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DAMAGE  BOOK 


Text  problem  book 


m<OU   166628  >m 


-eg 


INDIAN  CASES 

CONTAINING 

FULL  REPORTS  OF  DECISIONS 

OF 

The  PRIVY  COUNCIL,  the  High  Courts  of  ALLAHABAD, 

BOMBAY,   CALCUTTA,  LAHORE,  MADRAS, 

PATNA  arid  RANGOON,  the    Courts  of  the  Judicial 

Commissioners  of  CENTRAL    PROVINCES, 

OUDH  and  SIND 

REPORTED  IN 

The  following  29  Legal  Periodicals: 

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

A  large  number  of  extra  Rulings  not  reported  elsewhere. 


VOLUME  92,    1926. 


Founded  by 
Hhalmb-ufl-nin.  Chaudhri,  U.A.,  LL  B.,  M.  L.  0  , 

Now  President,  Legislative  Council,  Punjab. 


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

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

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


CONSOLIDATED 

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

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


tfccu 

_.  ._-   .  

ttj  <v> 

9  tuo  . 

fl  bO   . 

Names  of  Parties. 

£   C3   o> 

l£o 
&§-« 

Names  of  Parties. 

w 

Pnfl_J 
*Q   Ctf  " 

<u 

£*£ 

&' 

£*,3 

fn    O 

V-<   O 

& 

$>*$ 

$>" 

1 

Shiva  Nath  Prasad  v.  Tulsui  Ram  .  .  . 

89  4  SO 

67 

Bishnath  Singh  v.  Basdeo  Singh    ... 

88    484 

4 

Faqir  Cliand  v.  Sant  Lai 

89   21)1 

70 

Nageshar  Rai  v.  Nund  Lai 

88   908 

6 

Kashi  Prasad  v.  Mathura  Prasad   .  . 

89    286 

73 

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

89    882 

9 

Jagannath  Prasad  v.  Jugal    Kishore 

89   492 

77 

Tajammul  Husain  v.  Banwari  Lai  .. 

88    752 

12 

Jogamaya  Dasi  v.  Tulsa                  .  . 

89    444 

81 

Darshan  Das  v.  Bikramajit  Rai      — 

89    953 

17 

Muhamdi  Bcgam  v.  Tufail  Hasan 

92   260 

88 

Fateh  Singh  v.  (Jopal  Narain  Singh 

89  1013 

19 

Zorawar  Singh  v.  Bhagwan  Singh  .. 

89   427 

94 

Agha  Husain  v.  Qasim  Ali 

89  1018 

23 

Emperor  v.  Kamlapati  Panth 

91      51 

97 

Makundi  Singh  r.  Parbhu  Dayal    .  . 

9O       2 

27 

Zahur  Ahmad  v.  Taslim-un-iiissa  .. 

89   40  4 

104 

Kehri  Singh  v.  Thirpal 

92    282 

31 

Bhakta  Shiromani  v.  Sital  Nath     . 

88  1018 

121 

Sultan  Begam  v  Sarvi  Begam 

9O   274 

34 

Shiam  Lai  v.  Radha  Ballabh 

88    822 

126 

Kishan  Dei  v.  Sheo  Paltan 

9O    258 

44 

Brij  Raj  v.  Rani  Sarup 

9O    749 

140 

Emperor  v.  Ram  Harakh  Pathak    .  . 

90    913 

58 

Muhammad    Shafiq-Ullah    Khan  v 

145 

Ram  Kunwar  v.  Govind  Ram 

92    414 

Nuh-l  llah  Khan 

88    054 

150 

Mulraj  v.  Indar  Singh 

92   471 

60 

Kanhaiya  Lai  v.  Bhagwan  Das       -» 

89  1053 

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


1 

13 
21 

26 
30 
33 

48 
52 

56 
63 
65 
67 
69 
80 

83 
88 
91 


Kuar  Mata  Prasad  v.  Kuar  Nagcshar 
Sahai 

Ram  Pratab  Chamria  v.  Durga  Pra- 
sad Chamria 

Mahadeo  Sahu  v.  Sarju  Prasad 
Tewari 

Narain  Das  v.  Ram  Chandra 

Amir  Ahmad  v.  Emperor 

Sourendra  Mohan  Sinha  v.  Hari  Pra- 
sad Sinha 

Bansilal  Abirchand  v.  Ghulain  Moh- 
bub  Khan 

Lai  Bahadur  Lai  v.  Kamleshar 
Nath 

Ram  Sarup  v.  Gaya  Prasad 

Jagat  Narain  Lai  v.  Hawaldar 

Pirthi  Nath  v,  Kunji  Kunwar 

Kedar  Nath  v.  Bisrnillah  Begam    . . 

Fatima-ul-Hasna  v.  Baldco  Sahai     ., 

Sultan  Muhammad  Khan  v.  Em- 
peror 

Bisheshar  Prasad  Pandey  v.  Raghu- 
bir 

Ahmad  Husain  v.  Muhommad  Qasim 
Khan 

Dip  Prakash  v,  tBohra  Dwarka  Pra- 
sad 

^=r^ 


91  370 

92  633 

91  871 

90  HO 

91  47 

91  1033 

92  760 

9O  988 

9O  180 

90  287 

89  369 

90  72 

93  24 

90  026 

90  353 

90  80 

90  83 


97  I  Jawahir  Singh  v.  Udai  Parkash 

100  I  Al  aha  raj    Bahadur   Singh     T.    Seth 

Hukum  Cliand 

105  Lai  Cliand  Mar  wan  v.  Ramrup    Gir 

112  GhurahuDas  v  Shnkalraj  Das 

116  Bakhtawar  v.  Sunder  Lai 

120  Ahmad  Husain  Khan  v.  Hardial    ,.. 

122  Dwarka  Prasad  v.  Makund  Sarup   ... 

125  Jeut  Koeri  v.  Mathura  Koeri 

128  Amir  Hasan  Khan  v.  Emperor 

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

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

149  Bachan  v.  Raghunath 

150  Panna  Lai  v.  Emperor 

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

161  Kashi  Prasad  v.  Emperor 

162  Kadhori  v.  Emperor 

163  Ram  Sarup  v.  Emperor 

165  Shyain  Sunder  Sinha  v.  Emperor  ... 

167  Sumaria  v.  Emperor 

168  Raghunath  Kaudu  v.  Emperor     ... 


93  21C 

93  219 

93  280 

91  59 

9O  992 

9O  243 

9O  290 
90 
91 


90 


787 
37 
99 


9O   238 


91 
90 
91 


34 

938 
53 


92  26i 

40 
959 

49 
533 

588 


91 

91 

91 

91 

92 

92   452 

92   4*6 

To  be 
printed. 
y|     882 
91    888 


ii  INDIAN  CASES.  [1926 

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


170 

Kalka  r.  Ran  jit  Singh 

91     704 

224 

Emperor  T.  Daulat  Singh 

92    743 

171 

Khamani  v.  Emporer 

92    584 

225 

Mohammad  Ayub  v.  Surajpal  Singh 

91    783 

173 

Abdul  Hafiz  Khan  v.  Emperor 

92    441 

227 

Lallan  Misir  v.  Ram  Richcha          .  . 

93   690 

176 

Abdullah  v.   Badr-\il-l«lam 

91     C34 

228 

Emperor  v.  Kesar 

92    591 

178 

Chhidda  v.  Emperor 

92    463 

230 

Jalal  Uddin  v.  Emperor 

92    857 

180 

Ram  Nath  v.  Emperor 

94    897 

235 

Gopal  Das  v.  Baij  Nath 

91    930 

185 

Mittar  Sain  v.  Data  Ram 

9O  3000 

239 

Faujdar  Mahto  v.  Kmperor 

91    815 

208 

Kallu  T.  Emperor 

91    SOS 

241 

Radha  Kishim  v.  Kashi  Math 

92   510 

210 

Kishen  Praaad  v.  Kunj    Behari  Lai 

91     790 

244 

Muhammad  Ibrahim  v.  Ram   Chan- 

215 

Baliadura  T.  Emperor 

92    4flO 

dra 

92   514 

21G 

Banwari  r.  Emperor 

91    814 

248 

Kunwar  Chiranjit  Singh  v.  liar  Swa- 

217 

Banwari  Lai  Y.  Jhunka 

92    454 

lup 

94    782 

221  1 

Qazi  Fariduddin  r.  Emperor 

94    894 

32 
34 

42 
49 
56 

1 
11 

25 
46 
49 
60 
64 

67 
71 

73 

75 
78 

7d 

89 

91 
95 

98 
99 
102 

111 
115 

126 
138 


69 

91 

817 

84 

92 

367 

87 

SI 

949 

91 

86 

66 

107 

91 

342 

y3 

225 

111 

50  I.  L.  K.,  BOMBAY  SERIES, 

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

Leon    Moses    v.  Solomon 

Emperor  v.  By  ram  Nowroji  Ga- 
madia 

Emperor  v.  Nathu  Kasturchand 
Mar  wad  i 

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

Emperor  v.  Dawood  Kazi 

,  28  BOMBAY  LAW  KEPORTER 

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

India 
Bapu    Hambira    Patil    v.    Shankar 

BahuPatil 
Kasamkhan     Alimedkhan  v.    Kaji 

Abdulla 
Kasamkhan    Ahmedkhan    v.     Kaji 

Isub 
Larnbodar  Dhonddeo  Deo  v.  Bharani- 

dhar  Ganesh  Deo 

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

Gangaji  Ambaji  Metry 
Bhimanna    Ivuniaji  v.      Venichand 

Fattechand 
Hueensaheb  Gtjbarsaheb  v.  Haian- 

saheb  Sayad  Abdul 
Hueseinsaheb  Haidarsaheb  v.  Babaji 

Dhonddev 

Emperor  v.  Kazi  Dawood  Kazi 
Ravishankar    Jagjivan    v.   Savailtl 

Kriehnalal 

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

Sonavni 

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

Dubaah 

Emperor  v.  Ramnath  Mahabir 
Emperor  T.  Harjivan  Valji 


Mrs.   Flora  Saeioon  v. 
Mama 

Pestonji     Shapurji    r, 
Nowroji 


Ardeflhir  H. 


Jarnehedji 


93  151 

141 

93  161 

143 

93  184 

148 

93  213 

158 

93  135 

161 

173 

93  127 

187 

93  195 

93  142 

193 

204 

93  123 

211 

93  215 

21T 

220 

93  218 

239 

93  222 

93  225 

337 

93  240 

243 

93  244 

2G4 

93  150 

271 

93  158 

93  247 

281 

93  232 

288 

93  690 

291 

To  be 

293 

printed. 

297 

398 

To  be 

300 

printed. 

94   D 

FOR  JANUARY  FEBRUARY,  1926. 

Parashuram     Shamdasani    v.    Tata 
Industrial   Bank 

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

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

Viahwunath  Shamba  Naik    v.  Ram- 
krishna 

Chunilal  Mokamdas  v.  Mrs.  E.  Chris- 
topher 

Emperor  v.  Ramnath  Mahabir 

FOR  JANUARY-FEBRUARY,  1926. 

Framroz      Ecluljre      Dinshaw      v. 

Mahomed  Essa  .-. 

Navanitlal  Hurjivandas  v.  Purshot- 

tam  Hurjivan 
Purshottam  Hurjivan  v.   Navanitlal 

Hurgovandas 
Emperor     v.    Shan     Ahmed    Nabi 

Ahmed 

Saklat  v.  Bella 
Vaithialinga  Mudaliar  v.  Srirangath 

Anni 
Homeshvar  Singh  v.  Jugal   Kishore 

Marwari 

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

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

Central  Bank  Limited 
Girdhardts     Coorji      v.     Kerawala 

Karsandas  A  Co. 
Indaji   Majaji  v.   Cooverji  Nowroji 

Gamadia 

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

Abdullahbhoy  Lalji 
Emperor       v.      Abasbhai      Abdul 

Hussein 
Emperor  v  Kutubuddin  Khan  Aeh- 

raf  Khan  ... 

In  re  Mahomed  Azam  ... 

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

Emperor  v.  Maridas  Lazar 
Emperor     v.      Shankar      Narayan 

Gosavi 


91  153 

92  548 
92    517 
92    537 

92  368 

93  690 

94  21 
94     11 
94     15 

92  213 
92  200 

92     85 

9O  596 
89  049 
92  289 

92    760 

92  633 

93  619 
93  622 

93   £52 

93   857 

93  918 
93  967 

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

93  1051 


Vol.  92J  CONSOLIDATED  COMPARATIVE  TABLES.  ill 

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


302 

In  re  Mangru  Feku  Mom  in             .  . 

To  be 

509 

Shankarlal       Purshottam     Gor     v 

printed. 

Dakor  Temple  Committee 

94     47 

305 

Narayan     Govind    Deahspanda    v. 

323 

Rachel  Benjamin  v.  Benjamin  Solo- 

Dhondo Krishna  Tathe 

94     76 

mon  Benjamin 

94     59 

307 

Rupchand  Ganesh  v.  Bhogilal  Ratan- 

in 

Vasantrao  Govindrao  Prabhakar  v. 

chand 

94     72 

Nanabhai  Sadanand 

94     95 

1 

6 

14 
34 
42 

46 
51 

65 
76 

1 

8 

14 

23 
37 
41 

45 

51 
67 
70 
79 

83 

94 
100 
104 


169 

173 
178 

180 
183 

V 


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

Bhupendra  Narayan  Singh  r.  Madar 

Buksh 
Bhupendra  Narayan  Singh  v.  Nara- 


pat  Singh 
Bidyadhar  Bachar  v.  Manindra  Nath 

Das 
Meher  Bano  Khanum  Y.    Secretary 

of  State  for  India 
Nareeh    Chandra  Bose  r.  Krishna 

Bhabini  Dasi 

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

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

Kanoolal  &  Co. 


88 

92 

681 

95 

90 

607 

101 

89 

?26 

103 

89 

997 

115 

133 

94 

997 

129 

9O 

308 

131 

89 

200 

157 

163 

95 

21 

89 

789 

Banailal      Abirchand     v.     Ghulam 

Mahbub  Khan 
Chandi    (Jharan  Mitra  Y    Ashutosh 

Lahiri  .  . 

Reference     from    the    Munsif,     4th 

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

Nath  Deb 

Kabatulla  v.  Emperor  .  . 

Ramkumar  Sewchand  Roy  v.  Nanu- 

ram  Poddar 


Emperor  v.  Isabella    Coal  Company 

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

Debendra  Nath  Sinha  v.  Nagendra 
Nath  Sinha 

P    Banerjee  v.  Bepin  Behary  Ghose 

Beni  Madhab  Sapui  v.  Jadu  Nath 
Sapui 

SivadasDutta  v.  Birendra  Krishna 
Dutta 


Bansilal  Abirchand  v.  Ghulam  Mah- 
bub Khan 

Homeshwar  Singh  v.  Jugal  Kishore 
Marvvari 

Ram  Protap  Chamria  v.  Durga  Pro- 
sad  Chamria 

Saklat  v.  Bella 

R.  M.  Watson  v.  F   K.  Watson 

Vernon  Mihvard  Bason  v.  A.  H. 
Skone 

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

Kuar  Mata  Prasad  v.  Kuar  Nageshar 
Sahai 

Shaft  Ahmed  Nabi  Ahmed  v.  Em- 
peror 

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

Superintendent  and  Rememberancer 
of  Legal  Affairs  v.  Kiran  Bala 
Dasi 

Nagendra  Nath  Roy  v.  Jugal  Kishore 
Roy 

Gopiram  Bhotica  v.  Bisseswar  Dutt 

Mahomed  Rafique  v.  Emperor 

Santosh  Kumar  Roy  v.  Rakhal  Chan- 
dra Hazra 


108 

92  760 

110 

90  506 

113 

92  633 

116 

92  200 

94  52S 

126 

94  532 

132 

135 

92  37 

142 

91  370 

146 

92  211 

152 

92  289 

155 

171 

93  73 

176 

9O  281 

180 

93  81 

93  70 

184 

187 

94  740 

202 

Jatindra  Chandra  Banerjee   v.  Mur- 
al id  hur 

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

bananda  Barman 
Sarajubalo,    Roy     Chowdhurani    v. 

Kmmini  Kumar  Chowdhury 
Gnanada    Gobindo      Choudhuri    v. 

Nalini  Bala  Debi 
Radha  Nath  Dutt  v.  Chandra  Kumar 

Dutt 
Jamini  Mohan  Sarkar  r.  Nagendra 

Nath  Pal 
Hem  Chandra  Jelia  Y.  Satya  Kinkmr 

Sen 

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

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

Chaudhurani 
Victor  v.  King-Emperor 


30  CALCUTTA  WEEKLY  NOTES,  FOR  JANUARY,  1926. 


Rajendra  Narain  Dhanj  Deo  Y.  Ku- 
mar Gangananda  Singh 

In  re  Gopaldas  Aurora 

Joriiia  Aktar  Khatun  v.  Hafizuddin 
Khan 

Upendra  Mohan  Roy  Chowdhury  v. 
Narendra  Mohan  Roy  Chowdhury 

Low  &  Co.  v.  Hazarimull  Babu 


89  737 
94  793 

186 
190 

90  633 

192 

9O  878 
94  780 

193 
196 

In   ike  matter  of  Rtjendra    Kumar 

Dutta 
Superintendent  and  Rememberancer 

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

Kondapalli  Vijaynratnam  v.  Manda- 

paka  Sudarsana  Rao 
Hashmat  Ali  v  Nasib-ul-Nisa 


92  760 

94  684 

89  289 
88  005 
91  417 

90  4 
94  731; 

94  212 

9O  542 

94  657 


95   245 

95     79 

94   907 
94   844 

94   873 

94  920 

95  130 
94   811 
94   837 
91    718 

891000 

91    935 

93  1018 

94  5 

93  1038 

94  611 
93  961 


94   893 

91    701 

Not 
reportable. 

89    733 
88  114 


199 
204 
209 
214 

215 
218 
228 

231 


1 
4 

10 
12 
15 
17 
21 

30 
32 
35 
40 


1 

3 

7 

10 
13 


18 
22 
29 

I 

18 
34 
36 
39 
42 
44 


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


Official  Trustee  of  Bengal    v.   W.  G. 

Bowden 
Taraprosad    San  v.  Madhu    Sudan 

Giri 
Gopiram  Behariram  v.  Agents,  East 

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

Mitter 

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

das  Khemkti 
Prosonna    Kumar    De     v.    Ananda 

Chandra  Bhat  tachar j  ee 

7  I.  L.  R.,  LAHORE 

Nand  Kishore  v.  Sultan  Singh 

Khizar  Hayat  v.  Allah  Yar  Shah 

Kamir  v.  Mewaz 

Sunder  Singh  v.  Ram  Nath 

Crown  T.  Raj  Pal 

Relu  Mai  v.  Ahmad 

Mir  Dad  v.  Crown 

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


8  LAHORE  LAW  JOURNAL,  FOR  JANUARY,  1926. 


[1926 


r 

233 

Surendra    Narain   Sinha     v.  Bejoy 

94   857 

Singh  Deodhoria 

89    785 

236 

Satya"  Ncranjun    Shaw  v.    Karnani 

91      35 

Industrial  Bank,  Ltd. 

93     56 

238 

Hari  Mati  Dasi  v.  Hari  Dasi  Dasi    .  . 

88  1041 

94   762 

240 

Mohammad  Keshab  v.  Emperor    ... 

91    703 

242 

Baijnath  Singh  v.    Vally    Mahomed 

94  871 

Hajee  Abba 

86    332 

87   513 

248 

Lucia  Jacob    v.    David  Alexander 

9O    198 

Wills 

89   824 

254 

Brajaballav  Ghose  v,  Akhoy    Bagdi 

93    115 

93     80 

259 

Ramanuj  Rai  v.  Dakshineswar  Rai 

93   101 

263 

Srinath  Bhattacharya    v.    Jatindra 

93     8G 

Mohan  Chatter  ji 

89   892 

SERIES,  FOR  JANUARY-FEBRUARY,  192G. 

93  1007 

42     Rugh  Nath  Dass-Ram  Sarup  v.  Sul- 

93  1009 

zer  Bruderer  &  Co. 

92    712 

931011 

50 

Sheru  v.  Crown 

94   406 

93  1013 

55 

Lai  Chand  v.  Hans  Kumar 

92   651 

93  1052 

61 

Jawahar  Singh  v.  E.  D.    Sassoon  & 

92    947 

Co 

94   377 

To  be 

65 

Chet  Singh  v  Crown 

94   401 

printed. 

70 

Ghulam  Jannat  v.  Crown 

94   403 

94   131 

73 

Qaim  v.  Nura 

94   422 

94    129 

77 

Fitzholmes  v.  Crown                        .  . 

To  be 

94     25 

printed. 

94     27 

80 

BhikaRamv.  Crown 

94   414 

Si 

Rannun  v.  Crown 

94   901 

Abdul  Khaliq  v.  Fateh  Mohammad  93    334 

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

Dhani  v.  Biru  ...  93    337 

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

v.  Ogilvie  ...  93    314 


32 
35 
39 
43 
47 
51 


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


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

Hope  Prudhomme  &  Co.  v.    Hamel 


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

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

Rukku  Shetti  v.  Ramachaiidraya    ... 


88    307 

To  be 
printed. 


91 
92 


940 
342 


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


49 

71 
74 
98 

116 


50  MADRAS  LAW  JOURNAL, 

Surendra    Mohan     Sinha   v.    Hari 

'  91  1033 


Mahammad  Raza  Saheb  Belgami   v. 

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

Mudaliar 
Ayiswaryanandaji    Saheb  v.  Sivaji 

Raja  Saheb 


93    355 
93    351 

92  1012 

93  369 
93    695 

To  be 
printed. 


To  be 
printed. 

92  918 
9O    659 
9O   297 

93  662 
92   928 


FOR  JANUARY-FEBRUARY,  1926. 


V. 

Prasad  Sinha 

Kuar  Mata  Prasad  v.  Kuar  Nageshar 
Sahai 

Palaniappa  Chettiar  v.  Rajetwara 
Sethupathi  A vl 

Akella  Kesavaramayya  v.  Visamsetti 
Venkataratnam 

Bulkee  Bee  v.  Kaka  Hajee  Muham- 
mad Ummar 

Ramaswanri  Goundan  v.  Alagia 
Singaperurnal  Kadavul 

Kandasami  Chetty,  In  re 


91 
92 
92 
93 

92 
92 


370 

366 

626 

99 

823 
862 


46 

48 
49 

51 
51 

59 


Karnam  Venkatsubba  Rao  v,  Adina- 

raytna  Rao 
Narayanaswami    Pillai    v.    Gopala- 

krishna  Naidu 
Pazhaniandy  Tarakan  v.  Murukappa 

Tarakan 

Arumuga  Padayachi,  In  re 
Addepalli       Venkata      Gurunadha 

Ramaseshiah    v.    Akella  Kesava 

Ram  i  ah 
Raja    Rajeswara     Muthuramalinga 

Sethupathi  Avergal  v.  Secretary  of 

State  for  India  in  Council    (       ... 


92   472 
92   483 

92    124 

91  1000 

92  973 
92    311 


Vol.  92]  CONSOLIDATED  OOAfPARATIVE  TABLW.  f 

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


63 

07 
7* 
75 

77 
70 
90 
94 

97  | 

100 
102 
107 

112 


114 
116 
118 
120 


136 
114 

145 


10 
13 
16 
19 
22 
26 
29 
31 
36 


Commissioner  of  Income  Tax,  Madras 

v.    Krishna    Chandra    Gajaptthi 

Narayana  Deo 
Mahadeva    Aiyar   v      llamakrishna 

Reddiar 
Vadrevu  VUwasundara  Kao  Bahadur 

r.  Vannam  Paidigadu 
Venkatanaraeimha  Rao   v.  Hemadri 

Suryanarayana 
Krishiiamachariar     v.       Municipal 

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

Chetty 
Muthuvenkatarama  Reddiar  v.  Ofli- 

cial  Receiver  of  South  Arcot 
Rukmani    Animal      v.    Mulhurama 

Reddi 
Vasireddi  Sree  Chandra  Mouleswara 

Prasada   Bahadur  v.    Rameswara 

Somayajulu 
Parasurama  Mudaliar  v.  Muthuswami 

Pillai 
Vecrasami  Mudali  v.  Vcnkatachbla 

Mudali 
Mulkoori       Gavariah      v.      Chenna 

Sariah 

Kancherla  Pushkaramba  v.  Nagarat- 
namma  • . 

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

State  for  India  in  Council 
Koyyalamudi     Subanna   v.    Koduri 

Subarayudu 

Subhan  Ali  v.  Imami  Begam 
Imani  Satyanarayana  v.  Devarakonda 

Satyanarayanamu  rthi 
Mulugu     Chengayya      v.     Aruvela 

Devasanamba  Garu 


91  940 

92  053 

91  485 

92  P02 

91  933 

92  1021 
92  398 
92  747 

92    402 

91  313 

92  20 

To  be 
printed. 

Not 

'epoi  table 
9*  337 
92  770 
88  198 

86   654 

92  805 
88  347 


92     85 
92    720 

23  LAW  WEEKLY,  FOR 

Shaft  Ahmad  v.  Emperor 

Bansilal  Abirchand  v.  Ghulam  Mah- 

bub  Khan 
Bhupendra  Narayan  Singh  v.  Madar 

Buksh 

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

shmi  Narayana 
Pazhaniandy  Tarakan  v.  Murukappa 

Tarakan 
Nomula  Ramayya      v.    Nadipineni 

Appayya 
Trustee!,    Parakkat    Devaswom    v. 

Venkatachalam  Vadhyar 
Swaminatha  Odayar  v.    Thiagaraja- 

swami  Odayar 
Kommineni  Appalasvvamy    v.  Kom- 

mineni  Simhadri  Appadu 


Municipal    Council,     Tuticorin    r. 

Shunmugha  Moopanar 
Thanappa   Ohetty   v,    Dsuf    Khan 

Safe'tT 


92  312 

92  760 

92  681 

92  726 

9!  660 

92  124 

91  452 

92  709 
92  846 
92  844 
92  610 
92  753 


148 
150 
153 
157 
161 

172 
176 

1(0 
Ib3 


190 
191 

200 
205 
208 
213 

215 
221 

228 

232 
234 
237 
239 
242 


16 
51 


Venkata  Siva  Rao  r.  Chittoori  Rama 

Kristnayja  t  ••• 

Manepalli    Satyanarayanamurthi   v. 

Thommandra  Erikalappa  ^ 
Parakkat    T)evaswom    v.     Venkata- 

chellam  Vadhyar 
Rathan  Singh    v.    Oommissirmer  of 

Income  Tax 
R»:;iur')|  i1^    Pandarathar    v.     Tiru- 

pathia  Pillai 

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

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

Pillai  *  - 

Venkatesam  Chetty  v.    Mothichand 

Gulabchand 
Rajendni      Narain   Dhanj   Deo      v. 

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

Ithalutty  ••• 

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

Chettiar 

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

Mudaliar 
Solayappa    Naicker     v.   Shunmuga- 

sundaram  Pillai  ••  ' 

OlHcial  Receiver,  Tanjore  v.  Sankara 

Aiyar  • 

Cheggaumull     Sowcar     v.      Desur 

Manicka  Mudaliar 
Kandala     'Hiiruvenkatacharlu      v. 

^Altoo  Saliib 

JANUARY- FEBRUARY,  1926. 

Nowroji  Rnstomji  Wadia  v.  Govern- 
ment of  Bjinbay 

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


56 

58 

63 
69 
75 
80 


81 
85 
87 


90 


Arumuga  Pa«layachi,  In  re  . 

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

katagiri  P.ittar  • 

Lakshmana  Aiyar  v.  Sankarapandiam 

Pillrl  T1  • : 

Chidnmbara-n  Chettiar  v.  Parvatlu 

Achi 
Mahabir  Prasad  Tcwari  v.    Jainuna 

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

dry 
Sankaranarayana  Roddi  v.  Koppaya 

Reddi  •- 

Vadappalli  Varadacharyulu  v.  Khan- 

davilli  Narasimhacharyulu 
Subbain    Goundan     v.    Sennimalai 

Goundan 
Vellayan  Ambalam,  In  r* 


92  700 

92  062 

92  709 

92  1051 

95  12 

92  524 

92  iH3 

92  57o 

Not 
re  portable. 

93  293 

89  737 

92  533 

94  526 
92  977 

94  557 

92  782 

93  49 

94  5G1 
93  356 

92  989 

93  3 

93  271 

94  384 
94  45S 


90  48 

83  440 

9J  1000 

92  245 

93  27G 
93  16 
92  31 

92  249 

91  973 

92  615 

92  400 

91  960 


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


[1926 


92 
9 

99 
101 
103 

105 

138 

14 

149 

151 

157 

161 

168 
17S 

175 
178 
182 

186 
193 
199 

205 
210 
213 
213 
215 
219 
220 


Muthuveeraswami    Nayudu  v.   Aii- 

namalai  Chettiar 
Chittammal  v.   Ponnuswamy   Naic- 

ker 

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

nayya 
Govindoss  Chathurbhujadoss  &  Co 

v.  Sukdevadoss  Ramprasad 
Sura  Lakshmiah  Chetty    v.  Kothan- 

darama  Pillai 
Rarnachandra        Aiyar,         OiTiciaJ 

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

Chettiar 
Muhammad  Yakub  Sahib  v.  Mahaboi 

Bi  Bi 
Banjoisi     Narasamma   v.    Banjoisi 

Saraaamman 
Pachayappa  Chetti  v.  Sivakami  Am- 

mal 

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

Swarup 
Kuppuswamy  Mudaliar  T.  Chokka- 

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

Noorbhai  /.  Karuppan  Chetti 

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

Reddiar 
Sankaran  v.  Vattkkiniyedath  Kiran- 

gat  Manakkal  Sreeduaran 
Muthayan  Chettiar  T.  Panchavarna 

Nadar 
Komaraswami   Chetti    v.    Sundara 

Mudaliar 
Vuyyuru  Lakshma    Reddi  v.    Alia 

Virareddi 
tfuthuswami     Aiyyar     <&    Sons    v. 

Ramalinga  Mudaliar 
Hahalakshmi    {Animal    v.    Venkata 

Naicker 
Lai  Bahadur  v.  Ambika  Prasad      ...  i 


91  1056 

92  57; 
92    62 
92    75C 

92  79( 

93  169 
88    327 

93  271 
92  971 

94  756 
92  61 

91  671 

92  524 

94    783 

91  454 

9O    551 

Not 
e  portable 

93  20 

92  977 

92  653 
90  316 

93  641 
92  724 
86  957 

94  334 


93  446 
91  471 


I 


22 

23: 

240 
262 
2<55 
267 

272 

277 

281 

296 
300 

305 

308 
311 
314 
319 
320 

327 
336 

3:59 
349 
353 
361 
364 
367 


Kaliakkal  v.  Palani  Koundan 
Kesavalu  Naicker  v.   Corporation  of 

Madras 
Dust    Muhammad   Khan    Sahib    v. 

Kadir  Batcha  Sahib 
Mcer  Mahomed    Noorulla    v.   Mari 

Naiijappa  Nainivaru 
Dharman    v.   Zamiudar  of  Ettiya- 

puram 
Rat han   Singh  Y.   Commissioner    of 

Income  Tax  to  the  Government  of 

Madras 
Mathilda  Sicev.  Fritz  Gaebele 

Komirisplti  Satyanarayaaa  v.  Veer- 
anki  China  Venkatarao 

Vemulapalli  Seetharamamma  v.  Ma- 
ganti  Appiah 

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

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

Gutha  Viraraghavayya  v.  Vemula- 
palli Ramakotayya 

Muthuraman  Chettiar  v.    Uppaluru 

Scctharamayya 
Arunachallam  Chetty  v.  Abdul    Su- 

ban 
Venkata      Gurunadha     v.     Kesava 

Ramiah 
Doraiswaini  Aiyar  v.  Balasundaram 

Aiyar 
Proprietor    of   Pedamamidipalli    v. 

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

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

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

Pathar 
\asi    Aiyar    v.     Official    Receiver, 

Tanjore 
Juduthuru   Thimmappa   v.      Bala- 

krishna  Mudaliar 
vaki  Narasamma  v.  Kaki  Venkata- 

raju 
iangayya  Naidu  T.  Basana  Simon 


92   533 
92  1053 

92  950 

93  259 
93     H 

92  1051 

To  be 

printed. 

To  be 
printed. 

92  827 
91  1024 

93  877 

To  be 
printed. 

91  985 

93  356 

92  973 

94  420 

94    164 

93  8 

93  639 

94  955 
94     68 
93   914 

92  915 

93  686 

94  639 


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


1 

Narayana  Tyengar  v    Thippayya    ... 

92    847 

22 

Soundararajan  v.  Natarajan 

92   289 

2 

Meer  Mohammad    Noorulla  Sahib  v. 

27 

Subramaniam  Chetty  v.  Ramaswami 

Mari  Nanjappa  Nainivaru 

93   259 

Chetty 

91      11 

4 

Meenakshisundara  Nachiar  v.  Veer- 

29 

VenkaUiswami  v.  Kotilingam 

91  1051 

appa  Chettiar                              .  . 

92    838 

32 

Han  m  ant  Rao  v.  Emperor 

89    843 

5 

Suppu  Chetti  v.  Arunachalam  Chet- 

33 

Bhadrayya  v.  J  .:,.  ,v  •  '  . 

91  1017 

tiar 

Not 

34 

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

reportable. 

linga  Mudaliar 

91    454 

6 

Ramaswmy   Chetty  v.  Chengalroya 

36 

Subbramaniam  Patter  v.  Velu  Nair 

92   481 

Pillai 

94    892 

38 

Gonnabathnla  Thammayya  v.  Gonna- 

7 

Imani  Satyanarayana  v.  Devarakonda 

bathula  Chinnayya 

92   594 

Satyanarayanamoorthy 

92      85 

40 

Kasturi  Narasimha  Suryanarayana 

8 

Rajamanicka     Chetty   v.    Venkata- 

v   Achuthana  Lakshminarasimham 

91    924 

ramanaRao 

93     84 

41 

Nee  Jam  Venkataratnamma  v.  Venja- 

9 

Butchiraj  u  v.  Seetharamay  ya 

93   955 

moori  Narasimhacharyulu 

92   470 

11 

Vaithilinga  Mudaliar  v.  Srirangath 

45 

Rarnu  Chetty  v.  Panchammal 

92  1028 

Anni 

92     85 

^       1 

J3 

Vol.  92]  CONSOLIDATED  COMPARATIVE  TABLES. 

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


Yii 


4 

4 

6 
63 


66 


69 

73 

81 


94 

96 

101 
106 

108 
112 

114 
116 
117 

118 
120 
121 

123 
124 

126 
128 


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

sad  Binha  ...     9 1  1033 

Shall  Ahmed  v.  Emperor  . .      92    212 

Muthu  Veerappa  Chettiar   v.   Siva- 

gunmatha  Pillai  . . .     92    603 

Pasumarti  Seethanna  r  Thammandra 

Yasikalappa  ..      91     765 

Manem  Ayyanna  v.  Pultrarti  Veera- 

bhadram  ...     91    771 

Tulasidais    Oovindjee  v.  Madhava- 

dass  Laljee  ...      92    570 

Raja  Rajindra  Narain  Dhanj  Deo  v. 

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

Mudaly  ..      93    338 

Knar  Mata  Prasad  v.  Knar  Nageshar 

Sahai  ...     91     370 

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

Chetty  ...      92    516 

Bansilal     Abirchand     r.     CJhulam 

iMahbub  Khan  ...      92    760 

Thirumalachariar  v.  Atimoola  Kara- 

yalar  .  .     92    776 

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

perumal  Kadarul  ...      92    823 

Ram  as  \vami    lyengar    v.    Raghava 

lyengar  ...     92  1046 

Muthu veeraswami    Nayudu    v.  An- 

namalai  Chettiar  .        91  105G 

Chittammal   v.  Ponnuswamy  Naic- 

ker  ..      92    573 

Caliba  Sahib  v.  Subbaroya  Aiyar  92    621 

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

shrni  Narayana  ...      91     660 

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


129 
131 
135 
137 
140 
141 
143 


146 
147 
149 

152 
156 
159 
162 
163 

165 
167 

169 

169 
172 
174 

178 
180 

182 
192 


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

of  Kalagampudi 
Numula     Ramayya    v.    Nadipinerii 

Appayya 
Madura  Hindu  Premanent  Fund  Ltd. 

v    Kainakshi  Ammal 
Swaminatha  Odayar  v.   Thiagaraja- 

s  warn  i  Odayar 
Akolla  Kesavaramayya  v.  Visamsetti 

Venkataratnam 
Bulkee  Bee  v.    Kaka  Hajee  Muham- 

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

Kesaya  Ramiah 
Lakshmana  Aiyar  v.  Sankarapandiam 

Pillai 
Chidambaram  Chettiar  v.   Parvathi 

Achi 
Ramachandra     Aiyar     Y.     Sankara 

Aiyar 
Seetharama  Naidu  Y.    Govindaeami 

Chettiar 
Banjoisi    Narasamma     v.    Banjois'i 

Sarnsamman 

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

tiar 
Akclla  Ramasomayajulu    v.   Official 

Rcceirer,  Godaveri  at  Rajahmun- 

dry 
Tiruvangalath    Nellyoton       Paidal 

Nayar  v.  Emperor 

Chittammal  v.    Ponnuswamy  Naic- 
ker 


Mallappa  v.  Neelana  Gowdra 

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

Khan  Sahib 
Visvanatha  Mudali    v.    Doraiewamy 

Chinnatha  Rowther  v.  Karunji  Andi 


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


1 

3 

7 

11 

17 


1 

5 

11 


13 


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


93    212 

92  803 

93  196 
92    913 

To  be 
planted. 


22 
34 
40 
43 
45 


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


93  356 

94  164 

91  452 
94   487 

92  846 

92  626 

93  99 

94  782 
92    862 

91  1000 

92  973 

93  27(5 
93  1C 
93  271 
92  976 

92     61 
91    961 

91  714 

92  249 
92    624 
92   577 

£3    625 

92  621 

94   453 

91    193 

93  644 


92  646 

91  295 

94  380 

94  406 

94  3*6 


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


Ma1-  '1    --:-  i.1   v.  Emperor 

Templo    of    Sri     Ramchandra 
Khamlia  v.  Kanhaiyalal 

Maruti  v.  Ukarda 


of 


91  242 

92  121 

To  be 
printed. 
94   741 


14 
17 
19 
23 
28 
30 


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

Padmun  Singh  v.  Subransai 
Samsherkhan  v.  Abdul  Sattarkhan. 


94  754 
SO  734 
91  290 

295 
791 


91 
94 
94 


70 


Tilt 


i 

G 
10 
15 

19 
37 

42 
49 

53 
55 
61 

69 

95 

109 

111 

115 

121 


145 
156 


160 
165 

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


INDIAN  OASBfi. 

29  OUDH  OASES,  FOR  JANUARY-FEBRUARY,  1926, 


[1K6 


1 

Girdhari  Lai  v.  Emperor 

86    993 

23 

Munnu  Lai  v.  Hirde  Ram 

86  1008 

7 

Karya  Singh  v.  Shira  Katan   Singh 

86    913 

24 

Lulta  Prasad  v.  Ma  ha  raj  Bahadur  — 

87    316 

10 

Uma  Nalh  Bakhsh  Singh  v.  Janki 

26 

Ahmad  Mirza  Bog  v.  Allahabad  Bank 

Bakhsh  Singh 

86    864 

Ltd.,  Lucknow                              *-. 

94    317 

14 

Maharaj    Din    v.    Balbhaddar  Pra- 

31 

Ram  Parkiish  v.  Junki  Prasad 

88    203 

sad 

85   481 

37 

Qudratullah  Khan  v  Gulqandi        .  . 

89    570 

15 

Gaya  Praia  d  v  Jagan  Natli 

86   932 

44 

Nowal  Kislmre  v    ISmperor 

89    147 

18 

Mathura  Prasad  v.  Kunwar  Bahadur 

51 

A  dial    Singh  v.   Shnghunath    Kuar 

Singh 

87    284 

Babuain 

9O   470 

21 

Kandhai  Lai  v.  Anantu 

87    172 

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


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

Indian  Railway 
Kuar  Mata  Prasad  v.  Kuar  Nageshar 

Sahai 
Abhaidat    Singh    v.     Ragho    Indar 

Partab  Sahi 
Parbhu  v.  Puttu 
Peoples  Industrial  Bank  Allahabad 

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

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

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


,  126 

93  645  ! 

92  247   132 

92  675  ; 

138 

93  22 

144 

146 

91  370 

147 

119 

91  976 

95  995 

152 

154 

93  631 

9  £  34 

160 

92  685 

To  be 

166 

printed 

9*  193 

167 

95  1019 

93  1023 

170 

93  833 

172 

174 

91  927 

91  942 

176 

94  179 

178 

Pirtha    Singh    v.     Mohammad    Ali 

Mohammad  Khan 
Ganga,      Bakhsh      Singh  v.    Mania 

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

Khan 

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

Knar 
Ram  Prasad  v.  Khusal  Singh 

Masih     1'ddin    Ahmad    v.      Munir 

Ahmad 
Faqjr  Mohammad  Khan  v.  Shamhhu 

Dat 

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

Madho 

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

Singh 


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


Bengal  North  Western  Railway  v. 

Bansi  Dhar  .  . 

Saheb    Din     Raghnbar      Dayal     v. 

East    Indian    Railway  Company, 

Limited 

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

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


92  603 

228 

231 

93  22 

233 

92  744 

237 

92  212 

94  782 

241 

93  66 

245 

93  297 

93  378 

248 

92  685 

260 

93  108 

267 

95  271 

93  53 

274 

93  145 

277 

93  352 

93  02 

279 

93  927 

284 

93  310 

95  234 

* 

Mahomed  Saadat  Ali  Khan  v.  Kuer 

Lai 

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

Allahabad     v.     Mahesh      Charan 

Sinha 

Raghubar  Singh  v.  Gokaran 
Ganpat  Sahai  v.  Koshalendra  Pratab 

Sahi 

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

Singh 

Sheo  Ram  v.  Tula 
Devendra  Nath    v.    Ram     Rachpal 

Singh 

Yusuf  Khan  v.  Riyasat  Ali 
Haidari     v.     Nariandra     Bikramjit 

Singh 


94  188 

92  613 

92  732 

93  272 

95  463 
95  486 

94  788 
94    796 

93    873 

To  be 
printed. 

91  1020 

91  1014 
91  1031 
91  867 

91  1043 
91  1016 

91     917 


93  912 
95  596 
93  951 


93 
93 


631 
833 


93  962 
95  1019 
95  995 

92  637 

93  1023 

93  302 
93  446 


93    677 


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


Vol.  92J  CONSOLIDATED  COMPARATIVE  TABLES. 

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


1 

Aditya  Prasad  Singh  v.  Ram  Nara- 

63 

Jagwa  Dhanuk  v.  Emperor 

93    884 

yan  Das 

87    531 

80 

Midnapur    Zamindari    Co.,  Ltd.   v. 

8 

Subedar  Kai  v.  Rambilas  Rai 

9O    817 

Ram  Kanai  Singh  Deo  Darpa  Saha 

91     169 

13 

Raj  end  ra  Narayan  Bhanja  Deo    v. 

96 

Mahanth  Tokh  Narayan  Pun  v.Ram 

Commissioner  of  Income  Tax,  B. 

Rachhya  tiingh 

90    806 

&O. 

91    288 

106 

Agent  of  the  Bengal-Nagpur   Rail- 

20 

Ambika  Prasad  Singh  v.   Commis- 

way Company,  Limited   v.  Hamir 

sioner  for  Income  Tax,  Bihar  and 

Mull   Chagan  Mull 

9O    374 

Orissa 

93    999 

110 

Ramohandra  Modak  v.  Emperor    ... 

93   963 

23 

Khudi  Rai  r.  Lalo  Rai 

931001 

118 

Great  Indian  Peninsula  Railway  v, 

25 

Siban  Rai  v.  Bhagwat  Dass 

92    219 

Datti  Ram 

90   812 

33 

Daroga  Oope  v.  Emperor 

881045 

128 

Radhe  Lai  r.   East  Indian  Railway 

40 

Peari    Dai     Debitors     v.    Naimish 

Company,  Limited 

9O   680 

Chandra  Mitra 

9O   822 

135 

Sourendra  Mohan    Sinha     v.     Hari 

46 

Bibi  Wajihunnissa  Begum   v.  Babu 

Prasad 

91  1033 

Lai  Mahtou 

9O    871 

1-S7 

Sib  Sahai   Lai  v.    Sir  Bijai  Chand 

58 

Hira  Bibi  v.  RamHariLall         ...  1  89    659 

Mahtab 

9O   862 

(1926)  PATNA  CASES,  FOR  JANUARY-FEBRUARY. 

1 

Sri  Sri  Baidyanath  Jiu  v.  Har  Dutt 

29 

Ramdhani    Singh    v.    Kewai    Mani 

i      * 
•  '  "  ^ 

Dwari 

94   826 

Bibi 

9O    929 

4 

Sheikh  Abdul  Ghaifar  v.  Mrs.  F.  B. 

34 

Kuldip  Singh  v.  Kumar  Kamakhya 

Downing 

94    841 

Narain  Singh 

93   300 

9 

Bibi  Hafsa  v.  Kaniz  Fatima 

96       3 

37 

Badri    Narayan  Singh  v.    Mahanth 

11 

Uma  Jha  v.  Chetu  Mandar 

95    187 

Kailash  Gir 

93    303 

13 

Ramyad  Dusadh  v.   Emperor 

95    273 

40 

Hansraj  Sangechi  r.  Jogesar  Prasad 

88  1020 

16 

Mahari  Dhangar  v  Bnldeo  Narain  .. 

90   657 

42 

Malik     Mukhtar   Ahmad    v.     Wasi 

19 

Sib  Sahai   Lai  v.   Sir  Bijai   Chand 

Ahmad  Khan 

93    289 

Mahtab                                              .- 

90    862 

44 

Madaran    Kassab  v.  King-Emperor 

86    964 

24 

Sheikh  Mabub  Bakhsh  v.    Mahmu- 

49 

Ram    Golam    Sahu    v.     Chintaman 

dan 

93   273 

Singh 

93   939 

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


1 

Sadhu  Sao  v.  Awadh  Bihari  Saran 

71 

Prasana  Kumar  Banerji  v.  Kaleyan 

Singh 

89    802 

Char  an  Mandal 

90    352 

4 

Diljau  Ali  v.  Akhtari  Begum 

88  1035 

73 

Kesho    Prasad    Singh   Bahadur    v. 

9 

Sheikh  Imdad  Ali  v.  Nand  Kumar  Lai 

88    478 

Lakhnath  Roy 

89     21 

11 

Asharfi      Dhimar     r.     Muhammad 

75 

Garbhu  Mahton  v.  Bibi  Khudaijatun- 

Dindalal 

88    989 

nissa 

89    170 

14 

Jamal  Momim  v.  King-Emperor  ... 

86    153 

79 

Jang  Bahadur    Singh    v.  King-Em- 

* 

19 

Raja  Rajendra   Narain  Bhanj    Deo 

peror 

93     40 

y.  Kumar  Gangananda  Singh    ... 

89    737 

82 

Bhiumath    Misra      v.     Jaggarnath 

22 

Lekhraj   Mahton  v.    Jang  Bahadur 

Prasad 

89    814 

Singh                                              -. 

89   822 

871 

Bambhadur  Lai  v.  Gangora  Kuer  ... 

89    232 

25 

Sham    Narayan    Singh    v.   Basdeo 

90 

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

Prasad  Singh 

88   537 

Prasad 

9O    687 

27 

Nazirul    Hassan  v.    Abdul  AVahab 

95 

Sadho  Saran  Pande  v.  Subhadra    ... 

89    195 

Khan 

89    811 

97 

Sourendra  Mohan  Sinha  v.  Hari  Pra- 

30 

Badri  Gopo  v.  King-Emperor 

93    146 

sad 

91  1033 

35 

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

111 

Jogindra    Narayan     Chaudhuri     v. 

son 

90     74 

Chinai  Muhammad  Sircar 

89    275 

30 

Ram  Saran  Singh  v.  Mohammad  Jan 

114 

Ranjit  Narayan   Singh  v.  Ram  Ba- 

Khan 

89    706 

hadur  Singh 

94    593 

39 

Bibi  Hajo  v.  Har  Sahay  Lai 

89    992 

124 

Rai    Kashinath    Singh   Bahadur  v. 

42 

Sir  Rameshwar  Singh    Bahadur  v. 

Kailas  Singh 

89    236 

Durga  Mandar 

90  454 

127 

Lachman    Sahay  v.  Gauri   Charan 

45 

Sudha     Krishna    Mukerji    v.    East 

Mahton 

94   556 

Indian   Railway  Company 

9.1       1 

129 

Debi  Prasad  Dhandhaya  T.  Mahesh 

47 

Sahdeo    Singh   v.    Kishun    Behari 

Lai 

89     32 

Pandey 

90    559 

134 

Raghunandan     Thakur      v.     Babu 

49 

Sheodhari  Rai  v.  Jhingur  Rai 

83   993 

Kishundeo  Narain  Mahta 

To  be 

52 

Ram  Chandra  Singh  v.  Jang  Baha- 
dur Singh 

9O    553 

136 

Thakur  Sao  v.  Abdul  Aziz 

printed. 
91      41 

57 

Radhe  Lai  v.  East  Indian  Railway 

9O   680 

138 

Kawleshwar    Lai    v.    Satya    Brata 

611 

Ramjea  Prasad  v.  Bishundutt 

<?O    244 

Banarji 

9O    194 

65 

Gokul  Tatwa  v,  King-Emperor     ... 

89  1030 

140 

East  ladian  Railway  Co.   v.   Gober- 

6fc 

Haro  Mandal  v.  Dhiranath  Das    ... 

9O   691 

dhan  Das 

9O    790 

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


[1926 


i 

2 

4 

5 

6 

7 

8 

9 
11 
15 
17 
II 
19 
21 
21 
22 
23 

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

77 
80 
81 

83 
84 

87 
88 
19 

90 
90 
91 
95 

97 

98 
100 


Jowanda  Mai  v.  Emperor 

Akbar  Ali  v.  Raja  .Bahadur 

Emperor  v.  Syed  Khan 

Amir  Hasan  Khan  v.  Emperor     , . 

Harihar  Dat  v.  Maksud  Ali 

Data  Ram  v.  Emperor 

Panna  Lai  v.  Emperor 

Thakur  Sao  v.  Abdul  Aziz 

Emperor  v.  Param  Hukh 

Amir  Ahmad  v.  Emperor 

Daud  Khan  v.  Emperor  .  . 

In  re  Ayyaperumal  Pillai 

Kamlapati  Punth  v.  Empsror 

Emperor  v.  Ohet   Khan 

Emperor  v.  Bhima 

Yamunabai  v.  Emperor 

Nazar  Muhammad    Khan    v.   Hara 

Singh  Bedi 

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

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

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

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

tiar 

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

Annam  Naidu 

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

Sitaldas 

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

Venkiah 
Ramachandran  Servai  v.   President, 

Union  Board 

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


91 

9r 

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

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

91 
91 
91 

91 
91 
91 
91 
91 

93 
HI 
91 


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

55 

56 

5- 

50 

61 

62 

64 

65 

67 

61) 

70 

72 

75 

76 

76 

78 

22.1 

231 

236 

238 

210 

241 

242 

244 

245 

247 

249 

250 

251 

252 
253 
256 

385 
3H7 
388 
301 
392 

393 
394 
394 
395 


91     399 


91 
91 
91 


529 
530 
532 


101 
104 

105 

107 

107 

108 

10:) 
110 
in 

115 
113 
114 

in 

121 


120 

127 
128 
1-29 

132 


134 
136 
137 
13!) 
140 
142 
142 
113 
145 

146 
147 
150 
152 
153 
158 
159 

160 
161 
16  r) 
170 
175 
176 
177 
181 
182 

184 
1H5 
183 
186 
190 
191 
192 
193 


Munir  v.  Emperor 

Fazal  Ahmad  v.  Abdullah  Khan  ... 

Ramaawaini     Chettiar     v.      Rama- 

nalhan  Chettiar 
Buhri  v.  Emperor 
Devasikamam  Mudaliar  v.  Narayana 

Prasad 

Ramaswariti  v.  Emperor  ... 

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

bhai 

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

of  Legal  A (Taiis,  Bengal  v.  Sader 

Saik 
Marmlayya    Thevar  v    Shunmuga 

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

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

Sahu 

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

Baishnabi 

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

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


91  533 

91  536 

91  537 

91  539 


91 
91 


539 
540 


91  541 

*<  I  542 

91  543 

91  544 

91  689 

91  690 

91  600 

91  097 

91  699 


91  701 

91  702 

91  703 

91  704 

91  801 

91  804 

91  805 

91  806 

91  808 

91  809 

91  811 

91  812 

91  814 

91  814 

91  815 

91  881 

91  882 

91  833 

91  8S6 

91  888 

91  889 

91  891 


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


91 
91 

9!  960 
91  993 
91  997 

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

91  1003 

92  145 


Vol.  92]  CONSOLIDATED  COMPARATIVE  TABLfeB. 

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


210 

211 
212 
215 
217 
218 
220 
222 
223 
225 
228 

229 
230 

231 
232 
233 
235 
238 
239 

240 
241 
243 
247 
248 
249 
250 
251 


1 
2 
9 

13 
16 


1 

7 
17 

18 

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


Y'shwanath      Prasad      Pandey  v 

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

Pleader  .  92    214 

Tuisi  v.  Emperor  ...  92    215 

Amiruddin  v.  Emperor  ...  92    216 

Hari  Singh  v.  Emperor  ...  92    217 

Siban  Rai  v.  Bhagwat  Dass  .  .  92    219 

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

Bhushan  Sarkar  ...  92    223 

Miran  v.  Emperor  . .  9-2    224 

Pohlav.  Emperor  ..  92    417 

Kishanchand  v.    Emperor  ..  9i    419 

Daya  Kam  v.  Emperor  .  92    423 

Momoon  v.  Ibrahim  .  92    424 

Qaim  Din  v.  Emperor  ..  92    425 

Ram  Sarup  v.   Emperor  .  92   42Q 

Gulabchand  Rupji  v.  Emperor  ..  92    427 

ALL  INDIA  REPORTER, 

Privy  Council. 

Chiranjit  Singh  v.  liar  Swarup     ... 

Man  Singh  v.  Nawlakhbati 

Lai    Chand      Marwari     v.    Mohant 

RamrupGir 
Maharaj    Bahadur    Singh  v.     Solh 

Hukum  Chand 
•lawahir  Singh  v.  Udai  Parkash 

•     Allahabad  High  Court. 

Kishan  Dei  v.  Sheo  Paltan 

Mitar  Sain  v.  Data  Ram 

De  Mello  v.  New  Victoria  Mills  Co., 

Ltd. 
Jorhawan  r.   Municipal  Board,   Go- 

rakhpur 

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

Khan 


94-  782 

94  830 

93  280 

93  219 

93  210 


90    358 

87  724 

90    287 

88  814 
92    2(50 
90   2i)0 

?2i) 
51 

89  357 

89  105,  J 

90  150 
89    37!) 

89  1018 

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


91 


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

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


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

Hfitun  Mani  v.  Hans   Ram 
Bhola  v.  Emperor 

Kadhori  v.  Emperor 

Keramat  Mandal  v.  Emperor          . . 

Banwari  Lai  v,  Jhunka 

Thokala    Seshainma     v.     Yellaturi 
Venkamma 

Madat  Klian  v.  Emperor 

Bahadur  v   Emperor 

Tcja  Singh  v.  Emperor 

Chandiram  v.  Emperor 

Chhidda  v.  Emperor  .  . 

Ram  Kuran  v.  Emperor 

Klmmani  v.  Empoior 

Indar  Singh  v.  Emperor 

\Vasal   v.  Emperor 

Kashi  Prasad  v.  Kmperor 

limperor  v.   Gulab  .  . 

Krishna  Gopal  T.  Emperor 

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

Emperor  v.  Ghulani  Mohammad 

Emperor  v.  Kesar 

KaLip  Xath  v.  Emperor 


FOR  JANUARY-FEBRUARY,  1926. 

Allahabad  High  Court — contd. 


90     80 


47 
48 

50 
55 

57 
58 

62 
C>4 
05 
60 
67 
68 
70 
71 


79 
82 
83 
85 
87 
89 
90 
93 
95 
101 


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

92  456 

92  459 

92  460 

92  461 

92  462 

92  463 

92  577 
584 


Bankey    Lai  Kapoor  v.  Allahabad 

Bank  Ltd. 
Shanq     Ullah    Khan    v.    Nuhullah 

Kb  an 

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

nissa 

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

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

Khan 

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


585 


92 
92 

92  587 
92  5S8 
92 
92 


588 
589 
92  590 
92  590 
92  591 
92  591 


88  848 

88  954 

89  946 

89  404 

90  913 

90  353 

91  4H 
88  535 
88  1021 
88  746 
88  908 

88  829 

89  444 
£O  83 
89  617 

88  927 

88  964 

69  466 


87 
89 
89 


368 
161 
509 


89  492 

89  581 

90  274 
9O  91S 

89  9W 


rii  INDIAN  OASES. 

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


[1W6 


Allahabad  High  Court  —  concld. 

Bombay  High  Court~  concld. 

102 

Mulraj  v.  Indar  Singh 

92    471 

40 

Rachappa  Chanbasappa  v.  Ningappa 

103 

Misri  v.  Rajmati 

89    849 

Kasappa 

91    349 

111 

Megh  Baraii  Singh  v.  Rama  Das    .  . 

89    956 

42 

Sevadasji  Chandradasji  v.  Municipal 

113 

Kehri  Singh  v.  Thirpal 

92    282 

Corporation  for  the  City  of  Bom- 

111) 

Sahu  Banarsi  Prasad  v.    Kuer  Man- 

bay 

94   654 

mohan  Lai 

89   288 

43 

Chandulal  Maganlal  v.  Motilal  Hari- 

120 

Harakh  Sonar  v.  Gopi  Kishun 

89   134 

lal 

92    545 

122 

Ram  Sarup  v.  Emperor 

92   426 

44 

Collector   v.     Ramchandra    Haris- 

122 

Browne  v.  Pearce 

89    882 

chandra 

91    300 

124 

Narain  Das  v.  Ram  Chander 

90   116 

46 

Emperor  v.  Chand  Mahaboob 

9  1    699 

126 

Mahadeo  Prasad  v.  Harbans  Singh  .. 

89    179 

47 

N.  H.  Moos  v.  Government  of  Bom- 

127 

Abdullah  v.  Bad  r-ul-Islam 

91    934 

bay 

91    357 

128 

Darshan  Das  v.  Bikramajit   Rai   ... 

89   953 

49 

Gangaram    Hari     Teli    v.     Ganesh 

130 

Channu  Dutta  Vyas  v.  Svvami  Gyan- 

Pandurang  Ghanekar 

91    318 

nandji  Maharaj 

9O   976 

50 

Haji    Rehemtulla   v.     Secretary    of 

131 

Muhammad  Yusuf  Khan  v.  Mahadeo 

State 

92   351 

Prasad 

89    131 

51 

Usuf  Dadabhai  v.    Chand  Mahomed 

9  1    299 

136 

Bishnath  Singh  v.  Basdeo  Singh    ... 

88   484 

52 

Giriappa  Subanna  v.  Govindrao  Gan- 

136 

Beti  Bai  v.  Tantya  Singh 

89    574 

rao 

91    314 

140 

Bir  v.  Gajadhar 

89     19 

54 

Vishveshwar  Subrao     Kulkarni  v. 

141 

Kashi  Prasad  v.  Emperor 

92   588 

Sadashiv  Venkatramanayya  Harite 

93    930 

142 

Shiam  Lai  v.  Jotia 

89   383 

55 

Ramchandra    Trimbak     v.      Dattu 

142 

Ahmad  Husain  Khan  v.  Hardial    ... 

9O    243 

Rama  Patil 

91    347 

143 

Amir  Ahmad  T.  Emperor 

91      47 

57 

B.  N.  Gamadia  v.  Emperor              .  . 

91     949 

144 

Muhammad  Rahim  v.  Emperor 

89  1025 

62 

Emperor  v.  Subrao  Seslmrao 

91    543 

145 

Kashi  Prasad  v.  Mathura  Prasad     .. 

89    286 

63 

Derji     Padamsey    v.      Thommadra 

14C 

Gulab  Dei  v.  G.  I.  P.  Railway 

9O     99 

Erikalappa 

92    555 

147 

Emperor  v.  Parana  Sukh 

91      43 

64 

Emperor  v.  Piru  Rama  Havaldar  .. 

91     689 

152 

Shabhar  Hussain  v.  Abbas  AH 

9O    324 

153 

Ohunni  v.  Baldeo  Singh 

89     8!) 

155 

Reoti  Ram  v.  Laehman  Prasad 

89  402 

Calcutta  High  Court. 

156 

KedarNath  Y.  BismillahBegarn 

90      72 

157 

Ghurahu  Das  v.  Shakalraj  Das 

91      59 

157 

Faqir  Chand  v.  Sant  Lai 

89    291 

1 

Pryag  Kumari  Debi  v.   Siva  Prosad 

158 

Jagat  Narain  Lai  v.  Hawaldar 

9O    287 

Singh 

93    385 

159 

Harihar  Dat  v.  Maksud  Ali 

91      38 

56 

Shuncii  Bibi  v.  Mobarak  Ali             .-. 

87      94 

160 

Debi  Din  v.  Emperor 

91    959 

57 

Nandalal  Rai  v.  Mukundalal  De     ... 

89     24 

161 

Muhammad    Abdul  HatnidKhanv. 

59 

DwijendraNath  v.  Gopiram  Govind- 

Uda 

90    996 

ram 

89   200 

161 

H.bibButhv.    Samuel  Fitz  &  Co. 

65 

Sarat    Kaniini    Dasi      T.  Nagendra 

Ltd. 

89     22 

Nath  Pal 

89  1000 

164 

Babu  Rani  v.  Ram  Sarup 

89   410 

73 

Rakhal  Chand  ra  Bardhan  v.  Prosad 

165 

Jairaj  Singh  v.  Bansi 

91      67 

Chandra  Chatterjec 

9O   229 

166 

Roshan  Lai  v.  Maharaj  Prasad 

89    344 

80 

Rajendra   Nath     Datta    v.   Bhabini 

167 

Emperor  v.  Bhima 

91      53 

Dasi 

87    811 

168 

Miran  v.  Emperor                             .  . 

92    224 

82 

Husena  Banco  v.  Brojendra  Kishore 

Roy 

89   373 

Bombay  High  Court. 

83 

Kara    Mohan    Saha    v.    Sudhanshu 

Bhusan  Pal 

851002 

1 

India  Spinning  and    Weaving  Co. 

85 

Ram  Sundar  Das  v.  Satindra  Mohan 

Ltd.  T.  Climax  Industrial  Syndi- 

Tagore 

89   190 

cate 

91    347 

86 

Tara   Prasanna  Sinha  v.  Jnanendra 

13 

Kishenprasad  &  Co.  Ltd.  v.  Rajaram 

Narayan 

88  1039 

Ramharakh 

94   570 

87 

Nalini  Ranjan  Sen  Gupta  r.  Corpo- 

18 

Parashuram  D.  Shamdasani  v.  Tata 

ration  of  Calcutta 

89   781 

Industrial  Bank 

91    153 

89 

Emperor  v.  Mohit  Kumar   Mukcrjec 

91    993 

21 

Rupchand  v.  Jankibai 

91    817 

92 

Durga  Ram  Das  v.  ttharat  Ram  Das 

85   739 

26 

lianmavva  v.  Arenkappa 

91     305 

95 

Niranka  Sashi    Roy    v.  Swarganath 

28 

Pudumjee  &  Co,  v.  Moos 

91     334 

Banerjee 

9O   121 

21 

Mayashankar  v.  Burjorji 

91     978 

97 

Jotindra  Nath  Roy  v.    Narayan  Das 

33 

Dodbasappa  Dharmappa  v.  Pradhan- 

Khetry 

9O   901 

appa  Venkappa 

91    426 

100 

Adam  Sajan  &  Co.  v.  Asutosh  Bando- 

39 

Gulabchand  Ramsukh  v.    Ramsukh 

padhya 

86  1046 

Rampratap 

91    294 

102 

Rash  Behary  Karury  v.  Corporation 

of  Calcutta 

87,  970 

Vol  9^1  CONSOLIDATED  COMPARATIVE  TABLES. 

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


Lahore  High  Court. 

Madras  High  Court  —  contd. 

1 

Habib,  In  the  matter  of 

89   833 

31 

Muhammad     Sahib     v.     Alagappa 

4 

Hari  Singh  v.  Emperor 

92    217 

Ohettiar 

90  1042 

6 

Buta  Singh  v.  Jagu 

89   884 

33 

Muthukuruppa     v.      Sivabhagyath- 

7 

Dhanpat  Rai  v.  Qopal  Kuar 

9O  1052 

amnial 

9O    880 

9 

Kisheii  Chand  v.  Nank  Chand 

89    973 

35 

Raimiswami  Chettiar  v.   Lodd   Go- 

10 

Natha  Singh  v.  Sundar  Singh 

92    258 

vindass 

91    612 

11 

Kanshi  Ram  r.  Prem  Singh 

89   879 

57 

Samu  Asari  v.  Anachi  Animal 

91    561 

12 

Allah  Wasai  v.  Emperor 

89    457 

39     Muhammad  Batcha  Sahib  T.  Aruna- 

13 

Ismail  v.  Ibrahim 

89    995 

chalain   Chettiar 

9O    875 

14 

Hussain  Bakhsh  v.  Sarbuland 

92    268 

42 

Ranganatha    Aiyar      v.      Srinivasa 

16 

Nur  Hussain  Shah  v,  Hussain  Bibi 

89    429 

Aiyengar 

90  1037 

19 

Haq  Dad  v.  Crown 

9O    927 

46 

Deiyac'hila    Aiyangar    v.    Venkata- 

20 

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

chariar 

88   967 

War  burton 

89    721 

50 

Periamurugappa  Asari  v.   Manicka 

21 

Devi  Chand  v.  Jai  Chand 

9O  1047 

Chetty 

87    213 

23 

Pars  Ram  v.  Tehu                           -, 

89    960 

51 

Salakshi    Animal    v.   Doraimanikka 

24 

Firm    Jai    Singh    Diyal    Singh    v. 

Nad;in 

9O   829 

Narmal  Das 

92    235 

54 

Kambhotlu  v.  AshreiT  Husaiu         .  . 

89   945 

25 

Daulat  Bam  v.  Ghulam  Fatima 

89    953 

55 

Venkatacharyulu    v.  Venkatasubba 

26 

Gopi  Chand  v.  Kirpa  Ram 

9O  1030 

Rao 

9O    725 

27 

Hari  Kishen  v.  Mulkh  Raj 

89   857 

57 

Madura  Dovasthanam  v.  Sundaram 

28 

Ismail  v.  Crown 

91      70 

Anna  vi 

91     525 

30 

Mohammad  Akram  v.  Mula  Singh  .  . 

89   414 

59 

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

9O    669 

31 

Ram  Rukni  v.  Daulat  Ram 

9O  1056 

62 

Ayyanna  v.    Pulavarti    Veerabhad- 

31 

Samail  v.  Haji                                 .  . 

89    378 

rain 

91    771 

32 

Budhu  Ram  v.  Kalu  Rain 

91      30 

64 

Durga    Bai   Animal    v    Ramanatha 

33 

Feroze  Din  v.  Ghulam  Fatima 

89   434 

Rao 

9  1    566 

34 

Begam  Bibi  v,  Bulaqi  Shah            .  . 

9O  1050 

65 

Subramaniu  Aiyar    v.   Shanmugam 

.35 

Iliirbli.'iuu.m  v,  Taja                       ., 

89   590 

Chettiar                                           .  . 

92    566 

37 

(iirdiiia   Mul  v-   Muhammad    Khan 

9O     41 

66 

Guntur    Nanisimham     v.     Nyapati 

39 

Padmun  v.  Achliar 

89    792 

Narayan  Rao  Garu 

92    405 

40 

Firm    of  Hira  Singh  Pritam  Singh 

72 

Sankaralinga    Mudaliar    v.    Official 

v.  Secretary  of  State 

9O  1054 

Receiver  of  Tinnevelly 

92    504 

41 

Khem  Chand  v.  Narain  Das  Sethi  ... 

89  1022 

78 

Chinna  Vavanan  v.  Chetkiappa  Chetti 

91      10 

43 

Kesho  Das  v.  Tulsi  Dass 

89   229 

81 

Veiiku     Shettithi    v.      Ramachand- 

45 

Suhan  Singh  v.  Emperor 

89    513 

rayya 

92    342 

47 

Firm  Bhogi  Lai  v.  Amar  Natli       .  . 

9O1012 

84 

Ayiswaryanandaji    Saheb  v.    Sivaji 

47 

Mainrez  v.  Emperor 

89    390 

Raja  Saheb 

92   928 

48 

Mohar  Singh  v.  Emperor 

88   4  50 

96 

Lakshmi  Animal,  In  re 

91     729 

49 

Dliawa  v.  Emperor                          .  . 

89   961 

101 

Krisknaswami        Bhagapathar       v. 

50 

Sawaii  Singh  v.  Emperor                 •  . 

89    705 

Thirumalai  Iyer 

9O    410 

51 

Muhammad  Sadiq  v.  Emperor 

89    458 

109 

Pachaiyappa    Chetti      v.    Sivakami 

52 

Ahmad  Gul  v.  Rahim  Khan 

89   831 

Animal 

91    671 

54 

Mohammad  v.  Emperor 

89    252 

112 

Naruyanasami     Pillai     v.      Gopala- 

'   6P 

Hazara  Singh  v.  Knvperor 

9O    153 

krishna  Naidu 

92    483 

A 

Babo  v.  Emperor 

89  1027 

113 

Viiihilintfji   Mudalipir     v.    Chidam- 

62 

Ramsaran  Dass   v.   Firm  Ram  Lai- 

baram  Pillai 

91    720 

Ram  Labhaya 

89    479 

114 

Mahadeva  Iyer  r.  Ramakrishna  Red- 

62 

Sundar  Singh  v.  Bhau  Singh 

90  1032 

diar 

92  653 

63 

Said  Nur  v.  Emperor 

89   718 

117 

Pasumarti  Scothanna  v.  Thammandra 

Yasikalappa                                    .  . 

91    765 

Madras  High  Court. 

118 

Narasiinha  Mudali  v.   Narayanasami 

Chetty 

92    333 

1 

Visvanatha  Mudali   T.   Doraiswami 

119 

Sriuirasa  Rao  v.  Kanaparthi    Ven- 

Mudali 

91     193 

katanarasainma 

91     727 

6     Valluru     Appalasuri      v.      Sasapu 

120 

Govindaawami  Pillai  v.  Doraiswami 

!      Kannamma  Nayuralu 

9O   881 

Mudali 

91    181 

12 

Vuppulury       Somasundaruui        r. 

122 

Prathipati  Suryanarayana  v.  Prathi- 

Bhimisetti  Kondayya 

91     443 

pati  Seshayya 

90   343 

18 

Veeraswami  Mudali  r.  Vonkatachala 

123 

Kallukutt  Parambath    Pcrachaii    v. 

Mudali 

92     20 

Putem  Pcctikakkal  Kuttiali         ... 

91    144 

20 

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

91    597 

125 

Secretary    of  State  v.  Srceramamur- 

29 

Ramaswami    Reddi  v.  Rajagopala- 

thi 

91    179 

chariar 

91    270 

126 

Khajamyan     Rowther     v.    Appavu 

Pillai 

9O   642 

•,',',   ,  ...  i  '• 

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


[1926 


128 
128 

130 
132 

133 
133 
135 

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

154 
154 
155 
156 
157 

159 
liO 

161 
162 


Madras  High  Court— contd. 

Radhakrishna    Aiyar  v.    Vinayaka- 

swamiar 
Alapati  Kamaswami  v.    Dusari  Ven- 

katanarayana 

Sivan  Pillai  v.  Venkatesvvara   Ayyar 
Gopalakrishna    Konar     v.   Vilanga 

Konar  .  . 

Muthu  Veerappa  Chettiar    v     Siva- 

gurunaiha  Pillai 
Kommareddi    Ramachandrayya     v. 

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

Vadamalai  Tnvanatha  Sundanidoss 

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

Firm 
Periakaruppa  Thevan  v.  A.  Kaniyol- 

aswamigal 
Karipinerii   Rajayya   v.   Kalapatpu 

Annapurnamma 
Marudayya  Thevar    r.   Shanmuga- 

sundara  Thevar 
Trustee  of  the  Vizianagaram  Estate 

v.  Paila  Achanah 
Nagala  Kotayya    v.    Koganti  Kot- 

appa 
Marath    Veetil    Kalliani    Amma   v. 

Cochin  Sircar 
Metta  Kama  Bhatlu  v.  Metta  Annayy; 

Bhatlu 
Naiwalt     Sulaiman   Ali    Khan    v. 

Venkatanaryana  Garu 
Munuswami  Nayakar  v.  Abdul  Azeea 

Sahib 
Tulasidass  Govindjee  v.    Madhava-s 

da§s 
Maharajah  of  Jeypore  v.  Sobha  Sun- 

dar  Dalai 
Official     Assignee    of    Madras    T. 

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

Nagarazu 
Krishna  Jute  &    Cotton  Mills    Co., 

Ltd.  v.  Municipal  Council,  Vizia- 

nagram 
Khazi  Muhammad  Khan,  In  rt 

Deraguptapu  Narasimham  v.  Deva- 

guptapu  Chendramma 
Chockalingam    Pillai    v.    Pichappa 

Chettiar 
Nallakakhan  Ambalam  v.  Kallalagai 

Devasthanam 
Vasireddi  Sree  Chandra  Monies wara 

Prasad    Bahadur     v.      Yadavalli 

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

yulu  Naidu 
Popakannu  Errappa  Reddi  v.  Ped- 

damuniswami  Setti 
Arumuga  Thambiran  v.  Namasivaya 

Pandara  Sannadhi 


91  08 

92  330 
92    556 

90  819 
92  C03 
92  800 

92   415 

90  721 

91  1027 

92  308 
91     702 
91     280 

90  551 

91  310 

90  605 

91  166 

91  724 

92  570 
91    576 

90  1054 

91  638 
91    608 

91  297 

Not 
reportabl* 

92  321 
92    599 

91  319 

92  402 
91    202 

90  1033 

91  264 
91    109 


Madras  High  Court—  concld. 

164     Govindaswami  Pillai  v.  Ramanathan 

Chettiar 
1C5     Ramaftwami  Chettiar  v.  Ramanathan 

Chettiar 
166     Sriranga  Narayana  Jeer    v.  Ahobila 

Jeer  : 

168     Vcerannan    Ambalam    v.    Ayyachi 

Ambalam 
173     Venkataranga  Aiyar  v.    Ramasamy 

Aiyar 
175.  Gandha  Korliah  v.  Janoo  Hassan    .. 

177  *  Vemulamanda    Bhadrayya  v.  Penu- 

metcha  Jaggaraju 

178  Sirma  Karuppan  v.    Muthiah    Chet- 

tiar ••; 

179  Subramanian  Chetty  v.   Ramaswami 

Chetty 
181     Kuppusvvami  Mudaliar    v.    Chocka- 

linga  Mudaliar 
183     Suggusetty  Subbayya  v.  Irngulapati 

Gangayya 

183  Pfiramasami  Rayudu,  In  re 

184  Thutta  Venkataswami  v.  Vissamsetti 

Kotilingam 

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

187  Alaga    Pillai    v.    Ramaswami  The- 

van 

189  Chandayya  Hegde   v.   Kaveri    Heg- 

dathi 

190  Mahalinga  Naicker  v.  Vcllaya  Naic- 

ker  a      ... 

191  I  Venkataratnamma    v.     Narasimha- 

charyulu 

Nagpur  Judicial  Commissioners 
Court. 

1     Sheosatyanarayanlal  v.  Emperor    . . 

5  Nagarmal  v.  Abdul  Rahman 

6  Jairarn  v.  Laxman 

9  Mahadeo  T.  Shioram 

10  Balwantrao  v.  Farid  Sahib 

10  Onkar  v.  Dhanaingh 

15  Ganpati  v.  Salu 

17  Nizamuddin  v  Jam  ma 

20  Mira  Moti  Ju  Deo  v.  Janki 

21  Premsukhdae  T.  Peerkhan 
25  Nathu  v.  Sheosa 

29  Ratanlal  v.  Govinda 

31  Lalchand  v.  Narhar 

31  Bhau  v.  Syed  Chand 

33  Jiajaram  v.  Ramchandra 

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

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

40  Dattu  v.  Bhaooaingh 

44  Bulakichand  v.  Amiralli 

48  Jirabai  v.  Ramdularibai 

49  Choturam  Bhikraj  v.  Narayan 

50  Anandrao  v.  President,     Municipal 

Committee,  Nagpur 

51  Mahamad      Niyajuddin      Khan 

Jethu 

52  Bisan  Singh  v.  Fatechand 

53  Ramprasad  v.  Emperor 


91  714 

91  537 

91  631 

92  968 

93  670 
91    780 

91  1017 

92  373 
91      11 

91  454 

92  687 
91    532 

91  1051 

92  1055 

91  1024 

92  390 
92   412 
92   470 


91    945 

89  941 
91    971 

90  51 

89  216 

90  963 
89   345 

693 
926 


88 
89 

95  979 

89  636 

90  349 
89  896 
87  921 
89  944 


90 
89 
88 
87 
89 


76 

782 

235 

12 

991 


90  210 

89  929 

87  623 
89  829 

88  178 


..  ,92]  CONSOLIDATED 

ALL  INDIA  REPORTER,  FOR 


TABLES. 

r,  1926— contd. 


Nagpur  Judicial  Commissioner'* 
Court    concld. 

f)udh  Chief  Court—  concld. 

49 

Hira  Lai  v.  Maagal  Dei 

88   511 

ft5 

Pfcttatraya  v.  Amr^t 

99    7£? 

49 

Tawai&ul  Kfcan  v.jjld.  Metdi  Ali 

57 

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

Khan 

90   37$ 

60 

Jaikisari 
Tnmbik  v.  Sitaram  Maharaj    gJans- 

99  *# 

53 

53 

Bhagan  v.  Sukhdeo  Singh 
Raza  Husain  Khan  v.  Subhani 

J69   660 
90   59$ 

'"'tjian                                            ,. 

89  1016 

55 

Ghuttur  Singh  v.  Phulang  Singh  .  . 

90  119 

61 

Shiosahai  Sonar  v.  Ramkrishna 

92     6& 

56 

Tirbha,wan    Dutt   Pande     v.     Ram 

62 

Govindrao  v.  Sarjabai 

89   872 

Piare 

88     65 

64 

Sarjabai  '  v.  Yadeosa 

dO     58 

57 

Emperor  v.  Md.Shafi 

9D  539 

65 

Udairam  v.  Thakur  Prasad 

89    933 

59 

Sitapat  Ram  v.  Mahabir  Prasad     .  . 

87   438 

66 

Secretary  and  President  Municipal 

59 

Bunyad  Singh  v.  Naubut  Singh    ... 

90   &1? 

67 

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

88   480 
89   446 

61 
P2 

Maharji  v.  Baghoman 
Baijnath  v.  Ramdas  Sahu 

89   476 
90   321 

68 

Jtanhairam  v.  Kalicharan 

91    2J8 

03 

Suktipat  Lai  v.  Emperor 

89   972 

71 

Ohunnilal  v,  Jtishandas  Ram  das    .. 

89   407 

64 

Santu  Chamar  v.  Arjun  Misra 

88   542 

73 

Fakira  Sambhaji  Kunbi  v.  Emperor 

87    918 

Jnder  Kuer  v.  Mohammad  Taqi 

9O   505 

75 

Shanker  Rao  v.  Raghunathrao        ... 

89    331 

68 

Agent,  Rohilkand-Kumon  Railway 

75 

Dulichand  v.  Sonai 

90    239 

v.  Gauri  Lai 

9O     46 

77 

Janki  Sethani    v.    Seth  Laxmi  Nar- 

68 

Har  Pershad  v.  Sheoshanker 

9O    679 

ayan 

89   129 

69 

Kalka  Singh  v.  Jagwant  Kunwar  ... 

89    722 

79 

Lai  Chand  v.  Emperor 

89   974 

72 

Kalka  Singh  v  Bishuaath  Singh  .  . 

89   221 

79 

Chimashani  v.  Venkatrao 

02   841 

74 

Abdul  Rahman  Khan  v.  Noor  Jahan 

ftCi    "Vift 

75 

Amna  Khatun  v.  Md.  Wali 

88   481 

Oudh  Chief  Court. 

76 

Ahmad  Hasan  v.  Kodi  Lai 

90   351 

77 

Abhaidat    Singh    v.  Ragho    Indar 

^ 

Mohammad  Jaimur  Khan  y.  Ragbu- 

Partab  Sahai 

91     976 

nath  Singh 

91  1015 

79 

Baboo  Lai  v.  Mirza  Md.  Askari 

89    57? 

2 

Achal  Singh  v.  Shagunath  Kuer  ... 

SO   4(70 

80 

Gajadhar  v.  Aulad  Husain 

9O   375 

12 

Rudra  Partab  Singh  v.  Suraj  Kuer 

I    617 

13 

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

9O   371 

Patna  High  Court. 

15 

Ambika  Prasad  r.  Athar  Ah 

89    182 

16 

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

1 

Baijnath   Rai    v.    Mangla    Prasad 

pany 

94   672 

Narayan  Sahi 

90    732 

17 

Jagan    Nath  Singh   v.  Jag  Jewan 

5 

Pershad  Tewari  v.  Emperor 

9O   661 

Das 

91      93 

9 

Tarnji  Singh  r.  Satnarain  Maharaj 

9O    895 

17 

Jagmohan  Singh    v.    Sheo  Manual 

14 

RamesJiwar      Singh       v.      Durga 

Singh 

90   332 

Mandar 

90   454 

18 

Sajjad  Husain  v.  Mul  Chand 

90    951 

10 

Aghori  Koeri  v.  Kishundeo.  Narayan 

19 

Ram  Hartikh  v  Salik  Ram 

69   332 

Mahta 

86   397 

20 

Sitla  Bux  Singh  v.  Ram  Newaz 

9O    741 

17 

Ramchandra  Singh  v.  Jang  Bahadur 

22 

AjLakhdum  Thater  v.  Emperor 

87   595 

Singh                                          »-. 

9O    55$ 

29 

Ramcharan  v.  Sartaji 

9O  766 

20 

Badri  Chaudhry  v.  Emperor 

92'   874 

34 

Jamna  Pershad  v.  Ramlal 

9O    327 

23 

Lekhraj  Mahton    v.   Jang  Bahadur 

§6 

Hasnu  Khanv.  Emperor 

89  241 

Singh 

89    822 

27 

Sheo  Darshan  v.  Emperor 

9O    159 

25 

Faujdar  Rai  v.  P'mperor 

9O    445 

.27. 

Sri  Ram  v.  Suraj  Bali 

88   507 

27 

Anant  Potdar  v.  Mangal  Potdar     ... 

91    483 

28 

Maqbul    Husain   v.   Estate  of  Ch. 

28 

Raj  Kishore  Lai  v.  Alam  Ara  Be- 

Shafiq-uz-zaman 

89   225 

gum 

9O     6? 

31 

Haidri  Khanam  v.  Ahmad  Ali 

9O   430 

29 

Ram  Charan  Singh  v.  Emperor     ... 

89   153 

32 

Zuhara  Begam  v.  Mashuq  Fatima... 

88    175 

29 

Shamsher  Narain  Singh    v.  Moham- 

33 

Bhagwati  Prashad  v.  Lall  Bahadur 

90   404 

mad  Sale 

9O   320 

34 

Chandra  Pal  Singh  v.  Bishan  Singh 

87  1053 

31 

Hari  Sankar  Rai  v.  Tapaikuer 

88   923 

35 

Gobind  Prasad  v.  Narbhir  Singh   ,., 

90   577 

""32 

Kishore  Ahir  v.  Emperor 

88   864 

36 

Chutkan  v.  Emperor 

90   444 

33 

Baijulal  Marwari  v.  Thakur  Prasad 

37 

Hari  Kishen  Dass  v.  Maiku  Lai  ... 

87   959 

Mar  war  i 

9O    262 

38 

Narain  Das  v,  Debi  Din  Singh 

90   566 

34 

Ram   Saran   Singh   r.   Mohammad 

39 

Swami  Dayal  v.  Maqsood  Husen    .  . 

88   141 

Jan  Khan 

89    706 

40 

Thakurian  v,  T?ota  Ram 

To  be 

36 

Barhamdeo  Rai  v.  Emperor 

9O  439 

printed. 

37 

Jagdip  Singh  v.  Harku  Singh 

89    863 

tt 

La%hhm*aD*»Vv  tfhagiratb 

9O   487 

40 

Radhe  Lai  v.  East  Indian  Railway  ... 

9O   680 

43 

Harkiaiban  D^vu  Sundro  Bibi 

89  424 

42 

Bibi  Wajibunnissa  Begum  v.  Babu 

44 

Secretary    of   State     for  India   v. 

Lai  Mahton 

SO   871 

Bishan  Narain  Bhargava 

90   524 

47 

Rameswar  Narayan  Singh  v.  Mahabir 

45 

Sker  Khan  v.  Misri  Lai 

89    107 

Prasad 

90   325 

46 

Ram  Prasad  v.  Paul  Brothers 

9O   381 

49 

Ganesh  Lall  v.  Biseear  Pacdey     .  . 

88    820 

XVI 


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


[1926 


53 
54 

r.5 

f>7 

58 
61 
€2 
61 
€7 
€8 
70 
71 

73 
76 
77 

80 


1 
2 
3 

4 

7 

9 
10 

IS 
14 

17 


Patna  High  Co urt— concld. 

Harbans  Narain  Singh  v.  Mohammad 

Sayeed 

Gokul  TatAva  v.  Emperor 
Keshub  Prasad  Singh    v.  Harihar 

Prasad  Singh 
Asharfi  Dhimar  v.  Muhammad  Din- 

dalal 

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

Singh 

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

Shah 
Prasanna  Kumar  Banerji  v.  Kalyan 

CharanMandal 

Rangoon  High  Court. 

Ma  Than  r.  Mg.  Ba  Gyaw 

Maung  Po  Toke  v.  Maung  Po  Qyi 

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

Maung  Shwe  Ye  v.  Maung  Po  Mya . . 

Maung  Kyi  Oh  v.  Maung  Kyaw 
Zan 

Kalenther  Ammal  T.  Ma  Mi 

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

Emperor  r.  Mg,  San  Nyein  , . 

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

Halima  Bee  Bee  r.  Khairunnissa 
Bee  Bee 


9O    293 

89  1030 

99   703 

88  OSO 

90  158 
891013 
9O   27S 

89  902 

90  489 
89    151 

89  1020 

90  ICO 

89  802 
92    179 

90  757 

90    785 
90   352 


93  124 

92  112 

91  623 

91  684 

93  110 

92  125 

91  663 

93  79 

92  ^ 

91  644 


J 


19 
23 
25 

31 


9 
15 

17 

18 

19 
20 

22 
26 

27 
31 
34 
35 
37 
40 

42 

48 


Rangoon  High  Court — concld. 

Ma  Pan  v.  Maung  Ne  U     ' 

Maung  Po  San  v.  Maung  Po  Thet    . . . 

Municipal  Corporation  of  Rangoon 

v.  M.  A.  Shakur 
Punushwami  v.  Veeramuthu 

Find  Judicial   Commissioner's 
Court. 

Emptror  v.  Nabu 

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

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

of  State 
Pevandbai    v.    Thaoomal     Panjoo- 

mal 

Pursu  v.  Emperor 
Moolchand  Kishindas  v.  Thakuribai 

Assanmal  Chatumal  v.  Dilbar 
Tulsidas    Keshowdaa   v.      Ramzan 

Abdulla 

Naraindas  v.  Khatamnal 
Khimanmal  Tejumal    v.  Lalchand 

Ghanomal 
Mulchand    Sobhraj  v.    Radhakishin 

Parumal 

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

hmichand 
Khuahiram    Tejbhandas    v.  Jhali- 

bai 
Jan    Muhomed    v.    Ghulain  Rasul 

Khan 
Firm  of  Madhowji  Thawor   v.   Yar 

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


91  63d 

91  653 

91  550 

91  67<J 


90  434 
93  214 
89  335 
92  394 

88  878 

91  145 

88  741 

89  259 

To  be 
pointed. 
89    159 

89    238 
83    916 

89  609 

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

88  S80 

89  164 
89   451 


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

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


Names  of  coses  reported. 


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

Abdul  Majid  v.  Wahiduliah  .  . 

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

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

Ah  Khauug  v.  Emperor 

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

Ahmun  Zaida  v.  Gurdas  Ram 

Aishau  v.  Municipal  Committee,  Lahore 

A  jo  Mian  v.  Emperor 

Akabaiv.  Narayan 
Akbar  Ali  v.  Emperor 


Akella    Rainasomayyagulu 
Godavari 


v.      Official     Receiver, 


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

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

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

Anandrao  y,  paulat 

Appajee  Pillai  v.  Manika  Mudali 

Arshed  Ali  v.  Emperor 

Arshad  Ali  v.  Zorawar  Singh 

Arunchellam  Chettiar  v,  U.  Po  Lu  ... 

Asa  Nand  v.  Mahmud 

Asanalli  Nagoor  v.  Mahadu  Meera  . . 

Aswap  Ali  Bepari-v.  Duia  Mia 

Ata  Husain  v.  Mustafa  Husain 

Atma  Ram  v.  Nanak  Chand 

Attar  Singh  v.  Kirpa  Singh 

Ayiawaryanandaji  Saheb  v.  Siwaji  Raja  Saheb 


Where  reported. 


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

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

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

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

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

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

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

Cr.  L.J.  336  " 

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

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

A.I.  R.  1926  Nag.  251 

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

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

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

23  L.  W.  413;  27  Cr.  L  J.   361;  A.  L  R.V1926 
Mad.  430 

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

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

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

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

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

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

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

8L.  L.  J.  60 

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

318 

7 L.  L.J  542 

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

116 


Page. 


887 

441 

496 
1G3 
761) 
791 
620 
905 
145 
601 
672 


973 

752 

23 

630 

526 

863 
36 

213 


249 
1021 


873 
330 


626 
330 
309 


216 

909 

30 


241 
491 
843 
54ti 
571 
297 

028 


INttfAfr  OASES. 


[1926 


Ayyaru  Pillai  v.  Varadarnja  Pillai 
Babu  v.  Emperor 

Bachan  v.  Raghuuath          .  .  • 

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

Dago  v.  Roshan  Beg 
Bahadura  v.  Kmpcror 

Baijnatli  Singh  v.  Hari  Prasad  Bal 

Buikuntha  Nath-De  v.  Shaik  Hari 

Baikuntha  Nath  Knr  v.  Adhar  Chandra  Pain 

Bajirao  v.  Dadibai 

Bajrang  Bali  y.  Mahrajia 

Balaram  Manjhj  v.  Jagaimath  Man j hi 

Baldeo  Kurmi  v.  Kanhi  Chamnr 

Baldeo  Singh  v.  Gi.lab 

iialsiiet  Mahadshet  Yckawdc  v.  Hari  Baburao  Rane. . 

Bangflhi  Badan  llaldar  v.  Katan 

Banjoisi  Narasamma  v.  Banjoisi  Sarasamman 

Bantu  v.  Lehnu  Das 
Ban  war!  Lai  v  Jhimka 

Bonu  Mai  v.  Paras  Ram  *. 

Barati  v.  Surit 

Bar$Rtv.  Kolu  Mai 

Barkat  Bibi  v.  Abdul  Aziz 

liarkoo  v.  Atmaram 

Basant  Rai  Bhandari  v.  Salik  Ram  .  . 

Bashir  Ahmad  v.  Zobaida  Khatun 

Basliirulla  Bhuiya  v.  Meajan 

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

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

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

Bhagwandas- Paras  Ram  v.  Jado  Nath  ». 

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

Bhola  v.  Emperor 

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

Bibi  KhodaijatuT  Kabra  v.  Harihar  Missir 

Bishen  Singh  v.  Wasawa  Singh  ... 

Bohisetti  Mamayya  v.  Official  Receiver,  Guntur 

Bombay  Baroda  &   Central  India   Ry.   v.  Gulabbhai 

Bhagwandas 
Bulli  Malv.  Jhabba 

Buta  v.  Ghul am  Muhammad  r-     ,  .. 

Cecil  Cole  v.  Nanalal  Moraji  Dave 

Cha_mari  Singh  v,  Public  Prosecutor,  Gaya 


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

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

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

J.  362                                                                 •  874 

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

Pat.  137                                                            ...  350 

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

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

T.  353                                                              ..  326 

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

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

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

*0udh  Chief  Court                                           ...  £32 

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

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

|  *0udh  Chief  Court                                           ..  237 

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

i  *Calcutta  High  Court                                       . .  961 

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

1926  Mad.  £53                                                    . .  61 

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

All.  229                                                              ...  454 

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

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

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

T    393  177 

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

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

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

Cal.  550                       ..  174 

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

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

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

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

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

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

•Madras  High  Court                 ...  1047 

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

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

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

209  . .  900 

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

Mad.  338                     ...  720 

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

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

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

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

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


.  921 


INDIAN  CASE& 


Champa  Devi  v.  Pirbhu  Lai 

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

Cii'Liidni1  ••!.•;. i  Bui  v.  Bakaram 
Cliandrabhan  Prakaslmnth  v.  E  T.  liy.  Co. 
Chandrika  Prasad  v.  Nazir  Husain 
Oliaudulnl  Maganlal  v.  Motiial  iianlal 
Chst  Ham  v.  llaioho 
Clihidda  v.  Emperor 

Chimashani  v.  Veukalrao 

China  v.  To  Thoe  Seng 

ChintLilapati     Butchi    Seela^ya    Cam    v,     Gollavilli 

Appadu 

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

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

Commissioner  of  Income  Tax  v.  Luoknow  Ice  Asso- 
ciation 

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

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

D.  R.  K.  Saklat  v.  Bella  » 


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

Deo  Kali  v.  Ranchoor  Bux 

Devji  Padamsey  v.  Thommadra  Erikalappa 

Dhana  Mohammad  v.  Nastulia  Molla  ..« 

Dlianpat  Rai  v.  Kahan  Singh 

Dkanrajgirji  Narasinggirji  v.  Tata  Sons  Ltd, 

Digambar,  In  re 

Din  Mohammad  v.  Matab  Bibi 

Dittu  Ram  v.  Nawab 

Diwaii  Chand  v.  Emperor 

Doras wami  Nadar  v.  Joseph  L.  Mother 

Dost  Muhammad  v,  Kadar  Batcha 

Duma  Tom  a  Rumav  v.  Nathu  Farsha  Kurel  .  . 

Durga  Bai,  hi  the  matter  of 

Durga  Prosad  Lahiri  Choudhuri  v.  Raton  Mahommed 

Sarkar 

Dwarka  v.  Emperor 

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

• v.  Gulab 

— — —  v.  Kesar 


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

AIL  287 

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

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

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

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

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

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

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

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

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

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

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

A.  I.  R.  1026  Oudh  191 

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


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

338  - 

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

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

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

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

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

2  L.  C  107  ..- 

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

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

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

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

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

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

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

"Calcutta  High  Court  ... 

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

•Allahabad  High  Court  •• 

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

L.  J.  302  ... 

27  Cr.  L.J.  300  ... 

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

All.  226  .. 


429 
7fr'G 

390 
402 
732 
616 


402 
"35 
022 
G81 


463 
841 
233 

814 
7J6 
991 

573 

599 
068 


517 
943 


200 
3:.2 


10 
5c5 

948 
479 


272 

749 

119 

950 

16 


855 

U-07 

743 

590 

588 


N  CASfeB. 


Emperor  v.  Manant  K.  Mehta 

v.  Mathro 

v.  Maung  Than  Gyaung 

—   v.  Nga  Tun  Maung 

v.  Tej  Ram 

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

Khan 


Firm  of   Ram   Prosad-Ram  Kissen  v.  Haro  Kumar 


Chin- 


Ful  ihand  Mohanlal  v.  Harilal  Nansa 

(jaja  la  \  Kara}  an  Patkar  v.  Jivangiri  Chamelgiri 
<  janga  H  -.!•  ':-::  S!  :^1:  v.  Mania  Bux  iSingh 
Oangal1  s  .  !'•'  •„  N  .::;  v.  B.  B.  &  C.  1.  Hy. 
(jlanpat  Rai  v.  Kani  Ram-Muuna  Lai 
Gaur.i  Telin  v.  Shriram  Bhoyer 
Gam  i  Shankar  v.  Bhairon  Pershad 
Gauri  Shankar  v.  Decruzo 
Ghissu  v.  Amir  Ali  Khan 
Gobind  Lai  Dutt  v.  Official  Assignee,  Calcutta 
Gokul  Das  v.  Nathu 

Gonnabathula    Thammayya    v.  Gonnabathula 
nay  y  a 

Gopal  v.  Collector  of  Aligarh 

Gopal  v.  Krislmarao 

Gopal  Chandra  Banerjee  v,  Bhutnath  Sasmal 

Gopnl  Chandra  Das  v.  Satya  Bhanu  Goehal 

Gopilal  Bhawaniram  v.  Pandurang 

Govinda  Nadan  v,  Rumasami  Chcttiar 


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

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

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

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

Hussain  Bakhsh  v.  Sarbuland  ,  . 

Ibrahim  y.  Shah  Mahomed 
Imam  Ali  v,  Emperor 

Imam  Satyanarayana  v,  Devarakonda  Satyanarayana 
Murte  «. 


v.  Debi 
laciar  bingh  v.  Emperor 


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

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

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

Cr.  L.  J   337                                                  •  •  849 

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

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

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

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

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

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

B. 121                                                             ..   ;  549 

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

13  O.  L  J.  132                                                 ..  612 

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

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

A.  L  R.  1926  Nag.  265                                    . .  ,  C£6 

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

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

*Allahabad  High  Court                                     ..  555 

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

24  A  L.J.  291                                                  ,.,  492 

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

"Allahabad  High  Court  ..  ,  134 

*Nagpur  Judicial  Commissioner's  Court  .  •  678 

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

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

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

L.  W.  573  ..  106 

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

B.  84                                                                ..  548 

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

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

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

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

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

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

J.  233                       .  217 

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

"•Lahore  High  Court                ...  273 

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

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

14                         ..  268 

*Lahore  High  Court                ,.  263 

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

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

1926  Mad.  428  ..  86 

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

All  302                                                      ...  585 


VoL92j 


INDIAN  OASES. 


Indarpal  Singh  v.  Kalloo 

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

Ishar  Das-Dharam  Chand,  In  the  matter  of 

Ish war  Das  v.  Emperor 

Isram  v.  Qangia 

Iswor  Sant  v.  Torendra  Nath  Kuila 

Jagrup  Singh  v.  Indrasan  Pande 

Janangir  y.  Ham  Harakh  „ 

Jai  Narain  v.  Jafar  Beg 

Jalaluddin  r.  Emperor 

Jam  shed  ji   Naoroji   Gamadia  r.    Maganlal  Bankeylal 

<fe  Co. 

Jang  Bahadur  v.  Jagat  Narain  . , 

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

Jeomal  v.  Emperor 

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

Jitendra  Nath  Chatterjee  v.  Jasoda  Sahun 

Jiwa  Ram  v.  Jhanda  Sin^h 

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

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

Kadhori  v.  Emperor 

KalaGellav.  Shivji 

Kala  Khan  v  Natlm  Khan 

Kalap  Nath  v.  Emperor 

Kalenther  Ammal  v.  Ma  Mi 

Kaliani  Anni  v.  Thirumaiayappa  Mudaliar 

Kaliappa  Goundan  v.  Maniam  Sellappa  Goundnn    .. 

Kaliba  Sahib  v.  Subbaraya  Ayyar 

Kalka  Prasad  v  Panna 
KaUiiickai  v.  Palani  Koundan 

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

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

Kannuri  Venkata  Siva  Rao  v.  Chittoori  Rama  Krish- 
nayya 

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

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

Kehri  Singh  v.  Thirpal 

Keramat  Mandal  v.  Emperor 

Kcramat  Mandal  v.  Emperor 

Keaaralu  Naicker  v,  Corporation  of  Madras 


*0udh  Chief  Court 

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

306 

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

All.  271 

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

A.  I.  R.  1926  Oudh  318 

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

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

359 

27  Or.  L  J.  326 

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

T.  299 
1  L.  C.  43 

A.  I.  R.  1026  Sind  130 

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

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

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

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

Ail.  288 

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

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

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

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

245;  A.  1  H.  l9-'6  Mad.  41* 
27  Cr.  L.  J.  *5-»;  A  1.  R.  1926  Lah.  240 
A.  1.  R.  1926  Oudh  301 
A.  I.  K.  1926  Mad.  39ft 
50  M.  L.  J.  44;  V192«)  M.  W.  N.  14G;  27  Cr.  L. 

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

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

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

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

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

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

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

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

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

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

Cat  3.'0 

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


670 

1008 
249 
856 
295 
U81 
I 
263 

101? 

857 

9 

906 
1031 

871 
742 
371 

617 
346 


354 
214 

459 
491 

uuo 

501 
125 
355 

750 

621 
3 

523 
42H 

787 
loO 

862 
82 
80 

695 


7CO 

403 

$59 

34 


568 
282 
453 
439 
1053 


INDIAN  CASES. 


[1926 


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

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


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

Komminoni  Appalaswamy    v.  Kommineni   Simhadri 

Appadu 

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

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

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

Lallu  Singh  v.  Our  Xarnin 

Lalman  v.  Shiam  Singh 

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

das 
Laurentius  Ekka  v   DhukiKoeii 

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


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

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

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

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

Maharaj  Din  v.  Bhairon 


of 


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

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

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

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

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

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

Cal.  139;  53  C.  372                 ..  442 

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

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

23  L.  W.  212                                                   ...  724 

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

1926  Mad.  133                                                 .  .  800 

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

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

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

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

Lah  143                                                          ...  222 

"Lahore  High  Court                                          . .  949 

•Lahore  High  Court                                         ...  762 

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

7,  J.  382                                                        ..  8P4 

•Allahabad  High  Court                                  ...  768 

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

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

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

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

B.  32                                                                ...  367 

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

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

159                                                                   ..  368 

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

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

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

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

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

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

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

Mod  ICO                        ..  412 

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

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

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

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


Vol.  02J 


INDIAN  CA8B8, 


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

Manayikrnma  Zamorin  Raja  of  Calicut  Y.  Venkata- 

giri  Pattar 
Man^palli  Satanarayanamurthi  v.  Thommandra  Eri- 

kalappa 

Mansaram  y.  Hudhu 

Maqsud  Ali  v,  Abdullah 

Marotrao  v.  Municipal  Committee,  Nagpur 

Masala  v.  Emperor 

Mattapalli  Venkataratnam  v.  Veppu  Sitaramayya    ... 

Mating  Ba  Thein  v.  Ma  Than  Myint 

Maung  Han  v.  Ko  Oh 

Maung  Mya  Din  v.  Maung  Ye  Gyi 

Maung  Po  Seik  v.  U  Nandiya 

Maung  Po  Toke  v.  Mauns:  Po  Gyi 

M-iun^  San  Pwe  v.  Hamaclanee 

Maung  Sein  Htin  v.  Chee  Pan  Ngaw 

Maung  Set  Kliaing  v.  Maung  Tun  Myein 

Maung  Than  v.  Zainai  Bibi 
Maung  Tun  v.  Emperor 

Mayappa  Chettiar  v.  Kolandaivelu  Chettiar 
McDonnell  v.  Emperor 

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

Mohammadi  Begnm  v.  Tufail  Hasan 

Mohan  Singh  v.  Nathu  Mai 

Momoon  v.  Ibrahim 

Mo)lji  Murarji  Sunderji  v.  Pinto 

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

Musch.ees-ud-din  v.  Emperor 

Muhunmad  v.  Muhammad  Ali  .  , 

Mahammad    Abdul    Gaffur  v.    Muhammad  Samaud- 

dia 

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

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

Mulraj  v,  1  ndar  Singh 

Mulugu   Chcngayya  v.  Aruvelu  Devasanambagaru... 

Mumtaz  Ali  v.  Allah  Banda 

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

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


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

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

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

190  ..  700 

23  L.  W.  58  . .  24$ 

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

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

A.  I.  R.  1926  Nag.  289  „  708 

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

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

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

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

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

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

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

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

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

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

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

«2  ...  512 

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

Cr.  L.  J.318  ..  I    702 

"Madras  High   Court  ...  |     715 

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

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

(19'J6)  M.  W.  N.  4  ...  838 

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

L.  J.  240  ...  224 

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

17  ...  260 

*Lahore  High  Court  . .  299 

A.  I.  R.  l»2o  Sind  143;  27  Cr.  L.  J.  248  ..  424 

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

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

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

A.I.  R.  1»26  Lah    2-13  ..  289 

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

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

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

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

All.  277  .  863 

A.  I.  R.  1926  All.  102;  48  A.  150  ..  4/1 
50  M.  L.  J.  145;  23  L.  VV.  390;  V1926;  M.  W.  N 

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

*Allahabad  High  Court  ..  600 

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

"Lahore  High  Court  ..  765 

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

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

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

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

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

"Lahore  High  Court  .  278 

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


INDIAN  OASES, 


[1926 


MuBtaqimuddin  v.  Emperor 

Muthu    Veerappa  Chettiar    v,  U,  K.    Sivagurunntha 
Pillai 

Muthuvenkatarama  Reddiar  v,  Official  Receiver,  South 
Arcot 

Nachiappa  Chettiar  v.  Mahomed  Sabir  Khan  ,,. 

Kuer  v.  Sham  Lai  Sahu 


Nanak  Chand  v.  Ram  Prasad 

Nand  Ram  v.  Ishar 

Narain  Das  v.  Emperor 

Karain  Das  v.  Saraj  Din  •« 

Naraaimha  Mudali  v.  Potti  Narayanasami  Chetty    • , 

Narasimham  v.  Chendramma 

Narnyan  v.  Dhudabai 

Narayanaswami  lyengar  v.  Thippayya 

Narayanaswami  Pillai  v.  Gopalakrislma  Naidu 

Natha  Singh  v.  Sunder  Singh 

National  Bank  of  India  v.  Lakbpat  Hai  *. 

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

Nazar  Shah  v.  Emperor 

Nee-lam  Venkotaratanamma  v.  Vinjamoori  Varaha 

Nga  Wa  Gyi  v.  Emperor  •+ 

Nidavolu  Atchutam  v.  Ratnaji 

Nihal  Singh  v,   Secretary,  Gurdawara  Guru   Tegh 

Bahadur 

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

Pakkir  Mahamud  v.  Pichai  The  van 

Pal  Singh  v  Ganga  Singh 

Palaniappa  Chettiar  v.  Rajarajeswara  Sethupathi 

Pali  v.  Eniperor 

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

Parbodh  Singh  v.  Bodh  Raj 
Parineahar  Lall  v.  Emperor 

Partap  Singh  v,  Emperor  •  • 

Parumal  Thawerdas  v.  Makhan 

Parvatibai    Trimbakrao    v.     Vishvanath    Khanderao 

Raste 
Pattainayya  v.  Pattayya 

Pazhaniandy  Tarakan  v.  Murukappa  Tarakan 

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


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

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

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

350  * 

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

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

P,0, 

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

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

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

Mad.  154 

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

Mad  366 

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

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

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

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

27  Cr,  L  J.  334 

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

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

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

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

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

i  A.  I.  R,  1926  Lah.  230 

!  A.  I.  R.  1926  Sind  HO 

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

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

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

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

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

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

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

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

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

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

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

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

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

A.  I.  R.  1926  Mad.  509 


C03 


398 
370 


274 
316 
597 
741 

960 

333 

321 

663 

847 

483 

258 

144 

94 

63 
7oO 

470 
430 
977 

731 

364 

759 

5 

497 

465 

42 

366* 

175 

558 

47 

40 

744 
195 

S85 
167 
575 

4 

782 


U 
526 


Vol.  92] 


INDIAN  CASES. 


Peyy^ty  Gopalam  Gam  v,  Adusumilly  Gopalakrish- 

nayya 

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

Port  Canning  and  Land  Improvement  Co.  v.  Heirs  oi 

Bahir  Molla 

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

lyengar 
Punjab  Commercial  Syndicate  v,  Punjab  Co-operative 

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

Racharla  Narayanappa  v.  Kondigi  Bheemappa 

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

Radha  Kishun  v.  Kashi  Nath 

Raghubir  Singh  v.  Nathu  Mai 

Haghunath  Das-Rani    Sarup    v.    Sulzer  Bruderer    & 

Co. 
Rahimbeg  v.  Emperor 

Raisun  Nisa  v.  Zorawar  Sah 

Rajeawari  Muthuramailinga  v.  Secretary'  of  State  for 

India 

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

Ram  Karon  v.  Emperor 

Ram  Kuer  v.  Govind  Iv£in  M, 

Ram  Kumar  Das  v.  Haxfnarain  Dns 

Ram  Labhaya  v  Kartatt  ftingh' 

Ram  Nath  Singh  v.  Gajadhar  Lai 

Ram  Newaz  v.  Nankoo  ."*  .  , 

Ram  Pher  Singh  v  Sheo  Sa ran  Singh 

Ram  Protap  Chamria  v.  Durga  Prosad  Chamria 


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

Ram  Shankar  Singh  v.  Lai  Bahadur  Singh 

Rama  Rao  v.  Rangaswamy  Rao 
Ramakka  v.  Negasam 

Ramasami  Goundan  v.  Alagia  Singaperumal  Kadavul 

Ramaswami  Aiyangar  v.  T.  Raghava  Aiyangar 

Ramchandra  v.  Lakshman 

Ramdhani  Muchi  v  Khakshardas  Tati 

Rampal  Singh  v.  Raj  rang  Singh 

Ramu  Chetty  v.  Pancharamal 

Ranzor  Singh  v.  Secretary  of  State  for  India 

Ratan  Mani  v.  Hans  Ram 

Rathan  Singh  v.  Commissioner  of  Income  Tax,  Madras 

Ratilalv.  Rughnath  Mulji 


*Madras  High  Court 

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

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

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

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

A.  I.  R.  J920  Wad  591 

7  L.  L   J.  230 

A.  I.  R.  19-0  Oudh  293 

23  L.  W,  520 

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

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

*  Lahore  High  Court 

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

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

Ondh613 

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

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

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

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

•     L.  J.  217  ^ 

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

Oudh  228 

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

"Allahabad  High  Court 

A.  L  R.  1926  Lah.  240 

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

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

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

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

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

L.  J.  2J6 

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

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

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

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

Mad.  462 
*Sind  Judicial  Commissioner's  Court 


416 
417 
206 

1055 

37 
730 
163 
764 

£90 

322 
695 
9U1 
425 

559 
541 
705 
510 
1013 

712 
169 
675 

311 

1030 

813 

882 

170 

577 
414 
104 
261 

478 
401 

757 


633 
567 

426 

637 

98 

792 

823 
1046 

603 
1031 

126 
1028 

319 

450 

1051 

378 


10 


INDIAN  OASES. 


[WB 


Relu  Mai  v.  Ahmad 

Rishi  Kesh  Law  v.  Sons    arid   Heirs  of   Shamsher 

Khan 

Roshan  Lai  v.  Rustomji  '  ,., 

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

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

Chand 

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

Sant  Sahai  v.  Chhutai  Kurrni 

Sarda  Bux  Singh  v  Kandhia  Bux 

Sartaj  Koer  v.  Mahadeo  Bux 

Sasi  Bhusnn  Malliek  v  Sedananda  Mallick 

Satheppa  Chettiar  v  Muthusami  Pillai 

Savarese   v   Wakf  Estate  of  Ismail  Ahmad  Mada 

Seetharamma  Naidu  v.  Govindasauii  Chettiar 

Sekkhu  Mustabu  v.  Nani 

Shafi  Ahmud-Nabi  Ahmad  v.  Krnperor 


Shaikh  Karim  v.  Emperor 

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

Shankar  v.  Pandurang 

Shankar  Bakhsh  v.  Taluqdei 

Sheikh  Badel  y.  Abdul  Rahim 

Sheo  Charan  Singh  v.  Kishno  Kuer 

Shoo  Nandan  v.  Hira  Lai 

Sheosahai  v  Ramkrishna 

Shib  Narain  v.  Gajadhar 

Sliidraj  Bhojraj  Desai  v.  Renaki  Konda  Mahar 

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

Shri    Goverdhanlalji      Alaliarnj      v.      Shri     Chandra- 

prabhavati 
Shunkar  v.  Mahadei 
Siban  Kai  v.  Bhagwat  Das 

Sidik  v.  Emperor 

Singh  Ram  v.  Kala 

Sinn  a  Karuppan  v.  Muthiah  Chettiar  .  . 

Sinnanna  Kone  v.  Muthupalaiii  Chetti 

Sita  Ram  v  Nanak  Chand 

Sital  Prnsad  Singh  v.  Jagdeo  Singh 

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


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


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

"Calcutta  High  Court,  48 

A.I.  R.  1»«6  Lah.  249                                       ..  669 

A,  I  R  192GOudh309                                       ...  903 

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

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

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

*Sind  Judicial  Commissioner's  Court                .  374 

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

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

*Patna  High  Court                                            ...  1.33 

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

1926  Mad.  72                                                  . .  504 

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

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

1926  Mad.  352                   . .  976 

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

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

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

9  N.  L.  J.  22  646 

30.  W.  N.  375                     '"  722 

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

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

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

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

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

13  0  L.  J  241  ..  46 
6  P.  L.  T.  K33;  27  Cr.  L.  J.  2^5;  5  Pat.  25* 

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

27  Cr.  L.  J.  332  ..  748 

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

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

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

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

415  ..  474 

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

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

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

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

310  P.  C.                       ...  2*9 

*Allahabad  High  Court  353 

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

Mad.  65                      ...  566 


Vol.  92] 


INDIAN  OASES 


11 


Subramaniam  Patter  v.  Velu  Nair 

Buggusetty  Subbayya  v.  Irugulapati  Qangayya 
Sukhdeo  v.  Ram  Dulari 

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

Surendra  Nath  Das  Gupta  v.  Satyendra  Nath 
Suryabhan  v  Renuka 

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

Teja  Singh  v.  Emperor 

Tliakar  Singh  v.  Indar  Singh 

Thaknr  Singh  v.   Sonkuar 

Thamaya  Bangarurtwami  v.  Thirunatliasundra  Doss  .. 

Thanappa  Chetty  v.  Esuf  Khan  Sahib 

Tharamal  Parkara  Kalpathoor  v.  Uruppoyil  Ambu     .. 

Thirumalachaviar  v.   Athimoola  Karayalore 

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

Tikaram  v.  Narayan 

Tiruvangalath  Nellyoton  Paidal  Nayar,  In  re 

Trustees,    Parakkat    Devaswom    v.     Venkatachalam 
Vadhayar 

Tukaram  v.  Chintaram. 
Tulsi  v.  Emperor 

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

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

Vrtdapalli  Varadacharyulu  v.  Khandavilli  Xarasimha- 
charyulu 

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


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

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

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


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

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

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

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

A.  I.  R.   1920  Cal  437  .. 

"Calcutta  High  Court  .. 

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

"Calcutta  High  Court  ... 

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

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

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

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

Pat  180  ... 

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

"Lahore  High  Court  . 

"Xagpur  Judicial  Commissioner's  Court         .  . 

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

23  L  W.  406  .. 

23  L.  W.  36 

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

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

A  I.  R.  1926  Mad.  510 

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

Mad.  218  .. 

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

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

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

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

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

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

Mad    118  '  .. 

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

C  297  .. 

"Lahore  High   Court  .. 

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

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

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

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

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

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

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

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

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

A.  I.  R    1925  Mad   1201  .  . 

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

"Madms  Hijjh  Court  ... 

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


C87 
F25 
,"92 
396 

223 

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


184 
461 
721 
824 

415 
753 

109 

776 
520 

456 
44 

624 


709 
327 

215 
570 

984 
839 
524 

172 

61o 

855 


85 
143 

968 
300 

20 
819 

827 


INDIAN  OASIfflS. 


[1926 


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

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

Venku  Shettithi  v.  Ramachandrayya 

Venugopal  Nayudu,  In  re 

Vepuri  Subbayya  v,  Secretary  of  State  for  India       . . 

Vinayak  v.  Kaniram 

Virappa  Govindappa  Konraddi  v.  Basappa   Virbhad- 

rappa 
Vishvanath  Shamba  Naik  v.  Kamkrishna    Martoba 

Kasbekar 

Vishvanathbhat  Annabhat  v  Mallappa  Ningappa 

Vishwanath  Prasad  v.  Emperor 
Vithoba  v.  Sadasheo 

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

Washilian  v,  Mir  Nawab  AH 

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

Yado  v.  Ambashankar 

Yasin  Bibi  v,  Munwar  Hussain 

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


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

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

Mad.  325  . .  802 

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

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

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

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

*Madraa  High  Court  . .  78 

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

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

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

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

Bom,  514                    ...  623 

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

A,  I,  R.  1926  Nag.  253    •  58 

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

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

«l  ..'  133 

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

I-J.237  ..  433 

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

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

'Sind  Judicial  Commissioner's  Court  387 

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


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

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


Page 


Names  of  cases  reported. 


Jagrup  Si  ugh  v.  Indrasan  Pande 

Sheo  Charan  Singh  v.  Kishno  Kuer  .  . 

3  Kalka  Prasad  v.  Panna 

4  j  Parvatibai  Trimbakrao    v    Vishvanath     Khanderao 
j      lluste 

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

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

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

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

20     Ve'iras  \vami  Mudali  v    Youkatachnla   Mudaii 

23     S.tnt  Sahai  v.  Chhutai  Kr.rnii 

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

29  Sitapat  Ram  v.  Mohammad  Asghar 

30  i  Appajee  Pillai  v.  Manika  Mudali  .- 

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

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

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

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

41  ,  Tikaram  y.  Narayan 

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

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

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

I      Khan  ...  I 

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

58  '  Vithoba  v.  Sadasheo 

61  Banjoisi  Nanisamma  v,  BanjoisiSarasammari 

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

71     Zukoobai  v.  Bhalsingh  ••  j 

75     Yado  v.  Amba  Shankar  ...  j 

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

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

85     Vaithialinga  Mudalliar  r.  Srirangath  Anni 


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


"Where  reported. 


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

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

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

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

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

A  1.  R.  I(.i260iidh207 

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

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

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

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

A.  1.  R.  1926  Nag.  262. 

A.  I.  R    1926  Oudh  193. 

21  L.  \V.  652. 

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

L.  W.  75  P.  C.  '  ' 

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

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

A.I.  R.  1926  Nag.  257. 

2  L.  C.  194. 

A.  I  R.  1926  Nag.  246. 

2  L.  C.  166. 

130.  L  J.211. 

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

*  Calcutta  High  Court 

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

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

A.  I.  R.  1926  Nag.  61. 

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

803. 

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

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

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

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

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

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

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

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


CASES. 


[1920 


91 
10J 

KI: 

104 
106 

107 
109 

110 

112 
118 
119 
121 
124 

125 
126 
131 
133 

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

170 
172 

174 

175 
177 

178 
179 
183 
184 


191 

195 
196 
198 

200 


206 
208 
209 
212 


213 


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

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

Laxman  Bhikaji  v.  Secretary  of  State  for  India 

Khoday  Gangadhar  Sah  v.  Swaminadha  Mudaliar  .. 

Suryabhan  v.  Renuka 

Doraswami  Nadar  v.  Joseph  L.  Mother 

Kesheo  v.  Jagannath 

Pazhaniandy  Tarakan  v.  Murukappa  Tanikun 

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

Sahai  Mistri  v.  Satali  Dnrji 

Gopal  v.  Collector  of  Aligarh 

Murli  Das  v.  Achut  Das 

Muhammad  Abdul  Gaffur  v.  Muhammad  Sanisuddin 

Maung  Po  Toke  v.  Maung  Po  Gvi 

Vallabhdas  Tulsidas  v.  Nagurdsis  Juthabhai 

National  Bank  of  India  v.  Lakhpat  Rai 

Abdullah  v.  Emperor 

Vishwanath  Prasad  v.  Emperor 

Abdul  Qadir  v.  Emperor 

Bajirao  v.  Dadibai 

Partap  Singh  v.  Emperor 

Rahimbeg  v.  Emperor  . . 

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

Pali  v.  Emperor 

Batisa  Kuer  v.  Raja  Ram  Pandey 

Barkatv.  Relu  Mai 

Laurentius  Ekka  v.  Dhuki  Koeri 

Prag  Devi  v.  Nathu  Mai 

Tarkeshwar  Prasad  Tewari   v,  Devendra  Prasad  Te- 


3ecil  Cole  v.  Nanalal  Moraji  Dave 

Parbodh  Singh  v.  Bodh  Raj 

Fateheand  v.  Parbati  Bai 

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

Chand 
D.  R.  K.  Saklat  v.  Bella 


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


Akbar  Ali  v.  Emperor 


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

A.  I.  R.  1926  Mad  ^96. 

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

^Calcutta  High  Court. 

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

L.  W.  573. 

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

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

B.  554, 

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

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

A.I.R.  1926  Mad.  319, 

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

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

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

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

7  L.  L.  J.  198. 

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

424. 

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

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

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

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

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

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

218. 

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

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

Cal.  550. 

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

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

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

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

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

172. 

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

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

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

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

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

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

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

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

J.  229. 


Vol.  92] 


15 


214 
215 
216 
217 
219 
222 
223 

221 
225 

233 
235 
237 
241 
241 
2i5 

247 
249 


249 
251 
252 
253 
254 
257 

258 
259 
260 
261 
262 
263 
264 

261 
265 
263 
270 
272 
273 
274 


278 
282 


289 


294 
295 
296 
297 


299 


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

Tula!  v.  Emperor 

Amiruddin  v.  Emperor 

Hari  Singh  v.  Emperor 

Siban  Rai  v.  Bliagwat  Dass 

Lachliman  Singh  v.  Emperor 

Surendra    Nath  Banerjce    v.   Shashi    Bhushan  Sar- 
kur 

Miran  v.  Emperor 

Dhanrajgirji  Narasinggirji  v.  Tata  Sons,  Ltd. 

China  v.  Te  Thoe  Seng 

Firm  Jai  Singh-Diyal  Singh  v.  Narmal  Das 

Baideo  Singh  v.  Gulab 

Asa  Nand  v.  Mali  mud 

Sadasheo  v.  Karim  ;  : 

Manavikrama  Zarnorin  Raja  of  Calicut  v.  Venkatagiri 

Paltar 

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

Godavari 

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

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

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

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

Hakim  Din  v.    Qutab  Din 

Bashir  Ahmad  v.  Zobaida   Khatuii 

Hussain  Bakhsh  v.  Sarbuland  .  • 

Maung  Sein  Htin  v.  Ghee  Pan  Ngaw 

Dittu  Rain  v.  Nawab 

Hazura  Mal-Lal  Chand  v.  Rang  Hahi 

Nag  Kuer  v.  Sham  Lai  Sahu 

Murad  Bibi  v.  Amir  Hamza  »« 

Kehri  Singh  v.  Thirpal 

Muhammad  v.  Muhammad  Ali 
Soundara  Rajan  v.  Natarajan 


Mahomed  Ghaus  v.  Mahomed  Ali  Shah 

Isram  v.  Gangia 

Moti  Mai-Ram  Sarup  v.  Daulat  Ram 

Attar  Singh  v.  Kirpa  Singh 

Firm  of  Ram  Prosad-Ram  Kissen  v.  Haro   Kumar 

Basak 
Mohan  Singh  v.  Nathu  Mai ... 


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

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

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

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

233 

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

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

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

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

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

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

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

7  L.  L.  J.  542. 

A.  I.  R.  1926  Nag.  267. 

23  L.  W.  58. 

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

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

Mad.  360. 

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

A.  I.  R.  1926  Oudh  191. 

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

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

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

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

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

A.  I.  R.  1926  Lah.  211. 

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

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

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

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

*Lahore  High  Court. 

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

*Lahore  High  Court. 

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

A.  I.  R.  1926  Lah.  243. 

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

A.  L  R.  1926  Lah.  188. 

*Nagpur  Judicial  Commissioner's  Court 

A.  I.  R.  1926  Lah.  231. 

A.  L  R.  1926  Lah.  175. 

"Calcutta  High  Court. 

"Lahore  High  Court, 


16 


INDIAN  CASES. 


300 

305 
308 
009 
311 

313 
314 
310 
317 
319 
321 


Veerappa  Chettiar  v.  Suiidaresa  Sastrigal 

Tapiram  v  .T  ,LM *•::-'. 

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

India 

Sita  Ram  v  Nanak  Chaud 

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


327 
330 
330 
332 
3.J2 
333 

33 1 
3 

338 


345 

316 
318 

350 

351 
352 
353 
354 
354 

335 
361 

364 
366 

367 
368 
358 

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


Punjab  Commercial  Syndkato 

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


;unjab   CVopera- 


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

R.  1925  Mad.  1201. 

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

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

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


Tukaram  v.  Uhintaunn 

Alice  Gcorgina  Skinner  v.  Mii^arram  Ali  Khan 

Alapatl  Raiuaswami  v.  Das.iri  Veiikataran.iA  ana 

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

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

NVrasimha  Mudali  v.  Pntti  NLu\iyunru-am'  Chttty    . 

Sakharam  v  Shoojam 
Kbazan  Singh  v.  I'nirao  Singh 

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

Venku  Shettithi  v.  liamaHiaudiayra 
Yasin  Bibi  v.  Munwar  Hussabi 

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

Badri  Sahu  v.  Pearc   Lai  Mi^ra 

Haji  RalimaUilUi  v  Secretary  of  Slate   tor  India     .. 

Sinuaima  Kono  v.  Muthupalani  Chetti 

Sri  Kishen  v  Chandra   S?khar  Baksh  Siiifth 

K.  Vcnkat  Reddiar  &  Co.   v.  nesikuohanar 

Virappa  Govindappa  Konradcli  v.  Basappa  Virabhad- 

rappa  t  .  , 

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

India  .  . 

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

Leoh  Moses  v.  Solomon  Judali  Meyer 

Ma  Me  Mya  v.  Ma  Min  Xan 

Chunilal  Mokamdas  Marwadi   v.  Christopher 

Nachiapjia   Chettiar  v.  Mahomed  Sabir  Khan 

Jethanand  Tekohand  v.  Secretary  of  State  for  India 

3inna  Karuppan  v.  Muthiah  Chettiar 

Rustom  K.  Sidhva  v.  Indian    Merchants  Association 

Sekkhu  Mustabu  v.  Nani  .  . 

Ratilal  v.  Ruglmath  Mulji 

Rudrappa  v.  Mariappa 

Yusif  Mahbub  &  Co.  y.  Salloh  Mahomod 

Chandayya  Hegde  v.  Kaveri  Hegadthi 

Sukhdeodas  Ram  Prosad  v.  Jaintilal  Jamunadaa    ... 

Satheppa  Chettiar  v.  Muthusami  Pillai 

Khiaras,  R.  P.  v.  Bhawanji  Narsi 

Sultan  Abdul  Kadir  r.  Mohammad  Ksuf 


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


P.  .L, 


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

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

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

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

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

22    L   W.  (J37;  49  M.  L.  J.  720;   A.  I.    17,   19l76 

Mad    118. 

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

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

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

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

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

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

i;>7. 

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

A.  I  R.  192ft  Mad.  378. 

*Allahabad  High  Couit. 

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

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

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

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

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

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

107. 

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

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

*Sirid  Judicial  Commissioner's  Court. 

A.  1.  R.  1926  Mad.  490. 

*Sind  Judicial  Commissioner's  Court, 

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

A.  I.  R.  1926  Cal  697. 

A.  1.  R.  1926  Mad.  537. 

A.  I.  R.  1926  Siud  8, 

23  L.  W.  468, 


Vol.  92] 


INDIAN  OASES. 


17 


398 

400 
401 
402 


403 
405 
411 
412 

414 
415 

416 

417 
410 
423 
424 
425 
426 

427 

428 
429 

430 
433 
439 
441 
442 

450 
451 
452 

453 
454 
456 
459 
460 

461 
462 
463 

465 
468 
470 

471 
472 

4T3 
474 
478 
479 
479 


Muthuvenkatarama    Reddiar   v.    Official     Receiver, 

South  Arcot 

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

wara 

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

Ram  Kuer  v.  Govind  Ram 

Thamaya  Bangaruswami  v.  Thirunathasundra  Dosa 


Gopalam  Garu  v,  Adusumilly  Gopalakriah- 
nayya 

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

Gulabchand  Rupji  v.  Emperor 

Kallu  v.  Emperor 
Champa  Devi  v.  Pirbhu  Lai 

Nga  Wa  Gyi  v.  Emperor  ... 

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

Ratan  Mani  v,  Hans  Ram 

Bhola  v.  Emperor 

Kadhori  v.  Emperor  .  . 

Keramat  Mandal  v.  Emperor 

Banwari  Lai  v.  Jhunka 

Thokala  Seihamma  v.  Yellaturi  Venkamma 

Madat  Khan  v.  Emperor 

Bahadura  v.  Emperor 

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

Pakkir  Mahamud  v.  Pichai  Thevan  ' 

Maqsud  Ali  v.  Abdullah 

Neelam  Venkataratanamma  v.  Vinjamoori  Varaha  ... 

Mulraj  v.  Indar  Singh 

Venkatasubba  Rao  v  Adinarayana  Rao 

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


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

23  L.  W.  87. 

A.I   R.  1926  All.  283. 

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

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

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

Mad.  190. 

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

L.  W.  406. 

*  Madras  High  Court. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All.  304. 

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

All.  225. 

*Madras  High  Court. 

L.  R.  6  A.  112  Civ.;  A.  I.  R.  1925  All.  342. 
49  M.  L.  J.  756;  (1926)  M.  W.  N.  44;  A.  I.  R. 

1926  Mad.  191. 

A.  L  R.  1926  All.  102;  48  A  150. 
22  L.  W.  631;  50  M.  L.  J.  46;  A.  I.  II.  1926  Mad. 

227. 

A.  L  R.  1926  All  290, 

4  Pat.  294;  A.  I.  U.  1925  Pat.  577;  7  P.  L.  T.  415, 
A.  I.  R.  1926  All.  300. 
2  L.  0.  107 
'Lahore  High  Court. 


18 


INDIAN  CASES, 


481 

482 
483 

484 
489 
491 
492 
493 
496 
497 

503 
504 

510 
M2 
514 
516 

517 


520 
522 
523 
f.24 
525 
526 

526 
527 
530 
531 
532 

533 

535 
537 


541 
542 
544 
545 
546 
548 

549 

549 

551 


553 
554 
555 
555 
556 
558 
559 

562 
563 
566 


Subramaniam  Patter  v.  Vein  Nair 

Durga  Bai,  In  ihe  matter  of 

Narayanaswami  Filial  v,  Gopalakrishna  Naidu 

Bago  v.  Roehan  Beg 

Ma  Tok  v.  Ma  Yin 

Asanalli  Nagoor  v.  Mahadu  Meera 

Gokul  Das  v.  Nathu 

KalaGellav  Sbivji 

Abdul  Majid  v.  Wahidullah 

Official  Receiver,  Tanjore  v.  Nagaratna  Mudaliar  .„ 

Muhammad  Ismail  v.  Vahiduddin 

Sankaralinga  Mudaliar  v.  Official  Receiver,  Tinnevelly 

Radha  Kiehun  v.  Kashi  Nath 
Maung  Set  Khahig  v.  MaungTun  Nyein 
Muhammad  Ibrahim  v  Ram  Chandra 
Vencatachariar  v.  Bontham  Pachayappa  Chetty 

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

Thirumalai  Pillai  v.  Arunchella  Padayaohi 

Ganga  Dhar-Baij  Nath  v.  U  B.  A  C.  T  Ry. 

Shiva  Aithala  v.  Rangappaya  Aithuia 

ITnnaxnalai  Animal  v.  Abboy  Chetty 

Dignmbar,  In  re 

Peria  Nambi    Srinivnsachariar  v.    Kuna  Ramasamy 

Naicker 

Aisban  v.  Municipal  Committee,  Lahore 
Gajanan  Narayan  Patkar  v.  Jivangiri  Chamelgiri  ... 
Kisan  v.  Jasodabai 
Ruldu  Ram  v.  Surain  Singh 
Bombay  Baroda    <&  Central  India    Ry.  v.  Gulabbhai 

Bl   >v.-K/}!S 

KalhaKKai  v.  Palani  Koundan  . 

Ganppt  Rai  v.  Kani  Ram-Munna  Lai 
Vishvanath  Shamba  Naik  v.    Ramkrishna    Nartoba 
Kasbekar 

Racharla  Narayanappa  v.  Kondigi  Bheemappa 
Balshet  Muhadshet  Yekawde   v.  Hari  Baburao  Rane 
Surendra  Nath  Das  Gupta  v.  h'atyendra  Nath 
Chandulal  Maganlal  v  Motilal  Harilal 
AtaHusainv    Mustafa  Hu sain 
G.  I.  P.  Ry.  Co.  v.  Chandulal  Sheopratab 

Basant  Rai  Bhandari  v.  Saltk  Ram 

Fulchand  Mohaiilal  v.  Harilal  Nansa  ["t 

Batuk  Nath  v.  Jugal  Kishore 

Shri  Goverdhanlalji  Maharaj  v.  Shri  Chandraprabha- 

vati 

Muhammad  Ibrahim  v.  Yado 
Shidraj  Bhojraj  Desai  v.  Renaki  Konda  Mahar 
Ghissu  v.  Amir  Ali  Khan 
Devji  Padamsey  v.  Thommadra  Erikalappa 
Sivan  Pillai  v.  Venkateswara  Iyer 
Pancharn  Lai  v.  Muhammad  Yaqub 
Qamar  Jahan  Begam  v.  Munney  Mirza 

T'ahilram  Tarachand  v.  Vassumal  Deumal 
Gobind  Lai  Dutt  v.  Official  Assignee,  Calcutta 
Subramania  Iyer  v.  Shumnugam  Chettiar 


567     Ram  Saran  Baa  v.  Girdhari  Lai 


TT."-"  **"-'  '-  ""  ••-    ' 


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

36;  A.  I.  R.  1926  Mad.  249. 
24  A  L  J  310  A.  I  R.  1926  All.  301. 
(1H25)  M.  W.  N.  780;    22  L  W.  618;  A.  I.  R.  1926 

Mad.  J 12;  50  M  L.  J.  48. 
*Lahore  High  Court. 
3  R.  77;  A  1.  R.  1925  Rang  228. 
22  L.  W.  820:  A.  I  R.  1926  Mad.  259. 
24  A.L.  J.  291. 

*8ind  Judicial  Commissi oner's  Court. 
A.  I.  R.  1926  All.  284. 
49  M.  L.  J.  643;  (1925)  M.  W.  N.  907;  A.  I.  R. 

1926  Mad.  194. 

24  A.  L.  J.  311;  A.  I.  R.  1926  All.  270. 
49  M.  L.  J.  616;  (1925)  M.  W.  N.  832;    A,  I.  R. 

1926  Mad.  72. 

24  A.  L.  J.  241;  A.  I.  R.  1926  All.  266. 
A.  I.  R.  1925  Rang.  221;  4  Bur.  L.  J.  69;  3  R.  82. 
24  A.  L  J.  244;  A.  I.  R.  1926  All.  289. 

22  L.  W.  698;  (1926)  M.  W.  N.  106;  A.  I.  R.  1926 
Mad.  250. 

27  Bom.  L.  R.  1471;  A.  I.  R.  1926  Bom.  129;  30 

B.  87. 

A.  I.  R.  1926  Mad.  540. 
24  A.  L.  J.  328. 
49  M.  L.  J  7J9;  A.  I.  R.  1926  Mad.  233. 

23  L.  W.  lf>8;  50  M.  L.  J.  172. 
A.  I.  R,  1926  Nag.  306. 

A.  I.  R.  1926  Mad.  509. 

•"Lahore  High  Court 

27  Bom.  L.  R    1405;  A.  I.  R.  1926  Bom,  131. 

A-I.  R.  1925  Nag.  298. 

7  L.  L.  J.  618;  A.  I.  R.  1926  Lab.  120. 

A.I.  R.  1926  All.  296. 

23  L.  W.  227;  50  M  L.  J.  2fO;  (1926)  M.  W.  X. 
245;  A.  I.  R.  1926  Mad   412. 

24  A.  L,  J.  283;  A,  I.  R  192(5  All.  293. 

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

94. 

A.  I.  R.  1926  Mad,  494. 
27  Bom.  L.  f  .  1487;  A.  I.  R.  1926  Bom.  119. 
"•Calcutta  High  Court. 
27  Bom.  L.  R    1492;  A.  I.  R.  1926  Bom.  43. 
•"Allahabad  High  Court. 
27  Bom    L.  R.  1500;  A,  I.  R.  1926  Bom.  138; 

50  B.  84 

A.  I.  R.  1920  Oudh  288. 
27  Bom.  L.  R.  1503;  A.  I.  R.  1926  Bom.  69;  50 

B.  124. 
24  A.  L.  J.  281;  A.  I.  R.  1926  All.  285. 

27  Bom.  L.  R.  1496;  A.  I.  fc.  1926  Bom.  136. 

A.  I  R.  1926  Nag,  238. 

27  Bom.  L.  R.  145*0;  A.  I.  R.  1926  Bom.  140. 

"Allahabad  High  Court. 

27  Bom.  L.  R.  149,4;  A.  I,  R.  1926  Bom.  63. 

22  L.  W.  796;  A.  J.  R.  1926  Mad.  130. 

24  A.  L.  J.  313;  A*I.  R.  1926  All.  294. 

12  0.  L  J.  313,  2V0.  W.S.  413;  A.  I.  R.  19J5 

Oudh  613.    * 
A.  I.  R.  1926  Sind  119. 
29  C.  W.  N.  163;  A  I.  R.  1925  Cal  291. 
41)  M.  L.  J.  363;  32  L.  W  533;  A.  I.  R.  1026 

Mad.  65. 
24  A.  L.  J,  286;  A.  I,  R.  1926  All,  305, 


Vol.  92] 


INDIAN  CA8BS, 


569 
570 

571 
573 

575 
577 

584 
581 
587 
588 

588 
589 
590 
590 

591 
591 

593 
593 

591 


595 
597 

597 
599 

600 
601 
602 
603 


603 
608 
610 

612 
615 


616 
617 

620 
621 
621 

622 
624 

626 
626 


Bulli  Mai  v.  Jhabba 

Tulasidass  Govindjee  v.  Madharadass  Lalajee  • 

Atma  Ram  v.  Nanak  Chand 

Chi  Mammal  v.  Ponnuaami  Naicker 

Parumal  Thawerdas  v.  Makhan 
Ram  Karan  v.  Emperor 

Khamani  v.  Emperor 
Indar  Singh  v.  Emperor 
Wasal  v.  Emperor 
Kashi  Prasad  v.  Emperor 

Emperor  v.  Gulab 

Krishna  Gopal  v.  Emperor 

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

Emperor  v.  Ghulam  Mohammad 

Emperor  v.  Kesar 
Kalap  Nath  v.  Emperor 

Bashirulla  Bhiriyav.  Meajan 

Tadepalli     Subba     Rao    v.      Motamari      Lakshmi- 

narayana 
Gonnabathula    Thammayya  v.  Gonnabathula    Chin- 

nayya 

Munshi  Ram  v.  Bhagwan  Das 

Muhammad  Mohideen    Maracayar    v,  Ramanadhan 

Chettiar 

Nand  Ram  v.  Tshar 
Chockaliugam  Pillai  v.  Pichappa  Chettiar 

Mumtaz  Ali  v.  Allah  Banda 
Adam  Sardar  v.  Bisweswar  Das 
Municipal  Committee,  Ferozepore  v.  Milkhi  Ram    ... 
Muthu  Veerappa    Chettiar  v.  U.  K.  Sivagurunatha 
Pillai 

Bengal  North- Western  Ry.  v.  Bansi  Dhar 

Lalman  v.  Shiam  Singh 

Municipal  Council,  Tuticorin  v.  Shunmugha  Moopanar 

Ganga  Bakhsh  Singh  v.  Maula  Bux  Singh 
Vadapalli  Varadacharyulu  v,  Khandavilli  Narasimha- 
chary ulu 

Chandra  Kumar  Guha  v.  Elahi  Buksha 
Jitendra  Nath  Chatterjee  v.  Jasoda  Sahun 

Abdul    Rahiman    Sahib  &   Co.  v.  Shaw    Wallace  A 

Co. 
Langley  Billimoria  &  Co.  v.  Lakhmichand-Gopal- 

Das 
Kaliba  Sahib  v.  Subbaraya  Ayyar 

Chandrabhan  Prakashnath  v.  E.  I.  Ry.  Co. 
Tiruvangalath  Nellyoton  Paidal  Nayab,  In  re 

Hitendra  Singh  v,  Maharajdhiraj  of  Darbhanga    ... 

Alella    Kesavaramayya  T.   Visawsetti  Venkatanara- 
simha 


A.  I.  R.  1025  Lah.  504;  7  L.  L.  J,  280. 

22  L.  W.  642;  (1926;  M.  W.  N,  68;  A.  L  R.  1928 
Mad.  148. 

A  I.  R.  1926  All.  274. 

23  L.  W.  94;  (1926)  M.  W.  N,  121  A  172;   50  M. 
L,  J.  180;  A.  I  R.  1926  Mad.  363. 

A.  I.  K.  I02'l  Bind  113. 

9  L.  L  J.  371;  A.  1  R.  1925  Lah.  483;  2  L.  C. 

197;  27  Cr.  L.  J.  289. 
L.  R.  6  A.  207  Cr.;  24  A.  L.  J.  171;  27  Cr.  L,  J. 

296;  A.  I.  R.  1926  All.  306. 
27  Cr.  L.  J.  297;  24  A.  L.  J.  270;  A.  I,  R.  1926 

All.  302. 
A.  I.  R.  1925  Lah.  495;  7  L.  L.  J.  277;  27  Cr.  L. 

J.  299. 

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

27  Or.  L.  J.  300. 

27  Cr.  L.  J.  301. 

27  Cr.  L.  J.  305. 

A.  I.  R.  1925  Lah.  510;  7  L.  L.  J.  331;  27  Cr.  L. 

J.  302. 
27  Cr.  L.  J.  303;  24  A.  L.  J.  228;  A.  I.  R.   1926 

All.  226. 
27  Cr.  L.  J.  303;  24  A.  L.  J.  292;   A.  I.  R.  1926 

All.  288. 
A.  I.  R.  1926  Cal.  690. 

22  L.  W.  389;  A.  I.  R.  1925  Mad.  1214. 

22  L.  W.  752;  (1926)  M.  W.  N.  38;  A.  I.  R.  1926 

Mad.  282. 
7  L.  L.  J.  596;  A.  L  R.  1926  Lah.  152. 


22  L.  W.  872;  A.  I  R.  1926  Mad.  217. 
7  L  L  J.  600;  A.  T.  R.  1926  Lah.  12*. 
22  L.  W.  579;  (J925)  M.  W.  N.  602;  A.  I.  R. 

Mad  155. 

'Allahabad  High  Court. 
A.  I.  R  1926  Cal.  6*4. 
A.  I.  R.  1925  Ltth.  505;  7  L.  L.  J.  358. 


22  L  W.  617;   49  M.  L.  /.  697;  a92(tt  M.  W.  N. 
63;  A.I  R.  1926  Mad.  133;  49  M.  217. 

3  O.  W.  N   145;  A.  1.  R.  1926  Oudh  218. 

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

(1925)  M.  W.  N.  F80;  23  L.  W.  31;  A.  1.  R.  1926 

Mad.  251;  49  M.  219. 
13  O.  L.  J.  132. 

(1925)  M.  W.  N.  886;  23  L.  W.  85;  A.  I.  R.  19J6 

Mad.  258. 

A.  I.  R.  1926  Cal.  667. 
(1925)  Pat.  353;  A.  I.  R.  1926  Pat.  122;  7  P.  L 

T.  299. 

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

*8ind  Judicial  Commissioner's  Court 

23  L.  W.  99;  (1926)  M.  W.  N.  123  A  175;  A.  I.  R. 
1926  Mad.  365. 

24  A.  L.  J.  305;  A  I   R.  1926  All.  299. 

22  L.  W.  (191;  1626  M.  W.  N.  169;  A.  I.  R.   1926 
Mad.  225. 

(1925)  Pat.  359;  A.  I.  R.  1926  Pat.  147;    7    P.  L 
T.  392. 

(1926)  M.  W.  N.  141:  50  M  L.  J.  3C;   23  L.  W. 
678;  A,  I.  R.  1926  Mad.  452, 


INDIAN  OASES, 


[1926 


128 
629 
631 
633 


637 

640 
64* 
646 
651 
€53 

€56 
657 
661 

663 
665 
667 
667 
669 
670 
672 
673 
674 
675 

677 
678 
679 
681 


681 
683 

684 
685 

687 
688 
689 

693 
694 
695 

697 

697 
702 

703 
705 
708 
709 

709 


713 
714 


Vishvanathbhat  Annabhat  v.  Mallappa  Ningappa    .., 
Bhatu  Ram  Modi  v,  Fogal  Ram  '   , . 

Arunchellam  Chettiar  v.  U  To  Lu 
Ram  Protap  Chamria  v.  Durga  Prosad  Ohaniria 


Ram  Shankar  Singh  v.  Lai  Bahadur  Singh 

Gopilal  Bhawaniram  v.  Pandurang 

Muhammad  Zakaria  v.  Kishun  Narain 

Shankar  v.  Pandurang 

Lai  Ohand  v.  Huns  Kumar 

Mahadeva  Iyer  v.  Ramkrishna  Reddiar  „ 

Ahmun  Zaida  v.  Gurdas  Ram  %%( 

Sartaj  Koer  v.  Mahadeo  Bux 

Koyyalamudi     Chinnayya   v.   Koyyalamudi   Mang- 
amma  ,0 

Narayan  v.  Dhudabai 
Sarda  Bux  Singh  v.  Kandhia  Bux 
Maung  Po  Seik  v.  U  Nandiya 
Moolji  Murarji  Sunderji  v.  Pinto 
Roshan  Lai  v.  Rustomji 
Indarpal  Singh  v.  Kalloo 
Addepalli  Kondayya  v.  Yandru  Vecranna 
Gauri  Shankar  v.  Decruze 

Firm  Bihari  Lal-Jai  Narayan  v.  liar  Narain  Das     ... 
Raisun  Nisa  v.  Zorawar  Sah 

M.  S.  S.  Ohettyar  Firm  v.  Ma  Tin  Tin 
Gopal  v.  Krishnarao  ttt 

Kidar  Nath  v.  Bhikham  Singh 
Bhupendra  Narayan  Singh  Bahadur  v.  Madar  Bakhsh 
Sheikh 

Chandrika  Prasad  v.  Nazir  Husain 
Indal  v.  Debi 

Balaram  Manjhi  v.  -1  :Lr:ii\--'t\-]\  Manjhi 
Mahadeo  Prasad  v.  K,:;:i  I':.;:i 

Suggusctty  Subbayyav.  Irugulopati  Gangayya 

Maung  Han  v.  Ko  Oh 

Emperor  v.  Manant  K.  Mehta  „. 

Emperor  v.  Mathro 

Beni  Ram  v.  Emperor 

Kannammal,  In  re  \\\ 

Babu  v.  Emperor 

B.  N.  Ry.  Co.  v.  Makbul 

Maung  Tun  v.  Emperor  Ml 

Shaikh  Kariin  v.  Emperor 

Radha  Kishen-Ohuni  Lai  v.  Ahsa  Mal-Ishar  Dai    ... 

Mansaram  v.  Budhu 

Mahfab  Shah  v.  All  Haidar  Shah  ] '.  \ 

Trustees,   Parakkat    Devaswom   v.    Venkatachalam 
Vadhayar 

Raghunath  Dai-Ram    Sarup   v.    Sulzer  Bruderer  & 
Co.  Mt 

Ttramonee  Ohoudhurani  v.  Sheikh  Elim 


27  Bom.  L.   R.  1103;  49  B.  821;  A.  I.  R.  1925 

Bom.  514. 
(1925)  Pat.  357;  5  Pat.  223;  A.  I.  R.  1926  Pat 

141;  7  P.  L.  T.  340. 
4  Bur.  L.  J.  91;    A.  I.  R.  1925  Rang.  26fl;  3   R 

318. 
3  O.  W.  N.   127;  A.  I,  R.  1925  P.   0.  293;   49 

M.   L.  J.  812;  43  C.  L.  J.  14;   24  A.  L.  J.  13; 

(1926)  M.  W.   N.   96;     3  Pat.   L.  R.   330;  28 

Bom.  L.  R.  217;  53  C.  258.  P.  C. 
3  0.  W.  N.  267;   A.  I.  R.  1926  Oudh  2?7;   13  O. 

L.  J.  J16. 

A.  I.  R.  1926  Nag.  241. 
A.  I.  R.  1926  All.  268. 
9  N.  L  J.  22 

7  L.  L.  J.  5£0;  A.  I.  R.  1926  Lah.  108;  7  L.  55 
23  L.  W.  199;  50  M.  L.  J.  67;  A.  I.  R.  1926  Mad. 

114;  (1925)  M.  W.  N.  707. 
A.  I.  R.  1926  Lah.  225. 
A.  I.  R.  1926  Oudh  332. 

*Madras  High  Court. 

21  N.  L.  R.  38;    A.  I.  R.  1925  Nag.  299. 

*Oudh  Chief  Court. 

A.  I.  R.  1925  Rang.  374;  4  Bur.  L.  J.  178. 

*Sind  Judicial  Commissioner's  Cour£. 

A.  I.  R.  1926  Lah.  249. 

*Oudh  Chief  Court. 

A.  I.  R.  1926  Mad.  543. 

3  O.  W.  N.  378. 

*Lahore  High  Court. 

3  0.  W.  N.  121;  13  0.  L.  J.  10;  A.  I.  R.   1926 

Oudh  228. 

A.  I.  R.  1925  Rang.  349;  4  Bur.  L.  J.  179. 
*Nagpur  Judicial  Commissioner's  Court. 
*0udh  Chief  Court. 


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

439;  53  C.  1  P.  C. 
A.  I.  R.  1926  Oudh  306. 
A.  I.  R.  1926  Nag.  174. 
A.  I.  R.  1925  Pat.  760. 
3  0.  W.  N.  186;  13  0.  L.  J.  55;  A.  I.  R.  1926 

Oudh  258. 

22  L.  W.  827;  A.  I.  R.  1926  Mad.  183. 
A.  I.  R.  1925  Rang.  366;  4  Bur.  L.  J.  180. 

~  Bom  L.  R.  1343;  49  B.  892;  A.  I.  R.  1926 

Bom.  110;  27  Cr.  L.  J.  305. 
27  Cr.  L.  J.  309;  A.  I,  R.  1926  Sind  101. 
27  Cr.  L.  J.  310;  A.  I.  R.  1926  All.  237. 

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

24  A.  L.  J.  280;  27  Cr.  L.  J.  313;  A.  I.  R.  1926 
All  276. 

A.  I.  R.  1925  Pat.  755;  (1926)  Pat.  74;  27  Cr.  L, 

J.  313;  7  P.  L.  T.  343. 
A.  I.  R  1925  Rang.  353;  4  Bur.  L.  J.  172;  27 

Cr.  L.  J.  318. 

27  Cr.  L.  J.  319;  A.  I.  R.  1926  Nag.  279. 
7L  L.  J.603;  A.  I.  R.  1926  Lah.  91. 
A.  I.  R.  1926  Nag.  289. 

6  L.  338;  A.  1.  R.  1925  Lah.  429;  7  L.  L.  J 
190. 

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

7  L.  L,  J.  611;  7  L,  42;  A.  I.  R.  1926  Lah.  125. 
A.  I.  R.  1926  Cal.  582. 


Vol.92J 


INDIAN  CASES. 


21' 


715 
719 
720 

721 
722 
723 
724 
725 
726 

727 
730 
731 

732 
735 
736 
737 

741 
742 
743 
744 

746 

747 
748 
749 
750 

750 
752 

753 

757 
759 
760 


76* 
764 
765 
766 
768 
769 
770 
771 
772 
775 
771 

777 
779 
780 
782 

785 
786 
787 
790 


791 
792 
796 


May appa  Ghettiar  v.  Kolandaivelu  Ohettiar 

Maung  Mya  Din  v.  Maung  Ye  Gyi 

Mulugu  Chengayya  v.  Aruvelu  Devasanambagaru  ... 

Thakar  Singh  v.  Indar  Singh 

Shankar  Baksh  v.  Taluqdei 

Bantu  v.  Lehna  Das 

Komarasami  Ohetti  v.  Sundar  Mudaliar 

Buta  r.  Ghulam  Muhammad 

Bohisetti  Mamayya  v.  Official  Receiver,  Guntur 

Baikuntha  Nath  Kar  v.  Adhar  Chandra  Pain 
Pothi  Annapurnayya  T.  Pothi  Nagaratnamma 
Nihal  Singh  T.  Secretary,    Gurdawara    Guru  Tegh 

Bahadur 

Ohandoo  r.  Murlidhar 
Ghandrabhaga  Bai  v.  Bakaram 
Mg.  Po  Ki»  T.  Mg.  Po  Oh 
McDonnell  v.  Emperor 

Narain  Da*  v.  Emperor 
Jeomal  v.  Emperor 
Emperor  v.  Daulat  Singh 
Parakh  v.  Emperor 

Chiragh  Din  v.  Emperor 

Rukmtni  Ammal  v.  Muthuswami  Reddi 

Sictik  v.  Emperor 

Diwan  Chand  v.  Emperor 

Kaliappa  Goundan  v.  Maniam  Sellappa  Goundan    .. 

Nazar  Shah  v.  Emperor 
Ah  Khaung  v.  Emperor 

Thanappa  Chetty  v.  Esuf  Khan  Sahib 
Ram  Pher  Singh  v.  Sheo  Saran  Singh 
Noor  Din  v.  Sulakhau  Mai 

Firm  of  R.  B.  Bansilal  Abirchand  v.  Ghulam  Mahbub 
Khan 


Ladha  Singh  v.  Sundar  Singh 

Prabhudayal  r.  Lalta  Das 

Municipal  Committee,  Taran  Taran  v.  Mul  Raj 

Mahomed  Siddiq  v.  Li  Kan  Shoo 

Lallu  Singh  T.  Gur  Narain 

Abdul  Qadir  T.  Ilahi  Bakhsh 

Ayyaru  Pillai  v.  Varadaraja  Pillai 

Savareie  T.  Wakf  Estate  of  Ismail  Ahmed_Mada     ... 

Shib  Nnrain  r.  Gajadhar 

Ma  She  we  U  T.  Ma  Shin 

Thirumalachtriar  v.  Athimoola  Karay alor 

Mtung  San  Pwe  v.  Hamadanee 

Taj  Mohammad  v.  Farid  Khan 

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

Pattamayya  v.  Pattayya 

Sheikh  Badal  v.  Abdul  Rahim 
Chan  Eliiam  v.  Neo  Thein  Theong 
Kallu  Mai  v.  Partab  Singh 

Kannuri  Venkata  Siva  Rao  v.  Chittoori  Rama  Krish- 
nayya 

Abdul  Qadir  v.  Ilahi  Bakhsh  ,.. 

Ramakka  v.  Negasam  ».« 

Marotrao  v.  Municipal  Committee,  Nagpur 


"Madras  High  Court. 

A.  1.  R.  1925  Rang.  350;  4=  Bur.  L.  J.  136. 

50  M.  L.  J,  145;  2.3  L.  W.  390;  (1926)  M.  W.  N. 

289;  A.  L  R  1926  Mad.  406, 
*Lahore  High  Court. 
3  O.  W.  N.  375. 
"Lahore  High  Court. 
23  L.  W.  212. 
A.  1.  R.  1926  Lah.  247. 

23  L.  W.  10;  (1926)  M.  W.  N.  124;  A.  I.  R.  1926 
Mad.  338. 

A.  I.  R.  1926  Cal.  653. 
A.  I.  R.  1926  Mad.  591. 

A.  I.  R.  1926  Lah.  228. 

13  O.  L.  J.  138;  A.  I.  R.  1926  Oudh  311. 

A.  I.  R.  1926  Nag.  276. 

A.  I.  R.  1925  Rang.  373;  4  Bur.  L.  J.  160. 

A.  I.  R.  1925  Rang.  345;  4  Bur.  L.  J.  147;  I  R. 

524;  27  Cr.  L.  J.  321. 
27  Cr.  L.  J.  325. 
27  Cr.  L.  J.  326. 

24  A.  L.  J.  221;  27  Cr.  L.  J.  327. 

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

7L.L.  J.621;  27  Cr.  L.  J.  330. 

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

27  Cr.  L.  J.  332. 

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

23  L  W.  101;  A.  I.  R!  1926  Mad.  296;  27  Cr.  L. 

J.  334. 
27  Cr.  L.  J.  334. 

4  Bur.  L.  J.  143;  A.  I.  R.  1925  Rang.  363;  27  Cr. 
L.  J.  336. 

23  L.  W.  36. 

3  O.  W.  N.  133;  A  I.  R.  1926  Oudh  196. 
A.  I.  R.  1926  Lah.  230. 

A.  I.  R.  1925  P.  C.  290;  49  M.  L.  J.  806;  43  C.  L. 
J.  1;  23  L.  W.  3,  24  A.  L  J.  48-  (1926)  M.  W. 
N.  108;  28  Bom.  L.  R.  211;  53  C.  88;  30  C.  W. 
N.  577  P,  C. 

*  Lahore  High  Court. 
A.  I.  R.  1926  Oudh  293. 

*  Lahore  Hi#h  Court. 

A  I.  R  1925  Rang  372;  4  Bur.  L.  J.  154 

*Allahabad  High  Court. 

A.  L  R.  1926  Lah.  251. 

50  M  L.  J  116;  A.  L  R.  1926  Mad.  431. 

A.  I.  R.  1925  Rang  376;  4  Bur.  L.  J.  157. 

24  A  L.  J.  260. 

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

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

Mad.  256. 

A,  I.  R.  1925  Rang.  382;  4  Bur.  L.  J.  166. 
"Lahore  High  Court. 
A.  L  R.  1925  Rang.  367;  4  Bur.  I'.  J.  161. 
50  M.  L.  J  215;  (1926)  M.  W.  N.  262;  A.  I  R.  1926 

Mad.  453. 

A.  L  R.  1926  Nag  273. 
A.  I.  R.  1925  Rang.  361;  4  Bur.  L.  J.  138 
A.  I.  R,  1926  Oudh  301. 

(1925)  M.  W.  N.  874;  23  L.  W.  103;  50  M.  L.  J. 

148;  A.I.  R.  1926  Mad.  2 16. 
"Lahore  High  Court. 

47  M.  800;  48  M.  L.  J.  89;  A.  L  R.  1925  Mad.  145, 
A.  I.  R.  1926  Nag.  281. 


INt>IAN  CASfcS. 


800 


802 


805 
810 
813 
814 

818 
819 
822 
823 


824 
825 


812 
833 

838 
830 
840 
841 
843 
844 

845 
846 
847 

640 

650 
851 

854 

855 
855 

* 

862 
863 
865 

870 
871 

873 


674 

S82 

883 

885 
897 
869 


Kommareddi  Ramachandrayya  v.    Vodury  Venkata- 
ratnani 


Venkata    Narasimha   Rao 
yana 


v.  Hemadu    Suryanara- 


Ramchandra  v.  Lakshmtn 

Koyyalamudi  Subbanna  v.  Koudri  Subbarayudu    ... 

Vinayak  v.  Kaniram 

Ram  Bhaj  v.  Duni  Chand 

Chintalapati    Futchi    Seetayya    Garu   v.    (Jollavilli 

Appadu 

Barkoo  v.  Atmaram 

Veeraswami  Pillai  v.  Chidambaram  Chettiar  .  . 

Dawlat  v.  Kashirao 
Ramasami   Goundan  v.  Alagia  Singaperumal  Kada- 

vul 

Thakur  Singh  v.  Sonkuar  .  . 

Sukhdeo  v.  Ram  Dulari 

Vehmlapalli  Seetharamamma  v.  Maganli  Appiah    .. 
Bajrang  Bali  v.  Mahrajia  . . 

Subramania  Aiyar  v.  Krishna  Iyer  .  . 

Meenakshisundara  Nachiar  v.  Vcerappa  Chtttiar 
Umrao  Singh  v.  Bcni  Prashacl-M eh r  Ohand 
MuhammacT  Afzal  v.  Muhamn  ad  Mahmud 
Chimashani  v.  Venkatrao 
Aswap  Ali  Bepari  v.  Dula  Mia 
Kommineni    Appalaswamy  v.  Kommineni  Simhadri 

Appadu 

SattiBhusan  Mallick  v.  Sndananda  Mallick 
Swaminptha  Odayar  v.  Thiagarajaswami  Odayar    ... 
Naraj  anaswami  lyengar  v.  Thip^ayya 

Fmperor  v.  $ga  Tun  Maung 

Imam  AH  v.  Emperor 

Local  Government  v.  Doma  Kunbi 

Emperor  v.  Maung  Than  Gyaung 

Vaithi  Matharan  v.  Narayanaswami  Iyer 
Dwarka  v.  Emt 


Ishwar  Das  v. 


>ror 
peror 


Jalal  Uddin  v.  Emperor 

Kandasami  Chetty,  In  re 

Mulai  Rai  v.  Emperor 

A  jo  Mian  v.  Emperor  ,M 

Masala  v.  Emperor 

Jeobaran  Singh  v.  Ramkishun  Lai  • . 

A  lam  path  Kriehnan  v.  Municipal  Prosecutor,  Cunna 
nore 

Badri  Choudhry  v,  Emperor 

SUm  Charan  v.  Emperor 

Chamari  Singh  Y.  Public  Prosecutor  of  Gays  • . 

Parmeshar  Lall  v.  Emperor  4.. 

Abdul  Bari  Mallick  v.  Emperor4 

Mul  Chand  v.  Emperor  ^ 


22  L.  W.  582;  (1925)  M.  W.  N.    604;  A.  I.  R.  1926 
Mad.  153. 

50  M.  L.  J.  75;  2,3  L.  W.  409;  A.  I.  R.  1926  Mad. 

325. 

9  N.  L.  J.  3;  A.  I.  R.  1926  Nag.  298. 
50  M.  L.  J.  1%25;  A.  I.  R.  1926  Mad.  390. 
A.  I.  R.  1926  Nag,  293. 
A.  I.  R.  1926  Lati.  240. 

A.  I.  R.  1926  Mad.  526. 

*Nagpur  Judicial  Commissioner's  Court. 

*Madras  High  Court. 

A.  I.  R.  192(5  Nag  280. 

22  L.  W.  701;  (1926)  M.  \V.  N.  117;  50  M.  L.  J. 
42;  A.  I.  R.  1926  Mad.  280 

*Nagpur  Judicial  Commissioner's  Court. 
A.  1.  R.  1926  Oudh  313. 

23  L.  W.  285;  (1926)  M.  W.  N.  238;  A  I.  P.  19?6 
Mad.  457. 

*0udh  Chief  Court 

(1925)  M.  W.  N.  £87;  A.  J.  R.  1926  Mad.  211. 
(1926)M.W.  N.4. 

*Lahore  High  Court. 

'J4  A.  L.  J.  307. 

8  N.  L.  J.  135;  A.  I.  R.  1C2G  Nag.  79. 

A.  L  R.  1926  Cal.  580. 

23  L.  W.29;  A.  L  R.  1926  Mad.  384. 

"Calcutta  High  Court. 

23  L.  W.  26;  (1926;  M.  W.  N.  140. 

(1926)  M.  W.  N.  1;  23  L.  W.  382;  A.  1.  R.  1026 
Mad.  366. 

A-  L  K-  1925  Rang.  362;  4  Bur.  L.  J.  169.  27  Cr. 

L.  J.  337. 

27  Cr.  L.  J.  338;  A.  L  R.  1926  Lah.  212. 
27  Cr.  L.  J.  339. 
A.  I.  R.  1925  Rang  375;  4  Bur.  L.  J.  145;  3  R. 

514;  27  Cr.  L.  J.  342. 

22  L.  \V.  673;  A.  I.  R.  1926  Mad.  210;  27  Cr.  L. 
L.  J.  343. 

27  Cr.  L.  J.  343. 

27  Cr.  L.  J.  344;  A.  I.  R.  1926  Oudh  2SO. 

24  A.  L.  J.  230;  27  Cr.  L.  J.  345;  A.  1.  R.  1926 
All.  271. 

50  M.  L.  J.  44;  (1926)  M.  W.  N.  146;  27  Cr.  L.  J. 

350;  A.  I.  R.  1926  Mad.  346. 
24  A.  L  J.  314;  27  Cr.  L.  J.  351;  A.  1.  R. 

1926  All.  277. 
6  P.  L.  T.  626;  A,  I.  R.  1925  Pat.  696;  27  Cr,  L. 

J.  353, 

27  Cr,  L.  J.  358, 
4  Pat,  503;  A,  I,  R.  1925  Pat.  623;  27  Cr.  L.  J. 

359. 

23  L.  W.  413;  27  Cr.  L.  J.  361;  A.  I.  R.  1626 
Mad,  430. 

6  P.  L.  T.  620;  A.  I.  R.  1926  Pat.  20;  27  Cr.  L 
J.  362. 

24  A.  L.  J.  317;  27  Cr,  L.  J.  370. 

4  Pat.  484;  A.  I,  R.  1925  Pat,  677;  27  Cr.  L.  J, 

371;  7  P.  L.  T.  372. 
4  Pat.  472;  A.  I.  R.  1925  Pat.  678;  27  Cr.  L.  J. 

373. 
42  C.  L  J  585;  A.  I.  R.  1926  Cal.  157;  27  Cr.  L. 

J.  375;  30  0.  W.  N.  644 
27  Cr.  L.  J.  377;  A.  I.  R.  1926  Lah.  250. 


Vol  92J 


INDIAN  CASE& 


889 

890 
892 
894 


895 
895 
897 

897 
898 
81)9 

899 
900 

90; 

903 

903 

906 

90S 

JH) 

1)1 

915 

916 
918 
923 
928 

940 
913 


016 
947 
948 
949 
950 
980 
961 
962 


063 


073 


076 
077 

080 
981 
982 
984 


000 
091 
003 


Mustaqhuuddin  v.  Emperor 

Arshed  All  v  Emperor 
Rmperor  v.  Tej  Ram  • 
Lalit  Kumar  Ssn  v.  Emperor 

Mughees-ud-din  v.  Empsror 

Puran  v.  Emperor 

Venugop.  1  Nayudu,  In  re 

Durga  Prosad  Lahiri  Choudhuri  v.  Ratan  Mahommed 

Sarkar 

Wilayati  Begam  v  Jhandu  Mal-Mithu  Lai 
Bhagwandas-Paras  Kam  v.  Jado  Nath 
Prayaga  Doss  Jeevaru  v.  Padiella  Doraiswaini  lyen- 

gar 

Baikuntha  Nath  D.3  v.  Shaik  Hiri 
Bibi  Khodaijatul  Kobra  v.  Harihar  Misser 

Khurshed  Meerza  v.  Faizuddia  Ali 

Kudan  Singh  v .  Kalka  Singh 

Abdul  Wahed  Khan  v.  Tamijannsssa  Bibi 

Jang  Bahadur  v.  Jagat  Narain 

Siteswar  Roy  v.  Tepua  bornidn 

Anandrao  v.  Daulat 

Khurshid  B?gam  v.  Abdul  Rashid 

Guduthuru  Thimmappa  v.  Baiakrislma  Mudaliar     . . 

Barati  v.  Surit 

Mahammad  Raza  Sahab  Belgami  v.  Sadasiva  Rao    . . 
GauraTelin  v.  Shriram  Bhoyer 
Ayiswaryaiiandaji  Saheb  v.  Sivvaji  Raja  Saheb 

Sripati  Dutta  v.  Bibhuti  Bhusan  Dutta 
Commissioner  of  Income  Tax,  Madras  v.  Messrs,  King 
&  Partrige 

Stisil  Chandra  Guha  v.  Gouri  Sundari  Devi 
Relu  Mai  v.  Ahumad 
Dhana  Mohammad  v.  NasLulla  Molla 
Lachhman  Singh  v.  Ram  Das 
Dost  Muhammad  v.  Kadar  Batohu 
Faziar  Rahman  v.  Abdul  Hamad 
Bangahi  Badan  Haldar  v.  Ratan 
Manepalli  Satanarayanamurthi  v.  Thommandra  Eri 
kalappa 

Gopal  Chandra  Das  v.  Satya  Bhanu  Ghoshal 
Allah  Bakhsk  v.  Municipal  Committee,  Rohtak 
Veeranan  Ambalam  v,  Ayyachi  Ambalam 


Addepalli 
Ramiah 


Venkata    Garunadha   v.  Akella  Kesava 


Seetharama  Naidu  v  Govindasami  Chettiar 
Nidavolu  Atchutam  v.  Ratnaji 

Narain  Das  v.  Saraj  Din 

[swor  Sant  v.  Torendra  Nath  Kuila 

EJhagat  Singh  v.  Mathra 

Umasasi  Debi  v,  Akrur  Chandra  Mazumdar 

Arshad  Ali  v.  Zorawar  Singh 

Kuthalinga  Mudaliar  v.  Shanmuga  Mudaliar 

Kala  Khan  v.  Nathu  Khan 
Puran  Chand  v.  Emperor 
Q.  I,  P,  Railway  v.  Kunj  Behari  Lai 


24  A.  L.  J.  327;  27  Or.  L.  J.  377;  A.  I.  R.  1926 

All.  297. 

30  C  W  N.  IGfi:  27  Cr.  L.  J.  378. 
27  Or.  L.  J.  380. 
42  C.  L.  J.  551;  A.  I.  R.  1926  Cal.  174;  27  Cr.  L, 

J.  382. 

27  Cr.  L  J.  382:  A.  I.  R.  1926  Lah.  256. 
27  Cr.  L.  J  383;  A.  I.  R.   1926  All.  2)8. 
27  Cr.  L.  J.  381. 

*  Calcutta  High  Court. 

24  A.  L.  J  319;  A.  I.  R.  1926  All.  286. 
A.  I.  R.  1926  Lah.  230. 

23  L.  W.  520. 

A.  I.  R   1928  Cal.  592. 

4  Pat.  683,  7  P.  L.  T.  333;   A.  I.  R.   1926  Pat. 

209. 

"•Calcutta  High  Court, 
A.  I.  R  1926  Oudh  309. 
AIR.  1026  Cal  679 
A.  I.  R.  1926  Oudh  318. 
A.  I.  R.  1926  Cal.  580 

22  N.  L.  R   37;  A    I.  R.  1926  Nag.  274. 
9  N.  L  J.  11;  A  I.  R     1926  Nag.  231. 

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

A.  I.  K.    1920  Nag  277. 

49  M.  49;  A  I   R.  1926  Mad.  297. 
A.  I.  R.  192fi  Nag.  265 

A.  1.  R.  1926  Mad.  84;  49  M.  L.  J.   568;   49  M. 

110. 
53  C,  319;  A.  I.  R,  1926  Cal.  593. 

50  M,  L,  J.  176;  49  M,  296;  A,  I,  R    1926  Mad. 
368. 

*  Calcutta  High  Court 

7  L  17;   A  I.  R.  1^26  Lull.  183. 
A.  I.  R.  11)26  Cal.  637. 

*  Lahore  High  Court. 

23  L.  W.  240;  A  I  R.  1926  Mad.  466. 
^Calcutta  High  Court, 

*  Calcutta  High  Court. 

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

282;  A.  I.  R  1926  Mad.  410. 
A.  I.  R.  1926  Cal.  634. 
A.  I.  R.  1926  Lah.  223. 

22  L.  W.  772;  (1925)  M.  W.  N.  857;  49  M.  L,  J. 
791;  A,  I.R.  1926  Mad.  168. 

50  M.  L.  J.  54;  23  L.  \V.  314;  (1926)  M.  W  N, 
149;  A.I.  R  1926  Mad  417. 

23  L.  W.  149;  (1926)  M.  W.  N.  162;  A.  I.  R  1926 
Mad.  352. 

23  L  \V.  193;  50  M.  L.  J.  208;  (1926)  M.  W  N. 

258;  49  M.  211;  A.  I.  R.  1926  Mad.  323. 
A  I.  R.  1926  Lah.  238. 
42  O.  L  J.  560;  A.  I.  R  1926  Cal.  163. 
"Lahore  High  Court. 
30  n  W.  N.  160;  A.  I.  H.  1926  Cal.  542;  53  C. 

297. 

8  L.  L  J.  60, 
50  M.  T,  J.  234;  23  L.  W.  S73;  (1926)  M.  W,  N, 

274;  A.  1.  R  1926  Mad,  464. 
A  I  R.  1926  Lah.  229. 
"Lahore  High  Court. 
A.  1,  R,  1926  All  228, 


INDIAN  OASES. 


[1M6 


094 
995 
1001 
1006 
1007 
1003 

1012 
1013 
1015 
1016 
1017 
1019 
1021 
1027 
1028 
1030 
1031 
1034 
1045 
1046 
1046 
1047 
1051 

1053 
1055 


Ghiranji  Lai  v.  Shib  Lai  .  • 

Baldeo  Kurmi  v.  Kashi  Chamar 

\V.  &  T.  Avery  Ld.  v.  Kessoram  Poddar 

Lakshmi  Chand  v.  Mukta  Parshad 

East  Indian  Railway  v.  Firm  Baldeo  Gutain 

Indian  Vacuum  Brake  Co.  Ltd.  v.  E.  S.  Luard 

Singh  Ram  v.  Kala 

Raghubir  Singh  v.  Nathu  Mai 

Firm  Budhu  Mai-Parma  Nand  v.  Gokal  Ohand    ... 

Lalchand  Deomal,  In  re  ... 

Jai  Narain  v.  Jafar  Beg 

Municipality  of  Tando  Adam  v,  Khair  Mahomed  „. 

Alagirisami  Pillai  v.  Lakshnianan  Chetty 

Bhagwati  Dayal  v.  Dhan  Kunwar 

Ramu  Chetty  v.  Panchammal 

Ram  Badan  Upadhiya  v.  Sankatha  Misra 

Ramdhani  Muchi  v.  Khakshardas  Tati 

Jasoda  Koer  v.  Janak  Missir 

Venkatarama  Aiyar  v.  Soundaram  Aiyar 

Ramaswami  Aiyangar  v.  T.   Raghava  Aiyangar 

Khem  Karan  Das  v.  Baldeo  Singh 

Bhunjanga  Rao  v.  Periyathambi  Goundan 

Rathan  Singh  v.  Commissioner  of  Income  Tax,  Madras 

Kesaralu  Naicker  v.  Corporation  of  Madras          •-• 
Pooranalingam  Servai  v.  Veerayi 


A.  I.  R.  1926  Lah.  242. 

24  A.  L.  J.  337;  A.  I.  R.  1926  All.  312. 

30  C.  W.  N.  152;  A.  I.  R.  1926  Cal.  481. 

8  L.  L.  J.  67. 

'Allahabad  High  Court. 

42  0.  L.  J.  543;  A.  I.  R.  1926  Cal.  152;  53  0. 

306. 

8  L.  L.  J.  39;  A.  L  R.  1926  Lah.  244;  7  L.  173. 
*Allahabad  High  Court. 
8  L.  L  J.  3;  7  L.  113. 
A.  I.  R.  1925  Sind  259. 
24  A.  L.  J.  355. 
A.  I.  R.  1925  Sind  260. 
50  M.  L.  J.  79;  A.  I.  R.  1926  Mad.  371. 
24  A.  L.  J.  331;  A.  I.  R.  1926  All.  3J1. 
(1926)  M.  W.  N.  45;  A.  I.  R.  1926  Mad.  402. 
'Allahabad  High  Court. 
A.  I.  R.  1926  Oal.  677. 
4  Pat.  394,  A.  I  R.  1925  Pat.  787. 
(1926)  M.  W.  N.  48. 
(1926)  M.  W.  N.  118. 
A.  I.  R.  1926  All.  282. 
'Madras  High  Court. 
50  M.  L.  J.  157;  23  L.  W.  267;  A.  I.  R.  1926 

Mad.  462. 
23  L.  W.  233;  50  M.  L.  J.  301;  A.I.  R.  1926 

Mad.  38L 
22  L.  W.  782;  (1926)  M.  W.  N.  114;  A.  I.  R. 

1926  Mad.  186. 


TABLE 


OF 


Cases    Applied,    Approved,    Considered,    Disapproved, 

Dissented  from,  Distinguished,  Explained,  Followed, 

Not  Followed,  Overruled  and  Relied  upon  In 

Volume  92  of  Indian  Cases,  1926. 


Page. 

Abdul  Hakim  Khan  Chaudhuri  v.  Elahi  Baksha 
Saha,85Ind.  Cas.  103;  52  0. 43;  29  0.  W.  N. 
138;  A.  I.  R.  1025  Gal.  309  (Followed)  - ,  963 

Abdul  Rahman  Shah  v.  Shahana,  58  Ind.  Cas.  748; 
1 L.  339;  82  P.  W.  R.  1930;  1  L.  L.  J.  188 
(Relied  on)  ..  802 

Abid  Ali  v.  Arabunnissa,  1  O.   C.  75  (Followed)    265 
Aduram  Haldar  v.  Nakuleswar  Rai  Chowdhury, 

49  Ind  Cas.  137;  29  C  L.  J.  48  (Relied  on)      ...     514 
Ahmad  Raza  Khan  v.  Ram  Lai,  26  Ind.  Cas.  922; 

13  A.  L.  J.  204;  37  A.  203  (Relied  on)  ...       99 

Aizunnissa  Khatoon  v.  Kariiiumnisaa  Khatoon, 
23  C.  130;  12  Ind.  Dec.  (N.  s )  87  (Dissented 
from)  ...  82 

Alice  Qeorgina  Skinner  v.  Mukarram  Ali  Khan, 
92  Ind.  Cas.  330;  A.I  R.  1925  All.  77;  L.  R. 
5  A.  607  Civ.  (Not  followed)  . .  566 

Anantarama  Aiyar  v.  Yusuf  ji  Oomer  Sahib,  36 
Ind.  Cas.  903;  31  M.  L.  J,  133;  (1916)  2  M.  W, 
N.  236  (Relied upon)  ...  5 

Andukuri  Venkatarama  Das  v.  Pachigolla  Gavar- 
raju,  70  Ind.  Cas.  677;  43  M.  L.  J.  153  at  p.  156; 
(1922)  M.  W.  N.  305;  16  L.  W.  228;  A.  I.  R. 
1922  Mad.  173;  31  M.  L.  T.  154  (Distinguished)  472 
Arumugam  Chetty  v.  Muthu  Koundan,  52  Ind. 
Cas.  525;  42  M.  711;  9  L.  W.  565;  (1910)  M.  W. 
N.  409;  37  M.  L.  J.  166;  26  M.  L.  T.  96  (Relied 
on)  . .  85 

Arunachalam  Chettiar  v.  Rajeswara  Setupati,  71 
Ind.  Cas.  257;  15  L.  W.  63;  (1921)  M.  W.  N. 
873;  30  M.  L.  T.  84;  42  M.  L.  J.  74;  A.  L  R. 
1922  Mad.  55  (Distinguished)  ...  354 

Arura  v.  Bur  Singh,  84  Ind.  Ca§.  67;  5  L.  371;  A. 

I.,R.  1925  Lah.  31  (Relied  on)  . .     260 

Asutosh  Goswami  v.  Upendra  Prosad  Mitra,  38 
Ind.  Oas.  17;  21  C.  W.  N.  564;  24  C.  L.  J.  467 
(Relied  on)  ...  960 

Attra  v.  Mangal  Singh,  65  Ind.  Cas.  264;  2  L. 
300;  4  L.  L.  J.  1;  27  P.  L.  R.  1922;  A.  I.  R. 
1922  Lah.  43  (Followed)  762,  791 

Aulia  Khan  v.  Kanshi  Ram,  17  Ind.  Cas.  677;  45 
P.  R.  1£L3;  25  P.  W.  R.  1913;  145  P.  L.  R.  1913 
(Not  followed)  ...  762 

AutHikesavaloo  Naicker  v.  Shah  Abdulla,  29  Ind. 
Oas.  62;  2  L.  W.  479;  (1915)  M.  W.  N.  337 
(Relied  on)  . .  405 

Ayisa  Umma  T.  Puthiyadurayil  Kumna  Chum- 
kandi  Abdulla,  76  Ind.  Cas.  126;  (1923;  M.  W. 
N.  670:  A.  I.  R.  1924  Mad.  178;  19  L.  W.  613 
(Relied  on)  ...  782 

B 

Badcock  v.Hunt,  (1889)  22  Q.  B.  D,  145;  58  L.  J. 

.  Q,  B.  134;  60  L.  T.  314;  37  W.  R.  205;  53  J.  P. 
340  (Explained and  distinguished)  ...  361 

Bai  Balagavri  v.  Motilal  Ghelabai,  72  Ind.  Cas. 
224;  47  B.  523;  25  Bom.  L.  R.  199;  A.  I.  R,  1923 
Bom,  247  (Distinguished)  ...  785 


B- — contd. 


Page, 


Bai  Divvali  v.  Umedbhai  Bhulabhai  Patel,  36  Ind. 

Cas.   564;  40    B.    614;    18  Bom.     L.  R.   773 

(Relied  on) 
Bai  Somi  v.  Chokshi  Ishvardas  Mangalaas,  19  B. 

245;  10  Ind.  Dec.  (N.  s )  166  (Relied  on) 
Balakrishna  Aiyar  v.  Muthuswami  Aiyar,  3  Ind. 

Cas.  878;  32  M.  271;  5  M.  L.  T.  145;  19  M.  L.  J. 

70  (Distinguished) 
Balkaran  Upadhya  v.  Gaya  Din  Kalwar,  24  Ind. 

Cas.  255;  36  A.  370;  12  A.  L.  J.  635  (Distinguish- 
ed) 
Balkishen  Das  v.   Bedmati  Koer,  20   C.   388;   10 

Ind.  Doc.  (N.  s.)  263  (Relied  on) 
Balwant  Singh  v.  Rev.  Rockwell  Clancy,  14  Ind. 

Cas.  629;  34  A.  296;   (1912)  M.   W.  N.  462;  11 

M.  L.  T.  344;  9  A.  L.  J.  509;  15  C.  L.  J.  475; 

16  C.  W.  N.  577;  23  M.  L.  J.  18;  14  Bom.  L.  R. 

422;  39  I.  A.  109  (P.  C.)  (Distinguished)         524 
Bapu  Ammal  v.  Govinda  Padiyachi,   7  M.  L.  J. 

261  (Followed) 
Barada  Kinkar   Chowdhury  v.  Nabin  Chandra 

Datta,  4  Ind.  Cas.  408;  11  C.  L.  J.  83;  14  C.  W. 

N.  465  (Followed) 
Bavah  Meah  Saib  v.  Khajee  Meah  Saib,  4  M.  H. 

C.  R.  21S  (Relied  on) 
Bepin  Behari  Saha  v.  Abdul  Barik,  35  Ind.  Cas. 

613;  44  C.  950;  21  C.  W.  N.  30;  24  C.   L.  J.  446 

(Relied  on) 
Bhagwan  Sahai  r.  Narsingh  8ahai,  3  Ind.  Cas. 

615;  31  A.  612;  6  A.  L.  J.  871  (Relied  on) 
Bhagwat  Prasad  Tewari  v.  Muhammad  Shibli,  66 

Ind.  Cas.  892;  20  A.  L.  J.  270;  A.  I.  R.  1922  All. 

110  (Relied  upon)  ...     493 

Bhaishankar  Nanabhai  v.  Municipal  Corporation 

of  Bombay,  31  B.  604;  9  Bom.  L.  R.  417  (Fol- 
lowed) ...    790 
Birendra  Ghose  v.  Em-poror,  7  Ind.  Cas.  359;  37 

C.  467;  14  C.   W.  N.   1114;   11  Cr.  L.  J.  453 

(Relied,  upon)  ...    419 

Bisheshar  Singh  v.  Ram  Daur  Singh,  A.  W.  N. 

(1887)  302  (Followed)  ...    373 

Bishun  Prashad  Pathak  v.  Sashi  Bhusan  Misra, 

73  Ind.  Cas.  294;  A.  I.  R.  1923  Pat.  133;  2  Pat. 

L.  R.  17  (Distinguished)  ...  723 

Bomadevara  Naganna  Naidu  Bahadur  v.  Ravi 

Venkatapayya,  76  Ind.  Cas.  594;  46  M.  895; 

(1923)  M.  W.  N.  554;  21  A.  L.  J.  726;  A.  L  R. 

1923  (P.  0.)  167;  33  M.  L.  T.  262;  45  M.  L.  J. 

657;  25  Bom.  L.  R.  1290;  18  L.  W.  913;  28  C.  W. 

N.  568;  39  C.  L.  J.  312;  50  I.  A.  301  (P.  C.) 

(Distinguished)  ...  352 

Brij  Indar  Singh  v.  Kanshi  Ram,  42  Ind.  Cas.  43; 

45  0.  94  at  p.  106;  33  M.  L.  J.  486;  22  M.  L.  T. 

362;  6  L.  W.  592;  126  P.  W.  R.  1917;  15  A.  L. 

J.  777;  19  Bom.  L.  R.  866;  3  P.  L.  W.  313;  26 

C.  L.  J.  572;  104  P.  R.  1917;  (1917)  M.  W.  N. 

811;  22  C.  W.  N.  169;  127  P.  L.  R.  1917;  44  I.  A. 

218  (P.  0.)  (Relied  on)  ...  1031 


640 
251 


364 


330 
709 


720 
373 


782 

915 


802 
672 


INDIAN  OASfcS. 


[1926 


~  conoid. 


Page. 


British  &  Beningtons  Limited  v.  N.  W.  Cachar 
Tea  Co.  Ltd.,  (1923)  A.  C.  48;  92  L.  J.  K.  B.  02; 
128  L.  T.  422;  28  Com.  Cas.  265  (Followed)  .  .  002 

Brojender  Ooomar  Roy,  In  re,  B.  L.  R.  Sup.  Vol. 
728;  7  W.  R.  520  (Followed)  . .  1031 

Brojeudro  Goomar  Roy  v.  Madhub  Chunder 
Ghose,  8  C.  343;  4  lad.  Dec.  (N.  s.)  219  (Relied 
on)  ...  792 


Central  Bank  of  India  v.  Nadirshaha  Mehta,  79 
Iiid.  Cas.  445;  A.  I.  R.  1924  Sind  13  (Relied 
upon)  .  667 

Champsey  Dossa  v.  Gordhandas  Kessowji,  40 
Ind.  Cas.  805;  19  Bom.  L.  R  381  (Followed)  .  .  112 

Ghandan  Singh  v.  Laxman,  90  Ind.  Cas.  949,  21 
N.  L.  R.  98;  A.  I.  R.  1925  Nag.  438  (Distinguish- 
ed) .  785 

Chhajju  Ram  v.  Neki,  72  Ind.  Cas.  .566;  49  I.  A. 
144;  30  M.  L.  T.  295;  20  O  W.  N.  697;  41  P.  L. 
R.  (P.  C  )  1922;  3  P.  L.  T.  4.33;  A.  I.  R  1922 
P.  C,  112;  16  L.  W.  37;  17  P.  W.  R.  1922;  3  L 
127;  43  M,  L.  J  332;  24  Bom.  L  R.  1238;  4  U. 
P.  L.  R.  (P.  C.)  99;  36  C.  L.  J.  459  (P.  C.)  (Fol- 
lowed) ...  1013 

Chhajmal  Das  v.  Sirya,  A.  W.    N.   (1906)   251;  3 

A.  L.  J.  625(iYot/oMoW,)  .  .        3 
Chundeechurn  Dutt  v.  Eduljee  Cowasjee  Bijnee, 

8  C.  678;  11  C.  L.  R.  225;  4  Ind.  Dec.  (N.  s.) 
437  (Relied  on)  ...  633 

Chunilal  Fulchand  v.  Mangaldas  Govardhandas, 
16  B.  592;  8  Ind.  Dec.  (N.  s  )  874  (Followed)  .  465 

Clayton's  case,  (1816)  15  R  R.  161;  1  Mer.  572;  35 
E.  -R.  781  (Distinguished)  .  047 

Committee  of  Management  of  Hyderabad  v. 
Ramchand  Gownkiram,  87  Ind  'Cas.  258;  16 
S.  L.  R.  98  at  p.  101;  A.  I.  R.  1923  Sind  1  (Ex- 
plained and  distinguished^  .  .  361 

Constable  v.  Nicholson,  (1863)  32  L.  J.  C.  P.  240 
at  p.  244;  14  C.  B.  (N.  s )  230;  11  W.  R.  698; 
143  E.  R.  434;  135  R.  R.  672  (Relied  on)  ...  465 

Corea  v.  Appuhamy,  (1912)  A.  C.  230;  81  L,  J. 
P  C.  151;  105  L.  T.  836.  (Relied  on)  .  .  99 

Cory  Brothers  and  Company  Limited  v.  The 
Owners  of  the  Turkish  Steamship  "Mecca", 
(1897)  A.  C.  286;  66  L.  J.  P.  0.  86;  76  L,  T. 
579;  45  W.  R,  667  (Followed)  ...  947 

Cotton  v.  Vogan,  (1896j  A.  C.  457;  65  L.  J.  Q. 

B.  486;  74  L,  T,  591;  61  J.  P.  36.    (Followed)    610 

D 

Davood  Mohideen  Rowfcher  v.  Jayarama  Iyer,  62 

Ind,  Cas.  284;  44  M.  937;  40  M.  L.  J.  38;   13 

L.  W.  281;  (1921)  M.  W.  N.  43;  29  M.  L.  T. 

78.    (Followed)  ...      20 

Devasigamony  v.  Sethuratna  Iyer,  87  Ind.  Caa. 

363;  A.  I  R.  1925  Mad.  1034.    (Followed)     . .     100 
Devata  Sri   Ramamurthi   v.  Venkata  Sitarama 

Chandra  Row,  22  Ind.  Cas.  279;  (1914)  M.  VV. 

N.  95.    (Relied  on)  ...  20 

Dhulabhai  Dabhai  v.  Lala  Dhula,  64  Ind.   Cas. 

115;  46  B.  28;  23  Bom.  L.  R.  777;  A.  1  R.  1922 

Bom.  137.    (Relied  on)  ...    663 

Dinobundhoo  Nundee  v.  Keshub  Chunder  Ghose, 

3  W.  R.  Mis.  25.    (Relied  on)  ...    792 

Doraisami  v.  Chidambaram  Pillai,  75  Ind.  Cas. 

46;  47  M.  63;  45  M.  L.  J.  413;   18  L.  W.  577; 

33  M.  L.  T,  25;  (1923)  M.  W.  Nf  817;  A,  L  R. 

d,  130,    (Not  followed)  ...    308 


D — concld. 

Page 
Drobomoyi  Gupta  v.    Davis,  14  C.   323;  7   Ind. 

D^o    (N.  s  )  214.     (Distinguished)  963 

Durbar  Ivlutehar  v.  Khachar  Harsur,  32  B.   318; 

1  )  Born    L.  R.  297.     (Distinguished)  .     787 

Ours*  i   Spanker  v.   Ram  Pnisad,  14  C.   P.  L.  R. 
151  at  p.  152.     (Relied  on)  ...     305 


Ea^t  Indian   Railway  Company   v.  Fazal  Elahi, 

85  lad  Cas.  474;  L.  R.  6   A/ 59  Civ.;   A  I.  R. 

192.5  All.  273;  47  A.   136     (Not  followed) 
v      Nathumal 

Bohari  Lai,  39  Tnd.  Cas.  130;   39  A.  418;  15   A. 

L.  J.  321      (Not  followed) 
Eastern  Shipping  Co.  v.  (Juah  Beng  Kce,  (1924) 

A.  C.  177;   33  L  J.  P.  0.  72;   130  L.  T.  462;  40 

T.  L  R   109.     (Relied  on) 
Emparor  v.  Allahdad  Khan,  19   Ind.  Cas.  332;  11 

A    L    J.    442;  14  Cr.    L.  J.  236;    35   A.    3)8. 

(Followed) 
v.  Anappa  Bharamg'inda,  9  Bom.   L.  R 

347;  5  Cr..  L  J.  32.1     (Relied  upon) 

--  v.  Balaram  Da*,   71   Ind.    Cas    685;    19 


C  35S;  A.  I  R.  1922  Cal.  382;    24  Cr.  L  J.  221. 
upon) 

v.  Ganga  Prasad,  29  A,  68  i;  4  A  T;  J. 
005;  G  Cr.  L.  J.  107;  A.  \V.  N.  (1907;  233. 
(Relied  071) 

v.  Satyendra  Nath  Roy,    57  Ind.   Cas. 

277;  1  P.  L.  T.  379;   (1920)  Pat.  225;  21   Cr.   L. 
J.  613.    (Dissented  from) 


603 


603 


715 


441 
419 


167 


429 


896 


Fazal  v.  Mangaldas,  66  Ind.  Cas.  726;  46  B.  499 
at  p.  502;  23  Born  L  R.  1U4;  A.  I.  R.  1922 
Bom.  303.  (Followed}  ...  9 

Firm  Balraru  Daes-Fakir  Chand  v.  Great  Indian 
Peninsula  Railway  Company,  88  Ind.  Caa. 
559;  L>3  A.  L.  J.  615;  L.  R.  6  A.  310  Civ.,  A.  1. 
R.  1923  All.  562;  47  A.  724.  (Followed)  ...  1007 

Frost  v.  Knight,  (1672)  7  Ex.  Ill;  41  L.  J.  Ex. 
78;  26  L.  T.  77;  20  W.  R.  471.  (Followed)  ...  333 


Gadi  Neelaveni  v.  Mavappareddi  Gari  Narayana 
Reddi,  53  Ind.  Cas.  8i7;  43  M.  94;  37  M.  L.  J. 
599;  26  M.  L.  T.  377;  10  L.  W.  603;  (1920)  M. 
W.  N.  19.  (Relied  on)  ^  ...  615 

Gajadhar  Pan.de  v.  Jadubir  Pande,  85  Ind.  ,Cas. 
31;  22  A.  L.  J.  980;  L.  R.  5  A.  780  Civ.;  A.  1. 
R.  1925  All.  180;  47  A.  122.  (Distinguished)  ...  316 

Ganapathi  Brahmayya  v  Kurella  Kamiab,  54 
Ind.  Cas.  45;  43  M.  141;  10  L.  W.  476;  38  M. 
L.  J.  123.  (Doubted)  ...  112 

Gandla  Pedda  Naganna  v.  Sivanappa,  28  Ind. 
Cas.  232;  33  M  1162  at  p.  1L70;  16  M.  L.  T. 
310;  27  M.  L.  J.  520.  (Followed)  ...  982 

Ganga  Ram  v.  Natha  Singh,  8J  Ind.  Cas.  820; 
5  L.  425;  A.  I.  R.  1924  P.  0.  183;  22  A.  L.  J. 
688;  47  M.  L.  J.  64;  20  L.  W.  101;  26  Bom.  L. 
R  750;  10  O.  &  A.  L.  R.  771;  35  M.  L  T.  141; 
(1924)  M.  W.  N.  599;  2  Pat.  L.  K.  257;  11  0.  L, 
J.  534;  6  L.  L.  J.  551;  51 1.  A.  377;  1  L.  C. 
446;  L.  R.  5  A.  (P.  C.)  133;  6  P.  L.  T.  97:  1 
0,  W.  N.  469;  29  C.  W.  N.  558  (P.  C.).  (Fol- 
lowed) ...  762 
Garuda  Sanyasayya  v.  Nerella  Muthemnia,  48 
lad.  Cas.  740;  9  L.  W.  1;  35  M.  L.  J.  881;  25 
M,L,  T,  89,  (DistinguMtd)  „.  950 


92] 


TABLE  OF  dASBS  ALLIED  Ac. 


27 


— amold. 


Gauri  Shanker  Singh  v  Sheo  Nandan  Misra,  78 
Ind.  Gas.  911;  46  A.  384;  22  A.  L.  J.  369;  A.  I. 
R.  1924  All.  543;  L.  R.  5  A.  306  Civ.  (Fol- 
lowed) ...  85 

Ghulam  Jilani  v.  Tmdad  Husam,  4  A.  357;  A. 
W,  N.  (1882)  67;  2  Ind.  Dec.  (N.  s.)  979.  (Not 
followed)  ~  313 

Ghulla  Singh  v.  Sohan  Singh,  69  Ind.  Gas.  818; 
3  L.  280;  A.  I.  R.  1922  Lah.  219;  4  L.  L.  J. 
500.  (Relied  upon)  ...  966 

Glegg  v.  Bromley,  (1912)  3  K.  B.  474;  81  L.  J. 
K.  B.  1081;  106  L.  T.  825.  (Followed]  ...  973 

Glyn  Mills  Co.  v.  East  and  West  India  Dock 
Co.,  (1882)  7  A.  C.  591  at  p.  614;  52  L.  J.  Q.  B. 
146;  47  L.  T.  309;  31  W.  R.  201.  (Relied 
upon)  ...  206 

Gobind  Das  v.  Rup  Kishore,  77  Ind  Gas.  409;  4 
L  367;  6  L.  L.  J.  25;  A.  I.  R.  1924  Lah.  65. 
(Followed)  .  566 

Gomathi  Ammal  v.  Kupputhayi  Aminal,  14  M. 
L.  J.  175.  (Followed)  ..  335 

Gopal  Rai  Phul  Chand  v.  G.  T.  P  Railway 
Co.,  82  Ind.  Gas.  313;  16  A.  837;  A.  I.  R.  1924 
All  621;  L.  R.  5  A.  575  Civ.  (Not  followed)  603 

Gopal  Singh  v.  Bhaga,  69  Ind.  Cas.  305;  A.  1. 
R.  1924  hah  206.  (Construed)  .  966 

Gopala  Krishnier  v.  Uanapathy  Aiyar,  58  Ind. 
Gas.  121;  12  L.  W.  772  at  p.  775;  (1920)  M.  W. 
N.  478.  (Distinguished)  ...  950 

G.  I.  P.  Railway  Go.  v.  Firm  Bhola  Nath-Debi 
Das,  70  Ind.  Gas.  854;  45  A.  56;  A.  I.  R.  1923 
All,  79  (Not  followed)  .,  603 

Grish  Ghunder  Lahiri  v.  Shashi  Shikhareswar 
Roy,  27  C,  951  at  p.  967;  27  I.  A.  110;  4  G, 
W.  N.  631;  10  M.  L.  J.  356;  2  Bom.  L,  R.  709; 
7  Sar.  P.  G.  J.  687;  14  Ind.  Dec.  (N.  s.)  622 
(P.  C).  (Relied on}  ...  139 

Gulaari  Lai  v.  Latif  Husam,  35  Ind.  Gas.  27;  38 
A.  181;  14  A.  L.  J.  84.  (Followed)  ..  282 

Gurdit  Singh  v.  Charan  Das,  72  Ind.  Cas.  797; 
A.  I.  R.  1922  Lah.  415.  (Relied  upon)  . .  966 


H 


Hakim  Lai  v.  Mooshahar  Sahu,  34  G.  999  at  p. 

1018;  11  0.  W.  N.  889;  6  G.  L.  J.  410.    (Relied 

upon)  •>•        5 

Hamid  Husain  v.  Kubra  Begam,   44  Ind.  Cas 

728;  44  A.  332;  16  A.  L.  J.  132.    (Followed)    913 
Hanuman   Kamat  v.    Hanuman    Mandur,  19  C. 

123;  18  I.  A.  158;  6  Sar.  P.  G.  J.  91;  9  Ind.  Dec. 

(N.  s.)  527  (P.  0.).    (Followed)  . .     787 

Har  Prasad  v.  Tajammul  Husain,  44  Ind,  Cas. 

720;  16  A.  L.  J.  239.    (Not  followed)  ...     995 

Hari  Ram  v.  Indraj,  69  Ind    Cas.  167;  44  A.  730; 

20  A.  L.  J.  631;  A.  I.  R.  1922  All.  377;  9  0.  & 

A.  L.  R.  123.    (Relied  on)  ...    260 

Harvey  v.  Shelton,  (1844)  7  Beav.  455;  49  E.  R. 

1141;  13  L.  J.  Ch.  466;  64  R.  R.  116.    (Relied 

on)  ..    792 

Hasan  Premji  v.  Jerbai,  0.  0.  J.  Appeal  No.  41 

of  1920  decided  by  Macleod,   C.  J.  and  Shah, 

J.  on  December  17,  1920  (unrep.).    (Followed}    225 
Hemanta  Kumari  Debi  v.  Midnapore    fcemindari 

Co ,  53  Ind.  Gas.  534;  47   C.  485;    37  M.  L.  J. 

525    17  A.  L.  J.  1117:  24  G.  W.  N.  177;  (1920) 

M.  W.  N.  66;  27  M.-L.  T.  42;   11  L.  W.   301; 

46  I,  A.  240;  22  Bom,  L,  R,  488  (P,  0,),   (Relied 
,ri  "     553 


H  — oenald. 


Page. 


Hirad:  H.  '  :  ».  v.  Oadigi  Muddappa,  6  M.  H.  C. 
R.  I1--'  .'.'  on)  ..  106 

Hnin  Yin  v.  Than  Pe,  44  Ind  Cas.  337;  9  L.  B 
R.  92;  19  Cr.  L.  J.  321;  11  Bur.  L.  T.  58. 
(Relied  upon)  ...  743 

Hunoomanpersaud  Panday  v.  Babooee  Munraj 
Koonweree,  G  M.  I.  A.  393;  18  W.  R.  81vr 
Sevestre  253n;  2  Suth.  P,  C.  J.  29;  1  Sar.  P.  0* 
J.  552;  19  E.  R.  147.  (Relied  on)  378,  827 

Husenuddin  Nurddiu  v.  Dulakshidas  Kesavlal 
77  Ind.  Gas.  474;  A.  I.  R.  1923  Bom.  299.  (Not 
followed)  _  566 

I 

Indramani  Dasi  v.  Surendra,  64  Ind.  Cas.  852- 
35  C.  L.  J.  61;  A.  I.  R.  1922  Gal.  35.  (Rdicd 
on)  ~.  497 

Irulappan  Scrvai  v.  Veerappan,  69  Ind.  Cas  918- 
42  M.  L.J.  113;  15  L.  W.  99;  (1922)  M  W  N 
67;  31  M.  L.  T.  71.  (Not  followed)  '  .  '.  975 

Ishrappa  Gaaap  Hsgde  v.  Krishna  Putta  Shankar 
Hegde,  67  lad.  Gas.  833;  24  Bom.  L  R.  428-  46 
B  1)25;  A.  I.  K.  1922  Horn.  413.  (Relied  071)'  ...  663 

Isuri  Prasad  Singh  v.  Umrao  Singh,  22  A.  234- 
A.  ^W.  N.  (1900;  46;  9  Ind.  Dec.  (N  s  j  1187*. 
(Relied  on)  '  tt<  439 

Iswar  Datt  Upadhiya  v.  Mahesh  Datt  Upadhiya 
89  Ind.  Gas  114;"2i  A.  L.  J.  862;  L.  R  6  A 
451  Civ.;  A.  I.  R.  1925  All.  747.  (Followed)  ..!  1 


Jadubir  v.  Gajadhar,  75  Ind.  Cas.  785;   21  A     L, 

J.  809;  A.  1   K.  1924  All.  169;  L.  R.  5  A.  53  Oiv. 

(Distinguished)  <t<  31(5 

Jagannath  v.  Dibbo,  1  Ind.  Cas.  818;  6  A  L  j* 

49  at  p.  51;  31  A.  53.  (Followed)  '  . .'  471 

Jagannath  Khan  v.  Bajrang  Das  Agarwala,  62 

Ind.  Gas.  97;  48  C.  61.  (Distinguished)  .  .  943 

Janoothassan  v.  ^lahamad  Ohuthu,  83  Ind  Cas 

425;  47  M.  877;   47  M.  L.    J.  356;  20  L.  W.'  677: 

A.  L  R.  1925  Mad.  155.    (Followed) 
Janoothassan  v.  Haharnad  Ohuthu,  82  Ind    Gas 

425;  47  M.  877;  47  M.  L.  J.356;  20  L.  W.  677-  A* 
I.  R.  1925  Mad.  155.    (Relied  on)  . .'    491, 

Javerbhai  Jorabhai  v.  Gordhan  Narsi,   28  Ind 
Cas.  442;  17  Bom.  L.  R.  259  at  pp.  265,  266;  39 

B.  358.     (Relied  on)  ...     640 
Jivan  Bhaga  v.  Hira  Bhaiji,  12  B.  363;    6    Ind 

Dec.  (N.  s,)  726.  (Distinguished)  ^  759 

Jivan  Bhaga  v.  Hira  Bhaiji,  12  B.  363;  6  Ind 

Dec.  (N.  s.)  726.  (Followed)  . .'  393 

Jogendra  Nath'  v.  Baladeb  Das,  35  C,  961;  12  C. 


491 


W.  N.  127;  6  C.  L.J,  735.    (Relied on)  ...      99 

Joshi  Sahib  Prakash  v.  Jhinguria,    78  Ind.  Cas 
416;  46  A.  144;  A.  I.  R.  1924  All.  446.    (Relied 

on)  ...  615 

Jumo  Allarakhio  v.  Emperor,  34  Ind.  Gas.  649- 

9  S.  L.  R.  223;  17  Cr.  L.  J.  233.  (Relied  upon)  419 
Jurugumilli  Brahmayya  v.  Chellaghali  Achiraju 

70  Ind.  Gas.  615;  45  M.  716;  (1922)  M.   W.  N 

280;  31  M.  L.  T.  91;    43  M.  L.  J.  221*;  A.  I.    R. 

1922  Mad.  373.  (Relied on)  ...  8H 

Jwala  Singh  v.  Teja  Singh,  71  Ind.  Cas.  801* 

A.  I.  R.  1924  Lah.  273.  (Not  followed)  .'  753 

Jyoti  Prakash  Nandi  v.  Mukti  Prakash  Nandi  81 

Ind.  Caa.  734;  51  0. 150;  A.  I  R.  1924  Oal,  485. 

(Relied  on)  Mf    49^ 


OASIS* 


[1926' 


Page. 
Kalliani  Amma  v.  Matathil  Veetil  Achuthan  Nair, 

53  Ind.  Gas.  239;  10  L.  W.  174;  (1919)  M.  W.  N. 

573;  37  M  L.  J.  309.    (Followed)  ..    415 

Kaiyan  Singh  v.  Raja,  3  Unreported  Decisions, 
'p.  343.    (Followed)  ...  1046 

Kamakshi  Achari   v.  Appavi  Pillai,   1  M.   H.  C. 

li.  448.    (Distinguished)  ...     968 

Kambam  Bali  Reddy  v.  Emperor,  22  Ind.   Gas. 

756;  37  M.  119;  15  Or.  L.  J.  180,    (Followed)    . .    851 
Kamruddin  Hyder  v.  M.  N.  Hitter,  89  Ind.  Gas. 
f>277;52    0.  342;  A.  L    R.  1925  Gal  735.    (Fol- 
lowed) ...    563 
Kaunuaami  Pillai  v.  Jii^a!-^.:.-.!'.::!.  46  Ind.  Gas. 

265;  41  M.  701  at  j-  ins,    Itflri    M.  W.  N.  497; 
.  24  M.  L.  T.  46;    8  L.  W.  145;   35  M.  L.    J.  27. 

(Not  followed)  ...    800 

Kannusami  Thonjirayan  v.  Muthusami  Pillai,  38 

Ind.  Gas.  194;  (1917)  M.  W.  N.  5;  5  L.   W.  250. 

(Relied  on)  . .     342 

Kanshi  Ram  v.  Sharf  Din,  66  Ind.  Gas.  161;  A.  I. 

R.  1922  Lah.  356.    (Followed)  ...    723 

Kanwar  Ranzor  Singh  v.  Chippal,  37  P.  R.  1900; 

P.  L.  R.  1900  p.  303.    (Followed)  ...    526 

Karim  Bakhsh  v.  Idu  Shah,  40  Ind.    Gas.  381;  4 

O.  L.  J.334.    (Distinguished)  ...     665 

Karim  Buksh  v.  Queen-Empress,   17  C.  574;  8 

Ind.  Dec.  (N.  e.)  922  (F.  B.).    (Relied  on)          ...    885 
Karean  Sadashiv  Patil  v.  Gatlu  Shivaji  Patil,  19 

Ind.  Gas.  442;  37  B.  320;    15  Bom,  L.  R.  227. 

(Followed)  ...     112 

Kartimbar  Pandrapandaram  v.  Audimula  Ponna- 

pundaram,  3  Ind.  Gas.  725;  33  M.  262;  6  M.  L. 

T.  261     (Followed)  ...    800 

Kedar  Nath  v.  Shanker  Lai,  78  Ind.  Gas.  934;  36    ' 

A.  303;  22  A.  L.  J.  185;  A.  I.  R.  1924  All.  514;  L. 

R.  5  A.  80  Oiv.    (Distinguished)  ...     553 

Khiarajmal  v/Daim,  32  C.  296;  9  0.  W.  N.  201; 

2  A.  L.  J.  71;    7  Bom.  L.  R.  1;  1  0.  L.  J.  584; 

,32  I.  A.  23;    8  Sar.  P.  0.  J.  734  (P.  C.).    (Folr 
.-lowed)  ..     832 

Khulna  Loan  Co.,  Ltd.  v.  Jnanendra  Nath  Bose, 

45,  Ind.  Gas.  436;  22  G,  W.  N.  145  (P.  O.).    (Fol- 
lowed) ...    847 

Khushalchand  v.  Nandram,  12  Ind.  Oas.  572;  13 
Bom.  L.  R.  977;  35  B.  516.  (Distinguished)  ...  803 

KonaThimma  Reddi  v.  Secretary  of  State  for 
India,  78  Ind.  Oas.  91;  47  M.  325;  19  L.  W.  59; 

46.  M.  L.    J.  60;  (1924)  M.    W.  N.  146;    A.  I.  R.- 
,,1924  Mad.  523.    (Followed)  ..    790 
Krishna  v.  Subbanna.  7  M.  564;  8  Ind.  Jur.  504;  2 

Ind.  Dec.  (N.  s.)  975.    (Followed)  ...    364 

Krishna  Mohun  Basak  v.  Kunjo  Behari  Basak,  9 

0.  L:R.  1.    (Relied  m)  ...    792 

Krishna  Variar  v.  Kunji  Torbanar,  3  M.  L.  J.  190. 

(Not  followed)  ...    373 

Krishnabai  v.>Manohar,  30  B.  593    at  p.  597;  8 

Boni.  L.  R.  671.    (Followed)  ...    785 

Kriihnaswamy  Naidu  v.  Chengalroya  Naidu,  76 

Ind.  Oas.  836;  47  M.  171;  18  L.  "W:  870;  45  M. 

-L.J.813;  33  M.  L.T.207;  A.  L  R.,1924  Mad, 

114.    f Relied  on)  ,.     615 

KrisbBftyyar  T.  Venkayyar,   6  M,J81;  2  Ind.  Dec. 

(N.  s.)  334.    (Relied on)  ...    770 

Kundan  Lai  v.  Jagan  Nath,  30  Ind.  Oas.  92;  37  A. 

649;  13  A.  L.  J.  908.    (Not  followed)  . .     947 

Kunhi  Amma   v.  Ammu   Amma,  16  Ind.  Gas. 
178;  36  ,M.  591;  (1912)  M.  W.  N.  1233:  24  M.  L. 

J.559.    (Relied  on)  ...    390 


Lachmi  Narain  v,  Nirotam  Das,  A.  W.  N.  (1906) 
272;  29  A.  69;  3  A.  L.  J.  688.  (Followed)  ..  3 

Lakshmindrathirtha  Swamiar  v.  Raghavendra 
Rao,  59  Ind.  Gas.  287;  43  M.  795  at  p.  798;  12 
L  W.  139;  39  M.  L.  J.  174;  (1920)  M.  W.  N. 
568;  28  M.  L.  T.  269.  (Followed)  ...  483 

Lai  Singh  v.  Emperor,  91  Ind.  Gas.  954;  5  L. 
396;  A.  I.  R.  1925  Lah.  19;  27  Cr.  L.  J.  170. 
(Distinguished)  . .  167 

Lallabhai  Vajeram  v.  Bai  M,. .',-.:, fcv.  ri.  18  B.  59; 
9  Ind.  Dec.  (N.  s.)  548.  Jt  .  ••  /  .  -.,  ...  802 

Lekh  Ram  v.  Ramji  Das,  57  Ind.  Gas.  215;  1 
L.  234  (Followed)  ..  624 

Lokasikhamani  Mudaliar  v.  Tliinpnroyn  Chettiar, 
38  Ind.  Oas.  415;  5  L.  W.  506,  ^101' '  M.  W.  N. 
420.  (Followed)  ...  556 

Lord  Rivers  v.  Adams,  (1878)  3  Ex.  D.  361;  48 
L.  J.  Ex.  47;  39  L.  T.  39;  27  W.  R.  381,  (Re- 
lied on)  ..  465 

Luckmee  Chund  v,  Zorawar  Mull,  8  M.  I.  A. 
291  at  p.  307;  1  W.  R.  P.  0.  35;  1  Suth.  P.  C. 
J.  425;  1  Sar.  P.  C.  J.  763;  19  E.  R.  511.  (Re- 
lied on)  *.  915 

Lutchmeeput  Singh  v.  Sadaulla  Nushyo,  9  0. 
698;  12  G.  L.  R.  382;  5  Shome  L.  R.  27;  4 
Ind.  Dec.  (N.  s.)  1115.  (Relied  on)  ^  465 

M 

Madderer,  In  re,  Three  Towns  Banking  Co.  v. 

Maddever,  (1884)  27  Ch.  D.  523;  53  L.  J.  Ch. 

998;  52  L.  T.  35;  33  W.  R.  286.  (Relied  on)  405 
Madhavrao  Waman  Soundalgekar  v.  Raghunath 

Venkatesh  Deshptnde,  74  Ind.  Gas.  362;   50  I. 

A.  255;  25  Bom.  L.  R.  1005;  (1923)  M.  W,  N. 

689;  A.  I.  R.  1923  P.  G.  205;   33  M,  L.  T.  389; 

47  B.  798;  28  G.  W.  N.  857;   20  L.  W.  248;  47 
.    M.  L.  J.  248  (P.  0.).    (Distinguished)  ...    247 

Mahomed  Ghouse  Sah  v.  Thimma  Setti,  1  Mysore 

L.  J.  90.    (Followed)  ...    112 

Majju  v.  Teja  Singh,  44  Ind.  Gas.  814;  29  P.  R. 
,    1918;  114   P.  W.  R.  1918;   118  P.   L.  R.   1918. 

(Disiinauished)  ...    297 

Manga  I    Naran  v.  Emperor,    87  Ind.  Gas.  424; 

49  B.  450;  27   Bom.   L.  R.   355;  A.  I.  R.  1925 

Bom.  268;  26  Cr.  L.  J.  968.  (Followed}  ...  851 
Manghi  Ram  v.  Firm  of  Ram  Saran  Das  Maman 

Chand,  26  Ind.  Oas.  415;   23  P.  R.  1915;   35  P. 

W.  R.  1915;   100  P.  L.   R.  1915.    (Distingui- 
shed) ...    674 
Manji  v.  Ghulam  Muhammad,  57  Ind.  Gas.  207; 

1  L.  249.    (Followed)  ..    297 
Manji  r.  Ghulam  Muhammad,  61  Ind.  Oas.  415; 

2  L.  73;  3  L.  L.  J.  75.    (Followed)  .    297 
Mannox  v.  Greener,  (1872)  14  Eq.  456  at  p.  462; 

27  L.  T.  408.  (Followed)  . .  516 

Mannu  v.  Tulshi,  64  Ind.  Gas.  958;  20  A.  L.  J. 

39;  A.I.  R.  1922  All.  33.  (Relied  upon)  ...  493. 
Manorath  Das  v.  Ambica  Kanta  Bose,  1  Ind.  Oas. 

57;  90.  L.J.  443;  13  C.  W.  N.  533.    (Relied 

on)  ..  770 

Mata  Din  v.  Ahmad  Ali,  24  Ind.  Cas.  874;  1  0. 

L.J.  263.  (Distinguished)  ...  665 

Mayer  Alderson  and  Burgesses  of  Southmolton 

v.  Attorney-General,  (1854)  5  H.  L.  0. 1  at  p. 

31;  10  E.  R.  796;  23  L.  J.  Oh.  567;  18  Jur.  435; 

101  R.R.I.  (Followed)  .»  515 

Mohammad  Abdullah  Khan  v.  Bank  Instalment 

Company  Ltd.,  2  Ind.  Cas.  379;  31  A.  495;  6  A, 

L.  J.  611,    (Distinguished)  ...    687 


TeL  92] 


TABLB  OF  OASES  APPLIBD  Ac. 


29 


M — ooncld. 

Page. 

Mohammad  Mondul  v.  Nafur  Mondul,  26  0.  820; 
3  0.  W.  N.  770;  13  Ind.  Deo.  (N.  s.)  1125. 
(Relied  on)  . .  827 

Moonshee  Buzloor  Ruheem  v.  Shumsunissa 
Begum,  11  M.  I.  A.  551;  8  W.  R.  P.  0,  3;  2 
Suth.  P.  C.  J.  59;  2  Sar.  P.  0.  J.  259;  20  E. 
R.  208.  (Followed)  ..  913 

Moti  Singh  v.  Maghar,  11  Ind.  Gas.  880;  22  P.  R. 
1912;  163  P.  W.  R.  1911;  244  P.  L.  R.  1911. 
(Followed)  ..  299 

Motilal  Pratabchand  v.  Surajmal  Joharmal,  30 

B.  167;  6  Bom.  L.  R.  1038.    (Explained)        ...    273 
Muhammad  Abdul  Gaflhir  Rowther  v.   Hamida 
Beevi  Animal,  52   Ind.  Cas.  505;    42  M.  661; 
(1919)  M.  W.  N.  484;  25  M.  L.  T.  242;  36  M. 
L.  J.  456.    (Distinguished)  ...    354 

Muhammad  Abdul  Majid  v.  Muhammad  Abdul 
Aziz,  19  A  155;  24  I.  A.  22;  7  Sar.  P.  C.  J. 
Ill;  9  Ind.  Dec.  (N.  s.)  103  (P.  0.).  (Followed)  314 
Muhammad  Habibullah  v.  Mushtaq  Husain,  37 
Ind.  Cas.  684;  14  A.  L.  J.  1183;  39  A.  95. 
(Relied  upon)  ...  5 

Muhammad  Mosam  Khan  v.  Bakhtawar,  70  P. 

R.  1895.     (Followed}  . .     526 

Muhammad  Sajjad  Ali    Khan    v.   Muhammad 
Ishaq  Khan,  54  Ind.  Gas  504;  42  A.   154;  1  U. 
P.  L.  R.  (A.)  168;   18  A.  L.  J.  83.     (Followed)  1027 
Mul  Chand  v.  Mukta  Prasad,  10  A.  83;  A.  W.  N. 
(1387)  287;  6  Ind.   Dec.   (N.  s.)  56.      (Distingu- 
ished) . .     803 
Muniappa  Naik  v.  Subramania  Ayyar,  18  M.  437; 
5  M.  L.  J.  60;   6  Ind.  Dec.  (N.  s.)  654.    (Fol- 
lowed)                                                              .  .    833 
Municipal  Committee,  Chiniot  v.  Bashi  Ram,  69 
Ind.  Cas.  895;  A.  I.  R.  1922  Lah.  170.    (Relied 
upon)                                                               ...    966 
Municipal  Committee  of  Delhi  v.  Devi  Sahai,  62 
P.  R.  1907;   105  P.  L.  R.   1908;  147   P.  W.  R. 
1907.    (Followed)                                             ...    765 
Muppavaraju    Venkata  Radha  Krishna    Rao  v. 
Venthurumilli  Venkatarao,  84   Ind.  Cas.  965; 
(1924)  M.  W.  N.  922;  47  M.  L.  J.  552;  20  L.  W. 
711;  35  M.  L.  T.  135;  A.  1.   R.  1925  Mad.  229; 
48  M.  L.  J.  713.    (Followed)                          ...  1045 
Muthaya  Shetti  v.  Kanthappa  Shetti,  45  Ind.  Cas. 
975;  (1918)  M.  W.  N.  334;  34  M.  L.  J.  431;  7 
L.  W.  482;  23  M,  L.  T.  291.    (Relied  on)       ...    342 
Muthukaruppan  Samban  v.  Muthu  Samban,  25 
Ind.  Cas.  772;  38  M.  1158;   1  L.  W.  754;  16  M. 
L.  T.  344;  (1914)  M.  W.  N.  768;  27  M.  L.  J. 
497.    (Relied  on)                                              ..      478 
Muthusami  Chetty  v.  Chinnammal,  24  Ind.  Cas. 
320;  26  M.  L.  J.  517.    (Followed)                    ...    504 

N 

Nabu  Bepari  v.  Sheikh  Mahomed,  5  C.  W.  N. 

207.    (Distinguished)  ..      98 

Nachimuthu  Gnetty  v.  Andiappa  Pillai,  42  Ind. 

Cas,  708;  6  L.  W.  630;  (1917)  M.  W.  N.  778. 

(Followed)  ...    626 

Nagappa  Pillai  v.  Arunachalam  Chetty,  85  Ind. 

Qas.  1016;  47  M.  L.  J.  876;  A.  I.  R.  1925  Mad. 

281.    (Followed)  ...     968 

Nagindas    Bhukandaa  v.    Ghelabhai  Gulabdas, 

56  Ind.  Caa.  449  &  450;  44  B.  673;  22  Bom.  L. 

B.  322.    (Dissented  from)  ...    673 

Nagindas  Maneklal    v,   Mahomed   Yusaif    Mil- 
chela.  64  Ind.  Cas.  923;  46  B.  312;  23  Bom.  L. 

R.  1094;   A.  I,   R.   1922   Bom,  122,    (Rtlied 
Hp  on)  „    378 


N-coneld. 


Pagt. 


Naina  Muhammad  Rowther  y.  Abdul  Rahaman 

Rowther,  72  Ind.  Cas.  207;  46  M.  135;   (1922) 

M.  W.  N.  845;  17  L.  W.  188;  32  M.  L.  T.  82; 

A.  I.  R.  1923  Mad.  257.  (Followed)  . .  396 

Nalannad  v.  Kambirampora  Ravuni  Nair,  84 

Ind.  Cas.  973;  47  M.  L.  J.  686;   (1924)  M.  W. 

N.  792;  20  L.  W.  876;  35  M.  L.   T.  127;  A.  L 

R.  1925  Mad.  260.  (Not  followed)  ...  827 

Namberumal  Chetty  v.  Kotnyya,  21  Ind.  Cas. 

773;  14  M.  L.  J.  498.  (Relied  on)  .  ...  674 

Nanda  Kumar  v.  Ram  Jiban,  23  Ind.  Caa.  337; 

41  C.  990;  18  C.  W.  N.  681;   19   C.  L.  J.  457. 

(Followed)  . .  317 

Natarajula  Naicker  v.  Subramanian  Chettyar,  69 

Ind.  Cas.  939;  45  M.  778;  (1922)    M.  W.  N.  450; 

A.  I.  R.  1922  Mad.  181;  16  L.  W.  705;  43  M.  L. 

J.  695.  (Pillowed)  ...  626 

Nathu  v.  Shadi,  29  Ind.  Cas.  495;  37  A.  522;  13  A. 

L.  J.  714.  (Not  followed)  ...  265 

Natla  Bapiraju  v.  Puran  Achutha  Rajajee,  5  Ind. 

Cas.  456;  20  M.  L.  J.  337;  (1910)  M.  W.  N.  549; 

7M.  L.T.17C.  (Followed)  ...  113 

Nepal  Rai  v.  Debi  Prasad,  27  A.  447;  2  A.  L.  J. 

105;  A.  W.  N.  (1905)  40.  (Followed)  ,..  624 

Nilkanth  v.  Teshwant,  65  Ind.  Cas.  331;  18  N. 

L.  R.  134;  A.  I.    R.  1922  Nag.  248.    (Dissented 

from)  t  ...  803 

Nilmoni  Chowdlniri  v.  Basanta  Kumar  Baner- 

jee,  29  Ind.  Cas.  814;  19  C.  W.  N.  865.  (Relied 

upon)  ...  5 

Niranjan  v.  Gajadhar,  30  A.  133;  5  A.  L.  J  71;  A. 

W.  N.  (1908)  45.  (Followed)  . .  995 

Nritia  Gopal  Singh  v.  Chandi  Charan  Singh,  10 

C.  W.  N.  1088;  4  Cr.  L.  J.  215.    (Pillowed)     ...     164 


Official  Assignee  of  Madras  v.  Annapurnammal 
20  Ind.  Cas.  901;  14  M.  L.  T.  150.  (Relied 
upon)  ...  5 

v.       Sam  band  a 


Mudaliar,  60  Ind.  Cas.  205;  43  M.  739;  39  M.  L. 
J.  345;  28  M.  L.  T.  258.    (Reliedupon) 


Pachkauri  Lai  v.  Mul  Chand,  66  Ind.    Cas.  503; 

44  A.  554;  20    A.  L.  J.  437;  A.  I.  R.    1922  All. 

279.  (Followed)  .  ..,  1015 

Panchanada  Velan  v.  Vaithinatha  Sastrial,  29  M. 

333;  16  M.  L.  J.  63.  (Followed)  ...  352 

Panchanan  Basu  v.  Chandi  Charan  Misra,  6  Ind. 

Cas.  443;  37  C.  808;    14  C.  \V.  N.  874.    (Relied 

on)  ..  553 

Pandiri  Bangaram  v.  Karmoory  Subbaraju,  8 

Ind.  Cas.  388;  34  M.  159;  8M.  L.  T.  285.    (FoZ- 

lowed)  ...  471 

Pansulari  Venkataswami  v.  Mentana  Rama- 

chandraRaju,  18  Ind.  Cas.  520;  38  M.    138;  24 

M.  L.  J.  298;  13  M.  L.  T.  218;  (1913)  M.  W.  N. 

285.  (Distinguished)  ...  973 

Parbati  v.  Baij  Nath  Pathak,  16  Ind.  Cas.  406;  35 

A.  3;  10  A.  L.  J.  300.  (Followed)  . .  479 

Parkodi  Achi,  In  re,  68  Ind.  Cas.  444;  45  M.  246; 

14  L.  W.  624;  41  M.  L.    J.  587;  (1921)  M.  W.  N. 

854;  30  M.  L.  T.  88;  A.  L  R.  1922  Mad.  211, 

(Followed)  ...  824 

Pearl  Mill  Co.  v.  Ivy  Tannery  Co.,  (1919)  1  K.  B. 

78;  88  L.  J.  K.  B.  134;  120  L.  T  28;  24  Com. 

Cas.  169.    (Relitd  on)  '  ,.,    333 


30 


Pooley  v,  Harradine,  (1857)  110  R,  R,  668;  7  E, 
&  B.  431;  26  L.  J.  Q.  B.  156;  3  Jur.  (N.  s.)  488; 
5  W.  R,  405;  119  E.  R.  1307,  (Belied  upon)  .,  667 

Prohlad  Chandra  Das  v.  Biswa  Nath  Bera  82 
Ind.  Cas.  411;  51  0.  972;  28  0.  W.  N.  bD4-  40 
0.  L.  J,  79,  A.  I.  R,  1924  CaJ.  1047.  (Disiin* 
guished)  . .  973 


INDIAN  OASES. 


Queen- Empress  v.  Adam  Khan,  22  A,  106;  A.  W 
N.  (1899)  211;  9  Ind.  Dec.  (N.  s)1100.  (Not 
followed) 


v.  Bisheshar,    16  A.  124;  A.  W. 

N.  (1894)  10;  8  Ind.  Dec.   (N.  3.)  80.    (Dissented 

,  Mastana,  il  P.  R,  1899   Or". 


from) 
(Followed) 


v.  Virappa  Chetti,  20   M.  433; 


895 

885 
170 


1  Weir  233;  7  Ind.  Dec.  (N.  e.)  307,    (Followed)    818 


R.  y.  DeBerenger,  (1814)  3  M.  A  S.  67;  105  E.  R. 
536;  15  R.  R.  415.  (Relied  upon)  . .  419 

~  v.  Gurney,  (1869J  11  Cox  C.  C.  414.  (Relied 
upon)  . .  419 

•~  v,  Murphy,  (1838)  8  C.  &  P.  297.  (Relied 
upon)  ...  419 

—  v,  Parsons,  (1762)  1  Bl.  W,  392;  92  E.  R.  222. 
(Relied  upon)  ...  419 

Rabindra  Chandra  Chatterjee,  In  re,  67  Ind.  Cas. 
985;  40  0.*  850;  35  0.  L.  J.  520;  A.  1.  R.  1922 
Cal.  484.  (Followed)  ...  896 

Radha  Churn  Chukerbutty,  In  re,  10  C.  W.  N 
1039;  4  C.  L.  J.  229;  4  Cr.  L.  J.  160.  -Dissented 
from)  *  ...  896 

Radhakiian  Hakumji  v.  Balwant  Ramji,  7  B.  530; 
8  Ind.  Jur.  146;  4  Ind.  Dec.  (N.  s)  '357.  (Dis- 
tinguished) .  759 

P...."  "'-'."  v.  Udechand,  11  C.  P.  L.  R.  65. 
(heiieaon)  ,.,  305 

Raghunathaswanri  Jyengar  v.  Gopaul  Rao,  68 
Ind.  Cas.  667;  41  M.  L.  J.  547.  (1«21)  M  VV  N 
732;  15  L.  W.  123;  A.  I.  R.  1922  Mad.  307.  (Not 
followed)  . .  308 

Ragunath  Das  v.  Sunder  Das  Khetri,  24  Ind  Cas 
304;  42  C.  72;  18  C  W.  N.  1058;  1  L.  W.'  567; 
27  M.  L.  J.  150;  16  M.  L.  T.  353:  (1914)  M* 
W,  N.  747;  16  Bom.  L.  R.  814;  20  C  L,  J 

-  555;  13  A.  L.  J.  151;  41 1.  A.  251  (P.  C.).  (Relied 
o»)  . .  308 

Raj  Kumari  Debi  v.  Barkatulla  Mandal,  12  Ind 
Cas.  161;  39  C.  278;  14  C.  L.  J.  407-  16  C  W* 
N.  6.  (Followed)  ...  961 

Raja  of  Ramnad  v.  Venkatarama  Iyer,  69  Ind 
Cas.  923;  45  M.  890;  16  L.  W.  274;  (1922)  M' 
W.N.501;  31M.L.  T.  158;  43  M.  L.  J.  264; 
A.  I.  R.  1923  Mad.  6  (F.  B.).  (Relied  on)  ..!  976 

Rajah  of  Ramnad  v.  Venkataramaiyer,  69  lad 
Cas.  923;  45  M.  890;  16  L.  W.  274;  (l922)  M  w' 
N.  501;  31  M.  L.  T.  158;  43  M.  L.  J.  564"  A  i  R' 
1923  Mad.  6.  (Followed)  '  t  J  412 

Rajah  of  Venkatagiri  v.  Mukku  Narsava,  7  Ind* 
Cas.  202;  37  M.  1;  8  M.  L.  T.  258;  (1910  M  w' 
N.  369.  (Followed)  '  863 

Rajah  of  Vizianagram  y.  Rajah  Setrucherfa 
Somasekharaz,  26  M.  686;  13  M,  L,  J.  83.  (Fol- 

».>1056 


R-eoatd, 


[1926 


Page. 


Rajangam  Ayyar  r,  Rajangam  Ayyar,  69  Ind, 
Cas.  123;  46  M.  373;  31  M.  L,  T.  136;  4  U  P.  L, 
R.  (P.  0.)  85:  16  L.  W.  615;  A.  I.  R.  1922  P.  C, 
266;  27  C.  W.  N.  561;  44  M.  L.  J.  745;  37  C.  L. 
J.  435;  21  A.L.  J.  460;  501.  A.  134  (P.  0.). 
(Relied  upon)  ..  1028 

Ram  Bharos  v.  Baban,  22  Ind.  Cas.  734;  36  A. 
129;  15  Cr.  L.  J.  158;  12  A.  L.  J.  106.  (Fol- 
lowed) ...  895 

Ram  Bilas  Singh  v,  Ramyad  Singh,  58  Ind,  Cas. 
303;  5  P.  L.  J.  622;  1  P.  L.  T.  535;  2  U.  P.  L.  R. 
(Pat.)  228.  (Relied  upon)  ...  378 

Ram  Chandra  v.  Muhammad  Nur,  73  Ind,  Cas. 
656;  21  A.  L.  J.  485;  45  A.  545;  A.  I.  R.  1923 
All.  591.  (Distinguished)  ...  31« 

Ram  Charan  v.  Lakhi  Kanta,  7  B.  L,  R.  704;  16 
W.  R.  1  (Followed)  ...  960 

Ram  Lai  Singh  v.  Hari  Charan  Ahir,  5  Ind.  Cas. 
999;  37  0  194;  11  C.  L.  J.  410;  11  Cr.  L.  J. 
348.  (Relied  upon)  . .  855 

Ram  Narayau  Rai  v.  Ram  Davi  Rai,  63  Ind.  Cas. 
282;  A.  I.  R  1923  Pat.  98;  6  P.  L.  J.  680;  (1922) 
Pat.  129.  (Not  followed)  ...  980 

Ram  Nundun  Singh  v.  Janki  Koer,  29  C  828;  29 
I.  A  178;  7  C.  W.  N.  57;  4  Bom.  L.  R  634;  8 
Sar.  P.  0.  J.  351  (P.  0  ).  (Relied  on)  .  126 

Ram  Prasad  v.  Rahat  Bibi,  33  Ind.  Cas.  622;  18 
0.  0.367.  (Followed)  ...  265 

Ram  Singh  v.  Mathura,  14  Ind.  Cas.  599;  3t  A. 
354;  9  A.  L.  J.  303;  13  Cr.  L  J.  247.  (Distin- 
guished) •  ••  588 

Ramachandra  Iyer  v.  Perameswaram  Munbi,  50 
Ind.  Cas.  693;  42  M.  360;  38  M  L.  J.  396;  25 
M.  U  T  304;  9  L.  W  492;  (1919>  M.  W.  N.  370. 
(Relied  on)  '  •  .,950 

Ramakka  v.  Nagasam,  02  Ind.  Cis  13  5;  47  M.  800; 
48  M.  L.  J.  89;  A.  I.  R.  1^5  Mad.  145.  (Relied 
on)  ...  193 

Ramakrishna  Pillai  v.  Balakrishna  Aiyar,  62  Tnd. 
Cas.  71*;  41  M.  L.  J.  60;  13  L.  W.  541;  (1921; 
M.  W.  N.  646.  (Relied  upon)  ...  300 

Ramamirtha  Ayyan  v.  Gopala  Ayyan,  19  M.  433; 
6  M  L.  J.  2)7;  6  Ind.  Dec.  (N.s.)10o7.  (Fol- 
lowed) ...  479 

Ramanadan  Ohetti  v.  Pulikuti  Servai,  21  M.  288; 
8  M.  L.  J.  121:  7  Ind  Dec.  (N.  s  )  559.  (Followed)  20 

Ramaauthan  Chettyar  v.  Kalimuthu  Pillay,  18 
Ind.  Cas.  189;  37  M..163;  24  M.  L.  J.  619.  (Reli- 
ed on)  • «  491 

Ramaaawmi  Chettiar  v.  Oppilamani  Chetti,  4 
Ind.  Cas.  10  9;  33  M.  6;  6  M.  L.  T.  269;  19  M. 
L.J.671.  (Relied  on)  ..  709 

Ramffulam  Singh  v.  Sheo  Deonarain  Singh,  51 
Ind.  Pas.  152;  4  P.  L.  J.  287.  (Not  followed)  802 

Ratan  Chand  Jawala  Das  v.  Asa  Singh  Bagha 
Singh,  62  Ind.  Cas.  898;  4  L.  L.  J.  217;  A.  I.  R. 
1922  Lah.  188.  (Relied  on)  •  ••  674 

Ratan  Chand-Jwala  Das  v.  Asa  Singh-Bagha 
Singh,  59  Ind.  Cas.  669;  3  U.  P.  L.  R.  (L.)  3;  26 
P.  W.  R.  1921;  31  P.  L.  R.  1919.  (Relied  on)  674 

Ratan  Lai  v.  Birjbhukan  Saran,  61  Ind.  Cas. 
774.  (Distinguished)  •  ••  787 

Ratnam  Pillai  v.  Nataraja  Desikar,  84  Ind.  Cas. 
200;  46  M.  L.  J.  341;  19  L.  W.  367;  <1924^  M. 
W.  N.  361;  A.  I  K.  1924  Mad.  615;  34  M,  L.  T 
31.  (Relied  an)  ••  WQ 

Reference  under  Court  F^es'  Act,  29  M.  367;  16 
M.  L,  J.  287.  (Followed)  *»  W* 


Vol.  92J 


TABLE  OF  CASES  APPLIED  <*c. 


R—cencld, 


Page, 


Rerigate  Rural  District  Council  v.  Sutton  Dis- 
trict Water  Co.,  (1908 x  99  L.  T.  168;  72  J.  P. 
301;  6  L.  G.  R.  930.  ^Followed)  ...  58 

Richards  v.  Starck,  (1911)  1  K.  B.  296;  80  L.  J.  K. 
B.  213;  103  L  T.  813;  27  T  L.  R.  29.  (Followed)  968 

Rudrappa  v  Karsingrao,  29  J3.  213;  7  Bom.  L.  R. 
12.  (Followed)  ...  58 

J}.1!1:1  :'.  v.  Krishnaewami,  75  Ind.  Cas.  189; 
hi.  W  237;  ;m3j  M  W.  N.  6(54;  47  M.  139; 
A.  I,  R.  1924  Wad,  369.  (Followed)  ...  556 


Sabapathy  Chetty  v.  Ponnusawmy  Chetty,  28  Ind. 

Oas.  365.    (Followed)  ...    524 

Samia  Pillai  v.  Chockalinga  Chettiar,  17  M.    76; 

4  M.  L.  J  8;  6  Ind.  Dec.  (N.  s.)  52.    (Relied    on)    709 
Bankaralinga  Nadan  v.   Rajeswara  Dorai,    31  M 

236;  i2  C.  W.  N.  946;  4  M.  L    T.    101;  18  M.  L. 

J.  387;  10  Bom,  L.  R.  781;  8  C.  L.  J.  230;   35  I. 

A.  176  (P.  C.)    (Distinguished)  ...     311 

Sankaranaryanam    Pillai   v.    Rajamani,  83  Ind. 

Cas.  196;  47  M.  462;  46  M.  L.  J.  314;  34   M.   L. 

T.  152;  A.  I.  R.  1924  Mad.  550;   20   L.  W.    357. 

(Followed)  ...    524 

Sankunni  v.  IkkoraKutti,  52  Ind.  Cas.  989;  (1919) 

M.  W.  N.  570;  10  L.  W.  155;   37  M.  L.J.209. 

(Followed)  . .     968 

Sarup  Narain  v.  Sheo  Shankar  Lai,  42  Ind.    Cas. 

416;  4  0.  L.  J.  522.     (Followed)  .     317 

Sasibhushan  Mookerjee  v.  Rndhanath  Bose,  25 

Ind.  Cas.  267;  19  C    VV,  N.  835,  20  C.  L.  J.  433. 

(Relied  on)  544 

Sasti  CharanNundi  v.  Annapuruna,  23  C.  699;  12 

Ind  Dec.  (N.  s.)  465.     (Dissented  from)  ..     984 

Sat  Narain  v.  Behari  Lai,  84    Ind.   Cas.  883;  23 

A,  L  J.  85;  47  M.  L.  J.  857;  10    0    &    A.  L.  R.       ' 

1332;  A.I.  R.  1925  (P.  C.)  18;  (1925)  M.  W.  N. 

1;  L.  R.  6  A,  (P.  C  )  1;  26  P.  L.  R.  hi;  27   Bom. 

L.  R.  135;  21  L.  W.  375;  1  L.  C   500;  1  O.  W.  N. 

916;  6  L.  1;  29  C.  W.  N.  797;  52  I.  A.  22  (P.  C.) 

(Pillowed)  309 

Satis  (liandra  Cl  akrabarti  v.Ram  Dayal  Oe,  59 

Ind.  Cas.  143;  48  C.  3H8;  32   C.  L.  J.  94;    24  C. 

W.  N.  982;  22  Cr.  L.  J   31.     (Relied  on)  429 

Satyendra  Kath  Sen  v.  Narendra  Nath  Gupta,  81 

Ind.  Cas  867;  39  C.  L.  J  279;  A.  I.  R  1924  Cal. 

'806.     (Relied  upon)  .     493 

Secretary  of  State  for  India  v.  Mathnrabai,  11  B. 

213;  7  Ind.  Dec  (N.  s.)  600.     *  Distinguished)     ..      465 
Seshamma  Shettati  v.  Chickaya  Hegade,   25    M. 

507;  12  M.  L.  J.  119.     (Distinguished)  ...     963 

Sevak    Jeranchod  BhogiJal    v.    Dakoie    Temple 

Committee,  87  Ind.  Cas.  313;  49  M.  L.  J  25;  23 

A.  L.  J.  555;  A.  I.  R.  1925  (P.  C.)  153;  L  R.  GA. 

(P.  0)117;  (1925)  M.  W.    N.    474;  2   O.  W.  N. 

535;  41  C.  L.  J.  628;  22  L.  W.  246;  27  Bom.    L. 

R.  872  (P.O.).    \Faiowed)  ..      556 

Sevugan  Chetty  v.  K  \  i.-Vi  {•  Ai>  :mir  i".  13  Ind.  Cas. 

268;  36  M.  :ii8;  ll-  .M.  L  t.  j,'  7;  "a2  M.  L.  J.  139. 

(Relied  on)  *  ..330 

Seymour  v.  Pickett,  (1005)  1  K.B.  715;   74  L.  J. 

K  B.  413;  92  L.  T  510V  21  T.  L.  R.   302.     (Fol- 
'   lowed)  '     -  "...    947 

Shankar  Bharati  v.  Naraeinha    Bharati,   69  Tnd. 

Cas.  80;  47  B.  106;  24  Bom.     .  R  925;  A.    I.  R. 

1922  Bom.  383.    (Followed  1027 

Shankar  Sahi  v.  Baichu  Ram,)  86  Ind.  Cas.  769;  47 

A.  381;  23  A.  L  J,  204;    L.    R.    fi  A.  214  Civ,; 

A.  I,  R,  1925  All,  333,    (Distinguished)  .*.    378 


8-cotttd,     ^ 


Page, 


Shanmuga  Mudaliar  v.  Kumaraswami  Mudali, 
90  Ind.  CUB.  4*0,  21  L.  W.  403;  A.  I.  R.  1925 
Mad.  b70;  (1925)  M.  W.  N.  655;  48  M.  661.  (Dis- 
sented from]  ...  9C8 

Sharada  Moyee  Burmonee  v.  Wooma  Moyce  Bur- 
monee,  8  W.  R.  9.  'Followed)  '  . .  833 

Sharpe  v.  Wakeiielcl,  (1891)  A.  O/  173;  60  L.  J. 
M.  0.  73,  64  L  T.  180;  39  \V.  R.  551;  55  J.  P. 
197.  (Followed ;  ...  1031 

Sheikh  Muhammad  v  HabibKhan,  67  P.  R.  1905; 
113  P.  L.  R.  1905;  94  P.  W.  R.  1305.  (Followed)  1012 

Shiva  Nathaji  v.  Joma  Kashinath,    7    B  341;    7 
lud.  Jur.  656;  4  Jnd.  Dec.  (N.  B.)  229.    (Follow- 
ed) ...      40 

SitaRamv.  Raja  Ram,  12  P.  R  1892.  (Followed)    252 

Sita  Ram  v  Ram  Lai,  18  A.  410;  A.  VV.  N.  (1896) 
162;  8  Ind.  Dec.  (M.  s  )  999.  (Followed)  ...  20 

Sitaramaswamy  v.  Dulla  Lakshmi  Narasamma, 
48  Ind.  Gas.  840;  41  M.  510;  8  L.  W.  21.  (Dis- 
tinguished) ...  946 

Sivakolundu  Pillai  v.  Ganapathy  Iyer,  37  Ind. 
Cas.  964;  (1917)  M.  W.  N.  89.  (Followed)  . ,  833 

Smith  v.  Lion  Brewary  Co  ,  (1911)  A.  C.  150;  80 
L.  J.  K  B.  566;  104  L.  T.  321;  75  J.  P.  273;  55 
S  J  2<59;  27  T.  L.  R.  201;  5  Tax.  Cas.  568. 
(Relied  on)  ...  943 

SofaollKhanv.  Woopean  Khan,  9  W.  R.  123. 
(Followed)  .  58 

Sonba  v.  Ganesha,  17  Ind.  Cas.  887;  8  N.  L.  R. 
182.  (Distinguished)  ...  803 

Sowbagia  Ammal  v  Manika  Mudali,  42  Ind.  Cas. 
975;  33  M,  601;  22  M.  L.  T.  386;  (1917)  M.  W. 
N  782;  6  L  W.  701.  (Relied  on)  ..  497 

Sreenath  Das  v.  Ghanashyara  Naik,  46  Ind.  Cas. 
534;3PLJ.  405  (Followed)  ...  317 

Sri  Krishna  Doss  v.  Chandook  Chan:),  4  Ind.  Cas. 
509;  32  M.  334;  5  M.  L.  T.  125;  19  M.  L.  J.  307. 
(Relied  on)  ...  20 

Srinivasa  Row  v.  Pichai  Pillai,  21  Ind.  Cas.  629; 
38  M  650;  25  M.  L.  «J.  567.  (Relied  upon)  ...  300 

Strong  &  Co.  Ltd.  v.  Woodfield,  (J8C6)  A.  C  448; 
75  L.  J.  K  B.  864;  95  L.  T.  2J1;  22  T.  L.  R.  754 
(Relied  on)  ...  943 

Subbaiya  Pandaram  v.  Muhamad  Mustapha  Mar- 
acayar,  74  Ind.  Cas.  4^2;  47  M.  751:  21  A.  L. 
J.  730;  A  1.  R.  1923  P  C.  175;  45  M.  L.  J.  588; 

25  Bom.  L    R.  1275;  18  L.  W.  903;  (1924)  M  W. 
N.  60:  28  C  W  N.  493;  2  Pat.L.  R.  104;  33  M. 
L.  T.  2^5;  40   C.   L.  J.   20;  50  I.  A.  295  (P.  C.). 
(Relied  on)  ...     342 

Subhadrayamma  v.'Venkatapati,  80  Ind.  Cas.  807; 
48  M.  230;  A.  I.  R  1924  P  C.  162;  47  M.  L.  J.  93; 

26  Bom.  L.  R.  786;  20  L.  W.  298;  (1924)  M.  W. 
N.  607;  29  C.  W.    N.    57;  L.  R.  5  A.  (P  C.)  147 

(P.  C.).    (Followed)  ...     973 

Subrahmania  Pathar  v.  Narayana  Nayar,   24  M. 

130.     (Relied  upon)  ...     394 

Subriunania  Chettiar  v.  A'.1-.   :  :  •   Chettiar,  80  M. 

268;  2  M.  L.  T.  189.    (•'    '    .    :,  ...     782 

Subramania  Chettiar  v.  Raja  of  Ramnad,  43  Ind. 

Cas.  187;  41  M.  327;  6  L/W.   762;    (1917)  M.  W. 

N.  872;  34  M.  L.  J.  84.    (Relied  on)  ...    497 

Subramanian  v.  Lutchman,    71   Ind.  Cas  650;  50  j 

I.  A.  77;  A.  I.  R.  1923  P.   C.  50;  44  M.  L.  J.  602; 

32  M.  L.  T.  184;  25  Bom.  L.    R.    582;  1  R.  66;  2 

Bur.  L.  J.  25;  3ft  C.  L.  J.  41;  18  L.  W.  446;  (1923) 
•  M.  W.  N.  762;  28  C,  W.   N.  1;  50  C,  338  (P.  0.) 

(Followed)  •          ...    948 


INDIAN  OASES. 


[1986 


Subrao  Mange^fc  v.  Mahadevi  Bhatta,  21  Ind.  Gas. 

330;  38  B.  105*at  p,  110;   15  Bom."  L.  R.  848. 

(Dissent efl  frdyi)      \  •  •  • 

Sundaresam    Gh'ettiar   v.    Viswanatha   Pandara 

Sannadhi/7&  h*L  Cas.  10^45  M?703;  31  M.  L 

T  66- 16  L.  jy\f3;  43  M.  L     J.    147;  (1922>M! 

W    N.  444;  A.  E  R.   1922  M5d.  405.    (Relied 

on)  481 

Sundaresam   Chettiar  v.    Viswanatha    Pandara 

Sannadhi,  72  Ind.  C»s*103*  45  M,  703;  31  M>L. 

T  66- 16  L.  W.  83;<43:M*L.  J.*t7;  (1922)  M.  W. 

N.  444;  A.  I.  R.  1922  Mad.  402.    (Followed)    ... 
Sunder  Lai  v.  Raghunandan  Prasad,  83  Ind.    Cas. 

413;  3  Pat.  253;  5  P.  L.  T.  133;  A.  I.  R.  1921  Pat. 

465.    (Dissented  from}  .. 

Surjumull  Murlidhar    Chandick    v.  Ananta  Lai 

Damani,  74  Ind.  Gas.  1029;  4(5  M    948;  45  M.  L. 

J  399;  18  L.  W.  485;  (1923)  M.  W.  N.  743;  A.  I. 

R.  1924  Mad.  352.    (Relied  upon)  . 

Syed  Ahmad  v.  Emperor,  22    Ind.  Cas  163;  35 

A.  575;  11  A.  L.  J.  933;  15  Or.  L.  J.  19.     (Fol- 
lowed) •  - 
Syud  Mahomed  Hossein  v.  Shaikh  Montogul  Haq, 

18  W.  R.  440.    (Distinguished)  ... 


Tajbi  Abalal   v.    Mowlakhan   Alikhan,    29  Ind. 
Cas  603;  41  B.  485;    19  Bom.    L.  R.  300.    (Fol- 

lowed) •  ' 

Tansuturi  Sriramulu  v.  Nalam  Krishna  Row,  25 

Ind  Cas.  1001;  38  M.   585;  (1914)  M  W.  N.  646; 

16  M.  L.  T.  303;  27  M.  L.  J.  589;  15  Or.  L.  J.  673. 

(Distinguished)  • 

Thadi  Ramamurthi  v.  Moola  Kamiah,  24  Ind. 

Cas  667;  16  M.  L.  T.  123;    (1914)  M.  W.  N.  733. 

(Followed)  ••• 

Thakur  Prasad  v.  Fakir  Ullah,  17  A.  106;  5  M. 

L  J  3;  22  I.  A.  44;  6    Sar.  P.    C.  J.  526;  8  Ind. 

Dec.  (N.  s.)  393  (P.  C.).  (Relied  on)  .. 

Tafaluddi  Peada  v  Mahar  Ah  bhaha,  26  C.  75; 

13  Ind.  Dec.  (N.  s.)  654.  (Followed)  .  . 

Tula  Ram  v.  Tulshi  Ram,  60  Ind.  Cas.  3;  42  A. 

559-  18  A.  L.  J.  699.    (Relied  upon)  .  . 


5pr 

,520 

483 
504 

1046 
493 


82 


748 


50* 


802 
948 
378 


Udhasimr  v.    Emperor,  35  Ind.    Cas.    670;  10  S. 
L  R.  69  at  p.  71;  17  Cr.  L  J.  366.    (Relied  up- 

on) •  -    419 

Uma  Charan   Chakrabarti  v.   Nibaran  Chandra 

Ohakrabarti,  75  Ind.  Cas.  2;  37  C.  L.  J.  452;  A. 

1  R   1923  Gal,  389.    (Followed)  560 

United  Telephone  Co.  v.  Donohoo,  (1886)  31    Ch. 

D   399;55L.J.Ch.480;54I,T.  31;    31W.B. 

326.     (Distinguished)  .-     562 

[ToendraNathNag  Chowdhry  v.  Bhupendra  hath 

Nag  Chpwdhry,  9  Ind.  Cas.  582;  13  C.  L.  J.  157. 

(Distinguished)  •• 

Jeher's  Wiltshire  Brewary   Co.   v.  Bruce,  (1915) 

A  O  433'  84  L.  J.   K.   B.  417;  112  L  T.  651;  6 

TaxOas/399;    59    S,  J.    144;  31  T.  L.  R.  104. 

(Relied  on)  ... 


940 


943 


V — concld. 


Page. 


Vaidyanatha  Ayyar  v.  Swaminatha  Ayyar,  82  Ind. 
Cas.  804;  47  M.  884;  47  M.  L.  J.  361;  35  M.  L.  T. 
189;  A.  I.  K.  1924  P.  C.  221;  (1924)  M.  W.  N  749; 
10  O.  &  A.  L.  R.  1076;  26  Bom.  L.  R.  1121;  20 

-  L.  W.  803;  22  A.  L.  J.  983;  40  C.  L.  J.  454;  29 
C.  W.  N.  154;  51  I.  A  282;  26  P.  L.  R.  1;  L. 
R.  0  A.  (£>.  C.)  17;  1  O.  W.  N.  617  (P.  C.)  (Re- 
lied on)  ..  950 

Vaithinatha  Aiyar  v.  T-:  iyn^.-ir/iia  Aiyar,  68 
Ind.  Cas.  G31;  41  M.  L.  J.  20  at.  p.  29.  (Fol- 
lowed) ...  516 

Varada  Pillai  v.  eTosvarathnammal,  53  Ind.  Cas. 
901;  43  M.  244;  (1919)  M.  W.  N.  724;  10  L.  W. 
679;  24  C.  W.  N.  346;  38  M.  L.  J.  313;  18  A.  L.  J. 
274;  46  I.  A.  28j;  2  V.  P.  L.  R.  (P.  C )  61;  22 
Bom.  L.  K.  411  (P.  C  ).  (Followed)  ...  99 

Vasudevan  Nambudri  v.  Mammod,  22  M.  212;  8 
Ind.  Doc.  (N.  s.)  151.  (Distinguished)  ..  968 

Velayutha  Muppan  v.  Subramanian  Chetti.  18 
Ind.  Cas.  498;  2U  M  L  J.  70;  13  M.  L.  T.  207; 
(1913)  M.  W.  N.  130  (Followed)  ...  833 

Vembu  Iyer  v.  Srinirasa  lyengar,  17  Ind,  Cas.  609; 
2,'i  M.  L.  J.  638  at  p.  016;  12  M.  L.  T.  547.     (Re- 
lied on)  . .    827 

Venkata  Jagannadha  v.  Veerabhadrayya,  61  Ind. 
Cas.  667;  44  M  613;  41  M.  L  J.  1;  34  C.  L.  J. 
16;  14  L.  W.  59;  (1921)  M.  W.  N.  401;  30  M.  L. 
T.  It;  26  C.  W.  N.  302;  A.  I.  R.  1922  P.  C.  9G; 
48  I.  A.  244  (P.  C  ).  (Relied  on)  ...  472 

Vcnkateswara  Aiyar  v.  Somasundrarn  Chettiar,  44 
Ind.  CUs  551;  7  L.  W.  280;  (1918)  M.  W.  N.  214. 
(Relied  on)  ..  405 

Venkati  Kama  Reddi  v.  Pillati  Rama  Reddi,  38 
Ind.  Cas  707;  40  M.  204;  31  M.  L.  J.  690;  4  L. 
W.  465;  20  M.  L.  T.  450;  (1917)  M.  W.  N.  112. 
(Followed)  . .  479 

Vishnu  Vishvanath  Niukar  v.  Ramchandra  Sada- 
shiv  Ninkar,  73  Ind.  Cas  1017;  25  Bom.  L.  R. 
508;  A.  I.  R.  1923  Bom.  453.  (Distinguished)  ...  378 

W 

Walkar  v.  Frobisher,  (1801)  6  Ves.    Jur.  70;  31  E. 

R.  943;  5  R.  R.  223.  (Relied  on)  . .  792 

Wallingford  v  Mutual  Society,  .1880)  5  A.  C.  685; 

50  L.  J.  Q.  B.  49;   43  L.  T.  258;   29    W.  R.   81. 

(Distinguished)  ...  968 

Wazir  v.  Girdhari,  71  Ind.  Cas.  847;  A.  I.  R.  1923 

Lah.  311.  (Followed)  ...  980 

William  Cecil  Keyiner  v.  Emperor,  22  Ind.  Cas. 

145;  36  A.  53;  12    A.    L.  J.  1;    15  Cr.    L.   J  1. 

(Followed)  -  ..895 

Williams  v.  Millington,  (1788)  2  R.  R.  724;  1  H. 

Bl.  81;  126  E.  R.  49.  (Relied  upon)  ...  394 

Williams  &  Co.,  In  re\  Official  Receiver,  Ex  parfc, 

(1913)  2K.  B.  88;  82  L.  J.  K.  B.  459;  108  L.   T. 

585;  20  Mauson  21;  57  S.  J.  285;  29  T.  L.  R.  24?. 

(Followed)  ...  620 

Wilmott  v.  Barber,  (1880)  15  Ch.  D.  96;  43  L.  T. 

95;  28  W.  R.  911.  (Followed)  ...  1017 

Wolmershauseri  v.  Gullick,  (1893)  2  Ch.  514;  3 

R.  610;  68  L.  T.  753.  (Relied  on)  715 

Zain-ul-Abdin  Khan  v  Muhammad  Asghar  Ali 

Khan,  10  A.  166;  15 1.  A.  12;  5  Sar.  P.  0.  J.  139;     . 

6  Ind.  Dec.  (s.  8.)  112  (P.  C.).    (Followed) ,      ...    803 


Zohrav.  Mangu  Lai,  28  A.  753;   3  A.  L.  J.  569;  A.    « 
W.  N.  (1906)  223  (F.B.).    (Followed)  -    282 


INDIA 


VOLUM 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1628  OF  1924. 

December  11,  1925. 
Present : — Mr.  Justice  Walsh  and 

Mr.  Justice  Kanhaiya  Lai. 
JAGRUP  SINGH— PLAINTIFF- 
APPELLANT 

versus 

INDRASAN  PANDE  AND  OTHERS— 
DEFENDANTS — RESPONDENTS. 

Agra  Pre-emption  Act  (XT  of  J922),  s.  12  (#)— 
Person  "claiming  pre-emption,"  meaning  of — Vendee, 
or  intended  vendee,  whether  included. 

The  vendee,  or  proposed  vendee,  or  contemplated 
vendee,  or  intended  vendee,  is  a  person  "claiming  pre- 
emption" within  the  meaning  of  the  clause  "more 
persons  than  one  of  the  same  class  claiming  pre- 
emption11 in  a.  12  (3)  of  the  Agra  Pre-emption  Act.  [p. 
1,  col.  1.] 

Iswar  Datt  Upadhiya  v.  Mahesh  Datt  Upadhiya,  89 
Ind.  Gas.  114;  23  A.  :L.  J.  802;  L.  It.  6  A.  451  Civ.; 
(1925)  A.  1.  R.  (A.)  747,  followed. 

The. ordinary  meaning  of  "to  pre-empt"  is  to  pur- 
chase in  preference  to  others,  that  is  to  say,  even  of 
the  whole  world,  and  pre-emption  is  the  effect  of  the 
purchase.  The  vendee,  if  he  is  successful  in  the  end 
over  other  competitors,  does  in  fact  pre-empt  and  is, 
therefore,  properly  spoken  of  as  a  person  claiming 
pre-emption,  [p.  1,  col.  2.] 

Second  appeal  from  a  decree  of  the  Ad- 
ditional Subordinate  Judge,  Azamgarh, 
dated  the  30th  July  1924. 
Mr.  P.  L.  Banerji,  for  the  Appellant. 
Dr.  S.  N.  Sen,  for  the  Respondents. 
JUDGMENT.— This  appeal  raises  a 
simple  question  of  law  on  the  construction 
of  s.  12  sub-s.  (3)  of  the  new  Pre-emption 
Act.  That  question  is  this.  The  sub-section 
providing  that  in  a  case  "where  there  are 
more  persons  than  one  of  the  same  class 
claiming  pre-emption,11  is  the  vendee,  or 
proposed  vendee,  or  contemplated  vendee, 
or  intended  vendee,  a  person  claiming  pre- 
efiption  within  the  meaning  of  the  section. 
In  the  case  of  Iswar  Datt  Upadhiya  v. 
M&hesk  Datt  Upadhiya  (1)  a  Division  Bench 


(1)  89  Ind.  0*s.  114;  23  A.  L.  J,  I 
iv,;  (1925)  A.  I.  R,  (A.)  747, 

1 


L.  R,  6  A,  451 


of  this  Court,  including  one  member  of  the 
Court  now  sitting,  has  decided  that  question 
in  the  affirmative.  Nothing  is  more  im- 
portant in  connection  with  this  question 
and  with  the  new  Act  than  that  the  deci- 
sions of  this  Court  should  be  consistent, 
and,  unless  there  were  some  very  strong 
reasons  compelling  us  to  take  a  different 
view,  we  should  prefer  to  follow  the  view 
taken  in  the  case  just  cited.  In  that  case 
for  some  reason  the  respondents  were  un- 
represented, and  it  might  be  said  that  that 
fact,  to  some  extent,  detracts  from  the 
authority  of  the  decision  because  the  appeal 
was  allowed  in  their  absence.  But  in  this 
case  the  respondents  have  had  the  ad- 
vantage of  Dr.  Sen  to  represent  them  and 
we  do  not  think  that  anything  could  be 
said  on  behalf  of  the  other  view  which  has 
not  already  been  said.  We  agree  with  the 
decision,  however,  on  this  further  ground. 
The  ordinary  meaning  of  "to  pre  empt1'  is 
to  purchase  in  preference  to  others,  that  is 
to  say,  even  of  the  whole  world,  and  pre- 
emption is  the  effect  of  the  purchase.  The 
vendee,  if  he  is  successful  in  the  end  over 
other  competitors,  does  in  fact  pre-empt 
and  is,  therefore,  properly  spoken  of  as  a 
person  claiming  pre-emption.  It  has  been 
pointed  out  to  us  on  behalf  of  the  appel- 
lant that  whereas  "the  right  of  pre  emp- 
tion"  is  spoken  of  in  other  parts  of  the  Act, 
in  this  particular  sub-section  the  word  used 
with  reference  to  what  is  being  claimed  is 
simply  pre-emption.  We  are  further  of 
^opinion  that  this  interpretation  satisfies 
another  test,  namely,  the  true  construction 
of  s.  10  where  it  is  quite  obvious  that  the 
expression  "equal11  or  "inferior11  right  of 
pre-em ption  is  used  with  reference  to  the 
vendee.  We  can  understand  how  it  was 
that  the  Courts  below  came  to  the  decision 
they  did.  The  authority  to  which  we  have 
referred  had  not  then  been  reported.  It 


SHEO  CHAttAN  SINGH  r.  KI8HNO  KOEfe. 


has  been  found  that  the  plaintiff  is  related 
1o  one  of  the  vendors  and  the  husband*' 61 
Ihe  other  vendor  within  four  degrees.  The' 
wajib  ul-arz  filed  shows  that  the  property 
in  question  was  obtained  by  one  of  the 
vendors  and  the  husband  of  the  other 
vendor  from  their  fathers  respectively,  who 
were  own  brothers.  The  appeal  must  be 
allowed  and  the  suit  decreed  subject  to  the 
condition  that  the  plaintiff  is  required  to 
pay  Rs.  1,320,  on  account  of  the  sale  consi- 
deration, found  by  the  Courts  below, 
within  two  months  from  this  date.  If  such 
payment  is  made  he  will  get  his  costs  here 
and  hitherto  including  fees  in  this  Court  on 
the  higher  scale -from  the  defendant  vendee. 
If  he  fails  to  pay,  his  suit  shall  stand  dis- 
missed with  costs  here  and  below,  includ- 
ing fees  in  this  Court  on  the  higher  scale. 
N.  H.  Appeal  allowed. 


PATNA  HIGH  COURT. 

CIVIL  REVISION  No.  95  OF  1925. 

June  4,  1925. 

Present: —  Justice  Sir  John  Bucknill,  KT. 
SHEO  CHARAN  SINGH— DECREE- 
HOLDER — PETITIONER 

versus 

KISHNO  KUER  AND  ANOTHER— 
JUDGMENT-DEBTORS — OPPOSITE  PARTY. 
Civil    Procedure    Code  (Act  (V  of  /0M),    ()  XXI, 
rr.  C>6>  72 — Execution  of    decree — Sale --Decree-holder, 
whether  bound  to  bid  up  to  any  fixed  sum. 

There  is  no  legal  necessity  for  a  bidder  at  an 
auction-sale,  whether  he  be  tho  decree-holder  or  an 
outsider,  to  purchase  the  property  at  the  full  price  at 
\vhick  it  may  have  been  valued  in  the  sale  proclama- 
tion. On  the  contrary,  the  value  of  the  property  is 
really  only  that  which  it  will  actually  letch,  assuming 
t  hat  there  is  no  fraud  or  malpractice  with  regard  to 
the  bidders  and  that  the  sale  has  been  reasonably  and 
properly  made  public,  [p.  2,  col.  2.J 

Application  against  an  order  of  the 
District  Judge,  Gaya,  dated  the  16th  Feb- 
ruary 1925,  against  that  of  the  Munsif, 
First  Court,  Gaya. 

Mr.  Brij  Kishore  Prasad,  for  the  Peti- 
tioner. 

Mr.  Siva  Nandan  Rai,  for  the  Opposite 
Party 

JUDGMENT. 

Bucknill,  J,— This  is  an  application 
in  civil  revisional  jurisdiction  made  to 
this  Court  under  somewhat  curious  circum- 
stances. 

The  applicant  obtained  a  decree  for  rent 
against  the  opposite  party  here  in  the 


[921.0.1926] 

Court  of  the  Munsif  of  the  first  Court  of 
Gaya,  Having  obtained  his  decree  he  then 
-applied  for  execution.  It  would  seem  that 
there  were  four  properties  which  were  put 
up  for  sale  and  the  Court  allowed  the 
decree- holder  (that  is,  the  applicant  here) 
to  bid  for  the  properties  at  the  sale.  There 
seems  no  doubt  that  the  valuation  which 
was  put  on  the  properties  was,  that  the  first 
was  put  at  Rs.  46,  the  second  at  Rs.  1,470, 
the  third  at  Rs.  3,075  and  the  fourth  at  Rs.  55. 
There  is  nothing  on  the  record  or  before  me 
to  indicate  in  ary  way  that  the  sale  procla- 
mations were  not  duly  published  and  in 
fact  on  the  21st  January  last  the  sale  was 
proceeded  with.  It  would  appear  from  the 
record  that  there  were  other  bidders  besides 
the  decree-holder.  Now  the  Munsif  made 
a  curious  order  on  the  22nd  of  January, 
that  is  to  say,  the  day  after  the  sale.  He 
placed  in  his  order-sheet  the  following 
words  : — 

"  Decree-holder  did  not  bid  for  the  valua- 
tion fixed  by  the  Court.  The  case  is  dis- 
missed, vide  order  passed  on  the  sale  pro- 
clamation." 

When  -  we  turned  to  the  sale  proclama- 
tion we  saw  that  the  note  or  order  there 
reads : 

"The  decree-holder  does  not  wish  to'  bid 
up  to  the  value  fixed  by  the  Court.  The 
property  on  sale  is  28*45  acres  nakli, 
hhaoli  and  belagan  lands.  The  decree  is 
for  Rs.  5G6-9.  lie  wants  to  purchase  the 
property  for  a  nominal  value.  This  cannot 
be  allowed  ;  as  the  decree-holder  does  not 
care  to  bid  for  more,  so  I  dismiss  the 
case/1 

Now  it  is  very  difficult  to  see  how  on  the 
language  of  these  two  orders  it  was  really 
altogether  open  to  the  Munsif  to  adopt 
the  course  which  he  did.  I  do  not  know 
that  there  is  any  legal  necessity  for  a  bidder 
at  an  auction-sale,  whether  he  be  a  decree- 
holder  at  whose  instance  the  property  being 
sold  is  being  put  up  for  sale  or  whether 
he  be  an  outside  person,  to  purchase  the 
property  at  the  full  price  at  which  it  may 
have  been  valued  in  the  sale  proclamation. 
On  the  contrary  it  would  seem  that  after 
all  the  value  of  the  property  which  is  thus 
put  up  to  auction  is  really  only  that  which 
it  will  actually  -fetch  at  that  auction  as- 
suming, of  course,  that  there  is  no  fraud  or 
malpractice  with  regard  to  the  bidders  and 
that  the  sale  has  been  reasonably  afcd  pro- 
perly made  public.  I  have  no  doubt  that 
there  is  a  good  deal  of  force  in  what  is 


[92  I.  0. 1926J 


KALKA  VttASAD  V.  PANNA. 


urged  by  the  learned  Vakil  who  appeared 
for  the  opposite  party,  namely,  that  owing 
to  there  being  a  number  of  sales  conducted 
oa  the  same  day  it  was  not  very  feasible 
for  the  Munsif  to  have  recorded  at  great 
length  his  reasons  for  his  order  in  the 
order-sheet.  There  is  nothing  except  the 
suggestion  contained  in  the  order  which 
is  endorsed  on  the  sale  proclamation  where 
the  Munsif  says  that  the  decree-holder 
wants  to  purchase  the  property  for  a  nomi- 
nal value  which  leads  one  to  suppose  that 
there  was  anything  improper  or  wrong  in 
the  way  in  which  the  sale  had  been  made 
public  or  in  the  way  in  which  the  bids  took 
place.  On  the  other  hand,  there  is  certain- 
ly this  to  be  said  in  favour  of  the  Munsif s 
view,  namely,  that  so  far  as  the  second 
property  was  concerned  the  amount  which 
was  in  fact  bid  was  a  very  trilling  one 
compared  with  the  value  which  was  put 
upon  the  property  in  itself.  In  that  in- 
stance it  will  be  observed  that  whilst  the 
value  was  Rs.  1,470  the  price  bid  was 
Rs.  232.  As  regards  the  third  property  put 
up  for  sale  the  difference  was  very  much 
worse ;  for,  there,  whilst  the  value  was 
Ks.  3,075  the  bid  for  it  was  Rs.  231.  What 
I  think  the  Munaif  should  have  done  was 
to  have  expressed  his  views  as  to  the  un- 
satisfactory nature  of  the  sale  in  clearer 
terms  and  to  have  given  his  reasons  which 
ought  to  be  substantial  ones  for  declining 
to  proceed  with  the  sale.  I  do  not  think 
that  the  reasons  which  he  has  given  are 
good  reasons  for  dismissing  the  execution 
casa  ;  for,  so  far  as  we  can  see,  the  decree- 
holder  had  done  nothing  really  wrong  in 
refusing  to  bid  up  to  the  total  valu3  which 
had  been  fixed  on  the  property.  I  think 
the  Munsif  s  order  should  have  been,  after 
having  set  out  his  reasons,  to  have  ordered 
that  there  should  be  an  issue  of  a  fr£sh 
sale  proclamation  under  circumstances  of 
proper  publicity  which  would  ensure  that 
at  the  next  auction  when  the  property 
should  be  put  up  for  sale  there  should  be 
suitable  bidders.  Under  such  conditions 
no  doubt  the  properties  Wv)uld  fetch  what- 
ever they  were  really  worth  and  what  the 
public  was  ready  to  pay  for  them.  It  may 
ba  said  with  regard  to  the  1st  and  4th 
properties  that  the  prices  which  were  offer- 
ed were  substantially  equivalent  to  the 
prices  at  which  the  two  properties  were 
valued  and  that  is  certainly  so.  At  the 
same  time  these  two  properties  are  of  very 
little  account  aggregating  just  Rs.  101 


in  value.  It  does  not,  therefore,  seem  desir- 
able to  split  these  two  properties  away  from 
the  other  two  or  to  regard  the  two  pro- 
perties entirely  separate!}7. 

I  should  mention  that  after  the  decision 
by  the  Munsif  it  would  seem  that  the 
decree-holder  preferred  some  sort  of  appeal 
to  the  District  Judge  of  Gaya.  What 
exactly  happened  before  the  District  Judge 
it  is  difficult  to  understand.  From  the 
order- sheet  of  the  5th  February  there 
seems  to  be  a  note  by  the  serishatadar 
saying  that  the  order  complained  of  is  not 
appealable  (vide  O.  XLIII,  r.  1  and  s.  104, 
0.  P.  C.)  On  the  same  day  the  District 
Judge  minutes:  "  put  up  in  presence  of 
Pleader."  No  date  is  mentioned  as  to  when 
it  should  be  put  up.  But  on  the  16th  Feb- 
ruary we  get  an  order  of  the  District  Judge 
"Pleader  absent.  File/'  Whether  this  is 
tantamount  to  the  dismissal  of  the  appeal 
or  whether  this  is  tantamount  to  the  ad- 
journment of  it  I  do  not  know.  However, 
to  my  mind  the  conclusion  is  after  all  the 
same,  for  although  the  matter  has  come  up 
to  this  Court  by  way  of  complaint  against 
what  appears  to  have  been  the  serishtadars 
order  of  the  5th  February,  there  is  also  a 
complaint  quite  clearly  made  that  the  order 
which  the  Munsif  passed  on  the  22nd  Jan- 
uary was  illegal.  I  have  no  hesitation  in 
coming  to  the  conclusion  that  the  order 
which  was  passed  by  the  Munsif  on  the 
22nd  January  is  an  unsatisfactory  one. 

It  must  be  set  aside  and  the  Munsif 
ordered  to  re-instate ;  the  execution  case, 
to  direct  that  a  new  sale  proclamation  shall 
be  issued  and  that  such  precautions  should 
be  taken  with  regard  to  the  publicity  of 
the  conditions  under  which  the  sale  will 
be  held  so  as  to  ensure  that  a  reasonable 
and  proper  sale  will  be  held  upon  the  date 
fixed.  There  will  be  no  order  for  costs  in 
this  application. 

z.  K.  Order  accordingly. 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1642  OF  1925. 

December  11,  1925. 
Present :— Mr.  Justice  Sulaiman. 
KALKA  PRASAD— PLAINTIFF— 
APPELLANT 

versus 
PANNA — DEFENDANT — RESPONDENT. 

Agra  Tenancy  Act  (II  of  1901),  ss.  175,  182— Dis* 
trict  Judge,  order  of— Appeal,  third,  ~  to  High  Court 
whether  lies. 


PA1VATIBAI  TfetM&AKRAO  fc.  viSMVANAtfl  kHAfoDfeRAO  RAST&          [92  I.  0.  1926] 


Section  182  of  the  Agra  Tenancy  Act  only  allows  u 
second  appeal  to  the  High  Court  and  not  a  third 
appeal. 

Therefore,  no  appeal  lies  to  the  High  Court  from  an 
order  passed  by  the  District  Judge  on  ail  appeal  from 
an  appellate  order  of  a  Collector. 

Lachmi  Narain  v.  Nirotam  Das,  A.  W.  N.  (1906) 
272;  29  A.  69;  3  A.  L.  J.  688,  followed. 

Chhajmal  Das  v.  Sirya,  A.  W.  N.  (1906)  254,  3  A.  L. 
J.  (v25,  not  followed. 

Second  appeal  against  a  decree  of  the  Dis- 
trict Judge,  Jhansi,  dated  the  22nd  of 
August  1925. 

Mr.  S.  N.  Varma,  for  the  Appellant. 

JUDGMENT*— This  purports  to  be 
an  appeal  from  an  order  passed  by  the 
District  Judge  on  an  appeal  from  an  appel- 
late order  of  a  Collector.  Thus  it  is  a  third 
appeal  to  the  High  Court.  Section  182  of 
the  Agfa  Tenancy  Act  only  allows  a  second 
appeal  to  the  High  Court  and  not  a  third 
appeal.  Section  175  bars  all  appeals  which 
are  not  provided  for.  It  is,  therefore,  clear 
that  the  appeal  does  not  lie. 

The  learned  Vakil  for  the  appellant  re- 
lies on  the  case  of  Chhajmal  Das  v.  Sirya 
(1)  where  a  learned  Judge  of .  this  Court 
entertained  a  third  appeal.  That  case 
was  contrary  to  the  decision  in  Lachmi 
Narain  v.  Nirotam  Das  (2)  reported  in  the 
same  volume  at  page  251,  and  must  be 
deemed  to  have  by  implication  been  over- 
ruled by  the  decision  of  the  Bench  in  the 
case  of  Lachmi  Narain  v.  Nirotam  Das 
(3)  reported  in  the  same  volume  at  page  272, 
As  no  appeal  lies,  this  appeal  is 'according- 
ly dismissed  under  O.  XLI,  r.  11 

N.  H.  Appeal  dismissed. 

(1)  A.  W.  N.  (1906)  254;  3  A.  L.  J.  625. 

(2)  A.  W.  N.  (1906)  251,  3  A.  L.  J.  623. 

(3)  A.  W.  N.  (1906)  272;  29  A.  69;  3  A,  L.  J.  688. 


BOMBAY  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  150  OF  1924. 

September  1, 1925. 

Present: — Sir  Norman  Macleod,  KT., 

Chief  Justice,  and  Mr.  Justice  Coyajee. 

PARVAT1BAI TR1MBAKHAO 

PATYARDHAN— PLAINTIFF— 

APPBLLANT 

versus 

VI8HVANATH  KHANDERAO  HASTE— 
DEFENDANT — RESPONDENT. 

Hindu  Law  Adoption— Agreement  between  adoptive 
and  natural  fathers  reserving  right  of  making  Will  to 
adoptive  father,  legality  of. 

An  agreement  between  the  adoptive  father  and  the 
natural  father  of  the  minor  about  to  be  adopted,  made 


at  the  time  of  adoption,  -wliereby  full  powers  are 
reserved  to  the  adoptive  father  to  dispose  of  the  family 
pioperlitid  by  Will,  is  not  valid  according  to  the  Hindu* 
Law  and  is  not  binding  on  the  adopted  son.  [p.  4, 
col.  2.] 

First  appeal  from  the  decision  of  the 
First  Claes  Subordinate  Judge  at  Poona,  in 
Suit  No.  1021  of  19*1. 

Mr.  P.  B.  Shingne,  for  the  Appellant. 

Mr.  G.  N.  Thakor,  (with  him  Mr.  W.  B. 
Pradhan),  for  the  Respondent. 

JUDGMENT*— The  plaintiff  sued  to 
recover  Rs.  6,580  with  costs  of  the  suit  and 
future  interest  at  six  per  cent  from  the 
estate  of  the  deceased  testator  Rao  Badadur 
Khanderao  Vishwanth  Raste  in  the  hands 
of  the  defendant.  The  plaintiff  claimed  this 
amount  as  the  arrears  of  annuity  of  Rs.  400 
a  year  payable  to  her  under  the  Will  of  her 
deceased  father. 

The  claim  has  been  dismissed  by  the 
lower  Court  on  various  grounds,  and  we 
think  that  this  appeal  can  be  disposed  of  in 
a  very  simple  manner. 

The  defendant  was  adopted  in  1896,  and 
Ex.  82,  the  tharavpatra,  was  executed  at 
the  time  as  constituting  an  agreement  be- 
tween the  natural  father  of  the  defendant, 
who  was  then  a  minor,  and  the  adoptive 
father.  One  clause  of  the  agreement  was 
to  this  effect  that  the  adoptive  father  had 
made  a  Will;  that  the  adopted  boy  should 
act  up  to  the  terms  of  the  Will,  and  in  case 
the  adoptive  father  made  other  Wills, 
the  adopted  son  should  behave  according 
to  the  terms  of  the  other  Wills.  That 
clause  in  effect  gave  the  adoptive  father 
an  absolute  right  to  dispose  of  all  his  pro- 
perty even  after  the  adoption  in  any  way 
he  pleased.  The  Will  under  which  the 
plaintiff  claimed  \*  as  made  after  the  adop- 
tion. At  that  time  the  joint  family  consist- 
ed of  adoptive  father  and  the  adopted  son, 
and  according  to  llidnu  Law  the  father 
would  have  no  power  to  make  dispositions 
by  Will  of  the  joint  family  property. 

We  do  not  think  an  agreement  of  this 
nature  is  in  consonance  with  the  principles 
of  Hindu  Law  with  regard  to  agreements 
which  can  be  made  at  the  time  of  the  adop- 
tion between  the  adoptive  father  and  the 
natural  father  of  the  boy  taken  in  adop- 
t.on.  The  result  of  such  an  agreement 
would  be  that  the  adopted  eon  would  lose 
his  right  in  his  natural  family,  and  would 
either  acquire  no  rights  at  all,  or  would 
only  acquire  rights  which  were  liable  to  be 
defeated,  in  his  new  family.  The  appel- 
lant being  aware  of  the  difficulty  of  the 


[92  I.  0.  1926] 


OFFICIAL  REC1EVBR  V.  LACHM1BAI, 


tharavpatra  endeavoured  to  rely  upon  the 
payments  made  to  her  by  the  adoptive 
father  before  he  died.  Huch  payments, 
which,  as  a  matter  of  fact,  were  not  disputed 
by  the  adopted  son  and  had  never  been 
disputed  since  the  death  of  the  adoptive 
father,  could  only  be  considered  as  gifts 
in  prccsenti  of  certain  cash,  and  could  not 
possibly  constitute  a  claim  to  anything  in 
the  nature  of  aay  annuity. 

We  agree  with  the  Judge  that  Ex.  82 
offended  against  the  law  of  minors  and  the 
general  principles  of  Hindu  Law  as  regards 
adoption.  We,  therefore,  dismiss  the  ap- 
peal with  costs. 

z.  K.  Appeal  dismissed. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

JUDICIAL  MISCELLANEOUS  APPLICATION 

No.  329  OF  1923. 

September  22,  1925. 

Present: — Mr.  Rupchand  Bilaram, 

A.  J.  C. 
OFFICIAL  RECEIVER—APPLICANT 

versus 
LACHMIBAI— OfPONENT. 

Provincial  Insolvency  Act  (V  of  W20),  ss.  ,53,  5|, 
difference  between— Encumbrance  created  within  two 
yean  of  adjudication — Consideration —Good  faith — 
Burden  of  proof 

Where  an  incumbrance  created  by  an  insolvert 
within  two  years  of  his  adjudication,  is  challenged  m 
the  Insolvency  Court  the  onus  lies  on  the  incumbran- 
cer  to  prove  both  good  faith  and  valuable  considera- 
tion, [p.  6,  col  1.] 

Official  Assignee  of  Madras  v.  Annapumammal,  20 
Ind.  Cas  901;  14  M  L.  T.  150,  Anantarama  Aiyar  v 
~\us8nfji  Oomer  Sahib,  36  Ind  Cas.  U03,  31  M.  L.  J 
133;  (1916)  2  M.  W.  N  236,  Official  Assignee  of  Madras 
v.  Sambanda  Mudahar,  60  Ind.  Cas.  205,  43  M  739,  39 
M  L.J.  345;  28  M.  L.  T.  258,  Nilmont  Chowdhuri  v 
Basanta  Kumer  Banerjee,  29  Ind.  Cas.  814;  19  C  W. 
N.  865  and  Muhammad  Habibullah  v.  Mushtaq  Hu&atn, 
37  -Ind.  Cas.  684,  14  A.  L.  J,  1183,  39  A.  95,  relied 
upon. 

There  is  a  radical  difference  between  8.  53  and  s.  54 
of  the  Provincial  Insolvency  Act.  Under  s.  54  the 
Court  is  not  concerned  with  the  motive  of  the  trans- 
feree but  only  with  that  of  the  debtor.  It  is  he  who  id 
said  to  have  given  the  preference  and  whether  the  trans- 
feree acted  in  good  faith  or  not  is  immaterial.  Where, 
however,  the  three  months1  limitation  contemplated  by 
s.  54  has  expired,  it  is  open  to  the  transferee  to  prove 
that  whatever  the  motive  of  the  transferor  may  have 
been,  he  on  his  part  acted  in  good  faith.  And  where 
the  consideration  of  the  transfer  is  a  past  debt  the 
transferee  stands  in  a  better  position  than  otherwise. 
He  has  hia  own  interests  to  serve  ando^es  no  duty 
to  the  ether  creditors  to  protect  their  interests.  He  is 
in  the  absence  of  any  statutory  limitation  imposed  by 


the  Law  of  Bankruptcy,  as  much  at  liberty  to  secure 
the  payment  of  his  debt  by  superior  diligence  as  by 
accepting  a  voluntary  preference  provided  he  goes  no 
further  than  what  is  necessary  to  serve  his  own  pur* 
pose  [p.  8,  col.  1.] 

Hakim  Lai  v.  Mooshahar  Sahu,  34  C.  999  at  p.  1018; 
11  O  W.  N.  889;  «  C.  L.  J.  410,  relied  upon. 

Official  Assignee  of  Bengal  v.  Yokohama  Specie 
Bank,  Ltd  ,  87  Ind.  Gas.  392;  29  C.  W.  N.  374,  (1925; 
A.  I.  R.  (C.)  640,  referred  to. 

Application  under  s.  53  of  the  Provincial 
Insolvency  Act. 

Mr,  Dingomal  Narainsing,  for  the  Official 
Receiver. 

Mr.  Kimatrai  Bhojraj,  for  the  Alienee. 

Mr.  Srikishendas  (J.  Lulla,  for  the  Insol- 
vent. 

JUDGMENT.— The  Official  Receiver 
has  applied  under  s.  53  of  the  Provincial 
Insolvency  Act  for  annulment  of  a,  mort- 
gage-deed executed  by  the  two  insolvent 
brothers  Valabdas  and  Sunderdas  on  the 
1st  September  1921  in  favour  of  their  pa- 
ternal aunt  Lachmibai.  The  two  brothers 
belong  to  Shikarpur.  They  carried  on 
business  at  Karachi  with  the  aid  of  gumash- 
tas  in  the  firm  name  of  Naraindas-Sunder- 
das;  Naraindas  being  their  father  who  died 
in  1916.  The  deed  recites  that  Jamnadas 
husband  of  the  mortgagee  had  an  account 
with  the  firm  of  Naraindas  Sunderdas;  on 
which  a  sum  exceeding  Rs.  14,000  was  due 
to  him  and  that  he  had  advanced  a  further 
sum  of  Rs.  10,000  to  the  two  brothers 
on  28th  March  1921  and  the  two  brothers 
had  by  a  letter  dated  17th  May  1921  agreed 
with  Jamnadas  to  mortgage  to  him  a  half 
undivided  share  in  their  residential  house 
at  Shikarpur  in  the  sum  of  Rs.  24,000 
made  up  of  the  two  sums  of  Rs.  14,000 
and  10,000  and  that  Jamnadas  having 
died  on  25th  May  1921  the  mortgagors  had 
in  consequence  of  the  arrangement  made 
with  Jamnadas  executed  the  mortgage- 
deed  in  favour  of  his  widow  and  legal  re- 
presentative. 

The  two  brothers  were  adjudicated  as 
insolvents  o  i  llth  December  19^2  in  pur- 
suance of  an  application  presented  to  this 
Court  on  31st  October  1922  by  one  of  the 
creditors  of  the  insolvents.  The  incumb- 
rance  purported  to  have  been  created  by  the 
mortgage-deed,  assuming  it  to  have  been 
in  pursuance  of  the  letter  dated  17th  May 
1921,  is  within  two  years  of  the  order  of 
adjudication. 

Section  53  of  the  Provincial  Insolvency 
Act  is  a  re-enac'tment  ipsissimis  verb  is  of 
s.  36  of  the  Provincial  Insolvency  Act  of 
1907  and  the  exception  contained  iu  s,  36 


OFFICIAL  RECEIVER  V.  LACHM1BAI. 


of  the  old  Act  in  favour  of  uan  incumb- 
rancer  in  good  faith  and  for  valuable  con- 
sideration" and  a  similar  exception  contain- 
ed in  s.  55  of  the  Presidency  Towns  Insol- 
vency Act  have  been  the  subject  of  judicial 
interpretation.  It  has  been  consistently 
held  by  the  different  High  Courtsthat  where 
an  incumbrance  made  within  two  years 
of  adjudication  is  challenged  in  the  In- 
solvency Court  the  onus  lies  on  the  in- 
cumbrancer  to  prove  both  good  faith  and 
valuable  consideration,  cf.  Official  As- 
signee of  Madras  v.  Annapurnammal 
(1),  Anantarama  Aiyar  v.  Yussufji 
Oomer  Sahib  (2),  Official  Assignee  of  Madras 
v.  Sambanda  Mudaliar  (3)  and  Nilmoni 
Chowdhuri  v.  Basanta  Kumer  Ranerjee  (1), 
Muhammad  Habibullali  v.  Mushtaq  Ilusain 
(5). 

It  has  not  been  seriously  disputed  that 
the  same  considerations  apply  to  s.  53  and 
that  it  is  for  the  opponent  to  prove  both 
valuable  consideration  and  good  faith  in 
order  to  entitle  him  to  succeed. 

The  evidence  of  the  consideration  for  the 
deed  appears  to  be  fairly  strong  and  con- 
clusive. 

The  insolvents  carried  on  their  business 
with  the  aid  of  gumashta  and  maintained 
regular  books  of  account.  They  have  pro- 
duced their  books  from  Sambat  1974  on- 
wards. These  books  show  large  sums  of 
money  due  to  Jamnadas  from  time  to  time. 
The  balances  due  to  him  when  the  account 
books  of  Sambats  1974,  1976,  1977  and  1978 
were  closed  and  fresh  account  books  kept 
were  Rs.  16,956-12-9,  Rs.  14,725-0-6, 
Rs.13,887-8-6  and  Rs.15,195-7-9  respectively. 
No  amounts  appear  to  have  been  withdrawn 
by  Jamnadas  in  Sambat  1974  or  the  year 
1921.  There  are  correspond  ing  entries  in  the 
account  books  kept  by  Jamnadas  himself. 
Exhibits  16  to  18  are  the  entries  in  his  books. 
Exhibit  19  is  a  Vatak  or  memo,  of  account 
prepared  by  the  insolvents1  gumashtas  and 
handed  over  to  Jamnadas  in  the  usual 
course  of  business  and  prove  a  similar  in- 
debtedness 6f  the  insolvents  to  Jamnadas. 
No  evidence  has  been  called  in  rebuttal  to 
prove  that  about  Rs.  15,000  were  not 
due  to  Jamnadas  by  the  insolvents1  Karachi 
firm. 

(1)  20  Ind,  Gas,  901;  14  M.  L  T  150, 

(2)  36  Ind.  Gas.  903,  31  M.  L.  J.  133,  (1916)  2  M  W 
N.236.  '       '   ' 

(3)  60  Ind.  Gas.  205;  43  M.  739,  39  M.  L  J  345-  28 
M.L.T.  258, 

(4)  29  Ind.  Gas.  814;  19  G  W.  N  865 

(5)  37  Ind.  Cas.  684;  M  A,  L.  J.  1183;  39  A.  95 


[92  I.  C.  1926j 

It  would  also  appear  that  Jamnadas  had 
a  banking  account  with  the  firm  of  Pirbdas 
Kanayalal  of  Shikarpur  who  had  a  branch 
lirin  in  Bombay  as  well.  Another  Shikar- 
puri  firm  carrying  on  business  at  Bombay 
in  the  name  of  Tejbhandas  Thoriomal  had 
a  branch  firm  at  Karachi  of  the  same  name. 
A  sum  of  Rs.  10,000  was  paid  by  the 
firm  of  Pirbdas-Kanayalal  at  Bombay  to  the 
linn  of  Tejbhandas  Thariomal  of  Bombay 
on  behalf  of  and  under  instructions  from 
Jamnadas.  The  Karachi  branch  firm  of 
Tejbhandas-Thariomal  appear  in  their  turn 
to  have  paid  the  Rs.  10,000  to  the  insolv- 
ents on  26th  March  1921.  Harbhagwandas 
the  Manager  of  the  Bombay  Branch  of 
Pirbdas  Kanayalal  has  produced  an  entry 
from  sahi  book  of  his  firm  of  the  payment 
of  Rs.  10,000  to  the  firm  of  Tejbhandas 
Thariomal  on  account  of  Jamnadas  and 
duly  signed  by  him.  The  AT  •••:!.!•  z  part- 
Ler  of  Pirbdas  Kanayalal  biniuirpur  has 
produced  a  debit  entry  Ex.  9-1  from  his 
Shikarpur  books  showing  that  Rs.  10,000 
were  duly  debited  to  Jamnadas'  account  in 
their  books.  Pahlajrai,  the  present  Manager 
of  the  Karachi  branch  of  Tejbhandas 
Thariomal,  has  put  in  an  entry  from  his 
cash  book  of  the  payment  of  Rs.  10,000 
to  the  insolvents'  firm  which  is  signed  by 
their  gumashta  Gobindo,  and  has  also 
produced  the  letter,  Ex.  13,  given  by  Jam- 
nadas to  them,  authorising  them  to  pay 
Rs.  10,000  to  the  insolvents.  The 
insolvent  Valabdas  has  explained  that  this 
sum  of  Rs.  10,000  was  an  advance  to  the 
insolvents  and  not  to  their  firm.  It  was, 
therefore,  credited  in  their  gharoo  (private) 
books  as  paid  to  them  by  Jhamnadas  and 
then  transferred  by  them  in  their  capital 
account  in  the  shop  books  as  an  advance 
fromthem.  Exhibits  22  to  25  are  entries  in  the 
insolvents  gharoo  books.  Exhibits  2(>  and  27 
are  the  corresponding  entries  in  their  firm 
books.  The  sum  of  Rs,  10,000  was  in- 
dubitably paid  by  the  insolvents  to  their 
firm  as  part  of  the  capital  and  had  been 
duly  accounted  for.  It  has  not  been  shown 
that  the  insolvents  had  any  other  source 
where  from  to  bring  the  Rs.  10,000.  1, 
therefore,  hold  that  the  mortgage  deed  is 
for  valuable  consideration. 

An  attempt  was  made  on  behalf  of  the 
opponent  to  prove  that  at  the  time  of  the 
further  advance  of  Rs.  10,000  the  insol- 
vents had  agreed  to  execute  a  deed  of 
moitgage  in  favour  of  Jamnadas.  The  only 
evidence  on  this  point  is  t^e  statement  04: 


[92  I.  0.  1926  j 


OFFICIAL  RECEIVER   V.  LACiUJlBAT, 


the  insolvent  Valabdas.  I  have  no  hesita- 
tion in  holding  that  his  evidence  on  this 
point  is  false.  There  is  no  mention  of  the 
alleged  oral  agreement  in  the  letter,  Kx,  7-2, 
which  is  said  to  have  been  given  by  him  to 
Jamnadas  on  17th  May  1921.  The  whole 
tenor  of  this  letter  shows  that  there  could 
have  been  no  oral  agreement  between  the 
.parties  to  create  a  mortgage  prior  to  this 
letter.  It  recites  that  a  sum  of  Us.  15,000 
or  10,000  were  due  by  the  insolvents' 
firm  to  Jamnadas  and  that  the  insolvents 
had  taken  from  him  a  further  sum  of 
Rs.  10,000  which  lie  had  sent  for  from 
the  firm  of  Pribdas  Kanayalal  at  IJombtiy 
thiough  Tejbhandas  Thariomal  and  that 
about  Rs.  25,000  or  2t>,()0l)  plus  interest 
were  due  by  them  and  then  it  recites  as 
follows: 

"On  account  of  the  same  we  have  under- 
taken lo  mortgage  with  you  without  posses- 
sion the  half  portion  of  our  house  for 
Us.  24,000  in  words  twenty  four  thousand. 
Whenever  you  choose  deed  will  be  executed 
in  your  favour  and  registered.  We  have 
agreed  to  execute  fora  period  of  five  years, 
The  interest  will  be  paid  at  the  xate  of  8 
annas  per  cent.,  per  mensem.  Therefore, 
this  chit  is  given  to  you  in  writing/' 

If  there  was  a  prior  oral  agreement  one 
would  have  found  specific  mention  of  it  in 
this  letter.  There  is  no  mention  of  this 
oral  agreement  in  the  mortgage  deed  either. 
The  explanation  of  Valabdas  as  to  the 
reason  why  he  did  not  pass  this  writing  in 
favour  of  Jamnadas  at  the  time  of  the 
advance  is  preposterous,  lie  states  that  at 
that  time  it  was  arranged  that  insolvents 
were  to  give  in  mortgage  to  Jamnadas  such 
of  their  properties  as  he  might  select  and  it 
was  only  after  Jamnadas  made  his  selection 
that  he  passed  the  letter  Kx.  7-2.  Jamnadas 
was  their  uncle  and  knew  all  about  their 
property  and  this  delay  of  about  one  month 
and  24  days  to  make  the  selection  is  un- 
accountable. 

It  would  appear  from  the  evidence  that 
the  insolvents  were  in  financial  difficulties 
from  the  end  of  1920.  They  traded  in  piece- 
goods  and  had  bought  both  on  the  sterling 
and  rupee  basis  large  quantities  of  cloth 
for  forward  delivery  at  a  time  when  the 
exchange  had  risen  to  over  2  shillings  to  the 
rupee.  In  December  1920  the  exchange 
dropped  down  to  1  shilling  5  pence  thereby 
seriously  affecting  the  insolvents.  The  price 
of  cloth  purchased  on  the  rupee  basis  had 


also  gone  down  to  a  certain  extent  through 
other  causes. 

In  December  1920  they  sold  some  of  their 
property  to  Pirbdas  Kanayalal  to  keep  them 
going  and  it  appears  that  in  March  1921 
they  either  borrowed  from  Jamnadas  the 
sum  of  Rs.  10,000  or  appropriated  to 
themselves  this  sum  which 'had  been  paid  to 
them  by  Tejbhandas  Thariomal  on  account 
of  Jarnnadas,  and  used  this  amount  for  the 
same  purpose.  They  evidently  expected 
the  exchange  to  go  up  and  thx*  prices  to  rise. 
They  appear  to  have  taken  some  deliveries 
of  piecegoods  upto  April  1921  though  such 
deliveries  were  not  so  brisk.  The  exchange 
instead  of  showing  any  improvement  grew 
from  bad  to  worse  and  in  May  1921  Messrs. 
Kahn  and  Kahn  through  whom  the  insolv- 
ents had  imported  large  quantities  of  piece- 
goods  fixed  the  exchange  in  respect  of  all 
the  insolvents  goods  at  1  shilling  3|  pence. 
The  fixing  of  the  exchange  by  Messrs.  Kahn 
and  Kahn  deprived  them  of  all  chances  of 
reducing  their  estimated  losses  by  a  rise  in 
exchange.  The  estimated  loss  due  to  Messrs. 
Kahn  and  Kahn  at  this  date  was  about  a 
lac  of  rupees.  They  had  other  losses  to 
pay.  Their  attempts  to  execute  certain 
transfers  in  favour  of  their  relations  and 
particularly  their  submitting  to  an  award 
in  favour  of  their  mother  followed  by  a 
consent  decree  which  is  the  subject  matter 
of  another  application  appear  to  be  all  sub- 
sequent to  this  date.  lam  of  the  opinion  that 
the  promise  if  any  made  by  the  insolvents 
to  Jamnadas  to  secure  his  claim  was  made 
in  May  1921  and  not  at  the  time  of  alleged 
advance  of  Rs.  10,000. 

I  entertain  some  doubts  if  Ex.  7-2  is  the 
letter  handed  over  by  Valabdas  to  Jamha- 
das  at  the  time  it  purports  to  have  been 
written.  It  refers  to  a  half  share  of  the 
house  being  given  in  mortgage.  The 
insolvents  owned  at  that  time  the  whole 
house.  The  award  transferring  half  of  this 
house  to  their  mother  is  dated  July  1921. 
No  explanation  has  been  offered  why  the  in- 
solvents agreed  in  May  1921  to  mortgage 
only  a  half  share  of  the  house  to  Jamnadas 
unless  it  be  assumed  that  before  this  letter 
was  given  the  insolvents  had  agreed  to 
give  the  other  half  to  their  mother.  The 
opponent  has  lelied  on  a  recital  made  in 
the  alleged  Will  of  Jamnadas  Ex.  7-1  which 
is  said  to  have  been  made  on  2 1st  May  1921 
about  the  writing  given  to  Jamnadas.  This 
genuineness  of  this  Will  is  being  litigated 
in  another  Court  and  I  do  not  propose  to 


8 


OFFICIAL  KECBIVER  V.  L4CHMIRAI. 


(92  I.  0.  1926] 


discuss  the  evidence  as  to  its  genuineness 
in  the  present  proceedings*  Clause  5  of  this 
Will  assuming  it  to  be  genuine    does    not 
give  the    purport  of    the  letter  passed  in 
favour  of  Jamnadas  and  is  inconclusive.    It 
is  not    necessray  for    the  purpose  of  this 
case    to  hold  definitely    if   p]x,  7-2    is  the 
letter  given  to    Jamnadas,    Whether  the 
insolvents  promised  on  the   17th  May    1921 
with  Jamnadas  that  he  would  secure  to  him 
the  re- payment  of  the  debt  already  advanced 
or   if  Ex.  7-2  has  been  tsubstituted  for  an- 
other after    the    death  of    Jamnadas.      It 
would  equally  appear    that    there   was  no 
obligation  on  the  insolvents  to    execute  the 
mortgage-deed  in  favour    of  their  aunt  on 
the  1st  September  1921  and    its  execution 
without  any  pressure  from  the  aunt  amounts 
to  fraudulent  preference  within  the  mean- 
ing of  s.  54  of  the  Act.     If  the  petition  for 
insolvency  had    been  filed    within     three 
months  of  this  date,  I  would  have  had   no 
hesitation  in  declaring  it  to  be  void.    Differ- 
ent considerations  however  arise  in  the  cir- 
cumstances of  the  present  case.    There  is 
a  radical  difference  between  ss.  53  and  54. 
In  s.  54  the  Court  is  not  concerned    with 
the  motive  of  the  transferee  but  only  with 
that  of  the  debtor.    It  is  he  who  is  said  to 
have  given  the  preference  and  whether  the 
transferee  acted  in  good  faith  or  not  is  im- 
material. Where,  however,  the  three  months' 
limitation  contemplated  by  s.  54  has  expir- 
ed, it  is  open  to  the  transferee  to  prove  that 
whatever  the  motive  of  the    transferor  may 
have  been,  he  on  his  part  has  acted  in  good 
faith.    And  where  the  consideration  of  [he 
transfer  is  a  past  debt,  the  transferee  stands 
in  a  better  position  than  otherwise.  He  has  his 
own  interests  to  serve  and  owes  no  duty  to 
the  other  creditors  to  protect  their  interests. 
He  in  the  absense  of  any  statutory  limitations 
imposed  by  the  Law  of  Bankruptcy,  is  as 
much  at  liberty  to  secure  there-payment  of 
his  debt  by  superior  diligence  as  by  accept- 
ing  a  voluntary  preference    provided  he 
goes  no  further  than  what  is  necessary  to 
serve  his  own    purpose.    See  the  observa- 
tions of  Mukerji,  J.,  in  Hakim  Lai  v.  Moosha- 
harSahu(6).     What  then  are   the  limita- 
tions imposed  by  the  Law  of  Bankruptcy 
on  the  rights  of  the  creditor  to  secure  to 
himself  the  re-payment  of  a  past    debt? 
Where  he  has  secured  an  advantage  by  his 
superior  diligence,  it  would  appear  that  he 
cannot  be  deprived  of  such  advantage  either 

(6)  34  C.  999  at  p.  1018;  11  C.  W.  N    889;  C  C.  L.  J. 
410. 


under  s.  53  or  s.  54  of  the  Act.  Where  he  has 
not  secured  it    by  such  superior  diligence 
but  has  accepted  a  preference  voluntarily 
made  by  his  debtor,  he  may  not  retain  it, 
if  an  insolvency  petition   is  filed  for  the 
adjudication   of  the    debtor  within  three 
months  of  such  preference.   It  would,  there- 
fore, follow  that  if  the  three  months  have 
elapsed,  it  is  open  to  the  creditor  to  say  that 
in  accepting  such  preference    he  has    only 
secured  to  himself  his  own  interests,   and 
to  rely  on  the    presumption  arising  there- 
from to   prove  his  good  faith.    The  onus 
then  shifts  on    to  the  Official  Receiver  to 
prove  other  circumstances  to  warrant  an 
inference  that  the    act  of  the  creditor  in 
accepting  a  preference    was  an  act  of  bad 
faith  according  to  the  Law  of  Bankruptcy, 
On  behalf  of  the  Official  Receiver  an  at- 
tempt was  made  to  show    that  <there  were 
other  circumstances    in  the  present  case  to 
rebut    the  inference  arising  in  favour  of 
the    opponent  as  a  creditor.    In  the    first 
place  it  was  said    that  the  property  mort- 
gaged to  him  was  substantially  the  whole 
of  the  property  by  the  insolvents,  and  it 
was  urged  that  as  such  it  was    an    act  of 
bankruptcy  and  void  as  not  having  been 
accepted  in  good  faith.  Reliance  was  placed 
on  the  recent  case  of    the   Official  Assignee 
of  Bengal  v.    Yokohama  Specie  Bank  Ltd., 
(7).    Though  I  afforded  an  opportunity  to 
the  Official    Receiver  after  he  had  closed 
his  case  to  prove  ,that  this   property  was 
substantially  the   whole  of  the  insolvents' 
property,  he  has    failed    in  his    attempt. 
Admittedly  the  insolvents  had  another  pro- 
perty at  Karachi  which  was  mortgaged  by 
them   with    Messrs.    Tattersall    &   Co.  for 
Rs.  16,000  on    the    22nd  February  1922. 
They   had  a   certain    amount  on  stock-in- 
trade,  and  it  was  open  to  the  Official  Recei- 
ver to  show  what  its  value    was.    He  has 
not  done  so.    The  insolvents    have,  on  the 
other  hand,  put  in  certain  statements  to 
prove  that  they  took  delivery  of  a  consider- 
able   quantity    of    piecegoods  after    the 
mortgage- deed.    The  opponent  is  a  woman, 
and  it  cannot  be  assumed  without  further 
proof  that  she  knew  that  her  nephews  were 
•:  •  :'i:i: ji:  u  to  her  all  that  they  possessed. 
li  Ex.  7-J  i$   genuine,    and  the  mortgage- 
deed  was   executed  in   pursuance   of  the 
promise  made  by  the  insolvents  to  Jamna- 
das, it  would  appear  that  at  that  time  the 
insolvents  possessed  one  more  immoveable 


(7)  87  Ind.  Cas. 
(C.;  640, 


0.  W.  N.  374;  (1925)  A,  I  R, 


[92  I.  0.  1826]        JAII8HBDJI  NAOftOJI  GAMADIA  *.  MAGANLAL  BANKBTLAL  &  CO. 


property  which  they  morl  inure1 1  with  Messrs 
Hiranand  Naraindas  for  Ks.  15,000  and 
had  also  other  considerable  assets. 

It  is  no  doubt  true  that  after  May  1921, 
the  insolvents  at  no  time  possessed  suffi- 
cient assets  to  pay  off  their  creditors  in 
full,  and  though  I  have  a  shrewd  suspicion 
that  the  object  of  the  insolvents  to  attempt 
to  carry  on  their  business  for  over  a  year 
after  they  were  to  their  knowledge  hopeless- 
ly gone,  was  to  benefit  some  of  their  rela- 
tions and  to  make  it  difficult  for  the 
Official  Receiver  to  take  possession  of  all 
the  property  which  would  otherwise  have 
been  available  for  distribution,  I  find  it 
difficult  to  hold  that  the  incumbrance  in 
favour  of  the  opponent  falls  within  the 
principle  enunciated  in  the  Calcutta  case. 

It  was  further  alleged  on  behalf  of  the 
Official  Receiver  that  as  the  opponent  had 
no  issue,  the  object  of  the  mortgage-deed 
was  to  secure  to  the  insolvents  the  advantage 
of  the  transfer,  the  opponent  holding  the 
property  on  their  behalf  as  a  benamidar.  A 
considerable  amount  of  argument  was  ad- 
dressed at  the  Bar  with  regard  to  the  vali- 
dity of  the  alleged  Will  of  Jamnadas,  and 
especially  the  provision  in  respect  of 
"dharam".  It  is  however  not  necessary  for 
me  to  go  into  the  question  either  of  the 
validity  of  the  Will  or  of  the  bequest  to 
"dharam"  as  it  would  appear  that  the  pos- 
session of  the  opponent  de  hors  the  Will  is 
even  better.  As  a  Hindu  widow  she  is 
entitled  to  an  absolute  estate  in  the  cash 
left  by  her  husband.  I  am  not,  however, 
prepared  to  hold  in  the  absence  of  any  evi- 
dence on  the  point  that  the  mortgage-deed 
was  executed  in  favour  of  the  opponent  as 
a  benamidar  for  the  insolvents.  Admittedly 
Jamnadas  has  left  two  brothers  who  are 
both  alive,  and  it  cannot  now  be  said  whe- 
ther on  her  death,  the  property  left  by  her 
would  vest  in  the  insolvents  or  in  the  bro- 
thers of  Jamnadas.  This  will  depend  on 
who  are  alive  at  the  time  the  inheritance 
opens  up  on  her  death.  It  is  to  be  regretted 
that  I  should  have  arrived  at  this  conclu- 
sion which  deprives  the  creditors  of  their 
right  to  claim  a  rateable  distribution  out  of 
the  half  share  of  the  residential  house  mort- 
gaged to  the  opponent.  The  conduct  of  the 
insolvents  in  continuing  to  carry  on  their 
business  from  certain  mala  fide  motives 
requires  a  separate  consideration  and  can- 
not be  made  a  ground  for  setting  aside  the 
incumbrance  in  the  absence  of  proof  of  bad 
faith  on  the  part  of  the  opponent.  TUis  ap- 


plication, therefore,  fails  and  is  dismissed. 
In  the  circumstances  of  this  case;  I  make 
no  order  as  to  costs.  If  the  Official  Receiver 
wishes  to  appeal  against  this  decision,  I 
shall  readily  grant  him  the  required  per- 
mission, 
p.  B.  A.  Application  dismissed. 


BOMBAY  HIGH  COURT. 

ORIGINAL  CIVIL  JURISDICTION  APPEAL 

No.  95  OF  1^24. 
February  27,  1925. 

Present: — Sir  Norman  Macleod,  KT., 
(1hief  Justice,  and  Mr.  Justice  Coyajee. 
JAMSIIEDJI  NAOROJI  GAMADIA— 
DEFENDANT — APPELLANT 

versus 

MAGANLAL  BANKEYLAL  &  CO.— 
PLAINTIFFS—RESPONDENTS. 

Contract  Act  (IX  of  1872),  s.  178  Shares  handed  over 
•for  purpose  of  raising  money— Pledge  of  shares — 
Misrepresentation,  shares  obtained  by— Pledgee,  rights 
of — Fraud,  meaning  of— "Goods,"  whether  includes 
share  certificates 

A  person  who  without  enquiry  takes  from  another 
an  instrument  signed  in  blank  by  a  third  party  and  fills 
up  the  blanks  cannot,  even  in  a  case  of  a  negotiable 
instrument,  claim  the  benefit  of  being  a  purchaser  for 
value  without  notice  so  as  to  acquire  a  greater  right 
than  the  person  from  whom  he  himself  received  the 
instrument,  [p.  12,  col,  21 

France  v.  Clark,  (1884)  26  Ch  D  257,  53  L.  J.  Ch. 
585,  50  L  T  1;  32  W.  R  466,  referred  to 

The  obtaining  of  goods  or  documents  by  fraud  of 
which  the  proviso  to  s  178  of  the  Contract  Act  speaks 
must  mean  obtaining  possession  by  such  a  trick  or 
fraud  as  excludes  real  consent  and,  therefore,  cannot  be 
the  foundation  of  any  other  contract,  [p.  13,  col  1  ] 

Defendant  No.  1  who  was  a  partner  in  a  firm  which 
had  b^en  dissolved  represented  to  defendant  No.  2 
that  his  liabilities  in  respect  of  his  partnership  in  the 
dissolved  firm  did  not  exceed  a  certain  sum  and  in- 
duced defendant  No  2  to  enter  into  a  partnership 
with  him  for  the  purpose  of  starting  a  new  business. 
Defendant  No.  2  handed  over  shares  in  certain  com- 
panies to  defendant  No.  1,  together  with  transfer 
forms  with  blank  transfers  duly  signed  by  him,  and 
authorized  the  first  defendant  to  borrow  money  on  the 
shares  for  the  purpose  of  the  new  business  to  be 
started  by  them.  The  first  defendant  pledged  the 
shares  with  the  plaintiff  and  utilized  the  proceeds  to 
discharge  his  liabilities  as  a  partner  in  the  dissolved 
firm  In  a  suit  by  the  plaintiff  to  enforce  the  pledge 
of  the  shares 

Held,  (1)  that  the  first  defendant  having  been  autho- 
rized by  the  second  defendant  to  pledge  the  shares 
it  rould  not  be  said  that  he  had  obtained  possession 
of  the  shares  by  means  of  an  offence  or  fraud  ;  [ibid  ] 

(2)  that  at  the  most  it  could  only  be  said  that  the 
first  defendant  induced  the  second  defendant  to 
negotiate  with  him  with  regard  to  starting  a  new- 
business  by  misrepresenting  the  amount  of  his 


10 


JAM8HEDJT  NAOROJI  0AM ADU  V.  MAGANLAL  UA^KEYLAL  &  CO.      [92  I.  CV1926J 


ties  in  Ins  old  business  and  that  such  a  misrepre- 
sentation would  enable  tho  second  defendant  to  avoid 
the  agi  cement  to  stait  a  new  business  and  fo  teeover 
the  shares  entrusted  to  the  ihst  defendant  fnr  the 
purpose  o£  raising  money  for  that  business;  [ibid] 

(3)  thai  the  misrepresentation,  however,  Imd  not  the 
effect  of  rendering  the  pledge  of  the  shares  with  the 
plaintiff  before  the  rescission  of  the  contract  nuahd 
and  that  the  plaintiff  was,  therefoie,  entitled  to  enfoiee 
his  pledge  [ibid  j 

Per  Coyajee,  J  — The  term  "goods"  used  in  s  178 
of  the  Contract  Act  is  wide  enough  to  include  share 
certificates  [p  13,  col  2.] 

Fazal  v  Mangaldas,  66  Ind  Cas  726,  16  H  48!)  at  p 
502,  23  Bom,  L.  R.  1144.  (1922)  A  I  R  (H  )  303,  fol- 
lowed. 

Appeal  from  the  decision  of  Mr,  Justice 
Kemp. 

Mr.  Kanga,  Advocate-General,  (\vith  him 
Mr.  Khergamralla),  for  the  Appellants. 

Sir     Thomas    Strangman,   (with  him  Mr. 
Kania,  for  Respondent  No  1 
JUDGMENT, 

Macleod,  C.  J.— The  plaintiffs  filed 
tin's  suit  seeking  to  recover  the  sum  of 
Rs.  20,671-9-0  from  the  first  defendant,  and 
praying  for  a  declaration  that  the  pledge  of 
the  shares  mentioned  in  Ex.  E  to  the  plaint 
was  binding  on  the  second  defendant,  and 
that  the  second  defendant  had  no  right  to 
prohibit  the  transfer  of  the  said  shaies  to 
the  name  of  the  plaintiffs.  They  also  prayed 
that  they  might  be  authorised  to  sell  the 
shares  mentioned  in  Ex.  D  and  appropriate 
the  net  proceeds  towards  part  satisfaction 
of  the  decree  to  be  passed  in  their  favour. 

Plaintiffs  alleged  that  the  first  defend- 
ant had  borrowed  certain  amounts  from 
them  on  security  of  certain  shares.  On  April 
12,  1921,  it  was  found  that  Rs.  38,000 
were  due  by  the  first  defendant  and  the  first 
defendant  passed  a  writing  to  the  plaintiffs 
whereby  he  promised  to  pay  the  plaintiffs 
the  said  sum  of  Rs.  38,000  on  demand 
with  interest,  and  gave  details  of  the  shares 
which  were  to  remain  as  security.  There- 
after the  plaintiffs  had  received  a  certain 
amount  of  interest  on  certain  shares  and  also 
sold  certain  shares  under  thefinstructions  of 
the  first  defendant.  On  making  up  the 
account  the  amount  of  Rs.  26,671-90  was 
found  due  to  the  plaintiffs  against  which 
the  plaintiffs  had  in  their  possession  the 
shares  mentioned  in  Ex.  D  to  the  plaint, 
out  of  which  fourteen  shares  of  the 
Emperor  Edward  Mills  and  one  share  of  the 
Nagpur  Mills  stood  in  the  name  of  the  second 
defendant.  The  plaintiffs  had  in  their 
possession  theshaie  certificates  and  transfer 
forms  signed  by  the  second  defendant,  who 
had  given  notice  to  the  companies-  con- 


cerned not  to  transfer  tha  shares  to  any 
other  person.  The  first  defendant  had 
failed  to  pay  the  sum  of  Rs  26,671-9-0,  and 
hence  the  suit  was  filed  claiming  the  relief 
abovementioned. 

The  first  defendant  filed  a  written  state- 
ment asking  for  an  account  but  at  the 
hearing  he  admitted  the  claim. 

The  second  defendant  in  his  written 
statement  alleged  that  in  April  1920  the 
first  defendant  had  induced  him  to  join  the 
first  defendant  in  cotton  business  as  financ- 
ing partner,  representing  that  he  only  owed 
Rs.  16,000  on  the  transaction  of  the  Firm  of 
Framioze  Boga  &  Co.  of  which  he  had 
been  a  partner  and  which  had  been  dis- 
solved. Relying  on  the  representation  the 
second  defendant  agreed  to  become  a  part- 
ner' with  the  first  defendant  upon  the  terms 
of  two  writings  dated  April  24,  1920,  and 
as  the  second  defendant  had  not  sufficient 
cash  it  was  arranged  that  he  should  hand 
over  to  the  first  defendant  certain  shares 
with  blank  transfers  signed  by  him  on 
which  the  first  defendant  should  be  at 
liberty  to  borrow  money  for  the  purposes 
of  the  said  business.  The  aggregate  value 
of  the  shares  was  Rs.  2,03,839  and  amongst 
them  were  fourteen  shares  of  the  Emperor 
Edward  Mills  and  one  share  of  the  Nagpur 
Milh.  Thereafter  the  second  defendant 
discovered  that  the  first  defendant's  liabili- 
ties in  the  Firm  of  Framroze  Boga  &  Co., 
far  exceeded  Rs.  16,000  and  that  he  had 
employed  the  money  raised  on  the  security 
of  the  said  shares  of  the  second  defendant 
in  paying  off  those  liabilities.  When  the 
second  defendant  threatened  the  first  de- 
fendant with  proceedings  he  executed  a 
writing  in  favour  of  thw  second  defendant, 
on  May  20,  1920  and  on  January  28,  1921, 
executed  a  •  • '  r  :.r k  f  ids  property  known 
as  the  U13h?  •  :  \  l<  ,.!  5 ism11  to  secure  re-pay- 
ment of  one  lakh. 

Accordingly  the  second  defendant  con- 
tended that  the  first  defendant  had  obtain- 
ed possession  of  the  said  shades  by  means 
of  an  offence  and  fraud,  so  that  the  pledge 
of  the  shares  in  favour  of  the  plaintiffs  by 
the  first  defendant  was  not  valid  and  bind- 
ing on  the  second  defendant 

By  way  of  counter -claim  he  prayed  that 
the  plaintiffs  might  be  ordered  to  return 
the  shares  to  him. 

The  following  issues  were  raised  at  the 
trial: — 

(1)  Whether  the  suit  shares  were  handed 
over  to  the  first  defendant  under  the  cir- 


[92  I.  0.  1926J     JAMSHEDJI  NAOROJI  OAMADIA  V.  MAGANLAL  BANKBYLAL  &  CO. 


11 


cumstances  mentioned  in  para.  3    of   the 
written  statement  ? 

(2)  Whether  the  first  defendant   obtained 
possession  oE  the   shares  by  means  of  an 
offence  and  fraud  ? 

(3)  Whether   the  pledge  alleged  by  the 
plaintiffs   was  valid   and   binding    on   the 
second  defendant  ? 

(4)  Whether  second  defendant  was  entitl- 
ed to  his  counter-claim? 

The  Trial  Judge  believed  the  story  of  the 
second  defendant  that  first  defendant  told 
him  that  the  liabilities  of  the  old  firm 
amounted  to  Rs.  16,000  only,  but  was  of  the 
opinion  that  the  second  defendant  was 
willing  that  the  money  to  be  raised  on 
pledge  of  the  shares  was  to  be  utilised  in 
paying  off  that  liability  besides  helping  to 
start  the  new  business 

On  the  second  issue  he  decided  that  the 
first  defendant  obtained  the  shares  by  a 
material  misrepresentation  of  fact,  but  that 
as  the  interests  of  a  bona  fide  pledgee  under 
s.  178  of  the  Indian  Contract  Act  had  in- 
tervened, the  second  defendant  could  not 
be  placed  in  the  status  'quo  ante.  Con- 
sequently he  held  that  the  pledge  was  valid 
and  binding  on  the  second  defendant  who 
was  entitled  to  redeem  the  shares  on  pay- 
ment of  the  amount  for  which  they  were 
pledged. 

A  fifth  issue  had  been  raised  whether  the 
second  defendant  had  not  ratified  all  the 
acts  of  the  first  defendant  whereby  he  was 
estopped  from  disputing  his  liability  to  the 
plaintiffs. 

The  Judge  held  that  the  mere  fact  that 
he  took  further  security  from  the  first  de- 
fendant did  not  amount  to  a  ratification. 

The  second  defendant  has  appealed. 
"•'  His*main  ground  of  appeal  was  that  the 
learnedJJudge  should  have  held  that  the  first 
defendant  had  obtained  possession  of  the 
shares  from  the  appellant  by  means  of  an 
offence  or  fraud. 

He  contends  that  first  defendant  falsely 
represented  that  his  old  debt  was  only  Rs. 
16,000  and  that  if  he  had  known  that  the 
debt  amounted  to  a  very  much  greater  sum 
he  would  not  have  given  the  first  defendant 
the  shares  to  pledge. 

What  the  appellant's  case  against  the  first 
defendant  was  on  January  25,  1921,  is  made 
'clear  from  his  Solicitors'  letter  of  date,  Ex. 
No,  2.  After  referring  to  the  writing  of 
April  24,  1920,  whereby  first  defendant 
agreed  to  execute  a  mortgage  in  respect  of 
two  of  his  properties  in  favour  of  the  second 


defendant  whenever  called  upon  to  do  so  for 
securing  the  moneys  to  be  advanced  and  the 
fact  that  second  defendant  handed  over 
certain  shares  with  blank  transfer  forms 
signed  by  him  to  enable  the  first  defendant 
to  raise  moneys  thereon  for  financing  the 
new  business  which  was  to  be  started,  he 
complains  that  the  moneys  so  raised  were 
utilised^for  liquidating  the  private  debts  of 
the  first  defendant  in  abuse  of  the  confi- 
dence.reposed  on  him  by  the  second  defend- 
ant without  his  knowledge  and  consent 
so  that  the  new  business  was  never  started. 
On  second  defendant  discovering  this  he 
wanted  to  prosecute  the  first  defendant  but 
he  promised  to  redeem  the  shares  very 
shortly.  As  the  first  defendant  had  neither 
redeemed  the  shares  nor  executed  the  mort- 
gage though  he  had  given  a  fresh  writing 
on  August  10,  ly^O  (Ex.  2),  he  was  called 
upon  to  redeem  the  shares  within  twenty- 
four  hours  or  pay  the  value  thereof  and  in 
default  proceedings  either  civil  or  criminal 
would  be  taken  against  him.  There  is  no 
suggestion  in  that  letter  that  the  original 
intention  was  that  first  defendant  should  pay 
off  old  debts  to  the  extent  of  Rs.  16,000  out 
of  the  amountlborrowed  on  the  shares  or  that 
second  defendant  would  be  entitled  to  give 
notice  to  the  different  companies  not  to  re- 
gister any  transfers. 

In  his  evidence  the  second  defendant 
said  :  — 

"Franiroze  Boga  was  dissolved  in  April 
1920.  First  defendant  proposed  I  should 
finance  his  business  after  the  dissolution. 
I  said  I  had  shaies  and  he  could  raise  money 
on  them  to  continue  a  business  with  me  as 
partner.  He  said  the  existing  liabilities  were 
Rs.  16,000.  My  shares  were  not  to  go  towards 
that.  I  would  not  have  given  those  shares 
to  the  first  defendant  if  1  had  known  the 
liabilities  were  Rs.  8U,000.  About  August 
1920  I  came  to  know  he  had  raised  monies 
on  my  shares  and  used  them  for  his  own 
purposes..  Then  I  got  the  writing  of  August 
10,  1^20,  executed  by  first  defendant.  1 
also  got  the  first  defendant  to  execute  a 
promissory  note  for  Rs.  1,30,000  on  April  30, 
1920,  On  January  28,  1921, 1  took  a  second 
mortgage  of  the  first  defendant's  Bombay 
building.  I  threatened  first  defendant  with 
legal  proceedings  (that  was  by  the  letter 
of  January  25,  1921),  and  he  gave  me  the 
seconc  ••  'In1  .,- 

On  \t  ::.:!;,  i 920,  the  second  defendant 
had  given  the  first  defendant  a  writing  Ex. 
F,  authorising  him  to  borrow  monies  on  the 


12 


JAMSHEDJI  NAOROJI  OAMADIA  V.  MAOANL.AL  DANKBY1AL  &  OO.  .  [92  I.  0.  1926] 


shares  given  to  him  either  by  making  badlas 
or  by  overdrawing  monies  by  depositing  the 
said  shares  with  some  Bank  or  with  big 
Shroffs. 

Cross-examined  about  that  document  he 
said  : — 

11 1  did  not  understand  when  I  signed  it 
that  I  was  giving  first  defendant  unreserved 
liberty  to  pledge.  The  letter  is  plain  enough. 
I  say  it  did  not  authorise  first  defendant  to 
pledge  the  shares  for  any  purpose  he  want- 
ed. First  defendant  said  he  had  to  dis- 
charge liability  of  Rs.  16,000  and  he  wanted 
money  for  that  also.  The  shares  of  value 
of  those  I  deposited  were  to  finance  this 
business  also.  First  defendant  got  these 
shares  from  me  by  fraud  viz.,  obtaining 
them  for  partnership  and  thus  misapplying 
them.1' 

It  is  difficult  owing  to  these  contradictory 
statements  to  arrive  at  any  satisfactory  con- 
clusion whether  first  defendant  was  authori-  . 
sed  or  not  to  spend  out  of  the  monies  bor- 
rowed on  the  shares,  Rs.  16,000  or  any 
other  sum  towards  discharging  his  own 
liabilities.  It  is  true  that  there  is  some 
foundation  for  the  allegation  to  this  effect 
of  the  second  defendant  in  the  writing  Ex. 
6  given  by  the  first  defendant  to  the  second 
defendant  on  April  24,  1920,  bat  against 
that  there  is  the  statement  of  the  second 
defendant  in  his  evidence  that  his  shares 
were  not  to  be  used  by  the  first  defendant 
for  raising  money  to  pay  off  his  own  liabi- 
lities. The  first  defendant  said  he  did  not 
tell  the  second  defendant  his  private  liabili- 
ties were  Rs.  16,000.  Second  defendant  did 
not  ask  what  were  the  liabilities  of  the 
firm  the  first  defendant  was  continuing.  The 
shares  were  not  given  for  the  new  business. 
They  were  given  so  that  he  could  raise 
margin  money.  Second  defendant  had  given 
him  shares  before  by  way  of  margin  money. 
On  his  own  confession  the  first  defendant 
was  guilty  of  misappropriation  of  the  monies 
borrowed  on  the  shares.  The  second  defend- 
ant's case  cannot  stand- higher  than  this: 
"I  know  the  first  defendant  wished  to  wind 
up  his  old  business  He  told  me  the  liabili- 
ties of  that  business  were  Rs.  16,000  and  I 
was  willing  that  monies  should  be  raised 
to  pay  off  those  liabilities  and  provide  the 
capital  for  our  partnership  business.  If  I 
had  known  that  first  defendant's  liabilities 
were  Rs.  80,000  I  would  not  have  con- 
sented to  start  a  new  business  with  him, 
and  1  would]  not  have  handed  over  the 
shares,1^ 


But  in  my  opinion  the  case  set  up  in 
Ex.  2  is  the  right  one  and  that  the  second 
defendant  gave  the  shares  to  the  first 
defendant  to  raise  money  thereon  for  th* 
new  business. 

The  question,  therefore,  is,  as  propounded 
by  the  Advocate- General  whether  the  per- 
sons who  advanced  money  to  the  first  defend- 
ant on  the  shares  standing  in  the  name  of 
the  second  defenctant  were  bound  to  make 
inquiries  as  to  the  first  defendant's  title  to 
deal  with  the  shares,  or  whether  the  second 
defendant  by  putting  into  the  hands  of 
the  first  defendant  his  shares  with  blank 
transfers  signed  by  him  was  estopped  from 
disputing  the  title  of  a  holder  of  the  shares 
and  transferees  who  received  them  in  good 
faith  from  the  first  defendant  and  advanced 
money  to  the  first  defendant  on  security  of 
the  shares. 

It  is  impossible  to  lay  down  any  general 
rule.  The  answer  to  the  question  must 
depend  on  the  facts  of  the  case.  The  de- 
cision in  France  v.  Clark  (1)  is  not  of  much 
assistance.  France,  the  registered  holder 
of  certain  shares,  deposited  the  certificates 
with  Clark  as  security  for  £.  150  and  gave 
him  a  blank  transfer  signed  by  himself. 
Clark  deposited  the  shares  and  the  transfer 
with  a  third  party  as  security  for  £.  250. 
The  third  party  filled  in  the  transfer  in 
his  own  name  and  sent  it  in  for  re- 
gistration. It  was  held  he  had  no 
title  against  France  except  to  the  extent 
of  what  was  due  from  France  to  Clark.  A 
person  who  without  inquiry  takes  from  an- 
other an  instrument  signed  in  blank  by  a 
third  party  and  fills  up  the  blanks  cannot, 
even  in  the  case  of  a  negotiable^instrument, 
claim  the  benefit  of  being  a  purchaser  for 
value  without  notice  so  as  to  acquire  a 
greater  right  than  the  person  from  whom 
he  himself  received  the  instrument.  Clark 
was  regarded  in  the  light  of  an  equitable 
mortgagee  of  the  shares.  The  documents 
themselves  showed  that  Clark  was  not  the 
owner  and  there  was  no  evidence  of  a 
mercantile  usage  that  the  holders  of  such 
documents  were  treated  as  having  the  right 
to  transfer.  Blank  transfers  with  share 
certificates  were  not  negotiable  instruments. 
In  this  case  the  first  defendant  was  the 
agent  of  the  second  defendant  to  raise 
money  on  the  shares.  I  cannot  agree  with 
the  learned  Judge  when  ha  says  the  first 
defendant  wa*  a  principal.  The  letter  of 

(1)  (1884)  26  Oh.  D,  257;  53  I,.  J.  .Ch.  585;  50  I.,  T, 
1;  32  W.  R,  466. 


I.  0.  1926]     JAMSHEDJI  NAOROJI  GAMAttIA  V.  MAGASLAl,  BANKETLAL  &  CO. 


April  24,  1920,  is  clearly  an  authority  to  the 
first  defendant  to  raise  money  on  the  shares 
on  behalf  of  the  second  defendant,  the 
moneys  to  he  utilised  according  to  the  terms 
of  Ex  2  in  the  business  to  be  started  by 
defendants  Nos.  1  and  2  as  partners.  The 
first  defendant  being  authorised  to  pledge 
the  shares  it  cannot  be  said  that  he  had 
obtained  possession  of  them  by  means  of  an 
offence,  or  fraud.  At  the  most  it  may  be 
said  that  he  induced  the  second  defendant 
to  negotiate  with  him  with  regard  to  start- 
ing a  new  business  by  misrepresenting  the 
amount  of  his  liabilities  in  his  old  business. 
Such  a  misrepresentation  would  enable 
the  second  defendant  to  avoid  the  agree- 
ment to  start  the  new  business  and  to  recover 
the  shares  entrusted  to  the  first  defendant 
for  the  purpose  of  raising  money  for  that 
business.  The  question  whether  the  pledge 
of  the  shares  before  the  rescission  of  the 
contract  would  be  invalid  is  considered  by 
Messrs.  Pollock  and  Mulla  in  their  notes  to 
s.  178of  the  Indian  Contract  Act,  at  page  639. 
The  authors  think  that  the  use  of  the  term 
''fraud"  in  juxtaposition  to  offence  would 
seem  to  indicate  that  it  is  confined  to  the 
substantive  wrong  of  deceit.  If  possession 
of  goods  obtained  under  a  contract  voidable 
on  the  ground  of  fraud  is  possession  obtain- 
ed by  fraud  a  pledge  by  the  possessor 
could  be  invalid  even  before  the  rescission 
of  the  contract  although  an  out  and  out 
sale  would  be  valid  under  s.  108.  I  agree 
with  their  conclusion  that  it  was  not  the 
intention  of  the  Legislature  to  depart  from 
the  Common  Law,  and  that  the  obtaining 
of  goods  or  documents  by  fraud  of  which 
the  proviso  to  s.  178  speaks  must  mean 
obtaining  possession  by  such  a  trick  or  fraud 
as  excludes  real  consent  and,  therefore,  can- 
not be  the  foundation  of  any  contract.  The 
fraud,  if  any,  committed  by  the  first  defend- 
ant was  not  committed  in  obtaining  posses- 
sion of  the  shares  but  in  his  disposition 
of  the  moneys  obtained  by  pledging  them. 

Even  assuming  that  the  pledgee  on  being 
asked  to  lend  money  on  the  shares  with 
blank  transfers  standing  in  the  name  of  the 
second  defendant  was  put  on  inquiry  with 
regard  to  the  title  of  the  first  defendant, 
he  would  have  been  shown  the  letter  of 
authority  signed  by  the  second  defendant. 

I  think,  therefore,  the  decision  of  the 
learned  Judge  was  right  and  that  the  appeal 
should  be  dismissed  with  costs. 

Coyajee,  J«— I  agree  in  holding  that 
the  pledge  of  the  share  certificates  created 


by  the  first  defendant  in  favour  of  the  plaint- 
iffs is  valid:  s.  178,  Indian  Contract  Act.  The 
term  "goods"  used  in  that  section  is  very 
wide  (s.  76  of  the  said  Act),  sufficiently 
wide  to  include  share  certificates  [Fazal  v. 
Mangaldas  (2).]  In  my  opinion  the  evidence 
in  this  case  which  is  fully  discussed  in  the 
judgment  of  the  learned  Chief  Justice, 
makes  it  clear  that  the  first  defendant  had 
not  obtained  those  certificates  from  the 
second  defendant  by  means  of  "fraud"  with- 
in the  meaning  of  that  expression  as  used 
in  the  proviso  to  s.  178.  The  proviso,  it 
would  seem,  does  not  exclude  from  the 
operation  of  the  section  the  case  of  goods 
obtained  under  a  contract  voidable  on  the 
ground  of  fraud.  For  it  would  be  anomalous 
that  although  a  person  who  has  obtained 
possession  of  goods  under  a  contract  void- 
able at  the  option  of  the  other  party  to  it 
can  transfer  full  ownership  of  these  goods 
before  the  contract  is  rescinded  (Exception 
3  to  s.  108),  he  cannot  make  a  valid  pledge 
at  all  of  the  same  goods. 

In  this  case  the  second  defendant  handed 
over  the  share  certificates  and  transfer 
forms  duly  signed  to  the  first  defendant  on 
April  24, 1920.  On  that  day  twoMocuments 
(Ex.  E  and  Ex.  No.  6)  were  exchanged  be- 
tween them.  The  one  passed  by  the  second 
defendant  gave  the  first  defendant  author- 
ity to  raise  moneys  on  the  pledge  of  those 
certificates  in  language  both  plain  and 
wide.  It  says  : — '  I  authorise  him  and  give 
my  consent  to  borrow  monies  either  by 
making  badlasor  by  overdrawing  monies  by 
depositing  the  said  shares  with  some  Bank 
or  big  shroffs"  The  material  statements  in 
the  other  document  are: — "With  regard  to 
the  cotton  brokerage  business  which  I  <have 
been  carrying  on... in  the  name  of  Messrs. 
Framroze  Boga  and  Company  and  with  re- 
gard to  the  current  business  of  the  said 
brokerage  which  I  have  taken  upon  myself 
in  the  said  firm  you  have  this  day  (given) 
to  me  certain  shares... to  enable  me  to 
borrow  monies  thereon... For  the  monetary 
assistance  which  you  have  given  to  me 
1  bind  myself  to  make  an  agreement 
with  you  as  soon  as  the  accounts  of 
my  old  customers  are  settled."  The 
agreement  here  referred  to  was  a  contem- 
plated partnership  agreement  between  the 
parties.  It  seems  to  me  that  the  effect  of 
the  evidence  of  the  second  defendant  read 
with  these  documents  and  with  his  attor* 

(2)  66  Ind.  Gas.  726;  46  B.  489  at  p.  502;  23  Bom.  L. 
L,  R,  1144;  (1022)  A.  I.  R.  (B.)  303. 


14 


PfcAREY  LAL  V.   ALLAHABAD  BANK  LTD. 


ney's  letter  of  January  25,  1921,  (Ex,  No.  2), 
is  this  ;  Not  that  the  pledge  of  the  share 
certificates  was  unauthorised,  but  that  the 
monies  so  borrowed  were  wrongly  applied 
by  the  tirst  defendant  to  unauthorised  uses. 
But  with  this  the  plaintiffs  have  no  concern. 
They  have  acted  in  good  faith  in  making 
the  loan  on  the  pledge  of  the  share  certi- 
ficates. 

In  my  opinion  the  decree  of  the  learned 
Judge  is  right  and  this  appeal  must  fail. 

z.  K.  Appeal  dismissed. 


ALLAHABAD  HIGH  COURT, 

EXPIATION  FIRST  CIVIL  APPEAL  No.  170  OF 

1925. 

Decembers,  1925. 

Present:— Mr.  Justice  Mukerji. 

PEAREY  LAL— PURCHASER—APPELLANT 

versus 

THE  ALLAHABAD  BANK  LTD.,  MEERUT 
— DECREE  HOLDER  AND  Babu  BAIJNATH 
PRASAD  AND  ANOTHBB— JUDGMENT- 
DEBTORS  —RUSPOMDB  VTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  V,  0  XXI, 
r  58~Mon<>y~decrce-  Attachment  of  property —Objec- 
tion by  transferee  from  jiidgmenl-debtoi — Decision, 
finality  of—Appeal,  whether  lies—Property  attached 
being  decree  in  favour  of  judgment-debtor,  effect  of -- 
Execution  of  decree  -Insolvent  judgment-debtor- - 
Question  of  title  between  scheduled  creditor*  decision 
of —Revision -Provincial  Insolvency  Act  (V  o-f  19^0), 
s.  50. 

Where  an  objection  is  raised  by  a  transferee  from 
the  judgment-debtor  to  attachment  of  the  property  in 
execution  of  a  money-decree,  and  the  question  arises 
whether  the  transfer  in  favour  of  the  objector  is  good 
or  not,  the  question  relates  to  the  title  to  the  property 
sought  to  be  attached,  and  comes  within  the  purview 
of  O.  XXI,  r.  58,  0.  P.  0  ,  and  the  decision  is  final, 
subject  to  the  result  of  any  suit  that  might  be  in- 
stituted, and  is  not  open  to  appeal.  The  fact  that  the 
property  attached  is  a  decree  makes  no  difference,  (p. 
15,  col.  l.j 

There  is  nothing  in  s  50  of  the  Provincial  In- 
solvency Act  which  says  that  any  question  of  title 
raised  between  two  scheduled  creditors  will  be  decided 
by  the  Insolvency  Oouit,  and  a  decision  of  such  ques- 
tion by  the  Execution  Court  is  not  open  to  revision 
Ip  15,  col.  2.] 

Execution  first  appeal  from  a  decree  of 
the  Subordinate  Judge,  Meerut,  dated  the 
12th  of  December  1924. 

Dr.  K .  N.  Katju,  for  the  Appellant. 

Mr.  Shambhu  Nath  Seth  for  Mr.  P.  L. 
Banerji,  for  the  Respondent. 

JUDGMENT.— This  is  an  execution 
first  appeal  and  has  arisen  under  the 
following  ^circumstances.  A  certain  suit 


[92  I.  0. 1926] 

No.  428  of  1922  w$s  instituted  by  two 
persons  Baij  Nath  and  Murli  Dhar  against 
one  Oaneshi  Lai  as  Defendant  No.  1  and 
the  Allahabad  Bank  Ltd.,  as  the  defendant 
No.  2.  The  suit  of  Baij  Nath  and  Murli 
Dhar  was  decreed  for  a  sum  of  about 
Rs.  8,000  against  Ganeshi  Lai  but  it  was 
dismissed  as  against  the  Bank.  The  Bank 
was  awarded  costs  to  the  amount  of 
Rs.  513-12.  The  decree  was  passed  on  the 
27th  of  March  1923.  On  the  12th  of  May 
1924  the  Allahabad  Bank  applied  for  the 
attachment  of  the  decree  obtained  by  Baij 
Nath  and  Murli  Dhar  against  Ganeshi  Lai 
in  order  to  realise  the  money  due  to  the 
Bank,  Previous  to  this  application  for 
attachment,  by  a  sale-deed  dated  the  6th 
of  February  1924  Baij  Nath  and  Murli 
Dhar  had  bold  the  decree  held  by  them 
against  Geneshi  Lai  to  the  appellant,  Pearey 
Lai.  Ganeshi  Lai  was  declared  an  insolv- 
ent. Pearey  Lai  as  a  transferee  of  the 
decree  obtained  by  Baij  Nath  and  Murli 
Dhar  against  Ganeshi  Lai  got  himself 
entered  in  the  schedule  of  creditors.  The 
Allahabad  Bank  had  a  debt  payable  by 
Ganeshi  Lai  which  arose  out  of  a  different 
transaction  and  in  that  capacity  the  Bank 
was  also  entered  in  the  schedule  of  cre- 
ditors of  Ganeshi  Lai. 

The  Allahabad  Bank  in  their  application 
mentioned  the  fact  that  Baij  Nath  and 
Murli  Dhar  had  sold  their  decree  to  Pearey 
Lai  and  that  Pearey  Lai  had  obtained  an 
entry  into  the  schedule  of  creditors  of 
Ganeshi  Lai.  The  Bank  asserted  that  the 
transfer  to  Pearey  Lai  by  Baij  Nath  and 
Murli  Dhar  was  a  fictitious  one  and  prayed 
that  the  decree  might  be  attached  and  the 
Insolvency  Court  might  be  requested  to 
send  the  money  that  may  be  due  on  account 
of  the  decree  of  Baij  Nath  and  Murli  Dhar 
in  Court  for  payment  to  the  Bank. 

Pearey  Lai  raised  two  objections.  First, 
he  said  the  question  of  title  as  between 
the  Bank  and  Pearey  Lai  should  be  settled 
by  the  Insolvency  Court  and  secondly  he 
said  that  lie  was  a  lona  fide  transferee  for 
value  and  the  decree  was  not  attachable  as 
the  property  of  Baij  Nath  and  Murli  Dhar. 
The  Court  below  has  found  both  the 
points  against  Pearey  Lai  and  hence  the 
appeal. 

A  preliminary  objection  has  been  tak^n' 
by  Mr.  Seth  that  the  appeal  is  incompetent 
inasmuch  as  the  objection  of  Pearey  Lai 
was  one  that  fell  within  the  purview  of 
0,  XXI,  r.  58  of  the  C.  P,  C.  and  the  order 


[92 1.  0. 192fi] 


PEAREY  LAL  V.  ALLAIIAfeAD  BANK  LTD. 


15 


of  the  Court  below  was  final  subject  to  the 
result  of  any  suit  that  Pearey  Lai  might 
bring  to  prove  his  title. 

Dr.  Katju  maintained  that  the  appeal  was 
maintainable  under  s.  47  of  the  C.  P.  0. 
and  in  case  the  Court  should  hold  otherwise 
he  requested  that  his  appeal  might  be 
treated  as  a  petition  in  revision. 

On  the  question  as  to  whether  an  appeal 
lies  or  not  I  am  clear  that  no  appeal  lies. 
The  position  is  this.  A  (the  Bank)  has 
obtained  a  decree  against  B.  (Baij  Nath 
and  Murli  Dhar)  for  money.  In  execution 
of  that  decree  A  attaches  a  certain  property 
(in  this  case  a  decree)  belong! n#  to  B. 
Before  the  attachment  C  (.Pearey  Lai)  has 
obtained  a  sale-deed  in  his  favour  in 
respect  of  the  property  attached  The 
question  has  arisen  as  to  whether  C's  title 
is  good  or  whether  the  transfer  in  C's 
favour  is  fictitious.  The  question  has  been 
raised  by  a  person  who  is  not  a  party  to  the 
decree.  The  question  to  be  litigated  is  as 
to  title  to  the  property  sought  to  be  attach- 
ed. In  my  opinion  the  case  comes  clearly 
within  the  purview  of  0.  XXI,  r.  58  of  the 
C.  P.  C.,  and  the  decision  is  final  subject 
to  the  result  of  any  suit  that  may  be 
instituted.  Dr.  Katju's  contention  is  that 
the  property  to  be  attached  being  a  decree 
Pearey  Lai,  the  moment  he  obtained  an 
assignment  of  it,  in  his  favour,  became 
a  legal  representative  of  the  judgment- 
debtor  and  that,  therefore,  the  case  fell 
within  the  purview  of  s.  47  of  the  C.  P.  C. 
He  conceded  that  if  the  property  attached 
had  been  anything  but  a  decree  0.  LVI1I, 
r.  21  would  have  applied.  I  do  not  see  how 
the  case  can  come  within  the  purview  of 
s  47  merely  because  the  property  to  be 
attached  happens  to  be  a  decree.  Further, 
the  question  to  be  decided  is  not  one 
relating  to  the  execution,  discharge  or 
satisfaction  of  the  decree.  It  is  whether 
the  sale-deed  on  foot  of  which  Pearey  Lai 
claims  to  be  a  representative  is  a  fictitious 
one  or  not.  This  question,  has  nothing  to 
do  with  the  execution,  discharge  er  satisfac- 
tion of  the  decree  which  was  passed  in 
favour  of  the  Allahabad  Bank  and  against 
Baij  Nath  and  Murli  Dhar. 

I  hold  that  no  appeal  lies. 

Considering  the  appeal  as  a  petition  in 
revision,  I  have  to  see  whether  the  Court 
below  had  any  jurisdiction  or  not  to  decide 
the  question,  that  is  to  say,  whether  the 
Court  below  or  the  Insolvency  Court  should 
have  decided  the  question  whether  Allaha- 


bad Bank  was  entitled  to  attach  the  decree 
passed  iu  favour  of  Baij  Nath  and  Murli 
Dhar,  in  spite  of  the  supposed  transfer  of 
it  by  the  debtors  in  favour  of  Pearey  Lai. 
Dr.  Katju  has  pointed  out  s.  50  of  the 
Provincial  Insolvency  Act  as  authorising 
the  Insolvency  Court  to  dispose  of  the 
question.  That  section  simply  says  that  in 
certain  cases  at  the  instance  of  a  receiver 
or  a  creditor  the  Insolvency  Court  may 
order  the  expungement  of  an  alleged  credi- 
tor's name  from  the  schedule  of  the  reduc- 
tion of  the  amount  of  the  debt  due  to  him. 
But  there  is  nothing  in  the  section  which 
says  that  any  question  of  title  raised  be- 
tween two  scheduled  creditors  will  be 
decided  by  the  Insolvency  Court.  I  hold 
that  the  Court  below  had  the  jurisdiction. 

Such  being  my  finding  it  is  clear  that  I 
need  not  go  into  the  merits  of  the  appeal. 

I  have  however  heard  Dr.  Katju  on  the 
merits  also  and  find  myself  in  agreement 
with  the  finding  of  the  Court  below. 

The  Bank's  case  as  made  out  in  then- 
petition  of  objection  dated  the  29th  of  June 
1!)25  (page  7  of  the  Paper  Book;  was  to  the 
effect  that  the  Bank's  debtors  had  no  means 
whatsoever,  except  the  decree  against 
Ganeshi  Lai,  by  which  to  pay  the  debt  due 
to  the  Bank,  ride  para  3.  The  witness 
that  was  examined  on  behalf  of  Pearey  Lai 
stated  that  he  had  not  seen  Baij  Nath  at 
Meerut  since  the  sale  deed  was  executed  in 
favour  of  Pearey  Lai  and  he  was  unable  to 
say  whether  Baij  Nath  had  left  Meerut  for 
good  or  not.  Baij  Nath  executed  the  sale- 
deed  for  himself  and  as  an  attorney  for 
Murli  Dhar.  Evidently,  therefore,  Murli 
Dhar  was  not  at  Meerut.  This  circumstance 
must  have  weighed  greatly  with  the 
Court  below  as  it  weighs  with  me.  The 
debtors  of  the  Bank  have  left  the  town 
having  sold  their  valuable  decree  for 
Rs.  8,000  for  the  small  sum  of  Rs.  300.  Dr. 
Katju  told  me  that  the  receiver  had  declar- 
(d  a  dividend  of  only  Rs  400  and  odd  in 
favour  of  Pearey  Lai.  His  argument  is 
that  this  was  the  only  sum  recoverable 
under  the  decree  of  Baij  Nath  and  Muili 
Dhar  from  the  Insolvency  Court.  But  I 
am  not  aware  whether  there  are  or  not 
other  assets  of  Ganeshi  Lai  to  be  realised. 
Some  explanation  ought  to  havq  been 
offered  in  the  Court  below  as  to  why  the 
valuable  decree  for  Rs.  8,000  was  sold  almost 
for  a  song.  I  agree  with  the  Court  below 
that  the  transfer  in  favour  of  Pearey  Lai 
was  a  fictitious  one, 


46 

The  appeal  fails  on  each  and  every  point 
andlit  is  hereby  dismisssd  with  costs  which 
will  include  Counsel's  fees  in  this  Court  on 
the  higher  scale. 

N.  H,  Appeal  dismissed. 


BOMBAY  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  233  OF  1923. 

November  13,  1924. 
Present: — Sir  Norman  Macleod,  KT.,  Chief 

Justice,  and  Mr.  Justice  Crump. 
DUMA  TOMA  RUMAV  AND  OTHERS- 
DEFENDANTS — APPELLANTS 

versus 

NATHU  PARSHA  KUREL  AND  OTHERS— 
PLAINTI  FFS-—  RES  PON  DENTS. 

Specific  performance — Option  to  obtain  property  on 
payment  of  certain  sum  within  period  mentioned, 
nature  of— Consideration,  absence  of — Offer,  whe- 
ther can  be  accepted  after  death  of  party  to  whom  offer 
is  made. 

Defendants'  predecessor  agreed  with  the  plaintiffs' 
predecessors  that  the  latter  could,  within  a  period  of 
ten  years  from  the  date  of  the  agreement,  tender  a 
certain  sum  of  money  and  demand  conveyance  of 
certain  property  from  the  former.  In  a  suit  for 
specific  performance  of  the  agreement  by  the  plaintiffs 
againat  the  defendants  : 

Held,  (1)  that  if  the  agreement  was  to  be  treated  as 
a  contract  it  was  unenforceble  as  being  without  con- 
sideration ; 

(2)  that  if  the  agreement  amounted  to  a  mere  offer, 
not  having  been  accepted  by  the  persons  to  whom  it 
was  made  in  their  lifetime,  it  could  not  be  accepted 
by  their  auccessors-in-interest  after  their  death,  and 
was  not,  therefore,  capable  of  being  sued  upon. 

Second  appeal  from  a  decision  of  the 
Assistant  Judge,  Thana,  in  Appeal  No.  205 
of  1921,  confirming  that  pf  a  decree  of  the 
Subordinate  Judge,  Bassein,  in  Civil  Suit 
No.  143  of  1920. 

Mr,  R.  W.  Desai,  for  the  Appellants. 

Mr.  G.  S.  Kao,  for-  the  Respondents. 
JUDGMENT. 

Macleod,  C.  J.— In  this  suit  the 
plaintiffs  sued  for  specific  performance  of 
the  contract  for  sale  of  the  suit  land  by  the 
1st  defendant's  brother  Juzia  which  the 
plaintiffs  eaid  was  entered  into  on  Decem- 
ber 5,  1910,  by  Juzia  Rumav  on  the  one 
hand  and  on  the  other  by  Farsha  Degu 
Kurel,  father  of  plaintiffs  Nos.  1  and  2,  and 
Simav  Ina,  husband  of  plaintiff  No.  3  and 
brother  of  plaintiff  No.  4,  both  dead  at  the 
time  of  the  suit.  The  terms  of  the  docu- 
ment on  which  the  plaintiffs  relied  are  set 
out  at  page  2  of  the  print.  The'  effect  of 


DUMA  TOMA  KUMAV  V.   NATHU  PAtSfiA  KUfifiL.  [98  I.  0,  1926J 

that  document  was  that  Farsha  and  Simav 
could  within  a. period  of  ten  "years  from  the 
date  of  the  document  tender  Rs.  1,500  and 
demand  a  conveyance  from  Juzia.  There 
are  two  ways  in  which  the  document  can  be 
read  ;  (1)  as  an  offer  by  Juzia  which  was  to 
remain  open  for  ten  years  acceptable  by 
Farsha  and  Simav  at  their  option  ;  or  (2)  as 
an  agreement  by  Juzia  that  he  would  hold 
the  property  for  ten  years  at  the  disposal  of 
Farsha  and  Simav  and  to  sell  to  no  one 
else.  The  latter  would  be  a  contract  and 
the  first  would  be  an  offer.  If  the  docu- 
ment amounts  to  a  contract  then  there 
was  no  consideration  proceeding  from 
Farsha  and  Simav  for  the  agreement 
by  Juzia  to  sell  the  property  to  no 
one  else  during  the  ten  years.  Therefore, 
the  contract  would  be  unenforceable  as 
being  without  consideration.  But  if  the 
document  amounts  to  a  mere  offer  to 
Farsha  and  Simav  that  a  conveyance  would 
be  given  on  their  tendering  Rs.  1,500 
within  ten  years,  it  would  remain  an  offer 
and  would  not  become  a  contract  until  the 
offer  was  accepted.  Then  the  question 
would  arise  whether  the  offer  made  to 
Farsha  and  Simav  could  be  accepted  by 
their  legal  representatives.  No  authority 
has  been  shown  to  us  for  such  a  proposition, 
and  it  seems  to  me  uncontestable  that  if 
A  makes  an  offer  to  B  and  nothing  further 
is  done  before  B  dies,  B's  representatives 
could  not  claim  to  have  a  right  to  accept 
the  offer  made  by  A  to  B.  On  this  ground 
it  seems  to  me  that  the  representatives  of 
Farsha  and  Simav,  who  are  the  present 
plaintiffs,  are  either  suing  on  a  contract 
without  consideration  or  are  claiming  a 
right  to  sue  for  a  declaration  that  they  are 
entitled  to  accept  an  offer  made  to  their 
ancestors,  which  is  not  a  right  recognised 
in  law.  It  seems  to  me,  therefore,  that  the 
suit  should  have  been  dismissed  and  accord- 
ingly we  make  that  order^  with  costs 
throughout. 

Crump,  J.  —I  concur. 

z,  K.  Suit  dismissed. 


1. 0.1926] 


SHAtf  fcAR  t7.  BHAIRON 


1? 


OUDH  CHIEF  COURT, 

SECOND  CIVIL  APPEAL  No.  305  OF  1924. 

November  5,  1925. 
Present:— Mr.  Justice  Ash  worth  and 

Mr.  Justice  Raza. 

GAURI  SHANK  A  R— PLAINTIFF 

— APPELLANT 

zersus 

BHAIRON  PERSHAD— DEFENDANT- 
RESPONDENT. 

Transfer  of  Property  Act  (IV  of  1883),  s  05  (e)— 
Mortgage — Mortgagee  empowered  to  obtain  possession  of 
portion  of  mortgaged  property  on  payment  of  certain 
amount  to  third  person— Possession  obtained  on  pay- 
ment of  larger  amount  -  -Mortgagor,  whether  liable  for 
excess  amount  paid— Interest,  covenant  providing  for 
payment  of,  up  to  certain  date — Mortgagee,  whether 
entitled  to  interest  after  date  fixed. 

Where  a  mortgage-deed  empowers  the  mortgagee 
to  obtain  possession  of  a  portion  of  the  mortgaged 
property  from  a  third  person  on  payment  of  a  certain 
sum  of  money,  and  the  mortgagee,  m  order  to  obtain 
possession  of  the  property,  is  compelled  to  pay  a 
larger  amount  of  money  than  is  mentioned  in  the 
mortgage-deed,  the  mortgagor  is  bound  to  bear  the 
whole  of  the  expenses  incurred  by  the  mortgagee  in 
obtaining  possession  of  such  property  [p  18,  col  1  1 

Where  a  mortgage-deed  expressly  provides  that 
interest  shall  not  be  payable  to  the  mortgagee  after  a 
certain,  date,  the  mortgagee  is  not  entitled  to  interest 
after  such  date,  [p  18,  cols  1  &  2  ] 

Second  appeal  against  the  judgment 
and  decree  of  the  Sub-Judge,  Unao,  dated 
the  12th  April  192  h  modifying  that  of 
the  Munsif,  North  Unao,  dated  the  29th 
March  1923. 

Mr.  Bishambhar  Nath  Srivastava,  for  the 
Appellant. 

Mr.  H.  N.  Misra  for  Dr.  J.  N.  Misra,  and 
Mr.  Surrendra  Nath  Srivastava,  for  the  Re- 
spondents. 

JUDGMENT.— This  is  the  plaintiff's 
appeal.  The  plaintiff  sued  for  redemption 
of  a  2-annas  share  in  the  village  of  Jindas- 
pur  on  payment  of  the  sum  of  Rs.  500 
principal  money  secured  by  a  irn/rlgii^c- 
deed  dated  the  26th  of  August  1862.  "  The 
Court  of  first  instance  gave  the  plaintiff 
a  decree  for  redemption  but  required  him 
to  pay  in  addition  to  the  Rs.  500,  principal 
sum,  the  sum  of  Rs.  419-9-0  which  had 
been  expended  by  the  mortgagee  in  get- 
ting poroession  from  a  prior  mortgagee. 
It  refused  to  credit  the  mortgagee  with 
interest  after  the  date  mentioned  in  the 
mortgage-deed  as  that  up  to  which  interest 
would  be  payable  by  the  mortgagor.  On 
appeal  the  Subordinate  Judge  upheld  the 
first  finding  of  the  original  Court  but 
allowed  interest  for  a  period  subsequent  to 
tbat  just  mentioned.  The  plaintiff  appeals 
2 


against  the  decision  of  the  lower  Appellate 
Court  on  both  grounds. 

Four  persons  originally  held   16-annas  in 
village  Jindaspur.     On  the   25th  of  June 
1859,  two  of  them  Mohan    Lai  and    Beni 
Prasad  lYi-.r-turnsriMl  the  whole   16  annas    to 
Raja    Tej    Kishen  for    Rs.  450.    It    is  not 
disputed   that   they  were  in   a   position  to 
mortgage  the  whole    16    annas.    Now  one 
of  the  four   persons     Mohan    Lai  was  re- 
corded as  owner  of    10-annas  share  out  of 
the   16-annas  share  from  before   this  mort- 
gage.   His  10  annas  share  was   confiscated 
in   1860  by  Government  for  rebellion  and 
granted  to   Ram    Ghulam.     There    is  evi- 
dence on  this  record,  namely  Ex.  V  to  show 
that   the  confiscation  had  the   effect  of  Gov- 
ernment acquiring  not  only  the   equity  of 
redemption  but  absolute  rights  in  the  10- 
annas   share.       It    is     a  qanunyo's    report. 
Accordingly   Ram  Ghulam  acquired  an  un- 
incwnhered  share  in  10  annas  share.     On 
the   26th   of   August   1862   another    of  the 
four  persons  Beni    \\lio    was    recorded   as 
owner  of  a  ;2  annas  share   •       '..  ...    :   his 
2  annas  share  to  Ram  Ghulam  for  Us,  500. 
It  is  this  mortgage  of    which  redemption 
is  being  asked   in  the    present    case.    The 
mortgage-deed  records  that  the  mortgagor 
was  leaving  Rs.  56-4  with    the    mortgagee 
for  redemption   of  the    2-annas  share  from 
Raja  Tej     Kishan.      In  pursuance  of  this 
deed   Ram   Ghulam  attempted    to  redeem 
the  property  from  Raja  Tej  Kishan 's  trans- 
feree by  offering  the  Rs.   56-4  and  brought 
a  redemption  suit  to    that    effect.    It  was 
held  by  the  Assistant     Collector  of   Unao 
under  a  judgment  dated  the   16th  of  May 
1878  that  he  could    only    redeem  2  annas 
share  by     paying    up    the     total  sum  for 
which   the  whole  l(i-annas  share  had  been 
mortgaged    to  Raja   Tej   Kishen.    In  that 
suit  he   had     made     one    of     the    present 
plaintiffs,  namely,  Gauri  Shankar,  who  is 
the  son  of  Beni,  the  mortgagor,  a  co-plaint- 
iff.   The  lower  Courts  held  that  under  the 
mortgage- deed    in  suit    the  mortgagor  in 
effect  gave  a    warranty   to  the  mortgagee 
that    he    would    get     possession    of      the 
2-annas  payment  of  Rs.  &6-4  and  that  as  the 
mortgagee  had  to  pay  Rs.  450  the  mort- 
gagee is  entitled  to  get  the  difference  bet- 
ween the  two  sums  in  addition  to  the  mort- 
gage-money.   The  first  question  that  arises 
in  this  appeal  is  whether  they  were  correct 
in  so  holding. 

Whatever  was  the  contention  for  the  ap- 
pellant-mortgagor in  the  lower  Court,  w^ 


MUNICIPAL  COUNCIL,  COCHIN  I?.  PfcATATH  BAVA  fcEVUSSI. 


[C£  L 


find  that  in  the  Court  of  first  appeal  his 
contention  was  that  Ram  Ghulam  having 
obtained  from  Government  10  annas  out  of 
the  16-annas  originally  moitgaged  was 
bound  t,o  contrfbute  to  that  extent  himself 
in  redemption  of  a  prior  mortgage  for 
Rs,  450.  k  We  are,  however,  satisfied  that 
this  objection  fails  for  the  following  reason: 
Bam  yfnulam  obtained  the  property  from 
Government  free  of  incumbrance.  The 
buiden,  therefore,  of  the  whole  of  the  mort- 
gifge  was  thrown  on  the  (5-annas  of  which 
the  equity  of  redemption  remained  with 
the  mortgagors.  Accordingly  the  conten- 
tion in  the  lower  Appellate  Court  failed. 
In  this  Court  it  has  been  urged  that  both 
Beni  and  Ram  Ghulam  well  understood  the 
facts  of  the  case  and  that  Rs.  56  4  would 
not  suffice  to  redeem  the  original  mort- 
gage. It  is  said  that  the  agreement  was 
that  Ram  Ghulam  should  redeem  the  whole 
mortgage  but  only  held  Beni  liable  for  twc- 
sixteenth  of  it.  With  this  argument  we  <3o 
not  agree  We  construe  the  mortgage-deed 
to  mean,  as  urged  by  the  defendants,  that 
the  mortgagor  covenanted  that  the  mort- 
gagee should  get  possession  of  the  2- annas 
on  payment  of  Rs.  56-4.  The  mortgagee  has 
failed  to  get  possession  of  that  owing  to  a 
decision  of  a  Court  with  the  correctness  of 
which  we  are  not  concerned.  The  curious 
thing  about  this  decision  of  IGtfy  May  1878 
ie  that  the  Court  only  decreed  possession 
of  2  annas  on  payment  of  Rs.  450  and  not 
possession  of  the  6- annas  share  remaining 
to  the  mortgage.  This  decision  appears 
to  us  to  be  an  accident  which  could  not  be 
foreseen  by  the  parties  to  the  mortgage  and 
both  on  the  interpretation  which  would  give 
to  the  mortgagee  and  on  the  principle  under- 
lying s.  65  (e)  of  the  Transfer  of  Property 
Act,  we  consider  that  the  mortgagor  is 
bound  to  bear  the  whole  expenses  incurred 
in  obtaining  the  promised  possession  of 
the  property. 

The  appellant  also  appeals  against  the 
lower  Court's  decision  that  he  must  pay 
interest  after  the  date  up  to  which  the 
deed  recites  that  interest  shall  be  paid  and 
urged  that  the  decree  of  the  Court  of  first 
instance  on  this  point  should  be  restored. 
The  lower  Court  has  cited  certain  rulings 
which  have  again  been  relied  on  by  the 
respondents'  learned  Counsel  in  this  case. 
The  language  of  the  mortgage  deed  is  quite 
clear,  namely,  that  interest  shall  be  payable 
at  a  certain  rate  so  long  as  possession  is  not 
obtained  by  the  ir  ortgagee  up  to  8  years 


and  that  after  8  years  the  only  remedy  of 
the  mortgagee  was  to  sue  for  foreclosure. 
The  rulings  quoted  to  us  are  all  to  be 
distinguished  Irom  the  present  case.  They- 
were  based  on  deeds  which  had  no  express 
provision  that  interest  should  cease  at  a 
certain  date  but  only  provided  that  interest 
was  payable  until  the  date  on  which  sale 
or  foreclosure  could  be  claimed.  In  the 
face  of  the  clear  language  of  the  deed  we 
agree  with  the  Court  of  first  intstance  that 
no  interest  could  be  decreed  after  the  8 
years. 

Accordingly  we  allow  this  appeal  in  part 
and  dismiss  it  in  part  and  restore  the  decree 
of  the  Court  of  first  instance.  The  parties 
will  get  their  costs  in  this  Court  according 
to  their  success  and  failure  and  the  defen- 
dant will  get  whole  costs  in  the  lower 
Appellate  Court. 

z,  K.  Appeal  partly  allotted. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL   APPEAL  No.  fc49  OF  1922. 

March  26,  1925. 

Present:— Mr.  Justice  Phillips. 
MUNICIPAL  COUNCIL,  COCHIN 

REPRESENTED  BY  THE  CHAIKMAN — DEFENDANT 

No.  1 — APPELLANT 

versus 

PRATATH  BAVU  DEVUS8I  AND  ANOTHER 

— PLAINTIFF  AND  DEFENDANT  No.  2 — 

RESPONDENTS. 

Madras  District  Municipalities  Act  (V  of  188^),  8. 
201 — Suit  against  Municipal  Council  for  declaration 
of  title  to  land -Notice,  whether  necessary— Madras. 
Survey  and  Boundaries  Act  (IV  of  181)7),  s  13,  appli- 
cability of — Dispute  (is  to  boundaries,  absence  of — •' 
Adverse  possession— Sweeping  land,  effect  of. 

Defendant  Municipality  sent  a  notice  to  the  plaintiff 
informing  him  that  he  had  no  right  to  a  certain  piece 
of  land  and  that  he  should  establish  his  right  by  suit. 
The  plaintiff  thereupon  instituted  a  suit  against  the 
Municipality  for  a  declaration  of  his  title  to  the 
land: 

Held,  that  the  suit  "vras  not  one  on  account  of  any 
act  done  by  the  Municipality  within  the  meaning  of 
s.  261  of  the  Madras  District  Municipalities  Act-  and 
that  no  notice  was,  therefore,  necessary  to  be  'served 
on  the  defendant  under  that  section  [p,  19,  col  l.J 

In  order  to  apply  the  ..provisions  of  s.  13  of  the 
Madras  Survey  and  Boundaries  Act,  it  is  necessary  to 
show  that  there  was  a  dispute  before  the  boundary 
was  settled,  or  an  appeal  was  preferred  from  the 
settlement  of  the  boundary.  The  meaning  of  the 
section  is  that  when  there  has  been  a  dispute  between 
parties  as  to  a  certain  boundary  line  and  that  dispute 
has  been  settled  by  a  competent  officer,  that  decision 
ie  binding  and  can  cnjy  be  .-  ect  aside  by  taking 


[92  I.  0. 1928] 


DEO  KALI  V.  RANCHOOR   BCX. 


19 


it.:  r^:-i'!  steps  for  that  purpose  within  a  certain 
1  !:*••>  .;,  I  '  cola.  1&2] 

The* act  of  sweeping  a  piece  of  land  occasionally 
does  not  amount  to  adverse  possession  against  the 
true  owner,  [p.  19,  col  2.] 

Second  appeal  against  a  decree  of  the 
Court  of  the  District  Judge,  South  Malabar, 
in  A.  8.  No.  129  of  1921,  preferred  against 
that  of  the  Court  of  the  Subordinate  Judge, 
Cochin,  in  0. 8.  No.  11  of  1918. 

Mr.  A.  V.  K.  Krishna  Menon,  for  the 
Appellant, 

Mr.  T.  A.  Ananta  Iyer,  for  the  Respond- 
ent. 

JUDGMENT.—  This  is  an  appeal 
against  a  decree  declaring  plaintiffs  right 
to  certain  land  in  Cochin  Municipality.  The 
District  Judge  has  found  that  the  land  is 
used  as  a  right  of  way,  that  it  belongs  to 
the  plaintiff  and  that  recently  the  Muni- 
cipality interfered  with  his  possession  and 
that  consequently  he  is  entitled  to  the 
declaration  sued  for. 

The  main  objection  taken  is  that  no  notice 
of  this  suit  was  given  to  the  Municipality 
under  s.  261  of  the  District  Municipalities 
Act  of  1884  but  inasmuch  as  this  is  a 
suit  for  declaration  of  title  to  immoveable 
property,  it  is  difficult  to  see  how  it  can  be 
treated  as  a  suit  "on  account  of  any  act 
done  by  the  Municipal  Council."  No  doubt 
in  the  plaint,  the  cause  of  action  is  stated 
to  be  the  putting  and  beating  of  gravel  on 
the  plaint  site  but  if  one  looks  into  the 
facts  it  appears  that  the  plaint  has  not  been 
accurately  drafted  and  the  real  cause  of 
action  is  the  notice  sent  by  the  defendant 
informing  the  plaintiff  that  he  had  no  right 
to  the  property  and  that  he  should  estab- 
lish his  right  by  a  suit.  In  that  view  I 
do  not  think  this  is  a  case  which  can  come 
under  8.261  of  the  District  Municipalities 
Act.  In  this  connection  I  may  refer  to 
President  of  the  Taluk  Board,  Sivaganga  v. 
Narayanan  (1)  and  also  Syeed  Ameer  Sahib 
v.  Venkatarama  (2)  arid  Govinda  Pillai  v. 
Taluk  Board,  Kombakonam  (3). 

The  next  objection  is  that  the  suit  is 
barred  by  limitation  by  reason  of  the  pro- 
visions of  s,  13  of  the  Survey  and  Bounda- 
ries Act,  In  order  to  apply  the  provisions 
of  this  section,  it  is  necessary  to  show  that 
there  was  a  dispute  before  the  boundary 
was  settled  or  an  appeal  preferred  from  the 
settlement  of  the  boundary.  In  fact  it  means 

(1)  1C  M.  317;  3  M  L  J.  12;  5  Tnd   Dec.  (N\  s)   928. 

(2)  1G  M    293,  5  Ind,  Dr*,  (\*.  a  )  913 

(3-  4  Ini,  Cas.  32;  32  M,  37 J;  10  M.  L.  J,  333;  4  M. 
U  T,  209,  « 


that  when  there  has  been  a  dispute  between 
the  parties  as  to  a  certain  boundary  line  and 
that  dispute  has  been  settled  by  a  competent 
officer,  that  decision  is  binding  and  can 
only  be  set  aside,  by  taking  appropriate 
steps  within  a  certain  time.  In  the  present 
case  there  does  not  appear  to  have  been 
any  dispute  at  all.  In  fact  the  District 
Judge  linds  that  notice  of  the  settlement 
of  the  boundary  is  not  proved  to  have  been 
served  upon  the  plaintiff.  This  objection 
must  also  fail. 

The  District  Judge  has  found  that  the  pro- 
perty belongs  to  the  plaintiff  and  that  the  only 
act  of  adverse  possession  by  the  Munici- 
pal Council  has  been  the  act  of  sweeping 
the  land  occasionally  and  that  cannot  be 
said  to  be  adverse  possession  as  against 
the  real  owner.  There  is  no  other  reason 
for  not  accepting  his  finding  in  accordance 
with  which  his  decree  is  right. 

The  appeal  is,  therefore,  dismissed  with 
costs. 


v.  N. 
z.  K. 


Appeal  dismissed* 


OUDH  CHIEF  COURT. 

SECOND  CIVIL,  APPEAL  No.  310  OF  1924. 

November  C,  1925. 

Present  : — Mr.  Justice  Raza. 

DEO  KALI  AND  ANOTHER — DEFENDANTS  — 

APPELLANTS 

versus 
RANCHOOR  BUX  AND  ANOTHER  - 

PLAINTIFFS— RESPONDENTS. 
Hindu  Law —Reversions  r,  transfer  by,  during  life* 
time  of    Widow,    validity     of~~Reverbwtu.r    accepting 
transfer  from  other   i^eterswner — Estoppel— Evidence 
Act  (I  of  1872],  s.  115. 

A  tiansfer  made  by  a  next  reversioner  during  tlra 
lifetime  Qf  a  Hindu  widow  who  is  in  possession  of 
her  deceased  husband's  estate  is  inoperative  under 
the  Hindu  Law,  as  during  the  widow's  lifetime  a 
revcrsioncr  has  no  interest  in  the  estate  capable  of 
transfer  but  merely  an  expectancy,  [p.  20,  col  2  ] 

Where,  therefore,  a  reversiuiier  of  a  deceased  Hindu 
accepts  a  mortgage  of  certain  property  forming  pait 
of  the  estate  of  the  deceased  from  some  other  rever- 
sioners,  he  is  net  estopped  fiom  subsequently  con- 
tending that  he  has  a  share  in  the  property  which 
was  mortgaged  to  him,  inasmuch  as  the  mortgage  is  a 
void  transaction  and  no  estoppel  can  arise  out  of 
such  a  transaction,  [ibid  J 

Appeal  against  a  decree  of  the  Second 
Additional  Subordinate  Judge,  Qonda,  dated 
the  15th  April  1924,  upholding  thaUofth* 


MtJbALl  V. 

Munsif,  Gonda,  dated  the  19th  April  1923. 

Mr.  S.  M.  Ahmad,  for  the  Appellants. 

Mr.  Makund  Behari  Lai,  for  the  Respond- 
ent. 

JUDGMENT. -This  is  a  defendants1 
appeal  arising  out  of  a  suit  for  possession 
of  a  certain  property  specified  in  the  plaint. 
The  parties  are  the  descendants  of  one 
Kashi  Ram.  Kashi  Ram  had  four  sons, 
namely,  Ratan  Din  Manodut,  Siridat  and 
Acharji.  Ranchur  Bakhsh  plaintiff  is  one 
of  the  two  sons  of  Sri  Dat  Deokali  defend- 
ant No.  1  is  the  son  of  Mandat  and  Suraj 
Bakhsh  defendant  No.  2  the  son  of  Acharji. 
Chhatarpal  defendant  No.  3  is  the  brother 
of  the  plaintiff.  The  plaintiffs'  case  was 
that  Ratan  Din  was  owner  of  the  plots  in 
suit,  that  he  died  childless  about  30  years 
ago  and  was  succeeded  by  his  widow 
Musammat  Biranji,  that  she  also  died  in 
1912  leaving  the  parties  as  her  nearest  re- 
version ers  and  that  the  plaintiff  was  entitl- 
ed to  a  one-fourth  share,  but  was  in  pos- 
session of  a  one- sixth  share  only.  He,  there- 
fore, claimed  a  one-twelfth  share  over  and 
above  the  share  already  possessed  by  him. 
The  suit  was  contested  by  the  defendant,0) 
Nos.  1  and  2  on  various  grounds.  The  claim 
was  decreed  by  the  first  Court  and  the 
defendants1  appeal  was  dismissed  by  the 
Court  of  first  appeal.  It  was  held  that 
Ratan  Din  was  the  owner  of  the  plots  in 
suit  but  after  his  death  Musammat  Biranji 
had  been  in  possession  of  the  land  in  suit 
till  1912.  It  was  pleaded  by  the  contesting 
defendants  in  respect  of  two  plots  Nos.  22 
and  622  that  the  plaintiff  had  taken  a  mort- 
gage of  the  plots  from  them  and  was,  there- 
fore, estopped  from  denying  their  title  so  far 
as  these  plots  were  concerned.  The  lower 
Courts  rejected  the  defence  holding  that 
there  was  no  estoppel  in  the  circumstances 
of  the  case.  The  contesting  defendants  have 
now  appealed  to  this  Court.  Their  learned 
Counsel  Jias  confined  his  arguments  to  the 
question  of  estoppel  only.  He  contends  that 
the  plaintiff  cannot  question  the  right  of 
the  appellants  in  respect  of  plots  Nor>.  22 
and  622  as  he  had  taken  a  mortgage  of 
those  plots  from  the  appellants.  I  am  not 
prepared  to  accept  the  contention.  It  was 
a  simple  mortgage  and  was  executed  by 
Deokali  appellant  No.  1  on  30th  May  1904. 
Musammat  Biranji  died  in  April  1912,  It 
is  clear  that  the  mortgage  was  void  as 
Deokali  as  the  reversioner  of  Musammat 
Biranji  had  no  rights  to  mortgage  the  plots 
jn  dispute  in  her  lifetime. 


rob  T    p 

l_yz  i.  u. 

As  pointed  out  by  their  Lordships  of  the 
Privy  Council  in  the  case  of  Harnath  %uar  v. 
Indar  Bahadur  Singh  (1)  "a  transfer  made 
by  a  next  reversioner  during  the  lifetime  of 
the  widow  is  inoperative  under  the  Hindu 
Law,  as  at  its  date  he  has  no  interest  capable 
of  transfer  but  merely  an  expectancy.'1 

It  is  true  that  as  between  a  mortgagor 
and  his  mortgagee  neither  can  deny  the 
title  of  the  other  for  the  purposes  of  the 
mortgage  but  the  present  suit  is  not  a  suit 
based  on  or  connected  with  the  mortgage. 
In  my  opinion  the  plaintiff  is  not  estopped 
from  questioning  the  validity  of  the  mort- 
gage in  the  present  suit.  No  other  point  was 
argued  in  this  appeal. 

The  appeal  fails  and  must  be  dismissed* 
I  dismiss  this  appeal  and  order  the  con- 
testing appellants  to  pay  the  costs  of  the 
contesting  respondents. 

The  decree  of  the  lower  Court  is  confirmed 
in  all  respects. 

z.  K.  Appeal  dismissed. 

(1)  71  Ind.  Gas.  620;  9  0  L.  J.  652,  (19*22;  A  I,  R. 
(P.  0.;  403;  9  O  &  A.  L.  R.  270;  44  M.  L.  J.  489;  37 
C  L.  J.  346,  45  A  179;  27  C.  W.  N.  949,  50  I.  A  69; 
18  L  W.  383,  26  0,  C  2?3;  33  M.  L.  T.  216;  5  P.  L. 
T  281,  2  Pat.  L,  R.  237  (P.O.). 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  923  OF  19?3, 

August  18,  1925. 
Present: — Mr.  Justice  Jackson. 
VEERA8WAMI  MUDALI— PLAINTIFF- 
PETITIONER 

versus 
P,  R.  VENKATACHALA  MUDALI 

AND  OTtfEKS — DEFENDANTS   NOS.    1  TO  5  — 

RESPONDENTS. 

Specific  Relief  Act  (I  of  1877),  s.  9— Tenant,  dis-> 
possession  of — Summary  suit  by  landlord  against  tres- 
passer-,  maintainability  of —Revision — Interference  by 
High  Court— Civil  Procedure  Code  (Act  V  of  1908), 
s.  115. 

A  plaintiff  who  seeks  possession  summarily  under 
s.  9  of  the  Specific  Kelief  Act  must  show  that  at  the 
date  of  the  suit  he  ia  entitled  to  such  relief.  A 
landlord,  therefore,  cannot  bring  a  suit  in  ejectment 
under  this  section  where  his  tenant  has  been  dis- 
possessed by  a  third  jmrty.  [p.  21,  col  2.] 

Ramanadan  Chetti  v,  Pulikuti  Servai,  21  M.  288;  8 
M.  L.  J  121;  7  Ind.  Dec.  (N.  s.)  559,  SitaRamv.Ram 
Lai,  18  A.  440;  A.  W,  N.  (1896)  162;  8  Ind.  Dec.  (N.  s.) 
999  and  Davood  Mohideen  Rowttier  v.  Jayarama  Iyert 
62  Ind.  Cas.  284;  44  M.  937;  40  M.  L.  J  38;  13  L.  W. 
281;  (1921)  M.  W.  N.  43;  29  M.  L.  T.  78,  followed, 

The  High  Court  will  not  ordinarily  interfere  by  way 
of  revision  with  a  decree  under  B.  9  of  the  Specific* 
Belief  Act.  Wbere4  however,  the  remedy  under  th^ 


[92  L  o.  mej 


YEEftASWAUI  MUDALI  V.  VBNKATaCHALA  MUDiLt 


21 


Section  te    clear,  the  parties  will  not   necessarily  bo 
driven  to  another  suit,    [p.  21,  col  1.] 

Devata  Sri  Ramamurthi  v.  Venkata  Sitarama- 
Chandra  Row,  22  Ind.  Oas.  279;  (1914)  M.  W  N  05, 
Sri  Krishna  Doss  v.  Chandook  Ckand,  4  Ind  Gas. 
509;  32  M.  334;  5  M.  L.  T.  125;  19  H.  L  J.  307,  relied 
on. 

Petition,  under  a.  112  of  Act  V  of  1908  and 
s.  107  of  the  Government  of  India  Act,  pray- 
ing the  High  Court  to  revise  a  decree  of 
the  Court  of  the  District  Munsif ,  Poonamalle, 
in  O.  8.  No.  475  of  1922. 

Mr.  K.  Rajah  Iyer,  for  the  Appellant. 

Mr.  B.  Somayya,  for  the  Respondents, 

JUDGMENT,— Plaintiffs  in  two  con- 
nected suits  Nos.  475  and  476  of  1922  on 
the  file  of  the  Court  of  the  District  Mnnsif 
of  Poonamalle  brought  under  s.  9  of  the 
Specific  Relief  Act  were  unsuited  on  the 
ground  that  on  the  date  of  the  suits,  the 
plaint  lands  although  trespassed  upon  by 
defendants  were  leased  to  others  and,  there- 
fore, only  their  lessees  and  not  plaintiffs 
themselves  were  entitled  to  sue.  This 
petition  is  brought  in  order  to  revise  that 
decision. 

Plaintiffs  have  their  remedy  by  way  of 
suit  and  in  such  circumstances  this  Court 
will  not  ordinarily  interfere  by  way  of  revi- 
sion, Devata  Sri  Ramamurthi  v.  Venkata 
Sitaramachandra  (1).  But  if  the  remedy  is 
clear,  the  parties  will  not  necessarily  be 
driven  to  another  suit,  [Sri  Krishna  Doss  v. 
Chandook  Chand  (21]  Therefore,  the  ques- 
tion for  determination  in  this  case  resolves 
itself  into  whether  there  is  clear  authority 
supporting  or  contravening  the  decision  of 
the  District  Munsif. 

There  has  been  sharp  divergence  of 
judicial  opinion  upon  the  point  as  was 
clearly  revealed  when  it  came  before  a  Pull 
Bench  of  the  Allahabad  High  Court. 
Blennerhassett,  J.,  could  see  no  reason  why 
a  landlord  who  has  put  a  tenant  in  posses- 
sion should  not  himself  sue  to  eject  a 
trespasser.  Edge,  C.  J.,  affirmed  as  prevail- 
ing all  the  world  over  that  when  a  man 
creates  a  tenancy  under  him  which  entitles 
the  tenant  to  the  exclusive  use  of  the 
property  the  man  creating  the  tenancy  can- 
not have  any  right  to  actual  possession  so 
long  as  the  tenant  is  entitled  to  possession. 
It  was  accordingly  held  with  the  concurrence 
of  four  other  Judges  that  in  these  circum- 
stances plaint' ffs  might  be  entitled  to  a 

(1)  22  Ind.  Cas.  279;  (1914)  M,  W.  N.  95. 

(2)  4  Ind.  Oas,  509:  32  M.  334,  5  Mf  L,  T,  J25;  19  M- 
t.  J.  307f 


declaratory  decree  that  the  trespasser  could 
not  interfere  with  his  right  to  receive  rent; 
and  a  decree  to  be  put  into  possession  of 
the  rents;  but  so  long  as  he  did  noL,  him- 
self possess  the  right  to  enjoy  physical 
possession,  he  could  not  eject  the  trespasser 
[Sita  Ram  v.  Ram  Lai  (3).] 

Two  years  later  the  question  came  before 
a  Bench  of  this  Court,  which  assumed  it  to 
be  an  elementary  rule  that  a  plaintiff  who 
seeks  possession  must  show  that  at  the  date 
of  the  suit  he  was  entitled  to  such  relief 
[Ramanadan  Chettiv.  Pulikutti  Servai  (4),] 

So  far  the  law  on  the  matter  was  clear 
and  the  next  Madras  ruling  [Jagannatha 
Gharry  v.  Rama  Rayer  (5)]  hardly  affected 
the  previous  decisions,  for  it  was  held  that 
the  landlord  must  be  entitled  to  possession 
at  the  time  of  suit,  and  he  was  so  entitled 
in  that  case  because  jthe  lease  had  termi- 
nated immediately  after  the  dispossession  of 
the  tenant  by  a  third  person  and  the  tenant 
was  no  longer  interested  in  the  matter. 
But  unfortunately  'the  head-note  to  this 
ruling  is  drafted  as  if  affirming  that  a 
landlord  can  always  bring  a  suit  for  pos- 
session when  his  tenant  has  been  dispos- 
sessed by  a  third  party.  For  this  unquali- 
fied statement  there  might  seem  at  first  to 
be  better  authority  in  Rangaswamy  lyengar 
v  Krishna  Govindan  (t>)  when  Sankaran 
Nair,  J.,  sitting  alone  does  appear  to  allow 
a  landlord  to  sue  for  physical  possession  of 
property  of  which  his  tenant  had  been  dis- 
possessed. But  though  that  is  the  effect  of 
the  judgment,  the 'reasoning  proceeds  on 
the  assumption  that  it  is  only  a  question 
of  receiving  rent,  a  matter  about  which 
as  Sir  John  Edge  showed  in  Sita  Ram  v. 
Ram  Lai  (3)  there  is  no  difficulty.  An  earlier 
Madras  case  is  cited  [Innasi  Pitlai  v. 
Sivagnana  Desikar(7)]  which  also  is  entirely 
confined  to  the  question  of  rent;  and  before 
concluding  Sankaran  Nair,  J.,  makes  it  clear 
that  he  is  not  differing  from  Ramanadhan 
Chetty  v.  Pulikutti  Servai  (4).  It  is  not  an 
easy  judgment  to  understand,  but  it  is  no 
authority  for  holding  that  the  landlord  can 
sue  in  these  cases. 

In    Krishna  Namhudri  v.    Secretary    of 

(3)  18  A,  440,  A.  W.  N.  (1896)  162,  8  Tnd  Dec.  (N.  s) 
999. 

(4)  21  M.  288;    8  M.   L.  J.   121,  7  Ind.  Dec.  (N.  s) 
559. 

•    (5)  28  M.  238. 
(6)  8  Ind,  Cas,  844;  (1910)  M.  W.  N.  838;  9  M,  U  T, 

21(7)  5  M,  fc.  J.  95- 


22  mSASWAMI  MBDALI  t>.  VRNKATAOHALA  MUD  ALL 

State  (8),  Wallis,  J.,  and  Abdul  Rahim,  J., 
re-affirmed  [Ramanathan  Chetty  v.  Pulikutti 
Servai(4)]andits  statement  of  the  elementary 
rule. 

Thus  it  may  he  said  that  at  this  date 
there  was  no  real  difference  of  opinion  and 
the  ruling  of  the  Allahabad  High  Court 
Full  Bench  prevailed. 

In  Ambalavana  Chetty  v.  Singaravelu 
Odayar  (9)  a  plaintiff  who  had  long  been 
out  of  possession  seems  to  have  suggested 
that  if  his  tenant  had  been  in  possession 
(which  was  not  the  fact)  there  would  be  no  bar 
of  limitation.  His  plea  was  rejected  on  the 
facts  but  his  hypothesis  was  fully  discussed 
by  8undara  Iyer,  J.,  who  has  assembled  the 
various  rulings  on  the  point. 

His  Lordship  says  that  it  is  held  that  the 
landlord  where  his  tenant  is  ousted  by  a 
trespasser  may  sue  under  s.  9  of  the 
Specific  Relief  Act  in  Rangaswami  lyengar 
v.  Rama  Raycr  (6)  and  Innasi  Pillai  v. 
Sivagnana  Desikar(7).  But  as  shown  above 
none  of  these  cases  is  real  authority  for 
that  broad  proposition.  HI  '  •*  •  ^,  - 
that  Hamanathan  Chetty  v.  . 
(4)  and  Krishnan  Nambudri  v.  Secretary  of 
State  (8)  are  against  him,  but  on  the  whole 
is  inclined  to  hold  that  the  landlord  has  a 
cause  of  action  (page  155*).  This  opinion  it 
may  be  noted  is  obiter  and  is  not  very 
strongly  expressed.  • 

In  1914  it  was  held  in  Somai  Ammal  v. 
Vellayya  Sethurangam  (10)  that  if  a  land- 
lord had  given  a  lease  to  a  tenant  the 
landlord  might  eject  a  trespasser  in  order 
to  put  his  tenant  into  possession.  The 
tenant  in  that  case  "had  not  been  put  in 
possession  at  all,  but  was  anxious  to  obtain 
possession."  Such  a  case  seems  to  proceed 
on  the  assumption  that  the  landlord  has 
a  right  to  immediate  possession  in  order  to 
fulfill  his  contract  and  the  elementary  rule 
in  Ramanathan  Chetti  v.  Pulikutti  Servai  (4) 
would  not  then  be  infringed.  It  is  not  as 
though  only  the  tenant  had  the  right  of 
immediate  possession. 

In  Tiruvengada  Konan  v.  Venkatachala 
Konan  (11)  it  was  ruled  that  though  a  land- 
lord is  not  entitled  to  immediate  or  khas 
possession,  he  may  obtnin  a  decree  for  the 
possesion  of  the  reversion  and  for  formal 

(8)  4  Ind  Cas.  30,  19  M  L  J  317;  5  M  L.  T.  213. 

(9)  15  Ind  Cas  146,  (1912)  M  W  N  669 

(10)  26  Ind.  Cas.  317,  29  M  L  J  233,  (1915)  M.  W. 
N.  12,  16  M.  L.  T.  532;  1  L  W  1047 

(11)  32  Ind.  Cas.  198;  39  M.  1042;  30  M.  L.  J 

"  *?age  of  15  Ind.  Cas.— (JBd.\       ' ~~" 


[92  I  0. 1826] 

possession.  This  ruling  practically  follow^ 
Sita  Ram  v.'  Ram  Lai  (3).  It  also  questions 
whether  the  obiter  dictum  in  Ambalavana 
Chetty  v.  Singaravelu  Odayar  (9)  is  not  too 
broadly  stated.  In  1916  the  question  came 
before  Old  field,  J.,  and  Phillips,  J.,  Kathiri 
Unite  v.  Kutti  Chekkutti  Mudaliar  (12). 
They  held  that  a  landlord  could  sue  to 
enable  himself  to  fulfil  his  contract  to  give 
or  restore  possession  to  his  tenant.  Of 
course,  ifthe  ruling  stopped  at  the  words  uto 
give "  it  would  merely  re-affirm  Somai 
Ammal  v.  Vellayya  Sethurangam  (10)  but 
the  addition  of  the  words  "to  restore"  opens 
up  the  whole  question  and  in  effect  this  is, 
a  ruling  contrary  to  Ramanathan  Chetty  v. 
Pulikutti  Servai  (4)  Oldfield,  J.,  begins  by 
remarking  that  the  exposition  of  the  law 
in  (Ambalavana  Chetty  v.  Singaravelu 
Udayan)  (9)  is  consistent  with  the  decisions 
in  Narainasaivmy  Naidu  Garu  v.  Yerramali 
Ramkrishnayya  (13)  and  Somai  Ammal  v. 
Vellayya  Sethurangam  (10).  The  former 
merely  states  what  is  more  elaborately  de- 
veloped in  the  latter  ruling  that  a  landlord 
can  sue  in  order  to  fulfil  his  contract  to  put 
his  lessee  in  possession.  Of  course,  the 
broader  proposition  in  Ambalarana  Chetty 
v.  Singaravelu  Udayan  (9)  that  he  can  sue 
whenever  his  tenant  is  dispossessed  is  not 
inconsistent  with  these  rulings.  Then  Old 
Field,  J.,  finds  that  the  rulings  admit  ex- 
ceptions to  the  general  rule ;  though  it 
seems  that  they  establish  only  one  excep- 
tion, if  it  can  indeed  be  called  an  excep- 
tion. This  rule  is  that  on  the  date  of  the 
suit  the  landlord  must  show  that  he  has  a 
right  to  be  in  possession.  If  he  has  never 
put  his  tenant  in  possession  and  has  to  get 
possession  in  order  to  do  so,  he  has  a  right 
to  be  in  possession  and  his  suit  is  not  in 
contravention  of  the  rule.  But  when  it  is  also 
claimed  that  after  a  landlord  has  put  his 
tenant  into  possession  and  that  tenant  has 
been  dispossessed,  the  landlord  may  sue  to 
restore  his  possession,  it  is  not  to  set  up 
an  exception  to  the  rule,  it  is  to  negative 
the  rule  altogether.  Oldfield,  J.,  proceeds 
that  he  cannot  follow  Krishna  Nambiar  v. 
Secretary  of  State  (8)  in  so  far  as  it  rules 
that  a  landlord  cannot  give  or  restore. 
Krishna  Nambiar  v.  Secretary  of  State  (8) 
is  not  concerned  with  the  question  whether 
he  can  give  ;  but  it  certainly  rules  that  he 
cannot  restore  and  in  declining  to  follow 

(12)  39  Ind.  Pas.  425;  5  L  W.  330;   (1917)  M,  W.  N. 
339. 

(13)  5  Ind  Cne,  479;  33  M.  499;  (1910)  H,  W,  N,  221 
and  280  " 


[921.  0. 192flJ 

this  ruling  Oldfleld,  J.,  is  maintaining  the 
opposite  and  i;\vrr: 'line  Ramanathan  Chetti 
V.  Pulikutt  Servai  (4).  No  doubt  his  Lord- 
ship seeks  to  distinguish  this  ruling  by 
finding  on  ^the  facts  that  the  trespasser 
colluded  with  the  tenant  and  is,  therefore, 
(see  concurring  judgment  of  Phillips,  J.  j 
only  the  licensee  of  the  tenant  against 
whom  the  landlord  can  have  no  cause 
of  action  during  the  continuance  of  the 
lease.  But  in  Ramanathan  Chetty  v. 
Pulikutti  Servai  (4)  although  it  was  al- 
leged in  the  plaint  that  the  tenant  and 
trespasser  ,  had  colluded  there  is  no 
finding  to  that  effect  or  any  mention  of 
collusioain  the  body  of  judgment,  when 
their  Lordships  lay  down  the  elementary 
rule  they  are  not  (")n*i-'l"npir  collusion. 

Kathiri  Kutti  Musalic*  v.  Chek  Kutti 
Musalier  (12)  must  be  taken  as  contrary  to 
Ramanathan  Chetti  v.  Fulikutti  Servai  (4) 
in  fact  Phillips,  J.,  practically  states,  as 
much  in  his  concluding  sentence. 

The  whole  question  was  then  reviewed  by 
Wallis,  C.  J.,  in  Davood  Mohideen  Rowther 
v.  Jayarama  Iyer  ^14).  The  principle 
underlying  the  rule  is  fully  explained  and 
the  three  ruling  cases  Ramanathan  Chetti 
v.  Pulikutti  Servai  (4)  Krishnan  Nambiar  v. 
Secretary  of  State  (8)  Sita  Ram  v.  Ram  lal  (3) 
are  approved.  The  acceptance  of  the  obitor 
dictum  in  ^mbalarana  Chettij  v.  Singara- 
velu  Odayar  (9)  as  authority  is  depreciated 
with  an  expression  of  regret  that  Sita  Ram 
v.  Ram  Lal  (3)  was  not  brought  to  the  notice 
of  the  learned  Judge.  The  learned  Chief 
Justice  even  goes  so  far  as  to  find  that  the 
landlord  cannot  sue  in  order  to  fulfil  his  con- 
tract, at  page  940*  differing  from  the  view 
already  expressed  by  Sadasiva  Iyer,  J  ,  in 
(Somai  Ammal  v.  Vellayya  Sethuranaga 
(10)  which  view  Sadasiva  Iyer,  J.,  re-affirms 
in  a  dissenting  judgment  in  this  case;  |  Udoy 
Kumar  Dass  v.  Katyani  Debi  (15)]  it  is  held 
that  the  veivv  of  Sundara  lyar,  J ,  in 
(Ambalavelu  Chetty  v.  Singaravelu  Udya  (9) 
cannot  be  justified  on  principle  and  is 
opposed  to  what  :-:•«:•;  *  '  Tx>rd  Alver- 
stone,  0.  J.,  as  -.  •••-..-  :  doctrines 
[Walter  v.  Yolden  (16).] 

I  think  it  clear  from  the  above  exami- 
nation of  the  authorities  that  the  view 

(14)  62  Ind.  Gas.  281;  41  M.  037;  40  M  L  J  38,  13 
L.  W.  281;  (1921)  M.  W.  N.  43;  29  M  L.  T.  78 

(15)  60  Ind.  Cas  126;  41)  0  048  at  p.  064;  35  C  L  J 
292;  (1922)  A.  I  R  (C  ;  87. 

(16)  (1902)  2  K.  B  301;  71  L.  J.  K.  B  693;  87  L.  T. 
97;  51  W.  R  46;  18  T  L  R  668 


SAKT  SAHAI  fc,  CHHOTAI  XUfcMI. 


of  the  learned  District  Munsif  is  well-sup- 
ported and  there  is  no  justification  for 
revision.  1  consider  that  the  question  is 
concluded  by  Sita  Ram  v.  Ram  Lal  (3) 
Ramana'hm  Chetty  v.  Pullilcutti  Servai  (4) 
Davood  Mohideen  Rowther  v.  Jayaram  Iyer 
(14).  The  petition  is  dismissed  with  costs, 
v.  N.  v,  Petition  dismissed. 

Z.  K. 


OUDH  CHIEF  COURT. 

FIRST  EXECUTION  OF  DECKBB  APPEAL 

No.  74  OF  1924. 

November  23,  1925. 

Present:— Mr.  Justice  Hasan  and 

Justice  Raza. 
SANT  8 A.H  AI— APPLIC  \XT— APPELLANT 

cersus 

CHHTTTAT  KURMI  AND  ANOTHER  - 
DEFENDANTS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1008),  s.  1^8— 
Limitation  Act  (IX  of  1008),  .<?.  6  -Mortgage,— Redemp- 
tion suit— Deere tal  amount  determined  by  Trial  Court 
enhanced  by  Appellate  Court—  Restitution  -Applica- 
tion by  mortgagee  for  recovery  of  mesne  profits,  whe- 
ther application  for  erecitl ion- -Minority  of  applicant 
--Limitation,  extension  of 

Where  in  pursuance  of  a  decree  for  redemption 
passed  by  a  Trial  Court,  the  plaintiff  pays  the  amount 
mentioned  in  the  decree  and  obtains  possession  of  the 
moitgaged  property,  but  the  amount  payable  under 
the  decree  is  subsequently  enhanced  by  the  Appellate 
Court,  an  application  by  the  mortgagee  to  recover 
mrtsne  profits  from  the  mortgagor  by  way  of  restitution 
for  the  period  between  the  date  on  which  possession 
of  the  mortgaged  property  was  taken  by  the  mort- 
gagor und  the  date  on  which  he  paid  the  difference 
between  tho  decretal  amount  payable  under  the 
decree  of  the  Trial  (-ouit  and  that  payable  under  the. 
decree  of  th?  Appellate  Court,  is  an  application  for 
execution  within  the  meaning  of  s  6  of  the  Limitation 
Act  andUie  mortgagee  is  entitled  to  the  benefit  of 
the  provisions  of  that  section  [p  24,  cola.  1  &  2] 

[Case-law  discussed  ] 

Appeal  against  an  order  of  the  Sub- 
ordinate Judge,  Fyzabad,  dated  the  22nd 
September  1924. 

Mr.  II.  K.  Ghosh,  for  the  Appellant. 

Messrs.  U.  Husain  and  N iamatullah,  for 
the  Respondents. 

JUDGMENT.— This  is  an  appeal  from 
the  decree  of  the  Subordinate  Judge  of 
Fyzabad,  dated  the  22nd  September  1924. 
The  facts  are  few  and  simple.  On  the  12th 
August  1911  the  respondents  brought  a  suit 
for  redemption  of  a  usufructuary  mortgage 
dated  the  2:}nd  August  1903  against  the 
appellant.  In  defence  the  appellant  claimed 
money  due  under  two  deeds  of  further 


SANT  8AHAI  V.  CHHDTAI  KURMI. 


charge  also  as  the  price  of  redemption.  The 
Trial  Court  rejected  the  respondents1  claim 
and  decreed  redemption  on  payment  of 
Ks.  11,329-7.  This  amount  was  paid  within 
the  time  fixed  by  the  redemption  decree  to- 
gether with  a  certain  amount  of  costs  and 
the  respondents  entered  into  the  possession 
of  the  mortgaged  property  on  the  25th 
August  1912.  On  an  appeal  to  the  late  Court 
of  the  Judicial  Commissioner  of  Oudh  the 
decree  of  the  Trial  Court  in  the  matter  of 
the  amount  redemption  money  was  varied 
in  favour  of  the  appellant  and  the  respond- 
ents were  ordered  to  pay  the  sum  of 
Rs.  12,119-15-3  to  the  appellant  for  the 
purpose  of  redeeming  the  mortgaged  pro- 
perty. On  the  12th  November  1913  the 
respondents  paid  the  difference  between  the 
two  sums  of  money  payable  under  the  decree 
of  the  Trial  Court  and  the  decree  of  the 
Judicial  Commissioner's  Court. 

The  application,  out  of  which  this  appeal 
arises,  was  made  on  the  28th  May  1923  by 
appellant  for  the  purpose  of  recovering 
Rs.  2,665  from  the  respondents  as  mesrie 
profits,  by  way  of  restitution,  for  the  period 
between  the  dates  of  the  two  deposits 
already  mentioned.  The  application  was 
made  under  s.  44  of  the  C.  P.  C.  To  save 
limitation  the  appellant  claimed  the  benefit 
of  s.  6  of  the  Indian  Limitation  Act,  1908, 
for  the  reason  that  at  the  time  from  which 
the  period  of  limitation  was  to  be  reckoned 
he  was  a  minor.  One  of  the  pleas  in  defence 
to  the  appellant's  claim  was  that  the 
provisions  of  s.  C  of  the  Indian  Limitation 
Act  were  inapplicable  because  the  appel- 
lant's application  was  not  "an  application 
for  execution  of  a  decree,"  to  which  those 
provisions  apply.  The  Court  below  has 
accepted  this  plea  and  dismissed  the  appli- 
cation. 

We  are  of  opinion  that  the  appeal  suc- 
ceeds. We  are  unable  to  discover  any 
reason  in  principle  for  entertaining  the 
view  that  an  application  made  for  restitu- 
tion under  s.  144  of  the  C.  P.  C.  is  not  an 
application  for  the  execution  of  a  decree. 
This  is  particularly  true  in  a  suit  founded 
on  a  p- ,  rluMiro  to  which  the  provisions  of 
O.  XXXI V  of  the  C.  P.  C.  apply.  The  decree 
in  a  suit  for  redemption,  as  the  present  suit 
was,  enures  to  the  benefit  of  the  mortgagor 
and  the  ir.orStMirw  alike.  Such  a  decree 
imposes  an  obligation  on  the  mortgagor  in 
favour  of  the  mortgagee  for  payment  of  the 
mortgage-money  and  in  the  event  of  pay- 
the  mortgagor  enters  into  possession 


[9210,19263 

when  the  mdrtgage  is  usufructuary  and  in 
default  the  mortgagee  is  given  the  right  to 
bring  the  property  to  sale  in  satisfaction 
of  the  mortgage-money.  The  final  decree, 
therefore,  which  the  Court  of  the  Judicial 
Commissioner  passed  imposed  the  liability 
of  payment  tof  a  further  sum  of  money  on 
the  mortgagor  before  he  was  entitled  to 
take  possession.  This  obligation  or*  the 
part  of  the  mortgagor  created  a  correspond- 
ing right  in  favour  of  the  mortgagee  to 
remain  in  possession  until  full  payment  as 
directed  by  the  final  decree  was  made.  We, 
therefore,  have  no  hesitation  in  holding 
that  the  present  application  is  in  substance 
an  application  made  for  seeking  the  aid  of 
the  Court  in  working  out  the  final  decree. 

The  right  of  restitution  arises  under  a 
decree  of  the  Court  of  Appeal  which  decree 
has  varied  or  reversed  the  decree  of  the 
Court  of  first  instance.  Restitution  is  thus 
a  benefit  which  would  only  accrue  by  exe- 
cuting the  decree  of  the  Court  of  Appeal, 
Under  the  old  C.  P.  C.  an  application 
made  under  s.  583  of  that  Code  was  treated 
by  their  Lordships  of  the  Privy  ^  Council 
as  an  application  for  execution  in  Prag 
Narain  v.  Kamakhia  Singh  (1).  A  Divi- 
sional Bench  of  the  High  Court  at  Allah- 
abad in  the  case  of  Jiwa  Ram  v.  Nand 
Ram  (2)  has  expressed  the  opinion  that  the 
law  as  enacted  in  s  144  of  the  new  Jode  is 
different  from  what  it  was  in  s.  583  of  the 
old  Code.  With  great  respect  we  are  unable 
to  agree  with  that  opinion.  It  is  true  that 
the  words  "execution"  and  "to  execute'* 
were  used  in  s  583  of  the  old  Code  and  are 
not  used  in  s.  144  of  the  new  Code,  but  this 
change,  in  our  opinion,  makes  no  difference 
in  substance.  Those  words,  it  appears  to  us, 
were  superfluous  and  the  law  remains  the 
same  in  spite  of  their  disappearance,  As 
we  have  said  before,  an  application  for 
restitution  is  the  same  thing  as  an  applica- 
tion for  execution  of  a  decree  passed  in 
appeal  when  that  decree  varies  or  reverses 
the  decree  of  the  Court  of* first  instance. 
The  view  taken  in  the  Allahabad  case  seems 
to  be  shared  by  some  of  the  Judges  of  the 
High  Court  at  Patna  [see  Balmakunda 
Marwari  v.  Basanta  Kumar  Dassi  (3)  and 

(1)  3  Ind  Cas  798;  31  A.  551;  10  C.  L.  J.  257;  11 
Bom.  L.  R.  1200;  6  M.  L.  T.  303;  14  G  W.  N.  55;  19 
M.  L.  J.  599;  13  O.  C,  180;  36  I .  A.  197  (P.  C.). 

(2)  66  Ind.  Cas,  144,  44  A.  407;  20  A.  L.  J.  226; 
(1923)  A.  I.  E  f  A )  223. 

(3)  78  Ind  Cas  200;  3  Pat.  371;  (1924=)  Pat.  33,  5  P^ 
L,  T.  Ho;  (WK)  A,  J.  R,  (Pat)  I, 


£12  X.  0. 1928]  AHMAD  BA1G  fl,  MODBL 

Krupasindhu  Roy  v.  Batthadra  Das  (4)  and 
also  by  the  late  Chief  Court  of  the  Punjab 
in  Ram  Singh  v.  Sham  Parshad  i(5).  With 
regard  to  these  cases  we  content  ourselves 
with  quoting  a  passage  from  the  judgment 
of  Macleod,  C.  J.,  in  the  case  of  tiamidalli 
v.  Ahmedalli  (6)  and  say  respectfully  that 
we  ^  entirely  agree  with  the  opinion  express- 
ed in  that  quotation,  which  is  as  follows :~— 
"No  doubt,  as  mentioned  by  Mr.  Mulla  in 
his  Code  of  Civil  Procedure,  last  edition, 
page  315,  a  different  view  has  4<  been 
taken  by  the  High  Court  of  Patna  and 
the  Chief  Court  of  the  Punjab.  With  all 
due  respect  to  the  learned  Judges  of 
of  those  Courts,  it  appears  to  me  that  tfce 
decision  I  have  referred  to  is  correct,  and 
that  an  application  for  restitution  cannot 
be  ^  treated  as  anything  else  than  an  appli- 
cation for  execution  of  the  decree  of  the 
Appellate  Court.  It  is  the  decree  of  the 
Appellate  Court  which  entitles  the  sucess- 
ful  appellant  to  get  back  something  which 
he  had  been  deprived  of  by  the  decree  of 
the  lower  Court,  under  which  the  then 
successful  party  had  actually  received  pos- 
session. In  order,  therefore,  to  get  back 
what  he  has  lost,  the  successful  appellant 
must  apply  for  execution  of  the  order  which 
entitles  him  to  get  back  that  possession.11 
In  Kurgondiganda  v.  Ninganganda  (7)  it 
was  held  that  the  provisions  of  s.  G  of  the 
Indian  Limitation  Act  applied  to  an  appli- 
cation made  under  s.  141  of  the  C.  P.  C.,  in- 
asmuch as  that  was  an  application  for  exe- 
cution of  a  decree.  Another  case  decided 
by  the  Bombay  High  Court  on  the  same 
lines  is  ^Shirbai  v.  Yesu  (8).  We  wish  to 
emphasize  that  the  view  which  weare taking 
is  supported  by  the  authority  of  the  opinion 
of  Sir  Dawson,  Miller,  C.  J.,  of  the  Patna 
High  Court  in  the  case  of  Basanta  Kumari 
Dassi  v.  Balmakund  Marwari  (9).  Our  opin- 
ion is  further  fortified  by  the  decision  of  a 
Bench  of  the  Madras  High  Court  in  the 
case  of  Sumasundaram  Filial  v.  Chokkal- 
ingam  Pillai  (10).  The  same  view  seems 
to  have  been  taken  by  the  Calcutta  High 
Court  in  Madan  Mohan  Dev  v.  Nogendra 


(4j  47  Ind  Cas.  47;  3  P  L  J  367 

(5)  44  Ind  Cas.  301;  67  P.  K.  1918;  36  P.  W  R. 
1918;  15  P.  L.  R.  1918. 

(6)  62  Ind.  Caa.  233;  45  B.  1137;  23  Bom.  L.  R.  480. 
m  41  Ind.  Gas.  238;  41  B.  625,  19  Bom.  L,R  638. 
(B)  48  Ind.  Cas.  130;  43  B.  235;  20  Bom.  L.  R.  925. 

A  ^  P  I?d  Oas-  918»  2  Pat-  *277*>  <1923)  pat' 
A  I.  R.  (Pat.)  371;  1  Pat  L.  R.  338. 

(10)  38  Ind.  Cas.  806,  40  M,  780;  5  U  W,  267, 


MILL  KAGPUR,  LD.  25 

Nath  Dey  (11)  and  Gtngadhar  Maruuri    v. 
Lachman  Singh  (12), 

On  the  gounds  stated  above,  we  allow 
this  appeal,  set  aside  the  decree  of  the 
lower  Court  and,  as  the  decision  of  that 
Courb  had  proceeded  on  a  preliminary  point 
we  remand  the  case  under  O.  XLI,  r.  23, 
of  the  C.  P.  CM  with  directions  that  the  case, 
be  re-entered  in  the  proper  register  to  its 
original  number  and  disposed  of  accord- 
ing to  law.  The  appellant  will  be  entitled 
to  his  costs  in  this  Court  in  all  events. 
The  costs  in  the  lower  Court  will  abide  the 
result. 

z.  K.  Appeal  allowed. 

(11)  39  Ind.  Cas.  640;  21   C.  W.  N.  541. 
(12;  6  Ind  Cas.   125;  11  C.  L  J.  541. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

FIRST  CIVIL  APPEAL  No.  14  OF  1925. 

June  30,  1925. 

Present: — Mr.  Findlay,  Officiating  J.  C, 

Mirza  AHMAD  B AIG  AND  OTHERS  — 

DEFENDANTS — APPELLANTS 

versus 

MODEL  MILL  NAGPUR,  LTD.— PLAINTIFF 
— RESPONDENT. 

Transfer  of  Property  Act  (IV  of  1882),  s.  100— 
Charge,  oral,  legality  of — Bcma  fide  purchaser  for 
vfilue,  whether  affected — Benami  transaction — Proof, 
nature  of 

A  charge  may  be  created  orally  in  India.  If  it  is 
in  writing  the  document  creating  it  must  be  registered, 
[p  27,  col  1.] 

A  charge  cannot  be  enforced  against  a  bona  fide, 
purchaser  for  value  and  the  absence  of  the  publicity 
which  is  secured  by  rrgi-lrMtMii  cannot  in  the  case 
of  an  oral  charge  prejudice  the  right  of  third  parties 
dealing  with  the  property  for  value  in  good  faith. 
[ibid.] 

In  view  of  the  extraordinary  prevalence  of  benami 
transactions  in  India,  even  a  slight  quantity  of  evi- 
dence may  suffice  to  prove  it.  [p  27,  col  2  ] 

Appeal  against  a  decree  of  the  Sub- 
Judge,  First  Class,  Nagpur,  dated  the  31st 
October  1924,  in  Civil  Suit  No.  192  of 
1953. 

Mr.  V.  N.  Herlekar,    for  the  Appellants. 

Mr.  M.  B.  Kinkhede,  R.  B  ,  for  the  Re- 
spondent. 

JUDGMENT.— The  plaintiff-respond- 
ent, the  Model  Mills  Nagpur,  Limited, 
sued  the  defendant  appellants  in  the  Court 
of  the  Subordinate  Judge,  First  Class,  Nag- 
pur,  for  possession  of  a  house  situated  on 
the  outskirts  of  Nagpur  and  for  damages 
thpreaucnt. 

The  first  three  defendants  are  real 
;  the  defendants  Nos.  4  and  5  are 


26 


AHMAD  BAIG  V.  MODEL  MILL  NAGPUfl,  LD; 


the  minor  sons,  and  defendant  No.  6  the 
minor  daughter  of  defendant  No,  1;  de- 
fendant No.  7  is  the  minor  daughter  of  de- 
fendant No.  2;  and  defendant  No.  8  is  the 
mother-in-law  of  defendant  No.  2. 

By  a  registered  sale-deed,  dated  the 
27th  ol  January  1923  (Ex.  P-2),  the  first 
seven  defendants  sold  the  house  in  suit  to 
the  plaintiff  Company.  The  plaintiff's  case, 
further,  was  that  after  the  execution  of  the 
sale-deed  the  first  seven  defendants  being 
the  vendors,  requested  the  Managing 
Director  of  the  Model  Mills,  Sir  M.  B. 
Dadabhoy  to  allow  them  to  occupy  the  pre- 
mises on  sufference  for  a  period  of  two 
months  only,  which  was  to  expire  on  the 
31st  of  March  1923,  This  was  permitted.  On 
lObh  March  1923  registered  notices  were  sent 
to  the  iirst  three  defendants  requiring 
them  to  vacate  «the  premises  by  the  date 
in  question,  and  holding  them  liable  for 
damages  if  they  failed  to  do  so.  Defend- 
ants Nos.  1  and  2  wrote  in  reply  to  say 
that  they  had  already  surrendered  the 
house,  while  defendant  No.  3's  notice  came 
back  endorsed  as  refused.  The  plaintiff's 
case  further  was  that  the  first  three  defend- 
ants and  defendant  No.  8  had  colluded 
and  that  the  latter  defendant  had  been  dis- 
honestly set  up  to  obstruct  the  plaintiff 
from  getting  possession,  the  object  being 
to  obtain  further  money  in  respect  of  the 
sale  transaction  out  of  the  Company.  Pos- 
session of  the  house  was  accordingly  claim- 
ed, as  well  as  damages  for  seven  months 
from  the  1st  of  April  to  the  31st  of  October 

1923 

Defendants  Nos.  1,  2,  4,  5  and  6  ad- 
initted  the  execution  of  the  sale-deed  and 
Stated  that  they  have  no  interest  therein. 
The  case  proceeded  ex  parte  against  de- 
fendant No.  3,  while  as  regards  the  minor 
defendant  No.  7  her  father  defendant  No.2 
refused  to  act  as  guardian  ad  litem  and 
accordingly  defendant  No.  8  was  so  ap- 
pointed flhe  real  contesting  defendants, 
i.  e.,  defendants  Nos.  7  and  8,  took  up  the 
following  position. 

Their  defence  was  that  defendants 
Nos.  1,  2  and  3  had  no  right  to  sell  the 
property  in  suit,  that  the  defendants  Nos. 
7  and  8  each  had  interest  in  it,  that  the 
house  site  was  bought  by  defendant  No.  3 
and  the  late  Hamidabibi,  wife  of  defend- 
ant No.  2,  by  a  sale-deed  dated  the  27th 
of  October  1919,  and  that  they  had  built 

e  bouse  thereon.  Further,  it  was  alleged 
for  the"  construction  ol  the  house  the 


defendant  No.  8  and  Mu&tmmat  Rahani- 
bibi,  the  mother  of  the  first  three  defend- 
ants had  each  advanced  Rs.  6,000  on 
the  understanding  that  the  entire  premises 
should  remain  in  their  possession  as  a  sort 
of  a  possessory  mortgage  till  the  re-pay- 
ment of  the  whole  amount.  Further  pleaa 
.  as  regards  the  shares  of  the  various  de- 
fendants in  the  property  were  offered,  which 
it  is  unnecessary  to  consider  at  present. 

In  the  first  Court  the  original  Judge 
who  dealt  with  the  case,  gave  a  finding 
as  regards  the  alleged  advance  of  Rs.  12,000 
by  the  defendant  No.  8  and  Rahanibibi. 
This  finding  was  that  the  alleged  con- 
tract of  possessory  mortgage,  not  being 
in  writing  and  registered,  could  not  be 
proved  by  oral  evidence.  The  Subordinate 
Judge  who  finally  dealt  with  the  case 
found  that  the  sale  in  favour  of  the  plaint- 
iff had  been  duly  proved  and  that  con- 
sideration had  passed.  He  also  held  that 
Hamidabibi  had  been  a  mere  benami  pur- 
chaser of  the  site  and  had  no  real  interest 
therein  or  in  the  house  in  suit.  As  regards 
defendant  No.  8,  she  was  also  held  to  have 
no  interest  in  the  house  in  suit.  It  was 
further  held  that  the  plaintiff  Company 
had  no  knowledge  whatever  of  defendant 
No.  8  having  any  right  or  interest  in  the 
property  when  the  sale-deed  in  its  favour 
was  executed.  Again,  it  was  held  that 
defendants  Nos.  1,  2  and  3  were  the  sole 
owners  of  the  house  and  that  the  names 
of  the  minor  defendants  were  only  included 
in  the  sale-deed  in  order  to  avoid  future 
trouble.  Other  incidental  findings  were 
given  which  need  not  be  repeated  here. 

On  appeal  the  first  position  taken  up 
was  that  the  lower  Court  was  wrong  in 
excluding  the  evidence  as  to  the  alleged 
advance  of  Rs.  12,000  by  defendant 
No.  8  and  Rahanibibi.  It  is  now  urged 
that  defendant  No.  8  had  never  claimed 
mortgage  interest  in  the  house.  It  is  not  easy 
to  see  how  this  position  can  now  be  consist- 
ently taken  up,  in  view  of  the  latter  portion 
of  para.  2  of  these  defendants1  written  state- 
ment on  the  record.  The  language  used 
in  this  written  statement  was  inartistic  from 
the  legal  point  of  view  ;  but  if  it  can  fairly 
be  construed  at  all,  it  certainly  implies  that 
a  mortgage  like  lien  existed  on  the  property. 
It  is  urged  that  the  right  the  defendant 
No.  8  claimed  to  have  over  the  property 
might  be  described  as  a  charge,  and  I  have 
been  referred  to  the  fact  that  under  the 
Transfer  of  Property  Act  there  is  no  pro- 


t92  I.  0. 1926J 


BA1G  V.  MODEL  MILL  NAGPUR,  LD, 


27 


prescribing  a  definite  mode  in  which 
a  charge  should  be  created  ;  but  it  seems  to 
me  perfectly  immaterial,  however,  for  the 
purposes  of  the  present  case  to  go  into  this 
question,  for  the  simple  reason,'  that  a  charge 
cannot  be  enforced  against  a  bona  fide 
purchaser  for  value.  That  is  indeed  "the 
reason  why  in  law  in  this  country  a  charge 
may  be  created  orally,  although,  if  it  is  in 
writing,  the  document  in  question  must  be 
registered.  Thus,  the  absence  of  the  publi- 
city ^  which  is  secured  by  registration  can- 
not in  the  case  of  an  oral  charge  prejudice 
the  right  of  third  parties  dealing  with  the 
property  for  value  in  good  faith.  On  this 
part  of  the  appeal,  therefore,  my  finding  is 
that  on  the  pleadings  made  by  the  defend- 
ants in  the  lower  Court,  that  Court  was 
correct  in  its  excluding  the  oral  evidence 
as  to  the  alleged  agreement  with  reference 
to  defendants  No.  #  remaining  in  possession 
of  the  house  until  the  money  alleged  to  have 
been  advanced  by  her  for  the  purchase  was 
refunded.  If,  on  the  oilier  hand,  it  had 
been  permissible  to  regard  this  alleged 
agreement  as  constituting  a  charge,  the 
appellants  would  be  no  farther  than  before, 
BO  long  as  the  lower  Court's  finding  that  the 
Model  Mills  Company  had  no  notice  of 
defendant  No.  S's  claim  to  the  house  stands 
good.  No  document  is  in  existence  in  im- 
posing any  species  of  lien  or  charge  on  the 
estate,  and  clearly,  therefore,  from  this 
point  of  view  defendant's  only  remedy  in 
this  connection  is  agiinst  her  alleged 
debtors,  to  whom  she  had  advanced  the 
money  in  question. 

I  next  pass  to  the  second  ground  of 
appeal,  which  is  to  the  effect  that  the  lower 
Court  was  wrong  in  holding  that  Hamidabibi 
was  a  mere  bcnami  purchaser  of  the  site  of 
the  house  in  question  and  that  she  had  no 
interest  therein.  Tn  para.  2  of  the  plaintiff's 
written  statement,  dated  the  7th  of  March 
1924,  it  was  admitted  that  the  sale-deed  of 
27th  January  1923  contained  the  name  of 
Hamidabibi,  wife  of  Hafizulla  Baig.  It  is 
unfortunate  that  this  sale-deed  has  not  been 
available  in  the  case,  but  the  plaintiff's  sale- 
deed  (Ex.  P.  2)  recites  the  fact  that  the 
purchase  was  made  in  the  joint  names  of 
defendant  No.  3  and  of  defendant  No.  2's 
wife  Hamidabibi. 

Incidentally,  I  may  observe  here  that 
much  has  been  made  by  Counsel  for  the 
appellants  of  the  fact  that  one  of  the  most 
important  witnesses  in  this  case  is  Sir  M.  B. 
Dadabhoy,  a  gentleman  occupying  a  high 


position  in  Indian  society,  and  it  has  been 
suggested  that  his  evidence  requires  careful 
scrutiny.  I  fully  concur  that  this  gentle- 
man's evidence  must  receive  the  same 
scrutiny  as  that  of  any  other  witness.  But 
even  so,  I  cannot  see  the  slightest  reason 
for  supposing,  as  has  been" suggested  by  the 
appellants,  that  he  has  been  influenced  in 
his  attitude  as  a  witness  by  the  idea,  he  is 
said  to  have  entertained,  that  the  present 
suit  was  nothing  more  or  less  than  an  at- 
tempt at  blackmail  or,  as  I  have  preferred  to 
say,  an  attempt  by  private  individuals  to  ob- 
tain more  money  in  respect  of  the  sale  tran- 
saction out  of  a  wealthy  Company.  For  my 
own  part,  I  do  not  see  a  shadow  of  ground 
for  suspecting,  in  the  least,  the  bona  fides 
of  any  part  of  the  evidence  of  this  witness. 
He  states  that  on  making  enquiry  with  re- 
ference to  the  defendant's  title,  defendant 
No.  2  informed  him  that  his  wife's  name 
had  been  recorded  for  the  simple  reason 
that  he  himself  was  then  in  Government 
service  and  as  such  was  prohibited  by  rules 
applicable  to  him  from  ordinarily  acquiring 
immoveable  property.  When  to  this  all  im- 
portant admission  by  the  defendant  No  2  is 
added  the  fact  that  none  of  the  first  three 
defendants  entered  the  witness-box,  there  is 
not,  in  my  opinion,  the  slightest  reason,  for 
doubting  the  correctness  of  the  lower  Court's 
finding  on  issue  No  2  (a)  and  (6)  to  the  effect 
that  the  site  of  the  house  was  purchased,  in 
reality,  by  the  three  brothers,  defendants 
Nos.  i,  2  and  3  and  that  Hamidabibi  was  a 
mere  bcnami  purchaser. 

The  principles  enunciated  by  their 
Lordships  of  the  Privy  Council  in  Moham- 
med Mahbub  All  Khan  v.  Bharat  Iiulu  (1) 
are  fully  applicable  to  a  case  like  the  pre- 
sent. In  view  of  the  extraordinary  pre- 
valence of  benami  transaction  sin  India,  even 
a  slight  quantity  of  evidence  may  suffice 
to  prove  it.  In  this  case  we  have 
the  all  important  admission  of  defend- 
ant No.  2  himself  made  to  Sir  M.  B. 
Dadabhoy  to  the  effect  stated  above.  In 
this  connection  I  think  this  statement  com- 
bined with  the  fact  that  defendant  No.  2 
was  a  Government  servant  sufficiently  es- 
tablishes the  point,  especially  as  the  defend- 
ant has  not  gone  into  the  witness-box  on 
the  other  side.  I  may  add  on  this  ques- 
tion, viz,  with  reference  to  the  money  re- 
quired for  the  purchase  of  the  site  that  in 
the  defend  ants'  lengthy  written  statement 

(1)  53  Lid.  Caa,  5$;  23  C.  W.  N.  321;  (1919)  JI.  W, 
N.  507  (P.  0,). 


AHMAD  BAlO  V.  MODEL  MILL  NAGPUR,  LD, 


no  mention  was  made  of  the  fact  that  Hami- 
dabibi  had  advanced  the  money  for  the 
site.  This  story  seems  to  have  been  deve- 
loped for  the  first  time  by  defendant  No,  8 
when  examined  as  D.  W.  No.  1.  Kar  story 
then  was  that  she  advanced  Rs.  300  and 
Asiaualla  adva/ased  the  other  Its.  300.  The 
very  flimsy  evidence  of  this  witness  and  of 
Wazirkhan  (D.  W.  No.  3)  is,  in  my  opinion, 
wholly  insufficient  to  establish  this  story  of 
how  the  consideration  for  the  purchase  of 
the  house  site  was  obtained,  and  I  do  not 
think  that  it  could,  with  any  safety,  be  ac- 
cepted. 

The  third  ground  of  appeal  is  to  the 
effect  that  the  lower  Court  should  have  held 
that  the  plaintiff  Company  purchased  the 
house  with  fall  knowledge  of  defendants  Nos. 
7  and  8's  rights.  For  my  own  part,  I  find 
it  impossible  on  the  evidence  on  record  to 
admit  that  this  supposition  is  even  a  reason- 
able one  a  priori,  much  less  that  it  has  been 
established  by  the  evidence  on  record,  It 
is  perfectly  clear  that  Sir  M.  B.  Dadabhoy,  a 
lawyer  himself,  made  every  possible  en- 
quiry before  launching  into  the  purchase. 
In  this  conection  the  evidence  of  the  prior 
mortgagee  Narayan  is  highly  important. 
His  enquiries,  before  he  had  advanced  money 
on  the  property,  had  also  led  him  to  the 
sarneconclusion,  i.e  >that  the  defendants  Nos. 
1  to  3  were  the  owners  of  the  property.  It 
would  be  the  last  thing  in  the  world  which 
a  business  Company  like  the  plaintiff  one 
would  do  to  embark  on  a  purchase  of  this 
sort  without  making  adequate  enquiry,  and 
I  cannot  find  any  reason  whatever  for  hold- 
ing that  the  plaintiff  Company  had  any  no- 
tice whatever  of  defendant  No.  8  having 
any  interest  in  the  house. 

The  4th  ground  o£  appeal  is  to  the 
effect  that  the  lower  Court  ought  to  have 
held  that  defendant  No.  2  was  not  the  guard- 
ian of  defendant  No.  7  and  that  the  alleged 
sale  in  favour  of  the  plaintiff  was  not  for 
the  benefit  of  the  minor  and  was  not  bind- 
ing on  her.  On  this  point  I  have  little  or 
nothing  to  say.  I  fully  concur  with  the 
finding  of  the  lower  Court  on  issues  Nos.  5' 
and  6  which  relate  to  this  ground  of  appeal. 
It  is  indeed  suggestive  of  the  fact  that  there 
is  collusion  between  all  the  defendants  that 
the  .second  defendant  should  in  the  present 
suit  have  refused  to  act  as  a  guardian  for 
his  own  daughter.  This  step  has  presum- 
ably bsen  taken  with  the  object  of  support- 
ing the  plea  that  defendant  No.  7's  interest 
was  adverse  tp  that  of  defendant  No,  2, 


[92  I,  0, 1926] 

the  position  is  absurd  on  the  face  of  it  and 
requires  no  elaboration.  The  property  in 
question  clearly  belonged  to  the  first  three 
defendants  and  it  is,  moreover,  in  evidence 
that  the  heavy  prior  mortgage  in  favour  of 
P.  W.  No.  8  and  another  has  been  cleared 
off  as  a  result  of  the  present  sale. 

The  5th  ground  of  appeal  was  not  argued 
in  detail.  So  far  as  the  finding  on  issu6  No. 
8  is  concerned,  no  discussion  is  required. 
As  regards  the  applicability  of  s.  41  of  the 
Transfer  of  Property  Act  to  the  case  I 
concur  with  the  lower  Court's  finding.  This 
matter  is,  in  reality,  linked  with  the  question 
of  whether  there  has  been  a  collusion  bet- 
ween defendant  No.  8  and  the  defendants 
Nos.  1  to  3.  In  a  matter  of  this  sort  collusion 
cannot,  as  a  rule,  be  proved  by  specific  and 
directevidencebutcan  only  be  inferred  from 
the  general  circumstances  of  the  case,  For 
my  own  part,  I  think  all  the  circumstances 
are  redolent  of  suspicion  of  collusion  and 
fully  warrant  the  presumption  that  there 
has  been  such  collusion.  Sir  M.  B.  Dada- 
bhoy's  evidence  is  of  value  in  this  connec- 
tion. It  is  apparent  that  in  a  fruitless 
attempt  he  made  to  get  the  defendants 
to  vacate  the  house,  Sir  M.  B.  Dadabhoy 
had  spoken  with  defendant  No.  8  through 
a  window  and  it  is  significant  that  defend- 
ant No.  8  as  D  W.  No  1,  in  cross-examina- 
tion, practically  admitted  the  fact  This 
same  defendant,  (No.  8)  had  on  this  occasion 
informed  Sir  M.  B.  Dadabhoy  that  they 
would  vacate  the  house  when  defendant 
No.  2t  who  was  presumably  away  on  tour, 
had  returned.  I  utterly  disbelieve  the 
evidence  of  Musammat  Najmunnisa  In- 
deed, her  evidence,  read  in  itself,  is  to  be 
disbelieved  on  the  face  of  it.  Her  cock 
and  bull  story  that  she  had  been  on 
bad  terms  with  the  first  three  defendants 
for  a  year  and  a  half  and  that  they  had 
vacated  the  premises,  is  directly  contradict- 
ed by  Sir  M  B,  Dadabhoy 's  evidence,  who 
saw  defendant  No  3  there  during  the  time 
in  question.  In  this  connection  the  in- 
trinsic improbability  of  defendant  No.  8's 
story  is  apparent  on  the  face  of  it.  Her 
husband,  and  Excise  Inspector,  who  drew 
Rs.  150  a  month,  died  20  years  ago,  and  she 
alleges  that  he  left  Rs.  15,000  to  Rs.  20,000 
in  cash  and  ornaments  behind  him.  She 
cannot  even  tell  the  name  of  th°  Bank  in 
which  some  of  (his  monev  is  sai  I  to  be 
depcs*'r<3  The  evidence,  in  short,  proves 
that  thi.*i  woman  has  been  living  with  the 
other  defendants  for  many  years  past  and 


' 1.  0. 


SITAPAT  RAM  V.  MOHAMMAD 


has  been  in  constant  and  close  touch  with 
them.  It  is  impossible  to  suppose  that  she 
was  not  fully  aware  of  the  sale  transaction 
from  the  very  first  and  it  is  clearly  impossi- 
ble to  suppose  that  there  has  not  been 
direct  and  deliberate  collusion  between 
the  first  three  defendants  and  herself.  If  the 
evidence  of  Ramchandra  (P.  W.  No.  3;, 
Sir  M.  B.  Dadabhoy  (P.  W.  No.  7)  and 
Narayan(P,  W.  No.  8)  be  read  together, 
the  statements  of  these  witnesses  seem  to 
me  to  fully  warrant  the  presumption  of 
collusion.  From  defendant  No.  8's  talk 
with  Sir  M.  B.  Dadabhoy  at  the  house 
it  is  noticeable  that  she  did  not  even 
then  lay  any  claim  to  the  house  in  suit 
and  only  gave  an  evasive  reply  that 
possession  would  be  given  when  defendant 
No.  2  returned.  Defendant  No.  8  indeed 
alleges  that  on  this  occasion  she  told  the 
Model  Mills  people,  who  had  come  to  take 
possession,  that  she  would  not  vacate  the 
house  because  she  and  defendant  No.  7 
were  interested  therein,  but  I  find  it 
impossible,  for  one  moment,  to  accept  this 
story. 

Holding,  as  I  do,  like  the  lower  Court, 
that  all  these  defendants  have,  been  col- 
luding together,  the  first  three  defendants 
are  also  liable  on  account  of  niesne  profits 
as  claimed.  I  can,  in  short,  see  no  reason 
for  differing  from  the  findings  of  fact 
arrived  at  by  the  lower  Court.  The  case 
seems  to  me  a  very  clear  one,  in  which 
defendants  Nos.  1  to  3  and  defendant  No.  8 
have  at  the  last  moment  elaborated  between 
them  a  conspiracy  with  the  object  of 
defeating  the  plaintiff's  claim,  or  at  least 
of  inducing  the  plaintiff  to  make  a  further 
payment  so  as  to  obtain  the  acquiescence 
of  defendant  No.  8  to  the  Company 's  entry 
into  the  house.  As  already  shown,  the 
theory  of  mortgage  or  of  charge  is  in  any 
event  utterly  unavailable  to  defendant 
No.  8  in  the  present  case  as  an  answer  to 
the  plaintiff's  claim  to  enter  as  a  purchaser 
for  value.  Similarly,  in  view  of  the  finding 
as  regards  collusion,  the  defendants  Nos.  1 
to  3  as  well  as  defendant  No.  8  are  clearly 
liable  for  mesne  profits  to  the  plaintiff. 

The  result  is  that  the  appeal  is  dis- 
missed. The  appellants  must  bear  the 
respondent's  costs.  Costs  in  the  lower 
Court  as  already  ordered. 

An  application  has  also  been  filed  by 
the  plaintiff  under  s.  152  of  the  C.  P.  C.  to 
the  effect  that  there  has  been  an  arithmeti- 
cal or  clerical  mistake  in  the  decree  of  the 


lower    Court,    which    shows     the    fee    as 
Rs.  304,   whereas  it  ought  to  be  Rs.  344. 
This  is  clearly  so    and  the  corresponding 
correction  will  be  made  in  the  decree. 
G.  R.  D.  Appeal  dismissed. 


OUDH  JUDICIAL  COMMIS- 
SIONER'S COURT. 

FIRST  EXECUTION  OF  DECREE  APPEAL  No.  56 

OF  1925. 

October  26,  1925. 
Present :— Mr.  Ashworth,  A.  J.  C., 

and  Mr.  Neave,  A.  J.  C. 
Babu  SITAPAT  RAM— JUDGMENT-DEBTOR 
— APPELLANT 

versus 

Mirza  MOHAMMAD  ASQHAR  AND  ANOTHER 
— DECRKE- HOLDERS — RESPONDENTS. 

Execution  of  decree-  Proclamation  of  sale— Appli- 
cation of  decree-holder  relating  to  property  to  be  pro- 
claimed for  sale,  decision  of— Appeal,  absence  of— 
Judgment-debtor,  i^kether  bound. 

An  application  by  a  decree-holder  in  respect  of  the 
property  which  should  he  proclaimed  for  sale  in 
execution  of  the  dcciee  must  be  decided  by  the  P^xe- 
cution  Court,  and  the  order  of  the  Execution  Court 
deciding  such  an  application,  if  not  objected  to  by 
way  of  appeal,  must  bo  held  to  be  binding  on  the 
judgment-debtor  during  the  subsequent  stages  of  the 
execution  proceeding,  [p.  30,  col.  1.] 

Appeal  against  an  order  of  the  Subordi- 
nate Judge,  Fyzabad,  dated  the  25th  May 
1925.  * 

Messrs.  Wasi  Hasan  and  J.  Jackson,  for 
the  Appellant. 

Mr.  H.  K.  Dhaon  and  Niamatullah,  for 
the  Respondents. 

JUDGMENT.— This  appeal  arises  out 
of  an  application  made  by  the  appellant  to 
the  Subordinate  Judge  of  Fyzabad  in  the 
course  of  execution  proceedings.  The 
appellant  executed  a  mortgage  of  certain 
property  and  in  the  mortgage  it  was  men- 
tioned that  he  had  acquired  the  property 
under  a  certain  Will.  The  mortgagee 
obtained  a  decree  for  sale  of  the  property 
mortgaged  and  applied  in  execution  for 
sale.  The  execution  of  the  decree  was  trans- 
ferred from  the  Court  where  the  decree  was 
obtained  to  another  Court.  Before  the  sale 
proclamation  was  issued  the  decree-holder 
applied  that  he  had  come  to  the  conclusion 
that  the  Will  only  gave  the  mortgagee  a  life- 
interest.  Accordingly  he  asked  that  a  life- 
interest  and  not  an  absolute  title  to  the 
property  should  be  put  up  for  sale.  This 
application  was  granted  after  notice  had 
been  given  to  the  judgment-debtor  and  h^ 


<tJQ  APPAJEB  PILLA1  \ 

had  failed  to  appear.  This  was  on  the  14th 
February  1923.  The  sale  waa  postponed 
for  various  reasons  and  ultimately  the  20th 
April  1925  WHS  fixed.  On  the  18th  April 
the  present  appellant  filed  objections  to  the 
sale  taking  place.  Amongst  other  was  the 
objection  that  the  order  of  the  Court  allow- 
ing a  life-interest  only  to  be  sold  was  ultra 
vires.  The  lower  Court  decided  that  it  was 
not  competent  to  go  into  the  question  of 
the  validity  of  the  order  which  was  by  a 
predeeessor-in-office,  hence  this  appeal. 

We  are  of  the  opinion  that  the  decision 
of  the  lower  Court  is  correct.  It  is  not  neces- 
sary for  us  to  decide  whether  the  Court  was 
originally  correct  in  allowing  the  applica- 
tion of  the  decree-holder  for  sale  of  the  life- 
interest  only.  The  matter  was  settled  by 
an  order  of  the  Court  having  jurisdiction. 
Any  application  by  a  decree-holder  in 
respect  of  the  property  which  shall  be  pro- 
claimed for  sale  is  rightly  one  to  be  decided 
by  the  Execution  Court.  That  Execution 
Court  may  decide  it  rightly  or  wrongly. 
It  may  even  decide  that  it  has  jurisdiction, 
where,  on  a  proper  view  of  the  law,  it 
might  beheld  that  it  had  no  such  jurisdic- 
tion. The  time  for  appealing  against  the 
decision  has  gone  by  and  it  must  stand  as 
'a  final  decision.  Accordingly  we  see  no 
reason  to  interfere  with  the  decision  of  the 
lower  Court  and  this  appeal  is  dismissed 
with  costs. 
,  z.  K.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

SacoND  Civn,  APPEAL  No.  480  OF  1922. 

October  29,  1924. 
Present: — Mr.  Justice  Devadoss. 
APPAJEE  PILLAI— PLAINTIFF - 
APPELLANT 

versus 

MANIKA  MUDALI— DEFENDANT- 
RESPONDENT. 

Promissory  note,  unit  on — Consideration  alleged  by 
plaintiff^  disproof  of,  effect  of — Procedure. 

In  a  suit  on  a  promissory-note  plaintiff  stated  that 
cash  consideration  had  passed  at  the  time  of  the 
execution  of  the  promissory-note.  The  defendant's 
plea  was  that  the  pro -note  was  executed  as  a  sort  of 
security  for  his  good  conduct  in  connection  with  a 
partnership  which  was  being  carried  on  between  him 
and  the  plaintiff's  brother.  The  Trial  Court  found 
that  no  cash  consideration  had  passed  and  that  the 
story  of  the  defendant  was  true,  the  pro-note  having 
"been  executed  as  sscurity  for  accounting  for  sums 
drawn  by  the  defendant  aa  a  paitncr 

Held,  that  on  the  finding  of  the  Trial  Court  the  suit 
jva-i  bouaci  to  be  dismissed  and  that  that  finding  could 


'.  MANIKA  MUDAU.  [92  I.  0.  1926,] 

not  be  construed  as  declaring  the  contingent  liability 
of  the  defendant  at  the  time  of  the  settlement  of 
accounts. 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Vellore, 
in  A.  8.  No.  13G  of  1921,  preferred  against  a 
decree  of  the  Court  of  the  District  Munsif, 
Tirupathur,  in  0.  8.  No.  361  of  1919. 

Mr.  K.  V.  Sesha  lyengar  for  Mr.  V.  C. 
Seshachariar,  for  the  Appellant. 

Mr.  A.Suryanarayana,  for  the  Respond- 
ent. 

JUDGMENT.— The  only  point  urged 
in  this  second  appeal  is  that  the  Subordi- 
nate Judge's  finding  is  not  a  legal  finding. 
The  suit  is  on  a  promissory-note.  The 
plaintiff  stated  that  cash  consideration 
passed,  at  the  time  of  the  execution  of  the 
promissory-note.  The  defendant's  plea  was 
that  no  cash  consideration  passed  at  the 
time,  but  it  was  executed,  as  a  sort  of  secu- 
rity, for  his  good  conduct,  in  connection 
with  the  partnership  which  was  being  carri- 
ed on  between  him  and  the  brother  of  the 
promisee  of  the  promissory-note.  The 
Subordinate  Judge  found  that  no  cash 
consideration  passed  and  "the  story  of  the 
defendant  is  true.  Mr.  Sesha  lyengar 
wants  to  build  an  argument  upon  the  last 
but  one  sentence  of  his  judgment. 

"  The  result  is  inevitable  that  the  pro- 
missory-note Ex.  A,  renewing  Ex.  B  is  also 
a  security  merely  for  accounting  for  sums 
drawn  by  defendant  as  a  partner." 

From  this,  he  wants  to  argue  that  the 
Subordinate  Judge  found  that  there  was  a 
contingent  liability,  arising  at  the  time  of 
the  settlement  of  accounts.  I  am  not  pre- 
pared to  agree  with  him.  All  that  the 
Subordinate  Judge  was  required  to  find 
was  whether  the  story  of  the  plaintiff 
was  true  or  false  and  he  distinctly  held 
that  the  case  of  the  plaintiff  was  not 
true  and  the  case  of  the  defendant  was 
substantially  true.  That  being  so,  it  is 
unnecessary  to  consider  the  decisions  in 
Sri  Ram  v.  Sobha  Ram-Gopalrai  (1)  and 
Vishnu  Ramchandra  Joshi  v.  Ganesh 
Krishna  Sathe  (2),  relied  upon  by  Mr. 
Sesha  lyengar. 

The  second  appeal  fails  and  is  dismissed 
with  costs, 

V.  N.  V. 

z.  K.  Appeal  dismissed t 

(1)  67  Ind.  Cae  513,  44  A.  521;  20  A,  L.  J.  315;  4 
U.  P.  L.  R.  (A.)  153,  (1922)  A.  I.  R.  (A.)  2l* 

(2)  63  Incl.  Cas.  673,  45  B.  1155;  23  Bom.  L.  ft, 

488. 


[92  I.  0.-1&26J.  t?MAHABIR  PHASAD  TEWAfct  W.  JAUUNA  SINGH. 


PRIVY  COUNCIL. 

APPEAL  FROM  THE  PATNA  HIGH  COURT. 

July  21,  1925. 

Present: — Lord  Shaw,  Lord  Carson, 

Sir  John  Edge  and  Mr.  Ameer  All. 

MAHABIR  PRASAD  TEWARI— 

APPELLANT 

versus 

JAMUNA  SINGH  AND  ANOTHER— 
RESPONDENTS. 

Ejectment—Jus  terfcii,  plea  of,  whether  can  be  taken. 

In  an  action  of  ejectment  the  defendant  is  entitled 
to  plead  in  defence  the  right  -  of  some  one  having  a 
superior  or  equal  title  with,  the  plaintiff  to  the  pro- 
perty in  dispute,  but  if  he  fails  to  prove  satisfactorily 
that  the  parties  whom  he  has  put  forward  are  entitled' 
to  the  property  in  preference  to  the  plaintiff  the 
plaintiff  would  be  entitled  to  a  decree,  [p.  33,  col.  2  ] 

Appeal  from  the  Patna  High  Court  (Sir 
Da wst>n  Miller,  0.  J.  and  Mr,  Justice  Ross) 


in  Appeal  No.  54  of  1921,  dated  16th  March 
1922  and  printed  as  66  Ind.  Gas.  88. 

Mr.  E.  B.  Raikes,  for  the  Appellant. 

Mr.  B.  Dube,  for  the  Respondents. 
JUDGMENT. 

Ameer  All,— This  appeal  arises  out  of 
a  suit  brought  by  the  plaintiff  Jamuna 
Singh  in  the  Court  of  one  of  the  Subordi- 
nate Judges  at  Patna  for  possession  of  a 
property  called  Mouza  Bariarpur  in  that 
District.  He  claims  to  have  acquired  his 
title  by  purchase  from  his  assignors,  de- 
fendants Nos.  11,  12  and  13. 

The  property  in  dispute,  though  of  com- 
paratively small  value  has  already  been 
the  subject  of  a  series  of  litigations. 

The  following  pedigree  will  give  a  general 
idea  of  the  various  parties  whom  the  plaint- 
iff has  impleaded  in  the  case: — 


Another  wife  m,  Hira  Misir  alias  Ramcharan  m.  Dayar  Kuar. 


f 


Kishen  Sewak 

Nihal 
Earn  Sewak 


Lukdeo,  Khijju  m.  Basant  Kuan  f " 

,  I  Gopalee  Misrain 

Ajani  Prasad  m.  TO§  Ghinoo  Mwir. 


Bid 


•ga 

Gopal  Missir,  defendant 

No.  5,  (claimed  and  was  made 

party  in  escheat  suit. 

Assigned  to  appellant  m 

1901J.) 


Daughter  m  Mawnu, 

j 
Hanuman 


Deokinandan      and 

2  brothers  (defendants 

Nos  2 — 4,  assigned  to 

appellant  in  1(J08 ) 


— •       Daughter, 


I 


Bhugwanti  t  Daughter  m.  [        ] 

Ganesh  Fande    R'-.^'.L-  •;•  }  -:i 
(claimed  and    (survived  Monakka 
gave  evidence   and  had  a  widow 
in  escheat          alive  in  1917. 
suit).  Claimed  and 

applied  to  be  made 
party  in  escheat 
suit). 


Daughter  m.  Raj  Dyal 

I 
Manohar. 


Daughter  m.  Khaderam 


,  Khad 


M  (other    Dhanukdari  m  Monakka 

Mfe)     (died  1872).        (died  13th  September 

1002). 


Balmukund, 

(defendant 

No.  6.) 


Chatterbhuj, 

(^defendant 

No.  7.) 


( 

Harihar,  (predeceased 
t  Monakka). 

Jagdco,  (alive  in 
11)17). 

Rajcndra, 
^defendant 
No,  11.) 
^  —  

Ram  Sohawan, 
(defendant 
No.  12  ) 

Ram  Nirtfkhan, 
(defendant 
No.  13.) 

Assigned  to  1st  respondent  in  1924. 

N.  B.  —The  nam£  of  Raghunandan's  father  doe»  not  appear  in  the  Record     He  had  two  wives,    one   6f 
was  the  sister  of  Dhahukdari  and    mother  of   Raghunarulan,  tihc  other  wife    b  eing  the   mother  of  Bal- 
joaukupd  and  Chatterbhuj  (defendants  Nos,  6  and  7). 


If  AfcABIfc  t>KA8AB  TEWAfel  V,  JAMtNA 


[92  L  £5. 


The  Mouza  Bariarpur  belonged  originally 
to  one  Dhanukdhari  Missir,  who  died,  it  is 
alleged,  some  50  years  ago,  leaving  him 
surviving  a  widow  named  Monakka  Kaur. 
As  Dhanukdhari  left  no  issue,  his  widow 
succeeded  to  the  estate  and  held  possession 
until  her  death  in  1902.  She  appears  to 
have  created  in  her  lifetime  a  zur-i-peshgee 
lease  in  respect  of  part  of  the  property  in 
favour  of  the  9th  defendant. 

The  plaintiff  alleges  that  on  Monakka's 
deaths  there  weie  no  agnatic  relations  of 
Dhanukdhari.  He  has,  however,  as  he  says,  . 
made  all  persons  claiming  reversionary 
rights  through  females  parties  to  the  suit. 
His  case  is  that  among  them  his  vendors, 
namely,  Rajendra,  Ram  Sohawan  and  Ram 
Nirekhan,  who  have  assigned  to  him  their 
rights  in  the  property  in  question,  are  pre- 
ferentially entitled  to  the  succession  of 
Dhanukdhari. 

The  1st  defendant,  Mahabir  Prasad 
Tewari,  the  present  appellant  before  the 
Board,  on  the  other  hand,  alleges  that 
Monakka  before  her  death  made  a  Will  in 
his  favour  and  devised  to  him  the  property 
in  suit,  and  that  he  obtained  possession  of 
the  same,  which  he  has  retained  until  now. 
It  appears  that  he  obtained  on  the  16th 
April,  1903,  Probate  of  the  Will  shortly  after 
the  death  of  Monakka  from  the  Court  of 
the  District  Judge  of  Patna.  It  is  not 
disputed,  however,  that  the  devise  by 
Monakka  was  invalid. 

The  first  defendant's  real  case  is  that  at 
tlie  time  inheritance  to  Dhanukdhari's 
estate  opened,  on  the  death  of  Monakka, 
the  preferential  heir  to  his  succession  was 
his  agnatic  relation  Gopal  Misser.  His 
place  is  shown  in  the  pedigree.  Gopal 
Misser  is  still  alive,  and  the  appellant  has 
obtained  from  him  an  assignment  of  his 
rights  and  interests.  The  appellant  has 
also  purchased,  it  appeals,  the  right  and 
interests,  if  any,  of  several  of  the  other 
defendants. 

In  1903  a  suit  was  brought  by  the  Sec- 
retary of  State  for  the  possession  of  Mouza 
Bariarpur  on  the  allegation  that  Dhanuk- 
dhari had  died  without  leaving  any  heir, 
that  Mahabir,  the  appellant,  had  no  title 
to  the  property  and  that  it  had  accordingly 
escheated  to  the  Crown.  It  is  alleged  by 
the  appellant  that  this  suit  was  really- 
prompted  by  defendant  No.  9, 

A  number  of  person,  almost  all  of  whom 
have  been  made  defendants  in  this  action, 
came  forward  as  claimants  in  the  suit 


of  the  Secretary  of  State.  The  suit  was 
finally  dismissed  by  the  High  Court  of 
Calcutta  on  the  14th  May,  1908. 

Soon  after  its  dismissal  the  appellant 
brought  a  suit  against  Adit,  the  9th  defend- 
ant, for  redemption  of  the  usufructuary 
mortgage  created  by  Monakka.  The  appel- 
lant based  his  right  toredeem on  the  assign- 
ment to  him  by  Hanuman  (whose  name 
will  be  found  in  the  pedigree)  of  his  lights 
and  interests  in  the  property,  and  the  first 
Court  made  a  decree  in  his  favour  in  these 
terms:— 

l<In  accordance  with  my  decision  of  the 
other  issues  I  hold  that  the  plaintiff  will 
get  a  declaration  that  he  is  the  proprietor 
of  the  disputed  Mouza  Baniarpur  as  men- 
tioned in  the  plaint  and  tltw,uthe  defendant 
No.  1  will  be  declared  to  b^  s  zarpeshgidar 
of  the  imoiiza,  and  it  will  alio  bfc  declared 
that  the  plaintiff  will  get  khas  possessson 
of  the  disputed  mouza  on  payment  of 
Rs.  200,  as  stipulated  in  the  2nd  ticca 
paita  (dated  1st  September  1902)." 

The  Subordinate  Judge  held  in  effect 
that  the  assignment  by  Hanuman,  whom  he 
considered  to  have  a  preferential  rever- 
sionary right,  entitled  the  defendant  to 
redeem  the  property  from  Adit.  This  view 
appears  to  have  been  accepted  by  the 
High  Court,  and  the  decree  of  the  first 
Court  was  affirmed.  On  an  appeal  to  this 
Board  it  was  declared  that  Eajendra  and 
his  two  brothers  were  preferentially  entitl- 
ed. The  decrees  of  the  Courts  in  India 
were  reversed  and  the  appellant's  suit  for 
redemption  was  dismissed  [Adit  Narayan 
Singh  v.  Mahabir  Prasad  Tiwari  (1)  ] 

The  present  suit  by  the  plaintiff  was 
brought  on  the  8th  September  1914.  It 
was  dismissed  by  the  Subordinate  Judge 
on  the  31st  October  1917,  on  the  ground 
that  he  (the  plaintiff)  had  failed  to  prove 
that  his  vendors  were  preferential  rever- 
sioners.  In  the  meantime,  as  already  stated, 
it  had  been  declared  by  the  Board  on  the 
18th  January  1921,  that  the  plaintiff's 
vendors  had  the  preferential  right,  and  the 
High  Court  has  accordingly  upheld  the 
claim,  and  made  a  decree  in  favour  of  the 
plaintiff. 

Counsel  for  the  appellant  admits  that  in 
face  of  the  ruling  by  the  Board  he  could 

(1)  60  Intl.  Gas.  251;  48  J.  A.  86;  40  M.  L.  J.  270; 
(1921)  M.  W.  N.  153;  19  A.  L.  J.  208;  2  P.  L.  T.  97: 
33  0.  L. '  J.  263;  29  M.  L.  T.  240;  6  P.  L.  J.  140;  23 
Bom.  L,  R.  692;  25  C.  W.  N.  842;  14  L,  W,  2Q 
(P.O.). 


1.  0,  1926J 


SADASHEO  V.  BAPU, 


not  impugn  the  reversionary  right  of  the 
plaintiff's  vendors,  but  he  contends  that  the 
defendant  is  in  posseseion  and  in  order  to 
eject  him  the  plaintiff  must  show  that 
there  is  no  other  reversionary  heir  in  the 
same  degree  or  neai'er  than  his  assignors 
whose  title  he  (the  defendant)  can  urge 
against  the  plaintiff's  claim  for  ejectment. 
In  other  words,  the  action  being  one  of 
ejectment  the  defendant  is  entitled  to  plead 
in  defence  the  right  of  some  one  else  equal- 
ly entitled  with  the  plaintiff's  vendors. 
Mr.  Justice  Bucknill  of  the  High  Court  of 
Patnain  his  careful  judgment  has  shown 
that  the  defendant  had  failed  to  prove 
satisfactorily  that  the  parties  whom  he  had 
put  forward  were  entitled  to  the  property 
in  preference  to  the  plaintiff's  vendors. 

The  evidence  on  which  the  appellant 
relied  has  beeiVread  to  their  Lordships,  and 
Mr.  Raikes  has  put  before  the  Board  every 
point  in  support  of  his  case.  Their  Lord- 
ships, however,  see  no  reason  to  differ  from 
the  High  Court.  They  will  humbly  advise 
His  Majesty  that  the  appeal  should  be 
dismissed  with  costs. 

z,  K.  Appeal  dismissed. 

Solicitors  for  the  Appellants  : — Messrs. 
Watlcins  and  fJitnter. 

Solicitor  for  the  Respondents  ; — Mr.  W. 
How  Daney. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  JUDICIAL  CASE  No.  46 

OF  1925. 

October  10,  1925. 

Present ;— Mr.  Fjndlay,  Officiating  J.  C. 
6  ADASH  BO—APPELLANT 

versus 
BAPU— RESPONDENT. 

Limitation  Act  (IX  of  1908),  s  J,  scope  of-  - 
Extension  of  time  for  appeal  —Counsels  wrung  advice, 
effect  of. 

A  party  in  whose  favour  a  decree  or  ordor  is  passed 
should  not  be  deprived  of  the  a  [vantage  of  his  vested 
right  in  the  same  unbss  there  haa  been  on  his  part 
83.113  conduct  raising  an  equity  against  him  or  there 
has  been  sonic  inevitable  accident,  [p  31,  cols  I  &  2] 

Dzttatraya  Sitaram  v.  Secretary  of  State  for  India, 
GO.Iud  Oa9.  714;  45  B  6(K'  23  Bom,  L  B.  89,  Skib 
Dayal  v.  •.  *,  ;  Prasad,  63  Ind.  Caa.  812;  41  A. 
63(5;  20  A.  JU.  J.  o7i;  (1022)  A  1  R  (A )  400  and 
Vaitfayanatha  Aiyar  v.  Govinlts-Mamy  Odayart  62 
Ind.-Ca9.  793;  41  M  L.  J,  03;  13  L.  W.  532;  (1921;  M. 
W.  N.  338,  referred  to. 

It  in  not  o;ich  and  ovory    mistake  of    a    Counsel 

3 


which  per  se  is  to  bs  considered  a  sufficient 
ground  for  giving  his  client  the  benefit  of  s  5  of  the 
Limitation  Act  [p.  ,'Ji,  col.  2.] 

A  mistaken  ad  vine  of  a  Counsel  that  an  appeal  lay 
from  an  order  dismissing  an  application  for  the 
amendment  oE  a  decree,  causing  a  bond  fide,  wrong  im- 
pre^sion  on  the  client  and  a  delay  in  the  filing  of  an 
appeal  from  another  appealable  order  in  execution 
proceeding,  cannot  furnish  a  sufficient  ground  for 
condoning  the  delay  under  s.  5  of  the  Limitation  Act. 
[p.  33,  col.  2,  p  31,  col.  2,] 

Appeal  against  the  orders  of  the  Court  of 
the  Additional  District  Judge,  Nagpur, 
dated  the  6th  November  1924,  and  18th 
December  1924,  in  Execution  Case  No,  7  of 
1924. 

Mr.  M.  B.  Kinkhede,  E.  B,,  lor  the  Appel- 
lant, 

Mr.  7^.  N.  Padhc,  for  the  Respondent. 

ORDER. — The  only  question  with 
which  I  am  at  present  concerned  is  whe- 
ther the  present  appeal  which  purports  to  be 
one  against  orders  in  Execution  Case  No.  7 
of  ly24  in  the  Court  of  the  Additional 
District  Judge,  Nagpur,  is  barred  by  limita- 
tion or  not.  Admittedly,  on  the  face  of 
things,  the  present  appeal  is  barred  by 
some  147  days  but  the  appellant's  case  is 
that  he  should  be  given  the  benefit  with 
reference  to  s.  5  of  the  Limitation  Act  of 
the  period  from  6th  January  1925  to  15th 
August  1925  during  which  he  was  bona  fide 
pursuing  a  wrong  remedy  in  First  Appeal 
No.  3  of  1925. 

The  facts  of  the  case  are  sufficiently 
clear  from  my  judgment  in  the  latter  appeal 
and  need  not  be  repeated  here.  Reliance 
en  behalf  of  the  appellant  has  been  placed 
on  the  following  decisions  : — 

Shib  Dayal  v.  Jayannath  Prasad  (1), 
Vaithyanatha  Aiyar  v.  Govindaswarni 
Odayar  (2)  and  Nagindas  Motilal  v.  Nilaji 
Moraba  Naik  (3). 

In  the  first  quoted  of  these  cases  the 
learned  Justices  held  that  an  honest  mis- 
take on  the  part  of  a  litigant  caused  by 
erroneous  advice  given  to  him  by  his  Vakil 
m  tlie  district,  by  reason  of  which  an  appeal 
was  not  filed  until  it  was  barred  by  limita- 
tion, was  a  good  ground  for  the  application 
of  s.  5  of  the  Indian  Limitation  Act.  la 
that  case  it  \vas  laid  down  that,  although 
the  primary  principle  in  dealing  with  this 
matter  must  be  tliat  the  proposed  respond- 
ent to  an  appaal  has  a  right  to  hold  his 

(U  OS  lai  On  812;  41  A.  G3G;  20  A.  L.  J.  674; 
(19J2)  A  I  tt.  (A.)  41)0. 

(4>  '02  lid.  Gas  7:)5;  41  M.  L.  J.  Co;  13  L.  W.  523; 
(1D21)  M  W.  N,  333 

(3)  80  lad.  Gas.  812;  26  Bom.  L.  R,  335,  43  B  412: 
(102 i)  A,  I,  K.  (B.)  30l>, 


KAfclNGAN  I?.  fiARIHAfc  DBTT. 


judgment  and  that  such  right  ought  not 
to  be  interfered  with  after  the  lapse  of  the 
prescribed  time  unless  there  are  special  cir- 
cumstances for  doing  so,  yet  in  each  case 
in  India  the  question  mu&t  be  considered 
on  its  merits.  In  this  particular  case  the 
deciding  factor  was  that  the  legal  profes- 
sion in  the  District  Court  was  not  in  such 
a  state  of  efficiency  as  to  make  it  expedient 
to  resile  from  the  degree  of  the  latitude 
which  the  Allahabad  High  Court  had  hither- 
to allowed  to  litigants  in  this  matter.  In 
the  Madras  Law  Journal  case  quoted  a 
delay  due  to  an  error  on  the  part  of  the 
Vakil  in  not  filing  an  application  with 
regard  to  the  legal  representative  with  a 
shorter  period  which  had  recently  been 
introduced  by  an  Amending  Act,  was  con- 
doned. The  decision  in  the  case  of  Nagindas 
Motilal  v.  Nilaji  Moraba  Na'ik  (3)  ran  on 
similar  lines.  An  analogous  decision  is  to 
be  found  in  Dattatraya  Sitaram  v.  Secretary 
of  State  for  India  (4).  Special  weight  has 
also  been  laid  on  the  decision  of  their  Lord- 
ships of  the  Privy  Council  in  Brij  Indar 
Singh  v.  KashiRam  (5).  In  that  case  how- 
ever, the  question  concerned  was  one  of 
whether  the  delay  due  to  an  application  for 
review  of  judgment  should  have  been  con- 
doned or  not. 

On  behalf  of  the  respondent  reliance 
has  been  placed  on  a  decision  of  Prideaux, 
A  J.  C.,  in  Ishwardas  v.  Bismilla  Khan  (6) 
Obviously,  however,  in  that  case  there  had 
been  gross  negligence  on  the  .part  of  the 
Pleader  concerned.  In  Padamraj  Fhulchand 
v.  Metsvice  Bhashan  Kesha  Ltd.,  (7)  by 
Prideaux  and  Kinkhede,  A.  J.  Ca.,  it  waa 
held  that  where  an  application  for  leave  to 
appeal  to  the  Privy  Council  was  made  29 
days  beyond  time  and  the  party  concerned 
alleged  that  he  was  misled  by  the  advice  of 
his  Counsel  who  was  not  aware  of  the  reduc- 
tion in  limitation  brought  about  by  Act 
XXVI  of  1920,  there  was  no  cause  for  con- 
doning the  delay.} 

In  a  case  like  the  present,  therefore, 
the  principle  from  which  we  must  start 
is  that  the  respondent  in  the  present  case 
has  a  vested  right  in  the  order  of  the 
lower  Court  in  his  favour  which  it  is  now 

(4)  60  Ind,  Cas.  744;  45  B.  607;  23  Bom.  L.  R,  89 

(5)  43  Ind.  Cas.  43;  45  C.  94;  33  M.  L.  J.  486-  22 
M.  L.  T.  362;  6  L.  W.  592;  126  P.  W.  E.  1917;  15  A 
L,  J.  777;  19  Bom.  L.  R.  866;  3  P.  L,  W.  313;  26  C.  L* 
J.  572;  104  P.  R.  1917;  (1917)  M.  W.  N.  811;  22  0  W' 
N.  169;  127  P.  L.  R  1917;  44  I.  A.  218  P.  C. 

(6)  72  Ind  Cas,  158;  (1923)  A.  I,  R.  (N.)  133, 
(1)  78  Ind.  Gas,  154;  (1924)  A,  I,  R,  (N.)  279, 


[921.0.  19261 


sought  to  attack  anpl  he  should  not  be 
deprived  of  this  advantage  unless  there  has 
been  on  his  part  some  conduct  raising  an 
equity  against  him,  or  unless  there  has  been 
some  inevitable  accident.  Now  it  cannot 
be  said  that  the  mistake  of  the  appellant 
committed  presumably  on  the  advice  of  his 
Counsel  in  seeking  to  attack  b£  way  of  an 
appeal  the  order  dated  22nd  October  1924, 
which  ^as  in  reality  an  order  dismissing 
an  application  for  amendment  of  a  decree, 
was  a  mistake  of  such  a  nature  as  to  amount 
to  an  inevitable  accident.  I  cannot  find 
in  the  circumstances  of  the  present  case 
any  such  special  features  as  would  permit 
of  my  holding  in  the  appellant's  favour  in 
this  connection. 

In  the  present  instance  the  execution 
proceedings  were  stayed  while  the  applica- 
tion for  amendment  of  the  decree  was  under 
consideration.  Immediately  the  execution 
proceedings  restored,  it  was  open  to  the 
appellant  to  have  appealed  against  the 
orders  of  6th  November  1924  and  18th 
December  1924.  Instead  of  doing  this  he 
deliberately  chose  to  pursue  the  remedy  of 
appealing  against  the  order  dismissing  an 
application  for  amendment  of  the  decree. 
It  is  not  each  and  every  mistake  of  a  Counsel 
which  per  se  is  to  be  considered  a  sufficient 
ground  for  automatically  giving  his  client 
the  benefit  of  p.  5  of  Indian  Limitation 
Act.  The  present  case  does  not  seem  to 
me  to  be  one  in  which  there  are  any  suffi- 
cient grounds  for  exercising  my  judicial 
discretion  in  the  way  I  am  asked  to  by  the 
appellant.  For  the  above  reasons,  therefore, 
I  am  unable  to  condone  the  delay,  which 
has  occurred  in  filing  the  present  appeal 
and  it  is  dismissed  asthne-barred.  Appellant 
must  bear  respondent's  costs.  I  fix  Rs.  30 
as  Pleader's  fees. 

G,  R.  D.  Appeal  dismissed. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  319  OF  1924. 

November  9,  1925. 

Present:  —  Mr,  Justice  Missra. 

KARINGAN  —DEFENDANT  No.  2— 

APPELLANT 


HAR1HAR  DUTT  alias  BHOLA— 
PLAINTIFF,  RAJA  RAM—  DEFENDANT  No.  1 

—RESPONDENTS. 
V.  P.  Land  fievenue  Act  (  III  of  mi\  9,  W  ($)-« 


r    [9§  I.  ti.  1926]  CHET  RAM  fl. 

Joint  holding— Partition,  suit  for,  whether  maintain- 
able. 

Section  39  (2)  of  the  U.  P.  Land  Revenue. Act  doss 
not  moan  that  no  division  of  a  tenancy  holding  held 
by  two  or  more  tenants  should  be  effected,  it  merely 
says  that  if  such  a  partition  has  been  arrived  at  and 
the  distribution  of  land  has  taken  place  it  shall  not 
be  recorded  in  the  revenue  papers  until  the  consent 
of  the  land-holder  has  been  obtained.  The  section  IH 
no  bar  to  a  claim  by  one  of  several  joint  tenants  to 
get  his  share  in  a  cultivatory  holding  divided  by 
means  of  a  partition  suit  filed  in  a  Civil  Court. 

Second  appeal  against  the  judgment  and 
decree  of  the  District  Judge,  Gonda,  dated 
the  23rd  April  1924,  confirming  that  of  the 
Sub-Judge,  Bahraich,  dated  the  29th  Octo- 
ber 1921. 

Mr.  H.  K.  Ghosh,  for  the  Appellant. 

Mr.  Aditya  ProsaJ,  for  the  Respondents. 

JUDGMENT.— This  is  a  second  appeal 
arising  out  of  a  suit  for  partition  of  a  cer- 
tain cultivatory  holding  in  village  Jaita- 
pur,  District  Gonda.  The  plaintiff  and 
defendants  Nos.  1  and  2  are  co-sharers  in  the 
said  holding  each  owning  one  third.  Both 
the  Courts  below  have  granted  to  the  plaint- 
iff a  decree  for  partition  in  respect  of  one- 
third  share  in  the  said  land.  ' 

The  only  point  that  has  been  argued  be- 
fore me  is  a  point  of  law  that  a  cultivatory 
holding  could  not  be  partitioned  without 
.the  consent  of  the  landlord,  which  has  not 
"been  obtained  in  this  case.  I  was  referred 
to  cl.  (2)  of  s.  39  of  the  Land  Revenue  Act 
(III  of  1901)  which  runs  as  follows :  -"No 
division  of  a  holding  occupied  by  two  or 
more  tenants,  and  no  distribution  of  the 
rent  payable  in  respect  thereof,  shall  be 
recorded,  unless  the  consent  of  the  land- 
holder and  of  all  the  tenants  concerned  has 
been  attested  before  a  Revenue  Court  or  the 
kanungo" 

The  argument  put  forward  is  precisely 
the  same  which  was  put  forward  before  the 
learned  District  Judge  and  I  fully  agree  with 
the  view  taken  by  him.  Section  39,  cl.  (2) 
does  not  mean  that  no  division  of  the  hold- 
ing held  by  two  or  more  tenants  should  be 
effected,  it  only  says  that  if  such  a  partition 
has  been  arrived  at  and  the  distribution  of 
land  has  taken  place  it  shall  not  be  recorded 
in  the  revenue  papers  until  the  consent  of 
the  land-holder  has-been  obtained.  It  is 
clear  that  this  provision  of  law  is  intended 
for  the  purpose  of  protecting  the,  rights  of 
the  land-holder.  Any  partition  of  a  cultiva- 
tory holding  should  not  obviously  be  binding 
upon  the  landlord  if  effected  without  his  con- 
sent. The  liability  for  the  payment  of  rent 


among  the  tenants  cultivating  a  particular 
holding  is  a  joint  one  and  they  are  not  en- 
titled to  convert  their  joint  liability  into  a 
separate  liability  without  the  consent  of  the 
landlord.    This,  however,    does    not  mean 
that  the  tenants  cannot  partition  their  hold- 
ing among  themselves.    As  an  illustration 
a  similar  case  of  a  partition  among    the 
co  sharers  of  a  village  possessing  proprietary 
rights  styled  as  an   "imperfect  partition" 
might  be  quoted.     The  co-sharers  an  such  a 
case  partition  their  joint  proprietary  hold- 
ing and  distribute  the  land  revenue  among 
themselves,  though  their  liability  for  the 
Government  revenue  still  continues  to  be  a 
joint  one.    I,  therefore,  am  of  opinion  that 
s.  39,  cl.  (:?)  cannot  be  construed  as  a  bar  to 
the  claim  of  ths  plaintiff-respondent  to  get 
his  share  in  the  cultivatory  holding  divided 
by  means  of  a  partition  suit  filed  in  a  Civil 
Court.    It  is,  however,  clear  that  no  such 
partition  could  be  recorded  in  the  revenue 
papers  until  the  landlord  had  given  his  con- 
sent to  it. 

The  appeal  fails  and  is,  therefore,  dis- 
missed with  costs. 

Appeal  dismissed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  2112  OF  1923. 

January  8,  1924. 

Present:— Mr.  Justice  Campbell. 
CHET  RAM— PLAINTIFF—APPELLANT 

versus 

Mus'immat  ILA1CHO  AND  OTHERS— 
DBFWND  VNTS— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  0.  XXII,  r. 
It,— Suit  for  possession  against  several  defendants  as 
trespassers,  dismissal  of — Appeal,  second— Death  of 
respondent— Lzgal  representatives  not  brought  on  re- 
cord—Abatement, extent  of. 

Plaintiff  sued  for  possession  of  certain  property  on 
ths  allegation  that  the  defendants  were  in  possession 
of  it  as  trespassers.  The  defendants  claimed  to  ba  in 
possession  of  the  property  as  the  reyersioners  of  the 
last  male-holder.  The  suit  was  dismissed  by  the 
Trial  Court  and  th3  dismissal  was  upheld  by  the 
lower  Appellate  Court  During  the  pendency  of  a 
second  appaal  by  the  plaintiff  in  the  High  Court  one 
of  the  d3f end  nits-respondents  died  and  his  legal 
representatives  were  not  brought  upon  the  record 
within  the  prescribed  period- 

Held,  that  inasmuch  as  the  relief  sought  against 
ths  defendants  in  the  plaint  was  joint  and  indivisible, 
the  appeal  must  ba  held  to  have  abated  in  toto  and 
that  it  was  not  open  to  tho  plaintiff  to  urge  that  as 
ths  defendants  claimed  to  be  in  possession  as  the 
reversionary  hairs  of  the  last  male-holder  the  appeal 


should  be  held  to  liave  abated  only  with  regard  to 
tlie  deceased  respondents'  share  m  the  estate  of  the 
last  male-holder  according  to  the  pedigree- table  set 
up  by  the  defendants. 

Second  appeal  from  a  decree  of  the 
District  Judge,  Hoshiarpur,  dated  the  4th 
July  1923,  reversing  that  of  the  Munsif, 
First  Class,  Kangra,  dated  the  10th  Novem- 
ber 1922. 

Lala  Mehar  Chand  Mahajan,  for  the  Ap- 
pellant. 

Lala  Fakir  Chand,  for  the  Respondents. 

JUDGMENT.— In  this  case  the  plaint- 
tin5  sued  for  possession  of  land  and  houses 
alleged  to  have  been  sold  tp  him  by  Musam- 
mat  Ilaicho  and  of  which  he  asserted  that 
defendants  Nos,  2  to  5  were  in  possession  as 
trespassers.  These  defendants  were  Gurdas 
subsequently  deceased,  his  son  Earn  Dev, 
his  grandson  Dasaundhi  Ram  and  his 
nephew  Ram  Lai.  The  suit  was  dismissed 
and  the  dismissal  was  upheld  by  the  leain- 
ed  District  Judge.  The  plaintiff  came  to 
this  Court  in  second  appeal  joining  as 
respondents  Musammat  Ilaicho,  Dasaundhi 
Ram,  Ram  Dev  and  Ram  Lai.  Dasaundhi 
Ram  is  dead  leaving  Ram  Dev  his  uncle  as 
his  legal  representative.  The  appeal,  how- 
ever, has  already  been  dismissed  against 
Ram  Lai  by  another  Judge  of  this  Court. 

A  preliminary  objection  is  raised  that 
the  appeal  cannot  proceed  against  Ram 
Dev  since  the  decree  in  favour  of  the 
defendants  other  than  Musammat  Ilaicho 
was  joint  and  the  plaint  alleged  them  to 
be  in  possession  jointly  as  trespassers. 

The  learned  Vakil  for  the  plaintiff-appel- 
lant resists  this  contention  stating  that  the 
finding  of  the  Court  below  was  that  these 
defendants  were  reversionary  heirs  of  Phillo 
the  deceased  husband  of  Musammat  Ilaicho 
and  in  possession  of  the  land  in  suit  right- 
fully in  that  capacity,  and  that  a  certain 
pedigree  table  set  forth  in  the  lower  Appel- 
late Court's  judgment  is  correct.  He  argues 
that,  according  to  this  pedigree  table,  the 
shares  of  each  of  the  defendants  can  be  as- 
certained and  separated,  and  that  the  appeal 
can  proceed  against  Ram  Dev  for  half  the 
land  in  suit. 

Authority,  however,  is  against  this  pro 
position.  The  situation  is  precisely  the 
same  as  if  the  appeal  had  abated  against 
Ram  Lai  and  there  is  a  case  practically  on 
all  fours  decided  recently  by  a  Division 
Bench  of  this  Court  It  is  Civil  Appeal 
No.  1776  of  1917  which  is  printed  as 
Sardara  v.  Allayar  (1),  In  that  case  the 

W  73  fod  CM  601;  (1923)  A,  I.  R.  (L.)  132, 


t'.  NAB AVAN,  [92  I.  0.  It  ?6J 

appeal  had  abated  against  one  of  several 
defendants-respondents  and  the  position 
taken  up  by  the  plaintiff-appellant  was 
that  the  defendants  were  all  trespassers 
and  were  all  in  occupation  of  the  land  in 
suit.  The  learned  Judges  refused  to  listen 
to  an  argument  that,  because  the  defend- 
ants owned  other  land  in  well  defined  an- 
cestral shares,  it  must  be  taken  that  they 
also  held  this  land  in  accordance  with  the 
same  ancestral  shares.  That  position,  they 
remarked,  was  contradictory  to  the  suit  as 
framed  and  after  considering  a  large  num- 
ber of  previous  decisions  of  the  Chief  Court 
and  of  this  Court  the  learned  Judges  decid- 
ed that  since  the  relief  sought  was  joint 
and  indivisible  against  allthe  defendants 
respondents  the  inevitable  consequence  of 
the  abatement  of  the  appeal  against  one  of 
them  was  the  complete  abatement  against 
all. 

The  situation  is  very  similar  in  th6 
present  case.  The  defendants  were  alleged 
in  the  plaint  to  be  trespassers  and  to  be  in 
possession  of  the  land  in  suit  jointly.  To- 
gether with  Gurdas  his  son  and  his  grand- 
son were  impleaded  as  defendants  and  to 
assert  now  that  the  defendants  were  in 
possession  in  definite  shares  according  to 
their  position  in  the  pedigree  table  is 
contradictory  to  the  suit  as  framed, 

For  this  reason  and  because  no  relief  is 
claimed  against  Musammat  Ilaicho  I  dis- 
miss the  appeal  with  costs, 

z.  K.  Appeal  dismissed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  34  OP  1924. 

October  31,  19*5. 

Present :—  Mr,  Findlay,  Officiating  J.  0. 

Musammat  AKABAI  AND  ANOTHER — 

APPELLANTS 

versus 
NARAYAN— RESPONDENT. 

Guardians  and  Wards  Act  (VIII  of  1890),  8*.  £5,  47 
Civil  Procedure  Code  (Act  V  of  1908},  0.  XLI11,  r, 
1  (d)— Exparte  order  under  st  So—Application  to 
cancel  order,  refusal  of— Appeal  against  refusal  order, 
maintainability  of. 

The  appellant  was  ordered  under  e.  25,  Guaidiana 
and  Wards  Act,  to  produce  a  minor  child  in  Court 
with  a  view  to  its  being  restored  to  the  Custody  of  its 
guardian.  The  older  was  passed  ex  partet  the  appel- 
lant being  absent.  On  the  next  date  of  the  hearing  of 
the  case,  the  minor  was  not  produced,  but  the  Court 
was  asked  to  cancel  its  previous  order.  The  Court 
refused  to  do  so,  and  the  appellant  appealed  against 
this  later  order; 

Held,  that  no  attempt  having  been  made  to  set  tisid§ 


[92  I.  0.  19.GJ      PORT  CANNING  AND  LAND  IMPROVEMENT  CO.  V.  HEIRS  OP  BAHIR  MOLLA.  37 

the  previous  order  as  an  ex  pa  He  order,  no  appeal  lay 
from  the  later  order  as  it  was  in  reality  a  consequential 
order  following  on  the  earlier  order. 

Appeal  against  an  order  of  the  District 
Judge,  Nagpur,  dated  the  15th  August  1925, 
in  Miscellaneous  Judicial  Case  No,  16  of 
1925. 

Mr.  B,  V.  Pradhan,  for  the  Appellants. 

Mr,  G.  R.  Deo,  for  the  Respondent. 


JUDGMENT.— This  is  an  appeal 
against  an  order  passed  by  the  District 
Judge,  Nagpur,  on  the  15th  August  1925, 
in  Miscellaneous  Judicial  Case  No.  16  of 
1925.  The  present  appellants  were  on  the 
23rd  July  ordered  to  produce  the  minor 
child  Tara  aged  seven  years  in  Court  with  a 
view  to  her  being  restored  to  the  custody 
of  her  father.  That  order  was  passed  ex 
parte,  the  present  appellants  being  absent. 
On  the  15th  August  1925,  the  next  date  of 
hearing,  the  minor  was  not  produced,  but 
the  District  Judge  was  asked  to  cancel  his 
order  of  the  23rd  July  1925.  This  the  Dis- 
trict Judge  refused  to  do,  particulaily  in 
view  of  the  present  appellants'  contumacy  in 
not  having  obeyed  the  previous  order  for  the 
production  of  the  minor  child  in  Court.  It 
was  only  apparently  as  a  consequence  of  an 
order  of  this  Court  dated  the  7th  Septem- 
ber 1925,  that  the  child  was  produced  at  a 
later  hearing  of  the  ca^e,  tur.,  on  the  19fch 
September  1925,  in  the  Court  of  the  District 
Judge. 

What  is  now  urged  is  that  the  minor 
should  not  fee  handed  over  in  the  custody 
of  her  father  until  the  objections  of  the 
present  appellants  to  this  course  have  been 
considered  and  adjudicated  upon,  It  seems 
to  me  that  the  appellants  have  mistaken 
their  remedy  in  this  connection.  The  order 
of  the  23rd  July  1925  was  an  order  passed 
ex  parte.  It  was  open  to  the  appellants  to 
have  applied  for  setting  aside  that  order 
and  that  they  did  not  do.  The  District 
Judge's  order  of  the  15th  August  liteS  was 
in  reality  a  consequential  order  following 
on  the  earlier  order  of  the  2«'jrd  July  1925, 
and  I  do  not  think  that,  in  the  circum- 
stances, any  appeal  lies,  against  the  order  of 
the  later  date  mentioned.  Even  if  I  could 
regard  the  present  appeal  as  an  applica- 
tion for  revision  of  the  older  of  the  23rd 
July  1925,  a  couise  which  would  involve 
much  straining  of  the  actual  legal  posi- 
tion, I  should  not  have  been  prepared  to 
interfere  in  view  of  the  fact  that  there  was 
obvious  contumacy  and  direct  disobedi- 
ence of  the  order  of  the  District  Judge  for 


the  production  of  the  minor.  It  may  of 
course  be  that  the  District  Judge  may  still 
be  prepared  to  consider  any*  objections 
which  may  be  urged  to  the  handing  over 
of  the  castody  of  the  minor  pendente  lite  to 
her  father  (respDndent).  That  is  a  matter 
v\ithin  his  discretion,  but  so  far  as  the 
present  appeal  is  concerned  it  seems  to  me 
that  it  is  bound  to  fail  and  it  is  dismissed 
accordingly.  Appellant  must  bear  respond- 
ent's costs.  Pleader's  fees  Rs.  20. 

N.  ii.  Appeal  dismissed. 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECRKH  No.  900 

OF  1923. 

May  21),  1925. 

Present: — Justice  Sir  Hwarfc  Greaves,  KT., 

and  Mr.  Justice  Mukerji. 

THE  FORT  CANNING  AND  LAND 

IMPROVEMENT  COMPANY,  LIMITED - 

PLAINTIFFS— APPELLANT 

versus 

HEIRS  OF  I.ATK  BAHIR  MOLLA  AND 
oTHiiiis  —DEFENDANTS  -RESPONDENTS. 

Benrjal  Tenancy  Act  (VIII  of  188 >),  s.^tSchtIIJt 
Art  J  lb)— Limitation  Act  (IX  of  W0ti\  s  7$ -Pro* 
c?e,din\js  under  s  ^J,  nature  of  •  "Agreement"  in  s  !+Q 
(7),  meaninj  of- Suit  to  recover  icnt  accruing  due 
during  pendency  of  proceedings— Limitation 

Proceedings  under  s  46  of  the  Bengal  Tenancy  Act 
are  proceedings  not  merely  for  ejectment,  but  to  have 
a  fair  and  equitable  rent  assessed  by  the  Court.  If 
the  tenant  refuses  to  accept  the  agreement  filed  under 
the  provisions  of  the  section,  it  is  then  that  a  suit 
for  ejectment  under  the  section  can  be  commenced* 
[p.  38,  col  2.] 

The  word  "agreement'1  in  sub-s.  (1)  of  s.  46  of  the 
Bengal  Tenancy  Act  refers  not  to  the  agreement 
mentioned  in  the  previous  sub-sections  but  to  the 
agreement  an  ived  at  between  the  landlord  and  the 
tenant  when  the  Court  has  fixed  the  fair  and  equitable 
rent  and  the  tenant  has  elected  to  pay  that  rent  and 
not  to  be  ejected  from  the  holding  (p.  39,  col  L] 

The  rent  accruing  due  during  the  pendency  of 
proceedings  under  s.  46  of  the  .Bengal  Tenancy  Act 
is  not  suspended  by  virtue  of  the  proceedings,  and  a 
suit  after  the  termination  of  such  proceedings  to 
recove"  such  rent  is  governed  by  Art  2  (b)  of  fcJch.  Ill 
to  the  Bengal  Tenancy  Act  and  the  period  of  limita- 
tion provided  in  that  Article  is  not  extended  by  the 
operation  of  s,  14  of  the  Limitation  Act.  [p.  39,  col 
2] 

Appeal  against  a  decree  of  the  District 
Judge,  24-ParffaniiH.x  dated  the27th  Novem- 
ber 1922  affirming  that  of  the  Subordinate 
Judge,  Third  Court  of  that  District,  dated 
the  2(5 th  January  1921. 

Mr.  Rom  Chandra  Mazumdar,  Babus 
Khetra  Mohan  Chore  and  Rama  Prosad 
Mvklierjee,  for  the  Appellants. 

Babu  Sisir  Kumar  Ghosal,  for  the  Re- 
spondents, 


3-4  PORT  CANNING  AKD  LAND  IMPROVEMENT  00.  V.  BBIRS  OP  BAH1R  MOLLA,     [92  1.  0.  1926j 


JUDGMENT. 

Greaves,  J. — This  is  an  appeal  by  the 
plaintiffs  ngainst  a  decision  of  the  learned 
District  Jud^e  of  24-Pargannas,  affirming  a 
decision  of  the  Subordinate  Judge  of  the 
Third  Court  of  Alipur.  The  suit  out  of 
which  this  appeal  arises  was  brought  by  the 
Port  Canning  and  Land  Improvement  Com- 
pany, Ltd.,  as  landlords  to  recover  from  the 
defendants  who  were  non-occupancy  raiyats 
rent  for  a  period  of  seven  years  from  1320  to 
1326. 

There  is  no  dispute  with  regard  to  the 
years  1323  to  1326  inclusive.  But  the  dis- 
pute between  the  parties  is  as  to  whether 
or  not  the  rent  for  the  years  1320,  1321  and 
1322  is  barred  by  limitation.  The  appellants 
contend  that  their  claim  for  these  three 
years  is  not  barred  and  they  say  that  this 
is  so  because  during  these  years  they  were 
prosecuting  a  claim  under  the  provisions  of 
s.  46  of  the  Bengal  Tenancy  Act.  These 
proceedings  were  commenced  on  the  28th 
of  March  1913,  Now,  the  suit  under  s.  46 
was  dismissed  by  the  first  Court,  and  by 
the  lower  Appellate  Court.  But  on  appeal 
to  this  Court  the  claim  for  enhancement  was 
allowed  on  the  24th  of  June  1919,  this  Court 
holding  in  second  appeal  that  the  appel- 
ants  were  entitled  to  have  a  fair  and  equit- 
able rent  fixed  by  the  Court.  The  matter 
was  sent  back  to  the  first  Court  for  the 
fixing  of  a  fair  and  equitable  rent  and 
when  this  was  fixed  there  was  an  appeal 
against  the  first  Court's  decision  arid  the 
fair  and  the  equitable  rent  was  not  finally 
fixed  until  some  time  in  the  year  1923.  The 
present  suit  was  commenced  on  the  14th 
April  1920,  rent  being  claimed  at  the  old 
rate  as,  for  the  reasons  which  I  have  stated, 
the  fair  and  equitable  rent  directed  to  be 
fixed  by  this  Court  on  ithe  24th  June  19  j  9 
had  not  at  that  time  been  determined.  But 
the  appellants  say  that  it  was  necessary  for 
them  to  commence  their  suit  claiming  rent 
at  the  old  rate,  as  they  did,  because  if  they 
had  left  the  matter  to  run  any  further,  in  their 
view  the  land  was  not  sufficient  in  value 
to  realize  the  decree  for  rent  which  they 
ultimately  would  obtain.  It  thus  appears 
that  the  appellants  support  their  claim  for 
the  rent  for  the  three  years  1320,  1321  and 
1322  on  the  ground  that,  they  say,  their 
claim  for  the  rent  must  be  deemed  to  have 
been  in  suspense  from  March  1913  until 
June  1919  when  the  s.  46  case  was  in  pro- 
gress and  they  say  they  could  not  really 
brought  their  suit  during  these  years 


as  rent  was  not  fixed  and  finally  determined. 

The  defendants  on  the  other  hand  con- 
tend that  by  virtue  of  the  provisions  of 
Art  2  (fe)  of  the  Third  Schedule  to  the 
Bengal  Tenancy  Act  the  rent  for  these 
three  years  is  not  now  recoverable. 

Article  2  (b)  provides  that  the  period 
of  limitation  for  the  recovery  of  an  arrear 
of  rent  in  other  "cases  not  provided  by  the 
previous  sub-section  is  three  years  from  the 
last  day  of  the  agricultural  year  in  which 
the  arrear  fell  dive.  The  respondents  fur- 
ther contend  that  proceedings  under  s,  46 
are  merely  proceedings  for  ejectment  and  it 
has  been  held  in  various  cases  of  this 
Court  that  during  the  pendency  of  a  suit  for 
ejectment  the  claim  for  rent  is  not  in  abey- 
ance by  reason  of  the  suit.  Now,  in  my 
view  it  is  not  right  to  say  that  the  pro- 
ceedings under  s.  46  are  merely  proceed- 
ings for  ejectment  for  I  think  they  are 
proceedings  not  merely  for  ejectment  but  to 
have  a  fair  and  equitable  rent  assessed  by 
the  Court.  If  the  tenant  has  refused  to 
accept  the  agreement  filed  under  the  pro- 
visions of  s.  46  it  is  then  alone  that  a  suit 
for  ejectment  under  that  section  can  be 
commenced.  There  is  nothing,  therefore,  I 
think,  in  this  point. 

But  the  real  difficulty  appears  to  be 
whether  there  are  any  provisions  of  the 
Limitation  Act  which  provide  for  the 
suspension  of  the  rent  during  the  pendency 
of  the  s.  46  proceedings  unless  there  is  to 
be  found  some  such  provision  in  the 
Limitaiion  Act  then  the  provisions  of 
Art.  2  (6)  of  Sch.  Ill  of  the  Bengal  Tenancy 
Act  must  operate.  Now,  it  seems  to  me 
that  the  only  section  of  the  Limitation 
Act  which  could  be  applicable  is  s.  14 
of  that  Act  which  pr-ovides  that  in  comput- 
ing the  period  of  limitation  prescribed  for 
any  suit  the  time  during  which  the  plaint- 
iff has  been  prosecuting  with  due  diligence 
another  civil  proceedings  whether  in  a 
Court  of  first  instance  or  in  a  Court  of 
Appeal  against  the  defendant,  shall  be 
excluded  where  the  proceeding  is  founded 
upon  the  same  cause  of  action  and  is 
prosecuted  in  good  faith  in  a  Court  which 
from  defectof  jurisdiction  or  other  cause  of  a 
like  nature  is  unable  to  entertain  it.  Now,  the 
real  question,  therefore,  is  whether  the  pro- 
ceedings under  s.  46  of  the  Bengal  Tenancy 
Act  can  be  treated  as  proceedings  founded 
upon  the  same  cause  of  action  as  the  claim 
in  this  suit.  This  really  depends,  I  think, 
upon  the  cpnstructipn  to  be  put  on  the 


[92  I.  0.  1926]     PORT  CANNIN0  AND  LAND  IMPROVEMENT  00.  V.  HEIRS  OP  BAHIB  MOLLA. 

word  "agreement"  in  sub-s.  (7)  of  s.  46  of 
the  Bengal  Tenancy  Act  Section  46,  sub  s.  (1) 
provides  that  no  suit  for  ejectment  shall 
be  instituted-  against  a  non-occupancy 
raiyat  unless  the  landlord  has  tendered 
an  agreement  to  pay  an  enhanced  rent 
and  the  tenant  within  three  months  be- 
fore the  institution  of  the  suit  has  refused 
to  execute  it.  8ub-s.  (2)  provides  that  a 
landlord  tendering  an  agreement  may  file 
it  in  the  office  of  the  Court  for  service  on 
the  raiyat  and  that  it  shall  be  served 
forthwith  and  that  such  service  shall  be 
deemed  to  be  a  tender.  The  "agreement" 
referred  to  in  sub-ss.  (1)  and  (2)  of  course 
is  not  strictly  an  agreement  as  has 
been  pointed  out  by  this  Court  in  the 
case  of  the  Pert  Canning  and  La?id 
Improvement  Company,  Ltd.  v.  Nay  an 
Chandra  Paramanik  (1).  But  it  really  is 
an  offer  made  to  the  tenant  which  the 
tenant  can  refuse  or  reject  as  he  likes. 
Then  sub-s.  (3)  provides  that  if  a  raiyat  on 
whom  an  agreement  has  been  served  executes 
it  and  within  one  month  from  the  date  of 
the  service  files  it  in  the  office  from  which 
it  issued  it  shall  take  effect  from  the  com- 
mencement of  the  j  :.r:i-  •,l;i.:n;  year  next 
follow  in  IT.  Sub-section  (4;  refers  to  the  same 
agreement  and  piovides  for  notice  to  the 
landlord  in  the  event  of  the  agreement  hav- 
ing been  executed  by  the  raiyat.  Sub-section 
(5)  again  refers  to  the  same  agreement  and 
provides  that  if  the  raiyat  does  not  execute 
and  file  the  agreement  under  sub-s.  (3)  the 
tenant  shall  be  deemed  to  have  refused  to 
execute  it.  Sub-section  (6)  again  refers  to  the 
same  agreement  and  provides  that  if  the 
raiyat  refuses  to  execute  the  agreement  the 
Court  has  to  determine  a  fair  and  equit- 
able rent  for  the  holding.  Then  we  come 
to  sub-s.  (7)  which  provides  that  if  the  raiyat 
agrees  to  pay  the  rent  determined  by  the 
Court  under  sub-s  (6)  he  is  to  be  entitled  to 
remain  in  occupation  of  this  holding  at 
the  rent  fixed  by  the  Court  for  a  term  of  five 
years  from  the  date  of  the  agreement. 
Does  the  word  "agreement"  in  sub-s.  (7)  re- 
fer to  the  same  agreement  which  is  men- 
tioned in  the  firat  six  sub-sections,  or  is  it 
something  else?  It  is  suggested  that  the 
agreement  mentioned  in  sub-s.  (7)  is  the 


agreement  arrived  at  between  the  parties 
when  Court  has  fixed  a  fair  and  equitable 
rent  and  the  raiyat  has  agreed  to  pay  the 
same.  The  conclusion  that  I  have  come  to 
(1)  45  Ind.  Cas.  234;  22  C.  W.  N.  558;  28  C.  L.  J. 

ST. 


is  this  that  upon  a  true  construction  of  sub- 
s.  (7)  that  isthe  meaning  of  the  word  ^agree- 
ment" in  that  section ;  and  I  have  arrived 
at  this  conclusion  for  two  reasons.  First 
of  all,  because  it  seems  very  strange  that 
if  the  agreement  referred  to  in  sub-s.  (3)  is 
the  same  agreement  as  is  referred  to  in 
sub.  s.  (7)  the  agreement  in  one  case  is  to 
take  effect  from  the  commencement  of  the 
agricultural  year  next  following  and  in 
the  other  case  from  the  date  of  the  agree- 
ment itself.  It  is  certainly  somewhat  curi- 
ous that  there  should  be  this  difference  in 
time  from  which  the  agreement  is  to  take 
effect  if  the  agreement  referred  to  in  sub- 
s.  (7)  is  the  same  agreement  as  is  mentioned 
in  sub  s.  3.  The  second  ground  is  this — sub- 
section (7)  provides  that  if  a  raiyat  agrees  to 
pay  the  enhanced  rent  fixed  by  the  Court 
he  is  entitled  to  remain  in  occupation  for  a 
term  of  five  years  from  the  date  of  the  agree- 
ment. If  the  agreement  there  is  to  be 
construed  as  the  agreement  filed  by  the 
landlord  under  the  provisions  of  sub-s.  (2) 
one  might  arrive  at  this  extraordinary  re- 
sult— that  a  tenant  would  get  no  period  of 
term  at  all  if  the  proceedings  under  s.  46 
had  been  sufficiently  protracted.  In  any 
case  it  seems  to  me  that  he  would  never  get 
the  full  term  of  five  years  mentioned  in  the 
sub  section  because  in  this  reading  of  the 
''agreement"  the  time  occupied  in  s.  46  pro- 
ceedings would  have  to  be  deducted  from 
the  period  of  five  years  mentioned  in  sub-s. 
(7).  For  these  reasons  I  think  upon  the  true 
construction  of  sub  s.  (7)  the  word  "agree- 
ment" therein  is  not  the  agreement  men- 
tioned in  the  previous  sub-sections  but  the 
agreement  arrived  at  between  the  landlord 
and  the  tenant  when  the  Court  has  fixed 
the  fair  and  equitable  rent  and  the  tenant 
has  elected  to  pay  that  rent^and  not  to  be 
ejected  from  the  holding. 

In  this  view,  therefore,  in  my  opinion  the 
limitation  is  not  saved  by  virtue  of  the 
provisions  of  s.  14  of  the  Limitation  Act,  as 
it  cannot  be  said  that  s.  46  proceedings  are 
founded  upon  the  same  cause  of  action  as 
the  proceedings  in  the  present  suit.  1  do 
not  see  any  other  section  of  the  Limitation 
Act  under  which  the  limitation  can  be  saved. 

We  have  been  lef erred  to  various  cases. 
The  learned  Judge  in  the  Court  below-  has 
relied  on  the  case  of  Watson  &  Co.  v.  Dho- 
nendra  Chandra  Mukerji  (2).  But  1  do  not 
think  that  that  case  is  really  decisive  of  tho 
question  that  arises  in  this  suit.  A  reference 

(2)  3  0.  6;  2  lad.  Jur.  209;  1  Ind.  Deo.  (N.  s.)  596. 


40 


PANDU&ANG  G6VIND  FATE  V.  MA1FUZBHAI. 


[92  I.  0. 


to  the  judgment  at  page  12*  makes  it  clear 
that  the  reason  of  that  decision  was  that 
the  claim  in  that  suit  was  barred  by  limi- 
tation on  the  ground  that  according  to  the 
decision  of  the  Court  the  defendants  still 
continued  to  be  tenants  of  the  zemindar 
tinder  their   patni  lease  even  though    the 
zemindar  had   denied   the   existence  of  this 
lease.    Therefore  it  could  not  be  contended 
that  the  claim   for  rent  was  in    suspense 
during  the  pendency  of  the  litigation  with 
regard  to  the  lease.    The  case  that  seems 
more  nearly  applicable  to  the  facts  of  the 
present  case  is  the  decision  in  Ham  Chvnder 
Choudhury  v.  Kali  Prosan'no  Bhaduri   (3). 
Then  there  had  been  a  suit  for    enhance- 
ment of  rent  and   the  Judicial  Committee 
held   that  the  fact    that  a  suit  for  enhance- 
ment of  rent  had  been  brought  by    the 
plaintiff  within  the  period  covered  by  the 
rent  suit  and  in  the  enhancement  suit  the 
plaintiff  had  claimed  enhanced  rent  for  the 
years  covered  by  the  rent    suit  stayed   the 
operation  of  the  Law  of  Limitation.    Their 
Lordships  say  at  page  lit  that  the  appel- 
lants claimed  the  arrears  of   1298  in  that 
enhancement  proceedings    but    this  claim 
was  then  disallowed  as  premature,  that  they 
are  not  now  entitled  to  the  benefit  of  the 
decree  for  enhancement  and  to  recover  the 
arrears  of  the  enhanced  rate.    It,  therefore, 
appears  that  in   that  case  the  claim   in  the 
rent  suit  was  expressly  and  exactly  covered 
by  the  claim    in    the    enhancement    suit 
which  for  the  reasons!  have  indicated   is 
not  the  case  here. 

One  cannot  help  sympathising  with  the 
position  of  the  landlord  in  the  present  case. 
But  in  the  circumstances  it  is  cleaily  im- 
possible for  them  to  claim  rent  at  the  old 
rate  during  the  pendency  of  the  enhance- 
ment proceeding.  The  result  may,  therefore, 
be  that  in  this  state  of  circumstances  the 
landlord  cannot  recover  the  full  benefit  of 
the  decree  for  enhancement  which  he  ob- 
tained in  proceedings  under  s.  46  of  the 
Bengal  Tenancy  Act  But  that  is  a  ques- 
tion for  the  Legislature  and  not  for  us.  We 
can  administer  the  law  as  we  find  them 
and  as  we  understand  them. 

In  the  result  the  appeal  fails  arid  is  dis- 
missed with  costs 

Mukerjl,  J.-- 1  agree. 


Z.  K. 


Appeal  dismissed. 


(3)  8  0    W.  N.  I;  30  L  A.   177;  30  C    10,3.?;  8  Kar 

P.  C.  J  529  (P  G  ).    ' 

*Pace  oH  r.  -  I  Ed  ]  ~ 

tPageof  SaW.N.— [Ed.] 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  BBVISION  No.  379  OF  1924. 

July  13,  1925. 

Present;—  Mr.  Find  lay,  Officiating  J.  C. 

PANDURANG  GOVIND  FATE— 

DECREE  HOLDER—APPLICANT 

versus 
MAIFUZBHAI—  OBJECTOR—  -Notf-  APPLICANT. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  115,  0. 
XXI,  r  58—  Erroneous  view  of  law—  Objection  pro- 
ceedings, order  in—  Revision. 

If  a  Court,  upon  nn  erroneous  view  of  the  pcope  of 
a  section  of  the  C.  P.  C  ,  applies  it  to  a  case  to  which 
it  has  no  application,  the  Court  acts  without  jurisdic- 
tion and  the  High  Court  would  inteifere  with  its 
decision  ii\  ie,visioii.  [p.  42,  col  1  "| 

Shiva  Nathajiv  Jorna  Kashinatk,  1  B.  311,  7  Jnd 
Jur  656,  4  Ind.  Dec.  (N.  s  )  229,  followed 

The  mere  fact  that  the  unsuccessful  party  in  objec- 
tion proceedings  under  O.  XXI,  r  58  of  the  0  P.  C. 
has  to  file  a  separate  suit  under  r.  63  of  the  Order  and 
the  onus  of  pi  oof  will  be  on  him,  does  not  afford 
sufficient  giound  as  to  why  the  HJi^Ji  Couit  should 
revise  the  ordei  in  those  proceedings  fp.  42,  col  2.] 

Application  for  revision  against  an  order 
of  the  Second  Class  Subordinate  Judge, 
Nagpur,  dated  the  17th  October  1924,  in 
Execution  Case  No.  119  of  1922. 

Mr.  M.  R.  Bobde,  for  the  Applicant. 

Mr.  A.  V.  Wazalwar,  for  the  Non-  Appli- 
cant. 

ORDER.—  The  applicant  (decree-  holder) 
Pandurang  Govind  Fate  has  applied  in 
revision  against  an  order  in  execution 
of  the  Subordinate  Judge,  Second  Class, 
Nagpur,  under  which  certain  moveable 
property,  which  had  been  attached,  was 
released  on  an  objection  filed  under  0.  XXI, 
r.  58,  (\  P.  CM  by  -the  non-applicant  Mai- 
fuzbhai.  The  latter  filed  an  objection  to 
the  attachment  on  the  ground  that  the 
property  in  question  was  already  in  his 
possession  in  the  capacity  of  a  supratdar 
under  a  decree  passed  in  Civil  Suit 
No.  27  of  1922,  in  which  the  decree-holder 
was  also  the  same  as  the  present  applicant. 
The  grounds  of  the  application  are  firstly, 
that  the  objector,  on  his  own  allegations, 
had  no  locus  standi  under  0.  XXI,  r.  58,  to 
maintain  the  objection,  and  that  the  lower 
Court  acted  illegally  and  without  jurisdic- 
tion in  having  released  the  property  from 
attachment  It  is  secondly  urged  t'hat,  in 
any  event,  the  lower  Court  failed  to  take 
notice  of  the  fact  that  the  present  deciee- 
holder  pleaded  that  the  property  attached 
in  the  present  proceedings  was  not  the 
same  as  that  attached  in  Suit  No.  27  of 
1922,  and  that  the  order  releasing  the  pro- 
perty was,  in  any  event,  premature,  as  the 


[921,0. 1926J 

lower  Court  failed  to  give  an  opportunity  to 
the  present  applicant  to  produce  evidence  on 
the  above  question  of  fact. 

On  the  application  for  revision  coming 
on  for  healing,  the  Pleader  for  the  non- 
applicant  raised  an  objection  that  a  remedy 
by  way  of  revision  did  not  lie  in  the  cir- 
cumstances of  the  present  case  and  it  will 
be  accordingly  convenient,  first  of  all,  to 
deal  with  this  point.  On  behalf  of  the 
non-applicant  it  has  been  pointed  out  that 
O.  XXI,  r.  63,  provided  a  special  remedy  by 
way  of  suit  for  any  party  ..j.":  •  :  by  an 
order  passed  under  r.  GO  or  r.  61  of  0.  XXI, 
C.  P.  C,  Reliance  has  been  placed  in  this 
connection  upon  the  decisions,  amongst 
others,  in  Gopal  Das  v.  A  Id  f  Khan  (1),  J.  J. 
Guise  v.  Jaisraj  (2)  and  Shiva  Nathaji  v. 
Joma  Kashwaih  (3).  The  decision  in  J.  J. 
Guise  v.  Jaisraj  (2)  is  directly  to  the  point. 
Burkitt,  J,  remarked  at  page  407*  thereof 
as  follows  • — 

"  The  learned  Counsel  for  the  applicants 
admits  that  they  have  open  to  them  a 
remedy  by  way  of  suit  in  which  they  can 
question  the  decision  of  the  Subordinate 
Judge  so  far  as  it  is  injurious  to  them.  Ad- 
mittedly they  have  not  availed  themselves 
of  that  remedy,  and,  therefore,  adopting 
and  acting  on  the  precedents  above  cited,  I 
think  that  this  Court  should  not  grant  to 
them  the  extraordinary  remedy  by  way  of 
revision  for  which  they  have  applied.  For 
this  reason,  J  think  this  application  should 
be  rejected," 

In  Debi  Das  v.  Ejaz  Ilusain  (4),  Knox, 
J.,  referred  to  J.  J.  Guise,  v.  Jaisra]  (2) 
just  quoted  and  remarked  as  follows: — 

"  What  was  laid  down  in  that  case  was 
that  this  Court  should  not  grant  the  extra- 
ordinary remedy  by  way  of  revision  when  a 
remedy  by  way  of  suit  lies  open.  Ordinari- 
ly, I  am  prepared  to  subscribe  to  that,  but 
in  this  matter  each  case  must  be  judged 
upon  the  circumstances  peculiar  to  it  The 
subject-matter  is  valued  at  Rs.  40.  The 
decree-holder  is  purporting  to  act  under  a 
decree  which  he  obtained  on  17th  Novem- 
ber 1902.  The  application  for  execution, 
which  has  in  noway  been  traversed,  shows 
that  his  path  in  execution  has  been  a  very 
thorny  one.  I  hnve  held  that  the  order 

(1)  11  A.  383;  A.    W,  N,   (1889)   151;   6    Ind,  Dec. 
(N.  s.)  G72. 

(2)  15  A   405;  A.  W.  N  (1803)  172;  7  Ind.  Deo.  (NT.  a ) 
979. 

(3)  7  B.  341,  7  Ind  Jur.  656,  4  Ind,  Dec.  (N.  s)   229. 
"(4)  28  A.  72;  A.  W  N  (1905)  191;  2  A  L  J.  749. 

""•Pageof  15  A,— [Ed.\ 


PANDUflANQ  COVIND  FATE  V.  MAIFUZBHAI. 


41 


complained  of  was  an  order  entirely  without 
jurisdiction,  and,  therefore,  it  appears  to 
me  most  consonant  with  equity  to  place 
the  parties  as  far  as  possible  in  the  posi- 
tion they  occupied  before  the  judgment- 
debtor  moved  the  Court  to  pass  the  order 
which  it  had  no  jurisdiction  to  pass.1' 

Knox,  J.,  thus  in  the  case  in  question 
was  not  prepared  to  lay  down  an  absolute 
rule  that  when  an  express  remedy  by  way 
of  suit  or  otherwise  was  provided  for,  no 
application  for  revision  could,  in  any  event, 
lie,  and  he  held  that  in  such  a  matter  each 
case  must  be  judged  upon  the  circum- 
stances peculiar  to  it, 

The  question  of  the  exercise  of  the  ex- 
traordinary jurisdiction  of  the  High  Court 
under  s.  662  of  the  old  C  P.  C.  was  con- 
sidered most  elaborately  in  Shiva  Nathaji 
v.  Joma  A'rt.s/n'wa/ft  (3)  by  a  Full  Bench 
and  the  f'-ll.^  ii-ir  principle  was,  amongst 
others,  laid  down  at  page  372*  thereof:  — 

"  Where  a  decree  or  order  of  a  Subordi- 
nate Court  is  declared  by  the  law  to  be,  for 
its  o\\n  purposes,  final,  or  conclusive, 
though  in  its  nature  provisional,  as  subject 
to  displacement  by  the  decree  in  another 
more  formal  suit,  the  Court  will  have  re- 
gard to  the  intention  of  the  Legislature 
that  promptness  and  certainty  should,  in 
such  cases,  be  in  some  measure  accepted 
instead  of  juridical  perfection.  It  will  rec- 
tify the  proceedings  cf  the  inferior  Ccurt 
wheie  the  extiinsic  conditions  of  its  legal 
activity  have  plainly  been  infringed;  but 
wheie  the  alleged,  or  apparent,  error  con- 
sists in  a  misappreciation  of  evidence,  or 
misconstruction  of  the  law,  intrinsic  to  the 
inquiry  and  decision,  it  will  respect  the 
intended  finality,  and  will  intervene  per- 
emptorily only  when  it  is  manifest  that, 
by  the  ordinary  and  prescribed  method,  an 
adequate  remedy,  or  the  intended  remedy, 
cannot  be  had." 

On  behalf  of  the  applicant  reliance  has 
been  placed  on  the  remarks  of  Hallifax, 
A  J.  C  ,  in  Kamchandra  Fate  v.  Shridhar 
(5).  The  learned  Additional  Judicial  Com- 
missioner therein  held  that,  even  though 
a  remedy  .by  regular  suit  was  open  to 
the  applicant  in  that  case,  yet  he  was 
prepared  to  interfere  on  the  ground 
that  the  slower  remedy  by  regular  suit 
would  leave  the  applicant  sufferinginjustice 
and  undue  hardship,  and  that  this  ground 


(5)  05  Ind  Gas.  3 
^    I    R    (NJ_H5._ 


331;  18  N.  L.  R.  71  at  p.   72;  (1922 


PAL  SINGH  V.  GANOA  SINGH. 


alone  was  sufficient  to  call  for  the  exercise 
of  the  revisional  powers  of  the  Court  in 
his  favour.  Each  case  of  this  sort  must, 
however,  be  judged  on  its  merits,  and  I  am 
not  prepared  to  admit  that  ttie  present  ap- 
plicant is  likely  to  suffer  exceptional  hard- 
ship or  injustice,  even  though  it  were  to 
be  held  that  the  present  application  by  way 
of  revision  did  not  lie.  It  is  unnecessary, 
therefore,  to  discuss  in  the  present  case  the 
question  as  to  whether  I  should  bo  prepar- 
ed to  accept  fully  the  standard  laid  down 
by  the  learned  Additional  Judicial  Com- 
missioner in  the  case  quoted  in  this  con- 
nection. 

I  turn  next  to  the  principle  enunciat- 
ed in  the  Shiva  Nathaji  v.  Joma  Kashinath 
(3)  quoted  above,  a  decision  which  has  been 
followed  in  many  other  later  cases,  and  is 
quoted,  with  approval,  in  Brajabala  Devi  v. 
Gurudas  Mundle  (6).  It  becomes,  therefore, 
necessary  to  consider  whether  the  lower 
Court  was  correct  or  not  in  holding  that  r. 
58  of  O.  XXI,  0.  P.  C.,  covered  the  case  of 
the  present  objector.  If  a  Court,  upon  an 
erroneous  view  of  the  scope  of  a  section  of 
the  C.  P.  C.,  applies  it  to  a  case  to  which 
it  has  no  application,  such  a  Court  would 
act  without  jurisdiction,  and,  .-•  •  :':  •:  :,he 
principle  laid  down  in  Shi  ;  \  ,  •  ^ ,  v, 
Joma  Kashinath  (3)  quoted  above,  this 
Court  would,  in  the  circumstances,  be  pre- 
pared to  interfere.  Now  the  applicant's 
position  in  this  connection  is  that  the 
objector  as  a  mere  supratdar  had  no  locus 
standi  with  regard  to  the  objection  he  filed 
to  the  attachment.  It  is  suggested  in  this 
connection  that  he  was  in  possession  only 
on  behalf  of  the  judgment-debtor.  Were 
this  so,  the  Court  would  undoubtedly  have 
acted  without  jurisdiction.  I  am,  however, 
not  prepared  to  assent  to  this  proposition. 
The  supratdar  was,  to  all  intents  and  pur- 
poses, in  possession  of  the  property  on 
behalf  of  the  Court  and  practically  held  the 
position  of  a  Receiver.  Therefore,  in  the 
present  case  I  do  not  think  that  any  applica- 
tion for  revision  can  lie,  and  I  fully  accept 
the  above  quoted  principle. 

The  other  grounds  for  interference, 
viz.,  that  the  lower  Court  erred  materially 
in  not  taking  further  evidence  and  investi- 
gating the  question  as  to  whether  the 
property  in  each  attachment  was  the  same, 
do  not  seem  to  me  to  be  such  as  would 
justify  interference  on  the  revisional  side 

(6)  33  0.  487;  3  C.  L.  J.  293. 


[92 1.  0. 1926] 

in  this  Court.  Rightly  or  wrongly,  the 
Judge  of  the  lower  Court,  on  the  evidence 
before  him,  has  held  that  the  property  was 
the  same.  The  mere  fact  that  if  the  applic- 
ant has  to  file  a  separate  suit  under  0.  XXI, 
r.  63,  C.  P.  C.,  in  this  connection  and  that 
the  onus  of  proof  will  be  on  him  in  this 
connection,  seems  to  me  to  afford  no  suffi- 
cient ground  as  to  why  this  Court  should 
exercise  its  revisional  jurisdiction  in  such  a 
matter.  If  such  a  consideration  were  to 
afford  the  guiding  principle  in  the  question 
as  to  whether  an  application  of  this  sort 
lies  under  s.  115,  r.  63  of  0.  XXI,  might  as 
well  not  be  on  the  Statute  book  at  all,  be- 
cause parties  aggrieved  by  an  order  passed 
under  r.  60  or  r.  61  of  O.  XXI  would  very 
naturally  choose  the  cheaper  and  more 
speedy  remedy  of  revision. 

Holding,  as  I  do,  therefore,  that  the 
lower  Court  did  not  act  without  jurisdic- 
tion, I  do  not  think  the  present  application 
for  revision  can  be  entertained  on  the  other 
allegations  made  therein.  The  applicant 
must  seek  his  remedy  by  way  of  separate 
suit  in  the  way  provided  for  in  the  C  P.  C. 
The  application  for  revision  is  accordingly 
dismissed.  The  applicant  must  bear  the 
non-applicant's  costs.  Pleader's  fees  Rs.  15. 

N.  H.  Application  dismissed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  2268  OP  1924. 

March  21,  1925. 

Present:— Mr.  Justice  Abdul  Raoof. 
PAL  SINGH — PLAINTIFF— APPELLANT 

versus 
GANGA  SINGH  AND  ANOTHER— 

— DEFENDANTS — RESPONDENTS. 
Appeal,  second — Mortgage  or  sale— Question  of  fact. 
The  question  whether    a  certain   transaction  is  a 
mortgage  or  a  sale  is  a  question  of  fact  and  cannot 
be  agitated  in  second  appeal. 

Hecond  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Amritsar,  dated  the  13th 
August  1924. 

Bakhshi  Tek  Chand,  for  the  Appellant. 
Lala  Kidar  Nath  Chopra,  for    the     Re- 
spondent. 

JUDGMENT.— This  is  a  second  appeal 
in  a  suit  for  pre-emption.  The  following 
facts  will  disclose  the  nature  of  the  question 
to  be  decided:  — 

Musammat  Ram  Kaur,    widow    oV 


[92 1.  0. 1S26J 

Jawand  Singh,  inherited  some  land  from 
her  husband  as  a  life-tenant.  She  applied 
to  the  Collector  to  sell  49  kanals,  6  marlas 
for  Rs,  2,000,  to  one  Dharam  Chand,  a  non- 
agriculturist,  The  application  was  rejected 
on  the  8th  of  February  1921.  Thereupon  by 
a  deed  dated  the  llth  ol  June  1921,  she 
made  a  mortgage  without  possession  in 
favour  o£  Ganga  Singh  in  respect  of  39 
kanals,  11  marlas  for  Rs.  1,100.  The  follow- 
ing conditions  were  entered  in  the  deed: 

(1)  The  mortgage  was  not  to  be  redeemed 
for  20  years,  and 

(2)  interest  was  to  be  paid  at  Rs.  2    per 
cent,  per  mensem.    On  the  same  date  the 
mortgaged  land  was  leased  to  the  mortgagee 
for  20  years,  the  rent  reserved  being  Rs.  40 
per  annum.    The  land  revenue  Rs.   12-0-9 
was  to  be  paid  out  of  this  yearly  rent. 

The  plaintiff  Pal  Singh,  a  reversioner  of 
Jawand    Singh,  sued    for  pre-emption  on 
the  allegation  that,  though  the  deed  of  the 
llth  of  June  1921,  on  the  face  of  it    pur- 
ported to  be  a  mortgage- deed,  the  transac- 
tion was  really  a  sale  and  that  the  form  of 
the   mortgage    was  adopted    in    order    to 
defeat  the  right  of  pre-emption.    A  declara- 
tion was  also  claimed  by  the   plaintiff  to 
the  effect  that  the  alienation  being  without 
consideration  and  necessity  shall  not  affect 
his  reversionary  lights.    This   latter  relief 
was    refused  and    no    question  as    to    it 
arises  now.    The  claim  for  pre-emption  was 
decreed  by  the  Trial  Court  which  was  of 
opinion  that  the    transaction  was   really  a 
sale     On  appeal  the  learned  District  Judge 
took  a  different  view   on  the  evidence  and 
having  found  that    the  transaction  really 
was  one  of  a  mortgage  and  not  that  of  a 
sale  dismissed  the  claim  of  the  plaintiff. 

This  second  appeal  was  preferred  by  the 
plaintiff  and  has  been  argued  before  me  by 
Mr  Tek  Chand,  his  learned  Counsel.  The 
chief  contention  put  forward  before  me  is 
that  the  conditions  entered  in  the  mortgage 
deed  are  such  and  the  amount  of  the  mort- 
gace  money  would  be  so  much  at  the  end 
of  20  years  that  no  reasonable  person  would 
think  of  redeeming  the  property.  His  con- 
tention is  that,  according  to  the  condition 
relating  to  interest,  the  accumulated  amount 
at  the  end  of  20  years  would  come  to 
Rs  5  280.  Thus  along  with  the  principal 
amount  of  Rs.  1,100  the  total  sum  payable 
by  the  mortgagor  for  the  redemption  of  the 
property  would  come  to  Rs.  MbU.  i&e 
learned  Counsel  further  contends  that  the 
fact  that  a  patta  was  giren  to  the  mortgagee 


PAL  SINGH  V.  OANGA  SINGH,  *3 

for  20  years  clearly  shows  that  it  was  in- 
tended to  place  the   alienee  in  possession 
from  the  very  beginning  as  a  vendee.    The 
total  amount  of  rent  for  20  years  at  the  rate 
of  Rs.  40  per  annum  \\ould  be  Rs.  800.   Out 
of  this  Rs.  240-15-0  would  have    to    be  de- 
ducted on  account  of  revenue  for   20  years. 
Thus  the  net  total  rent  for  20  jears  would 
be  Rs.  559-LO.    If  this  amount  is  deducted 
from     Rs.     6,380     the     balance      left     is 
Rs.  5,820-15-0.  It  is  further  argued  that,  ac- 
cording to  the  evidence  on  the  record,  the 
highest  market  value  of  the   land  at  the 
date  of  the  transaction  was  Rs.  50  a  kanal. 
Thus  the  price  of  39fcarm/s,    11  marlas  or 
putting  it  roughly  as  40  kanals  would  be 
Rs.  50  x  Rs.  40  equal  to  Rs.  2,000.    It  is  con- 
tended by  the  learned   Counsel  that  no  one 
would   think  of  redeeming  the  land  of  the 
value  of  Rs.  2,000  by  paying  Rs.  5,820-15-0. 
The  argument  is  plausible  and  had  it  been 
possible  for  me  to  interfere  with  a  finding 
of  fact  recorded  by  the     lower  Appellate 
Court  I  might  have  agreed  with  the  learned 
Counsel  as  to  the  effect  of  the  evidence  but 
the  learned  District  Judge    has  found   in 
unmistakable  terms   that  the  intention  of 
the  parties  was  to  effect  a  mortgage.    This 
is  purely  a  question  of  fact  and  the  finding 
of  the  learned  District  Judge  is  conclusive 
in    second  appeal.      There    are  numerous 
rulings  to  be  found  reported  in  the  various 
volumes  of  the  Punjab  Record  in  which    it 
is  laid  down  that  the    question  whether  a 
certain  transaction  is  a  mortgage  or  sale  is 
a  question  of  fact,  see  for  instance  Sunder 
Das   v.   Dhanpat  Rai  (1),  Ahmad  Khan   v. 
Alam    Khan    (2)    and    Kapur   Chand    v. 
Chet    Ram  (3).    Moreover,  having    regard 
to  the  fact  that  the  deed  on  the    face  of  it 
is  a  mortgage-deed,    the   mortgagor    can 
redeem  the    mortgage  if  he  likes  and  as 
long  as  there  is  a  right  of  redemption  it  is 
impossible    to    say  that    a  sale  has, taken 
place  and    the   mortgagor   cannot  recover 
possession  of  the  land  on   payment  of  the 
redemption  money.    It  is  not  a  question  of 
the  construction  of  a  document  which  may 
be  treated  as  a  question  of  law.    The   ques- 
tion of    intention    is  purely  a  question  of 
fact,  and  I  am  constrained  to  hold  that  the 
findings  of  the  lower   Appellate  Court  are 


P.  R.  1907;  104  P.  L.  R.  1908,  127  P.  W.  R 
297;  120  P.  L.  R  1916;  115  P.  W 


(i) 

1007. 

(2)  37  Ind.  Cas 
R.  1916. 

(3)  80  Ind.  Cas.  494;  (1924)  A.  I.  R  (L,)  260,  5  L. 
J.  541. 


44 


'TIKARAM  V.  NAIUYAN. 


binding  on  this  Court,,  and    there     is 
room  for  interference  in  second  appeal. 

The  result  is  that  the  appeal  fails  and 
dismissed  with  costs. 

Appeal  dismissed, 


no 


is 


K. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  421  OF  1924. 

September  14,  1925. 

Preserz/;—  Mr.  Pindlay,  Officiating  J.  0. 
TIKARAM— 


versus 
NARAYAN  AMD  ANOTHER  —  RESPONDENTS. 

Cunl  Procedure  Co</e  \Art  V  of  /M,S),  tfr/i  ill, 
para  II-  Decree  transferred  in  Collector  for  ercdtttmi 
—  Collector,  jurisdiction  of  -(1irtl  Coutt,  ponn  /••*  of  — 
Execution,  of  decree  Property  miadescrii'i'd  tn  tratrant 
of  attachment—  Auction-sale,  lalidity  of  -  -Knowledge 
of  parties. 

No  sooner  is  an  order  for  tmnsfrr  of  a  dence  for 
execution  to  the  Collector  mnde  ih»in  ho  is  &eiz<-d  of 
the  cas^  and  not  on  the  date  buck  oider  reaches  him. 
Any  transfer  of  the  attached  property  subsequent  to 
the  date  of  the  order  of  transfer  dining  the  pmdoncy 
of  the  proceedings  before  him  is  void,  [p  43,  ools.  I 

&2i 
During  the    period  the   Collector  lias    jurisdiction 

the  Civil  Court  eeases  to  have  any  power  to  aet  in 
execution  of  the  decree  transferred  [p  45,  rol  1  j 

A  msre  misdescription  in  a  warrant  of  attachment 
of  property  does  not  invalidate  the  auction  fcalo  and 
is  merely  an  irregularity  if  the  parties  knew  what 
had  b?,8ii  attached  and  had  been  actually  sold  [p.  45, 
col.  2J 

Appeal  against  a  decree  of  the  Addi- 
tional District  Judge,  Nagpur,  dated  the 
12th  July  1924,  in  Civil  Appeal  No,  38  of 
1924. 

Mr.  VsV.Kelkar,  for  the  Appellant. 

Mr,  M.  D.  Khandekar,  for  the  Respond- 
ents, 

JUDGMENT.—  The  plaintiff  Narain 
Teli,  eued  the  defendants  Ganpati  and 
Tikaram  inrespect  of  amortgage-deed  dated 
3rd  October  1921  executed  by  Ganpati  for 
Rs.  300  of  which  Rs.  85-8-0  was  due  on  a  pre- 
vious mortgage.  Tikaram  was  joined  in  the 
suit  as  he  was  alleged  to  have  purchased 
the  mortgaged  subject  which  consisted  of  a 
half  share  in  absolute  occupancy  field  No, 
62  in  Mouza  Kesori,  Nagur.  Tikaram's  de- 
fence in  the  first  Courtrested  amongst  other 
grounds  on  the  contention  that  the  mortgage 
was  void  having  been  executed,  while  Col- 
lectors proceedings  were  pending  there- 
am  nt. 

The    Subordinate  Judge    held  that  the 


[92  I.  0.  1926J 

mortgage-deed  in  suit  was  not  void 
under  8ch.  Ill  para.  11  of  the  0.  P.  0.  The 
field  we  are  concerned  with  is  admittedly 
No.  62  but  the  Subordinate  Judge  found 
that  in  the  Schedule  attached  to  the  warrant 
of  attachment  the  number  of  the  field  was 
given  as  No.  63  On  SOfch  September  1921  the 
decree  was  ordered  to  be  transferred  to  the 
Collector  and  before  him  steps  were  taken 
as  regards  field  No.  62  which  was  admittedly 
in  the  judgment-debtor's  possession.  The 
Subordinate  Judge  accordingly  held  that 
there  having  been  no  attachment  of  field 
No.  62,  there  would  a  fortiori  be  no  valid 
sale  thereof.  The  Collector's  proceedings, 
therefore,  being  without  jurisdiction,  could 
not  affect  the  validity  of  the  mortgage-deed 
in  suit  executed  on  3rd  October  11)21  and 
decree  in  favour  of  the  plaintiff  was  grant- 
ed accordingly. 

The  defendant  Tikaram  appealed  against 
this  decision  and  the  Additional  District 
Judge,  Nagpur,  held  that  although  the 
order  of  tiarisfer  to  the  Collector  was 
passed  by  the  Executing  Court  on  SOfch  Sep- 
tember 1921  the  proceedings  did  not  reach 
the  Collector  till  16th  November  1921;  he 
accordingly  held  that  the  Collector  was  not 
seized  of  the  proceedings  on  3rd  October 
11)21.  On  these  and  connected  findings  he 
dismissed  the  appeal. 

The  first  point  for  decision  in  this 
appeal  concerns  the  last  mentioned  finding, 
Reference  has  been  made  in  this  connection 
by  the  Pleader  for  the  appellant  to  the 
phraseology  of  para.  1  of  Sch.  Ill  of  the 
C.  P.  0  ,  viz.,  "Where -the  execution  of  a 
decree  has  been  transferred  to  the  Collector 

under  s.  68, " 

as  well  as  to  the  initial  portion  of   para.   11 
idem. 

It  is  urged  in  view  of  these  provi- 
sions that  the  Collector  must  be  con- 
sidered to  have  been  seized  of  the  case 
as  from  the  date  30th  September  1921  the 
date  on  which  the  order  of  transfer  was  pass- 
ed and  that  in  view  of  this  fact  the  mortgage 
in  suit  was  void  under  para.  11,  Sch,  III  re- 
ferred to  above.  An  exactly  similar  point 
was  considered  by  Halhfax,  A,  J.  C.,  in 
Narayan  v.  Vithu  (Second  Appeal  No.  573 
of  1922,  decided  on  26th" June  192J)  whore 
the  learned  Additional  Judicial  Commis- 
sioner remarked  as  follows  :  — 

''This  view  also  I  am  unable  to  accept.  At 
the  moment  a  Civil  Court  transfers  u  decree 
to  another  Court,  whether  it  be  another 


TIKARAM  V.  NARAYAN, 


[92  I.  0.  1926] 

Civil  Court  or  the  Collector,  it  ceases  to 
have  any  power  to  act  in  execution  of  that 
decree.  Bat  it  cannot  possibly  be  said  that 
there  is  an  interval,  varying  with  the 
length  of  time  the  papers  happen  to  take 
to  reach  the  other  Court,  during  which  no 
Court  has  any  jurisdiction.  The  possession 
of  rights  or  powers  does  not  depend  upon 
knowledge  of  them.  The  Collector's  posi- 
tion in  this  matter  is  exactly  analogous  to 
that  of  an  heir  to  an  estate,  who  has  full 
power  to  deal  with  it  from  the  moment  of 
the  death  of  the  person  he  succeeds  though 
he  may  not  hear  of  it  for  months,  and  any 
alienation  of  his  property  by  another  dur- 
ing those  months  is  no  less  invalid  because 
he  was  not  aware  of  his  rights." 

I  find  myself  in  complete  urn-,  :>  *  h1 
with  this  view.  Clearly  during  the  period 
from  30th  September  1921  to  16th  Novem- 
ber 1921  either  the  Executing  Court  or  the 
Collector  had  jurisdiction  and  the  question 
for  decision  is  which  was  seized  of  the  case. 
I  am  aware  of  the  decision  of  West,  J  ,  in 
Mahadaji  V.  Karandikar  v.  Hari  D.  Chikne 
(1),  but  for  my  own  part  I  entertain  no  doubt 
that  during  the  period  the  Collector  has 
jurisdiction,  the  jurisdiction  of  the  Civil 
Court  is  to  alUpractical  purposes  excluded, 
c/.,  Madho  Prasad  v.  Hansa  Kuar(*).  The 
question  before  me,  however,  is  as  to  from 
what  date  the  Collector  had  jurisdiction  for 
the  purpose  of  the  applicability  of  para,  11 
of  the  said  Schedule,  It  cannot  be  denied 
that,  if  there  had  been  no  ministerial  or 
office  delay  in  forwarding  the  case  to  the 
Collector  and  if  Form  C  had  been  sent  to 
him  on  30th  September  1921  or  the  fol- 
lowing day,  he  would  have  had  juris- 
diction forthwith  and  para  11  would 
have  applied,  Now,  having  regard  to  the 
obvious  principle  underlying  the  said 
provision,  I  am  satisfied  that  the  desir- 
ability provided  for  therein  must  have  been 
intended  by  the  Legislature  to  have  had 
effect  from  the  date  the  order  of  transfer  to 
the  Collector  was  passed.  From  that  date 
the  Executing  Court  may  be  ^regarded  as 
ceasing  to  exercise  jurisdiction  for  all 
practical  purpose.  The  initial  language  of 
para.  11  is  significant  in  this  connection,  It 

is— 
u  So  long  as  the  Collector  can  exercise 

jurisdiction." 
Potentially  in  the  present  case  the  Collec- 


45 


tor  could  exercise  jurisdiction  from  30th 
{September  1921  although  actually  he  did 
not  do  so  till  16th  November  1921.  Two 
decisions  of  this  Court  have  been  quoted 
on  behalf  of  respondent  viz,,  Sonba  v. 
Ganesha  (3)  and  Harlal  v.  Narayan  (4). 
The  first  decision  does  not  deal  with  the 
exact  point  involved  in  this  case  and  in 
the  second  one  there  was  a  mere  remark 
by  Hallifax,  A.  J.  C.,  that  the  original 
proceedings  "began  on  2nd  June  1917 
when  the  Form  C  was  received  by  the  Col- 
lector.1' The  same  learned  Additional 
Judicial  Commissioner  in  the  unreported 
case  quoted  above  has  given  a  more  con* 
sidered  finding  on  the  point  involved,  a 
finding  with  which  I  agree  and  the  remark 
relied  on  by  respondent  in  the  18  N.  L.  R. 
case  quoted  was  a  mere  obiter  which  I  do 
not  regard  as  necessarily  conclusive. 

I  am,  therefore,  of  opinion  that  the 
present  mortgage  as  having  been  executed 
during  the  pendency  of  the  Collector's 
proceedings  was  void  provided  that  the 
property  sold  therein  was  legally  sold. 

On  the  remaining  point  for  decision 
as  to  whether  it  was  Oanpati's  field  which 
was  attached,  I  think  the  appeal  must  go 
back  to  the  lower  Appellate  Court  for  a 
fresh  decision  on  the  merits.  The  real 
point  for  decision  in  this  connection  has 
been  missed  entirely  by  the  Additional  Dis- 
trict Judge.  That  point  is — was  it  appli- 
cant's field  which  was  actually  attached  or 
not?  There  may  have  been  only  a  mis* 
description  of  it  in  the  warrant.  A  mere 
misdescription  would  not  necessarily  in- 
validate the  sale  and  would  amount  to  a  mere 
irregularity  if  the  parties  concerned  knew 
what  had  been  attached  and  had  been  ac- 
tually sold. 

The  judgment  and  decree  appealed 
against  are  accordingly  reversed  and  the 
appeal  will  #o  back  to  the  lower  Court  for  a 
fresh  decision  in  accordance  with  the  above 
remavks.  Appellant  will  receive  a  certi- 
ficate for  refund  of  Court- fees.  Other  costs 
of  this  appeal  will  follow  the  event. 

N.  H.  Decree  reversed. 

(3)  17  Ind.  Gas.  887,  8  N.  L.  R.  182. 

(4)  64  Ind.  Cas,  420;  18  N.  L.  R.  152;  (1922)  A.  I 
R.  IN.)  267.  . 


(1)  713,  332;  4  Ind.  Dae  fr.s)  224, 

(2)  5  A.  314;  A.  W,  N.  (1833;  0,),  3  Ind    Dec    (N,  s. 


LAHORE  HIGH  COURT. 

CIVIL  REVISION  PKTJTION  No.  352  OF  1924, 

March  26, 1925, 

Present :---Mr.  Justice  Martineau. 

Muvammat  BARKAT  BIBI— 

DEFENDANT — PETITIONER 

versus 
ABDUL  AZIZ— PLAINTIFF,  ABDUL 

KARIM   AND  ANOTHER — DEFENDANTS- 
RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  115— 
Revision,  ground  -for- -Error  of  law — Burden  of 
proof,  wrong  decision  on  question  of. 

The  giving  of  an  erroneous  decision  on  a  point  of 
law  is  not  an  irregularity  or  an  illegality  in  the 
exercise  of  jurisdiction  and  does  not  justify  interfer- 
ence in  revision. 

A  decision  on  a  question  of  onus  cannot  be  attacked 
in  revision. 

Petition  for  revision  against  an  order  of 
the  Senior  Subordinate  Judge,  Gujranwala, 
dated  the  25th  January  1924. 

Maulvi  Ghulam  Mahy-ud-Din,  for  the  Peti- 
tioner. 

Shaikh  Niaz  Muhammad,  for  the  Re- 
spondents. 

JUDGMENT.— The  plaintiff  sues  for 
money  due  on  a  hundi  drawn  by  the  de- 
fendant in  his  favour.  He  had  transferred 
the  hundi  to  a  certain  firm,  which,  on  failing 
to  recover  the  money,  through  the  Bank, 
returnrd  the  hundi  to  the  plaintiff,  with 
the  Bank's  note  as  to  non-payment. 

The  Trial  Court  placed  the  onus  of  prov- 
ing consideration  for  the  hundi  on  the 
plaintiff,  and  found  that  he  had  not  dis- 
charged it,  and  also  held  that  the  plaintiff 
could  not  su6  on  the  hundi  without  its 
being  re-endorsed  to  him  by  the  firm  to 
which  he  had  transferred  it.  The  Senior 
Subordinate  Judge,  to  whom  the  plaintiff 
appealed,  held  that  the  onus  should  have 
been  on  the  defendant  to  prove  that  there 
was  no  consideration  for  the  hundi,  and  also 
held  that  the  plaintiff  could  maintain  the 
suit  on  the  hundi.  He,  therefore,  remanded 
the  case  for  re-trial.  The  defendant  has 
applied  to  this  Court  for  revision. 

There  is,  in  my  opinion,  no  ground  for 
interference  in  revision,  even  supposing 
that  the  lower  Appellate  Court's  decisions 
on  the  tWo  points  above  mentioned  were 
wrong,  as  the  giving  of  an  erroneous  deci- 
sion on  a  point  of  law  is  not  an  irregularity  or 
illegality.  Karimullah  v.  Krimon  (1)  is 
moreover  an  authority  for  the  view  that  a 
decision  on  a  question  of  onus  cannot  be 

(1)  15  lad.  Cas.  839;  102  P.  R,  1912;  207  P,  L,  R,  1912; 
213  P,  W.  R,  1912. 


SHUNKAB  v.  MAHADBI. 

attacked  in  revision, 
tion  with  costs. 


[92  I.  0. 1926] 
I  dismiss  the  applica- 


z.  K. 


Application  dismissed. 


OUDH  CHIEF  COURT. 

CIVIL  APPLICATION  No.  159  OF  1925. 

November  25,  1925. 
Present: — Mr.  Justice  Eaza. 
SHUNKAR— PLAINTIFF— APPELLANT 

versus 

Musammat  MAHADEI— DEFENDANT — 
OPPOSITE  PARTY. 

Mortgage — Mortgage  of  tenancy  rights,  whether  void 
ab  initio. 

A  mortgage  of  his  tenancy  lands  by  a  tenant-at- 
will  is  not  void  ab  initio. 

Ram  Autar  v.  Ram  Asre,  66  Ind.  Cas.  680;  8  0.  L. 
J.  414  and  Bhairon  v.  Balak,  68  Ind,  Cas.  558;  9  0  L. 
J.  331;  4  U.  P.  L.  R  (0.)  88;  (1922)  A.  L  R.  (0.)  287, 
referred  to. 

Application  for  revision,  under  s.  25,  Act 
IX  of  1887,  against  a  decree  of  the  Munsif, 
Qaiserganj,  as   Judge  Small   Cause   Court, 
Qaiserganj  at  Bahraich,  dated  the  30th  May  ' 
1925. 

Mr.  Moti  Lai  Saksena,  for  the  Appellant. 

Mr.  Ram  Shankar,  for  the  Opposite  Party. 

JUDGMENT.— The  defendant's  hus- 
and  Bhola  (since  deceased)  executed  the 
deed  in  question  in  favour  of  the  plaintiff 
for  Es.  73  011  the  10th  June  1917.  The 
deed  in  suit  is  alleged  to  be  a  mortgage- 
deed  by  which  10  bighas  10  biswas 
tenancy  land  was  transferred  to  plaintiff  to 
secure  payment  of  Es.  73.  The  bond  pro- 
vided that  the  money  borrowed  would  be 
re -paid  on  Baisakh  Sudi  Puranmashi  1327 
Fasli  and  that  should  the  money  be  not 
re-paid  till  the  end  of  1327  Fasli  the  credit- 
or would  be  entitled  to  continue  in  posses- 
sion. The  deed  in  suit  was  described  as  a 
mortgage-deed.  It  appears1  that  the  plaint- 
iff remained  in  possession  of  the  tenancy 
during  the  lifetime  of  Bholav  He  was,  how- 
ever, dispossessed  by  the  defendant  from 
the  land  after  the  death  of-  Bhola  in  July 
1922.  He  brought  the  present  suit  on 
the  20th  March  1925  to  recover  Es.  73  with 
interest,  total  Rs.  100.  He  prayed  for  a 
simple  money-decree  against  the  defendant. 

The  claim  was  resisted  by  the  defend- 
ant on  various  grounds. 

The  learned  Munsif  framed  several  issues 
and  rejected  the  claim  holding  that  the 


[92  I.  0. 1926] 

mortgage  in  suit  being  amortgageof  tenancy 
land  was  void  ab  initio. 

The  plaintiff  applied  in  revision  under 
s.  25  of  the  Small  Cause  Courts  Act. 

The  applicant's  learned  Counsel  has  re- 
ferred to  the  rulings  in  Ram  Autar  v.  Ram 
Asre  (1)  and  Bhairon  v.  Balak  (2).  The 
ruling  in  Bhairon  y.  Balak  (2)  is  an  authori- 
ty for  the  proposition  that  a  mortgage  by 
a  tenant-at-will  is  not  void  ab  initio. 

The  deed  in  suit  purports  to  be  a  mort- 
gage-deed but  it  was  not  registered  as  re- 
quired by  law  (see  s.  59  of  Act  IV  of  1882). 
The  plaintiff  himself  has  prayed  fora  simple 
money-decree  nn  the  basis  of  the  deed.  It 
is  to  be  determined  if  he  can  sue  for  the 
money  on  the  basis  of  the  deed  and  if  his 
claim  is  within  time.  The  point  of  limi- 
tation was  not  considered  or  decided  by 
the  learned  Munsif  though  he  had  Lframed 
an  issue  on  that  point. 

The  application  is  allowed  the  suit  is 
remanded  to  the  Court  below  with  direction 
to  re-instate  it  under  its  original  number 
and  to  dispose  of  it  after  determining  the 
remaining  points  involved  in  the  manner 
required  by  law.  Casts  here  and  hitherto 
will  abide  the  result. 


PANDtJRANG  V.  SAMBHASHfiO. 


4t 


Z    K. 


Application  allowed. 


(1)  66  Ind.  Cas   680,  8  O   L,  J  414. 

(2)  68  Ind.   Cas.  5o8;  90   L.  J.  331;  4  U,  P,  L.  R. 
(0.)  88;  (1922)  A.  I.  K.  (O )  287. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT* 

MISCELLANEOUS  CIVIL  APPEAL  No.  9-B  OF  1923. 

April  3,  1924. 

Present:—  Mr.  Kotval,  A.  J.  C. 
PANDURANG— APPELLANT 

versus 
SAMBH  ASHED—RESPONDENT. 

pjxecution  of  decree — Assignment  of  ' 

cation  by  assignee  for  execution  of  decre*,  •.-.••  f 
— Re-assignment  in  favour  of  decree- holder,  effect  of 
— Assignment  by  decree-holder  in  favour  of  third 
person — Second  assignee,  whether  entitled  to  execute 
decree— Res  judicata. 

An  assignee  of  a  decree  made  an  application  for 
being  substituted  in  place  of  the  decree-holder  and 
for  execution  of  the  decree.  The  application  was 
dismissed  as  the  assignee  produced  no  evidence  to 
prove  the  assignment.  A  subsequent  application  for 
execution  made  by  the  assignee  was  dismissed  on  the 
ground  of  res  judicata.  Thereafter  the  assignee  trans- 
ferred his  rights  under  the  assignment  back  to  the 
decree-holder,  who  then  assigned  the  decree  to  a  third 


person    and     the    latter    made     an    application   for 
execution  of  the  decree 

UMt  that  lj.y  the  re-assignment  of  the  decree  in 
favour  of  the  decree-holder,  the  latter  obtained  no 
better  right  to  execute  the  decree  than  the  assignee 
himself  possessed  and  that  consequently  the  second 
assignee  was  in  no  better  position  than  the  original 
assignee  or  the  decree-holder  and  was  not  entitled  to 
execute  the  decree,  [p.  48,  col.  2  J 

Miscellaneous  appeal  against  the  judg- 
ment of  the  Additional  District  Judge, 
Amraoti,  dated  the  7th  of  February  1923, 
remanding  the  case  by  Munsif,  Kelapur, 
dated  the  6th  of  November  1922. 

Mr.  V.  V.  Ghitale,  for  the  Appellant. 

Mr.  M.  R.  Bobde,  for  the  Respondent. 

JUDGMENT.— Madhanna  and  Mar- 
kandi  obtained  a  money  decree  against 
Pandurang  in  Civil  Suit  No.  359  of  1917. 
On  the  15th  August  1921  they  assigned  this 
decree  to  Tukaram.  Tukarain  applied  to 
be  substituted  in  place  of  the  decree  holders 
and  for  execution  of  the  decree.  This  ap- 
plication was  dismissed  as  Tukaram  pro- 
duced no  evidence  to  prove  the  assignment. 
Tukaram  made  a  second  application  for 
execution  which  was  dismissed  on  the 
ground  of  res  judicata.  Thereafter  Tukaram 
transferred  his  rights  under  the  assignment 
back  to  the  decree-holders  Madhanna  and 
Markandi.  Madhanna  and  Markandi  then 
assigned  the  decree  to  Bambhashiva  and 
Raglaoba.  The  proceedings  out  of  which 
this  appeal  arises  were  taken  by  Sambha- 
shiva  and  Raghoba  for  execution  of  the 
decree.  The  Original  Court  dismissed  the 
application  on  the  ground  of  res  judicata. 
The  lower  Appellate  Court  set  aside  that 
order  and  directed  the  execution  to  pro- 
ceed. The  judgment- debtor  appeals. 

It  is  admitted  in  this  Court  that  if  Tuka- 
ram had  transferred  the  decree  to  a  third 
party  instead  of  re-transferring  it  to  the 
decree-holders  such  third  party  would  have 
been  bound  by  all  the  disabilities  of 
Tukaram  and  could  not  have  executed  the 
decree. 

The  lower  Appellate  Court  in  this  con- 
nection writes; — 

lMThe  question  of  the  principle  of  res 
judicata  as  being  applicable  to  the  present 
case  is  the  preliminary  point  on  which  the 
decision  of  the  lower  Court  is  based.  The 
lower  Court  has  not  decided  the  case  on 
its  merits.  The  main  question  in  this  case 
is  whether  by  the  transfer  dated  the  llth 
July  1922  the  original  assignment  in  favour 
of  Tukaram  had  become  extinguished,  or, 
the  re-transfer  dated  the  llth  July  1922 


48 


BBSHl  KflSH  LAW  V.  SOI\7S  AND  KtRiRS  OF  StfAMSHER  KHAN. 


clothed  the  original  decree-holders  with 
the  rights  of  mere  transferees  from  Tuka- 
ram.  I  should  think  that  the  original 
assignment  dated  the  15th  of  August  1922 
became  -\  *  .:.!•'•  *  by  means  of  the  re  sale 
or  re-transfer  by  Tukararn  in  favour  of 
Madhanna  and  Markandi  the  original  decree- 
holders.  The  lower  Court  has  not  cited  any 
authority  nor  has  the  Pleader  for  the  res- 
pondent in  this  Court  shown  me  any  law  on 
the  subject  whereby  the  transfer  by  Tuka- 
ram  did  not  result  in  extinguishing  the 
assignment  in  favour  of  Tukaram.  When 
under  the  re-sale  the  decree-holders 
Madhanna  and  Markandi  became  entitled 
to  execute  the  decree  afresh,  it  seems  to 
me  that  the  only  result  that  could  ensue 
from  the  re- transfer  was  the  •  vi-  .:  .'-1  I-.JT 
of  the  assignment  in  favour  of  Tukaram 
which  was  dated  the  15th  of  August  1921. 
la  this  view  the  principle  of  res  judicata 
would  not  apply  even  though  the  motive 
of  the  several  assignments  be  what  it  is 
suspected  to  be.  In  short  the  present  ap- 
pellant cannot  be  held  to  be  a  representa- 
tive of  Tukaram  and  be  bound  by  what 
orders  had  been  passed  against  Tukaram. 
I  hold,  therefore,  that  the  applicant  is  entitl- 
ed to  execute  the  decree  and  that  the  ques- 
tion on  the  merits  should  have  been  tried 
by  the  lower  Court,11 

It  is  not  easy  to  follow  what  the  lower 
Appellate  Court  means  unless  it  be  suppos- 
ed to  hold  what  it  has  not  anywhere  said 
that  in  spite  of  the  assignment  by  the 
decree-holders  their  right  to  execute  the 
decree  continued  to  exist  in  a  state  of 
suspense.  The  argument  advanced  by  the 
learned  Pleader  for  the  respondents  is  that 
all  that  the  Court  decided  in  the  two  pro- 
ceedings taken  by  Tukaram  in  execution 
was  that  Tukaram  was  not  the  assignee  of 
the  decree-hoFdeis.  That  being  so,  the 
actual  assignment  upon  which  Tukaram's 
applications  were  based  must  be  treated  as 
ineffectual  or  non-existent  and  tha  decree- 
holders1  original  right  to  the  decree  con- 
tinued to  exist  as  if  no  assignment  had  been 
made  and  he  was  competent  to  assign  it 
'to  the  respondents.  The  subsequent  re-tr*ans- 
fer  by  Tukaram  to  the  decree-holders,  it  is 
said,  was  a  superfluity.  I  cannot  accept 
thia  argument  which  amounts  to  this,  that 
an  assignment  valid  in  all  respects  and 
treated  as  such  by  the  parties  thereto  may 
be  nullified  by  the  assignee's  failure  to 
produce  evidence  in  proof  of  it  when  he 
applies  for  execution.  The  decree-holders 


[92 1.  0.  1928] 

had  parted  with  all  their  rights  and  had 
no  dormant  or  suspended  right  which  could 
be  said  to  have  been  revived.  The  assign- 
ment in  favour  of  Tukaram  remained  in, 
force  as  between  the  parties  thereto  in  spite 
o£  the  decisions  in  proceedings  taken  by 
Tukaram,  and  it  must  be  held  that  whatever 
right  the  decree-holders  acquired  subsequ- 
ent to  the  transfer  to  Tukaram  was  acquired 
by  them  only  as  Tukaram's  transferees  and 
there  was  not  any  right  in  suspense  which 
had  revived.  It  is,  as  I  have  said  above, 
admitted  that  if  Tukaram  had  transferred 
his  right  under  the  assignment  to  a  person 
other  than  the  decree-holders,  that  person 
could  not  have  been  entitled  to  execute  the 
decree  because  of  the  decision  against 
Tukaram  in  the  proceedings  taken  by  him, 
I  see  no  reason  why  the  fact  that  Tukaram's 
transferees  are  the  decree- holders  should 
make  any  difference.  I  hold  that  the  decree- 
holders  as  the  transferees  of  Tukaram  were 
in  no  better  position  than  Tukaram  and  were 
debarred  from  executing  the  decree.  That 
being  so,  their  transferees  also  have  no 
right  to  execute  the  decree.  I  set  aside  the 
order  of  the  lower  Appellate  Court  remand* 
ing  the  case  for  further  trial  and  restore 
the  order  of  the  first  Court.  The  respond* 
ents  will  pay  the  appellant's  costs  in  all 
Courts  and  bear  their  own.  Pleader's  fee 
Ra.  25. 
z.  K.  Order  set  aside. 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM   APPELIATE  DECREE   No.  2076 

OF  1923. 
June  :'3,  1925. 

Present; — Mr.  Justice  Chakravarti, 

Raja  RISHI  KESH  (RISHI  CASE  IN 

Vakalatnamah)   LAW— PLAINTIFF 

— APPELLANT 

versus 

SONS  AND  HEIRS  OF  8HAMSHEH  KHAN 
AN  i)  OTHERS — DEFENDANTS— RESPONDENTS. 

Bengal  Cess  (Amendment]  Act  (IV  of  1010:,  ss,  5$t 
52 A—  Notice  that  tenure  has  been  included  within 
zemindari,  publication  of>  proof  of—Notice  published 
before  passiny  of  Amending  Act  of  1910,  <  whether  can 
be  proved  by  certificate  granted  subsequently— Cess, 
liability  to  pay. 

The  publication  oi  the  notice  mentioned  in  s  52  of 
thcj  Bongai  Cess  (Amendment)  Act  muat  bo  strictly 
proved  before  the  liability  of  the  holder  of  a  tenure 
in  respect  of  a  cess  can  arise.  |p.  49,  col  l.J 

A  certificate  given  by  tho  Collector  in 


(92  I.  0. 1926] 


RtSHI  KESH  tAW  V.  SONS  AND  HEIRS  Of  StfAMSHER  KHAK. 


49 


with  the  provisions  of  s.  52A  of  the  Bengal  Cess 
(Amendment)  Act  that  a  notice  under  s  52  of  the 
Act  lias  been  duly  published,  in  conclusive  proof  of 
the  fact  that  the  publication  w*»s  made.  It  is  im- 
material that  the  certificate  refers  to  a  publication 
which  took  piaee  before  the  pasting  of  the  Bengal 
Cess  (Amendment)  Act  IV  of  1910  which  added  s  52  A 
to  the  Bengal  Cess  (Amendment)  Act  The  Amending; 
Act  only  provides  the  method  of  proving  the  publi- 
cation of  the  notice  It  creates  no  new  right  nor 
does  it  affect  any  existing  right  A  notice  published 
before  the  passing  of  the  Amending  Act,  may,  there- 
fore, be  proved  by  the  production  of  a  certificate 
from  the  Collector  given  after  the  pushing  of  tiic 
Amending  Act  that  the  publication  had  been  duly 
made. 

Appeal  against  a  decree  of  the  Sub- 
ordinate Judge,  First  Court,  Midnapur, 
dated  the  3rd  January  1923,  affirming  that 
of  theMunsif,  Third  Court,  Midnapur,  dated 
the  20th  December  1921. 

Mr.  Narendra  Chandra  Bose  and  Babu 
Nalin  Chandra  Paul,  for  the  Appellant. 

JUDGMENT.— This  is  an  appeal  by 
the  plaintiff  and  arises  out  of  suit  for  re- 
covery of  cesses  from  the  holders  of  a  rent- 
free  tenure.  The  plaintiff's  case  was  that  he 
was  made  liable  for  the  payment  of  cesses 
for  the  rent-free  tenure  held  by  the  defend- 
ants and  had  paid  the  same,  that  he  now 
brought  the  suit  for  the  recovery  of  the 
amount  so  paid,  that  the  inclusion  of  this 
rent-free  tenure  within  the  zemindari  of  the 
plaintiff  was  duly  published  by  the  Col- 
lector under  s  52  of  the  Cess  Act  on  the 
29th  of  June,  1908,  and  that  after  the  pub- 
lication of  the  notification  the  defendants 
became  liable  to  pay  the  cesses  to  the  plain  t- 
iff.  The  defendants  in  the  suit  denied  the 
publication  of  the  notification,  under  s.  52. 
It  appears  from  the  case  of  Askanulla  Khan 
Bahadur  v.  Trilochan  Bagchi  (1)  that  the 
publication  of  such  notice  should  be  strictly 
proved  before  the  liablity  of  the  defendants 
can  arise.  To  obviate  the  difficulty  of  prov- 
ing such  Notification  Act  IV  of  1910  (B.  C.) 
added  s.  52A  to  the  Cess  Act  which 
runs  as  follows  : — "  Whenever  any  notice 
has  been  duly  published  under  s.  52,  the 
Collector  shall  sign  a  certificate  to  that 
effect,  and  such  certificate  shall  be  con- 
clusive proof  that  the  publication  has  been 
duly  made."  It  appears  that  in  compliance 
with  this  section  the  Collector  ot  Midnapore 
signed  a  certificate  on  the  28th  of  November 
1921.  The  plaintiff  in  order  to  prove  the 
due  publication  of  the  notification  under  s. 
52  produced  the  certificate  so  signed  by  the 
Collector  aad  contended  that  this  certificate 


should  be  accepted  as  the  conclusive  proof 
of  the  fact  that  the  notification  under  s.  52 
was  published  on  the  29th  of  June  1908. 

The  Courts  below  have  held  that  this  certi- 
ficate by  the  Collector  is  not  sufficient  in 
law  for  proving,  the  publication  of  the  noti- 
fication under  s.  52,  because  the  publica- 
tion was  made  before  the  amending  Act 
came  into  operation.  As  there  was  no  other 
independent  evidence  in  proof  of  the  fact 
of  the  publication  the  plaintiff's  suit  was 
dismissed  by  both  the  Courts  below. 

The  learned  Advocate  for  the  appellant 
has  contended  that  this  was  not  the  case 
of  giving  any  retrospective  effect  to  any 
enactment.  Under  s.  52A  the  Collector 
may  sign  a  certificate  at  any  time  after  the 
publication  of  the  certification  under  s.  52 
of  the  Cess  Act.  The  certificate  produced 
in  the  case  proves  that  notice  under  s.  52 
was  published  on  the  29th  of  June  1908. 
The  amending  Act  only  provides  the  method 
of  proving  the  publication  made  ;  it  creates 
no  new  right  nor  does  it  affect  any  existing 
right.  There  is  nothing  in  s.  52A  which 
prevents  the  Collector  from  signing  a  certifi- 
cate at  any  time  after  the  publication  has 
been  made.  When  such  a  certificate  is 
given  according  to  s.  52A  such  a  certificate 
will  prove  conclusively  that  the  publication 
was  made.  This  certificate  proves  con- 
clusively the  publication  on  the  29th  of 
June  1908.  The  liability  of  the  defendants 
is  established  when  such  a  publication  is 
proved  and  the  certificate  proves  that  pub- 
lication. 

I  think,  therefore,  the  contention  of  the 
appellant  must  prevail  and  it  should  be 
held  that  the  plaintiff  has  conclusively  prov- 
ed by  the  production  of  the  certificate  that 
the  notification  under  s.  52  was  published 
on  the  29th  of  June,  1908. 

The  judgments  of  the  Courts  below  are 
set  aside  and  the  case  is  sent  back  to  the 
Court  of  first  instance  for  the  trial  of  the 
suit  on  the  merits.  The  plaintiff  will  get 
the  costs  of  this  appeal.  Costs  of  the  lower 
Courts  will  abide  the  result. 

z.  K.  Appeal  decreed'^ 

Case  remanded* 


(1)  13  0,  197;  6  Ind.  Dec,  (s.  8.)  630, 


50  8.  C.  MITRA 

OUDH  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  APPLICATION  No.  64  OF  1925. 

October  5  &  13,  1925. 

Present:— Mr,  Hasan,  J.  C 

8.  C.  MITRA,  LIQUIDATOR  BANK  OF 

OUDH  LTD.,  LUCKNOW—  (Now  IN 

LIQUIDATION) — APPLICANT 

versus 

Thakar  NAWAB'ALI  KHAN  AND  OTHERS 
— OPPOSITE  PAKTY. 

Companies  Act  (VII  of  1913),  s.  235— Directors  of 
Company,  decision  of — Imprudent  act — Personal  lia- 
bility of  Directors,  when  arises—Personal  gam  acquired 
by  Director—Refund— Managing  Director,  duties  of— 
Act  inspired  by  personal  motives — Liability. 

Directors  of  a  Company  acting  within  their  powers 
and  with  reasonable  oare,  and  honestly  in  the  interests 
of  the  Company,  are  not  personally  liable  for  losses 
which  the  Company  may  suffer  by  leason  of  their 
mistakes  or  errors  of  judgment,  [p.  57,  col.  1  J 

Facts  which  show  imprudence  in  the  exercise  of 
powers  conferred  upon  the  Directors  of  a  Company 
will  not  subject  them  to  personal  responsibility;  the 
imprudence  must  be  so  great  and  manifest  as  to 
amount  to  gross  negligence,  as  for  example  where  the 
Directors  are  cognizant  of  circumstances  of  biich  a 
character,  so  plain,  so  manifest,  and  so  simple  m 
operation,  that  no  man  with  any  ordinary  degree  of 
prudence  acting  on  his  own  behalf  would  have  entered 
into  such  a  transaction  as  the  Directors  have  entered 
into.  But  if  the  Directors  are  authorized  to  do  an 
act  in  itself  imprudent,  they  are  not  to  be  held  res- 
ponsible for  the  consequences  of  doing  it.  [p.  56,  col.  V, 
p.  57,  col.  1J 

In  respect  of  duties  which,  having  regard  to  the 
exigencies  of  business  and  the  Articles  of  Association, 
may  properly  be  left  to  some  other  official,  the  Direc- 
tors aie,  in  the  absence  of  grounds  for  buspicion, 
justified  in  trusting  that  official  to  perform  such 
duties  honestly.  [p«  57,  cols,  1  &  2  ] 

The  Directors  must,  however,  observe  good  faith 
towards  their  share-holders  and  towards  those  who 
take  shares  from  the  Company  and  become  co-adven- 
turers with  themselves  and  others  who  may  join  them. 
The  maxim  caveat  emptor  has  no  application  to  such 
cases,  and  Directors  who  so  use  their  powers  as  to 
obtain  benefits  for  themselves  at  the  expense  of  the 
share-holders,  without  informing  them  of  the  fact, 
cannot  retain  those  benefits  and  must  account  for 
them  to  the  Company  so  that  all  the  share-holders 
may  participate  in  them,  fp  57,  col.  2] 

The  mere  fact  that  the  Directors  of  a  Company 
carrying  on  a  banking  business  allow  ad^v  anc-es  to  be 
made  on  the  strength  of  a  promise*  by  the  debtor  to 
execute  a  mortgage  instead  of  the  mortgage  itself, 
does  not  amount  to  an  act  of  misfeasance  on  the  part 
of  the  Directors  so  as  to  make  them  personally  liable 
to  the  extent  of  the  amount  of  the  advances.  Pp.  56, 
col.  2]  Lt 

Where  the  Directors  of  a  Bank  permit  a  depositor 
to  make  an  over-draft  and  one  of  the  Directors  who 
is  a  cr.editor  of  such  depositor  receives  a  portion  of 
the  amount  represented  by  the  over-draft  in  payment 
of  the  debt  due  to  him  by  the  depositor,  such  Director 
cannot  be  allowed  to  retain  the  amount  to  the  detri- 
ment of  the  share-holders  and  the  creditors  of  the 
Bank  and  is  liable  to  refund  it  to  the  Bunk.  [p.  57, 
CQU.J 


KAWAB  ALt  ItHAM.  [92  I.  0.  1926] 

The  duties  of  a  Managing  Director  are  of  a  higher 
standard  than  of  an  ordinary  Dhector,  and  where  by 
any  act  of  the  Managing  Director  which  is  inspired 
by  motives  of  personal  gain  the  Bank  suffers  loss, 
the  Managing  Director  is  liable  to  make  good  such 
loss  [p  58,  col  1  ] 

[Case-lav/  discussed  ] 

Application  under  sections  195,  215  and 
235  of  the  Indian  Companies  Act. 

Messrs  S.  N.  Roy,  K.  P.  Misra  and  Oh. 
Haidar  Husain,  for  the  Applicant. 

Mr.  H.  K.  Ghosh,  for  Opposite  Parties 
Nos.  1,  7  and  9. 

JUDGMENT. 

(October  5,  1025 )— These  proceedings 
originated  in  summons  issued  under  s.  235 
of  the  Indian  Companies  Act,  1913,  on  an 
application  presented  by  one  Mr.  8.  C. 
Mitra,  who  was  appointed  liquidator  by  a 
resolution  of  the  share-holders  dated  the 
15th  September  1923  of  the  Company 
called  the  Bank  of  Oudh  Limited.  The 
array  of  the  respondents  to  the  liquidator's 
application  is  as  follows: — 

I.  Thakur  Nawab  AH  Khan,  taluqdar  of 
Akbarpur,   district  Sitapur. 

2  Lala  Jai  Ram  Das,  merchant,  pro- 
prietor of  Lyallpur  Sugar  Company. 

3.  Raja  Hukum  Tej  Protap  Singh,   Raja 
of   Pratapner. 

4.  Kunwar  Shri  Krishna. 

5.  Lala  Jagmohan  Lai  Rastogi. 

6.  Kalidas  Kapur. 

7.  Lala  Bhola  Nath  Mehrotra,  rais. 

8.  Mr.  F.  A.  Labantik,  Engineer. 

9.  Babu  Manohar  Lai  Gupta. 

10.  Mr.    Jang     Bahadur     Sinha,     mer- 
chant. 

II.  Kunwar  Sarup  Narain,  zemindar. 
To  this  were  added  Mr.  C.  S.  Oehme  and 

Pandit  Ramriath  Dave  under  the    order  of 
the   Court  dated   the  14th  April  1925. 

The  Company  was  incorporated  on  the 
?5th  October  1920  and  the  Bank  was  floated 
sometime  in  February  1921.  The  last- 
mentioned  respondent,  Pandit  Ramnath 
Dave,  was  appointed  Manager  of  the  Bank 
by  a  resolution  patsed  at  a  meeting  of  the 
Board  of  Directois  held  on  the  6th  Novem- 
ber 1920.  He  occupied  that  position  till 
the  date  of  liquidation.  The  other  respon- 
dents were  the  Directors  of  the  Bank  and 
the  respondents  Lala  Jagmohan  Lai  and 
Babu  Jang  Bahadur  Sinha  were  also  Man- 
aging Directois.  The  following  table  will 
show  at  a  glance  the  date  on  which  each 
of  the  respondents  joined  the  Board  of 


[92  I.  0.  1926]  0.  d.  MlfftA  t?.  NAWAlULt  KHAtf. 

Directors  and  also    the  date  on  which  he  ceased  to  be  a  Director. 


51 


No. 


Name  of  the  Director. 


1  Thakur  Nawab  Ali  Khan 

2  L  Jairam  Das 


Raja  Hukam  Tej  Frotap  Bahadur  Singh 
Kunwar  Sri  Krishna 


5  Lala  Jagmohan  Lai 

6  Kalidas  Kapur 

7  Lala  Bhola  Nath  Mehrotra 

8  Mr.  E.  A.  Labanti 

9  Babu  Manohar  Lai  Gupta 

10  Babu  Jang  Bahar  Sinlia 

Again 

11  Kunwar  Sarup  Naram 

12  Mr.  C.  I.  S.  Oehme 


Lala  Jagmohan  Lai  held  the  office  of 
the  Managing  Director  from  the  19th  De- 
cember 1921  and  continued  to  hold  it  till 
the  date  of  liquidation.  Babu  Jang  Baha- 
dur Sinha  was  the  M  .:*•  -  Director  from 
the  19th  February  1921  till  the  12th  August 
1921.  The  respondent,  Raja  Hukam  Tej 
Protap  Bahadur  Singh,  died  during  the 
pendency  of  these  proceedings  and  no 
steps  have  been  taken  to  bring  on  the  re- 
cord any  of  his  legal  representatives.  Ser- 
vice of  summons  could  not  be  effected,  in 
spite  of  strenuous  efforts,  on  the  respon- 
dent, Kunwar  Sri  Krishna.  Mr.  Oehrne 
lives  for  some  time  past  at  Rangoon. 
He  has  appeared  neither  personally  nor 
through  any  Pleader  of  the  Court.  I  have 
thought  it  advisable  to  conclude  these  pro- 
ceedings by  treating  Raja  Hukam  Tej 
Protap  Bahadur  Singh,  Mr.  Oehme  and  K. 
Srikrishna  as  no  party  to  the  application 
and  have  given  liberty  to  the  liquidator 
to  take  any  legal  action  he  may  deem  fit 
as  against  these  persons  hereafter.  It  is 
also  necessary  to  mention  that  one  Babu 
Peare  Lai  Bhargava  was  also  a  Director 
of  the  Bank  from  the  date  of  its  incorpora- 
tion till  about  the  middle  of  July  1921  when 
he  died. 

The  liquidator  claims  compensation 
from  the  respondents  for  their  acts  of  mis- 
feasance and  breach  of  trust  in  respect  cf 
the  following  four  transactions: — 

L  Over-draft  without  any  security  allow- 
ed to  Mr.  E.  A.  Labanti  to  the  extent  of 
Rs.  91,516  between  the  4th  March  1921  and 
the  20th  September  1921. 

2.  Over-draft  without  any  security  al- 
lowed to  Mr.  E,  A.  Labanti  from  the  20th 


Date  of  appointment          Date  of  resignation. 


19th  February  1921 
do 

do 
19th  December  1921 

do. 
Ho, 

31st  March  1922 
do 

14th  October  1922 
IHth  February  1921 

4th  October*  1922 
5th  December  1922 

19th  February  1921 


April  1923 

Continued  till  the  date  of 
liquidation. 
April  1922. 

Continued  till  the  date  of 
liquidation 

do. 

March  1922. 

16th  November  1922. 

Continued  till  the  date  of 

liquidation. 

do. 

12th  August  1921 

14th  March  1923 

Continued  till  the  date  of 

liquidation. 
12th  July  1921 


liquidator 
personally 
mentioned 
thereon  is 


September  1921  to  the  7th  July  1922  to  the 
extent  of  Rs.  41,3y3-15-4. 

3.  Over-draft  without  any    security  al- 
lowed to  Messrs  Labanti  and  Co.,  Limited 
of  Lucknow  from  the  21st  October  1921  up 
to  the   12th   June    1922    to  the    extent  of 
Rs.  4,303-5~G. 

4.  Over-diaf  t  without  any  security  allow- 
ed to  the  Upper  India  Investment   Limited 
(now  in  liquidation)  from  the   19th  April 
1922  up   to  the  6th  February  1923  to  the 
extent  of  Rs  28,927-50. 

The    ground    on  which    the 
seeks    to  make  the  respondents 
liable  for    the  sums  of  money 
above  together    with    interest 
stated    in    a    somewhat    cryptic    form  in 
para.  7  of  the  application.    That  paragraph 
is  as  follows: — 

"7.  That  the  transactions  detailed  in 
para.  5  of  the  application  are  on  the  face 
of  them  so  reckless  and  extravagant 
in  their  nature  as  lead  the  applicant  to 
infer  either  fraud  or  gross  and  wilful  neg- 
ligence on  the  part  of  the  persons  concern- 
ed in  the  management  of  the  aforesaid 
Bank  and  are  nothing  short  of  breach  of 
trust  on  the  part  of  the  Directors  of  the 
Bank  during  whose  tenure  of  office  the 
aforesaid  transactions  were  entered  upon." 

The  respondents  have  generally  denied 
that  they  are  guilty  of  any  act  of  misfeas- 
ance or  breach  of  trust  of  fraud  or  gross 
and  wilful  negligence.  They  have  also 
pleaded  ignorance  of  the  transactions 
which  form  the  subject-matter  of  the 
charges  stated  in  the  liquidator's  applica- 
tion and  good  faith.  One  of  the  respond- 
ents, Thakur  Nawab  Ali  Khan,  has  also 


52 


put  forward  bar  of  limitation  to  the  appli- 
cant's claim.  Home  of  the  respondents 
have  entered  the  witness-box  and  given 
evidence  in  relation  to  the  subject-matter  of 
the  charges.  They  are  Thakur  Navvab  AH 
Khan,  Lala  Jagmohan  Lai,  Babu  Bhola 
Nath  Mehrotra,  Mr.  E.  A.  Labanti,  Babu 
Manohar  Lai  Gupta,  Babu  Jang  Bahadur 
Sinha  and  Pandit  Ramnath  Dave, 

No  material  facts  are  in  dispute  in  these 
proceedings.  The  controversy  relates  to 
the  inferences  and  the  legal  consequences 
which  may  flow  from  the  admitted  or 
proved  facts.  It  is  proved  by  the  books 
of  the  Bank  in  the  possession  of  the 
liquidator  and  shown  to  the  respondents  at 
the  trial  that  the  over- drafts  as  stated  in 
the  liquidator's  application  were,  as  a 
matter  of  fact,  made  and  eno  argument 
was  addressed  to  me  by  or  on  behalf  of  any 
one  of  the  respondents,  challenging  the 
accuracy  of  the  proof  just  now  mentioned. 
The  exact  nature  and  specific  details  of 
these  transactions  will,  however,  be  stated 
by  me  in  the  course  of  this  judgment. 

It  will  be  convenient  to  take  up  first  the 
over-draft  transaction  with  Mr.  E.  A. 
Labanti.  In  this  connection  the  earliest 
document  on  the  record  is  the  copy  of  a 
letter  dated  the  14th  July  1921  addressed  by 
Mr.  Labanti  to  the  Manager  of  the  Bank. 
This  copy  has  been  accepted  by  both  sides 
as  admissible  evidence  in  the  case.  1  think 
it  necessary  to  incorporate  the  whole  of 
that  letter  in  this  judgment. 

"0142-15-21  14th  July  1921. 

"Confidential 

"The  Manager,  Bank  of  OudL  Ltd., 
Lucknow. 

"Dear  Sir, 

"In  continuation  of  our  verbal  conversa- 
tion, we  beg  to  submit  this  our  application 
for  a  loan  of  rupees  one  and-a-half  lakhs 
on  the  security  of  our  buildings  and  lands, 
valued  at  rupees  three  lakhs,  for  which  a 
true  copy  of  the  valuation  certificate  is 
herewith  enclosed.  We  may  here  also 
mention  that,  though  our  property  has  been 
valued  at  three  lakhs  by  Messrs.  Lane 
Brown  and  Hewlett,  Government  Valuators, 
the  property  isworth  very  much  more. 

"The  mortgage  to  be  in  the  first  case  for 
one  year,  or  three  years.  We  give  below  a 
list  of  our  creditors,  with  the  approximate 
Bums  due  them,  from  which  it  will  be  seen 
that  .you  will  only  have  to  pay  the  decreed 
amount  No.  1  on  the  list,  as  the  remainder 
QilUo  JSfp/  6  will  not  be  paid  in 


S.  0.  M1TJRA  ?;.  NAWAB  ALl  KHAN.  [92  I.  0.  1926] 

cash  as  they  have   agreed  to  deposit  their 


respective  amounts    with  your  Bank  on  a 
fixed  deposit  account. 

"List  of  creditors  is  as  follows:- 

Ks.  a.  p. 

1.  Decree 'Mu  i  iMm'"       .       43,000  U  0 

2.  Babu     Tnloki     Nath 

Bhargava                ...      45,000  0  0 

3.  Babu  Peari   Lai   Bhar- 

gava                       ...      22,000  0  0 

4.  Mr.  0.8.  Pandya        ...      13,000  U  0 

5.  Pandit  Kandhya  Lai...       6,OUO<  0  0 
G.     Mr.  J.  B.  Sinha          ...        8,000  0  0 


Total  Rs. 


1,37^0    0 

ige  i  ()f  rupe 


0 


"There  is  another  mortgage  \  pf  rupees 
fifty  thousand  on  our  property,  which 
mortgage  will  fall  due  on  the  13tli  of  Novem- 
ber 1921  and  which  when  due^will  have  to 
be  taken  over  by  your  Bank,  Bringing  the 
total  amount  due  to  rupees  two  lakhs. 

i4As  the  matter  is  most  urgent,  we  shall 
thank  you  for  an  immediate  reply  if 
possible. 

"Thanking  you  in  anticipation.1' 

(Exhibit  L.). 

From  the  dates  given  in  the  liquidator's 
application  and  stated  by  me  in  an  earlier 
portion  of  the  judgment  it  1vill  be  seen 
that  advances  to  Mr.  Labanti  had  com- 
menced on  the  4th  March  1921,  that  is  to  say, 
4  months  10  days  earlier  than  the  letter  of 
the  14th  July  1921.  The  reasonable  infer- 
ence is  that  the  transaction  with  Mr.  Labanti 
was  in  course  of  negotiation  before  the 
formal  application  for  the  loan  above  refer- 
red to  was  made  by  Mr.  Labanti.  As  to 
when,  by  whom  and  in  what  circumstances 
the  advances  prior  to  the  14th  July  1921 
were  sanctioned  the  record  of  the  case  is 
absolutely  silent.  In  this  state  of  evidence 
the  only  proper  conclusion  seems  to  me  to 
be  that  the  advances  were  permitted  in 
anticipation  of  the  settlement  with  Mr. 
Labanti. 

It  appears  from  the  minute  of  the  pro- 
ceedings of  a  meeting  of  the  Board  of 
Directors  that  a  notice  was  issued  on  the 
29th  July  1921  for  a  Board's  meeting  to  be 
held  on  the  30th  July  1921.  Item  Mo.  3  ojE 
that  notice  was  as  follows: — 

"To  dispose  of  the  application  of  Messrs. 
Labanti  and  Co.,  for  an  advance  of 
Es.  1,50,OOU  by  mortgage  over  his  kothi" 
This  notice  is  contained  in  Ex.  3.  On 
it  are  endorsed  the  following  remarks  rele- 
vant to  the  question  under  consideration 


[92  I.  0.  1926] 


S.  C.  MITRAL.  NAWAB  AL1  KHAN. 


53 


made  by  the  Director,  Babu  Jang  Bahadur 
Sinha;— 

4<If  the  transaction  be  considered  sound 
by  the    co-directors    and    if  the  Bank  can 
a-fford    the  loan  may  he   sanctioned.     This 
will  better  the  situation  of  the    Bank  as 
5  percent,  commission  will  be  a  substantial 
earning  and  will  cover  the  preliminary  and 
other  expenses "     The    proposed    meeting 
did   not    come  off  until  the   12th  August 
1921,    At  this  meeting  the  following  gentle- 
men were  present: — 
Mr.  G.  S.  Oehme. 
Mahant  Sant  Rain  Das. 
RajaPratap  Ner. 

The  resolutions  passed  at  that  meeting 
and  which  have  a  bearing  on  the  present 
case,  were  as  follows:  — 

"Resolved  that  the  Manager  be  directed 
to  correspond  with  Messrs.  Ram  Chandra 
Ram  Saran  to  inquire  if  they  are  agreeable 
to  take  payment  of  the  first  mortgage  just 
now  and  the  second  one  subsequently. 

''Resolved  that  the  Manager  may  take  the 
agent  of  the  mortgagee  to  the  undersigned 
to  discuss  the  matter.11  The  "undersigned" 
was  Mr.  C.  Sandford  Oehme  (Ex.  3).  It  is 
agreed  that  the  mortgages  mentioned  in 
these  resolutions  related  to  Mr.  Labanti's 
property. 

The  proceedings  of  the  meeting  of  the 
Board  of  Directors  dated  the  19th  December 
1921  supply  the  next  relevant  matter.  At 
this  meeting  the  following  Directors  were 
present:  — 

Raja  Hukum  Tej  Protap  Singh. 
Mahant  Sant  Rain  Das. 
Thakur  Nawab  Ali  Khan. 
Lala    Jagmohan   Lai    was    appointed    a 
Director  and  also  a  Managing  Director  of  the 
Bank  and    the   sixth  resolution  passed  at 
that  meeting  was — 

''Resolved  that  the  undersigned  Directors 
disapprove  of  the  manner  in  which  Messrs. 
Labanti  and  Co.'s  transaction  has  been 
done  in  utter  disregard  of  the  directions 
laid  down  in  the  Board's  meeting  dated 
12th  August  1921  but  as  the  money  has 
already  been  advanced  to  them  a  mortgage- 
deed  with  sufficient  and  proper  security 
should  be  executed  by  Messrs.  Labanti 
and  Co  ,  and  the  Managing  Director  be  re- 
quested to  see  to  its  completion,11  It  is 
agreed  that  "Messrs.  Labanti  and  Co."  is  a 
mistake  for  Mr.  E.  A.  Labanti  (Ex.  3). 
Having  regard  to  the  dates  of  the  over-draft 
transactions  with  Mr.  Labanti  it  will  be 
that  #19  first  se^s  of  over-drafts  ag- 


gregating to  Rs.  91,516  had  already  been 
completed  and  a  portion  of  the  second  had 
also  been  perfected  before  the  meeting  of  the 
19th  December  1921  was  held. 

From  a  perusal  of  the  minutes  of  an  ex- 
traordinary general  meeting  of  the  share- 
holders of  the  Bank  (Ex.  4)  held  on  the  3rd 
October  1922  it  appears  that  a  resolution 
was  passed  that  "a  commission  be  appointed 
to  investigate  the  affairs  of  the  Bank  and 
report  at  the  next  meeting11  .  ...  The  com- 
mission consisted  of  the  following  gentle- 
men*— 

"J.  B.  Sinha  (Jang  Bahadur  Sinha). 

N.  K.  Shavaksha. 

Mr.  Murari  Lai  Bl.Mi'ir-u.i,  and 

B.  Manohar  Lai." 

At  this  meeting  the  following  gentlemen 
amongst  others  were  present :  — 

Thakur  Nawab  AH  Khan. 

Mr.  E.  A.  Labanti. 

Kiin war  Shri  Krishna. 

B.  Bhola  Nath  Mehrotra. 

B.  Manohar  Lai  Gupta. 

B.  Jang  Bahadur  Sinha,  and 

Babu  Jagmohan  Lai. 

On  the  following  day,  that  is  the  4th 
October  1922,  a  meeting  of  the  Board  of 
Directors  was  held.  At  this  meeting  a 
resolution  was  passed  requesting  the 
Managing  Director,  that  is  Lala  Jagmohan 
Lai,  to  afford  every  facility  to  the  com- 
mission in  the  matter  of  the  investigation 
of  affairs  of  the  Bank.  An  other  resolution 
passed  was  "that  a  suit  be  at  once  filed 
against  Mr.  E.  A.  Labanti  and  P.  A, 
Labanti  and  Co.  for  the  recovery  of  the 
money  due  to  the  Bank  from  them.  In  this 
connection  the  Directors  thankfully  accept 
the  offer  of  a  temporary  advance  of  the 
following  items  from  the|under-noted  Direct- 
ors with  a  view  to  enable  the  Bank  to  pro- 
ceed with  the  case." 

Rs. 
"1.    Thakur  Nawab  Ali  Khan     ...       500 

2!  Haja  Sahab  Partapner  (i.  e. 
Raja  Hukum  Tej  Pratap 
Bahadur  Singh).  ...  750 

3.    L.  Manohar  Lai  Gupta        ...      250 

Rs.  1,500" 

Finally  the  following  resolution  appears 
in  the  proceedings  :— "On  proposal  being 
put  up  by  L.  Manohar  Lai  Gupta  it  was 
resolved  that  the  Managing  Director  be 
requested  to  resign  his  position  in  view 
of  the  affairs  of  the  Bank  aud  he  may 


54 


S,  C.  M1TRA  V,  NAWAB  ALI  KHAN. 


also  be  requested  to  refund  the  salary 
he  has  so  far  received  in  view  of  the 
circumstances  of  the  Company  and  that  he 
may  be  retained  as  a  Director  to  render 
his  assistance  to  the  future  administra- 
tion by  his  past  experience  and  know- 
ledge of  the  affairs  of  the  Bank.  Lala 
Jagmohan  Lai  kindly  having  consented  to 
the  terms  of  this  resolution,  it  was  further 
resolved  to  eend  him  a  letter  of  thanks  on 
behalf  olthe  Board  for  his  ready  acceptance 
of  the  proposal.""  To  my  mind  the  idea 
underlying  this  resolution  is  that  as  the 
Bank  was  fast  approaching  the  state  of 
bankruptcy  it  was  considered  advisable  to 
dispense  with  the  services  of  a  Salaried 
Managing  Director. 

It  was  assumed  at  the  hearing,  and  I 
think  rightly  that  one  of  the  matters 
with  which  the  commission  was  charged 
was  an  inquiry  into  the  over-draft 
advances  to  Mr.  Labanti.  It  is  unfor- 
tunate that  the  record  of  these  proceed- 
ings is  wholly  silent  as  to  the  result 
of  the  inqiiiry,  if  any.  The  first  and  the 
only  report  of  the  Directors  was  pub- 
lished on  the  21st  June  1922.  The 
report  is  signed  by  Kunwar  Shri  Krishna, 
Jagmohan  Lai  and  E.  A.  Labanti  as  Direct- 
ors. To  this  report  is  also  attached  u balance- 
sheet  of  the  Bank  of  Oudh,  Limited, 
Lucknow  as  at  31st  March  1922."  This 
sheet  is  again  separately  signed  by  the 
three  Directors  mentioned  above  and  also 
by  Ramnath  Dave,  the  manager.  It  also 
bears  the  certificate  of  the  auditors,  Basant 
Ham  and  sons  (Ex.  A2).  The  report  to- 
gether with  the  balance-sheet  was  intended 
to  be  presented  at  an  ordinary  general 
meeting  of  the  share-holders  to  be  held  on 
the  8th  July  1922.  This  proposed  meeting 
was  not  held,  however,  until  the  19th  No- 
vember 1922.  At  this  meeting  amongst 
others,  the  following  gentlemen  were  pre- 
sent : — 

Mr.  E.  A.  Labanti. 

Lala  Jagmohan  Lai,  and 

Kanwar  Shri  Kirshna  (Ex.  4). 

In  relation  to  the  Directors1  report 
the  following  resolution  was  passed  :— 
"That  the  balance-sheet  be  and  is  hereby 
passed  and  adopted  subject  to  the  auditors' 
report  read  by  the  chairman  before  the 
meeting/'  Now  in  this  balance-sheet  on  the 
side  of  the  assets  are  mentioned  several 
debts  including  the  following ; 


[92 1  0.  1926] 

1.  Debts   considered  good       Rs.    a.    p. 

in  respect  of  which  the 
Bank  has  no  security 
other  than  debtors'  per- 
sonal security  ...  1,18,974  10  7 

2.  Of  the  above  debts  due 

from  a  Director      ...  1,35,133  14  10 

3.  Bad  or  doubtful  debts...  Nil. 

In  respect  of  the  second  entry  the  follow- 
ing statement  appears  in  the  report : — 

"It  would  be  further  observed  from  the 
balance-sheet  before  you  that  a  sum  of 
Rs.  1,35,133-14-10  is  shown  as  due  from  one 
of  the  Directors  of  the  Bank.  As  a  matter 
of  fact  this  sum  was  advanced  to  the  gentle- 
man long  before  he  was  elected  as  Director 
which  was  on  the  1st  March  1922  (the  last 
day  of  the  period  under  report)  and  the 
sum  had  to  be  shown  in  the  balance-sheet 
to  fulfil  the  requirements  of  the  Indian 
Companies  Act."  It  is  agreed  in  these 
proceedings  that  the  second  entry  in  the 
balance-sheet  and  the  statement  in  the 
report  relate  to  the  over- draft  transactions 
of  Mr.  E.  A.  Labanti. 

Now  some  more  facts  must  be  stated  in 
relation  to  the  transactions  discussed  in  the 
preceding  paragraphs.  A  portion  (that  is 
Rs.  48,300)  of  the  first  series  of  the  over- 
drafts was  subsequently  secured  by  an  assign- 
ment to  the  Bank  of  a  fourth  mortgage  in 
respect  on  the  Labanti  buildings  by  the 
mortgagee  Babu  Trilokinat  Bhargava.  This 
Babu  Trilokinath  Bhargava  is  the  same 
gentleman  who  is  mentioned  at  No.  2  of  the 
list  of  creditors  given  in  Mr.  Labanti's  letter 
of  the  14th  July  1921  already  quoted  and 
it  is  agreed  that  the  debt  shown  opposite  to 
his  name  in  the  said  list  was  the  sum  due 
to  him  under  the  mortgage  just  now  men- 
tioned. The  mortgage  was  transferred  by 
the  Bank  to  a  firm  of  the  name  of  Baldeo 
Das  Balgobind  in  satisfaction  of  a  claim 
arising  out  of  a  deposit  standing  in  the  books 
of  the  Bank  in  favour  of  the  firm.  The 
entry  dated  the  9th  July  1922  shows  that 
there  was  a  ciedit  balance  for  a  sum  of 
Rs.  32,«90  in  favour  of  the  firm.  It  also 
appears  from  the  evidence  of  Lala  Jag- 
mohan Lai  that  one  Pandit  Achuta  Ram,  the 
treasurer  of  the  Bank,  had  deposited  a  sum 
of  Rs.  15,000  with  the  Bank  as  security  for 
the  discharge  of  the  duties  of  the  office 
which  he  held.  When  Achuta  Ram  re- 
signed his  appointment  he  asked  the  Bank 
for  the  return  of  his  security  deposit. 
The  Bank  was  unable  to  do  so.  To  settle 
this  transaction  the  firm  gave  a  hand-not© 


£92 1  0. 1926] 


S,  0,  MITRA  V,  NAWAB  ALT  KHAN. 


55 


to    Achuta    Ram    for  Rs.  15,000  and    the 
Bank  set  off  that  amount  as  against  the  price 
of  the  mortgage     In  other  words  the  Bank 
sold    the    mortgage    to    the   firm   for  the 
credit  balance  of  the  19th  July   1922  and 
this  amount  of  Rs.  15,000.    The  result  was 
that  the  balance  due  to  the  Bank  from  Mr. 
E.  A.  Labanti  in  respect  of  the  first  series 
of  the  over-draft    was    Rs,     91,516   minus 
Rs.  48,300,  that  is  Rs.  48,L>16    A  suit  for  the 
recovery  of  this  balance  was  instituted  by 
the  Bank  in  the  Court  of  the  Subordinate 
Judge    of   Lucknow    against    Mr.    E.    A. 
Labanti  and  a    decree     was  obtained  for 
Rs.48,000odd.  Several  attempts  in  execution 
of    the    decree  were  made  to  realize  the 
amount  due  thereunder  but  all  have  failed 
and  no  action  has  been  taken   in  respect  of 
the  second  series  of  the  over-drafts.  Finally 
oa  the  14th  July  1925  during  the  pendency 
of    these  proceedings  Mr.    E.  A.    Labanti 
applied  to  the  Court  of  the  District  Judge  of 
Lucknow  for  a  declaration  of  his  insolvency. 
One  word  as  to  the  nature  of  the  advances 
made  by  the  Bank  to  Mr.  Labanti.     Out  of 
the  total  sum  of  the  two  series  of  the  over- 
drafts,   Rs.    41,393-154   was    paid  by    the 
Bank  to  Mr.    E.  A.  Labanti  personally  and 
to  persons  holding  cheques  drawn  by   him. 
The  figure  just  now  mentioned  also  includes 
interest  on  those  advances.    This  is  proved 
by  the  entries  in   the  books  of  the  Bank 
now  in  the  possession  of  the  liquidator.     An 
abstract  of  those  books  has  been  prepared 
and  filed  in  these  proceedings.    The  rest  of 
the  money  covered   by  the    over- drafts  was 
dealt  with  in  the  following  manner  : — Mr. 
E.  A.  Labanti's  creditors  absolved  him  from 
liability  for  their  claims  and  in   lieu  there- 
of accepted  from  the  Bank    fixed  deposit 
receipts  for  the  sums  of  money  due  to  them 
from  Mr.    Labanti    Amongst  these  credi- 
tors   were    Babu  Jang  Bahadur  Sinha  and 
Babu  Peare  Lai  Bhargava  (now  deceased). 
Both  of  them  were  Directors  of  the  Com- 
pany.    They     are     both     mentioned    in 
the    list    of    creditors    as  given    in    Mr. 
Labanti's  letter  dated  the  14th  July  1921. 
It    is  agreed    that    these    two  gentlemen 
received  fixed  deposit  receipts  from    the 
Bank    for  Rs.  7,630  and    Rs.    21,227-10  9 
respectively.    The  receipts  for  the  debts  of 
Babu  Pcare  Lai  Bhargava  were  issued  in 
the  names  of  hb  son,  brother  and  nephew. 
Babu  Jang  Bahadur  Sinha  realised  in  cash 
from  the  Bank  Rs.  2,370-7-6  on  the  2nd  May 
1922,  Rs  2,439-13  3  on  the  17th  November 
1922  wd  $8.3,034-0-6  or*  the  7th  J<wiary.l922 


on  his  fixed  deposit  receipts  as  they  fell  due. 
As  to  the  mortgage  security  offered  by 
Mr.  Labanti  in  his  letter  of  the  14th  July 
1921  it  is  enough  to  say  that  no  moitgage 
was  ever  executed.    It  appears  from  the  evi- 
dence that  at  an  early  stage  of  the  transac- 
tion a  draft  of    the  proposed  deed  of  mort- 
gage   tyas  prepared  and  even  a  stamp  of 
the   requisite  value    was    purchased.     Mr. 
Labanti  says  that    the   mortgage-deed  was 
not  executed  for  the  reason  that  the  Bank 
had  no  funds  large  enough    to    fulfil  the 
the  agreement  for  the    loan  of  Rs.  1,50,000. 
On  the  other  hand,  Ramnath  Dave  says  that 
Mr.  Labanti  refused  to  execute  the  promis- 
ed mortgage.    In  this  conflict    of  evidence 
I  am  prepared  to  accept  the  statement  of 
Ramnath  Dave  as  more  reliable  because  it 
is  consistent    with  admitted  facts  and  pro- 
babilities of  the  case.    It  appears  from  the 
proceedings  of  the  meetings  of  the  Board 
of  Directors,  to  which  reference  has  already 
been    made,    that    the    Board  was  always 
anxious  to  complete  the  mortgage  transac- 
tion and  1  see  no  reason  whatsoever  why  the 
Directors    should  have  refused  to  get    it 
through    for  the    sums  that  they  had  al- 
ready   advanced    to   Mr.   Labanti    even  if 
they    had  no    money    to     make    up  the 
total    of    Rs.    1,50,000.      Mr.  Labanti    has 
filed  certain    documents    showing  that  he 
called  upon  the  Bank  to  complete  the  loan 
of  Rs.  1,50,000  and  to  have  the  mortgage 
executed.    I  prefer  to  take  the  view  that 
after  having  received  nearly  all  which  the 
Bank  had  promised  to  advance,  Mr.  Labanti 
invented  excuses  to  extricate  himself  from 
the  performanceof  his  partof  the  transaction. 
At  the  conclusion  of  the  proceedings  before 
me  Mr.  Labanti  personally  and  also  through 
his  Counsel,  Mr.  K.   P.  Misra,  agreed   that 
an    order    of   payment    of    the    sum    of 
Rs.  76,593-15-4  due  from  him  to  the  Bank 
may  bs  made  against  Mr.  Labanti  in  these 
proceedings.    This  concludes  the  narrative 
of  the  events  so  far  as  the  charge  founded 
on  the  over-draft  transactions  of  Mr.  Labanti 
is  concerned. 

Now  I  come  to  the  charge  of  the  over- 
draft of  Rs.  23,927-5  allowed  to  the  Upper 
India  Investment  Limited  (now  under 
liquidation)  between  the  9th  April  1922 
and  tho  6th  February  1923.  The  ?\[  mauiX' 
Director  of  the  Investment  Company  "was 
Kun war  8hri  Krishna.  The  money  covered 
by  the  over-draft  was  paid  in  cash  under 
cheques  issued  by  Kunwar  Shri  Krishna 
and  $9  we  have  seen  before  he  was  also 


8.  C.  MITBA  V,  NAWAB   ALI  KHAN. 


[92  I.  0. 1926) 


one  of  the  Directors  of  the  Bank  from  the 
19th  December  1921  to  the  15th  September 
1923.  The  over  draft  was,  therefore,  made 
while  Kunwar  Shri  Krishna  was  the  Director 
of  the  Bank  and  the  Managing  Director  of 
the  Investment  Company.  It  also  ap- 
pears from  theevidencethat  Jagmohan  Lai's 
brother,  !*>•;.•  Mini,  was  one  of  the  Directors 
of  the  Upper  India  Investment  Limited. 
This  Balgobind  was  one  of  the  partners 
of  the  firm  Baldeo  Das  and  Balgobind, 
whose  dealing  with  the  Bank  has  already 
been  mentioned  in  this  judgment.  Baldeo 
Das  is  the  father  of  Lala  Jagnaohan  Lai. 
In  his  evidence  in  these  proceedings  Lala 
Jagmohan  Lai  says  that  the  firm  is  owned 
by  Balgobind  alone  and  that  he  has  no 
interest  in  that  firm.  It  would  be  a  severe 
strain  on  my  credulity  if  I  were  to  accept 
the  truth  of  Lala  Jagmohan  Lai's  version 
of  his  relationship  with  the  firm.  He 
admits  that  his  father,  brother  and  he 
constitute  a  joint  Hindu  family :  they  all 
live  in  one  and  the  same  house  and  mess 
together.  He  also  admits  that  there  has 
been  no  partition.  My  finding,  therefore, 
is  that  he  is  a  partner  in  the  firm  of  Baldeo 
Das  and  Balgobind. 

The  third  charge  relates  to  the  over- 
draft of  Rs.  4,303-5-6  allowed  to  Messrs. 
Labanti  &  Co.,  Limited.  On  the  statement 
of  Mr.  E.  A.  Labanti  in  the  witness-box  it  is 
quite  clear  to  me  that  the  loan  advanced  by 
the  Bank  to  Messrs.  Labanti  &  Co.,  was 
settled  by  a  cheque  issued  by  Mr  Labanti 
on  his  separate  account  with  the  Bank  and 
the  subsequent  entry  in  the  books  of  the 
Bank  as  against  Messrs.  Labanti  &  Co., 
was  due  to  the  mistake  that  some  cheques 
issued  by  Mr.  Labanti  on  his  personal 
account  were  thrown  into  the  account  of  the 
Company.  At  the  hearing  no  argument 
was  addressed  to  me  as  regards  this  over- 
draft. This  charge,  therefore,  fails  alto- 
gether. 

I  now  proceed  to  record  my  conclusions  of 
facts  as  regards  the  two  charges  of  over- 
drafts allowed  to  Mr.  E.  A.  Labanti  k  dis- 
cussed in  the  preceding  portions  of  'this 
judgment.  Mr.  Labanti's  letter  dated  the 
14th  July  1921  clearly  contained  an  offer 
of  a  mortgage  of  the  Labanti  buildings  in 
consideration  of  a  loan  of  Rs.  1,50,000  to  be 
advanced  by  the  Bank.  Though  there  is  no 
clear  record  of  a  formal  acceptance  of  the 
said  offer  by  the  Bank  but  from  the  conduct 
of  the  parties  concerned  it  is  amply  mani- 
fest to  me  that  the  offer  was  accepted  by 


the  Board  of  Directors  as  a  whole.  Thus 
there  was  a  complete  contract  between 
Mr.  Labanti  and  the  Directors  of  the  Bank 
in  respect  of  the  transaction  of  the  loan  of 
Rs.  1,50,000  by  the  Bank  to  Mr.  Labanti  in 
consideration  of  Mr.  Labanti  giving  a 
mortgage  of  the  Labanti  buildings  as  a 
security  lor  the  loan.  All  the  Directors  of 
the  Bank  at  the  time  when  Mr.  Labanti 
opened  the  negotiations  were  a  party  to  this 
contract.  Indeed  the  advances  were  made 
to  Mr.  Labanti  even  previous  to  the  offer 
and  I  hold  that  they  were  made  with  the 
consent  of  all  the  Directors  then  on  the  Board 
in  anticipation  of  the  contract.  I  further 
hold  that  all  the  subsequent  advances  which 
constitute  the  two  series  of  over-drafts 
under  consideration  were  made  within  the 
knowledge  of  the  Board  of  Directors  as  it 
stood  from  time  to  time  and  the  contract 
mentioned  above  was  accepted  by  the 
Board  as  sufficient  security  for  the  advances. 
The  Directors  were  all  along  confident,  and 
they  had  no  reason  to  be  otherwise,  that 
Mr.  Labanti  would  perform  his  part  of  the 
contract  by  executing  the  promised  mort- 
gage. The  confidence  thus  reposed  was 
abused  and  the  mortgage  was  never  execut- 
ed. The  substance  of  the  charge  against 
the  Directors  is,  therefore,  Jhis  that  they 
allowed  the  advances  to  be  made  to  Mr. 
Labanti  on  the  strength  of  his  promise  to 
execute  the  mortgage  instead  of  the  mort- 
gage itself. 

;i|hThe  Bank  Company  was  formed  and  form- 
ally incorporated  without  any  Articles  of 
Association.  Thus  there  were  no  limitations 
to  and  restrictions  on  the  powers  of  the 
Directors  beyond  what  may  arise  out  of  their 
duties  imposed  generally  by  the  law  appli- 
cable to  the  case.  It  follows  that  lending 
money  on  the  security  of  the  contract  men- 
tioned above  was  not  ultra  vires  of  the 
Directors.  It  is  quite  clear  that  if  Mr.  Labanti 
had  executed  the  mortgage  which  he  had 
offered  to  do  the  present  application  could 
never  have  been  filed. 

The  foregoing  conclusions  and  observa- 
tions naturally  lead  to  the  consideration  of 
the  law  applicable  to  the  subject  in  hand. 
It  appears  to  me  to  be  settled  law  that 
y'Facts  which  show  imprudence  in  the  exer- 
cise of  powers  conferred  upon  Directors 
will  not  subject  them  to  personal  responsi- 
bility, the  imprudence  must  be  so  great  and 
manifest  as  to  amount  to  crassa  negligentia, 
as  for  example,  if  they  were  cognizant  of 
circumstances  of  such  $  character,  so  plain, 


[92 1.  0.  1926]  s.  c.  MITIA  n 

so  manifest,  and  so  simple  in  operation,  that 
no  men  with  any  ordinary  degree  of  prudence 
acting  on  their  own  behalf,  would  have 
entered  into  such  a  transaction  as  they  enter- 
ed into.  But  if  they  are  authorised  to  do 
an  act  in  itself  imprudent,  they  are  not  to 
be  held  responsible  for  the  consequences 
of  doing  it.  Nor  are  they  liable  for  mere 
errors  of  judgment.11  This  is  a  quotation 
from  the  Law  of  Banking  by  Heber  Hart. 
Eeference  is  made  therein  to  Overend  Gurney 
&  Co.  v.  Gibb  (1),  Hunt's  case  (2)  and 
London  Financial  Association  v.  Kelk  (3).  I 
have  read  the  reports  of  these  cases  and 
have  found  that  they  fully  support  the  view 
expressed  in  the  quotation  given  above.  The 
principle  was  again  stated  by  Lindley,  M.  K. 
in  the  case  of  Lagunas  Nitrate  Company  v. 
Lagunas  Syndicate  (4)  in  these  words  : 

"The  third  principle  is  that  the  Directors 
of  a  Company  acting  within  their  powers, 
and  with  reasonable  care,  and  honestly  in 
the  interest  of  the  Company,  are  not  per- 
sonally liable  for  losses  which  the  Company 
may  suffer  by  reason  of  their  mistakes  or 
errors  of  judgment".  lu  the  recent  case  of 
In  re  City  Equitable  Fire  Insurance  Com- 
pany Limited  (5),  Homer,  J.,  in  an  exhaustive 
judgment  if  I  may  respectfully  say  so,  ex- 
pounded the  law  bearing  on  the  subject 
under  consideration.  It  will  be  sufficient  to 
quote  from  the  head-note  of  the  report : 

"In  discharging  those  duties  a  Director  (a) 
must  act  honestly,  and  (b)  must  exercise 
such  degree  of  skill  and  diligence  as  would 
amount  to  the  reasonable  care  which  an 
ordinary  man  might  be  expected  to  take, 
n  the  circumstances,  on  his  own  behalf. 
But,  (c)  he  need  not  exhibit  in  the  perform- 
ance of  his  duties  a  greater  degree  of  skill 
than  '^nay  reasonably  be  expected  from  a 
person  of  his  knowledge  and  experience, 
in  other  words,  he  is  not  liable  for  mere 
errors  of  judgment;  (d)  h3  is  not  bound  to 
give  continuous  attention  to  the  affairs  of 
his  Company;  his  duties  are  of  an  intermit- 
tent nature  to  be  performed  at  periodical 
Board  meetings,  and  at  meetings  of  any  com- 
mittee to  which  he  is  appointed,  and  though 
not  bound  to  attend  all  such  meetings  he 
ought  to  attend  them  when  reasonably  able 
to  do  so;  and  (e)  in  respect  of  all  duties 

(1)  (1872)  5  E.  &  A.  App.  Gas  480J42  L.  J.  Oh.  67. 

(2)  (1668)  37  L.  J,  Oh,  278;  16  W.  K.  472. 

(3)  (1884)  26  Oh.  D.  107,  53  L.  J.  Oh.  1025;   50  L. 
T.  492. 

(4)  (1899)  2   Oh.  392,  at  p  422  68  L.  J,  Oh,  099;  48 
W.   R.  74;  81  L.  T,  334;  15  T.  L.  R.  436, 

(5)  (1925)  1  Cht.  407, 


NAWAB  ALI  KHAN. 


57 


which  having  regard  to  the  exigencies  of 
business  and  the  Articles  of  Association,  may 
properly  be  left  to  some  other  official,  he  is, 
in  the  absence  of  grounds  for  suspicion, 
justified  in  trusting  that  official  to  perform 
such  duties  honestly." 

By  applying  the  law  enunciated  in  the 
preceding  paragraph  to  the  conclusions 
of  fact  already  stated  I  must  hold  that  the 
liquidator's  application  in  respect  of  the 
charges  in  the  matter  of  over- drafts  to  Mr. 
Labanti  fails  as  against  the  Directors  as  a 
body. 

There  is,  however,  one  aspect  of  the  case 
arising  out  of  the  charge  in  relation  to  the 
over-drafts  mentioned  above  which  requires 
special  consideration,  we  have  seen  that 
amongst  the  creditors  of  Mr.  Labanti  who 
accepted  fixed  deposit  receipts  from  the 
Bank  in  lieu  of  their  claims  against  him  was 
Mr.  Jang  Bahadur  Sinha.  It  is  admitted 
that  on  the  dates  on  which  he  accepted 
those  receipts  he  was  one  of  the  Directors 
of  the  Company.  It  is  also  admitted  that 
he  cashed  three  of  those  receipts  out  of  the 
funds  of  the  Bank.  The  aggregate  amount 
of  the  money  which  he  thus  received  was 
the  sum  of  Ks.  7,844-5-3.  Obviously  he  can- 
not be  allowed  to  retain  this  money  to  the 
detriment  of  the  share-holders  and  the 
creditors  of  the  Company.  In  Alexander  v. 
Automatic  Telephone  Company  (6),  Lindley, 
M  R.  said; — 

"The  Court  of  Chancery  has  always  exacted 
from  Directors  the  observance  of  good  faith 
towards  their  share-holders  and  towards 
those  who  take  shares  from  the  Company 
and  become  co-adventurers  with  themselves 
and  others  who  may  join  them.  The  maxim 
"caveat  emptor"  has  no  application  to  such 
cases  and  Directors  who  so  use  their  powers 
as  to  obtain  benefits  for  themselves  at  the 
expense  of  the  share-holders,  without  in- 
forming them  of  the  fact,  cannot  retain 
those  benefits  and  must  account  for  them 
to  the  Company,  so  that  all  the  share-holders 
may  participate  in  them.  Gilbert's  case  (7) 
is  only  one  of  many  instances  illustrating 
this  principle.11 

Mr.  Jang  Bahadur  Sinha  has  argued  that 
he  was  not  a  Director  of  the  Company  when 
he  cashed  two  of  the  three  fixed  deposit 
receipts  on  the  7th  January  1922  and  the 
2nd  May  1922  and  consequently  he  is  not 
liable  for  the  sums  received  by  him  on  those 

(6)  (1900)  2  Oh.  56,  69  L.  J.  Oh.  428,  48  W.  R.  546; 
82  L.  T.  400;  16  T.  L.  K    339. 

(7)  (1870)  5  Oh.  559;  18  W.  R.  938, 


VITHOBA  V,  SADASHEO. 


two  dates.  But  he  was  a  Director  from  the 
beginning  up  to  the  12th  August  1921  when 
he  was  also  a  Managing  Director.  He  was 
again  a  Director  from  the  4th  October  1922 
to  the  14th  March  1923.  He  thus  stood  in  a 
fiduciary  relationship  to  the  Bank  when  he 
took  the  fixed  deposit  receipts  from  the 
Bank.  The  fact  that  he  was  not  a  Director 
on  the  7th  January  1922  and  the  2nd  May 
1922  did  not  relieve  him  of  the  obligations 
which  arose  out  of  his  fiduciary  relation- 
ship with  the  Company.  The  trust  con- 
tinued— see  the  observations  of  Lord  Chan- 
cellor Eldon  in  the  case  of  James  Ex  parte 
(8).  Mr.  Jang  Bahadur  Sinha  must,  therefore, 
pay  back  the  sum  of  Rs.7,844-5-3  to  the  liqui- 
dator. 

It  now  remains  to  dispose  of  the  charge 
relating  to  the  over-draft  allowed  to  the 
Upper  India  Investment  Limited.  The 
question  of  this  over- draft  does  not  seem 
to  have  been  ever  placed  before  the  meeting 
of  the  Director.  There  is  no  trace  of  it  in 
any  record  of  ithe  Company.  The  books  of 
the  Bank  merely  show  that  such  an  over- 
draft was  made.  Knowledge  of  it  is  not 
brought  home  to  the  Directors  as  a  body. 
On  the  principles  already  stated,  I  can- 
not hold  them  personally  liable  for  this  over- 
draft transaction. 

The  case  as  against  Lala  Jagmohan  Lai, 
however,  in  relation  to  this  charge  stands 
on  a  different  footing.  We  have  seen  that 
Lala  Jagmohan  Lai  was  the  Managing 
Director  of  the  Bank  during  the  whole  of 
the  period  when  the  over-draft  was  allowed. 
His  duties  were,  therefore,  of  a  higher 
standard  than  of  an  ordinary  Director.  There 
is  a  circumstance  in  this  case  which  induces 
me  to  hold  that  Lala  Jagmohan  Lai  was 
guilty  of  breach  of  trust  in  the  matter  of 
this  over-draft.  In  allowing  it  he  was  clear- 
ly impelled  by  motives  of  personal  gain. 
That  circumstance,  as  already  adverted  to, 
is  that  his  brother,  Balgobind,  with  whom, 
according  to  my  finding  Lala  Jagmohan 
Lai  is  joint  in  business,  was  one  of  the 
Directors  of  the  Upper  India  Investment. 
Lala  Jagmohan  Lai  allowed,  in  my  opinion, 
this  over-draft  to  be  made  to  the  Upper 
India  Investment  for  the  reason  that  his 
brother  was  a  Director  of  that  Company  and 
dishonestly  concealed  the  transaction  from 
the  Directors  of  the  Bank.  I  entirely  reject 
his  evidence  that  he  had  no  knowledge  of 
the  transaction.  I,  therefore,  hold  that  Lala 

18)  (1803)  7  K.  B,  56  at  p.  67;  8  Ves,  Jun.  337;  32 

j$.  R.  385, 


[92 1.  0. 1926J 

Jagmohan  Lai  is  liable  to  compensate  the 
Bank  for  the  loss  which  the  Bank  has  suffer- 
ed in  consequence  of  this  over-draft. 

The  plea  of  limitation  was  raised  by 
Thakur  Navvab  Ali  Khan.  The  liquidator's 
application  as  against  Thakur  Nawab  AH 
Khan  has  been  rejected  by  me  on  merits. 
It  is,  therefore  not,  necessary  to  decide  the 
plea  of  limitation. 

The  result  is  that  on  the  agreement  of  the 
parties  L  order  that  Mr.  L.  A.  Labanti  shall 
pay  the  sum  of  Rs.  76,593-15-4  with  inter- 
est at  6  per  cent,  per  annum  from  this  date 
till  the  date  of  payment  to  the  liquidator. 
I  also  order  Mr.  Jang  Bahadur  Sinha  to 
pay  to  the  liquidator  the  sum  of  Rs.  7,844-5-3 
with  interest  at  6  per  cent,  per  annum  from 
this  date  till  the  date  of  payment  and  also 
proportionate  costs.  I  further  order  that  Lala 
Jagmohan  Lai  shall  pay  to  the  liquidator 
the  sum  of  Rs.  28,927-5-0  with  interest  at  6 
per  cent,  per  annum  from  this  date  till  the 
date  of  payment  and  also  proportionate  costs. 

(October  13,  1925).— In  the  interests  of 
justice  and  with  the  consent  of  Mr.  Roy, 
Pleader  for  the  liquidator,  I  direct  that  the 
payments  under  this  decree  shall  first  be 
made  in  Court  and  the  liquidator  shall  be 
entitled  to  recover  them  on  furnishing 
security  to  the  satisfaction  of  the  Court. 
This  direction  shall  be  incorporated  in  the 
decree. 

z.  K,  Application  allowed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  178-B  OP  1924. 

July  11,  1825. 

Present:— Mr.  Findlay,  Officiating  J.  C. 
VITHOBA— PLAINTIFF— APPELLANT 

versus 
SADASHEO— DEFENDANT— RESPONDENT, 

Construction  of  Statute  --Principles  applicable-  -C.  P. 
Tenancy  Act  (XI  of  1808),  s  1^7— "Held  land  contimt- 
usly^  meaning  of—Forcible  dispossession  of  tenant 
by  landlm^d — A/o  acquiescence  by  tenant— Tenancy 
whether  determined 

It  is  an  elementary  principle  of  interpretation  that 
the  plain  intention  of  the  Legislature  as  expressed 
by  the  language  employed  is  to  be  accepted  and 
given  effect  to  [p  59,  col  2.J 

If  the  language  admits  of  more  than  one  construc- 
tion, the  meaning  is  to  be  sought  not  in  the  wide 
sea  of  speculation  and  surmise  but  from  such  con- 
jectures as  are  drawn  from  the  words  alone  or  some- 
thing contained  in  them  [ibid.] 

Rerigate  Rural  District  Council  v.  Sutton  District 
Water  Co.,  (1908)  99  L.  T,  W8;  7g  J.  J>.  301;  6  L.  G, 
R.936,  followed, 


[92 1.  0. 1926] 

The  words  "held  land  continuously"  as  used  in 
s.  47  of  the  0.  P.  Tenancy  Act  of  1898  imply  "held  as  a 
tenant,"  but  not  necessarily  "occupied  or  cultivated/1 
The  requirement  of  s.  47  is  not  actual  continuous 
possession  as  a  matter  of  fact  but  continuously  hold- 
ing as  a  tenant,  [p.  60,  col.  l.J 

If  a  tenant  is  ejected  under  a  decree  of  a  Court, 
there  is  a  lawful  ejectment  and  clear  break  in  the 
tenancy,  but  the  mere  fact  of  a  forcible  or  unlawful 
ejectment  does  not  necessarily  break  the  tenancy 
although  the  tenant  may  have  been  temporarily  out 
of  possession,  [ibid.] 

The  mere  ejectment  of  a  tenant  does  not  necessarily 
determine  his  tenancy  which  can  only  be  ended  in 
certain  express  ways,  suoh  as  those  enunciated  in  s. 
Ill  of  the  Transfer  of  Property  Act.  [p.  60,  col  2.1 

Rudrappa  v.  Narsingrao,  29  B.  213;  7  Bom  L.  R. 
12  and  Sofaoll  Khan  v.  Woopean  Khan,  9  W.  R.  123, 
followed. 

A  forcible  ejectment  of  a  tenant  by  the  landlord 
cannot  determine  the  tenancy  unless  there  has  been 
a  subsequent  acquiescence  in  the  ejectment  on  the 
part  of  the  tenant,  [p.  60,  col.  1.] 

Appeal  against  a  decree  of  the  Addi- 
tional District  Judge,  Amroati,  dated  the 
17th  March  1924,  in  Civil  Appeal  No.  145  of 
1923. 

Sir  H.  S.  Gour,  for  the  Appellant. 

Sir  B.  K.  Bose  and  Mr.  M.  R.  Bobde,  for 
the  Respondent. 

JUDGMENT.— The  plaintiff-appel- 
lant Vithoba  came  to  Court  alleging  that  he 
was  a  tenant  of  five  fields  in  Mouza  Inzasan 
(Yeotmal),  from  which  he  had  been  illegal- 
ly ejected  by  his  landlord  (defendant  JSo. 
1),  the  Izardar  of  the  village.  He  claimed 
that  under  s.  47  of  the  Berar  Alienated 
Villages  Tenancy  Law,  1921,  he  was  a  per- 
manent tenant  and  consequently  came  to 
Court  praying  for  a  declaration  to  this 
effect  and  for  a  decree  putting  him  in  pos- 
session. 

The  first  Court  held  that  the  suit  was 
not  maintainable,  the  plaintiff  having  been 
put  out  of  possession  on  the  1st  of  January 
1922  when  the  said  law  came  into  force. 
The  lower  Appellate  Court  also  dismissed 
the  present  appellant's  appeal  on  the  view — 
a  perfectly  correct  one  that  s.  74  could  not 
apply  to  the  case  as  the  ejectment  had 
taken  place  before  the  law  in  question 
came  into  force.  Similarly,  from  the  other 
points  of  view  the  Additional  District  Judge 
held  that  as  the  plaintiff  was  not  a  tenant  at 
the  commencement  of  the  law  within  the 
meaning  of  s.  47  (1),  his  suit  was  bound  to 
fail. 

The  question  involved  •  in  this  second 
appeal  is  not  free  from  difficulty.  There 
can  be  no  doubt  but  that  if  the  view  taken 
by  the  two  lower  Courts  be  correct,  a  most 
anomalous  state  of  matters  would  arise, 


VITHOBA  V.  SADA8HBO. 


59 


The  appeal,  I  may  say,  has  been  argued 
practically  on  the  basis  that  the  surrender 
has  not  been  proved  and  that  there  was,  in 
fact,  an  improper  ejectment  by  the  land- 
lord about  the  25th  of  May  iy2L  Even  so, 
the  contention  offered  on  behalf  of  the  re- 
spondents (defendants)  has  been  that  for 
the  plaintiff  to  be  declared  a  permanent 
tenant  under  s.  47  two  conditions  have  to 
be  fulfilled,  w>., 

(1)  that  he  was    holding  the  land  when 
the  law    came  into   force  on    the    1st    of 
January  1922,  and 

(2)  that  his  possession  went  back  to  before 
the  1st  of  June  1895. 

Admittedly,  the  second  condition  has 
been  fulfilled,  but  the  case  for  the  respond- 
ents has  been  that  as  the  plaintiff  was 
ejected  on  the  25th  of  May  1921,  he  cannot 
be  said  to  have  been  holding  the  land  on 
the  date  the  Berar  Alienated  Tenancy  Law 
of  1921  came  into  force. 

As  pointed  out  above,  a  curious  and 
anomalous  state  of  matters  would  arise  if 
the  respondents'  contention  in  this  case 
were  correct.  There  can  be  little  doubt, 
in  my  opinion,  but  that  the  intention  of  the 
f  earners  of  this  piece  of  legislation  was  to 
protect  precisely  such  cases  as  the  present 
one.  The  law,  no  doubt,  went  further 
than  that,  because  s.  75  provided  even  for 
the  re-instatement  of  a  tenant  who  had  been 
ejected  on  or  after  the  1st  of  January 
1916  under  adecree  ororder  of  a  Civil  Court. 
It  would  be  curious  indeed  if  the  intention 
of  the  Legislature  had  been  to  interfere  even 
in  the  latter  case  but  to  refrain  from  inter- 
fering in  the  case  of  an  illegal  ejectment 
by  the  landlord  himself  on  the  date  prior 
to  the  law  coming  into  force  but  after  the 
first  day  of  January  1916.  Whatever  the 
intention  of  the  Legislature  may  have  been, 
however,  in  this  connection  the  question  I 
have  to  decide  is  whether  on  a  reasonable 
construction  of  s.  47  the  plaintiff  can  fall 
thereunder.  It  is  an  elementary  principle 
of  interpretation  that  the  plain  intention 
of  the  Legislature  as  expressed  by  the 
language  employed  is  to  be  accepted  and 
given  effect  to.  If  it  admits  of  more  than 
one  construction  the  meaning  is  to  be  sought 
not  in  the  wide  sea  of  speculation  and 
surmise  but  from  such  conjectures  as  are 
drawn  from  the  words  alone  or  something 
contained  in  them  :  Rerigate  Rural  District 
Council  v.  Button  District  Water  Co.  (1). 

(1)  (1908)  99  L.  T.  168;  12  J.  P.  301;  6  L.  G,  R. 


60 


V1THOBA  V.  8ADASHEO. 


Turning  to  8.  47,  the  phraseology  at  once 
strikes  one  as  significant,  the  essential 
words  used  being:  "A  tenant,  .  .  .  who, 
at  the  commencement  of  this  law,  has 
either  by  himself  .  held  land  continuous- 
ly from  a  date  previous  to  the  first  day  of 
June  1895,".  The  decision  of  this  appeal 
really  depends  on  the  construction  to  be 
put  on  the  words  "has  held  land".  It  is 
significant  that  the  terminology  employed 
is  not  occupied  or  cultivated:  c/.4  in  this 
connection  ss.  8,  9  and  11  of  the  Agra 
Tenancy  Act,  and  c/.  Agarwala's  Agra 
Tenancy  Act  at  page  63  '  The  phrase,  to 
my  mind,  used  in  the  Act  seems  to  imply 
"has  held  as  a  tenant  but  is  not  necessarily 
occupying  or  cultivating/'  As  I  read  s.  47, 
the  requirement  thereof  is  not  actual  con- 
tinuous possession  as  a  matter  of  fact,  but 
continuously  holding  as  a  tenant.  If  a  ten- 
ant is  ejected  under  a  decree  of  a  Civil 
Court,  there  is  a  lawful  ejectment  and  a 
clear  break  in  the  tenancy.  But  on  the 
other  hand,  the  mere  fact  of  a  forcible  or 
unlawful  ejectment  does  not  necessarily 
break  the  tenancy  although  the  tenant  may 
have  been  temporarily  out  of  possession. 

Of  course,  if  there  were  evidence  that 
the  tenant  had  acquiesced  in  his  eject- 
ment or  had  failed  to  take  steps  to  recover 
possession,  then  there  would  have  been  on 
his  part  an  acquiescence  in  the  ejectment.  In 
the  present  case  this  cannot  be  predicated 
of  the  present  plaintiff- appellant  because 
it  is  clear  from  the  evidence :  c/.  Ex. 
P-7,  P-8  and  P-9,  that  he  had  presumably 
in  good  faith,  initially  pursued  a  wrong 
remedy  by  application  to  the  Revenue 
Officer  under  s.  74  (1),  which  clearly  did  not 
apply  in  the  circumstances  of  the  case.  The 
application  to  the  Revenue  Officer  was  only 
finally  disposed  of  on  the  23rd  of  July 
1923  and  meanwhile  the  plaintiff  had  filed 
the  present  suit  on  the  4th  of  April  192.'. 
There  is  not  the  slightest  ground,  therefore, 
for  holding  that  there  was  any  acquiescence 
on  the  part  of  the  tenant  in  his  ejectment. 
I  may  say  that  there  had  been,  in  fact,  two 
applications  to  the  Revenue  Officers ;  the 
first  on  22nd  November  1921  (c/.  Ex.  P-8) 
which  was  rejected  on  the  1st  of  June  1922 
while  the  final  application  to  the  Special 
Revenue  Officer  was  dismissed,  as  already 
said,  on  the  23rd  of  July  1923  (c/.  P-9). 

Looking  at  the  question  more  general- 
ly, 1  am  unable  to  see  that,  in  the  cir- 
cumstances of  the  present  case,  the  tenancy 
can  be  said  to  have  terminated.  The 


[92  I.  0.  1926] 

mere  ejectment  of  a  tenant  does  not  neces- 
sarily determine  his  tenancy  which  can 
only  be  ended  in  certain  express  ways  :  c/., 
in  this  connections,  111  of  the  Transfer 
of  Property  Act,  and  c/.,  also  Rudrappa  v. 
Narsingrao  (2)  and  Sofaoll  Khan  v.  Woo- 
pean  Khan  (3).  The  surrender  in  this  case 
has  not  been  proved  and  the  fact  that  there 
was  a  forcible  ejectment  has  practically 
been  admitted.  In  such  circumstances  the 
landlord  was  guilty  of  trespass  and  such  an 
act  could  not,  in  my  opinion,  determine  the 
tenancy,  unless  there  was  any  evidence  of 
subsequent  acquiescence  therein  on.  the 
part  of  the  plaintiff.  In  the  present  case, 
as  I  have  shown,  all  the  evidence  is  that 
the  plaintiff  has  been  having  vigorous  re- 
course to  any  and  every  relief  which  was, 
in  his  opinin,  open  to  him.  The  present 
suit  was  filed  within  two  years  of  the  eject- 
ment (c/.  P.  76  of  the  Law)  and  it  was, 
therefore,  within  time.  My  reading  of  s.  47, 
sub-s.  (1),  therefore,  is  that  the  words  "held 
land  continuously11  have  been  deliberately 
used  as  opposed  to  "cultivated  or  possess- 
ed11 with  the  express  intention  that  the 
section  would  still  cover  a  case  like  the 
present,  where  there  has  been  an  illegal 
disturbance  of  possession,  in  which  the 
tenant  has  not  acquiesced.  I  am  unable  to 
see  that  the  forcible  dispossession,  which  oc- 
curred, necessarily  determined  the  ^tenancy 
being  in  existence,  I  find  that  the  plaint- 
iff appellant  is  entitled  to  be  declared  a 
permanent  tenant  of  the  fields  in  suit. 

The  judgment  and  decree  of  the  lower 
Appellate  Court  is,  therefore,  ^ reversed 
and  in  its  place  a  decree  will  issue  de- 
claring the  plaintiff-appellant  to  be  a 
permanent  tenant  of  the  fields  in  suit  and 
ordering  him  to  be  put  in  possession  there- 
of.  The  defendants-respondents  will  bear 
the  plaintiff-appellant's  costs  as  well  as 
their  own  in  all  three  Courts. 

N.  H.  Decree  reversed. 

(2)  29  B.  213;  7  Bom.  I,.  E    12 

(3)  9  W.  R    123. 


fltt  I.  0. 19 

MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEALS  Nos.  543  AND  1067 

OF  1922. 

March  24,  1925. 
Present:— Mr.  Justice  Phillips. 

IN  8.  A.  No.  543  OF  1922. 

BANJOISI  NARA8AMMA— DEFENDANT 

— APPELLANT 

versus 

BANJOISI  SARASAMMAN  AND  ANOTHER 
— DEFENDANTS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908},  0.  XXI, 
rr.  07,  98,  103- Specific  Belief  Act  (I  of  1877),  s  9— 
Decree  fur  possession  -  Execution  of  decree— Obstruc- 
tion— Order  removing  obstruction—Suit  to  set  aside 
order — Limitation —Partition  suit-  Practice —Shares 
of  all  parties,  determination  of,  whether  necessary 

There  is  nothing  in  r  97  of  O  XXI  of  the  C  P  C 
which  prevents  its  beuiff  applicable  to  a  decree  for 
possession  passed  under  s  9  of  the  {Specific  Kchcf 
Act.  Such  a  decree  does  not  purport  to  decide  any 
question  of  title  but  it  declares  the  plaintiff's  posses- 
sory right  and  is  a  conclusive  determination  of  that 
right.  Where,  therefore,  obstruction  is  offered  to  the 
delivery  of  possession  in  execution  of  such  a  decree, 
an  order  removing  the  obstruction  falls  within  the 
purview  of  r  98  of  O.  XXI,  and  is  conclusive  unless 
set  aside  in  a  suit  brought  in  accordance  with  the 
provisions  of  r  103  of  0  XXI  [p  61,  col  2;  p.  62,  c*ol.  1  ] 

Obiter  dictum — For  the  application  of  r.  97  of  O 
XXI  of  the  C  P  C.  it  is  not  necessary  that  the  person 
making  the  obstruction  should  be  physically  present 
at  the  spot  [p  G2,  col  1  ] 

Ordinarily  in  partition  suits  it  is  the  practice  to 
declare  the  shares  of  all  the  parties  to  the  suit  and 
to  give  a  decree  accordingly.  This  is  to  avoid  multi- 
plicity of  litigation,  and  that  is  the  reason  why  all 
the  sharers  have  to  be  made  parties  in  such  suits  It 
is  not,  however,  incumbent  upon  the  Court  in  all 
circumstances  to  give  a  decree  in  favour  of  all  the 
co-sharers  in  a  partition  suit  [ibid  } 

Where  in  a  partition  suit  the  plaintiff's  claim  to  a 
specific  share  in  the  property  in  dispute  is  negatived, 
and  there  is  no  issue  for  determination  of  the  shares 
of  the  defendants  inter  se,  the  shares  of  the  defend- 
ants inter  se  should  not  be  determined  in  the  suit 
[p.  62,  col.  2.] 

Second  appeal  against  a  decree  of  the 
District  Court,  Bellary,  in  A.  S.  No.  94 
of  1921,  preferred  against  that  of  the  Court 
of  the  District  Munsif,  Bellary,  in  0.  8. 
No.  159  of  1920. 

Messrs.  S.  Doraswamy  Iyer  and  A.  Raghu- 
natha  Rao,  for  the  Appellant. 

Mr.  B.  Somayya,  for  the  Respondents. 

JUDGMENT. 

IN  S.  A.  No.  1067  OF  1922. 
The  plaintiff  and  defendants  Nos.  1  and 
2  are  sisters,  and  plaintiff  brings  this 
suit  to  recover  her  one-third  share  in 
the  suit  house  which  has  been  found 
to  belong  originally  to  plaintiff's  father. 
In  1918  the  1st  defendant  who  appears 
to  have  been  in  possession  of  the  suit 
house  brought  a  suit  under  s,  9  of 


BANJOISI  NARASAMMA  V.  BANJOISI  SABA8AMMAN. 


61 


Specific  Relief  Act  against  her  sister  the 
2nd  defendant.  In  executing  the  decree 
she  obtained,  obstruction  was  caused  and 
she  came  into  Court  with  an  application 
under  O.  XXI,  r.  97,  C.  P.  C.  in  which  the 
plaintiff  and  her  alleged  tenant  were  counter- 
petitioners.  An  enquiry  was  held  and 
finally  an  order  was  passed  in  E.  A.  No.  599 
of  1918  which  runs  as  follows  :  — 

"The  obstructor  did  not  intervene  in  that 
suit.  Now  she  has  been  evidently  set  up 
by  her  defeated  sister.  Remove  obstruction 
arid  deliver."  The  obstructor  can  only 
refer  to  the  plaintiff,  the  second  counter- 
petitioner,  and  by  the  use  of  the  word  "ob- 
structor" the  District  Munsif  must  be  deem- 
ed to  have  found  that  she  was  the  person 
who  caused  obstruction,  otherwise  the  word 
would  be  meaningless.  It  would  appear, 
therefore,  from  his  order  that  he  held  that 
the  plaintiff  caused  obstruction  and  he 
passed  an  order  which  would  appear  to  be 
under  O.  XXI,  r.  98.  As  the  plaintiff  has 
failed  to  bring  her  suit  within  one  year 
from  the  date  of  that  order,  the  lower  Ap- 
pellate Court  has  dismissed  it  as  barred  by 
limitation. 

In  appeal  it  is  urged  that  the  order 
directing  removal  of  obstruction  was  not 
passed,  under  O.  XXI,  r.  98  because  the 
plaintiff  did  not  actually  obstruct  but  ob- 
structed through  her  tenant  who  was  the 
first  counter-petitioner  in  the  application. 
There  is  no  evidence  to  support  the  conten- 
tion. I  think  in  the  face  of  the  order 
defining  the  plaintiff  as  the  obstructor,  it  is 
unnecessary  to  consider  that  question  here. 

It  was  then  contended  that  the  order 
could  not  have  been  passed  under  O.  XXI, 
r.  i)8  because  the  decree  passed  under  s.  9 
of  the  Specific  Relief  Act  is  not  a  decree  for 
possession  within  the  meaning  of  r.  97.  Reli- 
ance is  placed  upon  an  old  case  Gobind  Chun- 
der  Bagdee  v.  Gobind  Ghose  Mundul  (1)  but 
that  case  was  not  one  under  the  Specific  Re- 
lief Act  nor  under  the  present  C.  P.  C.  I  can 
see  nothing  in  the  rule  (r.  97)  which  pre- 
vents its  being  applicable  to  a  decree  for 
possession  under  the  Specific  Relief  Act. 
That  decree  for  possession  undoubtedly 
declared  the  plaintiff's  possessory  right.  It 
did  not  purport  to  decide  the  title,  but  it 
confirmed  the  lesser  right  in  the  plaintiff 
and  it  was  a  conclusive  determination  of 
that  right.  I  see  no  reason  why  O.  XXI, 
should  not  be  applied  in  this  case.  Conse- 

(l)  7  W.  R,  171, 


8HEOSAHA1  V.  RAMK118HNA. 


quently  it  must  be  held  that  the  order  of  the 
District  Munsif  was  passed  under  r.  98  and, 
therefore,  the  plaintiff's  present  suit  is  bar- 
red by  limitation. 

There  are  observations  in  Mancharam  v. 
Fakirchand  (2)  and  in  T.  C.  Bose  v.  R.  0. 
Chowdury  (3)  which  go  to  show  that 
the  person  obstructing  under  O.  XXI, 
r.  97  must  be  physically  present  on  the 
spot.  In  neither  of  the  cases  was  this 
observation  necessary  for  the  determina- 
tion of  the  suit,  and  in  one  case  there  was 
a  conflict  of  opinion.  Reading  0.  XXI, 
rr.  97  and  98,  etc.,  we  find  no  reference  to  the 
present  obstructor,  but  only  reference  to  the 
person  obstructing  or  resisting  execution. 
With  ail  respect,  therefore,  if  those  two 
cases  intended  to  lay  down  that  0.  XXI, 
r.  97  is  inapplicable  to  a  case  in  which  the 
obstructor  was  not  actually  present,  I  think 
it  goes  too  far  but,  in  view  of  the  finding 
in  this  case  that  the  plaintiff  did  obstruct, 
it  is  not  really  necessary  to  determine  the 
question. 

The  plaintiff's  appeal  (8.  A.  No.  1067  of 
1922),  therefore  fails  and  is  dismissed  with 
costs  of  the  first  defendant. 

T  C.  Bose  v.  0.  R.  Chowdury  (3). 
IN  8.  A.  No.  543  OF  1922. 

The  first  defendant  also  filed  an  appeal 
against  the  portion  of  the  decree  which 
declares  that  the  second  defendant  is 
entitled  to  one-third  share  in  the  suit  pro- 
perty. Ordinarily  in  partition  suits,  it  is 
the  practice  to  declare  the  shares  of  all  the 
parties  to  the  suit  and  to  give  a  decree 
accordingly.  This  is  to  avoid  multiplicity 
of  litigation  and  that  is  the  reason  why  all 
the  sharers  have  to  be  made  parties  in  such 
suits,  but  I  do  not  think  that  it  is  laid 
anywhere  that  in  all  circumstances  must  a 
decree  be  given  in  favour  of  all  the  co- 
sharers.  Ashidbhai  v.  Abdulla  (4)  is  a  clear 
authority  to  the  contrary ;  but  reliance  is 
placed  on  a  decision  of  this  Court  in 
Second  Appeal  No.  1493  of  1920.  The  point 
was  not  really  considered  in  that  case  but 
the  suit  was  remanded  for  fresh  disposal 
on  the  ground  that  the  parties  to  the  suit 
were  entitled  to  obtain  their  shares  although 
they  were  not  members  of  a  joint  Hindu 
family.  The  question  whether  the  circum- 
stances must  justify  a  refusal  of  such 
relief  to  the  defendant  was  not  considered 

(2)  25  B.  478;  3  Bom.  L.  R   58 

(3)  82  Ind.  Gas  865;  (1924)  A.  I.  R.  (R.)  261;  3  Bur. 
KJ.  71. 

(4^1  31  B.  271;  8  Bom.  L.  R.  758. 


[92  L  0. 1926] 

at  all.  In  the  present  case  the  plaintiffs 
claim  to  one-third  share  has  been  dis- 
missed and  apparently  therearenow  only  two 
other  sharers  entitled  to  the  property  and  it 
is  not  clear  what  the  respective  shares  are. 
The  second  defendant  in  filing  a  written 
statement  only  claimed  one-third  share 
on  the  assumption  that  one-third  of  the 
property  would  be  allotted  to  the  plaintiff. 
That  not  having  been  done,  the  right  of 
the  other  two  sharers  may  be  altered.  I 
think  therefore  that  there  should  be  no 
decision  of  this  question  in  this  suit  because 
the  question  has  not  been  put  in  issue  and 
there  has  been  no  determination  of  the 
share  of  the  two  remaining  sisters.  I 
would,  therefore,  allow  the  appeal  and  set 
aside  that  portion  of  the  decree  leaving  the 
second  defendant  to  establish  her  right  by 
a  fresh  suit  if  so  desired. 

In  the  circumstances  I  make  no  order  as 
to  costs  in  this  appeal  (Second  Appeal 
No.  543  of  1922). 

v.  N.  v.  Appeal  allowed, 

z.  K. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  2  OP  1925. 

October  2,  1925. 

Present :— Mr.  Hallifax,  A.  J.  0. 
SHEOSAHAI— PLAINTIFF— APPELLANT 

versus 

RAMKRI8HNA  AND  ANOTHER— 
DEFENDANTS — RESPONDENTS. 

Partition — Reference  to  arbitration — Parties,  joint 
possession  of — Prayer  for  leaving  out  portion  of  pro- 
perty, effect  of— C.  P  Tenancy  Act  (I  of  1920),  ss  2 
(11),  &,  Sch.  17,  Art.  1 — Absolute  occupancy  tenant — 
Suit  for  possession—Limitation. 

A  reference  to  arbitration  for  partition  of  property 
amounts  to  letting  in  of  all  parties  to  joint  posses- 
sion of  the  property  to  be  partitioned. 

A  pleading  in  a  reference  to  arbitration  for  parti- 
tion that  a  certain  part  of  the  property  must, 
because  of  a  previous  decision  or  for  any  other  reason, 
be  allotted  to  one  share  or  the  other,  or  must  be  left 
out  of  consideration  in  the  division,  can  scarcely  be 
called  a  withdrawal  of  that  part  of  the  property  from 
the  scope  of  the  arbitration.  At  the  most  it  is  an 
attempt  to  withdraw  that  property  from  the  scope  of 
the  arbitration,  that  is  to  say,  an  admission  that  it 
is  included  in  it. 

06 iter.— Section  2  (11)  and  s.  4  of  the  0.  P.  Tenancy 
Act  of  1920  make  it  clear  that  the  word  "tenant"  in 
Art.  1  of  Sch.  II  does  include  an  absolute  occupancy 
tenant  and  the  limitation  for  a  suit  by  such  a  tenant 
for  possession  of  his  holding  is  two  years  and  not 
twelve  years  from  the  date  of  such,  dispossession  or 
exclusion  from  possession, 


prov- 
Shio- 


[92  I.  0. 1926] 

Appeal  against  a  decree  of  the  Additional 
District  Judge,  Bilaspur,  dated  the  25th 
September  1924,  in  Civil  Appeal  No.  105  of 
1924. 

Mr.  M.  R.  Bobde,  for  the  Appellant. 

Mr.  G.  R.  Deo,  for  the  Respondents. 

JUDGMENT.— It  has  been  held 
ed  in  the  lower  Appellate  Court  that 
shankar  joined  in  referring  the  dispute  in 
regard  to  the  division  of  the  family  property 
to  the  Mahasabha  in  1921.  That  was  a 
letting  in  of  the  plaintiff  Shiosahai  to  joint 
possession  of  all  the  property  to  be  divided, 
which  joint  possession  continued  at  least 
till  the  delegates  of  the  Mahasabha  made 
their  award  on  the  3rd  of  February  1922. 

The  award  has  been  held  to  be  invalid 
for  various  reasons,  but  that  does  not  matter. 
While  the  arbitrators  were  deliberating 
with  the  consent  of  Shioshankar  about 
what  portion  of  certain  property  was  to  be 
allotted  to  Shiosahai  and  what  was  nut, 
Shiosahai  cannot  be  said  to  have  been  ex- 
cluded from  possession  of  any  part  of  that 
property,  because  Shioshankar  was  admit- 
ting all  along  that  that  part  of  it  might  be 
allotted  to  him.  As  the  award  was  given 
on  the  3rd  of  February  1922  and  Shiosahai 
filed  his  suit  on  the  1st  of  September  1923 
well  within  two  years,  it  cannot  be  held 
barred  by  time  under  Art.  1  of  Sch.  II  of  the 
Tenancy  Act,  1920,  unless  the  particular  piece 
of  property  in  dispute,  the  absolute  occu- 
pancy holding,  can  be  shown  to  have  been  ex- 
cluded from  the  property  with  whirh  the 
delegates  of  the  Mahasabha  had  to  deal 

The  only  evidence  of  its  exclusion, 
which  it  was  for  the  plaintiffs  to  prove,  is 
to  be  found  in  a  written  pleading  put  in 
by  Shioshankar  before  the  arbitrators  on 
the  30th  of  May  1921  in  which  he  urged  that 
the  matter  of  these  fields  and  of  some  mango 
trees  and  a  certain  house  had  already  been 
decided  (tasfiya  ho  chuka  hai),  though  the 
matter  of  certain  other  fields  had  not.  A 
pleading  in  a  partition  suit  that,  a  certain 
part  of  the  property  must,  because  cf  a 
previous  decision  or  for  any  other  reason, 
be  allotted  to  one  share  or  the  other,  or 
must  be  left  out  of  consideration  in  the 
division,  can  scarcely  be  called  a  withdrawal 
of  that  part  of  the  property  from  the  scope 
of  the  suit,  At  the  most  it  is  an  attempt  to 
withdraw  that  property  from  the  scope  of 
the  suit,  that  is  to  say,  an  admission  that  it 
is  included  in  it. 

It    is    further  pleaded  that  the    suit  is 
within  time  for  the  reason  that  the  word 


NAUNlHAL  SINGS  V.  ALtCE  GEORGINA  SKINNER. 


tenant  in  Art  1  of  Sch.  II  of  the  Tenancy 
Act,  1920  does  not  include  an  absolute 
occupancy  tenant,  and  that  the  limitation 
for  a  suit  by  such  a  tenant  for  possession 
of  his  holding  is  twelve  years.  In  view  of 
the  ruling  in  Ragho  v.  Sadoo  (1)  which  on 
all  points  except  that  of  limitation  is  con- 
firmed by  the  Tenaacy  Act  of  1920,  lam 
strongly  inclined  to  the  opinion  that  it  was 
the  intention  of  the  Legislature  to  make  the 
limitation  for  a  suit  by  an  absolute  occu- 
pancy tenant  twelve  years.  But  it  is 
beyond  doubt  that  if  that  intention  existed 
it  has  not  been  expressed  in  the  Act.  Sec- 
tion 2  (11)  and  s.  4  of  that  Act  make  it  clear 
that  the  word  tenant  in  Art.  1  of  Sch.  II 
does  include  an  absolute  occupancy  tenant. 
The  question  does  not,  however,  arise,  as  the 
suit  was  brought  within  two  years  of  the 
exclusion  from  possession. 

The  decree  of  the  lower  Appellate  Court 
must  be  set  aside  and  that  of  the  first 
Court  restored.  That,  however,  would  entail 
the  making  of  a  fresh  division  of  these 
fields,  which  was  done  in  1922.  The  parties 
have  agreed,  therefore,  that  that  partition  of 
1922  shall  hold  good  and  each  party  shall 
take  the  half  then  allotted  to  it.  The  decree 
will  accordingly  order  that  the  defendants 
are  to  hand  over  to  the  plaintiff  the  half  of 
the  fields  in  dispute  that  was  allotted  to  his 
share  in  1922,  in  the  arbitration  that  began 
in  1921.  All  the  plaintiffs  costs  in  all  three 
Courts  will  be  paid  by  the  defendants.  The 
Pleader's  fee  in  this  Court  will  be  fifty 
rupees.  Decree  set  aside. 

N.  H. 

(1)  5  Iiid.  Cas.  428;  6  N.  L   R.  6 


ALLAHABAD  HIGH  COURT. 

FIKST  CIVIL  APPEALS  Nos.  86  AND  494  OF  1922. 

March  27,  1925. 
Present : — Mr.  Justice  Lindsay  and 

Mr.  Justice  Kanhaiya  Lai. 
NAUN1HAL  SINGH  AND  OTHERS— 
DEFENDANTS — APPELLANTS 

versus 

ALICE  QEORGINA  SKINNER  AND 
ANOTHER — PLAINTIFFS— RBSPONDENTS. 

Limitation  Act  (IX  of  W08)t  Sch.  7,  Arts.  131>,   1^0t 
11$— Adverse  possession  during  tenure  of  life~tena,nt 


NAUtflHAL  SltoGH  V.  ALICE  GEO&GINA  SKINNER.  [92  I.  0.  1926] 


—  Remainderman,  whether  affected — Mortgage— Trans- 
fer by   mortgagee — Redemption  suit   by   remainderman 

—  Limitation. 

Article  134  of  S-jh,  I  to  the  Limitation  Act  deals 
with  transfers  of  property  which  has  been  mortgaged. 
The  Article  does  not  specifically  require  that  the 
property  should  have  been  mortgaged  with  posses- 
sion The  suits  referred  to  in  the  Article  being, 
however,  suits  for  possession,  it  must  be  assumed  that 
when  suck  a  suit  is  brought  the  defendant  transferee 
is  in  possession  Therefore,  the  transfer  which  he 
has  taken  must  have  been  one  which  placed  him  in 
possession  and  consequently  where  the  transferor  is 
a  mortgagee  he  must  have  been  in  possession  of  the 
mortgaged  property  at  the  time  he  made  the  transfer 
It  is  not,  however,  necessary  that  the  possession 
which  the  transferor  had  at  the  time  of  the  transfer 
must  have  been  acquired  under  the  mortgage  origin- 
ally made  in  his  favour  Kven  if  the  mortgage  was 
a  simple  mortgage  and  the  mortgagee  subsequently 
gets  possession  of  the  mortgaged  property  otherwise, 
as  for  example,  by  purchase  in  execution  of  a  simple 
money-decree  obtained  u  gainst  the  mortgagor  by 
another  creditor,  the  Article  will  still  apply  if  it  is 
established  that  at  the  time  the  transfer  is  made  the 
mortgagee  was  in  possession,  no  matter  under  what 
title.  The  Article  is  designed  for  the  protection  of  a 
transferee  who  has  been  led  by  a  moitgagec  to  believe 
that  he  is  acquiring  not  merely  mortgagee  rights  but 
a  full  proprietary  title  [p  6S,  col  2;  p  69,  col.  1  ] 

No  act  of  a  life-tenant  can  bo  binding  upon  the 
remainderman  who  does  not  claim,  under  the  life- 
tenant  but  under  an  independent  title  (p  71,  col.  2  i 

Per  Kanhaiya  Lai,  J—  Under  Art.  140  of  Sch.  I, 
to  the  Limitation  Act,  a  remainderman  or  devise*3  can 
sue  for  possession  of  immoveablc  property  devised  to 
him  within  twelve  years  from  the  d?te  when  his  estate 
falls  into  possession  [p  73,  col  1  ] 

Once  a  person  enters  into  possession  of  property  as 
a  tenant  for  life  he  cannot  hold  adversely  to  the  re- 
mainderman Similarly  adverse  possession  for  any 
length  of  time  against  a  tenant  for  life  is  ineffectual 
against  the  reversioner  or  remainderman  whose  right 
to  possession  only  accrues  on  the  death  of  the  tenant 
for  life,  [ibid] 

Article  134  of  Sch.  1  to  the  Limitation  Act  allows 
only  a  period  of  12  years  for  a  suit  to  recover  posses- 
sion of  immoveable  property  mortgaged  and  sub- 
sequently transferred  by  the  mortgagee  for  a  valuable 
consideration  to  be  computed  from  the  date  of  such 
transfer.  It  applies  to  cases  where  the  mortgagee 
purports  to  transfer  what  he  is  not  competent  to 
alienate,  that  is  an  interest  greater  than  that  of  a 
mortgagee,  and  it  presupposes  a  mortgage  with  pos- 
session or  followed  by  possession  as  a  necessary  in- 
cident or  ingredient  of  it  because  a  mortgagee  who 
is  not  in  possession  cannot  transfer  possession  to 
another  or  give  what  he  does  not  possess.  If  the 
mortgagee  acquires  possession  in  some  other  capacity, 
the  transfer  of  possession  will  be  deemed  to  have  been 
made  in  the  capacity  in  which  it  was  (rightly  or 
wrongly)  acquired  and  such  acquisition  cannot  be 
attributed  to  the  mortgage,  where  the  mortgage  itself 
is  a  simple  mortgage  or  a  mortgage  not  entitling  the 
mortgagee  to  possession  by  virtue  of  its  incidents  or 
terms  [p  73,  cols.  1  &  2.] 

The  object  of  Art.  134  is  to  protect  transferees  for 
value  who  have  purchased  an  interest  larger  than  that 
possessed  by  the  transferor  and  have  been  allowed  to 
remain  in  possession  and  enjoyment  of  such  larger 
interest  for  a  period  of  more  than  12  years.  In  the 
matter  of  mortgaged  properties  so  transferred,  it  con- 


trols Art.  148  in  the  same  way  as  it  controls  Art.  140 
If  the  mortgaged  property  is  in  the  possession,  not  o 
the  mortgagee,  but  in  that  of  a  transferee  from  him 
who  claims  to  have  purchased  a  larger  interest  therein 
for  consideration,  then  neither  Art.  148  nor  Art.  140 
of  Sch.  I  to  the  Limitation  Act  will  enable  the  mort- 
gagor or  a  reversioner  or  a  remainderman  to  redeem 
the  property  after  tho  possession  of  the  transferee  has 
lasted  for  more  than  12  years.  A  remainderman  who 
sues  for  the  redemption  of  a  mortgage  cannot  escape 
the  consequences  which  Art  134  prescribes,  [p  74, 
col.  1  ] 

First  appeals  from  a  decision  of  the  Sub- 
Judge,  Muzaffarngar  at  Meerut,  dated  the 
20th  of  January  1923. 

Munshi  Girdhari  Lai  Agarwala  and 
MunshiBhagwatiShankar,  for  the  Appellants. 

Messrs.  5.  E.  O'Connor,  Nehal  Chand, 
Babu  La  lit  Mohan  Banerjee  and  Pandit 
Naramadeshwar  Prasad  Upadhiya,  for  the 
Respondents. 

JUDGMENT. 

Lindsay,  J. — Both  these  appeals  arise 
out  of  a  suit  for  redemption  brought  by 
Alice  Georgina  Skinner  in  the  Court  of 
the  Subordinate  Judge.  This  lady  died 
after  the  decision  in  the  Court  below  and 
is  now  represented  by  her  executor,  Mr. 
J.  R.  R.  Skinner. 

The  suit  was  filed  on  the  llth  May  1920 
and  the  mortgage  of  which  redemption  was 
sought  was  .executed  by  the  plaintiff's  father 
Thomas  Skinner,  on  the  1st  September 
1863,  to  secure  a  loan  of  Rs.  50,000  which 
he  took  from  a  firm  of  money-lenders, 
Lakhmi  Chand  and  Gobind  Das,  who  were 
popularly  known  as  the  Seths  of  Muttra. 
Since  the  date  of  the  mortgage  the  mort- 
gaged property  has  passed  into  the  hands 
of  many  persons,  the  result  being  that  the 
plaintiff  found  it  necessary  to  implead  over 
80  defendants.  The  learned  Subordinate 
Judge  has  passed  a  preliminary  decree  for 
redemption,  dated  the  31st  January  1923,  by 
which  he  directs  the  plaintiff  to  pay,  a  sum 
of  Rs.  1,09,641-11-8. 

The  suit  was  not  decreed  in  full,  for  the 
Subordinate  Judge  was  of  opinion  that  the 
plaintiff  was  not  entitled  to  recover  posses- 
sion of  i  .  •:.;  ,:.  one  of  the  items  of 
property  mortgaged.  And  as  regards  an- 
other item  named  Daula  Rajpura  which  at 
the  time  the  suit  was  brought  was  in  the 
possession  of  the  Nawab  of  Pahasu,  the  Sub- 
ordinate Judge  declared  that  the  suit  had 
abated.  The  Nawab  died  during  the  pend- 
ency of  the  suit  and  the  plaintiff  failed  to 
make  his  legal  representative  a  party  to  the 
suit  within  the  time  limited  by  law. 

In  the  Appeal  No.  86  of  1924  the  memo 


NAUNIHAL  SINOH  U,  ALICE  QEOROINA  8RINN&R. 


[92  1  0. 1926J 

Tandum  of  appeal  contains  the  names  of 
34  appellants  but  at  the  hearing  only  two  of 
these  have  been  represented  before  us, 
namely, Kunwar  Naunihal  Singh  and  Nawab 
Mukarram  Ali  Khan  who  is  the  successor- 
in-interest  of  the  Nawab  of  Pahasu  above 
mentioned.  Mr.  Girdhari  Lai  Agarwala 
has  filed  vahalatnamas  which  authorize 
him  to  appear  on  behalf  of  these  two 
appellants,  he  has  no  authority  to  act  for 
the  other  appellants  and  so  in  disposing 
of  F.  A.  No.  b6  of  1924  it  is  necessary  to 
consider  only  the  cases  of  these  two 
persons. 

Mr.  Girdhari  Lai  also  represents  the 
appellants  in  F.  A.  No.  494  of  1922  which 
has  been  heard  along  with  F.  A.  No.  86 
of  1924. 

It  may  be  mentioned  here  that  the  pe- 
culiar and  irregular  procedure  adopted  by 
the  Subordinate  Judge  in  disposing  of 
the  suit  has  created  considerable  embarrass- 
ment. 

On  the  23rd  of  February  1922  after  having 
disposed  of  the  main  issues  in  the  case,  he 
passed  an  order  directing  accounts  to  be 
taken  in  order  to  enable  him  to  ascertain 
the  sum  payable  by  the  plaintiff  for  redemp- 
tion of  the  mortgage.  There  could,  of  course, 
be  no  objection  to  his  passing  an  interlocu- 
tory order  for  the  taking  of  accounts  but  he 
embodied  this  order  in  the  form  of  a 
decree  which  is  printed  at  pages  35  et  seq  of 
the  record.  Subsequently,  after  Baking  an 
account,  he  passed  a  preliminary  decree 
for  redemption  on  the  20th  January  1923, 
(See  pages  46  et  seq  of  the  record).  The  law 
does  not  contemplate  procedure  of  this  sort 
in  a  suit  for  redemption.  The  learned  Sub- 
ordinate Judge  seems  to  have  thought  he 
was  dealing  with  a  suit  for  account  in  which 
it  was  his  duty  to  pass  a  preliminary  decree 
in  accordance  with  the  provisions  of  O.  XX, 
r.  13,  of  the  C.  P.  C.  but  that  was  not  so. 

This  irregularity  was  brought  to  the 
notice  of  another  Bench  of  this  Court  which 
decided  that  the  two  decrees  drawn  up  in 
the  Court  below  should  be  dealt  with  as  if 
they  constituted  one  decree  only,  namely,  a 
preliminary  decree  for  redemption,  and  ?o 
wo  have  treated  these  two  appeals  accord- 
ingly. 

I  proceed  now  to  mention  the  questions 
which  arise  here  for  decision  in  Appeal 
No.  86  of  1924  as  between  the  plaintiff- re- 
spondent and  the  two  appellants  on  -w  hose 
behalf  the  appeal  has  been  argued  and  I 
take  up  first  the  case  of  Kunwar  Naunihal 
5 


65 


Hugh.  This  defendant,  when  the  suit  waa 
brought,  waft  in  possession  of  five  items  of 
the  mortgaged  property  which  the  plaintiff 
was  seeking  to  recover.  They  are  items  Nps. 
1  to  5  in  the  Sch.  A  attached  to  the  plaint 
and  are  called  Gangola,  Salehpur,  Neknam- 
pur,  Ghori  Bachhera  and  Sunphera. 

The  defences  raised  by   Naunihal  Singh 
were  ; 

(1)  that  the  plaintiff  had  no  title  to  main- 
tain the  suit  for  redemption  ; 

(2)  that  these  five  villages  had  since  the 
year  1872  been  in   the  adverse  possession 
of  him  and  his  predecessor-in-title  ; 

(3)  that  he  had  purchased    these  villages 
in   good  faith    and   for  a  consideration  of 
Us.  1,77,000  from  the  Nawab  of  Rampur  and 
was  protected  by  s.   41   of  the  Transfer  of 
Property  Act,  and,  further  that  in  no  case 
could     the     plaintiff     recover     possession, 
without  payment  of  this  purchase-money ; 

(4)  that,  in  any   event,    the   plaintiff  was 
liable  to  pay  the  full  sum  due  on  the  mort- 
gage in  suit  amounting  to  about    17   lakhs 
of    rupees,  and  that    the  plaintiff  was  not 
entitled  to  demand  any  account  of  the  profits 
for  the  period  during  which  he  (Naunihal 
Singh)  was  in  possession. 

The  Subordinate  Judge  held  that  the 
plaintiff  had  a  good  title  to  maintain  the 
redemption  suit.  He  held  further  that  the 
suit  was  not  barred  by  limitation  as  adverse 
possession  could  not  run  against  the  plaint- 
iff before  the  1st  December  1919  when  the 
plaintiff's  estate  in  the  mortgaged  property 
fell  into  possession  on  the  death  of  the 
previous  life-tenant.  And,  lastly,  he  found 
that  Naunihal  Singh  was  liable  to  submit 
to  a  decree  for  redemption  after  an  account 
had  been  taken  of  the  profits  for  the  period 
during  which  the  mortgagees  or  those  who 
derived  title  from  them  had  been  in  posses- 
sion of  the  property. 

Now  in  this  Appeal  No.  86  of  1924  three 
su'  stantial  points  have  been  urguod  on 
behalf  of  the  appellant  Naunihul  Siugh. 
Oae  of  these  relates  to  the  title  of  Alice 
Qeorgina  Skinner  and  her  right  to  main- 
tain the  suit.  Another  relates  to  the  ques- 
tion of  limitation  which  has  been  raised 
here  in  a  new  form.  The  third  concerns  the 
mortgage  account,  the  argument  being  that 
it  has  not  been  properly  calculated  by  the 
Court  below.  Before  1  proceed  to  discuss 
these  matters  it  is  necessary  to  say  some- 
thing of  the  history  of  the  Skinner  family 
and  of  the  Skinner  estate  which  has  been 
the  subject  of  much  litigation,  A  good 


V.  ALICE  QEORGINA 


'deal  of  that  history  will  be  found  in  the 
report  of  a  case  decided  by  their  Lordships 
of  the  Privy  Council  in  the  year  1913.  ^  See 
Richard  Ross  Skinner  v.  Naunihal  Singh 
(1).  Naunihal  Singh,  who  was  a  party  to 
that  litigation,  is  the  same  gentleman 
who  is  one  of  the  appellants  in  the  present 
case.  Thomas  8k inner,  who  was  the  owner 
of  the  mortgaged  property  now  in  suit  and 
who  made  the  mortgage  of  the  1st  Septem- 
ber 1863  now  sought  to  be  redeemed,  was 
the  father  of  Alice  Georgina  Skinner,  the 
present  plaintiff.  He  died  in  November  1864 
leaving  three  sons  and  three  dauirlitoi-  By 
his  Will,  dated  the  22nd  Oci"hi  LMli,  he 
made  certain  dispositions  of  his  estate 
which  afterwards  gave  rise  to  a  good  deal 
of  controversy.  This  Will  was  construed  in 
the  Privy  Council  case  cited  above,  and  to 
put  the  matter  briefly,  it  was  held  that 
the  effect  of  the  Will  was  to  create  a  suc- 
cession of  life-estates  in  favour  of  the 
testator's  three  sons,  and  that  in  default  of 
lawful  male  issue  born  to  any  of  these  sons, 
the  estate  was  to  go  over  to  the  daughters. 
The  three  sons  of  Thomas  Skinner  are 
all  dead.  The  eldest  of  them,  Thomas 
Brown  Skinner,  died  on  the  3rd  July  1900, 
the  second,  Richard  Ross  Skinner,  who  was 
the  plaintiff  in  the  suit  which  came  before 
the  Privy  Council  in  the  case  mentioned 
above,  died  on  the  15th  August  1913.  The 
third  son  was  George  Corbyn  Skinner  who 
died  on  the  1st  December  1919.  On  this 
Jatter  date  the  only  surviving  daughter  of 
Thomas  Skinner  was  Alice  Georgina  who 
was  the  plaintiff  in  the  present  suit.  Both 
the  other  sisters  died  in  the  lifetime  of 
their  brothers.  Jt  follows  then  that  on  the 
death  of  the  third  son,  George  Corbyn 
Skinner,  the  sole  surviving  sister,  i.  e.} 
Alice  Georgina,  acquired  an  absolute  estate 
in  the  property  of  her  father,  Thomas  Skin- 
ner, provided  that  on  that  date  there  were 
no  legitimate  male  issue  of  any  of  the 
three  brothers  in  existence. 

It  has  not  been  suggested  that  either  of 
the  two  elder  brothers  left  any  such  issue 
but  it  was  pleaded  by  Naunihal  Singh  and 
some  of  the  other  defendants  that  George 
Corbyn  Skinner  left  two  legitimate  sons 
still  in  existence  in  whose  presence  Alice 
Georgina  could  have  no  right  to  the  estate. 
It  was  further  pleaded  by  these  same  defend- 

(1)  19  Ind.  Gas.  267;  35  A.  211;  40  I.  A.  105;  11  A.  L. 
J.  494;  25  M.  L.  J.  Ill;  (1913)  M.  W.  N.  500;  13  M.  L, 
T.  488;  17  0,  L,  J,  555;  15  Bom,  L,  R,  502;  17  C,  W.  N. 
653  (P.  0.). 


[92 1.  0. 1926] 

ants  that  Alice  Georgina  was  not  the 
daughter  of  Thomas  Skinner.  This  latter 
plea,  however,  was  easily  disposed  of  and 
the  Subordinate  Judge  had  no  difficulty 
in  finding  that  the  plaintiff  was  Thomas 
Skiiiner's  daughter.  This  matter  has  not 
been  argued  before  us.  As  regards  the 
other  plea  it  is  admittedly  the  fact  that 
there  are  in  existence  two  sons  of  George 
Corbyn  Skinner.  The  plaintiff's  case  is  that 
they  are  illegitimate,  and  the  Subordinate 
Judge  found"  that  they  were.  We  have 
heard  arguments  here  relating  to  this  point, 
and  we  agree  with  the  Subordinate  Judge. 
Some  of  the  evidence  led  by  the  plaintiff 
upon  this  issue  was  of  little  value  but  there 
is  the  statement  of  a  witne^^  Christopher,  a 
missionary,  who  deposed  that  the 

two  sons  left  by  George  Co  er  were 

born  out    of  wedlock,    '  knew 

George  Corbyn  Skinner  1  with 

him  at  the  time  these  e  ^a.    His 

evidence  appears  to  u  j  conclusive  of 

the  matter  and  it  h  ^c  been  rebutted. 
This  part  of  the  case  is  «'i  i.-.«:<ii!iifh  at  an 
end  and  agreeing  with  the  C^un  ^elow  I 
find  that  Alice  Georgina  Skinner  was  the 
lawful  owner  of  her  father's  estate  at  the 
time  she  brought  the  suit  and  was  entitled 
to  maintain  the  suit  for  redemption. 

The  next  question  to  be  discussed  is  that 
of  limitation.  In  the  17th  ground  taken  in 
the  memorandum  of  appeal  the  plea  is 
raised  that  the  suit  is  barred  under  Art. 
134  of  the  Schedule  to  the  Limitation  Act 
(IX  of  1908)  which  provides  a  period 
of  12  years  for  a  suit  brought  to  recover 
possession  of  immoveable  property  which 
has  been  mortgaged  and  afterwards  trans- 
fened  by  the  mortgagee  for  valuable  con- 
sideration. In  cases  to  which  the  Article 
applies  time  begins  to  run  from  the  date 
of  the  transfer,  that  is  to  say,  the  transfer, 
by  the  mortgagee.  According  to  the  case 
for  Naunihal  Singh  he  is  such  a  transferee 
having  in  the  year  1904  purchased  the 
five  villages  which  he  claims,  from  the 
Nawab  of  Rampur  fora  sum  of  Rs.  1,77,000. 
It  is  stated  that  in  the  year  previous 
(1903)  the  Nawab  bought  these  properties 
from  the  Seths  of  Muttra,  the  representa- 
tives of  the  mortgagees  who  advanced  the 
money  under  the  deed  of  the  1st  September 
1863,  now  in  suit.  It  is  to  be  observed 
here  that  this  Article  was  not  pleaded  in 
the  Court  below.  There  the  defence  of 
limitation  was  raised  upon  the  ground  of 
adverse  possession  pure  and  simple,  and  was 


[92  I.  0.  1926]  NtJNlHAL  SINGH  V.  ALICE  OEORGiNA  SKINNER. 


rightly  overruled  by  the  Subordinate  Judge 
on  the  ground  (inter  alia)  that  no  adverse 
possession  could  begin  to  run  against  the 
plaintiff  who  was  not  entitled  to  possession 
before  the  1st  December,  1919,  the  date  on 
which  her  last  surviving  brother,  George 
Corbyn  Skinner,  died. 

The  plaintiff  .being  a  remainderman 
under  her  father's  Will/was  entitled  to  plead 
Art,  140  of  the  Schedule  to  the  Limitation 
Act  and  to  say  that  she  had  the  right  to 
sue  for  recovery  of  the  estate  at  any  time 
within  12  years  from  the  date  it  fell  into 
possession.  The  suit  was  filed  less  than  six 
months  after  that  date.  The  Subordinate 
Judge  was  never  called  upon  to  consider 
the  terms  of  the  Art.  134  and  although 
it  is  true  that  a  plea  of  limitation  can  be 
raised  at  any  time,  it  was  with  some  hesita- 
tion that  I  consented  to  its  being  raised 
here,  on  the  ground  that  the  appellant 
Naunihal  Singh  had  not  for  the  purposes  of 
this  appeal  printed  the  necessary  documents 
upon  which  he,  relies  for  proof  of  the  facts 
which  he  must  establish  in  order  to  support 
the  plea  under  Art.  134.  However,  as  there 
could  be  no  doubt  as  to  those  facts  and  as 
the  necessary  documents  had  been  printed 
before  in  the  case  of  Richard  Ross  Skinner 
v  Naunihal  Singh  (1)  which,  as  has  been 
said,  was  decided  by  the  Privy  Council  in 
the  year  1913,  we  allowed  the  point  to  be 
argued.  Those  documents  or  some  of  them  at 
any  rate  are  referred  to  in  their  Lordships1 
judgment,  and  I  shall  have  occasion  later  on 
to  draw  attention  to  what  was  there  said 
concerning  them. 

1  shall  now  set  out  the  facts  and  quote 
from  the  documents  which  are  translated 
and  printed  in  the  paper-book  of  F.  A. 
No.  127  of  1^07  Naunihal  Singh  v.  Richard 
Ross  Skinner.  At  page  1A  of  this 
book  we  have  the  mortgage- deed  of  the  1st 
September  1863,  executed  by  Thomas 
Skinner.  This  is  the  mortgage  of  which 
redemption  is  now  being  sought.  The 
deed  is  a  hypothecation  bond  which  recites 
that  eighteen  villages  belonging  to  the 
mortgagor  are  being  offered  as  security  for 
a  loan  of  Rs,  50,000.  As  a  matter  of  fact 
only  seventeen  villages  are  named.  The 
eighteenth  which  was  probably  Tiicnnt  to  be 
included  in  the  security  was  Mauza  Audhel, 
which  was  subsequently  included  in  a 
later  mortgage-deed  presently  to  be  men- 
tioned. By  this  deed  of  the  1st  September 
1863  the  mortgagor  undertook  to  pay  the 
mortgage  debt  in  full,  principal  and  inter- 


est, at  the  end  of  December  1863,  and 
he  covenanted  that  if  he  failed  to  dis» 
charge  the  debt  as  stipulated,  he  would 
put  the  Seths  (the  mortgagees)  in  possession 
who  would  then  be  able  to  realize  and 
apply  the  income  of  the  mortgaged  estate 
under  their  own  superintendence  and 
management.  Thomas  Skinner  died  to- 
wards the  end  of  1864,  and,  following  the 
narrative  of  events  in  the  Privy  Council 
judgment  above  referred  to,  it  appears 
that  the  Court  of  Wards  took  possession 
of  the  estate  and  held  it  till  the  year  1867 
when  possession  was  handed  over  to  the 
eldest  son,  Thomas  Brown  Skinner,  who 
then  proceeded  to  deal  with  the  estate 
as  if  he  were  the  absolute  owner  which  he 
was  not  for  reasons  already  stated.  On 
the  IQih  November  18(57.  Thomas  Brown 
Skinner  executed  a  mortgage  for  Rs.  50,000 
in  favour  of  the  tSeths.  Out  of  this 
sum  Rs.  43,291-14-3  were  due  on  the 
mortgage  of  the  1st  September  1863  execut- 
ed by  hi3  father.  The  balance  he  took  iu 
cash  for  the  purpose  of  discharging  certain 
debts  which  he  owed.  The  same  property  was 
mortgaged  as  was  described  in  the  earlier 
deed — the  eighteen  villages  which  were  all 
mentioned  by  name  and  included  Audhel, 
the  village  which  had  been  omitted  in  the 
document  of  1863. 

It  ia  important  to  notice  the  conditions  of 
this  mortgage  for  it  was  provided  that 
the  names  of  the  mortgagees  were  to  be 
entered  in  the  revenue  papers  and  it  was 
further  provided  that  the  entire  income  of 
the  mortgaged  property  was  to  be  paid 
direct  into  the  treasury  of  the  mortgagees. 
It  was  declared  that  the  mortgagees  were 
to  appoint  a  treasurer  and  two  peons  at  the 
cost  of  the  mortgagor  and  that  the  money 
which  was  collected  from  the  villages  was 
to  be  deposited  with  the  treasurer  without 
any  diminution.  Directions  were  then 
given  regarding  the  application  of  the  in- 
cQ'ne  after  it  had  been  so  received  in 
deposit.  After  payment  of  Government  re- 
venue, patwaris  fees  and  the  usual  village 
expenses,  the  balance  was  to  be  applied  iu 
payment  of  the  interest  on  the  mortgage- 
money,  the  salaries  of  the  two  peons  and 
the  treasurer  appointed  by  the  mortgagee 
and  the  salaries  of  the  mortgagor's  own 
servants  and  karindas.  If  any  surplus  re- 
mained after  providing  for  these  charges, 
it  was  to  be  applied  in  reduction  of  the 
principal  sum.  Another  provision  was  that  if 
any  of  the  karindas  of  the  mortgagor  acted 


against  the  wishes  of  the  moiitrncect.  he 
"was  to  be  dismissed  on  a  complaint  being 
made  by  the  treasurer.  It  is  not  necessary 
to  refer  to  any  of  the  other  terms  of  this 
document,  but  it  will  be  observed  that  the 
result  of  the  arrangements  just  mentioned 
tras  to  put  the  mortgagees  in  complete 
control  of  the  revenues  of  the  mortgaged 
estate  as  effectively  as  if  they  had  been  put 
in  actual  physical  possession  and  it  was  no 
doubt  for  this  reason  that  it  was  stated  in 
the  Privy  Council  judgment  that  this  mort- 
gage of  1857  executed  by  Thomas  Brown 
Skinner  was  a  mortgage  with  possession. 
What  their  Lordships  say  with  reference  to 
this  transaction  is  : 

"At  that  time  there  was  due  on  the  mort- 
gage for  Rs.  50,000  granted  by  his  father, 
Thomas  Skinner,  a  sum  of  Rs,  43,000.  The 
niorttfHEPo*  were  placed  in  possession  by 
him  (Thomas  Brown  Skinner),  and  he  also 
himself  borrowed  further  sums  in  that  year, 
in  1869  and  in  1872,  and  granted  mortgages 
over  the  properties  therefor. 

The  next  thing  to  be  noticed  is  that  on 
the  20th  December  1872,  Seth  Lachman  Das, 
who  was  then  the  representative  of  the  mort- 
gagees purchased  in  execution  of  simple 
money  decrees  obtained  by  other  creditors 
five  of  the  villages  which  he  held  in  mort- 
gage. The  sale  certificates  are  all  printed 
in  the  paper- book  of  F.  A,  No.  127  of  1907, 

5!ifto.s  IS  A  zt  seq.  Those  five  villages  were 
_  ('L'l'-iMiiM!1.  Ohori  Bachhera,  Sunpehra, 
Gangola  and  Salehpur.  In  the  certificates 
the  property  acquired  by  purchase  is  the 
'''.;•;  iiT'  ••:,"•  :''s  equity  of  redemption'1 
in  all  five  villages.  The  judgment-debtor 
was  Thomas  Brown  Skinner.  We  hear 
nothing  more  of  these  properties  until  we 
come  to  the  2nth  December  1898,  on  which 
date  Seth  Lachman  Das  made  a  mortgage  in 
favour  of  the  Nawab  of  Rampur  to  secure  a 
defet  of  15  lakhs  of  rupees.  This  was  a 
mortgage  with  possession  and  among  the 
items  of  property  mortgaged  were  the 
five  villages  mentioned  above.  There  can 
be  no  doubt  that  in .  the  mortgage-deed 
these  villages  were  described  by  the  Seth  as 
"being  his  own  property.  He  distinctly  calls 
them  his  own  andsa>s  he  is  mortgaging 
them  with  ail  the  proprietary  and  zemin- 
dari  rights,  and  in  the  schedule  attach- 
ed to  the  mortgage  he  sets  out  the  value 
of  each  village  and  says  that  all  five  are 
worth  Rs.  1,78,100.  That  is  obviously  a 
valuation  of  the  proprietary  rights,.  This 
document  of  mortgage  is  to  be  found  at 


NAUNIHAL  STNOH  V.  ALICE  GEORCUNA  SKINNER.  [92  I.  0.  1926] 

page  17-R.  of  the  paper-book  of  F.  A.  No.  127 
of  1907. 

Then  we  come  to  a  document,  dated  the 
24th  September  IS 03,  at  page  29-R  of  the 
same  record.  This  is  a  conveyance  by  the 
Seth  of  certain  of  the  properties  already 
-  •'.:..:<  :  to  the  Nawab.  It  seems  that 
',  •  ."•  :  ,  oeing  unable  to  keep  down  the 
interest  on  the  mortgage- debt,  determined 
to  sell  the  property  or  most  of  it  in  satis- 
faction of  the  debt.  The  property  conveyed 
included  the  five  villages  of  which  we  have 
been  speaking  and  so  they  passed  to  the 
Nawab  of  Rampnr,  On  the  llth  April  1904 
the  Nawab  conveyed  these  villages  to 
Naunihal  Singh  for  a  sum  of  Rs.  1,77,000. 
The  deed  is  printed  at  page  35-R  of  the 
printed  record  of  F.  A.  No  127  of  1907  and 
in  it  the  Nawab,  after  reciting  the  convey- 
ance made  to  him  by  the  Seth,  describes 
himself  as  the  absolute  owner  These  then 
are  the  facts  upon  which  Naunihal  Singh 
relies  in  support  of  his  plea  of  limitation 
raised  under  Art.  134  and  the  question  is 
whether  he  is  entitled  to  the  benefit  of  that 
Article,  In  my  opinion  he  is. 

It  has  been  argued  before  us  that  Art.  134 
cannot  apply  because  the  mortgage  of  1863 
was  not  a  mortgage  with  possession  and 
because  the  mortgagees  did  not  obtain  pos* 
session  under  that  mortgage  but  under  the 
later  and  independent  mortgage  of  1867 
executed  by  Thomas  Brown  Skinner.  Accord- 
ing to  this  argument  Art.  134  must  be 
so  read  as  to  mean  that  the  property  which 
has  been  mortgaged  must  have  been,  in  the 
first  instance,  mortgaged  with  possession 
and  that  the  transfer  referred  to  must  be  a 
transfer  made  by  a  mortgagee  who  has 
acquired  possession  under  the  mortgage.  I 
cannot  construe  the  Article  in  this  way.  It 
deals  with  transfers  of  property  which  has 
"been  mortgaged.  The  Article  does  not  say 
"mortgaged  with  possession."  I  agree,  of 
course,  that  the  suits  referred  to  in  the 
Article  being  suits  for  possession,  it  must 
be  assumed  that  when  such  a  suit  is  brought 
the  defendant-transferee  is  in  possession.  I 
also  think  it  reasonable  to  hold  that  the 
transfer  which  he  has  taken  must  have  been 
one  which  placed  the  transferee  in  posses- 
sion and  that  consequently  where  the  trans- 
feror is  a  mortgagee  he  must  have  been 
in  possession  of  the  mortgaged  property  at 
the  time  he  made  the  transfer,  But  I  am 
not  prepared  to  accept  the  argument  that 
the  possession  which  the  transferor  has  at 
the  time  of  the  transfer  must  necessarily  have 


1.  0.  1928] 


NAUNIHAI,  SINGH  V   ALICE  GEOKQINA  SKINNED, 


been  acquired  under  the  mortgage  original-  - 
ly  made  in  his  favour,  it  seems  to  me  that 
even  if  the  mortgage  was  a  simple  mort- 
gage and  if  the  mortgagee  subsequently 
gets  possession  of  the  mortgaged  property; 
otherwise,  as  for  example,  by  purchase  in 
execution  of  a  simple  money-decree  obtain- 
ed by  another  creditor,  the  Article  will  still 
apply  if  it  is  established  that  at  the  time 
the  transfer  is  made  the  mortgagee  was 
in  possession,  no"!  matter  under  what 
title.  The  Article  is  designed  for  the  pro- 
tection of  a  transferee  who  has  been  led  by 
a  mortgagee  to  believe  that  he  is  acquir- 
ing not  merely  mortgagee  rights  but  a  full 
proprietary  title.  To  quote  the  words  of 
theirLordships  of  the  Privy  Council  in  Rada- 
nath  Das  v.  Gisborne  cfeOo.  (2),  in  "  n-i  miner 
the  ."ojf'i'i!"  -o  'li-.si  under  the  old  Act  XIV 
of  ],H1  1  "ir;r  -..'i-  r  must  mean  some  person 
who  purchases  that  which  is  de  facto  a 
mortgage  upon  a  representation  made  to 
him  and  in  the  full  belief  that  it  is  not  a 
mortgage  but  an  absolute  title.'1 

If  that  is  so,  I  fail  to  see  why  it  should 
make  any  difference  to  the  purchaser  (now 
the  transferee)  whether  the  possession  which 
his  transferor  has  at  the  time  of  the  trans- 
fer arose  directly  out  of  the  mortgage  or 
was,  prior  to  the  date  of  transfer,  acquired 
in  some  other  way.  The  possession  is  there 
and  is  the  principal  factor  in  determining 
the  belief  of  the  transferee  that  his  trans- 
feror is  giving  him  a  full  proprietary  title. 
The  transferor  could  not  very  well  purport 
to  confer  such  a  title  if  he  were  not  in 
actual  possession  I  do  not  see  why  the 
transferee  should  be  bound  to  inquire  how 
that  possession  was  obtained,  for  under  the 
law  as  it  now  stands  the  transferee  is  not 
required  to  show  bona  fides,  which  was  neces- 
sary under  the  law  as  it  was  when  the  case 
of  Ridanath  Doss  v.  Gisbornes  Co.  &  (2)  was 
decided.  The  alteration  in  the  law  appears 
to  have  been  made  advisedly  in  order  to 
exclude  ths  notion  that  absence  of  notice 
of  the  real  owner's  claim  was  necessary  to 
enable  a  purchaser  to  claim  the  protection 
of  this  Article,  But  I  am  told  that  this 
Court  has  decided  in  favour  of  the  inter- 
pretation of  Art;.  131  relied  upon  by  the 
learned  Counsel  for  the  plaintiff-respodent, 
and  I  am  referred  to  the  Bench  decision  in 
the  case  of  Ram  Piari  v.  Budhaain  (3).  T 

|2)  U  M  1.  A.  1;  fi  15.  L  R.  530,  15  W  R,  P  O  2i; 
2  Suth.  P.  0.  J.  397;  2  Sar  P.  G  J.  636;  20  13.  R.  G87 
'(P.  C  \ 

(3;  61  Ind.  Cas,  540;  43  A.  104;  18  A,  L.  J,  995;  2  U, 
P.L,B.(A.)83«. 


cannot  accept  the  argument.  At  page  107* 
of  the  report  after  referring  to  the  purpose 
of  Art  134,  the  learned  Judges  say  that  the 
transfer  referred  to  in  Art.  134  is  a  transfer 
with  possession  or  followed  by  possession 
as  a  necessary  incident  or  ingredient  of  it, 
and  they  cite  another  judgment  of  this 
Court  in  support  of  this  observation: 
Husaini  Khanctm  v,  Ilumin  Khan  (4). 
This  observation  is  in  my  judgment  no  au- 
thority for  the  proposition  now  put  forward. 
The  "transfer"  to  which  reference  is  made 
is  obviously  the  transfer  made  by  the  mort- 
gagee, and,  as  f  have  already  indicated,  I 
agree  that  the  mortgagee  when  he  comes  to 
make  the  transfer,  must  be  in  a  position  to 
hand  over  possession,  which  he  cannot  do 
unless  he  has  got  it  himself.  But  the  obser- 
vation cannot  he  deemed  to  embrace  the 
transfer  made  to  the  mortgagee  in  the  first 
instance  and  to  mean  that  the  mortgage  must 
have  been  a  mortgage  with  possession  under 
which  the  mortgagee  entered  either  at  the 
time  the  mortgage  was  granted  or  subsequ- 
ently. 

But,  apart  from  this,  let  us  see  how  the 
matter  stands  in  this  case.  How  did  the 
mortgagees,  whose  representative  after  wards 
sold  to  the  Nawab  of  Ram  pur,  obtain  pos- 
session of  these  five  villages. 

It  is  said  that  they  acquired  it  under  the 
mortgage  executed  by  Thomas  Brown  Skin- 
ner in  1867  and  also  under  the  purchases  in 
execution  made  in  the  year  1872  and  not 
under  the  mortgage  of  1863  made  by  Tho- 
mas Skinner. 

I  do  not  think  this  statement  is  borne  out 
by  the  facts.  I  have  already  pointed  out 
that  in  the  deed  of  1863  the  mortgagor  co- 
venanted to  hand  over  possession  in  case  he 
failed  to  discharge  the  entire  mortgage- 
debt  by  the  end  of  December  of  that  year. 
There  can  be  no  doubt  that  the  debt  was  not 
so  discharged,  forit  io  proved  that  in  1867, 
when  Thomas  Brown  Skinner  executed  his 
m,):tg!iLV4  there  was  still  outstanding  a 
sumfofKa.  43,UOOoddon  the  earlier  mort- 
gage in  respect  of  which  the  n,'  i'ir.iLTc.s 
were  entitled  to  take  possession.  Thomas 
Brown  Skinner,  to  secure  this  debt  and  a 
further  loan  of  Rs.  6,000  odd,  makes  the 
mortgage  of  the  10th  November  1867  and 
places  the  mortgagees  in  complete  control 
of  the  income  of  the  mortgaged  property, 
and  I  recall  here  what  their  Lordships  of 

(4)  20  A  471;  (1907)  A.  W.  N.  133,  4  A.  L,  J.  375. 
~ H'ageof  43  A.-[0rf'l " ' 


70 


NAUNIHAL  SINGH  V.  ALICE  OEORQINA  SKINNER, 


the  Privy  Council  said  regarding  this  arran- 
gement They  said  that  the  mortgagees 
were  placed  in  possession  by  him  (t.  e,, 
Thomas  Brown  Skinner).  If  this  is  so, 
did  the  mortgagees  take  possession  under 
the  mortgage  of  1863  or  the  mortgage  of 
1867?  That  they  were  entitled  to  have  pos- 
session under  the  earlier  mortgage  is  clear. 
Is  it  to  be  said  then  that  notwithstanding 
this  the  mortgagees' possession  was  acquired 
not  under  the  earlier,  but  under  the  later 
mortgage,  a  transaction  quite  independent 
of  the  first  ?  That  was  evidently  not  the 
opinion  of  their  Lordships  of  the  Privy 
Council.  At  page  225  of  the  report  in 
Richard  Ross  Skinner  v.  Naunihal  Singh  (1) 
they  say 

uBut  the  case,  in  their  Lordships1  view, 
stands  in  a  very  different  position  with  re- 
gard to  the  rights  of  mortgagees  and  their 
successors  under  mortgages  granted,  not  by 
the  appellants'  brother,  but  by  the  appel- 
lant's father,  Thomas  Skinner.  With  re- 
gard to  the  appellant's  brother,  it  is  derided 
by  this  judgment  that  the  estate  which  he 
possessed  was  that  of  a  tenant  for  life, 
and  that  mortgages  proceeding  in  respect 
of  debts  incurred  by  him  could  not  affect 
the  estate  beyond  his  life.  Even  if  it  be 
supposed  that  after  he,  Thomas  Brown 
Skinner,  came  into  possession  he  granted 
mortgages  in  renewal  of  those  granted  by  his 
father  and  the  outstanding  rights  of  the 
mortgagees  could  not  in  justice  or  equity 
be  prejudiced  thereby.  To  do  so  would  be 
to  operate  a  substantial  defeat  of  the  rights 
of  those  mortgagees  and  to  imply,  what 
certainly  never  was  the  intention  of  any  of 
the  parties  to  the  transaction,  that  by  the  re- 
newal of  a  mortgage  by  a  person  with  a  limit- 
ed interest  in  the  estate  the  intention  was 
to  operatea  ;.'••  r.vir  <-f  debts  effectually 
secured  upon  '•••,,:  »,  right." 

It  seems  to  me,  therefore,  that  the  mort- 
gage of  1863  being  still  alive  in  1867  and 
the  mortgagees  bging  under  that  mortgage 
entitled  to  get  possession,  the  possession 
delivered  by  Thomas  Brown  Skinner  in  1867 
must  be  referred  to  that  right  and  the  mort- 
gagees were,  therefore,  in  possession  of  the 
mortgaged  property  from  that  time  under 
Thomas  Skinner's  mortgage  of  1863  and 
quite  apart  from  such  possession  as  was 
subsequently  gained  by  the  auction- pur- 
chases in  1872  under  the  decrees  obtained 
against  Thomas  Brown  Skinner. 

In  this  view,  therefore,  even  if  the  con- 

Tage  of  35  A.— [Ed .]  "" 


[92  L  0. 1926J 

struction  of  Art.  134  propounded  by  the 
learned  Counsel  for  the  plaintiff-respondent 
be  accepted,  the  conditions  necessary  to 
give  the  purchaser  the  protection  of  Art. 
134  are  fulfilled.  1  have  referred  to  the  sale 
of  the  mortgaged  property  to  the  Nawab  of 
Rampur  in  1903  and  to  the  sale  by  him  to 
Naunihal  Singh  in  1904.  When  Seth  Lach- 
man  Das  sold  to  the  Nawab  in  1903  he  was 
in  possession  of  these  five  \  lilaKc.-mi-.i  had 
been  so  for  over  thirty  years.  He  purport- 
ed to  convey  an  absolute  title  to  the  Nawab, 
and  no  doubt  believed  that  he  had  a  right 
to  do  so  on  the  understanding,  mistaken 
though  it  was,  that  he  had  acquired  the 
proprietary  right  by  the  purchase  of  Tho- 
mas Brown  Skinner's  equity  of  redemption 
in  the  year  1872.  That  the  Nawab  gave 
valuable  consideration  for  the  sale  is  clear- 
ly established,  as  is  also  the  fact  that  in  the 
folio  wing  year,  1904,  Naunihal  Singh  paid 
the  Nawab  Rs.  1,77,000  for  the  full  propriet- 
ary interest  in  these  villages.  For  these 
reasons  I  hold  that  the  plea  of  limitation 
raised  under  Art.  134  must  prevail  and  that 
Naunihal  Singh  is  not  liable  to  be  ejected 
now  in  a  suit  for  redemption  of  the  mort- 
gage of  1863. 

It  may  be  noted  here  that  this  plea  of 
limitation  was  not  available  to  Naunihal 
Singh  in  the  suit  which  Richard  Ross  Skin- 
ner brought  against  him  in  1906  and  which 
was  decided  by  their  Lordships  in  the  year 
1913.  By  that  time  the  period  of  twelve 
years,  :vc\  -i-ii-j:  from  the  date  of  the  sale 
by  the  6em  10  the  Nawab  of  Rampur  (the 
24th  September  1903)  had  not  expired. 

The  appeal  of  Naunihal  Singh  must,  there- 
fore, be  allowed  and  the  decree  of  the  lower 
Court  reversed  in  so  far  as  it  awards  the  pos- 
session of  the  five  villages  Gangola,  Saleh- 
pur,  Neknampur,  Ghori  Bachhera  and  Sun- 
pehra  to  the  plaintiff.  The  decision  relieves 
me  from  the  duty  of  examining  the  other 
question  which  was  argued  on  behalf  of  the 
appellant  Naunihal  Singh,  namely,  the 
question  of  how  the  account  on  the  mort- 
gage should  be  taken.  As  Naunihal  Singh 
is  found  to  be  entitled  to  retain  possession 
of  these  five  villages,  lie  has  no  interest  in 
the  amount  which  the  plaintiff  is  liable  to 
pay. 

As  regards  the  other  appellant  Nawab 
Mukarram  Ali  Khan,  who  is  represented  by 
Mr.  Girdhari  Lai  Agarwala,  all  that  need  ba 
said  is  that  he  is  entitled  to  no  relief  under 
this  appeal.  He  claims  to  be  entitled  to 
retain  possession  of  one  item  oi  the  mort- 


[92  I.  0.  1928J 


NAUNIHAL  SINGH  V.  AL1C8  GEORGINA  SKINNBR. 


71 


gaged  property  only,  viz.,  Mauza  Daula 
Rajpura,  and  as  things  stand  at  present,  he 
has  got  what  lie  wanted,  for  the  suit,  in  so 
far  as  it  concerns  thia  village,  lias  been 
declared  by  the  Subordinate  Judge  to  have 
abated.  I  have  already  mentioned  that  no 
other  appellants  except  these  two  have  been 
represented  before  us  in  this  appeal  (i.  e., 
F.  A.  No.  86  of  1924). 

IN?.  A.  No.  494  OP  1922. 

This  appeal  is  without  substance  and 
must  fail.  The  appellants  are  three  of  the 
defendants.  Qobind  War  up,  nand  Sarup 
and  Chand  Sarup.  They  are  in  possession  of 
a  IQ-biswa  share  of  Mauza  Mathurapur,  one 
of  the  mortgaged  items  which  they  claim  to 
have  acquired  as  auction- purchasers  in  exe- 
cution proceedings.  To  explain  the  nature 
of  the  defence  set  up  by  these  persons  it  is 
necessary  to  state  the  following  facts:  Ric- 
hard Ross  Skinner,  who  had  sued  for  re- 
demption in  1906,  died  on  the  15th  August 
1913,  a  few  months  after  the  decision  of 
th^ir  Lordships  of  the  Privy  Council  Their 
Lordships  had  directed  the  suit  of  Richard 
Roas  Skinner  to  be  remitted  to  the  High 
Court  to  be  dealtwith  upon  the  footing  that 
the  rights  under  the  mortgages  granted  by 
Thomas  Skinner  should  be  satisfied  by  pay- 
ment being  made  to  the  mortgagees  or  their 
successors.  On  such  payment  being  made 
within  a  time  to  be  fixed,  Richard  Ross 
Skinner  was  to  be  given  a  decree  for  pos- 
session; on  failure  to  pay,  his  suit  was  to  be 
dismissed.  Before  the  investigation  neces- 
sary to  give  effect  to  these  orders  could  be 
held,  Richard  Ross  Skinner  died  Mid  hav- 
ing left  no  legal  representatives  who  could 
continue  the  claim,  the  suit  abated.  An 
attempt  was  made  by  his  brother,  George 
Corbyn  Skinner,  to  get  leave  to  continue  the 
suit  but  thia  failed  for  the  reason  that  his 
title  as  a  life-tenant  was  quite  independent 
of  that  which  his  brother  had  held.  Having 
failed  in  this  attempt,  George  Corbyn  Skin- 
ner brought  in  his  own  right  a  suit  for  re- 
demption which  never  reached  the  stage  of 
decision  owing  to  his  death  on  the  1st  De- 
cember 1919. 

Now  in  the  suit  which  was  brought  by 
George  Corbyn  Skinner  these  three  appel- 
lants in  F.  A.  No.  494  of  1922  were  im- 
pleaded  as  defendants.  In  the  course  of 
that  suit  a  compromise  was  effected  bet  ween 
George  Corbyn  Skinnerandthesedefendants 
in  accordance  with  which  apparently  they 
were  allowed  to  retain  possession  of  a  10- 
'biswa  share  in  Mouj$a  Mathurapur,  one  of  the 


items  of  property  mortgaged.  In  the  present 
suit  they  set  up  this  compromise  as  a  bar  to 
the  claim  of  the  plaintiff  in  respect  of  this 
property.  The  Subordinate  Judge  overruled 
this  defence  being  of  opinion  that  no  agree- 
ment entered  into  between  George  Corbyn 
Skinner  and  these  defendants  could  bind 
the  plaintiff  in  the  present  action.  This 
vpas  without  doubt  a  correct  decision,  for 
Georga  Corbyn  Skinner  being  only  a  life- 
tenant  no  act  of  his  could  be  binding  upon 
the  plaintiff  in  the  present  suit.  She  was 
not  claiming  under  George  Corbyn  Skinner 
but  under  an  independent  title. 

The  appellants  seek  to  raise  this  plea  again 
in  appeal,  but  for  the  reason  just  given,  it 
cannot  succeed.  First  Appeal  No.  494  of 
1922,  therefore,  fails.  The  result,  therefore, 
is  as  follows. 

First  Appeal  No.  86  of  1924  succeeds  so  far 
as  the  claim  of  Kunwar  Naunihal  Singh 
is  concerned  and  the  decree  of  the  lower 
Court  is  reversed  to  this  extent  that  it  is 
declared  that  the  suit  of  the  plaintiff  fails 
and  is  dismissed  with  respect  to  the  five 
villages  Gangola,  Salehpur.  Neknampur, 
Ghori  Bachhera  and  Sunphera.  The  decree 
of  the  Court  below  will  be  amended  accord- 
ingly. As  regards  costs  I  decline  to  make 
any  order  in  favour  of  Kunwar  Naunihal 
Singh  either  here  or  in  the  Court  below.  He 
has  succeeded  on  a  plea  of  limitation 
which  was  not  raised  in  the  Trial  Court 
and  in  this  Court  he  failed  to  have  trans- 
lated and  printed  the  evidence  by  which 
he  sought  to  support  the  plea  of  limita- 
tion raised  here.  In  other  respects  F.  A. 
No  86  of  1924  fails  and  is  dismissed  with 
costs  in  this  Court  against  the  answering 
respondent  (the  plaintiff)  including  fees 
on  the  higher  scale.  First  Appeal  No. 
494  of  1922  fails  and  is  dismissed  with  costs. 

Kanhalya  Lai,  J. — I  agree  generally 
with  the  conclusions  at  which  my  learned 
brother  has  arrived  and  only  wish  to  add 
a  few  observations  in  regard  to  the  precise 
bearing  of  Arts.  134  and  140  of  the  Indian 
Lii  dtation  Act  on  the  Subject-matter  in 
issue  in  these  appeals.  The  mortgage  sought 
to  be  redeemed  was  effected  by  Thomas 
Skinner  on  the  1st  September  1863  in  favour 
of  the  firm  of  Seth  Likshmi  Chand  and  beth 
Govind  Das  of  Muttra  for  Rs.  50,000.  The 
mortgage  money  was  re-payable  with  in- 
terest at  Re.  1  per  cent,  per  mensem 
by  the  31st  December  1863  and  in  case  of 
default  it  was  to  bear  interest  at  1|  per 
cent,  per  mensem  from  the  date  of  its 


72 


NAUNIHAL  SIKQH  V,   ALlOtt  QEORQINA  SKINNER. 


execution,  There  was  a  further  covenant 
that  the  interest  shall  be  regularly  paid 
every  half  year  and  that  similar  payments 
will  be  madeto  wards  theprincipal  year  after 
year  till  the  entire  mortgage  money  was 
paid  up  ;  and  that.if  the  mortgagor  failed  to 
pay  the  principal  and  interest  from  the 
profits  of  his  property,  as  provided  in  the 
mortgage-deed,  he  shall  put  the  mortgagees 
in  possession  and  occupation  of  the  hy- 
pothecated villages  so  that  they  might 
recover  the  principal  and  interest  by  taking 
the  property  under  their  own  management 
and  supervision.  In  other  words,  the  mort- 
gage was  a  simple  mortgage  convertible 
into  a  usufructuary  mortgage  on  the  hap- 
pening of  a  certain  contingency. 

Thomas  Siknner  died  in  November  1864 
leaving  a  Will,  els,  4  and  5  of  whiclrprovid- 
ed  that  his  private  zemindari  which  had 
been  granted  to  him  by  the  Government  as 
a  reward  for  the  services  rendered  during 
the  rebellion  of  1857,  and  all  villages, 
houses  and  other  property  added  by  him 
from  time  to  time  to  the  original  grants, 
shall  on  his  demise  descend  to  his  eldest 
son,  Thomas  Brown  Skinner,  and  to  his 
lawful  male  children  according  to  the  law 
of  inheritance  and  in  the  event  of  the  eldest 
son,  Thomas  Brown  Siknner,  dying  without 
lawful  male  children,  the  same  shall  des- 
cend to  the  next  male  heir  of  the  testator; 
and  should  all  his  sons  die  without  lawful 
male  children,  it  shall  descend  to  his  female 
children  or  in  the  event  of  their  death, 
to  the  female  children  born  in  wedlock  of 
his  sons  in  succession. 

By  virtue  of  this  Will  Thomas  Brown 
Skinner  took  possession  of  the  estate  from 
the  Court  of  Wards  which  had  meanwhile 
taken  charge  of  it.  On  the  10th  November 
1867  he  executed  a  mortgage  in  favour  of 
the  Muttra  firm,  the  proprietor  whereof  was 
now  Seth  Govind  Dass,  for  Rs.  50,000  out 
of  which  Rs.  43,291-14-3  were  credited  on 
account  of  principal  and  interest  due  to  the 
said  firm  on  account  of  a  previous  mortgage 
and  the  balance  was  taken  by  him  in  cash 
for  his  own  purposes.  The  same  property 
which  had  been  previously  mortgaged  was 
hypothecated  again  and  it  was  provided 
that  the  mortgagors  shall  get  the  name  of 
the  mortgagee  entered  in  the  revenue  papers 
in  respect  of  the  mortgaged  villages  and 
that  the  karindas  and  seivauts  of  the 
mortgagor  shall  make  collections  and  assess- 
ment in  respect  of  the  same  of  their  0*11 
authority,  but  a  treasurer  and  two  peons 


[93  I.  0. 1926] 

shall  |)e  appointed  on  behelf  of  the  mort- 
gagee to  supervise  the  collections  and  take 
charge  of  the  money  so  realized,  to  be 
applied  after  payment  of  the  Government 
revenue,  the  patwaris  fee  and  the  village 
expenses  besides  the  cost  of  collection  in- 
cluding the  salary  of  the  treasurer  and  peons 
of  the  mortgagee,  in  the  reduction  of  the 
principal  and  interest  due  on  the  mortgage. 
There  was  a  further  provision  that  the 
accounts  of  the  debt  and  the  receipts  and 
disbursements  of  the  mortgaged  villages 
shall  be  made  up  six  monthly  and  that  if 
any  of  the  karindas  and  servante  of  the 
mortgagor  acted  against  the  wishes  of  ^  the 
mortgagee,  he  shall  be  liable  to  dismissal 
and  the  mortgagee  shall  have  power  to 
make  collections  and  assessment  on  his  own 
account. 

In  1872  and  1873  Seth  Lachman  Das,  the 
successor  of  the  mortgagee,  purchased  some 
mortgaged  villages  in  execution  of  certain 
decrees  for  money  held  by  other  persons 
against  Thomas  Brown  Skinner  and  believ- 
ing himself  to  have  become  thereby  the 
absolute  .owner  of  those  villages  and  to 
be  competent  to  deal  with  them  as  if 
they  were  his  own  property,  he,  on  the 
26th  December  1898,  as  the  surviving 
member  of  the  family  of  the  mort- 
gagee, mortgaged  the  said  villages  along 
with  other  properties  with  the  Nawab  of 
Rampur.  On  the  24th  September  1903  he 
sold  the  same  to  the  Nawab  of  Rampur 
who  in  turn  sold  five  of  the  villages  now 
in  dispute  on  the  llth  April  1904  to  Nau- 
nihal  Singh  defendant  for  a  sum  of 
Rs,  1,77,000,  describing  himself  as  the  abso- 
lute owner  of  the  properties  conveyed 

It  is  urged  on  behalf  of  Naunihal  Singh 
that  he  was  a  transferee  in  good  faith  and 
for  consideration  from  the  Nawab  of  Rampur, 
who  had  purchased  from  Seth  Lachmi  Das 
the  absolute  rights  he  claimed  to  have 
acquired  at  the  auction-sales  aforesaid  and 
that  he  is  protected  by  Art.  134  of  the  Indian 
Limitation  Act  from  being  made  liable 
to  a  claim  for  redemption  in  respect  of  the 
-•:.;*.  *:  :  .;  j;  of  the  1st  September  1863. 
Meauwmie  inomas  Brown  Skinner  died 
without  leaving  any  male  issue.  In  1^06  a 
suit  was  brought  by  Richard  Ro?a  Skinner 
for  the  possession  of  tlie  estate  which  was  in 
the  hands  of  transferees,  and  it  was  held 
by  their  Lordships  of  the  Privy  Council 
eventually,  on  a  construction  of  the  Will  of 
T!i  Jins  Skinner,  that  Thomas  Brown  Skin- 
ner had  only  a  life-estate  and  that  the 


[02  L  0. 1926] 

mortgage  granted  by 
ineffectual  to  convey  or  give  any  right  over 
any  estate  except  the  tenancy  for  life  of 
which  Thomas  Brown  Skinner  was  possess- 
ed. Their  Lordships  remanded  the  suit  for 
determining  tho  amount  of  the  mortgage 
money  due  under  the  mortgage  granted  by 
Thomas  Skinner.  But  before  the  suit 
could  be  re-heard  Richard  Ross  Skinner 
died  without  leaving  any  male  issue  and  as 
he  too  had  only  a  life-interest  in  the  estate 
his  suit  abated.  A  fresh  suit  for  redemp- 
tion was  then  brought  by  George  Corbyn 
Skinner,  the  next  son  and  heir  of  Thomas 
Skinner,  but  he  too  died  before  the  decision 
of  the  suit.  The  present  suit  was  then  filed 
by  Alice  Georgina  Skinner,  the  daughter 
and  next  heir  of  Thomas  Skinner,  for  the 
redemption  of  ttie  mortgage  of  the  1st  Sep- 
tember 18B3  and  it  is  evident  that,  but  for 
Art.  134  of  the  Indian  Limitation  Acfc,  the 
suit  would  be  within  time  under  Art.  148 
read  with  Art.  140  of  that  Act.  As  between 
tKe  transferees  and  the  present  plaintiff  no 
question  of  adverse  possession  can  arise, 
because  under  Art.  140  of  the  Indian  Limi- 
tation Act  a  remainderman  or  devisee  can 
sue  for  possession  of  immoveable  property 
devised  to  him  within  12  yeais  from  the 
date  when  his  estate  falls  into  possession. 
Once  a  person  enters  as  a  tenant  for  life 
he  cannot  hold  adversely  to  the  remainder- 
man. An  adverse  possession  for  any  length 
of  time  against  a  tenant  for  life  is  similar- 
ly ineffectual  against  the  reversioner  or  re- 
mainderman whose  right  to  possession  only 
accrues  on  the  death  of  the  tenant  for 
life. 

Article  134,  however,  allows  only  a  period 
of  12  years  for  a  suit  to  recover  possession 
of  immoveable  property  mortgaged  and  &ub- 
suquently  transferred  by  the  mortgagee 
for  a  valuable  consideration  to  be  comput- 
ed from  the  date  of  such  transfer.  It 
applies  to  cases  where  the  mortgagee  pur- 
poitsto  transfer  what  he  is  not  compe- 
tent to  alienate,  that  is,  an  interest  greater 
than  that  of  a  mortgagee,  and  it  presu poses 
a  mortgage  with  possession  or  followed  by 
possession  as  a  necessary  incident  or  in- 
gredient of  it,  because  a  mortgagee  who  is 
not  in  possession  cannot  transfer  possession 
to  another  or  give  what  he  does  not  possess. 
If  the  mortgagee  acquires  possession  in 
some  other  capacity,  the  transfer  of  posses- 
sion will  be  deemed  to  have  been  made  in 
the  capacity  in  which  it  .was  (rightly  or 
wrongly)  acquired  aad  such  acquisition 


NAUNIHAL  SINdH  V,  ALICE  GBOtttlNA  SK1NNBR. 

Thomas  Skinner  was     cannot  be  attributed  to  the  mortgage  where 


the  mortgage  itself  is  a  simple  mortgage  or 
a  mortgage  not  entitling  the  mortgagee  to 
possession  by  virtue  of  its  incidents  or 
terms. 

In  this  case  the  villages  in  question  were 
purchased   by  Seth  Lachmi  Das  at  auction 
sales  in  execution  of  certain    decrees  for 
money  against  Thomas  Brown  Skinner  who 
was  afterwards  found  to  have  had  only  a  life- 
interest  therein.    It  is  stated  on  behalf  of 
mortgagee  that  he  got  possession  after  the 
auction- purchases  in  lc>72,  but  the  plaintiff 
states  (para.  8  of  the  plaint;  that  the  mort- 
gagee used    to  manage  the  property  and 
make    collections  under  the  usufructuary 
mortgage  effected  by  Thomas  Brown  Skin- 
ner  011  the    10th   November   1867    in    lieu 
of  the  moneys  due  on  the  mortgage  of  the 
1st  September  1863,  and  certain  other  mort- 
gages, and  inasmuch  as  the  mortgage  of  the 
10th  November  1867,  cannot  be  deemed  to 
operate    beyond     the  lifetime  of    Thomas 
Brown  Skinner,  the  possession  of  the  mort- 
gage must  be  deemed   to  have   continued 
after  his  death  under  the  mortgage  of  the 
1st  September  1863  now  sought  to  be  re- 
deemed.    There   was  a  provision    in   the 
mortgage  deed  of  the  1st    September  1863 
entitling  the   mortgagee  to  obtain   posses- 
sion if  the  principal  and  interest  due  there- 
on were   not  regularly  paid.     During  the 
previous  litigation  which    went  up  to  the 
Privy  Council  it   does  not  appear  to  have 
been    disputed    that    the    mortgagee    was 
placed  in  possession  of  the  mortgaged  pro- 
perty by  Thomas  Brown  Skinner  under  the 
mortgage  of  the  luth   November  1867  and 
as    that  mortgage    failed   to  be  operative 
beyond    the  life  time  of    Thomas    Brown 
S'unner  who  died   in   1900,  it  follows  that 
the  possession  of  the  disputed  villages  qua 
the  mortgagee's  interest  must  be  deemed 
to  have  been  held  after  that  date  under  the 
mortgage  of  the  1st  September  1863,  which 
it  sought  to  re-pay.    The  mortgagee,  how- 
ever, believed  himself  to  have  acquired  the 
interest  of  the  mortgagor  by  his  purchases 
at  auction  sales  of  1872  and  1873  in  execu- 
tion of  the  decrees  for  money  held  by  cer- 
tain other  persons  against  Thomas  Brown 
Skinner;  and  the  real  position  of  the  rights 
of  the  parties  was  not   discovered  till  the 
correct  construction  to  be  placed  on   the 
Will  of  Thomas  Skinner  was  determined  by 
their  Lordships  of  the  Privy  Council   on 
the  4th    Mirch  1913.    Till  then  the  period 
of   limitation  allowed    by     Art.    134    of 


ZUKOOBAI  0,  BHAL9INOH. 


the  Indian  Limitation  Act  for  a  suit  for 
possession  of  immoveable  property  mort- 
gaged and  then  transferred  by  the  mort- 
gagee to  another  person  for  valuable  con- 
sideration had  not  expired  in  respect  of 
the  transfer  made  by  Seth  Lachhman  Das 
of  what  was  described  as  an  absolute  right 
in  favour  of  the  Nawab  of  Rampur  or  that 
made  by  the  latter  in  favour  of  Naunihal 
Singh.  The  object  of  Art.  134  is  to  protect 
transferees  for  value  who  have  purchased 
an  interest  larger  than  that  possessed  by 
the  transferor  and  have  been  allowed  to 
remain  in  possession  and  enjoyment  of  such 
larger  interest  for  a  period  of  more  than 
12  years.  In  the  matter  of  the  mortgaged 
properties  so  transferred,  it  controls  Art,  148 
of  the  Indian  Limitation  Act  in  the  same 
way  as  it  controls  Art.  140.  If  the  mort- 
gaged property  is  in  possession  not  of  the 
mortgagee  but  in  that  of  a  transferee  from 
him  who  claims  to  have  purchased  larger 
interest  therein  for  consideration,  what  a 
man  is  not  allowed  to  do  under  Art.  148 
of  the  Indian  Limitation  Act,  he  cannot  be 
allowed  to  do  under  Art.  140  after  such 
possession  has  been  held  for  more  than 
12  years.  The  question  is  not  free  from 
difficulty  but  in  view  of  the  equities  of 
the  case  and  the  long  and  continuous  liti- 
gation which  the  transferee  had  to  face  both 
before  his  possession  of  18  years  was  com- 
pleted and  after  it  there  is  no  ground  for 
allowing  the  remainderman  to  oust  him 
after  such  period  has  expired.  It  may  be 
that  Richard  Ross  Skinner  was  suing  for 
possession  of  the  disputed  property  as  much 
in  his  own  interest  as  that  of  his  succes- 
sors, but  the  order  refusing  to  allow  sub- 
stitution after  his  death  was  notchalleged 
and  allowed  to  become  final  and  a  re- 
mainderman who  sues  for  the  redemption 
of  the  mortgage  cannot  escape  the  conse- 
quences which  Art.  134  prescribes. 

In  regard  to  the  other  matters  raised  in 
either  of  these  appeals  I  have  nothing  to 
add  to  the  decision  of  my  learned  colleague 
with  which  1  am  in  agreement.  I  agree, 
therefore,  in  the  order  proposed. 
'  z.  K.  Decree  modified. 


[92 1.  0. 1926] 

NAOPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  229  OF  1924. 

Septembers,  1925. 

Present ;— Mr.  Kotval,  A.  J.  0. 

Musammat  ZUKOOBAI—  DEFENDANT — 

APPELLANT 

versus 
BHALSINGtL— PLAINTIFF— RESPONDENT. 

Set-off—  Contribution,  suit  for — Rent-decree  paid  off 
by  co-tenant — Suit  to  recover  thare  of  other  co-tenant 
—Demands  arising  out  of  different  transactions, 
whether  can  be  set  off — Plaintiff  managing  tenancy 
lands  as  agent  subsequent  to  period  included  in  rent- 
decide,  effect  of. 

Plaintiff  and  defendant  were  co-tenants  of  certain 
occupancy  fields.  The  landlord  sued  them  for  arrears 
of  rent  in  respect  of  'certain  years  and  obtained 
a  decree  which  the  plaintiff  paid  up.  Plaintiff 
then  sued  the  defendant  to  recover  the  latter's 
share  of  the  decretal  amount.  <*The  defendant  ad- 
mitted liability  m  respect  of  the  amount  claimed  but 
resisted  the  claim  on  the  ground  that  the  plaintiff 
waa  the  manager  of  the  tenancy  lands  and  was  liable 
to  account  for  the  profits  theieof  up  to  the  date  of 
the  institution  of  the  suit  and  could  not,  therefore*, 
sue  to  recover  what  could  only  be  an  item  of  debt 
against  the  defendant  in  the  account  to  be  rendered 
by  the  plaintiff  It  was  found  that  if  the  plaintiff 
was  managing  the  tenancy  lands  as  the  defendant's 
agent  such  management  commenced  after  the  expiry 
of  the  years  in  respect  of  which  the  rent-decree 
satisfied  by  the  plaintiff  had  been  obtained  by  the 
landlord- 

Held,  that  the  defendant  could  not  insist  on  having 
a  demand  not  arising  out  of  the  agency  treated  as 
a  debit  item  in  any  account  that  the  plaintiff  might 
have  to  render  in  respect  of  his  agency,  nor  could 
the  defendant  claim  an  equitable  set-off  in  respect 
of  such  demand,  since  the  demands  of  the  plaintiff 
and  the  defendant  had  not  arisen  out  of  the  same 
transaction,  [p.  75,  cols.  1  &  2  J 

Second  appeal  against  a  decree  of  the 
District  Judge,  Nimar,  dated  the  8th  of 
March  1924,  arising  out  of  the  decision  of 
the  Munsif,  Seoni  Mahva,  dated  the  6th  of 
October  1923. 

Mr.  M.  R.  Bobde,  for  the  Appellant. 

Mr.  S.  B.  Gokhale,  for  the   Respondent. 

JUDGMENT.— (Septemb-r  2nd,  1025). 
— The  plaintiff  and  the  defendant  are  co- 
tenants  of  certain  occupancy  fields.  The 
landlord  sued  them  for  arrears  of  rent 
for  the  last  kist  of  Sambat  1971,  both 
kists  of  1972  and  1973  and  the  first 
kist  of  1974  and  obtained  a  decree  which 
the  plaintiff  paid  up  by  instalments  be- 
tween the  10th  February  and  1st  May 
1920.  The  plaintiff  sues  the  defendant  for 
half  the  amount  with  interest.  The  defend- 
ant admitted  her  liability  for  half  the  rent 
but  resisted  the  claim  on  several  grounds 
of  which  the  one  now  material  is  that  the 
plaintiff  was  the  manager  of  the  fields, 
that  he  was  aa  such  liable  to  account  fgj 


[92  I.  0.  1926]  YADO  V.   AMB 

their  profits  up  to  the  date  of  the  institu- 
tion of  the  suit  and  that  he  could  not  sue 
to  recover  what  could  only  be  an  item  of 
debt  against  the  defendant  in  the  account 
to  be  rendered  by  him.  The  plaintiff  deni- 
ed that  he  was  in  possession  or  that  there 
were  any  profits  up  to  the  year  1977.  He 
admitted  that  he  was  liable  to  account  for 
the  profits  of  1977  and  subsequent  years 
but  denied  that  he  was  bound  to  treat  the 
payment  as  an  item  of  debit  in  an  account 
of  the  profits.  It  has  been  found  that  up 
to  Sambat  1976  the  fields  were  with  a 
stranger  who  had  been  put  in  possession 
by  the  defendant's  husband  and  the  plaint- 
iff and  that  there  were  no  profits  therefrom 
prior  to  that  year. 

The  Trial  Court  found  that  the  plaintiff 
was  not  the  manager  and  that  he  could  sue 
for  half  the  decretal  amount  paid  by  him 
without  accounting  for  the  profits  subse- 
quent to  1976  and  decreed  the  claim.  The 
lower  Appellate  Court  has  not  given  any 
specific  finding  that  the  plaintiff  was  not 
the  manager  but  has  upheld  the  Trial 
Court's  decision.  The  defendant  appeals. 

The  sole  question  in  appeal  is  whether 
the  plaintiff  could  only  recoup  himself  by 
debiting  the  amount  to  the  defendant  in 
an  account  of  the  profits  or  recover  it  by  a 
separate  suit.  If  the  plaintiff  was  the 
manager  on  behalf  of  the  defendant  it  is 
not  disputed  that  he  could  not  sue  sepa- 
rately for  the  amount  paid  by  him  on 
defendant's  behalf.  It  is,  however,  con- 
tended that  this  item  has  nothing  to  do 
with  the  question  of  accountability  as  a 
manager. 

It  in  clear  from  the  facts  of  the  case  that 
up  to  the  year  1976  the  plaintiff  was  not 
and  could  not  have  been  the  manager,  for 
the  land  having  been  put  in  possession  of 
a  third  party  for  the  satisfaction  of  a  debt 
by  the  consent  of  the  plaintiff  and  the  de- 
fendant's husband  there  was  nothing  to 
collect  as  income  and  nothing  to  manage. 
No  importance  can  be  attached  to  the  casual 
statement  in  the  plaintiff's  evidence  that 
he  "managed  the  lauds"  since  the  date  of 
the  award.  We  do  not  know  what  the  exact 
vernacular  word  used  by  the  plaintiff  which 
has  been  translated  as  "  managed "  was. 
In  any  case  it  cannot  be  construed  to  mean 
that  he  was  managing  the  lands  as  the 
agent  of  the  defendant.  Assuming  that 
after  1976,  the  plaintiff  was  acting  as  the 
agent  of  the  defendant  in  the  management 
of  the  land  the  defendant  cannot  insist  ou 


SHANKAR.  75 

having  a  demand  not  arising  out  of  the 
agency  treated  as  a  debit  item  in  any 
account  that  the  plaintiff  has  to  render. 
Nor  can  she  claim  an  equitable  set-off  in 
respect  of  it  since  the  demands  of  the 
plaintiff  and  the  defendant  cannot  be  said 
to  have  arisen  out  of  the  same  transaction. 
She  could  only  make  a  counter-claim  which 
she  has  not  done  here. 

The  decision  of  the  lower  Courts  is 
correct.  The  appeal  is  dismissed  with 
costs. 

(September  r)}  1925.)— The  respondent  files 
a  cross-objection  with  regard  to  the  interest 
which  is  disallowed  by  the  lower  Appellate 
Court.  He  contends  that  as  he  alleged  in 
the  plaint  that  a  demand  of  the  amount 
claimed  was  made  from  the  defendant  and 
that  it  was  not  taken  notice  of  by  her  and 
as  the  defendant  did  not  deny  the  allega- 
tion she  must  be  taken  to  have  admitted 
it.  The  plaint  states  that  demand  was 
made  several  times  but  gives  no  dates.  The 
plaintiff,  however,  files  a  postal  acknow- 
ledgement of  an  alleged  notice  which  is 
not  denied.  This  is  dated  the  25th  August 
1922.  The  suit  was  filed  on  the  8th  Feb- 
ruary 1923.  The  plaintiff  may,  therefore, 
be  allowed  inteiest  for  the  period  between 
these  two  dates.  No  interest  after  the  in- 
stitution of  the  suit  was  asked  for  and  none 
was  allowed  in  the  Trial  Court.  The  decree 
of  the  lower  Appellate  Court  will  be  modi- 
fied by  adding  interest  from  the  25th 
August  1922  to  the  8th  February  1923  at 
1  per  cent,  per  mensem  on  Rs.  542-J2-9 
Costs  of  the  objection  will  be  paid  and 
received  according  to  failure  and  success. 

z«  K-  Decree  modified. 

NAQPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  4  OF  19^5 

July  2S,  1925. 
Present:— TAr.  Findlay,  Officiating  J.  C. 

YADO  AND  OTHERS—  DEFENDANTS 

APPELLANTS 
versus 

AMBASHANKAR— PLAINTIFF- 
RESPONDENT. 

Causa  of  action— "Completed"  and  "conttnuoiw" 
causes  of  action—Prospective  damages— Damages  as 
mesne  profits,  when  recoverable. 

There  is  a  distinction  between  a  completed  cause 
of  action  which  may  yet  produce  damage  in  future 
and  a  continuous  cause  of  action  from  which  con- 
tinuous damage  steadily  flows,  [p.  76,  col.  2.] 

The  term  "prospective  damages"  is  applied  to  the 
damages  which  are  awarded  to  a  plaintiff  not  as  a 


70 


YADO  V.  AMBASHANKAB. 


[921.  O. 


compansation.  for  the  ascertained  loss  which  he  haa 
sustained  at  the  time  of  commencing  his  action  but 
ia  respect  of  loss  which,  it  may  reasonably  ba 
anticipated,  he  will  suffer  thereafter  in  consequence 
of  the  defendant's  act  or  omission  [p,  77,  col.  1.] 

A  plaintiff  is  entitled  to  have  prospective  damages 
assessed  only  when  the  cause  of  action  is  complete. 
In  the  case  of  a  continuous  cause  of  action  a  suit 
for  damages  will  lie  every  time  damages  accrue 
from  the  act,  but  prospective  damages  are  not  re- 
cove"  able,  for  the  cause  of  action  is  not  the  act  but 
the  damage  arising  therefrom,  [p,  77,  cols.  1  &  2,] 

A  suit,  therefore,  for  mesne  profits  as  damages 
against  a  trespasser  in  respect  of  agricultural  land 
ia  premature  if  it  is  brought  before  the  end  of  the 
agricultural  year  when  the  crops  are  gathered,  [p.  76, 
cols  1  &  2.] 

Appeal  against  a  decree  of  the  District 
Judge,  Nagpur,  dated  the  16th  December 
1924,  in  Civil  Appeal  No.  192  of  1924. 

Mr.  D.  W.  Kathale,  for  the  Appellants. 

Mr.  A.  V.  Wazalwar,  for  the  Respondent. 

JUDGMENT.— The  plaintiff-respond- 
ent Ambashankar  sued  the  defendant- 
appellants  Yado,  Chimna  and  Govinda  in 
the  Court  of  the  first  Subordinate  Judge, 
Nagpur,  for  Rs.  3,000  damages  in  respect  of 
his  having  been  forcibly  dispossessed  of  cer- 
tain sir  fields  on  the  18th  of  June  19-4.  He 
claimed  Rs  3,000  damages  on  the  ground 
that  this  would  have  been  the  net  profit  he 
might  have  obtained  from  the  fields  by 
self-cultivation  in  the  Fasli  year  1334. 

The  only  ground  we  are  now  concern- 
ed with  relates  to  a  plea  raised  on  behalf  of 
the  defendant-appellants  that  the  agricul- 
tural year  for  which  the  plaintiff  had  taken 
the  lease  had  not  ended  when  the  present 
Buit  was  filed,  and  the  crops  in  question 
had  not  even  been  gathered.  The  Judge 
of  the  first  Court  only  took  up  the  question 
of  the  prematurity  of  the  suit  and  came  to 
the  conclusion  that  the  plaintiffs  claim  was 
nothing  more  than  one  for  the  recovery  of 
mesne  profits,  brought  in  consequence  of 
ejectment  from  immoveable  property,  that 
the  suit  was  an  ordinary  one  under  Art.  109 
of  the  First  Schedule  of  the  Limitation  Act, 
that  time  thereunder  ran  until  the  cause  of 
action  was  complete,  and  that  the  profits 
had,  therefore,  not  accrued  due.  He  accord- 
ingly dismissed  the  plantiff's  suit.  The 
plaintiff  appealed  to  the  Court  of  the  Dis- 
trict Judge,  Nagpur,  and  this  Judge  re- 
versed the  finding  of  the  first  Court  on  the 
question  of  the  prematurity  of  the  suit  and 
remanded  for  the  case  for  re  trial  to  the  first 
Court  The  defendants  have  now  come  up 
on  appeal  against  the  judgment  of  tne  Dis- 
trict Judge  remanding  the  case. 

The   view   taken  by    the   lower  Appel- 


late Court  was  that  it  was  open  to  the  plaint- 
iff to  sue  for  compensation  for  having  been 
deprived  of  profits  which  he  would  havd 
derived  from  the  fields,  even  although  the 
Fasli  year  1334  had  not  expired.  The  Diflv 
trict  Judge  regarded  the  suit,  not  as  one  for 
mesne  profits  but  as  one  for  damages  for 
trespass  upon  land  and  he  further  held  that 
in  the  circumstances  of  the  case  the  plaint- 
iff was  entitled  to  claim  prospective  dam- 
ages. 

The  question  involved  in  this  appeal 
is  not  free  from  difficulty,  but  in  connection 
with  the  matter  of  damages  it  is  necessary 
to  distinguish  between  a  complete  cause  of 
action  which  may  yet  produce  fresh  damage 
in  the  future,  and  continuous  cause  of  ac- 
tion from  which  ,••  •;•  .  .-  ]-.-  .r:  steadily 
flows.  Best,  J.,  •  :,  .  - .  v.  Mellish 
(1)  remarks  as  follows  : — 

t(  When  the  cause  of  action  is  complete, 
when  the  whole  thing  has  but  one  neck, 
and  that  neck  has  been  cut  off  by  the  act 
of  the  defendant,  it  would  be  most  mischiev- 
ous to  say— it  would  be  increasing  litiga- 
tion to  say — you  shall  not  have  all  JTOU  are 
entitled  to  in  your  first  action,  but  you 
shall  be  driven  to  bring  a  second,  a  third,  or 
a  fourth  action  for  the  recovery  of  your 
damages." 

In  such  a  case  obviously,  prospective 
damages  can  be  allowed.  The  cause  of 
action  ia  thereon,  so  to  say,  complete  and 
concluded,  and  the  obvious  undesirability 
in  such  a  case  of  driving  the  plaintiff  to  a 
fresh  suit  for  each  and  every  result  which 
arises  from  the  completed  cause  of  action 
needs  no  emphasis.  Here,  however,  in  the 
present  instance  a  trespass  commenced  in 
June  1924  and  continues  from  day  to  day, 
we  thus  find  a  cause  of  action  which  is  not 
complete  ;  the  cause  of  action,  BO  to  speak, 
continues  and  goes  de  die  in  diem.  As- 
suming the  defendants  to  have  been  trespas- 
sers, for  all  one  knows  they  might  have 
repented  of  their  wrongful  action  long  be- 
fore the  crop  was  due  to  be  reaped.  The 
inconvenience  which  would  result  from  al- 
lowing in  a  case  like  the  present  daoihges, 
which  are  undoubtedly  based  on  the  calcula- 
tion that  the  fields  will  yield  a  normal  crop 
at  a  date  after  the  suit  was  filed,  is  too 
obvious  to  require  emphasising.  How  can 
we  be  sure  that  some  natural  calamity  might 
not  occur  in  the  meantime,  which  would 

(1)  (1824)2  Bing.  229  at  p  210,  133  E  R  2JH;  9 
Mowa  435;  3  L  J.  0.  P.  230;  By.  $  Mo^>,  66;  1  0.  &  l\ 
841;  27  R,  R,  331, 


[92  I.  0. 1926] 

totally  destroy  the  crop,  whether  it  was  in 
the  possession  of  the  rightful  owner  or  of 
the  trespasser?  In  Byjnath  Per  shad  v. 
Radhoo  Singh  (2)  Bay  ley  and  Macpherson, 
JJ.  held  that  where  the  amount  of  mesiie 
profits  cannot  be  ascertained  till  after  the 
end  of  the  year,  the  cause  of  action  does 
not  arise  till  then.  At  page  202  of  the  same 
Volume  [Koomaree  Dossee  v  Bama  Soon- 
duree  Dossee  (3)]  Phear  and  Hobhouse,  J  JM 
came  to  a  somewhat  opposite  conclusion 
but  the  circumstances  of  that  case  were 
highly  peculiar.  There  the  defendant  had 
cut  down  all  the  fruit-bearing  and  timber 
trees  on  the  piece  of  land  in  dispute  and 
had  carried  away  or  destroyed  by  brick- 
making  all  the  fertile  soil.  The  defendant, 
in  short,  had  not  only  caused  damage  to 
the  plaintiff  in  respect  of  past  time  but  had 
also  rendered  it  probable  in  the  highest 
degree  that  she  would  be  a  loser  in  her 
possession  of  the  land  in  future  time.  The 
circumstances  of  that  case  were  thusundoubt- 
edly  unique  and  not  at  all  parallel  to 
those  of  a  case  like  the  present  which  is  a 
normal  one  of  a  trespasser  entering  upon 
the  land,  sowing  it  and  hoping  to  reap  the 
crop. 

The  learned  District  Judge  his  relied 
on  certain  'remarks  made  in  Mayne  on 
Damages,  9th  Edition,  page  453,  and  on 
Halsbury's  Laws  of  England,  Vol.  X,  page 
306.  There  Halsbury  defines  "  prospective 
damages  "  as  follows  :  — 

"  The  term  *  prospective  damages  '  is 
applied  to  tfre  damages  which  are  awarded 
to  a  plaintiff,  not  as  compensation  for  the 
ascertained  loss  which  he  has  sustained  at 
the  time  of  commencing  his  action,  but  in 
respect  of  loss  which  it  may  reasonably  be 
anticipated  he  will  sutler  thereafter  in 
consequence  of  the  defendant's  act  or 
omission." 

At  page  310*  of  the  same  volume,  however, 
the  following  remarks  occur : — 

"A cause  of  action  in  respect  of  which 
a  plaintiff  is  entitled  to  have  the  prospec- 
tive damages  assessed  must  be  distinguish- 
ed from  a  continuing  cause  of  action,  that  is 
to  say,  a  cause  of  action  which  arises  from  the 
repetition  or  continuance  of  acts  or  omis- 
sions of  the  same  kind  as  that  for  which 
the  action  has  been  brought.  Similarly, 
Where  the  damage  consequent  on  an  act  or 

ft)  10  W.  R,  486;    2  B.  L.    R.  S.  N  10;   1  lad.  Dae. 
(N.  s.)  1021. 
J3)  10  W  R    202. r—*— 

*Pag«  of  Halgbury'a  Law*  of  Knglaud, —-[&<*•! 


tADO  V,  AMBASHANKAn, 


77 


omission  rather  than  the  act  or  omission 
iLself  is  actionable,  then,  as  the  action  is 
only  maintainable  in  respect  of  the  damage, 
or  is  not  maintainable  until  the  damage  is 
sustained,  an  action  will  lie  every  time 
damage  accrues  from  the  act.  In  this  case, 
prospective  damages  are  not  recoverable ; 
for  the  cause  of  action  is  not  the  act,  but 
the  damage  arising  therefrom." 

These  remarks  are,  in  my  opinion  fully 
applicable  to  the  circumstances  of  the  pre- 
sent case. 

I    have   been     referred  by    the   Pleader 
for  the  respondent  to   Ramasami  Reddiv. 
Authi  Lakshami  Ammal  (4).    Abdur  Rahim 
and  Ayyar,  JJ.,  therein  held  that  a  suit  for 
mesne  profits  by  a  plaintiff  who  had  been 
kept  out  of  possession  by  the  defendant,  does 
not,  for  purposes  of  limitation,   fall  within 
Art.  109  of  the    Limitation  Act,    when   no 
profits    have    been    actually    received    by 
defendant,  and   that    such  a  suit  is  one  for 
damages  under  Art.  39.    I  do  not  see  that 
this    case  has  any  direct  bearing    on  the 
question  which  is  before  me,  viz ,  whether 
or  not  the  plaintiff  in  the  present  case  is 
entitled  to    sue    for  prospective  damages, 
which  is,  in  effect,  what  he  has  chosen  to 
claim  in  the  present  case.     If  any  damages 
or  loss  had  been  caused  to  the  plaintiff  by 
the  time  of  his  bringing  the  suit,  he  would 
have  been   entitled  to  claim  these  in  the 
plaint  and    he    would  further  have    been 
entitled  eventually  under  0.  XX,  r.   12  (c), 
C.  P.   C.,   to  mesne  profits    even    in    the 
future       He     has,    however,    deliberately 
chosen  not   to    pursue   this  course  but  has 
claimed  a  lump  sum  of  damages  which  are 
admittedly  based,   and  can  only  be  based, 
on  the  assumption   that  if  he  had  been  in 
possession  of  the  land    in  this  particular 
year,  he  would  have  reaped  an  average  crop 
therefrom.  For  the  reasons  given  above  lam 
of  opinion  that  this  has,  in  reality,  amounted 
to  a  sirt  for  prospective  damages  and  these, 
as  I  have    already  shown,  the  plaintiff  is 
not  entitled  to  claim  in  the  circumstances 
of  the  case.    The  cause  of  action  was   not 
over  and  done  with,  it  was  still  continuing 
from  day  to  day  even  after  the  suit  was 
filed,  and  it  is  difficult  to  understand  why 
the  plaintiff  deliberately  took  this  mistaken 
course  of  action. 

For  the  result  the  plaintiff  has  only 
himself  to  blame.  The  judgment  and 
decree  of  the,  lower  Appellate  Court  are 

(I)  8  lad.  Gas.  162;  31  M»  502;  (1910)  M.  W.  N.  614; 
9  M,  L.  T.  35, 


78 


VBPtTRI  S0BBAYYA  V,  SECRETARY  6F  STATE  FOR  INDIA.  [92  t  0.  1926J 


accordingly  reversed  and  instead  a  decree 
will  issue  dismissing  the  plaintiffs  suit,  the 
plaintiff-respondent  mast  bear  the  defend- 
ant-appellants* costs  in  all  three  Courts. 
G.  R.  D,  Decree  reversed, 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  393  OF  1922. 

April],  1925. 

Present:  —  Mr.  Justice  Ramesam. 

VEPURI  8UBBAYYA  -PLAINTIFF  No.  1 

—  APPELLANT 

versus 

THE  SECRETARY  OF  STATE  FOR 

INDIA  IN  COUNCIL  KEPKESENTED 

BY  THE  COLLECTOR  OF  KISTNA— 

DEFENDANTS  Nos.  1  AND  2  —  RESPONDENTS. 

Water  rights  —  Natural  stream  flowing  into  tank  — 
Permanent  system  of  irrigation—  Persons  irrigating 
lands  from  tank,  rights  o/. 

A  natural  stream  passing  through  a  jungle  area 
fell  into  a  tank  and  then  flowed  out  in  a  defined 
channel  into  a  second  tank,  the  water  of  which  had 
been  used  by  the  plaintiff  for  more  than  60  years 
for  the  irrigation  of  his  lands.  The  outlet  from  the 
first  tank  had  fallen  into  disrepair  several  years  ago 
and  the  Government  then  proposed  to  repair  the 
breach  in  such  a  manner  as  to  stop  the  flow  of  the 
water  from  the  hrst  tank  into  the  channel  which 
conducted  the  water  into  the  second  tank  from  which 
the  plaintiff  had  been  irrigating  his  lands  ; 

Held,  (1)  that  the  channel  system  of  the  two  tanks 
having  formed  a  permanent  feature  of  the  irrigation 
system  of  the  country  and  not  being  intended  to  be 
temporary  and  the  plaintiff  having  utilized  water  for 
the  use  of  his  fields  for  more  than  60  years  he  was 
entitled  to  the  continuance  of  that  flow  into  the  second 
tank,  [p.  79,  col.  2.] 

(2)  that    the  Government  were  entitled    to   repair 
the  breach  m  the  outlet  from  the  lirst  tank  inasmuch 
as  there  was  nothing  to  show    that    in  spite  of  the 
lapse  of  many  years  since  the  date  of  the  breach  the 
Government  had  at  any  time  abandoned  the  idea  of 
rv.ito'in'ir  the  breach  or  that  they  intended  the  state 
of  dHH'ptii  to  be  permanent  ;    [ibid.] 

(3)  that  the  repairs  must,  however,  be  carried  out 
in  such  a  manner  as  not  to  interfere  with  the  usual 
supply    of  water  necessary  to  irrigate  the  plaintiff's 
lands  from  the  second  tank. 


Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Kistna 
at  Ellore,  in  A.  8.  No.  318  of  1920,  pre- 
ferred against  that  of  the  Court  6f  the 
Additional  District  Munsif,  Ellore,  in 
0.  S.  No.  13  of  1920,  (O.  S.  No,  917  of 
1916,  Principal  District  Munaifs  Court, 
Ellore). 

Mr.  B.  Somayya,  for  the  Appellant. 

The  Government  Pleader,  for  the  Re- 
spondents. 


JUDGMENT.— The  plaintiff  is  the 
appellant  before  me.  The  1st  respondent 
is  the  Secretary  of  State  for  India.  The 
plaintiff  is  the  owner  of  certain  in  am  sur- 
vey fields  in  the  village  of  Vemulapalli, 
namely,  Nos.  89,  97,  98,  100,  103  and  104. 
These  lands  are  irrigated  by  the  water  of 
a  tank  called  Mukkuvanigunta  which  is 
situated  in  Survey  No.  101.  The  plaintiff 
is  the  owner  of  the  tank  and  also  of  Survey 
No.  102.  The  tank  was  filled  by  the 
water  of  a  channel,  which  takes  its  rise 
from  the  hills  near  Gopavaram.  Gopava- 
ram  is  the  ^village  immediately  north 
of  the  village  of  Ganapavorigudem  and 
the  latter  village  is  immediately  north 
of  Vemulapalli.  All  the  three  villages 
originally  belonged  to  a  zemindar,  but  some 
time  before  the  middle  of  the  last  century 
the  zemindari  ceased  to  exist  and  all  the 
villages  passed  to  the  Government.  The 
channel  takes  a  definite  shape  according 
to  the  old  survey  plan  of  1864  (Ex.  XI)  in 
the  field  marked  No,  34  and  described  as 
a  j  angle.  It  then  passes  through  the  village 
of  Ganapavarigudem  until  it  reaches  a  tank 
called  Jangamgunta  which  was  in  the  field 
No.  45  of  that  plan.  It  escapes  through  a 
southern,  outlet  of  the  said  tank  and  ulti- 
mately falls  into  Mukkuvanigunta  belong- 
ing to  the  plaintiff. 

The  District  Munsif  found  that  the  whole 
course  of  the  channel  as  described  by  me 
above  was  a  natural  stream  and  had  existed 
for  more  than  70  years.  The  outlet  of 
Jangamgunta  through  which  the  water  of 
the  channel  continues  to  ilow  southwards 
was  breached.  The  District  Munsif  found 
that  the  breach  had  existed  for  over  60 
years  from  sometime  prior  to  the  vesting 
of  the  properties  in  the  Government. 

The  Subordinate  Judge  on  appeal  also 
found  that  the  portion  of  the  channel  south 
of  Jangamgunta  and  north  of  Mukkuvani- 
gunta had  been  existing  during  the  last 
60  or  70  years.  An  examination  of  the 
whole  record  shows  that  it  is  impossible 
to  say  when  the  channel  and  two  tanks 
began  to  exist  in  the  form  *  in  which  they 
now  exist.  All  that  can  be  said  is  that 
they  must  have  existed  in  this  shape  for 
more  than  70  years  and  have  become  a  per- 
manent topographical  feature.  After  the 
breach  of  the  southern  outlet  of  Jangam- 
gunta, that  tank  lost  its  original  shape: 
so  far  as  the  western  side  is  concerned  no 
water  could  be  stored  in  it,  but  on  the 
western  side  a  poud  was  formed  which 


VBPURI  SUBBAYYA  V.  SECRETARY  OP  STATE  FOR  INDIA. 


[92  I.  0. 1926] 

formed  the  irrigation  source  to  the  lands 
of  Ganapavarigudem.    This  state  of  things, 
namely,  the  tank   being  in  a  state  of  dis- 
repair, (the  breach  of  the  southern  outlet 
not  being  repaired)  must  have  led  to  the  flow 
of  more  water  into  Mukkuvanigunta  than 
was  originally  intended ;    but    that  it  did 
flow  and  was  utilized  by  the  plaintiff  for  the 
irrigation  of  Survey  Nos.  89,  97,  98,    100, 
103  and  104  for  more  than  60  years  is  found 
by  the  Courts  below  and  cannot  be  now 
questioned  in  second  appeal.  I  am  not  satis- 
fied with  the  evidence  that  it  was  utilised 
for  the  irrigation  of  Survey   No.   102  for 
a  similar  period  as  the  appellant  claimed 
before  me  and  this  is  the  finding  of  the 
Courts  below.    The  plaintiff  has,  therefore, 
acquired  an  easement  by  which  he  is  entitl- 
ed to    supply    of   enough   water   for    the 
irrigation  of  his  said  lands  (excluding  Sur- 
vey No.  102). 

It  has  been  suggested  by  the  learned 
Government  Pleader  that  the  plaintiff 
could  not  acquire  an  easement  as  the  por- 
tion of  the  channel  beyond  Jangamgunta 
carried  only  the  surplus  waters  of  that  tank 
and  he  relied  on  Wood  v.  Wand  (1),  Ark- 
wright  v.  Cell  (2),  Chamber  Colliery  Co.  v. 
Hopwood  (3),  Mason  v.  Shrewsbury  and  Here- 
ford Railway  Company  (4)  and  Burrows  v. 
Lang  (5).  But  I  do  not  think  these  cases 
apply.  I  have  already  observed  that  the 
channel  was  really  a  small  natural  stream 
and  though  Jangamgunta  tank  is  probably 
an  artificial  formation,  it  does  not  mean  that 
the  channel  south  of  it  is  artificial  and 
consisted  only  of  the  surplus  waters  of  the 
tank,  for,  before  the  formation  of  the  tank, 
the  natural  stream  must  have  continued  to 
flow  southwards.  The  effect  of  the  tank 
could  be  only  to  dam  up  the  waters  until 
they  reached  a  certain  height  and  then  to 
permit  their  escape.  But  even  if  it  were 
not  so,  I  think  the  principle  of  the  decision 
in  Ramessur  Persad  Narain  Singh  v. 
Koonj  Behary  Pattuk  (6)  applies.  The 

(1)  (1849)  3  Ex  748;    18  L.  J.    Kx    305;  13  Jur.  472, 
154  E.  R.  1047;  77  R.R.809. 

(2)  (1839)  5  M.  &  W.  203;  2  H,  &  H.  17;  8  L.  J.  Ex. 
201;52RtR  671;  151  E.  R.  87, 

(3)  1886)  32  Oh.  D.  549;  55  L.  J.   Ch,  859;    55  L.  T 
449;  51  J,  P.  164. 

(4)  (1871)  6  Q.  B.  578  at  pp.  584  587;  40  L.  J.  Q.  1). 
293;  25  L.  T.  239;  20  W.R.14. 

(5)  (1901)  2  Ch.  502;  70  L.  J.  Ch.  607;  49  W.  R.  564; 
84  L.  T,  623;  17  T.  L.  R.  514. 

(6)  4  C.  633;  6  I.  A.  33;  3  Sar,  P.  C,  J,  856;  3  Ind. 
Jur.  179;  2  Shome  L,  R,  194;  2  Ind.  Dec,  (N.  B.)  402 
(P.  0.). 


channel  system  and  the  two  tanks  having 
loimed  a  permanent  feature  of  the  country 
and  not  being  intended  to  be  temporary 
and  the  plaintiff  having  utilised  the  water 
for  the  use  of  his  fields  for  more    than 
60  years  he  is  entitled  to   the  continuance 
of  that  flow.    In  making  this  observation,  I 
do  not  mean  to   say  that  the   Government 
is  not  entitled  to  repair  the  breach  at  A. 
Though  this  breach  is  continued  for  more 
than  60  years,  I  do  not  think  it  can  be  said 
that  the    Government  at  any   time  aban- 
doned the  idea  of  restoring  the  breach  or 
that,  they  intended  the  state  of  disrepair  to 
be  permanent.    The  tank  was  not  shown  in 
Ex,  A,  the  survey  plan  of  1896,  but  the  cor- 
responding Diglott  Register  Ex.  B  shows  that 
Survey  No.  44/3  and  Survey  No.  45  corres- 
ponded to  the  old  Survey  No.  45  and  were  de- 
scribed in  the  last  column  as  Jangamgunta. 
I  think  the  Government  are  entitled  to  repair 
their  tank  and  their  channel  and  there  is 
no  duty  on    them  to  leave    them  as   they 
existed  in  recent  times.    It  is  also  unneces- 
sary for  me  to  discuss  the  effect  of  Fischer 
v.    Secretary  of  State  for  India    (7),    for, 
though  the  Government  have  got  the  right 
of  repairing  their  own  channels  and  tanks, 
they  cannot  do  this  so  as  to  prejudice  exist- 
ing rights,  but  so  long  as  the  plaintiffs'  right 
of  irrigating  his  mam  lands  already  men- 
tioned is  amply  protected,  it  seems  to  me 
that  a  Court  has  no  right  of  dictating  to 
Government  in  what    manner  they  shall 
carry  out  the  repairs.     Nor  is  the  plaintiff 
entitled  to  insist  that  the  outlet  of  the  re- 
paired tank  should  be  at  the  exact  identical 
spot  where  it  existed  before. 

I  am  not  satisfied   that  this  is  a  case  in 
which  it  is  enough  to  simply  declare  the 
plaintiff's  right  to  obtain  enough  of  water 
for  irrigating  20  acres  of  land  under  Muk- 
kuvanigunta ;    I  think  it  is  necessary  to 
add  an  injunction  to  the  declaration  grant- 
ed by  the  Subordinate  Judge,  though    I 
cannoi  agree  with  the  District  Munsif  that 
it  need  be  in  the  very  wide  terms  granted 
by  him.    I  direct  the  modification  of  the 
decree  of  the  Subordinate  Judge  by  grant- 
ing, in  addition  to  the  declaration  given 
by   him,  an  injunction  directing  the  1st 
defendant  to  carry  out  his  works  in  such 
a  manner  as  not  to  interfere  with  the  usual 
supply  of  water  necessary   to  irrigate  20 
acres  of  land   belonging  to   the  plaintiff 
under  Mukkuvanigunta. 

(7)  2  Ind.  Cas,  325;  32  M,  141;  5  M,  L,  T.  U9;  19  M, 
L.  J.  131* 


fcO  KANRAI  t?. 

Each  party  to  bear  its  own  costs  in  this 
Court.  The  order  of  the  Courts  below  will 
stand. 

V.  N,  V. 

2.  K.  Decree  'modified. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  294  OF  1924. 

July  11,  1925. 

Present:— Mr.  Findlay,  Officiating  J.  C. 
Musammat  KANKAI— PLAINTIFF- 
APPELLANT 

versus 

TIKARAM— DEFENDANT— RESPONDENT. 
Landlord    and  tenant— Tenancy,    benami,    whether 
leqal-— Holding  cultivated  by  real  tenant  -Benamidar, 
disappearance  of —Abandonment- Landlord,    whether 
can  forfeit  tenancy. 

Though  a  contract  of  tenancy  is  a  personal  one,  a 
recorded  tenant  may  hold  land  benami  for  some  other 
person,  and  if  there  are  circumstances  to  show  the 
landlord  knew  that  the  recorded  tenant  was  merely 
a  benamidar,  he  cannot  treat  the  holding  as  abandon- 
ed if  the  benamidar  disappears  and  the  land  is  culti- 
vated by  the  person  for  whom  he  was  a  benami.  [p.  81, 

C°  Appeal  against  a  decree  of  the  District 
Judge,  Bhandara,  dated  the  7th  April  1924, 
in  Civil  Appeal  No.  86  of  1923. 

Mr.  J.  C.  Ghose,  for  the  Appellant, 

Mr.  V.  D.  Kolte,  for  the  Respondent. 

JUDGMENT.— The  plaintiff- respond- 
ent Tikaram,  the  zemindar  of  Uonza  Kirna- 
pur  (Balaghat),  sued  the  defendant- appel- 
lant Musammat  Kankai  for  her  ^ejectment 
from  an  occupancy  holding  situated  in 
Mouza  Jamrhi,  his  case  being  that  the 
tenant  of  the  holding  in  question  was  one 
Mahipal  Lala  who  had  abandoned  it  in  the 
year  1922  23.  The  Subordinate  Judge  found 
that  Musammat  Kankai  had  been  in  pos- 
session of  the  land  but  that  the  Court  of 
Wards  had  made  Mahipal  Lala  tenant 
thereof.  Mahipal  Lala,  however,  had  never 
cultivated  the  land  and  inSuitNo.96  (copy  of 
judgment  being  Ex.  D.-5}Musammat  Kankai 
had  obtained  a  decree  against  Mahipal 
Lala  to  the  effect  that  she  was  the  tenant 
of  the  land  in  question.  The  finding  in 
that  suit  was  that  Mahipal  Lala,  when  the 
land  was  brought  to  sale  for  arrears  of  rent, 
had  bought  it  on  behalf  of  the  plaintiff  and 
that  the  transaction  was,  in  fact  a  benami 
•one.  The  first  Court  accordingly  dismissed 
•the  suit  of  the  plaintiff, 

The  plaintiff  appealed  to  the   Court  of 


f IKARAM.  [§2 1.  0.  1926] 

the  District  Judge,  Bhandara,  who  reversed 
the  judgment  and  decree  of  the  first  Court. 
The  learned  District  Judge  gave  a  definite 
finding  to  the  effect  that  he  had  agreed 
with  the  Judge  of  the  first  Court  that  the 
facts  and  the  cirumstances  proved  in  the 
case  clearly  showed  that  the  defendant 
was  in  possession  of  the  land  in  suit  all 
along  and  that  Mahipal  Lala,  who  was  her 
former  servant,  was  "nominally  the  record- 
ed tenant  of  the  land.1*  The  learned  Dis- 
trict Judge  seems  to  have  been  influenced 
by  the  result  of  the  Suit  No.  8  of  1919 
between  Mahipal  Lala  and  Bajirao,  the  son 
of  Musammat  Kankai.  In  that  suit  Bajirao 
had  admitted  that  Mahipal  Lala  was  the 
tenant  of  the  land,  but  pleaded  that  he  had 
obtained  a  lease  thereof  for  an  indefinite 
period.  The  Additional  Subordinate  Judge, 
who  had  dealt  with  this  case,  held  that 
there  had  been  a  lease  for  one  year  only 
and  accordingly  passed  a  decree  in  favour 
of  Mahipal  Lala. 

In  the  peculiar  circumstances  of  this 
case  I  do  not  think  much  significance  can 
be  attached  to  the  admission  then  made  by 
Bajirao  that  Mahipal  Lala  was  the  tenant 
of  the  holding.  That  admission  certainly 
cannot  bind  the  present  appellant  Musam- 
mat Kankai.  The  judgment  in  ISuit  No.  96 
of  1921  (Ex.  D.  5),  it  is  needless  to  say,  is 
not  res  judicata  in  the  present  case,  but  it 
is  nevertheless  of  great  importance.  That 
suit  was  allowed  to  proceed  ex  parte  by  the 
then  defendant  Mahipal  Lala  and  prima 
facie  satisfactory  evidence  was  given  to  the 
effect  that  Musammat  Kankai  and  not 
Mahipal  Lala  was  the  real  tenant  of  the  land 
in  question.  It  is  true  that  in  the  present 
case  the  defendant-appellant  was  foolish  or 
ill-advised  enough  to  offer  a  stupid  plea  to 
the  effect  that  Mahipal  Lala  had  obtained 
a  lease  of  the  land  fraudulently.  But  it 
seems  to  me  perfectly  clear  on  the  finding, 
not  only  of  the  first  Court  but  also  of  the 
lower  Appellate  Court,  that  Mahipal  Lala 
was,  in  fact,  holding  the  land  benami  on 
account  of  the  present  defendant-appellant. 
The  learned  District  Judge  himself  remark- 
ed as  follows : — 

"Although  'there  is  nothing  to  show  who 
actually  paid  rent  for  the  holding,  I  agree 
with  the  learned  Subordinate  Judge  in 
holding  that  the  facts  and  the  circumstances 
proved  in  the  case  clearly  show  that  the 
defendant-respondent  was  in  possession  of 
the  land  in  suit  all  along  and  that  Mahipal 


[9ZI.C.  1928J 

Lala  who  was  her  former  servant  was  nomi- 
nally the  recorded  tenant  of  the  land." 

In  spite  of  this  finding  the  learned  Dis- 
trict Judge  went  on  to  hold  that  there  was 
no  evidence  to  show  that  MusammatK&nkai 
was  ever  the  real  tenant  of  the  land.  It 
iaacit  easy, to,  understand  on  the  findings 
91  the,  learned  District  Judge  who  was  the 
real  tenant,  because  lie  has  already  held  in 
Kis  Judgment  that  Mahipal  Lala  was  only 
the  nominal  tenant,  by  which,  it  must  be 
prcd-jmert,  he  meant  that  Mahipal  Lala  was 
holding  the  tenancy  benami  on  account  of 
Musammat ,  ftankai.  On  the  view  taken  by 
the  District  Judge,  however,  he  came  to 
the  conclusion  that  tenancy  being  a  personal 
contract  and  no  such  contract  having  exist- 
ed t>Qtween  Musammat  Kankai  and  the 
landlord,  the  latter  was  entitled  entirely  to 
disregard  her  and  to  accept  Mahipal  Lala's 
implied  surrender  of  the  land. 

For  my  own  part,  in  the  present  case  it 
seeing  to  me  that  one  cannot  overlook  the 
significance  of  the  hirigmcnl  and  decree  in 
Suit  No.  96  of  19-JI  ,Kx*.  D.-5  and  D.-G), 
Which  definitely  feettfe  that  Musammat 
Kankai  as  against  Mahipal  Lala  was  the 
tfeh&nt  of  the  land  in  question.  In  Kutha- 
freritmal  ftdjali  v,  Secretary  of  State  for 
ipdia  (1).  Ayyar  and  Wallis,  JJ.,  remarked 
a§  follows : — 

"The  Icidiiift  authority  opposed  to  this 
vtew1  £s  Nand  Kishore  Lai  v.  Ahmad  Ata 
(2).  The  decision  in  thai  case  that  a  be- 
namidar i&  entitled  to  sue  for  land  in  his 
oWn  name  is  based  on  the  view  that  the 
legal  estate  is  vested  in  him.  Where  the 
le&al  estate  is  vested  in  the  benamidar,  he 
is  in  fact  a  trustee  and  as  such  entitled  to 
sue,  but  we  do  not  think  that  the  effect  of 
a  purchase  of  land  benami  according  to 
the  practice  in  this  country  is  in  all  cases 
to  vest  the  legal  estate  in  the  benamidar 
rind  constitute  him  a  trustee.  For  instance 
where,  a's  often  happens,  land  is  purchased 
benami  in  the  name  of  an  infant  soil  it 
seems  impossible  to  hold  that  the  land  is 
Vested  in  him,  as  trustee.  In  the  present 
cas&  it  is  found  that  the  benamidar  was  a 
pecm  in  the  service  of  th^  real  purchaser, 
and  \Ve  do  not  think  that  the  mere  fact 
that  hi  t>J(t  at  the  auction,  And  that  the 
grant  w*s  thatfe  By  Gove 
name  madfe  hf in  b  trustee  sb 


KANKAI  V.  TIKARAM. 

him  to  sue. 


in  his 
entitle 


rh  50  Sfif. 
2   18  A, 
751. 


at  pp.  247,  243;  17  M,  U  J.  174. 
;  A.  W,  N.  ^1895)  160;  8  Ind,  Dec.  (x  B.) 


6 


cf.  also  Petherpermal  Chet- 
ty  v.  Muniandy  Senai  (3). 

In  the  present  case  it  seems  to   me   that 
it  is,  in  reality,  the  plaintiff-respondent  who 
has  attempted  to  obtain  an  unfair  nch.-mtnge 
out    of  the  benami    transaction.     Mahipal 
Lala  has    disappeared    and     knowing  all 
these  circumstances  the  plaintiff  disturbed 
the  long  continued  possession  of  Musammat 
Kankai  or  of  her  son    on  her  behalf.    A 
somewhat    similar  case  is  that  in  Radha 
Bullub  Gossain   v.  Kishen  Gobind  Gossain 
(4)  and   in  the  present  case  it  seems  to  me 
that  the    real  tenant  of  the  land  is  undoubt- 
edly Musammat  Kankai  and  that  she  was 
not  liable  to  ejectment.    It  is  true  that  the 
contract  of  tenancy  is  a  personal  one  :    cf. 
Sarjerao  v.  Tukaram  (5)  and  Saiyad    Noor 
v.  Ramji  Patil  (6),  but  in    the  present  case 
Mahipal  Lala  seems  to  have  been  nothing 
more  than  an  alias  for  Musammat  Kankai. 
Nor  can  it  be  argued  with  any  degree 
of  plausibility  that  the  landlord  was  un- 
aware of  the  real  position.    The  defendant 
and  plaintiff     are    related.      The  plaintiff 
lives  close    by  the  village  in  question  and 
must    have  seen  'Bajirao  cultivating  th6 
greater  part  of  the  land    for  many  years, 
in  other  words  he  must  have  been  perfectly 
aware  of  the  benami  nature  of  the  transac- 
tion so  far  as  the  formal  entry  of  Mahipal 
Lala  as  tenant  is  concerned.    It  eeems  to 
me,  in  the  circumstances,  therefore,  quiU 
unreasonable  to  urge   that  Mahipal    Lala 
having  disappeared  the  plaintiff-  respondent 
was  entitled  to     eject  Musammat  Kankai 
from  the  land.    It  is  absurd  to  suppose  that 
the  plaintiff  was  not  aware  of  the  result  of 
Suit  No.  96  of  1921  already  referred  to. 

For  these  reasons  I  am  of  opinion 
that  Musammat  Kankai  was  the  real  tenant 
of  the  land  and  that  the  landlord  must 
have  been  well  aware  of  the  benami  •  trans* 
action  under  which  Mahipal  Lala's  name 
was  inserted  as  nominal  tenant  instead  of 
the  jpamf*  of  Musammat  Kankai,  and  further 
it  seems  to  ine  that  it  would  be  contrary 
to  both  law  and  equity  to  allow  the  landlord 
now  to  take  advantage  of  this  bqnami  trans* 
action  in  the  way  he  desires  to  do.  < 

The  ;•:  :*•!.<•:.*  u-.  I  decree  of  the  first 
Court  w:.'i  uw-r  iiraiy  be  restored  and 


107, 


(3)  35  C,  551  at  p.  558;  12  C.  W  N  562;  5  A. 
290;  7  C,  JL  J.  528;  11  Bur.  L.  R.  108;  10  Bom.  L,ij&, 
590;  18  M.  L.  J.  277;  4  M.  L.  T  12;  4  L.  B.  K,  2661,35 

i.  A,  98  (P.  o).-  -r; 

(4^  9  W.  R,  71. 

(5)  4ft  Jnd,  Gas.  244;  14  N,  L,  R, 

(6)  »  C,  P.  L,  R,  158, 


KANIZA  V.  HASAN  AHMAD  KHAtf. 


of -the  lower  Appellate  Court  will  be  revers- 
ed and  a  decree  will  issue  dismissing  the 
plaintiff's  suit.  The  plaintiff-respondent 
will  bear  the  defendant-appellants1  costs  in 
all  three  Courts. 

G.  K.  D.  Decree  reversed. 


OUDH  CHIEF  COURT. 

FIRST  CiviL  APPEAL  No.  17  OF  1924. 

November  24,  1925. 
Present:— Mr.  Justice  Ashworth  and 

Mr.  Justice  Raza. 

Musammat  KANIZA  AND  OTHERS  — 

PLAINTIFFS—APPELLANTS 

versus 

HASAN  AHMAD  KHAN  AND  OTHERS- 
DEFENDANTS — RESPONDENTS. 

Muhammadan  Law —Marriage  with  wife's  sister-  • 
Issue,  whether  legitimate— Child  born  siv  months  after 
fasid  marriage — Presumption  of  legitimacy— fividince 
Act  (I  of  1X72),  s.  112,  application  of. 

Muhammadan  Law  does  not  place  union         "  „"  \ 
Law  does,  in  two  categories,  valid    and   . 
in  three  catagones  of  void  ab  imtio  (batil)  forbidden 
but  not  enthely  void  if    consummated   (fasid),  and 
lastly  valid,    [p.  83,  col  1  j 

Under  the  Muhammadan  Law,  the  marriage  of  a 
man  to  a  sister  of  his  existing  wife,  ia  fasid  but  not 
batil.  Such  a  marriage,  though  invalid  for  certain 
purposes,  ia  valid  for  the  purpose  of  legitimatizing 
the  issue,  [p.  82,  col  2.J 

Tajbi  Abalal  v.  Mowlakhan  Alikhan,  29  Ind  Cas 
603,  41  B.  485,  19  Bom.  L.  R.  300,  followed. 

Aiztmnissa  Khatoon  v  Karimunmssa  Khatoon,  23  0. 
130,  12  Ind.  Dec.  (N.  s)  87,  dissented  from. 

Under  the  presumption  of  Muhammadan  Law,  in 
the  case  of  a  fasid  marriage,  a  child  born  on  the 
expiry  of  BIX  months  of  copula  is  to  bo  regarded  as 
legitimate,  [p  84,  col.  L] 

Section  112  of  the  Evidence  Act  cannot  be  held 
applicable  to  marriages  under  the  Muhammadan  Law. 
At  any  rate  the  section  cannot  have  any  application 
to  a  fasid  marriage  under  that  law,  [p  83,  col,  2J 

First  appeal  from  the  judgment  and 
decree  of  the  Subordinate  Judge,  Gonda, 
dated  the  2lth  of  November  1923, 

Messrs.  M.  Wasimand  Mahomed  Ayub, 
for  the  Appellants. 

Messrs.  Naimullah  and  Niamatullah,  for 
the  Respondents. 

JUDGMENT,— This  first  appeal  is  a 
plaintiff's  appeal.  It  arises  out  of  a  suit 
brought  by  Musammat  Kaniza  alleged 
daughter  and  Musammat  Chinka  alleged 
widow  of  one  Abdul  Sattar  Khan  against 
Abdul  Razzak  Khan  nephew  of  the  deceas- 
ed. The  parties  are  Sunnis(Hanafis).  The 
plaint  only  set  up  any  title  on  behalf  of 
plaintiff. No,  2  in,  default  of  the  claim  of 


[92  I.  0.  1926] 


plaintiff  No.  1  succeeding  in  part  or  in 
whole.  We  shall  decree  the  claim  of  the 
plaintiff  No.  1  in  part.  So  far,  therefore,  as 
the  lowei  Court  has  dismissed  the  claim  of 
plaintiff  No.  2  that  decision  must  be  up- 
held end  her  appeal  di&miseed.  The  case 
set  up  for  plaintiff  No.  1,  that  is  the  daughter, 
is  that  by  a  custom  in  the  family  of  the  de- 
ceased the  daughter  succeeds  to  her  father's 
estate  to  the  exclusion  of  any  collateral, 
and  alternatively  that  in  the  absence  of  any 
such  custom  under  ordinary  Muhammadan 
Law  the  daughter  is  entitled  to  succeed  to 
a  moiety  as  against  the  nephew.  The  lowsr 
Court  dismissed  the  plaintiff's  suit  on  the 
ground  that  her  mother  was  not  the  legally 
wedded  wife  of  the  deceased,  and  that  the 
plaintiff  although  a  daugther  of  the  deceas- 
ed was  illegitimate.  It  also  held  that  there 
was  not  evideuce  to  support  the  allegation 
of  the  custom  set  up. 

It  is  common  ground  that  the  deceased 
was  married  to  Musammat  Mehrbibi  the 
sister  of  Musammat  Chinka,  the  mother  of 
the  plaintiff  No.  1,  and  that  he  contracted 
a  second  marriage  with  Musammat  Chinka. 
In  the  lower  Court  it  was  maintained 
that  the  deceased  had  divorced  Musammat 
Mehrbibi  before  he  married  Musammat 
Chinka,  but  this  plea  was  rejected  by  the 
lower  Court  and  the  finding  to  this  effect 
is  not  impugned  in  this  appeal.  It  was 
urged,  however,  and  is  urged  in  this  appeal, 
that  notwithstanding  that  the  deceased 
married  Musammat  Chinka  without  first 
divorcing  her  sister  the  plaintiff  under  s.  112 
of  the  Evidence  Act  and  under  Muhammadan 
Law  is  to  be  regarded  as  a  legitimate 
daughter.  Section*112  of  the  Evidence  Act 
provides  that 

"  Any  person  born  during  the  continu- 
ance of  a  valid  marriage  between  his  (or  her) 
mother  and  any  man... shall  be  conclusive 
proof  that  he  or  she  is  the  legitimate  son 
or  daughter  of  that  man,  unless  it  can  be 
shown  that  the  parties  to  the  marriage  had 
no  access  to  each  other  at  any  time  when  he 
or  she  could  have  been  begotten." 

For  the  respondent  it  ia  urged  that  under 
Muhammadan  Law  the  marriage  of  a  man  to 
a  sister  of  hisexisting  wife  is  invalid.  For  the 
appellants  it  is  urged  that  such  a  marriage, 
though  invalid  for  certain  purposes  is  valid 
under  Muhammadan  Law  for  the  purpose  of 
Icgitinmti/.inj;  the  issue.  Inthe  case  of  Aizun- 
niasa  Khatoon  v.  Karimunnissa  Khatoon 
(1)  it  was  held  by  a  Bench  of  the  Calcutta, 
(1)  23  0, 130;  12  lad.  Dec.  (K,  •.)  87, 


[92  L  0. 1926] 


V   HASAN  AIlMAD 


83 


High  Court  that  under  the  Muhammadan 
Law  marriage  with  the  sister  of  a  wife 
who  is  legally  married  is  void,  and  that 
the  children  of  such  ir.-iniiiiro  are  illegi- 
timate and  cannot  inherit.  This  decision 
was  considered  and  dissented  from  by 
a  Bench  of  the  Bombay  High  Court,  Tajbi 
Abalal  v.  Mowla  Khan  Alikhah  (2)  It  was 
there  held  that,  Muhammadan  Law  does  not 
place  unions  as  English  Law  does  in  two 
categories,  valid,  and  invalid,  but  in  three 
catagories  of  void  ab  initio  (batil)  fobidden 
but  not  entirely  void  if  consummated  (fasid] 
and  lastly  valid.  The  Calcutta  ruling  was 
considered  in  Ch.  VII  of  Vol.  II  of  Ameer  Alfs 
Muhammadan  Law,  4th  Edition,  and  reasons 
were  set  forth  at  length  for  holding  that  the 
decision  of  the  Calcutta  High  Court  was 
wrong.  The  Bombay  ruling  agrees  with  Mr. 
Ameer  Ali.  The  Calcutta  ruling  is  also  held 
to  be  incorrect  by  Mr.  Tyabji  on  page  162 
of  the  2nd  Edition  of  his  Principles  of 
Muhammadan  Law.  The  effect  of  the  Bombay 
ruling  is  succinctly  expressed  by  Mr.  Ameer 
Ali  in  the  following  words  : 

"There  is  a  great  difference  between  a 
marriage  which  is  void  ab  iniiio  (batil)  and 
one  which  is  invalid  (fasid).  If  a  nian  were 
to  cpntract  a  marriage  with  a  woman  related 
to  him  within  the  prohibited  degrees,  the 
marriage  would  be  void  ab  initio.  Under 
the  Hanafi  Law,  the  children  of  such  an 
union  would  not  have  the  status  of  legitimacy 
unless  the  man  was  wholly  unaware  of  the 
relationship  or  he  was  the  subject  of  ghurur 
or  deception.  For  example,  if  a  man  were 
to  marry  a  woman  related  to  him  within 
the  prohibited  degrees,  on  the  representa- 
tion that  she  was  not  so  related,  and  the 
marriage  was  consummated,  the  issue  of  such 
an  union  would  be  legitimate. 

"But  it  is  different  in  the  case  of  an  invalid 
marriage.  An  invalid  marriage  is  one  where 
the  parties  do  not  labour  under  an  inher- 
ent incapacity  or  absolute  bar  or  where  the 
disability  is  such  as  can  be  removed  at  any 
time.  The  issue  of  such  unions  are  legiti- 
mate. 

'"An  invalid  marriage*  says  the  fatawai 
alamgiri  is  like  a  valid  marriage  in  some 
of  its  effects,  o»e  of  which  is  the  establish- 
ment of  parentage.1* 

uln  these  cases  the  six  months  will  run 
from  a  copula  and  not  from  marriage." 

The  last  line  of  this  passage  refers  to  the 
rule  of  Muhammadan  Law  that  a  child  born 

(2)  39  fed.  Oas.  60S;  41  B,  485;  19  Bom,  L>  B.  300. 


after  the  lapse  of  six  months  from  marriage, 
or  in  the  case  of  a  fasid  marriage,  from 
copula,  will  be  deemed  legitimate  even 
though  conception  may  have  taken  place 
before  marriage.  We  are  not  disposed  to 
re-hearse  again  the  arguments  respectively 
in  favour  of  the  divergent  views  of  the 
Calcutta  and  Bombay  High  Courts.  We  con- 
sider that  the  argument  set  up  by  the 
Bombay  High  Court  and  by  the  authorities 
quoted  against  the  Calcutta  view,  hold  the 
field  nnd  that  the  Bombay  ruling  should  bo 
followed  supported  as  it  is  by  the  views  of 
the  eminent  authorities  mentioned. 

We  may  now  consider  the  application  of 
of  s.  1*12  of  the  Evidence  Act  In  the  case  of 
Hajira  Khalun  v.  Amina  Khatyn  (3),  Mr. 
Justice  Daniels  expressed  the  opinion  that 
B.  112  was  applicable  to  Muhammadans. 
The  contiary  view  was  taken  by  Mr.  Stan- 
yon  in  a  case  of  the  Nagpur  Judicial  Com- 
missioner's Court,  Zakirali  v.  Sograbi  (4), 
Here  it  is  contended  that  s.  1 12  is  applicable, 
and  that  "valid11  in  that  case  means  any 
marriage  which  is  not  batil  or  void  ab  initio. 
We  are  of  the  opinion  that  s.  112  of  the 
Evidence  Act  cannot  be  applicable  in  any 
way  to  a  marriage  which  according  to  the 
Bombay  ruling  mentioned  above  is  neither 
void  ab  initio  (batil)  nor  absolutely  void  but 
is  fasid,  i.  CM  irregular,  inasmuch  as  s,  112  is 
based  on  a  division  of  marriages  merely  into 
two  catagories,  and  cannot  be  applicable  to 
Mu  ham  mad  an  Law  which  according  to  the 
Bombay  ruling  divides  marriages  into  three 
catagories  In  any  case  we  hold  that  if  s  112 
can  be  held  applicable,  then  we  should  have 
to  convstrue  the  word  "valid1'  in  the  section 
as  "flawless"  so  that  the  presumption  would 
not.  apply  to  fasid  marriages. 

The  lower  Court  followed  the  Bombay 
ruling  as  we  propose  to  do  and  not  the 
Calcutta  ruling,  but  it  held  that  the  plaintiff 
No.  1  was  born  before  the  expiration  of  six 
months  from  the  marriage  of  the  deceased 
to  Ix-r  mother,  and  that,  therefore,  she  could 
not  be  held  to  be  the  daughter  of  Uusam- 
mcit  Chinka  Neither  in  that  Court  nor  in 
this  Court  does  it  appear  to  have  been  urged 
that  even  if  she  could  be  held  to  be  the 
daughter  of  Musammat  Mehrbibi  it  would  not 
be  sufficient  for  her  claim  to  the  property,  and 
so  it  is  unnecessary  for  us  to  consider  this 
point  of  view.  Five  witnesses  for  the  plain  tiff 
deposed  that  the  plaintiff  Np.  1  was  born  in 
Baisak,  that  is  April-May  of  the  year  1908. 

(3)  73  Ind.  Gas,  983;  ^1923)  A.  I.  B,  (A,)  570, 

(4)  43  Ind,  Gas.  683;  15  N.  L,  K,  1. 


84  ,  KANIZA  t>.  HiSAN  AHMAD  kHAN. 

This  evidence  was  not  impugned  by  cross- 
examination,  but  the  lower  Court  disbeliev- 
ed it  in  the  face  of  an  admission  by  Musam- 
mat Chinka  made  in  former  criminal  pro- 
ceedings. These  proceedings  were  brought 
by  Abdul  Sattar  against  his  nephew  under 
s.  498  of  the  Indian  Penal  Code  by  way  of 
pro3ecution  of  that  nephew  for  his  having 
,  eloped  with  Musammat  Mehrbibi.  Musam* 
mat  Chinka  was  examined  in  that  case  and 
deposed  as  follows  : — 

"I  cannot  count.  Four  months  ago  I  gave 
birth  to  a  daughter.  Ten  months  ago  I  was 
married  to  Abdul  Sattar.  I  do  not  know 
the  month  that  the  daughter  was  born." 

Now  this  evidence  would  make  the  plaint- 
iff No.  Ts  birth  to  have  occurred  in  Sep- 
tember or  October,  that  is  to  say  within  six 
months  of  Abdul  Battar's  marriage  with  her 
mother.  An  additional  reason  for  the  Sub- 
ordinate Judge  rejecting  the  evidence  of 
the  five  witnesses  for  the  plaintiff  was  that 
their  evidence  was  clearly  false  evidence 
BO  far  as  they  asserted  the  fact  of  a  divorce 
between  Abdul  Sattar  Khan  and  Musammat 
Mehrbibi. .  We  are  not  disposed  to  agree 
With  the  lower  Court  on  this  finding.  It 
may  be  mentioned  that  the  Subordinate 
Judge  who  wrote  the  judgment  appealed 
against  was  not  the  Judge  who  heard  the 
evidence.  We  are,  therefore,  in  as  good  a 
position  as  he  was  to  express  an  opinion 
on  the  veracity  of  the  witnesses.  The  state- 
ment of  Musammat  Cbinka  in  the  criminal 
proceedings  cannot  be  regarded  as  an  ad- 
misaion.  She  has  not  the  status  of  a  plaint- 
iff in  the  case,  and  her  statement  cannot 
bind  her  daughter  as  an  admission.  The 
only  way  in  which  that  statement  was  ad- 
missible in  evidence  was  as  rebutting 
Musammat  Chinka's  evidence  in  this  case. 
We  are  prepared  to  exclude  her  evidence,  but 
there  still  remains  the  evidence  of  the  five 
witnesses  for  the  plaintiff.  No  attempt  was 
made  as  already  remarked,  to  impugn  this 
evidence  by  cross-examination.  It  may  be 
that  these  witnesses  gave  false  evidence  in 
support  of  the  divorce  of  Musammat  Mehr- 
bibi, But  as  the  case  stands  we  think  that 
their  evidence  must  be  accepted  as  to  the 
month  of  birth  of  the  plaintiff  Up.  1.  Accord- 
ingly our  finding  is  that  the  plaintiff  No.  1's 
legitimacy  must  be  held  to  be  proved  under 
the  presumption  of  Muhatnmadan  Law  that 
in  the  case  of  a  false  marriage  a  child  bom 
en  the  expiry  of  six  months  of  copula  is  to 
b«  regarded  as  legitimate, 
WQ  now  come  to  the  question  of  the 


$81.0.1928] 

custom.  The  wajib-ul-arz  provides  that  a  aop 
and  daughter  will  share  equally.  There  is 
no  specific  provision  that  a  daughter  in  the 
absence  of  a  son  will  exclude  a  collateral, 
but  it  is  urged  that  this  mugt  be,  inferred 
from  the  fact  that  a  daughter  shares  with  a 
son  to  the  exclusion  of  collaterals,.  .We 
agree  with  the  lower  Court  that  the  in- 
ference would  be  a  dangerous  one.  It  may 
well  be  that  there  is  a  custom  ta  give  a 
daughter  a  half  share  with  her  brother,  but 
it  does  not  follow  that  the  daughter 
should  have  the  whole  inheritance  in  the 
absence  of  a  .brother.  Under  .ordinary 
Muhammadan  Law  she, will  be  entitled,  to 
one  half  as  against  a  collateral..  She  will 
not,  therefore,  be  in  a  worse  position  than 
that  if  she  had  a  brother.  We  do  not  think 
it  safe  to  infer  that  she  should  be  in  a  better 
position. 

We  agree  with  the  lower  Court  that  the 
plaintiff  No.  1  has  failed  to  j>rove  the  custom 
set  up  by  her.  We  also  find  nothing  in  the 
wajib-ul-arz  that  would  support  the  plea  6f 
plaintiff  No.  2  that  a  widow  without  children, 
i.  e>  legitimate  children,  will  have  prefer- 
ence to  a  collateral,  a  point  TvhicK  wa$ 
remarked  above,  would  only  ar&p,.  if  the 
plaintiff  No.  1's  claim  were  to  fee  ejected  in 
toto.  In  consequence  of  the  abpve  findings 
we  dismiss  the  appeal  of  plaintiff  J?o.  2  \yith 
costs.  We  allow  the  appeal  of  rlaii;- iff  No.  1 
in  part  and  direct  a  decree  to  be  (huuii  u$ 
securing  the  plaintiff  No.  1  a  half  sfiajfe  in 
the  property  in  suit.  The  plaintiff  No,  1 
is  awarded  half  costs  in  both  Courts,  in- 
asmuch as  her  claim  has  been  allowed  for 
half  the  property. 

It  may  be  remarked  tha,t  before  argu* 
ments  ID  tMs  appeal  the  ]iinintiiT.-»XoH  1  and2 
had  arrived  at  accmpicjnito  with  defendant 
No.  1,  one  of  tho  nine  persons  substituted 
for  the  original  ilcfiMicliint  Abdul  fiazzak, 
who  died  before  the  hearing  of  this  appeal, 
whereby  the  defendant  No.  1  agreed  that 
the  plaintiffs  Nos.  1  and  2  should  get  a  decre^ 
for  one-third  of  the  8- annas  share  of  Abdul 
Razzak.  On  our  finding  the  plaintiiT  No.  2 
is  entitled  to  nothing,  and  the  plaintiff 
No.  1  is  entitled  to  one-half  ,of  the  ^-ai^a^ 
share  as  against  all  the  defendants. ,, We 
Are  unable  in  our  decree  Jo  giv§  flny.  Affect 
to  this  compromise,  the  comproijns6  staua 
that  the  defendant  Kb;  1  wfcs  entifltec}  ujudey 
a  deed  of  gift  to  ond-tHiid  o!  ffi«  property 
Abdul  Raz&sk,;but,we  dp  pqt  know  whether 
the  other  defendants  would  admit  this,  In 


ing 

tw 


If  I  0. 1926  J 

<$se  under    our  finding  the  plaintiff 
1  gets  Ofi$  half  of  the  property  of  Abdul 
safe  wliic}i  is  more  tliah  one- third.    She 
(therefore,  suffer  from  our  disregard- 
ifre  compromise.    Oa    the  other  hand 
defendant  No.  1  has  given  up  all  that  he 
"  tliaji  ii$  is  entitled    to.    He,  therefore, 

Qopaplain  pf  the  decree. 
t|.  Appeal  allowed. 


MUDALIAR  v.  SEIEAN'OATH  ANN*. 


MADRAS  HIGH  COURT. 

'  pivil  APPBAL  No.  184  OF  1924. 

September  24,  1925. 
Present:— Mr.  Justice  Phillips  and 

Mr.  Justice  Ramesam, 
IMANI  8ATYANARAYANA  AND 
OTHERS— DEFENDANTS  Nos.  2  TO  5  — 
APPELLANTS 
versus 
SATYANARAYANA 

AND  ANOTHER — PLAINTIFF 
ANf)  DiiFKN'DANT  No.  1 — RESPONDENT*. 

Hindu  Law—Debt,  antecedent—Mortgage-debt  of 
father-- Pefsonal  liability  barred— Sons,  whether 
oound. 

Any  prior  mortgage-debt  due  by  a  Hindu  father  is 
valid  ancj  binding  on  the  sons  as  on  antecedent  debt 
whether  the  psrsonal  liability  of  the  father  is  or  is  not 
barred. 

1  Gauri  Shanker  Singh  v  Sheo  Nandan  Misra,  78  Tnd. 
Oas.  9U;  45  A,'384r  22  A.  L.  J  369;  (1921)  A.  J  R  (A) 
543;  L.  R.  5  A.  300  div.,  followed 

[r>,»ujrn  Chetty  v.  Muthu  Koundan,  52  Ind  Gas. 
3'ri,  12  V.  71 1,'  9  L.  VV  565;  (1919)  M  W.  N.  409,  37  M, 
If.  J.  160;  26  M.  Lr.  T.  96,  relied  on. 

Appeal  against  a  decree  of  the  Court  of 
fhe  8ubordinate  Judge,  Kistna  at  Ellore, 
dated  the  13th  December  1923,  in  O.  S.  No. 
93  of  1922. 

Messrs,  A.  Krishaswamy  Iyer  and  V. 
Govindarajachari,  for  the.  Appellants. 

Mr.  N.  Rama  Rao,  for  the  Respondents. 

JUDGMENT.— This  is  an  appeal 
against  a  decree  on  a 'mortgage  executed  by 
the  first  defendant,  father  of  defendants 
Nos.  2  to  5.  The  mortgage  was  executed 
in  order  to  discharge  a  prior  moiluaipMieed 
executed  by  the  first  defenJuui  iu  190(5, 
Ex.  B,  the  suit  mortgage,  being  Ex.  A, 
dited  10:h  October  1915.  The  Subordi- 
nate Judge  has  given  a  Decree,  holding 
that  the  mortgage,  having  been  executed 
to  discharge  an  antecedent  debt  of  the 
father,  is  binding  upon  the  sons*  shares, 
and  he  relies  on  the  Full  Bench  decision  of 
this  Cjurfc  in  Arumugam  Cketly  v.  Muthu 
Koundan  (I). 

(I)  52  lal*  Oaa.  S25;  12  M.  711:  9  L.  W.  585;  (1919) 
It.  fT,J&.  iJ%  37  M  lu  J.  166;  56  «  L,  T.  9$, 


For  the  appellants  it  is  contended  tlra, 
the  decision  is  not  applicable,  because  ;ji 
the  present  case  a  portion  of  the  previous 
debt  coujd  only  be  enforced  as  a  mortgage 
debt  and  not  as  a  personal  debt  of  the 
father.  This  question  has  not  been  con- 
sidered in  the  lower  Court  and  it  is  not  at  all 
clear  whether  the  personal  liability  is  barred 
or  not  in  respect  of  the  first  three  instal- 
ments. Whether  it  is  barred  or  not,  how- 
ever, the  case  can  be  disposed  of  on  another 
ur-  •,  1  T1  as  definitely  been  held  in 
'/  •  si  .  Singh  v.  Sheo  Nandan  Misra 
(2),  that  a  -  '  '  whether  the 

personal  liability  is  barred  or  not,  is  an 
antecedent  debt  binding  on  the  sons' 
shares,  Thia  same  principle  has  been 
adopted  in  Arumugam  Chatty  v,  Muthu- 
Koundan  (1),  and  although  it  maybe  said 
that  in  that  case  the  personal  liability  had 
not  been  barred  and  that,  therefore,  the  de- 
cision is  not  strictly  in  point,  yet  in  view 
of  the  form  of  the  questions  propounded 
by  the  Referring  Bench  it  is  clear  from  the 
judgment  that  the  first  of  the  questions  was 
dealt  with  as  a  general  question,  anqi  in 
effect  the  decision  of  the  Full  Bench  is  that 
any  prior  inorlgaije-debt  due  by  the  father 
is  valid  as  an  antecedent  debt,  and  tfcis 
decision  is  not  qualified  by  any  expression 
of  opinion  that  the  mortgage-debt  must 
also  be  enforceable  as  a  personal  liability. 

We,  therefore,  follow  ithese  two  cases  and 
dismiss  the  appeal  with  costs. 

Time  for  redemption  is  extended  to  £hree 
months  from  this  date. 
v.  N.  v.  Appeal  dismissetf. 

N.  H. 

(2)  f8  Ind.  Gas  911;  46  A.  384;  22  A.  L.  J.  360,  (1024) 
A.  I  R.  (A,)  513;  L.  R.  5  A.  306  Civ. 


PRIVY  COUNCIL. 

CONSOLIDATED  APPEALS  FROM  THE 
HIGH  COURT. 
April  2,  1925. 

Present: — Lord  Shaw,  Lord  Carso 
Blanesburgh,  Sir  John  Edge  ai 

Ameer  AH. 

VAlTHIALINQA  MUDALTAR  AND  OTHERS 
— APPELLANTS 

versus 

SRIRANQATH  ANNI  AND  OTHERS 
— RESPONDENTS. 

Hindu  Law —Widow,  position  of —Decree  obtained 
against  widow,  whether  binding  on  reversivners — 
Adverse  possession  against  widow,  whether  adverse  to 
rerwnoner— Limitation  Act  (IX  of  1871),  Sch,  II \  Arf. 
J2P,  application  of* 


VA1THIALINOA  MUDALIAR  V.  8RIRANGATH  ANNI. 


A  Hindu  widow  in  possession  of  the  estate  of  her 
deobased  huaband  represents  the  estate  in  suits 
brought  by  her  or  against  her  for  possession  of  the 
(  estate  or  anjr  part  of  it,  and  she  and  the  reversioners 
are  equally  bound  by  any  final  decree  which  a  Court 
makes  in  such  a  suit  provided  thai  the  suit  was  fought 
out  according  to  Jaw  and  was  not  collusive  or  fraudu- 
ent.  [p.  88,  col,  1.] 

Article  129  of  Sch.  II  to  the  Limitation  Act  of  1871 
applied  to  all  suits  in  which  the  plaintiff  could  not 
succeed  without  displacing  an  apparent  adoption  by 
virtue  of  which  the  defendant  was  in  possession  and 
where,  before  the  repeal  of  that  Act,  the  defendant's 
title  had,  owing  to  the  afflux  of  time,  become  unassail- 
able, the  repeal  of  that  Act  would  not  revive  the  right 
of  any  reversioner  to  the  estate  to  question  the  validity 
of  the  adoption  under  hwhich  the  defendant  claimed, 
[p.  93,  col.  1.] 

Semble.—  A  Hindu  widow  fully  represents  the  estate 
of  her  deceased  husband  and  adverse  possession  which 
bars  her  bars  the  heirs  after  her.  [p.  88,  col  2  ] 

Consolidated  appeals  from  a  decree  of 
the  Madras  High  Court  (Sir  John  Wallis, 
Kt.,  Chief  Justice,  and  Mr.  Justice  Btirn), 
dated  the  15th  November  1916,  printed  as  41 
Ind.  Gas.  546,  modifying  that  of  the  Subor- 
dinate Judge,  Negapatam,  dated  the  4th 
September  1908,  inO.  S.  No.  26  of  1905. 

Sir  G.  Lowndes,  K  C.,  Messrs.  W.  Wallach 
and  M.  R.  R.  Pillai,  for  Vaithialinga  Muda- 
liar  and  others. 

Mr.  J.  M.  Parekh,  for  Srirangath  Anni 
and  others. 

Messrs.  L.  De  Gruyther,  K.  C.,  and  K.  V. 
L.  Narasimham,  for  Somasundaram  (Jhefc- 
tiar  and  A.  Rangasami  Chettiar. 

JUDGMENT. 

Sip  John  Edge.— These  are  nine  con- 
solidated appeals  from  a  decree,  dated  the 
15th  November,  1916,  of  the  High  Court  at 
Madras,  which  varied  a  decree,  dated  the 
1th  September,  1908,  of  the  Subordinate 
Judge  of  Nagapatam. 


[92  I.  0.  1926] 

The  suit  in  which  these  appeals  have 
arisen  was  brought  ill  the  Court  of  the  Sub- 
ordinate Judge  on  the  2nd  July,  1905,  by 
three  plaintiffs,  who  were  reversioners  of 
Arunachala  Mudaliar,  against  thirty-eight 
defendants  for  the  possession  of  lands  which 
were  alleged  by  the  plaintiffs  to  be  lands  of 
the  Kulikara  estate  in  the  District  of 
Tanjore  and  for  mesne  profits.  The  title 
of  the  plaintiffs  to  sue  was  denied  by  the 
defendants  on  various  grounds,  of  which 
those  which  are  now  important  and  have 
to  be  considered  are  whether  the  suit  was 
not  barred  by  the  result  of  a  litigation 
which  began  in  1887  and  ended  with  a 
final  decree  in  1892,  and  whether  the  suit 
was  not  otherwise  barred  by  the  law  of 
limitation. 

The  Kulikara  estate  admittedly  belonged 
to  Arunachala  when  he  died  in  1849  He 
was  then  about  22  years  of  age.  The 
family  to  which  he  belonged  were  Hindus 
of  the  Sudra  caste  He  had  been  adopt- 
ed by  Vithialinga  Mudaliar,  a  relation, 
who  was  descended  from  an  ancestor  from 
whom  Arunachala  also  was  descended. 
The  plaintiffs  are  the  three  sons  of  Chok- 
kappa  Mudaliar,  who  was  the  youngest  of 
three  brothers  by  birth,  that  is,  natural 
brothers,  of  Arunachala.  Arunachala  died 
childlefes,  leaving  a  widow,  Chokkammal,  \iho 
died  on  the  25th  December,  1902,  within 
12  years  before  this  suit  was  instituted. 
She  was  a  defendant  to  the  suit  with  which 
the  litigation  of  1887  commenced.  It  will  be 
necessary  to  refer  at  some  length  to  that 
litigation.  The  following  pedigree  will 
show  Arunachala  and  his  natural  brothers 
an d, some  other  persons:— 


Arunachala, 

died  in  1849, 

leaving  a  widow, 

Chokkammal,  who 

died  25th  December 

1902. 


Kalianasundaia, 
di5d  in  I860*  or 
1867 


AlaguBundara, 

adopted  by 
Chokkammal,  validity 
of  adoption  disputed,  died  in 
1864,  leaving  a  widow,  Murugathal, 

4th  defendant,  who  adopted 
Thiagaraja,  who  died  in  1881, 
leaving  a  widow,  who  died  in  If  82. 




rii.ViJi|-p. 

who  uieti  in  1MJ4 


Bavakrishnasami, 

an  ascetic,  died  12th 

October  1903,  leaving  a 

widow,  Srirangath,  1st 

defendant. 

, — i 


Thiagaraja, 

adopted  by  Murugathal, 

validity  of  adoption 

disputed. 


f 

eon, 
1st  plaintiff. 


C 


son, 
2nd  plaintiff 


I 

eon, 
3rd  plaintiff. 


Ind  defendant, 
a  daughter. 


3rd  defendant, 
a  daughter, 


[92  L  0.  1926J 

Arunachala,  as  whose  reversioners  the 
plaintiffs  claim  to  be,  had  before  his  death 
directed  his  wife  Chokkammal  to  adopt  as 
a  son  to  him  his  natural  brother  Alagusun- 
dara.  In  1882  Chokkammal  did  as  a  fact 
adopt  Alagusundara  as  a  son  to  her  late 
husband  Alagusundara  was  a  younger 
natural  brother  of  Arunachala,  and  at  the 
time  of  the  adoption  there  was  no  one  living 
who  could  give  him  in  adoption,  As  a 
matter  of  Hindu  Law  the  adoption  was 
invalid. 

In  1862  Chokkammal,  having  adopted 
Alagusundara,  put  him  in  possession  of  the 
immoveable  property  now  in  question,  re- 
serving to  herself  for  her  maintenance 
some  of  the  immoveable  property  to  which 
she  was  entitled  as  the  widow  of  Aruna- 
chala. With  the  property  which  she  reserv- 
ed for  her  maintenance  this  suit  is  not  con- 
cerned. There  can  be  no  doubt  that  in 
1882  Chokkammal  did  put  Alagusundara 
in  possession  of  the  property  now  in  ques- 
tion. In  March,  1862,  she  presented  an 
undated  petition  to  the  Tahsildar  of 
Nannilam,  the  Revenue  Officer,  in  which 
she  stated  that,  with  the  consent  of  her 
husband,  she  had  adopted  Alagusundara, 
his  natural  younger  brother,  and,  with  the 
exception  of  certain  villages  which  she 
named,  she  had  made  him  proprietor  of  all 
the  land  and  other  properties,  etc.,  stand- 
ing in  her  name,  and  prayed  that,  with  the 
exception  of  the  three  villager,  "the  miras" 
(ownership)  might  be  transferred  to  him 
and  all  the  sircar  proceedings  might  be 
passed  in  his  name. 

Alagusundara  continued  to  be  in  posses- 
sion of  the  property  of  which  Chokkammal 
had  put  him  in  possession  in  1862  until  he 
died  in  1884,  and  had  dealt  with  the  pro- 
perty which  had  been  transferred  to  him  as 
an  absolute  owner  would  have  done.  Upon 
his  death  in  1864  his  elder  brother  Kaliana- 
sundara,  on  the  18th  July,  1864,  presented 
a  deed  of  consent  to  the  Tahsildar  of 
Nannilam  praying  for*  the  transfer  to  the 
name  of  Thiagaraja  of  the  property  which 
stood  in  the  name  of  Aluir:-1;::  i-ini.  and  the 
miras  was  transferred  to  him.  Tniagaraja 
was  by  birth  a  son  of  Kalianasundara  and 
had  been  adopted  by  A'.  :i* .-  ,  .  :<i'  i  He 
was  in  1884  about  two  years  of  age. 

From  the  18th  July,  1884,  Kalianasundara, 
until  he  died  in  "September,  1876,  was 
referred  to  in  all  documents  relating  to  the 
property  as  the  guardian  of  Thiagaraja  ,who 
in  possession  of  the  property  in  ques- 


VAlTfllALINaA  MUDALTAR  V.  9RIRANGATH  ANNI. 


87 


tion  from  1864  until  he  died  in  1881,  and 
during  that  time  the  management  of  the 
affairs  of  the  family  was  carried  on  solely  in 
his  name.  Upon  the  death  of  Thiagaraja 
in  1881  the  miras  which  had  stood  in  his 
name  was  altered  to  the  name  of  his  widow 
Kamalath,  a  girl  of  about  12  years  of  age, 
who  died  in  1882.  Upon  the  death  of 
Kamalath  in  1882,  Murugathal,  the  mother 
by  adoption  of  Thiagaraja,  took  possession 
of  the  property  in  question  for  a  Hindu 
widow's  interest  and  held  it  until  1884, 
when  Chokkammal  forcibly  ejected  her. 

On  the  9th  February,  1887,  M  •  ..;  •'  .' 
brought  a  suit  in  the  Court  of  tl  **  •  : 
nate  Judge  of  Negapatam  against  Chok- 
kammal and  others,  in  which  she  claimed 
a  decree  for  the  possession  of  the  properties 
now  in  question,  alleging  in  her  plaint  that 
her  husband  Alagusundara  had  been  the 
adopted  son  of  Arunachala,  and  that  the 
properties  which  she  claimed  belonged  to 
him  as  such  adopted  son,  and  had  been 
enjoyed  by  him  from  1862  until  he  died 
in  1864;  that  after  his  death  her  adopted 
son  Thiagaraja  had  enjoyed  them  until  he 
died  in  1831,  and  after  him  his  widow, 
Kamalath,  got  them  according  to  Hindu 
Law  and  she  died  childless  in  1882,  and 
since  her  death  she,  M-miiMthal.  got  them 
under  Hindu  Law  and  enjoyed  them  until 
1884,  when  Chokkammal  forcibly  took  pos- 
session of  them  and  enjoyed  them  adversely 
to  her.  Chokkammal  in  her  written  state- 
ment in  that  suit  denied  Murugathal's  title, 
alleged  that  she,  Chokkammal,  had  been  in 
possession  of  the  property  in  question  for 
38  years  from  the  death  of  her  husband 
Arunachala  in  1849,  and  denied  that  Alagu- 
sundara had  been  adopted.  Several  issues 
were  framed  by  the  Subordinate  Judge  in 
that  suit  who  found  that  Alagusundara 
was  adopted  as  a  son  to  Arunachala  in 
1862  by  Chokkammal,  who  had  the  author- 
ity of  her  husband  to  ^make  the  adoption, 
that  the  adoption  was  invalid  according  to 
Hindu  Law,  that  Thiagaraja  was  adopted  by 
Murugathal  under  the  authority  of  her 
husband,  but  that  the  course  of  conduct  of 
Chokkammal  and  the  change  of  position  of 
Alagusundara  as  the  result  of  his  adoption 
made  it  inequitable  to  hold  that  he  had  not 
title  to  the  property,  and  that  the  putting 
him  in  possession  of  the  property  in  ques- 
tion and  allowing  him  to  manage  it  for 
his  own  purposes  substantially  operated  as 
a  gift  of  the  property  to  him  The  Subordi- 
nate Judge  in  that  suit  also  held  that 


88 


MUDALUR  V.  SBlR^GATtf 


Murjjgathal's  claim  of  adverse  possession 
of  the  'mirks  for  12  years  was  establish- 
e<J,  and  on  the  18th  December,  Ifcb9,  he 
gave  her  a  decree  for  possession  of  the  pro- 
perty which  she  claimed.  From  that  decree 
of  the  Subordinate  Judge  the  suit  of  1887 
went  on  appeal  by  Chokkammal  to  the  High 
Court  at  Madras.  The  learned  Judges  of 
the  High  Oouft  held  that  Ajigj^indam's 
adoption  was  invalid,  but  Lol'iintf  ihai 
M.  11 1 1  if  a! !.  ill's  plaim  of  adverse  possession 
for  12  years  was  established  by  Iheir 
decree  of  the  17th  August,  1892,  dismissed 
ChokkammaVs  appeal,  Chokkammal  did 
not  appeal  from  that  decree  of  the  High 
Court,  and  it  became  final. 

It  is  necessary  to  consider  what  was 
ChokkammaFs  position  as  a  Hindu  widow 
and  how  far  her  acts  could,  according  to 
Hindu  Law,  bind  the  reversioners  to  her 
husband.  On  Arunachala's  death  in  1849 
she  became  entitled  to  the  full  beneficial 
enjoyment  of  the  estate  which  had  been  his 
at  the  time  of  his  death.  As  Mr.  Mayne, 
ip  para,  605  of  his  "Hindu  Law  and  Usage," 
correctly,  in  their  Lordships'  opinion,  said: — 

"It  was  at  one  time  common  to  speak  of 
a  widow's  estate  as  being  one  for  life.  But 
this  is  wholly  incorrect.  It  would  be  just 
as  untrue  to  speak  of  the  estate  of  a  father 
under  the  Mitakshara  Law  »s  being  one  for 
life.  Hindu  Law  knows  nothing  of  estates 
for  life,  or  in*  tail,  or  in  fee.  It  measures 
esfates,  not  by  duration,  but  by  use.  The 
restrictions  upon  the  use  of  an  estate  in- 
herited by  a  woman  are  similar  in  kind  to 
those  which  limi,t  the  powers  of  a  male 
holder,  but  different  in  degree/1 

'fhje  Hindu  widow  has  not  power  to  make 
a  gift  of 'the  estate.  Panning  ov,er  the  pos- 
session ojf  the  epta.te  to  a  son  w^om  she  has 
yalidly  adopted  to  hjer  deceased  husband 
is  not  piakii^g  a  gift  of  the  estate  to  him. 
Ttye  eatate  became  his  on  his  adoption  if 
lie  'was  validjy  adopted.  She  has  no  power 
to  seH  or  assign  the  estate  except  for  neces- 
sity, so  a$  to  bind  her  husband's  rever- 
sioners after  her  death.  But  she  represents 
the  e^jtate  in  suits  brought  by  her  o?  against 
her  for  possession  of  the  estate  or  any  part 
of  ij;,  apd  she  and  the  reversioners  are 
equally  bound  by  any  final  decree  which 
a  Court  makes  in  such  a  suit  provided  that 
the  suit  was  fought  out  awo.-.fintf  to  law 
and  was  not  collusive  or  fraudulent. 

In  the  suit  of  1837,  Chokkammal  was  no 
doubt  personally  interested  to  defeat  Muru- 
gathal  *  claim  for  the  possession  of  lands 


[9?  I.  0. 


which  had  been  in  her  own  possession  as 
the  widow  of  Arunachala  from  1849  untiji 
1862,  but  although  her  object  in  resisting 
MurugathaTs  claim  was  probably  a  purely 
personal  and  selfish  object,  she  did,  "in 
fact  and  in  law  in  that  suit,  represent  the 
estate  as  well  as  her  own  interests  as'  a 
Hindu  widow.  The  suit  of  '  1887  was  pot 
a  collusive  suit  ;  it  was  regularly  an(<i  $e- 
cor^ing  to  due  piorctlu'c  lit  law  foughjb  out 
in  the  Court  of  s-ui  S  ^..pirna!-,1  Judg^  £nd 
in  the  High  Court. 

A  protracted  argument  ,wa.^  submitted  jto 
the  Board  on  the  question  whether  under 
Hindu  Law  adverse  possessiop  against  a 
widow  in  possession  of  an  estate  lor  a 
Hindu  widow's  interest  bars  the  rever- 
sioner.  While  it  is  not  necessary  in  the 
view  which  will  later  be  announced  by  the 
Board  on  the  question  of  limitation  in  this 
case  to  make  any  formal  pronouncement 
upon  this  point,  it  may  be  copvenient'  to 
say  that  the  authorities  referre'd  to  were  as 
follows  :  —  In  Goluckmonee  Dabee  v.  Degum- 
ber  J)ey  which  was  decided  in  1852, 
Sir  Lawrence  Peel,  who  was  the  Chief  Justice 
of  the  Supreme  Court  at  Calcutta,  said  :  — 
"It  has  been  invariably  considered  for 
many  years  that  the  widow  "  (speaking  of 
the  widow  as  heir)  "fully  represent^  jth,e 
estate,  and  it  is  also  settled  law  that  ndyerse 
possession  which  bars  her  bars  th$  heir 
also  after  her,  which  would  not  be  the  case 
if  she  were  a  mere  tenant  for  life,  as  known 
to  the  English  Law."  [See  the  reference 
to  that  case  in  the  judgment  of  §i;r  Barnes 
Peacock,  0.  J.,  in  NobinChunderCfiukerbutty 
v.Issur  Chunder  Chukerbutty  (l). 

Iji  Katama  Natchier  v.  ftaja  of  Shiva- 
gunga  (2),  which  was  ,deQi4$d  by  tjite  IJoard 
in   1863,  the  3o^d,  consisting  9!  'Kpigfjit 
Bruce,  £<•  J.,  §ir  Edward  Ry$n,  arid  T,ur#f  f, 
L.    J.,  the  assessors    being  Sir  La\ 
Pjeel  and  Sir  James  W.   CoKilo,   all 
eminent  lawyer^,  apd  tbre,^  of  them 
had  judicial    experience    in    India,    Lor 
Justice    Turner   delivered  the  coi^idc-r 
judgment  of  the  Board,  anol  in  i;  ssjid,  ^l 
page  603*,  as  foUpw$  :  — 

'-'It  seems,  however,  Jo  bs  necpe^,ar,jr,  iln 
order  to  determine  the  #ip<je  £n  whicft  fyfa 
appeal  ought  ,to  be  disposed  of,  to  copsicfer 
the  question  whether  the  decree  of  1$47)  ijf 
it  had  become  final  ip  Anga  Moptoo 


(1)  9  W.  R.  505  at  p.  507;  B.  L.  R  Sup.  Vol.  1008. 
9  M.  I.  A.  539;  2  W.  R.  F.  0.  31;  i  Suth.  P.  C.  J. 


.    .    .  .     .    .     . 

530.  2vSar.  K  C.  J.  25;  10  K.  K.  843. 
'•Tage  of  9  if.  I  A.—  [fii.] 


[92 1. 


J4UDALIAR  V. 


ANNI. 


80 


,r,  v  lifetime,  would  have  bound  those 
claipaipg  the  semindari  in  succession  to  her. 
And  th^ijf  Lordships  are  of  opinion  that, 
unpegs  it  could  be  shown  that  there  had  not 
been  a  fair  trial  of  the  right  in  that  suit — 
or,  in  other  words,  unless  that  decree  could 
haye  bsen  successfully  impeached  on  some 
special  ground,  it  would  have  been  an 
effectual  bar  tp  any  new  suit  in  the  Zillah 
Court  by  a#y  person  claiming  in  succession 
to  Anga  Mootoo  Natchier.  For.n.^-imin^her 
to  b0'  enjiijed  tp  the  zemindari  at  all,  the 
whole  egtftte  would  for  the  time  be  vested 
in  her,  absolutely  for  some  purposes,  though, 
in  som#  respects,  for  a  qualified  interest  ; 
and  until  her  death  it  could  not  be  ascer- 
tained who  would  be  entitled  to  succeed. 
The  same  principle  which  has  prevailed  in 
the  Courts  of  this  country  as  to  tenants  in 
tail  representing  the  inheritance,  would 
seem  to  apply  to  the  case  of  a  Hindu  widow, 
and  it  is  obvious  that  there  would  be  the 
greatest  possible  inconvenience  in  holding 
that  the  succeeding  heirs  were  not  bound 
by  a  decree  fairly  and  properly  obtained 
against  the  widow." 

The  declaration  as  to  Hindu  Law  which 
their  Lordships  have  quoted  from  the  con- 
sidered judgment  of  the  Board,  which  was 
delivered  by  Lord  Justice  Turner  in  1863, 
has  in  the  present  appeal  been  objected  to 
on  the  ground  that  it  was  obiter.  The 
following  cases,  however,  were  referred  to 
as  showing  that  the  doctrine  there  set  forth 
was  in  accord  with  the  course  of  judicial 
decisions. 

Their  Lordships  will  first  refer  to  the 
case  Nobin  Chunder  Chuckerbutty  v.  Issur 
Chunder  Chuckerbutty  (I)  which  came  be- 
fore a  Full  Bench  of  the  Calcutta  High 
Court,  1867,  in  which  the  declaration  of  the 
Board  in  the  Shivagunga's  case  (2)  to  which 
their  Lordships  have  referred  was  accepted 
as  a  correct  statement  of  the  Hindu  Law  to 
which  it  related  and  was  applied  to  the 
case  before  the  Full  Bench,  The  facts  of 
the  case  before  the  Full  Bench  are  not  fully 
stated  in  the  order  of  reference  to  the  Full 
Bench,  but  they  were  as  follows :  One 
Ramdoollub  Chuckerbutty  died  possessed 
of  an  estate  consisting  of  lands  leaving  two 
sons,  two  daughters  and  his  widow,  Dhone 
Mala.  The  two  sons  died  Without  issue  in 
the  lifetime  of  the  widow,  and  upon  their 
death  the  widow,  Dhone  Mala,  became 
entitleqi  to  the  possession  of  the  Respective 
estates  of  the  sons,  but  the  defendant  in 
that  suit,  a  stranger,  and  *s  a 


took  possession  of  the  estate  more  than 
12  years  before  the  suit,  and  the  widow 
never  obtained  possession.  Upon  the  death 
of  the  widow,  sons  of  the  daughters,  who 
were  the  reversion ers  to  their  uncle's  estate, 
brought  the  suit  for  possession,  which  was 
before  the  Full  Bench  in  second  appeal. 
The  first  Appellate  Court  had  dismissed 
the  suit  as  not  brought  witlxin  time, 
that  is,  within  12  years  from  the  time 
when  the  defendant  had  wrongfully  tak^n 
possession,  and  the  question  before  Ihe 
Full  Bench  was  whether  the  suit  was  barred 
by  limitation  or  whether  the  reversioners 
could  sue  upon  the  death  of  the  widow, 
Dhone  Mala.  The  Full  Bench  held  jthajb 
the  cause  of  action  arose  when  the  defend- 
ant had  taken  possession  and  that  the  suit 
was  time-barred.  The  Full  Bench  was  an 
exceptionally  strong  Bench  of  Judges,  who 
had  much  experience  in  cases  involving 
considerations  of  Hindu  Law.  Their  Lord- 
ships will  give  extracts  from  the  judgments 
which  were  delivered  in  the  Full  Bench,  as 
those  judgments  appear  to  their  Lordships 
to  confirm  the  declaration  as  to  Hindu 
Law  which  they  have  quoted  from  the  judg- 
ment of  the  Board  in  the  ShivagungcC  s  case(%) 
and  to  have  a  direct  bearing  on  the  appeal 
before  the  Board,  and  ate  very  instructive. 

In  delivering  his  judgment  in  that  Full 
Bench  case,  with  which  8e ton-Karri  J->  con- 
curred, Sir  Barnes  Peacock,  C.  J.,  after 
referring  to  Sir  Lawrence  Peel's  judgment 
already  mentioned,  said  : 

"  It  was  also  held  by  the  Privy  jOo.uncil  in 
the  Shivagungci  s  case  (2)  that  in  the  absence 
of  fraud  or  collusion,  a  decision  against  a 
widow,  with  regard  to  her  deceased  hus- 
band's estate,  would  be  binding  upon  ihe 
reversionary  heirs.  ...  If  the  female 
heir  in  the  present  case  had  sued  the  wrong 
doer,  and,  without  fraud  or  collusion,  had 
failed  to  make  out  her  case  to  turn  hini 
out  of  possession,  the  reversionary  heirs 
would  have  been  bound  by  the  decision.  I 
am  assuming  that  they  are  not  claiming 
through  the  female  heir." 

Farther  on  Sir  Barnes  Peacock,  said : 

"It  is  said  that  the  reversionary  heirs 
could  not  sue  (for  possession)  during  the 
lifetime  of  the  widow,  and  that,  therefore, 
they  ought  not  to  be  barred  by  any  adverse 
holding  against  the  widow  at  a  time  when 
they  could1  hot  sue.  But  when  we  look  at 
the  widow  as  a  representative,  and  see  that 
the  reversionary  heirs  are  bound  by  decrees 
relating  to  her  husbaacTs  estate  which 


90 

obtained  against  her  without  fraud  or 
collusion,  we  are  of  opinion,  that  they  are 
also  bound  by  limitation,  by  which  she, 
without  fraud  or  collusion,  is  barred." 
Jackson,  J.,  in  his  judgment,  said  : 
44 1  entirely  concur  in  the  opinion  of  the 
Chief  Justice  that  the  plaintiff  (the  rever- 
sionary heir)  was  barred  in  the  present 
case.  ...  It  has  been  distinctly  held  by 
the  Privy  Council  in  the  ShivagungcCs  case(2) 
that  a  decision  fairly  arrived  at  without 
fraud  or  collusion  in  the  presence  of  a 
Hindu  widow  in  possession  of  the  estate 
will  bind  reversionary  heirs.  That  being 
so  decided,  it  appears  to  me  impossible  to 
escape  the  conclusion  that  an  adverse  pos- 
session which  barred  the  widow  will  also 
bar  the  heirs,  and  in  that  opinion  we  are 
fully  and  strongly  supported  by  the  deci- 
sions of  the  late  Supreme  Court  in  the  case 
to  which  his  Lordship  the  Chief  Justice 
has  referred.11 

Phear,  J.,  in  his  judgment,  said: 
"  I  too  desire  to  avoid  pledging  myself  to 
all  the  illustrations  which  have  fallen  from 
the  Chief  Justice;  but  with   this  exception, 
I  concur  entirely  in  the  reasoning  which 
he  has  given  in  support  of  his  conclusions, 
and  I  concur  also  in  the  remarks  which 
have  been  made  by  Mr.  Justice  Jackson. 
I  will  add  that  it  seems  to  rne  that,  when 
a  reversionary   (Hindu)    heir    succeeds  to 
the  property  of  his  ancestor  on  the  death 
of  an  intervening    female  heir,  he    takes 
substantially  the  same  proprietary  right  as 
she  enjoyed,  and  no  more,  though,  dou  btless, 
she  was  fettered  in  a   way  that  he  is  not, 
with  regard  to  the    dealings  with  the  pro- 
perty, viz.,  her  alienations  are  often  liable  to 
be  avoided  by  him  when  he  succeeds  to  the 
right  of  succession.11 
Macpherson,  J.,  in  his  judgment,  said  : 
"  I  also  concur  in  the  proposed  answer. 
But  a  very  great  difference  exists  between 
the    case  immediately   before  us,   and  the 
case  in  which  a  mother  (or  other  Hindu  fe- 
male having  an  estate  similar  to   that  of  a 
childless  widow)  has  herself  alienated  pro- 
perty belonging   to  the  estate  which  she 
has  taken  as    heiress,    without    sufficient 
reason  for  making  such  alienation.    In  the 
latter  case,  the  alienation  is  good  as  against 
her,  and  so  far  as  her  own   life-interest  is 
concerned.    Therefore,  in  fact,  no  cause  of 
action  necessarily  arises  at  all  with  respect 
to  her  alienation  so  long  as  she  lives.    The 
cause  of  action   does  not  arise  until  her 
death,  when    the    reversioner's   cause   of 


VAITHULIN3A  MODALUR  V.  SRIRAKOATH  ANNt.  [92  L  0.  1926] 

action  for  the  first  time  accrues.  In  the 
case  before  us,  the  property  having  never 
reached  the  hands  of  the  mother  (the  Hindu 
widow)  at  all,  having  been  throughout  held 
adversely  to  her,  the  cause  of  action  (of  the 
reveraioner)  accrued  in  the  mother's  life- 
time, and,  therefore,  a  suit  to  recover  pos- 
sesion,  by  whomsoever  it  may  be  brought, 
is  barred,  unless  instituted  within  12 
years  from  the  commencement  of  the  ad- 
verse possession." 

In  Aumirtolall  Bose  v»  Rajoneekant  Mitter 
(3),  the  decision  of  the  Full  Bench  at 
Calcutta  in  Nobin  Chunder  Chuckerbutty 
v.  Issur  Chunder  Chuckerbutty  (1)  was 
cited  in  argument,  and  Sir  Barnes  Peacock, 
in  delivering  the  j  udgment  of  the  Board, 
affirmed  that  decision. 

In  Jugul  Kishore  v.  Jotindro  Mohun 
Tagore  (4),  which  was  before  the  Board  in 
1884,  where  a  Hindu  widow's  right,  title 
and  interest  in  property  had  been  sold  in 
execution  of  a  money  decree,  the  Board, 
without  a  suggestion  of  dissent  from  the 
ruling,  said,  at  page  73*.  "  It  was  held  in 
the  Shivagunyzs  case  (2)  that  although  a 
widow  has  for  some  purposes  only  a  partial 
interest,  she  has  for  other  purposes  the 
whole  estate  vested  in  her ;  and  that  in  a 
suit  against  a  widow  in  respect  of  the  estate 
the  decision  is  binding  upon  the  rever- 
sionary heir."  "  The  Board  also  said : 

"If  the  suit  is  simply  for  a  personal 
claim  against  the  widow,  then  merely  the 
widow's  qualified  interest  is  Hold  (in  execu- 
tion of  the  decree)  and  the  reversionary 
interest  is  not  bound  by  it  (the  sale).  If, 
on  the  other  hand,  the  suit  is  against  the 
widow  in  respect  of  the  estate,  or  for  a 
cause  which  is  not  a  mere  personal  cause  of 
action  against  the  widow,  then  the  whole 
estate  passes." 

In  Pertabnarain  Singh  v.  Trilokinath 
Singh  (5)  which  was  before  the  Board  in 
1884,  the  Board,  said,  at  page  207*  : 

"It  is  sufficient  for  the  present  purpose 
to  hold  that,  until,  she  had  appointed 
another  to  be  owner  and  representative,  the 
Maharanee's  estate  in  the  taluk  was  suffi- 
cient to  constitute  her  the  full  representa- 
tive of  it  in  the  former  suit.  Her  estate 

tt)  2  I.  A  113,  2.3  W.  R.  214;  15  13.  L.  R.  10;  3  fiar 
P.  O.J.430;3Suth.P.  0.  J.94. 

(4)  11  I.  A.  66;  100.  985,  8  Ind.  Jur.    455   4  fcfcr  P 
0.  J.  55.3,  5  Ind  Dec.  (N.  s.)  657  (P.  0.).  '    ' 

(5)  111  A.  197;  11  G  186;  8  Ind.  Jur  697;  4  Sar  P 
O.  J.  567;  Rail  que  and   Jackson's  P.O.   No  86-  5  Ind' 

Deo.  (N._s)8S3(P.  C; '  * 

~  *Pa0es  of  U  I,  A,— [Ed.]  ~~ "~ 


[921  0.  1926] 


VAITHIALINGA  MUDALIAR  V.  SRIRANOATH  ANMI. 


91 


was  at  least  as  large  as  that  of  a  Hindu 
widow  in  her  husband's  properly.  What 
was  said  by  this  Board  of  the  widow's  estate 
in  the  Shivaganga's  case  (2)is  applicable  to 
hers." 

In  Hari  Nath  Chatter ji  v.  Mothurmohun 
Goswami  (6)  which  came  before  the  Board 
in  1893,  it  was  held  that  the  rule  in  the 
Shivaganga's  case  (2)  to  the  effect  that  an 
Adverse  decree  against  a  Hindu  widow 
binds  those  claiming  in  succession  applies 
equally  to  the  case  of  the  daughter.  It 
had  been  argued  in  that  case  that  the  ad- 
verse title  alleged  was  founded  on  some- 
thing which  was  independent  of  limitation, 
and  that  the  Limitation  Act  XV  of  1877 
let  the  reversionary  heir  sue  within  12  years 
from  the  time  when  his  right  to  pos- 
session accrued.  With  reference  to  that 
argument,  Lord  Watson,  at  page  188*, 
said : — 

^"  But  you  must  show  that  thte  new  law 
gives  a  right  of  action  to  the  reversioner  not- 
withstanding that  the  widow's  right  of 
possession  has  been  extinguished  by  decree  " 

Owing  to  the  fact  that  it  did  not  appear 
from  the  judgment  of  the  Board  when 
Pearimoni,  who  was  the  second  wife  of 
Ramanundun  Goswami,  had  died,  beyond 
the  fact  ithat'she  was  living  when  he  died 
in  1847,  there  was  some  hesitation  in  re- 
ferring to  that  case  in  the  argument  of 
this  appeal.  Mr.  De  Gruyther  has,  how- 
ever, shown  from  the  appeal  recorr)  of 
that  case,  which  is  preserved  in  the  Privy 
Council  Office,  that  Pearimoni  died  in 
1855. 

In  Risal  Singh  v.  Balwant  Singh  (7)  which 
was  before  the  Board  in  1915,  Ghaudhari 
Risal  Singh,  alleging  that  he  was  the  re- 
versionary heir  of  Jagat  Prakash  Singh, 
brought  a  suit  against  Bulwant  Singh  for 
possession  of  immoveable  properly  known 
as  the  Landhaura  estate.  The  property 
there  claimed  had  belonged  to  Raja 
Raghubir  Singh  until  he  died  childless  in 
1868.  Raghubir  Singh  left  a  widow,  Rani 
Dharam  Kunwar,  who  bore  to  him  a  pos- 
thumous son,  Jagat  Prakash  Singh,  who 
died  in  1870,  Rani  Dharam  Kunwar  had 
the  authority  of  her  husband  to  make 
successive  adoptions.  In  1877  she  adopted 


(6)  20  I.  A.  183;  21  0.  8;  17  Tnd.  Jur.  481;  6  8ar.  P.  C. 
J.334;  lOInd.  Dec.  (N.  a.)  638  (P,  0.). 
(1)  48  lad.   Gas.  553;  45  I.  A.  168;  28  0    L.  J.  519; 


24  M.  L.  T.  361;  40  A.  593;  9  L.  W,  52;  23  0.  W.  N. 
326;  (1919)  M,  W.  N.  155;  36  M.  L.  J.  597;  21  Bom.  L. 
Bjll  (P/QJ 

"•Pago  of  20  I.  A,-~[#c*.] " 


to  her  husband  a  boy  who  died  within  three 
years  after  he  had  been  adopted,  and  then 
she  adopted  another  boy,  who  died  in  1855, 
and  in  Iti90  she  adopted  Bulwant  Singh, 
the  defendant  to  the  suit.  She  continued 
in  possession  of  the  property,  alleging  that 
her  husband  Raghubir  Singh  had  by  his 
Will  left  it  to  her  for  her  life.  After  a  time 
Rani  Dharam  Kunwar  and  Bulwant  Singh 
quarrelled.  She  was  claiming  a  right  to 
manage  the  property  during  her  life  ;  he 
was  claiming  his  full  rights  as  an  adopted 
son.  The  result  was  that,  on  the  7th  January 
1905,  Rani  Dharam  Kunwar  brought  a 
suit  in  the  Court  of  the  Subordinate  Judge 
of  Saharanpur  against  Bulwant  Singh,  in 
which  she  claimed  to  have  it  declared  that 
she  had  no  power  to  adopt  Bulwant  Singh 
and  had  never  validly  adopted  him,  and  to 
have  her  registered  deed  of  adoption,  in 
accordance  with  which  she  had  adopted 
him,  declared  void  and  ineffectual  against 
her.  He  alleged  that  Rani  Dharam  Kunwar 
had  power  to  adopt  him,  and  had  validly 
adopted  him.  The  Subordinate  Judge, 
holding  that  Rani  Dharam  Kunwar  was 
estopped  from  denying  that  she  had  validly 
adopted  Bulwant  Singh,  dismissed  her  suit. 
She  appealed  to  the  High  Court  at  Allah- 
abad, and  the  High  Court,  also  holding 
that  Rani  Dharam  Kunwar  was  estopped, 
dismissed  her  appeal.  Thereupon  she  ap- 
pealed to  His  Majesty  in  Council.  The 
Board  in  that  appeal  considered  the  evidence 
in  that  suit,  and  having  come  to  the  con- 
clusion that  Rani  Dharam  Kuuwar  had 
validly  adopted  Bui  want  Singh  and  that 
her  appeal  should  be  dismissed,  advised 
His  Majesty  accordingly.  In  the  judgment 
the  Board,  at  page  178*,  said  : 

'There  can  be  no  doubt,  in  their  Lordships1 
opinion,  that  Rani  Dharam  Kunwar  in  her 
suit  against  Bulwant  Singh  did,  notwith- 
standing the  personal  estoppel  under  which 
she  labfired,  represent  tlie  estate  on  the 
question  of  fact  as  to  whether  Bulwant 
Singh  had  or  had  not  been  validly  adopted, 
and  that  she  represented  the  estate  within 
the  meaning  of  the  rule  in  Katama  Natchier 
v.  Raja  of  Shivagunga  (2).  The  principle 
of  law  to  be  applied  in  such  cases  was,  their 
Lordships  consider,  correctly  summarized 
by  Banerji,  J.,  in  his  judgment  in  this 
case,  thus:  *  Where  the  estate  of  a  deceased 
Hindu  has  vested  in  a  female  heir,  a  decree 
fairly  and  properly  obtained  against  her 
in  regard  to  the  estate  is,  in  the  absence  of 
~~*J»age  of  45  I.  A,—  [Ed] 


i  0. 


fjpud  or  collusion,  binding  on  the  rever- 
sionary heir.'  It  cannot  be  said  that  there 
had  nojb  been  a  fair  trial  by  the  Board  in 
1912  pf  the  right  in  the  suit  of  Rani  Dharam 
Kunwar  against  Bulwant  Singh.  The  right 
in  that  suit  was  his  right  to  the  estate  as 
a  son  validly  adopted  to  Kaja  Raghubir 
Singh/1 

tlpon  the  other  side  it  was  asserted 
the  principle  of  the  Shivagunga's  case  (2) 
might  have  been  applied  and  had  not  been 
applied  in  the  case  of  Runchordos  Vandra- 
vandas  v.  Paravatibai  (8)  which  came 
befojre  the  Board  in  1899  The  suit  in 
that  case,  ^ as  brought  on  the  21st  Decem- 
ber, 18H§,  against  Vandravandas  and  the 
Advocata-General  of  Bombay  by  Curson- 
das  Oovindjee  as  the  heir  at-lawof  Kallianji 
Sewji,  who  had  died  on  the  Gth  January, 
18S9,  leaving  two  widows — Cooverbai,  who 
(Jied  in  1871,  and  Nenavahoo,  who  died  in 
1888.  Kallianji  Sewji  had  made  a  Will, 
which  wes  proved  on  the  2nd  March,  1&G9, 
by  jthree  executors,  who  were  trustees,  of 
whom  the  first  defendant  to  the  suit  was  at 
the  date  of  th6  suit  the  sole  survivor.  The 
three  trustees  were  appointed  by  the  testator 
as  trustees  for  dharam— that  is,  to  make 
gifts  for  charitable  or  religious  purposes. 
The  Will  contained  the  following  clause  : 
''As  to  the  estates  which  have  been  given 
by  me  to  my  wives,  they  are  to  enjoy  the 
rant  of  the  said  estates  during  their  natural 
lives,  and  on  the  death  of  my  wives  the 
said  estates  are  to  revert  to  my  dliaram, 
an4  whatsoever  income  may  be  derivable 
from  the  said  estates  is  to  be  expended  for 
my  dharam"  The  main  question  in  the 
suit  was  whether  the  gift  for  charitable  or 
religious  purposes  weis  void  for  vagueness 
and  uncertainty,  and  the  High  Court  at 
Bombay  and  the  Board  in  appeal  held  that 
it  was  void  and  that  the  trustees  took  no 
interest  under  the  Will.  The  suit  was  brought 
after  the  death  of  Nenavahoo. 

It  appears  to  their  Lordships  that  part 
pf  the  property  claimed  by  the  reversioner 
bad  been  property  of  the  respective  widows 
as  their  stridhan,  as  to  which  there  was 
some  question  as  to  the  "rights  of  the  heir" 
and  that  other  parts  of  the  property  claimed 
was  property  which  had  been  in  the  pos- 
session of  the  widows,  to  which  the  rever- 
sionary heir,  the  plaintiff,  in  the  ordinary 
course,  was  clearly  entitled,  and  that 

(8)  26  1  A.  71;  23  'B.  723,  1  Bom  L.  R.  607;  3  C.  W. 
N.621;  7Sar,P.C,J.  513;  12  Ind,  Dec,  (N.  &)  4*5 


the  Board  was  considering  Jjpw  an. 
which     the    Courts     Wpvy    had 
to'  be  prepared,    should  >e  yp*4e4  s.° 
to  show  those  two  classes  of  propeily. 

The  defence  of  limitation  was  raised,  but 
the  Board  held  that  it  did  not  apply',  &y* 


illt  is  not  necessary  to  consider  what 
might  be  the  case  if  the  Widows  or*  th'ej 
survivor  of  them  were  suing,  9-9  (he  plaint- 
iff does  not  derive  his  right  froni  or  through 
them,  and  the  extinguishment  oflTS^ii1  light 
would  not  extinguish  his." 

It  has  been  nirtintniijed  that  the  Board 
was  not  intending  to  discredit  tnte  rule  in 
the  Shimgunga's  case  (2).  What  the  BoaW 
was  considering  was  the  wording  of  ait 
account  which  the  Appellate  Court  and  th$ 
first  Court  had  ordered  to  be  prepared. 
The  judgment  of  the  Board  was  'delivered 
by  Sir  Richard  Couch  in  1899,  who  jn^l&93 
had  delivered  the  judgme:^  T^  '  • 

in  Hari  Nath  Chatter  ji'  y.  '•'  "(  ' 
Goswami  (6)  which  expressly  approved  of 
and  applied  as  sound  Hindu  Law 'the  yule 
in  the  Shiragun^s  case  (2).  What  tojas  said 
by  the  Board  in  1899  at  the  rovl'i-ioh  of  the 
judgment  makes  it  plain  what  the  Boarcf 
was  ^m-si'ioring  It  is  ther*  said  ' 

"  The  decree  of  the  first 
27the    July,   1898,  should 
varied  as  it  has  been.    It  is 
of  the  moveable  property  lc  v  ,00 

and  Nenavahoo  at  the  time  x  their  d< 
distinguishing  between  efacn  of  it  a's  w$a 
their  stridhan  and  4  as  such '  formed  part  o; 
the  estate  of  thp  testator.  'As  suc'Ji' .uproars 
to  be  an  error  for* such  as,  Uith  •  -^ 


the 
beeii 


alteration  their  Lordships  think  th$ 
will  be  right.11  l  f 

As  altered  by  the  Board  the  Account 
which  was  to  be  taken  was  nua:coiinl  6f  Jih| 
moveable  property  left  by  ^  vrrMi  ^..^ 
Nenavahoo,  the  widows  of  th;-  - :)  i  '•  *"•'•* 
respectively  at  the  time  of  theit  deaths 
distinguishing  between  suck  of  the  \$ard 
pr  perty  as  was  the  stridhan  p^  the  saitl 
Cooverbai  and  Nenavahoo  and  s'uch  aj 
formed  part  of  the  estate  of  Jbhe  f aid  testator. 

It  does  not  appear  to  their  J-oidBlups 
how  the  rule  iu  tto  Shivagunga  8  caseU)* 
could  have  been  applied  ia«  the  case  then 
before  the  Board.  Wfiat  the  Buard,  at  xthfe 
stage  of  the  suit  which  Wa£  Jhea  bfijbte  JIM 
Bo-ird,  the  Board  having  de<Hde4 
th*  tnnt  to  the  trustee^ 
was  what  was  the  aowonb 


f 92 1.  a.  1926] 


VAIfttULtNGA  MDDALUB  V,  SRIRANGATH  ANNL 


93 


|akeu,  and  the  Board  directed  that  the 
account  should  separately  show  what  had 
been  the  stridhan  of  the  widows,  and  what 
w^s  the  property  to  which  the  heir  might 
ordinarily  be  entitled.  Their  Lordships  are 
unable  tp-  see  what,  was  the  estate,  within 
Ijlie  meaning  of  the  Shivagung's  case  (2) 
which  the  widows  had  represented,  or  to 
what  the  ^ule  in  the  Shivagungas  case  (2) 
could  Jiave  been  applied.  The  title  of  the 
trustees  to  the  property  devised  or  bequeath- 
ed to  them  for  charitable  or  religious 
purposes  by  Kallianji  Sewji  was  not  ques- 
fcpne'd  until  the  survivor  of  the  two  widows 
(jtied  ia  1888,  and  that  property  had  never 
been  represented  by  the  widows  or  either 
of  v.them,  It  had  been  in  the  exclusive 
possession  of  the  trustees  under  the  Will 
of  Kallianji  Sewji  from  1869  until  the 
Court  in  the  suit  which  was  brought  on 
the  21st  December,  1888,  after  the  death  of 
the  last  surviving  widow,  had  decided  that 
thejji/t  for  diariiablo  or  religious  purposes 
was  void. 

,  The  result  of  the  cases  to  which  their 
Lordships  have  referred  shows,  in  their 
opinion,  ihat  the  Board  has  invariably 
applied  :  lii*  rules  of  the  Shivagunga'a  case  (2) 
as  'sound  Hindu  Law  where  that  rule  was 
applicable. 

It  also  appears  to  their  Lordships  that 
the  suifc^  is  barred  by  limitation.  The 
plaintiffs  could  not  be  entitled  to  a  decree 
fo£  pOcses^ion  without  displacing  the 
adoption  of  1802  of  Alagusundara  by  Chok- 
It  was  held  by  the  Board  in 
:  :  rhdodhraniv.  Dakhina  Mohun 
'  (9),  that  Art.  129  of  the  Second 


, 


Schedule  of  ^  Act  IX  of  1871  relates  to  all 
suits  in  which  the  plaintiff  cannot  succeed 
without  displacing  an  apparent  adoption 
by  virtue  of  .  which  the  defendant  is  in 
possession*  That  Article  prescribed  12 
years  as  the  period  of  time  within  which  a 
Auit  "  to  establish  or  set  aside  an  adoption  " 
tnight  be  brought  and  that  such  period  of 
12  years  should  begin  to  run  from  "The 
{tate.ol  the  adoption,  or  (at  the  option  of  the 
pi*inttiff)  from  the  date  of  the  adoptive 
.father's  death,11 

,,,Ac#  IX  of  1871  did  not  give  to  a  rever- 
$iA$9£,  who^je  right  to  sue  for  possession 
accrued  ,i*pon  the  death  of  Hindu  widow 
W7^.»  further  time  thpn  the  12  years 
given,,  by  A*t.  129  to,  any  plaintiff.  That 
Acfc  yraa  in  force  until  the  19th  July,  1877, 

.  (D)  1*3  I;  A,  84;  13,0.  $08;  lOJnd.  Jur,  307;  4  Sar. 
P,  0,  J,  7J5;  0  Jud,  Deo,  (N.  B.)  705  (V,  0.). 


when  Act  XV  of  1877,  the  Indian  Limitation 
Act,  1877,  came  into  force,  and  by  Art.  141 
of  the  Second  Schedule  of  Act  XV  of  1877 
a  Hindu  entitled  to  the  possession  of  im- 
movable property  on  the  death  of  a  Hindu 
female  might  bring  his  suit  for  posses- 
sion within  12  years  from  the  time  when 
the  female  dies  In  the  present  case  the 
period  of  limitation  allowed  by  Art.  129  oi 
Act  IX  of  1871  expired  in  1874. 

The  person  who  at  the  date  of  the  adop- 
tion in  1862  was  entitled  to  sue  to  set  aside 
the  adoption  must  have  been  a  reversioner 
to  Arunachala,  and  looking  at  the  pedigrees 
he  must  have  been  either  Kalianasundara 
or  Chokkappa,  and  it  has  not  been  pleaded 
or  otherwise  alleged  that  they  were  at  the 
time  of  the  adoption  under  the  age  of  18 
years  so  as  to  entitle  them  to  an  extension  of 
the  period  allowable  to  a  minor  under  s.  7, 
Act  IX  of  1871,  to  bring  a  suit.  It  is  obvious 
looking  at  the  facts  and  dates  in  the  present 
case,  that  Kalianasundara  and  Chokkappa 
must  have  arrived  at  full  age  long  before  Act 
IX  of  1871  expired  and  that  that  Act  applied. 

In  the  present  suit  the  Subordinate  Judge 
found  that  the  question  as  to  the  adoption 
of  Arunachala  was  res  judicata,  but  Sir 
John  Wallis,  0.  J,,  and  Mr.  Justice  Burn, 
in  the  appeal  to  the  High  Court,  decided 
that  the  principle  of  res  judicata  did  not 
apply.  On  that  subject  their  Lordships  do 
not  consider  it  necessary  to  express  an 
opinion. 

It  has  been  arranged  by  the  parties 
through  their  respective  Counsel  and  their 
respective  Solicitors  in  the  best  interests  of 
their  clients  that  the  plaintiff's  appeal  No. 
124  of  1923.  and  the  first  defendants'  appeal, 
No.  128  of  1923,  which  relates  to  the  village 
of  Knkan,  should  be  dismissed,  and  that 
there  should  be  no  order  as  to  costs  in 
either  of  these  appeals  in  which  other 
respondents  have  not  appeared.  It  has  also 
been  arranged  by  the  parties  though  their 
respective  Counsel  and  their  respective 
Solicitors'  in  the  best  interests  of  their 
clients  that  the  plaintiffs1  appeal  No.  125  of 
1923,  should  be  dismissed  without  costs 
on  either  side,  the  plaintiffs  having  admit* 
ted  that  the  late  husband  cf  the  first  defend- 
ant was  not  disqualified  from  inheriting 
along  with  the  plaintiffs.  Except  as  above 
arranged  by  the  parties  it  appears  to  their 
Lordships  that  all  the  appeals  should  be 
dismissed  with  costs,  and  their  Lordships 
will  so  accordingly  humbly  advise  Hia 
Majesty, 


94 


NATIONAL  BANK  OF  UPPER  INDIA  V.  BANSl  DHAtt. 


Since  the  hearing  of  these  appeals  some 
of  the  parties,  their  Lordships  understand, 
have  entered  into  compromises.  On  pro- 
duction of  the  proper  evidence,  effect  to 
these  compromises  will  be  given  in  the 
Order  in  Council  confirming  this  report, 

z.  K.  Appeals  dismissed. 

Solicitors  for  V,'!-'-.!^-  .;,,  Mudaliar  and 
others: — Messrs.  3 .  L.  \\  nson  and  Co. 

S"lici;.  :-iVi  ?i  ii;ii,iM;li  As.r  i  i-i.'l  others: — 
Me--!-  ('•  -;:-'n  ,-/•,  IT-?  /.•<  r  i..j  >•  •  phard. 

Solicitor  for  Somasundaram  Ohettiar  and 
A.  Rangasami  Ohettiar: —Mr.  D.  Grant. 


OUDH  CHIEF  COURT. 

FIRST  CIVIL  APPEAL  No.  6  OF  1924. 

November  18,  1925. 
Present: — Mr.  Justice  Stuart,  Chief  Judge, 

and  Mr.  Justice  Ash  worth. 

NATIONAL  BANK  OF  UPPER  INDIA 

(IN  LIQUIDATION)  THRODGH  ITS  LIQUIDATORS 

Seth  UADHA  KI8HAN  AND  ANOTHER— 

PLAINTIFFS — APPELLANTS 

versus 

BANSI  DHAR  AND  ANOTHER — DEFENDANTS — 
RESPONDENTS. 

Negotiable  Instruments  Act  (XXVI  of  1881),  s  28— 
Pro-note,  execution  of,  for  another— Personal  liability 
not  intended— Inducement  by  promisee— -Inducement 
by  real  borrower-  -Limitation  Act  (IX  of  1908),  s,  20 
—  Pro-note,  execution  of,  for  another —Payment  of 
interest  by  real  debt  or ---Extension  of  time,. 

If  a  negotiable  instrument  does  not  set  out  clearly 
that  the  maker  is  not  personally  liable  the  fact  of  the 
knowledge  of  the  payee  that  the  executant  did  not 
intend  to  incur  personal  liability  is  irrelevant,  [p.  96, 
col.  1J 

Where,  however,  the  promisee  induces  the  execu- 
tant of  a  pro-note  to  sign  the  pro-note  upon  the  belief 
that  a  third  party  only,  and  not  he,  would  be  liable 
thereunder,  the  executant  cannot  be  held  to  be 
personally  liable,  [p.  95,  col.  2.] 

Where  the  belief  is  induced  by  the  third  party  and 
not  the  promisee,  the  executant  cannot  escape  liabili- 
ty, [p.  96,  col  2,  p.  97,  col.  2.J 

Where  a  promissory  note  is  executed  in  pursuance 
of  an  agreement  between  the  executant  and  a  third 
party  that  the  former  would  execute  the  promissory 
note,  but  that  the  latter  would  pay  the  interest  on  it 
and  also  the  principal,  this  is  sufficient  evidence  of  an 
implied  condition  that  that  third  party  should  pay 
the  interest  falling  due  on  the  promissory  note  as 
the  duly  appointed  agent  of  the  executant  and  the 
payment  by  him  of  interest  saves  limitation,  but  not 
so,  where  payment  of  interest  is  made  not  in  conse- 
quence of  any  such  agreement  between  the  third 
party  and  the  executant  but  in  consequence  of  an 
understanding  between  the  executant  and  the  pro- 
misee, [p,  98,  col.  1.1 

Appeal  from  the  judgment  and  decree  of 
the  Sub-Judge,  Lucknow,  dated  the  22nd 
October  1923, 


[921.0.1926] 

Mr.  Aditya  Prasad,  for  the  Appellants. 

Messrs.  Niamatullah,  Ishwari  Prasad  and 
Jai  Krishna  Tandon,  for  the  Respondents. 
JUDGMENT. 

Ashworth,  J.— This  is  a  plaintiff's 
first  appeal.  The  suit  is  one  brought  by 
the  National  Bank  of  Upper  India  (in  li- 
quidation) against  the  defendant  No.  1 
Bansi  Dhar  and  defendant  No.  2  Gopal  Das 
on  a  promissory  note  signed  by  the  former 
only,  and  on  a  current  account  alleged  to 
have  existed  between  the  defendants  and 
the  Bank.  Reliance  on  the  current  account 
as  a  cause  of  action  was  abandoned  in  the 
lower  Court,  as  the  only  debit  items  in  this 
account  were  instalments  of  interest  due  on 
the  promissory  note,  and  for  the  purposes  of 
this  appeal  the  sole  cause  of  action  is  liabi- 
lity under  the  promissory  note.  In  the  lower 
Court  the  second  defendant  pleaded  that 
he  could  not  be  liable  on  a  promissory  note 
which  was  only  signed  by  defendant  No.  1 
and  not  by  himself,  a  contention  which  was 
upheld  by  the  Court,  and  which  is  not  im- 
pugned in  this  appeal.  Bansi  Dhar  defend- 
ant No.  1  pleaded  that  even  if  consideration 
were  held  to  have  existed  the  suit  was  bar- 
red by  limitation,  as  he  himself  had  neither 
paid  any  interest  on  it  nor  authorised  any  one 
else  to  pay  interest  onit,  and  that  three  years 
had  elapsed  since  the  date  of  its  execution, 
The  lower  Court  held  that  the  promissory 
note  was  executed  by  defendant  No.  1  for 
consideration,  namely,  the  promise  by  the 
Bank  to  the  defendant  No.  1  (a  promise  ful- 
filled) to  credit  the  account  of  Bishambhar 
Nath  Tandon  with  the  sum  secured  by  the 
promissory  note,  namely,  Rs.  20,tOO,  It 
found,  however,  that  there  was  only  one 
payment  towards  interest  made  within 
three  years,  namely,  that  of  Rs.  908-6-3  made 
on  the  23rd  November  1918.  This  sum  it 
held  to  have  been  paid  by  a  third  party 
Bishambhar  Nath  otherwise  than  as  the 
agent  of  the  defendant  No.  1.  It,  therefore, 
helO  that  limitation  was  not  saved  under 
s.  20  of  the  Limitation  Act  (IX  of  1908). 
The  finding  as  to  limitation  is  impugned 
in  this  appeal.  The  respondent's  Counsel 
is  prepared  to  maintain  tliat  the  lower 
Court's  finding  as  to  limitation  was  correct, 
irrespective  of  any  other  finding,  but  his 
main  content  ion  is  that  the  suit  should 
have  been  dismissed  because  there  was  no 
consideration.  I  am  of  the  opinion  th&t  it 
might  be  difficult  to  hold  that  the  suit  was 
barred  by  limitation  if  the  promissory  note 
was  for  consideration,  and,  therefore,  I  first 


[92  I.  0. 1926] 

proceed  to  decide  the  question  whether  the 
lower  Court's  finding  that  there  was  con- 
sideration should  be  upheld  or  not. 

The  plaintiff's  case  as  set  forth  in  the 
plaint  was  that  the  defendant  No.  1  and 
his  brother  the  defendant  No.  2  needed  the 
money  for  their  cloth  and  banking  busi- 
ness and  accordingly  borrowed  it  from  the 
Bank  on  the  security  of  the  promissory 
note  in  question.  The  promissory  note  in 
question  is  Ex.  1,  dated  22nd  December 
1917,  It  is  for  the  sum  of  Rs.  20,000  with 
interest  atj)  percent,  per  annum  to  be  com- 
pounded half  yearly,  and  purports  to  have 
been  executed  "for  value  received  in  full.11 
It  is  signed  by  defendant  No.  1  Bansi  Dhar 
alone.  Exhibit  2  is  a  receipt  executed  by 
Bansi  Dhar  alone  for  Rs.  20,000.  The  plaint 
explains  that  the  note  was  executed  by 
Bansi  Dhar  alone  because  his  brother,  the 
second  defendant,  was  a  Director  of  the 
Bank  and  did  not  think  it  advisable  to 
appear  as  a  borrower  from  the  Bank.  The 
plea  set  up  by  Bansi  Dhar  in  para.  10  of  his 
written  statement  was  that  neither  he  nor 
his  brother  ever  borrowed  the  twenty 
thousand  rupees  from  the  Bank,  and  that 
the  note  was  executed  by  him  at  the  re- 
quest of  Bishambhar  Nath,  a  third  party, 
with  the  knowledge  of  the  Manager  of  the 
Bank,  Pandit  Ram  Nath  Sapru,  merely,  to 
conceal  the  indebtness  of  Bishambhar  Nath 
to  the  Bank,  Bishambhar  Nath  being  one 
of  the  Directors.  The  actual  language  of 
this  para.  10  is  as  follows: — 

"There  was  an  intimate  friendship  between 
Pandit  Ram  Nath  Sapru  deceased  Manager 
of  the  plaintiff  Bank,  and  Rai  .Sahib  Babu 
Bishambhar  Nath,  one  of  the  Directors  of 
it,  and  the  answering  defendant  and  the 
said  Rai  Sahib,  were  also  on  very  intimate 
terms.  Rai  Sahib  Babu  Bishambar  Nath 
had  taken  the  debt  entered  in  the  pro-note, 
the  basis  of  claim,  from  the  plaintiff;  at 
his  suggestion  the  answering  defendant 
signed  the  pro-note  the  basis  of  claim  and 
its  receipt  without  getting  any  considera- 
tion, the  answering  defendant  did  not  sign 
the  said  deeds  as  a  debtor  and  no  contract 
was  entered  into  or  consideration  passed 
between  the  plaintiff  Bank  and  the  answer- 
ing defendant  with  respect  to  the  said  docu- 
ments." 

This  pleading  in  the  written  statement 
of  the  defendant  No,  1  was  subsequently  am- 
plified by  a  statement  of  Mr.  Wazir  Hasan, 
Counsel  for  the  ^defendant  which  was  as 
follows;— 


NATIONAL  BANK  OF  f  PPBR  INDIA  V.  BANSI  DHAR. 


95 


"The  loan  sued  for,  if  real,  was  negoti- 
ated by  Rai  Bishambhar  Nath  for  his  own 
benefit.  He  received  that  money  from  the 
Bank,  and,  therefore,  there  was  no  consider- 
ation which  moved  from  the  Bank  in  favour 
of  Bansi  Dhar,  Bansi  Dhar  is,  therefore,  not 
liable  to  re-pay  the  loan.  Bishambhar 
Nath,  the  real  debtor,  is  liable  to  pay  the 
loan.  The  defendant  Bansi  Dhar  signed 
the  pro-note  at  the  request  of  Lala  Bisham- 
bhar Nath  who  in  view  of  the  practice  in 
the  Bank,  being  one  of  the  Directors  of 
the  plaintiff  Bank,  could  not  sign  the  pro- 
note.  The  plaintiff's  case  is  based  on  the 
ground  that  the  consideration  of  the  pro- 
note  in  suit  consists  in  the  payment  made 
by  the  Bank  to  Bansi  Dhar.  There  is  no 
other  consideration  set  up  by  the  plaintiff. 
The  consideration  so  set  up  is  denied  by  us. 
It  is  not  our  case  that  Barisi  Dhar  signed  the 
pro-note  in  the  capacity  of  an  agent  of  a 
disclosed  or  undisclosed  principal.  Our 
case  is  that  we  are  not  liable  because 
there  is  no  consideration  moving  from  the 
Bank  towards  us  that  would  make  the 
promise  contained  in  the  note  sued  for  bind- 
ing on  us.  As  a  positive  case  we  further 
state  that  the  loan  advanced  by  the  Bank 
to  Bishambhar  Nath  was  not  really  due 
to  the  fact  that  we  ever  made  any  request 
to  the  Bank  for  the  loan  to  be  made  to 
Bishambhar  Nath.  The  whole  transaction 
was  concluded  between  the  Bank  and 
Bishambhar  Nath  alone,  and  Bansidhar 
came  in  only  as  a  benami  signatory  to  the 
pro-note.  The  Bank  was  fully  cognizant  of 
this  state  of  affairs." 

Now  it  must  be  admitted  that  this  plead- 
ing did  not  furnish  an  answer  to  the  claim 
on  the  pro-note  This  pleading  set  up  the 
fact  that  by  agreement  between  defendant 
No.  1  and  Bishambhar  Nath  the  former 
was  to  incur  no  personal  liability,  and  these 
pleadings  suggest,  though  they  do  not 
explicitly  state  so,  that  the  Manager  Ram 
Natb  Sapru  was  aware  that  the  defendant 
No.  1  did  not  in  tend  to  incur  personal  liabil- 
ity. This  was  not  enough.  It  was  necessary 
in  the  language  of  s,  28  of  the  Negotiable 
Instruments  Act  to  prove  that  the  Manager 
of  the  Bank  Ram  Nath  Sapru  induced  de- 
fendant No.  1  to  sign  the  pro-note  upon  the 
belief  that  Biehambhar  Nath  only  would  be 
held  liable.  Section  28  of  the  Negotiable 
Instruments  Act  runs  as  follows: — 

"An  agent  who  signs  his  name  to  a  pro- 
missory note,  bill  of  exchange  or  cheque 
without  indicating  thereon  that  he  signs  as 


86 


NATIONAL  BANK  OP  UPPER 


agent,  or  that  h$  does  not  intend  thereby  to 
incur  personal  responsibility,  is  liable  per- 
sonally on  the  instrument,  except  to  those 
!«rho  induced  him  to  sign  upon  the  belief 
that  the  principal  only  would  be  held 
liable/; 

The  Subordinate  Judfee  has  relied  on  the 
case,,  Ytnuganti  China  Venkatara^janim  v. 
Kdtdgiri  ,Venkata  Narasimharayanim  (1)> 
as  authority  for  holding  that  "If  a  negoti- 
able instrument  does  not    set    out  clearly 
th^£  jifie  maker  is  not  personally  liable  the 
fact  of  the  knowledge  of  the  payee  that  the 
executant  did  not  intend    to  incur  personal 
liability  is  irrelevant'*,  and  we  see  no  reason 
for  dissenting  from  this  pronouncement.  If 
the  evidence  had  only  proved    as  much  as 
was  contended  in    the    pleadings  ^qf   the 
Counsel  of  defendant  No.  1,  the  decision  of 
the    Subordinate  Judge  would  have  been 
correct  in  rmy  opinion,    but    the  evidence 
proves  much  more    than    this.  ,It    proves 
th^t  the  Manager  Ham  Nath  actually  induced 
the  defendant  No.  1  to  sign  the    pro-note 
uppii  ttie  l-(-li(-f  llinf  Tttshambhar  Nath  only 
jvould.bel.'^i  li*u;!o.    It  is  on  a  finding  of 
fact  and  ii<>l  ••  ii.'^iinis  of  law  that  I  dissent 
from  .the.  conclusion  of    the    Subordinate 
Judge*  ,Tbe  evidence  on  this  matter  con- 
sjstft  pi;,  th§(  oral  evidence   of  Bansi  Dhar 
defendant  Xo.  1  and  Bishambhar  Nath  and 
on  certain  documentary  evidence  furnished 
by  th$t  account  IK:<  u-   «f  the  I|ank.    The 
Manager  Jltin*  Nir.  ii  ri»|-iu  was  dead  before 
,tbi9  eui(t  vl,-.-  i.-io',;j!l.i.  l!.e  Banfr  could  not, 
therefore,  produce  him.    The  plaintiff  Bank 
cauflot  in  ^reason  object  to  reliance  being 
placed  on  the  evidence  of  Bansi  Dhar   who 
was    called  as  a  witness  by  the  plaintiff. 
Moreover,  as  the  case  set  up  in  the  plaint 
that  thq    money  was  borrowed    by  Bansi 
I)har,for  his  own  uses    has  been  clearly 
disproved,  and  this  is  now  admitted,   the 
Bank  could  only  succeed    by    reliance  on 
the  facts    proved    from    the    evidence    of 
two  witnesses.      In  his  examination- 
ief  Bansi  Dhar  stated  as  follows; — 
was.  on  account  of  BisbambharNath's 
and  Pandit  Ram  Nath's   assurance 
that   I  signed  the  pro-note  in  suit.    There 
was  no   'liil:  1   :<!!^on,    I   had    no   dealing 
joihUy  -A  ;: !:  1'a:  <hi  Ram  Nath     We  did  not 
incur  any,  other  liability  eUher  before  or 
after  the  suit  at  the  binding  of  Pandit  Karh 
Nath.  ,,  , 

"The  assurance  given    by  Pandit  Ram 
Nath  was  tha'  JiM.s.-l.^r  Nath,  w$s  t'alc- 
(i)  21  hid,  Cas,  ,4      :.•/    ."    ",  N,  1005;  14 M.  L, 
,  502, 


INDIA  t>.  BANSI  DHAB.  [92  1  0.  1926] 

ing  the  loan  and  would  re-pay  itt  and 
he  could  not  take  the  loan  in  his  own  name 
as  he  was  a  Director  He  also  said  that 
there  was  no  concern  with  me  and  that 
Rai  Sahib  would  pay  back  the  money, 
filpliambahar  Nath  said  he  was  a  Director, 
ajid  could, not  take  the  money  in  his  name 
and  it  was  necessary  that  somebody  should 
sign  for  him.  I  believed  that  BisMmb'har 
Nath  could  not  borrow  money  jfroin  the 
Bank  by  signing  himself. 

"&ai  Sahib  had  negotiated  the  loan  with 
Pandit  Ram  Nath  and  said  that  he  was  the 
Director  and  could  not  take  the  money  in 
his  name  and  it  was  necessary  that  some~ 
body  should  sign  for  him.  I  believed  that 
Bishambhar  Nath  could  Hot  borrow  money 
from  the  Bank  by  signing  himself. 

4>Rai  Sahib  had  negotiated  the  loan  with 
Pandit  Ram  Nath  and  said  that  he  was  the 
Director  and  could  not  take  the  loan  him- 
self. Pandit  Ram  Nath  said  that  Rai 
Sahib  was  liable  for  the  money  and  that  I 
was  to  have  no  concern  with  it.  I  do  not 
know  if  Ram  Nath  had  the  authority  to 
advance  more  than  Rs.  500  or  not." 

In  this  statement  he  cleanly  states  tfrat 
the  31i'.!'iairi:r  faun  Nath  had  said  that  Rai 
Sahiii  u  a?  liiiu1  •  for  the  money  and  {hat  he 
was  to  have  no  concern  with  it.  Bisham- 
bhar Nath  was  called  as  a  witness  by  the 
defendant,  and  corroborates  T-  •>  'vf--:.  ;iir;j. 
although  to  do  so  was  clearh  npi>..-:  r.i^ 
own  interest  in  escaping  •••!:;:>•  U.- 
shambhar  Nath  in  his  evidence  has  stated: 

"I  had  borrowed  the  amount,  covered  by 
this  pro-note  from  the  plaintiff  Bank.  As  I 
could  dot  borrow  this  amount  in  my  own 
name  from  the  bank  on  nro-note,  I  got  the 
pro  note  signed  by  Bansi  Dhar  defendant  No. 
1  on  the  advice  of  Pandit  Ram  Nath  Sapiu, 

then  Manager  and  Director  of  the  Bani 

...I  was  talking  to  Pandit  Ram  Nath  P&pm 
in  the  capacity  of  the  Manager  of  the  Bank 
and  Bansi  Dhar  was  also  talking  to  him  in 

the  same  capacity The  sum  of  Rs.  20,000 

was  borrowed  to  pay  off  some  other  account 
in  the  plaintiff  Bank  payable  by  me  and 
Pandit  Ram  Nath  Sapru,  thelate  Manager  ol 
the  Bank,  I  do  not  remember  in  whose 
name  this  account  was  payable." 

This  evidence,  which  we  believe,  clearly 
shows  that  not  only  Bishambfcar  Nath 
Tandon,  the  third  party,  but  also  the 
Mnr.r:ir-'-!-  Ram  Nath  induced  Bansi  Dhar, 
defendant  No.  1,  to  sigfc  the  pro  note  tapou 
the  belief  that  Bishambhar  Nath  only  woiald 
be  held  liable.  It  is  also  to  be*  noted  that 


[92  L  0. 1926] 

the  Bank  only  brought  the  suit  after  the 
death  of  the  Manager  Ram  Nath  Sapru,  from 
which  it  may  be  inferred  that  Ram  Nath 
himself  was  aware  that  it  would  not  be 
advisable  to  sue  the  defendant  No.  1.  There 
is  also  strong  documentary  and  other  evi- 
dence to  support  the  view  that  Bansi  Dhar 
was  induced  to  sign  the  pro-note  in  this  way. 
As  the  lower  Court  remarks  in  its  judgment 
page  276,  Ex.  15,  cash  book  of  the  plaintiff 
Bank,  shows  that  Rs.  20,000  were  credited 
to  the  current  account  of  Bishambhar 
Nath  on  the  28th  December  1917,  the  next 
opening  day  after  the  22nd  December  on 
which  date  the  pro-note  in  suit  was  execut- 
ed by  Bansi  Dhar.  This  important  exhibit 
has  not  been  printed  by  an  oversight.  I 
find,  however,  that  just  the  same  thing  was 
done  in  the  following  December  1918.  Ex- 
hibit 16,  which  is  printed,  is  the  cash  book 
for  Monday  the  30th  December  1918.  There 
Bishambhar  Nath  Tandon  is  credited  with 
Rs.  50,000  and  one  Radha  Kishen  is  de- 
bited with  Rs.  50,000  on  a  pro-note.  The 
Subordinate  Judge  attempts  to  get  over 
this  evidence,  that  the  Manager  Ram  Nath 
himself  induced  defendant  No.  1  to  sign  the 
pro-note  by  holding  out  that  he  would  not 
be  liable  under  it,  by  two  arguments. 

"In  the  first  place  it  is  not  said  by  Bansi 
Dhar  that  Ram  Nath  had  told  him  that  the 
plaintiff  Bank  would  not  hold  him  liable/' 

I  have  already  quoted  the  statement, 

"It  was  on  account  of  Bishambhar  Nath's 
request  and  Pandit  Ram  Nath's  assurance 
that  I  signed  the  pro-note." 

I  have  also  quoted  the  evidence  of  Bi- 
shambhar Nath  Tandon.  The  Subordinate 
Judge  was,  therefore,  wrong  on  this  point. 
Next  he  has  stated,  that  even  if  Ram  Nath 
had  held  out  the  inducement  it  would  not, 
in  his  opinion,  have  helped  the  case  for  the 
defendant.  He  then  proceeds  to  draw  a 
distinction  between  the  Manager  acting  on 
behalf  of  the  Bank  and  acting  in  a  private 
capacity.  He  thinks  that  the  Manager  got 
the  pro-note  executed  on  behalf  of  the  Bank 
but  gave  the  assurance  in  his  individual 
capacity.  This  distinction  appears  to  me 
to  be  an  impossible  one  in  view  of  the 
language  of  s.  199  of  the  Contract  Act.  It 
i:8  common  ground  that  the  advance  to  de- 
fendant No.  1  by  the  Manager  of  the  Bank 
wate  beyond  the  powers  of  the  Manager — 
See  Ex.  Bll,  pago  5  of  Part  III,  whicn  is  a 
<k)]py  of  a  resolution  passed  by  tie  Directors, 
tod  which  fun.s  ai>  follows;— 

"Besolved  that  the  General  Manager  be 

7 


NATIONAL  BANK  OP  UPPER  INDIA  V.  BANSt  DHAR. 


9?* 


empowered  to  make  advances   on  approved 
securities  to  the  extent  of  Rs.  500  only/1 

Now  in  order  to  bring  this  suit  the  Bank 
had  to  ratify  the  Manager's  unauthorised 
action  and  by  bringing  the  suit  it  may  be 
deemed  to  have  done  so.  But  under  s.  199 
of  the  Contract  Act  a  person  ratifying  any 
unauthorised  act  done  on  his  behalf  ratifies 
the  whole  of  the  transaction  of  which  such 
act  formed  a  part.  The  Bank  could  not 
disown  any  inducement  made  by  the  Mana- 
ger at  the  time  of  getting  the  pro  note  exe- 
cuted. 

It  is  clearly,  therefore,  proved  in  my 
opinion  that  Bansi  Dhar  is  not  liable  per- 
sonally on  the  pro-note  inasmuch  as  he  was 
induced  by  the  Bank's  Manager  to  sign 
upon  the  belief  that  Bishambhar  Nath  only 
would  be  held  liable.  The  form  in  which 
the  case  has  been  argued  in  appeal  is  that 
there  was  no  consideration.  Section  28  of 
the  Negotiable  Instruments  Act  will  only 
apply  if  Bansi  Dhar  be  held  to  be  the  agent 
of  Bishambhar  Nath  Tandon.  This  has  not 
been  pleaded  by  Bansi  Dhar's  Counsel  in  so 
many  words,  but  it  was  obviously  what  was 
meant  when  Syed  Wazir  Hasan  took  up 
the  plea  on  his  behalf  that  the  signature 
was  benami.  The  matter  has  been  argued 
in  this  Court  on  the  ground  that  there  was 
no  consideration.  For  the  plaintiff  it  was 
urged  that  the  consideration  passing  from 
the  Bank  to  the  defendant  No.  1  was  that 
the  Bank  agreed  to  transfer  the  liability  in 
respect  of  Rs.  20,000  due  from  Bishambhar 
Nath.  Tandon  towards  the  Bank  to  the  de- 
fendant No.  1.  Enough  has  been  said  to 
show  that  there  was  no  agreement  by  the 
Manager.  The  agreement  by  him  was  that 
the  defendant  No.  1  should  not  be  held 
liable  at  all.  It  is  urged,  however,  that 
actual  forbearance  at  the  request  of  the 
defendant  would  be  a  sufficient  considera- 
tion although  there  was  no  con  tract  to  for- 
bear. It  is  not  shown  that  the  defendant 
ever  asked  the  Manager  tp  forbear  proceed- 
ings against  Bishambhar  Nath  Tandon  on 
the  book  debt.  On  the  contrary  the  Mana- 
ger told  the  defendant  that  he  had  no 
proceed  against  Bishambhar 
\  i  •  :  but  in  order  to  prevent  the 
Directors  making  him  do  so  he  wanted  the 
pro-note  executed  by  the  defendant  No.  1. 
I  do  not  agl-fce  with  fin-  ~:s  ii.'.g  6f  the  lower 
Court  that  it  was  ulway-  {'•.'•:.  ">9  the  plaint- 
iff Bank  to  redognise  the  pro-note  in  stiit. 

Coming  to  the    question  of    limitation   I 
should'  hav6  beeh  disposed  to  hold  that  ii  the 


98 


RAMA  FAO  V,   RANGASWAMT  RAO. 


pro-note  had  been  executed  by  defendant 
No.  1  in  pursuance  of  an  agreement  between 
himself  and  Bishambhar  Nath,  that  he 
•would  execute  the  pro-note  but  that  Bi- 
ehambhar  Nath  would  pay  the  interest  on  it 
and  also  the  principal,  then  this  would  have 
been  sufficient  evidence  of  an  implied  con- 
dition that  Bishambhar  Nath  should  pay 
the  interest  as  the  duly  appointed  agent 
of  defendant  No.  1,  In  this  view  the  pay- 
ment of  the  23rd  November  1918  by  Bis- 
hambhar Nath  would  have  saved  limita- 
tion. The  facts,  however,  are  different.  The 
interest  was  paid  by  Bishambhar  Nath  not 
in  consequence  of  any  such  agreement  be- 
tween defendant  No.  1  and  Bishambhar 
Nath,  but  in  consequence  of  an  under- 
standing between  the  defendant  No.  1  and 
the  Manager  of  the  Bank.  In  the  light  of 
such  an  understanding  Bishambhar  Nath's 
payment  cannot  be  said  to  have  been  on 
behalf  of  the  defendant  No.  1.  It  was  a 
payment  on  behalf  of  himself,  inasmuch  as 
the  Manager  wss  still  holding  Bishmabhar 
Nath  to  be  the  real  debtor.  If  the  finding 
of  the  Subordinate  Judge  as  to  the  liability 
of  defendant  No.  1  under  the  pro-note  had 
been  correct,  it  may  well  have  been  that  his 
finding  as  to  limitation  could  not  have  been 
upheld.  In  my  view  of  the  case,  however, 
the  suit  must  fail  not  only  because  the  suit 
is  time  barred  but  also  because  there  was 
no  consideration  for  the  defendant  No.  1 
signing  the  pro -note  in  his  personal  capa- 
city. If  he  signed  the  pro-note  on  behalf  of 
Biahambhar  Nath  Tandon  then  he  did  this 
on  the  inducement  of  the  Bank  and  the 
Bank  must  proceed  against  Bishambhar 
Nath  Tandon.  In  my  view  this  appeal 
should  be  dismissed  with  costs. 

Stuart,  C.  J.— I  concur  in  the  finding 
of  my  learned  brother.  I  agree  with  him 
in  accepting  the  evidence  of  Bansi  Dhar  and 
Bishambhar  Nath  as  true  upon  the  points 
to  which  he  has  referred.  This  evidence 
is  strongly  corroborated  by  other  evidence. 
I  agree  that  there  was  no  consideration  for 
the  execution  of  the  promissory  note  by 
Bansi  Dhar  and  I  further  find  that  there 
was  no  payment  of  interest  due  upon  the 
promissory  note  made  by  Bansi  Dhar  or  by 
his  agent  duly  authorised  in  this  behalf.  I, 
therefore,  agree  that  the  appeal  should  be 
dismissed  with  costs. 

By  the  Court.— The  appeal  is  dismiss- 
ed with  costs. 

#,  H,  Appeal  dismissed. 


[*2  L  0. 1926] 

MADRAS  HIGH  COURT* 

CIVIL  REVISION  PETITION  No.  761  OF  1922. 

October  10,  1924. 

Present:— -Mr.  Justice  Waller. 

M.  RAMA  RAO— PETITIONER 

versus 
K.  RENGASWAMY  RAO— RESPONDENT. 

Guardians  and  Wards  Act  (VI I  of  1890),  88.  W,  1^1 
(3)— Guardian,  discharge  of,  application  foi — In- 
vestigation into  accounts—Court,  power  of. 

On  an  application  by  a  person      "  *  from 

guardianship  under  s.  40  of  the  •  •  .  Vards 
Act,  the  Court  has  not  only  to  order  under  s.  41  (3) 
delivery  of  accounts  and  property  in  his  possession, 
but  has  power  to  direct  an  investigation  into  accounts 
before  ordering  discharge. 

Nabu  Bepan  v.  Sheikh  Mahomed,  5  C.  W.  N.  207, 
distinguished. 

Petition,  under  s.  115  of  Act  V  of  1903, 
praying  the  High  Court  to  revise  the  order 
of  the  District  Court  of  Nellore,  dated  the 
23rd  day  of  January  1922,  in  I.  A.  No.  16 
of  1920,  (0.  P.  No.  92  of  1913). 

Mr.  M.  Patanjali  Sastri,  for  the  Peti- 
tioner. 

Mr.  K.  Krishnaswami  lyengar,  for  the 
Respondent.  , 

ORDER.  -In  January  1920  respondent 
applied  to  be  discharged  from  guardian- 
ship, Two  years  later  the  District  Judge 
granted  him  a  discharge  under  s.  40  of  the 
Act,  at  the  same  time  directing  him  under 
s.  41  (3)  to  deliver  his  accounts  and  all 
property  in  his  possession  belonging  to  the 
minor.  In  doing  so,  the  District  Judge 
expressed  the  opinion  that  he  could  not 
make  an  investigation  into  the  accounts, 
The  ruling  he  relied  on  Nabu  Bepari  v. 
Sheikh  Mahomed  (1),  has  no  application 
here,  for  it  dealt  with  the  case  of  a  minor, 
who  had  come  of  age. 

When  the  Court  has  ordered  a  guardian 
under  s.  41  (3)  to  deliver  accounts  and  pro- 
perty in  his  possession,  there  is  still  a 
further  question  to  be  decided,  that  is  to 
say,  whether  he  is  to  be  discharged  from 
further  liability  under  the  next  sub-section. 
I  am  unable  to  see  how  it  is  to  be  decided 
without  an  investigation  into  the  accounts* 
I  cannot  for  a  moment  concede  that  the 
Court  is  bound  to  accept  without  scrutiny 
any  account  he  chooses  to  submit  or  to 
allow  him  to  deliver  only  such  property  as 
he  admits  himself  to  possess. 

in  this  case,  the  District  Judge  has  not 
yet  passed  any  order  under  s.  41  (4).  The 
records  will  be  returned.  The  parties  may 
apply  to  him  for  further  orders.  There 
will  be  no  order  as  to  costs  in  this  Couit. 
v,  N.  v.  Petition  allowed, 

(1)  5  0.  W,  N,  207, 


I.  0. 1926J 


MAHIPAL  SINGH  V.  SARJOO  PRASAD. 


OUDH  CHIEF  COURT. 

SECOND  RENT  APPEAL  No.  39  OF  1925. 

November  11,  1925. 
Present: — Mr.  Justice  Misra. 
MAHIPAL  SINGH— PLAINTIFF- 
APPELLANT 

versus 

SARJOO  PR  A3  AD—DEFENDANT— 
RESPONDENT. 

Adverse  possession — Possession  under  invalid  title 
—Co-sharers— Realization  of  rent  by  one  co-sharer. 

If  possession  is  acquired  by  a  person  imder  an  in- 
valid title  and  he  continues  to  remain  in  possession 
for  more  than  12  years,  although  the  document  relating 
to  his  title  may  be  invalid  for  want  of  registration 
or  any  other  ground,  yet  the  possession  having  lasted 
for  more  than  12  years  the  title  becomes  an  un-assail- 
able  one.  [p.  100,  col.  L] 

Therefore,  where  a  party  originally  enters  into 
possession  under  an  unregistered  sale-deed,  the  defect 
in  his  title  is  cured  by  his  having  been  in  possession 
for  over  12  years  [ibid  ] 

Varada  Pillai  v.  Jeevar  at /mammal,  53  Ind.  Cas  001; 
43  M  244;  (1919)  M.  W.  N  724;  10  L  W.  679,  24  G  W. 
N.  346;  38  M.  L.  J  313;  18  A  L  J  274,  46  I  A  285,  2 
LT.  P.  L.  E.  (P.  0.;  04;  22  Bom.  L.  K.  444  (P.  C ), 
followed. 

If  a  co-sharer  has  been  in  possession  of  a  particular 
land,  his  possession  cannot  be  considered  adverse 
against  the  other  co -sharers,  and  his  possession  must 
be  deemed  to  be  on  behalf  of  them  all  In  order  to 
establish  adverse  possession  in  such  a  case  a  co-sharer 
has  to  establish  that  he  expressly  denied  the  title  of 
the  other  co-sharers  and  remained  in  possession  after 
such  denial  for  over  12  years,  [ibid.] 

Therefore,  the  mere  fact  that  a  co-sharer  hag  been 
realizing  rents  of  certain  plots  of  land  in  which  he  is 
a  co-sharer,  would  not  establish  that  he  has  been  in 
adverse  possession  so  as  to  extinguish  the  title  of  the 
other  co-sharers  [ibid  ] 

Corea  v.  Appuhamy,  (1912)  A.  C  230;  81  L,  J.  P.  0. 
151;  105  L  T.  836,  Jogmdra  Nath  v.  Baladeb  Das,  35 
0  9G1,  12  C.  W.  N.  127,  6  G  L.  J.  735  ond  Ahmad  Raza 
Khan  v.  Ram  Lai,  26  Ind.  Gas.  922;  13  A.  L.  J.  201, 
37  A  203,  relied  on. 

Second  rent  appeal  against  the  decree 
and  judgment  of  the  District  Judge, 
Lucknow,  dated  the  16th  March  1925  re- 
versing those  of  the  Assistant  Collector 
First  Class,  Lucknow,  dated  the  25th  Octo- 
ber 1924. 

Messrs.  Ganesh  Prasad  and  Sheo  Prasad, 
for  the  Appellants 

Mr.  Hakimuddin  Siddique,  for  the  Re- 
spondents. 

JUDGMENT.— This  is  an  appeal  aris- 
ing out  of  a  suit  for  profits  under  s.  108 
ci.  15  of  the  Oudh  Rent  Act,  m  respect  of 
land  situate  in  Mohal  Sarju  Prasad,  Pargana 
Nigohan,  Tahsil  Mohanlal  Gunj,  District 
Lucknow  The  defendants  denied  the  title 
of  the  plaintiff  and  urged  in  defence  that 
they  had  been  in  adverse  possession  of  the 
share  of  the  plaintiff  and  that  consequently 
he  was  not  entitled  to  claim  any  profits. 


The  learned  Assistant  Collector  decreed 
the  plaintiff's  claim  for  Rs.  27-8-6  against 
the  defendant  No.  1. 

On  appeal  the  learned  District  Judge 
allowed  the  appeal  and  dismissed  the  plaint-, 
iff's  suit  with  costs  in  both  the  Courts. 

In  second  appeal  it  is  contended  that 
the  decision  of  the  learned  District  Judge 
with  regard  to  adverse  possession  of  the 
defendants  is  incorrect  and  that  the  plaint- 
iff's suit  should  have  been  decreed  as  was 
done  by  the  learned  Assistant  Collector. 

In  order  to  decide  the  plea  of  adverse 
possession  it  is  necessary  that  I  should  go 
into  some  of  the  facts  of  the  case.  It 
appears  that  on  the  2nd  of  November  1883 
three  persons  Gaya  Singh,  Ganesh  Singh 
and  Diwan  Singh  sold  their  shares  in 
villages  Lalpur  and  Chak  Kaitha  to  one 
Jokhelal  alias  Zaoki  Lai,  father  of  Sarju 
Prasad  defendant-respondent  No.  1.  In 
the  said  sale-deed  certain  plots  of  land 
which  consisted  of  grove  land  and  cultivat- 
ed land  were  exempted  from  sale.  The 
share  of  each  of  the  vendors  in  the  culti- 
vated plots  and  in  the  grove  land  was  one- 
third  each.  Ganesh  Singh  had  two  sons, 
one  Gur  Dayal  and  the  other  Mahipal 
Singh  who  was  the  plaintiff  in  the  Court 
below  and  is  now  the  appellant  in  this 
Court,  The  one-third  share  which  Ganesh 
Singh  had  in  the  grove  land  devolved, 
after  his  death,  on  his  two  sons  named 
above,  Gur  Dayal  sold  half  of  his  father's 
one-third  which  he  had  inherited  by  means 
of  a  sale-deed,  dated  the  23rd  of  December 
1903  to  defendant  Sheo  Dayal.  Mahipal 
Singh  is  still  in  possession  of  his  one-sixth 
share  in  the  grove  land.  So  far  as  the 
cultivated  plots  of  land  went  Ganesh  Singh 
sold  his  one-third  share  in  them  to  Sheo 
Dayal  respondent  under  an  unregistered 
deed,  dated  the  9th  of  June  1896  forRs.  200. 
The  respondents  contended  that  they  were 
in  possession  of  the  plaintiff's  share  in  the 
culti\ated  plots  of  land  by  virtue  of  the 
above  mentioned  sale-deed  and  that  they 
were  in  adverse  possession  with  regard  to 
the  plaintiff's  one-sixth  share  in  the  grove 
land. 

It  is  clearly  proved  from  the  facts  stated 
above  that  so  far  as  the  cultivated  plots  of 
land  are  concerned  the  defendant's  posses- 
sion amounts  to  an  adverse  possession. 
Although  the  deed  was  an  unregistered  deed 
yet  it  is  clear  from  the  Patwaris  evidence 
on  the  record  that  the  vendee  obtained 
possession  of  those  plots  of  land  from  the 


100 


KANDASAMI  CHBTTIAR  V.  G.  F.  fl,  FOtJLKES. 


date  of  the  sale.  The  defendants1  have, 
therefore,  "been  in  possession  of  the  plaint- 
iff's share  in  those  plots  ever"  since  the  year 
1896  when  the  sale-deed  was  executed  and 
have  remained  in  possession  for  a  period  of 
over  26  years.  Although  the  defendants 
originally  entered  into  possession  under  an 
unregistered  sale-deed,  yet  the  defect  in 
their  title  has  now  been  cured  by  their  hav- 
ing been  in  such  possession  for  over  12 
years.  This  principle  is  clearly  established 
by  a  decision  of  their  Lordships  of  the 
Privy  Council  reported  in  Vaiada  Pill  a  i 
v.  Jecvarath7iammal  (1).  Their  Lordships 
have  held  that  if  the  possession  is  acquired 
by  a  person  under  an  invalid  title  and  he 
continues  to  remain  in  possession  for  more 
than  12  yeara,  although  the  document  relat- 
ing to  his  title  may  be  invalid  for  want  of 
registration  or  any  other  ground,  yet  the 
possession  having  dasted  for  more  than  12 
years  the  title  becomes  an  unassailable  one. 
In  my  opinion  the  plaintiff's  claim  to  profits 
with  respect  to  his  share  in  the  cultivated 
plots  of  land  cannot  be  maintained. 

Regarding  the  plaintiff's  claim  with  re- 
spect to  his  share  in  the  grove  plot  it  is 
equally  clear  tome  that  the  defendants  have 
not  been  able  to  establish  their  claim  by 
adverse  possession.  I  have  not  been  able  to 
follow  the  judgment  of  the  learned  District 
Judge  on  this  poiilt.  It  is  clear  that  the 
plaintiff s share  in  groveland  amounts  to  one- 
sixth  and  that  the  defendants  are  co-gharers 
in  those  very  plots  of  land.  The  mere  fact 
that  the  defendants  have  been  realizing 
rents  of  those  plots  would  not  establish  that 
they  have  been  in  adverse  possession  of  the 
land.  It  is  well  established  rule  of  law 
that  if  a  co-sharer  has  been  in  possession 
of  a  particular  land,  his  possession  cannot 
be  considered  adverse  against  the  other  co- 
sharers,  and  his  possession  must  be  deemed 
to  be  on  behalf  of  them  all.  In  order  to 
establish  adverse  possession  in  such  a  case 
a  co-sharer  has  to  establish  that  he  express- 
ly denied  the  title  of  the  other  co-sharers 
and  remained  in  possession  after  such  denial 
for  over  12  years,  vide  Corea  v.  Appuhawy 
(2)  Jogendra  Nath  v.  Baladeb  Das  (3)  and 
Ahmad  Raza  Khan  v.  Ram  Lai  (4).  It, 
therefore,  appears  to  me  to  be  quite  clear 

(1)  53  Ind.  Cas.  901;  43  M.  244,  (1919)  M.  W.  N.  724: 
10  L.  W.  679;  24  C.  W.  N.  346;  38  M.  L.  J.  313;  18  A. 
L.  J.  274,  46  I.  A.  285;  2  U.  P.  L.  R.  (P.  Q.)  64;  22  Bom. 
L.  R.444  (P.O.). 

(2)  (1912)  A.  C.  230;  81  L.  J,  P.  C,  151;  105  L,  T.  836, 

(3)  35  C.  961;  12  0.  W.  N,  127;  6  0.  L.  J,  735. 
(4;  26  Ind,  Cae,  922;  13  A,  L.  J,  204;  37  A,  203, 


[921.0.1926] 

that  the  tille.of  the  plaintiff  to  claim  profits 
with  regard  to  one-sixth  of  the  grove  land  is 
not,  in  any  way,  extinguished  by  adverse 
possession.  \ 

I,  therefore,  allow  this  appeal  to  this  extent 
that  I  decree  the  plaintiffs  claim  with  re- 
spect of  his  share  of  profits  in  the  grove 
land  which  was  agreed  upon  in  the 
Trial  Court  as  amounting  to  Rs.  15  for  3 
years  in  suit.  The  plaintiff  is  also  entitled 
to  a  sum  of  KP.  8-6  for  the  produce  of  chari 
in  plots  Nos.  466  and  518  for  one  year,  name- 
ly 1330  F  ,  these  plots  being  also  included 
in  the  grove  land.  In  the  result  I  decree 
the  plaintiff's  claim  for  Rs.  15-8  6  with  pro- 
portionate costs  in  all  the  three  Courts,  the 
rest  of  the  claim  will  stand  dismissed  with 
costs  in  all  the  Courts. 

G.  H.  Appeal  partly  allowed. 


MADRAS  HIGH  COURT. 

CIVIL  BEVISION  PETITION  No.  924  OF  1924. 

September  24,  1925. 

Present ;— Mr.  Justice  Ramesam. 

D.  A.  KANDA8AMI  CHETTIAR— 

PETITIONER 

versus 
G.  F.  F.  FOUIJKEJ8— RESPONDENT. 

Madrtis  Local  Boards  Act  (XIV  of  1920),  ss.  35,  56 
(It)— Failure,  of  member  to  attend  three  consecutive, 
meetings  of  District  Board — Restoration,  effect  of — 
Fiebh  oath  of  allegiance,  whether  necessaty — Taluk 
Board  member,  election  of,  to  District  Board--  Loss  of 
and  restoration  to  membership  of  Taluk  Board,  effect 
of — Election  petition— Amendment  application  after 
expiiy  of  period  -fixed ,  whether  permissible 

\Vhereamember  of  a  District  Board  fails  to  attend 
at  the  meetings  of  the  Board  for  three  consecutive 
months  and  is  restored  to  office  under  s.  56  (4)  of 
the  Local  Boards  Act  by  a  resolution  of  the  Board, 
he  does  not  become  a  new  member  but  is  merely 
restored  to  the  office  of  membership  for  the  balance 
of  the  period  for  which  he  was  originally  elected  arid 
a  fresh  oath  of  allegiance  is,  therefore,  unnecessary. 
[p  .101,  cols.  1  &  2.] 

Where  a  member  of  a  Taluk  Board  who  has  been 
elected  to  the  District  Boaid  loses  hia  membership 
of  the  former  by  absence  for  three  consecutive 
months  and  thereby  loses  his  membership  of  the 
District  Board  also  and  is  then  restored  under  s.  56 
(4)  of  the  Local  Boards  Act  to  the  membership  of  the 
Taluk  Board  by  a  resolution  «f  the  said  Board,  euch 
resolution  cannot  have  the  effect  of  restoring  him  to 
the  membership  of  the  District  Board  as  well.  [t>. 
102,  col.  1  ] 

,  v.  Sethuratna  Iyer,  87  Jnd.  Gas.  363; 
:  ,        '    ii    M.)  1034,  followed. 

An  application  for  an  amendment  of  an  election 
petition  filed  after  the  expiry  of  the  days  allowed  for 


[92  I.  0. 1926] 


KANBASAMI  OHETTIAR  V.  0.  F.  P.  FOTTLKES, 


101 


an  objection  petition  is  not  unsustainable  and  may  in 
the  discretion  of  the  Judge  be  allowed  |p  102,  col.  1  j 

Section  35  of  the  Madras  Local  Boards  Act  is 
inapplicable  to  an  election  petition  and  cannot  cure 
defeats  in  an  election,  [p.  102,  col  2,]f 

Petition,  under  s.  115,  0.  P.  0.,  and  s.  107 
of  the  Government  of  India  Act,  praying 
the  High  Court  to  revise  the  order  of  the 
District  Court,  Salem,  dated  the  llth 
November  1924,  in  0.  S.  No,  52  of  1924. 

Messrs.  T.  M.  Krishnaswami  Iyer  and  V. 
Ganpathi  Iyer>  for  the  Petitioner. 

Mr.  S.  Varadachari,  for  the  Respondent. 

JUDGMENT.-— This  is  a  revision 
petition  against  the  order  of  the  District 
Judge  of  Halem  <  refusing  to  set  aside  the 
election  of  the  President  of  the  District 
Board  of  Salem  held  on  29th  July  1924. 
The  first  ground  alleged  in  the  petition 
and  repeated  before  me  here  is  that  five  of 
the  voters, namely,  Arunachalla  Goundan,  2. 
Bornrfianna  Ohetty,  3.  Rahu,  4.  Chinnappa 
Qoundanand  5.  VasudevaReddi  have  ceased 
to  hold  their  office  as  members  of  the  District 
Board  by  reason  of  their  non-attendance  at 
the  meetings  of  the  District  Board  for  three 
consecutive  months.  Four  of  these  were 
elected  and  one  was  nominated.  Though 
all  the  live  were  restored  to  their  office  by 
a  resolution  of  the  Board  under  s.  56  (4)  of 
the  Act,  it  is  said  (1)  that  they  cannot  exer- 
cise the  functions  of  the  members  of  a 
Board  at  the  meeting  at  which  they  were 
restored,  (2)  that  they  ought  to  take  afresh 
oath  of  allegiance  and  until  a  fresh  oath  of 
allegiance  was  taken,  they  cannot  exercise 
the  functions  of  members  of  the  District 
Board  and  in  this  case  no  such  fresh  oath  or 
ullr'sjrinnn*  \v,i*  taken. 

Tho  Di-ilnr;  Judge  was  of  opinion  that 
thesa  members  were  not  disqualified  and 
their  membership  did  not  cease  as  they 
were  not  absent  for  three  consecutive  meet- 
ings. It  appears  that  4  of  them  were  absent 
from  one  meeting  and  the  5th  absent  from 
two  consecutive  meetings,  but  in  two  of  the 
three  months  preceding  the  meeting  of  the 
29th  July,  the  Board  had  not  met  at  all, 
infringing  r.  1  of  the  rules  regulating  the 
]>nvrcdinKS  of  Local  Board  (Hch.  11  of  the 
Av\'e.  I:  'is  unnecessary  to  consider  this 
question  as  th6  members  were  all  restored 
to  the  office  and  as  I  have  come  to  the  con- 
clusion that  the  other  objections  against 
their  membership  cannot  stand.  If,  at  the 
meeting  of  the  29th  July,  they  were  first 
restored  to  membership  and  afterwards  the 
Board  proceeded  to  the  election  of  the  Presi- 
dent, I  do  not  see  anything  irregular  or 


illegal  in  this  procedure.    Therefore,  there 
is  no  substance  in  the  first  ground, 

The  second  ground  is  that  a  fresh  oath  of 
allegiance  must  be  taken.  The  effect  of 
the  restoration  of  a  member,  though  it  may 
not  be  retrospective  as  to  make  him  a 
member  of  the  Board  during  the  preced- 
ing 3  months  or  so  as  to  restore  to  him  any 
privileges  besides  the  mere  membership 
such  as  presidentship  or  vice-presidentship 
which  he  lost  along  with  the  membership, 
as  was  held  by  me  in  Devasigamony  v, 
Sethuiatna  Iyer  (1),  is  certainly  to  restore 
him  to  the  office  of  membership  for  the 
balance  of  the  period  for  which  he  was 
originally  elected  or  nominated  It  is  not 
that  he  becomes  a  new  member  getting  a 
fresh  full  period  of  office  from  the  date  of 
the  restoration.  Whenever  there  is  a  fresh 
election  or  fresh  nomination  no  doubt  a 
fresh  oath  of  allegiance  ought  to  be  taken. 
But  in  the  case  of  a  restored  member  he  is 
restored  to  his  former  membership,  that  is, 
the  membership  he  previously  had  by  elec- 
tion or  by  nomination  completed  by  the 
oath  of  allegiance  which  he  had  previously 
taken.  If  it  be  said  that  he  does  not  get  the 
benefit  of  he  prior  election  or  nomination 
and  the  oath  which  he  had  taken,  it  would 
be  creating  a  fourth  class  of  members  not 
contemplated  by  the  Act.  The  Act  con- 
templates only  ex  officio  members,  elected 
members  and  nominated  members.  It  is 
clear,  therefore,  that  the  restoration  makes 
him  the  elected  or  nominated  member  he 
previously  .was.  If  so,  he  gets  also  the 
benefit  of  the  previous  oath  of  allegiance. 
I  do  not  think,  therefore,  there  is  any  sub- 
stance even  in  the  second  ground.  The 
result  is,  that  so  far  as  these  five  voters  are 
concerned,  the  petition  fails. 

The  next  ground  taken  is  that  one  Mekha 
Pillai  a  member  of  the  Taluk  Board,  Salem 
who  had  been  elected  to  the  District  Board 
lost  his  membership  of  the  Taluk  Board  by 
absence  for  three  consecutive  months  and 
thereby  lost  his  membership  of  the  District 
Board  also.  He  was  then  restored  to  the 
membership  of  the  Taluk  Board  by  a 
resolution  of  the  Taluk  Board  dated  the 
29th  of  March,  1924.  The  contention  is 
that  the  resolution  of  the  Taluk  Board 
cannot  have  the  effect  of  restoring  him  to 
the  membership  of  the  District  Board  which 
he  lost.  On  this  matter  I  do  not  agree  with 
the  view  taken  by  the  District  Judge  that 

U)  87  lad,  Cas,  363;  '(1925)  A,  I,  R.  (A!,)  1034, 


102 


KESHEORAO  V,  MAROTIRAO. 


[92  I.  C.  1926] 


the  restoration  of  Mekha  Filial  to  the 
membership  of  the  ^Taluk  Board  also 
restores  him  into  the  membership  of  tbe 
District  Board.  I  adhere  to  the  view  I 
have  taken  on  this  matter  in  my  judgment 
in  Davasigamony  v.  Sethuratna  Iyer  (1). 
But  this  does  not  help  the  petitioner  for 
the  respondent  got  22  votes,  and  sthe  peti- 
tioner got  19.  In  the  first  place,  it  is  not 
clear  that  Mekha  Pillai  voted  for  the  res- 
pondent (vide  the  judgment  of  the  District 
Judge  in  para.  8).  But  assuming  that  he 
voted  for  the  respondent  and  that  his  vote 
is  invalid  the  respondent  has  still  got  a 
majority. 

The  next  objection  taken  is  that  there 
are  two  cases  like  the  case  of  Mekha  Pillai 
of  others  who  were  elected  to  the  District 
Board  and  who  have  lost  their  membership 
of  the  District  Board  by  non-attendance  at 
the  Taluk  Board  and  losing  the  member- 
ship of  the  Taluk  Board  and  whose  restora- 
tion to  the  membership  of  the  Taluk  Board 
does  not,  according  to  my  view,  restore  them 
to  the  membership  of  the  District  Board. 
This  objection  was  not  taken  in  the  original 
petition.  It  was  sought  to  be  introduced 
into  the  case  by  an  application  for  amend- 
ment dated  the  let  November,  that  is 
during  the  hearing  of  the  petition.  Though 
I  do  not  hold  that  an  application  for  an 
amendment  of  the  petition  filed  after  the 
expiry  of  the  days  allowed  for  an  objection 
petition  is  never  maintainable  and  I  think 
that  such  an  amendment  petition  may,  in 
the  discretion  of  the  Judge,  .be  allowed, 
even  after  the  expiry  of  that  period,  I  can- 
not say  that  the  discretion  has  been  im- 
properly exercised  by  the  District  Judge 
in  this  case.  If  the  petition  cannot  now  be 
allowed  to  be  amended,  it  is  obvious  that 
the  petition  must  fail. 

It  has  been  contended  by  Mr.  Varadachari 
who  appeared  for  the  respondent  that  s.  35 
of  the  Act  cures  all  the  above  defects  in  the 
election  alleged  by  the  petitioner.  I  adhere 
to  the  view  1  expressed  in  Devasigamony  v. 
Sethuratna  Iyer  (1).  Mr.  Varadachari  has 
called  my  attention  to  s.  57  (3)  and  to  the 
fact  that  the  English  Act  on  which  the 
decision  in  Nell  v.  Longbottom  (2)  was  pass- 
ed, there  is  a  section  (s.  84)  which  shows  that 
an  election  petition  did  not  come  under  the 
scope  of  s.  42  of  the  English  Act  similar  to 
s.  35  of  the  Indian  Act,  and  that  in  the 
Indian  Act  there  is  no  section  similar  to 

(2)  (18C4)  1  Q.  B,  767;  63  L.  J.  Q.  B.  4£C;  10  P.  103; 
70  L.  T,  499, 


s.  84.  He  also  urged  that  it  is  inconvenient 
to  hold  that  the  acts  of  a  Board  the  mem- 
bers of  which  consist  of  persons  like  Mekha 
Pillai  in  this  case  are  invalid.  I  agree  with 
this  view  in  all  acts  of  the  Board  other 
than  election,  s.  35  cures  such  a  defect. 
But  I  do  not  think  that  s.  35  applies  to  an 
election  petition.  I  think  the  rules  regarding 
election  petition  allowing  the  improper 
receipt  or  refusal  of  a  vote  to  be  questioned 
correspond  to  s.  84  of  the  English  Act.  Were 
it  not  so,  the  election  petition  becomes  a  fared. 
I  do  not  think  that  s.  57  (3)  can  help  us  in 
this  matter.  It  relates  to  the  case  of  a 
dispute  being  raised  as  to  the  membership 
of  a  member  himself  and  provides  that  he 
should  be  deemed  a  member  pending  such 
decision. 

But  as  I  have  already  held  the  petition 
must  fail  and  is,  therefore,  dismissed  with 
costs. 

Order  will  follow. 

v.  N.  v.  Petition  dismissed, 

N.  H. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEALED.  475  OP  1924, 

October  15,  1925, 

Present: — Mr.  Halifax,  A,  J.  C. 

KESHEORAO— DEFENDANT— APPELLANT 

versus 
MAROTIRAO— PLAINTIFF— RESPONDENT. 

Partition—Temporary  or  permanent—  Presumption — 
Burden  of  proof— Practice— Evidence  proditced  at  late 
stage,  whether  should  be  admitted. 

A  division  of  property,  an  arrangement  whereby 
property  is  divided,  a  distribution  of  property  are  all 
exactly  the  same  as  a  partition  of  property.  But  a 
partition  may  be  either  partial  or  complete  and  it  may 
be  either  temporary  or  permanent.  In  the  great 
majority  of  partitions  of  common  property  the  paitition 
is  meant  to  be  permanent.  Therefore,  if  nothing  more 
is  known  about  a  partition  except  that  it  has  been 
made,  it  must  be  taken  to  be  a  permanent  partition 
unless  there  is  evidence  to  show  that  it  was  temporary. 
The  length  of  time  for  which  a  partition  has  been 
allowed  to  stand  undisturbed  or  without  re-adjuetment 
is  a  factor  which  may  be  taken  into  consideration  in 
deciding  whether  a  partition  was  temporary  or  per- 
manent, [p.  103,  col.  2;  p.  104,  col.  L] 

It  is  the  duty  of  a  Court  to  welcome  any  evidence 
that  may  be  offered  and  indeed  to  search  for  it,  and  it 
is  wrong  to  exclude  any  evidence  that  is  relevant.  If 
evidence  which  is  relevant  is  tendered  at  a  late  stage 
such  suspicion  or  disbelief  of  it  as  may  be  due  to  its 
production  at  a  late  stage  will  attach  to  it  automatical- 
ly and  if  the  other  party  has  bad  no  opportunity 
because  of  the  lateness  of  the  stage  at  which  the  evi* 


L  0.  1926] 


KESHEORAO  17,  MAROTI  RAO. 


103 


dence  is  produced,  of  producing  any  rebutting  evi- 
dence that  they  might  have  had,  the  disbelief  is  greut- 
ly  increased,  [p.  104,  col  l.J 

Second  appeal  against  the  decree  of  the 
District  Judge,  Wardha,  dated  the  25th 
of  August  1924,  arising  out  of  the  decision 
of  the  First  Sub-Judge,  Second  Class, 
Waradha,  dated  the  12th  February  1924. 

Messrs.  N.G.  Bose,  R.B.,  and  M.B.  Niyogi, 
for  the  Appellant. 

Messrs.  M.  B.  Kinkhede,  R.  B.,  and  R.  R. 
Jaywant,  for  the  Respondent. 

JUDGMENT.—  There  is  no  appeal  and 
there  is  none  in  the  Court  of  the  District 
Judge  in  respect  of  field  No.  57-1,  which 
was  originally  sir  land  but  is  now  apparent- 
ly recorded  as  khudlcasht  because  it  is  held 
by  the  defendant-appellant  Kesheorao  on  a 
lease  for  VJtf;  years  from  a  person  who  has 
no  other  interest  in  the  village  except 
the  proprietary  right  in  that  field.  The 
decision  that  this  land  must  be  exclud- 
ed from  the  lands  liable  to  partition  is 
certainly  correct,  though  the  true  state  of 
affairs  does  not  seem  to  have  been  realized. 

The  total  area  of  sir  and  khudkasht  in 
the  village  is  said  to  be  364*39  acres.  It  is 
admitted  that  107  87  acres  of  this  were 
acquired  by  Kesheorao  in  certain  years 
between  1886  and  1903,  and  it  is  in  issue 
between  the  parties  whether  he  acquired 
them  for  his  own  benefit  or  for  that  of  the 
whole  proprietary  body.  In  regard  to  the 
rest  he  pleaded  that  it  was  divided  among 
the  co-sharers  about  1860,  so  that  each  of 
them  became  separate  owner  of  the  fields 
allotted  to  him.  The  rights  in  the  two 
parcels  of  land  clearly  require  separate 
examination.  Even  after  it  has  been  found 
that  the  division  of  the  lands  in  1860  was 
only  a  temporary  arrangement,  to  say  that 
Kesheorao,  an  eight  anna  proprietor,  is 
properly  entitled  to  only  one  half  of  all  the 
sir  and  khudkasht  in  the  village  is  to  beg 
the  question  as  to  his  acquisition  of  the 
10787  acres  for  himself  or  for  all  the 
proprietors. 

In  regard  to  both  parcels  of  land  it  has 
to  be  remembered  that  the  plaintiffs  can  at 
the  most  claim  that  Kesheorao  shall  hand 
over  to  them  so  much  land  as  will  make 
the  area  of  their  land  equal  to  the  area 
they  ought  to  hold,  that  is  five  sixteenth  of 
the  total.  They  cannot  claim  what  belongs 
to  the  proprietors  of  the  remaining  three 
annas  share  in  the  village,  the  defendants, 
other  than  Kesheorao,  who  are  content  that 

Kesheorao  should  retain  it, 


In  this  connection  it  may  be  mentioned 
that  one  of  those  other  defendants,  holding 
an  one  anna    share  but  no  sir  land  at  all, 
disclaimed  all  interest  in  the  suit,  but  was 
not  discharged  and  was  made  a  respondent 
in    this  and  in  the  lower  Appellate  Court, 
He  did  not  appear  in  the  lower  Appellate 
Court,  but  has  appeared  here,  and  his  costs 
must  be  paid   by  the  appellant,    But  the 
other  defendants,    who    own    a    two  anna 
share  and  do  hold  6  32  acres  of  sir,  were  die- 
charged  in  the  first  Court  before  the  issues 
were  framed.  They  also  have  been  implead- 
ed  as  respondents  in  both  Appellate  Courts, 
and  the  appellant  is  saved  from  having  to 
pay  for  his  carelessness  only  by  the  failure 
of  those  respondents  to   appear  in   either 
Court. 

In  discussing  the  matter  of  the  areas  of 
the  original  home-farm,  apart  from  Kes- 
heorao's  subsequent  acquisitions,  which  are 
proportionate  to  the  shares  of  the  parties 
in  the  village,  it  has  to  be  assumed  that 
the  'whole  of  the  70'80  acres  held  by  the 
plaintiffs  is  exactly  the  part  of  the  original 
home-farm  they  have  always  held,  neither 
more  i  nor  less.  The  truth  of  this  assump- 
tion is  of  course,  extremely.doubtf  ul,  as  they 
also  may  have  made  subsequent  acquisitions. 
The  total  home- farm  in  the  village  is 
364'39  acres,  and  the  area  acquired  by 
Kesheorao  from  tenants  is  107'87  acres. 
That  leaves  236*52  acres.  The  area  in 
proportion  to  the  share  of  the  parties, 
which  may  be  called  their  proper  areas, 
and  the  areas  they  actually  hold  are  as 
follows: — 

Proper  area    Actual  area 
KesheoRao      Ans.  8    128*26  179*40 

The  plaintiffs   Ans,  5      8016  70*80 

The  other  de- 
fendants      Ans.  3      4810  6'32 
It  appears  then  that  of  the  old  home-farm 
Kesheorao    would  have  to  hand  over  not 
more  than  9'36  acres  to  the  plaintiffs;  even 
if  it  has  been  held  in  severalty  but  owned 
in  common  during  all  these  years. 

As  to  the  partition,  the  issue  has  been 
much  complicated  by  the  common  use  of 
terms  in  narrow  senses  without  any  defini- 
tion of  them.  A  division  of  property,  an 
arrangement  whereby  property  is  divided, 
a  distribution  of  property  are  all  exactly 
the  same  as  a  partition  of  property.  But  a 
partition  may  be  either  partial  or  complete 
and  it  may  be  either  temporary  or  perma- 
nent. The  partition  of  the  home- farm  that 
was  certainly  made  in  this  case  about  1860 


lot 


or  not  long  after,  was  partial,  because  it 
was  not  a  partition  of  all  the  property  of  the 
co-owners,  and  the  only  question  is  whether 
it  was  temporary,  that  is  to  say,  left 
the  parties  still  co-owners  of  the  land 
that  was  divided  up  among  them,  with  an 
understanding  that  it  could  he  restored  to 
their  joint  possession  or  divided  up  again 
differently  at  some  time  in  the  future,  or 
was  permanent,  that  is  to  say,  was  not 
subject  to  re-adjustment  and  left  each  co- 
sharer  a  separate  owner  of  the  land  allotted 
to  him. 

Now  in  the  great  majority  of  partitions 
qf  common  property,  the  partition  is  meant 
to  be  permanent.  Therefore,  if  we  know 
nothing  about  a  partition  except  that 
it  has  been  made,  we  must  believe 
that  it  was  a  permanent  partition,  unless 
somebody  can  give  us  good  reason  for 
believing  his  allegation  that  it  was  tempor- 
ary. But  in  this  case  there  is  not  only  no 
reason  for  believing  the  partition  was 
temporary  but  there  are  strong  additional 
reasons  for  believing  it  was  permanent. 
The  strongest  of  them  is  the  length  of  time, 
nearly  seventy  years,  that  it  has  been 
allowed  to  stand  undisturbed  and  without 
re-adjustment,  I  hold,  therefore,  that  all 
the  home-farm  land  held  by  Kesheorao, 
apart  frpm  the  107*87  acres  he  acquired  by 
purchase  frpm  tenants  and  by  lease  from  a 
co-o^ner  of  the  village,  is  his  own  separate 
prpperty  and  the  plaintiffs  are  not  ths 
owners  of  any  share  in  it. 
1  Of  the  107*87  acres,  the  12'21  acres  o$ 
No.  57-1  mentioned  at  the  beginning  of  this 
judgment  has  to  be  left  out  of  consideration. 
Tjh&t  leaves  95*66  acres  comprised  in  six 
fields  all  purchased  by  Kesheorao  from 
absolute  occupancy  tenants,  two  together 
in  18$6,  two  together  in  1893  and  two 
separately  in  1903.  Tlu1  deed  of  sale  of  two 
of  these  fields  was  excluded  f  fpm  evidence 
because  of  its  late  production.  It  has 
a<lw$ys  aeeme.d  tp  me  to  be  the  duty  of  the 
Court  to  welcome,  any-  evidence  tfyajt  may  be 
qffered  and  it^eed  to,  3wch  for  it  a^icl  to 
be  wrong  to  exclude  any  evide^e  that  is 
relevant ;  if  it,  i$  tendered  late  suQh  suspi- 
cion or  disbelief  of  it  as  may  be  due  to  that 
fact  will  attach  to  it  automatically,  and  if 
tfye  other  party  has  had  no  opportunity, 
because  of  that  latenegs  of  producing  of 
rebutting  evidence  they  m^ght  hav^  had, 
tho  disbelief  is  greatply  increased. 

IJut  here  there  w$s  nip  necessity  to  pro- 
duce or  examine  any  of  thesQ  documents. 


RAM  KUMAR  DAS  V,  HARANARAIN  DAS.  [92 1.  C.  1926] 

It  is   proved  otherwise  that    Kesheo  Rao 


purchased  all  these  fiel<ls  not  later  than 
1903  from  the  absolute  occupancy  tenants 
of  them.  We  are  concerned  only  with  that 
fact  and  not  with  any  of  tjie  terms  of  the 
purchases.  Kesheo  Rao  has  undoubtedly 
held  all  these  fields  from  1903  or  earlier 
as  the  separate  owner  of  them.  He  was 
entitled  to  call  himself  the  absolute  oc- 
cupancy tenant  of  them  against  the  pro- 
prietary body  of  the  village,  and  if  he 
bought  them  without  due  notice  to  the 
proprietary  body,  as  he  probably  did,  he 
might  have  been  turned  out  of  them  by  a 
proper  suit  instituted  within  the  time 
allowed.  He  seems  not  to  have  regarded 
himself  or  to  have  been  regarded  by 
the  other  sharers  in  the  village  as  an 
absolute  occupancy  tenant,  but  as  a 
separate  holder  of  khudkasht  land.  I  am 
not  prepared  to  say  which  of  ttese  two  is 
the  more  valuable  right,  but  it  is  beyond 
doubt  that  Kesheorao  was  regarded  by 
himself  and  by  everybody  else  as  the 
separate  owner  of  that  land,  and  having 
held  it  so  for  a  great  deal  more  than 
twelve  years  he  became  the  separate  owner 
of  it,  whether  he  was  so  at  the  beginning 
or  not. 

It  may  be  remarked  that  the  order  of  the 
Revenue  Officer  put  the  matter  correctly 
and  concisely,  probably  because  he  was 
not  confused  by  half  understood  pleas  of 
law.  The  decree  of  the  lower  Appellate 
Court  will  be  set  aside  and  the  plaintiffs1 
suit  will  be  dismissed.  The  plaintiffs  will 
pay  all  the  costs  in  all  three  Courts. 

z    K, 


CALCUTTA  HIGH  COURT. 

APPEAL  PROM  APPELLATE  DECREE  No.  233 

OP  1923. 

July  3,  19?5. 

Present:— Justice  Sir  Rabington  N>wbould, 

KT.,  and  Mr.  JnsiK-o  (Ira  ham 
RAM  KUMAR  DAS— DEPENDANT— 
APPELLANT 

versus 

HARANARAIN  DAS  alias  D1NABANDHI 
DA8  AND  offiBits— Pro  forma  DEFENDANTS- 
RESPONDENTS. 

Evidence  Act  (I  of  1872}t  8.  18,  scope  of^—Amnion 
of   right  rnqde   in   previous  suit,  admimbildty    of — 
4ct  (IX  B.  0.  of  188(0,  j.  9&~Roq,d  sw  return, 


SAM  KUMAR  DAS  V.  HAftNARAIN  DAS. 


£98 1  0.  1928] 

admissibility  of,  in  favour  of  party  filing  return— 
Appeal,  second—Value  of  documentary  evidence,  whe- 
ther can  be  considered 

The  language  of  s.  13  of  the  Evidence  Act  is  very 
wide  and  covers  the  assertion  of  a  right  in  a  previous 
suit  in  which  that  right  was  in  dispute.  It  is  not 
necessary  that  the  right  should  have  been  successfully 
asserted;  the  more  assertion  of  the  right  is  sufficient, 
[p.  105,  col.  2.] 

Section  95  of  the  Cess  Act  is  absolute  in  its  terms 
in  iI-i'Vi  :t  that  a  load  cess  return  shall  not  be 
mlrnHMihV  in  evidence  in  favour  of  the  person  on 
whose  behalf  it  was  filed;  it  is  immaterial  whether  it 
is  sought  to  be  put  in  evidence  directly  to  prove  an 
admission  or  indirectly  for  some  other  purpose, 
[p.  106,  col.  l.J 

A  Court  of  second  appeal  will  deal  with  the  ques- 
tion of  the  admissibihty  in  evidence  of  a  document 
but  not  with  its  evidentiary  value,  [p.  105,  col.  2.] 

Appeal  against  a  decree  of  the  Subordi- 
nate Judge,  Midnapore,  dated  the  7th  of 
September  1922,  reversing  that  of  the 
Munsif,  Fourth  Court,  Tamluk,  dated  the 
27th  of  July  1921. 

Mr.  S.  C.  Maity  and  Babu  A,  Purba 
Charan  Mookerji,  for  the  Appellant. 

Mr.  Mohendra  Nath  Roy  and  Babu  Son- 
tosh  Kumar  Pa£,  for  the  Respondents. 

JUDGMENT.— This  is  an  appeal 
agaipst  the  decree  which  the  plaintiffs  have 
obtained  for  khas  possession  of  the  land  in 
dispute  on  establishment  of  their  niskar 
right  thereto.'  The  only  point  urged  in  this 
appeal  is  that  in  coming  to  a  finding  in 
favour  of  the  plaintiffs- respondents  the 
lower  Appellate  Court  has  relied  on  certain 
documents  which  are  inadmissible  in  evi- 
dence. These  documents  are  Exs.  10,  101, 
11,  13,  14,  4,  2,  8  and  9.  Exhibits  10,  13  and 
14  are  the  decree  plaint  and  solenama  in  a 
particular  suit.  In  this  suit  the  lands  in 
suit  are  described  as  the  niskar  property  of 
Shama  Charan  Das  which  had  been  inherit- 
ed by  his  heirs  who  were  parties  to  that 
suit. 

It  is  contended  that  these  documents  can- 
not be  admissible  as  in  that  suit  there  was 
no  contest  as  to  the  plaintiffs  right  and  it 
c&npot  bet  said  th$t  thia  right  was  asserted 
or  claimed  within  the  meaning  of  s.  13  of 
the  .EJ-videpce  Act.  The  latest  ruling  on 
tjiis  point, i$  the  ca^e  of  Gopi  Siundari  Davi 
v.  Khtrod  Gobinda  Chowdfiury,  (1).  Refrr- 
epce  is  there  made  to  the  decision  of  th,e 
Judicial  Committee  of  the  Privy  Council  in 
Diwomoni  Ch&udhurani  v.  Br&jo  Uofiini 
Gtwudhurani  (2),  wixere  Lord  Lintfley  in.  4e- 
Uveripg  th,eir  Lordship's  judgment  observed 

(i;  82  Ind.  Cas.  99;  28  G.  W.  N.  942;  (1925)  A.  I.  R. 
(Q.)  194, 

(2)  29  C.  187;  29  I.  A.  24;  6  C.  W.  N.  386;  12  M  L. 
J.  83;  4  Bom,  L.  R,  167;  8  Sar,  P,  C,  J.>22$  (P,  0.). 


103 


that  the  words  of  s.  13  of  the  Evidence  Act 
were  very  wide.  In  our  opinion  they  are 
wide  enough  to  cover  the  assertion  of  niskar 
in  the  partition  suit  where  that  right  was  in 
dispute. 

On  behalf  of  the  appellant  great  stress 
is  laid  on  the  fact  that  Mr.  Justice 
Richardson  who  delivered  that  judgment 
referred  to  the  right  of  the  plaintiff  being 
successfully  asserted  in  the  judgment 
which  was  sought  to  be  put  in  evi- 
dence. Section  13  does  not  qualify  the 
word  "asserted"  by  the  epithet  "success- 
fully," There  is  nothing  in  that  section 
which  requires  that  the  right  should  be 
successfully  asserted.  But  giving  a  widd 
interpretation  to  it  the  mere  assertion  is 
sufficient.  We  hold,  therefore,  that  there  is 
no  reason  to  exclude  this  documentary 
evidence  Exs.  10,  13  and  14.  As  regards 
the  other  documents  to  which  objection  has 
been  taken  with  the  exception  of  Ex.  2  the 
same  remarks  apply.  They  are,  in  our 
opinion,  admissible  as  evidence  of  transac- 
tions in  which  the  plaintiffs'  niskar  right 
was  asserted.  In  second  appeal  we  have  to 
deal  only  with  the  question  of  the  admissi- 
bility  in  evidence  of  the  documents  and  not 
their  evidentiary  value.  In  the  case  of  some 
of  them,  for  instance,  Exs.  10,  13  and  14 
and  also  Exs.  8  and  9  the  chitta  and  khatia?i 
their  evidenciary  value  appears  to  be  slight. 
Still  they  are  some  evidence  that  the  plaint- 
iffs were  in  possession  of  the  land  in  dispiite 
claiming  it  as  their  niskar.  It  is  clear  with 
regard  to  Exs.  10  (1)  the  decree  passed  in  a 
damage  suit  in  1845  brought  by  the  plaint- 
iff's predecessor  against  Janaki  Ram  Panda 
that  the  lower  Appellate  Court  was  wrong 
in  describing  Janaki  Ram  Panda  as  the 
predecessor-in-interest  of  defendant  No.  1. 
The  defendant  No.  1  the  purchaser  at  a  sale 
for  arrears  of  revenue  cannot  rightly  be 
described  as  the  p  redecessor-in-interest  of 
the  previous  proprietor.  But  this  does  not 
affect  the  question  of  the  admissibility  of 
this  document,  since  it  is  admitted  not  as  a 
document  inter  partes  but  under  the  pro- 
visions of  s.  13  of  the  Evidence  Act. 

As  regards  Ex.  2  we  hold  that  the  con- 
tention raised  on  behalf  of  the  appellant 
must  prevail.  Exhibit  2  is  a  road  cess 
return  submitted  by  the  plaintiffs.  Sec- 
tion 95  of  the  Cess  Act  IX  B.  C.  of  1880  pro- 
vides that  such  a  return  shall  not-  be  ad- 
missible in  favour  of  the  person  on  whose 
behalf  it  has  been  filed..  The  learned  Sub- 
ordinate Judge  appears  to  have  held  that 


106 


GOVINSA  NADAN  V.  RAMA9AMI  CHETTIAR. 


this  document  was  admissible  because  it 
was  put  in  evidence  not  directly  as  an 
admission  by  the  plaintiffs  but  because  con- 
sidered with  other  evidence  it  proved  an 
implied  admission  by  defendant  No  1  of  the 
plaintiffs1  niskar  title.  But  even  so,  this  docu- 
ment was  put  in  evidence  as  a  document  in 
favour  of  the  plaintiffs,  and  was,  therefore, 
excluded  by  the  provisions  of  s.  95.  That 
section  is  absolute  in  its  terms  in  declaring 
that  a  road  cess  return  shall  not  be  ad- 
missible in  favour  of  the  person  on  whose 
behalf  it  was  filed,  and  it  is  immaterial 
whether  it  was  put  in  evidence  directly  to 
prove  an  admission  zor  indirectly  for  some 
other  purpose.  This  being  so  we  must 
decree  the  appeal  on  this  ground. 

We  set  aside  the  judgment  and  decree  of 
the  lower  Appellate  Court  and  remand  the 
appeal  to  him  for  re-hearing  after  excluding 
from  consideration  the  document  Ex.  2. 
The  costs  will  abide  the  result, 


z,  K. 


Appeal  allowed: 
Case  remanded. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  95  OF  1923. 

October  6,  1925. 

Present:— -Mr.  Justice  Odgers. 

QOV1NDA  NADAN  REPRESENTED 

BY  HIS  AGENT  GOVINDASAMI  VENU 

LIDAYAN— PLAINTIFF — APPELLANT 

versus 

A.  Y.  R.  M.  R.  M.  RAMA8AMI 
CHETTIAR—DEFKNDANT— RESPONDENT. 

Limitation  Act  (IX  of  1908),  Sch.  I,  Art  85— Mutual 
open  and  current  account — Shifting  balance,  effect 
of. 

In  order  that  an  account  may  be  mutual,  open  and 
current  within  the  meaning  of  Art  85  of  Sch.  I  to  the 
Limitation  Act,  there  must  be  transactions  on  each 
side  creating  independent  obligations  on  the  other 
and  not  merely  transactions  which  create  obligations 
on  th«  one  &ide,  those  on  the  other  being  merely  com- 
plete or  partial  discharges  of  such  obligations,  fp.  106. 
col.  2;  p.  107,  col.  1  ] 

Hirada  Basappa  v.  Gadigi  Muddappat  6  M.  H.  0  R. 
142,  relied  on. 

Where  an  account  between  two  persons  resembled 
a  Bank  pass-book  where  deposits  of  monies  were  made 
and  withdrawals  of  monies  took  place  from  time  to 
time  the  balance  being  in  favour  either  of  one  or  other 
as  the  case  might  be: 

Held,  that  the  mere  shifting  of  account  from  one 
side  to  the  other  did  not  constitute  mutual  and  inde- 
pendent obligations,  [p.  107,  col.  1.] 

Second  appeal  against  the  decree  of  the 
District  Court,  East  Tan j  ore  at  Nega- 


[92  I.  0. 1925] 

patam  in  A.  8.  No.  252  of  1921  (A.  8. 
No.  1096  of  1919  of  the  District  Court, 
West  Tanjore)  preferred  against  the  decree 
of  the  Court  of  the  Additional  District 
Munsif,  Tiruvalur,  in  0.  8.  No.  434  of 
1917  (O.  8.  No.  25  of  1917  of  the  Court 
of  the  District  Munsif  of  Tiruvalur), 

Mr.  A.  Balakrishnen,  for  the  Appel- 
lant. 

Mr.  V.Ramaswamy  Iyer,  for  the  Respond- 
ent. 

JUDGMENT.— I  postponed  judgment 
on  the  15th  September  in  order  to  give  the 
appellant's  Vakil  an  opportunity  of  satisfy- 
ing me  that  the  District  Judge  went  into 
the  question  of  the  nature  of  the  accounts 
in  the  case  in  spite  of  its  not  being  taken 
in  the  grounds  of  appeal  to  thg  lower 
Appellate  Court.  The  learned  Vakil  now 
states  that  he  is  unable  to  get  information, 
on  the  point. 

The  suit  is  brought  by  the  plaintiff  for  a 
sum  of  Rs.  795  odd  which  is  said  to  be  due 
to  him  from  the  defendant  a  money-lender. 
The  course  of  business  between  the  parties 
was  apparently  that  the  plaintiff  should 
draw  money  whenever  he  wanted  it  and 
should  also  deposit  money  with  the  defen- 
dant. The  plaintiff  has  not  produced  any 
accounts  of  his  own.  He  relies  on  a  copy 
of  the  defendant's  account,  Ex.  A.  The 
District  Munsif  found  that  the  plaintiff 
had  proved  his  case  as  he  held  that  a  settle- 
ment hnd  taken  place  on  either  the  14th 
or  17th  of  December  1913.  The  District 
Judge,  to  whom  an  appeal  was  taken,  dis- 
credited the  evidence  with  regard  to  this 
settlement  and  that  is  a  finding  of  fact 
by  which  I  am  bound  in  second  appeal. 
But  the  learned  Judge  goes  on  to  con- 
sider whether  the  transaction  is  in  the 
nature  of  a  mutual,  open  and  current  ac- 
count and  would,  therefore,  save  limitation 
if  such  was  the  case  and  the  argument 
before  me  has  been  that  the  account  in 
Ex.  A  is  such  an  account.  Now  in  order 
to  see  what  the  requisites  are  for  such  an 
account,  we  should  look  at  the  case  of 
highest  authority  as  far  as  I  know  in  this 
Court,  i.  e.,  the  judgment  of  Holloway,  J,, 
in  Hiradq,  Basappa  v,  Gadigi  Muddappa  (I). 
In  order  that  an  account  may  be  mutual 
"there  must  be  transactions  on  each  side 
creating  independent  obligations  on  the 
other  and  not  merely  transactions  which 
create  obligations  on  the  one  side,  those  on 

(1)  6  M,  H.  0.  R.  142, 


[92 1.  0. 1926J 

the  other  being  merely  complete  or  partial 
discharges  of  such  obligations "  That 
statement  has  been  repeated  in  many  judg- 
ments ever  since  the  year  1871  and  it  has 
over  and  over  again  been  taken  as  a  cor- 
rect statement  of  the  law.  It  may  be  that 
in  the  account  before  me  the*  balance 
shifted  from  one  side  to  the  other  from 
time  to  time.  See  Skive  Gowda  v.  Fer- 
nandez (2)  and  Kunhikuttiali  v.  Kunhammad 
(3J.  But  the  account,  as  far  as  I  have 
been  able  to  see,  resembles  exactly  a  Bank 
pass-book  where  deposits  of  monies  are 
made  and  withdrawals  of  monies  take 
place  from  time  to  time,  the  balance  being 
in  favour  either  of  the  customer  or  of  the 
Bank  as  the  case  may  be  at  any  given 
moment.  I , therefore,  agree  with  the  learn- 
ed District  Judge  that  there  do  not  appear 
to  be  independent  obligations  on  both 
sides  and  that  a  mere  shifting  of  the  ac- 
count from  one  side  to  the  other  is  not 
enough  to  constitute  mutual  obligations. 

The  second   appeal    must  be    dismissed 
with  costs. 

v.  N.  v. 

Appeal  dismissed. 

(2)8Ind.  Gas.  141';  34  M  513;  8  M    L.  T.  412  (1911) 
M  W   N.I;  21  M.L  .1  391 

(3)  71  Ind.  Gas.  466;  44  M.  L.  J.  184;  17  L.  W.  243; 
(1923;  M,  W  N.  81,  (1923)  A  L  R.  (M.)  278. 


CALCUTTA  HIGH  COURT. 

APPEALS  FROM  APPELLATE  DBOKBBS  Nos.  1940 
AND  1954  OF  1922. 

May  11,  1925. 

Present: — Mr,  Justice  Cuming  and 
Mr.  Justice  Chakravarti. 

IN  No.  1940  OF  1922 
HEM  CHANDRA  SEN  AND  OTHERS— 
PLA  INTIFFS— APPELLANTS 

t ersus 

GIRISH  CHANDRA  8AHA  AND  OTHERS 
— DEFENDANTS — RKSPONDBNTS. 

IN  No.  1954  OF  1922 

ARJUN  DHUPI  AND  OTHERS —DEFENDANTS 
— APPELLANTS 

versus 

HEM  CHANDRA  SEN  AND  OTHERS- 
PLAINTIFFS — RESPONDENTS. 

Bengal  Tenancy  Act  (VIII  of  188,5),  s.  50— Old 
tenancy —Additional  area  on  additional  rent— Pre- 
sumption of  fixity  of  rent,  whether  applicable—  Burden 
of  proof, 

Where  a  tenant  adds  new  area  to  his  old  tenancy 
OR  additional  rent,  ho  is  not  deprived  ot  the  presump* 


HfeM  CHANDRA  SEN  V.  GIRISH  CHANDRA  SAHA. 


167 


tion  arising  under  e.  50  of  the  Bengal  Tenancy  Act  so 
far  as  the  old  tenancy  is  concerned.  The  onus  of  prov- 
ing what  the  old  area  was  is  upon  the  tenant,  [p.  108, 
col.  1  ] 

A  tenant  cannot,  however,  by  adding  new  area  to 
the  old  tenancy,  claim  the  benefit  of  the  presumption 
so  far  as  the  added  area  is  concerned,  [ibid  ] 

Appeals  against  the  decrees  of  the  Special 
Judge,  Tipperah,  dated  the  22nd  April 
1922,  modifying  those  of  the  Assistant 
Settlement  Officer,  Comilla,  dated  the  25th 
September  1920. 

Bab  us  Birendra  Chandra  Das  and  Nri- 
pendra  Chandra  Das,  for  the  Appellants. 

Babu  Jatindra  Mohan  Ghose,  for  the  Re- 
spondents, 

JUDGMENT. 

IN  APPEAL  No.  1940  OF  1922. 

Chakravarti,  J.-— This  is  an  appeal 
by  the  plaintiffs  and  arises  out  of  an  appli- 
cation made  by  the  landlord  under  s.  105 
of  the  Bengal  Tenancy  Act.  The  question 
with  which  we  are  concerned  is  whether 
the  landlords  are  entitled  to  an  enhance* 
ment  of  rent  under  s.  30  (6)  of  the  Bengal 
Tenancy  Act. 

The  defence  of  the  defendants  was  that 
the  tenancy  was  held  at  a  permanent 
fixed  rent ;  and  the  tenants  in  order  to 
establish  their  claim  relied  upon  the  pre- 
sumption under  s.  50  of  the  Bengal  Tenancy 
Act.  The  Assistant  Settlement  Officer  in 
the  Court  of  first  instance  found  that  as 
regards  the  khatians  which  are  now  before 
us  that  is  Khatian  Nos.  17  and  25,  the 
presumption  was  rebutted  because  it  was 
shown  that  additional  land  was  added  to 
the  holding  at  a  time  subsequent  to  the 
Permanent  Settlement.  In  that  view  the 
Trial  Court  held  that  the  tenants  were  not 
entitled  to  the  presumption  under  s.  50  of 
the  Bengal  Tenancy  Act. 

On  appeal  by  the  defendants  the  learned 
Special  Judge  has  held,  reversing  the 
judgment  of  the  First  Court,  that  the  tenants 
were  entitled  to  the  presumption  under  that 
seclion,  The  learned  Judge  found  that  the 
variation  of  the  rents  was  bas$d  on  the  vari- 
ations in  the  area  of  the  holding  and,  there- 
fore, he  held  that  the  presumption  under 
8.  50  applied  to  the  holding  as  it  is  now 
in  possession  of  tenants  with  the  added 
area. 

In  this  second  appeal  by  the  plaintiffs 
it  has  been  contended  by  the  learned 
Vakil  for  the  appellants  that,  upon  the  find- 
ings of  the  learned  Judge,  the  tenants 
were  not  entitled  to  the  presumption 
under  s,  50  of  the  Bengal  Tenancy  Act. 


108 


HEM  CHANDRA  SEN  V.  GIRT8K  CHANDRA  8AHA. 


[«2L  0.1926] 


It  appears  to  us  that  the  contention  of 
the  appellants  ought  to  succeed  only  partial- 
ly. Upon  the  findings  it  appears  that 
there  was  an  old  tenancy  with  a  definite 
rent  which  was  held  for  more  than  20 
year3  at  a  uniform  rent;  but  it  appears 
farther  from  the  findings  that  additional 
rent  was  added  for  additional  area  and  in 
recent  times  the  rent  of  the  old  tenancies 
was  paid  along  with  the  additional  rent 
for  the  added  area.  The  question,  therefore, 
arises  is  this  :  Do  the  tenants  by  holding 
additional  lands  for  additional  rent  and 
paying  the  same  along  with  the  old  rent 
and  the  old  area  lose  the  presumption  as 
regards  the  old  area  and  the  old  rent  also? 
We  think  not.  And  also  we  think  that 
the  tenants  arc  not  entitled  to  the  presump- 
tion for  the  added  area  although  they  are 
entitled  to  the  presumption  for  the  area 
which  they  held  as  was  presumed  before 
the  Permanent  Settlement.  In  a  case  like 
this  thft  onus  of  proving  what  the  old 
area  was  and  what  the  area  is  subse- 
quently added,  is  upon  the  tenants,  and 
if  they  show  what  the  old  rents  were 
then  they  are  entitled  to  the  presump- 
tion under  s.  50  so  far  as  the  old 
tenancy  is  concerned,  because,  by  showing 
that  for  20  years  immediately  before  the 
suit  they  were  holding  a  particular  area 
at  a  particular  rent,  the  presumption  under 
s.  5Q  arises,  But  the  tenants,  it  seems  to 
us,  are  not,  by  adding  a  new  area  to  the 
old  tenancy,  entitled  to  get  the  benefit 
of  the  presumption  so  far  as  the  added 
area  is  concerned— for  the  simple  reason  that 
the  tenants  or  their  predecessors  were  not 
holding  those  lands  from  before  the  Perma- 
nent Settlement.  They  were  added  sub- 
sequently. In  that  view  we  think  that  so 
far  as  Khatians  Nos,  17  and  25  are  concern- 
ed, the  case  must  go  back  to  the  lower  Appel- 
late Court  and  that  Court  will,  if  there  is 
evidence,  find  what  was  the  area  and  the 
rent  of  the  old  tenancy  and  the  area  and 
the  rent  which  were  subsequently  added. 
Bat  so  far  as  the  old  tenancy  is  concerned, 
the  tenants  will  be  entitled  to  a  presump- 
tion as  to  the  fixity  of  rent.  But  eo  far 
as  the  added  area  is  concerned  the  learned 
Special  Judge  will  fix  the  rent  for  that 

area 

In  this  view  this  appeal  succeeds  and  the 
decree  of  the  lower  Appellate  Court  is  varied 
to  the  extent. 

As  regards  Khatian  No.  29,  it  has  been 
admitted  before  us  by  the  learned  Vakil 


that  he  cannot  press  the  point  as  regards 
this  khatian,  because,  there  has  been  no 
proper  representation  of  the  parties* 

The    appeal,   therefore,   so  far    as  this 
khatian  is  concerned  is  dismissed.    As  the 
appeal  succeeds  only  in  part  we    do  not 
make  any  order  as  to  costs  of  this  appeal. 
IN  APPEAL  No.  1954  OP  1922. 

The  defendants  are  the  appellants  and 
this  appeal  arises  out  of  an  application 
made  by  the  plaintiffs-landlords  for 
settlement  of  fair  and  equitable  rent. 
The  Special  Judge  in  Khatians  Nos.  3,  10, 
13,  20,  22,  24,  30,  33,  34,  42,  47,  49  and 
55  allowed  the  claim  of  the  plaintiffs- 
landlords.  Against  the  decree  the  present 
appeal  has  been  preferred  by  the  defend- 
ants. It  appears  that  some  of  the  plaint- 
iffs-respondents died  and  no  application 
was  made  within  three  months  for  substitu- 
tion of  the  heirs.  The  matter  came  up  to 
this  Court  and  it  was  ordered  on  the 
application  of  the  appellants  that  the  appeal 
so  far  as  the  deceased  respondents  were  con- 
cerned abates  and  the  appeal  would  proceed 
against  the  other  respondents  and  the 
appellants  gave  it  up  so  far  as  the  deceas- 
ed respondents  were  concerned.  It  being 
an  appeal  against  a  decree  in  favour  of 
the  plaintiffs  it  appears  to  us  that  the 
appeal  is  incompetent  when  some  of  the 
plaintiffs  are  not  before  the  Court  and 
the  appeal  has  failed  so  far  as  the  deceas- 
ed respondents  are  concerned.  In  that 
view  it  is  obvious  th^t  to  hold  otherwise 
would  lead  to  an  '  .  :  .  position. 
The  deceased  plaintifts  heirs  would  be 
entitled  to  an  enhanced  rent  as  settled  by 
the  Special  Judge  and  if  we  allowed 
this  appeal  the  tenants  would  be  en- 
titled to  hold  the  tenancy  at  a  fixed 
rent  so  far  as  some  of  the  plaintiffs  land- 
lords are  concerned.  In  the  absence  of  some 
of  the  plaintiffs  not  represented  in  the  lower 
Appellate  Court  the  whole  appeal  becomes 
incompetent. 

The  result  is  that  this  appeal  is  dismiss- 
ed with  costs. 

Cuming ,  J.— I  agree. 

N.  n.  Appeal  No.  1940  allowed] 

Appeal  No.  105^  dismissed. 


THABAMAL  PABKAM  iCALAPATHOOfc  V.  URUfPOTlL  AMBU. 


[921.0.1926] 

MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No,  776 

OF  1923. 

September  8,  1925. 

Present: — Mr.  Justice  Jackson. 

THARAMAL  PARKAM  KALPATHOOR 

THULICHAPUTHIATUTH  SANKARAN 

NAIR— PETITIONER 

versus 

URUPPOYIL  AMBU  AND  OTHERS— 
RESPONDENTS. 

Civil  Procedure,  Code  (Act  V  of  1908),  s  lid, 
O.XXItrr.  13,  17 --Execution  application,  defects  in 
-  -  Court,  whether  bound  to  give  time  for  correction— 
Dismissal  of  petition— Revision 

Under  O  XXI,  r,  17,  0  P.  0.,  when  an  execution 
application  is  presented  which,  does  not  fulfil  the  re- 
quirements of  rr.  11  to  14,  the  Court  has  an  option  either 
to  reject  t"  ""  '  or  to  allow  the  defect  to  be 

remedied  to  be  fixed  by  it. 

Where  it  declines  to  adopt  the  latter  course,  it  can- 
not be  held  to  have  refused  jurisdiction  so  as  to  war- 
rant interference  in  revision  under  s.  115,  0.  P.  0. 

Vemuri  Pitchayya  v.  Ankineedu  Bahadur  Zemindar 
Garu,  76  Ind.  Cas.  750,  45  M.  L.  J  6ol,  18  L  W  739; 
33  M  L  T.  125;  (1924)  A.  I.  R.  (M.)  367,  referred  to 

Petition,  under  s.  25  of  Act  IX  of  1887, 
praying  the  High  Court  to  revise  the  order 
of  the  Court  of  the  District  Munsif  of  Payoli, 
dated  the  15th  March  1923,  in  R.  E.  P. 
No.  182  of  1922  in  8.  0.  S.  No.  229  of  1910. 

Mr.  R.  Govinda  Menon,  for  the  Petitioner. 

Mr.  K.  P.  Ramakrishna  Iyer,  for  the  Re- 
spondents. 

JUDGMENT. — Petitioner  seeks  to 
revise  the  order  of  the  District  Munsif  of 
Payoli  in  R.  E.  P.  No.  182  of  1922  in  S.  C. 
8.  No.  229  of  1910. 

Petitioner  obtaiued  a  decree  on  7th  March, 
1910.  On  28th  February,  1922,  he  applied 
for  attachment  promising  to  furnish  a  list 
of  immoveables.  The  application  was  ad- 
journed from  time  to  time  till  July  1922, 
for  the  appointment  of  a  guardian  and 
then  again  from  time  to  time  till  15th 
March,  1923,  when  it  was  finally  dismiss- 
ed, because  the  list  of  immoveables  was 
only  produced  on  5th  April,  1922,  after  the 
expiry  of  12  years  from  7th  March,  1910. 

I  cannot  hold  that  the  order  is  illegal. 
The  Court  has  an  option  under  0.  XXI,  r. 
17,  either  to  reject  the  application  or  to 
allow  the  defect  to  be  remedied  within  a 
time  to  be  fixed  by  it.  Possibly  the  Munsif 
might,  even  on  15th  March,  1923,  have  order- 
ed the  list  of  immoveable  properties  to  be 
produced  on  5th  April,  1922,  which  would 
have  dated  the  petition  as  from  28th 
iFebruary  1922,  and  would  thus  have  saved 


109 


the  bar  of  limitation.  But  he  cannot  be 
said  to  have  refused  jurisdiction  by  declin- 
ing to  pass  this  remedial  order.  He  is 
equally  acting  within  his  discretion  when 
he  finds  that  no  time  was  fixed  for  remedy- 
ing the  defect,  and,  therefore,  the  applica- 
tion must  date  from  the  time  when  it  fully 
conformed  to  0.  XXI,  r.  13,  which  would  be 
April  5.  Tlxe  ruling  reported  in  Vemuri 
Pitchayya  v.  Ankineedu  Bahadur  Zemindar 
Garu  (1),  turns  on  a  converse  case.  There- 
the  District  Munsif  had  exercised  his  dis- 
cretion by  fixing  a  time  for  the  production 
of  the  descriptive  shedule  after  the  expiry 
of  12  years  and  this  Court  declined  to 
interfere.  But,  of  course,  it  was  not  held 
that  the  Munsif  was  bound  to  exercise  his 
discretion  in  that  manner.  If  he  had 
liked  to  adopt  the  alternative  he  could  have 
dismissed  the  application.  Spencer,  J., 
observes: — "I  am,  with  due  respect,  inclin- 
ed to  think  that  the  words  'on  receiving 
an  application  for  the  execution  of  a  decree' 
in  r.  17  were  not  intended  to  raak#  a  party 
suffer  for  the  failure  of  the  Court  establish- 
ment, which  checks  plaints  and  execution 
petitions  on  their  presentation  to  at  once 
notice  all  defects  in  any  application  that 
may  be  received  and  that  these  words  do 
not  preclude  a  Court  from  making  an  order 
allowing  a  defect  to  be  remedied  at  a 
later  stage.''  This  can  hardly  be  taken  as 
putting  the  whole  responsibility  upon  the 
Court.  An  applicant  who  files  an  applica- 
tion not  in  compliance  with  0.  XXI,  r.  13, 
does  so  at  his  own  risk,  and  he  cannot  de- 
mand, as  of  right,  that  it  shall  be  regulariz- 
ed by  the  Court  establishment.  In  the 
present  case,  too,  there  is  no  question  of 
suffering  for  the  failure  of  the  establish- 
ment, because  the  petitioner  knew  all  along 
that  his  application  was  defective,  and  re- 
medied that  defect  on  his  own  initiative. 

This  judgment  has  proceeded  on  the 
assumption  warranted  by  Vemuri  Pitchayya 
v.  Ankineedu  Bahadur  Zemindar  Garu  (1) 
that  a'  Court  retains  its  discretion  to  order 
the  defect  to  be  remedied  after  the  applica- 
tion has  been  admitted  and  registered  but 
before  it  has  been  finally  disposed  of  in  one 
of  the  ways  mentioned  in  O.  XXI,  r.  17  (1). 

As  regards  Asgar  Ali  v.  Troiloka  Nath 
Ghose  (J)  which  the  lower  Court  cites,  it 
may  be  observed  that  the  point  specifically 
referred  to  the  Fnll  Bench  has  now  been 

(1)  76  Ind.    Cas.  750;  45  M.  L,  J.  651;    IS  L.  W,  739; 
33  M.  L.  T.  125;  (1924)  A,  I.  R.  (M.)  367. 

(2)  17  0, 631;  8  Ind,  D*c.  (N.  a,)  960  (F  B,). 


no 


LAXMAN  BHIKAJI  V.  SECRITABT  OF  STATE  FOR  IWDtA, 


[92  1.  0. 


Battled  bycl.  2  of  0.  XXI,  r.  17,  which  is  an 
addition  to  the  old  s.  245.  If  an  applica- 
tion is  defective  by  not  containing  a  de- 
scription of  the  property,  it  is  none-the- 
less  an  application  provided  that  the  Court 
has  permitted  the  defect  to  be  remedied. 
It  also  happened  to  be  ruled  in  the  same 
case  that  such  permission  could  only  be 
given  before  admission  and  r.  irl-!  -fi'ijn 
(pp.  635-636).  Whether  "on  receiving  '  in 
O.  XXL,  r.  17  (1)  requires  such  strict  inter- 
pretation is  the  question  discussed  in 
Vemuri  Pitchayya  v.  Ankineedu,  Bahadur 
Zemindar  Garu  (I).  Of  course  it  would 
make  the  petitioner's  case  considerably 
weaker,  if  it  were  held,  following  Asgar 
Ali  v.  Troilokya  Nath  Ghose  (2),  that  the 
Munsif  had  no  jurisdiction  in  1923  to  order 
the  defect  to  be  remedied,  but  even  allow- 
ing in  the  light  of  Vemuri  Pitchayya  v. 
Ankineedu  Bahadur  Zemindar  Garu  (1) 
that  he  had  jurisdiction  I  do  not  find  that 
he  exercised  it  improperly. 

The  petition  is  dismissed  with  costs. 

v,  N.  Y.  Petition  dismissed. 


BOMBAY  HIGH   COURT. 

FIRST  CIVIL  APPEAL  No.  228  OP  1923. 

Ja-nuary  6, 1925* 

Present  : — Sir  Norman  Macleod,  KT., 
Chief  Justice,  and  Mr.  Justice  Crump. 
BHIKAJI  L  AXMAN  BHIKAJI  AND  ANOTHER 
— PLAINTIFFS — APPELLANTS 

versus 

THE  SECRETARY  OF  STATE  FOR  INDIA 
— DEFENDANT — RESPONDENT. 

Bombay  Hereditary  Offices  Act  (III  of  187 ^  ss  15} 
73 — Bombay  Re-venue  Jurisdiction  Act  (X  of  1876), 
s.  Jf.  (a)-  -Widow,  whether  holder  of  watan — Commuta- 
tion order p,  passed  at  instance  of  widow,  validity  of — 
Order  passed  without  recording  investigation  or  notice 
to  other  members,  validity  of— Suit  for  declaration 
of  invalidity  of  commutation  order,  maintainability 
of. 

The  interest  of  a  widow  in  a  watan  is  to  be  compared 
to  the  interest  of  a  Hindu  widow  in  her  husband's 
estate,  [p.  Ill,  coi.  2.] 

A  widow  holding  an  interest  in  watan  property  for 
the  term  of  her  life  or  until  her  marriage  is  not  a 
"holder"  within  the  meaning  of  that  term  in  s.  15  of 
the  Bombay  Hereditary  Offices  Act,  and  the  Collector 
negotiating  with  such  a  widow  is  not  authorized  to 
pass  a  commutation  order  under  s.  15.  [ibid.] 

A  commutation  order  passed  under  e.  15  of  the 
Bombay  Hereditary  Offices  Act,  without  making  a 
record  of  any  investigation  or  giving  any  opportunity 
to  the  other  members  of  the  watan  family  of  being 
heard  and  without  recording  reasons  is  invalid*  [p,  112. 
sol,  l.j 


A  suit  for  a  declaration  that  a  commutation  order 
passed  under  s.  15  of  the  Bombay  Hereditary  Offices 
Act  is  invalid  on  the  ground  that  it  was  passed  at  the 
instance  of  a  person  who  was  not  a  "holder"  within 
the  meaning  of  s.  15  and  that  the  provisions  of  s.  73 
of  the  Act  had  not  been  complied  with  is  not  barred 
by  the  provisions  of  s.  4  (a)  of  the  Bombay  Revenue 
Jurisdiction  Act.  [ibid] 

First  appeal  from  the  decision  of  the 
District  Judge,  Belgaum,  in  Suit  No.  7  of 
1921. 

Mr.  H,  C.  Coyajee,  (with  him  Mr.  D.  R. 
Manerikar),  for  the  Appellants. 

Mr.  S.  S.  Patkar,  Government  Pleader, 
for  the  Respondents. 

JUDGMENT. 

Macleod,  C.  J.—  The  plaintiffs  sued 
for  a  declaration  that  the  order  of  com- 
mutation of  kulkarniki  service  in  regard  to 
five  villages  in  the  Khanapur  Taluka  of 
the  Balgaum  District  was  ultra  vires  of  the 
Collector  and  was  not  binding  on  them. 

The  defendant,  the  Secretary  of  State, 
claimed  that  the  suit  was  barred  under  paras 
2  and3  of  s.  4  (a),  Bombay  Revenue  Jurisdic- 
tion Act  ;  that  the  order  of  commutation 
of  the  kulkarniki  service  was  not  ultra  vires 
of  the  Collector;  that  Laxmibai  at  whose 
instance  the  order  was  passed  was  in  1915 
the  representative  of  the  persons  beneficial- 
ly interested  in  the  watan  and  was  the 
duly  registered  representative  watandar, 
and  so  was  a  "holder"  as  defined  in  cl.  4  of 
s.  15  of  Bombay  Act  III,  of  1874,  and  that 
the  settlement  made  with  her  was,  therefore, 
legal  and  binding  on  her  successors,  the 
plaintiffs,  under  cl.  3  of  that  section. 

One  Bhikaji  Laxman  was  the  sole  repre- 
sentative kulkarniki  watandar  of  seventeen 
villages,  including  the  five  mentioned  in 
the  plaint,  and  his  widow,  Laxmibai  had 
been  registered  as  the  sole  representative 
watandar  after  Bhikaji's  death.  On  Septem- 
ber 9th  1878  Laxmibai  adopted  plaintiff's 
father,  Laxman,  and  two  days  later  passed 
the  adoption  deed,  Ex.  19.  Laxman's 
natural  father,  Krishnaji  on  the  same  date, 
September  11,  passed  an  agreement  that 
Laxmibai  should  enjoy  the  right  of 
kulkarniki  service  in  the  five  plaint  villages 
for  the  term  of  her  natural  life  for  mainte- 
nance. 

Thereafter  disputes  arose  between  Laxmi* 
bai  arid  Laxman  which  resulted  in  a  suit 
being  field,  No.  10  of  1*96,  in  which  Lax-! 
man  got  a  decree  that  his  adoption  was 
valid  but  Laxmibai's  rights  under  the 
agreement  were  preserved.  Laxman's  name 
was  then  entered  in  the  register  as  watandaf 


[92  L  0. 1926] 

for  twelve  out  of  the  seventeen  village8,  but 
Laxmibai's  name  was  retained  for  the  five 
plaint  villages,  In  1913  Laxnian  died,  leav- 
ing a  widow,  Sitabai,  and  two  minor  eons, 
the  present  plaintiff's.  On  January  24, 
1915,  Laxniibai  applied  to  the  Collector  to 
commute  the  right  of  kulkarniki  service 
with  respect  to  the  plaint  villages.  On 
that  application  the  commutation  order  was 
passed  by  the  Collector.  Laxmibai  died  on 
November  25,  1917,  and  thereafter  Sita- 
bai as  plaintiffs'  guardian  asked  the  As- 
sistant Collector  to  cancel  the  commuta- 
tion order.  This  was  refused,  and  the 
refusal  was  confirmed  by  an  order  of  the 
Commissioner,  and  also  by  Government. 
Sitabai  then  gave  notice  that  she  would 
file  a  suit.  Eventually  the  present  suit  was 
filed  on  September  16,  1921. 

The  District  Judge  has  dismissed  the 
plaintiffs'  suit  on  the  ground  that  it  was 
barred  by  s.  4  (a)  of  the  Bombay  Revenue 
Jurisdiction  Act.  Assuming  that  it  is  a  suit 
to  obtain  a  declaration  that  the  order  of  the 
Collector  was  ultra  vires,  and,  therefore, 
null  and  void  and  not  binding  on  the  plaint- 
iffs, the  question  is  whether  the  plaintiffs 
are  not  entitled  to  prove  certain  facts  which 
would  justify  the  Court  in  granting  them 
the  declaration  asked  for  in  spite  of  the 
provisions  of  s.  4  (a)  of  the  Bombay  Revenue 
Jurisdiction  Act. 

In  Maganchand  v.  Vithalrao  (1)  the  Court 
found  that  the  Assistant  Collector's  order, 
purporting  to  be  made  under  s.  11  of  the 
Hereditary  Offices  Act,  was  unauthorized, 
and,  therefore,  held  that  that  order  was  no 
bar  to  the  maintenance  of  the  plaintiff's  suit. 
Relying  on  that  decision,  two  points  have 
been  taken  by  the  appellants'  Counsel  before 
us : — (1)  that  Laxmibai  was  not  the  "holder" 
of  the  watan  within  the  meaning  of  that 
term  in  s.  15  of  Bombay  Act  III  of  1874  ; 
and  (2)  that  the  provisions  of  s.  73  of  the 
Act  had  not  been  complied  with,  and  that, 
therefore,  the  order  passed  by  the  Collector 
directing  commutation  of  the  watan  was 
not  a  proper  order,  so  that  the  provisions 
of  s.  4  (a)  of  the  Revenue  Jurisdiction  Act 
did  £not  apply.  It  does  not  appear  that 
when  Act  III  of  1874  was  passed,  it  was 
contemplated  that  the  widow  of  a  watendar 
could  succeed  to  him  as  watandar.  "Wat- 
andar"  according  to  s.  4  of  that  Act, 
means  a  person  having  an  hereditary  in- 
terest in  a  watan  It  includes  a  person  hold- 

(1)  17  lad,  Cas.  H8;  37  B,  37;  14  Bom,  L,  R.  703. 


LAXMAN  BHIKAJI  V.  SECRETARY  OF  STATE  FOR  INDIA, 


in 


ing  watan  property  acquired  by  him  before 
the  introduction  of  the  British  Government 
into  the  locality  of  the  watan,  or  legally  ac- 
quired subsequent  to  such  introduction, 
and  a  person  holding  such  property  from 
him  by  inheritance.  It  includes  a  person 
adopted'by  an  owner  of  a  watan  or  part  of 
a  watan,  subject  to  the  conditions  specified 
in  ss.  33  to  35.  "Representative  watandar" 
means  a  watandar  registered  by  the  Collector 
under  s.  25  as  having  a  right  to  perfoim 
the  duties  of  an  hereditary  office.  Although 
Laxmibai  was  registered  under  s.  25  as 
representative  watandar,  it  does  not  follow 
that  she  was  a  watandar  within  the  mean- 
ing of  that  term  in  s.  4,  which  includes 
for  the  purposes  of  the  section  any  sole 
owner  or  the  whole  number  of  joint  owners 
or  any  person  dealt  with  as  representative 
of  the  person  beneficially  interested  or 
entered  as  such  in  the  Government  record 
at  the  time  of  the  settlement,  and  it  does 
not  follow  that  she  was  a  "holder"  within  the 
meaning  of  that  word  in  s.  15  of  the  Act. 
By  s.  2  of  Bombay  Act  V  of  18b6  "Every 
f emal  member  of  a  watan  family  other  than 
the  widow,  mother  or  paternal  grandmother 
of  the  last  male  owner,  and  every  person 
claiming  through  a  female,  shall  be  postpon- 
ed in  the  order  of  succession  to  any  watan,  or 
part  thereof,  or  interest  therein,  devolving 
by  inheritance  after  the  date  when  this  Act 
comes  into  force  to  every  male  member  of 
the  family  qualified  to  inherit  such  watan, 
or  part  thereof,  or  interest  therein.  The 
interest  of  a  widow,  mother  or  paternal 
grandmother,  in  any  wata?i  or  part  thereof, 
shall  be  for  the  term  of  her  life  or  until  her 
marriage  only.'1  Therefore,  the  interest  of 
the  widow  in  a  watan  is  to  be  compared  to 
the  interest  of  a  Hindu  widow  in  her  hus- 
band's estate.  I  doubt  whether  it  was  ever 
intended  that  the  Government  should  be 
able  to  treat  the  widow  as  a  watandar  for  the 
purposes  of  - '  l-:  '  :  .:  the  commutation 
of  the  watan  service.  In  my  opinion  a  widow 
holding  an  interest  in  watan  property  for 
the  term  of  her  life  or  until  her  marriage 
is  not  a  "holder11  within  the  meaning  of 
that  term  in  s.  15  of  Act  III  of  1874. 

It  would  follow,  therefore,  that  the  Col* 
lector  negotiating  with  a  person  who  was 
not  a  holder  of  the  watan  was  not  authoris- 
ed to  pass  a  commutation  order  under  s, 
15  of  the  Act  and  the  decision  in  Maganch- 
and v.  Vithalrav  Cl)  is  applicable  to  this 
suit. 

A  further  objection  arises  from  the  fact 


112 


KHODAY  (UNGAfcHAfc  SAH  V.  SWAMINAfcHA  MtTDALtAfc. 


that  the  Collector  had  not  complied  with 
the  provisions  of  s.  73  of  the  Act.  That 
section  is  imperative  and  enacts  that  "No 
order  under  Partlll.  .directing  commutation 

of  a  watan sha.Ube  passed,  unless  after 

an  investigation  recorded  in  writing  and  a 
proper  opportunity  afforded  for  the.hearing 
of  claims  and  the  production   of  evidence. 
In  each  such  investigation... the  Collector  or 
other  officer  shall  record  his  decision  with 
the  reasons  therefor  in  his  own    handwrit- 
ing/'   It  is  admitted  that  there  is  no  record 
of  any    investigation  having   been    made, 
or  that  any  opportunity  had  been  given  to 
the  other   members  of  the     watan  family 
of  being  heard,  or  that    any  reasons  were 
recorded  by  the  Collector  for  his  decision. 
The  learned  Judge  considered   that  as  the 
claimants  did  not  take  this  point  in    the 
appeals  to  the  Revenue  Authorities,  and  as  it 
was  not  set  out  specifically  in  the  plaint,  he 
was  entitled  to   consider  that  the  Collector 
had  duly  complied    with  the  provisions  of 
s.  73.  Although  it  may    be  said  that   the 
plaintiffs  did  not    specifically  rely  upon  this 
fact  in  asking  the  Court  to  hold  that  the  order 
was  ultra  vires,  still  in  para.  5  of  the  plaint 
it  is  stated  that  the  Collector  made  a  settle- 
ment o!  commutation  some    time  in  1915 
without  giving  notice  to  the  minor  plaintiffs 
or  their  guardian,    so  that    the  question 
whether  the  Collector  had  complied  with 
the  provisions  of  s.  73  was  in  issue. 

I  think,  therefore,  that  as  the  provisions 
of  s.  73  had  not  been  complied  with,  any 
order  of  commutation  passed  by  the  Collector 
would  not  be  a  valid  order,  so  that  on  this 
ground  also  the  suit  to  set  it  aside  will  not 
be  barred  under  s.  4  (a)  of  the  Revenue 
Jurisdiction  Act.  In  my  opinion,  therefore, 
the  plaintiffs  are  entitled  to  succeed,  and 
the  appeal  should  be  allowed  and  the 
declaration  which  the  plaintiffs  asked  for 
decreed  with  costs  in  both  Courts. 

Crump,  J.—I  agree. 

z  Ki  Appeal  allowed. 


MADRAS  HIGH  COURT. 

CIVIL  SUIT  No.  757  OF  1922. 

February  17,  1925. 

Present :— Mr.  Justice  Srinivasa  lyengar. 

KHODAY  GANGADARA  SAH- 

PLAINTIFF 

versus 
A.  8WAMINADHA  MUDALI  AND  OTHEIS 

— DBFBNDANTS. 
Act  (IX  of  1$?2)9  3. 23—Abkari  license— 


[92 1.  0. 1926] 

Prohibition  to  transfer  and  to  sub-let — Partnership  by 
licensee,  whether  forbidden — Foreign  law — Law  of 
Mysore  State — Question  of  fact, 

What  a  foreign  law  is  on  a  particular  point,  is  a 
question  of  fact  and  has  to  be  proved  by  the  party 
setting  it  up.  [p.  113,  col.  2.] 

Where  by  the  terms  of  an  Abkari  license,  the  sale 
transfer  or  sub-lease  of  the  right  is  forbidden,  the 
mere  fact  that  the  licensee  enters  into  partnership, 
ivith  others  in  respect  of  profits  or  losses  of  the  busi- 
ness for  the  carrying  on  of  which  he  had  obtained  the 
license  does  not  necessarily  involve  a  transfer  of  the 
license  right  and  is  not  illegal  or  forbidden  by  law. 
[p.  116,  col.  2;  p  117,  col.  1] 

Natla  Bapiraju,  v.  Puran  Achutha  Rajajee,  5 
Ind  Gas.  450,  20  M.  L  J.  337;  (1910)  M  W.  N  549;  7 
M.  L,  T  176,  Karsan  Sadashiv  Patil  v.  Gatlu  Shiva ji 
Pat 1 1, 11)  Ind  Gas.  442;  37  B.  320;  15  Bom.  L.  R.  227  and 
Ghampsey  Dossa  v.  Gordhandas  Kessow}i,  40  Ind.  Gas. 
805,  19  Bom.  L.  K.  381,  followed. 

Marndamuthu  Pillai  v.  Rangasami  Mooppan,  24  M. 
401,  referred  to. 

Ganapathi  Brahmayya  v.  Kurella  Ramiah,  54  Ind. 
Cas  45,  43  M.  141;  10  L.  W.  476,  38  M.  L..  J.  123, 
doubted. 

Under  the  Law  of  Mysore  such  a  partnership  as  the 
above  is  not  unlawful,  [p.  114,  col.  2.] 

Mahomed  Ghouse  Sab  v.  Thimma  Setti,  1  Mysore  L. 
J,  90,  followed. 

When  the  terms  of  a  contract  are  reduced  to  writing 
and  the  question  is  whether  the  contract  is  illegal  by 
reason  of  its  seeking  to  do  what  is  forbidden  by  law 
and  the  contention  is  that  the  agreement  operates  as  a 
transfer,  such  a  transfer  should  not  merely  be  pre- 
sumed but  must  •  :  -.  ~.  ument  if  not  in 
terms  at  least  as  .  >•  •  ••  [p.  116,  col  1  ] 

Mr.  jK".  Krishnaswami  lyengar ;  for  the 
Plaintiff. 

Messrs.  AT.  Rajagopalan  and  T.  S.  Raja- 
gopala  Iyer,  for  the  Defendants. 

JUDGMENT.— The  only  point  that 
arises  for  determination  in  this  suit  is  quite 
simple  and  though  not  frequently  arising 
is  of  considerable  importance.  The  plaint- 
iff's suit  is  for  the  taking  of  the  accounts 
of  a  partnership  between  himself  and  the 
three  defendants.  That  a  partnership  agree- 
ment was  made  between  these  parties  it  is 
not  disputed.  The  terms  of  the  partner- 
ship have  been  reduced  to  writing  and  are 
to  be  found  in  the  admitted  copy  filed  as 
Ex.  A.  Defendants  Nos.  2  and  3  have  not 
contested  the  claim  of  the  plaintiff  and  are 
apparently  themselves  anxious  that  the  ac- 
counts of  the  partnership  should  be  taken 
and  the  profits  or  losses  ascertained  and  dis- 
tributed. 

The  cpntest  in  the  case  which  raises  the 
only  point  for  determination  has  been  put 
up  only  by  the  first  defendant  and  has 
reference  merely  to  the  validity  of  the  con- 
tract sought  to  be  enforced.  The  point  as  put 
by  the  learned  Counsel  for  the  first  defend- 
ant is  this.  The  partnership  contract  was 
made  in  the  Mysore  State  within  the  terri- 


I.  0.  1926J 


KHODAt  GANCADARA  SAH  V,  S^AMINADHA  MVDALI. 


113 


lories  of  His  Highness  the  Maharaja  and 
had  reference  to  a  business  in  arrack  carried 
on  by  the  plaintiff  under  a  license  obtained 
by  him  from  the  Mysore  Government. 
Under  the  terms  of  the  license  granted  to 
the  plaintiff,  he  was  not  entitled  without 
the  previous  permission  of  the  Deputy 
Commissioner  to  do  what  he  purported  to 
do,  namely,  take  into  his  business  as  part- 
ners the  defendants  Nos.  1,  2  and  3.  No 
such  permission  was  obtained  by  the  plaint- 
iff, and,  therefore,  his  act  of  entering  into 
the  partnership  agreement  was  an  act 
forbidden  by  the  law  and,  therefore,  void 
and,  therefore,  unenforceable.  If  this  conten- 
tion should  be  upheld,  it  follows  that  the 
plaintiff  s?suit  must  fail.  And,  on  the  other 
hand,  if  this  contention  should  fail,  the 
plaintiff  would  be  entitled  to  a  preliminary 
decree  for  the  taking  of  the  accounts  of 
the  partnership  and  the  matter  will  have  to 
be  referred  to  the  Official  Referee  for  the 
taking  of  the  usual  accounts 

To  begin  with,  I  regret  to  state  that 
neither  the  learned  Counsel  for  the  first  de- 
fendant nor  the  learned  Vakil  for  the  plaint- 
iff seemed  to  have  paid  any  consideration 
to  an  important  aspect  in  this  case, 
namely,  that  whereas  the  contract  was  made 
and  was  apparently  intended  to  be  perform- 
ed entirely  within  the  Mysore  State,  this 
suit  has  been  instituted  in  this  Court.  And 
in  fact  both  sides  argued  the  case  before 
me  as  if  there  were  no  such  complication 
and  it  was  a  simple  case  of  the  contract 
being  or  not  being  illegal ,,-  •  :!'•.:  to  the 
Law  of  the  Mysore  State.  Tne  Law  of  the 
State,  however,  it  was  recognised,  had  as 
being  the  Law  of  a  Foreign  State  to  be  proved 
as  a  matter  of  fact  by  the  expert  witness  as 
Advocate  at  Banglore  who  has  been  called 
for  the  purpose.  The  question,  therefore, 
has  not  been  properly  argued  before  me  on 
the  footing  of  a  contract  sought  to  be 
enforced  in  a  British  Court  but  made  and 
intended  to  be  performed  in  a  Foreign 
State  and  that  a  protected  State  under  the 
protection  of  the  British  Government  and 
subject  to  its  suzerainty.  The  first  ques- 
tion that  has  to  be  determined  in  such  cases 
is  :  What  is  the  law  applicable  to  the  par- 
ticular contract  in  question  ?  ;  that  is  to 
say,  by  the  application  of  which  law  should 
it  be  determined  whether  the  contract  in 
question  is  void  for  illegality  as  urged. 
Fortunately  there  is  no  serious  difficulty  in 
this  case  with  regard  to  the  law  applicable, 
"because  whether  we  take  the  law  applic- 

8 


able  generally  in  the  first  instance  as  the 
law  by  which  the  parties  intended  that  the 
contract  should  be  governed  or  as  the  law 
of  the  place  where  the  contract  was  made  or 
as  the  law  of  the  place  where  the  contract 
was  intended  to  be  performed,  it  is  in  every 
case  the  same  law,  the  Law  of  the  Mysore 
State.  No  evidence  has  been  adduced  be- 
fore me  and  110  argument  addressed  to  show 
that  the  intention  of  the  parties  was  that 
the  contract  should  be  governed  by  any 
law  other  than  the  Law  of  the  Mysore  vState. 
We  may  also  presume  that  as  the  contract 
was  apparently  intended  to  be  performed 
in  its  entirety  within  the  Mysore  State,  the 
parties  intended  that  the  contract  should  be 
governed  by  the  law  of  that  very  State. 
This  being  settled,  the  questions  that  next 
arise  for  consideration  aie  (a)  whether  ac- 
cording to  the  Law  of  the  Mysore  State  this 
contract  of  partnership  was  forbidden  ,  (6) 
whether  if  so  forbidden,  the  provision  of 
law  forbidding  was  only  a  iiscal  or  taxing 
enactment  or  a,  provision  of  law  based  on 
the  public  policy  of  only  a  particular  State 
or  whether  the  prohibition  is  founded  on 
natural  justice  or  some  moral  principle 
which,  if  it  is  not,  ought  to  be  recognised 
in  international  jurisprudence. 

As  regards  the  first  question  whether 
under  the  law  of  the  Mysore  State  the  suit 
contract  of  partnership  was  illegal  and  void, 
it  must  be  observed,  to  begin  with,  that  the 
question  "What  a  foreign  law  is  on  a  par- 
ticular point"  is  a  question  of  fact  and  has 
to  be  proved  by  the  parties  setting  it  up.  No 
evidence  has  been  adduced  before  me  as  to 
what  the  law  of  contracts  is  with  regard  to 
the  illegality  and  unonforceability  of  con- 
tracts which  are  entered  into  in  violation  of 
rules  of  law  or  against  public  policy.  I 
have  reason  to  believe  that  the  law  of  con- 
tracts in  that  State  is  the  same  as  the  Indian 
Contract  Act.  But  this  was,  however,  bound 
to  be  established  and  not  to  be  left  merely 
to  inference.  The  first  defendant  on  whom 
the  burden  of  proof  lay  to  establish  satis- 
factorily all  matters  necessary  for  enabling 
the  Court  to  come  to  the  conclusion  regard- 
ing the  illegality  of  the  contract  did  not  give 
any  evidence  with  regard  to  it.  1  may, 
however,  observe  in  passing  that  from  Ex. 
Ill  it  does  appear  as  if  the  Indian  Contract 
Act  has  been  bodily  adopted  by  the  Mysore 
State.  But  while  it  is  true  that  most  of  the 
Indian  Statutory  Law  has  been  adopted  in 
the  Mysore  State,  it  also  appears  that  in  some 
cases  changes  have  been  made  in  the  enact* 


kHODAY  GANOADARA  SAH  V.  SWAMlNADHA 


[92  I.  0. 1926] 


ments  so  adopted,  and  I  am,  therefore,  not 
in  a  position,  in  the  absence  of  satisfactory 
evidence,  on  the  point  to  say  what  the  Law 
of  the  Mysore  State  is  with  regard  to  the 
illegality  of  contracts. 

In  these  circumstances,  all  that  lean  do 
is  to  proceed  on  the  assumption  that  as 
indicated  by  Ex.  Ill,  the  Contract  Act  in 
force  in  the  Mysore  State  is  the  same  as  the 
Indian  Contract  Act.  Section  23  of  that 
Act  provides  amongst  other  things  that  the 
consideration  or  object  of  an  agreement  is 
lawful  unless  it  is  forbidden  by  law  or  is  of 
such  a  nature  that,  if  permitted  it  would 
defeat  the  provisions  of  any  law  or  the 
Court  regards  it  as  immoral  or  opposed  to 
public  policy.  It  further  provides  that  every 
agreement  of  which  the  object  or  considera- 
tion is  unlawful  is  void. 

The  question  then  is  whether  the  part- 
nership agreement  is  one  of  which  the  con- 
sideiation  or  object  is  unlawful  within 
the  meaning  of  s.  23  of  the  Contract  Act. 
This  would  depend  obviously  on  the  terms 
and  conditions  of  the  licenses  granted  to 
and  obtained  by  the  plaintiff.  But  neither 
he  nor  the  first  defendant  has  produced  the 
original  license  or  even  a  copy.  The  Court 
has  virtually  been  asked  by  both  parties  to 
assume  that  the  terms  and  conditions  of  the 
licenses  were  in  the  common  form  as  appear- 
ing in  Kx.  I,  (6).  Clause  16  of  the  general 
conditions  of  retail  vend  licenses  is  as 
follows : — 

"No  privilege  of  supply  or  vend  shall  be 
sold  transferred  or  sub-rented  without  the 
Deputy  Commissioner's  previous  permission 
which  will  only  be  given  if  the  applicant 
is  prepared  to  forfeit  hia  deposit  already 
made  except  in  cases  where  the  Deputy 
Commissioner  sees  reason  not  to  enforce  the 
penalty,  Nor,  if  the  Deputy  Commissioner  so 
orders  shall  any  agent  be  appointed  for  the 
management  of  any  such  privilege  without 
his  previous  approval". 

,  On  behalf  of  the  first  defendant,  my 
attention  has  been  drawn  to  a  case  decided 
by  the  Mysore  High  Court  and  reported  as 
Mahomed  Ghouse  Sab  v.  Thimmi  Setti  (1), 
proved  by  the  expert  witness  called  for 
the  first  defendant  and  marked  as  Ex.  JII 
in  the  case.  That  case,  however,  refers  only 
to  a  case  of  sub-letting  actually  covered  by 
the  terms  of  cl.  16  of  the  conditions. 
Generally  speaking,  it  cannot  possibly  be 
contended  that  the  mere  fact  that  a  licensee 

(I)  I  Mysore  L,  J,  W, 


enters  into  a  partnership  with  others  or 
another  in  respect  of  profits  or  losses  of 
the  business  for  the  carrying  on  of  which  he 
has  obtained  a  license  necessarily  involves 
either  a  sale,  transfer  or  sub-letting 
of  the  license.  There  may,  no  doubt,  be 
partnership  agreements  which  involve  or 
include  a  transfer  of  the  interest  in  the 
license  itself.  There  is,  therefore,  no  war- 
rant for  supposing  that  every  partneiship 
agreement  must  necessarily  violate  such  a 
condition  as  set  out  in  that  clause. 

Mr.  N.  Narasimha  lyengar,  Advocate  at 
Bangalore,  has  alsoPreferred  in  the  course  of 
cross-examination  to  a  case  reported  in  the 
9th  Vol.of  the  Mysore  Chief  Courts  Reports 
page  316,  where  it  washeld  in  that  State  that 
a  partnership  entered  into  by  a  licensee  in 
such  circumstances  was  not  illegal  and  he 
also  told  me  that  that  decision  is  regarded 
as  good  law  up-to-date  and  has  not  been 
overruled.  The  partnership  agi cement  iu 
this  case  Ex.  A  does  not  contain  any  words 
of  sale,  transfer  c  ,•  -/•'•••:  No  doubt 
in  terms,  as  also  •  •  :  -•  : ;,;  -  the  result  of 
a  partnership  agreement,  the  partners  are 
constituted  agents  or  managers  of  the  con- 
cern. But  the  last  sentence  in  cl.  16  of  the 
general  conditions  indicates  that  if  it  was 
intended  to  prevent  any  agent  being  ap- 
pointed for  the  management  of  any  such 
privilege  without  the  previous  permission 
of  the  Deputy  Commissioner,  a  special 
order  of  the  Deputy  Commissioner  should 
be  made  ;  that  is  to  say,  in  other  words, 
generally  speaking  the  appointment  of  a 
manager  for  the  management  of  the  privi- 
lege may  be  made  without  any  previous 
permission  and  if  the  Government  should 
deem  fit  to  prevent  any  such  thing  being 
done,  a  special  condition  or  order  is  re- 
quired to  be  made  by  the  Deputy  Commis- 
sioner. No  such  special  order  or  con- 
dition has  been  proved  in  this  case.  The 
effect  of  a  partnership  agreement  is  only 
to  constitute  the  partners  the  agents  of  each 
other,  and  it,  therefore,  follows  that  the 
terms  of  cl.  16  far  from  forbidding  the 
appointment  of  such  agents  for  manage- 
ment impliedly  allows  such  appointments 
except  in  cases  where  it  is  specially  forbid- 
den. Having  regard,  therefore,  to  the  terms 
of  cl.  16  and  also  the  judgment  of  the 
Chief  Court  already  referred  to,  I  cannot 
but  hold  that  according  to  the  Law  of  the 
Mysore  State,  as  recognised  and  acted  upon 
by  the  subjects  of  that  State,  a  partnership 
agreement  with  reference  to  a  license  c^ 


I.  0.  1926] 


fcHObAY  GANGADARA  SAH  V.  8WAM1NADHA  MFi)ALf. 


115 


the  kind  in  question  is  not  an  agreement 
the  consideration  or  object  of  which  is 
unlawful.  In  this  view  which  I  have  arriv- 
ed at  with  regard  to  the  question  in  issue, 
I  am,  therefore,  bound  to  hold  that  the  suit 
contract  was  not  unlawful  or  void.  This 
would  be  sufficient  for  the  purpose  of  dis- 
posing of  the  issue.  But  the  learned  Coun- 
sel for  the  first  defendant  has  referred  me 
to  various  judgments  of  the  High  Courts 
in  India  for  the  purpose  of  showing  that 
under  clauses  similarly  worded  in  Abkari 
licenses  issued  by  the  British  Government, 
the  Courts  have  held  that  a  partnership 
agreement  is  an  agreement  forbidden  by 
law  and,  therefore,  unlawful.  It  seems, 
however,  unnecessary  to  refer  to  the  decisions 
of  the  Birtish  Indian  Courts  in  the  matter. 
If  there  is  a  particular  statutory  enactment 
or  a  provision  or  rule  having  the  force  of 
law  in  a  particular  State  and  the  highest 
Court  in  that  State  has  decided  that  having 
regard  to  the  terms  of  such  enactment  or 
rule,  a  partnership  agreement  in  those 
circumstances  is  not  illegal,  I  cannot  hold 
that  such  an  agreement  is  illegal  because 
the  Birtish  Indian  Courts  have  held  them 
to  be  illegal  in  very  similar  circumstances. 

In  my  view,  therefore,  any  detailed  ex- 
amination of  the  decisions  of  the  British 
High  Court  in  India  is  unnecessary.  1  may, 
however,  briefly  refer  to  them  because 
after  a  careful  examination  of  those  cases, 
I  have  come  to  the  conclusion  that  even  on 
the  principles  decided  in  those  cases  the 
partnership  agreement  in  this  case  could 
not  be  held  to  have  been  unlawful. 

The  case  of  Mamdamuthu Pillai  v.  Ranga- 
sami  Moopan  (2),  was  one  of  the  cases 
referred  to  and  relied  upon  for  the  first 
defendant.  The  decision  in  that  case  pro- 
ceeded upon  a  clause  which  is  entirely 
different  in  its  terms  and  scope  from  the 
clause  in  the  present  case,  There  are,  no 
doubt,  observations  in  the  judgment  of  the 
learned  Judges  in  that  case  regarding  the 
principle  underlying  the  provisions  of  the 
Abkari  Act  and  also  with  regard  to  the 
partnership  agreements  entered  into  by  or 
with  the  licensee  being  illegal.  Those  ob- 
servations were  not  necessary  for  the 
decision  of  the  case  and  were  merely  obiter 
dicta.  With  all  respect,  therefore,  to  the 
learned  Judges  that  decided  that  case, 
I  cannot  regard  it  as  a  binding  decision 
more  especially  when  what  I  have  to  con- 

(2)  24  M,  401, 


sider  is  not  a  British  Indian  license  but  a 
license  issued  by  the  Mysore  State,  which 
in  some  important  respects  materially  differs 
from  the  terms  that  the  learned  Judges 
were  considering.  Further  1  may  also  in 
this  connection  observe  that  the  learned 
Judges  who  came  to  the  conclusion  in  that 
case  that  the  rules  under  the  Abkari  Act 
were  not  merely  for  the  protection  of  the 
revenue  but  also  to  regulate  liquor  traffic 
in  the  interests  of  the  public  were  not  con- 
fronted in  the  license  with  any  such  condi- 
tion as  that  the  previous  permission  by  the 
Deputy  Commissioner  for  the  sale,  transfer 
or  sub-renting  of  the  privilege  of  supply  or 
vend  will  only  be  given  if  the  applicant 
is  prepared  to  forfeit  his  deposit  already 
made  except  in  cases  where  the  Deputy 
Commissioner  sees  reason  not  to  enforce 
the  penalty.  Further  in  the  case  of  the 
license  the  learned  Judges  were  consider- 
ing, there  do  not  appear  to  have  been  any 
such  clause  as  the  following  : — 

"  Nor,  if  the  Deputy  Commissioner  so 
orders  shall  any  agent  be  appointed  for  the 
management  of  any  such  privilege  without 
his  previous  approval11. 

The  case  olNalan  Padmanabhan  v.  Badri 
Nadk  Sarda  (3)  was  under  the  Opium  Act 
and  proceeded  on  the  narrow  ground  that 
the  terms  of  the  Act  prescribed  that  no  one 
shall  sell  opium  except  as  permitted  by  the 
Act  and  were  different  from  the  correspond- 
ing provisions  in  the  Abkari  Act.  Further  the 
learned  Judges  also  relied  for  their  decision 
on  the  terms  of  the  partnership  agreement 
with  regard  to  which  they  observed  as 
follows : — 

"  It  is  contended  for  the  appellant  that 
the  admission  of  the  plaintiff  to  partnership 
with  the  defendants  is  not  a  transfer.  We 
are  of  opinion  that  it  ia.  It  is  no  doubt 
true  that  every  contract  of  partnership  is 
not  necessarily  a  transfer  but  it  is  equally 
clear  that  such  a  contract  may  in  many 
cases  involve  a  transfer.  Thus  if  two  per- 
sons agree  to  start  a  business  in  partnership 
and  to  contribute  capital  therefor,  there  ia 
no  transfer  involved  in  the  transaction. 
But  if  one  person  carrying  on  a  trade  and 
possessing  stock  and  capital,  admits  another 
into  partnership  with  himself,  making  the 
stock  and  capital,  the  joint  property  of  both, 
it  is  impossible  to  contend  that  there  is 
not  a  transfer  in  such  a  case1'. 

(3)  10  Ind  Cas.  126;  35  M.  582;   21  M.  L,  J,  425;  9  M 
fc,  T,  459;  (1911)  1  M.  W.  N.  371,  *  , 


KHODAY  GANOADARA  SAH  I?.  SWAMINADHA  MtJDALt. 


The  Tamil  document  filed  in  this  case  is 
far  from  clear  and  while  there  is  no  doubt 
that  all  the  profits  and  losses  were  agreed 
to  be  divided  amongst  the  four  partners  in 
equal  shares,  I  have  been  unable  to  iind  in 
the  document  any  words  of  transfer  even 
though  1  have  no  doubt  whatever  that  a 
transi'er  must  have  been  intended  by  the 
parties.  But  if  as  stated  in  the  case  of 
Marudamutliu  Pdlaiv.  Ranuasami  Mooppan 
(I)  the  object  of  the  rules  framed  for  the 
purpose  of  preventing  sale,  tiansfer  or 
subrenting  is  that  the  (Government  should 
not  lose  its  contiol  over  the  licensee,  it  is 
impossible  to  ^ee,  how,  by  the  mere  i'act 
that  a  licensee  admits  certain  persons  into 
partnership  with  him,  the  control  that  the 
Government  has  over  the  licensee  is  in  any 
manner  or  degree  lent.  Moreover,  when  the 
terms  of  a  contract  are  reduced  to  writing 
and  the  question  is  whether  the  contract 
is  illegal  by  icabon  of  its  seeking  to  do 
what  is  foi  bidden  by  law  and  the  contention 
is  that  the  agreement  operates  as  a  transfer, 
such  a  transier  should  not  merely  bo  pre- 
sumed but  must  appear  in  the  document 
if  not  in  terms  at  least  as  necessarily  in- 
volved. There  is  no  transfer  so  far  as  lean 
see  either  of  the  business  or  of  the  stock 
in  trade  or  of  any  interest  in  the  license; 
and  1  think  A\hat  the  parties  really  intended 
was  only  that  the  profits  and  losses  of  the 
concern  should  be  shared  by  them. 

The  next  case  cited  to  me  by  the  learned 
Counsel  for  the  first  defendant  was  Gana- 
pathi  Brakmayya  v.  Kurella  Ramiah  (4). 
With  all  respect  it  seems  to  me  that  the 
correctness  of  that  decision  is  open  to 
doubt.  The  clause  in  the  license  which  the 
learned  Judges  were  construing  was  as 
follows; — 

"The  privilege  of  supplying  and  vend- 
ing shall  net,  without  the  permission  of  the 
Collector  previously  obtained,  be  sold,  ex- 
changed or  sub-leased,  nor,  it  the  Collector 
has  ordered,  can  an  agent  be  appointed, 
without  his  permission  previously  obtain- 
ed, for  exercise  of  any  such  privilege." 

Construing  this  clause,  this  is  what  the 
learned  Judge  says: — 

**The  clause  prohibits  sale  by  a  stranger 
and  the  employment  of  an  agent.  In  our 
opinion  the  taking  of  a  partner  has  the 
effect,  ordinarily  of  selling  a  portion  of  the 
business  to  him.  It  has  certainly  the  effect 

(4)  M  Ind.  Cas,  45;  43  M.  HI,  10  L.  W,  476;  38  M,  L, 


[92  L  0. 1926] 

of  making    him   an  agent  for  the    sale  of 
liquor." 

I  cannot  possibly  understand  how  the 
learned  Judges  came  to  the  conclusion  on 
a  construction  of  the  clause  that  apart  from 
any  special  order  of  the  Collector  which 
is  not  referred  to  in  the  decision,  the  ap- 
pointment of  an  agent  was  regarded  as  for- 
bidden. The  clause  states  that  no  agent 
can  be  appointed  only  if  the  Collector  has 
so  ordered.  This  would  ordinarily  mean 
and  imply  that  in  cases  where  the  Col- 
lector has  not  so  ordered,  the  appointment 
of  an  agent  would  not  be  illegal.  There- 
fore, unless  it  be  that  in  that  case  it  was 
admitted  by  both  parties  that  the  Collector 
had  made  an  order  forbidding  the  appoint- 
ment of  an  agent,  it  is  impossible  to  under- 
stand the  judgment  or  regard  it  as  pro- 
perly decided.  Further  the  observation  of 
the  learned  Judges  that  in  their  opinion 
the  taking  of  the  partner  with  him  has  the 
effect  ordinarily  of  selling  a  portion  of  the 
business  to  hirn,  is  too  general  and  sweep- 
ing to  be  accuiate;  and  in  that  respect  I 
have  no  hesitation  in  stating  that  the 
law  with  regard  to  it  is  much  more  accu- 
rately stated  by  Benson  and  Sundara  Iyer, 
JJ.,  who  decided  the  case  of  Nalan  Pad- 
mainibha  v.  Badri  Nadh  Sarda  (3). 

On  the  other  hand  the  case  of  Natla 
Bapiraju,  v.  Puran  Achutha  Rajajee  (5) 
decided  by  Miller  and  Krishnaswami  Iyer, 
J  J.,  is  an  authority  for  a  decision  that  a 
partnership  agreement  with  a  licensee  is  not 
in  all  cases  and  under  all  circumstances 
illegal. 

These  are  the  Madras  cases  that  were 
cited  to  me.  In  the  case  for  Karsan  Sadaxhiv 
Patil  v.  Gatlu  Shivaji  Patil  (6)  Sir  Basil  Scott, 
C.  J.,  and  Chandavarkar,  J.,  held  that  the 
*  Indian  Legislature  was  by  no  means  blind 
to  the  possibility  of  partnerships  being 
enteied  into  by  licensees  in  which  other 
persons  may  become  interested  in  the  sale 
of  liquor  and  that  the  object  of  granting 
the  license  is  to  have  control  over  the 
person  v;ho  is  authorised  to  sell  the  liquor 
and  in  order  that  sale  of  the  liquor  may 
not  pass  out  of  his  control  to  unauthor- 
ised persons.  Proceeding  on  this  reason- 
ing, those  learned  Judges  held  that  a 
partnership  was  not  prohibited  by  the  terms 
of  a  license  which  merely  forbade  selling, 
transferring  or  sub-letting. 

(5)  5  Ind.  Cas  456,  20  M.  L.  J,  337;   (1910)  M  W.  N, 
549;  7  M.  L.  T.  176. 
ft)  19  Ind,  Oft*  442;  37  13,  320;  IS  Bom,  L.  K.  227, 


[92  I.  0.  1926] 


K30DAY 


.  StfAMTOAMA  1ITO1LT. 


nr 


In  the  case  of  Champsay  Dossa  v.  GOT- 
dhandas  Kessowji  (7)  Mr.  Justice  Maeleod 
sitting  singly  on  the  Original  Side  held 
with  reference  to  the  terms  of  the  license 
granted  for  manufacture  of  salt  that  the 
admission  of  partners  to  share  in  the 
profits  cannot  be  considered  as  a  sub- 
letting or  alienation  of  a  part  of  the  privilege 
unless  there  has  been  a  document  directly 
transferring  to  the  partners  a  part  of  the 
right  to  manufacture  or  vend.  He  accord- 
ingly held  that  a  partnership  agreement 
was  not  illegal  which  was  entered  into  by 
a  licensee  who  under  the  terms  of  the  license 
was  forbidden  to  sub-let,  mortgage  or  other- 
wise alienate  the  whole  or  any  part  of  the 
privilege  granted  by  the  licensee  of  manu- 
facturing salt  on  the  land. 

In  the  case  of  Gauri  S hanker  v.  Mumtaz 
All  Khan  (8)  Oldfield,  J  ,  who  was  one  of 
the  Full  Bench  of  that  Court  held  apparent- 
ly with  the  concurrence  of  the  Chief  Justice 
and  Mr.  Justice  Spankie  that  a  partner- 
ship contract  was  not  contrary  to  the  con- 
ditions of  a  lease  of  a  ferry  under  which  a 
transfer  or  sub-lease  by  the  lessee  was  for- 
bidden. 

In  none  of  the  cases  decided  in  the 
Calcutta  High  Court  and  to  which  reference 
was  made,  was  this  question  regarding 
partnership  raised  or  considered. 

In  these  circumstances  having  regard  to 
the  state  of  the  case-law  not  only  in  Madras 
but  in  British  India  generally,  the  weight 
of  considered  judicial  opinion  is  against 
regardinga  mere  partnership  agreementas 
being  ,  '  '  provision  of  law  which 
merely  A  .  sale,  transfer,  or  sub- 

letting. As  Mr.  Justice  Macleod  of  the 
Bombay  High  Court  points  out  as  Mr. 
Justice  Miller  and  Mr.  Justice  Krishna- 
swarm  Iyer,  J  J.,  and  Benson  and  Sundara 
Iyer,  JJ  ,  have  held,  a  partnership  agree- 
ment does  not  necessarily  involve  any 
transfer  by  the  licensee  to  the  persons  he 
admits  as  partners.  No  doubt  a  partner- 
ship agreement  might  also  effect  a  transfer 
forbidden  by  law  in  which  case  it  would  be 
bad  not  because  it  was  a  partnership  agree- 
ment but  because  it  was  a  deed  of  transfer. 
In  the  present  case  in  the  agreement  filed 
before  me,  no  words  have  been  relied  upon 
for  the  purpose  of  showing  that  they  are 
words  of  transfer  or  operate  to  effect  any 
transfer  of  property,  the  transfer  of  which 
is  forbidden  by  law.  As  I  read  the  docu- 

(1)   t()  Ind   Gas  803,  19  Bom.  L  K  331, 
(8)  kJ  A.  411,  llnd.  Dec.  (N.  s.)  828, 


ment  the  arrangement  entered  into  by  th« 
partners  was  quite  consistent  with  the 
licensee  remaining  as  the  legal  owner  but 
bound  in  equity  to  account  for  all  the 
profits  and  losses  to  his  other  partners. 

In  any  rase,  as  I  have  already  stated, 
what  I  have  to  consider  is  not  whether 
apart  altogether  from  the  law  of  the  Mysore 
State  such  a  contract  would  or  should  be 
upheld  by  this  Court  but  onlv  whether 
according  to  the  Law  of  the  Mvaore  State 
the  contract  was  void  in  its  inception.  If 
according  to  that  law,  as  deposed  to  by  the 
expert  witness  entering  into  a  partnership 
with  regard  to  the  rights  of  a  licensee  is 
perfectly  le#al,  this  Court  is  bound  to  hold 
that,  according  to  the  law  to  which  the 
contract  is  subject,  the  contract  is  not  void 
or  unenforceable,  and  1  am  glad  to  think 
that  the  rules  of  international  law  do  not 
oblige  the  Courts  of  a  foreign  country  to 
regard  as  against  the  law  or  as  opposed  to 
public  policy  and,  therefore,  void,  any  con- 
tract which  the  High  Court  of  the  very 
State  in  which  the  contract  was  intended 
to  be  performed  and  by  the  law  of  which  it 
was  intended  to  be  governed,  would  not  so 
regard  it. 

Some    difficulty,  no  doubt,   might    have 
arisen  if  according  to  the  State  of  the  Mysore 
Law  the  contract  would  be  illegal  and  the 
ground   of  illegality    should    appear  to  be 
not  any  fundamental  principle,  or  morality 
or  ethics  or  public  policy  but  some  regula- 
tion, which,  as  in  this  case,  has  for  its  chief 
purpose    the    realisation    of  revenue,   and 
such  a  State  happened   also  to  be  as  in  this 
case,  a  Protected    Indian  State.     It   is  pos- 
sible   that    even    in     those    circumstances 
British  Indian  Courts  might  feol  compelled 
to  give  effect    to  the  Law  of  the  Protected 
Indian    States  as   it  may  be  found    to   be. 
But  in  the  present   case  no   suc.h    question 
arises.  I  have,  therefore,  come  to  the  conclu- 
sion that    the     defence  of     illegality    set 
up   by   the    first  defendant    regarding*   the 
plaintiff's   claim  to  enforce  the  oonti actual 
obligation  has  not  been  made  out      There 
would,  therefore,  be  a  preliminary  decree  in 
the  suit  declaring  the  partnership  between 
the  plaintiff  and  defendants  N<>^   I,  2  and  3 
each  being  entitled  to  equal  slwio   of  profits 
and  losses  of  the  partnership  and  directing 
the  usual  accounts  of  the  partnership  to  be 
taken  from   the    first   day  of    July,  1^19  as 
provided   in    the    partnership     ague  ment. 
The  first    defendant    who  was  chielly  res- 
ponsible for  protracting    this   litigation  BO 


118  StrmBHAN  V,  ItENUKA. 

long,  will  pay  the  plaintiff  the  taxed  costs 
of  the  suit  up  to  date.  The  costs  to  be  in- 
curred before  the  Official  Referee  will  be 
dealt  with  at  the  time  of  passing  the  final 
decree  in  the  suit, 
v,  N.  v, 


[92 1,  0. 1926} 


NAGPUR  JUDICIAL  COM- 
MISSIONER'S COURT, 

SECOND  CIVIL  APPEAL  No.  41-B  OF  1923. 

August  22,  1925. 

Fmenf:—  Mr.  Kotval,  A.  J.  C. 

SURYABHANT—  APPELLANT 

versus 
RENUKA—  RESPONDENT. 

Transfer  of  Property  Act  (IV  of  l$82)t  s  T^-- 
Limitation  Act  (IX  of  190S),  Sch  I,'  Art  13>—  Mort- 
gagee, prior  and  subsequent—  Decree  obtained  b\i  prior 
mortgagee  paid  off  by  puisne  mortgagee  -Suit  by 
puisne  mortgagee  to  recover  money  paid  by  him  - 
Limitation,  commencement  of 

Under  s  74  of  the  Transfer  of  Property  Act  a  puisne 
mortgagee  on  paying  off  a  decree  obtained  by  a  prior 
mortgagee  acquires  all  the  rights  and  powers  of  the 
prior  mortgagee  as  such  as  determined  by  the  decree 
and  the  rights  so  acquired  by  the  puisne  mortgagee 
can  be  enforced  by  him  by  a  separate  suit.  Article 
132  of  Sch.  I  to  the  Limitation  Act  would  apply  to 
such  a  suit,  the  period  of  limitation  being  twelve  years 
from  the  date  on  which  the  money  became  due  to  the 
puisne  mortgagee,  that  is  to  say,  from  the  date  on 
which  the  puisne  mortgagee  paid  off  the  prior  mort- 
gagee's decree  and  became  entitled  under  the  pro- 
visions of  s.  74  of  the  Transfer  of  Property  Act  to 
the  rights  created  by  the  decree  (p  119,  cols.  1  &  2  j 

Second  appeal  against  a  decree  of  the 
District  Judge,  Amraoti,  dated  the  9th  No- 
vember 1922,  arising  out  of  a  decree  by 
the  Munsif,  Amraoti,  dated  the  28th  April 
1922. 

REFERENCE. 

Kotval,  A.  J.  C.—  (March  12,  1923).— 
The  plaintiffs  as  second  mortgagees  paid 
off  the  amount  found  due  to  the  first  mort- 
gagee in  a  suit  in  which  they  were  defend- 
ants. They  now  sue  the  mortgagor  and 
other  persons  in  possession  of  the  mortgag- 
ed property  for  the  recovery  of  the  amount 
so  paid.  The  lower  Courts  relying  on 
Nathuram  v.  Sheolal  (1)  divsmissed  the  suit 
on  the  ground  that  as  the  first  mortgage 
was  payable  on  the  10th  March  1907,  the 
suit  which  was  brought  on  the  21st  July 
1921  was  time-barred.  Nathuram  v.  Sheolal 
(1)  has  been  dissented  from  in  Bora  Shib  Lai 


2  Jnd.  Cas,  796;  19  N.  L,  R,  2J7, 


v.  Munni  Lai  (2)  and  in  my  opinion  requires 
to  be  considered  by  a  Bench.  I,  therefore, 
refer  to  a  Bench  to  be  appointed  by  the 
Judicial  Commissioner  the  point  whether 
the  question  of  limitation  has  been  rightly 
decided  in  Nathuram  v.  Sheolal  (1). 

Mr.  P.  C.  Dw«,  for  the  Appellant. 

Messrs.  Atmaram  Bhagwant&nd  Shridhar 
Atmaram,  for  the  Respondent. 

OPINION  OF  THE  BENCH. 

Findlay,  O.  J.  C.  and  Kotval,  A. 
J.  C.— (August  11, 192$.)— Vithal  Sheoram 
and  others  brought  a  suit  on  a  mortgage, 
dated  the  10th  March  1905,  executed  by  the 
father  of  defendant  No.  1,  Ganpat  against 
Ganpat  and  the  present  plaintiffs,  who  were 
subsequent  mortgagees  and  obtained  a 
preliminary  decree  for  foreclosure.  The 
plaintiffs  paid  the  decretal  amount  into 
Court  and  now  sue  to  recover  it  from  Gan- 
pat. In  default  of  payment  they  claim 
foreclosure  or  in  the  alternative  sale.  The 
latter  relief  they  claim  apparently  on  the 
ground  that  they  acquired  a  charge  by  the 
pavment  of  the  decretal  amount. 

The  lower  Appellate  Court  relying  on 
Nathuram  v.  Sheolal  (1)  has  held  that  the 
claim  is  time-barred  and  has  dismissed  the 
suit.  The  point  referred  to  this  Bench  is 
whether  the  decision  as  to  limitation  in  that 
case  is  correct. 

Nathuram  v.  Sheolal  (1)  was  referred  to 
and  dissented  from  by  a  Bench  in  Bora 
Shih  Lai  v.  Munni  Lai  (2).  The  learned 
Judges  there  observed  :  — 

"It  is  impossible  to  hold  that  the  right 
of  the  plaintiff  accrued  before  he  made  any 
payment  at  all.  In  that  ruling  the  learned 
Judge  seems  to  have  assumed  that  the 
plaintiff  was  the  assignee  of  the  decree. 
Under  s.  74  of  the  Transfer  of  Property 
Act  he  no  doubt  acquired  the  rights  and 
powers  of  the  mortgagee  whom  he  redeem- 
ed, but  the  fact  of  his  redeeming  the  prior 
mortgage  does  not  make  him  an  assignee 
of  the  mortgage.  His  lights  may  be  akin 
to  those  of  an  assignee,  but  he  is  not  the 
actual  assignee.  If  he  had  been  the  assignee 
of  the  mortgage  and  no  suit  had  been 
brought  on  the  basis  of  the  mortgage  by  the 
prior  mortgagee,  he  would  have  been  bound 
to  bring  his  suit  to  enforce  that  prior 
mortgage  within  the  period  of  limitation 
which  wag  available  to  the  prior  mortgagee. 
But  a  suit  like  the  present  is  not  a  suit  to 
enforce  the  prior  mortgage  nor  is  it  an. 

(2)  63  Tnd.  Caa  604;  44  A.  67;  3  U.  .  L,  R.  (A.)  193; 
19  A,  L,  J  *10,  UW  A.  L  R,  (^  135- 


[92  I.  0. 1926] 


application  for  thd  execution  of  the  decree 
obtained  on  the  basis  of  the  prior  mort- 
gage/* 

In  Sibanand   Misra    v.    Jagmohan    Lai 
(3),  Das,  J.,   dissents  from  the  above  view. 
Under  s.   74,  Transfer  of   Property  Act, 
the  puisne  mortgagee  on   paying    off  the 
prior  mortgagee  acquires  all  the  rights  and 
powers  of  the    prior    mortgagee  as    such. 
These  rights  and  powers  are  the  rights  and 
powers  created  by  the   decree :   Narayan  v. 
Nathmal  (4).    In  the  present  case  they  are 
the  rights  to  the  payment  of  the  amount 
decreed  and  foreclosure  in   default  of  pay- 
ment. It  is  these  rights  whiVh  maybe  said  to 
be  implied ly  assigned  by  law  to  the  puisne 
mortgagee  and  not  to  the  rights  under  the 
mortgage   which     became    merged    in  the 
decree.    It  would  be     hard  and  unjust  in 
some    cases  to  hold   that  it  is  the  rights 
under  the  mortgage  which  are  assigned  to 
the  puisne  mortgagee.    To  protect  his  in- 
terest under  his  own  mortgage  the  puisne 
mortgagee  must  satisfy  the  mortgage  decree 
where  the  mortgagor  fails  to  do  so.    But 
before  the  time   comes  for  him  to  pay  it 
up,  a  claim  on  the   basis  of  the  mortgage 
may  have  become  time-barred.    The  result 
would  be,  where  the  condition  in  the  prior 
mortgage  was  one  of  foreclosure,  that  the 
puisne  mortgagee  would  have  to  pay  up  the 
prior  mortgage   debt  without  being  able  to 
recover  it  from  the  mortgagor  or  be  fore- 
closed and  lose   the   amount   advanced   by 
him  to  the  mortgagor.    It  is  said   that  the 
hardship  may  be  avoided  by  enforcing  the 
assignment  under  s  74  in  the  same  suit  and 
asking    for  a     decree   in   Form   6.     Form 
No.   6,  however,  refers  to    a  case  where  the 
claims  on  both  the  prior  and  puisne  mort- 
gages are  decided  and  decreed  against  the 
mortgagor  in  the  same  suit.    There  might 
be  a  decree  in  Form  7  in  a  case  like  the 
present  but  even  then  all  that   the  Court 
may  do  is  to  grant  a  declaration  keeping 
alive  the  mortgage  in  favour  of  one  of  the 
parties.    It  does  not  allow  of  any  further 
action  in  the  same  suit  by  the  puisne  mort- 
gage against  the  mortgagor. 

The  rights  acquired  by  the  puisne  mort- 
gagee can  be  enforced  by  a  separate  suit : 
Gopi  Narain  Khanna  v.  Bansidhar  (5). 

(3)  68  Ind.  Gas.  707,  1  Pat.  780;  3  P.  L.  T,  533,  (1922, 
Pat  331,  (1922)  A.  I   R.  (Pat)  490. 

(4)  65  Ind.  Cas  27G;  17  N.  L.  R.  200;  (1922)  A  I  K. 
(N )  1.15. 

(5)  27  A  325;  2  C.  L  J.  173;  9  0.  W.  N.  577;  7  Bom. 
L  H.  427,  15  M.  L  J  191;  2  A.  L.  J.  336;  32  L  A.  123; 
88ar.  P.C.J  779  (P.  C.). 


DORARWAMt  NTADAH  V.  JOSEPH  I,  MOTHBR.  119 

Article  132,  First  Schedule,  Limitation  Act, 
would  apply  to  such  a  suit  the  period  of 
limitation  being  12  years  from  the  date 
the  money  became  due  The  money  decreed 
can  bo  said  to  have  become  due  to  the 
plaintiff  and  the  right  to  foreclose  in 
default  of  its  payment  to  have  arisen  in 
his  favour  only  when  he  made  the  payment 
and  became  entitled  under  the  provisions 
of  s.  71  to  the  rights  created  by  the  decree. 
This  view  finds  support  in  Parvati  Ammal 
v.  Venkatarama  Aiyar  (6). 

In  Mahomed  Ibrahim  Hosseinv.  Ambika 
Pershad  Singh  *7),  the  claim  was  made  on 
the  basis  of  the  prior  mortgage  which  was 
claimed  and  held  to  have  been  kept  alive 
for  the  subsequent  mortgagees'  benefit.  The 
mortgage  had  not  merged  in  a  decree.  The 
present  claim  is  based  upon  the  new  rights 
created  by  the  decree. 

We  are,  therefore,  of  opinion,  that  the 
question  of  limitation  has  not  been  rightly 
decided  in  Nathuram  v.Sheolal  (1) 

JUDGMENT. —The  plaintiffs'  claim 
was  resisted  in  this  Court  on  the  grounds 
that  a  separate  vsuit  was  not  maintainable 
and  that  in  any  case  the  suit  was  barred  by 
limitation.  Both  these  points  fail  in  view 
of  the  opinion  of  the  Bench. 

The    appeal,     therefore,    succeeds.     The 
plaintiff^1  claim  will  be  decreed   with  costs 
throughout, 
z  IK  Appeal  allowed. 

(6)  81  Ind  Cas  771   47  M    L   J  316;  (1921)    M  W. 
N  517;  (1924)  A   1  R  (M )  80. 

(7)  U  Ind  Cas  400,  3D  G  527,  11  M  L.  T  2<>5,  (1012) 
M    W  N  3G7,  1)  A  I;   J  332,  14  Bom  L.  K  280;  16  C. 
W   N,  .105,  15  C.  L  J   411,  22  M.  L    J.  468,  30    I  A. 
68  (P  C ) 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITIONS  Nos.  940  AND  941 

OP  1923. 

September  12, 1925. 

Present:-- Mr.  Justice  Odgers, 

A.  DORAS  WA  MI  NADAR— PETITIONER 

versus 

JOSEPH  L.  MOTHER  AND  ANOTHER— 
RESPONDENTS. 

Madras  District  Municipalities  Act  \V  of  1030)  — 
Rules  for  conduct  of  Elections,  r  2  (J)— Nomination 
paper— Signature  by  aqent  of  candidate,  validity  of — 
Acceptance  of  nomination  paper  6y  Returning  Officer — 
Misconstruction  of  rules— Revision —Civil  Procedure 
Code  (Act  V  of  1908],  s.  115. 

Under  r.  2  (2)  of  the  Rules  for  the  conduct  of 
Elections  under  the  Madras  District  Municipalities 


120 


DORASWAMI 


Act,  it  is  the  candidate  himself  who  must  sign  the 
nomination  paper  A  nomination  paper  signed  by  an 
agent  of  the  candidate  with  his  authority  is  invalid. 

The  validity  of  a  nomination  paper,  even  after  it 
had  been  accepted  by  the  Rot  r,  mi  ML-  Officer,  may  be 
questioned  after  the  election  Th  C-\\i\.  has,  there- 
fore, jurisdiction  to  enquire  into  the  matter  and  if 
necessary  deelnre  the  election  void 

A  mere  error  in  the  construction  of  rules  by  a 
Court  sitting  to  dispose  of  an  election  petition  is  not 
a  ground  for  interference  in  revision  under  s.  115,  0. 
P.  C  ,  by  the  High  Court 

Petition,  under  s  115  of  Act  V  of  1908 
and  s.  107  of  the  Government  of  India  Act, 
praying  the  High  Court  to  revise  the  orders 
of  the  Court  of  the  Subordinate  Judge, 
Tuticorin,  in  0  S.  Nos.  7  and  8  of  1923  res- 
pectively. 

Messrs.  T.  R.  Vcnkatarama  Saslriar  and 
K,  S.  Sankara  Iyo\  for  the  Petitioner. 

Mr  K.  It.  R<tm,a  Iyer,  for  the  Respondents. 

JUDGMENT.— These  are  revision 
petitions  to  revise  the  decision  of  the 
learned  Subordinate  Judge  of  Tuticorin  in 
petitions  presented  to  him  under  the  Madras 
Municipalities  Act,  1920  It  appears  that 
in  an  election  for  the  Tuticorin  Munici- 
pality, 8th  ward,  which  was  to  be  held  in 
January  1923,  a  nomination  paper  was  put 
in  for  Mr.  A  Doraiswami  Nadar  which  was 
admittedly  not  signed  by  the  candidate  but 
the  name  of  the  candidate  was  written  in 
the  nomination  paper  by  his  son  owing  to 
his  (candidate's  absence  at  the  time)  The 
learned  Subordinate  Judge  has  found  that 
the  son  was  authorised  to  sign  his  father's 
signature  for  this  purpose  but  it  has  to  be 
observed  that  the  signature  purports  to  be 
that  of  the  candidate  and  there  is  no  indica- 
tion that  it  is  written  by  somebody  else. 
The  learned  Subordinate  Judge  has  held 
that  the  son  was  in  fact  authorised  so  to 
sign  but  under  the  Election  Rules  to  which 
reference  will  be  made  in  a  moment,  such  a 
signature  by  the  agent  is  not  recognised 
and,  therefore,  the  nomination  paper  was 
invalid. 

Por  the  petitioner  two  points  are  urged  ; 
(1)  that  Dot  only  under  the  Common  Law 
but  under  many  English  Statutes  signature 
by  the  agent  even  orally  authorised  is  per- 
fectly good  and  sufficient  (2;  that  as  the 
nomination  paper  has  been  accepted  by  the 
Chairman  no  question  as  to  its  validity  is 
now  open  The  learned  Subordinate  Judge 
hascaiofnlly  gone  into  the  provisions  con- 
tainer! in  the  rules  and  he  has  come  to  the 
conclusion  that  their  object  and  scope 


>.  JOSEPH  L,  MOTHER,  [W  I.  0,  1926] 

require  that  the  signature  should  be  put  in 
by  the  very  party  concerned  and  not  by  his 
proxy.  Kule  2  (2)  runs  thus  : 

"Every  nomination  paper  shall  be  sub- 
scribed by  two  such  electors  as  proposer 
and  seconder  and  the  candidate  shall  sub- 
scribe a  declaration  on  it  expressing  his 
willingness  to  stand  for  election.1' 

I  am  of  opinion  that  it  is  no  guide  to 
refer  to  various  English  cases  such  as  In  re 
Whitley  Partners  (1),  which  is  a  case  under 
the  Companies  Act  or  the  dictum  in  1 
Halsbury's  Laws  of  England  page  157  that 
an  agent  may  be  authorised  to  sign  for 
another  orally,  which  of  course  cannot  be 
disputed,  nor  has  the  case  cited  in  Pritchard 
v.  Bangor  Corporation  (2)  anything  to  do 
with  this  matter.  I  am  not  disposed  to 
disagree  with  the  construction  placed  on 
r.  2  (2)  by  the  learned  Subordinate  Judge. 

As  to  the  second  point,  that  once  the 
Chairman  has  passed  the  nomination  paper 
it  is  beyond  question,  that  I  think  is  dis- 
proved by  the  rules  for  the  decision  of  dis- 
putes. Government  Order  1134,  dated  30th 
November  1920.  Under  r.  11  (c)  "if  in  the 
opinion  of  the  Judge  the  result  of  the 
election  has  been  materially  affected  by  any 
irregularity  in  respect  of  anominatian  paper 

the  election 

of  the  returned  candidate  shall  be  void." 
That  must  refer  to  a  nomination  paper 
after  it  has  been  accepted  by  the  Chairman 
and  what  turns  out  to  be  invalid  or  irreglar. 
The  Judge  is  there  given  jurisdiction  to 
enquire  into  the  matter  and  if  necessary 
declare  the  election  void.  That  is  a  strong 
argument  against  the  sanctity  of  a  nomina- 
tion paper  which  has  been  accepted  by  the 
Chairman. 

Another  point  has  been  argued  with 
reference  to  these  revision  petitions  and 
that  is  that  they  do  not  lie  and  in  the  latest 
Full  Bench  decision  in  C.  R.  P.  No.  541  of 
1923  the  Chief  Justice,  Phillips  and 
Kumaraswami  Sastri,  JJ.,  in  a  very  similar 
case  to  this  held  in  a  decision  as  to  the 
construction  of  rules  which  are  similar  that 
there  was  no  question  of  jurisdiction  or  of 
acting  illegally,  "that  the  learned  Judge 
had  a  point  of  construction  before  him  and 
he  decided  it  to  the  best  of  his  ability'1  and 
"that  the  question  of  doubtful  construction 
of  a  iiile  is  not  one  that  would  enable  the 

(1)  (1886)  32  Ch  D  337;   55  L    ,T    Ch.  540;    54  L.  T 
912,  34  W.  R.  505. 

(2)  (1888)1:  A  C.  241;    57   L.  J.  Cj.  13.  313:  08  L    T. 
502; 37  YT  K.  103;  52  J.  P.  564, 


[98  I.  0. 1928] 

Court  to  interfere  in  revision."  In  my 
opinion  these  rules  are  strictly  within  the 
purview  of  those  remarks  in  the  latest  Full 
Bench  case.  Even  if  they  are  not  and 
civil  ^revision  petitions  do  lie,  I  am  of 
opinion  for  the  reasons  given  above,  that 
the  learned  Subordinate  Judge  is  correct  in 
the  decision  that  he  arrived  at.  There  is 
no  doubt  that  in  this  case  if  an  invalid 
nomination  paper  was  in  fact  received  and 
admitted  the  result  of  the  election  would  be 
materially  affected. 

The  civil  revision  petitions  must  be 
dismissed,  C.  R.  P.  No.  940  without  costs 
and  C.  R.  P.  No.  91  i  with  costs. 

v.  N.  v.  Petitions  dismissed. 

Z,  K. 


KESHEO  V.  JAOANNATH, 


151 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 
FULL  BENCH* 

SECOND  CIVIL  APPEAL  No.  396-B  OP  1923. 

September  5  and  21,  1925. 

Present :— Mr.  Findlay,  Officiating  J.  (J , 

Mr.  Hallifax,  A.J.G.  and  Kotval,  A.  J.  C. 

KESHEO  AND  ANOTHER— APPELLANTS 

versus 
JAGANNATH— RESPONDENT. 

Hindu  Law  -  Joint  family—  Widow  and  s>tcp-t>on  — 
Widow  managing  estate —Alienation  by  widow - 
tienefit  of  estate — Alienation,  whether  binding  on  step- 
sun — Female  member,  whether  din  be  manager  /*/e- 
cedents— Official  Reports 

PerCwicnn. — A  sate  by  a  Hindu  wulmv  \vlio  was 
managing  the  estate  of  liur  minor  ,son  and  step-s-m  of 
a  part  of  the  unmoveable  prnpoitv  belnn^in^  Id  the 
estate  foi  ncL'cssarv  purposes  is  valid  and  binding  on 
the  step-son  [p  122,  col  2,  p.  124,  e<J.  ?] 

[  Case-law  reviewed  J 

Per  HalliJ-axt  A  J  C  -Any  adult  membri  of  ;i 
joint  Hindu  family  whether  male  01  female  is  entitled 
to  be  a  manager  of  sue.h  family  fp  12i,  e<>!  1| 

Every  Court  subordinate  to  the  Judiewl  Commis- 
sioner's Court  in  Central  Provinces  and  Her<ir  is 
bound  to  follow  a  ruling  published  111  Cential  Pro- 
vinces Law  Reports  or  Nag  pur  Law  Repoits  until 
it  has  been  overruled  by  another  ruling  smiilntlv 
published  Kven  in  the,  Judicial  Commissioner's 
Court  according  to  an  old  standing  mle  of  prac- 
tice u  Judge  sitting  alone  always  follows  an 
officially  published  ruling  If  he  doubts  the  correct- 
ness of  such  ruling,  the  only  course  properly  open  to 
him  is  to  refer  the  matter  for  the  decision  of  a  Bench 
[p.  122,  col.  l.J 

FACTS.— Plaintiffs'  father  Rambharti 
died  about  12  years  ago.  Rambkaiti  by 
his  senior  wife  Musammat  Ani  got  plaintiff 
No.  1  and  by  his  junior  wife  Musammat  Jani 


got  plaintiff  No.  2.  Within  two  years  after 
Rambharti's  death,  Musammat  Ani  sold  a 
site  for  Rs.  50  to  the  defendant  by  a  re- 
gistered sale-deed  (Ex.  D-l)  on  26th  Feb- 
ruary 1913.  This  sale-deed  h  executed  by 
Musammat  Ani  alone  for  herself  and  also 
as  guardian  of  plaintiff  No.  1  (her  son).  The 
defendant  has  built  a  house  over  this  site. 
The  plaintiffs  claimed  to  recover  the  site 
along  with  the  house  and  shop  over  it  (with 
superstructure)  from  the  defendant  on  the 
grounds  that  the  sale  was  without  legal 
necessity,  that  Musammat  Ani  was  deceived 
by  the  defendant,  that  asshe  was  anidiotshe 
was  persuaded  to  make  the  sale  and  that  she 
was  not  the  guardian  of  plaintiffs  Nos.  1 
and  2.  The  defendant  contested  the  claim 
alleging  that  plaintiffs'  claim  was  barred  by 
time  as  their  suit  was  filed  long  after  three 
years  lapsed  from  "the  date  of  the  majority 
of  plaintiff  No.  1.  On  other  points  of  legal 
necessity  and  the  guardianship  of  the 
plaintiff  he  joined  issue.  The  lower  Court 
found  that  plaintiff  No  1  was  aged  24 
when  the  suit  was  filed,  that  plaintiff  No.  1's 
suit  is  barred  by  time  because  Art.  yl  of 
the  First  Schedule  of  the  Indian  Limitation 
Act,  1DOS  applies  as  the  sale  by  his  de  facto 
and  de  jure  guardian  is  voidable  and  not 
ah  initio  void,  that  plaintiff  No,  2's  suit  is 
not  barred  because  Art.  144  applies  as  the 
sale  is  ab  initio  void  (if  not  for  legal  neces- 
sity), that  Musammat  Ani  who  managed  the 
affairs  of  the  plaintiffs1  joint  family  after 
her  husband's  death  was  the  "guardian"  of 
plaintiffs'  estate  in  law  and  that  the  sale 
was  for  legal  necessity.  Plaintiffs1  claim, 
was,  therefore,  dismissed  with  costs. 

Mr.  G.  R  Pradhan,  for  the  Appellants. 

Sir  Dr.  //.  if.  GOUT  and  Mr.  M.  B.  Marathe, 
for  the  Respondent. 

OPINIONS  OF  THE  FULL 

BENCH. 

Hallifax,  A.  J.  C.— (September  ~>,  1025}. 
— Th^  head-note*  in  Husen  v.  Rajaram  (1) 
is  as  follows:  "An  alienation  of  the  property 
of  a  minor  by  a  person  who  is  that  minor's 
gnaidian  de  'facto  but  not  de  jure  is  not 
merelv  voidable  but  absolutely  void,  and 
the  minor  need  not  sue  to  have  it  set  aside 
before  he  can  obtain  possession  of  the  pro- 
perty Articles  44  and  91  of  the  Second 
Schedule  of  the  Limitation  Act  do  not 
apply  to  such  a  case."  That  is  a  correct 
epitome  of  the  view  of  the  law  set  out  in 

(1)  20  Ind.  Caa.  813;  10  N  L  R.  133 

"^Head-note  of  10  N,  L,  K.  133.-  [Ed.]  * 


122 


KBIHIO  V,  JAOiNNATH. 


my  judgment  in  the  case,  in  which  the  alie- 
nation in  question  was  a  sale  of  the  pro- 
perty of  a  minor  Hindu  by  the  elder  of  his 
father's  two  widows,  his  mother  being  the 
younger.  In  the  present  case  also  the  alie- 
nation was  by  the  elder  of  two  Hindu 
widows  of  property  belonging  jointly  to 
her  son  and  the  son  of  the  younger  widow, 
both  minors  at  the  time,  and  the  sale  was 
for  their  benefit  and  necessary  in  their  in- 
terests. 

In  both  these  cases,  as  in  all  the  others 
to  be  mentioned  later,  the  person  who  made 
the  alienation  purported  to  act  as  the 
guardian  of  the  minor.  The  learned  Judge 
of  the  lower  Court  has  dissented  from  two 
officially  published  rulings  of  this  Court, 
the  one  already  mentioned  and  Vithu  v. 
Devidas  (2)  which  discussed  and  followed  it, 
and  has  preferred  to  follow  the  view  ex- 
pressed in  three  judgments  of  Judges  of 
this  Court  not  officially  published.  The  re- 
ferences to  such  judgments  should  always 
be  by  the  number  and  year  of  the  case,  and 
not  by  the  page  of  some  unauthorised 
publication  of  which  this  Court  may  or 
may  not  have  a  copy.  In  this  case  it  has 
not  got  a  copy  of  the  publication  mentioned. 

The  impropriety  of  refusing  to  follow  a 
judgment  of  ;this  Court  published  officially 
needs  to  be  pointed  out,  because  it  is  so 
common.  Every  Court  subordinate  to  this 
Court  is  bound  to  follow  a  ruling  published 
in  the  Central  Provinces  Law  Reports  or 
the  Nagpur  Law  Reports  until  it  has  been 
overruled  by  another  judgment  similarly 
published.  Even  in  this  Court  according 
to  an  old  standing  lule  of  practice,  which 
the  Judges  of  this  Court  declared  they 
would  follow  in  an  order  published  on  the 
21st  of  August  1913,  a  Judge  sitting  alone 
always  follows  an  officially  published 
ruling.  If  he  sees  reason  to  doubt  the  cor- 
rectness of  such  a  ruling  the  only  course 
properly  open  to  him  is  that  taken  by 
my  brother  Kotval  in  this  case,  to  refer  the 
matter  for  the  decision  of  a  Bench. 

The  three  unpublished  j-i  \x  :.,•-.•  -of  this 
Court  followed  in  the  lower  Court  are  men- 
tioned in  the  order  of  reference  to  a  Bench 
which  is  quoted  below.  The  first  of  them 
frankly  dissented  from  Huszu  v.  Rajaram 
(1)  and  the  otlur  two,  with  the  judgment 
of  the  lower  Court  in  the  present  case,  dis- 
sented from  Vithu  v.  Devidas  (2)  as  well, 
though  Kinkhede,  A.  J.  C.,  in  the  judgment 
from  which  an  extract  is  given  below,  seems 
to  have  thought  that  his  view,  with  that  of 


[92  I.  0. 1926] 

Stanyon,  A.  J.  C.,  was  accepted  in  Vithu  v. 
Devidas  (2).  It  happens,  however,  that  the 
final  decision  of  each  of  the  four  cases  is 
correct,  though  the  reasons  given  for  it  are 
unsound. 

In  the  present  case  the  two  brothers 
whose  property  was  sold  have  appealed 
against  the  decision  that  the  transfer  of  the 
half  of  the  property  belonging  to  the  son 
of  the  widow  who  did  not  join  in  executing 
the  transfer  is  valid.  The  reference  to  the 
Bench  was  made  by  Kotval,  A.  J.  0.  in 
these  terms:  "  The  question  here  is  whe- 
ther a  sale  by  a  Hindu  widow  who  was 
managing  the  estate  of  her  minor  son  and 
step  son  of  a  part  of  the  immoveable  pro- 
perty belonging  to  the  estate  for  necessary 
purposes  is  valid  and  binding  on  the  step- 
son The  appellants  contend  that  it  is  not 
and  rely  on  JIusen  v.  Rajaram  (1),  where 
the  facts  were  more  or  less  similar.  The 
respondent  points  out  that  three  Judges  of 
this  Court  have  differed  from  that  ruling, 
vide  S.  A.  No.  316-B  of  1914,  S.  A  No.  49.5 
of  1921  and  8.  A.  No.  303-B  of  1923.  In 
these  circumstances  it  appears  desirable 
that  the  correctness  of  that  ruling  should  be 
considered  by  a  Bench/' 

The  answer  I  would  give  is  this.  The 
statement  of  law  in  Huwn  v.  Rajaram  (1), 
which  is  repeated  in  Vitku  v.  Devidas  (2), 
is  perfectly  correct,  but  the  final  decision 
of  those  cases  is  wrong  because  of  a  fact 
existing  in  each  of  them  which  was  not 
brought  to  the  notice  of  the  Court.  The 
statement  of  law  in  the  judgment  of  the 
lower  Court  in  the  present  case  and 
in  the  judgments  of  this  Court  in  the 
three  cases  mentioned  in  the  Order 
of  Reference  is  wrong,  but  the  decision  of 
ea^h  of  the  four  cases  is  correct  because 
of  the  same  fact  though  there  also  it  escap- 
ed the  notice  of  the  Court.  That  fact  is 
that  the  transferor  on  behalf  of  the  minor 
in  each  case,  though  purporting  to  act  as 
the  guardian  of  the  minor,  was  the  manager 
of  the  Hindu  family  of  which  the  minor 
was  a  member  and  really  acted  in  that 
capacitj7. 

In  the  case  of  1914  decided  by  Stanyon,  A. 
J.  C ,  there  were  two  fatherless  minors 
whose  mother  had  married  again,  and  they 
were  living  with  their  brother-in-law,  who 
was  as  in  fact  looking  after  their  property  as 
well  as  their  persons  and  made  the  alienation 
in  question.  In  the  ca^e  of  19  Jl  decided 

(2)  51  lud,  Oas.  943;  15  N.  L,  R,  55. 


f92  I.  0. 192RJ 


KESBEO  V.  JAGANNATH, 


153 


by  Prideaux,  A.  J.O,,  there  was  one  minor, 
and  the  alienation  was  made  by  his  step- 
mother, his  own  mother  being  dead.  In  the 
case  of  1923  decided  by  Kinkhede,  A.  J.  C., 
the  alienation  was  by  the  paternal  grand- 
mother of  the  two  minor  sons  of  one  father 
and  two  mothers,  of  whom  the  father  and 
one  mother  were  dead.  In  all  three  cases 
the  minors  were  Hindus. 

In  each  of  these  three  cases  the  person 
who  actually  made  the  alienation  purport- 
ed to  act  as  guardian,  and  was  treated  in 
the  judgment  as  the  guardian,  de  facto 
but  not  de  jure.  The  decisions  rested  on 
the  view  that  there  is  a  difference  between 
Hindu  Law  and  Muhammadan  Law  in 
respect  of  the  right  to  dispose  of  the  pro- 
perty of  a  minor  held  by  a  person  who  is 
in  fact  acting  as  the  guardian  of  the  minor 
but  without  any  right  to  do  so;  that  accord- 
ing to  the  Hindu  Law,  such  a  guardian  even 
though  self-constituted  can  alienate  the  pro- 
perty of  the  minor  whom  he  has  taken 
under  his  protection,  provided  only  that  the 
alienation  is  for  the  minor's  benefit. 

This  appers  to  be  a  wrong  statement  of  a 
correct  principle,  but  it  was  the  position 
taken  before  the  Bench  in  this  rase  on  be- 
half of  the  appellants.  The  reasons  urged 
to  support  it  are  fully  set  out  in  the  judg- 
ment of  Kinkhede,  A  J.  C  in  the  last 
of  the  cases  already  mentioned  in  these 
words: 

"Jn  my  opinion,  an  alienation  by  a  Je  farto 
guardian  of  a  Hindu  minor  has  not  the 
same  effect  as  an  alienation  by  a  dc  'facto 
guardian  of  a  Muhammadan  minor.  It  has 
been  laid  down  in  Hunooman  Persaud 
Pan  day  v.  Babooee  Munraj  Koonweree  (3) 
that  'under  the  Hindu  Law  the  right  of 
a  bona  fide  incurnbran^er,  who  has  taken 
from  a  de  facto  manager  a  charge  on 
lands  created  honestly,  for  the  purposes 
of  saving  the  estate,  or  for  the  benefit  of 
the  estate,  is  not  (provided  the  Circum- 
stances would  support  the  charge  had 
it  emanated  from  a  de  facto  and  de  ptre, 
manager)  affected  by  the  want  of  union 
of  the  de  facto,  with  the  de  jure  title.1  This 
view  has  been  consistently  accepted  as  a 
correct  exposition  of  Hindu  Law  in  a  Dories 
of  cases  of  the  several  High  Courts,  cf.  Rai 
Amnt  v.Bai  Manik  (4;,  Mohanuud  Mondul 


(3)  6  M.  1.    A.  393   at  pp  412,    413;    18  W.  R.    Sin, 
SeVestre  253n;  2  Suth.  P.  0.  J.  29;    1  Sar.  P.  0.  J.  552, 
19  K  R.  147. 

(4)  12  B.  H.  0.  B.  79. 


v.  Nafur  Mondul  (5),  Thayamal  v.  Kuppnnna, 
Koniam  (6),  Jagov,  0  odat  (7  )^nd  Somwarpuri 
v.  Copalsingh (8) decided  by  Stanyon,  A.  J.  C., 
on  28th  April  191&  and  quoted  with  approval 
in  Vitha  v.  Devidas  (2),  by  Mittra,  A.  J.  C. 
Under  Muhammadan  Law  dejacto  guardian 
has  no  i<v  -ini-rd  position  and  is  no  better 
than  an  otiicious  intermecldler  who  as 
pointed  out  by  their  Lordships  of  the  Privy 
Council  in  Mata  Din  v.  Ahmad  A  li  (9)  'may, 
by  his  de  facto  guardianship,  assume  im- 
portant responsibilities  in  relation  to  the 
minor's  property,  but  he  cannot  thereby 
clothe  himself  with  legal  power  to  sell  it.1  In 
the  aforesaid  case  of  Mata  Din  (9)  the  point 
whether  a  sale  by  a  de  facto  guardin  if 
made  of  necessity  or  for  payment  of  an 
ancestral  debt  affecting  the  minor's  property 
arid  if  beneiicial  to  the  minor  was  altoge- 
ther void  or  voidable,  was  not  decided  by 
their  Lordships  of  the  Privy  Council,  nor 
were  the  observations  of  their  Lordships 
such  as  could  apply  to  the  case  of  the 
alienation  by  a  de  facto  guardian  under 
Hindu  Law.  There  is  a  fundamental  dis- 
tinction between  the  guardian  under  the 
two  systems  of  jurisprudence.  The  actual 
structure  of  the  Hindu  society  with  its  joint 
family  system  is  a  thing  unkown  to  the 
Muhammadan  society.  Under  the  Muham- 
madan Law  a  de  facto  guardian  has  no  re- 
cognised position  while  the  Hindu  Law  gives 
to  him  a  position  identical  to  that  acknow- 
ledged in  a  de  jure  guardian  In  this  respect 
as  pointed  out  by  Dr.  Gourin  his  Hindu 
Code,  page  445,  2nd  Edition  *the  Muham- 
madan Law  offers  no  analogy  but  rather 
presents  a  contrast  .  The  one  enquires  who 
made  the  alienation,  the  other  why  it  was 
made  .This  distinction  between  the  two 
systems  appears  to  have  been  ignored 
in  a  case  in  which  an  alienation  by  a 
Hindu  de  facto  guardian  was  treated  as 
ipso  facto  void,  Ilussen  v.  Rajaram  (I).1 
That  this  is  so  is  clearly  pointed  out  by 
8tan>on,  A  J  C.,  in  Somwarpuri  v.  Gopal 
Singh  (8)  referred  to  above,  I,  therefore,  re- 
spectfully record  my  dissent  from  the  view 
taken  in  Hussen  v.  Rajaram  (I)  and  pre- 
fer to  follow  the  view  taken  in  Somwarpuri 
v.  Gopal  Singh  (8)." 

(5)  26  G.  820,'  3  C,  W.  N.  770,  13  Ind.  Dec.  (N.  s  ) 
1125. 

(G)  26  Ind.  Gas.  179,  38  M.  1123,  27  M.  L.  J.  285. 

(7)  4  N.  L  R.  20 

'8)  49  Ind  Gas  216 

fil)  1  \  Ind.  Gas.  976;  34  A.  213;  16  0.  W.  N.  338;  11 
M.  J,  T  H3%  (1912)  M  W.  N.  183,  9  A.  L.  J.  215,  15  G. 
L  J  270,  U  Bom.  L.  B.  192;  15  0,  G,  4y,  23  M.  L.  J, 
0;  39  I.  A.  49  (P,  0.). 


124 


PAZEANIANDY  TARAKAN  V,  MWRVKAFPA  TARAKAN, 


The  "structure  of  Hindu  seciety,  with 
its  joint  family  system"  certainly  does  differ 
from  that  of  any  other  society  in  the  world 
hut  that  does  not  give  any  person  the 
right  to  take  charge  of  the  property  of  any 
minor  he  may  come  across,  just  because  he 
happens  to  be  a  Hindu,  whether  they  are 
nearly  or  distantly  related  or  not  related 
at  all,  and  "thereby  clothe  himself  with 
power  to  sell  it.'1  It  is,  however,  correct 
to  say  that  it  is  the  existence  of  the 
joint  family  system  among  Hindus  that 
makes  all  the  alienations  under  considera- 
tion valid  though  they  would  be  invalid  if 
the  minors  had  not  been  Hindus,  because 
they  were  made  not  by  their  iru,'i!'ii,i:,-*  but 
by  the  managers  of  their  /.ruliv  -.  The 
fundamental  mistake  made  in  respect  of 
Hunooman  Persand  pan  Jay's  ca.se  (3)  is 
in  assuming  that  it  defines  the  powers  of 
a  guardian  of  a  Hindu  minor.  It  deals 
throughout  with  the  powers  of  a  manager, 
and  the  word  guardian  occurs  in  their  Lord- 
ships' judgment  only  four  times,  twice  in 
quotations  from  the  judgment  of  the 
Sadar  Diwani  Adalat,  .once  in  a  quotation 
from  the  plaint  and  once  in  their  Lordships1 
summing  up  of  their  conclusions.  In  the  last 
place  the  word  may  have  been  used  because 
it  had  been  used  all  through  the  case  in  the 
Courts  in  India  or,  if  I  may  suggest  it 
without  disrespect,  by  a  slip. 

If  there  is  any  statement  of  the  rule  of 
Hindu  Law  as  to  who  is  entitled  of  right  to 
be  the  manager  of  a  joint  Hindu  family,  I 
have  been  unable  to  find  it,  but  1  take  it 
that  any  adult  member  of  the  family,  male 
or  female,  is  so  entitled.  If  that  is  correct 
the  person  who  actually  executed  the  trans- 
fer in  the  present  case,  and  indeed  iin  each 
of  the  five  other  cases  mentioned  except  that 
of  19L4  decided  by  Stanyon,  A.  J.  (J.,  was 
the  manager  of  the  family  de  ]  u  re  as  well 
as  dt  facto.  If,  as  seems  to  have  been  assum- 
ed only  for  the  purposes  of  the  argument 
iu  Hunoomanpersaud  Panday's  <m-e  (3)  a 
female  cannot  as  of  right  be  such  a  manager, 
even  the  mother  of  the  only  other  member 
of  the  family  who  is  a  minor,  then  in  this, 
as  in  all  the  other  cases,  the  transfer  was 
valid  because  it  was  made  by  the  person 
who  was  the  actual  manager  at.  the  time, 
whether  that  person  had  a  iikrht  to  be 
manager  or  not,  and  it  was  for  the  benefit 
of  the  estate  and  necessary  for  its  preserva- 
tion. 

The  answer  I  would  give  to  the  Reference 
i&,  therefore,  that  the  Mile  in  this  case  by  the 


[91 1.  0,  19263 

Hindu  widow  who  was  managing  the  estate 
of  her  minor  son  and  step-son  of  a  part  of 
the  immoveable  property  belonging  to  the 
estate  for  necessary  purposes  is  valid  and 
binding  on  her  step-son. 

Flndlay,  Offg.  J.  C.— (September  5, 
1925).— I  nave  had  the  advantage  of  perusing 
and  considering  the  opinion  recorded  by 
Hallifax,  A.  J.  C.  and  I  concour  therein. 

Kotval,  A.  J.  C.— (September  5,  102  J). 
— I  concur. 

By  the  Court,— As  stated  in  the  opin- 
ions separately  recorded  our  answer  to  the 
question  referred  to  us  is  that  the  alienation 
is  valid  and  binding  on  the  step-son  of  the 
widow  who  made  it. 

JUDGMENT. 

Kotval,  A.  J.  C.— (September  21,  1925). 
— Ganesh's  case  alone  was  pressed  and  the 
only  point  argued  at  the  hearing  was  the 
one  referred  to  the  Full  Bench.  That  point 
is  decided  against  the  appellants.  Con- 
sequently the  appeal  fails  and  is  dismissed 
with  costs. 

N  H.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1635  OF  1922. 

August  24,  1925. 

Present  /—Mr.  Justice  Phillips. 

PAZHAN1ANDY  TARAKAN—  PLAINTIFF 

—  APPKLLAJST 


MURUKAPPA  TARAKAN  AND  OTHBRS— 
DEFENDANTS   -RESPONDENTS. 

Trusts  Act  (II  of  /$&?),  s  88  -Tritbt,  acceptance  of  — 
Repudiation  by  trustee 

A  person  who  accepts  a  trust  and  acts  upon  it  is 
estopped  from  jiftci  wards  disputing  it  find  cannot 
brin&  a  suit  in  Ins  peiHoiml  capacity  m  derogation  of 
the  trust  [p  123,  col  I 

Nor  can  h"  in  such  a  suit  claim  to  recoup  himself 
what  ho  has  spent  for  the  benefit  of  the  trust  [p.  125, 
col.  2] 

Muniswami  Chetty  v  Marutharr.mal,  1  Ind  Gas  170, 
20  M  L.  J.  C87  at  p  698;  (liUO)  M  W.  N  233,  8  M  L. 
T.  124;  34  M.  211  and  Srimvasa  Moorthy  v  Venkata- 
varada  lyengar,  11  Ind  Gas  417,  34  M  257,  15  C.  W. 
N.  741,  8'  A  h  J  774,  13  Bom  L  K.  520,  (1911)  2  M 
W.  N  375,  14  G  L.  J  G4,  21  AI  L  ,1.  609,  10  M  L.  T 
263,  38  I.  A.  129  (P.  C  ),  referred  to. 

Second  appeal  against  a  decree  of  the 
Couit  nf  tl.e  District  Court,  South  Malabar, 
in  A,  S,  No.  C52  of  1921,  preferred  against 


L  0. 1926] 


KALENTHKR  AMMAL  V.   MA  MI. 


125 


that  of  the  Court  of  the  Additional  Dis- 
trict Munsif,  Palghat,  in  0.  S.  No.  415  of 
1920. 

Mr.  P,  S.  Naryanas'wamy   Iyer,    for  the 
Appellant 

Mr.  K.  Bhashyam  lyengar,  for  the  lle- 
spondent. 

JUDGMEN  T.— In  this  case  the  plaintiff 
and  his  family  obtained  a  saswatam  lease 
of  certain  piop^rty  which  was  dedicated 
in  trust.  The  plaintiff  was  appointed  the 
managing  trustee  and  in  pursuance  of  that 
appointment,  he  gave  notice  to  the  peison 
in  possession  of  the  property  to  deliver  it 
up.  The  title  of  plaintiffs  transferor  was 
disputed  and  subsequently  plaintiff  pur- 
chased the  safiwatam  right  from  the  rival 
ycnwii  in  his  own  name.  He  now  sues  for 
damages  for  trespass  and  an  injunction.  The 
lower  Appellate  Court  dismissed  his  suit  on 
the  ground  that  unders  #8  of  the  Trusts  Act, 
plaintiff  was  bound  to  hold  the  property  on 
Lehalf  of  the  trust  and  could  not,  therefore, 
bring  a  suit  in  his  personal  capacity  in 
dr!  iiM'h  1 1  of  the  trust. 

The  n'rst  argument  put  forward  in  appeal 
is   that  inasmuch  as  the  plaintiff   did  not 
obtain  actual    physical     possession  of    the 
property,     section  88  does  not  apply.    In 
s.  88  there  is  no  recital  as  to  the  possession 
of  the  property  and  in  the   cases  relied  on 
by  the     appellant,    Muniswami   Chetty    v. 
Maruthammal  (1)  and  Srinivasa  Moorthy  v. 
Venkatavarada  lyengar  (2),  there  is   really 
nothing    to     support  this    contention.    In 
fact  in  Muniswami  Chetey  v.  Maruthammal 
(1)  it  was  held  that  "If  an  executor  accepts 
the   office  and   acts    as  executor  'with  full 
knowledge  of  all  the  circumstances  bear- 
ing on  his  right,1  ...         ....    he  is 

estopped  from  subsequently  repudiating 
the  Will."  Here  the  plaintiff  accepted  the 
trust  arid  acted  upon  it  and  consequently 
he  is  now  estopped  from  disputing  the 
trust. 

The  next  point  put  forward  is  that  the 
plaintiff  is  entitled  to  be  re-imbursed  out  of 
the  trust  the  money  which  he  paid  out  of  his 
own  pocket  and  that,  therefore,  until  that  is 
done  the  property  is  his  own.  This  is,  no 
doubt,  true  and  would  be  applicable  in  a  case 
where  the  beneficiaries  sought  to  take  the 

(1)  7  Ind.  Gas.  176;   20  M.  L.  J.  C87   at  p.  698;  (1910) 
M.  W.  N.  233,  8  M.  L  T.  124;  34  M.  211. 

(2)  II  Ind.    Car  447,  34  M.  257,    15  C.  W.  N.  741;  8 
A.  L.  J.  774;  13  Bom.  L,  R.  520;  (1911)  2  M.  W.  N.  375, 
140.  L.J.64;    21  M.  L.  J.  669,    10  M,  L.  T.  263;   38  L 
A,  129  (J?,  0,), 


possession  out  of  the  plaintiff's  hands,  but 
in  the  present  case  this  is  not  even  a  suit 
against  the  beneficiaries  but  a  suit  against 
a  co-trustee  and  when  s.  88  lays  dowxi 
that  the  plaintiff  must  hold  this  property 
for  the  benefit  of  the  trust,  I  do  not  think 
that  any  Court  would  allow  him  to  sue  in 
his  own  capacity  as  being  solely  entitled 
to  the  property.  If  he  does  sue  in  such 
capacity  he  is,  in  effect,  committing  a  breach 
of  trust.  Plaintiff  is  admittedly  in  posses- 
sion of  the  trust  pioperty  and  can  out  of 
it  recoup  himself  what  he  has  spent  for  the 
benefit  of  the  trust.  Consequently  I  think 
that  the  lower  Appellate  Court  is  quite  right 
in  dismissing  his  suit.  The  second  appeal 
is  dismissed  writh  costs. 


Appeal  dismissed 


RANGOON  HIGH  COURT. 

CIVIL  MISCELLANEOUS  APPLICATION 
No.  y3  OF 
April  22, 
Present: — Mr.  Justice  Rutlcdgo  and 

Mr.  Justice  Heald. 

KALENTHER  AMMAL— APPLICANT 

versus 

MA   MI   AND   ANOTHER — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1003),  0  7,  r  10, 
0  XLV— Remand  by  Jhgh  Court—  Appeal  to  Privy 
Council — -Addition  of  parties-  Power  of  Couit 

A  suit  was  dismissed  by  the  District  Court  but  -wag 
remanded  by  the  High  Court  on  appeal  Defendants 
apj.  ied  fur  and  obtained  leave  to  appeal  to  the  Privy 
Council.  Petitioner  then  applied  to  the  High  Court 
to  be  added  as  a  defendant  in  the  suit 

Held,  (I)  that  the  High  Court  having  passed  a  final 
order  in  the  case  remanding  the  ease  to  the  District 
Court,  was  functus  ojjicio  and  could  not,  therefore, 
make  any  order  adding  parties  to  the  case,  [p.  126, 
col  l.J 

(2)  that  as  regards  the  appeal  to    the  Privy  Council 
the  High  Court  had  no   powers  beyond  those  given, 
in  O.    XLV  of    the  C.  P.   C.,  and  that    theio  was,  in 
that  older,  no  power  to  add  parties;     [ibid.] 

(3)  that  the   District   Court  had  seizin   of  the  case 
as  a  result  of  the  remand  by  the  High  Court  and  had, 
therefore,  power  to  add  parties,  [ibid.] 

Mr.  Patel,  for  the  Applicant. 

Mr.  Kalyanwala,  for  the  Respondents, 


RAMPAL  SINGH  v.  KAJRANG  SINGH. 


JUDGMENT,— In  Suit  No.  8  of  1922 
of  the  District  Court  of  Pegu  Kalenther 
Ammal,  as  widow  of  one  Sheik  Moideen, 
sued  for  administration  of  Sheik  Moideen's 
estate  by  the  Court,  and  joined  as  defend- 
ants Ma  Mi,  who  also  claimed  to  be  a 
widow  of  Sheik  Moideen's,  and  Mahomed 
Eusoof,  who  claimed  to  be  his  son  by  an- 
other wife  Ma  Kin. 


[42I..O.  1926J 


ed   with  costs— Advocate's    fee  to    be  two 
gold  mohurs. 

z-  K.  Application  dismissed. 


The  District  Court  found  that  Kalenther 
Ammal  had  been  divorced  by  Sheik  Moi- 
deen, and,  holding  on  that  ground  that  she 
had  no  right  to  sue,  dismissed  her  suit. 

She  appealed  to  this  Courtt  which  found 
that  she  had  not  been  divorced,  and  re- 
manded the  case  to  the  District  Court  for 
disposal  on  the  merits. 

Ma  Mi  and  Mahomed  Kusoof  then  applied 
to  this  Court  for  leave  to  appeal  lo  the 
Privy  Council,  and  leave  has  been  granted. 

Now  the  present  petitioner  Halhna,  who 
claims  to  be  a  pr~-.  H  .-r1  '  ••  of  Sheik 
Moideen,  her  mother  JJoouiuia  Having  been 
a  daughter  of  his  by  still  another  wife 
Jooma  Bibi,  claims  in  this  Court  to  be 
added  as  a  defendant  in  the  suit. 

She  applied  in  the  District  Court  after 
the  suit  was  remanded  by  this  Court,  but, 
as  the  records  were  in  this  Court  in  con- 
nection "with  the  appeal  to  the  Privy  Coun- 
cil, no  orders  were  passed  on  her  applica- 
tion. 

It  seems  clear  that  this  Court  has  no 
power  either  in  the  proceedings  in  Appeal 
No.  74  of  1923,  or  in  the  proceedings  on 
the  application  for  permission  to  appeal  to 
the  Privy  Council  to  add  petitioner  as  a 
defendant  in  the  suit. 

So  far  as  the  appeal  to  this  Court  is 
concerned,  this  Court,  having  passed  a  final 
order  remanding  the  case  to  the  District 
Court,  is  functus  officio. 

So  far  as  the  appeal  to  the  Privy  Council 
is  concerned,  this  Court  has  no  powers  be- 
yond those  given  in  O.  XLV,  and  there  is 
in  that  Order  no  power  to  add  parties. 

The  District  Court  has  seizin  of  the  case 
as  a  result  of  the  remand  by  this  Court, 
which  remand  is  still  effective,  although 
proceedings  in  the  suit  have,  by  consent 
of  the  parties,  been  stayed,  and  the  Dis- 
trict Court  has  power  to  add  parties. 

Petitioner  should,  therefore,  renew  her 
application  to  that  Court. 

The  application  to  this  Court  isdismies- 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  415  OF  1924. 

November  20,  1925. 
Present :— Mr.  Justice  Aahworth  and 

Mr.  Justice  Raza, 
RAMPAL  SINGH— DEFENDANT— APPELLANT 

versus 

RAJ  RANG  SINGH— PLAINTIFF— 
RESPONDENT. 

Custom,  essentials  of --Family  custom—Modern 
instances — Inference,  of  custom. 

Per  Raza,  J  —If  a  party  relies  upon  the  special 
custom  of  a  family  to  take  the  succession  out  of  the 
ordinary  Law,  such  custom  must  be  proved  to  be 
ano  10 nt,  continuous,  certain  and  reasonable  and, 
beiritf  m  derogation  of  the  general  rule  of  law,  must 
be  construed  strictly  A"  custom  must  be  satis- 
factorily proved  by  evidence  of  particular  instances 
so  numerous  as  to  justify  the  Court  in  iinding  111 
favour  of  the  custom  [p  129,  col  l.J 

When  the  custom  is  proved  to  exist  it  supersedes  the 
general  law  winch  however  still  regulates  all  outside 
the  custom,  \ibid  ] 

Ram  Nandnn  Singh  \  Janki  Koer,  29  C.  828-  29  I 
A  178,  7  0  W  N  57-  4  Bom  L.  R.  664,  8  Sar  '  P  G1" 
J.  .351  (P  0  ),  relied  on 

Per  Ashworth,  J. — A  custom  must  be  unequivocally 
stated  and  proved  but  it  does  not  follow  that  it 
cannot  be  proved  by  inference  Inference  is  one  of 
the  methods  of  proof  and  in  the  case  of  custom  there 
is  no  reason  to  reject  a  clearly  logical  inference 
against  which  no  consideration  prevails,  fp.  131,  cols.  1 
&  2.] 

Per  Ra£a,  J.  (Ashworth,  J  ,  dissenting)  — One  instance 
or  even  four  modern  instances  are  not  sufficient  to 
prove  a  family  custom,  [p  129,  col.  1  ] 

Durqa  Charan  Mahto  v  Raghunath  Mahto,  20  Ind 
Cas  810,  18  C.  W.  N  55,  18  C.  L.  J.  559,  referred  to.' 
The  existence  of  a  custom  of  the  brothers  and 
nephews  of  a  deceased  Hindu  succeeding  together 
would  not  lead  to  a  necessary  inference  that  a  custom 
existed  to  this  effect  also  on  the  death  of  a  childless 
widow  [ibid  ] 

Appeal  from  a  decree  of  the  Additional 
Sub- Judge,  Sultanpur,  dated  the  12th  July 
1921,  confirming  that  of  the  Munsif,  Sultan- 
pur,  dated  the  25th  of  September  1923. 
Mr.  Zahur  Ahmad,  for  the  Appellant. 
Mr.  Naimullah  for  Mr.  Naimatullah,  for 
the  Respondent. 

JUDGMENT, 

Raza,  J.— (November  J7,  1925).— This  ia 
a  defendant's  appeal  arising  out  of  a  suit  for 
possession  of  certain  zemindari  shares  in 
Mahal  Utri  Pargana  Miranpur,  District 
Sultanpur.  The  relative  position  of  the 
parties  will  appear  from  the  following 
pedigree ;— • 


I.  0.  1926] 


RAMPAL  SINGH  V,  RAJRANtf  SINGH. 


127 


KALYAN  SHAH 

1 
Faqir  Shah 

1 

x 

p  Singh 

( 

Kaim  Singh                           Oirdhar 
Bodhai 

1 
Singh 

Singh 

I 
Purai 

ingh 

i 

imal 

i 

Qandharaj 

Singh 

f 

~    I 
jingh,        Gaiyan    Dili  S 
')                 Singh 

Darshan  Singh 
1 
Rampal  Singh, 
(defendant  No.  7) 

(                                 }                Dhaunkal  6 
Suphal  Singh,     Kunjal  Singh         (childless 
(childless) 

Nidhan  Singh,                Paroti  Singh, 
(childless)                       (childless). 

{ 

Mansa  Singh,                                          Ratipal  Singh, 
(childless)                                                  (childless; 
—  Mvsammat  Sartaj  Kuar, 
(widow). 

(                              \                   \ 
Jahar  Sinph,        Sobai  Singh    Achha 
(childless)                     j 
Sinner  Singh, 
(childless) 

i                              \ 
1  Singh            Sarnam  Singh            Bhnjan 

f 
Dhamo  vSingli, 
(childless) 

Bandhu  Singh, 

(childless) 

f 

"/I  . 

(childless).  "  (childless)"   '    isnri  smgh        Hulas  Singh,  Ajodhlya 

---•Alusamma-t  Jarao  Kucr,  ;  (childless )  Singh 

Ovidow).  Bhawani  Dm  (childless.) 

Singh,  (childless) 
—  Musammat  Jitaoo 
Kuer,  (widow) 


SambhaljSingh, 
(childless) 

Efcram  Singh, 
(childless). 

! 
Moti  Singh, 

•i  other  sons  (died 
in  infancy). 

Suohita  Singh,    Hardayal  Singh, 
(childless.)                        | 
Sheo  Daval  Singh, 
(childless). 

Phulman           Harnam 
Singh,                Smgh, 
(childless).        (childless) 

i                          i 
Par  gas        Amina  Singh, 
Singh            ^childless.) 

Ram  Niwaz 
Singh 

i 

i 

i 

Pirthipal  Singh.    Mahip  Singh, 
(childless) 


Saltanat  Singh.    Bindeshwari  Bax,        Gulab  Singh 
(childless).  | 

Bajrang  Singh,  (plaintiff.) 


Sheopal  Singh,            Ohauharaj  Bakhsh 
Mahdeo  Singh 

T.  ..*         '  "  ngh,        Raghubir  Singh    Udai  1 

tfarain  Singh 

_  » 

Singh,  ''defendant       Ram  Hit  Singh,  (defendant 
No.  9.)                                           No  10). 

(                            }                               Jairam 
Ram  Sahai        Ramgopal  Singh, 
Singh            (defendant  No.  5.) 

(defendant                                           f 
No  6.)                                         RamKuber, 
(defendant  N    2  ) 

0 

Dalip  Singh,                 Dhiraj  Singh, 
(childless).                 (defendant  No.  3.) 

Jang  Bahadur,  (childless). 


Inderjit  Singh,  (defendant  Bikarmajit  Singk 

No.  7,)  | 

Ram  Behari  Singh,  (defendant  Ko»  3 ) 


128 


RAMPAL  SINGH  v.  RAJRANG  SING*. 


I.  0. 1926] 


Harpal    Singh,   liar    Bakhsh  Singh   and 

aguHMiriiiiSiiiifli  \\cii1  co  sharers  of  thcsaid 
mahal.  Harpal  Singh  and  Har  Bakhsh  Singh 
both  died  childless.  Harpal  Singh  died 
about  50  years  and  Har  Bakhsh  Singh 
about  40  years  ago.  Though  Harpal  and 
liar  Bakhsh  (brothers)  lived  jointly  but 
mutation  was  effected  in  respect  of  the 
share  of  Harpal  Singh  in  favour  of  his 
widow  Musammat,  Jasaoo  Kunwar.  She 
got  possession  of  Ilarbkhsh  Singh's  share 
also  on  his  death.  On  the  death  of  Bhawani- 
din's  widow  Musammat  Jitaoo,  mutation 
was  made  in  favour  of  Musammat  Jasaoo  in 
respect  of  her  share  also  in  1892.  Thus 
Musammat  Jasaoo  got  possession  of  these 
three  shares  and  held  them  till  her  death. 
She  died  on  the  18th  November  1918.  A 
revenue  partition  was  made  in  1911  and  the 
said  shares  were  allotted  to  a  mahal  called 
after  her  name.  At  the  time  of  the  death 
of  Musammal  Jasaoo  three  persons,  namely, 
Gulab  Singh,  (father  of  the  plaintiff), 
tiaghubir  Singh  (father  of  the  defendants 
Nos.  9  aad  lu)  and  Udit  Narain  Singh 
(father  of  the  defendant  No.  7)  were  the 
nearest  reversioneis  of  Harpal  Singh.  How- 
ever mutation  was  effected  in  favour  of 
the  plaintiff  Bajrang  Singh,  the  defendant 
No.  1.  Rampal  Singh,  and  8  others  per- 
sons, the  defendant  No.  1  getting  19 
shares  and  the  plaintiff  and  others  16 
shares.  The  plaintiff  brought  the  present 
suit  against  the  defendant  No.  1  and  9 
others  claiming  one-third  share. 

The  suit  was  contested  by  the  defendants 
Nos.  1  to  6  principally.  Their  defence 
was  that  they  were  entitled  to  the  property 
by  virtue  of  a  custom  the  particulars  of 
which  will  be  set  out  hereafter.  The  Court 
of  first  instance  decreed  the  plaintiff's 
claim  holding  that  the  custom  set  up  by  the 
contesting  defendants  was  not  satisfactorily 
proved  and  was  not  applicable  to  the 
present  case.  Kampal  Singh  defendant  No.  1 
alone  appealed  but  his  appeal  was  dismissed 
by  the  Subordinate  Judge  of  Sultanpur  on 
the  12th  July  1921.  He  has  now  appealed 
to  this  Court.  The  question  of  custom  is 
the  only  question  to  be  decided  in  this 
case.  The  plaintiff's  father  being  one  of 
the  nearest  reversioners,  the  defendant- ap- 
pellant cannot  come  in  except  on  the  ground 
of  the  custom  set  tip  by  him. 

Musammat  Jasaoo  Kunwar  had  no  right  to 
the  property  which  she  was  holding  in  her 
lifetime.  She  had  no  right  to  succeed  Har 
J3akhsh  iSingh  and  Musammat  Jitaoo 


Kunwar,  However  she  acquired  title  to  the 
property  by  adverse  possession  and  it  is  not 
disputed  that  it  became  her  stridhan  pro- 
perty. The  stridhan  property  of  an  issue- 
less  woman  goes  to  her  husband  and  aftei 
him  to  his  heirs  in  order  of  their  succession 
to  him.  Tinder  the  Mitakshara  Law  the 
right  to  inherit  arises  from  propinquity  that 
is  proximity  of  relationship.  The  appellant 
is  the  relation  of  a  remoter  degree  of 
descent  than  the  plaintiff's  father  and  can- 
not succeed  until  and  unless  the  alleged 
custom  is  made  out. 

The  custom  set  up  by  the  defendant-ap- 
pellant is  as  follows  : — "In  the  community 
(tribe)  and  family  of  Harpal  Singh  and  the 
parties  the  custom  which  prevails  relating  to 
inheritance  is  that  on  the  death  of  a  child- 
less widow  her  as  well  as  her  husband's 
estate  is  inherited  by  the  collaterals  of  her 
husband,  having  regard  to  their  descent 
without  any  consideration  of  their  nearness, 
the  descendants  of  theelde&t  son  receiving 
19  shares  and  those  of  the  remaining  sons 
Ifi  shares."  The  defendant-appellant  alleges 
that  his  ancestor  Girdhar  Shah  was  the 
eldest  son  of  Faqir  Shah.  No  mention  of 
the  alleged  custom  was  made  in  the  wajib- 
nl-arz  (that  is  the  Wajib^ul-arz  of  Utri  Ex. 
A-fl). 

The-  oral  evidence  which  has  been  pro- 
duced by  the  defendant-appellant  to  prove 
that  brothers  and  nephews  succeed  together 
by  custom  is  unreliable  and  insufficient. 
The  learned  Munsif  has  subjected  that  evi- 
dence to  a  careful  analysis.  No  instance  was 
given  in  which  succession  by  Collaterals  also 
was  regulated  by  that  custom.  The  oral 
evidence  has  been  properly  rejected  by  the 
lower  Courts. 

The  appellant's  learned  Counsel  relies  on 
documentary  evidence  principally.  He  has 
referred  to  Exs.  A-l  to  A- 5  and  A-23. 
Exs.  A-l  to  A-5  show  that  the  plaintiff's 
father  Gulab  Singh  had  brought  a  suit 
against  his  uncle  Ram  Niwas  Singh  in  1866 
in  respect  of  the  property  of  his  another 
uncle  Phulman  Singh,  who  had  died  child- 
less. He  was  not  entitled  to  any  share  in  the 
property  of  Phulman  Singh,  under  the 
Hindu  Law,  in  the  presence  of  his  uncle 
Eamniwaz  Singh  but  he  had  claimed 
a  one-third  share  in  that  property.  He  had 
made  no  mention  of  any  custom  in  his 
plaint  but  his  plaint  and  his  statement 
show  that  he  had  taken  the  law  and  the 
custom  both,  to  be  the  same.  Ramniwaz  had 
admitted  the  custom  in  bis  statement  and 


[92  tO. 


&AM0AL  SINGH  V.  RAJRANQ  SINGlf. 


129 


had  contested  the  suit  simply  on  the  ground 
that  a  panchayat  had  already  decided  that 
Gulab  Singh  could  not  take  the  property 
unless  he  accepted  his  liability  to  pay  his 
share  of  the  debt  of  the  deceased.  The 
liability  for  the  debt  along  with  the  pro- 
perty was  the  only  question  to  be  decided 
in  -that  suit.  The  claim  was  eventually 
decreed  without  any  liability  for  the  debt. 
The  principal  custom  which  has  been  set 
up  in  this  case  was  not  set  up  or  recogniz- 
ed in  that  case.  Ramniwaz  had  stated  the 
custom  as  follows  : — 

"If  a  co-shai'er  either  a  brother  or  other 
near  relative  dies  without  any  issue,  then 
his  share  is  divided  among  the  remaining 
living  co-sharers  according  to  their  respec- 
tive shares."  In  my  opinion  the  statement 
of  Ramniwaz  alone  does  not  establish  the 
custom  in  question.  It  should  be  borne  in 
mind  that  if  a  party  relies  upon  the  special 
custom  of  a  family  to  take  the  succession 
out  of  the  ordinary  Hindu  Law,  such  cus- 
tom must  be  proved  to  be  ancient,  conti- 
nuous, certain  and  reasonable  and  being  in 
derogation  of  the  general  rule  of  law,  must 
be  construed  strictly.  A  custom  must  be 
satisfactorily  proved  by  evidence  of  parti- 
cular instances  so  numerous  as  to  justify  the 
Court  in  finding  in  favour  of  the  custom. 
One  instance  or  even  four  modern  instances 
are  not  sufficient  to  prove  a  custom.  [See 
Durga,  Charan Mahto  v.  Kaghunath Mahto(  I),] 
When  the  custom  is  proved  to  exist  itsuper- 
sedes  the  general  law  which  however  still 
regulates  all  outside  the  custom.  [See  72am 
Nundun  Singh  v.  Janki  Koer  (2)  and  Mata 
Din  Sah  v.  Sheikh  Ahmad  Ali  (3).]  In  the 
first  place  the  statement  of  Ramniwaz 
alone,  mentioned  above,  does  not  establish 
the  custom  of  brothers  and  nephews  suc- 
ceeding together  and  in  the  second  place 
that  statement  does  not  establish  the  parti- 
cular custom  under  consideration.  I  think 
the  custom  of  brothers  and  nephews  of  a 
deceased  man  succeeding  together  does 
not  lead  to  a  necessary  inference  that  a 
custom  exists  to  this  effect  also  that  on  the 
death  of.  a  childless  widow  her  and  her 
husband's  properties  are  inherited,  accord- 
ing to  their  respective  stocks  by  the  persons 
descondiftg  from  the  same  ancestor  as  her 
husband  but  without  any  regard  to  the 
nearness  and  remoteness  of  the  persons 

(1)  20  Ind.  Cas.  810;  18  C.  W.  N.  55;  18  C.  L.  J.  559* 
(2)i  29  O.  838;  29  I.  A.  178;  7  0.  \V.  N,  57;  4  Bom,  L 
E.  664;  8  Sar,  P.  0.  J.  351  (P.  O.). 
(3)  11  0.  0. 1, 

9 


taking  the  properties.  I  think  the  latter 
custom  is  a  different  custom  and  is  strictly 
to  be  proved.  In  my  opinion  Exs.  Al  to 
A5  do  not  help  the  defendant-appellant  in 
this  case. 

Exhibit  A23  is  a  copy  of  a  judgment  in  a 
suit  between  some  Bajgoti  Tahkurs  of 
Dahyawau,  District  Sultanpur.  It  is  true 
that  following  custom  was  held  to  be 
proved  in  that  case  :— "  If  a  man  dies  with- 
out leaving  a  male  issue  his  relatives, 
namely,  brothers  or  cousins  or  nephews  (son 
of  brother  or  cousin)  and  grandson  (grand- 
son of  a  brother  or  a  cousin;  get  shares  in  the 
property  of  the  deceased  without  regard  to 
nearness  or  remoteness."  However  that 
custom  was  held  to  be  proved  in  that  case 
as  a  family  custom  and  not  as  a  tribal 
custom.  This  is  clear  from  the  judgment 
of  theMunsif  who  decided  that  case.  The 
judgment  shows  clearly  that  no  attempt 
was  made  to  prove  the  custom  as  a  tribal 
custom  in  that  case.  It  appears  that  the 
parties  to  tlie^present  suit  are  also  Bajgoti 
Thakurs,  but  it  is  not  shown  that  they  are 
related  as  members  of  a  family  to  the  pro- 
prietors of  village  Dahyawau.  It  was  held  in 
Lalmanv.  Nand  Lai  (4),  that  wajib-ul-arais 
of  villages  belonging  to  the  same  clan  are 
inadmissible  in  proof  of  a  family  custom 
unless  it  is  shown  that  the  proprietors  of 
these  villages  were  related  as  members  of 
a  family  to  the  plaintiffs.  "There  is  no 
objection  to  a  party  pleading  that  a  custom 
obtains  both  in  a  family  and  in  the  tribe 
to  which  that  family  belongs  but  he  must, 
of  course,  prove  that  the  custom  is  binding 
on  the  family,  whether  he  confines  his 
evidence  and  plea  to  the  family  or  not". 
Parbati  Kuar  v.  Rani  Chandrapal  Kuar  (5). 
In  the  present  case  no  attempt  has  been 
made  to  prove  the  custom  in  question  as  a 
tribal  custom.  The  defendant-appellant 
attempted  to  prove  the  custom  as  a  family 
custom  but  failed  in  his  attempt.  I  do  not 
find  a  smgle  instance  in  which  the  particular 
custom  set  up  in  this  case  was  claimed, 
recognised  or  exercised.  Under  these  cir-* 
cumstances  I  think  the  lower  Courts  were 
perfectly  right  in  holding  that  the  alleged 
custom  was  not  proved  and  the  plaintiffs 
claim  must,  therefore,  be  rejected.  In  my 
opinion  there  is  no  force  in  this  appeal. 

I  would,    therefore,  dismiss  this  appeal 
with  costs. 

'4)  20  Ind.  Cas.  894;  17  O,  C.  1. 
.'5  80,0.  iM  at  p.  100, 


ISO 


SINOH 


Ashworth,  J.—  (November  18,  1925).— 
This  is  a  defendant's  second  appeal.  The 
plaintiff's  claim  was  resisted  by  the  appel- 
lant on  the  ground  of  the  existence  of  a 
certain  custom,  but  both  the  lower  Courts 
have  held  that  he  failed  to  prove  this 
custom.  The  only  question  arising  in  this 
appeal  is  whether  the  lower  Courts  were 
right  in  holding  that  the  custom  did  not 
exist.  The  custom  set  up  may  be  phrased 
as  follows:  — 

"A  right  of  representation  exists  where- 
by collateral  descendants  in  different  degrees 
from  a  common  ancestor  succeed  to  the 
shares  to  which  their  immediate  ancestor 
if  alive  would  succeed." 

There  were  two  alternative  claims  in  res- 
pect of  this  custom.  One  was  that  the 
custom  prevailed  in  the  family.  The  other 
was  that  the  custom  prevailed  in  the  com- 
munity of  Baijgoti  Thakurs  settled  in  the 
Sultanpur  District  to  which  this  family  be- 
longs. 

As  regards  the  family  custom  a  prelimi- 
nary objection  has  been  taken  that  the  de- 
cision of  the  lower  Courts  was  one  of  fact 
which  cannot    be  upset  in   second  appeal. 
The  evidence  relied    upon  to  prove    this 
custom  was  the  record  of  a  certain  case  in 
which  Gulab  Singh,  father  of  the  plaintiff 
Bajrang  Singh  sued  his  uncle  Ramniwaz 
Singh  for  a  share  of  the  property   left  by 
another  uncle    and  was    successful.      The 
plaintiff  in  that  case,  it  was  urged  by  the  pre- 
sent appellant,  had  based  his  claim  on  the 
custom  now  set  up.    The  defendant  in  that 
case  did  not  deny  the  custom  but  defend- 
ed his  suit   on  another  ground.    The  suit 
was  decreed.    These  proceedings  embodied 
in  Exs.  Al  to  A5  were  pleaded  as  a  trans- 
action in  which,  to  use  the  words  of  s,   13 
of  the  Evidence  Act,  the  custom  was  "claim- 
ed and  recognised."    The  Court  of  first  in- 
stance stated  that  "There  was  no  evidence 
to  prove  that  the  father  of  Gulab  Singh 
had  pre-deceased  Phulman  Singh",  i.  e.,  the 
uncle  whose  property  was  in  question  in 
the  suit.    Accordingly  it  held  that  the  case 
was  not  necessarily  evidence  of  the  custom 
set  up.  In  other  words  the  Court  held  that  it 
was  possible  that  Gulab  Singh  was  suing 
for  property  which  had  vested  in  his  father 
before  that  father's  death  and  as  representa- 
tive of  his  father,  in  which  case  there    was 
no  invocation  of  the  custom  now  set  up. 
The  lower  Appellate  Court  also  held  that 
the  claim  was  based  on  the  ordinary  law  of 
(succession  and  not  on  any  custom.    Now  it 


[921.0.1926) 

may  be  that  the  Courts  were  wrong  in  hold 
ing  that  in  that  case  no  custom  was  set  up 
either  expressly  or  by  implication.  It  may 
be  that  the  plaint  showed  that  Gulab 
Singh's  father  had  died  before  the  succes- 
sion in  question  in  that  case  opened  out, 
and  that  for  this  reason  custom  was  alleged 
by  implication.  But  no  question  of  law 
arises  in  second  appeal  In  determining  what 
the  plaint  in  that  case  meant  and  in  decid- 
ing even  wrongly,  that  there  were  no  circum- 
stances which  would  give  a  particular  mean- 
ing to  that  plaint,  the  Courts  were  decid- 
ing questions  of  fact.  We  allow  the  pre- 
liminary objection  that  so  far  as  the  alleg- 
ed family  custom  was  held  not  to  be  proved 
the  decision  of  the  lower  Appellate  Court  is 
not  open  to  appeal. 

It  is  next  urged  that  a  tribal  custom   was 
set  up  and  proved.    It  was  alleged  alter- 
natively to  a  family  custom  in  the  plaint, 
but  no  attempt  seems  to  have  been  made  to 
prove  it.    Exhibit  A23  is  invoked  in  argu- 
ments in  this  appeal.    That  is  a  judgment 
where  the  custom  set  up  was  held  applicable 
io  "the  descendants  of  one  Chitra  Sen."    As 
the    Court  of  first  hearing  has  remarked, 
there  is  no  evidence  to  show  that    the  pre- 
sent family    are  such    descendants.      The 
wayib-ul  arz  of  the  village  says  that  all  the 
Bachgoti  Thakurs  of  the  Sultanpur  District 
are  descended  from    a    common    ancestor 
Barial  Singh  but  it  is  not  suggested  that 
Barial  Singh  was  descendant  of  Chitra  Sen. 
I  have  seen  the  judgment  of  my  learned 
colleague  I  concur  with  it  so  far  as  the 
finding  is  that  the  appeal  should  be  dis- 
missed.   I  think  it,  however,    desirable  to 
express  dissent  in  respect  of  three  matters. 
My    learned     colleague    quotes    the    case 
Durga  Charan  Mahto  v.  Raghunath  Mahto 
(1)  as  an  authority  for  holding  that  a  family 
custom  should  not  be  held  proved  merely 
by  four  modern  instances.  Reference  to  that ' 
decision    shows  that    the  Calcutta    High 
Court  were  dealing  with   a  custom  set  up 
as  a  family  custom    and  referred   to  the 
Privy  Council  c&szCliandikaBakhsh  v.  Muna 
Kunwar  (6)  as  showing  that  their  Lord- 
ships of  the  Privy  Council  had  declined  to 
find  in  favour  of  the  alleged  custom  upon  evi- 
dence  which  consisted  of  four  modern  in-' 
stances.  A  reference,  however,  to  the  decision 
of  their  Lordships  of  the  Privy  Council  will 
show  that  they  were    considering  in  that 
case  not  a  family  custom  but  a  case  of  tribal 
(6)  29 1.  A,  7;  24  A.  273;  6  0.  W.  N,  425;  4    Bom,  L, 
B,  576;  8  8w.P,O.J,  888^,0.). 


[92 1.  0. 1916] 


custom.  It  is  true  that  the  head-note  speaks 
of  a  family  custom  being  set  up  but  the 
custom  that  was  being  set  up  in  that  case 
was  one  said  to  obtain  in  the  tribe  known  in 
Oudh  as  Ahban  Thakurs.  The  evidence  in 
the  case  had  shown  only  four  instances  in 
favour  of  the  tribal  custom  whereas  there 
were  altogether  18  instances  discussed.  I 
cosider  that  this  ruling  of  the  Privy  Coun- 
cil has  no  application  to  a  custom  set  up  as 
a  family  custom. 

Again  I  cannot  agree  with  the  finding 
that  the  existence  (if  proved)  of  a  custom  of 
brothers  and  nephews  of  a  deceased 
man  succeeding  together  would  not  lead  to 
a  necessary  inference  that  a  custom  existed 
to  this  effect  also  on  the  death  of  a  child- 
less widow.  There  is  a  rule  of  Hindu  Law 
which  is  set  put  as  follows  in  s.  196  (1)  of 
Dr.  Gour's  Hindu  Code,  2nd  Edition.— 

"The  stirdhan  of  an  issueless  woman  de- 
volves on  her  husband  if  she  was  married 
to  him  in  the  Brahama  form  which  will  be 
presumed,  and  failing  him  to  his  nearest 
sapindas  in  the  order  of  their  succession  to 
him/; 

It  is  correct  that  a  custom  must  be  un- 
equivocally stated  and  proved,  but  it  does 
not  follow  that  it  cannot  be  proved  by  in- 
ference. It  is  urged  that  the  evidence  only 
justifies  it  being  held  that  the  property  of 
a  propositus  will  go  to  collaterals  in  differ- 
ent degrees  without  any  preference  being 
given  to  nearness,  but  what  is  proved  does 
not  justify  us  in  holding  that  this  will 
apply  in  respect  of  the  property  of  a  child- 
less widow.  Reliance  has  been  placed  on 
the  case  Bijai  Bahadur  Singh  v.  Mathura 
Singh  (7).  This  is  a  judgment  of  a  Single 
Judge  of  the  Judicial  Commissioner's  Court 
of  Oudh,  but  it  follows  the  Privy  Council 
decision  of  Brij  Indar  Bahadur  Singh  v. 
Ranee  Janki  Koer  (S).  In  these  cases  it 
was  held  that  from  a  custom  excluding 
daughters  and  their  issue  from  inheriting 
the  property  of  their  father  it  could  not  be 
inferred  that  they  -were  excluded  from  in- 
heriting the  stridhan  property  of  their 
mother.  There  was  an  obvious  reason  for 
this.  Hindu  Law  generally  favours  the 
claims  of  daughters  in  respect  of  their 
mother's  property.  Here  there  is  no  such 
principle  involved.  I  consider  that  in- 

(7)  68  Ind.  Cae.  555;  9  0.  L    J.  327;  4  U.   P.  L.  R. 
(0.)  66;  (1922)  A.  I  R.  (0.)  278;  25  0.  C.  345. 

(8)  5  I.  A.  1;  1  0.  L.  R'  318;  3  Sar.  P.  G.  J.  763;  Bald. 
148;  3  Suth.  P.  0,  J.  474;  Rafique  &  Jackson's  P.  C, 
No,  48  (P,0,). 


LAL  V.  LORINBt  fcAt.  l3l 

ference  is  one  of  the  methods  of  proof  and 
that  in  the  case  of  a  custom,  there  is  no 
reason  to  reject  a  clearly  logical  inference 
against  which  no  consideration  prevails.  It 
appears  to  me  that  inasmuch  as  the  stridhan 
of  an  issueless  woman  devolves  first  on  her 
husband  and  then  on  his  sapindas  a  custom 
regulating  succession  by  sapindas  to  a 
male's  property  must  also  be  held  to  regu- 
late succession  by  the  sapindas  of  the  hus- 
band to  the  stridhan  property  of  his  widow. 
Lastly  I  do  not  agree  that  Exs,  A-l  to  A-5 
were  not  admissible  as  evidence  of  an 
instance  under  s.  13  of  the  Evidence  Act, 
namely,  as  a  transaction  by  which  the 
custom  in  question  was  claimed  and  recog- 
nised. It  makes  no  difference  that  the 
defendant  contested  the  claim  of  the  plaint- 
iff in  that  case  on  another  ground,  namely, 
that  he  could  not  get  the  property  in  ques- 
tion without  paying  up  the  previous  debt. 
The  claim  was  only  sustainable  if  inheri- 
tance was  governed  by  the  custom  now  set 
up.  It  was  an  easy  answer  to  the  defend- 
ant, in  that  case  that  the  custom  did  not 
exist.  The  fact  that  he  did  not  resist  the 
suit  by  denying  the  plaintiff's  right  in  my 
opinion  makes  this  case  an  instance,  No 
doubt  it  was  only  one  instance  and  it  was 
unnecessary  for  this  Court  in  appeal  to 
consider  it  inasmuch  as  the  finding  in  re- 
spect of  the  family  custom  was  one  of  fact 
and  no  question  of  law  arose. 

By  the  Court.— We  direct  that  the 
appeal  shall  be  dismissed  with  costs  to  the 
respondent. 

N.  H.  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1093  OF  1924. 

January  8,  1925. 
Present : — Mr.  Justice  Harrison. 
MUKAND  LAL — PLAINTIFF— -APPELLANT 

versus 

Musammat  LORINDI  BAI — DEPENDANT 
—RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1008),  s.  11*— 
Execution  of  decree— Attachment—Objection— Quta* 
tion  of  title,  decision  o/— Res  judicata. 

A  plot  of  land  was  attached  in  execution  of  a  decree. 


132 


LAL  V,  L6HINDI  BAI. 


Plaintiff  and  defendant  both  filed  objections  to  the 
attachment  each  alleging  that  he  was  the  owner  of 
the  plot.  The  Court  held  that  the  plot  had  been 
purchased  by  the  defendant  from  the  Municipality  and 
belonged  to  the  defendant.  Plaintiff  subsequently 
purchased  the  plot  from  the  Municipality  and  sued 
the  defendant  to  recover  possession  of  the  plot  • 

Held,  that  although  the  Municipality  was  not  a  party 
to  the  execution  ]•:  •  •»•.  -ii11^-  the  question  of  title  to 
the  plot  was  r-,-1  ;-r/;-V'i  between  the  parties  by 
virtue  of  the  decision  of  the  Executing  Court 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Dera  Ghazi  Khan,  dated  the 
18th  January  1924,  affirming  that  of  the  Sub- 
ordinate Judge,  Fourth  Class,  Dera  Qhazi 
Khan,  dated  the  7th  July  1923. 

Mr.  S.  Mukerji  for  Lala  Bar  GopaJ,forthe 
Appellant. 

Mr.  Mukand  Lai  Puri,  for  the  Respond- 
ent. 

JUDGMENT*— The  facts  of  thin  case 
are  that  Government  made  over  a  certain 
area  to  the  Municipal  Committee  of  Dera 
Ghazi  Khan  with  a  view  to  the  building  of 
a  new  abadi.    Plots  were  sold  by  the  Muni- 
cipal Committee  and  the  land  in  suit  is  the 
frontage  of , one  of  those  plots.    One  Pritam 
Das  obtained  a  decree  against  one  Bosa  and 
after  his  death  in  1916  applied  that  this 
frontage  should  be  sold  in  execution  of  his 
decree.    Objections  were  lodged  by  Musam- 
mat Loriudi  Bai,  the  widow  of  Bosa  and 
defendant    in  this  case,    and  also  by  the 
plaintiff  Mukand  Lai.    Both  contended  that 
the  site  belonged  to  them.    It  was  decided 
by  the  District  Judge  on  the  12th  of  June 
1918  that  Musammat  Lorindi  Bai  had  herself 
purchased  this  site  from  the  Municipality 
and  that  it  could  not,  therefore,  be  attached  or 
sold.  On  the  18th  of  October  1917  the  Muni- 
cipality passed  a  mutation  order  entering 
the  name  of  Musammat  Lorindi  Bai  as  the 
owner  of  this  site    and  on  the  1st  of  Decem- 
ber 1917  granted  permission  to  her  to  build 
upon  it.  In  spite  of  this  fact,  acting  on  very 
peculiar  advice  given  by  the  Government 
Pleader  and  accepted  by  the  Deputy  Com- 
missioner, the  Municipality  while  admitting 
that  the  title  wap  doubtful  and  pointing  out 
the  fact  to  the  plain  tiff  sold  it  to  Mukand  Lai, 
for  Re.  1-8  it  being  clearly  explained  that 
he  took  all  risks  and  would  not  be  com- 
pensated   if  it  were  found    that   he    had 
wasted  his  Re.  1-8.    He  now  brings  this  suit 
and  is  met  by  the  decision  of  the  District 
Judge  in  a  suit,  to  which  he  was  a  party,  to 
the  effect  that  the  defendant  had  acquired  a 
goqd  title  from  the  Municipality.    His  con- 
tention is  that  because  the  Municipality  was 


[9S  I.  0. 1926] 

not  impleaded    in    those  proceedings  the 
decision   does  not    bind    him,     as  vendee 
from  the  Municipality.     Whether  it  binds 
the    Municipality  or   not  it  must  certainly 
binds  him,  in  my  opinion,  audit  operates  as 
res  judtcata.  Knowing  that  this  decision  had 
been  given  he    deliberately  bought  a  bad 
title  and  he  has  only  himself  to  blame.  The 
Deputy    Commissioner's  order    shows  the 
rights  sold  as    being  Government    rights. 
As  a  matter  of  fact  they  were  the  rights  of 
the  Municipality    and    this   Mr.    Mukerji 
admits,  that  is  to  say,  the  plaintiff's  vendor 
and  that  of  Musammat  Lorindi  Bai  were  one 
and  the  same.    In  spite  of  this  fact  he  con- 
tends that  he  is  now  entitled  to  insist  on 
strict  proof  of  the  payment  of  consideration 
by  Musammat  Lorindi  Bai,  althougth  the 
matter  has  been  finally  adjudicated  upon 
as  between  him  and    her  by  the  District 
Judge,  and  it  was  decided  in  that  litigation 
that   Musammat  Lorindi  Bai  had  acquired 
a  clear  title  and  that    the  rights  of    the 
Municipality  had  automatically  become  ex- 
tinct.   Had  he  purchased  the  title  of  some 
person  other  than  the  vendor  to  Musammat 
Lorindi  Bai,  there  might  be  some  force  in 
his   contention  that  he  can  re-agitate  the 
question  as  being  a  different  person  from 
that  person  who  took  part  in  the  previous 
litigation    but  the  vendor  from  whom  he 
has  been  fit  to  purchase,  and  who  behaved 
in  this  peculiar  manner    in  selling  to  him, 
is  the    very  person  whose  right,  title  and 
interest  were  held  in  that  previous  litigation 
to  have  been  transferred  to  and  vested    in 
Musammat  Lorindi  Bai,  and,  therefore,  ex- 
tinguished for  all  time.     As  between  him 
and  her  it  has  been  found  that  her  title  is 
good  and  his  must  be  bad,  and,  it  was  held 
that  his  present  vendor  had  no  subsisting 
title  at  the  time  he  sold. 

1  find  that  it  is  a  clear  case  of  res  judicata 
and  dismiss  the  nppeal  with  costs. 

z.  K.  Appeal  dismissed. 


S.vHAl  MJSTfcl  V.  8ATALI 


PATNA  HIGH  COURT. 

APPEAL  FROM  ORIGINAL  OJRDE*  No,  248 

OP  1923. 
June  13,  1924. 

Present:—  Sir  Dawsoa  Miller,  KTM  Chief 
Justice,  aud  Mr.  Justice  Foster. 
Bibi  WASHIHAN-APPELLANT 

versus 
MIR  NAWAB  ALT— RESPONDENT. 

Religious  Endowments  Act  (XX  of  18<>3),  s,  IS  - 
Order  refusing  leaic  to  aw— Appeal,  whether  lies-  - 
Bengal,  N.  W.  P.  and  Assam  Civil  Cvurts  Act  (XII 
of  1887),  s.  20,  scope  of. 

No  appeal  lies  against  an  order  passed  under  8.  18 
of  the  Religious  Endowments  Act. 

Section  20  of  the  Bengal,  N.  W.  P.  and  Assam  Civil 
Courts  Act  does  not  confer  a  right  of  appeal  from 
every  order  of  the  District  Judge  to  the.  High  Court; 
it  only  determines  the  forum  to  which  an  appeal,  if 
any,  shall  lie  from  decrees  or  oidcrs  of  the  District 
Judge. 

Appeal  from  an  order  of  the  District 
Judge,  Shahabad,  dated  the  20th  July  1923. 

Mr.  Manmatha  Nath  Pal  (with  him  Mr. 
N.  N.  Sen),  for  the  Appellant. 

Mr.  (7.  N.  Muklierjee,  for  Mr.  M.  Yunus, 
for  the  Respondent. 

JUDGMENT. 

Dawson  Miller,  C.  J,— [His  Lord- 
ship after  setting  out  the  facts  of  the  case, 
which  are  not  material  for  the  decision, 
proceeded  :— ]  A  preliminary  objection  has 
been  taken  that  no  appeal  lies  from  an  order 
of  the  learned  District  Judge  under  a,  18, 
Religious  Endowments  Act.  This  objec- 
tion, I  think,  is  sound.  The  Act  itself  which 
creates  the  cause  of  action  does  not  provide 
for  any  appeal  from  the  order  of  the  District 
Judge.  Nor  is  there  anything  in  the  0.  P. 
0.  which  would  indicate  that  any  appeal 
lay.  The  order  of  the  District  Judge  is 
clearly  not  a  decree  and  the  cases  in  which 
an  appeal  lies  from  orders  are  laid  down 
in  ss.  104  and  105  of  the  C.  P.  C.,  the  cases 
are  there  named  in  which  an  appeal  lies 
from  certain  orders  and  an  appeal  lies  from 
no  other  orders.  These  two  sections  coupled 
with  0.  XLI  of  the  Code  show  quite  clearly 
to  my  mind  that  no  appeal  is  permissible 
in  such  a  case.  The  only  contention  put 
forward  by  the  other  side  is  that  under  s.  20 
of  the  Bengal  Civil  Courts  Act  of  1887  it 
is  provided  that  save  as  otherwise  provided 
by  any  enactment  for  the  time  being 
in  force  an  appeal  from  a  decree  or  order 
of  a  District  Judge  or  Additional  District 
Judge  shall  lie  to  the  High  Court.  The 
learned  Vakil  wants  us  to  construe  that 
section  as  if  it  granted  a  right  of  appeal 
from  every  order  of  the  District  Judge  to 


the  High  Court,    This  is  clearly  not  the  ii 
terpretation  of  that  section;  the  only  th 
the  section  is  dealing  with  is  the  form 
to  which  an  appeal,  if  any,  shall  lie  froml 
decrees  or  orders  of  the  District  Judge. 

In  my  opinion  the  preliminary  objection 
is  a  sound  one  and  this  appeal  is  not  per- 
missible. 

The  appeal  is  dismissed  with  costs. 

Foster,  J.— I  agree. 

K.  s.  r>.  Appeal  dismissed. 


PATNA  HIGH  COURT. 

APPEAL  PUOM  APPELLATE  ORDER  No.  213 

OF  1925. 

April  8,  1926. 

Present:— Sir.  Justice  Das  and  Mr. 

Justice  Ross. 

SAHAI  MISTRI—DEo&EE  HOLDER- 
APPELLANT 

versus 
SATALI  DARJI— JUDGMENT-DEBTOR— 

RESPONDENT. 

Construction  of  decree— Executing  Court,  duty  of — 
Reference  to  pleadings  and  judgment. 

Though  an  Executing  Court  cannot  go  behind  the 
decree,  it  ought   to    interpret  the   decree  when    an 
application  for  its  execution  is  presented  before  it,  and 
for  that  purpose,  it  ought  to  refer  to  the  pleadings  in 
the  case  and  to  the  judgment  passed  by  the  Court,   *•*  < 
Appeal  from  a  decisio&.of  the  Subordinate 
Judge,  Gaya,  dated  the  30th  of  May  1925, 
confirming  that  of  the  Munsif,  Gaya,  dated 
the  1 1th  of  February  1925, 
Mr.  Sarju,  Prasad,  for  the  Appellant. 
Mr.  Brijkishore  Prasad,  for  the  Respond- 
ent. 

JUDGMENT.— We  think '  this  case 
mu8v  go  back.  The  learned  Munsif  thought 
that  he  had  nothing  to  do  with  the  mean- 
ing of  the  word  "cfcfca;a."  The  learned 
Subordinate  Judge,  on  appeal,  did  not 
quite  take  that  view,  but  he  proceeded  on 
the  dictionary  meaning  of  the  word 
"cWiaja."  This  is,  in  our  opinion,  erro- 
neous. It  is  quite  true  that  an  Executing 
Court  cannot  go  behind  the  decree;  but 
it  if  well-established  that  that  Court 
ought  to  interpret  the  decree  when  an  ap- 
plication for  execution  is  placed  before  it, 
and,  for  that  purpose,  it  ought  to  refer  to 
the  pleadings  in  the  caae  and  to  the  judg« 


GO^AL  1>.  COLLECTOR 


[9*  i,  C 


ent  passed  by  the  Court.  We  allow  the 
[>peal,  set  aside  the  orders  passed  by  the 
)urts  below  and  remand  the  case  to  the 
Jower  Appellate  Court  for  disposal  accord- 
ing to  law.  Costs  are  reserved  and  will  be 
dealt  with  by  the  learned  Judge  in  the 
Court  below. 
B.  L.  Case  remanded. 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL,  APPEAL  No.  1163  OF  19?3. 

April  22,  192(5. 
Present: — Mr.  Justice  Kanhaiya  Lai  and 

Mr.  Justice  Ashworth. 
GOPAL  AND  OTHERS— DEFENDANTS 
—APPELLANTS 

versus 

TUB  COLLECTOR  OF  ALIGARH— 
PLAINTIFF  AND  CHUNNA  AND  ANOTHER— 

DEFENDANTS — RESPONDENTS. 
Landlord  and  tenant—  Muali,  grant  of— Transfer, 
prohibition  against,  effect  of— Grove— Transfer,  un- 
authorised--Forfeiture —Agra  Tenancy  Act  (II  of 
1901),  88.  150,  J07-— Suit  for  resumption  of  grove — 
Jurisdiction  of  Civil  and  Revenue  Courts. 

Where  land  is  granted  for  planting  a  grove  the 
person  who  plants  the  grove  acquires,  according  to 
the  general  law,  a  transferable  interest  in1  the  land 
and  in  the  absence  of  a  custom  to  the  contrary,  the 
trses  become  his  property.  The  person  who  plants 
wnt  jyove  possesses  all  rights  in  respect  of  his  grove, 
which  are  not  oxd-jiii  <i  L»y  C-..-V  • ,-;.  or  the  incidents  of 
the  tenure,  [p.  ii'IG,  cuib.  1  a.  i'.  j 

Where  the  grant  of  a  muafi  tenure  contains  a  con- 
dition restraining  the  tenure-holder  from  transferring 
his  right  but  there  is  no  Covenant  for  re-entry  or 
forfeiture  on  such  transfer,  and  the  muafidar  plants  a 
grove,  ponstructs  a  well  and  builds  other  con- 
structures  of  a  permanent  character  upon  the  land, 
the  landlord  cannot  claim  to  re-enter  upon  the  land 
or  forfeit  the  tenure  upon  a  transfer  of  the  tenure  by 
the  grantee,  [p.  136,  col,  1.] 

Per  Ashworth,  J.— A  local  custom  supersedes  the 
Statute  or  general  law.  A  local  usage  does  not 
supersede  it  but  is  to  be  read  into  the  contracts  or 
implied  contracts  of  persons  living  in  the  locality  to 
which  the  usage  applies.  While  a  custom  depends  for 
its  validity  on  its  antiquity,  a  usage  depends  for  its 
validity  on  its  notoriety,  [p.  137,  col,  1.1 

A  provision  in  a  grant  against  transfer  would  be 
meaningless  unless  one  were  to  read  into  it  also  a 
provision  that  it  will  involve  forfeiture.  The  terms  of 
a  grant  forbidding  transfer  must,  therefore,  entail 
that  the  right  of  reversion  operates  from  the  date  when, 
possession  is  given  to  a  third  party  under  an  un- 
authomed  transfer,  [ibid  \ 

Sections  150  and  167  of  the  Agra  Tenancy  Act  only 
exclude  the  jurisdiction  of  Civil  Courts  in  cased    of 
resumption  gf  "land11  which  means  land  let  or 


held  for  agricultural  purposes  and  a  grovo  is  not 
such  land.  Therefore,  a  suit  relating  to  the  resump- 
tion of  a  grove  does  not  fall  within  the  purview  of 
those  sections,  [p  137,  col.  2  ] 

Second  appeal  from  a  decree  of  the  Addi- 
tional Subordinate  Judge,  Aligarh,  dated 
the  16th  of  May  1923, 

Mr.  Panna,  Lai,  for  the  Appellants. 

Messrs.  G.  W.  Dillon  and  M.  A.  Aziz,  for 
the  Kespondents, 

JUDGMENT. 

Kanhaiya  Lai,  J.— The  dispute  in 
this  appeal  relates  to  a  piece  of  muafi  land 
occupied  by  a  grove  situated  in  Qasba  Koil, 
close  to  the  town  of  Aligarh.  The  land  was 
originally  granted  by  the  predecessors  of 
the  plaintiff  to  Sirh  Mai,  the  predecessor 
of  the  contesting  defendant,  for  planting  a 
grove,  and  the  question  for  consideration  is 
whether  the  descendants  of  Sirh  Mai  had  a 
right  to  sell  the  grove  to  Ohunna  and  Ram 
Lai,  and  are  liable  to  ejectment  in  conee- 
quence. 

The  allegation  of  the  plaintiff  was  that 
there  was  a  custom  appertaining  to  the 
muafis  granted  by  the  zemindars  by  virtue 
of  which  the  muafi- holders  or  their  descend- 
ants had  no  right  to  transfer  the  muafi  by 
aale.  The  plaintiff  questioned  the  right  of 
the  son  and  grandsons  of  Sirh  Mai  to  trans- 
fer the  grove,  and  he  sued  for  the  cancella- 
tion of  the  sale  and  for  possession  of  the 
grove  by  the  ejectment  of  the  muafidars 
and  their  transferees. 

The  plaintiff  relied  in  support  of  the 
custom  on  the  wajib-ul-arz  prepared  in  1872 
in  which  under  the  heading  referring  to 
"muafis  granted  by  the  zemindar  for  specific 
purposes1*,  it  was  stated  that  so  long  as 
the  muafidar  or  his  descendants  remain- 
ed in  possession,  there  will  be  no  inter- 
ference with  them,  and  the  muafidars  shall 
have  every  right  thereto  except  that  of  a 
transfer  by  sale.  A  list  of  the  plots  and 
groves  then  held  as  muafi  was  also  given 
and  among  those  plots  and  groves  the 
grove  in  dispute  was  mentioned  and  de- 
scribed as  an  old  grove  (qadim  baghicha) 
held  by  Sirh  Mai.  Both  in  the  waijb-ul~ 
arz  and  in  the  khasra  it  was  stated  that 
the  land  had  been  given  for  the  purpose 
of  planting  a  grove,  and  that  fact  is  not 
disputed. 

The  Courts  below  found  that  the  entry 
in  the  wajib-ul-arz  was  sufficient  proof  of 
a  custom  forbidding  the  alienation  and 
that  the  plaintiff  was  entitled  to  a  decree 
lor  possession, 


(H2I.  C  1986] 

The  entry  aforesaid  does  not,  however, 
purport  to  record  any  custom.  There  are 
other  clauses  which  purport  to  record 
customs  then  in  force  in  the  village,  and 
there  are  some  others  which  describe  the 
rights  of  other  classes  of  muafidars  and  of 
ex  proprietors  entitled  to  malikana  rights. 
The  entry  relating  to  the  muafidars  hold- 
ing groves  in  the  village  merely  records 
the  incidents  of  the  tenure,  as  dictated 
by  the  zemindar  or  his  agent  at  the  time, 
and  though,  as  stated  by  their  Lordships 
of  the  Privy  Council  in  Anant  Singh  v. 
Durga  Singh  (1),  there  is  no  class  of  '  evi- 
dence more  likely  to  vary  in  value,  ac- 
cording to  the  circumstances,  than  the 
wajib  ul  arz,  for  entries  at  times  are  made 
therein  connoting  the  views  of  individuals 
as  to  the  practice  thej  would  wish  to 
see  prevailing,  rather  than  the  ascertain- 
ment of  well-established  custom,  it  would 
not  be  unreasonable  to  presume  from  the 
entry  that  the  intention  of  the  grantor 
when  he  gave  the  muafi  land  for  plant- 
ing the  grove  was  that  the  enjoyment 
of  tbe  muafi  land  (as  distinct  from  the 
right  to  the  timber  or  the  fruits  of  the 
grove)  was  to  be  restricted  to  the  grantee 
and  his  descendants  personally,  The  plaint- 
iff does  not,  however,  rely  on  any  such  in- 
cident or  condition  of  the  grant,  in  the 
plaint.  He  does  not  even  assert  that  for- 
feiture or  resumption  was  one  of  the  con- 
ditions of  the  giant  or  incidents  of  the 
custom  Pet  up.  In  fact  in  A  la  Bux  v. 
Radhay  Lnl  (2)  it  was  held  that  a  statement 
in  the  ivajib-ul-arz  by  one  of  the  interested 
parties  that  he  had  power  to  take  away  all 
muafis,  would  nut  be  regarded  as  sufficient 
proof  of  a  custom  of  resumption. 

Where  land  is  granted  for  planting  a 
grove  the  person  who  plants  the  grove 
acquires  according  to  the  general  Uw  a 
transferable  interest  therein,  and  in  the 
absence  of  a  custom  to  the  contrary,  the 
trees  become  his  property.  As  pointed  out 
in  Chokhe  Lai  v.  tichari  Lai  (3),  Lai  Baij- 
nath  Singh  v.  Chandrapal  Singh  (4)  and 


(1)  6  Ind.  Cas,  787;  32  A  363;  14  C.  W.  N.  770;  12  C. 
L.  J.  36;  7  A.  L,  J.  704;  13  O.  C.  163;  37  I   A    191;  12 
Bom.  L.  R.  504;  8  M,  L.  T.  79;  (1910)  M.  W.  N.  327;  20 
M.  L.  J.  604  (P.  0.). 

(2)  30  Ind.  Cas.  805. 

(3)  60  Ind.  Cas.  115;  18  A.  L,    J.    820;  2  U,  P.  L.  R. 
(A.)  292;  42  A.  634. 

(4)  73  Ind.  Caa,  529;  21  A,  L,  J,  d$7;  A,  I.  R,  1923  All 
553, 


>V,  O'WWOkOPAUOAfttt. 


Man  Singh  v.  Madho  Singh  (5),  the 
who  plants  such  a  grove  possesses  all  rightlj 
in  respect  of  his  grove,  which  are  not  ex- 
cluded by  custom,  or  the  incidents  of  tbe 
tenure.  No  custom  is  established  here  and 
no  right  of  forfeiture  or  re-entry  or  resump- 
tion is  shown  to  have  been  reserved. 

The  muafidar  builb  some  structures  over 
the  land,  besides  a  pucca  well  and  boundary 
walls  when  he  planted  the  grove.  The 
grove  was  in  existence  from  before  Ife72, 
and  if  one  of  the  incidents  of  the  tenure 
was  that;  the  muafidar  shall  have  no  right 
to  alienate  his  muafi  land,  but  no  right  of 
re-entry  was  reserved  to  the  plaintiff,  the 
muafi  cannot  be  resumed  and  the  muafi- 
dar or  hia  descendants  cannot  be  ejected, 
though  the  sale  of  the  muafi  rights  can  be 
set  aside.  In  fact  the  wajib-ul  art  states 
that  &  zemindar  shall  not  interfere  so  long 
as  the  muafidar  and  his  descendants  remain 
in  possession.  There  is  no  proof  of  any 
abandonment  by  them  of  their  muafi  lights 
in  favour  of  the  zemindar.  The  vendees 
had  taken  security  fiom  the  vendors  for 
the  refund  of  the  purchase-money  in  case 
their  rights  were  interfered  with.  They 
have  accepted  the  decree  passed  by  the 
Trial  Court  against  them  and  have  nob  fur- 
ther interested  themselves  in  the  case.  The 
vendors  alone  have  appealed  and,  in  the 
absence  of  an  express  covenant  for  re-entry, 
no  right  of  forfeituie  can  be  enforced. 

In  Parameshri  v.  Vittapa  Shanbaga  (6), 
where  a  permanent  lease  was  granted  by  a 
certain  person  to  another  without  any  right 
to  the  latter  to  alienate  the  property,  it  was 
held  that  an  alienation  subsequently  rriade 
by  the  lessee  did  not  entitle  the  plaintiff  to 
terminate  the  permanent  lease  and  re-enter 
upon  the  land.  In  Madar  Saheb  v.  Sanna- 
bawa  Gujranshah  (7)  a  clause  in  a  lease, 
whereby  the  lessee  covenanted  not  to  alie- 
nate, unaccompanied  by  any  clause  for  re- 
entry upon  a  breach  of  the  covenant,  was 
hel$  to  be  merely  a  covenant  and  not  a 
condition,  and  a  suit  brought  by  the  lessor 
for  ejectment  was  dismissed.  la  Netrapal 
Singh  v.  Kalyan  Das  (8)  where  perpetual 
lease  of  a  village  was  granted  to  a  lessee  and 
his  heirs,  containing  a  coverant  against  an 
alienation,  by  the  lessee  but  no  covenant 


(5)  79  Ind.  Cft£.  599;  22  A.  L.  J.  70;  A.  I.  R.  1924  All 
430;  L.  R.  5  A.  34  Kev. 

(6)  26  M  137;  12  M  L.  J.  189. 

(7)  21  B.  19ft;  11  Ind.  Dec  fw  s.)  132. 

V8)  28  A.  4CO,  A.  W,  N,  (1C08)  CO;  0  A,  L,  J,  190. 


QOPM*  U   COLLECTOR  OF 


[92  1.  0, 


ing  to  the  lejseor  a  right  of  re-entry  upon 
JSreacn  of  the  former  covenant,  it  was 
Similarly  held  that  the  suecessore-in-title  of 
the  lessor  could  not  recover  the  property, 
the  subject  of  the  lease,  from  the  alienees 
of  the  suocessors-in-title  of  the  lessee.  In 
Dharani  Kanta  Lahiri  v.  Siba  Sundari  Deli 
(9)  where  a  grant  was  made  to  certain  per- 
Rons  in  succession  without  any  power  of 
alienation,  it  was  held  that  though  the 
alienation  by  one  of  the  grantees,  who  was 
given  a  life-interest,  was  against  the  pro- 
visions of  the  grant  and  was  bad  in  law, 
yet  inasmuch  as  the  breach  of  the 
provisions  did  not  operate  as  a  for- 
feiture, the  plaintiff  was  not  entitled  to 
a  decree  for  khas  possession.  In  Basarat 
All  Khan  v.  Maniiulla  (lO)  where  a  lease 
was  granted  containing  a  covenant  prohibit- 
ing the  digging  of  pits  and  tanks,  or  the 
transfer  of  the  land  in  any  way  without  a 
letter  from  the  lessor  and  no  right  of  re- 
entry was  reserved,  it  was  held  that  an 
assignment  subsequently  made  by  the 
lessee  was  operative,  notwithstanding  the 
covenant. 

What  applies  to  a  lease,  where  no  right 
of  re-entry  is  reserved,  applies  with  greater 
force  to  the  grant  of  a  muafi  tenure,  where 
the  grantee  of  the  muafidar  has  planted  a 
grove,  constructed  a  well,  and  built  other 
structures  of  a  permanent  character  on  the 
faith  of  the  grant  without  any  covenant  for 
re-entry  or  forfeiture.  The  muafidars  still 
reside  in  the  town  in  whic)i  the  muafi  is 
situated  ;  and  there  is  no  finding  tjjat  'they 
have  abandoned  possession.  The  vendees 
alone  seem  to  have  abandoned  their  rights 
under  the  sale-deed. 

The  appeal  ought,  therefore,  to  be  allowed 
and  the  decrees  of  the  Courts  below  modifi- 
ed eofaras  they  award  possession  as  against 
the  defendants-appellants.  The  paitjes  to 
the  appeal  ought  in  the  circumstances  to 
bear  their  own  costs  here  and  in  the  lower 
Appellate  Court. 

Ash  worth,  J.-— This  second  appeal 
arises  out  of  a  suit  brought  by  the  respond- 
ent as  zemindar  against  the  appellants-de- 
fendants, transferees,  and  other  defendants, 
transferors  of  a  ceitain  giove,  for  cancella- 
tion of  the  sale-deed  executed  by  the  former 
in  favour  of  the  latter.  The  suit  was  based 


(9^  35  C.  1069;  80  I,.  J  18S. 

(JO)  2  Jrd.  Os.  416j  £6  C\  745;  10  C.  J  .  J.  49, 


on  the  allegation  thfrt  according  to 
(us.age  or  custom)  recorded  in  the  u'a 
arz  of  1872,  the  defendants  first  party  he!4 
the  grove  on  a  tenure  which  did  not  entitle 
them  to  transfer  it  to  ft  third  party  (de? 
fendants  party  No  2)  and  that  the  sale  en- 
titled the  plaintiff  to  resume  the  grove.  The 
defence  was  that  there  was  no  such  custom 
or  usage,  and  that,  in  any  case,  the  defend* 
ants  were  entitled  to  compensation,  in  the 
event  of  the  suit  being  decreed,  for  a  well, 
buildings  and  improvements.  Both  the 
lower  Courts  decreed  the  suit  but  allowed 
the  defendants  to  remove  the  materials  of 
constructions  from  the  grove.  The  firsj 
Court  hejd  that  the  wajib-ul-arz  was  decisive 
as  evidence  of  the  tenure  of  the  defendants 
first  party,  and  that  this  tenure  did  not 
allow  sale.  The  lower  Appellate  Court  held 
that  the  general  law  prevailing  in  these 
Provinces  was  that  a  grove  holder  could  not 
transfer,  and  that  this  general  law  was 
given  effect  to  in  the  wajib-ularz.  It  held 
that  the  defendants  had  failed  to  rebut  the 
presumption  arising  from  the  general  law. 

In  this  appeal  it  is  contended    that  the 
prevailing  law  in  these  Provinces  is   that  a 
grove-holder  may  transfer  his  rights  ;  and 
reliance  is  placed  in  Lai  Baijnath  Singh 
v.  Chandrapal  Singh  (4)  and  other  decisions 
of  this  Court.    It  is  also  maintained   that 
the  passage  in  the  wajib-ul-arz  relied  upon 
by  the  plaintiff  does  not  prove  any  custom, 
usage  or  tenure  binding  on  the  defendants. 
It  may  be  conceded  that  there  is  authority 
for  holding  that   a  grove-holder   can  sell 
under  the  provisions  of  the  Tenancy  Act 
unless  he  is  precluded  by  custom,  usage  or 
contract.    The  plaintiff  relies  upon  para.   19 
of  the   wajib-ul-arz  of  1872  which  is  headed 
by  the  title  "statement  of  muafi  granted  by 
the   zemindar    for    special   purposes."    In 
this  paragraph    this  particular    grove   is 
specified  as    granted    without  a    right  of 
transfer    by  the     grantee.    It     has    been 
clearly  established  by  respondent's  Counsel 
that  it  was  the  duty  of  the  Settlement  Officer 
in  1872  to  "ascertain  and  record  the  fullest 
possible  information  in  regard   to  landed 
tenures,  rights,  interests  and  privileges  of 
the  various  classes  of  the  agricultural  com- 
munity" and  it  was  provided  that  "for  this 
purpose  the    proceedings  should  embrace 
the  formation  of  as  accurate  a  record  as 
possible  of  all  local  usages  connected  with 
landed    tenures*'.    This  was  provided    in 
Regulation  VII  of  J822  which  was  not  abro- 
gated in  this  -respect  by  ^Regulation  IX  of 


f«S  I.  0.  1928J 

1833,  the  last  Regulation  precedio*  th<a 
Settlement  of  1872.  I  construe  this  to 
m*an  that  it  was  a  duty  of  the  Settlement 
Officer  to  (a)  record  local  customs  and  (fc) 
local  usage.  The  paragraph  is  not  a  record 
of  custom,  because  it  does  not  purport  to  be 
this,  but  it  may  be  construed  as  a  record  of 
local  usage  applicable,  at  any  rate,  to  the 
holdings  mentioned  specifically.  Now  a 
local  custom  supersedes  the  Statute  or  gene- 
ral law.  A  local  usage  does  not  supersede 
it,  but  is  to  be  read  into  the  contracts,  or 
implied  contracts  of  persons  living  in  the 
locality  to  which  the  usage  applies.  While 
a  custom  depends  for  its  validity  on 
its  antiquity,  a  usage  depends  for  its 
validity  on  its  notoriety.  The  Settle- 
ment Officers  were  enjoined  not  only  to 
record  customs  but  usages.  Regarding 
para.  16  as  a  record  of  local  usage,  it  would 
be  good  evidence  and,  if  accepted  as  suffi- 
cient evidence,  would  be  binding  not  only 
on  the  zemindars  who  signed  the  wajib-ul- 
arz  but  on  the  grantees.  The  plaint  can- 
not be  construed  as  excluding  reliance 
on  "usage"  as  distinguished  from  custom.  I, 
therefore,  hold  that  the  lower  Courts  were 
right  in  finding  that  the  defendants  first 
party  were  not  entitled  to  sell  the  grove. 

The  next  question  is  what  is  the  result 
of  their  having  done  so     It  has  been  argued 
that  the  wajib-ul-arz  does  not  specify  for- 
feiture as  a  result  of  a  pale,  and  that,  there- 
fore, there  is   no  proof  of  liability    upon 
defendants  to  forfeiture.    But  the  provision 
against     transfer   would    be    meaningless 
unless  we  read  into  it  also  a  provision  that 
it  will  involve  forfeiture.  A  liability  implies 
a  right  and  a  right  a  remedy.    There  being 
no  rent  on  the  plot  the    zemindar  would 
have  no  remedy.    If    there   is  a  rent  his 
remedy    would  have    been    to  ignore  the 
transferee  and    hold    the    transferor  still 
liable.    Apart  from  this  it  is  clear  that  the 
transferor  has    given   up  possession.    He 
has  also  given  up  his  claim  to  title  by  the 
very  fact  of  executing  the   sale-deed.    In 
the  case  of  abandonment  the   grove  would 
revert  to  the  zemindar,  and  the  conduct  of 
the  transferor   must  amount  to  abandon- 
ment.   He  cannot  claim  to  continue  posses- 
sion through  his  transferee  because  he  can 
take  no  benefit  from  his  unlawful  aliena- 
tion.   Reference  may  also  be  made  to  s,  154 
(c)  of  the  Agra  Tenancy  Act  (U.  P.  Act  II 
of  1901)    which  enacts   that    a    rent-free 
grant  is  forfeited  on  breach  of  a  condition, 


OOPAL  V,  COLLECTOR  OP  AT,I3ABH, 


^  isr 

Whirt  is  $n*4ted  as  a  rule  of  law  in  the^caae 
of  agricultural  land  granted  rent- free  ia^ 
equitable  in  the  case   of  non- agricultural 
land  so  granted. 

The  provisions  of  law  applying  i  _ 
case  of  leases,  which  forbid  an  unlawful 
transfer  .operating  as  forfeiture,  except 
where  there  is  a  contract  or  custom  or 
usage  providing  for  this,  are  not  applicable 
to  rent-free  grants.  The  terms  of  a  grast 
forbidding  transfer  must  entail  that  the 
right  of  reversipn  operates,  from  the  date 
when  possession  is  given  to  a  ithird  party 
under  such  unlawful  transfer. 

It  is  further  urged  that  this  being  a  suit 
for  resumption  of  muafi,  should  have  been 
brought  in  the  Revenue  Court  under  the 
provisions  of  s.  150  read  with  s.  167  of  the 
Tenancy  Act.  It  is  sufficient  to  say  that 
those  sections  only  exclude  the  jurisdiction 
of  Civil  Courts  in  cases  for  the  resumption 
of  land  which  means  land  let  or  held  for 
agricultural  purposes,  and  that  a  grove  of 
the  description  in  suit  is  not  such  {and. 

It  has  been  urged  that  the  plaintiff  was 
bound  to  pay  compensation  for  the  well, 
buildings  and  other  improvements.  No 
rule  of  law  or  equity  has  been  shown  jus- 
tifying such  a  claim. 

For  the  above  reasons,  I  would  dismiss 
this  appeal  with  costs  including  costs  on 
the  higher  scale. 

By  the  Court.— As  we  disagree,  the 
appeal  will  stand  dismissed  with  costs  in- 
cluding costs  on  the  higher  scale  in  this 
Court. 


z.  K. 


Appeal  dismissed. 


LAHORE  HIGH  COURT. 

CIVIL  APPEAL  No,  1702  OF  Iyl8. 

October  22, 1923. 
t;-~Mr.  Justice  Scott-Smith 
and  Mr,  Justice  Fforde. 
MUBLT  DAS— DEFENDANT— APPELLANT 

versus 
ACHUT  DAS— PLAINTIFF— RESPONDENT. 

Evidence  Act  (I  of  187 2} }  *.  86— -Statements  recorded 
in  Native  State— Copies  forwarded  by  Resident — 
Certificate,  whether  necessary —Succession  Certificate 
Act  (VII  of  1889),  s.  Sid— Decision  underlet,  Whether 
operates  auras  .indicate. 

The  mere  fact  that  copies  of  depositions  of  witnesses 
recorded  in  a  Court  in  a  Native  State  are  forwarded 
to  a  British  Court  by  the  Resident  in  due  course  is 
not  equivalent  to  the  certificate  referred  to  in  B.  86  of 
the  Evidence  Act. 

When  a'  certificate  is  required  by  law,  it  cannot  be 
dispensed  with  merely  because  it  can  be  obtained  at 
any  time. 

A  decision  arrived  at  under  the  Succession  Certi- 
ficate Act  upon  a  question  of  right  between  the  parties 
does  not,  by  virtue  of  the  provision  contained  in  s.  25 
of  the  Act,  ^perate  to  bar  the  trial  of  the  same  ques- 
tion in  any  suit  between  the  same  parties. 

First  appeal  from  a  decree  of  the  Senior 
Subordinate  Judge,  Delhi,  dated  the  8th 
May  1918. 

Mr.  Sardha  Ram,  for  the  Appellant, 

Mr.  Dev  Raj  Sawhncy>  for  the  Respond- 
ent. 

JUDGMENT*— The  dispute  in  the  pre- 
sent appeal  relates  to  succession  to  the 
incumbency  of  a  temple  in  Delhi  known  as 
Baghichi  Madho  Das.  The  previous  incum- 
bent Man'  Das  died  on  the  17th  October 
1912.  The  plaintiff-respondent  claimed  to 
eucceelas  thecfceZaof  Man  Da*,  whereas 
the  appellant,  Murli  Das,  who  took  posses- 
sion of  the  temple  after  the  death  of  Man 
Das,  denied  that  the  plaintiff  was  the 
latter's  chela,  and  said  that  he  himself  was 
entitled  to  succeed  as  the  gurbhai  of  Man 
Das.  It  was  not  denied  that  Murli  Da<*  was 
the  gurbhai  of  Man  Das,  but  the  Court 
below  held  that  Achut  Das,  the  plaintiff, 
was  appointed  by  Man  Das  to  be  his  chela 
and  was,  therefore,  entitled  to  succeed.  It 
accordingly  decreed  his  claim,  and  Murli 
Das  appeals.  The  Court  below,  in  addition 
to  deciding  the  point  of  fact  in  favour 
of  the  plaintiff,  held  that  the  question 
whether  he  was  a  chela  of  Man  Das  was 
res  judicata  on  account  of  the  decision  of 
the  Jaipur  Court  in  his  favour  in  a  succes- 
sion certificate  case. 

Upon  the  question  of  fact  the  lower 
Court  has  based  its  decision  upon  (1;  the 
oral  evidence  of  three  Bindraban  witnesses, 
Swami  Gowardhan  Das  Rangacharia,  Mah- 
ant  Murli  Dae  and  Chhote  Lai,  printed  at 


.  ACHUT  DASI<  ff 8  f,  0*  1888} 

,pag$e  28  to  30  of  paper- book  A ;  (2)  copies 
of  the  statements  of  certain  witnesses  who 
were  examined  in  the  succession  certificate 
case  (some  of  these  witnesses  have  died  and 
as"  regards  the  others  the  Court  was  of 
opinion  that  thero  waa  reasonable  ground 
.for  holding  that  they  could  not  be  found 
within  the  meaning  of  s.  33  of  the  Evidence 
Act)  ;  and  (3)  a  document  (Ex.  P,  1) 
which  was  prepared  and  attested  for  the 
purpose  of , meeting  the  claim  of  Murli  Das 
to  a  succession  certificate  in  the  Jaipur 
State.  As  regards  the  copies  of  the  deposi- 
tions of  witnesses  who  were  examined  in 
the  succession  certificate  case  it  was  object- 
ed in  the  lower  Court,  and  the  objection 
has  been  strongly  pressed  before  us,  that 
they  are  not  admissible  in  evidence  as  the 
certificate  of  the  Resident  as  required  by 
s.  86  of  the  Indian  Evidence  Art  has  not 
been  #iven.  In  regard  to  this  the  Court 
says  vpage  52  of  the  judgment)  "As  these 
copies  have  all  been  forwarded  to  this 
Court  by  and  through  him  (Resident),  I, 
therefore,  take  it,  that  he  has  ceitified  by 
his  action  in  the  matter  that  the  manner  in 
which  the  documents  ara  certified  is  the 
manner  commonly  in  use  in  the  Jaipur 
State  for  the  certification  of  copies  of 
judicial  recor  is.  In  any  case  th^  point  is 
a  trifling  one  as  the  ne^e*sary  xseitificate 
imder  s.  88  can  always  be  obtained."  We 
are  unable  to  admit  the  correctness  of  this 
view.  It  appears  that  the  copies  were 
obtained  by  the  plaintiff  himself  in  the 
Jaipur  fltate,  and  that  he  got  them  forward- 
ed by  the  State  officials  along  with  the 
evidence  taken  on  commission.  The  mere 
fact  thafc  the  Resident  forwarded  the 
papers  in  due  course  is  not  equivalent  to 
the  certificate  referred  to  in  s.  fcG.  Further, 
we  are  unable  to  agree  that,  when  a  certi- 
ficate is  required  by  law,  it  can  be  dispens- 
ed with  merely  because  it  can  be  obtained 
at  any  time.  We,  therefore,  propose  to 
exclude  this  evidence  from  our  considera- 
tion. 

[Their  Lordships  after  4ecidingon the  rest 
of  the  evidence  that  the  plaintiff  was  duly 
appointed  chela  by  Man* Das  proceeded:—] 

Having  regard  to  our  decisioti  on  the 
qqestion  of  fact,  it  is  unnecessary  for  us  to 
decide  whether  the  finding  of  the  Jaipur 
Court  in  the  succession  certificate  case 
operates  as  res  judieafa.  The  lower  Court 
said  it  did  so  operate  under  a.  13  of  tht 
C,  P.  0.,  but  it  appears  co  us  to  have  lost 
sight  of  s.  25  of  tho  Succession  Certificate 


1 92  1.  0.  1926J  MUHAMMAD  ABDUL  GAFFUR  V.  MIHAMMAD  SAMSUDDIN. 


139 


Act  of  1889  which  lays  down  that  no 
decision  under  this  Act  upon  any  question 
of  right  between  any  parties  shall  be  held 
to  bar  the  trial  of  the  same  question  in 
any  suit  between  the  same  parties. 

The  appeal  fails  and  is  dismissed  with 
costs. 

z,  K.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  No.  312  OP  1921. 

September  3,  1924. 

Present: — Mr.  Charles  Gordon 

Spencer,  Officiating  Chief  Justice,  and 

Mr.  Justice  Srinivasa  Aiyan gar. 

P.  S.  K.  HAJI  SAIT  MUHAMMAD 

ABDUL  GAFFUR  ROWTHER  AND 

ANOTHER— DEFENDANTS  Nos.  1  AND  2— 

APPELLANTS 

versus 

K.  E  S.  MUHAMMAD  SAMSUDDIN 
ROWTHER  AND  OTHER— DEPENDANTS 

NOS.  3  AND  4  AND  LEGAL   REPRESENTATIVE! 

OF  PLAINTIFF  (DECEASED)— RESPONDENTS. 

Mesne  profit,  suit  for — Calculation  of  profits— 
Burden  of  proof — Mesne  profits,  nature  of — Civil  Pro- 
cedure Code  (Act  V  of  1908),  s  2. 

The  onus  of  proving  what  profits  might,  with  due 
diligence,  have  been  received  in  any  year  lies  upon 
the  party  claiming  mesne  profits,  but  the  onus  of  prov- 
ing what  profits  the  person  in  wrongful  possession 
actually  received  lies  upon  the  person  in  possession, 
[p.  139,  col.  2.] 

Ramakka  v.  Nagesam,  92  Ind  Cas.  133;  47  M.  800; 
48  M.  L.  J.  89,  (1925)  A.  I.  R.  (M  )  145,  relied  on. 

The  best  evidence  of  the  profits  derivable  from  the 
cultivation  of  a  particular  field  in  any  given  year  is 
the  evidence  as  to  the  actual  yield  m  that  year  minus 
the  cost  of  cultivation.  But  such  evidence,  in  order  to 
be  useful,  must  be  exact,  and  it  is  always  open  to  the 
party  out  of  possession  to  falsify  the  accounts  as  to 
the  number  of  measures  of  grain  gathered  at  the  har- 
vest or  the  price  prevailing  when  they  were  sold  or 
the  cost  of  cultivation,  He  may  also  adduce  evidence 
to  prove  that  the  occupant  was  not  diligent  and  might 
have  got  greater  profits  by  proper  diligence,  [ibid  ] 

In  the  absence  of  evidence  as  to  actual  profits,  the 
next  best  evidence  is  evidence  as  to  possible  profits,  of 
which  evidence  as  to  yield  of  •'  ''  "  .  lands 

in  the  year  in  dispute  is  an  exa    A       u    .    J 

The  yield  of  the  suit  lands  in  other  years  is  not 
such  a  good  guide  as  evidence  as  the  yield  of  neigh- 
bouring lands  of  similar  quality  in  the  year  in  dispute 
would  be.  [p.  139,  col.  2;  p.  140,  col.  1.] 

Mesne  profits  are  in  the  nature  of  damages  which 
the  Court  may  mould  according  to  the  justice  of  the 
case,  [p,  141,  col.  1.] 

Grisn  Chunder  Lahiri  v.  Shaahi  Shikhareawar 
27  0.  951  at  p.  967;  27  I.  A.  110;  4  0.  W,  N.  631;   10 
L.  J.  356;  2  Bom.  L.  R.  709;  7  Sar.  P.  0.  J,  687; 
Pec.  (N,  s.)  622  (P,  C.),  relied  on. 


Where  in  a  suit  for  mesne  profits,  the  story  of  the 
defendant  that  he  suffered  a  net  loss  is  incredible  or 
the  loss  is  due  to  lack  of  proper  diligence,  but  the 
plaintiff  fails  to  produce  any  evidence  himself  as  to 
the  actual  profits,  or  the  profits  which  might  have  been 
received  by  the  defendant  with  due  diligence,  the 
suit  must  be  dismissed,  [p.  141,  cols.  1  &  2.] 

Appeal  against  the  decree  of  the  Court  of 
the  Subordinate  Judge,  Tuticorin,  in  E.  P. 
No.  722  of  1920  in  0.  8.  No.  70  of  1916. 

Mr.  C.  V.  Anantakrishna  Aiyar,  for  the 
Appellants. 

Mr.  K .  Rajah  Aiyar,  for  the  Respondents. 
JUDGMENT. 

Spencer,  Offg.  C.  J.— The  onus  of 
proving  what  profits  might,  with  due  dili- 
gence, have  been  received  in  any  year  lies 
upon  the  party  claiming  mesne  profits, 
but  the  onus  of  proving  what  profits  the 
person  in  wrongful  possession  actually 
received  lies  upon  the  person  in  possession. 
Vide,  Ramakka  v.  Nagesam  (1).  The  best 
evidence  of  the  profits  derivable  from  the 
cultivation  of  a  particular  field  in  any  given 
year  is  the  evidence  as  to  the  actual  yield  in 
that  year  minus  the  cost  of  cultivation.  But 
such  evidence  in  order  to  be  useful,  must 
be  exact,  and  it  is  always  open  to  the  party 
out  of  possession  to  falsify  the  accounts  as 
to  the  number  of  measures  of  grain  gather- 
ed at  the  harvest  or  the  price  prevailing 
when  they  were  sold  or  the  cost  of  cultiva- 
tion. He  may  also  adduce  evidence  to  prove 
that  the  occupant  was  not  diligent  and 
might  have  got  greater  profits  by  proper 
diligence.  In  the  absence  of  evidence  as 
to  actual  profits,  the  next  best  evidence  is 
evidence  as  to  possible  profits,  of  which 
evidence  as  to  yield  of  similar  adjoining 
lands  in  the  year  in  dispute  is  an  example. 
In  the  present  case  the  petitioners  did  not 
prove  that  any  particular  items  of  the  de- 
fendants declared  accounts  of  the  yield  of 
lands  kept  under  direct  cultivation  were 
incorrect,  bub  they  relied  on  the  circum- 
stancr  that  for  nine  seasons  there  had  been 
a  net  loss  upon  these  lands  as  itself  so 
highly  improbable  as  to  warrant  the  re- 
jection of  all  the  defendants*  accounts  on 
the  ground  that  no  man  in  his  senses 
would  go  on  cultivating  the  same  land  year 
after  year,  at  a  loss,  although,  every  one  is 
liable  to  losses  in  particular  bad  seasons. 
The  yield  of  the  suit  lands  in  other  years, 
which  the  Subordinate  Judge  has  adopted 
as  the  yield  for  the  years  in  dispute,  is 
not  such  a  good  guide  as  evidence  as  to 

'     (1)  92  Ind.  Ca8. 133;  47  M,  800;  48  M.  L,  J.  89;  (1925) 
A.I.R.(M.)  145, 


140 


MUHAMMAD  ABDUL  GAFFUR  V,  MOHAMMAD  3AMSUDDIN. 


the  yield  of  neighbouring  lands  of  similar 
quality  in  these  years  would  be,  and  is 
open  to  the  objection  that  as  regards  the 
lands  under  lease,  which  are  not  kept 
separate,  the  leases  are  better  evidence  of 
the  profits. 

The  plaintiffs  failed  to  produce  such 
evidence.  The  only  course  for  the  Court 
to  adopt  under  these  circumstances  was  to 
disallow  mesne  profits  upon  the  lands  under 
direct  cultivation  on  account  of  the  absence 
of  any  evidence  as  to  what  they  might 
have  yielded  and  the  incredibility  of  the 
defendants1  story  that  they  did  not  actualy 
yield  any  profit  at  all  and  to  award  mesne 
profits  upon  the  leased  lands  only. 

I,  therefore,  agree  in  the  order  proposed 
to  be  made  in  my  learned  brother's  judg- 
ment. 

Srinivasa  lyengar,  J»— The  only 
question  that  arises  in  this  appeal  relates  to 
the  mode  of  ascertainment  of  mesne  profits. 
The  suit  is  one  for  partition  instituted  by 
the  daughter  now  dead  and  represented 
by  her  legal  representatives  of  a  deceased 
Mahomedan  Against  her  brothers  and 
others  for  her  share  in  their  father's  estate 
and  for  mesne  profits. 

The  proceedings  from  which  this  appeal 
has  been  preferred  relate  to  the  mesne 
profits  of  the  agricultural  lands  from  the 
date  of  the  plaint.  A  Commissioner  was 
appointed  to  take  evidence  and  report  on 
the  amount  of  mesne  profits  and  he,  in  his 
report,  fixed  the  sum  of  Rs.  3,561-14-6  in- 
clusive of  interest  as  the  amount  of  mesne 
profit  payable  by  defendants  Nos.  I  and  2 
to  the  plaintiff's  representatives.  On  ob- 
jection taken  to  the  Commissioner's  report 
by  both  the  parties,  the  matter  came  up 
before  the  Subordinate  Judge  of  Tuticorin 
who  awarded  to  the  plaintiff's  representa- 
tives the  sum  of  Rs.  5,033-1-6  and  interest 
thereon.  Defendants  Nos.  1  and  2,  who 
have  been  found  liable  for  this  latter 
amount,  have  preferred  this  appeal. 

At  the  enquiry  before  the  Commissioner 
the  plaintiff  adduced  no  evidence  what- 
ever. The  defendants,  however,  produced 
several  account  books  and  also  examined  a 
number  of  witnesses.  The  learned  Sub- 
ordinate Judge  has  rejected  entirely  the 
evidence  of  these  account  books  on  the 
ground  that  in  his  opinion  they  had  been 
specially  fabricated  by  the  defendants  with 
a  view  to  defeat  and  defraud  the  plaintiffs. 
•The  two  circumstances  that  he  relies  on 
for  coming  to  that  conclusion  are  :  firstly, 


[92 1.  0.  1926] 

that  the  defendants,  at  any  rate,  after  the 
institution  of  the  suit,  knew  that  they 
would  some  day  be  held  accountable  for 
mesne  profits  and  that  they  had,  therefore, 
a  strong  motive  for  fabricating  false  ac- 
counts; and  secondly,  that  the  accounts 
of  the  khas  or  direct  cultivation  of  certain 
lands  by  the  defendants  shows  that  such 
direct  cultivation  has,  strangely  enough, 
in  almost  every  season  during  the  account- 
ing period,  resulted  not  in  profit  but  con- 
siderable loss.  This  latter  circumstance  is 
undoubtedly  calculated  to  raise  a  great 
deal  of  suspicion.  But  that  alone  even 
coupled  as  it  may  be  with  the  existence 
of  strong  motive  would  not  be  sufficient 
to  discredit  the  account  books  altogether. 
It  must  be  observed  that  the  plaintiffs  have 
not  challenged  the  accounts  in  any  other 
manner  or  sought  to  show  by  an  examina- 
tion of  the  accounts  or  Cross-examination 
of  witnesses  to  bring  out  any  aspects  or 
characteristics  of  the  account  boo'ks  on 
which  it  may  be  found  that  the  account 
books  are  not  genuine.  The  Subordinate 
Judge,  after  rejecting  the  account  books 
entirely,  practically  brushed  aside  the 
whole  of  the  Commissioner's  report  and 
proceeded  to  assess  mesne  profits  himself 
not  on  the  basis  of  any  figures  available 
for  the  period  in  question  but  on  the  basis 
of  figures  found  for  a  previous  period  by  a 
former  Commissioner  appointed  in  the  suit. 

A  considerable  portion  of  the  lands  were 
lands  let  out  to  tenants  even  during  the 
accounting  period  ;  and  the  agreements 
executed  by  the  tenants  in  respect  of  the 
lands  so  leased  out  have  all  been  produced 
and  filed.  In  fact,  so  far  as  the  rents  re- 
covered from  these  lands  are  concerned, 
both  parties  were  clearly  agreed  that  the 
plaintiff's  representatives  would  be  entitled 
to  their  proper  share  in  the  rents  so  realised. 
There  was,  therefore,  no  reason  whatever  for 
the  Subordinate  Judge  to  reject  altogether 
the  available  figures  in  respect  of  the  lands 
leased  out. 

We  are  clearly  of  opinion  that  the  plaint- 
iff's representatives  would  be  entitled  to 
their  seventh  share  of  the  amounts  found 
by  the  Commissioner  as  recovered  from  the 
tenants  in  respect  of  the  lands  leased  out 
during  the  nine  periods  of  cultivation  in 
question.  As  this  account  has  not  been 
separately  made  up,  the  matter  might  'have 
to  be  referred  to  the  lower  Court  for  the 
taking  of  such  accounts  if  the  parties  here 
should  be  unable  to  agree  in 


MtJHAMMAD  AfcDtJL  GAFFUfc  V.  MtTHAMMAD 


[92  I  0.  1926] 

As  regards,  however,  the  lands  which  have 
"been  directly  cultivated  by  the  defandants 
during  the^  period    the  net    result    of  the 
cultivation  in  nearly  all  the  periods  has  been 
shown  to  be  considerable  loss.    The  ques- 
tion arises  in  this  connection,  whether  the 
claimant  for  mesne  profits  in  such  cases  is 
entitled  merely  to  a  share  of  the  actual  pro- 
fits received  or  recovered  by  the  person  in 
possession,    and,    if    not,    what    the    true 
measure  of  mesne  profits  should  be.    The 
point  to  start  from  is  that  mesne  profits  are 
in  the  nature  of  compensation  or  damages. 
Their  Lordships  of  the  Judicial  Committee 
have  observed  in  the  case  of  Grish  Chunder 
Lahiri  v.  Shoshi  Shikhareswar  Roy  (2)  that 
mesne  profits  are  in  the  nature  of  damages 
which  the  Court  may  mould  according  to 
the    justice    of  the  case.    In  the  case    of 
Midnapur  Zamindary  Co.,  Ltd.  v.  Kumar 
Naresh   Narayan   Roy  (3)   their  Lordships 
of  the  Judicial  Committee  refer  to  mesne 
profits  as  compensation  to  the  plaintiff  for 
the   exclusive  use  of  the  land  by  the  other 
p&rty.    The  damages  are  for  the  wrongful 
withholding  of  possession  or  exclusion  from 
possession  of  the  party  entitled  thereto  or 
found  to  be  so. 

The  definition  of  mesne  profits  in  the 
C.  P.  C.,  s.  2,  cl.  12,  itself  contains  a  clear 
indication  as  to  what  the  true  measure  of 
mesne  profits  is.  It  lays  down  that  "mesne 
profits"  of  property  means  those  profits 
which  the  person  in  wrongful  possession  of 
such  property  actually  received  or  might 
with  ordinary  diligence  have  received  there- 
from ;  that  is  to  say,  if,  in  respect  of  any 
particular  property,  the  Court  should  find 
that  ^profits  received  or  recovered  by  the 
party  in  possession  do  not  amount  to  what 
with  ordinary  diligence  he  might  have  re- 
ceived from  the  property,  then  the  true 
measure  is  what  would  have  been  so  receiv- 
ed with  due  diligence,  or,  in  other  \\ords, 
what  the  party  in  possession  actually  re- 
ceives or  recovers  is  the  proper  measure 
except  in  cases  where  it  is  or  can  be  shown 
that  what  is  so  received  or  recovered  falls 
below  what  would  have  been  so  recoverd  or 
received  with  due  diligence. 

As  it  is  conceivable  that  in  respect  of  cer- 

(2)  27  C.  951  at  p.  967;  27  I.  A.  HO;  4  C.  \V.  N.  631; 
10  M.  L.  J.  356;  2  Bom.  L.  R.  709;  7  Sar.  P.  0.  J.  687; 
14  Ind.  Dec.  (N.  s.)  622  (P.  C ). 

(3)  80  Ind.  Gas.  827;  47  M.  L.  J.  23;  (1924)  A.  I  R. 
(P.  C.)  144;  26  Bom.  L,  R.  651;  51  C.  631;  35  M.  L.  T. 
169;  (1924)  M.  W.  N.  723;  29  G.  W.  N.  34;  20  L.  W.  770; 
51 1.  A.  293;  L.  R.  5  A.  (P.  C,)  137;  23  A,  L,  J,  76;  3 

at,  L,  R,  193;  6  P.  L,  T,  750,  ' 


141 


tain  lands  the  party  in  possession  might  have 
cultivated  with  the  diligence  and  with 
regard  to  others  without  such  diligence,  the 
question  can  be  decided  only  with  regard  to 
each  item  of  property. 

Applying  these  principles  to  the  lands 
under  the  direct  or  khas  cultivation  of  the 
defendants  themselves,  we  find  that,  in  all 
the  nine  seasons  to  which  the  accounting 
relates,  the  defendants  are  said  to  have  not 
only  not  recovered  any  profits  but  suffered 
considerable  loss,  the  expenses  being  alleg- 
ed to  be  far  in  excess  of  the  yield.  We 
cannot,  therefore,  treat  this  kind  of  dealing 
by  the  defendants  with  certain  lands  aa 
dealing  with  due  diligence.  The  very  facts 
clearly  show  that  these  lands  have  not  been 
managed  by  the  defendants  with  that 
amount  of  due  diligence,  which  is  indicated 
in  the  definition  of  mesne  profits.  It  is  clear 
that  if  the  lands  had  been  let  out,  they 
might  have  fetched,  if  not  large  rents  as  in 
the  other  cases,  at  least  some  low  rent. 

We  are,  therefore,  left  to  find  out  the 
mesne  profits  in  respect  of  all  the  lands 
under  the  khas  or  direct  cultivation  of  the 
defendants  by  determining  what  rent  or 
income  they  would  or  could  have  fetched  in 
those  seasons  if  they  had  been  let  out  by 
the  defendants  to  strangers.  It  was  in- 
cumbent on  the  plaintiffs  to  adduce  some 
affirmative  evidence  with  regard  to  the 
amounts  for  which  these  lands  might  have 
been  reasonably  let  in  the  particular  seasons 
or  years  by  the  defendants.  See  judg- 
ment in  Ramakka  v.  Nagesana  (I)  in 
this  Court  not  yet  reported.*  No  such 
evidence  whatever  has  been  adduced.  There 
is  some  evidence  to  the  effect  that  all  the 
lands  that  could  be  let  were  leased  out  by 
the  defendants  and  that  only  the  other  lands 
were  cultivated  by  them  directly.  There 
is,  therefore,  no  material  whatever  from 
which  the  amount  of  mesne  profits  in 
respect  of  these  lands  could  be  ascertained. 
There  is  also  no  principle  or  warrant  for 
burdening  the  plaintiff's  representatives 
who  were  admittedly  out  of  possession  with 
any  losses  alleged  to  have  been  sustained  by 
the  defendants  in  the  course  of  their  khas  or 
direct  cultivation  of  lands  which  must  have 
been  carried  on  without  due  diligence. 

The  best  course,  therefore,  in  these  cir- 
cumstances would  be  to  strike  out  from  the 
account  of  mesne  profits  all  the  figures  re- 
lating to  the  kh&$  or  direct  cultivation  of 
some  of  the  lands  by  the  defendants  them- 
'"~*Since  reported  iix  W  Ind,  Gas,  133.— [Ed.] 


142 


MAtWG  PC  TOKfi  V.  MAUK&  PO  Gtl* 


selves  and  take  only  the  lands  leased  out 
to  tenants  to  ascertain  the  share  to  which 
the  plaintiff's  representatives  would  be  en- 
titled to  therein.  It  seems  to  us  that  these 
figures  could  be  easily  worked  out  and  agreed 
to  by  and  between  the  parties  themselves  in 
this  Court  and  in  order  to  see  whether  they 
are  in  a  position  to  do  so,  this  case  will  be 
posted  again  for  orders  after  the  lapse  of 
10  days.  If  the  parties,  however,  are  un- 
able to  agree,  the  case  will  have  to  be  sent 
back  to  the  lower  Court  for  the  figures 
being  worked  out  on  that  basis. 

As  both  parties  have  partially  succeeded 
and  partially  failed,  there  will  be  no  order 
as  to  the  costs  of  this  appeal  and  each  party 
will  pay  and  bear  his  or  their  own  costs  in 
this  Court. 

v.  N.  v.  Decree  modified. 

N.  H, 


RANGOON  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  52  OF  1925. 

June  2,  1925. 
Present:  —  Mr.  Justice  Das. 

PC)  TOKE—  APPELLANT 


'#•  versus 

MAUNG  PO  GYI—  RESPONDENT. 

Pmvinttal  Insolntin/  Act  (V  of  1<J20),  a»t  ?8  (2),  4? 
—Ducftwge,  refusal  of—  Execution  of  decree-  Leave 
of  Court,  whether  necessary. 

Where'  an  Insolvency  Court  refuses  the  discharge 
of  .an  ^olvent  under  a  42  of  the  Provincial  Insol- 
vency Act,  the  proceedings  are  terminated  as  far  as 
the'  Insolvency  Court  is  concerned,  and  the  insolvent  is 
thereafter  liable  to  be  arrested  in  execution  of  any 
decree  without  the  leave  of  the  Court. 

Second  appeal  against  a  decree  of  the 
District  Court,  Bassein,  in  Civil  Miscellane- 
ous Appeal  No.  95  of  1924. 

Mr.  Leong,  for  the  Appellant. 

Mr.  Ray,  for  the  Respondent. 

JUDGMENT.—  In  this  case  one  Maung 
Po  Gyi  presented  an  application  for  ad- 
judication  as  an  insolvent  under  the  Pro- 
vincial Insolvency  Act,  and  he  was  adjudicat- 
ed. His  estate  was  vested  in  the  hands 
of  the  Receiver;  the  Receiver  declared 
a  final  dividend,  and  the  estate  was  wound 
up  as  far  as  the  Court  was  concerned. 
Maung  Po  Gyi  then  applied  for  his  dis- 
charge, but  his  discharge  was  refused  as 
his  estate  was  not  sufficient  to  pay  eight 
annas  in  the  rupee.  One  of  his  creditors, 
Maung  Po  Toke,  then  applied  for  his  arrest 
in  execution  of  the  decree  obtained  by  him 
against  Maung  Po  Gyi,  This  application 


[92 1. 0. 1926] 

was  resisted  by  Mating  Po  Gyi,  on  the 
ground  that  he  was  not  liable  to  be  arrested 
without  the  leave  of  the  Court. 

Mr.  Ray,  who  appears  for  the  insolvent, 
argues  that  under  s.  28  (2)  of  the  Provincial 
Insolvency  Act  the  creditor  cannot  com- 
mence any  legal  proceedings  against  the 
insolvent  without  the  leave  of  the  Court. 
He  argues  that  an  application  for  the  arrest 
of  an  insolvent  is  "commcncinjr  a  legal 
proceeding  against  the  insolvent,"  and  that, 
as  no  leave  of  the  Court  had  been  obtain- 
ed before  the  application  was  made  the 
application  must  be  dismissed.  Mr.  Ray 
cited  before  me  certain  authorities  to  show 
that  an  application  for  the  arrest  of  an  in- 
solvent is  ''commencing  a  legal  proceeding11 
but  s.  26  (2)  provides  that  nothing  should 
be  done  against  the  property  of  the  insolv- 
ent or  against  the  insolvent  without  the 
leave  of  the  Court  during  the  pendency  of 
the  insolvency  proceeding. 

The  main  question  which  has  to  be  decid- 
ed now  is  whether  the  insolvency  proceed- 
ing is  still  pending  before  any  Court. 

I  am  of  opinion  that  there  is  no  proceed- 
ing pending  before  any  Court  now.  As 
far  as  the  Court  was  concerned  the  pro- 
ceedings terminated  when  the  application 
of  the  insolvent  for  the  discharge  was  refus- 
ed. There  is  nothing  further  to  be  done 
by  the  Court  as  far  as  the  insolvent  is  con- 
cerned. 

Section  41  (2)  of  the  Provincial  Insolvency 
Act  provides  that  the  Court  may  refuse 
an  absolute  order  of  discharge;  and  s.  42 
provides  that  the  Court  shall  refuse  an 
absolute  order  of  discharge  on  proof  of 
certain  facts  mentioned  in  that  section,  one 
of  the  facts  being  that  the  insolvent's 
assets  are  not  of  value  equal  to  eight  annas 
in  the  rupee. 

The  Court  under  the  provisions  of  s.  42 
refused  the  discharge  of  the  insolvent  and  as 
far  as  that  Court  was  concerned,  the  proceed- 
ings had  terminated.  I  am,  therefore,  of 
opinion  that  the  insolvent  is  liable  to  be 
arrested  in  execution  of  any  decree,  and 
that  the  orders  of  the  lower  Court  are 
wrong, 

I,  therefore,  set  aside  the  orders  of  both  the 
lower  Courts,  and  direct  that  the  matter  be 
heard  on  its  merits  by  the  Court  of  first 
instance.  The  appellant  will  get  his  costs 
in  all  Courts, 
z.  K.  Order  set  aside. 


[82 1.0. 19*6] 

BOMBAY  HIGH  COURT, 

ORIGINAL  CIVIL  JURISDICTION  APPEAL  No.  57 

OF  1921. 

September  23,  1921. 
Present:— Sir  Norman  Macleod,  KT.,  Chief 

Justice,  and  Mr.  Justice  Shah. 

VALLABHDAS  TULSID AS -DEFENDANT 

— APPELLANT 

versus 

NAGARDAS  JUTHABHAI— PLAINTIFF 
— RESPONDENT. 

Vendor  and  purchaser — Knowledge  of  defective  title 
—  Wilful  default — Breach  of  contract — Damages. 

Where  a  vendor  contracts  to  sell  property  to  which 
he  knows  that  his  title  is  defective,  and  there  is  a 
breach  of  the  contract  on  his  part,  the  conduct  of  the 
vendor  is  equivalent  to  wilful  default,  and  he  is 
liable  to  pay  damages  according  to  the  ordinary  rule, 
i.  e.,  the  difference  between  the  contract  price  and  the 
market  price  of  the  property  at  the  date  of  the  breach, 
although  there  may  be  cases  in  which  it  may  be  found 
that  there  was  an  implied  contract  that  in  the  event  of 
the  title  proving  to  be  defective  without  any  default  of 
the  vendor,  he  should  not  be  liable  to  pay  damages 
according  to  the  ordinary  rule.  [p.  143,  cols.  1  &  2.] 

Appeal  from  the  decision  of  Mr.  Justice 
Kanga. 

Mr.  Munshi,  for  the  Appellant, 
Messrs.    Coltman  and    Setalvad,  for  the 
Respondent. 

JUDGMENT. 

Macleod,  C.  J.— This  is  an  appeal 
from  the  decision  of  Mr.  Justice  Kanga. 
The  suit  filed  by  the  plaintiff  was  for 
damages  for  the  breach  of  a  contract  dated 
the  20th  August  1920  whereby  the  defend- 
ant agreed  to  sell  to  the  plaintiff  and  the 
plaintiff  agreed  to  buy  from  the  defendant 
certain  immoveable  property  at  Cadell  Road 
for  the  sum  of  Rs.  35,000.  The  plaintiff 
paid  Rs.  1,500  by  way  of  earnest  money,  and 
according  to  the  terms  of  the  contract  if  in 
the  title  there  should  be  any  such  thing 
as  might  require  to  be  set  right  then  the 
defendant  was  to  set  it  right  on  his  own 
account,  and  if  he  could  not  do  that  then 
he  was  to  return  the  earnest  money  which 
the  plaintiff  had  paid.  When  the  title  was 
investigated  it  was  ascertained  that  the  pro- 
perty was  ancestral  and  that  the  defendant 
had  two  minor  sons  who  had  an  interest 
therein.  The  plaintiff,  therefore,  required 
the  defendant  to  obtain  an  order  of  the 
Court  sanctioning  the  sale  by  the  defendant 
on  behalf  of  his  minor  sons.  The  defend- 
ant, however,  made  no  endeavour  to  obtain 
such  sanction.  Accordingly,  there  was  a 
breach  of  the  contract.  There  can  be  no 
doubt  that  the  defendant  knew  that  the  pro- 
perty was  ancestral  and  that  accordingly 


tfcLsiDAs  v.  tf AQABDAS  JCTHABHA!. 


143 


his  interest  in  the  property  was  limited. 
It  is,  therefore,  a  case  of  a  vendor  contract- 
ing to  sell  property  to  which  he  knew  that 
his  title  was  defective;  and  the  only  ques- 
tion at  issue  is  whether  he  should  pay 
damages  calculated  according  to  the  ordi- 
nary rule  in  the  case  of  a  breach  of  contract, 
or  whether  he  is  only  bound  to  pay  the 
purchaser's  costs  of  the  agreement  and  of 
the  investigation  of  title.  I  do  not  wish  to 
exclude  the  possibility  of  there  being  cases 
in  which  it  may  be  found  there  was  an 
implied  contract  that  in  the  event  of  the 
title  proving  to  be  defective  without  any 
default  of  the  vendor,  he  should  not  be 
liable  to  pay  damages  according  to  the 
ordinary  rule.  But  in  this  case  it  seems  to 
me  that  clearly  the  conduct  of  the  plaintiff 
in  agreeing  to  sell  the  property,  in  which 
he  knew  he  had  not  a  good  title,  is  equi- 
valent to  wilful  default,  and  there  is  no 
occasion  to  reconsider  what  I  said  in  Hasan 
Premjiv.  Jerbai,  [(1920)  0.  0.  J.  Appeal  No. 
41  of  1920,  decided  by  Macleod,  C.  J.  and 
Shah,  J.?  on  the  17th  December  1920] 
in  the  passage  which  has  been  quoted  by 
the  learned  Judge. 

I  think,  therefore,  that  the  decision  of  the 
Court  below  was  right,  and  the  appeal  must 
be  dismissed  with  costs. 

Shah,  J, — I  agree.  It  seems  to  me  that, 
on  the  admitted  facts  of  this  case,  the  deci- 
sion of  the  Trial  Court  is  right.  The  de- 
fendant knew  that  the  immoveable  property, 
which  he  agreed  to  sell,  was  his  ancestral 
property;  and  it  is  difficult  to  accept  the 
suggestion  made  before  us  under  the  cir- 
cumstances of  this  case  that  he  could  not 
realise  the  limitations  upon  his  power  to 
alienate  this  property  which  was  part  of  the 
ancestral  property  and  in  which  his  minor 
sons  had  a  vested  interest  according  to 
Hindu  Law.  The  limitations  upon  his 
power  to  alienate  ancestral  immoveable 
property  are  by  no  means  obscure;  and  I  do 
not  believe  that  the  defendant  was  not 
awaa  of  them  at  the  date  of  the  agreement. 
When  he  was  called  upon  to  make  good  the 
title,  he  did  not,  and  it  is  now  conceded 
that  he  could  not  ask  for  the  sanction  of  the 
Court  for  the  sale  on  behalf  of  the  minors 
on  the  ground  of  necessity  or  any  other 
ground  which  would  entitle  him  to  convey 
the  full  title  to  the  property  so  as  to  bind 
his  minor  sons.  I  do  not  see  how  he  could 
be  heard  now  to  say  that  when  he  entered 
into  this  agreement  he  did  not  realise 
the  limitations  upon  his  power  to  sell 


144 


NATIONAL  BAN&  0*  1NBIA  V.  LAKHPAT  BAI. 


this  property.  la  the  case  of  a  vendor 
who  agrees  to  sell  property  which  he  knows 
he  is  not  competent  to  sell  except  under 
certain  circumstances  he  cannot  take  ad- 
vantage of  a  clause  in  the  contract  such  as 
we  have  in  the  present  case;  nor  can  he 
urge  with  justice  that  he  is  not  liable  to 
pay  damages  on  the  footing  of  wilful 
default.  On  the  facts  it  seems  to  me  that 
this  is  clearly  a  case  in  which  with  full 
knowledge  of  the  limitations  on  his  power 
the  defendant  contracted  to  sell  this  pro- 
perty. It  is  right,  therefore,  that  the 
damages  should  be  assessed  on  the  lines 
directed  by  the  Trial  Court, 
N.  u.  v  Appeal  dismissed. 


OUDH  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  APPLICATION  No.  239 

OF  1925. 
May  14,  1925. 

Present :— Mr,  Simpson,  A.  J.  C. 

NATIONALBANK  OF  UPPER  INDIA, 

LIMITED,  LUCKNOW  IN  LIQUIDATION — 

APPLICANT 

versus 
LAKHPAT  RAI-OppoeiTR  PARTY. 

Companies  Act  (VII  of  1013),  as.  207,  215—Voluntaiy 
liquidation — Decree  obtained  against  Company,  in 

•„'•     '.  '•     Vr     -  '  •        whether  can    be  allowed  to 
•.''„•!      '  ,    ity  of. 

Section  215  of  the  Companie3  Act  lays  a  duty  upon 
the  High  Court  to  see  that  justice  is  done  in  casea  of 
voluntary  liquidation. 

Under  s.  207  (1)  of  the  Companies  Act  the  assets  of 
a  Company  which  is  being  voluntarily  wound  up  must 
be  applied  in  satisfaction  of  its  liabilities  pari  pasm. 
A  person  who  has  obtained  a  decree  against  such  a 
Company,  therefore,  cannot  be  allowed  to  realise  his 
decree  by  way  of  execution  inasmuch  as  to  permit  him 
to  do  so  would  give  him  more  than  his  share  of  the 
assets  of  the  Company, 

Application  under  s.  215,  Indian  Com- 
panies Act,  VII  of  1913. 

Mr.  N.  C.  Dictty  for  the  Applicant. 

Mr.  Bhawani  Shankar,  for  the  Opposite 
Party. 

JUDGMENT,— This  is  an  application 
for  the  removal  of  an  attachment.  The 
attachment  was  made  in  execution  of  one 
decree,  and  the  property  attached  is  another 
decree.  The  applicants  are  Har  Qobind 
Dayai  and  Seth  Radha  Kishan,  the  two 
liquidators  of  the  National  Bank  of  Upper 
India.  The  opposite  party  is  one  Lakhpat 
Rai,  who  was  a  depositor  in  the  Bank.  He 
tried  to  withdraw  .his  deposit,  but  the  Bank 
refused,  and  on  9th  April  1923  he  filed  a 


suit  against  the  Bank  and  on  31st  May  1923 
he  obtained  a  decree  for  the  sum  of 
Rs,  1,362-10-0.  By  this  time  the  Bank  had 
gone  into  voluntary  liquidation.  That 
liquidation  dates  either  from  6th  May  1923, 
when  one  meeting  was  held,  or  more  pro- 
bably from  30th  May  1923,  when  the  pro- 
ceedings of  the  first  meeting  were  confirm- 
ed. In  either  case  the  decree  was  passed 
after  the  Bank  had  gone  into  liquidation, 
not  that  this  point  is  of  any  importance. 
In  execution  of  his  decree  Lakhpat  Rai 
attached  another  decree.  This  was  a  decree 
for  sale  obtained  by  the  Bank  in  a  suit 
brought  on  the  basis  of  a  mortgage.  It 
was  dated  16th  November  1923  and  it  was 
against  one  Ram  Chandra.  Lakhpat  Rai 
attached  this  decree  on  30th  November  1923. 

The  first  step  taken  by  the  liquidators 
was  to  apply  to  the  Court,  which  was 
executing  Lakhpat  Rai's  decree,  for  stay  of 
execution.  That  Court  refused  stay  of 
execution  by  an  order  passed  on  23rd  March 
1925,  on  the  ground  that  the  proper  course 
for  the  liquidators  to  take  was  to  apply  to 
this  Court,  under  the  provisions  of  the 
Indian  Companies  Act  so  the  present 
application  has  been  filed  under  s.  215. 

It  is  pointed  out  that  under  s.  207  (1)  the 
assets  of  the  Company  have  to  be  applied 
in  satisfaction  of  its  liabilities  pari  passu, 
and  that  to  allow  Lakhpat  Rai  to  realize 
his  decree  in  this  fashion  would  be  to  give 
him  more  than  his  share  of  the  assets  of  the 
Company.  It  is  also  pointed  out  that  s.  215 
lays  it  upon  this  Court  to  see  that  justice  is 
done  in  cases  of  voluntary  liquidation. 

On  behalf  of  Lakhpat  Rai  it  is  pointed 
out  that  the  Court  has  no  power  to  pass 
the  order  prayed  for.  For  me  the  matter 
is  concluded  by  the  authority  in  the  case  of 
National  Bank  of  Upper  India  v.  GopalDas 
(1),  similar  powers  were  exercised  by  a 
Bench  of  this  Court,  and  in  the  Single  Judge 
case,  Miscellaneous  Application  No.  238 
of  1923,  A  jit  Prasad  v.  Chandra  Bhal  an 
application  exactly  on  all  fours  with  the 
preaeiic  one  was  granted,  I  may  add  that 
I  agree  with  my  learned  brothers  that 
such  orders  ought  to  be  passed  by  this 
Court.  Order  as  prayed  for  with  costs. 

z.  K.  Attachment  removed. 

(1)  91  Ind.  Cas.  1053;  28  0.  0.  197;  (1925)  A,  I.  R.  (0 ) 
630. 


[92  I.  0. 1926] 


ABDULLAH  V.  EMPEROR. 


145 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  APPEAL  No.  51  OF  1923. 

April  30,  1923. 

Present :  —Sir  Grimwood  Hears,  KT., 

Chief  Justice,  and  Mr,  Justice  Piggott. 

ABDULLAH  AND  OTHERS — ACCUSED — 

APPELLANTS 

lersus 
EMPEROR— OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  IMS),  ss.  190- A, 
239— Penal  Code  (Act  XLV  of  ISM),  ss  1SO-B,  m, 
U9,  152,  302,  506— Conspiracy  to  obstruct  Police  and 
stop  sale,  of  certain  goods — I  rnlaivful  assembly— Rioting 
— Murder  committed  in  course  of  noting — Respon- 
sibility of  members  of  unlawful  assembly — Sentence  — 
Samt  transaction— Joint  trial,  liability  of. 

A  large  crowd  of  men  assembled  at  a  village  and 
agreed  among  themselves  to  proceed  in  a  body  to  a 
certain  Police  {Station  there  to  threaten  and  to  obstruct 
the  Sub-Inspector  of  Police-  and  tlie  Policemen  with 
'him  in  the  discharge  of  their  duty  and  then  to  pioceed 
to  a  certain  bazaar  and  stop  the  sale  of  intoxicants, 
meat,  fish,  etc  It  was  also  agreed  that  if  the  Sub- 
Inspector  of  Police  did  not  act  in  a  certain  mariner  and 
offered  resistance,  he  and  the  Policemen  with  him 
would  be  assaulted.  The  ciowd  then  pioceeded 
towards  the  Police  Station  and  on  arnval  there  started 
an  altercation  with  the  Sub-Inspector  of  Police. 
Their  behaviour  and  attitude  was  such  that  if  they 
had  been  called  upon  to  dispense  they  would  not  have 
done  so.  During  the  course  of  the  altercation  the 
members  of  the  crowd  began  to  throw  stones  at  the 
Police.  The  Police  then  iired,  killing  two  men  and 
wounding  several  others.  The  mob  inflamed  to  fury 
then  murdered  the  Police  Inspector  and  several  other 
Pohco  and  chaukidars  Some  of  the  members  of  the 
crowd  were  charged  with  offences  under  ss.  120-B  and 
302  read  with  a.  149  of  the  Penal  Code  and  were 
convicted  of  the  latter  offence  at  one  trial  • 

Held>  (1)  that  the  immediate  object  of  the  crowd  as 
it/ reached  the  Police  Station  being  tu  threaten  md  to 
obstruct  the  Police  m  the1,  discliaigo  of  thpirduty.it 
was  an  object  to  commit  an  ofifeury  punishable  under 
s.  152  of  the  Penal  Code  winch  was  in  itself  sufficient 
to  bring  the  matter  within  the  purview  of  the  third 
clans  a  of  s  141  of  the  Code  and  that  consequently  the 
crowd  formed  an  unlawful  assembly  when  they  started 
from  the  village  ;  [p.  160,  col.  1 .] 

(2)  that  the  agreement  arrived  at  between  the  mem- 
bers of  the  crowd  to  stop  the  sale  of  intoxicants,  meat, 
fish,  etc ,  in  the  bazaar,  under  the  circumstancas,  was 
an  ii^re.iincnt  to  commit  an  offence  under  s    506  of  the 
Penal  Code  and  that  for  this  reason  also  the  crowd  wag 
an  unlawful  assembly  within  the  meaning  of  s.  Ill  of 
the  Code  ;  [p.  158,  ool  2.J 

(3)  that  as  soon  as  stones  began  to  b?   thrown  at  the 
Police  by   the  members  of    the    crowd  at    the  Police 
Station  the  members  of  the  unlawful  assembly  became 
guilty  of  rioting  and  that  in  view  of  what    happened 
subsequently  the  charge  under  s  302  read   with  s.  140 
of  the  Penal   Code  was    fully    established  as    against 
every  one  of  the  accused  persons  who  was  proved  by 
evidonos  to  have  continued    an   active  participant   in 
the  rioting  after  the  moment  when  stones  began  to  be 
thrown,  unless  it  could  ba    inferred  from  credible  evi- 
dence that  a  particular  -accused  person  had  separated 
himself  from  the  rest  before  the  offence  of  murder  had 
been  committed  by  any  of  them  ;     [p.  160,  col.  2.] 

(4;  that  having  regard  to  the  fact  that  tho  majority 

10 


of  the  accused  were  ignorant  peasants  trho  had  been 
duiwn  into  the  affair  by  misrepresentation  of  facts  and 
preposterous  promises  concerning  the  millennium  of 
tiwaraj,  the  ai rival  of  which  was  to  be  forwarded  by 
courage  and  lesolution  on  their  part,  those  of  them 
against  whom  specific  acts  such  as  would  have 
resulted  in  their  conviction  on  a  charge  of  murder 
apart  from  the  special  provisions  of  s  149  of  the  Penal 
Code,  were  not  proved,  did  not  deserve  the  extreme 
penalty  of  death  and  should  be  sentenced  to  trans- 
portation foi  life  only  ;  [p.  162,  col.  1.] 

(•')  that  the  charge  against  the  accused  being  that 
the  events  which  occurred  at  the  Police  Station  follow- 
ed upon  the  alleged  criminal  conspiracy  arrived  at 
between  the  accused  at  the  village  and  were  so  con- 
nected therewith,  not  merely  by  sequence  of  time  but 
by  the  link  of  causation,  as  to  make  the  conspiracy 
at  the  village  and  the  subsequent  assault  on  the  Police- 
men at  the  Police  kStation  parts  of  the  same  transac- 
tion, within  the  meaning  of  that  expression  in  s.  239 
of  the  Cr.  I'.  C  ,  the  joint  trial  of  the  accused  was 
perfectly  justified  ;  [p.  H6,  ool.  1  ] 

(6>  that  in  order  to  decide  whether  the  joint  trial  of 
the  accused  was  or  was  not  legal  the  Judge  had  to 
look  to  the  case  for  the  prosecution  as  set  forth  in  the 
charges  themselves  and  that  it  was  not  necessary  for 
him  to  consider  what  the  position  would  be  if  he 
eventually  cime  to  the  conclusion  either  that  no 
offence  punishable  under  s  120-B  was  committed  by 
any  of  the  accused  or  that  if  any  offence  was  so  com- 
mitted it  was  one  excluded  from  his  cognizance  by 
s.  UW-A  of  the  Cr  P.  C  [p.  147,  col.  l.J 

Whatever  may  be  said  in  defence  of  peaceful  picket- 
ting  when  undertaken  m  the  market  of  a  large  town 
by  individuals  or  by  small  groups  of  earnest  and 
enthusiastic  men  or  women,  has  no  application  what- 
ever to  the  flooding  of  a  small  bazaar  by  a  body  of 
men  whose  mere  presence  there  would  put  a  stop  to 
all  business  which  could  only  be  carried  on  with  their 
consent  and  with  their  active  assistance,  [p.  158,  co!4 

in  every  case  of  a  conviction  on  a  charge  of  murder 
the  law  regards  the  sentence  of  death  as  the  normal 
and  the  appropriate  sentence.  Where  the  Court 
sees  lit  to  pa»s  the  lesser  sentence  of  transportation, 
for  life  it  must  record  its  reasons  for  so  doing,  [p.  161, 
col.  2.J 

Criminal  appeal  from  an  order  of  the 
Special  Sessions  Judge,  Gorakhpur. 

FACTS. —In  this  case  225  accused  were 
jointly  put  up  for  trial  on  various  chargea 
for  an  assault  on  the  Police  force  of  Chaura 
Police  Station  in  the  Gorakhpur  District, 
resulting  in  the  murder  of  23  Police  and 
chaukidars,  the  plundering  of  property 
belonging  to  the  said  officials  and  to 
Government,  the  destruction  by  fire  of  the 
Police  Station  buildings,  and  the  causing  of 
hurt  to  various  Police  and  chaukidars. 

Messrs.  M.  M.  Malaviya,  K.  N.  Malaviya^ 
Sanyal,  D.  N.  Malaviya,  K.  C.  Shrivastavd 
and  A.  P.  Dube,  for  the  Appellants. 

The  Government  Advocate  and  Mr.  Kadrit 
R.  RM  for  the  Grown. 

JUDGMENT,— [Their  Lordships  after 
referring  to  the  incident  and  commending 
the  bravery  of  the  Police  and  the  admirably 


146 


ABDULLAH  Vt 


way  in  which  the  lower  Court  and  Counsel 
had  handled  the  case,  proceeded]: — 

The  charges  against  all  the  accused  were 
six  in  number.  There  was  a  seventh 
charge  affecting  twenty-six  only  out  of  the 
entire  number  and  an^eighth  charge  affect- 
ing the  same  twenty-six  and  twelve 
others  in  addition.  These  charges  are  set 
forth  in  detail  in  the  opening  pages  of  the 
judgment  under  appeal  and  we  do  not 
propose  to  recapitulate  them.  They  admit, 
however,  of  a  certain  classification.  We 
have  already  spoken  of  the  crowd  which 
attacked  the  Police  as  an  assembly  of  persons 
moving  in  a  certain  formation  and  animat- 
ed by  a  definite  purpose.  It  is  an  essential 
part  of  the  case  for  the  prosecution  that  the 
nucleus  of  this  crowd  consisted  of  a  body 
of  perhaps  1,000,  perhaps  1,500  persons, 
which  set  forth  from  the  little  village  of 
Dumri  Khurd,  situated  some  two  miles  or 
rather  less  from  Chaura  Police  Station.  It 
is  alleged  as  against  all  the  accused  persons 
that  they  formed  part  of  this  original  assemb- 
ly at  the  village  of  Dumri  and  that  before 
their  departure  from  that  place,  they  had 
entered  into  an  »_?:<•<  n\**i\  amongst  them- 
selves to  do  certain  illegal  acts  of  such  a 
nature  as  to  render  them  liable  to  punish- 
ment under  s.  120-B  of  the  Indian  Penal 
Code.  This  has  been  spoken  of  in 
argument  as  the  "conspiracy  charge1'  and 
we  propose  to  refer  to  it  hereafter  under 
that  designation.  For  the  present,  the  point 
which  we  have  to  note  is  that  it  was  an 
integral  part  of  the  case  for  the  prosecution 
in  the  Court  below  that  the  events  which 
occurred  later  in  the  day,  in  the  neigh- 
bourhood of  Chaura  Police  Station,  fol- 
lowed upon  this  alleged  criminal  con- 
spiracy at  Dumri  Khurd  in  such  a  manner 
and  were  so  connected  therewith  not  merely 
by  sequence  of  time,  but  by  the  link  of 
causation  as  to  make  the  conspiracy  at 
Dumri  and  the  subsequent  assault  on  the 
Policemen  at  Chaura  parts  of  the  same 
transaction,  within  the  meaning  of  that  ex- 
pression in  s.  239  of  the  Cr.  P.  C. 

The  next  five  charges,  Nos.  2,  3,  4,  5  and 
6,  relate  to  what  took  place  on  the  after- 
noon of  the  4th  of  February  1922,  at 
Chaura  Police  Station  and  in  its  immediate 
neighbourhood.  They  may  be  described  as 
different  presentations  of  one  and  the 
same  charge  in  lesser  or  in  more  aggravat- 
ed forms.  They  start  with  the  second  charge, 
which  simply  alleges  as  against  all  the 
Accused  persons  that  they  were  members 


[92 1.  C.  1926] 

of  an  unlawful  assembly,  within  the  mean- 
ing of  the  definition  ins.  141  of  the  Indian 
Penal  Code,  at  the  time  when  force  or 
violence  was  used  by  members  of  the  said 
assembly,  in  prosecution  of  the  common 
objects  thereof.  This  charge  is,  therefore, 
laid  under  s.  147,  Indian  Penal  Code.  It  is 
further  the  case  for  the  prosecution  that  the 
force  or  violence  thus  used  extended  to  the 
murder  of  twenty-three  Police  and  chauki- 
dars,  the  plundering  of  property  belonging 
to  the  said  officials  and  to  Government,  the 
destruction  by  fire  of  the  Police  Station 
buildings  and  the  voluntary  causing  of  hurt 
to  various  Police  and  ckaukidars.  We  have, 
therefore,  charges  drawn  up  under  ss.  302, 
395,  436  and  332,  Indian  Penal  Code,  read 
in  each  case  with  s.  149  of  the  same  Code. 

The  seventh  and  eighth  charges,  which 
affect  some  of  the  accused  persons  only,  may 
be  grouped  together.  They  deal  with  the 
damage  inflicted  on  the  Railway  line  and 
on  the  telegraph  wires  and  are  framed 
respectively  under  s.  126  of  the  Railways 
Act  IX  of  1890  and  under  s.  25  of  the  Indian 
Telegraph  Act  No.  XIII  of  1885.  - 

There  is,  as  a  matter  of  fact,  one  further 
charge  of  such  slight  importance  that  it 
had  been  almost  overlooked,  It  affects  a 
single  one  of  the  accused,  the  appellant 
Sikhari,  and  is  framed  under  s.  412,  Indian 
Penal  Code.  In  substance  it  refers  back 
to  the  charge  of  dacoity  under  s.  395/149, 
Indian  Penal  Code,  in  which  Sikhari  was 
already  involved,  and  alleges  against  him, 
in  the  alternative,  that,  if  he  was  not  actual- 
ly concerned  in  the  said  dacoity,  he  was  at 
any  rate  subsequently  found  in  possession 
of  property  which  had  been  stolen  in  the 
course  of  the  same.  The  charge  is  somewhat 
loosely  worded  and  does  not  allege  against 
Sikhari  the  essential  point  that  he  knew  that 
the  possession  of  the  property  in  question 
bid  been  transferred  by  the  commission 
of  dacoity,  but  this  is  not  a  matter  upon 
which  we  find  it  necessary  to  insist. 

Now  the  case  for  the  appellants  is  that 
no  offence  of  criminal  conspiracy  was  com- 
mitted by  any  persons  at  Dumri  Khurd  on 
the  morning  of  the  4th  of  February  1922  ; 
or  in  the  alternative  that,  if  there  was  such 
conspiracy,  it  was  not  one  in  respect  of 
which  a  prosecution  could  be  instituted 
without  an  order  in  writing  by  the  Local 
Government  in  view  of  the  provisions  of 
section  1%-A  of  the  Indian  Penal  Code.  To 
this  contention  we  shall  have  to  revert  later, 
The  point  immediately  before  us  is  that. 


[92 1.  0, 1926] 


.  ABDULLAH  V.  BMPfiROR. 


147 


whatever  offence  may  or  may  not  have  been 
committed  atDumri  Khurd  on  the  forenoon 
of  the  4th  of  February  1922,  it  was  not  one 
BO  connected  with  the  offences  committed 
at  Chaura  later  in  the  same  day  that  it 
could  fairly  be  regarded  aa  "committed  in 
the  same  transaction"  within  the  meaning 
of  s.  239  of  the  Or.  P.  0.  Upon  this  plea 
the  appellants  base  the  further  contention 
that  there  has  been  a  misjoinder  of  charges, 
sufficient  to  invalidate  the  entire  trial  in 
the  Court  below.  We  think  we  do  no  in- 
justice to  Pandit  Madan  Mohan  Malaviya, 
the  very  able  Counsel  who  argued  this  part 
of  the  case  on  behalf  of  the  appellants,  when 
we  say  that  it  is  not  our  impression  that 
he  seriously  pressed  this  argument  to  the 
logical  conclusion  that,  if  we  found  it  cor- 
rect, we  should  have  no  option  but  to  order 
a  re-trial  of  the  entire  case.  He  is  certainly 
not  to  be  blamed  if  he  hesitated  to  face  the 
possible  consequences  of  such  a  contention, 
were  it  to  prevail  with  the  Court.  Our 
own  view  of  the  question  has  been  already 
indicated  by  the  expressions  we  have  used 
in  setting  forth  the  charges,  but  we  should 
perhaps  amplify  it.  When  the  learned 
Sessions  Judge  entered  upon  the  trial  of 
this  case,  and  was  faced  with  the  question 
whether  the  provisions  of  s.  239,  Cr.  P.  C., 
did  or  did  not  authorise  him,  not  merely 
to  try  the  225  accused  persons  before  him 
at  one  and  the  same  trial,  but  to  try  them 
on  each  and  all  of  the  charges  set  forth 
against  them  under  the  order  of  the  Com- 
mitting Magistrate,  he  could  not  possibly 
know  what  conclusion  he  would  arrive  at 
after  hearing  the  whole  of  the  evidence.  He 
had  to  look  to  the  case  for  the  prosecution 
as  set  forth  in  the  charges  themselves.  He 
was,  therefore,  for  the  reasons  which  we 
have  already  indicated,  warranted  by  law 
in  entering  '  upon  this  trial  of  the  225 
accused  on  the  charges  as  framed.  The 
convictions  which  he  has  recorded  are 
warranted  by  the  conclusions  at  which  he 
arrived  on  the  evidence.  As  he  had  to 
regard  merely  the  "charges,"  it  was  not 
necessary  for  him  to  consider  what  the  posi- 
tion would  be,  if  he  had  eventually  come  to 
the  conclusion,  either  that  no  offence  punish- 
able under  s.  120  B,  Indian  Penal  Code,  was 
committed  by  any  persons  at  Dumri  Khurd 
oa  the  forenoon  of  4th  February  1922,  or 
that  if  any  offence  was  so  committed  it 
was  one  excluded  from  his  cognizance  by 
s.  196-A  of  fche  Cr.  P.  C.  In  any  event,  the 
acquittal  of  all  the  accused  paraoaa  oa  the 


conspiracy  charge  would  have  removed  any 
possible  objection  to  the  validity  of  the 
trial.  It  is  possible  that  in  certain  events 
the  prosecution  may  have  to  suffer  the 
penalty  of  having  attempted  to  prove  too 
much,  by  seeing  a  verdict  of  acquittal  re- 
corded which  might  otherwise  have  been 
avoided. 

We  do  not  feel  that  we  are   greatly  con- 
cerned at  this  stage  to  discuss  the  form  of 
the  various  charges,    so   long    as    we    are 
satisfied  that   there  has  been  no  such  mis- 
joinder  of  charges  as  to  force  upon  us  the 
duty  of  vindicating  the  law  by  quashing  all 
the  convictions  upon  this  ground  alone,  and 
the  consequent  responsibility  of  considering 
the  question  of  the  ordering  of  a  new  trial 
upon  such  charge  or  charges  as  we  might 
direct  to  be  framed.    On  the  case   for  the 
prosecution,  the  three  groups  of  charges  as 
we  have  set  them  forth  were  in  respect  ^  of 
offences  committed  in  the  same   transaction 
within  the  meaning  af  s.  239,  Cr.  P.  C.  The 
final  charge  against  the    accused    Sikhari 
alone,  was  really  in  the  nature  of  an  alter- 
native   to  one  of  the  others.    There   was 
nothing  illegal  in  the  procedure  adopted 
by  the  Trial  Court.  The  conception  we  have 
formed  of  our  duty  in  this  matter  is  that 
we  ought  to  concentrate  our  attention  upon 
the  one  substantial  charge  in  the  case.  There 
is  not  one  of  the  appellants  now  before  us 
who  has  been  convicted  upon   any  of  the 
other  charges,  but  has  been  also  convicted 
of  the  offence  of  murder  committed  in  the 
course  of  a  riot  and  punishable  under  s.  302- 
149,  Indian  Penal  Code.     In  respect  of  any 
of  the  appellants  against  whom  this  charge 
is  not,  in  our  opinion,  satisfactorily  proved^ 
but  who  is  not  entitled  to  a  clear    verdict 
of  acquittal  upon  all  the  charges,    the  only 
offence,  in  our  opinion,  established  is  that 
of  simple  rioting  punishable  under  s.   147t 
Indian  Penal    Code.    This  offence    is    set 
forth  in  the  second  of  the  charges  framed. 
As  regards  the  conspiracy  charge  there  are 
certain  aspects  of  the  case  which  we  shall 
have  to  consider  further,  because   of  their 
bearing  upon  the  important  and    essential 
question  of  the  common  object  or  objects  of 
the  unlawful  assembly  around  Chaura  Police 
Station  referred  to  in  the  charge  of  murder. 
Otherwise  we  propose  to    concentrate  our 
attention  on  the  charge  under  s.  302/149  of 
the  Indian  Penal    Code    and    to    consider 
whether  this  is  established  against  all  or 
any  of  the   appellants.     The   question  of 
sentence  can  be  completely  and  adequately 


148 


ABDULLAH  V.  EMPEROR, 


dealt  with  , under  that  single  charge.  So 
far  as  this  Court  is  concerned  no  lesser 
sentence  than  that  of  transportation  for  life 
can  lawfully  be  imposed  on  any  accused 

person  found  guilty  upon  that  charge. 
******* 

On  the  occasion  of  the  Wednesday  market 
—the  1st  of  February  1922— a  body  of 
vplunteers,  thirty  to  forty  in  number,  moved 
upon  Mundera  and  halted  outside  the 
village  in  the  morning,  waiting  to  com- 
inence  operations  as  soon  as  the  bazaar 
was  fairly  under  way.  The  shop-keepers  and 
the  agents  of  the  substantial  land-owner  of 
the  village  were  on  the  alert.  The  latter 
came  out  and  questioned  the  volunteers  and 
told  them  bluntly  that  Babu  Sant  Bakhsh 
Singh  would  not  allow  them  to  interfere 
with  his  market.  Reading  a  little  between 
the  lines  of  the  evidence  there  can  be  no 
doubt  that  any  attempt  at  actual  coercion 
on  the  part  of  the  volunteers  would  have 
been  resisted  by  force.  Moreover,  it  is 
clear  that  word  had  been  sent  to  the 
Local  Police  Station,  for  Sub-Inspector  Gup- 
teshar  Singh  marched  into  Mundera  with 
a  considerable  body  of  Police  and  chauki- 
dars.  Before  his  arrival,  however,  the 
volunteers  had  abandoned  their  enterprise. 
In  face  of  the  resolute  attitude  of  the  agents 
in  charge  of  the  bazaar,  the  volunteers 
felt  themselves  too  few  in  number  to 
attempt  anything.  They  scattered  and 
most  of  them  returned  to  their  homes. 

Two  points,  however,  require  to  be  noticed. 
The  leaders  of  the  volunteers,  before  they 
went  off,  distinctly  told  their  interlocutors 
that  they  would  return  on  the  following 
market  day  (Saturday,  the  4th  of  February) 
in  such  numbers  as  to  enforce  compliance 
with  their  demands.  There  is  naturally 
some  room  for  controversy  as  to  the  precise 
laiLLr.Mi;-'  used;  but  that  it  was  a  threat, 
and  was  understood  srs  such,  is  fully  proved, 
not  only  by  the  direct  evidence,  but 
tiy  the  fact  that  the  landholder  sent  a 
trusted  agent  to  Gorakhpur  to  appeal  per- 
sonally to  the  District  Magistrate  for  spe- 
cial Police  protection  for  his  market  on 
the  following  Saturday.  There  can  be  no 
doubt  whatever  that  such  an  appeal  was 
made,  and  that  it  resulted  in  the  arrival  by 
train  at  Chauri  Chaura  Railway  Station,  at 
about  9  A.  M  ,  on  the  4th  of  February  of  a 
small  body  of  armed  Police,  nine  muskets 
in  all. 

The  other  circumstance,  trifling  in  iteelf 
but  of  far  reaching  consequence,  is  that  a 


[92  I.  0. 192#J 

few  volunteers  did  enter  the  Mundera  bazaar 
after  the  gathering  had  dispersed.  There 
is  no  evidence  worth  speaking  of  that  they 
actually  did  anything  provocative,  and 
we  give  accused  generally  the  benefit  of 
our  belief  that  the  volunteer  enterprise  had 
really  been  given  up  for  the  day  and  that 
the  individuals  who  entered  the  bazaar 
did  so  on  private  business  of  their  own. 
Unfortunately,  their  mere  presence  in  the 
bazaar  proved,  under  the  circumstances,  to 
be  provocative.  Sub-Inspector,  Gupteshar 
Bingh  reached  Mundera  under  the  impres- 
sion of  an  emergency  calling  for  action  on 
his  part  and  he  found  the  persons  in 
charge  of  the  bazaar  excited  and  alarmed. 
There  is  some  conflict  of  evidence  as  to 
the  details  of  what  followed.  Indeed  the  one 
witness  from  whom  one  would  have  expect- 
ed a  clear  and  co-herent  account,  Police 
Constable  Siddiq  (the  one  Constable  who 
survived  the  massacre)  is  confused  and 
self-contradictory.  Taking  the  evidence 
as  a  whole,  it  seems  clear  to  us  that  the 
Sub-Inspector  was,  at  some  time  in  the 
forenoon,  at  the  office  of  the  local  land- 
holder, when  certain  volunteers  were 
brought  before  him  by  Policemen  who  had 
found  them  in  the  bazaar.  There  were 
probably  only  two  of  them  ;  there  may  have 
been  three  or  four,  but  one  of  them  was 
certainly  the  accused  Bh&gwan  A/iir,  whom 
we  have  spoken  of  the  "  drill-instructor/1 
The  Sub-Inspector  spoke  roughly  to  the 
volunteers.  His  wrath  was  particularly 
directed  against  Bhagwan,  whom  he  abused 
for  drawing  a  pension  from  Government 
while  taking  an  active  part  in  an  "  unlawful 
association,11  whose  ostensible  object  waa 
the  overthrow  (no  matter  by  what  means) 
of  the  Government  whose  salt  he  was  eating* 
There  is  an  allegation  that  Bhagwan  answer- 
ed  insolently ;  there  is  also  a  suggestion 
that  the  Sub-Inspector  was  in  some  way 
further  inflamed  against  the  man  by  one 
of  the  landholder's  agents  named  Raghubar 
Dayal.  What  we  are  certain  of  is  that  the 
Sub-Inspector  thoroughly  lost  his  temper 
and  struck  the  man ;  we  hold  it  proved 
that  he  gave  him  two  cuts  with  a  light 
cane,  and  he  very  probably  also  struck  him 
with  the  open  hand. 

Bhagwan  and  any  volunteer  or  volunteers 
with  him  thereupon  decamped  and  left 
Mundera  altogether.  No  arrests  were  con- 
sidered necessary  by  the  Sub-Inspector  and 
no  official  report  was  ever  made  as  to  any 
collision  on  that  date  between  the  Police 


9$  I,  0.  1926] 


ABDULLAH  V,  EMPEROtt. 


149 


and  volunteers.  A  curious  fact  is  that  we 
have  it,  not  only  from  the  evidence  of 
Siddiq  but  from  a  statement  made  by  the 
accused  Bhagwan  himself  (Ex,  226),  that 
the  latter  voluntarily  presented  himself  at 
the  Police  Station  the  following  morning 
(the  2nd  of  February)  and  had  an  explana- 
tion with  Sub-Inspector  Gupteshar  Singh. 
As  might  be  expected  the  accounts  of  this 
explanation  differ  somewhat ;  but  they 
agree  to  this  extent,  that  explanations  and 
apologies  were  tendered  and  received  and 
that,  as  between  the  principal  actors  in 
this  episode,  the  unfortunate  incident  seem- 
ed to  have  been  brought  to  a  conclusion 
satisfactory  to  both  parties. 

There  were  nevertheless  other  interested 
parties  who  saw  in  the  Sub-Inspector's  loss 
of  temper  and  his  unjustifiable  action  a 
lever  which  might  be  worked  with  impres- 
sive results.  For  what  immediately  follow- 
ed we  turn  to  the  evidence  of  the  approver 
Sikhari.  We  agree  with  the  learned  Ses- 
sions Judge  that  this  man  was  endeavour- 
ing to  earn  his  pardon  by  making  a  clean 
breast  of  all  facts  within  his  knowledge. 
We  find  moreover  abundant  corroboration 
of  all  matters  in  his  evidence  which 
strike  us  as  essential.  He  tells  us  that  on 
the  evening  of  the  thwarted  enterprise 
at  Mundera,  that  is  on  Wednesday,  the  1st 
of  February  1922,  there  was  a  small 
gathering  at  his  house.  Bhagvvan  Ahir  was 
present,  and  so  also  were  ringleaders  such 
as  Nazar  Ali,  Lai  Mohammad,  Mahadeo,  son 
of  Thag,  and  llamrup  (barhai).  What 
Sikhari  understood  from  the  conversation 
which  followed  was  that,  notBhagwan  only, 
but  Mahadeo  and  Ramrup  as  well,  had  been 
beaten  by  Sub  Inspector  Gupteshar  Singh. 
It  was  asserted  that  Babu  Sant  Bakhsh 
Singh  (the  owner  of  the  Mundera  bazaar) 
had  caused  them  to  be  seized  and  brought 
to  his  office  at  Mundera,  where,  they  were 
tmten  by  the  Police.  On  this  it  was  agreed 
that  letters  should  be  sent  out  to  volunteer 
associations  in  neighbouring  villages,  with 
a  view  to  their  assembling  in  a  body  strong 
enough  to  warrant  them  in  paying  a  visit 
to  the  Sub  Inspector  and  "  asking  him  why 
he  had  beaten  our  men/'  Early  on  the 
following  morning  (Thursday,  the  2nd  of 
February  1922)  the  same  persons  came 
together  again  at  Shikari's  house  and  as 
the  officials  and  ringleaders  were  illiterate, 
a  body  of  eleven,  the  witness  Nakched 
P.  W.  No.  125),  was  employed  to  transcribe 

ve  copies  of  $  letter  to  be  seut  out  as  a 


summons      to     neighbouring     volunteers, 
There  was  some  discussion  as  to  the  actual 
place    to     be    chosen    for    the    proposed 
gathering.    Someone  seems  to  have  observ- 
ed, shrewdly  enougfi,  that  if  this  were  fixed 
in  the  immediate  neighbourhood  of  Chaura 
Police    Station,  the    kSub-Inspector    would 
break    up    the    gathering    by      arresting 
the  volunteers  piecemeal  as  they  arrived. 
Eventually    a    threshing    floor    at  Dumri 
Khurd,     in      the    immediate     neighbour- 
hood of  Sikhari's  house,    was    fixed  upon 
for  the  meeting  place.    It  was  determined 
that  the  volunteers  should  first  march    to 
Chaura  Police  Station  to  settle  their  differ- 
ences   with  Sub-Inspector  Gupteshai  Singh 
and    thence     proceed    northwards    to    the 
Mundera  bazaar  in  order  to  impose  their 
will  on    the    re-calcitrant  shop-keepers   of 
that   place.    There  would  thus  be  a  long 
day's  work  before  them,  which  could  scarce- 
ly   be  undertaken  fasting.     Arrangements 
were,   therefore,  made  for  the  collection  of 
supplies  in  the  shape  of  raw  sugar   which 
could  be  distributed  to  those  attending  the 
meeting.     We  have   independent  evidence 
that  this  was  actually  done.    The  five  letters 
actually  issued  were  to  serve  as  summonses 
for  five  hundred    to    seven    hundred    and 
fity  men ;  but  we   note  with  interest    that 
Sikhari  says  they  were  confident  from  the 
outset  that  more  than  this  number  would 
assemble  once  the  newa  got  abroad.    They 
expected  a  gathering  of  between  two  and 
three  thousand  men. 

The  boy  Nakched  was  perhaps  a  little 
confused  under  the  stress  of  a  severe  cross- 
examination;  but  in  the  main  he  has  told  a 
consistent  story,  and  we  have  no  doubt  he 
was  trying  to  tell  the  truth  to  the  best  of 
his  recollection.  The  account  which  he 
gave  to  the  Investigating  Police  on  the  16th 
of  February  1922  (vide  Ex.  13s)  of  the 
contents  of  the  letters  he  was  required  to 
write  was  given  while  his  memory  was  still 
fresh.  As  a  summary  of  the  essentials  of  the 
message  it  is  in  complete  accordance  with, 
the  evidence  subsequently  given  by  the 
witness  and  we  are  prepared  to  accept  it  as 
an  accurate  summary.  It  runs  as  follows: 

"The  Sub-Inspector  of  Chaura  seeks  out 
and  beats  the  volunteers;  therefore  bring  all 
your  volunteers  to  Dumri.  We  will  go  and 
enquire  from  the  Sub-Inspector  why  he 
makes  a  pracfice  of  beating  the  volunteers; 
if  he  wants  to  send  us  to  jailor  to  arrest  us 
he  may  do  so  with  all  of  us/' 

The  meaning  of  this  last  pharse  is  obvious 


150 


ABDULLAH  V.  EMPEROR. 


enough:  the  volunteers  were  to  assemble  in 
such  numbers  as  to  make  it  palpably 
preposterous  for  the  Sub-Inspector  to  at- 
tempt to  arrest  all  of  them.  It  was  suggest- 
ed in  argument  that  we  ought  to  see  in 
these  words  a  declaration  beforehand,  on  the 
part  of  the  leaders  of  the  volunteers,  that 
one  and  all  of  them  would  abide  faithfully 
by  their  pledge  to  absolute  non-violence 
.submitting  meekly  to  arrest  or  to  any  other 
action  which  the  Police  might  taken  within 
the  limits  of  their  lawful  authority.  We  are 
impressed  rather  with  the  ironic  turn  of  the 
phrase  and  its  dangerous  implications.  The 
volunteers  had  only  to  assemble  in  suffici- 
ent numbers,  and  to  be  resolute  enough  in 
their  determination  that  nothing  should 
be  done  to  any  one  of  them  which  was  not 
done  to  the  whole  body  and  they  impose 
their  own  will;  the  arresting  of  even  a  couple 
of  thousand  men  was  a  known  impossibility. 

In  his  evidence  at  the  Sessions  trial  Nak> 
ched  attempts  a  somewhat  fuller  statement. 
As  we  read  his  evidence,  he  purports  to  give 
from  memory  a  complete  transcript  of  the 
letters.  In  this  version  we  find  the  pro- 
vocative statement  that  the  Sub-Inspector 
is  seeking  out  the  volunteers  in  order  to 
beat  them.  The  closing  phrase  appears  in 
a  confused  form,  with  a  reference  both  to 
beating  and  to  imprisonment.  The  essential 
point  remains  the  same:  there  was  to  be 
no  beating  of  individuals,  no  arresting  of 
individuals.  In  this  version,  however,  there 
is  a  reference  to  a  further  object  for  the  as- 
sembly; they  were  to  go  on  to  Mundera  and 
stop  the  sale  of  fish  and  of  meat. 

We  do  not  think  it  would  help  the  de- 
fence if  we  were  to  insist  on  this  fuller 
account  of  the  contents  of  the  letters  as  it 
appears  at  page  543  of  our  printed  record 
and  we  are  a  little  sceptical  as  to  the  capa- 
city of  this  boy  of  eleven  to  re-produce 
the  entire  contents  from  memory.  We 
think  it  safer  to  stand  by  the  summary  of 
essentials  which  he  gave  while  his  memory 
was  comparatively  fresh.  The  volunteers 
were  summoned  to  Dumri  Khurd  on  the 
strength  of  a  preposterously  exaggerated 
account  of  the  assault  committed  by  the 
Sub -Inspector  on  the  accused  Bhagwan  ; 
the  immediate  object  of  the  assembly  was 
that  they  should  march  in  an  organized 
body  to  Chaura  Police  Station  and  ask  the 
Sub-Inspector  what  he  meant  by  it.  The 
meeting  was  fixed  for  Saturday  mornin^ 
the  4th  of  February  1922. 

IE  the  interval,  further  action  was  taken 


[92  I,  0. 1926] 

about  which  Sikhari  apparently  knows  little 
or  nothing,  but  as  to  which  there  is  plenty 
of  evidence.  The  accused  Lai  Muhammad 
sent  in  a  report  to  the  District  head-quar- 
ters of  the  Khilafat  Committee  at  Gorakh- 
pur.  The  evidence  on  this  point  consists 
partly  of  documents  seized  by  the  Police, 
when  they  raided  the  Khilafat  Office  on 
the  5th  of  February,  and  partly  of  the  evi- 
dence of  various  members  of  the  Executive 
Committee  of  the  Khilafat  at  Gorakhpur, 
whom  the  prosecution  put  into  the  witness- 
box  one  after  another,  in  the  hope  of  getting 
at  the  whole  truth  concerning  this  import- 
ant aspect  of  the  case.  We  do  not  feel  that 
any  very  substantial  measure  of  success 
has  been  attained.  On  one  matter  of  detail 
there  is  a  distinct  conflict  of  testimony, 
Maulvi  Subhanullah  (P.  W.  No.  134j,  seems 
positive  that  Lai  Muhammad  either  brought 
his  written  report  to  Gorakhpur  himself, 
or  at  any  rate  followed  it  up  by  a  personal 
visit.  The  Secretary  of  the  Khilafat  Com- 
mittee, Muhammad  Sulaiman  Adhami  (P. 
W.  No.  170),  does  not  think  ^  that  Lai 
Muhammad  came  to  Gorakhpur  in  person, 
and  is  positive  that  Maulvi  Subhanullah  is 
making  a  mistake  if  he  says  (as  he  appa- 
rently does)  that  Lai  Muhammad  was  sent 
from  that  gentleman's  house  to  the  office 
of  the  Khilafat  Committee  with  his  letter, 
or  written  report  in  his  hand.  There  is  a 
conflict  of  evidence  also  as  to  whether 
the  paper,  Ex.  95,  is  this  report  in  origin- 
al ;  indeed  we  are  in  some  little  doubt  as 
to  whether  Lai  Muhammad  or  any  other 
volunteer  had  the  capacity  to  draft  such  a 
document.  We  are  beyond  all  question 
dealing  with  the  testimony  of  reluctant 
witnesses,  who  were  as  economical  of  the 
truth  as  they  dared  to  be.  Certain  facts 
are,  however,  fully  established,  Lai  Muham- 
mad did  cause  to  be  conveyed  to  the  office 
of  the  Khilafat  Committee  a  letter  or  report 
of  which  Ex  95  is  at  any  rate  a  correct 
transcript.  This  report  was  sent)  in  by 
hand,  so  that  the  information  it  conveyed 
could  be,  and  undoubtedly  was,  supple- 
mented by  oral  communication  with  the 
person  or  persons  who  carried  it.  The 
communication  was  one  which  called  for 
an  immediate  answer  :  if  any  written 
answer  was  returned  it  has  disappeared, 
nor  can  any  trace  of  it  be  discovered  in 
the  correspondence  registers  of  the  Gorakh- 
pur Khilafat  Committee.  Some  sort  of 
answer,  oral  or  written,  or  both,  was  un- 
questionably returned. 


ABDULLAH  fc,  BMPBKOR. 


[92  L  0. 1928] 

The  letter,  Ex.  95,  is  to  the  effect  that 
two  volunteers,  while  peacefully  engaged 
about  their  own  marketing  (the  name  of 
the  bazaar  is,  not  given),  had  been  seized 
and  severely  beaten  by  the  officer-in-charge 
of  the  Local  Police  Station.  "  We,  therefore, 
report  this  matter  to  your  worships,"  the 
letter  concludes,  "  in  order  that  you  may 
come  and  investigate  the  matter.  It  is 
because  of  your  worships  that  we  (ham-log, 
i.  e.,  the  local  volunteers)  have  not  com- 
mitted any  offence  of  any  sort,  for  whatever 
action  we  take  will  be  after  inquiring  from 
(you)  our  superiors.1'  A  hook  has  been 
produced  (Ex.  92)  which  purports  to  be  the 
abstract  register  of  correspondence  received 
at  the  office  of  the  Kliilafat  Committee  at 
Gorakhpur  :  this  register  the  witnesses 
called  from  that  Committee  have  (not  with- 
out some  apparent  shuffling  and  hesitation) 
admitted  to  be  genuine.  In  this  register 
there  is  an  entry  under  date  the  2nd  of 
February,  1922,  of  a  letter  received  from 
Lai  Muhammad,  Secretary,  Chauri  Chaura, 
the  recorded  summary  of  which  is  to  the 
effect  that  the  Sub-Inspector  in  charge  of 
Chaufa  Police  Station  has  severely  beaten 
two  volunteers,  and  the  "people  of  that 
place  "  were  ready  to  assault  the  Police  ia 
return,  "  but  had  been  with  difficulty  re- 
strained."  It  need  scarcely  be  pointed  out 
that  this  is  not  an  accurate  summary  of 
Ex.  95.  There  are  various  points  about 
the  appearance  of  Ex.  92  calculated  to  sug- 
gest a  doubt  whether  this  is  really  the 
correspondence  register,  as  kept  up  in  the 
regular  course  of  business.  No  abstract 
register  of  correspondence  issued  from  the 
Gorakhpur  Khilafat  Office  is  forthcoming; 
and  in  face  of  the  description  of  the  book 
Ex.  92  in  its  own  heading  we  are  not 
prepared  to  accept  the  belated  assertion  of 
Niaz  Ahmad  Arif  (P.  W.  No.  172)  that  this 
Exhibit  is  in  fact  the  only  register  main- 
tained at  that  office  for  correspondence  re- 
ceived and  correspondence  issued. 

In  considering  the  inference  to  be  drawn 
from  this  peculiar  state  of  the  evidence  we 
bear  in  mind  the  fact  that  no  official  or 
member  of  the  Executive  Committee  of  the 
Khilafat  at  Gorakhpur  is  now  on  his  trial 
before  us  ;  but  we  are  very  definitely  caUed 
upon  to  form  an  opinion  as  to  the  obje&ts 
with  which  the  National  Volunteers  assem- 
bled at  Durnri  Khurd  on  the  morning  of 
4th  of  February  and  aa  to  the  resolutions 
come  to  at  that  gathering  before  the  meet- 
ing proceeded  to  take  action  in  pursuance 


151 


of  the  same.    Looking  at  the  matter  from 
this  point  of  view,  we  feel  bound    to  re- 
cord our  opinion  that  the  whole  truth  has 
not  been  disclosed  in  tho  evidence  produc- 
ed  at  this  trial  as  to    the  communications 
which  passed  between  the  Executive  Com- 
mittee of  the  Khilafat  at  Gorakhpur  and 
the  local  leaders  of  the  National  Volunteer 
associations  in  the  neighbourhood  of  Chaura 
in  the  course  of  the  2nd    and  3rd  of  Feb- 
ruary 1922.    In  particular,  we  do  not  believe 
that  any  written  answer  was  ever  returned 
by  or  on     behalf    of  the    said    Executive 
Committee  to   the  communication  received 
from  Lai  Muhammad.     We  strongly    sus- 
pect, to  put  ifc  no  higher,  that   the  register 
of  correspondence  issued    from  that   office 
has  disappeared,  not  because  of    anything 
which   it  did   contain  but   because  of  what 
it   did  not  contain  ;    that   is  to    say,    be- 
cause no    entry    appeared    therein  of  any 
written  answer  to  Lai  Muhammad's  report. 
It  follows  that  an  oral  answer  was  returned 
and  that   it  was  of  .such  a  character    that 
those  responsible  for  it   could   not  venture 
to  reduce  it  to  writing.     Our  suspicions  on 
this  point   are  strengthened  by  certain  evi- 
dence, which  will  be  noticed  in  clue  course 
as  to  what  took  place    at  the    meeting    at 
Dumri       Khurd.      These       considerations 
warrant  us    in  putting    upon  Lai  Muhaiir 
mad's  letter  the  sinister  interpretation  of 
which  it    is   undoubtedly  susceptible.     In 
substance  and  in  effect  this  accused  report- 
ed  to  his  "office"  at  Gorakhpur    that  the 
local  volunteers  had  been  roused   by    the 
outrageous   conduct  of  the   Sub-Inspector 
of  Chaura  to    such   a    state  of  indignation 
that,   if  the    officials    would  only  give  the 
word,   they   were    prepared   to    teach   that 
officer,  and    the  Police  generally,  a  signal 
lesson  :  and  requested  that  some  one  should 
be  sent  down  to  look  into  the  matter. 

The  reply  to  this  communication  was, 
as  we  believe  and  have  already  said,  sent 
by  word  of  mouth.  The  positive  evidence 
as  to  its  purport  is  to  be  found  in  the 
depositions  of  one  or  two  "Khilafat "  wit- 
nesses, who  say  that  it  was  to  the  effect 
that  the  volunteers  should  be  patient.  If 
they  were  speaking  the  truth,  and  a  written 
answer  had  been  returned  to  this  effect, 
we  are  confident  that  either  the  writing 
itself  would  be  forthcoming,  or  reliable 
secondary  evidence  as  to  its  purport.  We 
are  driven  to  form  our  opinion  on  this 
point  from  the  evidence  as  to  what  actually 


152 


ABDULLAH  7).  EMPEROR. 


took  place   on  Saturday,  the  4th  of  Feb- 
ruary. 

From  early  morning  on  that  day  pre- 
parations were  made  at  Dumri  Khurd  for 
the  expected  gathering.  The  place  chosen 
was  a  threshing  floor  in  front  of  the  house 
of  the  accused,  Behari  (P<m).  The  local 
volunteers  arranged  the  ground,  sacking 
being  spread  to  provide  seating  accommo- 
dation for  the  central  group  of  leaders. 
Some  modest  provision  was  made  for  refresh- 
ments by  way  of  baskets  containing  raw 
sugar.  Flowers  were  collected  and  made 
into  garlands  for  the  adornment  of  those 
whom  the  assembly  might  particularly 
desire  to  honour.  From  about  seven  iu  the 
morning  a  steady  stream  of  volunteers 
began  to  flow  in.  There  is  evidence  scatter- 
ed about  the  record,  in  the  depositions  of 
witnesses  from  various  villages  within  a 
radius  of  several  miles  from  Dumri,  which 
shows  the  manner  in  which  these  men  had 
"been  summoned  by  messages  and  mustered 
in  little  groups  of  half  a  dozen  or  so, 
before  marching  for  the  appointed  rendez- 
vous. Harpal,  the  village  watchman  of 
Dumri  (P.  W.  No.  34),  had  received  instruc- 
tions beforehand.  He  watched  the  pro- 
ceedings until  two  or  three  hundred  men 
were  collected,  ascertained  from  the  general 
trend  of  the  conversation  that  the  intention 
was  to  march  on  the  Mundera  bazaar  and 
then  slipped  away  to  report  the  matter  at 
Chaura  Police  Station.  He  says  that  volun- 
teers were  still  -iroamiisir  in  when  he  left 
Dumri  Khurd.  The  approver  Sikhari  (P. 
W.  No.  1),  estimates  that  five  or  six  hund- 
red men  had  come  together  by  about  8  A.M. 
and  that  the  numbers  had  increased  to 
about  one  thousand  when  the  meeting  was 
brought  to  a  close  by  the  organized  body 
of  volunteers  setting  out  for  Chaura  Police 
Station.  So  far  as  we  have  been  able  to 
check  this  estimate  by  -the  evidence  of 
other  witnesses,  it  certainly  does  not  appear 
excessive;  we  are  satisfied  that  the  men 
who  set  out  from  Dumri  Khurd  for  Chaura 
Police  Station  were  at  least  one  thousand  in 
number,  and  may  well  have  been  fifteen 
hundred. 

For  the  proceedings  at  this  meeting, 
generally  spoken  of  in  the  evidence  and  in 
the  judgment  as  "the  Dumri  Sabha,"  we 
have  before  us  a  very  considerable  body  of 
evidence.  In  the  first  place,  we  have  the 
depositions  of  the  two  approvers,  Shikari 
and  Thakur.  Next  we  find  references  to 
this  matter  in  statements  made  under  s,  164 


(92  I.  0, 1926] 

of  the  Or.  P.  C,,  to  a  Magistrate,  before 
the  commencement  of  the  enquiry  pre- 
liminary to  commitment,  by  a  number  of 
accused  persons.  The  most  important  of 
these  are  the  statements  of  Ramrup  Barhai 
(Ex.  225;,  IT.;-  -..•••  Ahir  (No.  226),  Mahabir 
Saithwar  v\  •,  -'i*-,  and  Raghubir  Sunar 
(No.  251).  In  the  third  place,  we  find  more 
or  less  detailed  accounts  of  the  affair  from 
three  witnesses,  Jakat  Narain  Pande  (P.  W. 
No.  91),  Bhawani  Prasad  Tewari  (P.  W. 
No.  25)  and  Shankar  Dayal  Rae  (P.  W. 
No.  102).  It  is  quite  beyond  question  that 
these  three  men  were  present  at  the  occur- 
rences they  profess  to  describe.  The  first 
strikes  us  as  the  sort  of  vain  and  irres- 
ponsible busy-body  whom  one  so  often 
finds  thrusting  himself  to  the  front  in  con- 
nection with  some  political  or  social 
movement.  The  reception  he  met  with  on 
his  first  arrival  at  Dumri  is  enough  to  show 
that  the  peasantry  of  the  neighbourhood 
not  only  respected  his  caste  and  were 
inclined  to  take  him  at  his  own  valuation 
as  a  professor  of  religion  but  looked  upon 
him  as  a  person  of  some  .authority  in 
connection  with  the  non-co-operation  move- 
ment. We  see  no  reason  to  believe  that  he 
was  ever  accepted  as  such  by  the  organizers 
of  the  Congress  or  Khilafat  movement  in 
Gorakhpur  itself ;  nor  on  the  other  hand 
do  we  see  any  real  ground  for  regarding 
him  as  a  Police  spy,  though  he  was  accused 
of  being  one  by  indignant  volunteers  before 
the  meeting  at  Dumri  was  over.  His  own 
account  of  what  took  him  to  Dumri  is  that 
he  hastened  to  the  place  as  soon  as  he  heard 
what  was  going  on  because  he  had  formed 
a  low  opinion  of  the  character  of  local 
volunteers  and  was  persuaded  (from  what 
had  happened  at  Mundera  on  the  previous 
Wednesday)  that  they  were  going  to  get 
themselves  into  trouble  by  acting  contrary 
to  the  true  precepts  of  non-violence  as. 
laid  down  by  "  Mahatmaji "  Gandhi.  Ha 
naturally  tries  to  put  his  own  conduct  in; 
the  most  favourable  light,  and  we  are  not 
greatly  concerned  to  inquire  how  far  honest 
zeal  for  what  he  thought  right,  mingled* 
with  mere  curiosity  and  a  desire  to  gratify 
his  self-importance  in  determining  his  con- 
duct He  certainly  did  go  to  Dumri  and- 
he '  does  seem  to  have  exerted  himself,  to* 
the  best  of  his  ability,  to  prevent  mischief.1 
Bhawani  Prasad  is  a  land-holder  and« 
village  headman  of  Pokharbinda,  a  hamlet • 
which  had  sent  a  contingent  of  volunteers  > 
toDumri,  He  w^s  on  friendly  terms  with- 


t92  I.  0. 1826J 

Sub-Inspector,  Gupteshar  Singh  and  was 
sent  for  to  the  Police  Station  on  the  Satur- 
day morning.  He  was  relieved  to  find  the 
small  contingent  of  armed  Police  arriving 
from  Gorakhpur,  and  he  went  to  Dumri, 
on  the  Sub-Inspector's  suggestion,  to  see 
what  was  really  happening  and  to  warn 
the  volunteers  that  they  had  better  abandon 
whatever  enterprise  they  were  meditating, 
whether  against  Ohaura  Police  Station 
or  Mundera  bazaar,  especially  in  view  of 
this  re-inforcement  which  the  Police  had 
received.  Rae  Shankar  Dayal  is  a  resident 
of  the  Ballia  District  who  was  making  a 
living  in  Gorakhpur  out  of  District  Board 
contracts  and  a  contract  which  he  held  in 
connection  with  the  Mundera  bazaar.  It 
was  his  interest  in  this  matter  which  took 
him  to  Dumri  to  see  what  the  volunteers 
were  really  doing.  He  has  played  an 
ambiguous  part  in  this  trial  and  portions 
of  his  evidence  have  been  severely  com- 
mented on  by  the  learned  Sessions  Judge. 
We  are  satisfied  that  he  may  be  regarded 
as  a  witness  distinctly  friendly  to  the  accus- 
ed persons. 

The  effect  of  this  evidence  as  a  whole  is 
to  corroborate  the  account  of  the  meeting 
at  Dumri  given  by  the  approver  Sikhari, 
at  least  iu  its  broad  outlines,  sufficiently 
to  enable  us  to  feel  certain  of  its  straight- 
forwardness and  general  accuracy.  Of  the 
present  accused,  the  men  who  took  the 
lead  were  Nazir  Ali  and  Lai  Muhammad  ; 
also,  in  a  lesser  degree,  Shyam  Sunder  and 
Abdulla  alias  Sukhi;  with  these  must  be 
placed  Sikhari  himself,  a  man  of  the  name 
of  Indarjit  whom  the  Police  had  not  been 
aole  to  arrest  up  to  the  time  of  the  trial  in 
the  Court  below  and  an  ascetic  with  a  pair 
of  tongs,  an  article  commonly  carried  by 
religious  mendicants  of  a  certain  class.  He 
is  frequently  referred  to  fn  the  evidence ; 
and  was  probably  a  mischief-maker  from  a 
distance,  No  one  seems  to  know  his  name. 
Jagat  Narayan  Pande  and  Shankar  Dayal 
were  cordially  received  on  their  arrival, 
garlanded  and  permitted  to  address  the 
meeting.  The  latter  was  apparently  mis- 
taken for  some  emissary  from  head-quarters 
whom  the  volunteers  were  expecting,  under 
the  description  of  "  the  Ahrauli  Babu." 
Both  tried  to  persuade  the  gathering  to 
break  up  and  to  abandon  their  expressed 
intention  of  proceeding  in  a  body  to  Ohaura 
Police  Station  and  Mundera  bazaar.  Jagat 
Narayan  especially  exerted  himself  in  this 
sense,  appealing  to  the  precepts  of  "Gandhi- 


ABDULLAH  V.  EMPEROR. 


153 


ji "  and  to  the  fact  that  armed  Police 
had  reached  Chaura.  He  was  violently 
opposed  by  Nazar  Ali,  ako  by  Lai  Muham- 
mad, Shyam  Sundar  and  Abdulla  alias 
Sukhi.  He  was  told  that  he  was  no  better 
than  a  Police  spy,  ridiculed,  abused  and 
finally  turned  out  of  the  meeting  \\ith 
contumely.  Eventually  Nazar  Ali  carried 
the  entire  meeting  with  him  in  a  resolution 
that  they  were  to  march  in  a  body,  fiist 
to  Chaura  Police  Station,  to  ask  the  Sub- 
Inspector  why  he  had  beaten  two  volun- 
teers, and  thence  to  Mundera  bazaar  to 
stop  the  sale  of  intoxicants,  of  meat  and  of 
fish.  These  objects  were  to  be  pursued  un- 
flinchingly and  carried  through  in  the 
teeth  of  any  opposition  that  might  be  en- 
countered. No  one  was  to  start  on  the  ex- 
pedition who  was  not  prepared  to  venture 
his  life  on  the  hazard.  When  challenged 
to  do  so  by  Nazar  Ali,  all  those  present 
bound  themselves  by  oaths  to  persevere 
to  the  end.  Anyone  who  turned  back  after 
setting  forth  with  the  rest  was  to  be  con- 
sidered, if  a  Hindu,  to  have  eaten  cow's 
flesh,  if  a  Musalman,  the  flesh  of  swine. 
What  may  be  a  coarse  variant  of  the  oath, 
but  is  more  likely  to  be  a  description  of 
any  defaulter,  is  mentioned  by  Sikhari 
as  particularly  applicable  to  anyone  "who 
should  retreat  from  before  the  bullets  at 
the  thana"  The  assembly  was  a  large 
one  and  it  is  easily  conceivable  that  more 
than  one  form  of  oath  was  used.  The 
coarser  one,  be  it  oath  or  description,  was 
abhorrent  in  its  terms  and  might  well 
appeal  more  particularly  to  those  elements 
in  the  crowd,  drawn  from  the  lowest 
strata  of  society,  which  are  abundantly 
represented  in  the  list  of  appellants  before 
us. 

On  all  the  points  hitherto  set  forth  the 
evidence  as  to  the  proceeding  at  this 
Dumri  Sabha  is  clear,  consistent  and  over- 
whelming. There  remains,  however,  one 
detail  which  calls  for  separate  consideration. 
When  Sikhari  made  his  first  statement  be- 
fore a  Magistrate  on  the  16th  of  March  1922, 
he  said,  speaking  of  a  late  stage  of  the 
meeting  "In  the  meantime  two  Muham- 
madans,  one  of  whom  was  wearing  spectacles, 
came  there.  I  do  not  know  where  they 
lived.  They  took  out  a  piece  of  paper  and 
began  to  read  it.  Then  they  began  to  sing, 
la  this  song  the  names  of  Muhammad  Ali 
and  Shaukat  Ali  were  uttered,  again  and 
again,  and  it  was  about  their  imprison- 
ment. After  singing  the  song  they  went 


154 


ABDULLAH  V.  BMPER06. 


away  to  the  west.  Then  we  got  up  and  pass- 
ing along  the  raised  borders  of  the  fields 
reached  the  road."  Jn  his  evidence  at  the 
trial,  after  speaking  of  the  ejection  of  Pandit 
Jagat  Narayan  from  the  meeting  and  the 
departure  of  Rai  Shankar  Dayal--it  is 
curious  to  note  that  he  ignores  Bhawani 
Prasad  altogether-— Sikhari  goes  on  to  state 
— "Two  other  men  came,  one  wearing  green 
glasses  who  was  of  my  stature,  but  older, 
about  32,  who  from  his  words  appeared  to 
be  a  Musalman;  the  other  was  younger  than 
I — I  cannot  say  whether  he  was  a  Hindu  or 
a  Musalman.  The  man  with  glasses  began 
to  read  from  a  slip  of  paper  singing  'we  are 
going  for  two  years  each  '  We  understood 
going  to  jail.  Then  Nazar  Ali  stood  and 
publicly  administered  an  oath." 

On  the  13th  of  March  1922,  the  accused 
Bhagwan  Ahir  made  a  statement  before  a 
Magistrate,  which  contains  the  following 
passage: — "Then  two  Muhammadans  wearing 
spectacles  came  there.  They  began  to  sing 
a  song  describing  the  deeds  of  Shaukat 
Ali  and  Muhammad  Ali.  On  hearing  the 
song  all  became  angry  and  said,  "Come,  we 
will  all  go  to  the  thana." 

Four  days  later  the  accused  Mahabir,  son 
of  Lalsa  Saithwar,  in  a  statement  similarly 
recorded,  told  the  Magistrate: — "Two  Musal- 
mans  came  there.  One  of  them  was  wear- 
ing spectacles  and  the  other  had  a  beard. 
They  came  there  and  began  to  sing.  After 
this  all  the  volunteers,  who  were  about 
three  thousand,  got  up  and  started  from 
there  crying  out,  Mahatma  Gandhi  ki  jai" 

The  accused  Raghubir,  son  of  Jaddu,  is 
a  sunar  by  caste  a  man  of  higher  social 
position  than  the  bulk  of  the  accused.  On 
the  4th  of  March  1922,  he  told  a  Magistrate 
as  follows: — "Lectures  were  delivered. 
There  was  a  Babu  who  in  his  lecture  said 
that  we  should  not  go  either  to  Mundera 
bazaar  nor  to  the  Police  Station.  If  we 
went  in  a  body  there  would  be  a  riot.  But 
no  one  listened  to  him.  A  Miyan,  whose 
name  and  residence  I  do  not  know,  deliver- 
ed a  lecture  and  asked  his  hearers  whether 
they  were  ready  to  die.  They  replied  that 
they  were  ready.  Then  all  started  from 
there." 

It  would  be  quite  possible  for  us  on  the 
evidence  which  we  have  already  reviewed, 
to  record  our  finding  as  to  the  nature  of  the 
agreement  come  to  by  the  volunteers  as- 
sembled at  Dumri  Khurd  and  whether  that 
agreement  did  or  did  not  amount  to  a 
criminal  conspiracy.  We  think  it  better, 


[92  I.  0.  1926J 

however,  to  proceed  with  the  narrative  of 
events.  The  evidence  as  to  what  the  volun- 
teers agreed  amongst  themselves  to  do  can- 
not be  altogether  dissociated  from  the  evi- 
dence of  what  they  actually  did.  We  shall 
have  to  consider,  in  connection  with  certain 
statements  made  by  the  approvers  Shikari 
and  Thakur,  if  their  testimony  is  or  is 
not  borne  out  by  the  subsequent  conduct 
of  the  volunteers. 

Up  to  a  certain  point  there  is  no  room 
for  controversy  as  to  the  course  of  events. 
When  the  volunteers  left  the  threshing-floor 
at  Dumri,  they  made  their  way  along  the 
field  boundaries  to  the  broad  unmetalled 
road  which  runs  from  Gorakhpur  to  Deoria, 
by  going  eastward  along  which  they  would 
come  to  the  Ghaura  Police  Station,  rather 
less  than  two  miles  distant.  On  this  road 
the  men  were  got  into  some  sort  of  rough 
formation.  The  services  of  drill-instructor 
Bhagwan  were  requisitioned  for  this  purpose. 
Flags  which  had  been  prepared  beforehand 
were  sent  to  the  front  and  the  crowd  began  to 
move  under  the  guidance  of  their  "officers," 
who  halted  them  and  moved  them  on  again 
by  the  sound  of  whistles.  They  were  in  an 
excited  mood,  continually  raising  trium- 
phant cries  and  acclamations.  As  a  point 
roughly  about  half  way  to  Chaura  they  came 
toBhopa  bazaar,  where  a  road  branches 
off  to  the  left  that  is  to  say  in  a  northerly 
direction,  towards  a  Railway  crossing,  be- 
yond which  it  leads  directly  to  Mundera 
bazaar.  This  was  the  route  which  the  crowd 
would  have  followed  if  they  had  not  resolv- 
ed to  visit  Chaura  Police  Station  before 
going  to  Mundera.  At  this  point  they  were 
met  by  the  witness  Awadhu  Tewari  a  servant 
of  Babu  Sant  Bakhsh  Singh,  the  proprie- 
tor of  the  Mundera  bazaar.  The  evidence 
of  this  witness  as  to  what  he  saw  at  Bhopa 
corroborates  Sikhari.  The  approver  says 
that  by  that  time  the  crowd  had  swollen  to 
a  total  of  2,501)  or  3,OUU  men.  Awadhu 
puts  the  number  considerably  higher,  but 
is  probably  exaggerating.  He  says  the 
crowd  came  towards  him  carrying  flags  and 
raising  triumphant  cries.  The  leaders  ap- 
peared to  him  to  be  the  accused  Nazir  Ali 
and  Shyam  Sunder  and  the  approver 
Sikhari.  He  gives  an  interesting  and 
obviously  genuine  account  of  his  conversa- 
tion with  them,  when  he  endeavoured  to 
persuade  them  to  turn  back  or  to  disperse. 
Nazar  Ali  spoke  with  great  insolence  and 
remarked  in  an  ironical  tone  that  he  was 
going  on  to  the  Police  Station  to  get  a  beat* 


[92  I.  0. 1826J 

!ng.  He  raised  his  flag  and  the  crowd 
moved  on,  still  crying  out  "Victory".  The 
witness  hurried  to  the  Police  Station  and 
told  the  Sub-Inspector  what  he  had  seen.  In 
the  meantime  the  crowd  moved  on  as  far 
as  a  building  often  referred  to  in  the  'evi- 
dence as  the  factory  of  Lala  Halwai.  This 
brought  them  close  to  the  Police  Station 
enclosure  which  lies  in  an  angle,  where  a 
short  length  of  metalled  road  turns  north- 
ward from  the  highway  between  Gorakhpur 
and  Deoria  and  leads  to  a  Railway  crossing 
and  the  bazaar  of  Ohaura,  beyond  which  it 
proceeds  to  Mundera  bazaar.  The  Police 
Station  enclosure  extends  practically  from 
the  Gorakhpur  Deoria  highway  on  the  south 
to  the  Railway  crossing  and  the  line  of  the 
Railway  on  the  north  side.  The  entrance 
to  the  Police  Station  is  on  the  east,  that  ia  to 
say  opening  on  to  the  short  length  of  metal- 
led road  leading  northwards  from  the  high- 
way to  the  level  crossing.  Opposite  this 
entrance,  and  across  the  metalled  road,  were 
a  few  buildings,  including  the  private 
quarters  of  the  Sub-Inspector  in  charge  of 
the  Police  Station.  According  to  Sikhari 
the  crowd  was  continuously  increasing  in 
numbers  as  they  moved  from  Bliopa  bazaar 
towards  fhaura.  We  unhesitatingly  accept 
his  evidence  as  proving  that  when  the  crowd 
came  to  a  halt  beyond  Lala  Halwais  factory 
it  was  over  3,000  strong.  Sikhari  says  "they 
were  in  ranks  •  •  •  "  '  ;  the  road  on  either 
side."  He  adas  :— •  VV  ueu  we  came  to  the 
factory  we  knew  there  was  danger  and  that 
there  was  a  guard  with  guns  at  the  thana 
(Police  Station).  We  were  ready  to  sacrifice 
our  lives  We  saw  that  the  darogha(ihe  Sub- 
Inspector  in  charge  of  the  Police  Station, 
?.  e.,  Gupfceshar  Singh)  was  standing  with 
Police  and  chaukidars.  We  supposed  he 
was  standing  there  to  beat  us.  We  went 
on  because  we  considered  ourselves  to  be 
in  *•  .  numbers;  and  what  could 

he  uu  iu  u».  Vv  e  ought  perhaps  to  explain 
that  the  vernacular  word  used  by  the  wit- 
ness, which  had  been  translated  "to  beat/' 
is  a  woid  of  wide  -teni  lien  MOO.  meaning 
also  "to  strike"  ande'.'.:i!  "lo  M!|  "  it  would 
undoubtedly  include  striking  with  bullets 
or  other  missiles  as  well  as  the  infliction  of 
blows  in  hand-to-hand  combat. 

To  resume  our  narrative:  at  this  point  the 
witness  Sardar  Harcharan  Singh  came  for- 
ward from  the  direction  of  the  Police  Sta- 
tion to  meet  the  crowd.  A  conference  took 
place  between  him  and  their  leaders.  He 
estimates  the  number  of  the  crowd  at  three 


ABDULLAH  V.  EMPEROR, 


155 


to  four  thousand.  Their  leaders  appeared 
to  him  to  be  Nazar  Ali,  Shyam  Sunder, 
Sikhari  and  the  unknown  ascetic  carrying 
a  pair  of  tongs  who  has  been  referred  to 
elsewhere.  He  found  the  crowd  in  a  singular 
state  of  fierce  excitement,  He  says  their 
leaders  addressed  him  in  a  tone  which  was 
anything  but  respectful.  They  told  him 
plainly  that  they  were  resolved  at  all  costs 
to  go  to  the  Chaura Police  Station  and  thence 
through  the  Chaura  bazaar,  through  the 
village  of  Bale,  to  Mundera  bazaar.  The 
witness  persuaded  them  to  wait  while  he 
went  to  speak  with  the  Sub-Inspector.  It 
must  be  remembered  that  the  Police  occupi- 
ed at  this  moment  a  position  which  was 
strategically  sound.  They  were  drawn  up 
across  the  highway,  the  breadth  of  which 
would  presumably  be  commanded  by  the 
muskets  of  the  armed  Police.  These  were 
the  men  on  whom  Sub-Inspector  Gupteshar 
Singh  would  have  to  rely  in  the  event  of 
an  encounter.  The  four  or  five  men  of  the 
Civil  Police  whom  he  seems  to  have  kept 
about  him  would  scarcely  count  for  any- 
thing as  a  fighting  force.  lie  had  with  him 
also,  so  far  as  we  can  gather,  40  or  50 
chaukidars  or  village  watchmen,  being  in 
part  men  whom  he  may  have  called  in  to 
the  Police  Station  that  morning  in  anticipa- 
tion of  trouble,  and  in  part  men  whose  turn 
it  was  to  go  to  the  Police  Station  on  that 
day  to  draw  their  pay.  These  men  were 
efficiently  enough  armed  for  an  encounter 
at  close  quarters  with  the  brass-bound  lathis 
of  stout  bamboo  which  formed  part  of  their 
official  equipment.  They  were,  however,  a 
mere  collection  of  village  watchmen,  wholly 
unused  to  acting  together  in  numbers.  The 
records  of  dacoity  cases  in  this  Court  afford 
abundant  evidence  of  the  slight  reliance 
which  can  be  placed  upon  an  assemblage 
of  village  watchmen  as  a  fighting  force. 
On  the  other  hand  no  one  who  examines 
this  record  can  fail  to  realise  something  of 
the  impression  produced  on  the  minds  of 
those  who  saw  the  crowd  at  close  quarters, 
not  merely  by  their  numbers  but  by  the 
spirit  which  animated  them.  Bhawani 
Prasad  after  seeing  them  at  Dumri  advised 
the  Sub-Inspector  to  bow  his  head  to  the 
storm  and  let  the  day  go  by.  He  evidently 
believed  that  successful  opposition  to  the 
march  of  the  volunteers  was  out  of  the 
question  ;  that  it  would  be  better  to  let 
them  work  their  will,  for  that  one  day,  in 
Mundera  ba/.aar  and  to  see  what  could  be 
done  subsequently  ia  the  way  of  re-estab- 


156  ABDULLAH 

lishing  order.  Sardar  Harcharan  Singh  was 
deeply  perturbed.  We  do  not  think  that 
anything  in  his  conduct  bears  out  the  im- 
putations of  treachery  and  double-dealing 
which  have  been  cast  upon  him.  He  return- 
ed to  the  Sub-Inspector,  after  his  interview 
with  the  leaders  of  the  volunteers,  with  the 
conviction  plainly  on  his  mind  that  there 
was  no  stopping  these  men  if  they  moved 
forward,  as  they  were  evidently  determined 
to  do.  We  take  it  that  there  was  percepti- 
ble in  the  spirit  of  this  crowd  that  sort  of 
magnetic  force  which  the  ancient  Greeks 
ascribed  to  supernatural  influence,  and 
which  has  often  been  noted  as  emanating 
from  an  army  destined  to  be  victorious  in 
an  impending  encounter.  Psychologically 
it  has  its  basis  in  the  recognition  on  the 
part  of  each  member  of  the  force  that  those 
around  him  are  animated  by  the  same  reso- 
lution which  he  feels  in  himself :  he  knows 
that  if  he  elects  to  go  forward,  he  will  not 
go  forward  alone.  Sardar  Harcharan  Singh 
believed,  that  he  could  exercise  sufficient 
influence  over  the  crowd  and  its  leaders  to 
ensure  their  marching,  peacefully  and  with- 
out disorder,  past  the  Police  Station,  if  they 
were  allowed  to  proceed  in  this  way  towards 
their  destination  at  Mundera  bazaar.  He 
apparently  received  some  assurance  to 
this  effect  from  the  leaders.  He  says  that, 
in  communicating  his  views  to  the  Sub- 
Inspector,  he  suggested  that  it  would  be 
easier  4<to  deal  with  the  crowd"  after  they 
had  passed  the  Police  Station. 

If  Sub-Inspector,  Gupteshar  Singh  had 
followed  resolutely  the  plain  dictates  of 
duty,  if  he  had  continued  to  bar  the  road 
against  the  advance  of  the  crowd  and  had 
offered  them  a  reasonable  time  in  which  to 
disperse,  under  threat  of  opening  fire  in  the 
event  of  their  refusal,  his  chances  would 
have  depended  on  the  possible  intimidating 
effect  of  two  or  three  volleys  delivered  at 
close  quarters  into  the  crowd  massed  along 
highway  and  "over-flowing,"  as  Shikari 
says,  "the  road  on  either  side/'  If  the 
crowd  broke  in  panic,  the  miscellaneous 
force  of  chaukidars  might  have  been  useful 
enough  in  completing  their  dispersal,  and 
pjssibly  in  arresting  their  leaders.  If  the 
resolution  of  the  crowd  held  firm,  we  very 
much  doubt  whether,  with  the  force  and 
with  the  weapons  at  his  disposal,  Sub- 
laapector  Gupteshar  Singh  could  have 
prevented  the  dispersal  of  his  force  by 
shaer  weight  of  numbers,  their  isolation 
and  subsequent  massacre. 


t;.  BMPBKOE.  [92  I.  C.  1ȣ6] 

The  matter  was  not  put  to  the  test.  Thd 
unfortunate  Sub-Inspector  is  not  to  be 
blamed,  or  at  any  rate  to  be  severely  blam- 
ed, if  his  resolution  gave  away.  He  had  to 
consider,  not  only  the  chances  of  an  actual 
conflict,  but  the  subsequent  justification  of 
his  own  action  against  the  flood  of  adverse 
criticism  which  would  undoubtedly  have 
been  let  loose  upon  him.  He  accepted  the 
advice  of  Sardar  Harcharan  Singh,  with- 
drew his  force  from  across  the  highway 
and  fell  back  within  the  Police  enclosure. 
From  that  moment  he  and  those  with  him 
were  doomed.  The  crowd  so  far  kept  their 
express  or  implied  compact  with  Sard  ir, 
Harcharan  Singh,  that  they  moved  in  more 
or  less  orderly  formation  along  the  highway 
to  the  south  of  the  Police  Station  and, 
turning  to  their  left,  began  to  file  p*9t  the 
thana  gate  towards  the  Railway  crossing; 
and  on  beyond  into  the  Chaura  bazaar. 
From  this  point  we  have  to  deal  Avith 
evidence  about  which  there  has  been  some 
controversy.  We  think  it  useless  to  enter 
upon  a  detailed  analysis  of  all  the  items  of 
evidence  upon  which  our  conclusions  are 
founded.  Certain  matters  of  detail  must 
remain  in  doubt ;  but  as  to  the  main  course 
of  events  we  believe  it  possible  to  formulate 
conclusions  quite  sufficient  for  the  deter- 
mination of  all  the  issues  set  before  us. 

It  must  be  remembered  that,  when  Nazar 
Ali  and  Lai  Muhammad  called  the  volun- 
teers together,  they  had  not  done  so  merely 
in  order  to  carry  out  their  previous  threats 
against  the  vendors  of  intoxicants,  of  meat 
and  of  fish  in  the  Mundera  bazaar.  They 
had  got  together  their  men  on  the  under- 
standing that  they  were  to  go  to  Chaura 
Police  Station  and  have  it  out  'with  the 
Sub-Inspector  about  the  matter  of  the 
beating  of  the  volunteers.  We  know  that 
highly  exaggerated  statements  had  been 
put  about  on  thi^  subject.  Accordingly, 
while  numbers  of  the  crowd  were  continu- 
ing on  their  way  towards  the  Rail wav.  cross- 
ing and  Mundera  bazaar,  some  of  their 
leaders,  with  a  considerable  body  of  follow- 
ers, came  to  a  halt  in  front  of  the  open 
gate  of  the  Police  Station  and  demanded  to 
see  the  Sub-Inspector.  Matters  about  which 
there  has  been  considerable  controversy 
are  the  numbers  of  the  men  who  thus  came 
to  a  halt  and  the  question  whether,  as  the 
movement  of  the  crowd  continued,  there 
was  ever  at  any  moment  a  perceptible 
interval  of  space  between  the  group  which 
was  halted  iu  front  of  the  Police  Station  and 


[92  L  0.1926]  ABDULLAH 

the  rest  of  the  crowd.  It  cannot  appear 
surprising  to  any  one  who  endeavours  to 
form  a  mental  picture  of  the  scene  that 
ttye  available  evidence  on  question  of 
this  sort  should  be  conflicting.  We  are 
prepared  to  believe  that  the  number  of 
those  who  definitely  halted  in  front  of  the 
thana  gate,  to  have  it  out  with  the  Sub- 
Inspector,  did  not  exceed  three  hundred. 
Events  moved  rapidly  :  a  crowd  of  three  to 
fdur  thousand  men  cannot  get  along  very 
fajst  by  a  narrow  street  and  over  a  Railway 
crossing;  we  very  much  doubt  whether 
ttiere  was  at  any  moment  a  clear  interval  of 
s£mce  between  those  who  were  still  moving 
oifi  northwards  and  those,  who,  whether  of 
8<at  purpose  or  out  of  mere  curiosity,  linger- 
ed! about  the  eastern  front  of  the  Police 
8  tation,  The  evidence  satisfies  us  that  the 
demand  for  an  explanation  in  the  matter  of 
tide  beating  of  a  volunteer,  or  of  volunteers, 
w^as  made  in  insolent  and  over-bearing  tones 
atid  that  Sub-Inspector,  Gupteshar  Singh 
t£lhered  to  the  policy  which  he  had  adopted 
£  y  speaking  the  crowd  fair.  He  told  them 
ja.at  the  man  whom  he  had  beaten  (the 
of  reused  Bhagwan)  was  not  a  brother  of 
wiieirs;  that  he  was  a  Government  pension- 
t  and  might,  therefore,  fairly  be  regard- 
coij  as  subject  to  his  (the  Sub-Inspector's) 
Thuthority.  There  are  statements  here  and 
iinere  on  the  record  which  attribute  to  the 
racub-Inspector  words  and  expressions  of 
?etiore  abject  apology.  Whatever  he  said, 
°>has  remarks  were  received  by  the  crowd, 
reot  merely  with  satisfaction,  but  with 
insolent  and  .mocking  triumph.  Numbers 
o.<£  witnesses  depose  to  a  coarse  jest  which 
p  assed  from  mouth  to  mouth  in  the  crowd, 
nb  doubt  with  slight  variations  of  form, 
ascribing  abject  terror  to  the  Sub-Inspector 
personally,  to  the  Police  generally  and 
even  to  that  abstract  entity  referred  to 
as  "the  Government."  Along  with  this 
c&me  a  derisive  clapping  of  hands,  similar 
t<!>  that  which  had  driven  Pandit  Jagat 
I^arayan  from  the  assembly  at  Dumri. 
Some  of  the  crowd  which  had  halted  by 
the  Police  Station  gate  began  to  move 
northwards,  but  we  are  quite  satisfied  that 
the  gateway  was  still  beset  by  numbers  of 
the  crowd  when  the  patience  of  the  much 
tried  Sub-Inspector  gave  way,  The  man 
is.  dead,  and  we  shall  never  know  with 
certainty  what  was  passing  in  his  mind. 
We  can  well  believe  that  he  was  roused  to 
fi-Ager  by  the  taunts  of  the  crowd,  their 
course  jest  aud  their  derisive  hand-clapping. 


r.  EMPEROR. 

It  is  quite   conceivable,  however,  that  it 
was  precisely  these  taunts  which  brought 
home    to   him    the    disadvantages    of  the 
position  into  which  he  had  allowed  himself 
to  drift.    After  all,  the  armed  guard  had 
been  sent  out,  not  to  defend  him  personally, 
but  in  order  that  he  might  use  it  to  pro- 
tect the  licensed  vendors  and  other  shop- 
keepers  of    the  Mundera    bazaar    against 
terrorism  and  mob  violence.    The  organised 
crowd  of  volunteers  was  now  moving  steadily 
on    towards    Mundera,     while    the     Sub- 
Inspector  himself  was  practically  blockaded 
inside    his    own    Police    Station    by     the 
crowd  which  still  hung    about  the  gateway 
If  the  volunteers  achieved  their  threatened 
purpose  in  Mundera  that  day,    and    still 
more  in  the  not  improbable  event  of  the 
baser  elements  of  the  crowd  getting  out  of 
hand  there  and  plundering  shops  or  the  like 
he  would  have  to  answer  to  his  superiors 
for  the  remissness  by  which  he  had  allowed 
these  things    to    happen.      He    may    well 
have  felt,  and  we  think  that  in  all  human 
probability  he  did  feel,  that  the  first  and 
most  urgent  duty  incumbent  upon  him  at 
that  moment  was  to  recover  his  own  free- 
dom of  action  by  clearing  the  road  immedi- 
ately in  front  of  the  Police  Station.      He 
ordered  a  number  of  chaukidars  forward 
for  this  purpose.      As  might  be  expected 
the    evidence    ivsfanlinir    the     brief    and 
confused  scene  which  followed  is  somewhat 
conflicting.    The  crowd,  undoubtedly,  scat- 
tered before  the  advance  of  the  chaukidars^ 
there  are  witnesses  who  speak    of  them  as 
running  in   different    directions.    In     the 
main,  however,  the  natural  tendency  of  the 
crowd  would  be  to  press  northward  towards 
the    Railway  crossing,  that  is  in  the  direc- 
tion of  their  own  re-inforcements.    Hence 
we  have  some  of  the  witnessess  who  speak 
of  the  chaukidars  as  driving    the  crowd  to- 
wards the  Railway  crossing,  which  would  in 
itself  be  a  futile  thing  for  the   Police  to 
have    done.     What  precise  degree  of  viol- 
ence   was    used  by    the  chaukidars   it   is 
impossible  to  determine.  Sardar  Harcharan 
Singh,  who  was  in  as    good  a  position   to 
observe  what  happened  as  any  other  witness 
will  not  admit  that   the  chaukidars  actual- 
ly struck  any  one:  he  describes  them  as 
thumping  the   ends  of  their  lathis  on  the 
ground,  which    is    a  well-known  and  fre- 
quently adopted  method  of  breaking   up 
or  moving  on,  a  crowd  by  threatening  them 
with  painful,   but  not  serious,  injury    to 
their  feet,    There  is  no  doubt  a  good  deal 


158 


ABDULLAH  v.  EMPEROR. 


[92 1.  0. 1926] 


of  evidence  to  the  effect  that  some  of  the 
chaukidars  "beat11  some  of  the  volunteers, 
and  we  are  prepared  to  take  it  that  blows 
were  struck.  What  seems  to  us  the  one  cru- 
cial fact  which  stands  outin  plain  relief  from 
the  evidence  is  that  the  crowd  generally, 
and  more  particularly  the  volunteers  who 
constituted  the  back-bone  of  the  crowd  and 
the  leaders  of  those  volunteers,  were  pre- 
pared beforehand  for  just  such  aeon  ringen- 
cy.  As  the  cry  was  passed  along  that  the 
chaukidars  were  beating  the  volunteers, 
whistles  were  sounded  and,  upon  this  pre- 
concerted signal,  the  whole  crowd  swung 
back  upon  the  Police  Station.  The  men 
spread  themselves  out  along  the  Railway 
line,  arming  themselves  with  kankur  and 
brick-bats  from  the  ballast,  which  missiles 
were  also  carried  down  towards  the  eastern 
front  of  the  Police  Station.  A  steady  hail 
of  missiles  began  to  overwhelm  the  scanty 
Police  force,  already  disorganised  and 
manoeuvred  into  an  untenable  position. 
The  firing  of  the  first  volley  in  the  air  was 
met  by  aery  that  "Mahatmaji  Gandhi"  was 
working  miraculously  in  favour  of  the  volun- 
teers and  was  turning  the  bullets  to  water. 
We  have  plenty  of  evidence  on  this  record 
as  to  the  wide-spread  belief  in  this  gentle- 
man's miraculous  powers.  We  have  no 
doubt  that  such  a  cry  was  raised  and  that 
it  put  the  finishing  touch  to  the  resolution 
of  the  mob.  When  the  Police  began  to  fire  in 
earnest,  and  two  of  the  rioters  had  been  shot 
down  and  others  wounded,  the  only  result 
was  to  inflame  this  resolution  into  fury. 
What  followed  has  been  already  told. 

In  the  light  of  these  events  we  must 
now  go  back  to  the  question,  what  was  it 
that  the  volunteers  assembled  at  Dumri 
agreed  to  do  ?  The  case  laid  before  us  by 
the  defence  may  be  fairly  summed  up  as 
follows.  The  agreement,  undoubtedly,  was 
that  the  volunteers  should  go  first  to 
Chaura  Police  Station  and  thence  to  the 
Muudera  bazaar.  At  the  former  place  they 
were  to  submit  to  Sub  -Inspector,  Gupteshar 
Singh  a  sober  and  dignified  remonstrance 
against  his  illegal  conduct  in  n--£!il'iMLr 
individual  volunteers.  They  were  to  offer 
themselves  to  him  for  arrest  in  a  body,  if 
he  was  prepared  to  act  upon  the  view  that 
under  the  order  of  Government  every  en- 
rolled volunteer  was  ipso  facto  liable  to 
arrest  and  prosecution.  When  this  piece 
of  business  was  satisfactorily  settled,  they 
were  to  move  on  to  Mundera  bazaar  and 
there,  by  peaceful  persuation  exercised  to- 


wards the  licensed  vendors  of  intoxicating 
liquor  and  drugs,  and  towards  any  persons 
whom  they  might  find  attempting  to  pur- 
chase the  same,  put  a  stop  to  the  public 
sale  of  these  harmful  intoxicants.  They 
were  at  the  same  time  to  stop  the  sale  of 
meat  and  of  fish,  either  absolutety  or  un- 
less  the  vendors  submitted  to  the  sweeping 
reduction  in  price  of  which  we  have  already 
spoken.  As  a  matter  of  fact  this  latter 
alternative  cannot  be  seriously  considered. 
Everyone  must  have  known  that  meat  and 
fish  would  not  be  sold  at  the  price  suggest- 
ed by  the  volunteers  and  the  idea  of  obtain- 
ing meat  and  fish  at  reduced  prices  had 
by  this  time  been  wholly  superseded  by  the 
idea  of  punishing  the  vendors  of  these  com- 
modities in  Mundera  bazaar  for  their  con- 
tumacy by  closing  their  shops  altQgether. 
All  the  evidence  on  the  point  is  simply  and 
plainly  to  the  effect  that  the  volunteers  were 
to  stop  the  sale  of  meat  and  of  fish. 

On  this  the  first  comment  we  have    to- 
make  is,  that  the   very  idea  of  a  body  oft 
3,000  men  or  more  controlling  the  shops' 
in  the  Mundera  bazaar  by  means  of  peace-f 
f  ul  persuasion  is  on  the  face  of  it  almostf 
grotesque.    Whatever  may  be  said    in  de-* 
fence  of  peaceful  picketting,    when  under-t 
taken  in  the  market  of  a    large  town  by  in-3 
dividuals,  or  by  small    groups    of  earnest^ 
and   enthusiastic  men  or   women,  has  no- 
application  whatever  to  the  proposed  flood- 
ing of  a  small  bazaar  like  Mundera  by  aF 
body  of  men  whose  mere    presence  there- 
would  put  a  stop    to  all    business  whichf 
could  only  be  carried  on  with  their  consent^ 
and    indeed  with  their  active    assistance! 
Secondly  we  cannot  deal  with  the  question 
of  the    object  of  the  volunteers  in   moving 
on  Mundera  bazaar  without  taking  into  con- 
sideration the   events  of  the  previous  Wed- 
nesday.   The  expedition  of  Saturday,  Feb- 
ruary 4th,   was  in  plain  fulfilment  of  the 
threats  which  had  been  used  by  Nazar  All 
and  other  leaders  of  the  volunteers  on  the 
previous  market  day.    So  far  as  this  part  of 
the  case  is    concerned,   we  have  no  doubt 
that  the  agreement  come  to  at  Dumri  to 
stop  the  sale  of  intoxicants,    of  meat  and  of 
fish  in  the  Mundera  bazaar  was,  under  the 
circumstances,  an  agreement  to  commit  au 
offence  punishable  with  rigorous  imprison- 
ment for  two  years  at  l&ait,  namely,  tha 
otTenaa  of    criminal     intimidation    under 
s.  505,  Indian  Penal  Code. 

As  regards  the  visit  to    Ctiaura    Police 
Station,  it  may  perhaps  be  necessary  to  dish  - 


[92  I.  0. 1926]  ABDULLAH 

tingttish  between  the  intention  of  those 
who  organised  the  movement  and  the  pur- 
pose of  the  great  mass  of  the  crowd  who 
gave  their  adhesion  to  the  same,  Lai 
Muhammad,  Nazar  Ali  and  those  who  were 
with  them  had  used  very  exaggerated 
versions  of  the  Sub-Inspector's  violence  to- 
wards the  volunteers  in  order  to  get  to- 
gather  the  largest  possible  gathering  of 
their  supporters.  They  were  taking  them 
to  Chaura  for  the  avowed  purpose  of  ask- 
ing the  Sub-Inspector  why  he  beat  volun- 
teers. To  the  minds  of  the  great  majority 
of  the  crowd  this  expression,  we  have  no 
doubt,  carried  very  much  the  same  signifi- 
cance as  that  conveyed  by  the  correspond- 
ing English  phrase  in  the  historic  rhyme, 
which  tells  how  the  Cornish  men  proposed 
"to  know  the  reason  why"  Bishop  Trilawny 
was  being  prosecuted  by  King  James  II. 
At  the  same  time  the  purpose  actually  up- 
permost in  the  minds  of  those  who  organ- 
ised this  demonstration  was  to  overawe 
the  Police  at  Chaura  into  quiescence}  be- 
fore the  crowd  moved  on  the  Mundera 
bazaar,  in  order  that^they  might  be  certain 
of  being  able  to  work  their  will  there 
without  interference. 

From  every  point  of  view  the  agreement 
come  to  amounted  to  criminal  conspiracy. 
There  has  been  much  criticism  before  us, 
directed  against  the  drafting  of  the  conspi- 
racy charge,  and  that  criticism  is  not  alto- 
gether without  foundation.  As  we  read  the 
charge,  the  illegal  acts  which  the  accused 
are  alleged  to  have  agreed  amongst  them- 
selves todb  fall  under  two  distinct  heads: — 

(a)  to  overawe  the  Police  by  force  or  show 
of  force, 

(b)  to  beat  the  Police,  in  consequence  of 
what  the  Sub-Inspector  andhis  subordinates 
had  previously  done  at  Mundera  on  the   1st 
of  February. 

The  second  part  of  the  charge,  as  thus 
Stated,  is  not  sustainable,  if  only  for  the 
reason  that  when  Sub-Inspector,  Gupteshar 
Singh  caned  the  accused,  Bhagwan  Ahir,  he 
was  not  acting  in  the  discharge  of  his  duty. 
The  first  part  of  the  charge  is,  in  our  opin- 
ion, borne  out  by  the  evidence.  We  have 
also  expressed  our  opinion  that  the 
agreement  come  to  as  to  what  was  to  be 
done  by  the  crowd  when  they  reached  Mun- 
dera amounted  to  criminal  conspiracy,  al- 
though that  is  not  expressly  set  forth  in 
the  charge.  As  a  matter  of  fact,  although 
*ve  are  prepared  technically  to  affirm  the 
Convictions  recorded  under  s.  120-B,  Indian 


159 

Penal  Code,  except  where  we  have  arrived 
at  the  conclusion  that  in  the  case  of  a  par- 
ticular appellant  the  evidence  is  insufficient 
to  support  any  of  the  charges,  Uhe  question 
is  to  our  minds  one  of  little  more  than  aca- 
demic importance.  What  we  really  have  to 
determine  is  whether  Sub-Inspector  Gup- 
teshar Singh  was  warranted  by  law  in  the 
action  which  he  took  that  afternoon  at 
Chaura  Police  Station,  and  what  was  the 
common  object  of  the  crowd  there  assembled 
at  least  from  the  moment  when  they  began 
to  discharge  volleys  of  missiles  against  the 
Police. 

On  the  first  point  we  have  in  substance 
already  expressed  our  opinion.  A  statement 
has  been  made  in  evidence  that,  before  call- 
ing upon  the  chaukidars  to  disperse  the 
assembly  in  front  of  the  thana  gate,  Sub- 
Inspector,  Gupteshar  Singh  made  some  at- 
tempt to  issue  a  formal  command  directing 
the  assembly  to  disperse.  It  is  likely  enough 
that  the  unfortunate  Sub-Inspector  did  try  to 
strengthen  his  own  position  by  formal  com- 
pliance with  the  provisions  of  s.  127,  Cr.  P.O. 
It  would  have  been  no  more  than  a  formal 
compliance  at  most,  and  the  evidence  on 
point  is  not  particularly  convincing.  We 
are,  however,  abundantly  satisfied  that, 
from  the  moment  the  crowd  of  volunteers 
left  Dumri  Khurd,  right  up  to  the  time 
when  they  began  to  file  past  the  gate  of 
Chaura  Police  Station,  they  not  merely 
constituted  an  unlawful  assembly,  but  were 
conducting  themselves  throughout  in  such 
a  manner  as  to  show  the  firmest  possible 
determination  not  to  disperse  if  called  upon 
to  do  so.  The  Sub-Inspector  was,  therefore, 
abundantly  justified,  under  section  128, 
Cr.  P.  C  ,  in  attempting  the  dispersal  of  the 
crowd  at  the  moment  when  he  did  so.  If 
he  failed  in  his  duty  at  all,  it  was  in  not 
having  done  so  sometime  before.  Argu- 
ments which  have  been  addressed  to  us  at 
the  hearing  of  this  appeal  only  serve  to 
suggest  the  storm  of  criticism  which  the  Sub- 
Inspector  would  have  provoked  if  he  had 
resolutely  done  his  duty,  as  we  conceive  it, 
by  barring  the  further  advance  of  the  crowd 
before  they  reached  the  southern  boundary 
of  the  Police  Station.  lu  this  connection 
we  are  bourld  to  note  the  great  stress  laid 
in  argument  before  us  on  the  fact  that  the 
volunteers  set  forth  on  this  expedition  were, 
generally  speaking,  unarmed.  We  agree 
that  the  evidence  justifies  the  conclusion 
that  they  did  so,  though  we  are  not  prepared 
to  say  that  numbers  of  those  who  joined 


ABDULLAH  V.  EMPEROR, 


[92 1.  0. 1928] 


crowd  on  the  march  were  similarly  unarm- 
ed It  may  be  matter  for  consideration 
also  how  far  the  flags  mounted  on 
staffs,  carried  in  front  of  the  crowd,  were 
capable  at  need  of  being  used  as  weapons. 
We  do  think,  however,  that  those  responsi- 
ble for  organising  this  movement  did  intend 
that  the  volunteers  should  advance  on  the 
Police  Station  without  weapons  and  that,  in 
the  main,  they  succeeded  in  carrying  out 
this  purpose.  This  finding  in  no  way  con- 
flicts with  the  findings  we  have  recorded 
as  to  the  unlawful  character  of  the  assem- 
bly. The  crowd  was  formidable  enough, 
without  carrying  weapons,  to  have  over- 
whelmed any  resistance  offered  hy  the  small 
Police  force,  provided  only  they  showed 
sufficient  courage  and  resolution.  If  their 
resolution  had  failed  them  and  they  had 
scattered,  after  suffering  a  number  of 
casualties  from  the  muskets  of  the  Police, 
the  fact  that  they  carried  no  weapons 
would  no  doubt  have  been  used  to  support 
a-  story  of  the  wanton  massacre  of  peaceful 
demonstrators  by  the  agents  of  a  ruthless 
Government. 

The  immediate  objectof  the  assembly  as 
it  reached  the  Police  Station  was  to  threaten 
and  to  obstruct  Sub-Inspector,  Gupteshar 
Singh  and  the  Policemen  with  him  in  the 
discharge  of  their  duty,  an  offence  punish- 
able under  s.  152,  Indian  Penal  Code,  an 
object  sufficient  in  itself,  and  apart  from 
any  of  the  other  clauses  of  s.  141  of  the  same 
Code,  to  bring  the  matter  within  the 
purview  of  the  third  clause  of  the  said 
section.  We  have,  however,  already  in- 
dicated onr  opinion  that  a  further  and  more 
dangerous  purpose  lurked  behind.  Shikari 
stated  in  his  evidence  that  the  resolution 
come  to  at  Dumri  was  that,  after  asking  the 
Sub-Inspector  why  he  had  beaten  volun- 
teers, they  should  beat  him  if  his  answer 
was  unsatisfactory.  The  approver  Thakur 
stated  that  the  agreement  they  had  come 
to  was  that  if  he  (the  Sub-Inspector)  "beat 
us  we  should  beat  him."  We  are  asked  to 
disbelieve  these  statements  on  the  strength 
of  various  arguments  based,  in  part,  upon 
a  "comparison  of  the  evidence  given  by  the 
approvers  at  the  Sessions  trial  witiji  previous 
statements  which  they  had  made  in  the 
Magistrate's  Court,  or  elsewhere.  This 
evidence,  however,  and  particularly  Thakur's 
version  of  the  scheme  as  it  presented  itself 
to  the  mindsof  the  volunteers, fits  in  too  well 
with  what  actually  occurred  at  Chaura  for 
us  to  feel  any  doubt  that  these  controverted 


statements  are  substantially  true.  The 
instructions  which  had  come  down  to  the 
volunteers  from  their  superiors,  by  what 
channel  we  do  not  know,  were  that  they 
were  not  to  be  the  first  to  use  violence  ; 
but  that,  if  the  Police  used  force,  they  were 
to  be  at  liberty  to  retaliate  in  such  manner 
as  they  might  consider  best  and  most 
effective.  The  evidence  as  a  whole  leaves 
no  doubt  whatever  in  our  minds  on  this 
point.  We  know  also  that  the  objects  which 
the  volunteers  had  set  before  them  for 
accomplishment,  at  Chaura  first,  and  after- 
wards at  Mundera,  were  such  as  must  sooner 
or  later  provoke  the  most  long  suffering  of 
Police  Officers  to  the  forcible  use  of 
his  lawful  authority  against  the  lawless 
crowd. 

An  intention  to  assault  the  Police  in 
certain  eventualities  was,  therefore,  part  of 
the  common  object  of  the  whole  assembly 
of  volunteers  from  the  time  they  left 
Dumri.  From  the  moment  the  whistles 
sounded  and  the  crowd  turned  back  and 
commenced  their  organised,  and,  to  the 
extent  which  we  have  indicated,  their 
premeditated,  attack  on  the  Police  Station, 
the  object  of  every  member  of  the  crowd 
was  unquestionably  to  cause  the  utmost 
hurt  in  his  power  to  any  Policeman  on  whom 
he  could  succeed  in  laying  hands.  After 
the  first  effective  volley  had  been  fired,  and 
when  the  crowd  continued  their  attack  and 
pressed  it  home  in  face  of  the  casualties 
they  had  suffered,  their  object  was,  beyond 
possibility  of  doubt  or  contradiction,  to  do 
simply  what  they  did,  namely,  to  take  life, 
in  revenge  for  life.  The  crowd  which 
stormed  the  Police  Station  and  massacred 
the  Policemen  and  chaukidars  was  the  same 
crowd  which  had  commenced  the  attack 
with  volleys  of  missiles.  The  charge  drawn 
up  under  s.  302/149,  Indian  Penal  Code,  is 
fully  established  as  against  any  one  of  the 
accused  persons  *who  is  proved  by  evidence 
to  have  continued  an  active  participant  in 
the  riot  after  the  moment  when  kankar 
began  to  be  thrown,  unless  and  until  it  can 
be  inferred  from  credible  evidence  that  he 
separated  himself  from  the  rest  before  the 
offence  of  murder  had  been  committed  by 
any  one  of  them. 

Passing  on  to  consider  the  cases  of 
individual  appellants,  we  find  it  convenient 
to  depart  from  the  alphabetical  order 
followed  by  the  learned  Sessions  Judge. 
Up  to  certain  point  at  any  rato,  it  appears 
to  us  that  we  are  able  to  obtain  a  clearej 


1.0.  1928] 


ABDULLAH  V.  EMPEROR. 


161 


and  more  logical  view  of  the  effect  of  the 
evidence  as  a  whole  by  grouping  the 
accused  peraons  together,  a.s  far  as  possible, 
under  the  head  of  the  villages  in  which 
they  reside.  The  prosecution  believed  that 
they  had  evidence  in  their  possession  to 
support  the  conclusion  that  contingents  of 
volunteers  from  no  less  than  sixty  villages, 
situated  within  a  radius  of  fifteen  miles  or 
so  from  Ohaura  Police  Station,  took  part  in 
the  final  encounter  with  the  Police.  The 
list  of  appellants  now  before  us  contains 
representatives  from  a  large  proportion  of 
these  villages;  but  considerable  groups 
come  from  each  of  five  or  six  particular 
localities  which  have  consequently  assumed 
a  special  importance  in  the  history  of  the 
case.  We  propose  to  take  up  these  groups 
first. 

We    begin   with    the    village  of   Dumri 
Khurd,    which  was  the    rendezvous  of  the 
volunteers  and  from  which  the    nucleus  of 
1,000  to  1,500  men  set  forth  on  their  expedi- 
tion to  Chaura  Police  Station  and  Mundera 
bazaar.    The  learned  Sessions  Judge    had 
before  him  no  fewer  than  31   accused  per- 
sons from    this     village.      He  found  the 
evidence  against  six  of  them  insufficient  to 
warrant  a  conviction  —  a  fact  which  in  itself 
suggests  to  our  minds    that  the  prosecution 
net  had  been  spread  a  litcle  too  widely,  so 
far  as  this  village  is  concerned.    One  feature 
common  to  practically  all  the  accused  from 
this  village  is  that    they  are  implicated  in 
the  evidence  given  by  the  approver  Shikari. 
The  circumstances  under  which   this  man 
made  his    appearance  in  the  witness-box 
are  sufficiently  set   forth  in   the  judgment 
under      appeal.      He    proved    himself  an 
intelligent  and  even  plausible  witness.    His 
statement,  as  we  have  been  taken  through 
it,  reads  convincingly.    We  have  no  hesita- 
tion in  agreeing    with  the  learned  Sessions 
Judge  that  Shikari  did  take  that  part  in  the 
events  referred  to  in  his   evidence  which  he 
ascribed  to  himself  ,  possibly  even  a  some- 
what more  prominent    part.    In  the  main, 
as  we  have  already  stated,  we  are  satisfied 
that  the  witness  had  made  up  his  mind  to 
earn    his  pardon    honestly,  by  making   a 
clean  breast  of  the  facts  so  far   as  known  to 
him.    At  the  same  time  we  are  entirely  in 
agreement  with    the  principle  which,  the 
learned  Sessions  Judge  has   himself  laid 
down,  that  this  is  not  a  case  in  which  the 
Court  would  think  of  departing  frorfa  the 
general    rule   of  practice  which    requires 
pome  reliable  corroboration  of  the  evidence 

11 


of  an  accomplice,    before  it  will  accept  that 
evidence  as    sufficient  proof  of  the  guilt  of 
a  particular   accused.    In  certain  instances 
the  learned     Sessions    Judge  has  himself 
found  reason  to  suspect  that  Shikari  may 
have  stretched  a  point    against  particular 
neighbours  of  his,  for  the   sake  of  gratify- 
ing an   antecedent     grudge.    Apart  from 
this,  the  man    was  obviously  under  a  con- 
siderable temptation    to  introduce  into  his 
story  the  names  of  any  of  his  own  fellow 
villagers  against  whom  he  believed  that  the 
Investigating  Police  Officers  were  entertain- 
ing serious  suspicions.    His  failure  to  do  so 
might,  according  to  the  mentality  of  a  per- 
son of  his  class,  endanger  his  own  pardon 
by  creating  a   suspicion    in  the  minds    of 
the  Police  that   he  was    endeavouring  to 
shield  neighbours  of  his  own  about  whose 
doings  he  could  not  well  profess  ignorance. 
We    have     made    these    general    remarks 
because,  upon  a  review  of  the  entire  evi- 
dence against  the  Dumri  men  and  a  further 
sifting  of  that    evidence,    we    have    come 
to    the    conclusion    that  the  doubts  enter- 
tained by    the    learned    Sessions     Judge 
regarding  the  adequacy  of  the  corrobora- 
tion   forthcoming    against    six    of    the&e 
men  should  have  been  extended  to  a  con* 
siderably  larger  number. 

We  have  now  to  consider  the  appropriate 
sentence  to  pass  on  each  of  those  appellants 
in  respect  of  whom  we  have  affirmed  the 
conviction  on  the  capital  charge,  namely, 
that  under  s.  302/149  of  the  Indian 
Penal  Ctode.  The  law  allows  us  a  certain 
discretion.  We  are  empowered  to  confirdi 
the  sentence  of  death  in  each  case  which 
has  been  passed  by  the  Trial  Court ;  or  we 
can  set  aside  that  sentence  and  substitute 
for  it  one  of  transportation  for  life.  The 
exercise  of  this  discretion  is  subject  to  the 
same  condition  by  which  the  learned  Sessions 
Judge  felt  himself  to  be  bound.  In  every 
case  of  a  conviction  on  a  charge  of  murder 
the  law  regards  sentence  of  death  as  the 
normal  and  appropriate  punishment. 
Where  the  Court  sees  fit  to  pass  the  lesser1 
sentence  of  transportation  for  life  it  must 
record  its  reasons  for  so  doing. 

We  do  not,  however,  agree  with  the 
learned  Sessions  Judge  that  it  is  impossible 
to  formulate  such  reasons  in  respect  of  any 
of  the  appellants  in  this  case  whose  con- 
viction on  the  capital  charge  we  have  affirm- 
ed. We  do  not  think  it  expedient  to  say 
too  much  on  this  point,  for  we,  in  no  way, 
desire  to  extenuate  the  savage  nature  of  the 


VISHWANATH  PRA8AD  V.  EMPEROR. 


[92  I.  0. 


crime  or  to  come  forward  as  apologists 
vfor  the  lawlessness  of  the  crowd.  We  take 
account  nevertheless  of  the  fact  that  this 
crime  grew  out  of  a  political  agitation. 
The  appellants  are  in  the  main  ignorant 

§easantB ;  the  great  majority  of  them  were 
,  rawn  into  the  business  by  misrepresenta- 
tions of  fact  and  preposterous  promises  con- 
cerning t,he  millennium  of  "Swaraj"  the 
arrival  of  which  was  to  be  forwarded  by 
courage  and  resolution  on  their  part.  Some 
indeed  were  apparently  influenced  by  the 
belief  that  Mr,  Gandhi  was  a  worker  of 
jniracles.  We  cannot  take  leave  of  the  case 
Without  an  uneasy  feeling  that  there  are  in- 
dividuals at  large  at  this  moment,  men  who 
Have  not  even  been  put  on  their  trial  in  con- 
fection with  this  affair,  whose  moral  res- 
ponsibility for  what  took  place  at  Chaura 
Police  Station  on  the  afternoon  of  February 
4th,  1925,  is  at  least  equal  to  that  which 
rests  upon  such  men  as  hazar  Ali  and  Lai 
Muhammad,  who  acted  as  leaders  openly,  in 
the  light  of  day,  and  at  least  placed  their 
own,  lives  on  the  hazard  along  with  the 
rest. 

These  are  sufficient  reasons,  in  our  opinion, 
to  warrant  the  course  we  propose  to  take. 
We  reserve  the  supreme  penalty  of  the  law 
for  the  ringleaders  and  for  those  against 
whom  we  find  specific  acts  proved  by  the 
Evidence  such  as  would  have  bound  us  to 
convict  them  on  a  charge  of  murder,  apart 
from  the  special  provisions  of  s.  149  of  the 
Indian  Penal  Code.  As  to  these  we  find 
frothing  which  can  in  our  view  warrant  any 
Other  sentence  than  that  of  death.  Against 
the  remainder  we  pass  the  only  other  sen- 
tence permissible  to  us  by  law,  that  of 
transportation  for  life 

We  propose  to  go  a  step  further  than  this. 
In  respect  of  a  considerable  number  of  the 
men  whom  we  are  sentencing  to  tran- 
sportation for  life  we  have  formed  the  opin- 
ion that  their  cases  arc  fit  to  be  considered 
With  a  view  to  the  exercise  of  the  clemency 
of  the  Grown. *  > 


N,  H. 


Sentence  confirmed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  PETITION  No  61  OF  1925. 

November  3, 1925. 

Present:— Mr.  Find  lay,  Officiating  J.  C. 

VISHWANATH  PRASAD  PANDE— 

APPLICANT 

versus 
EMPEROR— NON-APPLICANT. 

Criminal  Procedure  Code  (Act  V  of  ISPS),  s  52€-~ 
Transfer  of  criminal  case — Expression  of  opinion  ly 
Magistrate  in  another  case  about  guilt  of  accused. 

The  fact  that  a  Magistrate  has  expi  eased  in  another 
criminal  case  a  distinct  opinion  about  the  guilt  of 
the  accused  is  a  reasonable  ground  for  the  apprehen- 
sion that  he  may  not  have  a  fair  and  impartial  trial 
before  the  Magistrate  and  is,  therefore,  a  good  giound 
for  transferring  the  case  from  his  file.  [p.  163,  col.  L] 

Application  for  transfer  of  Miscellaneous 
Criminal  Case  No.  41  of  1925  under  s,  110  of 
the  Cr.  P.  C.  pending  before  the  Sub-Divi- 
sional Magistrate,  Bhandara,  to  the  file  of 
some  other  Magistrate, 

Mr.  D.  T.  Mangalmoorti,  for  the  Appli- 
cant. 

Mr.  G.  P.  Dick,  for  the  Crown. 

JUDGMENT.— The  present  applicant 
desires  a  transfer  of  Miscellaneous  Criminal 
Case  No.  41  of  1925  pending  against  him 
.under  s.  110  of  the  Or.  P.  C.,  from  the 
Courtof  Mr.G.L.Mukerji,  First  Class,  Magis- 
trate, Bhandara.  The  only  ground  in  the 
transfer  application,  which  seems  tome  to  re- 
quire serious  notice,  is  the  fact  that  in  Miscel- 
laneous Criminal  Case  No,  18  of  1925  against 
Lochan  and  Chunbadia  under  the  same 
s.  (110)  of  the  Cr.  P.  C.  the  same  Magistrate 
expressed  a  distinct  opinion  at  the  end  of 
his  order  that  the  present  applicant  was 
abetting  the  actions  of  these  two  men 
who  are  his  servants. 

It  is  urged  that  on  this  ground  the  ap- 
plicant has  reasonable  cause  of  apprehen- 
sion, that  he  will  not  meet  with  a  fair  or, 
impartial  trial  While  I  am  far  from  sup- 
posing that  the  Magistrate  would  be  likely 
to  be  unfair  or  non-impartial  towards  tho 
present  applicant,  it  is  in  the  circumstances 
of  this  case,  impossible,  if  one  takes  tha 
point  of  view  of  the  applicant,  to  hold 
that  there  is  not  reasonable  ground  for  an 
apprehension  of  the  kind  he  says  he 
entertains. 

The  learned  Standing  Counsel  on  behalf 
of  the  Grown,  in  opposing  the  ai  rlirasiai 
has  relied  on  the  decisions  in  Rajam  Kanio, 
Dutta  v.  Emperor  (1)  and  Emperor  v.  liar- 

(1)  3  lad,  Cas,  68;  36  C,  £04;  10  Cr,  L,  J,  244, 


[02  I.  0. 1926] 


ABDttL  Q.\DIR  V.  EMPEROR, 


163 


gobind  (2).  The  former  decision  so  far  as 
arty  general  principle  can  be  extracted 
from  it,  merely  lays  down  that,  in  apply- 
ing the  doctrine  of  reasonable  apprehen- 
sion in  the  mind  of  an  applicant  like  the 
present  one,  regard  must  be  had  to  the 
circumstances  of  each  particular  case.  The 
second  decision  is  somewhat  different. 
There  two  cross-cases  arising  out  of  a  riot 
were  pending  in  a  single  Magistrate's  Court. 
Tudball,  J.,  did  not  find  it  necessary  to 
order  the  transfer  of  the  second  case,  al- 
though the  Magistrate  had  expressed  an 
opinion  in  the  previous  case  that  the 
applicants  in  the  second  case  were  the  ag- 
gressors. The  learned  Justice  merely  point- 
ed out  that  it  would  be  the  duty  of  the 
Magistrate  to  act  simply  and  solely  on  the 
evidence  which  was  laid  before  him  in  the 
course  of  the  second  trial.  A  decision 
somewhat  to  the  contrary  effect  is  to  be 
found  in  the  case  Rangasami  Goundan  v. 
Emperor  (3). 

Now,  in  the  present  instance,  the  fact 
remains  that  the  Magistrate  has,  possibly 
quite  rightly,  expressed  a  distinct  opinion 
in  his  order  of  5th  August  1925  that  the 
present  applicant  was  guilty  of  abetting 
Lochan  and  Ohunbadia,  his  two  servants, 
concerned  therein.  This  seems  to  afford 
ample  ground  for  a  reasonable  apprehen- 
sion of  the  kind  alluded  to  in  s.  526  of  the 
Cr.  P,  0,,  and  it  would  appear  to  me  also 
that,  even  from  the  point  of  view  of  the 
Grown  itself,  it  is  highly  desirable  that 
the  present  case  should  be  dispose  J  of  by 
a  Court  in  which  there  could  not  be  the 
slightest  ground  for  any  allegation  that 
there  was  any  tinge  of  conscious  or  un- 
conscious bias  on  the  part  of  the  Magis- 
trate concerned.  For  these  reasons,  there- 
fore, I  order  Miscellaneous  Criminal  Case 
No.  41  of  1925  to  be  transferred  from  the 
Oourtof  Mr.  Mukerji,  First (Jlass Magistrate, 
Bhandara,  to  the  Court  of  the  District 
Magistrate,  Bhandara,  or  to  the  Court  of 
such  other  First  Class  Magistrate  in  the 
District  as  he  may  appoint  to  dispose  of  it. 

N,  H.  Case  transferred. 

(2)  IS  Ind.  Gas.  652;  33  A.  583;  12  Cr.  L  J.  564. 
"  (3)  30  M.  233;  2  M,  L.  T,  89;  5  Cr.  L.  J.  290. 


LAHORE  HIGH  COURT. 

CRIMINAL  REVISION  No.  590  OF  1925. 

Jane  5,  1925. 

Present;—  Mr.  Justice  Abdul  Raoof. 
ABDUL  QADIR—  PETITIONER 

versus 
E  MPE  RO  R  —  RHSSPONDBNT. 

Practice—  Dispute  of  Civil    nature—  Criminal  pro* 


Parties  should  not  be  encouraged  to  resort  to  the 
Criminal  Courts  in  cases  in  which  the  point  at  issue 
between  them  ia  one  which  can  more  properly  be 
decided  by  a  Civil  Court.  In  each  case,  however,  it 
must  be  aeen  whether  the  issue  as  to  title  is  raised 
bona  fidt  or  mala  fide  [p  164,  col.  L] 

Criminal    revision  against  an  order  of 
the  Magistrate,   Ferozepore. 

Lala  Fakir  Chand,  for  the  Petitioner. 

Messrs.  Abdul  Aziz  and  Ata  Jelani  Khan, 
for  the  Respondent. 

JUDGMENT.—  This  petition  for 
revision  is  the  result  of  a  dispute  between 
the  Municipal  Committee  of  Zira  and  the 
petitioner  with  regard  to  a  pond  around 
which  are  certain  number  of  trees.  It  was 
reported  to  the  Municipality  that  some  of 
those  trees  had  dried  up.  Thereupon  the 
Municipal  Committee  resolved  to  sell  the 
timber  of  those  trees.  A  notice  was  issued 
to  the  public  inviting  them  to  attend  the 
sale  which  was  to  take  place  on  the  18th 
of  February  1925,  at  10  A.  M.  The  peti-^ 
tioner  claims  to  be  one  of  the  proprietors 
of  the  pond  and  of  the  trees  standing 
around  that  pond.  He  also  claims  that 
he  has  purchased  the  shares  of  some  of 
the  other  co-proprietors  under  four  sale* 
deeds.  He  asserted  his  right  of  owner- 
ship by  openly  cutting  certain  trees  on  the 
date  and  at  the  hour  fixed  for  the  sale  by 
the  Municipal  Committee.  Thereupon  the 
Committee  decided  to  prosecute  the  pe- 
titioner in  the  Criminal  Court  for  the 
offence  of  theft.  A  certain  amount  of  evi- 
dence was  taken  and  the  Magistrate  framed 
a  charge  charging  the  petitioner  of  the 
offence  of  theft  under  s,  379,  Indian  Penal 
Code.  Against  the  order  framing  the 
charge  the  present  petition  for  revision 
has  been  preferred  and  it  has  been  contend- 
ed chiefly  with  reference  to  the  ruling  in, 
Em,peror  v.  Bishan  Das  (1)  that  the  dispute 
between  the  parties  being  of  a  civil  nature 
the  Magistrate  ought  not  to  have  framed  the 
charge  of  theft  against  the  petitioner  And 
ought  to  have  directed  the  parties  td  go 

(1)  8Ind.  Cas,  1161:33  P.  R.  1910  Cr.;  57  P 
1011;  12  Cr,  L,  J,  50, 


184 


BAJIRAO  t.   DADIBAI. 


i.  u. 


to  the  Civil  Court  and  seek  a  remedy  there. 
The  learned  Judges  who  decided  the  case 
made  some  observations  on  this  particular 
point,  which  is  summed  up  in  the  head- 
note  appended  to  the  report  of  the  case  in 
the  following  words  :  — 

14  That  it  is  a  very  sound  general 
principle  and  one  to  be  observed  by  all 
Magistrates  that  parties  should  not  be  en- 
couraged to  resort  to  the  Criminal  Courts 
in  cases  in  which  the  point  at  issue  be- 
tween them  is  one  which  can  more  appro- 
priately be  decided  by  a  Civil  Court.'* 

This  ruling  has  been  followed  in  various 
other  cases  in  this  Province,  see,  for  example, 
Khushi  Ram  v.  Emperor  (2)  and  I^dha 
Shah  v.  ZamanAli  (3).  There  is  a  later  case 
also,  namely,  Shib  Das  v.  ttmperor  (4),  which 
also  lays  down  a  similar  rule.  Of  course 
in  each  case  it  is  to  be  seen  whether  the 
issue  as  to  title  is  raised  bona  fide  or  mala 
fide.  Ifc  is  premature  for  me  to  decide  at 
this  stage  whether  the  petitioner  and  his 
co-owners  are  the  proprietors  of  this  bond 
and  the  trees  or  the  Municipal  Committee 
exercises  right  of  ownership  over  them,  But 
from  what  I  have  been  able  to  see  from 
the  record  I  am  not  prepared  to  hold  that 
the  claim  asserted  by  the  petitioner  is 
wholly  without  foundation.  It  is  possible 
that  he  may  not  have  a  title  which  may  be 
accepted  in  a  Civil  Court,  but  on  the  other 
hand  it  cannot  be  said  in  an  off-hand  manner 
that  he  was  not  exercising  his  right  of 
ownership  when  he  began  to  cut  the  trees 
on  the  date  fixed  by  the  Municipal  Com- 
mittee for  the  sale  of  these  trees.  Having 
regard  to  all  the  •  ..-:  :::  ]'.:.-  circumstance^ 
of  this  case  I  think  the  Magistrate  would 
have  exercised  a  better  descretion  if  he 
had  followed  the  instructions  contained 
in  Emperor  v.  Bishen  Das  (1)  I,  therefore, 
accept  the  petition  and  quash  the  charge 
framed  by  the  learned  Magistrate. 

z.  K.  Appeal  accepted. 

(2)  59  Ind.  Cas.  654;  22  Cr.  L.  J.  142;  6  P.  W.  R. 
1921  Or.;  3  L,  L,  J.  99. 

(3)  84  lad.  Gas  331;  (1925)  A.  I.  R.  (L.)  289;  26 
Cr.  L.  J.  287 

(4)  21  Ind  Cas.  899;  335  P.  L.  R.  1913;  40  P.  W.  R. 
1913  Or.;  14  Cr,  L.  J.  659, 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

-  CRIMINAL  REVISION  No.  98  OF  1925. 

August  13,  1S25. 

Present:— Mr.  Findlay,  Officiating  J.  0, 
BAJJRAO— APPLICANT 

versus 

Musammat  DADIBAI  AND  AKOTBER — 
NON-APPLICANTS. 

Criminal  Procedure  Code  (Act  V  of  18Q8),  s.  H5-~ 
Possession  of  agent  or  servant,  whether  can  be  pleaded 
ayai?ist  principal  or  master. 

The  possession  of  an  agent  or  a  servant  which  is 
permissive  cannot  give  a  party  to  a  proceeding  under 
s.  145  a  locus  standi  against  his  principal  or  master. 
The  possession  that  can  be  pleaded  in  such  a  proceed- 
ing must  be  possession  based  on  a  claim  of  right  to 
possession,  [p.  165,  col  2.J 

Nmtta,  Gopal  Singh  v,  Cthandi  Char  an  Singh,  10  0. 
W.  N.  1088;  4  Cr,  L.  J.  215,  followed. 

Application  for  revision  of  an  order  of  the 
Sub-Divisional  M  -^i-'i  „••-.  Gondia,  dated 
the  15th  April  iJ.j,  IK  Criminal  Case 
No.  30  of  1924. 

Mr,  M.  V.  Abhyankar,  for  the  Applicant. 

Messrs  V.  M.  and  Y.  V.  Jakatdar,  for  the 
Non- Applicants, 

ORDER.— The  facts  of  this  case  have 
been  fully  stated  in  the  Sub-Divisional 
M-iir'-'r-i'-'s  order.  The  present  applicant 
iJ.-^i:::  •  v.s  now  come  up  in  revision  against 
the  said  order  under  which  Musammat 
Kamabai  and  Dadibai  were  ordered  to  put 
in  possession  of  the  9  sir  fields  in  question 
in  Mouza  Gangla. 

It  cannot  be  denied  that  on  18th  February 
1924Kondibai  and  Laxmanrao  executed  &. 
deed  of  surrender  in  respect  of  the  sir  land 
in  question  in  favour  of  the  present  appli- 
cant, and  the  said  deed  of  surrender  con- 
tained a  condition  that  the  applicant  would 
enter  into  possession  on  1st  May  1924,  that 
is  in  the  beginning  of  the  agricultural  ye^ 
1924  55.  In  the  previous  proceeding  tmd 
s.  145,  Cr.  P.  C,,  the  all  important  docu* 
mentis  the  compromise  application  of  16tli 
Augubt  11*24.  1  his  compromise  applicatioa 
was  signed  not  only  by  Kondiba,  Laxmanrao 
and  Bajirao,  but  by  Narayan  for  Musammat 
Kamabai  as  well  Objection  had  betn 
taken  to  r  •  "  '  '  r  '"'; .  but  as  it  fours 
part  of  a  j  .•  .  •,,•:"•  is  clearly  admis- 
sible as  evidence  of  an  admission  by  Kamfc- 
bai  that  Bajirao  had  obtained  possession 
not  neceeearily  on  1st  May  1924,  but  en 
some  date  before  16th  August  1924,  the  date 
of  the  petition  in  question.  It  is  Narayan's 
authority  to  make  the  admission  which  is 
now  sought  to  be  impugned  on  behalf  o{ 


BAJIRAO  V.  DAD1BAI. 


[S2I.0. 

the  non  applicants,  but  it  is  noticeable 
from  his  evidence  in  the  said  proceedings 
that  he  was  agent  both  for  Laxmanrao  and 
for  Kamabai.  The  Magistrate,  affcer  ex- 
amlaing  three  wiin^^es.inol'iJinEfKondiba, 
passed  an  order  cancelling  his  preliminary 
one.  Evea  the  Magistrate  found,  vide 
para.  5  of  the  order  now  sought  to  be 
revised,  ttyat  the  dispute  had  been  settled 
by  the  taale  members,  viz ,  Kondiba  and 
Laxmanrao,  who  were,  in  effect,  the  princi- 
pals. On  30fch  October  1924,  however,  when 
Bajirao  sent  {his  ploughs  to  sow  the  rabi 
crops,  he  was  obstructed  by  the  non-appli- 
cants, vide  EXH.  P.  6  and  P.  7.  In  conse- 
quence of  the  reports  to  theJFplice  and  their 
further  enquiry  a  fresh  preliminary  order 
was  passed  on  16fch  December  1924. 

The  only  vital  question,  therefore,  for  con- 
si  deration  is  whether  the  present  applicant 
was  in  possession  on  16th  December  1924, 
or  within  two  months  beforehand.  The  com- 
promise petition,  as  a  result  of  wfcich  the 
previous  proceedings  under  s.  145,  Or,  P.  C., 
were  abortive,  may  or  may  not  be  attackable 
in  the  Civil  Court,  but  must,  for  the  purposes 
of  the  proceedings,  obviously  be  assumed  to 
bs  a  genuine  one,  and  it  follows  therefrom 
that  the  applicant  was,  on  the  non-applicant's 
own  admisssipn,  in  peaceable  possession, 
at  any  rate,  in  August  1924.  There  has 
been  no  evidence  of  the  non-applicants1 
possession  between  that  date  and  30th 
October  1924  when  undoubtedly  they 
obstructed  the  applicant  in  his  attempt  to 
sow  the  fields  Applicant's  possession  would 
prima  /&cie  appear  to  have  been  a  lawful 
&ad  proper  one  in  pursuance  of  a  deed  of 
compromise  containing  the  relevant  admis- 
sion «,s  to  possession,  which  had  been  duly 
filed  in  Court  The  Magistrate  has  laid 
preat  stress  on  the  question  of  who  was 
m  possession  on  1st  May  1924.  But  assum- 
ing that  the  non-applicants  were  in  pos- 
session then,  and  assuming  further  that 
they  had  sown  the  kharif  crop  of  that 
year,  the  position  was  entirely  altered  by 
the  admission  made  in  the  deed  of  com- 
promise, and  on  the  material  available  it 
certainly  seems  to  me  that  the  presumption 
must  be  made  that  the  applicant  wag  in 
lawful  possession  within  two  months  of  the 
date  of  the  preliminary  order.  The  forci- 
ble obstruction  of  the  applicant  from  sow- 
ing the  rabti  crop  on  30th  October  1924 
3ccurred  less  than  two  months  before  the 
dnte  of  the  preliminary  order. 

In   dealing   with     the  various   reports, 


165 


which  have  been  made  feo  the  Police  in  con- 
nection with  various  episodes  in  this  dis- 
pute, the  Magistrate  seema  to  have  put  an 
entirely  wrong  construction  on  the  reports 
in  question.    Lat  us  consider  who  the  non- 
applicants  are.  They  themselves  practically 
admit  that  they  are  holding    on  behalf  of 
Kondiba  and  Laxmanrao  who  are  in  reality 
their  principals.    The  plea   that  they  have 
some   right  to  the  land  in  respect  of  the 
claim  for  maintenance  is    not  one    which 
need  be  considered  seriously  in  a   summary 
prcre^liiitf  like  that  we  are  concerned  with. 
What  lli» 'reports  like  e.  g.  Rxs.  P.  1   to  P.  5 
do  show  is  that  when  Bajirao  went,  in  pur- 
suance apparently  of  a  bona  fide  belief  that 
he  was    entitled   to  the  possession  of  the 
fields  in  question,  to  take  steps  for  cultivat- 
ing them  or  reaping  the  crops  he  was  for* 
cibly  obstructed  by  the  servants  and   parti- 
sans of  the  non-applicants.    The  Magistrate, 
for  some  reason  or  other,    construes  this 
mere  act  of  resistance  and  obstruction  as 
proof  of  the  possession  of   the  non-appli- 
cants,    lam  wholly  unable  to  endorse  such 
an    interpretation    of    these     documents. 
What  all  these  documents  as  well  as   the 
later  reports  (Exs.  P.   8  to  P.  10)  do  show 
is  that  the  non-applicants  were  attempting 
to  obstruct  the  applicant  in  taking  effective 
measures  to  cultivate  the    land    in  ques- 
tion.     The     position    of     the    non-appli- 
cants, in  effect,  amounts  to  this  that  they 
were    attempting  to  obtain  or  hold    pos- 
session  of  the  property  against  their  prin- 
cipals.   Musammat  Kamabai  in  her  evidence 
frankly  admits  that  she  was  merely  manag- 
ing the  property  on    behalf  of   the    two 
principals    Kondiba  and    Laxmanrao.    At 
the    very  best,   therefore,    the   only    plea, 
which  can  be  put  forward  in  favour  of  the 
possession   of  the  non-applicants,    is    that 
their  possession  was  merely  ou    behalf  of 
their  principals. 

I  fully  concur  with  the  view  laid  down 
in  Nritta  Gopal  Singh  v.  Chandi  Charan 
Singh  (1),  that  the  possession  of  an  agent 
or  a  servant  which  is  permissive  cannot 
give  a  party  to  a  proceediug  a  locus  standi 
as  against  his  principal  or  master.  The 
possession  that  can  be  pleaded  in  a  pro- 
ceeding under  s.  H5,  Cr.  P.  0 ,  inust  be 
possession  based  on  a  claim  of  right  to  pos- 
session. From  this  point  of  view  the  posi- 
tion of  the  non- applicants  is  an  absolutely 
untenable  one.  They,  at  the  most,  have  u 

(1)  10  O..W. »,  1088;  4  Or.  L.  J,  215, 


166 


BAJIRAO  V,  DADIBAI, 


[92  I.  0. 


right  to  challenge  the  surrender  of  the  sir 
fields  in  the  Civil  Court,  but  their  attempt  to 
claim  possession  in  their  own  names  is,  on  the 
face  of  it,  an  improper  and  erroneous  one  in 
the  circumstances  of  the  present  case.  There 
may,  of  course,  be  reason  for  supposing 
that  the  present  non-applicants  are  merely 
taking  up  the  position  they  do  as  the  result 
of  a  fraudulent  and  collusive  conspiracy 
with  Kondiba  and  Laxmanrao,  but  with  this 
aspect  of  the  case  I  am  not  at  present 
concerned.  Clearly,  to  my  mind,  in  the 
present  case  the  presumption  must  be 
drawn  that  Bajirao  was  put  in  effective 
possession  by  the  surrendering  tenants  on 
some  date  prior  to  16th  August  1924  and 
remained  in  such  possession,  at  any  rate, 
until  30th  October  1924  when  the  non-  appli- 
cants prevented  him  from  pursuing  the  cul- 
tivation of  the  fields  in  question. 

I  am  wholly  unable  to  understand  the 
Magistrate's  finding  in  para.  13  of  his  judg- 
ment to  the  effect  that  he  had  grave  doubts 
about  the  deed  of  compromise.  If  by  this 
he  meant  that  there  may  be  a  chance  of 
successfully  contesting  the  said  compro- 
mise in  the  Civil  Court,  he  may  have  been 
correct  in  this  statement,  but  if,  on  the  other 
hand,  he  meant  that  he  was  not,  for  the 
purposes  of  determining  the  question  of 
•possession,  to  assume  that  the  admissions 
made  in  the  deed  of  compromise  as  to  the 
applicant's  possession  were  actually  made, 
then  clearly  he  was  not  entitled  to  put 
such  a  construction  on  the  said  trans- 
action in  dealing  with  the  present  proceed- 
ing. 

It  is  no  part  of  my  duty  in  the  present 
proceeding  to  determine  whether  the  com- 
promise was,  as  Kamabai  alleges,  made 
''behind  her  back"  or  not.  We  can  only  deal 
with  the  actual  facts  as  to  possession  on 
the  evidence  available,  and  the  circumst- 
ances, under  which  the  previous  s,  145  pro- 
ceedings were  brought  to  an  end,  formed 
themselves  the  strongest  and  most  irrefut- 
able proof  that  the  applicant  was  in  posses- 
sion within  two  months  of  the  preliminary 
order  we  are  concerned  with.  Undoubted- 
ly it  is  true  that  the  Police  reports  on  the 
record  show  that  the  non- applicants  were 
diligent  in  obstructing,  in  every  possible 
manner  and  for  the  most  part  in  illegal  fash- 
ion, '  the  applicant  from  effectively  carrying 
on  the  cultivation  of  the  fields  in  question, 
but  this  fact  of  itself  does  not  necessarily 
'predicate  that  the  possession  was  with  the 
jxon-applicaats.  On  the  contraiy,  all  the 


circumstances  go  to  show  that  the  non-ap- 
plicants, no  doubt  owing  to  a  belief  that 
they  had  a  genuine  grievance  were  all 
through  attempting  to  dispute  and  render 
ineffective  by  forcible  and  illegal  action 
the  surrehder  which  had  duly  been  made 
in  favour  of  the  present  applicant  by 
Kondiba  and  Laxmanrao. 

The  argument,  which  has  been  advanced 
on  behalf  of  the  applicant  to  the  effect  that 
if  there  had  been  a  real  compromise  in 
August  1924,  they  would  not  have  obstruct- 
ed the  applicant  in  October,  hardly  requires 
serious  discussion.  Very  obviously  various 
possibilities  remain  in  this  connection.  It 
may  be  that  the  non- applicants  have  been 
put  up  by  Kamabai  and  Laxmanrao  to 
render  their  surrender  abortive  or  ineffec- 
tive, or  again  it  may  be  that  the  non-appli- 
cants have  taken  up  the  position  they  have 
of  their  own  accord.  It  is,  however,  impos- 
sible and  unnecessary  to  decide  these  ques- 
tions in  the  present  case.  It  is,  in  my 
opinion,  clear,  even  on  the  case  of  the  non- 
applicants  themselves,  that  the  applicant 
was  in  possession  within  two  months  of  the 
date  of  the  preliminary  order.  He  is  in 
possession  prima  facie  under  a  good  and 
legal  title  acquired,  not  only  on  the  basis 
of  the  surrender  but  on  the  admissions  made 
in  the  deed  of  compromise,  and  it  seems  to 
me  that  from  this  point  of  view  his 
possession  must  be  in  the  meantime  con- 
firmed, t 

The  order  of  the  Sub-Divisional  Magis- 
trate, dated  15th  April  1925,  is  accordingly 
reversed  and  instead  I  order  Bajiro,  the 
applicant,  to  be  put  in  possession  of  the 
sir  fields  Nos.  116,  118,  120,  129,  130,  139, 
140,  141  and  144,  total  area  52'40  acres, 
situate  in  Mauza  Gangla,  until  evicted 
therefrom  in  due  course  of  law,  and  I  fur- 
ther forbid  the  non-applicants,  Musammat 
Dadibai  and  Kamabai,  to  create  any  dis- 
turbance of  such  possession  until  such  evic- 
tion. 

o.  R.  D.  Order  accordingly.  - 

N.   H. 


[92  I*  0. 1926J 


PAETAP  SINGH  V,  BMPBfeOft. 


167 


LAHORE  HIGH  COURT, 

CRIMINAL  APPEAL  No.  135  OF  1925, 

May  15,  1925. 
Present  ;—  Mr.  Justice  Harrison  and 

Mr  Justice  Jai  Lai. 

PARTAP  SINGH  AND  OTHERS  —  ACCUSED 
—  APPELLANTS 

versus 
EMPEROR—  RESPONDENT. 

Evidence  Act  (I  of  1872),  ss.  160,  WO-Dying  de- 
claration, proof  of—  Identification—Evidence  of 
offizir  who  held  para-It  for  idtntification,  admisaibil- 
ity  of. 

A  dying  declaration,  if  certified  in  Court,  as  having 
bean  recorded  correctly,  is  admissible  in  proof  of 
its  own  contents  and  it  is  unnecessary  that  the  person 
recording  it  should  repeat  exactly  in  his  own  words 
whit  the  deceased  had  said  [p  163,  col  2.~| 

Gkazi  v.  Emperor,  Hind  Cis  417,  17  P  R.  1911 
Or.;  13  Or  L.  J.  225;  48  P.  W  K.  1911  Or  and  Abdul 
Jalil  v.  Empress,  13  P  R.  1833  Or  >  referred  to. 

Emperor  v.  Balaram  Das,  71  Ind.  Cas.  695,  49  0 
358,  (1922)  A.  L  R.  (C)  382;  21  Or.  L.  J.  221,  relied 
Upon 

,  If  the  wifcue3339  thsmselve'S  do  not  repeat  in  Oourt, 
that  they  had  picked  out  certain  men  at  an  identifica- 
tion parade,  the  evidence  of  officers  who  had  conduct- 
qd  tin  parads,  that  the  witnesses  had  picket  out  the 
nnn,  is  admissible,  fp  169,  col,  1  ] 

Empzror  v  Balaram  Da3,  71  In-t  Cas  633;  40  0. 
358;  (1922)  A  I.  R  (0  )  3S2;  24  Or.  L  J  221,  relied 


^  it  is  shown  that  at  an  identification  parade 

witnesses  picked  out  certain  men  as  having  taken  part 
in  a  riot,  but  did  not  state  to  the  officer  who  conducted 
the  p  \rade  what  pirt  each  man  hid  take  i  in  the  riot, 
the  o^ar's  evidence  thit  he  h-vl  told  the  witnesses  to 
pick  out  the  persons  present  in  the  riot,  is  quite 
su^bient  and  it  i?not  necessary  that  he  should  have 
examined  the  witnesses  as  to  the  part  played  by  each 


individual    [ibid 
Lil  Singh'  v.  Emperor,  91  Ind 


Gas.  951;    5  L.  396; 
L  J,  170,  distingu- 


(1023)   A   I.    R.    (L  )  19;  27    Or 
ished. 

Appeal  from  an  order  of  the  Sessions 
Judge,  Sialkot,  dated  the  18th  December 
1924. 

Mr.  5.  R.  Puri,  for  the  Appellants. 

Kanwar  Dalip  Singh,  Government  Ad- 
vocate, for  the  Respondent. 

ORDER.—  (May  6,  1925).—  The  appeals 
of  Ganda  Singh  son  of  Khushal  Singh  and 
Bhan  Singh  are  accepted  and  it  is  ordered 
that  they  be  set  at  liberty. 

JUDGMENT.—  (May  15,  1925).—  A  very 
serious  riot  took  place  on  the  12th  April  1924 
at  village  Mahar  in  the  Sialkot  District  in 
which  three  men  Maula  Dad,  Imam  Din  and 
Nawabson  of  Umra  were  killed  and  four  men: 
TJmar  Din,  Hussain  Bakhsh,  Nawab  son  of 
Bulanda  and  Bakha  ware  injured:  Huasain 
Bakhsh  having  two  fingers  cut  off  and 
having  lost  in  consequence  the  use  of  both 
haads,  Twenty  men  were  seat  up  for 


whom  four  were  discharged  by  the  Commit- 
ting Magistrate,  eight  were  convicted  by  the 
Sessions  Judge  and  eight  were  acquitted. 
It  is  also  said  that  four  abscondere  took  pait 
in  the  riot.  Of  the  men  convicted  six, 
Partap  Singh,  Kartar  Singh,  Ajab  Singh 
Ganda  Singh  eon  of  Jiwan  Singh,  Amar 
Singh  and  Ganda  Singh  eon  of  Khushal 
Singh  have  been  sentenced  to  death. 
Sharam  Singh  son  of  Hawind  Singh  and 
Bhan  Singh  son  of  Atar  Singh  have  been 
sentenced  to  transportation  for  life.  All 
have  appealed  and  the  case  is  also  before 
us  for  consideration  of  the  question  of  the 
confirmation  of  the  death  sentences. 

After  hearing  the  arguments  addressed 
to  us  by  the  learned  Counsel  for  the  accused 
and  the  Crown  we  accepted  the  appeals  of 
Bhan  Singh  son  of  Atar  Singh  and  Ganda 
Singh  son  of  Khushal  Singh  finding  that 
the  evidence  was  not  sufficient  to  justify 
their  conviction.  After  further  considera- 
tion we  have  come  to  the  conclusion  that 
although  there  is  a  considerable  amount  of 
evidence  against  Sharm  Singh  and  Amar 
Singh  there  is  a  certain  element  of  doubt  in 
their  cases  also. 

In  the  case  of  Sharm  Singh,  Huasain 
Bakhsh  the  most  important  witness,  did  not 
identify  him  at  the  parade  held  in  Jail  though 
he,  subsequently,  picked  him  out  in  Court, 
and  although  he  was  identified  by  Nawab  son 
of  Bulanda  and  Bakha,  the  remaining  evi- 
dence against  him  is  not  sufficient  to  estab- 
lish beyond  all  possibility  of  doubt  that  he 
actually  took  part  in  the  riot. 

The  case  of  Amar  Singh  is  similar:  he 
also  was  not  identified  by  Husaain  Bakhsh 
in  gaol  nor  by  Ahmad  Din,  and  the  remain- 
ing evidence  in  his  case  also  is  not  con- 
clusive. 

We  acquit  both  these  men. 

The  facts  are  that  a  large  "bhangar  party 
consisting  of  some  20  men  armed  with1 
chhavis,  gandasas  and  lathis  and  headed,  it  is 
paid,  by  Sohan  Singh  Zaildar,  who  has  not 
been  sent  up  for  trial  came  from  the  village 
Bhula  to  village  Mahar.  They  marched  to  the 
house  of  Maula  Dad  deceased,  where  he  was 
sitting  with  Ahmad  Din  and  Hussain  Bakhsh 
his  brothers  and  Imam  Din  his  cousin.  They 
deliberately  picked  a  quarrel  and  attacked 
Hussin  Bakhsh  first  and  then  assaulted  the 
others  and  killed  and  injured  them. 

The  medical  evidence  shows  that  Maula 
Dad  who  was  killed  had  four  incised  wounds 
on  his  head  and  six  others  on  his  body  : 
Imam  Din  had  two  incited  wounds  on 


163 


PARTAP  SINGH  V.  BMF1I&0&. 


head  and  twelve  blows  from  a  lathi  and  was 
so  seriously  injured  that  he  could  not  be 
carried  to  the  hospital.  Nawabson  of  Umra 
had  three  injuries,  his  leg  having  been  cut 
right  through,  his  forearm  broken  and  his 
head  fractured.  Ahmad  Din  had  8  injuries, 
TJawab  13  andBakha  4.  Two  of  the  accused 
Partab  Singh  and  Kartar  Singh  were  found 
in  jail  to  have  been  injured,  Kartar  Singh 
having  an  incised  wound  on  the  back  of  the 
head  and  Partap  Singh  4  injuries  caused  by 
a  blunt  weapon.  Both  Counsel  for  the 
accused  and  Counsel  for  the  Crown  rely  on 
the  fact  of  these  two  men  having  been  in- 
jured, the  latter  pointing  out  that  the  medi- 
cal evidence  shows  that  the  injuries  must 
have  been  inflicted  at  or  about  the  time  of 
the  riot  and  that  no  satisfactory  explanation 
has  been  given  as  to  how  they  were  caused, 
the  former  urging  that  there  must  have  been 
a  general  melee  and  that  it  is  only  fair  to 
presume  that  it  was  the  members  of  the  vill- 
age Mahar  who  began  the  quarrel. 

^  We  will  first  deal  with  the  general  criti- 
cisms which  have  been  made  on  the;evidence 
produced  by  the  prosecution  and  will  then 
deal  with  the  case  of  each  accused. 

The  first  point  and  one  to  which  due  im- 
portance must  be  attached  is  that  the  leader 
of  the  bhangra  party  is  said  to  have  been 
Sohan  Singh  Zaildar,  who  has  not  been  sent 
up  for  trial,  and  Counsel  urges  with  con- 
siderable force  that  it  was  presumably  found 
in  the  course  of  the  investigation  that  he 
had  been  falsely  implicated  because  of  his 
prominent  position  and  that  this  fact  must 
be  taken  as  discrediting  the  whole  of  the  evi- 
dtnce  for  the  prosecution.  We  have  given 
due  weight  to  this  contention  and  have 
treated  the  evidence  with  extreme  caution 
throughout. 

In  addition  to  the  eye-witnesses  who  have 
given  evidence  in  Court  certain  statements 
were  recorded  with  a  view  to  their  being 
used  as  dying  declarations.  These  were  the 
statements  of  Hussain  Baksh,  Ahmad  Din, 
and  Nawab  son  of  Umra.  Of  these  only 
Nawab  son  of  Umra  died  and  it  is  only  his 
statement  which  can  be  treated  or  consider- 
ed as  dying  declaration.  This  was  recorded 
by  Muhammad  Bashir  Head  Constable,  who 
certified  in  Court  that  he  had  recorded 
it  correctly  and  that  Nawab  was  in  his 
senses  at  the  time.  Counsel  contends  that 
UMUsrauch  as  Muhammad  Bashir  did  not 
repeat  in  his  own  words  what  Nawab  said 
to  aim  this  statement  is  inadmissible,  In 


L8SL  0.1988] 

Ghazi  v.  Emperor  (1)  and  Abdul  Jalil  v. 
Empress  (2)  it  was  laid  down  that  such  state- 
ment must  be  proved  and  this  would  appear 
to  show  that  if  proved  they  are  admissible. 
We  also  find  that  it  has  been  clearly  laid 
down  in  Emperor  v.  Balaram  Das  (3)  that 
such  a  statement  is  admissible  in  proof  of  its 
own  contents  and  it  is  unnecessary  that  the 
person  who  recorded  it  should  repeat  exactly 
what  was  said.  In  ss.  159  and  160  of  the  Evi- 
dence Act  a  distinction  is  drawji  between  the 
manner  in  which  a  witness  may  refresh  his 
memory  by  referring  to  the  writing  he  has 
made  and  the  testimony  which  he  can  give 
of  facts  stated  in  the  document.  If  it  is 
merely  a  question  of  a  man  refreshing  his 
memory  the  document  itself  is  not  tendered 
in  evidence,  and  the  witness  merely  gives 
evidence  in  the  ordinary  way  after  reading 
what  he  had  written.  Section  160  deals 
with  the  case  where  in  spite  of  writing  a 
document  the  witness  has  not  got  specific 
recollection  of  the  facts  therein  recorded 
but  is  sure  that  they  were  correctly  record- 
ed. Where  this  is  the  case  the  witness 'is 
still  entitled  to  testify  to  the  facts  and  the 
document  itself  is  then  tendered  in  evidence. 
This  is  what  happens  in  cases  such  as  these 
and  the  fact  that  the  witness  does  not  say 
in  so  many  words  that  he  does  not  recollect 
exactly  what  the  witness  said,  which  he 
naturally  cannot  do,  does  not  affect  admis- 
sibility  of  the  evidence  which  he  gives. 
Following  Emperor  v.  Balaram  Das  (3)  we 
find  that  this  evidence  is  certainly  admis- 
sible and  we  take  the  same  view  as  was 
taken  in  Amir  Zaman  v.  Emperor  (4). 

The  next  point  on  which  the  Counsel  has 
laid  stress  is  the  evidence  of  identification, 
dealing  with  the  two  parades,  which  were 
held  at  village  Kalswala  and  in  Jail. 
At  the  first  of  these  parades  accused 
Nos.  1—6  were  not  present,  the  obvious 
reason  being  as  found  by  the  learned  Ses- 
sions Judge,  with  whom  we  agree,  that  it 
was  considered  unnecessary  to  include  them 
in  this  first  parade  as  they  and  their  names 
were  already  known  and  the  parade  was 
not  conducted  with  a  vitfw  to  sfed  which 
i&en  out  of  those,  who  were  arrested, 
could  be  identified  by  the  witnesses  but 
to  see  which  men  out  of  a  large  number  of 

(1)  14  Fnd,  Gas  417;  17  P.  R,  1911  Or.;  13  Or.  L.  J, 
225;  48  P  W.  R.  1911  Or. 

(9)  13  P.  R.  1886  Or. 

(3)  71  Ind.  Gas,  685;  49  0.  358;  (1922)  A,  L  R.  (0.) 
3fc2;  24  Or  L.  J.  221. 

.  (4)  88  lud.  Cas.  B61;  6  L.  100;    (1925)  A.  I  R.    (L.) 
&*,  26  Or.  L.  J,  1245, 


I.  0. 1926] 


RAH1MBE4  V.  MBPBROR, 


169 


over  250  the  witnesses  could  pick  out  as 
having  taken  part  in  the  riot.  The  criticism 
amounts  to  this  that  the  witnesses  them- 
selves do  not  in  all  cases  repeat  in  Court 
that  they  picked  out  certain  men,  that  the 
evidence  on  the  subject  consists  of  the 
statements  of  officers  who  conducted  the 
parade  and  who  tell  us  what  happened. 
This,  Counsel  urges,  is  secondary  or  cor- 
roborative and  not  primary  evidence  and, 
therefore,  by  itself  has  no  value.  Relying 
on  the  same  ruling  which  we  have  quoted 
above  we  find  that  this  evidence  is  admissi- 
ble. 

A  further  criticism  is  that  the  witnesses 
are  not  stated  to  have  told  the  officer  who 
conducted  the  parade  what  part  each  man 
took  in  the  riot.  This,  in  our  opinion,  is 
unnecessary.  It  has  to  be  shown  that  the 
witnesses  knew  what  they  were  doing  and 
understood  that  they  were  identifying  the 
men  who  took  part  in  the  riot,  and  this  has, 
in  our  opinion,  been  shown  to  have  happen- 
ed. Sardar  Hazara  Singh  Tahsildar  says 
that  he  told  them  to  pick  out  the  persons 
present  in  the  riot.  This  evidence  is  quite 
sufficient  and  it  was  unnecessary  for  him 
to  record  at  the  time  or  to  examine  the 
witnesses  as  to  the  part  played  by  each 
individual.  The  facts  are  not  the  same  as 
those  of  Lai  Singh  v.  Emperor  (5)  on  which 
Counsel  relies  for  there  the  notes  were 
merely  referred  to  and  nothing  more  and 
the  necessary  facts  were  not  established. 

The  fourth  general  criticism  isthatHussain 
Bakhsh  the  man  who  was  seriously  injured 
and  who  made  the  First  Information  Report 
has  given  a  different  statement  in  Court  in 
the  sense  that  he  says  that  he  was  so  serious- 
ly injured  that  he  lost'consciousness  and  did 
not  see  all  that  is  contained  in  First  Infor- 
mation Report.  This  is  not  of  any  great 
importance  and  we  are  satisfied  that  he  did 
not  see  exactly  what  part  each  of  the  rioters 
played  and  that  at  the  time  he  made  his 
First  Information  Report  he  was  not  able 
to  name  all  the  persons  who  took  part. 

We  now  turn  to  the  cases  of  the  indivi- 
dual accused. 

[After  discxissing  evidence  against  each 
accused  their  Lordships  concluded:—] 

There  can,  in  our  opinion,  be  no  question 
as  to  sentences  and  we  confirm  all  the  four 
sentences  of  death. 

s.  0,  Sentence  confirmed. 

.  (6)  91  Ind.  Oas.  95^;  5  It.  396;  <19W)  A- 1,  R.  (L.)  19; 
27  Or.  fc.  J,  170, 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  APPEAL  No.  12 1  OF  1924. 

July  16,  1924. 

Present:— Mr.  Baker,  J.  0. 

RAHIMBEG— ACCUSED — APPELLANT 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  s  297— 
Jury  trial- -Charge— Omission  to  read  material  wi* 
dence — Omission  to  explain  accused's  right  to  benefit 
of  doubt — Trial,  whether  vitiated. 

An  objection  that  in  '  "  '  .  "  's  charge  to  the 
Jury  the  Sessions  Judge  .  .  •  material  por- 

tions of  the  evidence  is  not  in  itself  sufficient  for  the 
reversal  of  the  verdict  of  the  Jury.  In  each  case  it 
must  be  a  question  whether  the  omission  to  read  the 
material  portion  of  the  evidence  was  such  as  to 
mislead  the  Jury  and  the  Court  of  Appeal  will  not 
interfere  if  it  has  not  prejudiced  the  accused,  [p.  109, 
col.  2,  p  170,  col.  1  ] 

Emperor  v  Appunna  Devappa,  5  Bom  L.  R  207  and 
Empress  v.  Rochia  Mohato,  7  C,  42,  8  0.  L.  R.  273;  3 
Ind.  Dec  (N  s)  577,  referred  to. 

The  omission  to  tell  the  Jury  that  the  accused  is 
entitled  to  the  benefit  of  any  reasonable  doubt  is  not 
a  misdirection  vitiating  the  trial,  though  as  a  matter 
of  practice  it  is  as  well  to  always  end  the  charge  with 
these  words,  [p  170,  col.  2] 

Criminal  appeal  against  an  order  of  the 
Additional  District  and  Sessions  Judge, 
Nagpur. 

Mr.  V.  N.  Herlekar,  for  the  Appellant. 

JUDGMENT.— The  appellant  has  been 
convicted  by  the  unanimous  verdict  of  the 
Jury  of  rape  and  sentenced  to  seven  years1 
rigorous  imprisonment  and  a  fine  of  Rs.  100 
by  the  Additional  Sessions  Judge,  Nagpur. 
*It  is  contended  that  the  charge  is  vitiated 
because  the  Sessions  Judge  has  not  laid 
the  evidence  before  the  Jury  and  that 
he  misdirected  them  in  certain  particulars 
which  are  given  in  the  grounds  of  appeal, 

I  have  read  the  charge  several  times  and 
have  also  read  the  whole  of  the  evidence, 
It  is  to  be  noted  that  the  evidence  is  not 
very  lengthy,  the  witnesses  on  whom  the 
case  depends  being  the  complainant  (P,  W. 
No.  1),  Ram  Narain,  (P.  W.  No.  2),  Nathu- 
lal,  (P.  W.  No.  7)  and  the  two  constables. 
The  learned  Pleader  for  the  appellant  .has 
referred  to  some  old  cases  which  lay  down 
that  the  whole  of  the  evidence  must  be 
read  out  to  the  Jury,  That  is  not  the  law 
now.  An  objection  that  in  delivering  hia 
charge  to  the  Jury  the  Sessions  Judge  did 
not  read  material  portions  of  the  evidence 
is  not  in  itself  sufficient  for  the  reversal  of 
the  verdict  of  the  Jury,  In  each  case  it 
must  be  a  question  whether  the  otmssioa 
to  read  the  material  portion  "of  the  evidence 


RAM  CHARAW  t»,  EMPEROR. 


[92  I,  P.  192flj 


was  such  as  to  mislead  the  Jury  and  the 
Opart  of  Appeal  will  not  interfere,  if  it 
has  not  prejudiced  the  accused,  Emperor 
v.  Appunna  Devappa  (1)  and  Empress  v. 
Rachia  Mahato  (2) 

The  learned  Additional  Sessions  Judge 
has  referred  in  para,  6  of  his  charge  to  the 
evidence  that  the  present  appellant  was 
inside  the  room  with  the  other  two  accused 
at  the  time  the  girl  was  heard  crying 
out,  and  that  one  man  left  the  room  after 
P.  W.  No.  2  went  to  call  the  Police,  In 
para.  5,  the  Judge  has  called  the  Jury's 
attention  to  the  discrepancies  in  the  evi- 
dence pointed  out  by  the  Pleader  for  the 
accused,  and  asked  them  whether  they  are 
such  as  to  lead  to  a  reasonable  conclusion 
that  the  statements  are  not  substantially 
true. 

I  am,  therefore,  of  opinion,  that  the 
Judge  put  the  case  fairly  before  the  Jury, 
though  perhaps  not  so  fully  as  he  might 
have  done. 

Objection  is  taken  to  certain  statements 
made  by  the  Judge  in  his  charge  They 
are  marked  (a),  (1)  in  the  memorandum  of 
appeal. 

Statement  (a)  regarding  the  First  Infor- 
mation Report  is  perfectly  unobjectionable. 
Statement  (6)    is  a  statement  of  evidence 
appearing  on  the  record.    So  is  statement 
(c).    The  fact  that  this  statement  was  made 
in  cross-examination,  not  in  examination- 
in-chief,  was  not  brought  to  the  notice  of 
the  Jury,  but    as    the  arguments  for  the 
defence  had  been  heard  that   day  and  the 
evidence  was  fresh  in    the    minds  of  the 
Jury  this  is  not  a  sufficient  ground  for  in- 
terference with  the  verdict. 
1   Statement  (d)  is  not  only  not  a  misdirec- 
tion but  a  statement  which  the  Judge   was 
bound   to  make  to  the  Jury.    It  was  his 
duty  to  ask  the  Jury  to  consider,  whether  if 
the  girl  was  ravished  by  two  men,  the  man 
other  than  Sarjerao  was  the  present  accus- 
ed.   I  do  not  understand  how  this  can  be 
made  a  ground  of  appeal. 
•  Statement  (e)  consists  of  two  parts.    The 
first  is  a  statement  of  a  well-known  fact  and 
the  Jury  was  asked  to  consider  the  medical 
evidence  in  the  light  of  that  fact. 

The  second  portion  is  a  statement  of  a 
fact  appearing  in  the  evidence  of  Shaikh 
Juman,  constable,  (P.  W.  No.  9).  The 
Judge  drew  the  attention  of  the  Jury  to 
the  fact  that  the  bundle  of  cotton  on  which 
'  (1)  5  Bom.  L.  R,  207, 

(2)  7  0,  42;  8  0.  L,  R.  273;  3  Ind.  Dec.  (M  s )  577, 


the  girl  is  alleged  to  have  been  lying  was 
not  produced,  and  to  the  question  whether 
the  girl's  lugda  was  under  her  person  at  the 
time  of  the  commission  of  the  offence. 

The  last  statement  is  that  lawyers  usually 
describe  such  evidence  as  has  been  given 
in  this  case  as  overwhelming  evidence 
against  the  accused.  It  would  have  been 
perhaps  better  if  the  Sessions  Judge  had 
not  expressed  his  opinion  of  the  evidence  in 
so  forcible  a  manner,  but  in  the  very  next 
sentence  he  invites  the  Jury  to  find  their 
own  opinion  on  the  facts  as  to  which  evi- 
dence has  been  given. 

The  omission  to  tell  the  Jury  that  the 
accused  is  entitled  to  the  benefit  of  any 
reasonable  doubt  is  not  a  misdirection  viti- 
ating the  trial,  though,  as  a  matter  of-prac- 
tice,  it  is  as  well  to  always  end  the  charge 
with  these  words. 

After  considering  all  the  statements  to 
which  exception  has  been  taken,  I  do  not 
think  there  was  any  misdirection  requiring 
the  interference  of  this  Court.  The  sen- 
tence, though  severe,  is  not  out  of  propor- 
tion to  the  heinous  nature  of  the  offence 
in  this  particular  case,  which  was  of  a 
peculiarly  revolting  character,  the  girl 
being  contined  in  a  room  in  a  serai  and 
ravished  by  two  men  in  succession  while 
the  chaukidar  of  the  serai  stood  by  with 
a  cane  threatening  to  beat  her  if  she  cried 
for  help. 

The  appeal  is  conssquently  dismissed 
without  notice  to  the  Crown. 

N.  H.  Appeal  dismissed, 


LAHORE  HIGH   COURT. 

CKIMIN^L  REVISION  No.  379  OF  1924. 

May  ?3,  1924. 

Present;— Mr.  Justice  Campbell. 
RAM  CHARAN  AND  ANOTHER— Ace QSED 
-  PBTITJ ONERS 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  s.  188— 
Offence  committed  in  Native  State  by  British  Indian, 
subject— Trial  in  British  India— Certificate  of  Politi- 
cal Agent,  necessity  of. 

Where  the  offence  of  kidnapping  has  been  com-' 
mitted  by  British  Indian  subjects  in  a  N-s'i1  ,i  *;••.  ••  iit 
is  not  triable  in  British  India  withoi.1  :.  •:,•.,  -iiv' 
of  the  Political  Agent,  [p,  172,  col.  1  ] 

Queen-Emprest  v.  Mastana,  11  P.  R.  1899  Or., 
followed. 

Queen-Empress  v,  Katharverumal.  13  M.  423;  2  Weir 


[92  I.  0. 1926] 

147;  4  Ind,  Dec.  (N,  s,)  1007  and  Queen-Empress  v,  Ram 
Sundar,  19  A.  109;  A.  W.  N,  (1896)  191;  9  Ind.  Dec. 
(N.  s.)  71,  referred  to. 

The  defect  of  the  absence  of  a  certificate  is  not 
curable  by  the  subsequent  production  of  the  certificate. 
[ibid.] 

Case  reported  by  the  Additional  Sessions 
Judge,  Gujranwala  at  8ialkot,  with  his 
No.  55- J  of  22nd  February  1924. 

FACTS  appear  from  the  following  re- 
port of  the  Additional  Sessions  Judge: — 
The  accused  on  being  charged  under  s.  363, 
Indian  Penal  Code,  by  Chaudkri  Muham- 
mad Ismail  Khan,  exercising  the  powers  of 
a  Magistrate  of  the  First  Class  in  the 
Gujranwala  District,  were  committed  to 
this  Court  by  order,  dated  9th  of  January 
1924,  to  stand  their  trial  in  this  Court  on 

the  said  charge. 
*  *  *  *  * 

Both  Ram  Charan  and  Musammat  Gopi 
are  Native  Indian  subjects  of  His  Majesty; 
they  are  charged  with  having  kidnapped 
the  two  minors  from  Jatauli  Kadim  which  is 
situate  within  the  Bharatpur  State  which 
is  without  the  limits  of  British  India  as  that 
term  is  defined  in  the  General  Clauses  Act, 
X  of  l£')/.  An  offence  under  s.  363,  Indian 
Penal  Co  le,  is  not  a  continuing  one,  and, 
therefore,  the  offence,  if  committed,  was 
committed  in  Jatauli  in  the  Bharatpur 
State.  Under  s.  188  of  the  Or.  P.  0.  the 
accused  Ram  Charan  and  Musammat  Gopi 
as  Native  Indian  subjects  of  His  Majesty 
having,  it  is  alleged,  committed  an  offence 
without  the  limits  of  British  India,  viz.,  in 
the  Bharatpur  State,  may  be  dealt  with 
in  respect  of  such  offence  as  if  it  had 
been  committed  in  the  place  where  the 
accused  are  found.  The  accused  Ram 
Charan  was  "found"  in  the  Bulandshahr 
Jail  where  he  was  and  is  serving  a  term 
of  rigorous  imprisonment  in  December  1922. 

Musammat  Gopi  was  "found"  and  arrest- 
ed on  the  alleged  charge  in  Aligarh  in  No- 
vember or  December  1922.  In  short  both 
the  accused  were  found  in  British  India 
but  outside  the  Punjab  in  the  Ignited 
Provinces,  and  could  have  been  dealt  with 
in  that  Province  only.  But  a  condition  pre- 
cedent to  this  dealing  with  the  said  accused 
is  laid  down  by  the  proviso  to  the  said 
section,  and  this  prohibits  any  inquiry  into 
the  said  charge  of  the  offence  of  kidnapp- 
ing without  a  certificate  from  the  Political 
Agent  of  Bharatpur  State  that  the  charges 
are  to  be  enquired  into  in  British  India. 
The  record  of  the  case  does  not  show  that 
such  certificate  has  been  obtained,  and 


RAM  OBARAN  V.  EMPEROR. 


171 


a  reply  received  to  the  enquiry  sent  to  the 
District  Magistrate,  Gujranwala,  confirms 
this.  Therefore,  the  Magistrate  at  Gujran- 
wala had  no  jurisdiction  to  enquire  into 
the  said  charge  for  the  following  rea- 
sons : — 

The  offence  was  committed  in  the  Bharat- 
pur State  and  is  only  triable  at  the  place 
where  the  accused  are  "found/1  i.  e.,  either 
in  the  Bulandshahr  or  Aligarh  Districts  as 
may  be  determined  by  the  Allahabad  High 
Court  on  a  certificate  given  by  the  Political 
Agent  of  the  Bharatpur  State  as  required 
by  s.  188  of  the  Cr.  P.  0.  The  provisions  of 
sub-s.  (4)  of  s.  181,  Cr.  P.  C.,  cannot  be  in- 
voked on  the  ground  that  the  minors  were 
conveyed,  concealed  or  detained  in  the 
Gujranwala  District  ap,  in  my  opinion,  this 
sub-section  does  not  apply  to  any  offence 
under  s.  363,  Indian  Penal  Code,  and,  second- 
ly, the  sub- section  only  provides  an  alterna- 
tive venue  when  the  offence  is  committed  in 
British  India.  Section  188  completely  ousts 
any  jurisdiction  exercisable  under  sub-s  ^(4) 
when  the  offence  is  committed  outside 
British  India. 

The  authorities  dealing  with  the  applica- 
tion of  s.  188  are:— S/tarnir  Khanv.  Empress 
(1),  Roda  v.  Empress  (2)  and  Queen-Em- 
press v.  Mastana  (3). 

The  one  applicable  to  the  present  case  is 
Queen-Empress  v.  Mastana  (3),  as  the  defect 
has  not  only  been  noticed  by  this  Court, 
but  attention  has  also  been  drawn  to  it  by 
the  learned  Public  Prosecutor. 

In  the  other  two  cases  cited  objection  was 
never  taken  to  the  want  of  jurisdiction,  and 
it  was,  therefore,  held  that  this  only  amount- 
ed to  an  irregularity  and  was  cured  by  the 
provisions  of  s.  537  of  Cr.  P.  C. 

For  the  above  reasons  and  following 
Queen  Empress  v.  Mastana  (3)  I  am  of  opin- 
ion that  the  accused  Ram  Charan  and 
Musammat  Gopi  have  not  been  validly  com- 
mitted to  this  Court,  and  I  submit  the  record 
for  vtne  orders  of  the  Hon'ble  High  Court 
with  a  recommendation  that  the  commit- 
ment be  quashed  under  s.  215,  Cr.  P.  C. 

The  other  two  cases  under  as.  420  and  368, 
Indian  Penal  Oode,  have  been  tried  at  the 
Sessions  held  on  the  18th  and  19th  February 
1924.  No  conflicting  findings  can  possibly 
result  from  this  course,  and  it  was  really 
unnecessary  to  have  committed  the  two 
cases  under  as.  363  and  368. 

(1)  3ri  P.  R.  1883  Cr, 

(2)  30  P.  R.  1889  Grt 


172 


UTTIM  StNOfl  V.  JODHAN  RAT, 


I  Q.  Id26j 


Mr  Jai  Lai,  Government  Advocate,  for 
the  Respondent. 

JUDGMENT. — The  accused  persons 
are  neither  present  nor  represented  before 
me,  and  I  express  no  opinion  upon  the 
suggestions  'of  the  learned  Sessions  Judge 
that  s.  181  (4),  Or.  P.  C0  does  not  apply  to 
any  offence  under  s.  363  of  the  Indian  Penal 
Code  and  that  s,  188  completely  ousts  any 
jurisdiction  exerciseable  under  B.  181  (4) 
when  the  offence  is  committed  outside 
British  India.  On  the  question  whether 
the  commitment  must  be  set  aside,  be- 
cause the  Committing  Magistrate  has  held 
an  enquiry  without  a  certificate  of  the 
Political  Agent  obtained  under  s  188, 
the  ruling  of  the  Chief  Court  reported 
as  Queen-  Empress  v.  Mastana  (3")  appears 
to  me  to  be  conclusive.  The  learned  Gov- 
ernment Advocate,  who  has  appeared,  at 
first  contended  on  the  strength  of  the  last 
few  words  of  the  judgment  that  in  that  case 
a  specific  objection  to  the  commitment  pro- 
ceedings had  been  raised  on  behalf  of  the 
accused  and  he  was  disposed  to  argue  that 
on  the  analogy  of  Shahmir  Khan  v.  Empress 
(1)  which  was  affirmed  by  a  Full  Bench  in 
Fateh  Din  v.  Emperor  (4)  the  defect  of  the 
absence  of  a  certificate  would  be  curable  by 
the  subsequent  production  of  a  certificate 
for  which  he  was  prepared  to  arrange,  The 
referring  order,  however,  of  Mr  Justice 
Maude  in  Queen-Empress  v  Mastana  (3), 
makes  it  clear  that  the  objection  to  the 
legality  of  the  commitment  order  was  raised 
by  the  Sessions  Judge  only  and  not  by  any 
of  the  accused.  The  case,  therefore,  was 
exactly  parallel  with  the  present  case,  and 
the  two  rulings  approved  in  the  decision, 
namely,  Queen-Empress  v.  Katharperumal 
(5)  and  Queen-Empress  v.  Ram  Sundar  (6) 
held  definitely  that  in  such  circumstances 
as  the  present  the  enquiry  held  by  the 
Magistrate  and  the  commitment  order  were 
wholly  void. 

Acting  under  s.  215,  Cr.  P.  0.,  I  quash  the 
commitment, 

K,  s.  D  Commitment  quashed. 

'(3)11P.  R.1899Cr. 

(4)  4  P.  K.  1902  Or;  21  P.  L.  K.  1902.  (P.  B.) 

(5)  13  M.  423;  2  Weir.  147;  4  Ind.  Dec.  (N.  s.)  1007. 

.  (6)  19  A.  109;  A.  W.  N.  (1896)  191;  9  Ind.  Dec.  (K.  e.) 


PATNA  HIGH  COURT. 

CRIMINAL  REVISION  No,  413  OF  1923, 

December  20, 1923. 
Present:— -Mr.  Justice  Adami  and 

Mr.  Justice  Foster. 
UTTIM  SINGH-PETITIONER 

versus 
JUDHAN  RAI—  OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  8.  J45— 
Dispute  concerning  immoveable  property — Arbitration , 
reference  to,  validity  of— Award  concerning  future 
possession,  whether  can  be  taken  iniu  consideration — 
Order  relating  to  property  not  referred  to  in  preli- 
minary order,  validity  of. 

Under  s.  145  of  the  Cr.  P.  0.  it  is  for  the  Court  to 
consider  which  of  the  parties  was  in  possession  of  the 
property  in  dispute  at  the  date  of  the  proceedings  or, 
in  some  cases,  within  two  months  previous  to  the  date 
of  the  proceedings.  The  scheme  of  the  enquiry  is 
retrospective  and  not  prospective,  There  might  be 
certain  circumstances  in  which  the  parties  may  agree 
that  the  Court  should  refer  the  matter  in  dispute  to 
arbitration  for  the  purpose  of  deciding  the  question 
as  to  who  was  in  actual  possession  at  the  time  of  the 
proceedings,  "but  the  question  as  to  future  possession 
in  such  a  proceeding  cannot  be  referred  to  arbitra- 
tion. The  law  does  not  allow  delegation  of  the 
jurisdiction  of  the  Court  under  s.  145  to  arbitrators. 
The  utmost  that  the  Code  allows  in  a  proceeding 
under  s  145  is  that  the  Court  may  direct  a  locfcl 
enquiry  and  bring  the  enquiry  report  on  the  record 
as  evidence,  [p.  173,  cols.  1  &  2.] 

If,  however,  the  Magistrate  has  before  him  clear 
and  undeniable  evidence  that  there  is  no  further 
likelihood  of  the  breach  of  peace  and  that  the  parties 
have  come  to  a  settlement  of  their  dispute,  the  Magis- 
trate must  drop  the  proceedings  In  such  a  case  a 
compromise  between  the  parties  may  be  taken  by  the 
Magistrate  as  evidence  for  an  order  to  be  passed 
under  cl.  (5)  of  s.  145  of  the  Cr.  r.  0.,  but  the  com- 
promise cannot  possibly  be  made  the  basis  of  an 
order  under  cl.  6  of  the  section,  [p.  173,  col  2.1 

A  Magistrate  has  no  jurisdiction  to  pass  an  order 
under  s.  145  of  the  Cr  P.  C  in  respect  of  property 
which  was  not  referred  to  in  the  initiatory  proceedings. 
[ibid.] 

Criminal  revision  from  an  order  of  the 
Sub-Divisional  Officer,  Sitamarhi,  dated  the 
15th  February  1U23. 

"FACTS.— In  a  proceeding  under  s.  145, 
Cr.  P.  (J.,  after  the  parties  had  filed  their 
written  statements,  it  was  agreed  that  the 
matter  should  be  referred  to  arbitration. 
The  award,  which  related  to  future  pos- 
session of  the  parties,  was  accepted  by  the 
Court  and  the  dispute  decided  accordingly. 

Mr.  Bhagwan  Prasad,  'for  the  Petitioner. 

Mr.  Gour  Chandra  Pal,  'for  -the  Opposite 
Party. 

JUDGMENT. 

Foster,  J.— [After  stating  the  facts, 
his  Lordship  .proceeded  as  i  follows :— ] 
^  The  main  question  with  which  this  revi- 
sion is  concerned  is  whether  a  reference  to 
arbitration,  such  as  was  made  in  this  case, 


[1 5  I.  0. 1926J 


SINQH  D.  JUDHAN  RAI. 


173 


can  be  made  the  basis  of  an  order  under 
s.  145.  It  appears  to  me  that  the  scheme 
of  the  section  is  against  such  a  proposition. 
As  the  wording  of  the  section  goes,  it  is  for 
the  Court  to  consider  who  was  in  posses- 
sion at  the  date  of  the  proceedings  or  (in 
some  cases)  within  two  months  previous  to 
the  date  of  the  proceedings.  So  the  scheme 
of  the  enquiry  is  retrospective  and  not  pro- 
spective. There  might  conceivably  be 
certain  instances  in  which  the  parties  have 
agreed  that  the  Court  should  refer  the 
matter  in  dispute  to  arbitration  for  the 
purpose  of  deciding  the  question  as  to  who 
is  in  actual  possession  at  the  time  of  the 
proceedings.  Apparently  such  a  procedure 
has  not  been  condemned.  In  the  case  of 
Taramani  Chaudhurani  v.  Gyanendra 
Mohan  Chaudhuri  (l)the  question  put  to  the 
arbitrators  was  :  who  was  in  possession  of 
the  land  in  dispute?  As  regards  the  case 
of  Haldhar  Singh  v.  Bulaki  Singh  (2)  which 
has  been  quoted  by  the  opposite  party,  I 
am  unable  to  find  from  the  report  of  that 
case  whether  the  arbitrators'  report  was  as 
to  actual  possession  at  the  moment  or  as  to 
future  possession  under  their  award.  In 
the  present  case  it  is  obvious  that  this  dis- 
tinction is  important,  because  in  the  order 
of  the  15th  February  Iy23,  the  Sub-Divi- 
sional Officer  states  that  the  lands  "will  be 
divided  amongst  the  parties."  So  the  order 
passed  by  the  Sub- Divisional  Officer  on  the 
arbitration  award  was  prospective  and  not 
retrospective.  This  appears  to  me  to  be  an 
impossible  foundation  for  the  formal  order 
which,  in  the  Or.  P.  C.,  which  was  in  force 
before  the  1st  of  September,  1^23,  was  for- 
mulated in  Sch.  V  (XXII).  In  that  formal 
drder  the  Magistrate  certifies  that  he  is 
satisfied  without  reference  to  the  merits  of 
the  claim  of  either  of  the  said  parties  to  the 
legal  right  of  possession  that  the  claim  of 
actual  possession  by  one  of  the  said  parties 
is  true. 

There  are  decided  cases  in  which  the  de- 
legation of  the  jurisdiction  of  the  Court, 
under  s.  145,  to  arbitrators  has  been  con- 
demned. In  the  case  of  Banwari  Lai 
$ukerjee  v.  Hriday  Chakravarti  (3)  this 
procedure  was  condemned  on  the  ground 
that  the  law  does  not  allow  delegation. 
The  utmost  that  the  Code  allows  in  a  pro- 
ceeding under  s.  145  is  that  the  Court  may 

(1)  7  0.  W,  N.  461. 

{»  44  Ind.  Caa.  122;  3  P.  L.  J.  246;  4  P.  L.  W,  104; 
J9  Or,  L.J.266. 
(3)  32  C>  552;  2  Cr,  L,  J,  347;  1  C,  L.  J,  432, 


direct  a  local  enquiry  and  bring  the  enquiry 
report  on  the  record  as  evidence.  In  the 
case  Hamidul  Huque  v.  Sheikh  Atait 
Hussain  (4)  the  procedure  was  also  con- 
demned on  the  ground  that  it  was  not  in 
accordance  with  the  specific  directions 
given  in  s.  145.  An  analogous  case  to  this, 
bearing  oat  the  same  principle,  is  to  be 
found  in  case  of  Sadhu  Biswas  v.  Mahammad 
Ali  Biswas  (5),  where  a  compromise  was  filed 
in  a  proceeding  under  s.  145.  The  import- 
ance of  this  last  quoted  ruling  is  that  it 
has  some  bearing  on  the  next  matter  which 
I  propose  to  discuss ;  that  if  the  Magistrate 
has  before  him  clear  and  undeniable  evi- 
dence that  there  is  no  more  likelihood  of  a 
breach  of  the  peace  and  that  the  parties 
have  come  to  a  settlement  of  their  disputes, 
it  is  obvious  that  the  Magistrate  must  drop 
the  proceedings.  In  this  last  case  it  has 
been  laid  down  that  a  compromise  can  only 
be  taken  by  the  Magistrate  as  evidence  for 
an  order  to  be  passed  under  cl.  (5)  of  s.  145 
and  cannot  possibly  be  made  the  basis  of 
an  order  passed  under  cl.  (6).  That  decision 
appears  to  me  to  govern  any  case  in  which 
an  arbitration  award  is  before  the  Court  and 
where  that  arbitration  refers  not  to  existirg 
and  past  possession  but  to  future  possession 
after  division  of  the  property  or  alteration 
of  the  existing  conditions. 

There  is  only  one  point  remaining.  It  is 
admitted  by  the  opposite  party  that  the 
proceedings  were  initiated  in  respect  of  39 
bighas  and  odd  and  that  the  final  order 
that  purports  to  have  been  passed  under 
s.  145  has  reference  to  82  bighas.  It  is  ob- 
vious that  the  Magistrate  had  no  jurisdic- 
tion to  pass  such  order  in  respect  of  land 
which  was  not  referred  to  in  the  initiatory 
proceedings. 

For  these  reasons  I  would  set  aside  the 
order  of  the  Sub- Divisional  Officer  on  the 
ground  that  it  is  an  order  which  he  had  no 
legal  authority  to  pass. 

Adami,  J.— I  agree, 

z.  it.  Order  set  aside. 

(4)  37  Ind.  Cas.  513;  2  P.  L.  J.  81;  1  P.  L.  W.  819;  18 
Cr.  L.J    141. 

(5)  9  Ind.  Oas.  167;  15  0.  W.  N.  568;  12  O*.  L.  J.  32, 


BHAG1RATH1  V. 


i.  o. 


CALCUTTA  HIGH  COURT. 

CRIMINAL  APPEAL  No.  77  OF  1925. 

June  21,  1925. 
Present: — Mr,  Justice  Suhrawardy  and 

Mr.  Justice  Panton. 

BHAQIRATHI  CHOWDHURY  AND  OTHERS 
— APPELLANTS 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  s  162— 
Statement  made  to  Police,  whether  admissible— Map 
containing  hearsay  matter,  whether  admissible,, 

In  the  course  of  a  Sessions  trial  the  Investigating 
Sub-Inspector  of  Police,  when  examined  as  a  prose- 
cution witness,  was  asked  whether  he  had  during  the 
t  :•.  -•  .•  •'•  •' examined  any  witnesses  on  behalf  of  the 
accused.  He  stated  that  he  had  examined  certain 
witnesses  but  that  they  had  denied  their  presence  at 
the  occurrence.  One  of  the  persons  named  by  the  Sub- 
Inspector  had  been  summoned  by  the  accused  as  a 
defence  witness. 

Held,  that  the  statement  of  the  Sub-Inspector  waa 
not  admissible  in  evidenca  having  regard  to  the 
provisions  of  s.  162  of  the  Or.  P.  0  [p  175,  col.  1  ] 

A  person  who  makes  a  map  in  a  criminal  case  ought 
not  to  put  upon  it  anything  more  than  what  he  sees 
himself.  Particulars  derived  from  witnesses  examined 
on  the  spot  should  not  be  noted  on  the  body  of  the 
map  but  on  a  separate  sheet  of  paper  annexed  to  the 
map  as  an  index  thereto,  [ibid.] 

Such  particulars  are  hearsay  evidence  and  are  not 
admissible.  Where  the  map  is  prepared  by  a  Police 
Officer,  such  particulars  are  also  inadmissible  under 
s.  162  of  the  Or.  P.  C.  [ibid] 

Criminal  appeal  against  an  order  of  the 
Sessions  Judge,  Rajshahi,  dated  the  6th 
December  1924. 

Babus  Debendra  Narain  Bhattacharjee 
and  Lalit  Mohan  Sanyal,  for  the  Appel- 
lants. 

-  Mr.  Khondkar  (Deputy    Legal    Remem- 
brancer), for  the  Crown, 

Babu  Khirode  Lai  Sen,  for  the  Com- 
plainant. 

JUDGMENT. 

Suhrawardy,  J.— This  appeal  is  by 
Bhagirathi  Chowdhury  and  four  others  who 
have  been  convicted  in  accordance  with  the 
majority  verdict  of  the  Jury  by  the  Sessions 
Judge  of  Rajshahi.  The  first  accused  has 
been  convicted  under  ss.  147  and  325, 
Indian  Penal  Code,  and  sentenced  under 
s.  325  to  five  years1  rigorous  imprisonment, 
no  separate  sentence  having  been  passed 
under  s.  147.  The  other  four  accused 
persons  have  been  convicted  under  ss.  325/ 
149,  Indian  Penal  Code,  and  sentenced  to 
three  years'  rigorous  imprisonment. 

The  riot  alleged  to  have  taken  place  was 
over  a  piece  of  land,  in  course  of  which,  it 
is  said,  one  Mir  Panchu  was  beaten  to  death, 


Several  objections  have  been  taken  on 
behalf  of  the  accused  to  the  address  by  the 
Judge  to  the  Jury;  but  it  is  sufficient  to 
refer  to  two  of  these,  as  in  our  opinion,  the 
others  are  not  important. 

The  first  objection  is  that  certain  state- 
ments have  been  admitted  by  the  learned 
Sessions  Judge  which  are  inadmissible  in 
evidence.  In  the  course  of  the  examination 
of  Ananta  Prosad  Das  (Sub  Inspector  of 
Police)  he  was  asked  in  examination-in-chief 
whether  he  examined  daring  the  course  of 
the  investigation  any  witness  on  behalf  of 
the  accused  and  he  said  that  he  had  ex- 
amined only  two  witnesses  Bartu  Chowdhury 
and  Daulot  Ghose  who  were  produced  before 
him  and  both  of  them  stated  that  they  were 
not  present  at  the  O3currence.  This,  it  is 
said,  is  in  contravention  of  the  provisions 
of  s.  162,  Cr.  P,  C,  That  section  says  that 
no  statement  made  by  any  person  to  a  Police 
Officer  in  the  course  of  an  investigation 
....  shall  be  used  for  any  purpose  at  any 
enquiry  or  trial ....  It  is  not  clear  why 
the  witness  was  made  to  make  this  state- 
ment; but  it  is  suggested  that  one  of  the 
persons  named  by  him  at  least,  namely, 
Daulot  Ghose,  was  a  witness,  cited  by  the 
defence  and,  therefore,  in  anticipation  of  the 
evidence  which  might  be  given  by  Daulot 
Ghose,  this  statement  was  made  by  the 
Inspector.  In  my  opinion  this  statemeht 
by  the  Sub-Inspector  is  not  .admissible. 
Section  162,  Cr.  P.  C,,  is  clear  enough  to 
exclude  any  statement  made  by  any  person 
and  directs  that  such  statement  shall  not 
be  used  for  any  purpose.  The  way  in  which 
this  evidence  has  been  brought  out  is  objec- 
tionable in  more  ways  than  one.  It  is  in 
direct  contravention  of  the  above  provision 
of  law  and  it  is  not  justified  by  any  other 
provision  of  law  which  makes  evidence  con- 
tradicting possible  evidence  of  a  possible 
witness  admissible  against  the  accused. 
The  mere  fact  that  one  of  the  persons  so 
named  by  the  Sub-Inspector  was  cited  by 
the  defence  did  not  justify  the  prosecution 
in  getting  out  a  statement  made  by  him 
in  anticipation  of  what  he  might  Bay.  This 
statement  by  the  Sub -Inspector  in  the  hear- 
ing of  the  Jury  must  have  apparently  pre- 
judiced the  case  for  the  defence  and  left  an 
impression  in  the  mind  of  the  Jury  that 
the  accused  produced  witnesses  in  support 
of  their  case  before  the  Sub-Inspector  and 
both  of  them  denied  any  knowledge  of  the 
occurrence,  This  statement  ig  not,  therefore! 
admissible, 


PALI  V,  EMPEROR. 


175 


The  second  ground  on  which  the  legality 
of  the  trial  is  assailed  is  that  the  map  pre- 
pared by  the  Sub-Inspector  and  placed 
before  the  Jury  contains  statements  of  wit- 
nesses and  hence  the  map  should  not  have 
been  placed  before  the  Jury  with  those 
statements  thereon.  There  are  two  very 
important  endorsements  on  the  map.  The 
first  is  against  the  point  marked  with  an 
arrow  and  runs  thus:  ''The  deceased  and 
Luddi  Sheikh  Peadas  stood  here  and  the 
deceased  received  lathi  blow  from  Bhagi- 
rathi  chowkidar  accused  while  standing 
here.11  In  another  part  of  the  map  certain 
dotted  lines  were  put  and  the  remark 
against  them  is,  "showing  the  route  taken 
by  the  deceased  on  being  chased  by  the 
accused  persons."  These  statements  were 
not  of  the  Sub-Inspector  fiom  his  personal 
knowledge  but  from  what  he  had  heard 
from  other  people  at  the  time  of  the  investi- 
gation. Such  statements  are,  therefore,  in- 
admissible under  s.  162,  Or.  P.  C.,  and  as 
hearsay  evidence.  The  impropriety  of  plac- 
ing maps  before  the  Jury  containing  state- 
ments of  witnesses  or  of  information  receiv- 
ed by  the  person  preparing  the  map  from 
other  persons  has  been  recently  pointed  out 
in  several  cases.  In  Emperor  y.  Abinash 
Chandra  Bose  (1),  the  learned  Chief  Justice 
has  fully  dealt  with  this  matter  and  it  has 
been  laid  down  that  "  a  person  who  makes 
a  map  in  a  criminal  case  ought  not  to  put 
Upon  it  anything  more  than  what  he  sees 
himsllf.  Particulars  derived  from  witnecses 
examined  on  the  spot  should  not  be  noted 
On  the  body  of  the  map  but  on  a  separate 
sheet  of  paper  annexed  to  the  map  as  an 
index  thereto/1  The  direction  given  here 
may  be  inconvenient  but  the  law  seems  to 
be  clear.  The  learned  Chief  Justice  in 
a  very  recent  case  to  which  my  learned 
brother  was  party  [Emperor  v.  Mofizel 
Peada  (2)  decided  on  the  1st  May  1925) 
referred  to  a  map  like  the  one  in  the  pre- 
sent case  and  remarked  that  the  map  placed 
before  the  Jury  was  a  clear  instance  of 
what  should  not  be  done,  and  observed  as 
follows:—  "Inlmy  j  udgment,  the  map  in  itspre- 
sent  state  ought  not  to  have  been  allowed  to 
be  placed  before  the  Jury.  If  it  was  necessary 
for  the  map  to  be  placed  before  the  Jury, 
the  proper  thing  to  be  done  was  to  have  a 
clean  copy  made  with  these  entries  omitted 

(D84Ind.  Gas.  651;  52  0. 172;  28  0.  W.  N.  995; 
(1984)  A.  I  R  (C.)  1029;  26  Cr.  L  J.  360. 

(2)  89  Ind.  Gas.  242;  29  C.  W.  N,  812;  (1925)  A,  1.  R, 
(0.)  909;  26  Cr,,  UJ,1298. 


r o  that  the  Jury  would  have  a  map  before 
them  which  would  not  have  prejudiced  their 
mind  in  any  way.''  In  my  judgment  apart 
from  the  instruction  in  the  Police  Regula- 
tions and  the  High  Court  Circular  Orders, 
it  is  highly  prejudicial  in  the  interest  of 
justice  to  allow  statements  which  may  or 
may  not  be  admissible  in  evidence  to  be  in- 
troduced in  a  case  by  indirect  means.  For 
instance,  the  map  prepared  by  the  Sub-Ins- 
pector from  certain  information  received 
from  another  person  introduces  a  statement 
made  by  that  person  and  it  is  possible  that 
the  person  who  gave  the  information  to  the 
Sub-Inspector  was  not  himself  competent 
to  make  the  statement  his  information  having, 
been  derived  from  others  not  before  the 
Court.  Apart  from  s.  162,  Cr.  P.  C.,  such 
statements  under  the  general  law  ought  not 
to  be  made  to  go  in  in  the  shape  of  entries 
in  maps.  The  trial  accordingly  has  been 
vitiated  by  the  introduction  of  these  pieces 
of  evidence  and,  in  my  opinion,  the  convic- 
tion cannot  stand, 

In  the  result  the  conviction  of  and  the 
sentences  passed  upon  the  appellants  should 
be  set  aside  and  a  re-trial  ordered.  The 
appellants  Nos.  2  to  5  will  remain  on  bail 
and  the  appellant  No.  1  in  custody  until  fur- 
ther orders  by  the  Magistrate. 

Panton,  J.— I  agree. 

z.  K.  Conviction  set  aside. 


LAHORE  HIGH  COURT. 

CHIMJNAL  APPEAL  No.  227  OF  1925. 

April  6,  1925. 
Present : — Mr.  Justice  Jai  Lai, 

PALI   AND  OTHERS — ACCUSED — APPfiLLANTS 

verms 
EMPEROR— RESPONDENT. 

Criminal  trial — Practice— Conviction,  whether  can 
be.  based  on  interested  and  contradictory  evidence. 

It  is  not  safe  to  base  the  conviction  of  an  accused 
pjrson  on  he  evidence  of  interested  witnebSes  who, 
were  not  mentioned  in  the  First  Information  Report  as 
eye-witnesses  of  the  occurrence  and  whose  evidence  is 
contradicted  by  other  witnesses  produced  ou  behalf  of 
the  prosecution.  |_p.  176,  col.  2.] 

Criminal  appeal  from  an  order  of  the 
Magistrate  First  Class,  exercising  enhanced 
powers  under  s.  30,  Cr,  P.  C.,  Ferozepur, 
dated  the  7th  February  1925. 

Dr.  Nand  LaZ,  for  the  Appellants. 

Mr,  C.  If.  Cardon  Noad,  Assistant  Legal 
Remembrancer,  for  the  Respondent. 

JUDGMENT.— Pali,  Chanan  and  Sar- 
wan,  sons  of  Nikka  Jat,  have- been  convict^ 


176 


PALI  V.  EMPEROR, 


[92  I.  0.  1826J 


ed,  the  first  named  under  s.  324/109  and 
the  last  two  under  s.  304,  Part  II  of  the 
Indian  Penal  Code,  and  have  been  sentenced 
to  one  and  six  years1  rigorous  imprison- 
ment respectively.  They  have  all  appealed 
to  this  Court  and  I  have  heard  Dr.  Nand 
Lai  on  their  behalf  and  the  Assistant  Legal 
Remembrancer  on  behalf  of. the  Crown. 

The  case  for  the  prosecution  is  that 
Nikka  father  of  the  convicts  owed  some 
money  to  one  Kishen  Singh  on  a  number 
of  deeds.  On  the  13th  of  November  1924 
he  consolidated  all  the  previous  loans  into 
one  and  effected  a  mortgage  of  his  property 
in  favour  of  Kishen  Singh  and  had  the 
mortgage  attested  before  the  Naib-Tahsil- 
dar.  The  former  mortgage  deeds  had  to 
be  returned  to  the  ••  ;  • ' .-  ,  :  and  the  Naib- 
Tahsildar  ordered  Ram  Kattan  a  Patwari 
to  arvage  ]  for  the  return  of  the  deeds.  On 
the  14th  of  December  the  parties  came  to 
the  Patwari,  but  there  was  some  difference 
of  opinion  as  to  the  manner  in  which  the 
former  deeds  had  to  be  dealt  with.  The 
result  was  that  the  parties  quarrelled  and  the 
quarrel  between  the  parties  led  to  the  Pat- 
wari being  abused  by  the  relations  of  Nikka. 
The  Patwari  left  the  place  on  a  pony  in 
order  to  report  the  matter  to  the  Naib-Tah- 
sildar  who  was  encamping  in  a  village  a 
few  miles  away.  During  the  absence  of 
the  Patwari  his  brother  Durga  Das  passed 
in  front  of  the  house  of  Nikka  and  told  the 
three  appellants  that  his  brother  had  gone  to 
make  a  report  to  the  Naib-Tahsildar  and 
that  they  would  be  ruined.  On  this  all 
three  appellants  are  alleged  to  have  come 
out  of  their  house  armed  with  dangs. 
Sarwan  and  Chanan  beat  him.  Durga  Das 
fell  down,  Pali  was  going  to  strike  him 
but  on  the  bye-standers  askinghim  to  desist 
and  finding  that  Durga  Das  had  fallen  on  the 
ground  he  did  not  actually  strike  him.  In- 
formation was  immediately  conveyed  to 
the  Patwari  of  this  incident.  He  came 
back  soon  after  the  assault.  The  deceased 
died  as  a  result  of  the  injuries  received 
the  next  morning. 

Sarwan  Singh  admits  his  presence,  but 
gays  that  he  waa  abused  by  the  deceased 
who  along  with  another  person  attacked 
Mm.  He  is  unable  to  explain  how  the  de- 
ceased received  these  injuries.  He  denies 
the  presence  of  his  two  brothers.  Pali  and 
Ohanan  both  deny  their  presence  at  the 
fight. 

The  First  Information  Report  was  made  by 
the  Patwari  Ram  Rattan,  who  has  appeared 


as  P.  W.  No,  1.  This  report  was  made' after 
Ihe  death  of  the  deceased,  and,  therefore,  at 
a  time  when  the  informant  had  presum- 
ably ascertained  the  full  facts  of  the  inci- 
dent, There  two  Nathu*  and  a  Pohu  were 
mentioned  as  eye-witnesses.  At  the  trial 
Anna  Chaud,  Sucha  Singh  and  Pohu  were 
produced  as  eye-witnesses,  Pohu  does  not 
support  the  prosecution.  On  the  other 
hand  he  distinctly  contradicts  the  version 
put  forward  by  the  prosecution.  Amin 
Chand  is  a  son  of  Ram  Rattan  Patwari.  and, 
therefore,  a  nephew  of  the  deceased.  Sucha 
Singh  is  a  son  of  Kishen  Singh  the  mort- 
gagee. Both  these  witnesses  are  obviously 
interested.  Kishen  Singh  states  that  when 
information  of  the  incident  was  'first  con- 
veyed to  the  Patwari  by  Bainka,  his  son,  the 
names  of  Chanan  and  Sarwan  alone  were 
mentioned  as  the  assailants.  In  my  opin- 
ion it  will  not  be  safe  to  uphold  the"  con- 
viction of  Chanan  and  Pali  on  the  evidence 
of  Sucha  and  Amin  Chand,  specially^  con- 
sidering that  they  were  not,  mentioned  in  the 
First  Information  Report  as  eye-witnesses 
and  that  their  evidence  is  contradicted  by 
other  witnesses  produced  on  behalf  of  the 
prosecution. 

The  case  of  Sarwan,  however,  stands  on 
a  different  footing.  He  admits  his  pre- 
sence and  some  sort  of  quarrel  with  the 
deceased,  but  makes  an  obviously  absurd 
statement  that  he  does  not  know  how  the 
deceased  received  his  injuries.  The  evi- 
dence produced  on  his  behalf  is  unreliable 
and  is  open  to  the  same  criticism  as  the 
statement  of  Sarwan.  In  my  opinion  Sar- 
wan must  be  held  responsible  for  the  in- 
juries caused  to  the  deceased.  The  learned 
Counsel  on  behalf  of  Sarwan  claimed  the 
benefit  of  a  right  of  private  defence  on 
behalf  of  Sarwan.  In  my  opinion  no  facts 
entitling  the  convict  to  any  such  right  have 
been  established.  It  was  then  contended 
that  in  any  case  Sarwan  acted  under  grave 
and  sudden  provocation  There  is  no  force  in, 
this  contention  also.  The  use  of  the  langu- 
age imputed  to  Durga  Das  does  not  in  any 
sense  amount  to  grave  and  sudden  provo- 
cation, 

I  accept  the  appeals  of  Pali  and  Chanan 
and  acquitting  them  order  their  release 
forthwith.  The  conviction  and  sentence  of 
Sarwau  are  confirmed  and  his  appeal  is  dis- 
missed. 

z.  K.  Appeal  partly  accepted, 


1.  U. 


RATISA  KOBft  V, 


PATNAHBBil  6OURT. 

PROM  APPELLATE  DECREE  No.  1254 

OF19S2. 
June  24,  1925. 
Present:—  Mr.  Justice  Adami  and   . 

Mr.  Justice  Sen. 

Mutammat  BATISA  KUBK—  PLAINTIFF- 
APPELLANT 

versus 

RAJA  RAM  PANDBY  AND  OTHERS 
—  DEFENDANTS  —  RESPONDENTS. 

Pleadings—  -Adverse  possession,  plea  of  Appeal— 
Plea,  whether  can  be  taken—  Limitation,  commencement 
of,  during  lifetime  of  full  owner  —  Death  of  full  owner 
—  Succession  by  limited  owner—  Suspension  of  limi- 
tation. 

Ordinarily  a  plea  of  adverse  possession  should  be 
distinctly  raised  in  the  pleadings  ond  should  also 
form  the  subject-matter  of  an  issue,  but  a  party  may 
be  allowed  to  succeed  on  a  title  by  adverse  posses- 
sion pleaded  for  the  first  time  in  the  Court  of  Appeal, 
if  such  a  case  arises  on  facts  stated  in  th^  pleadings 
and  the  opposite  party  ia  not  taken  by  surprise.  [p  178, 
col.  1.] 

Once  limitation  has  commenced  to  run  in  the  lifo- 
time  of  a  full  owner  it  is  not  suspended  by  reason  of 
the  fact  that  the  full  owner  dies  and  is  succeeded  by 
a  limited  owner,  [ibid.] 

Appeal  against  a  decision  of  the  Ad- 
ditional Subordinate  Judge,  Saran,  dated 
the1  Itfth  August  1922,  reversing  that  of  the 
Additional  Munsif,  Siwan,  dated  the  26th 
November  1921. 

Mr.  N.  N.  Sinha,  for  the  Appellant. 

Mr.  H.  N.  Prasad,  for  the  Respondents. 

JUDGMENT, 

SOU*  J*  —  This  appeal  arises  out  of  a  suit 
by  the  plaintiff-appellant  for  a  declaration 
that  a  deed  of  zerpeshgi  dated  the  20th 
December  1907  executed  by  Musammat 
Jnderbaso  in  favour  of  the  defendant  No.  1 
was  fraudulent  and  collusive  and  without 
legal  necessity;  that  the  said  mortgagor 
had  no  right  or  title  to  execute  the  zerpeshgi 
deed  and  that,  therefore,  it  was  not  opera- 
4ive  on  plaintiff  ^ho  had  inherited  the  land 
in  dispttte  from  her  father  Sadhu  Dubey. 

The  <jase  of  the  plaintiff  was  that  one 
Sheo  Dubey  had  two  sons  Nakched  and 
Chttlhai;  that  Nakched  had  a  son  Dukhi 
•Dubey  and  OhtiHfai  had  a  son  Sadhu  Dubey; 
,thut  Dukhi  and  Sadhu  were  joint;  that 
Dukhi  died  and  Sadhu^came  into  the  family 
ptop&rty  by  survivorship,  that  after  Sadhu's 
'death  hie  -widow  Musammat  Jharo  succeed- 
ed htef  s&d*tfaatt  after  Musammat  Jharo  the 
inherited  the  property  in  suit  from 
father.  :  The  -  ptoifi  tiff  alleged  that 
Kuer,  the  widow  of  Dukhi,  illegal- 
ly «ad  fraudulently  executed  a  defed  of 
i  dated  the  20th  December  1907  in 

12 


RAM  PANDEY.  17? 

favour  of  her  brother,  the  defendant  No,  1, 
who  in  turn  assigned  the  mortgage  in  favour 
of  defendant  No.  2.  The  case  for  the  de- 
fence was  that  the  plaintiff  was  not  the 
daughter  of  Sadhu  and  Jharo;  that  Dukhi 
and  Sadhu  werenot  joint  when  Dukhi  died 
that  upon  Dukhi's  death  Inderbaso  Kuer 
succeeded  to  his  property  and  upon  her 
death  her  daughter  Sona  Kuer  succeeded. 
The  defendant  No.  1  alleged  that  he  was 
the  daughter's  son  of  Inderbaso,  that  is, the 
son  of  Sona  Kuer  and  not  the  brother  pf 
Inderbaso  Kuer,  as  alleged  by  the  plaintifr. 
The  learned  Munsif  held  that  the  plaintiff 
was  the  daughter  of  Sadhu  Dubey;  that  the 
zcrpeshgi  deed  was  fraudulent  and  collusive; 
that  Dukhi  died  whilst  living  joint  with 
Sadhu  and  that  defendant  No.  1  is  the 
brother  of  Inderbaso;  and  he  decreed  the 
suit.  On  appeal,  the  learned  Subordinate 
Judge  affirmed  the  finding  that  the  plaint- 
iff was  the  daughter  of  Sadhu;  but  he  held 
that,  even  assuming  that  Inderbaso,  the 
mortgagor  of  defendant  No.  1,  had  no  title 
to  the  land  in  suit,  the  defendant  No.  1 
having  got  possession  of  the  land  in  1907 
on  the  basis  of  his  zerpeshgi  and  having 
continued  in  possession  for  over  12  years 
his  title  was  perfected  by  adverse  posses- 
sion. He,  therefore,  allowed  the  appeal  and 
dismissed  the  suit. 

It  ia  contended  before  us,  first,  that  the 
question  of  adverse  possession  wa<*  not  in 
issue  and  that  the  Court  of  Appeal  was  not 
competent  to  raise  it  or  pass  his  decision 
on  it.  Secondly,  that  the  question  whether 
Dukhi  or  Sadhu  were  joint  or  separate  was 
not  gone  into  by  the  Court  of  Appeal;  that 
he  should  have  gone  into  the  question 
fully. 

There  is  no  doubt  that  title  by  adverse 
possession  does  not  appear  to  have  been, 
raised  in  the  pleadings,  but  the  principle 
has  often  been  laid  down  that  a  party  may 
be  allowed  to  succeed  on  a  title  by  Adverse 
possession  pleaded  for  the  first  time  in  the 
Court  61  Appeal  if  such  a  case  arises  on 
facts  stated  in  the  pleadings  and  the  party 
is  not  taken  by  surprise.  The  learned  Sub- 
ordinate Judge  bases  his  decision  o^  the 
following  facts.  He  finds  that  as  ,early  aa 
1898  in  the  Cadastral  Sarvey  Inderbaso 
Kuer's  name  is  recorded  in  the  survey 
khatian,  and  he  observes  that  this 'entry 
must  be  regarded  as  a  presumptive  piece  of 
evidence  of  possession  of  fHumwimat  Inder- 
baso, He  finds  that  in  1901  there  was  a 
zerpeshgi  in  favour  of  defendant  No.  J 


178 

granted  by  Inderbaso  Kuer;  he  finds  that 
in  1907  the  zerpeshgi  in  suit  was  executed; 
that  the    dues  of  the  previous  bond  were 
satisfied  out  of  the  consideration  of  the  dis- 
puted   zerpeshgi  in    favour    of  defendant 
No.  1.    These  two  old  registered  bond?,  he 
observes,  executed  so  long  ago  as  1901  and 
1907  show  that  Musammat  Inderbaso  exer- 
cised acts  of  possession  over  the  disputed 
land.    He  also  records  it  as  an  admitted  fact 
thatSadhu,  the  father  of  the  plaintiff-appel- 
lant, "died  seven  or  eight  years  ago,11  and  that 
the  defendant's  possession  over  the  land  in 
suit  commenced   during    Sadhu's  lifetime, 
and  further  that  admittedly   he  is  still  in 
possession.    He  also  states  that  the  witness- 
es of  the  plaintiff  had  to  admit  that  plaint- 
iff never     got  possession    of  the  land  in 
suit;  that    in  fact  not  a  single  witness  exa- 
mined by    the  plaintiff  spoke  a  word  about 
the  possession  of  the   plaintiff  or  her  pre- 
decessor Sadhu  over  the  land  in  suit.    It  is 
also  found  that  at  the   Revisional  Survey  of 
1919,    the  name    of  defendant  No.  1   was 
entered  as  being  in   possession  as  zerpesh- 
gidar ^  of    Inderbaso.      Now    most    of  the 
material  facts  above  mentioned  were  stated 
in  the  pleadings  and  evidence  was  gone 
into  in  detail  on  all   the  points.     On   the 
principle  laid  down  in  the  case  of  Lilabati 
Misrainv.    Bishen  Chobey  (1)  the  learned 
Subordinate    Judge  rightly  comes  to  the 
conclusion  that  limitation  "having  once  com- 
menced to  run  in    the  lifetime  of  a  full 
owner  cannot  be  taken  to  be  suspended  if 
he  dies    and  is    succeeded  by  a    limited 
owner.    Upon    the  facts  found  and  upon 
the  facts  appearing  in   the  pteadii/gs  I  am 
inclined   to  think  that  the  finding  as  to 
adverse    possession     is     well-sustainable. 
Ordinarily  the  principle,  no  doubt,  holds 
good    that  adverse    possession  should  be 
distinctly    raised    in   the    pleadings  and 
should  also  form  the  subject-matter  of  an 
issue,  but  where  the  fact  is  so  clear  and  un- 
mistakable that  the  plaintiff  has  never  been 
in  possession  of  the  land  claimed  for  nearly 
22  years  and  where,  on  the  other  hand,  pos- 
session   is  exercised  adversely   to  him  as 
found  in  the  present  case,  I  see   no  reason 
for  interference. 

The  appeal  is  dismissed  with  costs. 
Adami,  J.— I  agree, 

z-  K-  Appeal  dismissed. 

(1)  6  0,  L.  J,  621  at  p,  635 


EELU  MAL.  [521.  0.  1926] 

LAHORE  HIGH  COURT. 

MISCELLANEOUS  SECOND  CIVIL  APPEAL 
<Fo.  80  OF  1925. 
H»y  20,  1925. 

.     Present:— MV.  Justice  Zafar  Ali. 
BARK  AT  AND  BOTHERS— DEFENDANTS 
— APPELLANTS 

versus 

RELUMAL.AND  OTHERS— :Pi, AI NTIFFS— 
RESPONDENTS. 

Limitation  Act  (IX  of  1908),  Sch.  7,  Art.  IS5  - 
Mortgage,  with  possession—  Suit  by  mortgagee  to  recover 
possession — Limitation,  commencement  of — Submersion 
of  land,  effect  of. 

In  the  case  of  a  mortgage  with  possession  the  mort- 
gagor is  liable  to  deliver  pussession  of  the  mortgaged 
property  to  the  mortgagee  om  the  date  of  the  mort- 
gage, but  is  not  bound  to  do  so  until  the  "  •••  .•  L.  ._» 
asks  for  or  seeks  to  enforce  his  right  to  possession.  If 
the  latter  fails  to  do  so,  the  mortgagor's  possession 
cannot  be  said  to  be  that  of  a  trespasser  or  wrong-doer. 
[p  179,  col  1] 

The  mortgagor's  right  to  possession,  however,  deter- 
mines on  the  date  of  the  mortgage,  and  under  Art  135 
ot  Sch  I  to  the  Limitation.  Act,  a  suit  by  the  mortgagee 
to  recover  possession  of  the  mortgaged  propeity  must 
be  brought  within  twelve  years  of  such  d'tte.  Where, 
after  such  date  the  land  mortgaged  becomes  sub- 
merged and  is  taken  possession  of  by  the  mortgagor 
on  its  re-appearanre,  the  mortgagor  will  be  deemed 
to  have  remained  in  constructive  possession  thereof 
during  the  period  of  submersion  and  time  will  be 
deemed  to  have  continued  to  run  against  the  mort- 
gagee during  the  period  of  submersion.  Jn  any  case, 
time  having  begun  to  run  against  the  mortgagee  from 
the  date  of  the  mortgage,  the  subsequent  submersion 
of  the  land  would  not  have  the  effect  of  stopping  it. 
[ibid  ] 

Miscellaneous  second  appeal  from  an 
order  of  the  District  Judge,  Hoshiarpur, 
dated  the  13th  October  1924,  reversing  that 
of  the  Subordinate  Judge,  Second  Class, 
Hoshiarpur,  dated  the  15th  January  1924. 

Sheikh  Niaz  Mohammad,  for  the  Appel- 
lants. 

Mr.  N.  C.  Pandit  and  Lala  Hargopal,  for 
the  Respondents, 

JUDGMENT."-The  only  question  for 
determination  in  this  second  appeal  is  whe- 
ther the  plaintiffs'  suit  for  possession  of 
the  land  mortgaged  to  them  was  barred  by 
time  or  not.  The  Trial  Court  decreed  the 
suit  in  respect  of  that  portion  of  the  land 
which  had  been  in  possession  of  a  prior 
mortgagee  and  was  redeemed  by  the  plaint- 
iffs in  1921,  but  dismissed  the  suit  with 
regard  .to  the  rest  on  the  ground  that  it 
was  barred  by  time.  On  appeal  by  the 
plaintiffs,  the  learned  District  Judge  came 
to  the  conclusion  that  the  suit  was  within 
time  in  respect  of  the  rest  also  by  virtue  of 
a  certain  condition  embodied  in  the  mort- 
gage deed,  It  is  contended  on  behalf  o{ 


p»l  I.  0. 1&26] 


LURE^TlDS  EKKA  V.  D&UKI  KOBRl. 


the  defendants-appellants  that  the  said 
condition  did  not  warrant  the  conclusion 
drawn  by  the  learned  District  Judge. 

The  facts,  that  need  be  stated  here  for 
the  purpose  of  the  disposing  of  this  appeal, 
are  briefly  as  below :  — 

The  land  is  situated  on  the  banks  of  the 
river  Sutlej  and  is  liable  to  submersion 
under  water,  but,  a3  found  by  the  learned 
District  Judge,  the  whole  of  the  land  mort- 
gaged was  out  of  water  at  the  time  of  the 
mortgage,  that  is,  on  the  25th  June  1894, 
which  is  the  date  of  the  registered  deed  of 
mortgage.  The  mortgagor's  right  to  pos- 
session, therefore,  determined  on  that  very 
date  as  the  mortgage  was  with  possession, 
and  under  Art.  135  of  the  Limitation  Act, 
the  suit  for  possession  should  have  been 
brought  within  12  years  from  that  date. 
Limitation  began  to  run  against  the  mort- 
gagee from  the  Paid  date,  but  a  consider- 
able portion  of  the  land  remained  submerg- 
ed under  water  from  190304  to  1911-12, 
and  the  learned  Counsel  for  the  plaintiffs- 
respondents  contends  that  the  mortgagee 
should  be  deemed  to  have  been  in  construc- 
tive possession  of  the  land  during  this 
period,  because  he  argues,  the  mortgagors 
were  trespassers  from  the  date  of  the  mort- 
gage and  their  possession  as  trespassers 
and  wrong-doers  should  be  deemed  to  have 
terminated  with  the  submersion  of  the  land. 
But  *'the  learned  Counsel  could  cite  no 
authority  in  support  of  his  proposition  that 
in  case  of  every  mortgage  with  possession, 
the  mortgagor  becomes  a  trespasser  and 
wrong- doer  if  he  remains  in  possession  after 
the  fruriif.iLv  The  mortgagor  is,  no  doubt, 
liable  to  deliver  possession  to  the  mort- 
gagee, but  is  not  bound  to  do  so  until  the 
mortgagee  asks  for  or  seeks  to  enforce  his 
right  to  possession.  If  the  latter  fails  to 
do  so,  the  mortgagor's  possession  cannot 
be  said  to  be  that  of  a  trespasser  or  wrong- 
doer. 

As  the  time  began  to  run  from  the  date 
of  the  mortgage,  the  subsequent  submer- 
sion of  the  land  could  not  have  had  the 
effect  of  stopping  it.  Further  the  mort- 
gagor, who  was  in  actual  possession  of  the 
land  before  submersion,  should  be  deemed 
to  have  remained  in  constructive  possession 
thereof  after  submersion  as  evidenced  by 
his  having  taken  actual  possession  when 
the  land  emerged  from  the  river.  It  cannot 
be  said  that  the  mortgagee,  who  had  never 
obtained  possession,  remained  in  construc- 


possession so  long  as  the  land  was  under 
the  water. 

The  condition  which,  according  to  the 
learned  District  Judge,  gave  the  mortgagee 
a  fresh  cause  of  action  for  suing  for  posses- 
sion every  time  that  the  land  emerged  after 
submersion  runs  as  follows: — 

"Jis  qadar  arazi  kul  khata  se  khwah 
qabza  murtahin,  khivali  ba  qabza  muzhiran 
(rahinan)  burd  ho  jawe  to  us  mense  bawajih 
hissa  marhuna  ke  zimawari  murtahinan  ke 
samjhi  jaioegi,  aur  jis  qadar  arazi  haramad 
hogi  us  men  se  bhi  murtahin  bawajih  hissa 
marhuna  ke  zamin  lene  ka  mustahiq  hoga" 

Now,  the  property  mortgaged  was  only  a 
share  in  an  undivided  joint  holding  and, 
therefore,  this  condition  gave  expression  to 
the  ordinary  rights  and  liabilities  of  all  the 
co  sharers  following  each  submersion  or 
re-appearance  of  the  land.  The  condition 
does  not  create  any  new  right,  that  is,  a 
right,  which  the  mortgagee  would  not  have 
been  entitled  to  but  for  the  stipulation  in 
question.  If  the  mortgagee  had  once  taken 
possession,  he  would  have  remained  in  con- 
structive possession  after  the  submersion 
of  the  land  and  been  entitled  as  matter  of 
course,  to  take  possession  of  it  on  its  re- 
appearance. Thus  the  condition  does  not 
create  any  right  which  the  mortgagee  had 
not  already  got  as  such.  The  mortgagee's 
cause  of  action  arose  when  the  mortgagor's 
right  of  possession  determined,  and  as  that 
right  had  once  determined,  no  fresh  cause 
of  action  could  be  said  to  have  arisen 
after  that.  The  lower  Appellate  Court's  in- 
terpretation of  the  condition  would  lead  to 
the  conclusion  that  a  fresh  cause  of  action 
would  arise  even  if  the  first  submersion 
should  have  taken  place  more  than  12  years 
after  the  mortgage. 

In  view  of  what  has  been  stated  above 
I  accept  the  appeal  with  costs  and,  revers- 
ing the  order  of  the  lower  Appellate  Court, 
restore  that  of  the  Trial  Court. 

z.  K.     '  Appeal  accepted. 


PATNA  HIGH  COURT* 

CIVIL  REVISION  Nos.  381  AND  382  OF  1923. 

March  13,  1925. 

Present: — Justice  Sir  Jwala  Prasad,  KT. 
LAURENTIUS  EKKA— PETITIONED 

versus 

DHUKI  KOERI— OPPOSITE  PARTV, 
Civil  Procedure  Code  (Act  V  of  1908),  0.  Ill,  rr.  j 


1SU 


EKKA  V.  DIJUKI  KOEBt. 


.[92  I.  0.  1926] 


Practitioners  Act  (XVIII  of  1879),  s.  ±-~ 
"Practise"  meaning  of—  Advocate^  authority  of,  to 
act  on  behalf  of  client — Vakalatnama,  whether  neces- 
sary— Compromise  consented  to  by  Pleader,  when  can 
be  set  aside— Fraud—Collation  -Peti'im  presented  out 
of  time— Delay,  explanation  of—  Extension  of  time, 
prayer  for— Limitation  Act  (IX  of  IfJOS}>  s  .5. 

The  word  "piactise"  in  a.  4  of  the  Legal  Practitioners 
Act>  includes  the  right  to  appear,  plead  and  act.  [p.  182, 
col.  L] 

By  virtue  of  the  provisions  of  ci  (3)  of  r  4  of 
O.  Ill,  C.  P.  C.,  an  Advocate,  unlike  a  Pleader,  can  be 
verbally  appointed  to  act  on  behalf  of  his  client,  and 
when  so  appointed,  under  r.  1  of  O  III,  he  can  appear, 
plead  and  act.  There  is,  therefore,  nothing  to  prevent 
an  Advocate,  either  in  the  High  Court  or  in  the  sub- 
ordinate Courts,  from  presenting  an  application  on 
behalf  of  his  client  without  any  power  of  appoint- 
ment or  vakalatnama  given  to  him  in  writing,  [p  181, 
col.  2.] 

A  petition  filed  out  of  time  must  show  on  the  face 
of  it  the  reason  for  the  delay,  and  there  must  be  an 
express  prayer  for  condonation  of  the  delay  under  s.  5 
of  the  Limitation  Act.  [p.  182,  col.  2] 

A  com  promise  consented  to  bya  Pleader  duly  autho- 
rised in  that  behalf  will  not  be  set  aside,  unless 
fraud  or  collusion  is  imputed  to  the  Pleader,  [p  183, 
col  L] 

Revision  against  an  order  of  the  Subordi- 
nate Judge,  Ranchi,  dated  the  9th  June 
1923. 

Mr.  //.  P,  Sinha,  for  the  Petitioner. 

Mr.  S.  Saran,  for  the  Opposite  Party. 

JUDGMENT.— This  is  an  application 
against  an  order  of  the  Subordinate  Judge 
of  Ranchi,  dated  the  9th  June  1923,  reject- 
ing an  application  of  the  petitioners  pre- 
sented under  O.  XLVII.  r.  1,  of  the  C.  P.  C., 
for  review  of  a  judgment,  d?ted  the  23rd 
December  1922,  passed  b>  him. 

The  petitioners  were  plaintiffs  in  the 
case  and  sought  to  recover  possession  of  the 
disputed  land  on  a  declaration  of  their  title 
thereto  as  their  ancestral  bhuinhari  land. 
The  defendants,  on  the  other  hand,  claimed 
to  be  in  possession  of  the  property  under 
purchase  made  by  their  father  in  1873 
from  one  Sheikh  Bhukun,  an  auction-pur- 
chaser of  the  land.  The  plaintiffs'  suit  was 
dismissed  by  the  Munsif,  and  the  appeal 
filed  by  them  was  placed  in  the  file  of  the 
Subordinate  Judge  for  disposal.  The 
:•;•.:  .":  :.'ofboth  sides  concluded  on  the 
A11.".  IK  v,mber.  On  the  23rd  December  a 
compromise  petition  was  filed  before  the 
learned  Subordinate  Judge.  The  petition 
was  signed  by  the  defendants  and  their 
Plsader,  and  on  behalf  of  the  petitioners 
their  Pleader  signed  the  same.  By  the 
petition  of  compromise  the  bhuinhari  title 
of  the  petitioners  was  admitted  and  acknow- 
ledged by  the  defendants,  and  the  defend- 
ants' were  allowed  to  hold  the  disputed 


land  as  occupancy  raiyats  under  the  plaint- 
iffs on  payment  of  r^nt  at  the  rate  of  Rs.  3 
per  acre,  the  rent  being  revisable  at  the 
time  of  the  preparation  of  the  Record  of 
Rights  The  appeal  was  disposed  of  in 
terms  of  the  compromise  petition  by  judg- 
ment of  the  Court,  dated  the  23rd  December, 
1923. 

The  petition  for  review  of  the  judgment 
was  filed  on  behalf  of  the  petitioners  on 
the  5th  June.  In  it  it  was  alleged  that  after 
the  arguments  were  over,  the  petitioner 
No.  1,  who  was  in  charge  of  the  case  on 
behalf  of  the  plaintiffs,  had  left  Ranchi 
for  his  village  in  order  to  make  prepara- 
tion for  the  Christmas  festival  in  his  charge, 
and  he  came  back  to  Ranchi  in  the  first 
week  of  January  and  learnt  that  the  appeal 
was  disposed  of  in  terms  of  the  compromise 
referred  to  above.  It  was  alleged  in  the 
•  '""  *  .'  the  compromise  petition  was 
•'.-  :  ..  .  his  knowledge  and  without 
instructions  to  his  Pleader  and  that  it  was 
prejudicial  to  the  plaintiffs'  interest. 

The  compromise  petition  was  signed  by 
the  petitioners  themselves,  and  countersign- 
ed by  their  Counsel  Mr.  Roy.  On  the  9th 
June  1923,  the  Court  rejected  the  applica- 
tion for  review  holding:  (1)  that  it  was  out 
of  time,  and  (2)  that  it  was  not  in  proper 
form.  As  to  the  latter  ground  the  learned 
Subordinate  Judge  observed  that  Mr.  Roy 
being  a  Counsel  (Advocate)  could  not  move 
t  the  petition  unless  he  was  instructed  by  a 
1  Pleader  and  after  the  latter  had  signed  it, 
and  that  if  Mr.  Roy  wanted  to  present  the 
petition  and  thereby  act  as  a  Pleader,  he 
would  have  filed  a  vakalatnama.  In  support 
of  this  view  the  learned  Subordinate  Judge 
has  cited  the  case  of  Mr.  B.  N.  Misra,  an 
Advocate  of  the  Court,  who  practises  in 
Cuttack.  I  have  looked  into  the  file  of  the 
case.  Mr.  Misra  applied  for  refund  of  some 
money  on  behalf  of  his  client  and  filed  a 
petition  for  that  purpose  under  his  own 
signature,  without  filing  a  vakalatnama. 
The  learned  Chief  Justice  (Sir  Edward 
Chamier)  observed  that  if  Mr.  Misra  want- 
ed to  perform  the  functions  of  a  Pleader  he 
must  file  a  vakalatnama.  This  view  has 
been  maintained  in  this  Court  in  several 
cases,  and  thus  a  practice  has  been  es- 
tablished of  not  allowing  refund  of  money 
to  an  Advocate  unless  he  is  especially  autho- 
rized and  files  a  vakalatnama.  This  would 
be  so  under  the  provisions  of  the  stamp 
law  which  especially  require  that  a  refund 
of  money  can  only  be  made  to  a 


I.  0.  1926] 

holding  a  power-of-attorney,  duly  stamped, 
from  the  person  on  whose  behalf  the  with- 
drawal is  sought  [Art.  48  (0),  Sch.  I  of 
the  Stamp  Act],  But  the  Counsel  in  the 
present  case  did  not  want  any  refund  of 
money  on  behalf  of  his  client;  he  only  ap- 
plied for  review  of  judgment.  The  petition 
for  review  in  the  present  case  was  duly 
signed  by  all  the  petitioners,  and  it  was 
moved  by  Counsel,  Mr.  Roy,  who  appeared 
for  the  petitioners  who  were  also  present  in 
Court  at  the  time.  The  rules  as  to  the 
presentation  of  an  application  are  to  be 
found*  in  Ch.  Ill,  page  13,  of  the  High 
Court  Rules,  and  in  Ch.  I,  Part  I,  page 
5,  of  the  General  Rules  and  Circular  Orders 
for  the  subordinate  Courts.  Rule  4,  els. 
(Hi)  and  (iv),  of  Ch,  III  of  the  High 
Court  Rules  say  that  a  petition  shall  be 
signed  and  dated  either  by  the  petitioner 
or  declarant  or  his  Pleader  and  presented 
either  by  the  petitioner  or  declarant  or  his 
recognized  agent  or  his  Pleader  or  some 
person  appointed  in  writing  in  each  case  by 
such  Pleader  to  present  the  same.  The 
note  to  that  rule  says: 

*  Here  and  throughout  these  rules  unless 
there  is  anything  repugnant  in  the  subject 
or  context  'Pleader1  means  Advocate,  Vakil 
or  Attorney/' 

Therefore,  a  petition  must  be  signed  and 
presented  either  by  the  petitioner  himself 
or  an  Advocate,  Vakil  or  Attorney  of  this 
Court,  In  the  present  case  the  petition  was 
signed  by  the  petitioners  themselves.  They 
Were  present  in  Court,  and  it  was  signed 
and  presented  by  Mr,  Roy,  Advocate,  on 
their  behalf.  Therefore,  if  the  petition  were 
filed  in  this  Court  it  would  have  been  in 
order.  It  is,  however,  contended  by  Mr. 
Sambhu  Saran  that,  as  it  was  presented 
before  the  learned  Subordinate  Judge,  the 
Advocate  in  question  could  not  present  it. 
Rule  2,  cl.  (3),  Ch.  I,  of  the  General  Rules 
and  Circular  Orders,  however,  states  that  a 
petition  to  be  presented  in  the  lower  Courts 
may  be  signed  by  the  person  presenting  it, 
and  r.  3  says  that  if  the  person  presenting 
it  is  not  a  Pleader  or  a  mukhtiar,  he  shall, 
if  so  required  by  the  Court,  be  identified, 
Therefore,  a  petition  in  the  subordinate 
Courts  may  be  signed  and  presented  by  a 
party  or  by  his  Pleader.  "Pleader"  has  been 
defined  in  the  0,  P.  C.,  s.  2,  cl.  (15),  to  mean 
any  person  entitled  to  appear  and  plead  for 
another  in  Court  and  to  include  an  Ad- 
vocate, Vakil  and  Attorney  of  a  High  Court. 
This  rule  refers  only  to  the  functions  of 


HURENTIOS  BKKA  V.  DHUiCt  KOERL 


181 


appearing  and  pleading,  and  it  is    said  that 
it  does  not  include  acting. 

Rule  1  of  0.  Ill  of  the  C.  P.  C  ,  says: 

"Any  appearance,  application  or  act  in  or 
to  any  Court,  required  or  authorized  by 
law  to  be  made  or  done  by  a  party  in  such 
Court,  may,  except,  where  otherwise  express- 
ly provided  by  any  law  for  the  time  being 
in  force,  be  made  or  done  by  the  party  in 
person,  or  by  his  recognized  agent  or  by  a 
Pleader  duly  appointed  to  act  in  his  behalf.1' 

Rule  4  (1)  of  the  order  says: 

'The  appointment  of  a  Pleader  to  make 
or  do  any  appearance,  application  or  act  for 
any  person  shall  be  in  writing,  and  shall 
be  signed  by  such  person  or  by  his  re- 
cognized agent  or  by  some  other  person 
duly  authorized  by  power-of-attorney  to  act 
in  this  behalf.'* 

Clause  (3)  of  r.  4  dispenses  with  the  ap- 
pointment in  writing  in  the  case  of  an 
Advocate  of  any  High  Court,  and  an  Advocate 
is  not  required  to  present  any  document 
empowering  him  to  act. 

Therefore,  an  Advocate,  unlike  a  Pleader, 
can  be  verbally  appointed  to  act  on  behalf 
of  his  client,  and  when  so  appointed  under 
r.  1  of  O.  Ill  he  can  appear,  plead  and  act. 
Hence  Mr.  Roy  need  not  have  filed  any 
vakalatnama  as  his  authority  to  present 
the  petition  of  revision  on  behalf  of  the 
petitioners.  So  far  as  the  law  and  the  rules 
are  concerned,  there  is  nothing  to  prevent 
an  Advocate,  either  in  the  High  Court  or 
in  the  subordinate  Courts,  from  |,ivs-ntiiitf 
an  application  on  behalf  of  his  rhent  with- 
out any  power  of  appointment  or  vakalat- 
nama given  to  him  in  writing.  There  is 
nothing  in  the  Legal  Practitioners  Act 
also  against  this  view. 

Section  7  of  the  Letters  Patent  of  this 
Court  confers  upon  the  Court  power 

"to  approve,  admit  and  enrol  such  and  so 
many  Advocates,  Vakils  and  attorneys  as 
to  the  said  High  Court  may  seem  meet; 
and  such  Advocates,  Vakils  and  Attorneys 
shall  bfc  and  are  hereby  authorized  to  ap- 
pear for  the  suitors  of  the  said  High  Court, 
and  to  plead  or  to  act,  or  to  plead  and  act, 
for  the  said  suitors,  according  as  the  said 
High  Court  may  by  its  rules  and  directions 
determine,  and  subject  to  such  rules  and 
directions." 

In  s.  ft  of  the  Letters  Patent  it  is  further 
declared  that  this  Court 

ushall  have  power  to  make  rules    from 
time  to  time  for  the  qualification  and  ad- 
of  proper  persona  to  be  Advocates, 


182 


UTJRENTIU8  EKICA  t>,  6HUKI  KOBRt 


Vakils  or  attorneys-at-law  of  the  said  High 
Court,  and  shall  be  empowered  to  remove 
or  to  suspend  from  practice,  on  reasonable 
cause,  the  said  Advocates,  Vakils  or  attorney  s- 
at  law;  and  no  person  whatsoever  but  such 
Advocates,  Vakils,  or  attorneys  shall  be 
allowed  to.. .appear,  plead  or  act  on  his  own 
behalf  or  on  behalf  of  a  co-suitor." 

Section  119  of  the  0.  P.  0 ,  enacts  that 

"Nothing  in  this  Code  shall  be  deemed 
to  authorize  any  person  on  behalf  of  an- 
other to  address  the  Court  in  the  exercise 
of  its  original  civil  jurisdiction,  or  to  exa- 
mine witnesses,  except  where  the  Court 
shall  have  in  the  exercise  of  the  power  con- 
ferred by  its  Charter  authorized  him  so  to 
do  or  to  interfere  with  the  power  of  the 
High  Court  to  make  rules  concerning  Ad- 
vocates, Vakils  and  Attorneys." 

No  rule  has  been  framed  in  this  Court 
prohibiting  an  Advocate  from  presenting  an 
application  or  acting  on  behalf  of  his  client. 

Under  s.  4  of  the  Legal  Practitioners  Act 
(XVIII  of  1879), 

''Every  person  now  or  hereafter  entered 
as  an  Advocate  or  Vakil  on  the  roll  of  any 
High  Court  under  the  Letters  Patent  con- 
stituting such  Court,  shall  be  entitled  to 
practise  in  all  Courts  subordinate  to  the 
Court  on  the  roll  of  which  he  is  entered," 
etc. 

Thus,  if  an  Advocate  on  the  roll  of  this 
High  Court  is  entitled  to  sign  and  present 
an  application  and  to  act  on  behalf  of  his 
client  in  the  High  Court  itself,  by  s.  4  of  the 
Legal  Practitioners  Act  referred  to  above  he 
will  be  entitled  to  practise  in  all  the  Courts 
subordinate  to  this  Court.  The  word  "prac- 
tise" in  the  section  has  been  advisedly  used 
and  unless  prohibited  by  any  special  rule 
will  include  the  right  to  appear,  plead  and 
act. 

Mr.  Sambhu  Saran  has  referred  us  to  the 
case  of  Ram  Tamck  Barrik  v.  Sidhessuree 
Dossee  (1).  That  case,  no  doubt,  supports 
his  contention,  but  that  case  relates  to  the 
practice  in  the  Calcutta  High  Court  under 
the  rules  framed  by  that  Court  prohibiting 
Advocates  of  the 'Court  from  acting  on  be- 
half of  their  clients  either  on  the  original 
or  on  the  appellate  side;  and  all  the  argu- 
ments advanced  by  Mr.  Sambhu  Saran  were 
considered  and  fully  met  by  a  Full  Bench 
of  the  Allahabad  High  Couit  in  the  case  of 
Bakhtawar  Singh  v.  Sant  Lai  (2).  Their 

(1)  13  W.  R.  60. 

(2)  9  A.  617;  A,  W,  N,  (1887)  153;  5  Jnd,  Dec,  (N.  e,) 
848  (F.B,). 


[92 1*.  0. 1926] 

Lordships  in  that  case  observed:  "It  does 
not  appear  to  us  necessary  to  enter  upon  a 
discussion  of  the  practice  that  prevails  and 
regulates  the  professional  status  and  pro- 
ceedings of  Counsel  in  England,  as  it  seems 
to  us  to  be  altogether  beside  the  question  we 
have  to  determine,  namely,  whether  en- 
rolled Advocates  of  this  Court  are,  as  such, 
prohibited  from  doing  all  such  acts  as  ad- 
mittedly may  be  done  by  the  Vakils/1 

Accordingly  their  Lordships  held  that 
under  the  Letters  Patent  of  the  Allahabad 
High  Court  and  its  rules  an  Advocate  can 
appear,  plead  and  act. 

Now,  the  Letters  Patent  of  this  Court 
and  the  rules  framed  by  us  are  on  similar 
lines  to  those  of  the  Allahabad  High  Court. 
1  am,  therefore,  inclined  to  adopt  the  view 
taken  by  the  Full  Bench  of  that  Court  and 
to  hold  that  the  learned  Subordinate  Judge 
was  wrong  in  his  view  that  the  petition  of 
review  presented  to  him  by  Mr.  Roy,  Ad- 
vocate, on  behalf  of  the  petitioners  was  not 
properly  presented. 

The  first  ground  upon  which  the  learned 
Subordinate  Judge  rejected  the  application 
of  the  petitioners,  however,  seems  to  be 
substantial.  The  petition  was  filed  much 
out  of  time.  The  appeal  was  disposed  of 
on  the  23rd  December  1922,  and  the  peti- 
tioner No.  1  came  to  know  of  it  in  the  first 
week  of  January  1923,  when  he  came  to 
Ranchi  1o  inquire  about  the  case.  The 
review  petition  should  have  been  filed 
about  the  23rd  of  March,  1923.  It  was,  how- 
ever, filed  on  the  5th  June  1920.  This  en- 
ormous delay  has  not  been  explained  in  the 
petition  for  review  presented  to  the  Sub- 
ordinate Judge. 

It  is  a  well- recognized  principle  that  a 
petition  filed  out  of  time  must  show  on  the 
face  of  it  the  reason  for  delay  and  there 
must  further  be  an  express  piayer  for  con- 
donation of  the  delay  under  s.  5  of  the 
Limitation  Act.  On  the  face  of  it  the 
petition  was  time- barred  and  the  Court 
below  was  right  in  holding  that  it  was  not 
entertainable. 

Again,  the  petition  docs  not  impute  im- 
proper conduct  on  the  part  of  the  Pleader 
who  filed  the  compromise  petition,  and 
unless  that  was  done  the  action  taken  by 
the  Pleader  on  behalf  of  the  petitioners 
could  not  be  cl'nlldipc  df  for  under  the 
rakalatnaira  1he  Pleader  had  full  pove j  tc 
compromise  the  case  (vide  Sadho  Sen  an 


[M  I.  0. 1926] 


PRAG  DEVI  t>«  NATHU  MAI* 


v.  AnantEai  (3).]  The  recent  decision  of 
their  Lordships  of  the  Judicial  Committee 
in  the  case  of  Sourindra  Nath  Mittra  v. 
Heramba  Nath  Bandopadhaya  (4")  may  be 
usefully  cited,  though  the  facts  of  the  case 
are  not  very  similar  to  those  of  the  present 
one.  On  principle  there  does  not  seem  to 
be  any  reason  for  interfering  with  a  com- 
promise consented  to  by  the  Pleader  duly 
authorized  in  this  behalf,  unless  fraud  or 
collusion  is  imputed  to  the  Pleader.  No 
such  collusion  or  fraud  has  been  pleaded  in 
the  petition.  No  doubt,  ignorance  of  the 
compromise,  want  of  instructions  to  the 
Pleader  and  possibly  fraud  practised  by  the 
opposite  party  have  been  vaguely  stated  in 
the  petition.  These  are,  however,  not 
sufficient  to  affect  the  compromise  filed  in 
the  present  case.  Again,  the  petitioner 
No.  1  says  that  he  was  looking  after  the 
case  and  went  away  on  the  2?3rd  December 
1922,  to  make  arrangements  for  Christmas 
festivities,  but  there  were  about  ten  other 
petitioners  and  there  is  no  reason  why  the 
petitioners  other  than  petitioner  No.  1  could 
not  remain  in  Ranchi  to  look  after  the 
case. 

Por  all  these  reasons  I  dismiss  the  ap- 
plications. 

z.  K,  Applications  dismissed. 

(3)  77  Ind.  CAS  14,  2  Pat  731,  (1923)  Pat.  197;  (1923) 
AIR   (Pat)  483 

(4)  84  hid  Oas  721;    (1923)  A  I.  R  (P.  0  )  98;  45  M 
L   J     453;  (1923)    M.    W.    N.  734,    33  M.  L.    T,  294 
(P.  0) 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  2603 

*  OF  1924. 
April  22,  1925. 

Present;— Mr.  Justice  Harrison. 

Musammat  PRAG  DEVI  AND  ANOTHER— 

OBJECTORS— APPELLANTS 

versus 
NATHUMAL  AND  OTHERS— PETITIONERS 

RESPONDENTS. 

Will— Undue  influence— Disposing  mind— Inference 
from  surrounding  circumstances. 

In  the  absence  of  direct  evidence  as  to  the  posses- 
sion of  a  (liitpobir.K  mi iid  by  a  testator  at  the  time  of 
making  a  Will,  il  ia  open  to  the  Court  to  infer  from 
the  surrounding  circumstances  of  the  case  the  exercise 
of  undue  influence  over  the  testator,  fp  183,  col.  2.] 

Where  the  Court  is  able  to  find  that  a  testator  at 
the  time  of  making  a  Will  was  in  a  very  weak  state 
of  health  and  was  under  the  influence  of  persons  who 
Were  benefited  by  the  Will,  the  Will  must  be  rejected 


183 

as  having  been  executed  by  the  testator  without  4 
disposing  mind.  [p.  184,  col  L] 

Miscellaneous  civil  appeal  from  an  order 
of  the  District  Judge,  Jullundur,  dated  the 
25th  June  1^24. 

Lala  Jagan  Nath  Agarwal  and  Mr.  Anant 
Ram,  for  the  Appellants. 

Messrs.  Faqir  Chand  and  Madan  Gopal, 
for  the  Respondents. 

JUDGMENT.— The  Probate  of  a  Will 
of  Bhan  Mai  has  been  granted  to  three  of 
his  nephews  Nathu  Mai,  Girdhari  Lai  and 
Gurdas  Mai  by  the  District  Judge  of  Jul- 
lundur. The  application  for  Probate  was 
contested  by  the  daughter  of  the  deceased, 
Musammat  Prag  Devi,  and  she  presented 
this  appeal. 

The  contention  in  the  Trial  Court,  as  here, 
has  been  that  the  document  was  undoubted- 
ly executed  by  the  late  Bhan  Mai  a  few  days 
before  his  death  but  that  he  was  in  such  a 
bad  state  of  health  that  he  did  not  know 
what  he  was  doing,  that  the  Will  after 
registration  was  taken  over  by  Girdhari 
Lai  and  is  still  in  his  possession  unless 
he  has  destroyed  it,  that  he  refused  to 
produce  it  because  he  does  not  wish  it  to 
be  shown  that  the  Will  bears  the  thumb- 
mark,  and  not  signature,  of  the  late  Bhan 
Mai,  and  that  there  are  various  indications 
to  prove  that  the  mind  of  Bhan  Mai  was  do- 
minated by  his  nephews  and  that  he  had  not 
a  disposing  mind  at  the  time  when  the  Will 
was  executed  four  days  before  bis  death. 
The  learned  District  Judge  has  held  that 
there  could  be  no  reason  for  Girdhari  Lai 
to  lose  or  suppress  the  Will,  that  the 
daughter  has  been  very  well  treated,  and 
that  there  is  no  evidence  that  Bhan  Mai  was 
under  the  influence  of  his  nephews.  It  is 
true  that  there  is  no  direct  evidence  and 
it  is  only  a  question  of  whether  such  influ- 
ence can  be  inferred.  The  reason  put  forward 
for  the  possible  suppression  of  the  Will  is 
perfectlv  comprehensible  and  if  the  recital 
in  the  \Vrill  be  ignored,  it  appears  that  the 
daughter  would  have  succeeded  to  the  whole 
of  her  father's  property,  while  according 
to  the  Will  she  receives  only  a  portion  and 
the  nephews  take  the  remainder. 

This  point  of  the  disappearance  of  the 
Will  is  I  think  of  great  importance.  The 
Sub- Registrar  himself  came  to  the  house  of 
Bhan  Mai,  and  tells  us  thai,  he  was  weak 
and  comatose  and  that  he  had  to  wait  till 
he  woke  up.  He  states  that  Bhau  Mai 
assented  to  the  contents  and  put  his  thumb 
mark  upon  it,  i.  e,,  on  the  endorsement,  Tli 


184 


TARKB81WAR  PRAftAD  TBWARI  V,  DRVENPRA  PRASAD  TEWART. 


0. 


Bub-Registrar  then  took  the  deed  away  to 
his  office  for  necessary  formalities  to  be  ob- 
served, and  made  it  over  to  Girdhari  Lai, 
one  of  the  nephews,  when  he  came  to  fetch 
it.  This  man  Girdhari  Lai  brought  with  him 
a  receipt  purporting  to  bear  the  thumb  im- 
pression of  Musammat  Prag  Devi  the 
daughter  a  curious  proceeding.  This  thumb 
impression  has  not  been  proved.  Counsel, 
ho \vev.er,  contends  that  this  is  sufficient  to 
establish  that  the  Will  was  njade  over 
by  Girdhari  Lai  to  Musammat  Prag  Devi, 
and  he  further  contends  that  the  Sub-Regis- 
trar's statement  that  he  was  told  that  the 
tjiumb  impression  was  that  of  Musammat 
Prag  Devi,  but  that  he  had  not  seen  it  put  on 
is"  good  evidence.  This  incident  of  handing 
in  the  previously  prepared  receipt  is  I 
think  very  highly  suspicious.  The  reason 
for  suppressing  the  Will  is  said  to  be  that 
it  bore  the  thumb-mark  of  Bhan  Mai  and 
that  he  would  not  have  executed  a  solemn 
document  in  this  way  had  he  not  been  too 
weak  to  write.  The  witnesses  as  to  the 
actual  signature  are  two,  Tulsi  Ram  the 
scribe  and  Mela  Ram  one  of  the  witnesses. 
Tulsi  Ram  says  that  Bhan  Mai  put  his 
thumb-mark,  while  Mela  Ram  is  very  posi- 
tive that  he  signed  in  Urdu.  The  document 
itself  shows  baqalam  khud  Bhan  Mai  angulha 
which  I  take  to  mean  his  thumb-mark  and 
riot  bis  signature,  and  there  is  the  further 
fact  that  he  affixed  his  thumb-mark  to  the 
endorsement  before  the  Sub-Registrar,  I 
find  that  Tulsi  Ram  is  right  in  saying  that 
Bhan  Mai  put  his  thumb-mark  and  did 
not  sign,  and  I  think  that  he  is  also  right 
in  saying  that  his  reason  for  doiug  so  was 
that  he  was  very  weak.  The  Will  recites 
that  Bhan  ivlal  wishes  to  ensure  the  inherit- 
ance of  hie  daughter  and  leaves  to  her 
what  is  called  his  self-acquired  property 
and  states  that  his  reversioners  will  take 
the  ancestral  property.  There  is  no  pre- 
sumption regarding  the  ancestral  nature  of 
any  property,  nor  has  it  ever  been  pleaded 
in  this  case  that  any  of  the  property  was 
ancestral.  The  natural  heir  to  receive  the 
estate  was  the  daughter  and  taking  every 
thing  into  account,  in  spite  of  the  evidence 
of  the  Sub-Registrar  that  Bhan  Mai  appear- 
ed to  him  to  understand  what  he  was  doing, 
I  fii)d  that  he  was  in  a  very  weak  state  of 
health,  and  that  every  thing  points  to  the 
conclusion  to  Mhidi  I  come,  that  he  was 
under  the  influence  of  his  nephews  and  had 
not  a  disposing  mind  at  the  time  he  execut- 
ed this  document. 


I,  therefore,  accept  the  appeal  ^4  <U§mi8£ 
the  application  for^robate*: 
2  K.  Appeal 


No.  285 


HIGH 

OKIGINAL 
OF  1921. 
June  20,  1924. 
Present  :  —  Mi*.  Justice  Dias 

Mr.  'Justice  Ro$g. 

TARKESHWAR  PRASAD  TEWARI 
—  APPELLANT 

versus 
DEVENDRA  PRASAD  TEWARt— 

RESPONDENT. 

Evidence  Act  (I  of  1872),  s.  74  -Plaint,  whether 
public  document-  -Certified  copy,  whether  admissible— 
Patna  High  Court  Rules,  Ch  IX,  rr.  I,  4,  30—  Paper- 
book,  printing  of  —  Regi$frar,  whether  can  grant  ex- 
emption 

Neither  a  plaint  nor  a  written  statement  is  a  public 
docunienfr,  and  a  certified  copy  of  either  is  not  ad- 
missible in  evidence,  [p,  188,  col.  2.1 

Rule  30  of  Ch.  IX  of  the  Patna  High  Court  Rules 
must  be  construed  as  subject  to  rr  1  and  4  of  the 
Chapter,  and  the  Registrar  has  no  authority  to  exempt 
a  party  from  having  a  printed  paper-book  prepared  in 
a  case,  [p  191,  col.  2.] 

Appeal  from  a  decision  of  the  Additional 
Subordinate  Judge,  Patna,  dated  the  14th 
September  1921. 

Messrs.  C.  C.  Das,  S.  M.  Gupta,  Ram 
Prasad  and  Janak  Kishore,  for  the  Appel- 
lant. 

Messrs.  S.  P.  Sen  and  A.  T.  Sen,  for  the 
Respondent. 

JUDGMENT. 

Ross,  J,  —  The  question  in  this  appeal 
is  a  pure  question  of  fact  and  relates  to 
the  origin  of  TarkeshWar,  defendant  No.  1. 

Sheo  Prasad  TiwaH  had  two  sons,  Ram 
Partap  alias  Halkhori  and  Maheshwai*  Dutt 
alias  Duttan.  Ram  Pratep  held  two  sone, 
Ramrup  £nd  Ramsuj'dj,  by  his  wife  Parbath 
The  plaintiff  ttebendra  Prasad  Tiwari  is 
the  son  of  Ramrup  and  his  wife  Bartajika. 
The  question  for  decision  in  the  suit  is 
wjhether  Tarkeshwar  is  the  posthumous  son 
of  JRamsuraj  and  his  wife  Harnantjan 
Kuer.  Ram  Pratap  died  in  1899.  The 
plaintiff  alleges  that  both  his  eons  were 
then  minbfs  arid  the  management  of  th$ 
property  was  assumed  by  Maheshwar  Dutt, 
Kven  after  he  attained  majority  llamrup 
was  incapable  of  managing  his  estate  being 
of  weak  intellect  aud  duaolute  habits, 


[92  1  0.  1926]          TABKB^IWAR  PRA34P  TEWARI  V,  DEVENDRA  FRASAD  TBWARI. 


185 


moib^r.  than  formed  the  idea  of  marrying 
one  of  her  sons  in  the  family  of  a  man  of 
affairs  and  accordingly  Ramsuraj  was  mar- 
ried to  Harnandan  Kuer,ltl*e  grand-daughter 
of  one  Nanku  Pande,  who  is  described 
in  the  plaint  as  "a  successful  tout  practis- 
ing in  the  district  of  Patna  possessed  of 
great  tact  aud  fully  capable  of  understand- 
ing business  and  managing  zemindari 
affairs"  Nauku  Pande  then  took  up  the 
management  of  the  estate  acting  in  consulta- 
tion with  Maheshwar  Dutt, 

The  plaintiff  alleges  that  Ramsuraj  died 
on  the  23rd  of  Bhado  1313  two  years  after 
hia  marriage.  On  the  death  of  Ramsuraj 
Nanku  Pande  took  Harnandan  Kuer  to  his 
house  at  Machuatoli  in  Patna  and  set  up 
Tarkeshwar  who  was  the  son  of  one  Banke 
Singh,  a  constable  by  hie  mistress  as  the 
son  of  Ramsuraj  and  Harnandan  Kuer. 
Maheshwar  Dutt  is  also  alleged  to  have 
had  illicit  connection  with  the  mistress  of 
Banke  Singh  and  to  have  acted  in  collusion 
with  Nanku  Pande  in  this  matter.  In  1317 
Ramrup  also  died.  The  main  case  is  stated 
in  paras.  17  and  18  of  the  plaint  in  these 
words.  "To  the  best  of  the  plaintiff's  knowl- 
edge on  enquiry  no  son  or  daughter  was 
born  to  Ramsuraj  Tiwari  of  the  womb  of 
Musammat  Harnandan  Kuer.  When  Ram- 
suraj Tewari  died  he  was  only  13  years  old 
and  could  not  possibly  beget  a  child  at 
that  age,  and  it  was  not  at  all  a  fact  that 
Musammat  Harnandan  Kuer  was  pregnant 
at  the  time  of  his  death.  Defendant-  No.  1 
is  not  at  all  the  son  of  Ramsuraj  Tiwari 
nor  did  the  latter  beget  him  nor  was  he  born 
of  the  womb  of  Harnandan  Kuer.  On  the 
other  hand  he  was  born  of  the  womb  of 
Banke  Singh's  mistress  and  his  father  is 
Banke  Singh  resident  of  Mouza  Bairia." 
The  plaintiff  claims  a  declaration  that  the 
defendant  No.  1  is  not  the  son  of  Ramsuraj 
Tiwari  and  has  no  title  to  the  property  of 
the  family  and  a  decree  for  confirmation 
of  his  possession  or  recovery  of  possession. 
In  the  written  statement  various  dates 
of  the  birth,  marriage  and  death  of  the 
members  of  the  family  alleged  in  the  plaint 
are  stated  differently.  Ramrup'a  incapa- 
city |or  affairs  and  dissolute  character  are 
denied  and  it  is  alleged  that  Tarkeshwar  is 
the  son  of  Ramsuraj  and  Harnandan  Kuer 
born  on  the  8fch  of  Kartick  1314  about  a 
month  arid  a  half  after  the  death  of  Ram- 
suraj. He  was  married  in  I324to  the  daughter 
of  one  Rambhawan  Missir  a  respectable 
t  high  family.  The  suit  is  said 


to  have  been  instituted  fraudulently  owing 
to  a  dispute  about  the  title  to  certain  monies 
owing  to  the  family. 

The  main  issue  in  the  case  is  Issue  No.  4 
"Is.  pot  defendant  No.  1  the  son  of  Ram- 
suraj Tiwari?  Is  he  the  son  of  Banke  Singh 
3,6  alleged  by  the  plaintiff  ?  The  learned 
Subordinate  Judge  has  found,  that  if 
Banke  Singh  had  any  son  by  any  mistress 
Tarkeshwar  was  not  that  son,  secondly,  that 
Harnandan  Kuer  was  really  pregnant  when 
her  husband  died,  and  it  was  in  that  con- 
dition that  she  was  removed  to  Machuatoli, 
and  thirdly,  that  considering  all  the  circum- 
stances he  was  not  prepared  to  hold  that 
Tarkeshwar  is  the  son  of  Ramsuraj  Tiwari, 
He,  therefore,  passed  a  decree  in  favour  of 
the  plaintiff. 

On  these  findings  the  learned  Counsel  for 
the  appellant  contended  that  he  was  entitled 
to  a  judgment.  Both  the  main  allegations 
in  the  plaint  had  been  negatived  by  the 
first  two  findings  and  the  Subordinate 
Judge  was  bound  on  these  findings  to  come 
to  the  conclusion  that  Tarkeshwar  was  the 
son  of  Ramsuraj  Tewari.  He  further  relied 
on  the  documentary  evidence  in  the  case 
as  showing  that  the  existence  of  Tarkeshwar 
and  his  relationship  to  the  family  had  been 
admitted  in  a  long  series  of  transactions  by 
members  of  the  family  itself  In  my 
opinion  it  is  impossible  to  dispose  of  this 
appeal  on  the  findings  of  the  learned  Sub- 
ordinate Judge.  It  is  true  that  the  first 
two  findings  are  in  terms  inconsistent  with 
the  conclusion  but  apparently,  all  that  the 
second  finding  was  intended  to  amount  to 
was  that  Musammat  Harnandan  Kuer  might 
have  been  pregnant  when  her  husband 
died.  The  finding  is  based  on  a  consider- 
ation of  the  evidence  relating  to  the  age  of 
Ramsuraj  and  the  learned  Subordinate 
Judge  has  not  discussed  at  all  the  direct 
evidence  for  and  against  the  pregnancy  of 
Harnandan  Kuer.  The  only  conclusion  to 
whicb  the  evidence  which  he  has  discassed 
could  lead  was  a  finding  that  pregnancy 
was  possible.  On  the  other  hand  the  learned 
Counsel  for  the  respondent  contests  both 
the  first  and  the  second  finding.  It  is  neces- 
sary, therefore,  to  discuss  the  evidence  in 
the  case. 

I  shall  deal  first  with  the  allegation  that 
Tarkeshwar  is  the  son  of  the  constable 
Banke  Biughand  his  mistress.  The  evidence 
on  this  point  is  oral  evidence  only  and  con- 
sists of  the  depositions  of  Banke  Singh  P. 
W.  No,  24,  Biru  Gope  P.  W.  No.  19,  Ram 


183 


Khelawan  P.  W.  No.  21,  Ohhedi  Ram  P. 
W.  No.  17,  Sanichar  Koeri  P.  W.  No.  20  and 
Jawahir  Lai  P.  W.  No.  18.  The  first  com- 
ment that  falls  to  be  made  on  this  evidence 
is  that  none  of  these  witnesses  is  a  person 
of  any  consideration.  Banke  Singh  is  a 
retired  Police  constable  and  Biru  Gope  is  a 
milk-seller.  The  mistress  of  Banke  Singh 
rented  a  room  in  his  house  for  one  rupee  a 
month  and  here  she  bore  twins  one  of  whom 
is  set  up  as  the  defendant  Tarkeshwar  Ram 
Khelawan  who  says  that  he  used  to  supply 
drinking  water  to  the  College  students, 
aho  lodged  in  that  house.  Chhedi  Ram  is 
a  neighbouring  tobacconist;  Sanichar 
Koeri  is  a  labourer,  and  Jawahir  Lai  seems 
to  be  a  contractor  whose  father  was  a 
physician  and  supplied  medicine  to  Banke 
Singh's  family,  secondly  the  story  they 
tell  is  improbable  in  itself.  The  evidence 
is  that  Tarkeshwar  was  three  or  four  months 
old  when  the  negotiations  for  obtaining 
him  began,  but,  owing  to  the  opposition  of 
his  mother,  it  was  not  until  three  or  four 
months  after  this  that  the  child  was  made 
over  to  Nanku  Pande.  It,  is  difficult  to 
believe  that  a  child  of  six  or  eight  months 
old  could  be  introduced  into  a  house  as  a 
son  of  the  house.  Presumably  negotiations 
were  not  entered  into  until  Ramsuraj  had 
died  Consequently  a  considerable  period 
must  have  elapsed  when  there  was  child  in 
the  R  mse  before  this  child  of  six  or  eight 
months  appeared  upon  the  scene.  Thirdly 
it  seems  unlikely  that  a  child  would  have 
been  procured  for  this  fraudulent  purpose 
from  a  :.  i/  *  ;:::.j  tola  arid  that  too,  ap- 
parently, without  any  attempt  at  secrecy,  if 
these  witnesses  are  to  be  believed.  The 
evidence  has  been  placed  before  us  and  I 
am  unable  to  believe  it.  The  evidence  of 
Banke  Singh  does  not  appear  to  me  to  be 
true.  It  is  difficult  to  believe  that  if 
Tarkeshwar  was  his  son  he  would  have  come 
to  Court  to  ruin  his  prospects  in  life;  and 
his  evidence  is  open  to  the  initial  criticism 
that  having  entered  into  this  transaction 
with  Nanku  Pande  he  now  for  no  apparent 
reason  has  turned  against  him  and  exposed 
the  whole  plot.  The  allegation  in  the  plaint 
that  this  mistress  of  Banke  Singh  was  also 
mistress  of  Miheahwar  Dutt  appears  to  be 
merely  scandalous  no  evidence  whatsoever 
being  given  in  support  of  it.  It  seems  to 
me  impossible  to  decide!  a  question  of 
descent  affiimatively  on  evidence  of  this 
kind,  I  agree  with  the  learned  Subordinate 
Judge  in  holding  that  the  plaintiff  has  failed 


PftASAD  1WARI  fl.  DE7BNDRA  PBA8AD  TdwARl,  [92  I.  0.  1928] 

to  prove  that  the  defendant  Tarkeshwar  il 
the  son  of  Banke  Singh. 

The  next  question  is  whether  Tarkeshwar 
is  the  son  of  Ramsuraj.  The  real  question 
involved  here  is  whether  Harnandan  Kuer 
was  pregnant  at  the  time  of  her  husband's 
death.  As  a  preliminary  to  that  enquiry 
there  was  a  good  deal  oif  discussion  of  the 
age  of  Ramsuraj.  The  oral  evidence  is  con- 
flicting and  considering  that  most  of  that 
evidence  was  interested  and  that  the  wit- 
nesses were  deposing  15  years  after  the 
death  of  Ramsuraj,  it  is,  in  my  opinion, 
dffficult  to  arrive  at  any  certain  conclusion 
on  the  oral  evidence.  Each  side  has  been 
able  to  elicit  statements  from  the  witnesses 
of  the  other  side  supporting  his  conten- 
tion. Thus  the  defendant  contends  that 
Ramsuraj  was  only  four  or  five  years 
younger  than  Ramrup  while  the  plaintiff 
contends  that  he  was  about  11  years  younger. 
Parbati,  the  grand  mother,  says  in  one 
place  that  the  difference  \\as  four  or  five 
years  though  her  evidence  was  not  con- 
sistent on  the  point  Hartalika,  the  widow 
of  Ramrup,  makes  the  difference  six'or  seven 
years.  Tapeswar  Kuer,  a  relation,  makes  it 
four  or  five  years  as  does  Deepnarain  Tivvari 
a  gotia.  On  the  other  hand  Nanku  Pande 
the  principal  defence  witness  makes  the 
difference  eight  or  nine  years,  while  the 
mother  of  Harnandan  Kuer  said  that  Ram- 
rup was  18  when  Ramsuraj  died.  It  is 
possible  by  combining  certain  of  the  state- 
ments to  arrive  at  the  conclusion  that  Ram- 
suraj died  at  the  age  of  13  or  14.  It  seems 
to  me  that  evidence  of  this  kind  is  most 
uncertain  and  that  even  statements  made  in 
cross-examination  unfavourable  to  the  wit- 
ness's side  are  not  necessarily  to  be  relied 
upon.  Exhibit  R  is  a  petition  for  registra- 
tion of  his  name  made  by  Ramrup  Tivvari, 
as  major  for  himself  and  his  minor  brother 
Ramsuraj  on  the  14th  of  December  li9iJ 
after  the  death  of  Rampartap.  It  has  not 
been  shown  that  Ramrup  himself  filed  this 
petition.  It  was  not  shown  to  any  of  the 
plaintiff's  witnesses  and  the  mukhtarnama 
Ex.  R  (1)  shows  that  it  was  received 
through  Maheshwar  Dutt.  It  is  contended 
that  if  Ramrup  himself  signed  the  petition 
there  is  no  reason  why  the  mukhtarnama 
should  have  been  presented  to  the  mukhtar 
by  his  uncle.  This  rmiy  be  explained  by 
the  consideration  of  the  youth  of  Rimrup, 
but  it  looks  as  if  Mdheshwar  Dutt  had 
managed  the  whole  of  this  business.  Still 
there  is  no  strong  reason  for  disbelieving 


[92  I.   0,  1926)         TARKBSflWAR  P1USAD  TflWAfct  t>,  DEVE\'D2A  PiUflAD 


the  statement  of  Ramrup's  majority.  It 
was  suggested  by  the  learned  Counsel  for 
the  respoadent  that  MaheshwarDuttby  this 
me$ns  would  get  rid  of  all  liability  to 
account  if  he  managed  the  estate.  But 
this  is  a  speculation  with  nothing  to 
support  it.  I  consider  that  Ex.  R  is  the 
best  evidence  on  the  question  of  age. 
This  would  show  that  Ramrup  was  at  least 
18  in  December  1899,  and  if  Ramsuraj  was 
only  four  or  five  years  younger,  he  would 
have  between  19  and  20  when  he  died. 
The  difference  may  have  been  greater,  but 
the  general  effect  of  the  evidence  seems  to 
be,  if  Ex,  R  is  accepted,  that  he  was  old 
enough  to  beget  a  son.  But  the  question 
is  not  whether  he  could  have  begotten  a  son, 
but  whether  he  did  in  fact  beget  one, 
and  this  is  the  real  question  in  the  case. 
The  evidence  on  this  point  is  oral  but  it  may 
to  some  extent  be  tested  by  the  attitude  of 
the  family  in  the  matter, 

By  far  the  most  important  witness  on  this 
point  is  Parbati  Kuer,  the  grand-mother. 
She  says  that  excepting  Dabendra  she  has 
got  no  other  grand-son  and  that  Harnandan 
Kuer  was  not  pregnant  at  the  time  of  her 
husband's  death.  The  learned  Counsel  for 
the  appellant  relied  upon  the  statement 
made  in  cross-examination  by  this  witness, 
that  two  months  after  Harnandan's  depar- 
ture in  t  he  month  of  Katick  she  sent  a  barber 
to  her  with  clothes  and  sweetmeats  and  he 
argued  this  was  in  connection  with  the 
birth  of  Harnandan's  son  but  no  su^h  con- 
clusion was  put  to  the  witness  and  it  is 
impossible  to  infer  from  her  sending  clothes 
and  sweetmeats  in  the  month  of  Kaitick  to 
her  (taught  or- in- law  that  any  son  was  born 
at  that  time.  There  can  be  no  doubt  that 
the  evidence  of  Parbati  is  the  best  evidence 
that  could  be  given.  She  has  no  interest  in 
the  result  of  the  suit  because  she  can  only 
get  maintenance  in  any  case.  There  ia  no 
reason  for  her  to  make  any  distinction 
between  her4  two  sons  and  to  give  evidence 
in  favour  of  one  gr^nd-son  and  against 
another  if  that  other  was  in  fact  her  grand- 
son. It  ia  impossible  to  believe  that  she 
would  have  deposed  in  the  manner  if  her 
son  Ramsuraj  had  lert  his  wife  with  child. 
Hartalika,  the  widow  of  Ramrup,  who  is 
also  a  competent  witness  (as  the  family 
lived  together)  says  that  Harnandan  Kuer 
was  not  pregnant  when  her  husband  died. 
Her  evidence  is,  however,  open  to  the  cri- 
ticism that  she  is  an  interested  witness  and, 
therefore,  not  much  reliance  can  be  placed 


upon  it.  Tapeshwar  Kuer,  the  daughter  of 
Deepan  Tiwari,  a  gotia  who  was  on  terms 
of  close  intimacy  with  Harnandan  Kuer, 
and,  according  to  her  statement;,  her  in- 
separable companion  says  that  she  was  not 
pregnant  when  Ramsuraj  died.  She  says  that 
they  did  not  say  in  Tewarichak  that  a  child 
was  born  to  Harnandan  Kuer  and  that  to 
her  knowledge  no  one  in  the  village  had 
any  information  of  the  birth  of  a  child  and 
there  was  no  rumour  about  it.  The  criticism 
made  on  the  evidence  of  this  witness  is  that 
her  father  Deepan  Tiwari  looks  after  the 
plaintiff's  affairs.  Darsani  Kuer  also  a 
relation  and  gotia  and  resident  of  Tewari- 
chak says  that  when  Ramsuraj  died,  she 
went  to  his  house  and  saw  Harnandan 
Kuer  and  she  was  not  pregnant.  Three 
male  gotias  have  also  given  evidence  on 
this  point— Udaiprakash  Tiwari,  Bajrangi 
Tiwari  and  Deepnarain  Tiwari.  Udaipra- 
kash said  that  he  was  in  the  village  when 
Ramsuraj  died  and  that  he  never  heard  that 
he  ever  had  a  son  and  no  one  in  the  village 
knew  anything  about  it.  He  also  denies  that 
he  had  gone  to  Patna  to  attend  the  mukh- 
dekhai  ceremony  of  the  defendant  No.  1. 
He  says  that  when  Ramsuraj  died  he  heard 
people  saying  that  his  line  had  ceased  to 
exist.  R'ljrangi  gives  similar  evidence. 
Deepnarain  says  that  no  information  was 
sent  to  Tewarichak  from  Machuatoli  that  a 
child  was  born  to  the  widow  of  Ramsuraj 
and  they  did  not  assemble  at  the  Darzitola 
house  to  see  his  face.  Evidence  was  also 
given  by  tenants  of  the  village  to  the 
effect  that  they  had  no  knowledge  of  any  son 
of  Ramsuraj. 

For  the  defence,  evidence  has  been  given 
by  Sheonaudan  l)padhya(D  W.  No.  2)  who 
speaks  of  seeing  Harnandan  Kuer  when  she 
was  pregnant  and  a  little  later  seeing 
Tarkeshwar  when  he  was  about  one  month 
old.  lie  isNanku  Pande's  brother-in-law 
and  it  is  unlikely  that  Harnandan  Kuer 
woul'l  have  appeared  before  him  in  preg- 
nant condition.  Deodhari  Pande  (D.  W.  No, 
8)  a  physician  deposes  that  he  went  twice  to 
Tewarichafc  once  for  the  treatment  of 
Harnandan  Kuer  and  a  second  time  for 
treatment  of  Ramsuraj  Harnandan  Kuer 
was  suffering  from  fever  and  on  examining 
her  pulse  he  finds  that  she  was  pregnant. 
Thin  witness  i»  not  unfamiliar  with  the  law 
Com  ts  and  he  is  a  physician  who  seems  to 
be  attached  to  the  family  of  Nanku  Pande 
from  whom  he  takes  no  fees.  There  does 
not  appear  to  have  been  any  occasion  for 


TARKBSaWAR  PRASAD  TEWARI  V,  DEVBNDRA  PRASAD  TfiWARI. 

his  being  taken  to  Tewarichak.    He  was  not     living  there  with     whom 


0. 1926] 


the  family  doctor  nor  was  he  a  well-kuown 
physician.    Evidence  of  this  nature  does 
not  carry  any  conviction  to  my  mind.  Deo- 
dhari  Kaut  (D.  W.  No.  11)  is    a  servant  of 
Nanku  Pandey  and  wholly  dependent  upon 
him  with  his  whole  family.    His  wife  Chit- 
koeri  (D,  W.  No.  12)  deposes  to  having:  been 
present  at  the    birth.    The  other  witnesses 
are  Nanku  Pande  himself,  Harnandan  Kuer 
and  her  mother  Nandakumari.    Harnandan 
Kuer  says  that  her  mother-in-law  attended 
the  mukhdelchai    ceremony  at  the  Darzitola 
house,  Parbati  denies  this  and    the  other 
persons  named  by  Harnandan  Kuej  as  having 
been  present    were   not    called,    nor  were 
their  name  ever  put  to  Parbati  so  that  the 
plaintiff  might  have  had    an  opportunity  to 
call  them.     Nandakumari    says    that   the 
Guru  of   the  Tiwaris  of    the  Tewarichak 
came  and    blesaed  the    child.     This  Guru 
lives  at  Benares    and    would  presumably 
have  been  an  independent  witness  but  he 
has  not  been  called.     She  also  says  that 
letters  used    to   be  sent  by  Parbati    Kuer 
which  may  be  in  the  possession  of  the  male 
members  of  the  family,     but    no    letters 
were  produced.     Nanku  Pande    says  that 
Brahmins  1^ere  fed  on  the  barhi  day  and 
that  Ramrup,  Kanhauli    people  and  others 
who  were    living  close  to  him  then   were 
called  on  the  occasion  but  of  these  the  only 
one  called  as  a  witness  is  Debendra  Prasad 
Sukul  of  Kanhauli    who  is    a  relation  by 
marriage  and  who  denies  having  attended 
the  barhi  ceremony. 

The  story  of   the   removal  of  Harnandan 
Kuer  from  Tewarichak  to  her  grand- father's 
house  in  Patna  in  the  eighth  month  of  her 
pregnancy  is  improbable    in  itself.    There 
is  no  evidence  of  any  independent  witness 
who  was  present  at    any    ceremony  in  con- 
nection with  the  birth   of  the  child.    The 
pregnancy  of    Harnandan  Kuer  must  have 
been  matter  of  common  knowledge    to  the 
relations  but  not    a  single  member  of    her 
husband's   family  appears  to  give  evidence 
on  her  side.    All  the  Gotias  are  on  the  side 
of  the  plaintiff  and  in  a  matter  of  this  kind 
this  seems  to  me  a    fact  of  the  highest  im- 
portance.   On  the  other  hand  the  evidence 
for  the  defence  is    that  of  the  connections 
or  creatures    of  Nanku  Pande  who  by  his 
own  admissions  was  in  a   position  to  give 
better   and  more    independent     evidence 
than  has  been  adduced     None  of  the  neigh- 
bours   in  Machuatoli  has  .come  to  depose 
although   there  were    respectable  persons 


Nanku  was  on 

friendly  terms,  On  a  consideration  of  all 
the  evidence  and  especially,  the  evidence 
of  Parbati  Kuer,. I  come  to  the  conclusion 
that  Harnandan  Kuer  was  not  pregnant 
when  her  husband  died. 

This  is  enough  for  the  disposal  of  the  case, 
but  the  main  argument  on  behalf  of  the 
appellant  was  that  in  a  long  series  of  docu- 
ments Tarkeshwar  had  been  acknowledged 
as  the    son  of  Ramsuraj.    It  is,  therefore, 
necessary     to    examine    the  documentary 
evidence.    It  was  in  the  first  place  sought  to 
be  established  that  Ramrup  was  capable  of 
business  and  did  in  fact  take  part  in  affairs 
after  the  death  of  Rampratab.    The  docu- 
ments referred    to  in  this  connection  are 
these:   Ex.  R    which    has    been    discussed 
above,  Ex.  X37  this  is  the  certified  copy  of 
a  plaint  dated  the  10th  of  March  1900  which 
purports  to  have  been  signed  by  Ramrup 
for   self  and  for  Ramsuraj   Tewari  minor. 
I  doubt  whether  this  document  was  admissi- 
ble in   evidence.    The  learned  Subordinate 
Judge  apparently    followed   the  ruling  in 
Shazada   Mahomed  Sliahaboodeeji  v.   Daniel 
Wedgeberry  (1).     The     soundness     of  this 
ruling  has  been  questioned  by  Field  (Law 
of  Evidence,  7th  Edition,  p.  236)  and  Wood - 
roffe  (Law  of  Evidence,  7th  Edition,  p.  58d) 
in  their  commentaries  on  the  Evidence  Act. 
It  has  not  been  followed  on    the    Original 
Side  of  the  Calcutta  High  Court,    I  can  see 
no  ground  for  making  a  distinction  between 
plainis  and  written  statements  nor  is  there 
any  reason  why  the    certified  copy    of  one 
should  be  admissible  in  evidence  while  the 
certified  copy  of  the  other  is  not.    Neither 
is     a     public     document.    In  my  opinion 
Ex.  X-37  should  not  have  been  admitted  in 
evidence  Ex.  X-48  is  a  decree  in  Suit  No. 
80  oM900  which  merely   shows    that  Ram- 
rup Tewari  was  a  major  and  was  a  party  to 
the  suit.    Exhibit  X-54,  X  55  and  X  56  were 
three   plaints    in    suits  of    1904    in  which 
Ramrup  Tewari  sued    for   himself  and  as 
guardian  of  Ramsurai.    The  plaints  purport 
to  have  been  signed  by  Ramrup  in  hie  own 
pen.    The  learned  Subordinate   Judge  has 
discussed  the   signatures1  purporting  to  be 
those  of  Ramrup  in  Suit  Nos.  22  and  23  of 
1904  and  in    a   various  vakalatnamas  and 
petitions  filed  in  those   suits  andhascomo 
to  the  conclusion    that  they  are  in  three 
different  hands.    By  comparison  of  some  of 
the    signatures  macje    by  NankaPaude  iu 

(1)  10  B.  L. 


.  0.  192&]          TARKBSftWAR  PRASAD  TEWARt  V.  DBVENDRA  PRASAb 


18ft 


Court  (Ex.  16  series)  and  other  documents 
he  has  held  that  some  of  the  signatures  are 
by  Nanku  PanJe  some  by  Jaldhar  Lil  and 
a  third  set  by  some  one  who  has  not  been 
identified.  I  have  examined  these  signa- 
tures and  it  is  clear  that  they  are  at  all 
events  in  two  different  hands,  possibly 
three,  so  that  it  is  clear  that  whoever  made 
the  signatures  they  were  not  all  made  by 
Ramrup  Tewari  and  possibly  none  was. 
The  inference  to  be  drawn  is  that  his 
name  was  being  used  in  these  documents 
with  or  without  his  authority.  Exhibit  X-62 
is  a  plaint  in  a  suit  of  1905  filed  by  Ramrup. 
Ex.  M:l  is  a  payment  order  for  money  award- 
ed in  compensation  for  land  acquired  by 
the  Government  to  Maheshwardutt  Tewari 
and  Ramrup  Tewari,  Both  purport  to 
have  signed  by  their  own  hands.  The 
only  comment  that  is  to  be  made  on  this 
document  is  that  whereas  Maheshwardutt 
Tewari  was  identified  by  the  manager  of 
the  Court  of  Wards,  Ramrup  was  identified 
by  an  unknown  person. 

Evidence  was  given  by  Babu  Dwarka 
Prasad  Pathak  a  Vakil  who  acts  for  this 
family.  He  proved  a  vakalatnama  (Ex.  K) 
which  showed  that  he  got  it  from  Ramrup. 
He  also  says  that  Ramrup  used  to  come  to 
him  occasionally  in  connection  with  the 
cases  of  the  family  and  he  talked  like  a  man 
of  ordinary  intelligence.  He  did  not  remem- 
ber if  he  had  received  any  instructions 
from  him.  Nanku  Pande  in  his  evidence 
admitted  that  the  sradh  of  Ramsuraj  was 
performed  by  Dultan  Tiwari.  Now  ordinari- 
ly it  was  Ramrup  who  was  entitled  to 
perform  this  sradh  and  the  fact  that  he  did 
not  do  so  lends  some  support  to  the  conten- 
tion that  he  was  not  entrusted  with  the 
management  of  affairs.  There  is  no  doubt 
exaggeration  in  the  plaintiff's  case  about 
'Ramrup  Tewari  but  the  evidence  that  he 
took  an  active  part  in  managing  the  estate 
and  in  the  conduct  of  litigation  is  un- 
convincing while  the  documents  clearly 
show  that  his  name  was  signed  by  others.  It 
improbable,  therefore,  that  if  Nanku  Pande 
intended  when  occasion  offered,  to  create 
evidence  of  Tarkeshwar's  being  the  son  of 
Ramsuraj  the  presence  of  Ramrup  Tiwari 
would  not  offer  any  serious  obstacle. 

I  now  come  to  the  period  after  the  death 
of  Ramsuraj  Tiwari.  Exhibit  P-3  is  a  deed 
o|  sale  ip.  favour  of  Maheshwar  Dutt  Tiwari 
and  Tarkeshwar  through  the  guardianship 
of  hife  mother  Harnaftdan  Kuer,  the  widow 
of  Itanisuraj ,  This  is  dated  fh*  4th  of  Feb- 


ruary  1007    and  it,  in  my  opinion,  clearly 
indicates  that  evidence  was  being  created 
to  support  Tatkeshwar's  claim     No  expla- 
nation   could    be    offered    for  taking  this 
conveyance  in  the   name  of  Tarkeshwar  in 
preference    to  the    name    of    Ramrup  his 
uncle,  who  was  still  alive.  Exhibit  X-80  and 
Ex.  X-81  are  plaints  in  Suit  Nos.  84  and 
85  of  1908  and  they  are  remarkable  for  the 
description  of  Tarkeshwar  as  born  of  the 
seed  of  Ramsuraj  from  the  womb  of  Harnan- 
dan  Kuer.    This  is  an  unusual  expression 
and  further   suppoita    the  theory  that  evi- 
dence was  being  created.    It  may  be  noted 
that  these  documents  were  not  put  to  any 
of  the  plaintiff's  witnesses  and  this   remark 
applies  to  all  the   important   documents  in 
this  case  filed  on  behalf    of   the  defence 
except  Ex.  A.    Two  of  the    defendants  in 
these  suits  disputed   the    allegation     that 
Tarkeshwar  was  the  son  of  Ramsuraj  and 
the  question  was  decided  in  favour  of  the 
plaintiffs  on  the  evidence  of  MaheshwarDutt. 
But  it  is    significant   that  the  question  of 
the    origin  of  Tarkeshwar  was  raised  by 
stangers  to  the  family  at  this  early  date.  It  is 
true  that  they  did  not  attempt  to  substanti- 
ate their  allegation  but  this  allegation  could 
not  have  been  made  if  there  had  not  in  fact 
been  some  serious  doubt  as  to  Tarkesh war's 
origin  Ex.  R-4  is  an  application  for  registra- 
tion of  names  filed  by  Ramrup  on  the  13th 
of  January  1908.    This    document  recited 
that  about  three  months  after  the   death    of 
Ramsuraj  a  son  named  Tarkeshwar  Prasad 
Tewari  was  born  to  him  and  it  purports  to 
be  signed  by  Ramrup  Tewari  by  his  own 
hand.    But  no  weight  can  be  given  to  this 
document  because  the    original    was    not 
produced    and  in  view    of    the    evidence 
above  referred  to  that  the  name  of  Ramrup 
Tewari  was    used  by  others,    there  is   no 
presumption  that  he  actually  signed    this 
document  himself.    Moreover  the  statement 
that    Tarkeshwar  was    born    about    three 
months   after    the    death  of  Ramsuraj   i& 
inctiiisistent  with  the  evidence  in  the  present 
case  that  thebirth  took  place  about  six  weeks 
after.    Exhibit    R  8    is  an    application  for 
registration  on  behalf  of  Debendra   Prasad 
Tewari  made  on  the  19th  of  February  1909 
after  the  death  of  Ramrup.    It  recites  that 
Parbati  Kuer  was    the  grandmother  of  De- 
bendra and  of  Tarkeshwar  and  it  purports 
to  be  signed  on  behalf  of  Debendra  through 
the  guardianship  of  his  mother  Hartalika 
"by  the  pen  of  Kuber  Tewari,  his  maternal 
uncle.    Kuber  is  dead.     But  his  brother 


100 


PftASAD  TEwAtel  V.  DE7ENDRA  fcRASAD  TBWABI.       [92  I.  0. 


Shivajee  Tewari  (P.  W.  No.  36)  was  examin- 
ed by  the  plaintiffs  and  this  document  was 
notput  to  him.  It  cannot,  therefore,*be  given 
much  weight.  Exhibit  R-9  is  the  applica- 
tion on  behalf  of  Tarkeshwar  filed  in  1910. 
Thisdocumen-  '.»•'-  'by  Kunj  Behari  Lai 
his  servant,  i>  •  ;  and  U-l  are  a  peti- 

tion for  returning  certain  documents  and 
an  affidavit  in  support  thereof,  dated  the 
30th  and  31st  July  1908.  It  is  asserted  in 
these  documents  that  Tarkeshwar  is  the 
son  of  Ramsuraj  and  the  affidavit  purports 
to  have  been  sworn  by  Ramrup.  The 
learned  Subordinate  Judge  in  discussing 
the  signature  of  Ramrup  on  the  vakalatna- 
ma  in  this  matter  (Ex.  0.  3)  has  shown 
that  there  is  no  certainty  that  it  is  his. 
Exhibit  W  is  a  curious  document.  It  is  a 
petitionfor  execution  of  a  decree  filed  on  the 
ILth  of  March  1909.  It  shows  that  the 
previous  execution  case  was  struck  off  in 
1901.  On  the  face  of  it,  therefore,  this 
application  was  barred  by  time.  It  alleges 
that  Tarkeshwar  was  the  son  of  Ramsuraj 
and  the  petition  bears  not  only  the  signature 
of  Jaleshwar  Prasad  Tewari  who  presented 
it,  but  f  •'..  .'  :  of  the  Pleaders  Akhoy 
Kumar  M  .  .  'warka  Prasad  Pathak. 
The  order  sheet,  Ex.  X-17,  shows  that 
Tarkeshwar  was  substituted  for  Kamsuraj 
as  decree-holder.  Apparently  this  was  the 
object  of  the  application  because  no  further 
steps  were  t^ken  and  the  case  was  dismissed 
for  want  of  prosecution.  It  is  difficult  to 
understand  why  a  petition  for  execution 
which  was  obviously  time-barred,  should 
have  been  filed  unless  it  was  with  the 
object  of  creating  evidence. 

Exhibit  X-49  is  the  decree  for  the  registra- 
tion of  Tarkeshwar's  name  in  the  Collec- 
torate  but  the  petition  itself  has  not  been 
produced,  Exs.  X-27,  X-29a  and  X-31  are 
plaints  and  decrees  in  suit  showing  that 
Tarkeshwar  was  impleaded  in  these  litiga- 
tions some  of  which  were  at  the  instance  of 
the  other  members  of  the  family.  Exhibit 
A  is  a  security  bond  executed  by  Hartalika 
Kuer  and  Ramlagan  Pande  on  the  18th 
June  1916,  which  declares  the  ancestry  of 
Tarkeshwar  in  the  same  terms  as  the 
plaints  of  1908  and  purports  to  be  signed 
by  Hartalika  by  her  own  pen.  Hartalika 
in  her  evidence  says  that  she  has  not 
signed  any  doeument  with  the  knowledge 
that  it  had  the  name  of  Tarkeshwar  in  it. 
Exhibits  X-64  and  X-65  are  plaints  in  suit 
Nos,  83  and  84  of  1916  by  Debendra  and 
r  verified  and  signed  by  Harihar 


Lai,  servant  of  the  plaintiff.  The  learned 
Counsel  for  the  appellant  referred  to  an 
affidavit  in  the  present  suit  sworn  on  behalf 
of  the  plaintiffs  by  Harihar  Lai  son  of 
Khiali  Lai  and  contends  that  this  is  the 
same  person.  Eveii  if  he  is  the  same  person, 
the  statement  in  the  plaint  Ex  (34  that 
Tarkeshwar  is  the  son  of  of  Ramsuraj  is 
only  the  statement  of  a  servant  and  will  not 
bind  the  plaintiff.  But  Hartalika  denies 
that  Harihar  Lai  was  ever  her  servant  and  the 
defence  lias  not  proved  identity.  Exhibit  8 
is  a  petition  by  Maheshwar  Duttand  others 
acknowledging  the  receipt  of  decretal 
money.  This,  however,  is  a  late  document 
of  the  year  1917  and  as  Tarkeshwar's  name 
had  been  registered  it  must  appear  in  such 
documents  as  these.  The  same  remark 
applies  to  Ex.  N  which  is  dated  the  23rd 
September  1917.  Exhibit  B  is  a  ^deposition 
of  Dipan  Tewaii  made  in  1  )15  in  which  he 
spoke  of  lending  money  to  the  grandmother 
of  Dependra  and  Tarkeshwar.  Exs.  M  and 
M2  are  receipt  for  compensation  granted 
for  lands,  acquired  by  the  Government, 
These  are  of  1913  one  by  Harnandan  Kuer 
on  behalf  of  l>avendra.  The  same  remark 
applies  to  these  documents  aleo  as  also  to 
Exs.  R  10  and  R-ll.  Exhibit  O  is  an  account- 
book  from  1307  to  1311  showing  expenses 
in  connection  with  Tarkeshwar1s  visits  to 
Tewarichak.  These  papers  came  from  the 
custody  of  Kunj  Behari  Lai  and  may  have 
been  fabricated,  at  all  events  they  are  not 
beyond  question. 

These  are  the  principal  documents  that 
were  referred  to  in  the  course  of  the  argu- 
ment. The  name  of  Tarkeshwar  was  entered 
in  the  Collectorate  Registers  and  also  in 
the  Record  of  Rights  which  was  prepared 
between  1909  and  1911.  On  the  other  hand 
the  documents  which  are  evidence  of  actual 
payment  of  revenue  do  not  show  the  names 
of  Tarkeshwar.  The  plaintiff  has  produced 
about  260  land  revenue  chalans  and  only 
one  of  these  shows  a  payment  of  4  annas 
said  to  have  been  made  by  Tarkeshwar  and 
this  entry  was  made  by  Kunj  Behari  Lai 
just  when  he  was  about  to  leave  the  plaint- 
iff's service.  The  defence  has  produced  no 
revenue  chalans.  Ail  the  canal  irrigation 
papers  are  in  the  name  of  the  plaintiff. 
There  is  a  large  volume  of  oral  evidence 
to  the  effect  that  Nanku  Pande  and  Duttan 
Tewari  managed  all  the  affairs.  This  evidence 
is  given  by  Hartalika,  Parbati,  Udaiprakash, 
Ram gulam  Singh,  Sheo  Singh,  Kali  Singh, 
Bekahal  Pande,  Dipnarayau  Tewari, 


[92  I.  0. 1926] 


khelawan  Singh  ,  and  many  others.  Kunj 
Bihari  in  his  evidence  indicates  that  the 
ijmali  papers  were  with  Duttan  Tewari. 
This  shows  he  was  managing  the  property. 
Reviewing  these  documents,  as  a  whole, 
they  seem  to  me  to  bear  clear  indications 
that  evidence  was  being  created  on  behalf 
of  Tarkefihwar.  No  admission  has  been 
brought  home  to  the  plaintiff  or  his  mother 
and  in  view  of  the  use  that  has  been  made 
of  Ramrup's  'name  it  is  impossible  to  say 
that  any  admission  was  made  by  him  either. 
It  is  contended  for  the  appellant  that  if 
Tarkeshwar  was  not  the  son  of  Rainsuraj 
the  fact  must  have  been  known  to  the 
members  of  the  family  and  the  fraud  would 
have  been  exposed  long  ago.  But  it  was 
not  a  simple  matter,  as  the  volume  of  evi- 
dence presented  in  the  present  suit  shows, 
and  gotias  v,ho  have  no  particular  interest 
in  the  matter  and  were  not  affected  one 
way  or  another  whether  Ramsuraj  left  a  son 
or  not,  could  not  be  expected  to  embark 
upon  an  expensive  litigation  for  no  immedi- 
ate object.  It  was  not  until  Debendra  was 
married  that  it  became  possible  to  take  the 
matter  up.  The  defence  attributes  this 
litigation  to  Debendra's  father-in-law,  Hiia 
Lai  Missir  a  Police  8ub  Inspector  and  it 
may  be  that  he  has  brought  the  matter  to 
a  head.  But  he  is  the  only  person  who  has 
been  in  a  position  to  do  so  and  has  an 
interest  in  doing  so.  The  documents,  in 
my  opinion  do  not  make  the  conclusion  at 
which  I  have  already  arrived  on  a  con- 
sideration of  the  oral  evidence  as  to  the 
pregnancy  of  Karnandan  Kuer  and  I  find 
nothing  in  these  papers  which  convincingly 
establishes  Tarkesh war's  ancestry  as  alleged 
"by  the  defence. 

The  result  is  that  the  appeal  must  be 
dismissed  with  costs. 

Permission  was  given  in  this  case  by  the 
learned  Registrar  to  the  appellant  to  have 
type-written  copies  of  the  papers  prepared 
instead  of  the  ordinary  printed  paper-book. 
The  learned  Registrar  apparently  relied 
upon  the  provisions  of  r.  30  in  Ch.  IX  of 
the  Rules  of  the  High  Court  which 
empowers  him  to  exempt  any  appellant  or 
respondent  from  the  operation  of  the  whole 
or  any  part  of  the  rules  of  the  Chapter. 
Now  rule  1  directs  that  the  paper-book 
shall  be  printed  in  accordance  with  the 
directions  therein  laid  down.  Rule  4  pro- 
vides that  in  every  case  in  which  an  appeal 
has  been  admitted  the  Registrar  shall  cause 
&  paper-book  to  be  prepared  in  accordance 


COLE  v.  KAMALAL  MORAJI  £>AVB.  191 

with  the  rules  of  this  Chapter  with  the 
proviso  that  in  ^mall  or  urgent  cases  where 
good  cause  has  been  shown  the  Registrar 
may  allow  any  party  to  put  in  typed  copies. 
The  construction  placed  upon  r  30  makes 
the  proviso  to  r.  4  supeiHuous  and  r.  30  must 
be  construed  as  subject  to  rr.  1  and  4.  In 
my  opinion  the  learned  Registrar  had  not 
authority  to  exempt  the  appellant  fiom 
having  a  printed  paper-book  prepared  in 
this  case. 

Das,  J.—I  agree. 

z,  K.  Appeal  dismissed. 


BOMBAY  HIGH  COURT. 

ORIGINAL  CIVIL  JURISDICTION  SUIT  No.  4879 

OF  11)23. 
July  4,  1924. 

Present: — Justice  Sir  Amberson  Marten >  KT, 
A.  CECIL  COLE— PLAINTIFF 

versus 

NANALAL  MORAJI  DAVE  AND  ANOTHER 
— DEFENDANTS. 

Construction  of  document — Hire-purchase  agreement 
— Agreement  to  sell— Property,  whtn  passes —Contract 
Act  (IX  of  1872),  s  78. 

Under  a  hire-purchase  agreement,  in  the  sense  in 
which  it  is  understood  in  England,  there  is  no 
absolute  sale  of  the  chattel  but  only  a  hiring  of  it  by  a 
person  who  has  the  option  of  returning  it  at  any  time 
before  the  vaiious  instalments  are  paid  Under  such 
an  agreement  the  property  in  the  chattel  does  not  pass 
to  the  purchaser  until  the  whole  price  has  been  paid, 
[p.  192,  col  1,  p  194,  col  2] 

An  agreement  entered  into  between  the  parties  pro- 
vided that  the  plaintiff  had  agreed  to  sell  to  the 
defendant  on  the  hire-purchase  system,  for  a  certain 
sum  of  money,  a  certain  number  of  motor-lorries  in 
consideration  of  payment  of  the  price  by  certain 
instalments  settled  between  the  parties  It  was  also 
provided  that  in  case  of  failure  to  pay  any  of  the 
instalments  on  the  due  date,  the  previous  payments 
would  be  considered  null  and  void.  The  lornes 
were  not  to  be  considered  as  sold  until  the  final  pay- 
ment wrf  made  The  defendant  was  prohibited  from 
mortgaging  or  disposing  of  the,  lorries  until  the  final 
instalment  was  paid  and  the  plaintiff  had  the  right  to 
seize  the  lorries  wherever  they  may  bo.  A  portion 
of  the  price  was  paid  at  the  time  of  the  execution 
of  the  agreement  arid  delivery  of  the  lorries  was  given 
to  the  defendant  and  they  were  transferred  to  his  name 
in  the  registers  kept  by  the  Commissioner  of  Police. 
Defendant  paid  some  of  the  instalments  and  then 
made  default.  Plaintiff  thereupon  brought  a  suit  to 
recover  from  the  defendant  the  balance  of  the  unpaid 
instalments  together  with  damages  alleging  that  the 
defendant  was  merely  a  hirer  of  the  lorries  and  in 
the  alternative  to  recover  the  balance  of  the  price  if 
it  was  held  that  the  agreement  was  one  of  sale; 


OfetilL  OOLfi  V.  NANALAL  MORAJI 


[SS  I.  0. 


d,  (1)  that  the  agreement  was  one  of  sale  pro- 
viding for  the  price  to  be  paid  by  instalments  and  that 
the  property  in  the  lorries  had  passed  to  the  defend- 
ant on  the  execution  of  the  document,  [p.  195,  col.  1.] 
(2)  that  the  plaintiff  was,  therefore,  entitled  only  to 
claim  the  balance  of  the  purchase-money  which  had 
not  been  paid  by  the  defendant,  [ibid.] 

FACTS.— In  this  case  the  plaintiff  made 
over  certain  motor  vehicles  to  defendant 
No.  1  under  an  agreement,  the  material 
portion  of  which  was  as  follows: — 

"I  have  to-day  agreed  to  sell  to  you  on  the 
hire-purchase  system  for  Rs.  25,000  my 
nine  lorries  and  accessories  together  with 
office  furniture  lying  at  present  at  the 
garage. ..In  case  of  failure  to  pay  any  of 
the  instalments  on  due  date  previous  pay- 
ments will  be  considered  null  and  void  arid 
the  lorries  are  not  considered  as  sold  until 
the  final  payment  has  been  received.  The 
purchaser  has  no  right  to  mortgage  or  dis- 
pose of  any  lorries  until  the  final  amount 
has  been  paid1'  [A  list  of  instalments  was 
then  given  which  made  up  the  full  amount 
of  Rs  25,000.] 

The  defendant  did  not  pay  all  the  instal- 
ments, and  pledged  the  vehicles  with  de- 
fendant No.  2.  The  plaintiff  alleged  in  his 
suit  that  defendant  No.  1  was  merely  a 
hirer  of  the  vehicles  and  had  no  right  to 
pledge  them,  and  claimed  the  unpaid  in- 
stalments and  damages.  In  the  alternative 
he  prayed  that  if  the  defendant  No.  1  beheld 
to  be  a  purchaser  the  plaintiff  should  be 
paid  the  balance  of  the  price  with  interest. 

Mr.  Davar,  for  the  Plaintiff. 

Mr.  M.  V.  Desai,  for  Defendant  No.  2. 

JUDGMENT.— [His  Lordship  after 
giving  the  facts  of  the  case  proceeded:— ]  The 
first  point  that  really  arises  is  what  is  the 
nature  of  the  agreement  which  the  parties 
entered  into.  Was  it  a  hire-purchase  agree- 
ment in  the  sense  in  which  it  is  so  understood 
in  England,  viz.,  no  absolute  sale,  but  only  a 
hiring  of  the  chattel  by  a  person  who  has 
the  option  of  returning  it  at  anytime  before 
the  various  instalments  are  paid  ?  Or,  on 
the  other  hand,  despite  the  language  which 
the  parties  have  used,  was  it  really  a  sale 
having  regard  to  what  the  parties  in  fact 
agreed  to  do  ?  Before  I  turn  to  the  actual 
document  in  this  case,  I  wish  to  keep  thfcse 
two  points  of  principle  clearly  before  me, 
so  that  when  I  come  to  the  document,  I  can 
show  what  in  particular  are  'the  relevant 
passes  to  be  borne  in  ttiind. 

Now  ihore  are  ttvo  lines  of  Authority 
illustrating  what  I  have  just  said.  The 


first  line  of  cases  illustrates  a  hire-purchase 
agreement  proper,  viz.,  where  the  hirer  6f 
a  chattel  has  only  an  option  to  purchase  the 
goods  and  isunderno  obligation  to  purchase. 
That  is  shown  in  Helby  v.  Matthews  (1),  A 
leading  case  on  the  other  side  of  the  line  is 
Leev.  Butler  (2)  where  notwithstanding  the 
fact  that  the  parties  spoke  of  themselves  as 
being  hirers  and  so  on,  and  notwithstand- 
ing that  it  was  expressly  agreed  that  no 
property  other  than  as  tenant  should  vest 
in  the  hirer  until  the  whole  of  the  pay- 
ments of  rent  thereby  reserved  should  have 
been  actually  paid,  the  Court  there  held 
that  the  hirer  of  the  goods  had  agreed  to 
buy  them  notwithstanding  the  language 
used  in  the  agreement. 

Then  if  I  turn  to  Behize  Motor  Supply 
Company  v.  Cox  (3)  the  judgment  of  Mr. 
Justice  Channell  states  the  dividing  line 
between  these  two  classes  of  cases.  In  that 
particular  case  the  owners  of  a  motor 
vehicle  let  it  to  certain  hirers  for  twenty- 
four  calendar  months  at  the  rate  of  £15  12$  2d 
per  calendar  month.  On  the  signing  of  the 
agreement  the  hirers  were  to  pay,  and  did 
pay,  £  50  on  account  of  hire  in  advance, 
and  each  subsequent  payment  was  to  be 
made  in  advance  on  specified  dates.  The 
hirers  were  not  to  re-let,  sell,  or  part  with 
the  vehicle  without  the  consent  in  writing 
of  the  owners.  But  if  the  hirers  should, 
on  or  before  the  expiration  of  the  twenty- 
four  calendar  months,  be  desirous  of  pur- 
chasing the  vehicle  they  could  do  so  by 
making  the  amount  of  hire  paid  equal  to 
the  amount  of  £422  lls  6rf.  Then  if  thehirers 
did  certain  things,  of  which  parting  with 
the  possession  of  the  vehicle  without  the 
owners'  consent  in  writing  was  one,  it  was 
made  lawful  for  the  owners  and  they  were 
authorised  to  take  possession  of  the  vehicle 
and  terminate  the  agreement.  Then  it 
appears  that  while  the  agreement  was  sub- 
sisting, there  being  a  sum  due  and  unpaid 
on  account  of  hire,  the  hirers  without  the 
consent  of  the  owners  pledged  the  vehicle 
to  a  pledgee  who  took  it  in  good  faith  and 
without  notice  of  the  owners*  rights.  Sub- 
sequently the  owners  on  hearing  6f  'the 
pledge  demanded  the  vehicle  from  the 


(1)  0895)  A.  C.  471;  64  L.  J.  Q.  B.  465;  11  R.232;  72 
L.  T.  841;  43  W.  R.  561;  60  J.  P.  20. 

(2)  (18*3)  2  Q.  B.  318;  62  J,.  J.  Q.  B.  591;  4  R.  563;'«9 
L.  T.  370;  42  W.  R.  88. 

(3)  (1914)  1  K,  B,  244:  83  L.  J.  K.B.261;   HO  L,  ft 
151. 


[921.  O.  1926J 


CECIL  COLE  r.   NANALAL  MORAJI  DAVE. 


193 


pledgee,  who  refused  to  restore  it.  At  the 
date  of  this  demand  and  refusal  there  was 
a  sum  of  £58  9s  due  and  unpaid  on  account 
of  hire. 

Mr.  Justice  Ghannell,  in  delivering  the 
jii-iumoi:f.  said(pa£e2oO*):— 

"I'liuiirst  question  is  whether  this  case 
comes  within  the  principle  of  Helby  v. 
Mattheivs  (1)  or  that  of  Lee  v.  Butler  (2)  and 
later  cases  of  the  same  class.  To  decide 
that  question  I  have  to  see  whether  in  this 
agreement  of  December  10,  1910,  the  Burgess 
Company,  the  original  hirers,  bound  them- 
selves to  buy  the  motor  cab.  The  case  of 
Lee  v.  Butler  (2)  which  was  not  dissented 
from  in  Helby  v  Matthews  (1),  decided  that 
where  the  hirer  has  agreed  to  pay  all  the 
instalmentsof  purchase-money  that  amounts 
to  an  agreement  to  buy,  and  the  case  comes 
within  s.  9  of  the  Factors  Act,  1889,  or  s.  25 
of  the  Sale  of  Goods  Act,  1893.  In  Helby 
v.  Matthews  (1)  it  was  decided  that,  as  the 
hirer  had  an  option  to  return  the  goods,  the 
case  did  not  come  within  the  sections.  When 
those  cases  had  been  decided  the  case  of 
Hull  Ropes  Co.,  v.  Adams  (4)  came  before  a 
Divisional  Court,  No  report  of  Ilelby  v. 
Matthews  (i)  had  as  yet  been  published  in 
the  Law  Reports,  and  the  Court  reserved 
judgment  until  a  report  should  appear. 
Having  seen  the  report  they  decided  that  the 
facts  in  Hull  Ropes  Co.  v.  Adams  (4)  did  not 
bring  the  case  within  the  decision  of  Ilelby 
v.  Matthews  (1).  There  is  no  conflict  between 
these  cases.  Where  the  agreement  contains 
an  obligation  to  pay  the  purchase-money 
it  is  an  agreement  to  buy.  In  the  present 
case  there  is  a  positive  obligation  to  pay 
twenty- four  instalments  of  &  15  12  s.  2  d. 
That  amounts  to  £  374-12-5.  There  was 
also  an  obligation  to  pay  on  the  signing  of 
the  agreement  the  sum  of  £  50  'on  account 
of  hire  in  advance1.  If  £  374  12  s.  had  been 
the  entire  sum  which  would  have  been 
necessary  to  enable  the  hirer  to  say  that  the 
cab  was  his  property,  the  agreement  would 
have  beetf  an  agreement  to  purchase  within 
the  principle  of  Lee  v.  Butler  (2)  but  £  374 
12  s.  was  short  of  the  entire  purchase-money 
by  the  exact  sum  of  £  50  (5).  If  the  hirers 
had  both  paid  the  £  50  and  all  the  twenty- 
four  instaunents  they  would  have  paid  up 

(4)  (1895)  65  L.  J.  Q.  B.    1H;  73  L.  T.  446;  44  W.  K. 
108. 

(5)  Both  parties   ignored  as  being  immaterial  the 
difference  between  £  424  1?*.  (i.e.  £50-M  374  12   *) 
and  the  figure  £  424  11*.  6d  specified  aa  the  purchase 
price  in  clause  5  of  the  agreement  of  December  10,  1910. 

I K.  B,— [Ed.\ 

13 


the  full  amount  required  to  purchase  the 
cab;  but  the  £  50  would  have  been  paid 
as  deposit  on  account  of  purchase-money  in 
advance.  The  document  on  the  face  of  ifc 
gives  the  hirers  an  option  to  purchase  at 
any  time  by  paying  up  the  difference 
between  £  424  11  s.  6  d.  and  the  sum 
already  paid.  That  id  an  option  which  no 
doubt  the  hirers  \\ould  probably  exercise 
unless  it  proved  valueless,  but  it  is  none 
the  less  an  option  when  they  had  paid  the 
twenty- fourth  instalment  to  decline  to 
proceed  with  the  purchase,  and  to  claim  a 
return  of  the  £  50  deposit.  In  my  view  they 
were  never  bound  to  pay  more  than  £  374 
12  ,9.  They  never  bound  themselves  to  pay 
the  whole  sum  of  £  424  11  s.  6  d.  The 
case,  therefore,  comes  within  the  principle 
of  Helby  v  Matthews  (I)  and  not  within  Lee 
v  Butler  (2).11 

Then  I  may  mention  one  more  case  of 
Lewis  &  Sons  v.  Thomas  (6)  where  the  head- 
note  r\ms: — 

"A  hirer  of  personal  chattels  under  a 
hiring  agreement  which  gives  him  an  option 
to  purchase  them  upon  payment  of  all  the 
agreed  instalments  of  rent,  but  imposes 
upon  him  no  obligation  to  do  so,  is  not  the 
'true  owner1  of  the  chattels  within  the  mean- 
ing of  s.  5  of  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882." 

There  in  effect  the  Court  thought  that  the 
case  came  within  Ilelby  v.  Mattheivs  (1). 

Then  in  India  there  is  a  case  of  In  re 
Linotijpz  and  Machinery  Co.  and  Windsor 
Press  (7)  under  the  Stamp  Act,  where  the 
Court  held  that  the  document  in  that  case 
was  an  agreement  and  not  a  conveyance.  I 
do  not  think  1  need  go  into  the  details  of 
that  case. 

There  is  one  more  authority  in  Brij 
Coomaree  v.  Salamandar  Fire  Insurance 
Company  (S),  where  it  is  pointed  out  that  the 
rights  of  parties  are  governed  by  the  pro- 
visions of  the  Indian  Contract  Act,  and  that 
if  they  figree  to  do  certain  thiijgs,  then  in 
law  certain  consequences  are  bound  to  ensue. 
Sir  Francis  Maclean  there  says  (page  823*):— 

"But,  if  you  find  in  a  contract  certain 
terms  from  which,  when  they  exist,  the 
Legislature  says  that  certain  consequences 
Shall  ensue,  these  consequences  must  ensue; 
otherwise,  it  is  difficult  to  see  what  object 

(6)  (1919)  1  K.  B.  319;  88  L.  J.  K.  B.  275;  118  L.  T, 
689;  (1918-19)  B,  &  O.  R.  65. 

(7)  37  Ind.  Cas.  175;  44  0.  72;  24  0.  L.  J,  93;  20  C.  \V. 
N.  1252. 

(8)  20JU6. 

""•Page  o£320.— [#«n : \  ~~ 


194 


CECIL  COLE  V.  NANALAI,  MORAJI  DAVB, 


[92  t  0. 1926] 


there  can  be  in  codifying  the  law  upon  the 
Question.  For  these  reasons  I  think  that 
the  property  in  the  goods  was  in  the  plaint- 
iff and  that  they  were  covered  by  the  policy 
of  insurance/1 

Now  the  very  expression  "hire  purchase 
Agreement"  is  not  one  that  originated  in 
this  country.  It  is  clearly  a  form  of  agree- 
ment which  has  originated  in  England  and 
has  been  created  by  those  engaged  in  the 
trade  of  particular  articles.  Substantially 
in  this  country  there  is  little  or  no  autho- 
rity on  hire-purchase  agreements.  At  any 
rate  none  has  been  cited  to  me,  although 
there  has  been  some  reference  to  some  un- 
authorised reports  which  I  am  told  are  not 
even  in  the  Bar  Library.  Under  these  cir- 
cumstances I  propose  to  follow  the  dis- 
tinctions adopted  in  the  House  of  Lords 
between  these  twoclassesof  authorities,  and 
to  consider  whether  in  the  suit  agreement 
there  was  an  obligation  by  the  purchaser 
to  buy.  As  was  said  by  Lord  Herschell  in 
Helby  v.  Matthews  (1)  (page  477*):— 

"Reliance  was  placed  on  the  decision  in 
Lee  v.  Butler  (2),  and  it  was  said  that  the 
present  case  was  not,  in  principle,  distingu- 
ishable from  it.  There  seems  to  me  to  be 
the  broadest  distinction  between  the  two 
cases.  There  was  there  an  agreement  to  buy. 
The  purchase-money  was  to  be  paid  in  two 
instalments,  but  as  soon  as  the  agreement 
was  entered  into  there  was  an  absolute 
obligation  to  pay  both  of  them,  which  might 
have  been  enforced  by  action,  The  person 
who  obtained  the  goods  could  not  insist  upon 
returning  them  and  so  absolve  himself  from 
any  obligation  to  make  further  payment. 
Unless  there  were  a  breach  of  contract  by 
the  party  who  engaged  to  make  the  pay- 
ments the  transaction  necessarily  resulted 
in  a  sale.  That  there  was  in  that  case  an 
agreement  to  buy  appears  to  me,  as  it  did 
to  the  Court  of  Appeal,  to  be  beyond  ques- 
tion/1 

(Here  his  Lordship  set  out  the  relevant 
portions  of  the  agreement  and  proceeded.] 
Now  was  there  any  option  to  the  purchaser 
to  return  these  lorries  after,  say,  he  had 
paid  four  instalments?  In  my  opinion 
there  was  not.  The  agreement  begins  with 
an  agreement  to  sell.  I  agree  the  words  "on 
the  hire-purchase  system"  follow,  but  never- 
theless it  is  an  agreement  to  sell  for 
Es.  25,000,  and  it  is  to  be  "in  consideration 
of  payment  as  under."  Then  lower  down 
the  agreement  provides:  "The  considera- 
^tf&ge  of  (1895)  A,  0,— [Ed*];  ~ ' 


tion  is  to  be  paid  as  under11  and  a  list  of 
instalments  is  given  which  makes  up  the 
full  purchase- price  of  Rs.  25,000.  1  read 
that  document  as  meaning  that  the  pur- 
chaser was  bound  in  any  event  to  pay  the 
whole  of  this  consideration  of  Rs.  25,000, 
and  that  it  would  be  a  breach  of  contract 
on  which  he  could  be  sued  if  he  failed  to 
pay  up  any  of  the  instalments.  I  do  not 
overlook  the  fact  that  the  agreement  pro- 
vides that  "in  case  of  failure  to  pay  any  of 
the  instalments  on  due  date  previous  pay- 
ments will  be  considered  null  and  void/1 
But  that  may  be  referable  to  the  kind  of 
measure  of  damages  that  the  parties  had 
in  mind.  I  cannot  consider  those  words 
as  implying  that  the  purchaser  had  an 
option  to  return  the  vehicles  provided  he 
forfeited  the  past  instalments  actually  paid. 
Then  there  is  a  provision  that  "the  lorries 
are  not  considered  as  sold  until  the  final 
payment  has  been  received/1  But  there  again 
one  must  consider  what  is  the  principle  on 
which  the  dividing  line  in  the  above  cases 
has  been  laid  down.  If  then  there  was  a 
sale,  on  the  true  construction  of  this  docu- 
ment, 1  cannot  read  this  clause  as  meaning 
that  the  property  was  not  to  pass  notwith- 
standing that  the  purchaser  definitely  agreed 
to  buy  the  lorries  and  took  deliveiy  ,  of 
the  lorries  there  and  then,  and  agreed  to 
pay  the  purchase-money  by  instalments.  If 
one  turns  to  s.  78  of  the  Indian  Contract 
Act,  it  is  clear  that  in  such  a  case  the  pro- 
perty in  the  goods  would  ordinarily  pass. 

There  is  one  further  point  that  the  agree- 
ment speaks  of  delivery  of  all  the  lorries 
having  been  given  that  day.  That  is  an 
expression  which  is  applicable  as  between 
a  vendor  and  a  purchaser.  For  a  mere 
hirer  who  has  taken  the  goods  on  hire, ,  de- 
livery perhaps  is  not  quite  the  apt  word  to 
use. 

Then  similarly  •  the  fact  that  the  motor 
lorries  are  to  be  transferred  to  the  name  of 
the  purchaser  in  the  motor  register  kept  by 
the  Commissioner  of  Police,  is  at  least  in 
keeping  with  the  view  that  the  defendant 
was  to  be  the  purchaser  although  the  pur- 
chase-money was  to  be  paid  by  instalments. 
At  the  moment  I  have  only  before  me  the 
Act  itself,  viz.,  The  Indian  Motor  Vehicles 
Act,  1914,  s.  10  of  which  provides:  "The 
owner  of  every  motor  vehicle  shall  cause  it 
to  be  registered  in  the  prescribed  manner/1 
The  rules  under  that  Act  which  are  before 
me  are  "The  Bombay  Motor  Vehicles  Rules, 
191511  which  are  set  out  in  'The  Motori»t* 


[9$  I,  0.  1926]  PARBOD&  SltfGK  V.  BODH  RAJ. 

Guide  (India),  2nd  Edition1*  of  Mr.  Giles, 
Head  Police  Office,  Bombay.  But  I  am  in- 
formed by  Counsel  for  the  plaintiff  that  since 
thenotherrules  have  been  issued  by  Govern- 
ment, particularly  in  connection  with  motor 
lorries,  and  that  under  those  rules  a  person 
who  plies  a  vehicle  for  hire  and  some  other 
persons  who  are  not  necessarily  the  true 
owners  have  to  be  registered.  If  that  is  so, 
then  the  point  that  these  lorries  were  to  be 
transferred  to  the  name  of  the  defendant  is 
not  so  significant  as  it  otherwise  would 
have  been. 

What  has  really  happened  here  is  that 
this  is  a  home- drawn  document,  in  which 
the  parties  have  talked  glibly  about  a  hire- 
purchase  agreement  without  really  under- 
standing what  it  means:  and  I  have  to 
make  the  best  sense  I  can  of  it.  In  my 
opinion  on  its  true  construction  it  was 
really  a  sale  where  payment  was  to  be  made 
by  instalments,  and  it  comes  within  the 
principle  of  Lee  v.  Butler  (2)  and  not  with- 
in Helby  v.  Matthews  (1).  Under  these 


A  mortgage-deed  stated  that  the  mortgage  was  for 
a  period  of  four  years  and  that  interest  would  be 
calculated  every  two  years: 

Held,  that  in  the  absenca  of  an  express  stipulation 
in  the  deed  for  payment  of  compound  inteiest,  the 
deed  could  not  be  construed  as  meaning  that  com- 
pound interest  was  to  be  charged  after  every  two 
years  [p.  196,  cols.  1  &  2.1 

Second  appeal  from  a  decree  of  the 
District  Judge,  Shahpur  at  Sargodha,  dated 
the  27th  May  1924,  modifying  that  of  the 
Senior  Sub- Judge,  Sargodha,  dated  the  Hth 
August  1923. 

Pandit  Sheo  Narain,  R.  B.,  Lala  Badri 
Das,  R,  B ,  and  Lala  Arjun  Das,  for  the 
Appellant. 

Bakhahi  Tek  Chand,  for  the  Respondents* 


circumstances,  in  my  opinion,  the  property 
in  these  lorries  passed  to  the  purchaser  on 
the  execution  of  the  document. 

That  being  so,  the  relief  which  the  vendor 
is  entitled  to  is  to  claim  the  balance  of  the 
purchase-money  for  goods  sold  and  deliver- 
ed. It  will  be  seen  on  looking  at  the  plaint, 
prayer  (d),  that  the  plaintiff's  claim  is  put 
in  the  alternative  there,  viz,,  first  for  un- 
paid instalments  and  also  for  damages,  and 
alternatively  uin  the  event  of  this  Court 
holding  that  there  was  an  agreement  of  sale 
of  the  said  nine  lorries  to  the  first  defend- 
ant by  a  writing  dated  May  21,  1923,  the 
first  defendant  may  be  ordered  to  pay  to  the 
plaintiff  the  balance  of  the  price,  viz., 
Rs  12,000,  with  interest  thereon  at  nine  per 
cent,  per  annum  from  November  1,  1923." 
That,  in  my  opinion,  is  the  relief  which  the 
plaintiff  is  entitled  to  as  against  defendant 
No.  1.  *  *  *  * 

z,  K.  Decree  accordingly. 

LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAI/NO.  2116  OF  1925, 

May  27,  1925. 

Present: — Mr.  Justice  Zafar  Ali. 
Bawa  PARBODH  SINGH— DEFENDANT 
— APPELLANT 

versus 
Babu  BODH  RAJ  AND  OTHERS— PLAINTIFFS 

—RESPONDENTS. 

Construction     of     document—  Mortgage-deed— Corti- 
pound  interest,  when  can  be  charged. 


JUDGMENT.— The  main  contest  be- 
tween the  parties  in  this  redemption  suit 
raged  round  the   question  of  the  rate    of 
interest.    The  mortgage  is  very  old  one  and 
the  mortgagor  was   the  plaintiff's  ancestor 
Ranpat,    By  a  registered  deed  dated  the 
24th  May    1869 ,  Ranpat   mortgaged    with 
possession  his    house    situated    in  Miani, 
District  Shahpur,  for  the  sum  of  Rs.  1,100 
The  mortgagees  were  Bawa  Partap  Singh 
Pir  Ohanchal  Nath  and  Har  Sahai,    Rs.  600 
out  of   the    mortgage -money   was  due  to 
Bawa  Partap  Singh  and  the  rest,  i.e.  Rs.  500, 
to  the  other  two  mortgagees  jointly.    The 
house  was  later  on  partitioned  so  that  Bawa 
Partap  Singh  got  exclusive  possession  of  a 
portion  of  the  house  in  proportion  to  the 
amount  due  to  him.    It    is    this    portion 
which  the  plaintiffs  sue   to    redeem.    The 
rate  of  interest  stated  in  the   deed  of  mort- 
gage is  Rs,  80  per  cent,  per  annum  and  the 
defendants  plead    that  that    was  the  rate 
agreed  upon  though  they  do  not  claim  tha 
full  amount  that  would  be  due  at  that  rate* 
The  plaintiffs',  on  the  other  hand,  contend 
that  the  rate  agreed  upon  was  Rs.  80  per 
annum  for  whole  of  the  mortgage-debt  and 
that  the  words  "fi  sadi"  (per  cent)  in  the 
deed  were  subsequently  forged.  The  Courts 
below  have  come  to  the  conclusion  that  the 
rate  stipulated  upon  was  Rs.  80  per  annum 
for  the  whole  amount. 

It  is  urged  in  this  second  appeal  that  this 
finding  was  erroneous  as  no  trace  of  forgery 
being  discernable  in  the  deed  of  mortgage, 
the  rate  should  be  taken  to  be  what  is  stated 
therein.  The  parties  to  the  transaction  and 
the  scribe  and  the  marginal  witnesses 
of  the  deed  are  all  dead  ;  but  the  circum* 

stantial  evidence  which  the  Courts  below 
have    detailed    in    their  judgments  is  so 

strong  that  it  irresiatably  leads  to  the  coa« 


196 

elusion  at  which  they  have  arrived.  That 
evidence  is  briefly  as  below : — 

(l)Rs.  535  was  due  by  the  mortgagor  to 
Bawa  Partap  Singh  mortgagee  on  a  bond 
and  the  rate  of  interest  stated  in  the  bond 
was  10  annas  per  cent,  permensem.  Simi- 
larly Rs.  400  was  due  by  the  mortgagor  to 
Pir  Chanchal  Nath  on  a  bond  and  the  rate 
of  interest  payable  thereon  was  8  annas 
per  cent,  per  mensem.  These  bond  debte, 
it  appears,  were  included  in  the  mortgage 
debt  and  these  previous  dealings  show 
conclusively  that  the  mortgagor  could 
borrow  money  on  simple  bond  at  the  ordin- 
ary rate  of  8  annas  per  cent,  per  mensem, 
Jt  is,  therefore,  inconceivable  1hat  on  con- 
verting unsecured  debts  into  secured  debts 
the  creditors  demanded  and  the  debtors 
agreed  to  pay  interest  at  the  unusually  ex- 
orbitant rate  of  Rs.  80  percent,  per  annum. 
The  debtor  was  not  an  ignorant  rustic  but 
a  shrewd  Hindu  citizen  of  a  town  who  pre- 
sumably could  not  have  found  it  difficult  to 
raise  money  on  the  security  of  his  house  at 
the  ordinary  market  rate  of  interest. 

(2)  By  a  registered-deed,  dated  the  29th 
June  1871,  Pir  Chanchal  Nath  and  Har 
Sahai  sold  their  rights  as  mortgagees  to  one 
Ishar  Das  and  received  from  him  Rs.  5(JO 
principal  and  Rs.  £0  on  account  of  interest 
for  about  two  years.  At  the  rate  of  Rs.  80 
percent,  the  interest  would  have  come  to 
Rs.  800  for  two  years  and  if  the  rate  had 
been  Rs.  80  per  cent,  they  would  have  taken 
care  to  realize  interest  at  that  rate.  It  is 
not  likely  that  Pir  Ohanchal  Nath  and  Har 
Sahai  forgot  that  the  rate  was  Rs.  80  per 
cent.  This  clearly  indicates  that  to  the 
knowledge  of  these  mortgagees  the  rate 
was  Rs,  80  per  annum  on  the  whole  amount 
of  the  mortgage  debt. 

From  the  above  and  some  other  circum- 
stances, which  it  is  not  necessary  to  detail 
here,  it  follows  that  the  rate  of  interest 
agreed  upon  was  Rs.  SO  on  Rs.  1,100  per 
annum,  and  not  Rs.  80  per  cent.  Even  if  no 
forgery  was  committed  it  can  be  said  with- 
out any  hesitation  that  the  words  "fisadi" 
were  written  by  the  scribe  by  mistake,  as 
the  rate  of  interest  is  generally  given  'per 
cent.*  and  the  scribes  are  in  the  habit  of 
writing  the  words  'per  cent.'  along  with  the 
rate. 

Further  the  defendants  stated  that  the 
plaintiffs  were  liable  to  pay  compound  in- 
terest, but  there  was  no  stipulation  in  the 
deed  for  payment  of  compound  interest. 
The  mortgage  was  for  a  period  of  four 


feAt  [02  I.  0.  1926] 

years,  and  it  was  stated  in  the  deed  that  in- 
terest will  be  calculated  every  two  years. 
From  this  the  defendants  conclude  that 
compound  interest  was  to  be  charged  after 
every  two  years.  No  such  conclusion  could 
be  justified  and  the  point  is  of  no  import- 
ance because  the  defendants  do  not  demand 
payment  of  the  full  amount  of  even  simple 
interest  at  the  rate  of  Rs.  80  per  cent. 

The  third  point  relates  to  a  dispute  be- 
tween the  two  sons  of  Bawa  Partap  Singh 
inter  se.  They  are  co-defendants  in  the  case 
and  one  of  them  states  that  he  is  entitled  to 
the  whole  of  the  mortgage- money  to  the 
exclusion  of  other  by  viitue  of  the  Will  of 
Bavia  Partap  Singh.  The  learned  District 
Judge  rightly  refused  to  give  a  decision  on 
their  rights  of  inheritance  to  determine 
which  a  separate  suit  should  be  brought. 
The  appeal,  theiefore,  fails  and  1  dismiss  it 
with  costs. 

The  cross  objections  were  withdrawn  by 
the  respondents'  Counsel,  Bakhshi  Tek 
Chand,  before  the  commencement  of  the 
hearing  of  the  appeal. 

z.  K.  Appeal  dismissed. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  15  OF  1923. 

AND 
REVISION  APPLICATION  No,  41  OF  19^3. 

October  3,  1924. 
Present:— Mr.  Kennedy,  J.  0.,  and 

Mr.  Percival,  A.  J.  C. 
FATEHCHAND— APPELLANT 

versus 
PARPATI  BAI  AND  OTHERS — RESPONDENTS. 

Guardians  and  Wards  Act  (VIII  of  1890),  ss.J,],  45 
—  Death  of  minor — (auardian,  whether  ceases—  Court's 
power  to  call  for  accounts — Refusal  to  give  accounts 
• — J<*ine — Progressive  fine,  levy  of. 

On  the  death  of  a  ward  the  powers  of  the  guardian 
as  such  do  cease,  and  the  Court  may  properly  require 
him  to  deliver  in  any  accounts  in  his  possession  or 
control,  [p.  198,  col.  l.J 

When  a  ward  dies,  the  Court  should  generally  direct 
the  guardian  to  deliver  the  property  into  Court  or  to 
deliver  property  to  some  person  producing  an  heir- 
Bhip  ccrtiiicate.  In  very  rare  cases  the  latter  precaution 
might  be  dispensed  with,  but  in  that  case  the  Court 
would  otherwise  guarantee  the  interests  of  possible 
claimants,  The  possible  dangers,  therefore,  from  the 
misuse  of  the  Court's  powers  under  s.  41  (3)  of  the 
Guardians  and  Wards  Act  in  the  case  of  a  deceased 
minor  do  not  seem  to  be  very  serious  and  from 
their  existence  it  should  not  be  deduced  that  the  Legis- 
lature intended  that  on  the  ward  dying,  the  guardian 
should  be  completely  beyond  control  of  the  Court  in 
his  dealings  with  the  estate  of  the  deceased  into 
possession  of  which  he  has  come  under  the  order  of  the 
Court,  [p.  197,  col.2;  p,  198,  col.  l.j 

Where  the  guardian  refuses  to  give  full  accounts  * 


[92  1  C.  1926] 

fins  of  Rs.  25  inflicted  on  him  tinder  s.  45,  Guardians 
and  Wards  Act,  is  not  inappropriate  [p.  198,  col.  1  ] 
An  order  for  accumulative  and  :  ••  .,  •  -•'.  •  fine  can, 
however,  ba  levied  under  a.  45, '  i  ; .  i  ••>  ind  Wards 
Act,  only  in  the  case  o£  recusancy,  which  is  something 
more  than  mere  disobedience,  and  if  it  is  intended  to  use 
those  powers,  as  a  general  rule,  it  is  better  to  fix  some 
date  on  which  the  guardian  is  to  comply  with  the  order 
of  the  Court  or  demonstrate  why  he  is  unable  to  do  so 
and  that  order  may  properly  contain  the  penalty  that 
if  the  Court's  order  is  not  complied  with,  fine  will  be 
inflicted  on  the  principle  of  progression  as  laid  down 
in  the  section,  [p.  198,  col.  2  ] 

Appeal  against  an  order  of  the  District 
Judge,  Hyderabad,  (Bind),  dated  the  13th 
April  1923, 

Mr.  Dharamda8  Thawerdas,  for  the  Appel- 
lant, 

Messrs.  Tahilram  Maniram,  Dingomal 
Narainsing,  and  Khanchand  Gopaldas,  for 
the  Respondents. 

JUDGMENT. — In  this  case  the  learned 
Distr*  •'  .T  ,  ]  j£~  of  Hyderabad  had  directed 
the  .; .  ,••  •  to  file  accounts  within  one 
month  and  directed  that  if  the  accounts  were 
not  so  filed  within  one  month,  notice  was  to 
issue  under  s,  39  of  the  Guardians  and 
Wards  Act.  On  the  13th  of  April,  the 
District  Judge  being  dissatisfied  with  the 
accounts  of  the  guardian,  Fatehchand,  called 
on  the  guardian  to  render  accounts  and 
having  called  on  him  to  render  accounts 
and  the  guardian  having  failed  to  do  so, 
fined  him  Rs.  25  with  a  recurring  fine  of 
Re.  1  per  diem  until  the  order  was  complied 
with.  These  orders  have  been  objected  to 
by  Fatehchand  on  various  grounds;— 

It  appears  that  there  were  several  minors, 
one  boy  and  some  girls.  The  appointment 
oftwoguardidns  Fatehchand  and  Kalachand 
was  made  in  consequence  of  a  settlement 
and  Fatehchand  was  to  be  the  active 
guardian  whereas  Kalachand  was  the  check- 
ing guardian,  Kalachand  put  in  an  appli- 
cation to  be  relieved  of  his  duty,  but  no 
orders  have  as  yet  been  passed  on  that 
matter.  There  is  an  allegation  that  the 
family  was  actually  joint.  In  that  case,  it 
was  alleged  by  Fatehchand  that  at  any 
rate  on  the  death  of  the  minor  boy,  his 
functions  of  the  guardian  have  ceased.  This 
position  is  hotly  contested  by  Musammat 
Parpati  Bai  and  it  need  not  be  decided  at 
present, 

The  main  point  raised  by  Fatechand  in 
the  present  proceedings  is,  that  the  Court  ha3 
no  power  to  order  the  delivery  of  accounts 
or  any  property,  on  the  ground  that  the 
minor  boy  is  now  dead.  It  is  not  very 
what  position  he  imagines  himself  ^t 


FATEHCHAND  0.  PARPATI  BAT. 


197 


present  to  possess,  but  the  objection  if  it 
has  any  validity  at  all  must  be  more  to  the 
form  rather  than  to  the  substance  of  the 
order,  because  if  he  is  still  a  guardian  he 
can  be  dealt  with  under  a.  45  (b)  and  if  he 
has  ceased  to  be  guardian  he  can  be  dealt 
with  under  s.  45  (c).  Notice,  however,  has 
gone  to  him  under  s.  41(3)  which  is  only 
applicable  to  the  case,  when  the  powers  of 
the  guardian  of  property  have  ceased. 
Now  the  argument  of  Fatehchand  is  that 
the  circumstances  which  lead  to  the  ceasing 
of  the  powers  of  the  guardian  are  fully  stated 
in  s.  41  (c)  and  until  it  is  shown  that  one  of 
these  three  contingencies  has  occurred,  it 
cannot  be  said  his  power  as  8U9h  has  ceas- 
ed. But  it  would  seem  that  to  suppose 
that  after  the  death  of  a  ward  the  person 
who  had  been  a  guardian  continued  to  be 
a  guardian  would  be  preposterous.  If  there 
be  no  ward,  there  can  be  no  guardian. 
Similarly  if  there  be  no  wife,  there  can 
be  no  husband.  It  is  not  to  be  supposed  that 
the  Legislature  did  not  foresee  this  diffi- 
culty or  did  not  contemplate  so  common 
a  case  as  that  of  a  death  of  a  child.  Sec- 
tion 41  must  be  read  in  so  far  as  possible 
to  give  effect  to  what  may  be  supposed 
to  be  the  reasonable  intentions  of  the 
Legislature. 

It  cannot  ba  denied  that  it  would  be 
expedient  that  the  Court  should  continue 
to  have  control  over  the  action  of  the  ex- 
guardian.  A  guardian  in  some  sense  is  the 
Officer  of  the  Court  and  the  heirs  and 
relatives  of  the  deceased  ward  might  reason- 
ably complain  if  the  Court  would  not  assist 
them  to  ascertain  the  condition  of  the 
estate  and  tell  them  how  it  has  been  dealt 
with  during  the  time  during  which  it  had 
been  under  the  control  of  the  guardian. 
It  seems  to  us  unnecessary  to  suppose  that 
the  Legislature  wished  to  guard  against 
dangers  of  the  Court  imsljikinij  its  func- 
tions, that  is  the  fear  that  the  Court  might, 
under  colour  of  directing  the  guardian  to 
deliver  the  property  in  his  possession  under 
cl.  (3),  go  on  to  ascertain  question*  of  title 
and  settle  doubtful  claims.  It  appears  to 
us  when  a  ward  dies,  the  Court  should 
generally  direct  the  guardian  to  deliver  the 
property  into  Court  or  to  deliver  property 
to  some  person  producing  an  heirship 
certificate.  In  very  rare  cases  the  latter 
precaution  might  b*  dispensed  with,  but 
in  that  case  the  Court  would  otherwise 
guarantee  the  interests  of  possible  claimants. 
Tue  possible  dangers,  therefore,  from  the 


193 


SASHRtJ  MAL-HAR  CHARAN  DAS8  I?.  DHANPAT  RAI-DIWAN  CHAND.         [flS  I.  0. 


misuse  of  the  Court's  powers  under  s,  41  (3) 
in  the  case  of  a  deceased  minor  do  not  seem 
to  be  very  serious  and  from  their  existence 
we  are  not  to  deduce  that  the  Legislature 
intended  that  on  the  ward  dying,  the 
guardian  should  be  completely  beyond 
control  of  the  Court  in  his  dealings  with 
the  estate  of  the  deceased  into  possession 
of  which  he  has  come  under  the  order  of 
the  Court. 

Nor  is  it  necessary  to  read  s,  41  in  so  an 
inconvenient  way.  Paragraph  2  no  doubt 
gives  list  of  contingencies  on  the  happening 
of  wnich  the  powers  of  the  guardian  ceaee, 
but  they  are  not  necessarily  exhaustive  and 
even  if  they  are  exhaustive  it  is  arguable 
that  (c)  applies.  When  the  ward  owing  to 
death  ceases  to  exist  he  ceases  also  to  be 
a  minor.  If  the  Legislature  had  intended 
to  confine  the  operation  of  s.  41  (c)  to  the 
case  where  a  ward  attains  majority  nothing 
would  have  been  easier  than  to  have  said 
so.  Even  if  that  be  taken  as  a  forced 
interpretation  still  it  does  not  seem  neces- 
sarily to  follow  that  the  contingencies  given 
in  cl.  (2)  are  exhaustive.  Clause  (3),  the 
clause  with  which  we  are  at  present  con- 
cerned, says  "If  for  any  cause  the  powers 
of  a  guardian  cease"  and  it  is  hardly  dis- 
putable that  when  there  is  no  ward,  the 
power  of  a  guardian  as  guardian  must  cease. 
And  it  would  appear,  therefore,  that  on  the 
death  of  a  ward,  the  powers  of  guardian 
as  such  do  cease  and  the  Court  may  pro- 
perly require  him  to  deliver  in  any  ac- 
counts in  his  possession  or  under  control. 
So  far  we  agree  with  the  learned  District 
Judge  and  we  think  his  order  so  far  is 
proper. 

Inasmuch  as  the  guardian  refused  to 
give  full  accounts,  we  think  the  fine  of 
Rs.  25  inflicted  is  not  inappropriate. 

The  further  order  for  accumulative  and 
progressive  fine  seems  if  not  without  juris- 
diction yet  inappropriate.  The  fine  is  to  be 
levied  in  the  case  of  recusancy  which  is 
something  more  than  mere  disobedience 
and  if  it  is  intended  to  use  those  powers,  as 
a  general  rule,  it  is  better  to  fix  some  date 
on  which  the  guardian  is  to  comply  with 
the  orders  of  the  Court  or  demonstrate  why 
he  is  unable  to  do  so  and  that  order  may 
properly  contain  the  penalty  that  if  the 
Court's  order  is  not  complied  with,  fine 
will  be  inflicted  on  the  principle  of  pro-* 
gression  as  laid  down  in  the  section. 

As  it  is,  we  modify  the  order  dated  the 
13th  April  1923  in  Miscellaneous  Appeal 


No.  15  of  1923  by  upholding  the  sentence 
of  fine  of  Rs.  25,  but  by  directing  the  Dis- 
trict Judge  now  to  fix  a  date  in  which  the 
accounts  are  to  be  produced  subject  in 
default  to  such  penalty  in  the  case  of 
recusancy  as  the  District  Judge  may  think 
fit. 

Costs  of  miscellaneous  appeal  and  revi- 
sion application  to  be  borne  by  the  appel- 
lant. One  set  of  costs  allowed  in  both 
cases.  Order  modified, 

N.  H. 

LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  2731  OF  1924. 

May  21,  1925. 
Present: — Sir  Shadi  Lai,  KT.,  Chief  Justice, 

and  Mr.  Justice  Addison. 

FIRM  SAGHRU  MAL-HAR  CHARAN 

DAS8— DEFENDANT — APPELLANT 

versus 

FIRM  DHANPAT  RAI-DIWAN  CHAND 
PLAINTIFFS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  ss.  10,  /]— 
Cross-suits  between  principal  and  agent—Stay  of  one 
suit — Decision  of  other  suit — Res  judicata. 

A  principal  filed  a  suit  against  his  agent  for  the 
recovery  of  a  certain  sum  of  money  alleged  to  be 
due  to  the  former  on  certain  transactions  entered  into 
by  thp  agent  on  behalf  of  the  principal.  The  agent 
also  instituted  a  suit  against  the  principal  for  a 
certain  sum  of  money  on  similar  grounds  The  latter 
suit  was  stayed  pending  the  decision  of  the  former 
suit.  The  trial  of  the  principal's  suit  was  proceeded 
with  and  the  suit  was  dismissed,  the  dismissal  being 
confirmed  on  appeal: 

Held,  that  the  decision  of  the  Trial  Court  in  the 
principal's  suit  operated  as  res  judicata  in  the  agent's 
suit  with  regard  to  all  matters  which  were  in  dispute 
in  the  former  suit.  [p.  199,  col.  2.] 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Ludhiana,  dated  the  25th  July 
1924,  reversing  that  of  the  Sub- Judge, 
Ludhiana,  dated  the  29th  February  1924. 

Lala  Badri  Das,  R.  B.,  and  Mr.  Jai  Gopal 
Sethi,  for  the  Appellant. 

Mr.  Mukand  Lai  Puri,  for  the  Respond- 
ent. 

JUDGMENT.— The  firm  of  Saghru 
Mai  Harcharan  Das  (to  be  described  here* 
inaf  ter  as  principals),  who  carried  on  busi- 
ness at  Ludhiana  employed  Dhanpat  Rai- 
Diwan  Chand  (to  be  described  hereinafter 
as  agents)  as  their  agents  to  do  business  on 
their  behalf  at  Karachi.  The  dealings  be- 
tween the  parties  led  to  certain  disputes 
between  them,  with  the  result  that  in 
August  1913,  (he  principals  instituted  a  suit 
at  Ludhiana  for  the  recovery  of  Rs.  716-2  3 
from  the  agents.  In  September  1913  the 
agente  brought  an  action  at  Karachi' 


0, 1923J       svonaa  M-IL-HAROSARAN  DASJ  v.  DFUNPAT  RAI-DIWAN 
Against  the  principals  claiming  a  sum  of    on    transactions  detailed 
Rs,  3,562-8*0. 


The  plaint  in  the  latter  suit  was  return- 
ed by  the  Karachi  Court  with  the  direction 
that  it  should  be  presented  to  a  competent 
Court  in  the  Punjab.  Consequently  this 
suit  too  was  instituted  in  the  Ludhiana 
Court  but  was  stayed  under  s.  10  of  the  C. 
P,  C,  pending  the  decision  of  the  previously 
instituted  suit. 

The  suit  brought  by  the  principals  was, 
after  a  protracted  trial,  dismissed  by  the 
Subordinate  Judge,  and  the  appeal  preferred 
against  his  decision  was  disallowed  by  a 
Division  Bench  of  the  High  Court.  The 
action  brought  by  the  agents  was  then  taken 
up  and  the  principal  question, for  deter- 
mination was  whether  the  decision  in  the 
former  suit  operated  as  res  judicata.  In 
order  to  determine  this  question  it  is 
necessary  to  examine  care  fully  the  pleadings 
and  the  issues  in  that  suit  and  the  decision 
arrived  at  by  the  Courts. 

Now,  the  claim  in  the  former  suit  related 
to  various  transactions  set  out  in  Appendices 
A,  B,  0  and  D  attached  to  the  plaint  in  that 
case.  The  principals  claimed,  inter  ah'a, 
Rs.  652-13-0  on  account  of  the  balance  due 
to  them  on  transactions  detailed  in  Ap- 
pendices A  and  B,  Rs,  2,300  the  total  of  the 
two  items  advanced  by  them  in  cash  to  the 
agents  and  Rs.  900  5  0  in  respect  of  a  wheat 
transaction  mentioned  in  Appendix  D.  They 
also  urged  that  the  transactions  set  out  in 
Appendix  C  were  not  binding  upon  them, 
and  that  they  were  wrongly  debited  with 
the  losses  on  those  transactions. 

The  agents  while  admitting  the  receipt 
of  Rs,  2,300  stated  that  only  Rs.  651-96 
represented  the  balance  due  by  them  on 
items  contained  in  Appendices  A  and  Band 
repudiated  the  rest  of  the  claim.  They 
pleaded  that  the  transactions  in  Appendix 
C  were  binding  on  the  principals,  and 
that  they  resulted  in  a  loss  amounting  to 
Rs.  6,209-13-0.  They  denied  their  liability 
for  the  payment  of  any  sum  of  money  to  the 
principals,  and  asserted  that  they  were  en- 
titled to  recover  from  the  latter  Rs.  3,562  8  0 
for  which  they  had  instituted  a  suit 
which  had  been  stayed  under  s.  10  of  the 
0.  P.  0. 

The  Trial  Judge  decided  that  though  the 
sums  Rs.  651-9-6  on  transactions  recorded 
in  Appendices  A  and  B,  and  Rs.  2,300  on 
account  of  advances  were  due  by  the  agents 
to  the  principals,  those  items  were  wiped 
by  the  losses  suffered  by  the  principals 


in  Appendix  C. 

These  losses,  which  were  found  to  amount 
to  Rs.  6,20 J'i3-0  left  a  balance  in  favourof 
the  agents. 

Now,  we  may  say  a$  once  that  there  was 
a  clear  finding  by  the  Subordinate  Judge 
that  Rs.  t)51-y-6  were  due  to  the  principals 
on  transactions  mentioned  in  Appendices 
A  and  B  and  this  finding  was  not  impeach- 
ed by  them  in  their  appeal  to  the  High 
Court.  They  cannot  now  be  allowed  to 
raise  the  question  that  they  were  entitled 
to  a  larger  sum  on  those  transactions.  The 
main  dispute  relates  to  the  decision  on  the 
issues  relating  to  the  transactions  in  Ap- 
pendix C  and  on  this  issue  the  Trial  Court 
decided  not  only  that  the  principals  were 
bound  by  those  transactions  but  also  that 
the  losses  incurred  on  their  behalf  by  the 
agents  amounted  to  Rs.  6,209-13-0.  It  is  to 
be  observed  that  but  for  these  losses  the 
principals  would  have  been  entitled  to  a 
decree  for  a  large  sum  of  money,  and  that 
in  order  to  wipe  out  the  amounts  due  to 
them  on  other  transactions  it  was  necessary 
to  determine  the  amount  payable  by  them 
on  account  of  the  aforesaid  losses.  It  is 
true  that  in  their  appeal  to  the  High  Court 
they  did  not  challenge  the  finding  of  the 
Trial  Judge  on  the  amount  of  the  losses 
but  confined  themselves  to  the  question 
whether  they  were  bound  by  the  transac- 
tions. A  perusal  of  the  judgment  of  the 
High  Court,  however,  shows  that  the  learned 
Judges  after  disposing  of  all  the  points 
urged  by  the  appellants,  confirmed  the 
decree  passed  by  the  Trial  Court  and  dis- 
missed the  appeal  in  toto.  There  can,  there- 
fore, be  no  doubt  that  the  decision  of  the 
Trial  Court  confirmed  as  it  was  by  the  High 
Court,  operates  as  res  judicata  and  that  the 
principals  are  now  precluded  from  re-agitat- 
ing the  question  of  the  amount  of  the  losses 
incurred  on  their  behalf  by  the  agents. 

Mr."  Badri  Das  for  the  appellants  also 
impeaches  the  correctness  of  the  order  of 
the  Karachi  Court  returning  the  plaint  for 
presentation  to  a  Court  of  competent  juris- 
diction in  the  Punjab,  but  that  order  has 
now  become  final  and  cannotbe  challenged 
by  either  of  the  parties. 

On  the  question  pf  future  interest  on  the 
amount  due  to  the  agents  we  find  that  they 
claimed  interest  on  the  sum  which  was 
alleged  to  be  due  to  them  at  the  date  of 
the  institution  of  the  suit,  and  there  is  no 
reason  why  they  should  not  be 
terest  at  the  usual  rate.  . 


200 


D.  ft,  K,  SAKLAT  V.  BELLA. 


[92  I.  Q.  1926] 


The  result  is  that  we  dismiss  the  appeals 
preferred  by  Sughru  Mal-Harcharn  Das 
with  costs,  a::d  accepting  the  appeal  preferr- 
ed by  Dhanpafc  Rai-Diwan  Chand,  we  grant 
them  a  decree  for  Rs.  3,549-2-6  with  interest 
at  6  percent,  on  that  sum  from  the  date  of 
the  institution  of  the  suit  up  to  the  date  of 
payment.  The  defendants  must  pay  the 
costs  on  that  sum  to  the  appellants  'in  all 
the  Courts. 

2.  K.  Appeal  dismissed. 

PRIVY  COUNCIL, 

APPEAL  FIIOM  THB  LOWER  BURMA  CHIEF  COURT. 

October  22,  Iy25. 
Present  .-—Lord  Phillimore,  Lord  Blanes- 

Burgh  and  Sir  John  JMge. 

P,  R,  K,  SAKLAT  AND  OTHERS— PLAINTIFFS 

—APPELLANTS 

versus 
BELLA — DEFENDANT— RESPONDENT. 

Trust — Religious  endowment — Person  not  entitled  to 
benefit  permitted  to  share— Trustees,  duty  of — 
Zoroastrian  Temple  at  Rangoon — Non-Parsi  Zoroas- 
trian, whether  entitled  to  benefit — Injunction 

The  Zoroastrian  religion  not  only  permits  but 
enjoins  the  conversion  to  that  religion  of  persons  born 
in  other  religions  and  of  non-Zoroastrian  parents, 
[p.  202,  col.  2.J 

In  spite  of  such  permission,  however,  the  Zoroas- 
trians,  ever  since  their  advent  into  India,  have  never 
attempted  to  convert  anyone  into  their  religion. 
[ibid  ] 

The  benefits  of  the  Zoroastrian  Temple  at  Kangoon 
are  confined  to  persons  who  possess  the  double 
qualification  of  being  Zoroastrians  and  racial  Parsis, 
and  Zoroastrians,  who  are  not  racial  Parsis,  have 
no  right  of  entering  into  the  Temple  and  may,  there- 
fore, be  excluded  or  extruded  from  the  Temple-  by  the 
Trustees  [p.  204,  cols.  1  &  2.] 

But  it  does  not  follow  that  the  trustees  are  bound 
to  exclude  such  non-Parsi  Zoroastrians  from  the 
Temple.  Still  less  does  it  follow  that  in  an  action  to 
which  the  trustees  are  not  parties,  and  in  which,  there- 
fore, no  indirect  remedy  can  be  claimed,  a  direct  claim 
by  the  Parsi  Zoroastrians  c  •.  m  •.  .:  ii-  •:  i  against  a 
non-Parsi  Zoroastrian  who  •••  •  ..^^  •.  •  ,,emple,  as 
if  for  a-  tort  comitted  by  such  person,  [p.  204,  col  2  ] 

Fora  trespass  upon  temple  land,  the  only  person 
who  can  bring  an  action  for  injunction  is  the  person 
in  possession  of  the  land,  that  is,  the  trustee.  It  may 
be  that  in  India  it  may  be  convenient  to  allow  such  a 
suit  by  certain  worshippers  against  others.  But  if  so, 
it  must,  at  any  rate,  be  established  that  the  juxt- 
aposition, of  the  two  sets  ^of  persons  is  so  repugnant 
to  their  }  ii:.:1  •  f  •;  ::i  i  .*  nt  the  entrance  of  one  set 
into  the  '\\  ;•  | '  •-1:.1-  •:'<• '' '  departure  of  the  other,  so' 
that  it  is,  as  it  were,  trespass  tb  the  person,  [p  206, 
col.  1.] 

When  property  is  set  apart  ^for  public  or  charitable 
uses,  it  will  be  a  malversation  to  apply  any  of  the 
funas  for  persons  who  are  not  objects  of  thd  trust. 
Those  who  are  objects  of  the  trust  must  have  all  the  ' 
benefits  they  require ;  and  if  tltere  is  a  surplus,  it 
must  be  left  to  the  Courts  to  make  a  cypres  applica- 
tion of  it.  But  when  the  subject-matter  of  such  a 
trust  or  charity  is  the  rendering  of  some  convenience 


or  service  of  such  a  nature  that  it  will  not  hurt  the 
lawful  recipients  if  others  share  with  them,  the 
trustees  are  not  bound  to  exclude  persons  who  have 
no  legal  title  to  share.  They  may  do  so  ;  they  may- 
treat  all  such  persons  as  trespassers  and  say .  Sic 
volo  sic  jubeo,  stet  pro  ratione  voluntas.  But  if  they 
choose  to  admit  to  the  benefit  of  some  park  or  garden 
established  for  a  particular  district  some  persons  from 
over  the  border  or  to  admit  to  a  public  library 
destined  for  a  particular  Municipality  persons  from 
outside,  or  admit  to  the  hearing  of  a  lecture  by  a 
University  Professor  persons  not  members  of  the 
University,  this  of  itself  furnishes  no  ground  of  com- 
plaint. If  the  numbers  admitted  are  too  large  or  the 
persons  are  disorderly  or  unpleasant  in  their  habits 
or  in  any  way  substantially  interfere  with  the  con- 
venience or  benefit  of  those  for  whom  the  endowment 
was  created,  the  trustees  may  be  required  to  exclude 
them.  But  the^mere  claim  of  A  that  B  shall  not  share 
in  such  a  benefit  because  B  is  not  within  the  terms 
of  the  foundation  is  not  one  that  Courts  would  en- 
courage, [p.  204,  col.  2;  205,  col.  1  ] 

Appeal  from  a  decision  of  the  Chief  Court, 
Lower  Burma. 

Mr.  A.  M.  Dunne,  K.  C.,  Sir  G.  R. 
Lowndes,  K.  CT.,  and  Mr.  E.  B.  Raikes,  for 
the  Appellants, 

Messrs.  W.  H.  Upjohn,  K.  C.and  Warwick 
Draper,  for  the  Respondent. 

JUDGMENT. 

Lord  Phillimore.— The  circumstances 
of  this  case  are  as  follows: — 

Sometime  in  159 $  a  Goanese  Christian 
named  Jones  with  his  wife  arrived  in  Ran- 
goon. They  were  in  humble  circumstances, 
and  the  wife  applied  for  assistance  to  a  Parsi 
of  good  position  at  Rangoon,  Bomanji 
Cowasji,  stating  that  she  too  was  a  Parsi. 
He  befriended  her  till  he  went  to  England 
in  1^00,  and  then  asked  his  brother  Sapurji 
Cawasji  to  look  after  her  and  the  -  child  to 
which  she  had  just  given  birth,  the  respond- 
ent Bella.  The  father  died,  and  when  her 
mother  died  shortly  afterwards,  Sapurji, 
who  was  a  defendant  in  this  auit,  but  died 
pending  the  appeal,  took  Bella  into  his  own 
house  and  he  and  his  wife  treated  her  as 
their  own  child. 

When  Bella  was  nearly  14,  it  was  desired 
that  the  initiation  ceremony  into,  the  Zoro* 
astrian  religion  called  Navjot  ihould  be 
performed  for  her,  but  the  local  Head  Priest 
at  Rangoon^  refused',  chiefly  becaUse—  as  it 
appears  from  his  evidence — he  thought  it 
Would  be  unpopular  with  the  Parsi  com- 
munity. Advantage  was  then  taken  of1  the 
temporary  presence  of  some  other  priest, 
who  performed  the  ceremony;  and  after 
that  invitations  were  sent  by  the  Head 
Priest  to  Bella  to  come  with  Sapurji  and 
his  wife  to  the  temple  oa  festival  days. 
Three  such  invitations  were  sent,  the 


D.  R.  K.  SAKLAT  t>.  BELLA. 


[62  I.  0. 1926] 

Priest  said,  with  the  expectations  that  they 
would  not  be  accepted,  but  on  the  third 
occasion,  being  21st  March  1915,  Sapurji 
brought  her  and  put  her  within  sacred  pre- 
cincts facing  the  sacred  fire,  and  in  such  a 
position  that  she  went  through  all  the  cere- 
monies like  other  worshippers. 

This  proceedings  gave  great  offence  to  a 
number  of  members  of  the  Parsi  communi- 
ty in  Rangoon,  and  on  the  31st  March,  this 
suit  was  brought  by  three  members  of  the 
Parsi  community,  who  stated  that  they 
brought  it  not  only  on  their  own  behalf 
but  on  behalf  of  a  large  number  of 
members  of  the  Parsi  community  at 
Rangoon,  against  Bella  and  against  Sa- 
purji, stating  that  the  Temple  was  held 
on  trust  for  the  free  and  unrestricted  use 
of  the  Parsi  inhabitants  in  Rangoon  pro- 
fessing the  Zoroastrian faith,  further  stat- 
ing that  it  was  alleged  that  the  mother 
of  Bella  was  a  Parsi,  and  that  Bella  had 
been  validly  converted  or  initiated  into  the 
Zoroastrian  religion,  but  denying  that  this 
was  so  or  indeed  could  be  so,  and  averring 
that  the  defendants  had  by  their  acts  unot 
only  wounded  the  religious  feelings  enter- 
tained by  religiously  inclined  Parsis,  but 
also  caused  the  desecration  of  the  said 
sacred  Temple  ". 

In  another  paragraph  of  the  plaint,  they 
stated  that  only  members  of  the  Parsi  com- 
munity professing  the  Zoroastrian  religion 
were  entitled  to  the  use  of  the  Temple,  to 
the  access  of  the  sacred  precincts  and  to 
attend,  witness  or  take  part  in  any  religious 
ceremonies  held  therein,  and  that  it  was 
never  the  intention  of  the  Parsi  community 
that  the  children  of  non-Parsi  fathers  should 
be  allowed  the  use  of  the  Temple.  They 
further  said  that  even  assuming  that  Bella 
could  be  duly  admitted  into  the  Zoroastrian 
religion,  and  assuming  that  her  mother 
was  a  Parsi,  even  then  she  could  not  be 
considered  a  Parsi  or  a  member  of  the  Parsi 
population.  They  prayed  for  a  declaration 
that  Bella  was  not  entitled  to  use  the 
Temple  or  to  attend  or  to  participate  ia  any 
of  the  religious  ceremonies  performed 
therein  and  for  injunctions  to  restrain  her 
ffcrai  entering  the  Tfemple  and-  Sapurji  from 
taking  her  there. 

• '  Sapurji',  in  his  own  name  and;  as  guardian 
for  Bella,  put  in  their  written  statement. 
In  this  it  was  contended  that  the  plaint 
disclosed  no  cause  of  action,  that  the  defend- 
ant Bella  was  entitled  to  attend  the  Temple 
and  the  ceremonies  and  wised  QO  des- 


201 

cretion  by  her  presence  and  it  was  stated 
that  her  mother  was  a  Parsi  that  she  had 
been  brought  up  from  early  infancy  as  a 
Parsi  and  in  the  Zoroastrain  faith  and  that 
she  came  within  the  terms  of  the  trust  of 
the  Temple. 

The  following  issues  were  then  settled  : 
"1.    Whether    the  plaint  discloses    any 
cause  of  action  ? 

2.  Whether  this  suit  is  maintainable  ? 

3.  Who  are  entitled  to  the  benefit  of  the 
Fire  Temple  Trust  ? 

4.  Is  the  first  defendant  the  daughter  of 
a  Parsi  mother. 

5.  Is  it  possible  for  the  first  defendant, 
being  a  daughter  of  a  non-Parsi  father  to 
be  initiated  (a)  into  the   Zoroastarin  Reli- 
gion and  (b)  into  the  Parsi  Community  ?" 

"6.  If  it  was  possible,  whether  the 
ceremonies  adopted  for  the  purpose  were 
defective  (the  second  defendant  to  give 
particulars  of  the  ceremonies  performed  at 
the  initiation  of  the  first  defendant  within 
one  week,  and  the  plaintiffs  to  state  within 
one  week  thereafter  whether,  and  if  so,  in 
what  respects  they  contend  that  these  cere- 
monies were  inefficacious")  : 
and  the  case  was  set  down  for  a  preliminary 
hearing  on  the  first  and  second  issues. 

The  Judge  decided  these  points  in  favour 
of  the  plaintiffs  ;  and  thereupon  some  oral 
evidence  was  taken  before  the  Judge  at 
Rangoon,  and  a  mass  of  evidence  covering 
664  pages  of  the  record  was  taken  on  com- 
mission at  Bombay. 

It  appears  that  this  was  not  the  first 
occasion  in  modern  times  in  which  the 
question  of  the  admissibility  of  a  person  who 
was  not  a  racial  Parsi,  but  who  had  become 
a  convert  to  the  Zoroastrian  religion,  to  par- 
ticipate in  the  religious  services  and  enter 
the  temples  of  the  Parsis  had  arisen. 

In  1903  a  French  woman  had  declared 
that  she  had  become  a  convert  to  the  Zoroas* 
trian"  religion  and  had  married  a  Parsi 
gentleman  of  position  at  Bombay.  Her 
claim  to  participate  in  religmus-  worship 
had  given  rise  to  much  excitement  in  the 
Parsi  community,  and  seven  Parsis,  one  of 
whom  was  the  French  woman's^  husband, 
had  brought  a  suit  in  the  High  Court  of 
Bombay  against  the  trustees  of  the  Parsi 
endowments,  first  making  a  general  case 
of  some  misfeasances  requiring  the  interven- 
tion of  the  Court,  and,  secondly,  claiming 
a  declaration  that  the  trust  deeds  ought  to 
be  construed  as  admitting  to  their  benefits 


50:! 


any    persons  professing    the 
religion  whether  a  racial  Parsi  or  not. 

After  a  prolonged  litigation,  this  suit; 
except  in  so  far  as  it  prayed  for  a  correction 
of  the  general  misfeasances,  was  dismissed; 
and  the  Judges,  for  reasons  which  will 
have  to  be  more  minutely  entered  into,  held 
that  the  various  endowments  were  limited 
to  the  use  of  people  who  as  well  as  being 
Zoroastrian  were  also  racial  Parsis.  Bat 
the  controversy  had  not  been  forgotten,  and 
its  echoes  are  to  be  sheard  in  the  evidence 
given  on  commission  in  the  present  case. 

Young,  J.,  in  the  preliminary  judg- 
ment given  in  the  present  case,  held  that 
the  plaintiffs  could  not  sue  for  trespass  on 
land  or  in  the  Temple,  but  that  they  might 
have  a  third  cause  of  action  which  he 
described  as  an  interference  with  their  right 
to  .exclusive  worship.  He  thought  that 
they  had  sufficiently  alleged  this  right  and 
its  infringement,  that  the  right  was  one 
which  had  been  often  upheld  by  the  Courts, 
and  that  the  suit  could  bo  brought  without 
joining  the  trustee  or  without  obtaining  the 
consent  of  the  Advocate-General.  When 
he  came  to  his  later  decision  upon  the  whole 
case,  he  described  thennjury  as  "an  injury 
to  the  plaintiffs*  individual  right  to  worship 
undisturbed  by  the  intrusion  of  a  person 
not  belonging  to  their  faith,11  and  applying 
his  mind  to  the  fifth  and  sixth  issues,  he 
held  that  Bella  could  be  initiated  into  the 
Zoroastrian  religion  and  into  the  Parsi 
community;  that  the  ceremonies  adopted 
for  the  purpose  were  sufficient,  and  that, 
therefore,  there  was  no  intrusion  of  a  person 
not  belonging  to  the  plaintiffs'  faith,  and  it 
became  immaterial  to  decide  issues  NOB.  3 
and  4.  Accordingly  he  dismissed  the  suit. 

When  the  matter  came  before  the  Chief 
Court,  on  appeal,  the  Judges,  though  ap- 
parently they  heard  one  continuous  argu- 
ment, gave  two  judgments :  the  first  in 
respect  of  the  preliminary  issues.  In -this 
they  confirmed  the  actual  decision  of 
Young,  J.,  but  enlarged  the  plaintiffs1  cause 
of  action,  saying  that  they  might  treat  it 
as  an  injury  to  themselves,  that  Bella,  even 
though  she  were  a  Zoroastrian,  yet  not 
"being  a  Parsi,  came  to  the  Temple  worship. 

This  made  it  necessary  for  the  Judges 
in  the  Chief  Court  to  determine  the  third 
issue,  viz.,  who  are  entitled  to  the  benefits 
of  the  Fire  Temple  Trust  ;  and  they  held 
that  it  was  a  trust  for  a  religion  and  not 
for  a  race.  They  then  held  in  agreement 
-\vith  Young,  J.,  that  Bella  could  be  and 


D.  P,  K,  8AKLAT  V.  BELLA.  [92  I.  0.  1926] 

Zoroastrian  was  converted  or  initiated  into  the  Zproaa- 
trian  religion,  and,  therefore,  they  concurred 
with  him  in  dismissing  the  suit.  * 

The  Judges  in  the  Chief  Court  took  the 
view  that  fourth  issue  might  also  have  been 
decided  in  favour  of  Bella,  i  e.y  that  her 
mother  was  a  Parsi,  but  that  this  fact  was 
unimportant,  except  as  leading  up  to  her 
conversion  or  initiation.  Their  Lordships 
agree  with  this.  In  their  view  it  is  settled 
that  as  regards  the  racial  claim,  maternity  is 
of  no  importance. 

TKe  appeal  to  their  Lordships1  Board  has 
raised  among  other  questions  the  actuality 
and  validity  of  Bella's  conversion  and 
initiation  ;  but  on  this  point  their  Lordships 
see  no  reason  for  differing  from  the  judg- 
ment of  the  Chief  Court. 

In  the  great  controversy  in  the  Bombay 
case,  Dinsaiv  Manockji  Petit  v.  Jamsetji 
Jeejebhoy  (1)  the  two  learned  Judges  (one 
of  whom  wa^  himself  a  Parsi),  came  to  the 
following  conclusions  thus  expressed  by 
the  Parsi  Judge,  Davar,  J.,  :  — 

"  1.  That  the  Zoroastrian  religion  not 
only  permits  but  enjoins  the  conversion  of 
a  person  born  in  another  religion  and  of 
non-Zoroastrian  parents. 

"  2.  That  although  such  conversion  was 
permissible,  the  Zoroastrians,  ever  since 
their  advent  into  India  1200  years  ago,  have 
never  attempted  to  convert  anyone  into 
their  religion. 

"  3.  That  there  is  not  a  single  instance 
proved  before  the  Court  of  a  person  born 
of  both  non-Zoroastrian  parents  ever  having 
been  admitted  into  the  Zoroastrian  religion 
professed  by  the  Parsis  in  India.11 

It  is  true  that  as  regards  the  quantum  of 
the  necessary  ceremonial  on  initiation, 
Davar,  J.,  expressed  an  opinion  that  a  piece 
of  ritual  called  Burushnun  was  an  essential 
part;  but  in  this  matter  he  was  travelling 
outside  anything  necessary  for  the  o.ase 
before  him;  and  their  Lordships  do  not 
find  that  Beaman,  J.,  the  other  Judge,  con- 
curred with  him  as  to  this  and  they  think 
that  the  evidence  given  in  the  present  case 
warranted  the  decision  to  which  the  Chief 
Court  came  that  this  additional  ceremonial 
was  not  necessary. 

It  follows,  therefore,  that  the  points  which 
their  Lordships  have  now  to  determine  are 
whether  the  trusts  of  the  Temple  are  for 
the  benefit  of  all  persons  professing  the 
Zoroastrian  religion  or  limited  to  those  who, 
33  B,  509;  11  Bpm.  L,  K.  85;  & 


(1)  2Ind.  Gas.  701; 
M.  L  T  301. 


I.  0.  1926J 


D.  H,  K.  SAKUT  V,  BBLU, 


203 


professing  that  religion,  are  also  racial 
Parsis  in*  the  sense  in  which  that  word  is 
understood  in  the  Parsi  community;  and, 
secondly,  whether  if  Bella,  not  being  a 
racial  Parsi,  is  not  a  person  within  the 
benefits  of  the  Temple  Trust,  this  fact  gives 
the  plaintiffs  any  right  of  direct  action 
against  her  and  against  her  guardian. 

The  contention  on  behalf  of  the  plaintiffs 
was  the  same  as  that  of  the  contention  of 
the  defendants  in  the  Bombay  case,  namly, 
that  all  these  trusts  were  intended  for  Parsis 
in  the  limited  sense,  i.e.  :— 

"First.—  The  descendants  of  the  original 
emigrants  into  India  from  Persia  who  pro- 
fess the  Zoroastrian  religion, 

"  Secondly.  —  The  descendants  of  the 
Zoroastrians  in  Persia  who  were  not  amongst 
the  original  emigrants,  but  who  are  of  the 
game  stock  and  have  since  that  date,  from 
time  to  time,  come  to  India  and  have 
settled  here,  either  permanently  or  tempo- 
rarily, and  who  pioJees  the  Zoroastrian 


11  Tin:  i!\  .—The  children  of  a  Parsi  father 
by  an  alien  mother,  if  such  children  are 
admitted  into  the  religion  of  their  fathers 
and  profess  the  Zoroastrian  religion." 

Now  the  origin  of  the  Temple,  the  right 
to  worship  at  which  is  in  dispute  in  the 
present  case,  is  as  follows  :  — 

On  the  24th  November  1863  the  Deputy- 
Commissioner  at  Rangoon,  on  behalf  of 
Her  Majesty's  Government,  .;  .  '  :  to 
Bajunji  Cowasji  and  Sapurji  i.  •„  :  [  ircel 
of  land  in  the  town  of  Rangoon  of  a  certain 
size  "upon  trust  to  build  and  maintain  upon 
the  said  parcel  of  land  a  temple  for  the 
use  of  Parsi  population". 

It  was  provided  that  the  Deputy  Commis- 
sioner might  nominate  new  trustees,  and 
that  if  a  Temple  was  not  erected  within  a 
year,  he  might  revoke  the  grant. 

On  the  Hth  August,  1882—  probably  be- 
cause there  had  been  delay  in  building  the 
Temple  —  a  re  grant  was  made  to  new 
trustees  upon  trust  for  the  same  intents  and 
purposes  as  the  old  grant,  with  like  powers 
to  appoint  new  trustees  and  a  similar 
power  of  revocation  if  no  temple  was  built 
within  a  year. 

Previously  on  the  llth  January  1859  the 
then  Deputy  Commissioner  had  granted  to 
two  Parsi  gentlemen  another  piece  of  land 
upon  trust  to  maintain  it  "  as  a  cemetery 
and  to  the  free  use  of  persons  of  the  'Parsi 
denomination11.  There  was  a  similar  power 
given  to  the  Deputy  Commissioner  to  ap- 


point  new  trustees  and  a  power  of  revoca- 
tion in  case  the  land  was  applied  to  other 
uses.  This  grant  was  again  renewed  also 
on  the  14th  August  1882. 

Some  disputes  having  arisen  as  to  the 
Temple,  a  suit  was  brought  to  have  a  new 
trustee  appointed,  and  a  scheme  of  manage- 
ment framed  ;  and  on  the  20th  March  1889 
the  Recorder  appointed  Bajunji  Cowasji 
sole  trustee  and  ordered  a  scheme  *to  be 
framed. 

About  the  same  time,  a  similar  suit  had 
been  brought  in  respect  of  the  burial 
ground,  and  by  an  order  of  the  same  date 
the  same  person  was  appointed  trustee  and 
a  similar  order  to  frame  a  scheme  was  made. 
The  scheme  in  respect  of  the  Temple  gave 
the  trustee  charge  of  the  Temple  and  its 
appurtenances  with  duty  to  manage  and 
improve  as  funds  permitted  and  power  to 
build  a  range  of  shops  on  part  of  the  trust 
lands,  borrowing  money  for  the  purpose. 
After  re-payment  of  monies  borrowed  the 
rest  was  to  be  applied  for  the  current  ex- 
penses of  the  Fire  Temple  and  the  Parsi 
Burial  Ground.  In  this  way  and  to  this 
extent  the  two  properties  were  brought 
together. 

When  the  scheme  for  the  burial  ground 
wag  to  be  framed,  there  was  a  serious  dis- 
pute with  regard  to  children  of  Parsi  fathers 
who  died  without  having  gone  through  the 
ceremonies  of  initiation,  and  eventually  the 
scheme  was  framed  in  the  following 
words  : — 

'•  1.  The  Burial  ground  shall  be  used  for 
burying  persons  who  shall  at  his  or  her 
death  be  actually  professing  the  Zoroas- 
trian religion  and  no  other. 

"Explanation. — No  one  shall  be  taken  to 
be  actually  professing  the  Zoroastrian  re- 
ligion who  has  not  been  duly  invested  with 
the  Sudra  and  Kusti,  in  accordance  with 
the  rites  prescribed  by  that  religion,  pro- 
vided, nevertheless,  that  children  born  of 
fathers  following  the  Zoroaslrian  religion, 
and  brought  up  in  that  faith,  and  dying 
before  the  age  of  14  years  and  three  months, 
without  having  been  invested  with  the 
Sudra  and  Kusti,  may  be  taken  to  be  actual- 
ly professing  the  Zoroastrian  religion,  but 
children  dying  after  having  'attained  that 
age  without  having  been  invested  with  the 
Sudra  and  Kusti  shall  not  be  taken  to  have 
professed  the  Zoroastrian  religion  unless 
his  or  her  investiture  was  prevented  by 
unforeseen  and  unavoidable  circumstances." 

It  is  suggested  for  th^  defendants  that 


204 


D.  R.  K.  SAKLAT  V.  BELLA. 


this  document  shows  that  the  stress  of  the 
matter  was  laid  upon  the  religion  and  not 
upon  the  race. 

One  other  document  must  be  mentioned. 
Apparently  it  took  a  long  time  before  the 
Temple  or  at  any  rate  the  present  Temple 
was  built,  and  on  the  20th  August  1904, 
Bajunji  Cowasji  executed  a  deed  of  declara- 
tion of  trust  reciting  that  he  and  his  brother 
had  built  at  their  charge  a  fire  temple 
upon  the  trust  lands  so  that  the  same 
might  form  part  of  the  said  trusts  and 
be  for  the  use  of  the  Parsi  inhabitants  of 
Rangoon,  and  purporting  to  declare  for 
himself  and  his  successors-in-office  that 
he  held  the  fire  temple  "  for  the  use  of  the 
Parsi  inhabitants  of  Rangoon  free  and  un- 
restricted but  subject  notwithstanding  to 
the  tenets  of  the  pure  Zoroastrian  religion 
and  to  the  scheme  prescribed  by  the  Court/' 

The  defendants'  as  their  Lordships'  bar 
contended  that  this  was  an  attempt  to  alter 
the  trust  and  as  such  should  be  rejected, 
but  in  their  written  statement  they  accept- 
ed it  as  a  valid  document.  So  far  as  it 
goes,  it  rather  makes  in  the  plaintiff's 
favour,  but  their  Lordships  are  not  disposed 
to  attach  grave  importance  to  it. 

The  Chief  Court— as  already  stated — 
considered  that  the  effect  of  these  documents 
was  to  impose  a  trust  for  the  benefit  of 
persons  professing  the  Zoroastrian  religion 
and  no  others. 

Their  Lordships  agree  with  the  latter 
part  of  this  proposition.  Parsis  who  cease 
to  be  Zoroastrians  have,  in  their  Lordships' 
view,  no  claim.  But  upon  the  whole  and 
after  much  consideration,  they  think  that 
the  benefits  are  confined  to  persons  who 
possess  the  double  qualification  of  Zoroas- 
trians and  racial  Parsis. 

The  judgment  in  the  Bombay  case  travel- 
led over  much  ground — indeed,  in  their 
Lordships'  opinion,  much  unnecessary 
ground — but  both  Judges  came  to  the  con- 
clusion that  the  various  trusts  in  that  case 
must  be  construed  as  being  confined  to 
persons  who  were  of  the  Zoroastrian 
religion  and  racial  Parsis.  There  were 
several  trusts,  and  the  expressions  in  the 
deeds  were  different ;  but  the  word  Parsi 
never  appeared  in  them,  and  the  word 
Zoroastrian  or  some  equivalent  religious 
word  was  used.  Sometimes  the  trusts  were 
for  the  members  of  the  Zoroastrian  com- 
munity of  Bombay ;  other  phrases  were 
similar.  Nevertheless,  both  Judges  came 


[92  I.  0. 1926] 

to  the  conclusion  that  they  must  be  read 
as  has  been  already  stated, 
Davar,  J.  Thus  expressad  himself : — 
"A  Juddin    (that    is    a    Gentile)   may 
become  a  Zoroastrian,    but    how  he  ever 
could  possibly  become  a  member  of  'the 
Holy    Zoroastrian   Anjuman    of   Bombay' 
or  be  one  of  *  the  members  of  the  Zoroastri- 
an Community  of  Bombay '  or  become  one 
of  the   'Anjumau  of  the  Mazdiasni  faith/ 
passes  my  comprehension.    A  Juddin  con- 
verted to  Zoroastrianism  had  never  come 
into  existence.    Such  a  person  could    not 
possibly  have  been  within  the  contempla- 
tion of  the  donors  and  founders  :  the    pos- 
sibility of  such  a  being  coming  into  existence 
would   be  so   new    and  novel    that  if  the 
donor   ever  conceived    such  an    i4ea  and 
intended  to  include  him  in  his  benefaction, 
he  would  certainly  designate  him  separately 
and  specially  and  not  include    him    in  the 
general  description  of  the  community  of  his 
then    existing     co-religionists    and    their 
descendants." 
Beaman,  J,,  said  : — 

"  The  question  is  not  whether  the  Zoro- 
asfcriari  religion  permits  conversion,  but 
whether,  when  these  trusts  were  founded, 
the  Founders  contemplated  and  intended 
that  converts  should  be  admitted  to  partici- 
pate in  them." 

In  their  Lordships*  view  the  same  line 
of  reasoning  applies  to  the  present  case. 
The  Parsi  community  had  grownup  to  be 
such  a  distinct  body,  and  admissions  into 
it  from  outside  had  been  so  very  rare,  that 
at  the  time  when  these  grants  at  Rangoon 
were  made,  the  Government  must  have 
intended  that  the  Temple  should  be  for  the 
benefit  of  professing  members  of  the  Parsi 
community,  i.e.,  racial  Parsis  or  people 
deemed  after  a  long  lapse  of  ages  to  be 
racial  Parsis, 

But  this  does  not  exhaust  the  matters  to 
be  determined  on  the  present  appeal.  It 
determines  that  the  respondent  Bella  has 
no  right  of  entering  into  the  Temple  and 
may,  therefore,  be  excluded  or  extruded 
from  the  Temple  by  the  Trustees.  They 
can  treat  her  as  a  trespasser.  But  it  does 
nofc  follow  thafc  they  are  bound  so  to  treat 
her.  Still  less  does  it  follow  that  in  an 
action  to  which  the  trustees  are  not  parties, 
and  in  which,  therefore,  no  indirect  remedy' 
can  be  obtained,  a  direct  claim  can  be 
supported  as  if  for  a  tort  committed  by 
Bella  or  her  guardian. 
When  property  is.set  apart  for  public  or 


[9§L  0.  1S26] 


t).  R.   K.  SAItLlf  V.  BELLA. 


SOS 


charitable  uses,  it  will  be  a  malversation 
to  apply  any  of  the  funds  for  persons  who 
are  not  objects  of  the  trust.  Those  who 
are  objects  of  the  trust  must  have  all  the 
benefits  they  require ;  and  if  there  is  a 
surplus,  it  must  be  left  to  the  Courts  to 
make  a  cypres  application  of  it.  But  when 
the  subject-matter  of  such  a  trust  or 
charity  is  the  rendering  of  some'convenience 
or  service  of  such  a  nature  that  it  will 
not  hurt  the  lawful  recipients  if  others 
share  with  them  their  Lordships  are  aware 
of  no  case  in  which  it  has  been  held,  that 
the  trustees  are  bound  to  exclude  persons 
who  have  no  legal  title  to  share.  They  may 
do  so ;  they  may  treat  all  such  persons  as 
trespassers  and  say  :  Sic  volo  sic  jubeo,  stet 
pro  ratione  voluntas.  But  if  they  choose 
to  admit  to  the  benefit  of  some  park  or 
garden  established  for  a  particular  district 
some  persons  from  over  the  border  or  to 
admit  to  a  public  library  destined  for  a 
particularMunicipality  persons  from  outside, 
or  what  is  perhaps  a  nearer  analogy, 
admit  to  the  hearing  of  a  lecture  by  a 
University  Professor  persons  not  members 
of  the  University,  this  of  itself  furnishes 
no  ground  of  complaint.  Jf  the  numbers 
admitted  are  too  large  or  the  persons  are 
disorderly  or  unpleasant  in  their  habits  or 
in  any  way  substantially  interfere  with  the 
convenience  or  benefit  of  those  for  whom 
the  endowment  was  created,  the  trustees 
may  be  required  to  exclude  them.  But  the 
mere  claim  of  A  that  B  shall  not  share  in 
such  a  benefit  because  D  is  not  within  the 
terms  of  the  foundation  is  not  one  that 
Courts  would  encourage. 

Many  illustrations  of  this  doctrine  could 
be  drawn  from  the  history  of  English 
institutions.  The  great  schools  of  West- 
minster, Ebon  and  Winchester  arose  from 
small  nuclei,  namely,  a  fixed  number  of 
endowed  and  privileged  scholars  taught  by 
appointed  masters.  They  have  become 
what  they  are  because  unprivileged  boys 
in  greater  numbers  have  been  allowed  to 
benefit  by  the  services  of  the  appointed 
masters,  and  to  use  the  school  class-room 
and  play-grounds. 

The  Statutes  of,the  Colleges  in  Oxford  and 
Cambridge  make  provision  for  the  educa- 
tion of  a  fixed  number  of  students  or  scho- 
lars privileged  and  endowed.  Many,  if  not 
most,  of  them  make  no  provision  for  the 
admission  of  other  members  in  statu  pupil- 
Ian,  But  "  commoners,"  so  called,  though 
their  legal  position  is  merely  that  of  board*  218, 


ers,  tie*  v.  Grundon,  Exp.  Damson  (2) 
have  been  for  several  centuries  admitted 
equally  with  the  privileged  scholars  to  the 
benefits  of  the  colleges,  particularly  to  the 
use  of  hall,  library  and  chapel. 

The  intrusion  of  an  unbeliever  into  a 
place  of  religious  worship  might  well  be  a 
case  of  substantial  interference  with  the 
devotions  of  worshippers.  But  the  plaintiffs 
have  failed  to  make  out  that  Bella  was  not 
a  Zoroastrian.  They  suggested  indeed  that 
her  conversion  was  impossible,  or,  at  any 
rate,  that  it  had  not  been  completed  by  due 
initiation  ;  but  their  Lordships  agree  with 
the  Judge  of  first  instance  that  this  sugges- 
tion was  not  established  ;  while,  except  in 
the  evidence  of  one  unsatisfactory  witness, 
there  was  nothing  to  show  that  Bella's 
presence  would  be  thought  to  cause  desecra- 
tion, if  once  it  was  accepted  that  she  was 
a  Zoroastrian. 

Also,  if  it  were  a  question  of  caste  and 
worshippers  of  a  higher  caste  would  be 
defiled  by  the  presence  of  a  lower  caste,  as 
in  Anandrav  Bhikaji  Phadke  v.  Shankar 
Daji  Gharya  (3)  this  would  be  a  serious 
disturbance.  As  was  said  in  that  case  : — 

uThia  right  is  one  which  the  Courts  must 
guard,  as  otherwise  all  high- caste  Hindus 
would  hold  their  sanctuaries,  and  perfrom 
their  worship,  only  so  far  as  those  of  the 
lower  castes  chose  to  allow  them." 

But  this  claim  is  again  not  established. 
Indeed,  what  may  be  called  the  quasi-c&ste 
claim  is  not  even  su^cMcd  in  the  plead* 
ings.  It  is  the  wounding  of  religious 
feelings  and  the  desecration  of  the  Temple 
which  are  put  forward. 

Their  Lordships  have  now  to  consider 
the  relief  which  the  plaintiffs  have  sought 
in  his  suit.  They  have  not  sought  for  a 
general  declaration  as  to  the  persons  who 
are  objects  of  the  trust.  They  have  not 
sought  for  a  construction  of  the  scheme, 
or  for  any  order  to  be  made  upon  the 
trustee  nor  have  they  made  the  trustee  a 
party.  For  this  they  would  probably  have 
required  the  consent  of  the  Advocate  Gene- 
ral, They  pray  in  the  plaint  "for  a  declara- 
tion that  the  defendant  Bella  is  not  entitled 
to  the  use  and  benefits  of  the  Parsi  Fire 
Temple  in  Dalhousie  Street  known  as 
'  Captain's  Agiary  or  Dhurraymair  *  or  to 
the  use  and  benefits  of  the  buildings  stand- 
ing on  the  said  trust  land  or  to  attend  at 


[   (2)  Cooper's  Reports  319, 

i>  (3)  7  B.    323;    7  Ind.  Jur,   613;  4  Ind.  Dec,  (N.  B.) 


206 


KOHOMAL  t>.  KAR'ACHt  PORT  TRUST. 


or   participate    in    any   of    the    religious 
ceremonies  performed  therein/' 

Then  they  claim  an  injunction  to  restrain 
the  defendant  Bella  from  entering  and  the 
other  defendant,  now  dead,  from  lu-inuing 
her  into  the  temple  to  attend  the  religious 
ceremonies.  This  is  a  claim  for  an  injunc- 
tion to  prevent  the  repetition  of  an  alleged 
trespass.  It  must,  therefore,  first  be  establi- 
shed that  there  was  a  trespass  and  one  for 
which  damages,  though  possibly  only  nomi- 
nal, could  be  recovered.  But  for  trespass 
upon  land  the  only  person  to  bring  the 
action  is  the  person  in  possession  of  the 
land,  that  is,  the  trustee.  That  a  beneficiary 
or  two  or  three  beneficiaries  of  a  trust  for 
public  purposes  may  bring  a  suit  for  tres- 
pass against  an  intruder  is  a  novel  principle 
of  jurisprudence  ;  and  the  case  is  not  made 
stronger  by  the  suggestion  that  several 
other  beneficiaries  agree  with  them. 

It  may  be  that  in  India  it  would  be 
convenient  in  some  cases  to  allow  such  a 
suit,  and  the  judgment  in  Anandran  Bhikaji 
Phadke  v,  Shonkar  Daji  Chary  a  (3)  may 
form  a  precedent.  But,  if  so,  the  circum- 
stances must  be  as  powerful  as  in  that 
case.  It  must  be  established  that  the 
juxt  aposition  of  the  two  sets  of  persons  is 
BO  repugnant  to  their  habits  of  mind  that 
the  entrance  of  one  set  into  the  Temple 
entails  the  departure  of  the  other,  so  that 
it  is,  as  it  were,  trespass  to  the  person. 

As  already  stated,  no  such  case  has  been 
established,  and,  therefore,  it  is  not  neces- 
sary to  discuss  the  principle  on  which  the 
judgment  in  Anandran  Bhikaji  Phadke 
v.  Shankar  Daji  Charya  (3)  is  founded 
and  which  was  indeed  accepted  by  the 
Judge  of  first  instance  in  the  present  case. 
The  facts  do  not  warrant  the  claim,  if  it  be 
a  sound  one,  and  no  injunction  can  be 
granted. 

With  regard  to  costs,  the  learned  Judge 
of  first  instance,  while  giving  the  defend- 
ants the  general  costs  of  the  action,  thought 
that  both  sides  were  to  blame  for  the 
inordinate  length  of  the  Bombay  commis- 
sion and  made  the  plaintiffs  pay  two-thirds 
only  of  the  defendant's  costs  of  the  Commis- 
sion. 

If  any  costs  of  the  action  were  to  be  given, 
some  similar  provision  should  be  applied. 
But,  upon  the  whole,  their  Lordships  feel 
that  the  plaintiffs  have  failed  in  the  greater 
part  of  their  suit,  and  that  the  giving  to 
ttiem  of  a  declaration  is  an  indulgence. 
They  were  given  the  coats  of  the  prelimi* 


[92 1.  0. 1928] 

nary  issues  before  Young,  J.,  and  "the  costs 
of  so  much  of  the  appeal  as  related  to 
those  issues.  These  they  keep,  and  the 
orders  against  them  in  respect  of  other 
costs  in  the  Courts  below  will  be  discharged, 
and  there  will  be  no  costs  of  this  appeal. 
Their  Lordships  will  humbly  recommend 
His  Majesty  that  this  appeal  be  allowed, 
that  the  judgment  of  the  Chief  Court  be 
varied,  and  that  a  declaration  be  made, 
namely,  that  Bella  \\as  not  entitled,  as  of 
right,  to  use  the  temple,  or  to  attend 
or  to  participate  in  any  of  the  religious 
ceremonies  performed  therein,  that 
except  as  to  the  costs  awarded  to  the  plaint- 
iffs in  the  Court  of  first  instance,  and  in  the 
Chief  Court,  there  be  no  costs  in  the  Courts 
below  and  that  there  be  no  costs  of  this 
appeal, 
N.  H.  Appeal  allowed, 

Z,  K. 

Solicitor  for  the  Appellants  Mr.  A.  M. 
Bramall 

Solicitors  for  the  Respondent :— Messrs, 
Waterhouse  &  Co. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

REVISION  APPLICATION  No.  90  OP  1923, 

July  25,  1923. 

Present: — Mr.  Kennedy,  J.  CM  and 
Mr.  Rupchand  Bilaram,  A.  J.  (X 
MESSRS.  POHUMAL  AND  BROTHERS- 
PLAINTIFFS —APPLICANTS 

versus 
THBS  KARACHI  PORT  TRUST  AND  ANOTHER 

— DEFENDANTS — OPPONENTS. 
Bills  of  Lading  Act  (IX  of  1856),  s.  3— Bill  of  Lading, 
description  of  goods  in,   whether  conclusive— Exemp- 
tions clause  in  Bill  of  Lading,  effect  of— Port  Trust, 
whether  entitled  to  benefit  of  exemption. 

The  general  rale  based  on  the  provisions  of  s.  3  of 
the  Bills  of  Lading  Act,  to  the  effect  that  in  the 
absence  of  any  proof  that  the  Bills  of  Lading  were 
granted  under  a  misrepresentation  without  any  default 
on  the  part  of  the  person  signing  them  and  wholly 
due  to  the  fault  of  the  shipper  or  the  holder  of  such, 
Bills  of  Lading,  the  Bills  of  Lading  are  conclusive  evi- 
dence that  ths  goods  bearing  particular  marks  aa 
shown  in  the  respective  Bills  of  Lading  were  put  on 
board,  has  J!  >  appIiYatiun  when  the  Shipping  Company 
has  protect  ••!  itiolf  by  insertion  of  a  clause  in  tha 
Bill  of  Lading  that  the  marks  and  numbers  though, 
shown  in  the  Bill  of  Lading  are  unknown  to  them  and 
that  they  do  not  admit  that  the  marks  or  numbers 
shown  in  the  Bill  of  Lading  are  correct  and  when  they 
have  exempted  themselves  from  liability  against 
obliteration  or  difference  of  marks,  [p.  207,  cols,  1 A  8,1 


POHOMAL  V.  KARACHI  PORT  TRUST, 


[921.0.1926] 

Section  3  of  tiie  BilU  of  Lading  Act  applies  only  in 
the  CAse  of  the  master  or  person  signing  the  Bill  and 
does  not  apply  to  the  Port  Trust,  [p.  208,  col,  1  ] 

Even  if  the  Port  Trust  be  considered  to  be  the  agent 
of  the  Shipping  Company,  they  would  be  equally 
entitled  to  the  benefit  of  an  exemption  clause,  as  a 
wharfinger  is  justified  or  excused  by  the  same  thing 
as  would  justify  or  excuse  the  master  and  can,  conse- 
quently, claftn  benefit  of  exemptions  provided  in  a 
Bill  of  Lading,  [ibid] 

Glyn  Mills  Co.,  v.  East  and  West  India  Dock  Co  , 
(1882)  7  A.  0.  591  at  p  614;  52  L.  J.  Q  B  146,  47  L. 
T.  309;  31  W,  R.  201,  relied  upon, 

Revision  application  against  the  judg- 
ment and  decree,  of  the  Judge  of  the  Small 
Causes  Court,  Karachi,  dated  the  31st  July 
1923. 

Mr.  Dipchand  Chandumal,  for  the  Appli- 
cants. 

Messrs.  T.  G.  Elphinston  and  Nihalchand 
Tikamdas,  for  the  Opponents. 

JUDGMENT.—The  plaintiffs-appli- 
cants are  holders  of  certain  Bills  of  Lad- 
ing of  tin  plates  consigned  from  Trieste 
to  Karachi  by  an  Italian  ship.  The  plaint- 
iffs instituted  this  suit  in  the  Small  Causes 
Court,  Karachi  against  the  Shipping  Com- 
pany and  the  Karachi  Port  Trust  for  the 
value  of  57  mild-steel  plates  short  account- 
ed for.  Their  suit  was  dismissed  against 
both  the  defendants  except  in  respect  of 
the  value  of  one  mild-steel  plate  which 
was  proved  to  have  been  short  landed  and 
for  which  they  got  a  decree  against  the 
Shipping  Company.  The  plaintiffs  come 
now  before  us  in  revision.  It  appears  from 
the  written  statement  filed  by  the  Karachi 
Port  Trust  that  2,070  plates  bearing  various 
marks  were  landed  at  Karachi  of  which 
2,014  plates  were  delivered  to  the  con- 
signees according  to  the  proper  marks 
shown  in  their  Bills  of  Lading.  The  re- 
maining 56  plates  bore  marks  different 
from  those  shown  in  the  bills  of  Lading 
of  the  plaintiffs.  These  56  plates  were 
tendered  to  the  plaintiffs  but  were  rejected. 
To  prove  their  claim  against  both  the 
defendants  the  plaintiffs  have  relied  on  the 
description  of  the  plates  as  given  in  the 
Bills  of  Lading  and  the  provisions  of  s.  3 
of  the  Bills  of  Lading  Act  and  have  contend- 
ed that  in  the  absence  of  any  proof  that  the 
Bills  of  Lading  were  granted  under  a  mis- 
representation without  any  default  on  the 
part  of  the  person  signing  them  and  wholly 
due  to  the  fault  of  the  shipper  or  the 
holder  of  such  Bills  of  Lading,  th&  Bills  of 
Lading  are  conclusive  evidence  that  the 
goods  bearing  particular  marks  as  shown 
fa  the  respective  Bills  of  Lading  were  put 


207 


on  board.  Ordinarily  the  Bills  of  Lading 
would  no  doubt  afford  such  evidence  against 
the  Shipping  Company,  but  in  view  of  the 
difficulty  of  verifying  particular  marks  on 
articles  of  a  similar  nature  shipped  on 
board,  the  S:ii|-|iii,;r  Companies  protect 
themselves  by  inserting  a  clause  that  the 
marks  and  numbers  though  shown  in  the 
Bill  of  Lading  are  unknown  to  them  and 
that  they  do  not  admit  that  the  marks  or 
numbers  shown  in  the  Bills  of  Lading  are 
correct  They  also  protect  themselves 
against  obliteration  of  marks. 

The  Bills  of  Lading  in  suit  are  in  Italian 
and  contain  side  by  side  English  transla- 
tion of  the  clauses  providing  for  exemption. 
The  original  Italian  clause  provides  for 
exemption  of  the  Shipping  Company  "Per 
differenza  0  Maneanza  di  marche  e  Numeri" 
It  has  Toeen  translated  as** for  want  or 
obliteration  of  marks  or  numbers,"  which 
is  not  accurate  The  Bills  of  Lading  do 
exempt  the  Company  for  difference  in 
marks.  The  description  of  marks  as  given 
in  the  Bills  of  Lading  is,  therefore,  no  evi- 
dence against  the  Shipping  Company.  It 
was,  therefore,  for  the  plaintiffs  to  prove  by 
evidence  aliende  that  plates  bearing  the 
particular  marks  were  actually  handed  over 
to  the  Shipping  Company.  This  they 
have  failed  to  prove.  Even  if  it  be  assum- 
ed that  the  plates  bearing  the  particular 
marks  were  put  on  Board,  the  Shipping 
Company  are  further  exempted  from  liabi- 
lity under  cl.  14  of  the  Bill  of  Lading 
known  as  the  "free  of  ships  Tackle  clause11 
which  reads  as  follows  : — 

"The  ship's  responsibility  shall  cease 
when  goods  pass  on  deck  ready  to  be 
discharged. 

<lAs  soon  as  the  steamer  arrives  at  the 
discharging  place  and  is  ready  to  discharge 
wherever  she  may  be  anchored,  Consignees 
must  be  ready  to  take  delivery  of  the  goods 
as  they  come  to  hand  in  the  holds  from 
the  ship's  deck  where  the  responsibility 
of  the  Company  shall  cease.  Captain  is 
authorised  to  difHmnjo  by  day  and  night 
on  Sundays  and  holidays  without  interrup- 
tion and  to  change  berth  during  discharge. 

"And  if  consignees  do  not  take  delivery 
in  due  time,  the  Captain  has  faculty  to 
land  or  discharge  the  goods  in  lighters  or 
hulks  at  receiver's  risk  and  expenses.  Iix 
case  of  taking  delivery  from  ship's  deck  no 
claims  shall  be  admitted  for  loss  or  damage 
after  the  goods  have  left  the  ship's  side 
without  any  such  loss  or,  damage  being 


208 


MAUNO  THAN  V.  ZAINAT  BIBI. 


ascertained.  In  every  other  case  no  claim 
for  indemnity  shall  be  admitted,  unless 
made  in  writing  to  the  Company's  agent 
within  24  hours  from  unloading  of  the 
goods." 

Thft  plaintiffs'  case,  therefore,  fails  against 
the  Shipping  Company.  They  cannot  rely 
on  the  description  given  in  the  Bills  of 
Lading  as  against  the  Karachi  Port  Trust 
as  s.  3  of  the  Bills  of  Lading  Act  is  limited 
to  the  master  or  the  person  signing  the 
Bills.  Even  if  it  be  assumed  that  the  Port 
Trust  act  as  the  agents  of  the  Shipping 
Company  they  will  equally  be  entitled  to 
take  advantage  of  the  exemption  in  the 
Bills  of  Lading.  As  pointed  out  by  Lord 
Blackburn  in  Glyn  Mills  Co.  v.  East  and 
West  India  Dock  Co.  (1),  a  wharfinger  is 
justified  or  excused  by  the  same  thing  as 
would  justify  or  excuse  the  master. 

The  Port  Trust  are,  however,  not  ordi- 
nary wharfingers  or  agents  of  the  Shipping 
Company.  They  land  the  goods  under 
their  statutory  authority  as  agents  of  both 
parties  and  a  Bill  of  Lading  are  no  evi- 
dence against  them,  Again  it  was  for  the 
plaintiffs  to  prove  that  the  Port  Trust 
received  the  particular  goods.  This  they 
could  have  done  either  by  proving  that 
the  Port  Trust  signed  for  the  specific 
goods  aye  that  they  wrongly  delivered  the 
specific?  goods  belonging  to  them  to  other 
oor.Mtfi  ee*  This  they  have  failed  to  prove. 

The  plaintiffs' case  as  M'.  ::;.;•:  ihrri  also 
fails.  We  dismiss  this  «:j[i'M':  'i  with 
costs  two  separate  sets  of  costs  to  be  allow- 
ed to  the  two  defendants. 

p.  B.  A.  Application  dismissed. 

(1)  (1882V7  A.  0.  591  at  p.  614;  52  L.  J.  Q.  B.  HC;  47 
L,  T.  309;  31  W,  R.  201. 


RANGOON  HIGH  COURT. 

CIVIL  REVISION  No.  15  OF  1925. 

May  7,  1925, 

Present:— Mr.  Justice  Pratt. 
MAUNQ  THAN— PETITIONER 

versus 
ZAINAT  BIBI  AND  ANOTBBR— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  161, 0. 
XLI,  r.  19 — Appeal — Dismissal  for  default— Laches 
of  Advocate — Mistake  of  clerk— Restoration. 

The  laches  of  an  Advocate  or  the  careless  mistake 
of  his  clerk  is  not  sufficient  cause  for  restoration,  of  an 
Appeal  dismissed  for  default. 


Mr.  San  Way  for  the  Petitioner. 

Mr.  Lutter,  for  the  Respondents. 

JUDGMENT. — Applicant  seeks  to  have 
his  revisional  application,  which  was  dis- 
missed for  default  of  appearance,  restored 
under  O.  XLI,  r.  19. 

Counsel's  explanation  of  his  failure  to 
appear  on  the  day  fixed  for  hearing  is  that 
his  clerk  after  examining  the  pause  list  for 
the  week  made  a  mistake  and  informed  him 
that  the  case  was  fixed  for  hearing  before 
the  Bench  on  the  17th  or  18th. 

Counsel  went  to  Court  to  argue  the  case 
on  the  17th  and  found  that  it  had  been 
heard  ex  parte  on  the  previous  day. 

An  examination  of  the  cause  lists  for  the 
week  in  question  shows  that  the  case  was 
on  the  Single  Judge  Board  fixed  for  the 
16th. 

There  was  a  Bench  Board  fixed  for  the 
17th  and  18th. 

It  is  hard  prima  facie  to  understand  how 
the  clerk  could  have  made  the  mistake,  he 
is  alleged  to  have  done,  and  in  any  case  the 
revision  application  was  not  a  Bench  matter 
and  Counsel  should  have  known'there  was 
something  suspicious,  when  his  clerk  in- 
formed him  the  case  was  down  for  hearing1 
before  a  Bench. 

The  Punjab  case  of  Gauran  v.  Brij  Raj 
Saran  (1)  does  not  lay  down  that  the  mis- 
take of  an  Advocate  is  sufficient  cause 
within  the  meaning  of  r.  19  of  O.  XLI,  but 
a  Single  Judge  there  held  that  he  had  a 
discretion  to  restore  an  appeal  where  a  case 
was  made  out  erven  though  that  case  did  not 
amount  to  sufficient  cause. 

Apparently  the  Judge  was  of  opinion  that 
the  case  was  one,  where  he  was  justified  in 
using  his  inherent  power  of  restoration. 

The  laches  of  an  Advocate  or  the  careless 
mistake  of  his  clerk  is  not  sufficient  cause 
for  restoration  of  an  appeal  dismissed  for 
default. 

I  do  not  consider  on  the  facts  the  present 
is  a  case  in  which  good  ground  has  been 
made  out  for  the  exercise  of  its  inherent 
power  by  the  Court. 

The  application  is  dismissed  with  costs — 
Advocate's  fee  one  gold  mohur. 

z.  K.  Application  dismissed. 

(1)  51  Ind.  Cas.  607;  53  P.  R.  1919. 


[92  I.  0,1926] 


HC8S4TN  V.  BMPBROR. 


209 


LAHORE  HIGH'COUKT. 

CRIMINAL  APPEAL  No.  877  OF  1924. 

January  7,  1925. 

iPres&nt : — Mr.  Justice  Abdul  Raoof. 

•HASHMAT  HU8S&IN  alias  CHUNNI 

AND  OTH8RS — CONVICTS— ACCUSED — 

—APPELLANTS 

versus 
EMPEROR— RESPONDENT. 

Criminal  trial—First 'Information,  delay  in  making 
—Conflicting  statements  as  to  number  of  accused — 
Suspicion. 

Where  a  complainant  has  made  conflicting  state- 
ments with  regard  '  to  the  number  of  accused  in  the 
First  Information  Report  and  his  complaint,  his  evi- 
dence with  regard  to  the  identification  of  the  accused 
persons  should  be  looked  upon  with  suspicion.  The 
fact  that  the  First  Information  Report  was  made  after 
considerable  delay  and  that  there  is  no  satisfactory 
explanation  of  the  delay  would  add  to  the  suspicion, 
[p.  211,  col.  2,] 

Criminal  appeal  from  an  order  of  the  Dis- 
trict Aftigittrau*.  Gargaon,  dated  the  30th. 
September  1^24. 

Messrs.  Aziz  Ahmad  and  Shamair  Chaftd, 
for1  the  Appellants. 

The  Government  Advocate,  for  the  Re- 
spondent. 

JUDGMENT.— The  appellants  have 
been  convicted  under  s.  363  of  the  Indian 
Penal  Code  and  have  been  awarded  various 
sentences,  They  have  coins  up  in  appeal,  and 
it  has  been  contended  that  they  having 
been  once  discharged  ought  not  to  have 
been  tried  a  second  time. 

The  following  facts  will  disclose,  the 
nature  of  the  proceedings  taken  -against  the 
appellants : — 

In  the  village  Narainpur  lived  one  Kan- 
haya  Ahir,  a  collateral  in  the  6th  degree  of 
Mangtu  complainant  Kanhaya  died  in  1918 
leaving  «•  widow  and  three  daughters  named 
Musammat  Moharli,  major,  Janki  minor, 
aad:  Shaiiti  minor.  After  the  death  of  their 
father  the  girls'  lived'  with  their  mother  till 
h«r  death  in  March  192U.  Musammat 
Moharli '  was  married  to  Pern  Raj  accused 
No  1.  'Her  minor  sisters  Musammat  Janki 
and  Musammat  Shanti  then  b^gan  to  live 
with  Bhagwana  and^heo  Lai  A  h  i  ^.  M 1 1  \  irt  1 1 
applied  to  be  appointed  the  giiiinljiui  of 
th^  girls  and  in  spite' of  the  opposition  of 
Bhagwana,  Sheo  Lai  and  Ram  Narain  he 
was  appointed  the  guardian  both  of 
pfftsom  and  the  property  of 'the  rrrinors. 
Tfa^girte-then'^me  to  live  with  Mangtu. 
Ou  the i  25th.  of  April  1923,  Musammat 
Mdhatli,  the  (married  sister  of  the  minor 
girls, 'applietf 'to  the  v Senior  Sufeordmat* 


Judge  for1  the  removal  of  Mangtu  from  the 
guardianship  on  the  ground  that  he  was 
going  to  marry  Musammat  Janki  to  an  un- 
suitable person.  She  also  asked  the  Court 
to  appoint  her  as  guardian  of  her  sisters  in 
the  place  of  Mangtu.  Her  application  was, 
of  course,  opposed  by  Mangtu.  On  the  29th 
of  April  1923  Mangtu  lodged  the  First  In- 
formation Report  at  Police  Station  Khol,  10 
miles  from  Narainpur,  to  the  effect  that  on 
the  evening  of  the  28 bh  he  and  most  of  the 
men  of  the  village  of  Narainpur  were  on 
their  threshing-floors  when  the  appellants 
along  with  some  other  persons  came  to  his 
house  and  took  away  the  two  minor  girls 
by  force.  He  mentioned  the  names  of  the 
eight  accused  and  Umrao,  Mashuq  and 
Nathu  as  the  persons  who  had  been  seen  by 
witnesses  at  the  time  of  the  raid.  As  the 
Sub  Inspector  in  charge  of  the  thana  was 
absent,  the  Madad  Myharrir  proceeded  the 
next  day  to  the  spot  to  make  the  investiga- 
tion. On  the  1st  of  May  a  Head  Constable 
took  charge  and  on  the  2nd  of  May  the  Sub- 
Inspector  Amjad  Ali  was  specially  deputed 
to  investigate  and  he  carried  on  the  investi- 
gation upto  the  6th  of  May.  On  the  29th 
of  May  the  Sub-Inspector  Kamar-ud-din 
took  charge  of  the  investigation.  In  the 
meantime  Mangtu  put  in  a  petition  of 
complaint  on  the  15th  of  May  1923  .in  the 
Court  of  Mr.  F.  L.  Brayne,  District  Magis- 
trate, Gurgaon.  In  this  petition  he  added 
the  names  of  Maulia,  Aftab  Husain,  Ijaz 
Hussain,  Muhammad  Abbas,  Shabrati  and 
Azimullah  to  the  list  of  the  accused  persons. 
On  the  7th  of  August  1923  the  Police  sent  up 
a  challan  for  proceeding  against  eleven 
persons,  namely,  Pem^Raj,  Hashmat  Hussain, 
Muhammad  Abbas/  Maulia,  Musammat 
Moharli,  Bal  Chand,  Ikram,  Gauria,  Deoki, 
Hazari,  and  Nathu.  The  challan  was  present- 
ed before  Mr.  Brayne,  District  Magistrate, 
Gurgaon,  before  whom  the  complaint  of 
Mangtu  was  pending.  On  the  7th  of 
Augus*  1923  the  Court  Inspector  submitted 
a  report  criticising  the  First  Information, 
Report,  Mangtu's  complaint  and  ail  the 
witnesses  produced  by  Mangtu  during  the 
investigation  and  expressed  his  opinion, 
that  there  was  no  case  worth  trying.  The 
Public  Prosecutor  also  expressed  his  opinion 
to  the  same  effect  and  the  Superintendent 
of  Poliqe  agreed  with  him.  At'th'e  sugges- 
tion of1  the  Superintendent  of  Police  the 
Court  Inspector  on  the  4th  of  September 
1923  asked  the  permission  of  the  Court  to 
withdraw  tire  case.  Th$  accused  wera 


210 


HASH  MAT  E  US  SAIN  V.  EMPEROR. 


[92  I.  0.  1926J 


Accordingly  discharged    by    the    District 
Magistrate. 

Hoon  after  i.  e.,  on  the  llth  of  September 
1923  the  District  Magistrate  proceeded  on 
the  complaint  of  Mangtu  and  after  taking 
action  under  s  202  of  the  Or.  P.  C.  decided 
to  try  the  eight  accused.  Objection  was 
taken  on  behalf  of  the  accused  persons  that 
they  having  already  been  discharged  could 
not  be  tried  a  second  time.  The  District 
Magistrate  overruled  this  objection  and 
proceeded  with  the  case.  It  must  be  noted 
in  the  beginning  that  on  account  of  the 
'Police  proceedings  and  the  subsequent 
order  of  discharge  the  case  has  become 
very  much  complicated.  Of  the  accused 
persons  four  were  Syyads,  one  Ahir  and  two 
Bautias.  With  the  exception  of  Pern  Raj 
Akir  of  Mauza  Fazilpur,  all  the  other 
accused  persons  were  residents  of  Muuza 
llussainpur,  Tahsil  Rewari,  District  Gur- 
gaon:  There  are  two  alternative  versions 
of  the  occurrence  of  the  28th  of  April  1923. 
The  version  of  the  prosecution  has  already 
been  given.  The  defence  version  was  that 
the  girls  were  taken  away  by  their  sister 
Mummmat  Mahorli  and  they  had  willingly 
accompanied  her  because  they  were  badly 
treated  by  the  two  wives  of  their  guardian 
Mangtu.  The  issue  to  be  tried  in  the  case 
was  whether  the  accused  persons  had  for- 
cibly taken  away  the  girls  and  haJ  com- 
mitted an  offence  under  s.  363  of  the  Indian 
Penal  Code  or  whether  the  girls  had  gone 
away  willingly  with  their  sister  Musummat 
Moharli  and  Mangtu  finding  that  the  girls 
had  disappeared  had  falsely  brought  the 
charge  against  the  accused.  As  already 
pointed  out  in  the  First  Information  Report 
the  names  of  eleven  persons  were  mentioned 
by  Mangtu.  When  he  filed  his  complaint 
he  added  some  more  names.  The  Police 
challaned  the  case  against  some  of  the 
accused  and  some  other  persons.  These  dis- 
crepancies in  the  First  Information  Report, 
in  the  complaint  and  iji  the  challan  make 
the  case  very  suspicious  because  it  appears 
that  Mangtu  and  his  friends  were  not  able 
to  make  up  their  minds  as  to  the  persons 
whom  they  would  like  to  prosecute.  An- 
other circumstance  which  makes  the  case 
suspicious  is  that  Musammat  Moharli  and 
her  minor  sisters  appeared  before  the  thane- 
dar  of  Farrukhnagar  and  stated  that  owing 
to  the  bad  treatment  by  the  two  wives  of 
Mangtu  they  had  come  away  from  his  house. 
The  statement  of  Musammat  Moharli  was 
taken  down  and  also  that  of  Musammat  Janki 


the  elder  of  the  two  minor  girls.  In  the 
First  Information  Report  by  Mangtu  Sheo 
Dat,  Kathu  and  Hem  Raj  were  mentioned 
as  eye-witnesses.  In  his  examination  on 
the  complaint  he  also  mentioned  Bala 
(P.  W.  No.  4)  and  Musammat  Jeoni  (P.  W. 
No.  2)  among  the  eye-witnesses.  In  the 
First  Information  Report  no  motive  was 
alleged  for  the  crime.  In  the  petition  of 
complaint,  however,  it  was  stated  that  the 
intention  of  the  accused  was  to  sell  the  girls 
and  to  take  away  some  moveables  from  his 
house.  Nathu,  though  mentioned  as  an 
eye-witness  was  not  examined  for  the  pro- 
secution. Likewise  the  second  wife  of 
Mangtu,  though  present  in  the  house  at 
the  time  of  the  occurrence,  was  not  called 
as  a  witness.  Sidhu,  brother  of  Mangtu,  was 
also  present  but  he  too  was  not  called. 
Mangtu  in  his  deposition  mentioned  the 
name  of  one  Sohnia  as  a  witness,  but  this 
person  also  was  not  called  as  a  witness  for 
the  piosecution. 

According  to  the  story  for  the  prosecution 
a  number  of  persons  had  arrived  on  the 
spot  on  hearing  the  hue  and  ory,  yet  no 
attempt  appears  to  have  been  made  either 
to  follow  the  raiders  or  to  repoit  to  the 
Police  at  once  without  losing  time.  What 
appeals  to  have  been  done  was  that  some 
persons  were  sent  about  to  search  the  girls. 

The  question  to  be  decided  whether  the 
occurrence,  as  stated  by  the  prosecution 
witnesses,  took  place  at  all  and  whether 
the  appellants  were  members  of  the  raiding 
party.  If  the  story  told  by  Mangtu  is  true 
he  ought  to  have  known  that  Pern  Raj, 
the  husband  of  Musammat  Moharli  must 
have  taken  away  the  girls  to  Fazilpur. 
Instead  of  going  straight  to  Pern  Raj's 
house  he  is  said  to  have  sent  men  to  search 
the  girls.  This  indicates  that  he  did  not 
know  how  and  when  the  girls  had  been 
taken  away.  The  learned  Magistrate  instead 
of  discussing  and  considering  the  evidence 
for  the  piosecution  first  took  up  the 
case  set  up  on  behalf  of  the  accused 
and  for  reasons  set  forth  in  his  judg- 
ment disbelieved  the  story  told  for  the 
defence.  Musammat  Moharli  has  stated 
that  she  took  away  the  girls  on  the  night 
in  question  in  the  absence  of  Mangtu  and 
travelled  by  Railway  from  Rewari  Station 
to  Patli  from  where  she  walked  on  foot.  The 
distance  between  Fazilpur  and  Narainpur 
is  $  15  or  16  kos.  It  was  not  easy  to  cover 
this  distance  on  foot,  and  I  am  inclined  to 
believe  th$t  whoever  might  have  taken 


(]92  I.  0.  1026]  HAfHMAT  HTJSSAIN 

girls  the  journey  must  have  been  made  by 
Railway,  There  is  no  evidence  on  the  record 
to  prove  that  accused  persons  had  travelled 
that  night  by  Railway.    On  the  other  hand 
there  is  a  good   deal  of  evidence    to  corro- 
borate  the  story  told  by  Musammat  Moharli 
that  the  girls  were  taken  away    by  her    by 
Railway.    There  is    also  evidence    on    the 
record,  as  pointed    out    by  the   Magistrate 
himself,  that  Musammat  Moharli   had  been 
observed  in  the  village  Narainpur   for  two 
or  three  days  before  the  date  of  occurrence. 
Piare  Lai  compounder  saw  the  girls  at  the 
Railway  Station  Rewari  standing  and  weep- 
ing in  the  passengers1  shed  and  saying  that 
they  had  missed  their  elder  sister.  A  Const- 
able searched  out  the  woman  from  the  Book- 
ing Office.  Ram  Pershad  (I).  W.  No.  3)  on  his 
way  back  from   Farrukhnagar  where  he  had 
gone  to  get  articles  for  his  daughter's    mar- 
riage saw  Musammat  Moharli  at  a  p?ao  about 
l^  kos  from  Farrukhnagar    going  with  the 
girls.    la  a  similar  manner  Ram  Jas  (D.  W. 
No.  4)  also  saw  the  girls  in  the  company  of 
Musammat  Moharli  at  the  Piao.     Mangalia 
(D.  W.  No.  18)  also  saw  Musammat  Moharli 
taking  away  her  two  younger  sisters.   Bai 
Ram  (D.  W.  No.  19)  met  Musammat  Moharli. 
with  her  two  sisters  at  a  well  outside  Fazil- 
pur about  sunset  at  the  end  oiBisakh,   Bag 
Mai  (D.  W.  No.    20)   met  the  woman  with 
her  two  sisters  at  the  Piao.     Kundan  (D.  W. 
No.   21)  while  working  in   the  Johar  saw 
Moharli  passing  by  with  two  younger  girls. 
Sayyed    Amir  Shah   (D.  W.  No.    28),  Head 
Constable  Railway  Police,  Rewari,  has  cor- 
roborated Piara  Lai's  evidence    as    to    the 
presence    of  the  two  girls   and  Musammat 
Moharli  at  the  Rewari   Railway  Station  to 
whom  Musammat    Moharli  stated  that  she 
was  taking  away  the  girls  from  Narainpur 
to  Fazilpur.    Piare  Lai  (D.    W.  No.  2),  the 
compounder,  and  Sayyed  Amir  Shah  (D.  W 
No.  28)  Head  Constable  Railway  Police,  are 
quite  independent  witnesses  not    shown  to 
be  in  any  way  connected  with  the  accused. 
There  is  no  reason  why  their  evidence  should 
not  be  believed.    The   learned  Magistrate 
has  believed  this  story  on  the    ground  that 
it  was  extremely  unlikely  that  Mangtu,  who 
was  trying   to  arrange  marriages  for  these 
girls  for  his  own  profit  would  have  left  them 
unguarded  when  he  knew  that  his  principal 
opponent  Musammat   Moharli,    who     had 
already  applied  to  the  Civil    Court  to  stop 
the  marriages  was  staying    in    the    village, 
there  is  no    evidence    in  support   of  the 
Magistrate's  theory*    According  to  kis  own 


story  Mangtu  was  not  present  at  his  house 
on  the  evening  in  question.  There  are  some 
other  reasons  also  given  by  the  learned 
Magistrate  for  diMMrdiricj  the  story  of 
Musammat  Moharli  hut  they  are  all  con- 
jectural. Nasir-ud  din  Ahmad,  the  Sub- 
Inspector  of  Farrukhnagar,  has  proved  the 
report  No.  14  dated  the  30th  of  April  1923 
in  which  he  had  taken  down  the  statement 
of  Musammat  Moharli  and  the  minor  girl 
Musammat  Janki  as  to  how  they  had  come 
away  from  Narainpur.  All  this  evidence 
fully  supports  the  story  that  Musammat 
Moharli,  the  only  interested  person  in  the 
girls,  had  taken  them  away  probably  with 
the  help  of  some  male  friends  whose 
names  have  not  been  disclosed. 

The  prosecution  story  is  sought  to  be 
proved  by  the  following  witnesses: — Mangtu 
(P.W.  No.  1)  MusawmatJeom  (P.  W.  No.  2), 
Hern  Raj  (P.  W.  No.  3),  Bala  (P.  W.  No.  4), 
Sheo  Ddt  (P.  W.  No  5),  Mummmat  Janki 
(P.W.  No.  6),  RamDat(P  W.  No.  7)  and 
Musammat  Shanti  (P.  W.  NO.  8).  The 
principal  witness  of  course  is  Mangtu,  but 
he  has  made  such  conflicting  statements 
about  his  movements  after  the  alleged  occur- 
rence that  it  is  difficult  to  place  explicit 
reliance  upon  hia  evidence.  The  Magistrate, 
while  admitting  that  Mangtu  had  made  con- 
flicting statements, has  expressed  hisopinion 
that  they  can  be  reconciled.  He  has,  of 
course,  mentioned  the  names  of  all  the  eight 
accused;  but  as  he  made  conflicting  state- 
ments with  regard  to  the  number  of  accus- 
ed in  the  First  Information  Report  and  his 
complaint  I  am  not  prepared  to  accept  his 
evidence  with  regard  to  the  identificatioa 
of  the  accused  persons.  The  occurrence  ia 
said  to  have  taken  place  at  about  8  o'clock 
in  the  evening  and  the  First  Information 
Report  was  not  lodged  till  the  evening  of 
the  29th.  The  explanation  given  for  the 
delay  is  not  convincing.  Musammat  Jeoni 
though  not  mentioned  either  in  the  First 
Information  Report  or  in  the  petition  of  com- 
plaint, has  been  produced  as  a  witness  in 
the  case.  She  is  obviously  a  biased  witness 
and  she  could  only  identify  Pern  Raj  and 
Hussain  alias  Chunni  whose  names  most 
necessarily  have  been  uppermost  in 
her  mind,  that  of  Pern  Raj  on  account  of 
his  being  the  husband  of  Musammat  Moharli 
and  that  of  Hashmat  Hussain  on  account  of 
old  standing  enmity.  Much  reliance  cannot 
be  placed  upon  her  statement.  Hem  Raj 
has  mentioned  all  the  eight  accused.  He 
is  of  the  complainant's  baradn.  He  gava 


2i2 


SHAFI  AHMAD  NABI  AfiMAD 


[921.  0. 


evidence  for  Mangtu  in  a  case  against  Haeh- 
inat  Hussain  accused.  He  also  gave  evi- 
dence in  favour  of  the  complainant  in  the 
guardianship  case.  He  is  evidently  a 
partisan  of  the  complainant.  His  evidence, 
therefore,  is  not  of  much  value.  Bala  (P. 
W.  No.  4)  had  been  evidently  substituted 
for  Nathu  who  has  not  been  called,  as  his 
name  was  neither  disclosed  in  the  First  In- 
formation Report  nor  in  the  petition  of  com- 
plaint. The  learned  Government  Advocate 
has  not  relied  upon  the  evidence  of  this  man 
nor  has  the  District  Magistrate.  Sheo  Dat 
(P.  W.  No.  5)  has  mentioned  Hashmat 
Husain,  Pern  Raj,  Ikram  and  Deoki,  but  he 
has  stated  that  the  raiding  party  consisted 
of  30  or  35  men.  His  statement  was  not 
takei\  down  till  two  or  three  days  later. 
The  witness  has  evidently  exaggerated  the 
number  of  raiders  as  his  statement  was 
taken  after  such  a  long  time.  I  am  not 
inclined  to  place  much  reliance  upon  his 
evidence.  Musammat  Janki  had  stated  on 
the  30th  of  April  1924  at  Fazilpur  that  she 
had  gone  with  her  sister  Musammat  Moharli 
of  her  own  accord  to  escape  the  bad  treat- 
ment of  Mangtu's  wives.  She  is  now  under 
the  influence  of  Mangtu  and  as  a  witness  in 
this  case  has  contradicted  her  first  state- 
ment. It  is  not  safe  to  place  much  reli- 
ance upon  her  evidence.  The  evidence 
of  Ram  Ditta  does  not  help  the  prosecution 
much,  because  the  fact  of  the  presence  of 
the  girls  at  Fazilpur  is  admitted  on  both 
sides.  The  girl  Shanti  has  mentioned  the 
names  of  Hashmat  Hussain  and  Pern  Raj, 
but  she  being  under  the  influence  of  Mangtu 
much  weight  does  not  attach  to  her  evidence. 
Numerous  discrepancies  were  pointed  out 
to  the  learned  Magistrate  in  the  evidence 
for  the  prosecution  witnesses  which  he  has 
tried  to  explain  away  on  various  theories. 
1  am,  however,  not  satisfied  with  the  ex- 
planations given  by  the  learned  Magistrate. 
In  my  opinion  the  learned  District  Magis- 
trate has  taken  a  one  sided  view  in  this 
case.  The  circumstances  *  of  the  case  were 
such  that  raised  great  doubts  as  to  the  cor- 
rectness of  the  prosecution  story.  The 
Court  Inspector,  the  Public  Prosecutor  and 
the  Superintendent  of  Police  after  a  careful 
consideration  of  all  the  evidence  and  cir- 
cumstances of  the  case,  had  come  to  the 
conclusion  that  there  were  great  doubts  as 
to  the  correctness  of  the  prosecution  story. 
The  District  Magistrate  himself  upon  the 
application  of  the  Court  Inspector  had 
discharged  all  the  accused  persons.  The  fact 


that  one  of  the  Sub-Inspectors,  who  had 
carried  on  the  investigation,  was  in  a  way 
related  to  Hashmat  Hussain  accused  influ- 
enced the  mind  of  the  learned  District 
Magistrate  to  a  large  extent  and  induced 
him  to  disregard  entirely  the  Police  pro- 
ceedings. Kamar-ud-din  Sub-Inspector,  how- 
ever, cannot  be  said  to  have  been  a  biased 
officer.  Nothing  is  alleged  against  the  Court 
Inspector,  the  Public  Prosecutor  and  the 
Superintendent  of  Police.  In  my  opinion 
the  Court  Inspector  was  fully  justified  in 
withdrawing  the  case,  I  have  grave  doubts 
as  to  the  correctness  of  the  conviction  in 
this  case. 

I,  therefore,  accept  the  appeal,  acquit 
all  the  appellants  and  direct  that  they  be 
forthwith  released. 

z    K.  Appeal  accepted. 


PRIVY  COUNCIL. 

APPEAL  FROM  THE  BOMBAY  HIGH  COURT. 

November  5,  1925. 
Present: — Lord  Dunedin,  Lord  Sumner  and 

Sir  John  Edge. 

SHAFI  AHMED  NABI  AHMED 
AND  OTflERS — PETITIONERS 

versus 
EMPEROR— RESPONDENT. 

Privy   Council — Practice-—  Crimina^  I     ".    "   • 

sal    by    Governor-General  to  transfer 
of    evidence — Adequacy   of  Judge's  charge  to  Jury — 
Interference,  when  permissible 

Their  Lordships  of  the  Judicial  Committee  of  the 
Privy  Council  in  dealing  with  petitions  for  special 
leave  to  appeal  against  sentences  pronounced  in  the 
Criminal  Courts  of  the  various  dominions  of  His 
Majesty  will  not  act  as  a  Court  of  Criminal  Appeal 
and  will  not  review  or  interfere  with  the  course  of 
1  criminal  proceedings  unless  it  is  shown  that  by  a 
disregard  of  the  forma  of  legal  process  or  by  some 
violation  of  the  principles  of  natural  justice,  or  other- 
wise, substantial  and  grave  injustice  has  been  done. 

It  is  in  the  power  of  the  Governor  General  of  Indiaj 
if  he  thinks  that  in  the  state  of  public  feeling  a  fair 
trial  cannot  be  obtained  in  the  place  where  an  offence 
would  ordinarily  be  tried,  to  order  that  the  trial  be 
held  elsewhere 

Where,  however,  the  Governor-General  refuses  to 
make  such  an  order,  the  refusal  cannot  be  held  to 
amount  to  a  violation  of  the  principles  of  natural 
justice  so  as  to  enable  their  Lordships  of  the  Privy 
Council  to  interfere  with  the  result  of  the  trial. 

Questions  as  to  the  sufficiency  of  evidence  or  the 
adequacy  of  the  Judge's  charge  to  the  Jury  cannot 
come  within  the  ambit  of  the  rule  laid  down  as  to  the 
disregard  of  the  forms  of  legal  procesi  or  violation 
Qt  the  principles  of  natural  justice. 


0. 1926j 


AKBAR  ALT  V,  BMPBBOlt, 


218 


Messrs.  John  Simon,  G.  R.  Lowndes,  J.  M. 
Parikh  and  22.  R,  Pillai>  for  the  Petitioners. 

Messrs.  Dunne  and  K.  Brown}  for  the 
Respondent. 

JUDGMENT. 

Lord  Dunedin.—  Their  Lordships 
have  repeatedly  announced  that  in  dealing 
with  petitions  for  special  leave  to  appeal 
against  sentences  pronounced  in  the  Crimi- 
nal Courts  of  the  various  Dominions  of  the 
King,  they  will  not  act  as  a  Court  of  Crimi- 
nal Appeal  and  will  not,  to  use  the  words  of 
Lord  Watson  in  In  re  Dillet  (1)  advise  His 
Majesty  to  "review  or  interfere  with  the 
course  of  criminal  proceedings,  unless  it  is 
shown  that,  by  a  disregard  of  the  forms  of 
legal  process,  or  by  some  violation  of  the 
principles  of  natural  justice,  or  otherwise, 
substantial  and  grave  injustice  has  been 
done." 

In  the  present  case  the  first  point  urged 
by  the  petitioners  is  that  there  had  been 
such  copious  and  prejudicial  newspaper 
comment  on  the  crime  committed  that  a 
fair  trial  by  a  Jury  was  impossible  in 
Bombay. 

It  is  in  the  power  of  the  Governor- Gene- 
ral of  India  if  he  thinks  that  in  the  state 
of  public  feeling  a  fair  trial  could  not  be 
obtained  in  the  place  where  the  offence 
would  ordinarily  be  tried,  to  order  that  the 
trial  be  held  elsewhere.  An  application 
was  made  to  him  to  so  order  and  was 
refused.  To  ask  the  Board  to  declare  that 
such  a  refusal  of  the  Governor- General, 
who  had  all  the  advantages  of  being  in  the 
country  and  of  judging  of  the  real  state 
of  public  feeling,  amounted  to  a  violation 
of  the  principles  of  natural  justice  is  noth- 
ing less  than  preposterous,  and  their  Lord- 
ships cannot  too  strongly  qualify  the  im- 
propriety and  uselessness  of  such  a  demand. 

As  regards  the  other  grounds  in  the  case 
of  the  first  six  petitioners,  they  are  all 
questions  as  to  the  sufficiency  of  evidence 
—fit  for  consideration  by  a  Court  of  Crimi- 
nal Appeal,  but  falling  far  short  of  the 
definite  dictum  quoted. 

The  case  of  the  remaining  petitioner 
which  at  first  sight  might  seem  different, 
is,  when  more  closely  looked  at,  just  the 
same.  He  was  not  present  at  the  scene  of 
the  assault  and  murder  and  consequently 
the  offence  of  which  he  was  found  guilty 
was  abetment  of  murder.  The  point  that 
was  sought  to  be  urged  by  his  Counsel  was 

41)  (1887)  12  A.  C.  459;  56  L,  T/615;  36  W.  R.  81;  16 
Cox  0.  0,  241. 


that  the  charge  of  the  learned  Judge  did 
not  adequately  bring  home  to  the  Jury  that 
abetment  of  murder  could  not  be  properly 
inferred  from  a  conspiracy  to  kidnap  unless 
the  natural  result  of  the  attempt  to  kidnap 
was  murder.  The  learned  Judge  in  tho. 
course  of  his  charge  used  these  words  after 
explaining  s.  Ill  of  the  Penal  Code:— 

"I  merely  emphasise  once  more  that  the 
crucial  point  as  regards  the  applicability 
of  that  section  is  whether  that  which  is 
done  was  a  probable  consequence  of  the 
abetment;  was  it  a  probable  consequence  of 
the  conspiracy  into  which  accused  Xo.  0 
had  entered  that  Bawla  would  be  mur- 
dered on  the  night  of  January  the  12th? 
Unless  you  can  so  find,  that  charge  of 
murder  cannot  be  established.11 

And  he  specially  left  it  to  them  to  say 
whether  after  finding  conspiracy  they 
"could  go  the  length  of  saying  that  the 
probable  consequence  of  the  conspiracy 
was  the  murder  of  Bawla  and  the  attempt- 
ed murder  of  Lieutenant  Ssegert.111  If  this 
were  a  Court  of  Criminal  Appeal  it  would 
be  difficult  indeed  to  say  that  this  advice 
to  the  Jury  was  not  adequate  to  the  situa- 
tion. Still,  it  would  be  a  question  for  a 
Court  of  Criminal  Appeal.  Here  the  mo- 
ment that  adequacy  is  raised  in  reference 
to  such  advice  the  case  of  the  petitioners 
is  gone;  for  who  could  possibly  say  that  the 
adequacy  or  otherwise  could  amount  to  a 
"disregard  of  the  forms  of  process  or  vio- 
lation of  the  principles  of  natural  justice1'? 
The  averment  fails,  just  as  the  averments 
in  the  other  cases  failed. 

Their  Lordships  will  humbly  advise  Mis 
Majesty  to  refuse  the  prayer  of  all  the 
petitioners.  Prayer  refused. 

z.  K. 

Solicitors  for  the  Petitioners:  Messrs.  T. 
L.  Wilson  and  Co. 

Solicitor  for  the  Crown  :  Solicitor  India 
Office. 


LAHORE  HIGH  COURT. 

CRIMINAL  REVISION  No.  853  OF  1925. 

August  8,  1925. 

Present:— Mr.  Justice  Jai  Lai. 
AKBAR  ALT  AND  OTHERS — CONVICTS 
PETITIONERS 

versus 

EMPEROR— RESPONDENT. 
penal   Code  (Act    XLV  of   I860),  ss.   8Wt 


514 


In  the.  matter  of  K.  M.  FIRST  GRADE 


[92 1.fl.  1926] 


\Vronyful  confinement— Whereabouts  of  person  confined 
not  concealed— Offence 

The  intent  to  cause  the  person  abducted  to  be  secretly 
and  wrongfully  confined  is  an  essential  element  of  an 
offence  under  8.  3G5  of  the  Penal  Code 

Accused  wrongfully  confined  their  sister  but  her 
whereabouts  were,  not  concealed  from  her  other  re- 
latives and  persons  interested  in  her 

Held,  that  the  accused  were  guilty  of  an  offence 
under  s  342  of  the  Penal  Code  but  not  of  an  offence 
under  8  365  of  the  Code. 

Petition  for  revision  of  the  order  of  the 
Sessions  Judge,  Jhelum,  dated  the  7th  May 
1925,  modifying  that  of  the  Magistrate, 
First  Class,  Chakwal,  dated  the  31st  March 
1925. 

Dr.  Nand  La/,  for  the  Petitioners. 

JUDGMENT*— Musammat  Siftan  is  a 
sister  of  Akbar  Ali  and  Abdul  Rahman 
petitioners  and  a  cousin  of  Nur  petitioner. 
It  has  been  found  by  the  learned  (Sessions 
Judge  that  Musammat  Siftan  was  divorced 
by  her  former  husband  Ghulam  Kadir. 
She  was  living  in  the  house  of  her  aunt,  and 
it  appears  that  she  proposed  to  marry  one 
Bakhsh.  This  marriage  was  not  acceptable 
to  the  petitioners.  They,  therefore,  went 
to  the  house  in  which  Musammat  Siftan 
was  living  and  carried  off  Musammat  Siftan 
against  her  will  and  kept  her  in  confine- 
ment. On  these  findings,  the  petitioners 
have  been  convicted  under  s  365,  Indian 
Penal  Code.  That  section  makes  punish- 
able the  offence  of  abduction  with  intent 
to  cause  the  person  abducted  to  be  secretly 
arid  wrongfully  confined.  There  is  no 
doubt  that  on  the  findings  of  the  learned 
Sessions  Judge  Musammat  Siftan  was 
wrongfully  confined,  but  it  is  contended 
by  the  learned  Counsel  for  the  petitioners 
that  under  the  circumstances  it  could  not 
be  held  tlmt  Musammat  Siftan  was  secretly 
confined.  In  this  contention  of  the  leaincd 
Counsel  1  agree.  There  is  nothing  to  show 
that  the  whereabouts  of  Musammat  Siftan 
were  concealed  by  her  brothers  and  the 
cousin  from  the  other  relations  or  from  the 
person  interested  in  Musammat  Siftan. 
The  offence  of  the  petitioners,  therefore, 
amounts  to  one  of  wrongful  confinement. 
Accepting  the  petition  1  alter  the  convic- 
tion to  one  under  s.  342  and  reduce  the 
sentence  of  imprisonment  to  that  already 
undergone. 

The  sentence  of  fine  will  be  set  aside. 
%.  K.  Sentence  reduced. 


MADRAS  HIGH  COURT. 
FULL  BENCH. 

July  31,  1923. 

Present :— Sir  Walter  Salis  Schwabe,  KT., 
Chief  Justice,  Mr.  Justice  VictorMurray 
Coutts-Trotter  and  Mr.  Justice 

Krishnan. 

In  the  matter  of  MR.  K.  M.,  FIR&T  GRADE 
PLEADER,  CHALAPURAM,  CALICUT 

AND 

In  the  matter  o-f  MR.  U.  G.,  FIRST  GRADE 
PLBADER,  KALLAI,  CALICUT. 

Legal  Practitioners  Act  (XVIII  of  1879),  ss  7,  13  - 
Legal  practitioner— Civil  disobedience— Sanad,  re- 
newal of. 

While  the  High  Coiut  will  not  interfere  with  or 
have  regard  to  any  man's  political  opinions  or  opinions 
on  public  questions,  it  is  impossible  to  allow  a  person, 
who  proclaims  or  practices  what  is  called  the  doctrine 
of  "civil  disobedience",  to  ask  to  1)6  part  of  the 
maahinei  y  of  the  Com  ts  which  exist  for  the  very 
purpose  of  the  '  ril  disobedience  and  the 

enforcement  of  He  may  be  a  perfect- 

ly honourable  man  ,  he  may  act  from  conscientious 
motives  ,  he  may  in  conceivable  circumstances  be  a 
patriot  It  maybe  imagined  that  he  should  not  be 
punished  or  even  prosecuted  for  holding  or  expressing 
these  opinions  but,  however,  admirable  a  person  he  may 
be,  he  cannot  consistently  with  his  professions,  ask 
to  be  considered  and  to  be  adopted  as  a  legal  practi- 
tioner, that  is,  as  paitof  the  machinery  of  the  High 
Court  for  enforcement  of  law  and  order  [p.  215,  col.  1 J 

Mr.  A.  Krishnaswami  Aiyar,  for  hoth 
Pleaders. 

Messers.  K.  Kuttikrishna  Menon,  V.  V. 
Srinivasa  Aiyangar,&r\d  T.  R  Ramachandra 
Aiyar,  for  the  Vakil's  Association. 

JUDGMENT. 

Schwabe,  C.  J.— I  think  these  cases 
have  been  very  properly  "brought  before  the 
Court,  so  that  the  two  Pleaders,  Mr.  K.  M. 
and  Mr.  U.  G  may  have  the  opportunity  of 
explaining  to  the  Court  the  circumstances 
relating  to  their  imprisonment  on  the 
charges  that  were  made  against  them,  and 
I  think  they  have  now  stated  very  fully,  and 
I  am  prepared  to  say  very  fairly,  the  facts 
of  their  respective  cases.  They  both  dis- 
claim and  disavow  any  intention  at  all  of 
either  disobeying  the  District  Magistrate's 
orders,  or  of  in  any  way  paralysing  the  ad- 
min Lstration  of  justice.  They  express  regret 
that  in  the  one  case  the  sending  out  of  a 
telegram  to  the  press ;  and  in  the  other  case 
the  refusal  to  sign  a  statement  before  the 
Magistrate  have  been  understood  to  show  a 
spirit  of  disaffection  or  an  intention  either 
to  disobey  the  orders  of  the  duly  constituted 
authorities  or  in  any  way  to  paralyse  the 
administrate  of  justice.  I  think  thaUwe 
can  accept  their  statements  as  befog 


U. 


TOL9I  v.  BMmoa. 


215 


fate  and  accept  their  expressions  of  regret 
as  being  genuine  and,  under  the  circum- 
stances I  think  that  we  can  quite  properly 
order  the  sanad  to  be  issued  to  these  two 
Pleadere. 

In  both  cases  our  attention  was  also  called 
to  a  minor  offence  of  having  engaged 
themselves  in  another  profession  while  they 
were  still  Pleaders  It  appears  that  they 
had  not  renewed  their  sanads  when  they 
took  up  their  respective  occupations  on  the 
press,  It  appears  also  that  the  work  was 
done  mainly  without  any  sort  of  remunera- 
tion a  matter  which  can  without  difficulty 
be  overlooked. 

In  these  circumstances,  the  sanads  will  be 
issued. 

Coutts-Tf»ottei%  J.— I  am  of  the  same 
opinion.  All  the  concern  that  I  have  had 
in  this  or  in  any  of  these  cases  is  to  make  it 
as  plain  as  any  language  of  mine  can  make 
it  that,  while  this  Court  will  not  interfere 
with  or  have  regard  to  any  man's  political 
opinions  or  opinions  on  public  questions,  it  is 
impossible  to  allow  a  person,  who  proclaims 
or  practices  what  is  called  the  doctrine  of 
"Civil  disobedience11,  to  ask  to  be  part  of  the 
machinery  of  the  Courts  which  exist  for  the 
very  purpose  of  the  thwarting  of  civil  dis- 
obedience and  the  enforcement  of  civil 
obedience.  He  may  be  a  perfectly  honour- 
able man  ;  lie  may  act  froai  conscientious 
motives ;  he  may  in  conceivable  circum- 
stances be  a  patriot.  It  may  be  imagined  that 
he  should  not  be  punished  or  even  pros^cut- 
ed  for  holding  or  expressing  these  opinions. 
All  our  business  is  to  say  that,  however,  ad- 
mirable a  person  he  may  be,  he  cannot  con- 
sistently with  his  professions,  ask  to  be  con- 
sidered and  to  be  adopted  as  part  of  the 
machinery  of  this  Court  for  enforcement 
of  law  and  order.  But  I  am  satisfied  now, 
I  confess  I  was  not  before  from  their  last 
statements,  that  the  intention  of  these 
gentlemen  is  to  give  an  assurance  to  this 
Court,  which  T  hold  the  Court  is  entitled 
to  demand,  that  they  are  not  arid  do  not 
in  the  future  intend  to  be,  exponents  of 
the  doctrine  of  civil  disobedience. 

For  these  reasons,  I  agree  with  my  Lord 
that  sanads  may  be  properly  issued  to  them. 

Krishnan,  J.— I  also  agree  with  the 
opinion  of  the  learned  Chief  Justice  and 
that  qf  my  learned  brother  Coutts  Trotter 
that  in  these  two  cases  we  should  not  with- 
hold the  sanad.  I  do  not  think  it  necessary, 
after  what  fell  from  the  Chief  Justice  with 


which  I  entirely  agree,  that  1  need  say  any- 
thing more. 

I  agree  to  the  order  proposed. 

Schwabe,  C.  J.— I  should  like  to  add 
that  I  agree  entirely  with  what  has  just  fallen 
from  my  learned  brother  Coutts  Trotter, 

N.  H,  Sanads  granted. 

LAHORE  HIGH  COURT* 

CRIMINAL  REVISION  No.  675  OF  1925. 

June  12,  1925. 

Present: — Mr.  Justice  Abdul  Raoof. 
TULSI  AND  OTHERS— ACCUSED— PETITIONERS 

versus 
EMPEROR— RESPONDENT. 

Practice — Dispute  of  civil  nature  —Procedure 
Tho  complainant  had  mortgaged  some  land  to  the 
accused.  The  accused  churned  that  the  mortgage  was 
with  possession,  wluio  the  complainant  said  it  wan 
not  One  day  the  complainant  found  the  accused 
ploughing  the  land,  lemorishated  with  him,  and  was 
assaulted.  The  Magistrate  convicted  the  accused  and 
sentenced  him  to  a  line  under  s  323,  Penal  Cod*'  • 

Held,  that  the  dispute  between  the  parties  being  of 
a  civil  nature,  the  M  j  •  ••  ild  have  exercised  a 
better  discretion  hi  ..*  •  the  complainant  to 
soek  lua  remedy  fro'ii  a  Civil  Court  [p  216,  ml  2] 

Petition  for  levision  of  an  order  of  the 
District  M  /M  V  •  ttohtak,  dated  the  9th 
March  ]•':>.">  .,•'•:!:•  .;  that  of  the  Tahsildar 
Magistrate,  Second  Class,  Jhajjar,  District 
Rohtak,  dated  the  5th  February  1925. 

Mr.   Shamair  Chand,  for  the  Petitioners. 

JUDGMENT.— The  petitioners  before 
me  have  been  convicted  under  s  323  of  the 
Indian  Penal  Code  and  have  been  sentenced 
to  payea  fine  of  R*.  15,'each.  The  facts  giv- 
ing rise  to  the  prosecution  are  as  fellows;— 

The  complainant  mortgaged  some  land 
to  the  petitioner  Tulsi  for  Rs.  250  for  a 
term  of  two  years.  On  the  7th  September 
1924,the  complainant  brought  a  case  against 
the  petitioners  charging  them  with  the 
same  offence  with  which  he  has  charged 
them  in  the  present  case.  That  camplaint 
was  dismissed  after  enquiry  under  s.  203 
of  the  Or.  P.  C.  On  the  19th  September 
1924,  this  offence  is  alleged  to  have  been 
committed.  He  made  a  report  at  the 
Bahadur  Garh  thana  that  Tulsi  and  Munshi 
had  beaten  him  with  slaps  and  fists.  In 
that  report  he  did  not  mention  the  names 
of  Sudhan  and  Ram  Singh.  The  complain- 
ant was  directed  to  file  a  formal  complaint 
in  Court  Thereupon  the  complaint  was 
instituted  under  s.  323,  Indian  Penal  Code, 

Two  witnesses  were  produced  in  support 
of  the  prosecution  and  both  of  them  wete 
closely  related  to  the  complainant.  The 
real  dispute  between,  the  parties  was 


§10 


AMI^TJDDIN  V. 


ther  the  IA";  ir?  1  r.o:  'pnsr.  was.with  posses- 
sion and  ;•  ii-:/!1:.  •••  were  entitled  to 
plough  the  land  mortgaged,  Tulsi  was 
found  ploughing  the  land  and  the  com- 
plainant remonstrated  with  him,  when  the 
alleged  assault  was  made  The  case  for 
the  complainant  was  that  the  mortgage 
was  without  possession  and  Tulsi  and  the 
co-accused  had  wrongfully  taken  possession 
of  the  mortgaged  land,  The  pativari  has 
stated  that  the  complainant  himself  had 
reported  to  him  that  the  mortgage  was 
with  possession  and  he  had  consequently 
made  a  report  recommending  the  mutation 
of  the  mortgagees'  name.  The  complain- 
ant was  cross-examined  on  the  point.  His 
statement  has  been  read  to  me  which 
goes  to  show  that  the  mortgage  was  in- 
tended to  be  one  with  possession.  The 
mutation  report  was  also  made  on  that 
hypothesis  andr  although  mutation  has  not 
yet  been  sanctioned  it  appears  that  the 
mortgage  was  with  possession.  Under 
these  circumstances  if  the  mortgagee  had 
taken  possession  the  complainant  had  no 
business  to  interfere  with  it. 

From  the  facts  disclosed  it  appears  that 
the  mortgagee  and  his  companions  used 
force  in  the  exercise  of  their  right  of  pri- 
vate defence.  Having  regard  to  the  history 
of  the  dispute  bet-ween  the  parties  it  ap- 
pears that  the  matter  was  very  much  ex- 
aggerated by  the  complainant.  Over  and 
above  all  that  has  been  said  above  the  dis- 
pute between  the  parties  appears  primaiily 
to  be  one  of  civil  nature,  and  the  Magis- 
trate would  have  exercised  a  better  dis- 
cretion if  he  had  directed  the  complainant 
to  seek  his  remedy  from  a  Civil  Court. 
The  case  against  the  petitioners  appears  to 
be  of  a  doubtful  nature.  I,  therefore,  give 
the  benefit  of  the  doubt  to  the  petitioners 
and,  accepting  the  petition  for  revision, 
set  aside  their  convictions  and  direct  that 
the  fines,  if  paid,  be  refunded. 

N.  H.  Petition  accepted. 

CALCUTTA  HIGH  COURT. 

CRIMINAL  REVISION  No.  436  OF  1924. 

July  22,  1924. 

Present: — Sir  Lancelot  Sanderson,  KT., 
Chief  Justice,  and  Justice  Sir  Hugh 

Walmsley,  KT. 

AM1RUDDIN  AND  OTHERS— ACCUSED  — 
PETITIONERS 

versus 
EMPEROR—OpposiTE  PARTY. 

Penal  Code  (Act  XLV  af  I860),  99,  ?1}    ltft  Itf  jtf 


:.  0. 1826] 

:—  Separate 


—Rioting  and-  wrongful 
ences,  legality  of. 

Members^ of  an  unlawful  assainbly  -who  attack  a 
person  and* then  take  him  and  confine  him  in  a  house 
cannot  be  given  separate  sentences  under  s.  147,  and 
a  342  read  with  s.  149,  Penal  Code,  by  virtue  of  6.  71 
of  the  Code. 

Criminal  revision  against  an  order  of  the 
Sessions  .Tnfl£r<»  TVi»iri  nndBogra,  dated  the 
23rd  Apri!  l!»21.«rt:rsiii'iL"that  of  the  Deputy 
Magistrate,  Sirajgunji  (Jated  the  4th  March 
W24. 

FACTS*— 'The  accused  in  this  case 
came  armed  with  lathis  and  attacked  the 
complainant  who^was  ploughing  his  field. 
The  latter  made  for  a  house,  where  he  was 
caught.  He  was  then  taken*  to,  and  con- 
fined in,  another  house:  The  accused  were 
given  separate  sentences  for  rioting  and 
wrongful  confinement. 

Mr.  Dinesh  Chunder  Roy,  for  the  Peti- 
tioners. 

JUDGMENT. 

Sanderson,  C.  J,— This  is  a  Rale 
granted  by  two  of  my  learned  brothers 
calling  upon  the  District  Magistrate  to  show 
cause  why  tke  conviction  and  sentence  pass- 
ed on  the  petitioners  Salimuddy  Pramanik, 
Gani  Pramanik  and  Kazam  Pramanik  under 
s*  312  read  with  s.  149  should  not  be  set 
aside  on  the  7th  ground  stated  in  the  peti- 
tion. 

The  7th  ground  was  that  the  order  of 
separate  sentence  passed  on  the  petitioners 
was  illegal. 

The  learned  Vakil  has  stated  that  he  can- 
not argue  that  the  conviction  should,  be  set 
aside ;  and  he  has  confined  his  argument 
to  the  question  whether  the  imposition  of 
separate  sentence  under  s.  342  read  with 
s.  149  was  illegal.  We  are  of  opinion  that 
it  was,  by  reason  of  the  prpvisions  of  s.  71, 
Indian  Penal  Code. 

Consequently,  the  Rule  should  be  made 
absolute  and  the  sejitence  of  three  weeks' 
rigorous  imprisonment  under  s.  342/149 
must  be  set, aside. 

We  draw  the  attention  of  the  lower  Court 
to  the  case  of  Alim  Sheikh  v.  Shahazada  (i) 
and.  also  to  the  <?ase  of  fCeamuddi  Karika.r 
v.  Emperor  (2). 

The  bail  bonds  of  the  petitioners,  will  be 
cancelled. 

Walmsley,  J,-— I  agree. 

N.  H.  Rule  made  absolute. 

(1)80.  W.  N.  483;  1  Or.  L.  J.  36"). 

(2)  81  Ind.  G*s.  593,  5iO.  79,  28  C.  W.  N.  347;  25 
Or,  1*.  J,  945;  (19514)  A.  I..R.  'C )  771. 


[48 1, 0. 1926J 


HART  SINGH  V,  EMPEKOR. 


217 


LAHORE  HIGH  COURT. 

CKIMINAL  APPEAL  No.  665  OP  1925. 

-.September  12,   li>25. 
Present:—  Mr.  Justice  Z&far  AH  and 

Mr.  Justice  Jai  Lai. 

HARI  SINGH  AND  OTHBRS— CONVICTS — 

APPELLANTS 

versus 

EMPEROR-RESPONDENT. 

Penal  Code  (Act  XLV  of  2860),  ss  US,  302-Rioting 
— Deadly  weapons— Death  caused  by  blows  --Offence. 

Accused,  five  in  number,  assembled  at  a  canal  water- 
head  to  divert  water  by  force  and  aimed  themselves 
with  deadly  weapons  to  strike  and  vanquish  anybody 
who  should  stand  in  their  way  and  prevent  them  from 
accomplishing  their  purpose.  The  party  of  the  deceased 
remonstrated  with  the  accused  whereupon  the  accused 
assaulted  them  with  their  weapons  and  caused  the 
death  of  the  deceased- 

Held,  (1)  that  the  accused  constituted  an  unlawful 
assembly  and  became  guilty  of  rioting  when  they 
used  their  weapons  in  pursuance  of  their  common 
object;  [p  218,  col.  1  j 

(2)  that  as  every  one  of  the  accused  knew  that  the 
weapons  were  likely  to  be  used  with  deadly  effect, 
they  were  all  responsible  for  the  fatal  injury  inflicted 
on  the  deceased,  [p.  218,  cols.  1  &  2.] 

Appeal  from  an  order  of  the  Sessions 
Judge,  Ferozepore,  dated  the  18th  May 
1925. 

Lala  Moti  Sagar,  R.  B ,  and  Mr.  Bal 
Molcand  Vaid,  for  the  Appellants. 

Mr.  Des  Raj  Sawhney,  Public  Prosecutor, 
for  the  Respondent. 

JUDGMENT.— The  two  brothers  Hari 
Singh  and  Indar  Singh  and  their  uncle  Sher 
Singh  have  been  convicted  by  the  Sessions 
Judge  of  Ferozepore  of  the  murder  of  one 
Jaimal  Singh  Jat  and  along  with  two 
others,  namely,  Sawal  and  Ganesha,  they 
have  further  been  convicted  of  rioting 
under  s.  148,  Indian  Penal  Code.  All  five 
have  Hied  a  joint  appeal  through  Mr.  Moti 
Sagar  and  the  case  is  also  before  us  under 
s.  374,  Or.  P.  0.,  for  confirmation  of  tho 
capital  sentence  passed  upon  Hari  Singh. 

The  first  three  appellants  are  Kumhars, 
i.  e.t  potters  by  caste  but  are  .:•;  .'  •*••••• 
by  avocation.  Of  the  remaining  two,  Sawal 
is  a  Bagri  Jat,  and  Ganesha  a  Bania.  They 
are  all  residents  of  the  village  Mithri, 
District  Ferozepore.  All  these  appellants 
set  up  alibis,  but  produced  no  evidence 
whatsoever  and  thus  left  the  prosecution 
evidence  quite  unrebutte j.  Their  Counsel 
could  do  no  better  than  to  urge  that  the 
prosecution  evidence  was  unreliable,  and 
he  advanced  the  argument  that  the  appel- 
lants could  not  be  held  guilty  of  rioting 
because  they  fought  ia  defence  of  their 


right  to  use  the  water  of  which  they  were 
already  in  possession  and  further  contended 
that  the  charge  of  murder  was  not  estab- 
lished against  any  one  of  the  appellants 
who  have  been  held  guilty  of  that  offence. 
But  he  could  refer  to  no  material  on  the 
record  in  support  of  any  of  the  questions 
of  fact  or  law  that  he  raised  and  argued 
before  us,  and  as  will  presently  be  shown 
he  failed  to  make  out  any  of  his  points. 

The  account  of  the  fatal  event  given  by 
the  eye-witnesses  may  be  summarised 
thus  :— On  the  13th  October  1924  at  about 
rotiwda  (noon)  Dayal  Singh  (P.  W.  No.  7) 
with  his  18  years  old  son  Mar  Chand  Singh 
(P.  W.  No.  8)  was  directing  the  irrigation 
of  his  field  No.  343  about  5  bighas  in  area 
when  the  How  of  water  ceased  all  of  a 
sudden  and  he  heard  a  shout  from  Hari 
Singh  who  was  at  the  water-head  about 
half  a  mile  away  to  the  following  effect: — 
*4  We  have  diverted  your  water,  come  and 
do  what  you  like  about  it  "  Dayal  Singh 
proceeded  to  the  water-head  accompanied 
by  his  son  Har  Chand  Singh  who  was 
empty  handed  but  Dayal  Singh  carried  a 
kahi  with  which  he  had  been  regulating 
the  initrslioii  Bhaggu  Singh  (P.  W. 
No.  1U)  with  hiaSiri  Wayamanand  brother- 
in-law  Saudagar  followed  Daval  Singh  and 
Hav  Chand  Singh  from  a  neighbouring 
field  to  see  what  would  happen.  As  Dayal 
Singh  got  to  the  water-head  he  found  the 
water  diverted  into  Hari  Singh's  cotton  field. 
All  the  five  appellants  were  standing  there 
armed  with  chhavis.  Dayal  Singh  asked 
them  why  they  had  diverted  his  water. 
Hari  Singh  replied  "we  have  stopped  your 
water.  We  do  not  care  whether  it  is  your 
turn  or  not.  Take  it  if  you  can.'* 

Djyal  Singh  proceeded  to  re-open  his 
channel  whereupon  Ganesha  struck  him  on 
the  head  with  a  chhavi  and  next  Sawal 
struck  him  with  a  chhavi.  At  this  stage 
Jaimal  Singh  brother  of  Dayal  Singh,  who 
had  come  up  from  his  field  near  there, 
interfered  on  behalf  of  his  brother  and 
shouted  to  the  appellants  not  to  strike  his 
brother.  Thereupon  Hari  Singh  struck 
Jaimal  Singh  on  the  head  with  his 
chhavi  and  then  Indar  I  Singh  inflicted  a 
chhavi  Mow  on  his  head.  Jaimal  Singh 
dropped  down  and  as  he  did  so  Sher 
Singh  struck  him  on  his  left  arm  with  a 
chhnvi. 

The  above  version  was  given  in  the  First 
Information  Report  and  was  supported  by 
all  the  eye-witnesaes  who  appeared  in  the 


218 


HART  siNaH>.  BMPEROR. 


witness-box,  and  the  learned  Sessions 
Judge  came  to  the  conclusion  that  it  was 
substantially  true.  Further,  there  was  the 
evidence  that  it  was  Dayal  Singh's  turn  to 
the  use  of  the  water  and  that  the  appellants 
had  not  even  a  shadow  of  a  claim  to  take 
the  water  at  that  stage.  The  appellants 
made  no  attempt  to  refute  even  this  point. 
Their  Counsel  in  the  Court  below  con- 
tended himself  with  urging:  — 

(1)  that  the  eye-witnesses  were  unworthy 
of  credit  because  they  were   all  connected 
with  each  other  and  Sahib  Singh  lambardar 
(P.  W.  No.  13) ; 

(2)  that  there  was  an  unnecessary   delay 
in  making  the  First  Information  Report ; 

(3)  that  an  inference  unfavourable  to  the 
prosecution   should  be   drawn    from    their 
failure  to  produce  two  of  the   eye  witnesses, 
namely,  Karam  Singh  and   Wayarnan  ;  and 

(4)  that   the    prosecution    story  was   in- 
herently improbable. 

The  learned  Sessions  Judge  in  his 
judgment  considered  all  these  contentions 
and  overruled  them  for  reasons  which 
appear  to  us  to  be  unanswerable  and  which 
we  do  not  consider  it  necessary  to  repeat 
here.  But  he  accepted  one  contention,  viz.<> 
that  the  attack  on  Jaimal  Singh  was  not 
made  in  pursuance  of  the  common  object 
of  the  unlawful  assembly  and  that,  therefore, 
only  those  members  of  the  aseembly  who 
actually  made  the  assault  upon  Jaimal 
Singh  were  responsible  for  it  Miid  not  the 
rest.  There  is  no  appeal  from  his  order 
acquitting  Sawal  and  Ganeshaof  the  charge 
of  murder  and,  therefore,  we  need  not 
express  any  opinion  with  regard  to  the 
validity  or  otherwise  of  this  conclusion  of 
the  learned  Sessions  Judge,  but  we  agree 
with  him  that  the  prosecution  version  is 
substantially  true  and  that  the  defence 
have  entirely  failed  to  show  that  that 
evidence  was  unworthy  of  belief.  From 
the  facts  thus  established  by  the  prosecu- 
tion it  follows  that  the  five  appellants  had 
assembled  at  the  water- head  to  take  water 
by  force  ami  had  armed  themselves  with 
deadly  weapons  to  strike  and  vanquish 
anybody  who  should  stand  in  their  way  and 
prevent  them  from  accomplishing  their 
purpose.  This  being  so,  UieM>  five  men 
constituted  an  unlawful  assembly  and  be- 
came guilty  of  rioting  when  they  ined  their 
deadly  weapons  in  pursuance  of  their  com- 
mon object,  Further,  as  every  one  of  them 
knew  that  these  weapons  were  likely  to  be 
used  with  deadly  effect,  they  were  all 


[92  I  0.  1926] 

responsible  if  any  one  of  them  inflicted  a 
fatal  in  jury. 

The  mainstay  of  the  defence  was  a  judg- 
ment of  a  Division  Bench  of  this  High  Court 
reported  as  Baga  Singh  v.  Emperor  (1)  which 
was  relied  upon  and  referred  to  before  the 
Sessions  Judge  and  again  before  us;  but 
thab  was  quite  a  converse  of^the  present  case. 
The  distinguishing  features  are  that  there 
in  the  first  place  the  water  was  diverted  in 
the  bona  fide  belief  that  the  turn  of  the  man 
who  had  been  taking  the  water  had  expired. 
Secondly,  it  was  next  the  turn  of  the  man 
who  diverted  the  water,  and  thirdly,  it  was 
the  latter  who  was  attacked  first  and  had  re- 
ceived injuries  before  he  shot  his  assailant 
and  killed  him.  Jn  the  present  case  Dayal 
Singh  was  entitled  to  irrigate  the  whole  of 
his  fields  of  5  bighas  but  he  had  hardly 
irrigated  2  bighas  when  the  water  was 
diverted.  Thus  it  was  wrongfully  divert- 
ed before  time  and  by  a  person  who  had  no 
right  to  take  the  water  at  that  stage,  as  the 
turns  of  solera!  otheis  intervened  between 
his  turn  mei  that  of  Dayal  Singh. 

It  is  crear  from  what  has  been  stated 
above  that  the  appellants  at  first  made  a 
preparation  for  an  attack  and  subsequently 
resorted  to  force  to  carry  out  their  wrong- 
ful purpose.  The  common  object  of  the 
assembly  undoubtedly  was  to  defend  by 
use  of  violence  their  act  of  diverting  the 
water  which  was  a  wrongful  act.  The 
amoutit  of  violence  that  they  all  intended 
to  use  or  knew  would  likely  be  used  is  to 
be  inferred  from  the  nature  of  the  weapons 
with  which  they  came  aimed.  As  they  all 
knew  that  the  weapons  would  be  used  and 
that  if  used  mortal  injuries  would  very 
likeiy  be  indicted,  every  one  of  them  who 
joined  the  assembly  with  that  guilty  know- 
ledge was  liable  to  be  held  responsible  for 
thi  use  of  those  weapons  by  any  of  them. 
Tile  argument  that  the  appellants  were  not 
thcj  aggressors  because  having  already 
taken  possession  of  the  water  they  were 
entitled  to  resist  by  force  any  attempt  to 
dispossess  them  thereof  is  obviously  fal- 
lacious, because  having  uo  right  to  take 
the  water  at  that  time  their  act  of  diverting 
it  was  wrongful  and  quite  unjustified  and 
the  rightful  person  was  entitled  to  recover 
what  he  had  lost  by  a  wrongful  act. 
Further  there  is  nothing  to  show  that  the 
appellants  had  any  reason  to  apprehend 
any  injury  at  the  hands  of  Dayal  Singh,  nor 

(1;  81  hid.  Cas,  113;  25  Cr.  L.  J.  025;  (1025)  A,  I.  R% 


[92  1.  0,  1926] 

ia  there  anything  to  indicate  that  Dayal 
Singh  and  his  brother  made  any  show  of 
criminal  force.  It  was,  therefore,  a  very 
wanton  attack  that  the  appellants  made  to 
restrain  Dayal  Singh  from  diverting  the 
water  to  his  field,  and  to  chastise  his  brother 
for  raising  a  voice  on  his  behalf.  We,  there- 
fore, come  to  the  conclusion  that  Hari 
Singh,  Indar  Singh  and  Sher  Singh  have 
rightly  been  held  guilty  of  the  murder  of 
Jaimal  Singh. 

We  may  here  refer  to  another  contention 
of  the  learned  Counsel  for  the  appellants 
which,  it  appears,  had  not  been  raised  in 
the  Court  below.  The  prosecution  evidence1 
was  that  Hari  Singh  and  Indar  Singh 
inflicted  one  chhavi  blow  each  on  the  head 
of  the  deceased,  but  the  medical  witness 
after  describing  two  injuries  on  the  head 
stated  that  both  were  practically  the  result 
of  a  single  blow.  On  strength  of  this 
opinion  of  the  medical  witness  the  learned 
Counsel  contended  that  the  deceased  receiv- 
ed only  one  chhavi  blow  on  the  head,  that 
it  could  not  be  said  which  of  the  two 
appellants  Hari  Singh  and  Indar  Singh 
dealt  that  blow,  and  that,  therefore,  neither 
of  them  could  be  held  responsible  for  it. 
We  have  already  held  that  all  the  appel- 
lants who  were  armed  with  chhavis  and 
attacked  the  deceased  were  responsible  for 
his  death  and  this  contention,  therefore, 
falls  to  the  ground,  but  we  may  point  out 
with  regard  to  it  that  the  Police  Officer  who 
arrived  at  the  spot  and  examined  the  body 
of  the  deceased  found  two  wounds  on  his 
head  and  noted  their  lengths  in  the  inquest 
report  as  well  as  in  the  statement  of 
injuries  which  he  prepared  on  the  spot. 
The  medical  witness  also  did  not  positively 
state  that  there  was  only  one  injury  on  the 
head  and  we  are  unable  to  understand 
what  he  meant  by  saying  that  the  two 
injuries  were  practically  the  result  of  a 
single  blow. 

As  regards  the  capital  sentence,  we  are 
of  opinion  that  Hari  Singh  who  was  evi- 
dently the  ring-  leader  well  deserves  it,  and 
that  the  lesser  punishment  would  not  meet 
the  ends  of  justice  in  his  case.  We,  there- 
fore, dismiss  the  appeal  of  all  the  convicts 
and  confirm  the  sentence  of  death. 

Appeal  dismissed. 


S1BAN  RAI  r,  BHAQWAT  DA8S. 


210 


K. 


PATNA  HIGH  COURT. 

CRIMINAL  KBVISION  No.  104  OF 

June  12, 1925. 

Present:— Justice  Sir  B.  K.  Mullick,  KT  , 
and  Mr.  Justice  Macpherson. 
bIBAN  RAI— PETITIONER 

versus 

BHAGWAT  DASS  AND  ANOTHER— 
OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1808),  s  J^O— 
Acquittal— Revision-  Interference  by  High  Court. 

Per  Midlick,  J  — The  power  of  interference  in 
revision  with  oidcrs  of  acquittal  should  be  most 
spaiin^ly  exercised  and  only  in  cases  where  it  is 
ui gently  demanded  in  the  interests  of  public  justice, 
for  instance,  where  an  older  of  acquittal  has  been 
made  without  tiial  and  under  an  eiror  of  law  The 
High  Couit  will  not  in  any  case  inteifere  in  revision 
with  an  order  of  acquittal  on  the  ground  that  the 
infeiences  drawn  by  the  lower  (\mrfc  from  evidence 
are  erroneous  [p  *J20,  cols  I  &  2  | 

The  Legislature  does  not  intend  that  a  private  paity 
shall  secure  by  an  application  m  revision  a  right 
which  is  reserved  for  the  Crown  only  The  High 
Court  has  the  ii^ht  to  inteifere  in  revision  with 
ordeis  of  acquittal,  but  will  only  do  so  in  very 
exceptional  cases,  for  instance,  where  there  has  been 
a  denial  of  the  right  of  fair  trial  [p  220,  col.  2  ] 

Per  Uacpherson,  J  --The  High  Court  will,  in 
exercising  its  power  of  revision  against  an  order  of 
acquittal  under  s  4.31)  of  the  Or  P.  C  ,  observe  the 
limitations  winch  established  piactice  has  imposed 
upon  appeals  under  s  417  of  the  Code  But  though 
in  practice  the  broad  rule  of  guidance  that  the  Court 
will  only  interfere  in  revision  with  an  acquittal,  <it 
least  in  a  case  wheie  there  has  been  a  trial,  spanngly 
and  only  where  interference  is  urgently  demanded 
in  the  interests  o£  public  justice,  may  be  accepted, 
no  general  rule  can  be  laid  down  beyond  this  that  the 
Court  will  interfere  wheie  the  circumstances  require 
it.  [P-  22],  col  2J 

Application  against  an  order  of  the  Dis- 
trict Magistrate,  P  .:\  •  .  :-.: ..  dated  the 
6th  January  1925,  setting  aside  that  of 
the  Sub-Deputy  Magistrate,  Samastipur, 
dated  the  17th  November  1924. 

Sir  All  Imam  and  Mr.  S.  A.  Sami,  for 
the  Petitioner. 

Mr.  Sultan  Ahmad,  Government  Advocate, 
for  the  Crown. 

Mr.  Ram  Prasad,  for  the  Opposite  Party. 

JUDGMENT. 

Mullick,  J.— In  this  case  the  Second 
Class  Magistrate  of  Samastipur,  found  that 
Malianth  Ganga  Das  had  title  and  possession 
in  an  asthal  at  Waini  and  that  the  accused 
Bhagwat  Das  and  Narain  Das  had  forcibly 
dispossessed  him  and  committed  criminal 
house  trespass  in  a  building  appertaining 
to  the  asthaL  He,  therefore,  convicted  the 
accused  under  s.  448  of  the  Indian  Penal 
Code  and  sentenced  them  to  a  fine  of  Us.  50 
each, 


820 


SIBAN  RAI  V.  BHAftWAT  DASS. 


In  appeal  the  District  Magistrate  of  Dar- 
hhanga  found  that  the  story  of  forcible 
dispossession  was  false  and  that  Bhagwat 
Das  and  Narain  Das  were  in  possession  and 
that  they  had  successfully  resisted  an  at- 
tempt by  Si  ban  Rai,  the  servant  of  Ganga 
Das,  to  forcibly  evict  them  from  the  asthal. 
He  found  that  the  accused  had  no  right  to 
rita}r  in  the  asthal  against  the  will  of  Ganga 
Das;  but  at  the  same  time  the  case  of  Ganga 
Das  being  false  in  material  particulars,  he 
acquitted  the  accused. 

An  application  in  revision  is  now  made 
before  us  to  set  aside  the  acquittal,  and  the 
question  arises  whether  this  Court  should 
interfere. 

Ganga  Dag  made  an  application  to  the 
Local  Government  requesting  it  to  lodge  an 
appeal  under  s.  417  of  the  Or.  P.  C.,  but  the 
Local  Government  refused  on  the  ground 
that  the  case  was  not  one  of  sufficient  public 


In  now  asking  us  to  interfere  in  revision 
the  petitioner  relies  upon  the  following 
cases  of  the  Calcutta  High  Court;  Hazu  v. 
Raika  Singh  (1),  flora  £  Chandra  Nama  v. 
Qsmanali  (2),  Nabin  Chandra  Chakrabutty 
v.  Rajendra  Nath  Banerjee  (3).  In  these 
cases  a  re-hearing  was  ordered  by  the  Pligh 
Court  on  the  ground  that  there  had  not 
been  a  sufficient  trial  in  the  Court  below; 
the  decisions  were  based  on  the  special 
facts  of  each  case,  but  it  was  not  till  Fau)- 
dar  Thakur  v,  Kasi  Choudhuri  (4)  that  any 
attempt  was  made  to  define  the  piinciples 
upon  which  the  High  Court  will  interfere 
in  revision.  That  case  was  noticed  with 
approval  by  this  Court  in  Gulli  Bhagat  v. 
Narain  Singh  (5)  and  by  a  Full  Bench  of 
the  Madras  High  Court  in  Sankaralinga 
Mudaliar  v.  Narayana  Mudaliar  (6)  and  I 
Ihink  it  is  now  settled  that  the  power  of 
interference  in  revision  should  be  most  spar- 
ingly exercised  and  only  in  cases  where  it 
is  urgently  demanded  in  the  interests  of 
public  justice. 

The  rule,  of  course,  does  not  apply  to  cases 
where  there  has  been  no  trial.  For  instance 

<\)  26  Ind  Cas  170;  18  C.  W.  N  1244;  15  Or.  L.  J 
722. 

(2)  44  Ind.  Cas  337,  27  0  L  J  226;  19  Or.  L,  J.  321. 

(3)  39  Ind   <\is  487,  Ih  (Y  L  J    519. 

(4)  27  Ind  Cas   186,   42  C.  Gi2;  19  C.  W.  N.  184,    21 
C   I,  J  53,   1C  Cr  L  J  122. 

(5)  77  Ind.  0.18    734;  5  J'.  L  T.  404,  2  Pal    708,  25 
Cr  L  J.  446;  (1924)  A.  L  R.  (Tat  )  283,    2   Pat.  L.   JR, 
165  and  187  Cr. 

(6)  68  Ind  Oas  615;  16  L.    W.  413,  43  M    L     J.  369; 
(1!V2?)M.  W.N.  579;   31  M     L.  T.    :i42;  23  Cr,  L,  J, 
583;  (1922)  A,  I,  R.  (M,)  502;  45  M.  913. 


[92 1.  0. 1926] 

in  Jitan  Dusadh  v.  Domoo  Sa/ioo  (7)  this 
Court  set  aside  an  acquittal  hi  revision  be- 
cause an  acquittal  had  been  entered  with- 
out trial  and  under  an  error  of  latf.  In 
that  case  the  complainant  having  died  the 
Magistrate  refused  permission  to  the  com- 
plainant's son  to  proceed  with  the  case  and 
acquitted  the  accused  and  the  District 
Magistrate  moved  the  High  Court  in  revi- 
sion. On  the  other  hand,  in  Rajkishore 
Dubey  v.  Ram  Pratap  (8)  a  Division  Bench 
(Mullick  and  Macpherson,  JJ  ,)  of  this 
Court  declined  to  interfere  even  though 
there  was  a  clear  error  in  the  lower  Appellate 
Court's  judgment.  We  have  not  been 
shown  any  case  in  which  a  High  Court  has 
interfered  in  revision  on  the  ground 
that  the  inferences  drawn  from  evidence 
were  erroneous. 

In  my  opinion  the  Legislature  does  not 
intend  that  the  private  party  shall  secure 
by  an  application  in  revision  a  right  which 
is  reserved  for  the  Crown  only.  The  High 
Court  has  the  right  to  interfere  but  will 
only  do  so  in  very  exceptional  cases,  which 
it  may  be  stated  generally  are  cases  in  which 
there  has  been  a  denial  of  the  right  of  fair 
trial  and  which  attract  the  operation  of 
s.  107  of  the  Government  of  India  Act. 
Nor  does  it  intend  that  the  High  Court  will 
interfere  in  revision  to  correct  an  error 
when  another  remedy  exists. 

In  England  where  any  member  of  the 
public  may  set  the  Criminal  Law  in  motion, 
there  is  no  procedure  at  all  for  setting 
aside  an  acquittal.  In  France,  where  the 
law  permits  in  most  criminal  cases  a  private 
injured  party  to  intervene  as  a  pa7tie 
civile,  the  right  of  appeal  against  an  ac- 
quittal is  accorded  only  to  the  Crown. 
Neither  system  permits  a  private  prosecutor 
to  control  the  proceedings  if  the  Crown 
objects. 

Nor  is  the  private  prosecutor's  control 
any  greater  under  the  Indian  Law  though 
he  is  entitled  in  certain  cases  to  compound 
with  the  offender:  see  Jamuna  Kanth  Jha 
v.  Rudra  Kumar  Jha  (9j. 

1  am  still  therefore  of  the  opinion  which 
I  expressed  in  Gulli  Bhagat  v.  Narain 
Singh  (5)  that  in  cognizable  cases  "the 
private  prosecutor  has  no  position  at  all 
and  that  if  the  Crown,  which  is  the  custo- 

(7)  37  Ind.  Cas  519,  IP  L.  J  264;  20  0.   W.   N.  862; 
18  Or  L  J    151,  2  P    L.  W  409. 

(8)  Oi    Rev    No.  229  of  1923 

(!))  52  Ind  Gas.  424;  4  P.  L.  J.  656;  20  Cr.  U  J.  646: 
(1920)  Pat.  42. 


I.  0. 1926} 


SIB  AN  RAI  V.  BHAGWAT  DASS, 


221 


dian  of  the  public  peace,  decides  to  let  an 
offender  go,  no  other  aggrieved  party  can 
be  heard  to  object  that  he  has  not  taken 
his  full  toll  of  private  vengeance.  These 
observations  were  made  with  reference  to 
a  private  party's  power  to  get  an  acquittal 
set  aside  in  a  ."  /•  i/<ml  •  case  whircli  had 
been  conducted  :  \  .,  I '•.-;,  Prosecutor;  but 
if  it  were  necessary  here  I  would  be  pre- 
pared to  hold  that  they  apply  with  equal 
force  to  acquittals  in  all  cases.  The 
Crown  and  not  the  complainant  is  always 
the  party  :  see  Queen- Empress  v.  Murarji 
Gokuldas  (10)  and  Gaya  Prasad  v.  Bliagat 
Singh  (11). 

If  that  view  is  correct,  then  the  circum- 
stance that  in  the  present  case  Mahanth 
(JangaDas,  in  spite  of  delivery  of  possession 
by  the  Civil  Court,  is  being  deprived  by  the 
judgment  debtor  of  the  enjoyment  of  his 
rights,  is  no  ground  for  our  interference  in 
revision,  There  has  been  no  denial  of  the 
right  of  fair  trial.  The  District  Magistrate 
has  considered  the  evidence  and  if  he  has 
come  to  a  wrong  conclusion,  it  certainly 
cannot  be  said  that  there  has  been  no  fair 
trial.  He  has  found  that  the  complainant's 
story  that  the  accused  came  with  a  mob  and 
drove  out  Ganga  Das's  servants  was  false 
and  that  Bhagwat  Das  was  in  possession 
and  that  it  was  the  complainant  who  at- 
tempted to  forcibly  eject  him.  If  the  true 
facts  had  been  put  by  the  complainant 
before  the  Court,  I  have  no  doubt  that  he 
would  have  succeeded  and  if  Bhagwat  Das 
persists  in  occupying  the  land  and  house 
which  formed  the  subject-matter  of  the 
Civil  Court  decree  against  him,  the  Criminal 
Courts  are  still  open  to  him.  The  present 
application  is  misconceived  and  is  dismiss- 
ed. 

Macpherson,  J. — I  agree  to  the 
order  proposed. 

In  my  opinion  the  application  must  fail 
on  the  simple  ground  that  it  is  not  even 
possible  to  say  that  the  acquittal  by  the 
Appellate  Court  (which  rightly  found  that 
the  case  which  petitioner  set  out  to  prove 
was  false)  was  not  in  the  circumstances 
warranted.  If  an  appeal  had  been  prefer- 
red by  the  Local  Government  under  s.  417, 
it  would  have  failed  for  the  same  reason. 

The  question  whether  a  private  person 
has  any  locus  staadi  to  move  the  High 

(10)  13  B.  389;  7  Ind.  Dec.  (N.  s )  258. 

(11)  30  A.  525,  12  0.  W.  N.  1017;  4  M.  L.  T.  204;  IS 
M.  L.  J.  394;  5  A.  L.  J.  665;  10  Bom.  L.  R.  1080;  8  C, 
1*  >  J.  387;  11  <X  0,  371;  35 1.  A,  189  (P,  0.). 


Court  against  an  acquittal,  and  if  so  in 
what  circumstances  has,  however,  been 
argued  at  length  and  claims  an  expression 
of  opinion. 

I  agree  with  the  Government  Advocate 
when  he  concedes  that  the  High  Court 
possesses  the  power  to  set  aside  an  ac- 
quittal under  s.  43'J  on  being  moved  by 
a  private  person  But  I  am  unable  to 
accept  his  contention  that  that  power 
is  either  in  law  or  under  the  practice 
of  the  Courts  in  India,  definitely  re- 
stricted to  cases  where  as  in  Jitan  Dusadh 
v.  Domoo  Sahoo  (7)  there  has  been  no  trial, 
or  where  there  has  been  a  denial  of  the 
right  of  fair  trial.  -  All  that  can  be  said  to 
be  established  is  that  in  that  class  of  cases 
at  least  the  Com  fc  will  in  a  proper  case  set 
aside  an  acquittal  at  the  instance  of  a  private 
party.  No  doubt  the  High  Court  will  in 
exercising  its  power  of  revision  under  s  439 
observe  the  limitations  which  established 
practice  has  imposed  upon  appeals  under 
s.  417.  But  though  in  praticethe  broad  rule 
of  guidance  that  the  Court  will  only  inter- 
fere in  revision  with  an  acquittal,  at  least 
in  a  case  where  there  has  been  a  trial, 
sparingly  and  only  where  interference  is 
urgently  demanded  in  the  interests  of  public 
justice,  Faujdar  Thakur  v.  Kasi  Chaudhuri 
(4)  may  be  accepted,  it  appears  dangerous 
to  go  further.  I  was  a  party  to  the  decisions 
in  Rajkishore  Dubey  v.  Ram  Partap  (8)  and 
GulliBhaqat  v.  Narain  Singh  (5)  decided  on 
successive  days  but  my  considered  opinion 
is  to  be  found  in  the  subsequent  decision  in 
Ganga  Singh  v.  Rambhajan  Singh  (12)  where 
after  referring  to  the  cases  above  cited,  I 
said — 

<lBut  it  is  not  ^possible  nor  would  it  be 
expedient  to  lay  down  a  general  principle. 
The  Court  will  interfere  where  the  circum- 
stances require  it.11 

In  particular  I  am  not  prepared  to  sub- 
scribe to  the  view  that  in  every  case  of  a 
prosecution  for  a  cognisable  offence  the 
private  prosecutor  in  India  has  no  position 
at  all  in  the  litigation.  It  might  possibly 
be  contended  that  at  least  where  the  pro- 
secution has  in  fact  been  a  public  or  as  it 
is  designated,  a  Police  prosecution,  the 
private  prosecutor  has  no  position  at  any 
stage.  I  doubt  whether  even  such  a  conten- 
tion is  tenable,  though  of  course  the  Court 
acting  in  revision  would  in  such  a  case 
enquire  earnestly  why  the  Crown  has  not 

(12)  82  lud,  Cae,  274;  25  Or,  L,  J,  1266, 


LAOHHMAN  SINGH  19 .  BMPBBOR. 


I.  0. 


appealed.  But  in  any  event  the  criterion 
cannot  be  whether  the  Police  could  under 
the  law  arrest  without  warrant  for  the 
offence  under  trial  irrespective  of  whether 
they  did  so  and  initiated  a  public  prosecu- 
tion under  the  Cr.  P.  C,,  it  is  open  to  the 
private  prosecutor  to  initiate  criminal  pro- 
ceedings by  complaint  without  the  interven- 
tion of  the  Police  and  where  that  has  been 
done,  and  the  prosecution  has  not  been 
taken  over  by  the  Grown,  a  private  pro- 
secuter  cannot,  in  my  judgment,  be  said  to 
be  without  position  in  the  litigation  even 
if  the  offence  is  cognizable*  The  majority 
of  prosecutions  for  criminal  trespass  and 
house  trespass  which  are  cognizable  offences 
are  private.  I  cannot  hold  that  either 
principle  or  authority  supports  the  view 
that  an  application  under  s.  439  against  an 
acquittal  is  not  maintainable  in  a  private 
prosecution  where  the  offence  charged  is 
cognizable. 

Again  too  much  stress  may  easily  be  laid 
upon  the  remedy  available  under  s.  417 
even  in  Police  cases.  An  appeal  against 
acquittal  is  a  special  weapon  in  its  armoury 
which  a  Local  Government  judiciously  re- 
serves for  exceptional  occasions,  and  which 
is  only  used  after  most  anxious  consideration 
and  in  cases  which  are  themselves  of  great 
public  importance  or  in  which  a  principle 
is  involved.  It  cannot  be  expected  that 
Government  will  dull  the  edge  of  that 
salutary  provision  by  utilising  it  freely  in 
cases  which  though  of  importance  to  indi- 
vidual subjects,  are  of  no  or  of  little  general 
interest.  Actually,  therefore,  a  remedy  under 
s.  417  is  practically  non-existent  in  the  less 
heinous  cases  whether  they  are  private 
or  public  prosecutions.  Yet  where  justice 
fails  in  this  country,  it  undeniably  does 
so  at  least  as  much  by  erroneous  acquittal 
as  by  erroneous  conviction. 

In  my  judgment  it  is  neither  necessary 
nor  expedient  to  lay  down  or  even  suggest 
any  limitations  in  this  regard  beyond  the 
practice  of  the  High  Court  in  appeal  under 
s.  417  and  the  principles  which  guide  the 
Court  in  receiving  and  determining  under 
s.  439  applications  for  the  exercise  of  their 
powers  of  revision  in  respect  of  convictions. 
I  would  adhere  to  the  view  expressed  by 
Jenkins,  C.  JM  in  Faujdar  Thakur  v.  Kasi 
Choudhuri  (4)  read  in  the  light  of  the  ob- 
servations of  the  same  Judge  in  Emperor 
v.  Bankatram  Lachiram  (13)  and  Mahomed 

(13)  28  B.  533;  6  Bom.  L.  B,  379;  II  Cr,  L.  J,  390, 


Ali  v.  Emperor  (14)  as  to  the  spirit  which 
should  guide  the  Courts  in  the  exercise  of 
their  discretionary  powers  in  revision.  The 
result  may  in  practice  not  differ  greatly 
from  that  which  would  be  obtained  by 
laying  down  and  following  detailed  rules. 
Doubtless  the  Court  will  only  interfere  in 
revision  with  an  acquittal  in  an  exceptional 
case.  But  the  supreme  consideration  is  that 
the  Court  should  exercise  its  discretion 
untramelled  in  each  case  as  it  arises. 
z  K.  Application  dismissed. 

(14)  20  Iiid.  Cas.   977;  41  C.  466;    14   Or.  L.  J  497,  18 
C.  \V.  N.  1. 


LAHORE  HIGH  COURT. 

CRIMINAL  APPEAL  No.  49 1  OP  1925. 

October   14,    1925. 
Present:— -Mr.   Justice  L'3Ros3ignol  and 

Mr.  Justice  Fforde 
LACHHMAN  SINGH— ACCCSED— 
APPELLANT 

rersux 
EMPEROR— RESPONDENT. 

Penal  Code  (Act  XLV  of  1860),  s  303— Death  caused 
by  attack  with  sharp-edjed  weapon—  Offence 

In  tlie  course  of  an  altercation  accused  suddenly 
stinck  the  deceased  with  a  sharp-edged  weapon  causing 
two  wounds  of  a  penetrating  nature,  one  of  which  com- 
pletely perforated  the  heart  and  the  other  penetrating 
the  abdomen  divided  the  intestines,  from  the  effect  of 
which  the  deceased  died  at  once, 

Held,  that  having  regard  to  the  nature  of  the 
wounds  inflicted  the  accused  must  be  deemed  to  have 
intended  to  cause  death  or  at  least  such  bodily  injury 
as  was  likely  to  cause  death  and  was,  therefore,  guilty 
of  murder. 

Appeal  from  an  order  of  the  Sessions 
Judge,  Amritsar,  dated  the  15th  April 
1925. 

Dr.  Nand  La/,  for  the  Appellant. 

Mr.  Des  Raj  Sawhney,  Public  Prosecutor, 
for  the  Respondent. 

JUDGMENT.— The  appellant  Lachh- 
man  Singh  has  been  sentenced  to  trans- 
portation for  life  for  the  murder  of  Sajjan 
Singh  on  the  evening  of  the  25th  Septem- 
ber 1924, 

In  continuation  of  an  altercation  which 
had  taken  place  earlier  in  the  day  between 
the  mother  of  the  appellant  and  the  wife 
of  the  deceased  the  two  men  were  struggl- 
ing in  front  of  their  houses  when  Lachhman 
Singh  suddenly  struck, the  deceased  with 
a  weapon  which  has  not  been  recovered  and 


[32  I.  0.  1926]  SURENDRA  NATH  BANERJEB^,  SHASHI  BHUSHAN 


223 


, which  is  variously  described  as  a  spear 
head  and  a  sickle.  Sajjan  Singh  collapsed 
and  died  at  once  whilst  Lachhman  kSingh 
ran  off  to  his  house  where  he  was  shortly 
afterwards  ariested  with  blood  stains  on 
his  clothes  and  his  person  by  the  village 
notables  to  whom  he  is  said  to  have  con- 
fessed his  guilt. 

The  medical  evidence  shows  that  the 
person  of  the  deceased  bore  two  wounds  of 
a  penetrating  nature  one  of  which  complete- 
ly perforated  the  heart ;  the  other  penetrat- 
ing the  abdomen  on  the  left  side  had 
divided  the  intestines  Death  was  due  to 
shock  and  haemorrhage. 

The  eye-witnesses  in  the  case  are  Musam- 
mat  Basant  Kaur.  Musammat  Naraini, 
Musammat  liukman  and  Musammat  Tabo, 
who  all  were  in  the  neighbourhood  and 
were  likely  to  have  seen  any  light  that  took 
place,  in  the,  open  space  before  their  houses. 
We  believe  their  statements  implicitly. 

The  appellant  pleaded  not  guilty  but 
produced  no  defence.  He  denied  all  know- 
ledge of  the  occurrence  and  did  not  take 
the  plea  of  self  defence.  Even,  therefore, 
if  the  deceased  was  the  stronger  man  of 
the  two  he  was  unarmed  and  the  appellant 
was  under  110  apprehension  of  receiving 
grievous  hurt  in  the  course  of  the  struggle. 
The  fight  was  an  ordinary  one  arising  out 
of  a  very  trivial  dispute  and  the  appellant 
stabbed  to  death  an  unarmed  man.  He 
Jiimself  bore  no  mark  of  injury  upon  his 
person.  Having  regard  to  the  nature  of 
the  wounds  inflicted  it  is  impossible  for  us 
to  avoid  the  conclusion  that  his  intention 
was,  if  not  to  cause  death,  at  least  to  cause 
such  bodily  injury  as  was  likely  to  cause 
death.  We  consider  that  offences  of  this 
type  are  becoming  far  too  common  and 
that  the  sentence  passed  upon  the  appellant 
is  not  excessive. 

We  dismiss  the  appeal. 


z.  K. 


Appeal  dismissed. 


CALCUTTA  HIGH  COURT. 

CRIMINAL  REFERENCE  No.  Gi'  OF  19*5 

April  2*,  1925. 

:— Justice  Hir  Hugh  Walmsley,  KT., 
and  Mr.  Justice   B.  B.  (ihose. 
SUBJSNUKA  NATH  BANERJEE— 
*  PETITIONER 

versus 

SIIASHI  BHUSHAN  SAKKAR— 
OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  nf  18fJ8\  s.  7^5, 
scope  of —Dispute  regarding  offerings  of  idol,  nature  of. 

The  light  to  perform  the  puja  of  an  idol  or  to  have 
ashaioof  the  offerings  made  to  the  idol  cannot  be 
said  to  be  a  right  of  user  of  land,  as  provided  in 
s  145,  Or  P.  C  Therefore  «i  dispute  relating  to  suck 
a  light  does  not  come  within  that  section 

Gun  am  Ghnshal  v  Lai  Biliary  Das,  6  Ind  Cas  182- 
37  C  578,  11  C  W  N.  (ill;  12  C  L  J  22,  11  Or.  L  J.' 
2(J2(  refciied  to 

Reference  made  by  the  Additional  Ses- 
sions Jurlgo,  Hooghly,  dated  the  2(5 th 
February  l!)2l>. 

Babu  IHrbhiifHin  Dutt  (with  him  Babu 
Shekar  Kumar  Hose),  for  the  Petitioner, 

Dr.  firjon  Kumar  Mukerjee  (with  him 
Babu  Sarat  Kumar  Bose)9  for  the  Opposite- 
Tarty. 

JUDGMENT, 

Ghose,  J.— This  is  a  Reference  by  the 
Additional  Sessions  Judge  of  Hooghly  re- 
commending that  an  order  passed  under 
s.  147  of  the  Or.  P.  0,,  should  be  set  aside. 

The  dispute  between  the  parties  was  with 
regard  to  the  performance  of  the  puja  of  an 
idol.  There  was  no  dispute  as  regards  the 
temple  or  any  land  belonging  to  the  idol. 
The  whole  question  in  controversy  is  whe- 
ther the  right  claimed  by  the  first  party 
is  a  right  of  user  of  any  land,  as  explained 
in  s.  145  sub-s.  (2)  of  the  Or.  P.  C.  The 
right  is  alleged  to  be  a  right  to  go  into  the 
temple  and  to  perform  the  puja  and  to  take 
a  portion  of  the  offerings  made  to  the  idol. 

The  learned  Sessions  Judge  is  of  opinion 
that  this  right  is  not  included  within  the 
words  "right  of  user  of  any  land."  He 
refers  to  a  decision  of  this  Tourt  in  the 
case  of  Guiram  Ghoshal  v,  Lai  Behary  Das 
(1),  in  support  of  his  conclusion. 

It  is  contended  on  behalf  of  the  first  party 
that  that  decision  proceeded  upon  the  ground 
that  the  expression  "land"  was  not  defined 
in  s.  145  of  the  Or.  P.  C.,  as  it  then  stood, 
and  as  now  it  has  been  especially  enacted 
that  it  includes  a  "building"  under  the 

(1)  6  Tnd.  Cas.  182;  37  0.  578;  14  C,  Vf,  N.  611;  12  C< 
L,J.22jllCr,L,J.  m. 


MlRAN  V. 

newly  added  sub-s.  (2)  of  s.  145,  the  author- 
ity of  that  case  is  no  longer  in  force.  How- 
ever, that  may  be,  it  seems  to  me  that  the 
right  to  perform  the  puja  of  an  Mol,  or  to 
have  a  share  of  the  offerings  made  to  the 
idol,  cannot  be  said  to  be  a  right  of  user 
of  any  land,  as  explained  in  s.  145  of  the 
Cr.  P.  C.,  and,  therefore,  the  presenftiispute 
cannot  be  considered  to  be  one  coming 
under  the  provisions  of  that  section. 

On  this  ground  I  would  accept  the 
Reference,  and  set  aside  the  order  of  the 
Magistrate  in  favour  of  the  first  party. 

If  there  is  such  a  dispute  between  the 
parties  which  the  Magistrate  considers  may 
lead  to  any  breach  of  the  peace,  he  may 
take  such  steps  as  he  considers  necessary 
under  s.  107  of  the  Cr.  P.  C. 
•  The  order  for  payment  of  costs  is  set 
aside,  and  the  costs,  if  paid,  will  be  re- 
funded. 

Walmsley,  J.— I  agree. 

N.  H.  Reference  accepted. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  224  OF  Iy25. 

July  7,  1925. 

Present: — Justice  Sir  P.  C,  Banerji,  KT., 
MIRAN  AND  OTHERS— ACCUSED — APPLICANT 

versus 
EMPEROR— OPPOSITE  PARTY. 

Penal  Code  (Act  XLV  of  1860),  ss.  ltf,H9t  832— 
Constable  interfering  with  wrestling  match— Assault  on 
members  of  Police  force-  Riolimj — Sentence. 

One  of  the  Constables  deputed  to  keep  order  at  a 
wrestling  match  interfered  with  the  wrestling,  where- 
upon several  members  of  the  audience  set  upon  the 
members  of  the  Police  force  present,  hustled  them  and 
tore  their  uniforms  . 

Held,  (1)  that  the  assailants  of  the  Constables  were 
guilty  of  offences  under  s«.  117  and  332 '149,  Penal 
Code; 

(2)  that,  in  the  circumstances  of  the  case,  serere 
sentences  were  not  called  for, 

Criminal  revision  from  an  order  of  the 
Additional  Sessions  Judge,  Meerut. 

Sir  Charles  Ross  Alston,  for  the  Appli- 
cants. 

Mr.  M.  Waliullah  (Assistant  Government 
Advocate),  for  the  Crown, 
JUDGMENT. — This  is  an  application  in 
revision  on  behalf  of  six  persons,  who  have 
been  convicted  tinder  s.  147  read  with 
ss.  149  and  332  of  the  Indian  Penal  Code 
and  sentenced  to  various  terms  of  imprison- 
ment, and  they  have  been  further  directed 


$&  i.  o. 

to  execute  bonds  with  sureties  under  s.  106 
of  the  Cr.  P.  CM  to  keep  the  peace. 

On  the   l?th  January,   1H25,   there  was  a 
wrestling  match  between  Hashmat  of  Jalal- 
abad and  Inna  of  Kairana  in  the  Chharian 
fair  at  Kairana.    This   wrestling  match,  it" 
appears,  was  under  the  patronage   of  the 
Municipal   Board  and  the  Municipality  had 
invited  Policemen  to  keep  peace  and  order 
in   the  fair.    The  wrestling  match    was  a 
very   evenly  contested   one  and,  according 
to  the  evidence  of  the  Vice-Chairman,  five 
minutes  more  were  allowed  to  the  wrestlers 
to  finish  the  wrestling;    but  it  appears  that 
one  Qazim    Husain   Constable,  who  was  a 
backer    of  Hashmat,    interfered   with  the 
wro-*tlini?     Thereafter  there   was  a  sort  of 
scuffle  arid   the  net  result   was  that  some 
of  the  Policemen    were    hustled  and   their 
uniform    torn.      It    is  very   difficult   in  a 
case   like    this,   where   the  backers   of  the 
wrestlers  were  grappled  on  the  throat,   to 
resist  rushing  the    arena  when  a  Constable 
who    was   backer  of  one  of  the  wrestlers 
was  interfering;  but  that,  however,  will  not 
permit  the  crowd    or  such  of  the  members 
of  the  assembly  present  there  to  hustle  the 
Police  who  were    there  for  the    purpose  of 
maintaining  law  and  order.    Having  given 
my  careful   consideration  to    all  that  Sir 
Charles  Ross  Alston  had    to  say  in  support 
of  his    case    and     the    agreement  of  the 
Assistant    Government  Advocate,  I  am  of 
opinion  that  the  whole  of  the  incident  was 
a  very  trivial  affair;  but  the  accused  were, 
no  doubt,  technically  guilty  of  the  offence 
with  which  they  were    charged.    I  realise 
that  the  duty    of  controlling  a  crowd  at 
these  wrestling    matches  is  a  very  serious 
duty  and  anybody    interfering    therewith 
must    be  punished.    But    under    the  cir- 
cumstances of  this  case  I  am  of  opinion 
that   the  period  of  imprisonment   already 
served  by  the  petitioners  is  a    sufficient 
punishment.    I  reduce  the  sentence  to  that 
already    undergone.    I  maintain  the  sent- 
ences of  fine.    I  do  not  think  it  is  in  this 
case  necessary  to  bind  the  accused  under 
s.  106  of  the  Cr.  P  C,,  to  keep  the  peace. 
I  set  aside  the  order  directing  the  accused 
to  execute  bonds  under  that  section, 
z.  K.  Sentence  reduced. 


[92  I.  0. 1926] 


DHANRAJGIRJI  MARASINGQIRJI  r.  TATA  SONS 


225 


BOMBAY  HIGH  COURT. 

ORIGINAL  CIVIL  JURISDICTION  APPEAL  No.  16 

OF  1924. 
July  10,  19*4. 

Present;—  Sir  Lallubhai  Shah,  KT.,  Acting 

Chief  Justice,  and  Mr.  Justice  Fa  \vcett. 

DHANRAJGIRJI  NAUSINGGIRJI— 

UEFBN  DANT—  APPELLANT 

versus 

TATA  SONS  LTD.—  PLAINTIFFS- 
RESPONDENTS. 

Contract  Act  (IX  of  1872),  s  73—  Breach  of  contract— 
Damages,  when  can  be  recovered  —  Measure  nf  damages 
—  -Surrounding  circumstances,  relevancy  of 

Section  73  of  the  Contract  Act  do28  not  necessarily 
exclude  '.  .  •  *'  "  of  the  rule  laid  down  in 
B&in  v.  ,  v  \it  lal  normally  apart  from  de- 

liberate carelessness  or  known  want  of  title  by  a 
vendor,  a  purchaser  cannot  recover  damages  for  lofes 
of  his  bargain  under  a  contract  for  the  sale  of  real 
estate,  apart  from  costs  of  investigating  the  title. 
The  question  must  be  answered  on  the  facts  and 
circumstances  of  each  case  whether  that  rule  would 
apply  to  that  particular  case  [p  229,  col  2  1 

In.au  ordinary  contract  for  the  purchase  and  sale  of 
land  in  which  the  vendor  contracts  to  make  out  a 
maiketablo  title,  the  usual  result  would  be,  if  without 
any  default  on  the  part  of  the  vendor  he  was  unable 
to  make  out  a  marketable  title,  that  Hie  bargain  would 
be  off  and  the  vendor  would  have  to  pay  the  pur- 
chaser's costs  of  the  agreement  and  of  the  inspection 
of  the  title-deeds  But  if  the  conduct  of  the  vendor 
in  committing  the  breach  shows  that  he  1ms  been 
guilty  of  any  default  of  a  wilful  nature,  then  the 
damages  would  be  calculated  on  a  higher  scale,  and 
the  measure  of  damages  would  be  the  dift'cicnco 
between  the  contract  price  nnd  the  market  price  of  the 
property  at  the  date  of  the  breach,  [p  22!),  cols.  I  &  2.j 

Hasan  Premji  v.  Jcrbai,  O.  0.  J.  Appeal  No  41  of 
1920  decided  by  Macleod,  0.  J.  and  tShah,  J.  on  Decem- 
ber 17,  1920  (IJnrep.)  followed. 

Vallabhdas  Tulsi  Das  v  Nayar  Das  Juthabai,  92 
Ind  Gas.  143;  23  Bom.  L.  R  1213,  referred  to. 

Per  Fawcett,  J  —  It  is  not  the  profit  which  would  have 
arisen  to  the  plaintiffs,  which  is  to  be  taken  into 
account,  but  the  market  price  of  th^  property  on  the 
date  of  the  breach  [p  231,  col.  2.] 

The  discretion  which  a  Couit  has  under  a  7.'J,  Con- 
tract Act,  cannot  properly  be  restricted  by  any  Judge- 
made  rule  that  every  case  of  a  particular  kind  must 
Ipe  dealt  with  in  a  particular  manner,  [p  232,  col  1.] 

The  circumstances  of  each  case  have  to  be  considered 
in  deciding  what  is  reasonable  and  proper  com- 
pensation for  the  damage,  caused  by  a  breach  of 
contract  under  s  73  of  the  Contract  Act  and  the 
Courl  is  not  bound  in  every  cas3  to  award  damages 
on  the  basis  of  a  difference  between  the  prieo  at  ths 
date  of  the  contract  and  the  market  price  at  the  date 
of  the  breach.  [p.  232,  col.  2.] 

In  a  oass  where  the  plaintiff  has  no  very  outstanding 
circumstances  to  support  his  claim  to  damages  on  a 
higher  scale,  the  fact  of  the  contract  being  made  under 
conditions  similar  to  those  obtaining  in  England  is  a 
factor  which  can  reasonably  be  taken  iuto  account. 
[p.  233,  col.  1.1 

Appeal  against  the  decision  of  Mr,  Justice 
Marten. 

I,   Je7l/  7  U.K.  lite,  KIL.J   i..\  2I,1*,  3L  I,.  T.  ^ft 


,      e/ 
32  W,  8,261. 


Mr.  Kanga,  Advooate  General,  (with  him 
Mr.  Coltman),  i'or  the  Appellant. 

Mr.  Gamph'M,  (with  him  Mr.  B.  J.  Desai\ 
for  the  Respondent. 

JUDGMENT. 

Shah,  Ag«  C*  J. — This  appeal  arises  out 
of  a  suit  filed  by  the  plaintiffs  for  recovery 
of  the  deposit  money,  and  for  damages 
in  respect  of  a  contract  entered  into  between 
them  and  the  deceased  Raja  Bahadur  Nar- 
singgirji  with  reference  to  certain  immove- 
able  property  in  Bombay  which  has  been 
described  as  "Watson's  Annexe."  The  con- 
tract was  entered  into  on  January  12,  1920. 
There  was  no  formal  contract  between  the 
parties,  but  it  is  evidenced  by  the  two  letters 
wiitten  on  January  12,  1920,  to  the  parties 
by  their  common  broker  (Exs.  Pel  and  1). 
The  price  of  this  property  was  fixed  at 
Rs,  1^,00,000  (eighteen  lacs).  The  plaint- 
ills  paid  Rs.  1,00,000  as  earnest  money  on 
January  13. 

The  plaintiffs1  case  is  that  Raja  Bahadur 
Narsinggirji  broke  the  contract  on  Novem- 
ber 20,  1920,  the  final  date  by  which  per- 
formance of  the  contract  was  insisted  upon 
on  their  behalf.  It  appears  that  the  plaint- 
iffs entered  into  a  contract  for  the  sale  of 
this  very  property  with  another  person  for 
twenty-three  lacs  of  rupees  within  a  fort- 
night from  the  date  of  the  agreement  iu 
question.  The  plaintiffs  ultimately  claimed 
the  return  of  the  deposit  money  and  dama- 
ges to  the  extent  of  five  lacs  of  rupees  by 
way  of  loss  which  they  suffered  on  account 
of  their  having  been  unable  to  carry  out 
their  contract  with  their  purchaser. 

The  defendant  denied  having  broken  the 
contract,  and  in  effect  contended  that  he 
had  a  good  title  to  the  property  which  he 
was  always  ready  and  willing  to  convey  to  the 
plaintiffs,  and  that  the  difficulty  which  arose 
in  consequence  o£  a  suit  filed  by  one  Dr. 
Billimoria,  who  was  in  possession  of  this 
property  as  a  lessee  from  him,  was  one  for 
which  he  was  not  in  any  sense  responsible. 
He  made  a  counter  claim  for  the  specific 
performance  of  the  contract  in  his  favour, 
and  contended  that  the  plaintiffs  had  for- 
feited the  deposit  money. 

On  these  pleadings  the  necessary  issues 
were  raised,  and  the  evidence  adduced  prin- 
cipally consisted  of  the  correspondence 
between  the  parties,  The  oral  evidence  in 
the  case  is  not  of  much  importance,  so 
far  as  the  • "  .  • '  •  i "  issues  in  the  case  are 
concerned. 

On  a  consideration  of  the  facts  disclosed 


15 


226 


BHANRAJQ1IW  NARSINGGIRJI  V.  TATA  SONS  LTD. 


in  the  correspondence  and  of  the  oral  evi- 
dence the  learned  Judge  came  to  the  con- 
clusion that  there  was  a  representation  by 
the  defendant  to  plaintiffs  that  Dr.  Billi- 
moria  was  in  occupation  under  a  lease  which 
was  shortly  to  expire,  and  that  the  plaintiffs 
Agreed  to  buy  the  property  on  the  faith  of 
such  representation.  He  also  found  that 
the  plaintiffs  wore  justified  in  rescinding 
the  contract  on  November  *0,  19^0,  and  that 
the  defendant  had  committed  a  breach  of 
the  contract,  On  these  findings  the  learn- 
ed Judge  passed  a  decree  in  favour  of  the 
plaintiffs  for  the  return  of  one  lac  of  rupees 
paid  as  earnest  money,  and  for  costs  in- 
cidental to  the  investigation  of  the  title 
in  reference  to  this  contract.  As  regards 
damages  the  learned  Judge  made  a 
reference  to  the  Commissioner  for  inquiry 
as  to  the  amount  of  damages.  He  did  not 
decide  any  question  as  to  the  basis  upon 
Which  damages  were  to  be  assessed  in  the 
case.  The  learned  Judge  thought  that  there 
was  a  good  deal  to  be  said  in  favour  of  the 
rule  laid  down  in  Bain  v.  Fothergill  (I)  that 
normally,  apart  from  deliberate  carelessness 
or  known  want  of  title  by  a  vendor,  a  pur- 
chaser cannot  recover  damages  for  loss  of 
his  bargain  under  a  contract  for  the  sale 
of  real  estate,  apart  from  costs  of  investigat- 
ing the  title.  But  he  held  that  the  rule 
in  India  was  different  from  that  laid  down 
in  Bain  v.  Fothergill  (1)  and  made  this  re- 
ference to  the  Commissioner  for  the  deter- 
mination of  damages. 

The  legal  representative  of* the  original 
defendant,  Raja  Narsinggirji,  who  died 
during  the  pendency  of  the  suit,  has  appeal- 
ed from  this  judgment.  In  appeal  the  claim 
for  specific  performance  has  not  been  pres- 
sed, and  nothing  remains  to  be  said  with 
reference  to  that  part  of  the  defendant's 
claim. 

Principally  two  points  have  been  raised 
in  support  of  the  appeal.  First,  it  is  argued 
that  the  lower  Court  is  wrong  in  directing 
a  return  of  the  deposit  money.  It  is  con- 
tended that  the  plaintiffs  had  really  kept 
the  contract  open  up  to  the  end  of  October 
1920;  that  they  knew  perfectly  well  since 
June  1940  that  Dr.  Billimoria  had  filed 
a  suit  against  the  defendant  to  enforce 
specific  performance  of  an  agreement  to  lease 
this  very  property  fora  further  period  of  six 
years;  that  that  suit  between  Dr.  Billimoria 
and  the  defendant  was  pending;  and  that 

(1)  (1874)  7  H.  L.  158;  43  L.  J.  Ex,  243;  31  L.  T,  387: 
Stt  W.  R.  261, 


f>2  I,  C,  19261 


with  full  knowledge  of  that  fact  they  kept 
the  contract  alive  with  a  view  to  eecure  if 
possible  the  profit  which  they  were  likely 
to  make  on  account  of  their  contract  with 
8.  R,  Bomanji.  It  is  further  urged  that 
when  they  gave  notice  on  November  8  that 
they  would  treat  the  contract  as  cancelled 
if  it  was  not  performed  by  November  5.0, 
and  when  they  made  time  of  the  essence  of 
the  contract  they  were  not  justified  in  doing 
so  and  the  notice  was  not  reasonable  under 
the  circumstances.  The  contention  is  that 
the  defendant  was  trying  his  best  to  have 
the  suit  of  Dr.  Billimoria  expedited, 
and  it  was  not  under  his  control  to  get 
the  decision  of  the  suit  on  or  before 
any  particular  date.  It  is  urged  that  if  the 
notice  is  not  reasonable  under  the  circum- 
stances, the  plaintiffs  have  no  right  to  re- 
cover this  earnest  money.  The  second 
point  relates  to  the  question  of  damages. 

I  shall  first  deal  with  the  question  as  to 
the  right  of  the  plaintiffs  to  recover  the 
earnest  money.  In  connection  with  this 
point,  it  is  necessary  to  remember  at  the 
start  that  this  property  which  formed  the 
subject-matter  of  the  agreement  between 
the  parties  was  a  lease-hold  property.  The 
terms  of  the  lease  are  to  be  found  in  Ex.  D 
in  the  case.  The  land  was  leased  out  by 
trustees  of  the  Port  of  Bombay  for  fifty 
years  from  January  1,  1880,  and  at  the  date 
of  this  contract,  i.  e ,  in  January  1920  nearly 
thiry- three  years  had  elapsed,  and  the  lease 
was  still  to  run  for  about  seventeen  years. 
As  regards  the  buildings  put  up  by  the 
lessee  on  this  land,  unless  the  lease  was 
renewed,  under  the  terms  of  the  lease  the 
lessee  had  only  aright  to  remove  the  build- 
ing at  the  termination  of  the  lease.  That 
was  the  nature  of  the  property  for  which 
the  plaintiffs  had  agreed  to  pay  eighteen 
lacs  of  rupees.  On  January  Is?,  19iO,  the 
contract  was  entered  into  1::::-;.^  a  firm 
of  brokers  who  were  not  familiar  with 
transactions  in  land  and  immoveable  pro- 
perty. We  find  that  after  Narsinggirji  made 
the  offer  on  December  30,  1919,  two  letters 
were  written  by  the"  brokers  on  January  12, 
1920,  one  to  the  plaintiffs  and  the  other  1o 
the  deceased  defendant  Narsinggirji.  The 
letter  to  the  plaintiffs  was  in  these  terms: — 
"We  have  this  day  bought  by  your  order 
and  for  your  account  from  Raja  Bahadur 
Narsinggirji  Qyangirji  Watson's  Annexe 
Building  situated  at  Apollo  Bunder,  Fort, 
Bombay,  admeasuring  about  7,400  pquare 
yards  of  Bombay  Port  Trust  Land  (the 


[92  I.  0. 1926  J 


DHANRAJQlRJt   KARASIQGIRJI  V,  TATA  SONS  LTD. 


227 


sent  Port  Trust  lease  is  to  run  for  about 
sixteen  years  further)  for  Rs.  18,00,000.  Title 
'deeds  to  be  marketable.  The  purchaser  is 
to  pay  Rs.  1,00,000,  as  earnest  money.  Legal 
charges  to  be  paid  half  by  you  and  half  by 
the  seller.  The  sale  to  be  completed  within 
six  months  from  the  date  of  this  contract." 

We  find  substantially  the  same  terms 
in  the  letter  to  the  defendant.  On  January 
13,  the  earnest  money,  Rs.  one  lac,  was 
paid  by  the  plaintiffs  to  the  defendant.  It 
appears  that  on  January  22,  the  plaintiffs 
agreed  to  sell  this  very  property  for  twenty- 
three  lacs  of  rupees  to  S.  R.  Bomanji,  and 
the  letter  refers  to  the  payment  of  Rs.  J>0,000 
by  way  of  earnest  money  to  the  plaintiffs. 

Before  the  end  of  January  it  came  to  be 
known  that  Dr.  Billimoria,  who  was  in 
possession  of  this  property  under  a  lease, 
which  was  to  expire  shortly,  was  putting 
forward  a  claim  to  a  further  lease  of  this 
property  for  six  years  against  the  defend- 
ant. This  fact  came  to  be  known  to  the 
plaintiffs  by  a  letter  of  January  29,  written 
by  the  Solicitors  of  Dr.  Billimoria  to  the 
plaintiffs.  The  defendants  wrote  tothebroker 
on  January  30,  saying  that  it  was  a  misrepre- 
sentation to  say  that  the  present  lessee 
was  entitled  to  a  new  lease.  That  must 

have  been  communicated  to  the  plaintiffs. 
*  *  *  * 

It  may  be  mentioned  that  in  Dr.  Billi- 
moria's  suit  a  consent  decree  was  passed 
a:?,:  >:  ii:::r  to  which  Dr.  Billimoria  wag  to 
vacate  the  premises  on  or  before  February 
23,  IMS.  The  allegation  of  Dr.  Billimoria 
as  to  his  right  to  have  a  further  lease  for 
six  years  from  Narasingirji  was  not  investi- 
gated. In  the  first  place  there  was  his 
claim  for  specific  performance  of  this  agree- 
ment for  a  further  lease,  and,  secondly, 
the  defendant  had  to  meet  tha  possible 
plea  of  the  tenant  in  possession  based  on 
the  provisions  of  the  Rent  Act  (Bom.  Act 
II  of  1918).  In  that  state  this  consent  dec- 
ree was  obtained  on  February  L4, 1921. 

The  present  suit  was  filed  on  August  3, 
1921.  I  have  stated  the  correspondence 
between  the  parties  at  some  length,  as  the 
facts  appearing,  in  the  correspondence  have 
a  baaring  upon  both  the  points  arising  in 
the  appaal.  With  regard  to  the  question 
of  the  right  of  the  plaintiffs  to  claim  the 
earnest  money,  it  depends  upon  the  view 
which  the  Court  takes  of  the  letters  of 
August  12  and  of  November  8  written  by  the 
plaintiffs1  Sjiicitora  to  the  defendant's  Solici- 
tor,*, It  is  quite  true  that  oa  August  12  they 


did  not  in  terms  make  time  of  the  essence  of 
the  contract.  Apparently  they  were  not  un- 
willing to  keep  the  contract  alive  then,  iE 
by  any  chance  the  contract  could  be  com- 
pleted by  November  1,  as  that  was  the 
date  fixed  by  the  plaintiffs  with  reference 
to  the  fulfilment  of  their  agreement  with 
8.  R.  Bomanji.  But  they  intimated  in 
clear  terms  in  that  letter  that  if  the  sale 
was  not  completed  by  that  time,  they  would 
lose  the  benefit  of  their  contract  with  8.  R. 
Bomanji,  and  that  they  would  claim  the 
difference  of  rupees  five  lacs  by  way  of 
damages.  The  suit  of  Dr.  Bilimoria  which 
had  really  created  a  difficulty  in  the  way  of 
the  fulfilment  of  this  contract  was  then 
pending.  It  appears  that  the  summons 
of  the  suit  was  served  on  the  defendant 
on  June  10,  and  the  written  statement 
was  filed  on  August  5.  Apparently  in 
accordance  with  the  suggestion  made  by 
the  defendant's  Solicitors  the  plaintiffs' 
Solicitors  had  called  for  the  title-deeds 
after  April  12.  Nothing  appears  to  have 
been  done,  and  the  plaintiffs  were  waiting 
for  the  completion  of  the  contract  by  No- 
vember 1.  There  was  practically  no  cor- 
respondence from  August  16  to  October  28, 
1920.  At  any  rate  on  November  8,  1920, 
the  plaintiffs'  Solicitors  definitely  intimated 
to  the  defendant's  Solicitors  that  they  could 
n)t  possibly  wait  beyond  November  20.  It 
is  true  that  if  by  any  chance  the  contract 
could  be  fulfilled  by  that  date  they  were 
anxious  to  see  it  fulfilled  as  that  would 
put  them  in  a  position  to  fulfil  their  con- 
tract with  their  purchaser.  But  the  terms 
of  the  letter  of  November  8  are  very  clear, 
and  the  whole  question  is  whether  on  Nov- 
ember 8  the  plaintiffs  were  justified  in 
making  time  of  the  essence  of  the  contract, 
and  whether  the  notice  given  by  them  is 
reasonable  under  the  circumstances.  It  is 
urged  on  behalf  of  the  defendant  that  it 
is  not  F  reasonable  notice  because  it  was 
not  within  their  power  to  get  the  suit 
disposed  of  before  that  date.  In  fact  they 
maie  some  effort  after  November  20  to  ex- 
pedite the  hearing  of  that  suit,  and  as  a 
result  of  that  etfort  apparently  the  hear- 
ing was  expedited.  Ultimately  a  consent 
decree  was  obtained  in  February  1921. 

Tne  question  as  between  the  plaintiffs 
and  the  defendant  is  whether  the  plaintiffs 
were  bound  to  wait  until  the  disposal  of 
the  suit.  That  really  is  the  contention  of 
the  defendant.  According  to  the  defendant 
the  plaintiffs  having  elected  ia  August 


228 


DHANEAJOIRJI  NARSINGGIRJI  V,  TATA  SONS  LTD. 


1920  to  keep  the  contract  alive,  they  could 
not  ask  him  on  November  8  to  complete 
the  contract  within  twelve  days  from  that 
date.  As  between  the  plaintiffs  and  the 
defendant  the  original  agreement  was  to 
fulfil  the  contract  within  six  months.  That 
period  expired  on  June  12,  and  thereafter 
having  regard  to  the  nature  of  the  property 
it  is  clear  that  the  plaintiffs  could  not  be 
expected  to  wait  for  any  indefinite  length 
of  time,  It  is  true  that  as  between  the 
plaintiffs  and  the  defendant  the  contract 
which  the  plaintiffs  had  entered  into  with 
8.  R.  Bomanji  is  not  mateiial.  Leaving 
alone  that  contract,  it  is  clear  that  the 
plaintiffs  themselves  were  entitled,  without 
any  reference  to  the  particular  reason  for 
their  doing  so,  to  insist  upon  the  fulfil- 
ment of  the  contract  within  a  reasonable 
time.  After  June  1920  they  were  in  a 
position  to  make  time  of  the  essence  of 
the  contract  in  view  of  the  difficulty  about 
getting  immediate  vacant  possession.  On 
August  12  they  intimated  fairly  clearly  to 
the  defendant  that  they  would  insist  upon 
the  fulfilment  of  the  contract  by  Novem- 
ber 1.  It  is  quite  true  that  they  did  not 
state  that  they  were  making  time  of  the 
essence  of  the  contract  ;  and  that  letter 
cannot  be  taken  as  notice  making  time  of 
the  essence  of  the  contract.  But  in  fact  a 
definite  intimation  was  given  thereby  that 
they  would  insist  on  the  fulfilment  of  the 
contract  by  November  1.  1  do  not  take 
that  as  election  on  the  part  of  the  plaintiffs 
that  they  were  going  to  wait  until  the  dis- 
posal of  the  suit,  whatever  time  the  suit 
may  take.  It  only  indicates  a  desire  to 
wait  up  to  November  1.  In  fixing  Novem- 
ber 1,  ife  seems  tome,  that  the  plaintiffs 
gave  the  defendant  sufficient  time  in  view 
of  the  pendency  of  Dr,  Billimoria's  claim; 
but  when  it  became  evident  that  they  could 
not  allow  the  contract  to  remain  outstand- 
ing any  longer  without  risk  to  themselves, 
they  made  it  clear  on  November  8  that  at 
the  most  they  would  wait  up  to  November 
20.  It  seems  to  me  that  they  were  justified 
in  doing  so,  and  the  time  they  gave  was 
under  the  circumstances  reasonable. 

The  dispute  between  the  vendor  and  his 
sub-lessee  was  a  matter  with  which  the 
plaintiffs  were  not  directly  concerned.  If 
the  defendant  wanted  to  have  the  benefit  of 
this  contract,  it  was  his  duty  to  see  the  dis- 
putes between  him  and  his  vendee  settled 
in  such  a  manner  as  to  put  him  in  a  posi- 
tion to  fulfil  bis  part  of  the  contract,  Hav- 


[92 I.  0.1926] 

regard  to  the  nature  of  the  property  the 
plaintiffs  were  perfectly  justified   in   insist- 
ing upon  the  fulfilment  of  the  contract  by 
November  1,   and  when    they  realised  that 
the  contract  was  not  fulfilled  by  November 
1,  they  made  it  perfectly  clear  to_ the  defend- 
ant that   they  could  not   wait  in    any  case 
beyond  November  20.     That  is   a   position 
which,  it  seems  to  me,  they  were  justified  in 
taking  up.     The  time  given  was  reasonable. 
They  could  have  no  control  over  the  proceed- 
ings in  the  suit  between  Dr.   Billimoria  and 
the  defendant,  and  the  result  in   that  case 
shows  that  the   defendant  could    not  have 
completed  this  contiact   in  any  reasonable 
time.     It  is  in  view  of  the  result  in   that 
suit  that  possibly    the     claim   for  specific 
performance  is  not  pressed   by  the   defend- 
ant now.     But  whatever  the  reason  may  be 
for  not  pressing  the  claim  for  specific  per- 
formance, 1  am  satisfied  that  the  view  taken 
by  the  the  lower  Court  as   to  the  return  of 
the  deposit  money  to  the  plaintiffs  is   right. 
I  do  not  think  under  the  circumstances  that 
the  defendant  could  forfeit  this  money  for 
his  own  benefit.    - 

The  next  question  in  the  case  relates  to 
damages.  'As  regards  the  measure  of  dam- 
ages in  a  case  of  this  kind,  the  test  to  be 
applied  is  not  easy  to  lay  down.  No  doubt 
8  73  of  the  Indian  Contract  Act  would  apply 
to  this  contract,  as  it  would  apply  to  any 
other  contract.  Under  s.  73  the  plaintiffs 
would  be  entitled  to  claim,  any  loss  or 
damage  caused  to  them,  'which  naturally 
arose  in  the  usual  course  of  things  from 
such  breach,  or  which  the  parties  knew, 
when  they  made  the  contract,  to  be  likely  to 
result  from  the  breach  of  it, 

The  question  that  we  have  to  consider  is 
whether  the  rule  of  English  Law  laid  down 
in  Bain  v.  Fothergill  (i)  is  necessarily  ex- 
cluded by  the  terms  of  s.73  of  the  Indian 
Contract  Act.  I  am  assuming  for  the 
moment  '  that  the  rule  might  otherwise 
apply  to  the  facts  in  this  case.  I  shall 
deal  separately  with  the  question  as  to 
whether  in  the  present  case  the  breach 
on  the  part  of  the  defendant  could  be 
said  to  be  due  to  wilful  default  on  his 
part,  or  on  account  of  some  difficulty  in  the 
way  of  making  out  a  title  for  which  he 
cannot  be  held  justly  responsible.  The 
question  is  whether  under  the  circumstances 
the  plaintiffs  are  entitled  only  to  the  return 
of  the  deposit  money,  and  all  the  costs  of 
the  investigation  of  title,  or  whether  they 
(ire  entitled  to  damages  on  the  footing  of 


[92  I.  0,  1926] 

the  difference  between  the  contract  price 
and  the  market  value  of  the  property  on  the 
date  of  the  breach. 

The  decisions  on  this    point  have  been 
somewhat  conflicting.    I  may  mention  that 
in   Pitamber  Sundarji   v.    Cassibai   (2)    the 
view  taken  by  Mr,   Justice  Scott  was  that 
the  English  rule  on  this  point  would  apply 
here.     In  Nagardas  Saubhagyadas  v.  Ahmed 
khan  (3)  there  are  observations  of  Farran, 
C.  J.,    to  the   effect  that   the    Legislature 
has  not  prescribed  a  different  measure  of 
damages  in   the  case  of  contracts   dealing 
with  land  from  that  laid  down  in   the   case 
of  contracts  relating  to  commodities.    That 
was   the  decision  of  a  Division  Bench   on 
the  Appellate   Side  of  this  Court ;  and   on 
the  facts  of  that  case  it  was  not   essential  to 
decide    the    question    as   to    whether  the 
application  of  the  English  rule  was  neces- 
sarily excluded  in  India  in  virtue  of  the  pro- 
visions of  s.  73  of  the  Indian  Contract   Act. 
Then  Macleod,  C.J.,  considered  this  question 
in  Ranckhod  Bhawan  v.  Klanmohandas  Ramji 
(4)  and  held  that  s.  73  imposed  no  exception 
on  the  ordinary  law  as  to  damages  whatever 
the  subject  matter  of  the  contract,   and  in 
effect  he  held  that  the   English  rule   would 
not  apply  in  India  unless  it  could  be  shown 
that  the  parties  to  the  contract  expressly  or 
impliedly  contracted  that  this   should   not 
reader  the  vendor   liable  in   damages.     In 
Hasan  Premji  v.    Jerbai,   O,   0.  J.  Appeal 
No.  41  of  1920,  decided  bv  Macleod,  C.J.,  and 
Shaty  J  ,  on  December  17, 1920,  (Unrep  ),  the 
question  came  up   for  consideration  on    the 
Original   Side  before  the   Court    of  Appeal, 
and  it  was  dealt  with  as  follows  : 
^"Therefore,  it  must  follow  that  the^defend- 
ants  have  committed  a  breach  of  their  agree- 
ment, and  under  s.  73  of  the  Indian  Contract 
Act,    they    would  be   liable    to    damages. 
What  the  measure  of  damages  would  be 
must  depend  entirely  on  a.  contract  of  this 
description  on  the  facts  of  this  case.    In  an 
ordinary  contract  for  the  purchase  and  sale 
of  land  in  which  the  defendant  contracts  to 
make    out  a  marketable    title,    the  usual 
result    would  be    if    without    any  default 
on    the    part    of     the     vendor     he    was 
unable  to  make    out    a   marketable    title, 
that  the    bargain    would  be    off  and   the 
vendor  would  have  to  pay  the  purchaser's 
costs  of  the  agreement  arid  of  the  inspection 
of  the  title-deeds.     But  if  the  conduct  of 
the  vendor  in  committing  the  breach  shows 
(2)  11  B  272;  6  Ind  Deo.  (N.  s.)  178. 
(A)  21  B.  17:>,  11  Ind.  Dec.  (N.  s )  113. 
•f4)  32  B.  105;  9  Bom,  L,  K,  1087, 


DHANRAJGIRJI  NARSINGG1RJI  C.  TATA  SONS  LTD. 


that  he  has  been  guilty  of  any  default  of  a 
wilful  nature,  then  the  damages  would  be 
calculated  on  a  higher  scale,  and  the  measure 
of  damages  would  be  the  difference  between 
the  contract  price  and  the  market  price  of 
the  property  at  the  date  of  the  breach.  In 
any  event,  the  defendants  would  have  to  pay 
the  costs  of  the  plaintiff  up  to  the  time  they 
found  they  could  not  complete  the  bargain." 

In  that  case  it  was  held  on  the  facts  that 
the  defendants  had  been  guilty  of  wilful 
default,  and  accordingly  the  order  direct- 
ing an  inquiry  as  to  the  amount  of  damages 
on  the  footing  of  the  difference  between  the 
contract  price  and  the  market  price  was 
upheld.  The  same  Bench  had  occasion  to 
consider  the  same  point  again  in  Vallabhdas 
Tuln  Das  v.  Nagar  Juthabidas  Juthabai  (5) 
when  Macleod,  C.  J  ,  observed  as  follows 
page  1223*):  — 

"It  is,  therefore,  a  case  of  a  vendor  con- 
tracting to  sell  property  to  which  he  knew 
that  his  title  was  defective  ;  and  the  only 
question  at  issue  is  whether  he  should  pay 
damages  calculated  according  to  the  ordi- 
nary rule  in  the  case  of  a  breach  of  contract, 
or  whether  he  is  only  bound  to  pay  the 
purchaser's  costs  of  the  agreement  and 
of  the  investigation  of  title.  I  do  not  wish  to 
exclude  the  possibility  of  there  being  cases 
in  which  it  may  be  found  there  was  an 
implied  contract  that  in  the  eventof  the  title 
proving  to  be  defective  without  any  default 
of  the  vendor,  he  should  not  be  liable  to  pay 
damages  according  to  the  ordinary  rule." 

In  that  particular  case  the  Court  found 
that  it  was  a  case  in  which  the  defendant 
should  be  held  liable  in  damages  on  the  foot- 
ing of  wilful  default. 

The  question  now  is  whether  the  applica- 
tion of  the  English  rule  is  necessarily  ex- 
cluded   in  all  cases,    and    whether    there 
should  be  a  reference  to  the  Commissioner 
to  determine  the  amount  of  damages  on  the 
basis  of  the  difference  between  the  con  tract 
price  and  the  market  value  of  the  property 
on  the  date  of  the  breach.    On  a  careful 
perusal  of  the  judgments    in   Bain  v.  For- 
Ihergill  (1)  which  affirmed  the  rule  in  Flureau 
v.  Thomhill  (6),  and  the  terms  of  s.  73  of  the 
Indian  Contract  Act,  it  seems  to  me  that 
the  application  of  the  rule  is  not  necessarily 
excluded.    The  question  must  be    answer- 
ed on  the  facts  and  circumstances  of  each 
case  whether  that  rule  would  apply  to  that 
particular  case.    That  is  the   view  which 
(5)  92  Ind.  Cas.  1-43,  2:1  Bom.  L  K.  1213, 
rfi)  (1776)2  W  M  Bh  1078;  96  E.  R.  639. 
"Page  of  23  Bgm  ~L7~K.— [Ed.\  " 


230 


DHANRAJOIRJI  NARSINQQ1RJI  V,  TATA  60N8  LTD. 


[92  I.  0. 1926J 


was  taken   practically  in    the  unreported 
judgment  in  Hasan  Premji  v.  Jerbai,  0. 
C.J.  Appeal  No.  41  of  1920,  decided 'by 
Macleod,  0.  J.,  and  Shah,  J.,  on  December 
17,  1924  (Unrep.)]  and  in   Vallabhdas  Tulsi 
Das  v.  Nagardas  Juthabai  (5).    On  the  pre- 
sent state  of  the  authorities  that  is  the  view 
which    I  am  still  inclined  to  take.  I  am 
aware  of  the  view  taken  by  the  Calcutta  High 
Court  in    Nabinchandra  Saha  Pramanick 
v.  Krishna  Barana  Dasee  (7)  and  by  the  Full 
Bench  of  the  Madras  High  Court  in  Adikesa- 
van  Naidu  v.  Gurunatha    Chetti  (8).  I  have 
referred  in   detail   to  the  opinions  which 
have  been  expressed  on    different     occa- 
sions in  this  Court.    As  I  read  the  judg- 
ment of  the  Chief  Justice  in   the    case  of 
Vallabhdas  Tulsi  Das  v.  Nagardas  Juthabai 
(5)   it    seem    to     me    that    in    a    proper 
case  the  rule  in  Bain  v.  Fortheryill  (1)  can 
be  and  may  be  applied    in  India.      It    is 
possible  that  it  may  become  necessary  here- 
after to  have  this  question  of  recurring  im- 
portance considered   and  decided  by  a  Full 
Bench.    But  having  regard   to  the  circum- 
stances of  this  case,  it  seems  to  me  that  under 
the    present  state    of  the  authorities    the 
application    of    the     English     rule   is    not 
excluded.    I,  therefore,  proceed  to  consider 
whether  on  the  facts-  of  this  case  that  rule 
could  be  properly  applied. 

As  regards  the  facts  it  is  clear  that  from 
the  beginning  the  defendant's  position  was 
that  the  representation  of  Dr.  Billimoria 
that  he  was  entitled  to  a  lease  for  a  further 
period  of  six  years  was  false,  and  that  he 
was  otherwise  in  a  position  to  fulfil  the 
contract.  If  the  allegation  of  Dr.  Billimoria 
had  been  dealt  with  in  the  suit  filed  by  him 
on  its  merits,  we  would  have  been  in  a  better 
position  to  know  what  the  real  fact  was. 
But  there  were  conflicting  considerations  in 
that  suit.  On  the  one  hand,  there  was 
the  plea  of  Dr.  liillimorin.  that  there  was  an 
agreement  to  give  him  a  lease  for  a  further 
period  of  six  years.  Even  if  that  allega- 
tion was  not  proved,  the  defendant  had  to 
face  a  further  plea  on  account  of  the  provi- 
sions of  the  Rent  Act.  If  Dr.  Billimoria  could 
not  be  evicted  from  the  premises,  he  would 
not  be  in  a  position  to  give  vacant  posses- 
sion of  the  property  in  fulfilment  of  his 
contract  with  the  plaintiffs.  Under  the 
circumstances  the  parties  compromised  the 
matter,  and  in  February  1921,  the  compro- 

(7)  0  Tnd  Gas.  523;  38  0.  453;  15  0  W.  N.  420. 

(8)  39  Ind.    Ca*.  358;   40  M,    338;    32  M   L.   J.  1£0; 
(1917)  M,  W,  N,  171;  5  L.  W,  425;  22  M.  L.  T.  300. 


misearrived  at  was  thatDr.  Billimoriawas  to 
vacate  the  premises  by  February  28,  1923. 
That  compromise  does  not  indicate  how  far 
the  allegation  as  to  the  contract  between 
him  and  the  defendant  for  a  further  lease 
was  true.  Narsinggirji  died  before  the  suit 
came  on  forbearing. 

On  the  present  record,  therefore,  my  view 
is  that  the  defendant's  contention,  that  it 
is  the  improper  claim  on  the  part  of  Dr. 
Billimoria  that  has  really  come  in  the  way  of 
his  fulfilling  his  contract  with  the  plaintiffs, 
cannot  be  rejected.  There  is  nothing  on 
the  record  to  show  that  the  defendant  was 
otherwise  not  in  a  position  to  fulfil  the 
contract  or  that  he  was  unwilling  to  fulfil  the 
contract.  In  fact  before  any  investigation 
of  the  title  took  place,  the  plaintiffs  also 
realised  that  the  contract  could  not  be 
put  through  unless  this  difficulty  which 
arose  in  consequence  of  the  claim  by  Dr. 
Billimoria  was  removed.  That  difficulty 
could  not  be  removed  within  the  time  fixed 
by  the  plaintiffs  and,  therefore,  the  contract 
could  not  be  fulfilled.  Then  \ve  should 
have  regard  to  the  informal  manner  in 
which  the  terms  of  the  contract  are  evi- 
denced in  this  case.  The  usual  agreement 
which  we  find  in  such  cases  between  the 
parties  was  not  executed.  The  terms  are 
evidenced  by  the  two  letters  which  are 
written  by  the  broker,  and  it  is  sufficiently 
indicated  in  these  letters  that  the  defendant 
agreed  to  deduce  a  marketable  title  though 
the  expression  used  in  the  letter  is  very 
inapt.  In  fact  a  marketable  title  could 
not  be  deduced  by  the  defendant  under  the 
circumstances  which  I  have  indicated. 
There  is  nothing  in  the  circumstances  of 
the  case  nor  in  the  terms  of  the  contract, 
to  show  that  the  plaintiffs  were  not  alive 
to  the  reasonable  possibility,  which  exists 
in  such  cases,  of  the  vendor  being  un- 
able to  make  a  good  title  without  any 
default  on  his  part.  It  appears  to  me 
that  this  case  falls  clearly  within  the  rule 
of  Flureau  v.  Thornhill  (6)  as  explained 
and  affirmed  by  the  House  of  Lords  in  Bain 
v.  Fothergill  (1). 

I  am,  therefore,  of  opinion  that  under  the 
circumstances  of  this  case  ifcis  not  necessary 
to  make  any  reference  to  the  Commissioner 
for  any  inquiry  into  the  quantum  of  dama- 
ges. The  plaintiffs  will  get  damages  by 
way  of  costs  incidental  to  the  investigation 
of  title.  This  would,  in  my  opinion,  meet 
the  justice  of  the  case.  I  would,  there- 
fore, affirm  the  decree  appealed  from  so  far 


[92  I.  0.  1926J 

as  it  relates  to  the  return 
money,  the  dismissal  of  the  counter-claim, 
and  the  cost  of  the  investigation  of  title. 
But  I  would  set  aside  the  decree  so  far 
as  it  relates  to  the  reference  to  the  Commis- 
sioner for  inquiry  into  the  question  of 
damages,  and  dismiss  the  rest  of  the  plaint- 
iffs' claim  for  damages 

Taking  all  the  circumstances  of  the  case 
into  consideration,  including  the  fact  that 
the  plaintiffs'  claim  for  damages  on  the 
higher  scale  has  been  disallowed,  we  direct 
that  the  plaintiffs  should  get  their  costs  in 
the  lower  Court  from  the  defendant,  and 
that  each  party  should  bear  his  own  costs  of 
appeal. 

Fawcett,  J,— I  agree  that  there  was  a 
breach  of  contract  on  the  part  of  the  defend- 
ant on  November  20,  1920.  I  think,  how- 
ever, that  the  breach  is  not  so  much  due  to 
a  failure  to  show  a  marketable  title,  as  a 
failure  to  show  a  title,  subject  only  to  a 
lease  expiring  on  March  J,  1920,  and  not 
to  any  longer  or  other  lease.  On  the  oral 
evidence  that  was  adduced,  and  accepted  by 
the  learned  Judge  in  the  Court  below,  there 
was  a  representation  by  the  original  defend- 
ant that  the  only  lease  to  which  the  pro- 
perty was  subject  was  one  expiring  on 
March  1,  1920,  and  the  learned  Judge  has 
held  that  that,  was  a  material  representa- 
tion, and  the  plaintiffs  were  justified  in 
rescinding  the  contract.  That  finding  is 
nob  disputed  before  us,  and  the  difficulty 
that  really  prevented  the  performance  of  the 
contract,  in  this  case  was  the  failure  of  the 
defendant  to  pass  the  property,  subject  only 
to  this  particular  lease,  there  being  in  fact 
a  claim  by  .Dr.  BilLmoria  that  he  was  en- 
titled to  a  longer  lease.  This  claim  was  not 
a  negligible  one,  for  in  May  1920  he  brought 
a  suit  asking  that  the  defendant  should  be 
ordered  specifically  to  perform  the  agree- 
ment to  lease  the  property  for  six  years, 
and  also  that  he  should  be  restrained  by 
an  injunction  from  selling  or  completing 
•  the  sale  of  the  premises  to  the  plaintiffs, 
except  subject  to  the  six  years1  lease  that 
he  had  set  up.  The  original  date  fixed  for 
performance  was  in  August  1920,  and  I 
agree  with  the  learned  Chief  Justice  that  in 
the  circumstances  of  the  cage  the  plaintiffs 
were  entitled  on  November  6,  1920,  to  give 
notice  to  the  defendant  that  they  did.  I 
also  agree  that  in  the  circumstances  there 
was  a  reasonable  time  fixed  in  the  notice 
for  the  defendant  to  remove  the  hitch  about 
this  claim  of  Dr.  Billimoria.  It  is  no 


DHANRAJGIRJI  NARSINGQIRJI  V,  TATA  SONS  LTD.  231 

of  the  earnest     doubt  true  that  there  would  be  great  diffi- 


culties in  getting  the  suit  decided   before 
November  20,  1920.  But  there  were  other 
ways  of  removing  the  impediment,  such  as 
an  amicable  settlement;   and   it    is    quite 
clear  that  the  law  in  a  case   of  this  kind 
is  that  the  intending  purchaser  is  not  bound 
to  wait  indefinitely  until  a  claim  has  been 
got  rid  of  in  the  ordinary  course  of   litiga- 
tion.   The  defendant  had  due  notice  from 
the  plaintiffs  to  get  rid  of  this  claim,  and 
I  do  not  accept  the  contention  of  the  learned 
Counsel  for  the  appellant  that  they  misled 
the  defendant  and   so   were  disentitled   to 
give  their  notice  of  Novembar  8, 1950. 

The  next  question  is  as  to  the  alleged 
right  of  the  defendant  to  retain  the  deposit. 
made  by  the  plaintiffs  On  this  point,  it 
seems  to  me  clear  that  there  being,  as  I 
have  held,  a  breach  of  the  contract  on  the 
part  of  the  defendant,  the  plaintiffs  were 
entitled  to  recover  their  deposit,  and  no 
facts  are  shown  which  make  it  inequitable 
that  the  plaintiffs  should  so  recover  it,  or 
make  it  equitable  that  the  defendant  should 
retain  it  The  difficulty  that  arose  was  not 
in  any  way  duo  to  any  default  on  the  part 
of  the  plaintiffs,  and  so  far  as  there  was 
any  conduct  conducive  to  Dr.  Billimoria'a 
claim,  it  must  have  arisen  on  the  part  of 
the  defendant  rather  than  on  the  part  of  the 
plaintiffs. 

Next  as  to  the  question  of  damages.  The 
plaintiffs  claimed  the  sum  of  five  lacs, 
being  the  difference  of  the  price  at  which 
they  had  agreed  to  purchase  from  the  de- 
fendant and  the  price  at  which  they  had 
entered  into  a  contract  to  sell  to  8.  R. 
BomanjL  But  that  claim  can  be  disposed 
of  very  shortly  by  a  reference  to  illustration 
(o)  to  s.  73  of  the  Indian  Contract  Act, 
which  shows  that  it  is  not  the  profit  which 
would  have  arisen  to  the  plaintiff,  which  is 
to  be  taken  into  account,  but  the  market 
price  of  the  property  on  the  Hate  of  the 
breach.  ,  At  the  same  time,  as  ruled  in 
Engell  v.  Fitch  (9)  the  profit  which  the 
plaintiffs  could  have  made  on  a  re-sale,  if 
uncontradicted  by  other  evidence,  is  evi- 
dence, of  the  latter  value, 

The  main  question  is  whether  in  the 
circumstances  of  this  case  the  plaintiffs 
should  be  allowed  damages  under  what  may 
be  called  the  ordinary  rule  of  the  difference 
between  the  price  which  they  agreed  to 
pay  the  defendant  and  the  market  price  on 

(9)  (1869)  4  Q  B,  639;  10  B.  &  S.  738,  38  L.  J.  Q.  B, 
301, 17  W,  R.8J1 


232 


DHANRAJOIRJI  NARSIttGQISJ!  t>.  TATA  SONS  LTD. 


the  date  of  the  breach,  namely,  November 
20,  1920.  That  is  not  a  definite  rule  which 
i8  laid  down  in  the  text  of  s.  73,  and  it  is 
not  the  law,  as  I  understand  it,  that  in 
every  case  where  a  contract  of  this  kind  has 
been  broken  the  party  who  suffers  from  the 
breach  is  entitled  to  get  compensation  in 
that  particular  manner.  There  can  be  ex- 
ceptions, and  the  illustrations  to  s.  73  mere- 
ly lay  down  what  is  expressed  in  s.  51  (3) 
of  the  English  Sale  of  Goods  Act,  viz.,  that 
the  measure  of  damages  in  such  a  case  is 
prima  facie  to  be  ascertained  in  that  manner. 
Each  case,  in  my  opinion,  depends  upon  its 
own  particular  circumstances,  and  1  agree 
with  the  opening  remark  of  the  Chief 
Justice  Sir  Norman  Macleod  in  the  passage 
quoted  in  Vallabhdas  Tulsi  Das  v.  Nagar 
Das  Juthabai  (5)  from  his  judgment  in 
another  case  [Hasan  Premji  v.  Jerbai, 
0. 0.  J.  Appeal  No.  41  of  1920,  decided 
by  Macleod,  C.  J.,  and  Shah  J.,  on  Decem- 
ber 17,  1920  (Unrep.)  that  "  what  the 
measure  of  damages  would  be  must  depend 
entirely  in  a  contract  of  this  description  on 
the  facts  of  each  case."  He  then  goes  on 
to  say  that: — 

"In  an  ordinary  contract  for  the  purchase 
and  sale  of  land  in  which  the  defendant 
contracts  to  make  out  a  marketable  title, 
the  usual  result  would  be,  if  without  any 
default  on  the  part  of  the  vendor,  he  was 
unable  to  make  out  a  marketable  title,  that 
the  bargain  would  be  off  and  the  vendor 
would  have  to  pay  the  purchaser's  costs  of 
the  agreement  and  of  the  inspection  of  the 
title-deeds." 

That  is  practically  applying  the  rule 
Adopted  in  England  in  the  leading  case  of 
Bain  v.  Fothergill  (1)  and  if  the  Chief 
Justice  intended  to  go  back  on  his  previous 
decision  in  Rdnchhod  Bhawan  v.  Man- 
Mohandas  Ramji  (4).  1  should  certainly 
feel  great  difficulty  in  following  it.  The 
view  taken  in  Ranchhod  Bhawan  v.  Man- 
mohandas  Ramji  (4)  has  been  followed  in 
the  Calcutta  and  'Madras  High  Courts,  as 
already  mentioned  in  my  learned  brother's 
judgment,  as  well  as  in  the  Lahore  High 
Court  in  Jai  Kishen  Das  v.  Arya  Priti 
Nidhi  Sabha  (10)  and  in  my  opinion  the  dis- 
cretion which  a  Court  has  under  s.  78  can- 
not properly  be  restricted  by  any  Judge- 
made  rule  that  every  case  of  a  particular 
kind  must  be  dealt  with  in  a  particular 
manner,  such  as  the  rule  laid  down  in  Bain 

.  (10)  58  Ind.  Cas.  757;  1  L.  380  at  p.  385;  80  P.  W.  R. 
J920,  55  P.  L.  R,  192J.          ' 


[92  L  0.  1926] 

v.  Fothergill  (1).  I  think  each  case  de- 
pends upon  its  own  facts,  and  I  may,  for 
instance,  refer  to  a  case  which  I  had  before 
me  last  year,  viz.,  Shamsuddin  Tajbhai  v. 
Dahyabhai  (11).  The  plaintiff  there  sued 
for  damages  for  breach  of  contract  to  sell 
immoveable  property,  and  though  T  held 
that  the  defendant  had  been  deliberately 
trying  to  get  out  of  his  agreement  and, 
therefore,  wns  guilty  of  conduct  which 
would  presumably  come  under  the  head  of 
"wilful  default"  on  his  part,  yet  in  the  cir- 
cumstances of  the  case,  namely,  certain 
delay  on  the  part  of  the  plaintiff,  I  thought 
the  plaintiff  was  not  entitled  to  recover 
any  damages  other  than  the  taxed  costs  of 
and  incidental  to  the  agreement  for  sale, 
plus  the  forfeiture  of  the  defendant's  earn- 
est money.  In  my  opinion  no  hard  and 
fast  rule  can  be  laid  down  in  these  cases, 
and  if  it  were  necessary  for  the  purposes  of 
this  case  to  decide  whether  the  rule  laid 
down  in  Bain  v.  Fothergill  (1)  should  be 
applied  as  an  invariable  rule  of  law,  then 
I  agree  with  my  learned  brother  that  it 
would  be  desirable  to  have  a  reference 
about  it  to  a  Full  Bench.  But  I  think  we 
agree  that  the  circumstances  of  each  case 
have  to  be  considered  in  deciding  what  is 
reasonable  and  proper  compensation  for 
the  damage  caused  by  a  breach  of  contract 
under  s.  73  of  the  Indian  Contract  Act; 
that  the  Court  is  not  bound  in  every  case  to 
award  damages  on  the  basis  of  a  difference 
between  the  price  at  the  date  of  the  contract 
and  the  market  price  at  the  date  of  the 
breach;  and  that  the  rule  laid  down  in 
Bain  v.  Fothergill  (1)  is  not  necessarily 
excluded  and  can  be  properly  applied  if  the 
circumstances  justify  it. 

In  this  particular  case,  the  circumstances 
are  somewhat  peculiar.  The  contract  was 
entered  into  at  a  time  when  the  Rent  Act 
was  in  force  in  Bombay,  and  when  un- 
doubtedly there  were  difficulties  in  the  way 
of  an  owner  obtaining  possession  of  land 
which  had  been  leased  to  a  tenant.  These 
difficulties  were  within  the  knowledge  of 
both  the  parties  to  thfs  &uit.  The  dase  is 
thus  a  very  different  one  from  that  of 
Engell  v.  Fitch  (9)  which  was  another  case 
where  the  trouble  arose  on  account  of  a 
failure  to  get  vacant  possession.  The  vendors 
were  mortgagees  who  sold  with  vacant  p6s- 
session,  and  it  was  held  that  they  had  de- 
liberately failed  to  eject  the  mortgagor,  and 

(11)  84  Ind.  Cas.  947:  26  Bom.  L.  R.  105;  48  B.  3&8; 
(1924)  A  I.  R,  (B.)  357r 


1.  0.  1928] 


CHINA  V,  TE  TBOE  SBtfCL 


233 


therefore,  there  had  been  a  "  wilful  default11 
on  their  part  which  took  the  case  out  of 
the  rule  in  Bain  v.  Fothergilb  (1).  But  this 
cannot  apply  in  the  present  case  where  the 
defendant  would,  quite  apart  from  the 
question  whether  he  had  or  had  not  given 
to  Dr.  Biliimoria  a  fresh  lease  of  the  pre- 
mises, not  necessarily  get  vacant  possession 
by  August  1920,  even  although  Dr.  Billi- 
moria's  lease  expired  on  March  1,  1920.  I 
bear  in  mind  the  remark  of  the  learned 
Judge  that  the  same  difficulties  would  not 
have  confronted  the  plaintiffs,  who  could, 
he  says,  have  alleged  that  they  wanted  the 
land  for  their  own  occupation  or  for  build- 
ing operations.  But  they  could  hardly 
have  alleged  that  they  wanted  it  for  their 
own  occupation  in  view  of  the  admission 
that  they  had  bought  it  for  a  syndicate,  and 
as  regards  building  operations,dthas  to  be 
shown  under  the  Rent  Act  that  the  property 
is  reasonably  required  for  such  operations. 
It  is  not  by  any  means  certain  that  the 
plaintiffs  would  have  got  an  order  for  de- 
livery of  possession  by  Dr.  Biliimoria,  if 
he  had  contested  the  matter,  within  any 
specific  period  of  time,  and  these  peculiar 
difficulties  can,  I  think,  be  fairly  taken  into 
consideration  in  regard  to  the  question  of 
damages. 

Another  circumstance  which  I  think  may 
be  taken  into  consideration  in  this  case  is 
the  fact  that  this  was  a  contract  in  Bombay, 
where  conveyancing  work  and  negotiations 
in  regard  to  purchase  and  sale  of  property 
are  carried  on  in  a  very  similar  manner  to 
that  followed  in  England.  The  House  of 
Lords  have  laid  down,  for  reasons  connected 
with  conveyancing  difficulties,  that  the  rule 
in  Bain  v.  Fothergill  (1)  is  a  'reasonable  one 
to  apply  in  certain  circumstances,  and, 
therefore,  in  a  case  where  the  plaintiff  has 
no  very  outstanding  circumstances  to  sup- 
port his  claim  to  damages  on  a  higher  scale, 
the  fact  of  the  contract  being  made  under 
conditions  similar  to  those  obtaining  in 
England  is,  I  think,  a  factor  which  can 
reasonably  be  taken  into  account. 

Then  there  is  the  further  fact  that  the 
suit  brought  by  Dr.  Biliimoria  was  com- 
promised, and  that  in  the  circumstances  it 
is  impossible  to  say  with  certainty  that  his 
claim  was  due  to  some  conduct  of  the  de- 
fendant which  should  enhance  the  damages 
otherwise  awardable.  It  seems  to  me  that, 
having  regard  to  the  special  circumstances 
of  the  case,  the  difficulty  which  arose  was 
not  entirely  due  to  defendant's  conduct, 


but  can  also  be  reasonably  ascribed  to  the 
difficulties  of  the  kind  that  I  have  mention- 
ed, and  that  substantial  justice  is  done  by 
putting  the  parties  back  in  the  position 
from  which  they  originally  started,  that  is 
to  say,  that  the  plaintiffs  should  merely  re- 
cover their  deposit  and  get  their  costs  of 
investigating  the  title. 

I,  therefore,  agree  with  the  decree  pro- 
posed by  my  learned  brother. 

K.  s.  B.  Decree  varied. 


RANGOON  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  89  OF  1924. 

April  27,  1925. 

Present :— Sir  Sydney  Robinson,  KT., 

Chief  Justice,  and  Mr.  Justice  Maung  Ba. 

CHINA  AND  ANOTHER— PLAINTIFFS  — 

APPELLANTS 

versus 

TE  THOtt  SENG— DEFENDANT— 
KESPONDENT. 

l\Ustake  of  fact — Money  paid,  when  can  be  recovered 
—  Mistake  between  payer  and  t (wd  person^  effect  of 

Where  money  is  paid  under  a  mistake  of  fact 
intentionally,  without  reference  to  the  truth  or  false- 
hood of  the  fact,  the  plaintiff  meaning  to  waive  all 
enquiry  into  it,  and  that  the  person  receiving  shall 
have  the  money  at  all  events,  whether  the  fact  be  true 
or  false,  the  latter  is  entitled  to  retain  it,  but  if  it  is 
paid  under  the  impression  of  the  truth  of  a  fact  which 
is  untrue,  it  may  ordinarily  be  recovered  back, 
however  careles^  the  party  paying  may  have  been  in 
omitting  to  use  due  diligence  to  enquire  into  the  fact. 
The  mistake  must,  however,  be  one  as  between  the 
person  paying  and  the  person  receiving  the  money  and 
as  to  some  fact  affecting  the  right  of  the  payee  to 
receive  the  money.  |p.  234,  col.  2;  p.  235,  col.  ].] 

Appeal  against  a  decree  of  this  Court 
on  the  Original  Side  in  Civil  Regular 
No  610  of  1922. 

Mr.  Clifton,  for  the  Appellants. 

Mr.  Young,  for  the  Respondent. 

JUDGMENT.— The  suit  out  of  which 
this  appeal  arises  is  founded  on  money  had 
and  received  to  plaintiffs1  use  In  the 
plaint  originally  filed  there  was  an  allega- 
tion of  negligence  on  the  part  of  the  de- 
fendant Bank.  Defendant  demanded  the 
particulars  of  the  alleged  negligence.  The 
plaintiff  wae  unable  to  supply  them,  and 
the  Court  ordered  that  this  paragraph  be 
struck  out,  plaintiff  reserving  permission 
to  file  a  plea  of  negligence  if,  after  inspect- 
ing documenls,  he  was  in  a  position  to  do 
so.  Eleven  days  later  an  amended  plaint 


$34 


CHINA  V.  TE  THOE  8ENO, 


was  filed  and  all  allegations  of  negligence 
were  omitted. 

There  is  no  dispute  as  to  the  facts.  The 
plaintiff  firm  carries  on  business  in  Penang 
under  the  style  of  Ghee  Seng  &  Co.  They 
have  a  branch  in  Rangoon  under  the  style 
of  Ghee  Seng  Chan  &  Co.  On  the  16th 
July  1922,  plaintiff  firm  in  Penang  received 
a  telegram  purporting  to  come  from  their 
Rangoon  branch.  It  ran  as  follows  : — 
"Rupees  bought  pay  Mercantile  five  thou- 
sand. Advice  follow  letter  Ghee  Seng 
Chan."  On  receipt  of  this  telegram,  plaint- 
iff assumed  it  came  from  his  Rangoon 
branch  and  went  to  the  Mercantile  Bank 
and,  showing  them  the  •  '  .. :  .  Desired 
to  pay  in  five  thousand  •  •  V  Bank 

declined  to  receive  the  money  saying  that 
they  had  had  no  instructions  to  do  so.  On 
the  18th  of  July,  the  Mercantile  Bank 
received  a  telegram  "Receive  live  thousand 
Ghee  Seng  &  Co..  China  and  Southern 
Bank."  Thereiipon  they  informed  plaintiff 
that  they  had  now  received  advice  and 
plaintiff  paid  them  five  thousand  dollais. 
He  was  given  a  receipt  in  the  ordinary 
printed  form  that  the  Bank  uses,  and,  in 
that,  it  is  stated  "For  the  credit  of  China 
and  Southern  Bank,  Rangoon."  It  appears 
that  one  Gaw  Keong  Pho  went  to  the 
defendant  Bank  and  offered  to  eell  them 
5,000  dollars.  He  told  them  that  he  was 
the  travelling  agent  of  Gee  Seng  &  Co  of 
Penang.  They  asked  if  he  had  a  power-of- 
attorney  or  any  documents  to  prove  this. 
He  said  he  had  not.  They  then  enquired 
how  he  would  pay  them  5,OOJ  dollars  and 
he  said  that  Gee  Seng  &  Co.  would  pay  the 
Mercantile  Bank.  They  then  instructed  the 
Mercantile  Bank  to  receive  the  money. 
After  receiving  advice  from  the  Mercantile 
Bank  that  the  money  had  been  paid  in, 
they  paid  Gaw  Keong  Pho  the  equivalent 
in  Rupees.  Subsequently  plaintiffs  enquir- 
ed from  their  Rangoon  branch  and  found 
that  they  had  not  sent  this  telegram.  Gaw 
Keong  Pho  was  searched  for,  but  had,  of 
course,  disappeared.  It  is  obvious  that  he 
committed  a  fraud  upon  the  defendant 
Bank  and  upon  the  plaintiffs. 

The  learned  Judge  in  the  Court  below 
treated  the  case  as  being  one  raising  the 
question  as  to  which  of  two  innocent  parties 
was  to  suffer  by  this  fraud.  He  held  that 
plaintiffs  had  not  done  or  omitted  to  do  any- 
thing that  they  ought  to  have  done  which 
made  the  success  of  the  fraud  more  easy, 
lint  that  the  defendant  Bank  had  not 


[92  I.  0,  1926J 

made  enquiries  and  had  so  conduced  to  the 
fraud,  and  he,  therefore,  held  that  plaintiff 
was  entitled  to  recover  his  money  back  and 
that  the  defendant  Bank  was  bound  to 
restore  it.  He  further  held  that  even  apart 
from  that  the  money  was  paid  to  the 
Mercantile  Bank  by  the  plaintiff  for  his 
own  use,  and  that  the  defendant  Bank  had 
received  that  money  on  account  of  the 
plaintiff  firm  and,  through  no  fault  of  the 
plaintiff,  had  paid  it  away  wrongly  to  some- 
one else. 

The  appeal  has  been  argued  before  ua 
solely  on  the  question  as  to  whether  this 
was  money  paid  by  mistake,  and  reliance  is 
placed  on  the  case  of  Kelly  v.  Salary  (I). 
In  that  case  Parke,  J.,  said  :  "If,  indeed,  the 
money  is  intentionally  paid,  without  reference 
to  the  truth  or  falsehood  of  the  fact,  the 
plaintiff  meaning  to  waive  all  inquiry  into 
it,  and  that  the  person  receiving  shall  have 
the  money  at  all  events,  whether  the  fact 
be  true  or  false,  the  latter  is  certainly 
entitled  to  retain  it ;  but  if  it  is  paid  under 
the  impression  of  the  truth  of  a  fact  which 
is  untrue,  it  may,  generally  speaking,  be 
'  recovered  back,  however  careless  the  party 
paying  may  have  been,  in  omitting  to  use 
due  diligence  to  inquire  into  the  fact,  In 
such  a  case  the  receiver  was  not  entitled  to 
it,  nor  intended  to  have  it." 

We  wero  also  referred  to  the  dictum  of 
AVjili.v:  .-s  J.,  in  Townsend  v.  Crowdy  (2)  : 
"No  doubt,  at  one  time  the  rule  that  money 
paid  under  a  mistake  of  fact  might  be  re- 
covered back,  was  subject  to  the  limitation 
that  it  must  be  shown  that  the  party  seeking 
to  recover  it  back  had  been  guilty  of  uo 
laches.  But,  since  the  case  of  Kelly  v.  Solari 
(1)  ithas  been  established  that  it  isnotenough 
that  the  party  had  the  means  of  learning  the 
truth  if  ho  had  chosen  to  make  inquiry. 
The  only  limitition  now  is,  that  he  must 
not  waive  all  inquiry."  Now,  it  cannot  be 
said  in  this  case  that  plaintiff  intended  to 
waive  all  inquiry  or  intended  that  defend- 
ant Bank  was  to  receive  the  money  at  all 
events,  and,  if  the  rule  stopped  there,  plaint- 
iff would  be  entitled  to  a  decision  in  his 
favour.  However,  there  is  a  further  fact  to 
be  weighed  in  deciding  these  cases,  and  that 
is,  the  mistake  must  be  one  as  between 
the  person  paying  and  the  person  receiving 


(1)  (1841)  9M.&  W.   54;  11  L.  J.  Ex,  10;  6  Jur.  107; 
152  E  R  24. 

(2)  (1860)  8  0  B.  (N  s.)  477;   29  L,  J.    0.  P.  300;  2  L. 
T.  537;  7  Jur.  (N.  s.)  71;  141  Ej.  B.  1?$1;  1?5  S.  R  740, 


(92  I.  0.  1926J  FIRM  JAI.SINOH-DIYAL  SINGH  t>.  NARMAL  DAS, 


235 


the  money  and  as  to  some  fact  affecting  the 
right  of  the  payee  to  receive  the  money.  4 

In  Chambers  v.  Miller  (3),  this  principle 
is  dealt  with  by  Erie,  C.  J.  It  was  a  case 
in  which  a  person  presented  a  cheque  for 
payment  at  a  Bank.  The  cashier  paid  th6 
money  but,  while  the  plaintiff  was  counting 
the  money,  he  discovered  that  their  client's 
account  was  overdrawn  and  demanded  the 
money  back.  On  plaintiff's  refusing,  the 
money  was  taken  forcibly  from  him  and  a 
suit  was  brought  for  assault  and  trespass  for 
taking  the  money  by  force,  and  it  was  urged 
that  plaintiff  was  entitled  to  recover  it. 
Erie,  C.  J.,  said  :  "It  is  true  that  there  was 
a  mistake  in  cashing  the  cheque  at  all,  but 
that  was  a  mistake  as  between  the  defend- 
ants and  their  customer.  As  between  the 
plaintiff  and  the  defendants  there  was 
no  mistake  at  all  ;  the  plaintiff  asked  the 
defendants  to  cash  the  cheque,  and  they 
did  so.  But  then  the  defendants  say 
that  hy  reason  of  this  mistake  they  had 
a  right  to  revoke  the  transaction  ;  but 
it  is  clear  to  me  that  the  money  having 
once  passed,  it  is,  notwithstanding  a 
mistake  of  this  kind,  a  perfectly  good  pay- 
ment and  irrevocable.  As  to  the  case  of 
Kelly  v.  Solari  (1)  and  others  of  that  class 
which  have  been  cited,  there  the  money 
was  paid  to  a  party  who  had  no  right  to  it 
whatever,  and  the  mistake  was  between  the 
parties  themselves  as  to  the  money  being 
due  Here  the  money  was  due,  and  as  fcbet- 
ween  the  defendants  and  the  plaintiff  there 
was  no  manner  of  mistake  whatsoever,  and 
I  am  quite  clear  that,  under  these  circum- 
stances, the  defendants  could  never  have 
recovered  back  the  money/' 

Williams,  J.,  in  his  judgment  said  :  "It 
may  be  that,  if  he  had  been  aware  of  all  the 
facts  of  which  he  afterwards  became  aware 
he  would  not  have  paid  the  money,  but  you 
cannot  recover  back  money  because  you 
have  paid  it  in  ignorance  of  some  fact,  which 
had  you  known  it,  would  have  influenced 
you  not  to  pay  it ;  that  fact  being  one  with 
which  the  payee  has  nothing  to  do." 

The  fact  in  this  case  is  the  fact  that  the 
telegram  received  by  plaintiff  on  the  16th 
of  July  was  a  false  telegram  and  did  not 
come  from  his  Rangoon  branch.  Plaintiff 
was  asked,  "for  what  purpose  did  you  pay 
the  money  m  ;"  and  his  answer  was,  "I  paid 
the  money  in  because  on  the  16th  I  received 

(3)  (1882V12L.J.  C  P.  30;  13  0.  B.  (N.  e.)  125;  9 
Jur.  (N.  s.)  626;  11  W,  K.  235;  7  Li,  T.  856,  134  K.  R. 
479;  143  E.  R,  50. 


a  telegram  saying,  'Rupees  bought  by  Gee 
Seng  OhanY'  Again  he  was  asked,  "When 
you  paid  the  money  into  the  Mercantile 
Bank,  did  you  give  any  instructions  ?M 
And  he  replied,  "No,  because  1  paid  it  in, 
in  accordance  with  the  instructions  I  receiv- 
ed by  telegram."  It  is  no  doubt  true  that 
believing  that  this  telegram  came  from 
his  Rangoon  branch  he  paid  in  the  money 
believing  that  the  equivalent  in  rupees 
would  be  paid  to  his  Rangoon  branch.  But 
the  mistake  of  fact,  on  which  he  relies,  was 
not  a  mistake  as  between  him  and  the  defend- 
ant Bank  who  received  the  money.  The 
defendant  Bank  had  nothing  whatever  to  do 
with  the  fact  that  that  telegram  was  a  false 
telegram.  The  Bank  was  merely  conduct- 
ing an  ordinary  banking  transaction  with 
a  stranger.  All  that  they  were  concerned 
with  was  that  they  should  get  the  dollars. 
They  were  told  that  plaintiff  would  pay  the 
money  in  ;  they  instructed  the  Mercantile 
Bank  to  collect  the  money  ;  the  plaintiff  did 
pay  the  money  in,  and  they  thereupon 
carried  through  an  ordinary  business  trans- 
action. Under  these  circumstances,  the 
rule  laid  down  in  Kelly  v.  Solari  (1)  does 
not  apply.  The  money  was  not  had  and 
received  to  the  plaintiffs'  use  and,  in  our 
opinion,  the  decision  of  the  Court  below 
was  wrong,  and  must  be  reversed.  The 
appeal  will  be  accepted  and  the  plaintiffs' 
suit  dismissed  with  ^osts  in  both  Courts. 
2.  K.  Appeal  accepted. 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  FIRST  CIVIL  APPEAL 
No.  1037  OF  1925. 
October  29,  192->. 
Present:— Mr.  Justice  Addison. 
THE  FIRM  JAI  SINGH-D1YAL  SINGH 
THROUGH  DIYAL  SINGH  AND  THE  FIRM 
JWALA  DAS-ASA  NAND  THKOUGH 
JAWALA  DASS— CREDITORS— 
APPELLANTS 

versus 

NARMAL  DAS,  DEBTOR-INSOLVENT;  THS 

FIKM  RAM  LAL-CHAMAN  DAS  THROUGH 

RAM  LAL,  CREDITOR  AND  RAM  LAL 

KHANNA — RECMIVBR — RESPONDENTS 

Provincial  Insolvency  Act  (V  of  1920),  ss,  j>l,    1>3,  75 

— Adjudication-— Period  for  applying  for  discharge  not 

specified —Subsequent  addition  without  notice,  to  parties, 

whether  operative—Failure    to  apply  for  discharge--^ 

Annulment     of   adjudication — Appeal    by    creditorst 

whether  maintainable— Persons  aggrieved. 


Where  a  person  is  adjudicated  an  insolvent  at  the 
instance  of  his  creditors,  and  the  order  of  adjudication 
is  subsequently  annulled  under  H.  43  of  the  Provincial 
Insolvency  Act,  the  creditors  are  the  aggrieved  parties 
and  an  appeal  against  the  order  annulling  the 
adjudication  is  maintainable  at  the  instance  of  the 
creditors  [p.  236,  col  2  j 

Where  an  order  of  adjudication  did  not  fix  a 
period  within  which  the  insolvent  was  to  apply  for  his 
discharge  but  an  addition  was  subsequently  made  to 
the  order  behind  the  back  of  the  parties  fixing  such 
period 

Held,  (1)  that  the  subsequent  addition  could  not  be 
treated  as  a  part  of  the  order  of  adjudication  and  was, 
therefore,  inoperative,  [ibid  ] 

(2)  that  no  time  having  been  fixed  in  the  order  of 
•i  -idic!:1'  ••  within  which  the  insolvent  was  to  apply 
for  his  discharge,  s.  43  of  the  Provincial  Insolvency 
Act  had  no  application  to  the  case,  and  the  order  of 
adjudication  could  not,  therefore,  be  annulled  for 
failure  of  the  insolvent  to  apply  for  his  discharge 
within  the  period  specified  in  the  subsequent  addition 
to  the  order  of  adjudication,  [ibid.] 

A  wrong  order  becomes  final  unless  set  aside  in 
accordance  with  law  [p  237,  col.  1  ] 

Miscellaneous  first  appeal  from  an  order 
of  the  District  Judge,  J  hang,  at  Sargoda, 
dated  the  23rd  February  1925. 

Dr.  Nand  Lai,  for  the  Appellants. 

Lala  Ram  Chand  Manchanda,  for  the 
Respondents. 

JUDGMENT.— Certain  creditors  ap- 
plied to  have  Narmal  Das  adjudicated  an 
insolvent  and  this  was  done  by  the  District 
Judge  of  Jhang  on  8th  January  1923.  At 
the  foot  of  the  order  on  the  English  record 
there  is  an  addition  signed  by  the  District 
Judge  but  not  dated  to  the  effect  that 
Narmal  Das  should  apply  within  two  years 
for  his  discharge.  I  have  consulted  the 
vernacular  record,  however,  and  it  is  only  a 
translation  of  the  order  proper  and  not 
of  the  undated  addition.  Proceedings  went 
on  before  the  District  Judge  and  certain 
objections  were  urged  before  him.  In  the 
middle  of  these  objections  without  notice  to 
any  one  on  the  subject  the  District  Judge  who 
had  succeeded  the  first  District  Judge 
noticed  that  the  two  years  had  expired  in 
January  1925  and  he  therefore,  passed  an 
order  annulling  the  adjudication  as  Narrnal 
Das  had  not  applied  for  his  discharge  with- 
in two  years.  This  order  is  dated  the  23rd 
February  1925,  and  it  was  further  ordered 
that  the  Receiver  should  distribute  the 
money  in  his  hands  amongst  those  credit- 
ors who  had  proved  their  debts  and  re- 
turn the  xest  of  the  insolvent's  property 
to  him.  Against  this  order  two  creditors 
have  appealed. 

A  preliminary  objection  was  taken  that  no 
appeal  lay  at  the  instance  of  the  creditors 
as  the  property  of  the  insolvent  had  vested 


FIRM  JAI  SINOH-DTTAL  SINGH   V.  NARMAL  DAS.  [92  I.  0.  1926J 

in  the  Receiver  and  that  he,  therefore,  was 
the  only  person  aggrieved  by  the  order 
annulling  the  adjudication  especially  as  the 
ordinary  rights  of  the  creditors  revived  by 
the  order  of  annulment.  Narmal  Das,  how- 
ever, was  adjudicated  an  insolvent  at  the 
instance  of  the  creditors  and  they  are  ob- 
viously the  aggrieved  parties.  For  this 
reason  alone  the  creditors  have  a  right  of 
appeal.  In  this  view  of  the  case  it  is  not 
necessary  to  decide  whether  a  creditor 
must  be  an  aggrieved  party  before  he  has 
the  right  of  appeal  as  to  which  different 
views  seem  to  have  been  taken,  by  this 
High  Court  and  the  Allahabad  High  Court: 
vide  Ishar  Das  v.  Ladha  Ram  (I)  and'Shikri 
Prasad  v.  Aziz  All  (*).  I  overrule  the  pre- 
liminary objection. 

In  the  appeal  it  was  argued  that  it  is  clear 
from  two  records  that  the  addendum  at  the 
foot  of  the  signed  and  dated  order  was 
not  written  at  the  time  the  order  was  made. 
It  seems  to  me  that  this  view  must  prevail. 
It  is  true  that  it  is  laid  down  in  s.  114  of  the 
Evidence  Act  that  the  Court  may  "presume 
that  judicial  and  official  acts  have  been  regu- 
larly performed,  but  it  is  clear  from  a  com- 
parison of  the  two  records  that  the  adden- 
dum was  not  written  when  the  order  of 
adjudication  was  made.  It  is  not  clear  when 
it  was  added.  This  may  have  been  the 
next  day  or  a  week  later  or  at  any  other 
subsequent  time.  But  in  any  case  it  cannot 
be  held  to  be  a  part  of  the  order  as  no  pro- 
per steps  were  ever  taken  by  the  Judge  to 
review  it  after  notice  to  the  parties.  It  fol- 
lows that  this  addendum  cannot  be  con- 
sidered and  that  no  time  was  stated  in 
the  order  within  which  the  insolvent  had 
to  apply  for  his  dischaige  although  such 
time  should  have  been  stated. 

As  no  such  time  was  stated  the  order 
under  appeal  cannot  be  sustained.  Of  course, 
it  would  still  be  possible  for  the  debtor  to  ap- 
ply for  his  discharge  under  s.  41  of  the  Act 
which  provides  that  he  jnay  apply  at  any 
time  after  the  order  of  adjudication  and 
shall  apply  within  the  period  specified  by 
the  Court.  Further,  as  he  was  never  direct- 
ed by  the  order  to  aj>ply  within  two  years 
s.  43  of  the  Act  does  not  apply  and  the  ad- 
judication cannot  be  annulled  for  the  reason 
given. 

It  was  contended  on  behalf  of  the  res- 
pondent insolvent  that  as  la  time  was  not 


(l)62Ind   Cas.  $24. 

(2)  63  Jnd.  Cas.  601;     19   A.    L.  J.  8G2;  3  U.  1M.,  R, 
(A.)  195;  44  A,  71;  (1922)  A,  I.  R.  (A.)  W, 


BALDEO  SINGH  *v.  GITLA& 


[92  I.  0. 

fixed  within  which  he  was  to  apply  for  his 
discharge  as  ordered  by  s.  27  of  the  Act  the 
order  was  defective,  and  it  must  be  held 
that  he  was  not  adjudicated  an  insolvent  in 
accordance  with  law.  This  consequence, 
however,  does  not  follow.  A  wrong  order 
when  passed  becomes  final  unless  set  aside 
in  accordance  with  law. 

No  other  point  was  argued  before  me.  For 
the  reasons  given  I  accept  the  appeal  and  set 
aside  the  order  of  the  District  Judge  under 
appeal.  He  Is  directed  to  proceed  with  the 
insolvency  proceedings  according  to  law. 
There  will  be  no  costs  of  this  appeal  as  the 
insolvent  does  not  seem  to  be  to  blame  for 
what  has  happened. 

z.  K.  Appeal  accepted. 


237 


OUDH  CHIEF  COURT. 

FIRST  CIVIL  APPEAL  No,  67  OP  1924. 

December  4,  1925. 
Present: — Mr.  Justice  Hasan  aftid 

Mr.  Justice  Raza. 
BALDEO  SINGH  AND  OTHERS- 
PLAINTIFFS— APPELLANTS 

versus 

Musammat  GULAB  AND  OTHERS — 
DEFBM  DANTS— RESPON  DBNTS. 

Will,  execution  of — Undue  influence. —  Burden  of 
proof — Surrounding  circumstances— Pardaiiashm  lady 
—  Probabilities  of  case 

If  a  person  impugns  a  Will  on  the  ground  that  it 
was  obtained  b}^  the  exercise  of  undue  influence, 
excessive  persuasion  or  moral  coercion,  it  lies  upon 
him  to  establish  it.  [p.  238,  cul.  2,J 

A  man  may  act  foolishly  and  even  heartlessly  if 
he  acts  with  full  comprehension  of  what  he  is  doing, 
the  Court  will  not  interfeie  with  the  exercise  of 
his  volition.  In  such  cases  the  decision  of  the  Couit 
must  rest  not  upon  suspicion,  but  upon  legal  groundb, 
established  by  legal  testimony.  [ibid.\ 

Sreemanchunder  Dey  v.  Gopaul  Chunder  Chucker- 
butty,  11  M  I  A.  28  at  p.  44;  7  W  R.  P.  C.  10;  1  Sutk. 
P.  0.  J.  651,  2  Sar.  P.  0.  J.  215,  20  E.  R.  11,  referred  to. 

A  Will  executed  by  a  pardanashm  lady  in  plain 
language,  in  lieu  of  services  rendered  by  devisee,  and 
otherwise  natural  and  consistent  with  the  probabilities 
of  the  case,  must  be  upheld,  [  p  240,  col  1  ] 

Appeal  .:'•:-'  '.  decree  of  the  Subordi- 
nate Judg-.  >•  :  .'  dated  the  3rd  July 
1924, 

Messrs.  Hyder  Husain  and  Kanhaiya  Lai, 
for  the  Appellants. 

Messrs.  A.  P.  Sen,  H.  K.  Ghosh,  C.  N. 
Ilarkauli  and  Sidh  Prasad,  for  Respondent 
No.  1. 

JUDGMENT.— This  is  the  plaintiffs1 
appeal  from  the  decree  of  the  Subordinate 
Judge  of  $itapur  dated  the  3rd  July  1924. 


The  suit  out  of  which  this  appeal  arises 
and  which  has  been  dismissed  by  the 
Court  below  relates  to  certain  zevrinddi  i 
shares  in  villages  mentioned  in  list  B  attach- 
ed to  the  plaint.  The  plaintiffs  claim  the 
recovery  of  possession  of  2/11  share  in 
that  property.  This  property  originally 
belonged  to  one  Ganga  Bakhsh  Singh. 
Ganga  Bakhsh  Sindh  died  childless  and 
on  his  death  the  estate  devolved  on  his 
widow,  Musammat  Bindra,  who  entered 
into  the  possession  of  the  estate  after  hav- 
ing obtained  mutation  of  names  in  place 
of  her  husband  from  the  Revenue  Courts. 
Musammat  Bindra  died,  as  is  proved  by 
the  evidence  in  the  record,  on  or  about  the 
30th  of  March  1917.  The  plaintiffs1  case  is 
that  on  her  death  the  reversion  opened  to 
one  Mannu  Singh,  now  deceased,  husband 
of  Musammat  Ram  Kunwar,  plaintiff  No.  4 
and  on  Sumer  Singh,  plaintiff  No.  3,  to 
the  extent  of  2/llth  share  in  that  estate. 
Munnu  Singh  executed  a  deed  of  gift  in 
respect  of  half  of  his  1/llth  share  on  the 
22nd  November  1921  in  favour  of  Baldeo 
Singh  son  of  Bahadur  Singh  plaintiff  No.  1 
.and  Sumer  Singh  executed  another  deed 
of  gift  on  the  4th  of  March  1921  in  favour 
of  Baldeo  Singh  son  of  Kunwar  Singh, 
plaintiff  No.  2  in  respect  of  one-half  of  his 
1/llth  share.  The  chief  contesting  defend- 
ant to  the  suit  is  Musammat  Gulaba,  now 
respondent  in  this  appeal.  The  case  set 
forth  in  the  plaint  was  that  Musammat 
Gulaba  was  in  unlawful  possession  of  the 
estate  in  suit.  The  title  to  that  estate  was 
claimed  by  the  plaintiffs  under  the  rules 
of  inheritance  of  the  Law  of  Mitakshara. 

The  defence  to  this  suit  was  that  Musam- 
mat Bindra  entered  into  the  possession  of 
her  husband's  estate  not  as  a  Hindu  widovv 
with  limited  interest  but  under  a  custom 
governing  the  succession  to  the  estate  of 
Ganga  Bakhsh  Singh  and  under  that 
custom  she  had  absolute  proprietary  rights 
in  the  inheritance  which  devolved  upon 
her  from  her  husband  Ganga  Bakhsh,  that 
in  the  exercise  of  her  proprietary  powers 
Musammat  Bindra  made  a  Will  in  favour 
of  Musammat  Guiaba  on  the  25th  of  Feb- 
ruary 1917  in  respect  of  the  entire  estate 
which  had  devolved  on  Musammat  Bindra 
by  right  of  succession  from  her  husband 
and  that  by  the  terms  of  that  Will  Musam- 
mat Gulaba  acquired  absolute  proprietary 
interest  in  the  property  in  suit. 

The    Trial  Court    has   found    that  the 
custom  under    which    Musammat 


238 


BALDEO  SINGH  V.  GULAB. 


[92  I.  0. 1926] 


acquired  full  proprietary  rights  in  the  estate 
of  her  husband  was  proved.  It  has  also 
found  that  the  Will  of  the  25th  of  February 
1917  said  to  have  been  executed  by  Musam- 
mat  Bindra  in  favour  of  Musammat  Gulaba 
was  also  proved. 

In  the  memorandum  of  appeal  filed  in 
this  Court  both  these  findings  of  the  Trial 
Court  were  impugned.  At  the  hearing  of 
the  appeal,  however,  the  learned  Counsel 
for  the  appellants  expressly  accepted  the 
correctness  of  the  finding  as  to  the  custom. 
The  arguments  were  consequently  limited 
to  the  question  of  the  genuineness  and 
validity  of  the  Will  of  the  25th  February 
1917. 

The  attack  on  the  Will  was  made  on  the 
following  lines.  Musammat  Bindra  was  a 
pardanashin  lady  of  an  advanced  age  of 
70  or  75  years.  There  was  no  motive  for 
a  Will  of  the  nature  now  propounded  by 
the  defendant ;  the  Will  has  the  effect  of 
ignoring  the  claims  of  natural  heirs  both 
of  her  own  estate  and  of  the  estate  of  her 
husband.  The  testator  was  surrounded  by 
Musammat  Gulaba,  her  daughters  and  her 
son-in-law  Pirthipal  Singh.  No  relations 
either  of  Musammat  Bindra  or  of  her  hus- 
band Ganga  Bakhsh  Singh  were  consulted 
in  the  matter  of  the  Will.  The  attesting 
witnesses  and  the  scribe  were  all  .strangers; 
Musammat  Bindra  had  been  ill  and  was 
about  the  time  of  the  execution  of  the  pro- 
pounded Will  attacked  with  paralysis 
which  had  made  her  speechless  and  more 
or  less  devoid  of  her  senses. 

These  lines  of  attack  we  .have  carefully 
examined  with  reference  to  the  evidence  on 
the  record  and  find  that  each  one  of 
them  is  amply  and  conclusively  replied  by 
the  merits  of  the  case.  All  along  the 
firi^ir  <•!;:.-  addressed  to  us  on  the  side  of 
the  appellants  we  could  never  reach  to  a 
certainty  as  to  whether  the  arguments 
were  intended  to  attack  the  genuineness  of 
the  Will  of  the  25th  February  1917  or  whe- 
ther they  were  intended  to  establish  the 
case  that  the  Will  was  the  result  of  the  exer- 
cise of  undue  influence  on  the  part  of  the 
attesting  witnesses,  Pirthipal  Singh, 
Musammat  Gulaba  and  other  persons  sur- 
rounding the  testator  Musammat  Bindra. 
In  this  estate  of  the  arguments  we  think 
it  advisable  to  deal  with  this  matter  in 
both  aspects. 

The  law  on  the  subject  is  perfectly  clear. 
In  delivering  the  judgment  of  their  Lord- 
efyips  of  the  Privy  Council  in  the  case  of 


Motibai  Hormusjee  Kancja  v.  Jamsetjee  Hor* 
musjee  Kanga  (1)  Mr.  Ameer  Ali  made  the 
following  observations  :—"  In  this  connec- 
tion it  may  be  useful  to  refer  to  the  ob- 
servations of  Lord  Westbury  in  the  case  of 
Sreemanchunder  Dey  v.  Gopaulchvnder 
Chuckerbutty  (2)  *  in  matters  of  this  descrip- 
tion '  (he  was  dealing  with  a  charge  of 
fraud  in  connection  with  a  sale  in  execu- 
tion of  a  decree)  'it  is  essential  to  take  care 
that  the  decision  of  the  Court  rests  not 
upon  suspicion,  but  upon  legal  grounds, 
established  by  legal  *  testimony.1  It  is  quite 
clear  that  the  onus  of  establishing  capa- 
city lay  on  the  petitioner.  It  is  also 
clear  that  if  the  caveator  impugned  the 
Will  on  the  ground  that  it  was  obtained  by 
the  exercise  of  undue *influence,  excessive 
persuasion  or  moral  coercion,  it  lay  upon 

him   to    establish    that A  man    may 

act  foolishly  and  even  heartlessly;  if  he 
acts  with  full  comprehension  of  what  he  is 
doing,  the  Court  will  not  interfere  with  the 
exercise,  of  his  volition. " 

The  Will  in  question  was  written  by  Ram 
Dayal.  He  has  given  evidence  in  the  case 
and  deposes  to  circumstances  in  which  he 
came  to  write  this  particular  Will.  Rain 
Dayal  was  admittedly  in  the  service  of 
Pirthipal  Singh  since  the  year  1916.  This 
Pirthipal  Singh,  as  we  have  already  said, 
is  one  of  the  sons-in-law  of  Musammat 
Gulaba.  It  seems  to  us  to  be  perfectly 
natural  and  consistent  with  the  probabili- 
ties of  the  case  that  Ram  Dayal  should  be 
at  the  house  of  Musammat  Bindra  where 
Pirthipal  Singh  himself  was  staying  at 
the  time  when  the  Will  was  executed.  Ram 
Dayal's  testimony  is  that  he  wrote  out  this 
Will  at  the  desire  of  Musammat  Bindra  and 
that  Musammat  Bindra  affixed  her  thumb 
mark  on  the  Will.  The  next  witness  in  sup- 
port of  the  execution  of  the  Will  of  the  25th 
of  February  1917  is  Thakur  Madho  Singh. 
He  has  attested  the  Will  in  question  and 
his  evidence  is  that  he  was  sent  for  from 
his  house  by  Musammat  Bindra,  Madho 
Singh  is  a  gentleman  of  position  and  res- 
pectability. Ganga  Bakhsh  Singh  was  his 
maternal  uncle.  During  his  childhood  he 
lived  for  the  most  part  of  the  time  at  Ganga 
Bakhsh's  house.  He  swears  to  his  own 

(1)  80  Ind.  Cas.  777;  22  A.  L.  J.  98;  (1924)  A.  I.  R. 
(P.  C.)  28,  (1924)  M  W.  N.  173;  34  M.  L.  T.  4;  19  L.  W. 
437;  26  Bom.  L.  R.  579;  29  C.  W.  N.  45;  L.  R.  5  A 
(P.  C.)  165  (P.  0.). 

(2)  11  M.  L  A.  28  at  p.  44;  7  W.  R.  P.  0.  10;  1  Suth, 
P,  0,  J,  651;  2  Bar.  P,  Q,  Jf  215;  20  E,  R,  U, 


[92  I.  0.  1923J 


BALDEO  SINGtt  V.  OTJLAB. 


239 


signature  as  an  attesting  witness  and  also 
to  the  thumb  mark  made  by  the  testator 
Musammat  Bindra  on  the  Will  in  question, 
The^  next  witness  is  Thakur  Sardar  Singh. 
He  is  also  a  relation.  He  says  that  the 
daughter  of  ^the  brother  of  the  widow  of 
n  '.:..:>  B  '.hsh  was  married  to  his  brother 
I ).  '  v  .!  He  was  sent  for  by  the  Thaku- 
rain,  that  is  Musammat  Bindra.  He  saw 
the  execution  of  the  Will  and  in  token  of 
it  he  attested  it.  He  also  swears  to  the 
thumb  impression  on  the  Will  as  that  of 
Musammat  Bindra.  Then  comes  Thakur 
Ratan  Singh.  He  also  gives  evidence  in 
support  of  the  Will.  He  is  also  an  attest- 
ing witness  to  it,  is  a  zemindar  paying 
Rs,  600  revenue  and  is  a  relation  of  the 
family  of  Ganga  Bakhsh  Singh,  Ganga 
Bakhsh  Singh's  grandfather  was  Mardan 
Singh  and  Mardan  Singh's  •;  :  ,/  •  -  was 
married  to  the  grandfather  oi  Raiati  mngh, 
the  witness.  He  was  also  sent  for  by  Musam* 
mat  Bindra  and  at  her  desire  attested  the 
Will  and  swears  also  to  the  thumb  mark  of 
Musammat  Bindra.  Finally  we  have  the  evi- 
dence of  one  Veshunu  Dass  Mahant  of 
Husainpur  who  was  <":<'(  ing n-  a  pujari  at  the 
thakurdwara  founded  by  Ganga  Bakhsh 
Singh.  He  was  also  sent  for  by  the  lady,  saw 
the  execution  of  the  Will  and  affixed  his  own 
signature  to  it  as  an  attesting  witness.  He 
also  saw  the  Thakurain  making  her  thumb 
impression  of  this  Will.  These  witnesses, 
one  and  all,  fully,  in  our  judgment,  prove 
the  execution  of  the  Will  propounded  by 
the  defendant  by  Musammat  Gulaba.  There 
can,  therefore,  be  no  doubt  that  the  docu- 
ment before  us  is  the  Will  which  Musam- 
mat Bindra  executed. 

We  fully  realise  the  importance  of  the 
fact  that  Musammat  Bindra  was  a  parda- 
nashin  lady.  We  also  realise  that  she  was 
a  woman  of  advanced  age.  We  think, 
therefore,  in  view  of  these  circumstances, 
our  duty  is  to  see  that  the  physical  act  of 
the  execution  of  this  Will  by  Musammat 
Bindra  accompanied  her  mind  and  desire 
in  the  matter.  The  testimony  of  the  wit- 
nesses to  which  we  have  referred  in  the 
preceding  paragraph  of  this  judgment  is 
positive  on  the  fact  that  the  Thakurain  was 
'qiiite  alright*  whan  the  Will  was  executed 
and  she  was  in  possession  of  her  senses. 
Every  one  of  these  witnesses  says  that  the 
desire  to  execute  the  Will  in  question  arose 
with  the  Thakurain  herself  and  she  com- 
municated  her  desire  in  the  presence  of 
the  witnesses  to  Ram  Dayal  with  a  request 


that  he  might  prepare  a  Will  of  the  nature 
she  wanted.  Ram  Dayal  accordingly  made 
a  draft.  This  draft  after  having  been 
prepared  was  read  out  to  the  lady  and 
the  witnesses  unanimously  emphasise  the 
fact  that  it  was  also  explained  to  her.  The 
evidence  does  not  stop  here.  A  fair  copy 
was  then  made  and  this  copy,  which  is 
the  original  Ex.  A-l  before  us,  was  again 
read  and  explained  to  the  lady  and  that  in 
token  of  her  consent  she  said  it  was  'quite 
alright '  To  use  the  language  of  Mr.  Ameer 
Ali  in  the  case  already  referred  to 

"  it  is  to  be  remarked  that  the  Will 
itself  is  simple  and  short,  and  not  re- 
quiring any  great  mental  strain  on 
the  part  of  a  sick  man  to  grasp  its 
meaning  "  We  should  not  be  understood 
to  mean  that  Musammat  Bindra  was  sick 
in  any  sense  of  the  word  at  the  time  of  the 
execution  of  this  Will,  To  the  question  of 
her  alleged  illness  we  will  address  ourselves 
later.  The  Will  before  us  recites  the  motive 
for  the  making  of  it  and  then  gives  all 
the  property  of  the  teatator  to  the  devisee 
Musammat  Gulaba.  There  is  no  more  in 
this  Will.  The  words  used  are  of  the  sim- 
plest nature.  The  idea  is  most  rudimentary. 
Taking  into  consideration,  therefore,  the 
simple  nature  of  the  Will,  the  evidence  as 
to  the  fact  that  the  lady  was  in  the  posses- 
sion of  her  mental  faculties,  that  she  was 
"quite  alright. n  that  the  draft  and  the  fair 
copy  were  both  read  and  explained  to  the 
lady  and  that  the  Will  before  us  expresses 
her  testamentary  intentions  we  have  no 
hesitation  in  holding  that  the  lady  execut- 
ed the  document  in  question  intelligently 
and  with  a  complete  comprehension  of  its 
contents  and  effects. 

There  is  no  evidence  on  the  side  ol  those 
who  impeach  this  Will  as  to  the  exercise  of 
any  undue  influence  by  anybody  in  the 
matter  of  the  execution  of  this  Will,  In  the 
course  of  ti  e  arguments  reliance  was  placed 
on  some  of  the  circumstances  to  which  we 
have  made  reference  at  the  outset  of  this 
judgment  in  support  of  the  case  of  undue 
influence.  .Now  what  are  the  facts?  Musam- 
mat Gulaba  is  the  widow  of  Thakur  Sheo 
Singh.  Thakur  Sheo  Singh  was  the  younger 
brother  of  Thakur  Ganga  Bakhsh  Singh.  The 
testimony  of  the  witnesses  to  which  we  have 
referred  already  is  clear,  reliable  and  unani- 
mous OTI  the  point  that  Musammat  Bindra 
and  Musammat  Gulaba  lived  all  along 
jointly  and  were  on  good  termg  with  each 
other,  Musammat  Gulaba  was  about  12  years 


240 


BALDtfO  SINGH  V. 


i.  o. 


younger  than  Musammat  Bindra.  The  former 
served  the  latter  in  her  widowhood  gave  her 
comfort  and  above  all  gave  her  the  joy  of 
companionship.  Ganga  Bakhsh  Singh  as 
we  know  had  no  child  at  all.  Sheo  Singh 
had  four  daughters.  These  daughters  grew 
up  in  the  house  and  must  naturally  have 
been  the  object  of  love  and  affection  to  the 
old  lady  Musammat  Bindra.  Indeed  the 
motive  impelling  the  execution  of  the  Will 
in  question  is  set  forth  in  clear,  simple  and 
rTr-:;  i\  \ti\\ ^  .,»jti  in  the  Will  itself  and  that 
•-'•  s;  iir-  \\  ,.i  v. as  being  made  in  recogni- 
tion of  the  long  services  which  Musammat 
Gulaba  had  rendered  to  the  testator  Mu- 
sammat Bindra.  The  other  side  of  the 
picture  is,  ,i  wrli  '•*:  to  the  same  evidence, 
that  Musammat  Bindra  was  not  on  good 
terms  with  the  collaterals  of  her  husband. 
Indeed  the  evidence  leaves  no  room  for 
doubt  on  the  question  that  there  was  never 
love  lost  between  Musammat  Bindra  and 
the  collaterals  of  her  husband.  There  were 
occasions  when  points  of  actual  quarrel 
were  reached  but  apart  from  that  the  entire 
body  of  these  collaterals,  which  were  large 
in  number,  stood  on  the  footing  of  absolute 
strangers  to  the  lady.  In  this  state  of  things 
it  was  but  natural  that  Musammat  Bindra 
should  desire  to  leave  her  property  to  one 
who  was  nearest  and  dearest  to  her.  The 
Will  is,  therefore,  in  our  judgment  wholly 
natural  The  defendants' case  that  the  idea 
of  making  the  Will  of  the  nature  which  the 
Thakuraiii  eventually  made  originated  with 
the  Thakurain  herself  is  supported  by  the 
defendants1  witness  Thakur  Anrudh  Singh,  a 
man  of  a  very  respectable  position.  We  desire 
to  quote  a  portion  of  his  evidence.  <ll  went 
many  times  to  the  widow  of  Thakur  Ganga 
Bakhsh  Singh  and  the  widow  of  Sheo  Singh. 
They  used  to  treat  me  with  great  considera- 
tion. The  two  women  used  to  live  in  one 
house.  They  had  their  business  and  mess 

joint.    They  were  on  very  cordial  terms 

When  I  had  advised  her  not  to  make  the 
endowment  and  to  let  the  property  go  to 
the  reversioners  she  had  told  that  she  would 
not  let  them  take  the  property  but  she 
would  make  the  transfer  to  her  deorani" 
By  the  expression  deorani  was  admittedly 
meant  the  widow  of  Sheo  Singh,  that  is, 
Musammat  Gulaba.  This  intention  on  the 
part  of  Musammat  Bindra  came  into  birth 
so  long  ago  as  15  or  16  years  preceding  the 
date  otthe  evidence  of  Thakur  Anrudh 
Singh.  A  very  commonly  prevailing  super- 
stition intervened  aad  the  intention  came 


to  be  embodied  in  the  document  before  us 
long  after. 

The  evidence  as  to  the  Thakurain's  illness 
produced  on  the  side  of  the  propounders  of 
the  Will  is,  in  our  judgment,  equally  clear 
and  reliable.  Indeed  it  is  supported  in 
a  measure  by  the  evidence  produced  on 
the  side  of  the  appellants.  Besides  the  evi- 
dence of  the  attesting  witnesses  and  the 
scribe,  Anant  Ram  states  that  he  practised 
as  a  physician  and  that  about  six  years  ago 
he  treated  the  Thakurain  and  Ganga  Bakhsh 
Singh.  She  had  fever  for  three  days  and 
then  she  was  attacked  by  paralysis.  She 
died  four  days  after  the  attack.  Before 
the  attack  of  paralysis  she  was  in  her 
perfect  senses.  The  attack  of  paralysis  came 
on  while  she  was  in  fever.  The  appellants' 
witness  Badri  admits  in  his  cross-examina- 
tion that  Musammat  Bindra  was  treated 
by  Anant  Ram  amongst  others.  To  the  same 
effect  is  the  evidence  of  the  plaintiffs1  witness 
Sardar  Singh.  He  said  in  cross-examination 
that  Anant  Ram  Vaidya  had  seen  the  lady 
twice  when  she  was  ill.  It  is  quite  clear, 
therefore,  that  the  lady  had  an  attack  of 
paralysis  only  three  or  four  days  before  her 
death.  The  Will  as%ve  have  found  was  execut- 
ed on  the  25th  of  February  IUi7  and  accord- 
ing to  the  evidence  of  defendants1  witness 
Ram  Dayal,  Musammat  Bindra  lived  for  a 
month  or  one  and  a  half  month  after  the  exe- 
cution of  the  Will  and  she  wasin  good  health 
up  till  three  or  seven  days  before  her  death. 
A  some  what  clear  idea  is  obtained  of  the 
precise  period  of  Musammat  Bindra's  death 
irom  the  evidence  of  Sardar  Singh,  D.  W.  No. 
5.  He  says  that  he  saw  Musammat  Bindra  on 
theday  following  the  attack  of  paralysis  and 
it  was  the  sixth  or  seventh  day  of  the  latter 
part  of  the  month  of  Chait.  She  died  the 
third  day  of  the  attack  of  paralysis  and  on 
the  morning  following  the  last  visit  of  the 
witness  to  her.  According  to  this  evidence 
Musammat  Bindra  died  on  or  about  the 
30th  of  March  1917.  The  result  is  that  in 
agreement  with  the  findings  of  the  Court 
below  we  hold  that  the  Will  of  the  25th 
February  1917  was  executed  by  Musammat 
Bindra  intelligently  and  with  a  sound  die- 
posing  mind. 

The  appeal,  therefore,  fails  and  is  dismiss- 
ed with  costs. 

N.  H.  Appeal  dismissed. 


[9^1.  0.  1926J  SADASltEO* 

LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1047  OP  1925. 

July  24,  1925. 

Present: — Mr.  Justice  Martineau. 
ASA  NAND— PLAINTIFF — APPELLANT 

versus 

MAHMUD  AND  OTHERS—  DEFENDANTS 
— RESPONDENTS, 

Punjab  Pre-emption  Act  (I  of  1913),  $.  16  (fourthly) 
— Common  entrance  from  street— Permissive  user  of 
compound,  whether  entrance-  -Practice  and  pleadings— 
Appeal— Case,  whether  can  be  decided  on  plea  not 
raised  in  pleadings. 

Plaintiff  sued  for  possession  of  a  house  by  right  of 
provs.pii'  '!  •  M  ihe  ground  that  his  house  adjoined 
lh:  !:'i!-o  !i  -:ii:  and  had  a  common  entrance  with  it 
from  the  street.  The  vendee  -whose  house  was  also 
contiguous  to  the  house  in  suit,  denied  that  the  plaint- 
iff had  a  superior  right  and  pleaded  that  he  had  a 
right  of  way  through  the  compound  of  the  house  in  suit. 
It  was  found  that  the  vendee  was  not  a  joint  owner 
of  the  compound  in  which  the  plaintiff's  house  and  the 
house  in  suit  were  situated,  and  that  he  had  no  right 
of  way  over  the  compound  as  his  use  of  it  had  only 
been  permissive.  The  lower  Appellate  Court,  howevei, 
dismissed  the  plaintiff's  suit  on  the  ground  that  the 
defendant's  house  as  well  as  the  plaintiff  s  had  a  com- 
moa  entrance  with  the  house  in  suit  from  the  street 
and  thatr  therefore,  thejr  had  equal  rights  of  pre- 
emption 

Held,  (1)  that  the  lower  Appellate  Court  was  wrong 
in  dismissing  the  plaintiff's  suit  on  a  ground  which 
had  not  been  raised  by  the  defendant  in  his  pleadings, 

(2)  that,  in  any  case,  on  the  findings  rt  could  not  be 
said    that    the    defendant's   house   had    an    entrance 
through  the  compound  in  which  the  plaintiff's    house 
and  the  house  in  bilit  were  situated  ; 

(3)  that,  therefore,  the  plaintiff's  suit  must    succeed. 
Second  appeal  from  a  decree  of  the  Dis- 

1  r;,:!  -T  ,  : K-  I>:  :  Ghazi  Khan,  dated  the  26th 
iluirii&rv  L'JiV),  reversing  that  of  the  Sub- 
ordinate Judge,  Fourth  Class,  Dera  Ghazi 
Khan,  <}ated  the  7th  December  1924. 

Mr.  M.  L.  Puri,  for  the  Appellant. 

Mr,  M*.  -d,  Ghani,  for  the  Respondents. 

JUDGMENT.— The  plaintiff  sued  for 
possession  of,  a  house  by  right  of  pre- 
emption ,ou  the  ground  that  his  house  ad- 
joined the  house  in  suit  and  had  a  common 
entrance  with  it  from  the  street.  The  con- 
t^sting  defendant,  whose  house  was  also 
Citiii!^  i  '  ir  i  •  the  house  in  suit,  denied  that 
the 'plaintiff  had  a  superior  right  and  plead- 
epl  that  he  had  a  right  of  way  through  the 
compound  of  the  house  in  suit. 
.  >The  Subordinate  Judge  gave  the  plaintiff 
a  decree,  finding  that  his  house  and  the 
house  in  suit  had  a  comrjion  entrance  from 
the  etaeet  and  that  the  plaintiff  ifoad,  there- 
fore, ,a  superior  daini  under  the  4th  clause 
pf  iS.nUU,  of  the  -Pre-^nptiofc  Act,  but  thfc 
pi$trfet  Judge  hap  reversed  the*  decree1  and 
the  suit,  finding  that  the  defend- 
house  aa  well  aa  the.  plaintiffs  has 

U 


241 

a  common  entraiifce  with  the  house  in 
suit  from  the  street,  and  that,  therefore, 
the  parties  have  equal  rights.  The  plaintiff 
has  filed  a  second  appeal. 

The  defendant  did  not  plead  either  in 
the  Trial  Court  or  in  his  grounds  of  appeal 
in  the  lower  Appellate  Court  that  his  house 
and  the  house  in  suit  had  a  common  en- 
trance, and  the  lower  Appellate  Court  was 
wrong  in  deciding  the  case  on  a  point 
which  had  not  been  raised.  Moreover  the 
defendant  is  not  a  joint  owner  of  the  com- 
pound in  which  the  plaintiff's  house  and 
the  house  in  suit  are,  and  the  District 
Judge  has  found  as  a  fact,  that  he  has  no 
right  of  way  over  the  compound  as  his  use 
of  it  has  been  only  permissive.  There  is, 
therefore,  no  entrance  to  the  defendant's 
house  through  that  compound. 

It  is  contended  for  the  defendant  that  the 
plaintiff's  house  and  the  house  in  suit  have 
not  got  a  common  entrance,  but  the  Trial 
Com t's  finding  on  the  point  was  not  con- 
tested in  the  lower  Appellate  Court. 

I  accept  the  appeal,  reverse  the  lower 
Appellate  Court's  decree,  and  restore  the 
decree  of  the  Trial  Court.  The  respondent 
Mahmud  will  pay  the  appellant's  costs 
throughout. 

z.  K.  Appeal  accepted. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  323  OF  1924. 

August  8,  1925. 

Present: — Mr.  Findlay,  Officiating  J.  C 
S  AD  ASHEO— PLAINTJ  FF— APPELLANT 

versus 
KARIM — DEFENDANT — RESPONDENT. 

Civil  Pra  edure  Code  (Act  V  of  1908),  s  £7,  0.  XXX II , 
?\  S — Execution  proceedings— Guardian  ad  litem— 
No/onr»i.'  r:V  «••"';:,;,  ,M,  •"•!••'  Ftnlirt  to  support 
minors  •:.;>•:  '/-N  i-».'-»i  '/  ''i,;>"it  'i*1.^  /,  ^  /.,,<., 
Application  to  release  minor  s  property  from  attachment, 
dismissal  of— Declarator^  suit  by  minor,  whether  main- 
tainable. 

k  T  he  niere  ^bsenoe  of  a  formal  order  of  the  appoint- 
ment of  a  person  00  ilu  Ku:ii-liiin  ad  litem  ot  a  minor 
is  ii6  grpuhd  for  lu-luni^  \\i-ti\  the  ixiinor  was  jiofc 
represented  at  ail  in  the  feuit.  [p.  243,  col,  1.7 

The  negligettcs  «>f  ^  gutoliah  to  support  the  case  of 
;i  •!..::  -,  :  !liv  'i!.,*  si"*-,  •  :  :i:..  >,  ng  to  shotv  that  he 
-::i.-  •:  >:.:».Mi;irl..  MI.:  11,:  ii.1.  '•  thenimor  to  av.oid 
the  operation  of  the  decree  passed  therein,  [p.  244 
col  I/]  :  .  '  *J 


242 


SADA8HEO  V.  KARlM. 


[92  I.  0.  19261 


The  mere  omission  of  a  guardian  to  appear  in  a  suit 
or  execution  proceedings  does  not  necessarily  amount 
to  gross  negligence  on  the  part  of  the  guardian, 
[p.  244,  col.  2.J 

A  suit  by  a  person  for  a  declaration  that  an  order 
dismissing  an  application  tiled  by  his  guardian  to 
release  his  share  of  the  property  attached  in  execution 
as  he  was  discharged  by  the  decree  is  null  and  void, 
because  his  guardian  was  grossly  negligent  in  protect- 
ing his  interests  m  execution  proceedings,  is  in  reality 
a  suit  to  set  aside  the  auction-sale  held  subsequent  to 
the  dismissal  of  the  application  and  is  barred  under 
s  47  of  the  0  P.  0,  [p.  245,  col.  1  ] 

Appeal  against  a  decree  of  the  Additional 
District  Judge,  Nagpur,  dated  the  23rd 
April  1924,  in  Civil  Appeal  No.  9  of  1924. 

Messrs.  M.  R.  Bobde  and  M,  D.  Khandekar, 
for  the  Appellant. 

Mr.  C.  B.  Parakh,  for  the  Respondent. 

JUDGMENT.— The  plaintiff  Sadasheo 
brought  the  connected  suit    against  the  de- 
fendant-respondent Karim  in  the    Court  of 
the  Second  Class  Subordinate  Judge  No.  2, 
Nagpur,  under  the  following  circumstances. 
The  defendant  had  sued  the  plaintiff  and 
his  brother  Balaji  in  the  Court  of  the  Small 
Causes,  Nagpur,  and  obtained  a  decree  for 
Rs.  969-1-9.    The  claim  against  the  plaintiff 
was  dismissed  on  the  ground  that  he  was 
no  party  to  the  contract  on  which  the  suit 
was  based.  In  execution  of  the  decree  Karim 
attached  a  house  and  a  shop  which  were 
the  joint  property  of  Balaji  and  the  plaintiff. 
At  this  time  the  plaintiff  was  a  minor  and 
some  four  applications  on  his  behalf  were 
presented  by  Balaji  for  release  of  the  plaint- 
iff's share  in  the  properties  attached.    The 
first  of  these  applications  was  dismissed  in 
default  on  2yth    September  1914:  cf.  Ex. 
P-4.    The  second  such  application  was  dis- 
missed   for  want  of    prosecution,  as    the 
objector  had  failed  to  pay  process- fees:   cf. 
Ex.  P-6,  dated  4th  December   1914.    The 
third     application    was     presented    after 
the  attached   property  had  been  sold  and 
purchased  by  the  defendant,  and  was  dis- 
missed as  not  lying  on  26th  February  1915: 
c/.  Ex.  P-9.      TJae  fourth  application   was 
similarly  dismissed  on  30th  July  1915:   cf. 
Exs.  P-10  and    P-12.    In  the  case  of  the 
latter    application    a  detailed    order    was 
passed,  recounting  the  previous  history  of 
the  plaintiff's  attempt  to  upset  the  sale,  and 
the  merits  of  the  case  were  considered  to 
some  extent.    Still,  a  fifth  application  was 
made  under  O.  XXI,  r.  10,  C.  P.  C.,  by  the 
plaintiffs  sister   Musammat  Saraewati  Bai 
on  his  behalf:    cf.  Ex.  P-14,  and  it    was 
dismissed  on  27th  August     1915    on    the 
ground  that  Sadasheo  could  not  CGIEQ  in 


as  a  stranger  under  the  provision  of  law 
quoted.  It  is  these  orders  which  the  present 
plaintiff  is  attempting  to  upset  in  the  pre- 
sent case.  In  para.  12  of  the  plaint  he 
asks  that  these  orders  should  b6  set  aside 
and  that  a  declaratoiy  decree  should  issue 
to  the  effect  that  they  are  null  and  void 
against  him. 

The  plaintiff's  next  attempt  to  attack  the 
sale  was  by  means  of  a  declaratory  suit 
to  the  effect  that  he  was  the  owner  of  the 
half  share  in  the  property  sold.  This  suit 
failed  both  in  the  first  Court  and  in  the 
Court  of  the  District  Judge  on  appeal.  On 
second  appeal  to  this  Court  permission  was 
given  to  him  to  withdraw  the  suit  with 
liberty  to  bring  a  fresh  one.  Prior,  how- 
ever, to  the  withdrawal,  the  plaintiff  had 
once  more  filed  an  application  in  the  Exe- 
cuting Court  under  s.  47,  C.  P.  C.,  the 
basis  therefor  being  that  he  had  attained 
majority  in  1917,  that  the  applications 
presented  on  his  behalf  were  dismissed  in 
default  or  otherwise,  and  that  the  execution 
proceedings  under  s.  47,  C.  P.  C.,  should  be 
re-opened.  This  application  also  failed  and 
the  connected  appeal  was  also  dismissed. 

The  various  pleas  raised  on  behalf  of  the 
defendant  are  sufficiently  clear  from  the 
judgments  of  the  two  lower  Courts.  The 
Subordinate  Judge  dismissed  the  plaintiff's 
suit  on  the  ground  that  the  suit  should 
have  been  filed  within  one  year  from  the 
date  of  his  attaining  majority  pn  28th 
beptember  1917,  Art.  11  of  the  First  Sche- 
dule of  the  Limitation  Act  being  consider- 
ed to  apply.  The  Subordinate  Judge  also 
held  that  on  the  merits  in  the  execution 
proceedings  the  plaintiff  would  have  had  a 
good  case  and  that  the  failure  of  the  various 
applications  was  due  to  gross  negligence 
on  the  part  of  his  brother  or  sister  who 
represented  him. 

The  Additional  District  Judge  dismissed 
the  appeal  mainly  on  the  ground  that 
limitation  was  governed  not  by  Art.  11  but 
by  Art.  12,  First  Schedule  of  the  Limitation 
Act.  The  lower  Appellate  Court  upheld 
the  findings  of  the  (Subordinate  Judge  as 
to  the  property  being  ancestral  and  it  also 
held  that  there  had  been  gross  negligence 
on  the  part  of  the  plaintiff's  guardian.  The 
Additional  District  Judge  further  held  that 
in  any  event  the  case  was  not  one  where  in 
the  exercise  of  his  judicial  discretion  he 
should  grant  a  declaratory  decree.  In  bia 
opinion  the  plaintiff  could  cot  recover 
possession  frpm  the  execution  purchase* 


1.  0. 


V.  KAfeiM. 


§43 


except  by  setting  aside  the  sale  within 
the  period  allowed  by  Art.  Is  of  the  Limita- 
tion Act,  for  which  suit  ought  to  have  been 
brought  within  a  year  from  the  date  of  the 
plaintiff  attaining  majority  Prom  tlm 
point  of  view  also  the  lower  Appellate  Court 
held  that  the  plaintiff  was  not  entitled  to 
the  relief  claimed  and  in  this  connection 
also  he  relied  on  the  decision  in  Abdul 
Karim  v.  Islamunnissa  Bibi  (1).  The 
plaintiff's  appeal  was  accordingly  dismissed 
and  he  has  now  come  up  to  this  Court  on 
second  appeal. 

It  has  been  strongly  urged  before  me  that 
the  present  suit  is  not  one  for  setting  aside 
the  execution  sale.  Reference  has  been 
made  to  the  futile  attempt  made  by  the 
plaintiff  in  1920  to  enable  the  proceedings 
under  s,  47,  C.  P.  C.,  being  reopened  afresh 
and  it  has  been  urged  that  the  real  object 
of  this  suit  was  to  have  set  aside  the  five 
orders,  already  specified,  which  were  then 
held  to  be  standing  against  the  plaintiff 
and  to  bar  his  right  to  any  relief.  As 
regards  the  application  (Ex.  P-14)  it  has 
been  urged  that  Musammat  Saraswati  Bai 
was  not  the  plaintiff's  guardian  ad  litem: 
ef.  Kisni  v.  Chulaji  Tdi  (2)  while  as 
regards  the  previous  four  applications,  in 
which  the  plaintiff  was  represented  by  his 
brother,  it  was  urged  that  Balaji  had  never 
been  appointed  as  guardian  ad  litem  form- 
ally by  the  Court.  Reliance  has  been 
placed  in  this  connection  on  the  decision  HI 
Hanuman  Prasad  v.  Muhammad  Ishaq  (3». 
The  incidents  of  that  case  were,  however, 
very  different.  Therein  it  was  held  (ef.  page 
140*  thereof)  that  the  uncle  not  only  did 
not  effectively  defend  the  interests  of  the 
plaintiff,  but  had  acted  dishonestly  and  im- 
properly in  bringing  in  his  nephew  into  a 
suit  with  which  he  had  no  concern  what- 
ever, and  had  entirely  neglected  his  duty 
towards  his  nephew.  The  mere  want  of  a 
formal  order  appointing  Balaji  as  the 
plaintiff's  guardian  ad  litem  in  the  previous 
proceedings  is  no  reason  per  se  for  holding 
that  he  was  not  represented  at  all:  ef. 
Waliwn  v.  BarimBehari  Pershad  Singh  (4). 

It  hus  been  urged,  however,  that  in  any 
event  the  findings  of  both  the  lower  Courts 
that  there  had  been  gross  negligence  on 
the  part  of  the  plaintiffs  guardian  Balaji, 

(1)  34  Ind.  Gas,  231;  38  A.  339;  14  A.  L.  J.  401. 

(2)  1  N,  L.  R.  128. 

(3)  28  A.  137;  A.  W.  N.  (1905)  229;  2  A.  L.  J,  615, 

4)  30  0.  1021;  30  I.  A.  182,  7  0.  W.  N.  774;  5  Bom. 
L.  R,  822;  8  Sar.  P,  0,  J.  512  (P.  0.).  _ 


assuming  him  to  be  such,    was  sufficient  to 
justify  the  conclusion  that  the  plaintiff  had 
not,   as  a  matter    of  fact,  been  represented 
in  the  execution  proceedings.    The  decision 
in  Ratfiid  un-Nissa  v.    Muhammad   Ismail 
Khan  (5)  is  not  peculiarly  apposite  in  this 
connection.  In  that  suit  the  minor  had  been 
represented  by     a    married    woman,    her 
sister,  who  was  not  the  natural  and  proper 
guardian.    Here  Balaji  was  the  natural  and 
proper  guardian,  whereas  in  the  case  quoted 
the    person  who    acted    as    guardian  was 
expressly  disqualified    under  law    from  so 
acting.     The  decision  of  their  Lordships  of 
the  Privy  Council  iaPartab  Singh  v.Bhabuti 
Singh  (0)  is  even  more  inapposite.    There 
it  was  found  that  the  so  called  guardian  had 
been  introduced   in   the    suit  expressly  to 
further  the  interests  of  the  respondent  and 
very  naturally,  therefore,  their  Lordships 
were  forced   to  the  conclusion  that    there 
had  been  no  proper  representation  of  the 
appellants.     The    decision    in    Pasumarti 
Payidanna  v.    Ganti    Lakshminarasamma 

(7)  is  also  of  no  help  whatever  in  the  pre- 
sent case.    In  that  suit  the  minor  had  been 
impleaded  as  a    major    and    this  fact  was 
known  at  least  to  the  two  other  defendants. 
It  obviously    followed,  therefore,    that  the 
minor  had  to  be  held  to  have  been  wholly 
unrepresented  in  the  suit  in  question.  Even, 
therefore,   assuming  that  there  had    been 
gross  negligence  on  the  part  of  Balaji  in 
the  representation  of  the  minor,  it  seems  to 
me  utterly  impossible  to  predicate   that  the 
plaintiff  was  not  represented  at  all  in  the 
execution  proceedings. 

The  various  decisions  quoted  are  really 
based  on  the  fact  that  therein  there  was  no 
representation  of  the  minor.  Here  there 
was  representation,  although  there  the  re- 
presentation may  have  been  faulty  and 
indifferent.  In  Imam  Din  v.  Puran  Chand 

(8)  Scott-Smith,  JM  held  that  where  a  decree 
has  been  jnade  against  a  minor  duly  re- 
presented  by  his  guardian  aad  the  minor 
attaining  his    majority  seeks  'to    set  aside 
that    decree  by    a    separate    suit,   he    can 
only  succeed  on  proof  of  fraud  or  collusion 

(5)  3  Ind.  Cas.  864;  31  A.  572;   13  C.  W.  N.  1182;  10 
0.  L.  J.  318;  6  A.  L.  J.  822;  11  Bom.  L.  R.  1225;  6  M.L. 
T,  279,  19  M.   L.  J.  631;  36  I.  A.  168  (P.  C.). 

(6)  21  Ind.  Cas.  288;    35  A.  487;  11  C.  W.  N.  1165; 
(1913)  M.  W.  N.  785;  14  M.  L.  T.    299;  25  M.  L,  J.  492. 
11  A.  L.  J.  901;  16  O.  C.  247.  18  G.  L.  J.  384;  15  Bom: 
L.R.  1001;  40  LA.  182  (P.  C). 

(7)  29  Ind.  Cas.  314;  28  M.  J,.  J.  525;  38  M.  1076. 

(8)  55  Ind,  Cas.  833;  1  L,  27;  84  P,  L/R.  1920)  37  P4 
W.R.  1920,  ' 


244  &ADABH&)  v. 

on  the  part  of  his  guardian.  If  the  guardian 
merely  negletfted  to  support  the  case  of  the 
minor  and  there  is  nothing  to  show  that 
he  did  so  deliberately,   that    circumstance 
alone  would  not  entitle  the  minor  to  avoid 
the  operation  of  the  decree.    In  the  present 
case  there  is  not  the  slightest  reason   for  ' 
supposing  that  Balaji    deliberately  neglect- 
ed the  interests  of  the   minor,    There  may 
have  been  negligence  which    entailed,  for 
example,  one  application  being  dismissed 
in   default    and  another    being    similarly 
dealt  with  because  of  the  failure  to    pay 
Court-fees.    Moreover,  in    the  present  case 
so  far  as  the  orders,  dated  30th  July    1915 
and  27th  August  1^15,  are  concerned,  it  is 
extremely  difficult  to  see  how  there  can  be 
any  question  of  negligence.    The  connected 
applications    were    obviously    fought  out 
elaborately  on  either  side,  and  in  this    con- 
nection it  is  regrettable  that  both  the  lower 
Courts  have  been  extremely  vague  in   their 
findings  as  to  the  negligence.    There  may 
have  been  negligence  in    respect    of  the 
applications  dealt  with  in  the  orders,  dated 
29th  September  1914  and    4th  December 

1914  (Exs.  P-4and  P-6),  but  I  utterly  fail 
to  see  how  there  has  been  any  negligence 
in  respect  of  tbr^e  later  applications.   Tak- 
ing the  applications  as  a  whole  it  seems  to 
me  utterly  impossible  to  come  to  the  con- 
clusion that  the  plaintiff-appellant    was  not 
represented  in  the  proceedings  in  question. 
In  my   opinion,  therefore,    s.  47,  C.  P.  C., 
clearly  applies  in   the  circumstances  of  th^e 
case,   and    the    orders    Exs.   P-9,  P-12  and 
P-14,  dated  26th   February  1915,  30th  July 

1915  and   27th  August  1915,  clearly  bar  and 
lock  the    door  of  the  plaintiff's    chance  of 
success  in  the  present  suit.    Indeed,    from 
another  point  of  view  also  the  present  suit 
was  an  utterly  hopeless  one. 

It  has  been  quite  seriously  suggested  in 
the  course  of  arguments  on  behalf  of  the 
appellants  that  the  questions  I  am  concern- 
ed with  here  do  not  relate  to  the  execution, 
discharge  or  satisfaction  of  the  decree. 
The  decisions  in.Tallapragada  Sundarappa 
v.  Boorugapalli  Sreeramulu  (9)  and  Bihari- 
singh  v.  Newalsingh  (10)  have  been  referred 
to.  m  this  connection.  In  the  former  case 
the  questions  raised  in  the  later  suit  were 
held  to  be  such  as  could  not  have  -been 
tried  in  execution,  and  the  same  was  also 
true  of  thfc  local  case  just  quoted.  The  de- 

(9)  30  M.  402;  17  M.  L.  J.  288;  2  M.  L.  T.  360. 
^    (10)  78  Ind.  Gas.  136;  20  N.  L.  R,    24;  (1924)  A.  I.  R, 


[94  I.  Q,  192ft} 

cisions  already  quoted  in  Imam,  Din  .vv 
Puran  Chand  (8)  and  Rashid-un-Nisa  v. 
Muhammad  Ismail  Khan  (5),  can,  of  course, 
give  the  appellant  no  help  in  this  connec- 
tion in  view  of  my  finding  that  he  cannot  be 
described  as  having  been  unrepresented  m 
the  execution  proceedings.  The  decision  in 
Chunduru  Ponniyya  v.  Rajam  Viranna  (11) 
relates  to  the  question  whether  a  person 
who  has  been  impleaded  as  a  minor  defend- 
ant in  a  suit  can  institute  a  fresh  suit  to 
set  aside  the  previous  decree  on  the  ground 
of  gross  negligence,  apart  from  fraud  or 
collusion.  In  this  matter  there  is  some 
diversity  of  opinion  between  several  Indian 
High  Courts,  but  as  I  have  already  shown, 
it  is  impossible  to  say  in  the  present  case, 
that  there  was  gross  negligence  in  lespect 
of  each  of  the  five  applications,  which  is 
the  object  of  this  suit  to  impeach.  More- 
over, even  in  this  Madras  case  [Chunduru 
Ponniyya  v.  Rajam  Viranna  (11)]  it  was 
pointed  out  that  mere  omission  of  a  guar- 
dian to  appear  at  the  trial  does  not  neces- 
sarily amount  to  gross  negligence.  If  this 
were  true  of  a  mere  non-appearance  in  the 
suit,  it  would  possibly  be  even  more  true 
of  a  mere  omission  to  appear  in  execution 
proceedings.  The  decision  in  Sellappa 
Goundan  v.  Masa  Naiken  (12)  is  wholly  in- 
apposite, for  therein  the  guardian  of  the 
minor  was  found  to  have  had  an  interest 
adverse  to  him.  It,  therefore,  seems  to  me 
to  be  clear  that  the  present  suit  is  barred 
by  s.  47  of  the  C.  P.  C. 

The  question  of  limitation  has  been 
argued  at  some  length  before  me.  It  has 
been  urged  that  the  lower  Appellate  Court 
was  incorrect  in  applying  Art.  12  thereto, 
It  has  been  pointed  out  on  behalf  of  the 
appellant  that  Art.  12  only  applies  if  the 
sale  is  valid  till  it  is  set  aside:  c/.  Khiarajmal 
v.  Daim  (13),  and  that  it  has  no  application 
to  a  caee  like  the  present  where  the  appel- 
lant alleges  that  the  execution  proceedings 
were  ultra  vires  and  void:  c/.  Jwala  Sahai 
v.  Masiat  Khan  (14)  and  Nazar  All  v.  Kedar 
Ndth  (15).  For  reasons  already  given,  how- 

(11)  70  Ind  Cas.  668;  45  M.  425;  15  L.  W.  427;  (1922) 
M,  W.  N.  213,  (1922)  A.  I.  R.  (M.)  273;  42  M,  L.  J,  429. 

(12)  76  Ind.  Gas.  1018;  47  M.  79;  (1923)  M.  W.  N.  775; 
45  M.  L.  J.  675;  18  L,  W.  838;  33  M.  L.  T.  126;  (1924) 
A.  1.  R.  (M.)  297. 

(13)  32  0.  296  at  p.  312;  9  0.  W.  N.  201;  2  A,  L.  J.  71; 
7  Bom.  L.  R,  1;  1  0.  L.  J.  584;  32  I.  A.  23;  8  Sar,  P.  0, 
J.  734  (P.  C.). 

(14)  26  A.  346;  A.  W.  N.  (1904)  35;  1  A.  L.  J.  53. 
(15;  19  A,  308;  "A.  W.  N.  (1897)  71;,  8  Ind,  Deo.  (N  §,J 


J.  C  1926] 


2AMORTN  RAJA  OP  CALICUT  V.  VWEAXlittRtf  AJfili  245 


?,  it  to  impossible  for  me  to  hold  that  the 
appellant  wag  not  at  all  represented  in  the 
previous  execution  pro'ceed  ings.  Therefore, 
no  question  of  these  proceedings  being  ab 
initio  void  arises,  Even,  therefore,  had 
the  decision  as  to  whether  the  plaintiff's 
suit  could  Succeed  or  not  depended  on  the 
liiere  question  of  limitation,  I  should  hava 
seen  ho  reason  for  differing  from  the  find- 
ing arrived  at  by  the  k>wer  Appellate  Court 
on  this  point. 

There  is,  however,  a  further  ground  on 
whieh  the  present  suit  must  be  pronounced 
an  utterly  hopeless  ona,  which  was  inevitably 
bound  to  fail.  Even  if  the  plaintiff  could 
have  got  over  the  bars,  which  have  been 
found  to  exist  against  him,  both  under  s.  47 
of  the  C.  P.  C.,  and  that  of  limitation,  it 
would  obviously  have  be^n  improper  for 
any  Ccmrt  to  have  exercised  its  discretion 
in  the  direction  of  giving  him  the  declar- 
atory decree  which  he  seeks  in  the  present 
case.  It  is  impossible  to  take  seriously  the 
suggestion  made  on  behalf  of  the  appellant 
that  th,e  present  suit  is  not  one  for  setting 
aside  a  sale.  If  that  ia  not  the  sole  and 
primary  object  of  the  suit,  then  it  is  a  mean- 
ingless one.  The  remarks  of  their  Lord- 
ships of  th3  Privy  Council  at  pages  351*  and 
852*  of  the  decision  in  Malkarjun  v.  Narhari 
(16)  are  peculiarly  pertinent  in  this  connec- 
tion and  have  full  application  in  the  present 
ca^e.  What  we  have  to  decide  in  this  case 
is  what  is  the  real  nature  of  the  suit.  Most 
obviously  the  replv  is  that  the  real  object 
of  the  suit  is  to  set  aside  the  execution  sale, 
although  a  faint  attempt  is  made  to  obscure 
this  fact  by  merely  asking  a  relief  that  the 
five  orders  we  are  concerned  with  should 
merely  be  declared  to  be  null  and  void 
agahist  the  plaintiff.  A  Full  Bench  of  the 
Calcutta  FTiijli  Court  in  Sharoop  Dass 
Mondal  v.  •/  .vv-.^r  Roy  Chowdhry  (17) 
remarked  as  follows  at  page  567t  thereof:  — 

"As  a  general  principle,  in  construing 
this  Act,  of  the  Legislature  we  ought  not  to 
regard  a  case  as  coming  under  A?t.  120, 
unless  clearly  satisfied  that  it  does  not  come 
uader  one  of  the  many  articles  dealing 
with,  specific  cases*  Further,  if  there  be 
two  articles  which  may  cover  the  qaae,  the 


one,  however,  more  general  and    the  other 
m'pso  |  V.r!T<Mi;:,r(-:-  specific,  as  a  piindplc*  of 
:*  •-•  i»  :»,?:  s:  i  A.2i£;  5  a  w  \  i  -  ;  .  •„:.  L. 

J.   •-  :>»l   -    '    if  '••/^Tgar.P.  0,J  :•••:»  • 
;  7,  I'-1  •  •  H  .  :  i    '  V.  N.  484;  13  Ind.  Dea  (».  *')  962. 


of  2(3 


construction  the  more  particular  and  specific 
article  ought  to  be  regarded  as  the  one 
governing  the  case.1' 

I  fully  concur,  therefore,  with  the  find- 
ings of  the  Additional  District  Judge  in 
paras  10  and  11  of  his  judgment. 

From  any  and  every  point  of  view, 
therefore,  the  present  suit  was  bound  to 
fail. '  The  appeal  is  accordingly  dismissed. 
The  appellant  must  bear  the  respondent's 
costs.  Costs  in  the  lower  Courts  as  already 
ordered. 

G.  E.  D.  Appeal  dismissed, 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1520  op  1922. 

April  29,  1925. 

Present: — Mr.  Justice  Phillips. 

M.  R.  RY.  MANAVIKRAMA  ZAMORIN 

RAJA  AVERGAL  OP  CALICUT  THROUGH 

K.  SRINIFASA  RAO  Ave*GAL, 

ZAMORIN  ESTATE  COLLECTOR— 

PLAINTIFF— APPELLANT 

versus 

P.  VENKATAGIRI  PATTAR  AHD  OTHBRS 
— DEFENDANTS— RESPONDENTS. 

Limitation  Act  (IX  of  190$),  Sch.  /,  Arts.  11,2,  /U 
1kb — Assignment  of  lean  — -  Forfeiture,  of  lease- 
Suit  for  possession—  Limitation— Civil  Procedure  Code 
(Act  V  of  1908),  88.  11,  Uxpl  IV— Suit  by  lessee  for 
renewal — Subsequent  suit  for  possession  by  lessor-, 
Adverse,  possession,  whether  can  be  pleaded 

Article  143  of  Snh.  I  to  the  Limitation  Act  only 
applies  to  suits-  to  enforce,  reliefs  claimable  by  reaaoft 
of  forfeiture  or  of  breach  of  condition  under  a  contract 
and  can  only  apply  to  suits  broughtr,;  against  parties 
who  have  incurred  that  forfeiture  «r  committed  the 
breach,  [p.  216,  col.  1  ] 

Where,  however,  a  person  holding  under  a  lease 
containing;  conditions  of  forfeiture  has  assigned  his 
right  to  another  person,  a  suit  by  the  lessor  against 
the  assignee  for  recovery  of  property  by  reason  of 
forfeiture  or  breach  of  conditions  in  the  lease  is  not 
governed  by  Art,  14$.  The  proper  Article  applic- 
able is  Hi  or  U2,  as  the  case  may  be.  [Md.] 

Where  an  assignee  from  a  lessee  sues  the  lessor  for 
renewal  of  the  lease  and  fails,  it  is  not  open  to  him 
in  a  subsequent  suit  by  the  lessor  to  plead  title  by 
adverse  possession.  SU/M  u  pirn  ought  to  have  been 
set  up  in  the  prior  .-mi  _p  2 !<»,<•-)!  2>  p.  217, col.  1.1 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  South 
Malabar  at  Palghat,  in  A.  8.  No.  9  of  1920 
(A,  S  No.  1008  of  1920  on  the  ale  of  the 
District  Court  of  South  Malabar)  preferred 
against  that  of  the  Court  of  the  District 
Munaif,  Aiatur,  in  O.  S.  No.  26  qf  1918, 

Mr.  K.  Kutti  Krishna  M enonrf or  tha  Ap- 
pellant. 


MG          MANAVIKABAMA  JZAMOBIN  RAJA  OF  CALICUT  t>.  VENKATAGIRI  PATTAR.         [92  I.  0. 1926} 


Messra.    A.  Sivarama  Menon  and   P.  S. 
Narayanasami  Iyer,  for  the  Respondents. 

JUDGMENT.— In  this  case  the  appel- 
lant-plaintiff demised  the  suit  property  to 
Krishnan  Nayar  and  Kunju  Nayar  on 
Adimayavana  right  on  7th  April  1908.  In 
J900,  the  lessees  assigned  their  right  to  the 
first  defendant  and  the  father  of  the  second 
defendant.  The  lease  contains  a  provision 
that  on  the  expiry  of  every  12  years  a 
renewal  fee  of  Rs.  125  shall  be  paid  by  the 
lessee  and  further  documents  exchanged 
between  the  parties.  Accordingly  the  as- 
signees brought  a  suit  in  J913  for  renewal 
of  the  Adimayavana  lease  and  for  the 
acceptance  of  the  renewal  fee  It  was  then 
held  that  the  Adimayavana  lease  being 
inalienable,  the  plaintiffs  in  that  suit  could 
not  obtain  a  valid  assignment  and,  therefore, 
their  suit  was  dismissed.  The  plaintiff  now 
brings  the  present  suit  in  1918  to  recover 
possession  of  the  suit  properties  from  the 
assignees  and  their  representatives.  The 
facts  are  all  recited  in  the  plaint  and  the 
first  prayer  in  the  plaint  is  "that  a  decree 
may  be  passed  directing  the  defendants  to 
surrender  the  schedule  items  to  the  plaint- 
iff by  virtue  of  the  Kaichit  of  J073  describ- 
ed in  para.  2  and  on  the  strength  of  title,  as 
the  Adimayavana  right  has  ceased.11  Both 
the  lower  Courts  have  found  that  the  plaint- 
iffs suit  is  barred  by  limitation,  because 
Art.  143  is  applicable.  That  Article  provides 
for  a  suit  in  which  the  plaintiff  has  become 
entitled  to  possession  of  immoveable  pro- 
perty by  reason  of  forfeiture  or  breach  of 
condition.  Had  this  suit  been  brought  by 
the  plaintiff  against  the  lessees,  Krishna 
Nayar  and  Kunju  Nayar,  the  suit  would 
undoubtedly  have  come  under  Art.  143,  but 
as  I  understand  that  Article,  it  only  ap- 
plies to  suits  to  enforce  relief  claimable 
by  reason  of  forfeiture  or  of  breach  of 
condition  under  a  contract  and  can  only 
apply  to  suits  brought  against  parties  who 
have  incurred  that  forfeiture  or  committed 
the  breach.  In  the  present  case  the  defend- 
ants are  not  parties  to  the  lease- deed  and 
have  not  themselves  incurred  any  forfeiture, 
or  broken  any  condition  in  a  contract 
between  them  and  the  plaintiff.  It  seems 
to  me,  therefore,  that  Art.  143  is  clearly 
inapplicable.  In  fact  when  the  plea  of 
limitation  was  first  raised  in  the  defendants1 
written  statement,  Art.  144  was  relied  on 
and  that  or  Art.  142  is  the  Article  which  is 
applicable. 
The  contention  is  raised  for  the  respond- 


ents that  they  are  taken  by  surprise  by  this 
plea  that  Art.  143  is  not  applicable,  but  in- 
asmuch as  the  defendants  did  not  plead 
this  Article  in  bar  in  the  first  Court  and  both 
in  the  grounds  of  appeal  to  thp  lower  Ap- 
pellate Court  and  in  the  grounds  of  appeal 
to  this  Court,  the  point  has  been  taken  that 
Art.  143  is  not  applicable;  and  inasmuch 
as  it  was  not  in  the  first  place  the  con- 
tention of  the  defendants  that  Art.  142  is 
applicable,  this  plea  of  being  taken  by  sur- 
prise cannot  be  upheld. 

The  question  then  remains  whether  the 
plaintiff's  suit  is  barred  by  Art.  144,  in 
which  case  the  period  of  12  years  begins 
when  the  possession  of  the  defendants  be- 
comes adverse  to  the  plaintiff.  The  defend- 
ants got  into  possession  by  virtue  of  their 
assignment  from  the  original  lessees,  and 
the  lessees  were  entitled  to  let  anybody 
into  possession  during  the  terjns  of  their 
tenancy  which  enured  for  at  least  12  years. 
-During  that  period  of  12  years  from  1898, 
the  possession  of  the  defendants  under  the 
lessees  was  under  the  lessees  who  held 
under  the  plaintiff.  There  can,  therefore, 
be  no  question  of  the  possession  of  the  de- 
fendants being  adverse  to  .the  plaintiff 
from  the  date  of  their  assignment.  It  could 
only  become  adverse  after  the  12  years1 
lease  had  expired  and  the  legal  origin  of 
their  possession  had  changed.  In  that 
view  this  suit  is  within  time. 

It  is  then  contended  that  Art.  142  will 
apply  and  the  plaintiff  must  prove  that  he 
has  been  dispossessed  of  the  property 
within  12  years  of  the  suit.  During  the 
12  years  subsequent  to  1898  the  property 
was  in  the  possession  of  the  defendants 
with  the  permission  of  the  plaintiff's  tenants 
and,  therefore,  it  cannot  be  said  that  the 
plaintiff  was  dispossessed,  for  his  tenants 
were  entitled  to  possession  and  could  allow 
defendants  to  enter  into  possession.  It  is 
suggested  that  the  defendants  by  reason 
of  the  assignment  in  1900  prescribed  for 
an  Adimayavana  tenure  as  against  the 
original  lessees  and  also  plaintiff.  If  that 
were  so,  their  title  had  become  complete 
before  the  suit  of  1913  was  filed.  Inas- 
much as  that  suit  was  based  on  the  allega- 
tion that  the  defendants  were  the  Adima- 
yavana tenants  of  the  plaintiff,  the  plea 
that  they  had  obtained  such  a  right  by 
adverse  possession  should  have  been  plead- 
ed. Not  having  taken  such  a  plea  in  that 
suit,  the  defendants  are  precluded  under 


SHRO  NANDAtt  t>.  HIRA  LAL, 


[92  1C.  1926] 

Expl;  IV  to  s.  11,  C,  P.O.  from  raising  it 
now. 

,  The  plaintiff's  suit  seems  to  have  been 
very  inefficiently  conducted  in  the  lower 
Courts  and  a  large  number  of  issues  have 
been  framed  which  seem  to  be  quite  ir- 
relevant, iaview  of  the  fact  that  the  plaint- 
iff does  not  claim  by  reason  of  any  for- 
feiture incurred  by  the  defendants.  It  is, 
however,  argued  that  there  are  other 
points  in  the  case  which  should  be  deter- 
mined and,  therefore,  I  think  it  is  advisable 
to  refer  the  appeal  back  to  the  lower  Ap- 
pellate Court  for  decision  on  the  other 
point  which  it  considered  unnecessary  to 
decide  and  any  other  points  that  legally 
arise.  The  view  of  the  case  set  out  here 
does  not  seem  to  have  been  pleaded  de- 
finitely in  the  lower  Courts  and,  therefore,  I 
think  that  the  respondents  are  entitled  to  a 
further  hearing. 

I  may  also  add  that  the  plaintiff  relies  on 
the  breach  of  another  condition  in  the 
AdimayavAna  lease,'  namely,  that  no  re- 
newal fee  was  paid  on  the  expiry  of  the  12 
years1  time  and  consequently  he  is  entitled 
to  recover  possession  of  the  property  on 
that  ground. 

I,  therefore,  set  aside  the  decree  and 
remand  the  case  to  the  lower  Appellate 
Court  for  further  hearing  and  for  decision 
in  the  light  of  the  above  remarks  on  the 
other  point  or  paints  which  were  not  deter- 
mined befoie.  It  is  suggested  for  the  re- 
spondents t/hat  additional  evidence  should  be 
taken,  but  the  respondents'  Vakil  has  been 
unable  to  point  out  in  what  respect  evidence 
can  now  be  admitted  which  should  not 
have  been  adduced  in  the  Trial  Court  as  the 
case  was  understood  there.  I  leave  it  to  the 
discretion  of  the  lower  Appellate  Court 
to  decide  whether  any  additional  evidence 
ia  necessary.  Costs  of  this  appeal  will 
abide  the  result. 

Court-fee  on  the  memorandum  of  appeal 
will  be  refunded  to  the  appellant. 

v.  N.  v. 

N.  H.  Case  remanded. 


247 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  313  OP  1924. 

December  5,  1925. 
Present : — Mr.  Stuart,  C.  J.  and 

Mr.  Justice  Misra. 
SHEO  NAN  DAN  AND  OTHERS— 
PLAINTIFFS— APPELLANTS 

versus 

HIRA  LAL  AND  OTHERS— DEFENDANTS 
— RESPONDENTS. 

Adverse  possession — Occupancy  rights. 

Occupancy  rights  can  l>e  the  subject  of  adverse  pos- 
session. |  p.  248,  "col.  2  ] 

Madhavrao  Waman  Saundalgekar  v.  Raghunath 
Venkatesh  Deshpande,  74  Ind  Gas  362;  50  I  A  255; 
25  Bom  L.  U  1005,  (1923)  M.  W.  N  689;  (1923)  A. 
I.  K  (P.  C  )  205;  33  M  L.  T  389;  47  B  798,  28  C  W. 
N.  857;  20  L  W.  216,  47  M,  L.  J  248  (P.  G ),  disting- 
uished. 

Appeal  against  a  decree  of  the  Addi- 
tional Subordinate  Judge,  Lucknow,  dated 
the  10th  May  1924,  confirming  that  of  the 
Munsif,  Havali,  Lucknow,  dated  the  31st 
May  1923. 

Mr.  Ishri  Prasad,  for  the  Appellants. 

Mr.  Daya  Kishan  Seth,  for  Respondent 
No.l. 

JUDGMENT.— This  appeal  arises  out 
of  a  suit  brought  by  the  plaintiffs-appellants 
against  the  defendants-respondents  for 
possession  of  two  plots  of  land  No.  400, 
measuring  8  biswas  and  No.  444  measuring 
16  biswas  15  biswansis  situate  in  village 
Sarawan  Farindpur,  District  Lucknow. 

The  facts  of  the  case  are  that  one  Baryar, 
the  grandfather  of  the  plaintiffs-appellants 
£ot  a  decree  for  'kabzadari  rights  in  respect 
of  these  plots  from  the  Settlement  Court  on 
the  29th  of  May,  1889  that  the  plaintiffs 
claiming  to  be  the  heirs  of  the  said  Baryar, 
alleged  that  they  are  entitled  to  those 
plots,  that  the  defendant  has  been  in  wrong- 
ful possession  over  them  for  a  long  time 
and  that  when  they  aaked  him  to  de- 
liver possession  to  them  he  refused  to  do 
so  on  the  ground  that  he  was  a  mortgagee 
of  the  Ifend.  The  plaintiffs  further  claimed 
that  they  should  be  allowed  to  redeem  in 
case  the  mortgage  was  established.  The 
defendant  denied  the  plaintiffs*  title  and 
contended  that  he  had  purchased  the  plots 
at  a  Court-sale  and  had  become  owner  of 
'kabzadari*  rights  by  adverse  possession. 
He  also  denied  the  mortgage  set  up  by  the 
plaintiffs. 

The  Trial  Court,  the  Munsif  of  Havali, 
Lucknow,  in  having  arrived  at  the  findings 
that  the  plaintiffs  had  failed  to  prove  the 
mortgage  set  up  by  them  and  that  the  de- 


148 

fendant  'had  established  ina  adverse  pos- 
session, dismissed  the  plaintiffs1  suit 

On  appeal  the  learned  Additional  Sub- 
ordinate Judge,  Lucknow,  has  confirmed 
those  findings  and  dismissed  the  plaintiffs* 
appeal. 

The  plaintiffs  have  now  come  to  this 
Court  in  second  appeal  and  the  contention 
raised  by  the  learned  Pleader,  on  their  be- 
half is  two-fold.  Firstly,  that  Baryar,  the 
grandfather  of  the  plaintiffs,  had  acquired 
occupancy  rights  through  the  Settlement 
Court  and  that  the  plaintiffs,  as  his  grand- 
sons, are  now  entitled  to  those  rights. 
Secondly,  that  the  defendant  being  in  pos- 
session as  mortgagee  cannot  "plead  adverse 
possession  in  his  favour  in  regard  to  occu- 
pancy rights  and  that,  therefore,  the  plaint- 
iffs be  decreed  possession  of  the  land  on 
condition  of  their  paying  to  the  defendant, 
the  moil^iigo  money.  The  case  originally 
came  before  one  of  us  sitting  singly  and  it 
has  now  been  put  up  before  us  on  a  refer- 
ence by  him  to  a,  Bench. 

As  to  the  first  point  it  appears  to  us  to 
be  clear  that  the  rights  conferred  by  the 
Settlement  decree,  dated  the  29th  May  1869, 
a  copy  of  which  is  on  the  record  and  is 
marked  Ex.  1  are  the  occupancy  rights  as 
contemplated  by  s,  5  of  the  Oudh  Rent  Act 
(Act  XIX  of  1868),  which  was  the  Act  then 
in  force.  The  Settlement  Officer  has  clearly 
stated  in  his  judgment  that  the  ancestors 
of, Baryar  were  owners  of  the  village  within 
the  period  provided  in  the  said  section, 
and  that  they  lost  the  village  owing  to  the 
taluqdar  having  forcibly  made  it  a  part  of 
his  estate.  The  said  officer  also  allowed 
Baryar  a  deduction  of  12  per  cent,  from  his 
reut^l.  There  can  under  the  circumstances 
be  i?o  room  for  doubt  that  the  intention  of 
the  Settlement  Officer  was  to  confer  on  the 
ancestor  of  the  appellants,  occupancy  rights 
as  stated  in  s.  5  of  the  said  Act.  The  saM 
rights  being  heritable  the  appellants  would 
l?e  entitled  tp  them. 

As  to  the  second  point,  we  might  state 
th$t  the  mortgage  set  up  by  the  appellants 
has  not  been  proved.  This  being  a  find" 
ing  of  fact  we,  oannot  interfere  with  it  in 
second  appeal. 

It,  therefore,  remains  a  matter  bidden  in 
ob&curjty  a^  to  how  the  d^fenda^t  came  in 
possession  of  the  land  in  dispute.,  ill  may, 
h$ve  been  that  B,arya«r  was  ejiected  ffoin 
his  holding  and  the  taluqdar.  reoagaized 
the  respondent  aa  the  occupancy 
l-fefc  J#fld<u  la  the  feftcurra  of  the, 


NAND4N  tr.  KlRA  LAL. 


[«-!  i  #1*381: 


ment  of  the  District  prepared  in  1304  Faslv 
the  defendant  is  shown  as  the  'kabtadar  of 
one  plot  and  as  the  purchaser  of  the  other, 
and  this  record  has  been  continuously  kejrt 
up  since  then.  We  have  bien  informed 
during  the  course  of  arguments  that  no 
sale-deed  had  been  executed  by  Baryar  in 
favour  of  the  defendant,  but  that  he  pur* 
qhased  those  rights  at  an  auction  sale.  It 
is,  therefore,  clear  that  the  defendant  does 
not  hold  the  land  under  Baryar  or  the 
plaintiffs.  If  the  alleged  mortgage  ^  in 
favour  of  the  defendant  had  been  establish- 
ed, it  appears'to  us,  in  that  casd  it  should 
not  have  been  possible  for  the  defendant 
to  have  successfully  set  up  an  adverse  title 
to  himself,  but  the  finding  of  the  Courts 
below  on  this  point  is  against  the  appel- 
lants. If  Baryar,  the  ancestor  of  the  plaint- 
iffs, lost  possession  long  ago  and  they  have 
not  been  in  possession  at  any  time  during 
the  course  of  12  years  prior  to  the  institution 
of  the  suit,  they,  in  our  opinion,  cannot  be 
allowed  to  recover  the  land  in  dispute  front 
the  defendant  on  the  mere  allegation  that 
at  one  time  it  was  the  property  of  their 
grandfather. 

An  argument  is  put  forward  before  us  to 
the  effect  that  the  occupancy  rights  cannot 
be  lost  by  adverse  possession  for  more  than 
12  years  and  in  support  of  it  reliance  is 
placed  on  a  ruling  of  their  Lordships 
of  the  Privy  Council  reported  in  Madhav- 
rao  Waman  Saundalgekar  v.  Raghunath 
Venkatesh  Deshpande  (1),  ^hich  relates 
to  'watan  lands  usually  fcunl  in  the 
Bombay  Presidency.  Their  Lordships  ob- 
served in  that  judgment  that  it  was  some- 
what difficult  to  see  how  a  title  with  regard 
to  'watan'  land  could  be  created  by  adverse 
possession  for  more  than  12  yetfrs  when 
the  alienation  of  such  land  was.  prohibited 
in  the  interest  of  the  State.  We  have  given 
our  best  consideration  to  this  point  and  it 
appears  to  us  that  the  tenure  of -the  Vzmtan' 
lands  is  quite  diffcrent  from  the  tenure  cf 
the  occupancy-lands.  Under  the  Bombay  Act 
(Act  III  of  1874)  *watan  lands  are  landsfheld 
or  assigned  for  the  purpose  of  providing 
remuneration  for  the  performance  of  the 
duties  appertaining  to  a  hereditary  office, 
such  office  meaning  an  office  held  here- 
ditarily for  the  performance  of  duties  con- 
nected with  the  administration  or  collection 

(1)  74  Ind.  Gas.  362;  50  I.  A,  255;  25  Bom.  L.  R. 
1005;  (1923)  M.  W.  N.  f>89;  (1923)  A.  I.  R  (P.  0.)  205; 
33  M.  L,  T.  389;  47  B,  798;  28  C,  W.  N.  857;  20  L.  W, 
848;  47  M,  L,.l,248<F.  0.; 


In  the  matter  of  TSHAR  DAS-DUAUAM  CHAND. 


240 


of  the  public  revenue  or  with  the  village  they  \vere  divided  from  ,  the  insolvent  and 
Police,  or  with  other  similar  matters.  Under  that  their  shares  should  not  be  sold.  The 
circumstances  it  would  be  impos-  learned  Judge  has  not  considered  the  ques- 
tion whether  the  shares  of  the  appellants 
are  liable  to  satisfy  the  debts  of  the  insolv- 
ent. He  has  allowed  the  Official  Receher 
to  sell  the  insolvent's  interest  in.  the  pro- 
perty leaving  it  to  future  litigation  to 
determine  the  rights  of  the  parties.  We 
consider  in  a  case  like  this  it  is  not 
proper  that  the  insolvent's  property  should 
be  sold  when  there  is  a  cloud  on  the  title 
which  could  be  removed  by  a  proper 
proceeding  under  s.  4  of  the  Proyincial 
Insolvency  Act.  We,  therefore,  set  aside 
the  order  and  direct  the  District  Judge 
to  restore  the  application  to  file  and, 
treat  it  as  an  application  under  s.  4  of  the 
Act  and  dispose  of  it  according  to  law.  The 
Official  Receiver  has  the  power  under  the 
Act  to  sell  the  shares  of  the  sons  of  the 
insolvent  and  it  would  be  for  the  sons  to 
make  out  that  their  shares  are  not  bound 
to  liquidate  the  debt  contracted  by  their 
father. 

Costs   of   this    appeal    will    abide    the 
result. 


thesb  circumstances  it  would  be  mpos 
sible  to  allow  rights  in  'watan  lands1  to  be 
capable  of  feeing  acquired  by  adverse  pos- 
session \  to  do  so  would  mean  conferring  a 
hereditary  oiffice,  rights 'and  the  privileges 
attached  to  it  by  Cleans  of  adverse  poq- 
se^bion.  We,  therefore,  are  of  opinion  that 
thfe  principle'  enunciated  in  the  said  ruling 
is  ^applicable  to  the  facts  of  the  present 
case.' 

We  are,  therefore,  of  opinion  that  the 
plaintiffs'  suit  was  rightly  dismissed  by  the 
Courts  below,  and  we  hereby  dismiss  the 
appeal  with  costs. 

'N.  R.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  OKDBR  No.  434  OF  1924. 

September  29,  1925. 
Present: — Mr.  Justice  Devadoss  and 

Mr.  Justice  Wallet. 

AKBLLA  RAMA80MAYYAQULU  AND 
OTHERS— PETITIONERS — APPELLANTS 

versus 

THE  OFFICIAL  RECEIVER,  GODAVARL 
RAJAHMUNDRY- RESPONDENT. 

Provincial  Insolvency  Act  (V  of  1020) ,3.  Jf— Hindu 
father  Adjudicated  insolvent—  Objection  of  sons  to  *ale 
by  Receiver—  Order  for  sale  without  deciding  rights  of 
parties,  whether  proper. 

Where  a  Hindu  father  is  adjudicated  an  insolvent 
and  the  -ois^  ;,:  |  }\-  •  .  the  Court  objecting  to  the  sale 
of  the  in!1.-*  ,  i-iii'y  properties  advertised  by  the 
Receiver  on  the  ground  that  they  were  divided  and 
that  their  share  ought  not  to  be  sold,  the  Court  ought 
not  to  allow  the  insolvent's  interest  in  the  property 
to  be  suld  leaving  it  to  future  litigation  to  determine 
the  rights  of  parties. 

Th^e  Official  Receiver  has  the  power  under  the  Pro- 
vincial Insolvency  Act  to  sell  the  shares  of  the  sons 
to  a  Hindu  insolvent  unless  the  sons  make  out  that 
their  shares  are  not  bound  to  liquidate  the  debt  con- 
tractecj  by  their  father.  The  Court,  therefore,  ought 
to  inquire  and  decide  on  tl^e  rights  of  parties. 

Appeal  agaiust  an  order  of  the  District 
Court,  Gyodavari  at  Rajahmuudry,  dated 
tte'SSth  October  1&24  and  mad?  in  I.  A.  No. 
524  of  1924  ft.  I.  P.  No,  30  of  1923. 

Mr.  P.  Satyana,myanay  for  th.e  Appellants, 
•     'Mr.  D,  Appa  Row,  for  fcfre  Respondent. 

«J UDdrME^T.-1- The  appellants  are  the 
Qpitar'of  tbe  'iu9pl^n>k    Th$y,  applied  to 
10  wear  Court  for  stay  of  salo  adverted*  ic 
hoUori29th  August  im  by  t. 
Receiver  of  GociaVari  on  the  ground  that 


Order  set  aside. 


V.  N.  V. 

N.  H. 


LAHORE  HIGJJ 

MISCELLANEOUS  CIVIL  CASE  IsTo.  655  OF  1923, 

January  20,  1925. 
Present:—  Mr.  Justice  Broadway  and 

Mr.  Justice  Zafar  AH. 
In  the  matter  of  ASSESSMENT  OF  INOOMB  TAX 

OM  MESSRS,  ISHAR  DAS  DHARAM 

CHASDopKATRA  AHLUWAL1AN, 

AMRITSAR—  PETITIONERS, 

Income  Tax  Act  (XI  of  1922),  ss  9,  W—  Applica- 
tion to  Income  Tax  Commissioner  —  Application  to 
High  Court  —  Reference  by  Commissioner  —  All  points 
in  case,  wliether  to  be,  stated  —  Loss  incurred  by  standing 
<*  .  ,v.  .••»  •/  ;  tsin&ss. 

'i  •  •»  •  :  :  •.••.•'  under  s.  66  (2\  Income  Tax  Act,  to 
tne  (jominiiaioner  of  Income  Tax  '  should  state  the 
questions  pf  la^w  which  the  petitioner  desires  to  be 
referred  to  the  pigh.  Court.  Jo.  the  same  way  the 
!ij  -plication  under  s.  66  (3)  to  th$  High  Court  shoijM 
also  specify  the  question  or  questions  of  law  which 
the  applicant  considers  ought  to  have  been  referred 
to  the  High  Court  by  the  Commissioner,  It  only  one 
of  seyeraj  •;  ,«,--i  -.1  i»ii-»i  before  the  Commiflaipner 
is  raised  m  !  "  i»j  ;  ..  •  ;:  .'  to  the  High  'Court  under 
s.  66  (3),  r,  ,  „  ;•;  ii  -vi  be  taken  to  the  qourse,  if 
the  Commissioner  confines  his  reference  to  that  point 
atone,  [p.  25  Lv 


A  IPS  3  iuru.rnul  by  a  firm  on.  account  pf  sta 
-is  -ti  f  ,  .i.K&ier  firm,  ip  npfc  loss  iaou^rcd  iucou- 
nv:imi  witK  their  busirieas,  and  cannot  bo  deducted 
in  assessing  tha  Income-tax,  [p.  25Qt  ool.  2,] 


210 


In  the  matter  of  ISHAR  DAS-DHARAM  OHAKD. 


[92  I.  0.  1926] 


Application  under  s,  66  (3)  of  the  Indian 
Income  Tax  Act  XI  of  1922. 

Lala  Badri  Das,  R.  B,,  for  the  Petitioners. 

Kanwar  Dalip  Singh,  Government  Ad- 
vocate, for  the  Respondent, 

JUDGMENT. 

Broadway,  J.— A  joint  Hindu  family 
carrying  on  business  under  the  style  of 
Ishar  Das-Dharam  Chand  in  Amritsar  and 
elsewhere,  was  assessed  to  income-tax  by 
the  Income  Tax  Officer  on  the  25th  of 
March  1923.  It  was  found,  after  what  ap- 
pears to  have  been  a  very  full  enquiry,  that 
the  income  of  this  business,  liable  to  taxa- 
tion amounted  to  over  a  lac.  The  assessee 
then  undertook  to  pay  tax  on  a  round  sum 
of  one  lac.  This  offer  was  accepted  by 
the  Income  Tax  Officer  and  the  assessment 
was  made  accordingly.  The  ^firm  then 
petitioned  the  Assistant  Commissioner  of 
of  Income  Tax.  The  Assistant  Commis- 
sioner, after  going  thoroughly  into  the  points 
raised,  upheld  the  assessment  of  the  Income 
Tax  Officer.  Thereupon  Messrs.  Ishar  Das- 
Dharam  Chand  moved  the  Income  Tax 
Commissioner  under  s.  66  (2)  of  the  Income 
Tax  Act  and  raised  the  following  points  :•— 

(1)  That  the  rejection  of  the  statement 
of  accounts  submitted   by   the  petitioner  is 
opposed  to  law. 

(2)  That  the  assessing  authorities  were 
not    justified  in    applying  a  flat  rate    of 
5  per  cent,  to  determine  the  assessable  in- 
come. 

(3)  That  the  refusal  to  allow  a  loss    of 
Rs.  25,000  incurred  in  Bombay  as  a  business 
deduction  was  illegal. 

(4)  That  the  petitioners  being  members 
of  an  undivided  family  were  entitled  to  a 
reduction    of   Rs.  75,000   for  purposes  of 
super-tax.  It  was  asked  that  these  questions 
of  law  be  referred  to  the  High  Court.    The 
Income    Tax    Commissioner    allowed    the 
prayer  as  to  the  reduction  of  Rs.  74,000,  for 
purposes  of     super-tax,    but    declined    to 
refer  the  case  to  this  Court  on  the  ground 
that  no  questions  of  law  were   involved. 

The  petitioners  then  came  up  to  this 
Court  under  s.  t>6  (3)  of  the  Income  Tax 
Act  and  asked  this  Court  to  take  the  action 
provided  for  by  that  sub-section  in  connec- 
tion with  the  deduction  of  Rs.  25,000  refer- 
red  to  in  the  third  ground  mentioned  above. 
This  Court  not  being  satisfied  with  the 
correctness  of  the  Commissioner's  decision 
required  him  to  state  the  case  and  to  refer 
it.  The  Income  Ta^c  Commissioi^er  there- 


upon stated  the  case.  He  pointed  out 
that  the  direction  of  this  Court  did  not 
confine  the  statement  of  the  case  to  the 
only  point  raised  before  the  Court  and, 
therefore,  he  stated  the  case  relating  to  the 
three  points,  Nos.  1,  2  and  3,  raised  before 
him.  Before  us  the  case  has  been  argued 
on  behalf  of  the  petitioners  by  Mr.  Badri 
Das,  while  the  learned  Government  Advo- 
cate has  addressed  us  on  behalf  of  the 
Commissioner. 

Mr.  Badri  Das  has  addressed  us  on  two 
points  only.  He  has  urged  (1)  that  the 
application  of  a  flat  rate  was  without  any 
material  on  the  record  and  was,  therefore, 
erroneous  and  illegal,  and  (2)  that  a  sum 
of  Rs.  25>000  should  have  been  deducted 
from  the  total  income  and  treated  as  a  loss. 
The  second  point  is  the  point  which  was 
taken  in  the  petition  to  this  Court. 

It  appears  that  the  petitioners  have  got  a 
branch  of  their  business  at  Bombay.  There 
they  stood  surety  for  another  firm.  That  firm 
became  insolvent  with  the  result  that  the 
petitioners  had  to  pay  the  sum  of  Rs.  2,5000 
It  has  been  held  by  the  Income  Tax  Officer 
that  the  loan  for  which  the  petitioners 
stood  surety  had  nothing  whatever  to  do 
with  the  petitioners'  business.  The  peti- 
tioners stood  surety  in  order  to  do  friends 
of  theirs  a  kindness.  It  is  unfortunate  that 
they  have  been  called  upon  to  pay  up  for 
their  friends,  but  inasmuch  as  this  stand- 
ing of  surety  was  not  in  the  course  of  the 
petitioners1  business,  it  cannot  be  said  that 
the  loss  was  incurred  in  connection  with 
the  petitioners'  business.  The  refusal  to 
allow  this  amount  to  be  deducted  from  the 
total  assessable  income  was,  therefore,  per- 
fectly correct. 

As  to  the  first  point  the  learned  Govern- 
ment Advocate  urged,  firstly,  that  inasmuch 
aa  the  only  point  raised  before  this  Court 
by  the  petitioners  was  that  relating  to  the 
deduction  of  Rs.  25,000  the  statement  of 
the  case  in  so  far  as  it  related  to  any  other 
points  was  unnecessary.  In  the  alternative 
he  contended  that  the  decision  on  that 
point  was  one  of  fact  and  that  the  applica- 
tion of  a  flat  rate  was  justified.  The  langu- 
age of  s.  66  (3)  is  wide  and  it  is  not  easy 
to  say  whether  it  was  the  intention  of  the 
Legislature  that  this  Court  should  confine 
itself  to  the  points  raised  before  it,  or 
whether  the  raising  of  one  point  in  the 
application  to  the  Court  would  necessitate 
the  statement  of  all  the  points  raised  before 
the  Commissioner  although  not  pressed  iq 


8RINIVASA  OHBTTI  V.  CHEN  N A  CHBTTI. 


|92  1. 0, 1926] 

the  application  to  this  Court.  Under  s.  66 
(3)  an  assesses  may  apply  to  the  Commis- 
sioner "requiring  him  to  refer  to  the  High 
Court  any  question  of  law  arising  out  of 
such  order,  and  the  Commissioner  shall, 
within  one  month  of  the  receipt  of  such  ap- 
plication, draw  up  a  statement  of  the  case 
and  refer  it  with  his  own  opinion  thereon 
to  the  High  Court."  If  the  Commissioner 
refuses  to  do  this  on  the  ground  that  no 
question  of  law  arises  the  assessee  may 
under  s.  66  (3)  apply  to  the  High  Court 
and  the  High  Court,  if  it  is  not  satisfied 
of  the  correctness  of  the  Commissioner's 
decision,  may  require  the  Commissioner  to 
state  the  case  and  to  refer  it,  and,  on 
receipt  of  any  such  requisition,  the  Com- 
missioner shall  state  and  refer  the  case 
accordingly. 

It  seems  to  me  that  the  application  under 
s.  68  (2)  to  the  Commissioner  should  state 
the  questions  of  law  which  the  petitioner 
desires  to  be  referred  to  the  High  Court 
and  I  am  also  inclined  to  the  view  that  the 
application  under  s.  66  (3)  should  also 
specify  the  question  or  questions  of  law 
which  the  applicant  considers  ought  to 
have  been  referred  to  the  High  Court  by 
the  Commissioner.  In  the  present  case 
three  points  were  taken  before  the  Com- 
missioner in  the  application  under  s.  66  (2). 
One  question  alone  was  raised  in  the  ap- 
plication to  this  Court  under  s.  66  (3\ 
and  it  seems  to  me  that  had  the  Commis- 
sioner confined  his  reference  to  the  point 
raised  before  this  Court  objection  could 
not  have  been  taken  to  his  action.  As  he 
has,  however,  stated  the  case  on  the  other 
question  I  think  it  necessary  to  dispose  of 
it. 

In  this  connection  an  examination  of  the 
proceedings  shows  that  the  enquiry  was 
not  a  cursory  or  a  summary  one.  The 
Income  Tax  Officer  called  for  the  accounts 
and  after  an  examination  of  them,  as  well 
as  of  an  auditor's  report  based  on  them 
came  to  the  conclusion  that  they  were  not 
reliable.  This  undoubtedly  is  pure  ques- 
tion of  fact.  The  Income  Tax  Officer  then 
after  a  consideration  of  the  dealings  ac- 
cepted the  turnover  as  shown  by  the  peti- 
tioners and  came  to  the  conclusion  that  a 
flat  rate  of  5  per  cent,  was  a  reasonable 
amount  to  fix.  His  finding  that  a  profit 
had  been  made  is  also  a  question  of  fact 
and  the  assessment  based  on  a  5  per  cent, 
flat  rate  cannot  be  regarded  as  unreason- 
able. Further,  in  the  present  case  it  will 


251 


be  seen  that  the  petitioners  themselves 
offered  to  pay  on  one  lac,  and  I  would, 
therefore,  hold  that  the  conclusions  arrived 
at  by  the  Income  Tax  Officer  are  correct 
and  would  dismiss  this  application  with 
costs. 

Zafar  AH,  J.~ I  concur. 

N.  H.  Application  dismissed 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PBTIHON  No.  1036 

OF  19  3. 

October  14,  1925. 

Present: — Mr.  Justice  Phillips. 

SRIN1VASA  CHKTTI— PETITIONER 

versus 

CHENNA  CHETTI  (DEAD)  AND  OTHERS 
— RESPONDENTS. 

Surety,  release  of — Misconduct  of  party. 

A  surety  to  the  Court  for  a  party  to  the  suit  under- 
taking to  discharge  a  certain  obligation  in  the  event 
of  the  suit  being  decided  in  a  certain  manner  is  not 
entitled  to  be  discharged  from,  his  obligation  under 
the  surety  bond  on  account  of  any  alleged  misconduct 
of  such  party,  whatever  remedy  the  surety  may  have 
against  the  party  himself. 

Bat  Somi  v.  Chokshi  Ishvardas  Mangaldas,  19  B.  245; 
10  Ind.  Dec,  (N.  s.)  166,  relied  on. 

Petition,  under  s.  115  of  Act  V  of  1908 
and  s.  107  of  the  Government  of  India  Act, 
praying  the  High  Court  to  revise  the  order 
of  the  District  Court,  Salem,  dated  the  26th 
March  1923,  in  I.  A.  No.  24  of  1923  (in  0.  8. 
No.  14  of  1912)  in  0.  S.  No.  7  of  1915  on 
the  file  of  the  Court  of  the  Subordinate 
Judge,  Salem. 

Mr.  A.  Ramachandra  Iyer>  for  the  Peti- 
tioner. 

Mr.  N.  C.  Vijiaraghavachariar,  for  the 
Respondents. 

JUDGMENT.— The  petitioner  stood 
surety  in  a  sum  of  Es.  4,000  for  the  re- 
spondent who  undertook  to  re-pay  to  a  minor 
his  share  of  an  estate  in  case  the  Court 
declared  that  the  minor  had  been  valid  ly 
adopted.  The  petitioner  subsequently  ap- 
plied to  be  released  from  his  obligation 
under  the  bonds  and  that  the  bonds  should 
be  cancelled.  The  District  Judge  has  held 
that  he  cannot  be  released  from  his  obliga- 
tions unless  and  until  he  finds  some  one 
else  willing  to  offer  security. 

It  is  now  contended  that  it  is  not  the 
petitioner's  duty  to  find  another  security 
but^it  is  the  respondent's  duty  either  to 
pay  up  the  whole  amount  fqr  which  the 


252 


M&fUMMAE* 


security  id  given  or  to  produce  some  other 
security.  This  ignores  the  contract  entered 
into  by  the  petitioner  that  he  would  be 
responsible  until  a  certain  specified  time 
for  any  loss  that  might  be  incurred  by 
the  minor  during  that  period  and  that 
contract  cannot  beset  aside 'at 'the  mere 
wish  of  the  petitioner.  It  is  possible  that 
he  may  have  some  remedy  against  the 
respondent  if  he  can  prove  the  misconduct 
alleged,  but  h©  has  contracted  both  with 
the  respondent,  and  with  the  Court 
that  he  will  carry  out  a  certain  promise, 
namely,  to  pay  Rs.  4,000  if  default  is  com- 
mitted by  the  respondent.  It  is  not  for 
him  ;to  say  that  he  will  or  will  not  dis- 
charge this  obligation  and,  therefore,  I 
think  that  the  District  Judge  was  right  in 
dismissing  his  application.  I  may  refer  in 
this  connection  to  a  case  reported  in  Bai 
S&mi  v.  Ghokshi  Ishvardas  Mangaldas  (1) 
which  supports  my  view, 
v.  N.  v  Petition  dismissed. 

N.  II, 
(1)  19  B,  215;  10  Tnd.  Dec.  (N.  s.)  160. 


LAHORE  HIQH  COURT, 

LITTERS  PATENT   APPEAL  No.  38  OF  1U24. 

January  21,   1925 

\      Present:  ^Sir  Shadi  Lai,  KT,  Chief 
Justice,  and  Mr.  Justice   LeRpssignol. 
DIN  MOHAMMAD  ANL>  ANOTHER— 
DEFENDANTS — APPELLANTS 

versus 

Musammat  M ATA  13  BIBT— PLAINTIFF  — 
RESPONDENT. 

Custom —Succession— Diversion  of  ancestral  property 
— Extinction  of  lineal  descendants-  Reversion. 

On  the  lineal  descendants  of  the  person,  iu  whose 
tavour  a  diversion  of  tuiosstral  land  had  bpen  made, 
dying  out,  the  land  reverts  to  the  mal^  hqirs  of  the 
last  owner  before  the  diversion,  *uid  not  to  those  of 
the  person  who  received  the  land  from  him 

Sita  R*m  v  Raja  Ram,  12  P.  B.  1892,  followed. 

Letters  Patent  Appeal  against  the  judg- 
ment of  Mr.  Justice  Martineau,  dated  4>h<e 
9th  January  1924,  in  Second  Appeal  No. 
952  of  1920,  reported  in  89  Ind  Cas.  351, 
reversing  the  decree  of  the  District  Judge, 
Lahore,  dated  the  *nd  Mnrch  1920. 

Lala  Shaukat  Kai,  for  the  Appellants.    - 

Sheikh  Niuz  Ali,  for  Mr.  Afc  Obedullah, 
for  the  Respondent* 

JU'DQMENT^The  following  f  pe- 
tflhlft  pirnlflj^A  thA.r^lata^nftbin  nf 


the    vatious 
case:*— 


Chiragh 


[92(12  CJ 

persoas    concerned 

MAHI 

I     . 


tbii 


Amir    , 

t 
Din  Muhammad* 


Musammat  Talia  Bibi  —  Shahab  Din-—  Mu$ammat    . 
[  Mahran 

•  Muhammad  Din.  Mudammat  Mehtab  Bibi, 

•  (plaintiff.) 

It  is  common  ground  that  the  land  which 
is  the  subject-matter  of  controversy  in  this 
suit,  was  I1,-,1-  ii:1.1-  r.1.:-..!  }.',.:,,  •'.  of  Ghiragh, 
an  Aro»in  .'  "/  ,  •  ;  S.  <•-..  ,.-:•:;  the  Lahore 
District  and  that  on  his  death  his-  daughter 
Musammat  Talia  Bibi  succeeded  to  the 
estate  in  preference  to  his  brother  Aiftir.  On 
MusQimmqt  Talia  Bibi'e  ^eath  the  property 
was  inherited  by  her  son  Muhammad  Dm. 
Muhammad  Din  has  died,  and  the  question 
for  determination  is  whether  his  half  sister 
Musammat  Mehtab  Bibi  ia  entitled  to  suc- 
ceed to  the  property  as  against  Amir,  the 
brother  of  Chiragh  who  was  the  original 
owner  thereof. 

It  will  be  observed  that  neither  of  the 
parents  of  Musammat  Mehtab  Bibi  had  any 
-connection  with  the  land.  The  question  is 
not  whether  anaong  the  Arain  there  is  a 
.custom  allowing  a  half,  sister  to  succeed  to 
the  estate  of  her  half  brother,  but  whether 
the  property  which  has  been  -allowed  to 
pass  out  of  the  possession  of  the  male  heirs 
of  the  original  proprietor  into  the  possession 
of  a  daughter's  son,  should  not  revert  to  the 
heir*  of  the  last,  owner  before  the  diversion. 
The  rule  eauiysiated  by  the  Full  Bench  in 
Slta  Rim  v.  Raja  Ram  (1)  is  to  the  effect 
4hat  on  the  lineal  desceudants  of  the  person 
iu  whose  favour  a  diversion  had  been  made 
dying  out  the  land  reveits  to  the  male 
heirs  of  the  last  owner  before  the  divexsion 
and  not  to  those  of  the  person  who  received 
the  land  from  him*.  In  view  of  this  ruliag, 
which  has  been  repeatedly  affirmed  m 
subsequent  judg-rierits,  we.h^ve  no  heai- 
taliou  in  holding  that  Mu?ammat  Mehtab 
Bibi  has  absolutely  no  title  to  the  prq- 


, 

Appwl 


, 

We  accordingly  accept  the  appeal  , 
setting  a^icte  t^e  jadgmeAt  of1  the  Single 
B**Jich,  dismiss  th,e,  suit  with  cosfe  through- 

out     ,  '  ;    , 

N.  H.         ... 
(I)  1  2  P.  R,  1893: 


MAUNG  BATflEW  V.  MA  THAN  MYtNT. 


253 


RANGOON  HIGH  COURT, 

FIRST  CIVIL  APPEAL  No.  166  OP  1924. 

May  5,  1925. 

:— Sir  Sydney  Robinson,  KTM  Chief 
Justice,  and  Mr.  Justice  Maung  Ba. 
MAUNG  BA  THEIN— DEPENDANT— 
APPELLANT 

versus 

MA,  THAN  MYINT  AND  OTHERS— PLAINTIFFS 
— KESPON  DENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  0  VI,  r.  17— 
Amendment  of  plaint— Causes  of  action,  difftrcut  - 
ttuddhist  Law,  Burmese — Adoption—  Kiltima  and 
Appalhitta  forms—Claim  based  on  kittima  adoption, 
failure  of — Appathitta  adoption,  whether  can  be 
allowed  to  be  set  up. 

A  plaintiff  must  be  conlined  to  the  case  that  he  seta 
up  in  his  pleadings,  or  to  ti  case  which  is  consistent 
with  those  pleadings,  [p.  254,  col  1  ] 

Amendment  of  pleadings  la  a  matter  for  the  dis- 
cretion of  the  Court  and  that  discretion  must  be  exer- 
cised with  regard  to  all  the  facts  and  circumstances 
of  the  case  [ibid.] 

The  causes  of  action  on  which  a  person  can  claim 
to  be  a  kittima  or  an  appatlntta  son  are  widely 
different,  and  different  considerations  govern  the 
question  of  these  two  distinct  forms  of  adoption  [p.  254, 
col  2} 

Where  a  plaintiff  conies  into  a  Court  on  the  basis 
of  a  kittima  adoption  and  fails  to  prove  the  case  set 
up  by  him,  he  cannot  be  allowed  to  amend  his  plaint 
so  as  to  base  his  claim  on  an  appathitta  adoption,  [ibid  J 

First  appeal  against  a  decree  of  the 
Original  Side  of  this  Court,  in  Civil  Regular 
No.  423  of  1923. 

Mr,  Kyaw  Din,  for  the  Appellant. 

Mr.  Higinbotham,  for  the  Respondents. 

JUDGMENT.-The  plaintiff  sued 
claiming  to  be  the  kittima  adopted  son  of 
U  Myat  San  and  Daw  Lay.  He  prayed  that 
the  estate  be  administered  under  the  orders 
of  the  Court.  On  three  dccasions  in  the 
plaint,  he  set  out  the  fact  of  a  kittima  adop- 
tion. There  was  no  alternative  prayer 
made  as  an  appathitta  son.  The  defendants 
also  relied  on  a  kittima  adoption. 

Two  issues  were  drawn,  namely: — 

(i)  Was  the  plaintiff  the  kittima  son  of 
U  Myat  San  and  Daw  Lay,  or  Daw  Lay 
alone? 

and, 

(ii)  If  the  first  issue  is  decided  in  the 
affirmative,  was  the  first  defendant  the 
kittima  daughter  of  U  Myat  San  and  Daw 
Lay,  and  were  the  second  and  third  defend- 
ants kittimq  son  and  daughter  respectively 
of  Daw  Lay? 

The  learned  Judge  in  the  Court  below 
held  that  the  plaintiff  had  failed  to  prove 
the  kittima  adoption  and,  therefore,  did  not 
consider  it  necessary  to  decide  the  second 


In  this  appeal,  it  is  admitted  that  it  is  im- 
possible to  contest  the  finding  of  the  Court 
below  that  the  plaintiff  was  not  the  kittima 
son  he  claimed  to  be;  but  it  is  sought  to 
obtain  leave  to  amend  the  plaint  by  insert- 
ing an  alternative  claim  as  an  appathitta 
son,  and  we  have  heard  Counsel,  in  the  first 
instance,  on  the  question  whether  such  an 
amendment  can  be  allowed  at  this  stage, 

We  have  been  referred  to  a  number  of 
authorities  on  the  matter. 

In  the  case  of  Maung  Aingv.  Ma  Kin  (1), 
the  Judicial  CommiHsioner  of  Upper  Burma 
expressed  an  opinion  that  such  a  procedure 
was  questionable.  It  was  not,  however, 
necessary  in  that  case  to  decide  the  point. 

In  Ma  Sa  Yi  v.  Ma  Me  Gale  (&)  Mr.  Justice 
Birks  did  not  decide  the  point,  because, 
even  if  the  plaintiff  established  her  position ' 
as  an  appathitta  daughter,  she  was  not 
entitled  to  any  share.  Mr.  Justice  Fox 
laid  down  in  that  case  that  the  plaintiff 
made  no  alternative  claim  upon  the  basis 
of  her  being  an  appathitta  daughter,  and 
that,  consequently,  he  did  not  think  it 
necessary  to  consider  what  her  rights  to 
share  in  the  inheritance  possibly  might  be, 
if  she  had  made  such  a  claim,  The  Court 
was  clearly  opposed  to  allowing  any  amend- 
ment. 

In  the  case  of  Maung  Tha  So  v.  Maung 
Lu  Pe  (3),  the  late  Sir  Maung  Kin  definite- 
ly held  that  a  plaintiff  who  sued  as  a 
kittima  son,  but  made  no  alternative  claim 
as  an  appathitta,  cannot  be  allowed  to 
make  the  alternative  claim  for  a  first  time 
in  appeal. 

That  decision  was  followed  by  a  Bench  ' 
of  the  late  Chief  Court  in  the  case  of  Shwe 
Kin  v.  Maung  Sin  (4).  In  that  case  the  ap- 
pellant's Counsel,  who  appeared  at  the  hear- 
ing of  the  appeal,  asked  to  be  allowed  to 
make  a  claim  as  the  children  of  an  appa- 
thitta daughter;  and  the  learned  Judge, 
after  referring  to  the  case  last  cited,  said 
that  he  had  no  reason  to  change  his  views 
on  that  point.  Mr.  Justice  Rigg  must  be 
presumed  to  have  concurred  in  this  view. 

We  were  next  referred  to  a  Single  Judge 
judgment  by  I<eiitmfrr.(-.  J.,'  in  Maung  Gye 
v,  Maung  Aun'j  /'//'*  •">  »  in  which  the  plaint- 
iff claimed  to  be  entitled  to  the  estate  as  a 
cousin  and  the  nearest  surviving  •  relation 

(1)  1  Ch.  T.  L.  C.  157. 

(2)  7  Bur.  L.  R.  295. 

(3  41  IncL  Gas.  749;  11  Bur.L.  T.  246. 
(4)  87  Ind.  Oas.  673;  10; L.  B.  R.  376.   . 
(8  85  Ind,  Cas,  28$;  3  R.  ,611  at  p.  669;  (1&25)  A.  I.  B, 
(RJ178; 


254 


feANtJ  MAL  V.  fARAS 


of  one  Ma  Pu.  The  defendant,  who  was  a 
more  distant  relation,  contended  that  he 
was  the  kittima  adopted  son  of  Ma  Pa. 
The  learned  Judge  said  : 

"The^learned  District  Judge,  has,  however, 
overlooked  the  fact  that  Maung  Gyi  is  a 
defendant,  and  that  in  that  case  it  is  not 
a  question  of  altering  the  cause  of  action 
in  the  suit.  The  cause  of  action  of  the 
plaintiff-respondent  remains  the  same  whe- 
ther the  defence  is  based  on  a  claim  to  a 
kittima  adoption  or  to  an  appathitta  adop- 
tion and  the  question  which  the  Court  has 
to  decide  is  whether  the  plaintiff  is  entitled 
to  relief  against  the  defendant.  Even  on  the 
admissions  of  the  plaintiff  in  his  evidence  in 
this  case,  it  is  apparent  that  the  plaintiff  had 
in  effect  recognized  Maung  Gyi  as  an  heir 
of  Ma  Pa  after  her  death  and  had  consent- 
ed to  Maung  Gyi  incurring  all  the  funeral 
expenses  and  mortgaging  the  house  if  neces- 
sary for  that  purpose.  It  is  clear,  therefore, 
that  it  would  be  most  inequitable  to  allow 
the  plaintiff  to  take  the  whole  estate  and  to 
deprive  the  defendant  of  his  right  as  heir 
which  is  shown  to  have  been  recognized 
even  on  the  admissions  of  the  plaintiff  in 
addition  to  depriving  the  defendant  of  all 
rights  to  re-imbursement  of  the  funeral  ex- 
penses, etc/1 

He  draws  a  distinction  between  the  case 
of  a  plaintiff  being  allowed,  at  the  last 
moment,  to  amend  his  plaint,  and  a  defend- 
ant being  allowed  to  amend  his  written 
statement.  He  also  found  that  there  were 
special  circumstances  in  that  case,  which 
made  it  equitable  to  allow  the  amendment 
prayed  for.  That  case  is  clearly  distinguish- 
able from  the  present  one. 

It  has  been  often  laid  down  that  the 
plaintiff  must  be  confined  to  the  case  that 
he  sets  up  in  his  pleadings,  or  to  a  case  which 
is  consistent  with  those  pleadings.  While 
the  right  of  amendment  has  been  largely 
increased  in  the  new  Code— and  amendment 
is  now  much  more  freely  granted— it  re- 
mains a  matter  for  discretion,  and  that  dis- 
cretion must  be  exercised  with  regard  to 
all  the  facts  and  circumstances  of  the  case. 

In  this  case,  the  plaintiff  deliberately 
chose  to  take  his  stand  on  the  allegation 
that  he  was  the  kittima  adopted  son.  He 
made  no  effort  to  set  up  any  other  claim, 
and  he  claimed  to  be  entitled  to  the  whole 
of  the  estate.  Having  gone  to  trial  on  that 
issue,  and  there  being  no  question  raised  of 
an  appathitta  adoption,  the  cross-examina- 
tion of  the  witnesses  for  the  plaintiff  ami 


[92 1.  0. 1926] 

examination  of  the  witnesses  for  the  defend- 
ants were  confined  to  that  claim. 

Moreover,  it  is  established — and  admitted 
— that  there  were  no  special  circumstances 
in  that  case  whatsoever;  and,  if  we  were  to 
allow  an  amendment,  and  remand  the  case 
to  the  Court  of  first  instance,  we  should 
practically  be  ordering  a  new  suit  to  be 
commenced  afresh  and  tried  from  the  be- 
ginning. 

There  is  ample  authority  for  holding  that 
the  causes  of  action,  on  which  the  claims 
to  be  a  kittima  or  an  appathitta  son  are 
based,  are  widely  different.  Different  con- 
siderations govern  the  question  of  these 
two  distinct  forms  of  adoption.  We  should 
not  only  be  allowing  the  plaintiff,  who 
has  deliberately  chosen  his  line  of  attack 
to  alter  his  claim  to  one  of  a  different 
character,  but  we  should  be  allowing  him  to 
do  so  as  a  last  hope,  when  he  has  entirely 
failed  to  establish  the  case  with  which  he 
came  to  Court. 

In  our  opinion,  therefore,  we  should  not 
permit  the  plaintiff  to  amend  his  pleadings 
now. 

This  appeal,  therefore,  fails;  the  decree 
of  the  Court  below  will  be  confirmed,  and 
the  appeal  dismissed  with  costs  -  f 

z.  K.  Appeal 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  1385 

OF  1921. 

July  21,  1924. 

Present : — Mr.  Justice  Zafar  AH  and 

Mr.  Justice  Martineau. 

BANU  MAL— JUDGMENT-DEBTOR — 

DEFENDANT— APPELLANT 

versus 

PARAS  RAM  AND  OTHERS— DECREE-HOLDERS 
— PLAINTIFFS — RESPONDENTS 

Civil  Procedure  Code  (Act  V  of  1008),  0.  XXXIV, 
rr.  !+,  5  —Composite  decree  for  sale  of  mortgaged  pro- 
perty and  realisation  of  decree  from  person  and  pro- 
perty of  judgment-debtor-— Absolute  decree,  whether 
necessary — Execution — Objection  not  taken,  effect  o/~ 
Application  for  sale,  effect  of. 

A  preliminary  decree  under  r.  4  of  0.  XXXIV  of 
the  0.  P.  0.  for  the  sale  of  mortgaged  property  cannot ' 
be  executed  unless  made  absolute  under  r.  5  of  the 
Order.  Rule  5,  however,  does  not  apply  to  a  decree 
which  does  not  conform  to  the  provisions  of  r.  4  of 
O.  XXXIV.  [p.  255,  col  2.] 

A  decree  directing  that  if  the  decretal  amount  is 
not  paid  within  a  certain  period,  the  decree  shall  be 
realised  by  the  salt  of  the  hypothecated  property 


I.  0. 1926] 


BAND  MAL  V.  PARAS  RAM. 


255 


in  case  that  is  not  sufficient,  from  the  person  and 
property  of  the  debtor,  is  not  a  preliminary  decree  for 
sale  under  r.  4  of  O.  XXXIV,  C.  P.  C  ,  and  is  capable 
of  execution,  fp.  255,  coi.  2.] 

Even  though  a  relief  may  not  have  been  granted 
by  the  decree,  yet  if  in  execution  proceedings  a  Court 
holds  that  a  party  is  entitled  to  such  relief  under  the 
decree,  it  is  not  open  to  the  parties  afterwards  to 
contend  that  no  such  relief  has  been  awarded  and  the 
matter  is  res  judicata  [p.  256,  cols.  1  &  2.] 

After  a  preliminary  decree  for  sale  has  been  pass- 
ed, an  application  by  the  decree-holder  for  sale  of  the 
property  may  be  taken  to  be  an  application  for  an 
order  absolute  for  sale.  [p.  256,  col.  S.J 

Miscellaneous  second  appeal  from  an 
order  of  the  District  Judge,  Ambala,  dated 
the  31st  March  1921,  reversing  that  of  the 
Senior  Sub- Judge,  Ambala,  dated  the  15th 
June  1920. 

Mr.  Shamair  Chand  and  Bakhshi  Tek 
Chand,  for  the  Appellant. 

Lalas  Jagan  Nath  and  Mehr  Chand 
Mahajan,  for  the  Respondents. 

JUDGMENT,— In  this  second  appeal 
from  an  order  in  appeal  of  the  learned 
District  Judge,  Ambala,  relating  to  an 
objection  to  the  execution  of  a  decree,  the 
questions  that  arise  for  determination 
are  :  — 

(1)  Was  the  decree  in  question  a  simple 
money-decree  or  a  preliminary  decree  under 
O.  XXXIV,  r.  4,   C.  P.   C.,  for  sale  of  the 
property  mortgaged  ? 

(2)  If  it  was  a  preliminary  decree  under 
0.  XXXIV*  r.  4,  and  was  as  such  incapable 
of  execution  unless  made  absolute  under 
O.  XXXIV,  r.  5,   was  the  judgment-debtor 
precluded  from  taking  the  objection  that  it 
could  not  be  executed  because  he  had  not 
taken    that    objection     on     the     previous 
applications  for  execution  ? 

(3)  As  the  judgment-debtor  took  no  objec- 
tion to  the  application  of  the  decree-holder 
for  sale  of  the  property  mortgaged,  and  as 
sale  thereof  was  ordered,  was  the  applica- 
tion thus  granted  tantamount  to  an  applica- 
tion for  an  order  absolute  for  sale  ? 

As  regards  (1)  there  can  be  no  manner  of 
doubt  that  neither  did  the  plaintiffs  ask  for 
a  decree  under  O.  XXXIV,  r.  4,  nor  did  the 
Trial  Court  (Sub- Judge,  Ambala)  pass  a  pre- 
liminary decree  in  .terms  of  O.  XXXIV,  r.  4, 
C,  P.  0.  As  pointed  out  by  the  learned 
District  Judge  the  plaintiffs'  prayer  in  the 
plaint  was  for  a  decree  for  the  money 
claimed  with  a  lien  on  the  property  hypothe- 
cated (ba  kafalatti-jaedad*i~marhuma)  and 
against  the  other  property  and  person  of 
the  defendant.  There  was  no  prayer  in  the 
plaint  for  Bale  of  the  land  mortgaged.  The 


defendant  did  not  deny  the  claim,  but 
wanted  to  pay  the  debt  by  instalments, 
The  Sub- Judge  did  not  allow  instalments 
and  ordered  as  below : — 

"I  allow  the  defendant  six  months  in 
which  to  pay  the  decree  ;  failing  which  the 
decree  shall  be  realised  in  the  first  instance 
by  the  sale  of  hypothecated  property.  If 
that  is  not  found  sufficient,  the  decree  shall 
be  realised  from  the  person  and  the  pro- 
perty of  the  debtor," 

The  decree  that  was  drawn  up  was  in  the 
terms  of  the  above  order  on  a  form  prescrib- 
ed for  simple  money-decrees.  Evidently 
this  decree  was  not  merely  a  preliminary 
decree  for  sale  of  mortgaged  property,  but 
it  was  what  is  called  a  composite  decree, 
i.  e.,  a  decree  for  sale  of  the  property  mort- 
gaged as  well  as  against  the  person  and 
other  property  of  the  mortgagor.  The  ques- 
tion is  what  rules  of  procedure  apply  to 
the  execution  of  a  decree  of  this  description. 
It  has  been  repeatedly  held  that  s.  89  of  the 
Transfer  of  Property  Act,  for  which 
0.  XXXIV,  r.  5,  has  been  substituted  does 
not  apply  to  a  consent-decree  in  a  suit  for 
sale  of  the  property  mortgaged  because 
such  decree  could  not  be  drawn  up  in 
accordance  with  s.  88  of  that  Act  or 
0.  XXXIV,  r.  5,  G.  P.  C.  The  same  princi- 
ple applies  by  analogy  to  a  composite  decree 
of  the  kind  passed  in  the  present  case,  and 
it  may  safely  be  affirmed  that  O.  XXXIV, 
r.  5,  cannot  apply  to  it  as  it  does  not  con- 
form to  O.  XXXIV,  r.  4. 

It  may  be  remarked  here  in  passing  that 
the  Madras  High  Court  held  in  Kommachi 
Kather  v.  Pakker  (1)  and  ag^in  in  Abdulla 
Sahib  v.  Oosman  Sahib  (2)  that  decree  of  the 
kind  in  question  is  a  simple  money-decree 
but  that  the  Calcutta  High  Court  took  a 
contrary  view  in  Kartick  Nath  Pandey  v. 
Jugger  Nath  Ram  Marwari  (3).  The  proposi- 
tion that  a  preliminary  decree  for  sale  of 
property  mortgaged  under  O.  XXXIV,  r.  4, 
C.  P.  C,,  cannot  be  executed  unless  made 
absolute  under  0.  XXXIV,  r.  5  is  unassail- 
able, and,  therefore,  the  authorities  cited  in 
support  of  it  need  not  be  referred  to.  But 
the  decree  in  the  present  case  was  beyond 
the  scope  of  0.  XXXIV,  r.  4,  because  it  was 
not  only  a  decree  for  sale  of  the  property 
hypothecated  but  also  a  decree  against  the 
person  as  well  as  other  property  of  the  judg- 
ment-debtor, 

8  28  M  m  7  M* L<  J>  66;  7  ^  Dec* (N<  s'}  75* 

(3)  27  0/285;  14  Ind,  Deo,  (N.  s.)  188, 


MAL  V.  tAfeAS 


1;  0.  lS2<Jj 


But  the  appeal  must  fail  on  another 
ground  also  granting  for  the  sake  of  argu- 
ment that  the  decree  in  question  is  covered 
by  0.  XXXIV,  r.  4.  The  judgment-debtor 
is  precluded  from  now  taking  the  objection 
that  it  is  incapable  of  execution  because 
he  did  not  take  that  objection  on  the  pre- 
vious applications  for  execution  thereof. 
The  decree  was  passed  on  the  19th  May 
1916  and  execution  proceedings  went  on 
from  1^17  to  1920  with  objections  and 
offers  to  pay  and  applications  for  limit  on 
the  part  of  the  judgment- debtor.  The 
present  objection  was  taken  for  the  first 
time  on  the  16th  February  1920.  The 
question  is  :  Was  the  judgment-debtor 
competent  to  raise  this  objection  at  that 
stage?  Precisely  this  very  question  arose 
before  a  Division  Bench  of  the  Madras 
High  Court  in  the  case  reported  as  Epoor 
Ramasamy  Keddy  v.  Kandadai  Ranga- 
manner  lyengar  (4)  and  was  answered  in 
the  negative  in  the  following  way:— "The 
next  question  is  whether  the  respondent  is 
entitled  to  execute  the  decree  at  all.  It  is 
contended  that  it  is  only  a  preliminary 
decree  and  that  a."<".>r«iinq:  to  the  decision 
of  the  Privy  Council  [Ashfaq  Husain  v. 
Gauri  Sahai  (5)]  which  has  been  followed 
by  Miller  and  Sadasiva  Aiyar,  JJ0  in 
Yemani  Chinna  Seshaya  v  Varanasi  Pepaya 
(6),  Benson  and  Sundara  Aiyar,  J  J.,  in  Raja 
Kumara  Venkata  Perumal  Raja  Bahadur  v. 
Audikesvalu  Reddi  (7)  a  preliminary  decree 
is  not  capable  of  execution  and  it  is  only 
the  decree  absolute  und^er  r.  5,  O.  XXXIV, 
that  can  be  executed.  In  this  case  it  is 
clear  that  no  decree  absolute  under  r.  5 
has  been  passed,  but  we  think  it  is  necessary 
to  decide  this  question,  because  this  conten- 
tion is  not  available  to  the  appellants.  On 
the  decree-holder's  application  for  the  exe- 
cution of  the  decree,  notice  was  issued  to 
the  judgment-debtors  (appellants)  and  an 
order  ^as  passed  directing  the  sale  of  the 
property;  no  objection  was  taken  to  the 
sale  on  this  ground.  It  has  been  repeatedly 
held  that  even  though  a  relief  may  not  have 
been  granted  by  the  decree,  yet  if  in  execu- 
tion proceedings  a  Court  holds  that  a  party 

(4)  23  lAd.  Gas.  390;  2G  M,    L.  J.  255;    15  M,  L.  T. 

(5)  9  Ind.  6as.*975;  33  A.  264;    15  C.  W.  N.  370;  8 
A.  L.  J.  332;  13  0.  &  J,  351;  9   M.  L.  T.  380;  13  Bom. 
L  R.  367;  4  Bur.  L,  T.  121;   21  H.  L.  J.  1140;  38  L  A. 
37;  (1911)  2  M.  W.  N.  177  (P.  0.). 

(6)  15  Ind.  Cfets,  732. 

(7)  17  lad,  Cae,  759;  23  M,  L,  J,  «75;   12  M,  L,  T, 
$59, 


is  entitled  to  sueli  relief  under  the  decree,  it 
is  not  open  to  the  parties  afterwards  to  con- 
tend that  no  such  relief  has  been  award- 
ed and  the  matter  is  res  judicata.  We  are, 
therefore,  of  opinion  that  in  this  case  it  is 
not  open  to  the  appellants  to  plead  that 
there  is  no  decree  under  which  the  pro- 
perties could  be  sold.  We  must*  therefore, 
disallow  this  contention  and  we  dismiss  the 
appeal  with  costs." 

The  learned  Counsel  for  the  appellant 
made  an  attempt  to  distinguish  the  above 
ruling  on  the  ground  that  a  notice  was 
issued  to  the  judgment-debtor  in  that  <jase 
to  show  cause  why  the  mortgaged  property 
should  not  be  sold,  while  in  the  present 
case  no  such  notice  was  issued  ;  but  he 
admitted  that  the  judgment-debtor  was 
aware  of  the  execution  proceedings  and 
took  part  therein  all  along,  Therefore  he 
had  full  notice  of  the  order  made  for  sale  of 
the  property,  and  as  he  did  not  object  to  it 
at  the  proper  time  he  could  not  be  allowed 
to  do  so  later  on.  The  excuse  that  he  did 
not  do  so  because  he  was  under  the  impres- 
sion that  the  decree  was  a  simple  money 
decree  can  be  of  no  avail. 

Further,  the  Madras  High  Court  has  held 
that  under  the  circumstances  stated  in  (3) 
above  the  application  for  sale  should  be 
taken  to  be  an  application  for  an  ordex 
absolute  for  sale— See  Appa  Rao  v.  Krishna 
Auuamjnr  (8),  which  was  followed  in  Veera 
Jic.'ldi  v,  Ramalinga  Mudaley  (9).  This  is 
another  way  of  looking  at  the  effect  of  the 
judgment- deb  tor's  omission  to  object  in 
time  to  the  decree-holder's  application  for 
sale  and  indicates  the  judicial  polity  that 
the  decree-holder  should  not  be  left  in  the 
lurch  when  in  consequence  of  the  judg- 
ment-debtor's own  conduct  he  has  allowed 
to  pass  the  period  prescribed  by  the  Statute 
of  Limitation  for  making  aa  application  for 
an  order  absolute  for  sale. 

In  all  the  reasons  given  above  the  appeal 
fails  and  is  dismissed  with  costs.  Counsel's 
lee  Rs.  100. 

%.  K.  Appeal  dismissed. 

(8)  25  M  537 

(9)  4  Ind.  Cas.  42;  6  M,  L,  T.  361, 


[92  I.  0.  1926]       COMMISSIONED  OF  INCOME  TAX  vt  LUCKNOW  ICE  ASSOCIATION. 


257 


OUDH  CHIEF  COURT. 

RfiF2RENCK  FOR    RULING  No.  1  OF  1925. 

December  7,  1925. 
Present: — Mr.  Justice  Hasan  and 

Mr.  Justice  Ashworth. 

D.  K.  STEWART,  COMMISSIONER  OF 

INCOME  TAX,  UNITED  PROVINCES 

versus 
THE  LUCKNO W  ICE  ASSOCIATION. 

Income  Tax  Act  (XI  of  1922\  ss.  3,  66— Selling 
association  of  several  firms  —  Association,  whether 
separate  firm  liable  to  assessment — Chief  Court  of 
Oudh,  whether  High  Court  for  purposes  of  s.  66— Oudh 
Courts  Act  (IV  of  1925),  s.  8—U,  P.  General  Clauses 
Act  (I  of  IQOlt),  s  It. 

Where  certain]  -,  *  •  •!,..  firms  by  means  of 
an  agreement  formed  a  belling  Association  to  prevent 
underselling  by  the  constituent  linns  and  lixed  a 
certain  rate  to  be  paid  by  the  Association  for  ice 
manufactured  by  the  constituent  firms  : 

Held,  that  the  Association  was  clearly  a  separate 
firm  within  the  meaning  of  s  3  of  the  Income  Tax  Act 
and  was  liable  to  assessment  of  income  tax  [p.  257, 
col.  2.] 

Per  Hasan,  J  —The  Chief  Court  of  Oudh  is  a  High 
Court  within  the  meaning  of  s.  66  of  the  Income 
Tax  Act.  [p.  -258,  col  1  ] 

Reference  under  s.  66  (2)  of  the  Income 
Tax  Acfc,  1922,  demanded  by  the  Lucknow 
Ice  Association. 

The  Government  Advocate,  for  the  Com- 
missioner of  Income  Tax. 

Mr.  Bisheshar  Nath  Srivastava  for  the  firm 
Messrs.  Ramchand  Gopaldas  and  others. 

ORDER. 

Hasan,  J. — This  is  a  reference  under 
s.  66,  sub-s.  (2)  of  the  Indian  Income  Tax 
Act,  of  1922,  by  the  Income  Tax  Commis- 
sioner of  the  United  Provinces  of  Agra  and 
Oudh.  The  question  of  law  which  the  Com- 
missioner has  referred  to  this  Court  for 
decision  is  stated  in  the  reference  as  fol- 
lows:—Was  the  Ice  Association  described 
in  para.  3  above  a  firm  within  the  meaning 
of  s.  3  of  the  Indian  Income  Tax  Act, 
whose  income,  profits  and  gains  are  liable  to 
Assessment  to  tax  under  the  said  Act, 

The  Commissioner  has  answered  this 
question  in  the  affirmative,  and  I  am  of  the 
opinion  that  his  answer  is  right. 

It  appears  that  on  the  15th  day  of  March 
1923,  an  agreement  was  made  and  eatered 
into  between  two  proprietors  of  two  ice 
factories,  and  three  managers  of  three  ice 
factories  all  situate  in  the  City  of  Lucknow, 
In  the  preamble  of  this  agreement  the  object 
of  Association  formed  thereby  was  stated 
to  be  the  promotion  and  protection  of  the 
trade  of  ice  business  and  of  facilities  to  the 
public,  and  also  the  economising  of  the 
working  of  such  manufacture  and  business, 

17 


The  Association  formed  under  this  agree- 
ment was  to  work  in  accordance  with  the 
terms  contained  therein  for  a  period  of 
two  years  from  1st  April  ]i*23  to  31st 
March  1925.  The  Association  thus  formed 
was  to  have  the  entire  control  over  the 
management  of  sales  and  -distribution  of 
the  profits  to  the  constituent  factories,  and 
the  proprietors  and  managers  of  these  facto- 
ries were  bound  to  assist  the  Association 
"in  making  the  work  easy  and  more  success* 
ful.n  The  parties  to  the  agreement  were 
to  manage  the  affairs  of  the  Association,  to 
fix  rates,  and  prices  and  adjust  accounts  and 
determine  other  matters  arising  out  of  the 
said  agreement.  On  behalf  of  the  Associa- 
tion and  under  para.  8  of  the  agreement, 
M.  Amir  Hasan  proprietor  of  one  of  the 
constituent  ice  factories,  was  to  work  as 
an  Honorary  Sale  Commissioner.  Rates  for 
the  sale  and  disposal  of  ice  were  to  be  fixed 
from  time  to  time  by  the  Association  and 
the  Sale  Commissioner  was  to  keep  the 
accounts,  and  was  provided  with  a  staff  to 
be  paid  by  the  Association.  Paragraph  19 
of  the  agreement  provides  for  the  dis- 
tribution of  the  sale-proceeds  of  the  ice 
amongst  the  constituent  factories  in  certain 
proportions.  On  an  interpretation  of  these 
terms  of  agreement,  I  am  clearly  of  opinion 
that  the  Association  formed  under  thia 
agreement,  is  a  firm  within  the  meaning  of 
s.  3  of  the  Indian  Income  Tax  Act  of  1922, 
and  as  such,  is  liable  to  assessment  under 
the  same  Act. 

The  reference  before  us  also  raises  a  pre* 
liminary  question  as  to  the  jurisdiction  of 
this  Court  to  entertain  this  reference.  In 
other  words,  the  question  is,  whether  this 
Court  is  a  High  Court  within  the  meaning 
of  s.  66  of  the  Indian  Income  Tax  Act  of 
1922.  Section  8  of  the  Oudh  Courts  Act, 
1925  runs  as  follows: — 

"The  Chief  Court  shall  be  deemed  for  the 
purposed  of  all  enactments  for  the  time  be- 
ing in  force  to  "be  the  highest  Civil  Court 
of  appeal  and  revision.11 

This  Court  is  the  Chief  Court  of  Oudh 
under  s.  3  of  the  Oudh  Courts  Act,  1925.  Sec- 
tion 4,  para,  21  of  the  General  Clauses  Act, 
190i,  United  Provinces  defines  High  Court 
as  follows: — 

.  "  'High  Court1  used  with  reference  to  civil 
proceedings,  shall  mean  the  highest  Civil 
Court  of  Appeal  in  the  part  of  the  United 
Provinces  in  which  the  Act  containing'  the 
expression  operates.11 
The  Oudh  Courts  Act  operates  in 


258 


NATHA  SINGH  t>.  SUNDER  SINGH, 


Province  of  Oudh  in  the  United  Provinces. 
I  am,  therefore,  of  opinion  that  the  effect  of 
the  two  enactements  is  to  constitute  this 
Court  a  High  Court  within  the  meaning  of 
B.  66  of  the  Indian  Income  Tax  Act,  1922. 

Ashworth,  J.  —  I  agree.  Certain 
manufacturing  firms  by  means  of  an  agree- 
ment formed  a 'Selling  Association  to  pre- 
vent under-selling  hy  the  constituent 
firms.  One  clause  in  the  agreement  provided 
for  an  article  manufactured  by  the  con- 
stituent firms  being  paid  for  at  a  fixed  rate 
by  the  Association.  It  is  alleged  in  argument 
that  heavy  losses  were  incurred  by  the  con- 
stituent firms  by  manufacturing  at  this  rate. 
In  my  opinion  the  Association  was  clearly 
a  separate  firm  within  the  meaning  of  s.  3 
of  the  Income  Tax  Act.  Reference  has  been 
made  in  a  form  which  does  not  require 
this  Court  to  decide  the  method  of  assess- 
ment, but  it  is  apparently  from  the  argu- 
ment of  Counsel  for  the  Association,  the 
method  that  the  Association  really  objects 
to.  There  does  not  appear  to  me  any  reason 
why  the  profits  of  the  association  should  be 
held  diminished  by  any  losses  of  the  in- 
dividual firms. 

By  the  Court.— The  answer  of  the 
Court  to  both  questions  asked  in  the 
reference  is  in  the  affirmative.  Having  regard 
to  the  provision  of  s.  66  (6),  it  is  ordered 
that  the  Association  shall  bear  the  costs  of 
this  reference, 

G.  H.  Answered  affirmatively. 


[92  I.  0. 1925 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  1115  OF  1921. 

April  15, 1925. 
Present;— Mr.  Justice  Martineau  and  Mr. 

Justice  Zafar  Ali. 

NATHA  SINGH  AND  OTHERS— DEFENDANTS 
— APPELLANTS 

versus 

SUNDER  SINGH  AND  OTHERS— PLAINTIFFS 
— RESPONDENTS. 

Pre-emption— Market-value,  determination  of— Evi- 
dence, absence  of-  Waiver— Refusal  to  purchase  at 
certain  sum— Sale  for  lesser  sum— Right,  whether  can 
be  asserted. 

In  a  pre-emption  case,  in  the  absence  of  satisfactory 
evidence  of  the  market  value  of  the  land  in  dispute, 
the  sum  actually  paid  may  be  taken  to  be  the  proper 
market  value,  [p.  259,  col.  1.] 

Where  a  pre-emptor  refuses  to  purchase  the  pro- 
perty offered  for  sale  at  a  certain  price,  he  19  not 


estopped  from  asserting  his  right  of  pre-emption  if 
the  property  is  subsequently  sold  for  a  lesser  sum. 
[ibid.] 

First  appeal  from  a  decree  of  the  Senior 
Subordinate  Judge,  Seikhupura  at  Gujran- 
wala,  dated  the  14th  March  1921. 

Dr.  Nand  Lai  and  Lala  Amolak  Ham 
Kapur,  for  the  Appellants. 

Lala  Badri  Nath  and  Diwan  Mehr  Chand^ 
for  the  Respondents. 

JUDGMENT.— Barkat  Ram,  defen- 
dant No.  1,  sold  the  land  in  suit  to  defend- 
ants Nos.  2  and  3  for  Rs.  12,000.  The  plaint- 
iffs sue  for  pre-emption,  alleging  them- 
selves to  be  collaterals  of  the  vendor,  and 
have  been  given  a  decree  subject  to  the 
payment  of  Rs.  12,024,  the  additional  Rs.  24 
having  been  allowed  for  improvement*  to 
well- gear.  Both  parties  have  appealed. 

The  evidence  of  Atma  Ram  P.  W.  No.  1 
and  Pala  Mai  D.  W.  No  3,  who  are  both  first 
cousins  of  the  vendor,  proves  that  the  plaint- 
iffs are  the  latter 's  second  cousins.  Their 
statements  are  supported  by  an  extract  from 
the  settlement  pedigree  table  which  is  on 
the  record,  and  are  unrebutted.  We  agree 
with  the  lower  Court's  finding  that  the 
plaintiffs  are  collaterals  of  the  vendor  and 
have  a  right  of  pre-emption  superior  to  that 
of  the  vendees. 

The  next  question  is  whether  the  full 
price  entered  in  the  sale-deed  was  paid, 
and  the  main  dispute  relates  to  an  item  of 
Rs.  1,400  alleged  to  have  been  paid  by  the 
vendees  to  Man  gal  Singh,  who  is  said  to 
have  been  a  creditor  of  the  vendor  Barkat 
Ram.  Mangal  Singh  is  the  vendor's  sister's 
son,  and  the  bahi  which  he  produces  to 
prove  the  debt  which  he  says  Barkat  Ram 
owed  him  is  one  in  which  an  entry  could  be 
made  at  any  time,  as  he  keeps  no  cash  book 
or  daybook.  The  receipt  that  he  gave  to 
the  vendees  for  the  Rs.  1,400  is  unattested. 
He  lives  about  b  kos  from  the  vendee's 
village,  but  it  is  alleged  that  when  he  went 
there  to  ask  Barkat  Ram  for  payment  the 
vendees  undertook  in  writing  to  pay  the 
money  for  Barkat  Ram,  and  that  they  paid 
it  about  a  month  later.  The  written  under- 
taking which  the  vendees  are  said  to  have 
given  is  not  on  the  record,  although  it  was 
produced  before  the  lower  Court.  It  is 
peculiar  that  the  receipt  for  the  Rs.  1,400 
bears  date  the  2nd  Po/i,  which  was  one  day 
before  the  execution  of  the  sale-deed.  The 
vendees  themselves  have  not  gone  into  the 
witness-box,  and  we  regard  the  evidence  of 
Mangal  Singh  as  to  the  debt  and  the  pay* 


[92  L  0. 1928] 


KAtfSHI  RAM  V,  PJUBH  DIAL  ARMN  DASS  &  CO. 


259 


ment  of  Rs.  1,400  with  suspicion,  and  are 
,not  satisfied  that  any  such  payment  was 
made.  We  have  no  doubt  that  the  remain- 
ing sum  of  Rs.  10,600  was  paid.  There  is 
no  satisfactory  evidence  of  the  market- value 
of  the  land,  and  Rs.  10,t)00  the  sum  actual- 
ly paid,  may  be  taken  to  be  the  proper 
value. 

Evidence  was  given  by  the  vendees  to 
prove  that  the  land  had  been  offered  to  the 
plaintiffs  and  that  they  had  refused  to  buy 
it  and  had  thus  waived  their  right,  but  as 
the  evidence  is  to  the  effect  that  Barkat 
Ram  demanded  Rs.  12,000,  for  the  land,  and 
we  have  found  that  the  market- value  was 
much  less,  the  plea  of  waiver  has  no  force. 

There  is  no  dispute  about  the  item  of 
Rs.  24,  allowed  by  the  lower  Court  for  im- 
provements. 

We  accept  the  plaintiffs'  appeal  (No.  1437 
of  1921)  and  alter  the  decree  to  one  for 
possession  of  the  land  in  suit  on  payment  of 
Rs.  10,624.  It  is  not  necessary  to  fix  a  date 
for  payment  as  the  amount  has  already 
been  deposited.  The  defendant-vendees 
will  pay  the  plaintiffs'  costs  in  both  Courts. 

The  defendants'  appeal  (No.  1115  of  1921) 
is  dismissed  with  cost. 

Plaintiffs'  appeal  accepted 

z,  ic.         and  defendants'  appeal  dismissed. 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  FIRST  APPEAL  No. 

OP  1925. 
June  1,  1925. 

Present : — Mr.  Justice  Zafar  AH. 
KAN8HI  RAM — DEFENDANT — APPELLANT 

versus 
FIRM  PRABH  DIAL  ARJAN  DASS  &  Co. 

— RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  ss.  tft  Itf, 
0.  XXXIX,  rr.  1,  2— Specific  Relief  Act  (I  of  1877), 
as.  5J+,  55 — Execution  of  decree — Application  against 
surety — Fraud,  plea  of,  whether  can  be  taken — 
Injunction  restraining  Court  from  executing  decree, 
whether  can  be  granted—Subordinate  Courts,  power 
of. 

Where  an  application  is  made  to  execute  a  decree 
against  a  surety,  the  surety  is  a  party  within  the 
meaning  of  s.  47  of  the  C.  P.  0M  and  it  is  open  to  the 
surety  to  raise  a  plea  of  fraud  before  the  Executing 
Court,  [p.  259,  col  2.] 

A  subordinate  Court  has  no  power  under  the  C.  P. 
0.  or  any  other  statutory  enactment  to  restrain 
another  Court  by  an  injunction  from  executing  a 
Decree,  [ibid,] 


'Miscellaneous  first  appeal  from  an  order 
of  the  Senior  Sub-Judge,  Amritsar,  dated 
the  3rd  March  1925. 

Lala  Badn  Dast  R  B ,  for  the  Appellant, 

Lala  Fakir  Chand,  for  the  Respondent. 

JUDGMENT.--The  question  for  de- 
termination in  this  miscellaneous  appeal  is 
whether  the  Sub-Judge,  Third  Class,  before 
whom  a  suit  is  pending  for  a  declaration 
that  a  security  bond  for  stay  of  execution 
of  a  decree  was  given  under  fraud  and  was, 
therefore,  unenforceable,  can  issue  an  injunc- 
tion to  the  Senior  Sub- Judge,  First  Class, 
who  is  executing  the  decree  against  the 
surety  for  stay  of  execution  pending  deci- 
sion of  the  said  suit  by  the  surety.  The 
facts  are  briefly  as  below  : — 

An  ex  parte  decree  for  Rs.  12,990  and 
costs  was  passed  against  Hira  Lai  and 
others,  and  the  decree-holders  took  out  ex* 
ecution  of  the  same.  The  judgment-debtors 
then  applied  to  have  that  decree  set  aside 
and  also  for  stay  of  execution.  This  was 
allowed  on  their  furnishing  security  for 
payment  of  the  decretal  amount  if  the  ex 
parte  decree  were  not  set  aside.  The  per- 
sons who  gave  the  security  bond  were 
Kanshi  Ram  and  Devi  Chand.  The  ex 
parte  decree  was  not  set  aside  and  was 
eventually  affirmed  by  the  High  Court* 
The  decree-holders  proceeded  to  execute  it 
against  the  judgment-debtors  as  well  as  the 
sureties,  and  on  their  application  the  Execut- 
ing Court  proceeded  against  the  persons  of 
the  surety,  Kanshi  Ram  and  twice  ordered 
his  ariest.  Each  time  Kanshi  Ram  appeal- 
ed to  the  High  Court  against  that  order, 
and  as  his  last  appeal  was  dismissed  he 
filed  the  declaratory  suit  in  question.  The 
plea  of  fraud  was  never  raised  in  the  exe- 
cution proceedings,  and  it  is  a  question 
whether  he  could  bring  a  separate  suit  to 
establish  fraud.  A  surety  by  virtue  of  s.  145, 
C.  P.  C.,  is  a  party  within  the  meaning  of 
s.  47,  C.  P.  C.  and  a  plea  of  this  nature 
could  be  raised  before  the  Executing  Court. 
But  this  is  by  the  way.  The  real  point  is 
that  the  Court  in  which  the  suit  was  insti- 
tuted had  no  power  under  the  C.  P.  C.  or 
any  other  statutory  enactment  to  restrain 
the  Executing  Court  by  an  injunction  from 
executing  the  decree. 

Only  a  chartered  High  Court  has  in- 
herent powers  to  issue  injunctions  of  this 
nature  in  certain  cases,  but  other  Courts 
do  not  possess  any  such  powers,  vide  Rash 
Behary  Dey  v.  Bhowani  Churn  Bhose  (1) 
(1)  34  C.  07, 


260 


MOIUMDI  BEOAIi  t?,  TUFAIL  HASAN, 


[92  I,  0. 1926] 


and  Mungle  Chand  v,  Gopal  Ram  (2).  The 
Executing  Court  was,  therefoie,  competent 
to  refuse  to  stay  proceedings  and  this  appeal 
§8  against  its  order  must  fail  and  I  dismiss 
it  with  costs, 

It  may  be  noted  here  that  copy  of  the 
plaint  produced  by  Mr.  Fakir  Chand  shows 
that  the  surety's  suit  is  to  have  the  decree 
itself  decreed  void, 

2.  K.  Appeal  dismissed. 

(2)  34  0, 101. 


ALLAHABAD  HIGH  COURT. 

FIKBT  APPEAL  FROM  ORDER  No.  10  OF  1925. 

May  26, 1925* 
Present : — Mr.-  Justice  Sulaimau  and 

Mr.  Justice  Daniels. 

Uusammat  MOHAMDI  BEGAM— DEFEND- 
ANT— APPELLANT 

versus 

TUFAIL  HASAN-PLAINTIFF— 
RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  77,  0, 
XXXIV,  r.  S— Redemption  mit— Decree  based  on  com- 
promise—Default in  payment— Second  $mt  -for  re- 
fomption,  whether  maintainable. 

A  decree  passed  in  a  redemption  suit  on  the  basis 
of  a  compromise  provided  that  on  payment  of  a 
certain  sum  to  the  defendant  within  one  month  of 
the  date  of  the  compromise  the  plaintiff  would  be 
entitled  to  get  the  property  redeemed  and  to  be  put 
in  possession  and  that  after  the  expiry  of  the  fixed 
period  he  would  be  entitled  to  execute  the  decree  on 
payment  of  the  sum  mentioned  in  the  decree.  Plaint- 
iff failed  to  pay  the  amount  within  the  time  mentioned 
la  the  decree  and  failed  to  apply  for  execution  of  the 
decree  within  three  years  of  its  date.  He  subsequent- 
ly brought  a  second  suit  for  redemption  of  the  same 
property • 

Held,  that  inasmuch  as  the  first  decree  did  not 
provide  that  the  plaintiff's  right  to  redeem  was  to  be 
extinguished  absolutely  in  case  of  default  of  payment 
he  was  not  prevented  from  bringing  a  second  suit  for 
redemption  and  that  the  defendant  was  still  amoit- 
gagee  and  had  not  become  absolute  proprietor  of  the 
property. 

Hari  Ram  v.  Indraj,  69  Ind.  Oas  167;  44  A.  730,  20 
A.  L.  J.  631;  (1922)  A.  I.  K.  (A.)  377;  9  O  &  A.  L  R. 
123  and  Arura  v.  Bur  Singh,  84  Ind.  Cas.  67;  5  L.  371; 
(1925)  A.  I.  K.  (L.)  31,  relied  on. 

First  appeal  from  an  order  of  the  Sub- 
ordinate Judge,  Moradabad,  dated  the  5th 
September  1924. 

Mr.  Baleshwari  Prasad,  for  the  Appellant. 
Mr.  Mushtaq  Ahmad.lor  the  Respondent. 
.  JUDGMENT.— This  is  a  defendant's 
appeal  arising  out  of  a  suit  for  redemption, 
It  appears  that  on  a  previous  occasion 
the  plain  US  instituted  a  suit  for  redemp- 


tion of  this  very  mortgage  and  obtain 
ed  a  compromise  decree  in  December 
1916.  The  deciee  as  framed  was  not  in 
accordance  with  the  compromise  and  ^as 
accordingly  subsequently  corrected  in  April 
1924.  The  amended  decree  stood  as  fol- 
lows : 

"On  payment  of  Rs.  225  to  the  defendant 
within  one  month  of  the  date?  of  the  compro- 
mise the  plaintiff  would  be   entitled  to  get 
the  property  redeemed  and  put  in  posses- 
sion but  after  the  expiry  of  the  fixed  period 
he  will  be  entitled  to  execute  his  decree  on 
payment  of  Rs.  225.  Parties  shall  bear  their 
own  costs,"    The  plaintiff  failed  to  pay  the 
amount  in  time  and  failed    to  apply    for 
execution  within  three  years.    He  however 
has  brought  a  second  suit  for  redemption  of 
that  property.  The  Trial  Court  dismissed  the 
suit  holding  that  the  claim  was  barred  by 
the  provisions  of  s.  11,  C.  P.  C.    On  appeal 
the    learned  Subordinate  Judge  has  taken 
the  contrary  view  and  remanded  the  case 
for  trial  of  the  other  points  involved  in  the 
case.    In  our  opinion  the  view  taken  by  the 
lower  Appellate  Court  is  correct.    When  it 
is  borne  in  mind  that  the  original  mortgage 
deed  was  a  usufructuary  mortgage  a  suit 
for  redemption  of  that  mortgage  in  spite  of  a 
default  of  payment  of  the  mortgage  money 
within  the  time  fixed  can  be  brought.    If 
there  had  been  no  compromise  the  proper 
course  would  have  been  that  the  property 
would  be  sold    and  the  mortgage  money 
realised  thereby.    By  mere  lapse  of  the  time 
fixed,    the    mortgagee   does    not     become 
the  absolute  proprietor  of  the   martgaged 
property.    The  case  however  was  compro- 
mised and  the  decree  was  passed  in  terms 
of  the  compromise.    The  compromise  no- 
where expressly  stated  that  in  default  of  the 
payment  of  Rs.  225  within  one  month  the 
plaintiff's  right    to  redeem  would  be    ex- 
tinguished or  that  his    exclusive  remedy 
would  be  to  apply  for  execution.    We  may 
note  that  the  decree  as  originally  framed 
bore  a  clause  that  in  default  of  payment  his 
right  to  redeem  would  be  extinguish^  j,  but 
the  Court  subsequently  corrected  this,  hold- 
ing that  it  waa  not  in  accordarce  with  the 
compromise.  It  seems  to  us  that  when  under 
the  compromise  the  parties  did  not  agree  that 
his  right  to  redeem  would  be  extinguished 
absolutely  he  is  not  prevented  from  bring- 
ing a  second  suit  for  redemption,  and  the 
mortgagee  is  still  a  mortgagee  and  has  not 
become  the  absolute  proprietor  of  the  pro*, 
perty,  In  support  of  our  view  we  may  refef 


*    [92  I.  G.  1928J  RAM  LABHAYA  V.  KAftTAB  BIHuH. 

to  the  case  of  Hari  Ram  v.  Indraj  (1)  which     timated  to  the  parties 

has    been  followed    by  the   Punjab  High     against  Budh6  Khan  had  abated. 

Court  in  the  case  of  Arura  v.   Bur  Singh 


201 
that  the  appeal  as 


We  accordingly  dismiss  this  appeal  with 
coats  including  fees  on  the  higher  scale. 
z.  K.  Appeal  dismissed. 

(1)  69Ind.   Oa«3.  167;  44    A.  730;    20  A.  L.  J.    63]; 
(1922)  A.  I   R    (A.)  377;  9  0.  &  A.  L  R.  123. 

(2)  84  Ind.  Oas.  67;   5  L  371;   (1925)  A.   I.  R.  (L.) 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  2141  OF  1924. 

July  1,  1925. 

Present: — Mr.  Justice  Jai  Lai. 

RAM  LABHAYA  AND  OTHERS— DEFENDANTS 

— APPELLANTS 

versus 

KARTAR  SINGH  AND  OTHERS -PLAINTIFFS 

AND  KEvSAR  MAL  AND  OTHERS— DEFENDANTS 

— RESPONDENTS. 

Mortyaqe — Redemption  by  one  of  several  mortgagors 
—Civil  Procedure  Code  (Act  V  of  1008),  0.  XX.II,  r.  k 
— Death  of  pro  forma  respondent— Tjeyal  repre- 
sentatives not  brought  on  record — Abatement,  extent 

of 

One  of  several  mortgagors  is  entitled  to  redeem  the 
entire  mortgage  and  by  doing  ao  he  steps  into  the 
shoes  of  thr}  mortgagee  in  respect  of  the  shares  of  the 
othsr  mortgagors  |_p.  261,  col  2  ] 

Where  a  pro  forma  respondent  dies  and  his  legal 
repreasntatives  arc  not  brought  upon  the  record 
within  the  prescribed  porio'l,  the  abatement  of  the 
appeal  as  against  the  deemed  respondent  does  not 
result  in  tlie  abatement  of  the  appeal  as  a  whole, 
[p.  262,  col.  L] 

Sscond  appeal  from  a  decree  of  the 
District  Judge,  Attock  at  Oampbellpore, 
dated  the  25th  April  1924,  affirming  that  of 
the.Subordinate  Judge,  Fourth  Class,  Pindi- 
gheb,  District  Attock. 

Dr.  Nand  Lai,  for  the  Appellants. 

Mr.  M.  S.  Bhagat,  for  the  Respondents. 

JUDGMENT, -A preliminaryobjection 
was  taken  on  behalf  of  the  respondents 
that  Budhe  Khan  respondent  died  on  the 
1-Uh  of  February  1925  and  no  legal  repre- 
sentatives havingbeenbrought  on  the  record 
in  his  place  within  the  prescribed  time  the 
appeal  abated  as  against  him.  On  behalf 
of  the  appellant  an  application  was  made 
on  the  13th  of  June  praying  that  certain 
persons  be  substituted  as  legal  represent- 
atives of  Budhe  Khan.  An  affidavit  was 
filed  explaining  the  delay  in  presenting  the 
application.  It  was  alleged  that  the  appel- 
lants did  not  know  of  the  death  of  the  res- 
pondent. In  my  opinion  there  was  no 
sufficient  ground  for  extension  of  the  ordi- 
nary period  of  limitation.  I,  therefore,  iu- 


The  learned  Counsel  for  the  respondents 
then  contended  that  the  whole  appeal  had 
abated.  In  order  to  understand  this  ob- 
jection it  is  necessary  to  state  the  facts  of 
this  case.  The  land  in  suit  was  in  posses- 
sion of  a  muqarridar.  On  his  death  without 
an  heir  it  reverted  to  the  proprietary  body 
of  the  village.  The  deceased  muqarridar 
had  mortgaged  this  land  with  defendants 
Nos.  1  to  27.  The  plaintiffs  are  two  of  the 
proprietary  body.  They  instituted  this  suit 
for  the  redemption  of  the  mortgage  and 
impleaded^defendants  Nos.  28 — 51,  the  other 
proprietors  of  the  village  as  pro  forma  de- 
fendants. Budhe  Khan,  deceased,  was  one 
of  the  pro  forma  defendants.  The  suit  was 
decreed  by  the  Trial  Court.  An  appeal  by  the 
inor!  upper  defendants  has  been  dismissed  by 
tho  District  Judge  on  the  ground  that  one 
of  the  pro  -forma  defendants  was  not  im- 
pleaded  or  represented  before  him.  The 
mortgagees  appeal  to  this  Court.  It  appears 
that  the  plaintiffs  are  the  owners  of  a  very 
large  share  in  the  land  in  suit.  The  ques- 
tion, therefore,  is  whether  a  few  of  the  mort- 
gagors can  redeem  the  entire  mortgage. 
This  was  not  a  suit  by  the  plaintiff  to 
redeem  only  his  share  of  the  mortgaged 
property.  In  my  opinion  one  of  the  mort- 
gagors is  entitled  to  redeem  the  entire  mort- 
gage, and  by  doing  so  he  steps  into  the  shoes 
of  the  mortgagee  in  respect  of  the  shares  of 
the  other  m';M  wur  -r-.  In  this  case  owing  to 
the  death  of  muqarridar  all  the  proprietors 
became  mortgagors. 

The  learned  Counsel  for  the  respondents 
argued  that  the  proprietors  are  more  like 
heirs  of  a  deceased  person  and  that  a  few 
of  a  number  of  heirs  are  not  competent  to 
sue  in  respect  of  a  cause  of  action  which 
vested  in  the  deceased.  In  my  opinion  this 
analogy  does  not  apply.  The  plaintiffs  in 
this  case  cannot  be  called  the  heirs  of  the 
deceased  muqarridar.  They  became  co- 
owners  of  the  land  bv  virtue  of  reversion. 
They  are,  therefore,  the  owners  of  the  land 
in  whom  the  equity  of  redemption  vests. 

The  matter  can  be  looked  at  from  another 
point  of  view.  It  was  contended  that  the 
integrity  of  the  mortgage  cannot  be  broken 
except  under  certain  circumstances.  It  was 
admitted  that  a  mortgagee  can  allow  partial 
redemption  of  a  mortgage.  The  plaintiffs 
in  this  case  are  the  mortgagors  and  the 
contesting  defendants  are  the  mortgagees. 
They  are  the  appellants  before  me  and  they 


262 


JAHANQIR  V,  RAM  HARAKH. 


[92  I.  0.  1928j 


have  allowed  their  appeal  to  abate  against 
one  of  the  respondents.  Supposing  a  decree 
had  been  given  against  them  in  favour  of 
a  number  of  mortgagors  jointly,  I  think  it 
was  open  to  them  to  abandon  their  appeal 
or  to  compromise  the  case  against  some  of 
the  mortgagors  and  to  contest  the  right  of 
others  to  redeem.  The  practical  effect  of 
the  omission  of  the  appellants  to  bring  on 
record  the  legal  representatives  of  Budhe 
Khan  is  the  same. 

Moreover,  Budhe  Khan  was  merely  a  pro 
forma  defendant  and  the  abatement  of  the 
appeal  as  against  him  does  not  result  in  the 
abatement  of  the  appeal  as  a  whole  I, 
therefore,  hold  that  the  appeal  does  not 
abate.  This  practically  disposes  of  this 
appeal  on  the  merits  also,  because  the  appeal 
by  the  mortgagees  defendants  has  been  dis- 
missed by  the  learned  District  Judge  on 
the  ground  that  one  of  the  pro  forma  defend- 
ants, Nawab,  had  sold  his  rights  to  one 
Alam  Sher  and  on  the  plaintiffs'  application 
Alam  Sher,  was  made  a  defendant  in  place 
of  Nawab.  Nawab  subsequently  died,  but 
Nawab's  heirs  were  not  made  respondents 
by  the  appellants  in  the  District  Judge's 
Court  nor  was  Alam  Sher  made  a  respond- 
ent. The  Court  ordered  that  Alam  Sher 
should  be  joined.  The  appellants  not  hav- 
ing complied  with  these  orders  the  appeal 
was  dismissed.  It  is  admitted  by  the  learn- 
ed Counsel  for  the  respondents  that  if  Alam 
Sher  was  not  a  necessary  party  to  the  appeal 
then  the  order  of  the  learned  District  Judge 
could  not  be  sustained.  Por  reasons  already 

fiven  I  hold  that  none  of  the  pro  forma 
efendants  were  a  necessary  party  to  the 
appeal  and,  therefore,  accepting  this  appeal 
I  remand  the  case  to  the  learned  District 
Judge  for  decision  on  the  merits.  The 
Court-fee  on  the  memorandum  of  appeal 
will  be  refunded  to  the  appellants.  The 
other  costs  will  abide  the  result. 

z.  K.  Appeal  accepted. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  80  OP  1925. 

December  9,  1925. 

Present:  —  Mr.  Justice  Raza. 

JAHANOIR  —  DEFENDANT  —  APPELLANT 

versus 
RAM  HARAKH  AND  OTHERS—  PLAINTIFFS 


Mortgage—Grove  planted  by  mortgagee—  Accession- 
Bight  of  mortgagor  to  grove. 


Where  a  mortgagee  in  possession,  without  tho 
consent  of  the  mortgagor,  plants  a  grove  which  is  not 
necessary  for  the  preservation  of  the  property  and  of 
which  separate  possession  is  not  possible,  the  mort- 
gagor is  entitled  to  possession  of  the  grove  un- 
conditionally. 

Zubeda  Bibi  v.  Shto  Charan,  2*2  A.  83  at  p.  85;  A. 
W.  N.  (1899)  189;  9  Ind.  Dec.  (N  s.)  1085,  referred  to.  ^ 

Appeal  from  a  decree  of  the  Subordi- 
nate Judge,  Partabgarh,  dated  the  31str 
October  1924,  confirming  that  of  the  Munsif, 
Partabgarh,  dated  the  31st  July  1923. 

Messrs.  Suraj  Prasad  Khandelwal  and 
Radha  Krishna,  for  the  Appellant. 

Mr.  H,  D,  Chandra,  for  the  Respondents. 

JUDGMENT.— This  is  a  defendant's 
appeal  arising  out  of  a  redemption  suit, 
The  facts  of  the  case  are  as  follows  :— 

One  Durga  Singh  mortgaged  grove 
No.  719  in  Sahjanpur  District  Partabgarh 
to  Jahangir  (appellant),  with  possession, 
for  Rs.  25  in  or  obout  1904.  Durga  Singh 
died  in  or  about  1912  leaving  Saraoj it  Singh 
and  Bhagwant  Singh  (defendants  Nos.  2 
and  3)  as  his  heirs  The  plaintiff  Ram 
Harakh  purchased  the  equity  of  redemp- 
tion from  the  defendants  Nos.  2  and  3  on 
30th  August  1922  and  instituted  the  present 
suit  in  December  1922  against  Jahangir 
impleading  the  defendants  Nos.  2  and  3 
abo.  The  claim  was  decreed  by  the  first 
Court  on  the  31st  July  1923.  That  decree 
was  affirmed  by  the  lower  Appellate  Court 
on  the  31st  October  1924.  The  mortgagee, 
defendant  No.  1,  has  come  to  this  Court  in 
second  appeal  coniending  that  the  lower 
Courts  were  wrong  in  not  allowing  the 
price  and  cost  of  8u  new  trees  planted  by 
him  in  the  grove  during  the  continuance  of 
the  mortgage. 

It  is  admitted  that  18  old  trees  still 
stand  in  the  grove.  It  is  neither  alleged 
nor  shown  that  the  plot  lost  the  character  of 
a  grove  at  any  time.  The  new  trees  in 
dispute  are  accession  to  the  mortgaged 
property.  It  has  been  found  that  separate 
possession  and  enjoyment  of  the  grove  is 
not  possible  without  detriment  to  the 
principal  property  and  that  the  planting  of 
the  new  trees  was  not  necessary  to  preserve 
the  mortgaged  property  from  destruction, 
forfeiture  or  sale  and  that  the  new  trees 
were  not  planted  with  the  consent  of  the 
mortgagor.  Where  a  mortgagee  in  posses- 
sion planted  a  grove  without  the  consent 
of  the  mortgagor,  which  was  not  necessary 
for  the  preservation  of  the  property  and  of 
which  separate  possession  was  not  possible, 
it  was  held  that  the  mortgagor  was  entitled 


IBRAHIM  V.  SHAH  MAHOMED. 


(92  I.  0,  1926J 

to  possession  of  the  grove  unconditionally 
[ZubedaBibiv.Sheo  Cftaran(l)]  Ishouldlike 
to  note  also  that  the  defendant  No.  1  (mort- 
gagee) had  not  raised  the  plea  in  question 
in  the  written-statement  which  he  had 
filed  in  the  first  Court,  I  fail  to  understand 
how  and  why  he  or  his  legal  adviser  was 
allowed  to  raise  the  plea  in  question  in  the 
course  of  arguments  in  the  lower  Courts. 
Upon  the  findings  of  the  lower  Court 
the  mortgagor  must  be  held  entitled  as 
against  the  mortgagee  to  the  accession  in 
question. 

The  appeal  fails  and  must  be  dismissed. 
I  dismiss  the  appeal  with  costs  and  order 
the  appellant  to  pay  the  cost  of  the  contest- 
ing respondents. 

G.  H.  Appeal  dismissed. 

(1)  22  A.  83  at  p.  85;  A,  W.  N.  (1899)  189;  9  Ind.  Dec. 
(N.  s)  1085. 


263 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1242  OP  1924. 

January  5,  1925. 
Present: — Mr.  Justice  Harrison. 
IBRAHIM  ANTD  OTHERS— DEPENDANTS—- 
APPELLANTS 

versus 
SHAH  MAHOMED— PLAINTIFF  AND  OTHERS 

DEFENDANTS— RESPONDENTS. 
Custom— Alienation—  Necessity— Marriage  of  child- 
ren— Enquiry,  scope  of. 

Where  the  necessity  stated  for  an  alienation  of 
ancestral  land  by  a  village  proprietor  is  tha  marriage 
of  children,  and  this  is  also  spoken  to  by  the  lambar- 
dai\  who  attests  the  sale-deed,  and  there  are,  as  a 
matter  of  fact,  several  young  children,  one  of  whom 
is  approaching  marriageable  age,  the  vendee  is  not 
bound  to  make  any  further  enquiry  as  to  whether 
any  actual  steps  to  make  arrangements  for  marriages 
have  been  taken  or  not. 

Second  appeal  against  a  decree  of  the 
District  Judge,  Juilundur,  dated  the  5th 
March  1924,  modifyng  that  of  the  First  Class 
Sab-Judge,  Jullunder,  dated  the  31st  Oc- 
tober 192J. 

Lala  Mehr  Chand  Mahajan,  for  the  Ap- 
pellants. 

Sheikh  Niaz  Mahommed,  for  the  Respond- 
ents. . 

JUDGMENT.— This  suit  was  brought 
by  the  son  of  a  vendor  for  the  usual  de- 
claration. The  amount  of  consideration  was 
shown  in  the  deed  as  Rs.  2,600,  out  of 
which  Rs.  1,300  were  on  account  of  previous 
mortgages  and  this  amount  was  not  con- 


tested before  the  District  Judge.  The  only 
question,  therefore,  was  with  regard  to  the 
necessity  for  the  balance  of  Rs.  1,300,  which 
was  paid  in  full  before  the  Sub-Registrar. 
The  entry  in  the  deed  was  that  the  money 
was  required  for  the  marriages  of  the 
vendor's  children,  etc.  The  Trial  Court 
has  held  that  the  vendee  had  sufficient 
reasons  to  suppose  that  the  money  was  so 
required,  and  the  fact  that  the  vendor  had 
five  unmarried  children,  the  eldest  of  which 
a  boy  of  14  was  approaching  marriageable 
age,  was  a  sufficient  reason  for  his  believing 
the  story  told  him,  and  has  dismissed  the 
suit  in  toto. 

The  learned  District  Judge  has  held  that 
the  evidence  regarding  necessity  for  this* 
sum  is  wholly  insufficient,  that  it  was  for  the 
alienee  to  prove  that  there  was  such  neces- 
sity, and  that  he  should  have  satisfied  him- 
self beyond  all  reasonable  doubt  that  the 
money  was  actually  required  for  the  mar- 
riages, and  that  the  absence  of  any  evidence 
as  to  there  having  actually  been  a  betrothal  ' 
or  any  sort  of  preparations  for  the  marriage 
shows  that  the  vendee  did  not  make  suffi- 
cient enquiry,  that  necessity  is  not  estab- 
lished for  this  item,  and  that  only  the  sum 
required  for  the  previous  mortgages  con- 
stituted a  charge  upon  the  land. 

The  only  question  to  be  decided  is  whe- 
ther the  vendee  made  sufficient  enquiries, 
and  whether  it  was  incumbent  upon  him 
when  told  by  the  vendor  and  the  lambar- 
dar  of  the  village,  who  witnessed  the  sale- 
deed,  and  who  gives  evidence  to  this  effect, 
that  money  was  required  for  the  children's 
marriages,  to  ascertain  whether  any  steps 
had  been  taken  to  make  arrangements  or 
not.  Doubtless  he  was  bound  to  satisfy 
himself  that  the  vendor  had  a  child  or 
children,  and  here  the  vendor  had  five  young 
children  his  eldest  daughter  by  his  first 
wife  having  already  been  married.  In  the 
natural  course  of  events  he  had  to  make 
arrangements  for  the  marriages  of  these 
children  and  presumably  the  eldest  child 
would  be  married  before  long  and  I  think 
it  was  sufficient  for  him  to  satisfy  himself 
of  these  facts  and  that  he  was  not  bound  to 
make  further  enquiries,  which  would  have 
been  of  a  somewhat  inquisitional  nature 
and  might  have  been  very  much  resented. 
All  that  I  understand  to  be  laid  down  in 
Devi  Ditto,  v.  Saudagar  Singh  (1)  and 
subsequent  judgments  is  that  the  vendee 

U)  65  P.  R.  1900;  P.  I*  R.  1900,  p.  322, 


264 


HAKIM  DIN  V,  QDTAB  DIN. 


[92  I.  0. 1926] 


is  required  to  satisfy  himself  that  there  is 
prima  facie  necessity,  and  just  as  he  need 
n<?t  go  behind  an  antecedent  mortgage  or 
a.  just  debt,  it  is  sufficient  if  the  circum- 
stances justify  him  in  supposing  that  the 
vendor  is  telling  the  truth  when  he  tells  him 
th$t  he  requires  money  for  the  marriages  of 
his  children. 

The  question  remains  of  whether  the 
amount  is  so  excessive  that  it  should  not 
be  allowed.  It  is  true  that  the  children 
would  presumably  be  married  one  by  one, 
there  being  five  of  whom  two  are  daughters. 
I  do  not  think  it  can  be  said  that  the 
amount  is  excessive  for  a  Sayyad  zemindar 
to  spend  on  the  marriages.  I  therefore, 
accept  the  appeal  and  dismiss  the  suit  with 
costs  throughout, 

N.  H,  Appeal  accepted. 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.     OF  1925. 

July  27,  1925. 

Present— Mr.  Justice  Kanhaiya  Lai.    - 
BACH  <\N— DEFENDANT— APPLICANT 

versus 

RAGHUNATH  AND  OTHERS— PLAINTIFFS 
— OPPOSITR  PARTIES. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  152— 
Amendment  of  decree— Appeal  filed  but  not  decided — 
Jurisdiction  of  Trial  Conrt  to  amend  decree. 

It  is  oijly  when  an  appeal  has  been  decided  and  a 
decree  has  been  passed  in  appeal  confirming,  amend- 
ing or  reversing  the  decree  of  the  Trial  Com  fc  that  the 
appellate  decree  operates  to  supersede  the  Trial 
Court's  decree,  and  it  is  only  then  that  the  jurisdiction, 
of  the  Trial  Court  to  interfere  with  the  decree  so 
superseded  ceases.  Till  the  Api-Hhii<>  Court  hears  the 
appeal  and  decides  it,  the  den  (<•  of  i!i<  Trial  Court 
remains  in  force  and  it  can  be  rectified  or  amended  by 
the  Court  which  passed  it. 

Civil  revision  from  an  order  of  the  Sub- 
ordinate Judge,  Benares,  dated  the  9th 
May  1925. 

Mr.  K.  N.  Malaviya,  for  the  Applicant. 
JUDGMENT. — This  is  an  application 
in  revision  for  the  discharge  of  an  order  for 
the  amendment  of  a  decree  passed  by  the 
Trial  Court  on  the  9th  May  1925.  The 
Trial  Court .  observes  that  there  was  a  mis- 
take in  the  decree  which  was  not  in  ac- 
cordance with  the  judgment  and  it  has 
directed  that  mistake  to  be  rectified.  It  is 
argued  here  that  the  Trial  Court  had  ceased 
to  have  any  jurisdiction  to  amend  this 
decree  or  to  rectify  it  after  an  appeal  had 
been  filed  from  that  decree  in  the  Court  of 
the  District  Judge.  But  till  the  District 


Judge  hears  the  appeal  and  decides  it,  the 
decree  of  the  Trial  Court  remains  in  force 
and  ifc  can  be  rectified  or  amended  by  the 
Court  which  passed  it.  It  is  only  when  the 
appeal  has  been  decided  and  a  decree  has 
been  passed  in  appeal  confirming,  amend- 
ing or  reversing  it,  that  the  appellate 
decree  operates  to  supersede  the  decree  of 
the  Trial  Court,  and  it  is  only  then  that  the 
jurisdiction  of  the  Trial  Court  to  interfere 
with  the  decree  so  superseded,  ceases.  It 
is  immaterial  what  has  happened  since  the 
order  of  the  Trial  -Court  of  the  9th  May  1925 
now  sought  to  be  revised  was  passed.  The 
order  as  passed  on  that  date  was  correct 
and  the  Trial  Court  had  jurisdiction  to 
pass  it.  The  decision  in  Asma  Bibi  v. 
Ahmad  IJusain  (1)  refered  to  by  the  learned 
Counsel  for  the  applicant  does  not  apply 
because  in  that  case  the  amendment  was 
made  after  the  appeal  was  decided.  The 
application  is,  therefore,  rejected.  The  stay 
order  passed  will  be  withdrawn. 

z.  K,  Application  rejected. 

(1)  30  A.  290;  A.  W.  N.  (1908)  109;  5  A.  L.  J.  D84. 


LAHORE   HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1433  OF  1924, 

December  23,  1924. 

Present: — Mr.  Justice  LeRossignol. 

HAKIM  DIN — PLAINTIFF— APPELLANT 

versus 

QUTAB  DIN  AND  OTHERS — DEFENDANTS — 
RESPONDENTS. 

Muhammadan    Law  —  Gift,  revocability  of. 

When  once  a  delivery  of  possession  has  been  made 
a  gift  under  Muhammadan  Law  is  not  revocable  if 
the  conditions  of  the  gift  have  nofc  been  broken. 

Second  appeal  against  the  decree  of  the 
Senior  Sub-Judge,  Sialkot,  dated  the  26th 
February  1924,  confirming  that  of  the 
Fourth  Class,  Sub-Judge,  Sialkot,  dated 
the  4th  December  1923. 

Lala  Mool  Chand,  R.  8.,  for  the  Ap- 
pellant 

Mr.  Abdul  Rashid,  for  the  Respondents. 

JUDGMENT.—This  second  appeal 
arises  out  of  a  suit  for  a  declaration  that  a 
gift  by  the  plaintiff  is  null  and  void  and 
should  be  revoked.  The  gift  consisted  of 
the  plaintiff's  fourth  share  in  a  house  which 
was  under  mortgage  with  possession,  and, 
in  the  Courts  below  several  reaeonp  were 
alleged  why  the  gift  should  be  set  aside 


L  0. 1926] 


BA9HIR  AHMAD  V.  ZOBA1DA  KHATUN. 


265 


as,  for  instance,  undue  influence,  breach  of 
the  conditions  of  the  gift,  invalidity  of  the 
gift  of  plaintiff's  undivided  share.    On  all 
these  points  the  plaintiff  has  been  unsuccess- 
ful and  before   me  the  appellants  Counsel 
has  narrowed  down  his  contentions1  to  this 
only    that  under  Muhammadan   Law  a  gift 
is  always  revocable  even  after  seisin    has 
been    delivered  except  in  certain  cases  into 
none  of  which  the  present  case  falls.    This 
contention  is  that  a  gift    under    Muhain 
madan  Law    is  always    revocable  by  the 
donor  even  after  delivery    of  the  property 
gifted  although  none  of  the  conditions  of 
the  gift  have  been  broken.    I  am  not  able 
to  accept  this    proposition  and  hold  that 
when  once  delivery  has    been  made  a  gift 
under  Muhammadan  Law  is  not  revocable 
if  the  conditions  of  the  gift  have  not  been 
broken,  and  I  dismiss  the  appeal  with  costs. 
N.  H.  Appeal  dismissed. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No,  516  OP  1924. 

November  26,  1925. 
Present : — Mr.  Justice  Hasan  and 

Mr.  Justice  Raza. 

Sheikh  BASHIR  AHMAD— PLAINTIFF- 
APPELLANT 

versus 

Musammat  ZOBAIDA  KHATUN  AND 
ANOTHER— DEFENDANTS— RESPONDENTS. 

Muhammadan  Law— Hiba-bil-ewaz,  nature  of — 
Conveyance  of  landed  property  for  dower —Transac- 
tion, whether  sale- -Pre-emption,  right  of—Oadh  Laws 
Act  (XVIII  of  1876),  3.9— Transfer  of  Property  Act 
(IV  of  1882} ,  8  5£— "Price"  meaning  of  -Dower-debt, 
whether  price— Deed>  construction  of. 

A  conveyance  of  landed  property  by  a  husband  to 
his  wife  in  consideration  of  an  extinction  of  her  dower- 
debt  is  a  gift  of  the  form  known  as  hiba-bil-ewaz  in 
Muhammadan  Law,  and  as  such  is  not  liable  to  pre- 
emption .  It  cannot  be  regarded  as  a  sale  attracting 
the  provisions  of  8.  9  of  the  Oudh  Laws  Act,  [p.  265, 
col.  2.] 

Ram  Prasadv.  Rahat  Bibi,  33  Ind.  Gas.  622;  18  O. 
0.367,  Abid  AH  v.  Arabunnissa,  1  O.  C.  75,  fol- 
lowed. 

Nathu  v.  Shadi,  29  Ind,  Caa.  495,  37  A.  522;  13  A. 
L.  J.  714,  not  followed. 

A  hiba-bil-ewaz  is  a  well  recognised  mode  of  trans- 
fer of  property  in  Muhammadan  Law.  A  sale  is 
equally  a  well-understood  form  of  contract  in  the 
same  law,  yet  according  to  that  law  the  legal  in- 
cidents of  each  case  differ  in  many  respects,  [p.  266, 
col.  2.] 

A  hiba-bil-ewaz  is  a  combination  of  two  reciprocal 
gifts,  [ibid.] 

Jmdad  AH  v.  Ahmad,  Ali,  85  Ind,  Cas,  400;  1  Q.  W, 


N,  868;  10  O.  &  A.  L.  R.  1215;  28  O.  0.  55;  (1925)  A,' 
I.  R.  (O.)  518,  referred  to, 

The  consideration  for  a  transaction  of  hiba-bil-ewaz 
in  Muhammadan  Law  does  not,  therefore,  re&t  merely 
in  the  pecuniary  value  of  the  subject-matter  of  the 
gift  and  of  the  return  but  there  is  always  a  personal 
element  when  the  gift  is  made  in  favour  of  one's  wife 
or  other  near  relations,  [p  267,  col.  1.1 

It  is  wholly  unsafe  to  deduce  a  rule  of  law  that  a 
claim  for  pre-emption  can  lie  in  respect  of  a  tumsau- 
tion  of  hiba-bil-ewaz  if  iu  effect  it  amounts  to  a  sale, 
when  no  such  rule  was  promulgated  by  the  Muham- 
madan jurists,  [ibid] 

The  word  "property"  as  understood  in  Muhammadan 
Law  dues  not  include  ?  es  incorporates  which  a  claim 
for  dower  is.  [p.  267,  col  2  ] 

The  word  "price11  in  the  definition  of  sale  in  s  54, 
Transfer  of  Property  Act,  means  "money "  [p  268* 
col  1.1 

A  Muhammadan  transferring  property  in  lieu  of 
dower  to  his  wife  does  not  receive  any  "price"  within 
the  meaning  of  that  word  in  s.  54,  Transfer  of  Property 
Act.  [p  268,  col.  1] 

There  is  no  difference  in  principle  whether  the  pro- 
perty is  transferred  'as  dower'  or  'in  lieu  of  dower' 
[p  207,  col  2,1 

The  primary  object  of  all  interpretation  is  to  deter- 
mine what  intention  IB  conveyed  by  the  deed  and  the 
primary  source  of  determining  such  an  intention  is 
the  language  used  in  the  deed  [p  266,  col.  2.J 

Appeal  against  a  decree  of  the  District 
Judge,  Fyzabad,  dated  the  15th  September 
1924,  setting  aside  the  decree  of  the  Addi- 
tional Subordinate  Judge,  Sitapur,  dated 
the  12th  March  1924. 

ORDER, 

Simpson,  A.  J.  C.— (September  2, 
1926)  — Counsel  for  the  appellant  at  the 
close  of  his  argument  asked  me  to  refer 
this  appeal  for  decision  to  a  Bench.  Coun- 
sel for  the  respondent  agreed  to  this  course 
being  taken.  The  reason  is  that  the  appeal 
raises  the  question  whether  a  conveyance 
of  landed  property  by  a  husband  to  his 
wife,  in  consideration  of  an  extinction  of 
her  dower-debt,  is  to  be  regarded  as  a  sale, 
attracting  the  provisions  of  s,  9  of  the  Oudh 
Laws  Act,  and  liable  to  pre-emption,  or 
whether  it  is  to  be  regarded  as  a  gift  of  the 
form  known  in  Muhammadan  Law  as  a  hiba- 
bil  ewaz,  and  as  such  not  liable  to  pre-emp- 
tion. 

The  learned  Munsif  decided  that  the 
transaction  was  a  sale  and  gave  plaintiff  a 
decree.  The  learned  District  Judge  felt 
himself  constrained  to  follow  Ram  Prasad 
v.  Rahat  Bibi  (1),  and  dismissed  the  suit. 
I  do  not  propose  to  discuss  the  cases,  but  I 
mention  Mohammad  Zaki  Khan  v.  Munnu 
Sahu  (2),  and  the  cases  therein  referred  to, 

.  (1)   33  Ind    Oas.  622;  18  O.  C.    367. 

(2)  87  Ind  Cas  176;  2  O  W.  N  171;  12  0.  L.  J, 
267;  (1923;  A  J.  U.  (O.)  407;  23  O,  C.  227. 


266 


BA8HIR  AHMAD  V.  ZOBAIDA  KHATUN. 


especially  Fid  a  All  v.  Muzaffar  All  (3)  a 
decision  of  Mahmood,  J.,  a  high  authority 
on  Muhammadan  Law,  and  Abbas  AliShik- 
dar  v,  Karim  Bakhsh  Shikdar  (4).  The  cases 
Lachhman  Prasad  v.  Mir  Fida  Husain  (5), 
Abid  Ali  v.  Arabunnissa  (6)  and  Raj Kishore 
v,  Raghunath  Prashad(7)  on  which  Ram  Pra- 
sad v.  Rahat  Bibi  (1)  purports  to  be  founded, 
were  all  cases  of  actual  exchange  of  some 
specific  thing.  They  were  not  cases  either 
of  a  money  price  or  of  a  extinction  of  a 
debt.  I  certify  that  the  appeal  ought  to  be 
heard  by  a  Bench. 

Mr.  NiamatuUahi  for  the  Appellant. 

Mr.  Haider  Hyssain,  for  the  Respondent. 

JUDGMENT.— This  is  the  plaintiffs 
appeal  in  a  suit  for  pre-emption  which  suc- 
ceeded in  the  Trial  Court  but  on  appeal  by 
the  defendants  the  learned  District  Judge 
of  Fyzabad  reversed  the  decree  of  the  Court 
of  first  instance  and  dismissed  the 
plaintiff's  suit.  This  appeal  is  preferred 
from  the  decree  of  the  learned  District 
Judge  dated  the  15th  of  September  1924. 

On  the  25th  of  August  1922  Akhtar 
Husain  defendant  No.  2  executed  a  docu- 
ment by  which  he  transferred  certain  im- 
moveable  property  of  his  own  to  his  wife, 
Musammat  Zubaida  Khatun,  defendant 
No.  1.  The  claim  for  pre-emption  is  in  res- 
pect of  that  transfer.  The  defence,  with 
which  we  are  concerned  in  this  appeal,  was 
that  the  transaction  evidenced  by  the  deed 
of  the  25th  of  August  1922  was  not  a  sale 
but  one  of  a  hiba-bil-ewaz  and  that  con- 
sequently it  was  not  subject  to  the  right  of 
pre  emption. 

The  deed  in  question  recites  the  fact  of 
the  marriage  of  Akhtar  Husain  with 
Musammat  Zubaida  Khatun  and  also  the 
fact  that  Musammat  Zubaida  Khatun's 
dower  was  fixed  at  that  marriage  at  the 
sum  of  Rs,  2,500.  The  deed  then  proceeds 
to  say  that  the  dower  had  remained  unpaid 
till  then  and  that  it  was  incumbent  on 
the  husband,  Akhtar  Husain,  to  satisfy 
it.  The  operative  part  of  the  deed  is  the 
transfer  of  a  2  biswa  2£  anansi  under 
proprietary  share  in  village  Dostpur  Feroz- 
pur,  Parganna  Aldemau,  District  Sultan- 
pur,  in  favour  of  Musammat  Zabaida 
Khatun.  The  words  of  transfer  used  in  the 

(3)  5  A.  65;  A.  W.  N.  (1882)  175;   3  Ind.  Dec.  (N.  s.) 
85, 

(4)  4  Ind.  Gas.  466;   13  C.  W.  N  160. 

(5)  30  Tnd.  Cas.  232;  18  O.  C.  109;  2  O.  L.  J,  220.      ' 

(6)  1  O,  C.  75. 

(7)  4  O.  0, 169, 


[92  I.  0.  1926J 

document  are  "hiba  wa  bakhsh  diya"  (made 
a  gift  and  present  of),  The  value  of  the 
zemindari  share  which  is  the  subject-matter 
of  the  gift  is  mentioned  to  be  Rs  2,000.  At 
the  end  the  document  is  christened  a  deed 
of  gift. 

Under  s.  9  of  the  Oudh  Laws  Act,  1876, 
the  right  of  pre-emption  arises  in  respect 
of  "the  property  to  be  sold  or  foreclosed.11 
The  question  for  decision,  therefore,  is  whe- 
ther the  2  biswas  odd  share  was  sold  or  not 
by  the  deed  of  the  25th  of  Augurt  1922. 
The  plaintiff's  case,  as  stated  in  para  2  of 
the  plaint,  is  that  the  transaction  evidenced 
by  the  deed  of  the  25th  of  August  1922 
was  in  reality  a  sale  but  that  it  has  been 
clothed  in  the  garb  of  a  hiba-bil  ewaz  with 
the  fraudulent  motive  of  <lofoifiiiir  the 
claim  for  pre-emption.  No  evidence  >  a liunde 
of  the  contents  of  the  deed  was  relied  upon 
in  proof  of  this  case.  The  question  is, 
therefore,  one  of  interpretation  alone.  The 
primary  object  of  all  interpretation  is  to 
determine  what  intention  is  conveyed  by  the 
deed  and  the  primary  sourc<-of determining 
such  an  intention  is  the  language  used  in 
the  deed  In  the  present  instance  the  in- 
tention is  floating  on  the  surface  of  the  docu- 
ment and  that  intention  was  to  effectuate  a 
transaction  of  hiba-bil  zwaz  and  not  of  sale. 
A  hiba-bil-ewaz  is  a  well-recognised  mode 
of  transfer  of  property  in  Muhammadan 
Law.  A  sale  is  equally  a  well-under- 
stood form  of  contract  in  the  same  law,  yet 
according  to  that  law  the  legal  incidents  of 
each  case  differ  in  many  respects.  The 
parties  to  the  deed  of  the  25th  of  August 
1922  are  Hanafi  Muhammadans.  Is  it  com- 
petent for  the^Courts  of  law  to  thwart  the 
express  intention  of  the  parties  and  to. 
convert  the  transaction  of  hiba  bil-ewaz  in- 
to one  of  sale  so  as  to  attract  to  it  a  claim 
for  pre-emption  under  the  Oudh  Laws  Act. 
Our  answer  to  this  question  is  in  the 
negative. 

It  was  admitted  at  the  Bar  that  hiba-bil- 
ewaz  is  a  combination  of  two  reciprocal 
gifts— See  in  this  connection  the  decision 
of  one  of  us  in  the  case  I'mdad  Ali  v. 
Ahmad  Ali  (8).  If  that  is  so,  the  transaction 
in  question  evidences  the  gift  of  the  zamin- 
dari  share  by  Akhtar  Husain  to  his  wife, 
Musammat  Zubaida  Khatun,  and  of  the 
claim  for  dow^r  by  the  latter  to  the  former. 
Such  a  transaction  is  clearly  not  a  sale. 

The  entire  law  of  gifts,   whether  simple 

(8)  85  Ind.  Cas.  400;  1  0.  W.  N.  868;  10   0.  &  A 
R.  1215;  28  0,  0, 55;  (1925)  A.  1.  R.  ' 


[92  I.  0.  1926J 


BASHIR  AHMAD  V.  ZtJBAIDA  KHATtW. 


267 


or  bil-eivaz  rests  on  the  Prophet's  saying: — 
"Send  ye  presents  to  each  other  for  the 
increase  of  your  love."  (Hamilton's  Hedaya, 
Book  XXX  p.  291).  In  the  case  of  a  gift  by 
the  husband  to  his  wife  and  vice  versa  the  re- 
cognised object  of  the  gift,  in  Muhammadan 
Law,  'is  improved  affection'  Hamilton's 
Hedaya,  Book  XXX  p.  302.)  The  considera- 
tion for  a  transaction  of  hiba-bil-ewaz  in 
Muhammadan  Law  does  not,  therefore,  rest 
merely  on  the  pecuniary  value  of  the  subject- 
matter  of  the  gift  and  of  the  return  but  there 
is  always  a  personal  element  when  the  gift 
is  made  in  favour  of  one's  wife  or  other 
near  relations.  In  the  present  case  the 
wife  has  accepted  property  worth  Rs.  2,000 
only  in  satisfaction  of  her  claim  of  dower 
for  Rs  2,500.  The  acceptance  of  the  gift  is, 
therefore,  clearly  prompted  by  considerations 
of  natural  love  and  affection  and  acceptance 
is  an  essential  element  of  a  contract  of  gift. 
The  strongest  case  in  favour  of  the  appel- 
lant is  the  decision  of  Mahmood,  J.  in  the  case 
of  Fida  Ali  v.  Muzaffar  All  (3)  This  decisi- 
on was  followed  in  Nathu  v.  Shadi  (y)  but 
is  ^not  accepted  as  good  law  by  Mr.  Ameer 
Ali— See  his  book  on  Muhammadan  Law, 
Volume  I,  4th  Edition,  page  713.  We  are  c  f 
opinion  that  the  view  expressed  by  Mr.  Ameer 
Ali  is  correct.  Now  in  the  first  place,  in  the 
booka  of  Muhammadan  Law  for  instance 
Hedaya,  the  transaction  of  hiba-bil-ewaz  is 
not  mentioned  as  one  subject  to  the  exer- 
cise of  the  right  of  pre-emption.  We  think 
it  is  wholly  unsafe  to  deduce  a  rule  of  law 
that  a  claim  for  pre-emption  can  lie  in 
respect  of  a  transaction  of  hiba-bil-ewaz  if 
in  effect  it  amounts  to  a  sale  when  no  such 
rule  was  promulgated  by  the  Muhammadan 
jurists.  In  the  judgment  of  Mahmood,  J., 
which  commands  our  greatest  respect,  no  rule 
of  Muhammadan  Law  is  quoted.  A  passage 
from  the  Sharaya-uUslam  and  another  from 
the  Mafatih,  both  books  of  authority  on  the 
Shia  Law,  are  quoted  to  elucidate  the  rule 
applicable  to  the  cases  where  there  is  no 
right  of  pre-emption.  The  learned  Judge 
rightly  points  out  "that  sale  is  an  essential 
condition  precedent  to  the  operation  of  the 
right  of  pre-emption  is  a  well-established 
principle  of  Muhammadan  Law  and  in  this 
respect  no  serious  difference  exists  between 
the  doctrines  of  the  Sunni  and  the  Shia 
Schools.11  The  rule  stated  in  the  Mafatih 
and  the  Sharaya-ul-Islam  as  quoted  in 
the  judgment  of  the  learned  Judge  may 

(9)  ?9  Ind.  Oae.  495;  37  A.  522;  13  A.  U  J,  714. 


well,  therefore,  be  regarded  as  the  rule  of 
the  Sunni  Law  also.  In  the  8haraya-ul- 
Islam  the  rule  is  thus  expressed: — 

''If  the  share  has  been  assigned  as  a 
dower,  or  given  in  charity,  or  bestowed  by 
way  of  gift,  or  in  compromise,  it  is  not 
subject  to  the  claim  of  pre-emption.1'  In  the 
Mafatih  the  rule  is  stated  in  similar  terms: — 
"The  transfer  must  be  by  sale.  80,  if  the 
transfer  be  made  as  dowei*,  or  as  a  gift,  or 
in  compromise,  then  according  to  the 
prevalent  doctrine,  there  is  no  right  of  pre- 
emption1'. The  rule  precisely  apposite  to 
the  case  before  us  is  stated  in  Hedaya  as 
follows: — 

"If  a  man  marry  a  woman  without  settling 
on  her  any  dower  and  afterwards  settle  on 
her  as  house  as  a  dower  the  privilege  of 
shuffa  does  not  take  place,  the  house  being 
considered  in  the  same  light  as  if  it  had 
been  settled  on  the  woman  at  the  time  of 
•  ':.,•  It  is  otherwise  where  a  man  sells 
his  house  in  order  to  discharge  his  wife's 
dower  either  proper  or  stipulated;  because 
here  exists  exchange  of  property  for  pro- 
perty. "(Hamilton's  Hedaya,  BookXXXVJII, 
page  593).  We  think  that  these  rules  conclu- 
sively exclude  the  right  of  pre-eniption 
in  a  case  of  the  nature  which  we  have  (before 
us.  / 

In  the  rule  in  Hedaya  emphasis  must  be 
laid  on  the  word  'sells.'  The  case  before  us 
is  not  of  sale  and  of  the  application  of  the 
purchase  money  to  the  payment  of  the 
dower.  In  interpreting  this  rule  it  should 
be  borne  in  mind  that  the  word  'property1 
as  understood  in  Muhammadan  Law  does 
not  include  res  incorporates  which  a  claim 
for  dower  is. 

What  difference  in  principle  can  it  make 
whether  the  property  is  transferred  "as 
dower"  or  "in  lieu  of  dower/1  In  each  case 
the  dower  is  represented  by  the  property.  The 
transaction  before  us  may  equally  fall  with- 
in the  description  of  a  "compromise.11  The 
wife  has  a  claim  of  dower  to  the  extent  of 
Rs.  2,500.  The  husband  is  unable  to  satisfy 
it  fully.  He  is  willing  to  offer  property  in 
satisfaction  of  the  entire  claim  the  value 
of  which  is  Rs.  2,000  only.  The  wife  accepts 
the  offer.  Is  this  not  a  compromise  ?  Again 
what  difference  can  it  make  in  principle 
whether  the  amount  of  dower  is  fixed  before 
hand  in  money  or  whether  it  is  fixed  by  the 
value  of  the  property  given  as  dower.  It  is 
permissible  in  Muhammadan  Law  to  fix  no 
dower  at  the  marriage  and  to  fix  it  later. 
An  instructive  instance  oa  the  point  just 


288 


BAKHSH  V.  8ARBULAND. 


now  mentioned  will  be  found  in  the  deci- 
sion of  their  Lordships  of  the  Privy  Council 
in  the  case  of  Kamar-Un-Nissa  Bibi  v. 
Hussaini  Bibi  (iO). 

[t  was  argued  by  the  learned  Advocate 
for  the  appellant  that  the  transaction  in 
question  was  a  sale  within  the  meaning  of 
s,  54  of  the  Transfer  of  Property  Act,  1882, 
and  it  was  further  argued  that  if  that  was 
so  the  claim  for.  pre-emption  must  prevail. 
In  support  of  the  first  portion  of  the  argu- 
ment the  following  cases  were  cited: — 

Asalat  Fatima  v.  Shambhu  Dayal  (11)  and 
Abbas  Ali  v.  Karim  Bakhsh  (4).  These  cases 
established  the  need  of  a  registered  instru- 
ment for  a  transaction  of  a  hiba-bil  eicaz. 
The  following  cases  were  also  cited  to  show 
that  the  doctrine  of  marzul-maut  as  under- 
stood in  Muhammadan  Law  was  not  applica- 
ble toatransactionof/u6a-6i^ewa2: — Ghulam 
Mustafa  v.  Ilurmat  (12)  and  Esahuq  Chow- 
dhury  v.  Ahedanissa  Bebi  (i3).  We  have  con- 
sidered these  cases  carefully  and  we  think 
that  we  will  iv.i-ir:!  V  ourselves  if  we  de- 
cide the  question  involved  in  the  present 
appeal  in  the  light  of  the  expressions  of 
opinion  used  in  those  cases  on  matters  wholly 
different  in  essence. 

There  is  one  feature  of  the  definition  of 
sale  in  s.  54  of  the  Transfer  of  Property  Act, 
1882,  to  which  we  might  profitably  advert 
and  that  is  the  meaning  of  the  word  'price* 
as  used  therein.  It  was  agreed  at  the  Bar 
that  that  word  in  that  definition  meant 
"money.11  We  also  agree  with  that  view.  The 
question,  therefore,  is;  Did  Alditar  Husain 
obtain  money  or  a  promise  of  payment  of 
money  in  consideration  of  the  transfer  oi 
the  zemindari  share  which  he  made  to  his 
wife  ?  Our  answer  is  in  the  negative.  On 
the  date  of  the  deed  of  gift  Musammat 
Zubaida  Khatun  had  only  a  claim  on  a 
legal  right  to  her  dower  debt  against  her 
husband,  Akhtar  Husain,  and  Akhtar  Husain 
was  under  a  corresponding  legal  obligation 
to  satisfy  it.  .In  discharge  of  that  obligation 
Akhtar  Husain  makes  the  transfer  in  ques- 
tion and  Musammat  Zubaida  Khatun  releases 
him  of  that  oHiirali-'/r.  A  claim  for  a  debt 
is  a  "chose  in  action11  and  has  well-known 
legal  incidents— See  Ryall  v.  Ramies  (14) 
and  notes  under  it,  in  White  and  Tudor's 

(10)  3  A.  206;  3  Suth.  P.  0.  J.  804;    4  Ind.  Jur.  538; 
4  Bar.  P  C.  J,  185;  2  Ind.  Dec.  (N  s.)  46  (P.  O,). 

(11)  11  Ind.  Cas,  928;  14  O.  C.  214 

(12)  2  A  85 i;  1  Ind.  Dec.  (N.  s.;  1134. 

(13)  28  Tnd.  Oas.  692;  42  0.  361;  19  0  W,  N,  325, 

(14)  1  Wh.  &  T,  L.  C.  (8th  Ed.)  p.  98n. 


£92  L  0. 1826] 

Volume  1,  page  88,  eighth 
edition).  Where  does  then  payment  of 
money  or  a  promise  to  pay  money  come 
in  this  transaction?  Nowhere.  In  Lachh- 
man  Prasad  v.  Mir  Fida  Husain  (5)  it 
was  held  that  the  "equity  of  redemption" 
was  not  "price"  within  the  meaning  of  s.  54 
of  the  Transfer  of  Property  Act  but  that 
it  was  a  "thing"  within  the  meaning  of  s.  H8 
of  the  same  Act.  The  Bench  of  the  late 
Court  of  the  Judicial  Commissioner  held  in 
that  case  that  where  a  person  assigned  his 
equity  of  redemption  in  consideration  of 
the  assignee  transferring  to  him  proprietary 
rights  over  certain  other  lands  the  transac- 
tion was  an  "exchange"  and  no  right  of  pre- 
emption could  be  exercised  with  respect 
to  it. 

The  course  of  decisions  in  the  late  Court 
has  been  uniform  and  we  are  not  prepared 
to  disturb  it.  The  decision  in  the  case 
of  Ram  Prasad  v.  Rahat  Bibi  (1)  is  directly 
in  point  and  against  the  appellant.  Previous 
decisions  of  that  Court  are  to  the  same 
effect — See  Mir  Abid  Ali  v.  Arabunnissa  (6) 
and  Raj  Kishore  v.  Raghunath  Pfasad  (7). 

On  behalf  of  the  respondents  our  atten- 
tion was  drawn  to  two  decisions  of  the 
late  Punjab  Chief  Court  also  Mir  Zaman 
Khan  v.  Ghulam  Fatima  (15)  and  Ghulam 
Raza  v.  Sardar  Khan  (16).  Our  opinion 
falls  in  line  with  the  opinions  expressed  in 
these  Punjab  cases. 

The  result  is  that  the  appeal  fails  and  is 
dismissed  with  costs. 

N.  H.  Appeal  dismissed. 

(15)  88  P.  R.  1001,  145  P.  L  R.  1901. 

(16)  86  P.  R.  1902,  4  P.  L.  R.  1903. 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No,  55  OF  1H24. 

July  23,  1925. 
Present : — Mr.  Justice  Broadway  and 

Mr.  Justice  Coldstream, 

RUSSIAN  BAKHSH— PLAINTIFF— 

APPELLANT 

versus 

SARBULAND— DEFENDANT- 
RESPONDENT. 

Colonization  of  Government  Lands  (Punjab)  Act  (V 
of  1912),  s.  19  —Agreement  by  tenant  to  Hold  land  jointly 
with  another,  validity  of. 

A  Government  tenant  of  a  horse-breeding  tenancy 
executed  an  agreement  in  favour  of  his  brother  recit- 
ing that  he  and  his  brother  had  jointly  purchased  th$ 


HUSSAIN  BAKHSH  V.  SARBDLAND. 


[92  I.  0.  192B] 

mare  required  for  the  grant  of  land  and  paid  for  the 
grant  out  of  joint  funds  and  that  the  land  would  be 
considered  their  joint  property  in  future  • 

Held%  that  in  the  absence  of  the  consent  of  the  Com- 
missioner or  other  officer  specified  in  s.  19  of  the 
Colonization  of  Government  Lands  (Punjab)  Act, 
the  agreement  was  void  under  the  provisions  of 
that  section  and  could  not  be  enforced  in  a  Civil  Court, 
[p.  270,  col.  L] 

First  appeal  from  a  decree  of  the  Senior 
Subordinate  Judge,  Shahpur  at  Sargodha, 
dated  the  30th  November  1^23. 

Mr.  J.  L.  Kapur  for  Dr.  Muhammad  Alam, 
and  Lala  Maya  Das,  for  the  Appellants. 

Messrs.  M.  L.  Puri  and  Bal  Kishan,  for 
the  Respondents, 

JUDGMENT*— This  order  will  dispose 
of  the  two  appeals,  Nos.  55  and  422  of  1924, 
The  circumstances  out  of  which  they  arise 
are  as  follows  : — 

In  or  about  the  year  1903  Sarbuland,  the 
respondent,  was  given  by  Government  a 
horse  breeding  grant  of  two  squares  of  land 
Nos.  21  and  30  in  Chak  No.  36  in  Sargodha 
Tahsil.  On  30th  August  1912  Sarbuland 
executed  a  document  -  reciting  that  his 
brother  Hussain  Bakhsh  and  he  had  jointly 
purchased  the  mare  required  for  the  grant 
of  land  and  paid  for  the  grant  out  of  joint 
funds,  that  they  were  jointly  liable  for  their 
debts,  and  that  the  land  would  be  consider- 
ed their  joint  property  in  future.  The 
document  stated  that  Hussain  Bakhsh  was 
to  continue  to  cultivate  the  square  No.  21 
and  Hurbuland  the  other  square.  If  Sar- 
buland resiled  from  this  "  agreement "  he 
was  to  pay  Rs.  5,000  to  Hussain  Bakhsh. 

Sarbuland  then  proceeded  to  petition  for 
insolvency  on  2nd  October  1913  and  was 
adjudicated  insolvent.  In  subsequent  pro- 
ceedings Hussain  Bakhsh  appears  to  have 
made  several  unsuccessful,  attempts  to  have 
one  square,  or  its  produce,  released  on  the 
strength  of  the  document  of  1912.  There 
was,  it  seems,  some  kind  of  arrangement 
between  Sarbuland  and  his  creditors  lead- 
ing to  a  discharge,  for  on  7th  January  1922 
a  creditor  applied  to  the  Insolvency  Court 
to  have  Sarbuland  declared  insolvent  again. 
On  12th  May  1922  Hussain  Bakhsh  filed 
objections  to  the  attachment  of  one  square. 
His  petition  was  dismissed  by  the  District 
Judge  on  27th  March  1923  by  the  following 
order;— -  * 

"He  claims  to  be  owner  of  one  square  out 
of  two  squares  held,  by  the  insolvent. 
Hussain  Bakhsh  has  sometimes  put  in  a 
claim  for  the  produce  of  the  land  as  a 
tenant  and  had  once  asked  to  be  admitted 


269 


as  a  creditor  to  the  extent  of  Rs.  5,000  if 
this  claim  to  one  square  was  not  allowed, 
but  my  predecessors  have  not  admitted  his 
rights.  I  am  not  prepared  to  re  open  the 
question.  He  may  have  the  question,  if  he 
likes,  decided  by  a  Civil  Court.  The  appli- 
cation is  accordingly  rejected." 

On  20th  May  1923  Hussain  Bakhsh  filed  a 
suit  in  the  Court  of  the  Senior  Subordinate 
Judge  at  Sargodha  against  Sarbuland  for  a 
declaration  that  he  had  the  same  right  in 
the  square  No,  21  as  Sarbuland  had  in 
square  No.  20,  alleging  that  the  grant  had 
been  paid  for  out  of  proceeds  of  ancestral 
land  of  himself  and  his  brother  and  relying 
on  the  document  executed  by  Sarbuland  in 


The  plaint  ended  with  the  prayer  that  if 
Hussain  Bakhsh  was  not  found  entitled  to 
the  rights  claimed,  a  decree  in  respect  of 
the  rights  found  proved  might  be  granted, 
This  suit  was  dismissed  on  30th  November 
1923,  on  the  grounds,  firstly,  that  the  ques- 
tion of  plaintiffs  title  had  been  finally 
decided  against  him  under  the  provisions 
of  s.  4  (2)  of  the  Provincial  Insolvency  Act, 
1920,  by  the  order  of  the  Insolvency  Court 
of  27th  March  1923,  and  secondly,  thit  the 
provisions  of  the  document  of  the\30th 
August  1912  were  contrary  to  the  law  con- 
tained in  s.  19  of  the  Colonization  of 
Government  Lands  (Punjab)  Act,  V  of 
1912,  by  which  any  transfer  or  change 
made  without  the  consent  in  writing  of 
the  Commissioner,  or  other  officer  empower- 
ed, of  any  of  the  rights  or  interest  vested 
in  a  tenant  by  or  under  the  Government 
Tenants  (Punjab)  Act,  1893  or  the  Act  V 
of  1912  "  shall  be  void.'1  Against  this  order 
Hussain  Bakhsh  on  4th  January  1924  filed 
the  Appeal  No.  55  of  1924  Three  days  later 
he  filed  the  Appeal  No.  422  of  1924  against 
the  order  of  the  District  Judge,  dated 
27th  Mrach  1923,  along  with  an  affidavit 
in  support  of  his  prayer  for  extension  of 
time  under  s.  14  of  the  Indian  Limitation 
Act. 

We  may  take  first  the  appeal  nguinst  tlio 
District  Judge's  judgment  of  JJUlli  Novem- 
ber 1923. 

Mr,  J.  L.  Kapur  for  the  appellant  admits 
that  the  defendant  is  still  a  tenant,  bound 
by  the  provisions  of  Act  V  of  1912,  and 
that  the  agreement  of  1912  was  executed 
after  the  Act  V  of  1912  came  into  force, 
but  contends  that  there  is  nothing  in  s.  19 
of  that  Act  to  preclude  the  grant  of  a 
decree  giving  effect  to  the  agreement  of 


270 


MAUNQ  SBIN  HTIN  V.  CBEfc  PAN  NdAW. 


1912,  which  can  be  binding  only  upon  the 
parties  to  the  suit  and  will  riot  affect  the 
rights  of  Government.  He  cites  Ali  Mar- 
dan  v.  Bakar  Khan  (1),  Hussain  Khan  v. 
Jakan  Khan  (2)  and  Nathu  v,  Allah  Ditta 
(3).  The  facts  in  these  three  cases  were, 
however,  clearly  distinguishable  from  those 
of  the  present  case.  In  Ali  Mardan  v. 
Bakar  Khan  (1)  the  question  for  decision 
was  whether  a  Deputy  Commissioner  could 
move  for  the  revision  of  a  decree  which 
contravened  a  provision  of  the  Government 
Tenants  (Punjab)  Act  III  of  1893  (which 
has  been  superseded  by  the  Colonization 
of  Government  Lands  Act,  1912).  It  was 
held  that  there  was  no  legal  procedure  pro- 
viding for  such  revision. 

The  ruling  Hussain  Khan  v.  Jahan  Khan 
(2)  dealt  with  a  case  in  which  it  was 
sought  to  enforce  an  agreement,  similar  to 
that  relied  upon  here,  after  proprietary 
rights  had  been  acquired  in  land  granted 
under  the  provisions  of  Act  III  of  1893. 
Similarly  in  the  case  decided  in  Nathu  v, 
Allah  Ditta  (3),  the  defendant,  against 
whom  an  agreement  to  share  a  grant  was 
enforced,  had  acquired  proprietary  rights 
and  was  no  longer  a  mere  tenant.  It  is 
further  to  be  noticed  that  s.  19  of  Act  V  of 
1912  contains  an  express  provision  that 
transfers  contrary  to  its  other  provisions 
shall  he  void,  which  is  not  to  be  found  in 
the  corresponding  s.  8  of  the  Act  of  1893. 
In  view  of  s.  19  of  the  Act  of  1912  we  are 
of  opinion,  that  the  agreement  of  30th 
August  1912,  so  far  as  it  relates  to  rights 
vested  in  the  respondent  as  a  tenant  grantee 
(and  it  is  not  here  sought  to  have  declared 
any  rights  which  may  not  be  so  described) 
is  void  and  its  enforcement  by  declaration 
was  rightly  refused  by  the  Trial  Court.  As 
the  appeal  must  fail  upon  this  finding, 
there  is  no  necessity  to  discuss  the  second 
ground  urged  by  Mr.  Kapur  relating  to 
the  effect  of  the  order  of  27th  March  1923 
in  the  insolvency  proceedings.  The  Appeal 
No.  55  of  1924  is  dismissed  with  costs. 

It  is  admitted  by  Mr.  Kapur  that  if 
Appeal  No.  55  fails  there  remains  no  force 
in  the  other  Appeal  No.  422  of  1924,  which 
is  accordingly  also  dismissed  with  costs. 

z.  K,  Appeal  dismissed. 

(1)  17  Ind.  Gas.  680;  13  P.  R.  1913;  7  P.  W.  R.  1913; 
27  P.  U  R.  1913. 

(2)  18  Ind.  Gas.  5;  58  P.  R.  1913;  48  P.  L.  R.  1913;  36 
P.  W  R.  1913 

(3)  61  Ind.  Gas.  18;  3  L.  92;  3  L.  L.  J,  505;  (1922)  A, 


[92 1.  0.  1926] 

RANGOON  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  89  OF  1924. 

March   16,  1925. 

Prese/U:— Mr.  Justice  Lentaigne. 
MAUNG  SEIN  HTIN— PLAINTIFF- 
APPELLANT 

versus 

CHEE  PAN  NG AW— DEFENDANT 
— RESPONDENT. 

Contract  Act  (IX  of  1872),  s  23— Agreement  not  to 
bid  at  excise  auction,  legality  of—  Public  policy-*- 
Money  paid  under  agreement  not  to  bid,  whether  can  be 
recovered — Fraud,  plea  of — Burden  of  proof. 

An  agreement  not  to  bid  at  an  excise  auction  is  not 
per  se  illegal  or  opposed  to  public  policy,  [p.  272, 
coll  ] 

Where  a  plaintiff  alleging  that  he  had  paid  certain 
money  to  the  defendant  on  the  latter  agreeing  not  to 
bid  against  the  plaintiff  at  an  excise  auction  sues  to 
recover  the  amount  paid  by  him  and  the  defendant 
pleads  that  the  agreement  between  him  and  the 
plaintiff  was  illegal  under  s.  23  of  the  Contract  Act, 
the  burden  lies  on  him  to  show  that  it  was  intended 
by  the  JUT-^-M  --i1  to  effect  the  purpose  of  the  agree- 
ment by  illegal  means.  It  is  not  sufficient  for  him  to 
have  used  indefinite  expressions  when  demanding  the 
money  from,  the  plaintiff  and  then  to  ask  the  Court 
to  presume  that  he  had  intended  to  act  fraudulently 
or  otherwise  in  contravention  of  any  law  If  he  avoids 
pleading  his  own  fraud  he  cannot  ask  the  Court  to 
presume  that  lie  had  fraudulent  intentions  of  an 
unspecified  or  an  indefinite  kind  without  his  advanc- 
ing evidence  that  such  was  the  case.  To  refuse  relief 
to  the  plaintiff  under  such  circumstances  would  be  to 
encourage  fraud  and  trickery  of  a  different  kind  by 
a  person  who  had  done  nothing  illegal  except  possibly 
to  defraud  the  plaintiff  with  whom  he  entered  into 
an  agreement  of  an  indefinite  kind,  with  no  intention 
of  doing  anything  except  to  fraudulently  keep  the 
money  in  any  event,  [p  272,  cols.  1  &  2.] 

Second  appeal  against  a  decree  of  the 
District  Court,  Ma-ubin,  confirming  that  of 
the  Sub-Divisional  Court,  Ma-ubin. 

Mr.  Ochme,  for  the  Appellant. 

Mr.  Young,  for  the  Respondent. 

JUDGMENT.— This  is  a  second  appeal 
against  the  judgment  and  decree  of  the 
District  Court  of  Ma-ubin  confirming  the 
decree  of  the  Sub-Divisional  Court  of  Ma- 
ubin,  and  the  only  point  for  determination 
is  whether  the  decree  is  invalid  by  reason, 
of  the  fact  that  it  is  alleged  by  the  defend- 
ant that  the  object  of  the  alleged  agreement 
was  illegal,  •  and  that  the  t  con  tract  sued  on 
was  void  and  contrary  to  public  policy. 

The  plaint  alleged  that  the  plaintiff  is 
the  owner  of  the  Hlawza  shop  at  Ma-ubiu 
Town  ;  that  first  defendant  is  an  Honorary 
Magistrate  at  Ma-ubiq  and  a  Lugyi  of  the 
Chinese  Association  and  has  influence  over 
the  Chinese  Community  ;  that  second  defen- 
dant is  a  teacher  of  the  Chinese  school  in, 
Rangoon,  and  is  a  person  having  influence 
over  the  Chinese  people ;  that  in  the  yea? 


[92  I.  0.  1926]  MAUNG  SE1N  HTIN  V.  CHBB  PAN  NGAW. 

1922  plaintiff  purchased   the  licenses    for     denied  the  receipt  of 
Ma-ubin    and    Mezali  Hlawza    shops,  and 
joined  as  partner  in   the  Yele,   Kanwehabo 
and  Payagyidaung  shops  ;  that  the  licenses 
for  the  said  five  shops  were  proclaimed  for 
sale  by  auction  in    the    Deputy  Commis- 
sioner's Office,  Ma-ubin,  for  the  year  1923-24 
on  the    18th  April  1923 ;   that  on  the  17th 
April  1923  the  first  and  second  defendants 
came  to  the  plaintiff's  house  at   Ma-ubin 
and  asked  for  payment  of  a  total  sum  of 
Rs.  4,000— made  up  of  Rs.  2,000  for  Ma- 
ubin  Hlawza  shop,    Rs.   1,000  for  Mezdli 
shop,  Rs.  500  for  Payagyidaung  shop  and 
Rs.  500  for  Yele  shop ;  and    said   that  they 
would  not  bid  for  the  said  five  shops  ;  that 
they    would  prevent   others  from   bidding 
for  the  same,  and  that   they  would  return 
the  money,  if  there  was  no  reduction  in  the 
revenue,  and  if  there  was  an  increase  of 
revenue  as  other  persons  were  bidding  for 
the  same,    and    as  plaintiff  believed   the 
statements  made    by  the  defendants,    the 
plaintiff  gave  Rs.  4,OOU  to  the  defendants  ; 
that  on  the  18th  April  1923  when  there  was 
a  sale  by  auction  other  persons  came  ^  and 
bid  for  the  shops  in  question  and  plaintiff 
was  about  to  be  deprived  of  the  shops,  and, 
therefore,  he  had    to  purchase  licenses  for 
some  shops  at  a  reduced  rate  and  for  some 
shops  at  an  increased  rate  of  revenue  ;  that 
the  rates  were  as  follows  : — 

Ma-ubin  Shop  for  1923-24  Rs.  22,100  but 
for  1922-23'  Rs.  20,000  (an  increase  of 
Rs.  2,1CO) ; 

Mezali  Shop  for  1923-24    Rs.  3,050  but 

for  1922-23  Rs.  2,800  (an  increase  of  Rs.  250); 

Yele     Shop    for  1923-24    Rs,    6,250  but 

for  1922-23  Rs.  7,050  (a  decrease  of  Rs.  800); 
Kanwekabo  Shop  for  1*23-24,  the  plaintiff 

did  not  obtain  the  license. 
Payagyidaung  Shop  for  1923-24  Rs  5,000 

but  for  1922-23  Rs,  3,000  (an  increase    of 

Rs.  2,000); 
That  according  to  the  agreement  made 

by  the    plaintiff  and    the    defendants,    a 

demand  for  payment  of  Rs.  3,500  was  made 

after  leaving  aside  Rs.  500  for  Yele  Shop  ; 

that    first    defendant    returned     Rs.    500 

promising  that  the  balance    of    Rs.    3,000 

would  be  paid  when  second  defendant  came 

back  from  Pyapon  ;  that  on  several  occasions 

defendants  were    asked  to  pay   Rs.   3,000 

according  to  the  agreement,  but  in  vain  ; 

and     the    prayer     was   for     recovery    of 

Rs.  3,000. 

The  written  statement  of  the  first  defend- 
ant denied   the    alleged   agreement    and 


271 

Rs.  4,000  from  the 

plaintiff  and  denied  the  alleged  re-payment 
of  Rs.  50i)  and  promise  to  pay  the  balance  ; 
and  the  defendant  contended  that  the  suit 
is  not  maintainable  arid  the  money  is  not 
recoverable  as  it  is  paid  in  consideration  of 
the  promise  to  sacrifice  the  chance  of  pursu- 
ing one's  own  trade  and  to  deter  other 
competitors  from  .•*  :  \  :"•  .:  the  plaintiffs 
at  the  Government  lllawza  License  Auc- 
tion t3ale,  thus  inflicting  injury  on  the 
public  purse,  excluding  one  of  the  parties 
from  competitions  entirely  at  a  sacrifice  and 
restraining  another  from  pursuing  lawful 
trade,  thereby  rendering  the  said  agreement 
void,  being  ^fraudulent,  unlawful  and 
opposed  to  public  policy ;  that  the  defendant 
further  contended  that  the  plaintiff  sued 
the  defendant  just  to  enable  plaintiff  to 
defend  a  criminal  charge  of  defamation 
and  criminal  intimidation  instituted  by  the 
defendant  in  a  specified  prosecution.  The 
latter  had  reference  to  a  prosecution  in- 
stituted by  the  defendant  against  the 
plaintiff  for  calling  him  "  a  thief  "  in  con- 
nection with  this  transaction.  The  second 
defendant  raised  similar  legal  defences  and 
also  denied  the  allegations  of  fact. 

Both  the  lower   Courts    have  decided  all 
issues  of  fact  in  favour  of  the  plaintiff.    The 
learned  Sub-Divisional  Judge  also  decided 
the  legal  issue  as  to  "  whether  the  agree- 
ment was  fraudulent,  unlawful  or  opposed 
to  public  policy"  in  favour  of  the  plaintiff. 
He  disregarded  two  old  decisions  in  Upper 
Burma  and  followed  a  more  recent  decision 
of  a  Bench  of  the  late  Chief  Court  in  the 
case    of    Nagappa   Chetty  v.  Ah  Foke  (1), 
where  the  plaintiff  was  allowed   to  recover 
a  sum  of  money  which  had   been   deposited 
with    a    Chetty    to    be    paid    to    another 
Chinaman  if  certain  Hlawza  licenses  were 
sold  below  a  certain  price  and  on  agreement 
that  the   defendants  were  not    to  bid    for 
certain  licenses,    That  decision  was  based 
on  certain  English  decisions  and  also  follow* 
ed  the  Privy  Council  decision  in  Mahomed 
Mira  Ravuther  v   Savvasi  Vijaya  Raghuna- 
dha  (2).    The  learned  Trial  Judge  held  that 
the  facts    of  the  present    case   are    very 
similar  to  the  facts  of  the  case  in  the  Chief 
Court,  and  he  granted  the  plaintiff  a  decree 
with  costs. 

On  first  appeal  the  learned  District  Judge 

(1)  5C  Ind.  Gas.  963;  12  B.  L.  T.  241, 

m  23  M.  227;  27  I.  A.  17;  4  0.  W.  N.  228;  10  M.  L, 
J.  1;  2  Bom.  L.  R.  640;  7  Sar,  P,  0.  J.  661;  8  Ind.  Deo, 
(N.  s.)  561  (P.  0,;, 


272 


DITTU  RAM  V,  NAWAB. 


held  that  there  was  not  a  tittle  of  evidence 
that  Government  had  suffered  any  loss  of 
revenue  by  the  arrangement  made  between 
the  parties ;  and  that  it  is  evident  that 
defendants  did  not  or  could  not  induce  the 
other  intending  buyers  to  desist  from 
outbidding  the  plaintiff,  and  that  there  was 
no  combination  between  the  bidders  to 
curtail  the  bidding;  and  that  unless  and  un- 
til it  was  established  that  the  arrangement 
made  between  them  and  the  plaintiff  was 
an  artifice  to  defraud  Government  revenue, 
he  found  no  reason  for  allowing  them  to 
take  advantage  of  their  own  fraud,  thereby 
enabling  them  to  pocket  a  sum  of  Rs.  3,000, 
and  he  added  that  he  was  in  fall  agreement 
with  the  learned  Sub-Divisional  Judge  in 
following  the  decision  in  P.  M,  A.  Nagappa 
Chettiar  v.  Ah  Foke  (1). 

The  present  second  appeal  is  against  that 
decision.  It  is  admitted  that  an  agreement 
not  to  bid  is  not  illegal,  but  it  is  urged 
that  the  case  is  not  covered  by  the  deci- 
sions of  the  Privy  Council  and  of  the  late 
Chief  Court,  because  it  involves  the  £  "-Tj^r 
agreement  of  defendants  that  they  wouiu 
prevent  r^herd  from  bidding.  I  find,  huw- 
evcr,  ^hat  no  name  of  any  other  person 
was  mentioned  as  a  person  to  be  so  prevent- 
ed and  that  no  indication  is  given  as  to 
what  defendants  were  to  do,  and  that  it  is 
not  clear  what  the  defendants  really  con- 
templated when  they  used  the  original 
Chinese  or  Burmese  expressions  which  have 
been  so  translated. 

In  the  case  of  Mahomed  Mira  Ravuther 
v.  Savvasi  Vijaya  Raghunadha  (2),  their 
Lordships  of  the  Privy  Council  cited  their 
previous  decision  that  "all  purchasers  are 
bound  to  abstain  from  breaches  of  trust 
and  from  intimidation  or  falsehood  in  keep- 
ing off  bidders"  and  in  a  later  passage  they 
quote -the  finding  of  the  High  Court,  "The 
means  by  which  competition  was  discourag- 
ed at  the  auction  were  clearly  of  an  innocent 
character.  In  employing  them,  as  in  mak- 
ing the  agreement  with  the  zemindar,  the 
purchaser  did  not  go  bpyond  the  limit  of 
what  he  was  entitled  to  do  in  order  to  make 
a  good  bargain";  and  they  expressed  the 
view  that  such  findings  were  in  accordance 
with  the  view  pronounced  by  the  Board. 

I  think  that  if  the  defendants  in  this  case 
intended  to  show  that  the  contract  waa 
illegal  under  s.  23  of  the  Indian  Contract 
Act,  1872,  the  burden  lay  on  them  to  show 
clearly  that  it  was  intended  to  effect  the 
purpose  by  illegal  meane,  and  that  it  is  not 


[92  I.  0.  1926J 

sufficient  for  them  to  have  used  indefinite  ex- 
pressions when  demanding  the  money  from 
the  plaintiff  and  then  to  ask  the  Court  to  pre- 
sume that  they,  defendants,  had  intended  to 
act  fraudulently,  illegally  or  otherwise  in  con- 
travention of  any  law.  The  defendants  avoid 
pleading  their  own  fraud,  but  they  ask  the 
Court  to  presume  that  they.,  the  defendants, 
had  fraudulent  intentions  of  an  unspecified 
or  indefinite  kind  without  their  advancing 
any  evidence  that  such  was  the  case.  To 
refuse  plaintiff  relief  under  such  circum- 
stances would  be  to  encourage  fraud  and 
trickery  of  a  different  kind  by  persons  who 
intended  nothing  illegal  except  possibly  to 
defraud  the  person  with  whom  they  were 
entering  into  agreements  of  an  indefinite 
kind,  with  no  intention  of  doing  anything 
except  to  fraudulently  keep  the  money  in. 
any  event. 

For  the  above  reasons,  I  see  no  reason,  to 
disagrree  with  the  decisions  of  the  lower 
Courts,  and  I  dismiss  this  second  appeal 
with  costs. 

z,  K,  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

CIVIL  REVISION  No.  219  OF  1925. 

June  26,  1925. 

Present;— Sir  Shadi  Lai,  KT.,  Chief  Justice. 
DITTU  BAM— PLAINTIFF— PETITIONER 

versus 
NAWAB — DEFENDANT — RESPONDENT. 

Limitation  Act  (IX  of  1908),  Sch.  I,  Art.  1(H— 
Civil  Procedure  Code  (Act  V  of  1908),  0.  V,  r.  20, 
0.  IX,  r.  13  —  Kx  parte  decree,  application  to  set  aside, 
—  Service  of  summons— Substituted  service— Limitation 
— Burden  of  proof. 

Article  164  of  Sch.  I  to  the  Limitation  Act  pre- 
scribes a  period  of  thirty  days  for  an  application  to 
set  aside  an  ex  parte  decree,  and  the  terminus  a  quo 
is  the  date  of  the  decree,  or,  where  the  summons  was 
not  duly  served,  the  date  on  which  the  applicant  has 
knowledge  of  the  decree,  [p.  273,  col,  1.] 

In  the  case  of  substituted  service  effected  by  order 
of  the  Court,  the  summons  must  be  deemed  to  be 
duly  served  for  the  purpose  of  Art.  164  of  Sch.  I  to 
th«  Limitation  Act,  even  though  it  does  not  in  fact 
come  to  the  defendant's  knowledge,  [ibid. } 

Where  the  summons  is  not  duly  served  on  the 
defendant,  the  terminus  a  quo  for  an  application  to  sot 
aside  an  ex  parte  decree  is  the  date  on  which  the 
defendant  has  knowledge  of  ths  decrea,  and  the 
burden  lies  upon  him  to  show  that  his  application  is 
within  time,  [ibid.] 

Petition,  under  s,  44  of  Act  IX  of  1919,  for 
revision  of  an  order  of  the  Subordinate 
Judge,  Fourth  Class,  Jhang,  dated  the  10th, 


HAZURA  UAL  LAL  CHAMD  V.  RANG  1LAHI. 


[92  I.  0.  1926J 

February  1H25,  reversing  that  of  the  Munsif, 
First  Class,  Jhang,  dated  the  31st  October 
1917. 

Mr.  M.  L.  Purl,  for  the  Petitioner. 

Malik  Ram  Lai,  for  the  Respondent. 

JUDGMENT.— On  the  3ist  of  October 
lyl7  an  ex  parte  decree  was  passed  against 
the  defendant,  and  it  was  not  until  the 
25th  of  August  1924  (nearly  seven  years 
after  the  date  of  the  ex  parte  decree)  that 
the  defendant  made  an  application  for  an 
order  to  set  aside  the  ex  parte  decree.  The 
Subordinate  Judge  has  granted  the  applica- 
tion without  considering  the  question  whe- 
ther the  application  was  or  was  not  barred 
by  time. 

Now,  Art.  164  of  the  Indian  Limitation 
Act  prescribes  a  period  of  thirty  days  for 
an  application  of  this  character,  and  the 
terminus  a  quo  is  the  date  of  the  decree, 
or,  where  the  summons  was  not  duly  served, 
the  date  on  which  the  applicant  has 
knowledge  of  the  decree.  Now,  the  learn f  d 
Judge,  who  passed  the  ex  parte  decree, 
had  after  satisfying  himself  that  the  defend- 
ant was  keeping  out  of  the  way  for  the 
purpose  of  avoiding  service  directed  that 
substituted  service  should  be  effected  as 
prescribed  by  O.  V,  r  20,  C.  P.  0.,  and  this 
order  was  duly  carried  out.  Sub-rule  (2) 
of  that  rule  prescribes  that  service  sub- 
stituted by  order  of  the  Court  shall  be  as 
effectual  as  it  had  been  made  on  the  defen- 
dant personally.  There  can  be  no  doubt 
that  in  the  case  of  substituted  service  a 
summons  is  duly  served  for  the  purpose  of 
Art.  164  even  though  it  does  not  in  fact 
come  to  the  defendant's  knowledge;  and  that 
time  runs  from  the  date  of  the  decree.  The 
application  for  setting  aside  the  ex  parte 
decree  was  made  after  the  expiry  of  thirty 
days  from  the  date  of  the  decree,  and  was 
clearly  barred  by  time, 

Assuming,  for  the  sake  of  argument,  that 
the  summons  was  not  duly  served  on  the 
defendant,  the  terminus  a  quo  is  the  date 
on  which  the  defendant  has  knowledge  of 
the  decree  and  it  is  clearly  for  him  to  show 
that  his  application  was  within  time.  Now, 
the  plaintiff  made  several  applications  for 
executing  his  decree,  and  there  is  abundant 
evidence,  both  oral  and  circumstantial,  to 
the  effect  that  the  defendant  had  know- 
ledge 6f  the  decree  more  than  thirty  days 
before  the  date  on  which  he  made  his 
application.  The  application  is  hopelessly 
barred  by  time,  and  the  Subordinate 
Judge  was  entirely  wrong  in  re- opening 

18 


273 

the  case  after  the  expiry  of  several  years 
on  the  ground  that  "as  ordinarily  the  suits 
should  be  d'icided  on  the  merits  a  lenient 
altitude  lias  to  be  taken  in  cases  where  the 
defendant  is  nob  personally  served.11 

Fur  the  aforesaid  reasons  I  accept  th"e 
application  for  revision  with  costs  and  din- 
charge  the  order  of  the  lower  Court  settilig 
aside  the  decree. 

55.  K.  Application  accepted. 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  FIKST  APPEAL  No.  1955 

OF  ig24. 

January  20,  1925. 

Present; — Mr.  Justice  Campbell. 

THE  FIRM  HAZURA  MAL-LAL  CHAND 

THROUGH  LAL  CHAND— PLAINTIFFS — 

APPELLANTS 

verstfs 

RANGILAHI  AND  OTHERS— DEFENDANTS- 
RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  20- Suit  by 
commission  agent --Jurisdiction. 

A  suit  by  a  commission  agent  against  his  principal 
for  balance  due  on  accounts  i'an  be  entertained  by  a 
Court  having  jurisdiction  at  thp  place  wheio,  in  com- 
pliance with  the  principal's  orders,  the  commission 
is  executed  [p  274,  col  l.| 

Motilal  Pratabchand  v.  Surajmal  Joharmal,  30  B. 
107,6  Bom  L  R  1038,  explained. 

Miscellaneous  first  appeal  from  an  order 
of  the  Senior  Subordinate  Judge,  Mont- 
gomery, dated  the  9th  July  1924. 

Dewan  Mehr'Chand,   for  the    Appellants'.- 

JUDGMENT.-  The  two  Appeals  Kos: 
1955  and  1956  of  1924  can  be  disposed  of 
conveniently  inoae  .;':••! L*:^1.'^ 

There  were  two  suits  by  different  plaint- 
iffs against  the  same  defendants  Rang  Ilahi 
and  others,  alleged  to  be  the  former  proprie- 
tors of  a  defunct  firm  in  Kasur.  The  plaint- 
iffs in  one  case  were  Ruchi  Ram-Khan 
Chand  of  Kamalia  in  the  Montgomery  Dis- 
trict and  in  the  6ther  Haizura  Mal-Lfel 
Chand  of  Okara  in  the  same  District.  In 
each  case  the  plaintiffs  said  that  they  were 
employed  by  the  late  firm  of  the  defendants 
as  commission  agents  to  purchase  in  the 
Montgomery  District  cot  ton1,  grain,  etc.,  and 
i*.»  '.((•-iKiiHi  ii  !<>  Kasur.  In  one  case  th6 
l^luinti  T-  all< 'w\d  thata  deposit  of  Rs.  200 
had  been  made  with  them  apd  paid  at  their 
shop  at  Kamalia  by  the  defendants  and  in 
the  other  case  a  similar  deposit  of  Rs.  2,000 


274 


KDfiR  V.  SHAM  LAL  8AHU. 


[92 1  0, 1926J 


was  stated  to  have  been  made.    Both  suits 
were  for  a  balance  due  on  accounts. 

One  of  the  defendants  admitted  in  each 
case  the  dealings  alleged  by  the  plaintiffs 
and  did  not  deny  the  deposits  but  he  also 
pleaded  that  the  Montgomery  Courts  had 
no  jurisdiction.  .The  learned  Senior  Sub- 
ordinate Judge  proceeded  to  try  this  issue 
purely  on  the  question  of  the  place  at  which 
payment  by  the  Kasur  firm  was  to  have 
been  made.  After  discussing  certain  evi- 
dence he  concluded  that  there  had  been  a 
special  agreement  in  each  case  that  payment 
to  the  plaintiffs  was  to  be  made  at  Kasur  in  the 
Lahore  District,  the  home  of  the  defendants, 
and  from  this  fact  he  proceeded  to  lay  down 
a  rule  "in  cases  between  commission  Jiujoii!.- 
and  principals  when  money  is  spioiiii'aily 
agreed  to  be  paid  at  a  place  the  claims  are 
to  be  entertained  only  by  those  Courts  hav- 
ing jurisdiction  at  that  place/'  As  authority 
for  this  proposition  he  has  relied  upon 
Motilal  Pratabchand  v.  Surajmal  Joharmal, 

(1). 

Section  20,  however,  of  the  0.  P.  C.  enacts 
that  a  suit  may  be  instituted  in  a  Court 
within  the  local  limits  of  whose  jurisdiction 
the  cause  of  action  wholly  or  in  part  arises. 
The  expression  ucause  of  action11  is  defined 
in  Motilal  Pratabchand  v.  Surajmal  Johar- 
mal  (1)  the  ruling  which  the  learned  Senior 
Subordinate  Judge  has  cited,  as  the  bundle 
of  facts  which  it  is  necessary  for  the  plaintiff 
to  prove  before  he  can  succeed  in  his  suit. 
The  learned  Judge  who  decided  that  case 
after  laying  down  this    definition  proceed- 
ed   to    explain  what  the  bundle  of  facts 
must  contain  in  a  suit  between  a  principal 
and  commission    agent.    In  that  case  the 
principal  was  the  plaintiff  and  the  commis- 
sion agent  was  the  defendant.    It  was  ex- 
plained that  the  plaintiff    had  to  establish 
that  he  gave  certain  instructions  to  the  de- 
fendant as  his  commission  agent,  that  those 
instructions  duly   reached  the  defendant, 
tTiat  the  defendant  executed  the  commission 
with  which  he  was  charged,  that  the  defend- 
ant was  bound  to  render  an  account,  etc:. 

In  the  present  case  the  plaintiffs  had  to 
prove  inter  alia  that  they  received  a  com- 
mission from  the  defendants  and  that  they 
executed  it.  That  commission  was  the  pur- 
chase of  cotton,  etc.,  in  the  Montgomery 
District  and  their  alleged  purchaseof  these 
goods  in  compliance  with  the  defendants* 
orders  was,  therefore,  part  of  their  cause  of 

(1)  30  B,  167;  6  Bom,  L.  K.  1038, 


action.  What  the  learned  Senior  Subordi- 
nate Judge  has  really  been  at  pains  to  do 
is  to  demonstrate  that  the  suits  could  also  be 
brought  in  a  Court  in  the  Lahore  District. 
To  establish  this  fact  does  not  lead  to  the 
conclusion  that  the  Court  of  no  other  district 
has  jurisdiction,  for  it  is  a  common  pheno- 
menon for  a  suit  to  be  capable  of  institu- 
tion in  more  than  one  district.  The  learned 
Senior  Subordinate  Judge's  own  Court  has 
also  jurisdiction  since  the  alleged  causes 
of  action  arose  partly  in  the  Montgomery 
District. 

I  accept  both  appeals  with  costs  and  set 
aside  the  orders  returning  the  plaints  lor 
presentation  to  the  proper  Court.  They 
will  be  received  back  by  the  learned  Senior 
Subordinate  Judge  and  the  suits  be  proceed- 
ed with. 

N.  H.  Appeals  accepted. 


PRIVY    COUNCIL. 

APPEAL  FROM  THE  PATNA  HIGH  COURT. 

July  27,  1925. 

Present: — Lord  Shaw,  Lord  Blanesburgh, 
Sir  John  Edge  and  Mr.  Ameer  Ali. 
Musammat  NAG  KUER-— APPELLANT 

versus 

SHAM  LAL  SAHU  J»ND  OTHERS— 
RESPONDENTS, 

Partnership,  dissolution  of — Accounts,  mode  of 
— Partnership  moneys  appropriated  by  one  partner — 
Procedure, 

Where  a  partner  takes  moneys  of  the  parntership 
out  of  the  partnership  business  and  appropriates  them 
to  his  own  use,  ho  must,  on  accounts  being  taken, 
be  charged  with  the  sums  withdrawn  b;  1,i  :  •.-  \f  ;i.t< 
partnership  assets  m  his  hands  with  :"<>r  ,  in1  s:.- 
tereat  thereon  from  the  dates  of  withdrawal,  [p.  277, 
col.  2  ] 

In  such  a  case  where  it  is  found  that  the  balance 
of  the  cash  capital  of  the  partnership  is  not  sufficient 
to  satisfy  the  claims  of  the  remaining  partners  with 
regard  to  the  contributions  made  by  them  towards 
capital,  the  proper  procedure  is  to  appoint  a  Receiver 
of  partnership  assets,  to  direct  him  to  proceed  with 
the  collections  of  the  outstanding  debts  ot  the  partner- 
ship and  to  declare  that  such  receipts  should  be  em- 
ployed first  towards  the  discharge  of  all  outside 
liabilities,  costs  and  expenses  and  then  towards  the 
satisfaction  of  the  respective  claims  on  capital  account 
of  the  partners.  It  is  not  proper  in  such  a  case  to 
credit  the  .partner  who  has  appropriated  the  partner- 
ship moneys  with  the  receipt  of  such  moneys  and  to 
require  other  partners  to  accept  book-debts  due  to  the 
partnership  in  lieu  of  their  claims  on  the  capital 
account.  [ibid.\ 

Messrs,  A.  M.  Dunne,  K.  C,,  and  W.  Wai- 
lack,  for  the  Appellant 
Mr,  S,  Hyamt  for  the  Respondents, 


NAG  KUBR  V.  SHAM  UtiSAHU. 


[9MXJ.  19S6J 

JUDGMENT. 

Lord  Blanesburgh. — The  question 
now  before  the  Board  arises  in  the  course  of 
a  suit  for  dissolution  of  a  partnership  firm. 
The  suit  has  been  pending  in  the  first 
Court  of  Gaya  since  the  2nd  February 
1915. 

The  firm's  business  was  that  of  tobacco 
manufacturers,  and  at  the  commencement 
of  the  suit  the  partners  in  it  wero  the 
plaintiff,  Bishun  Ram,  entitled  to  a  10  anna 
share  of  profits,  and  the  defendant,  Bundi 
Lall,  entitled  to  a  6  anna  share  There 
were  four  branches  of  the  business  in  differ- 
ent parts  of  India.  The  partnership  was 
governed  by  a  deed  of  the  2nd  August  1905 
under  which  the  management  was  vested 
in  Bishun  Ram,  and  there  was  a  stipulation 
for  annual  accounts.  Interest  on  capital 
contributed  was  allowed  at  y  per  cent,  and 
each  partner  was  at  liberty  to  add  his  pro- 
fits to  his  capital  if  he  so  desired. 

Out  of  the  profits  of  the  business  certain 
house  properties  had  been  from  time  to  time 
purchased  by  the  firm,  and  it  seems  that 
these  were  left  in  the  several  possession 
of  the  partners  according  to  their  respective 
share  in  profits.  Probably  for  this  reason, 
possibly  also  because  Bundi  Lall's  propor- 
tionate interest  in  capital  was  by  this  time 
much  greater  than  his  interest  in  profits, 
a  serious  difference  arose  in  the  course  of 
the  proceedings  upon  the  question  whether 
in  the  final  division  these  properties  were 
to  be  specifically  divided  between  the  part- 
ners in  the  proportion  of  10  to  6,  or 
whether,  like  other  partnership  assets,  they 
could  be  made  available  first  to  satisfy  the 
partners'  claims  on  capital  account.  That 
question  still  lies  at  the  root  of  the  present 
appeal,  but  so  far  as  it  turns  upon  the  con- 
struction of  the  partnership  deed  their 
Lordships  accept  the  view  taken  of  it  by 
the  High  Court  at  Patna.  They  are  satisfied 
that  thereunder  these  houses  are  .partner- 
ship assets  burdened  with  the  liabilities  of 
the  partnership  whether  to  outsiders  or  to 
the  partners.  It  is  only  after  all  such 
liabilities  have  been  adjusted  and  in  full—- 
with recourse,  if  necessary,  to  the  houses 
for  the  purpose — that  they,  or  such  of  them 
as  then  remain  available,  will  be  distribut- 
able as  surplus  assets  between  the  part- 
ners severally  and  in  proportion  to  their 
shares  in  profits,  Their  Lordahips,  how- 
ever, do  not  fail  to  recognise  that  it  was  a 
desire  shared  by  both  partners  that  these 


275 


houses  should  be  the  last  assets  to  be  re- 
sorted to  for  discharge  of  partnership 
liabilities,  and  they  see  in  a  provision  of  the 
preliminary  decree  in  the  suit  to  which, 
with  gome  observations  as  to  its  true  effect, 
they  will  call  attention  in  the  sequel,  some 
fulfilment  of  that  desire. 

The  accounts  between  the  partners  were 
not  taken  annually.  The  last  one  takon  and 
adjusted  before  action  covered  the  period 
prior  to  the  20th  October,  1911  From  that 
account  it  appeared  that  there  had  been 
contributed  by  the  plaintiff  to  the  partner- 
ship on  capital  account  Us,  43.039  2  9,  and 
by  the  defendant  Us  40,781)-U-U.  The 
position  in  this  respect  changed  further  in 
favour  of  the  defendant  be  fere  the  com- 
mencement of  the  suit.  It  now  appears  that 
by  that  time  his  capital  claims  exceeded  in 
amount  those  of  the  plaintiff  on  any  view  of 
the  position. 

The  suit,  as  has  been  said,  was  commenc- 
ed on  the  2nd  February  1915.  On  the  7th 
April  1915,  Bundi  L'lll,  the  defendant,  died 
and  the  suit  was  theieafter  continued 
against  his  legal  representatives,  the  pre- 
sent respondents.  To  them  their  Lord- 
ships will  refer  as  the  defendants. 

In  March  of  the  following  year  the  de-* 
fendants  applied  for  the  appointment  of  an 
independant  Receiver,  The  Court  on  that 
occasion  refused  to  displace  the  plaintiff 
from  his  position  of  management  under  the 
partnership  deed,  but  appointed  him  to  be 
Receiver  and  manager  pcndente  lite  without 
remuneration  and  without  security,  and 
directed  him  to  submit  his  accounts  e\ery 
month. 

The  responsibilities  of  hisollicc  laj  lightly 
upon  the  plaintiff,  and  many  of  the  sub- 
sequent difficulties  in  the  case,  including 
that  with  which  their  Lordships  are  now 
concerned,  are  attributable  to  two  unauthor- 
ised, and  so  far  as  appears  inexcusable, 
acts  on  his  part  committed  while  Receiver. 
Without  leave  of  the  Court  or  consent  of 
parties  he  withdrew  from  the  partnership 
funds  in  his  hands  as  such  Receiver,  fiist,  a 
sum  of  Rs.  22,049  4-7i,  and  later,  one  of 
Rs.  5,500,  and  although  subsequently  order- 
ed on  several  occasions  to  pay  over  these 
moneys,  he  failed,  except  to  the  extent  of 
Rs.  2,000,  to  do  so,  with  the  result  that 
Rs.  25,549  4-7^— now  an  adjusted  balance 
of  Rs.  24,345 — if  not  long  ago  applied  to 
his  own  purposes,  has  remained  in  his 
hands,  or  since  his  death,  which  has  now 


276 


NAO  KtJER  V,  SHAM  LAL  SAHU. 


[92  I.  0. 19261 


occurred,  in  the  hands  of  his  legal  repie- 
sentativea,  the  present  appellants. 

Their  Lordships  desire  at  once  to  asso- 
ciate themselves  with  the  observations  upon 
these  withdrawals  made  by  the  learned 
Judges  of  the  Court  at  Patna  in  the  judg- 
ment here  under  appeal.  Like  them,  their 
Lordships  see  in  the  comparative  inaction 
of  the  first  Court  of  Gaya,  when  the  plaint- 
iff's grave  misconduct  was  brought  to  its 
notice,  a  failure  to  appreciate  the  extreme 
seriousness  of  what  the  plaintiff  had  done. 
Their  Lordships  see  indications  of  the  same 
want  of  appreciation  in  the  readiness  of 
that  Court  in  later  orders  to  condone  the 
plaintiff's  unauthorised  letentions  by  treat- 
ing them,  without  even  any  charge  for 
interest,  as  being  in  account  with  the  de- 
fendants both  regular  and  final.  In  truth, 
the  action  of  the  plaintiff  in  this  matter, 
fully  acknowledged  and  neither  explained 
nor  excused,  amounted  to  a  breach  of  duty 
as  serious  in  character  as  any  that  can  be 
committed  by  an  officer  of  the  Court  in  his 
position.  It  ought  not  to  have  been  over- 
looked to  any  degree  by  any  Court  jealous 
of  its  responsibility  for  the  actions  of  its 
own  officers. 

The  suit  came  on  for  tri$l  in  August, 
1916.  Many  issues  were  framed  and  fought, 
but  no  further  reference  thereto  need  now 
be  made.  In  the  result,  on  the  15th  August, 
1916,  the  then  Subordinate  Judge  of  Oaja 
made  a  preliminary  decree  declaring  the 
respective  interests  in  profitsof  the  partners 
as  above  stated,  dissolving  the  partnership 
as  from  the  7th  April,  1915,  the  date  of  the 
defendant,  Bundi  Lall's  death,  appointing 
Balin  Durga  Prasad  in  place  of  the  plaint- 
iff to  "be  the  Receiver  of  the  partneiship 
estate  and  effects  in  this  suit  and  to  get  in 
all  the  outstanding  book  debts  and  claims 
of  the  partnership,"  directing  the  usual  dis- 
solution accounts,  that  of  the  dealings  and 
transactions  between  the  partners  to  be 
taken  as  from  the  20th  October,  19il,  the 
date  of  the  account  already  mentioned.  The 
decree  then  proceeded  as  follows  (this  is  the 
passage  already  above  referred  to): 

"It  is  further  ordered  that  the  goodwill 
of  business  heretofore  carried  on  by  the 
parties  and  the  stock-in-trade  be  sold  on 
the  premises.  Saving  the  houses  and  land- 
ed property  for  being  divided  as  directed 
above"— that  is,  in  the  proportion  of  10  to  6, 

And  a  Commissioner  was  appointed  to 
take  and  certify  the  accounts. 

Jsotwithetandicg  the  direction  given  by 


this  order  to  the  Receiver  to  get  in  the  out- 
standing book  debts  of  the  partnership,  no 
steps  were  apparently  taken  by  him  to  do 
so,  and  the  Commissioner  in  his  report, 
made  after  prolonged  enquiry  and  dated 
the  9th  February,  1918,  found  the  total 
assets  of  the  partnership,  excluding  house 
property,  to  amount  to  Rs>.  67,64 1-6-1  £, 
consisting  as  to  more  than  Rs.  40,000  of 
book  debts  still  outstanding.  The  house 
properties— 19  in  number— were  severally 
valued  by  the  Commissioner  at  sums 
amounting  in  all  to  Rs.  57,300,  and  on  the 
footing  that  the  other  assets  of  the  partner- 
ship as  above  stated  would  suffice  to 
satisfy  all  its  liabilities  both  to  outsiders 
and  to  the  partners  on  capital  account,  he 
proposed  to  partition  these  19  properties 
between  the  partners  or  their  representa- 
tives in  proportion  to  their  shares  in  profits 
awarding  to  the  plaintiff  properties  valued 
at  Rg».  35, 81 2- 8  and  to  the  defendants  pro- 
perties valued  at  Rs.  21,487*8, 

In  arriving  at  the  figure  of  Rs.  67,641-6-1^ 
as  the  value  of  the  remaining  assets  of 
the  firm,  the  Commissioner  included  noth- 
ing in  respect  of  the  sums  withdrawn  by 
the  plaintiff  as  above  stated.  It  did  not 
apparently  occur  to  him  to  treat  these  sums 
as  a  partnership  asset  in  the  plaintiff's 
hands  for  which,  with  or  without  interest, 
he  was  accountable  to  the  firm.  He  re- 
garded them  as  proper  receipts  in  respect 
of  capital,  merely  operating  a  reduction 
pro  tanto  of  his  claim  against  the  assets  On 
that  account. 

And  the  Subordinate  Judge  Of  the  first 
Court  of  Gaya,  by  his  final  decree  of  the 
17th  August,  1917,  which  it  is  the  purpose 
of  the  present  appeal  to, have  restored,  con- 
filmed  the  Commissioner's  report.  He,  too, 
treating  the  sum  retained  by  the  plaintiff  as 
a  receipt  on  account  of  capital,  provided 
for  discharge  of  the  balance  a  bum  which 
as,  subsequently  adjusted,  was  Rs.  9,713-2-0 
by  directing  that  Rs.  3,791- ll-ll'|  was  to 
be  paid  him  by  the  Receiver  out  of  cash  in 
his  hands  and  Rs.  5,921  6-l£  by  the  ap- 
propriation to  him  of  book  debts  6f  that 
amount  due  to  the  firm.  To  the  deffcndafotfe, 
on  the  other  hand,  the  learned  Jtidge 
allocated,  in  respect  of  their  ascertained 
capital  in  the  business  a  net  amount,  as 
subsequently  corrected  and  adjusted,  of 
Rs,  43,903-9-U  by  directing  that  Rs,$,5*3-*-0 
was  to  be  paid  them  by  the  Receiver  fax 
cash,  while  the  residue  of  Rs,  34,380-7-lJ 
was  to  be  satisfied  by  the  appropriation  to 


NAG  KUBR  V.  SHAM  LAL  SAHU. 


[92 1.  0. 192«] 

them    of  the  remaining  uncollected   book 
debts  of  that  nominal  value. 

Against  the  order  of  the  Subordinate 
Judge  the<defendants  appealed  to  the  High 
Court  of  Judicature  at  Patna.  Their  prin- 
cipal grievance— that  with  which  alone  their 
Lordships  are  now  concerned — was  that 
while  the  plaintiff  had  ,  been  permitted  to 
retain  cash  in  respect  of  over  Rs.  24,000 
pf  hiscapital,  he  was  now  allowed  in  respect 
of  the  balance  a  further  sum  of  over 
Rs.  3,700  in  cash  and  was  required  to  accept 
tto  more  than  Rs.  5,921  of  his  entire  claim 
in  book  debts,  the  defendants  were,  in  res- 
pect of  as  much  as  Rs.  43,903  of  their 
capital,  required  to  accept  book  debts, 
which  as  they  asserted  were  "bad,  mostly 
barred,  and  not  at  all  recoverable.'1 

The  High  Court  on  this  point  agreed  with 
the  defendants.  The  learned  Judges  of 
tliat  Court  in  their  judgment  of  the  4th 
May,  1921,  held  that  as  the  plaintiff  had 
received  in  cash  a  sum  which  they  adjusted 
as  being  Rs.  24,345,  the  defendants  should 
receive  a  similar  amount  in  cash  before 
there  was  any  further  receipt  by  the  plaint- 
iff, and  the^y  accordingly  made  a  decree 
which  contained  the  following  clause: — 

"The  first  direction  must  be  to  pay  to  the 
defendants  towards  the  amount  due  to  them 
as  capital  Rs.  24,345  in  cash,  if  there  is  cash 
in  hand  to  that  amount,  and,  if  not,  in  cash 
and  house  property.  The  balance  of  his 
capital  still  due  to  the  plaintiff  and  the 
balance  then  due  to  the  defendants  will  be 
paid  in  house  property.  The  plaintiff  will 
get  10/16  and  the  defendant  will  get  6/16  of 
the  house  properties  remaining  after  re-pay- 
ment of  capital  and  of  the  debts  due  to  the 
firm/1 

The  last  sentence  in  this  clause  is  not 
intelligible  to  their  Lordships.  There  must, 
they  think,  be  a  typist's  error  somewhere. 
While,  however,  this  seems  to  be  so,  their 
I^ordships  cannot  escape  the  impression — 
and  it  is  convenient  to  indicate  it  now— that 
the  learned  Judges  of  the  High  Court,  while 
fully  consciQus  that  there  were  uncollected 
b;>ok  debt.*  iiiui  'fact  is  referred  to  in  the 
orfil  judgment  of  Ross,  JM — did  not,  appar- 
ently any  more  than  did  the  Subordinate 
Judge,  intend  that  these  should  be  collected 
and  applied  so  far  as  they  would  go  in  dis- 
charging partnership  liabilities.  Their 
intention  apparently  was  to  throw  any  other- 
wise unsatisfied  portion  of  these,  in  the  first 
instance,  at  all  events,  upon  the  house  pro- 
TO  this  point  their  Lordships  will 


277 


recur.  Against  that  order  of  the  High 
Court  the  legal  representatives  of  the  plaint- 
iff— he  is  now  dead — now  appeal.  They 
insist  that  the  order  of  the  Subordinate 
Judge  of  the  17th  August,  1917,  should  be 
restored.  They  contend  that  there  was 
ample  jurisdiction  to  require  the  defendants 
to  accept  in  satisfaction  of  their  capital 
claims  uncollected  book-debts  of  any 
amount,  and  they  say  that  even  if  this  be 
not  so,  still  by  the  deed  of  partnership,  and 
if  not  then  by  the  preliminary  decree  in  the 
suit  from  which  there  has  been  no  appeal, 
the  house  property  is  destined  for  division, 
as  it  was  in  the  result  divided  by  the  Com- 
missioner and  Subordinate  Judge  irrespect- 
ive of  the  question  whether  the  claims  'of 
the  partners  in  respect  of  capital  had  been 
so  satisfied  or  not. 

Their  Lordships  cannot  agree.  In  their 
judgment  it  was  entirely  improper  to  dis- 
tribute the  assets  in  the  way  directed  by  the 
Subordinate  Judge.  The  strict  order,  they 
think,  would  have  been  one  charging  the 
plaintiff  with  the  sums  withdrawn  by  him 
as  being  partnership  assets  in  his  hands 
with,  they  should  have  thought,  at  least 
mercantile  interest  from  the  dates  of  with- 
drawal. No  claim  has,  however,  been  made 
against  the  plaintiff  for  interest,  and  their 
Lordships  say  no  more  about  that.  A  strict 
order  would  then  have  directed  the  Receiver 
to  proceed  with  the  collection  of  the  out- 
standing debts  in  obedience  to  the  order  of 
the  15th  August,  1916,  and  would  have  de- 
clared that,  subject  to  the  discharge  of  all 
outside  liabilities,  costs  and  expenses,  the 
sam  so  realized  ought  to  be  applied  as  far 
as  it  would  extend  in  satisfaction  of  the 
respective  claims  on  capital  account  of  the 
plaintiff  and  defendants,  any  deficiency 
being  made  good  out  of  the  house  proper- 
ties as  now  directed  by  the  High  Court. 
As  their  Lordships  have  already  said,  they 
can  see  in  the  partnership  deed  no  founda- 
tion for  the  appellant's  present  contention, 
while  as  to  the  direction  in  the  preliminary 
decree,  it  amounted  to  no  more  than  this: 
that  the  house  properties  were  the  last  of 
the  assets  to  be  resorted  to  for  the  discharge 
of  partnership  liabilities  to  the  intent  that 
they  might  so  fur  as  was  possible  remain 
for  appropriation  between  the  partners  in 
specie  and  as  profits. 

While,  however,  their  Lordships  can  see 
no  foundation  fpr  the  appellant's  appeal  on 
the  grounds  on  which  it  was  pressed,  they 
think,  for  reasons  already  indicated,  that 


278 


MURAD  BIB!  V.  AMIR  HAM2A, 


[92 1.  0. 


the  clause  in  the  order  appealed  from,  above 
Bet  forth,  does  not  give  full  effect  to  the 
preliminary  decree,  and  that  clause  should, 
in  their  judgment,  be  somewhat  varied. 
They  think  the  clause  should  read  as  follows 
(their  Lordships  retain  the  phraseology  of 
the  High  Court):  — 

"The  first  direction  mustbe  to  the  Receiver 
to  get  in,  so  fur  as  they  now  subsist,  the 
outstanding  book-debts  as  directed  by  the 
order  of  the  15th  August,  1916,  with  full 
power  to  him  to  agree  for  the  sale  of  any 
particular  debt  or  debts  to  either  of  the 
parties  for  such  consideration  as  he  shall  in 
each  case  consider  adequate.  The  next 
direction  must  be  to  pay  to  the  defendants 
towards  the  amount  due  to  them  as  capital 
Rs.  24,345  in  cash  if  the  cash  so  collected, 
and  in  hand  and  available  for  the  purpose  is 
suflicient,  and  if  not,  then  in  cash  and  house 
property.  The  balance  of  his  capital  still 
due  to  the  plaintiff  and  the  balance  then 
due  to  the  defendants  will  be  paid  in  cash 
or  house  property,  or  partly  in  one  way  and 
partly  in  the  other.  The  plaintiff  will  get 
10/lCth  and  the  defendants  6/16th  of  the 
house  property  io!ii:-ii:i:njj  after  re-payment 
of  the  capital  and  all  other  liabilities  of  the 
firm." 

Their  Lordships  think  that,  with  those 
variations  in  the  clause  referred  to/the 
decree  of  the  Hi#h  Court  should  be  affirm- 
•  cd.  The  vaiiations,  in  their  judgment, 
ought  nut  to  affect  the  costs  of  this  appeal. 
These  the  appellant  must  pay. 

Their  Lordships  will  humbly  advise  His 
Majesty  accordingly. 

z  K.  Decree  affirmed. 

Solicitor  for  the  Appellant: —Mr.  Hy.  S. 
11.  Polak. 

Solicitors  for    the  Respondents:— Messrs. 
)  lingers  <£  Nevill. 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  386  OF  1919. 

December  23,  19.4. 
Present : — Justice  Sir  Henry  Scott-Smith, 

KT  ,  and  Mr.  Justice  Fforde. 
Musammat  MURAD  B1B1  AND  ANOTHER 

—  I  EFHM>ANTS— : APPJaJLLAN J8 

versus 

AMIR  HAMZA  AND  ANOTHER— PLAINTIFFS 
— RESPONDENTS. 

Custom -Inheritance  —  Daughters  v.  Collateral* — 
Multazai  Pathans  of  Basti  Mithu  Sahib  in  Jullundvr 
Diltrwt* 


Among  Muttazai  Pathans  of  Botti  Mithu  Sahib,  a 
suburb  of  Jullundur  City,  a  daughter  does  not  in- 
herit in  the  presence  of  brothers  or  near  collaterals 
of  the  last  male  owner,  [p  282,  col.  2.] 

Civil  Appeal  No.  1404  of  1899  dated  27th  November 
1905  and  Nizam  Din  v.  Fauja,  68  P.  R  1889,  referred  to. 

The  Muttazai  Pathans.  of  Basti  Mithu  Sahib  are 
presumably  governed  by  agricultural  custom,  and  the 
onus  to  prove  that  ,i  <!••  -ji:1  •  iin  ;'.  -  in  the  presence 
of  brothers  or  near  •  I,  ii,-."i' •,  h' -  **\  the  daughter. 
Lp  280,  col.  1.] 

First  appeal  from  a  decree  of  the  Senior 
Subordinate  Judge,  Jullundur,  dated  the 
30th  November  1918. 

Lala  Badri  Das,  R.  B.,  and  Lala  Balwant 
Rai,  for  the  Appellants. 

Bakhshi  Tek  Chand  and  Maulvi  Ghulam 
Mohy-ud-Din  Khan,  for  the  Respondent.  ' 

JUDGMENT.— Muhammad     Hussain 
and  Khadim  Hussain  Muttazai  Pathans  of 
Basti  Mithu  Sahib  a  suburb  of  Jullundur 
City   were  two  brothers.    Muhammad  Hus- 
sain died  on  the  Gth  of  May  1U02,  leaving 
a  widow    Mtisammat    Murad    Bibi  and  a 
daughter   //..•; r    Fatima,   defendants- 
appellants,  as  well  as  two  other  daughters. 
A  dispute  arose  as  to  succession  to  his  pro- 
perty, and  Khadim  Husain  set  up  a  Will  in 
his  favour    dated   the    6ch  of  May    1902. 
Eventually  there  was  a  civil  suit    in  which 
it  was  held  that  the  Will  was  not  genuine. 
Subsequently      Musammat     Murad     Bibi 
brought  a  suit  and  got  a  decree  against  her 
brother-in  law  for  joint  possession  of  her 
husband's  share  in  the  family  property,  but 
as  she  could  not  get  full  enjoyment  of  her 
share  she  applied  for   partition.    The  Re- 
venue Courts  refused  partition  and  Musam- 
mat  Murad  Bibi  then,  on  the  15th    of  May 
1916,  instituted  a  civil  suit    for  a  declara- 
tion that  she  is  entitled  to  partition  of  her 
share.    With  her  was  associated  as  plaintiff 
Musammat  Fatima  to  whom  she  had  made 
a  gift  of  one- third  of  her  share.    The  lower 
Court  gave  the  ladies  a  decree  and  Khadim 
Hussain   has  filed  an  appeal  in  this  Court, 
No,  433  of  1919.    On  the  tth  of  July  1917 
Khadim  Hussain  filed  a  suit  for  a  declarn- 
tion  to  the  effect  that    the    deed  of   gift 
dated  the   i9th   of  August    1914  executed 
by  Musammat  Murad  Bibi  in  favour  of  her 
daughter  Musammat    Fatima  should    not 
effect   his    reversionary    rights  after    the 
death  or  lemaniage  of    the  donor.     The 
lower  Court  disposed  of  this  suit  and  that 
brought  by  the    ladies    above  referred  to 
together,  and  gave  the  plaintiff  a  decree 
for  the    declaration    sought.      Fiom     this 
decree  Musammat  Murad  Bibi  and  Musam- 
mat Fatima    have    brought    the 


[02  I.  0. 1926]  MtiRAD  fliBi  v. 

appeal.  The  Court  in  disposing  of  both  the 
suits  directed  that  the  parties  should  bear 
their  own  costs.  In  Khadim  Hussain's  suit 
Mummmat  Murad  Bibi  and  Musammat 
Fatima  have  filed  an  appeal  (No.  385  of 
1919)  as  regards  their  costs.  We  proceed 
in  this  judgment  to  dispose  of  the  ladies' 
appeal  against  the  lower  Court's  declara- 
tory decree  in  favour  of  Khadim  Hussain 
to  the  effect  that  the  gift  of  Musammat 
Murad  Bibi  should  not  affect  his  reversion- 
ary rights. 

In  the  suit  brought  by  Khadim  Hussain 
he  alleged  as  regards  part  of  the  property 
that  it  did  not  belong  to  the  widow  at  all. 
This,  however,  was  decided  against  him  and 
the  point  has  not  been  raised  in  appeal 
before  us.  The  issues  in  the  suit  brought 
by  Musammat  Murad  Bibi  and  Musammat 
Fatima  were  framed  on  the  18th  of  August 
1916,  and  will  be  found  on  page  26  of  Paper 
Book  A  The  second  issue  was  whether 
the.  gift  made  by  plaintiff  No.  1  to 
plaintiff  No.  2  is  valid,  the  onus  being  laid 
upon  the  plaintiffs;  In  the  case  brought  by 
Khadim  Hussain  issues  were  struck  on  the 
21st  August  1917,  see  page  12  of  Paper  Book 
D  and  the  fifth  and  sixth  issues  were  as 
follows  : — 

&.  "Has  the  plaintiff  lotus  standi  to  con- 
test the  gift?  onus  on  the  plaintiff,"  and, 

6.  "If  so,  is  the  gift  lawful  ?  onus  on  the 
defendants. 

Subsequently  on  the  5th  of  October  1917 
these  issues  were  altered  and  then  read  as 
follows : — 

5  "Has  not  the  plaintiff  locus  standi  to 
contest  the  gift  ?  onus  on  the  defendants" 
and, 

6.  "Is  the  gift  lawful?  onus  on  the 
defendants.1' 

Evidence  in  both  cases  was  heard  toge- 
ther and  Musammat  Murad  Bibi  and 
Musammat  Fatima  produced  their  evi- 
dence first.  At  the  time  when  the  issues  in 
Khadim  Hassain's  case  were  amended  on 
the  5th  of  October  1917,  only  one  witness 
on  the  other  side  had  been  examined. 
From  that  time  on  the  onus  of  proving  the 
validity  of  the  gift  was  placed  upon  Musam- 
mat Murad  Bibi  and  Musammat  Fatima. 
&ir.  Badri  Das  urges  that  the  onus  of  prov- 
ing that  the  gift  was  invalid  should  have 
been  on  Khadim  Huseain.  In  support  of 
tl  i<*  contention  he  urges  that  the  parties 
aie  JtTuttazai  Pnthans  and  live  in  a  suburb 
of  Jullundur  City,  and  that  they  migrated 
to  this  part  of  the  country  from  the  Pe- 


AMIR  HAMZA.  270 

shawar  District  six  generations  ago,  and 
that  prima  facie  there  is  no  presumption 
that  they  are  governed  by  agricultural  cus- 
tom. He  also  states  that  they  do  not  them- 
selves cultivate  land  and  that  they  are  cal- 
led Pirzadas.  Now,  in  the  lower  Court  it 
was  never  contended  that  the  parties  did 
not  themselves  cultivate  their  lands,  or  that 
they  followed  any  other  pursuit  than  that 
of  agriculture.  Nor  was  any  stress  laid  on 
the  fact  that  they  had  migrated  from  the 
Peshawar  District ;  nor  was  it  ever  alleged 
that  they  were  ...  :  "  y  Muhammadan 
Law.  Bakhshi  i  .  •  •  ,  who  appeared 
for  Khadim  Hussain,  referred  us  to  the 
written  pleas  of  the  ladies  at  pages  7-9  of 
Paper  Book  D,  where  in  para  3,  it  is  stated 
that  according  to  the  custom  of  the  parties' 
tribe,  the  plaintiff  has  no  right  to  succeed  to 
the  property  of  Musammat  Murad  Bibi 
whose  reversionary  ^heirs  are  her  daughters. 
Again  in  para.  5  it  is  stated  that  according 
to  the  custom  of  the  parties'  tribe  defend- 
ant No.  1,  Musa7nmat  Murad  Bibi,  is  full 
owner  and  is  competent  to  alienate  her  pro- 
perty, and  that  even  if  no  gift  were  made, 
still  defendant  No  2,  Musammat  Fatima, 
and  her  sister  would  succeed  to  any  pro- 
perty that  would  be  left  by  defendant 
No.  1.  Further,  it  is  to  be  noted  that 
Musammat  Murad  Bibi  is  in  possession  of 
her  husband's  share  of  the  family  proper- 
ty in  accordance  with  general  custom.  If 
Muhammadan  Law  had  applied  she  would 
have  inherited  -J-th  share  only,  while  her 
daughters  would  have  taken  fths. 

The  parties  are  residents  of  Basil  Mithu 
Sahib,  a  suburb  of  Jullundur  town,  and 
the  judgment  of  the  Division  Bench  of  the 
Chief  Court  dated  the  27th  of  November 
1905  in  Civil  Appeal  No.  1404  of  1899  is 
very  important  in  this  connection.  It  is 
printed  at  pages  387-395  of  Paper  Book  B. 
The  dispute  was  between  members  of  the 
same  family  who  are  parties  in  the  present 
case,  Khadim  Russian  being  himself  one  of 
the  plaintiffs.  At  page  389  in  the  judgment  it 
is  stated  : —  l'  In  spite  of  their  foreign  origin 
and  first  settlemant  in  the  Bastis  as  horse- 
dealers  there  is  nothing  at  present  to  dis- 
tinguish these  Pallum  nirri,''fi  ;ri^ts  fro.n 
the  surrounding  agnr-.ilniral  »ri.->-  They 
have  lived  by  agriculture  in  groups  fr  m 
generations  and  I,  therefore,  would  ag  *p 
with  the  Divisional  Judge  that  Qhulam 
Hussain  deceased  was  an  agriculturist,  and 
further  that  he  had  not  an  unrestrictei 
power  of  alieua.tiou.  The  onus,  therefore 


280 


M9RAD  B1BI  V.  AMIR  HAMZA, 


lay  on  the  defendants  to  show  that  Ghulam 

Hussain  was  competent  by  custom  to  make 

the  gift  in  dispute."    Again,  in  Johnstone 

J/B  judgment  at  page  395*,   the    following 

passage     occurs:— " I    agree     that     these 

Pathans,  though  they  may  have  come  to  Jul- 

lundvir  as  horse   dealers,    yet  inasmuch  as 

they  have  settled  down  as  a  compact  village 

community  and  have  apparently  for  six  or 

seyeu  generations  lived  by  aigiiouliuiv  can 

fairly  be  styled  agriculturists,    1  also  agree 

that    in  view  of   what  hap    become    their 

hereditary  occupation,  viz.,  agriculture,  and 

also  in  view  of  the  fact  that  the  village  is 

situated  in  the    midst  of    the    population 

following  the  rules  in  regard   to  succession 

to  ancestral   estate   and  alienation  thereof, 

which  are  known  as  Punjab  agricultural 

custom,  it  can  reasonably  be  presumed  that 

the  powers  of  alienation  of  ancestral  landed 

estate  possessed  by  a  son  less  proprietor  in 

this  village  are  restricted.11    It  is  true  that 

in  that    decision  the  Judges    left  out   of 

consideration    cases  of  gifts  tc  daughters 

on  the  ground  that  such  gifts  were  specially 

favoured    amongst    endogainous    Muham- 

madan  tribes,  but  the  decision  is  important 

as  showing  that  the  Judges  considered  that 

the  members  of  this  tribe  weie  agriculturists 

and    generally    followed     the  customs    of 

agriculturists. 

In  this  connection  also  the  judgments  of 
the  Division  Bench  of  the  Chief  Court  in 
the  casepf  Ata  Muhammad  Khan  v.  Jiwani 
(1)  may  be  referred  to.  In  that  case  the 
parties  were  Barki  Sayyads  of  Basil  Pir 
Dad  Khan,  a  neighbouring  Basti  to  that  to 
which  the  parties  to  the  present  suit  belong, 
and  it  was  held  that  according  to  the  rule 
of  the  customary  law  generally  applicable 
to  agricultural  tribes  iji  the  Punjab,  the 
presumption  was  in  favour  of  the  exclusion 
of  a  daughter  by  a  near  collateral  in  the 
matter  of  succession  to  ancestral  property 
and  the  onus  is  on  the  daughthr  to  prove 
an  exception  to  this  rule.  Having  regard 
to  these  decisions,  and  to  all  the  facts 
above  stated,  we  are  clearly  of  opinion  that 
the  onus  was  rightly  laid  upon  Musammat 
Murad  Bibi  and  her  daughter  to  prove  that 
the  gift  by  the  former  to  the  latter  was  valid. 
The  third  ground  of  the  appeal  is  that 
the  lower  Court  should  have  framed 
an  issue  as  to  how  much  of  the  property 
was  aucestral  and  how  much  self-acquired. 
The  contention  of  Mr.  Badri  Das  is  that 

(1)  26  Ind  Gas.  492;  31  P.  R.  1915;  2  P'  \V.  R.  1915; 
33  P.  L,  Ji, 


($21.0.1936] 

even  if  the  onus  is  on  the  ladies  to  prove 
tha,t  the  gift  was  valid  qua  ancestral  pro- 
perty, the  onus  would  have  been  on  Khadim 
Hussain  to  prove  that  the  gift  is  invalid 
qua  self-acquired  property.  In  the  plaint 
Khadim  Hussain  stated  that  the  property 
in  dispute  was  ancestral.  In  their  pleas 
the  defendants  stated  that  a  part  of  it  was 
self- acquired,  but  they  did  not  state  ho<w 
much  of  it  was  self-acquired.  In  his  replica- 
tion Khadim  Hussain  stated  that  the  small 
portion  of  the  property  which  wa$  self- 
acquired  had  been  acquired  with  the  aid 
of  income  from  the  ancestral  property.  No 
issue  was  framed  as  to  how  much  of  the 
property  was  self-acquired,  but  the  defend- 
ants got  the  special  kanungo  to  produce 
an  extract  from  the  revenue  papers,  which 
is  printed  at  page  109  of'  the  Paper  Book  B. 
This  extract  is  not  admissible  in  evi- 
dence and  in  any  case  it  shows  that  only 
134  kanals  and  2  marlas  of  the  family 
property  was  acquired  by  the  brothers.  Of 
this  half,  67  kanals  and  1  marla  is  Musam- 
mat  Murad  Bibfs  share  out  of  which  she 
has  gifted  only  one  third,  or  22  kanalas  7 
marlas  to  her  daughter.  It  is,  however,  in 
our  opinion,  unnecessary  that  any  further 
enquiry  should  be  made  as  to  how  much 
of  the  property  is  self- acquired.  Though 
the  ladies  pleaded  that  part  of  the  property 
was  self-acquired  they  did  not  go  on  to  say 
that  there  was  any  difference  in  the  custom 
as  to  succession  to  ancestral  and  self- 
acquired  property.  There  was  no  allega- 
tion that  the  gift  would  in  any  case  be 
valid  qua  the  self-acquired  property.  The 
witnesses,  who  gave  oral  evidence  as  to  the 
custom,  made  no  difference  as  to  the  differ- 
ent kinds  of  property,  and  there  is  no  such 
distinction  made  in  the  Riwaj-i-am  of  1885 
or  in  that  of  1913.  We,  therefore,  are  of 
opinion  that  the  ladies  never  meant  to 
plead  that  there  was  any  difference  in  the 
custom  dependent  upon  the  question  whe- 
ther the  property  was  ancestral  or  self- 
acquired.  They  meant  to  state-  that  the 
custom  was  the  same  in  each  case, 

A  good  deal  of  oral  evidence  was  produc- 
ed by  the  defendants,  but  very  little  stress 
has  been  laid  upon  it  in  this  Court.  The 
oral  instances  given  by  the  witnesses  are 
not  well  ascertained  and  we  proceed  to 
discuss  t^e  documentary  evidence  on  the 
record  abjut  which  lengthy  argument*  hiva 
beep,  addressed  to  us. 

Pages  2  to  103  of  Paper  Book  B  contain 
extracts  from  re  venue  papers  the  object  of 


[ML.0.192BJ 

which  is  to  show  that  "daughters  have  in 
several  cases  succeeded  to  property,  and  on 
pages  104-107  a  list  of  seventeen  instances 
is  given  in  which  daughters  succeeded 
either  in  virtue  of  gifts,  or  by  inheritauce. 
These  were  prepared  by  the  special  knnungo 
who  did  not  produce  the  original  documents 
in  Court.  They  are  not  attested  copies  of 
any  entries  in  the  Revenue  Records  and  are, 
therefore,  not  admissible  in  evidence.  They 
have  not  been  considered,  and,  in  our 
opinion,  rightly  so,  by  the  lower  Court. 

Mr.  Badri  Das  has  referred  us  to  the  two 
pedigree  tables  printed  at  pages  453 — 81  of 
Paper  Book  B  in  which  the  names  ol 
daughters  appear  in  various  places,  and 
has  argued  from  this  fact  that  daughters 
have  succeeded  to  their  fathers  in  the 
presence  of  collaterals.  No  doubt  daugh- 
ters' names  do  appear,  but  apart  from  the 
fact  that  in  many  cases  these  daughters  or 
their  issues  are  shown  as  out  o£  possession 
(bedakhal)  it  cannot  be  said  to  be  clear 
from  the  mere  presence  of  the  names  in  tfre 
pedigree  tables  that  :.,  \-.\.  •  •-•  inherited 
their  fathers1  estate.  They  may  have  got 
it  by  gift,  as  gifts  are  specially  favoured  in 
this  tribe,  or  the  land  may  have  passed 
from  the  father  to  his  daughter's  son  either 
by  inheritance  or  by  gift.  We  do  not 
think  that  the  mere  presence  of  the  daugh- 
ters names  in  these  tables  is  a  suflicient 
ground  for  holding  that  they  inherited 
their  fathers'  lands.  In  the  second  pedigree 
table  the  name  of  Sharaf  Din  appears  who 
had  two  wives,  Musammat  Aishan  and 
Musammat  Fatima,  and  it  appears  that  his 
property  went  to  his  two  daughters  Mir 
Begam  and  Sahib  Zadi.  He  also  had  a 
brother  Shams-ud-Din.  The  tamilknama 
at  page  8M  of  Paper  Book  B  shows 
that  the  propen>  '<i-  Lrif!oi  ',  these 
daughters  by  i/.,---  ••.  l-'.ii.'s.i  who 
purported  to  be  entitled  to  the  property 
on  account  of  dower  due  from  her  husband. 
If  she  received  this  land  as  dower  it  became 
her  absolute  property  and  she  was  entitled 
to  dispose  of  it  as  she  pleased.  It  appears, 
however,  that  the  collaterals  never  disputed 
the  daughters'  rights  to  this  property,  but 
what  they  did  dispute  was  the  right  of 
Musammat  Fatima  to  make  a  gift  of  her 
brother-iji-law  Shams-ud-Din's  property,  to 
her  daughters.  The  final  order  upon  the 
claim  brought  by  the  collaterals  was  that 
the  share  of  Shams-ud-Din  was  allotted  to 
them,  see  the  final  order  primed  at  pages 
i63-$61  of  the  PaperjsBook  B,  gwhich  is  in 


MURAD  BIB!  V,  AMIR  HAMZA, 


281 


accordance  with  the  award  of  arbitra  tor 
This  instance,  therefore,  does  not  help  th 
defendants. 

An  attempt  was  made  to  show  that  in  the 
neighbouring  bastis  there  was  a  custom 
under  which  daughters  inherited  in  the 
presence  of  near  collaterals.  We  proceed 
to  consider  the  cases  from  these  bastis  in 
order. 

Basti  Ghuzan.  Exhibit  P  273  shows  that 
one  Haidar  AH  made  a  gift  to  his  brother 
and  sisters.  Subsequently  Musammat  Hur 
brought  a  suit  for  possession  of  her  father's 
share  and  her  right  was  admitted  by  all 
the  defendants  except  one,  and  the  Court 
gave  her  a  decree,  but  the  judgment  does 
not  show  that  any  enquiry  \\as  made  into 
custom. 

Exhibit  P  271  mentioned  in  the  lower 
Court's  judgment  at  page  13*  of  Paper  Book 
A  is  not  now  relied  upon. 

Exhibit  P.  275  will  be  found  at  page  -1 1 
of  Paper  Book  0.  That  was  a  case  where  a 
widow  had  made  a  gift  in  favour  of  her 
daughter,  and  on  a  collateral  suing  it  was 
held  that  the  widow  had  full  ownership 
free  from  all  restrictions  which  fetter  pro- 
perty held  on  a  life  tenure  and  that  the 
widow  had  the  power  to  will  it  away  to  liej 
daughters.  This  instance  does  not  help  thr 
defendants  because  as  the  widow  was  found 
to  be  full  owner  she  could  obviously  djs- 
pose  of  the  property  in  any  way  t-he 
pleased.  ' 

These  are  the  only  instances  cited  by  the 
defendants  from  Basil  Ghuzan  and  we 
have  no  hesitation  in  agreeing  with  the 
lower  Court  that  no  well  defined  custom 
favouring  daughters'  succession  in  this  batfi 
has  been  established.  Basti  Pir  Dad  Ex- 
hibits fc78  and  27y  do  not  appear  to  be  in 
point. 

Exhibit  P  280,  printed  at  page  580  ol1 
Paper  Book  B.  This  case  was  decided  in 
accordance  with  a  special  entry  in  the 
wajib-ul-arz  of  the  village  which  allowed 
the  gift.  The  case  went  in  appeal  and  it 
appears  that  the  appeal  was  referred  to 
arbitrators,  see  Ex  P  L-tf2at  page  44  of  Paper 
Book  C,  in  which  it  is  stated  that  the  arbi- 
trators, had  decided  in  favour  of  the  right 
to  part  with  her  land  being  allowed  to  the 
widow  and  this  decision  of  theirs  was  said 
to  be  not  inconsistent  with  the  wajib-ul-arz. 

Exhibit  P  283,  printed  at  page  *84  et  seq 
(Paper  Book  B)  is  no  doubt  a  case  in  point 
but  the  parties  are  clearly  shown  to 
be  Barki  Sayyads.  It  cannot  be  said 


282 


that  the  parties  to  the  present  case 
are  Muttazai  Pathans  follow  the 
custom  as  Sayyads.  The  case  of  Ata  Muham- 
mad Khan  v.  Jiwani  (l)  was  also  from 
"this  basti,  and  the  parties  were  stated  to 
be  Barki  Sayyads,  and  it  was  held  that 
a  daughter  was  entitled  to  succeed  to  her 
father's  ancestral  property  to  the  exclusion 
of  her  father's  nephews  The  owners 
of  this  basti  as  the  lower  Court  notes,  some- 
time call  themselves  Pathans  or  Afghans, 
and  at  other  time  Barki  Sayyads.  We  agree 
with  the  view  of  the  Court  that  the  custom 
of  these  people  cannot  he  considered  as  the 
same  as  those  of  Muttazu  Pathansof  Dasti 
Mithu  Sahib. 

Basti     Baba    Khel : — The    in    habitants 
of  this  basti  are  Barkis  who  came  origin- 
ally     from     Arabia    and     it      does     not 
follow  that     the  parties    to     the    present 
suit      follow    every      custom    which     pre- 
vails amongst  them.     The  instances  produc- 
ed are  Ex.  P  288  and  289  at  page  277  of 
Paper  Hook  B.    These  are  mutations  of  gifts 
and  no  facts  are  given.     Exhibits  P  2!J2— -294 
pages  281 — L'84  of  Paper  Book  B,  relate  to  a 
decision    in    favour    of    daughters   based 
upon  a  compromise  in  which  there  was  no 
enquiry  as    to  custom.      Exhibits    P   2bO 
contains  a  statement,  at  page  178  of  Paper 
Hook  B,  by  a  number  of  persons  in  answer 
to  a    question  whether  according  to    the 
present  custom  a  gift   of  land  made   by  a 
worn  in  in  favour  of  her  daughter  was  lawful. 
This  is  the  answer  of  a  number  of  people 
an  1  is  not  admissible    in    evidence    under 
s  3^  of  the  Indian  Evidence  Act.   h  is  ^uite 
clear    that  no  custom  has  been   proved    to 
exist  in   Basti  Baba    Khel     in    favour    of 
daughters. 

There  are  two  other  bastis,  Basti  Danish- 
mandan  and  Basti  Sheikh  Darvvesh,  but  the 
inhabitants  in  these  are  Ansaris  whose  cus- 
toms  are  admittedly  different  from  those 
of  the  inhabitants  of  Basti  Mifchu  Sahib. 
Counsel  for  both  parties  admit  this  and 
it  is  not  necessary  for  us,  theiefore,  to  dis- 
cuss the  instances  from  them. 

An  entry  in  the  Riwaj-i-am  of  ;865  will 
be  found  at  page  553  of  Paper  Book  B.  It 
shoT.vs  that  generally  speaking  a  daughter 
does  not  inherit  in  the  presence  of  a  son,  a 
widow  or  a  near  collateral.  In  the  last 
column  exceptions  in  favour  of  certain 
Musalman  tribes  are  made.  Thus,  in  the 
case  of  Lodhi' Afghans,  Sayvads  and  Barkis 
if  there  be  no  sons,  a  daughter  inherits 
even  in  the  absence  of  a  writing  of  her 
father,  TaU  entry  tfas  spaoiac*Uy  raiia  i 


KBHRI  SINGH  0.  THIRPAL, 

who 
same 


[921.0,1926] 

upon  by  the  Chief  Court  in  Ata  Muhammad 
Khan  v.  Jiivani  (i)  in  which  the  par- 
ties were  Barkis  Sayyads.  An  exception  was, 
therefore,  made  in  the  Riwaj-i-am  of  1885 
in  favour  of  Lodhi  Afghans,  Sayyads  and 
Barkis,  but  no  such  exception  was  made 
in  favour  of  Muttazai  Pathans,  and  we,  there- 
fore, consider  that  the  absence  of  any  men- 
tion of  the  parties  tribe  is  a  strong  point 
in  favour  of  the  view  that  in  this  tribe 
daughters  do  not  inherit  in  the  presence  of 
near  collaterals.  In  the  later  riwaj-i~am 
also  no  exception  was  made  in  favour  of  this 
tribe. 

In  fact  the  exception  entered  in  favour 
of  Lodhi  Afghans,  Sayyads  and  Barkis  in 
the  earlier  riwaj-i  am  has  been  omitted. 

Bakkshi  Tek  Chand  referred  us  to  the 
cases  reported  as    Nizam    Din,  v.    Fauja 
(2)  and  Mandas  v.  Shah  Wasim  (3)  the  parties 
to    which  were    Pathans    of  the    Pashwar 
District,  as  showing  that  some  Pathans  of 
that  district  were  governed   by  custom   in 
matters  of  inheritance  and  not  by  Muham- 
madan  Law.     His  argument  is  that  merely 
because    Muttazai  Pathans  originally  came 
from  Peshawar,  il  d)es  not  follow  that  they 
are  governed  by  strict  Muhammadan  Law. 
In  our  opinion    Mnmmmat  Murad    Bibi 
and  Musammat  Fatima  have  failed  to   prove 
that  by  custom  daughters    inherit  in  the 
presence  of  brothers  or  near  collaterals  of 
the  last  male  owner,  or  that  the  gift  by  the 
former  in  favour  of  the  latter  is  valid     We 
therefore,  dismiss  the  appeal,  but  as  we  are 
als)  dismissing  the  appeal  filed  by  Khadim 
Hussahi  in   the  other  case,   we  direct   the 
parlies  to   bear  their  own    costs    in     this 
Court. 

Appeal  dismissed. 
R  1889 
R. 


(3) 


H. 

G8P 
44  P. 


ALLAHABAD  HIGH  COURT, 

FIRST  APPEAL  FROM  ORDER  No.  173 

OP  1B24. 

June  24, 1925. 

Present: — Mr.  Justice  Sulaiman  and 

Mr.  Justice  Boys. 

Rai  Thakur  KEHIU  SINGH -PLAINTIFF 
— APPBLLAN  r 

versus 
THItJPAL  AND  OTHERS— DEFENDANTS— 

RESPONDENTS. 
Tenancy  Act    (II  of    1901),   ss.    175,  1??— 


[6210,1926] 

Letters  Patent  (All),  cl.  11— Civil  Procedure  Code  (Act 
V  of  1908),  8.  115— Revenue  appeal— District  Judge, 
order  of — Appeal — Revision. 

No  appeal  li'&e  to  the  High  Court  from  an  order,  as 
apart  frpm  a  decree,  of  the  District  Judge  passed  on 
appeal  from  a  Revenue  Court  under  s.  177  of  the  Agra 
Tenancy  Act  [p.  283,  col  1  ] 

Zohra  v  Mangu  Lalt  28  A.  753,  3  A.  L.  J.  569,  A. 


U,  TH1RPAL, 


283 


Gulzari  Lai   v.    Latif 
181;  14    A.  L    J.    81, 


W.  N.  (1906)  223  (F  B  )  and 
7ftts<m?,35Ind.  Cas.  27;  38  A 
followed. 

Nor  is  an  appeal  competent  in  such  a  case  as  the 
above  under  cl  .  11  of  the  Letters  Patent  of  the 
Allahabad  High  Court  [ibid  ] 

Obiter,  —  The  High  Court  has  power  to  entertain  a 
revision  of  an  order  passed  by  a  District  Judge  under 
8.  177  of  the  Agra  Tenancy  Act.  [p.  288,  col.  2.] 

[Case-law  discussed,] 

First  appeal  from  an  order  of  the  Dis- 
trict Judge,  Agra,  dated  the  16th  of  August 
1924. 

Mr.  Gopinath  Kunzru  for  Mr.  N.  P.  Ash- 
thana,  for  the  Appellant. 

Mr,  17.  S.  Bajpai,  for  the  Respondents. 
JUDGMENT. 

Sulaiman,  J.  —  This  is  an  appeal  from 
an  order  of  remand  passed  by  the  District 
Judge  in  an  appeal  from  a  Revenue  Court. 
A  preliminary  objection  has  been  taken 
that  no  appeal  lies.  This  objection  is  well- 
founded.  Under  s,  175  of  the  Agra  Ten- 
ancy Act?  no  appeal  from  any  decree  or 
order  passed  by  any  Court  under  that  Act 
lies  except  as  therein  provided.  Under 
s.  177  an  appeal  is  provided  from  a  decree 
of  a  District  Judge  passed  on  appeal  but 
no  appeal  is  provided  from  an  order  passed 
by  a  District  Judge.  It  is,  therefore, 
apparent  that  no  appeal  from  his  order  of 
remand,  which,  of  course,  is  not  a  decree 
lies  to  this  Court  This  view  is  concluded 
by  the  decision  of  the  Full  Bench  case  of 
Zohra  v.  Mangu  Lai  (1)  which  has  been 
followed  recently  in  the  case  of  Gulzari 
Lai  v,  Latif  Husain  (2). 

The  learned  Vakil  for  the  appellant, 
however,  contends  that  an  appeal  lies  under 
pr.ra.  11  of  the  Letters  Patent  of  this  Court, 
In  our  opinion  no  such  appeal  lies  under 
that  paragraph  at  all.  Under  that  paia- 
graph,  this  High  Court  is  constituted  a 
Court  of  Appeal  from  the  Civil  Courts  and 
has  power  to  exercise  appellate  jurisdiction 
in  such  cases  as  ar?  subject  to  appeal  to  the 
said  High  Court  by  virtue  of  any  laws  or 
regulations  now  in  force.  The  constitution 
of  this  High  Court  as  a  Court  of  appeal 
is  quite  a  different  thing  from  saying  that 

(1)  28  A.  753;  3  A.  L.  J.  569;  A.  W.  N.  (1906)  223 
(F.  B.). 
&  35  lud,  0«i,  27  ;  38  A,  W;  U  A,  L.  J,  84, 


this  Court  has  jurisdiction  to  hear  appeals 
from  every  decree  or  order  passed  by  a 
subordinate  Court.  If,  therefore,  then*  is 
no  law  or  regulation  which  allows  an  ap- 
peal to  it  the  High  Court  cannot  assun.e 
an  appellate  jurisdiction.  The  power  of 
revision  and  superintendence,  however,  is 
much  wider. 

The  learned  Vakil  for  the  appellant  next 
urged  that  his  appeal  should  be  treated'  as 
a  revision  and  that  inasmuch  as  the  learned 
District  Judge  has  assumed  jurisdiction 
which  was  not  vested  in  him,  this  Court 
should  interfere  in  revision.  This  argu- 
ment is  based  on  the  assumption  that  no 
appeal  lay  to  the  District  Judge  because 
no  question  of  proprietary  title  had  been 
raised  in  the  first  Court  and  no  question 
of  jurisdiction  had  been  decided  by  it. 
The  reply  of  the  learned  Advocate  for  the 
respondent  is  that  the  High  Court  has  no 
power  of  revision  in  a  revenue  matter  at 
all.  The  question  whether  the  High  Couit 
has  power  to  interfere  in  revision  has  been 
considered  in  a  number  of  cases  which  are 
by  no  means  unanimous  and  &o  far  there  is 
no  Full  Bench  decision  on  this  matter.  The 
position  is  as  follows  : — 

In  at  least  three  cases  Ahmad  Ullah 
Khan  \\  Murli  (3),  Kesho  Das  v.  Morat 
Pandey  (4)  and  Lalta  Prasad  v.  Kharga 
(5),  an  application  for  revision  was 
entertained.  Then  again  in  the  case  of 
Parbhu  Narain  Singh  v.  Harbans  Lai 
(6),  at  least  one  Judge  expressed  the 
view  that  a  revision  may  lie  from  an  order 
passed  by  a  Judge  on  appeal.  On  the  other 
hand,  the  other  learned  Judge  in  the  case 
last  mentioned,  as  well  as  other  learned 
Judges  in  the  case  reported  as  Mohammad 
Ehtisham  AH  v.  Lalji  Singh  (7)  and  Gaj 
Kumar  Chander  v.  Salamat  Ali  (8)  have 
expressly  laid  down  that  the  High  Court  has 
no  revisional  jurisdiction  in  cases  under  the 
Tenancy  Act 

If  there  were  no  direct  authority  in 
point,  I  would  have  no  hesitation  in  saying 
that  there  is  no  provision  in  the  Tenancy 
Act  which  bars  the  revisional  jurisdiction 
of  the  High  Court.  In  the  first  place, 
under  s.  193  of  the  Act,  the  provisions  of 

(3)  5  A.  L.  J  128;  A.  W.  N.  (1908)  S9. 

(4)  23  Ind.  Cas.  320;  12  A.  L.  J.  3C7. 

(5)  71  Ind.  Caa.  773;  21  A.  L.  J.  189,  (1923)  A.  I.  R, 
(A)  3 in,  4.r»'A.  336. 

(6)  35  Ind.  Cas.  279;  14  A.  L.  d  281. 

(7)  49  Ind.  Caa.  362;  17  A.  L.  J.  123;  41  A.  226, 

(8)  52  Ind.  Cas.  756;  17  A.  L.  J,  1057;  1  U.  P.  L,  K  * 
(A.)  142;  42  A.  83, 


KEHRI  SINGH  l».  THIKPAJL 

the  0.  P.  C.,  with  the  exception  of  certain 
proyisions  mentioned  therein,  are  made 
applicable  so  far  as  they  are  not  inconsist- 
ent with  the  Act.  Section  115  of  the  C.  P. 
C.  corresponding  to  the  old  s.  622  is  not 
excluded.  Prima  facie,  therefore,  the  re- 
visional  section  of  the  0.  P.  C.  is  made 
applicable  to  suits  and  proceedings  under 
the  Tenancy  Act  unless  there  are  other 
provisions  of  the  Act  which  are  repugnant 
to  its  application.  In  cases  where  it  has 
been  held  that  the  High  Court  has  no 
jurisdiction  to  interfere,  reliance  lias  been 
placed  solely  on  the  provisions  of  s.  167  of 
the  Act.  Fow  s.  167  bars  suits  and  appli- 
cations of  the  nature  specified  in  the  Fourth 
Schedule  and  it  also  prevents  every  Court 
other  than  a  Kevenue  Court  from  taking 
,*  ..;i  I.',;:  •  of  any  dispute  or  matter  in 
respect  of  which  any  such  suit  or  applica- 
tion might  be  brought  or  made.  It  seems 
to  us  that  the  present  application  for  revi- 
sion would  not  be  incompetent  unless  it 
be  shown  that  a  suit  or  application  of  the 
nature  of  this  application  could  be  brought 
or  made  in  the  Kevenue  Court  as  specified 
in  the  Fourth  Schedule.  Reference  has 
been  made  to  serial  No.  51  in  the  Fourth 
Schedule  where  an  application  for  revision 
under  s.  i85  of  the  Act  can  be  filed  without 
any  fixed  period  of  limitation.  But  s.  185 
is  expressly  confined  to  revisions  to  the 
Board  of  Revenue  from  aubordinate  Re- 
venue Courts.  It  does  not  refer  to  levisions 
from  the  Court  of  the  District  Judge.  It, 
ia,  therefore,  impossible  to  suggest  that 
any  application  of  this  nature  could  have 
been  brought  or  made  in  the  Revenue 
Court.  It  would  then  follow  that  s.  167 
cannot  be  a  bar  to  this  application.  If  the 
argument  be  accepted  that  the  High  Court 
lias  no  revisional  jurisdiction  to  interfere 
at  all,  then  it  was  wholly  futile  to  make 
s  115  of  the  C.  P.  C.  applicable  to  the 
Act  for  no  case  would  then  be  conceivable 
where  a  revision  would  lie  and  s.  167 
would  not  be  a  bar.  If  the  view  urged  on 
behalf  of  the  appellant  were  not  the 
correct  view,  then  the  result  would  be 
that  an  order  passed  by  a  District  Judge 
without  jurisdiction,  and  howsoever  illegal 
it  might  he,  would  remain  final  and  be  not 
open  to  revision  either  by  the  Board  of 
Revenue  or  by  the  High  Court.  We  do 
not,  however,  consider  it  necessary  to  refer 
this  case  to  a  larger  Bench  because  it  is 
passible  to  dispose  of  the  case  on  different 
grounds.  In  the  written  statement  the 


0. 1926] 

defendant  had  taken  several  plea,s  includ- 
ing a  denial  of  the  relation  of  landlord 
and  tenant  and  also  a  plea  of  want  of  juris- 
diction of  the  Civil  xCourt.  The  Assistant 
Collector  only  framed  pne  issue  as  to  whe- 
ther the  relation  of  landlord  and  tenant 
existed  between  the  parties  or  not,  and 
decided  it  by  a  summary  judgment.  The 
learned  District  Judge  was  of  opinion  that 
the  suit  had  not  been  decided  in  a  satis- 
factory manner  inasmuch  as  the  first 
Court  did  not  even  take  the  trouble  to  go 
into  the  question  whether  the  tenant  had 
really  relinquished  the  holding  or  whether 
the  alleged  relinquishment  was  valid.  He 
did  not  even  come  to  a  definite  finding 
whether  a  surrender  had  been  made,  for 
before  the  mortgagee  could  be  ejected,  it 
was  necessary  to  find  that  a  surrender  had 
actually  taken  place.  In  view  of  these 
defects  the  learned  District  Judge  has  set 
aside  the  decree  and  remanded  the  case 
for  re-trial  after  taking  such  additional 
evidence  as  may  be  tendered  b'y  the  parties. 
After  all,  the  case  will  be  re-tried  after 
both  parties  have  had  full  opportunity  of 
producing  their  evidence.  No  real  injustice 
has  been  done  to  the  parties.  It  is  not  a 
fit  case,  even  assuming  that  we  have 
interfere  in  revision,  in  which 
to  interfere.  I  would  dismiss  the 


power  to 
we  ought 
appeal. 
Boys,  J.— I 

posed  by 


agree  with  the  order  pro- 
my  learned  brother  Mr.  Justice 
ulaiman.  The  appeal  is  from  an  order 
of  remand  passed  by  a  District  Judge 
under  s.  177  of  the  Tenancy  Act  on  appeal 
from  a  decree  of  an  Assistant  Collector  of 
the  First  Class. 

It  has  hardly  been  contended  that  an 
appeal  lies  but  we  are  asked  to  treat  the 
matter  as  an  application  under  s.  115  on 
the  revisional  side.  It  is  contended  for 
the  opposite  party  that  no  revision  lies  and 
the  contention  is  certainly  supported  by 
judicial  authority. 

The  relevant  sections  of  the  Tenancy  Act 
are  ss.  167, 177,  165,  193  and  196 

We  had  to  consider  the  following  cases :  — 

Damber  Singh  v.  Sri  Kishun  Das  (9), 
Parbhu  Narain  Singh  v.  Harbans  Lai  (6), 
Jumna  Prasad  v.  Karan  Singh  (10),  Moham- 
mad Ehtisham  Ali  v.  Lalji  Singh  (7)  and 
Gaj  Kumar  Chunder  v.  Salamat  Ali  (8). 

We  are  also  referred  to  Ahmad  Ullah 
Khan  v.  Murli  (3),  Kesho  Das  v.  Mural 

(9)  2  Ind  Ca8  377;  6  A.  L.  J.  552;  31  A.  445. 

(10)  46  lud,  Cas.  338;  16  A.  L.  J.  859;  41  A.  28, 


KBHRI  SINGH  V.  THIRPAL. 


2B5 


Pandey  (4)  and  Lalta  Prasad  v.  JK7iar0a(5\ 
but  though  a  revision  was  in  fact  enter- 
tained, thfe  point  whether  a  revision  is  com- 
petent was  not  raised  in  those  cases. 

In  Chutten  Lai  v.  Kanhaya  Lai  (11)  the 
point  was  raised  but  not  decided.  I  shall 
not,  therefore,  further  refer  to  these  last 
four  cases. 

Of  the  first  five  cases  that  I  have  men- 
tioned it  will  be  convenient  to  give  a  brief 
account  in  order  to  Judge  exactly  how  far 
they  are  apposite  to  the  facts  of  the  pre- 
sent case  and  in  order  that  it  may  be 
possible  to  form  a  correct  estimate  as  to 
the  steps  fey  which  the  proposition  may  be 
said  to  have  become  nearly  established  that 
a  revision  does  not  lie. 

In  Damber  Singh  v.  Sri  Kishun  Das  (9) 
Richards  and  Alston,  J  J.,  had  before  them 
an  application  in  revision  of  an  order  of  an 
Assistant  Collector  refusing  execution.  The 
suit  had  been  filed  in  the  Court  of  an 
Assistant  Collector  of  the  First  Class  and 
dismissed.  The  District  Judge  held  that  it 
should  not  have  been  tried  in  a  Revenue 
Court,  but  under  the  provisions  of  ss.  177, 
196,  197  of  the  Tenancy  Act  entertained 
the  appeal  and  decreed  the  suit.  The 
decree-holder  applied  to  the  Assistant  Col- 
lector in  execution.  The  Assistant  Collect- 
or refused  the  application,  and  the  decree- 
holder  applied  to  the  High  Court  in  revi- 
sion. It  was  held  that  a  revision  was 
barred  by  s.  167  of  the  Tenancy  Act ;  and 
reliance  was  placed  on  the  words  "  except 
in  the  way  of  appeal.11  In  support  of  his 
right  to  apply  in  revision  the  applicant 
urged  that  the  decree  to  be  executed  was 
in  fact  the  decree  of  the  District  Judge. 
Richards/ J.,  remarked  "possibly  his  remedy 
was  to  apply  to  the  District  Judge  for 
execution  of  the  decree.11  This  suggests  at 
least  the  possibility  that  an  application  in 
revision  might  have  been  considered  com- 
petent if  it  had  been  framed  as  a  revision 
from  the  order  of  a  District  Judge.  The 
acttial  case  dealt  with  the  revision  by  the 
High  Court  of  an  order  of  an  Assistant 
Collector,  i.  e.,  an  order  of  a  Revenue  Court 
and  can  have  no  direct  bearing  on  the 
case  before  us.  The  more  general  effect 
of  some  of  the  remarks  I  will  consider 
later. 

In  Parbhu  Narain  Singh  v.  Harbans  Lai 
(0  PiiriM  I-  ar.'.i  Walsh,  JJ.,  had  before  them 
a  :<VM<;I,  of  » :i  order  of  a  District  Judge 

(11)  17  had.  C*e,  836j  10  A,  L.  J,  478, 


under  s,  10  of  theT-  :. •.-.  -.  JA-,"  V-  .    , 

suit  on  second  app-..  •'  :"••;:..  :''  .  •  .  i( 
gott,  J.,  after  holding  that  in  any  event  the 
application  did  not  come  within  the  narrow 
compass  of  the  provisions  of  s.  115  of  the 
C,  P.  Q,  further  held  that  the  revision  was 
wholly  excluded  by  the  last  clause  of  s.  107 
of  the  Tenancy  Act  ;  that  to  entertain  a 
revision  would  amount  to  "taking  cogni- 
zance11 of  the  dispute  or  matter  in  respect 
of  which  the  suit  was  brought  ,  and  that 
the  fact  that  s.  115  of  the  0.  P.  C.  is  one 
of  the  sections  made  applicable  by  s.  193 
of  the  /Tenancy  Act  to  proceedings  under 
the  Tenancy  Act  did  not  affect  the  matter  as 
s.  193  was  expressly  subject  to  and  could 
not  override  s.  167.  Walsh,  J,  differed, 
holding  that  "  the  decision  of  a  District 
Judge  given  by  way  of  an  appeal  from  a 
Revenue  Court  is  a  decision  of  the  Civil 
Court  andiis,  therefore,  subject  to  revision1', 
and  further  that  the  hearing  of  the  revision 
would  not  amount  to  "taking  cognizance11 
of  the  dispute  or  matter  in  respect  of  which 
the  suit  was  brought. 

In  Jamna  Prasad  v.  Karan  Singh  (10) 
Abdul  Raoof,  J.,  had  before  him  a  case  in 
which  an  appeal  had  been  filed  under  s.  177 
before  a  District  Judge  from  the  decree 
of  an  Assistant  Collector  The  District 
Judge  held  that  no  appeal  lay  to  his  Court 
from  the  decree  of  the  Assistant  Collector 
and  returned  the  memorandum  of  appeal. 
Abdul  Raoof,  J.,  refused  to  distinguish  the 
case  of  Damber  Singh  v.  Sri  Kishan  Das  ({)) 
and  following  the  construction  of  *;.  1G7  m 
that  case  held  that  no  revision  was  compe- 
tent. I  find  myself  unable  to  appreciate  why 
the  learned  Judge  found  himself  unable  to 
distinguish  the  case  of  Damber  Singh  v.  Sri 
Kiyh'in  Da*  (9),  which,  as  I  have  quoted 
above,  was  a  case  where  the  Court  was  asked 
to  revise,  not  the  order  of  a  District  Judge, 
a  Civil  Court,  but  of  an  Assistant  Collector, 
a  Revenue  Court. 

In  Mohammad  Ehtisham  All  v.  Lalji 
Singh  (7).  Tudball  J.,  had  before  him  a 
revision  of  an  order  of  an  Assistant  Col- 
lector of  the  First  Class.  The  matter  had 
not  gone  before  a  District  Judge.  Tudball, 
J,,  relied  on  Damber  Singh  v.  Sri  Kishan 
Das  ((J)  referred  to  Parbhu  Narain  Singh  v. 
Harbans  Lai  (6)  and  pointed  out  that  Walsh, 
J.t  would  apparently  in  the  case  of  a  revision 
of  an  order  of  an  Assistant  Collector  have 
agreed  that  no  revision  was  competent. 
Tudball,  J.,  further  relied  on  the  words  uof 
the  nature"  in  0*  167  and  held  that 


§86 


KESRI  SINGH  V. 


[94  1.  0. 


nature  of  all  revisions  whether  civil, 
criminal  or  revenue  was  alike.  The  learned 
Judge  further  remarked,  and  it  is  import- 
ant to  note  this,  that  in  the  matter  before 
him  the  case  had  not  gone  into  the  Civil 
Court  at  all  because  there  had  been  no 
appeal  whatever  preferred  to  the  District 
Judge,  and  there  was,  therefore,  no  order 
before  him  which  could  in  any  sense  be 
deemed  to  be  an  order  of  a  Civil  Court. 
This  again  as  in  the  case  Damber  Singh  v. 
Sri  Kishan  Das  (9)  suggests  at  least  the 
possibility  that  the  learned  Judge  would 
have  decided  otherwise  if  he  had  had  before 
him  the  order  of  a  District  Judge.  He  held 
that  there  could  be  no  revision  of  the  order 
of  the  Assistant  Collector.  Here  again  the 
High  Court  was  asked  to  revise  the  order 
of  an  Assistant  Collector,  a  Revenue  Court, 
and  the  decision  can  have  no  direct  bearing 
on  the  case  before  us.  The  more  general 
effect  of  some  of  the  remarks  I  will  consider 
later. 

In  Gaj  Kumar  Chander  v.  Salamat  All 
(8)  Stuart  and  Wallach,  JJ.,  had  before 
them  a  revision  of  an  appellate  order  of  a 
District  Judge  under  s.  180.  After  remark- 
ing that  only  Revenue  Courts  can  deal  with 
original  matters  while  appellate  powers 
are  sometimes  vested  in  the  Revenue  and 
sometimes  in  Civil  Courts,  the  learned 
Judges  held  that  by  virtue  of  SR.  167  and 
193  '•  the  only  power  that  the  High  Court 
has  to  dispose  of  matters  covered  by  Local 
Act  II  of  1901  is  given  by  the  Act  itself; 
and  the  power  of  revision  is  not  a  power 
which  is  so  given  to  it".  Ihey  held  that 
the  fact  that  there  is  no  inclusion  of  s.  622 
(now  s.  115)  in  s.  193  of  the  Tenancy  Act 
did  not  afiect  the  question,  for  the  provi- 
sions of  the  0.  P.  C.  apply  to  the  procedure 
in  suits  and  other  proceedings  under  the 
Rent  Act  so  far  as  they  are  not  so  incon- 
sistent therewith.  They  held,  therefore,  that 
no  revision  lies. 

It  will  be  seen  that  the  question  whether 
an  application  in  revision  lies  against  an 
order  of  a  District  Judge  under  s.  177  (the 
case  before  us)  was  only  directly  dealt  with 
in  Jamna  Prasad  v.  Karan  Singh  (10)  but 
the  decisions  in  Parbhu  Narain  Singh  v. 
Harbans  Lai  (6)  and  Gaj  Kumar  Chander  v. 
Salamat  Ali  (8)  which  were  cases  where  a 
District  Judge  acted  under  s.  180  are  also 
analogous.  Section  177  is  expressly  referr- 
.  ed  in  the  exception  in  s.  185  while  s.  180 
is  not,  but,  whatever  may  be  the  reason  for 
the  omission,  it  does  not  seem  to  affect 


the  present  question,  so  I  will  jregard  the 
two  later  cases  as  also  bearing  on  the  case 
before  us  where  the  appeal  was  allowed  by 
s.  177. 

In  the  main  reliance  was  placed  in  these 
cases  on  a  particular  interpretation  put  on 
s:  167  ;  while  any  effect  was  denied  to  s.  193 
on  the  ground  that  any  other  interpretation 
would  be  in  conflict  with  the  interpretation 
already  put  on  s.  167. 

I  will  first  deal  with  these  considera- 
tions. 

In  dealing  with  s.  167  the  words  "of  the 
nature"  were  relied  on  by  Tudball,  J.,  in 
Mohammad  Ehtisham  Ali  v.  Lalji  $ingh  (7) 
as  showing  that  not  only  revisions  by  the 
Board  under  s.  185  (Serial  No.  51  of  the 
Fourth  Schedule)  were  excluded  from  the 
jurisdiction  of  Revenue  Courts,  but  all 
revisions  whether  by  Civil,  Revenue  or  Cri- 
minal Courts.  It  may  be  that  the  words  "of 
the  nature11  were  used  because  there  are 
some  applications  in  the  Fourth  Schedule 
nofc  further  specified  by  sections  (Serial  Nos, 
47,  48  and  49)  or,  by  way  of  precaution 
because  there  might  be  found  to  be  ana- 
1  j;  i-  ••:-•,  s  inclusion  of  which  in  the  sole 
j-!1  .-  i:-'1!  -:i  of  Revenue  Courts  was  desir- 
able. But  whatever  be  the  reason  for  the 
words,  i  cannot  believe  that  the  Legislature 
would  have  adopted,  such  a  vague  method 
of  including  in  the  prohibition  enacted  by 
s.  167  such  a  clearly  defined  class  of  proceed- 
ing such  as  revisions.  Nor  was  it  neces- 
sary to  hold  this  to  support  the  particular 
decision.  The  fact  that  a  power  of  revision 
was  conferred  on  the  Board  by  s.  185  of  the 
Tenancy  Act  was  sufficient  to  exclude  any 
power  of  the  High  Court  under  s.  115  of  the 
C.  P.  C.  which  otherwise  might  be  held  to 
exist  in  virtue  of  s.  193  of  the  Tenancy 
Act. 

Next,  the  words  "except  in  the  way  of 
appeal"  were  relied  on  in  Damber  Singh  v 
Sri  Kishan  Das  (9)  as  showing  that  no  revi- 
sion lies.  I  will  later  state  my  view  as  to 
the  real  scope  and  intent  of  s.  167  and  of 
these  words  in  particular  as  meant  merely 
to  make  s.  167  consistent  with  s.  196  ;  but, 
even  if  that  view  be  wrong,  the  words  in 
question  could  at  most  be  intended  to  make 
s.  167  consistent  with  ss.  177,  180  and  196; 
such  a  form  of  words  could  not  rightly  be 
used  or  be  interpreted  to  enact  affirmatively 
anything  in  regard  to  revisional  jurisdic- 
tion nor  was  it  necessary  to  attribute  this 
effect  to  the  words  in  order  to  support  the 
particular  decision.  It  could  be  supporte4 


[92  I.  0. 1926} 

for  the  same  reason  that  I  have  already 
noted  that  the  decision  in  Mohammad 
Ehtisham  Ali  v.  Lalji  Singh  (7)  could  be 
supported. 

Further  the  words  "take  cognizance'  were 
relied  on  in  Parbhu  Narain  Singh  v. 
Harbans  Lai  (&)  by  Piggott,  J.,  as  excluding 
revision  Walsh,  J.,  held  the  contrary.  I 
shall  state  later,  when  giving  my  own 
view,  the  real  scope,  in  my  opinion,  of  these 
words. 

In  more  than  one  case,  the  force  of  the 
argument,  that  while  certain  sections  of  the 
C.  P  0.  are  by  s.  193  excluded,  s  115  (the 
old  s  622)  is  not  excluded,  was  repelled  by 
holding  that  it  was  excluded  as  being  incon- 
sistent with  s.  167  of  the  Tenancy  Act.  The 
contention  is  of  couree  eound,  if  in  fact 
s.  167  does  really  exclude  revision  under 
s.  115  of  the  0.  P.  C. ;  but  that  only  brings 
us  back  to  the  main  question. 

I  have  now  considered  earlier  judicial 
authority  and  can  find  therein  nothing  that 
satislies  me  that  s.  167  is  any  bar  to  this 
Court  exercising  revisional  jurisdiction  in 
respect  of  an  order  passed  under  s.  177  of 
a  District  Judge  who  is  undoubtedly  a  Civil 
Court.  1  would  add  that  I  am  confirmed 
in  my  view  by  the  absence  of  any  reason 
for  excluding  the  revisional  jurisdiction 
of  this  Court  in  regard  to  a  subordinate 
Civil  Court,  a  District  Judge,  while  allowing 
it  to  the  Board,  with  one  exception  the 
reason  for  which  is  obvious,  in  regard  to 
subordinate  Revenue  Courts, 

I  am  further  confirmed  in  my  view  by 
the  fact  that  when  the  Legislature  consider- 
ed in  s.  193  with  such  meticulous  care  what 
provisions  of  the  C.  P.  C.  were  to  be  exclud- 
ed from  importation  by  virtue  of  s.  193  or 
were  to  be  modified  in  their  application, 
it  would  have  left  the  exclusion  of  such  an 
important  provision"  as  s.  115  a  matter  of 
doubtful  inference. 

Further  I  note  that  apparently  in  both 
the  decisions,  Damber  Singh  v.  Sri  Kishan 
Das  (9)  and  Mohammad  Ehtisham  Ali  v. 
Lalji  Singh  (7)  there  are  remarks,  to  which 
I  have  referred  above  when  summarising 
those  cases,  which  strongly  suggest  the  pos- 
sibility at  least  that  they  would  have  been 
decided  differently  if  the  revision  had  been 
against  the  order  of  a  District  Judge. 

I  have  discussed  what,  in  my  opinion, 
B.  167  does  not  enact,  namely,  that  it  does 
not  affirmatively,  even  indirectly,  prohibit 
revision  of  an  order  of  a  District  Judge.  I 


KEHRI  SINGH  V.  THIRPAL. 


£87 


will  now  state  my  view  of  what  s.  167  does 
enact,  theTeally  limited  scope  and  intent  of 
the  section. 

It  appears  to  me  that  the  intention  as  ex- 
pressed in  s.  167  is  that  the  section  is  only 
concerned  with  theheaiing  of  original  suits 
and*  applications.  This  view  of  the  section 
was  not  raised  before  us,  but  it  appears  at 
the  least 'certainly  not  untenable  and  to 
be  in  accord  with  the  scheme  of  the  Act. 

Before  considering  in  detail  the  contents 
of  the  section,  I  would  observe  that  there 
is  nothing  improbable  in  such  a  section 
being  confined  to  original  suits  and  other 
original  proceedings.  There  is  not  the 
least  need  for  any  such  sect-ion  to  contain 
any  prohibition  against  appeals  or  revisions 
from  orders  of  Revenue  Courts  being  heard 
by  other  than  Revenue  Courts  (except  as 
provided).  It  is  wholly  unnecessary  to 
forbid  a  Civil  Court  to  hear  a  matter  in 
appeal  from  a  Revenue  Court  for  the 
jurisdiction  of  Civil  Courts  ordinarily  to 
hear  such  appeals  is  already  confined  by 
the  la  •  -  ••:  -1  i  •;• :'  i:  -  ich  Courts  to  appeals 
from  •;  •  s  ::•.!'•  <  r-;'.  Courts,  and  they 
could  not  under  any  circumstances  touch 
an  appeal  from  a  Revenue  Court,  except 
where  such  power  was  expressly  given. 
Such  power  is,  of  course,  given  by  ss.  177, 
180  and  196,  But  except  where  such  power 
is  expressly  given  it  would  be  entirely 
impossible  to  suggest  that  a  Civil  Court 
could  have  any  appellate  power  at  all,  and, 
therefoie,  any  prohibition  would  be  entirely 
superfluous.  Mutatis  mutandis  exactly  the 
same  reasoning  applies  to  revisions.  No 
Civil  Court  could  possibly  entertain  a  re- 
vision of  an  order  of  a  Revenue  Court  under 
the  ordinary  power  and  laws  constituting 
the  Civil  Courts.  Therefore,  there  is  no 
need  to  prohibit  the  exercise  of  such  a  re- 
visional  power.  When  we  come,  however, 
to  original  suits  and  proceedings  the 
situation  is  wholly  different  and  a  prohibit- 
ing section  is  essential.  But  for  such  a 
section  Civil  Courts  would  have  co  ordinate 
jurisdiction  with  Revenue  Courts  in  very 
many  matters.  It  is,  therefore,  necessary 
to  prohibit  the  exercise  of  such  jurisdiction 
by  the  Civil  Courts,  where  it  is  desired  to 
confine  it  to  Revenue  Courts.  If  I  have 
made  my  meaning  clear  we  should  then 
expect  to  find  in  the  Act  a  section  forbid- 
ding the  exercise  by  Civil  Courts  of  original 
jurisdiction  in  revenue  matters  and  we 
should  not  expect  to  find  such  a  section 
forbidding  them  to  exercise  appellate  oj 


"28B 


KBHRT  SINGH  V.  THIRPAL. 


're visional    powers    as    such      prohibitions 
would  be  superiluous. 

I  have  thought  it  convenient  to  con- 
sider first  what  might  be  expected  before 
considering  what  we  actually  find,  thus 
inverting  the  usual  course ;  while,  of 
course,  recognising  that  operative  -\tords 
in u^t  be  interpreted  in  accordance  with 
what  has  been  actually  said  an*  that  what 
might  be  expected  can  only  be  allowed 
weight  in  support  or  where  ambiguity,  if 
any,  exists. 

1  will  now  consider  the  indications  to  be 
found  in  the  actual  words  of  the  section.  The 
section  may  be  divided  into  its  two  clauses, 
hi  the  first  clause  the  first  phrase  which  sug- 
gests itself  for  consideration  is  "all  suits  and 
applications  "  This  phrasing  is  certainly 
more  appropriate  to  original  proceedings.  If 
it  had  been  intended  to  apply  to  appeals  and 
revisions,  nothing  would  have  been  easier 
than  to  say  so  in  plain  language.  In  fact, 
no  reference  is  made  in  this  clause  in  any 
way  whatever  to  appeals  and  revisions.  I 
will  refer  later  to  the  reference  to  appeals 
in  the  second  clause  and  will  endeavour  to 
show  that  that  reference  is  entirely  consist- 
ent, with  the  view  which  I  am  now  discuss- 
ing. 

1  u  the  second  clause  we  next  find  the  words 
"shall  take  cognizance".  In  Parbhu  Narain 
Snujh  v.  Harbans  Lai  (6)  Piggott,  J  ,  held 
that  it  would  be  "taking  cognizance1'  of 
the  dispute  or  matter  in  which  the  suit  was 
brought,  for  a  higher  Court  to  deal  in  re- 
vision with  the  order  of  a  Civil  Court  (Dis- 
trict Judge)  on  appeal  from  an  order  of  a 
Kevunue  Couit.  Walsh,  J.,  differed  and  held 
that  the  term  was  not  appropriate  to  the 
J) earing  of  the  revision  from  an  appellate 
order,  I  have  no  hesitation  in  expressing 
my  agreement  with  Walsh,  J.,  for  it  appears 
to  me  difficult  to  hold  that  the  words  "take 
cognizance"  are  not  very  much  more  appro- 
priate to  original  proceedings  and  are  not 
almost  invariably  applied  to  original  pro- 
ceedings. I  am  not  prepared  to  go  so  far 
as  to  say  that  those  words  have  never  been 
applied  b>  '!.••  T.c^'-1':11,.'-1  to  appellate  or 
revisional,,1  ,\  -  ::  '!  '•  '•  v  1  am  certainly  not 
aware  of  any  such  case,  though  it  would 
not  be  difficult  to  quote  very  many  instances 
of  their  application  lo  original  proceed- 
ings. 

The  next  phrase  calling  for  comment  in  the 
second  clause  of  s.  167  is  "except  in  the  way 
of  appeal  as  hereinafter  provided".  It  is 
these  words  which,  I  think,  have  in  some 


(92  I.  U. 

way  or  other  not  very  clear  to  me  appeared 
to  at  least  one  Judge  to  lend  support  to  the 
view  that  s  .167  excluded  revisional  jurisdic- 
tion. So  far  as  I  am  aware  the  words  were 
first  referred  to  in  Damber  Singh  v.  Sri 
Kishan  Das  (9)  where  reliance  was  placed  on 
them  in  a  case  where  there  was  no  question 
of  the  revision  of  an  order  of  a  District 
Judge  but  revision  only  of  an  order  of  an 
Assistant  Collector  refusing  an  application 
for  execution. 

In  Mohammad  EhtishamAliv.  Lalji  Singh 
(7)  the  report  of  the  judgment  of  Tudball,  J., 
shows  that  when  quoting  the  earlier  case, 
Damber  Singh  v.  Sri  Kishan  Das  (9)  the 
words  "except  by  way  of  appeal"  have  been 
put  in  italics  suggesting  that  the  learned 
Judge  was  to  some  extent  influenced  by 
them.  That  again  was  a  case  only  of  revision 
of  an  order  of  an  Assistant  Collector.  I  have 
suggested  above  when  outlining  those 
two  cases  that  in  neither  of  them  was  the 
Suggested  effect  of  the  words  necessary  to 
support  the  decision.  I  am  unable  to  ap- 
preciate that  the  words  "except  by  way  of 
appeal"  justify  any  such  inference  at  all. 
In  the  view  that  I  take  that  s.  167  only 
applies  to  original  proceedings,  the  words 
are  not  superfluous  or  without  meaning;  but  J 
on  the'contrary,  they  are  found  to  be  essential 
and  of  import  to  effect  consistency  bet- 
ween s.  167  and  s.  196.  But  for  those  words 
it  is  clear  that  s.  167  would  be  making 
illegal  entirely  the  hearing  of  certain  origi- 
nal proceedings  in  any  Civil  Court  whilst 
s  196  would  be  declaring  that  the  hearing 
of  such  original  proceedings  in  a  Civil 
Court  was  not  in  every  case  to  be  regarded 
as  invalid.  The  words,  then,  "except  in  the 
way  of  appeal  as  hereinafter  provided"  are 
necessary  and  have  a  definite  appropriate 
intention  and  effect  if  the  view  which  I 
suggest  be  correct  that  s.  167  only  applies  to 
original  proceedings. 

I  am,  therefore,  of  opinion  with  the  great- 
est respect  for  other  decision  to  the  con- 
trary, that  decisions  which  proceeded  on 
the  assumption  tfiat  s.  167  has  anything  to 
do  with  appellate  or  revisional  proceedings 
(except  to  the  limited  extent  that  1  have 
specified)  cannot  be  supported.  I,  therefore, 
hold,  firstly,  that  there  is  nothing  in 
s.  167  precluding  the  hearing  by  the  High 
Court  under  s.  115  of  the  C.  P.  0.  of  a  re- 
vision of  an  order  passed  by  aDistrict  Judge 
under  s.  177  of  the  Tenancy  Act;  and,  further 
that  it  is  reasonable  that  the  High  Court 
should  have  such  power,  and  that  to  hold 


SOUNDAfcA  RAJAN  17.  NATARAJAN. 


[98' C 

that  it  Has  sncU  power  is  in  accord  with 
B.  193  of  the  Tenancy  Act  ;  and  secondly 
that  s.  167  is  only  concerned  with  original 
proceedings. 

For  both  these  reasons  I  would  hold  that 
this  Court  has  power  to  entertain  a  revision 
of  an  order  made  by  a  District  Judge  under 
s.  177  of  the  Tenancy  Act. 

As  some  of  these  considerations  were 
urged  before  us  on  one  side  or  the  other,  I 
have  thought  it  desirable  to  put  them  on 
record  and  to  express  my  opinion  thereon  ; 
and,  in  fact,  we  cannot  really  reject  the  re- 
vision oh  its  merits  without  by  implication 
approving  the  view  that  a  revision  lies. 

I'  agree,  however,  that  it  is  not  a  case  in 
which  wd  should  refer  the  matter  to  a  Pull 
Bench  as  in  the  course  of  the  hearing  we 
have  been  satisfied  that  the  application  has 
no  merits.  I  agree,  therefore,  in  the  order 
proposed  by  my  brother, 

By  the  Court.— The  appeal  is  dis- 
missed with  costs. 

N.  H.  Appeal  dismissed. 

LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No,  1178  OF  1924. 

December  22,  1924. 

Present : — Mr.  Justice  LeRossignol. 

MUHAMMAD — PLAINTIFF — APPELLANT 

versus 

MUHAMMAD  ALI  AND  ANOTHER— 
DEFENDANTS — RESPONDENTS. 

Preemption — Pre vio us  refusal— Wa  i ver 

A  previous  refusal  by  the  pre-imptor  to  buy  the 
property  on  the  ground  of  his  inability  to  buy  ope* 
rates  as  a  waiver  of  his  right  to  pre-empt. 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Jhelum,  dated  the  3rd  January 
1924,  reversing  that  of  the  Munsif,  First 
Class,  Jhelum,  dated  the  30th  November  1922. 

Llala  AmarNathChona,  for  the  Appellant. 

Lala  Gobind  Ram  Khanna,  for  the  Re- 
spondents. 

JUDGMENT.— The  plaintiff  in  this 
case  asked  for  two  reliefs,  first,  for  a  decla- 
ration that  the  sale  impeached  should  not 
affect  his  reversionary  rights,  and  secondly 
in  the  alternative  for  possession  of  the 
laud  as  a  pre-emptor.  The  first  Court 
found 'that  the  sale  was  without  necessity 
and,  therefore,  gave  the  plaintiff  a  declara- 
tion. The  learned  District  Judge  in  appeal 
told  that  the  sale  was  for  necessity  and 
dismissed  the  suit  evidently  overlooking  the 
alternative  claim  to  pre-empt. 

Sometime  before  effecting  the  sale  now 
iriv.iiM^-l  4he  vendor,  a  widow,  applied  to 
trie  C:-ile?' :r  for  permission  to  sell  her  land 


239 


to  one  Fat  »,h  Mtilummai  a  non-agricaltur- 
ist  lor  Rs.  GOO  and  in  those  proceed mtfs 
the  plaintiff  on  the  18th  August  TJ^l  made 
a  statement  to  the  effect  that  he  could  not 
afford  to  buy  the  land  and  that  so  far  as  he 
was  concerned  the  vendor  was  at  liberty  to 
sell  it  to  Fateh  Muhammad  for  Rs.  600  or 
to  anybody  who  would  give  her  the  cost 
price  for  it.  The  Collector  refused  to 
sanction  the  sale  of  the  land  to  Fateh. 
Muhammad  on  the  ground  that  it  was  worth 
more  than  Rs.  600. 

The  first  Court  held  that  this  statement 
of  the  plaintiff  did  not  amount  to  waiver 
but  merely  to  a  refusal  to  nurchase  the  land 
for  Rs.  600  and  the  learned  District  Judge 
merely  says  "I  am  not  prepared  to  dispute 
that  finding." 

A  second  appeal  has  been  preferred  to 
this  Court  and  I  am  asked  to  remand  the 
case  so  that  the  plaintiff' s  right  to  pre-empt 
may  be  determined  but  I  see  no  need  for 
adopting  that  course  as  1  hold  it  is  clearly 
proved  that  the  plaintiff  in  1921  waived  his 
right  to  purchase  the  land  011  the  ground 
that  he  had  no  money  at  all  and  could  not 
afford  to  purchase  it.  The  land  was  sub- 
sequently sold  to  the  present  vendee  for 
Rs.  500  and  I  do  not  think  that  the  plaint- 
iff should  now  be  allowed  to  intervene 
after  his  clear  disclaimer  of  any  intention 
to  purchase  the  land  at  any  price. 

I,  therefore,  dismiss  the  appeal  with  costs, 

N.  H.  Appeal  dismissed. 


PRIVY  COUNCIL. 

APPEAL  FROM  THE  MADRAS   HIGH  COURT. 

July  16,  1^5. 

Present: — Viscount  Haldane,  Lord 

Wrenbury  and  Lord  Bianesburgh. 

8.  SOUNDARA  RAJAN  AND  OTHERS 

— PLAINTIFF* — APPELLANTS 

versus 
C.  M.  NATARAJANT  AND  OTHERS 

—  DEFENDANTS—  RESPONDENTS. 
Succession  Act  (X  of  1865),  ss  101,  102— Hindu  Law 
— Will,  construction  of  -Devise  of  estate  to  daughters 
and  thereafter  to  their  children — Perpetuities,  rule  of. 
A  Hindu  testator  gave  the  following  direction  m  his 
Will  with  regard  to  the  disposal  of  his  property  —"I 
give,  devisj  and  bequeath  all  my  estate  and  effaets 
immovcable  and  moveable  unto  my  Trustees  upon 
Trust  that  my  Trustees  shall  sell,  call  in  and  convert 
into  money  the  same,  or  such  part  thereof  as  shall  not, 
consist  of  money  and  shall  with  and  out  of  the  pro- 
ceeds of  such  sale  calling  in  and  conversion  and  with 
and  out  of  my  ready  money  pay  my  funeral  find  testa- 
mentary expenses  and  debts  and  shall  stand  possessed 
of  the  residue  of  such  proceeds  upon  Trust  to  sefc 


290 


RAJAN  V.  NATARAJAN. 


[92  I.  0.  1926] 


ftpftrt  thereout  and  invest  in  promissory  notes  of  tlio 
Government  of  India  such  a  sum  or  sums  of  money 
as  when  so  invested  as  aforesaid  \\ill  produce  by  the 
inexjme  thereof  u  monthly  sum  of  rupees  one  hunched 
and  to  pay  such  income  monthly  to  my  wife  0  Andal- 
ammal  during  her  life  and  from  and  after  her  decca.se 
to  stand  possessed  of  the  w.ud  sum  and  the  invest- 
ments for  the  time  being  lepresentwg  tin*  same  upon 
the  Ti usts  hereinafter  declared  concerning  the  residue 
of  my  estate  And  as  to  the  residue  of  my  estate  I 
direct  that  my  trustees  shall  at  their  dibcietion  invent 
the  same  in  any  of  the  modes  of  investment  in  which 
trustees  arc  by  law  authonsed  to  invent  tiust  funds  and 
shall  stand  possessed  of  the  wild  residuary  trust  monies 
and  the  investments  for  the  time  being  ITJ-II  «•'  i-;i  i: 
same  (hereinafter  called  "the  icsiduaiy  trust  funds  ;, 
in  Trust  to  apportion  the  residual y  tiust  funds  into 
as  many  equal  parts  or  bhuirs  as  theie  may  he 
daughteis  of  mine  living  at  the  time  of  my  decease  or 
who  having  pre-deceased  me  .shall  have  left  issue  her 
or  them  and  me  surviving  and  to  pay  the  income  of 
each  of  such  equal  parts  of  shares  to  my  nnd 
daughters  respectively  during  theii  letpedne  livet>. 
And  from  and  after  the  decease  of  each  of  my  said 
daughters  to  bland  possessed  of  the  shaie  of  the 
residuary  tuibt  funds  feu  appropriated  asafoicsaid  to 
such  daughter  upon  Tuiht  foi  all  thu  children  ot  Midi 
daughter  who  shall  attain  the  age  of  twenty-one  yeais 
in  equal  shares  and  if  there  shall  be  only  one  such 
eJiild  the  whole  to  be  in  trust  for  that  (  ne  child  and 
in  the  event  of  any  of  my  said  daughteis  dying  with- 
out leaving  lawful  issue  her  or  them  suiviving  1 
direct  that  my  trustees  shall  stand  possessed  of  the 
share  or  shares  so  appiopriated  to  her  or  them  as 
aforesaid  upon  Trust  for  all  the  children  of  the  other 
or  others  of  my  said  daughters  who  shall  attain  the 
age  of  twenty-one  yeais  as  tenants-in-coinmon  in 
equal  shares  per  tttirpes.  Provided  always  arid  1 
hereby  declaie  that  if  any  daughter  of  mine  shall  die 
in  my  lifetime  lea^  ing  lawful  issue  at  the  time  of  my 
death  such  issue  as  shall  attain  the  age  of  twenty-one 
years  shall  take  and  if  more  than  one  MS  tenant s-m- 
common  in  equal  abates  per  stirpes  the  share  which 
would  have  been  •  s  afoieasid  to  such 

daughter  of  mine  had  surv  m-d  me"- 

Held,  (1)  that  on  a  proper  construction  of  the  Will 
the  three  daughters  took  only  for  their  Jives  ,  [p.  1J(.)2, 
col  2] 

(2)  that  inasmuch  as  the    bequest   in  favour  of  the 
daughters1  child i en,   tested  as   at  the   testators   death 
made  delay  in  vesting  the  estate    be\ond  the   lifetime 
of  the  daughters    and  the  minoiity    of   seme  of  their 
children  possible,  the  bequest  in  favour  of  the  child  i  en 
was    inoperative  having    regard  to  the   provisions  of 
B.  101  read  with  s  102  of  the  Succession  Act ;     [p  293 
col  1] 

(3)  that,  therefore,  at    the  termination  of  the  life- 
estate  cf  the  daughters  of  the  testator  the  estate  would 
devolve  upon  the  next  heirs  as  upon  an  intestacy,  [ibid  j 

Appeal  from  the  decision  of  the  Madras 
High  Court  (Sir  John  Wallis,  KT.,  Chief 
Justice,  and  Mr.  Justice  Ramesam)  in  Origi- 
nal Side  Appeal  No.  15  of  1920,  and  Civil 
Miscellaneous  Petition  No.  3350  of  1920, 
dated  December  16,  1920,  and  printed  as  62 
Ind.  Gas.  9$7,  affirming  a  decree  of  the 
Court  in  its  Ordinary  Jurisdiction,  dated 
November  16,  1919. 

Messrs.  Clauson,  K.  C.,  and  Narasimhaw^ 
for  the  Appellants, 


Mr.  Upjohn,  K.  C.,  Sir  Walter  Schwabe, 
K  C.,  and  Mr.  A.  M.  Talbot,  for  the  Re- 
spondents. 

JUDGMENT. 

Viscount  Haldane.— The  questions 
which  aiise for  decision  on  this  appeal  relate 
to  the  construction  and  validity  of  the  provi- 
sions of  a  Will,  dated  27th  April,  1897,  and 
made  by  a  Hindu,  C.  It  at  D  a  Mudaliar,  \vho 
died  in  19U4.  He  left,  a  widow  and  three 
daughters  One  of  these  daughters,  Ya^o- 
dammal,  died  in  Ii407;  another,  Kajammal, 
in  19('8;  and  the  third  Nilayathatchi  Animal, 
in  1^18  Yasodammal  had  four  childien, 
three  of  them,  two  sons  and  a  daughter,  bom 
before  the  death  of  the  testator  in  1904,  and 
one  of  Ihem,  born  afteruaids  in  1807. 
Rajammal,  the  second -i-!':^l,:M.  had  a  son 
T'  _:  ••.••"•  •  *f  •  who  was  bom  in 
l:u/.  liiis  c.miu  v\ as  constituted  a  Waid 
of  Court  in  1910.  Nilayathatchi  Ammal, 
the  thiid  daughter,  had  six  children,  three 
prr.s  and  thiee  daughteis,  all  bom  after 
11)01  Of  these  various  families  the  three 
sons  of  the  third  daughter  were  plaintiffs 
in  the  suit  and  arc  appellants  to-day  The 
others  weie  defendants  and  are  now  les- 
ponder.ts. 

It  will  be  convenient  first  of  all   to  set 
out  the  material  poitions  of  the  Will :-  - 

*'I  gUe  devise  and  bequeath  all  my  estate 
and  effects  immoveable  and  moveable  unto 
my  Tiustees  upon  Tiust  that  my  Trustees 
shall  sell,  call  in  and  convert  into  money 
the  same  or  such  part  thereof  as  shall  not 
consist  of  money  and  shall  with  and  out  of 
the  proceeds  of  such  sale  calling  in  and 
conversion  and  with  and  out  of  my  ready 
money  pay  my  funeral  and  testamentary 
expenses  and  debts  and  shall  stand  possess- 
ed of  the  lesidue  of  such  pioceeds  upon 
TriiJbt  to  set  apait  thereout  and  invest  in 
promissory  notes  of  the  Government  of 
India  such  a  sum  or  sums  of  money  as 
when  so  invested  as  aforesaid  will  produce 
by  the  income  theieof  a  monthly  sum  of 
rupees  one  hundred  and  to  pay  such  income 
monthly  to  my  wife  C.  Andalammal  dur- 
ing her  life  and  from  and  after  her  decease 
to  stand  possessed  of  the  said  sum  and  the 
investments  for  the  time  being  representing 
the  same  upon  the  Trusts  hereinafter  de- 
clared concerning  the  residue  of  my 
estate.  And  as  to  the  residue  of  my  estate 
I  direct  that  my  Trustees  shall  at  their  dis- 
cretion invest  the  same  in  any  of  Ihe  modes 
of  investment  in  which  trustees  are  by  law 
authorised  to  invest  trust  funds  and  shall 


[92  I.  0. 

stand  possessed  of  the  s&id  residuary  trust 
monies  and  the  investments  for  the  time 
being  representing  same  (hereinafter  called 
"the  residuary  trust  funds11),  in  Trust  to 
apportion  the  residuary  trust  funds  into 
as  many  equal  parts  or  shares  as  there 
may  be  daughters  of  mine  living  at  the 
time  of  my  decease  or  who  having  pre-deceas- 
ed  me  shall  have  left  issue  her  or  them  and 
me  surviving  and  to  pay  the  income  of 
each  of  such  equal  parts  of  shares  to  my 
said  daughters  respectively  during  their 
respective  lives.  And  from  and  after  the 
decease  of  each  of  my  said  daughters  to 
stand  possessed  of  the  share  of  the  residuary 
trust  funds  so  appropriated  as  aforesaid  to 
such  daughter  upon  Trust  for  all  the 
children  of  such  daughter  who  shall  attain 
the  age  of  twenty-one  years  in  equal  shares 
anl  if  there  shall  be  only  one  such  child 
ths  whole  to  be  in  trust  for  that  one  child 
and  in  the  event  of  any  of  my  said  t'aughters 
dying  without  leaving  lawful  issue  her  or 
them  surviving  I  direct  that  my  trustees 
shall  stand  possessed  of  the  share  or  shares 
so  appropriated  to  her  or  them  as  aforesaid 
upon  Trust  for  all  the  children  of  the 
other  or  others  of  my  said  daughters  who 
shall  attain  the  age  of  twenty-one  years 
as  tenants-in  common  in  equal  shares  per 
stirpes.  Provided  always  and  I  hereby 
declare  that  if  any  daughter  of  mine  shall 
die  in  my  life-time  leaving  lawful  issue  at 
the  time  of  my  death  such  issue  as  shall 
attain  the  age  of  twenty-one  years  shall 
take  and  if  more  than  one  as  tenants  in- 
common  in  equal  shares  per  stirpes  tl  e 
share  which  would  have  been  so  appropriat- 
ed as  aforesaid  to  such  daughter  of  mine 
and  her  issue  if  she  had  survived  me.1* 

The  suit  was  instituted  in  the  High  Court 
of  Madras  for  a  Hue  construction  of  the 
Will  and  for  administration.  The  plaintiffs, 
the  present  appellants,  were,  as  already 
staled,  grand-son'.*  of  the  testator  and 
children  of  his  third  daughter.  Theircase 
is  that  they,  along  with  the  sons  of  the 
other  two  daughters,  are  entitled  to  succeed 
to  the  testator's  residuary  estate  subject 
to  an  annuity  to  the  widow  and  to  mere 
life-estates  given  to  the  three  daughters, 
who  are  all  now  dead.  For  they  contend 
that  the  trusts  in  favour  of  grand-children, 
following  in  the  Will  on  those  for  the 
<!  i.i^htor-i  for  life,  are  void  by  the  law  of 
Jniia.  Ti.o  case  of  the  respondents,  on  the 
other  hand,  is  that  the  trusts  introduced 
in  favour  of  grand-children  were  validly 


TU  RAJ  AN  1).  kATARA  >A». 


created  by  the  Will,  or,  alternatively,  that 
the  three  daughters  of  the  testator  in  the 
result  took  his  residue  absolutely. 

The  case  was  tried  before,  Mr.  Justice 
Coutts  Trotter,  who  decided  in  substance 
(1)  that  the  testator  gave  oiily  a  life-estate 
to  each  of  his  three  daughters,  and  not  an 
absolute  estate,  remarking:  "It  seems  to  me 
clear  that  what  the  testator  wished  to  do 
was  to  divide  the  income  of  his  estate  into 
three  shares  for  the  benefit  of  his  three 
daughters  respectively  during  their  life- 
time, and  thereafter  the  corpus  of  each 
share  should  belong  to  such  of  the  children 
of  each  daughter  as  should  attain  the  age 
of  twenty-one  years11;  (2)  that  under  the 
provisions  of  s.  3  of  the  Hindu  Wills  Act, 
l870,  and  the  rules  laid  down  by  the  Lords 
of  the  Judicial  Committee  in  the  case  of 
Juttendiomohun  Tayore  v.  Ganendromohun 
Tagore  (1),  and  other  decisions,  the  gifts  to 
the  grand-children  of  the  testator  born  after 
his  death  were  void;  but  that  the  provisions 
of  the  Madras  Act  1  of  1914,  which  were  not 
in  his  opinion  ultra  vires  of  a  Provincial 
Legislative  Council,  validated  the  bequest 
in  this  respect.  The  learned  Judge  was 
further  of  opinion  that  the  testator's  Will 
did  not,  for  reasons  which  he  gave,  contra- 
vene the  Indian  rule  against  perpetuities  in 
view  of  the  provisions  of  Act  IX  of  1875,  as 
amended  by  the  Guardians  and  Wards  Act, 
1890. 

There  was  an  appeal  to  the  Appellate 
Court  Civil  Jurisdiction  of  the  High  Court 
of  Judicature  at  Madras.  Before  judgment 
on  that  appeal  was  delivered  certain  com- 
promises were  made  between  certain  of  the 
parties,  for  the  division  between  them  of 
what  might  be  the  fruits  of  this  litigation. 
Into  the  terms  of  the  compromise  it  is  not, 
however,  necessary,  at  this  stage  of  the  suit, 
to  enter. 

The  appeal  was  heard  by  the  Chief  Justice 
(Sir  John  Wallis)and  Mr.  Justice  Ramesam. 
These  learned  Judges  did  not  agree  with 
the  view  of  the  Trial  Judge  as  to  the  effect 
of  the  Indian  Majority  Act,  1875,  and  of 
the  Madras  Act  I  of  1914  (which  they  held 
to  have  been  ultra  vires  of  the  Provincial 
Legislature,).  They  were  accordingly  of 
opinion  that  the  disposition  of  the  Will 
could  not  take  effect  as  regards  beneficiaries 
born  after  the  death  of  the  testator,  and,  as 
the  provisions  in  favour  of  issue  of  daugh- 
ters were  obnoxious  to  s.  101  of  the  Indian 

(1)  I.  A.  Supp.  Vol.  47;  18  W.  R,  359;  9  B,  L,  R, 
377;  3  Sar,  P,  0,  J,  82  (P,  0,), 


292, 


SOUNDARA.IUJJLtf  V. 


Succession  Act,  1865,  they  thought  that  the 
whole  disposition  infavour  of  the  daughters' 
children  failed  as  a  result  of  a.  102  of  that 
Act.  They  held,  however,  that  upon  the 
true  construction  of  the  Will  the  intention 
of  the  testator  was,  in  the  first  instance,  to 
make  an  absolute  gift  in  favour  of  each  of 
his  three  daughters,  the  provisions  which 
followed  being  a  mere  settlement  of  the 
gift  thus  absolutely  made,  and  that  con- 
sequently under  s.  126  of  the  Indian  Suc- 
cession Act,  1865,  the  daughters  of  the  tes- 
tator took  absolutely,  when  these  provisions 
failed  of  effect.  That  section,  made  applica- 
ble to  the  testator's  Will  by  the  Hindu  Wills 
Act  (XXI  of  1870),  is  as  follows:  — 

*'  Where  a  testator  absolutely  bequeaths  a 
fund,  so  as  to  sever  it  from  his  own  estate, 
but  directs  that  the  mode  of  enjoyment  of 
it  by  the  legatee  shall  be  restricted  so  as , 
to  secure  a  specified  benefit  for  the  legatee; 
if  that  benefit  cannot  be  obtained  for  the 
legatee,  the  fund  belongs  to  him  as  if  the 
Will  had  contained  no  such  direction." 

This  is  an  enactment   in  statutory  form 
of  a  principle  which  was  already  familiar  to 
English  lawyers.     The  case  of   Lassence  v. 
Tierney  (&)  shows  that  where,   reading  the 
Will  as  a  whole,  the  intention    to  confer  an 
absolute  estate  in  the  first  instance  is  ex- 
pressed or    implied,  and  following  on  that, 
absolute    estate  there   is  a    provision  for 
settlement  which    in   the    event  cannot  be 
operative,  then  the  words  of  prior  intention 
prevail  and  the  absolute  estate  takes  effect 
notwithstanding  the  failure  of  the  provision 
for  settlement  that  follows,    In  India  the 
words  in  s.  126  must  be  followed  as   laying 
down    the  principle,  but  the  principle  is 
not  substantially   different  from  what  was 
expressed  in  Lassence  v.  Tierney  (2).     Their 
Lordships  have  given  consideration  to  the 
terms  of    the    Will  in   the    present  case 
The  material  directions    are  those  to  the 
trustees  "to  apportion  the  residuary  trust 
funds  into    as  many  equal  parts  or  shares 
as  there  may  be  daughters  of  mine   living 
at  the  time  of  my  decease  or  who  having 
predeceased  me  shall  have  left  issue  her  or 
them  and  me  surviving.1*    The  trustees  are 
then  to  "pay  the  income  of  each  of  such 
equal  parts  or  shaies  to  my  said  <i;uiLT1.1i  :.- 
respectively  during  their    respective  lives. 
And  from  and  after  the  decease  of  each  of 
my  said  daughters  to  stand  possessed  of  the 
share  of  the  residuary  trust  funds  so  appro 

(2)  (1849)  1  Mac.  &  G.  551;   2  H,  &  Tw.  115;  14  Jur, 
JB;  41  E,  B  1379;  84  R.  R.  158, 


priated  as  aforesaid  to  such  daughter  upon 
trust  for  the  children  of  such  daughter  who 
shall  attain  the  age  of  21  years."  The  tes- 
tator  then  directs  that  in  the  event  of  any 
of  the  daughters  dying  without  leaving  law- 
ful issue  the  trustees  are  to  "stand  posses* 
sed  of  the  share  or  shares  so  appropriated 
to  her  or  them  as  aforesaid"  on  trust  for 
her  children  who  shall  attain  twenty-one. 
He  goes  on  to  introduce  a  proviso  under 
which,  if  a  daughter  dies  in  his  life- time 
leaving  lawful  issue,  such  issue  as  shall 
attain  21  years  are  to  take  the  share  "which 
would  have  been  so  appropriated  as  afore- 
said to  such  daughter  of  mine  and  her  issue 
if  she  had  survived  me.11 

Reading  the  Will  as  a  whole  their  Lord- 
ships are  unable  to  agree  with  the  cpnclu- 
sion  about  the  construction  of  these  clauses 
come  to  by  the  Court  of  Appeal.  They 
think  that  the  first  trust  for  apportionment 
directs  merely  division  of  the  fund  into  as 
many  equal  parts  or  shares  as  there  are 
daughters  living  at  the  testator 's  death,  or  • 
sets  of  issue  then  living  of  daughters  then 
dead. 

The  words  of  apportionment  are  introduc- 
ed for  merely  arithmetical  purposes  and  so 
far  do  not  dispose  of  property.  In  order  to 
find  the  interest  given  under  the  Will  it  is 
necessary  to  proceed  to  the  further  words, 
and  these,  in  the  case  of  a  daughter,  con- 
fine her  interest  to  a  right  to  income  for 
life.  They  are  followed  by  words  of  dis- 
position in  favour  of  the  children  and  issue. 
This  view  of  what  may  be  called  the  ap- 
portionment clause  is  even  more  apparent 
as  regards  jtjhe  suggested  gift  to  issue  of  a 
deceased  daughter  There  is  no  unqualifi- 
ed gift  to  them  by  the  apportionment  clause. 
The  effective  gift  in  the  later  words  of  the 
Willis  to  such  of  a  deceased  \  .^  ••:  :'* 
children  as  attain  21.  And  if,  o:  ••  -  \\  .\\ 
it  could  be  said  that  the  testator  had  used 
the  words  "issue"  and  "children11  inter- 
changeably then  the  limitation  to  such 
children  only  as  attained  21  would,  if  theie 
were  a  prior  gift  to  them  without  that- 
qualification,  be  merely  otiose.  If  so  much 
cannot  be  said  then  there  is  no  room  for 
the  operation  of  the  rule,  Their  Lordships 
are,  therefore,  unable  to  find  in  this  Will  the 
absolute  bequests  required  by  s.  126.  They 
think  that  the  three  daughters  took  only 
for  life,  and  that  it  must  remain  to  be  seen, 
whether  the  later  gifts  iix  favour  of  their 
children  or  other  issue  are  validly  made 
under  Hindu  Law, 


SOUNDAKA  KAJAN  *.  NATARAJAN. 


293 


Turning  to  this  question,  the  first  obser- 
vation to  be  made  is  that  the  Will  has  ap- 
parently been  drawn  by  someone  familiar 
with  English  Law,  but  not  with  the  Indian 
Statutes  which  apply.  If  it  were  only  a 
question  of  the  English  rule  against  per- 
petuities, there  would  be  no  objection  to 
the  Will.  But  there  comes  in  s.  101  of  the 
Indian  Succession  Act  of  1865.  Under  this 
section  no  bequest  is  valid  whereby  the 
vesting  of  the  thing  bequeathed  may  be 
delayed  beyond  the  life-time  of  one  or  more 
persons  living  at  the  testator's  decease,  and 
the  minority  (ending  at  18)  of  some  person 
who  shall  be  in  existence  at  the  expiration 
of  that  period  and  to  whom,  if  he  attains 
full  age,  the  thing  bequeathed  is  to  belong. 
The  validity  of  the  gifts  now  in  question 
must  be  scrutinized  as  at  the  death  of  the 
testator,  i.  e.,  1904,  and  if  s.  101  then  applied 
the  disposition  subsequent  to  the  life-time 
of  the  testator's  daughter  was  invalid,  for 
the  children  of  the  daughters  take  only  in 
classes,  and  by  s.  102  of  the  Succession  Act, 
if  a  bequest  is  made  to  a  class  of  persons, 
with  regard  to  some  of  whom  it  is  inopera- 
tive by  reason  of  the  rules  contained  in 
s.  lOl,  the  bequest  is  wholly  void.  It  being 
plain  that  this  bequest,  tested  as  at  the 
testators's  death,  made  delay  beyond  the 
lifetime  of  the  daughters  and  the  minority 
of  some  of  their  children  possible,  the 
bequest  in  favour  of  the  children  was  in- 
operative. It  was  suggested,  however,  that 
this  section  had  no  application  to  the  Will 
of  a  Hindu  by  reason  of  the  fact  that,  as  is 
Bhown  by  the  Juttendromohun  Tagore 
v.  Ganendromohun  Tagore  ({.}  any  dis- 
position in  such  a  Will  is  invalid  if  the 
idisponee  is  an  unborn  person  at  the  testator's 
death.  The  section,  it  was  said,  is  only 
applicable  to  dispositions  which  are  not 
otherwise  ineffective.  One  answer  to  this 
was  that  in  1914  the  Madras  Act  above  refer- 
red to  was  passed  which  purported  to  get 
rid  of  the  difficulty  caused  by  the  Juttendro- 
mohun  Tagore  v  Ganendromohun  Tagore 
(1)  decision.  This  Act  provides  by  s.  3  that 
a  disposition  shall  not  be  invalid  by  reason 
only  that  the  transferee  or  legatee  is  an 
unborn  person  at  the  date  of  the  transfer, 
or  the  death  of  the  testator.  Questions  were 
raised,  as  has  already  been  observed,  in  the 
Courts  below  as  to  the  validity  of  the 
Madras  Act,  but  these  questions  are  now 
superseded  by  the  Act  of  the  Indian  Legis- 
lature, Act  V11I  of  1921,  which  has  validated 
tte  law  contained  in  the  Madras  Act,  and 


repeats    in  s.  5  a  provision  identical  with 
s.  lul    of  the  Succession  Act,   1«65.    The 
result  is  to  make  that  section  applicable  to 
this  Will,  upon  a  view  which  was  not  con- 
tested before  their  Lordships  if  the  Madias 
Act  or  the   Act    of   1921   were  treated  as 
operative.    Now     in  that    section,  as  has 
been  already  said,  a  "minor"  means  any 
person  who  shall  not  have  completed  the 
age  of  eighteen   years.    It  was,  however, 
pointed  out  by  the  respondents  that,  by  the 
Majority  Act,  1875,  every  minor  of  whose 
person  or  property  a  guardian  has  been  or 
shall  be  appointed  by  any  Court  of  Justice, 
and  every  minor  under  the  jurisdiction  of 
any  Court  of  Wards,  shall,  notwithstanding 
anything  contained  in   the  Indian  Succes- 
sion   Act  or  in   any  other  enactment,    be 
deemed  to  have  attained  his  majority  when 
he    shall    have  completed    his  age  of  21 
yeats  and  not  before;    and   this  is  accom- 
panied  by  a  provision    that    every    other 
person  domiciled    in  British  India  shall  be 
deemed  to  have  attained  his  majority  when 
he  shall  have    completed    his  age  of   18 
years  and  not  earlier.    These   provisions  do 
not,   however,  in  the  opinin  of  their  Lord- 
ships,help    the    respondents.    At  the  tes- 
tator's death — for  this  purpose  the  relevant 
date— it  was  not  clear,  and  could  not  be 
certain,  whether  all  or  any  of  the  members 
of  the  classes  in  whose  favour  the  disposi- 
tion was  made  would  ever  have  guardians 
appointed.    The  provision  of  the  Will  fixing 
21  in  every  case  as  the  age  of  vesting  was, 
therefore,  in  contravention  of  s.   1G1,   and 
the  whole  gift    is    invalid    under  s.   102. 
Their  Lordships  are  unable  to  agree  with 
the  views  expressed  in  some  detail  on  this 
point  by  the  learned  Trial  Judge. 

Their  Lordships  are  of  opinion,  for  the 
reasons  they  have  given,  that  the  appeal 
must  succeed.  There  will  be  a  declaration 
that  the  appellants  are  entitled  to  their 
respective  shares  in  the  property  in  suit  as 
upon  an  intestacy,  subject  to  the  life- 
estates  (now  at  an  end)  in  favour  of  the 
testator's  daughters  This  will  be  without 
prejudice  to  the  compromises  referred  to 
in  the  decree  appealed  from,  and  to  the 
sanction  given  to  them  by  that  decree. 
The  case  must  go  back  to  the  High  Court 
for  further  inquiry  on  that  footing.  Their 
Lordships  do  not  think  it  necessary  to 
interfere  with  the  orders  as  to  costs  made 
in  the  Courts  below.  They  think  that  the 
costs  of  this  appeal  should,  in  the  game 
way,  be  payable  out  of  the  estate. 


£94 


MAHOMED  GHAUS  V.  MAHOMED  ALT  SHAH. 


[92  I.  0. 


They  will  humbly  advise  His  Majesty  ac- 
cordingly. 

z.  K,  Appeal  accepted. 

Solicitors  for  the  Appellants: — Mr.  H.  S. 
L.  Polak. 

Solicitors  for  the  Respondents; — Mr. 
Douglas  Grant, 


LAHORE  HIGH  COURT* 

MISCELLANEOUS  CIVIL  APPEAL  No.   1291 

OF  1924. 

January  27,  1925. 

Present: — Mr.  Justice  Jai  Lai. 

MAHOMED  GHAUS— DEFENDANT— 

APPELLANT 

versus 

MAHOMED  ALI  SHAH  AND  OTHERS 
— DEFENDANTS  AND  PLAINTIFFS — 
RESPONDENTS. 

Punjab  Limitation  (Custom)  Act  (I  of  1920),  ss  5, 
6,  scope  of — Limitation  Act  (IX  of  1008),  ss  6,  8 — 
Declaratory  suit  by  reverswner  after  majority — 
Limitation. 

Section  6  of  the  Punjab  Limitation  (Custom)  Act  of 
1920  really  gives  an  additional  period  of  one  year  to 
those  who  were  at  the  time  of  the  enforcement  of  the 
Act  entitled  to  institute  suits,  but  could  be  success- 
fully met  by  a  plea  of  limitation  owing  to  the  repeal 
of  the  Punjab  Limitation  (Ancestral  Land  Aliena- 
tion) Act  of  1900,  and  the  consequent  reduction  of  the 
limitation  by  the  new  Act  The  section,  however, 
does  not  control  the  operation  of  g.  5  of  the  Act. 
[p.  295,  col.  1  ] 

A  father  governed  by  Punjab  Custom,  having  a 
minor  son.  sold  certain  ancestral  property  on  1st 
April  1913  The  son  attained  his  majority  on  3rd 
July  1021.  In  a  suit  by  the  son  instituted  on  23rd  May 
1923,  for  a  declaration  that  the  sale  being  without 
necessity  would  not  affect  his  reversionaiy  rights 
it  was  objected  that  the  limitation  of  12  years  i  re- 
scribed  for  the  suit  by  Punjab  Limitation  {Ancestral 
Land  Alienation)  Act  of  1900  having  been  i  educed 
to  six  years  under  Punjab  Limitation  (Custom)  Act  of 
1920,  the  suit  was  governed  by  s.  6  of  the  Act,  and 
not  having  been  brought  within  one  year  of  the 
operation  of  the  said  Act  was  barred  by  limitation  : 

Held,  that  s.  6  of  the  Act  did  not  apply  to  the  case, 
and  the  suit  was  within  time  under  s.  5  of  the  Act, 
read  with  PS  6  and  8  of  the  Indian  Limitation  Act  of 
1908*  [ibid.] 

Miscellaneous  appeal  from  an  order  of 
the  District  Judge,  Ljallpur,  dated  the 
13th  March  1924,  reversing  that  of  the 
Sub-Judge,  Sheikhupura,  dated  the  5th 
January  1924. 

Lala  Badri  Das,  R.  B.,  for  the  Appellant. 

Mr.  Sagar  Chand  for  Mr.  Shah  Nawaz, 
for  the  Respondents. 

JUDGMENT.— The  legal  point  involv- 
ed In  this  secgnd  appeal  is  of  considerable 


difficulty.  In  order  to  understand  it  the 
following  statements  of  facts  will  be  use- 
ful:— 

Raji  Shah,  the  father  of  the  two  plaint- 
iffs, sold  the  land  in  dispute  to  defendants 
Nos.  1,  2  and  3  on  the  1st  of  April  1913.' 
Mahomed  Ali  Shah,  plaintiff,  was  a  minor 
at  that  time  and  Imam  Shah,  the  other 
plaintiff,  had  not  yet  been  born.  Mahomed 
Ali  Shah  attained  his  age  of  majority 
on  the  3rd  July  1921  and  this  suit  was 
instituted  on  the  23rd  May  1923  for  a1 
declaration  that  the  sale  in  question  was 
fictitious  and  without  consideration  or 
necessity  and  did  not,  therefore,  affect'  the 
reversionary  rights  of  the  plaintiffs  on  the' 
death  of  the  alienor. 

The  first  Court  dismissed  the  suit  as 
barred  by  limitation,  but  the  District  Judge 
held  it  to  be  within  time  and  remanded^ 
the  case  to  the  first  Court  for  decision  en' 
the  merits.  The  defendant-vendees  have' 
appealed  to  this  Court. 

At  the   time  of  the  sale    the  period   of 
limitation  for  such  suits  was  provided   by 
the  Punjab    Limitation    (Ancestral    Land 
Alienation)   Act,    1900,   which    provided   a 
period  of  12  years,  but  that  Act  was  repeal- 
ed   by  the    Punjab   Limitation    (Custom) 
Act,   1920,   which  came  into  force  on  the' 
4th  January   1H20.    This  Act  reduced   the 
period  for   such   suits   to  six  years.     It   is1 
contended   on    behalf    of  the    defendant- 
appellant  that  the  present  suit  is  bariedv 
by  limitation  on  the  ground  that  limitation 
for  such  suits  in  relation  to  alienation  which 
took  place  before    the  4th   June    1920  is- 
only  one  year  by  virtue  of  R.  6  of  the  Punjab 
Limitation  (Custom)  Act,  1920. 

Section  5  of  that  Act  runs  as  follows  :  — 

41  Subject  to  the  provisions  contained  in 
ss.  4  to  25  (inclusive)  of  the  Indian  Limita- 
tion Act,   1908,  and   notwithstanding  any-1 
thing    to    the  contrary  contained  in    the' 
First  Schedule  of  the  said  Act,  every  suit,1- 
of  any  description  specified  in  the  Schedule 
annexed   to  this  Act,  instituted   after  the 
period  of  limitation  prescribed  therefor  in 
the  Schedule,  shall  be  dismissed,  although  ^ 
limitation  has  not  been  set  up  as  a  defence.1'  ' 

And  s.  ft  reads  as  follows  :  — 

"Notwithstanding  anything  herein  con-' 
taincd,  any  suit  for  which  the  period  of- 
limitation  prescribed  by  this  Act  is  shorter 
than  the  period  of  limitation  prescribed  by  - 
the  Indian  Limitation  Act,  1908,  or  by  the  > 
Punjab  Limitation  (Ancestral  Land  Alle*'- 
nation)  Act,  1900,  may  be  instituted  withia^ 


f  92 1  0, 1926J 

the  period  of  one  year  next  after  the  com- 
mencement of  this  Act  or  within  the  period 
prescribed    for    such    suit   by  the  Indian 
Limitation    Act,    19 J^,  or  by  the  Punjab 
Limitation    (Ancestral     Land     Alienation) 
Act,  1900,  whichever  period    expires  first.'1 
It   is  admitted  by   Mr.  Badri    Das,   who 
appeared    for  the    appellant,    that  if    the 
present  suit  is  governed  by  s.  5  then  the 
suit  is  within  limitation   by  virtue  of  S3  G 
and  rt  of  the  Indian  Limitation  Act.    The 
difficulty  is  really  created  by  the  opening 
sentence,  which  we  have  underlined,  of  s.  6 
of  the  Act  of  1920,  which  if  read  by  itself 
might  be  interpreted  to  mean  that  s.   5  of 
the  Act  does  not  govern  cases  to  which  the 
Punjab  Limitation  (Ancestral  Land  Aliena- 
tion) Act,  1900,  applied  but  has  ceased  to 
do  so  by  virtue  of  its  repeal  by  the  Act  of 
1920 ;  in  other  words  cases  in   which    the 
cause  of  action   to  contest  alienations  has 
already  arisen.      We    must    say  that  the 
phraseology  of  s.  6  of  the   Act  of  1920  is 
obscure  and  open  to  misconstruction,  but 
we  do  not  consider  that  the  contention  of 
Mr.  Badri  Das  is  sound.    The  point  is  one 
of  first  impression  and    reading  the   two 
sections  together,  i  e.,  ss.  5  and  6  of  the  Act 
of  Ii420,    we  hold   that  s.  6  really  gives  an 
additional  period  of  one  year  to  those  who 
were  at  the  time,   when  the  Act  carne  into 
force    entitled    to   institute    suits    of  the 
nature  a->  the  one  before  us,   but  could  be 
successfully  met  by  a    plea  of  limitation 
owing  to  the  repeal  of  the  Act  of  1900  and 
the  consequent  reduction  of  the   limitation. 
In  the  case  before  us  the  limitation  would 
have  expired   on  the  1st  April   1925  under 
the  Act  of  1900  and  on   the  3rd  July  1924 
under  s,  5  of  the  Act  of   1920  read    with 
ss.  6  and  8  of  the  Indian  Limitation  Act. 
The  opening  sentence  of  s.  6  of  the  Act  of 
1920  being  vague  we  are  unable  to  hold 
that  it  had    the  effect  of    depriving  the 
plaintiffs    of  their    right  which  they  had 
under  s.  5. 

We,  therefore,  hold  that  s.  6  of  the  Act 
of  1920  does  not  apply  to  the  case  of  the 
plaintiffs  in  the  suit  before  us.  In  view 
of  our  finding  on  this  point  the  other  point 
involved  does  not  arise.  The  result  is  that 
this  appeal  is  dismissed  with  costs. 

r^,  jj.  Appeal  dismissed. 


18RAM  V.  QAKOIA,  295 

NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  REVISION  No.  198-B  OP   1923. 

February  22,  1924. 

Present'—  Mr.  Kinkhede,  A.  J.  0. 

IS  R  A  M— APPLICANT 

versus 
GANGIA— NON-  APPLICANT. 

Rx  parte  decree,  setting  aside  of — Knowledge  of 
decree. 

A  proof  of  knowledge  of  the  decree  with  all  its  con- 
tents and  the  general  effect  thcieof  is  necessary  in 
order  to  support  a  plea  of  limitation  in  bar  of  an 
application  to  set  aside  an  e  c  part?  decree, 

Kamud  Xath  Hoy  v  Jatindra  A'u//i,  !)  Ind   Cas  181), 
38  0  31)4,  13  (J  L  J  221,  15  C  \V  N  390,  Pundhck  v 
Vastnit  Rao,  4  Ind.  Cas  58o,    11  Bom  L  R.  12%   and 
Hatnbullah  v.  Kaianju,  19  Ind  das.  12,5,  9  N  L  R,  35, 
referred  to 

Application  for  revision  of  an  order  of 
the  Small  Cause  Court,  Akola,  dated  28th 
July  1923,  iu  Miscellaneous  Case  No.  333  of 
1922. 

FACTS   appear  from  the  order  of  the 
Small   Cause   Court,  Akola:— The  original 
suit  was  fixed  for  19th  September  1922  and 
was  decided  exparte  on  that  day  as  the  report 
of  the  process-server  was  that  defendant  re- 
fused the  summons  on  14th  August  1922  and 
it  was  affixed  to  his  house.  Defendant  stated 
that  the  report  is  false.    His  application  is 
dated  30th  October  1922  and  to  explain  the 
delav  he  alleged  that    he  came  to  know  of 
the  decree  on  5th  October  1922.     This  fact 
was  to  be  proved  by  him.    He  himself  went 
into  the  witness-box  and  deposed   that  on 
5th  October  1922  K  G  Deshmukh  Pleader's 
clerk  informed  him  of  the  decree  and   that 
he  took  inspection  through   pelition  writer 
Kasarkar     Mr.  Deshmukh's  clerk  was  not 
examined  and    the  petition   writer   P.     W. 
No.  3  £ave  the  lie  to  his  story.    This  is  not 
proved.      The  fact  that  he   filed   his    first 
application  for  setting  aside  this  decree  on 
5th  October  1922  would  not  be  evidence  of 
the  fact  that  he  came  to  know  of  the  decree 
on  that  day  and  not  before.    And  since  he 
has  failed  to  prove  that  his  application  is  in 
time  under  Art.    164,    Limitation    Act,    it 
must  be  disallowed. 

It  is  true  that  the  summons  was  not  pro- 
perly served.    It  appears  fioni  defendant's 
evidence  that  the  process  server  did  not 
peisonally  go  to  the  defendant's  house  but 
called  him  to  the  chaori   thiough  the  poiil 
and  as    he  refused  to  come  the  report  of 
refusal  was  made     This  was  no  service  at 
all  but  that  does  not  help  the  applioan  t  A  rl  i-, 
cle  164  of  the  Limitation  Act  prescribes  the 
time  when  the  limitation  begins  to  run  the 


696 


MOTI  MAL-RAM  SARUP  V.  DAULAT  RAM. 


first  is  date  of  the  decree  and  the  present 
application  is  clearly  beyond  30  days  from 
that.  The  second  is  the  date  of  the  appli- 
cant's knowledge  of  the  decree  when  the 
summons  was  not  duly  served.  The  present 
application  comes  within  this  second  clause. 
In  such  a  case  it  is  for  the  applicant  to 
prove  when  he  came  to  know  of  it.  Ordi- 
narily in  the  absence  of  evidence  to  the  con- 
trary the  applicant's  s\\orn  testimony  would 
be  enough  but  in  this  case  applicant  gave 
the  names  of  the  persons  from  whom  he 
came  to  know  of  the  decree  and  one  of  them 
proves  the  falsity  of  his  statement  and  the 
other  was  not  summoned  at  all.  I  cannot  in 
these  circumstances  accept  applicant's 
statement  as  sufficient  and  rely  on  it.  I, 
therefore,  dismiss  the  application  with  costs. 

Mr.  G.  G.  Hatvalne,  for  the  Applicant. 

Mr.  M.  B.  Niyogi,  for  the  Non-Applicant. 

ORDER* — I  think  this  civil  revision 
must  succeed  on  the  short  ground  that 
there  is  no  material  on  record  to  show  that 
the  applicant  had  knowledge  of  the  decree 
complained  of  at  any  time  prior  to  5th 
October  1922.  The  cases  in  Kumud  Nath 
Roy  v.  Jatindra  Nath(l)  which  follows  Fund- 
lick  v.  Vasant  Rao  (2)  and  Habibullah  v.  Kar~ 
aaju  (3)  clearly  require  proof  of  knowledge 
of  the  particular  decree  with  all  its  contents 
and  the  general  effect  thereof.  Such  proof 
is  wanting  and  I  am  not,  therefore,  pre- 
pared to  accept  the  decision  disallowing 
the  defendant's  petition  for  a  hearing  on 
merits  as  correct.  The  application  is  allow- 
ed and  the  lower  Court  is  directed  to  d^al 
with  the  merits  of  the  case.  The  ex  partc 
decree  of  the  lower  Court  is  ipso  facto  re- 
opened. 

I  allow  the  revision  but  in  the  circum- 
stances of  the  case  I  direct  that  each  party 
shall  bear  his  own  costs  of  this  revision. 

o.  K.  D.  Revision  allowed. 

(1)  9  Ind.  Cas.  189,  38  C.  394,    13  O.  L  J.  221;    15  C. 
W.  N   399 

(2)  4  Ind   Cas  580,  11  Bom.  L.  R,  1296. 

(3)  19  Ind.  (Jus.  4L>5,  9  N,  L,  R.  33 


LAHORE  HIGH   COURT. 

LETTERS  PATENT  APPEAL  No.  199  OF  1923. 

January   12,  1925. 
Present: — Sir  Shacii  Lai,  KT.,  Chief  Justice 

and  Mr.  Justice  Le  Rossignol. 
MOTI  MAL-RAM  SARUP— APPELLANT 

versus 

DAULAT  RAM  AND  OTHERS — RESPONDENTS 
Provincial  Insolvency    Act  (V  of   1920), 


ference  of  one  creditor  over  others— MtyftQage  securing 
old  and  new  loans. 

A  transfer  cannot  be  avoided  merely  because  its 
effect  is  to  give  one  creditor  preference  over  other 
creditors  unless  the  debtor  intends  to  do  so 

Where  a  debtor  who  is  unable  to  meet  his  liabili- 
ties and  stands  in  need  of  further  accommodation, 
approaches  one  of  his  creditors  for  a  further  loan,  and 
executes  a  mortgage  securing  both  the  fresh  and  the 
previous  loans,  it  cannot  be  said  that  he  intended  -to 
prefer  that  creditor  over  others,  but  merely  that  ha 
wanted  to  benefit  himself. 

Letters  Patent  Appeal  against  the  judg- 
ment of  Mr.  Justice  Moti  Sagar,  in  Civil 
Appeal  No.  1396  of  >1922,  dated  the  28th 
May  1923,  and  printed  as  751ncLCas.  861, 
reversing  that  of  the  District  Judge, 
Karnal,  dated  the  12th  May  1922. 

Mr.  Shamair  Chand>  for  the  Appellant, 

Mr.  Manohar  Lalt  for  the  Respondents. 

JUDGMENT.— On  the  10th  February 
1921,  one  Sondha  mortgaged  the  property 
in  dispute  in  favour  of  hia  creditor  Daulat 
Ram  for  a  sum  of  Rs.  5,000.  On  the  18th 
April  he  presented  an  application  for 
insolvency,  and  this  application  was  granted 
on  the  6th  December.  The  creditors  seek  to 
impeach  the  transfer  on  the  ground  that  it 
was  made  with  a  view  of  giving  Daulat  Ram 
a  preference  over  other  creditors,  and  the 
determination  of  the  question  depends 
upon  the  motive  which  inspired  thje  debtor 
in  making  the  transfer.  < 

Now,  the  deed  of  mortgage  shows  that 
Sondha  was  already  indebted  to  Daulat 
Ram  to  the  extent  of  Rs.  3,200,  and  that 
he  obtained  a  fresh  loan  of  Rs.  1,800  and 
hypothecated  his  property  for  Rs,  5,000. 
There  can  be  no  doubt  that  Sondha  was, 
at  the  time  of  the  transfer,  unable  to  pay 
his  debts  ;  and  that  he  applied  for  insolvency 
within  three  rriOAths  after  the  date  of 
the  transfer.  It  is  further  clear  that  <the 
effect  of  the  transfei\was  to  .give  preference 
to  one  creditor  over  others,  but  s.  54  -of  the 
Provincial  Insolvency  Act  does  not  avoid  a 
transfer  merely  because  itp  ^ifeqt  is: to  give 
one  creditor  preference  over  other* creditors 
but  makes  the  intention  kof  the  debtor  ihe 
dorriinant  factor  in  deciding. the  'fate  of 'the 
transaction. 

It  Appears  to, us  that  the  -debtor  who.was 
unable  to  meetrhis  liabilities,. stood  in  need 
of  further  accommodation  and  it  was  for 
this  reason  that  he  approached  the  creditor 
and  asked  him  to  make  a  loan.  In  entering 
into  this  transaction  he  intended  to  benefit 
himself  and  not  the  creditor;  and  we  can- 
not,  therefore,  accept  the  contention  of 
the  learned  Counsel  for  the  appellant 


I.  0.1926] 


ATTAR  SIKGH  v    K1RPA  SINGH, 


297 


the  tra.i}#fl£bi0n  was  effected  with  a  view  of 
giving  Daulat  Ram  a  preference  over  other 
creditors. 

The  learned  Counsel  for  the  appellant 
argues  that  Daulat  Ram  has  not  succeeded 
in  establishing  the  whole  of  the  debt 
of  Rs.  3,200,  and  that  in  support  of  five 
hundw  of  Rs.  1,8UO  he  has  not  produced  any 
documentary  evidence  beyond  the  hundis 
themselves  to  prove  the  payment  of  con- 
sideration. It  is  to  be  observed  that  the 
learned  District  Judge  recorded  a  finding 
on  this  point  in  favour  of  Daulat  Ram  and 
registered  him  as  a  creditor  for  the  whole 
01  Rs.  5,000  and  interest  thereon.  No 
appeal  was  preferred  against  this  decision 
go  far  as  the  amount  of  the  debt  was  con- 
cerned, and  the  appellant  is  now  precluded 
from  impeaching  it. 

The  appeal  is  accordingly  dismissed. 
Parties  to  bear  their  own  costs  in  this 
Court. 

N,  H,  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  999  OF  1924. 

November  19,  1924. 

Present:  —  Mr.  Justice  Abdul  Raoof  . 

ATTAR  SINGH  AND  OTHERS— 

PLAINTIFFS  —  APPELLANTS 

versus 

KIRPA  SINGH  AND  OTHBRS- 

DEFENDANTS  —  RESPONDENTS. 

Co-sharer  —  Exclusive  possession  —  Erection  of  build- 
ing —  Inunction,  suit  foi  —  Demolition  of  building  — 
Special  injury 

A  eosharer  whose  rights  have  been  invaded  by  the 
exclusive  possession  of  anothei  co-sharer  can  maintain 
a  Suit  without  proving  material  and  substantial  injury. 
[p.  297,  col.  2.] 

Majju  v.  Teja  Singh,  44  Ind.  Gas.  814;  29  P  R. 
1918;  114  P.  W.  R.  1918,  118  P.  L.  R.  1918,  distingu- 
ished. 

A  co-sharer  who  knowing  perfectly  that  ho  has 
no  right  to  take  exclusive  possession  of  any  portion  of 
the  common  land,  commences  and  completes  a  build- 
ing thereon  with  his  eyes  open,  is  not  entitled  to 
any  consideration  at  the  hands  of  the  Court,  and  the 
latter  should  grant  a  mandatory  injunction  against 
Mm  for  demolition  of  the  building  [p  297,  col.  2; 


ji  v.  Ghulam  Muhammad,  57Jnd  Gas  207,  1  L. 
249  and  Manji  v.  Ghulam  Muhammad,  61  Ind.  Gas.  415; 
2  1,.  73;  3  t.  L.  J.  75,  followed. 

Second  Appeal  from  a  decree  of  the  Dis- 
trict Judge,  ffullundur,  dated  the  28th 
January  1924,  reversing  that  of  the  Sub- 
orSinafce  Judge,  Third  Class,  Phillour,  Dis- 
trict Jullundur,  dated  the  1st  November 
1023. 


Lala  Balwant  Rai  for  Lala  Badri  Das, 
R.  B.,  for  the  Appellants. 

Mr.  I).  C.  Ralli,  for  Kan  war  Dalip  Singh, 
for  the  Respondents. 

JUDGMENT,— The  defendant  Kirpa 
Singh  built  a  kotha  on  a  plot  of  land  belong- 
ing jointly  to  the  plaintiffs  and  the  de- 
fendants. The  present  plaintiff-appellants 
brought  a  suit  for  demolition  of  that  kotha 
on  the  ground  that  the  particular  plot  had 
been  left  open  by  the  common  consent  of 
all  the  co- sharers  to  be  used  on  ceremonial 
occasions. 

The  Trial  Court  decreed  the  claim  and 
granted  the  mandatory  injunction  prayed 
for. 

In  appeal  the  lower  Appellate  Court  has 
set  aside  decision  of  the  Trial  Court  and  has 
dismissed  the  suit  mainly  upon  the  ground 
stated  in  its  judgment.  "There  is,  I  think,  no 
doubt  from  the  evidence  that  he  has  been 
in  possession  for  some  timelmt  that  he  only 
recently  erected  this  particular  kotha  to 
which  the  plaintiffs  object.  This  is  practi- 
cally admitted  by  both  parties.  The  lead- 
ing case  applicable  to  the  present  one  seems 
to  me  to  be  that  reported  in  Ma]ju  v.  Teja 
Singh  (1)  and  it  was  there  laid  down  that  a 
suit  of  this  description  could  only  be  main- 
tained when  the  action  of  one  of  the  pro- 
prietors had  actually  caused  such  material 
and  substantial  injury  as  could  not  be  re- 
medied by  partition  of  the  joint  land.  In 
the  present  case  although  this  particular 
plot  has  not  been  partitioned  but  was  left 
open,  I  do  not  see  how  it  can  be  said  that 
material  and  substantial  injury  has  been 
caused  to  the  plaintiffs,  seeing  that  the 
greater  number  of  proprietors  seem  to  ac- 
quiesce in  the  erection  of  the  kotha  " 

The  learned  Judge  appears  to  be  under 
the  impression  that  co-sharers  whose  rights 
may  be  invaded  by  the  exclusive  possession 
of  another  co  sharer  cannot  maintain  a  suit 
without  pioving  material  and  substantial 
injury.  No  doubt  this  at  one  time  was  the 
view  adopted  in  this  Court  but  the  recent 
decisions  on  this  question  have  set  the 
matter  at  rest. 

Now,  the  facts  to  be  taken  into  considera- 
tion in  this  paiticlar  case  are  these:  The 
defendant  was  one  of  the  many  co-sharers 
and  he  perfectly  knew  that  he  had  no  right 
to  take  exclusive  possession  of  any  portion 
of  the  common  land  and  that  with  his  eyes 
open  he  commenced  and  completed  the 

(1)44  Ind.  Cas.  814;  29  P.  R.  1918;  114  P,  W  R 
1918;  118  P.  L.  11,1918. 


298 


FIRM  OP  RAM  PROSAD-RAM  KISSEN  V.  HARD  KUMAR  BASAK.  [92  I.  C.  1923] 

CALCUTTA  HIGH  COURT. 

APPEAL  FROM  OKDBK  No.  94  OP  1925. 

June  ib,  1925. 
Present:  —  Justice  Sir  Ewart  Greaves,  KT., 

and  Mr.  Justice  B  B.  Ghose. 

Tuts  FIRM  OF  RAM  PROSAD-RAM 

KISSEN  AGAK  WALLA,  RAM  PRO8AI) 

PODUAR—  DuckEE-HoLDEKS—  APPELLANTS 

versus 
HARO  KUMAR  BASAK  ANDOTHEKS— 

JUDGMENT-  DEBTORS  —  RESPONDENTS. 
Civil  ^  Procedure    Code    (Act   V  of  W08),   s     J15-, 
Execution   of  decree,  —  Stay    proceedings,   Jailure   of  — 
Decree-holder    ordered  to  take  <*ut  execution   at  once  — 
Tnihana,  deposit  of-  Reasonable   time  for  filing  pro-' 
cesses   -k\ie(ittwn   'cane,    dismissal    of,    for    default  — 
IHeyal  erenuse.  of  jurisdiction-  -Revision. 

Stay  of  execution  of  a   decree  was  directed  by  the 
Court  on   the  judgment-debtor  furnishing1  SLCiinty  by  ' 
a  specified  date.  The  judgment-debtor  failed  toiumish 
ST'iuit-.v    on  that    date,   and    the  CYmrt    dueeted    the  - 
decree-holder  to  take  steps  for  execution  at  once    The 
der-ree-h  older   deposited    talbana    for  snvice  of    sale 
pioclamaliori  on   the  same   day   but  did    not  file   the 
professes,  and  the  Court  dism'issod  the  execution  case 
J'or  default  there  and  then.     On  ie  vision 

Held,  that  the  Court  exercised  its  jurisdiction 
illegally  m  not  allowing  the  deeiee-holdei  reasonable 
tune  for  iilmg  processes,  as  he  could  not  have  been 
expected  to  lx*  icady  with  the  processes  on  the  ex- 
p^ctation  that  the  judgment-debtor  would  fail  to 
turnish  security,  and  that,  therefore,  the  dismissal  of 
the  execution  case  for  default  must  be  set  aside 
lp.  299,  col  1  J 

Appeal  against  an  order  of  the  Subordi- 
nate  Judge,   Second    Cour.%    Mvmensingh 
datel  the  20th  of  February  19J5"  ' 

I)r  Divar!c<i  Nath  M  liter  (witli  him  Babu 
a  Natk  Mukherjec),   for  the  Appel- 

Annoda Ckaran  Karkoon,  for    the 
Respondents. 

JUDGMENT. 

B.  B.  Ghose,  J.  —  A  preliminary  objec- 
tion has  been  taken  as  to  the  competency 
of  this  appeal  on  the  ground  that  the  order 
against  which  this  appeal  has  been  filed  is 
an  order  of  dismissal  for  default  which  does 
not  came  within  the  definition  of  decree 
under  s.  2,  sub  s.  (2),  cl.  (d)  of  the  C.  P.  C. 
The  appeal  is  riot  maintainable. 

The  appeal  is,  therefore,  dismissed  with 
costs,  hearing  fee  three  gold  mohurs. 

There  is  however  an  application  by  the 
decree-holder,  and  we  are  asked  to  interfere 
in  revision  with  the  order  of  the  Subordi- 
nate  Judge  dismissing  the  execution  case 
for  default.  The  matter  stands  thus  :  Stay 
of  execution  was  directed  by  this  Court  oa 
f  uniibhing  security  within  a  specified  time 
That  date  expired  on  the  20th  February 
19:'5.  The  judgment-  debtor  failed 


building,  Now  when  he  is  confronted  with 
a  suit  by  the  plaintiffs  he  turns  round 
and  says,  "you  cannot  dispossess  me  with- 
out showing  special  damage". 

This  wasthe  very  n:t:  i:iM»nt  put  forward 
in  the  case  of  Manji  v.  Ghulam  Muhammad, 
(2).  I  examined  almost  all  the  authorities 
bearing  upon  this  question  and  came  to 
the  conclusion  that  a  plaintiff  under 
these  circumstances  was  entitled  to  sue  with- 
out proving  special  damage.  This  view, 
was  upheld  by  a  Bench  of  this  Court  in 
Letters  Patent  appeal  which  is  reported  as 
Manji  v  Ghulam  Muhammad  (3).  The 
learned.  Judge  of  the  Court  below  has  altoge- 
ther ignored  these  two  decisions  and  has 
based  his  decision  upon  an  older  ruling 
which  must  be  considered  to  be  no  more 
law,  Mr.  Ralli,  however,  has  contended 
that  after  all  it  was  only  a  cliscretionaiy 
relief  which  the  Court  might  have  declined 
to  grant  and  that  it  is  not  open  to  this  Court 
to  interfere  with  the  discretion  exercised 
by  the  lower  Appellate  Court.  Now  as  a 
matter  of  fact  the  Court  of  first  instance 
had  given  this  relief  in  the  exercise  of  its 
discretion,  Therefore,  the  lower  Appellate 
Court  ought  not  to  have  interfered  with  the 
decision  of  the  first  Court.  But  leaving 
this  question  aside,  is  the  defendant  really 
entitled  to  any  consideration  in  the  matter  ? 
He  knew  perfectly  well  that  this  piece  of 
land  could  never  be  partitioned  and  the 
injury,  if  any,  caused  to  the  plaintiff  could 
never  be  remedied,  and  he  also  knew  the 
limited  right  of  joint  ownership  that  he 
possessed  and  yet  he  persisted  in  erecting 
this  building  He  is  not  entitled  to  ask  this 
Court  either  not  to  grant  the  injunction,  or 
to  refuse  the  prayer  altogether  or  compen- 
site  the  plaintiffs  by  awarding  damages 
only. 

In  my  opinion  the  lower  Appellate  Court 
was  not  justified  in  interfering  with  the 
decision  of  the  Trial  Court.  I  accordingly 
accept  this  appeal,  set  aside  the  decree  of 
the  lower  Appellate  Court  and  restore  that 
of  the  first  Court  with  costs  throughout. 

N.  H.  Appeal  accepted. 

(2)  57  Ind  Gas.  207,   1  L.  249 

•3)  01  Ind,  Cas.  415;  2  I,.  73,  3  L   L  J.  75. 


lants. 


L  0. 


MOHAN  SINGH  0.  NATiiU  MAL. 


299 


the  required  security  on  that  date  and  the 
Subordinate  Judge  directed  the  decree- 
holder  to  take  steps  for  execution  at 
once.  The  next  order  dated  the  20th  Feb- 
ruary, proceeds  thus  :  "The  decree- holder 
has  deposited  talhana  for  service  of  sale 
proclamation.  The  processes  have  not  been 
filed.  I  reject  his  prayer  for  the  issue  of 
sale  proclamation11.  Then  the  next  order 
of  that  very  date  is  "the  execution  case  is 
dismissed  for  default11. 

It  seems  to  us  that  the  Subordinate  Judge 
had  exercised  his  jurisdiction  illegally 
in  not  allowing  the  decree-holder  reason- 
able time  for  filing  the  processes  after  he 
had  put  in  the  talbana  under  the  direc- 
tion of  the  Court.  The  20th  February  was 
fixed  as  the  last  date  on  which  the  judg- 
ment-debtor might  furnish  security  for 
stay  of  execution  and  the  decree- holder 
could  not  have  been  expected  to  be  ready 
with  the  processes  in  the  expectation  that 
the  judgment-debtor  would  fail  to  furnish 
the  required  security.  In  such  circum- 
stances, the  Subordinate  Judge  ought,  in 
the  proper  exercise  of  his  jurisdiction,  to 
have  given  the  decree-holder  reasonable 
time  for  furnishing  the  processes. 

The  order  of  the  Subordinate  Judge  dated 
the  20th  February  1925  dismissing  the  case 
for  default  is,  therefore,  set  aside  and  the 
case  is  remanded  to  him  for  allowing  the 
decree-holder  to  take  further  steps  for  the 
execution  of  his  decree.  The  petitioner  will 
be  entitled  to  his  costs  of  this  application, 
hearing-fee  three  gold  mohiirs. 

Greaves,  J.— I  agree. 

Order  set  aside, 

N.  H  Case  remanded. 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  SECOND   APPEAL 

No.  1190  OF  1924. 

January  12,  1925. 

Present:— -Mr.  Justice  Harrison. 

MOHAN  SINGH  AND  ANOTHER— JUDOM a \T- 

DEBTOUS — APPELLANTS 

versus 
NATHU  MAL— DRCRBB  HOLDER-- 

RESPONDENT 

Limitation  Act  (IX  of  WOS),  s.  U— Application 
not  lying  in  any  Court — 7£.ev«?9ion  «./  time 

An.  application  which  does  not  lie  i'i  ariv  Oouit 
cannot  be  taken  into  account  for  the  sake  of  extend- 
ing time  uuder  s.  14,  Limitation  Act.  [p.  299,  cjl.  2J 


Moti  Singh  v.Maghart  11  Ind,  Cas,  880;  22  \\  K 
1912;  163  P.  W  R.  11)11;  244  P.  L.  R.  Ml,  fol- 
lowed. 

Miscellaneous  second  appeal  from  f.n 
order  of  the  Dihtrict  Judge,  Amritsar,  dated 
the  24th  January  1^24,  reversing  that  of  the 
Subordinate  Judge,  First  Class,  Amritsar, 
dated  the  26th  July  1922. 

Mr.  Jai  Gopal  Sethi,  for  the  Appellants. 

Dr.  Nand  Lnl,  for  the   Respondent. 

JUDGMENT. -On  the  27th  of  June 
1916  a  pieliminary  decree  under  O  XXXI V, 
r  4  was  passed  in  favour  of  a  mortgagee. 
On  the  4th  January  1917  an  application 
for  execution  was  presented  on  which  a 
notice  issued.  Proceedings  were  then  stag- 
ed hy  another  Court.  On  12th  April  1922 
a  further  application  for  execution  was 
presented  on  which  the  Court  quite  rightly 
held  that  it  could  not  execute  the  prelimi- 
nary decree.  On  the  1st  May  1922  an  appli- 
cation was  put  in  for  the  first  time  asking 
for  a  final  decree  to  be  passed.  This  was 
dismissed  by  the  Trial  Court  as  barred  by 
limitation  under  Art  181. 

On  appeal  the  learned  District  Judge 
held  that  time  ought  to  have  been  extend- 
ed under  s  14  of  the  Limitation  Act.  He 
accordingly  extended  the  time  and  directed 
that  the  deciee  holder  should  be  given  a 
final  decree  under  0.  XXXIV,  r.  ft. 

At    the  hearing  of  the  second  appeal  a 
preliminary   objection  was  taken  that  it  was 
undervalued  at  Ks  4.     It  is  contended  by  the 
respondent  that  the  words  '"direct  that  the 
decree-holder  be  given  a  final  decree"  mean 
that  the  District  Judge  himself  passed  a 
final   decree  and  that,  therefore,  the  appeal 
should  bear   full    stamp     No  final    deciee1 
has   in   fact   been   prepared    by   the      Dis- 
trict Judge  but  merely  a  memorandum  of 
costs   such  as  is  prepared  when   an  order  is 
passed  which  dues  not  require  a  decree     I 
read  the  words  as  meaning   that  in   accor- 
dance with  the  usual  procedure  the  final 
decree  is  to  be  prepared  by  the  Trial  Court 
which   gave   the  preliminary  decree  and   I 
hold  that  this  appeal  is  correctly  stamped. 
On  the  merits,  Counsel  contends  that  there 
was  no   excuse  for  the  mistake   made  by 
the  decree-holder  and  that,  as    laid  down 
in  Moti   Singh  v  Maghar  (1)  an  application 
which  does  not  lie  in  any  Court  cannot  be 
taken  into  account  for  the  sake  of  extend- 
ing time  under  s.    14  of  the  Limitation  Act. 
As  agamst  this  the  respondent    contends 

(1)  11  Ind.  Gas.  880;  22  P.  R.  1912,  1C3  F.  \V.  R. 
1911;  244  P  L,  R  I01L 


300 


VBERAPPA  CHETTUR  v.  SEJNDAKESA  SASTRIQAL. 


1.  0. 


that  the  decree  is  in  the  form  of  a  final 
decree,  The  words  used  by  the  District 
Judge  are :  "The  decree,  though  not  strict- 
ly in  accordance  with  the  prescribed  form, 
seems,  in  my  opinion,  to  be  intended  to  be 
preliminary."  All  that  Counsel  has  bean 
able  to  show  is  that  in  the  concluding 
words  of  this  decree  instead  of  saying, 
**the  plaintiff  shall  be  at  liberty  to  apply 
for  a  personal  decree",  the  words  used  are: 
'he  shall  be  entitled  to  realize  it  by  sale 
of  other  property."  At  first  Counsel  con- 
tended that  certain  other  passages  in  the 
cjecree  are  not  in  accordance  with  the 
Code  but  this  he  withdrew  after  examining 
the  prescribed  form. 

It  appears  to  me  not  only  that  the  decree 
was  intended  to  be  preliminary,  but  that 
it  is  preliminary  both  in  form  and  sub- 
stance and  the  trifling  difference  in  the 
words  in  the  concluding  portion  is  wholly 
immaterial. 

As  against  Moti  Singh  v.  Maghar  (I) 
Counsel  cannot  quote  any  authority  of  this 
Court  and  I  have  no  hesitation  in  following 
it.  The  application  is  clearly  barref'd  by 
time  and  it  appears  to  me  that  the  delay  is 
wholly  inexcusable. 

Counsel  for  the  respondent  contends  that 
the  fact  that  the  first  Executing  Court  did 
not  realize  that  this  was  a  preliminary 
decree  and  issued  notice  debars  aljl  other 
Courts  including  this  Court  from  (treating 
it  as  such  a  wholly  impossible  position. 

I  accept  the  appeal  and  confirm  the  order 
of  the  Trial  Court.    Costs  of  the  judgment 
debtor  will    be    paid    throughout  by    the 
decree-holder. 
N.  H,  Appeal  accepted. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  547  OP  1924. 

January  26,  1925. 
Present: —Mr.  Justice  Devadoss  and 

Mr.  Justice  Wallace. 

VEERAPPA  CHETTIAR  AND  OTHERS 

—PETITIONERS 

versus 
P.  Q.  8UNDARE8A  SASTRIGAL— 

RESPONDENT. 

Civil  Procedure*  Code  (Act  V  of  190$),  0.  Ill,  r,  ^ 
$<?ope  of—Madras  Civil  Rules  of  Practice,  r.  277, 
object  of — Pleader  application  o/,  to  appear  against 
former  client —"Matter  connected  therewith"  meaning 
of —Wrong  order  by  misinterpretation  of  rule— Re- 
vision. 


Order  III,  r.  4,  0.  P.  C.,  does  not  give  an  absolute 
right  to  a  Pleader  to  appear  in  a  Court  till  the  termi- 
nation of  the  proceedings,  but  only  provides  in  what 
manner  a  Pleader  competent  to  appear,  plead  and  act 
should  be  appointed  and  till  what  time  the  appoint- 
ment will  be  in  force  Jf  he  is  not  competent  to 
appear,  plead  and  act  in  any  Court  under  the  rules 
governing  the  procedure  in  that  Court,  he  cannot 
claim  right  of  audience  by  virtue  of  O.  1H,  r.  4  (p 
301,ooL2j 

A  Pleader  can  appear  for  a  party  whose  interest  is 
opposed  to  that  of  the  party  for  whom  he  had  acted, 
drawn  up  pleadings  or  appeared  in  the  same  pro- 
ceedings, only  with  the  latter's  consent  or  w&ea 
specially  authorised  by  the  Court,  [p.  302,  col.  2  ] 

Rule  277  of  the  Madras  Civil  Rules  of  Practice  is 
intended  to  regulate  the  proceedings  jn  Courts  and  a 
practitioner  of  the  Court  has  to  conform  to  the  rules 
governing  its  proccdme  [p  301,  col  2  j 

The  object  of  r  277  is  not  to  save  the  Pleader  from 
a  suit  for  damages  by  the  party  for  whom  Jhe  acted 
and  against  whom  he  subsequently  acted,  but  to  pre- 
vent an  unreasonable  conduct  on  the  part  of  both  the 
Pleader  and  the  client  [p  302,  col  1.] 

A  Pleader  who  has  acted,  for  a  party  to  a  suit  and 
has  discharged  himself  cannot  afterwards  act  for  the 
opposite  {'arty  and  the  Court  has  power  to  restrain 
him  from  doing  so  on  an  application  made  for  that 
purpose  [ibid  j 

The  words  "in  any  matter  ccmnected  therewith11  in 
r.  277  mean  connected  with  the  suit  or  appeal  or  other 
proceeding  in  which  the  Pleader  gave  the  advice  and 
does  not  refer  to  a  subsequent  suit,  or  appeal  or  pro- 
ceeding after  the  termination  of  the  former  suit, 
appeal  or  proceeding,  where  the  causes  of  action  in 
the  two  are  different  [p.  303,  col.  1  ] 

The  subsequent  suit  or  proceeding  or  matter  can  be 
said  to  bo  connected  with  the  previous  suit  or  proceed- 
ing or  matter  only  if  the  former  flows  from,  or  in 
consequence  of,  the  previous  suit  or  piocoeding. 
Otherwise  there  is  no  connection  at  all  ubid  j 

It  is  not  the  identity  of  the  subject-matter  that 
estfibhbheb  the  connection  between  the  two  suits  or  the 
identity  of  the  parties  but  the  identity  of  the  right  or 
title  that  is  abserted  or  denied  and  the  relief  claimed, 
[p.  .303,  col  2,1 

Where  a  Court  by  a  wrong  interpretation  of  r.  277 
refuses  to  allow  a  practitioner  to  appear  against  a 
client  for  whom  he  is  alleged  to  have  acted  on  a 
former  occasion,  it  exercises  a  jurisdiction  not  vested 
in  it  by  law  and  the  order  is  icvisable  by  the  High 
Court  [p  303,  col  1  ] 

Srimvasa  Row  v   Pichai  Pillai,  21  Tnd     Cas  620;  38 
M  650;   25  M    L.  J.   567  and    Ramaknshna  Pillai  v. 
Balakrishna  Aiyar,  62  Ind  Cas.  712,    41  M  L.  J.   CO; 
13  L.  W  541;  (1921)  M   W  N.  646,  relied  upon. 
[Duty  of  Pleaders  stated.] 

Petition,  under  s.  115  of  Act  V  of  1908  and 
under  s.  107  of  the  Government  of  India 
Act,  praying  the  High  Court  to  revise  an 
order  of  the  Court  of  the  District  Munsif, 
Srirangam,  dated  the  24th  June  1924,  in 
C.  M.  P.  No  315  of  1924  in  Original  Suit 
No.  103  of  1924  on  its  file. 

Messrs.  K.  V.  Krishnaswami  Iyer  and  R. 
Kesava  lyengar,  for  the  Petitioners. 

Mesrtrp.  T.  M.  Krishnaswami  Iyer  and- 
Jf.  G.  Srinivamn.  for  the  Respondent. 

JUDGMENT,— This  is 


tft»l.  0. 1926J 


VBBRAPPA  OHETHAR  V,  SUNDARESA  SA8TRIGAL. 


301 


to  revise  the  order  of  the  District  Munsif  of 
Srirangam,  who  directed  two  Pleaders  not  to 
appear  for  the  defendants  in  two  suits  pend- 
ing in  his  Court  as  the  plaintiff  objected  to 
their  appearance  inasmuch  as  they  had  ap- 
peared for  him  in  previous  suits  against 
the  defendant  in  which  the  subject-matter 
was  the  same  as  in  the  suits  now  pending. 
The  first  contention  of  Mr.  K.  V.  Krishn- 
aswamy  Iyer  is  that  the  District  Munsif  had 
no  jurisdiction  to  pass  such  an  order.  It 
is  argued  that  the  Pleaders  are  not  parties 
to  the  suits  and  that  they  have  no  right 
of  appeal  against  such  an  order  and,  there- 
fore, the  order  is  without  jurisdiction  and  is 
not  covered  by  r.  277  of  the  Civil  Rules  of 
Practice. 

The  District  Munsif  purported  to  act 
under  r.  277  which  is  in  these  terms:  "Ex- 
cept when  specially  authorised  by  the 
Court,  or  by  consent  of  the  party,  a  Pleader 
who  has  advised  in  connection  with  the 
institution  of  a  suit,  appeal  or  other  pro- 
ceeding, or  has  drawn  pleadings  in  connec- 
tion with  any  such  matter,  or  has,  during 
the  progress  of  any  such  suit,  appeal  or 
other  proceedings,  acted  for  a  party,  shall 
not,  unless  he  first  gives  the  party  for  whom 
he  has  advised,  drawn  pleadings  or  acted, 
an  opportunity  of  engaging  his  services, 
appear  in  such  suit,  appeal  or  other  pro- 
ceeding, or  in  any  appeal,  or  application  for 
revision  arising  therefrom  or  in  any  matter 
connected  therewith,  for  any  person,  whose 
interest  is  opposed  to  that  of  his  former 
client,  provided  that  the  consent  of  the  party 
shall  be  presumed  if  he  engages  another 
Pleader  to  appear  for  him  in  such  suit, 
appeal  or  other  proceeding  without  offering 
an  engagement  to  the  Pleader  whose  ser- 
vices he  originally  engaged11.  It  is  conced- 
ed by  Mr.  K.  V.  Krishnaswamy  Iyer  that 
the  Court  has  jurisdiction  either  to  grant 
or  to  refuse  such  authority  when  a  Pleader 
applies  for  the  same  under  the  rule.  But  it 
is  urged  that  when  he  does  not  make  an 
application  for  special  authority,  the  Court 
has  no  jurisdiction  to  pass  an  order  against 
him  and  that  the  only  course  open  against 
a  Pleader  who  violates  the  rule  is  by  a  pro- 
ceeding under  the  Legal  Practitioners  Act 
fdr  unprofessional  conduct. 

Considerable  stress  was  laid  on  0.  Ill  r.  4 
of  ;the  0.  P.  C.,  in  support  of  the  argument 
that  a  Pleader's  engagement  lasts  till  the 
termination  of  the  proceedings,  and,  there- 
fore, thte  Ooort  cannot  prevent  the  Pleader 
from  appearing  for  a  party  after  he  has 


filed  his  vakalat  in  Court.  Order  III,  r. -4; 
does  not  give  an  absolute  right  to  a  Pleader 
to  appear  in  a  Court  till  the  termination  of. 
the  proceedings  but  only  provides  in  what 
manner  should  a  Pleader  be  appointed  and- 
till  what  time  the  appointment  will  be  in 
force.  It  assumes  that  a  Pleader  is  com- 
petent to  appear,  plead  and  act  in  the  Court 
in  which  he  wishes  to  plead  and  act.  If  he 
is  not  competent  to  appear,  plead  and  act 
in  any  Court  under  the  rules  governing  the 
procedure  in  that  Court,  he  cannot  claim 
right  of  audience  by  virtue  of  0.  IK  r.  4. 
Is  it  open  to  a  second  grade  Pleader  to> 
claim  a  right  of  audience  in  the  District 
Court  by  filing  ^vakalat  or  for  a  first  grade 
Pleader  to  claim  a  right  of  audience  in  the 
High  Court  by  filing  a  vakalat  in  Court  for 
a  party  ?  The  District  Court  and  the  High 
Court  will  refuse  to  receive  the  vakalat  of 
a  Pleader  not  entitled  to  appear  before  them 
and  will  refuse  to  allow  him  to  act  in  that 
Court  by  reason  of  the  rules  governing 
their  procedure.  In  re  the  Pleaders  of  the 
High  Court  (1),  it  was  held  that  ss  2  and  36 
of  the  C.  P.  C  ,  Act  XIV  of  1882,  did  not  give 
the  Pleaders  of  the  Bombay  High  Court  the 
right  to  appear  in  the  Presidency  Small 
Cause  Court  of  Bombay  wherein  only  Bar- 
risters and  Attorneys  had  aright  to  practise. 
Rule  277  is  intended  to  regulate  the  pro- 
ceedings in  Courts  and  a  practitioner  of  the 
Court  has  to  conform  to  the  rules  govern- 
ing its  procedure.  If  he  does  not  conform 
to  the  rules  governing  the  procedure  he 
cannot  claim  a  right  of  audience  in  that 
Court.  A  Pleader  can  appear  for  a  party 
whose  interest  is  opposed  to  that  of  the 
party  for  whom  he  had  acted,  drawn  up 
pleadings  or  appeared  in  the  same  proceed- 
ings either  with  the  latter's  consent  or 
when  specially  authorized  by  the  Court* 
The  rule  contains  a  prohibition  against  the 
Pleader's  appearance  unless  the  conditions 
therein  laid  down  are  satisfied.  Supposing 
a  Pleader  is  disbarred  or  struck  off  the 
rolls,  can  he  insist  upon  his  right  to  appear 
in  a  Court  in  which  he  had  filed  his  vakalat 
before  he  was  disbarred  or  struck  off  the 
rolls  by  reason  of  0.  Ill,  r.  4.  Rule  4  is 
only  an  enabling  provision  by  which  a 
Pleader  when  he  accepts  an  engagement 
and  files  his  vakalat  in  Court  is  entitled  to 
conduct  the  proceedings  till  he  or  his  client 
dies  or  the  termination  of  the  proceedings* 
But  this  rule  does  not  override  the  >  rules 

(1)  8  13.  105;  8  lad,  Jur,-306  &  378;  4  lad,  Dec.  (x,  s,) 
413,  ' 


302 

governing    the    qualifications      of    various 
classes    of  Pleaders    or  the  rules  governing 
the  procedure  of  the  Courts.    If  the  conten- 
tion of  Mr.   K    V.    Krishnaswamy    Iyer  is 
pushed  to  ita  logical  conclusion,   it  would 
mean  that  a  Pleader  could  appear  for   both 
the  plaintiff  and  the  defendant    if  the  con- 
tending parties  are   foolish   enough  to   en- 
gage the  same  Pleader,  and  the  Court  would 
be  powerless  to   prevent  the  Pleader  from 
appealing    for  both    the   plaintiff  and   the 
contesting  defendant  in   the  same  suit.    It 
is  to  prevent  such,  conduct  on  the  part  of 
the  Pleaders  and  unreasonable  conduct  on 
the  part  of  the  clients  thatr.  277  of  the  Civil 
Rules    of  Practice  has  been    enacted.    In 
RamlalL    Agarwallah  v.   Moonia   Bibee  (2), 
Wilson,  JM  held,  following  the  principle  "of 
la\v  laid  down  in  the  case    of  Cholmondeley 
v.   Clinton  (3),  that  an  Attorney   who  has 
aofced  for  a  party  to  a  suit  and  has  discharg- 
ed himself  cannot  afterwards  act   for  the 
opposite  party  and  that  the  Court  had  power 
to  restrain  him  from  doing  so  on  an  applica- 
tion made  for  that   purpose       The   High 
Court  of  Madras  in  their  proceedings  dated 
8th  April   186(J  ruled   that   when   a  suit  is 
remitted  by  order  of  an  Appellate  Court  for 
re-hearing  or  finding  on  an  issue,  the   pro- 
ceedings 011  such,  order  must    be  regarded 
as  a  further  proceedings  in   the  trial  of  the 
suit  and,  consequently,  under  s.  22  of  Regu- 
lation XIV  of  1816  a  Vdkil  cannot  change 
sides  and  hold  a  vakalatnama  for  the  party 
opponent  to  the  one  for  whom  he  appeared 
at  the  first  hearing.     8ee   Proceedings,    Stli 
April  I860  (4).    The   Court  has,   therefore, 
power  to  refuse  to  hear  practitioners   who 
violate  the  rules  regulating    the  procedure 
in  Courts. 

It  is  next  contended  that  the  special 
authority  required  under  r.  277  is  only  for 
the  protection  of  the  Pleader  against  an  ac- 
tion for  damages  by  the  party  for  whom 
he  had  acted  and  not  for  enabling  the  Plead- 
er to  appear  in  Court  for  his  opponent. 
The  rule  is  no  doubt  intended  both  for  the 
protection  of  the  Pleader  as  well  as  the  client 
but  not  in  the  sense  in  which  the  appellant 
wants  it  to  be  understood.  The  object  of 
the  rule  is  not  to  save  the  Pleader  from  a 
suit  for  damages  by  the  party  for  whom  he 
acted  and  against  whom  he  subsequently 
acted  but  to  prevent  an  unreasonable  con- 
duct on  the  part  of  a  party  who  engaged 

(2)  G  C.  79;  5  Ind.  Jur.  583;  3  lud.  Dec.  (w.  s.)  52. 

(3)  (1815)  19  Ves.  261;  13  K.  R.  183;  34  E.  R,  515. 
(4;  i  H,  H,  C,  R.  App,  43, 


SASfrRKUt,  [02  I.  0,  1926] 

the  Pleader's  services  arid  afterwards  gave 
him  up  without  proper  grounds.  If  a  party 
who  gets  advice  trorn  a  Pleader  does  not 
choose  to  engage  Ins  services  for  the  con- 
duct of  the  suit  but  engages  another  the 
Pleader  is  not  altogether  debarred  from 
accepting  an  engagement  from  the  opposite 
party  but  he  could  do  so  by  giving  the 
former  an  opportunity  to  engage  his  services 
and  if  he  refuses  to  engage  his  services  and 
unreasonably  withholds  his  consent  he  may 
appear  for  the  latter  with  the  special 
authority  of  the  Court.  It  is  to  prevent 
unfair  dealing  by  the  parties  that  the 
Court  is  invested  with  the  power  to 
grant  special  authority  to  a  Pleader  to 
appear  against  the  paity  whom  he  gave 
advice  or  acted  or  appeared  for  at  an  early 
stage  of  the  proceedings.  But  for  such 
power  any  rich  patty  or  an  unscrupulous 
client  might  prevent  all  leading  Pleaders 
from  appearing  for  his  opponent  by  seeking 
their  advice  by  paying  a  nominal  fee 
and  then  engaging  the  services  of  one  or 
more  of  them  to  conduct  the  proceedings 
in  Court. 

Mr.   T.  M.   Krishnaswamy  Iyer    for  the 
respondent  urges  that  there  is  a    finding  of 
fact  that  the    suits  now  pending  are  con- 
nected with   previous   suits  and  the   High 
Court  should  not  interfere   with   the  order 
of  the  lower    Court  under    s.   115   of  the 
C.   P.   C.    The    facts    are:— The    plaintiff 
tiled    O.   S.   No.   525  of    1912    afterwards 
numbered  as  400  of  1914  against  the  defen- 
dant in  which  he  asked  for  possession  of  a 
plot  to  the  west  of  his  house  and  prayed 
for  a  permanent  injunction    hymning  the 
defendant  from  interfering  i1. nil   hi,-*   light 
to  the    common  lane  to  the  north  of  the 
plot.    In  O.  8.  No.  860  of  1920  the  plaintiff 
prayed  for  a  mandatory  injunction  for  the 
removal  of    a    cross-wall  put    up  by  the 
defendant   in  a  portion   of  the  lane.     The 
plaintiff  has  now  brought  two  suits  against 
the  defendant,  yu.,  0.  8.  No.  103  of  ly24  for 
a  mandatory  injunction  for  removal  of  the 
balcony   wrongly  put  up  by  the  defendant 
over  a  portion  of  the  common  lane  and  for 
the  removal  of  a  portion  of  the  defendant's 
drain  encroaching  on  the  common  lane  and 
O.  8.  No.  101  of  1924   for  a  mandatory   in- 
j  unction    for  removal  of  the  arch  of    the 
verandah  erected  by  the  defendant  on  the 
ground  that  it  had  interfered  with  the  free 
access  of  light  and  air  to  his  house  and  for 
incidental    reliefs.     The    District    Munsif 
finds  that  the  four  suits   are  closely 


I.  CX  1926] 


VEflRAPPA 


V. 


8AST  &IQAL. 


203 


nected  with  one  another.  It  is  difficult 
to  see  the  connection.  If  the  same  ques- 
tions are  in  dispute  now  as  were  in  dispute 
in  the  previous  suits,  the  decision  of  the 
previous  suits  would  be  res  -judicata  in  the 
present  ones.  The  connection  contemplat- 
ed by  r  277  is  not  the  connection  of  the 
parties  or  of  the  subject-matter.  The  word- 
ing in  r  277  is  "in  such  suit,  appeal  or  other 
proceeding,  or  in  any  appeal,  or  application 
for  revision  arising  therefrom,  or  in  any 
matter  connected  therewith."  The  words 
"in  any  matter  connected  therewith"  mean 
connected  with  the  suit  or  appeal  or  other 
proceeding  in  which  the  Pleader  gave  the 
advice  and  does  not  refer  to  a  subsequent 
suit,  appeal  or  proceeding  after  the  termi- 
nation of  the  former  suit,  appeal  or  pro- 
ceeding. If  a  Wik.il  appears  for  a  party  in 
a  suit  or  proceeding,  he  cannot  appear  for 
the  opposite  party  in  subsequent  proceed- 
ings, in  the  sarns  suit  or  proceeding,  but 
that  do^s  not  prevent  a  Pleader  who  ap- 
pe  ired  for  a  party  from  appearing  in  a  sub- 
sequent suit  for  the  opposite  party  when 
the  causes  of  action  in  the  two  are  different. 
The  subsequent  suit  or  proceeding  or 
matter  can  be  said  to  be  connected  with 
the  previous  suit  or  proceeding  or  matter 
only  if  the  former  flows  from,  or  in  conse- 
quence of,  the  previous  suit  or  ;  :  Y\  ^ 
Otherwise  there  is  no  connection  at  all.  If 
a  plaintiff  sues  the  defendant  for  possession 
of  land  on  his  title  and  succeeds  and  some- 
time after  brings  a  suit  upon  a  fresh  cause 
of  action  against  the  same  defendant,  there 
is  no  connection  between  the  two  suits 
though  the  defendant  may  raise  the  ques- 
tion of  title  of  the  plaintiff,  but  that  would 
not  be  sufficient  to  establish  a  connection 
between  the  two.  The  question  involved 
in  the  two  suits  in  the  District  Munsif  's 
Court  are  the  right  of  the  plaintiff  to  object 
to  the  defendant  putting  up  certain  struc- 
tures and  that  right  was  not  in  dispute 
in  the  former^  suits.  The  causes  of  action 
are  different,  and  the  reliefs  claimed  are  not 
the  same.  The  District  Munsif  s  exercise  of 
jurisdiction  was  owing  to  a  wrong  interpre- 
tation of  the  rule  and  this  Court  has  power 
to  interfere  with  the  order  of  the  District 
Munsif  as  he  exercised  a  jurisdiction  not 
given  to  him  by  r.  277  of  the  Civil  Rules  of 
Practice. 

The  two  cases    Ramakriskna    Filial  v. 
Balakriskna  Aiyar  (5)  and  Srinivasa  Row  v. 

(5)  62  Ind.  Cas.  712,    41  M.  L,  J.  60;  13   L.  W.  511; 
M,  W.  N.  646. 


Pichai  Pillai  (6)  relied  upon  by  Mr.  Krish- 
naswamy  Iyer  as  suppoiting  his  contention 
are  distinguishable  from  the  present.  In 
Ramakrishna  Filial  v.  Balakrishna  Iyer 
(5)  the  petitioner  was  plaintiff  in  0  S.  No.  8 
of  191  J1  and  defendant  in  (X  8.  No.  £6  of 
1920  on  the  file  of  the  Subordinate  Judge's 
Court  of  Mayavaram.  The  respondents 
weie  two  Vakils  of  the  Mayavaram  Sub- 
Court  who  appeared  for  him  in  the  former 
suit  and  for  the  plaintiff  in  the  latter  euit. 
The  petitioner's  application  that  audience 
should  lie  refused  to  the  Vakil  respondents 
who  had  filed  O.  S.  No.  56  of  1920  for  the 
plaintiff  was  rejected  by  the  Subordinate 
Judge  as  he  was  not  satisfied  that  there 
would  be  any  conilict  between  their  duty  in 
representing  the  plaintiff  in  O.  S.  No.  8  of 
1917  and  in  representing  his  opponent  in 
O.  S.  No  51)  of  1920.  Br>tU  the  learned 
Judges  who  heard  the  civil  revision  peti- 
tion against  the  order  of  the  Subordi- 
nate Judge  were  of  opinion  that  the 
suits  were  connected  with  one  another. 
Spencer,  J.,  observed  at  page  6,*  4  In 
both  suits  questions  arise  as  to  the  valid- 
ity and  binding  character  upon  the  pe- 
titioner of  the  indenture  and  whether  he 
is  estopped  by  reason  of  it  from  question- 
ing the  title  of  the  defendant  in  the  former 
suit  and  the  title  of  the  plaintiff  in  the 
second  suit."  The  learned  Judges  allowed 
the  petition  and  directed  the  Subordinate 
Judge  to  refuse  to  allow  the  respondents  to 
conduct  0  S.  No  56  of  1920  for  the  plaint- 
iff. That  case  has  no  application  to  the 
present,  as  in  that  both  the  suits  were  then 
pending  in  the  Mayavaram  Court  and  as 
found  by  the  learned  Judges  they  were 
connected  and  some  of  the  important  ques- 
tions arising  in  the  suits  were  common  to 
both  suits  It  is  not  the  identity  of  the  subject- 
matter  that  establishes  the  connection  be- 
tween the  two  suits  or  the  identity  of  the 
parties  but  the  identity  of  the  right  or  title 
that,  is  asserted  or  denied,  and  the  relief 
claimed. 

In  Srinivasa  Rao  v.  Pichai  Villai  (6) 
Miller,  J,,  approved  of  the  order  of  the  Dis- 
trict Munsif  who  prohibited  a  second  grade 
Pleader  from  appearing  for  the  plaintiffs  in 
0.  8.  No,  32  of  1913  on  his  file.  The  Pleader 
appeared  for  the  defendant  in  proceed- 
ings under  s.  145,  Cr.  P.  C.,  and  obtained 
an  order  in  favour  of  the  defendant  and  ha 


(0)  21  Ind.  Gas  629;  38  M  650,  25  M  L.  J.  507. 
~*P»ge"of  -il  M,  L,  J,— 


304 


VEEEAPPA  OHBTTIAB  V.  SDNDAltBSA'  SASTRIOAL. 


[921,  0. 


filed  0.  S.  No.  32  of  1913  for  the  defeated 
party.  The  District  Munsif  relied  on  r  277 
of  the  Civil  Rules  of  Practice  prohibiting 
the  Pleader  from  appearing  for  the  plaintiff. 
In  proceedings  under  s.  145,  Or.  P.  C.,  the 
Magistrate  decides  only  the  question  of 
possession  and  his  order  is  to  maintain  the 
possession  of  the  party  found  to  be  in 
possession  at  the  time  the  proceedings  are 
adopted.  His  order  is  subject  to  the  result 
of  a  civil  suit  and  is  good  only  till  the 
Civil  Court  decides  which  party  is  entitled 
to  the  property  in  dispute.  The  civil  suit, 
therefore,  in  almost  all  cases  follows  the 
order  of  the  Magistrate  and  the  proceedings 
in  a  the  civil  suit  are  in  a  sense  continua- 
tion of  the  proceedings  before  the  Magistrate. 
Though  the  Magistrate  enquires  only  into 
the  question  of  possession,  yet  documents 
are  relied  upon  by  the  parties  for  the  pur- 
pose of  proving  their  possession  and  the 
Pleader  who  appears  for  a  party  necessarily 
acquaints  himself  with  the  title  to  the  pro- 
perty and  invariably  peruses  the  documents 
produced  by  his  client.  With  the  know- 
ledge of  the  strength  and  weakness  of  his 
client's  title  if  he  appears  in  the  civil  suit 
for  a  party  whose  interests  are  opposed  to 
his  clients  in  the  proceedings  before  the 
Magistrate,  there  is  a  danger  of  his  using 
for  his  client  in  the  civil  suit  the  knowlege 
gainedby  him  from  his  client  in  the  proceed- 
ings in  the  Magistrate's  Court.  There  isaniin- 
timate  connection  between  thepioceedings 
under  s.  145,  Cr.  P.  C.,  in  the  Magistrate's 
Court  and  the  civil  suit  filed  in  conse- 
quence of  the  order  of  the  Magistrate. 

If  a  Pleader  appears  for  a  party  in  the 
proceedings  in  execution,  he  cannot  appear 
in  the  suit  filed  by  reason  of  the  order  in 
claim  proceedings  for  a  party  whose  inter- 
ests are  opposed  to  that  of  the  part}7  for 
whom  he  acted  in  the  claim  proceedings 
without  his  consent  or  without  the  authority 
of  the  Court  in  which  the  suit  is  pending. 
The  suits  now  pending  in  the  District  Mun- 
sif  s  Court  are  not  the  necessary  consequence 
of  the  previous  suits.  There  is  no  connection 
between  the  present  one  and  the  former 
suits.  As  observed  by  Spencer,  J.,  in  Rama- 
krishna  Pillai  v.  Balakrishna  Iyer  (5)  the 
two  suits  will  ordinarily  be  considered  con- 
nected if  they  have  any  issue  in  common  or 
involve  substantially  a  determination  of  ^  the 
same  question  of  fact  or  the  same  mixed 
question  of  law  and  fact. 

A  few  observations  as  to  the  duty  of 
would  not  be  out  of  place  here, 


The  legal  profession  is  a  very  noble  one; 
and  no  Pleader  should  by  his  conduct  con* 
sciously  or  unconsciously  do  anything  to 
lou  er  its  high  standard  of  morality,  probity 
and  honesty.  The  Pleaders  would  -Jo  well 
to  avoid  any  conduct  on  their  part  which 
is  reasonably  capable  of  being  mi^under* 
stood.  If  a  Pleader  advises  or  acts  for  a 
client  he  should  not  appear  against  him 
in  any  subsequent  proceeding  if  he  feels 
that  he  might  in  such  proceeding  even  uncon- 
sciously use  the  information  gained  from 
his  former  client  against  him.  Client^ 
should  have  the  fullset  confidence  in 
their  legal  advisers  and  should  not  be 
deterred  or  hampered  in  disclosing  the 
strength  and  weakness  of  their  cases  by 
the  fear  that  their  instructions  might  at 
some  future  time  be  used  against  them  by 
their  legal  advisers.  It  is  the  duty  of  legal 
practitioners  to  avoid  even  the  suspicion 
that  they  might  possibly  use  the  informa- 
tion which  they  received  in  their  profes- 
sional capacity  against  the  clients  from 
whom  they  received  them.  There  is  no 
rule,  etiquette  or  code  of  ethics  to  govern 
the  conduct  of  clients.  On  the  other  hand 
the  Pleaders  who  are  guided  and  governed 
by  the  etiquette  of  the  profession  are  not 
likely  to  do  anything  which  would  incur 
the  censure  of  the  profession  and,  in  order 
to  prevent  an  unscrupulous  or  contankerous 
client  from  depriving  his  opponent  of  the 
services  of  Pleaders,  r.  277  of  the  Civil  Rules 
of  Practices  gives  a  discretion  to  the  Court  to 
specially  authorize  a  Pleader  to  appear  and 
act  for  a  party  whose  interests  are  opposed 
to  those  of  the  party  for  whom  he  at  one 
time  acted  or  appeared  or  gave  advice. 

We  have  no  hesitation  in  holding  that 
the  plaintiff  has  no  reason  to  complain  of 
the  conduct  of  the  Pleaders.  He  has 
only  to  thank  himself  if  he  lost  the  ser- 
vices of  the  two  prominent  Pleaders* 
He  could  have  retained  them  if  he  had 
cared.  He  engaged  other  Vakils  to  appear 
for  him  and  his  petition  to  the  District 
Munsif  is  evidently  not  to  protect  his 
own  interests  for  they  require  no  protec- 
tion but  to  annoy  the  defendants  and  the 
Pleaders  whom  he  did  not  care  to  retain. 
Perhaps  there  ia  some  motive  at  the  bottom 
of  the  plaintiff's  petition.  We  set  aside  the 
order  of  the  District  Munsif  and  allow  the 
petition  with  costs  throughout. 

v.  N,  v. 

N*  H-  Order  set  aside, 


0. 1926] 

NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL   APPEAL  No.  61  OP  1924. 

April  14,  1925. 
Present: — Mr.  \V    •  •_-     ::\,v  Officiating 

A  J.  C. 
TAPIRAM — PL  UNTIFF— APPELLANT 

versus 

JUGALKISHORE  AND  ANOTHER-— 
DEPENDANTS — RESPONDENTS. 

Document,  material  alteration  in— Suit  to  recover 
money — Acknowledgment  produced  in  evidence  — 
Material  alteration  in  acknowledgment,  effect  of— Suit, 
whether  can  be  decreed. 

The  rule  that  no  decree  can  be  passed  in  a  suit 
brought  on  a  document  which  has  been  materially 
altered  after  execution  without  the  privity  of  the 
party  to  be  affected  by  it,  has  no  application  where 
the  obligation  to  be  enforced  does  not, arise  under  the 
altered  instrument  and  the  instrument  is  produced 
merely  as  a  piece  of  evidence  in  proof  of  the  obliga- 
tion, [p.  305,  col.  2.1 

[Case-law  discussed  ] 

Where  a  cause  of  action  for  recovery  of  money  lent 
to  the  defendant  exists  independently  of  any  docu- 
ment which  may  have  bsen  obtained  from  the  defend- 
ant in  support  of  th.3  advance,  the,  fact  that  the 
dp3um3nt  has  b^n  materially  altered  is  no  ground  for 
dismissing  plaintiffs  claim  for  the  advance,  [p.  307,  col. 

2] 

An  asknowladgment  which  merely  evidences  the 
receipt  of  a  loan  does  not  amount  to  a  contract  and 
doss  not  furnish  a  cause  of  action,  and  a  claim  in. 
proof  of  which  such  an  .  ' .,  •  is  produced 
can  bs  decresd  despite  in«  iaci  imii  ine  acknowledg- 
ment has  been  materially  altered  without  the  consent 
of  the  debtor  affected  by  it.  [ibid.] 

Raghubirsingh  v.  Udechand,  11  C.  P.  L.  R.  Go,  and 
Durg'a  Shankcr  v.  Ram  Prasad,  14  0.  P.  L.  R.  151  at  p. 
152t  relied  on. 

A  material  alteration  in  a  written  acknowledgment^ 
debt  does  not  render  it.  inoperative  as  the  •  \i  • '  :-• 
ment  is  merely  an  evidence  of  pre-existing  ../.  ti . 
305,  col.  2.] 

Appeal  against  a  judgment  of  the  District 
Judge,  Nimar,  dated  the  17th  September 
1923,  in  Civil  Appeal  No.  126  of  1923. 

Mr.  W.  R.  Puranik,  for  the  Appellant. 

Mr.  J.  Sen,  for  the  Respondents. 

JUDGMENT*  —  Defendants-respond- 
ents borrowed  from  Hemlal  cousin  of  plaint- 
iff-appellant Rs.  200  on  llth  February 
1920,  Rs.  100  on  25th  April  1920,  Rs.  25  on 
21st  May  1921)  and  again  Rs.  25  on  23rd 
September  1920,  and  for  each  of  the  sums 
so  borrowed  they  passed  an  acknowledg- 
ment or  ruju  in  favour  of  Hemlal  in  his 
account  book.  As  they  failed  to  re-pay  the 
money  in  spite  of  demand,  plaintiff  brought 
a  suit  against  them  for  recovery  of  all  the 
four  items  plus  interest  thereon  at  the  rate 
of  Re.  1-8  per  cent,  per  mensem. 

Defendants  admitted  having  borrowed 
all  the  four  items  referred  to  by  the  plaint- 
jiff.  They  also  admitted  having  passed  all 

20 


f  APltUM  V.  JUOALK1SH&R& 

four  acknowledgments  filed  by  the  plaintiff 
in  respect  of  the  aforesaid  four  items.  They, 
however,  denied  that  they  had  agreed  to  pay 
any  interest.  They  pleaded  that  in  the  first 
acknowledgment  dated  ilth  February  1920 
the  letters  "Da-l-i"  had  been  fraudulently 
interpolated  without  their  knowledge  or 
consent  in  order  to  make  it  appear  that  that 
they  had  agreed  to  pay  interest  at  Re.  1-8 
percent  per  mensem,  although  there  was 
no  agreement  on  their  part  to  pay  any  in- 
terest, and  contended  that  as  a  material 
alteration  has  been  made  in  one  of  the  ac- 
knowledgments plaintiff  was  not  entitled 
to  recover  anything  from  them. 

Both  the  Courts  below  held  that  defend- 
ants had  nob  agreed  to  pay  any  interest. 
They  further  held  that  a  material  alteration 
had  been  made  in  the  first  acknowledgment 
without  the  knowledge  or  consent  of  the 
defendants  by  inserting  therein  the  letters 
"Da,  LV'.  They  consequently  dismissed 
plaintiffs  claim  for  the  money  covered  by 
that  acknowledgment  and  decreed  his  claim 
for  the  money  due  on  the  remaining  three 
acknowledgments  with  interest  thereon  at 
Re.  1  per  cent,  per  mensem  by  way  oi 
damages.  Plaintiff  has  now  preferred  this 
appeal  and  he  contends  that  his  claim  for 
the  money  covered  by  the  first  acknow- 
ledgment should  not  have  been  dismissed 
by  the  Courts  below.  In  my  opinion  his 
contention  is  sound  and  must  prevail. 

It  has,  no  doubt,  bsen  held  that  there  is 
no  right  of  action  on  a  document  which  has 
been  materially  altered  after  execution  and 
without  the  privity  of  the  party  to  be 
affected  by  it,  and  that  no  decree  should  be 
passed  in  a  suit  brought  on  such  a  docu- 
ment despite  the  fact  that  consideration 
for  tha  document  has  been  admitted  by 
the  defendant  :  Pandurang  v.  Kishan  (1), 
Kanhayalal  Tarachand  v.Sitaram  Tukaram 
(2).  But  this  rule  has  no  application  where 
the  obligation  to  be  enforced  does  not  arise 
under  the  altered  instrument  and  the 
instrument  is  produced  merely  as  a  piece 
of  evidence  in  proof  of  the  obligation.  It 
has  accordingly  been  held  that  a  material 
alteration  in  a  written  acknowledgment  of 
debt  does  not  render  it  inoperative  as  the 
acknowledgment  is  merely  an  evidence  of 
pre-existing  liability:  Atmaram  v.  Umed- 

(1)  74  Ind.    Cas.  20;   19  N.  L,  R.  79;  (1923)  A.  I.  R. 
(N.)  295;  7  N.  L,  J.  39. 

(2)  81  Ind,  Cas,  847;  20  N,  L.  R.  76;   (1924)  A.  I  R, 
(N.)250, 


306"  • 

ram  (3).    In  that   case   Chandavarkar,  J., 
has  observed  at  pages  620  and  621:* 

"The  principle  oi  English  Law,  which  was 
first  laid  down  in  PigoCs  case  (4)   that   the 
material  alteration  of  a  document  by  a  party 
to  it  after  its  execution  without   the  consent 
of  the  other  party  renders  it  void,  has  been 
followed   in  India.     But   all    the    decisions 
which  have  been  cited  at  the  Bar  from  the 
English  and  Indian  Law    Reports  relate  to 
cases  in  one  and    all  of  which    the  altered 
instrument  was  the  foundation  of  the  plaint- 
iff's claim  and  the  source  of  the  defend- 
ant's   obligation    or  liability.     They  were 
cases  of  written  contracts,  or  bonds  or  Bills 
of  Exchange  or  similar  instruments,    as  to 
which  it  may  be  taken  as  settled   law  both 
in  E'ngland  and    here  that    a  material  al- 
teration avoids  the  instrument   where  the 
action    is    on   the    instrument    itself:    see 
Agricultural  Cattle  Insurance    Company  v. 
Fitzgerald  (5).    The  decisions  cited  in    the 
notes  to  the  case  of  Master  v.    Miller  (6)    in 
Smith's  Leading  Cases  also  make  that  clear. 
As   pointed  out  in  the  case  of  Earl  of   Fal- 
mouthv.  Roberts  (7)  there  is  a  distinction  be- 
tween cases  in  which  the  altered  instrument 
is  merely  evidence  and  those  in  which   the 
obligation  sought  to  be  enforced  is  by  reason 
of  the  instrument  itself.    'The  rule  of  law,1 
said  Parke,  B  ,  in  that  case,   'applies  where 
the  obligation  is  by  reason  of  the  instru- 
ment1...^.     But 

no  case  has  been  cited  to  us  nor  have  we 
been  able  to  find  any  in  which  it  has  been 
laid  down  either  in  England  or  here  that  a 
written  acknowledgment  of  his  liability  by 
a  debtor  becomes  void  and  inoperative  if 
ibis  materially  altered  without  his  consent 
"by  his  creditor.  An  instrument  which 
creates  a  liability  and  gives  rise  to  a  cause 
of  action  is  one  thing  and  a  written  acknow- 
ledgment of  that  liability  is  another.*1 

Jn  Harendra  Lai  Roy  v.  Uma  Charan 
Ghosh  (8)  plaintiff  had  sued  the  defendant 
for  money  advanced.  In  the  business  book 
of  the  plaintiff,  defendant  had  acknowledg- 
ed his  liability  for  that  amount  by  signing 
his  name  over  an  eight  anna  stamp.  It  was 

(3)  25  B  616,  3  Bom.  L  R.  213. 

(4)  1L  Rep.  2.-G;  1 1  Hop.  folio  27  (a). 

(5)  (1851)  16  Q  B.  432  at  pp.  440,  441;  20  L.  J.  Q.  B. 
244;15Jur.  489;  117  E  R.  944. 

(6)  (1791)  1  8m.  L.  0  (lith  Ed.;  767;  4  T.   R.  320;  2 
K,  R.  399;  100  E.  R. 1042. 

(7)  (1842)  9  M    &  W.  469;    1  Dowl.  (N.  B,)  633;  11  L. 
J.  Ex.  180:  1*2  E  R  198;  60  R.  R.  790. 

(8j  9  0.  W   N  695.  


[SS 1  0*. 

found  that  an  entry  relating  to  interest  had 
been  subsequently  interpolated  in  the  ac- 
knowledgment and  consequently  the  Small 
Cause  Court  held  that  the  plaintiff  was  not 
entitled  to  recover  the  sum  covered  by  the 
.1  '!;:)••  \\]-  'itrsi. <'ni  and  dismissed  plaintifl's 
suit.  When  the  matter  came  up  in  revision 
before  the  High  Court,  Maclean,  C.  J.,  set 
aside  the  decree  of  the  Snfiall  Cause  Court 
and  gave  a  decree  to  thd  plaintiff  on  the 
ground  that  plaintiff  had^not  sued  on  the 
basis  of  the  altered  acknowledgment  but 
had  produced  it  merely  as  evidence  in 
support  of  the  loan.  He  pointed  out  in  that 
case  that  the  authorities  discriminated  be- 
tween the  cases  in  which  the  altered  docu- 
ment was  the  foundation  of  the  claim  and 
those  in  which  it  was  only  filed  as  evidence 
and  observed  that  the  principle  that  wheie 
a  plaintiff  sues  upon  an  instrument  which 
he  has  materially  and  fraudulently  altered, 
such  alteration  vitiates  the  instrument  had 
no  application  to  suits  in  which  the  altered 
instrument  was  not  the  foundation  of  the 
plaintiff's  claim. 

In  this  connection,  I  may  also  refer  to  tha 
case  of  Moti  Lai  Saha  v.  Monmohan  Gos* 
sami  (9).  In  that  case  plaintiff  had  sued 
the  defendant  for  recovery  of  debt  on  the 
allegation  that  the  defendant  had  bonowed 
the  debt  from  him  by  executing  promissory- 
notes  in  his  favour.  The  promissory- notes 
\vere  found  to  be  forgeries  but  still  the 
plaintiff  was  held  entitled  to  recover.  Ram- 
pini  arid  Pratt,  JJ.,  observed  in  that  case 
as  follows: — 

uWe  think,  therefore,  that  although  the 
promissory-notes  are  forgeries,  it  does  not 
follow  that  the  plaintiffs  are  not  entitled  to" 
a  decree  for  the  money  lent  by  them  if  they 
can  prove  the  loan  in  any  other  way.  And 
in  support  of  this  view,  we  need  only-  cite 
the  case  of  Pramatha  Nath  Sandal  v.  Dwar- 
ka  Nath  Dey  (10)." 

It  is,  no  doubt,  true  that  the  case  cited 
above  was  a  case  in  which  the  document 
sued  upon  was  held  to  be  forgery  and  was 
not  a  case  of  material  alteiation.  But  the 
principle  upon  which  the  decision  in  that 
case  was  based  fully  governs  the  present 
case.  That  principle  is  that  where  a  cause  of 
action  for  recovery  of  an  advance  exibts  in* 
dependency  of  any  instrument  which  may 
have  been  given  for  the  advance^  the  fact 
that  the  instrument  is  vitiated  by  fraud  is 

(9)  5  0.  W.  N.  56. 

(10)  230,  851;  ISInd,  Dee,  (N,  «.)  565, 


1). 

no  ground  for  dismissing  plaintiff's  claim 
for  recovery  of  the  advance. 

Similarly  iuDulaMeah  v.  Abdul  Raha- 
man  (11),  Newbould,  J.,  has  observed  ll 
can  find  no  decided  authority  that  the 
material  alteration  of  a  written  contract  des- 
troys the  original  debt  if  the  debt  is  not 
merged  in  the  written  contract.  If  the 
written  contract  is  a  negotiable  instrument 
this  would  usually  happen.  But  in  the  case 
of  a  simple  bond  I  would  hold  that  the 
alteration  prevents  a  suit  being  based  on 
the  bond,  and  that  the  question  whether  a 
suit  would  lie  on  the  original  debt  depends 
on  whether  there  is  a  separate  contract 
which  can  be  proved  apart  from  the  bond." 
Rankin,  J.,  has  also  pointed  out  in  that  case 
that  "an  independent  cause  of  action  must 
be  shown  if  the  doctrine  of  Master  v.  Miller 
(5)  is  not  to  take  effect.11  This  case  also  re- 
cognises the  principle  that  where  a  cause  of 
action  for  lecovery  of  money  lent  to  the 
defendant  exists  independently  cf  any  docu- 
ment which  may  have  been  obtained  from 
the  defendant  in  support  of  the  advance,  the 
fact  that  the  document  has  been  material- 
ly altered  is  no  ground  fordisinissing  plaint- 
iff's claim  for  the  advance. 

In  this  connection,  it  may  be  useful  to 
refer  by-way  of  analogy  to  cases  in  which  a 
creditor's  claim  for  recovery  of  the  loan  ad- 
vanced to  his  debtor  has  been  decreed  in 
spite  of  the  fact  the  document  obtained  from 
tire  debtor  in  support  of  the  loan  was  found 
inadmissible  to  evidence  for  want  of  proper 
stamp  or  fora  like  reason:  Banarsi  Prasad 
v.  Fazal  Ahmad  (.2)  Pramatha  Nath  Sandal 
v.  Dwarki  Nath  Dey  (10)  Ram  Bahadur  v. 
Dasari  Ram  (.3;.  These  cases  have  also 
been  decided  on  the  principle  that  where 
a  cause  of  action  for  money  lent  is  complete 
in  itself  and  where  the  claim  is  founded 
on  the  original  consideration,  it  can  be 
enforced  provided  that  the  original  con- 
sideration has  not  merged  in  the  instru- 
ment (et  g.  bond  or  promissory-note)  which 
id  excluded  from  evidence 

Bearing  in  mind,  the  principles  referred 
to  above,  let  us  examine  the  facts  of  the 
present  case  In  this  case,  Rs.  2UO  were  ad- 
mittedly advanced  to  the  defendants  on  the 
llth  February  i920  and  an  acknowledgment 
for  the  money  advanced  was  obtaind  from 
them  by  plaintiff's  predecessor  HemlaL 
The  acknowledgment  does  not  contain  the 


(11)  81  Ind.  Oas.  641;  (1924)  A,  I  R.  (C.)452. 
,  {12    28  A.  298;  3  A.  L.  J.  25;  A.  W.  N.   1906)  ! 
{W  19  Ind,  Gas,  MO;  17  0  I,,  J,  (W, 


terms  of  any  agreetoeht  tvhtcli  may  have 
been  arrived  at  between  the  parties  in  re- 
gard to  re-payment  of  the  loan, etc.  It  simply 
recites  the  fact  of  the  receipt  of  Rs.  lOO 
by  the  defendants.  Such  an  acknowledg- 
ment which  merely  evidences  receipt  of  the 
loan  does  not  amount  to  a  contract  and  fur- 
nishes no  cause  of  action:  Raghubirsingh 
v.  Udechand  (14),  Du^ga  Shanhar  v.  Ram 
Prasad  (La)  The  foundation  of  plaintiff's 
claim  is  the  advance  of  Rs.  200  made  by 
Hemlal  to  the  defendants  and  the  acknow- 
ledgment in  question  was  produced  by  the 
plaintiff  merely  in  proof  of  the  loan.  Every 
loan  carries  with  it  an  implied  promise  to 
re-pay  it,  even  though  no  express  promise, 
written  or  verbal  is  made  by  the  debtor  to 
repay  it:  Pramatha  NathSandal  v.  Dwarlta 
Natk  Dty  (10).  As  this  is  the  undoubted  law, 
it  follows  that  when  the  defendants  have 
admitted  that  they  borrowed  R?.  200  from 
the  plaintiff,  they  must  also  be  deemed  to 
have  admitted  that  they  had  promised  to 
re-pay  the  money  and  as  thev  have  failed 
to  le-pay  it,  the  plaintiff  is  entitled  to 
maintain  an  action  against  them  for  breach 
of  the  implied  promise,  independently  of 
the  acknowledgment  given  by  them  to 
show  that  they  received  the  money  and  in 
spite  of  the  fact  that  the  acknowledgment 
has  been  materially  altered.  The  fact  that 
the  acknowledgment  in  the  present  case  was 
given  simultaneously  with  the  loan  makes 
absolutely  no  difference  because  the  ques- 
tion to  be  decided  in  such  a  case  is  not 
whether  the  instrument  evidencing  the 
loan  sought  to  be  recovered  was  given  simul- 
taneously with  the  loan  or  not  but  whe- 
ther it  constitutes  the  sole  foundation  of 
plaintiff's  claim  for  recovery  of  money  lent. 
I  have  already  held  that  the  acknowledg- 
ment in  question  is  not  and  cannot  be  the 
foundation  of  plaintiff's  claim  and  conse- 
quently, plaintiff  is  entitled  to  recover  Ks.  iOO 
from  the  defendants  despite  the  fact  that 
the  acknowledgment  has  been  materially 
altered, 

In  the  view  I  have  taken  above,  it,  is  not 
necessary  for  me  to  consider  whether  the 
case  of  Kandre  Jula  Anantha  Rao  Pantulu 
v,  Kandikonda  Surayya(lQ)  which  was  cited 
before  me  by  the  learned  Pleaderforthe  ap- 
pellant and  also  the  cases  oiKhosal  Moham* 

(14)  11  0.  P,  L.  R.  65. 
15)  14  0.  P.  L.  R.  151  at  p.  152. 
(16)  55  Ind.  Gas.  697;  38  M  L.  J.  256;  (1920)  M,  W. 
N,  187;  27  M,  L,  T  134;  11  L,  3UO;  13  M,  703, 


&NI  RAJA^TA  V. 

mad  v.  Amimiddin  Mahammad  Pramanik 
(17)  and  Hemchand  v.  Govind  (18)  were 
rightly  decided. 

I  hold  that  the  plaintiff  is  entitled  to  a 
decree  for  Rs.  200.  I,  hovtever,  allow  him  no 
interest  on  this  sum.  The  appeal  is  accord- 
ingly allowed  and  the  deciee  appealed  against 
is  modified  by  substituting  Rs.  3j7-iO  for 
the  sum  decreed  in  plaintiff's  favour.  Under 
the  circumstances  of  the  case  I  order  that 
the  parties  do  bear  then  own  costs  of  this 
appeal  and  direct  that  the  costs  in  the 
Courts  below  be  paid  as  directed  by  the 
lower  Appellate  Court. 

z.  K.  Appeal  allowed. 

(17)  68  Ind.  Cas.  331;  (1023)  A.  I  K.  (0  )  318. 

(18)  86  Ind.    Cas.  185;    8  N.  L.  J.   1,  (1925)   A.  I  R. 
(N.)  243.  V 


MADRAS  HIGH  COURT. 

SKCOND  CIVIL  APPEAL  No  292  OF  1923. 

August  19,  1925. 

Present:  —  Mr.  Justice  Phillips. 

KAR1PINENI  RAJAYYA-DBFEXDANT 

—APPELLANT 

versus 
KALPATAPU  ANNAPURNAMMA 

MINOR  BY  GUARDIAN  MANGAMMA  — 

PLAINTJFF—  RESPONDED. 

Execution  -of     decree—  Death    of    judgment-  debtor 
before  sale—  Legal  representatives  not  impleaded—Sale, 


Where  subsequent  to  an  order  for  sale  of  the 
judgment-debtor's  property  in  execution  of  a  decree, 
the  judgment-debtor  dies,  an  execution  sale  conducted 
without  his  legal  representatives  being  brought  on 
record  as  parties  is  a  nullity  [p  308,  col.  2  ] 

Raghunathaswami  lyengar  v  Gopaul  Rao,  68  Ind. 
Gas.  667;  41  M.  L  J.  547,  (1921;  M.  W.  N  7A  15  L. 
W.  123;  (1922)  A.  1.  R  (M  )  307  and  Ragunath  Das  v. 
Sunder  Das  Khetri,  24  Ind.  Cas.  304;  42  C.  72;  18 
C.  W.  N.  1058,  1  L  W.  567;  27  M.  L.  J.  150,  16  M.  L. 
T.  35H,  (1914)  M.  W  N.  747;  16  Bom.  L.  R.  814.  20  0.  L. 
J.  555,  13  A  L.  J  154,411  A.  251  (P.  Oj,  lelied  on. 

Doraisami  v.  Chidambaram  Filial,  75  Ind  Cas.  46; 
47  M.  63;  45  M.  L.  J.  413;  18  L  W.  577;  33  M.  L.  T.  25; 
(1923)  M.  W,  N.  817;  (1924)  A.  I.  R.  (M.)  130,  not  fol- 
lowed. 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge  at  Masuli- 
patam,  dated  the  llth  of  September 
1922.  in  A.  S.  No.  65  of  1922,  preferred 
against  that  of  the  Couit  of  the  Principal 
District  Munsif,  Gudivada,  in  0.  8.  No.  602 
of  1919. 

Messrs.  V.  Ramadoss  and  P.  Satyanara- 
yana  Rao,  for  the  Appellant. 

Mr.  A.  Venkatachalam,  for  the  Respond- 
ent, 


[9&  T.   C. 

JUDGMENT.— The  main  question  for 
consideiation  in  this  appeal  is  whether  the 
sale  in  execution  of  the  property  of  the 
deceased  judgment-debtor  is  a  mere  irregu- 
larity or  a  nullity.  It  appears  that  in  this 
case  an  order  for  the  sale  of  the  judgment- 
debtor's  property  was  made  and  that 
before  the  sale  took  place,  the  judgment* 
debtor  died.  His  legal  representatives 
were  not  impleaded.  There  are  two  cases 
of  this  Court  which  are  exactly  applicable^ 
one  reported  in  Itaghunathaswami  lyen- 
garv.  Gopaul  Rao  (1)  and  the  other  in 
Doraisami  v.  Chidambaram  Pillai  (2).  The 
decisions  being  directly  opposed  to  one 
another,  it  is  suggested  for  the  appellant 
that  in  view  of  this  difference  of  opinion 
this  second  appeal  should  be  referred  to  a 
Bench  but,  as  I  will  explain,  J  do  not  think 
that  is  necessary. 

In  Raghunathaswami  lyengar  v.  Gopaul 
Rao  (1)  Oldfield  and  Ramesam,  JJ.,  held 
that  the  sale  in  execution  which  took  place 
after  the  death  of  the  judgment- debtor 
without  bringing  in  legal  representatives 
on  record  was  a  nullity.  Spencer  and 
Krishnan,  J  ,  in Doraiswami  v.  Chidambaram 
Hllai  (2)  held  exactly  the  contrary.  The 
Full  Bench  decision  in  Rajago^aia  Aiyar 
v.  Ramanujachariar  (3)  does  not  in  teimS 
decide  the  point  at  issue  but  it  did  hold, 
i\ ,  *:  i'.i:;Lr  Doraiswami  v.  Chidambaram 
1>  ••;  2,  that  an  omission  to  give  notice 
under  O.  XXI,  r  22  renders  a  sale  held  in 
execution  a  nullity.  It  does,  in  effect,  deal 
with  the  present  question  at  issue,  although 
in  that  case  the  judgment- debtor  was  not 
dead  but  no  notice  was  issued  in  accordance 
with  O.  XXI,  r.  22.  The  question  is,  how- 
ever, definitely  decided  by  the  Privy 
Council  in  Raghunath  Das  v.  Sunder  Das 
Khetri  (4).  That  was  a  case,  where  after 
the  sale  had  been  proclaimed  and  had 
even  been  adjourned  to  a  further  date, 
the  judgment  debtor  became  an  insolvent. 
Notice  was  given  to  the  Official  Assignee, 
but  the  notice  apparently  was  merely  a 

(1)  68  Ind.  Cae.  667;  41  M.  L.  J.  547;  (1921)  M.  W.  N, 
732;  15  L.  W.  123,  (1922)  A.  I.  R.  (M.)  307. 

(2)  75  Ind.  Cas.  46;  47  M.  63,  45  M.  L.  J.  413;   18  L, 
W,  577,  33  M,  L.  T.  25;  (1923)  M.  W.  N.  817;  (1924)  A, 
I.  A.  (M.)  130. 

(3)  8U  Ind.  Cas.  92;  47  M.  288;  46  M.  L.  J.  104;  19  L, 
W.  179;  (1924)  M.  W.    N.  182;  (1924)  A.  I.  R.  (M.)  431; 
34  M.  L.  T.  37. 

(4)  24  lud    Cas.  304;  42  C.  72;  18  O.  W  N.  1058;  1 
L.  W.  507;  27  M.  L.  J.  150;  16  M  L.  T.    353;  (U)J4)  M, 
W.N.747;  16  Bom.  L.  R.  814;  20  C.  L  J.  555;   13  A.  L, 
J,154j41  1,  A. 251  (P.O.), 


I  0.  1926], 


ALLAHABAD  BANK  LD.  V.  BHAO^ANf  DAS 


300 


notice  asking  him  whether   he  would  come 
on  record  and  it  was  not    a  notice    that 
execution  would  proceed  against  him     It 
was  there  held  that  inasmuch   as  the  pro- 
perty passed  by  operation    of  law  from  the 
judgment-debtor  to   the  Official    Assignee, 
execution    could    not    proceed    until    the 
Official  Assignee  had  been   brought,  before 
the  Court  and  an  order  binding  on  him  had 
been    obtained.    Their    Lordships  further 
remark  that  "a  notice  under  s.   248  of  the 
Code  (corresponding   to   O.  XXI,   r.   22)  is 
necessary  in  order  that  the  Court  should 
obtain  jurisdiction  to  sell   property  by  way 
of  execution  as  against  the  legal  represen- 
tatives   of  a    deceased  judgment- debtor.11 
No  distinction  can  be  drawn   between  the 
civil  death   of  a  judgment-debtor    as  the 
result  of   insolvency  and   the  actual   death 
of    the     judgment-debtor    and    the  effect 
would    appear    to    be  exactly    the  same. 
When  the  sale  in   this  suit  was    held,  the 
judgment-debtor  in     whom    the   property 
had  vested  was  dead  and   consequently  the 
property  could  no  longer  vest  in  him  and 
there  could  be  no  sale  of  his  property,  but 
onlv  of  property  which  had  been  his  before 
his  death.     The  propertv  that  was  sought 
to  be  sold  is  property  which    at  the  date  of 
the  sale  had   become    vested  in  the  legal 
representative  of  the  debtor  and  in  asmuch 
as  that    legal   representative  was    not  on 
record,  there    conld  be     no  valid   sale  as 
against    him.      Provision     for      executing 
decrees  after  the  death   of  the  judgment- 
debtor  is  contained  in  s.  50  of   the  0.  P.  C. 
which  provides  that  the   decree-holder  may 
apply  to  execute    them   against  the   legal 
representatives.    I  do  not  think  that  I  need 
discuss  the  question  whether  execution  can 
be  taken  against  a  deceased   man,  for  that 
is    not    possible.    He  cannot    be  arrested 
and  he,  has  no    longer  anv  propertv  to  be 
proceeded     against.     Therefore,    the  only 
remedy  for  a    decree-holder  is  to  proceed 
against    the   legal    representatives  as  pos- 
sessing the  assets  of  the  deceased  and  then 
the    provisions  of  O.  XXI,   r.    22    must  be 
applied.     If    they  are  not  complied    with, 
we  have  the  authority  of  the  Privy  Council 
and   a    Pull    Bench  of  this   Court    to  the 
effect  that  the  sale,  i<*  a  nullity.    The  ques- 
tion is  thus  concluded  by  authority  and  the 
difference  of  opinion  between  two    Benches 
of  this  Court  does  not  render  it   necessary 
f  >r  me    to   refer  this  case   to  a  Bench.    I 
must  follow    the     decision   of    the  Privy 
Council  in  Raghwath  Das  v/  Sunder  Das 


Khetri  (4)  and  accordingly  I  confirm  the 
finding  of  the  lower  Court  that  the  sale  wag 
a  nullity. 

Further,  an  argument  is  put  forward  by 
the  appellant  that  the  finding  of  the  lowet 
Appellate  Court  that  the  brothers  were 
divided  is  wrong  in  law.  The  Subordinate 
Judge  relies  on  oral  evidence  and  the  cir- 
cumstances of  the  case  for  arriving  at  this 
finding,  and  that  evidence  is  not  before  me 
and,  I  am  not,  therefore,  in  a  position  to 
say  that  there  was  no  evidence  on  which 
his  finding  could  be  based.  Being  a  find- 
ing of  fact,  I  must  accept  it.  The  second 
appeal  is  accordindly  dismissed  with  costs. 

v.  N.  v. 

z.  K.  Appeal  dismissed. 


ALLAHABAD  HIGH  COURT. 

EXECUTION  FIRST  CIVIL  APPEAL  No.  205  OF 

1925. 

December  11,  1925. 
Present: — Mr.  Justice  Dalai  and 

Mr.  Justice  Boys. 
THE  ALLAHABAD  BANK,  LD., 
BAREILLY— DKCKEE  HOLDER- 
APPELLANT 

versus 

BHAGWAN  DAS  JOHARI  AND  OTHERS 
— JUDGMENT  DEBTORS — RESPONDENTS. 

Hindu  Lam — Joint  family — Father,  insolvency  of 
— Family  property,  ivhether  vests  in  Receiver—  Pro- 
vincial  Insolvency  Act  (V  of  W20)t  s.  2  (d) 

On  an  adjudication  of  a  Hindu  father  as  an 
insolvent  under  the  Provincial  Insolvency  Act,  1920, 
the  joint  property  of  the  family  does  not  at  once  vest 
in  the  Receiver,  [p  310,  col.  1  ] 

SatNarainv  Behar  i  Lai,  84  Ind  Cos  883,  23  A. 
L  J  85,  47  M  L.  J  857;  10  O  &  A  L  R.  1332,  (1925) 
A'  I  R  (P  0  )  18;  (1925)  M.  W  N.  1,  L  R.  6  A. 
(P  0)1;  26  P.  L  R  81;  27  Bom.  L  R.  135;  21  L.  W. 
375,  1  L  0  50'),  1  O  W  N.  016;  6  L.  1,  29  0.  W.  N. 
797;  52  I  A  22  (P.  0  ),  followed. 

Execution  first  appeal  from  a  decree  of 
the  Subordinate  Judge,  Bareilly,  dated  the 
24th  February  1925. 

Dr.  K.  N.  Katju,  for  the  Appellant. 

Mr.  B.  Malik  for  Dr.  S.  N.  Sen,  for  the 
Respondents. 

JUDGMENT.— -This  is  an  appeal  by  a 
decree-holder,  the  Allahabad  Bank,  Ld., 
Bareilly,  against  an  order  of  the  Subordi- 
nate Judge  of  Baieilly,  dated  the  24th  of 
February  1925.  The  order  does  not  con- 
tain the  facts  of  the  case  which  must, 
therefore,  be  narrated  here,  The 


ALlaABABAD  feAKK  Lt>.  V.  BBAGWAN  DAB  JOHARL 


[92  I.  0. 


bolder  had  obtained  a  decree  against  one 
Banke  Lai  and  his  four  sons  on  the  31st 
of  Jannary  1924.  An  application  for  exe- 
cution was  presented  on  the  8th  of  May 
1924  and  the  property  of  the  whole  family 
was  attached  and  proceedings  were  being 
taken  for  sale  of  the  property.  Before  a 
sale  took  place,  Banke  Lai  alone  was  ad- 
judged an  insolvent  by  the  Insolvency 
Court  which  appointed  a  Receiver  for  his 
property.  His  property  thereupon  vested 
in  the  Receiver.  On  the  7th  of  December 
1924  subsequent  to  the  insolvency  proceed- 
ings, the  Pleader  for  the  Bank  requested  the 
lower  Court  that  the  father's  on e-fifth  share 
may  be  released  and  only  four- fifths  of  the 
attached  property  may  be  sold.  The  Court 
passed  an  order  accordingly.  On  the  26th 
of  January  1925  two  sons  of  Banke  Lai 
applied  that  the  entire  property  of  the 
family  may  be  sold  by  the  Receiver  appoint- 
ed by  the  Insolvency  Court.  There  was 
no  suggestion  that  the  entire  property  had 
vested  in  the  Receiver  upon  an  adjudication, 
in  favour  of  the  father.  On  this  applica- 
tion the  lower  Court  passed  an  order  with 
the  terms  of  which  we  do  not  agree.  The 
learned  Subordinate  Judge  directed  that 
copies  of  the  application  and  of  the  order 
of  the  Court  may  be  sent  to  the  Receiver 
in  insolvency  to  take  steps  accordingly  and 
to  act  as  if  the  entire  family  property  were 
the  assets  of  the  insolvent.  This  order 
was  not  justified  because  on  an  adjudica- 
tion of  a  Hindu  father  as  an  insolvent 
under  the  Insolvency  Act,  the  joint  pro* 
perty  of  the  family  does  not  at  once  vest  in 
the  assignee.  Their  Lordships  enunciated 
this  proposition  of  law  in  the  case  of  Sat 
Narain  v,  Behari  Lai  (1),  where  the  terms 
construed  were  those  of  the  Presidency 
Towns  Insolvency  Act  (III  of  1909).  The 
term  u  property "  is  defined  in  the  Pro- 
vincial insolvency  Act  in  the  same  words. 
(Section  2  (d)  of  Act  V  of  1920;.  That 
pronouncement  of  their  Lordships  will, 
therefore,  cover  the  present  case  also. 

On  the  6th  of  February  1925,  the  Receiver 
of  the  Insolvency  Court,  Babu  Johri,  applied 
that  he  may  be  permitted  to  carry  out 
the  pale  ci  the  entiie  family  property  and 
on  this  application  the  lower  Court  oidered 

(1)  81  Ind.  Cas  882;  23  A.  L.  J  85;  47  M.  L.  J.  857; 
10  O  &  A.  L.  K.  1332;  (1925)  A.  I.  K.  (P.  C.)  18; 
(19J5)  M.  W.  N.  1;  L.  R.  6  A,  (P.  0.;  1;  26  P.  L.  R, 
81;  27  Hem  L.  R.  135;  21  L.  W.  375;  1  L.  0.  500;  1 
O.W.N  916,  6  L,  1;  29  C,  W,  N,  797;  52  I.  A,  ?2 
?  0.). 


that  sale  jr-vHiriiM  through  'the  Amin 
and  the  C,  .-••;»>:  ••:  \  be  stopped  and  that 
the  whole  property  shall  be  sold  by  the 
Receiver  in  whom,  according  to  the  Court, 
the  entire  property  had  vested  The 
decree-holder  was  informed  of  this  order, 
Eighteen  days  later  on  the  24th  February, 
the  learned  Judge  ordered  the  execution 
case  to  be  struck  off.  This  is  the  order 
under  appeal.  It  is  in  the  following  terms. 
14  Banke  Lai  judgment-debtor  has  been 
declared  an  insolvent.  His  property  to- 
gether with  the  whole  of  the  family  pro- 
perty will  be  sold  through  the  Receiver.'* 

The  -mere  words  of  this  order  as  quoted 
above  are  not  objectionable  as  the  lower 
Court  would  be  well  advised  to  have  the 
sale  of  the  sons1  interest  and  of  the  father's 
interest  in  the  joint  family  property  carri- 
ed out  by  the  same  agency.  The  previous 
orders  of  the  lower  Court,  however,  indicate 
that  according  to  its  opinion  all  the  assets 
have  vested  in  the  Receiver.  Such  a  find- 
ing will  obviously  be  prejudicial  to  the 
decree-holder  because,  if  the  assets  are  all 
vested  in  the  Receiver,  the  other  creditors 
will  claim  rateable  shares  in  the  shares  of 
the  sons  in  the  joint  family  pioperty  and 
so  far  that  portion  of  the  property  of  the 
sons  will  not  be  available  to  the  decree- 
holder-appellant. 

We  set  aside  the  order  of  the  24th  of 
February  1925  and  direct  the  lower  Court 
to  proceed  J:','-,1-  :-ii-iLr  to  law.  We  have 
already  indicated  that  the  insolvency  of  the 
father  does  not  vest  the  interest  of  the 
sons  in  the  joint  family  property  in  the 
Receiver.  Whatever  interest  the  sons  may 
have  in  the  propeity  will  be  available  to 
the  decree-holder  appellant  to  satisfy  his 
decree  oftbeSlst  of  January  1924,  which 
was  specifically  passed  against  the  sons  as 
well  as  against  the  father.  We  think  that 
the  proper  piocedure  in  the  case  would  be 
to  carry  out  execution  proceedings  in  com- 
bination with  the  Receiver  in  insolvency 
and  arrange  so  that  the  entire  property 
both  of  the  father  and  of  the  sons  may  be 
sold  at  the  same  time.  It  appears  that 
part  of  the  immoveable  property  is  house 
property  which  could  be  sold  by  the  lower 
Couit  directly  and  part  is  revenue  paying 
properly  which  will  have  to  be  sold 
through  the  Collector  of  the  district.  There 
ought  to  be  no  difficulty  about  the  sale  of 
the  shares  of  the  sons  in  the  house  HO- 
perty  being  canied.out  at  the  same  tare 
that  the  share  of  the  father  ia  sold. 


[92  L  0.  1926]    RAJESWARI  MUTHURAMAILINGA  v.  SEORETIRY  OF  STATH  FOR  IKDIA.          311 


lower  Court  may  appoint  the  Receiver  in 
insolvency  sale  officer  for  the  house  pro- 
perty and  when  the  property  is  sold  the 
Receiver  under  the  direction  of  the  lower 
Court  and  independently  of  the  Insolvency 
Court  will  deposit  four-fifths  of  the  sale 
amount  in  the  lower  Court  for  the  benefit 
of  the  decree-holder  appellant.  There  will 
be  some  difficulty  in  selling  the  share  of 
the  sons  in  the  revenue  paying  property 
along  with  the  share  of  the  father.  It  may 
be  found  possible  by  the  lower  Court  to 
advise  the  Collector  at  the  time  of  the  sale 
that  the  sale  i>y  him  may  take  place  at  the 
same  tioi$  that  the  father's  share  is  sold. 
If  any  other  arrangement  of  joint  sale 
suggests  itself  to  the  lower  Court  and  is 
acceptable  to  the  parties,  it  may  be  adopted. 

The  respondents  were  not  represented 
to-day  and  the  appeal  was  heard  ex  parts. 
The  appellant  shall  receive  his  costs  here 
including  fees  on  the  higher  scale. 

N,  n.  Appeal  allowed. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PBTITION  No.  607  OF  1924. 

March  12,  1925. 
Present: — Justice    Sir  Kurnaraswami 

Sastri,  KT. 

B.  RAJA  RAJRSWARl  MUTHURAMAI- 

LINGA  SB  rHUPATHI  AVBttGAL  RAJA 

OF  RAMNAD — PETITIONER 

t  ersvs 
Tins  SECRETARY  OF  STATE  FOR  INDIA 

IN  COUNCIL  REPhESENTfcD   BY  THE 

COLLECTOR  OF  RAMNAD  AND  ANOTHER 
— RESPONDENTS 

Civil  Procedure  Code  (Act  V  of  1908),  0  XXIII. 
r.  3 — Compromise  between  parties  to  suit — Application 
to  pass  decree  in  terms  thereof,  pendency  of — Addition 
of  third  person  as  party  without  deciding  validity  of 
compromise,  legality  of— Remedy  of  party  affected — 
Madras  Local  Boards  Act  (XIV  of  19201  ss  SO,  38 
—'Local  Government,  power  pf,  to  rescind  contract 
embolied  in  resolution  of  Bbard— Rights  of  third 
part  tes.  ' 

Under  O.  XXIlt,  r.  3,  0.  P.  0  ,  whore  ths  terms  of 
a  co  TI promise  are  legal  and  valid,  th3  Court  is  bound 
to  p\ss  a  decree  in  tsrms  thereof  Where  the  original 
parties  to  the  suit  thus  term  inn  te  it  by  a  lawful  oom- 
pronais^,  it  is  not  0.001  patent  to  the  Court  to  add  a 
thirM  person  as  party  t)  the  proceedings  to  agit«te 
his  rights  therein  1  hs  remedy  of  suc*h.  person  who 
bus  iny  right  or  int'trost  in  the  subject-matter  of 
the  sait  is  to  iilo  a  separate  suit,  [p,  312,  cols.  1  &  2.] 

Sankaralinga  Nadan  v,  Rajemuara  Dorai,  31  M.  23G; 
12  0,  W,  S,  i>«,  *  U.  L,  T,  101;  19  M,  iu  J,  3S7;  10 


Bom.  L.  R.  781;  8  C.  L.  J.  230;  35  I  A.  176  (P.  C.), 
distinguished. 

A  suit  by  the  plaintiff  against  a  Union  Board  in 
-raspect  of  ths  ownership  of  csrtain  streets  in  the  town 
was  a?ttlsd  by  a  compromise  under  which  the  plaint- 
iffs title  to  the  streets  was  r«-^  i^rni-  "i  but  the  public? 
weie  to  be  given  access  during  specified  hours  m  a 
diy  The  said  com  promise  was  embodied  in  a  resolu- 
tion of  the  Board  and  a'i  application  was  made  by 
both  partiss  to  the  Court  to  pass  a  decree  in  term's* 
thereof.  Pending  the  disposal  of  the  petition,  the 
Government  acting  under  s  3>  of  the  Madras  Local 
Boards  Aot  rescinded  the  said  resolution  and  applied 
to  be  made  a  party  to  the  suit,  and  without  deciding 
the  question  whether  the  compromise  between  the 
parties  to  the  suit  was  lawful  or  not,  the  Court  added 
the  Government  as  party  to  the  suit.  On  revision 
against  the  said  order  • 

Held,  that  the  order  adding  the  Secretary  of 
State  a3  party,  without  determining  whether  the  com- 
promise was  legal  and  put  an  end  to  the  suit  or  not, 
was  irregular  and  must  be  set  aside  and  the  case 
remanded  to  the  Court  for  deciding  whether  the  com- 
promise was  legal  or  not  [p.  313,  cols  1  &  2.] 

Quaere — Whether  it  is  competent  to  the  Govern- 
ment, under  s  38  of  the  Madras  Local  Boards  Act,  to 
cancel  a  resolution  of  a  Board  embodying  a  valid 
contract  with  a  third  person,  where  such  person  has 
acquired  valid  rights  thereunder.  |p  315,  col  1 1 

Allen  v.  Gold  Reef 9  of  Wtst  Africa,  ( 11)00;  1  Ch  656; 
69  L  J.  Ch.  '266;  48  \V  R  452:  82  L.  T  210;  16  T.  L. 
R.  213,  7  Man  son  417,  British  Murac  Syndicate  v. 
Alperton  Rubber  Company,  (1915)  2  Ch.  186;  84  L  J. 
Oh.  665,  113  L.  T  373,  59  S  J.  491,  31  T.  L  R.  391  and 
Baily  v  British  Equitable  Assurance  Company,  (1904)  I 
Ch.  374,  73  L  J.  Ch.  240,  90  L.  T.  333,  52  W.  R.  549,  11 
Hanson  169,  20  T  L.  R.  242,  referred  to. 

Petition,  under  s.  115  of  Act  V  of  1908 
and  s.  107  of  the  Government  of  India  Act, 
praying  the  High  Court  to  revise  an  order 
of  the  Court  of  the  District  Munsif, 
Ramnad,  dated  the  15th  August  1924,  in 
I.  A.  No.  475  of  1924  in  O  8.  No.  8  of  1924. 

Mr.  A.  Kishnaswani  Iyer,  for  the  Peti- 
tioner. 

Mr.  C  V.  Ananta  Krishna  Iyer,  for  the 
Respondents. 

JUDGMENT.— This  is  an  application 
to  revise  the  order  of  the  District  Munsif  of 
Ramnad  directing  the  Secretary  of  State  for 
India  in  Council  to  be  made  a  party  to 
the  suit  which  \vas  filed  by  the  Raja  of 
Ramnnd  against  the  Union  Board  of  Ramnad 
for  a  declaration  that  certain  streets  around 
his  palace  belong  to  him  and  are  not  vested 
in  the  Union  Board,  Trouble  seems  to 
have  arisen  from  the  fact  that  during  the 
survey  under  the  Survey  Act,  these  roads 
were  classified  as  public  streets  The  suit, 
however,  as  appears  from  the  note  of  the 
PUtri't  Muu^if  vvas  not  a  suit  under  the 
Survey  Act,  but  was  a  suit  by  the  plaimiff 
to  establish  his  title  to  the  roads.  Th^re 
was  a  compromise  entered  into  between  the 
Raja  of  Ritmaad  and  the  Uuiou  Board  and  • 


RAJSSWARI  MUTHURAMAIUNGA  V.  SBCKEfART  OF  STATE  FOR  INDIA.       |J2  *• 


this  compromise  was  entered  into  after   a 
resolution  of  the  Union  Board,    A  joint 
petition  was  put  in  under  0.  XXIII,  r.  3  of 
the  0.  P.  0  on  the  26th  of  April  1924  where 
it  was  stated  that  the  parties  had  come  to 
an    agreement  and  that  a  decree  should  be 
passed  in  terms  of  the  razinamah.    By  that 
razinamah  the  defendant  Board  recognised 
the  ownership  of  the  plaintiff  over  the  lanes 
A,  B  and  0  mentioned  in  the  Commission- 
er's plan  ;  the  plaintiff  was  to    allow  the 
public  free  use  of  the  lanes  from  5  A.  M.  till 
9  p.  M.  for  ever  ;   and  the  plaintiff  was  given 
the  right  to  close  the  lanes  except   during 
the  hours  when  the  public   were    allowed 
access ;  each  party  was  to  bear  its  own  costs. 
It  was  prayed  that  a  decree    be  passed  in 
terms  of  this  razinamah.    This  petition  was 
put  in  on  the  26th  of  April  but  no  order 
was    passed  on    it     It  appears  from  the 
affidavit  filed  on  behalf  of  the  Secretary  of 
State  for  India  in  Council  that  the  Govern- 
ment on  the   4th  of  July  1924,  long  after 
this  petition  was  presented,  and  purporting 
to  act  under  s.  36  of  the  Local  Boards  Act 
rescinded   the    resolution     of     the    Union 
Board  to  enter  into  a  compromise.    On  the 
date  the  petition  to  record  the  compromise 
came    on    for    hearing,    the   Secretary  of 
State  for  India  in  Council  put  in  a  petition 
to  be  made  a  party  to  the  suit  and  the  Dis- 
trict Munsif  without  deciding    the  petition 
already  filed  to  record  the  compromise  pass- 
ed an  order  making  the  Secretary  of  State 
for  India  in  Council  a  party  to  the    suit. 
The  present  revision  petition  is  filed  against 
that  order. 

The  contention  of  Mr.  Krshnaswamy  Iyer 
for  the  petitioner  is  that,  under  O.  XXIII, 
r.  3,  C.  P.  C  ,  the  Court  was  bound  to  pass  a 
decree  in  terms  of  the  compromise,  such 
compromise  being  legal  and  valid  and  that 
it  was  not  competent  to  the  Court  to  add  a 
party  to  the  proceedings  where  the  original 
parties  terminated  the  suit  by  a  lawful  com- 
promise. Order  XXIII,  r.  3  runs  as  follows: — 
"  Where  it  is  proved  to  the  satisfaction  of 
the  Court  that  a  suit  has  been  adjusted 
wholly  or  in  part  by  any  lawful  agreement 
or  compromise,  or  where  the  defendant 
satisfies  the  plaintiff  in  respect  of  the  whole 
or  any  part  of  the  subject-matter  of  the  suit 
the  Court  phall  order  such  agreement,  com- 
promise or  satisfaction  to  be  recorded,  and 
shall  pass  a  decree  in  accordance  therewith 
so  far  as  it  relates  to  the  suit.1'  It  seems 
to  me  to  he  clear  that  if  this  compromise 
between  the  Union  Board  and  the  plaintiff 


was  a  lawful  and  valid  one,  the  District 
Munsif  had  no  power  to  add"  any  party  but 
he  had  only  power  to  pass  a  decree  in 
terms,  of  the  compromise. 

Sankaralinga  Nadan  v.  Rajeswara  Dorai 
(1)  has  no  application.  In  that  case  the 
defendants  who  were  Shanars  were  sued  as 
representing  their  community.  The  High 
Court  found  that  the  compromise  after 
decree  passed  in  favour  of  the  trustee  by 
the  Subordinate  Judge  was  a  breach  of 
trust  on  the  part  of  the  trustee  and  that 
third  parties  interested  were  entitled  to  in- 
tervene. Their  Lordships  of  the  Privy 
Council  upheld  the  order  of  the  High  Court. 
In  the  present  case  there  is  no  such  charge 
and  the  suit  is  not  filed  by  or  against  either 
party  in  a  representative  character. 

The  fact  that  the  petitioner  claims  a 
right  or  interest  in  the  matter  cannot,  if  the 
suit  was  terminated  lawfully  by  the 
original  parties  thereto,  allow  third  parties 
to  agitate  their  rights  in  the  suit.  If  third 
persons  have  any  interest  in  the  matter, 
their  remedy  is  to  file  a  separate  suit.  The 
District  Munsif  has  passed  no  orders  on 
the  validity  of  the  compromise  and  I 
think  that  the  order  which  he  has  passed 
making  the  Secretary  of  State  for  India 
in  Council  a  party  is  clearly  premature. 
The  first  question  to  be  determined  was 
whether  the  compromise  was  legal.  On 
this  part  of  the  case  I  have  heard  the  argu- 
ments both  of  Mr.  Krishnaswami  Iyer  for 
the  petitioner  and  of  Mr.  Anantakrishna  Iyer 
for  the  Secretary  of  State.  Mr.  Krishna- 
swami Iyer  argues  that  the  Local  Boards 
Act  constitutes  the  defendant,  the  Union 
Board  of  Ramnad  as  a  Corporation  with 
all  rights  of  suing  or  being  sued,  or  ac- 
quiring, holding  or  transferring  property 
moveable  or  immoveable,  or  to  contract  and 
do  all  other  things  which  it  considers  proper 
or  expedient  for  the  purposes  for  which  it 
was  constituted.  The  streets  vested  in  the 
Board  under  the  Act  and  that  Board  was, 
having  regard  to  the  allegations  in  the 
plaint,  the  proper  party  to  be  impleaded. 
The  contract,  therefore,  which  resulted  in  the 
razinamah  was  a  contract  entered  into  by  a 
body  which  had  authority  to  enter  into  the 
contract,  Such  beiijigthe  case,  there  could 
be  no  question  of  t'he  contract  not  being 
enforceable.  It  is  contended  by  him  that  the 
provisions  of  s.  38  of  the  Act,  which  gives 

(i)  31  M.  236;   120,  W.  N.  94C;  4  M.  L.  T.  101.  38 
M.  L.  J.  387:  10  tiom,  1*  R,  781;  8  C.L,  J.  230;  c5  1, 


$2  t  0. 1926j 

the  Government  the  power  to  suspend  or 
cancel  any  resolution  of  the  Local  Board, 
can  only  be  exercised  so  long  as  the  matter 
rests  ia  the  stage  of  a  mere  resolution  which 
as  between  the  Board  and  the  Government 
the  Government  can  interfere  with,  and 
that  so  long  as  the  rights  of  third  parties 
are  validly  created  under  a  contract  which 
cannot  be  impeached  on  the  ground  of  fraud 
or  misrepresentation  or  ultra  vires,  the  con- 
tract is  enforceable  irrespective  of  what 
the  Government  may  do  under  s.  38.  Re- 
ference has  been  made  to  the  decisions 
in  Allen  v.  Gold  Reefs  of  West  Africa 
(5),  British  Murac  Syndicate  v.  Alperton 
Rubber  Company  (3)  and  Baily  v.  British 
Equitable  Assurance  Company  (4)  and  to 
Vol.  VIII  of  Halsbury's  Laws  of  England 
p.  384.  It  is  argued  by  Mr.  Anantakrishna 
Iyer  that  s.  38  by  necessary  implication  ren- 
ders all  contracts  invalid  where  such  con- 
tracts are  based  upon  the  resolution  which 
has  been  set  aside  by  the  Government  in 
other  words,  that  all  Contracts  which  are 
entered  into  by  Local  Boards  will  by  virtue 
of  s.  38  be  of  no  effect  if  the  Govern- 
ment later  on  rescind  the  resolution  by 
virtue  of  the  powers  vested  in  them 
under  that  section  which  gives  no  time 
within  which  the  contract  may  be  rescind- 
ed. This  would  really  mean  that  all  con- 
tracts are  liable  to  the  risk  of  being  cancel- 
led at  any  period  irrespective  of  the  rights 
of  the  parties.  As  at  present  advised,  I  am 
not  prepared  to  concede  so  wide  a  proposi- 
tion, but  it  is  unnecessary  for  me  to  give 
any  decision  on  the  point  at  this  stage  of  the 
proceedings  especially  as  any  decision  pass- 
ed by  me  on  this  point  would  not  be  subject 
to  an  appeal.  If  the  case  goes  to  the  Dis- 
trict Munsiffor  adjudication  as  to  the  vali- 
dity of  the  compromise  and  should  he  pass 
any  order  one  way  or  the  other,  it  would 
be  subject  to  an  appeal.  As  it  is,  it  is 
difficult  to  uphold  the  order  of  the  District 
Munsif  who  adds  a  party  without  determin- 
ing whether  the  compromise  has  put  an  end 
to  the  suit.  There  ia  no  question  abnufc  the 
effective  addition  of  parties.  I  also  refrain 
from  saying  whether,  should  he  hold  that 
the  compromise  is  invalid,  this  is  a  case  in 
whicti  the  Secretary  of  State  for  India  in 
Council  should  be  made  a  party. 

(2)  (1930)1    Oh.    656;    6)  L.  J.  Oh.  266;    43  W.  R. 
452;  82  L.  T.  210;  16  T.  L.  E.  213;  7  Mansoix  417 

(3)  U<H5)  2  Oh.  188;  81  L,  J.  Ch.  665;  113  L.  T.  373; 
598.  J.  494;  31  T,  L.  R.  391. 

(4;  (1901)  1  Oh.  374r  73  L,  J.  Oh.  240;  90  L.  T,  335; 
62  W<  It,  549;  11  Mauson  169;  20  T.  L,  K.  242, 


SITARAMU   NANAKCHAN'D.  3l,1 

The  result  is  that  the  order  of  the  District 
Munsif  is  set  aside  and  the  case  remanded 
for  disposal  in  the  light  of  the  observations 
made  above.  Costs  will  abide  and  follow 
the  result. 

N.  H.  Petition  allowed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  ifc68  OF 

January  17,  J925. 
Present;— Mr.  Justice  Harrison. 
SITA  RAM  MINOU,  THROUGH  H1KAM  SAIN 
—DEFENDANT — APPELLANT 

versus 

NANAK  CHAND  REPRESENTATIVE  OF 
PIARE  LAL  DIED—PLAINTIFF—RESPONDENT. 

Vendor  and  vendee — Covenant  of  indemnity  against 
loss — Pre-emption  decree — Vendor  s  liability. 

A  vendor  who  by  virtue  of  a  clause  in  the  salc- 
deed  takes  upon,  himself  to  recoup  any  loss  incurred 
by  the  vendee  in  consequence  of  any  suit  ("kisi  qism 
ka  dawa")  by  anybody  in  relation  to  the  property 
sold,  is  bound  to  mate  good  the  loss  on  vendee's 
losing  his  land  on  a  pre-emption  decree  being  pas&ed 
against  him  |p  .314,  col.  1.] 

Gtmlam  Jilani  v.  Imdad  Husain,  4  A.  357,  A.  W,  N. 
(18K2)  67,  2  Ind  Dec  (N  s.)  979,  not  followed. 

Wazira  v.  Shadi  Khan,  67  P.  li  1881,  referred  to 

Second  appeal  from  a  decree  of  the  District 
Judge,  Hissar,  dated  the  8th  April  1924, 
modifying  that  of  the  Fourth  Class  Sub- 
Judge,  Hissar,  dated  the  4th  October  b)23. 

Pandit  Nanak  Chand,  for  the  Appel- 
lant. 

Lala  Anant  Ram  Khosla  for  Lala  Jagan 
Natti  Agartval,  for  the  Respondent. 

JUDGMENT. The  only  points  in 

this  case  are  whether  a  vendee  whose  sale  was 
pre-empted  was  entitled  by  a  clause  in  his 
covenant  to  recover  from  his  vendor  the 
loss  which  he  suffered,  and  whether  apart 
from  this  clause  on  general  principles  his 
confession  of  judgment  in  the  sense  that 
he  admitted  the  plaintiff's  right  to  pre- 
empt debars  him  from  obtaining  the  relief 
which  has  been  given  to  him  by  both  the 
lower  Courts.  Finally  there  is  a  cross- 
objection  in  which  he  claims  Rs.  25,  the 
sum  allowed  by  the  Trial  Court  and  dis- 
allowed by  the  District  Judge,  being  the 
costs  incurred  by  him  in  execution  in  en- 
deavouring to  obtain  an  order  from  the  Exe- 
C'ltins:  Court  that  his  vendor  was  liible 
to  mak?  «  )od  the  sum  re-pnyable  to  the  pre- 
emptor  and  thereby  save  the  whole  of  this 
litigation.  The  relevant  portion  of  the  con- 
tract of  sale  runs  aa  follows:—  ' 


314 


MATTAPALLI  VBNXATABATNAM  V.  VEPPU  S1TARAMAYYA.  [92  L  0.  1926] 


"Yehbai  $ahi  hai  aur  bila  kisi  shart  ke 
hai,  jaidad  mask ur  manmuqirr  ne  Musam- 
miriu  Shams-ud-Din  wa  Abdur  Rahman  wa 
Munaiver  pisran  Salah-ud-Dinwa  Musam- 
mat  Allah  Jawai  bewa  tiaiah-ud-Din  qaiim 
Sheikh,  safcinHissar,  se  kharidi  Aai,  agar 
bainn  ya  un  ka  koi  waris  jaidad  mazkur  ke 
mnt'tlliq  kisi  kism  ka  dawa  karen  aur  us 
se  koi  nuqsaw  kisi  kism  ka  tnushtri  ko  ho  to 
n.9  nuqsan  wa  kharcha  muqaddama  ka 
m'inmuqirr  bazat-i  khud  zimmawar  hoga, 
aur  meri  jaidad  uski  zimmewar  hogi,  niz 
la  ad  tahrir  wasiqa  haza  agar  koi  sahim  wa 
shar'ik  mera  ya  aur  koi  shakhs  kisi  kism 
ka  dawa  jaidad  mubaia  ki  babat  karega  to 
us  ki  zimmewar i  manmuqirr  ki  hogi  auraise 
dawc  se  jo  kuchh  harjwa  nuqsan  /nushtri  ka 
hoga  uski  adaigi  ka  manmuqirr  zummewar 
hog i,  mushtri  ko  ikhtiar  hoga  ke  ivoh 
harjana  rwa  nuqsan  meri  zat  wa  jaidad  liar 
Icisn  se  jis  tarah  chahen  wasul  karle" 

It  has  been  held  that  under  this  clause 
the  vendor  is  liable  to  recoup  the  vendee  for 
his  losses.  Counsel  on  appeal  relies  on 
Ghulam  Jilani  v.  Imdad  Husain  (I)  which, 
though  not  expressly  dissented  from  in 
Wasira  v.  Shadi  Khan  (2),  was  certainly  not 
followed.  It  appears  to  me  that  whatever 
may  be  the  view  taken  of  the  words  used  in 
the  contract  which  forms  the  subject-matter 
of  Ghulam  Jilani  v.  Imdnd  Husain  (1)  the 
words  "aur  koi  shakhs  kin  kism  ka  dawa 
jaidad  mubaia  ki  babat  karega"  most  certain- 
ly cover  a  pre  emption  suit.  The  vendor 
g  larariteed  peaceful  enjoyment  to  his 
vendee  and  the  clause  was  not  confined  to 
any  patent  defect  of  title  existing  before 
sale,  but  covered  the  inherent  and  potential 
defect  which  would  become  tangible  and 
reil  as  soon  as  a  pre-emption  suit  was  lodged 
by  a  competent  person.  I  find,  therefore, 
agreeing  with  the  learned  District  Judge 
that  under  this  clause  the  defendant  is 
liable  to  make  good  the  losses  by  the  plaint- 
iff. 

The  second  point  appears  at  first  si^ht  to 
be  very  much  stronger  than  it  really  is. 
In  the  preemption  suit  the  defendant- 
vendee  admitted  the  title  of  the  pre-emptor 
and  at  first  the  vendor  denied  it,  and  an 
isun  was  framed  as  to  whether  the  subject- 
mat  t?r  of  the  suit  really  consisted  of  shops, 
regarding  which  there  was  no  right  of  pre- 
emption. On  going  through  the  record  of 
the  pre-emption  case  I  find  that  on  the  5th 

.0}  1  A.  357;  A.  W.  N.  (1882)  67;  2  Jnd,  Dec.  (».  s.) 
979 

2)  67  P.  R,  1881. 


of  October  1917  the  vendor  himself  stated 
on  solemn  affirmation  that  he  did  not  con- 
test the  pre  eoiptoi's  right  to  bring  the 
suit.  Counsel  urges  that  he  may  have  been 
induced  to  do  so  because  of  the  ciaven 
conduct  of  the  vendee,  but  it  is  impossible 
to  get  over  the  fact  that  he  hinibelf  con- 
fessed judgment  on  this  point  and  cannot 
now  plead  lhat  the  whole  of  the  lot-sea  of  the 
suit  are  due  to  the  carelessne&s  or  dishonesty 
of  his  vendee.  On  this  point  albo,  therefore, 
there  is  no  reason  why  the  plaintiff  should 
not  succeed. 

As  to  the  cross-objection  the  District 
Judge  was  apparently  under  the  impreesion 
that  this  sum  of  Rs.  25  foimed  part  of  the 
costs  incurred  in  the  pre-emption  case  pro- 
per. They  were  incuired  and  1  think  bona 
fide  in  execution  proceedings,  and  this  be- 
ing so  I  think  the  plaintiff  is  entitled  to 
recover. 

I  dismiss  the  appeal  with  costs,  and  I 
accept  the  cross- objections  also  with  costs. 
The  decree  will  be  in  the  same  form  as 
granted  by  the  District  Judge,  i.  e  ,  against 
Sita  Rarn  to  the  extent  only  that  he 
received  property  from  Jai  Kishan  Das  his 
father. 

N.  M.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPICAL  No.  1800  OF 

AND 

CIVIL  MISCELLANEOUS  SECOND  APPEAL 

No  3(i  OF  1*22. 

July  28,  1925. 

Present  : — Mr.  Justice  Phillips. 
MATTAPALLI  VENKATARATNAM 

AND  ANOTHER— -PLAINTIFFS  -APPELLANTS 

.versvts 
VEPPU  S1TARAMAYYA— DEFENDANT 

—  RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1008),  0.  XXI,  r.  11, 
0  XXXIV— Suit  for  redemption — Decree  for 
possession — Mesne  profit*  left  unasce? tamed— Decree, 
whether  preliminary  or  final— Subsequent  application 
for  ascertainment  of  mcswe  ptofits,  maintainability  of. 

In  an  appeal  from  a  decree  in  a  suit  for  redemption, 
the  Appellate  Court,  in  remanding  the  suit,  directed 
accounts  to  be  taken  up  to  the  date  fixed  for  redempr 
tion.  The  Trial  Court  after  inquiry  found  that  the 
mortgage  amount  deposited  was  in  excess  of  the 
amount  du?  to  the  mortgagee.  Accordingly  a  decree 
was  given  to  the  plaintiff  for  possession  of  the  suit 
land.  The  question  pf  mesne  profits  was  left  \m« 


ffi2  I.  0,   1928j 


MATTAPALLt  VflNKATAfcATXAtf  V.  VH.'PCJ  SlTAftAMAYYA. 


Sit 


-  Held,  (I)  th$t  the  decree  was  partly  final  and  partly 
preliminary,  final  as  to  possession  and  preliminary  in 
0o  far  as  the  question  of  mesne  profits  was  left  un- 
decided ;  [p.  3l5?  col  2.] 

(2)  that  an  application,  therefore,  properly  lay  under 
0.  XXXfV,  C.  P.  C  ,  for  the  ascertainment  of  mesne 
profits,  [p.  316,  col.  1  I 

Muhammad  Abdul  Majid  v.  Muhammad  Abdul  Aziz, 
19  A.  155,  21  LA  2*;  7  Sar  P.  C.  J.  Ill,  9  Ind  Dec. 
(N.  s)  103  (P.  0.),  followed. 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Co- 
canada, dated  the  10th  August  1922,  in  A.  8. 
Nos.  7  and  11  of  19:^  presented,  against 
that  of  the  Court  of  the  Principal  District 
Munsif,  Cocanada,  dated  the  12th  October 
1921,  in  O  S.  No.  43  of  1921. 

Appeal  against  a  decree  of  the  Subordi- 
nate Judge,  Cocanada,  dated  the  3rd  August 
1921,  made  in  A.  S.  No.  1  of  1921,  presented 
against  an  order  of  the  Court  of  the  Prin- 
cipal District  Munsif,  Cocanada,  dated  the 
30th  August  1920,  made  in  K  P.  No.  529  of 
1919,  in  0.  S.  No.  1  of  1917  on  its  file. 

Mr.  K.  Kutnaraswami  Rao,  for  the  Appel- 
lant. 

Mr.  P.  Somi  Sundaram,  for  the  Respond- 
ent. 

JUDGMENT.—  The  appellants  in  this 
case  brought  a  suit  for  redemption  and  a 
decree  was  passed  in  1917.  The  appeal 
against  the  decree  was  decided  on  22nd 
February  1918.  In  that  judgment  the  Ap- 
pellate Court  passed  the  following  order:  — 
"In  a  redemption  suit  there  should  be  a 
final  and  complete  adjustment  of  all  the 
accounts  between  the  parties  upto  the 
time  of  actual  redemption  and  no  claim  for 
mesne  profits  can  be  kept  outstanding  or 
can  be  enforced  by  the  mortgagor  subse- 
quently —  Account  should,  therefore,  be  taken 
down  to  the  date  to  be  fixed  in  the  decree 
for  redemption."  A  fresh  enquiry  was,  there- 
fore, held  by  tlie  District  Munsif  and  on 
5th  December  1  918  he  passed  a  decree  find- 
ing that  the  mortgage  amount  deposited 
was  in  excess  of  the  amount  due  to  the 
mortgagee  and  that  it  was,  therefore,  un- 
necessary to  pass  decree  for  payment  of  the 
amount  and  possession  to  be  given  on  pay- 
ment, He  accordingly  gave  a  decree  to  the 
plaintiff  for  possession  of  the  suit  land  and 
further  held  that  the  question  of  me>sne  pio- 
fits was  left  undecided.  IJjihtlielovxer  Courts 
have  held  that  this  is  in  itself  a  final  decree 
and  that  this  question  of  inesne  profits  not 
having  been  decided,  the  plaintiff  is  pr,  elud- 
ed from  asking  the  Court  to  ascertain  what 
those  profits  are.  Ordinarily  in  a  redeinp- 
\ion  suit  tliei  should  be  a  preliminary 


decree,  followed  by  a  final  decree.  It , 
to  me  that  this  decree  is  in  fact  partly  fin  il 
and  partly  preliminary.  In  so  far  as  it  is 
a  decree  for  possession  it  is  final,  and  in  FO 
far  as  it  leaves  the  question  ofrmesne  piofits 
undecided  and  expiessly  states  that  it  \\as 
so  left,  it  is  preliminary  to  an  ascertainment 
of  those  inesne  profits.  The  plaintiff  put 
in  an  application  which  purpoitp  to  he 
under  O  XXI,  r  11,  for  dchvejy  of 
sion  and  for  attachment  of  moveahles 
O,  XXI,  r.  35  and  0.  XXI,  r.  43  and  added 
a  prayer  to  ascertain  the  inesne  profits  from 
the  date  of  suit.  This  petition  was  put  in 
on  3id  November  1911)  and  it  came  hefoie 
a  different  Munsif.  He  held  that  it  was  not 
open  to  the  plaintiff  to  ask  for  mesne  profils 
and,  therefore,  dismissed  the  petition.  On 
appeal  to  the  Subordinate  Judge,  his  order 
was  confirmed  If  the  Munsif  intended  by 
his  order  to  have  the  ascertainment  of 
mesne  profits  adjourned  to  a  future  date, 
these  orders  of  dismissal  are  clearly 'wrong. 
The  language  of  the  decree  saying  that  the 
question  of  mesne  profits  is  left  undecided 
is  somewhat  unusual  and  it  is  contended  for 
the  respondents  that  it  must  be  taken  to 
mean  that  the  lelief  was  refused  and  that  no 
effect  can  be  given  to  the  order  leaving  the 
mesne  profits  unascertained.  When  we 
consider  that  the  appellate  judgment  di- 
rectly ordered  the  Munsif  to  take  an  account 
and  ascertain  the  mesne  profits  and  has 
given  as  a  ground,  therefore,  that  the  mort- 
gagor would  have  no  right  to  obtain  any 
relief  in  a  subsequent  suit,  it  is  hardly  con- 
ceivable that  the  Munsif  would  have  acted 
exactly  contrary  to  the  orders  given  by  the 
Appellate  Court,  even  though  he  might  have 
been  personally  of  the  opinion  that  that 
order  was  wrong.  That  fact  has  to  be  taken 
into  account  in  considering  the  suggestion 
of  the  respondents.  On  the  other  hand 
if  the  interpretation  put  upon  the  df  cree 
by  the  appellant  is  correct  the  Munsif 
would  not  have  been  guilty  of  this 
disrespect  of  the  Appellate  Court's  order. 
Although  this  order  is  not  strictly  in  accord- 
ance with  the  form  that  it  should  have 
taken,  I  think  we  must  look  to  the  circum- 
stances which  led  up  the  decree  and  inter- 
pret it  wvoniiimly.  1  think  it  is  clear  that 
it  was  interpreted  as  a  preliminary  decree 
by  the  appellants  when  they  put  in  their 
feiibbrqn  nt  application.  No  doubt  their 
prayer  Jor  ascertainment  of  mesne  piofits 
should  have  been  put  in  under  O.  XXXIV, 
but  I  do  not  .think  that  the  omisaioa  to  spe- 


316 


NANAK  OHAND  V.  RAM  PRASAD. 


[92  I.  0.  1926] 


cify  the  prorision  of  law  is  a  serious  objec- 
tion. If  necessary,  an  amendment  of  the 
petition  might  have  been  ordered  to  bring 
it  into  confirmity  with  strict  procedure  but 
the  omission  4o  specify  0  XXXLV,  cannot 
deprive  the  plaintiff  of  his  rights. 

A  large  number  of  authorities  have  been 
cited  before  me  in  this  respect  but  I  do  not 
think    it  is  necessary  to  deal    with  them 
here  because    of  the  interpretation  that  I 
put  upon  this  decree.    I  may  refer  to  a 
Privy    Council     case    Muhammad    Abdul 
Majid    v.    Muhammad   Abdul    Aziz    (1)  in 
which  the    question  of  mesne  profits  was 
reserved    when    the  decree    was     passed 
and     although      there    was  a    final    dis- 
posal of  oae  portion  of  the  subject-matter 
of  the  suit,  it  was  held  that  it  was  open  to 
the  Court    to    subsequently  ascertam  the 
mesne  profits  and  pass  further  decree.    It 
seems  tome  that  that  is  in  accordance  with 
what  I  propose   to     do  now.    I,  therefore, 
allow  this  appeal  and   remand  the  Execu- 
tion Petition    No.  529  of  1919  to  the  Dis- 
trict Munsif  for  disposal  according  to  law. 
The  respondents  will  pav  the    appellant's 
costs  in  A.  A.  A.  0.  No.  36  of  1922  through- 
out.   In   this  view  the  suit  filed    by    the 
plaintiff  to  recover  the  mesne    profits  is  not 
maintainable    and,    therefore,  the    second 
appeal     must    be    dismissed.     Under    the 
circumstances  I  award  no  costs. 
v  N   v.  Appeal  dismissed. 

(1)  19  A.  155,  24  I  A.  22;  7  Sar.  P.  C  J   111,   9  Ind. 
DJC.'(X.  s.)  103  (P.  C) 


ALLAHABAD  HIGH  COURT. 

SKCOND  CIVIL  APPEAL  No.  1391  OP  19 J4. 

October  23.  1925 

Present :—  Mr,  Justice   Sulaiman. 

NANAK  CHAND— PLAINTIFF— 

APPELLANT 

versus 

RAM  PRASAD  AND  OTHERS— DEFENDANTS- 
RESPONDENTS. 

Hindu  Law— Joint  family— Mortgage  by  manager- 
Execution  sale— Suit  to  set  aside  sale -Legal  neces- 

Th3  proposition  that  where  the  property  of  a  Hindu 
ioint  "family  has  passed  out  of  the  family  in  execution 
of  a  decree  and  rights  of  a  third  party  have  come  in, 
the  sale  cannot  be  set  aside  unless  it  is  established  that 
the  debt  was  tainted  with  illegality  or  immorality, 
applies  only  to  cases  where  the  persons  who  challenge 
tUe  transaction  are  sons  or  grandsons  of  the  transferor, 


It  is  only  when  the  transfer  has  been  made  by  a 
father  or  grandfather  that  the  question  of  thft  debt 
having  bsen  tainted  with  immorality  or  illegality  can 
arisa.  No  such  consideration  arises  when  the  transfer 
has  baon  made  by  an  uncle  and  a  mere  manager  of  a 
joint  Hindu  family.  In  such  cases  the  transfer,  unless 
it  is  suppnrtsd  by  legal  necessity,  cannot  be  upheld, 
[p  317,  cols.  1&'2] 

Ram  Chandra  v  Muhammad  Nur,  73  Ind.  Cas.  656; 
21 A  L  J.  485,  45  A  515,  (1923)  A  I  R  (A.;  591, 
Jadubir  v  Gajadhar,  75  Ind.  Cas  785,  21  A  L  J. 
80:);  (1924)  A.  I  K  (A  )  163.  L  R  5  A  53  Civ ,  and 
GajadharPandev.  Jadubir  Pand?t  85  Ind.  Caa.  31  22 
A.  L  J  980,  L.  R.  5  A.  780  Oiv  ;  (1025)  A  J  R  (A.) 
18U;  47  A  122,  distinguished 

Second  appeal  against  a  decree  of  the 
District  Judge,  Shahjahanpur,  dated  the 
5th  of  August  1924. 

Mr.  S.  K  Dor,  for  the  Appellant. 
Mr.  Harnandan  Prasad,  for  the  Respond* 
ents. 

JUDGMENT,— This    is    a    plaintiffs 
appeal  arising  out  of  a  suit  for  partition  of 
a,  {th  share    in    a    house  and    a  shop.    In 
1893  there  was  a  partition  suit    brought  by 
Salig  Ram,  a  cousin  of  the  contesting  defend- 
ants' fathers,  for  separation  of  his  share. 
That  suit  was     decreed    and   separate  lots 
were  allotted  to  Salig  Ram  and  his  brothers. 
According  to  the    judgment  of  the  Court 
of  first  instance  the  lots  marked  yellow  and 
red  were  given  to  Lalnian  and    Jagannath, 
the  fathers   of  the  three  contesting  defend- 
ants.   Subsequently    Jagannath    made     a 
mortgage    of   the    ^th    share    allotted    to 
him    and  Lalman    in    favour  of    one  Stub 
Narain.    A  suit  was  brought  on  the  basis 
of  this  mortgage  deed   against  Jagannath 
and   his  sons,  two  or  the  contesting  defend- 
ants u  ho  were  impleaded   as  minors  under 
the   guardianship   of    Jagrinnath     himself. 
To  this  suit  neither  Lalman    nor  his  son 
K<\m   Frasad,  the  other  defendant,  was  im- 
pleaded.   The  suit  was  decreed.   The  decree 
was  sold  to  the  present   plaintiff  who  put  it 
in   execution,  and  the  mortgaged  property 
was  put   up  at  auction  sale   and  purchased 
by  the  plaintiff.    He  also  obtained  a  delivery 
of  symbolical    possession    over     the     pro- 
perty purchased   by  him  at  auctions    but 
admittedly  he  did  not  succeed  in  obtaining 
actual  possession  of  the  house  and  the  shop. 
The  present  suit  has  been  instituted  for 
an  actual  partition  and   separation  of  the 
|th    share.     The     suit    was    resisted    by 
the  sons  of  Jagannath  and  his  nephew  on 
the  ground   that  the  mortgage  of    11)08    was 
without  any  legel     necessity  and  was  in- 
operative.   Both  the   Courts    below    have 
dismissed  the  claim.    The  lower  Appellate 
Court  baa  .held  that  Jagannath  bis   eons 


.0.1928] 


BlSpBN  SIKGH  V.  WASAWA  SIK 


K^tt. 


arid  his  nephew  were  members  of  a  joint 
Hindu  family  and  that  the  mortgage  was 
without  any  legal  necessity.  It  has  further 
held  that  the  mortgage  debt  was  not  tainted 
with  any  illegality  or  immorality  but  that 
inasmuch  as  the  plaintiff  had  not  obtained 
actual  possession  of  the  property,  the  pro- 
perty could  uot  be  said  to  have  passed  out 
of  the  family  so  as  to  make  the  rule  laid 
down  by  their  Lordships  of  the  Privy 
Council  applicable. 

The  first  point  to  consider  in    second  ap- 
peal is  whether    the  finding  of  the  lower 
Appellate  Court  that  the  family  is  joint  must 
be    accepted.    Prima  facie  it  is  clearly   a 
finding  of  fact  and  cannot  be  <'h:il!<  rtr'-'l 
in  second  appeal.     The  learned    Vakil  lor 
the  appellant,   however,   urged  that  in  the 
litigation  of  1899  the  shares  of  Lai  man  and 
Jagannath    also   were  separated    and  that, 
therefore,  the  partition  decree    of   that  year 
involved  a  separation  between  the  two  bro- 
thers Jagannath     and  Lalman  also,     This 
argument    is  based  on  the  passage  in  the 
judgment  of  the  Court  of  first  instance  that 
two  lots  yellow  and  red  belonged  to    Lal- 
man  and  Jagannath,    That  however  does 
not  shotf  that  each  got  one  lot  and  not  that 
the   two    lots    were  given  to  both  jointly. 
I,  therefore,  feel  bound  to  accept  the  find- 
ing of  the  lower  Appellate  Court  that  Jagan- 
nath his  sons  and  nephew  Ram  Prasad  form- 
ed a  joint  Hindu  family  in  1908    and  do  so 
even  now. 

•  It  has  been  argued  on  behalf  of  the  appel- 
lant that  the  view  of  the  lower  Appellate 
Court  is  that  in  order  to  make  the  rule  laid 
down  by  their  Lordships  of  the  Privy  Council 
in  the  case  of  Girdharee  Lai  v.  Kantoo  Lai 
(1)  applicable,  it  is  not  necessary  that  actual 
possession  should  have  been  taken  by  the 
purchaser  third  party  and  that  all  that  is 
necessary  is  that  the  property  should  have 
passed  out  of  the  family  under  a  sale  in 
execution  of  a  decree.  This  contention  may 
have  some  force,  but  the  plaintiff  cannot 
succeed  in  the  present  case  because  of  the 
finding  that  the  nephew  Ram  Prasad  is 
also  joint  with  Jagannath.  In  all  the  cases 
wh$re  it  has  been ,  held  that  where  property 
has  passed  out  of  the  family  in  execution 
ol  a  decree  and  rights  of  a  third  party  have 
come  in,  the  sale  cannot  be  set  aside  unless 
it  is  established  that  the  debt  was  tainted 
with  illegality  or  immorality,  the  persons 
who  were  challenging  the  transaction  were 

(1)  1  I.  A.  321;  14  B.  L.  R,  187;  *2  W.  R,  56;  3  Bar 
P,  0.  J.  380  (P.  C,), 


sons  or  grandsons  of   the  transferor.    It    33 
only  when  the  transfer  has  been  made  by  a 
father  or  giandfather  that  the  question  of 
the  debt  having  been  tainted  with  immora- 
lity or  illegality  can  arise.    No    such  con- 
sideration   arises    when    the  transfer   has 
been  made  by  an  uncle  and  a  mere  manager 
of  a  joint  Hindu    family.    In    such    ca&es 
the  transfer  unless  it  is  supported  by  legal 
necessity  cannot  be  upheld.    The  learned 
Vakil  for  the  appellant  has  referred  me  to 
the  eases  of  Ram  Chandra  v.   Muhammad 
Nur    (2),   Jadubir  Pande    v.  Gajadhar   (3) 
and   Gajadhar  Pande  v.  Jadubir   Pande   (4) 
but  in  all  these  three  cases   the  persons  who 
wanted  to  challenge  the  alienations  were 
sons  of  the  transferors.    I  am,  therefore,  of 
opinion  that  on  the  ground  last  mention- 
ed the  plaintiff   cannot  succeed.    The  find- 
ing that  there  was  no  legal  necessity  for 
the    mortgage  of  1908  is  fatal  to    this  case. 
When  the  plea  of  want    of  legal   necessity 
laised  by  one  of  the  contesting  defendants 
succeeds   the    whole  suit    must  stand   dis- 
missed.   The  appeal  is  accordingly  dismiss- 
ed with  costs  including  fees  in  this  Court 
on  the  higher  scale. 

N.  H.  Appeal  dismissed. 

(2)  73  Ind  Cas  G56,  21  A  L.  J.4S5,  45  A  515,  (1923) 
A  I.  R  CA  )  591 

(3)  75  Ind  Cas.  7*5,  21  A.  L.  J  809,  (1924)  A.  I  R, 
(A  )  169;  L  R  5  A.  53  Civ 

(4)  85  Ind.  Cas.  31,  22  A.  L  J  980;  L.  R.  5  A.  780 
Civ  ;  (1925)  A.  I.  R.  (A.)  180,  47  A.  122. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1576  OF  1924. 

January  "20,  Iy2&. 

Present:— Mr.  Justice  Martineau. 

BISHEN  81NQH  AND  OTHERS— DEFENDANTS 

— APPELLANTS^ 

versus 

WASAWA  SINGH  AND  01  HERS— PLAINTIFFS 
— RESPONDENTS. 

Decree,  setting  aside  of — Fraud  and  mistake— Fraud t 
nature  of — Nature  of  error. 

In  a  suit  to  obtain  the  reversal,  on  the  ground  of 
fraud,  of  a  judgment  given  in  a  former  case,  it  is  not 
sufficient  for  the  plaintiff  to  prove  constiuctive  fraud 
but  he  must  prove  actual  positive  fraud,  a  meditated 
and  intentional  contrivance  to  keep  the  parties  and 
the  Court  m  ignorance  of  the  real  facts  of  the  case  and 
the  obtaining  of  that  decree  by  that  contrivance, 
[p.  318,  col.  2.] 

Nanda  Kumar  v.  Ram  Jiban,  23  Jnd.  Cas.  337-  41 
C.  990;  18  0.  W.  N.  681;  19  C.  L.  J.  437,  Sarup 
Narain  r.  Sheo  Shankar  Lai,  42  Ind,  Cas.  416,  4  0,  L, 


313 


BISiHtf  SINGH  V.  WA9AWA  SINGH. 


[92 1.  0. 1926] 


J.  522  and  Sreenath  Das  v.  Ghanashyam  Naik,  46  Ind. 
Gas  531;  3  P.  L  J.  465,  followed. 

A  suit  to  rectify  the  error  or  mistake  upon  which, 
a  decree  is  founded  lies  when  the  error  or  mistake  has 
bean  made  in  drawing  up  of  the  decree,  but  not 
when  the  mistake  ia  nut  in  the  judgment  or  decree 
but  in  a  document  forming  part  of  the  evidence  on 
which  the  judgment  is  based,  [p  318,  col.  2] 

Appeal  innn  a  decree  of  the  Additional 
District  Judge,  Amritsar,  dated  the  19th 
March  1924,  reversing  that  of  the  Third 
Class, Sub- Judge,  Amritsar,  dated  the  20th 
February  1923. 

Lala  Sahib  Dayal,  for  the  Appellants. 

Mr.  Dev  Raj  Saivhney,  for  the  Respond- 
ents. 

JUDGMENT.  -Hira  Singh,  a  collateral 
of  the  present  plaintiffs,  was  an  occupancy 
tenant  of  the  land  in  suit.  After  his 
death  the  present  defendants,  who  are  the 
landlord,  obtained  a  decree  against  the  pre- 
sent plaintiffs  for  possession  of  the  land, 
the  Court  finding  that  the  latter  had  failed 
to  prove  that  the  land  had  been  in  the  occu- 
pation of  their  and  Hira  Singh's  common 
ancestor.  In  the  present  case  the  plaintiffs 
sue  for  possession  on  the  ground  that  the 
former  judgment  was  obtained  against  them 
by  fraud  or  mistake,  the  land  having  been 
entered  in  the  Settlement  Record  of  i865 
under  the  wrong  khasra  numbers. 
.  The  suit  was  dismissed  by  the  first 
Court,  which  found  that,  though  a  mistake 
had  been  made  in  the  Revenue  Records,  no 
fraud  on  the  pait  of  the  present  defendants 
had  been  proved,  and  that  the  ;-. -:j^"  L 
in  the  former  case  was,  therefore,  •  ,  „ 
cata  and  the  plaintiffs  had  no  cause  of  ac- 
tion. 

On  appeal  the  District  Judge,  f!ol.  Nicholas, 
held  that  the  plaintiffs  were  entitled  to 
maintain,  the  suit  as  the  point  in  isbue  had 
not  been  before  the  Court  in  the  former 
caset  and  he  remanded  the  suit  to  the 
Trial  Court  for  disposal  on  the  remaining 
issues.  The  suit  was  again  dismissed  by 
the  Subordinate  Judge  on  the  ground  that 
no  fraud  had  been  proved.  The  plaintiffs 
appealed,  and  the  Additional  Judge,  Lala 
Chuni  Lai,  has  accepted  their  appeal  and 
passed  a  decree  in  their  favour,  holding  (1) 
that  a  mistake  had  been  made  in  the  khasra 
numbers  in  the  Settlement  Record  of  1865, 
(2)  that  the  mistake  was  a  constructive 
fraud  on  the  Courts,  and  (3)  that  Col.  Nicholas 
had  by  his  judgment  decided  that  the  mis- 
take was  tantamount  to  constructive  fraud, 
and  that  that  judgment  not  having  been 
appealed  against  had  become  final.  The 


defendants  have  preferred  a  second  appeal 
to  this  Court. 

I  am  nimble  to  agree  with  the  lower 
Appellate  Court  that  Col:  Nicholas  give 
any  decision  on  the  question  of  fraud,  He 
decided  only  that  the  judgment  in  tne 
former  suit  was  not  a  bar  to  the  present 
suit,  as  the  points  in  issue  in  the  two  suits 
were  not  the  same. 

Further,  in  order  to  obtain  a  reversal  of  the 
judgment  given  in  the  former  case  it  is  not 
sufficient  for  the  plaintiffs  to  proveconsl.ruc- 
tive  fraud,  but  they  must  prove  actual  posi- 
tive fraud,  a  meditated  and  intentional  con- 
trivance to  keep  the  parties  and  the  Court 
in  ignorance  of  the  real  facts  of  the  case 
and  the  obtaining  of  that  decree  by  that  con- 
trivance, as  was  held  in  Nanda  Kumar  v. 
Ram  Jiban  (1).  See  also  Sarup  Narain  v. 
Sheo  Shankar  Lai  (2,  and  Kerc  on  Fraud 
and  Mistake,  .">th  Edition,  page  344. 

It  has  also  b?en  observe!  by  the  learned 
Additional  Judge  that  where  a  decree  had 
been  procured  by  some  grave  mistake  so  as 
to  vitiate  the  whole  character  oH  the  decree 
and  to  permit  its  execution  would  amount 
to  an  abuse,  the  Court  has  power  to  rectify 
the  error  or  mistake  upon  which  the  decree 
is  founded  in  an  independent  suit.  Sree- 
nath  Das  v.  Ghanashyam  Naik  (3)  is  an  au- 
thority for  this  proposition,  but  that  was  a 
case  in  which  a  mistake  had  been  made 
in  the  drawing  up  of  a  decree,  and  the  pro- 
position is  not  applicable  to  the  case  of  a 
mistake  contained*  not  in  the  judgment  or 
decree,  but  in  a  document  forming  part  of 
the  evidence  on  which  the  judgment  is  bas- 
ed. 

As  no  actual  fraud  on  the  part  of  the  de- 
fendants has  been  proved,  the  suit  must 
fail,  and  I  accordingly  accept  the  appeal, 
reverse  the  decree  of  the  lower  Appellate 
Court,  and  restore  the  decree  of  the  first 
Court  dismissing  the  suit,  but  in  view  of 
the  fact  that  the  decision  in  the  former  case 
was  due  to  a  mistake  in  the  entries  of  the 
Settlement  Record  of  18b5, 1  direct  that  the 
parties  shall  bear  their  own  costs  through- 
out. 

N.  H.  Appeal  accepted. 

(1)  23  Ind,  Gas.  337;  41  0,  990;  18  0,-W.  N,  681;  19 
0.  L.  J.  457. 

(2)  42  Ind.  Gas,  416;  4  0.  L.  J.  522. 
(3;  46  Ind.  Gas.  534;  3  P.  L.  J,  465. 


[95 1  0. 1926]         &AHZOR  SIN«H  v.  SECRETARY  OP  STATE  FOR 


LAHORE  HIGH  COURT, 

FIRST  CIVIL  APPEAL  No  25  19  OF  1921. 

December  2  J,  1924. 
Present:  —  Mr.  Justice  Jai  Lai  and 

Mr.  Justice  Abdul  Raoof. 

Kanwar  RANZOLl  SINGH—  OBJECTOR- 

APPELLANT 


THE  SECRETARY  OF  STATE  FOR  INDIA 
IN  COUNCIL-OPPOSITE  PAKTY— 
RESPONDENT 

Civil  Procedure  Code  (Act  V  of  1908),  s  U0~~ 
Limitation  Act  (IX  of  1908),  s.  5~  Insufficient  Court- 
fee  on  appeal  —  Bona  Me  mistake—  Intension  of  time  — 
Evidence  Act  (I  of  1S72),  s  23—  Appeal  against 
award  —  Land  acquisition  proceedings—  Price  of  acquir- 
ed property,  determination  of  —  Private  offer  by  Gov- 
ernment, whether  admissible. 

An  appellant  who  is  misled  by  an  error  of  the 
Court  and  the  insufficiency  of  the  Court-fee  original- 
ly pttid  by  him  is  due  to  a  bona  fide  mistake  on  his 
part,  is  entitled  to  the  benefit  of  s  149  of  the  C  H  C 
and  s  5  of  the  Limitation  Act.  [p  319,  col  2J 

Wh^re  after  iv  notification  has  been  issued  for 
acquisition  of  a  particular  property,  negotiations  me 
started  by  the  Government  with  the  owner  of  the 
pioperty  on  the  question  of  price,  and  an  offer  pur- 
porting to  he  without  prejudice  is  made  to  him,  the 
evidence  of  the  offer  for  purposes  of  determining 
value  in  Court,  in  an  appeal  by  the  owner  against 
the  award  of  the  District  Judge,  is  not  admissible  as 
it  must  be  inferred  that  the  parties  agreed  together 
that  the  evidence  of  the  ofYer  should  not  be  given  in 
Cgurt.  [p  320,  col.  1  ] 

Appeal  from  a  decree  of  the  District 
Judge,  Ambala»  dated  the  7th  June  192L 

Bakhshi  Tek  Cfiand  and  Lala  Mool  Chand> 
R.  S.,  for  the  Appellant. 

Kanwar  Da  lip  Singh  >  Government  Advo- 
cate, fqr  Lala  Mehr  Chand  Mahajan,  for  the 
Eespondent. 

-JUDGMENT.—  This  is  an  appeal  by 
the  owner,  Kanwar  Ranzor  Singh,  from  the 
award  dated  the  7th  of  June  1951  made  by 
the  District  Judge  of  Ambala  under  the 
Land  Acquisition  Act.  By  Notification 
No.  2588  G.  dated  the  20th  of  May  liH9  the 
Punjab  Government  declared  its  intention 
of  acquiring  the  Moroyu  Estate  situated  in 
Simla  for  a  public  purpose,  namely,  resi- 
dences for  public  servants.  The  Collector 
by  his  award,  dated  the  20th  of  November 
1920,  awarded  Rs.  29,120-0-0  as  the  market 
value  of  the  estate,  and  Rs.  4,368-0  0  the 
usual  allowance  of  15  per  cent,  for  com- 
pulsory acquisition;  the  total  amount  award- 
ed was  Rs.  33,488  0  0.  The  owner  having 
objected  to  the  award  the  matter  was  referr- 
ed to  the  District  Judge  of  Ambala  for 
determination  of  the  market  value  of  the 
property  acquired,  but  the  learned  Judge 


31f 

declined  to  enhance  the  award  of  the  Col- 
lector. 

At  the  commencement  of  the  hearing  the 
learned  Government  Advocate  took  a 
preliminary  objection  that  the  appeal  ^as 
harred  by  limitation.  It  was  filed  on  the 
12th  of  October  192L.  That  was  the  first 
day  on  which  the  High  Couit  opened  after 
the  long  vacation  which  began  on  the  29th 
of  July  Itt21.  The  memorandum  <;f  appeal 
was  leturned  to  the  Counsel  for  the  appel- 
lant on  the  4th  of  November  1921  on  the 
ground  that  the  Court- fee  paid  \\as  insuffi- 
cient. It  was  re-filed  by  the  Counsel  on  the 
7th  of  November  1921  with  the  following 
endorsement:  — 

"The  Court- fee  originally  paid  by  the  ap- 
pellant is  correct.  But  to  avoid  further 
loss  of  time,  the  deficiency  is  made  up  and 
additional  Court-fee  is  paid  " 

In  our  opinion  the  Court-fee  oiigiually 
paid  by  the  appellant  was  inefficient;  Hit 
it  appears  that  the  Counsel  was  misled  l.y 
the  award  of  the  teamed  District  Judge,  the 
la;-'  ;  •  ..•  !,  of  which  runs  as  follows: — 
"The  ohjector  did  not  state  in  his  written 
application  the  amount  which  he  claimed 
but  his  Vakil  stated  before  my  predecessor 
that  he  claimed  Rs.  70,852*0  0.  I,  therefoie, 
allow  the  Secretary  of  State  his  costs  on  the 
difference  "between  this  amount  and  the 
amount  awarded  by  the  Collector,  viz.,  on 
(Rs.  70,852-0-0  minus  Rs.  33,488-0-0)- 
Rs.  37,364-0-0. 

The  Court-fee  originally  paid  was  on 
Rs.  37,364-0  0.  As  a  fact  it  should  have 
been  on  Rs.  70,852-0-0 minus Ra.  29,120  00- 
Rs.  41,732-0-0.  An  appeal  filed  on  the  7th  of 
November  would  be  barred  by  limitation,  but 
as  we  hold  that  the  appellant  \\as  misled  by 
an  error  of  the  District  Jud^  and  the  insuffi- 
ciency in  the  Court  fee  oiiginally  paid  was 
due  to  a  bona  fide  mistake  on  his  part  he  is 
entitled  to  the  benefit  of  s.  149  of  the  C.  P. 
C,  and  s.  5  of  the  Indian  Limitation  Act. 
We,  therefore,  overrule  the  objection  of  the 
learned  Government  Advocate. 

The  only  point  involved  on  the  merits  of 
this  appeal  is  the  market  value  of  the  pro- 
perty acquired.  The  learned  Counsel  for 
the  appellant  has  relied  upon  the  following 
evidence  in  support  of  his  appeal;— 

(1)  Certain  offers  made  by  the  Superin- 
tending Enginer,  Imperial  Circle,   Simla, 
but  declined  by  the  owner. 

(2)  Evidence   of   certain  witnesses  who 
give  their  opinion  as  to  the   value  of  the 
property, 


ssor 

(3)  The 'evidence 


KAN20R  SINGH  t>.  SECkfif  A*f  OP  STAffi 


of  Mr.  Qoldstine,  an 
Engineer  of  Simla,  who  prepared  an  estimate 
of  the  value  of  the  building  and  the  laud, 
and 

(4)  The  prices  realized  on  sales  of  other  ' 
properties  in  Simla, 

As  regards  (1)  it  appears  that  after  the 
issue  of  the  Notification  the  Superintend- 
ing Engineer  started  negotiations  with  the 
owner   with  a  view  to   settle  the  market 
value  of  the  property  in  order  to    avoid  the 
contingency  of  going  to  Court  and  in    the 
coarse  of  such  negotiations   he  made  offers 
of  Bs.  40,00 J-0  0    to  Rs.  4?,500  0-0  to  the 
owner  which   were   declined.     Two   of  the 
offers  are  alleged  to  be  oral  ones  made   by 
Mr.  Aikeman,  Superintending  Engineer,  and 
the  last  one  was  made  in  writing  by  Mr. 
Hope,  Superintending  Engineer,  by    means 
of  his  letter  dated  the  25th  of    February 
1920     In    this     letter    Mr     Hope    clearly 
stated  that  the  offer  was  being  made  with- 
out prejudice.    The  learned  District  Judge 
held  that  evidence  as  to  these  offers   was 
inadmissible  under  the  provisions  of  s,  23 
of  the  Indian  Evidence  Act.    The  learned 
Counsel  for    the    appellant  has  contended 
before  us  that  s.  23   does  not  apply  to  the 
facts  of  this  case.     He    argued    that    the 
section  applies  only  when  there  is  a  dispute 
between  the  parties  and  an  offer  is  made  to 
settle  such  a  dispute.    It  was    contended 
by  the  learned  Counsel  that  after  the  noti- 
fication there  was  no  occasion  for  any  nego- 
tiations between  the  Government  and  the 
owner  as  it  was  not  within    the  power  of 
the  latter^  to  '  refuse  to    sell  the  property. 
We    consider,    however,    that  it  was  still 
open  to  the  owner  to  take  the  matter  to 
the  Civil  Courts  on  the  question  of  amount 
of  compensation,  and  it  was  in  order   to 
avoid  this   contingency    that    negotiations 
were  started  by  the  Superintending  Engi- 
neers.   In  our  opinion  it  is    clearly  estab- 
lished that  the  offers  were  made  by  these 
Engineers  under  circumstances  from  which 
the  Court  ought    to  infer  that  the  parties 
agreed  together  that  the  evidence  of  the 
offers  should  not  be  given    and  agreeing 
with    the  Court  below,  we  hold  that  the 
evidence  as  to  these  offers  is  not  admissble. 
Regarding  the  evidence  of  witnesses  who 
give  their  opinion  as  to  the  market  value 
of  the  Moroyu  Estate,  we  observe  'that  these 
witnesses  have    given  no  reasons  to  show 
that  they  were  in  a  position  to  judge  of 
the  market  value  of  this  estate.    Ordinarily 
such   evidence    is   seldom  accepted  as   a 


INDIA.         [92  I.  a  1926] 

satisfactory  guide  to  determine  the  market 
value  of  property,  but  in  this  case  it  is 
almost  worthless. 

As  regards  (3)  Mr.  Goldstine  has  not  pro- 
duced any  detailed  estimate  of  his  valuation. 
All  that  we  have  on  the  record  is  a  letter 
signed  by  him  adressed  to  the  owner  in 
which  he  stated  that  in  his  opinion  the 
value  of  the  buildings  on  the  es  ate  was 
Rs.  49,^52  and  the  value  of  the  site  was 
Rs.  21,000,  making  a  total  of  Rs.  70,£52, 
In  the  absence  of  a  detailed  estimate  it  is 
not  possible  to  check  the  correctness  of  the 
figures  supplied  by  the  witnesses  We 
cannot,  therefore,  accept  this  evidence. 

(4)  The  Collector  awarded  16  times  the 
net  rental  f  ]\  •--.!•  jr  :  -/o  judgments  dated 
the  26th  o:'  A::  i  iJI-  ot  the  Chief  Court 
of  the  Punjab.  The  notifications  in  those 
cases  were  issued  in  1916  and.  the  proper- 
ties then  acquired  had  changed  bonds 
shortly,  before  the  issue  of  the'  notifications 
and,  therefore,  the  price  then  fetched  was 
considered  by  the  Chief  Court  as  the  best 
guide  in  <;<  lonnii.m^  their  respective 
market  values.  This  properly  has  not 
changed  bonds  for  a  considerable  time.  It 
is  situated  about  220  yards  from  the  Vic- 
regal  Lodge  and  has  always  been  occupied 
by  high  Government  Officials.  At  the  time 
of  the  acquibition  it  was  occupied  by  the 
Hon'ble  Mr.  Sharp,  {Secretary  to  the  Govern- 
ment of  India.  It  has  a  tennis  court  and 
a  large  compound.  Its  situation  and  posi- 
tion are  both  stated  to  be  very  good.  Its 
area  is  2'15  acres.  All  these  factors  contri- 
bute materially  to  appreciate  the  market 
value  of  property.  The  appellants'  wit- 
nesses have  mentioned  certain  sales  of  pro- 
perties alleged  to  be  inferior  to  the  present 
one  for  amounts  larger  than  the  market 
value  awarded  in  this  case;  but  we  find 
that  the  evidence  is  mostly  hearsay  and 
cannot,  therefore,  be  admitted.  Some  of 
the  witnesses  stated  that  the  market  value 
of  house  property  in  Simla  was  20  times 
the  net  rental  while  one  thought  that  it 
was  so  much  as  22  times  the  gross  rental. 
It  is  impossible  to  act  on  such  evidence 
unsupported  by  any  instances,  and  there  is 
a  vast  difference  between  20  times  the  net 
rental  and  22  times  the  gross  rental.  There 
is  no  evidence  on  the  record  that  the 
Moroyu  Estate  has  any  potential  value  be- 
yond the  income  from  its  rent.  Moreover, 
the  house  is  old.  Having,  however,  regard 
to  the  fact  that  16  times  the  net  rental  waa 
awarded  in  one  case  in  1916  and  Ijj  times 


[92  I.  0.  1926J  NARASIMHAM 

in  the  other,  and  that  this  property  has 
certain  undoubted  advantages,  we  consider 
that  in  the  absence  of  any  evidence  to  the 
contrary  18  times  the  net  rent  will  be  its 
fair  market  value.  Mr.  Goldstine  states 
that  the  owners  of  old  houses  in  Simla  get 
about  i>  or  5j  per  cent  interest  in  house 
property.  At  5  per  cent,  the  market  value 
would  be  20  times  the  net  rental,  and  at  5 
per  cent,  it  will  be  about  18  times. 

The  actual  rent  of  the  house  at  the  time 
of  the  acquisition,  was  Rs.  2,600.  It  is 
claimed  on  behalf  of  the  appellant  that 
the  actual  rent  is  low  and  that  the  proper 
rent  of  the  house  is  somewhere  between 
R3.  3,500  and  Rs.  4,000.  We  do  not  think 
that  there  is  any  material  on  the  record 
to  justify  our  assuming  that  Rs.  2,600  is  a 
low  rent.  In  order  to  calculate  the  net  rent 
of  a  house  the  usual  rule  in  Simla  appears 
to  be  to  deduct  30  per  cent,  out  of  the 
gross  rent,  being  10  per  cent,  on  account 
of  furniture,  10  per  cent,  on  account  of  re- 
pairs and  10  per  cent,  on  account  of  Muni- 
cipal taxes.  The  net  rent  of  the  Moryu 
estate  as  found  by  the  Collector  ia 
Rs.  1,820  and  this  figure  multiplied  by  18 
comes  Rs.  32,760.  The  usual  allowance  of 
15  per  cent,  on  this  figure  comes  to 
Rs.  4,914. 

\Ye  accept  the  appeal  so  as  to  enhance 
the  award  to  Rs.  32,760  as  a  market  value 
and  adding  Es.  4,914  the  usual  15  per  cent, 
the  total  award  will  be  Rs.  37,674.  Under 
the  peculiar  circumstances  of  the  case  we 
leave  the  parties  to  bear  their  own  costs 
throughout. 


N.  H. 


Appeal  accepted. 


MADRAS  HIGH   COURT. 

SECOND  CIVIL  APPEAL  No.  1574  OF  1922. 

April  30,  1925. 

Present:— Mr.  Justice  Phillips. 

DEVAQUPTAPU  NARASIMHAM  AND 

OTHERS — PLAINTIFFS — APPELLANTS 

versus 
DEVAGUPTAPU  CHENDRAMMA 

AND  OTHERS— DEFEND  ANTS  NOS.  1  TO  6, 

8,  10  TO  12 — RESPONDENTS. 

Inam  grant— Grant  "to  representatives  and  assigns' 
•—Death  of  grantee  before  date  of  grant — Grant,  whe- 
ther enures  to  heirs  of  grantee — Board's  Standing 
Order  52  (2). 

An  inam  title-deed  issued  by  Government  ran  as 
follows :—  "The  inam  is  now  confirmed  to  you,  your 
f  epreaeutatives  and  assigns,  to  hoM  or  dispose  of  as 


l\    CHEND3AMMA.  321 

you  or  they  think  proper".  The  grantee  was  dead,on 
thu  date  of  grant,  and  the  question  ivas  whether  the 
grant  enured  for  the  benefit  of  the  lieirs  of  the 
grantee  : 

Held,  that  having  regard  to  the  Board's  Standing 
Order  52  (2),  the  words  "representatives  and  assigns'* 
should  not  be  interpreted  as  mere  words  of  limitation 
but  as  effective  to  secure  the  grant  to  the  heirs  of 
the  deceased  grantee,  [p  322,  col.  l.J 

Second  appeal  against  a  decree  of  the 
Court  of  the  Additional  Subordinate  Judge4 
Vizagapatam,  in  A.  8.  No.  112  of  19*2  (A.  S. 
No.  309  of  1920,  on  the  file  of  the  District 
Court  and  A,  8.  No.  161  of  1920  of  the  Sub- 
Court),  preferred  against  that  of  the  Court 
of  the  District  Munsif,  Vizagapatam,  in  O. 
S.  No.  83  of  iyi8. 

Mr.  C.  Rama  Rao,  for  the  Appellants. 

Mr.  Y.  Suryanarayana,  for  the  Respond- 
ents, 

JUDGMENT.— The  plaintiffs  ar*  thd 
nearest  heirs  of  one  Venkataraju  in  whose 
favour  (with  others)  three  inam  title-deeds 
were  issued  in  1906  and  1907.  Both  the 
lower  Courts  have  found  that  as  Venkata- 
raju was  dead  on  the  day  on  which  thesd 
title-deeds  were  issued,  he  obtained  no  right 
to  the  suit  property,  and,  therefore,  the 
plaintiffs  as  his  heirs  have  got  no  right. 

The  title-deed  runs  as  follows:  "Title- 
deed  granted  to  (1)  Ddvumipiaim  Subbara- 
yudu,  (2)  Devaguptapu  Chendramma,  (3) 
Devaguptapu  Venkatajaru  and  four  others 
as  per  register;"  and  it  recites, 

"The  inam  is  now  confirmed  to  you,  your 
representatives  and  assigns,  to  hold  or 
dispose  of  as  you  or  they  think  proper." 

The  question  at  issue  is  whether  this  is  a 
grant  to  Venkataraju  and  his  representa- 
tives and  assigns,  or  whether  these  words 
are  words  of  mere  limitation  as  contended 
for  by  the  respondent*  The  treatment  of 
such  words  as  being  words  of  limitation  ia 
a  legal  technicality  and  the  question  is> 
whether  the  Government  in  issuing  this 
deed  intended  to  adopt  this  technicality  or 
whether  they  intended  to  use  the  words  in 
their  ordinary  meaning.  The  words  are,  no 
doubt,  ambiguous;  therefore,  I  think,  it  ia 
relevant  to  refer  to  the  Board's  Standing 
Order  52  (2)  which  deals  with  this  ques- 
tion. There  it  is  laid  down, 

"In  case  of  the  death  of  the  holder  of  an 
enfranchised  inam  before  the  actual  delivery 
to  him  of  the  title-deed,  the  deed  should,  in 
the  first  place,  be  entrusted  to  the  Revenue 
Authorities  for  safe  custody.  The  Collector 
should  make  inquiry  as  to  who  is  the  party 
entitled,  as  heir  of  the  deceased,  to  receivo 


PONJAB  COMMERCIAL  SYNDICATE  V.  PCftJAB  CO  OPflRATlVfl  BANK  LTD.    [92  I.  C. 


the  deed,  and  is  enjoined  to  hand  it  over, 
exactly  as  received,  to  the  heir  of  the  deceas- 
ed." If  these  words  were  words  of  mere  limi- 
tation, the  grant  to  the  deceased  would  fail, 
and  if  it  was  intended  to  give  a  fresh  grant 
to  the  heirs,  it  would  be  necessary  to  issue 
&  grant  afresh  in  their  name.  Inasmuch 
as  the  Government  have  declared  that  that 
is  not  the  procedure  to  be  adopted,  I  think 
it  is  clear  that  these  words  are  not  mere 
words  of  limitation  but  are  effective  to 
secure  the  grant  to  the  heirs  of  the  deceased 
grantee,  which  is  the  intention  of  Govern- 
ment as  expressed  in  the  above  Board's 
Standing  Order.  That  being  so,  the  plaint- 
iffs are  entitled  to  the  properties  covered 
by  the  grant, 

A  question  is  raised  by  the  respondent  as 
to  the  non-joinder  of  parties,  but  under 
O.  i;  r.  13,  0.  P.  C.,  this  should  have  been 
raised  in  the  Trial  Court  and  must  now  be 
deemed  to  have  been  waived. 

As  the  lower  Appellate  Court  has  not 
recorded  any  finding  on  the  other  issues  in 
this  suit,  this  decree  must  be  set  aside  and 
the  appeal  remanded  for  disposal  on  the 
other  issues.  Costs  will  abide  the  result. 

Stamp  fee  on  the  appeal  memo,  will  be 
refunded  to  the  appellant. 


V.  K  V, 

N.  H. 


Appeal  remanded. 


HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  2o46  OF  1821. 

July  4,  1925. 
Present :— Mr.  Justice  Abdul  Raoof  and 

ftfr.  Justice  Addison 
PUNJAB  COMMERCIAL  SYNDICATE 

AND   ANOTB^tt — PLAlMTIFFS — APPELLANTS 

versus 
PUNJAB  CO-OPERATIVE  BANK,  LTD, 

IN  LIQUIDATION   AND  OTHEfcS — 

DEFENDANTS — RBSPONDIN  TS. 

Fraud— Particulars  ~-Ex  parte  decree,  iuit  to  set 
aside—Fraud,  proof  of. 

When  fraud  is  charged  against  a  party,  the  person 
pleading  the  fraud  must  set  forth  the  particulars  of 
the  fraud  which  he  alleges,  [p.  324,  col.  2.] 

An  ex  pane  decree  cannot  be  re-opened  except  *on 
the  ground  of  fraud  as  an  extrinsic  collateral  fact 
vitiating  the  proceedings  in  which  tht  decree  was 
obtained.  It  is  not  sufficient  to  allege  that  it  was  ob- 
tained on  a  false  claim,  [p.  325,  col.  2.] 

an  es  partt  decree  can  be  mated  oa  the 


ground  of  fraud,  it  must  be  established  that  the  decree 
was  the  result  of  fraud  directed  against  the  person  who 
seeks  to  set  it  aside,  [p.  326,  col  1.] 

First  appeal  from  a  decree  of  the  Senior 
Subordinate  Judge,  Rawalpindi,  dated  the 
2nd  July  1921, 

Dr.  Nand  La  I  and  Mr.  Amolak  Ram,  for 
the  Appellants. 

Messrs.  M.  S.  Bhagat  and  Amar  Nath 
Chopra,  for  the  Respondents. 

JUDGMENT.— On  the  4th  October  1917 
the  Punjab  Co-operative  Bank  in  liquida- 
tion filed  a  suit  for  Rs.  27,y50-l5-y  against 
Baldeo  Das  and  his  three  brothers.    It  was 
alleged  that  the  defendants  and  their  father, 
Kishan   Chand,  who  died  about  1909,  con- 
stituted a  joint  Hindu  family,  which  also 
carried  on  contract  work  and  a  brick  kiln 
business  under  the  name  of  Kishan  Chand 
and  sons.     On  the  father's  death  the  eldest 
eon,  Baldeo   Das,  became  the  manager  of 
the  joint  family  and  the  business    carried 
on  by  it  and  in  that  capacity  executed  on 
the  llth  October  lall  two  promissory  notes 
in  favour  of  the  plaintiff   Bank,  one  for 
Rs.  16,300  with  interest  at  9  per  cent,  per 
annum  and  one  for  Rs.  3,700  with  interest 
at   11  annas  per  cent,  per-mensem,  and  for 
the  second  promissory  note  (para.  4  of  the 
plaint)  deposited  two  sale-deeds  of  land  by 
way  of   equitable  mortgage.    In  para.  10 
of  the  plaint,  however,  it  was  prayed  that 
a  decree  for  the  full  sum  claimed  should 
be  passed  against  the  mortgaged  property 
as  well  as  against  the  other  property   of 
the  defendants  and  against  them  person- 
ally.   There  was   thus  a  contradiction  be- 
tween the  two   paragraphs  of  the  plaint, 
quoted  above,  in  one  place  the  allegation 
being  that  there  was  an  equitable  mort- 
gage of  land  only  as  regards  the  second 
and  smaller  promissory  note,  while  at  the 
end  the  claim  was  that  the  total  amount 
sued  for  should  be  a  charge  on  the  land 
in  question.    During  the  pendency  of  the 
suit,    Thakar  Das,    who  used   to    be    the 
manager  of  the  Bank  before  it  went  into 
liquidation,  was  examined  as  P.  W.   No.  3 
on  the  7th  March  1818.    He  deposed  that 
the  title-deeds  were    handed  over  to  the 
Bank  when  Rs.  2,000  were  given  to  Baldeo 
Das,  on  the  21st  October  1*08,  long  before 
the  promissory  notes  were  taken.    At  that 
time  the  total  advances  made  amounted  to 
Re.  12,200.    He  further  Raid  that  the  title- 
deeds  were  to  be  security  for  the  whole 
loan  advanced.    The  words  "up  to  date*' 
in  the  English  record  after  "advance^"  49 


[92 1  0.  1926]     PUNJAB  COMMERCIAL  SYNDICATE  0.  PUNJAB  00-OPBRATIVE  BANK  LTD,  323 


not  occur  in  the  vernacular  record.  The 
proceedings  were  ex  parte  throughout 
against  Baldeo  Das,  but  the  suit  was  con- 
tested by  his  three  brothers,  who  finally 
entered  into  a  compromise  with  the  plaintiff 
Bank  on  the  7th  April  1919.  By  this  com- 
promise the  Bank  gave  up  its  claim  against 
the  three  brothers  while  the  brothers  ad- 
mitted that  the  decretal  amount  would  be 
a  charge  on  the  17  kanals  4  marlas  of  land 
in  question  which  was  Baldeo  Das's  self- 
acquired  property  and  which  was  under 
equitable  mortgage  with  the  Bank  and  that 
his  other  self-acquired  property  including  his 
shares  in  the  plaintiff  Bank  and  his  one- 
fourth  share  of  the  ancestral  property  would 
also  be  liable.  As  against  this,  the  plaintiff 
Bank  admitted  that  the  three  brothers 
were  not  joint  with  Baldeo  Das,  and  that 
their  share  in  the  ancestral  property  would, 
therefore,  not  be  liable  and  that  the  suit 
as  against  them  should  be  dismissed.  After 
this  compromise,  a  decree  was  passed  ex 
parte  against  Baldeo  Das,  and  by  that  decree 
a  charge  was  created  on  the  land  in  ques- 
tion, As  the  presumption  was  that  all  four 
brothers  were  joint,  it  is  obvious  that  prima 
facie  the  compromise  was  to  the  advant- 
age of  all  the  parties. 

In  the  meantime,  the  Punjab  Commercial 
Syndicate  and  Krishan  Lai  filed  a  suit  on 
the  6th  May  19 18  against  Baldeo  Das 
and  his  three  brothers  for  Rs.  27,000. 
The  dealings  in  this  case  also  had  been 
by  Baldeo  Das  who  did  not  appear,  but 
the  suit  was  contested  by  his  three  brothers. 
The  Syndicate  compromised  with  them  on 
the  18th  July  191tf  in  exactly  similar  terms  to 
those  entered  into  by  them  with  the  Punjab 
Co-operative  Bank  except  that  there  was 
no  charge  upon  any  land,  as  there  was  no 
mortgage.  The  three  brothers  admitted  that 
Baldeo  Das's  one-fourth  share  of  the  an- 
cestral property  and  his  self-acquired  pro- 
perty shoufd  be  liable  while  a  list  of  the 
known  ancestral  property  was  given.  In 
return  for  this  the  Syndicate  released  the 
three  brothers  and  their  shares  of  the  an- 
cestral property  from  liability  and  obtain- 
ed an  ex  parte  decree  against  Baldeo  Das 
only. 

Then  on  the  24th  February  l»20f  the 
above  named  Syndicate  and  Krishan  Lai 
sued  the  above-named  Bank  along  with 
Baldeo  Das  and  his  three  brothers  for  a 
declaration  that  the  words  "against  the 
land  mortgaged  measuring  about  17  kanals" 
in  the  decree  obtained  by  the  Bank  in 


accordance  with  the  compromise  of  the 
7th  April  iiJiO  should  not  affect  the  Syndi- 
cate, that  was  to  say,  that  the  said  land 
was  not  mortgaged  with  the  Bank  for  the 
amount  of  their  decree,  and  that  the 
Syndicate  could  also  execute  its  decree 
against  the  said  land.  It  was  mentioned  in 
the  plaint  that  according  to  para.  4  of  the 
Bank's  plaint  (as  already  described)  it  was 
only  alleged  that  there  was  an  equitable 
mortgage  of  the  land  as  regards  the  smaller 
promissory  note  of  Rs.  3,700,  but  it  was 
not  mentioned  that  in  para.  10  of  the  Bank's 
plaint  it  was  prayed  that  the  whole  sum 
sued  for  should  be  a  charge  on  the  land. 
After  alluding  to  the  compromise  of  the 
7th  April  1919,  it  was  stated  that  in  accord- 
ance with  it  the  Bank  by  fraud  obtained 
a  decree  for  Rs,  27,950-15-9  against  Baldeo 
Das  on  the  condition  that  he  should  be 
personally  liable,  and  that  the  decretal 
amount  should  form  a  charge  on  the  land 
in  question.  In  this  way  the  other  defend- 
ants, that  is,  Baldeo  Das's  brothers,  got 
themselves  absolved  from  liability,  while 
in  reality  the  land  was  not  mortgaged  with 
the  Bank  and  neither  the  whole  amount 
claimed  nor  any  part  of  it  was  a  charge 
on  the  land.  It  was  further  alleged  that 
Bdtldeo  Das's  brothers  entered  into  a  com- 
promise affecting  their  brother  to  which 
he  was  not  a  party,  and  inserted  therein  con- 
ditions affecting  him  whereas  they  had  no 
power  to  make  a  compromise  encumbering 
the  land  in  question.  The  plaintiff  Syndi- 
cate, therefore,  claimed  that  they  as 
decree  holders  were  also  entitled  to  execute 
their  decree  against  this  land.  These  are 
the  only  allegations  in  the  plaint.  This  suit 
has  been  dismissed  and  it  is  an  appeal  from 
its  dismissal,  which  is  now  before  us. 

The  defendant-Bank  raised  several  pre- 
liminary questions  and  also  pleaded  that 
there  was  no  fraud,  as  the  land  was  mortgag- 
ed with  them  for  the  debt  due  to  the  Bank. 
The  plain  tiff- Syndicate  in  their  replication 
stated  that  they  could  bring  the  suit  as  they 
suffered  under  the  decree  in  question  and 
that  they  had  a  cau^e  of  action  because  the 
Bank  had  obtained  their  decree  by  fraud 
and  collusion.  No  attempt  was  made  fur- 
ther to  define  what  the  fraud  and  collusion 
was. 

The  Senior  Subordinate  Judge,  who  tried 
the  case,  held  inter  alia  that,  as  the  money 
realised  by  the  sale  of  the  disputed  land 
was  lying  in  Court,  a  suit  for  a  mere  de- 
claration lay  because  the  effect  of  a  decree 


324 


PUNJAB  COMMERCIAL  SYNDICATE  V.  PCNJAB  CO-OPfiRATlVfl  BANK  LTD.     [92  I.  0. 


if  given,  would  be  to  allow  the  Syndicate  a 
rateable  distribution  in  the  net  assets;  that 
s.  73,  0.  P.  0.,  did  not  bar  the  suit;  and 
that  the  decree  which  was  attacked  could 
Only  be  avoided  if  there  had  been  a  fraud 
(jx)  either  upon  the  Court  or  (6)  upon  the 
defendants  in  that  case  in  the  conduct 
6f;tlie  proceedings  as  an  extrinsic  collater- 
al act  or  (c)  unless  there  had  been  fraud- 
ulent collusion  directed  against  the  alleged 
injured  creditor. 

On  the  issues  of  the  merits,  he  held  that 
$e  fraud  alleged  in  the  pleadings  was  that 
Up  land  was  in  reality  hypothecated  with 
tie  Bank  and  that  the  defendants  other  than 
Baldeo  Das,  who  was  absent,  colluded  with 
the  Bank  to  charge  the  land  in  order  to  ex- 
tyicate  themselves  from  liability.  He  fur- 
ther held  that  there  was  no  fraudulent  col- 
lusion of  this  nature  and  that,  in  any  case, 
if  Baldeo  pas's  brothers  did  agiee  to  the 
charge  on  the  land  in  consideration  of  the 
claim  being  given  up  against  them,  this 
tyould  not  give  the  plaintiff-Syndicate  a 
cause  of  action,  as  it  was  necessary  for  them 
to  show  that  the  fraud  was  directed  against 
them.  He  also  held  that  there  was  no  alle- 
gation in  the  pleadings  that  any  fraud 
was  directed  against  the  plaintiff-Syndi- 
fcate  and  that  if  there  had  been,  theie 
was  no  evidence  to  support  it.  Lastly,  he 
held  that  it  was  not  alleged  in  the  plaint 
that  there  was  any  fraud  on  the  Court,  and 
that,  in  any  case,  no  fraud  upon  the  Court 
had  been  made  out. 

The    grounds    of  appeal  are    somewhat 
diffuse.  Grounds  Nos.  1,  5,  8, 9, 10, 11  and  13 
aye  of  a  general  nature  and  require  no  dis- 
r,i-s:i  \\  Tr.  in-1  .nd  No.  13  it  was  prayed  that 
t!.-,»  ,:>;!!!,  .'-.  :  of  the  proceeds  of  the    sale 
of  the  land    should  be     stayed    pending 
tjie  decision  of  the  appeal.    This  was  not 
done  so  that  the  money  must  have  been 
paid  to  the  Bank.    The  other  grounds  taken 
amount  to  this  (1)  that  there  was  a  fraud 
upon  the  Court  [ground  No.  2  (a)]  and  (2) 
tfy&t  there  was  a  fraud  directed  against  the 
plaintiffs- appellants  [ground  No.  2(6)],  in  that 
tjle  compromise  was  designed  with  intent  to 
defeat  their  claim  [ground  No.  2  (c)],  their 
suit  being  then  pending  (ground  No.   7), 
while  (3)  grounds  Nos.  3,  4  and    6  go  on  to 
state  that  none  of  the  land  in  suit  was  mort- 
gaged by  Baldeo  Das  with  the  Bank  and 
that  para.  (4)  of  the  Bank's  plaijit  showed 
tjiat  in  any  case  the  hypothecation  was  only 
as  regards  the  promissory  note  of  Rs.  3,700, 


ed  by  fraud  by  the  Bank  in  collusion  with 
Baldeo  Das's  brothers. 

It  has  been  held  by  their  Lordships  of 
the  Privy  Council  in  Gunga  Narain Gupta  v, 
Tiluckram  Chowdhry  (1)  that  when  fraud 
is  charged  against  the  defendants,  it  is  an 
acknowledged  rule  of  pleading  that  the 
plaintiff  mustset  forth  the  particulars  of  the 
fraud  which  he  alleges  Now  in  the  pre- 
sent case,  if  the  pleadings  are  looked  at,  the 
only  fraud  alleged  is  that  Baldeo  Das's  bro- 
thers and  the  Bank  colluded  together  to 
obtain  for  the  Bank  a  charge  upon  the  dis- 
puted land  which  in  reality  was  not  mort- 
gaged with  them,  this  having  been  done  in 
order  that  the  brothers  should  escape  liabi- 
lity. This  is  the  best  possible  statement 
of  the  appellants'  case.  There  is  no  allega- 
tion that  there  was  a  fraud  upon  the  Court 
or  directed  towards  the  Syndicate  though 
it  is  noted  in  the  pleadings  that  the  Syndi- 
cate was  adversely  affected  by  the  decree  in 
question  but  nothing  more  and  that  they  for 
this  reason  had  a  cause  of  action.  We  would, 
therefore,  hold  that  the  appellants  cannot 
be  allowed  to  go  beyond  their  own  state- 
ment of  their  case,  though,  as  we  have  heard 
appellants'  Counsel  on  all  the  grounds  of 
appeal,  we  think  it  will  be  the  best  course 
to  record  our  findings  on  all  the  points 
raised. 

The  case  for  the  appellants,  therefore,  was 
that  the  Bank  obtained  their  ex  parte  decree 
with  a  charge  on  the  disputed  land  against 
Baldeo    Das  by  fraud  in  that,  in  reality, 
the  land  was  not  mortgaged  with  the  Bank 
but  Baldeo  Das's  brothers  admitted  that  it 
was  mortgaged  and  that  it  was  their  bro- 
ther's self-acquired  property  in    return  for 
the  Bank's  releasing  them  from  liability  as 
members  of  a  joint  Hindu  family  with  him. 
In  order  to  establish  their  case,  the  appel- 
lants relied  on  the    record  of  the  previous 
case  and  examined  two  witnesses.    The  fire't 
witness  was  Lajpat  Rai,  one  of  Baldeo  Das's 
brothers.  He  denied  that  there  was  any  talk 
at  the  time  of  the  compromise  to  the   effect 
that  the  decree  should  be  made  a  charge  on 
the  disputed  land  in  case%  other  creditors 
should  step  in.    It  was  not  even  mentioned 
at  that  time  that  there  were  other  creditors. 
Though  he  and  his  two  brothers,  who   coa* 
tested  the  suit  with  him,  disputed  the  hypo- 
thecation in  their  written  statement,  theV 
admitted  it  later,  he   explained,  when   tbd 
sale-deeds  were  produced  by  the  Bank  and 
;i)  15  0.  533;  15  1  A,  119;  12  Ind,  Jur,  254;  5  Sar,  P, 


»*?    *  WOM*  v+m-+f  f-  „—.-  —  .-  --»/     —      \      *          •  V*/    4>W  Wt  vwt  ***    *•  *»•  **w,   *«  J.U.VA 

pbd  that  the  decree  was  (therefore)  obtain*    0.  J.  168;  7  Ind.  Dec.  (N.  §.)  939  (?, 


[92  I,  0,  19,28]     PUNJAB  COMMERCIAL  SYNDICATE  U.  PUNJAB  CO-OPERATIVE  BANK  LTD,  325 


Thakar  Das  made  his  statement  as  a  wit- 
ness. The  second  witness  knew  nothing 
about  the  transaction.  No  further  attempt 
was  made  to  prove  that  the  land  in  question 
was  not  hypothecated  with  the  Bank  or 
what  the  fraud  was.  The  appellants'  oral 
evidence  was  thus  in  favour  of  the  Bank 
and  against  the  appellants,  whatever  the 
fraud  alleged  be  considered  to  be.  This 
leaves  to  be  considered  only  the  circumstan- 
ces. In  connection  with  them  appellants1 
Counsel  laid  great  stress  on  para  4  of  the 
Bank's  plaint,  and  the  fact  that  the  Syndi- 
cate's suit  was  then  pending.  He  also  com- 
mented at  great  length  on  the  statement  of 
Thakar  Das,  P.  W.  No.  3,  in  the  Bank's 
suit,  and  stated  that  it  was  not  sufficient  to 
enable  the  Court  to  pass  an  ex  parte  decree 
in  favour  of  the  Bank  against  Baldeo  Das. 
All  this,  however,  amounts  to  little  or 
nothing.  At  the  time  the  Bank's  suit  was 
filed,  it  was  in  liquidation  and  its  officials 
w^re  dispersed.  This  might  easily  account 
for  the  statement  in  para.  4  of  its  plaint, 
which  was  contradicted  by  para.  10.  The 
Compromise  in  question  might  well  have 
bsen  entered  into  by  the  Bank  and  Baldeo 
Das's  brothers,  even  if  there  had  been  no 
other  creditor.  There  was  a  presumption 
against  the  brothers  that  they  Were  joint 
With  Baldeo  Das,  At  the  same  time  the 
contest  was  delaying  the  Bank  from  realis- 
ing its  debt.  The  brothers  had  seen  that 
the  title-deeds  were  produced  by  the 
Bank  and  they  had  heard  the  statement 
Of  Thakar  Da*,  who  used  to  be  its  manager, 
to  the  effect  that  the  title-deeds  were 
deposited  as  a  cover  for  the  whole  loan  in 
1903  It  was  thus  quite  reasonable  on 
their  part  to  admit  that  the  land  in  dis- 
pute was  the  self-acquired  property  of 
Baldeo  Das  and  was  mortgaged  with  the 
Bank  and  that  they  had  no  concern  with  it, 
in  return  for  the  Bank  giving  up  its  claim 
against  them.  The  Bank  gained  even  more 
than  that ;  for  the  brothers  also  admitted 
that  Baldeo  Das  had  a  one-f 0111  th  share  in 
the  joint  ancestral  property  and  that  the 
shares  of  the  Bank  held  by  him  were  his 
self-acquired  property  and  not  family  pro- 
tteirty.  In  this  way  the  brothers  were 
estopping  themselves  from  denying  these 
facts  in  the  subsequent  execution  proceed- 
ings. From  these  circumstances  combined 
with  the  fact  that  the  appellants  have  not 
even  tried  to  establish  that  there  was  not 
kn  equitable  mortgage  with  the  Bank>  it  is 
iihpoSsible  to  draw  ths  deduction  that  the 


Bank  and  the  brothers  of  Baldeo  Das 
colluded  together  to  defraud  Baldeo  Das 
or  to  obtain  a  fraudulent  charge  on  the 
disputed  land  for  the  Bank.  There  was  an 
eminently  reasonable  compromise  entered 
into  between  them  and  thereafter  the 
Court,  with  the  record  and  the  evidence 
before  it,  passed  the  ex  parte  decree  in 
question  against  Baldeo  Das  and,  on  the 
basis  of  the  compromise,  dii.'ui-v^l  the 
suit  against  his  brothers.  Tne  mere  fact 
that  the  appellants'  suit  was  pending,  does 
not  make  such  a  fair  compromise  appear 
even  suspicious.  As  tKe  alleged  fraud  was 
not  established  the  suit  was  properly  dis* 
missed  on  this  ground  alone. 

We  would  go  further  and  hold  that  the 
present  suit  did  not  lie  on  the  allegation  of 
fraud  made.  It  has  been  held  in  Janki 
Kuer  v.  Mahabir  Sing\  (2),  that  an  ex  parte 
decree  cannot  be  re-opened  except  on  the 
ground  of  fraud  as  an  extrinsic  collateral 
fact  vitiating  the  proceedings  in  which  the 
decree  was  obtained  and  it  is  not  sufficient 
to  allege  that  it  was  obtained  on  a  false 
claim.  Even  if  an  ex  parte  decree  is  ob- 
tained on  perjured  evidence,  it  cannot  be 
set  aside  on  that  ground,  Kripasindhu 
Panigrahi  v.  Nandu  Ckaran  Panigrahi  (3). 
The  following  passage  from  Venkatarama 
Aiyar  v.  South  Indian  Bank,  Limited  (4) 
may  be  quoted  in  extenso: — 

"The  passages  relied  upon  in  the  books 
referred  to  above  lay  stress  on  the  fact  that 
a  fraud  practised  on  the  debtor  is  not  itself 
any  ground  for  interference  by  third  par- 
ties. The  defendant  holds  a  decree  which 
finally  determines  that  the  relation  of 
creditor  and  debtor  exists  between  him  and 
his  judgment-debtors  and  which  is  Condi}- 
sive  as  to  the  amount  of  the  d^bt  as  be- 
tween the  parties  (and  in  the  present  case, 

as  to  there  being  a  charge  on  the  land) 

The  plaintiff?  have  failed  to  establish  fraud 
or  collusion  against  themselves.  In  these 
circumstances  I  think  the  principle  of  the 
decision  above  referred  to  applies,  and  the 
plaintiffs  are  not  entitled  to  attack  the 
decree  by  showing  that  it  is  not  based  on 
a  real  debt/* 

It  follows  from  this  that  it  was  necessary 
for  the  appellants  to  allege  that  there  was 
collusion  directed  against  themselves  and 

(2)  58  Ind.  Oas.  317;  2  U.  P.  L.  R.  (Pat,)  242. 

(3)  56  Ind.  Caa.  606;  1  P.  L.  T.  206. 

(4)  55  Ind.  Caa.  452;  43  M.  381  at  p.  389;  27  M.  L. 
T.  66;  33  M- 1*  J.  108;  11  L,  W,  81;   (1920J  M,  W.  N, 


328 


BAIJNATfl  SINGH  0.  HAEI  PBASAD  BAfc, 


.1.  0. 1926J 


this  they  did  not  do,    Their  suit  failed  on 
this  ground  also. 

Even  if  it  be  taken  that  the  allegations 
in  the  pleadings  amount  to  an  averment  of 
fraud  directed  against  the  appellants,  it 
is  obvious  from  the  above  discussion  that 
there  is  no  evidence  of  any  such  fraud  or 
collusion.  It  is  unnecessary  to  go  over  the 
same  ground  again  as  it  has  been  shown 
that  the  compromise  complained  of  would 
have  been  a  fair  and  reasonable  compromise 
as  between  the  Bank  and  Baldeo  Das's 
brothers,  even  if  th£  appellants'  suit  had 
not  then  been  pending.  The  burden  was, 
therefore,  heavy  upon  the  appellants  to 
establish  that  it  was  the  result  of  collusion 
to  injure  them.  The  evidence  led  by  the 
appellants  did  not  help  them.  It  has  not 
been  shown  that  the  land  was  in  fact  not 
hypothecated  with  the  Bank.  It  does  not 
affect  the  case  that  the  result  was  detriment- 
al to  the  present  appellants",  though  it 
must  be  noted  that  there  is  no  evidence  on 
the  record  to  show  that  it  was  detrimental 
to  their  interests  and  that  they  could  not 
execute  their  decree  in  full  otherwise. 
Fraud  and  collusion  against  the  appellants 
were  not  alleged  nor  have  they  been  made 
out. 

Obviously  there  was  no  fraud  on  the 
Court.  That  also  was  not  alleged  in  the 
pleadings.  The  ex  parte  decree  against 
Baldeo  Das  was  passed  on  evidence.  It 
would  not  matter  if  that  evideoce  was  in- 
sufficient, or  if  the  decree  was  obtained  on 
perjured  evidence.  Before  the  decree  Could 
be  vacated,  it  would  have  to  be  established 
that  it  was  the  result  of  collusion  and  fraud 
directed  against  the  appellants.  As  to 
this  there  is  neither  direct  nor  indirect 
evidence. 

We  dismiss  the  appeal  with  costs. 

z.  K.  Appeal  dismissed. 


PATNA  HIGH  COURT. 

APPEAL  FttoM  APPELLATE  ORDEK  No.  267 

OF  1923. 
April  16,  D24, 
Present  :—  Mr.  Justice  Das  and  Mr.  Justice 


. 

BAIJNATH  SINGH  AND  OTHERS- 
APPELLANTS 

versus 
HARI  PRA8AD  BAL—  RESPONDENT. 

Civil  Procedure  Code  (Act   V  of  1908)    ss    11  17 
O.XXI,  rr,  <><!,  lOO-Mortgage    deem-  ^wwiiW  of 


decree— Application  to  be  made  party ,  rejection  of -~ 
Sole— Application  for  order  declaring  non-liability  to 
eviction,  maintainability  of — Res  judicata. 

In  execution  of  a  mortgage  decree,  a  ptisine  mort- 
gagee, who  had  been  made  a  pro  forma  defendant  in 
the  suit,  applied  to  be  made  a  party  to  the  execution 
proceedings  and  to  have  a  notice  under  r.  66  of 
0.  XXI,  O.  P.  0,  issued  to  him.  This  application 
was  reject?  -\  air!  l!uk  fn;  J  •  -:'t  <:id  not  appeal  against 
the  order  (  f  IO,T,"II,»:I  Afs.M  :':o  sale  had  taken  plaae, 
he  made  sin  >u>|  :;r":i  i  •".  for  an  order  declaring  that  he 
was  not  l-ju)!','  L  > '  •.  i k;  •  -ii  inasmuch  as  no  notice  under 
O.  XXI,  r  66  had  been  issued  to  him  : 

Held,  (1)  that  the  second  application  was  not  main- 
tainable ,  [p  326,  col  2.J 

(2)  that,  in  any  case,  the  question  raised  in  the 
«•  "  •  : "  was  res  judicata  by  virtue  of  the 

•  •  •  ••  first  application,  [p.  327,  col.^1  ]  ^ 

Appeal  against  an  order  of  the  District 
Judge,  Gaya,  dated  the  4th  August  1923,  con- 
firming that  of  the  Subordinate  Judge,  Gaya, 
dated  the  14th  April  1923. 

Mr.  S.  N.  Ray,  for  the  Appellants. 

Messrs.  Shiveswar  Dayal  and  Brij  Kishore 
Prasad,  for  the  Respondent, 

JUDGMENT* 

Das,  J. — I  am  clearly  of  opinion  that 
the  application,  in  the  form  in  which  it  was 
presented,  was  not  maintainable,  and  that 
the  Courts  below  should  have  refused  it.  It 
was  urg^d  before  us  that  the  application  was 
one  under  s.  47;  but  what  was  the  question 
that  the  Courts  had  to  try?  The  question  was 
whether,  not  having  been  made  a  party  to 
the  execution  proceedings,  the  respondent 
was  bound  by  a  sale  held  in  hid  absence. 
But  this  is  precisely  the  question  which  he 
raised  in  his  application  of  the  llth  Sep- 
tember 1922.  The  Court  belli  that  he  was 
a  pro  forma  defendant  and  was  not  entitled 
to  a  notice  under  0  XXI,  r.  66,  I  think 
the  decision  of  the  Court  was  wrong.  But 
the  applicant  was  satisfied  with  the  order, 
and  did  not  prefer  an  appeal  therefrom. 
The  sale  has  now  taken  place,  and  he  ap- 
plies for  an  order  that  he  is  not  liable  to  be 
evicted  inasmuch  as  notice  under  0.  XXI, 
r  66  was  not  served  on  him.  The  Courts 
below  have  acceded  to  his  application,  and, 
as  a  result  of  their  orders,  the  applicant 
in  effect  becomes  the  owner  of  the  proper- 
ties, though  he  was  a  puisne  mortgagee  and 
failed  to  redeem  the  prior  mortgage 

If  his  present  application  is  to  be  regard- 
ed as  an  application  under  s.  47,  the  appli- 
cation of  the  llth  September  1922  was 
equally  an  application  under  s.  47.  If  that 
be  so,  then  the  order  passed  on  the  appli- 
cation of  the  llth  September  1922  operates 
as  res  judicata,  and  it  is  not  open  to  the 
applicant  to  re-agitate  the  question  whether 


£92 1.  0. 1926] 


TCKARAM  V.  CIIINTARAM. 


257 


he  was  entitled  to  notice  of  execution.  In 
order  to  succeed  in  the  present  application, 
the  applicant  must  establish  that  he  was 
entitled  to  notice  under  O.  XXI,  r.  66;  but 
this  question  he  cannot  raise  having  regard 
to  the  order  of  the  Court  on  his  application 
of  the  llth  September  1922 

It  was  next  urged  that  the  application 
was  one  under  0.  XXI,  r,  100  But  r.  100 
applies  to  a  case  where  a  person  other  than 
the  judgment-debtor  is  dispossessed  of  im- 
moveable  property;  but  here  the  applicant 
is  the  judgment- debtor,  and  so  far  as  we 
are  informed,  he  has  not  been  dispossessed 
of  the  property  yet.  * 

Lastly,  it  was  contended  that  the  appli- 
cation was,  one  substantially  under  0.  XXI, 
r.  90;  but  it  is  sufficient  to  point  out  that 
there  is  no  complaint  here  of  a  material 
irregularity  in  publishing  or  conducting  the 
sale. 

There  was  no  merit  whatever  in  the  appli- 
cation, and  the  Courts  below  should  not 
have  stretched  the  law  to  give  the  appli- 
cant the  status  of  an  owner.  He  is  a  puisne 
mortgagee  and  a  decree  was  fairly  and  pro- 
perly obtained  against  him.  He  failed  to 
redeem  within  the  time  fixed  by  the  decree. 
He  has  made  no  attempt  to  satisfy  the 
mortgage  decree;  and  the  position  now 
taken  up  by  him  is  one  of  absolute  techni- 
cality, namely,  that  he  should  have  been 
served  with  notice  under  0.  XXf,  r.  ti6  of 
the  Code.  The  technical  objection  may  be 
met  by  the  technical  reply  that  this  is 
precisely  the  issue  which  he  raised  in  his 
application  "of  the  llth  September  1922,  and 
that  the  order  passed  on  that  application 
operates  as  res  judicata  between  the  parties. 
I  would  allow  this  appeal,  set  aside  the 
orders  passed  in  the  Courts  below,  and 
dismiss  the  application  with  costs  in  all  the 
Courts. 
Ross,  J.— I  agree. 


z.  K. 


Appeal  allowed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

APPEAL  PROM  APPELLATE  DECREE  No.  497 

OP  1922. 

October  29,  1923. 

Present ;— Mr.  HalHfax,  A.  J.  0. 

TUKARAM— DEFENDANT  No.  2— APPELLANT 

versus 

OHINTARAM— PLAINTIFF—RESPONDENT. 
GivH  Procedure  Code  (Act  V  of  1908),  9. 100— Appeal, 


second— Finding  of  fact — Question  for  trial  not  undir* 
stood,  effect  of. 

A  finding  of  fact  cannot  be  disturbed  in  secon4 
appeal,  provided  the  facts  found  by  the  lower  Appel- 
late Court  are  relevant  and  the  finding  is  based  an 
evidencs  proper  for  -.")ji**i  !iin;i  >n  [p.  329,  col.  1  ] 

It  is  not  necessary  I'la!  ;lu  whole  of  the  evidence 
given  in  the  case  should  have  been  considered  in  th$ 
lower  Appellate  Court  and  still  less  that  every  part 
of  it  should  have  been  mentioned  in  the  judgment ; 
interference  is  not  justified  by  an  apparent  omission 
to  consider  some  material  part  or  even  the  main  part 
of  it.  Where,  however,  the  lower  Appellate  Court  has 
entirely  misunderstood  the  question  it  had  to  try,  itg 
finding  cannot  be  upheld  in  second  appeal,  [ibid.} 

Appeal  against  a  decree  of  the  Addi<* 
tional  District  Judge,  Bhandara,  dated  th* 
22nd  of  July  1922,  reversing  that  of  the 
Second  Munsif,  Bhandara,  dated  the  27th 
of  March  1922. 

Mr.  V.  R.  Pandit,  R.  B,,  for  the  Appellant, 
Mr.  D.  T.  Mangalmurti,  for    the  Respond- 
ent. 

JUDGMENT.— The  plaintiff  Ghinta- 
ram  and  the  two  defendants  Vithoba  and 
Tukaram  all  belong  to  the  Kalar  caste.  The 
first  two  live  in  Warad  and  the  third  in 
Borgaon,  which  is  not  far  away,  and  they 
appear  to  be  the  sons  of  three  brothers.  The 
plaintiff  alleged  that  by  a  registered  sale- 
deed,  dated  the  3rd  of  February  1921,  Raghu- 
nath,  the  father  of  Vithoba,  sold  him  for 
Rs.  156  his  absolute  occupancy  holding  con- 
sisting of  field  No.  420/4  (45)  and  field 
No.  4*3-9  ('90),  and  that  in  the  following 
Mrig,  that  is  to  say  the  second  fortnight  of 
June,  the  two  defendants  ousted  him  from 
the  larger  field  No.  423/9.  Raghunath,  it 
appears,  died  in  April  of  that  year.  Chin* 
taram  further  stated  that  he  had  lost  the 
original  sale-deed,  but  gave  no  details  in 
the  plaint  of  the  time  or  manner  of  the  loss. 
In  the  appellate  judgment  it  is  incorrectly 
stated  that  the  allegation  in  the  plaint  was 
that  the  loss  occurred  in  what  the  learned 
Additional  District  Judge  in  his  judgment 
calls  the  "month  of  Mrig  "  The  same  term 
is  used  in  the  plaint,  but  in  reference  to 
another  event. 

Stripped  of  irrelevancies  the  version 
of  the  facts  really  put  forward  by  the 
defendants  was  as  follows :  There  was  a 
decree  for  Rs.  67-12-0  against  Raghunath 
and  he  was  otherwise  deeply  indebted  He, 
therefore,  arranged  to  execute  a  bogus  sale 
deed  in  favour  of  the  plaintiff.  For  pay- 
ment of  the  decree  he  borrowed  Rs.  52,  from 
the  plaintiff  Chintaram,  and  executed  the 
sale-deed  for  Rs.  156,  the  balance 
untruly  entered  iu  the  deed  as  due  for 


S58 


T0KAEAM  1?,  OHINTAKAM, 


viouB  loans.  There  was  never  any  intention 
of  making  any  real  sale  and  no  considera- 
tion was  paid  excepting  the  Rs.  52,  nor  was 
possession  of  either  field  ever  given  to  the 
ostensible  purchaser.  But  after  Raghu- 
Jiath's  death  Chintaram  showed  signs  of 
treating  the  sale-deed  as  a  genuine  and 
valid  document,  and  so  the  matter  was  dis- 
cussed in  the  presence  of  others  on  the  13th 
of  June,  though  no  formal  panchayat  was 
convened.  As  a ^  result  of  that  discussion 
Ohintaram  agreed  that  inasmuch  as  he  had 
actually  paid  only  the  Rs.  52,  which  had 
been  given  to  Raghunath  in  cash  when  the 
document  was  registered  and  as  this  was 
just  a  third  of  the  whole  stated  considera- 
tion of  the  sale- deed,  he  should  be  given 
pnly  the  smaller  of  the  two  fields,  which  is 
just  half  the  size  of  the  other,  and  the 
latter  should  remain  with  Vithoba.  Chinta- 
ram himself  recorded  a  note  of  this  agree- 
ment on  the  back  of  the  sale-deed.  At  the 
same  time  and  place  the  first  defendant 
Vithoba  executed  a  document  leasing  the 
larger  field  for  one  year  to  the  second 
iefendant  Tukaram,  which  Chintaram  also 
signed  as  an  attesting  witness.  Later, 
;hat  is  on  the  16th  of  October  1921,  the 
lease  to  Tukaram  was  converted  into  a'sale 
by  a  registered  document. 

The  defendants  in  their  pleadings  denied 
knowledge  of  the  execution  of  the 
aale-deed  by  Raghunath,  and  in  almost  the 
same  breath  made  their  allegations  of  what 
tvas  done  about  it  at  the  panchayat.  They 
ilso  pleaded  that  secondary  evidence  of 
its  existence  and  contents  could  not  be 
given  for  the  reason  that  it  was  not  lost  but 
intentionally  suppressed,  for  the  purpose 
}f  concealing  Chintaram's  own  endorse- 
ment on  it.  It  does  not  appear  to  have  struck 
any  body  that  the  allegations  in  regard 
to  that  endorsement  are  not  only  an  admis- 
sion but  an  affirmation  of  the  existence  and 
execution  and  contents  of  the  document, 
and  that  those  matters  require  no  further- 
proof.  Much  argument  seems  to  have  been 
wasted  on  this  point,  different  views  being 
taken  in  the  two  Courts  below,  and  the 
petition  of  appeal  here  challenges  that  of 
the  lower  Appellate  Court. 

The  plaintiff  was  apparently  unable 
to  deny  his  signature  on  the  lease  of  the 
13th  of  June  1U21  He,  however,  "denied1* 
the  document,  whatever  that  may  mean 
when  it  is  coupled  with  an  admission  that 
*f  tar*  $£"  he  knows  it  was  executed  and 


[92  I.  0. 1*26] 

that  he  signed  it  himself  as  an  attesting 
witness.  The  latter  admission,  however,  is 
qualified  by  the  statement  that  Vithoba 
represented  to  him  that  the  document  was 
to  be  a  lease  of  some  other  field,  and  he 
signed  it  when  only  the  first  two  linea  had 
been  written  and  then  went  away.  It  was 
then  urged  at  considerable  length  that 
neither  the  lease  nor  the  sale  to  Tukaram 
could  convey  any  title,  as  they  were  both 
subsequent  to  the  sale  to  the  plaintiff,  and 
the  legality  of  the  "award"  of  the  panchayat 
was  also  impeached.  Neither  the  lease  nor 
the  sale  was  pleaded  as  a  basis  of  any  title, 
nor  was  there  any  allegation  of  an  arbitra- 
tion or  an  award  :  all  three  matters  were  put 
in  merely  as  evidence  in  support  of  the  al- 
legation that  on  the  13th  of  June  1921  the 
plaintiff  agreed  that  the  larger  field  should 
be  retained  by  Vithoba  and  the  smaller  one 
given  to  him  and  that  no  more  of  the  con- 
sideration of  the  sale  was  to  be  paid  by  him 
than  he  had  already  paid.  His  pleadings 
ended  with  a  statement  that  the  loss  of  the 
sale-deed  occurred  "about  the  time  of  Mrig" 
during  a  journey  from  Warad  to  Bhandara. 
On  those  pleadings  and  the  evidence 
adduced  by  the  parties  the  suit  was  dismiss- 
ed in  the  first  Court  on  the  finding  that 
loss  of  the  original  sale-deed  had  not 
been  proved  and,  therefore,  secondary  evi- 
dence of  its  existence  and  contents  could 
not  be  given.  This  decree  was  set  aside  in 
appeal  on  the  following  findings,  stated  as 
far  as  possible  in  the  learned  Additional 
District  Judge's  own  words.  He  held  "that 
the  original  sale- deed  is  lost  and  that  sec- 
ondary evidence  is  admissible  in  evidence 
to  prove  the  same,"  and  further  that,  in  the 
absence  of  rebutting  evidence,  the  second- 
ary evidence  adduced  by  the  plaintiff 
proved  "that  the  sale- deed  was  for  con- 
sideration and  that  it  was  not  nominal.11  It 
is  next  found  that  there  was  no  arbitration 
and  no  award,  and  "the  whole  story  about 
the  panchayat  and  the  award  is  false  and 
untrue".  There  is  a  complete  avoidance 
of  a  finding  on  the  question  whether  the 
plaintiff  signed  the  lease  of  the  13th  of 
June  1921  with  knowledge  of  its  contents  or 
signed  it  under  the  impression  that  it  was 
to  be  a  lease  of  other  land  when  only  the 
first  two  lines  had  been  written.  All  there 
is  on  this  point  is  a  finding  that  there  is 
nothing  to  show  that  the  attestation  of  the 
document  by  the  plaintiff  induced  the 
lessee  Tukaram  to  believe  that  the  field 
belonged  to  his  lessor  Vithoba,  and  "tie 


TOKARAM  V,  CHINTARAM. 


[92  L  0. 1926J 

Attestation  in  question  does  not,  therefore, 
operate  as  an  estoppel.11 

It  was  laid  down  by  the  Privy  Council 
in  Durga  Chowdhmni  v.  Jewahir  Si7igh 
Chowdhri  (1),  that  an  erroneous  finding  of 
fact,  however  gross  or  inexcusable  the  error 
may  be,  cannot  be  made  the  basis  of  a 
second  appeal.  Such  findings  of  fact  as 
there  are  in  the  judgment  of  the  lower 
Appellate  Court  cannot  be  described  as 
anything  less  than  gross  and  inexcusable 
errors,  and  it  would  seem  that  in  writing 
that  judgment  the  learned  Judge  was  fitting 
the  material  to  a  predetermined  result,  not 
working  on  it  to  its  natural  result.  That  is 
an  entirely  wrong  method  and  one  bound  to 
lead  to  error,  however  unconsciously  it  may 
be  adopted. 

,  But  I  would  be  precluded  from  disturb- 
ing the  findings  of  fact  in  the  judgment  of 
the  lower  Appellate  Court,  however  strongly 
I  might  think  they  were  opposed  to  any 
really  sane  view  of  the  evidence,  provided 
the  facts  found  were  relevant  and  the  find»- 
ings  were  based  on  evidence  proper  for  con- 
sideration. It  is  not  necessary  that  the 
whole  of  the  evidence  given  in  the  case 
should  have  been  considered  in  the  lower 
Appellate  Court  and  still  less  that  every  part 
of  it  should  have  been  mentioned  in  the 
judgment;  interference  is  not  justified  by  an 
apparent  omission  to  consider  some  material 
part  or  even  the  main  part  of  it.  The  pro- 
position that  it  is  so  justified  has,  however, 
been  accepted  in  this  Court  till  it  has  be- 
come an  established  practice,  and  it  is  enun- 
ciated in  several  published  rulings  among 
which  I  need  only  mention  my  own  in 
Raoji  v.  Warlu  (2),  though  that  proposition 
was  very  definitely  rejected  by  the  Privy 
'Council  in  the  case  mentioned,  which  was 
an  appeal  from  a  judgment  of  this  Court. 
It  was  followed  by  Ismay,  J.  C,  in  Tanto  v. 
Gajadhar  (3),  but  since  then  appears  to  have 
dropped  out  of  sight. 

It  has  been  suggested  that  their  Lord- 
ships did  not  lay  down  any  such  strict  rule 
in  that  case.  There  can  be  little  doubt 
about  that,  from  the  remarks  in  the  judg- 
ment on  the  Calcutta  case  of  Futtehina 
Begum  v.  Mohammad  Amur  (4)  and  the 
Allahabad  case  of  Nivath  Singh  v.  Bhikki 

(1)  18  0  23;  17  I.  A.  122;    5  Sar.  P.  0.  J.  560;  9  Irid. 
Dec  (N.  s.)  16  (P.  0.). 

(2)  77  Ind.  Cas.  911;    18  N.  L.  R.  182;  (1923)  A,  I.  R. 
(N.)  107;3N.L.J.313.  ^      ' 

(3)  2  N.  L  R.  98. 

(4)  9  0,  309;  4  Ind.  Dec.  (N,  g.)  855. 


329 


Singh  (5),  the  views  expressed  in  which  were 
not  accepted  as  a  correct  statement  of  the 
law.  If  there  were  any  doubt  it  would 
be  cleared  by  the  remarks  made  by 
their  Lordships  in  Shivabasava  v.  Sangappa 
(6),  on  this  and  another  previous  judgment 
of  the  Board  in  Anangamanjari  Chowdhrani 
v.  Tripura  Sundari  Chowdhrani  (7).  The 
same  rule  was  also  laid  down  negatively  in 
Hemanta  Kumari  Debi  v.Brojendro  Kishore 
Roy  Chowdhry  (8).  In  Damusa  v.  Abdul 
Samad  (9),  their  Lordships  did  uphold  a 
refusal  by  this  Court  to  accept  concurrent 
findings  of  fact  by  the  two  lower  Courts, 
but  that  refusal  was  based  on  the  opinion 
that  both  those  Courts  had  misconceived 
the  real  question  they  had  to  try. 

Now  the  one  question  for  trial  in  the 
present  case  was  this:  did  the  plaintiff 
admit  on  the  13th  of  June  1921  that  only 
Rs.  £2  of  the  consideration  of  his  sale-deed 
had  been  paid  and  agree  that  the  rest  should 
remain  unpaid  and  that  Vithoba  should  re- 
tain the  larger  of  the  two  fields  and  he 
himself  should  take  the  smaller?  The  judg- 
ment of  the  lower  Court  does  not  even  ap- 
proach that  question,  but  deals,  apart  from 
it,  with  two  at  the  most  of  the  subsidiary 
issues  of  fact  on  which  the  answer  to  it 
depends.  That  answer  must,  therefore,  be 
given  here  under  s.  103  of  the  C.  P.  C.,  and 
the  learned  Pleader  for  the  respondent  was 
unable  to  urge  that  on  a  proper  considera- 
tion of  the  case  the  answer  could  be  anything 
but  an  affirmative. 

The  appearance  of  the  document  of  the 
13th  of  June  1921,  in  which  Chintaram's 
admitted  signature  appears  below  that  of 
another  attesting  witness,  makes  his  unsup- 
ported story  of  having  signed  it  when  only 
the  first  two  lines  had  been  written  even 
more  ridiculous  than  it  is  in  itself.  That 
document  alone  is  sufficient  proof  of  the 
allegations  of  tha  defendants,  which  are 
otherwise  well  supported,  and  sufficient  dis- 
proof of  the  essentially  improbable  story 
of  the  plaintiff,  which  is  unsupported  except 
by  his  own  deposition,  which  in  most  other 

(5)  7  A.  649;  A.  W.  N.  (1885)  151;  4  Ind.  Dec.  (N.  s.) 
830. 

(6)  29  B.  1,  8  0.  W.  N.  865;  6  Bom.  L.  R.  770;  1  A. 
L  J.  637;  31  I  A.  154;  8  Sar.  P.  C.  J  720  (P.  C.). 

(7)  14  C.  740;  14  I.  A.  101;  11  Ind.  Jur.  350;  5  Sar.  P. 
C.  J  45;  7  Ind.  Dec.  (N.  s)  490  (P.  C.). 

(8)  17  0.  875;  17  I.  A.  65,  5  Sar.  P.  C  J.  542;  8  Ind. 
Dec.  (N  s)1128  (P.  C.). 

(9)  51  Ind.  Cas.  177;  15  N.  L.  R.  97;  17  A.  L.  J. 
700  37  M.  L.  J.  36;  (1919)  M.  W.  N.  505;  21  Bom.  L. 
K  920;  10  L.  W.  310;  24  C,  W,  N.  81;  47  0.  107;  46  L 
A.  140  (P.  C.). 


530 


ALAPATX  RAMASWAMI  V.  DASARI  VENKATARANAYANA,     [92  J.  C.  1926J 


respects  is  obviously  untrue.  It  seems  to 
me  still  more  patent  that  he  never  lost  the 
sale  deed  but  has  intentionally  suppressed 
or  destroyed  it,  and,  therefore,  that  it  does 
hear  the  endorsement  in  his  hand  which 
the  defendants  allege;  nosane  person  outside 
a  Court  of  Justice  would  accept  for  a  single 
moment  as  anything  hut  an  obvious  and 
brazen  lie  his  ridiculous  story  of  the  loss 
of  the  document,  though  in  many  Courts 
the  application  of  wrong  standards  and 
principles  has  led  to  a  very  general  impres- 
sion that  a  Judge  must  pretend  to  believe 
in  the  truth  of  what  he  know3  to  be  untrue, 
and  must  act  as  if  it  were  true.  The  de- 
finitions of  "proved1*  and  "disproved"  in  s.  3 
of  the  Evidence  Act  are  perfectly  clear. 

The  decree  of  the  lower  Appellate 
Court  will  be  set  aside  and  that  of  the  first 
Court  dismissing  the  plaintiff's  suit  will 
bs  restored.  The  plaintiff-respondent  will 
pay  all  the  costs  of  the  litigation  in  all  three 
Courts. 

z.  K,  Appeal  allowed. 


ALLAHABAD  HIGH  COURT. 

FIBST  APPEAL  FROM  ORDER  No.  14  OF  1923, 

May  28,  1924. 
Present ;— Mr.  Cecil  Henry  Walsh,  Acting 

Chief  Justice,  and  Mr.  Justice  Ryves, 

MRS.  ALICE  GEORGINA  SKINNEK— 

PLAINTIFF— APPELLANT 

versus 

Kunwar  MUKARRAM  ALI  KHAN- 
DEFENDANT — RKSPONDENT. 

Limitation  Act  (IX  of  1908),  Sch.  7,  'Art.  777  — 
Appeal— Death  of  respondent — Application  to  bring 
legal  representatives  on  record — Limitation. 

Article  177  of  Sch.  1  to  the  Limitation  Act,  \vhioh 
prescribes  the  period  of  limitation  for  an  application 
to  bring  on  the  record  the  legal  representatives  of  a 
deceased  respondent,  was  not  in  any  manner  affected 
by  the  passing  of  the  Amending  Act  XXVI  of  1920. 
It  was  not  till  the  Amending  Act  XI  of  1923  was 
passed  that  the  period  of  limitation  prescribed  by 
Art.  177  was  reduced  from  six  months  to  ninety  days. 

First  appeal  from  an  order  of  the  Subordi- 
nate Judge,  Muzaffarnager  at  Meerut. 

Messrs.  B.  E.  O'Conor  and  Nehal  Chand, 
for  the  Appellant. 

Messrs.  Surendra  Nath  Sen,  Girdhari  Lai 
Agarwala,  PannaLal&nd  Gopi  NathKunzru, 
for  the  Respondent. 

JUDGMENT.— In  our  opinion  this 
appeal  must  succeed*  The  learned  Judge 


says  this  ingorance  of  the  law  is  no  excuse. 
It  is  a  dangerous  proposition.  We  think 
that  almost  any  excuse  for  ignorance  might 
be  accepted  under  these  circumstances  if  it 
were  necessary  for  us  to  consider  whether 
we  ought  to  extend  the  time.  But  we  are 
of  opinion  that  no  extention  of  time,  or  conces- 
sion of  any  kind,  is  required  by  the  appellant. 
The  difficulty  has  been  to  ascertain  what  the 
law  is.  It  now  turns  out,  that  the  appellant 
was  right  and  the  Judge  was  wrong.  The 
Punjab  High  Court,  [cf.  Gobind  Das  v.  Rup 
Kishore  (1)]  after  an  exhaustive  enquiry  have 
ascertained  that  when  the  Act  of  1920  was 
enacted  by  the  Government  of  India,  the 
period  provided  in  the  appropriate  column 
opposite  Art.  177  was  "six  months "  No 
slovenly  use  of  the  word  "ditto11  a  word  which 
ought  to  have  no  place  in  any  Statute  at  all, 
has  anything  to  do  with  the  matter.  The 
period  was  six  months. 

The  Amending  Act,  XX  VI  of  1920,  did  not 
touch  Art.  177.  Therefore,  after  the 
Amending,  Act  was  passed;  the  period  in  the 
column,  according  to  law,  opposite  Art. 
177,  was  still  six  months  and  that  was 
actually  the  period  provided  when  the  ap- 
pellant put  in  her  application  on  the  26th 
June.  That  application  was  well  within  six 
months  and  was,  therefore,  in  accordance 
with  the  existing  law.  Subsequently  in 
l->23,  by  Act  XI  of  Iu23,  the  period  has  been 
altered  to  ninety  days,  but  that  was  subse- 
quent to  this  application.  The  appellant  was, 
therefore  perfectly  within  her  rights. 

The  appeal  succeeds  atid  the  matter  must 
be  sent  back  to  the  lower  Court  with  direc- 
tion to  re-hear  the  application  according  to 
law. 

The  appellant  is  entitled  to  her  costs  here 
and  below.  The  costs  in  this  Court  will 
include  fees  on  the  higher  scale. 

z.  K.  Appeal  allowed. 

(1)  77  Ind.  Gas,  409;  4  L.  367,  6  L.  L.  J.  25;  (1924) 
A.  I.  R.  (L )  65. 


MADRAS  HIGH  COURT. 

SECOND  OIVIL  APPEAL  No.  408  OP  1923, 

September  16,  1925, 

Present: —Mr.  Justice  Viswanatha  Sastry. 
ALAPATI  RAMASWAMI— PLAINTIFF- 
APPELLANT 

versus 
DASARI  VENKATARANAYANA— 

DEFENDANT— RESPONDENT. 
Civil  Procedure  Code  (Act  V  of  1908),  0,  VI l  r,  17- 


[IS    I.  0.  1926J  ALAPATI  RAMASWAMI  r.  DAflARI  VBNKATAfiANAYANA, 


331 


Plaint,  amendment  of—Caute  of  action,  date  of,  change 
of, 

No  plaint  should  be  allowed  to  be  amended  so  aa 
to  change  the  cause  of  action;  but  an  amendment  to 
change  the  date  when  the  cause  of  action  was  stated 
in  the  plaint  to  have  arisen  ought  to  be  allowed,  even 
though  the  effect  of  so  doing  would  be  to  deprive  the 
defendant  of  a  plea  of  limitation  [p.  3,U,  col  2.]' 

Sevugan  Chetty  v.  Krishna  Aiyangar,  13  Ind,  Caa. 
268;  36  M.  378;  10  M,  L.  T.  557;  22  M.  L.  J.  139,  relied 
on. 

Balkaran  Upadhya  v.  Gaya  Din  Kalwar,  24  Ind. 
Cas.  255;  36  A.  370;  12  A.  L.  J.  635,  distinguished. 

Second  appeal  against  a  decree  of  the 
District  Court,  Guntur,  in  A.  8.  No.  332 
of  1921,  preferred  against  that  of  the 
Court  of  the  District  Munsif,  Tenali,  in 
0.  8.  No.  804  of  1920. 

Mr.  B.  Somayya,  for  the  Appellant. 

Mr.  N.  Rama  jRao,  for  the  Respondent, 

JUDGMENT,— Second  appeal  by 
plaintiff  against  the  decree  of  the  District 
Judge  of  Guntur  in  A.  8,  No  332  of  1920. 

The  question  to  be  considered  in  this 
appeal  is  one  of  limitation,  and  the  facts  are 
as  follows; — The  defendant  executed  a 
hypothecation  bond  Ex.  A  on  10th  October 
1917.  Under  this  bond  a  sum  of  Rs.  2,000, 
was  due  to  the  plaintiff  and  the  defendant 
undertook  to  deliver  7-j-  candies  of  paddy 
every  year  for  a  period  of  eight-years.  The 
paddy  was  deliverable  on  Pushy  a  Bahula 
30th  of  every  year,  and  in  case  default  was 
made  in  the  delivery  of  the  paddy,  the  de- 
fendant made  himself  liable  to  pay  the 
market  value  of  the  paddy  in  Ponnur  market 
on  the  30th  Phalguna  Bahula  of  the  same 
ye'ar.  There  is  also  a  provision  in  the  bofrd 
to  the  effect  that  in  case  the  first  instalment 
was  not  fully  paid,  the  last  instalment  also 
became  due  and  that  in  case  the  second  in- 
stalment was  not  paid  the  seventh  instalment 
also  became  due;  and  so  on.  For  the  first 
instalment  a  small  quantity  of  paddy  had 
been  delivered;  and  on  20th  November 
1918  the  plaintiff  instituted  a  suit  for  the 
recovery  of  the  amount  due  with  respect  to 
the  first  and  eighth  instalments.  The  plaint 
in  this  suit  was  returned  for  presentation 
to  the  proper  Court  on  24th  February  1919, 
and  it  was  presented  in  the -District  Munsif  s 
Court  of  Baptla  on  26th  February  1919. 
The  present  suit  out  of  which  this  second 
appeal  arises  was  in  respect  of  the  second 
and  seventh  instalments.  One  of  the  con- 
tentions urged  was  that  the  suit  was  barred 
under  0.  II,  r.  2  of  the  0.  P.  0.  Both  the 

Courts  below  Upheld  this    contention  and 

dismissed  the  suit. 
It  is  contended  before  me  that  the  cause 


of  action  in  the  present  suit  which  was  in- 
stituted on  31st  August  1920  did  not  arise 
on  the  date  when  the  plaint  for  the  first 
and  eighth  instalments  was  filed  and  that, 
even  if  it  did  arise  the  date  of  the  cause  of 
action  was  not  30th  January  1919  as 
stated  in  the  plaint,  but  30th  of  Phalguna 
Bahula  which  would  be  about  March  1919. 
For  considering  when  the  cause  of  action 
really  arose,  reference  has  to  be  made  to 
Ex,  A.  This  document  recites  that  the 
paddy  was  deliverable  on  Pushya  Bahula 
30th  of  every  year,  and  that  in  case  there 
was  failure  to  deliver  the  paddy,  defendant 
was  to  pay  the  value  of  14^  candies  at  the 
rate  prevailing  in  the  Ponnur  market  on 
Phalguna  Bahula  30th.  Before  the  parties 
went  to  trial,  the  plaintiff  put  in  a  petition  to 
amend  the  plaint  by  stating  that  the  cause  of 
action  arose  on  Phalguna  Bahula  30th  and 
this  application  was  refused  by  both  the 
Courts  below  on  the  ground  that  a  change  in 
the  cause  of  action  would  prevent  the  suit 
being  barred  and  thus  deprive  the  defend- 
ant of  his  right  to  have  the  suit  dismissed. 
Both  the  lower  Courts  were  of  opinion  that 
the  amendment  would  make  a  change  in 
the  cause  of  action,  but  this  does  not  appear 
to  me  to  be  so.  The  change  would  be  only 
in  the  date  when  the  cause  of  action  arose 
and  not  in  the  cause  of  action  itself  which 
would  remain  the  same.  The  document 
distinctly  provides  that  the  value  of  the 
paddy  aa  and  on  Phalgiina  Bahula  30th 
was  to  become  payable  in  case  the  paddy 
was  not  delivered.  For  the  purpose  of  in- 
stituting the  suit  the  plaintiff  would,  there- 
fore, have  to  wait  till  Phalguna  Bahula 
30th  for  the  purpose  of  ascertaining  the 
price  on  that  date.  It  is  only  after  as- 
certaining the  price  that  he  could  have 
valued  his  suit  and  come  in  with  his  plaint. 
The  cause  of  action  remains  as  it  was, 
namely,  the  failure  to  deliver  paddy,  but 
the  only  variation  which  the  plaintiff  wanted 
to  make  was  as  to  when  the  cause  of  action 
arose.  Therefore  such  an  amendment 
could  be  allowed  as  laid  down  by  this  Court 
in  Sevugan  Chetty  v.  Krishna  Aiyangar  (1). 
The  Vakil  for  the  respondent  relied  upon  a 
case  in  Balkaran  Upadhya  v.  Gaya  Din 
'  Kalwar  (2);  but  all  that  this  case  lays  down 
is  that  no  amendment  should  be  allowed 
when  there  is  a  change  in  the  cause  of  action 
and  not  when  there  is  a  change  in  the  date 

(1)  13  Ind  Cas.  268,  36  M.  378;  10  M.  L.  T.   557;  22 
M.  L.  J,  139. 

(2)  24  Ine}.  Caa,  ?55;  3§  A.  370;  12  A.  L,  J,  63$, 


332 


D1BBARI  MAL-RAM  8AHAI  V,  SECRETARY  OP  STATE.  [92  1.  C.  1926] 


when  the  cause  of  action  arose.  The 
grounds  on  which  the  lower  Courts  declin- 
ed to  allow  the  amendment  seem  to  me 
to  be  untenable;  and  the  amendment,  in 
my  opinion,  ought  to  have  been  allowed. 
In  this  view  the  suit  would  not  be  barred 
by  limitation. 

Other  pleas  were  also  raised  which  form 
the  subject-matter  of  Issues  Nos.  2  and  3. 
No  evidence  was  let  in  and  no  finding 
given  on  theae  issues  by  the  Trial  Court. 

The  appeal  is,  therefore,  allowed,  and  the 
suit  is  remanded  to  the  Trial  Court  for 
disposal  after  receiving  evidence  on  the 
remaining  issues. 

Costs  in  this  Court  will  be  paid  by  the 
respondents.  Costs  in  the  lower  Courts 
will  abide  and  follow  the  result. 

The  appellant  will  get  refund  of  the 
Court-fee  paid  on  the  memorandum  of 
second  appeal,  and  in  the  memorandum  of 
appeal  to  the  lower  Appellate  Court. 

v,  N.  v.  Appeal  allowed. 

N.  H. 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1285  OF  1^22. 

May  27,  1924. 
Present: — Mr.  Justice  Daniels  and 

Mr.  Justice  Neave. 
BHAGWATI  SINGH  AND  OTHERS- 
DEFENDANTS—APPELLANTS 

lersus 
GURCHARAN  DUBE-PLAINTIFF 

— RfcSPONDENT. 

Hindu  Law—  Joint  family — Mortgage  by  father  to 
pay  off  encumbrance  on  property  acquired  by  pre- 
emption, validity  of. 

A  mortgage  of  family  property  executed  by  a  Hindu 
father  in  order  to  pay  off  an  encumbrance  on  property 
acquired  by  him  under  a  pre-emption  decree,  is  not 
binding  on  the  sons  unless  it  is  shown  that  it  was  for 
the  benefit  of  the  family  that  the  encumbrance  should 
be  paid  off  by  hypothecation  of  the  family  property. 

becond  appeal  from  a  decree  of  the  Sub- 
ordinate Judge,  Basti. 

Mr.  Shankar  Saran,  for  the  Appellants. 

Mr.  N,  Upadhia,  for  the  Respondent. 

JUDGMENT.— We  think  that  this  ap- 
peal cannot  succeed.  The  suit  was  for  a 
declaration  that  a  hypothecation  bond 
executed  by  the  plaintiff's  father  of  ancestral 
joint  property  was  not  binding  on  the 
"plaintiff,  not  having  been  executed  for  legal 
necessity,  Both  the  Courts  have  decreed  the 


suit  and  the  defendants  appeal.  The 
bond  in  question  was  for  a  sum  of  Rs.  177 
of  which  Ks.  165  was  paid  in  discharge  of 
a  mortgage  on  certain  property  which  the 
plaintiff's  father  had  acquired  under  a  pre- 
emption decree.  The  decree  was  given  him 
on  payment  of  Rs,  130  which  had  been  paid 
into  Court.  The  pre-empted  property  was, 
however,  subject  loan  encumbrance,  and 
the  hypothecation  bond  in  suit  was  execut- 
ed to  pay  off  this  encumbrance.  ^  Reference 
has  been  made  to  the  decisions  in  Nathu  v. 
Kundan  Lai  (1)  and  Chatur  Bhuj  v.  Gobind 
Ram  (2)  which  dissented  from  the  decision 
in  Nathu  v  Kundan  Lai  (1).  Neither  of 
these  decisions  is  strictly  applicable.  In 
these  cases  the  question  arose  whether  pay- 
ment of  an  amount  which  the  father  was 
required  to  deposit  under  a  pre-emption 
decree  amounted  to  antecedent  debt  or  not. 
In  this  case  there  was  no  question  of  any 
debt.  The  amount  which  the  father  was 
required  to  deposit  under  the  decree  had  al- 
ready been  deposited.  The  question  is,  there- 
fore, reduced  to  this  whether  it  was  more 
advantageous  to  the  family  that  the  en- 
cumbrance on  the  pre-empted  property 
should  be  paid  off  at  the  cost  of  encumber- 
ing the  ancestral  property  or  not.  On  this 
there  is  a  finding  of  both  the  lower  Courts 
that  it  is  not  established  that  the  discharge 
of  the  encumbrance  at  the  cost  of  hypo- 
thecating the  family  property  was  for  the 
benefit  of  the  family.  The  Courts  have 
pointed  out  that  the  hypothecation  bond  in 
stiit  carried  compound  interest  at  a  fairly 
high  rate.  In  face  of  this  finding  the  appeal 
cannot  succeed  and  we  accordingly  dismiss 
it  with  costs  including  in  this  Court  fees 
on  the  higher  scale. 

55.  K.  Appeal  dismissed. 

(1)  8  Ind.  Cas  836,  7  A.  L.  J.   1182;  33  A.  242. 

(2)  67  Ind.  Cas.  668,  45  A.  407;  4  U.  P.  L.  R.  (A.)  43; 
(1923)  A.  I.  R.  (A.)  218,  21  A    L  J.  348. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  691  OF 

July  21,  1925. 
Present:— Mr.  Justice  Abdul  Raodf 

and  Mr.  Justice  Addison. 

DARBARI  MAL-RAM  8AHAI— 

PLAINTIFF— APPELLANT 

versus 

THE  SECRETARY  OF  STATE- 
DEFENDANT — &E8PONDfeNT, 
Railways  Act  (IX  of  1890),  s.  80— Goods  consigned 
to  Railway  Company— Carriage  over  systems  of  mor* 


I.  0.  l9£()J  NARASIHHA  MTJDALT  t).  POTri  NAIUYANAS1MI  OHBTTT. 


333 


Hallways     than     one — Liability    of    other    Eailway 
Companies  — Loss,  proof  of. 

Where  goods  are  delivered  to  one  Railway  Adminis- 
tration for  carriage,  another  Railway  Administration 
over  whose  system  the  goods  had  to  be  carried  can  be 
held  liable  for  the  loss  of  the  goods  only  if  it  is  proved 
that  the  loss  occurred  on  that  Railway. 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Amritsar,  dated  the  17th  Janu- 
ary 1924,  modifying  that  of  the  Subordi- 
nate Judge,  Third  Class,  Amritsar,  dated 
the  3rd  May  1923. 

Mr,  Durga  Das,  for  the  Appellant. 

The  Government  Advocate,  for  the  Re- 
spondent. 

JUDGMENT.— The  plaintiff  sued  the 
Secretary  of  State  for  India  for  Rs.  1,505-9-6, 
on  the  ground  that  half  of  a  consignment  of 
820  tins  of  molasses,  namely,  410  tins,  had 
not  been  delivered  to  him  by  the  North- 
Western  Railway.  The  goods  were  delivered 
to  the  Bengal  North- Western  Railway  by 
Dana  Mal-Babu  Ram  of  Naukhar,  District 
Gorakhpur,  on  Risk  Notes  A  and  B.  The 
plaintiff  refused  to  make  the  Bengal  North 
Western  Railway  a  party  to  the  suit.  The 
North-Western  Railway  pleaded  that  no 
suit  lay  against  them  under  the  provisions 
of  s.  80  of  the  Railways  Act,  and  that  they 
were  protected  by  the  Risk  Notes.  The 
Trial  Court  decreed  the  claim  to  the  extent 
of  Rs.  l>32tf*0-6,  but  on  appeal,  the  learned 
District  Judge  allowed  the  plaintiff  only 
the  sum  of  Rs.  268-14  0  being  the  freight 
paid  for  the  undelivered  half  of  the  con- 
signment. He  held  that  the  North- Western 
Railway  was  not  liable  by  reason  of  the 
provisions  of  s.  80  of  the  Railways  Act,  as  it 
had  not  been  proved  that  the  loss  occurred 
on  that  Railway,  and  that  further  the  Risk 
Notes  on  which  the  goods  were  booked 
protected  the  Railway.  Against  this  deci- 
sion, the  plaintiff  has  filed  this  second 
appeal. 

There  is  a  finding  of  fact  that  it  has  not 
been  proved  that  the  loss  occurred  on  the 
North-Western  Railway,  and  it  seems  to 
Us  that  on  this  finding  the  decision  of  the 
lower  Appellate  Court  must  be  upheld,  as 
in  order  to  make  the  North-Western  Rail- 
way liable  it  is  necessary  under  s.  80  of  the 
Railways  Act,  that  the  loss  should  have 
occurred  on  that  Railway.  There  may 
have  been  loss  to  the  owner  by  the  fact 
that  the  goods  in  question  were  not  deliver- 
ed, as  laid  downinfft'JZ  Sawyers  and  Com- 
pany v.  Secretary  of  State  for  India  (1); 
pitf  in  that  case  it  was  clearly  established 

(1)  61  Ind,  Cae,  926;  2  L,  133;  3  L,  L,  J,  207  (P/B.). 


that  the  "  loss  "  to  the  owner  was  caused  by 
the  North- Western  Railway,  and,  therefore, 
it  was  not  piotected  by  s.  80  of  the  Rail- 
ways Act.  In  the  present  case,  however, 
the  North- Western  Railway  is  clearly  not 
liable  as  the  concluding  portion  of  s.  80 
is  to  the  effect  that,  when  goods  are  de- 
livered to  one  Railway  Administration,  an- 
other Railway  Administration  can  only  be 
sued  if  the  c<  loss  "  occurred  on  its  Railway. 
This  appeal  must,  therefore,  fail  and  we 
dismiss  it  with  costs. 
z.  K.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPBAL  No.  18  OF  1923. 

July  31,  1925. 

Present: — Mr.  Justice  Jackson. 

P.  NAKA8IMHA  MUDALI  AND  ANOTHER 

— PLAINTIFFS— APPELLANTS 

versus 

POTTI  NARAYANA8AMI CHBTTY 
AND  ANOTHER— DEPENDANTS- 
RESPONDENTS. 

Contract — Repudiation  by  one  party — Remedies  of 
other  party— Long  delay — Implied  abandonment  of 
contract. 

If  one  paity  to  a  contract  repudiates  it,  the  other 
party  may  treat  the  repudiation  as  inoperative,  and 
at  the  end  of  the  period  of  the  contract,  treat  the 
other  party  as  responsible  for  all  the  consequences  of 
non-performance,  thereby  keeping  the  contract  alive, 
or,  on  the  other  hand,  he  may  treat  the  repudiation 
as  a  wrongful  putting  an  end  to  the  contract,  and 
may  at  once  bring  his  action  as  on  a  breach  of  it.  A 
promisee  cannot,  however,  both  sue  upon  the  breach, 
and  also  keep  the  contract  open,  [p  334,  col.  1  ] 

Frost  v.  Knight,  (1872)  7  Ex.  Ill;  41  L.  J.  Ex.  78;  26 
L  T.  77;  20  W.  R  471,  followed. 

Where  one  party  to  a  contract  by  acts  and  conduct 
evinces  an  intention  no  longer  to  be  bound  by  it,  the 
other  party  will  be  justified  in  regarding  himself  a» 
having  been  emancipated  [p.  334,  col.  2.] 

A  party  cannot  repudiate  a  contract,  wait  a  long 
time  and  then  suddenly  insist  upon  its  performance, 
long  delay  coupled  with  repudiation  will  amount  to 
conduct  giving  rise  to  an  implication  of  abandonment 
of  the  contract  [ibid  ] 

Pearl  Mill  Co.  v.  Ivy  Tannery  Co.,  (1919)  1  K.  B. 
78,  88  L,  J,  K.  B,  134;  120  L.  T.  28;  24  Com.'  Gas.  189, 
relied  on. 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Chifctor, 
in  A.  S.  No.  282  of  1921,  (A  S.  No.  138  of 
1921,  on  the  file  of  the  District  Court, 
Chittor),  preferred  against  that  of  the 
Court  of  the  District  Munsif,  8holinghurf 
in  0,  S.  No,  55  of  1920. 


334 


SAKHARAM  V.  SHEORAM, 


Mr.  C.  V,  Ananta  Krishnier,  for  the  Ap- 
pellants. 

Mr.  S.  Jagadisa  Iyer,  for  the  Respond- 
ents. 

JUDGMENT.— This  is  a  second  ap- 
peal from  the  decree  in  A.  8.  No.  282  of 
1921,  on  the  file  of  the  Subordinate  Judge 
of  Chittor,  preferred  against  the  decree  in 
0.  8.  No.  55  of  1920,  on  the  file  of  the  Court 
of  the  District  Munsif  of  Sholinghur.  Both 
the  lower  Courts  have  dismissed  their  suit 
and  plaintiffs  appeal. 

A  Chetti  firm  contracted  with  a  Mudali 
firm  to  supply  the  Mudali  firm  with  twenty- 
five  bales  of  yarn:  Exs.  A  and  A-l.  Ou 
24th  October  1918,  the  Mudali  firm  wrote 
Ex,  II  cancelling  the  contract  because  the 
supply  had  been  irregular.  The  Chetti 
firm  not  accepting  this  cancellation  gave 
notice  -of  suit  and  in  due  course  filed  0. 
8.  No.  27  of  1919  in  the  Court  of  the  Dis- 
trict Munsif  of  Chittor.  The  matter  was 
referred  to  arbitration  and  apparently  settl- 
ed by  award,  but  the  award  is  not  in 
evidence.  Then  on  9th  December  1919, 
the  Mudali  firm  wrote  Ex.  D  to  the  Chettis 
that  under  the  previous  contract  they  were 
still  bound  to  supply  them  with  Hi  bales, 
and  if  these  were  not  supplied  within  two 
days,  they  would  file  a  suit.  Hence  the 
present  suit  brought  by  the  Mudali  firm, 
the  plaintiffs  and  appellants. 

The  point  taken  in  this  appeal  is  that 
the  contract  was  never  cancelled  and  the 
appellants  rely  for  this  position  upon 
Frost  v.  Knight  (1).  There  it  is  Jaid 
down  at  page  112*,  that  if  one  party  to 
a  contract  repudiates  it,  the  promisee 
may  treat  the  repudiation  as  inoperative, 
and  at  the  end  of  the  period  of  the  contract, 
treat  the  other  party  as  responsible  for  all 
the  consequences  of  non-performance,  there- 
by keeping  the  contract  alive,  or,  on  the 
other  hand,  he  may  treat  the  repudiation 
as  a  wrongful  putting  an  end  to  the  con- 
tract, and  may  at  once  bring  his  action  as 
on  a  breach  of  it.  The  Ohetti  firm  evi- 
dently adopted  the  latter  alternative  when 
it  brought  0.  8.  No.  27  of  1919.  But  rely- 
ing upon  a  passage  in  the  plaint  of  that 
suit,  the  appellants  would  have  it  that  the 
Chettis  availed  themselves  of  both  alterna- 
tives. They  sued  upon  the  breach  of  the 
contract,  and  in  the  same  breath  kept  it 
open,  because  in  para,  11  of  their  plaint 

(1)  (1872)  7  Ex,  111;  41  L,  J.  Ex.  78;  26  L.  T.  77;  20 

W.  R.  471. 

of  (JL872)  7  Ex,— [Ed,]  """" 


[92  I/O.  19*6] 

there  is  a  statement  that  they  were  still 
entitled  to  deliver  the  rest  of  the  bales. 
The  short  answer  to  this  is  that  they  had 
no  right  'to  make  any  such  reservation. 
Frost  v.  Knight  (LJ,  is  recognised  authority 
prescribing  the  remedies  open  to  a  promisee 
and  he  cannot  both  sue  upon  the  breach  and 
also  keep  the  contract  open. 

The  appellants  then  proceed  to  argue 
that,  if  so  much  must  be  conceded,  the 
Chetti  firm  closed  the  first  portion  of  the 
contract,  but  re-opened  a  new  contract 
by  their  llth  para.  This  plea  can  have 
no  force  unless  the  Mudali  firm  can  show 
its  acceptance  of  this  fresh  tender,  and  so 
far  from  accepting  it,  that  firm  in  its  written 
statement  utterly  repudiated  the  llth  para, 
as  false  (Ex.  Ill,  para.  II).  Therefore, 
there  was  no  fresh  contract  between  the 
parties. 

Apart  from  contesting  this  plea  of  the 
plaintiffs,  the  respondents  have  a  good  case 
as  set  forth  in  para.  8  of  their  written 
statement  by  way  of  waiver  and  estoppel. 
A  party  cannot  repudiate  a  contract,  wait 
a  year,  and  then  suddenly  insist  upon  its 
performance.  The  question  turns  upon 
whether  his  conduct  gives  rise  to  an  impli- 
cation of  abandonment  [c/.  Pearl  Mill 
Co.  v.  Ivy  Tannery  Co.  (2).]  Delay  coupled 
with  repudiation  does  give  rise  to  such  an 
implication.  "  Where  one  party  by  acts 
and  conduct  evinces  an  intention  no  longer 
to  be  bound  by  the  contract,  the  other 
party  will  be  justified  in  regarding  himself 
to  be  emancipated:11  Halsbury's  Laws  of 
England,  Vol.  VII,  para.  $65. 

For  the  above  reasons  the  appeal  is 
dismissed  with  costs. 

v.  N.  v.  Appeal  dismissed. 

N.  H. 

(2)  (1919)  1  K,  13.  78;  88  L,  J.  K.  B.  134;  120  L.  T, 
28;  24  Com,  Cas,  169. 


NAGPUR  JUDICIAL  COMMIS- 
SIONERS COURT, 

APPEAL  FROM  APPELLATE  DECREE  No.  109-B 

OP  1924. 
April  14,  1925. 

Present:— Mr.  Kotval,  A.  J.  0. 

SAKHARAM  AND  ANOTHEK — DEFENDANTS 

—APPELLANTS 

versus 

SHEORAM — PLAINTIFF— RESPONDENT. 

Berar  Land  Revenue  Code,  1896,  8.  2 10 —Sale  to 

occupant  and 


[92  I.  C. 


KHAZAN  SINGH  V.  UMRAO  SINGH. 


335 


Where  a  co-occupant  in  a  surrey  number  sells  his 
share  in  the  survey  number  to  a  co-occupaut  and  a 
stranger,  the  sale  cannot  be  described  as  being  one  in 
favour  of  a  co-occupant  and  s  210  of  the  bernr  Land 
Ke  venue  Code  has  no  application  to  such  a  case.  ^ 

Appeal  against  a  decree  of  the  Additional 
District  Judge,  Amraoti,  dated  the  22nd  of 
February  1924,  reversing  that  of  the  Second 
Class  Subordinate  Judge,  Morsi,  dated  the 
24th  of  October  1923, 

Mr.  D.  T.  Mangalmoorti,  for  the  Appel- 
lants. 

Mr.  W.  R.  Puranik,  for  the  Respondent. 
JUDGMENT.—  The  plaintiff  is  a  co- 
occupant  of  survey  No.  1.  Bhojaji  and 
Sitaram,  the  owners  of  Pot-hissa  No.  2  in 
the  same  survey  number  sold  their  share  to 
defendants  Nos.  1  and  2  on  the  2nd  May 
1922,  without  giving  notice  to  the  plaintiff. 
Plaintiff,  therefore,  claims  to  pre-empt  Pot- 
hissa  No  2.  . 

The  defendants  admit  that  the  plaintiff 
is  a  co  occupant  in  survey  No.  1.  They 
plead  that  defendant  No.  2  has  acquired 
no  interest  by  the  purchase,  his  name 
having  been  nominally  inserted  in  the  sale- 
deed,  and  that  defendant  No.  1  having  a 
share  in  Pot~hissa  No.  6  which  his  father 
acquired  on  the  10th  April  1916,  by  pur- 
chase, the  plaintiff  cannot  claim  pre-emp- 
tion under  s.  210,  Berar  Land  Revenue 
Code. 

The  finding  of  the  lower  Appellate  Court 
is  that  the  purchase  was  solely  for  the 
benefit  of  defendant  No.  2  and  that  he 
was  not  a  purchaser  merely  in  name.  No 
reason  has  been  shown  why  the  finding 
should  not  be  upheld. 

On  the  above  finding  there  is  no  room 
for  the  application  of  s.  210  since  defend- 
ant No  2,  the  real  purchaser,  is  not  a  co- 
occupant  in  the  survey  number. 

Assuming  that  both  the  defendants  are 
purchasers  and  defendant  No.  1  is  a  co- 
occupant,  still  s.  210  will  not  apply,  for  the 
transfer  is  not  to  a  person  already  a  co- 
occupant,  but  to  a  body  consisting  of  a  co- 
occupant  and  a  stranger  which  cannot  be 
called  a  co-occupant, 

There  is  no  question  here  under  s.  AM  ol 

priority  in  pre-emption,  because  defendant 

No.  1  does  not  claim  pre-emption  against 

defendant  No.  2.  t 

The  appeal  fails  and  is  dismissed  with 

costs.  ,,     .      . 

$t  KB  Appeal  dismissed. 


ALLAHABAD  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  60  OP  1922. 

June  10,  1924. 

Present: — Mr.  Justice  Sulaiman 

and  Mr.  Justice  Kanhaiya  Lai. 

Chaudhri  KHAZAN  SINGH  AND 

ANOTHER— PLAINTIFFS— APPELLANTS 

versus 

Chaudhri  UMRAO  SINGH  AND  OTHERS 
— DEFENDANTS— RESPONDENTS. 

Custom—Pre-emption — Village  Badnauli>  Tahsil 
H&pur,  Meerut  District. 

A  custom  of  pre-emption  exists  in  village  Badnauli, 
Tahsil  Hapur,  Meerut  District,  [p.  338,  col.  1.] 

First  appeal  from  a  decree  of  the  Sub- 
ordinate Judge,  Meerut. 

Messrs.  Nehal  Chand  and  Harendra 
Krishna  Mukerji,  for  the  Appellants. 

Messrs.  Nehal  Chand  Vaish  and  Surendra 
Nath  Gupta,  for  the  Respondents. 

JUDGMENT.— This  is  a  plaintiffs' 
appeal  arising  out  of  a  suit  for  pre-emption. 
The  defendants  Nos.  I  and  2  by  a  sale- 
deed,  dated  the  15th  of  July  1920,  transfer- 
red their  shares  in  village  Badnauli  in 
Tahsil  Hapur,  District  Meerut,  in  favour 
of  two  sets  of  defendants.  Half  of  the  pro- 
perty was  transferred  to  defendants  Nos.  3 
to  7  and  the  other  half  to  defendants  Nos.  8 
to  12.  There  is  a  clear  specification  of  this 
in  the  sale- deed.  The  plaintiffs  alleged 
in  the  plaint  that  under  a  custom  of  pre- 
emption existing  in  the  village  they  were 
entitled  to  pre-empt  as  against  the  defend- 
ants who  were  strangers  to  the  mahal. 
As  to  the  sale  consideration  it  was  alleged 
that  out  of  the  sum  shown  before  the  Sub- 
Registrar  a  sum  of  Rs.  2,OUO  was  actually 
returned  afterwards  and  was  a  fictitious 
item.  It  was  further  asserted  that  the  pro- 
perty sold  covered  standing  sugar-cane  crop 
of  the  value  of  Rs.  1,500  which  had  since 
been  appropriated  by  the  vendees. 

The  defendants  vendees  denied  the  exist- 
ence of  any  custom  of  pre-emption  and 
also  asserted  that  the  sale  consideration 
mentioned  in  the  sale-deed  was  true. 

We  may  note  that  a  considerable  por- 
tion of  the  sale  consideration  mentioned  in 
the  sale-deed  was  left  in  the  hands  of  the 
vendees  for  payment  to  certain  specified 
creditors. 

The  learned  Subordinate  Judge  has  held 
that  the  evidence  produced  by  the  plaintiffs 
is  insufficient  to  establish  that  a  custom  of 
pre-emption  existed  in  this  village.  On 
this  finding  the  suit  has  been  dismissed  in 
Mo,  He  has,  however,  gone  on  to 


336 


MifcAN  SINGH  V.  tfMRlO  SlNGH, 


findings  on  the  other  issues  which  arose  in 
the  case  and  has  come  to  the  conclusion 
that  it  is  not  established  by  the  plaintiffs 
that  a  sum  of  Rs.  2,000  was  returned  by 
the  vendors  after  registration.  He  has  also 
come  to  the  conclusion  that  the  value  of 
sugar-cane  crop  was  only  Es.  1,000  and  not 
Rs.  1,500  and,  therefore,  Rs.  1,000  would  have 
to  be  deducted  from  the  sale  consideration. 
There  was  also  an  allegation  by  the  plaint- 
iffs that  the  defendants  vendees  had  cut 
away  certain  trees  of  wild  growth  worth 
Rs.  150,  but  this  was  not  substantiated  by 
any  evidence. 

The  plaintiffs  have  come  up  in  appeal 
before  us  and  two  main  points  arise  for  con- 
sideration, (1)  The  existence  or  non-exist- 
ence of  the  alleged  custom  of  pre-emption 
and  (2)  the  amount  of  sale  consideration. 

In  support  of  the  alleged  custom  of  pre- 
emption the  plaintiffs  relied  on  the  wajib- 
ul-arz  of  Ib70  prepared  by  Mr.  Nasir  Ali,  a 
Settlement  Deputy  Collector.  They  also 
relied  on  two  suits  for  pre-emption  institut- 
ed in  1886  and  in  1892  respectively.  The 
defendants,  on  the  other  hand,  produced 
what  purports  to  be  a  wajib-ul-arz  prepared 
by  Mr.  Mohar  Singh  another  Settlement 
Deputy  Collector,  and  of  which  the  learned 
Subordinate  Judge  says  the  year  is  1860. 
The  document  which  is  produced,  however, 
bears  no  such  date.  The  defendants  also 
produced  a  rubkar  of  1836  drawn  up  by 
Sir  Henry  Elliot  and  the  dastur  dehi  pre- 
pared by  Mr.  Gillan  for  1303  Fasti.  The 
last  two  documents  do  not  contain  any  men- 
tion of  the  right  of  pre-emption. 

The  learned  Subordinate  Judge  has 
made  a  great  point  against  the  plaintiffs  by 
pointing  out  that  there  are  some  variations 
in  the  entries  regarding  the  right  of  pre- 
emption as  contained  in  the  wajib-ul-arzes 
prepared  by  Mr.  Mohar  Singh  and  Mr. 
Nasir  Ali  respectively.  It  is  necessary  for 
us  to  consider  as  to  the  exact  nature  of  the 
wajib-ul-arz  prepared  by  Mr.  Mohar  Singh. 
In  this  document,  it  is  shown  that  the  entire 
village  had  been  settled  with  Girwar  Singh, 
lambardar,  from  the  year  1242  Fasli  to  the 
year  1262  Fasli  (corresponding  to  1835- 
1855  A.  D.).  It  goes  on  to  say  that  subse- 
quently as  sanctioned  by  the  Board  of  Reve- 
nue the  term  of  theSettlement  was  extended 
by  a  further  period  of  10  years  and  the 
aforesaid  revenue  was  maintained..  It  is 
clear,  therefore,  that  the  Settlement  which 
was  made  by  Sir  Henry  Elliot  in  1835  con- 
tinued.till  1865.  The  wajib-ul-arz  prepared 


[92  L  0. 1926J 

by  Mr.  Mohar  Singh  is  said  to  have  been 
prepared  in  the  year  1860.  A  reference  to  thie 
Gazetteer  of  the  District  of  Meerut  shows 
that  after  theSettlement  of  Sir  Henry  Elliot 
the  next  regular  Settlement  was  made  by 
Mr.  Forbes  and  Mr.  Porter  between  the 
years  1865  and  1870.  It  is  quite  clear  that 
there  was  no  Settlement,  in  the  strict  sense 
of  the  word,  in  the  year  1860.  It  is,  there- 
fore, impossible  to  regard  the  wajib-ul-arz 
prepared  by  Mr.  Mohar  Singh  as  the  final 
Record  of  Rights  prepared  at  the  Settlement. 
There  are  no  materials  on  the  record  to 
show  when  the  Settlement  which  was  com- 
pleted in  1870  actually  commenced.  It  is 
possible  that  some  preliminary  operations 
may  have  deen  started  in  18(50  in  course  of 
which  the  wajib-ul-arz  drawn  up  by  Mr. 
Mohar  Singh  might  have  been  prepared. 
The  clause  containing  the  verification  is  not 
filed  and  it  is  difficult  to  say  whether  that 
wajib-ul-arz  represents  a  final  record  of  a 
custom  or  contract  enforceable  in  the  village. 
It  is  possible  that  the  wajib-ul-arz  of  1870 
may  be  the  revised  and  corrected  record. 

In  this  view  of  the  nature  of  the  docu- 
ment it  cannot  be  seriously  urged  that  the 
presumption  arising  from  the  entry  in  the 
wajib-ul-arz  of  1870  which  was  admittedly 
a  Settlement  period,  has  been  negatived  by 
a  different  entry  contained  in  Mr.  Mohar 
Singh's  document. 

The  defendants  have  also  produced  a 
rubkar  issued  by  Sir  Henry  (then  Mr. 
Henry)  Elliot,  dated  the  25th  of  February 
1846,  which  contains  no  reference  to  any 
right  of  pre-emption.  That,  however,  is  not 
the  complete  wajib-ul-arz.  The  defendants 
further  relied  on  the  absence  of  any  entry 
of  a  right  of  pre-emption  in  the  dastur  dehi 
prepared  by  Mr.  Gillan  in  the  subsequent 
Settlement.  As  to  this  we  may  point  out 
that  Mr.  Gillan's  Settlement  was  completed 
in  the  year  1901  and  the  settlement  of  Tahail 
Hapur  came  into  effect  in  1898  (vide  page 
132  of  the  Gazetteer).  On  the  19th  of  No- 
vember, 1897,  however,  a  fresh  set  of  Settle- 
ment Rules  had  been  issued  by  the  Board  of 
Revenue  under  which  directions  were  given 
to  Settlement  Officers  to  make  certain 
entries  in  the  Record  of  Rights.  A  com- 
parison of  the  directions  then  issued  with 
the  previous  directions  makes  it  clear  that 
no  specific  authority  was  given  to  Settle- 
ment Officers  to  make  an  entry  of  custom 
like  pre-emption,  prevailing  in  the  village 
other  than  those  covered  by  certain  speci-* 
fied  clauses.  Accordingly  under  the 


(92  I.  0.  1928]  fcHAZAN  SINGH 

yules  no  entry  was  ordinarily  to  be  made 
by  the  Settlement  Officers  as  regards  a 
custom  of  pre-emption  and  it  is  on  this  ac- 
count that  in  wajib-ul-arzes  prepared  sub- 
sequent to  1897  there  is.no  mention  of  any 
such  rights  either  way.  The  omission,  there- 
lore  is  not  so  conclusive. 

We  are,  therefore,  left  with  the  entry  in 
the  wajib-ul-arz  of  the  year  1870,  which 
was  of  the  second  regular  Settlement,  and 
which  contains  a  clear  recital  of  a  right  of 
pre-emption.  Paragraph  17  states  that  if  any 
share-holder  wishes  to  sell  his  share  he  can 
do  so  first  to  his  bhai  hakiki  (Own  brothers), 
then  to  qaribi  (near)  and  then  to  share- 
holders in  the  thok.  If  the  share-holders 
in  the  thok  refuse  to  purchase  it  the  vendor 
is  at  liberty  to  transfer  it  to  any  share-holder 
of  the  village.  Then  follows  a  clause  regard- 
ing the  settlement  of  price  by  arbitration 
in  case  of  a  dispute.  This  entry  raises  a 
prima  facie  presumption  of  the  existence 
of  a  custom  of  pre-emption.  This  wajib- 
ul-arz  was  prepared  at  the  time  when  the 
Board's  Circular  No.  24  of  1868  had  come 
into  effect,  under  which  the  Settlement 
Officers  were  expressly  authorised  to  make 
entries  as  regards  customs  prevailing  in  the 
village.  We  are,  therefore,  entitled  to  pre- 
sume that  this  entry  is  a  record  of  custom. 
There  is  nothing  in  the  previous  or  sub- 
sequent history  of  the  village  which 
necessarily  negatives  the  existence  of  such 
a  custom.  All  that  is  shown  is  that  the 
village  was  settled  with  Girwar  Singh, 
lambardar.  There  may  have  been  many 
other  co-sharers  besides  Girwar  Singh  and 
in  any  case  he  may  have  represented  a 
joint  Hindu  family.  There  is,  therefore,  no 
ground  for  holding  that  during  this  period 
the  entire  village  was  owned  by  a  single 
proprietor.  As  to  the  circumstances  that 
various  other  proprietors  became  co-sharers 
between  1860  and  1870  wemay  point  out  that 
the  Gazetteer  at  page  130  mentions  that  in 
Hapur  old  proprietors  were  replaced  to  the 
extent  of  20  per  cent,  mainly  by  money- 
lenders, that  no  less  than  69  estates  were  con- 
fiscated owing  to  the  action  of  proprietors 
during  the  Mutiny,  and  of  these  49  were  sold 
by  auction  and  16  were  given]away  in  reward 
while  4  were  held  for  a  time  under  the  direct 
inanagement.  Therefore,  it  might  well 
have  been  that  some  of  these  strangers  be- 
came co-sharers  by  purchases  at  auction. 

The  learned  Subordinate  Judge  has  been 
influenced  by  two  main  points  The  first 
&  that  the  preamble  of  the  wajib*ul-arz  in- 


V.  UMftAO 


337 


dicates  that  it  was  a  record  of  an  agreement. 
The  inference  is  not  quite  correct  because 
all  wajib-ul-arzes  are  in  stereotyped  forms 
and  contain  similar  preambles:  vide  Re- 
turaji  Dubain  v.  Pahalwan  Bhagat  (1).  They 
are  primarily  records  of  engagements  of 
co-sharers  with  the  Government  for  pay- 
ment of  Government  revenue.  The  second 
circumstance  relied  on  is  a  supposed  varia- 
tion between  the  wajib-ul-arzes  of  1860  and 
1870.  As  to  this  we  have  already  stated 
that  the  wajib-ul-arz  of  1860  cannot  be 
regarded  as  a  complete  and  final  record  of 
any  regular  Settlement.  In  any  case  the 
variation  does  not  make  the  two  wajib-ul- 
arzes  necessarily  contradictory.  In  the 
wajib-ul-arz  of  Mr.  Mohar  Singh  the  right 
of  pre-emption  was  given  first  to  the  true 
brother,  then  to  a  near  brother,  but  not 
specifically  to  a  co-sharer.  It  is,  however, 
to  be  noted  that  in  that  year  there  might 
have  been  no  other  co-sharers  but  the  three 
brothers  Baldeo  Singh,  Jagdish  Singh  and 
Gurdayal  Singh,  sons  of  Girwar  Singh, 
whose  names  are  entered  in  the  opening 
portion  of  the  wajib-ul-arz.  This  circum- 
stance might  explain  the  omission  of  a  re- 
ference to  co  sharers.  The  other  discre- 
pancy relied  upon  is  that  under  the  first 
wajib-ul-arz  a  right  was  given  in  the  case 
of  transfer  by  mortgages  as  well  as  sales, 
whereas  in  thewajib-ul-arzof.  1870  the  right 
was  confined  to  sales  and  it  was  expressly 
stated  that  there  was  no  right  of  pre-emp- 
tion as  regards  mortgages.  We  may  say 
that  even  if  a  custom  of  pre-emption  as 
regards  mortgages  had  existed  in  1860  there 
was  nothing  to  prevent  the  co-sharers  in  1870 
from  abrogating  that  part  of  the  custom, 

The  plaintiffs  relied  on  two  pre-emption 
suits  in  order  to  show  that  claims  of  pre- 
emption had  been  asserted.  In  1386  a  suit 
was  instituted  for  pre-emption  and  in  pard. 
3  of  the  plaint  it  was  expressly  alleged  that 
according  to  the  terms  of  the  wajib-ul-arz 
and  the  custom  of  the  village  the  plaintiffs 
were  entitled  to  claim  pre-emption.  In  the 
written  statement  which  was  filed  the 
substantial  plea  taken  was  that  the  plaint- 
iffs were  not  proprietors  at  ail  and  there 
was  no  express  denial  of  the  existence 
of  a  custom  of  pre-emption.  This  suit 
is  said  to  have  been  ultimately  with- 
drawn and  is,  therefore,  not  of-  very  great 
importance.  The  second  suit  was  instituted 
in  the  year  1892  where  the  plaintiff  merely 
iH^rlt  1  Ilia1  lio  had  a  right  of  pre-emption, 

,-    i:.  i  Os  «a  J.  33  A,  196;  7  A.  L,  J,  1040. 


338 


M4HAR4J  DHIRAJ  OF  DARBHAKfelA  f.  COMMISSIONER  OF  INCOME  TAX.  [92  1.  <J. 


not  expressly  mentioning  that  there  was  a 
custom  under  v\hich  this  right  existed. 
That  suit  also  was  ultimately  dismissed  on 
the  ground  that  the  plaintiff  was  not  the 
absolute  proprietor  by  virtue  of  which  she 
was  claiming  pre  emption.  As  the  Settle- 
ment of  1870  was  then  in  force  no  conclusive 
inference  can  be  drawn  from  this  litigation 
also.  Having  regard,  however,  to  the  entry 
in  the  wa^ib^Ul-am  of  1870  which,  in  our 
opinion,  stands  unrebutted,  ue  must  hold 
that  the  custom  of  pre-emption  exists  in  tlr's 
village. 

As  regards  the  sale  consideration,  the 
finding  of  the  learned  Subordinate  Judge 
that  there  is  no  satisfactory  evidence  that 
Rs.  2,000  were  returned  after  registration, 
cannot  be  seriously  challenged.  We  are 
satisfied  that  that  finding  must  be  accepted. 

The  learned  Vakil  for  the  plaintiffs  has 
not  challenged  the  finding  that  theie  is  no 
satisfactory  evidence  to  prove  that  dhak 
and  other  kind  of  timber  worth  Rs.  150  had 
been  removed  by  the  defendants  vendees. 
Theiefore  this  finding  must  also  stand. 

On  behalf  of  the  defendants  there  is  no 
cross-objection  with  regard  to  the  finding 
that  out  of  the  sale  consideration,  sugar- 
cane crops  worth  Rs,  1,01)0  had  been  appro- 
priated by  the  vendees.  So  this  finding  ol  the 
learned  Subordinate  Judge  also  must  stand. 

There  is,  however,  some  dispute  between 
the  parties  as  to  the  exact  amount  which 
has  been  paid  by  the  vendees  to  the  credit- 
ors named  in  the  sale-deed,  for  whom  money 
had  been  leit  in  the  hands  of  the  vendees. 
The  vendees  are  entitled  to  claim  from  ths 
plaintiffs  pre-emptors  only  that  much  of  the 
amount  which  they  have  actually  paid  to 
the  vendors  or  to  the  prior  creditors  named 
in  the  deed.  If  there  is  any  sum  still 
left  in  their  hands  for  payment  the 
plaintiffs  will  make  this  payment  as  they 
have  stepped  into  the  shoes  of  the  vendees. 

We,  accordingly,  allow  this  appeal  and 
setting  aside  the  decree  of  the  Court  below, 
decree  the  plaintiffs'  claim  for  pre-emption 
subject  to  the  payment  of  Rs.  21,000  to  be 
deposited  in  the  Court  below  within  two 
months  from  this  date.  Out  of  this  sum 
Rs.  1,000  will  be  paid  to  the  vendees,  and 
out  of  the  balance  of  Rs.  20,000  the  vendees 
will  be  entitled  to  get  as  much  as  they  have 
actually  paid  to  the  prior  creditors  mention- 
ed in  the  sale- deed.  The  balance  will  be 
paid  to  the  creditors  themselves  directly. 
In  case  of  default  of  payment  by  the  plaint* 
jiff s  within  the  time  specified  the  suit  shall 


stand  dismissed  with  costs  in  all  Courts. 
In  case  of  payment  within  the  time  allowed 
the  plaint  ills  will  get  their  costs  in  both 
the  Courts.  The  fees  in  this  Court  will  in- 
clude fees  on  the  higher  scale. 


z.  K. 


Appeal  dismissed. 


PATNA  HIGH  COURT. 

MlbCELIANEOUh  JUDICIAL  C^SE  No,  53 

OF  1923. 

December  2,  1924. 

Present: — Sir  Dawson  Miller,  KT., 

Chief  Justice,  and  Mr.  Justice  Foster. 

MAHARAJ  DHIRAJ  OF  DARBHANQA 

— APPELLANT 

versus 

THE  COMMISSIONER  OF  INCOME 
TAX— RESPONDENT. 

Bengal  Regulation  (XXV II  of  1793) — Permanent 
Settlement—  Income  from  jaJkar,  hat  and  ghatlaggi, 
whether  taken  into  account — Income,  whether  liable  to 
assessment  to  income-tax — Darbhanga  Raj. 

The  Permanent  Settlement  left  to  the  zemindar  the 
groxmd  rents  of  land,  shops,  etc.,  in  all  the  then  ex- 
isting hats  except  such,  if  any,  as  were  .specifically 
excluded  and  if  more  hats  are  now  shown  to  exist 
than  appear  in  the  Settlement  papers  it  must  be  pre- 
sumed, in  the  absence  of  evidence  to  the  contrary,  that 
they  have  sprung  up  since  the  Settlement.  If  they 
existed  at  the  time  of  Settlement  they  were  left  under 
the  general  regulations  to  the  zemindar  in  the  absence 
of  any  specific  exclusion  The  onus  is  not  on  the 
assessee  to  prove  inclusion  but  upon  the  Crown  to 
prove  exclusion,  [p,  341,  col.  1  ] 

The  Permanent  Settlement  Regulations  apply  as 
much  to  subsequently  settled  lands  as  to  lands  settled 
in  1793.  [p.  341,  col  2.J 

Where  a  ghat^  has  been  settled  with  a  zemindar,  the 
latter  has  the  right  to  collect  mooring  dues  as  well 
as  tolls  or  ferry  dues,  hbid.] 

The  income  derived  from  jalkar,  hat  and  ghatlaggi 
was  included  in  the  assets  of  the  Darbhanga  Raj 
when  the  jama  was  assessed  at  the  time  of  (he 
Permanent  Settlement,  and  such  income  is,  therefore 
not  liable  to  be  assessed  to  income-tax,  [p.  340,  col.  1.] 

Messrs.  K.  P.  Jayaswal  and  M.  Prasad, 
for  the  Appellant. 

The  Government  Advocate,  for  the  Re- 
spondent. 

JUDGMENT, 
Miller,  C.  J.— This  matter  came  before 


[92  I.  0.  132BJ       MAHARA^  DHIRAJ  OF  DARBHANGA  V.  COMMISSIONER  OF  INCOME  TAX. 


339 


the  Court  in  January  last  upon  a  refer- 
ence* by  the  Income  Tax  Commissioner  for 
determination  of  certain  questions  of  law, 
one  of  which  was  whether  income  derived 
from  jalkar,  hat  and  ghatlaggi  was  liable  to 
income-tax.  The  decision  of  the  Court  on 
that  occasion  was  that  if  these  items  were 
included  in  the  assets  when  the  jama  was 
assessed  at  the  time  of  the  Permanent 
Settlement  the  Income  Tax  Act  was  not 
sufficiently  specific  to  indicate  that  it  was 
the  intention  of  the  Legislature  to  vary  the 
bargain  made  at  the  time  of  the  Permanent 
Settlement  and  that  income  from  such 
sources  was  not  chargeable  to  income-tax. 
As  there  was  some  doubt,  however,  whe- 
ther jalkar,  hat  and  ghatlaggi  rights  had 
been  taken  into  account  as  part  of  the  assets 
of  the  assessee1^  zemindari  in  assessing  the 
jama  at  the  time  of  the  Settlement  the  case 
was  remitted  to  the  Income  Tax  Commis- 
sioner to  determine  the  question  of  fact 
whether  the  jalkar,  hat  and  ghatlaggi  rights 
in  respect  of  which  the  exemption  was 
claimed  did  form  a  part  of  the  assets  taken 
into  consideration  in  settling  the  jama  at 
the  date  of  the  settlement  with  predecessors 
in  title  of  the  assessee. 

The  Commissioner  of  Income  Tax  has 
considered  the  question  submitted  to  him 
and  has  made  a  report  containing  his  find- 
ings. These  findings,  however,  have  been 
qualified  incertain  respects  and  the  assessee 
now  challenges  the  qualifications  upon 
various  grounds.  With  regard  to  the 
jalkar  or  fishery  rights  no  serious  question 
arises.  The  Commissioner  finds  that  jalkar 
was  included  in  the  assets  of  the  Permanent 
Settlement  and  points  out  that  in  the  rules 
for  the  resumption  of  sayer  passed  in  1790 
which  are  referred  to  in  Regulation  XX VII 
of  1793  the  rights  of  phalkar,  bankar  and 
jalkar,  were  exempted  from  the  resump- 
tion and  remained  vested  in  the  land- 
holders. He  has  submitted  an  opinion, 
however,  at  <he  end  of  his  report  that  under 
Art.  2  of  Regulation  I  of  1793  it  was  only 
the  jama  assessed  upon  the  lands  which 
was  fixed  for  ever  and  that  there  was  no 
undertaking  not  to  enhance  the  assessment 
upon  incorporeal  rights,  whether  or  no,  the 
assets  of  such  rights  were  included  in  the 
Permanent  Settlement.  In  offering  this 


*See  Maharaj  Dhiraj  of  Darbhanga  v.  Commissioner 
cf  Income  Tax,  78  lad.  Gas.  783,  2  Pat.  L.  R.  25  Or.; 
hm)  Pat,  69;  3  Pat.  470;  3  P.  L,  T,  459;  (1924)  A,  I 
».  (Pat.)  474,-lSd] 


opinion  the  Commissioner  appears  to  me  to 
be  tiavelling  outside  his  province.  Tina 
question  was  determined  by  the  Court  ori 
the  previous  occasion  and  after  considera-. 
tion  of  the  Regulation  relating  to  the 
subject. 

With  regard  to  hat  or  markets  his  general 
finding  is  that  in  so  far  as  hats  or  gunjts 
are  concerned  the  general  Regulations  leave 
the  zemindar  the  right  to  take  ground  rents 
and  if  the  assessee  is  now  being  taxed  only 
in  respect  of  ground  rents  it  is  not  neces- 
sary to  consider  his  claims  based  on  speci* 
fie  documents.  There  can  be  no  doubt 
from  a  perusal  of  Regulation  XXVII  of 
1793  that  in  resuming  the  sayer  the  Govern- 
ment did  not  intend  to  divest  the  land- 
holders of  collections  made  by  them  as 
consideration  for  the  use  of  grounds,  shops 
or  other  buildings  belonging  to  them  and 
that  ground  rents  whether  in  markets  or 
in  other  parts  of  the  zemindari  were  the 
exclusive  property  of  the  zemindar.  The 
Regulation  states  "In  the  adoption  of  the 
above  arrangements,  the  Governor- General- 
in-Council  had  no  intention  to  divest  the, 
land-holders  of  any  collection  they  had 
made,  under  the  denomination  of  sayer 
not,  in  reality  a  duty  but  a  consideration 
for  the  use  of  grounds,  shops,  or  other 
buildings  belonging  to  them.  As,  however^ 
the  rent  of  warehouses  (golah)  and  shopa 
(dokans)  had  in  general  been  received  by 
the  officers  employed  to  collect  the  gunje^ 
hat,  and  bazar  duties,  and  had  frequently 
been  let  in  farm  with  them,  and  as  the  rent 
paid  for  orchards,  pasture  ground  and 
fisheries  had  been  sometimes  included  in  the 
sayer  under  the  denominations  of  phulkar, 
bankar,  and  jalkar ,  the  Governor  General 
in-Council  thought  it  necessary  to  declare 
expressly,  that  it  was  by  no  means  his  inten- 
tion to  include  in  the  resumption  of  the  sayer 
then  ordered,  the  monthly  or  annual  renta 
paid  for  grounds,  or  buildings  erected 
thereop,  of  whatever  description  or  the 
phulkar  bankar,  and  jalkar,  such  renta 
being  properly  the  private  right  of  the 
proprietors,  and  in  no  respect  a  tax  or  duty; 
on  commodities,  the  exclusive  right  of 
Government."  The  exemptions  claimed  in 
respect  of  hats  in  the  present  case.  are. 
claimed  as  income  derived  from  ground 
rents  of  the  land  or  house  in  the  hats.  The 
Commissioner,  however,  is  apparently  not 
satisfied  that  the  rent  so  received  by  the 
assessee  did  not  include  some  illegal  ex- 
actions in  the  nature  of  internal  duties  9J, 


340  MAHARAJ  DHIRAJ  OF  DARBHANOA  V.  COMMISSIONER  OF  INCOME  TAX. 


tolls  which  were  reserved  by  the  Permstn- 
fent  Settlement  as  the  exclusive  property  of 
Government.       He    says    "It    is    common 
knowledge    that  wherever  bazai*  dues  are 
realised  not  only  ground  rent  id  collected 
Hut  also  other  ditties,  whifch  may  be  levied 
Either  on  every  person  who  brings  goods 
iato  the  bazar   or   from    both    purchaser 
and  seller'in  every  transaction  or  in  other 
Ways.    No  doubt,  the  zemindar  who  lets  out 
a  bazar  in  thicca  does  not  himself  collect 
internal  duties  but  I  think  it  is  safe  to  say 
that  the  thiccadar  invariably    does.    In   so 
far  as  this  question  is  one  of  fact    no  evi- 
dence whatever  has  been  offered  that  the 
zemindar's    receipts  for    bazar  settlement 
are  really  ground   rents.    If  they  are  not 
ground  rents  the  assessee  has  to  prove  that 
these  internal  duties  were  included  in  the 
assets  of  the  Permanent  Settlement.    In  my 
opinion  he  has  failed  to  do  this/*    Whether 
by  this  finding  the  learned  Commissioner 
intends  to    exclude   from    exemption*  the 
whole  of  the  income  derived  from  hats  or 
only  a    portion  thereof   is   by  no    means 
clear,  but  in  his  summary   of  his  findings 
at  the  end  of  his  report  it  would  appear 
that  he    intended  to  find  that  the  ground 
tent  of  the  gunjes  or  markets   specifically 
mentioned  in  the  Schedule  prepared  at  the 
time  of   the    settlement  were  included  in 
the    assets    although  it  would  seem  that 
his   view  is  that   such   ground   rents  as 
Were  not  specifically  mentioned    were  not 
included.    Nor    does     he    arrive    at    any 
definite  findings  as  to  how  much  of  the 
Exemptions    claimed    may  be  justified  as 
ground  rents  or    how  much    he    regards 
ftd  payment  in    respect  of  internal  duties. 
It  seems  to  me,   however*  that  the    Com- 
toissiner  is    not   entitled    to    deprive,  the 
ftssessee  of  his  right  to  exemption  of  income 
Deceived  by  him  as  ground  rent  payable 
by  the  lessee   for  the  land  and  houses  in 
the  markets.    It  is  quite  clear   from  the 
Regulation  that  these  ground  rents  were  in- 
bluded  in  the  assets  as  the  property  of  the 
temindar  at  the  time  of  settlement  and  the 
mere  fact  that    the    lessee  may    in  some 
instances    abuse     his  rights   and   enforce 
illegal   exactions   from     those   using   the 
markets,  is  not  itself   any  ground  for  dep- 
riving the  zemindar  of  his  legal   rights. 
The  rents  from  markets   are,  1  think,  just 
ad  much  mal  rents  as  the  rent  from  agricul- 
tural  or  any  other  species  of  land.    The 
exemptions  are  claimed   as  being  ground 
m   markets,  ferries  and  fisheries 


2  I.  0.  1926] 

and  if  the  Commissioner  is  not  satisfied 
thai  the  income  received  is  in  fact  ground 
rent  he  has  ample  power  to  call  upon  the 
asseesee  to  produce  his  books  or  other  docu- 
ments relating,  to  the  collections  and  to 
enforce  the  attendance  of  witnesses  to  give 
evidence  upon  a  question  about  which  he 
has  any  doubt  (seess.  22  (4)  and  37  to  39 
of  the  Income  Tax  Act,  1922),  The  Com- 
missioner may  if  he  thinks  fit,  investigate 
further  into  the  matter  by  calling  for  the 
production  of  evidence  or  documents  to 
show  the  exact  nature  of  the  collections 
made  under  the  head  of  ground  rents  for 
which  exemption  is  claimed  but  he  is  not 
entitled  on  mere  suspicion  to  assume 
that  that  which  was  received  in  the  name 
of  ground  rent  is  not  in  fact  that  which  it 
purports  to  be.  It  does  not  appear  that 
the  assesee  has  been  called  on  to  produce 
his  collection  papers  or  his  contracts  with 
the  thiccadars  which  would  show  the  nature 
of  the  income  derived  from  the  sources 
named. 

The  next  question  which  arises  on  these 
findings  is  that  the  Commissioner  itfould 
apparently  exclude  from  exemption  the 
ground  rents  in  respect  of  all  existing  hats 
except  those  specifically  mentioned  in  the 
settlement  papers  as  then  existing.  It  is 
hot  contended  that  the  ground  rents  of 
markets  which  ctaie  into  existence  sub- 
sequently to  the  Permanent  Settlement 
would  not  be  part  of  the  zemindar's  assets, 
but  the  Commissioner  points  out  that  in  the 
settlement  documents  relating  to  the 
different  parganas  of  the  assessees*  zemin- 
dari  only  a  few  hats  or  gunjes  are  specifi- 
cally mentioned  and  argues  from  this  that 
there  may  have  been  others  then  existing, 
and  still  subsisting  about  which  nothing 
is  said  and  which  were,  therefore,  not  in- 
cluded. It  is  probably  correct  to  say  that 
there  are  hats  now  existing  within  the 
Darbhanga  Raj  about  which  no  specific 
mention  is  found  in  the  settlement  papers, 
but  Regulation  ^  XX VI I  of  1793  is  so  clear 
and  emphatic  in  stating  that  such  rents 
were  to  be  retained  by  the  proprietors 
that  it  cannot  reasonably  be  presumed 
that  any  markets  then  existing  were  intend- 
ed to  be  excluded  without  specific  men* 
tion  of  the  fact  in  the  settlement  papers. 
I  do  not  think  that  any  inference  can  be 
drawn  that  any  markets  now  existing  in 
fact  existed  at  the  time  'of  the  Permanent 
Settlement  although  they  were  not  men* 
tioaed  in  the  settlement  papers. 


[92  t.  0.  1926J  MAHARAJ  DHIRAJ  OP  BAaflHANOA  V.  COMMISSIONED  OF  INCOME  TAX, 


341 


natural  and  only  proper  inference  appears 
to  me  to  be  the  exact  opposite,  for  we  find 
in  the  rules  for  the  resumption  of  sayer 
passed  on  the  17th  June  1790  and  set  out 
in  Regulation  XXVII  of  1793  the  following 
Article: — 

"2nd,  no  monthly  or  annual  payments 
now  made  or  which  may  be  hereafter  made 
for  the  use  of  the  land  or  houses,  shops  or 
other  buildings  lerected  thereon,  being 
clearly  of  the  nature  of  rents  and  not  duties 
or  taxes,  are  to  be  understood  to  be  within 
this  prohibition  but  all  such  rents  are  to 
be  enjoyed  by  the  proprietors  entitled  there- 
to as  heretofore." 

The  irresistible  inference,  therefore,  is 
that  the  settlement  left  to  the  zemindar  the 
ground  rents  of  land,  shops,  etc.,  in  all  the 
then  existing  hats  except  such,  if  any,  as 
were  specifically  excluded  and  if  more  hats 
are  now  shown  to  exist  than  appear  in  the 
settlement  papers  it  must  be  presumed,  in 
the  absence  of  evidence  to  the  contrary, 
that  they  have  sprung  up  since  the  settle- 
ment. If  they  existed  at  the  time  of  settle- 
ment they  were  left  under  the  general 
Regulations  to  the  zemindar  in  the  absence 
of  any  specific  exclusion.  The  onug  is  not 
on  the  assessee  to  prove  inclusion  but  upon 
the  Crown  to  prove  exclusion. 

The  learned  Commissioner  appears  also 
to  have  had  some  doubt  as  to  the  proper 
rendering  in  idiomatic  English  of  the 
word  "sewa"  where  it  appears  in  the  appli- 
cation of  the  asseasee's  ancestor  for  settle- 
ment of  Pargana  Hati  a  part  of  the  Dar- 
bhanga  Raj.  According  to  his  view  the 
proper  translation  of  the  word  was  "  with 
the  exception  of."  If  this  be  accepted  as 
accurate  he  thought  that  the  application 
excluded  settlement  of  gunjes  or  markets 
although  he  states  he  had  been  shown  a  dic- 
tionary dated  1802  prepared  under  the  orders 
of  the  East  India  Company  which  says  that 
the  word  may  also  mean  "in  addition  to." 
The  truth  is  that  the  meaning  of  this  word 
appears  to  depend  upon  the  context  in  which 
it  is  found  and  it  may  be  in  many  cases 
rendered  into  English  either  by  the  words 
"in  addition  to"  or  by  the  words  "apart 
from."  A  simple  example  may  be  given 
where  either  rendering  would  be  accurate 
in  English.  The  sentence**  apart  from  this 
house  1  have  many  others*'  might  equally 
well  be  expressed  by  saying,  "in  addition  to 
this  house  I  have  many  others."  The  matter, 
however,  is  not  one  of  much  importance  as 
it  is  clear  from  the  settlement  papers  that 


ground  rents  for  markets  as  distinguished 
from  tolls  or  other  internal  duties  inconneo* 
tion  therewith  were  included  in  the  sche- 
dule of  the  assets  settled  with  the  zemindar. 
In  fact  the  Commissioner  states,  "I  agree 
that  the  gunjes  mentioned  in  the  schedule 
must  apparently  be  included." 

With  regard  to  Pargana  Haveli  Kharag* 
pur  which  was  settled  for  20  years  in  1844 
and  permanently  settled  in  1866  the  Com- 
missioner has  pointed  out  that  although  the 
markets  were  included  in  the  settlement, 
the  Income  Tax  Act  of  1860,  was  then  in 
force  and  he  states,  "It  is  clear  that  non- 
agricultural  income  of  this  pargana  must 
have  been  assessed  or  at  least  assessable  to 
income-tax  under  the  Act  of  1850  and  there 
is  nothing  in  the  rubakar  of  1866  to  indicate 
that  such  income  would  in  future  be  ex- 
empted from  income-tax".  With  respect  to 
the  Commissioner  the  exemption  is  claimed 
under  the  Permanent  Settlement  Regula- 
tions which  apply  as  much  to  subsequently 
settled  lands  as  to  lands  settled  in  1793. 
Moreover  this  question  is  one  which  was 
disposed  of  by  this  Court  at  the  previous 
hearing  and  it  is  not  open  to  the  Commis- 
sioner to  re-open  that  decision. 

With  regard  to  ghatlaggi  it  is  agreed  that 
the  ghats  were  settled  with  the  assessee's 
ancestors.  The  Commissioner  takes  the 
view,  however,  that  settlement  of  ghats  ordi- 
narily means  the  right  to  collect  tolls  or 
ferry  dues  and  not  the  right  to  mooring 
dues.  In  my  opinion  this  is  giving  much 
too  narrow  a  construction  to  the  rights  in- 
cident  to  the  settlement  of  ghats.  The  pro- 
prietor is  just  as  much  "entitled  to  be"  paid 
for  the  use  of  the  ghats  for  purposes  of  moor- 
ing as  he  is  to  take  dues  from  those  using 
the  ghats  for  other  purposes. 

The  case  must  be  remanded  to  the  Com- 
missioner of  Income  Tax  to  be  dealt  with 
according  to  our  ruling  upon  the  questions 
dealt  with  in  this  judgment.  He  is  at 
liberty,  however,  if  he  should  think  fit,  to 
call  for  further  evidence  as  to  the  exact 
nature  of  the  exemptions  claimed  by  the 
assessee  under  the  head  of  ground  rents  for 
hats. 

It  is  necessary  to  deal  with  the  costs  of  the 
hearing  originally  as  well  as  the  hearing 
after  remand.  We  think  that  the  peti- 
tioner, having  substantially  succeeded  both 
in  the  original  petition  upon  the  case  stated 
and  in  the  application  to  us  after  remand, 
is  entitled  to  his  coats  and  we  assess  the 


342 


VENKU  8HKTT1THI  V.  RAMACHANDRAYYA, 


hearing  fee  in  respect  of  both   the  applica- 
tions together  at  a  sum  of  Rs.  500. 

Poster,  J.-  I  concur. 

z.  K,  Case  remanded. 


L92  L  0.  1^26  J 


MADRAS  HIGH  COURT. 

APPEAL  SUIT  No.  182  OP  1921. 

March  24,  1925. 

Present;— Justice  Sir  Charles  Gordon 

Spencer,  KT,,  and  Mr,  Justice  Ramesam. 

VENKU  SHETTITHI  AND  OTHERS— 

PLAINTIFFS — APPELLANTS 

versus 
T,  RAMACHANDRAYYA  AND  OTHERS 

— DEPENDANTS — RESPONDENTS. 
Limitation  Act  (IX  of  1908),  Sch.  7,  Art  13^  scope 
of— Transfer    by    mortgagee —Suit   for    redemption- 
Honest  belief  of  transferee — Limitation. 

In  every  case  where  Art  131  of  Sch  I  to  the  Limita- 
tion Act  is  set  up  as  a  defence  by  a  transferee  from  a 
mortgagee,  it  is  -material  to  see  what  interest  the 
mortgagee  purported  to  transfer,  and  where  both  the 
seller  and  purchaser  honestly  behoved  that  the  entire 
interest  of  an  owner  wavs  being  transferred,  the  Article 
is-  clearly  applicable,  [p  345,  cols  1  &  2  J 

Obiter. ^~ The  omission  in  Art  134  of  Soh.  I  to  the 
Limitation  Acts  of  1877  and  1008  of  the  words  'in  good 
faith'  which  appeared  in  the  corresponding  article  of 
the  Limitation  Acts  of  1><59  and  1871  now  render  it 
unnecessary  fora  transferee  from  the  mortgagee  to 
prove  that  he  noted  in  go  jd  faith  before  fie  can  pioad 
limitation  [p  343,  col  1  | 

Per  Ramesain,  J. — The  possible  cases  that  may 
arise  in  the  case  of  a  transfer  by  a  mortgagee  are 
four  :  — 

(1)  Where  the  transfer  on  its  face  purports  to  be  an 
assignment  of  the  mortgagee's  interest  only,  to  such 
a  case    Art  134    of  Sch    J  to  the    Limitation  Act  can 
never  apply.    'Lp  344,  col  1.) 

(2)  Where  the  transfer  purported  to  be  a  sale-deed 
but  as  a  matter    of   fact  only  an  assignment    of    the 
mortgagee's  interest  was  all  that  was  bargained  for,  to 
such  a  case  also  Art  131  does  not  apply.    [t6id] 

(3)  Where  the  deed  of  transfer  is  a  sale-deed    and 
what  was  bargained      by  tho    transferee    is    also  an 
absolute  sale,  though  he  knew  that  the  transferor  had 
only  a  mortgagee's  interest,    in  such    a    case  though 
under  the  Limitation  Acts  of  1859  and  1871,  Art.  134 
may  not  apply,  under  the  Acts  of  1877  and  1908  it  does 
apply.  j>6ic/.] 

(4)  Where  the  transfer  is  in  the  form  of  a  sale-deed 
and  the  transferee  bargained  for  an  absolute  interest 
and  acted  bona  fide  throughout,  to  such  a  case  there 
is  no  doubt  that  Art.  131  will  always  apply,  [ibid.] 

Sulbaiya  Pandaram  v  Muhamad  Mustapha  Mara- 
ca//ar,74  Ind.  ('as  492;  47  M  751,  21  A.  L.  J.  730; 
(19-J3)  A.  I  R.  (P  C )  175;  45  M.  L  J  568;  25  Bom  L. 
R.  1275;  18  L  W.  903;  ^1924)  M.  W  N  65;  28  C.  W 
N,  49,3;  2  Pat.  L  R.  104;  33  M.  L.  T.  285;  40  0.  L,  j! 
'80;  501,  A,  295  (P.  0,)!  Kannusami  Thonjirayan  v, 


Muthitsami  Pillai,  38  Ind.  Gas,  194;  (1917)  M.   W.  N, 
5;  5  L.  W  5,"    r    ".  V  ,  ;  .      "    '   '    ""      "  ~*      ' 

45  Ind,  0.'  ,-.,,   !  -i-    M    V."   X    '  ',  ;"•  V.  '    ."   : 
7  L.  W.  482,  23  M.  L.  t.  291,  relied  op. 
[Case-law  considered.] 

Appeal  against  a  decree  of  the  Court 
of  the  Subordinate  Judge,  South  Kanara, 
in  0.  8.  No.  21  of  1919, 

Mr.  C.  V.  Anantakrishna  Ii/er,  for  the 
Appellants. 

Mr.  JB.  Sitarama  Rao,  for  the  Respond- 
ents. 

JUDGMENT. 

Ramesam,  J.— This  appeal  arises  out 
of  a  suit  for  redemption  of  a  mortgage. 
The  plaintiffs1  predecessors-in- title,  namely, 
Parameswari  Hengsuand  others  mortgaged 
such  of  the  properties  as  are  comprised 
in  Sch.  A  and  the  properties  in  Sch.  A-l 
to  one  Manjinatha  Naicker  by  Ex.  I,  dated 
the  12th  January  1872  for  Rs.  14,000.  The 
mortgagee  conveyed  the  properties  in  Sch, 
A  by  Ex.  II,  dated  the  16th  July  1878  to 
one  Venkappa,  the  ancestor  of  th6  defen- 
dants and  the  defendants  obtained  them 
for  their  share  at  a  family  partition,  The 
mortgagors  assigned  the  equity  of  redemp- 
tion in  the  •  .;.,»:  properties  by  Ex.  B, 
dated  the  i*.ui  September  1906  to  one 
Boobashetti  from  whom  it  devolved  on  the 
plaintiffs  under  the  Alhasantana  Law. 
We  aie  not  now  concerned  with  the  pro- 
perties in  Sch.  A-l  as  to  which  the  interest 
of  the  mortgagee  also  has  come  to  the 
plaintiffs'  hands  by  various  transactions. 
The  Subordinate  Judge  dismissed  the  suit. 
In  appeal,  the  claim  for  the  properties 
in  Sch.  A  2  has  not  been  pressed  and  no 
reference  need  be  made  to  them  and  we 
are  only  concerned  with  the  properties  in 
Sch  A  Two  points  have  been  argued  by 
the  learned  Vakil  for  the  appellants. 

(ly  Whether  Ex.  I  is  a  mortgage  by  con- 
ditional sale  or  a  sale  with  an  agreement 
for  re-purchase? 

(2)  Assuming  it  is  a  mortgage,  whether 
the  suit  is  barred  by  limitation  under  Art. 
134  of  the  Limitation  Act? 

In  the  view  I  take  of  the  second  question, 
I  think  it  is  unnecessary  to  discuss  the  first. 
For  the  purposes  of  discussion  I  will  as- 
sume in  favour  of  the  appellant  that  Ex.  I 
ought  to  be  construed  only  as  a  mortgage 
by  conditional  sale.  The  question  now  is 
whether  the  properties  having  been  sold 
by  Ex.  II,  Art.  134  of  the  Limitation  Act 
does  not  apply. 

Mr.  Anantakrishna  Iyer  the  learned 
Vakil  for  the  appellants  contends  that 


(92  i.  U  1926J 

Art.  134  of  the  Limitation  Act  can  only 
apply  where  the  transferee  from  the  mort- 
gagee took  the  properties  in  the  belief  that 
the  transferor  was  absolutely  entitled  to 
them.  That  this  was  the  law  under  the 
corresponding  articles  of  the  Acts  of  1859 
and  1871  admits  of  no  doubt:  see  Radha- 
nath  Doss  Y,  Gisborne  and  Co.  (I).  But  the 
words  "in  good  faith11  which  appeared  in 
that  Article  have  been  omitted  in  the  Acts 
of  1877  ^  and  1908.  The  question  is 
whether  it  can  be  contended  that  under 
the  Acts  of  1877  and  1908  the  knowledge  on 
the  part  of  the  purchaser  of  the  true  nature 
of  the  interest  of  the  transferor  prevents 
the  application  of  Art.  134.  Mr.  Ananta- 
krishna  Iyer  relied  on  Singaram  Chettiar 
v.  Kalayanasundaram  Pillai  (2).  Though 
the  remarks  at  page  7.18*  of  that  decision 
are  somewhat  in  favour  of  the  appellant, 
the  point  was  not  actually  decided  in  that 
case  The  next  decision  relied  on  by  him 
is  Tholasinga  Mudali  v.  Nagalinga  Chetty 
(3)  where  the  obiter  dictum  in  Singaram 
Chettiar  v.  Kalayanasundaram  Pillai  (2) 
was  followed  by  Sadaaiva  Iyer,  J.,  and 
Napier,  J.  The  next  case  relied  on  by  him 
is  the  decision  in  Muthaya  Shetti  v.  Kan- 
thappa  Shetti  (4).  In  that  case,  it  is  ob- 
served:— 

"If  the  transferee  bargained  for  and  be- 
lieved he  is  bargaining  only  for  the  interest 
of  the  mortgagee,  he  cannot  acquire  title  as 
the  absolute  owner  jf  the  properly.  After 
all,  Art.  134  is  only  a  branch  of  the  law  of 
prescription  and  the  question  to  be  deter- 
mined would  be,  what  it  is  that  the  pur- 
chaser prescribed  for.  The  fact  that  he 
knew  that  his  vendor  had  only  a  mortgagee 
right  would  not  be  conclusive  on  this  ques- 
tion. The  real  test  would  be,  did  he  ask 
for  and  obtain  an  absolute  right  in  the 
property  and  believe  himself  that  he  was 
having  an  absolute  interest  in  it?  In  Pandu 
v.  Vithu  (5)  that  is  the  test  that  was  sug- 
gested". I  do  not  see  how  these  remarks 
of  Seshagiri  Iyer,  J.,  help  the  appellant. 
If  the  transferee  purported  to  purchase  the 
absolute  interest  even  though  he  knew  that 

(1)  14  M.  I.  A.  1;  15  W    R.  P.  0  24;  6B.  L  R.  530; 
2  8uth.    P.  0.    J.  397;    2  Sar.  P.    C.  J.    63fl,   20  B.  R. 
687. 

(2)  26  Ind.    Cas.  1;    (1914)  M,  W.   N:  735;    1  L.  W. 
087. 

(3)  33  Ind.  Gas.  265;  (1916)  1  M.  W.  N.  28;  3  L.  W. 

(4)  45  Lid.  Gas.  975;   (1918)  M.  W.  N.  334;  34  M.  L. 
J.  431;  7  L.  W.  482;  23  M.  L.  T.  291. 

*.-)>  19  B.  U);  10  lad.  Dec  (N.  s.)  05.  ^ 

Page  of  (19U)  M.  W.  N.— [Ed.] 


SHETTfTril  V    RAMACtUKDRAYYA, 


343 


the  transferor  had  only  the  interest  of  a 
mortgagee,    the   Article  would  still  apply 
according  to  this  view     Bakewell,  J.,  added 
that  "If  the  title  adduced  by   the    vendor 
and  the  deed  of  transfer  to  the  purchaser 
are  consistent  with  an  intention  to  transfer 
an   absolute  interest,   the  burden    will   lie 
upon  the  plaintiff  to  show  that  the  circum- 
stances of  the  transfer  negative  such    an 
intention11.    He  made  no  reference  to  the 
case    of  Singaram  Chetti  v.   Kalayanasun- 
daram Pillai  (2)  unlike  Seshagiri  Iyer,  J. 
The  finding  shows  that  the  deed  of  mort- 
gage  in  that   case  was  stvled  a  sale- deed 
though  construed  by  the  High   Court  as  a 
mortgage   by  conditional  Rale.     The  period 
for  redemption  fixed  in  it  had  expired  and 
it  was  said  that  the  vendee  would  naturally 
suppose  that  he  was  purchasing  an  absolute 
title,      The  finding    accordingly   was   that 
the   transferor  intended  to  transfer  an   ab- 
solute  interest  and  that   the    intention   of 
the   parties  was   that   there   should   be   an 
absolute   transfer  of  title  of  property.    The 
finding  was  accepted   by  the   High   Court 
and  the    second  appeal   was    dismissed.    I 
do  not  think  that  this  case  really  supports 
the  appellants. 

Mr.  Sitarama  Rao  for  the  respondent  re- 
lied on  the  case  of  Kannusami  Thonyiroyan 
v.  Muthusami  Pillai  (6jin  which  my  learned 
brother  took  part  He  pointed  out  that  the 
decision  in  Veerabadra  Tevan  v.  Veeruppa 
Tevan  (7)  was  really  a  case  of  an  assign- 
ment of  the  mortgagee's  interest.  He  also 
referred  to  Prasanna  Venkatachella  Reddiar 
v.  Collector  of  Triivi/V,/j  >!<j  (8)  which  was 
a  case  of  a  transferee  from  a  trustee.  He 
agreed  with  the  decision  in  Pandu  v.  Vithu 
(5)  and  differed  from  Chamier,  J.'s  opinion  in 
Ghasi  Ram  v  Kishna  (9)  and  held  that  the 
purchaser  need  not  prove  that  he  purchased 
in  good  faith  that  is  without  constructive 
notice  of  the  restricted  nature  of  the  vend- 
or's title  In  Baluswami  Aiyer  v.  Venkita- 
swamy  Naicker  (10),  it  was  held  in  the 
case  of  a  transferee  from  a  trustee  that 
knowledge  of  the  limited  nature  of  the 
transferor's  title  will  not  disentitle  the 
transferee  from  taking  ad  vantage  of  Art.  134 
of  the  Limitation  Act.  In  the  case  of  trusts 
this  is  the  view  also  adopted  in  Subbaiya 
Pandaram  v.  Muhamad  Mustapha  Maraca- 

(6)  38  Ind.  Caa.  194;  (1917;  M.  W.  N.  5;  5  L.  W.  250. 

(7)  15  Ind.  Cas  609. 

(8)  33  Ind.  Cas  45;  38  M.  1064. 

(9)  30  Ind.  Cas.  564;  13  A.  L.  J.  877, 

(JO)  40  Ind.  Cas,  531;  32  M.  L.  J.  34;  40  M,  745, 


344 


VENKU  SBBTT1THI  V.  RAMACHANDRAm, 


yar  (11)  which  was  afterwards  affirmed  by 
the  Privy  Council  in  Subbniya  Pandaram 
v.  Muhamad  Mustapha  Maracayar  (12). 
These  decisions  were  referred  to  by  the 
learned  Judges  who  decided  Muthayya 
Shetti  v.  Kanthappa  Shetty  (4)  as  consist- 
ent with  their  view.  To  sum  up,  the  pos- 
sible cases  that  may  arise  in  a  matter  of 
this  sort  are  four: — 

1.  Where  the  transfer  on  its  face  purports 
to   be  an    assignment   of  the  mortgagee's 
interest  only,  into  such  a  case  Art.  134  can 
never  apply. 

2.  Where  the  transfer  purported  to  be  a 
sale-deed  but  as  a  matter  of  fact  only  an 
assignment  of  the  mortgagee's  interest  was 
all  that  was  bargained  for,  it  may  be  con- 
ceded that  in  such  a  case  also  Art.  134  does 
not  apply.    And  this  is  all  that  was  decided 
in  Mvthayya  Shetti  v.  Kanthappa  Shetti  (4). 

3.  Where  the  deed  of  transfer  is  a  sale- 
deed  and  what  was  bargained  by  the  trans- 
feree is  also   an  absolute  sale  though  he 
knew  that  the  transferor  has  only  a  mort- 
gagee's interest,  in    such    a  case,   though 
under  the  Acts  of  1859  and  187 1,  Art  134  may 
not  apply,  I  think  under  the  Acts   of  1877 
and  1908  it  applies.    This  is  also  the  view 
taken  by  the  Calcutta  High  Court  in  Ram 
Kanai  Ghosh   v.    Raja  Sri  Sri  Sri  Hari 
Narayan  Singh    Deo  Bahadur  (13)  which 
was  also  a  case  of  a  trustee.    Seeing  that 
the  Privy  Council  have    come  to  the  same 
conclusion  in  Subbaiya  Pandaram  v.  Mu- 
hamad Mustapha  Maracayar  (12),  I  do  not 
think  any  value  can   be  attached   to    the 
dissent  from  the  decision  in  Ram     Kanai 
Ghosh  v.  Raja  Sri  Sri  Sri  Hari   Narayan 
Singh  Deo  Bahadur  (13)  in  Singaram  Chettiar 
v.  Kalyanasundaram  Pillai  (2). 

4.  Where  the  transfer  is  in  the  form  of 
a  sale-deed  and  the   transferee  bargained 
for  an  absolute    interest    and  acted   fcona 
fide  throughout,  to  such  a  case  there  is  no 
doubt  that  Art.  134  will  always  apply.    Only 
the  third  case  is  the  one    in    respect    of 
which  there  seems  to  be  some  difference  of 
opinion,    But  it  seems  to  me  that  the  pre- 
ponderance of  opinion  in  this  High  Court, 
in  Bombay,  in  Calcutta  and  in   the  Privy 


(11)  40  Ind.  Gas.  50;  32  M.  L.  J.  85;  21  M.  L.  T.  62; 
5L.  W.  690. 

(12)  74  Ind.  Cas.  492;  46  M  751;  21  A.  L.  J.  730; 
(1923)  A.  I  R.  (P.  C.)  175;  45  M.  L.  J.  588;  25  Bom.  L. 
R.  1275;  18  L.  W.  903;  (1924)  M.  W.  N.  65;  28  0.  W.'N. 
493,  2  Pat.  L.  R.  104;  33  M.  L.  T.  285;  40  0.  L.  J,  20;  50 
I.  A.  295  (P.  C.). 

13}2aL,J,54e, 


[92 1.  0. 1926] 

Council  is  in  favour  of  the  view  that  Art. 
134  applies.  In  the  present  case,  though 
we  may  now  construe  Ex.  I  to  be  a  deed  of 
mortgage,  it  is  impossible  to  say  that  the 
purchaser  under  Ex  2  acted  otherwise  than 
bona  fide.  According  to  the  terms  of  Ex.  1 
fche  debt  was  to  be  paid  off  after  the  12th  of 
January  1876  and  before  the  12th  of  January 
1878  and  in  default  of  payment  on  the  latter 
date,  it  was  to  operate  as  an  absolute  sale; 
under  the  law  as  it  then  stood,  the  mort- 
gagee might  have  honestly  thought  that  he 
obtained  an  absolute  title  by  the  default  of 
payment  within  the  stipulated  date  and  the 
transferee  might  have  also  similarly  thought 
that  the  transferor  had  an  absolute  title. 
That  both  were  acting  perfectly  bona  fide 
is  clear  from  the  recitals  in  Ex.  II.  It  must 
be  remembered  that  the  Transfer  of  Pro- 
perty Act  had  not  been  enacted  in  1878. 
The  Privy  Council  held  in  Pattabhiramier 
v.  Vencatarow  Naicken  (14)  that  the  prin- 
ciple that  a  mortgage  is  for  ever  redeem- 
able was  not  known  to  the  ancient  Jaw  of 
India.  It  is  true  that  in  a  later  case  Thumbu- 
swamy  Moodelly  v.  Hossain  Rowthen  (15) 
their  Lordships  indicated  a  different  rule 
in  the  case  of  mortgages  after  the  year 
1858.  But  the  parties  to  Ex.  II  might  well 
have  thought  that  in  the  case  of  mortgage 
documents  between  1871  and  1875  the  deci- 
sion in  Pattabhiramier  v.  Vencatarow  Naic- 
ken (14)  applied.  It  is  true  that  the  Madras 
High  Court  repelled  such  a  contention,  but 
this  was  long  after  1878.  In  the  above  re- 
marks I  assumed  that  the  parties  to  Ex.  II 
knew  that  the  proper  construction  of  Ex.  I 
is  that  it  was  a  mortgage  by  conditional 
sale.  But  even  this  is  extremely  doubtful. 
Whatever  view  we  may  now  take  of  Ex.  I 
there  is  nothing  to  show  that  the  parties 
to  Ex.  II  did  not  honestly  suppose  it  to  be 
a  deed  of  absolute  sale  which  is  what  it 
purported  to  be.  I  think  the  present  case 
is  a  case  where  the  transferee  acted  bona 
fide  according  to  the  strictest  meaning  of 
the  term,  and  Art.  134  applied,  There  is 
nothing  to  show  that  he  did  not  pay  the 
full  value,  according  to  the  prices  that 
ruled  in  1878.  I  think  the  appeal  fails  on 
this  ground  and  ought  to  be  dismissed 
with  costs. 

Spencer,  J. — I  agree.    I  am  unable  »to 
regard  the  omission  of  the  words  "in  ffood 

(14)  13  M.  I.  A.   §60;  15  W.  R  P.  0.  35;   7  B    L    R 
336;  2  Suth.  P  0.  J.  410,  2  Sar,  P.  0.  J.  623;   20  E.fl! 

(15)  1  M.  1;  2  I.  A,  241;    3  Suth,  P.  0.  J.  198;  3- Sar 
P,  0,  J,  531;  1  fed.  Dec.  ftU)  1  (P.  C.).  '     W' 


YA81M  BIB  I  V.  MONWAR  BUSSAlN* 


[92  1.  0. 1926] 

faith"  which  appeared  in  the  corresponding 
Articles  of  the  Limitation  Acts  of  1859  and 
1871,  as  being  without  any  significance,  so 
as  to  throw  the  onus  on  a  purchaser  of  the 
full  interest  from  a  mortgagee  to  prove  that 
he  acted  in  good  faith  before  he  can  plead 
limitation.    The  same  Art.  134  governs  both 
properties  conveyed  in  trust  and  properties 
mortgaged  when  they  have  been  transferred 
afterwards  for  valuable  consideration.    In 
the  case  of  trust  property,  the  Privy  Council 
has    decided    in    Subbiaya    Pandaram    v. 
Muhamad  Mustapha  Maracayar  (12)  that  a 
purchaser  for  valuable  consideration  with 
notice  of   the    trust  can  under   Art.    134 
plead  12  years1  adverse  possession  as  a  de- 
fence to  a  suit  brought  by  the  trustees.    I 
Bee  no  reason  to  suppose  that  trustees  were 
intended  to  be  put  in  a  worse  position  than 
mortgagors  as  regards  recovery  of  alienated 
property.    The    only    distinction    between 
the  positions  of  a  purchaser  from  a  mort- 
gagee and  a  purchaser  from  a  trustee  is  that 
a  mortgagee  as  such  has  the  mortgagee's 
interest  which  is  assignable  in  the  property, 
whereas  a  trustee  as  such  has  no  transfer- 
able interest     This  distinction  is  pointed 
out  in  Subbaiya  Pandaram    v,    Muhamad 
Mustapha  Marcayar  (11),  but  nevertheless 
it  was  held  in  that  case  that  a  transferee  of 
trust  property  need  not    prove  good  faith 
before  taking  advantage  of    Art.  134,  and 
the  decision  was  confirmed  by  the  Privy 
Council  in  Subbaiya  Pandaram  V.   Muham- 
mad Mustapha  Maracayar    (12).    My  judg- 
ment    in    Kannuswami     Thonjirayan    v. 
Muthusami    Pillai    (6)    was    quoted    with 
approval  in  Muthaya  Shetti  v.   Kanthappa 
Shetli  (4),  and  we  have  not  been  shown  any 
reason  for  doubting  its  correctness  beyond  a 
foot-note  at  page  516  of  Rustomji's  Commen- 
tary on  the  Law  of  Limitation  (3rd  Edition). 
The  view  of  the  majority  of  the  Full  Bench 
which  decided  Mulla  Vittil  Seeti  Kutti  v. 
Kunhi  Pathumma  (16),  that  Art.   134   does 
not  apply  to  cases  where  the  transferee  from 
.  a  mortgigee  does  not  get  possession  of  the 
property  will  not  help  the  appellants  before 
us  who  are  out  of  possession  and  ask    for 
delivery   of    possession.    In     every     case 
where  Art.  134  is  set  up  as  a  defence   by  a 
transferee  from  a  mortgagee  it  is  material 
to    see  what  interest  the  mortgagee  pur- 
ported to  transfer  to  him    (vide  Rego  v. 
Abbu  t  Beavi     (17)  ;    Muthaya     Shetti    v. 

(16)  43  Ind.  Gas,  31;  40  M,  1040;   33  M.   L.  J.   320; 
(1917)  H  W'.IN.  609r22  M.  L.  T.  236;  6  L.  W,  164, 
-    (17)  jllMf »!»-,  7  lAd,  Deo,  (*.  i.)  463. 


345 


Kanthappa   Shetti  (4),   Veerabadra  Theran 
v.  Veerappa    Tevan    (7)    and    Baluswami 
Aiyer     v.     Venkitaswamy    Naicker     (10). 
Exhibit  II  dated  July  16th,  1»78,  purports  to 
be  an    absolute  sale  of  the  properties  in 
8ch.    A.  and  not  a    mere  assignment    of 
a  mortgage  interest  in  them.    1  think  that 
both  seller  and  purchaser  must  have  honest- 
ly believed  that  the  entire  interest  of  the 
owner  was  being  transferred  by  this    docu- 
ment, seeing  that  if  Ex.  I  dated  January 
12th,  1872,  were  to  be  treated  as  a  sale  with 
an  option  for  re- purchase  after  five  years 
and  before  six  years,  the  date  for  re-purchaee 
had  passed  and  the  property  had  become 
vested  entirely  in  the  purchaser  on  January 
12th,  1878.    The  present  suit  was  rightly 
held  by  the  Subordinate  Judge  to  be  time- 
barred  and  the   appeal  must  be  dismissed 
with  costs. 

v.  N.  v.  .        Appeal  dismissed. 

N.  H. 


ALLAHABAD  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  127  OF  1923. 

May  8,  1924. 

Present;— Mr.  Cecil  Henry  Walsh,  Acting 
Chief  Justice,  and  Mr.  Justice  Ryves. 
YA8IN  BIBI  AND  OTHERS— DEFENDANTS 
— APPELLANTS 

versus 

Syed  MUNAWAR  HUSAIN-PLAiNTiFp 
— RESPONDENT. 

Registration  Act  (XVI  of  1908),  ss.  82,  S3- Pre- 
sentation, what  amounts  to —Deed  executed  by 
pardanashin  woman  handed  over  to  Sub-Registrar  by 
husband,  effect  of. 

The  presentation  of  a  document  for  registration  is  a 
question  of  fact  requiring  no  formality. 

The  husband  of  a  pardanashin  lady  went  to  a  Sub- 
Registrar  and  handing  over  to  the  latter  a  deed  exe- 
cuted by  his  wife  requested  him  to  go  to  his  house 
and  register  the  deed  : 

Held,  that  the  handing  over  of  the  deed  to  the  Sub- 
Registrar  by  the  husband  did  not  amount  to  "presenta- 
tion" and  did  not  preclude  a  subsequent  presentation 
of  the  deed  by  the  executant  herself. 

First  appeal  from  an  order  of  the  Dis- 
trict Judge,  Gorakhpur,  dated  the  23rd  of 
June  1923. 

Babu  Piari  Lai  Banerji  and  Hafiz 
Mushtaq  Ahmed,  for  the  Appellants. 

Maulvi  Muhammad  Abdul  Aziz,  for  (he 
Respondent. 

JUDGMENT.— We  are  of  opinion  that 
no  question  of  law  arises  in  this  appeal.  In 
order  to  support  the  argument  of  the  learned 


340 


J1WA   RAM  V.  JHANDA  81NUH. 


Vakil  on  the  point  of  law  which  he  submit- 
ted to  us,  it  is  necessary  for  his  case  that 
presentation  should  have  been  made  at  the 
office  of  the  Sub-Registrar.  Then  the  point 
would  have  arisen,  [f  presentation  had 
been  made  at  the  office  of  the  Sub-Registrar, 
it  would  have  followed  that  it  had  been 
made  by  somebody  under  a  power-of-at- 
torney,  which  was  not  duly  executed  in 
accordance  with  the  provisions  of  the  Act. 
But  the  difficulty  of  considering  that  ques- 
tion of  law  in  this  particular  case,  is  that 
the  learned  Judge  has  definitely  held,  that 
the  act  of  the  husband  in  going  to  the 
Sub-Registrar  and  handing  over  the  deed, 
and  asking  him  to  go  to  the  house  of  the 
pardanashm  lady  to  have  it  registered,  was 
not  presentation.  He  has  found  as  a  fact 
that  the  presentation  did  not  take  place 
until  the  Hub-Registrar  went  to  the  house 
of  the  lady.  It  is  admitted  that  if  that  is 
true,  the  decision  of  the  learned  District 
Judge  is  correct.  As  Lord  Buckmaster,  in. 
the  course  of  argument  in  the  Privy  Council 
in  the  case  of  Bharat  Indu  v.  Hamid  All 
Khan  (1),  (the  material  passage  occurs  on 
page  718)*  says,  "  Presentation  is  a  ques- 
tion of  fact  requiring  no  formality.  The 
servant  (and  if  we  substitute  the  word 
4  husband '  instead  of  *  servant '  in  this 
case,  the  cases  become  similar)  really  wrong- 
ly handed  over  the  document  to  the  Regis- 
trar ;  he  should  merely  have  told  him  to  go 
to  the  house/'  Lord  Phillimore,  in  the  course 
of  delivering  their  Lordships'  opinion, 
said  that  the  handing  over  by  Wazir  Beg, 
that  is  the  servant,  was  inoperative  but  not 
injurious  to  the  subsequent  presentation. 

So  the  learned  Judge  had  the  support  of 
the  Privy  Council  for  taking  the  view  of 
the  fact  of  presentation  which  he  has  done. 
la  other  words,  he  has  found  a  fact  which 
is  binding  upon  us.  There  was  evidence 
to  entitle  him  to  do  ap,  and  we  cannot 
interfere.  The  appeal  is  dismissed  with 

C09t8-  4         T  j*      •     j 

z  &i  Appeal  dismissed. 

(1)  58  Ind.  Gas  386;  42  A.  487;  18  A.  L.  J.  717 
718  39  M.  L.  J.  41,  (1920)  M.  W  N.  413;  28  M  L  T. 
98  25  O  W.  N  73;  22  Bom.  L  R.  1362;  47  I  A.  177, 13 
I/W  4;  2  U.  P.  L.  R.  (P.  C.)  179  (P.  P.), 

Tage  of  18  A.  L. 


[92  L  0.  1926J 

LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  1138  OP  1923. 

December  i7,  1923. 
Present;— Mr.  Justice  Abdul  Raoof  and 

Mr.  Justice  Moti  Sagar. 
JIWA  RAM— PLAINTIFF— APPELLANT 

versus 
JHANDA  SINGH— DEFENDANT— 

RESPONDENT 

Evidence  Act  (I  of  1872),  8.  102,  Illus  (b)~Mortgag& 
suit —Consideration,  receipt  of — Burden  of  proof — 
Consideration,  inadequacy  o/,  effect  of. 

Where  a  mortgagor  admits  the  execution  of  the 
mortgage-deed,  it  lies  upon  him.  to  prove  that  the  con- 
sideration mentioned  in  the  deed  had  not  been  received 
by  him  in  full  The  mere  fact  that  he  had  been 
recklessly  borrowing  money  would  not  absolve  him. 
from  discharging  the  burden  that  lies  upon  him. 
[p.  347,  col.  2  ] 

An  equity  can  be  founded  upon  gross  inadequacy  of 
consideration  only  when  the  inadequacy  is  such  as  to 
involve  the  conclusion  that  the  party  either  did  not 
understand  what  he  was  about  or  was  the  victim  of 
some  imposition,  [p  318,  col.  1] 

First  appeal  from  a  decree  of  the  Senior 
Subordinate  Judge,  Lahore, 

Lala  Badri  Das,  R.  B.,  and  Lala  Tirath 
Ram,  for  the  Appellant. 

Mr.  M.  S.  Bhagaty  for  the  Respondent. 

JUDGMENT.— This  was  a  suit  for 
sale  upon  a  mortgage.  The  mortgage  was 
executed  by  Jhanda  Singh  on  the  28th  of 
July  1915  securing  an  advance  of  Rs.  4,000 
bearing  interest  at  the  rate  of  Rs.  2  per 
cent,  per  mensem  in  favour  of  Jiwa  Ram, 
the  plaintiff.  The  detail  of  the  considera- 
tion stated  in  the  mortgage  deed  is  as 
follows  : — 

(a)  Rs.  2,200,  in  cash,  and 

(6)  Rs.  1,800  in  currency-notes. 

The  deed  was  signed  by  the  mortgagor 
and  attested  by  witnesses,  Oa  the  same 
date  the  mortgagor  executed  a  receipt 
;.  \  .  V  „•  the  payment  of  Rs.  4,000  as 
The  mortgagor  in  his  own 
hand  put  down  the  detail  of  the  considera- 
tion money  in  the  receipt  and  signed  it. 
The  period  fixed  for  re-payment  was  six 
months.  The  property  mortgaged  consisted 
of  a  two  storyed  house  together  with  shops 
situated  in  the  Lahore  city,  Gumti  Bazar. 
The  suit  was  instituted  on  the  28th  of  May 
1918  claiming  Rs.  4,000  principal  and 
Rs.  2,720  interest  for  two  years  and  ten 
months  from  the  28th  July  1915  to  the 
28th  of  May  1918  at  the  rate  of  Rs.  2  per 
cent,  per  mensem,  the  total  claim  being 
put  to  Rs.  6,720.  The  suit  was  resisted  by 
the  defendant  on  the  plea  that  full  con- 
sideration for  the  mortgage  had  not  been 
received  and  that  only  Rs.  2,000  had  been 


J1WA  RAM  V   JHANDA  SINGH. 


[»2  I.  0,  1926] 

paid  and  an  oral  promise  had  been  made 
either  to  confine  the  claim  to  Rs.  2,000  only 
or  to  pay  the  balance  to  the  mortgagor 
whenever  required  by  him.  It  was  also 
pleaded  that  the  rate  of  interest  agreed 
upon  was  9-annas  per  cent,  per  mensem  as 
stated  in  the  mortgage-deed.  The  mort- 
gagor having  refused  to  get  the  deed  re- 
gistered the  mortgagee  applied  under  s.  36 
of  the  Indian  Registration  Act  for  the  com- 
pulsory registration  of  the  document.  The 
Sub-Registrar  having  refused  to  register 
the  deed  an  appeal  was  preferred  against 
his  order  and  the  Registrar  ordered  its  re- 
gistration. On  these  pleas  two  issues  were 
framed  by  the  Trial  Court,  namely. 

(1)  Did  the  plaintiff  advance  Rs.  4,000  to 
the  defendant  on  the  28th  of  July  1915? 

(2)  Did     the    defendant    agree    to    pay 
interest  at  Rs.  2  per  cent,  per  mensem? 

The  burden  of  proof  was  laid  by  the 
learned  Senior  Subordinate  Judge  upon  the 
plaintiff  To  discharge  this  burden  the 
plaintiff  called  the  two  marginal  witnesses 
Raghpat  Rai  <P.  W.  No.  1)  and  Ram  Chand 
(P.  W.  No.  2).  The  scribe  having  died 
could  not  be  produced  in  Court.  The 
plaintiff  also  produced  his  roznamcha  bahi 
and  further  supported  the  claim  by  his  own 
evidence  by  going  into  the  witness-box. 
Evidence  was  produced  on  behalf  of  the 
defendant  to  prove  that  his  property  was 
released  by  the  Court  of  Wards  on  the  1st 
of  July  1915.  On  the  24th  of  July  he  mort- 
gaged this  very  house  to  one  Ramun  Mai 
for  Rs.  4,000  and  only  four  days  after  this 
he  executed  the  mortgage  in  suit  in  lieu  of 
Rs.  4,000.  On  the  14th  of  October  1^15  he 
mortgaged  certain  property  to  one  Lakhu 
Mai  for  Rs.  6,000,  The  evidence  disclosed 
that  between  the  year  1914-15  the  defend- 
ant incurred  liability  to  the  extent  of 
Rs.  80,000.  The  defendant  tried  to  prove  that 
he  was  an  inexperienced  and  impecunious 
youngman  and  that  he  had  fallen  into  the 
clutches  of  a  ring  of  money-lenders  of 
Lahore.  On  those  facts  the  defendant  asked 
the  Court  to  relieve  him  of  the  consequences 
of  his  extravagance  and  inexperience.  The 
Court  accepted  this  contention,  scrutinised 
the  evidence  given  by  the  plaintiff  strictly 
and  came  to  the  conclusion  that  the  plaint- 
iff had  failed  to  prove  that  RH.  4,000  had' 
been  paid  to  the  defendant  aa  consideration 
for  the  mortgage.  The  defendant  having 
acknowledged  the  payment  of  Rs.  2,000  the 
Court  granted  a  decree  for  that  amount  with 


347 


interest  at   the  rate  of  Rs,  2  per  cent,  per 
mensem. 

Against  this  decision  the  present  appeal 
has  been  preferred  by  the  plaintiff.  The 
defendant  also  has  filed  a  cross  appeal 
questioning  the  decision  of  the  Court  below 
as  to  interest. 

Mr.  Badri  Das  for  the  plaintiff-appellant 
has  contended  that,  having  regard  to  the  fact 
that  the  execution  of  the  deed  was  admitted, 
it  lay  upon  the  defendant  to  prove  that  the 
consideration  mentioned  in  it  had  not  been 
received  in  full.  He  questioned  the  decision 
of  the  Court  below  relating  to  the  onus  pro- 
bandi  and  contended  that  the  mere  fact  that 
the  defendant  had  been  recklessly  borrow- 
ing money  would  not  absolve  him  of  the 
burden  that  lay  upon  him.  He  relied  on  Illus- 
tration (6)  appended  to  s.  102  of  the  Indian 
Evidence  Act  and  cited  the  ruling  report- 
ed as  Fateh  Ali  Shah  v.  MiranBakhsh  (1). 
The  facts  of  the  reported  case  and  the 
decision  thereon  are  fully  summarised  in 
the  head-note  and  it  may  be  usefully  quoted 
here, 

('In  a  suit  by  plaintiff  to  recover  from 
defendant  No.  1  and  his  wife  a  sum  of 
Rs.  10,000  principal  and  Rs.  2,400  interest  on 
a  promissory  note  purporting  to  be  execut- 
ed by  both  defendants  on  the  29th  Novem- 
ber 1895,  payable  six  months  after  date, 
defendant  No.  1  while  admitting  execution, 
pleaded  that  after  he  had  attained  majority 
his  extravagance  had  necessitated  his  estate 
being  again  put  under  the  Court  of  Wards; 
that  after  the  time  the  debt  was  contracted 
he  was  living  on  a  small  monthly  allow- 
ance of  Rs.  160  which  was  inadequate  for 
his  wants;  that  he  cast  about  for  a  loan; 
and  that  plaintiff,  whom  he  described  as 
an  astute  lawyer's  clerk,  caught  him  in 
his  meshes  and  got  him  to  execute  the  note 
for  a  grossly  inadequate  consideration.  It 
was,  therefore,  urged  on  his  behalf  that  the 
doctrine  of  the  English  Court  of  Chancery 
in  the  case  of  expectant  heirs  and  neces- 
sitous persons  should  be  applied,  and  a 
decree  passed  merely  for  what  he  had  actual- 
ly received,  with  reasonable  interest  there- 
on. It  appeared  that  defendant  No.  1  was 
a  well  grown  and  mature  man  of  about 
thirty,  who  had  already  succeeded  to  a 
large  estate,  and  that,  though  addicted  to 
extravagance  and  debauchery  he  was  not 
a  person  of  weak  mental  capacity,  or  in 
any  state  of  mental  or  bodily  distress,  pr 

(1)  60  P.  R.  1895, 


348 


MAHAUEO  PRASAD  V.  ANANDI  LAL. 


[92  1.  0. 


such  necessity  as  made  him  incapable  of 
weighing  the  consequences  of  the  trans- 
action into  which  he  was  entering  with  the 
plaintiff  with  whom  he  had  had  no  previous 
dealings. 

"Held,  that  under  the  above  circumstances 
defendant  No.  1  could  not  be  placed  in  the 
category  of  those  incapable  of  protecting 
themselves,  and  that  the  case  must,  there- 
fore, be  treated  as  an  ordinary  case  of  debtor 
and  creditor,  the  onus  of  proof  of  all  the 
disputed  facts  being,  on  the  pleadings,  upon 
defendant  No.  1. 

"Held,  further,  that  there  is  an  equity 
founded  upon  the  gross  inadequacy  of  con- 
sideration, but  it  can  only  be  when  the 
inadequacy  is  such  as  to  involve  the  conclu- 
sion that  the  party  either  did  not  under- 
stand what  he  was  about  or  was  the  victim 
of  some  imposition." 

The  facts  and  the  pleadings  in  the 
present  case  are  peculiarly  similar  to  those 
in  the  reported  case  and  every  word  of  the 
decision  applies  with  equal  force  to  the 
defendant  in  the  case.  We  are,  therefore, 
clearly  of  opinion  that  the  burden  was 
wrongly  placed  upon  the  plaintiff. 

Thd  evidence  produced  by  the  defendant 
to  prove  his  allegation  is  wholly  unreliable 
and  inadequate  and  has  rightly  been  so 
characterised  by  the  Court  below.  Mr,  M. 
8  Bhagat  the  learned  Counsel  for  the  de- 
fendant, did  not  rely  upon  the  statement  of 
the  witnesses  produced  on  behalf  of  the 
defendant  and  admitted  the  correctness  of 
the  criticism  made  by  the  learned  Judge 
of  the  Court  below.  Wo  ourselves  have 
carefully  examined  the  evidence  and  we 
entirely  agree  with  the  learned  Judge  of  the 
Court  below  in  holding  that  it  is  unreli- 
able and  utterly  useless,  The  defendant 
himself  made  contradictory  statement  as  to 
the  circumstances  relating  to  the  transac- 
tion. His  statement  for  very  good  reasons 
was  discarded  by  the  Court  below  and  we 
ourselves  feel  unable  to  attach  any  import- 
ance to  it.  The  defendant  has  utterly  failed 
to  establish  that  the  whole  consideration 
for  the  mortgage  had  not  been  received  by 
him. 

We  accordingly  accept  the  appeal  with 
costs  and  modifying  the  decree  of  the  Court 
below  grant  a  decree  for  Rs.  4,100,  the 
principal  money,  together  with  interest  at 
the  rate  of  Rs.  2  per  cent,  per  mensem  up  to 
the  date  fixed  and  thereafter  on  the  aggre- 
gate amount  at  the  rate  of  Rs.  6  percent, 
per  annum,  The  office  will  prepare  a  pre- 


liminary decree  for  sale  in  accordance  with 
the  Form  No.  4  given  hi  Appendix  D  of  the 
C.  P.  0. 

The  defendant's  appeal  has  neither  been 
seriously  pressed  nor  do  we  find  any  force  in 
it.  We  accordingly  dismiss  it  ^ith  costs. 

z.  K.  Appeal  accepted. 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.   1594  OF  1922. 

July  8,  1924.      . 
Present  ;—  Mr.  Justice  Daniels  and 

Mr.  Justice  Neave. 

MAHADBO  PRASAD— DEFENDANT— 
APPELLANT 

versus 

ANANDI  LAL  AND  OTHERS— PLAINTIFFS— - 
RESPONDENTS. 

Transfer  of  Property  Act  (IV  of  1882),  ss  ]<0,  ICO— 
Charge  created  by  decree — Enforcement  against  trans- 
feree for  vulue  without  notice. 

The  general  rule  is  that  where  the  owner  of  pro- 
perty creates  successive  rights  by  different  transactions 
entered  into  at  different  times,  the  rights  will,  in  the 
absence  of  special  circumstances,  take  effect  in  order 
of  priority.  The  rule  laid  down  in  s  40  of  the  Trans- 
fer of  Property  Act  that  a  right  arising  out  of  contract 
and  not  amounting  to  an  interest  or  an  easement, 
cannot  be  enforced  against  a  transferee  for  value  with- 
out notice  has  no  application  to  an  obligation  creating 
n  charge  upon  property,  [p.  319,  col  2;  p.  350,  col.  1  j 

A  charge  created  by  a  decree  is  enforceable  against 
a  transferee  for  value  without  notice.  %,  [p.  350,  col  1  ] 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Allahabad,  confirming  that  of 
the  Munsif,  Allahabad  (West). 

Mr.  M.  L.  Agarwala,  for  the  Appellant. 

Dr.  Kailas  Nath  Katju  and  Pandit  S* S. 
Sastry,  for  the  Respondents. 

JUDGMENT.— The  question  of  law 
which  is  raised  in  this  appeal  is  whether  a 
charge  \Uiich  does  not  amount  to  a  mort- 
gage can  be  enforced  against  a  tiansferee 
for  value  without  notice  of  .the  charge.  The 
Court  below,  relying  on  the  decision  in 
Maina  v.  Bachchi  (1)  has  held  that  it  can. 
The  appellant  contests  this  proposition,  The 
plaintiff-respondent  supports  it,  but  in  ad- 
dition contends  that  on  the  finding  of  fact 
of  the  Court  below  the  question  does  not 
really  arise.  He  relies  also  on  the  fact  that 
the  appellant's  title  was  acquired  at  execu- 
tion sale  and  not  by  private  conveyance 

The  property  in  dispute  consists  of  a  half 
share  in  three  houses  Nos.  29,  45  and  66 
situated  in  the  city  of  Allahabad.  The 
plaintiff,  Anandi  Lai,- was  at  the  institution 

(1)  28  A.  655;  3  A,  L.  J,  551;  A.  W.  N.  (1906)  105, 


MAHADEO  PR  AS  AD  V.  ANANDI  LAL. 


[92  I.  0.  1926] 

of  the  suit  the  holder  of  a  decree  for 
Ks.  70i-y-0  against  the  first  defendant,  Sham 
Lai,  and  seeks  to  enforce  his  decree  by  the 
sale  of  these  houses.  The  houses  originally 
belonged  to  the  plaintiff  and  his  cousin, 
Kalyan  Ohand,  in  equal  shares.  One  Sheo 
Nath  obtained  a  decree  against  Kalyan 
Chand  and  attached  his  half  share  in  the 
houses  before  judgment  on  5th  February 
lylb.  The  suit  was  finally  decreed  on  j3th 
June  1916  on  the  basis  of  a  compromise 
which  provided  that  the  amount  decreed  in 
favour  of  Sheo  Nath  should  constitute  a 
charge  on  the  property  already  under  attach- 
ment. As  an  additional  precaution  the 
decree  was  registered.  The  rights  of  the 
decree-holder  were  purchased  by  the  plaint- 
iff, Anandi  Lai,  who  proceeded  to  put  the 
decree  in  execution.  The  houses  were  put 
up  to  sale  and  purchased  by  one  Badri 
Prasad,  but  the  sale  was  set  aside  on  the 
application  of  Sham  Lai,  and  the  plaintiff 
has  in  consequence  brought  the  present 
suit  to  establish  his  right  to  have  the  half 
share  in  the  houses  attached  and  sold  under 
hia  decree. 

The  claim  of  the  appellant  arises  out  of 
proceedings  taken  by  Bulaki  another  credit- 
or of  Kalyan  Ohand,  who  brought  a  suit, 
No.  189  of  1918,  against  the  latter  and  ob- 
tained a  decree  on  30th  April  1918.  Before 
judgment  Bulaki  got  an  injunction,  on  21st 
January,  1918,  from  the  Small  Oause  Oourt 
restraining  the  judgment-debtor  from  trans- 
ferring the  property.  It  is  waid  by  the 
learned  District  Judge  that  the  issue  of 
this  injunction  was  ultra  virest  and  it  has 
not  been  relied  on  in  argument,  in  this 
Court.  In  execution  of  this  decree,  Kalyan 
Chand's  interest  in  the  houses  was  attached 
and  brought  to  sale  and  was  ultimately 
purchased  by  Sham  Lai  on  22nd  March 
1919.  Sham  Lai  got  possession  of  the  pro- 
perty on  27th  March  1920.  He  subsequent- 
ly sold  his  rights  to  the  appellant,  Mahadeo 
Prasad.  The  latter  was  added  as  a  defend- 
ant after  the  institution  of  the  suit.  The 
question  for  decision  is  whether  Sham  Lai's 
purchase  was  or  was  not  subject  to  the 
charge  created  by  the  decree  of  13th  June, 
1918,  in  Sheo  Nath's  case,  the  benefit  of 
which  has  now  passed  to  the  plaintiff. 

According  to  the  definition  in  a  3  of  the 
Transfer  of  Property  Act,  a  person  is  said 
to  have  notice  of  a  fact,  not  only  when  he 
actually  knows  it  but  when  he  could  have 
been  aware  of  it  but  for  wilful  abstention 
from  such  inquiry  or  search  as  he  ought  to 


319 


have  made.  Now  in  this  case  the  purchaser, 
Sham  Lai,  knew  that  a  previous  suit 
had  been  filed  against  Kalyan  Ohand,  for 
he  had  actually  been  summoned  as  a 
witness  in  that  suit.  He  was  summon- 
ed for  the  very  day  on  which  the  com- 
promise decree  was  passed.  As  he  pro- 
fesses not  to  know  whether  he  attended 
the  Court  or  not  (a  fact  which  he  could  not 
possibly  have  forgotten),  the  probability  is 
that  he  really  was  there.  In  any  case  he 
knew  enough  to  make  it  incumbent  on  him 
to  ascertain,  before  buying  the  property, 
what  had  happened  in  the  previous  suit  and 
whether  the  creditor  having  got  his  decree 
had  taken  any  steps  against  the  property, 
which  would  affect  the  title  of  a  subsequent 
purchaser.  This  is  substantially  what  the 
District  Judge  finds,  though  he  has  put 
his  finding  in  the  somewhat  indefinite  form 
that  the  facts  "strongly  suggest"  that  Sham 
Lai  knew  more  about  the  proceedings  in 
the  former  case  than  he  is  now  prepared 
to  admit.  The  learned  Judge  further  points 
out  that  the  decree-holder,  by  registering 
his  decree,  had  done  everything  possible  to 
give  notice  to  any  one  who  might  contemp- 
late buying  the  decree.  On  the  findings  of 
the  District  Judge  it  must  be  held  that 
there  was  sufficient  to  put  the  original 
defendant,  Sham  Lai,  on  enquiry,  and  that, 
if  he  had  made  any  enquiry,  he  could  not 
have  failed  to  Jearn  the  true  state  of  the 
case.  'He  must,  therefore,  be  held  to  have 
had  notice  of  the  plaintiff's  charge  within 
the  meaning  of  the  definition  in  s.  3  of  the 
Act, 

This  really  concludes  the  case.  But 
we  may  say  that  we  are  not  disposed  to 
differ  from  Sir  Henry  Richards^  view,  in 
Maina  v.  Bachchi  (1),  that  the  position  of  a 
charge-holder,  under  the  Transfer  of  Pro- 
perty Act,  is  stronger  than  that  of  a  person 
holding  a  merely  equitable  charge  under 
English  Law,  and  that  though  there  may 
be  cases  in  which  a  mere  equitable  claim 
will  not  be  enforced  against  bona  fide 
transferees  for  value  without  notice,  yet 

"It  is  much  too  broad  a  proposition  to 
state  that  in  all  cases  where  by  act  of 
parties  or  operation  of  law,  immoveable 
property  of  one  person  is  made  security  for 
payment  of  money  to  another  and  the  trans- 
action does  not  amount  to  a  mortgage,  the 
security  will  not  be  enforced  even  against 
such  transferees." 

The  general  rule  is  that  where  the  owner 
of  property  creates  successive  rights  by 


BADRI  SAHU  V.  PBARB  LAL  MlSRA. 


[92  I.  0.  1926] 


different  transactions  entered  into  at 
different  times,  the  rights  will,  in  the 
absence  of  special  circumstances,  take 
effect  in  order  of  priority.  On  the  other 
hand,  s.  40  of  the  Transfer  of  Property  Act 
lays  down  that  a  right  arising  out  of  con- 
tract and  not  amounting  to  an  interest  or  an 
easement,  cannot  be  enforced  against  a  trans- 
feree for  value  without  notice.  In  this  case 
the  right  was  not  a  merely  contractual  right 
but  an  obligation  embodied  in  a  decree.  It 
is  also  to  be  remembered  that  Sham  Lai 
was  an  execution  purchaser  who  bought  the 
interest  of  the  judgment-debtor  as  it  stood 
on  the  date  of  the  decree.  There  are  two 
Calcutta  judgments,  Royzuddi  Sheik  v.  Kali 
Nath  Mookerjee  (2)  and  Akhoy  Kumar 
Bavtrjee  v.  Corporation  of  Calcutta  (3),  both 
delivered  by  Mr.  Justice  Mookerjee,  which 
lay  down  in  general  terms  that  a  charge 
cannot  be  enforced  against  a  transferee  for 
value  without  notice.  But  in  neither  of 
these  cases  did  the  decision  actually  turn 
on  this  question.  In  the  earlier  case  the 
document  relied  on  as  creating  a  charge 
was  held  to  be  invalid  and  in  the  later 
case  the  later  transferee  was  found  to  have 
had  nutice  of  the  charge.  For  the  reasons 
given,  we  dismiss  the  appeal  with  costs 
including  in  this  Court  fees  on  the  higher 
scale. 

z.  K.  Appeal  dismissed. 

(2)  33  0  985;  4  0.  L.  J.  219. 

3)  27  Ind.  Cas,  261;  42  C.  625;  19  C,  W.  N.37;  21 
C.  L.  J.  177. 


PATNA  HIGH  COURT. 

MISCELLANEOUS  CIVIL  APPKAL  No.  58 

OF  1925. 

October  23,  1925. 

:— Justice  Sir  B.  K.  Mullick,  KT., 
and  Mr.  Justice  Kulwant  Sahay. 
BADRI  SAHU  AND  OTHERS— DECREE* 
HOLDERS— APPELLANTS  ' 

versus 

Pandit  PEARE  LAL  MI8RA  AND 
OTHERS — JUDGMENT-DEBTORS — 

RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1008),  0.  XXI, 
rr.  66t  72 — Execution  of  decree — Sale  proclamation^ 
valuation  in — Decree-holder,  whether  bound  to  bid  up 
to  valuation 

There  is  no  provision  of  law  compelling  the  decree- 
bolder  to  bid  at  au  auction-sale  up  to  an7  aum  that 


may  be  fixed  by  the  Court.  The  valuation  in.  the  sale 
proc Lunation  is  intended  primarily  for  the  protection 
of  the  judgmout-debtor  and  for  giving  information  to 
the  bidders  at  the  auction-sale  It  is  in  no  sense  in- 
tended to  be  an  exact  estimate  of  the  value  of  the  pro- 
perty and  if  in  a  sale  proparly  published  and  conduct- 
ed the  highest  bid,  whether  of  the  decree-holder  or  any 
other  person,  is  some  figure  below  the  figure  given  in 
the  sale  proclamation,  it  is  not  competent  to  the  Court 
to  compel  the  decree-holder  to  bid  higher  than  that 
highest  bid, 

Appeal  against  an  order  of  the  Subordi- 
nate Judge,  Muzafferpur,  dated  the  22nd 
December  1924,  affirming  that  of  the 
Munsif,  Sitamarhi,  dated  the  14th  August 
1924. 

Mr.  Lakshmi  Narayan  Singh,  for  the  Ap- 
pellants. 

JUDGMENT. 

Mullick,  J. — No  one  appears  to  oppose 
this  appeal. 

It  appears  that  the  decree-holder  valued 
the  property  for  the  purposes  of  sale  pro- 
clamation at  Hs.  1,600.  At  the  sale  the 
decree-holder  bid  up  to  Rs.  600,  but  the 
Munsif  declined  to  allow  him  to  purchase 
the  property  unless  he  bid  up  to  Rs;  1,300. 
As  the  decree-holder  was  unwilling  to  do 
so  the  sale  was  not  held  and  the  execution 
case  was  dismissed.  The  decree- holder 
then  appealed  and  the  Subordinate  Judge, 
who  heard  the  appeal  agreed  with  the 
Munsif. 

The  present  second  appeal  is  preferred  by 
the  decree-holder. 

There  is  no  provision  of  law  compelling 
the  decree-holder  to  bid  up  to  any  sum 
that  may  be  fixed  by  the  Court.  The  valua- 
tion in  the  sale  proclamation  is  intended 
primarily  for  the  protection  of  the  judg- 
ment-debtor and  for  giving  information  to 
the  bidders  at  the  auction  sale.  It  is  in 
no  sense  intended  to  be  an  exact  estimate 
of  the  value  of  the  property  and  if  in  a  sale 
properly  published  and  conducted  the 
highest  bid,  whether  of  the  decree-holder 
or  any  other  person,  is  some  figure  below 
the  figure  given  in  the  sale  proclamation, 
it  is  not  competent  to  the  Court  to  compel 
the  decree-holder  to  bid  higher  than,  that 
highest  bid. 

The  order  of  the  Subordinate  Judge  will 
be  set  aside  and  the  appeal  will  be  decreed 
and  the  decree-holder's  bid  of  Rs.  600  must 
be  accepted, 

Kulwant  Sahay,  J.—I  agree. 

z.  K.  Appeal  allowed. 


HAJI  1AHMATBLLA  V.  SECRETARY  OP  STATE  FOR  INDIA. 


[98I.0.1188J 

BOMBAY  HIGH  COURT, 

FIRST  CIVIL  APPEAL  No  17  OF  i923. 

August  19,  1925. 

Present: — Sir  Norman  Macleod,  KT., 

Chief  Justice,  arid  Mr.  Justice  Coyajee. 

HAJI  REHEMTULLA  HAJI 

TARMAHOMED— PLAINTIFF— 

APPELLANT 

versus 

THE  SECRETARY  OF  STATE  FOR 
INDIA — DEFENDANT— RESPONDENT. 

Income  Tax  Act  (II  of  1886),  s  ,10— Declaration 
that  assessment  is  ultra  vires,  suit  for,  maintainability 
of — Resident  of  Native  State,  whether  liable  to  assess- 
ment on  profits  made  outside  British  India. 

The  provisions  of  s.  39  of  the  Income  Tax  Act  of 
1886  do  not  operate  to  bar  a  suit  in  which  it  is 
claimed  that  an  assessment  is  ultra  vires 

The  profits  of  a  business  are  earned  where  the  actual 
excess  over  the  expenditure  incurred  is  earned. 

A  resident  of  a  .Native  State  cannot  be  assessed  to 
income-tax  in  British  India  on  proiits  made  in  anothei 
Native  State,  unless  it  can  be  proved  that  those  profits 
arose  or  were  received  in  British  India. 

First  appeal  from  the  decision  of  the  Dis- 
trict Judge,  Broach,  in  Suit  No.  1  of  1921. 

Mr.  G.  N.  Thakor  (with  him  Mr.  M.  K. 
Thakore),  for  the  Appellant. 

Mr.  S.  S,  Patkar,  Government  Pleader,  for 
the  Respondent. 

JUDGMENT.— The  first  plaintiff  is  the 

Sroprietor  of  the  Firm  of  Haji  Tar  Mahomed 
asan.  The  second  plaintiit  is  the  mana- 
ger of  the  Broach  shop  of  the  firm.  Plaint- 
iff No.  1  resides  in  the  town  of  Upleta  in 
Qondal  State  in  Kathiawar.  He  has  various 
shops  in 'the  British  territory,  and  three 
shops  in  the  Baroda  State.  The  income  of 
each  shop  is  received  direct  from  the  shop 
by  the  plaintiff  at  Upleta.  The  Jncome  Tax 
Collector  of  the  Broach  City  assessed  the 
income  of  the  plaintiffs  on  the  income  which 
was  earned  or  accrued  within  the  British 
territory.  He  also  sought  to  levy  income-tax 
on  the  income  earned  by  the  shops  in  the 
Baroda  State.  Eventually  the  plamtift  had 
to  file  these  three  suits  for  a  declaration 
that  the  Income  Tax  Officer  could  not  levy  a 
tax  on  the  income  of  the  shops  of  the  firm 
of  plaintiff  No.  1  situate  at  Miyagam,  Kar- 
wanand  Badharpur  in  the  Native  State 
of  Baroda. 

The  first  question  is  whether  the  plaintiff 
•was  not  barred  from  bringing  these  suits  by 
the  provisions  of  s.  39  of  the  Indian  Income 
Tax  Act  II  of  18&6,  which  says  that  no  suit 
shall  lie  in  any  Civil  Court  to  set  aside  or 
modify  any  assessment  under  this  Act.  If 
the  assessment  is  clearly  ultra  vires  then  we 
do  not  think  that  the  provisions  of  that 
apply.  la  this  case  the  Income 


351 


Tax  Collector  of  Broach  seeks  to  assess  a 
resident  of  the  Gondal  State  on  the  profits 
made  in  the  Baroda  State  and  unless  he  can 
piove  that  those  profits  arose,  or  were  ie- 
ceived,  in  British  India,  then  clearly  tLe 
assessment  is  ultra  vires. 

It  is  not  suggested  that  the  profits  weie 
received  in  Bntish  India,  but  it  is  con  tended 
that  the  profits  accrued  or  arose  in  British 
India  The  Judge  held  that  kthe  plaint- 
iff had  proved  that  fact,  but  the  argument 
upon  which  his  conclusion  is  based  is  clear- 
ly fallacious.  He  says: — "For  plaintiff  it  is 
contended  that  each  branch  is  a  separate 
entity,  the  branches  in  British  India  meiely 
pui chase  to  order  arid  get  their  commiesion 
on  the  market  price  and  merely  act  as  any 
other  business  would  do.  The  decision  is  a 
different  one,  but  I  think  this  is  a  case  in 
which  the  profits  arise  or  accrue  in  British 
India  indirectly  for  the  profits  arise  from 
the  growth  of  the  crops,  conversion  into 
grain  and  purchase  here  though  the  ultimate 
profit  is  made  in  Baroda  State.11 

If  we  take  an  instance,  which  must  con- 
stantly be  happening,  of  the  manager  of  a 
Baroda  Branch  of  the  plaintiff's  firm  send- 
ing an  order  to  his  commission  agent  in 
Bombay  for  certain  bales  of  cotton,  or  bags 
of  wheat,  and  the  cotton  or  wheat  is  sent  to 
Baroda  and  sold  there  at  a  profit,  it  cannot 
possibly  be  said  that  the  profit  arose  in 
British  India  because  the  goods  may  have 
come  from  Bombay  or  some  other  town  in 
British  India.  It  is  quite  clear  that  the 
profits  are  earned  wheie  the  actual  money  is 
earned  in  excess  of  the  expenditure  incurred. 

That  was  decided  in  In  re  Aurangabad 
Mills  Ltd.  (I)  where  the  Court  referred  to 
the  case  of  Commissioner  of  Taxation  v. 
Kirk  (2). 

On  the  question  where  the  ultimate  pro- 
fits arose  which  would  entitle  the  Income 
Tax  Authority  to  levy  a  tax  on  profits,  the 
Judge  admits  that  the  ultimate  profits  were 
made  in  the  Baroda  State. 

We  think,  therefore,  that  the  profits  arose 
in  the  Baroda  State.  The  decrees  in  all  the 
three  suits  will  be  reversed  on  the  ground 
that  in  come- tax  was  levied  without  autho* 
rization,  and  the  appeal  allowed  with  costs* 
Plaintiff  will  be  entitled  to  refund  of  the 
money  he  has  paid,  except  in  F.  A  No.  §2^ 
where  the  refund  \\ill  be  limited  to  the 
amount  claimed  in  the  appeal,  viz.  Rs.  460. 

z.  K.  Appeal  allowed. 

(1)  G4  Ind.  Cas.  9;  45  D.  1286;  23  Bom.  L.  I?.  570. 

(2)  (1900)  A,  0.  588;  69  L,  J,  F,  0.  87;  83  L,  T,  4, 


KONfe  t>,  MUTHBPALANI  OHBTTl, 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1413  OF  1922. 

April  17,  1925. 

Present : — Mr,  Justice  Phillips. 
8  INN  ANNA  KONE  AND  OTHERS- 
DEFENDANTS  Nos.  3  AND  6  TO  12— 
APPELLANTS 

versus 

MUTHUPALANI  OHETTI  AND  ANOTHBR— 

PLAINTIFF  AND  DEFENDANT  No.  1 — 

RESPONDENTS. 

Civil  Procedure,  Code  (Act  V  of  1908) ,  s.  H— Res 
judicata— -Decrees  in  connected  suits— Appeal  against 
only  one  decree — Decree  not  appealed  from,  whether 
res  judicata — Appeal,  maintainability  of. 

Where  two  connected  suits  are  tried  and  decided 
together  on  the  same  facts,  but  an  appeal  is  filed 
against  one  decree  only,  the  decree  not  appealed  from 
does  not  operate  as  res  judicata  so  as  to  bar  the  hear- 
ing the  appeal. 

Panchanada  Velan  v.  Vaithinatha  Sastrial,  29  M. 
333;  16  M.  L,  J.  63,  followed. 

Bommadevara  Naganna  Naidu  Bahadur  v.  Ravi 
r--  :  . .  -•  76  Ind.  Cas.  594;  46  M.  895;  (1923)  M. 
\\'.  N  ,MI  L'l  VL.J.  726;  (1923;  A.  I.  K  (P.  C.)  167; 
33  M.  L.  T.  262;  45  M  L  J.  657;  25  Bom.  L.  R,  1290; 
18  L.  W,  913;  28  C.  W.  N.  568;  39  O.  L.  J,  312;  50  I  A. 
301  (P.  C.),  distinguished. 

Second  \  appeal  against  a  ..decree  of  the 
Court  of  the  Second  Additional  Subordinate 
Judge,  Madura,  in  A.  S.  No.  93  of  1921, 
preferred  against  that  of  the  Court  of  the 
Second  A  dditional  District  Munsif ,  Madura, 
in  O.  8.  No.  46  of  1919. 

Mr.  T.  L.  Venkatarama  Iyer,  for  the 
Appellants. 

Mr.  K.  V.  Sesha  lyengar,  for  the^Respon- 
dents- 

JUDGMENT.— The  appellants  set  up 
a  peculiar  custom  in  their  community  that 
widows  and  daughters  were  excluded  by  the 
reversioners  of  the  last  male  member  of  a 
family  and  this  custom  has  been  found  by 
the  lower  Appellate  Court  not  have  been 
proved. 

The  finding  is  objected  to  on  the  ground 
that  it  is  bad  in  law,  but  I  have  not  been 
referred  tq  any  statement  in  the  judgment  in 
which  the  law  has  been  wrongly  propound- 
ed and  the  arguments  here  have  mainly 
been  directed  to  showing  that  adequate  weight 
has  not  been  attached  by  the  learned  Sub- 
ordinate Judge  to  certain  portions  of  the 
evidence.  It  is  also  contended  that  two  im- 
portant statements  made  by  the  plaintiff's 
witnesses  have  not  been  considered  at  all. 
The  evidence  of  these  witnesses  has  been 
dealt  with  by  the  Subordinate  Judge  and 
there  is  nothing  so  vital  in  these  so-called 
admissions  as  to  make  it  obligatory  on  the 
Subordinate  Judge  to  deal  with  them  in 


[94  I.  6. 19T6] 

greater  detail.  The  whole  of  the  ^evidence 
is  oral  although  the  custom  is  sard  to  be 
one  which  is  in  accordance  with  the  law 
which  prevailed  before  the  present  system 
of  Hindu  Law  came  into  being  and  con- 
sequently must  have  been  in  existence  for  an. 
incredibly  long  period,  the  Judge,  therefore, 
rightly  relies  on  the  argument  that  not- 
withstanding this  fact,  there  is  no  document- 
ary evidence  to  support  the  custom.  Certain 
documents  are  alleged  to  be  in  existence 
which  have  not  been  produced  and  the  appel- 
lants rely  entirely  on  oral  evidence.  The  Sub- 
ordinate Judge  has  found  that  to  be  totally 
inadequate  and  I  see  no  reason  to  differ  from 
his  conclusion.  An  attempt  is  made  to 
support  the  custom  by  a  statement  in  the 
District  Gazetteer  where  similar  custom  in 
this  community  is  referred  to,  but  the  cus- 
tom there  set  out  is  not  in  accordance  with 
the  custom  pleaded  in  this  case  and,  there- 
fore, does  not  at  all  corroborate  the  existence 
of  the  custom  pleaded.  I  see  no  reason  for 
not  accepting  this  finding  of  the  Subordinate 
Judge  and,  therefore,  confirm  it.  * 

A  further  point  is  argued,  namely,  that  the 
question  at  issue  in  this  appeal  was  res 
judicata  because  in  a  connected  suit  tried 
with  this  one  and  decided  at  the  same  time 
no  appeal  was  preferred.  This  question 
has  heen  expressly  decided  by  a  Full  Bench 
of  this  Court  in  Panchanada  Velan  v. 
Vaithinatha  Sastrial  (i)  and  I  am  bound  by 
that  decision.  It  is  argued  that  tfrat  deci- 
sion has  been  overruled  by  the  Privy  Council 
decision  in  Bommadevara  Naganna  Naidu 
Bahadur  v.  Ravi  Venkatappayya  (2).  I  have 
already  considered  this  point  in  a  previous 
case,  Second  Appeal  No.  1643  of  1H22,  where  I 
came  to  the  conclusion  that  Panchanada 
Velan  v.  Vaithinatha  Sastrial  (1)  was  not 
expressly  overruled  and  I  am  still  of 
the  same  opinion.  Applying  Panchanada 
Velan  v.  Vaithinatha  Sastrial  (1)  the  Sub- 
ordinate Judge  is  right  in  hearing  this 
appeal  and  deciding  it  on  the  merits. 

The  second  appeal  is,  therefore,  dismissed 
with  costs. 

V.  N.  V. 

N,  H.  Appeal  dismissed. 

(1)  20  M,  333;  16  M.  L.  J.  63, 

(2;  76  Ind.  Cas.  594;  46  M.  895;  (1923)  M,  W.  N.554; 
21  A.  L.  J.  726;  (1923;  A  I.  K.  (P.  0.)  167;  33  M.  L  T, 
262;  45  M.  L.  J.  657;  25  Bom.  L.  R.  1290;  18  L.  W. 
913;  28  0.  W.  N.  588;  39  0.  L.  J.  312;  50  I.  A,  301 
(P.  0.). 


1. 0.1926] 


SftI  KISHBN  V.  CHANDRA  SEKtfAR  BAK8H  8INQH. 


353 


ALLAHABAD  HIGH  COURT. 

FIRST  APPEAL  FROM  ORDER  No.  200  OF  1925. 

December  11,  1925. 
Present:-  Mr.  Justice  Walsh  and 

Mr.  Justice  Kanhaiya  Lai. 

Bahora  SRI  KISHEN  AND  ANOTHER 

—DEFENDANTS— APPELLANTS 

versus 

Kunwar  CHANDRA  SEKHAR 
BAKSH  SINGH  AND  OTHERS— PLAINTIFFS— 
RESPONDENTS. 

Preemption — Wajib-ul-arz  embodying  custom — 
Partition  of  village— Agreement  to  observe  custom 
irrespective,  of  partition — Agreement,  whether  binding — 
Fresh  wajib-ul-arz,  whether  necessary 

Ordinarily  where  a  partition  of  a  village  bas  taken 
place,  the  joint  ownerbhip  is  destroyed,  and  each 
mahal  becomes  a  separate  unit  for  (lie  purpose  of 
regulating  the  lights  of  the  no-sharers  forming  the 
proprietary  body  of  that  mahal  inter  se.  |p  353,  col.  2  ] 

Where,  however,  the  wajib-ul-arz  relating  to  the 
village  recognises  the  existence  of  a  custom  of  pre- 
emption amongst  the  co-sharers  of  the  village,  and 
when  the  village  is  divided  by  partition  into  different 
mahals,  the  co-sharers  agree  to  the  partition  subject 
to  the  reservation  that  the  custom  will  continue  in 
fores  irrespective  of  that  partition,  and  that  a  co- 
sharor  of  one  mahal  would  be  entitled  to  pre-empt  in 
respect  o*f  pioperty  situated  in  another  mahal,  the 
reservation  operates  as  a  condition  precedent  to  the 
partition  and  is  as  much  binding  on  the  co-sharers, 
who  are  parties  to  the  partition  proceeding,  as  the 
partition  itself  It  is  not  necessary  that  a  fresh  w'ljib- 
uJ-arj  should  be  prepared  at  the  time  of  partition  in 
respect  of  each  mahal  embodying  such  a  custom. 
[ibid  ] 

Digambar  Singh  v.  Ahmed  Sayeed  Khan,  28  Ind 
Gas  34;  37  A.  12i)f  13  A  L.  J  236,  19  C  \V.  N  393,  17 
M.  L  T.  193,  2  L.  W  303,  21  G  L,  J.  237;  28  M  L.  J. 
550,  17  Bom.  L.  R.  393,  (1915)  M  W.  N  581,  42  L  A.  10 
(P.  C.),  referred  to. 

First  appeal  from  an  order  of  the  District 
Judge,  Mainpuri,  dated  the  24th  of  March 
1925. 

Mr.  N.  Upadhiya,  for  the  Appellants. 

JUDGMENT.— This  appeal  arises  out 
of  a  suit  for  pre-emption,  and  the  question 
for  consideration  is  whether  a  custom  of 
pre-emption  recorded  in  the  ivajib-ul-arz 
framed  prior  to  the  partition  of  the  village 
can  be  enforced  after  the  village  has  been 
partitioned  by  a  co-sharer  of  one  mahal  in 
respect  of  property  situate  in  another  mahal. 
The  Court  of  first  instance  dismissed  the 
claim,  but  the  lower  Appellate  Court,  rely- 
ing on  the  decision  of  their  Lordships  of 
the  Privy  Council  in  the  case  of  Digambar 
Singh  v.  Ahmed  Sayeed  Khan  (1),  -held  that 
in  the  absence  of  a  fresh  wajib-ul-arz  pre- 

(1)  28  Ind  Gas.  34;  37  A,  129;  13  A.  L,  J  236;  10 
0.  W.  N.  393;  17  M.  L.  T.  193;  2  L,  W.  303;  21  0,  L.  J, 
237;  26  M.  L.  J.  556;  17  Bora.  L,  R.  893;  (1015)  M.  W, 
U,  681;  42 1.  A.  10  (P,  0.). 


pared  at  the  time  of    partition,    indicating 
a  contrary  intention,  it  cannot  be  presumed 
as  a  matter  of    law  or  principle    that  the 
custom  of  pre-emption  in  force  before  par- 
tition was    no  longer  to    have    effect    or 
operation.    It  referred  to    the  tarz  taqsim 
prepared    at    the    time  of    the    partition, 
wherein  it  was  stated  as  a  matter  of  arrange- 
ment between   the    co-sharers,   which    the 
partition  officer  had  accepted  and   the   Col- 
lector had  confirmed,  that  a    co-sharer  in  a 
mahal  will  have  a  right  of  pre-emption  in 
respect  of  the  property  of  the  other  ma hal 
despite    the  partition.     Section   114  of  the 
U.  P.    Land  Revenue  Act,  III  of  1901,  pro- 
vides for  the  preparation  of  a   tarz  taqsim 
or    partition   proceeding    determining  the 
principles  which  shall  govern  the  partition, 
detailing  how  the  partition  is  to   be  made, 
and   deciding  all   disputed  questions  that 
may  have  arisen   in  connection   therewith. 
A  partition  is  subsequently  effected  in   ac- 
cordance with  the  principles  so   laid  down 
in  the  partition  proceedings.    If  reservation 
is  made  in  favour  of  a  custom  of  the    kind 
here  in  question,  that  reservation  operates 
as  a  condition  precedent  to  the    partition 
and  is  as  much  binding  on   the  co-sharers, 
who  arc  parties  to  the  partition  proceeding, 
as  the  partition  itself.    It  is  not  necessary 
that  a  fresh  wajib-ul-arz  should  be  prepared 
at  the  time  of  partition  in  respect  of  each 
mahal,    embodying  such  a   custom.      The 
wajib-ul-arz relating  to  the  village  recognis- 
ed the  existence  of  a  custom  of  pre-emption 
amongst  the  co- sharers  of  the    village,  and 
when  the  village  was    divided  by  partition 
into  different  mahals,  the  co-sharers  agreed 
to  the  partition  subject  to  the  reservation 
that  the  custom  will  continue  in  force  irres- 
pective of    that    partition,  and    that  a  co- 
sharer  of  one  mahal  would   be  entitled  to 
pre-empt  in  respect  of  property  situated  in 
another  mahal.    Ordinarily  where  a  parti- 
tion has  taken  place,  the  joint  ownership  is 
destroyed,    and    each    mahal     becomes    a 
separate  unit  for  the  purpose  of  regulating 
the  rights    of  the  co-sharers,  forming  the 
proprietary  body  of  that  mahal  inter  se.  But 
in  this   particular  case    the  partition    was 
made    subject  to  the    reservation    that  so 
far  as  the  custom  of  pre-emption  was  con- 
cerned, it  was  to  continue  in  force  irrespec- 
tive of  the  partition,  or  in  other  words,  as 
if  the  interests  of   the  co-sharers     of  the 
village  in  the  different  mahals  had  remained 
undisturbed.    The  defendant  vendee   is  a 
stronger.    The  plaiatiff  pre-emptorte   aco* 


351. 


VIRAPfA  GOVINDAPPA  KONfiADDI   V.  BASAPPA  V1RBHADBAPPA. 


sharer  in  one  of  the  mahals  and  as  such  he 
is  entitled  to  preference  as  against  the  for- 
fcier.  There  is  no  reason  in  these  circum- 
stances for  interfering  with  the  decision  of 
the  lower  Appellate  Court.  The  appeal  is 
dismissed  under  0.  XLI,r.  11,  C.  P.  C. 
N.  H.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  793  OF  1923* 

August  17,  1925. 

Present: — Mr.  Justice  Madhavan  Nair. 

K.  VENKAT  RKDDJAR&  Co.— 

PETITIONER 

versus 
DES1KACHARIAR— RESPONDENT. 

Interest  Act  (XXXII  of  1839),  s  1-  Interest-- 
Absence of  demand — General  principles. 

In.  the  absence  of  demand  for  interest,  a  plaintiff  is 
not  entitled  to  interest  under  the  Interest  Act 

Muhammad  Abdul  Gaffur  Rowther  v.  llamida  Beevi 
Ammal,  52  Ind,  Cas.  505,  42  M.  661;  (1919)  M.  VV.  N. 
484;  25  M.  L.  T,  242;  36  M.  L.  J.  456  and  Arunachalam 
Chettiar  v.  Rajeswara  Setupati,  71  Ind.  Cas.  257;  15 
L.  W.  63;  (1921)  M.  W.  N,  873;  30  M.  L.  T.  84;  42 
M.  L.  J.  74;  (1922;  A  I.  R  (M  )  55,  distinguished. 

On  general  principles  of  law,  interest  is  not  due  on 
money,  unless  it  was  intended  to  be  paid  or  unless 
such  intention  could  be  implied  from  the  usage  of 
trade,  as  in  the  case  of  mercantile  instruments. 

Petition,  under  s.  25  of  Act  IX  of  1887, 
praying  the  High  Court  to  revise  the  decree 
of  the  Couit  of  the  Subordinate  Judge, 
Chingleput,  in  8.  C.  S,  No.  2  of  1923  on  the 
file  of  his  Court, 

Mr.  N.  Swaminadhan,  for  the  Petitioner. 

Mr.  G.  N.  Thirumalachariar,  for  the  Re- 
spondent. 

JUDGMENT.— The  ^  plaintiff  is  the 
petitioner.  The  plaintiffs  suit  was  to  re- 
cover principal  and  interest  on  account  of 
dealings  carried  on  between  him  and  the 
defendant  from  the  22nd  May  1916  to  the 
10th  of  December  1922.  The  plaintiff  has 
been  given  a  decree  tor  Rs.  196  but  he  has 
not  been  awarded  interest  on  that  amount. 
The  question  in  this  case  is  whether  the 
lower  Court  was  wrong  in  refusing  'interest'- 
to  the  petitioner.  Interest  is  claimed  under 
the  Inteiest  Act  and  on  general  principles 
of  law. 

In  view  of  the  finding  that  there  was  no 
demand  for  interest  by  the  plaintiff,  the 
plea  that  he  is  entitled  to  interest  under  the 
interest  Act  cannot  be  accepted. 

The  next  question  is  whether  the  plaint- 
ig  is  entitled  to  interest  on  general  princi- 


o. ly?6j 

of  law.  It  is  well-known  that  under 
the  rules  of  English  Common  Law,  interest 
is  not  due  on  money,  unless  interest  was 
intended  to  be  paid  or  unless  it  is  implied 
from  the  usage  of  trade,  as  in  the  case  of 
mercantile  instruments.  Applying  this 
principle,  the  petitioner  is  not  entitled  to 
interest  in  this  case  because  the  learned 
Judge  in  para.  4  finds  that  the  parties  com- 
menced dealings  on  the  assumption  that 
no  interest  would  be  demanded.  This 
finding  that  interest  was  not  intended  to 
be  paid  is  supported  by  the  evidence  of 
D.  W.  No.  1.  Accepting  this  finding,  I  am  of 
opinion  that  plaintiff  is  not  entitled  to 
interest  even  under  the  general  principles 
of  the  Common  Law. 

The  decision  in  Muhammad  Abdul  Gaff ur 
Rowther  v.  Hamida  Beevi  Ammal  (1)  and 
Arunachalam  Chettiar  v.  Rajesuara  Setupati 
(2)  are  inapplicable  to  the  present  case,  in- 
asmuch as  it  has  been  found  that  interest 
was  not  intended  to  be  charged,  when  the 
parties  commenced  their  dealings,  1  may 
also  mention  that  interest  has  not  been 
claimed,  based  on  the  usage  of  trade. 

1  think,  therefore,  that  the  decision  of  the 
lower  Court  is  right.  I  dismiss  this  revision 
petition  with  costs. 

v.  N.  v. 

N.  H.  Petition  dismissed. 

(1)  52  Ind.  Cas.  505;  42  M   661;  (1919)  M  W.  N.  484; 
25  M.  L.  T  242,  36  M.  L.  J.  456. 

(2)  71  Ind.   Cas.  257;   15  L.  W.  63;    (1921)  M.  W.  N, 
873;  30  M,  L.  T,  84;  42  M.  L.  J.  74;  (1922)  A.  I.  R.  (M.) 
55, 


BOMBAY  HIGH  COURT* 

FJKST  CIVIL  APPEAL  No.  351  OF  1924. 

September  17,  1925. 

Present:— SIT  Norman  Macleod,  K?,, 

Chief  Justice,  and  Mr.  Justice  Coyaiefc, 

VIRAPPA  GOVINDAPPA  KONRADDI— 

DEFENDANT— APPELLANT 

versus 

BASAPPA  VIRBHADRAPPA 
KULKARNI — PLAINTJFF — RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  8.  151~-* 
Inherent  power  of  Court,  when  to  be  exercised. 

Where  a  party  does  not  take  advantage  of  the  right 
of  appeal  granted  to  him  by  the  0.  P.  0.,  he  cannot 
be  allowed  to  come  to  the  Court  and  ask  the  Court  to 
exercise  its  powers  under  s.  151  of  the  Code. 

First  appeal  from  the  decision  of  the 
First  Class  Subordinate  Judge  of  Dhanvar, 
in  Darkhast  No,  251  of  1923,  ' 


!  I,  0. 1926] 


fcAtlANI  ANN!  *.  THIRUMALAYAt>PA  MUDALIAR, 


$55 


Mr.  A.  G.  Desai,for  the  Appellants. 

Mr.   P.  V.    Kane,  for  the  Respondents. 

JUDGMENT.— The  defendants  ap- 
plied for  the  execution  of  the  consent 
decree  in  Suit  No.  350  of  1919,  dated  Novem- 
ber 22, 1920,  whereby  it  was  ordered  that 
the  plaintiffs  should  pay  to  defendants 
Nos.  1-5  Rs.  13t(JOO  by  instalments.  If  the 
plaintiffs  could  not  pay  the  amount,  the 
defendants  were  entitled  to  recover  the 
amount  by  sale  of  the  property  in  suit 
which  was  charged  with  payment  of  the 
decree.  The  property  was  sold  and  the 
sale  proceeds  were  not  sufficient  to  satisfy 
the  decree.  Thereupon  the  defendants 
applied  for  the  attachment  of  certain  other 
property  belonging  to  the  plaintiffs.  On 
October  13,  1923,  an  order  was  made  and  it 
was  transferred  to  the  Collector  for  further 
execution  under  s  66,  0.  P.  C.  The  plaint- 
iffs might  have  appealed  against  that  order. 
But  instead  of  doing  that,  they  made  a 
miscellaneous  application  to  the  Judge 
praying  that  the  defendants1  darkhast 
should  be  dismissed.  We  do  not  know  how 
it  was  competent  to  the  Judge  to  entertain 
that  application.  It  is  suggested  now  that 
he  could  deal  with  it  under  s.  151  of  the 
Code.  But  it  certainly  is  not  intended  that 
where  a  party  does  not  take  advantage  of  the 
right  of  appeal  granted  him  by  the  Code 
that  he  should  be  allowed  to  come  to  the 
Court  and  ask  the  Court  to  exercise  its 
powers  under  s.  151. 

We  think,  therefore,  that  the  Judge  was 
not  competent  to  dismiss  the  darkhast  on 
this  application.  The  appeal  must  be 
allowed.  The  darkhast  must  proceed.  The 
appellant  is  entitled  to  his  costs  throughout. 

z.  K.  Appeal  allowed. 


MADRAS  HIGH  COURT, 

CIVIL  APPEAL  No.  73  OF  1922. 

August  18,  1925. 

Present :—  Justice  Sir  Charles  Gordon 
Spencer,  KT.,  and  Mr.  Justice  Viswanatha 

Sastri. 

MEDAI  DALAVOY  KALIANI  ANNI 
— PLAINTIFF — APPELLANT 

versus 

MEDAI DALAVOY  THIRUMALAYAPPA 
MUDALIAR— DEFENDANTS  Nos,  1  TO  9 

—RESPONDENTS. 
tt  indu    Law— Widows— Partition— Relinquishment 


There  is  no  legal  obstacle  to  prevent  one  of  two 
Hindu  co-widows  from  BO  far  releasing  her  right  of 
survivorship  as  to  preclude  her  from  recovering  fiom 
an  alienee,  after  the  other  co-widow's  death,  propeity 
given  by  way  of  partition  to  the  latter  and  alienated 
by  her.  The  partition  may  be  by  document  or  oral. 
[p.  358,  col.  2.] 

Gomathi  Ammal  v.'  Kupputhayi  Ammalt  14  M.  L.  J. 
175,  followed. 

It  ia  a  question  of  intention  in  each  case,  to  be 
gathered  from  the  deed  of  partition,  if  any,  and  the 
surrounding  circumstances,  whether  the  widows 
retained  or  renounced  their  rights  of  survivorship. 

It  has  to  be  proved  by  clear  evidence  that  the 
widows  were  conscious  of  the  right  of  survivorship 
possessed  by  them,  and  that  they  intended  to  give  up 
such  right,  [p.  358,  col.  2,  p  359,  col,  l.j 

Appeal  against  a  decree  of  the  Court  of 
the  Additional  Subordinate  Judge,  Tinne- 
velly,  in  0.  S.  No.  39  of  1919  (0.  8.  No.  68 
of  1918  of  the  Sub-Court,  Tinnevelly). 

Mr.  S.  Muthia  Mudaliar,  for  the  Appel- 
lant. 

Messrs.     A.     Krishnaswamy     Iyer>     Kt 
Subramania    Pillai  and    S.  Sankara 
for  the  Respondents. 

JUDGMENT* 

Viswanatha  Sastri,  J.— Appeal  by 
plaintiff    against  the   decree  of  the  Court 
of    the   Additional   Subordinate   Judge  of 
Tinnevelly,  in  0.  S.  No.  39  of   1919.    The 
facts  which   gave   rise    to   the  suit  are  as 
follows  :     One     Bhanmuga    Kumaraswami 
Mudaliar  dit d  on  January  15th,  1892,   leav- 
ing two  widows  Parasakti  Vadivu    Anni, 
and  Kaliani  Anni  (plaintiff)    as  his  heirs. 
The  two  widows  "to  suit  their  convenience11, 
divided  some  of  the  properties  into  equal 
moities,  and  the    income  from  other   pro- 
perties  was  also  similarly  divided,  as  also 
debts   due  to  the    family,    Parasakti    died 
on  December  10th,  1915,  and,  oil  her  death, 
all   the  properties  which  she  was  enjoying 
accrued  to  plaintiff  by  right  of  survivorship. 
The  properties  which  were  in  the   enjoy- 
ment of  Parasakti  yielded  an  annual  income 
of  Rs.  6,000.    The  1st  defendant  who  is  the 
next  reversioner,  fraudulently  induced  Para* 
sakti  to  execute  a  sale-deed  in  his  favour  with 
respect  to  the  properties  specified  in  some 
of    the  schedules  ;   and  he  also  induced  her 
to  execute  atxother  sale-deed  with  respect 
to  certain  other  properties  in    favour    of 
the  7th  defendant's  father,  btnami  for  him- 
self.   A  third    sale-deed  was  executed  ia 
respect  of  certain  other  properties  in  favour 
of  one  Ramalinga  Mudaliar,  who  is  the  son 
of    1st  defendants  maternal   uncle.    Sub- 
sequent to  these  transactions,  the  1st  defend- 
ant   obtained  two  other  pale  deeds  with 
respect  to    properties   comprised  in  Sch, 


300 


KALIANI  ANNI  V,  THIRD MALAYAPPA  MUDALIAR, 


i.  u. 


III,  and  he  also  obtained  a  usufructuary 
deed  of  mortgage  with  respect  to  pro- 
perties comprised  ia  Sch.  XXVI.  All 
these  transactions  were  entered  into  with- 
out any  legal  necessity  and  with  a  view  to 
defraud  plaintiff.  The  1st  defendant  also 
received  itioritefc  from  the '  Taluk  Board, 
Shermadavij  which  were  legally  due  to 
plaintiff.  Defendants  N6s.  2  to  4  are  the 
undivided  s6ns  of  the  1st  defendant.  De- 
fendants NOB.  5  and  6  are  the  widows  of 
Renganatha  Mudaliar  the  undivided  elder 
brother  of  the  1st  defendant ;  and  the  7th 
defendant  is  the  son  of  the  1st  defendant's 
sister.  Hence  the  suit  for  the  recoveiy  of 
the  properties  that  were  in  the  possession 
of  Parasakti  Vadivu  Anni,  together  with 
mesne  profits.  The  1st  defendant  contend- 
ed that  plaintiff  and  Parasakti  effected  an 
absoulte  partition  of  the  properties,  that 
each  gave  up  the  right  she  had  to  succeed  to 
the  properties  that  fell  to  the  share  of  the 
other  by  right  of  survivorship ;  that  the 
alienations  sought  to  be  impeached  were 
for  purposes  binding  on  the  estate,  and 
that  plaintiff  was  not  entitled  to  any  relief. 
Defendants  Nos.  2  to  6  adopted  the  written 
statement  of  the  1st  defendant.  The  7th 
defendant  contended  that  the  alienations 
in  his  favour  were  for  purposes  binding 
on  the  estate.  The  8th  defendant  was 
added  as  a  supplementary  defendant  on  the 
ground  that  the  property  specified  in  Sch. 
XXV  was  in  her  possession,  but  she  dis- 
claimed all  interest  therein.  The  9th  defend- 
ant was  also,  subsequent  to  the  suit,  added 
as  a  party,  on  the  ground  that  he  claimed 
an  interest  in  Schs.  XXV  and  LIX.  He 
pleaded  that  the  alienations  were  bind- 
ing on  the  estate.  The  learned  Subordinate 
Judge  held  that  the  division  between  the 
widows  was  only  for  the  sake  of  conveni- 
ence, that  neither  of  them  gave  up  the  right 
she  had  to  succeed  to  the  properties  in 
the  possession  of  the  other,  and  that  the 
plaintiff  was  entitled  to  possession  of  the 
properties  comprised  in  all  the  Schedules, 
except  Schs.  II,  XII,  and  XIII.  The  appeal 
relates  to  properties  with  respect  to  which 
possession  was  not  decreed  and  the  1st 
defendant  filed  a  memorandum  of  objections 
with  respect  to  the  items  decreed  and  which 
were  in  his  possession.  A  similar  memo- 
randum of  objections  was  filed  by  the  7th 
defendant. 

In  dealing  with  the  memorandum  of 
objections  t^e  question  to  be  considered  is, 
the  nature  of  the  estate  taken  up  by  the 


widows  by  reason  of  the  arrangement  said 
to  have  been  come  to  between  them.  The 
contention  of  the  plaintiff  is  that  they  were 
in  enjoyment  of  separate  portions  simply 
for  the  sake  of  convenience,  whereas  the 
contention  of  the  defendants  is  that  the 
partition  gave  each  widow  an  absolute  in- 
terest in  the  properties,  and  that  the  widows 
parted  with  their  right  of  survivorship. 
There  is  no  document  to  evidence  the  par- 
tition of  the  properties  now  in  suit,  but  it 
was  contended  on  behalf  of  the  respondents 
that  the  partition  was  on  the  lines  of  Ex. 
L  of  the  date  January  30th,  1892.  The  cir- 
cumstances which  led  up  to  the  execution 
of  J5x.  L  are  these.  Shanmuga  Kumaraswaini 
died  on  January  15th,  185)2 ;  and,  on  Feb- 
ruary 10th  1892,  Avudiayammal  Anni  widow 
of  his  deceased  brother,  presented  for  re- 
gistration a  document  which  purported  to 
be  a  Will,  and  which  was  put  forward  as 
havingbeen  executed  by  Shanmuga  Kumara- 
swami on  14th  January  1892.  The  registra- 
tion of  the  Will  appears  to  have  been  oppos- 
ed on  behalf  of  the  1st  defendant,  as  will 
appear  from  Ex.  AAAAA.  Exhibit  L  came 
into  existence  on  January  30th,  1892,  and 
it  related  to  houses  and  house  sites  which 
have  no  connection  with  the  present  claim. 
To  this  document  plaintiff,  Parasakti  and 
Avudaiyammal  were  parties,  and  the  docu- 
ment recites  that  these  three  persons  had 
acquired  under  the  Will  of  Shanmuga 
Kumaraswami  the  properties  absolutely;  and 
that  the  properties  described  in  the  docu- 
ment were  to  be  enjoyed  in  the  manner 
stated  therein.  The  concluding  words  of 
the  document  on  which  reliance  was  placed 
are  these  "the  properties  belonging  to  the 
respective  persons,  be  enjoyed  by  them 
alone  with  all  rights.11  It  was  urged  on 
behalf  of  the  1st  respondent  that  the  other 
properties.left  by  Shanmuga  Kumaraswami, 
including  the  properties  now  in  suit,  were 
also  divided  in  the  same  manner  in  which 
the  properties  comprised  in  Ex.  L  were 
divided ;  but  there  is  no  document  to 
evidence  the  partition  of  these  properties  ; 
nor  is  the  date  of  the  division  ascertainable 
with  any  degree  of  certainty.  In  her 
evidence,  plaintiff  stated  that  "  Ex.  L  was 
not  brought  into  force  as  there  were  dis- 
putes about  the  Will",  and  this  statement 
of  hers  receives  support  from  the  circum- 
stance that  there  was  admittedly  no  division 
of  the  properties  not  comprised  in  Ex.  L 
into  three  equal  shares,  between  plaintiff 
Parasakti  and  Avudaiyammal,  as  contem- 


[93  I.  0.  192*  j 


KALUNI  ANNI  *   THIfctTMALATAPPA  MUDALUR, 


357 


plated  in  Ex,  L.    Parasakti  gave  evidence 
in    the   Ambasamudram   District  Munsifs 
Court  ia  a  suit  between  her,  plaintiff    and 
1st  defendant ;  and  Ex.  O  is  a  copy  of  the 
deposition    then  given.    This  is  \vhat  ap- 
pears at  page  28  of  the  paper-book.   "After 
the  death  of  my  husband,  the  defendants 
Nos.  2  and  3  and  myself  were  enjoying  his 
properties.     We  were  enjoying  them,  each 
one  share.    For  Fasli  1301,  we  paid  theerra 
in  three  shares1'.    At  page  33  of  the    paper 
book  she  says  "Now  for    the  pa^t  five  or 
six  months  the  2nd   defendant  and   myself 
have  bean  paying  in  two  shares".    She  gave 
her  evidence  in  June  1894,  and  consequently, 
the  payment  of  kist  in   two  sharefl    must 
have  been  only  from  January   1891,  Ex.  M 
of  the  date  July   15th  1893,  is  a  lease  deed 
in  farour  of  plaintiff  and  Parasakti,  and  the 
circumstance  that  the  lease  deed  was  taken 
in  their  joint  names  indicates  that  on  the 
date  of  this  document  there  was  no    divi- 
sion of  the  properties  between  them.  There 
is,   therefore,  strong  ground  for  coming  to 
the  conclusion  that  the  division  of  the  pro- 
perties not  comprised    in    Ex.  L  was   not 
made  at  or  about  the  time  of   Ex.  L   but 
two   years  afterwards.    The  1st    defendant 
Lad   not  examined    himself  and  we  hare 
not   been  referred   to  any  oral  evidence  on 
his  side  as  to  the  division  of  the  properties 
in   suit  in   (he  manner    contended    for    by 
him. 

Prasakti  and  plaint  iff  admittedly  enjoyed 
the  properties  not  comprised  in  Ex.  L,  in 
equal  shares;  and,  it  was  contended  on  be- 
half of  the  1st  defendant  that  this  enjoy- 
ment was  in  pursuance  of  an  arrangement 
between  them  to  the  effect  that  each  was  to 
take  an  absolute  interest  in  the  properties 
each  got;  and  that  there  was  to  be  no  right  of 
survivorship  between  them.  We  are  asked  to 
infer  such  an  arrangement  from  the  follow- 
ing circumstances:  (1)  The  division  of  the 
debts  due  to  the  estate  into  two  equal  shares; 
(2)  the  liability  undertaken  by  each  widow 
to  pay  the  debts  due  from  the  estate,  in 
equal  shares;  (3)  their  conduct  in  pleading 
that  they,  ware  each  liable  to  "pay  only  a 
half  share  in  the  debt,  when  creditors  sued 
them;.  (4)  compromises., made  by  them  in 
such  suits  under  which  each  agreed  to  pay 
a  half  share  in  the  debts;  (5)  Succession 
Certificates  got  by  each  of  them  with  res- 
pect to  half  of  some  of  the  debts;  (6)  each  of 
them  executing  promissory  notes  in  favour 
of  creditors  with  respect  to  a  half  share  in 
the  debts  due  by  their  husband;  (7)  mort- 


gages and  sales  effected  separately,   giving 
the  alienees  absolute  rights  in  the  shares 
enjoyed  by  each;  (8)  each  contributing  half 
the  expenses  for  the  Kattalais  that  had  to  be 
performed;  (9)  each  paying  kist  separate- 
ly for  the  portions  enjoyed  by  her;  and  (10) 
each  suing  the  other  for  contribution    with 
respect  to  excess  payments  made  by  her. 
It  appears  to  me  that  all  these   circumstan- 
ces are  consistent  with  the  division  having 
been  made  for  the  sake  of  convenience.  The 
learned  Vakil  for  the'lst  respondent  con  tend- 
ed that  this  could  not  be  said  with   icspect 
to  the  mortgages  and  sales  effected  separate- 
ly; as  also  with  respect  to  suits  for  contri- 
bution, although  it  may  be  so  said  with 
respect  to  the  other  circumstances.     So  far 
as  suits  for    contribution  go,  I  fail  to  see 
why  such  suits  would  not  lie   in  case  the 
arrangement  had  been  only  for  the  sake  of 
convenience.    The  claim  maybe  based  not 
under  the  Common  Law;  but  under  the 
arrangement  between    the  parties  to  the 
effect  that  each  was  to  pay  a  half  share  in 
the  debts  due  by  her  husband,  and  any 
violation  of  this  arrangement  by  reason  of 
which  one  widow  was   sued  by  a  creditor 
and  made  to  pay  the  entire  debt,  would  cer- 
tainly entitle  her  to  recover  from  the  other 
widow  the  portion  paid  in  excess  of  her 
share.    With    respect    to    -     •'..,        •  and 
sales,  each  widowdid,  no  doubt,  sell  her  half 
share,  but  this  circumstance  could  not  be 
taken  to  indicate  that  each  widow  gave  up 
the  right  of  survivorship  ta    the  portion 
enjoyed  by    the  other  widow,  in  case  she 
survived  her.    Even    in  case  the  division 
had  been  only  for  the  sake  of  convenience, 
the  same  thing  would  have  been  done.  The 
whole  question  is  one  of  intention,  and  there 
is  clear  documentary  evidence  in  the  case 
which,  in  my  opinion,  conclusively  proves 
that  such  an  intention  was  not  present  in 
the  minds  of  the  widows  at  the  time  they 
came  to  enjoy  the  properties  separately.  Ex- 
hibit 0  of  the  date  December  10th,  1909,  is  a 
sale-deed  executed  by  Parasafcii  ip  fewur  of 
the  1st  defendant,  and  therein  tiiQfeUQwing 
appears  "What  belonged  tamy  husbaiadand 
what  he  was  enjoying  and  for  wjiat  an  ar- 
rangement was  made  to  the  effect  that  after- 
wards I  and  Kaliani  Anni  (plaintiff)  should 
enjoy  in  equal  half  shares  for  convenience, 
etc".    A  similar  recital    appears  in  Ex.   D 
which  is  a  document  executed  by  plaintiff 
in  favour  of  1st  defendant  on  June  8th  1910. 
There  was  thus  /a  clear  statement  on  the 
part  of  both  tjie  widows   as  early  ae  1909 


358 


K^LIANI  ANNI  V.  TH1RDMALAYAPPA  MUDALIAR. 


0. 


to  the  effect  that  their  enjoyment  separately 
was  only  for  the  sake  of  convenience.    That 
the  1st  defendant  was  also  under  the  same 
impression  will  appear  from  Ex.  A  which 
is  a  copy  of  the  plaint  presented  by  him  in 
the  Subordinate  Judge's  Court,  Tinnevelly, 
to  which  plaint     plaintiff  and    Parasakti 
were  parties.    In  para.  6  there  ia  a  clear 
statement  to  the  effect  that  the  widows  were 
"for  the  sake  of  convenience"  enjoying  the 
properties  by  halves.    In  para.  7  there  is  a 
statement  to  the  effect  thatplaintiff  (present 
defendant)  was  to  get  the  properties  aftsr  the 
lifetime  of  defendants  Nos.  1  and2  (plaintiff 
and  Parasakti),  and  such  a  statement  would 
not  have  been  made   in  case  the   division 
was  absolute.    In  para.  9  it  was  stated  that 
the  sale  effected  by  the  1st  defendant  with- 
out the  consent  of  the  2nd  defendant  would 
not  be  valid  beyond  the  lifetime  of  the   1st 
defendant.    If  the   division  was  complete 
and  the  right  of  survivorship  was  given  up, 
the  consent  of  one  widow  1o  the  alienation 
effected  by  the  other  widow  would  not  have 
been  necessary.  Exhibit  J  is  the  plaint  in  an- 
other suit  instituted  by  1st  defendant  in  the 
District  Munsif  s  Court,  Ambasamudram  in 
the  year  1902,  to  which  suit    Parasakti  and 
plaintiff  were  parties.    Although  the  name 
of  the  plaintiff  is  given  as  Medai   Dalavoi 
Thitharappa  Mudaliar,  he  is  said  to   be  the 
son  of  Medai  Dalavoi  Kumarasami  Mudaliar, 
and  the  signature  to  the  body  of  the  plaint, 
as  also  to  the  verification,  are  of  Tiruma- 
lappa  Mudaliar,  there  can  beno  doubt  *hat 
the  plaintiff  in  that  suit  was  the  present  1st 
defendant.    In  para.  6  of  this  plaint,  the  1st 
defendant  claims  to  be  entitled  to  all  the 
properties  left  by  Shanmuga  Kumar&swami 
after  the  death  of  the  two  widows,  and  such 
a  demand  would  not  have  been  made  in  case 
there  had  been  a  complete  division  in  status, 
and  the  right  of  survivorship  lost   to  each 
of  the  widows.    There  is,  therefore,  strong 
documentary  evidence  to  indicate  that  the 
widows  intended  the  division  to  be  only  for 
the  sake  of  convenience,  and    that  the   1st 
defendant  was    also  under  the    same  im- 
pression.   Reference  was  made  to  Exs.    XV 
and  XV  (a)  which  are  sale-deeds  executed 
by  Parasakti  in  favour  of    the  1st   defend- 
ant on  the  19th  of  November  1915.    These 
documents  were  admittedly  executed  a  few 
days  before  her  death,  and  she  was  aged  70 
then.    It  is  stated  in  these  documents  that 
Kaliani  had  no  subsequent  interest  in   the 
properties.    It  was  suggested  on  behalf  of 
the  plaintiff  that  the  1st  defendant  acquired 


influence  over  Parasakti  during  her  later 
days,  and  got  from  her  documents  in  his 
favour.  The  1st  defendant  has  not  gone 
into  the  witness-box,  and  the  circumstances 
under  which  Exs.  XV  and  XV  (a)  were 
obtained  have  not  been  explained  .  The  docu- 
ments relating  to  the  ten  circumstances 
above  referred  to,  have  been  dealt  with  in 
detail  by  the  learned  Subordinate  Judge 
and  it  will  serve  no  useful  purpose  to  deal 
with  them  here. 

The  rig&tof  Hindu  widows  to  effect  a  parti- 
tion of  their  husbands'  estate  in  such  a  way 
as  to  release  the  right  of  survivorship  each 
possessed,  was  first  recognised  in  Ramakkal 
v.  Ramasami  Naicken  (1).  It  was  there 
held  that  there  was  no  legal  obstacle  to 
prevent  one  of  two  co-  widows  from  so  far 
releasing  her  right  of  survivorship  as  to 
preclude  her  from  recovering  from  an 
alienee  after  the  other  co-widow's  death, 
property  given  by  way  of  partition  to  the 
latter  and  alienated  by  her.  In  this  case 
there  was  a  formal  registered  partition  deed 
and,  upon  a  construction  of  its  terms  it 
was  held  that  the  right  of  survivorship  was 
given  up.  In  Gomathi  Ammal  v.  Kuppu* 
thayi  Ammal  (2),  the  above  mentioned  case 
was  referred  to,  and  it  was  held  that  it  was 
open  to  daughters  while  effecting  a  parti- 
tion, by  apt  language  to  renounce  their 
right  of  survivorship.  In  that  case  the 
daughters  proceeded  on  the  erroneous  view 
that  they  had  not  a  qualified  but  had  an 
absolute  estate  which  carried  with  it  no 
right  of  survivorship,  and  it  was  held  that 
the  parties  could  not  have  possibly  intend- 
ed to  renounce  and  did  not  renounce  the 
rights  of  each  to  take  as  the  father's  heir. 
The  learned  Judges  observe  that  it  was  a 
question  of  intention  in  each  case,  to  be 
gathered  from  the  deed  of  partition,  if  any, 
and  the  surrounding  circumstances,  whether 
the  daughters  retained  or  renounced  their 
rights  of  survivorship.  In  Subbammal  v. 
Krishna  Aiyar  (3)  there  was  a  deed  of 
partition  between  the  widows;  and,  on  the 
basis  of  the  deed  it  was  held  that  the 
female  heirs  holding  limited  estates  can 
so  divide  as  to  preclude  the  right  of  sur- 
vivorship inter  se.  That  this  could  also  be 
done  by  means  of  an  oral  partition  was 


(1)  22  M.  522;   9  M.  L.  J.  101;    8  Ind,  Dec.  fo. 
373. 

(2)  14  M.  L  J.  175 

(3)  22  lad.  Gas,  399;  26  M.  L,  J.  479, 


[92  1.  C.  1926]  KAUANI  ANNT  v.  THlHDMAL \YAPPA  MUDALIAR. 

held  in  Alamelu  Ammal   v.  Balu  Animal     Subordinate  Judge,  i. 
The  .... 


359 


(4).  The  oral  partition  was  proved;  and 
the  learned  Judge  (Sadasiva  Iyer,  J.),  ob- 
serves as  follows:  "In  this  view,  the  plaintiffs 
having  effected  an  oral  partition  with  Sub- 
bammal,  giving  her  under  the  oral  partition 
agreement  an  absolute  right  in  plaint  pro- 
perties, which  gift  involves  the  relinquish- 
ment  by  themselves  of  their  right  to  claim 
possession  of  the  property  if  they  survived 
Subbammal,  the  said  partition  arrangement 
is  binding  upon  them11.  The  Vakil  for  the 
1st  respondent  referred  to  the  case  of  Har- 
dei  v.  Bhagwan  Singh  (5)  but  it  will  appear 
from  the  observations  at  page  440*  that  the 
arrangement  was  supported,  on  the  gronnd 
that  it  was  a  family  settlement,  and  that 
the  rights  of  the  parties  were  in  doubt 
when  the  partition  was  made. 

The  Vakil  for  the  1st  respondent,  also 
referred  to  the  judgment  in  an  unreported 
case,  Nelakanti  Sundarasha  Rowv.  Ivatuary 
Viyyamma  (6)  but  in  that  case  this  Court 
held  that  there  was  an  arrangement  be- 
tween the  parties  to  the  effect  that  the  di- 
vision was  absolute:  although  the  Trial 
Judge  held  that  such  an  inference  should 
be  drawn  from  the  conduct  of  the  parties. 
The  trend  of  the  decisions  above  referred 
to  indicates  to  my  mind  that  it  has  to  be 
proved  by  clear  evidence  that  the  widows 
were  conscious  of  the  right  of  survivorship 
possessed  by  them;  and  that  they  intended 
to  give  up  such  right.  Exhibit  L  is  of  no 
value  because  the  division  under  it  was 
made  on  the  clear  supposition  that  the 
widows  got  an  absolute  interest  under  the 
Will  left  by  their  husband.  This  document 
cannot,  therefore,  indicate  the  intention 
with  which  the  properties  in  suit  were  di- 
vided; and  there  being  no  other  evidence 
to  indicate  what  the  intention  of  the  parties 
was  when  the  properties  were  divided;  and 
the  circumstances  referred  to  by  the  1st 
defendant's  Vakil  being  not  conclusive  for 
the  purpose  of  proving  division  in  status; 
coupled  with  the  fact  that  Exs.  A,  0,  D 
and  J  prove  in  unmistakable  terms  that 
the  ^di vision  was  only  for  the  sake  of  con- 
venience; the  only  conclusion  that  can  be 
come  to  is  the  one  come  to  by  the  learned 

(4)  26  Ind.  Gas.  455:  28  M.  L  J.  685;  16  M.  L.  T.  592: 
(1915)  M.  W.  N.  26. 

(5)  50  Ind.  Gas.  812;  13  L.  W.  436;  24  G.  W.  N,  105 

,JSiyiInd-  Oaa-401;  48  M.  933;  49  M.  L.  J.  266; 
(1925)  M.  W.  N.  643;  &  L.  W.  398;  (1925)  A.  L  R,  (M.) 

~*i*age  of  13  L,  W.- 


that  there   was 

no  giving  up  by  the  widows  of  the  right 
of  survivorship,  and  that  separate  enjoy- 
ment in  equal  moieties  was  resolved  upon 
only  for  the  sake  of  convenience. 

The  memorandum  of  objections  filed  by 
the  1st  respondent  relates  also  to  aliena- 
tions with  respect  to  properties  in  the 
possession  of  the  1st  defendant,  which  have 
not  been  upheld.  Mr.  Krishnaswami  Iyer 
who  appeared  for  the  respondent  did  not 
urge  any  arguments  impeaching  the  find- 
ing of  the  lower  Court  with  respect  to 
these  alienations 

The  7th  defendant  also  filed  a  memoran^ 
dum  of  objections  with  respect  to  the  sales 
in  his  favour  made  under  Exs.  LXF,  LXII, 
LXIII.  He  is  closely  related  to  the  1st 
defendant,  and  did  not  examine  himself. 
Exhibit  LXI  of  the  date  4th  October  1909 
is  for  a  sum  of  Us.  700,  and  it  recites  that 
this  amount  was  paid  in  cash,  to  meet  the 
pilgrimage  expenses  of  Parasakti  Vadivu, 
There  is  no  evidence  to  show  that  Parasakti 
Vadivu  went  on  a  pliriiirujjro  at  or  about 
the  time  of  Ex,  LXI,  and  the  circumstance 
that  the  plaintiff  admitted  that  she  went 
twice  to  Benares  could  not  be  availed  of 
because,  she  has  not  stated  that  Parasakti 
Vadivu  went  to  Benares  at  or  about  the 
time  of  Ex.  LXL  Moreover,  the  properties 
which  were  in  the  possession  of  Parasakti 
Vadivu  were  yielding  an  income  of  Rs.  5,OuO 
to  Rs,  6,000  a  year;  and  it  cannot  be  said 
that  she  could  not  have  gone  on  a  pilgrim- 
age without  effecting  a  sale  of  immove- 
able  properties. 

Exhibit  LXII  dated  November  29th  1910, 
appears  to  be  a  rectification  deed  and  is 
connected  with  and  goes  with  Ex.  LXI. 

Exhibit  LXIII  of  the  date  December  6'th 
1915  purports  to  be  for  a  sum  of  Rs.  2,000 
and  this  amount  is  said  to  have  been  bor- 
rowed by  Parasakti  Vadivu  ufor  the  pur- 
pose of  establishing  a  fund  for  the  expenses 
of  her  funeral  obsequies".  This  document 
was  executed  four  days  before  her  death, 
and  there  is  absolutely  no  evidence  to  show 
that  the  amount  was  entrusted  with  any 
person  to  perform  her  funeral  obsequies. 
The  case  in  Sadashiv  Bhaskar  Joshi  v. 
Dhakubai  (7)  was  relied  on,  but  the  facts 
of  that  case  are  that  the  amount  was  spent 
on  funeral  obsequies;  and  it  was  conse- 
quently held  that  the  amount  spent  was  a 
charge  upon  the  husband's  estate.  The 
conclusion  of  the  learned  Subordinate 

(7)  5  B.  450;  3  lad,  Deo.  (N,  s.j  297, 


369  KALIAN1  ANNI  ».    THIRUMALAVAPPA  MUOALUE. 

Judge  with   respect  to  these  documents  has     lant's  Vakil  was  with 
to  be  upheld. 

The- appeal  preferred  by  plaintiff  relates 
to  properties  comprised 


[92  1/0.  1926] 
respect 


n  8chs.  II,  XII 

and  XIII.  The  sale-deeds  are  Exs.  Ill,  IV 
and  IX,  and  [all  that  was  urged  was  that 
the  properties  were  sold  for  very  inade- 
quate sums.  It  was  said  that  the  plaintiff 
sold  her  share  under  Exs.  XI  and  XII  for 
Es.  5,300  and  odd,  that  Ex.  IX  was  only 
for  Rs.  4,000,  that  Exs.  XI  and  XU  had 
been  executed  10  months  prior  to  Ex.  IX 
and  that  the  sale  under  Ex.  IX  should  also 
have  been  for  at  least  Rs.  5,300.  It  was 
also  said  that  the  1st  defendant  purchased 
under  Ex.  XIII  the  properties  conveyed 
under  Exs.  IX,  XI  and  XII  for  a  sum  of 
Rs.  6,500,  and  that  this  circumstance  also 
indicated  that  the  sale  for  Rs.  4,000  under 
Ex.  IX  was  for  a  grossly  inadequate  sum. 
Beyond  the  inference  to  be  drawn  from  the 
considerations  recited  in  Exs.  XI  and  XII 
no  evidence  worth  the  name  has  been  let 
in  to  prove  that  the  sale  under  Ex.  IX  was 
for  a  grossly  inadequate  sum.  Exhibit  Q 
was  relied  upon,  but  the  person  who  pre- 
pared the  statement  was  not  examined, 
and  the  value  of  the  property  as  given  in 
it  is,  therefore,  of  no  evidentiary  value. 
The  finding  of  the  learned  Subordinate 
Judge  with  respect  to  these  schedules  has, 
therefore,  to  be  upheld. 

Another  objection  urged  by  the  Vakil 
for  the  appellant  with  respect  to  aliena- 
tions evidenced  by  Exs,  III,  IV  and  IX 
was,  that  the  registration  of  these  docu- 
ments was  invalid.  It  was  stated  that 
certain  items  of  property  not  intended  to 
be  conveyed,  were  conveyed  under  them, 
that  this  was  done  with  a  view  to  give 
jurisdiction  to  the  Sub-Registrar  within 
whose  jurisdiction  the  vendors  resided,  and 
that  as  a  fraud  on  the  Registration  Law  was 
practised,  the  registration  was  invalid.  It 
was  conceded  that  the  items  said  to  have 
been  included  with  this  view  belonged  to 
the  vendors  and  neither  the  writer  nor  the 
attestors  to  these  documents  have  been 
examined  for  the  purpose  of  proving  that 
the  items  -were  never  intended  to  be  con- 
veyed. It  was  said  that  these  items  did 
not  pass  iftto  the  possession  of  the  vendees 
but  this  circumstance  even  if  true  cannot 
be  taken  to  imply  that  they  were  included 
in  the  documents  for  the  purpose  of  prac- 
tising fraud  upon  the  Registration  Law 
This  contention  oannot,  therefore,  prevail* 
objection  urged  by  the  appel- 


to  the  in- 
terest allowed  on  mesne  profits.  The  lower 
Court  allowed  interest  at  six  per  cent,  and 
it  was  contended  that  interest  should  have 
been  allowed  at  the  rate  of  12  per  cent.  I 
am  not  prepared  to  interfere  with  the  dis- 
cretion exercised  by  the  lower  Court. 

The  last  ground  of  appeal  relates  to 
mesne  profits  subsequent  to  suit  and  up  to 
the  date  of  the  delivery  of  possession.  It 
was  mentioned  by  the  1st  respondent's 
Vakil  that  a  suit  had  been  filed  by  the 
plaintiff  for  the  recovery  of  mesne  profits 
for  a  period  of  three  years  subsequent  to 
suit;  but  the  plaintiffs  Vakil  stated  that 
he  was  prepared  to  withdraw  that  suit 
which  was  still  pending  and  which  was 
stayed  pending  this  appeal,  in  case  this 
Court  gave  a  direction  for  the  recovery  of 
mesne  profits  due  from  the  date  of  plaint 
to  the  date  of  the  delivery  of  possession. 
The  Vakil  for  the  1st  respondent  stated 
that  he  had  no  objection  to  this  course. 

The  decree  of  the  lower  Court  will, 
therefore,  be  modified  by  adding  a  direc- 
tion to  the  effect  that  the  plaintiff  will  be 
entitled  to  mesne  profits  from  the  date  of 
plaint  to  the  date  of  the  delivery  of  pos- 
session, the  amount  to  be  ascertained  by  the 
lower  Court. 

The  printing  in  this  case  appears  to  me 
to  have  been  recklessly  done.  There  are 
two  paper-books  containing  624  pages. 
Schedules  have  been  printed  which  have 
no  bearing  with  the  matters  in  issue  be- 
tween the  parties  and  our  attention  was  not 
drawn  to  more  than  30  Exhibits.  Except- 
ing the  evidence  of  plaintiff,  the  remain- 
ing oral  evidence  was  not  referred  to.  It 
appears  to  me  that  the  costs  of  printing 
the  two  paper-books  containing  oral  and 
documentary  evidence  in  the  case  should 
not  be  allowed  in  taxation. 

In  the  result  the  decree  of  the  lower 
Court  will  be  modified  as  indicated  above. 
Appellant  will  pay  the  costs  of  the  con- 
testing respondents,  the  costs  not  to  in- 
clude the  costs  of  printing  the  oral  and 
documentary  evidence  in  the  case. 

The  memorandum  of  objections  filed  by 
respondents  Nos.  1  and  7  will  stand  dis- 
missed with  costs,  costs  not  to  include  cost 
of  printing  paper- books. 

Spencer,  J,— 1  agree. 

V.  N.  V. 

N.  H.  Decree  modified. 


[92  L  0, 1926  j       JOTSTNG  HARTSING  ADVANI  v  SECRETARY  OP  STATE  FOE  INBIA. 


BIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

FIRST  OIVIL  APPEAL  No.  17  OF  1925. 

September  16,  1925. 

Present— Mr.  Kennedy,  J,  C.,  and 

Mr.  Rupchand  Bilaram,  A.  J'.  C. 

JOT8ING  HARISING  ADVANI— 

PLAINTIFF— APPELLANT 

versus 

THE  SECRETARY  OF  STATE  FOR  INDIA 
— DEFENDANT — RESPONDENT. 

Cantonments  Act  (XV  of  WW),  s  1")  (7)— Water 
charges,  whether  tax —Modification  of  charges— -Prt- 
vious  sanction  of  Governor-Genera?,  whether  necessary 
— Cantonment  Committee,  whether  can  sell  water — Can- 
tonment Code  of  W12,  r.  Iff—Bombay  District  Muni- 
cipal Act  (III  of  1901),  s  71, 

The  water  charges  sanctioned  by  the  Governor- 
(Jeneral  in  Council  as  required  by  s.  15  (1)  of  thft 
Cantonments  Act  and  levied  by  a  Cantonment  Com- 
mittee under  Notifications  ifisuod  under  tho  Raid 
section  are  in  tho  nature  of  a  tax  and  cannot,  lie  in- 
creased or  varied  by  the  Committee  without  the  previ 
ous  like  sanction  of  the  Governor-General  in  Council 
[p  362,  col.  1  j 

Badcock  v.  Hunt,  (1889)  22  Q.B  I).  145,  58  L  J.  g  B. 
134;  60  L.  T  314;  37  W  R.  205,  53  J  P.  240  and 
Committee  of  Management  of  Hyderabad  v  Itamchand 
Gownkiramt&1  Ind.  Cas  258;  16  S.  L  R.  98  at  p  101, 
(1023)  AIR  (S.)  1,  explained  and  distinguished 

Rule  157  of  the  Cantonment  Code  of  1912  does  not 
empower  a,  Cantonment  Committee  to  limit  the 
quantity  of  water  supplied  in  proportion  to  the 
buying  value  of  the  tax  levied  This  rule  is  not 
intended  by  implication  to  vest  a  non-commercial 
body  like  a  Cantonment  Committee  with  the  right  to 
vend  water  as  a  commodity  [p  363,  col.  2  ] 

Appeal  against  the  judgment  and  decree 
of  the  District  Judge,  Hyderabad  8ind, 
dated  the  2nd  December  1924. 

Mr.  Pahlajsing  R.  Advani,  for  the  Appel- 
lant. 

Captain  C.  C,  Lewis,  for  the   Respondent. 

JUDGMENT.— This  appeal  arises  out 
of  a  suit  instituted  by  the  plaintiff-appellant 
for  a  declaration  that  certain  water  charges 
levied  from  him  by  the  Cantonment  Com- 
mittee of  Hyderabad  were  in  excess  of  the 
water  rates  sanctioned  by  Government  for 
refund  of  the  excess  amount  levied  and  fox 
Rs.  200  as  damages  sustained  by  him  dur- 
ing the  period  his  water  supply  was  cut  off 
for  refusal  to  pay  such  charges. 

The  plaintiff-appellant  has  died  since  the 
filing  of  this  appeal  and  his  representative 
has  been  brought  on  the  record. 

The  facts  leading  up  to  this  litigation  are 
not  in  dispute. 

The  .Cantonment  Committee  received  its 
supply  of  water  from  the  Hyderabad  Muni- 
cipality on  payment  of  certain  charges 
spttloJ  by  the  two  bodies  on  some  date 
prior  to  1913.  The  Cantonment  Committee 


recouped  itself  for  the  amount  paid  to  the 
Municipality  by  recovering  certain  water 
rates  from  the  occupants  of  property  within 
the  Cantonment  limits,  which  were  sanction- 
ed by  Government  in  1913.  Government 
Notification  No.  5099  of  1923,  empowered 
the  Committee  inter  alia  to  levy  for  use  of 
water  for  domestic  purposes  a  flat  rate  of 
10  per  cent,  on  the  rental  of  all  premises 
within  their  limits  and  provided  for  the 
mode  of  fixing  such  rentals.  Government 
Notification  No.  5594  empowered  the  Com- 
mittee to  charge  certain  water  rates  for 
buildings  under  construction  with  a  mini- 
mum flat  rate  of  Rs.  4  per  month  where  no 
water  main  was  on  the  premises,  and  a 
graduated  but  uniform  scale  of  rates  where 
a  water  main  had  been  laid,  the  scale  of 
rates  to  be  levied  depending  on  the  dimen- 
sions of  the  water  main. 

In  1923  the  Hyderabad  Municipality  re- 
vised its  terms  for  the  supply  of  water  and 
it  was  agreed  between  the  two  bodies  that 
from  1st  April  1923  the  Hyderabad  Muni- 
cipality was  to  receive  payment  at  the  rate 
of  Re.  0-10-6  per  1000  gallons  of  water  sup- 
plied within  the  Cantonment  limits.  In  antici- 
pation of  the  sanction  of  Government  and  the 
issue  of  fresh  Notification  enabling  the  Com- 
mittee to  charge  higher  rates,  tie  Com- 
mittee fixed  metres  to  the  water  mains  of 
some  of  the  residential  buildings,  where 
they  thought  that  the  flat  rate  of  10  per 
cent,  on  the  rental  was  not  a  sufficient  re- 
compense for  the  supply  of  water  with  the 
object  for  charging  such  occupants  the 
actual  cost  of  water  consumed  calculated  at 
the  rate  of  Re.  0-10-6  per  1000  gallons 
subject,  however,  to  the  payment  of  the 
minimum  water  rate  on  the  10  per  cent, 
rental  basis. 

The  plaintiff-appellant  was  the  owner  of 
one  of  such  Bungalows.  He  went  to  live  in 
it  in  the  beginning  of  April  1923  and  im- 
mediately thereafter  he  commenced  to  rear 
a  gardfen  in  his  compound  and  also  to  carry 
out  extensive  repairs,  alterations  and 
additions.  He  was  a  retired  Executive 
Engineer  and  required  greater  comforts 
than  those  afforded  by  the  Bungalow  as 
already  constructed.  For  April  and  May 
19^3  the  Committee  sent  him  a  bijl  for  Rs.  6 
per  month  for  use  of  water  for  domestic 
purposes  and  for  Rs.  8  per  month  for  con* 
structional  purposes  in  terms  of  the  two 
Notifications.  He  demurred  to  the  payment 
of  a  double  water  rate  and  contended  that 
Government  Notification  No,  5594  of  1913 


382 


JOTStNG  HiRlSINQ  ADVANT  V.  SEORBTART  OP  STATE  POU  INDIA.      [92  I.  0.  1923  j 


referred  to  new  buildings  only.  The  Com- 
mittee  thereupon  decided  to  charge  him  for 
the  quantity  registered  by  tne  metre  attach- 
ed to  his  house  at  their  actual  cost  of 
Re.  0-10-6  for  1000-  gallons  which  was  far  in 
excess  of  Rs.  14  per  month.  The  bill  for 
one  of  the  months  alone  was  Rs  43  The 
plaintiff  refused  to  pay  the  amended  bills 
with  the  result  that  the  Committee  cut  off 
hia  water  connection  which  was  restored  to 
him  on  his  paying  under  protest  his  overdue 
bills.  After  paying  such  bills  he  instituted 
the  present  suit. 

The  points  urged  before  us  are  .the  same 
taken  in  the  lower  Court. 

The  main  point  at  issue  between  the 
parties  is  as  to  the  right  of  the  Committee 
to  claim  for  supply  of  water  in  excess  of 
rates  sanctioned  by  Government  and  it  de- 
pends on  the  question  whether  such  rates 
are  levied  as  a  tax  and  cannot  be  increas- 
ed or  varied  by  the  Committee  without  the 
like  sanction  of  Government, 

A  berusal  of  the  two  Notifications  Nos. 
5099/l&and  5594/13  shows  without  a  shadow 
of  doubt  that  the  water  rates  sanctioned 
thereunder  were  intended  to  be  enforced  as 
taxes.  Both  Notifications  purport  to  have 
been  issued  under  s.  15  (1)  of  tbe  Canton- 
ments Act  1910  which  reads  as  follows:— 

"With  the  previous  sanction  of  the  Gov- 
ernor-General in  Council,  the  Local  Govern- 
ment may,  by  Notification  in  the  Official 
Gazette,— 

(a)  impose  in  any  Cantonment  which  is 
not  included  in  a  Municipality  any  tax 
which,  under  any  enactment  in  force  at  the 
date  of  the  Notification,  can  be  imposed  in 
any  Municipality  within  the  territories  ad- 
ministered by  such  Government;  and 

(6)  abolish  or  modify  any  tax  so  impos- 
ed.1' 

Government  Notification  No.  5099  of  1913 
provides  for  a  flat  rate  to  be  imposed  in 
the  case  of  residential  buildings  on  their 
rental  basis  irrespective  of  the  quantity  of 
water  consumed  by  the  registered  occupant 
or  his  tenant. 

Government  Notification  No.  5594  of  1913 
again  provides  for  a  flat  minimum  rate  of 
Rs  4  per  month  for  each  building  under 
construction  irrespective  of  the  quantity  of 
water  used  in  any  particular  month.  Neither 
of  the  two  Notifications  afford  an  option  to 
the  registered  occupant  to  avoid  payment 
of  the  water  rate  on  the  ground  that  he 
does  not  intend  to  use  water  supplied  by 
the  Committee,  An  occupant  who  has  a 


well  in  his  premises  or  is  prepared  to  dig 
one  or  who  receives  his  water  supply  from 
a  channel  adjoining  and  outside  the  Canton- 
ment limits  is  equally  liable  to  pay  the 
flat  rates  fixed  by  the  two  Notifications. 

It  ia  likewise  not  open  to  a  registered 
occupant  to  pay  less  than  the  sanctioned 
wat§r  rate  on  the  ground  that  he  is  consum- 
ing less  water  than  his  neighbour  whose 
rental  is  less  than  his. 

The  use  of  the  expression  "water  rate1'  in 
the  two  Notifications  does  not  indicate  that 
such  water  rate  is  not  a  tax.  The  expression 
"tax"  is  more  appropriately  used  in  respect 
of  an  imperial  tax  imposed  on  persons  gene- 
rally without  reference  to  locality  as'opposed 
to  a  local,  or  Municipal  tax  levied  for  the 
use  of  a  local  authority  on  persons  or  pro* 
perty  within  the  local  limits  of  such  author- 
ity and  often  referred  to  as  a  rate. 

The  learned  District  Judge  has  relied  on 
certain  observations  of  Fry,  L  J.,  in>Badcock 
v.  Hunt  (1)  in  support  of  his  finding  that 
the  water  rates  referred  to  in  the  two  Notifi- 
cations were  not  taxes  but  mere  charges 
for  the  supply  of  water,  and  as  such  liable 
to  be  varied  without  sanction  of  Govern- 
ment. 

Badcock's  case  (1)  is  distinguishable  and 
the  observations  of  Fry,  L.  J.,  so  far  as 
they  apply  to  the  facts  of  the  present  case 
on  the  contrary  support  the  plaintiff's  case. 

In  that  case  the  Court  of  Appeal  was 
called  upon  t,o  interpret  a  covenant  in  a 
lease  of  Warehouse  in  the  City  of  London 
by  which  the  lessor  had  covenanted  to  pay 
"all  rates,  taxes  and  impositions  whatsoever 
whether  Parliamentary  parochial  or  imposed 
by  the  Corporation  of  the  City  of  London 
or  otherwise,  however,  which  were  or  there- 
after might  be  rated  or  assessed  on  the 
said  premises".  And  the  lessee  claimed  to 
recover  from  the  lessor  under  -the  terms  of 
that  covenant  certain  charges  paid  by  them 
to  the  New  River  Company  of  London  for 
supply  of  water  to  the  lessees  for  domestic 
purposes.  These  charges  were  referred  to 
in  the  incorporating  Statute  of  the  River 
Company  as  water  rates,  and  it  was  not 
seriously  contended  that  such  charges  or 
rates  were  not  the  rates  specifically  referred 
to  in  the  covenant,  and  were  payable  only 
in  the  event  of  the  lessee  voluntarily  receiv- 
ing the  supply  of  water.  The  only  material 
question  for  decision  was  whether  such 
charges  were  ''imposed"  within  the 


(1)  (18R9)  22  Q.  B.  D,  145;  58  L.  J.  Q.  B.  131;  60  I* 
T.314;  37  W.R.  205;  53  J.  P.  340. 


[92 1,  0.  1926J       JOTSTNO  HARISINO  ADVANI  v,  SECRETARY  OP  STATE  FOR  INDIA. 


ing  of  the  covenant  and  it  was  held  that  as 
such  charges  were  payable  only  in  the 
event  of  the  lessee  voluntarily  desiring  to 
have  the  supply  of  water,  they  were  not 
imposed  on  him.  The  following  observa- 
tions of  Fry,  L.  J.  at  page  149*  are  pertinent 
to  the  point  at  issue: 

"la  my  judgment  it  is  not  imposed  at 
all  within  the  meaning  of  the  covenant,  it 
becomes  payable  by  the  voluntary  action  of 
the  person  who  chooses  to  take  the  water 
and  thereby  incurs  the  legal  liability  to  pay 
for  it;  it  is  not,  like  the  rates  and  charges 
previously  mentioned  in  the  covenant,  an 
imposition  by  some  superior  authority  which 
a  man  becomes  liable  to  pay  whether  he 
will  or  not." 

These  observations  support  the  case  of 
the  plaintiff  and  not  that  of  the  defendant. 
Here  the  sanctioned  water  rates  are  in  no 
way  voluntary  depending  on  the  plaintiff's 
desire  to  have  the  water  supply.  The  dis- 
tinction between  a  voluntary  and  a  non- 
voluntary  liability  for  water  rate  payable  to 
a  District  Municipal  Corporation  under 
s.  71  of  the  Bombay  District  Municipal  Act 
III  of  1901  and  that  payable  to  the  Munici- 
pal Corporation  of  Bombay  under  s.  141  of 
the  Bombay  City  Municipal  Act  111  of  1888 
was  pointed  oat  by  Fawcett,  J.  C.  in  The  Com- 
mittee of  Management  of  Hyderabad  v.  Ram- 
chand  Zownkiram  (2).  The  water  rate  referred 
to  in  the  two  Notifications  is  not  only  ex- 
pressed to  be  but  is  pre-eminently  a  tax 
imposed  by  the  Crown  and  could  not  be 
modified  without  the  sanction  of  Govern- 
ment. 

It  has  been  urged  by  the  learned  Solicitor 
for  the  Crown  that  though  the  water  rate 
prescribed  by  the  two  Notifications  be  held 
to  be  a  tax,  r.  157  in  Oh.  IX  of  the  Canton- 
ment Code  of  1912  empowers  the  Canton- 
ment Committee  to  control  the  supply  of 
water  and  that  it  is,  therefore,  open  to  the 
Oo&mittee  to  prescribe  the  quantity  of 
water  an  occupant  may  comsume  free  of 
charges  in  lieu  of  the  water  rate  or  tax  im- 
posed on  him  and  to  supply  to  him  such  addi- 
tional quantity  of  water  as  he  may  require 
ox*  such  reasonable  terms  as  the  Committee 
may  prescribe.  And  it  is  urged  that  in  the 
present  case  the  Committee  had  prescribed 
the  most  reasonable  rate  of  charging  the 
plaintiff  the  actual  cost  to  the  Committee  of 
such  supply  of  water.  At  first  sight  this 

(2)  87Ind.Cas.  258;  16  8.  L.  R,  98  at  j%  101,  (1923) 

A.  IB  (8..)1. „__„ 

i  11689;  X2  <4, 


363 

argument  may  appear  to  be  sound  and  sup- 
ported by  equitable  considerations.  But 
the  obvious  answer  to  it  is  that  the  Canton- 
ment Committee  is  a  creature  of  the  Statute 
and  can  only  exercise  such  powers  as  are 
expressly  or  impliedly  delegated  to  it  and 
any  act  of  the  Committee  outside  the  scope 
of  such  powers  is  ultra  vires.  No  express 
provisions  similar  to  those  of  s.  71  of  the 
Bombay  District  Municipal  Act  III  of  1901 
empowering  the  Cantonment  Committee  to 
supply  water  to  occupants  on  its  own  terms 
find  place  either  in  the  Cantonments  Act  of 
1910  or  the  Cantonment  Code  of  1912. 
Chapter  IX  of  the  Cantonment  Code  of  1912 
is  intended  to  secure  a  pure  and  uncon- 
taminated  supply  of  water  and  to  prevent 
its  waste.  It  provides  adequate  remedies 
by  way  of  punishment  for  the  enforcement 
of  its  rules.  This  Chapter  is,  however,  not 
intended  to  empower  the  Cantonment 
Committee  to  deal  in  water  or  to  fix 
and  charge  reasonable  rates  for  its  supply. 
And  it  is  difficult  for  us  to  read  into  r.  157 
a  provision  enabling  the  Committee  to 
limit  the  quantity  of  water  supplied  in  pro- 
portion to  the  buying  value  of  the  tax 
levied  or  to  hold  that  this  rule  was  intend- 
ed by  implication  to  vest  in  a  non-commer- 
cial body  like  the  Cantonment  Committee 
the  right  to  vend  water  as  a  commodity. 
The  two  Notifications  do  not  purport  to 
entail  any  limitations  on  the  quantity  of 
water  to  be  supplied  and,  however,  equit- 
able the  action  of  the  Committee  may  be, 
it  cannot  be  upheld  as  ultra  vires. 

We  think  the  learned  District  Judge 
was  in  error  in  refusing  to  grant  the  decla- 
ration asked  for. 

With  regard  to  the  liability  of  the  plaint- 
iff to  pay  the  water  rate  both  for  domestic 
and  for  constructional  purposes,  we  think  on 
the  facts  of  this  case,  there  can  be  no  doubt 
that  the  plaintiff  was  liable.  He  was  using 
water  for  two  different  purposes.  He  was 
occupying  the  Bungalow  and  using  water 
for  domestic  purposes.  He  was  also  carry- 
ing out  extensive  alterations  which  were 
not  confined  to  mere  white- washing  of  the 
Bungalow  or  to  ordinary  and  usual  repairs 
which  a  landlord  is  required  to  carry  out  to 
maintain  the  Bungalow  in  proper  condition, 
but  consisted  of  building  new  walls  and 
additional  rooms.  We  hold  thai,  for  the  period 
in  suit  the  plaintiff  was  liable  to  pa>  Ik.  6 
per  month  as  the  water  rate  for  domestic 
purposes  and  Rs.  8  per  month  as  the  watejr 
rate  for  his  building  being  under  construe* 


tion  and  thafc  his  refusal  to  pay  atrthat  rate 
was  wrongful. 

.  The  plaintiff  has  failed  to  prove  that  he 
suffered  Rs.  200  as  damages  or  that  he 
suffered  any  damage  at  all.  His  case,  there- 
fore, fails  on  this  count  also. 

,  We  accordingly  vary  the  decree  of  the 
lower  Court  by  grantingrelief  for  declaration 
that  the  act  of  the  Cantonment  Committee 
in  enforcing  payment  of  water  charges  in 
excess  of  the  sanctioned  rates  was  ultra 
vires,  and  by  onlt  lii.^'.hv  the  defendant  do 
refund  to  tHe  legal  representative  of  the 
plaintiff  the  efcCess  recovered  over  and  above 
Rs.  14  per  month  for  the  period  in  suit  In 
the  Circumstances  of  the  present  case  where 
the  plaintiff  has  succeeded  only  in  part  we 
order  that  each  party  should  bear  his  own 
costs  throughout, 

p.  fc.  A. 

N.  H.  Appeal  allowed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  480  OF  1924. 

November  18,  1925, 

Present:— Mr.  Findlay,  Officiating  J.  C. 
NILKANTH— PLAINTIFF— APPJBLLAN  r 

versus 
GA'JANAN — DEFENDANT — RESPONDENT. 

Hindu  Law -Joint  family— -Partition  suit— Mesne 
p7*o/tt#,  when  can  be  claimed. 

There  is  no  absolute  rule  that  in  a  partition  suit, 
a  claim, for  mesne  profits  is  necessarily  unsustainable. 
Where  the  plaintiff  proves  that  he  was  excluded  from 
the  property  lie  is  entitled  to  claim  mesne  profits  for 
the  period1  during  which  he  has  been  excluded,  [p.  365, 
col.  2,] 

Balakrishna  Aiyarv.  Muthusawmi  Aiyar,  3  Ind. 
Ca*.  878;  32  M.  271;  5  M,  L.  T,  145;  19  M.  L.  J.  70, 
distinguished. 

Krishna  v.  Siitbanna,  7  M.  5$4;  8  lud.  Jur.  50i;  2 
Ind.'Dec.  (NT.  s.)  975,  followed. 

Bhivravv,  Sitaram,  19  B.  532,  10  Tnd,  Dec.  (N.  s.) 
.V>,~;  -I".''  ••»'."  '  '  21  Tnd  Cas.  590,  9  N.  L.  R. 
1 1  )  r:s'i  /.'  :•••',••.•'  •  "•  •  v.  Goturam  ttadhakisan, 
51  Iiid.  Oas.  115;  44  B.  171);  21  Bom.  L.  R.  1170,  refer- 
red to. 

A  Hi-!!1:  ,i«ainst  a  decree  of  the  Addi- 
tional !).-;:•>:  Judge,  Nagpur,  dated  the 
27th  August  1924,  in  Civil  Appeal  No,  27  of 
1924. 

Mr.  M.  V.  vU\/'zn/iur,  for  the  Appellant. 

Mr.  M.  R.  Bobde,  for  the  Respondent 

JUDGMENT.— The  plaintiff  Nilkanth 
is  the  nephew  of  the  defendant  Gajanan, 


t>. 

The  suit  was  brought  iri  the  Oouai  of  t'tfe 
First  Subordinate  Judge,  2nd  Cla^/Xagpur, 
for  partition  of  two  houses  '  "  '  in 
Mouza  Nagardhan  of  Ramtek  •'  •  •  ,yell 
as  of  moveables  and  also  for  Rs.  900  being 
the  plaintiff's  alleged  share  of  profits  of  an 
occupancy  field  in  Mouza  Nandapuri.  The 
pleadings  of  the  parties  have  been  fully 
stated  in  both  the  judgments  of  the  lower 
Courts  and  need  not  be  repeated  here.  On 
the  issues  which  arise  on  these  pleadings 
the  Subordinate  Judge  gave  the  following 
findings: — 

(a)  that  the  plaintiff  and  defendant  were 
joint  on  the  date  of  suit; 

(6)  that  in  revenue  proceedings  the  de- 
fendant had  admitted  the  fact  of  jointness 
with  the  plaintiff; 

(c)  that  one  of  the  houses    in  the  plaint, 
viz,,  that  facing  wrest,  was  the  self-acquisi- 
tion of  the  defendant  and  was  not  liable  to 
be  partitioned , 

(d)  that  the  claim  to  partition  of  the  house 
was  not  barred   by  ss.  35  and   9\  of  the 
Tenancy  Act,  1898; 

(e)  that  there  were  certain  family  debts 
binding  on  the  plaintiff,   who  was  then   a 
minor; 

(f)  that  plaintiff  was  entitled  to   the  half 
share  of  the  profits  of  the  field  and  could 
claim  them  for  18  years  from  1904  to  1922; 

(gf)  that  there  was  no  ancestral  moveable 
property; 

(K)  that  defendant  and  plaintiffs  father 
had  not  separated  in  1901; 

(i)  that  plaintiff  was  liable  for  certain 
debts  paid  by  the  defendant. 

On  these  findings  a  preliminary  decree 
was  passed  for  partition  of  the  one  house 
held  as  joint  properly  and  the  defendant 
was  ordered  to  pay  Rs.  537-8  0  as  plaintiff's 
share  of  profits  of  the  field  described  above. 

The  defendant  appealed  to  the  Court  of 
the  Additional  District  Judge,  Nagpur.  He 
only  succeeded  as  regards  part  of  the  decree 
which  ordered  the  payment  of  Rs.  537-8-0 
on  account  of  profits  of  the  field.  The 
plaintiff  has  now  come  up  on  second  appeal 
as  regards  dismissal  of  this  part  of  the  relief 
claimed  by  him. 

The  Additional  District  Judge  has  dealt 
with  the  matter  of  profits  in  paras.  6  and 
7  of  his  judgment.  '  He  has  held  that 
there  was  no  exclusion  of  the  plaintiff  until 
his  title  was  denied  in  the  year  1921, 
It  seems  to  me  that  in  para.  2  of  the 
plaint  there  was  a  clear ''allegation  which 
practically  amounted  to  cue  of  exclu$iont 


[92 1.  0. 1926] 


NILKANTH  V.  OAJAMAK. 


TBat  allegation  was  to  the  effect  that  one 
year  after  the  death  of  Jagoba,  father  of 
the  plaintiff,  the  defendant  made  it  impos- 
sible for  the  plaintiff  and  his  mother  to  live 
with  him  and  he  was  forced  to  remove  to 
£is  maternal  .  V  '  •  In  para.  4  of 
the  plaint  it  was  alleged  that  when  after 
the  plaintiff  had  attained  majority  he  in 
}92l  claimed  the  profits  for  18  years  during 
which  he  had  been  excluded  from  the  en- 
joyment of  the  property,  the  defendant  had 
refused  to  pay  him  any  such  profits.  I 
cannot,  therefore,  agree  with  the  following 
remarks  made  in  para*  6  of  the  lower 
Appellate  Court's  judgment:— - 

"It  is  not  alleged  in  the  plaint  that  there 
was  a  dispossession  or  that  there  was  any 
occasion  to  prohibit  the  plaintiff  from  exer- 
cising possessory  rights  or  that  the  title 
was  denied  till  the  year  1921." 

It  is  true  that  the  plaint  as  the  Judge  of 
the  lower  Appellate  Court  himself  remarks 
was  inartistically  drafted,  but  if  it  be 
read  as  a  whole  1  think  the  only  reasonable 
construction  to  be  put  on  it  was  that 
there  was  a  definite  allegation  of  ex- 
clusion, If  any  doubt  remained  on  this 
point  it  seems  to  me  to  be  removed  by  the 
allegations  of  the  defendant  himself  in  his 
written  statement  dated  the  28th  February 
1923.  Paragraph  5  thereof  if  it  means  any- 
thing at  all  clearly  implies  that  from  1901 
the  defendant  remained  in  sole  possession 
of  the  property.  This  allegation  the  de- 
fendant has,  as  we  have  seen,  failed  to 
establish,  but  it  is  nonetheless  of  great 
value  as  indicating  his  possession  with 
regard  to  the  field  in  question.  In  para. 
6  of  the  same  written  statement,  there 
was  a  clear  and  unequivocal  denial  that 
the  plaintiff  had  ever  been  the  tenant  of 
the  field  in  question,  In  para.  11  of  the 
same,  it  was  clearly  alleged  that  the  plaint- 
iff had  been  admittedly  excluded  from  the 
plaint  property  for  more  than  12  years 
before  the  date  of  the  suit  and,  as  if  to  make 
certainty  sure  para,  12  went  on  to  offer  a 
plea  of  abandonment  of  the  plaint  property, 
while  in  para.  19  a  definite  affirmation 
was  made  that  the  defendant  was  the  sole 
owner  of  the  field  fii  question.  If  these 
Allegations  mean  anything  at  all  they  imply 
that  the  defendant  asserted  his  exclusive 
right  to  the  tenancy  of  the  field,  that  he 
4$nied  joihtnees  of  the  plaintiff  therein, 
and  further  admitted  that  he  had  excluded 
lie  plaintiff.  The  Judge  of  the  lower  Appel- 
late Court  setos  to  have  entirely  overlook- 


£65 

ed  this  aspect  of  the  case.  It  is  perfectly 
true  that  the  decision  in  Balakrishna  Aiyar 
x.'Muthusawmi  Aiyar  (l)laid  down  that  a 
-co-parcener,- who  sues  for  possession,  and 
'who  has  not  been  excluded  from  the  family^ 
is  not,  unless  he  establishes  fraud  or  mis- 
appropriation, entitled  to  call  upon  the 
manager  to  account  for  dealing  with  the 
family  property.  But  in  relying  on  this 
case  the  learned  Additional  District  Judge 
has  entirely  overlooked  the  words  "who  has 
not  been  excluded  from  the  family".  The 
ratio  decidendi  of  the  said  decision  is,  there- 
fore, quite  inapplicable  in  the  present  case. 

The  learned  Additional  District  Judge 
remarks  that  the  fact  that  the  respondent 
may  have  obtained  no  share  of  the  income 
since  he  ceased  to  live  with  the  appellant 
does  not  affect  the  principle  which  is  laid 
down  in  Balakrishna  Aiyer  v.  Muthuswami 
Aiyar  (1)  and  other  similar  cases.  The  real 
point,  however,  in  the  present  ease  is  that 
the  defendant's  attitude  in  this  suit  has 
been  that  from  1904  he  was  exclusive  owner 
of  the  property,  and  that  plaintiff  had  no 
claims  whatever  to  the  share  of  the  profits. 
In  these  circumstances  1  am  wholly  unable 
to  see  how,  having  excluded  plaintiff,  as  he 
has,  and  having,  moreover,  admitted. the  ex- 
clusion himself,  he  can  be  brought  within 
the  purview  of  Balakrishna  Aiyar  v.  Muthu- 
swami Aiyar  (1).  On  the  contrary  itse^ms  to 
me  that  the  principle  enunciated  in  Krishna 
v.  Subbanna  (2)  is  fully  applicable  in  the 
circumstances  of  the  present  case.  That  case 
is  to  all  intents  and  purposes  on  all  fours 
with  the  present  one,  cf..  Bhivrav  v.  Sitaram 
(3).  In  Amritraov.  Govind  (4)  Mittra,  A. 
J.  0.  remarked  at  page  148*  as  follows:— 

"No  doubt  in  cases  of  exclusion  from 
joint  property,  accounts  may  be  taken  of 
past  profits,  but  this,  I  think,  can  only  be 
taken  in  a  suit  for  general  partition/' 

There  is  thus,  in  my  opinion,  no  absolute 
rule  that  in  a  partition  suit  each  and  every 
claim  for  mesne  profits  is  necessarily  un- 
sustainable. In  the  case  of  the  present 
plaintiff,  who  was  excluded  as  a  njinor  from 
the  property,  the  claim,  therefore,  in  my 
opinion,  clearly  lies. 

The    decision    of  Macleod,    0.   JM    and 

(1)  3  Ind,  Gas  878;  32  M.  271;  5  M.  L.  T.  U5;  19  M, 
L.  J,  70, 

(2)  7M.  564;    8  Ind.   Jur.    504;  2  Ind.    Dec.  (N.  s) 

(3)  19  13.  532;  10  Ind.  Dec,  (N.  s.)  355, 

(4)  21  Ind.  Cas.  590;  9  K,  L.  R.  145.  

*J>age  o*  9  N,  L,  R— [Ed.] 


3G6 


PALANTAPPA  CHBTTIAR  V.  KAJARAJB8WARA  SBTHUPATIL  [92  I.  0.  1926  J 


Beaton,  J.,  in  Ramnath  Chhoturam  v. 
Goturam  Radhakuan  (5)  has  been  quoted 
by  the  respondent,  but  I  cannot  see  that  it 
is  applicable  to  the  circumstances  of  the 
present  case.  For  these  reasons,  therefore, 
I  am  of  opinion  that  the  lower  Appellate 
Court  was  incorrect  in  dealing  with  the 
profits  in  question  in  the  way  it  did.  The 
judgment  and  decree  appealed  against  are 
reversed  and  instead  the  decree  of  the  first 
Court  is  restored.  The  defendant-respond- 
ent will  bear  the  present  appellant's  costs 
both  in  this  Court  and  in  the  lower  Appel- 
late Court.  The  Judge  of  the  first  Court 
when  he  passes  the  final  decree  will  allo- 
cate the  costs  in  it  awrrils!.!;  to  the  resiilt. 
z.  K<  Decree  reversed. 

(5)  54  Ind.   Cas,    115;  41    B.    179;    21  Bom.  L.  R. 
1179. 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  No.  131  OF  1924. 

August  28,  1925. 

Present ;— Sir  Victor  Murray  Coutts 

Trotter,  KT.»  Chief  Justice,  and 

Mr,  Justice  Vishwanatha  Sastri. 

PALANIAPPA  CHETTIAR— SND  LEGAL 

BBPRESBNTATIVB  OP  THE  PLAINTIFF-— 

APPELLANT 

versus 
B.  RAJARAJESWARA  8ETHUPATHI 

alias  MUTHURAMALINGA  SETHU- 
PATHI  AVERGAL,  RAJAH  OF  RAMNAD 

AND  OTHERS — DEFENDANTS  NOS    1  TO  3  AND 

LEGAL  REPRESENTATIVES  OF  PLAINTIFFS  Nos.  1 
AND  3— RESPONDENTS. 

Malicious  prosecution^  suit  for  damages  for — Death 
of  plaintiff —Legal  representative,  whether  can  con' 
tinue  suit. 

A  suit  for  damages  for  malicious  prosecution  cannot, 
after  the  death  of  the  plaintiff,  be  permitted  to  be 
carried  on  by  his  executor  or  legal  representative. 

Appeal  against  a  decree  of  the  Court  of 
the  Subordinate  Judge,  Madura,  in  Origin- 
al Suit  No.  20  of  1923. 

Mr.  V.  Rajagopala  Iyer,  for  the  Appellant. 

Messrs  C.  V.  Ananthakrishna  Iyer  and 
S.  Sundararaja  lyengar,  for  the  Respond- 
ents. 

JUDGMENT.— This  is  a  point  of  some 
little  interest.  A  man  called  Subramanya 
Chetti  started  a  suit  for  damages  for  mali- 
cious prosecution  apd  ji*  his  plaint,  he  claim** 


ed  a  sum  of  money  by  way  of  general  dam- 
ages and  he  also  claimed  special  damages, 
under  two  heads.  The  first  was  Vakil's  fees 
and  the  second  was  travelling  and  other 
incidental  expenses  for  securing  the  attend- 
ances of  witnesses  for  the  purpose  of  defend- 
ing the  prosecution  which  was  launched 
against  him,  We  will  take  it  that  that 
prosecution  failed  and  had  this  unfortunate 
man  lived,  he  would  have  got  substantial 
damages  against  the  defendant  which  would 
have  included  the  special  damages  alleged 
to  have  been  incurred  by  him,  As  a 
matter  of  fact,  he  died  while  the  suit  was 
pending,  and  when  the  suit  actually  came 
on  for  trial  before  the  learned  Subordinate 
Judge,  it  was  proposed  to  continue  the 
action  with  his  executor  or  legal  represent- 
ative substituted  as  the  plaintiff,  The 
learned  Judge  held  that  that  could  not  be 
done  and  we  agree  with  him. 

The  thing  can  be  put  in  two  ways:  (1)  on 
a  narrower  and  (2)  on  a  broader  ground. 
The  narrower  ground  is  this:  that  his  cause 
of  action  throughout  is  the  tortious  act  of 
which  he  was  the  victim  and  not  the  fact 
that  he    incurred  out  of  pocket  expenses, 
e.f/.,  for  getting  himself  cured  by  a  Doctor  in 
case  of  personal  injuries  or  getting  himself 
defended  by  a  Barrister  or  a  Vakil  in  case 
of  malicious  prosecution.     That    goes   to 
swell  the  bill  against  the  defendant  but  it 
is  not  a  cause  of  action.     The    cause    of 
action  is  that  which  was  done  to  him  by 
running  him  over  or  by  prosecuting  him 
maliciously  as  the  case  may  be.    When  we 
come  to  the  case  of  an  executor  or  a  legal 
representative,  his  cause  of  action  on  behalf 
of  the  estate  is  quite    different.     He  can 
only  sue  for  a  tangible,  measurable,  pecuni- 
ary loss  caused  to  the  estate  by  reason  oj 
the  tortious  act,  so  that  it  would  follow  on 
the  narrower  ground  that   although  both 
the  plaintiff  if  living,  and  his  legal  repra* 
sentative  after  his  death  had  a  cau^e   ol 
action  for   the   recovery  of   these  out  of 
pocket  expenses  caused  by  the  wrong  of 
the   defendant,   nevertheless   they    would,' 
recover  them  in  different  rights  and  for, 
different  reasons.    The  living  plaintiff  will 
recover  them  as  part  of  the  damages  fof 
his  general  cause  of  action,  i.  e.,  maliciouq 
prosecution;  while  to  the  executor  or  a& 
ministrator,  the  expenditure  would  be  the 
sole  cause  of  action,  because  to  that  aloftQ 
would  he  be  entitled  to  a  judgment.     It 
may  be  put  as  it  was  put  in  the  English 
case  of  Pulling  v,  Gnat  tfasfam  Rmwa,y 


[921,0,1:926]  LgojiMotas  *  SOLOMON  JDDAH  MEYHB,  367 

Co,  (1)  on  the. broader  ground "tfcat"  these       Application     against    an    order  of    the 
expensed  'are-   uot   ,4he     losses     to     the    llesident  at  Adfen.    -     . 
estate  of  the  deceased?  within  the   ttean-        Mr.  Binning  (with  him  Messrs.  Crawford 

Bailey  &  (Jo.),  for  the  Applicants-. 

Mr.  O'Gorman  (with  hitff  Mr.  K.  N.  Koyd- 
jee) ,  .f  or  tf*e.  Opponents. 

JUDGMENT. 

Macleod,  C.  J.— A  petition  was  filed 
in  this  Court  by  Leoh  Moses ,, hi n  Mpses 
Enoch  Lav.i  a,nd  Hanna  Menahem  Haiter, 
daughter  &nd  widow  of  one  Mosea  bin 
Moses,  stating  ,  that  the  sons  of  Dawogd 
Moses,  brother  of  the  deceased  Moses  biji 
Moses  had  applied  to  the  Court  of. the 
Resident  at  Aden  for  the  grant  of  the 
Letters  of  Administration  with  the  Will 
annexed  of  the  estate  of  Moses  Enoch  Levi, 
the  father  of  the  said  Moses  bin  Moses. 
The  Court  of  the  Assistant  Resident  issued 
citations,  and  the  petitioners  filed  a  caveat 
against  the  grant  of  letters.  The  Assistant 
Resident  finding  the  matter  contentious 
directed;  under,  s.  75  of  the  Probate  and 
Administration.  Act  that  •  the.  -petition 
and  the  documents  should  be  returned 
to  the  applicants  for  submission  to  the 
Resident.  The  Court  of  the  Resident  then 
issued  notices  fixing  April  17,  for  the 
hearing  of  the  said  application.  Thereafter 
because  the  petitioners  did  not  file  an 
affidavit  in  support  of  their  caveat  within 
eight  days  prescribed  by  r.  60ft  of  the 
Rules  of  the  Bombay  High  Court,  their 
objections  were  invalidated,  and  therefore, 
overruled.  The  petitioners  applied  to  this 
Court  on  June  27,1924,  to  set  asid«  this 
order ;  but  the  application  was  rejected  on 
the  ground  that  the  order  was  of  an  inter- 
locutory  nature.  On  July  14,  1924,  the 
Resident  without  hearing  the  petitioners 
on  their  objections  granted  Letters  of 
Administration  to  the  applicants.  The 
petitioners  applied  to  this  Court  to  call  for 
the  record  and  proceedings  in  order  that  the 
order  might  be  set  aside.  A  Rule  was 
granted.  Apparently  it  was  noted  at  the 
time  that  aqueation  might  arise  Whether 
this  Court  was  competent  to  entertain  an 
application  under  s.  115  of  the  Code,  as  the 
judgment  or  order  complained  against  was 
appealable.  In  Rahimbhai  Jamabhoy  v. 
Mariam  Abdul  Kasul  (1),  it  was  held  that 
t)ais  High  Court  had  jurisdiction  to  interfere 


ing  of  the  Acft£iof  P^rliain^nt  (the  word- 
ing of  which  is  practically  identical 
witht  thatof  the  ludmu  Statute),  because 
they  are  so  submerged  and  pvertopped 
by  the  real  cause  of  action  which  w£s  th© 
tortious  vinjury  here  malicious  prosecution) 
that  they  must  ba  treated  as  a  mere  inci- 
dent; of  that  cauae  of  action  and  not  as 
giving  rise  'to  a  separate  head  of  liability 
enuring  after  death,  to  tha  leg^l  representa- 
tive. On  that:  the  legal  representative 
could  not  start  an  independent  action  for 
the  expenses  of  the  malicious  prosecution  as 
in  the  present  case.  We  respectfully  agree 
but  in  any  event  we  think  that  the  learned 
Judge  was  quite  correct  in  holding  in 
accordance  with  the  authorities  in  Calcutta 
arid  .Madras'  that  the.cause  of  action  of  the 
deceased  man  himself  and  that  if  any  of  his 
executors,  are  so  different  that  it  would  be 
impossible  to  permit  his  legal  representa- 
tives to  carry  on  a  suit  instituted  by  him 
to  recover  damages.  That  being  so,  there 
is  no  cause  of  action  and  this  appeal  will  be 
dismissed.  One  set  of  costs  to  be  divided. 

v.  N.  v.  Appeal  dismissed. 

fc.  K. 

(1)  (1882;  a  Q,  B.  D.  110;  51  L.  J.  Q.  B.  453,  30  W. 
R,  708;   45  J,  P,  617. 


BOMBAY  HIGH  COURT: 

CIVIL     EXTRAOKDINAKY   APPLICATION    No.    219 

OF  1924. 

August  11,  1925. 
Present :— Sir  Norman  Macleod,  KT.,  Chief 

Justice,  and  Mr.  Justice  Coyajee. 
LEOH  MOSES  AND  OTHERS— APPLICANTS 

"•     .J       * '     »       versus 

SOLOMON  JUDAff  MEYER—OpPONBNis. 
Civil  Procedure    Code  (Act    V   of    1908),  s   115- 
latter$  of  Administration,    grant    of,  by  Resident  at 
.1  h  'i  -jfc-  MF"»i--  Juris'lidi-  "   of  Bombay  High  Court. 
The   Horn  hay   lliuli    I'wsit    has  no  jurisdiction  to 
interfere  in  revision  witJvbn  appealable   order  of  the 
Resident's  Court  at  'Aden. 


An  order  granting  Letters  of  Administration  passed    in  j^evisibnwith  any  order  passed  by  the 
'  '  * 


by  the  Keeident'e  Court  at  Aden,  is  a  final  judgment 
againfct  which  an  appeal  would  lie  to  the  Privy  Council* 
Ifc  is  riot,  therefore,  open  to  the  Bombay  High  Ccmt 
to  entertain  an  application  in  reviskn  egaicet  tvch  'tn 
OfrJer, 


Resident  in  'the    exerqi$6  of  his.  Civil* 
di'ction   u-nder  the  Aden  Acfc    jj  of 


(I)  5  Ind.  Caa,  867;  34  B,  267;  12  Bom,  L,  B.  149, 


urs- 


ooo 


WJUUBI/A9  HAUVTAill    Vi 


feel  doubtful  whether  such  an  assumption 
of  jurisdiction  is  warranted  under  the 
terms  of  the  Act,  but  in  any  event,  the 
case  decided  by  the  Aden  Court  must  be 
one  from  which  no  appeal  lies.  The  Aden 
Court  is  a  Court  of  final  appeal,  and  the 
decision  in  this  case  is  a  final  judgment  or 
order  gran  ting  Letters  of  Administration  to 
the  applicants.  There  would,  therefore,  be 
an  appeal  to  the  Privy  Council,  and  it  is 
not  competent  to  this  Court  to  deal  in 
revision  with  such  a  judgment  or  order. 
The  Rule  is  discharged  with  costs. 

Coyajee,  J»— I  concur. 

z.  K.  Rule  discharged.  * 


feA*fG66N  HiGtt  COUfcT. 

ClVIL  MlSCBLLANBOCS   APPEAL   No.  7 

OP  1925. 

May  11, 1925. 

Present :— Mr.  Justice  Rutledge  and 

Mr.  Justice  Heald. 
MA  ME  MYA— APPELLANT 

versus 
MA  MIN  ZAN— RESPONDENT. 

Civil  Procedure  Code  (  Act  V  of  1908),  0.  XLI,  r.  23, 
0.  XLIII,  r.  1  (u) — Suit  decided  on  merits —Appeal 
— Remand  for  re-decision  after  adding  necessary  party 
— Appealt  whether  lies — Buddhist  Law,  Burmese — 
Suit  to  recover  share  of  inheritance — Necessary 
parties. 

Where  an  Appellate  Court  sets  aside  a  judgment  of 
the  Trial  Court  which  has  been  given  on  the  merits 
and  remands  the  case  for  a  fresh  trial  on  the  ground 
that  a  necessary  party  has  not  been  impleaded  as  a 
defendant  to  the  suit,  the  order  of  remand  does  not 
fall  within  the  purview  of  r.  23,  O.  XLI  of  the  0.  P.  C. 
and  is  not,  therefore,  appealable  under  r,  1  (u)  of 
O.  XLIII. 

In  a  suit  by  an  adoptive  daughter  of  a  deceased 
Burmese  Buddhist  couple  to  recover  her  share  in  the 
jointly  acquired  estate  of  her  adoptive  parents,  all 
persons  who  are  co-heirs  of  the  deceased  must  be 
impleaded  as  parties. 

Miscellaneous  appeal  from  an  order  of 
the  District  Court,  Henzada,  in  C.  A. 
No.  74  of  1924. 

Mr.  R.  M.  Sen,  for  the  Appellant. 

Mr.  D.  Dutt,  for  the  Respondent. 
JUDGMENT. 

Heald,  J.— Appellant,  claiming  to  be 
the  adoptive  daughter  of  Nga  Le  and  his 
first  wife  Ma  Po,  sued  respondent  who  is 
Nga  Le's  second  wife,  to  recover  the 
share  of  the  jointly  acquired  property  of 
the  marriage  of  Nga  Le  and  Ma  Po  to  which 
under  Burmese  Buddhist  Law  she  became 
entitled  on  Nga  Le's  death.  Respondent 


haft  a  minor  son  by  Nga  Le  who  was  no 
made  a  party  to  the  suit. 

The  Trial  Court  gave  appellant  a  decrei 
for  a  five-eighth  share  of  the  property. 

Respondent  appealed  and  one  of  he: 
grounds  of  appeal  was  that  her  son  by  Ngi 
Le  was  a  necessary  party. 

The  lower  Appellate  Court,  holding  tha 
the  son  was  a  necessary  party  set  aside  th< 
judgment  and  'decree  of  the  Trial  Coun 
and  remanded  the  case  for  a  fresh  trial  witl 
the  son  added  as  a  defendant. 

Appellant  appeals  but  I  do  not  think  tha' 
any  appeal  lies.  Order  XLIII,  r.  1  (u)  givei 
a  right  of  appeal  against  an  order  undei 
0.  XLI,  r.  23  but  that  rule  appiles  onl] 
when  the  Trial  Court  has  disposed  of  th< 
suit  on  a  preliminary  point.  It  is  impossibli 
to  say  that  the  lower  Court  in  this  cas< 
disposed  of  the  suit  on  a  preliminary  poinl 
and  so  neither  O.  XLI,  r.  23  nor  O.  XLIII 
r.  1  (u)  applies. 

I  would,  therefore,  dismiss  the  appeal  or 
this  ground,  but  I  would  add  that  althougl 
on  the  death  of  Nga  Le,  his  son  by  respond- 
ent was  not  one  of  his  heirs,  nevertheless 
since  he  had  become  an  heir  by  reason  oi 
the  re- marriage  of  his  mother  before  the 
institution  of  the  suit,  I  think  that  he  was 
a  proper  party. 

I  would  also  add  that  the  learned  Judge 
in  the  lower  Appellate  Court  has  evidently 
read  the  judgment  in  the  case  of  Ma  E 
Hmyinv.  MaungBa  Maung(l)  perfunetorilj 
and  has  failed  to  understand  it. 

I  would  dismiss  the  appeal  with  costs 
Advocate's  fees  to  be  three  gold  mohurs. 

Rutledge,  J.— I  concur. 

z.  K.  Appeal  dismissed. 

(1)  83  Ind.  Gas.  426;  2  R.  123;  (1924)  A.  I.  K.  (R,) 
298. 


BOMBAY  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  746  OF  1924, 

August  14, 1925. 
Present:— Si?  Norman  Macleod,  KT.,  Chief 

Justice,  and  Mr.  Justice  Coyajee. 

CHUNI  LAL  MOKA14DA8  MARWADI— 

DEFENDANT— APPELLANT 

versus 

E.  CHRISTOPHER  AND  OTHERS— 
PLAI  NTIFFS — RESPONDENTS. 

Usurious  Loans  Act  (X  of  1918),  ss.  2  (S),  $—Suit  to 
redeem  pledged  ornament*— Interest,  high  rate  o/— • 
Relief,  whether  can  be  granted, 


I.  0.  1926] 


MARWADI  t?,  CUIUSTOPHBR. 


369 


A  suit  by  a  debtor  to  redeem  certain  ornaments 
pledged  by  him  with  the  defendant  does  not  fall 
within,  the  purview  of  s.  2  (3)  of  the  Usurious  Loans 
Act,  and  s.  3  of  the  Act  has,  therefore,  no  application 
to  such*  a  case. 

Second  appeal  from  the  decision  of  the 
Acting  Diatiict  Judge,  Poona,  in  Appeal 
No.  95  of  1924,  varying  a  decree  of  the  Joint 
Subordinate  Judge  at  Poona,  in  Civil  Suit 
No.  1116  of  1923. 

Mr.  S.  R.  Bakhale,  for  the  Appellant. 

Mr.  J.  G.  Rele,  for  the  Respondents, 
JUDGMENT. 

Macleod,  C.  J.  —  The  plaintiffs  sued 
to  redeem  their  ornaments  by  paying  the 
loan  amount  and  interest  thereon  at  eighteen 
per  cent,  per  annum.  They  admitted  that 
they  borrowed  the  amount  of  Rs,  2,000  for 
their  business  from  the  defendant  and 
passed  to  him  a  promissory  note  dated 
September  17,  1922,  for  that  amount  on 
the  pledge  of  ornaments  and  Cash  Certi- 
ficates of  the  Post  Office,  agreeing  to  pay 
interest  at  6|  per  cent,  per  mensem,  but 
they  alleged  that  they  were  orally  told 
by  the  defendant  that  they  would  be 
charged  interest  at  1J  per  cent,  per 
mensem  on  the  promissory  note  amount 
when  it  was  returned.  The  defendant 
denied  ever  having  promised  to  charge 
interest  at  1^  per  cent,  per  mensem. 

The  chief  contention  of  the  plaintiffs  was 
that  the  Court  could  give  relief  against 
the  transaction  as  being  harsh  and  oppres- 
sive under  ss.  16,  19-A  and  74  of  the  Indian 
Contract  Act  and  the  Usurious  Loans  Act 
X  of  1918.  It  is  quite  clear  that  the  provi- 
sions of  the  Indian  Contract  Act  would  be 
of  no  assistance  whatever  to  the  plaintiffs. 
They  wanted  money  for  their  business  and 
expected  to  make  a  good  profit  out  of  the 
business  when  assisted  by  the  loan  from  the 
defendant.  The  first  plaintiff  had  to  admit 
that  she  consented  freely  and  willingly  to 
pay  a  high  rate  of  interest  in  anticipa- 
tion of  realising  a  bumper  profit  out  of  her 
own  business.  The  defendant  demanded 
one  anna  interest  and  she  consented.  There 
cannot,  therefore,  be  any  question  of  undue 
influence  or  misrepresentation^  and  the 
Trial  Judge  was  right  in  his  decision  on  this 


The  Judge  tjben  referred  to  the  Usurious 
Loans  Act  X  of  1918  ar*d  held  that  the  Act 
could  not  apply  where'flie  suit  is  brought 
by  a  debtor.  Under  s.  2(S)  a  suit  to  which 
the  Act  apfclle^  means  any  suit,  (a)  for 
the  recovery  ol  a  loan  made  after  the  com- 
mencement of  the  Act,  (b)  for  the  enforce- 

24 


ment  of  any  security  taken  or  any  agree* 
ment  whether  by  way  of  settlement  of  ac- 
count or  otherwise  made  after  the  com- 
mencement of  the  Act,  in  respect  of  any  loan 
made  either  before  or  after  the  commence- 
ment of  the  Act.  I  should  say  that  it  is 
possible  that  a  suit  for  the  enforcement  of 
an  agreement  whether  by  way  of  settlement 
of  account  or  otherwise  made  in  respect  of 
any  loan  might  include  a  suit  brought  by 
a  debtor. 

The  chief  argument  urged  in  appeal  was 
that  this  was  a  suit  to  enforce  such  an 
agreement,  namely,  the  agreement  to  charge 
interest  at  the  rate  of  18  per  cent,  and  not 
75. 

The  T:  -,1J.]:r-  <*•  s!ng  the  issues  against 
the  :  ,.,  '  •  "'-  -;!:1',-, ••  i  them  to  pay  the 
balance  due  according  to  the  promissory 
note  and  the  costs  of  the  suit  to  the  defend- 
ant, and  on  their  doing  so  they  were  at 
liberty  to  take  back  their  ornaments  lying 
with  the  Nazir  aa  produced  by  the  defend- 
ant. 

The  Acting  District  Judge  said  : — 

"  It  seems  to  me  that  the  nature  of  the 
suit  should  be  regarded  not  from  the  point 
as  to  by  whom  it  was  filed  but  from  the 
point  as  to  upon  what  matter  judicial  in- 
quiry became  necessary  and  judicial  pro- 
nouncement made.  Plaintiff  deposited  an 
amount  in  Court  and  asked  for  release  of 
security  pledged  and  adjudication  of  the 
amount  due  on  the  promissory  note.  If  the 
defendant  had  applied  for  recovery  of  the 
loan  made  by  him  the  course  of  the  suit 
would  have  been  exactly  the  same.  In  the 
absence  of  clear  direction  to  the  contrary, 
I  do  not  consider  that  the  application  of 
the  Act  can  be  refused,  merely  because  it 
is  the  debtor  who  came  to  Court  to  end 
the  relation  between  herself  and  the  money- 
lender. 

The  security  in  the  present  case  was 
ample.  The  interest  was  exorbitant.  It 
was  excessive  within  the  meaning  of  the 
term  as  explained  .in  s.  3  (2)  (a)  of  the 
Usurious  Loans  Act,  I  think  it  proper  in 
the  circumstances  to  reduce  it  to  one-third 
of  that  specified  in  the  protoissory  notej 
that  is  to  say  25  per  cent,  per  annum/1 

The  order  of  the  Trial  Court  was  varied 
accordingly. 

We  cannot  agree.  We  do  not  think  this 
is  a  suit  to  which  the  Act  applied.  It  can* 
not  be  paid  that  the  plaintiffs'  suit  is  for 
the  enforcement  of  any  security  taken.  It 
would  only  be  a  creditor  who  could  file  ot 


C7U 


KACHIAPPA  CHETTIAR  t).  MAHOMED  SAR1R  KHAN.  [92  I.  0. 


suit  for  the  enforcement  of  his  security. 
While  the  fact  that  the  plaintiffs  set  up  an 
agreement,  which,  being  contrary  to  the 
written  terms  of  the  promissory  note,  they 
were  unable  to  prove,  could  not  be  said 
to  change  the  suit  which  was  really  a  suit 
to  redeem  the  ornaments  pledged,  into 
a  suit  to  enforce  an  agreement  in  respect 
of  the  loan.  If  that  were  the  case,  it 
would  always  be  possible  for  a  debtor 
to  set  up  an  agreement  in  his  favour 
contrary  to  the  terms  of  the  contract  to 
support  a  contention  that  the  Court  was 
then  entitled  to  re- open  the  transaction  and 
exercise  the  powers  given  to  it  under  s.  3. 

We  must,  therefore,  allow  the  appeal 
and  restore  the  order  of  the  Trial  Court 
with  costs  throughout. 

Coyajee,  J.— I  concur. 

z.  K.  Appeal  allowed. 


RANGOON  HIGH  COURT. 

SPECIAL  SECOND  CIVIL  APPEAL  No.  417 

OF  1925. 
April  28,  1925. 
Present ; — Mr.  Justice  Carr. 

NACHIAPPA  CHETTIAR— APPELLANT 

versus 

MAHOMED  SABIR  KHAN- 
RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1008],  0.  XXI,  r.  SI, 
0.  -YLJ,  rr.  2St  25 — Mortgage  of  moveahle  property — 
Sale  of  property  ^n  execution  of  decree  against  mort- 
gagor—Mortgagee, whether  entitled  to  follow  property 
in  hands  of  purchaser — Remand,  what  amounts  in— 
Case  returned  for  finding,  whether  remanded. 

A  mortgagee  of  moveabie  property  is  not  entitled  to 
follow  the  mortgaged  property  into  the  hands  of  a 
purchaser  who  has  purchased  the  property  at  a  sale  in 
execution  of  a  decree  against  the  mortgagor 

A  case  can  be  remanded  only  when  it  is  retained  for 
a  fresh  decision.  The  word  remand  is  not  applicable 
to  an  order  returning  a  case  for  a  finding  on  a  par- 
ticular issue 

Special  second  appeal  from  a  decision 
of  the  District  Judge,  Rangoon. 

Mr.  Ba  Maw,  for  the  Appellant 

Mr.  Ankelsaria,  for  the  Respondent. 

JUDGMENT*— The  appellant  had  a 
mortgage  over  a  piece  of  land  and  a  number 
of  logs  of  timber.  Both  of  these  proper- 
ties were  purchased  by  the  respondent  at 
a  sale  in  execution  of  a  decree. 

The  only  question  that  arises  now  is  whe'- 
ther  the  appellant  is  entitled  to  follow  the 
moveabie  property  into  the  hands  of  the 
purchaser.  I  agree  with  the  District  Judge 


that  he  is  not.  Sufficient  authority  for  this 
proposition  is  to  be  found  in  the  decisions 
reported  aa  Sreeram  Narasiah  v.  Bammi- 
reddi  Venkataramiah  (1),  Raman  Chetty  v. 
Steel  Brothers  &  Co.  (2)  and  Maung  Shu'e 
Unyin  v.  Fulchand  (3). 

This  appeal  is,  theiefore,  dismissed  with 
costs. 

But  some  comment  on  the  procedure  is 
desirable.  The  District  Judge  "remanded" 
the  case  to  the  Sub-Divisional  Court  to  ascer- 
tain the  relative  values  of  the  immoveable 
and  moveabie  properties  with  a  view  lo  the 
assessment  of  costs.  I  take  no  exception  to 
that,  except  that  instead  of  "remanding"  the 
District  Judge  should  have  sent  the  case 
back  for  a  finding  on  this  question,  and 
af U  r  receipt  of  the  finding  should  have 
passed  his  final  judgment.  Instead  of  that 
he  merely  held  back  his  decree  until  the 
return  of  the  case.  I  do  riot,  however,  think 
that  any  exception  need  be  taken  to  the 
form  of  the  decree. 

The  word  "  remand"  should  be  used  only 
when  a  case  is  returned  for  decision.  It  is 
used  in  this  sense  in  the  C,  P.  0.  and  is 
not  used  there  in  the  provisions  for  return 
of  a  case  for  findings  This  seems  to  have 
caused  the  Sub-Divisional  Judge  to  mis- 
understand what  he  had  to  do.  All  that  he 
should  have  done  was  to  ascertain  the 
respective  values  and  report  to  the  District 
Judge.  Instead  he  had  a  fresh  decree  drawn 
up,  dated  the  8th  August  and  signed  it 
before  returning  the  case. 

This  he  had  no  jurisdiction  to  do. 
Moreover,  the  decree  was  incorrectly  drawn 
up.  This  decree  is  of  no  effect  and  the 
decree  of  the  District  Court  in  any  case 
supersedes  it. 

To  make  things  clear  the  final  decree  of 
this  Court  will  be  a  mortgage-decree  over 
this  immoveable  property  in  suit  for 
Rs.  5,000  with  the  costs  and  interest  allowed 
in  the  original  decree  of  the  Sub-Divisional 
Court  and  fixing  the  same  date  for  payment. 
It  will  be  declared  that  the  liability  under 
this  decree  of  the  present  respondents  is 
limited  to  the  amount  of  the  sale-proceeds 
of  the  immoveable  property,  and  that  the 
costs  awarded  to  him  in  this  Court  and  the 
District  Court  are  separately  payable  to 
him  by  the  appellant. 

z.  K.  Decree  modified. 

(1)  47  Ind.  Gas.  976;  42  M.  59;  35  M,  L.  J.  450;  8  L. 
W.  517;  (1918)  M.  W.  N.  718;  24  M.  L,  T.  454. 

(2)  2  Ind.  Gas   351;  5  L.  B.  R.  8. 

(3)  74  Ind.  Caa.  52;  1  Bur,  L.  J.  136;  (1023)  A,  I,  R, 
(R.)  00, 


[92  I.  6.  Id26]  JBTHANAND  TEKOHANfc  V.  SfeCRfeTARV  OF  fitATR  POfc 


S71 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

ORIGINAL  CIVIL  SUIT  No.  552  OF  1921. 

November  22,  1923. 

Present: — Mr.  Kennedy,  A.  J.  C. 

JETHANAND  TKKCHAND— 

PLAINTIFF 

versus 

THB  SECRETARY  OF  STATE  FOB 
INDIA  AND  ANOTHER— DEFENDANTS. 
Railways  Act  (IX  of  1890),  s.  72— Risk  Note  B}  goods 
consigned   under — Loss,    damages  for,  suit  to  recover 
— Liability  of  Railway  Company,  extent  of —Burden 
of  proof. 

Under  Risk  Note  Form  B,  all  that  is  required  is  that 
the  standard  of  the  carrier  should  not  fall  below  the 
common  practice  of  the  Railway,  and  it  is  only  when 
the  loss  is  due  to  some  act  of  dereliction  of  duty 
which  has  reduced  the  standard  to  somewhat  below 
the  ordinary  standard  of  precaution  that  the  Railway 
Company  is  liable  under  the  Risk  Note.  [p.  372, 
col.  2 1 

In  a  suit  to  recover  damages  from  a  Railway  Com- 
pany for  the  loss  of  goods  consigned  to  the  Company 
for  carriage  under  Risk  Note  Form  B,  it  is  necessary 
for  the  plaintiff  to  show  that  the  loss  was  (hie  to  wilful 
neglect  or  other  contingency  which  renders  the  Com- 
pany liable  under  the  terms  of  the  Risk  Note.  fp.  372, 
col.  1.] 

Mr.  Hassomal  M.  Gurbuxani,  for  the 
Plaintiff, 

Messrs.  Tolasing  K.  Advani  and  T.  G. 
Elphinston,  for  the  Defendants, 

JUDGMENT.— The  plaintiff  on  the 
18th  March  1920  bought  250  bags  of  flour 
from  defendant  No.  2,  the  Ganesh  Flour 
Mills.  On  the  18th  March  1920  the  Ganesh 
Flour  Mills  put  these  250  bags  on  the 
North  Western  Railway  at  Delhi  for  des- 
patch to  Karachi.  The  North  Western 
Railway  is  a  State  Railway  and  is  represent- 
ed in  this  suit  by  the  Secretary  of  State. 
Only  231  bags,  however,  arrived  at  Karachi, 
the  remaining  19  bags  having  been  lost  in 
transit  between  Delhi  and  Karachi.  .The 
plaintiff  having  failed  to  recover  anything 
from  either  the  Flour  Mills  or  the  Railway 
brought  an  action  against  both,  (he  Rail- 
way and  the  Mills. 

The  cause  of  action  was  somewhat  difficult 
to  ascertain,  because  in  para  3  of  the  plaint 
the  suit  is  against  the  Railway  defendant 
No.  1  for  failure  to  deliver  the  19  bags  or 
>heir  price  and  against  defendant  No.  2  in 
the  alternative. 

The  Miljs  said  that  their  liability  to  the 
plaintiff  expired  as  soon  as  the  bags  were 
handed  over  to  th^  Railway,  and  they  as* 
Berted  that  the  Railway  took  possession  of 
them  as  a  common  carrier  to  deliver  to  the 
plaintiffs,  They  also  set  up  the  terms  of 


the  contract  which  exonerates  the  Mills 
from  any  liability  in  respect  of  any  goods 
purchased  from  it  as  soon  as  such  goods 
have  left  the  godowns  of  the  Mills. 

The  Railway  set  up  that  the  suit  was  bad 
in  its  form  and  said  that  the  goods  were 
consigned  under  Risk  Note  Form  B  which 
exempts  the  Railway  from  liability  from  any 
loss  of  goods  so  consigned  except .  under 
certain  special  circumstances  which  the 
Company  pleads  are  here  non-existent. 
The  Court  framed  various  issues  and  the 
case  has  now  been  heard. 

On  the  first  issue,  whether  the  suit  ia 
bad  for  multifariousness,  it  is  certainly 
difficult  for  me  to  understand  how  the  same 
suit  can  lie  against  both  the  defendants, 
but  I  do  not  think  that  need  detain  us. 
On  the  second  issue,  the  question  as  to  es- 
toppel of  the  plaintiff  does  not  arise,  it 
does  not  appear  that  the  plaintiff  has  made 
any  admission  which  would  prejudice  the 
right  of  parties  to  recover  any  losses  which 
may  have  been  caused  by  the  failure  of  the 
defendant  No.  2  to  deliver  these  goods  to 
the  plaintiff,  at  any  rate  no  such  statement 
is  proved  before  me,  and  no  arguments 
have  been  addressed  to  me  on  the  subject. 

Issue  No.  3. — The  consignment  was  cer- 
tainly booked  at  the  owner's  risk  under  the 
Risk  Note  Form  B.  Issues  Nos.  4,  5  and  6 
have  been  postponed  for  the  present.  The 
remaining  issues  Nos  7  to  10  can  be  put 
more  concisely  and  I  propose  to  discuss  them 
on  the  following  lines: — The  goods  were 
bound  to  be  delivered  to  the  plaintiff,  but 
it  now  appears  to  me  quite  clear  that  it  was 
the  duty  of  the  Mills  to  deliver.  Looking 
at  the  contract,  the  contract  calls  for 
delivery  at  Karachi.  Clause  4  exonerates 
the  Company  from  responsibility  for  late 
delivery  at  Karachi  Station  only  if  the 
delay  iadue  to  certain  contingencies,  which 
do  not  arise  in  this  case.  Under  cl.  5  the 
purchaser  is  required  to  take  delivery  in 
Delhi  only  on  the  condition  that  waggons 
are  wholly  unavailable  to  transfer  the  con- 
signment from  Delhi  to  Karachi.  Moreover, 
the  bags  were  put  upon  the  Railway  and 
receipt  taken  not  in  the  name  of  the  pur- 
chaser but  in  the  name  of  the  Mills  and  the 
Railway  receipt  is  forwarded  to  a  Bank  in 
Karachi  being  endorsed  over  to  such  Bank 
and  it  was  only  upon  satisfaction  of  the 
Bank  that  the  receipt  was  to  be  handed 
over  by  the  Bank  to  the  purchaser. 

It  is  true  that  cl.  3  of  the  contract 
says  that  the  Company  is  not  responsible 


JETHANANAND  TEKCHAND  V.  SbCRBTARY  OP  STATE  FOR  INDIA.          [92  I.  0,  1926] 


372 

for  shortage  of  goods  after  they  have  been 
removed  from  their  godowne,  but  that  clearly 
BJ list  mean  after  the  purchaser  has  taken 
delivery  whether  in  Delhi  at  the  god  own  of 
the  Company  or  at  the  contractual  place  of 
delivery  from  the  godown  of  the  agents, 
That  being  so,  viz  ,  the  contract  being  for 
the  delivery  of  these  goods  at  Karachi,  it  is, 
in  my  opinion,  to  the  Mills  and  not  to  the 
Railway  Company  that  the  plaintiffs  must 
look.  The  Railway  Company  has  nothing 
to  do  with  the  plaintiffs  being  merely  an 
instrument  by  which  the  Mills  were  at- 
tempting to  fulfil  their  contract  for  delivery 
in  Karachi.  As  the  Mills  failed  so  to  deliver, 
for  whatever  cause  it  might  be,  it  is  not  I 
think  possible  for  the  Mills  to  refuse  to 
fulfil  their  contract.  As  regards  defendant 
No,  2  there  will  have  to  be  a  decree  in 
respect  of  these  bags. 

Coming  now  on  to  the  question  of  defend- 
ant   No.  2  it  appears  to  me  clear  enough 
that  the  plaintiff  has  no  cause  of  action 
against  the  Railway  Company.    Very  like- 
ly the  Mills  may  have  but  with   that  I  am 
not  concerned.    But  perhaps  it  is  better  to 
record  a  finding  as  to   the  question  of  the 
liability  of    the  Company  assuming   that 
they  were  agents  of  the  plaintiff  as  common 
carriers  to  the  plaintiff.    The    goods  were 
shipped  under  this    shipping    note    which 
has  frequently  been  the  subject  of   judicial 
interpretation,  and  has  been  exposed  to  a 
great  deal  of  criticism  both  on    account  of " 
the  rigorous  nature  of  the  terms  imposed 
by  it,  and   its  obscurity  and  it  is  well-es- 
tablished that  assuming  prima  -facie  that 
there    is  a  loss,  it    is    necessary,    for  the 
claimant  to  show  (as  indeed  clearly  appears 
from  the   wording  of  the    clause)  that  the 
loss  was  due  to  some  wilful  neglect  or  other 
contingencies  which  render   the   Company 
liable  for  the  loss.    Now  nothing  is  known 
about  this  consignment  except  so  far  as  the 
evidence  goes  that  at  Bhatinda  the  waggons 
said  to  contain  these  250  bags  were    sealed, 
and  it  was  reported  to  the  Guard  at  Mcleod 
Ganj  that  the  seals  were  intact  and    that  it 
was  at  Bahawal  Nagar,  which  is  said  to  be 
about  36  miles  from  *  Mcleod  Ganj  that  the 
seals  were  found  broken  and  on  examina- 
tion the  shortage  was   discovered.    There 
was,  therefore,  apparently  a   loss    due  to 
theft  from  a  running  train.    This  being  so, 
if  it  were  necees ary  for  me  to  decide  it, 
I    should    hold    that    the    Company  was 
exempt  under  the  Risk  Note. 
Jt  may  w^ll  be  that  the  Railway  Company 


did  not  take  as  many  precautions  as  they 
might  conceivably  do,  but  that  is  not  what 
is  aimed  at  under  the  Risk  Note.  All  that 
the  Risk  Note  requires  is  that  the  standard 
of  the  carrier  should  not  fall  below  the 
common  practice  of  the  Railway.  It  is 
a  reasonable  enough  clause,  in  my  opinion, 
because  the  common  contract  of  the  Rail- 
way is  known  to  consignors  and  if  they 
choose  to  undertake  a  risk  of  loss  incur- 
ring to  their  consignment  consequent  upon 
this  common  conduct  they  cannot  afterwards 
complain  if  they  have  been  unfortunate 
enough  in  any  particular  instance.  It  is 
only  when  the  loss  is  due  to  some  act  of 
dereliction  of  duty  which  lias  reduced  the 
standard  to  somewhat  below  the  ordinary 
standard  of  precaution  that  the  Railway 
Company  is  liable  "nder  the  Risk  Note. 

It  may  be    observed    that  I  have  not 
decided,  whether  assuming  that  the  Mills 
were    otherwise  free  from  liability  on  the 
ground   that  they    were    bound    to  make 
delivery  to  the  plaintiff    at  Delhi  and  not 
at  Karachi,  they  would  still  be  liable  be- 
cause they  chose  to  send  these  goods  with- 
out specific  instructions,  by  the    Risk  Note 
B.    There    is    no    specific    issue   on  that 
question  and  it  would  be  difficult  to  decide 
that    without   knowing   what    the  natural 
course  of  trade  was,  and  without  giving 
the    parties    an  opportunity    to  lead   evi- 
dence on  that  particular  point.    I,  therefore, 
say  nothing  about  it,  and  it  is  not  necessary 
for  this  suit.    As  regards    the  claim  for 
market  price  of  the  goods    I  do  not   think 
that  the  plaintiff  is    entitled  to  -that.    He 
has  not  brought  his  suit  as  I  understand  it, 
for  damages  but  for  recovery   of  a  specific 
number  of  bags.    I  thin  k  he  is  only  entitled 
to  a    decree  against  defendant    No,  2  for 
Rs.  427-11-0  with  interest  at  six   per  cent, 
from  25th  March  1920  to  date  of  suit    and 
further  interest  on  the  principal    amount 
at  six  per  cent,  till  the  date  of  payment, 
withcosls.    Against  these  costs   are  to  be 
set-off  the  costs    incurred  in    sommoning 
the  Manager  of  the  second  defendant.    I 
am  of   the  opinion  tnat  that  sommoning 
was  unnecessary  and  I  will  set  off  Rs.  95 
in  respect  of  it,    There  will,  therefore,  be  a 
decree  for  the  plaintiff  agaifrst  defendant 
No.  2  with  costs    as    aforesaid    with  the 
exception   that  I  award  Rs.  95  as  counter 
costs     Suit  against  the   Railway  Company 
is  dismissed  with  costs, 
p,  B.  A,  Suit  tfimimd, 

z.  K, 


[92  I.  0.  1926]  SINNA  KARUPPAN 

MADRAS  HIGH  COURT. 

SBCOND  CIVIL  APPEIL  Nos.  855  TO  1039 

OF  1922. 
July  30,  1925 

Present:  — Mr.  Justice  Phillips, 
SINNAKARUPPAN  AND  OTHERS- 
DEPENDANTS— APPELLANTS 

versus 

R.  M.  P.  S.  MUTIIIAH  CHETTIAR  AND 
OTHERS — PLAINTIFFS —RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  190$},  0  VII,  r  10 
— Limitation  Act  (IK  of  .':•"»  /  /;  Plaint  presented 
in  wrong  Court—0)'d<>r  '.•»•  "»•;;>'••'',•  r»,  of  plaint  for 
presentation  to  proper  Court—Tim*  between  date,  of 
order  directing  return  and  date  of  actual  return,  ex- 
clusion of —Landlord  and  tenant  -Rent,  when  falls 
due  * 

Where  ?i  plaint  is  presented  in  a  wrong  Court,  and 
the  Court  after  inquiry  ultimately  directs  the  plaiut  to 
be  returned  for  presentation  to  the  proper  Court,  the 
plaintiff  is  entitled,  under  s  11  of  tho  Limitation  Act, 
to  exclude  the  whole  period  from  the  date  of  tho 
filing  of  the  plaint  in  the  wrong  Court  to  the  date  on 
which  the  plaint  is  actually  returned  for  re-presenta- 
tion, fp.  373,  col.  2  ] 

Krishna  Variar  v  Kunji  Toravo^iar^  3  M.  L,  J.  190, 
not  followed. 

Bapu  Ammal  v  Govinda  Padii/achi,  7  M  L.  J. 
261  and  Bishesher  Singh  v.  Ram  Daur  Singh,  A.  W,  N. 
(1887;  302,  followed. 

In  such  a  case  the  proceedings  terminate  not  on  the 
date  of  the  order  directing  the  pbiint  to  be  returned 
but  on  thf  date  of  the  actual  return  with  tho  endorse- 
ments on  the  plaint  in  accordance  with  the  piovisions 

of  o.  yir,  r.  10,  c.  P  o    f>  373,  ™i  2 1 

Ordinarily  rent  for  agricultural  land  becomes  due 
on  the  last  day  of  the  year  [p  374,  col.  1  ] 

Second  appeals  against  the  decrees  of  the 
District  Court,  Rcimnad  at  Madura,  pre- 
ferred against  the  decrees  of  the  Court 
of  the  iSpecial  Deputy  Collector,  Ramnad 
at  Manamadura. 

Messrs.  K.  Bhashyam  lyengar  and  A.  Sri- 
nivasa  lyengar,  for  the  Appellants. 

Messrs.  A.  Krishnasamy  Iyer  and  M. 
Patanjali  Sastri,  for  the  Respondents. 

JUDGMENT. — All  these  suits  were 
filed  in  four  batches  by  the  plaintiffs,  the 
first  being  filed  in  the  Subordinate  Judge's 
Court  on  the  Small  Cause  side,  The  Sub- 
ordinate Judge  held  that  the  suits  were 
not  of  a  small  cause  nature  and  that  they 
should  be  filed  either  on  '"  ••  ••.;!•  1  side  or 
else  in  the  Revenue  Court.  'I 'he  alter- 
native was  given  for  the  reason  that  the 
plaintiffs  claimed  both  warams,  and  it  was 
held  that  if  they  were  entitled  to  both 
warams,  the  suits  would  lie  in  a  Civil  Court 
whereas  if  they  were  not  entitled  to  both 
the  luarams,  the  suits  would  lie  only  in  a 
Revenue  Court.  The  suits  were  accordingly 
filed  in  the  Civil  Court  on  the  original  side. 
The  questioa  was  then  determined  and  it 


MUTHIAH  OHETTIAR.  373 

was  found  that  the  plaintiffs  did  not  possess 
both  the  warams  and  the  plaint  was  return- 
ed to  the  Revenue  Court.  The  only  question 
which  arises  here  is  one  of  limitation,  i.  e.\ 
uhether  the  time  taken  for  prosecuting 
these  suits  in  the  Small  Cause  Court  and  the 
Civil  Court  (original  side)  should  not  be  ex- 
cluded. The  lower  Appellate  Court  has 
held  that  the  plaintiff  has  prosecuted  these 
suits  with  due  diligence  and  consequently 
under  s.  14  of  the  Limitation  Act,  he  is 
entitled  to  exclude  the  whole  of  the  period. 
The  period  allowed  is  the  period  from  the 
date  of  the  filing  of  the  plaints  to  the  date 
on  which  the  plaints  were  finally  returned 
by  the  Court  for  representation.  It  is  now 
argued  that  this  is  not  the  corre'ct  period 
allowed,  the  contention  being  that  the  pro- 
ceedings terminated  on  the  date  of  the 
appellate  order  and  not  on  the  date  on 
which  the  plaints  were  originally  returned. 
This  wag  the  view  taken  by  a  Bench  of  this 
Court  in  Krishna  Var iarv.Kunji  Taravanar 
(Ij  a  case  decided  after  the  C.  P.  C.  of  1882 
came  into  force ;  it  merely  purported  to 
follow  the  decision  in  Abhoya  Churn  Chucker- 
butty  v.  Gour  Mohun  Dutt  (2)  which  was 
based  on  the  old  Code  of  1859  in  which  there 
was  no  provision  identical  with  O.  VII,  r.  10. 
When  the  C.  P.  C.  distinctly  orders  a  Court 
to  return  a  plaint  for  representation,  and  at 
the  same  time  to  endorse  on  it  the  date  of 
presentation,  the  date  of  return,  the  party 
presenting  it  and  the  statement  of  the 
reasons  for  returning  it.  I  regret  I  cannot 
agree  with  the  view  that  the  proceedings  with 
reference  to  that  plaint  can  be  said  to  have 
terminated,  when  there  was  still  an  act  to 
be  done  by  the  Court  which  had  seisin  of  the 
plaint.  With  all  respect,  I  am  of  opinion  that 
the  decision  in  Krishna  Vaj*iar  v.  Kunji 
Taravanar  (I)  cannot  be  justified  by  reason 
of  O.  VII,  r.  10,  C.  P  C.,  and  I  am  supported 
in  this  view  by  subsequent  cases  of  this 
Court.  In  Bapu  Ammal  v.  Govinda  Padi- 
yachi  (3)  the  time  to  be  excluded  is  held  to 
be  from  the  date  of  presentation  until  the 
date  of  return  of  the  plaint  and  thip  view  is 
also  adopted  in  Basvanappa  Shivrudrappa  v. 
Krishnadas  Govardhandas  (4)  and  Bishesher 
Singh  v.  Ram  Dhur  Singh  (5).  The  District 
Judge  has,  therefore,  rightly  calculated  the 
time  to  be  excluded  from  the  period  of 
limitation. 

(1)  3  M  L  J.  100 

(2)  24  W.  R.  26. 

(3)  7  M.  L.  J.  261. 

(4)  59  Ind.  Gas  743;  22  Bom.  L.  R.  1387;  45  B  443 

(5)  A,  W,  N.  (1887)  302.  *  ' 


RUSTOM  K,  BIDHVA  V.  INDIAN  MERCtf  ANTS  ASSOCIATION. 


ST4 

.  The  next  argument  is  directed  to  a  ques- 
tion of  fact,  namely,  whether  the  plaintiff 
was  exercising  due  diligence  during  the 
whole  of  that  period.  The  lower  Appellate 
Court  found  that  he  did  do  so  and  no  facts 
have  been  put  before  me  to  justify  me  in 
interfering  with  this  finding  of  fact.  In 
fact  the  arguments  are  all  based  on  what 
might  have  happened,  and  no  assertion  is 
made  as  to  any  particular  act  of  the  plaint- 
iff, to  show  that  he  did  not  exercise  due 
diligence.  I  must  presume  that  the  lower 
Court  has  considered  all  the  circumstances 
and  I  cannot  interfere  with  the  conclusion 
at  which  it  has  arrived. 

The  last  point  taken  is  with  reference  to 
certain  suits  in  which  it  was  said  that  the 
amount  "became  payable  when  the  kodai 
harvest  was  reaped,  namely,  in  September  or 
October.  A  large  number  of  plaints  were 
filed  in  October,  three  years  later.  Although 
some  were  filed  in  November,  it  does  not 
appear  in  which  of  these  cases  the  crop  was 
harvested  in  October,  nor  whether  in  those 
cases,  the  plaints  were  not  filed  also  in 
October,  even  if  it  is  assumed  that  the  cause 
of  action  arises  at  the  moment  that  the  last 
piece  of  crop  is  cut.  I  am  not,  however, 
prepared  to  accede  to  this  contention,  for 
ordinarily,  the  rent  of  each  year  becomes 
due  on  the  last  day  of  the  year,  and  there 
is  no  evidence  that  that  was  not  the  case 
in  respect  of  the  suit  tenancies.  If  that 
date  is  taken,  all  the  suits  were  within  time. 
I  am  not  at  all  satisfied  either  that 
the  cause  of  action  arose  in  October 
or  that  it  has  been  shown  that  in  any 
particular  case,  the  crops  were  cut  at  or 
before  that  time.  The  plaintiff  gave  the 
date  of  the  cause  of  action  in  the  plaint  and 
no  objection  was  taken  in  the  written  state- 
ments, and  consequently  that  must  be  taken 
as  the  correct  date. 

The  second  appeals  fail  on  all  these  points 
and  are  dismissed  with  costs  in  Second 
Appeal  No.  855  of  1922.  There  are  185 
appeals  to  which  this  judgment  applies  but 
the  respondent  is  only  represented  in 
Second  Appeal  No.  8*5  of  1922 ;  the  argu- 
ment being  the  same  in  all  the  cases.  Con- 
sidering the  large  number  of  suits  involv- 
ed 1  fix  the  fee  at  Es.  75. 

v.  N,  v.  Appeals  dismissed. 

Z  K 


i.  u. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

ORIGINAL  CIVIL  SUIT  No.  243  OF  1925. 

September  »,  1925 

Present :— Mr.  Raymond,  A,  J.  0. 

RUSTOM  K.  S1DHVA— PLAINTIFF 

versus 

THE  INDIAN  MERCHANTS  ASSOCIA- 
TION, KARACHI,  AND  OTHERS— 

DEFENDANTS. 

Karachi  Port  Trust  (Amendment)  Act  (VI  of  Wtt), 
s.  4  (2)— "Becoming registered"  meaning  of— Right  of 
election,  when  accrues 

The  word  "becoming"  has  been  deliberately  used 
in  contradistinction  to  the  word  "being"  in  s.  4  (2)  of 
the  Karachi  Port  Trust  (Amendment)  Act  of  1924,  and 
is  intended  to  connote  something  different  to  that  which 
would  be  conveyed  by  the  word  "being".  The  expression 
"becoming  registered"  in  the  section  means  in  the 
process  of  registration  as  contrasted  with  "being  regis- 
tered," which  refers  to  an  act  previous  to  the  election. 
Therefore,  an  association  mentioned  in  the  section 
even  though  unregistered  at  the  date  of  election, 
would  be  entitled  to  elect  representatives  to  the 
Karachi  Port  Trust  Board,  provided  it  was  in  the  pro- 
cess of  being  registered,  that  is  to  say,  was  making 
bona  fide  efforts  to  become  registered,  [p.  375,  col.  2  J 

Mr.  Srikishandas  H.  Lulla,  for  the  Plaint- 
iff. 

Messrs.  Kimatrai  Bhojraj  and  Tolasing 
Khushalsing,  for  the  Defendants. 

JUDGMENT.— This  is  a  suit  of  rather 
an  unusual  character.  The  plaintiff  Mr.  R. 
K.  Sidhva,  a  Parsi  gentleman  of  repute  in 
this  city,  seeks  to  set  aside  the  election 
of  two  prominent  citizens  of  this  place, 
Messrs.  Harchandrai  Vishindas  and  Shiv- 
rattan  G.  Mohatta,  defendants  Nos.  2  (a) 
and  (6)  by  the  Karachi  Indian  Merchants 
Association,  defendants  No.  1,  as  their  re- 
presentatives an  the  Board  of  Trustees  of 
the  Port  of  Karachi.  This  election  was 
held  on  the  23rd  February  1925.  Three 
candidates  stood  for  election,  the  plaintiff 
and  defendants  Nos.  .2  (a)  and  (6).  The 
last  two  were  elected  defeating  the  plaintiff 
by  a  very  narrow  majority  of  votes. 

1  am  not  concerned  with  the  motives 
that  may  have  inspired  the  plaintiff  in  in- 
stituting the  present  suit;  they  may  be  good 
or  bad.  He  raises  the  question  as  to  the 
validity  of  the  election  of  defendants  Nos.  2 
(a)  and  (6),  and  whether  as  a  member  of  the 
Karachi  Indian  Merchants  Association  or 
as  a  public  citizen  of  Karachi,  he  certainly 
is  competent  to  do  BO.  He  challenges  the 
validity  of  the  election  on  the  sole  ground 
that  the  Karachi  Indian  Merchants  Associa- 
tion, not  beingan  Association  registered  tin  der 
the  law  for  the  time  being  in  force  before  the 
date  pf  the  election  was  not  competent  to 


[92  I.  0.  1926]  BU8TOM  K.  SIDHVA  V.  INDIAN  MERCHANTS  ASSOCIATION, 


375 


elect  any  representatives  on  the  Port  Trust 
Board.  This  forms  the  crucial  point  in 
this  suit.  Though  no  doubt  other  issues 
have  been  raised  as  to  the  maintainability 
of  the  suit,  etc,,  the  main  issue  in  the  suit 
is  Issue  No.  I  which  is  as  follows:  — 

"Had  the  right  to  elect  representatives 
on  the  Karachi  Port  Trust  accrued  to  de- 
fendants No.  1  on  the  23rd  February 
1925?" 

Bombay  Act  VI  of  1924,  which  is 
described  $s  the  Karachi  Port  Trust  Amend- 
ment Act,  was  published  on  the  25th 
November  1924,  but  this  amending  Act 
was  to  come  into  operation  only  from  the 
1st  April  19.15.  The  immediate  purpose  of 
this  Act  was  undoubtedly  to  extend  the 
right  of  franchise  to  important  commercial 
bodies  in  Karachi.  Section  7  of  the  Origi- 
nal Karachi  Port  Trust  Act  VI  of 
1886  was  repealed  by  s.  4  of  the  amending 
Act  which  now  provided  for  additional 
representation  by  the  Karachi  Chamber  of 
Commerce,  and  empowered  the  Karachi 
Buyers  and  Hhippers  Chamber,  and  the 
Karachi  Indian  Merchants  Association  to 
elect,  each  of  them  two  of  their  members  as 
their  representatives  on  the  Karachi  Port 
Trust  Board.  Until  this  amending  fAct 
came  into  force  the  Karachi  Indian  Mer- 
chants Association  had  no  right  of 
representation  on  the  Karachi  Port  Trust 
Board,  but  the  Commissioner  in  Sind  under 
the  powers  vested  in  him  by  the  original 
Act  nominate i  one  of  their  members, 
usually  the  President,  to  a  seat  on  the 
Board. 

Now,  the  controversy  between  the  parties 
hinges  on  the  construction  to  be  placed  on 
flnb-s.  2  of  a.  4  of  the  amending  Act.  This 
sub-section  I  reproduce. 

"The  right  to  elect  trustees  conferred  on 
the  Karachi  Chamber  of  Commerce,  the 
Indian  Merchants  Association  and  the 
Karachi  Buyers  and  Shippers  Chamber 
shall  accrue  only  on  such  Chamber  of 
Commerce,  or  such  Indian  Merchants 
Association,  or  such  Karachi  Buyers  and 
Shippers  Chamber  being  or  becoming 
registered  under  the  law  for  the  time  being 
in  force  for  the  registration  of  Companies 
or  Associations*1, 

It  is  on  the  words  "being  or  becoming 
registered1*  that  the  Pleaders  for  the  res- 
pective parties  have  concentrated  their 
attention.  There  is,  of  course,  no '  difficulty 
whatever  as  to  the  interpretation  of  the 
word  "being".  If  it  stood  by  itself,  there 


could  not  be  the  vestige  of  a  doubt  that 
the  registration  of  the  Association  concern- 
ed was  to  be  a  condition  precedent  to  a 
valid  election.  It  is  the  word,  "becoming," 
however,  that  has  given  rise  to  the  contro- 
versy between  the  parties,  though,  in  my 
opinion,  in  consideration  of  the  circum- 
stances that  prevailed  at  the  time  of  the 
enactment  of  the  amending  Act,  its  inter- 
pretation ought  not  to  afford  much  difficul- 
ty. Mr.  Lulla  for  the  plaintiff  contends  in 
substance  that  the  words  "being  or  becom- 
ing11 connote  the  same  idea,  and  should  be 
construed  in  an  identical  manner.  Both 
these  words  according  to  him  require  as 
an  indispensable  condition  that  the  Associa- 
tion should  have  been  registered  before 
there  could  be  a  valid  election,  and,  there- 
fore, in  his  view  the  elections  of  defendants 
Nos.  2  (a)  and  (6)  prior  to  the  registration  of 
the  Karachi  Indian  Merchants  Association 
was  invalid  and  should  be  set  aside. 

It  is  rather  difficult  to  follow  Mr.  Lulla 
in  his  interpretation  of  the  word  "becom- 
ing "  If  the  meaning  underlying  this 
word  is  the  same  as  that  conveyed  by  the 
word  "being11,  then  it  is  inconceivable  that 
the  draftsman  should  have  used  two  word's, 
when  the  word  "being"  by  itself  would 
have  correctly  expressed  the  intention  of 
the  Legislature.  It  appears  to  me  obvious 
that  the  word  "becoming11  has  been  deliber- 
ately used  in  ^contradistinction  to  the  word 
"being11  and  fa  intended  to  connote  some 
thing  different  to  that  which  would  be 
conveyed  by  the  word  "being.11  The  words 
used  in  the  section  are  "becoming  register- 
ed/1 i.  e.,  as  I  interpret  them,  in  the  process 
-of  registration  as  contrasted  with  the  words 
"being  registered,"  which  refer  to  an  act 
previous  to  the  election.  The  Century 
Dictionary  explains  the  word  '!•:•  •  •::.i::Lr" 
as  an  intermediate  -i-:^v  I/;-! ween  t€being" 
and  "not  being.11  T!.-»  !i?<r,ii  meaning  of 
theword  "becoming11  inthesense  in  which  it 
is  used  in  this  Act,  would,  in  my  opinion,  be 
the  transitionary  stage  between  the  non-re- 
tfi<i  ration  and  the  registration.  If  the  Karachi 
l:i  nan  Merchants  Association  had  taken  the 
necessary  steps  to  have  itself  registered  under 
the  law  for  the  time  being  in  force  "before 
the  election  was  held,  though  the  registra- 
tion may  not  have  been  an  accomplished 
fact  before  the  date  of  the  elections,  yet 
there  would  have  been  a  sufficient  compli- 
ance with  the  terms  aud  conditions  as  pres- 
cribed in  sub  a.  2  tos.  4  of  the  amending 
Act,  1  cannot,  therefore,  agree  witU  Jdr. 


S76 


RUSTOM  K,  SItfHVA  V.  INDIAN  MERCHANTS  ASSOCIATION. 


[92  I.  0. 1926J 


Lulla  in  his  interpretation  of  the  words 
"becoming  registered"  as  implying  that  the 
registration  \vas  to  be  a  condition  precedent 
to  the  elections.  It  maybe  that  the  word 
"becoming11  does  not  convey  the  intention 
of  the  Legislature  very  explicitly,  it  was 
probably  used  for  want  of  a  better  word 
but  I  feel  no  manner  of  doubt  as  to  the 
sense  in  which  it  was  intended  to  be  under- 
stood and  my  province  is  jus  dicere  not  jus 
dare.  As  1  have  observed  the  amending 
Act  was  passed  into  law  on  the  25th  Novem- 
ber 1924.  I  am  informed  by  the  Pleaders 
that  on  this  date  none  of  the  Associations 
or  bodies  to  which  the  franchise  was  extend- 
ed, were  registered.  Whether  this  be  true 
or  not,  the  Karachi  Indian  Merchants  Asso- 
ciation had  not  been  registered. 

Now  under  s.  12  of  Act  VI  of  1886,  the 
elections  for  a  seat  on  the  Karachi  Port 
Trust  Board  are  to  be  held  "not  earlier  than 
the  15th  and  not  later  than  the  last  day  of 
the  month  of  February  next  preceding  the 
first  day  of  April  from  which  the  term  of 
office  of  the  new  trustees  is  to  commence.11 
The  ten&,  pf  office  of  the  new  trustees 
was  to  co^w?ience  on  the  1st  April  1925,  and 
as  the  election  was  to  take  place  in  the 
month  of  February  such  Associations  who 
had  the  right  to  elect  and  had  not  been 
registered,  Would  only  have  a  period  of 
scarcely  three  months  to  effect  the  registra- 
tion. It  was,  therefore,  anticipated  at  the 
time  when  the  amending  Act  was  passed 
that  the  registration  may  not  be  completed 
within  the  time  the  election  was  to  take 
place,  and  hence,  in  my  opinion,  the  words 
"being  or  becoming  registered"  were  insert- 
ed in  the  Act  not  only  for  the  benefit  of 
those  Associations  that  were  already  regis- 
tered, but  also  those  that  were  in  the  pro* 
cess  of  registration,  and  has  honestly  taken 
such  steps  as  were  necessary  to  have  them 
registered.  This,  I  conceive,  is  the  reason 
of  the  words  "becoming  registered1*  being 
inserted  in  the  amending  Act.  The  object 
of  the  registration  of  the  bodies  and  Associa- 
tions qualified  to  return  a  representative 
on  the  Port  Trust  Board  was  evidently  with 
a  view  to  placing  these  Associations  under 
the  control  of  Government,  and  as  long  as 
these  Associations  had  evinced  an  honest 
desire  to  comply  with  the  requisitions  of 
Government,  it  was  not  reckoned  a  matter 
of  any  importance  whether  these  Associa- 
tions were  registered  before  the  elections 
actually  took  place  or  later. 

Now,  I  have  no  doubt  that  in  the  present 


case  the  Karachi  Indian  Merchant  Association 
did  make  bonafide  endeavours  tohave  them- 
selves registered.  It  was  on  the  26th  August, 
1924,  that  they  addressed  a  letter  to 
the  Chief  Secretary  to  the  Government  of 
Bombay,  for  the  issue  of  a  license  as  to 
their  registration.  This  application  was 
made  under  s.  26  of  the  Indian  Companies 
Act.  The  reply  to  this  application  from 
Government  is  dated  the  25th  September 
1924.  The  applicants  are  informed  that  prior 
to  the  registration  the  memorandum  and 
articles  of  Association  of  the  Karachi  Indian 
Merchants  Association  were  to  be  scrutinized 
by  the  Solicitor  to  Government,  and  that 
notices  were  to  be  published  in  the  local 
newspapers  inviting  objections  to  the  regis- 
tration, and  some  other  formalities  had  to  be 
complied  with.  Further  correspondence 
then  ensued  between  the  applicants  and  the 
Government  of  Bombay  and  the  Solicitor  to 
the  Government  of  Bombay.  The  entire 
correspondence  has  been  exhibited.  It  will 
be  seen  from  a  perusal  of  it,  that,  though 
the  applicants  pressed  for  early  registra- 
tion, the  delay  in  the  registration  was 
inevitable.  The  memorandum  and  articles 
of  Association  were  revised  by  the  Solicitor 
to  Government,  and  sent  for  approval  to 
the  applicants.  The  public  notices  in  the 
papers  were  to  be  in  the  form  suggested 
by  Government.  Sometime  had  to  be 
allowed  to  give  the  public  an  opportunity 
of  lodging  their  objections,  if  any,  to  the 
registration.  In  short,  it  was  not  before 
the  12th  May  1925  that  the  Bombay  Govern- 
ment informed  the  applicants  that  their 
petition  had  been  granted,  and  they  were  re- 
gistered as  an  Association  under  s.  26  of  the 
Indian  Companies  Act.  The  correspondence 
clearly  reveals  this  indubitable  fact  that  the 
Karachi  Indian  Merchants  Association  was 
endeavour  ing  from  August  1921  tohave  them- 
selves registered  as  an  Association.  In  con- 
sequence of  the  time  involved  in  examining 
the  memorandum  and  articles  of  Association, 
and  in  complying  with  certain  requisite 
formalities,  the  Association  was  not  register- 
ed till  May  1925.  But  it  was  in  process  of 
registration, and  the  words  "becoming  re- 
gistered under  the  law  for  the  time  being  in 
force1'  wouldaptly  apply  to  them.  I,  therefore, 
hold  that  the  right  to  elect  representatives 
on  the  Karachi  Port  Trust  Board  did  accrue 
to  the  Karachi  Indian  Merchants  Association 
on  the  23rd  February  1925,  and  my  findiag 
on  this  issue  is  in  the  affirmative.  Th3 
election  of  defendants  Nos.  2  (a)  aad  (b;  is 


SBKKHU  MU8TABU  1>,  NANT. 


[92  I.  0. 1926] 

valid  and  the  plaintiffs1  suit  must,  therefore, 
fail  as  it  discloses  no  cause  of  action. 

There  are  some  other  issues  framed  in 
this  suit,  which  have  been  based  on  the 
defence  raised  to  the  plaintiffs'  action.  They 
mainly  refer  to  the  jurisdiction  of  the 
Court  to  try  the  suit  and  to  the  maintain- 
ability of  the  suit.  But  in  view  of  my 
finding  on  Issue  No.  1, 1  think  it  superfluous 
for  me  to  embark  on  a  consideration  of  the 
other  issues  in  the  suit.  The  foundation 
of  the  plaintiffs1  suit  is  the  ineligibility 
of  the  Karachi  Indian  Merchants  Asso- 
ciation to  elect  any  representatives  on 
the  Karachi  Port  Tru3t  Board  before  the 
Association  had  been  registered,  and  it 
is  this  factor  which  according  to  him 
supplies  the  cause  of  action.  As  I  have 
pointed  out  above  and  personally  I  feel  no 
doubt  as  to  the  correctness  of  my  finding, 
this  argument  is  based  on  an  erroneous 
construction  placed  by  the  plaintiff  on  the 
words  "becoming  registered,1'  As,  there- 
fore, I  think,  the  plaintiff  has  no  cause  of 
action,  the  plaintiffs'  suit  is  dismissed,  and 
he  must  pay  the  costs  of  defendants  Nos.  1 
and  2  (a)  and  (6).  However,  only  one  set  of 
costs  is  allowed. 

Before  concluding  this  judgment  one 
further  point  may  be  alluded  to,  not  indeed 
as  a  guide  to  my  decision,  but  as  tending 
to  confirm  my  interpretation  of  sub-s.  2 
of  the  amending  Act  On  the  6th  March, 
1925,  the  plaintiff  addressed  a  letter  to  the 
Commissioner  in  Sind  bringing  to  his  notice 
that  the  Karachi  Indian  Merchants  Associa- 
tion had  not  been  registered  on  the  23rd 
February  1925,  when  the  elections  took 
place,  and,  therefore,  the  elections  were 
ultra  vires  of  the  Association,  and  must  be 
regarded  as  invalid.  On  the  receipt  of  this 
letter,  the  Commissioner  in  Sind  had  a  letter 
addressed  to  the  Secretary,  Karachi  Indian 
Merchants  Association,  requesting  informa- 
tion as  to  whether  the  Association  was  a 
registered  body  prior  to  the  elections  of  the 
23rd  February  1925.  The  Secretary  replied 
that  the  Association  lay  unregistered  on 
the  date  of  the  elections,  but  that  an  appli- 
cation had  been  made  to  the  Bombay 
Government  in  August  1^24,  for  its  registra- 
tion, and  steps  had  been  taken  to  comply 
with  the  requisitions  of  Government  pre- 
liminary to  the  registration,  and  the  registra- 
tion was  daily  awaited.  Now  under  s.  5 
of  the  amending  Act  which  has  been  sub- 
stituted for  s.  8  of  the  original  Act,  the 
Associations  to  which  the  amending  Act 


877 


applies,  are  required  to  make  a  return  to', the 
Commissioner  in  Sind  of  the  names  of  the 
persons  elscted  by  them  as  their  represent- 
atives on  the  Port  Trust  Board.  Under 
s.  9  of  the  original  Act,  the  names  of  the 
persons  '"duly  elected'1  on  the  Board  are  to 
be  notified  in  the  Bombay  Government 
Gazette,  and  the  Sind  Official  Gazette.  t  The 
names  of  Messrs.  Harchandrai  Vishindas 
and  Shivrattan  Gordhandas  were  thus  notifi- 
ed as  being  "duly  elected."  Now  the  Com- 
missioner in  Sind  was  aware  not  only  of 
the  {illegal ion  made  by  the  plaintiff  that 
the  Karachi  Indian  Merchants  Association 
was  incompetent  to  hold  the  elections  be- 
fore its  registration,  but  also  of  the  fact  that 
it  was  not  registered  when  the  elections 
were  held  and  yet  it  was  declared  that 
defendants  Nos.  2  (a)  and  (6)  had  been 
"duly  elected."  The  words  are  "duly  elect- 
ed" not  merely  "elected",  and  this  would 
pre-suppose  that  the  Commissioner  in  Sind 
was  not  prepared  to  accept  the  allegation 
made  by  the  plaintiff  that  the  non-registra- 
tion of  the  Karachi  Indian  Merchants  Asso- 
ciation was  a  defect  fatal  to  the  validity  of 
the  elections,  as  he  was  assured  that  the  Asso- 
ciation had  already  applied  for  its  registra- 
tion. 

In  conclusion  I  need  only  briefly  refer  to 
the  Karachi  Port  Trust  who  are  defendants 
No.  3.  The  plaintiff  has  stated  in  his  plaint 
that  he  impleads  them  as  pro  forma  defend- 
ants. They  were  represented  by  Mr.  Tolasing 
who  stated  that  his  clients  were  indiffer- 
ent as  to  the  result  of  this  suit  and  they 
supported  neither  party.  He,  however, 
pressed  for  costs.  The  plaintiff  has  claimed 
no  relief  against  them,  and  they  need  not 
have  appeared  at  the  hearing.  I  do  not 
think  that  there  was  any  impropriety  on 
the  part  of  the  plaintiff  in  joining  them  as 
co-defenants.  They  were  included  ex  majori 
cautela,  and  if  not  necessary,  they  were  pro- 
per parties.  I  direct  defendants  No.  3  to 
bear  their  own  costs. 

z.  K.  Suit  dismissed. 

MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1676  OP  1922. 

April  29,  1925. 

Present : — Mr.  Justice  Phillips. 
SBKKHU  MU8THABU  alias  APPU 
RAVUTHAN— PLAINTIFF—APPELLANT 

versus 
NANI  AND  OTHERS— DEFENDANTS  Noa.  1  TO  4 

AND  6  TO  10— RESPONDENTS. 
Civil  Procedure   Code  (Act  V  of  1008),  w,  11,  Expl  • 


378 


RATlLAL  V.  RUGHUNATfl  MtJLJl. 


IV,  39,  ^—Execution  of  decree  —  Transfer  of  decree  ~ 
Death  of  decree-holder  —  Legal  representatives  brought 
on  record—  Order  confirmed  on  appeal—  Objection  by 
judgment-debtor  at  subsequent  stage  to  jurisdiction  of 
Court  to  make  order  —  Res  judicata. 

A  decree  was  transferred  for  execution  to  a  Court 
other  than  the  Court  which  had  passed  it.  The  decree- 
holder  thereafter  died  and  the  Court  to  which  the 
decree  had  been  transferred  made  an  order  adding  the 
legal  representatives  of  the  deceased  decree-holder  as 
parties  and  directing  that  execution  should  proceed. 
'«"  '  •-  •  sealed  against  the  order,  but 

1  .  .  "  .He  then  took  the  objection, 

which  he  had  not  taken  in  hi*  appeal,  tliat  the  Court 
to  which  the  decree  had  been  transferred  for  execution 
had  no  jurisdiction  to  add  the  legal  representatives  of 
the  deceased  decree-holder  as  parties  to  the  execution 


Held,  that  the  objection  must  be  deemed  to  have 
been  decided  adversely  to  the  judgment-debtor  in  the 
appeal  preferred  by  him  against  tho  order,  by  virtue 
of  the  provisions  of  Expl,  IV  to  a  11,  C.  P.  C.,  and  was, 
therefore,  res  judicata 

Second    appeal  against  a  decree    of  the 
District    Court,    South  Malabar,  in   A.  8. 
No.  726  of  1921,  preferred  against  thatof.the 
Court  of  the  District  Munsif,  Alathur,  in  O 
8.  %  182  of  1920. 

MFiM.^1.  Lakshmnnd  Iyer,  for  the^Appcl- 
hint..  [I: 

Mr/  ft  V.  Ananta  Krishna  Iyer,  for  the 
RespoSwfents. 

JUl>GMENT.--The  first  objection 
taken  by  the  appellant  is  that  the  applica- 
tion to  execute  the  decree  on  behalf  of  the 
legal  representatives  of  the  decree-holder 
ought  not  to  have  been  made  to  the  Court 
which  was  executing  the  decree  but  to  the 
Court  which  passed  the  decree.  This  ques- 
tion is  concluded  by  a  decision  of  the  Full 
Bench  in  this  Court  in  Swaminatha  Ayyar 
v.  Vaidyanatha  Sastri  (1)  and  also  in  \rnar 
Chundra  Banerjee  v.  Guru  Prosunno  Muker- 
jee  (2)  and  Tameshar  Prasad  v.  Thakur 
Pr&sad  (3)  Sham  Lai  Pali  v.  Modhu  Sudan 
Sircar  (4).  All  these  cases  were  decided 
under  C.  P.  C.  of  1882  and  there  has  since 
been  an  alteration  in  ss.  88,  244,  232  and  234 
of  that  Code.  It  is  questionable  whether 
these  decisions  are  correct  under  the  new 
C.  P  C.  and  I  may  observe  that  in  the 
Full  Bench  decision  in  Madras,  the  learned 
Chief  Justice  did  not  come  to  a  determina- 
tion without  considerable  hesitation  and 
one  of  the  Judges  was  of  opinion  that  ss.  234 
and  244  of  the  Code  of  1882  are  irreconcil- 
able. As  these  sections  have  now  been 
amended,  it  is  possible  that  they  may  be 
reconciled  by  a  different  interpretation  of 

(1)  28  M,  466,  15  M.  L,  J,  116. 

(2)  27  C.  488;  14  Ind.  Dec.  (N.  s.)  321k 

(3)  25  A.  443;  A.  W.  N.  (1901)  99. 

(4)  22  0,  558;  11  Ind.  Deo,  (N,  §.)  372. 


[92  I.  0.  1926] 

them,    I,  however,  refrain  from  discussing 
this  question  further  in  view  of  the  fact 
^that  the    appeal    must    fail    on    another 
"ground. 

The  appellant  was  a  party  to  the  order 
in  execution  proceedings  in  which  the  legal 
representatives  were  added  and  although  he 
preferred  an  appeal  against  the  order,  he 
did  not  take  this  particular  ground  of  appeal 
and  the  order  was  confirmed.  Under  s.  11, 
Expl.  4  the  ground  ought  to  have  been 
decided.  It  is,  therefore,  not  open  to  hitn 
now  to  raise  the  same  objection  in  a  suit. 
It  is  contended  that  he  can  do  so,  because 
the  Executing  Court  had  no  jurisdiction  to 
decide  the  case.  It  has  been  held  that  the 
Court  had  no  jurisdiction,  but  it  is  not  a 
question  of  absolute  jurisdiction,  but  a 
question  of  exercising  jurisdiction  wrongly, 
and  it  has  been  held  that  a  similar  order 
passed  in  these  circumstances  is  subject 
to  appeal  and  is  not  necessarily  null  and 
void  from  its  inception.  I  may  refer  in  this 
connection  to  Hadjee  Abdoollah  Reasut 
Hossein  v.  Hadjee  Abdoollah  (5).  The  order 
not  being  null  and  void  from  its  inception, 
this  plea  that  it  was  absolutely  without 
jurisdiction  cannot  avail  the  appellant.  This 
suit  was  rightly  dismissed  and  the  second 
appeal  must  also  be  dismissed  with  costs. 


v.  N.  v. 

Z.  K. 
(5)  2  0.  131;    3  I.  A.  821; 

(N.  s)380  (P.O.). 


Appeal  dismissed. 
26  W.  R.  50;    1  Ind.  Dec. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

ORIGINAL  CIVIL  SUIT  No.  207  OF  1923. 

September?,  1925. 

Present: — Mr.  Raymond,  A.  J.  C. 

RATILAL  SON  OFMOOLJI— 

PLAINTIFF 

versus 
RUGHNATHMUUI  AND  OTHERS— 

DEFENDANTS. 

Hindu  Law— Joint  family — Alienation  by  manager 
—Necessity—Benefit  to  family. 

The  manager  of  a  joint  Hindu  family  has  power  to 
sell  or  mortgage  "on  reasonable  commercial  terms" 
joint  family  property,  so  as  'to  bind  the  interests  of 
adult  aa  well  as  minor  co-parceners  in  the  property, 
provided  that  in  the  case  of  minor  members  the  sale 
or  mortgage  is  made  for  legal  necessity  including 
debts  incurred  for  family  business  or  for  benefit  of  Hie 
family,  [p  383,  col  1/J 

The  term  "necessity"  must  not  be  strictjly  Construed. 
Benefit  to  the  family  may  under  certain  circumstance* 
mean  a  necessity  lor  the  transaction,  [ibid.] 


I.  0.   1»86] 


RATILAL  V,  ROGHNATfl  MDLJI. 


379 


Hunoomanperaaud  Panday  v,  Babooet  Munraj 
Koonweree,  6  M.  I.  A.  393;  18  W.  R.  81n;  Sevestre 
253n;  2  Suth.  P.  C.  J.  29;  1  Sar.  P.  0.  J.  552;  19  E.  R 
H7,  Nagindas  Maneklal  v.  Mahomad  Yusaif  Mitchela, 
64  Ind.  Caa.  923;  46  B.  312;  23  Bom.  L.  R  1091;  (1922) 
A.  I.  R.  (B  )  122,  Tula  Ram  v.  Tulshi  Ram,  60  Ind 
Cas.  3;  42  A.  559;  18  A.  L.  J.  699  and  Ram  Bilas 
Singh  \.  Ramyad  Singh,  58  Ind.  Gas.  303;  5  P.  L.  J. 
622;  1  P.  L.  T.  535;  2  U.  P.  L.  R.  (Pat.)  228,  relied 
upon. 

Vishnu  Vishvanath  Nimkar  v.  Ramchandra  Sadashiv 
Nimkar,  73  Ind.  Cas.  1017;  25  Bom.  L.  R.  508;  (1923) 
A.  I.  R.  (B.)  453  and  Shankar  Sahi  v  Baichu  Ram,  86 
Ind,  Cas.  769;  47  A  381;  23  A.  L.  J.  204;  L  R.  6  A, 
214  Civ.;  (1925)  A.  L  R.  (A.)  333,  distinguished. 

Mr.  Kimatrai  Bhojraj,  for  the  Plaintiff. 

Mr,  Fatehchand  Assudamal,  for  Defend- 
ant No.  3. 

JUDGMENT.—  This  is  one  of  the  class 
of  suits  not  unfrequent  of  late  wherein 
minors  in  a  joint  Hindu  family  seek  to  set 
aside  alienations  of  immoveable  properties, 
made  either  by  the  father  or  the  managing 
member  of  the  family,  as  unsupported 
by  family  or  legal  necessity.  The  present 
suit  has  been  filed  by  one  Batilal,  a  minor, 
through  his  next  friend,  his  mother,  Parvati- 
bai,  widow  of  Moolji,  for  a  declaration  and 
injunction,  and  for  partition  of  two  im- 
moveable properties  wherein  the  plaintiff 
states  he  is  interested  as  a  co-parcener  in 
a  joint  undivided  Hindu  family.  Defend- 
ants Nos.  1  and  2  Rughnath  and  Bhagwanji 
are  the  two  elder  brothers  of  the  minor 
plaintiff.  They  have  filed  no  written  state- 
ments, and  have  raised  no  defence  to  the 
action,  and  there  is  but  little  doubt  that  this 
suit  has  been  filed  either  at  their  instigation 
or  that  they  are  in  collusion  with  the  plaint- 
iff. The  only  defence  to  the  action  is  by 
defendant  No.  3  who  is  the  mortgagee  of 
the  two  immoveable  properties  in  suit  which 
by  the  suit  are  sought  to  be  partitioned. 

The  allegations  in  the  plaint  are  that  one 
Moolji,  the  father  of  the  plaintiff  and  defend- 
ants Nos.  1  and  2  died  in  1915,  and  left 
one  immoveable  property  with  building 
thereon  situated  in  theRunchore  Lines,  and 
which  is  referred  to  in  the  evidence  as  the 
residential  house  of  the  family.  About  a 
year  or  two  after  the  death  of  Moolji,  de- 
fendants Nos.  1  and  2  bought  a  building 
adjacent  to  the  residential  house.  They 
were  under  the  necessity  of  raising  money 
for  the  payment  of  the  purchase  price,  and 
accordingly  borrowed  a  sum  of  Rs.  11,500 
from  defendants  No.  3  on  the  security  of 
the  mortgage  of  both  the  residential  house 
and  the  new  building  subsequently  pur- 
chased. Owing  to  non  payment  of  the 
amount  there  were  disputes  between  defend- 


ants  Nos.  1  and  2  on  the  one  hand,  and  de- 
fendant No.  3  on  the  other  with  the  result 
that  there  was  a  reference  to  arbitration, 
and  a  consent  award  was  passed  and  made 
a  rule  of  the  Court.  The  plaintiff  contends 
that  defendants  Nos.  1  and  2  were  not  em- 
powered either  to  mortgage  the  property  in 
its  entirety  to  defendant  No.  3  or  consent  to 
an  award  decree  in  his  favour  inasmuch  as 
the  loan  taken  from  defendant  No.  3  was 
neither  for  the  family  benefit  nor  for  legal 
necessity,  and,  therefore,  both  the  mortgage 
and  the  award  decree  are  void  and  inopera- 
tive so  far  as  his  interests  in  the  properties 
are  concerned.  On  the  strength  of  the 
award  decree  defendant  No.  3  applied  for 
attachment  and  sale  of  the  two  properties  on 
which  his  lien  had  been  declaied,  and  the 
plaintiff  now  seeks  for  an  injunction  to 
restrain  him  from  proceeding  with  the  sale. 
He  also  prays  for  a  declaration  that  neither 
the  mortgage  nor  the  awaid  decree  is 
effectual  to  transfer  his  interest  in  the  pro- 
perties, and  finally  prays  for  a  partition  of 
the  two  properties,  and  being  awarded  his 
one-third  share  in  them, 

By  his  written  statement  the  defendant 
No.  3  states  that  defendants  Nos.  1  and  2 
are  the  only  persons  interested  in  the  pro- 
perties mortgaged,  and  in  the  alternative, 
if  it  be  held,  that  plaintiff  No.  1  has  an  in- 
terest in  them,  the  action  of  defendants  Nos. 
1  and  2,  the  former  being  the  manager  of 
the  joint  family,  is  binding  upon  the  plaint- 
iff He  maintains  that,  the  amount  borrow- 
ed from  him  was  for  the  benefit  of  the  fami- 
ly, and  that  it  was  utilised  to  pay  antece- 
dent debts  and  for  house-hold  purposes.  He 
adds  that  the  decree  obtained  by  defendant 
No.  3  is  binding  on  the  plaintiff  and  that  in 
this  suit  the  plaintiff  is  incompetent  to  have 
it  set  aside.  He,  therefore,  prays  that  the 
plaintiff's  suit  be  dismissed  with  costs. 

The  following  issues  were  framed  with 
the  consent  of  the  Pleaders  for  the  respect- 
ive parties: — 

1.  Is  the  property  in  suit  the  joint  fami- 
ly property  of  the  plaintiff  and  defendants 
Nos.  1  and  2  or  the  property  of  defendants 
Nos,  1  and  2 only? 

2.  Was  the  amount  borrowed   from  de- 
fendant No.  3   for  purposes  which    would 
bind  the  interest  of  the  plaintiff,  if  any,    in 
the  property   (covers  paras.  3  and  4  of  the 
plaint). 

3.  Is    the  plaintiff  bound  by  the  award  ? 

4.  General* 


880 


IUTILAL  V.  RT70HNATH  MCTLJI. 


At  the  commencement  of  the  hearing  of 
the  case,  the  Pleader  for  the  plaintiff  stated 
that  he  would  not  press  the  plaintiff's  claim 
to  any  share  in  the  immoveable  property 
purchased  by  defendants  Nos.  1  and  2  after 
the  death  of  their  father  Moolji  I,  there- 
fore, confine  myself  to  the  consideration  of 
the  question  as  to  the  plaintiff's  right  in 
the  residential  house. 

Now,  before  I  touch  upon  the  legal  aspect 
of  the  case  it  is  a  matter  of  essential  import- 
ance to  grasp  the  facts  and  set  out  my  de- 
ductions on  the  evidence  recorded.  For,  in 
cases  of  this  naturo  where  the  family  benefit 
or  the  legal  necessity  are  challenged,  it  is 
necessary,  before  the  law  applicable  is  dis- 
cussed, to  have  a  true  conception  as  to  the 
merits  of  each  case. 

Moolji,  the  father  of  the  plaintiff  and  de- 
fendants Nos.  1  and  2  died  in  Africa  in  1915. 
The  evidence  shows  that  at  the  time  of  his 
death,  and  for  some  years  previous  he  was 
earning  '  a    salary   of    about  Rs,  250  per 
mensem.     He   died,  however,    virtually    a 
jnupefr,  find  the  only  property  that  he  left 
nt  hi* 'death,  in  addition  to  the  residential 
house,  was    a    sum  of  Rs.  600    only,  his 
contribution  from  certain  funds  to  which 
he  had  subscribed    in    his  life-time.    As 
Bhagwanji  said  in  his  evidence  it  was  diffi- 
cult for  his  father  to  save  any  money  as  he 
had  a  large  family  dependent  upon  his  earn- 
ings.    Moolji  must  have  also  spent  money 
on  the  education  of  defendants  Nos.  1  and  2. 
Defendant  No.  2  appeared  to  me  to  speak 
English  fairly  well,  and  at  present  accord- 
ing to  him  he   draws  a  salary  of  Rs.   105 
in  the  National  Bank,  but  at  the  time  of  his 
father's  death,  he  was  schooling.  Rughnath, 
defendant  No.  1,  is  employed  in   the  Port 
Trust,  and  earns  about    Rs.  70   or  Rs.    80 
per  mensem,   now,  though  at  the  time  of  his 
father's  death  his  salary  was  about  Rs.  30 
or  40    per  mensem.    The    pecuniary  con- 
dition of  the  family,  therefore,  at  the  time 
of  Moolji's  death  is  a  matter  of  no  little  im- 
portance in  the  consideration  of  this  case. 
As  long  as  Moolji  was  alive,  the  family  ap- 
parently enjoyed   some  degree  of  comfort 
and  to  which  the  family  had  been  accustom- 
ed.   But  after  Moolji's  death,    the     pinch 
of  poverty  was  felt,  and  the  meagre  income 
of  defendant  No.  1  was  insufficient  to  defray 
the    household  expenses  of  the  family.    I 
shall  revert  to,  later,   the  necessity  which 
rendered  some  loan  imperative. 

On  behalf  cf  the  plaintiff  it  has-been 
urged  that  the  necessity  for  the  loan  was 


[92  I.  0. 1926] 

dictated  by  the  conduct  of  defendant  No.  ] 
indulging  in  speculation.    It  is  said   thai 
in  or  about  the  year  1916  defendant  No.  J 
entered    into  some  forward  contracts     in 
sugar  in  partnership  with  one  Ladhuram 
Vishinji  and  sustained  a  loss  of  Rs.  3,00^' 
and  for  the  purpose  of  liquidating  it  a  sum 
of  Rs. -2,000    was  borrowed  from  one  Haji 
Ahmad  Yusif,  and  as  security  for  the  loan, 
the  residential  house  was    mortgaged  with 
him.    In  my  experience  it  occurs  not  un- 
often  that  in  cases  of  this  description  the 
plea  that  the  debts   were  incurred  for  an 
illegal  or    immoral   purpose  is  set  up  in 
order  to  impeach  the  binding  effect    of    a 
loan  on  the  members  of  a  Hindu  family  who 
have  not  effectively  participated   in  it.  In 
the  present  case  on  a  consideration  of  the 
evidence,  I  find  that   this  forward   transac- 
tion in  sugar  imputed  to  defendant-  No    1, 
Rughnath,  is  a  myth,  and  that  it  has  been 
set  up  for  the  purpose  of  cloaking  the  real 
nature  of  the  borrowings    by  defendants 
Nos.  1  ami  2.     The  evidence   on  the   point 
that    Rughnath  had    been    speculating  in 
sugar    is    confined      to   himself    and    his 
brother,  defendant  No  2.    It  was  the  latter 
that  was  first  examined  on     the  opening 
day  of    the    hearing   of  the  case.     When 
questioned,      as     to     the      forward      con- 
tracts entered  into  by  his  brother,  he  pro- 
fessed   not    to    be    acquainted    with  any 
details  in  respect  of  them  ;  as  a  matter  of 
fact,  he  had  no  knowledge  even  as  to  the 
nature    of  the  contract,  whether  it  was  a 
forward  contract  or  otherwise,  and  all  that 
he  knew  was  from  Rughnath's  information 
that  he  had    entered  into    some  contracts 
in  partnership  with  Ladhuram  Vishinji  and 
had    sustained  a  loss  of  Rs.   3,000.    Rugh- 
nath,  who  was    examined  as  a  witness  a 
couple    of  days  after  his  brother's  evidence 
had  been  recorded,  stated  that  in  1916  he 
had  proceeded  to  Tando  Allah  Yar  where 
Ladharam  Vishinji  lived,  and  that  the  latter 
proposed  to  him  that  they  should  be  part- 
ners   in  some  good  business  transactions. 
Rughnath  says  he  agreed   to  the  proposal 
and  also  to  share  the  profit  and  loss  with 
Ladharam.    According  to  Rughnath  howev- 
er he  heard  .no  more    of  this  partnership 
transactions  till  he  proceeded    to    Bombay 
in  May  or  June  1918  and  met  Ladharam 
Vishinji.    The  latter  informed  him  that  he 
had  entered    into  a  sugar  transaction  in 
pursuance  of  the  alleged  partnership  agree- 
ment and  had  sustained  a  loss  of  Rs.  6,000 
pf    which  a   moiety   was  to  be  paid    by 


[92  I.  0. 1926] 


KATILAL  V.  RUGHNATH  MDLJI. 


381 


Rughnath.  Rughnath  says  that  he  trusted 
Ladharam  Vishinji  implicitly,  and  agreed 
to  p&y  him  his  share  of  Rs.  3,000  which 
he  did.  The  Pleader  for  defendant  No.  3 
described  this  forward  contract  as  bogus, 
and  I  am  inclined  to  agree  with  him.  The 
only  evidence  as  to  the  partnership  between 
Rughnath  and  Ladharam  Vishinji  is  the 
oral,  uncorroborated  statement  of  Rughnath. 
Ladharam  Vishinji,  has  not  been  cited  as 
a  witness  to  prove  the  partnership,  nor  is 
there  any  documentary  evidence  forthcom- 
ing as  to  it.  The  family  of  defendants  Nos.  1 
and  2  was  in  very  impoverished  circum- 
stances after  the  death  of  Moolji,  and  it  is 
incredible  that  Rughnath  should  promptly 
undertake  to  pay  a  large  sum  like  Rs.  3,000 
to  Ladharam  Vishinji  without  the 
slightest  attempt  at  any  inquiry  into  the 
account  or  as  to  the  circumstances  which 
entailed  a  loss.  In  my  opinion  the  alleged 
loss  of  Rs.  3,000  on  a  speculative  con- 
tract entered  into  by  Rughnath  has  been 
falsely  set  up  with  the  view  to  proving 
the  immoral  nature  of  the  contracts  entered 
into  by  him,  and  hence  the  exemption  of 
all  liability  on  the'part  of  the  minor  plaint- 
iff in  respect  of  such  a  tainted  debt. 

Now,  further  according  to  Rughnath,  he 
borrowed  a  sum  of  Rs.  2,000  from  Haji 
Ahmed  Yusif  and  paid  the  same  to  Ladha- 
ram Vishinji  towards  the  loss.  The  re- 
maining sum  of  Rs.  1,000  Rughnath  at 
first  said  that  it  was  borrowed  from  Manik- 
chand  on  the  pledge  of  ornaments,  but  he 
soon  altered  his  statement  and  said  that 
he  borrowed  Rs.  2,000  from  one  Gangji 
Seth  on  the  pledge  of  ornaments  which 
amount  he  paid  to  Ladharam  Vishinji 
and  that  the  sum  of  Rs.  2,COO  which  he 
borrowed  from  Haji  Ahmed  Yusif  he  paid 
to  Gangji  Seth  and  redeemed  his  orna- 
ments. There  is  thus  no  satisfactoiy  ex- 
planation as  to  the  payment  of  the  balance 
of  Rs.  1,000  to  Ladharam  Vishinji,  and 
this  is  an  additional  element  which  throws 
considerable  suspicion  on  the  alleged  debt 
due  to  Ladharam  Vishinji. 

That  there  was  a  sum  of  Rs.  2,(  00 
borrowed  from  Haji  Ahmed  Yusif  in  1916, 
and  that  the  residential  house  had  been 
mortgaged  with  him  in  consideration  of 
this  loan  admit  of  no  doubt  but  I  do  not 
believe  that  this  amount  of  Rs  2,000  was 
utilised  towards,  the  payment  of  a  sum  of 
Rs.  3,000  which  ic  is  alleged  Ladharam 
Vishinji  claimed.  Rughnath  in  his  evidence 
has  stated  that  before  he  proceeded  to 


Bombay,  and  when  Ladharam  Vishinji  for 
the  fii&t  time  mentioned  to  him  that  there 
was  a  sum  of  Rs.  3,000  due  by  him  on  the 
losses  sustained  by  the  partnership  con- 
tract, he  had  borrowed  a  sumofRs.  1,600 
or  1,700  from  one  Chaganlal  Inderji.  His 
evidence  on  this  point  is  as  follows  :  — 

"  Before  going  to  Bombay  I  borrowed 
from  Chaganlal  Inderji  the  sum  of 
Rs.  1,600  or  1,700  to  liquidate  my  debts.  I 
do  not  remember  how  those  debts  had  been 
created.  It  may  be  that  this  amount  had 
been  borrowed  from  Chaganlal  to  pay  the 
household  expenses,  as  our  salaries  were 
smair. 

This  statement  of  Rughnath  appears  to 
me  to  supply  the  correct  solution  of  the 
loan  from  Haji  Ahmed  Yusif.  As  I  have 
observed  above,  after  the  death  of  Moolji, 
the  family  were  substantially  inan  impecuni- 
ous condition.  It  was  only  Rughnath  that 
earned  a  scanty  pittance  of  Rs.  25  or  30 
per  mensem  and  Bhagwanji  states  that  he 
was  still  at  school  when  his  father  died.  It 
was  impossible  for  the  family  to  subsist  on 
their  slender  income  which,  therefore,  had 
to  be  supplemented  by  loans.  These  loans 
were  first  secured  on  the  pledge  of  the 
family  ornaments  and  the  amount  at  first 
borrowed  from  Haji  Ahmed  Yusif  which 
was  as  I  have  said  on  the  mortgage  of  the 
residential  house,  was  utilised  towards  the 
payment  of  the  moneys  borrowed  for  the 
household  expenses,  and  the  family  orna- 
ments were  thus  redeemed.  I  hold,  there- 
fore, that  the  sum  of  Rs.  2,000  borrowed 
from  Haji  Ahmed  Yusif  was  for  family 
necessity. 

Now,  in  1918,  the  second  house  in  suit 
was  purchased  by  defendants  Nos.  1  and  2 
in  the  name  of  defendant  No.  2.  This 
house  was  adjacent  to  the  residential  house 
and  its  owner  Ladharam  Dharamsi  was  a 
relation  of  the  defendants.  From  Rugh- 
nath's  evidence  it  appears  that  he  was  very 
keen  on  the  purchase  of  this  house.  From 
Karachi  he  proceeded  to  Han  jam  in  Berar 
and  concluded  the  bargain  there  with 
Ladharam  Dharamsin  for  the  purchase  of 
the  house  for  the  sum  of  Rs.  8,300.  It  is 
significant  to  observe  that  defendants  Nos. 
1  and  2  were  eager  to  secure  this  house  for 
themselves  not  on  account  of  its  situation 
but  as  Bhagwanji  said  the  purchase  price 
was  low,  and  they  anticipated  that  owing 
to  the  boon  in  land  that  then  prevailed  in 
1918,  they  would  be  in  a  position  to  realise 
it  considerable  profit  by  its  sale  and  thus 


382 


RATILiL  V.  ImaflNAtH  MULJI. 


[92  1.  0. 


discharge  the  family  debt  that  weighed 
heavily  on  it.  Again,  they  had  recourse  to 
Haji  Ahmed  Yusif,  and  borrowed  a  sum  of 
Rs.  #,000  from  him  on  the  security  of  both 
the  residential  house  and  the  house  newly 
acquired.  It  is  important,  therefore,  not  to 
overlook  the  motive  inspiring  the  purchase 
of  the  second  house. 

Haji  Ahmed  Yusif,  had  advanced  to  de- 
fendants Nos.  1  and  2  a  sum  of  Rs.  10,000 
which  with  interest  due  thereon  amounted 
to  about  Rs.  10,700.  He  pressed  for  the 
re-payment  of  this  loan  as  he  was  in  urgent 
need  of  money,  and  the  defendants  Nos.  1 
and  2  then  appealed  to  Ibrahim  Walli  to 
help  them  with  a  loan.  The  loan  was  first 
granted  on  hundis,  defendants  equitably 
inoidratrinif  with  Ibrahim  Walli  the  title 
d<»i  i  of" IMC  two  properties,  The  loan  from 
Ibrahim  Walli  was  utilised  in  the  payment 
of  the  amount  due  to  Haji  Ahmed  Yusif 
and  the  mortgaged  properties  were  re- 
deemed. As  the  amount  due  on  the  hundis 
was  not  paid  to  Ibrahim  Walli  by  the  due 
date,  fresh  hundis  were  drawn  and  executed, 
and  finally,  a  mortgage-deed  was  executed 
in  favour  of  Ibrahim  Walli  on  August  21st 
1920  by  the  two  defendants,  Rughnath 
defendant  No  1  executing  it  for  himself 
and  as  guardian  for  his  minor  brother 
Ratilal.  The  consideration  in  the  mortgage- 
deed  is  shown  at  Rs.  12,000,  R9  8.0CO 
being  the  amount  due  on  the  hundis  pre- 
viously executed  and  Rs.  4,000  was  a  fresh 
loan  advanced  to  defendants  Nos.  1  and  2. 
By  thU  deed  the  two  immoveable  properties 
above  described  were  mortgaged  with  de- 
fendant No.  3  as  security  for  the  aforesaid 
loan  of  Rs.  12,000.  Exhibit  9  are  a 
batch  of  four  letters  addressed  by  defend- 
ants Nos.  1  and  2  to  defendant  No.  3  equit- 
ably mortgaging  with  him  the  two  aforesaid 
properties  in  consideration  of  the  loans 
advanced  on  various  occasions.  All  these 
four  letters  have  been  signed  by  defend- 
ants Nos.  1  and  2,  and  the  defendant 
No.  1  has  also  signed  them  as  guardian 
for  the  minor  plaintiff.  I  may  here  observe 
that  defendants  Nos.  1  and  2  have  not 
challanged  the  accuracy  of  the  principal  sum 
which  defendant  No.  3  claimed  from  them. 
Exhibit  10  is  the  consent  awar.d  between 
defendants  Nos.  1  and  2  and  defendant 
No.  3  and  was  passed  on  April  20,  1922. 
It  would  appear  from  the  award  that  the 
amount  due  to  the  defendant  No.  3  was 
not  paid  in  terms  of  the  agreement  between 
the  parties,  and  further,  there  was  a  dis- 


pute  with  regard  to  the  rate  of  interest  18 
per  cent,  claimed  by  defendant  No.  3,  where- 
as the  defendants  Nos.  1  and  2  contended 
that  the  interest  due  was  only  at  the  rate 
of  15  per  cent.  Defendants  Nos.  1  and  2 
also  contended  that  they  were  entitled  to 
sufficient  time  for  payment  of  the  amount 
due.  When  the  proceedings  were  still 
pending  before  the  arbitrators,  the  parties 
entered  into  an  amicable  arrangement 
which  is  embodied  in  the  award,  and  in 
terms  of  this  arrangement  interest  was 
allowed  to  defendant  No.  3  at  the  rate 
of  15  per  cent,  only  and  the  amount  due 
was  payable  in  certain  instalments,  and 
a  mortgage  lien  was  granted  to  defendant 
No.  3  with  a  right  to  proceed  in  execu- 
tion against  the  aforesaid  immoveable  pro- 
perty and  also  to  proceed  personally 
against  defendants  Nos.  1  and  2,  if  the 
realisation  by  the  sale  of  the  mortgage 
properties  did  not  cover  the  amount  due. 
The  reference  to  the  arbitrator  was  signed 
both  by  Rughnath  and  Bhagwanji  the 
former  signing  it  both  for  himself  and  as 
guardian  of  the  minor  plaintiff.  The  award 
was  filed  in  Court  under  the  Indian  Arbitra- 
tion Act  and  nu  objections  have  ever  been 
lodged  to  it. 

I  now  proceed  to  discuss  the  legal  aspect 
of  the  cage,  as  it  has  been  contended  for  the 
plaintiff  by  his  Pleader  Mr.  Kimatrai,  that 
the  plaintiff  is  not  bound  by  the  loan  trans- 
actions entered  into  by  his  brothers  defend- 
ants Nos.  1  and  2,  as  the  loans  were  neither 
for  the  benefit  of  the  family  nor  for  legal 
necessity.  There  is  no  doubt  that  defend- 
ant No.  2  Rughnath,  the  elder  brother,  was 
the  manager  of  the  family  consisting  of  the 
plaintiff  and  defendants  Nos.  1  and  2. 
Bhagwanji  has  admitted  this.  It  was  first 
contended  by  Mr.  Kimatrai  that  as  the  sum 
of  Rfl.  2,000  borrowed  from  Haji  Ahmed 
Yusif  was  for  the  purpose  of  liquidating 
an  antecedent  immoral  debt,  contracted  by 
Rughnath  in  respect  of  some  satta  transac- 
tions that  he  entered  into,  which  entailed  a 
loss  of  Rs.  3,000  the  loan  from  Haji 
Ahmed  Yusif  cannot  be  regarded  as  one 
for  the  benefit  of  the  family  or  as  creating 
a  legal  necessity.  As  I  have  shown  above, 
it  has  not  been  proved  that  Rughnath  did 
enter  into  any  partnership  with  Ladharam 
Vishinji.  Nor  has  it  been  established  that 
any  loss  was  incurred  by  the  partnership 
entering  into  any  forward  contracts,  nor  is 
there  any  satisfactory  evidence  as  to  the 
payment  of  the  eum  of  Re,  3,000  to 


I.  0.  1928J 


RATILAL  V,  RUQHKATH  MULJt. 


$83 


Ladharam  Vishinji.  This  argument  must 
fail  I  hold  that  the  sum  of  Rs.  2,000 
borrowed  from  Haji  Ahmad  Yueif  was  for 
the  purpose  of  paying  the  debt  of  Chaganlal 
Inderji  which  had  been  incurred  to  defray 
household  expenses,  and  as  the  debt  was 
contracted  for  the  benefit  of  the  family  by 
its  manager,  it  is,  therefore,  binding  on  the 
minor  plaintiff, 

The  second  point  taken  by  Mr.  Kimatrai  for 
the  plaintiff  was  -that  the  sum  of  Rs.  8000 
borrowed  from  Haji  Ahmed  Yusif  and 
utilised  towards  the  payment  of  the  purchase 
price  of  the  second  house  cannot  be  re- 
garded as  a  debt  for  the  family  benefit  or 
as  creating  any  legal  necessity  for  the 
loan. 

In  Hunoomanpersaud  Pandey  v.  Babooee 
Mumraj  Koonweree  (1)  their  Lordships  of 
the  Privy  Council  observed  as  follows  :  — 

"The  power  of  the  manager  for  an  infant 
heir  to  charge  an,  estate  not  his  own  is, 
under  the  Hindu  Law,  a  limited  and  qualifi- 
ed power.  It  can  only  be  exercised  rightly 
in  case  of  need,  or  for  the  benefit  of  the 
estate.  But  where,  in  the  particular  instance, 
the  charge  is  one  that  a  prudent  owner 
would  make,  in  order  to  benefit  the  estate, 
the  bona  fide  lender  is  not  affected  by  the 
precedent  mismanagement  of  the  estate. 
The  actual  pressure  on  the  estate,  the  danger 
to  be  averted,  or  the  benefit  to  be  conferred 
upon  it...  is  the  thing  to  be  regarded". 

In  Mull's  Hindu  Law,  Art.  200,  the  follow- 
ing passage  occurs  :  — 

"The  manager  of  a  joint  Hindu  family 
has  power  to  sell  or  to  n,i  ,r!tfaijy  'on  reason- 
able commercial  terms'  joint  family  property, 
so  as  to  bind  the  interests  of  adult  as  well 
as  minor  co-parceners  in  the  property, 
provided  that  in  the  case  of  minor  members 
the  sale  or  mortgage  is  made  for  a  legal 
necessity  including  debts  incurred  for  fami- 
ly business,  or  for  the  benefit  of  the  fami- 

ly." 

In  Nagindas  Maneklal  v.  Mahomad  Yusif 
Mitchella  (2)  it  was  held  by  Shah,  J  ,  that: 

"The  term  'necessity*  must  not  be  strict- 
ly construed.  The  benefit  to  the  family 
may  under  certain  circumstances  mean  a 
necessity  for  the  transaction/* 

The  fact*  of  this  case  throw  some  light 
on  the  consideration  of  the  present  case  :  — 

"A   Hindu  joint  family    owned    several 

(1)  6  M.  I.  A.  393;  18  W,  R,  81n;  Sewslre  253n;  2 
Suth.  P.  0.  J.  29;  1  tfar.  P.  Q.  J,  552;  19  E.  R.  147. 

(3)  64  Ind.  Gas.  923;  46  B,  312;  23  Bom  L,  R,  1094; 
U922)  A,  L  R.  (B.)  122, 


houses,  one  of  which  was  in  such  a  dilapidat- 
ed condition  that  the  Municipality  requiied 
it  to  be  pulled  down.  The  adult  co- parceners 
contracted  to  sell  it  to  the  plaintiffs.  The 
joint  family  was  in  fairly  good  circum- 
stances ;  and  it  was  not  necessary  to  sell 
the  house.  But  the  house  could  not  be 
used  by  the  family  for  residence  and 
would  not  have  fetched  any  rent.  The 
plaintiff  having  sued  for  specific  perform- 
ance of  the  agreement  to  sell,  the  minor  co- 
parceners contended  that  the  contract  did 
not  affect  their  interest  in  the  absence  of 
'necessity'  for  the  sale.  It  was  held  that 
the  agreement  of  sale  was  binding  on  the 
minor  co-paiceners,  because  the  adult  co- 
parceners had  properly  and  wisely  decided 
to  get  rid  of  the  property  which  was  in  such 
a  state  as  to  be  a  burden  to  the  family.1' 

No  doubt  this  was  a  case  of  sale,  but  the 
Privy  Council  has  held  that  the  same  prin- 
ciple would  also  apply  to  cases  of  mortgage, 
Cases  may  arise  wherein  a  prudent  owner 
with  due  regard  to  the  interests  of  the 
family  which  he  represents  might  feel  com- 
pelled to  resort  to  methods  which  would 
have  the  effect  not  only  of  re-habitilating 
the  fortune  of  the  family,  but  also  of 
supplementing  its  income.  What  was  the 
motive  for  the  purchase  of  the  second  house 
in  this  case  ?  Bhagwanji  had  supplied  the 
answer.  He  stated  that  it  was  anticipated 
that  a  substantial  profit  would  be  realised 
by  its  sale.  The  family  was  undoubtedly 
in  debt  at  the  time  cf  the  purchase.  There 
was  no  possibility  of  wiping  off  this  debt 
from  the  incomes  of  the  two  brothers,  and 
the  sum  of  Ks>  2,000  due  to  Haji  Ahmad 
Yusif  which  carried  interest  at  12  per  cent, 
per  annum  would  accumulate  to  such  an 
extent  as  to  make  its  liquidation  impossible 
for  the  family.  It  was,  therefore,  necessary 
to  conceive  some  mode  or  the  other  of  pay- 
ing off  this  debt.  In  1918  there  was  a 
boon  in  land  in  Karachi  as  is  well  known 
the  second  house  was  being  obtained  at 
a  xCost  fairly  low,  and  a  prudent  and 
reasonable  man  might  well  conclude  that 
an  opportunity  was  now  offered  to  him  of 
realising  a  handsome  profit  on  the  sale  of 
the  house  after  its  purchase  and  it  would  be 
for  the  benefit  of  the  family  to  embark  on 
this  investment.  In  my  opinion,  therefore, 
the  purchase  of  this  house  was  dictated  by 
the  motive  to  liquidate  the  debts  due  by  the 
family  and  hence  was  for  the  family  benefit 
In  Tula  Ram  v.  Tulshi  Raw  (3)  the  loan 
(3)  80  Ind.  Gas,  3;  42  A.  559;  18  A.  L,  J.699. 


V.  RWRNATH  MtTLJt. 


.  1986  1 


advanced  by  the  mortgagee  was  for  the 
purpose  of  enabling  the  mortgagors  in 
a  joint  Hindu  family  to  purchase  some 
zemirtdari  property,  though  ultimately  it 
was  found  that  the  loan  was  not  utilised 
for  the  purpose  indicated  :  It  was  held 
that  as  the  purchase  of  the  zemindari  was 
beneficial  to  the  family,  the  non-applica- 
tion of  the  loan  to  the  purpose  originally 
stated  did  not  invalidate  the  mortgage. 
This  case  affords  an  illustration  that  even 
the  purchase  of  immoveable  property  may 
well  be  reckoned  as  contributing  to  the 
benefit  of  a  Hindu  joint  family. 

Mr.  Kimatrai  referred  to  the  case  of 
Vishnu  Vishvanath  Nimkar  v.  Ramchandra 
Sadashiv  Nimkar  (4)  but  the  facts  of  this 
case  are  divergent  in  their  essentials  from 
the  facts  of  the  case  before  me.  It  was  held 
in  the  case  cited  : — 

"That  the  manager  of  a  joint  Hindu 
family  can  justify  the  sale  of  joint  family 
property  only  for  necessity.  He  cannot 
justify  it  merely  on  the  ground  that  the 
sale  at  the  time  appeared  to  be  advanta- 
geous. Such  a  sale  is  not  binding  on  the 
minor  co-parceners". 

The  property  in  the  present  case  had 
not  been  purchased  merely  because  the 
purchase  was  •;  3-.  ••.! ..;  ,-  it  was  bought, 
as  I  have  observed,  to  liquidate  a  family 
debt,  and  this  was  a  necessity. 

Mr,  Kimatrai  next  cited  the  case  of 
Shankar  Sahi  v.  Baichu  Ram  (5).  In  this 
case  it  was  held  that  ordinarily  a  Hindu 
father  cannot  encumber  joint  ancestral 
property  to  acquire  the  necessary  funds  to 
pre-empt  other  property.  In  the  boay  of 
the  judgment  at  page  383*  there  occur  the 
following  observations : — 

"It  is  not  permissible  to  a  Hindu  father 
to  voluntarily  go  forward  and  initiate 
litigation  for  the  purposes  of  extending  the 
boundaries  of  his  property,  and  having 
succeeded  in  that  litigation  and  having 
obtained  a  pre-emption  decree,  which  gives 
him  liberty  to  do  something,  can  therebj7 
raise  money,  and  encumber  the  joint... 
family  estate11. 

It  will  be  seen  from  the  case  cited  that 
this  was  a  voluntary  action  on  the  part  of 
the  father  not  dictated  by  the  necessities 
of  the  family.  It  was  further  observed  in 
thia  judgment:  "that  an  adventure  in  the 

(4)  73  Ind.  Gas.  1017;  25  Bom.  L.  R.  508;  (1923)  A,  I. 
R.  (B.)  453. 

(5)  86  Ind.  Gas.  769;  47  A.  381;  23  A.  L.  J.  204;  L. 
R.  6  A.  214  Civ.;  (1925)  A.  I.  R.  (A.)  333. 

'  *pageof  47  A—  [Ed.] 


hape  of  a  speculative  suit  which  might 
possibly  bring  profit  to  the  estate,  could 
properly  be  regarded  as  a  *  benefit  to  the 
estate1  or  '  a  legal  necessity1.11 

That  facts  of  the  present  case  are  entirely 
different.  At  the  time  the  second  house 
was  purchased,  there  was  a  sum  of 
Rs.  2,000  due  by  the  family  of  defendants 
Nos  1  and  2  to  Haji  Ahmed  Yusif,  and  in 
respect  of  this  loan  the  ancestral  property 
was  mortgaged  with  him.  Apart  from  the 
stigma  that  the  mortgage  of  the  residential 
house  carried  with  it,  it  became  essential 
to  pay  up  this  loan,  and  redeem  the  mort- 
gaged property  promptly,  for  otherwise 
with  the  interest  of  12  per  cent,  accumulat- 
ing on  the  principal  sum,  the  family  would 
have  been  unable  to  redeem  the  house. 
The  second  house  was,  therefore,  purchased, 
as  Bhag  wan  ji.  says,  to  liquidate  the  family 
debt  that  had  been  incurred.  It  was  not 
a  case  of  a  mere  speculative  adventure,  for 
it  was  reasonably  anticipated  that  the 
house  would  realise  a  profit  by  its  sale,  and 
any  prudent  man,  whether  the  father  or 
the  manager  of  a  Hindu  family,  would 
avail  himself  of  the  opportunity  offered  to 
him  of  contriving  to  wipe  off  the  family 
debt. 

Ram  Bilas  Singh  v.  Ramyad  Singh  (6), 
was  cited  by  Mr.  Kimatrai  apparently  with 
reference  to  the  following  passage  :  — 

"  The  mere  fact  that  the  manager  borrow- 
ed money  in  order  to  purchase  immoveable 
property  does  not  in  itself  create  any 
presumption  that  the  transaction  was  bene- 
ficial to  the  family  so  as  to  authorise  the 
manager  to  hypothecate  existing  family 
property  by  way  of  security  for  the  loan. 
Some  necessity  for  the  transaction  or  some 
benefit  resulting  to  the  family  therefrom 
must  in  all  cases  be  shown1'. 

I  am  in  entire  agreement  with  these 
observations,  and,  in  my  opinion,  they 
rather  tend  to  support  my  view  of  this 
case.  In  the  present  case  the  necessity  for 
the  purchase  of  the  second  house  has  been 
established  and  it  has  been  shown  on  the 
admission  of  defendants  Nos.  1  and  2  them- 
selves that  the  purchase  was  for  the  benefit 
of  the  family. 

In  view-  of  my  conclusions  that  the 
sum  of  Rs.  2,000  first  borrowed  from  Haji 
Ahmed  Yusif  ^  was  for  the  benefit  of  the 
joint  family,  and  the  second  sum  of 

(6)  58  Ind.  Gas.  303;  5  P.  L.  J,  622;  1  P.  L.  T.  535;  2 
U.  P.  L.  R.  (Pat.)  228. 


0.  1926]  RUSRAPPA  t>. 

Be.  8,000    borrowed   from  the     same  in- 
dividual, utilised  towards  paying  the  pur- 
chase price  of    the  house  purchased  was 
dictated  by  the  family  necessities,  the  ques- 
tioa   whether  Ibrahim    Walli    made    the 
requisite  inquiries  as  to  the    necessity  of 
ths  loau  from  him    is  not  one  of  any  parti* 
significance,    No  doubt,  a  purchaser 
a  mortgagee    mu£t   make    reasonable 
fmicy,  when  he  advances  a  loan  to  the 
latter  or  tfee  manager  o>f  a  joint  undivided 
family  as  to*  the  necessity  for  the  loan,  and 
tibte  burden  lies  upon  him   to  do  so.    Mere 
iteffiifcabin  a  sale*  or  a  mortgage- deed  would 
rust  bjr  themselves  be  sufficient  to  establish- 
the  necessity  for  tba  sale  of  the  mortgage- 
^o  as  to  bind  the  other  co-parceners-  in-  a 
Hindu  femily.    Ibrahim  Walli  is.  dead,  but 
his  son  Karim,  Ibrahim  has  beea  examined. 
Be  deposes  that    he  was  joint    with  his 
father  ia>  business,  and  was  present  at  the 
time    when    the  conversation    took  place 
between  his  father  and  defendants  Nos.  I 
and  2  as  to  the  loan.    He-  states  that  defend- 
ants. Nos,  1  and  2  told  hia  father  fchafethey 
required  the<  loan  to    pay    off  antecedent 
ctatete.    He  adds  t&aA  his<  father  inquired 
from  Haji  Ahoaed  Yusif  as  to  the  status  of 
the  family  of    defendants    Nos,   1  and  5T 
and*  that  the   latter  explained   to  him  that 
lie  demanded  the  re-payment  of   the  loan? 
only  because  he  was  in    urgent  need    of 
ittoa^y,  aad  apparently  gave  him  to  under- 
stands  that    the  loan  was    needed  for  the 
benefit  of  the  family.     Be  alse  states   that 
his  father  made  inquiries  from   other  mem- 
foers<  of  the    caste    to    which    defendants 
Nos.  1  and  2  belong.    The  mortgage- deed 
which  was  signed   by  defendant  No.    1   as 
the  guacdian    of  Ratilal    recites  that  the 
Iban  waa  needed  for   the    benefit  of    the 
femtiy,  and  Bhagwanji  in  his  evidence  has 
admitted*  the  correctness  of  the  statement 
in  the    mortgage-deed  that  the-  loan    was 
requiired  for  the  benefit  of  the  family*    I 
need  hardly  point  out   that   the    amount 
borrowed  from  Ibrahim  Walli  was  utilised' 
tewswcte  the  liquidation  of  the  debt  due  to 
Haji   Ahmett    Yusif    which    was    a    debt 
ifacwred'  for   ftm&y  purposes,    I  have  re- 
ferred above  to  the  consent?  award  that  was 
made  a  rule  of  the    Cburt.    Mr.  Kimafcrai 
objeeted  t»  thea^ardloa  the  only  ground 
tile   rarfeor   had-    not    been  properly 
B^.admittedly  the  reference 
was*  s%hed  by  Rugiinath  as 
th&mihorplfewiitiiF  and4  he,  as 
was  tfce  mfcaagibg'  member*  of 


MARUPPA. 

the  joint  family.  It  was  lastly  urged,  that 
the  rjte  ot  interest  at  which  the  money  was 
borrowed  was  exorbitant  and  that*  this 
revealed  a  gross  disregard  of  the  family 
interest.  The  mortgage-deed  describes  the 
rate  of  interest  as  being  i5  per  cent,  which 
has  been  allowed  also  by  the  arbitrator. 
To  Haji  Ahmed  Yusif  the  interest  payable 
is  12  per  cent,  per  annum.  I  do  not  regard 
the  interest  payable  to  defendant  No.  3 
exorbitant  and  unconscionable,  or  as  be- 
traying an  utter  disregard  of  the  family 
interest  so  as  to  exempt  the  minor  plaintiff 
from  liability. 

My    findings,     therefore,    on  the    issued 
are: 

Issue  No.  I.— The  residential  house  was 
the  joint  family  property  of  the  plaintiff  and 
defendants  Nos,  1  and  2. 
Issue  No.  2. — In  the  affirmative* 
Issue  No.  3. — In  the  affirmative, 
The    plaintiff's  suit  is    dismissed    with 
costs. 

p.  B,  A.  Suit  dismissed. 


MADRAS  HIGH  COURT. 

SJSCOND  CIVIL  APPEAL  No.  244  OP  1922. 

October  2,  1924. 

Present: — Mr.  Justice  Madhavan  Nair. 

M.  RUDRAPPA— DEFENDANT  No.  3— 

APPELLANT 

versus 

K.  MAR1APPA  AND  OTHERS — DEFENDANTS 

NOS.  1,  2,  4  AND  3  AND  PLAINTIFFS  NOS.  1  TO  6 

— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  11^ 
0.  XXI 1 1 — Withdrawal  of  suit —Second  suit  when 
barred — Two  suits  involving  same  relief — Withdrawal 
of  one— Other,  maintainability  of. 

Under  O,  XXIII,  0.  P  G  ,  when  a  plaintiff  with- 
draws a  suit  without  the  permission  of  the  Court,  he 
is  precluded  from  instituting  fresh  suit;  but  this,  does 
not  prevent  the  trial  of  a  subject-matter,  so  lo.ng  aa 
such  trial  is  not  affected  by  the  principle  of  res 
judicata.  [p.  387,  cols  1  A  2] 

A  filed  a  suit  and  attached  certain  property  before 
judgment.  B  filed  a  claim  petition,  which  was  dis- 
missed, *ad  then,  filed  a  suit  for  getting  the  summary 
order  set  aside  Subsequently  B  filed  another  suit 
for  declaration  of  his  right  to  the  property  and  for 
delivery  of  possession.  Both  these  suits  were  filed 
within  &  year  of  the  date  of  the  order  on  the  claim 
petition.  B  withdrew  the  first  suit  as  being  unneces- 
sary with  the  permission  of  the  Court,  the  order  allow- 
ing withdrawal  not  mentioning  whether  it  was  with 
or  without  liberty  to  bring  a  fresh  suit.  A  now  took 
the  objection  that  the  second  suit  was  not  maintain- 
able as  B  was  precluded  from  agitating  the  question 
of  setting  aside  the  claim  petition  therein  by  the  with- 
drawal of  the  first  auit ; 


$86  *  fetJDRAPPA  V. 

Ueld,  that  a  declaration  of  his  title  claimed  by  U 
in  the  second  suit  involved  a  setting  aside  of  the 
order  on  the  claim  petition,  and  there  being  no  finnl 
adjudication  of  the  matter  in  the  first  sujt,  and  the 
second  suit  b^ing  filed  within  a  year  of  the  ordrr  on 
the  plaim  petition,  the  suit  was  maintainable,  [p.  387, 
col.  2.J 

Second  appeal  against  a  decree  of  the 
District  Couit,  Bellary,  in  A.  8.  No.  70  of 
1921,  preferred  against  that  of  the  Court 
of  the  District  Munsif,  Hospet,  in  0.  S. 
No.  91  of  1920. 

The  Advocate-General  and  Mr.  C.  S. 
Venkatachariar,  for  the  Appellant 

Mr.  V.  C.  Seshachariar,  for  the  Respond- 
ent. 

JUDGMENT.— The  3rd  defendant  is 
the  appellant.  The  plaintiff's  suit  was  sub- 
stantially for  a  declaration  of  the  rights  of 
plaintifl's  Nos.  1  to  4  to  the  plaint  lands 
and  also  for  delivery  of  possession.  Dur- 
ing the  pendency  of  the  suit  plaintiffs  Nos.  1 
to  4  sold  their  rights  to  plaintiffs  Nos.  5 
and  6.  According  to  the  plaintiffs,  the 
suit  property  originally  belonged  to  the 
members  of  the  Racheyla  family  arid  it  was 
purchased  by  the  father  of  plaintiffs  Nos.  1 
to  4  one  Hampayya  of  Idukal  on  the  3rd  of 
September  1912  under  Ex.  A.  The  case  of 
the  defendants  is  that  the  property  belong- 
ed to  the  family  of  Ponpayya  and  Mallayya, 
that  they  took  a  sale-deed  of  it  from  the 
Racherla  family  in  the  name  of  Mallayya's 
father-in-law,  Harupyyaof  Idukal,  that  it  was 
a  mere  benami  transaction,  that  Pompayya 
and  Mallayya  were  always  in  possession,  that 
thelands  now  belong  to  defendants  Nos.  4  and 
0  the  children  of  Pompayya  and  Mallayya, 
and  that  the  lands  are  now  being  held  by 
the  2nd  defendant  on  a  lease  given  to  him 
by  the  first  defendant  as  the  guardian  of 
the  4th  defendant.  The  3rd  defendant 
supported  the  plea  of  defendants  Nos.  1  to 
4  and  also  stated  that  the  present  suit  is 
not  maintainable  on  account  of  the  order 
passed  in  O.  S.  No.  531  of  1918  on  the  file 
of  the  District  Munsif  s  Court  of  Bellary. 

Three  questions  were  argued  before  me 
(1)  that  the  purchase  by  Hampayya  of  Idukal, 
the  father-in-law  of  Mallayya  was  a  benami 
transaction;  (2)  that  defendants  Nos.  4  and  i> 
are  owners  of  the  suit  lands  by  adverse 
possession  and  (3)  that  the  present  suit  is 
not  maintainable. 

The  first  question,  viz.,  the  benami  char- 
acter of  the  sale  to  Hampayya,  is  a  question 
of  fact.  Both  the  lower  Courts  have  found 
that  Ex.  A  evidenced  a  real  transaction  and 
Conveyed  title  to  the  property  to  the  father 


MARIAPPA.  [92  t  0. 

of  plaintiffs  Nos.  1   to  4.    This  finding  is' 
attacked   by  the  learned  Advocate- General 
oa  behalf  of  the  appellant.     Exhibit  A,  the 
sale-deed,  recites  that  the  plaint  lands  were 
orally  sold  to  Hampayya  for  Us.  800  in  1903 
and  put  in  Hanipay>a's  possession  and  that 
as  no  proper    sale-deed   was  executed   till 
then,  Ex.  A  was  executed  and  delivered  to 
Hampayya.    According  to  the  evidence  in 
the  case,  out  of  the  consideration  of  Rs.  800, 
Rs.   400  was  paid  in  cash   for  the  rest  a 
promissory-note,  Ex.  0,  was  executed.   This 
was  renewed   by  Exs.  I)  and   E,  and  when 
the  whole  amount  was  paid,   the  sale-deed 
Ex.  A  was  executed  in  favour  of  Hampayya. 
In  attacking  the    finding  that   the  sale   to 
Hampapya  was  not  a    benami  transaction, 
the  learned  Advocate-General  mainly  relies 
upon   Exs.  XLV  and  XLV  (a)  1,   extracts 
from  the  account-books  of    the    Racherla 
family  relating  to  the  transaction  of  Ham- 
payya's  son-in-law,  Mai  lay  yi,  and  his  elder 
brother  Pompayya.    These  accounts  show 
that  originally    the  idea    was  to  sell  the 
plaint  lands  to  Pompayya  and  Mallayya  for 
Rs.  650,  that  along  with  this  sum  the  whole 
amount  due  to  the  Racherla  people    came 
to  Rs.   1,030  in  1903,  of    this  Rs.  230  was 
excused  and  the    consideration  was  fixed 
at  Rs.   800,  half  of  which,  mz ,  Rs.  400  was 
paid  by  Hampayya  and  for  the  remaining 
sum  he  gave  Ex.  C.    Both  the  lower  Courts 
have  found  that   there  is  really  no  reason 
to  suppose  that  the  payments  were  made 
by  Hampayya  on  behalt  of    Pompayya  and 
Mallayya.      Though    originally    the    idea 
might  have  been  to    sell   the  property  in 
their  favour,  as  they  were  not  able  to  find 
consideration.  Mallayya'a  father-in-law  must 
be    taken  to  have  purchased    the  property 
for  himself.    This  is  the  view    taken    by 
both  of  the  lower  Courts  on  an  examination 
of  the  evidence  in  the  case.    Pompayya  and 
Mallayya   were  in  possession  of  the   lands 
for  a  considerable  number  of  years;  but  it 
must  be    remembered  that    Mallayya  was 
the  son-in-law  of  Hampayya.    The  conclu- 
sion that  Ex,  A  evidenced  a  real  transaction 
in  favour  of  the  plaintiffs  Nos.   1  to  4  is 
based  upon  the  evidence  in  the  case  and  I 
cannot    say    that  that    conclusion  is    not 
warranted  by  the  facts. 

Point  No.  2.— As  regards  adverse  posses- 
sion, both  the  lower  Courts  have  found  that 
from  1899  to  1903  Pompayya  and  Mallayya 
were  in  possession  by  virtue  of  the  agree- 
ment to  purchase  entered  into  with  the 
Racherla  family,  so  their  possession  was 


[921.  0. 1926] 


HUBBUB  A  CO   V.  SALLOH  MAHOMOb. 


not  certainly  adverse  to  the  Racherla  people, 
The  sale  had  not  been  completed,  and  the 
Racherla  people  must  be  still  considered 
to  have  regardecLthemselves  as  the  owners. 
As  the  sale  had  not  been  completed  in  1903 
Hampayya  decided  to  purchase  the  lands 
and  the  possession  cf  Pompayya  and  Mal- 
layya  after  that  period  must  be  considered 
to  be  by  the  permission  of  Hampayya.  I 
do  not  think,  therefore,  that  defendants 
Nos.  4  and  5  are  the  owners  of  the  suit  lands 
by  adverse  possession.  I  may  state  that 
this  argument  was  only  lightly  touched 
upon  by  the  learned  Advocate  General. 
Long  possession  by  Pornpayya  and  Mallayya 
was  referred  to  by  him  more  in  support 
of  the  agreement  that  Ex.  A  evidences  a 
benami  transaction  than  as  a  basis  for  sepa- 
rate argument. 

As  regards  the  plea  of  the  3rd  defendant 
that  the  present  suit  is  not  maintainable  on 
account  of  the  order  passed  in  O.  S.  No.  531 
of  1918,  the  facts  are  as  follows.  The  3rd 
defendant  filed  O  8.  No.  z  of  1918  on  the 
file  of  the  District  Court  and  attached  the 
plaint  lands  before  judgment;  plaintiffs 
filed  a  claim  petition  which  was  dismissed, 
they,  therefore,  filed  O.  8.  No.  531  of  1918 
on  the  9th  of  October  191rf  for  getting 
the  summary  order  set  aside  and  they  filed 
the  present  suit  on  the  8th  of  July  1919. 
It  will  be  seen  that  both  these  suits  were 
filed  within  a  year  of  the  date  of  the  order 
on  the  claim  petition.  In  the  present  suit 
there  is  reference  in  the  plaint  to  the  claim 
petition  and  a  prayer  for  a  declaration  of 
the  rights  of  the  plaintiffs  to  the  plaint 
lands  aginst  all  the  defendants  including 
the  3rd  defendant.  After  the  institution  of 
this  suit,  the  prosecution  of  0.  8.  No.  531  of 
1918  was  obviously  unnecessary  when  the 
3rd  defendant  took  the  objection  that  the 
present  suit  was  not  maintainable,  0.  8.  No. 
531  of  1918  had  already  been  filed  against 
him  and  the  plaintiffs,  therefora,  withdrew 
that  suit  (0.  8.  No.  531  of  1918).  It  is  the 
order  passed  when  it  was  withdrawn  that  is 
relied  upon  by  the  3rd  defendant  as  a  bar  to 
the  present  suit.  The  decree,  Ex.  XLIV, 
giving  permission  to  the  plaintiffs  to  with- 
draw the  suit  does  not  say  whether  it  was 
with  liberty  .or  without  liberty  to  bring  a 
fresli  suit.  As  it  does  not  dismiss  the  suit,  I 
do  not  think  that  the  plaintiffs  are  precluded 
from  agitating  the  question  raised  in  0.  8. 
No.  531  of  1918  in  this  suit.  No  doubt  under 
0.  XXIII,  when  a  plaintiff  withdraws  a  suit 

without  the  permission  of  the  Oourt,  he 


shall  be  precluded   from    instituting  fresh 
suit  ;  but  this  does  not  prevent  the  trial   of 
a  subject-matter,    so  long  as    such  trial  is 
not  affected  by  the  principle  of  res  judicata. 
As  Ex.  XLIV  shows  that  there  was  no  final 
adjudication  of  the    rights    forming    the 
subject-matter  of  that  suit,   I    think  that 
the  plaintiffs  may  claim  that  the  summary 
order  passed  on  their  claim  petition  should 
be  set  aside  in  the  present  suit.    The  decla- 
ration of  title  claimed  by  the  plaintiffs  in 
this  suit  amounts  to  a  setting  aside  of  the 
order  on  the  claim  petition.    1  have  already 
stated  that  both  this  suit  as  well    as  0.  S. 
No.  531  of  1918  were  filed  within  a  year 
of  the  date  of  the    order    on    the    claim 
petition.    The  plaintiffs  elected  to  proceed 
with  this  suit  involving    the  same  relief 
after  dropping   the  other.    I   may    say  in 
this  connection  O.  8.  No.  2  of  1918,  in   con- 
nection with  which  the  plaint  lands  were 
attached  by   the  3rd  defendant  was  dismis- 
sed after  the  filing  of  this  suit.    I  agree 
with   the  learned  District    Judge  that    the 
present  suit  is  not   barred    by     the  order 
in  O.  S.  No.  531  of  1918. 

I  dismiss  the  second  appeal  with  costs  of 
defendants  Nos.  9  and  10.  The  memo- 
randum of  objections  filed  by  respondents 
Nos.  1  and  2  raises  the  same  question 
dealt  with  in  the  second  appeal.  It  is 
also  dismissed  with  costs  of  respondents 
Nos.  9  and  10. 

v.  N.  v.  Appeal  dismissed. 

N.  H. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

ORIGINAL  CIVIL  SUITS  Nos.  432  AND  433 

OF  1924. 
EXECUTION  MISCELLANEOUS  No.  273  OP  1925, 

July  20,  1925. 

Present:— Mr.  Tyabji,  A  J.  C. 
YUSIF  MAtlBUB  &  COY.— PLAINTIFFS 

IN  ALL 

versus 

SALLOH  MAHOMOD  UMOR  DOSSAL- 
DEFENDANTS  IN  SUIT  No.  432. 

LALCHAND  JEYRAMDAS-DBFaNDANTS 
IN  SUIT  No.  433  OF  1924. 

FIDDA  HUS8AIN  ADAM  J  I— DEPENDANTS 

IN  EXBCUflON  MlSCBLLANEOUS  No.  273  OF 

1925. 

Civil  Procedure  Code  (Act  V  of  1908),  0.  XXI,  IT.  2t 
15,  0,  XXX,  r.  I  —  Suit  in  name  of  firm — Payment  to 
one  partner— Satisfaction  of  decree. 

Where  a  suit  is  brought  in  the  name  of  a  firm  under 
the  provisions  of  O.  XXX,  r.  1,  C.  P.  0,,  one  partner 
of  the  firm  is  competent  to  receive  payment  in  respect 
of  the  decree  iu  favour  of  the  firm  and  to  notify 


YUSIP  MAHBDB  &  CO.  t?,  SALLOH  MA9QMO0, 


datbfaction  of  the  said  decree  to  the  Court,    [p.  390, 
col  1] 

Mr.  Kimatrai  Bhojraj,  for  the  Plaintiffs 

Mr.  Khanchand  Gopaldas,  for  the  Defend- 
ants. 

ORDER. — These  three  matters  were 
argued  together  by  consent.  In  each  there 
is  an  application  for  execution  and  a  noti- 
fication of  satisfaction  and  the  point  is 
whether  the  decrees  have  been  satisfied  or 
whether  execution  should  proceed. 

The  same  questions  of  law  arise  in  all 
these,  and  the  questions  of  fact  are  similar. 
1  shall,  therefore,  deal  in  detail  with  Suit  No. 
432  of  1924  and  thereafter  deal  with  points 
not  already  covered  so  far  as  they  affect  or 
arise  in  Suit  No.  433  of  1924  and  Execu- 
tion No.  273  of  1925. 

SUIT  No.  432  OF  1924. 

The  decree  in  this  matter  was  made  on 
13th  May  1921  and  is  for  Rs.  11,744-13-8. 
On  the  19th  of  May,  Yusif  Haji  Abdullah 
one  of  the  members  of  the  plaintiffs'  firm 
wrote  to  the  defendant  the  letter  which  is 
Ex  3  A  in  these  proceedings  to  the  effect 
that  the  defendants  wqli  knew  that  the 
firm  of  the  plaintiffs  was  dissolved  and  that 
Mahbub  was  no  longer  a  member  of  th§ 
firm  and  that  no  payment  shotild  be  made 
to  Mahboob.  This  was  followed  by  a  letter 
dated  the  10th  June  1925  and  written  by 
the  Pleaders  of  the  plaintiffs  to  the  Pleaders 
of  the  defendants  in  the  following  terms:, 

"  We  shall  thank  you  to  direct  your 
clients  to  pay  up  the  decretal  amounts  in 
the  above  two  cases  as  detailed  below. 
Failing  payment  we  have  instructions  to 
file  execution  application  immediately  the 
Court  re-opens. 

Principal          Coats 

KB.    &.  p.     KB.    a.  p. 
Suit  No.  424  of 

1924-  ...     27,906  13  0    2,217  U  9.    Interest 

at  6  per 
cent,  per 
annum 
from 
20th 
June 
1924    to 
payment. 

Suit    No.   432   el 
1924  ..    10,19?    1  0       £50  13  3      Do. 

The  judgment-debtors  allege  that,  they 
paid  the  decretal  amount  on  ttye  13 th  of 
June  to  Mahbub,  one  qf  the  members,  of 
the  plaintiffs*  firm,  apd  that,  therefore,  the 
notification  that, the  decree  has  been  satis- 
fied i»  effective.  The  plaintiffs  in  the  first 
instance  cjeny  t&ftt  any  payment  was  in 


[99  i.  C.  19&] 

fact  made,  secondly  they  contend  that  the 
payment  being  to  one  of  several  partners 
of  their  firm  it  was  not  valid,  and  that 
Mahbub  as  a  single  partner  was  not 
empowered  by  law  to  give  a  valid  discharge, 
or  to  notify  satisfaction  of  the  decree  on. 
behalf  of  the  firm;  finally  they  say  that, 
in  any  event,  there  was  collusion  between 
Mahbub  and,  the  judgment-debtors  that 
the  collusive  transactions  cannot  affect 
their  rights :  so  that  assuming  that  the 
defendants  did  pay  Mahbub  in  collusion 
with  him,  th^y  are  nevertheless  bound  to 
pay  the.  amount  over  again  to  the  pfcain  tiffs, 

Aa  to  the  question  of  fact  I  think  the 
defendants  have  satisfactorily  proved  pay- 
ment on  the  13£h  of  June.  They  have  pro- 
duced their  books  of  account  which  I  have 
examined  with  some  care,  and -I  feel  no 
doubt  that  those  books  a^e  properly  kept, 
and  that  they  prove  the  payment  supported 
aa  they  are  by  the  oral  evidence,  qt,  Tha,w* 
eidas  and  Bhoora  who  are  emplpyed  in  the 
defendants*  firm.  Both  these  witnesses, 
especially  Thawerdae  impressed  me.fayour* 
ably. 

Doubt  was  thrown  on  the  ppyrcent  by 
reference  to  five  circumstances, 

In  the  first  place  because  it  was  said 
that  the  head  of  the  defendants1  firm  wh<? 
was  referred  to  as  Saith  Oaman  was,  not 
called.  I  had  at  a  very  early  stage  drawn 
Mr.  Khancband's  attention  to  the  impor- 
tance of  his  being  called  ;  and  I  giye  full 
weight  to  this  omission  :  but  I  am  satisfied, 
that  the  cause  of,  it  was  iperely  that  the 
witness  was  not  available  at  convenient 
hours.  This  matter  has  been  hea,rd  during 
three  hearings  1  believe.  In  any  case  when 
Mr.  Kh^nchand  offered  to  h^ve  him  called 
so  that  the  plsUntift  may  have  $n  oppor- 
tunity of  (ToSb-exuuuiiing  him,  Mr.  Kima- 
trai said  th$,t  if  I  called  bina  as  a  Court 
witness  he  would  cross  examine  th$  witness, 
but  otherwise  he  would  prefer  to  rely  on 
the  fact  that  the  witness  hacj  not  been  call- 
ed by  the  defendants,  That  reliance,  there- 
fore, is  on  a  broken  reed, 

The  next;  circumstance  relied  upon  in 
connection  with  this  question,  is  whether 
the  letter  of  19th  May  (Ex.  3rA)  was  not 
sufficient  to  w^arn  the  defendants,  and 
whether  apart  from  its  legal  eifect  (^hieh 
I  shall  consider  later),  it  did  not  throw 
great  diidpiriou  on  the  alleged  payment.  It 
did  ^M'iive  me  at  the  start  in  that  light.  But 
it.  must be.borne  ia  mind  that  Ex, 
written  only  by  pne  ol  the  thro* 


i  1  G. 


YffSItf  MAH8UB  &  CO,  V.  '8ALLOH  AiAliOMOD. 


389 


(assumhag  that  1^1*6  'faere  only  the  3  part- 
tfers  alte&ed  by  Seth  Ismail  Ex.  3  and 
not  tlife  five  persons  stated  to  be  partners 
by  Mahbub  i-u  his  deposition  Ex,  §1.  48 
at  the  'hearing  of  the  salt).  Exhibit  3  A 
fcannoft,  therefore,  be  compared  in  regard  to 
its  f6rmal  effect  or  weight  to  Ex.  8  which 
wAw  addtesSefd  by  the  Pleaders  of  the  firm  in 
wjibsfc  'favdur  the  decree  was  passed.  Ex- 
hibit S  may  well  be  described  as  a  demand 
Wr  jyaytoent  'enforced  by  a  threat.  % 
Tfty  tnind  tile  natural  effect  of  this  corres- 
pondence is  that  the  defendants1  firm, 
unless  it  was  m  monetary  difficulties,  would 
teik*  tha  payments  demanded.  As  a  re- 
sult, therefore,  of  the  examination  of  the 
correspondence  I  have  come  to  the  con- 
clusion that  Exs.  3-A  and  8  far  from  sup- 
porting the  Applicant  are  in  favour  of  the 
contention  o!  the  defendants. 

A  third  circumstance  was  the  fact  that  on 
the  date  of  the  payment,  viz.,  the  13th  of 
June,  Rs.  12,036  arfc  alleged  to  have  been 
p&id  in  cash  into  the  defendants'  firm  and 
that  the  source  of  this  sum  is  not  further 
traced.  There  was,  however,  a  balance  of 
Rs.  M'OO  brought  forward,  and  then  the 
large  sum  of  Rs.  2^,OdO  W£,s  drawn  by  a 
cheque  from  the  National  Bank  6f  India, 
and  these  two  sums  sufficed  for  the  pay- 
ment of  thte  decretal  amount,  and  yet  to 
leave  a  balance  of  as  much  as  Rs.  14,000  in 
hahd.  After  looking  over  the  accounts  I. 
think  that  the  sum  of  Rs.  12,000  was  not 
comparatively  so  large  as  to  make  that 
circum"aUne£,  in  itself,  sufficient  to  throw 
its  p&ymeht  by  Ssith  Osman  in  doubt. 

Fourthly  it  is  said  that  there  is  a  sum 
atanding  iu  the  defendants'  account  books 
d\ie  from  itahbub,  and  tint  this  circums- 
tance throws  doubt  oh  the  alleged  pay- 
ment to  him*  But  the  defendants  could 
not  .d'edii'ct  the  sum  that  was  due  from 
Mahboob  personally  f  j:oip  a  sum  due  to  the 
firm  under  a  decree  of  the  Court.  The  two 
transaction?  wprie  entirely  distinct,  and  one 
could  not  affect  jbhe  other. 


it  wa«  said  that  the  firm  of  Yuduf 
d  Oa.  had  been  dissolved  and 
kttdWn  to  h^VS  bSfen  dissolved  as  early 
as  1921.  But  tW  plaint  in  ifte  present 
silit,  dated  the  20t&  <tf  Juafe  1924,  is  in  the 
of  thte  firm  aM  describes  it  as  then 
dh  busiri^Ss.  There  is  no  substance 
tt  t»  ppiirt.  I»  tfe«i»efore,  eom«  to  ttifc  con- 
«tinon  that  the  iatndunt  of  the  d^ctee  wtits 
ad  filled. 


There  is  no  evidence  of  cdlltision  between 
the  defendants  atid  Mahbub  and  the  mere 
'suggestions  and  suspicions  that  the  plaint- 
iffs make  or  throw  out  against  the  defend- 
ants are  quits  insufficient  to  prove  allega- 
tions of  this  nature. 

i  should  like  to  add  with  reference  to  the 
evidence  of  Ismail  that  he  did  not  impreas 
me  very  favourably.  He  knows  English  well 
enough  to  write  the  letter  Ex.  3-A  in  Suit 
No.  432  and  Ex.  9  in  Suit  No,  433  ;  and  yet 
he  wanted  to  h&ve  every  question  put  to  him 
translated  and  he  himself  answered  in  the 
vernacular.  Then  his  statement  in  the 
letter  and  in  the  witness-box  that  the  $rm 
of  Yusuf  Mahbuh  &  Co.  had  been  dis- 
solved in  1921  was  opposed  to  the  frame 
Of  the  sait,  where  tlie  firm  are  plaintiffs 
and  are  de^cribsd  as  still  cirrying  on 
business.  In  the  witness  box  he  struck  me 
as  a  shrewd  man  taking  into  coasideration 
all  the  bearings  of  £  question  before  he  wag 
willing  to  commit  himself  to  a  reply,  and 
yet  eager  to  seize  points  in  his  OWQ  favour. 

It  remains  to  be  considered  whether  pay- 
ment to  Mahbub  iti  the  circumstance  entitles 
the  judgment-debtor  to  have  satisfaction  of 
the  decree  recorded. 

The  relevant  provisions  of  the  law  are  con- 
tained in  the  C.  P.  0.,  0.  XXI,  r.  15  and  0. 
XXX.  I  think  the  references  to  the  Indian 
Contract  Act,  s.  33  et  seq  were  quite  uncalled 
for.  Even  apart  from  the  fact  that  the  provi- 
sions of  the  Contract  Act  have  caused  much 
difference  of  opinion  in  the  Courts,  it  is  ob- 
vious that  the  effect  of  a  decree  against  a  firm 
is  quite  different  and  based  ou  entirely 
different  principles  and  considerations  from 
the  effect  of  a  promise  to  joint  promisor*,; 
and,  in  any  p&ae,  the  specific  provisions  01 
the  Code  dealing  with  procedure  and  exe- 
cution mast  be  considered  rather  thau  far- 
fetched analogies  drawn  from  rules  relating 
J;o  contracts,  For  similar  reasons  I  think 
0  XXX  which  deals  with  suits  by  or  against 
firms  should  be  considered  in  the  fir$t 
instance,  and  ia  priority  to  the  mpre  gene- 
oral  rules  relating  to  joint  decree-holders. 

Order  jXXX,  it  must  de  observed,  permits 
but  does  not  make  it  incumbent  on  persons 
claiming  or  being  liable  9.3  partners,  to  ,  $w 
or  be  sued  iu  the  name  of  the  Arm;  and  the 
plaintiffs  in  the  present  case  adopted  this 
course  voluntarily.  I  say  this,  as,  if  the 
evidence  of  Ismail  Haji  Abdul  Satar  before 
me  was  accurate  and  the  firm  of  Yusuf 
Mahbub  &  Co.  had  been  dissolved  before  th§ 
Suit  was  instituted  and  it  it  be  the  fact  that 


390 


CHANDAYYA  HEDGE  V.  KAVERI  HEOADTBI. 


L92LO.  1926j 


there  were  differences  between  the  partners; 
then  apart  from  the  variance  from  the  truth 
which theie  is  in  the  title  to  the  suit,  it 
was  not  very  wise  on  the  plaintiffs'  part  to 
sue  in  the  firm  name,  nor  to  obtain  a  decree 
in  favour  of  the  firm.  For,  in  the  very  first 
rule  of  O.  XXX  it  is  laid  down  that  where 
persons  sue  in  the  name  of  their  firm,  any 
one  of  the  partners  may  sign,  verify  or 
certifiy  pleadings  or  other  documents  requir- 
ed to  be  signed,  verified  or  certified  by  the 
plaintiff.  Unlees  there  is  something  to  take 
away  the  effect  of  this  sub- rule,  it  would 
seem  that  Mahbub  not  only  could  but  was 
under  a  duty  to  certify  payment  which  was 
received  by  him;  and  lhat  the  Court  was 
then  bound  under  0.  XXI,  r.  2  (1)  to  record 
the  same.  (The  language  of  this  rule  is 
markedly  different  from  that  cf  O.  XXIII, 
r.  3,  where  it  has  to  be  proved  to  the  satis- 
faction of  the  Court  that  a  suit  has  been 
adjusted  wholly  or  in  part). 

Nothing  that  was  said  to  me  in  the  course 
of  the  elaborate  arguments  from  the  Bar 
seems  to  me  to  add  to  or  detract  from  these 
provisions  which  are,  in  my  opinion,  suffi- 
ciently clear. 

I  am  of  opinion  that  the  suit  having  been 
brought  in  the  name  or  the  firm  under  O. 
XXX,  r.  I,  Mahbub  can  certify  payment 
under  O.  XXI,  r.  15;  and  the  Court,  unless 
satisfied  that  fraud  or  collusion  necessitat- 
ed some  cautionary  measures,  is  bound  to 
record  satisfaction.  I  am  not  now  dealing 
with  any  case  of  fraud  or  collusion,  so  I 
need  not  consider  what  course  (if  any)  is 
left  open  to  the  Court  when  that  is  proved. 
I  have  the  lees  hesitation  in  coming  to  the 
conclusion  as  the  plaintiffs  need  not 
have  sued  in  the  firm  name.  They  could 
have  asked  the  Court  to  impose  conditions 
against  any  one  partner  executing  the  decee 
(under  O.  XXI,  r.  15);  or  they  could  have 
applied  for  a  Receiver 

If  the  law  empowers  a  partner  to  certify 
receipt  of  payment,  as  I  hold,  then  it  must 
follow  that  he  is  empowered  to  receive  it. 
But  the  general  law  of  partnership  is  suffi- 
ciently explicit  on  this  point. 

The  decree  will,  therefore,  be  noted  as 
haying  been  satisfied  in  full  and  the  appli- 
cation for  execution  dismissed  with  costs 
SUIT  No.  433  of  1924. 

The  amount  concerned  in  this  suit  is 
only  Rs.  557-8-0  and  the  evidence  is  less 
full.  I  am  not  prepared  to  hold  that  the  evi- 
dence of  payment  and  the  books  of  account 
showing  payment  are  all  false.  Nor  is  there 


any  evidence  of  collusion  or  fraud. 

The  decree  will,  therefore,  be  noted  as 
having  been  satisfied  in  full  and  the  appli- 
cation for  execution  dismissed  with  costs. 
EXECUTION  MISCELLANEOUS  No.  273  OF  1925. 

The  evidence  in  this  matter  is  somewhat 
more  detailed  than  in  the  last;  for,  though 
the  amount  concerned  is  only  Rs.  550  it 
was  paid  in  the  settlement  of  a  decree 
for  Rs  750,  besides  costs,  etc.  altogether 
amounting  to  over  Rs.  1,000.  There  were 
also  prior  overtures  for  settlement  which 
were  declined  by  Ismail  and  Yusuf.  The 
sum  of  Rs.  550  was,  I  hold,  paid  in  full 
settlement  of  the  decree.  This  amount 
was  borrowed  for  the  purpose,  and  Rs.  500 
out  of  this  were  received  by.  cheque  and 
Rs.  50  in  cash.  These  details  are  proved 
by  the  witness  Tyabali  and  by  entries  in  his 
books,  and  also  by  Yusufali  Noorbhai.  These 
witnesses  seemed  to  me  to  be  speaking  the 
truth.  I  can  quite  imagine  that  the  defend- 
ants should  have  preferred  settling  with 
Mahbub  who  was  willing  to  give  a  full 
discharge  on  receipt  of  Rs.  550,  rather  than 
Ismail  or  Yusif  who  would  not  accept 
Rs.  750  or  Rs.  800  and  who  further  had  the 
judgment- debtor  arrested. 

The  decree  will,  therefore,  be  noted  as 
having  been  satisfied  in  full  and  the 
application  for  execution  dismissed  with 
costs. 

p.  B.  A.  Application  dismissed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEALS  Nos.  1416  TO  1418 
OF  1923. 

AND 

CIVIL  MISCELLANEOUS  PETITIONS  Nos.  2637 

AND  2638  OF  1925. 

August  3,  1925. 

Present: — Mr.  Justice  Phillips. 

CHANDAYYA  HEGDE— DEFENDANT -• 

APPELLANT 

versus 

KAVERI  HEGADTHI  AND  OTHERS- 
PLAINTIFFS — RESPONDENTS. 
Hindu   Law — Aliyasantana     family— Maintenance 
— Junior  members,  right  of,  to  separate  maintenance — 
Disputes  between  members,    whether  sufficient  ground 
for  award  of  separate  maintenance. 

The  junior  members  of  an  Aliyasantana  family 
are  not  entitled  to  separate  maintenance  on  the 
ground  of  mere  inconvenience  caused  by  "want  of 
harmony  between  the  ejman  and  the  junior  members, 
[p.  391,  col.  2.] 

In  the  absence  of  any  evidence  that  the  disputes 
between  the  members  are  of  such  a  nature  as  to  make 
it  impossible  or  dangerous  for  th$  members  to  cou- 


[92  I.  0.  1928] 


CHANDAYTA  HEDGE  V.  KAVERI  HEOADTHI, 


391 


tinue  to  live  together  in  the  same  house  and  take 
meals  together,  a  Court  should  not  award  separate 
maintenance  to  junior  members  on  the  ground  that 
the  members  are  not  moving  well  together  and  that 
a  joint  mess  would  be  extremely  inconvenient,  \ibid] 

Kunhi  Amma  v.  Amtnu  Amma,  16  Jnd.  Ca3  178,  36 
M.  591;  (1912)  M.  W.  N.  1233;  24  M  I>.  J.  550,  relied 
on. 

It  is  not  incumbent  on  the  ejman  of  an  Aliya- 
santana  family  to  distribute  any  spare  money  he  has 
in  his  pocket  amongst  all  the  members  of  tho  family 
or  among  some  of  them  [p  392,  col.  1  ] 

When  some  junior  members  of  the  family  reside 
away  from  the  family  for  a  portion  of  the  year  with 
their  husbands  or  wives,  as  the  case  might  be,  they 
are  not  entitled  to  claim  from  the  ejman  a  sum  equiva- 
lent to  their  maintenance  during  the  period  of 
absence  [ibid] 

Second  appeal  against  the  decrees  of  the 
Court  of  the  Subordinate  Judge,  South 
Karana,  in  A.  8.  Nos.  167,  166  and  165  of  1922, 
preferred  against  those  of  the  Court  of 
the  District  Munsif,  Udipi,  in  O.  8. 
Nos.  133,  134  and  135  of  1920  respectively, 

Petition  pray  ing  that  in  the  circumstances 
stated  therein,  the  High  Court  will  be 
pleased  to  dismiss  the  Second  Appeal  No. 
1416  of  1923  without  costs  as  disputes  be- 
tween the  parties  to  it  have  been  settled  in 
pursuance  of  a  compromise  referred  to  in 
the  affidavit  filed  in  0  M.  P  No.  2638  of 
1925  on  the  file  of  the  High  Court  praying 
for  leave  to  compromise  detailed  in  the 
affidavit  filed  herewith  as  being  beneficial  to 
the  minor  respondents  Nos.  8  to  10  in  the 
said  Second  Appeal  No.  1416  of  1923. 

Messrs.  B.  L,  N.  Raiand  B.Sitarama  Rao, 
for  the  Appellant. 

Mr.  K.  Y.  Adiga,  for  the  Respondents. 

JUDGMENT.— These  three  suits  are 
brought  for  maintenance  against  the  first 
defendant  who  is  the  ejman  of  the  Aliya- 
eantana  family  to  which  the  plaintiffs  be- 
long. Separate  maintenance  is  claimed  in 
all  three  suits  on  the  ground  that  the  defend- 
ant had  refused  to  maintain  the  plaintiffs. 
Both  the  Courts  have  found  that  this  case 
is  untrue  and  that  there  was  no  refusal 
by  the  defendant  to  maintain  the  family 
but  both  the  Courts  have  given  a  decree 
for  maintenance.  The  lower  Appellate  Court 
has  held  that  "defendant  and  the  plaintiffs 
are  not  moving  well  and  that  a  joint  mess 
in  the  family  house  has  become  extremely 
inconvenient"  and  on  that  ground  has 
awarded  separate  maintenance.  The  right 
,of  a  member  of  an  Alayasantana  family 
for  maintenance  in  the  tarwad  house  is 
undoubted  and  under  certain  circumstances 
'  ho  is  ejititjed  to  separate  maiuteRajics  out- 


side. It  has  been  held  that  when  a  wife 
goes  to  live  with  her  husband  or  when  a 
husband  goes  to  live  with  his  wife  in  a 
separate  house,  they  are  entitled  to  separate 
maintenance.  Vide  Maravadi  v.  Pamakkar 
(1),  Kunbi  Amma  v.Ammu  Amma  (2),  Muthu 
Amma  v.  VMathumkara  Gopalan  (3) 
and  Govindan  Nair  v.  Kunja  Nayar  (4). 
But  it  is  not  suggested  in  these  cases 
that  any  of  the  members  has  gone  to 
reside  separately  for  any  proper  purpose. 
One  Seshappa,  the  head  of  the  branch, 
which  brings  the  Suit  No.  133  of  1^20  did 
apparently  leave  the  tarwad  house  for  a  year 
or  two  but  he  admits  that  he  returned  there 
when  he  found  that  both  his  branch  and  the 
other  two  branches  were  being  treated  alike. 
It  is  not  suggested  that  any  of  the  other 
members  lias  gono  away  to  live  separately, 
except  temporarily  and  from  time  to  time! 
It  is  now  urged  for  respondents  that  they 
are  entitled  to  separate  maintenance  be- 
cause of  the  quarrels  that  have  taken  place 
in  the  family,  '  There  have  been  suits  be- 
tween the  ejman  and  some  members  of  the 
family  and  also  one  suit  between  two 
branches  of  the  family,  but  there  is  no  evi- 
dence to  show  that  these  disputes  have  been 
of  such  a  nature  as  to  make  it  impossible 
or  dangerous  for  the  members  to  continue 
to  live  together  in  the  same  house  and  take 
meals  together.  The  lower  Appellate  Court 
has  merely  found  that  their  living  together 
was  extremely  inconvenient.  It  has  been 
pointed  out  in  Kunhi  Amma  v.  Ammu 
Amma  (2)  that  the  right  to  separate  mainten- 
ance cannot  be  put  on  the  mere  ground 
that  there  is  no  such  complete  harmony  in 
the  house  as  to  ensure  the  happiness  of  the 
claimant.  Mere  inconvenience,  therefore,  is 
not  sufficient  to  warrant  separate  mainten- 
ance. It  may  be  observed  that  the  lower 
Appellate  Court  does  add  to  these  reasons 
the  following  "I,  therefore,  agree  with  the 
lower  Court  in  holding  that  the  plaintiffs 
are  entitled  to  claim  separate  maintenance11 
and  he  must  be  deemed  to  have  adopted 
the  District  Munsif's  reasoning.  When  we 
look  at  the  findings  of  the  District  Munsif, 
we  see  nothing  more  definite  than  the  find- 
ing ctf  the  Subordinate  Judge.  The  Dis- 

(1)  14  Ind.  Caa  383,  36  M.  203;  11  M.  L.  T  112-  (1912) 
M,  W  N.  109;  22  M  L.  J.  309.  ' (   } 

(2)  16  Ind  ^Caa  178;  36  M.  591;  (1912)  M.  W.  N.  1233; 
24  M.  L  J.  559 

(3)  16  Ind,  Gas  895;  36  M.  593,  23  M,  L,  J.  496;  13  >I. 
L  T.  120. 

(4)  51  Ind.  Cas.  326;  42  M.  686;  36  M.  L.  J,  565'  (1919) 
M.  W.  N.  302;  26  M._L.  T.  189.  „    ' 


302 


StTKHDEODAS  BAM  PROSAD  V.  JAlNTJlAL  JAOTTNADAS.  [S3  I.  0. 


trict  Munsif  elaborately  discusses  the  evi- 
dence and  finds  the  plaintiffs  are  not  debarr- 
ed from  claiming  maintenance,  but  the 
mere  fact  that  they  are  not  debarred  in 
suitable  eireunretanoeR  from  so  claiming  is 
no  evidence  that  such  suitable  circum- 
stances do  exist  and  that  point  h^  has  not 
considered,  his  main  ground  being  that  the 
defendant  had  refused  to  permit  theplaintrffs 
to  ''freely  participate  in  the  family  income," 
defendant  had  acted  up  to  the  terms  of  a 
family  karar  which  defined  th*  rights  of 
the  parties  and  it  was  not  incumbent  on  him 
to  distribute  any  spare  money  that  he  had 
in  his  pocket  among  all  the  other  members 
or  even  among  some  of  them.  Similarly 
the  District  Munsif  seems  to  think  that 
when  some  members  resided  away  for  a 
portion  of  the  year  with  their  husbands  or 
wives,  as  the  case  might  be,  they  were 
entitled  to  claim  from  the  ejman  a  sum 
equivalent  to  their  maintenance  during  the 
period  of  absence.  Such  ^  right  has  cer- 
tainly never  been  recognised  by  the  Courts 
and  the  District  Mansif  gives  no  authority 
for  his  opinion.  Even,  therefore,  if  we  take 
the  findings  of  the  District  Munsif  together 
with  those  of  the  Subordinate  Judge  no 
adequate  reasons  have  been  given  for  award- 
ing separate  maintenance  in  these  suits, 
In  view  of  these  findings  it  is  unnecessary 
for  me  to  say  anything  about  the  rate  of 
maintenance;  but  I  would  point  out  that 
the  Subordinate  Judge  has  given  very 
inadequate  reasons  for  rejecting  the  actual 
income  shown  in  the  leases  and  accepting 
in  preference  some  vague  estimate  of  what 
the  yield  would  have  been  and  the  price 
that  it  would  have  fetched.  He  has  also 
divided  the  income  into  exactly  equal  shares 
for  each  person  and  allotted  it  accordingly 
not  taking  into  account  the  right  of  the 
karnavan  to  something  more  and  the  right 
of  those  members  who  continued  to  live 
jointly  in  the  family  house  to  enjoy  the 
same  mode  of  living  as  they  formerly  en- 
joyed subject  only  to  the  rights  of  those 
who  have  separated  from  the  family. 

Second  Appeal  No.  1416  of  1923  has  been 
compromised  as  between  the  defendant  and 
all  the  plaintiffs  except  the  third.  There 
will  be  a  decree  in  accordance  with  that 
compromise  and  also  a  decree  dismissing 
the  suits  with  costs  throughout,  the  costs  in 
8.  A.  No.  Hlfi  of  1923  being  met  by  3rd 
plaintiff  alone. 

v.  N.  T. 

z,  K.  Appeal  allowed. 


CALCUTTA  HI<*H  COUBT, 

CIVIL  RULE  No.  1?02  o*  1921 

June  16, 1935, 
Present:— -Justice  Sir  Ewai*t  Greaves, 

KT  ,  and  Mr.  Justice  B.  B.  Ghose. 

MBSSKS.  8UKHDEODA8  RAM  PROSAD— 

LANDLORDS  —  PETITIONERS 

remts 
MESSRS.  JAINTILAL  JAMUNADAS 

AND  ANOTHER — OPPOSITE  PARTIES. 

Calcutta  Rent  Act  (B,  C.  \1IJ  of  1920),  s.  tt—De*rt* 
for  ejectment— Standardization  of  rent— Bent  Con- 
troller, jurisdiction  of 

After  a  landlord  has  obtained  a  decree  for  ejaet- 
ment  of  the  tenant,  the  Rent  Controller  has  no  juris- 
diction to  fix  a  standard  rent  of  the  premises,  as  there 
is  no  tenancy  in  exiiteace.  [p.  393,  col.  1.] 

Rule  against  an  order  of  the  Court  of  tire 
Controller  of  Rents,  Calcutta,  in  Standard 
Rent  Case  No.  405  of  1923. 

Babus  Satindra  Nath  Mukherji  and 
Hiral-al  Ganguli,  for  the  Petitioners* 

Barm  J.  M.  M?'£m,forthe  Opposite  Parties. 

JUDGMENT.— This  is  a  Rule  obtain- 
ed at  the  instance  oi  the  landlords  and 
directed  against  an  order  passed  by  t!re 
Rent  Controller  on  the  25th  September 
1924  purporting  to  fix  a  standard  rent  off 
the  premises  in  suit. 

The  material  facts  are  as  follows.  On 
the  21st  March  1922  the  tenants  applied 
for  standardization  of  rent  and  a  written 
statement  was  filed  by  the  landlords  on  the 
27th  April  in  that  year.  On  the  8th  June 
the  tenants1  case  before  the  Rent  Controller 
was  dismissed  for  default.  On  the  29th. 
April  1922  the  landlords  served  a  notice 
to  quit  on  the  tenants  and  the  determina- 
tion of  the  tenancy  was  to  take  place  as 
from  the  1st  June  1922.  In  the  following 
December  the  landlords  commenced  a  suit 
on  the  Original  Side  of  this  Court  for  eject- 
ment for  non-compliance  with  the  notice 
and  for  arrears  of  rent  and  mesne  profits. 
Subsequent  to  this  on  the  20th  June  19?3, 
the  tenants  whose  previous  application 
before  the  Rent  Controller  had  been  di£- 
niissed,  again  applied  for  standardization  of 
rent.  On  the  29th  June  1923,  the  land- 
lords' suit  for  ejectment  was  decreed  ex 
parte.  But  the  suit  was  subsequently 
restored  and  was  again  heard  on  the  24th 
July  1924  when  the  suit  was  decreed  on 
contest  and  an  order  was  made  for  posses- 
sion to  be  given  within  four  weeks.  The 
rent  for  the  five  months,  January  to  May 
1922,  was  fixedatasumof  Rs.  250  for  the 
five  months  and  mesne  profits  were  decreed 
at  the  rate  of  Rs,  220  per  month. 


SATB'BPPA  CHE1T1AR  V   MUTffOBAMt  FILIAL 


CH1.-0.1W8] 

The  question  before  us  is  -whether  the 
Rent  Controller  was  entitled  to  fix  standard 
reat  of  the  premises  on  the  24th  September 
1924.  In  OUT  opinion  he  dtearly  had  no 
jurisdiction  to  deal  with  the  matter  on  this 
date.  The  suit  for  ejectment  had  been 
decreed  on  the  24th  July  1924  and  thereby 
the  notice  to  determine  the  tenancy  on  tha 
1st  June  1922,  was  held  to  be  a  valid  notice. 
Consequently,  at  the  time  the  tenants*  ap- 
plication was  made  for  fixing  a  standard 
rent,  namely,  on  the  20th  June  1923,  and 
on  the  date  Mien  the  Rent  Controller  pur- 
ported to  fix  a  standard  rent,  namely,  the 
5th  September  1924,  there  was  no  tenancy 
in  existence  and  consequently  there  was 
nobody  who  could,  as  a  tenant,  apply  to  the 
Rent  Controller  for  fixing  standard  rent. 
Consequently,  in  our  opinion,  the  whole  of 
the  proceedings  before  the  Rent  Controller 
was  incompetent  and  the  order  purporting 
to  fix  astandard  rent  on  the  25th  September 
19j4  was  without  jurisdiction.  Some  sug- 
gestion is  made  that  there  was  a  statutory 
tenancy  under  the  Rent  Act  in  existence 
until  the  suit  was  decreed  on  the  24th  July 
1924  but  it  does  not  seem  that  there  is  any 
substance  in  this  argument  and  we  do  not 
see  how  this  contention  can  really  be  raised. 

In  the  circumstances,  therefore,  we  make 
the  Rule  absolute  and  the  landlords,  the 
petitioners,  will  be  entitled  to  their  costs 
which  we  assess  at  five  gold  mohurs. 

N.  H.  Rule  made  absolute. 


893 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  OEMS  No,  33  OF  1924. 

November  28,  1924. 
Present:  —Mr.  Justice  Wallace  and 

Mr.  Justice  Madbavan  Nair. 
S.  N.  B.  8ATHEPPA  OHETTIAR  BY 

AUTJ10BH3ED  AGENT,  CJ3IDAMBARA 

VELAN  —  PLAINTIFF  —  APPELLANT 

vesrus 
K.  MUTflUSAMI  PILLAI—  DEFENDANT 


Act  (I  of  1872),    s.  92—Suit  on  pro-note— 
Discharge,  proof  of, 

Where  in  answer  to  a  suit  on  a  pro-note,  the  defend- 
ant admits  execution  of  the  note  and  receipt  of  the 
money  but  pleads  that  the  amount  was  agreed  to  be 
treated  as  an  advance  towards  the  pay  and  bonus  of 
Ike  defendant  while  in  plaintiffs  service  and  that  as 
the  pay  and  bonus  had  fallen  due  before  date  of  suit, 
the  note  ha<}  been  discharged,  proof  ol  &e,  agree- 


ment is  not  excluded  by  s.  02  of  the  Svi&enee  A<*t, 
inasmuch  as,  in  the  circumstances,  it  is  merely  a 
method  of  payment  or  discharge  proveable  and  en- 
forceable as  such  [p.  394,  col.  l.j 

Appeal  against  an  order  of  J/he  Court  *>f 
the  Additional  Subordinate  Judge,  McrchiTA, 
dated  the  4th  October  1923,  in  A.  8.  No. 
7*  of  1923  (0.  S.  No.  i>97  of  1921  *n  tbe  *le 
of  the  Court  of  the  Dirtrtet  MteaflsK, 
Madura  Town). 

Messrs.  B.  Sitarama  tiao&ad  S.  K.  Mufhu 
Swamy  Iyer,  for  the  Appellant. 

Mr.  R.  Satherama  Sastri,  for  the  Respond- 
ents. 

JUDGMEHTY- This  is  an  a  p  $  %  a  1 
against  an  order  of  remand  by  the  totter 
Appellate  Court  in  a  promissory  nofte  suit. 
The  plaintiff  sued  the  defendant  in  the  Dis- 
trict Munsif  s  Courb  on  an  en-deukatrd  pro- 
missory note  for  Rs.  700.  The  defendant 
admitted  execution  and  the  receipt  of  thfc 
money,  but  pleaded  that  the  promiesoiy- 
note  was  taken  by  the  plaintiff  as  a  sort 
of  guarantee  that  the  plaintiff  twuW  not 
resile  from  his  bargain  to  empower  the  de- 
fendant to  manage  his  lands  and  get  posses- 
sion of  them  for  him  by  criminal  proceed- 
ings that  the  plaintiff  promised  to  pay  him 
Rs  :  0  a  month  for  his  services  and  a  bonus 
of  Rs.  £00  if  the  criminal  proceedings 
turned  out  successful,  that  he  thus  got  t&e 
Rs  700  as  a  sort  of  advance  of  hfe  pay  and 
bonus  which  were  going  to  fail  dn*e  to  hiifc, 
and  th&t  this  advance  was  to  be  discharged 
as  and  when  that  pay  and  bofcti*  toecatn-e 
due  and  that  the  plaintiff  agreed  to  this 
course  being  adopted;  the  defeudatttfoirth^r 
pleaded  that  pay  to  the  extent  of  Ra  200 
and  more  aria  the  bonus  of  Rs.  500  had 
actually  fallen  due  to  hiin  bfefwfc  th« 
of  suit  and  that,  therefore,  thfc 
note  had  been  fully  discharged. 

Tbe  District  Munsif  held  that  the 
ant  could  not  put  forward  the  abow  agree- 
ment iti  defence  in  a  promissor^notts  suit 
as  such  an  agreement  contravened  the  £ft>- 
visions  of  s.  92  of  the  Indian  Evid^ncfc  Act. 
The  lower  Appellate  Court  held  tfaat 
agreement  could  be  pifcved  and 
the  suit  for  evidence,  and  against  this  o*dfcr 
the  present  appeal  is  flted. 

Neither  of  the  lower  Courts  has,  wetMak, 
quite  clearly  understood  tha  tt&Uifeof  ^he 
case.  The  defendant's  written  atatetiteAt  is 
not  as  clear  as  it,  might  be  but  Wfc  thifck 
that  his  plea  really  amounts  to  fc  dontentiofi 
that  the  promissory-note  sum  w&*  paid  to 
him  as  au  advance  of  pay  and  bo&ttB,  that 


•394 


KHARAS,  R.  P,  V  BHAWANJI  NAR8I. 


advance  to  be  paid  off  as  and  when  that 
pay  and  bonus  fell  due.    Now,  if  this  is  a 
plea  that  the  promissory-note  was  not  pay- 
able on  demand  and  was  not  enforceable 
until  the  pay  and  bonus  became  due,  i.  et,  was 
not  enforceable  until  it  was  discharged  and 
was,  therefore,  never  really  enforceable  at 
all,  that  would  be  a  plea  of  a  condition  in 
defeasance  of  the  oil-demand  contract  and 
the  District  Munsif  B  view  would  be  perfect- 
ly correct.    But  it    is  not    that  and    the 
defendant    himself    admits  so  much.    His 
plea  is  rather  an  admission    that    if   the 
plaintiff  chooses  to  sue  before  the  pay    and 
bonus  were  due  then  he  cannot  resist  the 
demand  but  if  the  plaintiff  chooses  to  delay 
his  suit  until  the  pay  and  bonus  had  fallen 
due,    then  the  promissory-note  ia    in  fact 
discharged  because  the  plaintiff  agreed  to 
allow  that  pay  and  bonus    to   be  credited 
towards    the    promissory-note  debt.    That 
that  was  the  case  between  the  parties  from 
the    first,  is  clear  from  the  fact  that  the 
first  issue  in  the  case  was  whether  the  dis- 
charge pleaded  is  true,  the  defence  being 
treated  not  as  plea  of  non-enfprceability  of 
the  note,  but  as  a  plea  of    discharge,  and 
it  was  until  another  District    Munsif    took 
up  the  case  that  the  third  issue  was  framed, 
namely,  whether  the  written  statement  dis- 
closes  any    valid    defence.    Now,    as  the 
plaintiff  has  on  the  defendant's  case  deferr- 
ed his  suit  until  the  pay  and  bonus  were 
due  from  him  to  the  defendant,  we  can  Bee 
no  bar  under  s.  92  of  the  Indian   Evidence 
Act  against  the  proof  of  this  agreement. 
It    is    not  in  any  sense  an  alteration    of 
the  original  terms  of  the   contract.    It  is 
for  the  purposes  of  the  present  defence  a 
mere  agreement  as  to  the  method  of  pay- 
ment proveable  and    enforceable  when    a 
state  of  affairs  is  reached  where  it  does  not 
conflict  with  the  on-demand  condition    in 
the  promissory-note.    The  note  is  still  and 
has  always  been  payable  on  demand;    but 
when  in  answer  to  the  demand  the  defend- 
ant  is  in  a  position  to  say  that    he    has 
already  discharged  the   note  according  to 
the    method    agreed    upon    between    the 
plaintiff  and  himself,  there  can  be  no  bar 
under  a.   92  to  prevent  proof  of  that  agree- 
ment. 

In  this  view,  no  question  of  legal  or 
equitable  set  off  will  arise.  If  it  is  proved 
that  there  was  an  agreement  that  the  note 
should  be 'li.-cIifirptMl  in  that  way,  then  the 
note  is  either  discharged  or  it  is  not,  and 
the  correct  issue  for  decision  in  the  case  is 


[98 1.  0. 1926] 

Issue-I— whether  the  discharge  pleaded  is 
true? 

The  defendant  has  also  put  forward  a  plea 
of  general  set  off  against  the  plaintiff  that 
the  plaintiff  owed  him  various  sums  of 
money  amounting  to  much  more  than  the 
promissory- note?amount  and  that,  therefore, 
the  promissory-note  amount  is  not  owing. 
But  he  did  not  in  the  first  Court  pay  any 
fee  ou  the  amount  claimed  by  him  as  a  set  off 
and  the  District  Munsif,  therefore,  refused  to 
entertain  that  plea,  The  defendant  did  not 
appeal  on  that  ground  and  he  never  urged  that 
ground  before  the  lower  Appellate  Court.  We 
are  not  prepared,  therefore,  to  allow  him  to 
take  the  point  here  in  appeal,  nor  need  we 
deal  also  with  the  further  ground  put  for- 
ward by  him  that  this  promissory  note  was 
hierely  an  item  in  a  series  of  running  ac- 
counts that  being  a  point  which  he  also 
never  put  forward  before  the  lower  Appellate 
Court.  We  are  here  concerned  only  with 
the  question  whether  the  lower  Appellate 
Court's  order  of  remand  is  a  proper  one. 
We  are  of  opinion  for  the  leasons  given 
above  that  it  was  and  that  the  suit  after 
remand  should  be  dealt  with  by  the  first 
Court  on  the  lines  that  we  have  indicated 
above.  We,  therefore,  dismiss  this  appeal 
with  costs, 
v.  N.  v.  Appeal  dismissed, 

Z.  K. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

ORIGINAL  CIVIL  SDIT  No.  81  OF  1924 

September  17,  1925. 
Present :— Mr.  Raymond,  A.  J.  C. 
R.  P.  KHARAS  AND  OTHERS— PLAINTIFFS 

versus 
BHAWANJI  NAR8I— DEFENDANT. 

Contract  Act  (I  of  1872},  s.  230— Principal  and  agent 
— Auctioneer,  whether  can  maintain  suit  for  value  of 
goods  auctioned 

An  atictioneer  is  not  a  bare  agent,  but  an  agent  who 
has  an  interest  in  the  goods  which  are  entrusted  to 
him  for  sale  and  as  such  can  maintain  a  suit  for  the 
recovery  of  the  value  of  the  goods  auctioned  by  him. 
[p.  396,  col.  1  ] 

Subrahmania  Pattar  v.  Narayana  Nayar,  24  M 
130  and  Wilhams  v.  Millington.  (1788)  2  R.  R  7?4-  1 
H.  Bl.  81,  126  E  R.  49,  relied  upon, 

Mr.  Dipchand  Chandumal,  for  the  Plaint- 
iffs. 

Mr.  Gordhandas  A.  Kikla,  for  the  Defend- 
ant, 


I.  0. 1926] 


KHARAS,  R.  P.  V.  BHAWANJI  NARSI. 


395 


JUDGMENT.— "Can  the  plaintiffs  as 
auctioneers,  maintain  a  suit  for  the  re- 
covery of  the  value  of  the  goods  sold  at  an 
auction  sale11  ?  is  the  issue  on  which  I  have 
been  invited  to  pronounce  my  judgment 
piior  to  the  consideration  of  the  evidence 
as  to  the  merits  of  their  claim, 

Mr.  Kikla  for  the  defendant  urges  that 
they^  cannot.  His  argument  is  that  the 
auctioneers  in  the  present  suit  were  merely 
agents  for  known  principals,  and  as  accord- 
ing to  the  law  of  agency,  an  agent  can 
neither  sue  nor  be  sued,  the  present  suit  by 
the  plaintiffs  is  incompetent.  He  relies  on 
s.  230,jlndian  Contract  Act,  in  support  of  his 
contention.  He  contends  that  the  excep- 
tions to  the  section  have  no  application  in 
the  circumstances  of  the  present  case  as 
they  obviously  have  none,  nor  has  it  been 
established  that  there  was  any  contract  to 
the  contrary,  and,  therefore,  this  suit  must 
be  dismissed  at  the  very  threshold. 

There  is  no  definite  statutory  provision 
as  to  the  rights  and  liabilities  of  an  auc- 
tioneer, and  the  Indian  case  law  on  the 
point  is  very  meagre.  The  industry  of  the 
Pleaders  for  the  respective  parties  has  suc- 
ceeded in  unearthing  only  one  authoritative 
case  which  is  reported  as  Subramania 
Pattar  v.  Narayanan  Nayar([).  No  doubt 
an  auctioneer,  is  classified  as  an  agent,  but 
it  must  not  be  over-looked  that  the  nature 
of  his  duties  invest  him  with  certain  rights 
which  differentiate  him  from  an  ordinary 
agent.  In  his  capacity  as  an  auctioneer  he 
has  an  interest  in  the  goods  entrusted  to 
him  for  auction  sale.  He  has  alien upqn  them 
for  his  charges  and  advances.  His  custody 
of  the  goods  is  not  the  bare  custody  of  an 
ordinary  agent,  but  he  by  virtue  of  the 
auction  of  his  principal  acquires  a  special 
property  in  the  goods  which  are  in  his 
possession  for  the  purposes  of  the  auction- 
sale.  It  is,  therefore,  essential  to  discrimi- 
nate between  the  legal  possession  of  an 
agent,  and  that  of  an  auctioneer,  and  the 
interest  whicn  the  latter  acquires  in  the 
goods  that  are  entrusted  to  him  for  auc- 
tion sale  differentiate  his  legal  rights  and 
duties  from  those  of  an  ordinary  agent. 
The  English  authorities  are  very  explicit  as 
to  the  right  of  an  auctioneer  to  sue,  and  his 
liability  to  be  sued.  Mr,  Kikla  however 
argued  that  there  is  a  divergence  between 
the  Indian  and  English  law  as  to  legal 
position  of  an  auctioneer,  and  consequently 
the  English  authorities  could  not  be  accept- 
ed as  safe  guides  in  determining  the  law 


in  India.  It  will  appear  from  the  com- 
mentaries of  different  authors  on  the  Indian 
Contract  Act  that  in  their  opinion  therights 
and  liabilities  of  auctioneers  are  identical 
both  in  England  and  in  India.  In  Cunning- 
ham and  Shephard's  Commentaries  to  s.  230 
of  the  Indian  Contract  Act,  page  534,  there 
occur  the  following  pertinent  observations; — 
"The  case  of  an  agent  who  has  an  interest 
in  the  contract  made  by  him  as  such  is  not 
within  the  rule.  He  is  the  person  to  sue, 
and  he  is  liable  to  be  sued  on  the  contract. 
An  auctioneer  or  factor,  being  in  posses- 
sion of  his  employer's  goods  having  a  lien 
on  them  for  his  charges  and  advances,  is 
in  this  position.  An  auctioneer  may  be 
sued  for  non-delivery  of  the  goods  sold  and 
he  may  sue  the  buyer  for  the  price.11 

In  Pollock  and  Mulla'scommentarieson  the 
same  section,  page  742  there  are  the  follow- 
ing remarks  : — "It  is  settled  law  that  when 
an  agent  has  made  a  contract  in  the  subject 
matter  of  which  he  has  a  special  property 
he  may,  even  though  he  contracted  for  an 
avowed  principal,  sue  in  his  own  name. 
Such  is  the  case  of  a  factor,  and  of  an  auc- 
tioneer, who  'has  a  possession  coupled  with 
an  interest  in  goods  which  he  is  employ- 
ed to  sell,  not  a  bare  custody,  like  a  servant 
or  a  shopman1  and  a  special  property  by 
reason  of  his  lien1'.  The  above  observation 
are  no  doubt  based  on  the  English  author- 
ities, but  the  learned  commentators  of  the 
Indian  Contract  Act  say  that  the  like  rule  is 
laid  down  by  our  Indian  Courts  and  cite  Sub- 
rahmania  Pattarv. Narayanan  Nayar(l).  In 
this  case  it  was  held  that  "where  an  agent 
enters  into  a  contract  as  such,  if  he  has 
an  interest  in  the  contract  he  may  sue  in 
his  own  name". 

In  my  opinion,  therefore,  the  English  and 
the  Indian  law  are  analogous  on  the  point 
that  where  an  agent  has  an  interest  in  the 
contract  he  may  sue  on  that  contract  in  his 
own  name.  This  is  a  proposition  of  law  dedu- 
cible  from  the  English  authorities  and  I  see 
no  reason  for  its  non-application  in  India.  In 
Halsbury's  Laws  of  England,  Vol.  1,  page 
519,  para.  1063,  the  law  on  the  point  is  stated 
as  follows :—  "An  auctioneer,  may  by  reason 
of  his  lien  on  a  special  property  in  goods 
maintain  an  action  in  his  own  name  for 
the  price  of  goods  sold  ....  This 
right  to  sue  continues  as  long  as  the  auc- 
tioneer's lien  on  the  proceeds  of  the  sale 
exists,  and  cannot  be  affected  by  any  settle- 

(1;  24  M,  130. 


$96  SULTAN  AttEWL 

or  «et>-off  :be*tweeai    thfc  vendor 

'.  In  Williams  v.  bhllnujton  (2) 
fa  was  heM  lftttat  aa  anacrt0*ieer  employed  to 
«dH  the  goods  of  a  4feird  person  by  auction, 
may  maiataia  a*i  action  for  goods  sold  and 
Delivered  against  -a  buyer,  though  the  *ale 
was  at  th«  house  o£  «ueb  third  person,  and 
tfee  goods  were  taaown  to  be  his  property/1 
In  "the  present  case  though,  no  doubt,  the* 
principals  were  well  k**©wn,  the  plaintiffs 
were  employed  to  sell  the  goods  by  public 
auction.  They  did  so,  an-d  they  sue  for 
areeevery  of  the  value  of  the  goods  which 
were  knocked  down  to  the  defendant  as  the 
highest  bidder^  and  delivery  of  whteh  was 
givem  to  him,  the  plaintiffs  were  ia  posses- 
won  of  th«  gooK-ts  not  merely  uas  a  servant  or 
a  shopman1',  they  had  a  lien  on  them  and  on 
the  price  realised  for  their  oharges  and  ex- 
peases.  They,  therefore,  bad  an  interest 
in  them,  or  what  may  be  designated  as 
•special  property.  Their  position,  therefore, 
was  not  of  a  bare  agent,  but  of  agents  who 
had  an  interest  in  the  goods  which  were 
entrusted  to  them  for  sale.  Therefore,  by 
reason  &£  this  interest  I  hold  that  the  suit 
in  their  x>wn  name  is  competent. 

My  finding  on  this  isstae  is,  therefore,  in 
the  affirmative. 

z.  K, 

(g)  (1788)  2  R.  R.  724;  1  H.  Bl.  81;  126  E,  R.  49, 


.  MOHAMMAD  BSUF.  f#fc  I   O.  J086] 

for  a»Hing  for  partitiqti  of  Ms  t4toittM  **»^  <*Q  the 


MADRAS  HIGH  COURT. 

LETTERS  PATENT  APPEAL  No.  4  OF  1924. 

July  27,  1925. 
Present—Mr.  Justice  Odgers  and 

Mr.  Justice  Madhavan  Nair. 
SULTAN  ABDUL  KADIR  AND  OTHERS— 
PLAINTIFFS— 


versus 

MOHAMMAD  ESUF  ROWTHER  AND 
ANOfHUR  —  DEFENDANT**—  RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  11,  0.  VI, 
r.  17—Jies  jndicata—  $«ut  for  possession  of  whole  pro- 
pert  j/,  dismissal  of—  Subsequent  suit  for  possession  of 
share  on  same  title,  whether  barred—  Partition,  suit  for 
—  Amendment  of  plaint. 

Where  a  suit  for  recovery  of  possession  of  the  whole 
of  a  certain  property  based  on  a  claim  of  sole  owner- 
skip  is  dismissed,  a  subsequent  suit  based  on  the  same 
claim  of  sole  ownership  but  to  recover  only  a  portion 
ih»  r,n,f  w  ill  IT  l>a-  r«M  by  res  jndicata.  [p.  397,  col  1  ] 

\.;«.  r  .Vi,4i>»»«if/  Kowtber  v  Abdul  Rahaman 
7f,u"  •',  \'2\nl  Ciu-  207;  46  M.  135;  (1922)  M  W  N 
ft45;  17  L.  W.  188;  32  M.  L.  T.  82;  (1923)  A.  I.  R.  (M.j 
257,  followed.  v  ' 

Where,  however,  the  plaintiff  has  a  cause  of  action 


ground  of  co-ownership,   the-pfatn-t  ra^y,  in  a 

cas  \  be  allowed  to  be  amended  so   as  to  convert  the 

suit  into  one  for  partition,  [p.  i$7,  col  1  .] 

Letters  Patent  Appeal  agAitist  the 
judgment  arnd  xfe^re?e  of  SFr.  Chra!rles 
Spencer,  Oflg.  0.  J.,  m  S.  A.  No,  WO  !of 
1921,  reported  as  78  Itfd.  Oeis,  1^55,  p¥e- 
ferred  to  tfee  High  Conrt  against  a  decree 
of  the  Oourt  of  the  Saeoird  Addftional 
Subordinate  Judge,  TanJoWs  in  A.S.  No.  99 
of  1920  (O.  8.  No.  502  of  1&16  on  th-e  file  'of 
the  Oourt  jof  the  Oistrict  Munsif,  STega- 
patatn). 

Mr.  A.  Krishnaswatoi  Iyer,  far  Ibe 
lanls. 

Mr.  K.  V.  Krishnaswami    I^er,   for 
Respondents. 

JUDGMENT, 

Odgers,  J.—  This  is  an  Appeal  from 
the  judgment  of  the  learned  Officfo'Jng 
Chief  Justice  in  8,  A.  No.  940  of  the  1921 
which  was  in  turn  an  appeal  ftfofcn  the 
Second  Additional  Subordinate  Judy's 
Court  of  Tanjore, 

The  matter  came  before  Us  efehitf  hftd  be- 
fore the  vacation  tvh^h  we  heard  ftr^^Trtents 
at  considerable  length.  We,  however,  de- 
ferred giving  judgment  in  view  el  represen- 
tations that  were  m&de  to  us  tfeat  th^re  was 
a  strong  probability  of  the  patties  comifcg 
to  terms.  We  were  informed  just  before 
the  beginning  of  the  vax^atioft  th&t  these 
negotiations  had  broken  dowh  and  we, 
therefore,  posted  the  casefor  fresh  argument 
after  the  vacation. 

The  litigants  are  Muhammadans,  the 
plaintiffs  Nos.  1  and  2  being  the  children 
and  the  3rd  plaintiff  the  wife  of  one  Sheik 
Muhammad  Rowther.  The  defendant  is 
the  brother  of  Sheik  Muhamthad  Rowther 
uncle  of  the  piesent  male  plaintiff.  The 
subject  of  the  litigation  is  certain  pwp'erty 
and  this  has  been  a  fruitful  subject  or  tcn- 
troversy  between  the  parties  ot  their  ances- 
tors in  the  past.  In  0.  S.  No.  15  of  l£t)5 
Sheik  Muhammad  Rowther  through  whom 
the  plaintiffs  claim  filed  a  Btiit  against  the 
present  defendant  his  brother  for  diiltub- 
ance  of  his  possession  of  thte  suit  ptofcftrty. 
The  defendant  ptead^d  that  ths  property 
was  not  the  exclusive  property  of  thie  pibliit- 
iff  but  belonged  to  the  wholfe  fatnily,  the 
plaintiff  being  entitled  ohly  to  a  QWArtfer 
share.  Theplaintift  put  the  defend  tnt  on 
iiisoath  which  djstfendatit  took  and  \he 
suit  was  thereupon  di&rinssed  withbti  trial. 
Ten  years  afterwards  In  0.  S.  No,  39  of 


«W#?4« 

a£[  th^e  daa^bUra-of  ^slater  of  the  family 
sued,  h$i;  uncl^a  and  auittis  for  a  partition 
^£  ke$  sh^re.  Tfha  present  plaintiff  was  the 
Mh  defendant  ia,  that  suit  and  the  present 
defendant  was  the  Qth  defendant.  The 
plaintiff  contended  that  he  was  the  owner 
of:  tfh$,  property  aadid  also  the  6th  defend- 
ant, but  tha  'Court  finding  that  the  property 
belonged  to  Ha&  §th  defendant  who  is 
the  praaeat  plaintiff,  the  suit  was  dismis- 
sed 

NCNF  tbte  present  suit  is  O,  8.  No.  502 
pf  1&1.&  and  thk  is  a,  suit,  to  use  a  neutral 
teem  for  the  present,  for  recovering  the 
three  qu^rteraahare  belonging  to  the  plain  t- 
iife,  3Jha  plaint  recognises  that  owing  to 
the  HtissAiou  in  0,  a  No.  15  of  19<h  the 
plaintiff  cannot  now  say  that  he  is  entitled 
to,  the  wk&lQ  property  and  the  question 
before  ua  has  been  first,  whether  the  plaint 
is.  iu  fact  oi*e  for  partition  of  bis  property 
ajqtd  pr  whether  the  suit  is  barred  by  reason 
of  O>  8.  No.  15  of  1905.  There  is  no  doubt 
that  the  suit  of  1906  was  based  on  owner- 
ship and  MX.  K.  Y.  Kriahnaswami  Iyer's 
argument  for  the  respondent  in  this  case 
is  that  the  suit  is-,  also  based  on  ownership. 
The  plaintiff  failed  in  the  suit  of  1905  be- 
cause he  failed  to  prove  that  the  whole  of 
the  property  was  his  or  that  the  property 
wasceatireiy  his.  The  learned  Officiating 
Chief  Justice  in  his  judgment  observes  that 
the  suit  does  not  purport  to  be  a  suit  for 
partition^  ef  property  between  co-owners. 
I  think  what  the  learned  Chief  Justice 
meaua  ia  that  the  plaint  is  practically  a 
plaint  for  the  recovery  of  the  property 
(minus  a  certain  proportion)  on  the  score 
ot  ownership  residing  in  the  plaintiff.  On 
a  careful  consideration  of  the  matter  which 
apeaKiu^  for  myself  has  caused  some  diffi- 
culty, lam  not  prepared  to  say  tjaat  the 
learned  Officiating  Chief  Justice  was 
wrong,  K  thatis-sOi  i  e,  if  the  suit  of 
190«>  ia  which  the  plaintiff  claimed  the 
whole  and  if  the  present  auit  of  1918  in 
which  without  claiming  the  whole  he 
still  baaed  his  claim  on  his  ownership 
are  so  regarded;  there  can  be  no  doubt 
that  the  suit  of  1305  bar»  the  plaintiff^ 
claim  in  the  present  suit.  Thia  seems  to 
have  been  the  opinion  of  the  learned  Officiat- 
ing Ohiafi  Justice  baaing  his  judgment  ou 
Naina  Muhammad  Rewther  v.  Abdul  ttaka- 
man  Rpwtter  (1)*  He  thought,  however,  that 


..  Gas.  207;  48  M,  135:  (1922)  M.  W,  N,  8*5? 
"   $*  K:  L.   T,  8^  (im)  A*  I  &  (H) 


V>  MOHAMMAD  BSt?tf,  397 

on  the  plain  admission,  by  the  appellants 
that  a  suit  for  partition,  if  properly  con- 
stituted, would  lie,  the  proper  course  to 
take  was  to  allow  an  amendment  of  the 
plaint  and  for  the  plaintiffs  to  be  allowed  to 
rectify  the  mistaken  course  on  which  they 
have,  I  think,  plainly  embarked.  I  do  not 
disguise  that  my  first  feeling  was  that  a 
proper  decision  had  been  come  to  by  the 
learned  District  Munsif,  and  Sui>oniinnto 
Judge.  The  judgment  of  tlieDiMrioi  Mu:»sif 
particularly  s-trikes  me  as  luminous  and  ex- 
haustive. But  I  see  the  difficulty  and  iucon- 
venieiice  which  even  if  the  state  of  the 
pleadings  allowed  it  this  course  would  have 
entailed.  It  seems  no  doubt  that  there  are 
ladies  in  this  family  who  are  entitled  to 
shares  and  who  are  now  at  present  on  the 
record  and  if  we  divided  this  property  now 
among  the  plaintiff  and  the  defendant  in 
whatever  proportions,  it  is  extremely  likely 
that  we  should  be  embarrassing  these  ladies 
in  the  recovery  of  their  proper  shares.  I 
think,  therefore,  if  I  may  say  so  with  respect, 
that  the  proper  course  was  followed  by  the 
Officiating  Chief  Justice  and  that  this 
Letters  Patent  appeal  must  be  dismissed 
with  costs. 

Madhavan  Naip,  J.— I  agree,  The 
facts  of  the  case  are  somewhat  complicated 
but  for  the  purpose  of  this  Letters 
Patent  appeal  the  real  question  requir- 
ing consideration  is  whether  the  plaint 
in  the  case  is  one  for  partition  of  the 
suit  property  between  the  plaiQtiff  and 
the  defendant  aa  co  owners  thereof.  The 
parties  are  Muhammadans.  The  plaintiff's 
case  is  that  the  property  ia  absolutely  his 
own,  and  that,  sinpe  the  defendant  asked  for, 
two^ eighths  of  that  property  inO.S  No,  15 
19D5,  he  is  willing  to  let  hiqa  have  tjbat 
portion,  with  the  result  that  according  tp 
him  he  is  now  on  lit  led  u>  claim  six-cigijilis. 
i»  e,,  the  remainder  of  the  suit  properly. 
A  perusal  of  the  plaipt  clearjy  shpws  that 
the  plaintiff  has  based  his  title  on  his  ex- 
clusive f  svnership,  then  the  allegations  in 
the  plaint  would  certainly  be  different; 
the  plaintiff  will  not  allege  that  the  pro- 
perty ip  exclusively  l*is  own,  A  suit  'for 
partition  baaed  upoa  plaints  ex4w$iv$ 
ownership  of  the  property  is  admittedly 
barred  in  view  of  'the  decision  in  O.S,  No.  16 
of  1.905,  Howev.er,  it,  is  oo&Qede4  M*a£  the 
plaintiff  has  a  cause-  of  aotipn  for  asiyii^ 
for  partition  on  ther  ground  of  co-ownership. 
Tt*e  learned  Officiating  Chiefr Justice 
therefore,  allowed  aa  wneudmeut  of 


MftTHUVENKATARAMA  feBDDIAR  3,  OFFICIAL 

plaint.  In  this  view,  it  becomes  necessary 
that  the  sisters  of  the  plaintiff  who  are 
alive  and  their  children,  if  any,  will  have 
to  be  made  parties  to  the  suit.  The  learned 
Officiating  Chief  Justice  has  given  specific 
directions  that  this  should  be  done  and  that 
the  defendant  should  be  allowed  to  alter 
his  written  statement  ill  whichever  way  he 
pleases.  In  my  opinion,  the  course  adopt- 
ed by  the  learned  Officiating  Chief  Justice, 
if  I  may  say  so  respectfully,  is  certainly* 
right.  The  Letters  Patent  appeal  must, 
therefore,  be  dismissed  with  costs, 
v.  N.  v.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No.  1  OF  1925. 

September  24, 1925. 
Present: — Mr.    Justice    Devadoss  and   Mr. 

Justice  Waller. 
MUTHUVENKATARAMA  REDDIAR 

AND  OTHERS — PETITIONERS — APPELLANTS 

versus 

THE  OFFICIAL  RECEIVER,  SOUTH 
ARGOT  AND  OTHERS— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1008),  s.  M  (c)— 
Provincial  Insolvency  Act  (V  of  1920),  8.  28  (5)— 
Agriculturist,  who  is— "House  occupied  by  agricul- 
ttirwt"  meaning  of. 

The  word  'agriculturist1  in  s.  60  (c;,  C.  P,  C.,  is  not 
used  in  its  etymological  sense,  it  is  used  to  denote  a 
person  making  his  living  by  tilling  the  soil,  in  other 
words,  one  whose  sole  means  of  livelihood  is  gained 
by  cultivating  land  and  does  not  necessarily  mean  only 
a  person  who  works  with  his  hands.  The  protection 
from  attachment  under  the  clause  is  given  only  to 
small  owners  of  land  as  well  as  actual  tillers  of  the 
soil.  [p.  398,  col  2;  p.  399,  col  1  ] 

A  large  landed  proprietor,  even  though  his  sole 
income  is  from  land,  is  not  an  "agriculturist11  within 
the  moaning  of  s.  60  (c),  C.  P,  C  ,  and  is  not  entitled  to 
protection  thereunder,  [p.  399,  col.  1  ] 

Jivan  tihagav.  Jlira  Bhaiji,  12  B  363,  6  Ind.  Dec. 
(N.  s  )  726,  followed. 

The  exemption  from  attachment  under  cl  (c)  of 
s.  60,  0.  P.  C.,  is  given  in  respect  of  a  house  or  build- 
ing occupied  by  an  agriculturist,  i.e.,  a  house  dwelt  in 
by  the  agriculturist  as  such,  and  necessary  for  his 
effectively  pursuing  his  occupation  as  an  agriculturist. 
[ibid.] 

A  mansion  in  a  large  village  in  which  the  owner 
lives,  even  though  he  has  no  other  source  of  income 
except  that  from  land,  is  not  such  a  house  as  is  con- 
templated by  cl.  (c)  of  e.  60,  0  P.  0  ,  nor  is  the  house 
of  an  ordinary  agriculturist  situated  at  a  consider- 
able distance  from  the  land  which  he  cultivates  and 
which  is  not  necessary  for  effective  or  convenient 
cultivation  of  the  land.  [p.  399,  col,  2,] 


[92  I.  0. 19S6] 

Appeal  against  an  order  of  the  District' 
Court,  South  Arcot,  at  Cuddalore,  dated 
the  17th  of  November  1924,  in  I.  A.  No.  399 
of  1924,  in  I.  P.  No.  14  of  1922. 

Mr.  S.  T.  Srinivasagopalachari,  for  the 
Appellants. 

Mr,  C.  Padmanabha  lyengar,  for  the  Re- 
spondents. 

JUDGMENT. 

Devadoss,  J.— The  appellants  wore 
adjudicated  insolvents  on  their  own  peti- 
tion in  1922.  They  applied  to  the  District 
Court  on  24th  July  1924  for  a  declaration 
that  the  two  items  of  property,  a  terraced 
house  and  a  cattle-shed,  did  not  vest  in  the 
Official  Receiver.  The  District  Judge  dis- 
missed their  petition,  and  they  have  pre- 
ferred this  appeal. 

The  contention  of  the  appellants  is  that 
they  are  agriculturists  and  the  two  items 
which  are  buildings  which  they  occupied 
are  exempt  from  the  operation  of  the  Insol- 
vency Law  by  reason  of  s.  28,  cl.  5  of  the 
Provincial  Insolvency  Act.  The  appellants 
are  large  landed  proprietors  owning  about 
300  acres  of  land  worth  nearly  a  lakh  and 
their  debts  amounted  to  Rs.  1,35,000  and 
odd.  The  two  items  are  valued  by  the 
appellants  -themselves  at  Rs.  (5,000  and 
Rs.  1,000  respectively.  Under  s.  28,  cl.  5 
all  properties  which  are  exempt  by  reason 
of  s.  60  of  the  C.  P.  C.  or  by  any  other  law 
from  liability  to  attachment  and  sale  in 
execution  of  a  decree  do  not  vest  in  the 
Official  Receiver  and  are,  therefore,  not 
liable  to  be  sold  to  satisfy  the  claims  of  the 
creditors.  The  question  for  determination 
is  whether  the  two  buildings  come  within 
s.  60,  cl.  (c)  of  the  C.  P.  C.  Clause  (c)  is  in  • 
these  item$:  — 

"Houses  and  other  buildings  with  the 
materials  and  the  sites  thereof  and  the  land 
immediately  appurtenant  thereto  and  ne- 
cessary for  their  enjoyment  belonging  to 
an  agriculturist  and  occupied  by  him." 

In  order  to  claim  exemption  under  s.  60, 
cl.  (c)  two  points  should  be  found  in  favour 
of  the  appellants,  (1)  the  appellants  are 
agriculturists  within  the  meaning  of  cl.  (c) 
and  (2)  the  house  and  cattle-shed  are  such 
as  are  mentioned  in  cl.  (c). 

The  term,  "agriculturist",  means  etymolo- 
gically  one  versed  in  agriculture  and  is  not 
used  in  cl.  (c)  in  its  etymological  sense,  but 
it  is  used  to  denote  a  person  making  his 
living  by  tilling  the  soil,  in  other  words  one 
whose  sole  means  of  livelihood  is  gained  by 
cultivating  land  and  does  not  necessarily 


[92  I.  0.  1926]  MUTatftrrmTABAMA,  RtiDDIAn  i).  OFFICIAL  RECEIVER. 


399 


mean  only  a  person  who  works  with  his 
hands.  But  it  means  and  includes  a 
small  holder  of  laud  who  tills  the  soil  and 
cultivates  it.  Clause  (c)  has  to  be  read  in 
the  light  of  cl.  (1)  and  (2).  What  is  exempt 
from  attachment  is  what  is  absolutely  neces- 
sary to  enable  a  person  to  live  such  as 
wearing  apparel,  cooking  vessels,  bedding, 
etc.,  tools  of  artisons,  implements  of  hus- 
bandary,  etc.  A  large  landed  proprietor, 
eveu  though  his  sole  income  is  from  land, 
is  not  an  agriculturist  within  the  meaning 
of  cl.  (c).  Mr.  Srinivasagopalachariar's 
contention  is  that  a  man  whose  sole  income 
is  from  land,  whatever  its  extent  may  be, 
whether  he  cultivates  the  land  himself  or 
leases  it,  is  an  agriculturist.  If  this  is  the 
correct  meaning  of  the  word  "agriculturist" 
a  man  owning  say,  1,000  acres  of  wet  land 
is  an  agriculturist  provided  he  has  no 
other  source  of  income.  It  could  not  have 
been  the  intention  of  the  Legislature  to  give 
protection  to  such  people  The  protection 
is  given  to  small  owners  of  land  as  well  as 
actual  tillers  of  the  soil.  The  word  "agri- 
culturist1' must  be  interpreted  in  a  strict 
sense.  In  Jivan  Bhaga  v.  Hira  Bhaiji  (1) 
West,  J.,  observes 

<llt  was  for  agriculturist  in  the  strictest 
sense  and  for  an  agriculturist  in  that  sole 
character  that  the  protection  of  s.  266, 
cl.  (c)  of  the  C.  P.  C  ,  was  intended."  We 
hold  that  the  appellants  are  not  agri- 
culturists within  the  meaning  of  cl.  (c)  of 
s.60. 

Even  if  the  contention  of  the  appellants 
that  they  are  agriculturists  is  upheld,  they 
Would  not  succeed  in  the  appeal  unless 
they  make  out  that  the  house  and  cattle- 
shed  are  houses  and  buildings  within  the 
meaning  of  cl.  (c).  In  order  to  make  out 
that  the  house  and  cattle-shed  come  within 
the  meaning  of  cl.  (c),  they  must  beshown 
to  have  been  occupied  for  purposes  of 
agriculture,  that  is,  in  order  to  enable  the 
owner  or  occupier  to  cultivate  land.  The 
expression  "and  occupied  by  him"  gives 
the  clue  to  the  meaning  of  cl.  (c),  i.  e.t  that 
they  are  occupied  by  the  agriculturists  as 
auch,  as  houses  or  buildings  as  are  necessary 
fpr  pursuing  the  occupation  of  the  agricul- 
turists—a shed  in  a  field  or  a  house  in  the 
midst  of  fields  which  is  occupied,  so  that 
the  agricultural  occupation  may  be  carried 
on  effectively  and  without  loss  of  time,  or 
in  other  words  without  such  buildings  and 

.    (1)  12  B,  363;  6  IndL  Deo,  (N,  s.)  726. 


houses  the  agricultural  operations  would 
suffer.  A  mansion  in  a  large  village  in 
which  the  owner  lives,  even  though  he  has 
no  other  source  of  income  except  that  from 
land,  is  not  such  a  house  as  is  contemplated 
by  cl.  (c)  nor  is  the  house  of  an  ordinary 
agriculturist  situated  at  a  considerable 
distance  from  the  land  which  he  cultivates 
and  which  is  not  necessary  for  effective  or 
convenient  cultivation  of  the  land.  A  man 
may  have  a  house  in  a  town  and  a  small 
holding  at  a  considerable  distance  from  the 
income  of  which  he  maintains  himself. 
As  the  house  in  the  town  is  not  occupied 
by  him  for  purposes  of  agriculture,  it  is  not 
exempt  from  attachment  and  sale  under 
cl  (c). 

We  are  glad  to  find  that  the  view  that  we 
hold  is  in  accordance  with  the  view  expres- 
sed by  West  and  Nauabhai  Haridas,  JJ.,  in 
Radhakisan  Ilakumji  v.  Balvant  Ramji  (2). 
The  learned  Judges  observes  atjpage  531*:  — 

"The  exemption  is  of  a  house  or  building' 
occupied  by  an  agriculturist,  and  this,  we 
think,  means  a  house  dwelt  in  by  an  agri- 
culturist as  such,  and  the  farm  buildings 
appended  to  such  dwelling.  It  does  not 
include  other  houses,  which  in  one  sense 
may  be  occupied;  what  is  meant  is  a 
physical  occupation,  by  an  owner,  of  his 
house  as  a  dwelling  appropriate  or  con- 
venient for  his  calling." 

The  house  and  cattle  shed  are  in  the 
midst  of  a  village  containing,  it  is  said, 
about  300  houses  and  cannot  be  said  that 
they  were  occupied  by  the  appellants  for 
purposes  of  agriculture  and  they  do  not 
come  within  the  meaning  of  "houses  and 
other  buildings  belonging  to  an  agricul- 
turist and  occupied  by  him"  within  the 
meaning  of  s.  60,  cl.  (c)  of  the  C.  P.  0. 

The  decision  in  Devara  Hegde  v.  Vaikunt 
Subaya  Sonde  (3)  does  not  help  the  appel- 
lants. The  learned  Judges  cite  with  ap- 
proval the  passage  in  Radhakisan  Hakumji 
v,  Balvan*  Ramji  (2)  extracted  above  and 
hold  that  if  the  building  came  within  the 
exemption  given  by  s.  60,  cl.  (c)at  the  time 
of  the  attachment,  the  benefit  thereof, 
would  not  be  lost  by  the  death  of  the  judg- 
ment-debtor. 

That  the  present  contention  is  an  after- 
thought is  clear  from  the  fact  that  the  appel- 
lantsmeution  the  two  items  in  theirschedule 


357. 


7  B.  530;    8  Ind.    Jur.  146;    4  Ind.  Dec.    (N.  s.) 


(3)  39  Ind.  Gas  631);  41  B.  475;  19  Bom.  L.  R.  281. 

~  '       '      " 


4C6. 


SDB&UH  QOUNDAN 


as  assets.  avaiLa-ble  for  distribution  among 
the  creditors.  and  delivered  possession 
thereof  to  the*  Official  Receiver  two  years. 
before  t&ey  made  the  application  to  the 
lovyer  Court. 

la  tike  result  the   appeaj  fails  and  13  dis- 
mWed  mth  costs. 

W&UWVjr,—  I  do  not  consider  that  ap- 
pellant can  ai*y  longer  be  described  as 
agriculturists  Theiu  land  haa  vested  in 
the  Offiqiai  I&aceiye*  a«nd  there  is  nothing, 
toshpvy  that  th&y  cultivate  any  Qther  lai*d 
as  lafeDttreis.  or  tenants,  A,  house  to  be 
exeo&pt  feoHj.sttachD&ent  under  s.  60  of,  th$ 
0.  ?.  C.,  ru.uot  b^lpng  to  Q.r  be  occupied  by 
aa  agricukuript  a^suoh,  i.  e.,  for  the  pur- 
pose of  agriculture.  Apart  from  that,  ap- 
B)AP0d<  th$  Official  Receiver  in 
of  gpodfr  before  the  adjudica- 
tion %p  Idp  npt  think  that  they  should 
now  b#  flowed,  to  plead  exemption.  I 
agree  ibat.  tb£  appeal  shotuld  be  dismissed 


Appeal  dismissed. 


v.  N-  v. 
z,  K, 


HIQR  COURT. 

CIVIL  REVISION  PBIITION  No.  703  OF  1923, 

August  28,  1U25. 
Present:—  Mr.  Justice  Phillips. 


No.  7"--  PfcT;rnoNBB 

versus 

SOXNIMAUVJ  GOUNDAN  AND  OTHERS— 
Pi^AiNTiFFiMNrx  DEFENDANT  No.  9— 

RESPONDENTS. 

Execution  o/  decree—  Partition  decree—  Partition  not 

" 


,':"  .v.i  16  u 
lu, 


(.'?•  -.i' 


a  decree  for  partition,  the  Executing 
power  to  effect  a  partition  which  has  not 
ordered  by  the  decree  and  for  which  there  is  no 
property  framed  'appJie&tion  before  the  Court-.  In  such 
a  matter  no  cqnseot  of-  parties  can.give  the  Court 
!.,/:;.:,.,  i  4ai.coi.lJ 

LViiujii.  ,mder  s.  115  of  Act  V  of  1908, 
pl.sk  107  ot  th#  Government  of  India  Act, 
prayii>g>he  High  Court  to  revise  an  order, 
of  the  Court  of  the  Subordinate  Judge, 


I, 


Pi 


in  Q.  8.  No.  3.  of 


Mr.  S.  Subramaniz  Iyer,  for   the  Peti- 
tioner. 
Mr.  £  UMhMh  U&daliar,,  for,  th0r 


OOUNDAN. 

iff  obtained^  a  decree  declaring  tha*t  he 
th,e  9th  defendant  wei;e  each  entitled  to  a 
moiety  of  the  plaint  B  aad*  E  schedule 
plenties.  In  this  petition  w,e<  are  only 
cpncerned  with  the  B  schedule  propejtje& 
It  would  appear  that  alter  that  decree  ^w 
passed,  the  plaintiff  and  the*  9th  defend- 
ant were  put  in  possession  of  the  B  schedule 
properties,  for  a  statement  of  the  Vakil 
for  defendants  was-  put  into  Court  stating^ 
11  that  the  plaintiff  and  the  9th  de&ndanfc 
are  in  possession  of  the  properties  mention- 
ed, in  the  B  schedule  for  the  last  twayeajss* 
the  defendants  Mos.  5  and  12  have  no 
objection  to  their  continuing  in  possession 
and  that  the  defendants  haye  no  objection 
to  their  taking  possession  through  Count.'* 
On  that  memo,  the  plaintiff,  and  the  9th 
defendant  put  in  a  memo,  on  the  19th  Sep- 
tember 1922  asking  that  the  properties 
should  be  delivered  by  Court,  but  they 
asked  that  such  of  the  survey  numbers  in 
the  B  schedule  as  belonged  to  their  share 
exclusively  should  be  delivered  to  them 
but  as  regards  the  survey  numbers-  ia 
which  they  had  only  a  share  they  asked 
that  B  and  C  schedule  properties  should'be 
put  together  and  partition  effected  accord- 
ing to  good  and  bad  qualities*  There  was 
HO'deeree  for  sush  a  partition.  The  plaint- 
iff in  his  plain*  bad  not  even  hinted  that 
the  B  schedule  properties  wore  not  ascer- 
tainable  and  in  the  written  statement  it 
was  alleged  that  the  partition  had  taken 
place  years  befora  and  that  the  prppetrties 
had  been  allotted  to  the  varioua  sharers 
In  Ex.  A  also  the  plaintiff's  father  purport- 
ed to  give  possession  of  the  B,  schedule, 
properties,  It  ig,  I  think,  abundantly  clear 
from  these  pleadings  that  there  was, a  parti- 
tion by  metes > and  bounds  and  the  plaint- 
iffs application  to  effect  a  further  partition 
of  some  of  the  B  and  C  schedules  pro- 
perties is  not  at  $1L warranted.  Apart,  from 
that  the  Court  had  qo  jurisdiction  to  effect 
such  a  partition  The  order  of  the  petition 


15  With  the  consent  of  ttye  Vakil  far  der 
fendants  Nos.  1, 5,  7  and  12,  I  order  that 
properties  to  B  schedule  1,  la  Ib  as  givcm 
in  their  petitjon.be  delivered  to  the  pluinn/f 
and  9th  defendant  and  that  a  Commis- 
sioner be  appointed  to  divide  the  properties, 
in  B  schedule  II  as  suggested  'in  their 
petition.1' 

By  "  their  "  I  assume  that  the  Subordi- 
nate Judge  meana  plaintiff. and  8th  defend*. 


[92  I.  0. 19261       -  RAM  NBWZ  v. 

ant  who  in  their  memo,  had  divided  B  sch- 
edule properties  into  D  schedule  1,  Ja,  I/> 
and  II.  This  consent  appears  to  be  based 
on  an  affidavit  filed  by  the  5th  defendant 
and  docketed  as  being  on  behalf  of  defend- 
ants Nos.  1,  5,  7  and  12.  In  the  affidavit  the 
5th  defendant  alleged  the  prior  partition 
and  stated  at  the  end  of  tho  affidavit :  — 

11  The  plaintiff  and  9th  defendant  desire 
to  have  a  diviskm.  We  have  no  objection 
to  do  so." 

Presumably  the  Vakil  who  appeared  rais- 
ed no  objection  to  the  Commissioner  ap- 
pointed. It  is  on  this  statement  of  consent 
that  the  jurisdiction  must  be  founded  ; 
otherwise  the  Court  had  no  power  to  effect 
a  partition  which  had  not  been  ordered  by 
the  decree  and  for  which  there  was  no 
properly  framed  application  before  the 
Court.  No  consent  of  parties  could  give 
the  Court  jurisdiction  in  a  matter  like  this, 
for  the  question  was  not  pending  before 
the  Court  and  had  never  been  put  in  issue 
in  any  proceedings.  1  may  also  observe 
that  when  the  Commissioner  had  sent  in  a 
report,  objections  were  ordered  to  be  filed 
before  the  5th  January.  On  the  5th  Jan- 
uary, the  Court  was  closed  on  account  of 
plague.  It  does  not  appear  when  it  was 
re-opened  but  an  affidavit  was  filed  on  the 
day  when  the  petition  was  next  taken  up 
and  rejected  as  being  out  of  time.  It  is 
not  quite  clear  whether  it  was  filed  on  the 
day  the  Court  re-opened  or  not,  and  con- 
sequently I  cannot  say  that  this  order  is 
incorrect,  but  it  seems  strange  that  this 
objection  to  a  division  by  the  7th  defend- 
ant, the  present  petitioner  who  had  never 
consented  to  it  specifically  should  have 
been  rejected  on  this  ground.  I  must  set 
aside  the  Subordinate  Judge's  order  of  the 
3rd  March  for  delivery  according  to  the 
partition  made  by  the  Commissioner,  Re- 
spondents will  pay  the  petitioner's  costs  in 
this  petition, 

V.  N.  v.  Petition  allowed. 

Z.  K. 


NANKOd. 


401 


ALLAHABAD  HIGH  COURT. 

LETTERS  PATENT  APPEAL  No.  142  OP  1924. 

October  22,  1*25. 
Present:—  Sir  Grimwood  Hears,  KT.,  Chief 

Justice,  and  Mr.  Justice  Lindsay. 

RAM  NEWAZ  AND  ANOTHER — PLAINTIFFS — 

APPELLANTS 

versus 
NANKOO  AND  OTHERS — DEFENDANTS  — 

RESPONDENTS. 

Transfer  of  Property  Act  (IV  of  1882),  s.  74— 
Perpetuities,  rule  against—Transfer  on  extinction  of 
descendants. 

A  transfer  of  property  in  favour  of  another,  to  take 
effect  on  the  extinction  of  the  transferor's  line  of  male 
descendants,  is  against  the  law  of  perpetuities  and 
cannot  be  given  effect  to.  [p.  402,  col.  1.] 

Letters  Patent  Appeal  against  a  judgment 
of  Mr.  Justice  Kanhaiya  Lai,  dated  the  3rd 
July  1924,  in  S.  A.  No.  265  of  1923,  printed 
as  82  Ind,  Cas.  320. 

Messrs,  llaribans  Sahai  and  P.  L.  Barter ji, 
for  the  Appellants. 

Mr.  Gulzari  Lai  and  Dr.  K.  N.  Katju,  for 
the  Respondents. 

JUDGMENT.— This  is  the  appeal  of 
the  plaintiffs  who  had  instituted  a  suit  as 
reversioners  of  one  Ram  Charan  for  the 
possession  of  2  bighas  of  land.  In  1884  Ram 
Chai  an  appears  to  have  been  in  difficulties 
and  he  had  a  9-pie  odd  share  in  a  certain 
village.  He  executed  a  sale-deed  which  has 
had  to  be  construed  in  all  the  Courts  and 
on  the  proper  construction  of  that  sale-deed 
the  rights  of  the  parties  depend.  The 
plaintiffs  are  the  reversioners  but  the  de- 
fendants are  the  purchasers  of  whatever 
rights  the  vendee  had.  The  real  point  is 
whether  the  sale  was  an  out-and-out  sale  of 
the  9-pie  odd  share  or  whether  it  was  a  sale 
by  the  vendor  of  the  9-pie  odd  share  minus 
the  2  bighas  now  in  dispute.  The  docu- 
ment lies  before  us  and  it  starts  by  Ram 
Charan  stating  that  he  had  a  9-pie  3-kauri 
2-dant  zemindari  share  in  the  property  and 
then,  after  usual  formal  parts,  says  that  he 
has  absolutely  sold  with  the  exception  of 
2  bighas  of  nankar  land  numbered  as  below 
(1460)  the  entire  property.  Pausing  there 
and  putting  the  sale  in  the  plainest  possible 
terms,  it  was  a  sale  of  the  9-pie  odd  share 
minus  the  2  bighas  specifically  numbered. 
At  a  later  portion  of  the  deed  he  says  : — 

"Let  this  be  known  that  the  2  bighas  of 
nankar  land  which  I  have  excluded  from 
the  sale  shall  remain  iii  my  possession  for 
life  and  after  my  death  in  the  possession  of 
my  aulad  khas  without  payment  of  rent  or 
Government  revenue.  I  or  my  lineal 


26 


402 


scendants  have  no  right  to  transfer  the 
property  excluded  either  permanently  or 
temporarily.  If  none  of  my  lineal  descend- 
ants is  alive  in  my  family  then  the  said 
land  shall  be  declared  to  be  the  own  pro- 
perty of  the  vendee  and  his  heirs  and  the 
persons  of  my  family  shall  have  no  claim  to 
the  same." 

It  remains  only  to  notice    one  further 
reference  to    this  land.    In  the  detail  we 
find  the  sharq  sold,  viz.,  9-pie  3-kauri  2- 
dant   rtankar   land    excluded  from  the  2 
bighas  No.  1460.    The  construction  that  we 
put  upon  the  passages  that  we  have   read 
is    that  the  vendee    got    on  the   12th  of 
February  1884,  the  date  of  the  sale,  the 
9-pie  odd  share  with  No.  1460,  the  2  bighas 
definitely  excluded,   but  that  they  had   a 
possibility  of  becoming  its  owners    at  a 
future  date  provided  that  provision  was  cne 
which  the  law  would  recognize.     We  can 
eee  in  the  dccument  no  indication  what- 
ever of  the  vrrdces  having  acquired   the 
whole    of    the    property     in     the    whole 
of     the    land    including    the  tuo    bighas. 
What  we  do  find  is  an  acquisition   of  the 
whole  of  the  9-pie  odd   ehaie  except  that 
particular  area   of  2  bighas  numbered  1460. 
Now  if  that  be  so,  what  is  the  position 
when  a  contest  arises  between  the  nearest 
reversioners    and    the    successors    of    the 
vendees?      The    position   was    that  Earn 
Oharan  having  died,  he  was  succeeded  by 
bis  eon  Mauzzam  Ram,  who  in   turn  died 
childless  in  1918,    and,    therefore,   these    2 
bighas  of  land  would    as  it  happened    if 
there  was  no  law  to  the  contrary,  becoire 
the  property  of  the   vendees  within  a  life 
or  lives  in  being   and     twenty-one  years 
after.    But  the  fact   that  it  happened   to 
fall  in  within  the  legal  limitation  is  not 
the  test  which  is  to  be  applied  to  these 
cases,     vvhat  you  have  to  see  is  whether 
the  event  can  be  postponed  to  beyond  the 
period  of  a  life  or  lives  in  being  and  21 
years  after  and  not  what  in  fact  happened 
N&w   applying  that    test    it    is  perfectly 
evident  that  these  2  bighas  of  nankar  land 
might  ttave  remained    with  the  lineal  de- 
scendants of  Bam  Charan  for  ICO  or  200 
years,  and  that  being  so,  we  are  of  opinion 
that  this  was  a  condition  repugnant  to  the 
law  and  being  so  repugnant  to  the  law  the 
defendants  could  not  set  up  this  document 
on  which  they  rely  as  entitling  them  to 
possession  of  the  property.    We  are,  there- 
fore,  of  opinion  that   the  plaintiffs  were 
fight  mbriirgiDg'tliie  action  and  that  the 


MOtTLfiSWARA  PRASADA  D.  YADAVALLl  KAMBSWARA.  [92  I.  0. 


decision  of  the  learned  Judge  of  this  Court 
must  be  set  aside  and  the  decree  of  the 
First  Appellate  Court  which  confirmed  the 
judgment  of  the  Munsif  must  be  restored 
with  costs  and  fees  in  this  Court  on  the 
higher  scale. 
N.  M.  Appeal  allowed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1867  OF  1923. 

August  27, 1925. 

Present:— Mr.  Justice  Phillips. 

Sree  Rajah  VA8UREDDI  SKEE 

CHANDEA  MOULESWARA  PRASADA 

BAHADUR  MANJSJL8ULTAN 

Zamindar  GARU  (MUKTYALA  ESTATE) 

— PLAIKTJFF — APPELLANT 

versus 

YADAVALLI  KAMESWARA 

SOMAYAJULU  AND  OTHERS—  DEFEKDANTS 

—RESPONDENTS. 

Madras  Estates  Land  Act  (I  of  ]008);f.  ]51— Eject- 
ment— A^nculiinal  land—Sale  by  tyot  Jor  IwildiTg 
purposes—  Actual  building  only  en  tin  all  porttVn — 
Value,  as  a$rtciillural  land,  whether  itn failed—  Land- 
lord's right  to  eject. 

\Vhue  a  ryot  &ells  the  major  portion  of  an  agiicxil- 
tuial  holding  for  building  jurjcFc e  lie  in  effect  c<n- 
vertw  the  ;>>. *.'.!' i  K i.i r.l  land  into  a  building  site,  vnd 
theiefcy  nmteiialJy  Jinpaiis  the  value  of  tlia  holding 
lor  agncultpial  purposes  and  the  landlord  is  entitled 
to  a  decree  in  ejectment  tinders.  151  of  the  Madias 
Estates  Land  Act.  It  is  iinrnateiial  that  en  the  date 
of  the  suit  only  a  email  portion  of  the  land  has  been 
built  upon  |p  403,  col.  1] 

Second  appeal*  against  a  decree  of  the 
District  Court,  Kistna  at  Masulipatam, 
dated  the  5th  March  1923,  in  A.  8.  No.  119 
of  1922,  preferred  against  that  of  the 
Court  of  the  Additional  Deputy  Collector, 
Bezwada,  dated  the  31st  March  1$22,  in 
Summary  Suit  No.  439  of  1921, 

Messrs.  C.  S.  Vtnkatachariarand  A.  Ven- 
katachalam,  for  the  Appellant. 
Sir  K.  V.  Reddi,  for  the  Respondents. 
JUDGMENT.— The  plaintiff  leased 
15  acres  65  cents  of  dry  land  to  the  pre- 
decessor of  defendants  Nos.  1  to  4  in  1907 
for  a  period  of  30  years.  Defendants  Nos.  1 
to  4  have  now  sold  14  acres  of  land  to 
defendants  Nos.  5  to  10  and  the  5th  defend- 
ant has  begun,  the  erection  of  a  building 
on  ICO  square  yards,  has  planted  about  25 
or  30  trees  and  fenced  in  one  acre  of  this 
land  and  sunk  a  well.  The  plaintiff  ac- 
cordingly brings  this  suit  under  s  151  of 
tfce  Estates  Land  Act  for  the  ejectment  of 


[92  i.  o. 


RAM  V.  MtfHAMMAD  ABDUL  RAHMAN. 


403 


defendants  Nos.  1  to  4.  The  sale-  deed  of 
the  14  acres  is  not  filed  but  the  8th  defend- 
ant, who  is  the  only  defendant  examined 
in  -the  suit  admits  that  the  14  acres  were 

Eurchased  'for  about  Rs.  1,800  and  that  the 
md  has  'been  purchased  for  building,  pur- 
poses, cattlesheds  and  storage  of  hay.  Al- 
though, therefore,  the  5th  defendant  alone 
lias  begUh  building  on  the  lancl,  it  is  clear 
that  defendants  Nos,  5  to  10  have  all  pur- 
chased the  land  for  building  .purposes  and 
defendants  Nos.  1  to  4  hava  executed  the 
sale-deed  for  that  purpose.  Both  the  lower 
Courts  have  found  that  the  erection  of 
this  building  by  5th  defendant  on  two 
cerits  of  'land  and  the  planting  of  fruit 
tetfes  ati'd  the  sinking  of  the  well  have  not 
Materially  ^  impaired  the  value  of  the  hold- 
ing for  agricultural  purposes. 

It  is  contended  for  the  respondent  on 
the  authority  of  Hari  Mohan  Misser  v. 
Sureittira  Narayan  Singh  (i)  that  this  is  a 
findihg  df  fact  which  is  binding  on  me  in 
second  appe'al,  but  this  contention  cannot 
be  Upheld  in  'the  present  case,  fors.  151 
coritetnplates  a  suit  against  the  ryot  for 
materially  impairing  the  value  <of  the 
holding.  In  this  case  the  ryot  is  defend- 
ants Nos.  1  to  4  between  whom  alone  and 
thfe  plaintlft  there  is  the  relation  of  land- 
lord and  tenant.  We  are  not  concerned 
here  with  'the  action  of  the  5th  defendant, 
except  in  so  far  as  it  is  in  pursuance  of  the 
adt;of  'defendants  Nos.  1  to  4.  The  sale 
to  clefendants  Nos.  5  to  10  is  not  binding 
on  '  the  'Plato  tiff,  and  inasmuch  as  each  6f 
the  vendors  is  only  entitled  to  2|  acres,  the 
landlord  6an  object  to  the  sub-division  of 
the  laitd,  inasmuch  as  each  sub-division 
is  less  than  5  acres  of  dry  land.  'When  we 
tf61ne  to  consider  whether  the  tenants  have 
materially  impaired  the  value  of  the  hold- 
Ing  We  have  to  realise  what  it  is  that  the 
tenants1  have  done.  The  land  is  leased  for 
elgricultttral  purposes  and  by  selling  14 
acres  out  of  15  65  acres  for  building  pur- 
poses, the  tenants  have  in  effect  converted 
'he  agricultural  lind  into  building  sites. 
ft  is  trtie'th'at  afpresent  only  a  small  extent 
rff  Midland  has  been  actually'  built  upon, 
but  de'ten'rfatfts  ^os.'l  to  1  have  agreed  to 
Buildings'  being-erected  upon  the  whole  14 
icres  Tanii  -have  .precluded  themselves  from 
drty  'objection  thereto.  When  we, 
the  holding  as  an  agri- 


•r-'fll  f.  *tf.  II  C*W.,1tf.'794;  6  0.  L  J.  19;  0  Bom. 
!-  \\  750.  17  M.  I.  J  '3«U  ->*M.iL.  T.  399;  34  I,  A,  133 


cultural  holding,  there  only  remains  1  acre 
65  cents  of  agricultural  land.  If  the  ryots 
wished  to  cultivate  the  whole,  they  could 
not  do  so  because  of  their  contract  with 
defendants  5  to  10  under  which  the  nature 
of  tne  holding  is  entirely  altered,  and  in 
this  view  it  appears  to  me  that  they  have 
materially  impaired  the  value  of  the  holding 
for  agricultural  purposes  and  rendered  it 
substantially  unfit  for  such  purposes. 

The  plain  tiff  «is  accordingly  entitled  to  a 
decree  for  ejectment. 

Plaintiff  has  also  claimed  compensation. 
It -cannot  be  suggested  that  the  erection  of 
this  small  building  has  materially  injured 
the  plaintiff  and  it  would  be  very  difficult 
to  -fix  the  amount  of  compensation.  It  is, 
however,  recognised  by  Napier,  J.,  in  San- 
karalinga  Moopanar  v.  Subramania  Filial 
(2)  that  some  compensation  would  be  ad- 
missiBle  as  otherwise  ryots  will  be  enabled 
'to  convert  agricultural  land  into  town  plots 
and  take  the  whole  -increased  value  to 
themselves,  but  as  in  this  case  the  build- 
-ings  have  not  yet  been  erected  over  any 
considerable  portion  of  the  holding,  I  do 
not  consider  that  any  compensation  need 
be  paid. 

The  second  appeal  is  allowed  and  there 
will  be  a  decree  for  ejectment  with  costs 
throughout. 

v.  N.  v.  Appeal  allowed. 

N.  H. 

(2)  31  Ind,  Gas.  273,  29  M,  L.  J,  oil. 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  1950  OF  1920, 

May  22,  1924. 
'Present : — Mr.  Justice  Moti  Bagar  and 

Mr.  'Justice  Martineau, 

'KANSHI  RAM  AND  OTHERS — PLAINTIFFS 

— APPELLANTS 

versus 
MUHAMMAD  ABDUL  RAHMAN 

'KHAN  AND  ANOTHER  PER  COURT  OF 
WARDS   AND   OTHERS— DEFENDANTS— 

RESPONDENTS. 

Custom— "Shamilat — Grazing  rights — Proprietors, 
right  of,  to  cultivate— Pasturage — Sufficient  area  to 
be  set  apart. 

Plaintiffs,  malikan~i-qabzat  sued  defendants,  proprie- 
tors, for  a  declaration  that  they  were  entitled  to 
grafce  '  their  cattle  in  and  to  take  away  wood  from 
the  *$kamilat  'deh,  and  for  an  injunction -I'Miiainin^ 
the  defendants  from  cultivating  their  land.  It  ap- 
.peared  that  the  .plaintiffs1  right  to  graze  their  cattle, 
tg  take  away  fuel  and  to  cut  grass  from  the  area  iu 


404 


XANSHIfcAM  V.  MtJHAMMAD  ABDTjL 


[92  I.  0.  1826] 


dispute  had  been  established  in  previous  litigation 
between  the  parties  : 

Held,  that  though  the  defendants  were  entitled  to 
cultivate  the  land,  the  plaintiiTs  were  entitled  to  have 
sufficient  pastuiage  for  their  cattle  and  that,  theicfoie, 
the  defendants'  right  of  cultivation  should  extend  only 
to  BO  much  of  the  land  as  will  leave  plaintiffs  a 
Sufficient  amount  of  area  for  grazing  purposes,  [p  405, 
col.  1.] 

First  appeal  from  a  decree  of  the  Senior 
Subordinate  Jud..,.  S-  -  *  \  .  at  Sargodha, 
dated  the  30th  of  \:  -,  !;•:>•• 

Lala  Ram  Chand  Manchanda  and  Lala 
Hargopal,  for  the  Appellants. 

Messrs.  Nanak  Chand  and  Chuni  Lai,  for 
the  Respondents. 

JUDGMENT.— The  plaintiffs    in  this 
case,  who  are  375  in  number  are  the  malikan- 
i-qabza    and    certain    inhabitants    of    the 
village  Girote  in  the  Klmsbab  Tahsil  of  the 
Bhahpur  District.    The  defendants  are  the 
]ii  M  ii-  :i  s-     The  dispute    relates     to  the 
sliamilat-deh  11,110  bighas  and  If  kanals  in 
area  which  the   plaintiffs   allege   they   and 
their  ancestors  have  always  been  using  as 
pasturage,  but  which  the  defendants  are  now 
trying  to  encroach  upon  and  to  bring  under 
cultivation.  The  right  to  take  away  fuel  and 
to  cut  grass   from    the  land  in  dispute  for 
the    use  of  their  cattle  is  also  claimed,  and 
it   is  contended  that  the  defendants     are 
preventing  plaintiffs  from   the   exercise   of 
these  rights.    The  learned  Senior  Subordi- 
nate Judge  has  granted  plaintiiTs  a  declara- 
tory   decree     to  the   effect   that    they   are 
entitled  to  graze  their  cattle  and   to    take 
away  wood  from  the   area  whii'li  is    fr^e 
from    cultivation,  and    has    refused   their 
prayer  for  an  injunction  restraining  the  de- 
fendants from  cultivating  their  lands  when 
the  same  are  vacant  and  the  sowing  of  the 
crops  is  possible. 

Against  the  decision  the  plaintiffs  have 
preferred  a  first  appeal  to  this  Court,  and 
the  main  contention  put  forward  on  their 
behalf  is  that  the  learned  Senior  Subordi- 
nate Judge  was  not  justified  in  refusing 
their  prayer  for  an  injunction,  and  that  the 
area  which  the  defendants  were  entitled  to 
cultivate  ought  to  have  been  specifically  de- 
lined  in  the  decree.  It  is  further  contended 
that  the  decree  and  the  judgment  were 
not  in  conformity  with  each  other,  and  that 
it  should  have  been  stated  in  the  decree 
that  the  plaintiffs  were  entitled  to  cut  grass,, 
to  which  right  they  were  found  entitled 
in  the  judgment.  After  hearing  the  learned 
Counsel  for  the  parties  we  are  of  opinion 
that  the  appeal  must  succeed  and  that  the 
decree  of  the  learned  Senior  Subordinate^ 


Judge  should  be  modified  to  some  extent. 
A  reference  to  the  jamdbandi  papers  printed 
at  pages  4  to  9  of  the  supplementary  paper- 
book  of  First  Appeal  No.    4405  of    1915 
shows  that  in  Sambat  1935-36  the  land  was 
entered   as  shamilat-deh  and  shown  in  the 
column  of  remark    as  unassessed  to  land 
revenue  and  being  used  by  the  inhabitants 
of   the  village  for  grazing  purposes.    This 
entry  was  continued   till  Sambat  1948-49, 
corresponding  to  1893-94,  when    about    918 
bighas    of  land  were    for    the    first   time 
brought  undtfr  cultivation.  A  note  was  made 
in  the  revenue    papers  showing    that  this 
area  was    under  the  cultivation  of  non-oc- 
cupancy tenants,  but  that  no  rent  was  paid. 
In  the  same  year  a  dispute  appears  to  have 
arisen  between   the   proprietors  and  the  in- 
habitants of  the  village  as  to  the  extent  of 
the  area  which  should  have  been  entered  in 
the  revenue  papers  as  shamilat-deh.    The 
matter  went  up   to   Court,  and  on  the '14th 
of  July  1^93  Munshi  Ghulam  Farid,  Assist- 
ant Collector,  decided  that  the  land  should 
be  shown  as  owned  by  the  Bilochis,  who 
were  entitled  to   cultivate  it,    but   that    it 
should  also  be  entered  that  the  inhabitants  of 
the  village  had  the   right  of  grazing  their 
cattle  in   the  1hal   land  and   that   the  pro- 
prietors had  no   right  to  prevent  them  from 
doing  so,    A  further  entry  was  ordeied  to 
be  made     to   the  effect   that    no   dues    in 
respect  of  grazing  were  chargeable  by  the 
proprietors.     In  the  present  suit,  which  A\ as 
instituted  in  1914,   it    was  stated    by  the 
plaintiffs  that  the  defendants  had    plougjied 
and    brought  about    220    biglias    of    land 
more  under  cultivation  in   different  places, 
and  that  they    were    gradually  trying  to 
reduce     the    area  which   the  former  were 
using    for    grazing    purposes    from    time 
immemorial. 

That  the  plaintiffs  have  a  right  to  graze 
their  cattle,  to  take  away  fuel,  and  to  cut 
grass  from  the  area  in  dispute  cannot  be 
doubted  for  a  moment,  and  in  fact  the 
finding  of  the  learned  Senior  Subordinate 
Judge  is  also  to  the  same  effect.  The  rights 
have  been  peacefully  enjoyed  till  1914,  and 
it  has  not  been  shown  that  the  defendants 
are  in  any  way  entitled  to  interfere  with 
the  exercise  of  these  rights.  The  sole  ques- 
tion  for  consideration  is  whether  it  is 
necessary  that  the  area  which  the  plaintiffs 
are  entitled  to  use  for  grazing  purposes 
should  be  sufficiently  defined  in  the  decree. 
By  the  order  of  Munshi  Ghulam  Farid, 
dated  the  14th  of  July  1*03,  it  was  declared 


H'J  I.  U. 


GUNTUft  NARASIMflAM  V. 


NARAYANARAd  GAM. 


405 


that  the  defendants  were  the  owners  of  the 
land  in  dispute  and  that  they  were  entitled 
to  cultivate  -it.  It  was  further  declared 
that  the  plaintiffs  have  the  right  to  graze 
their  cattle  over  the  whole  of  the  area  in 
dispute.  There  is  nothing  on  the  present 
record  to  show  that  the  whole  of  the  land  is 
required  for  grazing  purposes.  There  can, 
however,  be  no  doubt  that,  though  the  de- 
fendants are  entitle'l  to  cultivate  the  land, 
the  plaintiffs  are  entitled  to  have  sufficient 
pasturage  left  for  the  use  of  their  cattle  and 
that  it  appears  to  us  advisable  that  a  pro- 
vision to  this  effect  should  be  inserted  in 
the  decree.  It  will  tend  to  prevent  disputes 
in  future  and  will  also  prevent  the  defend- 
ants from  bringing  the  whole  of  the  land 
under  cultivation  as  apprehended  by  the 
plaintiffs.  We  are  accordingly  of  opinion 
that  it  should  be  stated  in  the  decree  that 
the  defendants'  right  of  cultivation  will 
extend  only  to  so  much  of  the  land  as  v;ill 
"  leave  plaintiffs  a  sufficient  amount  of  area 
for  grazing  purposes.  The  right  to  cut 
grass  is  included  in  the  right  of  grazing  as 
found  by  the  learned  Senior  Subordinate 
Judge  himself,  and  there  is  no  reason  why 
the  plaintiffs'  suit  in  respect  of  this  right 
should  not  have  been  decreed.  We  are 
further  of  opinion  that  the  plaintiffs  should 
also  be  given  a  decree  for  an  injunction  re- 
straining the  defendants  from  preventing 
plaintiffs  from  the  exercise  of  these  rights. 
The  question  as  to  the  sufficiency  of  pastur- 
age to  be  left  for  the  plaintiffs  need  not 
be  decided  in  this  case  and  may  be  left  for 
execution  proceedings.  We  accordingly 
accept  the  appeal  and  order  that  the 
decree  of  the  lower  Court  should  be  modi- 
fied to  the  extent  above  indicated.  The 
defendants  shall  pay  the  costs  of  the  plaint- 
iffs in  this  Court, 
K-  s-  &•  Appeal  accepted. 


MADRAS  HIGH  COURT. 

/LETTERS  PATENT  APPEAL  No.  58  OP  1924 

March  12,  1925. 

Present:— Mr.  Justice  Venkatasubba 

Rao  and  Mr.  Justice  Madhavan  Nair. 

GUNTUR  NARASIMHAM  AND  ANOTHER- 

DEFENDANTS— APPELLANTS 

versus 
NYAPATI  NARAYA.XA  RAO  GARU— 

PLAINTIFF— RESPONDENT. 
Transfer  of   Property    Act  (IV   of  1882) t   9t  tf— 


Limitation  Act  (IX  of  1008),  Sck.  t,  Art.  120— 
Fraudulent  alienation — Suit  6y  creditors — Nature  of 
smt — Individual  creditors,  right  of — Limitation — 
Starting  point 

A  suit  under  s.  53,  Transfer  of  Property  Act,  to  set 
aside  a  fraudulent  alienation  by  a  debtor  is  governed 
by  Art.  120  of  rich.  I  to  the  Limitation  Act.  [p  400, 
col.  1.1 

Authikesavalon    Naickerv.  Shah  Abdulla,  29    Jnd 
Cas  62,  £L  W.  479,  (1915)  M.  W  N  337  and  Venkate*- 
wara  Aiyar  v    Somasundram  Chettiar,    44  Ind.    Cas. 
5.51,  7  L  W  280,   (1918)  M    \V.  N    244,  relied  on. 

The  right  of  suit  under  s.  53,  Transfer  of  Property 
Act,  is  an  individual  right  which  each  ci editor  bus, 
although  if  one  creditor  obtains  a  decree  in  a  suit 
under  s  53  that  decive  accrues  to  tho  benefit  of  the 
other  creditors  as  well  [p  410,  col.  2,  p  411,  col.  1] 

Per  Venkatasubba  Rao,  J.— The  right  to  sue  under 
s.  33,  Transfer  of  Property  Act,  accrues  when  a  creditor 
exercises  his  option  "  •  '  "  ..:  f  . 'ulent  alienation 
and  the  starting  po  •  .  •  •  "  •  a  suit  by  him, 
therefore,  is  the  date  when  he  exercises  this  option 
[p  406,  col  1.] 

In  re  Maddever,  Three  Towns  Banking  Co.  v. 
Maddtver,  (1884)  27  Ch.  D  523,  53  L.  J.  Oh  998;  52  L 
T.  35,  33  W.  R  286,  relied  on. 

Venkateswara  Aiyar  v.  Somasundram  Chettiar,  44 
Ind.  Cas.  551,  7  L.  \V.  280,  (1918)  M.  W.  N.  244,  refer- 
red to 

Per  Madhavan  Nairt  J. — The  starting  point  for 
limitation  for  a  suit  under  s.  53,  Transfer  of  Property 
Act,  is  not  the  date  on  which  the  creditor  exercises  the 
option  to  avoid  the  transfer,  but  it  is  the  date  on 
which  the  circumstances  entitling  the  creditor  to  have 
the  transfer  avoided,  first  become  known  to  him. 
[p  409,  col  1  ] 

Letters  Patent  Appeal  against  the  judg- 
ment of  Mr.  Justice  Krishnan,  dated  the 
19th  February  1924,  in  Second  Appeal 
No.  796  of  1921,  preferred  to  the  High 
Court  against  a  decree  of  the  Court  of 
the  Second  Additional  Subordinate  Judge, 
Guntur,  in  A.  S.  No.  70  of  1920  (A.  S. 
No.  392  of  1920,  District  Court,  Guntur, 
O.  S.  No.  134  of  1919,  on  the  file  of  the 
Court  of  the  Second  Additional  District 
Munsif,  Guntur.) 

Mr.  B.  Jagannadha  Das,  for  the  Appel- 
lants. 

Mr.  N.  Rama  Rao,  for  the  Respondent. 

JUDGMENT. 

Venkatasubba  Rao,  J.— The  ques- 
tion to  be  decided  in  this  appeal  is  one 
of  limitation.  This  suit  was  ^filed  under 
s.  53  of  the  Transfer  of  Property  Act  The 
plaintiff,  being  the  Receiver  in  insolvency 
represents  the  body  of  creditors  of  the  in- 
solvent. The  transaction  impeached  is  a 
mortgage,  dated  27th  July  1908,  executed 
by  the  insolvent  in  favour  of  the  defendant. 
The  suit  was  filed  on  the  15th  of  February 
1918. 

The  first  question  that  arises  is  what 
is  the  Article  that  is  applicable?  Article 


406 


QUNTtrn  JHABIBIHHAH  i><  NTAPATI  NARAYANAJUO  SARU, 


120  seems  to  be  the  appropriate  Article. 
The  decisions  seem  to  be  to  the  same  effect; 
see  Authikesavaloo  Naicfcer  v.  Shah  Abdulla 

(1)  and  Venkateswara  Aiyar  v.    Somasund* 
ram    Chettiar  (2).    It  was  conceded  before 
us,  and,  in  nay  opinion,  rightly  that    the 
Article  applicable  is  Art.   120.    The  more 
difficult  question,  however,  is  what  is  the 
starting  point  of  limitation  ?  On  this*pomt, 
there  is  no  authority.    Phillips,  J,,  in  Ven- 
kateswara Aiyar  v.  Somasundram  Chettiar 

(2)  expressed  'the  view  that  the  time  runs 
from  the  date  when  the  plaintiff  had  know- 
ledge of  the    facts  entitling  him  to  relief. 
This  though  an  obiter  dictum  is  entitled  to 
great   weight  as  the  point    was  fully  con- 
sidered by  him.    Krishnan,  J  ,  in  the  judg- 
ment under  appeal,  aa  I  understand  it,  is 
not  quite  definite  on  the  point.    He  thinks 
that  limitation    runs  from  the  date  when 
tlie  creditor  exercises  his  option ;   in  the 
alternative    from    the  date    when  he  has 
kriowledge    of  the  facts  that  give  him  a 
right  to  relief.    As  I  read  his  judgment. he 
is  more    inclined  to  take  the  former  than 
the  latter  view.    It  seems  to  me  that  he 
expressed  tiie  alternative  view,  aa  on  the 
facts,  whichever  view  was    taken  the  same 
result  followed.    Krishnan,  J;,  having  held 
that  the  suit  was  filed  .in  time,  the  defend* 
ant  has  filed  this  appeal  and  Mf.  Jagan- 
nadha  Das  has  argued  the  case  very  fully  on 
his  behalf.    His  contention  is  that  the  date 
of  alienation   gives  the  starting  point.    He 
supports   his  contention  by  relying  on,  what 
I  may  describe  as  grounds  of  convenience 
Before  adverting  to  these  grounds,  1  shall 
deal   with    the  point  with  reference  to  the 
two  provisions  of  law  that  have  a  bearing, 
viz. ...s.  53  of  the  Transfer  of  Property  Act 
and  Art.  120  of  the  Limitation  Act.    Under 
s,  53  a    transfer   that  offends  against  the 
rule  enacted  in  it  is  voidable  at  the  option 
of  any  person  defrauded,  defeated  or  de- 
layed.   Under  Art.    120  the  suit  may  be 
brought  within  six  years  of  the  date  when 
the  right  to  sue    accrues.    The    question 
resolves   itself  into  this.    When  does  the 
right  to  su«  accrues?    If    the    transaction 
is  voidable  a,t  the  option   of  a  creditor  he 
may  avoid  it  at  any  time  at  his  pleasure. 
Section    53    does    not  say   that,  after  the 
lapse  of  a  certain  time,  he  shall  not   be 
able  to  avoid  the  transaction.    It  does  not 

(1)  29  Ind.    Gas.  62;    2L.W.479;  (1915)  M,  W.  N, 

337 

(2)  44  Ind.  Gas,  551;  7  L,  W,  280;  (1918)  M,  W,  N, 

m. 


prescribe  a  limit  of  time,  "What  than  con- 
stitutes the  exercise  of  the  option?  In  tlie 
words  of  Wallis,  0.  J.  In  ttamaewaini 
Chettiar  v.  Mallappa  Reddiar  (3)  a  void- 
able transaction  may  be  avoided  by  any 
open  and  .unequivocal  declaration  of  aa 
intention  to  avoid  it,  see  page  769*.  The 
right  to  sue  accrues  when  this^  option  ie 
exercised.  Under  Art.  120  the  suit  may  be 
instituted  within  six  years  from  the  date 
when  the  right  to  sue  accrues.  As  that 
right  accrues,  as  I.  have  shown,  when  the 
plaintiff  exercises  his  option,  the  suit  mfky 
be  filed  within  six  years  from  the  date  of 
the  exercise  of  the  option.  The  proper  con- 
struction of  the  sections  compels,  us  to 
take  this  view  and  it  seems  to  me  that 
this  is  what  Krishnan,  J>,  intended  to  hold. 
If  so,  I  entirely  agree  with  him. 

The  alternative  view,  namely,  that  time 
begins  to    run  from    the  date    when  the 
plaintiff  becomes  aw§,re  of  the-  facts  that 
entitle  him  to    relief    found    favour  with 
Phillips,  J.,  in  Venkateswara  Aiyarv.  $oma^ 
sundram  Chettiar  (2).      But  a    perusal  o£ 
his  judgment  shows  that  only  two  theories 
were  put  forward  before  him  namely,  (1) 
the  date  of  alienation  gives    the  slartiiig 
point,  (2)  the  date  of  knowledge,    rl>he&e 
were    the  two  rival  views  that  were  placed 
before  him  and  he  preferred, the  view  that 
knowledge  gives    the  starting  point.    His 
judgment  leaves  no  doubt  in  my  mind  that 
if  what  may  be  compendiously    descii&ed, 
as  the  option  theory  was  suggested  tp  him, 
he  would  have  gladly  adopted  it.    Ipdeed 
in  this  connection,  he  uses  the  word  "option" 
but  does  not  go  the  necessary  length*    Sec- 
tion 53,  it  is  needless  topoiijt  out,  does-i$ot 
take  note   of  knowledge  afc  all    It  speaks 
of  option  and   not  of    knowledge    Under 
Art.  95  of  the  Limitation  Act  \Kh,icb;ri&l3jt£8 
to  a  suit  for  relief  on  the  ground  of  ffa^d* 
knowledge,  no  doubt,  would  be  a  maierial 
element,  for  the  prescribed  period  of  three 
years  runs  from  the  date  when  the  fraud 
becomes  known  to  the  party  wronged.    But 
the  suit  contemplated.  \)y  s.  5>J  i^  nx>t  one 
for  relief  on  the  grouad*  qf  fraud,  ai*d.  tba- 
knowledge  of  fraud  to-  which  Art.  9$  refers 
is,  therefore,  not  a-  material    circujnstajice. 
Moreover^  it  is  not  necessary    that    t£$r<e 
should!  be  actual  fraud  to  invalidate  a  tarae*- 
action  unless  s.  53  as  the  second  clause  of  that 
section  shows,  which   runs  as  follows  ; — 

(3)  59  Ind.  Cas,  917;  43  M.  760;  (1080)  M;  W,  N,  372: 
39M.L.  J.  350;28M.  L.  T.  173;  18L,W,47fr 


[98  1,  0:  1920] 

"Whftre  tfre  effect  of  any  transfer  of  im- 
njoveable  property  is  to  defraud,  defeat  or 
delay  atiy  such  person,  and  such  transfer  is 
ma<ie  gratuitously  or  for  a  grossly  inade- 
quate consideration,  the  transfer  may  be 
presumed  to  have  been  made  with  such  in- 
tent as  aforesaid." 

In  my  opinion,  therefore,  fraud  or  know- 
ledge of  .fraud  is  not  a  relevant  consider- 
ation and  on  the  strict  construction  of  the 
sections,  I  have  arrived  at  the  result  and 
it  is  a  matter  for  satisfaction  that  consider- 
ations of  convenience  and  justice  point  to 
the  same  conclusion.  From  this  point  of 
view,  I  shall  next  deal  with  three  different 
standpoints  suggested. 

First,  let  me  take  the  date  of  alienation, 
being  the  starting  poin-t.  Section  53  refers 
to  an  intention  to  defraud  prior  or  subse- 
quent transferees,  co  owners  and  creditors. 
I  shall  take  the  case  of  creditors  as  this 
is  the  most  usual  case.  It  is  settled  that 
the  benefit  of  the  section  is  not  restricted 
to  existing  creditors  alone,  Even  subse- 
quent creditors  may  impeach  the  transactpn. 
Suppose  then  a  trader  makes  an  alienation 
of  the  property  which  offends  against  the 
terms  of  this  section.  Why  should  any 
creditor  call  in  question  the  alienation  if 
the  trader  is  possessed  of  sufficient  funds 
to  satisfy  him  ?  Why  should  a  subsequent 
creditor  be  barred  although  the  alienation 
was  made  long  previous  to  his  debt  having 
come  into  existence?  Creditors  are  not 
generally  interested  in  impugn  inij  the 
transaction  entered  into  by  their  debtor. 
In  spite  of  the  fact  that  a  property  worth 
Rs.  10,000  has  been  alienated,  the  debtor 
may  yet  be  possessed  of  assets  worth  laks 
and  why  should  any  creditor  take  the  trouble 
of  impugning  the  alienation,  or  again 
the  debtor  may  have  alienated  the  property, 
but  may  still  be  expected  to  make  large 
profits  qr  to  amass  large  wealth.  The  credit- 
ors are  only  concerned  with  this  that  the 
debtor  must  one  day  be  in  a  position  to 
re-pay  the  amounts  due.  To  say  that  the 
right  to  avoid  a  transaction  becomes  barred 
at  the  lapse  of  six  years  from  the  alien- 
ation, is  practically  to  throw  upon  them 
the  burden  of  impeaching  every  suspicious 
transaction,  although  for  the  time  being, 
it  may  not  be  necessary  io  adopt  this  course 
of  co  iduct.  In  the  case  of  subsequent  credit- 
era  whose  interest  accrues  at  a  period  too 
remote,  the  section  will  remain  on  this  con- 
struction a  dead  letter,  Further,  if  the  date 


NARA«£MHAM  *.  NYAPATI  NARAYAWARAO  0AB0. 


407 


of  alienation  is  the  starting  point,  creditors 
may  become  barre-l  for  no  fault  of  theirs, 
as  it  is.  very  likely  that  they  may  not  in 
time  become  aware  of  the  transaction  itself 
without  even,  be  it  noted,  any  active  steps 
being  taken  by  the  debtor  to  conceal  tho 
transaction  from  his  creditors. 

Let  me  now  take  the  second  theory 
suggested,  the  date  of  knowledge  being  the 
starting  point.  As  I  have  said,  it  matters 
little  to  a  creditor  that  his  debtor  has 
alienated  some  of  the  property.  Why  should 
a  creditor  be  driven  to  embark  on  litigation 
merely  because  it  has  come  to  his  know- 
ledge that  his  debtor  has  entered  into  a 
transaction  not  above  board?  The  pro- 
perty still  remaining,  as  I  have  said,  may 
suffice  or  they  may  hope  that  the  debtor 
may  in  time  rally  and  no  creditor  can  be 
expected  to  have  before  him  a  balance 
sheet  disclosing  actually  the  debtor's  affairs, 

The  view  then  I  have  taken,  nameljr, 
that  the  exercise  of  the  option  is  the  start- 
ing point  imposes  no  unnecessary  burden 
on  the  creditors.  When  they  find  that 
their  interests  demand  that  ttye  transaction 
should  be  set  aside  they  exercise  the  option 
and  avoid  the  transaction,  Moreover  it;  is' 
now  settled  that  the  option  may  be  exercised 
otherwise  than  by  the  institution  of  a  suit. 
Firstly,  a  creditor  may  attach  the  property 
alienated  and  he  may  do  so,  whatever  may 
be  length  of  time  that  lapses  from  the 
date  of  alienation.  Secondly,  if,  on  attach- 
ment, the  transferee  prefers  a  claim  uyider 
O.  XXI,  r.  5S,  C.  P,  O.t  and  the  claim  is 
allowed,  the  judgment  creditor  may  file  the 
statutory  suit  prescribed  by  r.  63  without 
regard  again  to  thej^pss  of  time  from  the' 
date  qf  alienation  :  see  Koitarathil  Puthi- 
yapurayil  Pokker  v.  Bulathil  Parkurn 
Chandrankandi  Kunhamed  (4).  Thirdly, 
if  the  claim,  is  on  the  other  hand,  disallowed 
and  the  transferee  files  the  suit  under  r. 
63,  the  creditor  may  defend  it  by  showing, 
that  the  transaction  was  in  fraud  of  credit- 
ors :  see  Ramaswami  Chettiar  v.  Mallappa 
Reddiar  (3).  In  all  these  cases,  the  creditor 
exercises  the  option  without  resorting 
to  the  suit,  under  s.  53,  and  it  would 
be  anomalous  to  hold  that  although  his. 
right  to  file  a  suit  is  barred,  his  right  still 
subsists  to  question  the  transaction  by  these 
other  methods. 

Mr.  Jagannadha  Das  strongly  argued  that 
the  starting  point  should  not  be  made  to 

(4i  51  Ind.  Gas,  714;  42  M,  113;  2u  AT.  L,  T.  47;  (1019) 
M,  W,  N,  39;  9  L,  W,  138;  36  M,  L,  J.  231. 


408 


QtJNTUE  NARASIMHAM  V.  NYAPATI  NARAYANAEAO  <URU. 


[32J.CU926] 


rest  upon  such  a  shifting  ground  as  exer- 
cise of  option,  I  see  nothing  objection- 
able in  this  To  take  another  instance 
from  the  Limitation  Act,  under  Art.  60  the 
period  of  limitation  for  a  suit  to  recover 
money  deposited  under  an  agreement  that 
it  shall  be  payable  on  demand,  is  three 
years  from  the  date  when  the  demand .  is 
made.  The  making  of  the  demand  is  en- 
tirely dependent  upon  the  volition  of  the 
plaintiff  and  the  period  of  limitation  may 
be  indefinitely  prolonged  and  a  suit  may 
be  instituted  without  even  a  demand  be- 
ing made,  in  which  case  no  question  of 
limitation  arises.  The  exercising  of  the 
option  is  analogous  in  this  respect  to  the 
making  of  the  demand  and  the  option 
may  be  exercised  by  the  filing  of  the  suit 
itself,  in  which  case  the  question  of  limit- 
ation will  likewise  not  arise.  Mr.  Jagan- 
nadha  Das  in  his  exhaustive  argument  con- 
tended that  this  will  be  a  startling  result. 
I  do  not  in  the  least  agree  with  him.  On 
the  other  hand,  the  English  cases  show  that 
this  is  assumed  to  be  the  normal  position. 
In  re  Maddever;  Three  Towns  Banking  Co. 
v.  Maddever  (5)  a  creditor  brought  an  ac- 
tion to  set  aside  a  conveyance  several 
years  after  it  was  made  and  although  he 
had  been  aware  of  the  facts  during  the 
whole  period  and  gave  no  satisfactory 
reason  for  his  delay,  the  Court  of  Appeal 
held,  affirming  North,  J.,  that  his  right  to 
impeach  the  transaction  was  not  barred. 
The  only  limitation  recognised  is  that  the 
debt  should  be  subsisting.  North,  J.,  puts 
it  thus :  "Where  the  parties  have  been 
merely  non-active,  I  do  not  see  any  reason 
why  they  should  not  take  proceedings  at 
any  time  while  the  debt  is  a  subsisting 
debt.  The  time  might  have  arrived  when 
the  Statute  of  Limitations  would  be  a  bar, 
and,  of  course,  when  the  debt  was  gone,  no 
proceedings  could  be  taken  in  respect  of 
it.11  Cotton,  L.  J.,  observes:  uThe  plaint- 
iffs in  this  case  say  'We  are  creditors 
whose  debt  is  not  barred,  and  we  seek 
payment  out  of  property  conveyed  away 
by  the  debtor  by  a  deed  which  the  Statute 
of  13  Eliz,c  S,  makes  void  as  against  us.'  The 
defendant  relies  on  the  delay  of  the  creditor; 
But  I  am  of  opinion  that  this  defence  is 
not  effectual."  See  also  May  on  Fraudulent 
Conveyances,  page  120,  when  the  learned 
author  says  •— 

4<Since    the    right  of  a    creditor  to  set 

(5)  (1884)  27  OK  D.  523;    53  Lt  J,  Ch.  098;   52  L.  T. 
85;  38  W,  P.  286.. 


aside    a  deed    under  13   Eliz.,  c.  5   is  a 

legal  right,  and  not  merely  a  right  to 
set  aside  the  instrument  ."on  equitable 
grounds,  the  fact  that  the  creditor  has 
delayed  to  take  proceedings  to  set  aside 
the  deed  under  that  Statute,  although  with 
full  knowledge  of  the  facts,  is  immaterial,, 
so  long  as  the  delay  has  not  been  such  as 
to  create  a  statutory  bar.  Until  the  right 
to  recover  the  debt  is  barred  by  the  Statutes 
of  Limitations,  the  legal  right  to  avoid  the 
deed  exists,  and  no  equity  arises  from  the 
mere  delay  to  enforce  it." 

Mr.  Jagannadha  Das  next  contended  that 
the  nature  of  the  action  is  representative 
and  if  one  creditor  is  barred  the  whole 
body  of  creditors  becomes  barred.  May  a 
creditor  bring  a  suit  on  his  own  behalf  or 
must  the  suit  be  brought  on  behalf  of  #11 
the  creditors?  This  question  does  not  strict- 
ly arise  although  I  may  say  that  on  this 
point  the  preponderance  of  authority,  so 
far  as  Madras  is  concerned,  is  in  favour  of 
the  view  that  a  creditor  may  bring  such  a 
suit  on  his  own  behalf  :  see  Krishnan,  J/s 
judgment  in  Kottarathil  Piithiyapurayil 
Pokker  v.  Balathil  Parkum  Chandrankandi 
Kunhamed  (4)  and  Sadasiva  Aiyar's  observa- 
tion at  page  781*  in  Ramaswami  Chettiar  v. 
Mallappa  Reddiar  (3).  Again,  under  s.  11, 
Expl.  VI,  C.  P.  C.,  the  section  relating  to  res 
judicaia,  the  result  of  a  suit  brought  by 
one  creditor  bona  fide  contested  may  be 
binding  on  the  transferee  and  on  the  general 
body  of  creditors.  I  express  no  opin- 
ion on  this.  But  assuming  that  when 
there  has  been  a  suit  the  principle  of  res 
judicata  applies,  it  does  not  by  any  means 
follow  that  the  inaction  of  one  creditor, 
that  is  to  say,  his  failure  to  file  a  suit  with- 
in six  years  of  his  exercising  the  option, 
bars  the  general  body  of  creditors.  Under 
s,  53  of  the  Transfer  of  Property  Act  "Any 
person  so  defrauded,  defeated  or  delayed" 
may  avoid  the  transaction.  An  individual 
right  is  conferred  upon  each  creditor  by 
this  section  and  the  inaction  or  laches  of 
one  cannot  deprive  the  others  of  their  rights. 
The  learned  Vakil  for  the  appellant  relied  on 
the  analogy  furnished  by  Challagundla  Va- 
ramma  v.  Madala  Gopaladasayya  (6),  where 
by  reason  of  the  nearest  reversioner  failing 
to  sue  within  the  time  limited  to  eet  aside  an 
alienation  by  a  Hindu  widow,  all  the  rever- 
sioners  existing  as  well  as  subsequently  born 

(6)  46  Ind.  Cas.  202;    41  M.  659;    35  M.  L.  J  57-  24 
M.  L.  T.  115;  8  L.  W.  62;  (19|8)  M.  W.  N.  461. 
"~ 


GUNTUR  NARA8IMHAM  V.  NYAPATI  NARAYANARiO  OARU. 


[92 1.  0. 1926] 

were  held  equally  barred.  The  matters  are 
not  in  pcm  materia]  special  considerations 
apply  in  the  case  of  suits  by  reversioners 
and  the  analogy  is  misleading. 

As  the  Receiver  repreeents  all  the  cre- 
ditors, granting  that  the  inaction  of  one  may 
lead  to  the  result  contended  for,  it  must  be 
observed  that  in  this  case  it  is  not  suggest- 
ed that  any  particular  creditor  exercised 
his  option  at  a  time  too  remote  for  the  suit 
to  be  brought.  Therefore,  though  I  have 
dealt  with  the  matter  at  some  length,  the 
question  as  to  the  nature  of  the  suit  under 
s.  53,  Transfer  of  Property  Act,  does  not,  as 
I  have  said,  on  the  facts  arise. 

I  hold  that  the  suit  is  not  barred  by 
limitation. 

It  is  lastly  urged  that  the  suit  is  quite  a 
frivolous  one  as  appears  from  the  previous 
proceedings  that  transpired  in  insolvency, 
but  this  is  a  matter  we  cannot  go  into  as 
the  suit  remains  to  be  tried  on  the  other 
issues  in  the  case. 

The  only  order  as  to  costs  that  we  pro- 
pose to  make  is  that  they  shall  abide  the 
event. 

Madhavan  Naif,  J.—  I  agree  with 
my  learned  brother  that  the  plaintiff's  suit 
in  this  case  is  not  barred  by  limitation,  but 
with  regard  to  the  grounds  for  that  deci- 
sion, I  regret  I  have  to  differ  from  him. 

I  agree  that  a  creditor's  suit  under  s.  53 
of  the  Transfer  of  Property  Act  is  governed 
by  Art.  120  of  the  Indian  Limitation  Act  ; 
but  I  think  that  the  starting  point  for 
limitation  is  not  the  date  on  which  the 
creditor  exercises  the  option  to  avoid  the 
transfer,  but  it  is  the  date  on  which  the 
circumstances  entitling  the  creditor  to  have 
the  transfer  avoided,  first  become  known 
to  him.  The  result  of  holding  that  the 
starting  point  for  limitation  is  the  exercise 
of  option  by  the  creditor  is  that  the  creditor 
in  that  case  would  be  entitled  to  wait  any 
number  of  years  he  pleases  before  bring- 
ing the  suit,  which  would  mean  that  in 
effect,  there  would  be  no  period  of  limita- 
tion at  all  for  a  suit  under  s.  53  of  the 
Transfer  of  Property  Act.  Having  regard 
to  the  spirit  and  provisions  of  the  Indian 
Limitation  Act  which  contains  also  a  re- 
siduary article  for  all  suits  not  specifically 
provided  for,  I  think  that  we  should  not 
construe  s.  53  of  the  Transfer  of  Property 
Act,  in  such  a  way  as  to  have  the  above- 
mentioned  effect  unless  the  language  there- 
of clearly  compels  us  to  adopt  such  a  con- 
struction, 


409 
of  Property 


Section  53  of  the  Transfer 
Act  runs  as  follows  : — "  Every  transfer  of 
immoveable  property,  made  with  intent  to 
defraud  prior  or  subsequent  transferees 
thereof  for  consideration,  or  co-owners  or 
other  persons  having  an  interest  in  such 
property,  or  to  defeat  or  delay  the  credit- 
ors of  the  transferor,  is  voidable  at  the 
option  of  any  person  so  defrauded,  defeated 
or  delayed11.  The  sole  basis,  as  it  appears 
to  me,  for  the  view  that  the  starting  point 
for  limitation  is  the  date  of  the  exercise  of 
option  by  the  creditors  is  the  use  of  the 
expression  "at  the  option  of  "  in  the  above 
section.  In  my  opinion,  it  is  not  necessary, 
nor  is  it  right,  to  interpret  that  expression 
in  such  a  way  as  to  make  the  exercise  of 
option  the  starting  point.  The  same  expres- 
sion occurs  inss.  2,  cl.  (1),  19  and  19  (a)  of  the 
Indian  Contract  Act,  there  it  has  been 
used  simply  to  indicate  at  whose  instance 
it  is  that  the  transaction  referred  to  therein 
is  voidable  and  has  no  reference  at  all,  to 
any  question  of  limitation,  for  Art.  114  of 
the  Limitation  Act  provides  that  the  period 
of  limitation  for  a  suit  for  the  rescission  of 
a  contract  commences  from  the  date  when 
the  facts  entitling  the  plaintiff  to  have  the 
contract  rescinded  first  became  known  to 
him.  I  think  that  the  words  "  at  the  option 
of "  which  occur  in  s.  53  of  the  Transfer 
of  Property  Act  should  also  be  construed  in 
the  same  manner  and  the  question  whether 
a  suit  under  that  section  is  barred  should 
be  judged  solely  from  a  consideration  of 
Art.  120  of  the  Limitation  Act. 

Under  Art.  120  the  time  from  which  the 
period  begins  to  run  is  "  when  the  right  to 
sue  accrues".  I  agree  with  my  learned 
brother  that  the  date  of  the  transfer  (alien- 
ation) sought  to  be  avoided  cannot  be  the 
starting  point  for  limitation.  If  we  hold 
that  the  date  of  the  transfer  is  the  starting 
point,  then  in  a  case  where  the  creditor 
comes  to  know  of  the  transfer  only  more 
than  six  years  after  the  date  thereof  it  would 
have  to  be  held  that  the  right  to  sue  had 
not  only  accrued  to  him,  but  had  terminated 
as  well  before  he  himself  knew  anything 
about  the  transaction,  which  would  mean 
that  the  creditors  would  have  no  oppor- 
tunity of  avoiding  the  transfer  at  all.  It 
is  not,  therefore,  right  to  hold  that  the  start- 
ing point  for  limitation  is  the  date  of  aliena- 
tion. When  once  the  creditor  romes  to 
know  of  the  circumstances  whiph  entitle 
him  under  s.  53  to  avoid  the  transfer,  there 
be  no  further  impediment  in  the  way 


410 


NARA8IMHAM  V.  NfAPATI  KARAYANARAO 


[921.  O.  If 26] 


of  his  bringing  the  suit  and  I  think  the, 
right  to  sue  accrues  to  him.  within  the  mean- 
ing of  Art.  120  from  tl^e  date  of  such  know- 
ledge,  This  view  finds  support  in  the  judg<« 
meni  of  Phillips,  J.,  in  Venkaieswara  Aiyar 
v.  Somasundram  Chettiar(2).  At  page  283*, 
the  learned  Judge  says  "  that  the  cause  of 
action  arises  on  the  date  when  the  creditor 
seeking  to  set  aside  the  alienation  knows 
that  he  has  been  defrauded,  defeated  or 
delayed".  It  is  true  that  it  is  not  specifically 
stated  in  Art.  120  that  this  is  the  starting 
point  and  that  only  the  general  expression 
"  when  the  right  to  sue  accrues  "  occurs  in 
that  Article  but  it  is  a  residuary  Article  for 
all  suits  not  specifically  provided  for  and 
as  such,  the  language  thereof  has  neces- 
sarily to  be  general.  The  interpretation  to 
be  put  on  that  expression  would,  to  a 
certain  extent,  depend  on  the  particular 
class  of  cases  to  which  the  Article  is  sought 
to  be  applied  As  observed  by  Phillips, 
J  ; — "  In  all  oases  of  fraud,  misconduct,  etc., 
the  period  of  limitation  for  a  suit  begins 
to  run  from  the  time  when  the  fraud,  mis- 
conduct, etc ,  becomes  known  (vide  Arts. 
i»0,  91,  95  96,  etc.),  but  no  such  provision 
could  be  inserted  in  Art.  120,  for  it  is.  a 
residuary  Article  and  thus  applicable  to 
every  variety  of  suits  not  otherwise  provided 
for  and  is  not  Confined  to  suits  based  on 
fraud  If  such  a  suit  coming  within  Art.  120 
is  based  on  fraud,  the  time  when  the  right 
to  sue  accrues  must,  I  think,  be  determined 
in  consonance  with  the  pi inci pie  governing 
the  other  specific  suits  based  on  fraud,  and 
that  is,  that  the  time  when  the  fraud  be- 
comes known,  becomes  the  starting  point 
for  limitation."  No  doubt  it  is  stated  by 
the  learned  Judge  that  a  suit  ty  a  creditor 
under  s.  53.  depends  upon  the  exercise  of 
option  by  him  but  he  states  this  in  order  to 
negative  the  contention  that  the  right  to 
sue  accrues  on  the  date  pf  alienation  itself. 
I  think,  Krishnan,  Jv  also  in  the  judgment 
under  appeal  takes  the  same  view ;  for  he 
observes  'thus  in  the  concluding  portion  of 
his  judgment :— "  The  Receiver  himself 
puts  the  cause  of  action  as  having  arisen 
on  the  31st  July  1915  when  one  Sambiah 
and  others  learnt  that  the  suit  mortgage- 
deed  was  a  collusive  document ;  it  does 
not  appear  that  Sambiah  knew  it  earlier. 
Taking  this  view  it  seems  to  me  that  the 
suit  is  not  barred  by  limitation".  It  is  true 
that  the  learned  Judge  makes  reference  in 
an  earlier  portion  of  his  judgment  to  the 
~~  'Page  of  7  U  W.— 


exercise  of  option  by  the  creditor  or  by 
Receiver  ;  but  the  context  shows,  tljat  IIQ 
is  there  considering  the  question  as.  to 
whether  each  of  the  creditors  has^  got  a 
separate  right  of  suit  under  s.  53  or  whether, 
if  one  creditor  is  barred  by  limitation  from 
bringing  the  suit  the  rest  are-  also  barred  ; 
and  I  think  that  he  did  not  intend  to  lay 
down  that  the  exercise  of  option  is  thq 
starting  pointfor  limitation.  Tjhe/decisjon 
in  In  re  Maddever\  Three  Towns  Banking 
Co.  v.  Maddever  (5)  does  not  in  my  view, 
help  us  in  deciding  the  present  question. 
That  case  merely  decides  that  delay  on  the 
part  of  the  creditors  to  take  proceedings 
even  after  full  knowledge  of  the  facts  is 
immaterial  provided  the  delay  is  not  such 
as  to  create  a  statutory  bar. 

It  is  true  as  pointed  out  by  my  learned 
brother  that  there  would  be  some  anomaly  if 
a  creditor  is  allowed  to  set  up  in  a  suit  upder 
0.  XXI,  r.  63  of  the  C.  P.  C  ,  the  fraudulent 
nature  of  the  transfer  as  against  the  claim- 
ant even  though  he  may  be  barred  bv 
limitation  from  bringing  a  suit  under  8,  53 
to  have  the  transfer  avoided,  but  it  appears 
to  me  that  the  anomaly  would  still  '  exist 
even  if  we  adopt  the  "option  theory",  for 
buppoMiitf  the  creditor  exercises  the  option 
on  a  particular  date  and  keeps  quiet'  for 
more  than  six  years  without  bringing  a 
suit  under  s  53,  I  take  it  that  in 'proceed- 
ings under  0.  XXF,  r.  t>3,  'such  creditor 
may  still  set  up  the  fraudulent  nature  of 
the  transfer  as  against  the  claimant.  This 
consideiation,  therefore,  does  not,  iu  my 
T*h\v  give  us  any  help  in  solving  the  pre- 
sent question. 

For  the  reasons  above  stated,  I  aip  of 
opinion  that  the  starting  point  for  limit- 
ation is  the  date  on  which  the  circumstances 
entitling  the  creditor  to  have  the  transfer 
avoided  first  becomQ  known  tu  him'.  In 
view,  of  the  fact  that  a  few, of  the  creditors 
in  this  case  knew  of  the  fraudulent 
character  of  the  alienation  in  1909,  i.e ,  more 
than  six  years  before  the  suit,  it  becomes 
necessary  to  consider  whether  the  credit- 
ors1 right  of  suit  under  s.  53  is  ap  indivi- 
dual right  which  each  individual  creditor  has 
or  whether  it  is  only  a  representative  right 
in  the  sense  that  if  one  creditor  ia  barred 
by  limitation  from  bringing  the  suit,  the 
others  are  also  barred.  I  agree  with,  my 
learned  brotherin  thinking  that  the  right 
of  suit  under  s.  &3  is  an  individual  right 
which  each  creditor  has.  It  is  true  that, 
if  a  creditor  obtains  a  decree  in  a  suit 


c. 

under  a»  Kb  that  decree  accrues,  to,  the 
benefit  of  the- other  creditors  as  well,  but 
I*, think  a,  SJhconfere  on  each  of  the  creditors 
the  tight  of;  bringing  a  suit  on  his  own 
behalf*  As  the  Receiver  presents  tha  whole 
body-  ot  the  creditors  and  as  some  at  leest 
of  the  creditors  knew  that  the  suit  mort- 
gage-dee<J,wa£  a-  collusive  document  only 
within  six  y.eara  of  the  suit,  I  hold  the  suit 
by  the  Receiver  is  not  barred  by  limitation. 
In  the  result  I  agree  that  this  appeal 
should  be  dismie&ed.  I  agree  with  him  as 
regards  the  costs  also. 

V.   N;  V. 

N,  H.  Appeal  dismissed. 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE  No.  1056 

OP  1923. 

April  23,  1925, 

Present; — Mr.  Justice  Suhrawardy  and 

Mr.  Justice  Duval. 

GOPAL  CHANDRA  BANERJEE— 

PLAINTIFF — APPELLANT 

versus 
BHUTNATH  SA8MAL  AND  ANOTHER— 

DEFENDANTS — RESPONDENTS. 
Construction    of  document— Lease,   whether  agricul- 
tural or.  residential'r-Hei  itallt  lease— Ejectment. 

A»  plpt  of  land  upon  which  there  \\ere  a,  certain 
number  of  fruit-trees  was  leased  to,  Ihp  defendants 
who  were  to  enjoy  the  land  by  erecting  houses  on  it 
and  planting,  if  tney  so  liked,  ether  fruit-trees  It 
was  provided  that  the  lease  should  continue  to  the 
defendants'  heirs,  but  that  if,  at,  anyk  time  the,  lessor 
should, require  the  land  he  would  give  notice  to  the 
lessees  who  wculci  gi\e  up  the  land  on  receipt  of  the 
value  of  fruit-tree?,  etc.  • 

Held,  (I)  that  the  lease  was  one  for  residential  and 
not  for  horticultural  or  agricultural  purpopes  and  vas, 
therefore,  governed  by  the  Transfer  of  Property  Act 
and  not  by  the  Bengal  Tenancy  Act  ,  [p.  412,  col.  1.] 
(2)  that  the  rights  of  the  paities  must  be  governed 
on  a  construction  of  the  lease  itself  and  that  the ' 
conduct  of  the  parties  after  the  leate  had  lecn  entei- 
ed  into  could  not  be  taken, into  consideration  ,  [ibid] 

(.3)  that  the  land  was  to  be  enjoyed  by  the  defend- 
ants from  generation  to  geneiatkn  go  long  as  the 
landlord  did  not  require  it  for  his  own  purposes,  but 
that  if  he  so  requiied  it,  he  had  the  right  to  re-enter 
after  giving  notice  and  paying  compensation  in 
accordance  with  the  terms  of  the  lease,  [p.  412,  cols. 
1&2.] 

Appeal  s gainst  a  decree  of  the  Subordi- 
nate Judge,  Fhst  Court,  of  24-Pargai.as, 
dated  the  *0th  December  1922,  ^ffiimiDg 
that  of  the  Munsif,  SecoLd  Ccurt,  al  Alipur, 
dated  the  23rH  May  192J. 

r.  ibarat  Chant*'ia   hoy  Choui*]iry  rnd 
Chandra  I^hattachorjce^  Icr  the 
Appellant, 


411 

Babu,  Baranatibaehi  Mukherjee,  for  the 
Respondents. 

JfcJCGMEN^F* 

Duval,  J«— In  this  case  the  plaintiff* 
brought  a  suit  in  ejectment  and  for  an  ears 
of  rent  and  damages  in  respect  of  a  piece 
of  land,  said  to  measure  1  btgha,  17  cottast 
which  was  leased  to  the  defendants  by  a 
pottah  dated  the  27th  November  1£89,  The 
plain  tiff's  case  was  that  he  served  on  the 
defendants  a  notice  to  quit  and  determined 
the  lease.  The  first  Court  found  that  the 
defendants'  tenancy  was  a  tenancy  under 
the  Bengal  Tenancy  Act,  that  notice  'was 
not  duly  servediunder  that  Act  and  that  the 
defendants  could  not  be  ejected-  except 
under  the  provisions  of  a,  25,  Ben  gal  Tenancy 
Act.  The  learned  Subordinate  Judge  on 
appeal  confirmed  this  order  and  against  his 
order  the  piesent  appeal  is  brought. 

Now  the  main  point  in  this  appeal-is- 
whether  on  the  construction  of  the  pottah 
this  tenure  is  one  which  comes  under  the 
Bengal  Tenancy  Act  at  all  or  is  a  tenancy 
which  cornea  under  the  provisions  of  the 
Transfer  of  Property  Act.  It  appears  that 
on  the  land  in  suit  at  the  time  of  the  lease 
there  were  only  a  certain  number  of  fruit- 
trees  and  by  the  lease  the  defendants  were 
to  enjoy  the  land,  by  erecting  houses  on 
it  and  planting,  if:  they  so.  liked,  oil-er 
fruit-trees.  The  provision  was  that  the 
lease  shoulc)  continue  to  the  defendants1 
heirs;  but  there  is  a  further  piovision  that  if 
at  any  time  the  lessor  should  require  the 
land  he  w.ould  give  notice  to  the  lessees 
who  would,  theiefore,  give  up  the  land 
on  receipt  of  the  value,  of  the  fruit-tjees. 
etc.  It  is  argued  on  behalf  of  the  appellant 
that  by  the  nature  cf  the  premises  and 
tfims  of  the  lease  the  parties  aie  gcvemed 
by  the  Transfer  of  Property  A^t  and  not 
by  the  Bengal  Tenancy  Act  and  the  lease 
can,  therefoie,  be  terminated  on  the  teiirs 
let  cut  hi  \\iQpollah.  For  the  respondent  it 
is  argued  that  the  lease  is  one  governed  ly 
the  Bengal  Tenancy  Act  and  that  the  defeuci- 
ants  have  acquired  a  right  of  occupancy 
and  cannot  be  ejected.  It  is  clear  that  the 
land  is  not  let  out  foi  purposes  of  cultha- 
tion.  It  was  let  out  for  residential  purposes 
with  the  right  to  take  fruit  from  the  tiees 
on  the  land  and  to  plant  other  fruit-tiees 
and  take  their  fruits,  The  pottah  is  de- 
scribed as  a  basatbati  pottah,  i,  e.t  a  pottah 
for  residential  purposes.  Now  the  mere 
fact  that  there  is  a  right  to  plant  tietb  or 
pluck  tie  fn.itfc  of  Uees  wculd  not  by  it- 


MAHALINQA  NAIOKER  V.  VBLLATA  NAIOKBR. 


self  convert  a  pottah  granted  for  residential 
purposes  into  a  horticultural  lease  carrying 
the   same  rights  as  an  agricultural    lease 
and     so     bring   it  under  the  Bengal  Ten- 
ancy   Act.    In   this    connection    I    would 
refer  to  the  case  of  Hedayet  Ali  v.  Kalanand 
Singh  (I)  where  it  was  observed   that  if  a 
lease  is  for  the  purpose  of  gathering  fruits 
from   the  trees  on  the  land,  the  lease  is  not 
for  horticultural  purposes.    Again    in   the 
unreported  case  of  Raj    Kumar   Nali    v. 
Mohesh  Chandra    Guha  (2)  where  it    was 
found  that  after  the  creation  of  a  lease  the 
defendants  possessed  the  land  by   enjoying 
fruits  of  the  trees  and  that  none  of  the  land 
was    under  any  sort  of  cultivation  and    it 
was  held  that  it  could  not  be  said  that  such 
land  was  really  let    out  as  subject  to  the 
provisions  of  the    Bengal   Tenancy  Act.   I 
would  also  refer  to  the  case  of  Sashi    Bala 
Debi  v.  Amola  Debi  (3)  where  it  was  observ- 
ed   that  the  whole  area    of    a  residential 
holding  cannot,  ordinarily,  be  covered  with 
buildings  and  the  fact  that  the  surplus  land 
is   planted   with    fruit   bearing  trees   does 
not  alter  the  character  of  holding;  and  the 
case    was  governed  by  the  Transfer  of  Pro- 
perty Act.    On  the  other  hand  it  is  argued 
on  behalf  of  the  defendants  that  the  grow- 
ing of  fruit  trees  is  a  horticultural  purpose 
and  so  the  Bengal  Tenancy    Act  applies. 
Following  the  rulings  set  out  above  we  can- 
not agree  to  the  respondent's    proposition 
of  law  on  the  facts  of  this  case.    Lastly    it 
is  urged  that  the  lease  anyhow  is  a  perma- 
nent one  owing  to  the    covenant  in  it  that 
the  land  will  be  enjoyed  down  to  sons  and 
grandsons  in  succession  and  that  the  coven- 
ant as  to  the  right  of  re-entry  on  compensa- 
tion is  a  purely  personal  covenant  between 
the  original  lessor  and  the  original  lessee; 
and  it  is  argued  that  as  the  original  lessor 
is     dead    and    the     present    plaintiff    is 
only  an  assignee  from  him  that   covenant 
being  a  personal  one  is  no  longer  enforce- 
able.   We  see  no  force  in  this  contention. 
It  appears  to  us  that  the  purpose  of  the 
lease  was  clearly  one  for  residential    pur- 
poses.   Incidentally  there  was  the  right  to 
plant  trees  and  take  fruits  but  there    was 
nothing  agricultural  about  the  land  at  all. 
As  to  the  terms,  it  is  clear  to  us  that  it 
was  given  to  be  enjoyed  from   generation 
to  generation  so  long  as  the  landlord  did 

(1)  20  Ind.  Cas.  332;  17  C  L.  J.  411 
(?)  (1915)  Tnreported  S.  A.  No.  2371  of  1015,  decided 
on  the  19th  July 
(3)  66  Ind.  Gas,  61;  25  0,  W,  N.  378, 


[921.  0.1926| 

not  require  it  for  his  own  purposes,  He 
had  then  according  to  the  terms  of  the 
document,  the  right  to  re-enter  on  giving 
certain  compensation.  In  this  view  we 
must  hold  that  the  Bengal  Tenancy  Act 
does  not  apply  but  that  the  Transfer  of 
Property  Act  applies,  It  was  also  urged 
that  by  their  conduct  the  parties  have 
treated  the  lease  as  a  permanent  one.  In 
a  matter  of  this  character,  rights  as  be- 
tween the  parties  must  be  determined  on 
a  construction  of  the  lease  and  we  have 
nothing  to  do  with  the  conduct  of  the  parties 
after  the  lease  has  once  been  entered  into. 
In  view  of  these  findings  it  has  next  to  be 
determined  whether  the  lease  has  been 
duly  determined  by  notice.  The  notice 
appears  to  be  one  served  by  registered  post 
and  is  not  a  notice  under  the  Bengal 
Tenancy  Act.  The  lower  Courts  have  not 
considered  whether  such  notice  is  sufficient 
under  the  Transfer  of  Property  Act  or  is 
one  given  in  accordance  with  the  terms  of 
the  lease.  It  is  necessary,  therefore,  to 
remand  the  case  to  the  lower  Appellate 
Court  to  come  to  a  finding  as  to  whether 
in  the  present  suit  notice  has  been  duly 
served  or  not  in  accordance  with  the  terms 
of  the  lease. 

The  result  is  that  this  appeal  is  allowed 
with  costs  of  this  Court,  the  decree  of  the 
lower  Appellate  Court  set  aside  and  the 
case  remanded  to  that  Court  to  be  dealt 
with  in  the  manner  indicated  above.  Other 
costs  will  abide  the  result. 

Suhrawardy,  J.-— I  agree. 

z.  K.  Appeal  allowed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  73  OF  1923. 

September  24,  1925. 
Present;— Mr.  Justice  Odgers  and  • 

Mr.  Justice  Viswanatha  Sastri. 

MAHALINGA  NAICKER-PLAiNTiPF 

— APPELLANT 

versus 

VELLAYA  NAICKER  alias  GURUSAMI 

NA1CKER  AND  ANOTHER — DEPENDANTS 

—RESPONDENTS. 

Madras  Estates  Land  Act  (I  of  1908),  Ch  VI,  st.  7*7, 
189,19S-Cw\l  Procedure  Code  (Act  V  of  1W8),  0. 
XXI,  m.  89,92  Sale  of  holding— Apflicatio7i  to  set 
aside,  sale,  rejection  of— Suit  to  set  atide  sale, 
of— Jurisdiction  of  Civil  Courts* 


MAHAL1NGA  NATCICBR  V.   VfclAYA  NATORBR. 


•[921.0.1926] 

Civil  Courts  have  jurisdiction  in  all  cases  in  which 
they  would  have  had  jurisdiction  prior  to  the  passing 
of  the  Madras  Estates  Land  Act,  except  in  go  far  as 
jurisdiction  is  expressly  or  by  necessary  implication 
taken  away  by  the  provisions  of  s.  189  of  the  Act. 
[p.  413,  col.  2.] 

A  Civil  Court  has  jurisdiction  to  entertain  a  suit 
by  a  ryot  to  set  aside  a  sale  of  his  holding  held  under 
the  provisions  of  Ch.  VI  of  the  Madras  Estates  Land 
Act.  The  fact  that  an  unsuccessful  application  had 
been  made  by  the  ryot  under  s.  131  of  the  Act  to  set 
aside  the  sale  makes  no  difference,  [ibid.] 

Rajah  of  Ramnad  v,  Venkataramaiyer,  69  Ind.  Cas. 
923;  45  M.  890;  16  L  W  274;  (1922)  M.  W.  N.  501;  31 
M.  L.  T.  158,  43  M,  L.  J.  264;  (1923)  A.  I.  R.  (M  )  6, 
followed. 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Ramnad 
at  Madura,  in  A.  S,  No.  74  of  1921  (A.  8. 
No.  722  of  1919  of  Ramnad  District  Court 
at  Madura),  preferred  against  that  of 
the  Court  of  the  Additional  District  Munsif, 
Srivallipattur,  in  O.  8.  No.  430  of  1917  (0. 
8.  No.  247  of  1917  on  the  file  of  the  Court  of 
the  District  Munsif,  Sattur.) 

Messrs  B.  Sitarama  Rao  and  S.  R.  Muthu- 
swami  Iyer,  for  the  Appellant. 

Mr.  A:*:Venkatarayaliah,  for  the  Respond- 
ents. 

JUDGMENT. 

Viswanatha  Sastri,  J.~Plaintiff  is 
the  appellant.  He  sued  to  set  aside  a  sale 
held  under  the  provisions  of  Ch.  VI  of  the 
Estates  Land  Act  and  for  a  permanent  in- 
junction restraining  the  defendants  from 
interfering  with  his  enjoyment,  on  the  fol- 
lowing grounds  :— (1)  that  the  sale  was  held 
without  due  notice  to  him;  (2)  that  there 
was  no  publication  and  (3)  that  the  price  was 
grossly  inadequate.  The  first  Court  held 
on  all  these  points  in  favour  of  the  plaint- 
iff, and  passed  a  decree  as  prayed  for.  De- 
fendants appealed,  and  the  Appellate  Court 
held  that  a  Civil  Court  had  no  jurisdic- 
tion to  entertain  such  a  suit  and  '  allowed 
the  appeal.  That  such  a  suit  would  lie  has 
been  held  by  a  Full  Bench  of  this  Court  in 
Rajah  of  Ramnad  v.  Venkataramai  Iyer  (1). 
The  Vakil  for  the  respondents  contended 
that  this  ruling  would  not  apply  because 
there  was  an  application  to  set  aside  the 
sale  under  s.  131  of  the  Act,  and  that 
0.  XXI,  r.  92  (1)  of  the  C.  P.  C  ,  barred  the 
suit.  This  rule  runs  as  follows; — **Wheie 
no  application  is  made  under  r.  89,  r.  SO  or 
r.  91  or  where  such  application  is  made  and 
disallowed,  the  Court  shall  make  an  order 
confirming  the  sale,  and  thereupon  the  sale 

(1)  69  Ind  Cas.  623;  4  M.  SCO;  16  L.  W,  S74;  <1S22) 
M.  W.  N,  501;  31  M,  L,  T  1£8;  43  H.  L,  J,  264;  (li»23) 
A,  I.  R,  (M.)  6, 


415 


shall  become  absolute.1'  I  may  here  estate 
that  r  89  is  similar  to  s.  131  of  the  Estates 
Land  Act,  and  it  was  represented  that  the 
applications  put  in  by  plaintiff  under  this 
section  were  dismissed,  because  the  proper 
sum  was  not  deposited.  Section  192  of  the 
Estates  Land  Act  relates  to  the  application 
of  the  C.  P.  0.  to  "suits,  appeals  and  other 
proceedings  under  the  Act "  and  it  lays 
down  that  ''subject  to  the  other  provisions 
of  this  Act  and  subject  to  the  following 
modifications  and  additions,  the  provisions 
of  the  C.  P.  C.  shall  apply  to  all  suits, 
appeals  and  other  proceedings  under  this 
Act  so  far  as  they  are  not  inconsistent  there- 
with." And  in  cl.  (a)  it  is  stated  that  s.  310- A 
(corresponding  to  r.  89  of  O  XXI)  shall  not 
apply.  Now  if  r.  89  of  O.  XXI,  of  the  C. 
P.  C.,  does  not  apply  to  proceedings  under 
the  Estates  Land  Act,  I  fail  to  see  how 
r.  92  (1)  of  0.  XXI,  can  be  made  applicable 
simply  on  the  ground  that  s.  131  of  the 
Estates  Land  Act  is  similar  to  r.  89  of 
O.  XXI.  As  observed  in  the  Full  Bench 
case  above  referred  to,  the  jurisdiction  of 
Civil  Courts  is  taken  away  only  in  cases 
referred  to  in  s.  189  of  the  Estates  Land 
Act  and  it  was  not  even  suggested  that  there 
is  anything  in  this  section  to  bar  the  suit 
out  of  which  this  second  appeal  arises. 

I  would,  therefore,  allow  the  appeal  and 
setting  aside  the  decree  of  the  lower  Appel- 
late Court  direct  that  that  Court  do  re-hear 
the  appeal.  Appellant  will  get  his  costs 
in  this  Court  and  costs  in  the  lower  Appel- 
late Court  will  abide  and  follow  the  result. 
Appellant  will  get  a  refund  of  the  Court- 
fee  paid  on  the  memorandum  of  appeal. 

Odgers,  J,— I  agree.  It  was  stated  in 
the  reierring  judgment  in  Rajah  of  Ramnad 
v.  Venkataimnaiyer  (1)  as  well- settled  that 
the  Civil  Courts  have  jurisdiction  in  all 
cases  in  which  they  would  have  had  juris- 
diction prior  to  the  Act  except  in  so  far  as 
such  jurisdiction  is  expressly  or  by  neces- 
sary implication  taken  away  by  the  provi- 
sions of  s.  189  of  the  Estates  Land  Act.  The 
question  put  before  the  Full  Bench  was 
quite  general  in  its  teims.  It  is  admitted 
that  the  only  distinction  between  this  case 
and  that  dealt  with  by  the  Full  Bench  is 
that  two  unsuccessful  applications  were 
made  by  the  ryot  under  s.  131.  1  cannot 
see  that  this  makes  the  slightest  difference 
in  principle  and  a  suit  by  a  ryot  who  says 
that  his  property  has, been  improperly  sold 
is  expressly  said  by  the  Full  Bench  to  be 
outside  the  restrictive  provisions  of  the 


414 


fcAM 


V. 


Madras  Estates  Land  Act.    I  agree  as  to  the 
order  proposed  by  my  learned  brother. 

v.  N.  v.  Appeal  allowed. 

Z.  K. 


ALLAHABAD  HIGH  COURT. 

LETTERS  PATISNT  APPBAL  No.  121  OF  1924. 

October  22,  1925. 

Present :~- Sir  Grimwood  Hears,  KT., 

Chief  Justice  and  Mr.  Justice  Lindsay. 

Musammat  RAM  KUER— DEFENDANT — 

APPELLANT 

versus 
QOVIND  RAM  AND  OTHERS— PLAINTIFFS 

AND  DEFENDANTS — RESPONDENTS. 
Adverse  possession  -Mortgage,  redemption  of-  Widow 
of  mortgagee   retaining   possession— Lawful  origin— 
Nature  of  widow's  possession, 

Where  after  the  redemption  of  n  mortgage  the  mort- 
gagee retains  possession  of  the  mortgaged  property 
and,  after  his  death,  his  widow  cornea  to  occupy  the 
said  property  to  the  exclusion  of  the  rightful  heirs  of 
her  husbaud  as  well  as  the  mortgagor,  the  possession 
of  the  widow  cannot  be  referred  to  a  lawful  origin 
and  is  adverse  to  the  mortgagor  and,  in  case  it  ex- 
ter'l*  l»t  v  -i:'l  twelve  years,  \\ill  ripen  into  ownership, 
[p  Ut"),  '••!  *, 

'Letters  Patent  Appeal  against  a  judg- 
ment of  Mr.  Justice  Neave,  dated  the  28th 
of  April  1924,  in  S.  A.  No.  1702  of  1922, 
printed  as  85  Ind.  Gas.  740,  affirming  the 
decree  of  the  District  Judge,  Mainpuri, 
datfed  the  13th  October  1922. 

-Messrs.  HaribaYisSd'kai&ridL.  M.  Banerji, 
fttrthe  Appellant. 

•Mr.lStttla  Nath'Muk&rji,  for  the  Respond- 
ents. 

fftJBi&MENT,— After  hearing  theurgu- 
in'this  '6ase*  x?e  frave  'come  to  >  the 
£  that  th^^ppearmust  be  Allowed, 
the  Vfecisioh  of  the  Judge  of  this  *  Court  re- 
versed •and  the  decree  oftfre'flrst^ppdlate 
Gotirt'refctoVfcd. 

ThfcBuitW  framed  Was  a  suit  for  redemp- 
ti&i  in  #hi&l  th'6  defefc&'Ant -was*  one  Mutam- 
Wia $  Rain  KU6r  \vho-  is  liow^bef&rtftis  as  the 
appellant. 

'It  Jipjwars  i ha1  on  she 28*id  of  November 
IBS!  one  Piihur  Singh  extictotecLa  inoftgage 
in:f&Votirtof  four^erfiflons  one- of  'wbt>m  -"vms 
BamJPraaad,  The  aiiKrtmt  of  the  mortgage 
mtfttSy  w&s'Rs.  1,000  and  Admittedly  Ram 
Ptfftsa'd'wfcs"  interested  in  thte'ttiotoey  to  the 
eiteiitbf  otae- fifth  only. 

t  On1  the  17th  of  October  1890  Pahar  Singh 
the  mortgagor  -sold  some  tither  property '  of 
hta  to  thive  of  ••"•>-  •  •  ^-.^  -  n •  •",  •  'left 
with  them- a  W-"  :"  li-  WK  •  -, :'  >r  t  •  dis- 
charge the^  mortgage  ^filSS*,  It  has  beeu 


RAM,  [92 1.  0, 1926] 

found  and  has  'not  been  questioned  that 
Rs.  938  represented  the  full  amount  of  the 
mortgage  debt  at  the  time  this  transaction 
took  place. 

It  is  further  proved  that  Ram  Prasad,  who 
as  we  have  said  was  interested  to  the  extent 
of  l/5th  of  this  mortgage,  received  his  pro- 
portionate share  of  this  money.  A  further 
fact  which  is  established  by  the-evidence  on 
the  record  is  that  when  this  money  was 
paid  in  pursuance  of  the  contract  made  on 
17th  of  October  1890  the  mortgage- deed 
which  was  executed  on  the  22nd  of  Novem- 
ber 1884  was  returned  to  the  mortgagor 
Pahar  Singh. 

After  this  transaction  had  taken  place  it 
seems  that  Pahar  Singh  in  *the  year  1891 
made  a  mortgage  of  this  property  which 
had  been  so  released  to  certain  other  per- 
sons by  way  of  conditional  sa^e.  In  the 
year  18U4  these  mortgagees  got  a  decree 
for  foreclosure,  the  property  was  brought 
to  sale  in  the  year  1896  and  after  the 
sale  had  taken  place  there  was  a  suit  for 
pre-emption  which  ended  in  the  property 
being  transferred  to  the  plaintiffs  in  the 
present  suit.  They  got  a  pre-emption 
decree  on  the  26th  of  April  1898. 

It  appears  that  notwithstanding  the 
payment  of  the  mortgage  debt  in  the  year 
1890  the  portion  of  the  mortgaged  property 
'in  which  'JRam  Prasad  was  interested  re- 
'mained  in  possession  of  Ram  Prasad  and 
after Itam  Prasad's  death,  which  it  seems 
took  place  in  or  about  the  year  1892,  this 
property  came  into  the 'possession  of  his 
widow  Musammat  Ram  Kaer  who  is  the 
appellant  before  us. 

The.  plaintiffs  whose  title  as  we  have  said 
dates'back  to  IS'SS,  brought  this  suit  in  the 
year  1^920  against  Musammat  Rafti  Kuer. 
The  position  Which  they  took  up  in  the 
xsase  was' that  the- mortgage  of  the  year  1S84 
*vas  still  sulhii&fing.  'that  the  defendant 
*Mu$(tmmdt  Ram  Kuer  was  in1  the  position  of 
a 'mortgagee  *and  that"  they  were  entitled  to 
redeetn  the  property  as  purchasers  of  the 
equity  of  redemption.  A  number  of  defences 
were  raised.  The  only  one  with  which 
we  are  cobc£rn6d  was  whether  the  'plaint- 
iffs were  entitled  to  succeed  on  the  case  so 
brought.  The  case  put  forward  by  Musammat 
Ram  Kuer  was  that  there  was  no  mortgage 
in  existence  and  that  she  had  been  in  adverse 
possession  of  this  property  for  more  than 
twelve  years. 

The'  Court  of  first  instance  dismissed  the 
euit  and  gave  effect  to  the  plea  of 


[921,0.1026] 


THAMAYA  BANQARtJSWAMl  V.  TIIRtJNATHASUMDRA 


possession  raised  by  the  lady  and  this 
decree  was  affirmed  in  appeal  by  the  Sub- 
ordinate Judge  of  Mainpuri.  There  was  a 
second  appeal  to  this  Court  and  the  learned 
Judge  has  taken  the  view  that  the  n.on  jrajni 
was  still  in  existence,  that  Musammat  Ram 
Kuer  could  not  be  heard  to  set  up  any 
adverse  title  to  the  property  and  that  con- 
sequently the  plaintiffs  were  entitled  to 
have  a  decree  for  redemption. 

Before  us  it  has  been  argued  that  this 
view  taken  by  the  learned  Judge  of  this 
Court  is  erroneous.  We  are  of  opinion  that 
the  learned  Judge  fell  into  error  in  dealing 
with  this  question  of  adverse  possession. 

To  go  back  to  the  beginning  of  things  it 
is  clear  that  the  original  mortgagor  of  the 
property  in  the  year  1884  was  Pahar  Singh. 
It  is  further  quite  clear  that  when  Pahar 
Singh  in  the  year  1890  sold  some  other  pio- 
perty 'to  some  of  the  mortgagees  and  arrang- 
ed for  the  discharge  of  the  mortgage  debt 
that  after  the  payment  of  this  money  the 
person  who  was  entitled  to  immediate 
possession  of  the  property  mortgaged  in  1884 
was  Pahar  Singh  and  no  one  else.  It  is 
quite  clear  that  the  other  three  mortgagees 
who  had  entered  into  the  transaction  of 
sale  with  Pahar  Singh  in  1890  had  no  right 
whatever  to  this  mortgaged  property — un- 
doubtedly the  :*  j^'itfi  i  property  was  to 
return  to  Pahar  biugii. 

Ram  Prasad,  as  we  have  said,  died  some 
time  after  the  year  1890.  It  is  an  admitted 
fact  that  Ram  Prasad  left  sons  who  are  still 
in  existence  and  who,  according  to  the 
Hindu  Law,  were  his  heirs  and  entitled  to 

Eossession  of  all  his  property.  On  the  other 
and,  it  is  equally  clear  that  Musammat 
Ram  Kuer  the  widow  of  Ram  Prasad  had 
in  the  presence  of  hersonsno  right  whatever 
to  any  property  belonging  to  her  husband. 
It  is  admitted,  however,  that  ever  since  the 
death  of  Ram  Prasad  this  lady  has  been  in 
possession  to  the  exclusion  of  her  sons  and 
all  other  persons,  and  that  being  so,  it  is 
difficult  to  see  how  her  plea  of  adverse 
possession  of  this  property  can  be  repelled. 

We  do  not  agreet  with  the  view  which  was 
taken  by  the  learned  Judge  of  this  Court. 
He  seems  to  have  been  of  opinion  that  the 
widow  of  Ram  Prasad  could  not  hold  ad- 
versely to  the  mortgagor  Pahar  Singh  or 
his  representatives.  He  thought  that  the 
widow's  possession  might  be  adverse  to  her 
own  sons  but  he  held  that  any  right  she 
had  would  not  be  a  right  adverse  to  Pahar 
jSingh,  In  our  opinion  this  is  not  so,  for  at 


the  time  she  entered  into  possession  the 
person  who  was  entitled  to  immediate 
possession  of  this  property  was,  as  we  have 
said,  Pahar  Singh  himself. 

While  it  may  be  that  possession  which 
can  be  referred  to  a  lawful  origin  is  not  to 
be  deemed  to  be  adverse,  it  is  quite  clear 
in  the  present  case  that  the  possession  of 
the  widow  Musammat  Ram  Kuer  never  had 
any  rightful  origin.  On  all  hands  it  must 
be  admitted  that  she  took  possession  as  a 
trespasser.  It  cannot,  therefore,  be  said 
that  her  possession  can  be  referred  back  to 
the  possession  which  her  husband  originally 
acquired  in  his  capacity  as  mortgagee. 
Her  possession  at  once  became  adverse  as 
•luflii  -!  -1  e  person  who  was  then  entitled  to 
ii!  irvi;!:;1-  possession,  namety,  Pahar  Singh. 
Theplaintiffs  in  the  ft  osent  suit  derived  their 
title  from  Pahar  Singh  and  are  in  the  same 
position  as  he  would  have  been  had  he  been 
alive  now.  In  other  words,  having  been 
entitled  to  immediate  possession  of  properly 
and  having  failed  to  bring  their  suit  within 
twelve  years  from  the  date  on  which  they 
became  so  entitled  their  title  to  the  property 
has  been  lost. 

We  hold,  therefore,  that  the  rights  of  this 
litigation  are  with  Musammat  Ram  Kuer, 
the  defendant-appellant,  and  for  the 
reasons  just  given  we  set  aside  the  decree  of 
the  learned  Judge  of  this  Court  and  restore 
the  decree  of  the  first  Appellate  Court.  The 
appellant  is  entitled  to  all  her  costs  in  this 
Court  including  fees  on  the  higher  scale. 

N,  H.  Decree  set  aside. 


MADRAS  HIGH 

CIVJL  REVISION  PETITION  No.  897  OF  1923. 

September'!!,  1925. 

Present:  —  Mr.  justice  Waller, 

THAMAYA  BANGARUSWAMI 

NAICKER—  PETITIONER 

versus 
VADAMALAI  THIRUNAtHASUNDARA 

DOSS  fHEVAR—  RESPONDENT. 
Civil    Procedure    Code    (Act    V  of    IQQ8L    s.   llo, 
of  India  Act,  1025, 
' 


•*  leave  to  sue  in. 
whether  can  be 


0.  XXXIII,  r.  1—  Government  o 
(6Geo.~~        "" 
forma     .•  '    • 

gone  into-  -  Revision. 

On  an  application   for   leave  to  sue  to    in 
pauperi^  it  is  not  desirable  for  a  Court  to   go  into   a 
complicated  question  of  limitation,  and    its"ttrder  id 
liable  to  be  set  aside  in  revision, 


'416 


MYYBTY  OOPALAM  GAfttJ  V.  ADUSUMILLY  GOPALAKRI8HNAYYAk  f92  1.  0. 


Kalliani  Am/ma  v.  Matatkil  Veetil  Achuthan  Naii\ 
53  Ihd.  Cas.  239;  10  L  W,  174;  (1919)  M.  W.  N.  573,  37 
W.  L.  J.  o09,  followed 

Petition,  under  s.  115  of  Act  V  of  1908 
and  s.  107  of  the  Government  of  India  Act, 
praying  the  High  Court  to  revise  an  order 
of  the  Court  of  the  Subordinate  Judge, 
Madura,  in  O.  P.  No.  50  of  1922. 

Mr.  K*  V.  Sesha  lyengar,  for  the  Peti- 
tioner, 

Mr.  A.  Krishnaswami  Iyer,  for  the  Re- 
spondent. 

JUDGMENT.— I  agree  with  the  view 
of  Kumaraswami  Sastri,  J.,  in  Kalliani 
Ammo  v,  Matatkil  Veetil  Achuthan  Nair(l) 
that  it  is  undesirable  on  an  application  for 
leave  to  sue  in  forma  pauperis  to  go  into  a 
complicated  question  of  limitation.  In  this 
case  the  discussion  of  such  a  question  has 
led  to  the  delivery  of  a  judgment  six  pages 
long. 

The  order  of  the  lower  Court  is  set  aside. 
The  application  will  be  disposed  of  on  the 
other  grounds  raised. 

The  costs  of  this  petition  will  abide  the 
result. 


v.  N.  v. 

N.  H. 


Order  set  aside. 


(1)  o3Ind.  Gas  239,   10  L  W.  17i;  (1919)'M.  W.  N. 
573;  37  M.  L.  J.  309. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No.  3  OF  1924. 

December  15,  1924. 
Present :— Mr.  Justice  Devadoss  and 

Mr.  Justice  Wallace 

PEYYETYGOPALAM  GARU— 

RESPONDENT — APPELLANT 

versus 

ADUSUMILLY   GOP ALAK RISEN AYTA 
G  ARU — PETITION  aR-— RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  00— 
"Agriculturist",  who  is —Exemption  of  house  from 
salt. 

For  deciding  the  question  of  the  exemption  of  tfc* 
liability  of  the  houae  of  an  insolvent  to  be  sold  for 
debts,  the  Court  must  decide  whether  the  insolvent's 
chief  means  of  livelihood  is  agriculture.  It  is  not 
enough  that  he  be  an  agriculturist,  or  that  he  be  a 
trader.  The  point  is,  which  profession  forms  his  chief 
means  of  livelihood. 


Appeal  against  an  order  of  the  District 
Couit,  Kislna  at  Masulipatam,  dated  the 
15th  August  1923,  in  I.  A.  No.  4  of  1923,  in  I. 
P  No.  136  of  1920  (Official  Receiver's  file). 

FACTS* — An  insolvent  applied  before 
the  Official  Receiver  for  exempting  his 
house  from  liability  from  being  sold  to 
discharge  his  debts  on  the  ground  that  he 
was  an  agricultuiist. 

Under  s.  68.  Provincial  Insolvency  Act, 
the  creditors  applied  to  the  Court  to  set 
aside  the  order  alleging  that  the  insolvent 
was  also  curry  ing  on  a  trade  and  was  not 
entitled  to  the  exemption  claimed.  The 
Court  relying:  on  the  evidence  of  .,  the 
insolvent  and  his  witnesses  who  deposed 
that  he  lived  by  •i..':  '•  :  ai\d  trade 
and  following  Surangini  Deby  v.  Redar- 
nath  Chandra  (1)  held  that  he  was  not 
entitled  to  the  exemption  claimed  under 
s.  60,  0;  P.  C. 

The  insolvent  appealed. 

Messrs  C.  S.  Venkatachariar  and  P.  Mar- 
kandeyuluy  for  the  Appellant. 

Mr.  P.  Satyanarayana,  for  the  Respond- 
ent. 

JUDGMENT.— Neither  the  District 
Judge  nor  the  Official  Receiver  has  direct- 
ed his  attention  to  the  real  issue,  in  this 
matter,  ?;?>.,  whether  the  insolvent's  chief 
means  of  livelihood  is  agriculture.  It  is 
not  enough  that  he  be  an  agriculturist, 
or  that  he  be  a  trader.  The  point  is,  which 
profession  forms  his  chief  means  of  liveli- 
hood. 

We  set  aside  the  District  Judge's  order 
and  direct  him  to  pass  a  fresh  order  in  the 
light  of  the  above  remarks.  Fresh  evidence 
may  be  given.  Costs  up  to  date  will  abide 
the  result. 


V.  N.  V. 
N.    H. 


(1)  63JInd.  Cas  681. 


Case  remanded. 


I.  0. 


POHLA  V.  EMPEROR. 


417 


LAHORE  HIGH  COURT. 

CRIMINAL  APPEAL  No.  265  OF  192o. 

May  29,  1925. 
Present: — Mr.  Justice  Martineau  and 

Mr.  Justice  Golds tream. 

POHLA  SON  OF  GUJAR  SINGH— 

ACCUSED— APPELLANT 

versus 
EMPEROR— RESPONDENT. 

Practice — Criminal  trial—  Witnesses,  unreliable — 
Conviction,  whether  justified —Murder — Motive. 

In  this  country  and  among  Jats  murders  are  some- 
times committed  from  motives  of  pride  to  avenge 
comparatively  harmless  insulta  [p.  418,  col.  1] 

The  mere  presence  of  motive,  however,  will  not 
justify  a  conviction  for  murder  when  the  testimony  of 
alleged  eye-witnesses  of  the  occurrence  cannot  be 
relied  upon,  [p  419,  cola.  1  &  2  J 

Criminal  appeal  from  an  order  of  the 
Sessions  Judge,  Ferozepur,  dated  the  19th 
January  1925. 

Dr.  Nand  Lai,  for  the  Appellant. 

Mr.  Des  Raj  Sawhney,  Public  Prosecutor, 
for  the  Respondent. 

JUDGMENT.— In  this  case  Pohla,  son 
of  Gujar  Singh,  a  Jat  of  village  Dina  in 
Tehsil  Moga,  has  been  sentenced  to  death 
by  the  Sessions  Judge  of  Ferozepur  for  the 
murder  of  Kapur  Singh  (or  Kapura)  of  the 
same  village.  The  story  disclosed  by  the 
prosecution  evidence  is  as  follows: — 

Kapura  and  his  brother,  Phumman,  (wit- 
ness) owned  a  field,  half  of  which  was  mort- 
gaged to  Musammat  Punjabo,  a  creditor, 
and  cultivated  for  Musammat  Punjabo  by 
Gujar  Singh,  father  of  Pohla  and  Subha. 
There  was  a  dispute  over  the  cultivation  of 
this  field  between  Kapura  and  his  brother 
on  one  side  and  Gujar  Singh  on  the  other 
and  a,  panchayat  was  held  on  or  about  the 
17th  July  1924  to  settle  the  matter.  At 
this  panchayat  Kapura  and  Gujar  quarrel- 
led. Gujar's  nephew  Phumman  intervened 
on  his  uncle's  behalf  and  pulled  Kapura's 
beard.  The  people  present  separated  the 
two  men,  but  Gujar  declared  that  he  would 
be  revenged  and  would  "drink  Kapura's 
blood/1  Pohla  was  not  present  when  this 
happened. 

On  the  22nd  of  July  at  6  30  A.  M.  Phum- 
man, brother  of  Kapura,  reported  at  Nihal 
Singhwala  Police  Station  five  kos  from  Dina, 
that  Pohla  and  Subha  the  sons  of  Gujar, 
together  with  Phumman,  Gujar's  nephew, 
had  waylaid  Kapura  on  his  way  home  from 
his  field  at  sunset  on  the  previous  evening 
and  beaten  him  to  death  with  dangs.  The 
murder  he  said,  had  been  seen  by  Pritam 
Singh,  Purau  Singh  and  the  son  of  Kehar 

27 


vSingh  and  one  Attar  Singh  had  seen  the 
accused  going  armed  with  dangs  towards 
the  place  of  the  murder.  Phumman  added 
that  he  had  heard  of  this  from  oneRalla 
(who  had  himself  heard  the  story  from 
Pritam  Singh)  when  he  (Phumman)  had 
returned  to  the  village  later  the  same  even- 
ing. He  had  gone  to  the  place  and  found 
his  brother  dead,  bleeding  at  his  mouth 
and  nose  and  with  his  hands  and  feet  bound 
with  his  turban.  The  Police  went  to  Dina 
on  the  same  day  (22nd).  The  statements 
of  witnesses  were  not,  however,  recorded 
until  the  23rd,  on  which  day  also  a  post 
mortem  examination  was  made  by  the 
Assistant  Surgeon  at  Moga.  From  this 
examination  it  appeared  that  Kapura's 
death  was  due  to  .stianiniLitiun  probably 
effected  by  hands.  There  were  twelve  con- 
tusions and  swellings  on  Kapura's  legs, 
chest,  back,  arms,  head  and  neck. 

The  Police  found  no  evidence  against 
Phumman  accused.  Subha  was  abscond- 
ing and  Pohla  was  tried  alone. 

Besides  the  evidence  of  the  Assistant 
Surgeon,  Eai  Bahadur  Dr.  Mathra  Das 
(P.  W.  No.  L)  and  the  necessary  formal 
testimony,  there  is  evidence  as  to  the 
motive  (the  ill- feeling  engendered  by  the 
quarrel  in  the  panchayat)  and  the* evidence 
of  no  less  than  nine  witnesses  who  profess 
to  have  seen  Pohla  and  Subha  assaulting 
the  deceased  Kupura.  Their  story  is  that 
from  various  points  of  view  they  saw  Subha 
striking  Kapura  with  dang  while  Pohla  waa 
seated  on  or  beside  Kapura,  pommelling  or 
beating  Kapura  with  his  fists  or  squeezing 
his  neck.  According  to  one  witness  Ganda 
(P.  W.  No.  15)  it  was  Subha  who  was  throt- 
tling Kapura  while  Pohla  used  a  dang. 

Pohla  admitted  that  there  had  been  a 
quarrel  in  the  panchayat  (at  which  he  him- 
self had  not  been  present),  lie  declared  he 
had  no  enmity  with  the  deceased,  but  Kehar 
Singh,  Santu,  and  Chanan  (eye-witnesses) 
who  were  interested  in  a  canal  with  the 
deceased  were  at  enmity  with  him.  Karela, 
father  of  Kehar  Singh,  and  Rullia,  father  of 
Santu,  had  once  beaten  him  and  Gujar,  his 
father,  and  he  and  Gujar  had  complained 
to  the  Sufedposh.  At  the  time  of  the  mur- 
der he  was  ploughing  land  on  the  other 
side  of  the  village.  He  produced  one  wit- 
ness to  prove  his  alibi. 

The  truth  of  the  evidence  as  to  motive 
is  not  seriously  questioned  by  Dr.  Nand 
Lai  who  appears  for  the  appellant.  It  is  to 
be  remembered  that  Pohla  took  no  part  in 


418 


t>.  EMPEROR. 


I.  0.  1926] 


the  squabble  at  the  panchayat.  The  squab- 
ble itself  was  not  such  as  would  at  first 
sight  appear  to  be  a  sufficient  motive  for 
the  murder  of  Kapura  by  Ou jar's  sons,  but 
in  this  country  and  among  Jats  there  is  no 
doubt  that  murders  are  actually  commit- 
ted from  motives  of  pride  to  avenge  what 
appear  to  be  comparatively  harmless  insults. 
Moreover  the  real  enmity  was  over  the 
possession  of  land,  such  as  is  certainly 
a  common  origin  of  murder.  There  is  no 
reason  to  doubt  that  Kapura  was  throttled 
to  death .  It  is,  however,  unfortunate  that 
there  is  no  evidence  as  to  the  probable 
manner  in  which  the  various  contusions 
and  marks  found  on  the  deceased  other 
than  those  of  strangulation  were  caused. 

The  defence  evidence  is  of  small  value. 
It  may,  however,  be  remarked  that  it  dis- 
countenances the  theory,  now  advanced  by 
appellant's  Counsel,  that  the  murder  really 
took  place  at  night  and  was  not  discovered 
until  the  following  morning.  If  this  theory 
were  true,  the  story  of  the  eye-witnesses 
could  not,  of  course,  be  believed. 

The  only  matter  for  consideration  is 
whether  the  evidence  of  the  eye-witnesses 
or  of  any  of  them  is  to  be  believed.  We 
may  here  note  that  the  Assessors'  verdict 
was  not  a  satisfactory  one.  Virtually,  after 
some  vacillation  and  an  expression  of 
opinion  that  Pohla  "participated  in  the 
attack,11  they  acquitted  Pohla  of  murder  on 
the  grounds,  apparently,  that  there  was  an 
unpremeditated  assault  by  bubha  absconder 
with  a  dang  and  that  they  did  not  believe 
that  it  was  Pohla  who  throttled  Kapura. 

A  careful  scrutiny  of  the  evidence  and 
the  arguments  of  Mr.  Des  Raj  Sawhney 
who  appears  for  the  Crown  have  left  us 
unconvinced  that  the  actual  murder  was 
really  seen  by  any  of  the  eye-witnesses. 
Several  considerations  have  influenced  us 
in  arriving  at  our  conclusion. 

The  evidence  has  been  fully  described  in 
the  Sessions  Judge's  judgment  and  we  do 
not  propose  to  repeat  a  description  here, 
but  will  confine  our  remarks  to  the  points 
which  appear  to  us  to  justify  doubts  as  to 
the  truth  of  the  story  told  by  the  eye- 
witnesses. 

According  to  Phumman,  who  made  the 
First  Report,  he  was  informed  of  the  murder 
by  Ralla,  a  Muhammadan,  (P.  W.  No,  19) 
who  got  the  news  from  one  Indar  Singh. 
This  Indar  Singh  is  not  produced.  The 
fact  by  itself  would  be  of  small  consequence 
but  for  the  astonishing  fact  that,  though  so 


many  people  .  saw  what  happened  and 
mingled  immediately  after  the  murder  with 
the  murderers  and  the  villagers,  no  one 
baid  a  word  about  it  to  any  one  who  had 
not  seen  it  except  Pritam  (P.  W.  No.  14), 
a 'child  of  10,  who  told  his  uncle  Indar 
Singh.  It  is  this  Indar  Singh  who  is  said 
to  have  informed  Ralla,  the  Muhammadan. 
Now  Indar  Singh's  evidence  as  to  when 
arid  in  what  manner  the  child  informed 
him  would  have  been  of  considerable  im- 
poitance,  and  its  absence  adds  to  the  feel- 
ing of  uncertainty  provoked  by  the  curious 
silence  of  the  many  eye-witnesses.  Pritam 
sajsthat  he  told  Indar  Singh  as  soon  as 
he  returned  to  the  village,  z.  e.,  about  sun- 
set time,  but  it  was  not  until  night  time 
that  there  was  an  outcry  in  the  village. 
Phumman  did  not  verify  the  news  by 
questioning  the  eye- witnesses  before  going 
to  the  tkana.  When  he  made  his  report 
there  he  accused  Phumman  Singh  as  well 
as  Pohla  and  Subha.  In  his  evidence  before 
the  Committing  Magistrate  he  declared 
that  Rulla  had  named  Phumman  as  one  of 
the  culprits  But  at  the  trial  he  admitted 
that  he  included  Phumman's  name  OD.  no 
evidence,  but  merely  on  conjectures.  Ac- 
cording to  the  evidence  Pritam  (aged  10), 
Purarr  (aged  16)  and  Chanchai  (aged  13) 
saw  the  assault  together.  But  none  of 
these  except  Pritam  the  youngest  spoke  a 
word  about  it  to  any  one  until  the  second 
day  of  the  investigation,  the  first  having 
been  occupied  in  "looking  for  witnesses11 
(see  evidence  of  Sub-Inspector  Muhammad 
Sharif,  P.  V$.  No.  21).  Some  witnesses  had, 
however,/  been  named  in  the  First  Informa- 
tion Repbrt. 

We  come  now  to  examine  the    story  told 
by  the  supposed  eye-witnesses.     , 

Kapura   was    a  stout   man  of  44.    His 
assailants  were  only  two.    The  evidence  is 
that  Kapura  kept  crying  out  loud  enough 
to   be  heard  2<>0  karams    away   and    the 
actual  words  ("Pohla  and  Subha,  don't  beat 
me")  were  heard  #0  or  ItO  karams  away. 
There  were  very  many  people  in  the  fields 
all  round,  but  rro  one  went  to  Kapura's  help. 
Two  men  Ganda  Singh  (P.  W.  No.  15)  and 
Vir  Singh  (P.  W.  No.   16),  approached,  so 
they  eay,  to  within  20  karams  of  where  the 
assault  was  going  on.    They  did  not  inter- 
fere.   All  the  eye-witnesses   say  they  saw 
Pohla  and  Subha,  either  leaving  Kapura 
after  the   beating  or  going  to  the   village 
together  immediately    afterwards.    None, 
however,  went  to  see  if  Kapura  was  alive 


KtSHANCHAND  V.  EMPEdOft. 


[92  I.  0. 1926] 

or  dead.  None  except  ths  child  Pritam 
mentioned  anything  to  any  one  until  the 
23rd  July.  It  is  certain  that  Kapuia's 
hands  and  feet  were  found  tied  up  with 
his  turban  when  his  body  was  first  seen  by 
Phumman.  No  witness  mentions  that  Kap- 
ura's  hands  and  feet  were  tied.  We  find  it 
difficult  to  believe  that  any  witness  who 
really  saw  the  murder  being  accomplished 
could  possibly  have  failed  to  notice  that 
Kapura  was  bound  hand  and  foot. 

There  is  a  remarkable  discrepancy  in  the 
evidence  of  Ganda  Singh  (P.  W.  No.  15)  and 
Vir  Singh  (P.  W.  No.  16)  whose  testimony 
would  otherwise  have  carried  some  weight. 
Both  knew  Pohla  andSubha  arid  both  were 
standing,  so  they  say,  close  to  the  place  of 
the  assault.  But  while  Ganda  says  that 
Pohla  was  using  the  dang  while  Subha  was 
pressing  Kapura's  neck  and  pulling  his 
beard.  Vir  Singh  declares  the  exact  oppo- 
site. This  discrepancy,  as  the  learned  Ses- 
sions Judge  points  out,  does  not  necessarily 
absolve  either  accused;  but  it  adds  to  the 
doubt  in  our  minds  both  as  to  whether  the 
alleged  eye-witnesses  really  saw  any  assault 
and  as  to  whether  if  they  did  see  an  assault 
this  assault  was  the  one  in  which  Kapura 
was  killed.  Here  \ve  may  refer  to  a  discre- 
pancy between  the  evidence  given  by  Chan- 
an  (P.  W.  No.  4)  and  his  statement  made  to 
the  Police.  He  told  the  Police  that  he  saw 
Pohla  and  Subha  "scuffling  with  Kapura  in 
Bishan  Singh's  field.11  At  the  trial  he  alter- 
ed this  so  as  to  make  his  evidence  confirm 
with  that  of  others  and  declared  that  Pohla 
was  seated  on  Kapura  and  Subha  was  beat- 
ing him.  According  to  most  of  the  wit- 
nesses the  accused  after  assault  replaced 
their  bundles  of  grass  upon  their  heads  and 
went  off  to  the  village.  Ganda  Singh  says 
"they  ran  away.'1  Thereis  a  curious  passing 
reference  in  the  evidence  of  Pritam  Singh 
(P.  W.  No.  14)  to  a  second  beating  in  his  ex- 
amination-in-chief,  where  he  states  that  he 
did  not  see  accused  beating  Kapura  a 
''second  time.11  This  may  be  of  no  import- 
ance, but,  in  our  opinion,  suggests  that  it 
was  known  or  guessed  that  the  murder  took 
place  after  the  scuffle  at  sunset. 

We  have  given  due  consideration  to  the 
arguments  addressed  to  us  by  Mr.  Des  Raj 
SaWhney  who  points  out  the  absence  of  any 
motive  on  the  part  of  the  witnesses  to  charge 
the  accused  falsely.  We  admit  that  there 
is  force  in  this  argument.  But  we  are  un- 
able to  rid  our  minds  of  the  impression  of 
doubt  left  upon  us  by  the  evidence  as  a 


410 


whole.  We  are  not  convinced  that  the  mur- 
der was  seen  by  any  of  the  witnesses.  It  is 
upon  the  direct  evidence  of  the  eye- witnesses 
tlkit  the  conviction  depends  and  finding 
ourselves  unable  to  accept  and  act  upon  this 
evidence  we  accept  this  appeal  and  acquit 
Pohla. 
z.  K.  Appeal  accepted. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REVISION  APPLICATION 

No.  108  OF  11)25. 

August  25,  1925. 

Present:— Mr.    Kennedy,  J.  C., 

and  Mr  Rupchand  Bilaram,  NA,  J.  C. 

KISHANOH  AND— APPLICANT 

versus 
EMPEROR— OPPOSITE  PARTY. 

Penal  Code  (Act  XLV  of  I860),  ss  120-B,  420— 
Conspiracy,  charge  o/,1  essential  requisite*  of— Mature, 
(>/"  proof — llH7iere  an  express  provision  hat  been  made 
m  the  Code  for  the  punishment  of  such  conspiracy" 
meamntj  of 

A  charge  of  conspiracy  in.  respect  of  but  one  agree- 
ment between  several  accused  persons  to  cheat  such 
members  of  the  public  as  they  could  defraud  by 
deceitful  means  is  not  a  bad  charge,  [p.  421,  col  L] 

Jt  is  immaterial  if  all  the  accused  had  concocted  the 
scheme  of  the  conspiracy  or  that  all  of  them  should 
have  originated  it.  It  is  siiflicient  if  it  originated  with 
some  of  them  and  the  others  had  subsequently  joined 
the  original  conspirators  [p.  421,  col.  2  ] 

ft  \    W-  '  ,'h;     1SJ8)  8  C.  &  P  207,  relied  upon. 

0'<''».i/,<-"\  '/J M.  (1844)  11  O  &  F.  155;  9  Jur  25,1 
Cox  C  C.  113,  7  Ir.  L  R  261,  5  St  Tr.  (N.  s.)  1,  8  E. 
K  1061;  05  R  R  59,  referred  to 

The  conspiracy  may  be  proved  either  by  direct  evi- 
dence or  by  proof  of  circumstances  from  which  the 
Court  mav  presume  the  conspiracy,  [ibid.] 

R  v  Parsons,  (17G2)  1  Bl.  XV.  392;  92  E.  R.  222,  R. 
\.Murpky,  (l&W  8  C.  &  P.  297,  Emperor  v  Anappa, 
Bharamyauda,  9  Bom.  L.  R  347,  5  Cr.  L.  J.  323, 
Birendra  (-those  v.  Emperor,  1  Ind.  Cas  359,  37  C  4G7; 
1 1  C  W.  N.  1111,  11  Cr.  L.  J  453  and  Junto  Allarakhio 
v  Emperor,  34  Ind  Cas  649,  9  S.  L.  R.  223;  17  Cr.  L. 
J  233,  relied  upon. 

The  woids  "where  an  express  provision  has  been 
made  IP  the  Code  for  the  punishment  of  such  a  eon- 
spnacy"  appearing  in  s.  120-15  of  the  Penal  Code  do 
not  mean  that  where  there  is  proof  of  an  abetment 
of  an  offence,  the  charge  should  be  for  such  abetment. 
Jt  is  optional  for  the  Crown  to  proceed  for  abetment 
of  an  offence  committed  in  pursuance  of  the  con- 
spnacy  or  of  the  offence  of  conspiracy,  [p.  421,  col.  2; 
p.  422,' col  L] 

( 'dhasing  v.  Emperor,  35  Ind.  Cas.  G70;  10  fci.  L.  R. 
69  at  p  71,  17  Cr  L.  J.  366,  relied  upon. 

The  inclusion  in  a  charge  of  conspiracy  to  cheat  of 
certain  specific  offences  relied  on  by  the  prosecution 
in  proof  of  I  he  substantive  offence  of  cheating  does  Dot 
render  the  chnrge  illegal  as  being  in  respect  of  differ- 
ent offences  specified  therein,  [p,  422,  col.  1,] 


420 


KI8HANOHAND  V.  EMPEROR. 


R  v.  DeBerenger,  (1814)  3  M.  &  S.  67;  105  E.  R.  536; 
15  R.  R.  415  and  R.  v,  Gurncy,  (1869)  11  Cox  0.  0. 
41<i,  relied  upon 

Application  to  revise  the  judgment  of  the 
Sessions  Judge,  Hyderabad  Sind,  dated  the 
9th  April  1925. 

Mr.  Partabrai  D.  Punwani,  for  the  Ap- 
plicant. 

Mr.  C.  M.  Lobot  Acting  Public  Prosecutor, 
for  the  Crown. 

JUDGMENT.— The  appellant  Kishan- 
chand  and  three  other  accused  persons, 
namely,  Dharamdas,  Isarsing  and  Urs  have 
been  tried  together  on  a  charge  of  con- 
spiracy to  cheat  under  s.  120  B  read 
with  s,  420,  Indian  Penal  Code,  and  have 
been  convicted  and  sentenced  to  twelve 
months1  rigorous  imprisonment  and  a  fine  of 
Rs.  1,000  each  by  the  City  Magistrate  of 
Hyderabad.  The  appeals  filed  by  them 
before  the  Sessions  Judge  of  Hyderabad 
have  failed.  The  revision  applications 
filed  by  the  three  accused  Dharamdas, 
Isarsing  and  Urs  have  been  summarily  dis- 
missed. The  application  of  Kishanchand 
has  now  come  up  before  us  for  hearing. 

The  facts  which  led  to  the  trial  of  the 
four  accused  briefly  stated  are  that  in  June 
1924  one  Nebhraj  who  is  said  to  have  been 
one  of  the  gang  of  cheats  met  the  complain- 
ant Partabrai  at  a  certain  place  of  resort 
for  the  public  and  considering  him  to  be 
credulous  enough  to  fall  into  their  trap 
introduced  his  conspirator  Isarsing  to  the 
complainant  representing  Isarsing  to  be  the 
faithless  clerk  of  a  wealthy  and  extra- 
vagant Hindu  Sethia  who  had  helped 
Nebhraj  to  win  Rs.  3,000  from  his  Sethia 
by  playing  at  cards  and  that  he  would  help 
the  complainant  in  the  same  way  on  pay- 
ment of  a  handsome  commission.  The  process 
of  playing  with  a  specially  arranged  pack 
of  36  cards  was  explained  to  him  and  he  was 
taken  to  his  Sethia  who  was  no  other  man 
than  their  co-conspirator  Urs.  The  first 
day's  operation  resulted  in  Partabrai  winn- 
ing Rs  4,500.  The  Sethia,  however, 
would  not  part  with  the  money  on  the  pre- 
text that  Partabrai  had  brought  no  money 
with  him  and  in  the  event  of  his  losing  he 
would  have  paid  nothing.  This  made  Par- 
tabrai to  take  Rs.  2,000  on  a  subsequent 
day  to  enable  him  to  secure  his  previous 
day's  earning  and  to  make  more  money. 
The  result,  however,  was  disasterous  and 
not  only  did  he  lose  his  previous  day's 
gains  and  the  money  he  took  with  himself 
a  further  sum  of  Rs,  300.  He  ap- 


[92 1.  0. 1926] 

prised  his  brother  Chellaram  of  what  had 
happened  who  suspected  foul  play  and  put 
himself  in  touch  with  the  Police.  Partabrai 
subsequently  pretended  to  fall  in  with  the 
views  of  Isarsing  to  join  in  the  conspiracy 
and  by  inducing  other  victims  to  recoup 
himself  of  his  loss.  He  introduced  one 
Kishanchand  a  friend  of  his  who  after  being 
initiated  in  the  process  of  manipulating  the 
special  pack  of  cards  took  with  himself 
Rs.  5,000  to  play  with  the  wealthy  master 
of  Isarsing  who  on  this  occasion  was  per- 
sonated by  the  accused  Dharamdas  in  place 
of  the  accused  Urs.  The  Police  who  kept 
themselves  in  touch  with  what  was  being 
done  were  up  on  thescene  when  Sobhraj  was 
about  to  part  with  Rs.  4,980  having  lost 
that  amount.  The  applicant  appears  not 
to  have  taken  any  part  either  in  luring  Par- 
tabrai or  his  friend  Sobhraj  to  their  den  or 
to  have  been  in  anyway  implicated  in  the 
two  affairs. 

Subsequent  investigation  led  the  Police  to 
rope  in  the  applicant  as  a  co-conspirator. 
Nebhraj  has  not  been  run  in  as  his  services 
were  required  by  the  Police  in  bringing  to 
book  the  offenders. 

The  case  of  the  other  accused  presents  no 
difficulty.  They  were  all  concerned  in  at- 
tempts to  cheat  Sobhraj  and  whether  there 
was  a  conspiracy  to  cheat  other  persons 
besides  Sobhraj  or  not,  the  evidence  of  the 
conspiracy  to  cheat  him  is  conclusive  on 
that  point.  The  case  of  the  applicant  how- 
ever stands  on  a  different  footing. 

It  would  be  convenient  to  re-produce  the 
charge  framed  against  the  accused  and 
which  is  as  follows: 

"That  you  between  September  1920  and 
August  1924  at  Hyderabad  (and  other  places 
in  Sind)  did  agree  with  one  another  (and 
other  persons  unknown)  to  do  or  cause  to 
be  done  an  illegal  act  to  wit  the  commis* 
sion  of  cheating  by  deceiving  persons  by 
inducing  them  to  play  with  cards  dice  and 
by  pretending  to  double  currency-notes  and 
thereby  to  induce  them  to  deliver  money 
and  curreacy-notes  to  you.  You  were  thus 
partners  to  a  criminal  conspiracy  and  in 
pursuance  of  that  said  conspiracy  you  have 
done  the  following  acts. 

1.  In  October  1920  you  (Dharamdas  and 
Urs)  induced  Shewaram  to  part  with  9  notes 
of  Rs.  100  each  on  the  pretence  of  doubl- 
ing them. 

2.  You  Dharamdas  and  Kishanchand  in 
company  with  another  person  unknown  in- 
duced in    similar  manner   Jethomal  to  d«h 


.  0. 1*26 J 


KISHANCHAND  V.   EMPEROR, 


421 


liver  to  you  notes  of  Rs.  500  in  October 

1923  on  the  same  pretext. 

3.  You  Isarsing  on    26fch  or  27th  June 

1924  induced  Partabrai  to  play   with  par- 
ticular cards  with  your  pretended  master 
Urs    in  a    particular    manner  suggesting 
that  he,  i.  e,,    Partabrai  was  only  to  win. 
You  taught  him  the  trick  of  the  play  and 
made    him    win     Rs.    4,500    which    were 
never  paid  to  him.    You  Isarsing   and  Urs 
dishonestly    induced    Partabrai     to  bring 
money  to  take  his  gains  and  thus  dishonestly 
induced  him  to  part  with  Rs.  2,000  which 
you  took  away. 

4.  You  Isarsing  and  Dharamdas  in  the 
above  related  manner  on  31st  July  1924  or 
1st  August  1924   induced  Sobhraj    to    play 
and  make  an  attempt  of    making  him  de- 
liver to  you  Rs.  4,980  the  payment  being 
interrupted    by  the  arrival  of  the  Police. 

5.  You    Dharamdas    along     with    Bava 
Subhlal  (since  deceased)  induced  Chellaram 
Pleader  to  play  with  you  loaded    dice  and 
dishonestly    induced    him    to    part     with 
Hs.  1,600  on  Thadri  holidays  in  September 
1923.    And  thereby  committed  an  offence 
punishable  under  s.  120- B  read  with  s.  420, 
Indian  Penal  Code  and  within  my    cogniz- 
ance. I  hereby  direct  that  you    be  tried  by 
me  on  the  said  charge". 

Several  objections  have  been  raised  by 
the  learned  Pleader  for  the  applicant  as  to 
the  legality  of  the  charge  framed  against 
the  accused.  They  are  based  on  a  miscon- 
ception of  what  the  charge  is  and  are  due 
to  the  failure  to  keep  in  view  the  distinc- 
tion between  the  charge  and  the  evidence 
adduced  in  proof  of  the  charge. 

The  gist  of  the  offence  of  criminal  cons- 
piracy as  defined  in  s.  120- A,  Indian  Penal 
Code,  which  is  by  itself  punishable  as  a 
substantive  offence  is  the  very  agreement 
between  the  co-conspirators  to  do  or  cause 
to  be  done  an  illegal  act  or  a  legal  act  by 
illegal  means  subject  however  to  the  pro- 
viso that  where  the  agreement  is  not  an 
agreement  to  commit  an  offence  the  agree- 
ment does  not  amount  to  a  conspiracy  un- 
less it  is  followed  up  by  an  act  done  by  one 
or  more  persons  in  pursuance  of  such  agree- 
ment. 

The  case  of  the  prosecution  as  disclosed 
by  the  charge  in  effect  was  that  at  one  time 
6r  the  other  between  the  years  1920  and 
1924  there  was  an  agreement,  between  the 
four  accused  to  cheat  such  members  of  the 
public  as  they  could  defraud  by  deceitful 
means  inter  alia  by  playing  with  a  special- 


ly arranged  pack  of  cards  loaded  dice  or 
by  pretending  to  double  currency-notes  for 
them. 

As  so  stated  there  was  nothing  wrong 
about  the  charge.  It  was  a  charge  in  res- 
pect of  but  one  agreement  which  afforded 
the  Crown  one  single  cause  of  action  to 
try  all  the  accused  jointly 'for  one  single 
offence,  namely,  the  offence'  of  cheating  the 
public  within  the  meaning  of  ss.  233  and 
239,  Cr.  P.  C.  It  was  also  immaterial  if  all 
the  four  had  concocted  the  scheme  of  the 
charge  or  that  all  of  them  should  have 
originated  it.  It  was  sufficient  if  it  originat- 
ed with  some  of  them  and  others  had  sub- 
sequently joined  the  original  conspirators. 
[R.  v.  Murphy  (I).] 

It  was  equally  open  to  the  Crown  to  prove 
the  conspiracy  by  direct  evidence  which 
as  observed  by  Earl,  J.,  in  ft.  v.  Duffidd  (2) 
is  hardly  available  in  such  cases  or  by  proof 
of  circumstances  from  which  the  Court  may 
presume  the  conspiracy  A',  v.  Parsons  (3),  R. 
v.  Murphy  (1),  Emperor  v.  Annappa  Bharam- 
ganda  (4)  Birenara  Kumar  Ghose  v.  Emp&ror 
(5),  and  Jumo  Allarakhio  v.  Emperor  (6).  In 
the  present  case  the  Crown  relied  on  certain 
criminal  acts  of  the  accused  said  to  have 
been  done  in  pursuance  of  the  conspiracy. 
The  fact  that  such  criminal  acts  were  in 
themselves  substantive  offences  again  cast 
no  obligation  on  the  Crown  to  prosecute  the 
individual  offenders  for  such  specific  offences 
or  deprive  the  Crown  of  its  right  to  proceed 
against  all  of  them  for  conspiracy  pure  and 
simple. 

The  plea  that  where  the  only  evidence 
given  in  proof  of  the  conspiracy  is  the  evi- 
dence of  abetment  of  an  act  which  is  in  itself 
an  offence  is  equ  ally  untenable.  As  pointed  out 
by  Pratt,  J.  C.  In  Udhasing  v.  Emperor  (7) 
the  words  "Where  an  express  provision  has 
been  made  in  the  Code  for  the  punishment 
of  such  a  conspiracy"  appearing  in  s  120-B, 
Indian  Penal  Code,  do  not  mean  that  where 
there  is  proof  of  an  abetment  of  an  offence 
the  charge  should  be  for  such  abetment 
and  that  it  is  optional  for  the  Crown  to  pro- 
ceed for  abetment  of  the  offence  committed 

(1)  (1838)  8  0.  &  P.  297. 

(2)  (1851)  5  Oox.  0  0.  404. 

(3)  (1762)  1  Bl.  W.  392;  96  E.  R  222. 

(4)  9  Bom  L.  R.  347;  5  Or.  L.  J.  323. 

(5)  7  Ind  Gas.  359;  37  C.  467,  14  0.  W.  N.  1114;  11 
Or.  L.  J  453. 

(6)  31  Ind.  Gas  619,  9  S.  L  R.  223;  17  Or.  L.  J. 
233 

(7)  35  Ind.  Cas.  670;  10  8.  L.  R.  69  at  p.  71;  17  Cr.  L. 
J.  366. 


422 


KISHANCHAND  V.  EMPBROft, 


in  pursuance  of  conspiracy  or  of  the  offence 
of  conspiracy. 

The  inclusion  in  the  charge  of  certain 
specific  offences  relied  on  by  the  prosecu- 
tion in  proof  of  the  substantive  offence  of 
cheating  again  had  not  the  effect  of  render- 
ing the  charge  illegal  sis  being  one  in  res- 
pect of  the  different  offences  specified 
therein.  The  recital  of  the  specific  offences 
was  at  most  a  surplusage.  Though  it  is 
not  uncommon  to  set  out  in  the  charge 
overt  acts  by  which  the  object  of  the  con- 
spiracy is  sought  to  be  attained  recital  of 
such  acts  was  not  essential  in  the  present 
case.  Defrauding  the  public  by  deceitful 
means  is  an  oifence  and  the  allegation  of 
the  charge  of  such  object  without  specify- 
ing the  persons  defrauded  was  sufficient  to 
maintain  a  charge  of  conspiracy  li.  v.  De 
lierenger  (8),  and/t?  v.  Gnrney(9)t  Halsbury's 
Laws  of  England,  Vol.  IX  note  to  para.  1401. 

Though  the  several  technical  objections 
raised  on  behalf  of  the  applicant  have  fail- 
ed we  are  not  satisfied  that  the  evidence 
relied  on  by  the  prosecution  is  sufficient  to 
maintain  the  conviction  against  the  applic- 
ant. The  first  circumstantial  piece  of  evi- 
dence relied  on  by  the  Crown  is  the  deceit 
practised  on  one  Shewaram  to  part  with 
currency-notes  of  Rs.  900  on  the  false 
pretence  of  doubling  them,  The  only 
accused  concerned  in  it  were  Dharamdas 
and  Urs. 

The  second  act  relied  on  is  that  in  Septem- 
ber 1928  three  years  later  when  again  the 
accused  Dharamdas  in  company  not  of  the 
applicant  or  any  of  the  other  accused  per- 
sons but  of  one  Bawa  Sukhlal  since  de- 
ceased cheated  one  Chellaram  Pleader  by 
dishonestly  inducing  him  to  part  with 
Es.  1,000  by  playing  with  loaded  dice. 

There  is  no  evidence  in  either  of  these 
two  cases  which  could  inculpate  the  appli- 
cant as  having  taken  any  part  in  them  or 
which  would  show  that  the  deceit  was  per- 
petrated in  pursuance  of  a  common  agree- 
ment to  which  the  applicant  was  a  party. 

The  third  act  is  the  only  one  in  which 
the  applicant  is  said  to  have  been  directly 
concerned.  It  is  said  that  in  October  1923 
the  applicant  the  accused  Dharamdas  and 
an  unknown  person  cheated  one  Jethmai 
Pleader  of  currency-notes  oi  Rs.  500  on 
the  pretext  of  doubling  them.  The  ace  us- 

(8)  (1814)  3    M.  &  S.    67,   105    E.  R.  536;    15  R.    R. 
10}  (1869)  11  Cox.  0.  0.  414. 


[92  L  0. 1926] 

ed  Issarsing  and  Urs  again  appear  to  have 
taken  no  part  in  this  deal. 

The  fourth  and  fifth  acts  of  cheating 
Partabrai  in  June  1924  and  of  attempting 
to  Hreat  Sobhraj  in  August  1924  which  led 
to  the  apprehension  and  the  trial  of  the 
accused  again  in  no  way  inculpate  the  ap- 
plicant 

The  only  connecting  link  between  the 
different  acts  complained  of  is  that  the  ac- 
cused Dharamdas  is  a  common  factor  in  all 
of  them.  This  evidence  by  itself  is  not 
sufficient  to  warrant  our  holding  that  all  or 
at  any  rate  the  third  act  of  October  1923  in 
which  the  applicant  was  directly  concerned 
was  done  in  pursuance  of  one  common 
agreement  between  all  the  four  accused 
persons. 

The  evidence  of  Dharamdas  being  a  com- 
mon factor  in  all  the  acts  complained  of  is 
equally  consistent  with  the  existence  of 
more  than  one  separate  conspiracy  and  to 
the  third  act  having  been  done  in  pursuance 
of  a  separate  conspiracy  to  which  Dharam- 
das and  the  applicant  were  parties  but  the 
other  two  accused  persons  were  not  parties. 

In  0* Council  v.  Reg.  (10)  where  a  Court 
in  an  indictment  charged  several  defendants 
with  conspiracy  together  to  do  several 
illegal  acts  and  the  Jury  found  some  of  the 
defendants  to  do  one  of  the  acts  and  guilty 
of  conspiracy  with  others  of  the  defendants 
to  do  another  of  the  acts  such  finding  was 
held  bad  as  amounting  to  a  finding  that  one 
defendant  was  guilty  of  two  conspiracies 
though  the  Court  charged  only  one.  In  the 
present  case  the  charge  and  the  only  charge 
for  which  under  the  circumstances  of  the 
case  all  the  accused  could  have  been  jointly 
tried  framed  against  them  was  in  respect  of 
an  agreement  to  cheat  the  public  generally. 
And  if  the  evidence  is  equally  consistent 
with  the  existence  of  two  separate  agree- 
ments one  in  which  Dharamdas  and  the 
applicant  alone  were  concerned  and  the 
other  in  which  Dharamdas  and  the  other 
two  accused  were  concerned  the  irresistible 
inference  that  all  the  acts  were  done  in  pursu- 
ance of  one  agreement  does  not  arise  and  the 
charge  as  laid  cannot  be  said  to  be  con- 
clusively proved  against  the  applicant.  This 
aspect  of  the  case  has  escaped  the  attention 
of  the  learned  Sessions  Judge. 

We  think  under  the  circumstances  the 
applicant  is  eijtitled  to  the  benefit  of  the 

(10)  (1814)  11  C.  &  F.  155;  9  Jur.  25;  1  Cox.  0.  0 
413,  7  Ir.  L.'R.  261,  5  St.  Tr.  (x.  s.)  1;  8  E.  R.  1061;  65 
R  R  59. 


[92  1,0.  1926J  -  DAYA  RAM  v.  KMPBROR. 

doubt  and  we  accordingly  order  that    he  be 
acquitted  and  discharged  aad  fine  if  paid  be 
refunded, 
z.  K.  Revision  alloived. 


433 


LAHORE  HIGH  COURT. 

CRIMINAL  APPEAL  No.  454  OF  1925. 

July  1(5,  1925. 
Present : — Mr.  Justice  Martineau  and 

Mr.  Justice  Jai  Lai. 
DAYA  RAM— APPELLANT 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  /,<?<?#),  s  512— 
Absconder — Evidence  recorded  in  absence  Finding  as 
to  absconding,  whether  necessary 

Section  512  of  the  Or  P  C  requires  only  that 
before  the  Court  record b  the  depositions  of  the  wit- 
nesses for  the  prosecution  it  should  be  proved  that 
the  accused  peison  has  absconded  and  that  there  is 
no  immediate  prospect  of  arresting  him,  and  not  that 
a  finding  should  be  recorded  to  that  c fleet,  [p.  423, 
col  2] 

A  M'si'-"  :m  •  before  renording  evidence  under  s.  512, 
Cr  P.  (J  ,  took  the  statements  of  two  constables  who 
had  searched  for  the  accused  and  hud  not  been  able 
to  lind  him,  and  also  issued  a  proclamation,  against 
th^  accused  under  s  87  of  the  Code 

Held,  that  the  lequircments  of  b  512,  Or  P  G  ,  had 
been  fulfilled  and  that  evidence  had  been  propeily 
recorded  under  that  section  |_p  424,  col.  1  ] 

t  Criminal  appeal  from  an  order  of  the  Ses- 
sions Judge,  Ludhiana,  dated  the  2lst  April 
1925. 

Mr,  Abdul  Aziz,  for  the  Appellant. 

Mr.  Abdul  Rashid,  Assistant  Legal  Re- 
membrancer, for  the  Respondent. 

JUDGMENT.— The  appellant,  Daya 
Ram,  a  Jat  of  Sudhar,  in  the  Ludhiana 
District,  has  been  sentenced  to  death  for 
the  murder  of  one  Mangal  Singh,  whose 
death  was  caused  by  numerous  incised 
wounds  on  the  head.  The  case  for  the  pro- 
secution is  briefly  as  follows:  — 

On  the  morning  of  the  4th  February  1922 
Mangal  Singh  got  drunk  in  a  drinking  bout 
at  the  house  of  a  friend  named  Nigahiya 
(P.  W.  No.  4)  at  Sudhar,  and  was  after- 
wards brought  by  Nigahiya  and  Indar  (P. 
W.  No.  15)  to  the  shop  of  Pala  Ram  (P.  W. 
No.  7),  where  he  lay  down.  Shortly  after- 
wards the  appellant  came  to  the  shop  and 
called  out  to  Mangal  Singh.  The  latter 
did  not  reply  and  the  appellant  then  went 
into  the  shop  and  with  a  chhavt,  the  blade 
of  which  he  had  concealed  under  his  arm, 
he  dealt  Mangal  Singh  a  number  of  blows 
on  the  head,  and  neck,  The  assault  was 


witnessed  by  Atma  Singh  (P.  W.  No,  2)  aad 
Pala  Ram's  uncle  Thakar  Das  (P.  W.  No.  3) 
who  were  sitting  at  the  shop.  They  raised 
an  outcry,  and  Thakar  Das  went  and  in- 
formed Pala  Ram,  who  was  at  his  house  at 
the  time.  Meanwhile  the  appellant  left 
Pala  Ram's  shop  and  went  to  the  Sath, 
where  several  men  were  sitting,  and  attack- 
ed one  of  them,  named  Sucha  Singh  (P.  W. 
No.  10),  with  his  ehhavi,  one  blow  striking 
Sucha  Singh  on  the  arm.  Two  other  men, 
Sawan  Singh  (P.  W.  No.  11)  and  Sham 
Singh  (P.  W.  No,  12),  managed  to  seize  the 
chhavi  from  the  appellant,  who  then  ran 
away  and  absconded  for  nearly  three  years. 
The  murder  appears  to  have  been  committ- 
ed in  consequence  of  an  altercation  which 
had  occurred  when  Mangal  Singh  shortly 
before  coming  to  Pala  Ram's  shop,  met  the 
appellant  and  asked  him  whether  a  camel 
which  the  appellant  had  with  him  was  a 
stolen  one. 

We  see  no  reason  for  rejecting  the  evi- 
dence of  Atma  Singh  and  Thakar  Das,  who 
have  deposed  to  having  witnessed  the  com- 
mission of  the  murder  by  the  appellant, 
Mangal  Singh  was  found  lying  dead  in  Pala 
Ram's  shop,  and  Pala  Ram's  evidence  shows 
that  Atma  Singh  and  Thakar  Das  at  once 
told  him  and  the  other  people  who  collect- 
ed that  the  appellant  had  committed  the 
murder. 

Thakar  Das1  deposition  is  that  which  he 
made  before  the  Honorary  Magistrate  of 
Raikot  in  1922  in  the  proceedings  taken 
under  s.  512  of  the  Or.  P.  0.,  as  he  could  not 
be  found  at  the  time  of  the  Magisterial 
enquiry  or  of  the  trial  in  1925.  It  is  contend- 
ed for  the  appellant  that  the  statement  made 
by  Thakar  Das  in  those  proceedings  is 
inadmissible,  because  no  finding  was  given 
in  them,  that  the  accused  person  had 
absconded  and  that  there  was  no  immediate 
prospect  of  arresting  him.  But  the  section 
requires  only  that  before  the  Court  records 
the  depositions  of  the  witnesses  for  the  pro- 
secution it  should  be  proved  that  the  accus- 
ed person  has  absconded  and  that  there  is 
no  immediate  prospect  of  arresting  him, 
and  not  that  a  finding  should  be  given  to 
that  effect.  The  Honorary  Magistrate  in  the 
proceedings  of  1922  before  he  took  down 
the  depositions  of  the  witnesses  in  regard 
to  the  murder  took  the  statements  of  two 
constables,  who  had  searched  for  the  accus- 
ed and  had  not  been  able  to  find  him. 
Those  statements  afforded  the  proof  that 
was  required,  and  the  fact  that  the  Hono- 


424 


MOMOON  V,  IBRAHIM. 


*ary  Magistrate  issued  a  proclamation 
against  the  appellant  under  s.  87  of  the 
Cr,  P.  0.  would  show  that  he  was  satisfied 
with  the  proof  given.  Counsel  for  the  ap- 
pellant has  referred  to  Wahid  v.  Empress 
(1)  Gkurbin  Bind  v.  Queen-Empress  (2)  and 
Rustam  v.  Emperor  (3).  In  the  first  of  those 
cases  no  evidence  had  been  taken  as  to  the 
accused  person  having  absconded,  and  in 
the  second  the  deposition  recorded  had  not 
been  recorded  under  s.  512,  Or.  P,C.,  against 
the  abscpnder,  but  had  been  recorded  in 
the  ordinary  course  of  proceedings  against 
other  persons.  Those  two  cases  are,  there- 
fore, not  in  point.  In  the  third  case  the 
learned  Judges  expressed  the  opinion  that 
the  language  of  s.  512  showed  that  the 
Court  which  records  the  proceedings  must 
first  of  ail  record  an  order  that  in  its 
opinion  it  had  deen  proved  that  the  accused 
person  has  absconded  and  that  there  is 
no  immediate  prospect  of  arresting  him, 
but  a  different  view  on  this  point  was 
taken  by  the  same  Court  in  Bhagwati  v. 
Emperor  (4).  In  the  present  case  it  was 
proved  in  the  proceedings  taken  against  the 
appellant  under  s.  512,  Cr.  P.  C.,  in  1922 
that  he  had  absconded  and  that  there  was 
no  immediate  prospect  of  arresting  him, 
and  we  hold,  therefore,  that  Thakar  DasJ 
statement  taken  in  the  proceedings  under 
that  section  was  admissible  in  evidence  at 
the  trial. 

Besides  the  direct  evidence  of  Atma 
Singh  and  Thakar  Das  in  regard  to  the 
murder  there  are  the  statements  of  P.  Ws. 
Nos.  10—13  as  to  the  appellant  having  come 
to  Sath  armed  with  a  chhavi  and  attacked 
Sucha  Singh.  The  chham  was  handed  over 
by  Sawan  Singh  (R  W.  No.  11)  to  the  Sub- 
Inspector  on  his  arrival,  and  was  forward- 
ed to  the  Imperial  Serologist  who  found  it 
to  be  stained  with  human  blood. 

The  statement  made  by  Nigahiya  before 
the  Committing  Magistrate  was  admitted 
in  evidence  under  s.  33  of  the  Evidence 
Act  as  he  was  in  the  Malerkotla  Jail.  Objec- 
tion has  ^  been  taken  to  this,  but  even  if 
Nigahiya's  statement  is  excluded  ihere  is 
other  evidence  also  against  the  appellant 
which  is  ample.  Nigahiya's  statement  was 
in  regard  to  the  altercation  which  led  to 

(1)  21  P.  R.  1883  Or. 

<2J  10  0.  1007;  5  Jnd.  De?.  (v  s.)  734 

(3;;Ulud  Cas817;  38  A.  2Jf  13A.L.J.  1013;  16 
ur.  i  >.  «j  oUi. 

(4)  48  Ind,  Gas,  181;  41  A.  63,  16  A,  L,  J.  902:  20  Or 
1;,  J,  U< 


[92  I.  0. 1926) 

the  commission  of  the  crime  and  that 
altercation  is  mentioned  also  by  Ishar  (P. 
W.  No.  5)  and  Shera  (P.  W.  No.  6). 

The  guilt  of  the  appellant  who  has  pro- 
duced no  evidence  in  his  defence,  has,  in  our 
opinion,  been  clearly  established.  We  ac- 
cordingly dismiss  the  appeal  confirming  the 
sentence  of  death. 

z.  K.  Appeal  dismissed. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REVISION  APPLICATION  No.  137 

OF  1925. 

September  21,  1925. 
Present : — Mr.  Kennedy,  J.  C.,  and 

Mr.  Tyabji,  A.  J.  C. 
MOMOON— APPLICANT 

versus 
IBRAHIM— OPPONENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  s.  250— 
Order  for  compensation — Appeal — Notice  to  accused, 
whether  necessary, 

Though  not  legally  necessary,  it  is  desirable  in 
general  that  an  accused  person  should  have  notice 
of  an.  intended  interference  with  an  order  of  com- 
pensation made  in  his  favour  under  a.  250  of  the  Cr, 
P  0.  [p.  425,  col.  1,] 

Application  to  revise  an  order  of  the  Sub- 
Divisional  Magistrate,  Tatta,  dated  the  1st 
May  1925. 

Mr.  Tulsidas  Amerdinomal,  for  the  Appli- 
cant. 

Mr.  Thakurdas,  for  the  Opponent. 

Mr.  C.  M.  Lobo,  Acting  Public  Prosecutor, 
for  the  Crown. 

JUpQMENT.—This  is  an  application 
in  revision  against  the  order  of  the  Sub- 
Divisional  Magistrate,  Tatta,  who  has  set 
aside  an  order  of  the  Second  Class  Magis- 
trate, Ketibunder,  awarding  Rs.  100  as 
compensation  to  the  accused,  for  a  false  and 
malicious  prosecution  brought  against  him 
by  the.com plainamt. 

It  is  stated  before  us  that  the  accused 
had  no  notice  of  the  proceedings  which  the 
Sub-Divisional  Magistrate  held ;  and  that 
he  had  no  opportunity  of  presenting  his 
aspect  of  the  case  in  appeal.  Inasmuch 
as  the  Sub-Divisional  Magistrate  set  aside 
the  order  of  compensation,  we  consider  it 
would  have  been  desirable  if  notice  had 
been  issued  to  the  present  applicant,  be- 
fore the  Sub-Divisional  Magistrate  had 
set  aside  the  order  in  favour  of  the 


QAIM  DIN  V,  EMPEROR. 


[94  I.  0.  1926] 

ed.  It  is  pointed  out,  on  the  other  hand  that 
in  the  case  of  Ambakkaga^i  NaglReddiv. 
B'asappa  (1)  it  was  held  that  no  such  notice 
was  legally  necessary.  That  is  true,  but 
it  is  desirable  in  general  that  before  an 
order  of  this  kind  is  made,  the  accused 
person  should  have  notice  of  any  intended 
interference  with  an  order  of  compensa- 
tion made  in  his  favour.  In  the  _  present 
case,  however,  we  have  looked  into  the 
judgments  of  the  Second  Class  Magistrate 
and  the  Sub-Divisional  Magistrate,  and  we 
think  it  unnecessary  to  interfere  in  revision. 

The  application  will,  therefore,  be  dis- 
missed. 

p.  B.  A.  Application  dismissed. 

(1)  1  Ind  Oas  79;  33  M.  89;  5  M  L  T.  262;  19  M.  L. 
J.  130,  0  Or,  L.  J.  150. 


425 


LAHORE  HIGH  COURT. 

CuixiiNLL  REVISION  No.   1344  OF  1924. 

December  15,  1924. 

Present: — Mr   Justice  Abdul  Raoof. 

QAIM  DIN  AND  ANOTHER— ACCUSED — 

PETITIONERS 

versus 
EMPEROR— RESPONDENT. 

Penal  Code  (ActXLV  of  18M),  ss  1+11,  J+57—  Stolen 
proprety  found  in  house  occupied  by  several  persons- 
Exclusive  possession—  Offence,, 

Certain  stolen  property  was  found  concealed  in  a 
dung  heap  in  the  courtyard  of  a  house  which  was 
owned  and  occupied  by  four  persons  • 

Held,  that  the  property  could  not  be  said  to  be  in 
the  exclusive  possession  of  any  of  the  occupants  of  the 
house  and  tliat  none  of  them  could,  therefore,  be 
convicted  of  any  offence  under  9.  457  or  411  of  the 
Penal  Code.  [p.  425,  col.  2J 

Petition,  for  revision  of  an  order  of  the 
Additional  Sessions  Judge,  Gujranwalaat 
Bialkot,  dated  the  25th  August  1924,  affirm- 
ing that  of  the  Magistrate  First  Class, 
Gujranwala,  dated  the  12th  July  192i. 

Mr.  M.  L.  Puri,  for  the  Petitioner. 

The  Government  Advocate,  for  the  Re- 
spondent. 

JUDGMENT.— On  the  night  between 
the  6th- 7th  of  May  1924  a  burglary  was 
committed  in  the  house  of  Mathra  Das 
complainant  and  some  property  was  stolen. 
Somehow  suspicion  fell  upon  the  appli- 
cants Qaim  Din  and  Muhammad  Din  and 
their  brother  Sardara.  On  information 
being  given  to  the  Police  it  arrived  at  the 
house  belonging  to  these  three  brothers 
and  their  father  Ghulam  Mohammad,  Some 


property  was  found  in  a  dung  heap  in  the 
courtyard  of  the  house  and  some  was 
recovered  from  kotha  No.  3.  All  the 
three  brothers  and  the  father  Ghulam 
Mohammad  were  prosecuted.  The  case 
against  Sardara  being  doubtful  he  was 
given  the  benefit  of  the  doubt  and  was 
acquitted  by  the  Magistrate  The  petition- 
ers were  convicted  under  s.  457  of  the 
Indian  Penal  Code  and  sentenced  to  two 
years'  rigorous  imprisonment  each.  Ghulam 
Mohammad  was  found  guilty  under  s.  414 
of  the  Indian  Penal  Code  and  was  sentenc- 
ed to  one  year's  rigorous  imprisonment. 
On  appeal  the  learned  Additional  Sessions 
Judge  found  the  case  against  Ghulam 
Mohammad  also  to  be  doubtful  and  acquit- 
ted him.  He,  however,  upheld  the  con- 
victions of  the  applicants  and  maintained 
their  sentences.  They  have  come  up  in 
revision  to  this  Court. 

The  following  facts  have  been  established 
by  the  evidence  for  the  prosecution  in  this 
case  :— 

(1)  That  some  of  the  stolen  property  was 
identified   by  Mathra    Das  complainant  as 
his    property      The    petitioners    did    not 
claim  the  articles  recovered   as   their  pro- 
perty. 

(2)  That  some  of  the  stolen   property  was 
found  in  the  dung    heap  situated  in  the 
courtyard    of  the    house  and    some   other 
property  was  recovered    from  kotha  No.  3. 
If  this  finding  had  stood  alone  the  Courts 
below  would  not  have  convicted   the  peti- 
tioners, because  the  house  admittedly   be- 
longed to  all  the  four  persons,  namely,   the 
three  brothers  and  the  father,  jointly,  and 
it  could  not  be  said  with  certainty  as  to 
who  was  in  exclusive  possession  of  thestolen 
articles.     There  was,    however,  some  evi- 
dence which  went  to  show  that  the  peti- 
tioners were  seen  soon  after  the  theft  car- 
rying away  some  trunks,  etc.    This  evidence 
in  the  opinion  of  the  Courts  below  connect- 
ed the  petitioners  with  the  stolen  property. 

The  trunks  and  the  bags  recovered  from 
the  house  were  not,  however,  identified  by 
the  witnesses  as  being  those  which  they 
had  seen  the  petitioners  carrying  away. 
This  evidence,  therefore,  falls  short  of 
bringing  home  to  the  petitioners  the  theft  of 
the  stolon  articles.  The  circumstances  no 
doubt  raise  a  great  suspicion  against  the 
petitioners  and  make  it  highly  probable 
that  the  things  were  stolen  by  them  ;  but 
itcajnot  be  said  to  be  conclusive.  Under 
circumstances,  in.  my  opinion,  the 


426 


RAM  SARtfP  V.  EMPEROR, 


Courts  below  were  not  justified  in  holding 
that  the  case  has  been  conclusively  proved 
against  the  petitioners  In  any  event  there 
is  some  room  for  doubt  and  the  petitioners 
must  be  given  the  benefit  of  that  doubt. 

I  accordingly  accept  the  petition  for 
revision,  set  aside  the  convictions  and 
sentences  of  the  petitioners  and  order  that 
they  be  forthwith  released.  Qaim  Din 
petitioner  is  on  bail.  He  shall  be  discharg- 
ed from  his  bail- bond. 

Petition  accepted. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  453  OF  1925. 

August  31,  1925. 

Present : — Mr.  Justice  Kanhaiya  Lai. 
Pandit  RAM  8ARTJP—  APPLICANT 

-yer.su.s- 
EMPEROR—OrPosiTB  PARTY, 

U.  P.  Municipalities  Act  (II  of  1916),  ss.  118,  17S, 
18''>t  18ti>  307 --Sanction  to  erect  ohahutra  -Notice,  pro- 
hibiting stone  brackets  to  support  chabutra,  disregard 
of  —Offence 

Where  a  sanction  to  erect  a  chabutra  clo^a  not 
limit  the  discretion  of  the  builder  tu  build  it  in  any 
particular  form,  it  is  open  to  him  to  erect  stone  brackets 
for  supporting  the  new  chabutra  and  his  refusal  to  atop 
the  erection  of  the  brackets  on  a  notice  being  served 
on  him  under  s  186  of  the  U  P  Municipalities  Act 
does  not  make  him  criminally  liable 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Aligarh,  dated  the  2nd 
June  1925. 

Mr.  M.  A.  Aziz,   for  the  Applicant. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT,— The  applicant  Ram 
Sarup  applied  to  the  Municipal  Board  of 
Hathras  to  extend  his  chabutra  by  two  feet 
in  an  almost  triangular  line  so  as  to  make 
the  new  chabutra  and  the  old  chabvtra 
form  a  rectangle.  He  also  mentioned  that 
he  may  be  granted  permission  to  put  a 
stone  on  the  drain  to  serve  as  a  stop  for 
getting  on  to  the  chabutra.  The  map 
attached  to  the  application  explains  the 
position  and  the  form  in  which  the  new 
chabutra  was  to  be  built.  This  sanction 
was  granted.  At  the  time  the  application 
for  sanction  was  made,  it  was  not  men- 
tioned that  the  new  chabutra  would  rest 
on  stone  brackets.  The  applicant  is  now 
being  prosecuted  for  having  put  up  stone 
brackets  to  support  the  new  chabutra,  for 
the  construction  of  which  the  Municipality 


[921.0.1926] 

had  already  granted  its  sanction.  A  chabutra 
can  only  rest  on  earth  or  on  pillars  or  on 
brackets,  and  as  the  sanction  did  not  limit 
the  discretion  of  Ram  Sarup  to  build  it  in 
any  particular  form,  it  was  open  to  him  to 
erect  stone  brackets  for  supporting  the  new 
chabutra.  The  prosecution  is  wholly  un- 
justified. The  construction  of  the  chabutra 
was  made  with  the  sanction  of  the  Muni- 
cipal Board  obtained  under  s.  178  of  the 
U.  P.  Municipalities  Act,  II  of  1910,  and 
a  separate  sanction  for  the  erection  of 
stone  brackets  to  support  the  chabutra  w&s 
not  needed.  The  Municipal  Board  issued 
a  notice  under  s,  186  requiring  Ram  Sarup 
to  stop  the  erection  of  the  stone  brackets 
but  he  refused  to  stop  the  erection.  The 
Trying  Magistrate  and  the  learned  Sessions 
Judge  were  of  opinion  that  by  refusing  to 
stop  the  erection  of  the  stone  brackets  he 
had  incurred  a  liability  under  s.  307  of  the 
Act,  but  B.  18G  read  with  s.  185  refers  to  the 
construction  made  either  in  contravention 
of  the  requirements  of  s.  178,  or  in 
contravention  of  the  written  directions 
given  by  the  Board  under  s.  118  or  any  by- 
law. There  is  no  by-law  pointed  out  to 
us  in  this  case,  and  there  is  nothing  in 
the  sanction  to  forbid  the  use  of  stone 
brackets  as  supports  for  the  chabutra.  The 
learned  Sessions  Judge  also  observes  that 
Ram  Sarup  had  extended  his  chabutra  be- 
yond the  size  sanctioned  by  the  Board  by  6 
inches,  but  there  is  no  mention  of  any  such 
extension  in  the  notice  issued  to  him  by 
the  Municipal  Board,  nor  was  that  one  of 
the  grounds  taken  by  the  Municipal  Board 
in  the  Trial  Court  In  fact  the  contention 
of  Ram  Sarup  is  that  his  chabutra  does  not 
extend  beyond  2  feet  any  where,  and  that 
matter  not  having  been  a  part  of  the  origi- 
nal complaint,  it  cannot  be  tried  here. 
The  application  is  allowed  and  the  convic- 
tion and  sentence  passed  on  the  applicant 
are  set  aside.  The  fine  if  realised  will  be 
refunded. 

N.  H.  Application  allowed. 


[92  L  0. 1926] 


OULABCHAND  RUPJT  V,  EMPEROR, 


427 


BOMBAY  HIGH  COURT. 

CRIMINAL  APPLICATION  FOR  REVISION 
No.  76  OF  1925. 
June  12,  1925. 
Present— Mr.  Justice  Mirza  and 

Mr.  Justice  Percival. 

GULAJBOHA.ND  RUPJI— ACCUSED  No.  1— 
APPLICANT 

versus 
EMPEROR— OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898],  s  195  (G) 
— Document  kanded  up  to  Judye  but  not  placed  on 
file,  whether  "produced" — Prosecution  in  respect  of 
document— Complaint,  whether  necessary 

A  decree-holder  filed  an  application  for  execution 
of  his  decree.  In  answer  to  that  application  the  de- 
fendant produced  what  purported  to  be  a  receipt  in 
respect  of  a  certain  payment  which  he  alleged  he  had 
inade  to  the  decree-holder  and  handed  iip  the  docu- 
ment to  the  Judge.  The  Judge  did  not  placft  the 
document  on  the  file  on  the  ground  that  Iho  date  it, 
bore  showed  that  it  was  out,  of  tune  for  the  purpose 
of  evidencing  any  compromise  or  payment  of  tlift 
decree,  and  returned  the  document  to  the  judgment- 
debtor  The  judgment-debtor  was  subsequently  pro- 
secuted for  an  offence  under  s.  467  of  the  Penal  Code 
in  reapect  of  the  document  • 

Held,  that  the  document  had  been  "produced"  in 
Court  within  the  meaning  of  s  105  (c)  of  the  Or  P.  O. 
and  that  a  complaint  by  the  Judge  was,  therefore, 
necessary  in  order  to  give  jurisdiction  to  the  Court 
to  try  the  accused  foj  an  offence  under  a.  167  of  the 
Penal  Code.  [p.  428,  col.  1  ] 

Criminal  application  against  an  order 
of  the  Resident  Magistrate,  First  Class  at 
Nadiad. 

Mr.  R.  C.  Coyajee,  (with  him  Mr.  H.  M. 
Chokshi),  for  the  Applicant. 

Mr.  S.  S.  Patkar,  Government  Pleader, 
for  the  Crown. 

JUDGMENT* 

.  Mirza,  J. — This  is  an  application  in 
revision  on  behalf  of  the  accused  against 
an  order  of  the  Resident  First  Class  Magis- 
trate, Nadiad,  who  rejected  the  accused's 
application  to  quash  certain  criminal  pro- 
ceedings pending  in  his  Court  under  ss.  467 
and  109,  Indian  Penal  Code,  against  the 
accused. 

The  contention  of  the  accused  is  that  a 
document  in  respect  of  which  a  charge  of 
abetment  of  forgery  is  made  against  him  in 
those  proceedings  was  "produced"  before 
the  Extra  First  Class  Subordinate  Judge 
of  Surat  in  the  Civil  Suit  No.  529  of  1922, 
that  any  prosecution  against  him  in  respect 
of  such  a  document  can  be  instituted  only 
on  a  written  complaint  of  the  Subordinate 
Judge  and  admittedly  as  there  is  no  written 
complaint  the  present  proceedings  are 
irregular  and  should  be  quashed. 


It  appears  that  the  accused  was  the  de- 
fendant in  Civil  Suit  No.  529  of  1922.  The 
plaintiff  in  that  suit  had  obtained  a  decree 
against  die  accused  and  had  filed  a  darkhast 
in  the  Extra  First  Class  Subordinate 
Judge's  Court  for  execution  of  that  decree. 
In  answer  to  that  darkhast  the  defendant 
had  produced  the  document  in  question 
and  had  handed  up  the  same  to  the  Sub- 
ordinate Judge.  That  document  purported 
to  show  that  the  decree  had  been  compro- 
mised for  a  payment  of  Rs.  1,500.  The 
Subordinate  Judge  did  not  take  the  docu- 
ment on  the  file  on  the  ground  that  the 
date  it  bore  showed  that  it  was  out  of  time 
for  the  purpose  of  evidencing  any  compro- 
mise of  the  decree.  In  doing  so  the  learned 
Subordinate  Judge  failed  to  observe  the 
provisions  of  O.  XIII,  r.  6,  (\  P.  0.,  which 
lays  down  • — 

u  Where  a  document  relied  on  as  evidence 
by  either  party  is  considered  by  the  Court 
to  be  inadmissible  in  evidence,  there  shall 
be  endorsed  there  on  the  particulars  men- 
tioned  " 

The  learned  Subordinate  Judge  returned 
the  document  to  the  Pleader  of  the  accused. 
It  is  now  alleged  that  that  document  is 
being  suppressed  by  the  accused  and  is, 
therefore,  not  forthcoming.  Under  these 
circumstances  the  question  before  us  to 
decide  is  whether  what  happened  before 
the  Subordinate  Judge  was  tantamount  to 
the  "production1'  of  the  document  in  ques- 
tion within  the  meaning  of  s,  195,  cl.  (r), 
of  the  Or.  P.  C.  That  section  provides  : —  ' 
"195  (1)  No  Court  shall  take  cognizance 
— (c)  of  any  offence  described  in  s.  463  or 
punishable  under  s.  471,  s.  475  or  s,  476  of 
the  same  Code,  (Indian  Penal  Code)  when 
such  offence  is  alleged  to  have  been  com- 
mitted by  a  pary  to  any  proceeding  in 
any  Court  in  respect  of  a  document  pro- 
duced or  given  in  evidence  in  such  pro- 
ceeding, except  on  the  complaint  in  writing 
of  such  Court,  or  of  some  other  Court  to 
which  such  Court  is  subordinate.'1 

Reliance  is  placed  by  the  learned  Counsel 
for  the  accused  upon  0,  VII,  r.  14,  as  show- 
ing that  production  of  a  document  is  differ- 
ent from  giving  the  document  in  evidence 
0.  VCI,  r.  14,  C.  P.  C.,  provides  :  — 

"Where  a  plaintiff  sues  upon  a  document 
in  his  possession  or  power,  he  shall  produce 
it  in  Court  when  the  plaint  is  presented, 
and  shall  at  the  same  time  deliver  the  docu- 
ment or  a  copy  thereof  to  be  filed  with  the 
plaint/1 


428 


KALLU  v.  BMPBKOR. 


0.  VII,  r.  18,  0,  VII,  r.  14,  contem- 
plates that  a/,  record  of  the  document  or  its 
copy  should  be  kept  in  the  Court  when  it  is 
said  "to  be  produced11  although  it  may  not 
be  given  in  evidence. 

Our  attention  has  been  further  called  to 
Queen-Empress  v.  Nagindas  (1)  where  a 
Division  Bench  of  this  Court  consisting 
ofBirdwood  and  Jardine,  JJ.,  held  that 
a  document  is  given  in  evidence  with- 
in the  meaning  of  s.  195,  Or.  P.  C  ,  when 
it  is  handed  over  by  the  person  tender- 
ing it  to  the  Court  though  the  Court  on 
inspection  may  reject  it  as  evidence,  for 
insufficiency  of  stamp  or  want  of  registra- 
tion. This  decision  was  prior  to  the  date 
of  the  amendment  of  the  Cr.  P.  C.,  whereby 
the  words  "produced  or11  have  been  added. 

Our  attention  has  been  further  called  to 
a  decision  of  the  Calcutta  High  Court  in 
Nalini  Kanta  Laha  v.  Anuhul  Chandra 
Laha  (2),  That  case  decided  that  where  a 
document  was  called  for  by  a  party  to  a 
proceeding  under  s.  145  of  the  Cr.  P.  C., 
brought  into  Court  and  referred  to  by  his 
Pleader  in  argument  and  by  the  Magistrate 
in  his  judgment,  though  he  expressly  re- 
frained from  any  opinion,  as  to  its  authen- 
ticity, that  the  document  was  "produced"  in 
the  proceeding  within  the  meaning  of  s.  195 
(i)  (c)  of  the  Coda 

We  are  further  referred  to  a  more  recent 
case  of  our  own  Division  Bench  in  In  re 
Gopal  Sidheshvar  (3).  In  that  case  Chanda- 
varkar  and  Pratt,  JJ  ,  held  that  s.  195  (c) 
of  the  Cr.  P.  0.,  1898,  applied  to  a  docu- 
ment which  was  alleged  to  be  forged 
and  was  produced  in  a  Court  of  Justice. 
"Production"  of  a  document  in  Court, 
they  say,  is  not  the  same  as  "giving 
it  in  evidence."  A  document  produc- 
ed in  Court  according  to  this  decision 
means  "one  which  is  produced  for  the  pur- 
pose of  being  tendered  in  evidence  or  for 
some  other  purposes."  We  are  of  the 
opinion  that  this  interpretation  of  s.  195  (c) 
is  binding  upon  us.  The  circumstances  in 
that  case  were  very  similar  to  the  circum- 
stances in  the  present  case. 

In  a  still  more  recent  judgment  in  In  re 
Bhau  Vyankatesh  (4)  Macleod,  C.  J.,  and 
Coyajee,  J.,  have  given  the  same  wide  inter- 
pretation to  the  word  "produce." 

(1)  (1886)  Unrep.  Or.  0.  242 

fa)  39  Ind.  Gas  490;  44  0.  1002;  25  C.  L.  J,  255;  21 
OWN  640,  18  Cr.  L.  J.  522, 

'(3)  9  Bom.  L  R  735;  6  (Jr.  L.  J.  78. 

(4)  91  Ind.  Gas.  245;  27  Bom.  L.  R.  607;  49  B.  608; 
(1925)  A,  I,  K,  (B,)433j  27  Or.  L.  J.  69. 


[92  I.  C.  1S28] 

We,  therefore,  make  tKe  Rule  absolute 
and  quash  the  Magistrate's  proceedings  iu 
the  matter  of  the  complaint  against  the 
applicant.  This  order,  however,  will  not 
preclude  fresh  proceedings  being  instituted 
after  a  complaint  is  made  in  writing  by  the 
learned  Subordinate  Judge  whicji  iji  his 
discretion  he  is  competent  to  do. 

Perclval,  J.— I  agree  in  regard  to  the 
legal  aspect  of  the  case.  1  should  like  to 
add  that,  while  it  will  be  a  matter  of  dis- 
cretion for  the  learned  Subordinate  Judge 
whether  to  make  a  complaint  or  not,  in 
the  peculiar  circumstances  of  the  case  it 
appears  that  the  complaint  by  the  Subordi- 
nate Judge  is  rather  a  formality,  owing  to  the 
fact  that,  although  the  document]  was  techni- 
cally produced  in  his  Oourt,  it  was  not 
retained  there  ;  and,  therefore,  the  Sub- 
ordinat  Judge  will  probably  not  find  any- 
thing on  his  record  regarding  it.  It  is 
even  a  question  whether  the  document  is 
in  existence  now  or  not.  Thus,  while  on 
technical  grounds  the  complaint  by  the 
Sudordinate  Judge  is  necessary,  it  cannot 
be  expected  that  he  will  have  any  personal 
knowledge  of  the  subject  under  considera- 
tion. 

Rule  made  absolute. 


LAHORE  HIGH  COURT. 

CRIMINAL  RBVISION  CASE  No.  1619  OF  1924. 

January  23,  1925. 

Present: — Mr,  Justice  Broadway. 

KALLU— AcoasEB — PBTITIONEK 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  8.  1>80— 
Penal  Code  (Act  XLV  of  1860),  ss.  179,  193 -Witness, 
prosecution  of —False  answer  to  question  --Refusal  to 
answer  question. 

Where  a  witness  on  being  asked  the  name  of  his 
paternal  grandfather,  replies  that  he  does  not  remem- 
ber it,  it  is  not  a  refusal  to  answer  the  question,  and  the 
witness  cannot  "•  •  •  >:  ~  under  s  179,  Penal 
Code,  read  wi  -  >••,  •  •  i1  ij,  although  if  the 
answer  is  false,  the  witness  cuuld  be  prosecuted  under 
s.  193,  Penal  Code,  [p  429,  coL  l.J 

Case  reported  by  the  District  Magistrate, 
Karnal,  with  his  No.  2411-M  of  21st  Novem- 
ber 1924. 

FACTS.— The  accused  Kallu  was  a 
witness  in  a  criminal  case  before  tiardar 
Jai  Singh,  Magistrate  of  the  First  Class.  In 
cross-examination  he  was  asked  the  name 
of  his  paternal  grandfather.  His  reply  was 


CHAMPA  DEVI  *.  P1RBHTJ  LAL. 


[921.0.1926] 

that  ho  did  not  know.  On  this  the  Magis- 
trate taking  action  under  s.  480,  Cr.  P.  0., 
sentenced  him  to  a  fine  of  Ks,  50  under 
s.  179,  Indian  Penal  Code. 

GROUNDS.— Section  179,  Indian  Penal 
Code,  only  applies  in  cases  where  the  accus- 
ed person  refuses  to  answer  any  question. 
Here  the  accused  did  not  refuse  to  answer, 
but  gave  an  answer  which  the  Magistrate 
considered  to  be  wrong.  This  might  have 
come  under  s.  193,  Indian  Penal  Code, 

The  application  of  s.  179  appears  to  be 
wrong  and  the  case  is  reported  for  the 
orders  of  the  High  Court  with  the  recom- 
mendation that  the  sentence  be  reversed. 

The  fine  has  already  been  paid. 

ORDER.— Kallu  son  of  Data  Ram  has 
been  convicted  of  an  offence  under  s,  179, 
Indian  Penal  Code,  read  with  s.  480,  Cr.  P. 
C.,  and  has  been  sentenced  to  a  fine  of 
Rs.  50,  or  in  default  to  undergo  one  week's 
simple  imprisonment.  The  learned  District 
Magistrate  has  reported  the  case  to  this 
Court  recommending  that  the  conviction  be 
set  aside  and  the  fine  refunded. 

This  recommendation  is  based  on  the  fact 
that  the  said  Kallu  had  not  committed  the 
offence  of  which  he  has  been  convicted.  It 
appears  that  Kallu  was  being  examined  as 
a  witness  and  was  asked  the  name  of  his 
paternal  grandfather.  To  this  question  he 
applied  that  he  did  not  remember  the  name 
of  that  gentleman.  The  learned  Magistrate 
treated  that  as  a  contempt  of  Court  hold- 
ing that  the  reply  given  was  "not  consistent 
with  reason,"  and  that,  therefore,  Kallu  had 
refused  to  answer  the  question  put  to 
him.  The  learned  District  Magistrate  is 
right  in  his  view  that  Kallu  did  not  refuse 
to  answer  the  question.  As  a  matter  of  fact 
he  did  give  an  answer  to  the  question  put. 
If  the  answer  was  a  false  one  Kallu  com- 
mitted an  offence  under  s.  193,  Indian  Penal 
Code.  He  certainly  did  not  render  himself 
liable  to  being  dealt  with  under  s.  480, 
Cr.  P.  C.  I,  therefore,  accept  the  recommen- 
dation of  the  learned  District  Magistrate  and 
set  aside  the  conviction.  The  fine  must  be 
refunded. 

N,  &.  Conviction  set  aside. 


429 


ALLAHABAD  HIGH  COURT, 

CRIMINAL  REVISION  No.  648  OF  1925. 

December  14,  1925. 
Present : — Mr.  Justice  Daniels. 
Musammat  CHAMPA  DEVI  AND  ANOTHER— 
APPLICANTS 

versus 

PIRBHU  LAL  AND  OTHBRS— OPFOSITE 
PARTIES 

Penal  Code  (Act  XLV  of  JStiO),  s.  ^—Defamation 
— Good  faith— Principles  applicable—Criminal  Pro- 
cedure. Code  (Act  V  of  1898),  s  81+2  (2)— Written  state- 
ment by  accused — Privilege. 

There  is  a  distinction  between  criminal  and  civil 
liability  for  defamation.  Civil  liability  is  to  be  deter- 
mined by  the  principles  of  English  Law,  but  criminal 
liability  is  governed  by  the  provisions  of  the  Penal 
Code  and  those  provisions  alone,  [p.  430,  col  L] 

I  sun  Prasad  Singh  v  Umrao  Singh,  22  A  234;  A. 
W.  N.  (1900)  46,  9  Ind  Dec.  (N,  s )  1187,  Emperor  v. 
Ganga  Prasad,  29  A  685;  4  A.  L  J  605,  6  Cr.  L.  J. 
197,  A  W.  N.  (1907)  235  and  Sat™  Chandra  Chakra- 
barti  v  Ram  Dayal  De,  59  Ind  Cas  143,  48  C.  388; 
32  C  L.  J.  94,  24  C  W.  N.  982,  22  Cr.  L.  J.  31, 
relied  on. 

A  finding  that  a  defamatory  statement  was  made  in 
good  faith  within  s  499,  Penal  Code,  cannot  be  read 
into  a  general  statement  by  the  Sessions  Judge,  that 
the  statement  was  covered  by  privilege,  and  that  it 
was  made  not  with  the  intention  of  doing  harm  to  the 
person  defamed  but  with  the  object  of  saving  the 
p.  •  •  "i  V:',_  't  [p  430,  col  2] 

'i  !  -,.-•;  conferred  by  s  342  (2),  Cr  P.  C  ,  does 
not  extend  to  a  written  statement  by  the  accused  [p. 
430,  cols  1  &  2  ] 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Bulandshahr,  dated  the 
8th  July  1925. 

Mr.  Nehal  Chand,  for  the  Applicants. 

Messrs.  Saila  Nath  Mukerji  and  Jai 
Kishen  Lai,  for  the  Opposite  Parties. 

JUDGMENT.— This  is  an  application 
in  revision  asking  for  further  inquiry  into 
a  complaint  of  defamation  under  s  500  of 
the  Indian  Penal  Code  which  has  been  dis- 
missed under  s.  203  of  the  Cr.  P.  C.  An 
application  was  made  to  the  Sessions  Judge 
who  has  rejected  it.  One  Musammat 
Champa  Devi  filed  a  complaint  charging 
Pirbhu  Lai,  Basdeo  and  Banarsi  Da*  with 
offences  under  ss.  451  and  506  of  the  Indian 
Penal  Code.  When  asked  for  their  answer 
to  the  charge  they  said  that  they  would  file 
a  written  statement.  In  the  course  of  that 
written  statement  they  made  an  imputation 
of  unchastity  againgt  the  complainant 
alleging  that  she  had  an  illegal  connection 
with  one  Piare  Lai  and  that  the  case  had 
been  instituted  at  the  insiigafion  of  Piare 
Lai  in  consequence.  That  complaint  was 
dismissed,  and  Musammat  Champa  Devi 
and  Piare  Lai  then  filed  this  complaint  of 


430 


NGA  WA  OYI  tt  BMFBROR, 


defamation  against  Pirbhu  Lai,  Basdeo  and 
Banarsi  Das. 

The  Deputy  M.iLri-'iat-»  made  an  inquiry 
under  s.  202  of  tne  Or.  P.  0.  He  then  dis- 
missed the  complaint  partly  on  the  techni- 
cal ground  that  the  written  statement  had 
not  been  formally  proved  and  partly  on  the 
ground  that  the  defamatory  imputation  was 
not  a  "serious,  direct,  clear  and  complete 
imputation11  and  was  not  made  with  the 
intention  of  harming,  or  knowledge  that  it 
was  likely  to  harm,  the  reputation  of  the 
complainants.  The  learned  Sessions  Judge 
has  rightly  brushed  aside  the  reasons  given 
by  the  learned  Deputy  Magistrate.  He 
decided  the  case  on  the  broad  ground  that  a 
statement  made  by  an  accused  person  in  a 
written  statement  filed  by  him  in  answer  to 
a  criminal  prosecution  is  privileged,  and 
that  even  if  the  privilege  is  not  absolute  it 
covers  the  present  case  because  the  imputa- 
tion was  made  for  the  protection  of  the 
persons  making  it  and  not  with  the  inten- 
tion of  doing  harm  to  the  complainants. 

The  learned  Judge  refers  to  the  decision 
of  the  Madras  High  Court  in  Potaraju 
Venkata  Reddy  v.  Emperor  (1),  in  which 
they  held  that  an  oral  statement  made  by 
an  accused  person  was  absolutely  privileg- 
ed, but  I  am  not  sure  that  he  intends  to 
adopt  the  view  taken  in  this  case,  otherwise 
he  would  have  hardly  remarked  below  that 
the  privilege  may  riot  be  absolute.  The 
view  consistently  taken  by  this  Court  has 
been  that  there  is  a  distinction  between 
criminal  and  civil  liability  for  defamation. 
Civil  liability  is  to  be  determined  by  the 
v:!..  \\i\t1-  of  English  Law,  but  criminal 
:i'L  •'  ij  i-  governed  by  the  provisions  of 
the  Indian  Penal  Code  and  by  those  pro- 
visions alone.  This  view  was  taken  by  Mr. 
Justice  Aikman  in  Isuri  Prasad  Singh  v. 
Umrao  Singh  (2),  and  was  re-affirmed  by  a 
Full  Bench  in  Emperor  v.  Ganga  Pramd  (3). 
The  view  taken  by  this  Court  has  quite 
recently  been  unanimously  approved  by  a 
Full  Bench  of  five  Judges  of  the  Calcutta 
High  Court  in  Satis  Chandra  Chakrabarti 
v.  Ham  Dayal  De  (4).  The  immunity  con- 


(1)  14  Ind  Cas  659;  36  ML  216,  (1912)  M  W.  N. 
476,  13  Or.  L  J.  275;  11  M.  L.  T.  416;  23  M.  L.  J. 
39 

(2)  22  A.  234;  A.  W.  N.  (1900)  46;  9  Ind.  Dec,  (N.  s.) 
11B7. 

(3)  29  A.  685;  4  A.  L.  J.  605;  6  Cr.  L  J.  197;  A.  W. 
N.  (1907)  235. 

(4)  59  Ind.  Gas.  143;  48  C.  388;  32  C.  L.  J,  94;  24  0. 
W.  N,  982,  22  Or.  L.  J.  31. 


[92  I.  0.  1926] 
does  not  extend  to 


f  erred  by  s.  [342  (2) 
written  statement. 

I  entirely  concur  with  the  Sessions  Judge 
in  finding  that  in  the  cirumstances  of  this 
case  the  statement  was  made  for  the  pro- 
tection of  the  interests  of  the  persons 
making  it.  The  statement  was  undoubtedly 
a  defamatory  statement  which  the  parties 
making  it  must  have  known  to  be  likely  to 
harm  the  reputation  of  the  complainants. 
The  only  further  question  is  whether  the 
imputation  was  made  in  good  faith  within 
the  meaning  of  ninth  Exception  to  s.  499. 
If  there  had  been  a  definite-  finding  of  the 
Court  below  that  the  imputation  was  made 
in  good  faith  I  would  have  unhesitatingly 
refused  to  interfere,  but  I  cannot  read  any 
such  finding  into  the  general  statement  of 
the  learned  Sessions  Judge  that  the  case  is 
covered  by  privilege  and  that  the  statement 
was  not  made  with  the  intention  of  doing 
harm  to  the  applicants  but  with  the  object 
of  saving  the  persons  making  it.  Indeed 
on  the  materials  on  the  record  I  do  not  see 
how  it  would  have  been  possible  for  the 
Courts  to  arrive  at  any  such  finding.  No 
notice  had  been  issued  to  the  accused  and 
all  that  the  Deputy  Magistrate  had  before 
him  was  the  statements  of  the  complainants 
and  the  statements  of  their  witnesses  called 
under  s.  202.  I,  therefore,  accept  this 
revision  and  direct  further  inquiry  to  be 
made  into  the  complaint, 

N.  H.  Revision  accepted. 


RANGOON  HIGH  COURT. 

CftiMiNAT,  APPEAL  No.  1243  OF  11)24. 

January  5,  1925. 

Present ;— Sir  Sydney  Robinson,,  KT., 

Chief  Justice,  and  Mr.  Mr.  Justice   Cunliffe. 

NGA  WA  GYlAND  OTHERS— APPELLANTS 

versus 
EMPEROR— OPPOSITE  PARTV. 

Criminal  Procedure  Code  (Act  V  of  18(W,  ss.  193t 
330,  5>12  -Approver,  prosecution  of— Commitment  to 
Sessions— Certificate  of  Public  Prosecutor,  absence  of 
— Certificate  supplied  at  trial— Irregularity— Ap- 
prover failing  to  adhere  to  confession,  whether  proof 
of  guilt. 

Accused  and  two  others  were  arrested  on  charges  of 
kidnapping  and  murder.  Accused  was  tendered  a 
pardon  which  lie  accepted  and  he  was  examined  as  a 
witness  at  the  trial  of  the  other  two  accused.  On 
the  conclusion  of  that  trial  the  Magistrate  ordered 
the  Police  to  prosecute  the  accused  of  the  original 
offence  and  the  accused  was  sent  before  a  Magistrate 
who  committed  him  to  the  Sessions  Court  on  charges 


[92 1.  0. 1926] 


NGA  VVA  Oil  V.  BMPBROH. 


431 


'i'Ii'.t:  Jiis'l  -iiurder.  On  the  case  coming  up 
for  J:Y  i,  ii  *••.•--  i  -  J  ••Ijri.'  .'•  r.1.",  i  I!'.-,1  absence  of  the 
certificate  from  the  P, ..':,.•  I'i  -  ••  .'  required  by 
s.  3.J!)  of  the  Or.  P.  C.  The  trial  was  adjourned  and 
on  the  adjourned  date  a  certificate  was  filed  by  the 
Public  Prosecutor  and  was  accepted  by  the  Sessions 
Judge  and  the  trial  proceeded  and  the  accused  was 
eventually  convicted. 

Held,  that  the  proceedings  before  the  Magistrate 
who  made  the  commitment  were  merely  an  enquiiy 
and  were  not  a  trial  within  the  meaning  of  s  339  of 
the  Or.  I1.  G.,  and  that  it  was  open  to  the  vSessions 
Judge  to  accept  the  commitment  made  by  the  Magis- 
trate even  if  it  was  irregular  and  that  the  provisions 
of  s.  339  having  been  complied  with  before  the  trial 
commenced  the  trial  was  in  order,  [p.  431,  col.  2, 
p.  432,  coLl.] 

In  re  Sessions  Judge  of  Tanjore,  51  Ind.  Gas  G74; 
35  M.  L  J.  251),  20  Or.  L.  J  511,  <) wen-Empress  v. 
Mortem,  9  B.  288,  5  Ind.  Dec  (N.  s  )  192,  Queen- Empress 
v.  Bal  Gamjadhar,  22  B.  112;  11  Ind.  Dec.  (N.  s)  656, 
Dilan  Singk  v.  Emperor,  17  Ind  Cas.  570,  40  G  300, 
13  Gr.  L.  J.  826,  ttarindra  Kumar  (those  v  Emperor, 
7  Ind.  Gas  359,  37  G  467;  14  OWN  1114,  11  Gr. 
L.  J.  453,  Emperor  v,  Bhutiaji  Venkaji  Nadgir,  14 
Ind.  Gas  454;  42  B.  172,20  Bom  L  R.  89;  19  Gr.  L. 
J.  342  and  Queen-Kmprt'ss  v.  Abbi  Reddi,  17  M  402,  4 
M.  L  J  190;  2  Weir  704,  6  Ind,  Dec  (x  s)  279,  re- 
ferred to. 

Where  an  approver  is  put  on  trial  for  the  original 
offence,  the  mere  fact  that  he  lias  not  adhered  to  his 
confession  should  not  lead  to  the  conclusion  that  ho 
has  failed  to  comply  with  the  condition  on  which  the 
pardon  was  granted  to  him.  False  confessions,  wrong- 
fully extorted  or  induced  are  not  unknown  and  no 
man  must  tie  led  to  adhere  to  a  false  confession  for 
fear  of  his  pardon  being  forfeited,  [p  432,  eul  2.  j 

Criminal  appeal  from  an  order  of  the 
Sessions  Judge,  Tharrawaddy,  in  Sessions 
Trial  No.  26  of  1924. 

JUDGMENT. 

Robinson,  C.  J.— The  appellant,  Nga 
Wa  Gyi,  and  two  others  were  arrested  on 
charges  of  kidnapping  and  murder.  Nga 
Wa  Gyi  was  tendered  a  pardon,  which  he 
accepted,  and  he  was  examined  as  a  witness 
at  the  trial  of  the  other  two  accused.  On 
the  conclusion  of  that  trial  the  District 
Magistrate  ordered  the  Police  to  prosecute 
him  of  the  original  offence.  He  overlooked 
the  provisions  of  s.  339  of  the  Or.  P.  C.  The 
accused  went  before  a  Magistrate,  who 
also  overlooked  those  provisions.  The 
Magistrate  committed  Nga  Wa  Gyi  to  the 
Court  of  Session  on  charges  of  murder,  etc. 
On  the  case  coming  up  for  trial,  the  learned 
Sessions  Judge  noticed  the  absence  of  the 
certificate  from  the  Public  Prosecutor.  The 
Public  Prosecutor  desired  time  to  see  if  he 
could  make  the  necessary  certification,  and 
the  trial  was  accordingly  adjourned.  On 
the  adjourned  date,  a  certificate  was  filed 
and  accepted  by  the  learned  Sessions  Judge, 
and  the  trial  proceeded  ;  in  other  words, 
the  learned  Seesions  Judge  accepted  the 


commitment  as  an  irregular  commitment 
in  exercise  of  the  powers  conferred  by 
s.  532  of  the  Code.  He  convicted  Nga  Wa 
Gyi  under  s.  365,  and  sentenced  him  to 
seven  years1  rigorous  imprisonment.  Nga 
Wa  Gyi  has  appealed,  and  the  question, 
whether  the  commitment  is  illegal,  having 
been  made  without  a  certificate,  has  been 
referred  to  a  Bench. 

The  authorities  naturally  refer  to  cases 
concerned  with  the  absence  of  sanctions 
that  were  required  by  the  old  Code,  but 
the  principles  governing  the  matter  are 
much  the  same  although  it  would  not 
necessarily  follow  that  the  absence  of  a 
Public  Prosecutor's  certificate,  under  s.  339, 
is  as  fatal  a  defect  as  the  absence  of  a 
sanction. 

In  the  first  place,  it  must  be  pointed 
out  that,  what  s.  339  lays  down  is  that 
where  a  person  who  has  been  tendered  a 
par  don  and  the  Public  Prosecutor  certifies 
that  he  has,  either  by  wilfully  concealing 
something  essential  or  by  giving  false 
evidence  not  complied  with  the  condition 
on  which  the  pardon  was  given,  such  person 
may  be  tried  for  the  offence,  in  respect  of 
which  the  pardon  was  so  tendered.  In  the 
case  of  sanctions  under  the  old  Code,  the 
provision  was  that  no  Court  should*  take 
cognisance,  and,  incases  under  the  Arms 
Act,  it  was  laid  down  that  no  proceedings 
may  be  instituted  without  certain  sanction. 
In  the  next  place,  it  is  to  be  noted  that 
proceedings  before  a  Committing  Magistrate 
fall  under  Oh.  XVII  of  the  Code  which 
deals  with  the  enquiry  into  cases  triable 
by  a  Court  of  Session.  The  charge  in  the 
present  case  was  one  which  was  exclusively 
triable  by  a  Court  of  Session,  and  the 
Magistrate,  making  the  enquiry,  was  doing 
so  only  with  a  view  to  committal,  and  not 
with  a  view  to  trial  by  himself,  though  he 
could,  no  doubt,  have  found  the  accused 
guilty  only  of  an  offence  triable  by  himself, 
or  have  discharged  him. 

In  a  case  referred  to  the  High  Court  at 
Madras  hi  re  Sessions  Judge  o/ Tar?; ore  (1), 
it  was  pointed  out  that  an  Lenquiry  before 
a  Magistrate  is  not  a  trial,  the  trial  itself 
taking  place  before  the  Sessions  Judge  at 
a  later  stage.  This  is  important,  for  the 
certificate  of  the  Public  Prosecutor  is  only 
required  for  the  trial  of  a  person  who  has 
accepted  the  tender  of  the  pardon. 
Coming  now  to  the  authorities  in  reference 
(1)  51  Ind.  Cas.  674;  35  M.  L.  J.  259;  20  Cr.  L.  J, 

514.. 


432 


NGA  WA  Gtl  0,  BMPBfiOB. 


[92  I.  0. 1926] 


to  cases  of  sanction,  the  first  case  that  I 
will  refer  to  is  of  Queen-Empress  v.  Morton 
(2).  There  a  magisterial  enquiry  was  held 
without  the  previous  sanction  required  by 
s.  197  of  the  Code  of  1882,  and  it  was  held 
that  proceedings  were  irregular  and  without 
jurisdiction  and  that  the  sanction  subse- 
quently obtained  was  of  no  effect;  but  it  was 
further  held  that  the  Judge  presiding  at 
the  Sessions  had  nevertheless  power  in  his 
discretion  to  accept  the  commitment  and  to 
proceed  with  the  trial  of  the  prisoner  under 
the  provisions  of  s.  532.  That  case  was 
followed  in  the  case  of  Queen-Empress  v, 
Bal  Gangadhar  Tilak  (3). 

Again  in  Dilan  Singh  v.  Emperor  (4),  it 
was  held  that  a  conviction  by  a  Court  of 
Session  cannot  be  set  aside  simply  on  the 
ground  of  defect  in  the  initiation  of  pro- 
ceedings in  the  commitment  Court,  or  on 
the  giound  of  some  irregularity  in  the 
commitment  proceedings,  more  especially 
when  that  point  was  not  raised  in  the  lower 
Court,  and  it  was  held  that  s.  632  would  cure 
such  a  defect.  Mortons  case  (2)  was  again 
followed.  No  reference,  however,  was  made 
to  an  earlier  decision  of  the  same  Court  in 
Barindra  Kumar  Ghose  v.  Emperor  (5),  in 
which  it  was  held  that  there  being  no 
complaint  under  s.  12  L  of  the  Penal  Code; 
authorised  by  the  Local  Government,  or  m 
fact  preferred,  the  Magistrate  had  no  power 
to  commit  thereunder,  and  that  the  defect 
was  not  cured  by  a  subsequent  order 
obtained  while  the  case  was  before  the 
Sessions  Court.  It  was  further  held  that 
s.  532  did  not  cure  the  defect.  That, 
however,  was  a  case  of  an  order  under  s.  196 
of  the  Code,  and,  in  the  complaint  that  was 
filed  a  number  of  sections  were  actually 
specified,  but  s.  121  was  not  amongst  them. 
The  case  can,  therefore,  I  think,  be  dis- 
tinguished. . 

There  is  one  other  case,  viz.,  Emperor  v. 
BhimaiiVenkaji  Nadgir(&).  The  enquiry 
into  the  case  was  instituted  and  the  whole 
of  the  evidence  was  taken  in  the  absence 
of  sanction  to  prosecute.  The  Magistrate 
committed  the  case  to  the  Sessions  Court 
and  the  Sessions  Judge  referred  the  case 
to  the  High  Court,  as  he  was  of  opinion 
that  the  commitment  was  illegal.  It  was 

(2}  9  B.  288;  5  Ind.  Dec.  (N  s  1  192. 
rt  i  22  B  112;  11  Ind.  Dec  (N  s.)  656. 
4    17  Ind   Cas.  570;  40  O.  360;  13  Or.  L.  J.  826. 
(51  7  Ind  Cas.  359;  37  C.  467;   14  C.  W.  N.  1114;   11 

%M4  iS'Cas,  454,  42  B,  172;  20  Bom,  L.  R.  89;  19 
Or,  L.  J.  342, 


held  that,  owing  to  the  absence  of  sanction 
the  whole  of  the  proceedings  before  the 
Magistrate  were  without  jurisdiction  and 
totally  invalid.  The  Sessions  Judge  did 
not  accept  the  commitment. 

By  s,  193  of  the  Code  it  is  laid  down  that 
no  Court  of  Session  shall  take  cognisance 
of  any  offence  as  a  Court  of  original  juris- 
diction unless  the  case  has  been  committed 
to  it  by  a  Magistrate  duly  empowered  in 
that  behalf.  In  this  case,  the  Magistrate 
was,  in  my  opinion,  duly  empowered  to 
commit  it.  The  proceedings  before  him 
were  merely  an  enquiry  and  what  is  for- 
bidden by  the  provisions  of  s.  ,339  is  the 
trial  of  the  accused  which,  in  this  particular 
case,  had  to  be  a  trial  by  a  Court  of  Session 
as  a  Court  of  original  jurisdiction.  Even 
in  the  case  of  a  Magistrate,  who  commits 
for  trial  by  a  Sessions  Court,  the  fact  that 
he  had  no  territorial  jurisdiction  over  the 
place  where  the  alleged  offence  was  com- 
mitted has  been  held  to  be  no  ground  for 
the  Court,  to  which  the  commitment  was 
made,  quashing  the  commitment  under 
s.  532,  the  accused  not  having  been  injured 
thereby.  And  in  that  case,  objection  was 
taken  before  commitment.  See  Queen- 
Empress  v.  Abbi  Reddi  (7).  Having  regard 
to  the  weight  of  authority  and  to  the  word- 
ing of  s.  339,  I  am  of  opinion,  that  it  was 
open  to  the  Sessions  Judge,  in  this  case, 
to  accept  the  commitment  even  if  it  was 
irregular.  Before  the  trial  began,  the 
provisions  of  s.  339  had  been  complied 
with,  and  the  trial  was  in  order.  The 
proceedings  before  the  Magistrate  were 
not,  therefore,  in  my  opinion,  totally  invalid 
and  there  is  no  ground  for  setting  aside 
the  proceedings  on  this  ground,  more 
particularly,  as  no  objection  had  been 
taken  either  before  the  Magistrate  or  before 
the  Sessions  Court  even  after  the  point 
was  brought  prominently  to  notice. 

It  is  not  right  that  the  mere  fact  that  a 
confession  has  been  mads  should  lead  to 
the  conclusion  that  if  withdrawn  the  man 
must  be  held  to  have  failed  to  comply 
with  the  condition  on  which  it  was  granted. 
False  confessions  wrongfully  extorted  or 
induced  are  not  unknown  and  no  man 
should  be  led  to  adhere  to  a  false  confes- 
sion for  fear  of  having  his  pardon  forfeited. 
*  *  °  *  * 

Cunliffe,  J.— I  concur. 

z.  K.  Order  accordingly. 

(7)  17  M.s  402;  4  M.  L  J,  196j    2  Weir   704;  6  lad, 
1/3C.  (N.  B.}  *79i 


f»2  I.  0.  19&6J 


WOODWARD  V,  BMPEfeOfc. 


433 


SIND  JUDICIAL   COMMIS- 
SIONER'S COURT. 

CRIMINAL  APPEAL  No.  105  OP  1924. 

November  27,   1924. 
Present: — Mr.  Kennedy,  J.  0.,  and 
Mr.  Rupchand  Bilaram,  A.  J.  C. 
F.  C.  WOODWARD— -ACCUSED— APPELLANT 

versus 
EMPEUOR— OPPONENT. 

Penal  Code  (Act  XLV  of  I860),  ss  30^A,S37t  838,  tf5t 
tf  I—Criminal  Procedure,  Code  (Act  V  of  1898),  s.  235 
—Accident  causing  loss  of  lije  and  -injury  to  person  — 
Neglect  of  duty — Forgery  committed  by  accused  to 
screen  himself  from  criminal  liability  and  to  continue 
\n  employment — Joinder  of  charges — "Same  transaction, 
meaning  of — Contributory  negligence,  plea  of,  whether 
relevant. 

In  a  prosecution  under  ss.  304-A,  337  and  338  of  the 
Penal  Code  the  accused  cannot  claim  the  benefit  of  an 
error  of  judgment  when  he  has  exercised  no  judgment 
at  all.  [p.  437,  col.  1] 

Ths  expression  "gross  neglect"  finds  no  place  m  the 
Criminal  Law  of  India.  That  law  does  not  render 
a  mare  casual  inadvertance  of  duty  criminal,  but  such 
neglect  of  duty  as  either  directly  results  in  loss  of 
life  or  injury  to  person  or  such  neglect  as  endangers 
life  or  property,  [p.  437,  col  2,] 

Where  a  person  is  charged  with  the  offence  of  caus- 
ing loss  of  life  by  a  negligent  omission  it  is  not  open 
to  him  to  rely  on  the  plea  of  contributory 
which  is  distinctly  recognized  m  the  Law  of  Torts  nui 
finds  no  place  in  an  indictment  for  criminal  negli- 
gence. In  such  a  case  the  question  is  what  was  the 
proximate  cause  of  the  accident  [p  438,  col  1.] 

The  arena  of  facts  covered  by  the  expression  "same 
transaction"  used  in  s.  235  of  the  Cr  P  C  varies 
with  the  circumstances  of  each  case.  The  real  and 
substantial  test  for  determining  whether  several 
offences  are  so  connected  together  as  to  form  one  traus- 
actioti  depends  upon  whether  they  are  so  related  toge- 
ther in  point  of  purpose  or  as  cause  and  effect  or  as 
principal  or  subsidiary  acts  as  to  constitute  one  con- 
tinuous action,  [ibid "] 

It  was  the  duty  of  the  accused  to  make  a  periodical 
inspection  of  certain  boilers  in  order  to  see  that  the 
boilers  were  in  a  lit  condition  to  be  worked.  One  of 
the  boilers  exploded  and  caused  loss  of  life  and  injury 
to  pjrson,  ths  aooidont  being  due  to  the  fact  that 
the  crown  stays  of  the  boiler  were  badly  corroded, 
Borne  of  th«m  haying  disappeared  altogether  If  the 
accused  had  carried  out  his  duty  of  inspecting  the 
boiler  from  time  to  time  all  possibility  of  the  accident 
would  have  been  avoided.  During  a  departmental 
enquiry  into  the  cause  of  the  accident  the  accused 
produced  a  Dak  Despatch  Book  in  order  to  prove  that 
he  had  submitted  periodical  reports  of  his  inspection 
of  the  boiler  to  his  superior  officer.  He  also  relied  on 
certain  entries  made  by  him  in  a  private  book  to  show 
that  he  had  reported  on  the  condition  of  the  crown 
stays.  The  entries  in  the  Dak  Despatch  Book  and  the 
Private  book  produced  by  the  accused  were  suspected 
to  be  forged  and  the  accused  was  put  on  his  trial  on 
three  different  charges,  (1)  under  ss.  304-A,  337  and 
338  for  neglect  of  duty  resulting  in  the  bursting  of  the 
boiler  and  causing  loss  of  life  and  injury  to  person, 
(2)  under  ss.  465,  471  or  in  the  alternative  under 
a,  193  of  the  Penal  Code  for  having  forged  entries  in 
his  private  book  with  the  object  of  inducing  the  officer 
who  was  holding  an  enquiry  to  form  an  erroneous 


opinion  and  (3)  under  s.  4  77- A  of  the  Penal  Code  fcr 
falsifying  Dak  Despatch  Book.  He  was  convicted 
under  the  first  and  second  heads  but  was  acquitted  on 
the  third  , 

Held,  (1)  that  the  neglect  of  the  accused  resulting  in 
the  bursting  of  the  boiler  and  the  subsequent  forgeries 
with  the  object  of  screening  himself  from  criminal 
liability  and  in  order  that  he  might  be  retained  in  his 
employment  were  part  of  the  same  transaction  within 
the  meaning  of  s.  235  of  the  Cr  PC,  and  that  there 
was  consequently  no  misjoinder  of  charges  ;  [p.  438, 
col.  2.1 

(2)  that  the  bursting  of  the  boiler  being  due  to  the 
neglect  of  duty  of  the  accused  and  that  the  accused 
having  forged  the  entries  in  the  private  book  with  the 
object  of  being  retained  in  employment  his  conviction 
on  the  first  and  second  charges  was  justified,  [p.  438, 
col  1.] 

Criminal  appeal  against  a  decision  of  the 
Sessions  Judge,  Sukkur. 
Mr.   Fatehchand    Assudomal,  forlthe  Ap- 


pellant. 

Mr.  T.  G.  Elphinston, 
for  the  Crown. 


Public  Prosecutor, 


JUDGMENT.— On  23rd  February  1924 
at  about  4-40  P.  M.  a  serious  Railway  acci* 
dent  occurred  while  the  100  Down  Goods 
Train  was  passing  over  a  bridge  on  the 
down  line  between  Mahesar  and  Pano  Akil 
Stations  on  the  North-Western  Railway 
line.  The  boiler  of  the  locomotive  engine 
was  blown  off  the  frame  and  implanted  at 
the  14th  pier  of  the  bridge  damaging  the 
pier  and  the  embankment  close  by,  the 
frame  of  the  engine  was  lifted  off  the  rails 
and  thrown  down  in  the  nulla  between 
piers  Nos.  8  and  9,  the  spans  of  the  bridge 
between  piers  Nos.  7  and  9  were  smashed 
and  the  space  in  between  piled  with  a 
jumbled  mass  of  waggons.  The  engine 
driver  had  been  terribly  burnt  and  before 
he  died,  all  that  he  could  say  was  "I  know 
only  about  the  falling."  The  two  firemen 
who  were  on  the  engine  were  found  dead. 
Five  coolies  of  the  contractor,  who  were 
scrapping  the  paint  of  the  girders  of  the 
bridge,  were  found  dead  and  eight  other 
coolies  injured.  These  coolies  were  doing 
their  work  sitting  on  planks  swung  by  cords 
from  thfe  bridge,  and  were  overwhelmed  by 
the  falling  waggons. 

The  inquiry  held  immediately  thereafter 
bv  the  Senior  Inspector  of  the  Railway 
disclosed  that  the  accident  was  due  to  the 
unsafe  condition  of  the  boiler  of  this  engine. 
The  crown  stays  of  the  boiler  were  badly 
corroded  and  some  of  them  completely 
gone.  The  crown  plate  had  be6n  ripped 
open,  causing  an  explosion  in  the  fire-box, 
with  the  result  that  the  boiler  had  blown 
off.  The  engine  was  of  the  "  H,  B,"  clasa 


43* 


WOODWAfet) 


bearing  No.  1591,  the  number  of  its  boiler 
being  If  1.  It  was  one  of  the  eighty  engines 
housed  at  the  Rohri  Shed  and  had  been 
sent  out  for  work  on  the  previous  day  to 
Khanpur.  After  the  usual  rest  at  Khanpur 
for  about  six  hours  it  was  returning  to 
Rohri  with  another  load. 

The  appellant  was  then  employed  as  a 
European  boiler-maker  at  the  Rohri  Shed. 
It  was  his  duty  to  have  periodical  inspec- 
tion of  the  boilers  of  the  engines  housed  at 
Rohri.  At  the  inquiry  he  produced  a  Dak 
Despatch  Book  similar  to  an  ordinary  peon's 
delivery  book  to  prove  that  he  had  submit- 
ted the  periodical  reports  of  his  inspection 
through  the  Foreman  of  his  shed  to  the 
District  Loco  Superintendent,  and  further 
relied  on  certain  entries  made  by  him  in 
a  private  book  to  show  that  he  had  reported 
on  the  crown  stays  of  this  engine  not  being 
perfect.  The  entries  in  the  Dak  Despatch 
Book  were  believed  to  be  forged,  and  the 
appellant  was  put  on  his  trial  on  three 
different  charges: 

(1)  Under  SB.  304-A,  337  and  338,  Indian 
Penal  Code,  for  neglect  of  his  'duty  in  not 
complying  with  rr.   42  and  4y  of  the  Rules 
and  Regulations  of  the  Locomotive    Depart- 
ment made  under  Act  IX  of  1890,  resulting 
in  the  bursting  of  the  boiler  and  causing 
loss  of  five  lives  and  injury  to  eight  other 
persons. 

(2)  Under   ss.  465  and    471,    or  in   the 
alternative  under  s.  193,  Indian  Penal  Code, 
for  having  forged  entries  with  the  object 
of  inducing  the  Senior  Qoveinment  Ins- 
pector who  was  holding  an  inquiry  intend- 
ing that  such  forged  entries  might  cause 
him  to  form  an  erroneous  opinion. 

(3)  Under  8.477-A,  Indian  Penal  Code,  for 
falsifying  the  Dak  Despatch  Book. 

He  has  been  convicted  and  sentenced  to 
six  months'  simple  imprisonment  on  the 
first  count,  to  one  month's  simple  imprison- 
ment under  ss.  465  and  471,  Indian  Penal 
Code,  on  the  second  count,  and  acquitted 
on  the  third  count.  He  has  appealed 
against  his  conviction.  A  notice  has  also 
been  iesued  to  him  to  show  cause  why  the 
sentences  inflicted  on  him  should  not  be 
enhanced. 

We  have  no  hesitation  in  holding  that 
the  proximate  cause  of  this  terrible  accident 
was  the  bursting  of  the  boiler  on  account 
of  the  corroded  stays  giving  way  and  the 
crown  plate  being  ripped  open.  The 
evidence  of  the  experts  who  examined  the 
of  occurrence  immediatly  after  the 


[9'2  I.  6. 1926] 

accident  shows  that  the  boiler  was  blown 
off  the  chassis  of  the  engine  at  pier  No.  7 
when  the  engine  w,as  running  on  the 
rails.  There  were  marks  of  sludge  on 
the  top  of  pier  No.  7,  on  the  face  of 
that  pier  between  the  girders  on  the  ground, 
and  at  the  base  of  pier  No.  6  and  also  on 
some  sleepers  that  were  blown  down  through 
the  bridge.  The  marks  of  this  sludge 
were  inconsistent  with  the  sludge  which 
passes  from  the  blow  off  cock  which  was 
only  to  the  right  side  of  the  engine  and 
were  consistent  with  the  theory  that  the 
sludge  was  dropped  from  the  boiler  when  it 
was  bodily  lifted  by  the  explosion. 

The  sleepers  were  blown  forcibly  down- 
wards betweea  the  rails  leaving  their  ends 
undisturbed,  due  evidently  to  three  or  four 
tons  of  metal  and  live  coal  crushing  down 
through  the  sleepers.  A  number  of  bridge 
timbers  immediately  before  pier  No.  7  and 
on  the  side  of  it  facing  pier  No.  6  had  been 
completely  shattered  between  the  inner 
flangsof  the  top  girdeis. 

The  boiler  of  the  engine  had  received 
a  violent  dent  on  the  front  upper  portion 
which  was  originally  flat  which  showed 
that  it  had  turned  somersault  over  on  its 
head  and  had  again  come  down  the  right 
way  up  and  facing  in  the  same  direction 
as  before.  It  was  lying  almost  in  front  of 
the  train  about  eighty  yards  away  from 
the  place  where  it  first  left  the  chassis. 
The  rear  part  of  the  boiler  and  the  barrel 
are  less  strongly  fastened  down  than  the 
smoke-box  in  front,  and  the  rear  part  of 
the  boiler  naturally  blew  up  first.  If  the 
boiler  had  blown  off  after  the  chassis  had 
fallen  off  the  rails  or  into  the  nulla,  it  Is 
least  likely  that  the  boiler  would  be 
implanted  on  the  bridge  just  in  front  of  the 
train  on  the  down  line  or  would  receive  the 
dent  on  the  front  upper  portion  of  the 
boiler. 

.  The  place  where  the  chassis  was  found 
lying  in  the  nulla  showed  that  it  had  been 
thrown  off  the  rail  after  the  boiler  had 
burst  and  had  been  pushed  further  up  to 
pillar  No.  9  where  it  was  imbedded  in  the 
nulla.  There  are  also  other  indicia,  for 
instance  the  discovery  of  the  smoke-box 
door,  near  pier  No.  7,  which  seems  to  have 
dropped  out  when  the  rear  part  of  the 
boiler  had  been  lifted  up. 

Added  to  it  was  the  state  of  the  crown 
plate  and  the  crown  stays.  The  flat  top 
plate  on  the  firebox,  which  is  of  copper, 
is  Btayed  to  the  crown  .plate  of  the  "  " 


Wo6Dtf  ARfc  V. 

by  stays  192  in  number.  Each  of  these 
stays  has  a  nut  at  the  end.  These  stays 
are  liable  to  be  corroded  with  heat  and 
'water  and  galvanic  action  of  the  copper 
"and  iron.  The  place  of  corrosion  of  a  stay 
is  just  above  the  firebox  crown.  If  a 
sufficient  number  of  stays  are  corroded  the 
top  of  the  firebox  is  liable  to  collapse 
under  steam  pressure.  A  new  stay  is  about 
1$"  in  thickness.  The  inspection  of  the 
boiler  by  the  Railway  experts  disclosed 
'that  out  of  the  192  crown  stays  ten  were 
completely  gone  and  except  a  few  stays, 
towards  the  front  of  the  boiler,  the  rest 
Were  badly  corroded  and  the  average 
thickness  of  the  stays  reduced  to  about 
i^-th  of  an  inch,  and  the  crown  plate  had 
ripped  open  under  pressure  of  steam,  the 
corroded  stays  having  been  broken  by  the 
pressure. 

There  was  no  other  ostensible  cause  of 
the  accident.  The  line  between  the  two 
stations  is  a  main  line  subject  to  constant 
traffic  both  up  and  down.  The  coolies 
working  on  the  bridge  found  no  obstacle 
bsing  placed  on  the  line  to  cause  a  derail- 
ment, and  the  accident  occurred  in  Abroad 
day-light.  There  is  also  the  evidence 
of  fchrea  coolies  who  were  sheltered  under 
trolly  refuge  on  pier  No.  5  who  speak  to  the 
explosion  and  the  shooting  out  of  the  sludge 
as  the  first  thing  that  occurred,  and  have 
been  believed  as  true  witnesses  by  the  learn- 
ed Sessions  Judge. 

The  expert  evidence  further  shows  that 
the  minimum  average  thickness  of  the  stays 
for  purposes  of  safety  should  not  be  less 
than  T^th  of  an  inch,  and  according  to 
Welsh  Foreman,  Boiler-maker,  Karachi,  Ex. 
18,  it  was  very  dangerous  to  send  out  for  work 
the  engine  with  its  crown  stays  so  badly 
corroded,  and  according  to  Brooks  Fore- 
man, Boiler-maker,  Lahore,  Ex.  16  the 
boiler  in  that  state  was  unsafe  for  work. 

There  can  be  also  no  doubt  that  it  was  a 
parfc  of  the  duty  of  the  appellant  to  exa- 
mine the  crown  stays  periodically,  at  least 
once  every  three  months, 

The  crown  sta^s  require  watching  as  they 
are  liable  to  corrosion.  There  are  nine  plug 
holes  provided  for  inspection,  five  of  the 
plugs  being  in  the  top  plate  of  the  fire-box 
and  so  situated  as  to  render  the  examination 
of  the  outer  rows  easily  observable  from  the 
plugholes.  These  outer  rows  corrode  the 
quickest.  At  least  two  stays  can  be  exa- 
mined through  each  hole  and  those  so  exa- 
mined serve  ae  ao  index  to  the  condition  of 


435 

the  rows  to  which  they  belong.  Stays  com 
monly  become  encrusted  and  require  to  be 
cleaned  with  a  chisel  to  remove  the  encrus- 
tation and  corroded  portions  to  see  how 
deep  the  corrosion  has  progressed.  The 
thickness  of  the  stays  is  judged  by  the  use 
of  the  chisel  through  one  of  the  holes  and 
by  introducing  alight  through  another  hole 
to  observe  the  result  of  chiselling.  This  part 
of  the  work  is  the  duty  of  an  experienced 
European  boiler-maker  like  the  appellant 
and  not  of  any  of  the  subordinates  working 
under  him. 

Rule  49  of  the  rules  requires  the  European 
boiler  makers  to  carry  out  the  quarterly  exa- 
mination of  the  running  engines;  and  one 
of  the  chief  things  which  requires  examina- 
tion is  the  crown  and  side  water  stays  which 
are  liable  to  corrosion. 

The  appellant  was  aware  that  the  water 
at  Rohri  was  likely  to  cause  greater  corrosion 
than  ordinary  water.  His  special  attention 
had  been  drawn  to  the  effect  of  criminal 
neglect  of  examining  stays  by  Ex.  71,  dated 
iStla  December  - 1923,  which  was  issued  in 
consequence  of  another  boiler  having  been 
sent  to  a  workshop  with  a  majority  of  the 
crown  stays  badly  corroded,  and  showing 
that  the  European  boiler-makers  who  were 
supposed  to  have  examined  the  engines 
had  neglected  to  examine  the  stays  and  for 
which  they  were  punished.  This  circular 
is  signed  by  the  appellant  and  requireshim 
to  have  a  proper  examination  of  boilers. 

The  statement  of  the  appellant  before  the 
inquiry  officer  shows  that  the  appellant  was 
aware  of  the  importance  of  the  stays,  his 
duty  to  periodically  examine  them,  and  the 
serious  danger  resulting  from  the  stays 
giving  way.  He  admits  that  in  1906  a  boiler 
of  an  engine  on  the  Great  Eastern  Railway 
was  blown  off  the  chassis  while  the  engine 
was  running,  on  account  of  the  side  water 
stays  giving  way  and  causing  the  explosion, 
the  boiler  in  that  case  having  blown  off  on 
one  side  owing  to  the  greater  pressure  on 
that  side.  The  appellant  further  admits 
that  it  was  a  part  of  his  duty  to  immediate- 
ly report  to  the  District  Loco.  Superintend- 
ent, if  he  found  a  boiler  of  any  engine  to 
be  unsafe  for  work  and  to  stop  the  engine 
from  running,  pending  instructions  from 
the  District  Loco.  Superintendent.  The 
appellant  is  an  experienced  boiler-maker  of 
over  sixteen  years  standing  and  was  fully 
cognizant  of  the  serious  danger  to  life  and 
property  in  permitting  an  unsafe  boiler  tq 
work. 


436 

The  expert  evidence  further  proves  that 
the  crown  stays  of  this  boiler  were  so  badly 
encrusted  and  corroded  that  it  was  not 
likely  that  the  appellant  could  have  remov- 
ed the  encrustation  or  examined  the  stays 
for  a  period  of  nine  to  twelve  months. 

This  evidence  finds  ample  support  in  the 
conduct  of  the  appellant  in  attempting  to 
create  evidence  at  the  inquiry  to  show  that 
he  had  examined  the  boiler    every  three 
months  and  had  submitted   his  quarterly 
report    of     inspection.     He    produced    a 
Dak  Despatch  Book,   Ex.  87,  with  ceitain 
interpolations  to  prove  that  the  quarter- 
ly   reports    were    delivered  to  the    head 
clerk    of  the   Foreman    who  had  signed 
for  them  in  the  book.    He  further  relied 
on  certain  entries  made   by  him    in  his 
private  book,   Ex.   88,  whicli  recited  inter 
alia  that  he  had  examined  the  boiler  of 
this  engine    on    15th    January  1924  and 
found  "the   crown  bolts    badly    encrusted, 
patches  leaking  and  to  be  watched  and  the 
tubes  as  far  as  they  could  be  seen  in  a  good 
condition.11    The  object  of  producing  these 
books  was  evidently  to  lead  the  Inspector 
to    believe    in    the   first    place    that    the 
appellant  had  discharged  his    duties  pro- 
perly and  that  his  failure  to  stop  the  boiler 
from  working  at  most  amounted  to  an  error 
of  judgment  and  not  to  neglect  of  duty. 

The  story  of  his  having  submitted  quarter- 
ly reports  is  false.  None  of  the  Shed 
office  or  the  District  Loco.  Superintendent's 
office  remember  having  seen  the  reports  nor 
jdoes  Spiers,  the  Assistant  Loco.  Superintend- 
ent, or  Brock,  the  District  Loco.  Super- 
intendent, remember  having  received  them. 
The  life  history  of  the  boiler  in  the  life  re- 
gister kept  in  the  DistrictLoco.  Superintend- 
ent's office  has  not  been  written  up,  and 
no  office  copies  of  the  reports  have  been 
produced  by  the  appellant,  though  it  is 
usual  to  make  out  the  reports  in  duplicate 
and  to  retain  one  as  an  office  copy.  The 
Dak  Despatch  Book,  Ex.  87,  shows  distinct 
signs  of  interpolations  and  manipulations. 
It  would  be  sufficient  to  refer  to  the  last 
entry  of  the  despatch  of  the  last  quarterly 
report.  It  reads  as  follows: — 

C     S.  Report  137  T.     \ 
Head  «8  1-24  returned  on  I  Signature  of 
Clerk  }      date  30-1-24  and     J  Head  Clerk. 

t     quarterly  Boiler     ) 
report. 

The  words  "and  quarterly  Boiler  reports11 
H,re  a  clear  interpolation,  We  think  that 


t>.  «MPBROR.  [92  I.  C.  1926J 

the  learned  Judge  was  right  in  holding 
that  the  different  entries  in  this  book,  show; 
ing  that  the  appellant  had  despatched  re- 
ports for  the[different  quarters  from  Novem- 
ber 1922,  were  manipulated.  The  private 
book,  Ex.  88,  could  not  possibly  have  form.- 
ed  the  basis  for  the  appellant  to  make  .out 
his  quarterly  report.  It  does  not  contain 
notes  of  inspection  of  several  engines  which 
were  housed  in  the  same  Shed  during  the 
period,  though  this  book  purports  to  have 
been  kept  from  the  time  of  the  appellant'^ 
transfer  to  the  Rohri  Shed  upto  the  time 
of  the  accident.  It  would  appear  that  whea 
the  appellant  was  off  and  on  required  to 
carry  out  Shed  repairs  to  any  boiler  or  to 
re-place  worn  out  parts  he  made  notes  of  it 
in  this  book.  It  is  not  at  all  a  book  main- 
tained as  a  substitute  for  the  office  copies 
of  the  quarterly  report.  He  has  availed  of 
it  to  prove  that  he  carried  out  the  quarter^ 
ly  inspection  of  the  boiler  in  question  by 
making  certain  additions  about  the  state 
of  this  boiler'and  the  dates  on  which  he,'ex- 
amined  it.  The  notes  in  Ex.  88  do  not 
however  prove  that  the  appellant  carried 
out  quarterly  inspection  of  the  boilers  in 
his  charge  or  that  he  submitted  the  quarter-* 
ly  reports.*  The  learned  Sessions  Judge 
has  rightly  pointed  out  that  after  the 
accident  the  appellant  was  in  a  dilemma. 
If  he  said  that  he  had  noted  in  the  report 
the  boiler  as  safe  in  January,  the  state  of 
the  boiler  would  show  that  his  report  was 
incorrect,  and  if  he  said  that  he  had  noted 
the  boiler  to  be  unsafe,  he  would  have  to 
explain  why  he  did  not  despatch  an  urgent 
memo  to  the  District  Loco.  Superintendent, 
and  stop  the  boiler  from  working.  He  there- 
fore, fabricated  an  evasive  entry  in  this 
book  Ex.  88  :  "  Crown  bolts  badly  encrust? 
ed,  patches  leaking,  to  be  watched,  tubes 
good  as  far  as  can  be  seen."  The  appel- 
lant was  himself  uncertain  as  to  the  effect 
of  this  entry  and  when  questioned  by  Mr. 
Brock  he  said  that  he  had  sent  a  memo 
stopping  the  engine,  thereby  showing  that 
he  considered  the  boiler  unsafe,  though  no 
such  memo,  could  be  traced,  and  when 
questioned  by  the  Senior  Government  In- 
spector he  told  him  that  he  considered  the 
boiler  safe.  If  this  entry  be  true,  and  the 
appellant  really  found  that  the  bolts  were 
badly  encrusted  and  patches  leaking  and  to 
be  watched,  there  was  a  greater  obligation 
on  him  to  examine  thoroughly  the  crown 
stays  and  also  to  watch  the  state  of  the 
boiler  each  time  the  engine  was  sent  out 


1.  0.  1926J 


\\OODWARD  V,  EMPfeROR. 


437 


of  the  Shed.  There  is  nothing  in  his  notes 
to  show  that  he  did  either. 

We  are  of  opinion  that  the  appellant's 
action  in  manipulating  Exs.  87  and  88  was 
most  foolish  and  ill-advised. 

Mr.  Fatehchand,  the  learned  Pleader,  for 
the  appellant  has  urged  that  the  conduct 
of  the  appellant  in  not  stopping  the  boiler 
from  work  is  consistent  with  his  having 
committed  an  error  of  judgment. 

In  support  of  this  plea  it  is  urged  that 
it  is  a  matter  of  opinion  if  the  minimum 
thickness  of  crown  stays  for  safety  should 
beJVffth  of  an  inch  or  less,  and  that  even 
if  the  thickness  of  the  stays  were  only 
itli  of  an  inch,  they  would  be  able  to 
bear  the  maximum  pressure  of  steam.  As 
the  stays  were  of  an  average  thickness  of 
•fVth  of  an  inch  the  act  of  the  appellant 
in  not  stopping  the  engine  from  work  was 
an  error  of  judgment. 

There  may  have  been  some  force-  in  this 
argument  if  the  appellant  had  removed  the 
encrustations  and  cleaned  the  stays.  He 
cannot  claim  the  benefit  of  an  error  of  judg- 
ment when  he  exercised  none.  Again  it  is 
to  be  observed  that,  if  all  the  stays  were 
of  the  uniform  thickness  of  |th  of  an  inch, 
they  could  withstand  the  pressure  of  steam. 
It  does  not  follow  that  stays  of  less  than 
•i^th  of  an  inch  would  be  able  to  bear 
the  same  pressure  when  some  of  the  stays 
were  completely  gone,  and  others  reduced 
to  less  than  ^th  of  an  inch.  The  front 
ten  stays  afforded  a  fair  index  to  the  appel- 
lant as  to  the  condition  of  the  stays  in  the 
back  rows,  and  as  these  ten  stays  were  com- 
pletely gone,  it  is  difficult  to  believe  that 
if  the  appellant  had  applied  his  mind  to 
it,  he  could  have  fallen  into  any  error  of 
judgment. 

The  second*  contention  raised  by  Mr. 
Fatehchand  is  that  the  dereliction  of  duty, 
if  any,  was  not  so  gross  as  to  make  it 
culpable,  and  has  relied  on  certain  Eng- 
lish rulings  in  support  of  his  contention. 
These  rulings  which  are  based  on  the  Eng- 
lish Common  Law  have  very  little  bearing 
on  the  codified  law  in  force  here  and  should 
be  applied  with  some  caution.  Under  the 
Common  Law  whether  a  dereliction  of  duty 
in  any  particular  case  is  criminal  or  not  is 
a  question  of  fact  in  each  case.  As 
said  by  Lord  Blackburn  in  R.  Eyre  (1) 
"  'criminal  negligence'  is  a  phrase  con- 
stantly used  in  criminal  cases,  but  The 

I)  Fialasoa's  Report  57. 


amount  of  negligence  that  would  make  a 
man  so  responsible  cannotlbe  defined.  It 
is  not  a  little  failure  in  duty  that  would 
make  him  criminally  responsible.  A  great 
failure  of  duty  undoubtedly  would.  The 
line  between  the  two  is  hard  to  define  and 
must  be  left  to  a  very  great  extent  in  each 
individual  case  to  the  common  sense  of  the 
Jury  whether  or  not  the  degree  of  failure 
of  duty  is  criminal." 

So  far  as  the  facts  of  this  case  go,  there 
can  be  no  doubt  that  the  appellant  is  not 
guilty  of  a  little  failure  of  duty,  but  a 
great  failure  for  over  a  long  period  of  the 
very  duty  with  which  he  was  particularly 
entrusted,  for  it  is  in  evidence  that  stays 
could  not  have  got  corroded  and  reduced 
to  that  thickness  in  the  course  of  two  or 
three  months,  and  he  failed  to  perform  this 
duty  notwithstanding  his  special  attention 
being  drawn  by  the  circular  of  December 
1923  to  the  importance  of  the  stays  being 
examined  periodically  and  his  personal 
knowledge  of  a  boiler  having  burst  in 
consequence  of  the  side  stays  giving  way. 
This  dereliction  of  duty  is  as  gross  as  it 
could  possibly  be.  The  expression  a  gross 
neglect  "  however  finds  no  place  in  the 
Indian  Criminal  Codes  and  there  is  no 
occasion  or  reason  for  introducing  "it  here. 
The  codified  Criminal  Law  of  India  does  not 
render  a  mere  casual  inadvertance  to  duty 
criminal,  but  such  neglect  of  duty  as  either 
directly  results  in  loss  of  life  or  injury  to 
person  (ss,  304-A,  337  and  338,  Indian  Penal 
Code,  and  in  certain  special  cases)  or  such 
neglect  as  endangers  life  or  property  (ss  279 
to  289,  Indian  Penal  Code,  ss,  102  and 
128  of  the  Indian  Railways  Act).  In  the 
present  case  the  neglect  of  duty  has  direct- 
ly resulted  in  loss  of  life. 

Mr.  Fatehchand  has  further  contended 
that  the  cause  of  this  accident  is  consistent 
with  the  engine  driver  having  put  on  the 
brakes  too  suddenly  or  negligently  thereby 
causing  a  greater  steam  pressure  on  the 
boiler,  and  that  the  immediate  cause  of  the 
accident  was  the  act  of  the  engine-driver. 

He  has  urged  that  as  the  engine  was 
drawing  a  load,  there  was  less  pressure  on 
the  stays  and  less  chance  of  the  crown 
plate  giving  way  at  that  time  unless  a 
sudden  attempt  had  been  made  to  stop 
the  engine.  There  is  nothing  to  show  that 
the  crown  plate  may  not  have  yielded  to 
pressure  of  Bteam  while  the  engine  was 
moving.  Even  assuming  that  the  engine- 
driver  saw  some  person  ahead  and  attempt- 


438 


t.  EMPEROR. 


[92  I.  0. 192(J] 


ed  to  slow  down  the  engine  or  stop  the 
train,  and  in  so  doing  contributed  in  part 
to  the  accident,  this  is  no  defence  to  the 
charge.  The  proximate  cause  of  the  ac- 
cident, however,  is  not  the  sudden  stopping 
of  the  train  for  it  is  expected  that  the  boiler 
of  a  locomotive  should  be  strong  enough  to 
withstand  such  strain,  but  the  weakness  of 
the  stays.  It  is  also  not  open  to  the  appel- 
lant to  rely  on  the  plea  of  contributory 
negligence  which  has  a  distinct  and  re- 
cognised place  in  the  Law  of  Torts,  but  finds 
no  place  in  an  indictment  for  criminal 
negligence.  We  are  of  the  opinion  that  the 
appellant  has  been  rightly  convicted  on  the 
first  count. 

Though  the  object  of  the  appellant  to 
manipulate  Ex.  b7  was  mainly  intended  to 
screen  himself  from  criminal  liability  for 
neglect  at  duty,  he  stood  to  gain  by  it,  if 
he  could  convince  the  Senior  Inspector 
that  the  entries  in  Ex.  67  were  true.  As 
pointed  out  by  the  learned  Sessions  Judge 
he  would  have  been  permitted  to  continue 
in  service,  though  he  was  unfit  for  it. 
There  is  also  evidence  to  show  that  he  used 
Ex.  87.  We  are  of  opinion  that  he  has  been 
rightly  convicted  on  the  second  count  as 
well.  « 

Mr.  Falehchand  has  lastly  urged  that 
there  was  a  misjoirider  of  charges  which 
rendered  the  trial  illegal,  The  three  counts 
under  which  the  appellant  has  been  charged 
may  fairly  be  said  to  be  in  respect  of  one 
and  the  same  transaction  within  the  mean- 
ing of  s.  235,  el.  (1),  Or.  P.  C.  The  expres- 
sion ''same  transaction"  is,  as  pointed  out 
in  Crown  v.  Ghulam  (2),  incapable  of  exact 
definition  and  has  been  advisedly  used  in 
this  section  and  s.  239.  The  arena  of  facts 
covered  by  the  expression  "same  transac- 
tion" varies  with  the  circumstances  of  each 
case.  In  Emperor  v.  Sherufalli  (3)  it  was 
pointed  out  that  the  real  and  substantial 
test  for  determining  whether  several  offences 
are  so  connected  together  as  lo  form  one 
transaction  depends  upon  whether  they  are 
related  together  in  point  of  purpose  or  as 
cause  and  effect  or  as  principal  or  sub- 
sidiary acts  so  as  to  constitute  one  continu- 
ous action.  Criminal  misappropriation 
and  falsification  of  accounts  in  order  to 
scieen  the  misappropriation  in  Emperor  V. 
Jilan  Krishna  Bagchi  (4),  criminal  breach 
of  tiust  and  falsification  of  accounts  made 

(2)  It'  L  R.  73:8  Cr.L.J.  191. 
(3)2<B.  135r*Uom.  L.R  9:0. 
14)  20  tad.  CM.  412;  40  0,  318;  14  Or,  L,  J.  428, 


to  conceal  the  breach  of  trust  in  Emperor 
v.  Jagat  Ram  (5),  the  charge  of  murder 
and  of  causing  evidence  of  the  murder 
to  disappear  with  the  intention  of 
screening  the  offender  in  Hanmappa  Rudi- 
rappa  v.  Emperor  (6),  Crown  v.  Ghulam  (2) 
and  Emperor  v.  Bawa  Manghnidas  (7)  caus- 
ing grievous  hurt  with  the  object  of  ex- 
torting a  confession  from  a  person  and 
after  his  death  forging  entries  to  conceal 
the  cause  of  death  in  Emperor  v.  Balwant 
Kondo  (S)  misappropriation  of  ornaments 
taken  charge  of  by  a  Police  Officer  from  a 
lady  and  the  subsequent  alteration  of  en- 
tries in  the  Police  diaries  to  show  that  the 
ornaments  were  not  taken  charge  of  at 
the  Police  (Station  in  Bilash  Chandra  Baner- 
jee  v.  Emperor  (9)  have  all  been  held  to 
fall  within  the  purview  of  s.  235,  cl.  (1). 
Here  the  appellant  was  similarly  charged 
with  forging  entries  in  order  to  conceal 
his  offence  of  criminal  neglect.  The  evi- 
dence to  prove  the  charge  on  the  first 
count  was  relevant  to  prove  the  charge  on 
the  second  count  and  vice  versa.  The 
appellant  cannot  even  plead  that  he  has 
been  prejudiced  by  the  joint  trial.  We 
hold  that  there  has  been  no  misjoinder  of 
charges. 

We  have  carefully  considered  the  question 
of  enhancement  of  sentence.  The  crimi- 
nal neglect  of  the  appellant  was  to  a  certain 
extent  encouraged  by  the  District  Loco. 
{Superintendent's  office  in  not  calling  for 
the  quarterly  returns.  The  first  expedite 
sent  by  the  office  was  after  a  peiiod  of  over 
twenty-two  months  in  January  1923  and 
was  probably  a  result  of  the  circular  Ex.  71. 
In  response  to  that  expedite  the  appellant 
submitted  the  reports  for  two  engines  hous- 
ed at  Pad-ldan  and  five  engines  at  Khan- 
pur  which  were  also  under  his  charge,  but 
was  too  inactive  or  lazy  to  examine  and 
report  on  the  eighty  engines  housed  at 
Rohri.  If  the  District  Loco.  Superintend- 
ent's office  had  been  more  active,  probably 
the  appellant  would  have  looked  up  a  bit 
and  this  terrible  accident  might  have  been 
avoided.  We  have  been  told  that  the 
appellant  not  only  loses  his  appointment, 

(5)  48  Ind.  Gas,  167,  19  Or.  L.  J  087. 
(6;  82  Ind.  Gas.  709;  25  Bom,  L.  R.  231;  (1923)  A'.  1 
R,  (H  J  262;  25  Cjr.  L.  J,  1349. 

(7)  8  Ind.  Gas.  93d;  4  S.  L.  R.  174;  11  Or.  L,  J. 
731. 

(8)  13  Ind.  CrP.  825;  14  Bom.  L.  R.  41*  13  Gr.  L  J. 
127. 

(9)  77  Ind.  Gas.  231;  27  C.  W,  N,  026;  UO?3N  A,  „  K, 
(C,j  047;  25  Or,  L,  J,  343, 


KERMAT  MANUAL  V,  EM^ERO*. 


[92  I.  0,  1926] 

but  with  a  conviction  standing  against  him 
itwill«be  difficult  for  him  to  get  employ- 
ment, and  this  in  itself  would  be  a  suffi- 
cient punishment  for  him  and  for  his 
family  who  are  now  rendered  helpless  in 
England. 

Taking  into  consideration  all  the  circum- 
stances, we  think,  it  will  meet  the  ends  of 
justice  if  we  sentence  him  to  six  months' 
rigorous  imprisonment  instead  of  six  months1 
simple  imprisonment  on  the  first  count, 
and  to  one  month's  rigorous  imprisonment 
on  the  second  count,  both  sentences  to  run 
concurrently,  and  order  that  the  portion 
of  the  sentence  already  undergone  by  him 
be  treated  as  part  of  this  sentence  and  be 
deemed  to  have  been  one  of  rigorous  im- 
prisonment, 

z.  K.  Conviction  confirmed, 


439 


CALCUTTA  HIGH  COURT, 

CKIMINAL  APPEAL  No.  568  OF  1924. 

February  12,  1925. 
Present  .-—Justice  Sir  Babington  Newbould, 

Kx.,and  Mr.  Justice  B.  B.  Ghose. 

KERAMAT  MANDAL  AND  ANOTHER— 

Ace  CJSBD — APPELLANTS 

versus 

EMPEROR—OpposiTB  PART?. 
Criminal  Procedure  Code  (Act  V  of  1898),  ss  162, 
233,  239—Penal  Code  (Act  XLV  of  1860),  ss.  366,  876 
—Evidence  Act  (1  of  1872),  s  155  (l>)~Abdnctinn  and 
rape  on  different  occasions — Joint  charge,  legality  of 
—  Abduction,  what  constitutes — Statements  made  to 
Police  during  investigation,  admissibiLity  of— State- 
ments of  persons  not  examined  as  witnesses  as  to 
whereabouts  of  accused  at  time  of  occurrence,  ad- 
missibility  of  -Character  of  prosecutrix,  whether  re- 
levant. 

K  and  B  abducted  a  woman  and  committed  rape 
\ipon  her  at  a  place  called  D.  The  woman  was  sub- 
eoquently  taken  by  B  to  different  places  where  he  alono 
committed  rape  upon  her.  On  these  facts  : 

Held,  (1)  that  a  joint  charge  under  H.  366  of  the 
Penal  Code  against  both  K  and  B  was  justified;  [p.  439, 
col,  2.1 

(2)  that    a  joint    charge    under  s.  376  of   the  Penal 
Code  against  both  of  them    in  respect    of  the    occur- 

.rence  which  took  place  at  D  was  aho  justified;  [p.  440, 
col.  1 J 

(3)  that    a  joint    charge  against    both  of   them   of 
having  committed  rape  upon  the  woman  at  D  and  in 
other  places  was  both  improper  and  embarrassing  • 
[ibid.] 

(4)  that  if  it  was  intended  to    prosecute  B  with  re- 
gard to  the  offences   that  he  was   accused   of  having 
committed  elsewhere  there  should  be  separate  charges 
wMi  regard  to  those  offences,     [ibid.] 


In  order  to  sustain  a  charge  under  s.  366  of  the 
Penal  Code,  it  is  not  necessary  for  the  prosecution  to 
establish  that  after  the  woman  had  been  by  force 
compelled  to  leave  her  house,  she  was  by  force  com- 
pelled to  go  to  various  places,  [p.  400,  col.  l.J 

Under  s.  162,  Cr.  P.  C.,  no  statement  or  any  record 
thereof  whether  in  a  Police  diary  or  otherwise  or  any 
part  of  such  statement  made  by  any  person  to  a  Police 
Officer  in  the  course  of  an  investigation  under  Ch. 
XIV  of  the  Cr.  P.  C.,  is  admissible  as  evidence  except 
as  provided  in  the  second  para,  of  that  section,  [ibid.] 

Evidence  of  !•  ••"  '  i  "Mi  .-  statements  made  by  an 
accused  person  ••  -.s  •  ,.i  •  .  custody  of  the  Police 
and  of  his  having  pointed  out  the  places  where  he 
had  taken  the  abducted  woman  during  the  course 
of  the  night  in  which  the  offence  of  abduction  is  alleg- 
ed to  have  been  committed  are  not  admissible  in  evi- 
dence, [p.  440,  col.  2  "1 

A  statement  made  by  a  person  who  is  not  examined 
as  a  witness  that  the  accused  was  not  in  his  house  on 
the  night  on  which  the  offence  is  alleged  to  have 
been  committed  is  not  admissible  in  evidence,  [t&id] 

In  a  caso  of  rape  evidence  as  regards  the  general 
immoral  character  of  the  woman  is  relevant  under 
s.  155  (4)  of  the  Evidence  Act.  [p.  441,  col.  1.] 

Criminal  appeal  against  an  order  of  the 
Sessions  Judge,  Rajshahi. 

Babu  Debendra  Narain  Bhattacharjee,  for 
the  Appellants. 

Mr.  Khondkar,  (Deputy  Legal  Remem- 
brancer), for  the  Crown. 

JUDGMENT, — The  appellants  in  this 
case  Keramat  Mandal  and  Belat  Ali  Mandal 
were  tiied  by  the  Sessions  Judge  of  Raj- 
shahi with  the  assistance  of  a  Jury  on  two 
charges  under  ss.  366  and  376,  Indian  Penal 
Code.  The  Jury  returned  a  unanimous 
verdict  of  guilty  against  the  first  appellant 
on  both  charges  and  a  verdict  by  a  majority 
of  four  to  one  of  guilty  on  both  charges 
against  Belat  Ali.  The  learned  Sessions 
Judge  accepted  the  verdict  and  sentenced 
both  the  appellants  to  transportation  for 
life  under  s.  376,  Indian  Penal  Code,  no 
separate  sentence  being  awarded  under 
s.  366,  Indian  Penal  Code. 

On  behalf  of  the  appellants  several 
grounds  have  been  taken  the  first  of  which 
being  with  reference  to  misjoinder  of 
charges.  With  regard  to  the  first  charge 
under  s.  366,  Indian  Penal  Code,  no  objection 
is  taken  and  it  appears  to  us  to  be  quite 
in  order.  The  difficulty  is  caused  with 
regard  to  the  second  charge  which  runs 
thus :  "Secondly  that  you  on  or  about  the 
25th  day  of  May  1924  at  Dasmari  P.  S. 
Paba  and  other  places  committed  rape  on 
Benodini."  The  story  of  the  prosecution 
was  that  rape  was  Committed  on  Benodini 
on  a  field  at  Dasmari  by  both  the  accused 
persons,  Subsequently  this  woman  was 


440 

taken  either  by  force  or  by  fraud  by  Belat 
Ali  alone  to  different  places  where  he  alone 
committed  rape  upon  her.  In  this  circum- 
stance a  joint  charge  against  both  the 
accused  of  having  committed  rape  upon 
Benodini  at  Dasmari  and  in  other  places  is 
improper.  We  are  of  opinion  that  such  a 
charge  is  also  •  •  *  •  •"•  .  It  is  urged  on 
behalf  of  the  Crown  that  although  this  is 
not  a  proper  charge  this  has  not  in  fact 
occasioned  a  failure  of  justice,  because  if 
the  evidence  on  behalf  of  the  prosecution 
as  to  the  first  act  of  rape  in  the  field  at 
Dasmari  was  believed  by  the  Jury,  both  of 
the  accused  persons  might  be  convicted 
of  the  offence.  It  is  possible  that  this  is  so, 
but  having  regard  to  the  other  questions 
on  which  we  consider  this  trial  has  been 
vitiated  we  think  that  in  the  subsequent 
trial  this  error  in  the  charge  should  be  set 
right,  Although  both  of  the  accused  per- 
sons might  have  been  jointly  charged  with 
both  the  offences  which  were  committed  at 
Dasmari,  if  it  is  intended  to  prosecute 
Belat  Ali  with  regard  to  the  offences  that 
he  was  accused  of  having  committed  else- 
where there  should  be  separate  charges 
with  regard  to  those  offences.  While  deal- 
ing with  this  matter  we  may  also  point  out 
that  in  his  charge  to  the  Jury  with  refer- 
ence to  the  offence  under  s,  366,  Indian 
Penal  Code,  the  learned  Judge  has  stated 
this :  You  shall  have  to  see  (a)  if  the 
woman  Benodini  was  by  force  compelled 
to  leave  her  house  and  to  go  to  the  various 
place*?.  In  our  opinion  it  is  not  necessary 
for  the  prosecution  to  establish  that  she 
was  by  force  compelled  to  leave  not  only 
her  house  but  compelled  to  go  to  various 
places  in  order  to  sustain  the  first  charge  on 
which  the  accused  were  tried. 

The  principal  question  on  which  we  hold 
that  the  trial  has  been  vitiated,  is  of  erro- 
neous admission  of  evidence.  The  first  is 
that  evidence  has  been  admitted  as  to  what 
Benodini  has  stated  to  the  Investigating 
Police  Officer  and  her  pointing  out  the  places 
where  she  was  taken.  The  statement  of 
another  witness,  that  is,  the  mother-in-law 
of  Benodini  before  the  Police  has  also  been 
put  in  evidence.  We  should  point  out  that 
under  s.  162,  Or.  P.  0.,  no  statement  or  any 
record  thereof  whether  in  a  Police  diary  or 
otherwise  or  any  part  of  such  statement 
made  by  any  person  to  a  Police  Officer  in 
the  course  of  an  investigation  under  Oh. 
XIV  of  the  Or.  P.  0,  is  admissible  as 
evidence  except  00  provided  in,  the  second 


KERAMAT  MANDAL  V.  EMPEROR. 


(92  I.  O.  1926J 


para,  of  that  section.  I,t  was  urged  on 
behalf  of  the  Crown  that  the  statements 
that  were  put  in  evidence  were  not  corro- 
borative of  the  facts  sworn  to  the  witnesses 
in  the  box,  but  w^re  practically  harmless 
and  could  not  affect  the  decision  as  regards 
the  main  story  of  the  offences.  It  ip 
difficult  for  us  to  say  how  it  worked  on 
the  minds  of  the  Jury,  and  the  law 
forbids  such  evidence  being  introduced  in 
the  manner  it  has  been  done.  In  this 
particular  case  the  statements  that  were 
made  by  the  witness  to  the  Police  Officer  and 
the  fact  of  pointing  out  the  places  to  him 
ought  to  have  been  kept  back  from  the 
Jury,  as  such  facts  were  not  brought  out  in 
evidence  011  behalf  of  the  defence  as  provid- 
ed by  s.i  162  of  the  Code.  A  still  more 
objectionable  thing  happened  in  allowing 
the  evidence  of  the  statements  of  Belat  Ali 
while  in  ciistody  of  the  Police  Officer,  and 
of  his  having  pointed  out  the  places  where 
he  had  taken  the  woman  during  the  course 
of  the  night  in  which  the  offence  is  alleged 
to  have  been  committed.  Although  the 
learned  Judge  has  stated  in  the  last  part 
of  his  charge  that  the  Jury  should  reject 
the  evidence  as  regards  the  part  taken  by 
Belat  Ali  in  pointing  out  the  places,  the 
mischief  of  introducing  inadmissible  evi- 
dence had  already  been  done.  It  seems 
that  the  learned  Judge  allowed  this  evidence 
to  be  introduced  on  the  ground  that  it  was 
the  conduct  of  the  accused  influenced  by  a 
fact  in  issue.  It  can  hardly  be  said  that 
the  statements  of  the  accused  were  admissi- 
ble as  his  conduct.  These  statements  were 
certainly  of  an  incriminating  nature  and 
were  not  admissible  under  the  law. 

The  next  objection  which  is  also  of  sub- 
stance is  that  when  search  was  made  for 
Belat  Ali  two  persons Kafil  and  Sukalal  were 
alleged  to  have  said  that  Belat  Ali  was 
absent  from  home  on  the  night  of  the 
occurrence.  These  two  persons  have  not  been 
examined  in  Court  but  their  allegations 
about  the  absence  of  Belat  Ali  were  allowed 
to  go  in.  Those  statements  were  certainly 
inadmissible.  The  learned  Judge  only  refers 
to  that  fact  while  dealing  with  the  argu- 
ments on  behalf  of  the  defence. 

On  this  ground  of  wrong  admission  of 
evidence  we  must  set  aside  the  conviction 
and  sentence  and  send  the  case  back  for 
re-trial  according  to  law.  While  doing  so 
we  desire  to  make  certain  observations  with 
regard  to  the  nature  of  the  statement  made 
by  Belat  Ali  to  the  Magistrate  by  way  of 


ABDUL  HAFIZ  KHAN  V.  EMPEROR. 


[92  I.  6.  1926] 

confession.  This  statement  is  not  really  a 
confession,  because  so  far  as  it  goes  it  is 
self-exculpatory.  The  learned  Judge  was, 
therefore,  wrong  in  using  the  expression  that 
it  was  a  confession. 

The  next  point  is  that  the  learned  Judge 
begins  by  saying  that  on  a  question  of  rape 
the  character  of  the  woman  is  not  relevant. 
It  seems  to  us  that  what  the  learned  Judge 
means,  as  he  says  subsequently,  is  that 
even  a  woman  of  immoral  character  may 
be  the  subject  of  rape.  In  such  a  case 
evidence  as  regards  the  general  immoral 
character  of  the  woman  is  relevant  evidence 
as  enacted  in  s.  155  (4)  of  the  Evidence 
Act.  We  noticed  that  the  learned  Judge 
admitted  evidence  which  suggested  that 
the  woman  concerned  in  this  case  was  of 
bad  character  and  he  dealt  with  this  matter 
in  his  charge.  We  are  of  opinion,  therefore, 
that  the  learned  Judge  was  quite  aware  of 
the  provisions  of  the  law,  but  the  use  of  the 
expression  that  the  character  of  the  woman 
is  not  relevant  is  somewhat  misleading. 

The  result  is  that  we  set  aside  the  convic- 
tion and  sentence  passed  on  the  appellants 
$nd  send  the  case  back  for  re-trial.  The 
accused  will  be  tried  on  the  following 
charges.  The  one  charge  against  both  the 
accused  under  B.  366,  Indian  Penal  Code, 
as  framed  ;  one  charge  against  the  accused 
No.  1,  Keramat  Mandal,  for  committing 
rape  on  Benodini  at  Dasmari;  a  separate 
charge  against  Belat  Ali  for  committing 
rape  on  Benodini  at  Dasmari;  and  if  the 
prosecution  so  desires  a  separate  charge  of 
rape  against  Belat  Ali  for  what  has  been 
alleged  to  have  taken  place  subsequent  to 
Benodini  being  taken  away  from  the  field  at 
Dasmari. 

z.  K.  Conviction  set  aside: 

Case  remanded. 


441 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  450  OP  192D. 

August  26,  1925. 

Present: — Mr.  Justice  Kanhaiya  Lai. 

ABDUL  HAPIZ  KHAN— ACCUSED 

— APPLICANT 

versus 

EMPEROR— OPPOSITE  PAKTY. 
U.  P.  Excise  Act  (IV  of  1910),  s.  5tf -Criminal  Pro- 
Code  (Act   V  of  189$^  9,  1Q$— Search,  irregular 
ion,  legality  of. 


An  irregularity  in  the  search  does  not  render  illegal 
tho  conviction  of  a  person  who  is  found  in  possession 
of  an  excisable  article  oil  such  search.  [  p.  442,  col.  2.] 

Emperor  v.  Allahdad  Khan,  1'J  Ind.  Oas.  332,  11  A. 
L  J  442;  14  Cr.  L.  J.  236,  35  A.  358,  Syed  Ahmad  v. 
Empernr,  22  Ind.  Oas.  163,  35  A.  575;  11  A.  L.  J,  933; 
15  Cr.  L.  J  19,  followed 

Kutru  v.  Emperor,  88  Ind.  Gas.  280;  23  A.  L.  J  364; 
L.  R  6  A.  124  Cr,  (1925;  A.  I.  K.  (A.)  434,  47  A.  575; 
26  Cr.  L,  J.  1112,  referred  to. 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Cawnpore,  d#ted  the  ISth 
July  1925. 

Mr.  Zahur  Ahmad,  for  the  Applicant. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT.—The  accused,  Abdul 
Hafiz  Khan,  was  found  in  possession  of  one 
ounce  of  cocaine  lying  in  a  trunk  inside 
his  house.  He  has  been  convicted  under 
s.  60  (a)  of  the  U.  P.  Excise  Act  and  sen- 
tenced to  rigorous  imprisonment  for  eight 
months  and  a  fine  of  Rs.  500.  It  appears 
that  the  .Excise  Inspector  received  inform- 
ation that  certain  men  had  come  from 
Rampur  and  were  engaged  in  selling  co- 
caine at  Cawnpore.  The  accused  is  a  resi- 
dent of  Rampur  and  is  now  living  at 
Cawnpore.  When  the  Excise  Inspector 
received  the  above  information,  he  arranged 
that  50  ounces  of  cocaine  should  be  pur- 
chased at  Rs.  65  per  ounce  by  the  informer. 
He  had  completed  the  arrangement  for  its 
purchase  and  was  trying  to  arrange  for 
the  price  when  on  the  19th  April  he  re- 
ceived further  information  that  one  of  his 
informers  had  divulged  that  information 
to  the  smugglers  and  that  they  were  leav- 
ing the  shop  on  the  Latouche  Road  which 
was  in  their  occupation.  He,  therefore 
hurried  to  the  house  and  the  shop  occupied 
by  the  accused  without  waiting  to  obtain  a 
search  warrant  from  the  Collector  under 
s.  53  of  the  Excise  Act,  The  shop  was 
found  closed.  It  was  opened  but  nothing 
excisable  was  found  in  it.  The  Excise  In- 
spector arid  the  constable  who  accompanied 
him  then  went  to  the  house  of  the  accused 
accompanied  by  two  search  witnesses,  one 
of  whom  was  a  neighbour  keeping  a  leather 
shop  in  an  adjoining  house  and  the  other 
was  the  Excise  Inspector's  own  tonga-driver. 
On  a  search  being  made  in  the  house 
the  packet  containing  an  ounce  of  cocaine 
was  found  in  a  steel  trunk  which  also  con- 
tained clothes  and  jewellery.  Both  the  Courts 
below  accepted  the  evidence  of  the  Excise 
Inspector  and  the  two  search  witnesses  and 
convicted  the  accused. 

The  contention  here  is   that  the  search 


442  KHIJIRUDDIN  V.  EMPEROR. 

was  illegal  because  there  was  ample  time 
for  the  Excise  Inspector  to  have  obtained 
a  warrant  from  the  Collector  before  mak- 
ing the  search,  and  to  have  got  two  search 
witnesses  from  the  locality  to  accompany 
him  when  he  went  inside  the  house  to  make 
the  search.  Section  53  of  the  U.  P.  Excise 
Act  provides  that  where  a  Collector  or  an 
officer  of  the  Excise  Department  not  below 
such  rank  as  the  Local  Government  may 
prescribe  or  a  Police  Officer  not  below  the 
rank  of  an  officer  in  charge  of  a  Police 
Station  has  reason  to  believe  that  an  offence 
punishable  under  certain  sections  of  the 
Excise  Act  is  being  or  likely  to  be  com- 
mitted in  a  certain  place  and  that  a  search 
warrant  cannot  be  obtained  without  afford- 
ing the  offender  an  opportunity  of  escape 
or  of  concealing  evidence  of  the  offence, 
he  may  at  any  time  by  day  or  night  enter 
and  search  such  place,  provided  that  any 
officer,  other  than  a  Collector,  taking  action 
under  this  sub-section  shall  before  entering 
such  place  record  the  grounds  of  his  belief 
as  aforesaid.  The  learned  Sessions  Judge 
had  rightly  pointed  out  that  even  if  the 
Excise  Inspector  had  no  opportunity  of  ob- 
taining a  warrant  from  the  Collector  and 
thought  that  any  delay  would  afford  the 
offender  an  opportunity  of  escape  or  of 
concealing  evidence  of  the  offence,  it  was 
his  duty  before  proceeding  to  make  the 
search  to  record  the  grounds  for  his  belief 
that  an  offence  of  the  kind  mentioned  was 
being  or  likely  to  be  committed  and  that 
an  immediate  search  was  necessary.  The 
Excise  Inspector  does  not  appear  to  have 
recorded  any  proceeding  showing  the 
grounds  of  such  belief;  and  that  was  a 
Berious  irregularity  which  but  for  the  clear 
evidence  adduced  in  this  case  and  accepted 
by  the  Courts  below  might  have  seriously 
affected  the  situation,  The  object  of  the 
provision  is  that  searches  should  not  be 
lightly  carried  out  on  the  strength  of  a 
suspicion  formed  without  adequate  basis 
and  that  there  should  be  some  guarantee 
that  the  information  received  had  been 
independently  examined  and  found  to  be 
reliable  and  that  a  search  was  necessary 
in  the  public  interest.  The  learned  Ses- 
sions Judge  thinks  that  there  was  ample 
opportunity  in  the  present  case  for  the 
Excise  Inspector  to  have  obtained  a  war- 
rant; but  even  if  that  was  so,  the  irregu- 
larity in  the  proceedings  leading  to  the 
search  would  not  mitigate  the  offence  or- 
operate  as  a  bar  to  the  conviction  of  the 


[92 1.  0.  1926J 

accused  as  satisfactory  evidence  of  an  ex- 
cisable article  having  been  found  in  his 
house  or  possession  is  forthcoming.  As 
pointed  out  in  Emperor  v.  Allahdad  Khan 
(1)  and  Syed  Ahmad  v.  Emperor  (2)  the  ab- 
sence of  the  search  warrant  does  not  render 
the  subsequent  conviction  of  the  person 
found  in  possession  of  an  excisable  article 
on  such  search  illegal.  It  is  also  urged 
that  the  provisions  of  s.  103,  Or.  P.  C.,  were 
imperative  and  that  the  search  was  illegal 
because  the  Excise  Inspector  and  the  Police 
constable  who  accompanied  him  did  not 
take  two  respectable  inhabitants  of  the 
locality  with  them  when  they  went  to 
search  the  house.  It  is  undoubtedly  im- 
portant that  an  officer  making  a  search- 
should  comply  with  these  provisions,  for 
the  credibility  of  his  story  may  in  many 
cases  depend  on  the  support  it  might  re- 
ceive from  the  persons  accompanying  him 
in  the  search.  But  if  for  any  reason  the 
officer  making  the  search  is  unable  to  get 
two  or  more  respectable  inhabitants  of  the 
locality  and  a  search  is  effected  in  the 
presence  of  one  or  more  men  available  at 
the  time,  leading  to  the  discovery  of  an 
excisable  article,  the  accused  who  is  found 
in  possession  of  that  article  can  all  the 
same  be  convicted,  if  the  Court  is  satis- 
fied from  the  evidence  that  an  offence  has 
been  committed.  In  a  case  where  a  search 
had  been  carried  out  in  disregard  of  the 
provisions  of  ss.  25  and  30  of  the  Arms  Act 
it  was  held  that  though  the  search  was 
illegal,  the  person  found  in  possession  of 
the  arms  could  still  be  convicted.  [Kutroo 
v.  Emperor  (3)  j  There  is  no  reason  in  these 
circumstances  for  interfering  with  the  con- 
viction. The  sentence  is  not  excessive. 
The  application  is  dismissed. 

N.  H.  Application   dismissed. 

(1)  19  Tnd    Gas.  332;   11  A.  L.  J.  442;  14  Or.  L.  J 
236;  35  A.  358. 

(2)  22  Ind.  Gas.  163;  35  A.    575;    11  A  L.  J.  933;   15 
Gr  L.  J.  19. 

(3)  88  Ind.  Gas.  280;  23  A  L.    J.  364;  L.    R.  6  A  124 
Cr;  (1925)  A.  L  R.  (A.)  434;  47  A.  575;  26  Gr.  L.  J.  1112. 

CALCUTTA  HIGH  COURT. 

CRIMINAL  APPEAL  No.  259  op  1925. 

August  26,  1925. 
Present: — Mr.  Justice  Cuming  and 

Mr.  Justice  Mukerji. 

KHIJIRUDDIN  AND  OTHERS—ACCUSED 

—APPELLANT 

versus 

EMPEROR— RESPONDENT. 
Criminal  Prwdure  Qofo  (Act  V  of  1898),  t , 


[92  I.  0. 1926] 


KHIJIRUDDIS  T,  EMPEROR. 


443 


Sessions  trial— Judge's  charge  to  Jury— Heads  of 
charge,  contents  of— Several  accused — Duty  of  Judge — 
Defence  evidence,  part  of,  not  placed  before  Jury, 
effect  of —Earliest  version  of  prosecution  case,  im- 
portance of— Evidence  Act  (I  of  1872),  ss.  6,  8,  J+5,  JJ, 
73,  154— Res  gestae,  what  is— Statement  influencing 
conduct  of  witness,  admissibility  of — Handwriting, 
proof  of — Comparison  with  admitted  handwriting,  whe- 
ther to  be  made  by  Jury — Cross-examination  of  party's 
own  witness,  effect  of — Ptrmission,  when  to  be  granted. 
The  object  of  a  summing  up  under  a.  297,  Cr  P.  0  , 
is  to  enable  the  Judge  to  place  before  the  Jury  the 
facts  and  circumstances  of  the  case  both  for  and 
against  the  prosecution  so  as  to  help  them  in  arriving 
at  a  right  decision  upon  the  points  which  arise  for 
their  consideration  fp  444,  col  2.] 

It  is  not  the  province  of  the  Judge  to  find  the  facts 
for  the  Jury  and  then  make  an  attempt  to  persuade 
them  to  accept  his  conclusions  as  correct,  [p  445. 
col.  2.1 

A  Judge's  charge  to  the  Jury  must  be  recorded  in 
such  a  way  as  would  enable  the  High  Court  sitting  as 
a  Court  of  Appeal  to  judge  whether  the  facts  and 
circumstances  of  the  case  had  been  properly  placed 
before  the  Jury  and  also  whether  the  law  had  been 
correctly  explained  to  them.  [p.  448,  col  2  ] 

A  mere  statement  in  the  heads  of  charge  that  the 
Judge  explained  certain  sections  of  the  Penal  Code  to 
the  Jury  does  not  satisfy  the  above  requirement. 
[ibid.] 

Where  several  accused  persons  are  being  jointly 
tried  and  the  case  as  against  all  of  them  does  not 
stand  on  the  same  footing  and  their  defences  are  also 
different,  the  Judge  must  ask  the  Jury  to  consider  the 
case  as  against  each  of  the  accused  individually.  The 
Judge's  failure  to  do  so  is  a  very  serious  omission  and 
is  likely  to  prejudice  the  accused  persons,  [p.  447, 
col.  1  ] 

A  verdict  obtained  from  the  Jury  without  placing 
before  them  an  important  piece  of  evidence  in  favour 
of  the  defence,  whatever  may  have  been  its  real  worth, 
cannot  be  sustained,  [p.  448,  col.  2.] 

The  earliest  version  of  an  occurrence  as  given  by  an 
informant  or  prosecutor  who  is  the  principal  witness 
to  the  occurrence,  and  on  whose  testimony  practically 
the  whole  case  depends,  must  always  be  placed  before 
the  Jury  in  order  to  enable  them  to  judge  of  the 
truth  or  falsity  of  the  prosecution  case.  [p.  447, 
col.  2.] 

When  a  witness  who  has  been  called  by  the  pro- 
secution is  permitted  to  be  cross-examined  on  behalf 
of  the  prosecution  under  the  provisions  of  s.  154  of 
the  Evidence  Act,  the  result  of  that  course  being  per- 
mitted is  to  discredit  that  witness  altogether  and  not 
merely  to  get  rid  of  a  part  of  his  testimony,  so  that 
the  accused  is  deprived  of  the  benefit  of  any  statement 
which  the  witness  may  thave  made  in  his  favour. 
For  this  reason  the  law  has  enacted  that  a  party 
desiring  to  cross-examine  its  own  witness  has  to  take 
the  permission  of  the  Court,  implying  thereby  that 
there  is  a  discretion  in  the  Court  whether  it  would 
permit  the  witness  to  be  cross-examined  or  not.  That 
discretion  must  always  be  exercised  with  caution  by 
the  Court  before  which  the  matter  comes  up  for  con- 
sideration, [p.  446,  col.  I.] 

What  a  person  states  at  the  time  of  an  occurrence 
in  respect  of  the,  occurrence  itself  is  res  gesta  under 
B.  6  of  the  Evidence  Act.  A  statement,  however,  made 
at  the  time  of  an  occurrence  relating  to  a  previous 
occurrence  which  took  place  a  year  earlier  is  not  parfc 
of  the  ret  grtrtce  and  is  not  Admissible  in  evidence, 
[p/448,  col  LJ 


A  statement  made  by  a  person,  who  is  not  examined 
as  a  witness,  is  not  admissible  under  s.  8  of  the  Evi- 
dence Act  as  having  affected  the  conduct  of  a  witness 
assuming  that  such  conduct  is  relevant,  [p.  448,  col.  1 1 

A  party  wishing  to  prove  that  a  document  is  in  the 
handwriting  of  a  particular  person  can  rely  upon 
expert  evidence  under  e  45  of  the  Evidence  Act,  or 
the  opinion  of  a  competent  witness  under  s.  47  of  the 
Act,  or  direct  comparison  of  the  document  with  proved 
or  admitted  documents  under  s.  73  of  the  Act  ^n  449 
col  2]  "  ^' 

When  an  accused  person  puts'  forward  in  his 
defence  a  letter  alleged  to  have  been  written  by  the 
prosecutor  and  the  latter  denies  the  fact,  and  the 
accused  requests  the  Court  to  compare  the  handwrit- 
ing of  the  letter  with  the  handwriting  of  documents 
admittedly  written  by  the  prosecutor,  the  Judge  must 
place  the  documents  before  the  Jury  and  ask  them  to 
make  the  comparison  and  decide  whether  the  hand- 
writings do  or  do  not  tally,  [p.  450,  col.  1.] 

Criminal  appeal  against  an  order  of  the 
Sessions  Judge,  Rungpur. 

Messrs.  S.  K.  Sen,  Wahed  Hossein,  Babua 
Pramatha  Lall  Dutt,  Jnan  Chandra  Roy 
and  Benoyendra  Prosad  Bagchi,  for  the  Ap- 
pellants. 

Mr.  A.  K.  Basu,  for  the  Crown. 

Babu  Lalit  Mohan  Sanyal,  for  the  Com- 
plainant. 

JUDGMENT. 

Mukerji,  J.— The  three  appellants,  that 
is  to  say,  No.  1  Khijiruddin  Sonar,  No.  2 
Nawabali  Sheikh  and  No.  3  Qamruzzaman 
(alias  Quamarulzaman)  were  tried  by  the 
Sessions  Judge  of  Rungpur  with  the  aid  of 
a  Jury.  The  Jury  were  divided  in  the  pro- 
portion of  four  to  one.  The  majority  con- 
victed the  appellants  in  respect  of  the 
charges  on  which  they  were  tried,  1*12.,  Nos.  1 
and  2  under  ss.  364,  344  and  120-B  and  No*  3 
under  ss.  364,  342  and  120-B.  The  learned 
Judge  accepting  the  verdict  convicted  the 
appellants  of  the  said  offences  and  sentenc- 
ed the  appellant  No.  1  to  rigorous  imprison- 
ment for  ten  yearsunders.  366,  Indian  Penal 
Code  and  to  rigorous  imprisonment  for 
three  years  under  s.  344,  Indian  Penal  Code, 
the  sentences  to  run  consecutively;  the  ap- 
pellant No.  2  to  rigorous  imprisonment  for 
three  years  under  s.  366,  Indian  Penal  Code, 
and  to  rigorous  imprisonment  for  one  year 
under  s.  344,  Indian  Penal  Code,  the  sen- 
tences to  run  concurrently;  and  the  appel- 
lant No.  3  to  rigorous  imprisonment  for  five 
years  under  s.  366,  Indian  Penal  Code,  and 
to  rigorous  imprisonment  for  one  year  under 
s.  342,  Indian  Penal  Code,  the  sentences  to 
run  concurrently.  No  separate  sentence  was 
passed  for  the  offence  under  s.  120-B,  Indian 
Penal  Code, 


444 

It  is  not  necessary  to  set  out  in  detail  the 
case  for  the  prosecution  upon  which  the 
trial  was  held,  for  it  is  to  be  found  narrated 
in  sufficient  detail  in  the  learned  Judge's 
charge  to  the  Jury.  Shortly  stated,  the 
prosecution  case  was  that  a  girl  Suhasini 
was  abducted  by  the  first  two  appellants 
some  time  in  February  1923  from  Gaibandha 
where  §he  used  to  reside  with  her  parents, 
that  thereaf ter  she  managed  to  escape  from 
the  custody  of  the  appellant  No.  1  some- 
time in  March  1923  when  she  was  again 
abducted  by  the  appellant  No.  1  from  a 
Railway  Station  called  Trimohini.  After 
the  second  abduction,  the  case  for  the  pro- 
secution is,  the  girl  remained  with  t  ap- 
pellant No  1  fnr  about  a  year,  .  ghly 
speaking  from  March  1923  till  Marc  1924. 
The  prosecution  case  further  is  tin  ^  after 
she  had  succeeded  in  escaping  from  the 
custody  of  the  appellant  No.  1  in  March 
1924  she  was  again  abducted  at  Gaibandha 
by  the  three  appellants  acting  in  conspiracy 
with  each  other.  She  was  thereafter  detain- 
ed, according  to  the  case  for  the  prosecu- 
tion, in  the  house  of  the  appellant  No.  3  for 
about  a  day  v\herefrom  she  was  removed  to 
the  house  of  the  appellant  No.  i  where  she 
was  detained  for  a  period  over  ten  days. 
According  to  the  prosecution  case  she  was 
recovered  from  the  house  of  appellant  No.  1 
t»n  execution  of  a  warrant  issued  by  the  Sub- 
Divisional  Officer  of  Gaibandha  who  had  in 
the  meantime  received  an  anonymous  letter 
informing  him  about  the  abduction.  She 
is  said  to  have  been  recovered  as  aforesaid 
on  the  6th  of  April  1924. 

The  defences  of  the  three  appellants  are 
not  exactly  the  same.  But  it  is  unnecessary 
to  set  out  the  defences  here,  because  the 
learned  Judge  in  his  charge  to  the  Jury 
has  given  a  substantially  correct  synopsis  of 
the  different  defences  of  the  three  appel- 
lants. 

Various  points  have  been  argued  before 
us  on  behalf  of  the  appellants  by  Mr.  Sen 
who  has  appeared  on  behalf  of  the  appel- 
lant No.  3  and  by  Mr.  Wahed  Hossain  who 
has  appeared  on  behalf  of  the  first  two  ap- 
pellants. Mr.  Basu  has  appeared  on  behalf 
of  the  Crown.  It  will  not  be  possible  with- 
in the  short  space  of  this  judgment  to  deal 
with  all  the  points  that  have  been  urged  in 
this  appeal.  These  points  vary  in  the 
degree  of  their  strength,  some  being  points 
of  very  great  importance  and  substance, 
other  apparently  appear  to  be  well -founded 
"but  have  been  succeasfully  met  by  Mr,  Basu 


v  EMPEROR.  [92  1.  C.  1926] 

and  others  again  rest  upon  very  slender 
basis  or  upon  materials  which  when  examin- 
ed do  not  afford  any  real  support.  It  would 
only  be  possible  to  refer  to  some  of  the 
salient  features  of  the  case  and  a  few  only  of 
the  grounds  which  to  us  appear  to  be  of 
importance. 

Before  dealing  with  the  points  I  desire  to 
make  a  few  observations  as  to  the  general 
character  of  the  learned  Judge's  charge  to 
the  Jury.  Section  297,  Cr  P.  C.,  enjoins 
that  when  the  case  for  the  defence  and  the 
prosecutor's  reply,  if  any,  are  concluded  the 
Court  shall  proceed  to  charge  the  Jury, 
summing  up  the  evidence  for  the  prosecu- 
tion and  defence  and  laying  down  the 
law  by  which  the  Jury  are  to  be! 
guided.  The  object  of  a  summing  up  under 
that  section  is  to  enable  the  Judge  to  place 
before  the  Jury  the  facts  and  circumstances 
of  the  case  both  for  and  against  the  prosecu- 
tion so  as  to  help  them  in  arriving  at  a 
right  decision  upon  the  points  which  arise 
for  their  consideration.  If  that  be  the  object 
with  which  s.  297  of  the  Cr.  P.  C.  was  enact* 
ed  I  must  say  that  in  this  particular  case 
that  object  has  not  been  fulfilled  but  rather 
frustrated  by  the  way  in  which  the  learned 
Judge  charged  the  Jury.  The  headsof  charge 
recorded  by  the  learned  Judge  read  more 
like  a  judgment  or  a  speech  of  a  prosecut- 
ing  Counsel  than  a  summing  up  of  the  case 
as  required  under  the  law.  Even  as  a  judg- 
ment it  lacks  in  sobriety  and  there  is  in  it 
a  want  of  a  judicial  equanimity  which  is  the 
very  essence  of  a  judgment  in  a  trial.  As  a 
speech  of  a  prosecuting  Counsel  it  is  open  to 
the  comment  that  it  uses  language  which  in 
some  instances  may  be  said  to  overstep  the 
legitimate  bounds  of  advocacy. 

I  refer  to  a  few  instances  only.  In  deal- 
ing with  the  witnesses  who  are  snid  to  have 
deposed  in  connection  with  the  occurrence 
that  took  place  at  the  Trimohini  Railway 
Station  the  learned  Judge  told  the  Jury 
that  those  witnesses  had  acted  selfishly  ana 
were  morally  and  legally  and  on  their  own 
showing  guilty  of  abetting  a  villanous  crime 
and  that  in  his  experience  he  had  never 
come  across  a  more  contemptible  pair  of 
cowards  or  one  more  selfishly  deaf  to  the 
common  claims  of  humanity.  This  is  not 
my  language  but  the  language  of  the  learn- 
ed Judge.  The  learned  Judge  chnrn-eterte- 
ed  Banamali  and  Biseswar  while  narrating 
what  they  did  at  the  Gaibandha  Railway 
Station  as  a  precious  pair  of  poltroons,  the 
evidence  of  the  Sub-Aoristaut  Surgeoo,  of 


KfllJIRDDDIN  V,  EMPEROR. 


{9210.1926] 

Gaibandha  as  shilly-shallying  evidence,  and 
,as  the  evidence  of  a  witness  ^ho  showed  a 
more  than  usual  tendency  to  hedge  and  play 
forsafety  in  giving  hisopinion.  When  putting 
the  evidence  of  the  Sub  Assistant  Surgeon 
in  contrast  with  that  of  the  Sub-Divisional 
Magistrate  he  exhorted  them  with  an  amount 
of  vigour  which  is  apparent  on  the  face  of 
the  charge:  he  told  them  that  it  would  not  be 
difficult  for  them  to  decide  which  of  the  two 
opinions  was  the  more  entitled  to  respect. 
This  is  not  all.  The  learned  Judge  pre- 
sented too  forcibly  before  the  Jury  those 
aspects  of  the  defence  case  which  would 
appeal  to  them  as  most  revolting.  The 
defence  which  the  appellants  had  seriously 
put  forward  before  the  Court  was  unques- 
tionably worthy  of  consideration  whatever 
might  have  been  its  worth.  The  learned 
Judge  told  the  Jury  that  if  they  were  to 
give  effect  to  the  defence  put  forward  by 
Khijiruddin  they  would  have  to  hold  that 
the  girl  had  done  an  act  which  was  doubly 
bigamous  and  adulterous  and  which  was  in 
defiance  of  law,  custom,  religion  and  mora- 
lity. A  part  of  the  defence  of  the  appellant 
No.  1  was  characterized  as  having  been 
rather  mistily  adumbrated.  When  referr- 
ing to  the  fact  that  there  was  no  evidence 
in  support  of  the  defence  which  the  appel- 
lant No.  1  had  taken  to  the  effect  that  he 
had  been  married  to  the  girl  the  learned 
Judge  instead  of  telling  the  Jury  that 
it  is  no  part  of  the  duty  of  the  accused 
person  to  adduce  any  evidence  in  his 
defence  if  he  does  not  wish  to  do  so  and 
that  the  Jury  were  not  entitled  to  draw  any 
inference  from  this  omission  on  the  part  of 
the  accused,  went  on  asking  them  to  take 
ipto  their  serious  consideration  the  fact  that 
the  defence  had  not  suggested  any  answer 
to  some  of  the  prosecution  arguments  and 
that  they  had  not  given  any  evidence.  He 
called  the  Policemen  who  are  said  to  have 
been  with  the  appellant  No.  3  his  henchmen 
and  throughout  the  charge  referred  to  the 
acts  alleged  to  have  been  done  by  the  appel- 
lants as  partaking  of  the  character  of  cri- 
minal acts.  He  asked  the  Jury  to  consider 
whether  the  version  given  by  the  defence 
was  one  that  a  person  of  ordinary  prudence 
and  sanity  could  reasonably  accept  as  true. 
It  is  unnecessary  to  refer  to  other  passages  of 
the  learned  Judge's  charge  to  the  Jury;  but, 
as  J  have  already  said,  if  the  object  of  summ- 
ing up  is  to  assist  the  Jury  in  arriving  at  their 
decision  this  charge  instead  of  helping  them 
informing  their  own  decision  impressed 


445 


the  Judge's  conclusions  indelibly  on  their 
minds  and  gave  them  no  option  but  to 
arrive  at  a  decision  which  the  Judge  him- 
self had  arrived  at,  namely,  that  the  accused 
were  guilty  and  that  there  was  no  substance 
in  the  defence  put  forward  by  them.  The 
learned  Judge  found  the  facts  for  the  Jury 
and  made  a  laboured  attempt  in  order  to 
persuade  them  to  accept  his  conclusions  as 
correct. 

Turning  now  to  the  points  which  have 
been  specifically  taken  on  j>ehalf  of  the 
appellants  there  are  some  which  deserve 
special  mention. 

The  first  objection  taken  to  the  trial  held 
is  to  the  effect  that  evidence  had  been  admit- 
ted which  was  not  admissible  in  law.  This 
objection  relates  to  three  different  matters. 
The  first  item  to  which  this  objection  relates 
is  with  regard  to  Exs.  13  and  13- A.  Exhibit 
13  is  the  evidence  of  prosecution  witness 
No.  11,  Jogesh  Chandra  De  as  given  before 
the  Assistant  Sessions  Judge  in  a  previous 
trial  of  appellants  Nos.  1  and  2  the  subject- 
matter  of  which  trial  was  the  two  earlier 
occurrences  of  abduction,  namely,  the  one 
which  took  place  at  Gaibandha  and  the 
other  which  took  place  at  the  Trimohini 
Railway  Station.  Exhibit  13-A  is  the 
deposition  of  the  same  witness  before 
the  Committing  Magistrate  in  the  course 
of  the  commitment  enquiry  prelimi- 
nary to  the  said  trial.  The  circumstances 
under  which  these  two  depositions  came 
to  be  admitted  in  the  present  trial  are 
these  :  In  the  course  of  his  evidence  in 
the  present  trial,  the  witness  made  a  state- 
ment to  the  effect  that  at  a  time  when  Khiji- 
ruddin asserted  that  he  had  lawfully  marri- 
ed Suhasini,  the  latter  remained  silent. 
This  the  witness  said  in  his  examination- 
in-chief.  The  accused  declined  to  cross- 
examine  him.  Thereupon  certain  questions 
were  put  to  this  witness  by  the  Foreman  of 
the  Jury.  Thereafter  the  prosecution  again 
examined  this  witness-in-chief  and  in  the 
course  of  this  further  examination  questions 
were  put  to  the  witness  by  the  prosecution 
in  order  to  bring  out  the  fact  that  in  his 
depositions  as  given  before  the  Assistant 
Sessions  Judge  in  the  previous  trial  as  also 
before  the  Committing  Magistrate  in  the 
commitment  enquiry  which  preceded  that 
trial  he  had  made  statements  which  would 
go  to  show  that  the,  girl  was  trembling,  ob- 
viously meaning  that  even  if  she  had  a 
desire  to  protest  it  was  not  possible  for  her 
to  do  so  in  the  circumstances  in  which  she 


44* 

was  at  the  time.  The  learned  Judge  allow- 
ed these  questions,  which  were  questions  in 
the  nature  of  cross-examination,  to  be  put 
to  the  witness.  After  these  questions  had 
been  answered  the  prosecution  was  per- 
mitted to  put  in  the  depositions  of  this 
witness  to  which  I  have  referred  and  they 
were  marked  as  Exs.  13  and  13-A  in  the  case. 
The  learned  Counsel  appearing  on  behalf 
of  the  Crown  urges  that  the  reception  of 
this  evidence,  even  if  it  be  held  that  it  was 
inadmissible,  did  not  prejudice  the  accused 
persons.  With  this  argument  I  am  unable 
to  agree.  The  accused^undoubtedly  must 
have  been  prejudiced  and  for  two  reasons. 
When  a  witness  who  has  been  called  by  the 
prosecution  is  permitted  to  be  cross-examin- 
ed on  behalf  of  the  prosecution  under  the 
provisions  of  s.  154  of  the  Evidence  Act, 
the  result  of  that  course  being  permitted 
is  to  discredit  that  witness  altogether  and 
not  merely  to  get  rid  of  a  part  of  his 
testimony.  [Lord  Campbell, C.  J.,  in  Faulk- 
wer  v.  Brine  "(I)]-  This  has  been  held  in 
a  good  number  of  cases  in  this  country  as 
well,  amongst  which  reference  may  be 
made  to  two,  namely,  the  case  of  Luchiram 
Motilal  v.  Radha  Charan  Poddar  (2)  and  the 
case  of  Emperor  v.  Satyendra  Kumar  Dutt 
Chowdtiury  (3).  The  net  result  of  allowing 
these  questions  to  be  put  by  the  prosecution 
was  to  deprive  the  accused  of  the  benefit 
which  might  accrue  to  them  from  any  state- 
ment which  the  witness  might  have  made 
in  favour  of  the  accused  and  which  the 
defence  could  have  availed  of  if  the  witness 
had  not  been  allowed  to  be  cross-examined 
by  the  prosecution.  For  this  reason  the 
law  has  enacted  that  the  party  desiring 
to  cross-examine  its  own  witness  has  to  take 
the  permission  of  the  Court,  implying 
thereby  that  there  is  a  discretion  in  the 
Court  whether  it  would  permit  the  witness 
to  be  cross-examined  or  not.  That  discre- 
tion has  always  to  be  exercised  with  cau- 
tion by  the  Court  before  which  the  matter 
cornes  up  for  consideration.  In  this  in- 
stance it  does  not  appear  that  any  permis- 
sion was  sought  for  or  was  given.  The 
result  of  the  procedure  adopted  was  to  de- 
prive the  accused  of  the  benefit  of  any 
statement  which  the  witness  may  have  made 
in  their  favour.  That  is  one  of  the  reasons 

(1)  (1858)  1  F.  &  P.  254. 

2  66  Ind.  Gas.  15;  34  C.  L.  J.  107;  49  0.  93;  (1922) 
A.  I.  R.  (0.)  267. 

(3)  71  Ind.  Cas.  657;  27  C.  U  J.  173;  24  Or.  L.  J.  193; 
(1923)  A.  I  R.  (C.  463 


•0.  tiMPBfeOtL  [J)2  t.  0. 

why  this  procedure  should  not  have  been 
allowed,  If,  however,  this  was  not  the  in- 
tention of  the  prosecution  but  their  only 
object  was  to  show  that  the  witness  had 
merely  omitted  to  mention  the  fact  in  the 
present  trial  but  had  spoken  about  it  con- 
sistently before  and  should,  therefore,  be 
relied  upon,  then  it  amounts  to  this  that  they 
wanted  to  get  rid  of  a  part  of  the  testimony 
of  the  witness  and  were  relying  upon  the 
earlier  statement  as  a  piece  of  substantive 
evidence  in  the  case  which  however  they 
cannot  be  permitted  to  do.  The  earlier 
statements^ cannot  be  let  in  under  s.  157  of 
the  Evidence  Act  as  there  is  nothing  in  the 
deposition  of  the  witness  in  the]  present 
trial  which  may  be  corroborated  by  these 
earlier  statements.  Moreover  there  is  hardly 
any  justification  for  the  whole  of  the  de- 
positions being  brought  as  evidence  in  the 
present  record,  and  the  Jury  were  not  direc- 
ted as  to  how  they  were  to  deal  with  this 
evidence.  It  is  true,  as  the  learned  Counsel 
for  the  Crown  has  urged  that  there  is 
enough  other  evidence  which  if  believed 
would  indicate  that  there  was  no  marriage 
between  the  appellant  No.  1  and  the  girl. 
But  that  is  a  matter  as  to  the  weight  of  evi- 
dence which  does  not  concern  us,  nor  it  did 
concern  the  learned  Judge.  It  was  a  matter 
entirely  for  the  Jury. 

The  next  item  to  which  this  objection 
relates  is  Ex.  14  which  is  the  deposition  of 
Suhasini  given  by  her  in  the  trial  before 
the  Assistant  Sessions  Judge.  The  learned 
Counsel  appearing  on  behalf  of  the  Crown 
urges  that  in  view  of  the  cross-examination 
of  Suhasini  it  was  necessary  for  the  prosecu- 
tion to  put  this  evidence  in.  White  lean  see 
that  it  was  necessary  for  the  prosecution  to 
put  in  particular  passages  from  out  of  this 
deposition  in  order  to  rebut  the  sugges- 
tions which  were  being  made  on  behalf  of 
the  defence  that  certain  statements  which 
were  made  in  the  present  trial  had  not  been 
made  by  the  witness  in  the  previous  trial, 
I  do  not  see  why  it  would  be  necessary  to 
put  the  whole  of  the  deposition  of  the 
witness  as  given  in  the  previous  trial  for 
the  purpose  of  corroborating  the  witness 
in  the  evidence  which  she  has  given  in  the 
present  trial.  If  it  be  that  any  suggestion 
was  made  in  the  course  of  the  cross-exami- 
nation to  the  effect  that  the  witness  had 
made  a  particular  statement  in  the  previous 
trial  which  as  a  matter  of  fact  the  witness 
did  not  make  in  that  trial  and  that  sugges* 
tion  was  not  correct,  the  proper  course  for 


S  I.  0.  19^6] 


KHIJIRUDDIN  V. 


44? 


the  learned  Judge  was  to  have  disallowed 
the  question.  The  whole  of  the  deposition 
is  sometimes  admitted  for  the  sake  of 
convenience.  But  the  whole  of  the  deposi- 
tion cannot  be  used  for  any  purpose  in 
connection  with  a  matter  like  this  and 
only  particular  passages  which  are  relevant 
may  be  used  by  the  Jury.  It  does  not  how- 
ever appear  whether  the  whole  of  the  depo- 
sition as  contained  in  Ex.  14  was  read  out 
to  the  Jury  or  not  and  I  am,  therefore,  riot 
in  a  position  to  say  how  far  the  reception 
of  this  deposition  as  evidence  has  prejudic- 
ed the  accused  persons. 

The  third  objection  under  this  head 
relates  to  the  statement  recorded  by  the 
Sub-Divisional  Magistrate  in  the  course  of 
the  enquiry  which  he  held  on  receipt  of 
the  anonymous  letter.  The  point  urged  on 
behalf  of  the  defence  in  this  connection  is 
that  Exs.  5fcnd6the  statements  made  by 
Krishna  Das  Banik  and  Jogesh  Chandra  De 
recorded  by  the  Sub-Divisional-Magistrate 
were  inadmissible  in  evidence  in  the  pre- 
sent trial.  The  learned  Counsel  for  the 
Crown  has  urged  that  these  statements 
were  recorded  by  an  authority  competent 
to  investigate  into  the  facts  and  they  could 
be  admitted  under  the  provisions  of  s.  157 
of  the  Indian  Evidence  Act.  I  do  not  see 
any  particular  objection  to  these  statements, 
although  I  must  say  that  the  learned  Judge 
should  have  either  at  the  time  when  these 
statements  were  admitted  or  when  charging 
the  Jury  told  them  definitely  the  purpose 
for  which  these  statements  were  admitted 
in  the  case. 

The  second  ground  urged  on  behalf  of 
the  appellants  is  to  the  ettect  that  the  state- 
ment of  Suhasini  made  by  her  on  the  7th 
of  April  1924,  before  the  Sub-Divisional 
Magistrate  and  which  has  been  marked  in 
the  present  trial  as  Ex.  4  in  the  case  was 
not  brought  to  the  notice  of  the  Jury  by  the 
learned  Judge  in  the  course  of  this  Oum- 
ming  up.  This,  in  my  opinion,  is  a  serious 
omission.  In  that  statement  is  to  be  found 
the  earliest  version  of  the  occurrence  as 
given  by  Suhasini,  and  it  was  obligatory  on 
-the  part  of  the  learned  Judge  to  draw  the 
attention  of  the  Jury  to  that  statement  so 
that  they  might  judge  whether  the  case  as 
against  the  appellant  No.  3  particularly 
and  probably  the  case  against  the  other 
appellants  as  well  had  not  been  developed 
gradually  and  whether  facts  and  circum- 
stances were  subsequently  alleged  against 


them  which  had  not  been  stated  by  the 
witness  in  her  first  statement  before  the 
Sub  Divisional  Magistrate.  The  learned 
Counsel  for  the  Crown  has  urged  that  even 
before  the  girl  made  her  statement  before 
the  Sub-Divisional  Magistrate  there  were 
other  materials  existing  from  before  in 
which  it  was  mentioned  that  all  the  accus- 
ed persons  were  concerned  in  the  offence, 
e.  <?.,  the  anonymous  letter  Ex.  1  which  the 
Magistrate  had  received  on  the  30th  March 
1924.  He  has  also  drawn  our  Attention,  to 
the  other  pieces  of  evidence,  for  instance 
ths  evidence  of  the  Sub-Divisional  Officer, 
and  the  evidence  of  Bisseswar  prosecution 
witness  No.  7  and  of  the  girl  herself  which, 
if  believed,  would  go  to  show  that  the 
present  story  of  the  girl  was  the  story  given 
to  the  authorities  before  there  was  any 
chance  of  the  girl  being  tutored.  That 
may  be  so,  but  then  it  was  a  matter  entire- 
ly for  the  Jury  to  consider  and  the  accused 
had  a  right  that  this  piece  of  evidence, 
Ex.  4,  which  was  in  their  favour  was  pro- 
peily  placed  before  the  Jury  in  order  that 
they  might  have  given  it  a  proper  considera- 
tion. The  earliest  version  of  the  occurrence 
as  given  by  an  informant  or  prosecutrix  who 
is  the  principal  witness  to  the  occurrence, 
and  on  whose  testimony  practically  the 
whole  case  depends,  has  always  to  be  placed 
before  the  Jury  in  order  to  judge  of  the 
truth  or  falsity  of  the  prosecution  case. 

The  third  objection  relates  to  a  still  more 
serious  matter.  The  father  of  the  girl  Bono- 
mali  was  not  examined  as  a  witness  in  the 
case.  His  son-in-law,  P.  W.  No.  7,  Biswes- 
war,  in  the  course  of  his  examination-in- 
chief  was  allowed  to  state  that  he  and  his 
father-in-law,  Bonomali,  were  in  the  station 
platform  when  the  voice  of  the  accused 
Nos.  1  and  2  or  rather  of  some  persons  was 
heard.  Bonomali  got  up  hurriedly  and 
said  "Bisweswar,  destruction  has  come 
about.  Those  ruffians  Ayho  a  year  ago  took 
away  Suhasini  have  again  come.  Let  us  be 
off,  caste  and  honour  are  at  stake."  Al- 
though Bonomali  was  not  examined  as  a 
witness,  through  the*  mouth  of  P.  W.  No.  7 
this  statement  was  brought  on  the  record. 
The  learned  Counsel  for  the  Crown  says 
that  this  evidence  is  relevant  under  the 
provisions  of  ss.  6  and  8  of  the  Evidence 
Act— -under  s.  6  of  the  Evidence  Act  as 
part  of  the  res  gestce,  and  under  s.  8  of  the 
Evidence  Act  as  explaining  the  conduct  of 
Bisweswar  iu  his  leaving  the  place  and  run- 
ning away  withBonomali,  I  am  of  opinion 


448 


KHI JIBUDDIN  V.  EMPEROR. 


that  the  statement  is  whollydnadmissible 
and  that  neither  s.  6  nor  8.  8  of  the  Evidence 
Act  would  justify  the  reception  of  this  evi- 
dence. What  Bonomali  told  at  lLe  time  of 
the  occurrence  in  respect  of  the  occurrence 
itself  is  res  gestcz  under  s.  6  of  the  Evi- 
dence Act.  But  his  statement  which  wets 
with  regard  to  an  event  which  took  place  a 
year  ago  and  which  was  meant  to  convey 
that  the  accused  persons  who  were  there  had 
taken  away  Suhasini  by  force  a  year  ago 
would  not  be  part  of  res  gestcz  but  related 
to  an  altogether  different  transaction  sepa- 
rated by  a  sufficiently  long  interval  of  time 
and  by  no  stretch  of  imagination  would  the 
area  of  events  which  may  be  taken  as  cover- 
ing the  res  gestce  of  the  present  occurrence 
extend  to  what  happened  in  the  earlier 
occurrence.  Section  6  of  the  Evidence  Act, 
therefore,  would  not  help  the  prosecution. 
As  regards  s.  8  of  the  Evidence  Act  I  am 
exceedingly  doubtful  whether  the  conduct 
of  Bisweswar  was  a  relevent  fact  in  the  pre- 
sent trial,  but  assuming  that  it  was,  any 
statement  made  by  Bonomali  which  would 
affect  the  conduct  of  Bisweswar  when  Bono- 
mali was  not  examined  would  be  purely 
hearsay  evidence  and  would  not  come 
under  s.  8  of  the  Evidence  Act.  I  am  clear- 
ly of  opinion  that  the  reception  of  this 
evidence  prejudiced  the  accused  very 
seriously,  for  although  Bonomali  was  not 
a  witness,  we  have  on  the  record  a  state- 
ment of  Bonomali  which  contradicts  and 
gives  a  direct  denial  to  the  main  defence 
of  the  appellants  which  is  to  the  effect  that 
the  girl  had  been  made  over  by  Bonomali 
to  the  appellant  No.  llandhad  been  married 
to  him.  Even  if  there  was  nothing  else  in 
the  case  and  if  this  was  the  only  objection 
taken  on  behalf  of  the  appellants  I  should 
have  been  prepared  to  upset  their  convic- 
tions. 

The  fourth  objection  relates  also  to  a 
matter  of  similar  importance.  It  is  to  the 
effect  that  the  personal  diary  of  the  Sub- 
Inspector  the  appellant  No.  3  which  was 
proved  by  the  prosecution  and  marked  as 
Ex.  10 in  the  case  was  not  put  before  the  Jury 
at  all  by  the  learned  Judge.  This  diary, 
it  is  said  by  the  prosecution,  contains  an 
interpolation  and,  therefore,  is  a  piece  of 
evidence  which  if  put  before  the  Jury  might 
have  gone  against  the  defence.  Assuming 
for  a  moment  that  there  is  an  interpolation 
in  that  diary  and  that  an  inference  adverse 
to  the  appellant  No.  3  maybe  drawn  from 
what  interpolation,  still  according  to  the 


[92  I.  0. 1926] 

case  for  the  defence  the  diary  contains 
statement  recorded  by  the  Sub  Inspector 
of  his  own  movement  and  conduct  in  con- 
nection with  this  case  recorded  at  a  time 
when  there  was  not  the  slightest  indication 
that  any  case  would  be  started  against  him 
with  regard  to  the  occurrence.  The  Sub- 
Inspector  might  well  say  that  this  diary 
contains  a  true  account  of  what  he  had 
done  on  that  occasion.  It  was  absolutely 
necessary  for  the  learned  Judge,  if  he 
wanted  to  put  before  the  Jury  the  facts  and 
circumstances  in  favour  of  the  defence,  as 
he  should  have  done,  to  place  the  personal 
diary  of  the  Sub -Inspector,  Ex.  10,  before 
the  Jury.  The  fact  that  the  prosecution 
challenged  the  authenticity  of  that  diary 
as  containing  an  interpolation  and  that 
they  pointed  out  other  circumstances  which 
might  indicate  that  it  should  not  be  relied 
upon  did  not  jusify  the  learned  Judge  in 
withholding  it  entirely  from  the  Jury.  A 
verdict  obtained  from  the  Jury  without 
placing  before  them  this  important  piece 
of  evidence  in  favour  of  the  defence,  what- 
ever may  have  been  its  real  worth,  cannot, 
in  my  opinion,  possibly  be  sustained. 

The  next  objection  relates  to  the  way  in 
which  the  learned  Judge  has  recorded  in 
his  charge  to  the  Jury  as  to  how  he  had 
explained  the  law,  The  learned  Judge 
states  in  the  heads  of  charge  that  he  ex- 
plained certain  sections  of  the  Indian 
Penal  Code.  But  there  is  nothing  to  indi- 
cate what  he  stated  to  the  Jury  or  how  he 
explained  the  different  elements  constitut- 
ing the  offences.  It  is  urged  on  behalf  of 
the  prosecution  that  in  the  heads  of  charge 
it  is  not  necessary  for  the  learned  Judge  to 
record  in  full  what  he  actually  told  the 
Jury  and  that  furthermore  the  sections  of 
the  Indian  Penal  Code  under  which  the 
accused  persons  were  tried  were  not  so  com- 
plicated as  to  necessitate  a  record  of  what 
the  learned  Judge  might  have  said  to  the 
Jury  in  explaining  the  law.  It  is  true  that 
it  is  not  in  every  case  that  the  Judge  is 
bound  to  state  in  his  charge  how  he  ex- 
plained the  law  to  the  Jury.  But  in  a 
series  of  decisions  of  this  Court  it  has  been 
laid  down  that  the  charge  must  be  recorded 
in  such  a  way  as  would  enable  this  Court 
sitting  as  a  Court  of  Appeal  to  judge  whe- 
ther the  facts  and  circumstances  of  the  case 
had  been  properly  placed  before  the  Jury 
and  also  whether  the  law  has  been  correct- 
ly explained.  I  shall  refer  to  a  few  of  such 
cases.  One  of  them  is  the  case  of  Panchv* 


[0?  I  0.  1926]  KHIJIBUDPIN  V. 

fyas  v.  Emperor  (4)  where  it  has  been 
laid  down  that  it  is  not  only  desirable 
but  necessary  that  the  charge  should  be 
recorded  in  an  intelligible  form  and  with 
snffipient  fulness  to  satisfy  the  Appellate 
Court  that  all  points  of  law  arising  in  the 
case  were  clearly  and  correctly  explained 
to  the  Jury.  Reference  may  also  be  made 
to  the  case  of  Abbas  Peada  v.  Queen- 
Empress  (5)  and  the  case  of  Hemanta 
Kumar  Pathak  v.  Emperor  (6).  In  the  pre- 
sent case  tvhere  there  was  a  charge  under 
s.  120  B  of  the  Indian  Penal  Code  and  there 
Was  -a  question  as  to  the  -bona  fides  or  other* 
wise  on  the  part  of  the  appellant  No.  3 
as  also  various  other  questions  of  fact  it 
was  absolutely  necessary  to  record  the 
charge  in  such  a  way  as  would  have  enabled 
this  Court  to  ascertain  whether  the  law  has 
been  properly  explained  to  the  Jury  or  not 
in  relation  to  the  facts  of  this  particular 
case  and  also  whether  the  facts  in  so  far  as 
they  bear  upon  the  elements  necessary  to 
constitute  ,  the  offences  were  properly 
explained  to  the  Jury  or  not. 

The  next  objection  relates  to  the  pro- 
cedure that  was  adopted  by  the  learned 
Judge  under  the  provisions  of  .8.  73  of  the 
Evidence  Act.  It  appears  that  certain 
letters  were  produced  on  behalf  of  the 
defence  and  it  was  alleged  on  behalf  of 
the  defence  that  these  letters  were  written 
by  the  girl  Suhasini.  The  letters  were  not 
proved  as  having  been  written  or  signed  by 
Suhasini.  The  defence  thereupon  asked 
the  learned  Judge,  to*  proceed  under  the 
provisions  of  s.  73  of  the  Evidence  Act  and 
to  have  the  handwriting  of  the  "girl  taken 
in  Court  so  that  the  writing  in  the  letters 
might  be  compared  with  the  handwriting 
of  the  girl  taken  in  Court  and  also  with  her 
admitted  ,or  proved  writings  and  signa- 
tures. This  procedure  was  adopted  by  the 
learned  Judge.  But  from  the  two  orders 
which  tlie  learned  Judge  recorded,  one  on 
ttie  4tE  of  H$rch  191*5  and  the  other  on  the 
5th  March  1925  it  appears  that  all  that 
w^s  placed'  before  the  Jury  were  the  signa- 
tiir^s  XML  the  girl  as  contained  in  those 
letters  anql  gome  admitted  signatures  of 
hers.  It  does  not  at  all  appear  whether 
the  Jury  were  asked  to  compare  the  hand- 
writing of  the  girl  as  alleged  to  have  been 

4)  34  0.  698;  11  C.  W.  N.  666;-  5  Or.  L  J.  427. 
)  25  0.  788;  2  0.  W.  N.   484;    13  Ind.   Dec.  (N.  s.) 

Irid.  Oas.  455;  47  0.  46;  30  0.  L.  J.  29;  21  Or, 

29 


Jj,  J, 


EMPEROR.  449 

contained  in  the  letters  with  what  she  had 
written  in  Court  under  the  Court's  direction. 
The  learned  Counsel  appearing  on  behalf 
of  the  Crown  urged  that  so  long  as  the 
letters  were  not  proved  it  would  not  have 
been  proper  for  the  learned  Judge  to  have 
put  these  letters  before  the  Jury  and  the 
question  whether  the  letters  were  admissible 
or  not  was  a  question  for  the  Judge  and 
not  for  the  Jury  to  decide  and  inasmuch  as 
the  learned  Judge  thought  that  it  had  not 
T?een  proved  that  the  letters  had  been 
written  by  the  girl  it  was  not  necessary  for 
him  to  place  those  letters  before  the  Jury 
in  order  to  get  their  opinion  whether  the 
letters  were  written  by  the  girl  or  not. 
With  all  deference  to  the  arguments  of  the 
learned  Counsel  in  this  respect  I  am  not 
prepared  to  agree  with  this  contention  of 
his.  The  defence  in  order  to  use  these 
letters  as  evidence  in  their  favour  had  to 
prove  that  the  letters  had  been  written  by 
the  girl.  For  this  purpose  they  could  rely 
upon  expert  evidence  under  s.  45  of  the 
Evidence  Act  or  the  opinion  of  a  com- 
petent witness  under  s.  47  of  the  Act  or 
direct  comparison  of  the  letters  with  proved 
or  admitted  documents  under  s.  73  of  the 
Act.  This  comparison  has  to  be  made  by 
the  Court  or  by  a  witness  called  for  the 
purpose.  If  the  defence  had  succeeded  in 
proving  by  other  evidence  that  the  letters 
had  actually  been  written  by  the  girl  there 
was  no  point  in  making  the  comparison.  It 
is  only  where  such  evidence  is  not  available 
and  where  although  the  handwriting  in  the 
letters  had  not  been  proved  by  independent 
evidence  to  have  ^een  the  handwriting  of 
the  girl  that  it  is  necessary  to  have  recourse 
to  the  provisions  of  s.  73  of  the  Evidence 
Act  to  see  whether  by  comparison  it  can 
be  determined  whether  the  letters  were 
written  by  the  gill  or  not.  The  issue  before 
the  Court  ia  a  case  like  this  is  whether  the 
girl  had  written  the  letters.  Taylor  in  his, 
Book  on  Evidence  says— "It  further  appears 
that  any  person  whose  handwriting  is  in 
dispute,  and  who  is  present  in  Court,  may 
be  required  by  the  Judge  to  write  in  hie 
presence,  and  that  such  writing  may  be 
compared  with  the  document  in  question. 
Moreover  in  all  cases  of  comparison  of 
handwriting  the  witnesses,  the  Jury 
and  the  Covirt  may  respectively  eier- 
cise  their  judgment  on  the  resemblance 
bf  the  writings' produced,  with  respect  to 
the  general  character  of  the  handwring,  the 
of  ths  tabto**,  the  orthography  of 


450 


MANl  ,V.  HANS  RAW. 


1.  0. 


wojxls  and  the  style  of  the  composition  and 
also  •  on  the  fact  of  one  or  more  of  the 
documents  being  written  in  a  feigned 
hand,"  .The  result  of  tliis  comparison  is  the 
determination  of  an  issue  arising  in  the 
case  and  is  quite  distinct  from  the  deter- 
mination of  the  question  of  admissibility 
or  otherwise  of  evidence,  which  latter  is 
within  the  province  of  the  Judge  alone. 
Therefore,  the  learned  Judge  in  not  placing 
before  the  Jury  and  in  not  asking  them  to 
compare  with  the  writing  in  the  letters  the 
handwriting  taken  in  Court  omitted  to  give 
the  accused  persons  an  opportunity  of 
getting  an  opinion  of  the  Jury  on  the  ques- 
tion as.  to  whether  the  letters  were  really 
written  by  the  girl  or  not. 

A  further  objection  appears  on  the  face 
of  the  charge  and  that  is  to  the  effect  that 
although  there  were  three  accused  persons 
and  the  case  as  against  all  the  three  did 
not  stand  on  the  same  footing  the  learned 
Judge  nowhere  asked  the  Jury  to  consider 
the  case  as  against  each  ofj  the  accused 
individually.  This,  in  my  opinion,  is  also  a 
very  serious  omission  and  is  likely  to  have 
prejudiced  the  accused  persons,  having 
regard  to  their  defences  which  were  not 
similar  but  different. 

These  are  some  of  the  more  important 
objections  which  have  been  taken  to  the 
learned  Judge's  charge  to  the  Jury  in  this 
case,  and  in  the  face  of  these  objections  I 
am  not  prepared  to  hold  either  that  the 
accused  had  a  fair  trial  or  that  there  was  a 
proper  summing  up.  In  my  opinion,  there- 
fore, the  verdict  of  the  Jury  should  be  set 
aside  and  the  convictions  of  and  the  sen- 
tences passed  upon  the  appellants  on  the 
basis  of  that  verdict  should  also  be 
quashed. 

The  question  then  arises  as  to  whether 
there  should  be  a  re-trial  of  this  case  or  not. 
The  learned  Counsel  appearing  on  behalf 
of  the  appellant  No.  3  has  strenuously  urged 
Jhat  in  view  of  certain  facts  which  he  has 
placed  before  us  and  also  of  certain 
circumstances  which  may  lend  support  to 
his  argument  to  the  effect  that  the  appel- 
lant No.  3  acted  bona  fide  it  is  not  necessary 
for  us  to  send  the  case  back  for  re-trial  at 
least  so  far  as  the  appellant  No.  3  is  con- 
cerned. We  have  carefully  considered  the 
matter.  We  do  not  express  any  opinion  on 
the  merits  of  the  case  but  in  view  of  the 
evidence  on  the  record  we  are  not  prepared 
to  say  that  this  is  a  case  in  which  we  can 
substitute  our  own  opinion  for  the  verdict 


of  the  Jury  and  we  accordingly  order  that 
the  case  against  all  the  three  accused  should 
be  tried  again, 

A  further  question  then  arises  and  that  is 
as  to  where  the  case  should  be  tried.  It  is 
quite  clear  that  in  view  of  the  nature  of  the, 
case,  the  allegations  made  on  behalf  of  the 
respective  parties,  the  length  of  time  that 
has  elapsed  since  the  case  was  instituted, 
the  fact  that  the  case  has  been  widely  talked 
about  and  has  been  discussed  in  the  columns 
of  newspapers  and  that  there  has  been  some 
agitation  over  the  case  in  certain  quarters, 
an  atmosphere  of  prejudice  has  been 
created  locally  and  possibly  in  some  of  the 
neighbouring  districts.  It  is,  therefore, 
highly  desirable  that  the  case  should  be 
tried  elsewhere  that  at  Kangpur  in  order 
that  the  accused  should  have  a  fair  and 
impartial  trial.  The  accused  persons  desire 
that  the  case  be  tried  at  Dinajpore  and  we 
think  that  it  would  be  right  to  accede  to 
their  prayer  in  this  respect.  We  accordingly 
direct  that  the  re-trial  ordered  above  do  take 
place  in  the  Court  of  Sessions  at  Dinajpur. 

The  accused  will  remain  on  bail  pending 
their  re-trial. 

Cuming,  J.—I  agree. 

z.  K.     Appeal  allowed:  Re-trial  ordered. 


ALLAHABAD  HIGH  COURT. 

CKIMJNAL  REVISION  No.  635  OF  1925. 

November  24,   1^25. 

Present: — Mr.  Justice  Daniels. 

RATAN  MAN! — ACCUSED — APPLICANT 

versus 
HANS  RAM  AND  OTHEKS—  OPPOSITE  PART?. 

Criminal  Procedure  Code  (ActrV  of  1S9S),  8.  209- •* 
]ruiuiiy  before  commitment — Discharge  of  accused — 
Subsidiary  witnesses  not  examined,  effect  of. 

When  a  Committing  Magistrate  finds  that  tho 
prosecution  evidence  is  totally  unwoithy  of  credit  it 
is  his  duty  to  discharge  the  accused.  *  [p,  451,  col,  1J 

Where  all  the  material  evidence  has  been  heard  and 
disbelieved,  an  order  of  dischaige  passed  by  a  Com- 
mitting Magistrate  should  not  be  set  aside  merely 
because  there  were  one  or  two  subsidiary  witnesses 
who  might  have  been  called  but  whose  evidence  was 
not  recorded,  [ibid.] 

Oimiual  revision  against  an  order  of  the 
District    Magistrate,     Almoia,    dated    the 
20th  of  August  1925. 
Mr.  S.  B.  Johari,  for  the  Applicant, 
JUDGMENT.— This  is  au  application 
for    revision  of    au  order  discharging  the 


[92 1.  0. 1 


bHOLA  V.  EMPEROR. 


4§1 


accused  in  a  charge  triable  by  the  Sessions 
Court.  An  application  in  revision  was  made 
to  the  District  Magistrate  who  rejected  it. 
The  history  of  the  case  is  this.    The  Magis- 
trate who  heard  it  after  hearing  witnesses 
under     s.    202    originally    came    to     the 
conclusion  that  the  complaint   was  ground- 
less and    dismissed   it    under    s,    203,  Or. 
P.  C.    On    application  being  made  to  him 
the  District  Magistrate  directed  a   further 
inquiry,  The  Deputy  Magistrate  then  made 
a  full  inquiry  and  after  examining  witnesses 
at  length  and  taking  the  statements  of  the 
accused  again  came  to  the  conclusion  that 
the  charge  was  false.    He  accordingly    dis- 
charged   the  accused.    It  is  said  that  in 
doing  so  he  was  usurping  the  functions  of 
the  Sessions  Judge,  but  even  in  the  author- 
ity relied    on    by  the  applicant,  namely, 
In  re  Bai  Parvati   (1)   it  is  laid  down  that 
when    a  Committing  Magistrate  finds  that 
the  prosecution    evidence  is    totally    un- 
worthy of  credit  it  is  his  duty  to  discharge 
the  accused  The  ruling  of  this  Court  inGan- 
pat  Lai  v.  Emperor  (2)  ia  to  the  same  effect. 

A  further  complaint  is  made  that  all  the 
evideitfje  was  not  recorded.  Only  one 
witness  has  been  mentioned,  and  it  appears 
from  the  District  Magistrate's  order  that  he 
was  not  re-examined.  Where  all  the  material 
evidence  has  been  heard  and  disbe- 
lieved I  am  not  prepared  to  set  aside  the 
order  merely  because  there  were  one  or 
two  subsidiary  witnesses  who  might  have 
been  called  but  whose  evidence  was  not 
recorded.  I  find  no  reason  to  interfere  and 
I  dismiss  the  application. 

z.  K,  Application  dismissed. 

(1)  8  Ind.  Gas.  631,  35  B.  163;  12  Bom.  L.  R.  923;  11 
Or.  L  J.  692. 

(2)  81  Ind.  Gas.  315;  46  A  537;  22  A,  L  J  411;  100. 
&  A.  L  R.  551;  25  Or.  L.  J.  795,  (1924)  A.  L  R.  (A )  664; 
L.  R,  5  A.  174  Or. 


LAHORE  HIGH  COURT. 

£  CRIMINAL  REVISION  PETITION  No,  634 

OP  1925. 
July  20,  1925. 
[.     Present;— Mr;  Justice  Abdul  Raoof. 

BHOLA — ACCUSED— PETITIONER 
B '  versus 

EMPEROR— RESPONDENT, 
Penal  Code.  (Act   XLV  of  18W)t  *.  80S,  80^  323- 
Blow   struck  with  heavy    weapon- -Disappearance  of 
person  struck—Offence* 


Accused  struck  his  brother's  widow  with  a  heavy 
moosal,  felled  h^r  to  the  ground,  and  then  dragged 
her  into  the  houss  after  which  no  trace  of  her  could 
be  discovered1 

llddt  that  in.  the  absence  of  definite  evidence  that 
the  woman,  had  died  and  that  her  death  was  due  to 
the  blow  which  the  accused  dealt  her,  the  accused 
could  not  be  convicted  of  an  offence  either  under 
s.  302  or  under  s,  304  of  the  Penal  Code  and  that  at  the 
most  IIP  was  guilty  of  an  offence  under  s  323  of  the 
Penal  Code,  [p  452,  col  1J 

Petitiont  for  revision  of  an  order  of  the 
Sessions  Judge,  Karnal,  dated  the  26th 
March  1925,  affirming  that  of  tha Magistrate, 
First  Class,  Rohtak,  dated  the  16th  March 
1925. 

Mr.  Shamair  Chand,  for  the  Petitioner. 

Mr.  Des  Raj  Sawhney,  Public  Prosecutor, 
for  the  Respondent. 

JUDGMENT.— The  applicant,  Bhola, 
was  convicted  by  M.  Abdul  Aziz,  Magistrate 
First  Class,  with  s  30  powers,  Rohtak,  under 
s.  304-11    of  tho  Indian  Penal    Code  and 
sentenced  to  four  years1  rigorous  imprison- 
ment.   His  appeal  to  the  learned  Sessions 
Judge  of  Karnal  was  dismissed  and  the 
sentence  upheld.     Hence  this  petition  for 
revision  to  this  Court.    A    learned  Judge 
of  this  Court,  while  admitting  the  petition 
for  revision  to  a  hearing,   directed  notice 
to  be  issued  calling  upon  the  applicant  to 
show  cause  why  he  should  not  be  convicted 
under  s,  302  of  the  Indian  Penal  Code  and 
why   the  sentence  should  not  be  enhanced.' 
The  case  for    the  prosecution  was  that 
on  or  about  the  21st  of  November  1924  the 
appellant  struck  his  brother's  widow,  Mu- 
sammat  Lachmi,  with  a  heavy  moosal  and 
that  she  fell  down  and  was  dragged  into-, 
the  house.    After  that  no  trace  of  her  was 
found     The  occurrence  was  seen  by  Ramji 
Lai  and    Jug  Lai    prosecution    witnesses 
who  have  given  evidence  in  this  case.    In 
addition  to  their  evidence  there  is  also  the 
evidence  of  a  nine  years  old  boy  named 
Pirthi  son  of  the  deceased  who  has  deposed 
that  since  that  day    his  mother  had  not 
been  traced  and  that  his  uncle  had  been 
telling  him  that  she  had  gone  to  a  village 
and    would    be  returning   soon.    He    has 
further  deposed  that  on  the  evening  of  the 
day  of  occurrence  he  had  seen  his  mother 
lying  in  the  house  and  that  she  had  not 
spoken  to  him  when  called.  Balram  ZaildaT 
has  deposed  that  a  pit  was  discovered  in 
the  village  from  which  foul  smell  had  beea 
coming  indicating  that  some  corpse  had 
been   concealed    therein,    No  dead  body, 
however,  was  found.    As  the   dead   body 
of  the  woman  was  not  found  there  WAS  U 


kADH6fel  V,  BMPflROR. 


[92 1.  0. 1926] 


medical  examination  and  so  there  is  no 
evidence  as  to  the  nature  of  the  injury 
caused  by  the  blow  given  with  the  moosal 
and  further  naturally  there  is  no  direct 
evidence  that  the  woman  had  actually  been 
killed  or  had  died.  The  defence  tried  to 
make  out  that  for  certain  reasons  she  had 
run  away.  The  Magistrate  has  further 
relied  on  the  circumstances  that  although 
the  woman  was  the  wife  of  Nagar,  brother 
of  the  petitioner,  no  search  appears  to  have 
been  made  for  her. 

The  question  to  be  decided  is  whether 
the  above  evidence  is  sufficient  to  support 
the  conviction  under  s.  331 II  of  the  Indian 
Penal  Code.  I  am  of  opinion  that  the 
necessary  facts  to  bring  the  case  under  the 
above  section  have  not  been  established 
by  the  evidence  for  the  prosecution,  At 
the  most  he  can  be  convicted  of  causing 
simple  hurt  under  s  3^3  of  the  Indian 
Penal  Code.  No  doubt  the  probability  was 
that  she  had  died  in  consequence  of  the 
injury  received  from  the  blow  of  the 
moosal,  but  in  the  absence  of  medical  evi- 
dence it  canuot  be  said  that  there  is  any 
proof  of  it,  There  is  a  good  deal  of  room 
for  conjecture  and  speculation,  but  conjec- 
ture is  no  proof.  I  am,  therefore,  con- 
strained to  hold  that  the  guilt  of  the 
accused  under  s.  302  II  of  the  Indian  Penal 
Code  ha3  not  been  established. 

I,  therefore,  set  aside  the  conviction  and 
sentence  under  that  section  and  in  lieu  of 
it  coavict  him  under  s.  323  of  the  Indian 
Penal  Code  and  sentence  him  to  one  year's 
rigorous  imprisonment. 

Z.  K.  Order  accordingly. 


ALLAHABAO  HIGH  COURT. 

CRIMINAL  REFERENCE  No  417  OF  1925. 

August  26,  1925. 

Present: — Mr,  Justice  Kanhaiya  Lai, 
KADHORI— APPLICANT 

versus 
EMPEROR— KESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1808),  ss.  133  to 
Itf,  202— U.  P.  Village  Panchayat  Act  (VI  of  1920), 
e.  72 — Power  to  make  local  enquiry — Obstruction  case 
-  Procedure, 

A  Miii:"-1!'!:  i  Is    r  >:r; patent  under   s.  72    of    the 
TJ.  P,  I  -!.':J<    I'rtsh'ls.ii'*:    Act   to  make  a   local  en- 
7  into  an   offence  or  charge  covered  by  s.  202, 
P.  C.  But  in  a  case  where  the  question  to  be 


determined  is  whether  any  unlawful  obstruction,  has 
or  has  not  been  made  over  a  public  pathway  or  other 
public  place,  he  should  follow  the  procedure  laid 
down  by  as.  133  to  143,  Or.  P.  0.,  and  basa  his  decision 
on  the  evidence  adduced  and  not  act  outside  such 
evidence  solely  on  the  report  of  the  panches  or  on 
their  local  investigation. 

Criminal  reference  made  by  the  Sessions 
Judge,  Mainpuri,  dated  the  22ad  May  1925. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT.— Alongside  a  small 
public  lane  Kadhori  has  a  house,  and  oppo- 
site that  house  stands  the  house  of  Mata 
Din.  The  house  of  Mata  Din  had  a  chabutra 
infronfc  of  it  which  he  is  said  to  have  ex- 
tended. Kadhori  has  also  built  a  shop, 
which,  », ;••  "•  :i:.j  to  his  allegation,  was 
built  in  the  place  of  an  old  6happer,  and 
according  to  Mata  Din  on  the  land  form- 
ing part  of  the  lane  or  pathway.  The  effect 
of  these  two  constructions,  ifc  is  stated,  was 
that  the  lane  was  considerably  narrowed. 
The  Trying  Magistrate  found  that  both 
these  constructions  were  encroachments 
newly  made  on  the  land  and  directed  both 
of  them  to  be  removed.  The  evidence 
produced  by  Kadhori  to  show  that  he  had 
built  the  shop  on  the  site  of  an  old  chap  per 
appears  to  have  been  disbelieved.  Certain 
panches  were  asked  by  the  Magistrate  to 
make  a  local  investigation  and  their  report 
was  that  the  shop  had  been  newly  built 
on  land  which  formed  a  part  of  the  lane  or 
public  pathway.  The  Magistrate  examined 
Tewari  Sheocharan  Lai,  the  Sarpanch,  who 
is  also  an  Honorary  Magistrate,  and  acting 
on  the  report  of  the  panches  he  directed  the 
removal  of  both  the  constructions. 

The  procedure  adopted  by  the  learned 
Magistrate  was  somewhat  irregular.  He 
had  power  under  s.  72  of  the  U.  P.  Village 
Panchavat  Act,  VI  of  1920,  to  make  a  local 
enquiry  into  an  offence  or  charge  covered 
by  s.  202,  Cr.  P.  0.,  but  in  a  case  like  the 
present  he  had  to  follow  the  procedure  laid 
down  by  ss.  133  to  143  of  the  Code  and  de- 
termine on  the  evidence  adduced  whether 
any  unlawful  obstruction  had  been  made 
over  a  public  path  way  or  other  public  place. 
He  could  not  have  acted  outside  such  evi- 
dence solely  on  the  report  of  the  panches 
or  on  their  local  investigation  to  determine 
whether  any  old  copper  existed  in  the  place 
where  the  shop  had  been  built  and,  if  not, 
how  far  the  encroachment  extended.  Beyond 
verifying  his  report  Tewari  Sheocharan  Lai 
does  not  say  whether  he  had  any  personal 
knowledge  about  the  matter, 


[S8  1.  0.  1926}  KBRAMAf  ttANDAL  fc  *lfPfiftOR. 

The  case  is,  therefore,  sent  back  to  the  Sentenced  to 
Trying  Magistrate  with  a  direction  to  en- 
quire afresh  into  the  matter  from  the  stage 
up  to  which  the  enquiry  had  last  proceeded, 
and  to  determine  how  far  the  land  or  public 
pathway  extended,  and  whether  the  en- 
croachments had  been  newly  made  thereon, 
BO  as  to  obstruct  the  pathway  and  whether 
the  public  had  suffered  in  consequence* 

N.  M.  Case  sent  back. 


453 


CALCUTTA  HIGH  COURT* 

CRIMINAL  APPEAL  No.  4 14  OF  1925. 

October  28, 1925. 
Present .—Justice  Sir  N.  R.  Chatterjea, 

KT.,  and  Mr.  Justice  B.  B.  Ohose. 

KERAMAT  MANUAL  ASD  ANOTHER— 

ACCUSED — APPELLANTS 

versus 
EMPEROR— OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  s  16S— 
Evidence  Act  (I  of  1871),  s.  165— Statement  made  to 
Police,  admissibihty  of —Judge,  power  of,  to  question 
Investigating  Officer-Jury  — '~7  ^~— '-'^'  »* 
evidence—Duty  of  Judge. 


trial— A  dmissibdity    of 


The  power  conferred  upon  a  Judge  under  s  165  of 

the  purpose 
of  the  law. 


the  Evidence  Act  cannot  be  exercised    for  the 
<  f  in:-!  t:  :  ':"ff  evidence  in  contravention 


i  K,  .-.  .  :, 

Under  s.  162,  Or.  P.  G  ,  statements  made  to  a  Police 
Officer  are  prohibited  from  being  used  for  any  pur- 
pose save  as  provided  in  the  section  ;  and  there  is  no 
provision  for  allowing  the  Judge  to  use  sn^h  state- 
ments for  confronting  the  witnesses  with  them.  To 
use  the  statements  for  this  purpose  is  to  contravene 
the  provisions  of  s.  162  of  the  Code,  [ibid.] 

In  introducing  '  evidence  in  a  trial  by  Jury  the 
Judge  must  be-  very  careful  in  order  to  avcid  mis- 
c  arriage  of  justice.  (  p  454,  col  2  ] 

Criminal  appeal  against  an  order  of  the 
Sessions  Judge,  Rajshahi. 

Babus  Debendra  Norain  Bhattacharjee 
and  Satindra  Nath  Mukherjee,  for  the 
Appellants, 

Mr.  Khondkar,  Deputy  Legal  Remem- 
brancer, for  the  Crown. 

JUDGMENT,—  This  case*  came  up 
once  previously  before  this  Court  on  which 
occasion  the  conviction  of  the  appellants 
was  set  aside  and  the  case  sent  back  for 
re-trial  on  the  ground  of  erroneous  admission 
of  inadmissible  evidence.  The  Court  gave 
also  certain  directions  as  regard  the  fram- 
ing of  charges  on  the  re  trial.  On  this  oc- 
casion also  the  appellants  have  been  con- 
victed on  the  unanimous  verdict  of  the  Jury 
under  s.  366  and  376,  Indian  Penal  Code,  and 


ten  years1  rigorous  imprison- 
ment, each  under  each,section,  the  sentences 
to  run  concurrently. 

On  behalf  of  the  appellants  it  has  been 
contended  by  their  learned  Vakil  that  the 
present  trial  has  also  been  vitiated  on 
account  of  the  use  made  by  the  Sessions 
Judge  of  the  statements  made  by  witnesses 
to  the  Police  Officer  during  the  course  of 
investigation  under  Ch,  XIV,  Or.  P.  C., 
in  contravention  of  s.  162  of  the  Code.  The 
learned  Judge  was  of  opinion-that  he  was 
entitled  to  put  question  with  regard  to  those 
statements  in  the  exercise  of  the  power1 
conferred  upon  him  by  s.  IBS  of  the  Indian 
Evidence  Act  in  the  order  to  shoxv  that  the 
witnesses  had  made  contradictory  statements 
to  the  Police  Officer  and  before  the  Court. 
We  have  no  doubt  that  the  Judge  was 
clearly  wrong  in  making  such  use  of  the 
statements  The  power  conferred  on  the 
Judge  under  s.  165,  Evidence  Act,  cannot 
be  exercised  for  the  purpose  of  introducing 
evidence  in  contravention  of  the  law.  The 
last  para,  of  s.  2  of  the  Evidence  Act 
leaves  the  provisions  of  the  Or.  P.  C  unaffect- 
ed. Under  s.  162,  Cr.  P.  C,,  statements 
made  to  a  Police  Officer  are  prohibited  from 
being  used  for  any  purpose  da ve as  provid- 
ed in  the  section;  aiid  there  is  no  provision 
for  ».1I  -.-.i:..:  the  Judge  to  ufce  such  state- 
ments for  confronting  the  witnesses  with 
them.  To  ue*e  tbe  statements  for  this  pur- 
pose was  to  contravene  the  provisions  of 
s.  162  of  the  Code.  The  learned  Deputy 
Legal  Remembrancer  is  unable  to  support 
the  proceduie  adopted  by  the  Sessions 
Judge, 

Trie  use  of  which  the  learned  Vakil  com- 
plains is  primarily  that  of  the    statements 
made  by  Sukhlal  (P.  W.  No,  IS)  to  the  Police 
Officer    which  was    introduced    with  the 
evidence     by  a  question    put  to  the  Sub- 
Inspector  by  the    Judge,  that  on  the  night 
of  the  occurrence  Joyhariand  Kailash  came 
to  the  w^ness  and  informed  him  that  Belat, 
K^ramat  (the  two  appellants  before  us)  and 
a  few  others  had    forueably     taken  away 
Adhar's  wife  from   Adhafs    bari,  whilehe 
stated   in  Court   that  on  the    night  of  the 
occurrence  Kailash  and  Jaihari  came  to  him 
and  said  that    they   suspected    Belat  and 
Keramat  of  having  taken  away  the  woman. 
It  is  contended   that   this  has  occasioned  a 
failure  of  justice,  for  if  the  Jury  thought  that 
Sukhlal  was  a  truthiul  witness  in  the  ab- 
sence of  this  contradiction,  the  verdict  might 
b$ve  bees  in  favour  of   the  accused,    It  in 


454 


BANWARI  LAL  V.  JHUNKA. 


urged  thdt  the  verdict  must,  therefore,  be  set 
aside  and  the  case  sent  hack  for  fresh 
trial.  We  arc  not  prepared  to  accept  this 
contention.  The  statement  was  with  regard 
to  such  an  unimportant  matter  and  had 
such  a  remote  bearing  on  the  question  in 
issue,  and  the  contradiction  not  being  at  all 
vital.  We  are  unable  to  hold  that  the 
admission  of  the  evidence  could  have  affect- 
ed the  verdict  of  the  Jury  in  any  way. 
Jaihari  and  Kailash  were  not  eye  witnesses 
to  the  occurrence.  They  only  purported  to 
state  what  they  had  heard  from  another 
witness  Kadhapyari.  Whether  they  stated 
that  the  accused  had  committed  the  act  or 
that  they  had  been  suspected  to  have  done 
that  act  on  the  night  of  the  occurrence 
seems  to  have  a  very  little  bearing  on  the 
positive  evidence  given  as  to  the  occurrence 
itself. 

It  is  next  urged  that  Sukhlal  had  given 
evidence  that  Binodini  had  immoral  rela- 
tions with  the  appellant  Belat  and  that  if 
this  witness  had  been  believed  the  verdict 
would  have  been  otherwise.  We  are  unable 
to  accept  this  contention  also  for  assuming 
that  Binodini  was  a  woman  of  immoral 
character,  there  was  no  reason  whatsoever 
for  her  leaving  her  home  for  the  whole 
night  and  leaving  a  child  five  months  old 
uncared  for  as  there  was  nothing  to  prevent 
her  from  carrying  on  the  intrigue  in  the 
manner  as  was  suggested  she  used  to  do 
before  the  day  of  occurrence  ;  nor  is  there 
any  reason  why  she  should  have  been  found 
next  morning  at  a  distance  from  the  village 
attempting  to  find  her  way  home,  in  the  con- 
dition in  which  the  witnesses  depose  to  have 
seen  her  hair  dishevelled,  eyes  blood-shot 
and  her  body  and  cloth  all  muddy.  There  is 
no  doubt,  therefore,  that  she  did  not  leave 
her  home  with  the  object  of  keeping  an 
assignation  even  assuming  that  Sukhlal's 
evidence  is  true.  But  against  this  man's 
evidence,  which  is  merely  hearsay,  there  is 
the  evidence  of  a  large  number  of  co- 
villagers  who  swore  that  Binodini  was  of 
good  character,  and  we  have  no  doubt  that 
the  suggestion  as  to  her  bad  character  is 
unfounded.  On  the  whole  we  are  unable  to 
hold  that  there  has  been  any  failure  of 
justice  on  account  of  the  erroneous  proceed- 
ing of  the  Judge.  In  this  view  we  are  not 
disposed  to  reverse  the  verdict  of  the  Jury. 

Before  parting  with  this  case,  we  must 
express  our  regret  that  the  Sessions  Judge 
has  committed  this  lamentable  error  which 
due  to  his  not  considering  the  recent 


[82  I.  0.  1926] 

amendments  of  the  Code  more  carefully. 
This  has  caused  us  a  great  deal  of  trouble 
and  much  waste  of  time  and  might  have 
caused  further  waste  of  public  time  and 
money  and  also  harassment  of  witnesses  if 
we  had  found  lit  necessary  to  reverse  the 
verdict  of  the  Jury  and  direct  fresh  re- trial. 
The  course  adopted  by  the  Judge  is  all  the 
more  regrettable  because  there  was  ade- 
quate and  proper  evidence  in  support 
of  the  case  for  the  prosecution  and  the 
contradiction  as  the  statement  sought  to 
be  introduced  was  of  no  practical  value. 
In  introducing  evidence  in  a  trial  with  the 
aid  of  a  Jury  the  Judge  must  be  very  care- 
ful in  order  to  avoid  miscarriage  of  justice. 
With  these  observations  we  dismiss  the 
appeal, 
z.  K.  Appeal  dismissed. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  559  OF  1925. 

November  6,  1925. 

Present: — Mr.  Justice  Sulaiman. 

BANWARI  LAL — ACCUSED— APPLICANT 

versus 
JHUNKA — OPPOSITE  PARTY, 

Criminal  Procedure  Code  (Act  V  of  1898),  ss.  1+39, 
176, 176-B- -Civil  Procedure  Code  (Act  V  of  1908),  s.  115 
—Order  by  Civil  Court  making  or  refusing  to  make 
complaint — Appeal  -  Revision,  nature  of, 

A  petition  for  revision  of  an  order  passed  by  a  su- 
perior Court  under  s  476-B,  Or.  P.  CM  on  appeal 
from  an  order  of  a  Civil  Court  making  or  refusing  to 
make  a  complaint,  must  be  dealt  with  under  s.  1)5,  C. 
P.  C  ,  and  not  under  s.  430,  Cr.  P.  C.  [p.  456,  cola.  1  & 
20 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Saharanpur,  dated  the 
10th  August  1925, 

Mr.  Nehal  Chand,  for  the  Applicant. 

Dr.   N.  C.  Vaish,  for  the  Opposite  Party. 

JUDGMENT.—This  is  an  application 
in  revision  from  an  order  passed  on  appeal 
directing  the  prosecution  of  the  applicant 
under  ss,  193  and  471  of  the  Indian  Penal 
Code.  The  applicant  filed  a  suit  on  the 
basis  of  a  promissory- note  alleged  to  have 
been  executed  by  the  defendant  and  also 
produced  a  receipt  purporting  to  be  of  the 
same  date.  The  defendant  denied  the 
genuineness  of  these  documents  and  denied 
that  he  had  ever  borrowed  any  money  from 
the  plaintiff.  The  promissory-note  and  the 
receipt  were  sent  to  the  Thumb  .Impression 


BANWAfcl  LAL  V,  JHONKA, 


'[9*  I.  0,1928] 

expert  at  the  instance  of  the  plaintiff,  but 
the  report  received  from  the  expert  was 
that  the  impressions  were  too  blurred  to  be 
decipherable.  The  plaintiff  then  stated 
before  the  Court  that  if  the  defendant 
took  an  oath  on  the  Ganges  water  that  he 
had  not  borrowed  the  money  from  the 
plaintiff  he  would  agree  to  the  suit  being 
dismissed.  The  defendant  agreed  to  take 
the  oath.  On  the  oath  being  taken  by  the 
defendant  the  Court  without  going  into  any 
further  evidence  dismissed  the  suit.  Neither 
the  plaintiff  nor  any  witnesses  on  his  behalf 
were  examined.  After  the  dismissal  of 
the  suit  the  defendant  applied  to  the  Trial 
Court  for  proceedings  being  taken  against 
the  plaintiff  under  s.  193  and  s.  471  of  the 
Indian  Penal  Code  inasmuch  as  he  had 
verified  the  plaint  and  filed  documents 
which  were  said  to  be  forged.  The  Trial 
Court  declined  to  pass  any  such  order.  On 
appeal  the  learned  Judge  has  reversed  the 
•rder. 

As  the  case  would  be  merely  one  of  oath 
against  oath  without  any  conclusive  docu- 
mentary evidence  to  prove  that  the  pro- 
note  and  the  receipt  were  forgeries  I  might 
have  inclined  to  interfere  in  revision  on  the 
criminal  side  if  the  application  were,  as 
it  purports  to  be,  under  s.  439  of  the  Cr. 
P.  C.  On  the  other  hand  if  this  is  a  pro- 
ceeding of  a  civil  nature  and  my  power  of 
revision  is  confined  to  the  provisions  of 
s.  115  of  the  C.  P.  0  , 1  would  find  it  abso- 
lutely impossible  to  interfere,  as  there  is 
neither  any  want  of  jurisdiction  or  any 
irregularity  or  illegality  in  the  exercise  of 
jurisdiction. 

I  have,  therefore,  to  consider  whether  a 
revision  from  an  order  passed  under  s.  476^B 
by  the  superior  Court  relates  to  a  proceed- 
ing within  the  meaning  of  s.  439  of  the  Cr. 
P.O. 

Under  the  old  Code  a  Full  Bench  of  this 
Court  In  the  matter  of  the  petition  of  Rhup 
Kunwar  (1)  overruling  several  previous 
cases  held'  "nhere  an  order  is  passed  under 
s.  476  by  a  Civil  Court,  the  case  does  not 
fall  under  s.  4?9  of  the  Cr.  P.  C.,  and  the 
High  Court  has  no  power  of  interference  in 
revision/' 

After  some  years  a  Full  Bench  of  the 
Calcutta  High  Court  came  round  to  the 
same  opinion  in  the  case  of  Har  Prasad  Das 
v.  Emperor  (2),  There  it  was  held  that  s. 

(1)2$  A.  249;  A.  W.N.  (1904)15;  1    Cr  L.  J.  73, 
(2)  19  Jnd.  Gas.  197;  40  0.   477;   17    Or.  1^.  J,    245; 
14  Or.  L.  J,  197;  17  0.  W.  N.  647. 


439  of  the  Or.  P.  C.,  was  inapplicable  tor* a 
case  where  a  Civil  or  Revenue  Court  had 
passed  an  order  under  s.  476. 

The  Full  Bench  case  had  of  course  been 
followed  by  this  Court  till  the  Code  was 
amended.  The  amended  Code  has  made 
certain  alterations  in  ss.  195,  476,  439  and 
537, 

A  Criminal  Revision  No.  428  of  1924  came 
up  before  Mukerji,  J.,  who  considered  the 
question  to  be  of  some  importance  and  re- 
ferred it  to  a  larger  Bench.  It  appears  that 
in  the  course  of  the  argument  he  was  inform- 
ed that  the  general  opinion  now  held  is  that 
the  earlier  view  of  this  Court  required  re- 
consideration. I  am  not  aware  of  the  ex- 
tent to  which  such  opinion  is  held.  The 
learned  Judge  suggested  that  the  point 
required  re-consideration  in  view  of  the  fact 
that  under  s.  476-0  an  appeal  is  now  allow- 
ed. The  Bench  before  which  the  case 
went  up  however  did  not  decide  this  ques- 
tion, but  dismissed  the  application  on  the 
merits. 

I  have,  therefore,  to  consider  whether  the 
amendment  of  the  Cr.  P.  C.  has  made  the 
Full  Bench  ruling  of  this  Court  no  longer 
a  good  law. 

Section  476  of  the  old  Code  as  well  as  the 
corresponding  section  of  the  new  Code 
empowers  any  Civil,  Criminal  or  Revenue 
Court  to  take  steps  mentioned  therein.  It 
follows  that  merely  because  a  Court  is  tak- 
ing proceedings  under  s.  476  it  cannot  be 
supposed  that  that  Court  is  necessarily  a 
Criminal  Court.  A  Civil  Court  exercising 
powers  under  s.  476  remains  a  Civil  Court. 
Section  476  of  the  old  Code  did  not  provide 
for  any  appeal  from  an  order  passed  by  the 
first  Court,  but  s.  476-D  provides  an  appeal 
from  an  order  passed  by  any  such  Civil, 
Revenueor  Criminal  Court  to  a  Court  to  which 
such  former  Court  is  subordinate  within  the 
meaning  of  s.  195  (3).  Then  the  superior 
Court  is  defined  in  s.  195  (3)  of  the  new  Code 
as  being  a  Court  to  which  appeals  ordinarily 
lie  from  the  appealable  decrees  or  sentences 
of  such  former  Court  or  in  the  case  of  a 
Civil  Court  from  whose  decrees  no  appeal 
ordinarily  lies,  the  principal  Court  having 
ordinary  original  civil  jurisdiction.  It 
follows,  therefore,  that  the  superior  Court 
to  which  appeals  ordinarily  lie  and  which 
is  empowered  under  s.  476  B  to  hear  an 
appeal  cannot  necessarily  be  deemed  to  be 
a  Criminal  Court.  It  can  continue  to  be  a 
Civil  Court  if  it  is  in  fact  a  Civil  Court. 
3,  Section  435  of  the  Cr.  P.  0.  empowers  the 


456 


THOKALA  8E8HAMMA  V,  TBLLittmt  VfttfCAMMA, 


[981.  0.1SS6J 


High  Qovirt  to  call  lor  the  record  of  any  in- 
ferior Qrirmnal  Court,  but  it  does  not  em- 
power the  High  Court  to  call  for  the  record 
of  any  Civil  or  Revenue  Court.  It  cannot, 
therefore,  be  contended  for  a  moment  that 
the  record  of  the  superior  Court  under  e. 
476-D  can  be  called  for  by  the  High  Court 
under  s.  435.  It  must,  however,  be  noted 
that  s.  439  is  slightly  wider  in  scope  and 
covers  cases  where  the  record  of  proceeding 
has  been  called  for  by  the  High  Court  or 
which  has  been  reported  for  orders  or  which 
otherwise  comes  to  its  knowledge,  Even 
under  tjie  old  Code  some  learned  Judges 
interfered  with  an  order  passed  under  s. 
145  of  the  Code  although  under  s,  435  (3) 
the  record  of  that  case  could  not  be  called 
for.  It  would  seem  that  the  Pigh  Court, 
therefore,  may  interfere  in  revision  under 
s.  439  even  if  it  has  not  been  empowered  to 
cal]  ^r  the  record  under  s.  435.  But  the 
view  taken  by  the  Full  Bench  of  this  Court 
referred  to  above  was  that  s.  435—439  must 
be  read  together  and  that  the  word  "pro- 
ceeding!1 mentioned  in  s.  439  meant  the 
same  proceeding  a-;  is  mentioned  in  s.  435. 
It  may  be  t|wt  il.c  word  "proceeding"  in 
s.  439  may  mean  the  proceeding  in  any 
Criminal  Court  referred  to  in  s.  435  or  it 
may  possibly  'mean  any  proceeding  to 
which  the  Ctf.  P.  C.  is  applicable.  If  the 
latter  meaning  were  to  be  assumed  per- 
haps the  power  of  revision  of  the  High 
Court  might  be  wider,  but  the  Full  Bench 
accepted  the  view  tjiat  the  word  '"'proceed- 
ing" meant  proceeding  in  any  Criminal 
Court  and  not  necessarily  any  proceeding 
referred  to  in  the  Cr  P.  C.  I  am  'bound  to 
fpUow  tjiat  view  and  ^  see  nothing  in  the 
amended  Code  which  can  alter  the  effect  of 
that  Fu\l  Bench  ruling.  The  mere  fact  that 
now  an  appeal  is  provided  to  a  superior 
Court  cannot  mafce « tl^at  Court  a  Criminal 
Qourt  nor  can  it  make  the  i  :  v  •;'  •;  be- 
iore  that  superior  Court  one  which  can  be 
interfered  with  under  s.  439. 

tJnder  the  old  Qpde  there  was  one  difft- 
•  culty  in  the  wa>  of  the  view  expressed  by 
tbe  Full  Bench,  namely,  that  s,  537-B  assum- 
ed that  a  High  Court  could  interfere  on 
Appeal,  or  revision  incases  of  an  irregularity 
lA  proceedings  taken  under  s.  195  or  s,  476, 
The  Full  Bench,  fyowever,  took  the  view  that 
that  must  refer  to  proceedings  under  s.  476 
Before  a  Criminal  Court.  No  such  difficulty 
now  arises  befpre  me.  Sub- clause  B  of  s.  537 
has  alfoqethar  been  deleted  in  the  new 
g,  537,  It  is  further  to  be  noted,  that  even  in 


the  old  Coete  there  was  no  mention  of  s.  476 
in  the  old  s.  439  but  there  WAS  a  mention  of 
e.  1,95.  In  the  corresponding  eectioii  of  the 
new  Code  even  the  mention  of  s.  195  has 
now  been  omitted.  It  is  further  clear  th&t 
the  substantial  effect  of  an  order  under 
s.  47j(J  is  the  filing  of  a  complaint  on  behalf 
of  the  Court  before  a  Magistrate.  When  an 
order  is  to  be  revised  it  would  mean  not 
only  an  order  superseding  the  order  of  the 
lower  Court  but  aj&o  an  order  directing  the 
withdrawal  of  that  complaint.  Section  438* 
does  not  expressly  empower  the  High  Court 
to  direct  the  withdrawal  of  acomplaint  which 
might  have  been  filed  by  a  subordinate 
Court.  It  is  confined  to  the  powers  which 
are  conferred  on  a  Court  of  Appeal  by 
ss.  423,  426,  427,  428  or  438.  It,  therefore, 
seems  to  me  that  the  amendment  of  the 
Cr.  P.  C.,  has  strengthened  the  view  of  the 
Pull  Bench  rather  than  weakened  ifc.  lam 
accordingly  of  opinion  that  I  have  no  power 
of  interference  on  the  criminal  side. 

The  learned  Counsel  for  the  applicant  has 
urged  before  me  that  I  should  exercise  the 
power  of  superintendence  conferred  on  the 
High  Qourt  under  s  107  of  the  Government 
of  India  Act.  I  doubt  very  much  whether 
tjie  word  "superintendence"  could  have  been 
intended  to  mean  the  same  thing  as  revi- 
sion. I,  however,  consider  it  unnecessary  to 
decide  whether  the  word  "superintendence" 
iai  used  in  an  administrative  sense  or  not.  I 
do  not  think  that  this  is  a  caae  in  which  an 
extraordinary  power  of  the  High  Court, 
even  if  it  we're  vested  in  it,  should  be  exer- 
cised. 

The  application  is  accordingly  dismissed. 

z,  K.  Application  dismissed. 


MADRAS  HIGH  COURT, 

CtaMtfrAt  APPEAL  'No.  29JJ  o*  I9£5. 

September  1,  1925. 
Present  ;—  Mi*.  Jttfetic&  Devadoss  and 

T^i\  J.ustice  Waller. 
THOKALA  8&8H  AMSJA  AKD  OTHERS 
s—  APPELLANTS 


versus 

YELLATURI   VBNKAMMA—  PETITIONS* 
—  RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  8.  tf$   • 
committea  in  eowm  of  judicial  '  proceeding  - 


£82 1.  0. 1026J 


THOtUU  SB3JUMMA  V.  YBIJUTUIU  VSNSAUMA, 


457 


Complaint  by  Court  after  termination  of  proceedings, 
legality  of—  Delay,  effect  of—  Complaint,  when  tc  6e 
made. 

The  power^onf  erred  upon  a  Court  under  s.  476  of 
the  On  P.  0.  to  make  a  complaint  to  a  Magistrate  when 
any  of  the  offences  referred  to  in  s.  195,  els.  (fr  and 
(c),  appears  to  have  been  committed  in  or  in  relation 
to  a  judicial  proceeding  before  it,  is  exercisable  even 
after  the  termination  of  the  proceeding  in  which  the 
offence  complained  of  is  said  to  h^ve  been  committed. 
[p.  458,  col.  2.] 

No  hard  and  fast  rule  can  be  laid  down  as  to 
within  what  time  a  '.:i  r-'iii'r.  -"  •  '  \  be  made  under 
s.  476.  If  a  Court  nf!»""i!i-»  !--r-  "  a  considerable 
time  makes  a  complaint  uncler  s.  476  such  com- 
plaint is  open  to  the  objection  that  it  was  made  after 
an  undue  delay.  Each  case  would  depend  upon  its 
own  circumstances,  [ibid.] 

The  effect  of  the  changes  made  in  the  Cr.  P 
0.  by  the  introduction  of  ss  476-A  and  476-B  is  no 
longer  to  make  it  necessary  that  a  proceeding  under 
s.  476  should  be  a  part  of,  or  so  soon  after  the  termi- 
nation of  the  judicial  :  •  •  ::  ...  s  to  make  it  a  part 
of,  the  judicial  proceeding,  [p.  45fr,  cols  1  &  2J 

Appeal  against  an  order  of  the  District 
Court,  Kuruool,  in  O.  P.  No.  49  of  1924, 
dated  the  5th  February  1925. 

Messrs.  A.  Venkatarayaliah  and  L.  Ven- 
katanarasimha,  for  the  Petitioner. 

Messrs.  A.  C.  Sampath  Aiyangar  and  P.  C. 
Parthasarathy  Aiyangar,  for  the  Respond- 
ents, 

JUDGMENT.—  -This  is  an  appeal  under 
s.  476-B  against  the  complaint  of  the  Dis- 
trict Judge  of  Kurnool  made  under  s.  476 
of  the  Cr.  P.  C.  Appellants  Nos.  1  and  2 
propounded  a  Will  of  one  Sami  Reddi  in 
answer  to  a  suit  brought  by  the  plaintiff 
for  the  recovery  of  the  properties  of  Sami 
Reddi  who  died  on  15th  January  1922. 


cisions  in  Rahimadulla  Sahib  v«  Empwor 
(\)  aad  Aiyakanrui  Filial  v.  Em,pzror(2) 
and  contends  that  the  order  of  the  District 
Judge  should  form  part  of  the  judicial 
proceeding  in  which  the  offence  or  offences 
are  said  to  have  been  committed.  The 
District  Judge  disposed  of  the  appeal  on 
3Uth  September  1924.  The  plaintiff's  widow 
moved  the  District  Court  on  8th  November 
1924  for  action  under  e.  476.  The  District 
Judge  passed  the  order  appealed  againet, 
on  5th  February  1525.  The  "  decisions  in 
Rahimadulla  Sahib  v.  Emperor  (1)  and 
Aiyakannu  Pillai  v.  Emperor  (2)  aud  the 
decisions  following  them  have  no  applica- 
tion to  a  complaint  under  s.  476  of  the 
present  Cr.  P.  C.  Those  decisions  were 
passed  under  the  old  Cr.  P.  C.  of  1898. 
The  present  s  476  empowers  a  Civil,  Cri- 
minal or  Revenue  Court,  if  it  considers 
expedient  in  the  interests  of  justice  that 
au  enquiry  should  be  made  into  any  offence 
referred  to  in  s.  195  els.  (6)  and  (c)  which 
appears  to  have  been  committed  in  or  in 
relation  to  a  proceeding  in  that  Court,  to 
hold  such  preliminary  enquiry,  if  ai^y,  as 
it  thinks  necessary,  record  a  finding  to  that 
effect  and  make  a  complaint  thereof  in 
writing  Section  476,  therefore,  contem- 
plates only  a  complaint  and  not  an  order 
for  proceedings  against  any  person  who,  it 
thinks,  has  committed  an  offence.  The 
wording  of  B.  476  of  the  old  Code  was 
different  from  the  wording  of  the  present 
s.  476.  Section  476  of  the  old  Code  was  as 
follows;— 

41  When  any  Civil,  Criminal  or  Revenue 
Court  is  of  opinion  that   there    is  ground 


The  3rd  appellant  is  the  writer  and  appel-  for  inquiring  into  any  offence  referred  to 

lants    Nos.  4  and  8  are  the    attestors    of  in  B  195,  and  committed  before  it  or  brought 

the  Will.    The  Subordinate  Judge  came  to  under  its  notice  in  the  course  of  a  judicial 

the  conclusion,  after  a  full  consideration  proceeding,  such   Court,  after  making  any 

of  the  evidence,  that  the  Will  waa  a  forgery,  preliminary  enquiry  that  may  be  necessary, 

On  appeal  the  District  Judge  agreed  with  may  send  the  case  for  inquiry  or  trial  to 

..          *-»     *          i .        ,         -w      *  •          %   «  i        •  ji _i_n/r_ '^i.—^j.—    ^^i.u^.     ijii  m**,  t-   /I  I  A  M«.  "" 


the  Subordinate  Judge  in  his  conclusion 
that  the  Will  waa  a  forgery.  The  plaintiff's 
widow  applied  to  the  District  Judge  to 
take  action*  under  s.  476  of  the  Cr.  P.  C. 
The  learned  Judge  has  laid  a  complaint 
before  the  Sub-  Divisional  First  Class  Magis- 
trate of  Kurnool  against  the  appellants 
for  offences  under  ss.  467,  193  and  196  of 
the  Indian  Penal  Code 

The  first  point  raised  by  Mr.  Venkata- 
rayaliah is  that  the  'District  Judge  acted 
without  jurisdictipn  inlaying  a  complaint 
about  4  months  after  ha  •ii.-po-MM  of  the 
appeal,  He  relies  upon,  the  Full  Jieudi  de~ 


the  nearest  Magistrate  of  the  First  Class. 
Under  the  present  Cr.  P.  C.,  it  is  not  only 
the  Court  in  which  the  offence  was  com- 
mitted, but  also  the  Court  which  hears  an 
appeal  from  that  Court,  is  entitled  to  pro- 
ceed under  s.  476  and  the  present  section 
contemplates  a  party  moving  the  Court  by 
an  application  to  take  action  under  s.  476 
In  Rahimadulla  Sahib  v.  Emperor  (1)  the 


(1)  31  M.  140;  17  M.  L.  J.  584;  3  M.  L.  T.  79;  7  Cr. 
L   J.  51, 

(2)  1  Ind.  Gas.  597;  32  M.  49;   19  M.  L.  J.  42;  4  M, 
L.  T.  404;  9  Or.  U  J,  41. 


453 


THOKAIA  8BSHAMMA  V.  YEULAT0RI  VBNKAMMA.  [92  I,  0.  1926] 


learned    Chief    Justice    observes  at  page 


"I  think  there  is  considerable    force    in 
the  observation  of  the  Chief  Justice  that  if 
months  after  the  trial  the  Court  may  act 
under  s.    476  it  is  difficult  to    appreciate 
the  necessity    of    s.   195.    As    regards  the 
general  policy  of  the  law,  I  agree  with  the 
view   expressed    by  Geidt,    J.     'I    do  not 
think*  —  the  learned  Judge  observes  :  —  'that 
it  was  ever  intended  that  when  the  proceed- 
ings had  terminated  and  passed  beyond  the 
ken  of  the  Court,  the  attention  of  the  Court 
should  be  subsequently  redrawn  by  some 
private  person  to  the  fact  that  in  those  pro- 
ceedings there  had  been  committed  some 
offence  in  contempt  of  the  Court's  authority 
or  against  public  justice    which  deserved 
punishment.    The  commission  of  the  offence 
and  the  desirability  of  a  prosecution  should 
be  so  patent  as  to  move  the  Court  at  the 
time  to   take  action  without  the  stimulus 
of  an  application  by  some  interested  person." 
The  two    reasons  given  by  the  learned 
Chief  Justice  are  absent  now.     Under  s.  195 
of    the    old    Code,  sanction  was   granted 
to  a  party  for  prosecution,  but  the  present 
s.  195  has   done  away   with  the    sanction, 
The  second  reason  that  the   Court  should 
act  suo  motu  without  the  stimulus  of    an 
application    cannot    apply  to  the  present 
section,  for  it  does  contemplate  an  applica- 
tion being  made  by  a  party  for  initiation 
of  proceedings.    The  words,   "  Whether  on 
application  made   to  it   in  this   behalf   or 
otherwise"  have  been  introduced    into  the 
present  section.      In   Aiyakannu   Pillai  v. 
Emperor  (2)  Sankaran   Nair,  J.,  holds  that 
a  proceeding  under  s.  476  does  specifically 
authorise   a    Court  proceeding  under  that 
section   to  make  a  complaint    in    writing 
signed  by  the  Presiding  Officer  of  the  Court 
to  a  Magistrate  of  the  First  Class.    Another 
reason    assigned  by    Sankaran  Nair,  J.,  is 
that  there  is   no  appeal  against  an  order 
under  s.   476.    The    present  s.  476-B   does 
provide  an  appeal  both  against  a  complaint 
made  under  s.  476  as  well   as  against  an 
order  refusing  to  lay  a  complaint  before  a 
Magistrate.    It  is  clear  from  the  wording 
of  the  present  s.  476  that  all  the  arguments 
which  weighed  with    the  learned  Judges 
who  decided  Rahimadulla  Sahib  v.  Emperor 
(1)  and  Aiyakannu  Pillai  v.  Emperor  (2) 
for  coming  to  the  conclusion  that  the  pro- 
ceeding under  s.  476  should  be  a    part  of 
the  judicial  proceeding  before  it  or  at  least 
"Page  of  31  M.—  [Ed. 


so  soon  after  the  termination  of  the  judg- 
ment proceeding  as  to  make  the  order  under 
s.  476  a  part  of  the  judicial  proceeding,  are 
met  by  the  changes  made  in  the  said  section 
and  by  the  enactment  of  two  new  sections 
476-A  and  476-B.    It  is  unnecessary  to  con- 
sider the  other  cases  on  the  point,  as  we 
hold  that  the  changes  made  in  the  Code 
have  met  the  arguments  advanced   by  the 
learned  Judges  for  coming  to  the  conclu- 
sion that  the   Court  acted  without  jurisdic- 
tion, if  it  passed  an  order  under  s,  476  some 
time  after  the   termination  of  the  proceed- 
ings in  which  the  offanc3  complained  of 
was   said  to    have  bsaa  committed.    The 
case  in    Maung  Shwe    Phwt     v.   Ma    Me 
Hmoke  (3)  dies    not    help  the    appellant. 
No  doubt,   if  the  Court  after  the  lapse  of 
considerable  time  makes  a  complaint  under 
s.   476,  such  complaint  is    open  to  the  ob- 
jection  that  it  was  made  after  an   undue 
delay.    Each  case   would  depend  upon  its 
circumstances.     No  hard  and  fast  rule  can 
be  laid  down  as  to  within  what  time,  a  com- 
plaint should  be  made  under  s.    476.    If  a 
Court  disposes  of  a  case  on  the    last  work- 
ing day  of  a  term  and  initiates  proceedings 
under  s.  476  on  the  first  day  of  the  re-open- 
ing of  the  Court  after  the  long  vacation, 
can   it    be  said  that  the  Court  acts    with 
undue  delay.    In  this  case  the  application 
was  made  within  40  days  of  the  delivery 
of  the  judgment  in  the  appeal,    A  similar 
application  was  made  to  the'  Subordinate 
Judge  of  Kurnool  and  as  the  appeal  was 
then  pending,  he  dismissed  the  application 
with  the  remark  uthat  the  petitioner,  if  ad- 
vised, may  renew  his  application  after  the 
litigation  ends".    The  application  was  re- 
newed  before  the  District  Judge  after  the 
disposal    of    the  appeal  and    the    District 
Judge  gave  notic-j  to  the  counter  petitioner 
and  laid  a  complaint    on  5th    February, 
1925.    It  cannot  be  said  that,  in  the  circum- 
stances,   there  has   been  undue  delay  in 
instituting  proceedings  under  s,  476. 

The  next  contention  of  Mr.  Venkatara- 
yaliah  is  that  there  should  be  a  finding 
that  the  appellants  are  guilty  of  an  offence. 
The  District  Judge  in  his  order  dated  5th 
February  1925,  has  recorded  a  finding  th\t 
the  Will  is  a  forgery  and  it  is  unnecessary 
that  all  the  reasons  given  in  the  judgmant 
should  be  repeated  in  an  order  in  which  he 
comes  to  the  conclusion  that  a  complaint 
should  be  laid  beforea  Firsd  Class  Magistrate. 

(3)  85   Ind.    Caa.    244.  3  R.  48;  3  Bur.  L,  J.  344; 
tl92§)  A,  I.  K,  (R.)  195;  26;Qr.  L.  J.  $09.  -   •  '  J 


[92  I,  O,  1926]  MADAT  KHAN 

It  is  next  argued  that  there  should  be  a 
reasonable  probability  of  the  prosecution 
ending  in  a  conviction  and  reliance  is  placed 
vpon  Munuswamy  Mudaliar  v.  Rajaratnam 
Pillai  (4)  and  the  cases  referred  to  therein. 
In  the  case  of  a  sanction  under  the  old  s.  195 
it  was  the  duty  of  the  Court  to  see  that  there 
was  a  reasonable  probability  of  the  prose- 
cution ending  in  a  conviction  and  to  dis- 
courage frivolous  and  vexatious  applications 
for  sanction.  In  order  to  prevent  a  person 
who  gets  the    sanction  from  misusing    it, 
the  Court  had  to   take  care  to    see  that 
sanction  was  granted  to  proper    persons. 
Such  considerations  do  not  apply  to  a  com- 
plaint made  by  the  Court,  but  the  Court 
acting  under  s.  476  should  not  act    capri- 
ciously or  without  proper  grounds.    Sec- 
tion  476-B  by  which  an  appeal  is  provided 
is  a  sufficient  safeguard  against    frivolous 
complaints  being  made.    Here,  in  this  case, 
the  District   Court  has  preferred  a    com- 
plaint after  due  consideration  of  the  evi- 
dence and  after  recording  a  finding  that  the 
Will  propounded  by  appellants  Nos.  1  and 
2  was  a  forgery.     When  two  Courts  have 
given  a  concurrent   finding  that  a  Will  is  a 
forgery,  it  cannot  be  said  that  the   Court 
has  not  acted  with  clue  care  and  caution  and 
without  considering  whether  there  is  a  pro- 
bability of  the    prosecution  ending    in    a 
conviction.    As  the    appellants  are   to    be 
tried,  for  the  offences  with  which   they  are 
charged,  any  strong  expression  of  opinion 
by  this  Court    on  the  merits  of  the  case 
might  prejudice  them  in  their  own    trial. 
The  concurrent  finding  of  two  Courts  that 
the  Will  is  a  forgery  is  sufficient  guarantee 
for  the  view  that  this  is  a  fit  case  to   be 
enquired  into  by  a  Magistrate. 

The  appeal  is  dismissed. 

v.  N.  v.  Appeal  dismissed. 

(4)  72  Ind.  Caa.  340;  44  M,  L.  J.  774  at  p.  778;  16 
L.  W.  505;  (1923)  A.  I,  R.  (M.)  136;  45  M,  928;  24  Cr. 
L.J.  340. 


LAHORE  HIGH  COURT. 

CRIMINAL  APPEAL  No.  774  OP  1925. 

October  24,  1925. 

Present:— Sir  Shadi  Lai,  KT.,  Chief 
Justice,  and  Mr.  Justice  Campbell. 
MADAT  KHAN  AND  ANOTHER— CONVICTS- 
APPELLANTS 

versus 

EMPEROR  -Rs>i' JN  i>::\  r. 
Penal  Code  (Act-  XLV  r-    '"^   M  •:•:  ,*/•?— Deotfc 


t,  EMPBROR.  459 

caused      in     pre-arranged      fight— Mwrder—  Private 
defence,  right  of. 

Where  members  of  two  rival  factions  armed  with 
deadly  weapons  take  part  in  a  pre-arranged  fight,  and 
deaths  are  caused  on  either  side,  no  question  of  the 
exercise  of  the  right  of  private  defence  arises,  and 
all  those  who  take  part  in  the  fight  are  guilty  of  the 
offence  of  murder,  [p.  460,  col.  L] 


Appeal  from  an  order  of  the  Sessions 
Judge,  Attock  at  Campbellpore,  dated  24th 
July  1925. 

Sir  Mohammad  Shafi,  KT.,  and  Mr.  Abdul 
Aziz,  for  the  Appellants. 

Mr.  Dalip  Singh,  Government  Advocate, 
for  the  Respondent. 

JUDGMENT. 

Shadi  Lai,  C.  J.— On  the  afternoon  of 
the  21st  April  1925,  a  fight  took  place  out- 
side the  village  of  Dhok  Baz  Gul  in  the 
Attock  District  between  the  members  of 
two  rival  factions  known  respectively  as 
Ashrafs  party  and  Madat's  party.  The 
learned  Sessions  Judge  finds,  and  his  find- 
ing has  not  been  seriously  contested  before 
us,  that  three  men  on  each  side  participat- 
ed in  the  fight.  Taj  Muhammad  and  Nur 
Muhammad,  sons  of  Ashraf,  and  Nur  Khan, 
his  brother-in-law,  were  the  members  of 
Ashrafs  faction  who  participated  in  this 
affair  while  on  the  opposite  side  the  com- 
batants were  Madat  and  his  two  brothers, 
Faqir  and  Ghazan. 

It  is  beyond  dispute  that  all  the  six 
persons  mentioned  above  were  wounded, 
and  that  two  of  them,  namely,  Ghazan  and 
Nur  Muhammad  succumbed  to  their  in- 
juries. Taj  Muhammad  and  Nur  Khan 
have  been  found  guilty  of  the  murder  of 
Ghazan,  and  their  adversaries  Madat  and 
Faqir  have  been  convicted  of  the  murder  of 
Nur  Muhammad,  and  the  convicts  have  all 
been  sentenced  to  suffer  the  penalty  of 
death. 

Now,  the  medical  evidence  makes  it 
perfectly  clear  that  two  men  on  each  side 
received  bullet  wounds,  and  that  the  com- 
batants belonging  to  each  of  the  rival  par- 
ties received  also  wounds  inflicted  with 
spears  and  knives.  There  can,  therefore, 
be  little  doubt  that  the  members  of  each 
party  were  armed  with  a  pistol,  a  spear  and 
a  knife;  and  I  cannot  accept  the  contention 
that  neither  Madat  nor  his  companions 
attacked  their  adversaries  with  a  pistol.  It 
must  be  remembered  that  not  only  the  de- 
ceased Nur  Muhammad,  but  also  his  brother 
Taj  Muhammad,  received  bullet  wounds, 
and  it  is  most  Unlikely  that  these  wounds 


460 


BAHADUil *.  EMPBfcOft. 


were  the    result  of   misjudged    firing  by 
their  own  relative  Nur  Khan. 

Two  rival  versions  have  been  put  for- 
ward before  the  Court,  and  each  party 
have  tried  to  minimize  their  own  part  ia 
the  transaction,  These  versions  are  set 
out  in  the  judgment  of  the  learned  Sessions 
Judge,  and  after  examining  the  arguments 
advanced  by  the  learned  Counsel,  on  both 
sides  I  have  no  hesitation  in  endorsing  the 
conclusion  of  the  learned  Judge  that  the 
evidence"  produced  in  support  of  the  rival 
stories  is  wholly  unreliable  and  that  both 
parties  have  suppressed  important  facts 
concerning  the  transaction. 

Jt  is  cominon  ground  that  a  bitter  enmity 
extending  oyer  nearly  12  years  existed  be- 
tween the  two  families,  and  there  is  evi- 
dence to  the  effect  that  only  a  day  or  two 
before  the  incident  in  question  shots  were 
fired  by  one  or  more  members  of  each  party 
at  their  adversaries.  Now,  the  witness 
Inayat  deposes  that  on  the  morning  of  the 
2 1st  April  he  went  to  Ashraf  to  seek  the 
latter's  assi$tance  in  reaping  his  harvest, 
but  that  Ashraf  expressed  his  inability  to 
accede  tp  the  request  because  he  had  made 
an  appointment  to  fight  Madat.  That  the 
fight  was  a  pre-arranged  affair  receives 
support,  not  only  from  the  circumstances 
that  the  number  of  the  combatants  on  each 
side  was  exactly  the  same,  but  also  from, 
the  fact  that  they  were  armed  witli  exactly 
similar  weapons,  namely,  a  pistol,  a  spear 
and  a  knife  on  each  side.  In  view  of  this 
important  circumstantial  evidence  cor- 
roborating the  testimony  of  Inayat  it  is 
futile  to  contend  that  the  learned  Sessions 
Judge  has  invented  a  theory  which  is  not 
supported  by  any  evidence  on  the  record. 
Indeed,  the  story  of  a  pre-arranged  fight 
between  the  two  factions  is  the  only  rational 
version  which  is  compatible  with  all  the 
known  circumstances  of  the  case  and  satis- 
factorily accounts  for  the  injuries  sustained 
by  the  combatants. 

No  question  of  self-defence  arises  in  a 
case  of  this  character,  and  the  prisoners, 
upon  whom  the  onus  rested,  have  failed  to 
show  that  they  were  entitled  to  exercise 
the  right  of  private  defence.  The  convicts 
are  clearly  guilty  of  an  offence  under  s. 
302,  Indian  Penal  Code,  and  there  is  no  ad- 
equate ground  w;hicli  would  justify  inter- 
ference with  the  discretion  of  the  Trial 
in  the  matte*  pf  the  punishment 
by  him.  Confirming,  therefore, 


[«-!.  0. 1928J 

the  sentences  of  death  X  dismiss  both  the 
appeals, 

Campbell,  J,~ I  agree  that  the  appeals 
are  dismissed  and  the  sentences  of  death, 
confirmed, 

25,  K.  Appeals  dismissed. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REFERENCE  No,  686  OP  1925. 

November  12,  1925. 
Present: — Mr.  Justice  Kanhaiya  Lai. 
BAHADURA  OR  KAHADRE— APPLICANT 

versus 
EMPEROR— OPPOSITE  PARTY. 

Penal  Code  (Act  XLV  of  I860),  s.  178~Criminal 
Procedure  Code  (Act  V  of  1898),  9.  160— Notice  to 
attend  enquiry,  refusal  to  accept — Intentionally  pre- 
venting service — Offence. 

Refusal  to  accept  a  notice  issued  by  a  Police  Officer 
under  s.  160,  Or.  P.  C.,  requiring  attendance  at  an 
enquiry  does  not  amount  to  an  offence  under  s.  173 
of  the  Penal  Code. 

Criminal  reference  made  by  the  Sessions 
Judge,  Meerut,  dated  the  12th  October 
1925. 

REFERRING  ORDER,—This  is   an 

application  against  the  order  of  a  Magis- 
trate convicting  the  applicant  Bahadura  of 
an  offence  under  s  173  of  the  Indian  Penal 
Code,  and  sentencing  him  to  pay  a  fine  of 
Rs.  5  or  in  default  to  undergo  one  week's 
simple  imprisonment.  The  learned  Magis- 
trate has  held  that  the  applicant  refused 
to  receive  a  safina  or  to  sign  it  in  token  of 
service.  There  is  no  dispute  as  to  the  fact. 
It  is  urged  on  behalf  of  the  applicant  that 
refusal  to  receive  a  safina  docs  not  consti- 
tute an  offence  undei  s.  173  of  the  Indian 
Penal  Code.  This  is  borne  out  by  the 
commentaries  and  the  Government  Pleader 
has  nothing  to  urge  against  the  applica- 
tion. In  these  cirumstances  I  hold  that 
the  conviction  of  the  applicant  waa  illegal. 
The  record  will  be  submitted  to  theHon'ble 
High  Court  for  orders. 

JUDGMENT.— A  notice  was  issued  by 
a  Police  Officer  under  s.  160  of  the  Or.  P.  C. 
requiring  the  petitioner,  Bahadura,  to 
attend  the  enquiry.  He  is  said  to  have  re- 
fused to  take  the  notice.  He  has  been  tried 
and  convicted  of  an  offence  under  s.  173  of 
the  Indian  Penal  Code.  This  does  not, 
however,  amount  to  an  offence  of  intention- 
ally preventing  service  Sahdeo  Rai  v, 
Emperor  (1). 

(1)  46  I»d.  Ca$.  521;  40  A.  577;  16  A.  l>.  J,  453;  19 
Or.  L  3, 716, 


[9S  E  0,  W26J  TflJi  SINGH  V. 

The  conviction  and  sentence  are,  there- 
fore, set  aside.  The  fine,  if  paid,  will  be 
refunded, 

z,  K.  Conviction  set  aside. 


LAHORE  HIGH  COURT. 

CRIMINAL  APPEAL  No.  643  OF  1925. 

October  3,  1925. 

Present; — Mr.  Justice  Zafar  AH. 
TEJA  SINGH— ACCUSED— APPELLANT 

versus 
EMPEROR— RESPONDENT. 

Evider,ce  Act  (I  of  1872),  s.  133— Approver,  state- 
ment of,  value  of —Confession  brought  about  by  pressure 
of  relatives. 

It  ia  not  safe  to  place  any  reliance  upon  the  testi- 
mony of  an  approver  who  was  prevailed  upon  by  his 
relatives,  who  were  members  of  a  faction  hostile  to 
the  accused,  to  make  a  confession  and  turn  King's 
evidence. 

Appeal  from  an  order  of  the  Sessions 
Judge,  Lyallpur,  dated  the  9th  April  1925. 

Mr.  M.  L.  Puri,  for  the  Appellant. 

Diwan  Ram  Lai,  Assistant  Legal  Re- 
membrancer, for  the  Respondent. 

JUDGMENT*— The  appellant  Teja 
Singh,  a  young  man  of  25  years,  has  been 
convicted  by  the  Sessions  Judge,  Lyallpur, 
of  an  attempt  to  cause  grievous  hurt  by 
means  of  a  bomb,  inasmuch  as  he,  in  com- 
pany with  another  youth,  namely,  Sewa 
Singh  who  turned  King's  evidence,  ex- 
ploded a  bomb  at  midnight  in  the  door  of 
the  baithak  wherein  the  complainant  lay 
asleep.  The -so-called  bomb,  it  was  f6und, 
contained  no  explosives  but  country  gun* 
powder  of  an  inferior  quality,  The  evi- 
dence on  which  the  conviction  is  based 
appears  to<  be  highly  improbable  and  un- 
worthy of  credit.  Kishen  Singh  according 
to  the  finding  of  the  learned  Sessions  Judge 
is  a  scoundrel  of  the  first  water.  He  had 
admittedly  a  liaison  with  the  mother  of 
the  appellant  ever  since  the  latter  was  a 
minor  but  now  that  he  was  major  he  natu- 
rally resented  his  illicit  connection  with 
her.  Therefore,  Kishen  Sini£?i's  propensity 
to  devise  a  plan  to  put  'IVja  tfinurh  out  of 
his  way  should  not  have  beerl  lost  sight  of. 

Now,  his  story  was  that  on  the  night  be- 
tween the  15th  and  16th  October  1924  he 
waa  roused  from' sleep  by  the  bursting  of  a 
bomb  in  the  door  of  his  baithak  which  was 
open.  It  is,  however,  unlikely  in  the  first 
plaro  llwt  he  should  liav<*  gone  to  bfcd  leav- 
ing thfctloor  open,  Sedondly,  even  if  thfc 


461 

whole  thing  was  not  a  concoction,  it  is  not 
likely  that  the  perpetrators  of  the  out- 
rage were  still  within  sight  and  could  be 
identified  when  he  came  out  from  his 
baithak.  However  this  may  be,  the  Police 
Officer  who  made  the  investigation  came 
to  the  conclusion  that  Kishen  Singh  was 
guilty  of  fabrication  and  took  him  into 
custody.  He  had  been  in  the  lock-up  for 
10  or  12  days  when  his  friend  Jagat  Singh 
a  retired  Risaldar  intervened  on  his  behalf 
with  the  Superintendent  of  Police  and  the 
latter  deputed  another  Police  Officer,  name- 
ly, Anup  Singh  Inspector,  to  investigate  the 
case.  The  tables  were  turned  as  soon  as 
the  latter  arrived  at  the  spot.  Jagat  Singh 
according  to  his  own  showing*  was  not  a 
disinterested  person.  He  admits  that  there 
are  two  factions  in  the  village  and  that 
Kishen  Singh  is  a  partisan  of  his.  He  had 
once  before,  too,  intervened  with  the  Sup- 
erintendent of  Police  on  his  behalf  when 
he  was  under  arrest  for  theft  and  later  on 
he  appeared  as  a  witness  in  his  defence. 
Teja  Singh  appellant  belongs  to  the  opposite 
faction.  There  is  admittedly  strong  party 
feeling  between  the  two  factions  so  much  so 
that  Jagat  Singh  and  his  few  adherents  are 
boycotted  by  th«  rest  of  the  villagers  who 
constitute  the  other  faction.  Kartar  Singh, 
father  of  Sfewa  Singh  approver,  is  also  a 
partisan  of  Jagat  Singh  but  he  was  not  in 
the  village  at  the  time  of  the  occurrence 
and  during  his  absence  Sewa  Singh  had 
begun  to  associate  with  Teja  Singh  appel- 
lant. Kartar  Singh  came  back  probably 
on  hearing  of  the  case  and  was  present 
when  Anup  Singh  Inspector  arrived.  It 
appears  that  Jagat  Singh  and  Kartar  Singh 
put  their  heads  together  and  prevailed 
upon  Sewa  Singh  to  make  a  confession  and 
turn  K  inir'-  o\  itikm-o  On  the  very  day  on 
which  I  l.o  Ih-i-u-c!  r  arrived  8ewa  Singh 
appeared  before  him  and  confessed.  As 
there  was  no  other  evidence  available  the 
Police  Inspector  fell  in  with  the  scheme  of 
Jagat  Singh. 

Having  regard  to  the  circumstances  under 
which  Sewa  Singh  turned  approver  it  is 
not  safe  to  place  any  reliance  on  his  testi- 
mony. Similarly.  Jagat  Singh  has  shown 
himself  to  be  quite  unworthy  of  credit. 

I,  therefore,  accept  the  appeal,  set  aside 
the  conviction  and  sentence  and  direct  that 
the  appellant  be  released  forthwith. 

z,  K.  Appeal  accepted, 


8IND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REVISIONAL  APPLICATION 

No,  175/4  OF  1925. 

September  24,  1925. 

Present:— Mr,  Kennedy,  J.  C.,  and 

Mr.  Tyabji,  A.  J.  0. 
CHANDIRAM  AND  OTdEBS— ACCUSED 

versus 
EMPEROR— OPPOSITE  PARTY, 

Penal  Code  (Act  XLV  of  I860),  s  120B— Conspiracy, 
inyredi&nta  of— Overt  act,  value,  of. 
The  ingredients  of  the  offence  of  conspiracy  are:— 

(1)  That  there  should  be  an  agreement  between  the 
persons  who  arc  alleged  to  conspire;  and 

(2)  that  the  agreement  should  be-  — 
(i)  for  doing  of  an  illegal  act,  or 

(ii)  for  doing  by  illegal  means  an  act  which  may 
not  itself  be  illegal  [[p.462,  co  1.  1.1 

Conspiracy  is  a  substantive  offence  and  has  nothing 
to  do  with  abetment.  Although  an  overt  act  may  be 
specilied  in  the  charge  yet  this  is  not  (except  when 
the  end  of  the  conspiracy  ia  not  to  commit  an  offence) 
necessary.  The  overt  act  or  acts  is  or  are  introduced 
not  as  partially  constituting  an  offence  but  as  giving 
information  and  example  as  to  what  the  conspiracy 
was  The  offence  is  conspiracy.  Nor  is  there  any 
limit  to  the  number  of  overt  acts  which  can  be  given 
in  the  charge,  [p.  462,  cols.  1  .&  2.] 

It  is  not  necessary  that  each  conspirator  should  be 
aware  of  all  the  acts  done  by  each  of  the  conspirators 
in  the  course  of  the  conspiracy,  [p  462,  col  2.] 

It  is,  however,  necessary  that  there  should  bo  one 
conspiracy  and  not  a  series  of  conspiracies  and  crimi- 
nal acts  unconnected  by  unity  of  intention,  [ibid.] 

Reference  made  by  the  District  Magis- 
trate, Larkana,  dated  21st  August  1925. 

Mr.  C.  M.  Lobo,  Acting  Public  Prosecutor 
for  Bind,  for  the  Crown. 

Mr  Partabrain.Punwani,iQi:  the  Accus- 
ed. 

JUDGMENT.— We  think  there  has 
been  some  confusion  in  the  Courts  below 
as  to  the  law  of  conspiracy  :— 

The  ingredients  of  the  offence  of  con- 
spiracy are :— 

(1)  That  there  should  be  an  agreement 
between  the  persons  who  are  alleged  to  con- 
spire ;  and 

(2)  that  the  agreement  should  be:— 
(i)  for  doing  of  an  illegal  act,  or 

(ii)  for  doing  by  illegal  means  an  act 

which  may  not  itself  be  illegal. 
It  must  be  remembered  that  conspiracy 
is  a  substantive  offence  and  has  nothing  to 
do  with  abetment.  It  is  to  be  remembered 
also  that  though  an  overt  act  may  be 
specified  in  the  charge  yet  this  is  not 
(except  when  the  end  of  the  conspiracy  is 
not  to  commit  an  offence)  necessary.  In  any 
case  the  overt  act  or  acts  is  or  are  introduc- 


$2 1,  0, 

ed  not  as  partially  constituting  the  offence 
but  as  giving  information  and  example  ad 
to  what  the  conspiracy  was.  Nor  is 
there  any  limit  to  the  number  of  overt 
acts  which  can  be  given  in  the  charge. 
The  accused  is  not  charged  with  com- 
mitting them  but  with  committing  the 
offence  of  conspiracy  in  the  course  of 
which  these  events  took  place.  It  is 
thus  clear  that  it  may  be  specified  in  a 
charge  that  a  certain  act  has  been  com- 
mitted which  could  not  possibly  be  com- 
mitted by  one  of  the  alleged  conspirators 
nevertheless  such  conspirator  may  be  guilty 
of  that  conspiracy  in  the  course  of  which 
such  act  was  committed.  Thus  Lady  Roch- 
ford  might  well  have  been  charged  with  con- 
spiracy to  commit  high  treason  in  con- 
nection with  the  seduction  of  Anne  Boleyn. 

Again  it  is  not  ,by  any  means  necessary 
that  each  conspirator  should  be  aware  of  all 
the  acts  done  by  each  of  the  conspirators 
in  the  course  of  the  conspiracy.  This 
necessarily  follows  from  what  has  been  said 
above.  His  offence  is  the  conspiracy.  The 
acts  done  by  any  of  the  conspirators  in 
furtherance  of  the  purpose  of  the  conspiracy 
are  merely  indication  of  what  the  object  of 
the  conspiracy  was. 

What  is  necessary,  however,  is  that  there 
should  be  one  conspiracy  and  not  a  series 
of  conspiracies  and  criminal  acts  uncon- 
nected by  unity  of  intention.  It  is  quite 
possible  that  the  same  gang  may  commit 
conspiracy  after  conspiracy,  all  of  the  same 
nature  yet  actually  unrelated.  Again  it  is 
quite  possible  that  there  may  be  a  band 
of  conspirators  working  for  a  common  cri- 
minal end  and  that  for  the  purpose  of  that 
conspiracy  they  may  find  it  necessary  to 
procure  the  doing  of  unlawful  acts  by 
persons  who  are  not  members  of  the  con- 
spiracy. In  that  case,  if  the  persons  so 
seduced  into  unlawful  acts  are  not  aware 
of  the  conspiracy,  the  fact  that  they  do 
unlawful  acts  does  not  make  them  members, 
Thus  let  it  be  supposed  that  a  gang  of  men 
conspire  to  murder  some  one  and  to  that 
end  borrow  a  gun  from  a  license-holder, 
who  thus  commits  the  offence  of  parting 
with  his  gun  contrary  to  his  license,  but 
who  imagines  that  the  conspirators  have 
borrowed  the  gun  for  shikar,  that  will 
not  make  the  license-holder  a  conspirator. 

In  the  present  casa  it  is  necessary  to  find 
whether  there  was  a  conspiracy  to  defraud 
the  Railway  Company  by  a  continual  series 
of  frauds  all  forming  one  fraud  and  nolj. 


I.  0. 


(5HHIDDA  V.  EMPEROR. 


463 


being  isolated  acts.  If  that  be  the  case  it 
can  be  judged  whether  the  accused  were 
guilty  of  that  conspiracy  or  whether  they 
or  any  of  them  were  so  committing  isolated 
crimes  not  knowing  that  such  crimes  form- 
ed part  of  the  greater  design.  In  the  first 
case,  it  would  not  matter  in  the  slightest 
whether  some  of  the  persons  were  to  com- 
mit offences,  e.g.,  criminal  breach  of  trust 
which  others  could  not  by  the  nature  of 
things  commit.  It  might  quite  well  be  the 
case.1  Lokumal  was  to  go  on  making  false 
applications  for  concession  tickets  and 
Chandirarn  to  go  on  making  false  entries 
and  taking  the  Company's  money  and  yet 
they  might  both  be  members  of  a  per- 
manent conspiracy  for  defrauding  the  Rail- 
way. 

In  that  case  it  does  not  matter  whether 
there  is  evidence  tending  to  show  that 
certain  offences  were  committed  by  other 
persons  unknown  to  some  one  or  other  of  the 
conspirators.  That  evidence  would  be  per- 
fectly relevent  against  all  as  tending  to 
show  the  nature  of  the  conspiracy  and  the 
method  adopted  for  carrying  out  the  objects 
of  the  conspiracy. 

If,  however,  it  proved  that  there  was  no 
conspiracy,  but  merely  an  unrelated  series 
of  crimes,  unrelated,  that  is,  by  any  common 
end,  then  none  of  the  alleged  conspirators 
would  be  guilty  of  the  offence  charged.  In 
that  case  either  the  isolated  offences  would 
be  such  that  if  proved  they  could  form  the 
basis  of  a  conviction  in  accordance  with 
s.  237,  Cr.  P.  C.,  in  which  case  the  guilty 
persons  could  be  so  convicted.  Or  on  the 
other  hand,  the  isolated  offences  might  be 
of  a  kind  which  could  not  be  so  dealt  with 
in  which  case  an  acquittal  of  the  offence  of 
conspiracy  would  be  no  bar  to  further  pro- 
ceedings on  the  true  charge. 

It  would  seem  then  that  in  the  present 
case  the  accused  are  entitled  to  a  decision. 
If  they  are  conspirators  they  can  be  con- 
victed, if  they  are  not  conspirators  they  can 
be  acquitted  of  that  charge.  If  not  con- 
spirators but  liable  to  conviction  under 
s.  237  for  the  individual  offences  specified, 
they  can  be  convicted.  If  not,  they  can  be 
,  acquitted.  In  either  case,  there  seems  no 
necessity  on  the  part  of  the  Sessions  Judge 
to  remand  the  case.  He  should  decide  it 
himself  in  the  light  of  the  above  remarks. 
We,  therefore,  set  aside  his  order  of.  re- 
mand. 

P.  B.  A. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  452  OF  1925. 

November  4,  1925. 
Present: — Mr.  Justice  Sulaiman. 

CHH1DDA  AND    OTHERS— AcOCJSttD  - 

APPLICANTS 

versus 
EMPEROR— OPPOSITE  PARTY. 

Penal  Code  (Act  XLV  of  I860),   aa    Itf,  1W,  323 
Unlawful    assembly-  Injuries  inflicted  by    members  - 
Rioting — Hurt —Convictions     for     separate    offences, 
legality  of 

Section  141)  of  the  Ponal  Code  cieat£s  no  substan- 
tive offence  in  itself.  It  is  merely  declaratory  of  the 
law  and  makes  a  person  who  has  been  a  member  of 
an  unlawful  assembly  liable  ior  the  offences  com- 
mitted by  any  other  member  of  it.  Hut  s  147  of  the 
Code  creates  a  substantive  olTence  in  ithelf  and  makes 
a  person  guilty  of  the  offence  of  rioting  as  distinct 
fiom  actually  causing  any  injury  or  hurt.  ^Similarly 
s.  323  of  the  Code  creates  a  distinct  offence  in  itself 
Where,  theiefoie,  moie  injuries  than  one  are  caused 
l>y  the  members  of  an  unlawful  assembly  they  can  be 
convicted  of  offences  both  under  s  147  and  under 
8  323,  read  with  s  149  of  the  Penal  Code.  In  such  a 
case,  as  soon  as  the  first  injury  is  caused  to  any 
person,  force  is  used  and  the  offence  of  rioting  is 
complete.  Subsequent  injuries  though  inflicted  in 
pursuanre  of  the  same  common  object  would,  be  dis- 
tinct injuries  justifying  a  conviction  under  s.  323 
[p.  464,  col.  2  ]  « 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Muttra,  dated  the  22nd 
July  1925. 

Mr.  S.  C.  Das,  for  the  Applicants. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT.— This  is  a  criminal  re- 
vision from  convictions  of  the  applicants 
under  s.  147  and  s,  323  read  with  s,  149  of 
the  Indian  Penal  Code  and  sentences  or 
imprisonment  and  fines.  The  learned  Ses- 
sions Judge  on  appeal  has  reduced  the  sen- 
tence soastomakethesentences  or  imprison- 
ment under  the  two  sections  concurrent. 

It  appears  that  the  complainant  Sri  Ram 
who  had  obtained  a  decree  against  Tarsia 
and  his  son  Loka  applied  for  attachment  of 
the  property  of  his  judgment-debtors,  and  in 
the  company  of  a  Commissioner,  appointed 
by  the  Cturt  went  to  the  village  to  get  the 
attachment  effected.  Naubat.  one  of  the 
applicants,  first  tried  to  prevent  the  attach- 
ment on  the  ground  that  the  cattle  sought 
to  be  attached  did  not  belong  to  the  judg- 
ment-debtors but  were  his  own  property. 
The  Commissioner,  however,  warned  him 
that  if  he  interfered  he  might  come  to 
grief.  After  some  consultation  Naubat  did 
not  prevent  the  Commissioner  from  attach- 
ing the  cattle.  But  as  soon  as  the  attach- 
ment had  been  made  and  before  the  Com- 
missioner left  the  place  the  accused  Naubat 


464 

along  with  the  other  accused  persons  came 
out  armed  with  lathis  and  raided  the  com- 
plainant Sri  Ram.  The  complainant  ran 
to  the  Commissioner  who  was  only  at  a 
distance  of  some  10  yards  from  the  house 
of  the  accused  and  requested  him  to  pro- 
tect him.  The  Commissioner,  seeing  the 
attitude  of  the  accused,  felt  himself  help- 
less to  intervene  at  that  stage.  The  assail- 
ants pursued  the  complainant  Sri  Ram 
for  some  distance,  overtook  him,  attacked 
him  and  his  brother  Behari,  and  felled 
them  down  on  the  ground.  Sri  Ram  receiv- 
ed simple  hurts  with  lathis.  Both  the 
Courts  have  accepted  this  story  of  the  pro- 
secution and  have  rejected  the  defence 
story,  that  the  injuries  were  caused  in 
self-defence.  According  to  the  medical  evi- 
dence a  large  number  of  injuries  were  caused 
to  the  complainant  and  his  brother  though 
all  of  them  were  simple  in  their  nature. 

The  main  contention  on  behalf  of  the 
applicants  is  that  their  convictions  under 
two  separate  sections  of  the  Penal  Code 
are  illegal.  The  contention  is  that  inas- 
much as  the  act  of  rioting  and  of  causing 
injuries  to  Sri  Ram  and  his  party  was  a 
part  atid  parcel  of  one  and  the  same  event 
there  should  not  be  separate  and  distinct 
convictions  and  sentences.  The  learned 
Vakil  for  the  applicants  relied  on  the  cases 
of  the  Lahore,  the  Calcutta  and  the  Madras 
High  Courts  in  support  of  hia  contention, 
but  later  on  had  to  concede  that  some 
cases  of  this  Court  are  against  him.  It  is 
unnecessary  for  me  to  refer  to  the  various 
cases  of  the  other  High  Courts  and  point 
out  thd  differences  of '  opinion.  But  I  may 
note  that  a  Fall  Bench  of  the  Bombay  High 
Court  has  taken  a  different  view  and  held 
that  separate  convictions  under  ss.  147  and 
323  are  not  illegal,  [videlihe  case  of  Queen- 
Empress  v.  Bana  Punja  (1),] 

It  is  true  that  in  the  case  of  Empress  v. 
Ram  Partab  (2)  Straight,  J.,  expressed  the 
view  that  a  member  of  an  unlawful  assemb- 
ly, some  members  of  which  have  caused 
grievous  hurt,  cannot  lawfully  be  punished 
for  the  offence  of  rioting  as  well  as  for  the 
offence  of  causing  grievous  hurt.  This 
case  was  distinguished  in  the  Full  Bench 
case  of  (juet'i-Kinpwn  v.  Ram  Sarup  (3). 
The  latter  case,  however,  is  not  directly  in 
point  becaufce  it  was  found  there  as  a  fact 

(1)  17  B.  260;  9  Ind.  Dec.  (N.  a.)  170, 

(2)  6  A.  l2l;  A.  W.  N.  (1883)  241;    3  Ind.  Dec.  (N.  s.) 

727 

(3)  7  A,  757;  A,  W,  N,  (1885)  195;  4  Ind.  Deo.  («.  s.) 

885, 


OHHiD&A  v.  ftttHfedtt.  [92  L  O.  1926] 

that  the  accused  persons  had  besides  tak- 
ing part  in  the  unlawful  assembly  commit- 
ted individual  acts  of  violence  with  their 
own  hands.  But  the  question  was  con- 
sidered by  a  Divisional  Bench  of  this  Court 
in  the  case  of  Queen-Empress  v.  Bisheshar 
(4)  and  Edge,  0.  J.,  came  to  the  conclusion 
that  separate  convictions  under  ss.  147  and 
323  read  with  s.  149  were  not  illegal  and 
that  all  that  was  necessary  was  to  make 
sure  that  the  provisions  of  s.  71  of  the 
Indian  Penal  Code  were  not  contravened. 
A  similar  view  has  been  expressed  recently 
by  a  single  Judge  of  this  Court  in  the  case 
of  Dharamdeo  Singh  v.  Emperor  (5). 

There  can  be  no  doubt  that  s.  149  creates 
no  substantive  offence  in  itself.  It  is  mere- 
ly declaratory  of  the  law  and  makes  a  per- 
son who  has  been  a  member  of  an  unlawful 
assembly  liable  for  the  offences  ^committed 
by  any  other  member  of  it.  But  s.  147  is  a 
substantive  offence  in  itself  and  makes  a 
person  guilty  of  the  offence  of  rioting  as 
distinct  from  actually  causing  any  injury 
or  hurt.  Similarly  s.  323  is '  a  distinct 
offence  in  itself.  It  would,  therefore,  seem 
obvious  that  there  is  nothing  illegal  in- 
convicting  a  person  of  offences  under  both 
these  sections.  Some  of  the  High  Courts 
which  have  taken  a  contrary  view  have  pro- 
ceeded on  the  ground  that  so  long  as  the 
hurt  is  not  actually  caused  the  offence  of 
rioting  does  not  come  into  existence. 
That  argument  may  have  some  force  in 
cases  where  only  one  hurt  has  been  inflict- 
ed; but  where  several  injuries  have  been 
caused  and  particularly  on  several  indivi- 
duals thfe  rule  is  obviously  ine&pjilicable. 
As  soon  as  the  first  injury  was  caused  to  any 
person,  force  was  used  and  the  offence  of 
rioting  was  complete.  Subsequent  injuries 
though  inflicted  in  pursuance  of  the  same 
common  object  would  be  distinct  injuries 
justifying  a  conviction  under  s.  323. 

In  the  present  case,  had  I  been  of  opinion 
that  the  sentences  passed  were  severe,  I 
might  have  remitted  the  fine  in  at  least  one 
case,  but  the  facts  stated  above  show  that 
the  accused  adopted  an  aggressive  attitude 
and  were  wholly  in  the  wrong,  and  they 
pursued  and  attacked  the  complainant  dec- 
ree-holder in  the  presence  of  the  Commis- 
sioner and  inflicted  several  injuries  on  him 
and  his  party.  I,  therefore,  decline  to  inter- 
fere with  the  sentence.  The  application 
is  accordingly  dismissed. 

z.  K.  Application  dismi&eck. 

(4)  9  A,  645;  A.W.N.  (1887)  149;  5  Ind,  Dec.  (N.  s,)  867. 

(5;  35  Ind,  Oae,  97.8;  14  A,  L,  J,  738;  17  Or,  L,  J,   " 


(92  I  0. 1926J 


PAKK1R  MAHAMUD  V.  PICHAI  TftEVAN. 


465 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  Mo,  266  ou  1921. 

October  28,  1924. 
Present: — Mr.  Justice  Phillips 

and  Mr.  Justice  Odgers. 
A.  8.  PAKKIR  MAHAMUD 
ROWTHEN  AND  ANOTHER— DEFENDANTS 
Nos.  1  AND  2 — APPELLANTS 

versus 
PICHAI  THEVAN  AND  OTHERS— PLAINTIFFS 

Nos.  2,  4,  5  AND  6 — RESPONDENTS. 
Easements   Act    (V    of     1882),     s.      1J^— -Easement, 
essentials  of — Property,      ownership    in,     claim    of — 
Easements,    whether  can     be    claimed — Long     user — 
Customary  right— Public  nuisance, 

To  create  an  easement  there  must  be  a  dominant 
and  a  servient  heritage  -and  the  right  acquired  must 
be  for  the  beneficial  enjoyment  of  the  dominant  herit- 
age [p  466,  col  2.1 

User  under  a  claim  of  ownership  of  the  property,  in 
and  over  which  such  user  is  had,  and  which  is  nega- 
tived, cannot  operate  to  found  a  right  of  easement 
over  the  property.  [ibid,] 

Chumlal  Fidchand  v.  Mangaldas  Govardhandas,   16 

B.  592,  8  Ind.  Dec.  (x.  s.)  874,  followed 

In  the  absence  of  a  finding  that  the  propeity  is 
either  private  property  or  the  property  of  the  Govern- 
ment, a  right  of  easement  by  prescription  cannot  be 
established  over  the  property.  [z6i(/.] 

The  acquisition  of  an  easement  by  prescription 
must  be  by  a  definite  person  or  persons  either  natural 
or  juristic  and  a  fluctuating  and  uncertain  body  of 
inhabitants  like  a  particular  community  of  a  village, 
cannot  acquire  such  right,  [ibid  \ 

Lutchmeeput  Singh  v.  Sadaulla  Nushyo,  9  0  698;  12 

C.  L.  R.  382,  5  Shome  L  R.  27,  4  Ind  Dec  (N  s.)  1115, 
Lord  Rivers  v  Adams,  (1878)  3  Ex  D  361,  48  L.  J.  l<Jx 
47;  39  L.  T.  3!);  27  W.  R.  381  and  Constable  v.  Nichol- 
son,   (1863)  32  L  J   G   P.  240 at  p.  214,  14  G.  B.  (N.  B) 
230;  11  W.  R.  698,  143  B.  R.  431,  135  R    R.  672,  relied 
on. 

Secretary  of  State  for  India  v.  Mathuralhai,  14  B. 
213;  7  Ind  Dec.  (N.  s )  600,  distinguished 

No  right  to  the  user  of  a  public  property  can  be 
acquired  by  custom,  where  the  user  amounts  to  a 
public  nuisance.  Such  a  custom  is  unreasonable,  [ibid.] 

Second  appeal  against  a  decree  of  the 
Court  of  the  Additional  Subordinate  Judge, 
Ramnad  at  Madura,  in  Appeal  Suit  No.  19  of 
1920,  preferred  against  that  of  the  Court 
of  the  District  Munsif,  Paramakudi,  in 
Original  Suit  No.  1154  of  1916. 

Messrs.  A.  Krishnaswamy  Iyer  and  M. 
Patanjali  Sastri,  for  the  Appellants. 

Mr.  N.  Kt  Mohanarangam  Pillai,  for  the 
Respondents. 

This  second  appeal  came  on  for  hear- 
ing on  the  1st  and  2nd  August  1923,  and 
the  case  having  stood  over  for  considera- 
tion till  the  9th  of  August  1923,  the  Court 
(Odgers  and  Hughes,  JJ.)  delivered  the 
following 

JUDGMENT. 
Odgers,  J.— This  was  a  representative 

30 


suit  brought  by  the  plaintiffs  on  behalf  of 
themselves  and  the  other  Hindu  inhabit- 
ants of  the  village  of  Perungulam,  Ram- 
nad Taluk,  against  the  defendants  who  are 
Muhammadans  and  settlers  in  that  village. 
The  plaintiffs  are  Maravars  and  they  allege 
a  right  to  throw  seedlings  into  the  tank 
adjoining  the  Ayyankoil  at  the  Mulaikottu 
festival  held  every  year.  These  seedlings 
are  raised  in  the  houses  of  the  Maravars. 
Eight  days  after  sowing  they  are  thrown 
into  the  tank.  The  seedlingg  are  watered 
with  the  water  of  the  tank  and  are  grown, 
in  mud  pots  and  manured  with  dung. 
One  of  the  plaintiffs1  witnesses  (P.  W. 
No.  3)  says  that  all  kinds  of  animal  excreta 
are  used  as  manure.  The  plaintiffs  put 
their  right  on  two  grounds:  (1)  Prescrip- 
tive title  or  easement  by  prescription  aa 
found  by  the  lower  Courts  and  (2)  Custom. 
They  ask  for  a  declaration  that  the  tank 
belongs  to  the  Hindu  community  and  for 
an  injunction  restraining  the  Muham- 
madans from  obstructing  the  performance 
of  the  Mulaikottu  ceremony.  The  defence 
traverses  the  plaint  allegations  and  alleges 
that  the  right  claimed  cannot  be  acquired 
as  the  throwing  of  seedlings  into  the  water 
pollutes  it  and  renders  it  unfit  for  drinking 
purposes.  The  District  Munsif  finds  against 
plaintiffs  on  the  question  of  ownership  but 
declared  that  the  Hindus  were  entitled  to 
throw  the  seedlings  "  after  washing  them 
so  as  to  remove  the  dung  manure  sticking 
to  it  "  and  restrained  the  Muhammadans 
from  interfering.  The  District  Munsif 
decided  that  the  Hindus  had  acquired  an 
easement  by  prescription  and  that  if  the 
seedlings  were  thrown  into  the  tank  with- 
out removing  the  dung  the  water  would 
be  polluted.  He  discusses  the  varying 
standards  of  cleanliness  in  the  matter  of 
washing  the  seedlings  and  considers  that 
the  Maravars  are  not  likely  to  be  over- 
scrupulous in  the  matter.  If  it  is  regarded 
as  a  custom,  it  may  be  unreasonable.  There 
is  no  doubt  that  the  Hindus  have  been 
throwing  seedlings  without  washing  into  the 
tank  for  a  long  time — how  long  there  is  no 
evidence  to  say.  There  is  also  no  doubt 
that  the  tank  is  not  theirs  and  that  it  ia 
the  main,  if  not  the  only,  drinking  water 
supply  for  the  village.  The  washing  of 
the  seedlings  seems  to  have  been  intro- 
duc^d  into  the  judgment  and  decree  from 
certain  proceedings  in  1915,  before  the 
Sub-Divisional  Magistrate,  under  s.  144, 
Cr.  P,  C,  This  was  an  order  rescinding  aq 


PAKKIR  MAHAMUD 

order  of  the  Sub-Magistrate,  Ramnad,  res- 
training the    throwing  of  these  seedling?. 
The  Sub-Divisional    Magistrate    found     it 
was  obviously  improper  to  throw  manure 
and  earth  into  the  tank  and  ordered  the 
Sub-Inspector  of  Police   to    see  that   the 
seedlings  were  well-washed  elsewhere    and 
when  cleaned  should  be  thrown.  Nothing  is 
said  in  the  plaint  or  the  issues  about  throw- 
ing in  washed  seedlings.    Plaintiff  witness 
No.   3's  evidence  given  in  1019  is  that  the 
seedlings  are  not  washed  to  remove  the  man- 
ure though  P.  W.  No.  4  says  the  manure  is 
thrown  on  the  bank.    He  does  not  say  the 
seedlings  are  washed.    Defendant  witness 
No.  1   says  the  fact  of  throwing  seedlings  in 
to  the  water  will  render  it  unfit  for  drinking 
purposes.    The  order  of  the  Sub-Divisional 
Magistrate  is  obviously  one  ad  hoc  and  re- 
lated to  a  single  celebration  of  the  festival. 
1  can  see  no  ground  for  thinking  the  con- 
dition of  washing  was  one  which  could  pro 
perly  be  incorporated  in  the  decree  when  the 
right  claimed  is  absolute  and  the  question  to 
be  decided   was    one  as    to   the   existence 
of    the     right    either    as     an     easement 
or   as  a  custom,    The  defendants  appeal- 
ed and  in  ground  No.  4    of  their    grounds 
of  appeal    stated  :      "  The    lower      Court 
should  have  held  that  no  custom  has  been 
proved  and  the  custom  set  up  is  unreason- 
able and    opposed    to    public  health    and 
safety  of  the  inhabitants   of  the  village.11 
The  Subordinate  Judge  found  (1)  that  the 
Hindus  had  no  exclusive  title  to  the  tank, 
(2)  the  Hindus  have  performed  the  Mulai- 
kottu  ceremony  in  the  tank  for  a  very  long 
time,  (3)  there  is  no  evidence  to  show  that 
the  throwing  of  the  seedlings   (which   the 
Subordinate  Judge  assumes  are  by    order 
of  the   Magistrate    ll  well    washed  ")  will 
pollute  the  water  and  the  District  Munsif 
was  not    justified    in     inferring    this,   (4) 
assuming  the  water     would    be  polluted, 
have  the  Hindus   established  a  customary 
right  or  right  by  way  of  easement  ?    As  it 
is  nobody's  case  that    the  tank  is  public 
property  he  holds    that  the  Hindus    have 
acquired  an  easement  by  prescription  and 
confirmed  the  District  Munsif 's  decree.    I 
think  the  Subordinate    Judge  is  wrong  in 
saying  there  is  no  evidence  that  the  throw- 
ing of  the  seedlings  pollutes  the  water  for 
drinking  purposes.    See  P.  W.  No.  3  and 
D,   W.    No.    1.    The  question    is,  are    the 
lower  Courts  right  in  the  view  of  the  law 
they  have   taken   as  establishing  an  ease- 
juent  by  prescription  ?    They  have  neither 


V.  PICHAI  TBEVAN.  [92  I.  0.  1926] 

of  them  come  to  a  conclusion  on  the  ques- 
tion of    custom.    The  Subordinate  Judge 
rightly  says  that  if  the  tank  be  public  and 
the  throwing  of  the    seedlings  is  a  public 
nuisance  no  right  could  be  acquired  by  long 
user  [see  Municipal  Commissioners  of  the 
Suburbs   of  Calcutta  v.  Mahomed  All  (1). 
The  acquisition  of    an    easement  by   pre- 
scription is  governed  by  s.  15,   Easements 
Act  :  — "  Where  a  right  of  way  or  any  other 
easement  has  been    peaceably  and  openly 
enjoyed  by  any  person  claiming  title  thereto, 
as  an  easement,  and    as  of  right  without 
interruption,  and  for  20  years  the  right.  ,  . 
shall  be  absolute.1'    To  begin  with  has  this 
right  been  enjoyed    as  an  easement  ?    An 
easement  is  defined  in  s.  4    of  the  Act  as 
"  a  right  which  the  owner  or  occupier  of 
certain  land    possesses,    as    such,  for  the 
beneficial  enjoyment    of  that    land,  to  do 
and    continue     to     do    something,    or    to 
prevent  and    continue    to    prevent    some- 
thing being  done,  in  or  upon,  or  in  respect 
of,  certain  other  land  not  his  own.1'    The 
tank  has  clearly  been  held    not  to  be  the 
property  of  the  Hindus.     The  defendants 
in   their  written  statement   seem  to  intend 
to  plead  (para.  31)  that  the  tank  is  public. 
They  apparently  do  not  say  it  belongs  ex- 
clusively to  themselves.    To  create  an  ease- 
ment there  must   be  a    dominant  and   a 
servient  heritage — and  the  right  acquired 
must  be  for  the  beneficial  enjoyment  of  the 
dominant  heritage.    If  the  right    claimed 
under  s.    15  be    against  Government  the 
period  of  user  to  be  proved    must  be  60 
years,    The  right  is  claimed  primarily  on 
the  ground    of  ownership  of  the    tank  by 
the  Hindus,   but    user  under    a  claim    of 
ownership  of  the  tank,  in  and  over  which 
such  user  is  had,  and  which  is  negatived, 
cannot  operate  to  found  a  right  of  easement 
over  the  tank  (vide  Chunilal  Fulchand  v, 
Mangaldas   Govardhandas    (2).    In  the  ab- 
sence of  a  finding  that  the  tank   is  either 
private  property    or    the   property  of  the 
Government,  I  am  of  opinion  that  a  right 
of  easement  by  prescription  cannot  be  estab- 
lished.   Another  objection  is  taken  for  the 
appellants,  viz.,    that   the   acquisition  by 
prescriptiot  must  be  by  a  definite  person 
or  persons   either  natural  or  juristic,  and 
that  a  fluctuating  and  uncertain  body  like 
the  Marava?    inhabitants   of    this   village 
cannot  acquire.    In  Lutchmeeput  Singh  v, 


(1)  7  B,  L.  R.  409;  16  W.  E.  6  Or. 
»  16  B,  592;  8 


;  8  Ind,  Dec,  (w,  a,)  874, 


[92 1.  0.1926]' 


PAkKIR  MAHAMDD  V.  PlOHAl  f HEVAtf. 


467 


Sadaulla  Nushyo  (3)  it  was  held  no  defined 
or  ascertained  person  had  been  in  the  con- 
tinuous possession  of  a  fishing  right  which 
had  been  exercised  by  the  tenants  of   cer- 
tain Pargannahs.    In  Lord  Rivers  v.  Adams 
(4)  a  right  to  profits  a  prendre  was  claimed 
by  the  inhabitants  of  a  parish.    Kelly,  O.B.,  - 
said  after  holding  that  there  could  not  be 
a  custom    in  such  a  case,    "  And  for  the 
same    reasons,  and  for  other  reasons,  there 
cannot  be  a  prescription,  and  there    could 
not  be  a  valid  grant  unto  so  fluctuating  a 
body  and  a  body  so  incapable  of  succession 
in  any  reasonable  sense  of  the  word  so  as  to 
confer  a  right  on  each  succeeding  inhabit- 
ant."    The  learned  Chief  Baron  also  quotes 
Willes,  J.,  in    Constable   v.  Nicholson  (5): 
"The  prescriptive  right  is  not  claimed  for 
a  corporation  or  persons  taking  by  succes- 
sion (it  was  claimed  there  by   the  inhabit- 
ants of  a  township),  but  only  for  a  fluctuat- 
ing body  of  inhabitants.    The  prescription 
pleaded  is  a  grant  to  that  body,  but  not  so 
as  to  have  the  effect  of  incorporating  them. 
It  is  clear  that  such  a  right  cannot  exist/' 
In  Secretary  o/  State  for  India  v.  Mathura- 
bhai  (6)  the    right  of  free    pasturage  was 
distinguished    from    these  cases    on     the 
ground  that  such  a  right  has  always    been 
recognized  by  Government  as  a  right  be- 
longing to  certain  villages  and  must  have 
been  acquired  by  custom  or  prescription. 
This  is  a  very  different   case  and  has,    in 
my  view,  no  bearing   on    the  point.    For 
these  reasons    I  am  of  opinion    that    the 
finding  of  the  lower  Court  that  the  right 
of  throwing  seedlings  into  the    tank  has 
been  acquired  by  the  Hindus  as  an   ease- 
ment by  prescription  is  not  in  accordance 
with  law  and  must    be  set    aside.    The 
question  remains  :    Has  the  right  been  ac- 
quired by  custom  ?    The  remarks  of    the 
District  Munsif  and  Subordinate  Judge  on 
this  point  have    already    been     set    out. 
Neither  of  them  records  a  finding  on    the 
point.    If  such  a   custom  is    established, 
various  points  will  have  to  be  considered 
as  to  its  certainty  and  reasonableness  (inter 
alia).    If  the  tank  is  a  public  tank  there 
will  have  to    be    considered  whether    the 
throwing  of  these  seedlings  is  a  nuisance. 

(3)  9  C.  698;  12  C.  L.  R.  382;  5  Shome  L.  R,  27;  4 
Ind.  Dec.  (N.  8)1115. 

(4)  (1878)  3  Ex.  D.  361;  48  L.  J.  Ex.  47;  39  L.  T,  39; 
*7  W.  R.  381. 

(5)  (1863)  32  L.  J.  0, 
to,  8.)  230;  11  W.  R,  6! 

(6)  14  B,  213;  7  Ind,  Dec,  (*,  B.)  600. 


The  case  must  go  back  to  the  Subordinate 
Judge  for  a  finding  in  the  light  of  the 
above  judgment  whether  the  right  of  throw- 
ing seedlings  into  the  plaint  tank  at  the 
Mulaikottu  festival  has  been  acquired  by 
the  plaintiffs  (Hindus)  by  reason  of  a  valid 
custom,  Fresh  evidence.  Finding  six  weeks 
and  objections  seven  days.  Question  of  costs 
reserved. 

1  may  add  that  I  have  no  objection  to 
the  last  paragraph  in  the  judgment  about 
to  be  delivered  by  my  learned  "brother  and 
the  question  may  be  reserved  for  argu* 
ment  if  and  when  it  arises,  though  I  take 
leave  to  doubt  at  this  stage  if,  a  custom  for 
doing  a  definite  thing  being  established,  it 
is  open  to  a  Court  to  decree  a  modification 
of  it  or  something  else. 

Hughes,  J* — I  agree  that  no  case  of  ac* 
quisition  of  right  of  easement  by  prescrip- 
tion has  been  made  out  and  that  the  case 
must  go  back  to  the  Subordinate  Judge 
for  a  finding  on  the  question  whether  the 
right  of  throwing  seedlings  into  the  plaint 
tank  at  the  Mulaikottu  festival  has  been 
acquired  by  the  plaintiffs  by  reason  of  a 
valid  custom  and  I  agree  that  fresh  evi- 
dence may  be  taken. 

I  would,  however,  reserve  for  decision^ 
after  receipt  of  the  finding,  any  question 
that  may  arise  as  to  whether  the  custom^ 
if  established,  may  be  restricted  in  any 
of  its  incidents  by  incorporating  a  condition 
in  the  decree. 


P.  240  at  p.  244;  14  0.  B. 
3;  143  E.  R,  434;  135  R.  R, 


In  compliance  with  the  order  contained 
in  the  above  judgment,  the  Additional  Sub* 
ordinate  Judge  of  Ramnad  at  Madura  sub-* 
mitted  the  following 

FINDINGS:  -In  obedience  to  the  order 
of  the  High  Court  made  in  8.  A.  No.  266  of 
1921  on  9th  August  1923,  I  beg  to  submit 
the  following  finding  on  the  point: — 

"  Whether  the  right  of  throwing  seed- 
lings into  the  plaint  tank  at  the  Mulai- 
kottu festival  has  been  acquired  by  the 
plaintiffs  (Hindus)  by  reason  of  a  valid 

custom  ?  " 

******* 

On  the  evidence  I  find  that  the  plaint- 
iffs Maravars  have  been  throwing  seedlings 
into  the  plaint  urani  indifferently  with  and 
without  manure  for  a  considerable  period 
of  time.  It  may  safely  be  asserted  that  the 
practice  has  been  in  vogue  for  even  over 
sixty  years.  There  is  no  doubt  that  the 
throwing  of  the  seedlings  into  the  tank 
would  certainly  render  the  water  unfit  fo$ 


468 


drinking  purposes   and  much  more    so 
they  are  thrown  with  manure. 

The  result  is  that  I  find  that  the  custom 
has  been  well-established  but  that  the 
custom  is  unreasonable  in  so  far  as  it  put- 
refies the  urani  water  which  is  used  by  the 
public  for  drinking  purposes. 


MAQSUD  ALT  V.  ABDULLAH. 

i! 


This  second  appeal  coming  on  for  final 
hearing,  after  the  return  of  the  finding  of 
the  lower  Appellate  Court  upon  the  issue 
referred  by  this  Court  for  trial,  the  Court 
delivered  the  following 

JUDGMENT.— We  accept  the  Sub- 
ordinate Judge's  finding  that  the  custom  is 
unreasonable  an  din  allowance  of  the  second 
appeal  dismiss  plaintiffs'  suit  with  costs 
throughout. 

v.  N.  v.  Appeal  ^dismissed. 

N,  H. 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  391  OF  1923. 

November  10,  1924. 
Present; — Mr.  Justice  Lindsay  and 
Mr.  Justice  Kanhaiya  LaL 
MAQSUD  ALI  AND  OTHERS- 
PLAINTIFFS  —APPELLANTS 

versus 

ABDULLAH  AND  OTHERS- 
DEFENDANTS— RESPONDENTS. 

Custom — P?*c-e/?ip(zon--Wajib-ul-arz,  entry  in,  con- 
struction of — Preferential  right  of  pre-emption. 

A  w&]ib-ul-arz  classified  the  different  categories  of 
pre-emptors  aa  follows  • — 

(1)  Own  brothers  ; 

(2)  Co-sharers  in  the  same  patti ; 

(3)  Co-sharers  in  other  paths 

A  later  iua)ib-ul-arz  gave  only  one  classification  of 
pre-emptors,  namely  ----"Own  brothers  and  co-sharers 
of  the  village";  and  it  was  provided  that  if  none  of 
these  people  wished  to  pre-empt,  a  sale  may  be  made 
to  strangers  • 

Held,  (1)  that  the  two  wajib-ul-araiz  must  be  read 
together  inasmuch  as  the  right  of  pre-emption  record- 
ed therein  was  m  fact  the  same,  the  later  record  having 
been  prepared  in  a  less  careful  manner  than  the  one 
whiih  preceded  it ;  [p.  469,  col.  1  ] 

(2)  that  under  the  terms  of  the  wa^b-ul-arz  an 
own  brother  of  the  vendor  had  a  better  right  of  pre- 
emption than  a  co-sharer  in  the  village,  [ibid.] 

Second  appeal  from  a  decree  of  the  Sub- 
ordinate Judge,  Meerut. 

Mr.  Harendm  Krishna  Mukherji,  for  the 
Appellants. 

[Messrs.  G.  W.  Dillon  and  Sheo  Dihal 
Sinha,  for  the  Respondents, 

JUDGMENT.— In  this  case  we  are 
concerned  with  the  interpretation  of  two 


[92  I.  0.  1926] 

wajib+ul-arzes.  The  question  to  be  decid- 
ed is  whether  the  plaintiff,  who  was  Nasir 
Ullah  Khan  now  represented  by  the  present 
appellants,  Maqsud  Ali  and  others,  was  en- 
titled to  a  preference  in  the  matter  of  exer- 
cising a  right  of  pre-emption. 

The  vendor  of  the  property  in  dispute 
was  own  brother  of  Nasir  Ullah,  and  the 
purchaser  Kabul  Khan  who  is  now  repre- 
sented by  two  defendants,  Ahsan  Ali  and 
Abdullah,  was  a  co-sharer  in  the  village  and 
also  a  relation,  but  a  distant  relation,  of  the 
vendor. 

The  Court  of  first  instance  gave  the  plaint- 
iff a  decree  for  pre-emption  on  a  finding 
that  on  the  language  of  the  record  of  custom 
as  contained  in  the  two  wajib-ul-arzes  the 
plaintiff  as  own  brother  of  the  vendor  had 
better  right  than  the  vendee  who  was  a  co- 
sharer  only  and  in  any  case  a  more  distant 
relation. 

The  lower  Appellate  Court  has  reversed 
the  finding  of  the  Court  of  first;  instance  on 
this  point  being  of  opinion  that  the  plaintiff 
as  own  brother  of  the  vendor  had  no  better 
right. 

Another  question  was  raised  in  the  Court  of 
first  instance.  It  was  pleaded  by  the  vendee, 
that  the  plaintiff  had  full  knowledge  of  the 
sale  sought  to  be  pre-empted  and  that  he 
had  acquiesced  therein  so  as  to  be  no  longer 
entitled  to  assert  a  claim  for  pre-emption. 
The  Court  of  first  instance  held  that  the 
transaction  now  in  dispute  was  carried  out 
without  the  knowledge  of  the  plaintiff  and 
that  there  was  no  reason  to  debar  him 
from  maintaining  the  suit. 

On  this  question  of  the  consent  or  acquiesc- 
ence of  the  plaintiff  the  judgment  of  the 
lower  Appellate  Court  is  silent. 

We  have  decided  to  deal  with  this  ques- 
tion of  fact  ourselves  as  it  is  not  worth 
while  sending  the  case  back  to  the  lower 
Appellate  Court  for  finding.  In  all  pro- 
bability the  case  would  come  before  some 
other  Judge  than  the  one  who  heard  the 
appeal. 

Dealing  with  the  first  question,  namely, 
the  preferential  right  of  the  plaintiff  that 
has  to  be  considered  in  connection  with  the 
two  documents  which  are  filed,  Ex.  3  and 
Ex.  C.  Exhibit  0  is  a  copy  of  the  docu- 
*  ment  known  as  the  wajib-ul-arz  prepared 
by  Mohar  Singh. 

In  this  document  there  is  a  classification 
of  pre-emptors  which  reads  as  follows  : — 

(1)  Own  brothers; 

(2)  Co -sharers  in  the  same  patti\ 


[92  I.  0.  1926j  MAQSUD  AU  v, 

(3)  Co-sharers  in  other  pattis. 

The  second  document,  namely,  the  copy 
of  the  wajib-ul-arz  prepared  at  the  time  of 
Munshi  Nasir  Ali  Khan,  gives  only  one 
classification  of  pre-emptors,  namely :  "Own 
brothers  and  co-sharers  of  the  village."  It  is 
provided  that  if  none  of  these  people  wish 
to  pre-empt  a  sale  may  be  made  to  strangers. 

The  learned  Subordinate  Judge  laid  great 
stress  on  the  wajib-ul-arz  of  Nasir  Ali 
Khan  that  being  laterin  date,  although  as  we 
understand,  the  difference  between  the  dates 
of  the  preparation  of  these  two  wajib-ul-arzes 
cannot  have  been  more  than  six  or  seven 
years.  The  Judge  was  of  opinion  that  on 
the  language  of  the  later  wajib-ul-arz  own 
brothers  and  co-sharers  in  the  village  were 
all  lumped  together  in  one  category  in  such 
a  way  that  a  brother  could  have  had  no  pre- 
ferential right  over  any  other  person  who 
happened  to  be  a  co-sharer  in  the  village 

On  the  other  hand,  it  is  equally  clear  that 
in  the  Wajib-ul-arz  prepared  by  Mohar 
Singh  the  own  brothers  of  the  vendor  stood 
in  a  category  by  themselves  and  had  pre- 
ferential right  over  other  persons  who  were 
co-sharers  in  the  patti  or  in  thevillage. 

We  are  not  disposed  to  take  the  view  taken 
by  the  Court  below,  and  it  seems  to  us  that 
the  two  wajib-ul-arzes  ought  to  be  read  to- 
gether. We  can  hardly  think  that,  having 
regard  to  the  fact  that  the  earlier  record 
wasjmadein  favour  of  own  brothers,  the  later 
record  can  have  been  correctly  prepared  if 
it  is  meant  to  indicate  that  the  own  bro- 
thers of  the  vendor  were,  put  on  exactly  the 
same  footing  as  any  other  co-sharer  in  the 
village.  It  seems  to  us  the  more  reasonable 
construction  to  adopt  that  the  right  of  pre- 
emption recorded  in  these  two  documents 
was  in  fact  the  same,  and  all  that  appears 
is  that  when  the  later  record  was  prepared  it 
was  prepared  in  a  less  careful  manner  than 
the  one  which  preceded  it.  On  the  whole, 
we  think  that  a  distinct  case  is  made  out 
for  holding  that  under  the  custom  of  pre- 
emption, which  apparently  is  not  denied,  an 
own  brother  of  the  vendor  has  a  better  right 
to  take  the  property  than  a  co-sharer  in  the 
village.  That  being  so,  the  late  plaintiff 
Nasir  Ullah  was  entitled  to  pre-  empt. 

There  remains  the  other  question  which 
is  a  question  of  fact. 

Nasir  Ullah  denied  that  he  in  any  way 
acquiesced  in  the  sale  which  he  was  seek- 
ing to  pre-empt.  The  sale-deed  in  dispute 
was  executed  on  the  9th  February,  1921, 
and  was  registered  on  the  same  date.  It  is 


469 

proved  that  on  the  same  date,  that  is  to  say, 
9th  Eebruary,  1921,  the  plaintiff  Nasir  Ullah 
and  his  brother  Muhammad  Khan  and  one 
Daulat  executed  another  sale-deed  relating 
to  property  in  another  village  and  this  deed 
was  executed  in  favour  of  the  same  pur- 
chaser Kabul  Khan. 

It  was  sought  by  means  of  this  later  docu- 
ment and  also  by  means  of  oral  evidence,  to 
show  that  the  plaintiff  was  fully  cognizant 
of  the  sale  which  he  is  now  claiming  to  pre- 
empt, and  that,  therefore,  his  suit  is  not 
maintainable. 

The  document  relating  to  the  sale  in  suit 
was  attested  by  two  witnesses  who  were 
examined  in  Court.  They  deposed  that 
the  plaintiff  was  present  on  the  9th  Febru- 
ary, 1921,  when  both  documents  were  being 
drawn  up  by  the  same  scribe.  They  do  not, 
however,  say  that  the  plaintiff  was  given  any 
opportunity  of  taking  the  property  or  that 
such  an  offer  having  been  made  was  refused 
by  him.  All  that  the  evidence  of  witnesses 
amounts  to  is  that  he  was  present  on  the 
spot.  Another  witness  was  called  who  went 
further  than  this.  He  deposed  definitely 
that  the  plaintiff  was  present  when  the  sale- 
deed  in  dispute  was  executed  and  that  he 
had  been  asked  to  take  the  property  and  had 
refused  on  the  ground  that  he  had  not  the 
money. 

It  is  the  fact  that  this  second  document 
relating  to  the  other    village,   a   document 
which  was  registered  on  the   2nd  of  March, 
1921,  bears  the   signature    of  Nasir  Ullah. 
He  was  asked  in  the  witness-box  to  explain 
this  and  he  deposed  that  he  put  his    signa- 
ture to  it,  not   on    the  9th  February,   1921, 
but  on  the  date  on  which  the  document  was 
presented  for  registration,  and   this  state- 
ment the  Court  of  first  instance  believed. 
It  would  be  difficult  for  us  to  differ  on  this 
matter  with  the  finding  of  the  first   Court. 
There  is  something  suspicious  about  this 
other  document  of  9th  February,  1921,  which 
is  marked  Ex.  D.    We  have  already  men- 
tioned that  there  were  three  vendors    under 
this  deed,  Muhammad   Khan,   Nasir  Ullah 
Khan  and    Daulat.    The    document  as  it 
stands  bears  the  signature  of  Muhammad 
Khan  and  the  thumb- impression  of  Daulat. 
Between  these  two  signatures    we  find  a 
second  signature  made  by  the  vendor  Mu- 
hammad  Khan    and    underneath     this    is 
written  the  name  of  Nasir  Ullah  Khan.    It 
looks  to  us,  therefore,  as  if  the  signature  of 
Nasir   Ullah   had    been  appended   to   this 
document  at  a  later  date  and  it  is  a  suspicious 


470 


NEBLAM  VBNKATAKATANAMMA  V.  VTNJAMOOR1  TARAHA, 


*••  U- 


Circumstance  which  has  not  been  explain- 
ed that  the  signature  of  one  of  the  vendors 
should  appear  twice  on  the  document.  On 
the  whole,  we  think  that  the  Court  of  first 
instance  was  justified  in  coming  to  the  con- 
clusion that  there  was  no  reliable  evidence 
to  show  that  the  plaintiff  had  acquiesced  in 
the  sale  in  dispute  and  that  he  was  thereby 
debarred  from  asserting  his  claim  for  pre- 
emption. Our  finding  of  fact  is  accordingly 
in  agreement  with  that  of  the  Court  of  first 
instance.  It  follows  from  this  that  the 
appeal  is  allowed.  We  set  aside  the  decree 
of  the  Court  below  and  restore  the  decree  of 
the  Court  of  first  instance.  The  plaintiffs- 
appellants  will  be  entitled  to  their  costs  here 
and  in  the  lower  Appellate  Court  and  the 
costs  in  this  Court  will  include  fees  on  the 
higher  scale. 

We  understand  that  after  the  first  decree 
the  pre-emption  money  was  deposited  in 
Court.  Whether  it  is  there  yet  or  not  we 
do  not  know,  but  if  it  is  not,  we  think  that 
the  plaintiff  ought  to  be  given  an  opportun- 
ity to  re-deposit  the  money.  We  give  them 
two  months1  time  from  the  date  of  this 
decree.  In  default  of  deposit  so  made  the 
suit  will  stand  dismissed  with  costs  in  all 
Courts  including  in  this  Court  fees  on  the 
higher  scale. 

z  K,  Appeal  allowed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No,  256  OP  1923. 

August  3.  1925. 

Present:  —Mr,  Justice  Jackson. 

NEELAM  VENKATARATANAMMA- 

PLAIMTIFF — APPELLANT 

versus 

VINJAMOORI  VARAHA  NARASIMHA- 
CHARU — DEFENDANT—RESPONDENT. 

Registration  Act  (XVI  of  1908),  s.  ^^-Unregistered 
deed  of  gift,  admissilrility  of — Possession,  nature  of— 
Inte7ition  to  make  gift,  proof  of. 

An  unregistered  deed  of  gift  affecting  an  interest 
in  immoveabJe  property  cannot,  by  virtue  of  the  pro- 
visions of  s.  49  of  the  Registration  Act,  be  received  in 
evidence  either  to  prove  the  fact  of  the  gift  or  to 
prove  that  the  possession  of  the  donee  over  the  pro- 
perty purported  to  be  gifted  was  that  of  an  owner 
and  could  be  referred  to  the  gift  The  deed  can,  at 
the  most,  be  referred  to  as  evidence  of  an  intention 
to  make  a  gift  [p.  470,  col.  2,  p  471,  col.  1.] 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge, 
Cocanada,  in  A,  8,  No,  84  of  1921,  preferred 


against  that  of  the  Court  of  the  Princi- 
pal District  Munsif,  Cocanada,  in  O.  S, 
No.  32  of  1920, 

Mr.  B.  Satyanarayana,  for  the  Appellant. 

Mr.  V.  Govindachari,  for  the  Respondent, 

JUDGMENT.— Appeal  from  the  decree 
in  A.  8.  No.  84  of  1921  on  the  file  of  the 
Court  of  the  Subordinate  Judge  of  Cocanada 
in  0,  S,  No.  32  of  1920  on  the  file  of  the 
Court  of  the  Principal  District  Munsif  of 
Cocanada. 

Plaintiff  sues  for  certain  portions  of  & 
house-site.  Both  Courts  dismissed  his  suit 
and  plaintiff  appeals. 

Issue  No.  II.  Whether  plaintiff  was  in 
possession  within  12  years  prior  to  suit,  is 
a  question  of  fact  on  which  both  Courts  find 
against  plaintiff;  and  he  only  seeks  to 
traverse  that  finding  in  this  second  appeal 
by  urging  that  the  learned  Subordinate 
Judge  erred  in  accepting  as  evidence  the 
unregistered  gift  deed  Ex.  V.  There  is  no 
doubt  that  Ex  V  is  a  transaction  affecting 
an  interest  in  immoveable  property  and  as 
such  cannot  be  received  in  evidence  unless 
it  is  registered.  The  Subordinate  Judge, 
however,  relying  upon  Varada  Pillai  v. 
Jeevarathnammal  (1)  has  admitted  the 
document  for  the  purpose  of  proving  that 
possession  was  adverse.  In  the  reported 
case  it  was  sought  to  prove  a  gift,  for  which 
there  was  no  registered  deed,  by  its  recital 
in  a  petition  which  also  had  been  regis- 
tered. The  Judicial  Committee  decided 
that  the  petition  could  not  serve  as  proof  of 
the  gift,  but  turning  to  another  question, 
what  was  the  nature  of  Doraisami's  posses- 
sion, the  petition  could  be  admitted  in 
evidence.  Thus  the  petition  was  not  evi- 
dence of  a  gift,  but  evidence  that  some  one 
had  petitioned  on  the  footing  of  a  gift.  Care 
must  be  taken  not  to  extend  this  principle 
too  far.  For  instance,  in  the  present  case, 
the  Court  cannot  receive  Ex.  V  in  evidence 
to  prove  a  gift  and  then  infer  that  the 
defendant's  possession  was  adverse;  and 
justify  its  acceptance  of  Ex.  V  on  the 
ground  that  it  confines  itself  to  the  in- 
ference and  is  not  concerned  with  the  fact 
of  the  gift;  because  the  inference  is  only 
based  upon  the  fact;  and  if  the  fact  cannot 
be  proved  by  the  unregistered  instrument, 
nothing  can  be  proved  on  which  to  found  an 
inference. 

(1)  53  Ind.  Gas  901;  43  M.  244;  (1919)  M.  W.  N.  724; 
10  L.  W.  679;  24  0  W.  N.  346:  38  M.  L.  J.  313;  18  A. 
L  J.  274;  43  M.  244;  46  I.  A.  285,  2  V.  P.  L,  R.  (P.  0.) 
64;  22  Bom,  L,  B,  444  (P,  0.). 


MOLRAJ  V.  INDAR  SINGH, 


[92  I.  L\  1926] 

But  the  document  can  go  in,  not  to  prove 
any  definite  gift,  but  to  prove,  for  what  it  is 
worth,  that  there  was  talk  of  making  some 
assignment  at  that  date.    That,  at  least,  is 
how  I  interpret  the  ruling  in  Varada  Pillai 
v.   Jeevarathnammal  (1).    In  Veerappan  v. 
Mylai  U  day  an  (2)  I  had  occasion  to  examine 
this  very  question  with  the  aid  of  the  ruling 
in    Saraswatamma  v.  Paddayya  (3)  and  I 
observed:    "In  my  opinion  if  the  document 
is  filed  on  the  strict  understanding  that  it 
must  not  evidence  any  transaction  affecting 
immoveable   property,    its     scope    in   the 
majority  of  cases  will  be  very  small.    At 
most  I  think  it  will  evidence,  as    observed 
by  Venkatastibba  Rao,  J.,  an  intention."  In 
the  present    case,    I  doubt  if  Ex.  V  could 
evidence  more  than  that  the  house  site  was 
too  small  to  admit  of    a  backyard,  and  the 
vendor    was  corresponding   about  it.    But 
even    on  that  assumption,  and  supposing 
that  he  read  the  whole  document,  I  do  not 
consider    that  the    finding  of  the  learned 
Subordinate  Judge    is  vitiated.     There  is 
direct  oral  evidence  of  defendant's  adverse 
possession  and  the  District  Munsif  found  in 
his  favour  even  after  rejecting  Ex.  V  as 
inadmissible.      There  is    no  dispute   about 
the  exact    areas    occupied    and  Ex.  V  is 
really  only  useful  in  corroborating  the  oral 
evidence  by  showing  that  at  the  date  when 
it   was  written,  there  was  trouble  about  the 
insufficiency  of  the  site.     When  it  comes  to 
considering  the     actual    measurements   in 
Ex.  V  they  are    of  more  help  to  the  appel- 
lant than  to  the  defendant  because  there  are 
certain  discrepancies    between  the  original 
area  in  the  document  and  that  now  occupied, 
vide  para.  6   of  the  lower  Appellate  Court's 
judgment. 

So  it  cannot  be  argued  that  the  appellant 
was  prejudiced  by  their  consideration;  and 
all  that  really  operated  upon  the  mind  of 
the  learned  Subordinate  Judge,  in  my 
opinion,  was  the  part  of  Ex.  V  which  can 
legitimately  be  regarded  as  evidence. 

Accordingly  I  see  no  reason  to  remand  the 
suit  for  fresh  proceedings. 

No  other  ground  of  appeal  was  raised  or 
appears  to  be  valid. 

The  appeal  is  dismissed  with  costs. 

v,  N.  v. 

z.  K.  Appeal  dismissed 

(2)  87  lad.  Gas.  285;  (1925)  A.  I.  R.  (M )  1097. 
3)  71  Ind.  Gas.  274;  46  M.  349;  44  M.  L.  J.  45; 
(1923)  A,  I.  R,  (M.)  297,  18  L,  W.  418. 


471 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  45  OF  1925 

October  21,  1925. 
Present  ;— Mr.  Justice  Sulaimau  and 

Mr  Justice  Mukerji. 
Pandit  MULRAJ— PLAINTIFF- 
APPELLANT 

versus 

INDAR  SINGH  AND  OTHERS — DEFENDANTS 
— RESPONDENTS. 

Transfer  of  Property  Act  (IV  of  1&82),8  Jt3,  appli- 
cation of -Transfer  by  reversioner— Knowledge  of 
transferee. 

A  mortgagee  from  a  person  who  has,  on  the  date 
of  mortgage,  only  a  reversionary  interest  m  the  pro- 
perty mortgaged,  does  not,  if  he  is  aware  of  mortga- 
gor's true  interest  in  the  property,  acquire  any  right 
in  the  property  on  the  death  of  the  life-estate-holder, 
Pandin  Bangararn  v  Karumoory  tfubbaraju,  8  Ind. 
Oas  388,  34  M  1,>9,  8  M  L  T  285  and  Jagannath  v. 
Dibbo,  1  Ind  Cas  818,  6  A  L.  J.  49  at  p  51;  31  A. 
53,  followed 

It  is  only  when  a  transferee  is  led  into  the  belief  of 
absolute  title  on  the  part  of  the  transferor  and  acts 
on  the  representation  of  the  transferor,  that  he  is 
entitled  under  s  43,  Transfer  of  Property  Act,  to  take 
advantage  of  the  fact  that  the  transferor  later  on 
becomes  the  owner  of  the  property.  If  that  were  not 
so  ss  6  and  43  of  the  Act  would  conflict. 

Second  appeal  against  a  decree  of  the 
Additional  District  Judge,  Saharanpur, 
dated  the  22nd  September  1924. 

Messrs.  L.  M.  Banerji  and  N.  P.  Asthana, 
for  the  Appellant. 

JUDGMENT,— The  facts  involved  in 
this  appeal  are  as  follows: — The  appellant 
who  was  the  plaintiff  in  the  Court  below 
obtained  a  mortgage  from  the  respondent 
No.  1  Inder  Singh  in  respect  of  several  pro- 
perties out  of  which  only  one  is  in  dispute 
in  this  appeal.  In  this  property  Inder  Singh 
had  only  a  reversionary  interest  on  the  death 
of  a  certain  lady  at  the  date  of  the  mort- 
gage. After  the  mortgage  the  lady  died 
and  the  contesting  respondent,  viz.,  Babu 
Girdhari  Lai,  obtained  at  an  auction-purchase 
this  property.  When  the  appellant  put  his 
mortgage  into  suit  Babu  Girdhari  Lai 
raised  th^  plea  that  the  mortgage  of  the 
property  in  question  by  Inder  Singh  was 
invalid  and  did  not  convey  any  right  to  sell 
it.  The  appellant  relied  on  s.  43  of  the 
Transfer  of  Property  Act  and  the  question 
arose  whether  the  plaintiff  was  or  was  not 
aware  at  the  date  of  the  mortgage  of  the  fact 
that  Inder  Singh's  interest  in  the  property 
in  question  was  only  that  of  a  reversionary 
and  not  that  of  an  absolute  proprietor.  The 
lower  Appellate  Court  has  found  in  the 
clearest  terms  possible  that  the  plaintiff 
was  aware  of  the  true  interest  of  Inder 
Singh  in  the  property. 


472 


VBNKATASDBBA  BAG  V.  ADINARA^ANA  RAO. 


[92  L  C.  1926] 


Now  the  question  is  whether  in  the 
circumstances  s.  43  of  the  Transfer  of  Pro- 
perty Act  would  apply  and  would  entitle 
the  plaintiff  to  sell  the  property.  If  the 
answer  be  in  the  affirmative  a  further  ques- 
tion would  arise  whether  Babu  Girdhari 
Lai  would  be  bound  to  give  up  the  property 
in  the  circumstances  of  the  present  case. 

We  are,  however,  of  opinion  that  s.  43  of  the 
Transfer  of  Property  Act  does  not  apply  in 
favour  of  the  appellant.  Section  43  is  based 
on  equitable  principles.  It  is  only  when  a 
transferee  is  led  into  the  belief  of  absolute 
title  on  the  part  of  the  transferor  and  acts 
on  the  representation  of  the  transferor, 
that  he  is  entitled  to  take  advantage  of 
the  fact  that  the  transferor  later  on  be- 
comes the  owner  of  the  property.  If  that 
were  not  soss.  6  and  43  of  the  Transfer  of 
Property  Act  would  conilict.  Section  43  of 
the  Transfer  of  Property  Act  opens  with 
these  words  "where  a  person  erroneously  re- 
presents". The  word  "represents"  clearly 
shows  that  the  person  in  whose  favour  the 
equity  is  allowed  to  operate  must  have  acted 
on  the  representation.  The  point  has 
really  been  settled  by  numerous  authorities 
and  it  would  be  enough  to  quote  two  cases 
only  to  support  our  decision,  vide  Pandiri 
Bangaram  v.  Karumoory  Subbaraju  (1)  and 
Jagannath  v.  Dibbo  (2). 

In  view  of  these  decisions  the  other 
points  raised  in  the  grounds  of  appeal  do 
not  arise. 

The  appeal  is  dismissed  under  0.  XLI, 
r.  11  of  the  0.  P.  C. 

N.  H  Appeal  dismissed. 

(1)  8  Ind.  Cas.  388,  34  M.  159,  8  M.  L.  T.  285 

(2)  1  lad.  Cas,  818;  6  A.  L.  J.  49  at  p.  51;  31  A.  53, 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.   1496  OF  1922. 

July  29,  1925. 

Present:— Mr.  Justice  Jackson. 

Karnam  VENKATASUBBA  RAO— 

PLAINTIFF — APPELLANT 

versus 

ADINARAYANA  RAO  AND  OTHERS— 
DEFENDANTS— RESPONDENTS. 

Inam,  service — Enfranchisement — Grant  to  member 
of  joint  family  -  Grant  to  Hindu  widow  and  other 
persons— PJstat  z  conferred  on  widow— Absolute,  or 
limited  estate. 


The  enfranchisement  of  a  service  inam  does  not 
enure  to  the/benefit  of  the  joint  family  of  the  holder 
but  only  ofr'the  holder  himself,  [p.  473,  col  1.] 

Venkataj  Jagannadha  v  Veerabhadrayya,  61  Ind. 
Cas  607;  4*1  M  643,  41  M.  L.J.I,  31  C.  L  J.  16;  14 
L.  W  59,7(1921)  M.  W.  N.  401;  30  M.  L.  T.  14;  26  C. 
W.  N  303[:  (1022)  A.  I,  R.  (P.  C.)  96,  48  I.  A.  244 
(P  C ),  railed  on 

When  Government  makes  a  grant  to  persons  com- 
prising a  widow  and  her  relations,  there  is  no  pre- 
sumption that  only  a  widow's  estate  is  intended  in 
case  of  the  former  [p.  472,  col  2;  p  473,  col.  1.] 

Where  a  service  inam  is  enfranchised  in  the  name 
of  a  Hindu  widow  and  a  number  of  other  persons  as 
an  "estate  in  free-hold",  and  as  "absolute  property", 
the  widow  takes  the  property  absolutely  and  not 
merely  with  the  limited  powers  of  a  Hindu  widow. 


Andukuri  Venkataramadas  v.  Pachigolla  Gavawaju, 
70  Ind.  Gas  677;  43  M.  L.  J.  153  at  p.  156;  (1922)  M.  W. 
N.  305,  16  L.  W.  228,  (1922)  A  I.  R.  (M)  173,  31  M,  L. 
T.  154,  distinguished. 

Second  appeal  against  a  decree  of  the 
District  Court,  Anantapur,  in  A.  S.  No.  97 
of  1921,  preferred  against  that  of  the  Court 
of  the  District  Munsif,  Anantapur,  in  O. 
8.  No.  20  of  1920,  (0.  S.  No,  17  of  1919, 
Penukonda,  District  Munsif  s  Court), 

Mr.  B.  Somayya,  for  the  Appellant. 

Mr.  V.  S.  Narasimhachari,  for  the  Re- 
spondents. 

JUDGMENT* — This  is  an  appeal  from 
the  decree  of  the  District  Judge  of  Ananta- 
pur in  A.  S,  No.  97  of  1921  on  appeal  from 
that  of  the  District  Munsif  of  Anantapur 
in  O.  8.  No  <20  of  1U20.  The  plaintiff  sued 
for  a  declaration  that  he  and  defendants 
Nos  1,  2  and  3  are  the  nearest  reversioners 
to  inherit  the  property  of  the  late  Ramappa 
and  to  recover  possession  of  a  quarter  of 
the  immoveable  property  described  in  the 
schedule  attached  to  the  plaint.  Both  the 
lower  Courts  dismissed  his  suit. 

The  first  point  for  consideration  is  that 
taken  by  the  learned  Judge  in  his  fourth 
paragraph  whether  the  property  shown  in 
the  title-deed  Ex.  G-l  is  the  absolute  pro- 
perty of  Savitramma  or  whether  she  only 
enjoyed  a  Hindu  widow's  estate  in  that  pro- 
perty. The  title-deed  Ex.  G-l  is  perfectly 
clear,  "The  inam  is  now  confirmed  to  yon 
in  free- hold,1'  in  other  words  "the  warn  will 
be  your  own  absolute  property.1'  "You" 
and  "your"  referring  to  the  six  persons  in 
the  register,  Ex.  D-2  and  the  first  of  these  six 
persons  is  Savitrama,  It  can  only  be  held 
that  "absolute  property11  in  this  document 
means  with  reference  to  Savitramma  a 
widow's  estate  on  two  assumptions:  (1) 
that  the  property  dealt  with  is  as  a  matter 
of  facfc,  the  property  of  the  joint  Hindu 
family  and  (2)  that  when  Government  mak$$ 


£92  I.  0. 1926.J 


MAklARAJ  DIN  V.  JSHAIftON. 


473 


a  grant  to  persons  comprising  a  widow 
and  her  relations,  Government  must  always 
be  taken  to  imply  that  a  widow's  estate  is 
intended.  The  first  assumption  as  the 
learned  District  Judge  points  out  •  has 
been  rendered  impossible  by  the  Privy 
Council  case  in  Venkata  Jagannadha  v. 
Veerabhadrayya  (1).  The  ruling  is  to  be 
found  on  page  655*:  "Their  Lordships  are 
of  opinion  that  the  Full  Bench  was  in  error, 
i.  e.<  Pingala  Lakshmipathi  v.  Bammireddi- 
palli  Chalamayya  (2),  that  the  case  of  a 
karnam  stands  on  its  own  footing,  and  that 
the  principles  applicable  thereto  were  pro- 
perly decided  in  Venkata  v.  Rama(3),  by  the 
Full  Court".  Briefly  the  effect  of  Venkata 
v.  Rama  (3)  is  that  a  service  inam  does  not 
enure  to  the  benefit  of  the  joint  family 
of  the  holder  but  only  of  the  holder  himself; 
see  page  271f  "I  think  it  may  be  taken  that 
such  lands  were  enfranchised  in  favour  not  of 
the  family  generally,  but  of  the  office-holder 
for  the  time  being".  And  again  at  page  25y|- 
"When  the  emoluments  consisted  of  land, 
the  land  did  not  become  the  family  property 
of  the  person  appointed  to  the  office  whether 
in  virtue  of  a  hereditary  claim  to  the  office 
or  otherwise.  It  was  an  appanage  of  the  office 
inalienable  by  the  office-holder  arid  design- 
<NA  LO  be  the  emoluments  of  the  officer  into 
whose  hands  soever  the  office  might  pass." 
And  so  in  Venkata  Jagannadha  v.  Veera- 
Wtadrayya  (1)  the  Judicial  Committee  has 
laid  down  that  when  an  inam  title-deed  is 
granted  confirming  lands  to  the  holder  of 
the  office,  his  representatives  and  assigns, 
the  lands  are  his  separate  property  and  are 
not  subject  to  any  claim  to  partition  by 
other  members  of  the  family.  This  clearly 
excludes  all  conception  of  the  joint  family 
in  such  transactions.  In  granting  an  ab- 
solute property  in  the  enfranchised  inam, 
Government  might  have  made  out  the  title 
deed  to  one  person  or,  as  in  the  present 
case,  to  six  persons,  but  there  is  no  reason  to 
suppose  that  they  contemplated  the  joint 
family  which,  as  shown  above,  had  no 
interest  in  the  property. 

For  the  second  assumption,  the  appellant 
relies  strongly  upon  a  remark  in  Andukuri 

(1)  61  Ind.  Gas.  667;  44  M.  643,  41  M.  L.  J.  1,   34  C. 
L.  J.  16;  14  L.  W.  59;   (1921)  M.  VF.  N.  401;    30  M  L. 
T.  14;  26  C.  W.  N.  302,  (1922)  A.  I.  R.  (P.  C )  96;  48  I. 
A.  244  (P.  C.). 

(2)  30  M.  434;  17  M,  L.  J  101;  2  M.  L,  T.  101. 

(3)  8  M.  249     9  Ind.    Jur.  185;  3  Ind    Dec    (N.  s ) 
172. 

*Page  of  44  M.— [tid 
tPages  of  8  WH 


Venkataramadas  v,    Paehigolla  Gararraju 
(4): 

"In  that  case  the  title-deed  was  made  out 
jointly  in  favour  of  the  widow  and  the  next 
reversioner  which  might  betaken  as  an  indi- 
cation that  the  reversioner  should  take  the 
estate  on  the  widow's  death  and  not  the 
widow's  heirs."  Their  Lordships  do  not  go 
so  far  as  to  say  it  must  be  taken  as  an 
indication  and  it  is  difficult  to  see  why  any 
such  assumption  should  be  made  unless  it- 
is  to  be  held  that  Government  think  in  the 
the  terms  of  Hindu  Law  when  Government 
state  unequivocably  this  property  shall  be 
your  absolute  free-hold. 

The  meaning  is  unmistakable  and  the 
fact  that  the  document  happens  to  have 
been  issued  in  India  does  not  import  the 
provisions  or  the  ideas  of  Hindu  Law.  I, 
therefore,  see  no  reason  to  traverse  the  deci- 
sion of  the  learned  District  Judge  on  this 
point. 

The  only  other  question  raised  is  whether 
the  District  Judge  erred  in  law  in  his  5th 
paragraph  in  finding  that  the  Diglott  re- 
gister only  raised  some  presumption  that 
Bavitramma's  portion  in  the  property  was 
family  property  inherited  from  her  husband 
and  in  refusing  to  find  it  conclusively  prov- 
ed in  the  absence  of  further  evidence.  I 
consider  the  learned  Judge's  appreciation 
of  this  evidence  perfectly  correct  and  he 
was  under  no  necessity  in  law  to  accept  it  as 
conclusive. 

No  other  point  was  raised.  The  appeal 
accordingly  fails  on  all  grounds  and  is  dis- 
missed with  costs. 

v.  N.  v.  Appeal  dismissed. 

N.  H. 

(4^  70  Ind.  Cas  677;  43  M.  L.  J,  153  at  p,  156;  (1922) 
M.  W.  N.  303,  16  L.  W.  228;  (1922)  A.  I.  R.  (M.)  173- 
31  M.  L.  T.  154. 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  106  OP  1925. 

December  1,  1925. 

Present; — Mr.  Justice  Mukerji. 

MAHARAJ  DIN  AND  OTHERS— PLAINTIFFS 

— APPLICANTS 

versus 
BHAIRO  NT— DEFENDANT — RESPONDENT. 

Agra  Tenancy  Act  (11  of  1901),  ss.  ]>  (J),  767,  Sch. 
JV,  item  29 — Suit  to  eject  lessee  of  grove— Jurisdiction 
of  Civil  and  Revenue  Courts. 

A  suit  to  eject  the  lessee  of  a  grove  who  has  been 
paying  a  portion  of  the  produce  of  the  grove  as  rent, 
is  a  suit  to  eject  a  tenant  and  is  cognizable  by  a 
Revenue  and  not  by  a  Civil  Court. 


474 


S1TAL  PRASAD  8INQH  V   JAGDEO  SINGH. 


Civil  revision  from  an  order  of  the  Munsif, 
East  Allahabad,  dated  the  8th  of  Septem- 
ber 1924. 

Mr.  Brij  Behari  Lai,  for  the  Applicants. 

Mr.  M.  Mahmudullah,  for  the  Respond- 
ent. 

JUDGMENT.— There  is  nothing  in 
this  case. 

The  plaintiffs  in  the  Court  of  first 
instance  are  the  applicants  here.  They 
alleged  in  the  plaint  that  they  were 
the  proprietors  of  certain  lands,  that 
one  Tika  had  planted  a  grove  over  the 
lands,  that  Tika  died  without  heir  and  the 
grove  went  by  escheat  to  the  plaintiffs, 
that  the  plaintiffs  from  time  to  time  let 
out  the  grove  to  different  persons  and  lastly 
they  let  it  out  to  the  defendant-respondent, 
that  they  did  not  any  longer  want  that  the 
defendant  should  hold  the  grove  and  that, 
therefore,  they  asked  for  his  ejectment.  As 
for  the  rent,  it  was  alleged  in  the  plaint 
that  the  defendant  handed  over  a  portion  of 
the  produce  of  the  grove  as  the  rent. 

The  defendant  pleaded,  inter  alia,  that 
he  was  a  grove-holder  and  not  a  mere  ten- 
ant and  that  the  suit  was  not  cognizable  by 
the  Civil  Court. 

Both  the  Courts  below  have  held  that  on 
the  plaintiffs'  own  allegations  the  suit  was 
not  cognizable  by  the  Civil  Court. 

I  have  no  doubt  that  the  Courts  below 
were  right.  The  suit  was  one  for  ejectment 
of  a  tenant.  A  tenant  is  defined  as  a  per- 
son by  whom  rent  is  payable,  Rent  includes 
whatever  is  paid  or  rendered  on  account  of, 
among  other  matters,  groves.  On  the 
plaintiffs*  own  allegations,  therefore,  the 
defendant  is  a  tenant  of  the  plaintiffs  and 
the  suit  for  his  ejectment  must  be  brought 
in  the  Revenue  Court  and  not  in  the  Civil 
Court. 

The  application  fails  and  is  hereby  dis- 
missed with  costs  which  will  include 
Counsel's  fees  in  this  Court  on  the  higher 
ecale. 

z.  K.  Application  dismissed. 


PATNA  HIGH  COURT. 

MISCELLANEOUS  APPEAL. 

December  12, 1924. 

Present:— Justice  Sir  Jwala  Prasad,  KT. 
S1TAL  PRASAD  SINGH  AND  OTHERS- 
APPELLANTS 

versus 

JAGDEO  SINGH— RESPONDENT. 
Court  Feet  Act  (VJI  of   1870),   9.  35,  Sch  II,  Art, 


[92 1.  0. 19261 

11-  -Bihar  and  Orissa  Government  Notification  No. 
S>76— Civil  Procedure  Code  (Act  V  of  1908),  ss  jJ7,  M-4 
— Restitution,  order  relating  to — Appeal — Court-fee 
payable. 

An  order  under  s.  144  of  the  G.  P.  C.,  comes  within 
the  purview  of  cl.  (1)  of  s.  47  of  the  Code  and  a 
memorandum  of  appeal  against  such  an  order  must, 
therefore,  in  accordance  with  the  direction  contained  in 
the  Notification  No.  2576-L-A -25;of  the  Bihar  and 
Orissa  Government  dated  the  5th  December  1921,  be 
charged  with  the  fee  provided  for  in  Art.  11  of  Sch.  II 
to  the  Court  Fees  Act.  [p  476,  col  1  ] 

Messrs,  Rai  Gur  Saran  Prasad,  Raghu- 
nandan  Prasad  and  Anand  Prasad,  for  the 
Appellants. 

The  Government  Pleader,  for  the  Re- 
spondent. 

JUDGMENT.— This  is  a  Reference  by 
the  Taxing  Officer  about  the  Court-fee  to  be 
paid  upon  the  memorandum  of  appeal. 
The  facts  appear  to  be  as  follows:  — 

The  appellants  obtained  a  mortgage-decree 
against  Gopi  Nath  Singh,  Bodh  Narayan, 
the  Mahanth  of  Bodh  Gaya  and  others. 
Bodh  Narayan  was  a  prior  mortgagee,  and 
the  Mahanth  was  made  a  defendant  as  a 
subsequent  purchaser.  In  execution  of 
that  decree  some  of  the  morl  traced  pro- 
perties were  sold  for  Rs.  71,198  on  21st 
October  1918.  Bodh  Narayan  also  obtained 
a  decree  on  his  prior  bonds  making  Har- 
bans Narayan  a  defendant.  He  claimed 
Rs.  36,907-7-7  out  of  the  sum  realised  by  the 
auction-sale  in  the  decree  of  Harbans  Nara- 
yan. This  was  disallowed  by  the  Subordi- 
nate Judge.  Bodh  Narayan  then  came  up 
to  this  Court  in  appeal.  That  appeal  was 
treated  as  one  under  s.  47  of  the  C.  P.  C. 
The  order  of  the  Subordinate  Judge  was 
set  aside  by  this  Court  and  Bodh  Narayan 
was  declared  entitled  to  receive  Rs.^36,907-7-7 
out  of  the  sale  proceeds.  Against  the  order 
of  this  Court  there  is  an  appeal  pending 
before  the  Privy  Council.  During  the 
pendency  of  the  appeal  in  this  Court  the 
decree-holder  Harbans  Narayan  had  with- 
drawn the  entire  sale-proceeds  of  Rs.  71,198 
on  furnishing  security.  Bodh  Narayan  is 
dead,  and  his  representative  Har  Ballabh 
Narayan  Singh  assigned  the  decree  to 
Jagdeo  Singh  and  he  applied  to  the  Sub- 
ordinate Judge  for  an  order  that  Sital 
Prasad,  representative-in-interest  of  Har- 
bans Narayan,  who  is  dead,  should  deposit 
Rs.  36,907-7-7  in  Court  as  ordered  by  the 
High  Court.  Sital  Prasad  opposed  this 
petition  and  the  matter  came  to  this  Court 
again.  Upon  the  final  order  passed  by 
this  Court  Sital  Prasad  deposited 
Rs.  36,907-7-7  in  the  Court  on  the  6bh  Feb- 


I.  0.  1926J 


SITAL  PRASAD  SINGH  V.  JAODEO  SINQH. 


475 


ruary  1922.  Jagdeo  Singh  applicant  claim- 
ed, besides  the  aforesaid  amount  deposited 
by  the  decree-holder,  interest  and  damages 
from  4th  April  1919  the  date  on  which  the 
sum  had  been  taken  out  of  the  Court  by 
Harbans  Narayan  and  others.  His  claim 
has  been  allowed  by  the  Court  below  and 
the  respondent  has  been  asked  to  deposit 
Rs.  11,736  as  interest.  Against  the  order 
of  the  Subordinate  Judge,  Sital  Prasad  and 
others  have  preferred  an  appeal  to  this 
Court,  with  a  Court-fee  of  Rs.  4  only. 
The  Stamp  Reporter  reported  that  ad 
valorem  Court-fee  should  have  been  paid 
upon  the  aforesaid  amount  of  Rs.  11,736. 
This  view  has  been  accepted  by  the  Taxing 
Officer.  The  appellant  claims  that  he  is 
liable  to  pay  only  the  Court-fee  already 
affixed  by  him  on  the  memorandum  of 
appeal.  On  account  of  this  difference  the 
matter  has  come  to  me  as  a  Taxing  Judge. 

The  point  appears  to  be  somewhat  diffi- 
cult, and  the  views  of  the  High  Courts  have 
been  divergent  thereupon.  The  relevant 
sections  in  the  C.  P.  C.  upon  this  point  are 
es.  47  and  144.  Section  144  corresponds 
with  s.  583  of  the  C.  P.  C.  of  1882.  That 
section  ran  as  follows: — 

"When  a  party  entitled  to  any  benefit  (by 
way  of  restitution  or  otherwise)  under  a 
decree  passed  in  an  appeal  under  this  Chap- 
ter desires  to  obtain  execution  of  the  same, 
he  shall  apply  to  the  Court  which  passed 
the  decree  against  which  the  appeal  was 
preferred;  and  such  Court  shall  proceed  to 
execute  the  decree  passed  in  appeal,  accord- 
ing to  the  rules  hereinbefore  prescribed 
for  the  execution  of  decrees  in  suits.11 

Section  244  of  the  old  Code  ran  as 
follows:— "The  following  questions  shall  be 
determined  by  order  of  the  Court  execut- 
ing a  decree  and  not  by  separate  suit 
(namely): — 

(a)  questions  regarding    the  amount  of 
any  mesne   profits  as  to    which  the  decree 
has  directed  enquiry; 

(b)  questions    regarding  the  amount    of 
any  mesne    profits  or    interest  which  the 
decree  has  made  payable  in    respect  of  the 
subject-matter  of  a  suit,  between  the  date 
of  its  institution  and  the  execution  of  de- 
cree, or  the  expiration  of  three  years  from 
the  date  of  the  decree; 

(c)  any  other  questions  arising   between 
the  parties  to  the  suit  in  which  the  decree 
was  passed,  or  their  representatives,   and 
relating   to    the   execution,    discharge  or 


satisfaction  of  the  decree  or  to  the  stay  of 
execution  thereof/' 

Section  583  which  under  the  old  Code 
occurred  in  Ch.  XLI  relating  to  appeals  has 
now  been  re-placed  by  s.  144  of  the  C.  P.  C. 
under  Part  XI,  headed  'Miscellaneous,11 
That  section  runs  as  follows: 

"(1)  Where  and  in  so  far  as  a  decree  is 
varied  or  reversed,  the  Court  of  first  in- 
stance shall,  on  the  application  of  any  party 
entitled  to  any  benefit  by  way  of  restitu- 
tion or  otherwise,  cause  such  restitution  to 
be  made  as  will,  so  far  as  may  be,  place  the 
parties  in  the  position  which  they  would 
have  occupied  but  for  such  decree  or  such 
part  thereof  as  has  been  varied  or  reversed; 
and  for  this  purpose  ,  the  Court  may  make 
any  orders,  including  orders  for  the  refund 
of  costs  and  for  the  payment  of  interest, 
damages,  compensation  and  mesne  profits, 
which  are  properly  consequential  on  such 
variation  or  reversal." 

Section  47,  ol.  (1)  which  corresponds  to 
s.  244,  cl.  (c)  of  the  old  C.  P.  C.  runs  as 
follows: — 

"(1)  All  questions  arising  between  the 
parties  to  the  suit  in  which  the  decree  was 
passed,  or  their  representatives,  and  relating 
to  the  execution,  discharge  or  satisfaction 
of  the  decree,  shall  be  determined  by  the 
Court  executing  the  decree  and  not  by  a 
separate  suit. 

(2;  The  Court  may,  subject  to  any  objec- 
tion as  to  limitation  or  jurisdiction,  treat  a 
proceeding  under  this  section  as  a  suit  or  a 
suit  as  a  proceeding  and  may,  if  necessary, 
order  payment  of  any  additional  Court- 
fees. 

(3)  Where  a  question  arises  as  to  whe- 
ther any  person  is  or  is  not  the  representa- 
tive of  a  party,  such  question  shall,  for  the 
purposes  of  this  section,  be  determined  by 
the  Court.'1 

Clauses  (a)  and  (6)  of  s.  244  do  not  now 
find  place  ia  s.  47. 

Section  35  of  the  Court  Fees  Act  em- 
powers the  Government  to  reduce  or  remit 
the  fees  mentioned  in  the  First  and  Second 
Schedules  of  the  Act.  Under  this  section 
the  Governor- General  in  Council  issued 
Notification  No  4650  dated  the  10th  Sep- 
tember 1889.  Clause  (fi)  of  that  Notification 
directed  that  the  fees  chargeable  on  appeals 
from  orders  under  s.  244  of  the  C.  P.  C. 
(Act  XIV  of  1882),  shall  be  limited  to  the 
amounts  chargeable  under  Art.  2  of 
Second  Schedule, 


470 


SITAL  PRASAD    SIN  Gil  V.  JAQDBO  SINGH. 


192  f.  0.  1926] 


By  Notification  No.  4344  8.  R,  dated  the 
6th  October  1893,  this  was  amended  by 
direction  that  the  fee  chargeable  on  appeals 
from  orders  under  cl,  (c)  of  s.  244  shall  be 
the  amounts  chargeable  under  Art.  2  of  the 
Second  Schedule  to  the  Court  Fees  Act, 
1870. 

The  present  s.  35  of  the  Court  Fees  Act 
empowers  the  Local  Government  to  reduce 
or  remit  the  fees  mentioned  in  the  Fhst 
and  Second  Schedules  of  the  Oourt  Fees 
Act.  Under  this  power  the  Local  Govern- 
ment issued  Notification  No.  2576-L-A-25, 
dated  the  5th  December  1921,  directing 
that  the  fee  chargeable  on  appeals  from 
orders  under  s.  47  of  the  C.  P.  C.  (Act  V 
of  1908),  shall  be  limited  to  the  amounts 
chargeable  under  Art.  11  of  the  Second 
Schedule.  Article  11  of  the  Second  Sche- 
dule provides  that  on  a  memorandum  of 
appeal,  when  the  appeal  is  not  from  a 
decree  or  an  order  having  the  force  of  a 
decree  and  £is  presented  to  a  High  Court, 
the  Court- fee  chargeable  is  Ks.  4, 

Section  2  of  the  C.  P.O.  (Act  XIV  of 
1882),  defined  "decree"  to  include  an  order 
determining  any  question  mentioned  or 
referred  to  in  e.  244  of  that  Code.  Similarly, 
s.  2  of  the  present  C.  P.  C.  (Act  V  of  1908), 
defines  "decree"  as  including  orders  deter- 
mining any  question  within  s.  47  of  the 
Code.  Prior  to  the  present  C.  P.  C., 
the  relief  by  way  of  restitution  was  to 
be  given  iby  execution  of  the  appellate 
decree  under  s.  583  of  the  old  Code.  Now 
under  the  present  Code  the  relief  by  way 
of  restitution  is  to  be  given  by  an  applica- 
tion in  the  Court  of  first  instance  under 
s.  144  of  the  Code.  Orders  under  s.  583 
relating  to  restitution  under  the  old  Code 
of  1882  used  to  be  appealable  as  if  they 
were  orders  passed  under  s.  244  of  the 
C.  P.  C.  Therefore  there  was  no  neces- 
sity of  making  orders  under  s.  583  as 
being  included  in  the  definition  of 
"decree".  The  present  arrangement  of  the 
Code  has  taken  out  s.  583  of  the  old  Code 
from  the  Chapter  relating  to  appeals  and 
has  made  a  distinct  provision  in  s.  144 
under  the  heading  "Miscellaneous".  In 
order  to  remove  any  doubt  as  to  whether 
orders  under  s.  144  would  be  appealable  or 
not,  such  orders  have  been  included  in  the 
definition  of  "  decree"  along  with  s.  47  of 
the  Code. 

In  the   case   of  Gangadhar    Marwari  v, 


Lachman  Singh  (1),  Brett  and  Sharfuddin, 
JJ.,  held  that  an  application  formesne  pro- 
fits made  not  by  the  plaintiffs  but  by  the 
defendants  against  whom  the  suit  had  been 
dismissed,  by  way  of  restitution  under  s.583, 
C.  P.  CM  comes  under  s.  244  (c)  of  the  Code, 
and  that  such  application  would  be  charge- 
able with  Court-fees  under  Art.  11,  Sch. 
II  of  the  Act  and  not  ad  valorem. 

In  the  unreported  case  of  Babu  Shyam~ 
nandan  Kishore  Singh  v.  Rai  Radha  Krishna 
(2),  (Sharfuddin  and  Chapman,  JJ )  this 
view  was  upheld  and  it  was  held  that  an 
order  passed  under  s.  144  of  the  C.  P.  C. 
came  under  the  Notification,  insamuch  as 
such  order  under  s.  144  of  the  present  Uode 
amounts  to  an  order  under  s.  244  (c)  of  the 
old  Code.  They  further  held  that  the 
reference  in  the  Notification  to  s.  244  (c)  of 
the  old  Code  must  relate  to  s.  144  by  virtue 
of  s,  8  of  the  General  Clauses  Act.  This  was 
the  view  taken  under  the  present  C.  P.  C. 

The  matter  was  fully  dealt  with  by  Chat- 
ter jea,  J.,  in  the  case  of  Madan  Mohan  Dey 
v.  Nogendra  Nath  Dey  (3),  The  learned 
Judge  referring  to  the  Notification  referred 
to  above  puts  the  question  to  himself  as  to 
whether  an  order  under  s.  144  is  an  order 
which  decides  a  question  falling  under  s.  47 
(1)  of  the  present  Code,  and  he  replies  .that 
under  s.  583  of  the  old  Code  an  application 
for  restitution  was  treated  as  an  application 
for  execution  of  the  appellate  decree,  and 
it  was  expressly  provided  that  the  Court 
shall  proceed  to  execute  the  decree  passed 
on  appeal  according  to  the  rules  for  exe- 
cution of  decrees  in  suits.  It  was  accord- 
ingly held  that  an  order  under  s.  583  fell 
within  the  provisions  of  s  244  (c),  and,  there- 
fore, cl.  (6)  of  the  Notification  applied. 
Continuing  the  learned  Judge  observes  : 

"It  is  true  s.  144  of  the  present  Code 
omits  the  provision  that  the  Court  is  to 
proceed  according  to  the  rules  prescribed 
for  the  execution  of  decrees  in  suits,  but 
it  expressly  lays  down  that  no  suit  shall 
be  instituted  for  the  purpose  of  claiming 
any  restitution  which  can  be  obtained  by 
application  under  the  section;  The  Court 
in  making  restitution  has  to  execute  the 
decree  of  reversal  (which  necessarily  carries 
with  it  the  right  to  restitution  even  though 
the  decree  may  be  silent  as  to  such 
restitution)  in  order  to  give  effect  to  the 

(1)  6  Ind.  Cas.  125;  11  G.  L  J.  511, 

(2)  M  A.  No.  370  of  1913,  deoicbd  on  20th  Daoember 
1915. 

(3)  39  lad.  g^s.  Q10;  21  C,  W.  N,  544, 


8ITAL  PRABAD  SINGS  V.  JAG  DEO  SINGH. 


[92  I.  0. 1926J 

reversal  of  the  decree.  That  being  so,  an 
order  under  s.  144  comes  under  s.  47  (1) 
and  cl.  (5  of  the  Notification  applies  to 
such  an  order," 

On  the  26th  March  1917  the  matter  was 
agitated  in  this  Court  upon  the  report  of 
the  Stamp  Reporter  and  ultimately  came 
up  for  the  decision  of  the  Taxing  Judge 
(Roe,  J.).  The  learned  Judge  expressed  the 
view  taken  in  the  case  of  Madan  Mohan  Dey 
v.  Nogendra  Natk  Dey  (3)  and  directed  that 
the  Court-fee  of  Rs.  2  as  was  payable  under 
the  old  Court  Fees  Act  was  sufficient  (vide 
the  unreported  case  of  Sheikh  Kamaruddin 
Mandal  v.  Raja  Thakur  Barham  (4). 

The  Allahabad  High  Court  has  taken 
a  contrary  view  :  vide  Jagdip  Narain 
Singh  v.  Mahant  Keshogir  (5).  That  was 
an  authority  under  the  old  Code. 

Under  the  present  Code  and  under  the 
Notification  of  the  Government  of  the 
United  Provinces,  Daniels,  J.,  took  the  same 
view  in  the  case  of  Baijnath  Das  v. 
Balmukand  (6)  and  the  reason  given  by  him 
is  as  follows: — 

uAn  application  under  s.  144  is  no  doubt 
one  which  carries  out  the  intention  of  the 
Appellate  Court's  decree,  but  it  does  not 
directly  execute  that  decree.  What  it  does 
is  to  undo  an  execution  wrongly  granted 
by  the  Court  below.  In  this  case  the  High 
Court's  decree  was  declaratory  and  could 
only  have  been  executed  in  respect  of  costs. 
The  appellant  must,  therefore,  stamp  his 
appeal  ad  valorem." 

The  learned  Judge  felt  the  inequity  of 
levying  ad  valorem  fee  upon  a  miscellaneous 
application  of  this  kind,  and  he  observed  as 
follows: — 

"It  is  unlikely  that  the  omission  of  orders 
under  s.  144  from  the  Notification  referred 
to  above  was  due  to  deliberate  intention. 
The  exemption  of  appeals  under  s.  47  from 
an  ad  valorem  fee  dates  back  to  a  time 
when  the  Code  of  1882  was  in  force,  Under 
that  Code,  s.  583,  an  application  by  way  of 
restitution  was  treated  as  a  proceeding  in 
execution  and  there  was  no  need  for  a 
separate  notification  under  the  section 
corresponding  to  the  present  s.  144  It  is 
probable  that  if  the  matter  is  brought  to 
the  notice  of  Government,  Government  will 
not  consider  it  desirable  to  impose  an 
ad  valorem  fee  on  a  party  who  is  merely 

(4)  M.  A.  No.  142  of  1017. 

(5)  A.  W.  N,  (1901)  180 

(6)  82Ind  Gas.  321;   47  A,  98,   22   A.  L.  J.  881;  L. 
R,  5  A,  Civ.  773;  (1925)  A,  L  R,  (A.)  137, 


477 


asking     the    Court    to     right     a     wrong 
unintentionally    done  by  the  Court   itself. 

I  direct    that  a    copy  of  this  judgment  be 
forwarded  to  Government   with  the  sugges- 
tion   that   the    provisions    of  para.    (4)  of 
the    Notification    should  be    extended    to 
appeals  from  orders  under  s.  144." 

The  Notification  of  the  Government  of 
the  United  Provinces  referred  to  by  Daniels, 
J,,  exactly  corresponds  with  the  Notification 
of  the  Government  of  Bihar  and  Orissa  al- 
ready referred  to,  which  makes  the  fee  pay- 
able on  appeals  from  orders  under  s.  47  of 
the  present  C.  P.  C.  of  1908,  one  under  Art. 

II  of  Sch.  II.  I  am  inclined  to  think  that  the 
Notification  did  not  consider    it  necessary 
to  include  orders  under  s.   144.  Whereas  s. 
583  of  the  old  Code  of  1882  has  been  remov- 
ed from  the  category  of  the  Chapter  headed 
"Appeals"   which  gave    relief    by  way  of 
restitution  to    a    party  when    the  decree 
under  which  injury  has    been  done  to  him 
has  been  set  aside  by    the  Appellate  Court 
by  executing  the    decree  of  the  Appellate 
Court,  the    present  s.   144  gives   the  same 
relief    and   prescribes    the     same   forum, 
namely,  the  Court  which  passes  the  decree 
from  which  the  relief  is  sought.    Determin- 
ation of  a  question  arising  under  s.  144  will 
naturally  relate  to  the  execution,  discharge 
or  satisfaction    of  the  decree  either  of  the 
first  Court  or  of    the  Appellate  Court.    If 
the  first  Court's  decree  has  been  discharged 
by  the  Appellate  Court,  the  question  arising 
under  s.  144  will  naturally  be  a  question  as 
to  the  discharge  of  the  decree  coming  under 
s.  47  of  the  C.  P.   C,    This  view  has  been 
accepted  by  the  Calcutta  High  Court  under 
the  present  Code  and  the  view  is   in  con* 
sonance  with  reason,  equity  and  justice   so 
much  so  that  even  the  learned  Judge  of  the 
Allahabad  High  Court,  Daniels,  J.  felt  that 
if  the  interpretation  was  correct  it  requires 
to  be  set  right  by  the  Legislature.  This  pro- 
vince used  to  be  governed  formerly  by  the 
rules  and  practice  obtaining  in  the  Calcutta 
High   Court,  and   the    practice    has   been 
followed  by   this    Court  ever  since  in  the 
matter    with    which    we    are    at    present 
concerned.    The  Taxing  Judge  (Roe,  J.;  in 
1917  gave  effect  to  the   Calcutta  view  and 
held  that  the  fee  chargeable  was  one  under 
Art.  11  of  Sch,  II  of  the  Court-Fees  Act.    I 
as  a  Taxing  Judge,  am  not  prepared  to   go 
against  the    view    of  my    predecessor-in- 
olice.    Whatever  trouble  there  might  have 
arisen  in  the    interpretation    due  to  s,  144 
not  being  expressly  included  in  the  Govern* 


4?8 


RAM  NATH  SINGH  V.  GAJADHAR  LAL. 


[92  I.  0.'  1926J 


ment  Notification,  it  is,  I  think,  amply 
obviated  by  the  reason  given  by  me  above. 

In  a  matter  of  this  kind  the  decision  of  a 
Taxing  Judge  such  as  that  of  Roe,  J.,  should 
be  the  rule  of  the  Court  and  it  should  not 
be  disturbed  by  his  successor-in-office. 

I,  therefore,  hold  that  the  Court-fee  paid 
is  sufficient. 

z.  K.  Order  accordingly. 


ALLAHABAD  HIGH   COURT. 

SECOND  CIVIL  APPEAL  No.  899  OF  1924. 

October  22,  1925. 

Present: — Mr.  Justice  Daniels. 

RAM  NATH  SINGH  alias  LAL  SINGH 

AND  ANOTHER — DEFENDANTS — APPELLANTS 

versus 

GAJADHAR  LAL— PLAINTIFF- 
RESPONDENT. 

Transfer  of  Property  Act  (IV  of  1SS2),  s.  ,54-  Sale— 
Delivery  of  possession— Property  already  in  possession 
cf  vendee. 

In  the  case  of  an  unregistered  sale  of  property  of 
rupees  less  than  one  hundred  in  value  it  is  sufficient 
delivery  of  possession  under  s  54,  Transfer  of  Pro* 
perty  Act,  that  the  property  is  already  in  the  posses- 
sion of  the  vendee. 

Muthukaruppan  Samban  v,  Muthu  Samban,  25  IncL 
Cas.  772,  38  M.  1158;  1  L.  W.  754;  16  M.  L.  T.  344; 
(1914)  M.  W.  N.  768;  27  M.  L.  J.  497,  relied  on. 

Second  appeal  against  a  decree  of  the 
Second  Subordinate  Judge,  Cawnpore, 
dated  the  26th  April  1924. 

Mr.  Hasari  Lai  Kapoor,  for  the  Appel- 
lants. 

Mr.   U.  S>  Bajpai,  for  the  Respondent. 

JUDGMENT.— This  was  a  suit  for 
possession  of  groves  standing  on  certain 
plots.  The  suit  has  been  decreed  as  to 
possession  by  the  Court  below  but  remand- 
ed on  the  question  of  damages.  The  de- 
fendants have  coine  up  in  second  appeal. 

Two  pleas  have  been  urged: — 

(1)  that  the  sale-deed  of  1888  which  forms 
the  basis  of  the  plaintiff's    title  to  plots 
Nos.  2876,  2877    and  2883  was  invalid  for 
want  of  registration  ; 

(2)  that  the  findings  of  the  lower  Appel- 
late Court  do  not  warrant  its  awarding  to 
the  plaintiff     the  trees    of  Nos.  2903  and 
981. 

As  regards  the  first  point,  the  sale-deed 
in  question  was  for  a  sum  of  Rs.  32  only. 
The  transfer  could,  therefore,  be  made  either 
by  a  registered  sale-deed  or  by  delivery 
gf  the  property,  The  Court  below  holds 


that  the  ?-egistration  was  unnecessary  as 
the  plaiptiff  was  already  in  possession  of 
the  property  under  a  mortgage.  This 
view  is  supported  by  the  ruling  of  the 
Madras  High  Court  in  Muthukaruppan 
Samban  v.  Muthu  Samban  (1).  In  that  case 
the  learned  Judges  held  that  if  theie  was 
oral  sale  of  the  properties  (and  the  same 
would  apply  to  an  unregistered  sale),  the 
fact  that  the  vendee  was  already  in  pos- 
session would  not  render  the  sale  invalid 
if  the  vendor  by  appropriate  acts  or  decla- 
rations converted  the  possession  of  the 
vendee  as  mortgagee  into  one  as  purchaser. 

The  second  plea  is  not  borne  out  by  an 
examination  of  the  record.  Both  the  plots 
in  question  are  found  to  have  been  in  pos- 
session of  the  plaintiff  from  a  long  time, 
No.  981  has  been  recorded  in  his  name  in 
the  papers,  2903  corresponds,  according  to 
the  judgment  of  the  Court  below,  to  the 
old  numbers  2315  and  2316-1.  231b  was 
entered  in  the  name  of  the  plaintiff's  grand- 
father as  far  back  as  the  khasra  of  1871. 
Nothing  is  said  as  to  2315,  but  as  the  dis- 
pute in  this  case  relates  not  to  the  entire 
plots  but  to  trees  standing  on  certain  parts 
of  them  there  is  nothing  to  show  that  the 
Court  below  was  wrong  in  holding  that 
the  trees  fall  on  the  land  which  has  been 
in  possession  of  the  plaintiff  and  his  ances- 
tors in  1871.  It  is  for  the  appellant,  espe* 
cially  in  second  appeal,  to  show  that  the 
judgment  of  the  Court  below  is  wrong. 

For  these  reasons  I  dismiss  the  appeal 
with  costs. 

The  cross-objections  put  forward  by  the 
respondents  which  attack  findings  of  fact 
have  no  force  and  are  accordingly  dis- 
missed. 

No  objection  has  been  taken  by  the 
plaintiff  to  the  form  of  the  decree  passed 
by  the  Court  below,  but  I  should  like  to 
point  out  to  B.  Triloki  Nath  for  his  future 
guidance  that  in  such  a  case  as  this  the 
proper  course  is  to  remand  an  issue  as  to 
the  amount  of  damages  under  O.  XLI,  r.  25 
instead  of  remanding  the  whole  case  under 
O.  XLI,  r.  23  as  he  has  done, 

N.  H.  Appeal  dismissed. 

(1)  25  Ind.  Cas.  772;  38  M.  1158;  1  L.  W.  754;  16 
M.  L.  T.  344;  (1914)  M.  W,  N.  768;  27  M,  L,  J.  497. 


[52  t.  C.  1926]  tfATEtt  MAHOMED  V. 

LAHORE  HIGH  COURT. 

CIVIL  MISCELLANEOUS  APPLICATION  No.  591 

OF  1924 

January  16,  1925. 
Present :— Mr.    Justice  Martineau  and 

Mr.  Justice  Zafar  Ali. 

DHANPAT  RAI  AND  OTHERS— PLAINTIFFS — 

PETITIONERS 

versus 

KAHAN  SINGH  AND  OTHERS — DEFENDANTS 
— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  110  — 
Appeal  to  Privy  Council— High  Court  maintaining 
decree  of  lower  Court — Leave^  when  can  be  granted — 
—  Substantial  question  of  law — Hindu  Law — Com- 
promise entered  into  by  father,  whether  binding  on 
son. 

When  the  High  Court  maintains  the  decree  of  a  lower 
Court  it  affirms  the  decision  of  the  lower  Court  within 
the  meaning  of  s.  110  of  the  C  P.  C  ,  even  though  the 
two  Courts  differ  in  their  findings  on  cei  tain  issues. 
Leave  to  appeal  to  the  Privy  Council  in  such  a  case 
can  be  granted  only  if  there  is  a  substantial  question 
of  law  involved  in  the  case. 

A  substantial  question  of  law  within  the  meaning 
of  s  110  of  the  C.  P.  C.  means  a  question  of  law 
in  respect  of  which  there  may  be  a  difference  of 
opinion. 

The  general  principle  that  a  Hindu  son  is  bound  by 
a  bona  fide  compromise  entered  into  by  his  father  for 
the  benefit  of  the  family  is  well-settled  and  is*  not  a 
substantial  question  of  law  within  the  meaning  of  s. 
110  of  the  C.  P  C. 

Petition  for  leave  to  appeal  to  His  Majesty 
in  Council  from  the  judgment  and    decree 
of  Mr.  Justice  Martineau  and  Mr.  Justice 
Zafar  Ali,  passed  in  Civil  Appeal  No.   199 
of  1920,  on  the  25th  June  1924. 
Dr.  G.  C.  Naurang,  for  the  Petitioners. 
Bakhshi  Tek  Chaud,  Mehta  A  win  Chand, 
Lala  TirathRam  and  LalaMacfon  Gopal,  for 
the  Respondents. 

ORDER.— This  is  an  application  for 
leave  to  appeal  to  His  Majesty  in  Council 
from  a  decree  of  this  Court  dismissing  an 
appeal  from  a  decree  of  a  Subordinate  Judge. 
The  value  of  the  subject-matter  in  dispute 
exceeds  Rs.  10,000. 

It  is  contended  for  the  applicants  that, 
although  this  Court  dismissed  the  appeal, 
yet  as  it  decided  the  first  issue  in  regard 
to  the  bar  of  s.  47,  C.  P.  C.  against  all  the 
three  plaintiffs,  whereas  the  Subordinate 
Judge  had  decided  it  in  favour  of  two  of 
tLe  plaintiffs  and  against  only  one,  this 
Court's  decree  should  be  held  to  have 
reversed  the  decision  of  the  lower  Court 
RO  far  as  two  of  the  plaintiffs  are  concerned. 
We  do  not  agree  with  this  contention.  When 
this  Court  maintains  the  decree  of  the 
lower  Court  it  affirms  the  decision  of  the 
lower  Court,  even  though  the  two  Courts 


differ  in  their  findings  on  certain  issues. 
This  matter  was  settled  by  their  Lordships 
of  the  Privy  Council  in  Tassaduq  liasul 
Khan  v.  Kashi  Ram  (1). 

The  only  question  is  whether  the  appeal 
involves  a  substantial  question  of  law. 
This  Court's  finding  that  plaintiffs  Nos.  2 
and  3  were  really  parties  to  the  proceedings 
taken  in  execution  of  Ghulam  All's  decree 
is  a  finding  of  fact.  The  question  whether 
s.  47,  C.  P.  C.,  is  a  bar  to  the  suit  is,  in 
our  opinion,  so  clear  from  tfie  section 
itself  as  not  to  admit  of  any  doubt,  and  is, 
therefore,  not  a  substantial  question  of  law, 
which  means  a  question  of  law  in  respect  of 
which  there  may  be  a  difference  of  opinion: 
Go/ecu  Chand  v.  SanwalDas(2). 

Furthermore  we  held  that  the  suit  must 
fail,  not  only  on  account  of  the  bar  created 
by  s.47,  C.  P.  C.,  but  also  because  the  plaint- 
iffs are  bound  by  the  compromise  entered 
into  by  Shiv  Nath,  the  father  of  the  firet 
plaintiff,  in  good  faith  in  the  interest  of 
the  family,  whereby  he  recognised  the 
validity  of  the  mortgage  which  the  plaintiffs 
now  seek  to  challenge.  In  regard  to  that 
matter  also  we  think  that  no  substantial 
question  of  law  arises,  as  the  general 
principle  that  a  person  is  bound  by  a  bona 
fide,  compromise  entered  into  by  his  father 
is  well- settled. 

As  the  decision  of  the  lower  Court  was 
affirmed  by  this  Court  and  the  appeal  from 
this  Court's  decree  does  not,  in  our  opin- 
ion, involve  a  substantial  question  of 
law  we  dismiss  the  present  application  with 
costs, 

z.  K.  Appeal  dismissed. 

(1)  25  A  100,  7  C  W,  N.  177;  5  Bom,  L.  R.  100,  30  L 
A.  35,  8  Sar.  P.  0  J.  337  (P  C ). 

(2)78Ind.  Gas.  3J7;5  L.  260;  6  L.  L.  J.  180;  (1921) 
A.  I.  R.  (L  )  473. 


LAHORE  HIGH  COURT. 

CIVIL  APPEAL  No.  929  OP   1924. 

January  8,   1925. 
Present:— Mr.  Justice  Campbell, 
FAT  EH  MAHOMED— PLAINTIFF- 
APPELLANT 

versus 
MITHA  AND  ANOTHER— DEFENDANTS— 

RESPONDENTS. 
Law— Gift  by  father  to  mmvr 


480 


Transfer   of   possession  —  Registration— Transfer 
Property  Act  (IV  of  1882),  s.  123. 

A  gift  by  a  Mnhammadan  father  to  his  minor  son  is 
complete  when  the  deed  of  gift  is  completed  and 
neither  transfer  of  possession  nor  registration  of  the 
deed  is  necessary  to  complete  it.  [p  481,  col.  1.] 

Ramamirtka  Ayyan  v.  Gopala  Ayyan,  ID  M.  433,  6 
M.  L.  J.  207;  6  Ind.  Dec.  (N  s)  1007,  Parbati  v.  Baij 
Nath  Pathak,  16  Ind.  Cas  406;  35  A.  3,  10  A.  L.  J.  300 
and  Venkati  Rama  Reddi  v.  Pillati  Rama  Reddi  38 
Ind.  Cas.  707;  40  M,  204:  31  M  L.  J.  690,  4  L.  W. 
465:  20  M.  L.  T,  450;  (1917)  M.  W.  N.  112,  followed 

The  provision  of  the  Transfer  of  Property  Act 
that  a  valid  gift  can  only  be  made  by  a  registered 
deed  does  not  apply  to  the  Punjab,  [ibid.] 

Appeal  from  a  decree  of  the  District 
Judge,  Dera  Ghazi  Khan,  dated  the  10th 
January  1924,  confirming  that  of  the  Sub- 
Judge,  Choti  Zirin  (Dera  Ghazi  Khan), 
dated  the  16th  July  1923. 

Mr.  Behari  Lai,  for  the  Appellant, 
Mr.  Sleem,  for  Mr.  Abdul  Rashid,  for  the 
Respondents. 


FATEH  MUHAMMAD  V.  MlTi^A. 

of 


[92  I.  0. 


-The  facts  out  of  which 
has  arisen  are    as  fol- 


JUDGMENT. 

the   present    suit 
lows  : — 

One  Mitha  on  the  30th  of  August  1921 
executed  a  document  which  has  been  held 
by  the  lower  Appellate  Court  to  be  a  deed 
of  gift,  transferring  to  Fateh  Mahomed, 
his  infant  son,  an  undivided  share  in  a 
certain  landed  estate.  Two  days  later 
on  the  1st  of  September  1921  Mitha  exe- 
cuted a  sale-deed  transferring  by  sale  the 
same  share  to  one  Abdul  Khaliq,  a  defend- 
ant in  the  suit,  the  price  being  Rs,  1,250. 
On  the  next  day,  the  2nd  of  September,  this 
sale-deed  was  registered  and  on  the  14th 
of  September  the  mutation  in  favour  of 
Abdul  Khaliq  the  vendee  was  entered  up 
by  the  patwari.  The  minor  donee's  pater- 
nal uncle,  on  the  5th  of  September  pre- 
sented the  deed  of  gift  of  the  3Uth  of  August 
for  registration,  but  on  the  12th  of  October 
Mitha  objected  to  its  registration  and  the 
Sub-Registrar  refused  to  register  it.  It 
was  eventually  registered  on  the  14th  of 
November  by  order  of  the  Registrar. 

This  suit  is  by  Pateh  Mahomed  the  minor 
donee  for  possession  of  the  land.  The  Trial 
Court  dismissed  the  suit  on  the  ground 
that  under  Muhammadan  Law  the  gift  of  an 
undivided  share  in  property  capable  of 
division,  is  invalid.  Appeal  was  made  to 
the  District  Judge  who  did  not  sustain 
the  finding  of  the  Trial  Court  and  held 
that  this^  particular  gift  did  not  fall  within 
the  definition  of  Musha,  the  basic  principle 
of  which,  he  observed,  is  the  exclusion  of 


strangers  and  a  valid  gift  of  an  undivided 
share  of  property  could  be  made  in  favour 
of  the  son  of  the  donor.  In  second  appeal 
this  pronouncement  has  not  been  challenged 
by  the  respondent  Abdul  Khaliq. 

Before  the  learned  District  Judge,  how- 
ever, Abdul  Khaliq  supported  the  Trial 
Court's  order  on  two  different  grounds. 
One  was  that  the  deed  of  gift  having  been 
registered  against  the  consent  of  the  exe- 
cutant was  not  properly  registered  and 
hence  was  not  admissible  in  evidence. 
This  objection  was  repelled  by  the  learned 
District  Judge  and  again  his  finding  is 
not  contested  before  me.  The  second 
ground  was  that  the  gift  was  not  complete 
and  had  been  revoked.  Here  the  learned 
District  Judge  upheld  the  respondent  and 
dismissed  the  appeal.  The  plaintiff  has 
come  here  on  second  appeal. 

The  learned  District  Judge  held  that 
the  deed  of  gift  by  s.  47  of  the  Registra- 
tion Act  took  priority  over  the  sale-deed, 
even  though  it  was  registered  later  than 
the  latter,  and  that  its  registration  was  per- 
fectly regular.  He  observed,  however,  that 
the  real  question  was  whether  the  gift  was 
complete  and  he  laid  it  down  that  in  order 
to  make  the  gift  complete  it  was  necessary 
for  Mitha  to  do  everything  to  transfer  the 
possession  of  the  land  to  the  son.  No  actual 
change  of  possession  was  necessary  since 
the  gift  was  by  a  father  to  his  minor  son; 
but  it  was  very  necessary  for  Mitha  to  have 
the  deed  of  gift  registered.  Instead  of 
doing  so  he  proceeded  to  make  a  sale  in 
favour  of  another  person  two  days  later. 
Thus  the  gift  was  not  completed  and  Mitha 
had  every  right  to  revoke  it. 

In  coming  to  this  conclusion  the  learned 
District  Judge  relied  upon  Ramamirtha 
Ayyan  v.  Gopala  Ayyan  (1)  where  it  was 
held  that  a  deed  of  gift  being  a  voluntary 
transfer  remains  a  nudum  pactum  until  the 
donor  has  done  all  that  is  necessary  to 
make  it  legally  complete;  that  to  do  so,  it 
is  necessary  inter  alia,  that  it  should  be 
registered,  but  that  he  can  be  no  more  com- 
pelled to  register  the  deed  than  to  execute 
it  in  the  first  instance.  The  registration 
contrary  to  the  supposed  donor's  wishes  of 
the  deed  under  consideration  was  void  and 
in  such  circumstances  there  was  no  gift. 

This  dictum  was  disapproved  in  Parbati 
v.  Baij  Nath  Pathak  (2)  and  the  decision  in 

(1)  19  M.  433;   6  M,  L.  J.  207;    6  lud.  Dec,  (N.  a,) 

(2)  16  Ind*  Cas,  400;  35  A,  3;  10  A,  L,  }<  300, 


[92  t  0,  1926] 


SUBRAMANIAM  PATTER  V.  VBLU  NAIR. 


481 


Ramamirlha  Ayyan  v.  Gopala  Ayyan  (1) 
was  expressly  overruled  by  a  Full  Bench 
of  the  Madras  High  Court  in  Venkati  Rama 
Reddi  v.  Pillati  Rama  Eeddi  (3).  It  was 
there  laid  down  that  once  an  instrument 
of  gift  is  duly  executed,  the  Registration 
Act  allows  it  to  be  registered  even  though 
the  donor  may  not  agree  to  its  registration, 
and  upon  registration  the  gift  takes  effect 
from  the  date  of  execution.  So  far  as  the 
donor  is  concerned  by  executing  the  deed 
he  does  all  that  he  need  do,  for  registra- 
tion can  be  effected  even  without  his  co- 
operation. 

The  above  rulings,   of  course,  were  de- 
livered in  respect  of  cases  where  under  the 
Transfer    of  Property  Act  a  valid  gift  could 
only  be  made  by  a  registered  deed.    There 
is  no  such  law  in  this  Province.    The  ques- 
tion for  decision  in  this  case  is  whether  a 
complete  gift    was  made   on  the  30th  of 
August  1921    to   the  plaintiff,    and  really 
resolves  itself  into  this.    Did  Mitha   at  the 
time  when  he   executed    that  deed  not  in- 
tend   to  transfer  the  subject-matter  to    his 
son?    The  learned    District  Judge  has  not 
come  to  any  finding    about  this  intention 
but  has  held  erroneously    on  the  strength 
of  a  decision,  which    he    was    not    aware 
had  been  overruled,  that  between  execution 
of  the  deed    and    registration    the  donor 
was  entitled  to  change  his  mind  if  he  wished 
to  do  so,  and  that  he  "revoked"  the  gift. 
A  gift,  however,  once    made    cannot    be 
revoked    and   the   question   is  whether    or 
not    this    gift    was    actually    made.       No 
help  towards  the  solution  is  to  be  gained 
from   the    ordinary  rule  that  a  gift  to  be 
valid  must  be  accompanied  by  transfer  of 
possession.    The  learned  District  Judge  is 
correct  in  saying  that    that  rule  does  not 
.apply  to  a  gift  by  a  father  to   his    infant 
son.    This  exception  is  laid  down  in  para. 
303  of  Wilson's  Muhammadan  Law  and  is 
admitted  by  the  learned   Counsel  for  the 
respondent  to  prevail.   Counsel    does  not 
dispute  the  ruling  of  the  Full  Bench  of  the 
Madras  High  Court  referred  to  above  that 
so    far  as   conveyance   by  written  instru- 
ment is  concerned  a  donor  does  all  that  is 
necessary  when  he  executes  the  deed  of  gift. 
He  argues,  however,  that  the  facts  of  the 
sale  two  days  later  and  of  the  subsequent 
refusal  to  assent  to  r*gHir<itK  n  are  proof  that 
on  the  30th  of  August  Mssi.a  had  no   inten- 

(&)  38  lad,  Gas.  707;  40  M.  201;    31  M.  L.  J,  690;  4 
I*  W.  465;  20  M.  L,,  T,  450;  (1917)  M,  W,  N.  112, 

31 


tion  to  gift  the  land  and  drew  up  the  deed 
merely  for  some  ulterior  motive. 

in  my  judgment  this  contention  has 
no  force.  It  is  an  every  day  feature  of 
ordinary  life  for  a  man  to  make  up  his 
mind  to  something  on  one  day,  and  to  change 
his  mind  the  next  day.  This  is  what  Mitha, 
who  was  examined  as  a  defendant,  prac- 
tically admitted  to  have  occurred  in  the 
present  case,  and  Mitha  waa  supporting  not 
the  plaintiff  but  Abdul  Khaliq  the  vendee. 
In  default  of  direct  evidence  to  the  con- 
trary of  which  there  is  none,  it  must  be 
presumed  from  the  facts  that  Mitha  paid 
Rs.  3  for  a  stamp  paper,  engaged  a  scribe, 
put  his  signature  to  the  deed  of  the  30th  of 
August,  and  had  it  attested  formally  by 
witnesses  that  at  that  time  he  intended  what 
he  caused  to  be  set  out  in  the  deed. 

The  result  of  this  finding  coupled  with 
those  others  of  the  learned  Didtrict  Judge 
which,  as  already  stated,  have  not  been 
challenged  before  me  is  that  the  appeal 
must  be  accepted  and  the  plaintiffs  suit 
must  be  decreed,  I  accept  the  appeal  ac- 
cordingly and  give  the  plaintiff  a  decree 
for  the  land  claimed  together  with  costs 
throughout. 

N.  H.  Appeal  accepted. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1720  OF  1921 

July  23,  1925. 

Present:— -Mr.  Justice  Phillips. 
PUTHIA  MADATHIL  >!  iisJ\M  \\I\M 

PATTER  OF  EANGANDIYUR 

AMSOM  AND  DESAM  (DIBD)  AND  OTHEKS 

PLAINTIFFS — APPELLANTS 

versus 

EANGANDIYUR  DEVASWOM 
URALAM  AUTOLI  NANI  AMMA'S 

SON  K\KNAVAN  VELU  NATR 
AND  oTHBttS  —DEFENDANTS— RESPONDENTS. 
Trust,  religious — Pro-note   by    trustees — Trust    pro- 
perty, liability  of. 

Where  the  uralara  of  a  dtvaiwom  execute  a  pro- 
misaory  note  in  their  capacity  as  uralaw  reciting 
therein  that  the  amount  borrowed  is  due  to  the  payee 
from  the  devaswow>  the  payee  is  entitled  to  proceed 
against  the  property  of  the  devaswom,  on  proof  of 
existence  of  necessity  for  the  loan. 

Sundaresam  Chtttiar  v.  Viswajiatha  Pandar$3an+ 
nadki,  72  Ind.  Cas,  103;  45  M.  703,  31  M.  JL.  T.  610; 
16  L.  W.  83;  43  M,  L.  J.  147;  (10*2)  M.  W.  N,  414} 
(1922)  A,  I  B,  (M.)  402,  relied  on, 


482 


In  the  matter  o/  DUROA  BAT. 


I.  0. 1926J 


Second  appeal  against  a  decree  of  the 
District  Court,  South  Malabar,  in  A.  8. 
No.  465  of  1921,  preferred  against  that 
of  the  Court  of  the  District  Munsif,  Ponnani, 
in  O.  8.  1^0.673  of  1919  (0.  8.  No.  906  of 
1918  on  the  file  of  the  Court  of  the  District 
Munsif,  Chowghat). 

Mr,  K.  P.  Ramakrishna  Iyer,  for  the  Ap- 
pellants. 

Mr.  K.  P.  M.  Menon,  for  the  Respondents. 

JUDGMENT.—  This  is  a  suit  on  a  pro- 
missory note  executed  by  the  defendants, 
who  are  uralars  of  a  devaswom.  In  the 
promissory-note,  it  is  recited  that  the  two 
defendants  promise  "in  our  capacity  as 
utalars  of  the  devoswom  to  pay11  and 
again  we  have  the  recital  "  the  amount 
that  has  been  taken  in  cash  is  due  to  you 
from  the  devaswom."  Notwithstanding 
this  specific  recital  of  the  liability  of  the 
devaswom  for  the  suit  debt,  the  lower 
Appellate  Court  has  held  relying  on  Swami- 
natha Aiyar  v.  Srinivasa  Aiyar  (1),  that  the 
plaintiff  is  entitled  only  to  a  personal 
decree  against  the  uralars.  Since  the  Dis- 
trict Judge  delivered  his  judgment,  another 
case  of  this  Court  has  been  reported,  name- 
ly, Sundaresam  Chettiar  v.  Viswanatha 
fiandarasannadhi  (?)  in  which  the  facts 
are  identical  with  the  present  case,  namely, 
there  was  a  distinct  undertaking  in  the 
promise  made  by  the  uralars  that  the 
money  was  to  be  re-paid  out  of  dtvaswom 
funds,  that  is  to  say,  not  only  did  they 
pledge  tht'r  Dersonal  credit,  but  they  enter- 
ed into  a  contract  with  the  plaintiff  that 
the  devaswom  funds  should  be  liable  for 
the  re-payment'  of  the  debt.  These  facts 
distinguish  the  present  case  from  that 
reported  in  Swaminatha  Aiyar  v.  Srinivasa 
Aiyar  (1)  and  also  that  in  Ammalu  Ammal 
v.  Nctfriagiri  Ammal  (3),  In  this  latter 
jor  re'c&e  learned  Judges  refused  to  consider 
tile  question  of  liability  of  trustees  of 
religious  institutions  and  based  their  judg- 
ment on  the  liability  of  secular  trustees 
and  adopting  the  same  argument  as  that 
adopted  ia  the  earlier  case  held  that  there 
was  only  a  personal  liability.  This  conclu- 
sion is  based  on  the  principles  of  English 
Law  relating  to  trustees,  but  it  is  doubtful 

(1)  38  Ind.  Gas,  172;  32  M.  L.  J.  259;  21  M.  L.  T  91' 
5  L,  W.  323;  (1917)  M.  W.  N.  278  i«.^.  i.w, 

(2)  72  Ind.  Cae.  103;  45  M.  703;  31  M.  L.  T.  66-   16 

•      4    L-  J-  U7; 


»    .     .  . 

(3)  43  Ind.  Cas,  760;  33  M.  L.  J.  631;  22  M,  L  T  391- 
$  t,  W,  722;  (1918)  M,  W,  N,  11(1,  '       ' 


whether  they  are  applicable  in  their 
entirety  to  persons  like  heads  of  mutts  or 
managers  of  religious  institutions  who 
are  not  in  the  strict  sense  of  the  word 
trustees. 

It  is  suggested  for  the  respondents  that 
because  the  earliest  decision  in  Srimath 
Daivasikamani  Pandarasannidhi  v.  Noor 
Mahomed  Routhan  (4)  is  doubted  in  Swami- 
natha Aiyar  v.  Srinivasa  Aiyar  (1),  whereas 
it  is  to  a  limited  extent  approved  in  Sunda- 
resam Chettiar  v.  Viswanatha  Pandara- 
sannadhi  (2)  that  there  is  a  divergence  of 
opinion  between  the  two  Benches.  But 
Krishnan,  J.,  in  Sundaresam  Chettiar  v. 
Viswanatha  Pandarasannadhi  (2)  merely 
says  that  he  is  inclined  to  follow  Srimath 
Daivasikamani  Pandarasannidhi  v.  Noor 
Mahomed  Routhan  (4),  *'  where  the  debt  is 
not  incurred  purely  on  the  personal  liability 
of  the  debtors."  This  limitation  of  liabi- 
lities is  the  cardinal  distinction  between 
the  present  case  and  that  in  Swaminatha 
Aiyar  v.  Srinivasa  Aiyar  (1),  where  the 
authority  of  the  prior  decision  was  ques- 
tioned. I  am  bound  by  the  decision  in 
Sundaresam  Chettiar  v.  Viswanatha  Pan- 
darasannadhi (2)  which  is  exactly  in  point 
and  I  may  add  that  I  see  no  reason  to  doubt 
its  correctness. 

I  may  here  observe  that  in  dealing  with 
the  facts  of  this  case,  I  have  taken  one 
fact  as  assumed  by  both  the  lower  Courts, 
namely,  that  there  was  necessity  to  borrow 
on  behalf  of  the  devaswom.  That  point 
has  not  been  decided  by  either  Court.  It 
will,  therefore,  be  necessary  to  remit  the 
case  to  the  District  Munsif  for  decision  of 
this  issue  and  for  final  disposal  in  the 
light  of  the  above  remarks.  The  stamp  on 
the  appeal  memo,  will  be  refunded  and  the 
costs  of  this  appeal  will  abide  the  result. 

v.  N.  v.  Appeal  allowed. 

N.  H. 

(4)  31  M.  47,  17  M.  L.  J.  553;  3  M.  L.  T,  95, 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.         OP  1925, 

December  1,  1925. 
Present:— Mr.  Justice  Walsh  and 

Mr.  Justice  Kanhaiya  Lai. 
In  the  matter  of  Musammat  DURGA  BAI 

— APPLICANT, 

Guardians  and  Wards  Act  (VIII  of  1890),  88.  31  (3) 

(d),  4#—  Order  fixing   sum   to  be  spent  on  marriage  - 

Discretion  of  Court— Appeal— Revision— Interference 

by  High  Court. 

The  question  as  to  what  sum  the  guardian  of  ft 


.  0.  1^26]  KARAYANASWAMI  PILLAI   V.  QOPALAKRISHNA  NAIDTT. 


483 


E&inor  should  be  allowed  to  spend  on  the  marriage  of 
the  minor  is  primarily  a  matter  for  the  discretion  of 
the  District  Judge,  An  order  fixing  such  sum  is  made 
under  s.  31  (3)  (d)  of  the  Guardians  and  Wards  Act 
and  is  not  open  to  appeal.  The  High  Court  will  not, 
in  such  a  case,  interfere  in  revision  under  s.  48  of  the 
Act. 

Civil  revision  from  an  order  of  the 
District  Judge,  Agra,  dated  the  30th  May 
1925, 

Mr.  Skabd  Saran,  for  the  Applicant. 

JUDGMENT.—This  is  an  application 
in  revision  against  an  order  made  by  the 
District  Judge  of  Agra   on  the  30th  of  May 
last  with  regard  to  the  disposition  of    the 
fund*  of  certain  minors  by  their  guardian. 
The  two  children  are  aged  respectively  13 
and  14.    The  girl  is  13,  and  the  learned 
Judge,   by  the  order  complained  of,  has 
allowed  Rs.   100   for  the  marriage   of  the 
girl,  and  Rs    50  for  the  education  of   the 
boy.  The  grounds  for  this  application  are 
that  the  sum  of  Rs.  100  is  not  adequate,  and 
that  having     regard  to    the  statin  of  the 
ward  and  the  customary  expenditure  upon 
marriage  ceremonies  in  a  Hindu  family,  at 
least  Rs.  500    should  have  been    awarded. 
It  seems  to    us  that  prima  facie  there  is 
something   to    be  said   for  this  contention* 
Rs.    100  is  certainly  small.    On  the  other 
hand  it  sometimes  happens    that  people, 
when  left  to  their  own  devices,  spend  pro- 
portionately a  larger  sum  than  is  prudent 
upon  marriage  ceremonies  and  we  appreciate 
the  fact  that  in  all  probability  the  Judge 
was  desirous    of  preventing   extravagance, 
and    of    protecting    the     interests  of  the 
minors  during  the  remaining   part  of  their 
tutelage,  having  regard  to  the  total  funds 
available    for  their     benefit.     These    are 
matters  strictly  within  the  discretion  of  the 
District    Judge,    the  Act  having    rightly 
vested  jurisdiction    in  the  District  Judge, 
who    is  the  principal  (Jivil  Court  in  the 
locality    to    decide  what  is   best  in  such 
matters,  having  regard  to  the  interests  of 
the  minors  in  the  future  as  well  as  in  the 
present.    The  learned  Judge,  in  any  event, 
is  in  a  better  position  than  the  High  (Jourt 
to  know  what  proportion  of  the  funds  avail- 
able ought  to    be  allowed  to  be  expended 
upon  an  important  event  like  a  miiTiug-!. 
We  have  said  all  this  in  order  to  indicate 
that,  while  wa  feel  that  there  is    something 
to  ba  said  for    tha  applicant,  on  the  other 
hand  we  are  bound  to  recognise  that  we  are 
not  really  in,  a  position  to  review  an  order 
of  the  Judge  of  this  kind,  and  that  the  law 
left  it  entirely  in  his  discretion,  It  is 


admitted  that  the  order,  being  one  apparent- 
ly under  s.  31,  sub-s.  3,  cl.  (d)  is  not  an 
appealable  order.  We  are  asked  to  interfere 
under  s.  48  which  is  equivalent  to  s.  115, 
C.  P.  0.  We  are  of  opinion  that  revision 
does  not  lie  in  a  matter  which  is  purely  a 
question  of  amount,  and  a  question  of  dis- 
cretion in  the  Court  below,  and  we  do  not 
think  that  the  case  cited  from  the  Lahore 
Court,  in  which  a  Single  Judge  expressed 
an  opinion,  which  was  only  a  dictum,  that 
a  revision  might  lie,  is  an  adequate  author- 
ity to  justify  interference  in  revision.  On 
the  other  hand  we  appreciate  the  motives 
which  have  led  to  this  application,  and  we 
think  that  it  is  possible  that  the  learned 
Judge  after  considering  our  observations 
might  come  to  the  conclusion  on  re-con- 
sideration that  the  amount  might  well  be 
increased  without  injury  to  the  future  pros- 
pects of  the  minors. 

We,  therefore,  direct  that  a  copy  of  this 
order  be  sent  to  the  learned  Judge  with  an 
intimation  that  we  think  that  the  better 
course  would  be  for  him  to  give  notice  to 
the  parties  and  re-open  the  matter  with  a 
view  to  considering  whether  the  sum  of 
Rs.  100  for  the  marriage  expenses  is  in- 
sufficient In  form  this  application  is 
rejected. 

z.  K,  Application  rejected. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  715  OP  1923* 

August  13,  1925, 

Present: — Mr  Justice  Jackson. 

NARAYANASWAMI  PILLAI— 

PLAINTIFF — PETITIONER 

versus 

QOPALAKRISHNA  NAIDU-DsFENOANT 
— RESPONDENT. 

Trustee  —Debt,  incurring  of,  by  trustee— Suit  after 
ccaiinj  to  be  trustee — Proper  decree. 

Where  a  trustee  incurs  a  debt  without  charging 
the  trust  propsrties,  there  13  a  presumption  that  the 
creditor  lent  tha  money  on  his  personal  credit,  [p.  484, 
col.  l.J 


Sunlaresatn.  Ghettiarv.  Viswanatha  Pandarasannadhi 
72  Inci.  Gas.  103;  45  M.  703;  31  M.  L.  T.  66;  U  L  W 
83,  43  M.  L.  J.  147;  (1922)  M.  W.  N.  444;  (1922)  A.  L 
K.  (AI)402,  followed. 

In  a  suit  by  a  plaintiff  for  recovery  of  money  due 
for  fireworks  supplied  to  the  defendant  as  trustee  of 
a  tample,  the  defendant  is  personally  liabb,  even 
though  on  tha  date  of  suit  he  teu  ceased  to  b«  a 
trustee,  [ffrul.] 


BAGO  V,  RO8HAN  BEG. 


i.  U, 


Petition,  under  0.  25  of  Act  IX  of  1887, 
praying  the  High  Court  to  revise  a  decree 
of  the  Court  of  the  District  Munsif, 
Negapatam,  dated  the  19th  March  1923,  in 
8.  0.8.  No.  107  of  1922. 

Mr.  Af.  S.  Venkatarama  Iyer,  for  the 
Petitioner. 

JUDGMENT*— Plaintiff  sued  defend^ 
ant  for  Es.  95  for  fire-works  supplied  to  de- 
fendant as  trustee  of  a  temple.  The  District 
Munsif  found  the  claim  to  be  true,  but 
unsuited  the  plaintiff  on  the  ground  that 
defendant  was  no  longer  trustee  and  the 
temple  was  liable.  Plaintiff  seeks  to  have 
the  decree  reversed.  Defendant  may  have 
his  remedy  against  the  trust  but  it  cannot 
be  said  that  he  is  absolved  from  all  liabili- 
ty to  plaintiff  by  the  mere  fact  that  he  has 
ceased  to  be  trustee.  Such  a  trustee  has 
got  his  personal  credit  to  pledge  and 
the  presumption  should  be  that  when 
he  *  incurred  a  debt  without  charging 
the  trust  properties,  the  creditor  lent  the 
money  on  such  personal  credit.  The  prin- 
ciple would  apply  to  an  ordinary  trustee 
who  is  not  a  Sanyasi.  Lakshmindrathirtha 
Swamiar  v.  Raghavendra  Rao  (I).  In 
Sundaresam  Chettiar  v.  Viswanatha  Pand- 
arasannadhi  (2)  it  is  shown  that  the  proper 
decree  in  cases  of  this  sort  is  a  decree  for 
payment  by  the  defendant  personally  and 
out  of  the  temple  funds. 

The  defendant  does  not  appear  to  oppose 
this  petition. 

I  reverse  the  decree  of  the  lower  Court 
and  order  that  a  decree  issue  as  prayed  for 
against  the  defendant  with  costs. 

v.  N.  v.  Petition  allowed. 

(1)  59J  lud*  Cas.  287;  43  M.  795  at  p.  798;  12  L.  W. 
139;  39 Id,  Lu  J,  174;  (1920)  M,  W.  N.  568;  28  M.  L.  T. 
269. 

(2)  72  Ind.  Cas.  103;  45  M.  703;  31  M.  L.  T.  66, 16  L. 
W.  83;  43  M*  L.  J.  147;  (1922)  M.  W.  N,  444;  (1922) 
A.  L  JR.  (M,)  402, 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  1895 

OF  1921 

January  28,  1925. 

Present;— Mr.  Justice  Campbell. 

Musammat  BAGO— DEFENDANT — 

APPELLANT 

versus 
Uirta  ROSHAN  BEG— PLAINTIFF 

—RESPONDENT. 
band  Aojuwtion  Act  (I  of  Wfy,  99.  P, ;/,  l$>  90,  SI 


— Land  acquisition  proceedings— Dispute  as  to 
apportionment  of  compensation— Civil  suitt  maintain** 
ability  of  -Adjudication  by  Collector  before  award, 
effect  of — Reference^  application^  for,  before  award, 
effect  of. 

A  civil  suit  between  rival  claimants  about 
apportionment  of  compensation  awarded  under  the 
Land  Acquisition  Act  is  maintainable  where  there 
has  been  no  adjudication  of  the  dispute  by  the 
Collector,  nor  a  reference  to  the  District  Court,  [p . 
487,  col  1  ] 

[Case-law  reviewed.] 

An  application  made  before  the  award  is  given  by 
the  Collector  cannot  be  treated  as  one  for  reference 
to  Court  under  a  18  of  the  Land  Acquisition  Act  [t&id,] 

Under  s.  9  of  the  Land  Acquisition  Act  an  enquiry 
by  the  Collector  into  the  respective  interests  of  the 
various  persons  interested  in  the  land  must  be  made 
before  giving  the  final  award  and  any  such  adjudica* 
tion  made  after  the  award  is  without  jurisdiction. 
[p.  485,  col.  2.] 

Miscellaneous  appeal  from  an  order  of 
the  District  Judge,  Ferozepore,  dated  the 
22nd  May  1924,  remanding  that  of  the  Fourth 
Class,  Sub- Judge,  Ferozepore,  dated  the  8th 
January  1924. 

Lala  Fakir  Chand,  for  the  Appellant. 

Lala  Kanshi  Ram,  for  the  Respondent* 

JUDGMENT,— Certain  land  was 
owned  jointly  by  two  brothers,  Roshan  Beg 
and  Khandal  Beg.  The  latter  died  leaving 
a  widow,  and  the  Revenue  Records  showed 
the  land  was  owned  jointly  by  Roshan  Beg 
and  Musammat  Bago,  the  widow.  Steps 
were  then  taken  by  Government  to  acquire 
this  land  under  the  Land  Acquisition  Act. 
On  the  llth  of  November  1922,  Roshan 
Beg  presented  an  application  in  writing  to 
the  Land  Acquisition  Collector  stating  that 
Musammat  Bago  held  a  half  share  in  the 
land  as  a  life-tenant  in  lieu  of  mainten- 
ance and  that  she  was  not  entitled  to  any 
part  of  the  price  to  be  paid  by  Government 
for  it.  He  asked  that  the  whole  price 
should  be  paid  to  him  or  else  half  the 
money  deposited  in  some  Bank  and-  the 
interest  given  to  Musammat  Bago  for  so 
long  as  she  lived. 

On  the  14th  of  November  1922  the  Collec* 
tor  delivered  his  formal  award  under  s,  li  of 
the  Act  in  which  he  made  no  mention  of 
the  dispute  between  Roshan  Beg  and  Mu* 
sammat  Bago.  In  the  award  statement  of 
the  same  date  the  Collector  entered  the 
price  of  this  land,  namely,  R&,  1,451-13-6, 
as  apportioned  equally  between  Roshan 
Beg  and  Musammat  Bago,  w  2.,  Rs.  725^-9 
to  each.  Other  statements  attached  to  the 
award  show  that  He.  725-9*9  was  paid  to 
Ro&han  Beg  on  the  15th  of  November  and 
that  Musammat  Bale's  money  was  entered 
as  DE disbursed  owipg  to  Eon-atteodance, 


B&QO  V.  ROSHAN  BEG, 


485 


On  the  15tb  of  November,  but  not  before, 
the  Collector  proceeded  to  enquire  into 
Boshan,  Beg's  petition  of  the  llth  of  No- 
vember and  on  that  day  he  recorded 
Mvsammat  Bago's  statement  claiming  that . 
lialj  of  the  compensation  should  be  paid  to 
her  because  she  and  Roshan  Beg  were  in 
separate  possession  of  definite  halves  of 
the  land.  The  order  passed  by  the  Collect- 
or on  the  same  day,  the  15th  of  November 
was  that  the  amount  due  to  Musammat 
Bago  was  to  be  kept  in  deposit  and  that 
the  record  of  a  criminal  case  in  which 
Roshan  Beg's  son  had  been  aentenced  to 
death  should  be  sent  for. 

Thereafter  there  were  various  adjourn- 
ments, and  it  was  not  until  the  23rd  of  Feb- 
ruary 1923,  that  the  application  came  before 
the  Collector  for  final  decision.  By  that 
time  the  six  weeks  within  which  Roshan 
Beg  could  have  applied  for  a  reference  to 
the  Court  under  s.  18  had  expired.  Counsel 
appeared  before  the  Collector  for  both 
Musammat  Bago  and  Roshan  Beg,  and  ap- 
parently arguments  centered  round  the 
question  whether  the  application  of  the  llth 
of  November  could  be  taken  as  one  for  a 
reference  to  the  Court  under  s.  18.  The 
Collector  decided  that  it  qould  not,  because 
it  did  not  expressly  ask  that  the  matter 
should  be  referred  to  the  Court.  He  might 
also  very  well  have  added  a  second  reason 
that  the  application  had  been  presented 
before  the  award  had  been  made.  Tha 
Collector  wound  up  his  order  by  saying  'I 
nee  no  reason  to  go  beyond  the  entries  in 
the  revenue  papers  and  direct  that  the 
award  (sic)  may  be  divided  in  accordance 
with  those  entries.11 

On  the  10th  of  March  1923,  Roshan  Beg 
instituted  the  suit  of  which  this  second 
appeal  is  the  result,  to  recover  from  Musam- 
mat Bago  Rs.  725-9-9.  The  Trial  Court  held 
that  such  a  suit  did  not  lie  in  view  of  the 
terms  of  the  Land  Acquisition  Act  and 
certain  rulings  which  will  be  discussed 
presently,  This  decision  was  reversed  on 
appeal  by  the  learned  District  Judge  who 
took  the  view  th^t  since  the  Collector's 
award  did  not  adjudicate  upon  the  claim 
of  Roehan  Beg  against  Musammat  Bago  he 
was  entitled  to  maintain  a  suit  for  recovery 
of  the  money  in  a  Civil  Court,  The  appeal 
accordingly  was  accepted  and  the  suit  was 
remanded  fo*  decision  on  the  merits.  Mu- 
sain  mat  Bago  haa  como  to  this  Court  on 
second  appeal  and  her  claim  that  the  Trial 


Court  had  no  jurisdiction  to  entertain  the 
suit  is  supported  by  a  decision  of  the  Gal* 
cutta  High  Court  printed  as  Saibesh 
Chandra  Sarkar  v.  Bejoy  Chand  Mohatap 

The  relevant  provisions  of  the  Land 
Acquisition  Act  are  as  follows: — Under  s.  9 
the  Collector  is  obliged  to  serve  notice  of 
the  intended  acquisition  on  all  person* 
known  to  be  interested  and  to  call  upon 
them  to  appear  and  state  _ amongst  other 
matters  the  nature  of  their  respective  inter* 
eats  in  the  land.  Presumably  in  response 
to  such  notice  Roshan  Beg  put  in  his 
written  application  of  the  llth  of  November. 
Under  s.  11  on  the  day  fixed  for  enquiry 
the  Collector  is  directed  to  proceed  to  en- 
quire into  various  matters  including  the 
respective  interests  of  the  persons  claiming 
the  compensation  and  to  make  an  award 
under  his  hand  of  the  true  area  of  the  land, 
the  compensation  which  in  his  opinion 
should  be  allowed  for  the  land,  and  the 
apportionment  of  the  said  compensation 
among  all  the  persons  known  or  believed  to 
be  interested  in  the  land,  of  whom,  or  of 
whose  claims,  he  has  information,  whether  or 
not  they  have  respectively  appeared  before 
him,  Section  12  then  lays  down  that  that 
award  shall  be  filed  in  the  Collector's  office 
and  shall  be  final  and  conclusive  evidence, 
as  between  the  Collector  and  the  persons 
interested,  whether  they  have  respectively 
appeared  before  the  Collector  or  not,  of  the 
true  area  and  value  of  the  land,  and  the 
apportionment  of  the  compensation  among 
the  persons  interested.  Section  18  of  the 
Act  provides  that  any  person  interested 
who  has  not  accepted  the  award  may,  by 
written  application  to  the  Collector  require 
that  the  matter  be  referred  by  the  Collector 
for  the  determination  of  the  Court,  and 
this  is  to  be  done  within  six  weeks  of  the 
date  of  the  award  if  the  person  was  present 
or  represented  before  the  Collector  when 
the  award  was  made.  Under  s.  30,  when 
the  amount  of  compensation  has  been 
settled  under  s.  11,  if  any  dispute  arises  ad 
to  the  apportionment,  the  Collector  may 
refer  such  dispute  to  the  decision  of  the 
Court.  Section  31  requires  the  Collector  to 
tender  payment  of  the  compensation  award- 
ed by  him  to  the  persons  interested,  and 
in  the  second  sub-section  it  is  provided 
that  if  they  do  not  consent  to  receive  the 
payment  or  if  there  be  a  dispute  the  Col- 

(1)  65  Ind.  Cae,  711;  26  0,  W.  N.  5C6;  (1922^  A,  I, 
ft,  (0.)  4,  ' 


488 


3AGO  V.  K08HAN  BEG, 


[92  I.  0, 1926] 


lector  must  deposit  the  amount  of  the  com- 
pensation in  the  Court  to  which  a  reference 
under  s.  18  would  be  submitted.  There 
tare  three  provisos  to  this  sub-section,  and 
the  third  is  that  nothing  herein  contained 
shall  affect  the  liability  of  any  person,  who 
may  receive  the  whole  or  any  part  of  any 
compensation  awarded  under  this  Act,  to 
.pay  the  same  to  the  person  lawfully  entitled 
thereto. 

It  will  be  observed  that  in  the  present 
case  the  Collector  made  his  award  under 
s.  11  before  enquiring  into  the  respective 
interests  of  Roshan  Beg  and  Musammat 
Bago,  a  question  which  was  raised  before 
him  four  days  previously  by  Koshan  Beg. 
It  appears  then  from  the  law  above  quoted 
that  his  adjudication  after  enquiry  dated 
the  23rd  of  February  1923  was  made  with- 
out jurisdiction.  Neither  learned  Counsel 
before  me  claims  that  this  order  can  be 
read  as  part  of  the  award.  It  cannot  be 
an  order  on  an  application  for  review  or 
modification  of  the  award  since  it  was  on 
an  application  presented  before  the  award 
was  made.  Apparently,  therefore,  the  Col- 
lector, if  he  was  not  able  to  pass  orders 
upon  Roshan  Beg's  application  of  the  llth 
of  November  before  he  made  his  award, 
should  have  referred  the  question  to  the 
Court  under  s.  30. 

So  far  as  the  true  award  of  the  14th  of 
November  is  concerned  it  contained  an 
apportionment  of  the  compensation  between 
Musammat  Bago  and  Roshan  Beg,  but  this 
apportionment  was  made  without  any  en- 
quiry into  their  respective  interests,  such  as 
8,  11  directs  the  Collector  to  make. 

Most,  if  not  all,  of  the  lulings  on  the 
question  whether  disputes  about  the  appor- 
tionment between  private  persons  of  com- 
pensation awarded  under  the  Land  Acqui- 
sition Act  can  be  the  subject  of  ordinary 
civil  suits  refer  to  the  earliest  case  on  the 
subject,  Raja  Nilmoni  Singh  v.  Ram  Bandhu 
Rai  (2)  which  is  a  decision  by  their  Lord- 
ships of  the  Privy  Council.  In  those  days 
the  Act  in  force  was  X  of  1870  which 
did  not  empower  the  Collector  to  decide 
any  questions  of  apportionment  of  com- 
pensation, but  obliged  him  in  s.  38,  if  any 
dispute  arose  as  to  apportionment  when 
the  amount  of  compensation  had  been  set- 
tled, to  refer  such  dispute  to  the  decision 
of  the  Court.  Section  40  of  the  Act  con- 

(2)  7  C.  38*;  4  Shome  L.  R.  263;  JO  C   L  R    393-   8 

T       A        OA.    ,*     U~«       T>     m      T        fciOA.      f     t-       -i        -,  *       "         _      _»      w 


tained  a   proviso  in  practically  the 
words  as  the  proviso  to  the  present  &.  31 
(2)  quoted  above.    In  the  case  before  their 
Lordships  there  had  been  a' dispute  between 
two  parties  about  the  apportionment  of  the 
compensation.    The  Collector  had  referred 
it  to  the  Court  and  the  Court  had  made  an 
adjudication.    One    of    the   parties    then 
brought  another  suit  to  set  aside  that  adju- 
dication.   It  was  held    that    the    proviso 
referred  to  above  applied  only  to  persons 
whose    rights   had  not   been  adjudicated 
upon  in  pursuance  of  ss.  38  and  39,  namely, 
the  sections  requiring  the  Collector  to  refer 
disputes  about  apportionment  to  the  Court 
and  the  Court  to  decide  them.    The  judg- 
ment wound  up:    "Their  Lordships  are  of 
opinion  that  the  provisions  in  this  Act  for 
the  settling  of  compensation  are  intended 
to  be  final;  and  that  the  amount  and  dis- 
tribution of  the  compensation  having  been 
settled  in  this  case  by  a  competent  Court, 
and  the  decision  not  having  been  appealed 
against,    the  settlement  is    final,   and  the 
present  suit  cannot  be  maintained  "    Ear- 
lier in  the  judgment  when  explaining  the 
necessity  for  the  proviso  in  the  Act  their 
Lordships  observed:   "But  it  may  happen, 
and  frequently  does  happen,  that  the  real 
owners,  possibly  being  infants  or  persons 
under  disability,  do  not  appear,  and  are  not 
dealt  with  in  the  first  instance;  and,  there- 
fore, a  provision  of  this  sort  is  necessary 
for  the  purpose  of  enabling  the  parties  \\ho 
have  a  leal  title  to  obtain  the  compensation 
money.11 

This  ruling  has  been  considered  and 
interpreted  in  three  decisions  of  the  Cal- 
cutta High  Court  (t)  Srimati  Punnabati  Lai 
v.  Rajah  Pudmanund  Singh  Bahadur  (3), 
(ii)  Bhandi  Singh  v.  Ramadhin  Rai  (4)  and 
(Hi)  Saibesh  Chandra  Sarkar  v.  Bejoy  Chand 
Mohatap  (1)  and  by  the  Punjab  Chief  Court 
in  Sher  Khan  v,  Shamsher  Khan  (5)  which 
was  followed  in  Amolak  Shah  v.  Charon 
Das  (6). 

Rajah  Nilmoni  Singh  v.  Ram  Bandhu 
Rai  (2)  is  a  case  almost  exactly  parallel  to 
the  present  case.  There  the  plaintiff  sued 
to  recover  compensation  awarded  under  the 
Land  Acquisition  Act  against  the  person 
who  actually  received  the  money.  It  was 
ruled  that  she  (the  plaintiff  was  a  female) 

(3)  7  0.  W.  N.  538. 

(4)  10  C  W,  X.  991;  2  0.  L.  J.  359. 

(5)  37  P.  tt. 1905;  35  P.  L.  R.  1905. 

(6)  17  Ind.  Ca8.  684;  52  P,  Ii,  1913;  16  P.  W,  R, 
1913;  14  P,  U  R,  1912  Sup,          -      •< 


[92 1,  0.  1&28J 

was  not  precluded  from  maintaining  the 
suit  merely  by  reason  of  her  having  ap- 
peared before  the  Collector  in  the  acquisi- 
tion proceedings,  that  the  award  of  the 
Collector,  who  under  s.  11  is,  no  doubt,  au- 
thorised to  deal  with  the  question  of  appor- 
tionment, is  declared  by  s.  12  of  the  Act  to 
be  final  only  as  between  the  Collector  on 
the  one  hand  and  the  body  of  claimants  on 
the  other  and  not  as  between  the  claimants 
inter  $e>  that  a  claimant  is  not  precluded 
from  advancing  his  or  her  claim  against 
another  claimant  by  suit  in  the  Civil  Court 
as  provided  by  the  last  proviso  to  s.  31  (2) 
of  the  Act,  and  that  to  hold  that  he  or  she 
is  so  precluded  would  be  to  extend  the 
doctrine  of  constructive  res  judicata  a  great 
deal  too  far.  The  learned  Judges  con- 
sidered that  this  view  was  in  accordance 
with  that  taken  by  their  Lordships  of  the 
Privy  Council  in  Raja  Nilmoni  Singh  v. 
Ram  Bandhu  Rai  (2)  and  interpreted  that 
decision  in  its  allusions  to  ss.  38  and  39  of 
the  old  Act  as  referring  strictly  to  an 
adjudication  of  a  Civil  Court  upon  a]refer- 
ence  by  the  Collector. 

The  same  view  was  adopted  and  expressed 
more  elaborately  by  Mr.  Justice  Mookerji 
in  Bhandi  Singh  v  Ramadhin  Rai  (4).  With 
reference  to  s.  18  he  observed  that  there 
was  a  difference  between  an  objection  re- 
lating to  the  measurement  of  the  land  or 
the  amount  of  the  compensation  and  one 
relating  to  the  apportionment  of  the  com- 
pensation among  persons  interested  and 
that  a  question  of  the  latter  character  could 
be  determined  either  by  a  reference  as 
comtemplated  by  s.  18  or  else  by  a  suit  at 
the  instance  of  a  person  who  might  law- 
fully be  entitled  as  against  another.  This 
he  appointed  out  was  a  question  with  which 
the  Collector  would  have  no  concern  what- 
soever and  he  held  that  by  reason  of  the 
3rd  proviso  to  s.  31  (2)  the  Land  Acquisition 
Judge  and  the  ordinary  Court  have  prac- 
tically concurrent  jurisdiction  to  decide  dis- 
putes about  the  apportionment  of  compen- 
sation. What  he  apprehended  to  be  the 
rule  deducible  from  Raja  Nilmoni  -Singh  v. 
Ram  Bandhu  Rai  (2)  was  that  if  a  litigant 
had  made  his  choice  and  availed  himself 
of  a  reference  to  the  Court  under  s.  18,  he 
could  not  again  ask  for  an  opportunity  to 
litigate  the  same  matter  in  the  ordinary 
Court. 

Both  these  decisions  were  dissented  from 
in  Saibesh  Chandra  Sarkar  v.  Bejoy  Chand. 
MoHatap  (1),  So  far  as  Bhandi  Singh  v. 


IUGO  V.  BOS  HAN  BECK 


'487 


Ramadhin  Rai  (4)  was  concerned  the  learn* 
ed  Judges  pointed  out  with  truth  that  in 
the  particular  case  before  him  it  was  un- 
necessary for  Mr.  Justice  Mookerji  to  coa- 
sider  whether  the  Special  Court  under  the 
Land  Acquisition  Act  and  the  ordinary 
Civil  Courts  have  or  have  not  concurrent 
jurisdiction.  With  every  deference,  however, 
I  do  not  think  that  their  dissent  from 
what  was  held  in  Srimati  Punnabati  Dai 
v.  Rajah  Pudmanund  Singh  Bahadur  (3) 
is  very  convincing.  The  learned  Judges 
seem  to  have  proceeded  very  largely  iipon, 
what  they  considered  it  would  be  reason- 
able to  hold  was  the  intention  of  the  Legis- 
lature when  providing  a  special  remedy  in, 
the  Land  Acquisition  Court,  whereas  with 
all  respect  I  venture  to  think  that  they 
should  have  looked  rather  to  the  actual 
term  of  the  Act  than  to  the  probable  inten- 
tion of  the  Legislature.  They  emphasized 
the  second  passage  quoted  above  from  Raja 
Nilmoni  Singh  v.  Ram  Bandhu  Rai  (2) 
commencing.  "But  it  may  happen  and  fre- 
quently does  happen"  and  they  held  that 
the  application  of  the  proviso  to  s  31  (2) 
must  be  limited  to  cases  where  the  person 
is  under  disability  or  is  not  served  with 
notice  of  the  proceedings  before  the  Col- 
lector. They  further  expressed  the  opinion 
that  the  reason  why  their  Lordships  of  the 
Judicial  Committee  referred  to  the  adjudi- 
cation under  ss.  38  and  39  of  the  old  Act 
was  that  the  Collector  was  then  bound  to 
refer  any  question  of  apportionment  to  the 
Court  and  that  question  had  to  be  decided 
by  the  Civil  Court.  The  case  before  them 
was  whether  a  party  served  with  notice 
under  s.  9  who  did  not  appear  at  all  in  the 
land  acquisition  proceedings  and  did  not 
apply  for  any  reference  under  s.  18  of  the 
Act  could  afterwards  maintain  a  suit  in  the 
ordinary  Civil  Court  to  recover  compensa- 
tion paid  to  another  person.  They  decided 
that  Ije  could  not  do  so  because  the  proviso 
to  s,  31  (2)  has  a  strictly  limited  application 
and  because  it  would  not  be  reasonable  to 
hold  that  the  Legislature,  having  provided 
a  special  remedy  in  the  Land  Acquisition 
Court,  intended  to  make  it  optional  with 
a  party  to  apply  for  a  reference  or  to  in- 
stitute a  suit  in  the  ordinary  Civil  Court. 

Sher  Khan  v.  Shamsher  Khan  (5)  is  a 
Division  Bench  ruling  and  the  facts  of  the 
case  are  not  stated  explicitly  in  the  judg- 
ment. It  was  one  of  contention  between 
two  claimants  for  the  apportionment  of^ 
compensation,  and  it  wad  held  that,  since  th$ 


468 


8AGO  V.  ROBHAN  BB3. 


[92  I.  0.  1926J 


fclaiii  tiffs'  claim  had  been  adjudicated  on 
by  the  Collector  and  they  dicl  not  within 
the  prescribed  time  avail  themselves  of 
their  right  to  demand  reference  to  the  Court 
,uuder  s.  18,  they  had  exhausted  their 
remedy  and  their  separate  suit  in  Civil 
Court  had  been  rightly  dismissed.  Raja 
Nilmoni  Singh  v.  Ram  Bandhu  Rai  (2)  was 
cited  as  authority  for  the  view  that  the 
proviso  to  s.  31  (2)  does  not  permit  a 
person,  whose  claim  had  been  adjudicated 
Upon  in  the  manner  pointed  out  by  the 
Act,  to  have  that  claim  re-opened  and  again 
heard  in  another  suit. 

This  case  and  Amolak  Shah  v.  Charan 
Das  (6)  are  distinguishable  from  the  pre- 
sent case  since  in  my  view  there  has  been 
HO  lawful  adjudication  by  the  Collector 
between  Roshan  Heg  and  Musammat  Bago. 
If  no  definite  point  for  decision  had  been 
put  before  him  in  the  shape  of  Roshan 
Beg's  application  his  apportionment  might 
have  been  regular;  but  under  s.  11  he  was 
bound  to  make  an  enquiry  into  any  ques- 
tioh  which  arose  regarding  the  interest  of 
the  several  persons  entitled  to  compensation 
and  he  did  not  do  so  in  respect  of  the 
question  raised  by  Roshan  Beg  until  after 
he  had  made  his  award. 

It  remains  to  notice  a  Division  Bench 
ruling  of  the  High  Court  [Chandu  Lai  v. 
Ladli  Begam  (7)]  in  which  it  was  held  that 
where  a  Collector  in  his  award  had  not 
adjudicated  upon  the  claim  of  the  plaintiff 
the  latter's  suit  in  a  Civil  Court  for  her 
proportionate  share  in  the  amount  of  com- 
pensation allowed  was  competent  notwith- 
standing that  she  did  not  apply  for  a 
reference  to  the  Court  under  s.  18  of  the 
Act.  The  plaintiff  in  that  case  had  not 
appeared  before  the  Collector  at  all  and  it 
is  not  stated  whether  notice  had  issued  to 
her.  She  herself  asserted  that  she  had  had 
no  knowledge  of  the  acquisition  proceed- 
ings. The  learned  Judge  ruled  that  the 
proviso  to  e.  31  (2)  clearly  applied  to  such 
a  case,  they  distinguihsed  Sher  Khan  v. 
Shamsher  Khan  (5)  and  Amolak  Shah  v. 
Char.an  Das  (6)  and  they  cited  with  appro- 
val Srimati  Punnabati  Dai  v.  Rajah  Pud- 
manund  Singh  Bahadur  (3). 

This  last  decision  is  riot  quite  so  directly 
in  point  as  the  learned  District  Judge  took 
it  to  be,  since  in  the  present  case  Roshan 
Beg  did  receive  notice  and  appear  before 
the  Collector  and  he  is  recorded  as  having 

(7)  49  Itid.  Cas,  657;  83  l\  B.  1919;  18  T.  W.  K. 
1919. 


accepted  payment  of  a  less  .amount 
he  now  claims  without  protest  other  than 
what  is  contained  in  his  previous  appli- 
cation of  llth  November.  But  the  judg- 
ment fortifies  me  in  my  preference  for 
what  was  laid  down  in  Srimati  Punnabati 
Dai  v.  Rajah  Pudmanund  Singh  Bahadur 
(3)  as  against  Saibesh  Chandra  Sarkar  v. 
Bejoy  Chand  Mohatap  (1).  With  some 
diffidence  I  suggest  that  the  learned  Judge, 
who  decided  the  latter  case,  in  considering 
the  intention  of  the  Legislature  might  have 
reflected  upon  the  possibility  of  the  Legis- 
lature, when  framing  the  proviso  to  s.  31 
(2),  having  intended  that  the  comparatively 
important  Court  of  the  District  Judge  need 
not  in  every  instance  be  seddled  with  the 
task  of  deciding  every  question  arising 
between  private  individuals  about  the  ap- 
portionment of  petty  sums,  and  that  such 
individuals  should  be  permitted  to  take 
their  dispute  to  an  inferior  and  possibly 
cheaper  Court.  After  all  the  words  in  s.  18 
are  *'may  require'1  and  not  "shall  require," 
and  the  expression  "any  person"  in  the 
third  proviso  to  s.  31  (2)  does  not,  in  my 
humble  judgment,  carry  the  restricted 
meaning  put  upon  it  by  the  learned 
Judge,  since  the  rest  of  the  sub-  sec- 
tion which  the  third  proviso  qualifies 
relates  definitely  to  persons  who  have 
actually  appeared  before  the  Collector.  In 
the  present  instance  let  it  be  taken  that 
Roshan  Beg  accepted  without  any  protest 
payment  of  the  amount  apportioned  and 
tendered  to  him  by  the  Collector.  By  the 
second  proviso  to  s.  31  (2)  he  thereby  dis- 
entitled himself  from  making  an  applica- 
tion for  a  reference  under  s.  18;  but  under 
the  third  proviso  nothing  contained  in  the 
second  proviso  can  affect  the  liability  of 
Musammat  Bago,  another  person  interested, 
to  pay  to  Roshan  Beg  any  part  of  the  com- 
pensation to  which  he  is  lawfully  entitled. 
And  by  what  other  means  thaji  by  a  suit 
in  a  Civil  Court  could  Roshan  Beg,  who  is 
shut  out  from  a  remedy  under  s.  18,  enforce 
that  liability?  The  words  "nothing  herein 
contained11  in  the  third  proviso  must,  'it 
seems  to  me,  cover  everything  that  has  gone 
before,  including  the  second  proviso. 

If  Roshan  Beg  accepted  payment  under 
protest,  then  the  Collector  prevented  him 
from  seeking  any  remedy  uiider  s.  16  by 
retaining  the  petition  of  the  llth  November 
for  his  own  subsequent  decision  and  by 
failing  to  pass  orders  upon  it  until  after  the 
time  limit  for  an  application  for  a  reference 


[92  I.  0,  19261 


MA  TOK  V.  MAYIK. 


489 


had  expired.  It  is  to  be  noted  too  that  the 
disputed  amount  which  was  withheld  from 
-If-rf;",1- ,-  Bago  was  deposited  in  the 
Treasury  and  not  in  the  Court  under  8.  31 
(2).  All  the  equities,  then,  are  in  favour  of 
Roshan  Beg  being  permitted  to  sue  in  an 
ordinary  Court  to  establish  his  claim. 

There  is  of  course  a  conflict  between  the 
view  taken  in  Srimati  Punnabati  Dai  v. 
Rajah  Pudmanund  Singh  Bahadur  (3)  and 
that  taken  in  the  two  Punjab  rulings  Sher 
Khan  v.  Shamsher  Khan  (5)  and  Amolak 
Shah  v.  ^Charan  Das  (6).  The  former  is 
that  the  jurisdiction  of  the  ordinary  Civil 
Courts  is  ousted  only  when  the  claim  of  the 
aggrieved  party  has  already  been  before  the 
District  Court  on  a  reference  under  s.  18  or 
0.  30  of  the  Land  Acquisition  Act.  The 
latter  refuses  such  party  any  relief  in  a  Civil 
Court  if  his  claim  has  been  adjudicated 
upon  by  the  Collector  and  there  has  been 
no  reference  to  the  District  Court.  This 
divergence  requires  no  examination  in  the 
present  case,  because  for  the  reason  above 
stated  I  do  not  consider  that  the  Collector's 
award  of  the  14th  November  was  an  adjudi- 
cation of  lloshan  Beg's  claim, 

I  hold  that  the  decision  of  the  learned 
District  Judge  was  correct  and  I  dismiss 
the  appeal  with  costs, 

N.  a,  Appeal  dismissed. 


RANGOON  HIGH  COURT. 

SPECTAL  SECOND  CIVIL  APPEAL  No.  115 

OF  1924. 

January  12,  1925. 

Present ;— Mr.  Justice  Pratt. 

MA  TOK  AND  OTHERS— APPELLANTS 

versus 
MA  TINT  AND  OHTSRS— RRSPONDENTS, 

Civil  Procedure  Code  (Act  V  of  1908),  s.  77— Res 
judicata  between  co-defendants,  conditions  of— Limi- 
tation Act  (IX  of  1908\  Sch.  I,  Art.  123— Suit  by 
heir  to  recover  share  of  estate  of  deceased  from  co- 
heirs— Limitation  applicable, 

la  order  that  a  decision  should  operate  as  res 
jbdicata  between  co-defendants  there  must  have  been 
a  conflict  of  interest  between  the  co-defendants,  and 
it  should  have  been  necessary  to  decide  on  that  con- 
flict in  order  to  give  the  plaintiff  relief  appropriate 
to  his  suit  and  the  judgment  must  contain  a 
decision  of  the  question  raised  as  between  the  co- 
defendants  defining1  the  rights  and  obligations  of  the 
defendants  inter  se.  [p.  490,  col  1.1 

There  is  no  reason  why  a  different  aspect  should 
be  given  to  a  claim  for  a  distributive  share  of  the 
estate  of  a  deceased  person  against  an  administrator, 


who  should  have  distributed  the  estate  and  given  a 
share  to  the  plaintiff  but  failed  to  do  so,  from  the 
aspect  of  a  similar  claim  against  one  or  more  heirs 
of  a  deceased  person  who  shoxild  have  amicably 
agreed  to  a  partition  of  the  estate  and  given  a  share 
to  the  plaintiff  but  have  failed  to  do  so.  Such  a  suit 
is  governed  by  Art.  123  of  Sch.  I  to  the  Limitation 
Act.  [p.  490,  col.  2] 

JUDGMENT.— Plaintiffs  as  surviving 
descendants  of  Ma  Min  Sin  and  Ma  Kin, 
daughters  of  Po  Kyu,  deceased,  sued  Ma 
Tok  and  other  representative^ of  Ko  Hmu, 
a  son  of  Po  Kyu,  the  son  of  ~Ma  Kin  and 
others,  for  possession  of  half  the  estate  of  Po 
Kyu  on  payment  of  Rs.  750  being  half  1h6 
charges  incurred  by  Ma  Tok  on  litigation 
for  recovery  of  the  estate. 

Plaintiffs1  case  was  that  Ma  Tok  held  the 
lands  on  behalf  of  the  co-heirs  subject  to 
discharge  of  the  lien,  which  she  possesses 
by  reason  of  the  expenses  incurred  by  her 
on  litigation  in  connection  with  the  estate. 

In  a  previous  suit  Po  Ka  sued  Ma  Tok 
and  other  representatives  of  Ko  Hmu  for 
one- fourth  share  of  the  estate  of  Po  Kyu  and 
obtained  a  decree.  The  suit  went  up  to  the 
Court  of  the  Judicial  Commissioner,  who 
held  that  Ma  Tok  had  admitted  Po  Ka's 
interest  in  the  suit  lands,  and  that  Po  Ka  had 
proved  that  the  lands  belonged  to  the  estate 
of  Po  Kyu,  which  remained  undivided  in 
the  hands  of  Ko  Hmu  and  his  widow  Ma 
Tok,  and  that  consequently  Po  Ka  was 
entitled  to  one-fourth  of  the  estate  on  pay- 
ment of  one- fourth  of  the  charges  incurred 
by  Ma  Tok  in  connection  therewith. 

In  the  previous  suit  the  present  plaintiffs 
were  co-defendants  with  Ma  Tok.  The  Trial 
Court  has  found  that  the  lands  in  suit  were 
not  part  of  the  estate  of  Po  Kyu ;  but  on 
appeal  the  District  Court  has  held  that  the 
finding  of  the  Judicial  Commissioner  that  the 
lands  were  ancestral  property  is  binding  in 
the  present  suit  and  that  the  subject-matter 
of  it  is,  therefore,  res  judicata. 

No  doubt  a  finding  in  a  previous  suit 
may  undei  certain  circumstances  be  binding 
as  between  the  defendants,  but  it  is  only 
with  very  strict  reservation 

In  Nga  Thet  Tha  v.  Mi  Rye  Gyi  (1),  it  was 
laid  down  that  where  an  adjudication  bet- 
ween the  defendants  is  necessary  to  give  an 
appropriate  relief  to  plaintiffs^  there  must 
be  such  an  adjudication,  and  in  such  a  case 
adjudication  will  be  res  judicata  between 
the  defendants  as  well  as  between  the 
plaintiff  and  the  defendants;  but  for  this 
effect  to  arise  there  must  be  a  conflict  of 

(1)  U,  B,  B.  (1907-09),  C.  P.  0.,  5. 


490 


MA  TOK  V.  MA  YIN. 


[92  I.  0. 1926] 


interest  between  the  defendants  inter  se. 
I  have  studied  the  judgment  of  the  learned 
Judicial  Commissioner  in  Civil  Appeal 
No.  404  of  1915  and  it  is  quite  clear  to  my 
mind  that  there  was  no  adjudication  as 
between  Ma  Tok  and  the  plaintiffs  in  the 
present  case. 

The  learned  Judge  distinctly  used  the 
expression  that  as  against  Ma  Tok  and  her 
children,  Po  Ka  was  entitled  to  one-fourth. 
He  nowhere  came  to  an  express  finding  that 
the  present  plaintiffs  were  entitled  to  a 
share  as  against  Ma  Tok. 

The  limits  within  which  an  adjudication 
can  be  res  judicata  as  between  co-defend- 
ants were  clearly  laid  down  by  a  Bench  of 
the  Calcutta  High  Court  in  Jadav  Chandra 
Sarkar  v.  Kailash  Chandra  Singh  (2).  Three 
necessary  conditions  were  there  prescribed: 
(I)  that  -there  should  be  a  conflict  of 
interest  between  the  co- defendants;  (2)  that 
it  should  be  necessary  to  decide  on  that 
conflict  in  order  to  give  the  plaintiff  relief 
appropriate  to  his  suit  ;  and  (3)  that  the 
judgment  should  contain  a  decision  of  the 
question  raised  as  between  the  co-defend- 
ants. 

In  the  earlier  Bombay  case  of  Ramchandra 
Narayan  v.  Narayan  Mahadev  (3),  it  was 
held  inter  alia  that  there  must  be  a  judg- 
ment defining  the  rights  and  obligations 
of  the  defendants  inter  se.  This  ruling  was 
followed  by  a  Bench  of  the  High  Court  at 
Lahore  in  Mehra  v.  Devi  Ditta  Mai  (4),  and 
it  was  pointed  out  that  without  necessity  a 
judgment  will  not  be  res  judicata  as  between 
defendants. 

A  similar  view  was  taken  by  a  Bench  of 
the  Bombay  High  Court  in  (7'; .• ,; ;  r/i ?•, 
Balkrishn  v.  Vasudeo  Dattatrya  (ft) 
*  I  have  no  doubt  that  the  law  on  the 
subject  is  correctly  laid  down  in  the  judg- 
ments cited  and  that  the  conditions  neces- 
sary to  make  the  subject-matter  of  the 
present  suit  res  judicata  have  not  been 
fulfilled. 

It  may  be  a  legitimate  inference  from  the 
judgment  of  the  Judicial  Commissioner  in 
the  suit  between  Po  Ka,  the  plaintiffs  in  the 
suit  now  under  appeal  and  the  defend- 
ant Ma  Tok,  that  the  property  in  suit  is 
ancestial  property  and  that  the  present 

(2)  34  Ind.  Cas.   929;  25  C.    L.  J.  322;  21  C.  W.  N. 
693. 

(3)  11  B.  216;  11  Ind.  Jur.  301;  6  Ind.  Dec,  (N.  s.)  142. 
4)  fi2  Ind.  Cae.  815;  2  L.  88;  3  L.  L.  J.  223. 

(5)  73  Ind.  Cas.  912;  47  B.  534;  25  Bom.  L.  R.  268; 
^1923)  A.  I.  R.  (B.)  203. 


plaintiffs  have  a  right  to  a  half  share  as 
against  Ma  Tok,  but  as  I  have  already  point- 
ed out,  there  has  been  no  express  adjudica- 
tion to  this  effect  as  between  the  co-defend- 
ants in  that  suit. 

I  am  unable,  therefore,  to  accept  the  view 
of  the  learned  District  Judge  that  the  sub- 
ject-matter of  the  present  suit  is  res  judi- 
cata. 

Ma  Tok  obtained  possession  of  the  dis- 
puted properly  as  the  result  of  litigation 
about  1892. 

How  long  before  that  Po  Kyu  died  is  not 
clear.  It  is  to  my  mind  incontestable  that 
suit  by  co-heirs  for  a  share  against  her  has 
been  long  barred  under  Art.  123  of  the 
First  Schedule  to  the  Limitation  Act. 

I  entirely  agree  with  the  observation  of 
Lentaigne,  J.,  in  Maung  Po  Kin  v.  Maung 
Shew  Bya  (6)  (at  page  415*),  that  there  is  no 
reason  why  a  different  aspect  should  be 
given  to  a  claim  for  a  distributive  share 
against  an  administrator,  who  should  have 
distributed  the  estate  and  given  a  share  but 
failed  to  do  so,  from  the  aspect  of  a  similar 
claim  against  one  or  more  heirs  who  should 
have  amicably  agreed  to  partition  of  the 
estate  and  given  a  share  but  failed  to  do  so. 

The  appropriate  Article  for  suits  against 
co-heirs  for  a  share  in  the  corpus  of  an  in- 
heritance is  123.  I  have  little  doubt  that, 
had  the  applicability  of  Art.  123  been 
urged  before  the  Judicial  Commissioner, 
the  result  of  Po  Ka's  suit  would  have  been 
different. 

Assuming  that  when  Ma  Tok  obtained 
the  estate  by  litigation,  she  was  willing  to 
give  the  heirs  their  legal  shares  on  receipt 
from  them  of  a  proportionate  share  of  the 
expenses  incurred  by  her,  and  that  she  was 
legally  bound  to  do  so,  yet  there  must  be  a 
limit  to  her  willingness  and  to  her  obliga- 
tion. 

She  cannot  be  expected  to  hold  the  estate 
for  ever  at  the  will  and  pleasure  of  the  other 
heirs  or  their  representatives. 

The  right  to  pay  off  a  portion  of  her  lien 
and  obtain  a  share  must  be  exercised  within 
a  reasonable  time. 

I  am  not  prepared  to  hold  that  there  was 
joint  possession  or  that  Ma  Tok  was  merely 
a  trustee  for  the  plaintiffs.  The  learned 
Judicial  Commissioner  attached  more 
importance  to  the  admission  of  Ma  Tok  be- 
fore the  Settlement  Officer  in  1912  that  Mi 


Jgjjfglnd.  Cas.  855;  1  R.4Q5;  (1934)  A,  I,  R.  (R.)  155 
*Page  of  ~ ~ ' 


I.  0.  1926J 


ASANALLI  NAQOOR  V,  MAIUDU  MEERA, 


Yin,  first  plaintiff,  is  interested  in  the  estate 
than  I  am  prepared  to  give.  It  cannot  be 
treated  as  an  unqualified  admission  that 
plaintiffs  had  a  subsisting  right  to  a  share 
in  the  estate.  Ma  Tok  may  have  said  that 
Ma  Yin  had  an  interest,  but  she  did  not 
know  the  law  of  limitation,  and  her  state- 
ment cannot  be  construed  as  an  admission 
that  Ma  Yin  still  had  a  legal  title  enforce- 
able in  Court. 

It  seems  to  me  it  would  be  iniquitous 
after  Ma  Tok  had  peaceable  possession  of 
the  estate  for  thirty  years,  having  recovered 
it  by  litigation  at  her  own  expense,  to  allow 
other  heirs  to  step  in  now  and  obtain  a 
share,  when  they  have  slept  on  their  rights 
for  so  long. 

If  their  rights  were  conceded,  no  holder 
of  ancestral  estate  which  he  had  recovered 
or  redeemed,  would  be  safe  so  long  as  co- 
heirs, or  their  legal  representatives  survived, 
nor  would  his  successors  apparently  until 
there  has  been  an  overt  act  rendering  the 
possession  adverse  to  the  co-heirs. 

The  doctrine  that  an  heir,  who  redeems  or 
recovers  ancestral  estate  with  the  consent, 
express  or  implied  of  the  co-heirs  holds  on 
their  behalf  can  be  pressed  too  far. 

In  the  present  suit,  however,  plaintiffs 
have  been  held  by  both  the  Courts  below 
to  have  failed  to  prove  their  claim  on  the 
merits.  As  I  have  held  that  the  subject- 
matter  of  the  suit  is  not  res  jndicata  the 
appeal  must,  therefore,  succeed  apart  from 
the  question  of  limitation. 

I  set  aside  the  finding  and  decree  of  the 
District  Court  and  restore  the  decree  of  the 
Sub-Divisional  Court  with  costs  through- 
out. 


491 


Z.  K. 


Appeal  allowed. 


MADRAS  HIGH  COURT. 

APPEALS  Nos.  144  AND  145  OP  1922  AND  3 

OF  1923. 

August  25,  1925. 
Present  :—  Mr.  Justice  Phillips  and 

Mr.  Justice  Eamesam. 
ASANALLI  NAQOOR  MEERA 
AND  OTHERS—  PLAINTIFF  AND  HIS  LEGAL 
s—  APPELLANTS 


versus 
K.  M.  MAHADU  MEERA  AND  OTHERS  - 

DEFENDANTS  —  RESPONDENTS. 
Civil  Procedure  Code  (Act  V  of  1908),  a.  IS—  Foreign 
ri  to  jurisdiction  ofrforeign 


— Power-of -attorney  to  appear,  whether  amounts  to  sub* 
mission — Person  invoking  jurisdiction  of  Foreign  Court 
as  plaintiff  —  Subsequent  denial  of  jurisdiction — 
Estoppel  —  13x  parte  foreign  decree,  whether  decision 
on  merits 

The  execution  by  a  person  of  a  power-of-attorney 
authorising  his  agent  to  appear  and  conduct  for  him 
litigation  in  a  Foreign  Court  amounts  to  submission 
to  the  jurisdiction  of  such  Court,  [p.  491,  col  ?.] 

Ramanathan  Chettyar  v.  Kalimulhu  Pillqy,  18  Ind. 
Cas.  J89;  37  M.  163,  21  M  L.  J.  619  and  Jannothassain 
v.  Mahamad  Ohuthu,  82  Tnd.  Oas.  424;  47  M.  877;  47  M. 
L.  J.  356;  20  L.  W.  677;  (1925)  A.  LK.  (M.)  155,  relied 
on. 

A  person  who  as  plaintiff  invokes  the  jurisdiction 
of  a  Foreign  Court  cannot  afterwards  be  allowed  to 
deny  the  jurisdiction  of  such  Court  as  a  defendant, 
[p.  492,  col.  L] 

S.  A  No  1492  of  1920,  followed. 

An  ex  parte  decree  obtained  in  Foreign  Court  must 
be  deemed  to  be  a  decree  passed  upon  the  merits  when 
there  has  been  no  •  •  *  .  *  s  defendant  [ibid  ] 

Janoothassanv  "  '  '  •  82  Ind  Cas.  425; 

47  M.  877,  47  M  L.  J.356;  20  L  W.  677;  (1925)  A.  I. 
R.  (M  )  155,  followed. 

Appeal  against  the  decrees  of  the  Court 
of  the  Subordinate  Judge,  Tuticorin,  in 
Original  Suits  Nos  4,  3  and  5  of  1920. 

Messrs.  A.  Krishnaswamy  Iyer  and  V. 
Narayana  Iyer,  for  the  Appellants. 

Mr.  Kf  Narasimha  Iyer,  for  the  Respond- 
ents. 

JUDGMENT, — These  are  appeals  in 
suits  filed  on  judgments  obtained  in  the 
Colombo  Court  against  a  partnership  whose 
members  were  the  defendants  or  their  pre- 
decessors in-interest.  The  lower  Court  has 
found  that  the  partnership  did  not  submit 
to  the  jurisdiction  of  the  Colombo  Court, 
but  as  against  gome  of  the  defendants  there 
was  jurisdiction  because  they  individually 
submitted  to  that  jurisdiction.  It  has  been 
held  in  Ramanathan  Chettyar  v.  Kalimuthu 
Pillay  (1)  and  also  in  J anoothassan  v. 
Mahamad  Ohuthu  (2),  that  the  execution  of 
the  power-of-attorney  authorising  an  agent 
to  conduct  litigation  in  a  Foreign  Court  is 
a  submission  to  jurisdiction.  In  the  present 
case,  it  is  clear  from  the  deed  of  partner- 
ship aat1  from  the  power  of- attorney  by  one 
of  the  managing  partners  Exs.  H  and  J 
that  the  holder  of  the  power  was  authorised 
to  file  suits,  to  defend  suits  and  to  carry  on 
all  manner  of  proceedings  in  the  Courts  in 
Ceylon.  It  is  suggested  for  the  respond- 
ents that  these  documents  were  not  in  force 
at  the  time  these  suits  were  filed,  because 
the  partnership  has  been  dissolved.  ^  The 
only  evidence  we  have  on  this  point  is  the 
statement  of  the  plaintiff  that  he  thinks 

(1)  18  Ind.  Cas,  189;  37  M.  163;  24  M.  L,  J.  619. 
2    82  Ind.  Cas.  425;  47  M.  877;  47  M.  L,  JJ  356;  20 
L.  W,  077;  (1925)  A.  I  R.  (M.)  155J 


492 


OOK0L  DAS  V,  NATflU. 


that  the  partnership  was  dissolved  at  about 
the  time  of  the  riots  and  the  statement  of 
the  2nd  defendant  that  the  business  of  the 
firm  ended  in  1914,  but  the  2nd  defendant 
adds,  "I  did  not  authorise  my  partners 
there  to  contest  the  suits  in  Ceylon1*,  thus 
implying  that  there  was  a  parnership  exist- 
ing. On  this  evidence  it  is  quite  impossible 
to  come  to  the  conclusion  that  the  partner- 
ship had  been  dissolved  at  the  date  on 
which  the  suits  were  filed.  The  mere  fact 
that  the  partners  ran  away  to  India  on 
account  of  the  riots  in  Ceylon  does  not,  as 
the  Subordinate  Judge  remarks,  terminate 
the  partnership  and  in  the  absence  of  any 
other  evidence  that  the  partnership  was 
terminated,  we  must  hold  that  this  deed  of 
partnership  and  the  povver-of-attorney  were 
in  full  force  on  the  date  of  the  suits.  There 
is  also  an  additional  circumstance  which 
would  possibly  give  the  Ceylon  Court 
jurisdiction  and  that  is  the  fact  that  the 
defendants  firm  actually  filed  suit  in  the 
Ceylon  Court  and  having  come  in  as  plaint- 
iffs can  hardly  be  allowed  as  defendants  to 
deny  the  jurisdiction  which  they  themselves 
invoked  and  in  this  connection  I  would 
refer, to  a  judgment  in  Second  Appeal 
No.  1492  of  1920  (not  reported).  The 
question  whether  the  plaintiff  obtained  an 
assignment  of  the  decrees  benami  for  the 
defendants  firm  was  raised  and  contested 
in  the  Ceylon  Court  and  consequently  that 
finding  is  now  conclusive  under  s.  13  of  the 
C.  P.  C. 

The  respondents  raised  a  further  point 
that  in  a  case  in  which  there  was  no 
appearance,  the  decision  cannot  be  said  to 
have  been  upon  the  merits  but  this  question 
has  been  fully  discussed  in  Janoothassan^ 
v.  Mahamad  Ohuthu  (2),  to  which  one  of  us 
was  a  party  and  we  are  prepared  to  follow 
that  decisiop.  $gain. 

In  the  result  the  appeals  must  be  allowed 
and  there  will  be  a  decree  in  each  case  for 
the  plaintiff  as  sued  for  with  costs  through- 
out 

v.  N.  vt  Appeals  allowed. 


[ft?  I.  C,  1986] 

ALLAHABAD  HIGH  CQJJRT. 

CIVIL  REVISION  No.  118  OF  1925. 

December  2,  1925. 

Present ; — Mr,  Justice  Mukerji. 

GOKUL  DAS  AND  OTHERS— PLAINTIFFS 

— APPLICANTS 

versus 
NATHU — DEFENDAN  r — RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908;,  s,  20  (G)-Suit 
to  recover  loan— Place  of  suing. 

In  the  absence  of  a  contract  to  the  contrary  it  is 
the  duty  of  the  borrower  to  seek  out  the  lender  for 
payment.  In  such  a  case  the  money  is  payable  at  the 
place  where  the  lender  resides  or  carries  on  business 
and  a  suit  for  the  recovery  of  the  money  may,  therefore, 
be  brought  at  such  place,  [p.  493 ,  col.  1.] 

Civil  revision  from  an  order  of  the  Judge 
Small  Cause  Court,  Moradabad,  dated  the 
8th  May  1925. 

Dr.  K.  N.  Katju,  for  the  Applicant. 

JUDGMENT.— These  two  applications 
in  revision  may  be  disposed  of  by  the  same 
judgment  as  the  facts  are  very  similar.  • 

The  applicants  who  are  plaintiffs  in  two 
different  suits  are  money-lenders  by  pro- 
fession and  their  practice  of  money-lending 
is  something  like  this.  They  send  munims 
or  trusted  servants  of  theirs  with  money  to 
villages  in  different  districts  with  instruc- 
tions to  lend  money  to  people  who  might 
stand  in  need  of  borrowing.  It  is  alleged 
that  the  defendants  in  these  two  cases 
borrowed  money  from  the  plaintiffs1  agents, 
in  one  case  in  the  District  of  Bareilly  and 
in  the  other  in  the  District  of  Shahjahanpur. 
The  plaintiffs  are  residents  of  the  District 
of  Moradabad.  The  debtors  did  not  pay 
and  thereupon  they  brought  the  two  suits 
for  recovery  of  the  money  at  Moradabad. 

The  defendants  did  not  appear.  The 
plaintiffs'  agents  who  had  lent  the  money 
in  each  case  went  into  the  witness-box  and 
swore  that  there  was  an  express  agreement 
by  the  debtors  that  they  would  re-pay  the 
loans  at  Moradabad.  The  agents  further 
produced  memoranda  made  in  the  account 
books  of  the  plaintiffs  to  the  effect  that  the 
borrowers  had  agreed  to  re-pay  the  money 
at  Moradabad. 

The  learned  Judge  of  tije  Small  Cause 
Court  disbelieved  the  evidence  given  to 
the  effect  that  there  was  an  express  agree- 
ment to  re-pay  the  money  at  Moradabad. 
The  evidence  was  trustworthy  and  should 
have  been  accepted.  He  was  of  opinion 
that  it  was  not  likely  to  have  bieeji  the  cape 
that  the  borrowers  would  come  to  Mor&d- 
abad  to  make  payment  Evidently  the 
learned  Judge  thought  tfcat  the  borrower* 


[92  I.  0.  I9Z6J 


KALA  GELL4  V.  8HIVJT. 


493 


had  agreed  to  pay  at  their  own  homes 
where  the  loans  were  advanced. 

Assuming  that  the  evidence  that  the  de- 
fendants had  agreed  to  pay  at  Moradabad 
was  untrustworthy,  we  have  to  rely  on  pre- 
sumptions of  law  alone.  For  there  is  no 
evidence  to  show  that  the  borrowers  and 
the  lenders  had  agreed  that  re-payment 
would  be  made  only  at  the  borrowers1  place. 
The  presumption  of  law  was  pointed  out  in 
the  cases  quoted  by  the  learned  Judge  of 
the  Small  Cause  Court  himself,  and  it  is 
this  that  in  the  absence  of  a  contract  to  the 
contrary  the  borrower  ought  to  seek  out  the 
lender  for  payment.  The  learned  Judge 
was,  therefore,  not  justified  in  ignoring  the 
rulings  of  this  Court.  They  were  really  not 
quite  distinguishable  specially  the  case 
reported  as  Bangali  Mai  v.  Firm  Ganga 
Ram-Ashrafi  Mai  (1). 

I  allow  the  applications  in  revision,  set 
aside  the  decrees  of  the  Court  below  and 
decree  the  plaintiffs'  claim  in  each  case 
against  the  defendants  with  costs  and 
interests  at  6  per  cent,  per  annum  from  the 
date  of  the  institution  of  the  suit  till  re- 
covery. 

2.  K.  Applications  allowed, 

(1)  71  Ind,  Gag.  431;  (1923)  A.  1.  R.  (A.)  465. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

ORIGINAL  CIVIL  SUIT  No,  126  OF  1925, 

July  13,  1925. 

Present:— Mr,  Tyabji,  A.  J.  0. 
ItALA  G'ELLAAND  OTHERS-— PLAINTIFFS 

versus 

8H1VJI  SON  OP  HAMIR  AND   OTHERS- 
DEFENDANTS. 

Civil  Procedure  Code  (Act  V  of  1908),  0.  IXt  r.  7— 
Proceedings,  ex  parte,  against  defendant— Application 
to  appear  in  suitt  whether  necessary — Procedure. 

Under  the  provisions  of  O.  IX,  0,  P.  C.,  if  a  defend* 
ant  does  not  appear  and  BO  long  as  he  is  absent,  the 
'Jsroceddings  must  necessarily  be  ez  parte  and  under 
r:  6  of  that  Order,  the  Court  is  empowered  to  proceed 
notwithstanding  that  the  defendant  may  be  absent. 
Should;  however,  the  defendant  appear  in  the  middle 
of  the  proceedings,  by  the  very  fact  that  he  is  present, 
the  K^'v.liiiK*  cease  thenceforth  to  be  ex  parte  and 
:r-a|,p!i™:m  by  him  is  necessary  for  being  per- 
minH  to  ni>ir>ar,  but  if  on  a  late  appearance  he 
wishes  to  be  placed  in  the  same  position  as  if  he  had 
appeared  at  the  proper  time,  he  should  under  r,  7, 
oj  the  Ofder  apply  for  permission  to  that  effect. 
Jf .  495,  coh  2;  p,  496,  col,  1,J 


Satyendra  Nath  Sen  v.  NarendrcC  Nath  Gupta,  81 
Ind.  Cas.  867;  39  C.  L.  J.  279;  (1924)  A.  I.  R.  (C  )  806, 
Mannu  v  Tulshi,  64  Ind.  Cas,  958;  20  A  L  J.  39; 
(1922,  A.  1  R.  (A  )  33  and  Bhagwat  Prasad  Tewan  v. 
Muhammad  Shibli,  66  Ind.  Cas  892;  20  A.  L.  J.  270; 
(1922)  A.  I.  R.  (A)  110,  relied  upon. 

Newton  v.  Kurneedhonet  9  B.  L.  R.  App  15, 
referred  to. 

Syud  Mahomed  Hossein  v.  Shaikh  Montogul  Haq, 
18  W.  R.  400,  distinguished. 

Mr.  Khanchand  Gopaldas,  for  the  Plaint- 
iff. 

Mr.  Dhanjishah  C.  Agha,  "for  Defendant 
No.  3. 

ORDER. — By  an  application  dated 
24th  June  1925  the  third  defendant  prays 
that  this  Court  should  "  vacate  the  ex  parte 
order  passed  against  him  and  allow  him 
to  appear  and  defend  the  suit  under  O. 
IX,  r.  7  and  s.  151  of  the  C.  P.  0." 

It  was  explained  to  me  that  the  order 
that  is  sought  to  be  set  aside  is  an  order 
of  llth  May  1925,  which  I  shall  set  out 
below,  and  which  was  passed  in  circum- 
stances of  which  the  record  contains  the 
following  note  made  by  the  second  Regis- 
trar on  the  6th  of  May  1925: 

"  Service  deemed  good  against  defend- 
ant No.  3.  Defendant  called  absent,  call 
up  for  ex  parte  orders  against  defendant  No. 
3  on  llth  May  1925."' 

The  matter  was  accordingly  brought  up 
in  Court  on  the  llth  of  May  1925  and 
what  occurred  is  recorded  in  the  following 
terms: 

"  Defendant  No.  3  called  absent  ex 
parte" 

I  was  inclined  to  consider  this  last  note 
as  a  mere  statement  of  fact,  that  the  de* 
fendant,  being  called,  did  not  appear,  and 
that,  therefore,  the  proceedings  at  that 
time  and  during  his  absence,  were  ex  parte: 
the  only  proceedings  that  I  understand 
took  place  on  the  llth  of  May  being  that 
the  defendant  was  called,  and  that  on  his 
not  appearing  this  uncontroverted  fact  was 
recorded  It  was  argued,  however,  that 
an  order  was  made  on  the  llth  of  May 
whereby  it  was  intended  to  inflict  a  sort  of 
diminutio  capitis  or  stigma  on  the  third 
defendant  who  was  thenceforth  to  be  con- 
sidered "  ex  parte"  (The  expression  is 
not  mine.  I  am  unable  to  understand  how 
a  party  can  be  ex  parte.  Proceedings  of 
course  may  be  ex  parte  if  only  one  side 
appears).  However,  it  be,  it  was  argued 
that,  owing  to  this  order,  the  third  defend- 
ant was  under  a  disability  from  appearing 
in  the  suit  instituted  against  him  and  that, 
if  he  did  appear,  the  Court  woxild  be  uu* 


494 


KALA  OBLLA  V.  SHIVJt 


able  to  consider  him  as  otherwise  than 
absent  unless  the  order  of  the  llth  of  May 
was  vacated  on  some  such  application  as 
the  present.  The  Court,  it  was  said,  was 
empowered  to  make  such  an  order  having 
such  effect  under  O.  IX,  r.  7;  and  that  the 
deleterious  effects  of  the  order  affected  not 
only  the  third  defendant  who  was  primarily 
subjected  to  it,  but  it  affected  the  Court 
who  could  not  hear  what  the  third  defend- 
ant may  have  to  say  unless  it  first  held 
that  he  showed  some  sufficient  cause  for 
not  having  appeared  on  the  previous  occa- 
sion, presumably  on  the  llth  of  May. 

The  relevant  provisions  of  the  law  are 
contained  in  the  C.  P.  C.,  0.  IX.  The 
order  begins  by  providing  under  r.  1  for 
the  attendance  of  the  parties  on  the  day 
fixed  in  the  summons  for  the  defendant 
to  appear  and  answer;  and  lays  down  (after 
containing  some  other  rules  not  now  rele- 
vant), that  "  where  the  plaintiff  appears 
and  the  defendant  does  not  appear  when 
the  case  is  called  on  for  hearing,  then,  if 
it  is  proved  that  the  summons  was  duly 
served,  the  Court  may  proceed  ex  parte" 
I  will  pause  here  to  point  out  that  it  is 
under  this  rule  that  the  Court  is  empower- 
ed in  the  first  instance  to  proceed  at  all  in 
the  absence  of  one  side,  and  on  the  appear- 
ance of  the  other  side  alone.  Though  the 
desirability,  I  might  say,  the  necessity,  of 
the  Court  having  such  powers  to  proceed 
ex  parte  is  obvious,  yet  unless  some  such 
power  were  expressly  given,  it  may  well  be 
argued  that  the  Court  would  not  have  in- 
herent powers  to  proceed  ex  parte,  and  that 
the  existence  of  r.  6  of  0.  IX  supports 
this  contention. 

The  argument,  however,  before  me  is  that 
the  Court  is  not  only  empowered  to  proceed 
when  the  defendant  is  actually  not  in  Court 
but  to  order  that  the  proceedings  shall 
thenceforth  be  ex  parte.  This  contention 
is  opposed  to  a  fundamental  principle  on 
which  our  Courts  purport  to  proceed  that 
no  man  is  to  be  judged  without  an  oppor- 
tunity being  given  to  him  of  being  heard. 
Thus  even  where  bodies  like  castes  and 
clubs  have  autonomous  constitutions  as 
regards  their  internal  affairs  and  the  Courts 
do  not  ordinarily  interfere  with  their  deci- 
sions in  such  matters  yet  if  it  is  found,  e.  </., 
that  a  member  of  a  caste  or  a  club  is  ex- 
pelled without  being  given  an  opportunity 
of  answering  the  allegations  against  him 
the  Courts  interfere  on  the  ground  that  the 
proceedings  are  opposed  to  natural  justice, 


[92  I.  0. 


But  notwithstanding  this  fundamental: 
principle  the  contention  was  supported  be- 
fore me  by  elaborate  and  I  may  say  at 
onco,  very  able  arguments  \vith  which  I 
shall  proceed  to  deal.  As  a  preliminary  I 
may  remark  that  (though  the  argument  was 
not  so  expressed  before  me),  I  have  a  shrewd 
suspicion  that  no  small  basis  of  the  argu- 
ment was  that  since  .the  Legislature  has 
used  the  foreign  expression  *  ex  parte ' 
instead  of  saying  "while  only  one  party  is 
present  "  or  "  notwithstanding  that  one  of 
the  parties  is  absent,"  therefore,  the  ex- 
pression must  have  peculiar,  perhaps  I 
may  say,  magical  effect. 

The  argument  proceeds  to  the  following 
effect,  that  under  r.  6  (1)  the  Court  may 
once  for  all  decide  that  the  hearing  will  in 
future  be  ex  parte  and  that  having  done  so, 
it  jnay  safely  adjourn  the  hearing  to  another, 
day.  Then  (it  is  argued)  the  hearing  con- 
tinues to  be  ex  parte,  notwithstanding  that 
the  defendant  may  thereafter  appear:  and 
in  support  of  this  proposition  r.  7  is 
cited.  That  rule  is  in  the  following 
terms  : — 

"  Where  the  Court  has  adjourned  the, 
hearing  of  the  suit  ex  partey  and  the  defend- 
ant, at  or  before  such  hearing,  appears 
and  assigns  good  cause  for  his  previous 
non-appearance,  he  may,  upon  such  terms 
as  the  Court  directs  as 'to  costs  or  other- 
wise, be  heard  in  answer  to  the  suit  as  if 
he  had  appeared  on  the  day  fixed  for  his 
appearance.11  -& 

Under  this  provision,  it  is  argued,  _th2 
the  defendant  having  failed  to  appear  at 
one  stage  of  the  hearing,  cannot  be  per- 
mitted to  appear,  or  be  heard,  at  another 
stage  without  assigning  good  cause  for  his 
previous  non-appearance.  But  this  argu- 
ment entirely  overlooks  the  ^ist  of  r,  7. 
which  is  indicated  by  the  last  line  of 
the  rule  :  the  object  of  this  rule  is  that  if 
sufficient  cause  is  shown  for  non-appear- 
ance the  defendant  may  upon  terms,  be 
placed  in  the  same  position,  retrospectively 
as  if  he  had  appeared  at  the  earlier  stage, 
This  interpretation  of  r.  7  may  not  strike  • 
one  immediately  on  a  reading  of  it  by  itself 
but  it  seems  to  me  that  no  doubt  can  be 
left  as  to  this  being  its  import  when  it  is 
read  in  connection  with  the  rest  of  the 
relevant  rule},  viz,  rr,  6,  7,  11  and  13, 
It  is  obvious  that  if  there  are  several  de- 
fendants and  one  or  more  of  whom  appear 
and  the  others  do  not  appear,  r.  11 
provides  for  the  case  :  and  then  tho  ~ 


I.  0.  1926] 


KAIA  GELLA.  V.  SH1VJ1. 


495 


Bhall  proceed  and  make  its  order  with  res- 
pect to  the  defendants  who  have  not  ap- 
peared only  at  the  time  of  [•:  :;••-,:  ^'.IIJT 
judgment.  The  magical  power  of  "  mailing 
the  defendant  ex  parte  "  (the  expression  I 
have  put  in  inverted  seems  actually  to  be 
current  in  some  quarters)  these  magical 
powers  are  evidently  denied  to  the  Court 
where  there  being  more  defendants  than 
one  any  one  of  them  appears.  Numbers 
apparently  prevail  even  against  magic. 

But  further  under  r.  13  where  the 
whole  suit  has  been  heard  ex  parte  the  de- 
fendant not  having  appeared  at  all  the  de- 
fendant may  still  appear  and  if  the  Court 
is  satisfied  that  he  was  prevented  by  any 
sufficient  cause  from  appearing  when  the 
suit  was  called  on  for  hearing,  the  Court 
is  directed  to  set  aside  the  decree  against 
him  upon  terms. 

So  that  the  argument  in  favour  of  the 
"  ex  parte  order  "  theory  must  in  the  first 
instance  admit  its  inefficasy  where  there  are 
several  defendants  and  any  one  appears 
and  what  is  more  important,  must  proceed 
to  this  length  that  under  it  a  defendant 
who  appears,  say  an  hour  after  the  so-called 
ex  parte  order  has  been  made,  must  be 
placed  in  a  worse  position  than  a  defendant 
who  does  not  appear  at  all  and  »vho  per- 
mits the  Court  to  proceed  with  the  whole 
suit  and  to  pass  an  ex  parte  decree.  ^  For 
in  the  former  case  the  defendant  can  in  no 
way  be  placed  in  regard  to  the  hour  during 
which  he  was  absent  in  such  a  position  as 
if  he  had  been  present  from  the  start, 
whereas  a  defendant  who  does  not  appear 
at  all  can  come  under  r.  13  and  have  the 
Whole  hearing  over  again. 

It  was  then  suggested  that  0.  VIII,  r.  10 
and  0.  XVI,  r.  20  give  power  to  the  Court 
straight  away  to  pronounce  judgment  again 
a  party  who  fails  to  present  a  written  state- 
ment, or  to  give  evidence  or  produce  a 
document  in  his  possession  ;  and  that, 
therefore,  a  defendant  who  had  failed  to 
appear  altogether  may  have  the  compara- 
tively minor  penalty  inflicted  on  him  of 
having  the  suit  heard  without  being  per- 
mitted to  appear.  But  the  rules  referred 
to,  have  application  only  in  the  cases  spe- 
cified, which,  it  is  obvious  are  cases  of  con- 
tumelious disregard  of  the  Court's  orders 
in  matters  within  the  defendant's  power. 
They  have  no  analogy  to  the  present  dis- 
cussion. 

These  rules  and  provisions  seem  so  simple 
that  I  feel  as  though  I  were  merely  labour- 


ing  the  obvious  ;  and  I  cannot  help  being 
surprised  at,  the  ability  and  persistence  (I 
mean  to  annex  no  offensive  implication) 
with  which  a  different  view  was  pressed 
before  me. 

Reliance  was  placed  on  the  rules  of  I  he 
Supreme  Court  of  England,  O.  XII,  r.  22;  0. 
XIII,  rr.  6  and  10;  O.  XXVII,  rr.  5,  13  to 
show  that  the  practice  in  England  also 
allowed  of  proceedings  being  ordered  to 
be  ex  parte.  I  am  not  sufficiently  familiar 
with  English  procedure  to  make  any  use  of 
this  argument  :  but  so  far  as  I  am  able  to 
judge  the  English  practice  is  so  different 
from  that  of  India  that  no  advantage  is 
gained  by  comparing  the  two  sets  of  rules. 

Several  authorities  were  cited  to  me  and 
I  shall  deal  with  them  shortly:  Syued 
Mahomed  Hoosein  v.  Shaikh  Montogul  Huq 
(1)  was  decided  under  the  Code  of  1859  in 
which  the  corresponding  provision  ended 
with  the  words  that  "  the  defendant  may 
be  heard  in  answer  to  the  suit 11  whereas 
the  addition  of  the  final  words  of  O.  IX,  r.  7 
viz.,  *'  as  if  he  had  appeared  on  the  day 
fixed  for  his  appearance,11  which  were  added 
in  the  Code  of  1882  and  retained  in  1908  is 
very  significant.  These  words  and  the  con- 
text make  the  meaning  perfectly  clear. 
Even  under  the  Code  of  1859  a  different 
view  was  taken  in  Newton  v.  Kurneedhove 
(2). 

On  the  other  hand  there  are  three  clear 
decisions  which  favour  the  view  that  I  have 
taken  Satyendia  Nath  Sen  v.  Narendra 
Nath  Gupta  (3)  a  judgment  of  Sir  Asutosh 
Mookerji's ;  Manu  v.  Tulshi  (4)  Bhagwat 
Prasad  Tewari  v.  Muhammad  Shibli  (5)  in 
both  these  decisions  Sir  Pramade  Charon 
Bannerji  participated.  The  decision  in 
Bhagwat  Pershad  v.  Mahomed  Shilbi  (5) 
seems  to  be  directly  in  point. 

As  I  have  explained  above,  the  provisions 
of  0.  IX  contain  none  of  the  absurdities 
that  the  plaintiff  desires  me  to  introduce  in 
them.  They  are  quite  plain  and  clear:  if 
the  defendant  does  not  appear,  and  so  long 
as  he  is  absent,  the  proceedings  must  neces- 
sarily be  ex  parte;  and  r.  6  empowers  the 
Court  to  proceed,  notwithstanding  that  he 
may  be  absent.  Should  the  defendant  ap- 

(1)18  W.  R.  400. 

(2)  9  B.  L.  R.  App.  15, 

(3)  81  lad,  Oas,  867;  39  0.  L,  J,    279;  (1924)  A.  I  R. 
(0,)  806. 

(4)  64ind.  Oas.  958;  20  A.  L.  J.    39;  (1922)  A.  I.  R, 
(A,)  33. 

(5)  66  Ind,  Gas*  892;  20  A.  L,  J,  270;    (1922)  A.  I.  R, 
(A,)  HO, 


498 


ABDUL  MAJID  V.  WAHIDULLAH. 


1 92  L  0.1 926 J 


pear  in  the  middle  of  the  proceedings  by 
the  vei*y  fact  that  he  is  present,  the  pro- 
ceedings cease  thenceforth,  to  be  ex  parte\ 
and  the  rules  do  not  provide  for  any  magic 
by  which  the  defendant  who  has  appeared 
should  be  made  to  disappear,  but  what  r.  7 
does  provide  is,  that  on  a  late  appearance 
he  may  on  terms  be  placed  in  the  same  posi- 
tion as  if  he  had  appeared  at  the  proper 
time,  e.  g.,  in  regard  to  right  to  cross-exa- 
mine a  witness  who  may  have  been  examin- 
ed in  his  absence.  Finally,  r.  13  provides 
for  the  case  where  the  defendant  has  failed 
to  appear  throughout  even  in  that  case  the 
defendant  may  be  placed  in  the  same  posi- 
tion as  if  he  had  appeared,  viz.,  the  decree 
itself  may  be  set  aside  and  the  whole  pro- 
ceeding commenced  de  novo. 

For  the  reasons,  that  1  have  given,  I  am 
of  opinion  that  there  is  no  order  against  the 
third  defendant  which  I  can  vacate.  The 
application  will,  therefore,  be  dismissed. 

The  plaintiff  asks  that  the  application 
should  be  dismissed  with  costs.  But  it  is 
evident  to  me  that  there  has  been  some  mis- 
understanding of  the  procedure,  for  which 
the  applicant  is  not  responsible.  It  was  the 
plaintiff  who  supported  the  procedure  which 
I  hold  to  be  misconceived.  There  will, 
therefore,  be  no  order  as  to  costs. 

p,  B,  A, 

Order  accordingly. 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  132  OF  192$. 

December  3,  1925. 

Present :— Mr.  Justice  Daniels. 

ABDUL  MAJID — DEFENDANT— APPLICANT 

versus 
WAHIDULLAH—PLAiNTiFF— RESPONDENT. 

Civil  Procedure  Code  (Act  V  o/  1908),  0  IX,  rr.  8t 
9 —Dismissal  for  default—Restoration,  application  for, 
refection  of — Appeal— Appellate  Court,  power  of,  to 
decree  suit  to  extent  of  admission — Decree  on  admission 
of  claim,  effect  of. 

On  an  appeal  from  an  order  refusing  to  restore 
a  suit  dismissed  in  default,  the  Appellate  Court 
cannot  make  an  order  which  the  original  Court  could 
not  legally  have  made.  If  the  Appellate  Court  agrees 
with  the  Trial  Court  it  must  dismiss  the  appeal.  If  it 
differs  from  the  Trial  Court  it  should  order  the  case  to 
be  restored  either  on  terms  or  unconditionally.  It  has 
no  jurisdiction  to  pass  a,  decree  in  favour  of  the 
plaintiff,  [p  496,  col.  2.] 

For  the  purpose  of  O.  IX,  r.  8,  C,  P.  C.,  it  is  the  net 
amount  for  which  the  defendant  admits  liability  after 
deducting  *li  payments  alleged  by  him  which  has  to 
be  taken  into  account,  [ibid.] 


Civil  revision  against  an  order  of  the 
Third  Additional  Subordinate  Judge,  Ali- 
garh,  dated  the  29th  August  1925. 

Mr.  M.  A.  Aziz,  for  the  Applicant. 

JUDGMENT.— The  plaintiil  filed  a 
suit  against  the  defendant  which  was  dis- 
missed under  0,  IX,  r.  8,  as  on  the  date  of 
hearing  the  defendant  was  present  but  the 
plaintiff  was  absent.  An  application  was 
made  under  O.  IX,  r.  9  to  restore  the  case 
but  was  rejected.  Against  that  order  the 
plaintiff  appealed  to  the  District  Judge. 
Both  the  original  and  the  Appellate  Court 
found  that  there  was  no  sufficient  cause  for 
the  plaintiff's  absence  on  the  date  of  hearing 
and  that  no  case  was  made  out  for  restora- 
tion. The  learned  Subordinate  Judge  who 
heard  the  appeal  found,  however,  that  the 
defendant  in  his  pleadings  had  admitted 
the  claim  to  the  extent  of  Rs.  288.  He, 
therefore,  on  the  appeal  before  him  passed 
a  decree  in  favour  of  the  plaintiff  to  the 
extent  of  Rs.  288. 

The  defendant  in  revision  urges  that  the 
Appellate  Court  had  no  power  to  pass  a 
decree  in  favour  of  the  plaintiff  on  an 
appeal  from  an  order  refusing  to  restore 
the  suit.  This  plea  is  correct  and  must 
prevail.  The  powers  of  a  Court  to  which 
an  application  for  restoration  is  made  are 
stated  in  O.  IX,  r.  9.  The  Court  may  either 
dismiss  the  application  if  it  finds  that  there 
was  no  sufficient  cause  for  the  plaintiff's 
non-appearance,  or  it  may  allow  the  applica- 
tion and  restore  the  suit  on  such  terms  as  it 
sees  fit.  On  an  appeal  from  an  order 
refusing  to  restore  the  suit  the  Appellate 
Court  cannot  make  an  order  which  the 
original  Court  could  not  legally  have  made, 
If  the  Appellate  Court  agrees  with  the  Trial 
Court  it  will  dismiss  the  appeal.  If  it 
differs  from  the  Trial  Court  it  will  order  the 
case  to  be  restored  either  on  terms  or  un* 
conditionally.  The  plaintiff's  remedy  if  he 
considered  that  his  suit  had  been  wrongly 
dismissed  to  the  extent  of  Rs.  288  was  to 
file  an  appeal  against  the  decree  dismissing 
his  suit  and  such  an  appeal  is  permitted  by 
e.  96  of  the  Code.  As  a  matter  of  fact  the 
Court  below  is  wrong  even  in  saying  that 
the  defendant  admitted  the  claim  to  the 
extent  of  Rs.  288.  The  defendant  pleaded 
payment  to  the  extent  of  Rs.  110  and  ad- 
mitted a  balance  of  Rs.  178  only.  For  the 
purpose  of  O,  IX,  r.  8,  it  is  the  net  amount 
for  which  the  defendant  admits  liability 
after  deducting  all  payments  alleged  by 
him  which  has  to  be  taken  into  account 


I.   0.  1926J  OFFICIAL  RECEIVER   t>.  NAOARATNi  MUDALUR. 


497 


The  Court  below  has  acted  without  jurisdic- 
tion in  «lc  lro--::i^r  the  plaintiff's  claim  to  the 
extent  of  K*  •>*.  I  set  aside  its  order  and 
restore  the  order  of  the  Munsif.  The  appli- 
cant will  get  his  costs  both  in  this  Court 
and  in  the  Court  below. 
z.  K.  Order  set  aside. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No.  46  OF  1925. 

April  20,  1925. 
Present: — Mr.  Justice  Venkatasubba  Rao 

and  Mr.  Justice  Madhavan  Nair. 
THE  OFFICIAL  RECEIVER,  TANJORE 
—PETITIONER — APPELLANT 

versus 

R.  M.  NAGARATNAMUDALIAR— 
RESPONDENT, 

Civil  Procedure  Code  (ActVof  190S),  0.  XX,  r  11, 
d.  (2),  0.  XXXIV,  r.  ?£—  Security  bond  by  judgment- 
debtor- -Security ,  enforceability  of,  in  execution — 
Hindu  father,  decree  against — Sons  of  judgment-debtor 
also  joining  as  parties  to  security  bond,  effect  of — Pro- 
vincial Insolvency  Act  (V  of  1920),  s  152 — Money- 
decree-holder  obtaining  security  in  execution  proceed- 
ings, whether  secured  creditor 

Immoyeable  properties  given  by  a  judgment-debtor 
as  security  pursuant  to  an  order  made  under  O  XX,  r. 
11,  cl.  2,  (J.  P.  O  ,  can  be  realised  by  the  decree-holder 
in  execution,  unless  there  is  anything  in  the  security 
bond  or  the  order  of  Court  which  precludes  the 
security  from  being  enforced  in  execution,  [p,  499, 
col.  2;  p  500,  col.  1.] 

Where  the  parties  intended  that  the  properties 
covered  by  the  security  bond  should  be  realised 
in  execution,  the  decree-holder  is  not  bound  to 
resort  to  a  separate  suit  for  the  purpose  [ibid.\ 

The  provisions  of  0.  XXXIV,  r  14,  C.  P.  C,,  are 
inapplicable  to  such  a  case  and  do  not  operate  as  a 
bar  to  the  enforcement  of  the  security  bond  ia  execu- 
tion, [p.  498,  col.  1  ] 

Subramania  Chettiar  v.  Raja  of  Ramnad,  43  Ind. 
Gas.  187;  41  M  327;  6  L.  W.  762;  (1917)  M.  W.  N  872;  31 
M.  L.  J.  84  and  Jyoti  Prafcash  Nandi  v.  Mukti  Prakash 
Nandi,  81  Ind.  Gas.  734;  51  C.  150;  (1924)  A.  I.  K.  (0.) 
485,  relied  on. 

It  would  make  no  difference  in  the  above  case  if  a 
Hindu  father  alone  is  the  judgment-debtor  but  the 
eeourity  bond  is  executed  by  the  father  and  his  un- 
divided sons,  as  the  latter  could  question  the  debt  only 
if  it  were  tainted  with  illegality  or  immorality. 
[p.  501,  coll.] 

The  words  "claim  arising  under  the  mortgage"  have 
been  substituted  in  O.  XXXIV,  r.  14,  O.  P.  C.,  for  the 
words  "any  elaim  whether  arising  under  the  mortgage 
or  not"  in  the  repealed  s.  99  of  the  Transfer  of  Pro- 
perty Act.  The  effect  of  the  alteration  is  to  confine 
the  prohibition  against  bringing  the  mortgaged  pro- 
perty for  sale,  except  by  bringing  a  suit,  to  cases 
where  a  mortgagee  has  obtained  a  personal  decree 
against  the  mortgagor  on  the  mortgage-debt.  The 
or  charge  mentioned  iu  0,  XX2UV,  r,  14 

M 


must  bs  a  mortgage  or  charge  existing  prior  to  the 
decree  and  not  created  by  the  decree  or  one  created 
by  the  act  of  parties  subsequent  to  the<lecree  [p  499, 
col.  l.J 

Souubagia  Ammal  v.  Mamka  Mudali,  12  lud  Cas. 
975,  33  M.  GUI;  22  M.  L.  T.  386;  (1917)  M.  W.  N.  782,  6 
L.  W.  701,  and  Indramani  Dasi  v.  tiurendra,  64  Ind. 
Cas.  852;  35  C.  L.  J.  61,  (1922;  A.  I.  R.  (C  )  35,  relied 
on. 

The  exemption  from  the  operation  of  s  52,  Provincial 
Insolvency  Act,  given  to  secured  creditors  must  be 
extended  to  money -deciee-holders  who  have  obtained 
securities  in  the*  course  of  execution  who  must  also 
be  treated  as  secured  creditors  for  purposes  of  the 
section,  [p.  501,  col.  1.] 

Appeal  against  an  order  <5f  the  District 
Court,  East  Tan j  ore  at  Negapatam,  dated 
the  30th  January  1925,  iu  I.  A.  No.  50  of 
1925,  in  I.  P.  No.  20  of  1924. 

Messrs.  T.  M.  Krishnaswami  Iyer  and  S. 
Panchapayesa  Sastry,  for  the  Appellant. 

Messrs.  S.  Varadachariar  and  A.  Ganesa 
Iyer,  for  the  Respondent. 

JUDGMENT, 

Venkatasubba  Rao*— I  shall  briefly 
state  the  facts  that  have  given  rise  to  this 
appeal.  Execution  was  taken  out  of  a 
money-decree  and  the  judgment-debtor 
agreed  to  pay  the  decree-holder  interest  at 
an  enhanced  rate  and  executed  in  his  favour 
a  security  bond  in  respect  of  certain  immove* 
able  properties.  As  a  result  of  this,  an. 
order  was  made  postponing  execution  under 
O.  XX,  r.  11,  O.  P.  C.  The  judgment-debtor 
was  subsequently  adjudicated  an  insolvent 
and  on  the  decree-holder  seeking  to  attach 
the  properties  secured  and  bring  them  to 
sale,  the  Official  Receiver  applied  to  the 
Insolvency  Court  for  an  order  to  stay  the 
sale  directed  by  the  Executing  Court.  The 
applied! ion  was  refused  by  the  District 
Judge  of  East  Ten  j  ore  and  this  appeal  has 
been  filed  questioning  the  correctness  of  hia 
order. 

Mr.  Varadachariar,  the  learned  Vakil  for 
the  decree- holder,  objected  that  apart  from 
the  merits  of  the  case  the  Insolvency  Court 
would  have  no  power  to  make  an  order 
binding  upon  the  Court  executing  the 
decree.  As  on  healing  full  arguments  on 
the  other  contentions  raised  we  intimated 
that  we  were  against  the  appellant,  Mr. 
Varadachariar  did  not  have  to  argue  the 
point  relating  to  the  power  of  the  Insolvency 
Court.  I  shall,  therefore,  proceed  to  deal 
with  the  case  as  if  the  objection  to  the 
property  being  sold  had  been  raised  before 
the  Executing  Court  itself. 

Mr.  T.  M.  Krishnaswami  Iyer  the  learned 
Vakil  for  the  appellant  advanced 
contentions;— 


OFFICIAL  BECEIVER  U,  NAGARAf NA  Mf  DALIAB. 


[S2  L  0. 


(1)  A  security  of   this  kind  cannot   be 
enforced  in  execution,  as  to  do  so  will  con- 
travene the^   terms  of  O.   XXXIV,  r.   14, 
0.  P.  0. 

(2)  That  under  s  52  of  the  Provincial  In- 
solvency   Act  (V  of  1920)   the    Executing 
Court  on  being  informed  that  the  judgment- 
debtor  has  become  an  insolvent  is  bound  to 
stay  the  sale  and  direct  the  property  to  be 
handed  to  the  Receiver  in  Insolvency. 

I  shall  deal  with  these  contentions  in  the 
order  in  which  I  have  stated  them. 

The  first  contention  is  based  on  the  terms 
of  0.  XXXIV  r.  14,  C,  P.  0.  It  runs, 
thus  :— 

"Where  a  mortgagee  has  obtained  a 
decree  for  the  payment  of  money  in  satisfac- 
tion of  a  claim  arising  under  the  mortgage, 
he  shall  not  be  entitled  to  bring  the  mort- 
gaged property  to  sale  otherwise  than  by 
instituting  a  suit  for  sale  in  enforcement  of 

the  mortgage ",  Every 

essential  is  wanting  in  this  case.  The 
section  contemplates  a  mortgage  and  a 
decree.  Under  the  section  there  must  be 
first  a  mortgage  and  then  a  decree  in 
respect  of  a  claim  arising  under  the  mort- 
gage. The  position  here  is  reversed.  Long 
previous  to  the  mortgage  there  was  a  decree 
and  it  was  impossible  that  the  decree  could 
be  in  respect  of  a  claim  arising  under  a 
mortgage  which  was  non-existent.  The  sec- 
tion, therefore,  does  not  in  terms  apply. 

Where  the  charge  is  created  by  the  decree 
itself,  O.  XXXIV,  r.  14  can  have  no  applica- 
tion. See  Sawbajia  Ammal  v.  Manika 
Mudali  (1)  and  Indramani  Dasi  v.  Surendra 
Nath  Mondal  (2). 

Where  the  security  comes  into  existence 
subsequent  to  the  decree,  the  principle 
applies  a  fortiori  and  O.  XXXIV,  r.  14,  can- 
not be  a  bar. 

In  this  connection  I  may  notice  two  sets 
of  cases  to  which  reference  has  heen  made 
at  the  bar: — 

First,  cases  under  s.  145,  where  in  execu- 
tion, security  was  sought  to  be  enforced 
against  a  surety. 

Second,  cases  under  certain  other  sections 
of  the  Code  where  the  judgment  debtor  was 
the  party  against  whom  security  was 
attempted  to  be  enforced, 

(1)  42  Ind.  Gas.  975;  33  M.  601;  22  M.  L.  T,  386;  (1917) 
M,W.  N.782;6L.  W.  701. 

(2)  64  Ind,  Cas.  852;  35  C.  L.  J,  61;  (1922)  A.  I.  R. 
(0.)  35. 

(3)  33  Ind,  Oas,  982;   38    A*   327;,   14    A,    L.  J, 


Let  me  first  deal  with  cases  under  s.  145. 
In  Mukta  Prasad  [v.  Mahadeo  Prasad  (3) 
the  property  of  the  surety  was  allowed  to  be 
sold  in  execution.    The  ground  of  the  de- 
cision was  that  he  rendered   himself  per- 
sonally liable    and  his  personal    liability 
could  be   enforced  by  the    very  property 
given  as  security  being  attached  and  sold. 
In  Amir  v.  Mahadeo  Prasad  (4)  it  was  held 
that  although  the  surety  had  made  himself 
personally  liable,    the  charge  against  the 
property  could  be  enforced  only  by  means 
of  a  regular  suit,    I  may  point  out  that 
though  Mukta  Prasad  v.  Mahadeo  Prasad 
(3)    was  in    this    case    distinguished,  the 
ground  of  the  distinction  is  wrong  as  what 
was  attempted  to  be  sold  was  not  merely 
the  judgment-debtors  equity  of  redemption* 
la  Chandrabati  v.  Babu  Ram  (5)  the  bond 
created  a  personal  liability  but  it  was  held 
that    the  property  given  as  security  could 
not  be  sold  in  execution  although  the  per- 
sonal liability  of  the  surety  could  be  other- 
wise enforced.    In  Brojendra  Lala    Dass  v. 
Lakshmi  Narain  Khanna    (6)   s.   145  was 
held  inapplicable  as    the  surety  had  not 
undertaken  any  personal  liability  and  the 
propeties  were  not  allowed  to  be  sold  in 
execution.    In  Raj  Raghubar  Singh  v.  Jai 
Indra  Bahadur  Singh  (7)  their  Lordships 
of  the  Judicial  Committee  observe  that  if 
the  surety  has  not  rendered  himself  per- 
sonally liable,  s,  145  has  no  application  ;  but 
when  there  is  a  personal  liability  under- 
taken the  question  is  left  open. 

An  examination  of  most  of  these  &ases 
will  show  that  what  is  mainly  said  to 
be  in  the  way  of  the  security  being  en* 
forced,  is  the  repealed  s.  99  of  the  Trans* 
fer  of  Property  Act  or  the  provision  now 
corresponding  to  it,  namely,  0.  XXXIV, 
r.  14,  0.  P,  0. 

These  cases,  in  my  opinion,  may  be 
easily  disposed  of  as  they  deal  with  a 
specific  section  of  the  Code  which  gives 
express  rights  against  a  surety  and  what 
these  rights  are,  must  be  determined  with 
reference  to  that  section  alone.  We  are 
not  now  in  this  appeal  concerned  with 
s.  145. 

I  shall  now  deal  with  cases  where  a 
security  bond  was  executed  by  a  party  to 

(4)  38  Ind.  Cas.  33;  39  A.  225;  15  A.  L.  J.  76. 

(5)  27  Ind.  Cas.  365;  19  C.  W.  N.  178. 

(6)  29  Ind.  Cas.  149;  19  C.  W.  N.  96L 

(7)  55  Ind.  Cas.  530;  42  A.  158;  22  0.  C.  212;  6  0.  L, 
J.  682;  38  M,  L.  J.  302;  18  A.  L  J,  263;  22  Bom.  U 
R,  521;  46  I  A,  228;  13  L,  W,  82  (P,  0.) 


[92  L  0, 1926J 

tho  suit  itself.  In  Shyam  Sunder  Lai  v. 
Bajpai  Jainarayan  (8)  an  application  was 
made  by  the  defendant  judgment-debtor 
for  stay  of  execution  and  it  was  granted 
upon  his  giving  security  in  the  sum  of 
Rs.  10,000.  By  the  security  bond  which 
was  executed,  certain  properties  were  mort- 
gaged as  security  for  the  due  performance 
of  the  decree.  The  decree-holder  applied  for 
realisation  of  the  decree  amount  by  sale  of 
the  properties  comprised  in  the  bond.  Sec- 
tion 99  of  the  Transfer  of  Property  Act  was 
relied  on  by  the  judgment-deb  tor  who  oppos- 
ed the  application.  It  was  held  that  that  sec- 
tion was  not  a  bar  as  the  bond  was  not 
addressed  to  the  decree-holder  but  was  in 
favour  of  the  Court  and  that,  therefore, 
there  was  no  mortgage  created. 

In  Tokhan  Singh  v.  Girwar  Singh  (9) 
the  judgment-debtors  executed  a  bond  to 
the  Registrar  of  the  Court  as  security  for 
the  costs  of  the  respondents  in  appeal  to 
the  Privy  Council.  They  sought  to  enforce 
the  security  by  selling  in  execution  of  the 
decree  for  costs  the  property  comprised  in 
the  bond.  It  was  held  that  a  valid  mort- 
gage was  created  and  that  under  s.  99  of 
the  Transfer  of  Property  Act,  the  security 
could  not  be  enforced  without  the  institu- 
tion of  a  regular  suit. 

Although  Shyam  Sundar  Lai  v.  Bajpai 
Jainarayan  (8)  was  distinguished  in  Tokhan 
Singh  v.  Girwar  Singh  (9)  on  the  ground 
that  in  the  former  case  the  bond  was  given 
to  the  Court  and  in  the  latter  it  was 
executed  to  the  Registrar,  these  decisions 
are  in  truth  irreconcilable. 

Section  99  of  the  Transfer  of  Property 
Act  has  been  replaced  by  0.  XXXIV,  r.  14 
of  the  C.  P.  C.  The  repealed  section  ran 
thus  :— 

"  Where  a  mortgagee  in  execution  of  a 
decree  for  the  satisfaction  of  any  claim, 
whether  arising  under  the  mortgage  or  not, 
attaches  the  mortgaged  property,  he  shall 
not  be  .entitled  to  bring  such  property  to 
sale  otherwise  than  by  instituting  a 

suit  under  s.  67 " 

Order  XXXIV,  r.  14,  has  been  reproduced 
in  an  earlier  part  of  this  judgment. 

The  effect  of  the  alteration  13  to  confine 
the  operation  of  the  rule  to  cases  where  a 
mortgagee  has  obtained  a  personal  decree 
against  the  mortgagor  on  the  mortgage 
debt.  In  such  a  case,  the  mortgagee  can 
have  the  property  sold  only  by  instituting 

(8)  30  C,  1060;  7  0.  W.  N  914. 

'I  0, 494;  9  0.  W.  N,  372;  1  0.  L,  J,  118, 


OFFICIAL  RECEIVER  V.  NAGARATNA  MtJDALIAK. 


499 


a  regular  suit  for  sale.    The  Madras  High 
Court  in  Subramania  Chettiar  v.  Raja  of 
Ramnad  (10),  recognising  the  effect  of  this 
alteration  has  held  that  the  provision  now 
in  force  does  not  stand  in  the  way  of  the 
property  given  as  security  being  sold  in 
execution.    In  that  case  immoveable  pro- 
perty was  given  by  a  judgment-debtor  as 
security    for  the  due    performance   of    a 
decree  pursuant  to  an  order  made    under 
O.   XLI,  r.  5  (3),  C.  P.  C,    and  it  was  held 
that  the  property  could  be* sold   in  execu- 
tion.   In    that   case    immoveable  property 
was  given  by  a  judgment-debtor  as  security 
for  due  performance  of   a  decree,  pursuant 
to  an  order  made  under  O.   XLI,  r.  5  (3) 
C.  P.  C.,  and  it  was  held  that  the  property 
could  be  sold    in    execution    without   re- 
course being  had  to  an  independent  suit.    I 
may  mention  that  in  Baij  Nath  Goenka  v. 
Sia  Ram  Das  (11)   the  Calcutta  High  Court 
held  that  s.    99  did  not  operate  as    a  bar. 
This  was   decided  later  than  Shyam  Sundar 
Lai  v.  Bajpai  Jainarayan  (8)  and  Tokhan 
Singh  v.   Girwar    Singh  (9)  and   previous 
to  Subramania  Chettiar  v.  Raja  of  Ramnad 
(10).    The  referring  Judges  advert  to    the 
conflict  of  authority  and  indicate  a  clear 
preference  in  favour  of  the  view  that  the 
property  can  be  sold  in  execution. 

In  the  most  recent  case,  Jyoti  Prakash 
Nandi  v. Uukti  Prakash  Nandi(l2)t  the  view 
of  the  Madras  High  Court  has  been  followed* 
The  weight  of  authority,  therefore,  sup- 
ports the  view  that  security  given  by  a 
judgment-debtor  can  be  enforced  and  the 
property  covered  by  the  bond  be  sold  in 
execution. 

In  the  cases  mentioned  above,  security 
was  not  taken  under  0.  XX,  r.  li  and  on  this 
ground  it  may  be  contended  that  there  is  no 
direct  authority  on  the  question  raised.  But 
-  in  principle  is  there  any  difference  ?  Order 
XX,  r.  11,  contemplates  a  complete  or  qualifU 
ed  stay  of  execution  and  some  of  the  sec- 
tions, 1 1-  any  rate,  considered  in  those  cases 
provide  similarly  for  stay  of  execution.  If 
the  view  of  the  law  taken  in  those  cases  is 
correct,  the  fact  that  in  the  present  case, 
the  security  bond  was  taken  under 
O.  XXI,  r.  11,  makes  no  difference  and  we 
must  hold  that  the  decree-holJer  in  execu- 
tion of  his  decree  and  without  being 

(10)43Ind.  Caa.  187;  41  M>  327;  6  L.  W.  7(1  (191?) 
M.  W.  N.  872;  34  M.  L.  J.  84, 

ill)  18  Ind.  Gas.  900;  17  C.  L.  J,  267. 

(12)  81  Ind,  Cas,  784;  51  0, 150;  (1921)  A  f,  R,  (Q\ 
485.  * 


500 


OFFICIAL  RECEIVER  V.   NAGABATNA  MUDALIAR, 


[92  I.  0.  1926] 


compelled  to  file  a  regular  suit  can  bring 
the  property  to  sale. 

In^  regard  to  cases  that  arise  under 
0.  XX,  r,  11,  the  principle  may  be  thus 
stated.  Unless  it  is  shown  that  the  security 
was  taken  in  satisfaction  of  the  decree,  it 
was  presumably  intended  that  the  order 
made  should  be  capable  of  execution.  If 
on  a  construction  of  the  order,  the  Court 
comes  to  the  conclusion  that  the  decree  is 
not  satisfied  and  there  is  no  bar  created 
which  precludes  the  decree  from  being 
executed,  it  is  the  duty  of  the  Court  to 
allow  execution  by  enforcing  sale.  Whe- 
ther it  be  regarded  that  what  is  sought 
to  be  executed  is  the  original  decree  itself 
or  an  executable  order  made  under  the 
special  provision  of  the  law  contained  in 
0.  XX,  r.  11,  it  makes  very  little  difference. 

In  Subramania  Chettior  v.  Raja  o/  Ram- 
nad  (10)  the  learned  Judges  took  the  view 
that  it  is  not  only  the  right  of  the  decree- 
holder  to  bring  the  property  to  sale  in 
execution  but  that  under  s.  47,  C.  P.  C,,  the 
remedy  by  way  of  regular  suit  is  not  open 
bo  him.  It  is  not  necessary  to  rest  my 
judgment  on  this  ground. 

General  considerations  were  strongly 
pressed  before  us  both  in  favour  of  and 
Ebgainst  the  acceptance  of  this  view. 
^  In  Tokan  Singh  v.  Girwar  Singh  (9)  at  page 
50  j*  and  in  Amir  v.  Mahadeo  Prasad  (4)  page 
228|  the  view  that  it  is  impolitic  to  sell  the 
property  in  execution  is  set  forth  In  the  first 
case  Mookerjee,  J.,  says  thus  :— "It  is  quite 
conceivable  for  instance  that  after  a  pro- 
perty has  been  given  in  security  by  the  judg- 
ment-debtor an  interest  may  be  acquired 
in  it  by  other  persons ;  if  it  is  sold  in 
execution  of  the  decree... it  would  in  such 
a  case  be  necessarily  sold  behind  the  back 
of  persons  interested  who  would  have  no 
opportunity  of  redemption  and  their  inter- 
eat  would  not  be  prejudiced  by  the  sale 
and  they  would  be  entitled  to  enforce  their 
claim  by  independent  suits". 

Weighty  reasons  are  given  for  the  view 
I  am  disposed  to  take  by  the  referring 
Judges  inBaijNath  Goenka  v,  SiaRamDas 
(11).  The  provision  is  embodied  in  the  law 
for  the  protection  of  the  decree-holder  and 
it  must  be  interpreted  to  operate  to  bis 
advantage.  By  refusing  to  sell  the  pro- 
perty in  execution ,  far  from  securing  to 
the  decree-holder  the  due  execution  of  his 
decree  the  Court  renders  the  decree  itself 
incapable  of  execution  against  the  property 

""^Pae  Q*  23  C.— [Ed3  E 


covered  by  the  security.  This  is  clearly 
unjust  This  view  is  shared  by  the 
learned  Judges  who  decided  Subramania 
Ckettiar  v.  Raja  of  Ramnad  (10),  for  to 
quote  their  very  words  "It  would  be  a  most 
mischievous  state  of  law  if  such  a  thing  (a 
mortgage  suit)  were  necessary  and  it  would 
fetter  the  discretion  of  the  Court  in  accepting 

immoveable  property  as  security" 

In  my  opinion  if  it  is  permissible  to 

advert  to  such  general  considerations  the 
balances  of  convenience  is  clearly  in  favour 
of  the  view  taken  by  the  Calcutta  Judges 
and  the  learned  Judges  of  this  Court. 

Mr.  Varadachariar  suggested  that  if  there 
are  subsequent  encumbrancers  their  right 
will  be  to  proceed  against  the  surplus 
money,  if  any.  On  the  other  hand,  Mr.  T.  M. 
Krishnaswami  Iyer  urged  that  such  encum- 
brancers will  be  entitled  to  redeem  the 
purchaser  at  the  sale  I  do  not  propose  to 
express  any  opinion  on  this  point  as  this 
has  only  a  remote  bearing  on  the  question 
to  be  decided,  in  the  appeal. 

Then  arises  the  question,  is  there  any 
thing  in  the  security  bond  or  the  order  of 
the  Court  which  precludes  the  security  from 
being  enforced  in  execution?  In  my  opinion 
there  is  110  obstacle  created.  On  the  con* 
trary,  the  effect  of  the  security  bond  seems 
to  recognise  this  right  of  the  decree -holdei4, 
The  debtor  renders  himself  personally 
liable,  creates  the  charge  aud  covenants 
that  the  security  bond  shall  be  in  force  till 
the  decree  is  entirely  satisfied.  The  order 
of  the  Court  recites  tke  fact  that  the  security 
bond  has  been  executed.  On  a  construction  of 
the  bond  and  the  order,  I  am  of  the  opinion 
that  the  parties  intended  that  the  security 
should  be  capable  of  being  realised  in  exe? 
cution. 

-  I  have  now  disposed  of  the  first  contention 
raised  by  Mr.  Krishnaswami  Iyer.  I  shall 
proceed  to  deal  with  the  second  contention, 
namely,  that  based  upon  s.  52  of  the  In- 
solvency Act.  Under  that  section/ where 
after  execution  has  issued,  the  Executing 
Court  receives  notice  of  the  insolvency  of 
the  judgment-debtor,  it  is  "bound  to  direct 
the  property  if  in  its  possession  to  be  deli- 
vered to  the  Receiver  in  insolvency.  It  is 
conceded  by  Mr.  T.  M.  Krishnaswami  Iyer 
that  this  does  not  apply  to  r^ortfirnflr-'-'lo^rro 
holders  and  this  is  obvious  enough.  But  he 
says  that  the  decree  in  question  being  a 
money-decree,  the  fact  that  the  decree-hold- 
er is  a  secured  creditor  makes  no  difference 
aud  that  6,  52  applies,  I  am  unable  to 


[92  1.  0.  1926J  OFFICIAL  RECEIVER  V.  NAGARATNA  UUDALUR, 

Section  52  is  somewhat  generally  worded,     given_as  security  to  you 
but    it  must    receive  construction  not  re- 
pugnant to  the  general    scheme  of  the  Act, 
namely,  to  save  the  rights  of  secured  cre- 


501 

for  the  amount  of 

Rs.  12,620-4-0  being  the  amount  up  to  date 
under  the  said  decree  our  properties  as 
mentioned  in  the  schedule 


ditors.    It  is  sufficient  to  refer  in  this  con-     We  shall  pay  you  without  trouble 


nection  to  s.  28  (6),  s.  47  and  s.  51  (2).  There 
is  nothing  in  the  wording  of  these  sections 
to  show  that  money  decree-holders  who 
have  obtained  security  are  excluded.  Under 
s.  2  creditor  is  defined  as  including  a  decree- 
holder,  debt  as  including  a  judgment  debt 
and  secured  creditor  is  described  as  a  person 
holding  a  mortgage  charge  or  lien  on  the 
property  of  the  debtor  as  security  for  a  debt 
due  from  him.  I  am  clearly  of  the  opinion 
that  s.  52  does  not  apply. 

I  have  so  far  dealt  with  the  two  main  con- 
tentions raised  on  behalf  of  the  appellant. 
There  is  a  subsidiary  point  which  has  been 
taken  on  his  behalf  and  I  shall  now  proceed 
to  deal  with  it.  It  is  said  that  the  decree 
was  passed  against  the  father  only  but  that 
the  bond  was  executed  by  the  father  and 
the  sons  and  that,  therefore,  the  property 
cannot  be  sold  in  execution.  There  might 
be  some  force  in  the  argument  if  the  bond 
had  been  executed  not  by  the  sons  of  the 
judgment-debtor  but  by  others.  But  in  the 
present  case  the  decree-holder's  right  is  not 
enlarged  nor  is  the  liability  of  the  execut- 
ants affected  by  reason  of  the  existence  of 
the  security  bond.  It  was  executed  by  the 
father  as  the  guardian  of  his  minor  sons 
and  whether  they  were  parties  to  it  or  not, 
their  right  would  still  be  the  same,  namely, 
to  question  the  debt  if  it  is  tainted  with 
illegality  or  immorality.  The  circumstance 
that  sons  are  also  parties  to  the  bond,  there- 
fore, makes  no  difference. 

The  order  appealed  against  must  be  up- 
and  the  appeal  fails  and  is  dismissed 
costs. 

Madhavan  Nair,  J*— The  facts  of  the 
case  are  fully  set  out  in  my  learned  brother's 
judgment.  The  first  question  arising  for 
pur  decision  is  whether  the  immoveable 
properties  given  by  the  judgment-debtor 
as  security  pursuant  to  an  order  made  under 
0.  XX,  r.  11,  cl.  2,  0.  P.  0,,  can  be  realised 
by  the  decree-holder  in  execution  or  can 
only  be  realised  in  a  separate  suit. 

The  material  portion  of  the  security  bond 
runs  as  folio  we:—  " Where- 
as on  your  petition  attchment  has  been 
ordered  of  our  lands  in  Tenkarai  Isranu  for 
the  said  decree  amount,  whereas  you  have 
Consented  to  our  request  not  to  proceed  with 
the  attachment  and  gale,  we  have  hereby 


or  compulsion  the  above  said  decree  amount, 
etc.,  according  to  the  terms  of  the  kararnama 
petition  (viz.,  petition  under  O.  XX,  r.  11,  of 

the  0.  P.O.)   If  we  do 

not  pay  you   accordingly,  you  shall  execute 
the  said  decree  according  to  the    terms  of 
the  kararnama  petition,  and  for  the  balance, 
if  any,  after  what  is  so  realised    by  you,  we 
undertake  to  pay  you  up   to  the  limit  of 
Rs.  12,620-4  0  on  the  security  of  thesaidpro- 
perties  and  on  our  personal  responsibility11. 
The  circumstances  relating  to  the  execution 
of  the  security  bond  clearly  show  that  the 
parties  to   the  security  bond  intended  that 
if  the  attachment  and  sale  of  the  properties 
became  necessary  it  should  be  done  in  exe- 
cution.   The  security  bond   was    executed 
after  attachment  was  ordered;  the  judgment- 
debtor  made  himself  personally  liable  ;  and 
the  bond  is  to  remain  in  force  till  the  decree 
is  fully  satisfied.    The  security  is  intended 
to  be  operative  if  the  judgment-debtor  does 
not  pay    the   decree  amount    and   interest. 
Provision  for    the  contingency  of  non-pay- 
ment being  made  by  the  security  bond,  the 
parties  could  not    have  meant  that    when 
such  contingency  arose  they  should  institute 
a    separate  suit  to  realise    the  properties 
covered  by  the  bond.  There  can  he  no  doubt 
that  the  parties  intended  that    the  proper- 
ties should  be  realised  if  necessary   in   exe- 
cution. But  whatever  be  the  intention  of  the 
parties,  if  there  is  any  legal  impediment  in 
the  way  of  realisation  by  execution,  then  the 
decree-holder  will  have  to  realise  his  secur- 
ity only  by    means  of  a  separate  suit.    It 
has  been  strenuously  argued  by  Mr.  T.  M. 
Krishnawami  Iyer  on  behalf  of  the  appel- 
lant that  O.    XXXlV,r.   14   of  the  C.  P.  C. 
operat  is  as  a  bar  to  the  enforcement  of  the 
security  in  execution. 

(1)  Rule  14  of  O.  XXXIV  provides  as  fol- 
lows:— 

"Where  a  mortgagee  has  obtained  a  dec- 
ree for  the  payment  of  money  in  satisfaction 
of  a  claim  arising  under  the  mortgage,  he 
shall  not  be  entitled  to  bring  the  mort- 
gaged property  to  sale  otherwise  than  by 
instituting  a  suit  for  sale  in  enforcement 
of  the  mortgage,  and  he  may  institute  such 
suit,  notwithstanding  anything  contained  in 
O.  II,  r.  2".  The  words  uclaim  arising  under 
the  mortgage"  have  been  substituted  in  this 


£02 


OFFICIAL  RECEIVER  V.  NAOARATNA  MUDALIAR, 


[92  I,  0.  1926] 


rule  for  the  words  "any  claim  whether  aris- 
ing under  the  mortgage  or  not11  in  the  re- 
¥3aled  s.  99  of  the  Transfer  of  Property  Act, 
he  effect  of  this  alteration  is  to  confine  the 
prohibition  against  bringing  the  ntort gag- 
ed property  for  sale  except  by  bringing  a 
suit,  to  cases  where  a  mortgagee  has  obtain- 
ed a  personal  decree  against  the  mortgagor 
on  the  mortgage  debt.  Obviously  the  rule 
in  terms  does  not  apply  to  the  present  case. 
"The  language  of  the  rule  makes  it  clear 
that  the  rule  does  not  apply  unless  the 
decree  obtained  by  the  holder  of  the  mort- 
gage or  charge  falls  within  the  description 
of  a  decree  for  payment  of  money  in  satisfac- 
tion of  a  claim  arising  under  the  mortgage 
or  charge.  The  mortgage  or  charge  men- 
tioned...must  obviously  be  a  mortgage  or 
charge  existing  prior  to  the  .decree  and  not 
one  created  by  the  decree11  [see  Indramani 
Dasi  v.  SurendraNath  Mondal  (2)]  or  one 
created  by  the  act  of  parties  subsequent 
to  the  decree. 

Having  regard  to  the  important  change 
introduced  by  0.  XXXIV,  r.  14,  it  has 
been  held  in  Sowbagia  Ammal  v.  Manika 
Mudali  (1),  Indramani  Dasi  v.  Surendra  (2) 
and  Brajasunder  Deb  v.  Sat  at  Kumari  (13) 
that  where  a  maintenance  decree  provided 
that  the  allowance  in  the  decree  should  be 
charged  on  certain  immoveable  properties, 
such  properties  could  be  sold  in  execution  of 
the  decree  and  that  there  was  no  necessity  to 
bring  a  separate  suit  for  sale.  The  decision 
in  Subramania  Chettiar  v.  Raja  of  Ramnad 
(10)  is  an  instance  of  a  case  where  the 
security  was  given  by  the  judgment-debtor 
after  a  decree.  In  that  case  immoveable 
property  was  given  by  a  judgment-debtor 
as  security  for  the  due  performance  of  the 
decree  in  compliance  with  an  order  made 
under  "0.  XLI,  r.  5  (3)"  and  the  question  was 
raised  whether  such  property  can  be  realised 
by  the  decree-holder  in  execution  or  can 
only  be  realised  by  a  separate  suit.  In  view 
of  the  alteration  of  the  language  contained 
in  O  XXXIV,  r  14,  it  was  held  that  the 
provision  contained  in  that  rule  did  not 
operate  as  a  bar  and  that  the  decree-holder 
can  realise  the  property  in  execution.  The 
learned  Judges  observe  "There  is  no  need 
in  such  a  case  that  there  should  be  anything 
in  the  nature  of  a  mortgage  suit  for  sale 
under  s.  67  of  the  Transfer  of  Property  Act 
with  all  the  expense  and  delay  which  would 
be  thereby  involved.  It  would  be  a  most 

03)  38  Ind.  Cas,  791;  2  V.  L,  J.  55;  (1917)  Fat,  67;  3 


mischievous  state  of  law  if  such  a  thing 
were  necessary  and  it  would  fetter  the  dis- 
cretionof  the  Court  in    accepting  immove- 
able property  as  security  for  the  execution 
of  the  decree/'  In  the  Order  of  Reference  to 
the  Full  Bench  in  Baij  Nath  Goenka  v.  Sia 
Ham  Das   (11)  the  learned  Judges  while 
discussing  the  principleunderlying  the  pro- 
visions of  s.  545,  cl.  (c)  of  the  old   C.  P.  0. 
point  out  that  the  provisions    embodied  in 
the  law  for   the  protection    of  the  decree- 
holder  must  be  interpreted  to  operate  to  hia 
advantage  and  express  their  inclination  to 
accept  the  view  that  the  properties  covered 
by  the  security  bond  executed  pursuant  to 
an  order  under  that  section  could  be  realis- 
ed in  execution  of  the  decree  without  in- 
stituting a  separate  suit     On  this  question, 
the  view  of   the   Madras   High  Court    in 
Subramania  Chettiar  v.  Raja  of  Ramnad,  (10) 
has  been  followed  in  the  most  recent  case  in 
Calcutta  reported  as  Jyoti  Prakash  Nandi 
v,  Mukti  Prakash  'Nandi  (12). 

In  my  view  the  principle  underlying  the 
decision  in  Subramania  Chettiar  v.  Raja 
of  Ramnad  (10)  which  relates  to  the  realisa- 
tion in  execution  of  properties  covered  by 
security  bond  executed  after  a  decree 
may  well  be  applied  to  the  decision  of  the 
present  case,  though  the  security  bond  here 
has  been  executed  not  under  O.  XLI,  r.  5 
but  only  under  O.  XX,  r.  11,  cl.  (2).  It  has 
been  argued  that  an  order  passed  under 
0.  XX,  r.  11,  cl.(2)  is  incapable  of  execution. 
Whether  this  is  so,  or  not,  is  largely  a  ques- 
tion of  the  construction  of  the  order  and  of 
the  intention  of  the  parties  as  may  te 
gathered  from  the  circumstances  relating  to 
the  making  of  the  order.  I  have  already 
pointed  out  at  the  commencement  of  my 
judgment  that  there  can  be  no  doubt  that 
the  parties  in  this  case  intended  that  in 
the  event  of  non-payment  by  the  judgment- 
debtor  the  properties  covered  by  the  bend 
should  be  realised  in  execution.  Execution 
being  postponed  by  the  order  made  under 
O.  XXI,  r.  11,  cl.  (2)  which  provided  also  for 
the  taking  of  a  security  bond  to  meet  the 
possible  contingency  of  non-payment  by  the 
judgment-debtor,  I  fail  to  see  when  such 
contingency  arises  how  the  Court  can  refuse 
execution  unless  there  be  some  legal  im- 
pediment compelling  the  Court  to  dis- 
allow it. 

All  the  cases  discussed  above  show  that 
if  O.  XXXIV,  r.  14,  does  not  operate  as  a 
bar,  then  the  decree-holder  can  proceed 
against  the  secured  properties  by  execution* 


02  1.  0, 1926] 


MUHAMMAD  ISMAIL  l>.  VAhlbODDIN. 


But  it  is  argued  by  Mr.  Krishnaswami  Iyer 
that  even  then,  in  this  case,  the  properties 
charged  cannot  be  sold  in  execution  be- 
cause the  minor  sons  of  the  judgment-deb- 
tor who  were  not  parties  to  the  suit  have 
joined  in  the  execution  of  the  security  bond, 
their  father  representing  them  as  guardian. 
There  is  no  force  in  this  contention.  Thenew 
parties  are  not  strangers  but  only  the  sons 
by  the  judgment-debtor.  In  view  of  the  fact 
that  the  judgment^creditor  is  not  seeking  to 
sell  under  the  ^security  bond  any  interest 
which  he  could  not  otherwise  have  sold,  I 
think  this  objection  must  be  overruled. 

Before  I  pass  on  to  consider  the  second 
argument,  I  may  state  that  it  is  unnecess- 
ary to  discuss  the  decisions  in  MuktaPrasad 
v  Mahadeo  Prasad,  (3)  Amir  v.  Mahadeo 
Prasad(i),Raj Raghubar  Singhv.  Jai  Indra 
B&hdur  Singh  (7)  quoted  by  the  appellant's 
learned  Vakil  in  connection  with  his  argu- 
ment regarding  the  bar  created  by  Order 
XXXIV,  r.  14,  as  all  these  cases  dealt  with 
securities  given  by  third  parties  under 
s.  145  of  the  C.  P.  0. 

The  second  question  for  decision  arises  in 
connection  with  the  argument  based  on 
s.  52  of  the  Provincial  Insolvency  Act.  Ac- 
cording to  that  section,  where  execution  of  a 
decree  has  issued  against  any  property  of  a 
debtor  which  is  saleable  in  execution  and 
before  it  has  been  actually  sold,  notice  is 
given  to  the  Executing  Court  that  an  insol- 
vency petition  by  or  against  the  debtor  has 
been  admitted,  then  the  Executing  Court  is 
bound,  on  application  to  that  effect,  to 
direct  the  property  if  in  the  possession  of 
the  Court  to  be  delivered  to  the  Receiver. 
It  is  argued  by  Mr.  Krisbnaswami  Iyer  that 
the  decree  which  is  sought  to  be  enforced  in 
this  case  being  a  money  decree,  s.  52,  of  the 
Act  applies  and  that,  notwithstanding 
the  fact  that  a  security  has  been  executed 
in  favour  oi  the  decree-holder  subsequent 
to  the  decree,  his  client  is  entitled  to  apply 
to  the  Executing  Court  to  deliver  over  the 
property  in  question  to  him.  Although  a 
secured  creditor  is  not  expressly  excluded 
from  the  operation  of  this  section,  it  seems  to 
me  that  the  section  does  not  affect  him.  The 
Provincial  Insolvency  Act  takes  special  care 
to  preserve  the  power  of  secured  creditors 
to  realise  or  otherwise  deal  with  their  secu- 
rities, as  may  be  seen  from  the  ss.  28  (6)  and 
51  (2).  The  exemption  from  the  operation  of 
the  section  which  must  be  understood  to  have 
been  thus  given  to  secured  creditors  must, 
in  my  opinion,  be  extended  to  money-decree- 


holders  who  have  obtained  securities  in  the 
course  of  execution,  as  in  the  present  case. 
It  is  conceded  that  s.  52  does  not  apply 
to  mortgage  decree  holders.  In  my  opinion 
nothing  in  that  section  affects  the  rights  of 
money  decree- holders  who  have  obtained 
securities  in  respect  of  the  property  covered 
by  such  securities.  They  must  also  be 
treated  as  secured  creditors  for  purposes  of 
the  section  [see  also  s.  2  (a)  and  (e)  of  the 
Act.]  The  argument  based  «n  s.  52  must, 
therefore,  be  overruled. 

In  the  result,  I  agree  with  my  learned 
brother  that  the  order  appealed  against 
must  be  upheld  and  the  appeal  must  be 
dismissed  with  costs. 


v.  N,  v. 

N,  H. 


Appeal  dismissed. 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  104  OF  1925. 

Decembers,  1925. 
Present: — Mr.  Justice  Mukerji. 
Sheikh  MUHAMMAD  ISMAIL- 
PLAINTIFF — APPLICANT 

versus 
VAHIDUDD1 N— RESPONDENT— 

OPPOSITE  PARTY. 

Contract  Act  (IX  of  1872),  s,  2,1— Pro-note,  for 
withdrawal  of  non-compoundable  case,  suit  on,  whether 
maintainable— Public  policy. 

It  is  against  public  policy  to  receive  money  or  a 
promise  to  receive  money  in  consideration  of  an  agree- 
ment to  stifle  a  criminal  prosecution  for  a  non-com- 
poundable offence,  [p.  504,  col.  1.1 

Plaintiff  was  prosecuting  one  K  for  a  non-compound- 
able  offence,  and  in  consideration  of  the  defend- 
ant executing  a  pro-note  in  his  favour  for  a  certain 
sum  of  money  withdrew  the  complaint  with  the  per- 
mission of  the  Court.  In  a  suit  to  reco\  er  the  amount 
of  the  pro-note: 

Held,  that  the  suit  was  not  maintainable  inasmuch 
as  the  consideration  for  the  pro-note  being  opposed  to 
public  policy  was  illegal,  [ibid.] 

Civil   revision    from    an  order    of    the 
Judge,  Small  Cause  Court,    Agra,    dated 
the  *2nd  of  April  1925. 
Mr.  S.  K.  Dar%  for  the  Applicant. 
Dr.  M .  Waliullah,  for  the  Opposite  Party. 

JUDGMENT. — This  revision  arises  out 
of  a  suit  for  recovery  of  money  brought  on 
a  promissory- note  dated  the  10th  of  August 
1923  admittedly  executed  by  the  respond- 
ent in  favour  of  the  plaintiff- applicant. 

The  Court  below  has  found  in  effect  that 
the  plaintiff  was  prosecuting  one  Khairat- 
uUah  for  cheating,  before  cheating  was 
made  a  ooropoundable  offence.  The  plaint- 


504 


8ANK1RAUNGA  MUDAL1AK  V.  OFFICIAL  HECEIVBR. 


iff,  on  consideration  of  the  respondent 
giving  the  promissory-note  for  the  sum  of 
Rs.  400,  withdrew  the  complaint  with  the 
permission  of  the  Court.  On  this  finding 
'the  learned  Judge  held  that  the  suit  on  the 
promissory-note  was  not  maintainable  as  it 
'was  against  public  policy  to  receive  money 
or  a  promise  to  receive  money  in  consider- 
ation of  an  agreement  to  stifle  a  criminal 
prosecution, 

In  this  Court  it  has  been  urged  that  there 
is  not  only  the  promissory-note  but  also 
the  additional  facts  that  on  three  occasions 
the  respondent  admitted  his  liability  for  the 
debt  and  on  the  third  occasion  also  sent 
by  money  order  a  sum  of  Rs.  173  in  part- 
payment.  The  point  for  consideration  is 
whether  the  subsequent  acknowledgments 
of  the  liability  and  the  part-payment  take 
the  case  out  of  the  rule,  Mr.  Dar  has 
argued  that  these  acknowledgments  and 
payment  have  materially  affected  the  posi- 
tion of  the  applicant  and  that,  therefore,  he 
should  succeed.  He  has,  however,  been 
unable  to  show  that  the  applicant's  civil 
remedy,  if  any,  against  Khairatullah  has 
been  lost  owing  to  any  conduct  on  the  part 
of  Wahiduddin  the  respondent.  The  pro- 
missory-note is  dated  the  10th  of  August 
1923  and  it  is  quite  possible  that  the  civil 
remedy  against  Khairatullah  is  still  open. 
There  is  nothing  to  show  that  Wahiduddin 
prevented  the  plaintiff  from  prosecuting 
his  civil  remedy  against  Khairatullah. 
Further,  it  appears  that  parties  should  be 
taken  to  have  known  the  legal  consequence 
of  the  transaction  and  if  the  plaintiff  con- 
tented himself  with  giving  up  his  claim 
against  Khairatullah  he  must  be  taken  to 
have  known  the  fact  that  his  claim  on  the 
promissory-note  against  Wahiduddin  was 
not  enforcible  in  a  Court  of  Law.  In  any 
view  of  the  case  the  judgment  of  the  Court 
below  seems  to  have  been  right. 

It  appears  that  the  suit  involved  two 
other  items,  small  ones,  and  one  of  the  pleas 
taken  is  that  the  Court  below  has  not  decid- 
ed the  plaintiiTs  claim  as  to  those  items. 
It  has,  however,  been  conceded  before  me 
to-day  that  no  evidence  was  adduced  as  to 
those  two  items. 

The  application  fails,  and  is  hereby  dis- 
missed with  costs. 

z.  K.  Application  dismissed. 


[92  1.  0.  1926] 

MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No.  435  OP  1922. 

January  *2,  1925. 
Present  :—  Mr.  Justice  Wallace  and 

Mr.  Justice  Madhavan  Nair. 
SANKARALINGA  MUDALIAR  AND 

OTHERS—  RESPONDENTS  Nos.  1  TO  3 
AND  LEUAL  REPRESENTATIVES  BY  THE  FIRST 
APPELLANT  —  APPELLANTS 

versus 

THE  OFFICIAL  RECEIVER  OP 

TINNEVEIJ.Y—  PETITIONER 

—RESPONDENT. 

Execution  of  decree—  Hindu  joint  family  —  Attach- 
ment of  co-parceners  interest  before  judgment  —  Death 
after  decree  and  before  execution  —  Right  of  survivorship 
if  defeated—  Decree,  construction  of  —Charge,  creation 
of. 

An  attachment  before  judgment  of  the  interest  of  a 
co-parcener  in  a  Hindu  joint  family  property,  followed 
by  a  decree,  will,  in  the  event  of  his  death  subsequent 
to  the  decree  and  before  execution,  have  the  effect  of 
precluding  the  accrual  of  title  by  survivorship  as 
against  the  attaching  creditor,  in  the  same  way  as 
an  attachment  after  decree,  so  that  the  surviving  co- 
parceners can  take  the  property  only  subject  to  the 
claims  of  the  attaching  creditor,  [p.  507,  cols.  1  &  2.] 

[Case-law  considered.! 

Muthusarm  Chetty  v.  Chinnammal,  24  Tnd.  Cas  320; 
26  M.  L.  J.  517  and  Thadi  Ramamurthi  v.  Mcola 
Kamiah,  24  Ind.  Cas.  667;  16  M.  L.  T.  123;  (1914)  M. 
W.  N.  733,  followed. 

Subrao  Mangesh  v.  Mahadevi  Bhatta,  21  Tnd  Cas. 
330,  38  B.  105  at  p,  110;  15  Bom.  L.  R  848  and  Sunder 
Lai  v.  Raghunandan  Prasad,  83  Ind  Cas.  413;  3  Pat. 
253;  5  P.  L.  T.  135;  (1924)  A.  I.  R.  (Pat  )  465,  dissented 
from 

Where  a  compromise  decree  stated  that  the  plaint- 
iffs would  recover  the  amount  "from  the  defendants 
and  also  by  the  sale  of  the  properties  now  under  attach- 
ment before  judgment  by  the  Court  without  having 
any  necessity  for  re-attachment,  and  from  the  defend- 
ants1 other  properties,  and  that  the  attachment  before 
judgment  would  continue  in  force  until  the  whole 
amount  was  paid  according  to  the  compromise  decree: 

Held,  that  the  decree  did  not  constitute  a  charge  on 
the  properties  and  did  not  confer  on  the  decree-holders 
any  higher  rights  than  those  of  money-decree-holders 
who  had  effected  attachment  of  those  properties  for 
executing  their  decrees,  [p.  506,  col.  l.J 

Appeal  against  an  order  of  the  District 
Court,  Tinnevelly,  dated  the  13th  of  July 
1922,  in  C.  M.  P.  No.  566  of  1918,  in  I.  R 
No.  5  of  1917. 

Mr.  S.  T.  Srinivasa  Gopalachari,  for  the 
Appellants. 

Messrs.  Marthandam  and  Chidambaram. 
for  the  Respondent. 


. 

Madhav&ta  Ndlr,  «J.-This  is  ftn  ap- 
peal against  the  order  of  the  District  Judge 
of  Tinnevelly  in  C.  M.  P.  *No.  566  of 
19US  on  his  file  in  tfhich  the  Official 
Receiver  of  Tinnevelly  was  the  petitioner. 
The  appellants,  ^bo  were  respondents 


[{&  1.  0.  1926J  8ANKARAL1NSA  MDBALUR  V.  OFFICIAL  RECEIVER. 


505 


s,  1  to  3  in  the  lower  Court  had  brought 
a  suit,  0.  8.  No.  206  of  1913,  in  the 
'District  Munsifs  Court  of  Ambasamud- 
ram  against  seven  defendants,  all  mem- 
bers of  a  joint  Hindu  family.  Pend- 
ing the  suit  they  applied  for  and  got  an 
attachment  before  judgment  of  the  joint 
family  properties.  The  suit  was  compro- 
mised and  a  razi  decree  Ex.  I,  was  passed 
on  the  23rd  of  September  1914  which  pro- 
vided that  the  defendants  therein  should 
pay  into  Court  Rs.  2,100  with  interest  with- 
in the  15th  of  April  1915  and  that,  in 
default,  the  attached  properties  might  be 
sold  and  the  amount  realised.  It  also  pro- 
vided that  the  attachment  before  judgment 
which  has  already  been  made  would  con- 
tinue until  the  amount  fixed  by  the  decree 
was  paid.  Defendants  Nos.  1  and  7  in  that 
suit  died  subsequent  to  the  decree.  After 
their  deaths  an  execution  application  was 
filed  in  the  District  Munsifs  Court  by  the 
decree-holders,  the  present  appellants,  and 
an  order  for  sale  of  the  attached  proper- 
ties was  made.  Defendants  Nos.  2  to  6  in 
the  suit  were  also  ordered  as  the  legal  re- 
presentatives of  the  deceased  defendants 
Nos.  land  7.  A  petition  for  adjudicating 
defendants  Nos,  2  to  6  as  insolvents  was 
presented  to  the  District  Court  of  Tinne- 
velly  on  the  31st  of  January  1917  and  they 
were  adjudicated  insolvents  by  ordor  of 
that  Court  dated  the  23rd  of  March  1917. 
The  attached  properties  were  sold  in  Court- 
auction  on  the  28th  of  June  1918  in  pur- 
suance of  the  orders  of  the  District  Munsif 
and  were  purchased  by  the  4th  respondent 
in  the  lower  Court.  The  Official  Receiver 
who  was  not  a  party  to  the  sale  proceedings, 
filed  the  petition  out  of  which  this  appeal 
arises,  saying  that  as  the  insolvents*  assets 
had  vested  in  him  on  the  order  of  adjudi- 
cation, the  subsequent  sale  is  not  valid  and 
binding  on  him  and  that  the  sale  should, 
therefore,  be  set  aside.  There  was  also  an 
alternative  prayer  to  the  effect  that,  if  for 
any  reason  the  sale  could  not  be  set  afcide, 
the  decree-holders  should  be  compelled  to 
refund  to  him  the  amount  they  realised  in 
execution. 

The  District  Judge  on  the  first  occ'asion 
held  that  he,  sitting  as  a  Judge  exercising 
insolvency  jurisdiction,  had  no  power  to 
examine  the  validity  or  otherwise  of  an 
Execution  sale  held  by  another  Court, 
and,  therefore,  dismissed  the  petition.  On 
appeal,  however,  by  the  Official  Receiver 
to  this  Court  (C.  M,  A,  No,  128  of 


1919)  this  decision  was  set  aside  and 
the  petition  was  remanded  to  the  lower 
Court  for  fresh'  disposal.  The  District 
Judge  has  now  held  that  the  sale  itself 
could  not  be  set  aside  as  the  auction-pur- 
chaser, 4th  respondent  in  the  lower  Court 
purchased  the  property  bona  fide  and  was, 
therefore,  entitled  to  the  protection  given 
to  bona  fide  purchasers  by  s.  34  (3)  of  the 
Provincial  Insolvency  Act,  111  of  1907,  but 
he  has  granted  the  alternative  prayer  re- 
ferred to  above,  i.  e.,  he  directed  the  decree- 
holders,  the  present  appellants,  to  refund 
to  the  Official  Receiver,  the  respondent 
before  us,  for  the  benefit  of  the  whole  body 
of  creditors* the  sum  of  Rs.  3,153-2-0  realised 
by  them  in  execution.  He  also  gave  them 
leave  to  rank  as  unsecured  creditors  in  the 
subsequent  insolvency  proceedings  before 
the  Official  Receiver.  Against  this  order 
of  the  District  Judge  the  decree-holders 
have  filed  the  present  appeal;  the  Official 
Receiver  has  filed  a  memorandum  of  ob- 
jections stating  that  the  sale  should  also 
have  been  set  aside  as  the  auction-pur- 
chaser could  not  in  the  circumstances  of  this 
case  be  considered  to  be  a  bona  fide  pur- 
chaser. 

Two  points  have  been  urged  before  us 
by  Mr.  S.  T.  Srinivasagopalachariar,  the 
learned  Counsel  for  the  appellants,  viz., 

(1)  that  on  a  proper  construction  of  Ex.  I, 
the  razi  decree,  a  charge  has  been  created 
on   the  attached  properties  in    his  clients1 
favour  and  that,  therefore,  the    properties 
vest  in  the    Official  Receiver  only  subject 
to  his  clients1  rights  under  the  decree  and 

(2)  that   even  if  there  is  no  such  charge, 
inasmuch  as  two  out  of  seven  judgment- 
debtors    had    died   after    the    attachment 
before  judgment    and  also  after  the  decree 
such    prior   attachment    followed    by    the 
decree  prevents  the  shares  of  the  two  de- 
ceased co-parceners  from  surviving  to  the 
rest  aa^d    that,  therefore,  those  shares  do 
not  vest    in    the  Official  Receiver  on  the 
insolvency  of  the  remaining  co-parcener's 
as  they  had  never  vested  in  the  insolvents 
themselves.    He  urges,  therefore,  that  the 
Official  Receiver  had  not  rights  at  least  as 
reg&rds  two-sevenths  of  the  properties  sold 
and  that  his  cli&nts  w^re  entitled  to  retain 
at  least  two-sevenths  of  the  purchase-money 
realised. 

As  regards  point  No.  (1),  Ex.  I  only  states 
that  the  defendants  should  pay  into  Court 
within  a  prescribed  time  the  decree  amount 
with  interest  Qnd  that,  in  default  of  pay- 


500 


3AKKARALINGA  UUDALIAB  V,  OFFICIAL  RECEIVER, 


[92  L  0. 1928] 


menfc,  the  plaintiffs  should  recover  the 
amount  "from  the  defendants  and  also  by 
the  sale  of  the  proparties*now  under  attach- 
ment before  judgment  by  the  Court  with- 
out having  any  necessity  for  re-attachment 
and  from  the  defendants*  other  properties, 
and  that  the  attachment  before  judgment 
should  continue  in  force  until  ^the  whole 
amount  is  paid  according  to  this  compro- 
mise decree11.  These  provisions  do  not,  in 
our  opinion,  constitute  a  charge  on  the  pro- 
perties and  do  not  confer  on  the  decree- 
holders  any  higher  rights  than  those  of 
money-decree-holders  who  have  effected  an 
attachment  of  those  properties  for  executing 
their  decrees. 

As  regards  point  No.  (2)  the  learned 
Counsel  for  the  appellants  has  strongly  re- 
lied upon  a  decision  of  the  Privy  Council 
reported  as  Suraj  Bunsi  Koer  v.  Sheo  Per- 
sad  Singh  (1)  in  support  of  his  argument 
that  the  attachment  before  judgment  in  this 
case  followed  as  it  was  by  the  decree  pre- 
vented the  shares  of  the  deceased  co-par- 
ceners from  surviving  to  the  rest.  As  it 
appears  to  us  that  the  answer  to  the  ques- 
tion now  raised  depends  really  upon  a 
correct  understanding  of  the  principle  laid 
down  by  the  Privy  Council  in  the  above 
case,  it  is  necessary  to  consider  the  exact 
scope  of  that  decision  and  to  examine  how 
the  principle  indicated  therein  has  been 
understood  and  applied  in  subsequent  de- 
cisions. In  that  case  the  father  had  exe- 
cuted a  mortgage  of  properties  belonging 
to  the  joint  family  consisting  of  himself 
and  his  two  sons.  The  mortgagee  brought 
a  suit  on  his  mortgage  against  the  father 
and  got  a  decree  ordering  the  sale  of  the 
property.  In  execution  of  the  decree  the 
property  was  attached  and  an  order  to  cariy 
out  the  sale  was  made.  Subsequent  to  this 
but  before  the  date  fixed  for  the  sale,  the 
father  died  and  the  execution  proceedings 
were  thereafter  continued  against  the  sons 
who  objected  to  the  sale  putting  forward 
their  claims  as  co-parceners  under  the 
Mithakshara  Law.  The  Executing  Court 
referred  them  to  a  separate  suit  and  the 
properties  were  sold.  In  the  suit  by  the 
sons  to  set  aside  the  sale  it  was  found  that 
the  nature  of  the  debt  was  such  as  not  to 
be  binding  on  them.  The  Privy  Council 
set  aside  the  sale  as  regards  the  sons*  two- 
thirds  share  but  sustained  the  sale  to  the 

(1)50.  148;  6  I.  A.  88;  4  Sar.  P.O.  J.I;  3  Suth.  P. 
0.  J.  589;  4  C  L.  K.  226;  2  Shome  L,  tt.  242;  2  Ind. 
Pec.  (N.  s.)  705  (P.  C.), 


extent  of  one-third  which  on  a  partition  in 
his  lifetime  would  have  fallen  to  the  share  of 
the  father.  It  may  be  stated  that  the  reason 
for  upholding  the  sale  with  regard  to  the 
one-third  share  was  not  that  the  mortgage 
executed  by  the  father  could  be  held  to  be 
binding  on  the  estate  to  the  extent  of  his 
own  share  because  their  Lordships  express- 
ly leave  this  point  open.  In  their  Lord- 
ships1 own  words  the  reason  for  the  decision 
was  that  "at  the  time  of  Adit  Sahai's 
(father's)  death,  the  execution  proceedings 
under  which  the  mouza  had  been  attached 
and  ordered  to  be  sold  had  gone  so  far  as 
to  constitute,  in  favour  of  the  judgment- 
creditor,  a  valid  charge  upon  the  land,  to 
the  extent  of  Adit  Sahai's  undivided  share 
and  interest  therein,  which  could  not  be 
defeated  by  his  death  before  the  actual 
sale."  It  is  true  that  in  the  Privy  Council 
case  there  were  not  only  a  decree  and  an 
attachment  in  execution  of  the  decree  but 
also  an  order  for  sale  of  the  properties 
before  the  death  of  the  judgment-debtor; 
but  in  the  very  next  sentence  their  Lord- 
ships state  that  "  they  are  aware  that  this 
opinion  is  opposed  to  that  of  the  High 
Court  of  the  North- Western  Provinces,  in 
the  case  of  Goor  Pershad  v.  Sheodeen  (2)." 
In  that  case  there  was  only  a  decree  and 
an  attachment  in  execution  of  the  decree 
but  no  order  for  sale  before  the  judgment- 
debtor's  death  and  it  was  held  that  the 
judgment-debtor  "  had  no  property  in  the 
house  in  suit  available  after  his  death  m 
execution  of  decree  for  the  satisfaction  of 
the  judgment  debt."  The  Privy  Council 
in  expressly  dissenting  from  this  decision 
must,  we  think,  be  considered  to  have  in 
effect  held  that  an  attachment  in  execution 
of  a  decree  before  the  judgment-debtor's 
death  would  prevent  his  share  from 
surviving  to  his  other  co-parceners  though 
no  order  for  sale  had  been  made  prior  to 
his  death.  That  this  is  the  true  scope  of 
the  Privy  Council  decision  has  been  recog- 
nised by  more  than  one  decision  of  this 
Court  vide-  Bailur  Krishna  Rq,u  v.  Laksh- 
mana  Shanbhogue  (3)  and  Thadi  Rama- 
murthi  v.  Moola  Kamiah  (4).  It  may  be 
mentioned  that  in  Bailur  Krishna  Ran  v. 
Lakshmana  Shanbhogue  (3),  also  there  was 
not  only  an  attachment  in  exe  mtion  of  the 
decree  but  an  order  for  sale  before  the 
judgment-debtor's  death,  but  the  learned 

ff)  4  N.  W.  P.  H,  C.  R  137. 

3)  4  M.  302;  1  Ind.  Dec.  (N.  s.)  1046. 
.  (4)  *l  lnd.  Oa*.  967;  16  M,  L,  T,  123;  (3914;  M,  W,  N, 
733. 


[921.0.1926] 

Judges  indicate  that  the  decision  of  the 
Privy  Council  would  cover  even  a  case 
where  there  was  no  such  order,  for  they 
3tate  at  page  307*,  "  in  declaring  that  the 
ruling  they  were  pronouncing  was  opposed 
to  that  of  the  High  Court  in  the  case  cited, 
the  Privy  Council  in  effect  pronounced  that 
the  interest  of  the  judgment- deb  tor  had,  by 
the  attachment,  been  brought  under  the 
control  of  the  Court  for  the  purpose  of 
executing  the  decree  so  as  to  preclude  the 
accrual  of  a  title  by  survivorship  in  the 
avent  of  the  death  of  the  judgment-debtor 
before  an  order  for  sale  was  made.  In 
the  case  before  the  Court  it  appears  the 
;>rder  for  sale  was  made  before  the  death 
rf  the  judgment-debtor,  but,  whether  this 
be  so  or  not,  we  feel  ourselves  bound  by 
the  ruling  of  the  Privy  Council.'1  In  Thadi 
Ramamurthi  v.  Moola  Kamiah  (4)  there 
was  only  an  attachment  in  execution  of  the 
decree  but  no  order  for  sale  before  the 
judgment-debtor's  death  The  lower  Court 
in  that  case  had  dismissed  the  suit  on  the 
ground  that,  as  the  judgment-debtor  who 
svas  an  undivided  co-parcener  died  before 
the  order  for  sale  was  made,  his  interest 
mrvived  to  the  defendant  and  was  not  avail- 
ible  to  the  plaintiff  for  sale.  The  High 
Court  in  allowing  the  second  appeal  refers 
to  Suraj  Bunsi  Koer  v.  Sheo  Persad  Singh 
1),  Bailur  Krishna  Ran  v.  Lakshmana 
Shanbhogue  (3)  and  Lakskmana  Aiyar  v. 
Srinivasa  Aiyar  (5)  and  states  that 
jhe  question  was  concluded  by  authority. 
Regarding  the  Privy  Council  case  the 
learned  Judges  observe  thus  :  "In  the  case 
before  the  Privy  Council  it  is  true  that  not 
)nly  was  there  an  attachment  but  also  an 
>rder  to  carry  out  the  sale  before  the  death 
)f  the  co-parcener.  But  in  the  course  of 
iheir  judgment,  the  Judicial  Committee 
expressed  their  dissent  from  a  judgment 
>f  the  North-West  Provinces  High  Court 
n  which  it  was  held  that,  while  the  co- 
parcener had  died  after  his  interest  in  the 
property  was  attached  but  before  an  order 
:or  sale  was  made,  there  remained  no 
nterest  in  the  judgment-debtor  which 
jould  be  brought  to  sale.1*  In  Muthusami 
Jhetty  v.  Chunammal  (6)  it  is  stated  that 
'It  has  been  repeatedly  decided  by  this 
3ourt,  that  attachment  alone  without  an 
)rder  for  sale  precludes  the  accrual  of  the 
title  by  survivorship  in  the  event  of  the 

(5)  8  M,  L.  J.  64. 

(6)  24  Ind.  Gas.  320;  26  M.  L.  J.  517. 

*Page  of  4  M.— [El] 


SANKARALINGA  MUOAUAR  V.  OFFICIAL  RECEIVER* 


&07 


death  of  the  judgment-debtor  after  attach- 
ment and  before  the  order  for  sale,1* 

It  has  been  brought  to  our  notice  that 
the  learned  Judges  in  Zemindar  of  Karvet- 
nagar  v.  Trustee  of  Tirumalai,  Tirupati 
etc.,  Devastanam  (7)  state  at  page  442*  that 
the  decisions  in  Bailur  Krishna  Rau  v. 
Lakshmana  Shanbhogue  (3)  and  Lakshmana 
Aiyar  v.  Srinivasa  Aiyar  (5)  cannot  be 
relied  upon  in  view  of  the  decision  of  the 
Pi  ivy  Council  in  Moti  Lai  vr  Karrabuldin 
(8)  to  the  effect  that  an  attachment  merely 
prevented  alienation  and  did  not  give  title. 
They  also  state  that  the  same  view  was 
taken  in  Sankaralinga  Reddi  v.  Kandasami 
Thevan  (9).  These  observations  have  been 
noticed  and  commented  upon  in.  two  later 
cases  of  this  Court  reported  as  Murugaiya 
Mudaliar  v.  Ayyahorai  Mudaliar  (10)  and 
Thadi  Ramamurthi  v.  Moola  Kamiah  (4). 
These  decisions,  with  which  we  respectful- 
ly agree,  render  it  unnecessary  for  us  to 
discuss  the  matter  afresh.  In  Thadi 
Ramamurthi  v.  Moola  Kamiah  (4),  which 
has  already  been  noticed  above,  the  learned 
Judges  state:  "In  Sankaralinga  Reddi  v. 
Kandasami  Thevan  (9)  the  decision  in 
Bailur  Krishna  Rau  v.  Lakshmana  Shan- 
bhogue (3)  was  not  dissented  from,  but  it 
was  expressly  pointed  out  that  under  that 
decision  the  attachment  has  the  effect  of 
preventing  the  property  passing  by  sur- 
vivorship, and  the  fact  that  the  attaching 
creditor  does  not,  by  attachment,  create 
such  a  charge  on  the  property  as  to  acquire 
priority  over  other  creditors  coming  in,  is 
in  no  way  opposed  to  this  view.  This  also 
is  what  was  decided  in  Zemindar  of  Kar- 
vetnagar  v.  Trustee  of  Tirumalail  Tirupatit 
etc.,  Devaslanam  (7)  wherein  it  was  held 
that  no  charge  was  created  by  the  attach- 
ment in  favour  of  the  creditor  as  against  a 
subsequent  creditor.  There  is,  no  doubt,  an 
observation  in  Zemindar  of  Karvetnagar  v. 
Trustee  *f  Tirumalai,  Tirupati,  etc,,  Devas- 
tanam (7)  that  the  decision  in  Bailur 
Krishna  Rau  v.  Lakshmana  Shanbhogue  (3) 
is  opposed  to  this  view.  But  whether  that 
is  so  or  not,  no  dissent  was  expressed  from 
the  decision  to  the  effect  that  the  attachment 
precludes  the  accrual  of  title  by  survivorship. 
The  observation  of  their  Lordships  of  the 
Privv  Council  in  MotilM  v.  Karrabuldin (8) 

W  2  Ind.  Cas.  18;  32  M.429;  19  M.  L  J.  401. 

(8)  25  0  179;  24  I.  A.  170;  1  0.  W.  N,  639;  7  Sar.  P. 
0.  J.  222;  13  Ind.  Dec.  (N.  s.)  121  (P.  C.). 

(9)30  M.  413;  17  M.  L.  J   334;  2M.  L.  T.  365. 

(10)  9  Ind  Cas.  266;  9  M.  L.  T.  96. 

*Page  of  32  H.— [Ed.J 


508 


8ANKRALINGA  MUDALTAR  V,  OFFICIAL  RECEIVER. 


relied  upon  in  Zemindar  of  Karvetnagar 
v.  Trustee  of  Tirumalai,  Tirupati,  etc., 
Devastanam  (7)  has  no  reference  to  this 
Question.  That  such  is  the  effect  of  this 
decision  seems  to  be  borne  out  by  the 
judgment  in  Murugaiya  Mudaliar  v. 
Ayyithorai  Mudaliar  (10)  in  which  the 
learned  Judges  say  that  the  case  of  Zemin- 
dar of  Karuetnagar  v.  Trustee  of  Tirumalai, 
Tirupati  etc.,  Devastanam  (7)  had  reference 
to  the  question  whether  in  the  circumstances 
of  that  case  the  judgment-creditors  who 
had  obtained  orders  of  attachment  were 
in  a  stronger  position  than  those  who  had 
not  obtained  such  orders."  In  the  light 
of  the  above  remarks,  the  observation  in 
Subrao  Mangesh  v.  Mahadevi  Bhatta  (11) 
that  the  proposition  laid  down  in  Bailur 
Krishna  Ran  v.  Lakshmana  Shanbhogue 
(3)  has  no  longer  the  support  of  the  Madras 
High  Court  is  not  correct.  In  this 
connection  we  would  only  add  that,  having 
regard  to  the  decision  of  the  Privy  Council 
in  Motilal  v.  Karrabuldin  (8)  it  must  now 
be  taken  that  the  words  "charge"  used 
by  their  Lordships  in  Suraj  Bunsi  Koer 
v.  Sheo  Persad  Singh  (1)  in  the  passage 
extracted  by  us  must  be  understood  only 
in  a  general  and  not  in  the  strictly  legal 
sense  (see  also  Mayne's  Hindu  Law,  para.  332 
9th  edition). 

Thus  it  will  be  seen  that  the  decision 
in  Suraj  Bunsi  Koer  v.  Sheo  Persad  Singh 
(1)  and  the  later  decisions  of  this  Court 
establish  the  position  that  an  attachment 
in  execution  of  the  judgment-debtor's  in- 
terest in  joint  family  property  will,  in 
the  event  of  his  death  subsequent  to  such 
attachment  preclude  the  accrual  of  title 
by  survivorship  as  against  the  attaching 
creditor. 

In  the  present  case,  the  attachment  was 
before  judgment.  The  judgment-debtor 
died  after  the  decree  but  before  any  order 
for  sale  was  made.  The  question  is  whether 
the  fact  that  the  attachment  was  before 
judgment  makes  any  difference  na  roiMnN 
the  application  of  the  above  r:-:,:.,1!;  ;o. 
There  is  a  direct  authority  in  ML  'v,  • :  ••  . 
Chetti  v.  Chinnammal  (6)  that  it  does  not 
make  any  difference.  In  that  decision  it 
was  held  that  ar*  attachment  before  judg- 
ment has  the  effect  of  preventing  the  in- 
terest of  the  deceased  judgment- deb  tor 
from  passing  by  survivorship  in  a  case 
where  the  judgment-debtor  dies  after  the 

(11)  21  Ind  Cos.  3iQ;  38  B,  105  at  p,  110;  15  Bom.  L. 


[92  1.  0.  1926] 

decree.  The  reason  is  thus  stated  by  the 
learned  Judges  :  (t  \Vhen  a  decree  is  passed 
subsequently  it  is  unnecessary  to  attach 
the  property  again  and  the  prior  attach- 
ment renders  the  property  available  for 
sale  in  execution.  An  attachment  followed 
by  a  decree,  therefore,  preculdes  the  accrual 
of  the  title  by  survivorship  for  the  same 
reasons  as  an  attachment  after  decree" 

It  has,  however,  been  argued  by  the  learned 
Vakil  for  the  respondent  that  the  decisions 
in  Subrao  Mangesh  v.  Mahadevi  Bhata 

(11)  &ud  Sunder  Lai  v.  Raghunandan  Prasad 

(12)  take  a    contrary  view  and   that  they 
should   be    followed   in  preference  to  the 
Madras  cases.  Subrao  Mangesh  v.  Mahadevi 
Bhatta  (11)  is,  no  doubt,  a  direct  decision  in 
his  favour,    but    with    all  respect  we  feel 
unable  to  follow  that  decision.    In  that  case 
the  learned  Judges  begin  their  judgment  by 
stating  that  the  determination  of  the  case 
before  them  depends  on  tho  correct  con- 
struction of  the  Privy  Council  judgment  in 
Suraj    Bunsi  Koer  v.   Sheo  Persad    Singh 
(1).  ^  They  then    distinguish  that   case  by 
saying  that   there,  there  had    been  not  a 
mere  attachment  before  judgment  but  an 
attachment     in     execution    and  an  order 
for  sale.  They  also  seem  to  think  that  their 
Lordships  of  the  Privy  Council  use  the  word 
*'  charge  "  in  the  passage  extracted  by  us  in 
its  strict  legal  significance  vide  page  107*. 
We  have  already  stated  that,  in  our  opinion, 
their  Lordships  in   effect  held  that  an  order 
for  sale  was  not  essential  for  defeating  the 
survivorship   and   that  it  is    not  right  to 
understand  the  word  "  charge"  as  having 
been  used  in   the  strict  legal  sense.    The 
learned  Judges  seem   to  deduce    from  the 
Privy    Council  decision    that    some  step 
should  be  taken  in  execution  which  will 
have  the  effect  of  defeating  the  survivorship 
but  what    that  step  exactly  is,  in  a,  case 
where  there  has  already  been  an    attach- 
ment before  judgment  and  a  decree  follow- 
ing it  prior  to  the  judgment-debtor's  death, 
they  do  not  state.    If   as  we  have  shown 
above  a  mere  attachment  in   execution  is, 
according  to  the  Privy  (Council,  enough  to 
defeat  the  survivorship,  and    if  in  a  eaee 
where  there  has  been  an  attachment  before 
judgment  and  a  decree  foil  wing  it  there 
need  not  be  any  further  attachment  after 
the  decree-  Me  0.  XXXVIII,  r.  2    of  te 
0.  P.  C.    we  fail  to  see  what  further 


(12)  83  Ind.  Cas.  413;  3  Pat  250;  5  P.  L.  T.  135;  (1924) 
A,  I  R.  (Pat  )  465.  _  V 
*Page  of  33  B,~l&tt|  ~ 


[92  I.  0.  1926J  SANKARALINQA  MUDALIAR  t?.  OFFICIAL  RECEIVER. 


L09 


such  a  decree-holder  should  take  in  order 
to  bring  matters  to  the  stage  where  a  mere 
attachment  in  execution  has  been  made. 
The  learned  Judges  then  rely  on  a  decision 
of  this  Court  in  Ramanayya  v.  Rangap- 
payya  (13)  for  the  position  that  an  attach- 
ment before  judgment  has  not  the  effect  of 
defeating  the  survivorship  and  observe  that 
though  in  that  case  the  defendant  had  died 
before  the  decree,  it  does  not  make  any 
difference  whether  he  dies  before  or  after 
the  decree.  This  observation  does  not  seem 
to  us  to  be  sound.  It  is  true  that  until  a 
decree  is  passed  an  attachment  before  judg- 
ment could  not  operate  to  render  the  at- 
tached property  available  for  sale  in  exe- 
cution, but  if  a  decree  is  also  passed  before 
the  defendant's  death,  it  is  unnecessary  to 
attach  the  property  again  and  the  prior 
attachment  renders  the  property  available 
for  such  sale.  The  decision  in  Ramanayya 
v,  Rangappayya  (13)  has  been  referred  to 
and  distinguished  in  a  later  case  in  Mu- 
thusami  Chetty  v.  Chunammal  (6)  which 
has  not  been  noticed  by  the  Bombay  High 
Court.  In  Ramanayya  v.  Rangappayya 
(13)  itself  the  learned  Judges  clearly 
indicate  that  an  attachment  before  judg- 
ment would  become  operative  as  soon  as  a 
decree  is  -passed  and  that,  if  the  defendant 
had  died  subsequent  to  the  decree,  they 
would  have  held  that  such  prior  attach- 
ment would  Defeat  the  survivorship. 

We  might  also  notice  that  it  has  been 
held  in  Ganu  Singh  v.  Jangi  Lai  (14)  that 
the  effect  of  an  attachment  of  property 
under  the  C.  P.  C.  whether  made  before  or 
after  decree  is  the  same,  provided  that  in  the 
former  case  a  decree  is  made  for  the  plaint- 
iff at  whose  instance  the  attachment  takes 
place,  see  page  533*.  In  the  same  judgment 
it  has  been  observed  that  "  the  main  object 
of  an  attachment  before  judgment  is  to 
enable  the  plaintiff  to  realise  the  amount 
of  the  decree,  supposing  a  decree  is  eventu- 
ally made,  from  the  defendant's  property". 

For  the  above  reasons  we  must  hold,  dis- 
senting from  Subrao  Mangesh  v.  Mahadevi 
Bhatta  (11)  and  following  Muthusami  Chetty 
v.  Chunammal  (6),  that  an  attachment  be- 
fore judgment  followed  by  a  decree  prior 
to  the  judgment  debtor's  death  has  the 
effect  of  precluding  the  accrual  of  title 
by  survivorship  as  against  the  attaching 

(13)  17  M.  144;  6  lud.  Dec.  (\.  s )  00. 
(14)260.531;  13  lad.  Dec.  (N    B.)  941. 

" 


creditor  in  the  same  way  as  an  attachment 
after  decree.  This,  however,  should  not  be 
interpreted  to  mean  that  the  operation  of 
survivorship  is  altogether  stopped  by  reason 
of  the  attachment  whether  before  or  after 
decree  for,  if  the  attaching  creditor  dees 
not  execute  his  decree,  or  if  the  entire  pro- 
perty is  not  needed  to  satisfy  the  decree, 
then  the  property  or  the  surplus,  as  the  case 
may  be,  will  go  to  the  other  co-parceners. 
The  decision  discussed  above  §Jiould,  in  our 
view,  be  only  taken  to  mean  that  the  other 
co-parceners  take  the  property  subject  to 
the  claims  of  the  attaching  creditor. 

With  regard  to  the  decision  in  Subrao 
Mangesh  v.  Mahadevi  Bhatta  (11)  it  might 
also  be  mentioned  that,  while  discussing 
the  Privy  Council  case,  the  learned  Judges 
seem  to  make  a  point  of  the  fact  that  in 
the  case  before  them  there  was  no  actual 
sale  of  the  property  even  after  the  judg- 
ment-debtor's death  and  seem  to  indicate 
that,  if  there  was  such  a  subsequent  sale, 
the  prior  attachment  might  preclude  the 
operation  of  survivorship  vide  page  109*.  We 
do  not  think  that  the  Privy  Council  decision 
justifies  the  drawing  of  such  a  distinction; 
but,  in  view  of  the  fact  that  in  the  present 
case  there  has  been  an  actual  sale  after  the 
judgment-debtor's  death,  it  is  not  necessary 
to  discuss  the  matter  any  further. 

The  other  case  relied  upon  by  the  res- 
pondent is  the  one  in  Sunder  Lai  v.  Raghu- 
nandan  Prasad  (12)  which  follows  Subrao 
Mangesh  v.  Mahadevi  Bhatta  (11.)  In  that 
case  it  was  found  as  a  fact  that  there  was 
no  attachment  before  judgment  and  also 
that  the  defendant  died  just  after  the  hear- 
ing of  the  suit  and  before  the  judgment,  see 
page  256*)".  The  occasion,  therefore,  for  con- 
sidering the  question  as  regards  the  effect  of 
an  attachment  before  judgment  in  a  case  like 
the  present  did  not  actually  arise  though 
the  learned  Judge  states  that  an  attachment 
before  judgment  does  not  rank  in  the 
same  position  as  an  attachment  after  judg- 
ment. They  simply  follow  the  decision  in 
Subrao  Mangesh  v.  Mahadevi  Bhatta  (11)  and 
this  case,  therefore,  does  not  carry  us  any 
further. 

In  the  result,  the  lower  Court's  decree 
will  be  modified  by  a  direction  that  the  ap- 
pellants are  entitled  to  retain  two  sevenths 
of  the  purchase-money  realised  by  the  sale 
of  the  properties  and  are  bound  to  refund 
only  jhe  balance  to  the  Official  Receiver  for 
"^*Fage  of  38  B ,  —  [&d.]  * 


SiO 


fcADtU 


V.  KASHI  NA*B. 


[921. 


the  amount  that  they  have  thus  to  refund 
and  for  any  further  claims  that  they  may 
have,  as  regards  interests  and  costs,  they 
will  rank  as  unsecured  creditors  in  the 
insolvency  proceedings  before  the  Official 
Receiver  The  parties  will  receive  and  pay 
proportionate  costs  throughout. 

Wallace*  J. — I  am  in  general  agreement 
with  my  learned  brother  as  to  the   conclu- 
sion to  be  properly  deduced  from  the  case- 
law  quoted  before  us,  viz.,  that  an  attach- 
ment before  judgment,  when  followed  by  a 
decree  passed  prior  to    the  death  of    the 
judgment-debtor  co-parcener    prevents,  as 
against  the  rights  of  the  attaching  creditor 
the  accrual  cf  the  survivorship    right  to 
the   surviving  co- parceners.    But  I  should 
like  to  say,  though    it  is  not  necessary  for 
the  present  disposal  of  this  case,  that  I  con- 
sider that  the  language  used  in  cases,  Bailur 
Krishna  Ran  v.  Lakshmana  Shanbhogue  (3), 
Thadi  Kamamurthi  v.  Moola  Kanniah  (4) 
and  Muthusami  Chetti  v.    Chunammal  (6), 
on  which  we  rely,   is  too    broad  if  inter- 
preted   literally.     I    do    not    think    that 
these  cases  intended  to     lay    down   more 
than  that,  so  far  as  concerns  the  attaching 
decree-holder's  right  to  hold  the  share  of 
the  deceased   co-parcener    liable    for    his 
debts,  it  is  not  defeated  by  the  survivor- 
ship right,  and  not  any  general  principle 
that  whenever  there  is  an    attachment  of 
co-parcenery  property  followed  by,  or  preced- 
ed by  a  decree,  the   survivorship  right  of 
co-parceners  to  that  property    is   barred. 
Obviously,  for  example,   if    the  attaching 
decree-holder's  debt,  and  the  debts  of  other 
decree-holders   who  are  entitled  in  law  to 
take   advantage    for    themselves    of    the 
attachment  made  by  another  decree-holder 
are   satisfied  and  there  remains  a   surplus 
out  of  the  share  of  the  deceased  judgment- 
debtor  co- parcener,  that  surplus  will  accrue 
by  survivorship  to  the  other  co-parceners. 
The   proposition  that  an  attachment  plus 
decree  will  in  all    cases    and    until    the 
cessation    of    the  attachment  prevent  the 
accrual  of  the  survivorship  right  does  not, 
I  think,  necessarily  follow  from  the  cases 
quoted   and  is  a  proposition  which   leads 
to  many  practical    difficulties  in  partition 
and  other  proceedings.    I  think  the  correct 
way  of  stating  the  law  is  that  the  accural  of 
survivorship  is  not  prevented  but  operates 
subject  to  the  prior  rights  of  the  attaching 
decree  holder    and    other     decree-holders 
who  are  entitled  to  take  advantage  of  their 
attachment  to   have  their    decree    debts 


satisfied  in  execution  proceedings  against 
what  was  the  share  of  the  deceased  judg- 
ment-debtor co-parcener.  The  control  over 
that  share  which  the  Court  has  by  virtue 
of  the  attachment  will  be  used  by  it  for 
that  end  and  will  not  be  related  until  the 
end  is  attained.  It  is  this  exercise  of  this 
control  which,  in  my  view,  constitutes  the 
"valid  charge  over  the  property  of  which  the 
Privy  Council  speaks  in  the  Suraj  Bun$i 
Koerv.Shen  Persad  Singh  (I)  case  which 
"charge"  must  spring  out  of  the  attachment 
which  puts  the  property  under  control  oi 
the  Court  and  not  out  of  any  subsequent  step 
in  execution;  only  the  attachment,  if  before 
judgment  must  have  been  followed  up  by 
a  decree  passed  before .  the  death  of  the 
judgment-debtor  co-parcener  since  it  is 
the  decree  which  declares  the  extent  of 
the  right  which  the  attaching  creditor  has 
against  the  property. 

I  agree  in  the    order    proposed    by  my 
learned  brother. 

v.  N.  v.  Decree  modified. 

N.  H. 


ALLAHABAD  HIGH  COURT, 

FIRST  APPEAL  FROM  ORDER  No.  14  OP  1925. 

November  24,  1925.   * 
Present:— Mr.  Justice  Sulaiman  and 

Mr.  Justice  Mukerji. 
Babu  RADHA  KISHUN  AND  OTHERS- 
PLAINTIFFS — APPELLANTS- 

versus 
KASHI  NATH — DEFENDANT— RESPONDENTS. 

Oaths  Act  (X  of  1873),  8.  9— Parties  agreeing  to  abidt 
by  statement  of  referee —Examination  of  referee— 
Omission — Referee,  whether  can  be  re-examined. 

There  is  nothing  in  the  Oaths  Act  which  declares 
that  once  a  referee,  by  whose  statement  the  parties 
have  agreed  to  abide,  has  been  put  upon  his  oath  and 
has  been  examined,  he  cannot  be  re-called  and  re-ex- 
amined, if  all  the  points  which  are  necessary  to  be 
established  for  the  decision  of  the  case  have  not  been 
put  to  him.  [p.  511,  col.  2.] 

First  appeal  from  an  order  of  the  Sub- 
ordinate Judge,  Ghazipur,  dated  the  5th 
December  1914. 

Messrs.  K.  Verma  and  A.  Pandey,  for  the 
Appellants. 

JUDGMENT. 

Mukerji,  J.— This  appeal  arises  out  of 
a  suit  for  closing  of  certain  windows  and 
other  reliefs  and  has  been  directed  against 
an  order  of  remand. 

It  appears  that  when  the  case  came  before 
the  Court  for  trial,  the  parties  agreed  that 
it  should  be  decided  according  to  the  ev^ 
denes  of  one  Babu  Anand  Prasad,  Bab\| 


[92  I.  0. 1926] 


BAD  HA  KISHUN  V.  KASHI  NATff. 


511 


Anand  Prasad  was  accordingly  examined  as 
a  referee  with  the  consent  of  the  parties  and 
he  made  certain  statements.  The  learned 
Munsif  was  of  opinion  that  the  evidence 
given  by  Babu  Anand  Prasad  covered  the 
whole  controversy  between  the  parties  and 
would  justify  a  disposal  of  all  the  issues 
raised.  He  accordingly  partially  decreed 
the  suit  and  partially  dismissed  it.  The 
parties  appealed  and  both  the  appeals  were 
disposed  of  by  a  single  judgment  of  the 
learned  Subordinate  Judge.  The  learned 
Judge  was  of  opinion  that  the  statement  of 
Babu  Anand  Prasad  was  not  sufficient  for 
the  disposal  of  the  case  and  he  remanded 
the  suit  to  the  Court  of  first  instance  for 
disposal.  He  directed  that  the  referee 
should  be  re-called  and  should  be  re- ex- 
amined on  all  the  matters  that  were  left  in 
darkness  owing  to  the  referee  not  being 
questioned.  He  further  said  that  if  there 
were  any  points  on  which  the  referee  could 
not  throw  any  light,  those  points  must  be 
decided  on  evidence  adduced  by  the  parties. 

As  there  were  two  appeals  before  the  Sub- 
ordinate Judge,  two  appeals  have  been  filed 
in  this  Court.  But  in  this  Court  the  appel- 
lants in  both  the  cases  are  the  plaintiffs. 
It  has  been  argued  before  us  that  the  state- 
ment of  Babu  Anand  Prasad  was  enough 
for  the  disposal  of  the  entire  suit.  It  is 
not  necessary  for  us  to  examine  that  state- 
ment in  detail.  It  is  sufficient  to  say  that 
we  agrefe  with  the  Court  below  that  fur- 
ther light  was  necessary  on  the  controversy 
between  the  parties.  That  being  so,  the 
question  is  whether  the  referee  could  be 
called  again  and  examined. 

The  parties  are  agreed  that  if  there  be 
any  point  which  cannot  be  disposed  of  ac- 
cording to  the  statement  of  the  referee,  evi- 
dence may  be  led  on  those  points  by  the 
parties.  The  main  question  for  disposal  in 
these  cases  is  whether  the  referee  canr  as  a 
matter  of  law,  be  re- called  and  re-question- 
ed. 

It  appears  to  me  that  there  is  nothing  in 
the  Oaths  Act  which  declares  that  a  referee 
c&nnot  be  re-examined  if  all  the  points 
which  would  be  necessary  to  be  established 
are  not  put  to  him.  It  was  argued  on  behalf 
of  the  plaintiffs  that  they  had  Agreed  to  the 
examination  of  Babu  Anand  Prasad  only  at 
that  particular  moment  when  he  was  before 
the  Court  and  their  agreement  to  abide  by 
his  statement  came  to  an  end  the  moment 
the  referee  was  examined.  The  learned 
Qouneel  for  tne  appellant  has  relied  on  the 


case  of  ThoyiAmmal  v.  Subbaroya  Mudali 
(1).  As  I  read  that  case,  I  find  therein  no 
authority  for  the  proposition  which  the 
learned  Counsel  for  the  plaintiffs  would 
have  established.  In  that  case  it  \vas  said 
that  the  statement  of  the  referee  was  not 
sufficient  for  the  disposal  of  the  case  and  the 
Court  simply  said  that  the  facts  which  re- 
mained unproved  must  be  proved  in  the 
ordinary  way  by  way  of  evidence.  It  is  not 
clear  from  the  judgment  whether  the 
referee  was  unable  to  throw  further  light 
on  the  case  or  whether  he  was  not  at  all 
available  or  whether  it  was  possible  to  re- 
examine  him  and  to  obtain  more  informa- 
tion from  him,  if  he  could  give  it.  That 
being  the  case,  it  cannot  be  inferred  from 
what  was  stated  by  the  Judges,  that  the 
Court  held  that  the  referee  could  not  be 
examined  again.  On  the  other  hand,  the 
dictum  of  the  learned  Judges  of  this  Court 
who  decided  the  case  of  Mahabir  Prasad 
Misr  v.  Mahadeo  Dat  Misr  (2)  would  go  to 
show  that  this  Court  was  of  opinion  that  if 
the  referee  was  still  alive  and  available,  he 
could  be  examined  again,  in  the  case  of 
there  arising  a  further  necessity  for  eluci- 
dation of  the  matters  in  dispute. 

There  is  nothing  in  the  Oaths  Act  which 
says  that  the  reference  to  the  referee  comes 
to  an  end  as  soon  as  the  referee  has  been 
once  examined.  In  the  case  of  reference 
to  arbitration  we  know  that  an  award  may 
be  referred  back  to  the  arbitrator  for  his 
decision  if  he  kaves  anything  undecided. 
The  same  rule  ought  to  be  followed.  For, 
as  already  stated,  there  is  nothing  in  the 
Oaths  Act  to  prevent  the  application  of 
this  rule.  In  the  circumstances  I  would 
dismiss  both  the  appeals  and  uphold  the 
order  of  remand. 

Sulaiman,  J.— I  agree.  The  question 
whether  a  referee  by  whose  statement  the 
parties  have  agreed  to  abide  can  be  re- 
examined  if  certain  points  were  omitted  in  his 
statemen  ,  is  apparently  not  covered  by  any 
direct  authority.  The  appellants1  learned 
Vakil  relies  on  the  case  of  Thoyi  Ammal  v. 
Subbaroya  Mudali  (1)  where  it  was  remark- 
ed: "If  the  matter  stated  affords  sufficient 
material  for  the  decision  of  the  suit,  a 
decree  may  be  passed  on  the  facts  thus  con- 
clusively proved.  If  the  facts  so  proved 
are  not  sufficient  for  the  decision  of  the 
case,  such  further  facts  as  are  necessary 

(1)  22  M.234;  8  Ind.  DOO.(N.  a)  167, 

(2)  13  A,  366;  A.  W.N.  (1801)  143;  7  Ind,  Dec,  (N.  s) 


tii 


MAUNG  SET  KHA1NG  V.  MAUNG  TUN  NTEIN. 


must  be  proved,  in  the  ordinary  way,  by 
evidence  adduced  on  both  sides.  The 
facts  proved  by  the  special  oath  are,  how- 
ever, conclusively  proved,  and  the  further 
evidence  must,  in  our  opinion,  be  limited 
to  matters  not  proved  by  the  oath," 

On  the  other  hand  the  respondent's  Vakil 
relies  on  a  remark  in  the  judgment  in 
Mahabir  Prasad  Misr  v.  Mahadeo  Dat  Misr 
(2).  "Although  I  should  always  be  strongly 
disinclined  to  assist  a  party  to  an  agreement 
under  the  Oaths  Act  in  getting  put  of  it, 
yet  I  am  bound  to  see  that  the  object  of  the, 
parties  when  they  entered  into  it  has  been 
satisfactorily  accomplished  by  the  deposi- 
tion of  the  referee,  and,  if  that  object  has 
not  been  accomplished,  then  that  a  further 
deposition  should  be  obtainedt  or,  if  that  is 
impossible,  as  is  the  case  here,  owing  to 
the  Raja's  death,  that  the  question  should 
be  tried  in  the  ordinary  way  by  the  Court.1' 

The  examination  of  both  these  cases,  how* 
ever  shows  that  both  these  remarks  were 
obiter  dicta  and  it  was  not  necessary  to 
decide  the  point.  In  the  Madras  case 
the  referee  was  the  plaintiff  himself  and 
he  might  have  been  expected  to  be  in 
a  position  to  fill  up  the  gaps.  The  learned 
District  Judge,  however,  had  remanded 
the  case  for  a  trial  de  novo  and  the  Madras 
High  Court  merely  decided  that  the  state- 
ment of  the  plaintiff  as  the  referee  must  be 
regarded  as  conclusively  proving  the  facts 
deposed  to  by  her  and  that  the  further  evi- 
dence should  be  confined  to.  other  matters. 
Neither  party  apparently  asked  for  a  re- 
examination  of  the  referee  and  the  point 
accordingly  was  not  expressly  decided. 

In  the  Allahabad  case  the  referee  was 
dead,  and  no  question  of  his  re  examination 
arose. 

It  has  been  contended  before  us  that 
once  the  oath  was  taken  by  the  referee 
the  agreement  was  fully  carried  out  and 
if  either  party  is  unwilling  to  accept  as  con- 
clusive any  further  statement  of  the 
referee  such  further  statement  should  not 
be  forced  on  him.  But  if  this  contention 
were  to  be  accepted  the  result  would  be  that 
as  soon  as  the  referee  has  left  the  witness- 
box  he  cannot  be  re-called  even  by  the 
Trial  Court  though  some  material  state- 
ment has  been  accidentally  omitted.  It  is 
impossible  to  accept  this  as  the  correct 
position  under  the  Oaths  Act.  If 'the  Trial 
Court  has  power  to  re-call  a  referee  there 
eeems  to  be  no  good  ground  on  principle 
the  same  power  should  not  be  exercis- 


[921.  C.  1926J 

ed  by  the  Appellate  Court,  if  it  comes  to  the 
conclusion  that  his  statement  is  not  complete 
and  exhaustive. 

Of  course  if  a  party  were  to  show  good 
ground  why  the  referee  should  not  be  ex- 
amined again  the  Court  may  under  special 
circumstances  refuse  to  re-call  him  in  order 
to  fill  up  gaps  in  his  statement,  as  it  is  the 
duty  of  both  parties  to  see  that  his  state- 
ment completely  covers  all  the  points  in 
dispute.  In  this  case,  however,  1  see  no  good 
ground  why  the  referee  should  not  be  asked 
to  clear  up  certain  points  left  vague  by  him. 

By  the  Court.— Both  these  appeals  are 
dismissed  and  the  order  of  remand  is  upheld 
with  costs  including  in  this  Court  fees  on 
the  higher  scale. 

z.  K.  Appeals  dismissed. 


RANOOON  HIGH  COURT. 

SPECIAL  BECOND  CIVIL  APPEAL  No.  188  OF 

1»24. 

January  15,  1925 

Present: — Mr.  Justice  Pratt. 

MAUNQ  SET  KHAING— APPELLANT 

versus 

MAUNG  TUN  NYEIN  AND  OTHERS— 
EKSPONDENTS. 

Malicious  prosecution —Damages,  suit  to  7'ecouer~ 
Reasonable  and  probable  cause,  absence  of— Malice  t 
proof  of. 

In  order  to  succeed  in  a  suit  to  recover  damages 
for  malicious  prosecution  the  plaintiff  must  prove 
malice  as  Avell  as  absence  of  reasonable  and  probable 
cause,  [p.  513,  col.  2J 

Where  a  prosecution  is  obviously  false  and  not 
instituted  in  good  faith  the  Court  will  infer  malice, 
but  where  a  prosecution  has  been  instituted  under  a 
bona  fide  belief  that  the  accused  has  committed  an 
oft'enee  even  though  that  belief  is  mistaken,  the  plaint- 
iff cannot  obtain  a  decree  unless  the  prosecution  was 
malicious  as  well,  even  if  enquiry  had  shown  that  no 
oilence  was  committed,  [ibid.] 

JUDGMENT.— The  defendant  in  the 
Trial  Court  was  working  the  Tongyi  Fishery 
of  which  his  son  was  lessee. 

The  defendant  had  himself  purchased 
the  lease  of  the  fishery  for  two  years  pre- 
viously. He  found  the  plaintiffs  fishing  in 
a  channel,  which  he  believed  to  be  the 
Pakka  Yo  forming  a  part  of  his  fishery,  but 
which,  it  was  subsequently  proved  was 
not  a  part  of  his  fishery  and  was  not  the 
Pakka  Yo. 

He  made  a  report  to  the  thugyi  and,  by 
his  advice,  to  the  Police,  to  the  effect  that 
the  plaintiffs  had  been  caught  fishing  in 


[92 1.  0. 


SET  KHAttfG  V.  MAUttO  TUN  NYBItf. 


513 


the  Pakka  Yo,  which  was  part  of  his  fishery. 

The  Police  prosecuted  for  theft  and  the 
result  of  the  trial  was  that  the  accused, 
plaintiffs,  were-acquitted . 

^  The  plaintiffs  sued  for  damages  for  mali- 
cious prosecution  in  the  Township  Court. 

The  Trial  Court  held  that  as  the  defend- 
ant believed  that  the  'Yo1  was  the  Pa-kka 
Yo  and  part  of  his  fishery,  there  was  reason- 
able cause  for  his  complaint. 

It  also  found  that  there  was  no  malice 
on  the  part  of  the  defendant  and  dismissed 
the  suit. 

On  appeal  the  District  Court  held  that 
the  defendant,  had  he  made  any  inquiries 
before  reporting  to  the  Police  would  have 
found  that  the  water  in  which  the  plaint- 
iffs were  fishing  was  no  part  of  his  fishery. 

The  learned  District  Judge  found  accord- 
ingly that  the  prosecution  was  instituted 
wihout  reasonable  cause. 

As,  however,  the  mere  institution  of  a 
prosecution  without  reasonable  and  pro- 
bable cause  is  not  sufficient  to  justify  a 
decree,  if  the  defendant  honestly  believed 
that  the^  accused  (plaintiffs)  had  commit- 
ted a  criminal  offence,  it  was  necessary  to 
find  that  the  prosecution  was  malicious  and 
the  ^first  Appellate  Court  has  come  to  a 
finding  on  this  point. 

I  regret  I  am  not  quite  able  to  follow 
the  reasoning  by  which  the  learned  Dis- 
trict Judge  has  come  to  the  conclusion  that 
there  was  malice. 

He  observes  that  unless  the  sole  object 
of  the  prosecution  was  to  bring  the  offend- 
er to  justice,  there  would  be  malice  unless 
reasonable  and  probable  cause  were  proved. 

He  proceeds  to  state  that  the  object  of 
the  prosecution  in  the  present  case  was 
solely  to  protect  his  own  interests  and  that 
he  was  unable  to  hold  that  any  sinister 
motive  was  proved. 

Then  follows  a  somewhat  vague  sen- 
tence:— 

"An  honest  belief  that  the  defendant  was 
justified  in  informing  the  Police  does 
not  absolve  him  unless  he  could  prove 
reasonable  and  probable  cause,  combined 
with  a  real  desire  to  serve  the  ends  of 
justice  rather  than  his  own  private  interests11 
and  the  conclusion  drawn  is  4tl  am,  there- 
fore, bound  to  hold  that  in  the  present  case 
malice  was  proved." 

The  conclusion  does  not  seem  to  follow 
from  the  premises,  and  the  absence  of  a 
real  desire  on  the  part  of  the  defendant  to 
serve  the  ends  of  justice  rather  than  his  own 

S3 


private  interests  does  not  necessarily  in- 
volve malice.  * 

Oa  the  District  Judge's  own  showing  the 
object  of  the  prosecution  was  solely  to  pro- 
tect the  defendant's  own  interests,  and 
there  was  no  sinister  motive. 

This  ia  practically  a  finding  that  there 
was  no  malice. 

To  protect  one's  own  interests  is  not 
necessarily  malicious  and  is  not  incompati- 
ble with  a  real  desire  to  serve  the  ends  of 
justice. 

In  reality  the  Judge's  view  seems  to  be 
that  malice  is  a  necessary  corollary  from 
the  absence  of  reasonable  and  probable 
cause. 

But  this  is  not  a  correct  view  of  the   law. 

There  must  bo  malice  as  well  as  an  ab- 
sance  of  reasonable  and  probable  cause. 

No  doubt  where  a  prosecution  is  ob- 
viously false  and  not  instituted  in  good 
faith,  the  Courts  will  infer  malice,  but 
where  a  prosecution  has  been  instituted 
under  a  bond  fide  belief  that  the  accused 
has  committed  an  offence,  even  though  that 
belief  is  mistaken,  the  plaintiffs  cannot 
obtain  a  decree  unless  the  prosecution  is 
malicious  as  well,  even  if  inquiry  would 
have  shown  that  no  offence  had  been  com- 
mitted, vide  Quinn  v.  Leathern  (1). 

Actual  malice  has  n6fc  been  proved  and 
it  cannot  be  inferred  from  the  fact  that  the 
defendant  made  no  inquiries  before  mak- 
ing a  report;  nor  from  the  fact  that  he 
charged  the  plaintiffs  with  theft.  Prom 
his  point  of  view  ths  plaintiffs  were  stealing 
his  fish. 

Both  Courts  were  satisfied  that  the  de- 
fendant believed,  wnen  he  made  the  report 
that  the  plaintiffs  were  fishing  in  a  part  of 
the  Tongyi  Fishery,  though,  as  a  matter  of 
fact,  they  were  not. 

The  Police  did  not  investigate  this  point 
or  they  would  have  found  there  was  no 
ground  for  a  criminal  prosecution,  and  if 
the  Magistrate  had  gone  into  this  point  at 
the  beginning  of  the  proceedings,  he  would 
have  found  that  there  was  no  ground  for 
framing  a  charge. 

It  is  the  plaintiffs1  misfortune  that  the 
Police  prosecuted  them  without  making  any 
inquiry  into  the  boundaries  of  the  defend- 
ant's fishery. 

It  is  ta  my  mind  impossible  on  the  evi- 
dence to  hold  that  the  prosecution  was 

(I)  (1001)  A.  C,  495;  70  L.  J,  P.  C.  76;  85  L.  T,  261); 
60  W,  R>  139;  65  J*  P,  708;  17  T.  L.  tt.  749, 


malicious,  and,  unless 

can  be  inferred,  the  suit  was  bound  to  fail. 

I  set  aside  the  finding  and  decree  of  the 
District  Court  and  restore  the  finding  and 
decree  of  the  Township  Court  with  costs  in 
all  Courts. 

The  cross-objection  must  also  be  dismis- 
ed  with  costs. 

z,  K.  Cross-objection  dismissed. 


ALLAHABAD  HIGH  COURT. 

PIKST  APPEAL  FROM  ORDER  No.  36  OF  1925. 

November  24,  1925, 
Present;— Mr.  Justice  Sulaiman  and 

Mr.  Justice  Mukerji. 

MUHAMMAD  IBRAHIM— INSOLVENT 

—APPELLANT 

versus 

RAM  CHANDRA— VENDEE  JAGAT  RAM, 
VAKIL — RECEIVER— RESPONDENT. 

Provincial  Insolvency  Act  (V  of  1Q20),  ss.  85,  61(6) 
—Annulment  of  adjudication—Payment  of  debts  in 
full— Release  of  debt,  whether  payment—Interest  sub- 
sequent to  date  of  adjudication,  whether  must  be 
paid. 

Even  an  unconditional  release  of  his  debt  by  a 
creditor  does  not  amount  to  a  payment  in  full  of  the 
debt  within  the  meaning  of  s.  35  of  the  Provincial  In- 
solvency Act.  [p.  515,  col  1.] 

Before,  the  provisions  of  s  35  of  the  Provincial 
Insolvency  Act  oan  be  availed  of,  all  the  debts  of  the 
insolvent  must  be  discharged  in  full.  Interest  subse- 
quent to  the  date  of  the  adjudication,  though  it  cannot 
be  taken  into  account  at  the  time  of  the  iiist  distribu- 
tion of  the  dividends,  has  to  be  paid  out  of  the  assets 
of  the  imolvant  if  they  are  sufficient  for  the  purpose, 
and  is,  therefore,  a  part  of  the  debt.  Such  interest 
must  te  paid  before  the  benefit  of  s.  35  can  be  claimed. 
[p.  515,  col.  2.J 

First  appeal  from  an  order  of  the  Dis- 
trict Judge,  8aharanpur,  dated  the  19th  of 
January  1925. 

Messrs.  Iqbal  Ahmad  and  Ram  Nama 
Prasad,  for  the  Appellant, 

Mr.  Nehal  Chand,  for  the  Respondents, 

JUDGMENT,— This  is  an  appeal 
against  the  Receiver  from  an  order  refusing 
to  annul  the  appellant's  adjudication. 
Muhammad  Ibrahim  was  adjudged  insol- 
vent on  the  24th  of  April  l91i>  and  his 
property  vested  in  the  Official  Receiver. 
On  the  13th  of  February  1922  the  Receiver 
entered  into  a  contract  for  sale  of  a  certain 
house  with  Ram  Chandra  for  a  sum  of 
Rs.  3,OCO  and  received  Rs.  500  as  earnest 
money.  When  he  proceeded  to  sell  this 
proper ty>  an  objection  was  filed  by  the 
insolvent's  wife  claiming  this  house  as  her 


MUHAMMAD  IBRAHIM  V.  EAM  CtUNDRA.  [VZ  1.  U.  JLtfXOJ 

malice  is  proved  or  lowed  and  ultimately  on  the  29th  of  Janu- 
ary 1924  the  High  Court  decided  against 
the  wife,  Rashida  Khatun.  A  subsequent 
application  for  review  also  proved  inf  ruc- 
tuous.  On  the  3rd  of  July  1924  the  insol- 
vent filed  an  application  purporting  to  be 
under  s.  38  of  the  Insolvency  Act  setting 
forth  a  composition  scheme.  In  this  he 
stated  that  he  was  able  to  procure  money 
from  his  relations  and  would  pay  up  all  the 
debts  that  were  entered  in  the  schedule. 
It  appe'ars  that  his  son  made  payments  out 
of  Court  to  various  creditors  and  obtained 
receipts  from  them.  Among  these  credi- 
tors was  one  Rura  Mai.  His  receipt  bears 
date  the  4th  of  September  1924.  Under 
this  receipt  Rura  Mai  no  doubt  admitted 
that  he  had  received  the  amount  due  under 
his  decree  and  promissery-note  and  that  not 
a  single  shell  remained  due.  On  the  13th 
of  September  1924  Rura  Mai  filed  an  appli- 
cation in  the  Court  stating  that  he  had 
received  re-payment  of  his  debts  from  the 
insolvent's  son  Abdul  Hai  and  that  he  had 
no  objection  to  the  insolvent's  application 
being  granted.  It  appears  that  the  debts 
of  other  creditors  were  also  paid  or  dis- 
charged. On  the  13th  of  September  1924 
a  statement  was  made  by  the  insolvent's 
Vakil  that  his  application  under  s.  38 
should  be  treated  as  an  application  under 
s.  35  and  that  the  annulment  of  the  insol- 
vent's adjudication  should  be  ordered  inas- 
much as  all  the  debts  had  been  paid  in 
full.  Notice  of  this  application  was  order- 
ed to  be  issued.  The  report  of  the  Receiver 
\vasinfavour  of  the  insolvent,  but  Rura 
Mai  came  forward  and  claimed  interest  on 
his  debt  and  also  certain  expenses  which 
he  had  incurred  in  connection  with  the 
appeal  in  the  High  Court.  The  Receiver, 
however,  asked  for  Rs.  399  as  his  remunera- 
tion and  expenses.  On  the  7th  of  Decem- 
ber 1924,  the  learned  District  Judge  came 
to  the  conclusion  that  all  the  debts  had  not 
been  discharged  inasmuch  as  interest  due 
to  Rura  Mai  had  not  been  paid.  He  accord- 
ingly declined  to  order  the  annulment  of 
the  insolvent's  adjudication,  Subsequent- 
ly the  insolvent  informed  the  Court  that  the 
house  should  not  be  sold  for  Rs.  3,000  as 
other  persons  were  prepared  to  offer 
Rs.  5,000  and  Rs.  6,000  and  prayed  that 
the  sale  be  stayed.  The  District  Judge 
forwarded  the  application  to  the  Receiver 
to  take  steps  but  it  reached  him  too  late  as 
the  sale-deed  in,  favour,  of  Rura  Mai  had 


gwn  property,    Protracted  proceedings  foi-    beeu  registered  lialf  au  hour  earlier,  Oa  thia 


[&2  I.  0.  1926J    *  MUHAMMAD  IBRAHIM  V, 

the  learned  Judge  refused  to  set  aside  the 
same. 

The  insolvent  appeals  from  both  the 
order  dated  the  9th  of  December  1924  and 
the  last  order  dated  the  19fch  of  January 
1925  and  has  obtained  the  leave  of  the 
High  Court  to  appeal. 

The  first  point  to  consider  in  First 
Appeal  from  Order  No.  37  19  as  to  whe- 
ther he  was  entitled  to  an  annulment.  Sec- 
tion 35  of  Act  V  of  1920  requires  that 
where  in  tlie  opinion  of  the  Court,  a 
debtor  ought  not  to  have  been  adjudged 
insolvent,  or  where  it  is  proved  to  the 
satisfaction  of  the  Court  that  the  debts 
of  the  insolvent  have  been  paid  in  full,  the 
Court  shall,  on  the  application  of  the  debtor, 
or  of  any  other  person  interested,  by  order 
in  writing,  annul  the  adjudication.  This 
is  not  a  case  where  it  can  be  said  that  the 
debtor  ought  not  to  have  been  adjudged 
insolvent.  The  contention  of  the  insolvent 
is  that  the  debts  of  the  insolvent  have  been 
paid  in  full,  inasmuch  as  although  some 
amount  of  interest  might  have  been  out- 
standing, Rura  Mai  had  given  a  complete 
and  full  discharge  of  his  debts  We  agree 
thai  the  receipt  and  the  application  purport- 
ed to  give  a  full  discharge  of  the  debt,  but 
even  an  unconditional  release  by  a  creditor 
cannot  amount  to  a  payment  in  full  of  -the 
debt  within  the  meaning  of  s.  35.  This 
was  the  view  clearly  expressed  in  the  Eng- 
lish case  In  re  Keet  (I)  which  has  been 
followed  by  Indian  High  Courts,  vide  in  re 
Subrati  Jan  Mahomed  (2)  and  Briji  Kessoor 
Laul  v.  Official  Assignee  of  Madras  (3).  It 
is,  therefore,  clear  that  the  mere  release  of 
the  balance  of  the  debt  due  to  Rura  Mai 
did  not  amount  to  a  full  payment  so  as  to 
entitle  the  insolvent  to  an  annulment.  It 
has  been  argued  on  behalf  of  the  appellant 
that  Rura  Mai  would  not  have  been  entitl- 
ed to  any  interest  on  his  debt  subsequent 
to  adjudication  and  that  such  subsequent 
interest  is  not  included  within  the  expres- 
sion "the  debts  of  the  insolvent11  contained 
in  s.  35.  Under  s.  48,  sub-cl.  2  of  the  Act 
the  right  of  a  creditor  to  receive  out  of  the 
debtor's  estate-toy  higher  rate  of  interest 
to  wbSfch  he  may  be  entitled  is  not  preju- 
diced after  all  the  debts  proved  have  been 

(1)  (1005)  2  K.  B.  666;  74    L,  J.  K.  B.  694;  93  L.  T. 
&59;  54  W.  R.  20;  12   Manson.  235;  21  T.  L  R.  615. 

(2)  20  lad.  Oaa,  851);  38'  B.  200;    15  Bom.  L.  R. 

(3)  52  Ind.  Oas.  9*9;  37  M.  L.  J.  244;  28  M,  L.   T, 
111;   (1919;  H  W,  N,  795;   10  L,   W,  640;  43  M. 

fit 


RAM  OHANBfeA. 


515 


paid  in  full*  In  s.  61,  sub-ch  6  it  is  provid- 
ed that  where  there  is  any  surplus  after 
payment  of  the  foregoing  debts  it  shall  be 
applied  in  payment  of  interest  from  the 
date  on  which  the  debtor  is  adjudged  an 
insolvent  at  the  rate  of  six  percfcntum  per 
annum  on  all  debts  entered  in  the  schedule. 
It  is  noteworthy  that  s.  38  does  not  use 
the  words  "proved  debts  or  debts  entered 
in  the  schedule/1  It  must,  therefore,  be 
taken  that  before  s.  35  can  be  availed  of, 
all  the  debts  of  the  insolvent  must  be  dis- 
charged in  full,  Subsequent  interest, 
though  it  cannot  be  taken  into  account  at 
the  time  of  the  first  distribution  of  the 
dividends,  has  to  be  paid  out  of  the  assets  if 
sufficient,  and  is,  therefore,  a  part  of  the 
debt.  It  is  clear,  therefore,  that  there  was 
a  sum  of  money  due  to  Rura  Mai  which 
might  have  been  released  but  was  certain- 
ly not  paid,  though  the  principal  sum  and 
interest  up  to  the  date  of  adjudication  had 
been  paid.  First  Appeal  from  Order  No.  37 
of  1925,  therefore,  fails  and  is  accordingly 
dismissed  but  without  costs  as  no  one  ap- 
pears for  the  respondents. 

The  sale  which  is  sought  to  be  set  aside 
took  place  in  pursuance  of  a  previous  con- 
tractof  sale  dated  the  13th of  February  1922. 
While  the  insolvency  proceedings  were 
pending  the  property  vested  in  the  Receiver 
and  he  had  full  power  to  dispose  of  it. 
The  execution  of  the  sale  was  delayed  owing 
to  proceedings  taken  by  the  insolvent's 
relations.  It  may  be  that  some  two  years 
afterwards  the  value  of  the  property  had 
risen  higher  and  some  persons  came  for- 
ward to  make  higher  offers.  This,  however, 
did  not  justify  the  Receiver  to  go  back  upon 
his  original  contract  for  sale.  No  stay 
order  was  passed  by  the  District  Judge 
and  the  sale  took  place  at  a  time  when, 
there  was  no  prohibition  against  it.  When 
the  order  of  annulment  has  been  upheld 
we  are  unable  to  hold  that  the  sale  should 
be  set  aside.  This  appeal  also  fails  and 
is  dismissed  with  costs  including  in  this 
Court  fees  on  the  higher  scale. 

z.  K.  Appeal  dismissed. 


516 


VENCATACHARUR  v.  BONTHAM  P^HAYAPPA  CHETTY. 


192  J. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1644  OF  1922. 

February  26,  1925. 

Present  ;— Mr.  Justice  Odgers. 

C,  VENCATACHARIAR— PLAINTIFF 

— APPELLANT 

versus 

BONTHAM  PACHAYAPPA  CHETTY 

AND  OTHERS— DEFBNDANTS  Nos.  1  TO  4 

— RESPONDENTS. 

Construction  of  document — Grant  of  income  of  pro- 
perty, whether  grant  of  property  itself. 

A  grant  of  the  income  of  certain  property  without 
any  limitation  is  a  grant  of  the  property  itself,  [p.  517, 
col.  1.]  iyar,  6S  hid. 

Vaithinatha  Aiyar  v.   Thayagaraja  Axv    Greener, 
Gas.  631;  41  M.  L.  J.  20  at  p.  29,  Manno 
(1872)  14  Eq.  450  at  p.  402;  27  L  T.  408,  Mayer,  Alder- 
eon  and  Burgesses  of  Southmolton  v.  Attorney-General 
(1854)  5  H.  L.  C.  1  at  p.  31,  10  E.  K.  796,  23  L.  J    Oh' 
567;  18  Jur.  435;   101    R.  R  1,  followed 

Second  appeal  against  a  decree  of  the 
District  Court,  Salem,  in  A.  8.  No.  89  of 
1916,  preferred  against  a  decree  of  the 
Court  of  the  District  Munsif,  Dharmapuri, 
in  O.  8.  No.  315  of  1915. 

Mr.  K.  V.  Krishnaswavyi  Iyer,  for  the 
Appellant. 

Mr.  B.  Somayyat  for  the  Respondents. 

JUDGMENT.— This  was  a  suit  for 
partition  and  delivery  with  mesne  profits 
of  one-third  of  the  permanent  lease-hold 
village  of  Pacharahalli.  The  suit  was  decreed 
by  the  District  Munsif.  On  appeal  to  Jhe 
learned  District  Judge  of  Salem  it  was 
held  that  the  plaintiff  was  not  entitled 
to  one-third  of  the  village  but  only  to 
one-third  of  the  income  On  the  hearing 
of  the  second  appeal  Mr.  K.  V.  Krishna- 
swami  Iyer  appeared  for  the  plaintiff-appel- 
lant, and  Mr.  Somayya  for  the  respondents 
Nos.  1  to  4  intimated  that  his  clients  had  no 
interest  and  took  no  part  in  the  argument. 
I  have  accordingly  heard  the  appeal  as  an 
ex  parte  decree  matter.  The  plaint  agree- 
ment of  the  4th  September  1845  has  appar- 
ently disappeared  and  we  are  thrown  back 
for  its  terms  on  a  recital  in  the  judgment 
in  0.  S.  No.  569  of  1887  in  the  District 
Munsif  s  Court  of  Tiruppattur.  The  Dis- 
trict Munsif  there  says ; — "Its  contents  are 
to  the  effect  that  in  consideration  of  the 
advances  made  in  kind  and  in  money 
to  the  tenants  of  the  villages  by  Sesha 
lyengar,  Krishna  lyengar  agreed  to  divide 
the  income  in  cash  and  war  am  of  tha  said 
villages  with  Sesha  lyengar,  in  the  propor- 
tion of  two  to  one,  to  give  the  latter  accounts 
as  to  produce,  warametc)t  of  the  two  vil- 
lages and  in  the  result  to  conduct  the 


affairs  of  the  villages  in  consultation 
with  Sesha  lyengar.  The  document  closfes 
with  a  final  clause  to  the  effect  that  the 
contracting  parties  should  divide  between 
them  any  less  relating  to  these  villages  in 
the  proportion  mentioned  ."  Krishna  lyen- 
gar's  interest  is  now  vested  in  the  defend- 
ants and  Sesha  lyenger  was  the  appellant's 
father.  In  Second  Appeal  No.  13.07  of  1890, 
Ex  A  (2),  Wilkinson  and  JBandley,  JJ.,  held 
that  with  regard  to  this  agreement.  "We 
see  no  reason  to  doubt  that  the  grantor  who 
was  the  uncle  of  the  grantee  intended  to 
alienate  and  did  alienate  in  perpetuity  to 
his  nephew  a  one-third  share  of  the  village 
which  he  held  on  permanent  lease  in  con- 
sidciation  of  services  rendered  and  in  all 
probability  out  of  natural  affection."  In 
Ex.  L,  Varadachari,  the  son  of  Krishna 
lyengar,  the  grantor,  refers  to  the  present 
plaintiff  as  our  co-parceners  Venkatachari 
and  others.  "That  is  a  deed  of  collateral 
security  dated  1896.  In  a  plaint  Ex.  D  in  O. 
8.  No.  663  of  1901  on  the  file  of  the  District 
Munsif  s  Court  of  Tirupattur  the  present 
plaintiff  and  others  brought  a  suit  claim- 
ing one-third  share  in  the  villages  and  ih 
Ex.  D.  (1)  the  written  statement  of  the  first 
defendant  Varadachari  in  the  same  suit  he 
pleaded.  *kln  any  case  the  plaintiffs  are 
entitled  only  to  one-third  share  in  the 
said  villages."  In  an  affidavit  Ex.  F.  (1) 
in  0.  S.  No.  530  of  1907,  E.  P.  No.  1038  of 
1908,  in  the  same  District  Munsif  s  Court 
Varadachari  refers  to  the  two-thirds  share 
belonging  to  him  in  the  said  village  and 
also  in  the  same  document  states  "after 
excluding  the  one-third  share  belonging 
to  the  plaintiffs  in  the  permanent,  ijara 
village  of  Pacharahalli,  1  sold  etc.  This 
seems  to  me  to  be  sufficient  to  show  that 
what  was  really  granted  was  not  only  one- 
third  share  in  the  income  but  one-third 
of  the  village  itself  and  that  was  what  both 
parlies  in  the  past  have  thought  was  the 
meaning  of  the  agreement.  The  learned 
District  Judge  refer  to  a  certain  suit  O.  8. 
No  2  of  1913,  Ex,  I,  and  says  that  "the  pre- 
sent plaintiff  and  the  present  defendants 
were  arrayed  as  against  each  as  rival  pur- 
chasers in  a  Court-  auction  of  that  two-  third 
sharenght  which  wasadmittedly  the  property 
of  their  mutual  judgment-debtor,  the  ven- 
dor of  the  present  defendants  in  thisf  case11 
and  held  that  the  rights  in  the  present 
village  arenot  concluded  by  Ex.  E.  He  did 
not  consider  the  Exhibit  1  have  referred  to, 
Ihe  law  that  a  giflol  the  income  may  under 


1.  0.  1928J  COMHI88IONB*  OP  ItfCOMR-TAX  V.  M.  H.  SANJANA  A  CO, 


517 


circumstances  amount  to  a  gift  of  the  corpus 
maybe  seen,  forexample  inMayor,  Aldermen 
and  Burgesses  Co.  of  Southmolton  v.  Attorney- 
General  (1)  where  Lord  St.  Leonards  said  : 
"As  regards  the  law,  if  the  rents  of  the 
estate  are  given,  they  represent  the  estate. 
If  the  rents  are  given  in  certain  propor- 
tions, so  as  to  exhaust  the  whole  of 
the  present  rents,  and  if  no  one  is  en- 
titled to  be  benefited  more  than  an- 
other beyond  that  which  is  specifically 
given,  that  is  a  representation  of  the  estate 
itself  in  those  proportions  "  And  in  Man- 
nox  v.  Greener  (2)  Vice  Chancellor  Malins 
said.  "Now  it  has  been  argued  in  this  case 
that  a  gift  of  the  income  of  real  estate  does 
not  pass  more  than  a  life-estate,  bull  think 
it  is  thoroughly  settled  that  before  the 
Wills  Act  a  devise  of  the  rents  and  profits 
passed  a  real  estate  for  life.  That  being  the 
case,  that  which  would  give  a  life-estate 
before  the  Wills  Act,  by  the  28th  section  of 
that  Act,  gives  now  a  fee  simple.''  These 
two  English  authorities  have  been  referred 
to  in  a  judgment  of  this  Court  reported  in 
Waithinatha  Aiyar  v.  Thayagaraja  Aiyar 
(3)  when  it  was  held  that  a  gift  of  the  in- 
come of  property  without  any  limitation 
is  a  gift  of  the  property  itself. 

A  question  has  been  raised  as  to  the  ap- 
plicability of  s.  54  oftlieC.P.  C.  The  learned 
District  Judge  held  that  it  was  a  right  to 
income  only  that  wg^s  to  be  partitioned  ;  I 
fail  to  see  why  it  should  affect  the  question 
that  the  leases  were  not  registered  when  the 
estate  was  so  registered  In  the  District 
Judge's  view  s.  54  had  no  application.  I 
think  in  this  respect  the  learned  District 
trudge  was  wrong  in  my  view  expressed 
above  and  that,  therefore,  s.  54  could  apply. 

The  lower  Appellate  Court's  decree  must 
be  reversed  and  that  of  the  District  Munsif 
restored  (as  modified  below)  with  costs  in 
this  Court  against  5th  respondent.  Respond- 
ents Nos.  1  to  4  who  were  the  only  appel- 
lants in  the  lower  Appellate  Court  must 
pay  the  present  appellant's  costs  in  the 
lower  Appellate  Court.  As  to  future  mesne 
profits,  respondents  Nos.  1  to  4  will  be 
liable  to  plaintiff  up  to  date  of  sale  by 
them  to  5th  respondent — from  that  date 
the  latter  will  be  liable  to  plaintiff. 

v.  N.  v. 

z.  K.  Appeal  allowed. 

(1)  (1154)  5  H.  L.  0. 1  at  p.  31,  10  E.  R.   793;  U23   L. 
Jl  Oh.  567;  18  Jur.  435;  101  R.  R.  1. 
'  "(2)  (18T2)  14  Eq.  456  at  p.  462;  27  L.  T  408. 

(3)  68.liHl.  Oas,  C31;  41  M.  I*  J.  20  at  p.  29. 


BOMBAY  HIGH  COURT. 

CIVIL  REFERENCE  No.  4  OP  Iy25. 

August  18,  1925. 

Present: — Sir  Norman  Maoleod,  Kr , 

Chief  Justice,  and  Mr.  Justice  Coyajee. 

THE  COMMISSIONER  OF  INCOME-TAX, 

BOMBAY 

versus 
M.  H.  SANJANA  &  Co.,  LTD. 

Income  Tax  Act  (XI  of  1922),  s.  25  (8)— Business 
transferred  from  one  proprietor  to  another^  whether 
discontinued — Refund  of  tax,  ~ 

Income  tax  is  chargeable  on  the  profits  of  a  business 
and  it  is  immaterial  if  there  is  any  change  in  the  per- 
son who  carries  on  a  business,  so  long  as  the  business 
is  continued,  [p  519,  col  I  J 

Section  25  (3)  of  the  Income  Tax  Act  is  applicable 
only  to  cases  in  which  a  business  is  discontinued 
entirely  and  not  to  cases  in  which  it  is  transferred 
from  one  set  of  proprietors  to  another.  The  question 
to  be  dtcided  under  the  section  is  whether  the  business 
is  discontinued  and  not  whether  it  is  discontinued  by 
a  particular  person,  [p.  518,  col  1.] 

Where  a  Company  carrying  on  a  business  sells  the 
business,  including  the  good  will  and  the  benefit  of  all 
running  contracts,  to  another  Company,  the  ownership 
and  management  of  the  business  is  changed,  but  the 
business  is  not  discontinued,  the  purchaser  Company 
succeeds  to  the  business  and  continues  it.  Section 
25  (3)  of  the  Income  Tax  Act  has,  therefore,  no  applica- 
tion to  such  a  case,  [p  519,  col.  2.] 

Reference  made  by  the  Commissioner  oi 
Income-Tax,  under  s.  66  (2)  of  the  Indian 
Income-Tax  Act. 

Mr.  Kanga,  Advocate  General,  (with  him 
Mr.  A.  Kirke-Smith,  Government  Solicitor), 
for  the  Commissioner  of  Income  Tax. 

Sir  Chimanlal  Setalvad,  KT.,  for  the  Asses- 
sees. 

JUDGMENT. 

Madeod,  C.  J. — This  is  a  case  stated 
by  the  Commissioner  of  Income  Tax  under 
s.  66  (2)  of  the  Income  Tax  Act  XI  of  1822 
and  referred  to  the  High  Court  with  the 
opinion  thereon  of  the  Commissioner,  at  the 
instance  of  the  assessees,  the  liquidators  of 
Messrs.  M.  H.  Sanjana&  Company,  Limited 
(in  voluntary  liquidation),  hereinafter  called 
the  Company.  The  Company  was  started 
in  1919  V>  carry  on  the  business  of  mer- 
chants, commission  agents,  contractors, 
suppliers  of  stores,  shipchandlers,  etc.,  and 
did  so  until  the  end  of  the  year  1922,  when 
it  was  resolved  to  take  it  into  voluntary 
liquidation. 

On  February  21,  1923,  the  liquidators  en- 
tered into  an  agreement  with  Abmedbhoy 
Currimbhoy  and  Albert  Raymond  on  behalf 
of  a  new  Company  to  sell  to  the  newX5om- 
pany  when  incorporated  the  business  in- 
cluding all  the  stock-in-trade,  furniture, 
fittings,  machinery,  and  plant,  motor  cars, 
buildings  and  lands,  the  lease  cf  the  office 


518 


6GMMI89IOK  BR  OF  WOOMWAX  V.  M.  H,  SAXJANA  &  CO,          [92  I.  0. 1926] 


remises  at  Elphinstone  Circle,  the  good- 
will of  the  business  including  all  trade 
marks  and  the  benefit  of  all  running  con- 
tracts. 

By  an  agreement  dated  July  20,  1923, 
between  the  Company  and  its  liquidators 
of  the  first  part,  Ahmedbhoy  Currimbhoy 
and  Albert  Raymond  of  the  second  part, 
and  the  new  Company  of  the  third  part 
the  above  mentioned  agreement  was  adopt- 
ed. Th3  business  which  uptill  that  time 
had  been  carried  on  by  the  assessees  began 
to  be  conducted  by  the  new  Company.  For 
the  year  April  1,  1922,  to  March  31,  1923, 
the  Company  was  assessed  to  income-tax 
and  super- tax  on  the  profits  amounting  to 
Rs,  3,79,408  for  the  calendar  year  1921.  At 
the  time  of  the  assessment  for  the  year 
1923-24  the  assessees  submitted  the  accounts 
of  the  Company  for  the  period  January  1, 
1922,  to  November  30,  1922,  disclosing  a 
profit  of  Rs.  1,99,208.  The  assessees  claim- 
ed under  s.  25  (3)  of  the  Act  that  they  were 
not  liable  to  pay  any  tax  on  their  profit, 
and  that  on  the  other  band  as  regards  the 
assessment  for  1922-23  they  were  entitled  to 
substitute  the  profits  of  Rs.  1,99,208,  for  the 
eleven  months  up  to  December  1,  1922,  in 
place  of  the  profits  of  Rs.  3,79,408  for  the 
year  1921  and  get  a  refund  of  the  tax  over- 
paid. 

This  claim  for  a  refund  was  disallowed 
on  the  ground  that  s.  25  (3)  of  the  Act  was 
applicable  only  to  cases  in  which  a  busi- 
ness was  discontinued  entirely  and  not  to 
cases  in  which  it  was  transferred  from  one 
set  of  proprietors  to  another,  and  that  under 
B.  26  of  the  Act  the  new  Company  as  suc- 
cessors to  the  business  were  liable  to  be 
taxed  on  the  profits  made  by, the  Company 
in  1922  and  they  were  taxed  accordingly. 
The  question  on  which  the  opinion  of  the 
Court  is  required  is  not  very  succinctly 
stated  in  the  letter  of  reference. 
I  should  prefer  to  express  it  as  follows: — 
On  the  facts  of  the  case  are  the  assessees 
entitled  to  claim  the  refund  they  ask  for 
under  the  provisions  of  s.  25  (3)  of  the 
Income  Tax  Act  of  1922? 

Section  25  (3)^  only  refers  to  a  business 
which  was  in  existence  at  the  commence- 
ment of  the  Act,  namely,  April  1, 1922. 

If  such  a  business  is  discontinued  no 
tax  shall  be  payable  in  respect  of  the  in- 
come, profits  and  gains  of  the  period  be- 
tween the  end  of  the  previous  year  and,  the 
date  of  such  discontinuance.  And  the 
assessee  may  further  claim  that  the  income, 


profits  and  gains  of  the  previous  year  shall 
be  deemed  to  have  been  the  income,  profits 
and  gains  of  the  said  period.  ' 

In  this  case  the  term  "previous  year"  meant 
the  year  ending  December  31, 11)21. 

It  would  appear  then  that  the  aasessees 
could  claim  that  the  income,  profits  and 
gains  of  the  previous  year,  namely, 
Rs.  3,79,403,  should  be  deemed  to  be.  the  in- 
come, profits  and  gains  of  the  period  be- 
tween the  end  of  the.  previous  year  and 
the  discontinuance.  Then  an  assessment 
should  be  made  on  the  basis  of  the  income 
profits  and  gains  of  the  said  period,  and  if 
an  amount  of  tax  had  already  been  paid  in 
respect  of  the  income,  profit  and  gains  of 
the  previous  year,  exceeding  the  amount 
payable  on  the  basis  of  such  assessment,  a 
refund  of  the  difference  was  payable. 

I  understand  that  on  a  proper  construc- 
tion of  these  words  that  the  assessees,  though 
the  Company  had  paid  in  1922-23  income- 
tax  on  the  profits  for  the  year  1921  amount- 
ing to  Rs.  3,79,408,  if  the  Compony  discon- 
tinued its  business  during  the  year  1922-23, 
were    entitled    to    substitute    the  profit  of 
Rs.  1,99,208^1-  the    eleven   months  up  to 
December  1, 1922,  in  place   of  the  profit  of 
Rs.  3,79,408  and  claim  a  refund.    If  that  is 
the  real  meaning  of  the  section,  to  my  mind 
it,  has  been  expressed  in  the  least  intelligi- 
ble way.    I  should  have    thought  it  would 
have  been  simpler  to  say  that  if  a  business 
in  existence  on  April  1, 1922,  is   discontinu- 
ed in  any  particular  year,  and  has  already 
paid  tax  on  the  profits  of  the  previous  year 
it   becomes  en  titled  to  be  assessed  on  the 
profits  for  the  year  in  which  it  is  discon- 
tinued, so  that  if  those  profits  are  less  than 
the  profits  of  the  previous  year,   a  refund  is 
payable.    However,  the  question  before  us 
is  whether   the   assessees  are    entitled    to 
resort  to  s.  25  (3)  and  we  are  not  concerned 
with  the  relief  they  may  be  entitled  to  if 
they  are  so  entitled.    The   assessees  con- 
tend that  because  the  Company  stopped  its 
business,  they  were  entitled  to  relief,  that 
as  the  Company  went  into  liquidation  its 
corporate    powers    ceased,  and    its  assets 
became  distributable  amongst  its  creditors, 
and  lastly  that  if  they  were  not  entitled  to 
relief,    the  benefit  of  s.  25  (3)  of  the  Act 
could  not  be  given  in  any  case. 

All  these  arguments  are  based  on  a  mis- 
apprehension of  the  scheme  of  the  Act. 

By  s.  6  certain  heads  of  income,  profits 
and  gains  shall  be  chargeable  to  income- 
tax,  of  which  'business'  is  one,  Business  is 


[&2I.  0.1923) 


OOtfMISSTOVBft  OP  IttCOtt B-TAX  V.  M*  H,  SANJANA  &  CO, 


519 


defined  by  a.  2  (4),  and  by  s.  2  (2)  an  asses- 
see  is  defined  as  a  person  by  whom  income- 
tax  is  payable.  By  s.  10  (1)  the  tax  shall  be 
payable  by  an  asaessee  under  the  head 
"business1*  in  respect  of  the  profits  or  gains 
of  any  business  carried  on  by  him. 

In  the  case  of  a  Company  by  s.  22  (1)  the 
principal  office  shall  present  to  the  Income- 
Tax  Officer  a  return  of  the  total  income  of 
the  Company  for  the  previous  year,  and 
under  s.  23  the  Income-Tax  Officer  makes 
the  assessment,  and  determines  the  sum 
payable  by  the  assessee. 

By  s.  26  when  any  change  occurs  in  the 
constitution  of  a  firm  or  where  any  person 
has  succeeded  to  any  business,  profession 
or  vocation,  the  assessment  shall  be  made 
on  the  firm  as  constituted  or  on  the  person 
engaged  in  the  business,  profession  or  voca- 
tion as  the  case  may  be,  at  the  time  of  the 
making  of  the  assessment. 

As  then  the  tax  is  chargeable  on  the  pro- 
fits of  a  business,  it  makes  no  difference  if 
there  is  any  change  in  the  person  who  car- 
ries on  the  business  so  long  as  the  business 
is  continued.  There  is  no  necessity  to  go 
beyond  the  facts  of  this  case,  where  it  is 
admitted  that  the  business  was  continued, 
the  management  only  passing  from  the  old 
Company  and  its  liquidators  to  the  new 
Company  when  the  agreement  of  June  20, 
1923,  was  completed.  Exactly  the  same 
question  was  raised  in  Bartlett  v.  Inland 
Revenue  Commissioners  (1).  The  owner  of 
a  business  sold  it  to  a  Company.  Under 
the  provisions  of  8.  z4  sub  s  3  of  the  Fin- 
ance Act,  1907,  he  claimed  that  he  was  only 
chargeable  with  tax  on  the  actual  amount 
made  in  the  year  of  discontinuance  and 
there  was  no  power  to  go  back  on  the  three 
years  average.  Scrutton,  J.,said  (page  693*): 
"The  answer  to  that  appears  to  me  to  be 
very  simple.  The  trade  was  not  discontinu- 
ed in  the  year.  The  trade  was  sold  to  a  Com- 
pany and  continued  during  the  whole  year; 
and  in  my  view,  therefore,  s.  24  of  the  Act  of 
1907  has  no  application  to  this  case/'  I 
would  answer  the  question  1  have  framed 
above  in  the  negative. 

The  assessees  must  pay  the  costs  of  the 
reference. 

Goyajee*  J. — The  statement  of  the 
case  drawn  up  by  the  Commissioner  of 
Income-tax  and  referred  to  this  Court  clear- 
ly sets  out  the  material  facts.  In  the  year 
1919  the  Company,  Messrs.  M.  H.  Sanjana 

,(1)  (1914)  3  K.  B.  686;  ?4  L.  J.  K.  B.  686.        

~*Page  of  (1914)  3  K.  B.  -[Ed.] 


&  Co.  Ltd.,  commenced  business  in  Bombay 
as  merchants,  commission  agents,  contrac- 
tors, suppliers  of  stores,  shipchandler&, 
mechanical  engineers,  etc.  About  the  end 
of  the  year  1922  it  was  resolved  to  take  the 
Company  into  voluntary  liquidation.  Its 
business  was  then  sold  to  another  Company, 
the  Consolidated  Mills  Stores  Co.,  Ltd.  The 
sale  included  buildings  and  lands,  the  lease 
of  the  office  premises,  all  the  stock-in-trade, 
machinery,  plant,  furniture  and  fittings,  the 
goodwill  of  the  business  including  all  trade- 
marks and  the  benefit  of  all  contracts  en- 
tered into  between  the  vendor  Company  and 
various  other  Companies.  The  business  was 
then  continued  by  the  Consolidated  Mill 
Stores  Co.,  Ltd. 

For  the  year  1922*23  M.  H.  Sanjana  & 
Co.,  Ltd.,  were  assessed  to  income-tax  and 
super-tax  on  profits  amounting  to  Rs.  3,79,408 
for  the  calendar  year  1921.  At  the  1923-24: 
assessment  the  Company  (in  voluntary 
liquidation)  submitted  its  accounts  showing 
a  profit  of  Rs.  1,H9,208  from  January  1, 
1922,  up  to  November  30,  1922.  They  now 
claim  that  as  their  business  is  discontinu- 
ed, they  are  entitled  to  substitute  the  profit 
of  Rs.  1,99,208  in  place  of  the  profit  of 
Rs.  3,79,408  on  which  the  tax'  has  been 
levied,  and  ask  for  a  refund  of  the  differ- 
ence. They  rely  upon  the  provisions  of  a. 
25  (J)  of  the  Indian  Income-Tax  Act,  1922, 
which  says:  uWhere  any  business,  profes- 
sion or  vocation  which  was  in  existence  at 
the  commencement  of  this  Act,  and  on 
which  tax  was  at  any  time  charged  under 
the  provisions  of  the  Indian  Income  Tax 
Act,  1918,  is  discontinued,"  retc.  The  sec- 
tion grants  relief  if  the  condition  which  it 
lays  down  is  fulfilled.  The  question  arising 
for  consideration  then  is:  whether  this 
business  which  was  in  existence  on  April  1, 
1922,  has  'been  "discontinued1?  On  the 
facts  of  this  case  it  is  clear  that  when  the 
Company  sold  the  business,  including  the 
goodwill  and  the  benefit  of  all  running  con- 
tracts, to  the  Consolidated  Mills  Stores  Co., 
Ltd.,  the  ownership  of  the  business  was 
changed,  but  the  business  was  not  "discon- 
tinued," The  purchaser  Company  succeed- 
ed to  the  business  and  continued  it — a  case 
which  is  provided  for  by  s.  26.  It  was, 
however,  contended  on  behalf  of  the  asses- 
sees,  that  when  they  sold  the  business,  it 
was  "discontinued"  at  any  rate  so  far  as 
they  were  concerned,  and  they  are,  there- 
f6re,  entitled  to  claim  a  refund  of  the  over- 
.  paid  tax.  But  the  language  of  the  section 


520 


TftlRUMALAt  PILLAI  V.  AUtJNOHELLA  PADATACfil* 


is  clear;  and  the  question  arising  under  it 
is— whether  the  business  was  discontinued; 
and  not — whether  the  business  was  dis- 
continued by  A.  B.  In  this  case  the  trans- 
fer of  ownership  left  the  continuance  of  the 
business  wholly  unaffected.  In  my  opinion, 
therefore,  the  assessees  are  not  entitled  to 
claim  the  refund  which  they  ask  for. 
2,  K,  Answer  accordingly. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEALS  Nos.  1145  OF  1922 

AND 

CIVIL  MISCELLANEOUS  PETITION  No.  1565 

OF  1925. 
April  15,  1925. 

Present: — Mr.  Justice  Phillips. 
THIRUMALAI  PILLAI  AND  OTHERS- 
PLAINTIFFS  Nos.  1,  2,  4  TO  7 — APPELLANTS 
IN  8.  A,  No.  1145  OF  1922— PBTITIONEKS  IK 
C.  M.  P.  No.  1565  OF  1925 

versus 

ARUNACHELLA  PADAYACHI 

AND  OTHERS— DEFENDANTS  Nos.  1  AND  2 

— RESPONDENTS  IN  BOTH. 

Civil  Procedure  Code  (Act  V  of  1908) t  s.  2  (77),  0. 
XXII,  r  10— Legal  representative— Trustee,  whether 
legal  representative  of  preceding  trustee—Death  or 
retirement  of  trustee-*- Addition  of  succeeding  trustee 
as  party  to  suit — Devolution  of  interest — Limitation- - 
Lessor  and  lessee— Lease  for  term  of  years—Deposit 
of  cash  with  lessor  to  be  appropriated  to  last  year's 
rent — Subsequent  conversion  of  cash  into  Government 
pro-notes  by  consent  of  parties— Depreciation  in  value 
of  notes— Loss,  liability  for. 

A  trustee  of  an  institution  is  not  a  legal  re- 
presentative of  his  predecessor-in-office  within  the 
meaniiig  of  s.  2  (11),  C.  P.  C.  [p.  521,  col.  1  ] 

Where  a  trustee  who  is  a  party  to  a  suit  either 
retires  or  dies  and  is  succeeded  in  office  by  another 
by  election  or  otherwise,  there  is  a  devolution  of 
interest  pending  suit  under  0.  XXII,  r.  10,  0.  P.  C., 
and  such  succeeding  trustee  can  be  added  as  party  to 
the  suit  under  the  said  provision  apart  from  any 
question  of  limitation,  [ibid.] 

Sundaresam  Chettiar  v.  Viawanatha  Pandara 
Sannadhi,  72  Ind.  Gas.  103,  45  M.  703;  31  M,  L.  T.  66; 
16  L.  W.  83;  43  M.  L.  J.  147;  (1922)  M.  W.  N.  444; 
(1922)  A.  I.  R.  (M.)402,  Ratnam  Filial  v.  Nataraja 
Desikar,  84  Ind.  Cas.  200;  46  M.  L.  J.  341;  19  L.  W. 
367;  (1921)  M.  W.  N.  361;  (1924)  A.  L  R.  (M.)  615;  34  M. 
L.  T.  31,  relied  on. 

A  lessee  for  a  term  of  5  years  deposited  a  sum  of 
money  equivalent  to  one  year's  rent  with  the  lessor  on 
the  understanding  that  the  amount  would  be  applied 
in  payment  of  the  last  year's  rent.  Soon  after,  by 
consent  of  both  parties,  Government  promissory  notes 
were  purchased  for  the  cash  deposit.  But  by  the  time 
the  lease  terminated,  the  notes  had  considerably 
depreciated  in  value.  On  a  question  arising  as  to 
who  was  to  bear  the  loss  arising  from  the  said 
depreciation  in  value: 


[92  I,  0. 192ft) 


Held,  that  the  cash  deposit  belonged  to  the  lessee 
and  the  conversion  of  cash  into  Government  pro-notes 
had  not,  in  the  absence  of  any  special  agreement,  the 
effect  of  transferring  the  property  in  them  from  the 
lessee  to  the  lessor.  The  property  in  the  notes  being 
the  lessee's,  when  they  depreciated  in'value,  he  ought 
to  bear  the  loss  [p.  522,  cols.  1  &  2.] 

IN  8.  A.  No.  1145  OF  1922. 

Second  appeal  against  a  decree  of  the 
District  Court,  East  Tanjore,  at  Negapatam, 
in  A.  S.  No.  57  of  1*21,  (A  8.  No.  754  of 
1920,  on  the  file  of  the  District  Court  of 
West  Tanjore),  preferred  against  the  decree 
of  the  Court  of  the  District  Munsif, 
Shiyali,  in  O.  S.  No.  1565  of  1925. 
IN  C.  M.P.  No.  1565  of  1925. 

Petition  praying  that  in  the  circum- 
stances stated  in  the  affidavit  filed  herewith, 
the  High  Court  will  be  pleased  to  direct 
the  amendment  of  the  cause  title  in  the 
said  Second  Appeal  No.  1145  of  1922,  by 
omitting  from  the  records  of  the  said 
Second  Appeal  No.  1145  of  1922,  the  names 
of  (1)  A.  ^  -  '  T-  :  '2)  Dewan 

Bahadur    «.   ,  ^      „  -      Chettiar 

and  (3)  O.  Thanikachellam  Chettiar  and 
entering  in  the  record  of  the  said  second 
appeal,  the  names  of  (1)  P.  V.  Nataraja 
Mudaliar,  (2)  P.  T.  Kumaraswamy  Chettiar 
and  (3)  Vavila  Venkateswara  Sastrulu  either 
as  appellants  or  respondents. 

Mr.  S.  T.  Srinivasagopalachari,  for  the 
Appellants. 

Mr.  S.  Muthiah  Mudalidr,  for  the  Respond- 
ents. 

JUDGMENT* — This  is  an  appeal  by 
the  trustees  of  the  Pachayyapas  Charities 
to  recover  rent  from  the  respondents.  The 
appeal  was  filed  by  all  the  nine  trustees, 
but,  since  the  appeal  was  filed,  two  of  the 
appellant-trustees  have  died  and  one  has 
retired.  Of  the  two  trustees  who  died,  one 
died  only  on  21st  March  1915,  and,  there- 
fore, there  is  plenty  of  time  to  bring  in  his 
legal  representative  or  the  person  on  whom 
his  interest  has  devolved,  but  objection  is 
taken  by  the  respondents  that  No.  6  ]Mr. 
Ethiraja  Mudaliar,  having  died  in  1923 
and  No.  5  Sir  P.  T.  Thiagaraja  Chettiar, 
having  retired  on  29th  April  1924,  the  ap- 
plication to  bring  in  the  three  trustees  who 
have  since  been  elected  on  the  Board  is 
out  of  time  and  that,  therefore,  the  appeal 
should  be  dismissed  in  limine.  The  con- 
tention for  the  respondents  is  that  the 
new  trustees  who  have  been  appointed  by 
election  to  fill  the  places  of  those  who 
have  died  or  reiired  are  their  legal  repre- 
sentatives within  the  meaning  of  s.  2, 


[92  I.  0.  1926J  THIRUMALAI  PILLAl  ^  ARUNCHALLA  PADAYAOII. 


521 


ci.  (11)  of  the  0.  P.  0,,  but  in  that  section 
we  find  that  "  legal  representative  "  in- 
cludes "  where  a  party  sues  or  ia  sued  in  a 
representative  character,  the  person  on 
whom  the  estate  devolves  on  the  death  of 
the  party  so  suing  or  sued."  When  Mr. 
Bthiraja  Mudaliar  died,  his  estate  as  trus- 
tee devolved  on  no  one,  unless  it  can  be 
deemed  to  have  devolved  on  the  surviving 
trustees,  who  are  parties  to  this  appeal. 
Certainly  it  cannot  be  said  that  his  estate 
devolved  on  his  death  on  a  person  who 
was  subsequently  elected  to  fill  his  place. 
The  act  of  the  electors  can  certainly  con- 
fer no  retrospective  power  on  the  person 
elected  so  as  to  vest  the  estate  of  the 
deceased  in  him.  So  far  as  No.  5  is  con- 
{ cferned  his  office  became  vacant  by  retire- 
ment and  not  by  death.  On  the  date  of 
his  retirement,  the  person  subsequently 
elected  to  succeed  him  was  certainly  not 
his  legal  representative  within  the  meaning 
'of  s.  2,  cl.  (11),  C.  P.  0.  Consequently 
these  persons,  now  sought  to  be  added  as 
appellants,  do  not  come  within  the  meaning 
of  "  legal  representative."  For  the  appel- 
lants, it  is  contended  that  O.  XXII,  r.  10 
is  applicable  and  I  see  no  reason  why  it 
should  not  be  so.  The  eatate  of  the  deceas- 
1  ed  trustees  has  devolved  on  these  persons 
by  the  act  of  the  electors  done  in  pur- 
suance of  the  scheme  framed  by  this  Court 
and  it  appears  to  me  that  it  is  a  case  of 
devolution  of  interest  during  the  pendency 
of  a  suit.  A  similar  view  was  held  by  a 
Bench  of  this  Court  in  Sundaresam  Chettiar 
v.  Viswanatha  Pandara  Sannadhi  (I)  and 
by  another  Judge  in  Ratnam  Pillai  v. 
Nataraja  Desikar  (2).  I  see  no  reason  to 
differ  from  the  view  and  hold  that  these 
persons  can  be  added  as  parties  under 
0.  XXII,  r.  10. 

In  these  circumstances,  it  is  unnecessary 
to  discuss  the  further  question  whether  the 
trustees  who  have  all  along  been  on  record 
can  be  allowed  to  continue  the  appeal 
on  behalf  of  the  whole  body  of  trustees 
without  adding  the  trustees  subsequently 
elected. 

Coming  to  the  merits  of  the  appeal,  two 
points  are  argued.  The  appellants  claim 

(1)  72  Lid.  Gas.  103;  45  M.  703;  31  M.  L.  T.  66;  16  L. 
W.  83;  43  M.  L.  J.  147;  (1922)  M.  W.  N.  444;  (1922)  A.  1. 
K.  (BL)  402. 

(2)  84  Ind.  Gas.  200;  46  M.    L.  J.  341;  19  L.  W.  367; 
(1924)  M.  W,  N.  361;  (1924;  A,  I.  R.  (M.)  615;  34  M.  L. 
T.  31, 


firstly  the  loss  which  they  have  suffered 
owing  to  the  depreciation  of  Government  pro- 
missory-notes deposited  by  the  defendants 
in  respect  of  the  lease  which  they  obtained 
from  the  appellants.  The  second  question 
relates  to  the  amount  of  water-rates  payable 
by  the  defendants.  As  regards  the  second 
point  I  may  say  that,  on  a  construction  of 
the  lease,  defendants  are  liable  to  pay  water- 
rate  for  water  taken  to  punja  lands,  for 
water  taken  for  second  crop  on  narija  lands; 
and  for  water  taken  to  poramboke.  The 
learned  Judge  has  only  considered  one  of 
the  provisions  of  the  lease  which  relates  to 
pommboke,  but  does  not  appear  to  have 
considered  the  earlier  clauses  at  all,  and 
the  learned  Judge's  judgment  is  not  sup- 
ported by  the  respondent's  Vakil  who 
admits  that  the  construction  put  upon  the 
document  by  him  is  incorrect.  In  this 
respect,  the  Munsif  s  decree  must  be  restor- 
ed, 

The  more  important  point  is  the  question 
of  depreciation  of  Government  promissory- 
notes.    When  the  respondents  obtained  the 
lease,  they    deposited  a  sum  of  Ks.  5,300 
with  the  appellants.   This  amount  was  equi- 
valent to  one  year's  rent  of  the  lands,   the 
lease  being  for  five  years.    Soon  after  the 
deposit  waq  made,  the  appellants  wrote   to 
the  1st  defendant  and   suggested   that  the 
money  should    be  converted  into  Govern- 
ment promissory-notes.    Defendant  agreed 
to  this  course  in  his  letter  of    30th     April 
1913  saying   "Accordingly  I  am  willing  to 
purchase    and     keep    Government    bonds 
bearing  3i  per  cent,  per  annum. "      Subse- 
quently, the  actual  lease  deed  was  executed 
on  26th  May  1914  and  that  deed  contains 
the  following  recital,  "As  the  understanding 
is  that  Government  promissory -notes  should 
be  purchased  and  kept  for  the  said  oash 
deposit,  etc.11    So  far,  the  documents  show 
clearly   that  the    defendant  agreed   to  the 
purchase  of  Government  promissory  notes 
on  his  behalf  as  the  equivalent  of  the  cash 
deposit  '  made   by  him,  and  the  method  in 
which  that  deposit  was  to  be    applied  is 
mentioned  in  the  lease  deed,  Ex.  B.     The 
question  really  at  issue  is  whether   these 
promissory  notes     which  have  depreciated 
very  considerably  by  the  end  of  the  lease 
when  the  deposit  had  to  be  applied  in  pay- 
ment of  the  last  year's  rent,    belonged  to 
the  appellants  or  respondents.     It  is  not 
disputed  that  the  cash  deposit  belonged  to 
the  respondent  and  it  is  on  record  that  the 
respondent   agreed    to   that    cash  deposit 


522 


OAKGA  DHAR-BATJ  NATH  t>.  B,  B,  &  0.  I*  K. 


[92 1.0. 1926} 


being  converted  into  Government  promis- 
sory notes.     It   is   difficult,    therefore,  to 
understand  the  contention  that  this  con- 
version of  cash  into  notes  had  also  the  effect 
of  transferring  the  property  in  them  from 
the  respondent  to  the  appellant  unless  there 
was  some   contemporaneous  agreement  to 
that  effect.    The  learned  Judge  does    not 
appear  to  have  -considered  at  all  the  ques- 
tion of  the   property  in  those  promissory- 
notes  and  has  based  his  decision  on  certain 
findings  as  to  what  the  defendants  under- 
stood.   I  may  say  at  once  that  in  several 
cases,  apart  from   the    condition  as  to  pay- 
ment of  water-rate,  the  learned  Judge  has 
obviously  misconstrued  the  documents.    In 
one  case,  namely,  Ex.  9,  he  apparently  has 
only  read  the    document  perfunctorily,  for 
he  gives  its  contents  accurately  as  mention- 
ed on  the  docket,  but  when  the    document 
itself  is  read  it  appears   that  the  docket  is 
not  accurate  and  it  would  appear  that  the 
learned  Judge  has  relied   solely  upon  the 
docket  without  reading  the   actual   docu- 
ment.   That  by  itself  would  be  sufficient  to 
vitiate  his  judgment  but  it  is  also  clear 
that  he  has    not  applied  his  mind  in  the 
right  direction.    The  learned  Judge  starts 
by  thinking  it  a  most  extraordinary  thing, 
that,  when  Government    promissory  notes 
stood  at  about  98,  the  appellants  should 
have  purchased  notes  of  the  face  value  of 
Rs.  5,50U  instead  of  notes  of  the  face  value  of 
Rs.  5,300   considering  the  cash  already  in 
their  hands  was  sufficient  to  purchase  notes 
to  the  extent  of  nearly  Rs,  5,500  (plus  in- 
terest accrued  to    date)  in    view    as    they 
said,  to  secure  against  loss  by  depreciation. 
If  there  were  depreciation  below    the  price 
at  which  they  purchased  and  notes  only  of 
Rs.  fc,300  were  purchased,    the  appellants 
might  be  put  to  great  loss  as    the  security 
would  be  inadequate.    As  it  is,    even  after 
taking  this    precaution,  the  value  of    the 
notes  has  fallen  far  below  the  amount  due 
by  the  defendants.    There  was,  therefore, 
nothingsurprising  in  theappellants  purchas- 
ing notes  of  the  value   of  Rs.  5,500.     The 
main  ground  for  finding  that  defendants 
were  not  liable  for  the  depreciation  is  that 
there  was  no  understanding  on  their  part 
that  they  would  be  liable  for  any  deprecia- 
tion in  value,  but  when  a  man  owes  pro- 
missory-notes, he  must  know  that,  if  they 
depreciate   in  value,  he  will  be  liable  for 
such  depreciation  and  not  a  third  party, 
unless  there  is  an  agreement  to  the  con- 
trary.   His  misunderstanding  on  this  point, 


if  there  was  any,  would  be  merely  due  to 
ignorance  of  ordinary  business  principles  of 
which  any  man  should  be  deemed  -to  have 
knowledge.  Every  man  knows  that  he  is 
responsible  for  the  condition  of  his  own 
property  and  when  that  changes,  the  res- 
ponsibility is  his  and  not  that  of  a  third 
party.  Whether  the  defendants  really  un- 
derstood their  position  or  not  is  immaterial 
in  this  case.  The  property  in  the  notes  was 
theirs  and,  therefore,  when  the  notes  de- 
preciated they  must  bear  the  loss. 

An  attempt  has  been  made  to  show  that 
the  property  in  the  notes  was  not  defend- 
ants1 and  reliance  is  placed  on  a  letter  by  the 
Bank  to  the  trustees.  How  that  could  effect 
a  transfer  of  property,  I  do  not  understand. 
The  contention  is  quite  .worthies?.  The 
defendants  accepted  the  change  in  the 
nature  of  their  property  and  had  never  re- 
pudiated it  any  time.  They  are,  therefore, 
liable  for  this  depreciation.  The  appellants 
would  have  been  entitled  to  realise  the 
security  in  their  hands,  at  the  end  of  the 
lease,  but,  as  a  matter  of  fact,  they  merely 
credited  the  market  value  of  the  notes  at 
that  date  and  asked  the  defendants  to  pay 
the  balance,  in  fact,  they  even  offered  to 
return  the  notes  if  the  defendants  would 
pay  the  proper  amount  in  cash.  The  Judge 
was,  therefore,  quite  wrong  in  saying  that 
the  defendants  were  never  consulted  before 
the  Government  promissory-notes  were  sold. 
This  is  yet  another  question  of  fact  in 
which  the  Judge  is  completely  wrong. 
Considering  all  these  circumstances,  the 
judgment  appears  to  be  most  unsatis- 
factory. 

The  decree  of  the  lower  Appellate  Court 
must  be  set  aside  and  the  decree  of  the 
District  Munsif  restored  with  costs  both 
here  and  in  the  lower  Appellate  Court. 

v.  N.  v.  Appeal  allowed. 


ALLAHABAD  HIGH  COURT, 

CIVIL  REVISION  No.  121  OP  1925. 

Decembers,  1925. 

Present: — Mr.  Justice  Daniels. 

GANGA  DHAR-BAIJ  NATH— OPPOSITE 

PAHTY— APPLICANTS 

versus 

BOMBAY-BARODA  AND  CENTRAL 

INDIA  RAILWAY- APPLICANT— 

RESPONDENT. 
Provincial  Snail  Cause  Courts  4ct  (IX  of  18$?), 


fl»  I.  0. 1926] 


SHIVA  AITBALA  V.  RANOAFPATA  AITRALA. 


523 


9.  1? — Ex  parte  decree,  application  to  aet  aside— 
Tender  of  decretal  amount— Deposit  made  after  expiry 
of  limitation — Substantial  compliance. 

An  application  to  set  aside  an  ex  parte  decree  was 
presented  on  the  last  day  oi  limitation  at  about  3 
p.  M.  It  was  accompanied  by  a  tender  of  the  amount 
payable  under  s.  17  of  the  Provincial  Small  Cause 
Courts  Act,  but  ,as  no  payments  were  passed  by  the 
treasury  after  12  noon,  the  money  was  not  actually 
deposited  in  the  treasury  till  the  following  day  : 

Held,  that  there  was  a  substantial  compliance  with 
the  provisions  of  s.  17  of  the  Provincial  Small  Cause 
Courts  Act, 

Civil  revision  from  an  order  of  the  Addi- 
tional Judge,  Small  Cause    Court,    Cawn- 
pore,  dated  the  llth  May  1925. 
Dr.  N.  C.  Vaish,  for  the  Applicants. 
JUDGMENT. — This  is  a  revision  under 
s,  25  of  the  Provincial  Small  Cause  Courts 
Act,    The  question  raised  is  whether  there 
was  a  sufficient  compliance  with  s.   17  t>f 
that  Act  in  presenting  an  application  to  set 
aside  an  ex  parte  decree.    The    application 
was  presented  on  the  last  day  of  limitation  at 
about  3  o'clock.    It  would  appear  from  the 
judgment  of  the  Court    below  that  it  was 
accompanied  by  a  tender  of  the  amount  pay- 
able under  s.   17,  but  as  no  payments  are 
passed  by  the  treasury  after  12  o'clock  in  the 
day  the  tender    was  not  returned  to  the 
applicant  or  the  money  actually  deposited  in 
the  treasury  till  the  following  day.    1  agree 
with  the  Court  below  that  this  was  a  sub- 
stantial compliance  with  the  provisions  of 
s.  17.  The  applicant  did  every    thing  that 
wa"9  possible  for  him  to  deposit  the  money 
at  the  time  of  presenting  the  application, 
and  it   was  only  owing  to  the  particular 
rules  in  force  of  the  local  treasury  that  it 
could  not  be  deposited  till  next  day.    The 
principle  of  the  ruling  [Munna  Lai  v.  Radha 
Kishan  (1)]  relied  on  by  the  Court  below  is 
applicable.    I  accordingly  dismiss  the  re- 
vision but  without  costs  as  the  respondent 
is  unrepresented.  . 

z  K.  Revision  dismissed. 

(I)  30  Ind.  Oas.llSB^lSJA.  L.  J.  793;  37  A.  591. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  288  OF  1923. 

July  31, 1922. 

Present :—  Mr.  Justice  f  Jackson. 
8HIVA  A1THALA  -DEFENDANT- 
APPELLANT 

versus 

RANGAPPAYA  AITHALA— PLAINTIFF- 
RBSPONDBNT. 

Hindu  Law— Widow  of  divided  member— Funeral 


Under  the  Hindu  Law,  where  a  widow  of  a  divided 
member  of  a  Hindu  family  dies,  without  having  any 
self-acquired  'property  of  her  husband,  the  relations 
responsible  for  her  maintenance,  and  not  necessarily 
those  who  perform  the  ceremony,  are  liable  to  pay  for 
her  funeral  expenses,  in  like  proportion  as  the  main- 
tenance itself. 

Second  appeal  against  a    decree  of  the 
Court  of  the  Subordinate  Judge  of  South 
Kanara,  in  A.  S.  Nos.  34  and  35  of  1922,  pre- 
ferred against  a  decree   of    the  Court  of 
the  Principal  District  Munsif,  Mangalore, 
in  0.  S.  No  9S  of  1920. 
Mr.  B.  Sitaramarao,  for  the  Appellant. 
Mr.  K.  Y.  Adiqa,  for  the  Respondent 
JUDGMENT.— The  short  point  in  this 
second  appeal  is  who  is  to  defray  the  funeral 
expenses    when     a   widow    dies   being    a 
member  of  a  divided  Hindu  family,  and  not 
being    in  enjoyment  of  any  self-acquired 
property  of  her  husband.    The   widow  was 
being  maintained  by  her  husband's  nephew 
and  great  nephew  each  of  whom  contribut- 
ed half.    The  lower  Courts  have  ruled  that 
they  should  pay  for  her  funeral  in  like  pro- 
portion and  this  seems  l^irirul  an«l  equitable. 
If  the  family  were  not  divided  they  would 
pay  at  this  rate.  There  is  no  direct  authority 
9  on  the    point  but  Sir  E.  J.  Trevelyan  has 
deduced  a  similar  rule  from  such  authority 
as  exists.  See  Hindu  Law,  2nd  Edition,  page 
88.  I  see  no  force  in  the  contention  that  the 
relation  who    performs  the  ceremony  under 
the  Hindu  Law  must  necessarily  pay  for  it. 
In  a  joint  family  the  son  does  not  pay  for  th« 
funeral  of  his  father.  Accordingly  I  confirm 
the  decree  of  the  lower  Appellate  Court  and 
dismiss  this  appeal  with  costs. 

The  respondent  files  memorandum  of 
objections  and  wishes  an  issue  to  be  tried 
which  wa<*  not  previously  framed  and  finds 
no  place  in  the  pleadings,  whether  under 
the  partition  of  1875  defendant  was  bound 
to  pay  the  amount  claimed  irrespective  of 
the  receipts  upon  which  until  now  his  claim 
has  been  based.  I  consider  that  this  new 
point  cannot  be  raised  at  this  late  stage. 
The  "memorandum  of  objections  is  dismissed 
with  costs, 
v.  N.  v.  Both  Appeal  and  Memorandum 


N.  H. 


of  objections  dismissed. 


524 


tTNNAMALAI  AMMAL  V.  AQBOY  CHBTTY. 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  No.  268  OF  1922. 

August  24,  1925. 

Present:— Mr.  Justice   Venkatasubba 
Rao  and  Mr.  Justice  Madhavan  Nair. 
UNNAMALAI  AMMAL  AND  ANOTHER- 
DEFENDANTS  Nos.  1  AND  10— APPELLANTS 

versus 

ABBOT  CHETTY  AND  ANOTHER— 
PLAINTIFFS — RESPONDENT  s. 

Hindu  Law—Joint  family — Alienation  by  manag- 
ing member  for  proper  purposes— Recital  that  proper- 
ties were  self-acquired,  effect  of. 

The  managing  member  of  a  joint  Hindu  family 
executed  a  mortgage  of  certain  family  properties  for 
purposes  binding  on  the  family  but  recited  in  the 
mortgage-deed  that  the  mortgaged  properties  were 
hia  absolute  properties.  In  a  suit  on  the  mortgage  . 

// eW,  that  since  the  mortgage  purported  to  be  of 
the  entire  interest  in  the  properties  and  the  mort- 
gagor had  the  legal  capacity  to  execute  a  mortgage  of 
the  entire  interest  binding  on  the  family,  the  interest 
mortgaged  was  of  the  entirety  which  the  executant 
was  capable  of  conveying  and  not  merely  of  his  share 
in  the  properties  and  the  recital  that  the  executant 
was  the  owner  must  be  treated  as  surplusage,  [p,  525, 
col,  1 1 

Sankaranarayanam  Pillai  v.  Rajamani,  83  Ind, 
Gas.  196;  47  M.  462;  46  M.  L  J  314;  34  M.  L  T.  152; 
(1924)  A.  I  R.  (M  )  550;  20  L.  W  357,  Sabapathy 
Chetty  v,  Ponnumwmy  Chetty,  28  Ind.  Gas.  365,  fol- 
lowed. 

Balwant  Singh  v.  Rev.  Rockwell  Clancy,  14  Ind.  Gas. " 
629;  34  A.  296;  (1912)  M.  W  N    462;  11  M    L   T.  344; 
9  A.  L.  J.  509,  15  G.  L.  J.  475;  16  C    W.  N.  577;  23  M 
L  .7  18,14  Bom.  L.  R.  422;  39  T.  A.    109  (P.  C  ),  dis- 
tinguished. 

Appeal  against  a  decree  of  the  Court 
of  the  District  Judge,  South  Arcot,  dated 
the  30th  January  1922,  in  0.  8.  No.  11  of 


I.  0,  iS>20] 


Mr.  S.  T.  Srinivasagopalachariar,  for  the 
Appellants. 

Messrs.  A.  Krishnaswamy  Aiyar  and  K. 
R.  Kama  Aiyar t  fcr  the  Respondents. 

JUDGMENT.-This  suit  has  been 
brought  to  enforce  three  mortgages  evi- 
denced by  Exs.  A,  B  and  D.  Audi  and 
Ramaswami  were  father  and  son.  A  and  B 
were  executed  by  Ramaswami  and  D  was 
executed  after  Ramaswami's  death  by  Audi 
and  Ramaswami's  widows  the  first  defend- 
ant and  another.  Subsequent  to  the  ex- 
ecution of  these  mortgages,  the  first  defend- 
ant obtained  a  decree  for  maintenance 
against  Audi  and  in  execution  of  it  she 
and  her  father  the  10th  defendant  became 
the  purchasers  of  the  properties  which  had 
been  previously  mortgaged. 

In  regard  to  the  first  two  deeds,  the 
question  is,  did  the  interest  of  Audi  pass 
to  the  plaintiffs,  the  mortgagees.  They 
were  executed  by  Ramaswami,  the  son,  but 


tha  lower  Court  has  found,  [ai\d  we  agree 
with  the  finding,  that  he  was  the  manager 
of  the  family.  As  regards  the  question 
whether  the  monies  were  borrowed  for 
family  purposes,  the  learned  Judge  relying 
mainly  on  oral  evidence  and  probabilities 
has  come  to  the  conclusion  that  they  wei*e 
not  so  borrowed.  He  however  has  failed 
to  give  effect  to  the  admission  contained 
in  the  later  document  Ex,  D.  It  is  very 
clearly  stated  in  it  that  the  monies  under 
A  and  B  were  borrowed  by  Ramaswami 
for  purposes  binding  on  the  family  and  as 
we  have  said  it  was  executed  not  only  by 
Audi  but  also  by  the  1st  defendant.  No 
reason  has  been  shown  why  this  admission 
should  not  be  acted  on.  It  must  be  remem- 
bered that  evidence  in  the  suit  was  given 
long  after  the  transaction,  whereas  the 
interval  of  time  between  Exs.  A  and  B  oh 
the  one  hand  and  D'on  the  other  was  only 
four  years.  The  lower  Court  has  however 
come  to  the  conclusion  that  A  and  B  are 
binding  upon  the  share  of  Audi  but  for  a 
different  reason.  It  has  held  that  by  Ex. 
D,  Audi  ratified  the  mortgages  A  and  B. 
This  view  may  be  open  to  question  but  we 
agree  with  the  conclusion  of  the  lower 
Court. 

Next  we  have  to  deal  with  Ex.  D.  It  was 
executed  shortly  after  the  death  of  Rama- 
swami. The  consideration,  namely,  Rs.  4,000 
was  made  up  thus  ;— - 


(1)  Balance  of  interest    due 

under  Exs.  A  and  B  ... 

(2)  Balance    due    by  Rama- 
swami   for    goods    sup- 
plied 

3)  Cost  of  stamp  for  Ex.  D 

4)  Amount     received     in 
cash 

TOTAL 


Rs. 

382 


130 
20 

3,468 
4,000 


The  plaintiffs  admitted  that  the  fourth 
item  was  not  due  as  they  had  not  paid  it 
and  so  no  question  arises  in  regard  to  it. 
Regarding  the  other  three  items,  the  Court 
has  held  against  the  plaintiff.  This  find- 
ing cannot  be  supported.  There  is  a  clear 
admission  of  Audi  (Ex.  E)  which  the  lower 
Court  has  somehow  overlooked.  According 
to  that,  all  the  sums  excepting  the  last 
were  received  by  the  executants.  The  first 
item  of  D  is  the  balance  of  interest  due 
under  A  and  B.  This  item  having  been 


[92  L  0.19^6] 

disallowed,  the  learned  Judge  directed  that 
interest  upon  A  and  B  should  be  calcul- 
ated as  if  credit  for  interest  in  D  had  not 
been  given,  As  we  are  holding  that  the 
first  item  in  D  is  due,  it  will  not  be  neces- 
sary to  adopt  this  course.  In  calculating 
interest  under  A  and  B  credit  must  be  given 
for  the  amount  of  interest  included  in  D. 
As  regards  D,  our  conclusion  is,  that  the 
first  three  sums  are  due  and  they  will  carry 
interest  at  the  rate  provided  in  the  docu- 
ment. 

There  remains  lastly  the  question  of  law 
raised  by  Mr.  Srinivasagopalachari,  the 
learned  Counsel  for  the  appellants.  He  has 
contended  that  in  Exs.  A  and  B  Rama- 
swami  described  the  properties  as  abso- 
lutely belonging  to  him  but  as  a  fact  he 
was- entitled  only  to  a  half  share,  the  mort- 
gages must  operate  only  on  that  share.  We 
cannot  accept  this  contention.  The  pro- 
perties that  were  mortgaged  were  the  en- 
tire properties  and  not  Ramaswami's  share 
in  them.  The  description  given  shows 
that  it  was  the  entire  property  that  was 
intended  to  be  mortgaged.  The  recital  that 
the  executant  was  the  owner  may  be  treated 
as  surplusage.  Not  only  did  he  pur- 
port to  mortgage  the  entire  property,  but 
on  our  finding  he  possess  3d  the  legal  capa- 
city to  do  so.  As  the  manager  of  the  family 
he  was  competent  to  enter  into  a  transac- 
tion binding  oh  the  whole  property.  There 
were  thus  three  elements  present  first,  he 
purported  to  mortgage  the  whole  property, 
secondly,  he  was  legally  competent  to  do 
so  and  thirdly,  there  is*nothing  in  the  docu- 
ment to  repel  the  natural  inference  that 
what  was  intended  to  be  conveyed  was  the 
whole  property.  Sankaranarayanam  Pillai 
v.  Rajamani  (1)  and  Sabapathy  Chetty  v. 
Ponnusawmy  Chetty  (2)  are  clear  authorities 
for  the  position  that  in  the  circumstances 
the  interest  conveyed  should  be  held  to  be 
that  which  the  executant  was  capable  of 
conveying.  Balwant  Singh  v.  Rev.  Rockwell 
Clancy  (3)  strongly  relied  on  by  the  learn- 
ed Counsel  was  distinguished  in  those 
two  cases,  and  we  adopt  the  observations 
on  this  matter  in  the  judgment  in*  those 
cases.  We  may  observe  that  Sabapathy 

(1)  ^83  Ind.  Cas.  196;  47  M,  462;  46  M.  L.  J.  314;  34 
M.  L.  T.  152;  (1924)  A.  I.  R.  (M.)  550;  20  L,  W. 
357. 

(2)  28  Ind.  Gas.  365. 

<3)  14  Ind.  Gas.  629;  34  A.  296;  (1912)  M.  W.  N.  462; 
11  M.  L,  T.  344;  9  A.  L.  J.  509;  15  G.  L.  J.  475;  16  0. 
W.  N.  577;  23  M.  L.  J.  18;  H  Bom,  L,  R.  422;  39  L  A. 
109  (P,  0,). 


tn  re  DISAMBAR.  525 

Chetty  v.  Ponnusawmy  Chetty  (2)  is  almost 
on  all  fours  with  the  present. 

The  decree  of  the  lower  Court  is  modified 
and  the  following  decree  is  substituted. 
There  will  be  a  mortgage  decree  for  the 
amounts  due  under  A  and  B.  There  will 
similarly  be  a  mortgage  decree  for  the 
amount  due  under  D.  The  plaintiffs  will 
first  bring  to  sale  the  properties  in  A  and 
B  for  the  amounts  due  under  them.  If 
after  satisfaction  of  those  mortgages  there 
is  any  balance,  that  will  be  applied  towards 
the  debt  under  U.  The  properties  men- 
tioned in  D  will  be  sold  only  in  the 
event  of  any  balance  remaining  even  after 
the  monies  have  been  so  applied. 

The  appellants  will  pay  the  respondents 
the  costs  of  the  appeal.  There  will  be  no 
order  as  to  costs  in  the  memorandum  of 
objections. 

v.  N.  v. 

z.  K,  Decree  modified. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  REVISION  No.  391  OF  1925. 

November  24,  1925. 
Present:— Mr.  Hallifax,  A.  J.  C. 
In  re  DIGAMBAR— APPLICANT. 

Court  Fees  Act  (VII  of  1870),  Sch  I,  Art.  7J— 
Succession  certificate— Provident  fund,  whether  exempt 
from  Court-fees. 

Money  standing  to  the  credit  of  a  deceased  person 
in  a  Railway  Provident  Fund  pa&ses  to  hia  nominee 
and  does  not  form  what  can  properly  be  called  an 
asset  of  the  estate  of  the  deceased.  It  is,  therefore, 
exempt  from  the  Court-fees  payable  for  a  Succession 
Certilicate  under  Art.  12,  Sch.  I,  of  the  Court  Feea  Act. 

Application  for  revision  of  an  order  of 
the  Additional  District  Judge,  Bilaspur, 
dated  the  12th  November  1925. 

Mr.  G.  R.  Deo,  for  the  Applicant. 

JUDGMENT.— Mr.  G.  R.  Deo  has  been 
heard  for  the  applicant.  It  appears  from 
Bengal  He  venue  Circular  No.  4  cf  January 
1922,  that  the  matter  of  the  liability  to 
duty  of  a  sum  standing  to  the  credit  of  a 
deceased  person  in  a  Railway  Provident 
Fund  was  referred  by  the  Board  of  Revenue 
of  Bengal  to  the  Advocate- General  and 
the  Board  agreed  with  him  in  holding  that 
Provident  Fund  money  is  exempt  from 
duty  and  that  the  Administrator  has  no- 
thing to  do  with  this  fund,  which  passes  to 
the  nominee  even  if  there  is  no  Adminia- 


626 


11SHAN  V.  iltWIOIPAt  COMMITTEE. 


trator,  it  does  not  form  what  can  properly 
be  called  an  asset  of  the  estate.  In 
this  view  I  concur.  It  has,  however,  been 
brought  to  my  notice  in  a  previous  case 
that  the  Bengal  .Nagpur  Railway  Campany 
perhaps  for  its  own  protection,  ordinarily 
refuses  to  pay  this  money  without  Letters 
of  Administration.  The  amount  will,  there- 
fore, be  mentioned  among  the  assets,  but 
no  Court  fee  will  be  recovered  on  it.  The 
order  that  a  Court- fee  is  to  be  paid  is  set 
aside.  The  proceedings  will  continue. 
z.  K.  Order  set  aside. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  1148  OF  1923. 

September  30,  1925. 
Present: — Mr.  Justice  Devadoss. 
PERIA  NAMBI  SRINIVASACHARIAR 
— PLAINTIFF  No.  1 — PETITIONER 

versus 

KUNA  RAMA8AMY  NAICKER  AND  OTHERS 

— DEFENDANTS  AND  PLAINTIFFS  Nos.  2 10  3 

—RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  !)3,  suit 
under— Damages  for  misconduct  of  trustee. 

Although  in  a  suit  under  s.  92,  C.  P.  0.,  a  decree 
may  be  passed  against  a  trustee  in  office  to  account 
for  the  income  of  the  property  in  his  possession,  a 
claim  for  a  specific  sum  in  damages  on  account  of 
loss  to  the  trust  by  the  misconduct  of  the  trustee 
is  not  one  of  the  reliefs  falling  within  the  scope  of 
the  section. 

Petition,  under  s.  115  of  Act  V  of  1908  and 
s.  107  of  the  Government  of  India  Act,  pray- 
ing the  High  Court  to  revise  an  order, 
dated  the  12th  March  1923,  of  the  Court  of 
the  Subordinate  Judge,  Dindigul,  in  0. 
8.  No.  74  of  1920. 

Mr.  K.  Rajah  Iyer,  for  the  Petitioner. 
Mr.  M.  Patanjali  Sastri,  for  the  Respond- 
ents. 

JUDGMENT.— This  is  an  application 
to  revise  the  order  of  the  Subordinate  Judge 
of  Dindigul  directing  payment  of  Court- fee 
on  the  amount  mentioned  in  the  plaint 
as  damages  on  the  ground  that  the  proper 
Court- fee  was  not  paid.  The  first  plaintiff 
has  preferred  this  petition, 

The  contention  of  Mr.  Rajah  Iyer,  for  the 
petitioner,  is  that  the  order  of  the  Subordi- 
nate Judge  was  without  jurisdiction  in- 
asmuch as  his  client  was  entitled  to  ask  in 
a  scheme  suit  for  an  account  -  against  the 
trustee.  No  doubt  in  a  scheme  suit  a  decree 
may  be  passed  against  the  trustee  in  office 


[921.0.1926] 

to  account  for  the  income  of  the  property 
which  was  under  his  management.  But 
in  this  case  what  the  plaintiff  has  done  is 
to  ask  for  a  specific  sum  to  be  paid  by  the 
defendant  as  damages  for  the  loss  caused 
to  the  said  devasthanam  by  the  defendants1 
misconduct  Claiming  damages  on  account 
of  misconduct  is  not  one  of  the  reliefs 
under  s.  92,  0.  P.  C. 

If  the  plaintiffs  wanted  the  defendant  to 
account  for  the  income  of  the  institution  of 
which  the  said  defendant  was  the  manager, 
he  should  have  been  asked  to  submit  an 
account  relating  to  his  management.  Prayer 
(6)  of  para.  II  of  the  plaint  does  ask  for  an 
account  of  the  management.  But  prayer  (c) 
wants  the  defendant  to  pay  Re,  53,000  and 
odd  as  damages  for  the  losses  caused  to  the 
devasthanam  during  his  management.  As 
this  is  made  on  a  different  footing  from  the 
ground  of  accountability  of  a  trustee 
for  the  income  of  the  property  which  was 
under  his  management,  I  think  the  order 
of  the  learned  Subordinate  Judge  is  right 
and  I  dismiss  the  civil  revision  petition 
with  costs. 

It  is  open  to  the  plaintiffs  to  file  another 
suit  after  obtaining  the  consent  of  the 
Advocate- General  for  such  reliefs  as  they 
deem  proper. 


V.  N.  V. 


Petition  dismissed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  2017  OF  1924. 

January  23,  1925. 

Present: — Mr.  Justice  Campbell. 

Musammat  AISHAN — PLAINTIFF — 

APPELLANT 

versus 

THE  MUNICIPAL  COMMITTEE, 

LAHORE,  THROUGH  THE  SECRETARY— 

DRFENDANT-T-RESPONDENT. 

Registration  Act  (XVI  of  1908),  s.  17  (1)  (d)— tease 
reserving  yearly  rent. 

A  mere  recital  of  an  annual  rate  of  rent  in  a  lease 
does  n*t  constitute  it  a  lease  reserving  a  yearly  rent 
within  the  meaning  of  s.  17  (1)  (d)  of  the  Registration 
Act.  [p.  527,  col.  1,] 

Muhammad  Mosam  Khan  v.  Bakhtawar,  70  P.  R, 
1895  and  Kanwar  Ranzor  Singh  v.  Chippal,  37  P.  R. 
1900;  P.  L,  R.  1900  p,  303,  followed. 

Second  appeal  from  a  decree  of  the 
District  Judge,  Lahore,  dated  the  16th  April 
1924,  reversing  that  of  the  Munsif,  First 
Class,  Lahore,  dated  the  27th  July  1922, 


[92 1.  0. 1926] 

Mr.  G.  S.  Salariya,  for  the  Appellant. 

Lala  Madan  Gopal,  for  the  Responden  t 

JUDGMENT.— The  question  before 
the  lower  Appellate  Court  was  whether  a 
certain  plot  of  land  was  the  property  of 
the  plaintiff  or  of.  the  defendant,  and  the 
learned.  District  Judge  held  largely  on  the 
strength  of  a  certain  document  that  it  was 
the  property  of  the  defendant. 

In  second  appeal  for  the  first  time  the  ob- 
jection has  been  raised  that  the  document 
is  compiilsorily  registrable  as  a  lease  reserv- 
ing a  yearly  rent,  and  without  registration 
is  not  admissible  in  evidence  to  affect  the 
property  to  which  it  refers.  I  have  examin- 
ed the  document.  If  it  is  a  lease  it  is 
determinate  at  any  time  at  the  will  of  the 
landlord,  and  it  has  been  held  more  than 
once  that  the  mere  recital  of  an  annual 
rate  of  rent  in  such  a  lease  does  not  con- 
stitute it  a  lease  reserving  a  yearly  rent 
within  the  meaning  of  s.  17  (1)  (d)  of  the 
Registration  Act,  vide  Muhammad  Mosam 
Khan  v.  Bakhtawar  (I)  and  Kanwar  Ranzor 
Singh  v.  Chippal  (2). 

A  second  contention  has  boen  put  forward 
that  the  document  has  not  been  proved  to 
have  been  executed  by  the  ostensible  execu- 
tant N$wab,  but  the  finding  of  the  learned 
District  Judge  to  that  effect  is  one  of  fact 
and  the  suggestion  that  it  is  based  on  no 
evidence  at  all  has  no  force.  I  dismiss  the 
appeal  with  costs. 

N.  H/  Appeal  dismissed. 

(1)  70  P.  R.  1895. 

(2)  37  P.  K,  1900;  P.  L.  Rv  1900  p.  303. 


tfARAtAK  t>ATKAR  V.  JIVAK01RI  OHAMBLGIRI. 


BOMBAY  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No,  83  OF  1924. 

August  17, 1925, 
Present: — Sir  Norman  Macleod,  KT.,  Chief 

Justice,  and  Mr.  Justice  Ooyajee. 

GAJANAN  NARAYAN  PATKAR— 

DEFENDANT— APPBLLANT 

versus 

JIVANGIRI  CHAMELGIRI-PLAIKTIFF 

— RESPONDENT. 

Regulation  Act  (XV I  of  1908),  s.  17— Transfer  of 
Property  &ct  (IV  of  IBSt),  s.  ty—Sdh-faed,— Agree- 
ment to  re-convey— Registration,  whether  necessary. 

Where  a  registered  sale-deea  is  followed  by  an 
agreement  to  re-convey,  and  the  latter  can  be  treated 
as  an  altogether  separate  transaction  from  the  sale- 
deed  itself,  then  under  s.  54  of  the  Transfer  of  Pro- 
perty Act,  the  agreement  rests  nq  interest  in  the 
property  in  favour  of  the  vendor  and  does  not  require 


to  be  registered.  But  if  the  agreement  to  re-convey 
is  really  a  part  and  parcel  of  the  transaction  of  sale, 
which  is  only  partly  evidenced  by  the  registered  deed 
of  sale,  then  the  agreement  to  re-convey  must  also 
bs  registered.  In  other  words,  when  a  transaction  is 
evidenced  by  a  document  which  is  in  effect  divided 
into  two  parts,  one  of  which  is  registered  and  the 
other  is  not,  then  the  law  looks  to  what  is  the  real 
transaction  between  the  parties,  and  demands  that 
the  whole  document  evidencing  that  transaction  must 
be  registered,  whether  it  consists  of  one  part  or  two. 
[p,  528,  col.  2.] 

Per  Coya;ee,  J. — The  question  whether  an  agree- 
ment to  re-convey  immoveable  property  exceeding 
Rs.  99  in  value  does  or  does  not  require  to  be  regis- 
tered must,  in  each  case,  bs  decided  on  a  consideration 
of  the  contents  of  the  document  itself  and  of  such 
facts  as  might  be  proved  for  the  purpose  of  showing 
in  what  manner  the  language  of  the  document  is 
related  to  existing  facts.  Proximity  of  time,  or  even 
the  identity  of  the  dates  of  the  two  documents,  is 
not  the  decisive  circumstance  in  all  cases,  (p.  529,  col. 

21 

First  appeal  from  the  decision  of  the  Joint 
First  Class  Subordinate  Judge  at  Thana,  in 
Suit  No.  493  of  1922. 

Mr,  A.  G.  Desai,  for  the  Appellants. 

Mr.  G.  N.  Thalcor,  (with  him  Mr.  J.  G. 
Rele),  for  Respondent  No.  1. 

JUDGMENT. 

Macleod,  C,  J. — The  plaintiff  sued  for 
specific  performance  of  a  contract  for  the 
sale  of  certain  immoveable  properties  by  the 
defendants  on  their  passing  a  sale-deed  to 
him,  and  for  possession. 

The  document  on  which  the  plaintiff  sued 
is  Ex.  30  and  is  dated  March  17,  1897. 
It  is  addressed  to  four  persons,  Govindgiri, 
Pitambargiri,  CiiaisiciLnri  and  Harigiri,  the 
four  chelas  of  Guru  Daulatgiri,  It  runs 
as  follows: — 

"Oft  March  2,  1897,  \ye  have  jointly  pur- 
chased from  you  the  property.  After  having 
got  registered  an  arbitration  award  amongst 
ourselves  about  that  property  and  after  you 
have  paid  off  all  your  personal  debts  due 
to  us,  every  one  of  us  will,  to  the  extent  of 
his  own  rights  separately  pass  to  every  one 
of  you  a  separate  agreement  to  sell  one- 
fourth  portion  of  the  property  purchased 
from  you,  the  period  for  the  said  agreement 
being  one  of  twenty  one  years.  When  every 
one  of  you  pays,  after  21  years,  his  one- 
fourth  share  of  the  amount  according  to  the 
agre&n^nt  of  sale,  every  one  of  us  will  pass 
to  every  one  "of  you  a  separate  sale-deed  at 
your  expense.  The  same  will  be  passed 
either  to  you  or  to  your  legal  heirs  or  to  the 
executors  of  your  will." 

Then  there  are  detailed  the  shares  which 
the  purchasers  under  the  document  referred 
to  in  this  Exhibit  should  take,  and  for 


528 


OAJANAN  NABAYAN  PATKAR  V.  JlVANftlRI  CHAMBLOf RI.  [9$  L  0.  19fi6j 


which  they  were  to  pass  sale-deeds  to  the 
various  chelas  as  stated  therein 

We  are  only  concerned  in  this  case  with 
the  father  of  the  plaintiffs  now  deceased, 
viz.,  Chamelgiri  to  whom  Naro  Balkrishna 
Patkar  was  to  pass  a  sale- deed  to  the  extent 
of  a  4- annas  share.  The  first  defendant 
is  the  son  of  Naro  and  the  second  defend- 
ant is  his  daughter-in-law. 

The  main  question  argued  in  the  case  was 
whether  this  Exhibit  is  admissible  in  evi- 
dence for  want  of  registration.  The  Judge 
said: — 

"The  defendant  had  contended  that  this 
potchiti  required  to  be  registered.  No 
authority  was  shown  in  support  of  that  con- 
tention. Exhibit  30,  potchiti,  by  itself  did  not 
create,  declare,  etc.,  any  right,  etc.,  to  or  in 
the  immoveable  property,  it  merely  notified 
that  after  certain  contingencies  a  satekhat 
bargain  paper,  agreeing  to  reconvey  would 
be  passed.  The  writing  is  not  thus  com- 
pulsorily  registrable  under  s.  17  of  the  Re- 
gistration Act.11 

If  the  document  is  to  be  considered  as  an 
agreement  to  obtain  a  satekhat,  then  it 
would  be  barred  by  limitation.  The  suit 
can  only  proceed  on  the  basis  that  the 
document  itself  is  an  agreement  to  re-convey. 
In  1909  a  suit  was  brought  on  this  docu- 
ment together  with  the  sale-deed  dated 
March  2,  1907,  on  the  ground  that  the  two 
constituted  a  mortgage,  and  the  property 
was  sought  to  be  redeemed.  That  suit  was 
dismissed.  From  the  evidence  in  that  case  it 
was  shown  how  Ex.  30  came  to  be  executed. 
Although  the  sale-deed  is  dated  March  2, 
1897,  it  was  really  executed  after  Ex.  30. 
The  chelas  would  not  execute  the  sale-deed 
until  they  obtained  the  agreement  from 
their  creditors.  It  is  obvious,  therefore, 
that  these  documents  evidence  one  transac- 
tion, and,  therefore,  the  principle  which  was 
laid  down  in Bala  Khandapav.  SadashivHari 
Chivati  (1),  after  a  consideration  of  the  deci- 
sion in  Mir  Gazi  v.  Miya  All  (2),  would  be 
applicable.  Each  case  must  stand  on  its 
own  facts.  If  the  agreement  to  reconvey 
can  be  treated  as  a  separate  transaction,  as 
it  was  in  the  case  last  cited,  then  under 
s.  54  of  the  Transfer  of  Property  Act,  it 
vests  no  interest  in  the  property  and  need 
not  be  registered.  But  if  the  document 
which  has  not  been  registered,  is  really  a 
part  and  parcel  of  the  transaction,  which  is 
only  partly  evidenced  by  the  registered 

(1)  64  Ind,  Gas.  294;  23  Bom.  L,  R.  1066 

(2)  28  Ind,  Gas.  132!  16  Bom.  L.  R.  582;  38  B.  703. 


document,  then  it  is  clear  that  the  other 
document  also  requires  to  be  registered.  In 
other  words,  when  a  transaction  is  evidenc- 
ed by  a  document  which  is  in  effect  divided 
into  two  parts,  one  of  which  is  registered 
and  the  other  is  not,  then  the  law  looks  to 
what  is  the  real  transaction  between  the 
parties,  and  demands  that  the  whole  docu-; 
ment  evidencing  that  transaction  must  be  - 
registered,  whether  it  consists  of  one  part 
or  two. 

The  result  is  that,  in  our  opinion,  Ex.  30 
is  not  admissible  in  evidence  for  want  of 
registration.  That  disposes  of  the  case. 
The  appeal  will  be  allowed  with  costs 
throughout. 

Coyajee,  J. — This  suit  was  instituted 
by  Chamelgiri  Guru  Daulatgiri  Gosavi  'for 
specific  performance  of  an  agreement, 
Ex.  30,  dated  March  17,  1897,  to  sell  certain 
immoveable  properties.  Chamelgiri  having 
died,  the  respondents  were  brought  on  the 
record  as  his  legal  representatives,  and  the 
suit  was  proceeded  with. 

.  The  facts  of  the  case,  so  far  as  they  are 
now  material,  may  be  briefly  stated.  In 
'March  1897,  Chamelgiri  and  three  other 
persons  executed  a  deed  of  absolute  sale, 
(Ex.  33),  conveying  certain  properties  to 
Naro  Balkrishna  Patkar  (father  of  defend- 
ant No,  1)  and  two  others.  On  March,  17, 
1897,  the  purchasers  signed  the  document, 
Ex.  30,  by  which  they  agreed  to  reconvey 
the  same  properties  to  the  vendors  in  the 
manner  and  subject  to  the  conditions  there- 
in stated.  In  the  year  1909  the  vendors 
brought  a  suit  (No.  93)  against  the  purcha- 
sers alleging  that  the  said  two  documents 
taken  together  constituted  a  mortgage,  and 
claiming  that  they  were  entitled  to  redeem  it. 
The  suit  failed  on  the  ground  that  Ex.  33 
was  an  absolute  conveyance  and  that  the 
two  documents  could  not  be  so  read  as  to 
convert  the  transaction  into  one  of  mort- 
gage. 

The  plaint  in  this  case  was  presented  on 
December  2,  1922.  The  suit  was  resisted  on 
the  grounds,  among  others,  that:  (1)  the 
agreement,  Ex.  30,  was  not  enforceable  by 
law;  (2)  it  was  not  admissible  in  evidence 
for  want  of  registration;  and  (S)  the  claim 
was  barred  by  the  law  of  limitation.  All 
those  contentions  failed  in  the  Trial  Court, 
and  the  plaintiff  obtained  a  decree  for 
specific  performance  of  the  agreement  and 
for  possession  of  the  suit  properties  on  his 
paying  to  the  defendants  the  sum  of 


E  b. 


G4JANAN  KARjtfAN  PATKAR  V.  JlVANGlfel 


Es.  7,249-12-0.    The  case  of  defendant  No.  2 
need  not  be  separately  considered, 

From  that  decree,  the  defendants  have 
brought  this  appeal,  and  their  main  con- 
tention is  that  as  the  document,  Ex.30,  had 
not  been  registered,  it  could  not  be  receiv- 
ed as  evidence  of  any  transaction  affecting 
the  immoveable  property  comprised  therein, 
and  that,  therefore,  it  could  not  be  made  the 
foundation  of  a  suit  for  specific  perform- 
ance. 

The  plaintiff  refers  to  the  sale-  deed  (Ex. 
53)  in  the  second  paragraph  of  his  plaint, 
*nd  then  in  the  fifth  paragraph  he  says:— 

"At  the  time  of  the  execution  of  the  sale- 
deed  mentioned  in  cl.  2,  it  was  agreed  be- 
tween Patkar,  Ilaikar  and  Pradhan,  the 
vendees  on  one  hand,  and  Chamelgiri, 
Pitambargiri,  Qovindgiri  arid  Harigiri 
vendors  on  the  other,  that  the  vendees 
should  reeonvej'  the  properties  sold  to 
the  vendors  and  the  terms  thereof  which 
were  agreed  upon  were  as  under:  ...  A 
writing  about  the  aforesaid  conditions  was 
passed  on  March  17,  1897,  by  Naro  Bal- 
krishna  Patkar,  Mahadeo  Krishna  Ilaikar 
and  Ramchandra  Bajirao  Pradhan  to 
Chamelgiri,  Govindgiri,  Pitambargiri  and 
Harigiri/1 

No  oral  evidence,  we  understand,  was  led 

in  the  case.     Naro  Balkrishna  Patkar    died 

some  time  before   this  suit  was  filed;    his 

evidence     was,     therefore,    not     available. 

Chamelgiri    died  while  the  suit  was  pro- 

ceeding; he  was  not  examined,  but  the   evi- 

dence given  by    him  in  the    earlier   suit 

No.  93  of  1909  was  received  and  marked  as 

Ex.  39  in  this  case.     Its  admissibility    was 

not  questioned  before  us.    That    evidence 

clearly  shows  that  although,   the  sale  deed 

.bears  date  March  2,   it  was  not  signed  by 

the  vendors  until  after  they  had  obtained 

the  agreement  (Ex.  30)    on   the    17th.    He 

said:    "I  went  to  Alibag  on    the    17th  for 

registering  the  document,  (that  is,  the  sale 

deed).     We   affixed  our  signatures   to   the 

document  in  the  Registrar's   otlice.    Those 

^signatures  were  made   after  the    counter- 

'agreement  (now  Ex.   30)    was  taken.    The 

counter-agreement  was  made  on   that    very 

day."    Chamelgiri  has  given  the    reasons 

;why  he  and   the  6ther  vendors  would  not 

'execute  the  sale-deed  unless  and  until  the 

/purchases  agreed  by  a  separate   document 

..  (Ex.  30)  to  reconvtfy  the  property,  that  is, 

"not  to  "deal  with  the  property  as  full  owners 

for  a  period  of  twenty-one  years.  The  trans- 

„  Action,    then,  was  one  and    indivisible,  it 

34 


was  to  be  found  partly  in  one  document 
and  partly  in  the  other.  Exhibit  33  pur- 
ports to  be  a  deed  of  absolute  sale  and 
lias  been  duly  registered.  Exhibit  30, 
which  purports  to  limit  the  purchasers* 
interest  in  the  property  conveyed  under  the 
former  document  has  not  been  registered. 
This  latter  document  came  under  s.  17  (1) 
(6)  of  Act  III  of  1877  and  its  registration  was 
compulsory;  it  did  not  fall  within  the  excep- 
tion contained  in  s,  17  (h)  of  that  Act  which 
now  corresponds  to  s.  17  (2)  (v)  of  Act  XVI  of 
1908:  Achutoramaraju  v.  Subbaraju  (3), 
The  facts  of  this  case  distinguish  it  from 
those  cases  in  which  a  registered-deed  of 
absolute  sale  is  followed,  soon  or  late,  by  an 
unregistered  agreement  to  reconvey  the 
same  property.  The  question  whether  an 
agreement  to  reconvey  immoveable  pro- 
perty exceeding  Rs.  99  in  value  does  or 
does  not  require  to  be  registered  must,  in 
each  case,  be  decided  on  a  consideration  of 
the  contents  of  the  document  itself  and  of 
such  facts  as  might  be  proved  for  the  pur- 
pose of  showing  in  what  manner  the  langu- 
age of  the  document  is  related  to  existing 
facts.  Proximity  of  time,  or  even  the 
identity  of  the  dates  of  the  two  documents, 
is  not  the  decisive  circumstance  in  all  cases. 
Respondent's  Counsel  relied  on:  (i)  Bhag- 
wan  Sahai  v.  Bhagwan  Din  (4),  (ii)  Vaman 
Trimbak  Joshi  v.  Changi  Damodar  Shimpi 
(5)  and  (Hi)  Mir  Gazi  v.  Miya  AH  (2).  It 
is  sufficient  to  say  that  the  facts  of  this 
case,  as  set  out  above,  are  entirely 
different.  It  is  true  that  in  each  of 
those  three  cases,  the  two  documents 
under  consideration  bore  the  same  date; 
and,  moreover,  in  cases  (ii)  and  (Hi)  the 
agreement  had  not  been  registered.  But 
in  all  the  three  cases,  the  documents  em- 
bodied, each  a  separate  and  distinct  tran- 
saction. Whereas,  in  this  case  there  is  but 
one  transaction  and  it  is  contained  partly 
in  a  registered  document  and  partly  in  an 
unregistered  one.  In  Bhagwan  Sahai's 
cave  (4),  the  plaintiff  sued  to  redeem 
certain  property  on  the  ground  that  a 
deed  of  absolute  sale  of  the  property  and 
a  contemporaneous  agreement  to  reconvey 
it  within  a  period  of  ten  years,  constituted 
a  mortgage.  The  .Courts  in  India  found  in 
favour  of  the  right  to  redeem.  The  Privy 


(3)  25  M,  7;  11  M.  L.  J.  370, 

(4)  17 


I.  A.  98;  12  A.  387;  5  Sar.  I\  C.  J.  557;  6  Ind< 
Dec.  (N.  s.)  992  (?.  C.). 

(5)  91  Ind.  Cas.  360;  27  Bom,  L4  R.  1261;  49  B« 
86;'. 


530 


KISAN  V.  JASODABAT. 


Council  reversed  their  decree  and  dis- 
missed the  suit  on  the  ground  that  it  was 
not  a  case  of  mortgagor  and  mortgagee, 
but  one  of  an  absolute  sale  with  a  right  to 
re-purchase  within  a  period  of  ten  years. 
The  question  whether  an  unregistered 
agreement  to  reconvey  property  exceeding 
Rs,  99  in  value  could  be  made  the  basis  of 
a  suit  for  specific  performance  was  not 
raised  and  was,  therefore,  not  considered 
(see  the  facts  set  out  at  pages  98  and  99*.) 

In  Bala  Khandapa  v.  Sadashiv  Hari 
Chivati  (1),  the  plaintiff  sued  to  recover 
possession  of  certain  property  on  the  basis 
of  a  sale-deed  (Ex.  22)  and  an  agreement  to 
reconvey  (Ex.  23).  Their  Lordships  held 
that  the  document  (Ex.  23)  could  not  be 
treated  as  a  separate  document  entirely 
apart  from  the  sale-deed,  and  that  it  requir- 
ed to  be  registered.  The  learned  Chief 
Justice  said  (page  1067t):  — 

"The    plaintiff  has  to  prove  that  he   is 
entitled  to  get  a  reconveyance  from  the  de- 
fendant, and  he  could  only  prove  that  by 
evidence,  and  unless  Ex.  23  can  be  exhibited 
he  must  fail.    He  can  only  succeed  if  he 
can  satisfy  the  Court  that  Ex.  23  was  an 
entirely  separate  transaction  from   Ex.   22, 
since  it  will  be  conceded  that  if  the  defend- 
ant as  owner  of  the  property  had,  after  the 
sale  had  been  executed,  agreed  to  reconvey 
the  property  to  the  plaintiff  after  a  certain 
date,  that  might  be  a  document  which  need 
not  be  registered.    That  was  the  view  taken 
by  this  Court  in  Mir  Gazi  v.  Miya  Ali  (2), 
though    in  that    case  the  two  documents 
were    simultaneously    executed,    and  the 
Court  came  to  the  conclusion  that  the  two 
must  be  treated  as  separate,  so    that  the 
second  document  was  nothing  more  than  an 
ordinary  agreement  to  sell,    i  should   con- 
sider myself  that  that  was  a  very  extreme 
case.11 

In  this  case  the  document  (Ex.  30)  was 
obtained  by  the  vendors  before  they  exe- 
cuted the  sale  deed  Ex.  33,  it  purports,  as 
indeed  it  was  intended,  to  limit  the  pur- 
chasers' interest  in  the  immoveable  pro- 
perty conveyed  under  Ex.  33;  it,  therefore, 
required  to  be  registered;  and  being  un- 
registered it  could  not  be  made  the  founda- 
tion of  a  suit  for  specific  performance. 

For  these  reasons  I  agree  in  the  order 
proposed  by  my  Lord  the  Chief  Justice. 

z.  K.  Appeal  allowed. 


*Pages  of  17  1, 
tPaga  rf  23  ttuxu  JU 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  REVISION  No.  51  OF  1924. 

September  22,  1924. 
Present:— Mr.  Baker,  J.  C. 
K  ISA  N— DEFKN  DAN  T — APPLICANT 

versus 

Musammat  JA80DABAI — PLAINTIFF — 
NON-APPLICANT. 

Limitation  Act  (IX  of  1908),  Sch.  I,  Art.  75-- 
Instalment  bond — Whole  amount  becoming  due  on 
default- -Limitation,  commencement  of. 

Where  an  instalment  bond  provides  that  on  default  9 
in  the  payment  of  two  instalments  the  whole  amount  * 
due  under  the  bond  shall  become  payable,  and  default 
is   made  in  the  payment  of  two  instalments,  a    suit  to 
recover  the  amount  of  the  bond  is  governed  by  Art.  75 
of  Sch    I  to  the  Limitation  Act,  and  limitation  begins 
to  run  from  the  date  on  which  the  second  instalment 
in  respect  of  which  default  was  made  became  due. 

Revision  against  the  decree  of  the  Small 
Cause  Court,  Nagpur,  dated  the  27th 
November  1923,  in  Civil  Suit  No.  539  of 
1923. 

Mr.  G.  R.  Pradhan,  for  the  Applicant. 
Mr.   W>  R.   Puranik,  for   the  Non- Appli- 
cant. 

ORDER.— The  only  point  in  this  case 
is  one  of  limitation.  The  defendant  exe- 
cuted a  bond  for  Rs.  375  in  favour  of  plaint- 
iff on  3rd  October  1915.  Rs.  25  were  re- 
paid immediately  and  the  balance  waa 
re-  payable  by  seven  instalments  of  Rs.  50 
each,  payable  in  Kartik  Shuddh  15th  every 
year,  beginning  from  Fasli  1326  (1^16). 
On  failure  of  any  two  instalments  the 
whole  was  to  become  payable. 

The  plaintiff  brought  a  suit  on  the  bond 
on  22nd  March  1 923,  alleging  that  the 
instalments  for  1326,  1327  and  1328  (i916, 
1917  and  1918)  had  been  paid  and  those 
for  1919  and  1920  had  not  been  paid.  The 
last  payment  was  in  March  1921  on  account 
of  the  instalment  for  1328.  The  defendant 
denied  any  payment  subsequent  to  1916. 

The  Small  Cause  Court  Judge  found  that 
the  instalments  of  1327  and  1528  were  paid 
as  stated  by  plaintifi  arid  awarded  plaintiff's 
claim. 

Defendant  applies  in  revision  on  the 
giound  that  the  alleged  payment  by  defend- 
ant being  neither  a  payment  of  interest  aa 
such  or  a  part  of  payment  of  principal  in 
the  hand  of  defendant  could  not  operate  to 
save  limitation  under  s.  20  of  the  Limita- 
tion Act. 

It  is  further  aigued  that  the  mere  pay* 
meat  and  acceptance  of  an  overdue  icetal- 


[92  L  0. 1926]  RtJLfcu  fcAM  v.  SURAIN* 

ment  will  not  operate  as  a  waiver  and  refer- 
ence is  made  to  Ballabhdas  v.  Dalipsingh 
(1). 

Neither  of  these  pleas  was  urged  in  the 
Small  Cause  Court  where  the  defendant 
simply  denied  any  payment  after  1910  arid 
stated  he  was  not  in  Nagpur  during  sub- 
sequent years 

The  case  is  governed  by  Art.  75  of  the 
Limitation  Act  and  the  cause  of  action 
arises  when  the  default  is  made.  Section 
20  of  the  Limitation  Act  has  no  application. 
The  Small  Cause  Court  Judge  has  found 
that  the  instalments  for  Fasli  1327  and 
1328  were  paid.  The  cause  of  action  arose 
when  the  instalments  of  1329  and  1330  were 
not  paid.  The  suit  must  be  brought 
within  three  years  from  the  date  when  the 
instalment  of  1330  fell  due  which  was 
Kartik  Shuddh  15th,  1330.  (26th  November 
1920.)  The  suit  was  brought  in  March  1923 
and  is  in  time. 

It  is  argued  that  overdue  instalments  were 
to  carry  interest  and  so  there  was  no  full 
payment  of  the  instalment  of  1328.  It  was, 
however,  accepted  as  a  payment  of  the  in- 
stalment in  full. 

The  application  is  dismissed  with  costs. 

z.  K.  Application  dismissed. 

(1)  12  Ind.  Gas.  741,  7  N.  L.  R.  147. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  401  OF  1925. 

November  3,  1925. 

Present:  —Mr.  Justice  LeRossignol. 

RULDU  RAM— DEFENDANT — APPELLANT 

versus 

SURAIN  SINGH  AND  OTHBRS— PLAINIIFPJ 
AND  GANDA  SINGH  AND  OTHERS- 
DEFENDANTS — RESPONDENTS. 

Land  Redemption  and  Foreclosure  Regulation 
(Bengal)  (XVII  of  1S06)—  Punjab  Land  Revenue  Act 

(xviiofm?  ,t  ..   v  /•.;..•;.    ;*,-•••  •-•     /?,-"-• 

Records,  entry    in — Pre&umpuon — heaempiiun    tsuu — 
Burden  of  proof. 

Where  in  the  case  of  a  mortgage  comprising  a 
fltipulation  by  way  of  conditional  sale,  the  mortgagee 
purports  to  take  foreclosure  proceedings  and  a  muta- 
tion is  thereafter  recorded  in  the  Kevenuo  Records 
showing  that  the  mortgagee's  rights  have  been  con- 
verted into  full  proprietary  rights,  the  burden  is 
nevertheless  upon  the  mortgagee,  in  a  suit  for  redemp- 
tion brought  by  the  mortgagor,  to  prove  that  his 
mortgage  right  has  been  converted  by  foreclosure  pro- 
ceedings in  accordance  wilh  law  into  a  full  proprie- 
tary right.  The  only  onus  thrown  upon  the  plaintiff 
in  such  a  case  is  to  show  that  there  was  a  mortgage 
and  that  it  was  granted  within  sixty  years  of  suit.  Once 
this  is  established,  it  would  rebut  the  prima  /acid 


Ssi 

presumption  of  correctness  Jof  the  Revenue  '"  Record 
entry,  and  the  onus  would  then  be  on  the  defendant 
Jto  show  that  the  revenue  entry  is  in  fact  correct  and 
that  there  was  a  proper  and  legal  foreclosure. 

Second  appeal  from  a  decree  of  the 
Additional  District  Judge,  Amritsar  at 
Lahore,  dated  the  18th  November  1924, 
;"":::. :"^  ::iat  of  the  Subordinate  Judge, 
T-  i:  i  C.ii— .  Amritsar,  dated  the  7th  March 
1923. 

Lala  Moti  Sagar,  R.   B  ,   and  Lala  Amar 
Nath  Chona,  for  the  Appellant. 
Lala  Fakir  Chand,  for  the  Respondents. 

JUDGMENT.- -This  second  appeal 
arises  out  of  a  suit  to  redeem  a  mortgage  of 
land  granted  in  the  year  1882.  The  mort- 
gage was  with  possession  and  comprised  a 
stipulation  by  way  of  conditional  sale.  The 
suit  has  been  decreed  by  the  Courts  below 
on  the  ground  that,  though  foreclosure  pro- 
ceedings in  the  suit  were  had  in  1885,  no 
record  of  those  proceedings,  with  the  excep- 
tion of  a  mere  entry  in  a  register  that  notice 
was  served  on  the  mortgagor,  is  forth- 
coming, and  the  oral  evidence  to  the  effect 
that  the  notices  were  in  accordance  with  law 
and  that  all  the  formalities  required  by  the 
Regulation  were  observed  has  been  rejected. 
In  other  words,  the  Courts  below  have 
held  that  there  were  no  valid  foreclosure 
proceedings  and  the  mortgage  consequently 
is  still  subsisting. 

In  1888,  after  foreclosure  proceedings,  a 
mutation  was  written  up  to  convert  the 
mortgagee  right  into  a  full  proprietary  right. 
Bagu,  the  mortgagor,  appeared  before  the 
attesting  officer  and  denied  receipt  of  con- 
sideration for  the  mortgage.  He  did  not 
assert  that  the  foreclosure  proceedings  were 
not  in  order,  and  since  that  date  the  quondam 
mortgagee  has  been  in  possession  and 
regarded  as  proprietor.  In  1902  Ruldu 
Ram,  the  quondam  mortgagee,  sold  37 
kanals  8  war/as  out  of  the  land  mortgaged 
to  an  ui\rle  of  one  of  the  present  plaintiffs 
who  are  reversioners  of  the  mortgagor  Bagu 
who  died  childless.  The  vendee  is  not  one 
of  the  plaintiffs.  Consequently  it  is  not 
contended  for  the  appellant  with  any  vigour 
that  there  is  any  question  of  estoppe^  but 
it  is  urged  that,  inasmuch  as  the  entry  in 
the  Revenue  Record  is  a  prima  fa  tie  evidence 
of  the  full  proprietary  right  of  the  defendant, 
the  burden  of  proving  that  there  was  no 
valid  foreclosuie  lay  upon  the  plaintiffs. 

The  plaintiffs-respondents  referred  to 
Nvrendra  ATarain  Singh  v.  Dwarka  Lai 


532 


BOMBAY  BAHODA  &  CENTRAL  INDIA  RY.  v,  SULABBHAI 


Mundur  (1)  and  Madho  P^rshad  v.  Gajudhar 

(2)  which  lay  down  that  the  quondam  mort- 
gagee is  fixed  with  the  onus  of  proving  the 
validity  of  the  foreclosure  proceedings,  but 
it  is  noteworthy  that  in  both  those  cases  the 
plaintiff  was  the  quondam  moitgagee  who 
was  out  of  possession  and  who  came  into 
Court    seeking  possession  within    a  short 
time  of  the  foreclosure  proceedings.     Refer- 
ence is  also  made  to  Indar  v.  Asa  Singh 

(3)  where  the    rule  is  cited   that  neither 
mortgagor  nor  mortgagee,  by  adverse    act, 
can  bar  the  right  of  the  other.     None    of 
these  rulings  is  of  any  direct   help  in    the 
present  case.     Admittedly  it  lies  upon   the 
mortgagee  to  prove  that  his  mortgage  right 
has  been  converted  by  foreclosure  proceed- 
ings in  accordance  with  law  into  a  lull  pro- 
prietary right,  and  the  finding  in   this  case 
is  that  such  valid  foreclosure  proceedings 
have  not  been  established.    But  the  ques- 
tion for  this  Court's  decision  is  whether  in 
this  case,  in  which  the  mortgagor's  repre- 
sentatives are  the  plaintiffs,   the  burden  of 
proving    that  the  foreclosure  proceedings 
were  invalid  does  not  lie  upon  them   by 
reason  of  the  mutation  proceedings  of  1888 
and    the  presumption   of   correctness  that 
attaches  to  the  entry  in  the  "Revenue  Record. 

In  my  opinion  the  only  onus  thrown  upon 
the  plaintiffs  is  to  show  that  there  was  a 
mortgage  and  that  it  was  granted  within 
sixty  years  of  suit.  This  rebuts  the  pri ma 
facie  presumption  of  correctness  of  the 
Revenue  Record  entry  and  the  defendants 
are  then  fixed  with  the  liability  for  show- 
ing that  the  revenue  entry  is  in  fact 
correct  and  that  there  was  a  proper 
and  legal  foreclosure.  The  Courts  below 
on  the  evidence  might  have  held  that  the 
foreclosure  proceedings  were  good,  but  they 
have  come  to  the  opposite  conclusion  and 
the  finding  is  one  of  fact. 

For  the  foregoing  reasons  it  must  be  taken 
that  there  were  no  legal  foreclosure  proceed- 
ings and  the  mortgage  is  still  subsisting. 
I  accordingly  dismiss  the  appeal  with  costs. 

z.  K.  Appeal  dismissed. 

(1)  3  C,  307;  1  0.  L.  R    369;  5  I.  A.   18;  3  Suth.  P. 
0.  J.480J3  Sar.  P.  C.  J.771;  2  Ind  Jur.  117;   1  Ind. 
Dec.  (N.  s.)  839  (P.  0 ) 

(2)  11  C  111;  11  I.  A.  186;  8  Ind.  Jur    694;  4  Sar. 
P.  0.  J.  574;  flafique  and  Jackson's  P    C.   No.  85;  5 
Ind.  Deo.  (N.  s.)  832  (P.  0.). 

(3)  65  P.  K,  1908;  90  P,  L,  R.  1908;  113  P.  W.  R. 
'" 


[98  I.  0. 

ALLAHABAD  HI&H  CbURT. 

CIVIL  REVISION  No.  Ill  OF  1925, 

November  30,  1925. 

Present:—  Mr.  Justice  Daniels. 

THE  BOMBAY  BARODA  AND  CENTRAL 

INDIA  RAILWAY— DEFENDANT 

— APPLICANT 

versus 

MESSKS.  GULABBHAI BHAGWANDAS— 
PLAINTIFFS— OPPOSITE  PARTY. 

Carriage  of  goods — Railway  Company — Freight 
charged  at  maund-rates,  whether  can  be  subsequently 
calculated  at  wagon-rates. 

Where  a  Hallway  Company  at  the  time  of  consign- 
ment agiees  to  charge  freight  on  the  basis  of  calculation 
at  maund-ratps  and  grants  a  Railway  receipt  on  that 
basis,  it  cannot  subsequently  demand  freight  on  the 
basis  of  a  calculation  at  wagon-rates  and  vice  versa. 

Civil  revision  from  an  order  of  the  Ad- 
ditional Judge,  Small  Cause  Court,  Cawn- 
pore,  dated  the  14th  May  1925. 

Messrs.  Shiva  Prasad  Sinha  and  S.  S. 
Sasiry,  for  the  Applicant. 

Dr.  M.  L.  Agarwala,  for  the  Opposite, 
Party, 

JUDGMENT*— This     is     a     revision 
against  a  decree  of  the  Small  Cause  Court. 
The  goods  were  consigned  at  maund-rates. 
The  freight  charged  in  the  Railway  receipt 
was  Rs.  211.     At   destination   the  Railway 
claimed  an  additional  sum  of  Rs.  219  on  the 
ground  that  the  goods  occupied  a  full  eight- 
wheeled  wagon.    The  Judge  of  the  Small 
Cause  Court  has   decided  that  this  over- 
charge was  not  justified  as  the  Railway 
Company    were  not  entitled  to  alter    the 
basis  of  calculation  at  maund-rates  on  which 
the  Rail  receipt  was  granted  to  a  calculation 
at  wagon-rates  or  vice  versa.    This  view  is 
supported  by  the  Full    Bench   decision  in 
Chunni   Lai  v.    Nizam's  Guaranteed  State 
Railway  Co.  (1).    The  learned  Pleader  for 
the  applicant  states  that  there  is  a  mistake 
in  the  judgment  in  saying  that  the  charge 
has  been  made  at  wagon-rates,  but  I  find 
that  the  passage  in  the  judgment  is  repro- 
duced verbatim  from  the  statement  made 
by  the  defendant's  Vakil    in    the    Court 
below.    Even  if  the    applicant's   case    ia 
correct  and  the  Railway  are  charging  on  a 
conventional  amount  of  maunds320  because 
the  goods  occupied  a  complete  wagon,  this 
does  not  appear  to  me  tomakeany  difference 
in  principle,    The  view  taken  by  the  Court 
below  was,  in  my  opinion,   correct,  and  I 
dismiss  this  revision  with  costs. 

z,  K.  Revision  dismissed. 

a)  29  A.  228;  2  M.  L.  T.  42;  A,  W,  N,  (1807)  21;  * 
A.  L,  J,  60, 


KALLIAKKAL  V.  PALANI  KOttNDAN. 


[92  I.  0, 1I2BJ 

MADRAS  HIGH  COURT. 

CIVIL  RBVISION  Prrmox  No.  679  OF  1923. 

October  15,  1925. 
Present:— Mr.  Justice  Devadoss  and 

Mr.  Justice  Waller. 
KALLIAKKAL— PETITIONER 

versus 

PALANI  ROUND  AN  AND  ANOTHER— 
RESPONDENTS. 

Civil  Procedure  Code  (A-  I' t  .-  -  IX,  0  XXI* 
rr.  97  to  101— Execution  .  .  ...  IX,  applica- 

tion of — 0.  XXIt  r.  97,  proceedings  under,  whether 
execution  proceedings, 

Order  IX,  0.  P  G.,  has  no  application  to  execution 
proceedings.fp.  534,  col.  2  ] 

[Gass-law  considered  ] 

Proceedings  under  0  XXI,  rr  97  to  101,  0  P.  C  , 
are  proceedings  in  execution  and  O  IX  is  inapplic- 
able to  them.  [p.  534,  col  1  ] 

A  Court,  therefore,  has  no  jurisdiction  to  set  aside 
under  O.  IX,  r.  13,  0.  P.  O.,  an  ex  parte  order  direct- 
ing, free  from  obstruction,  delivery  of  property  to  an 
auction-purchaser  in  execution  of  a  d^oiee.  [p  534, 
col.  2) 

Petition,  under  s.  115  of  Act  V  of  1908  and 
s.  107  of  the  Government  of  India  Act, 
praying  the  High  Court  to  revise  an  order 
of  30th  November  1922  of  the  Court  of  the 
District  Munsif,  Namakal,  in  R.  B.  A. 
Nos.  943  and  962  of  1922,  in  R.  E.  P.  No.  539 
of  1921,  in  O.  8  No.  562  of  1918. 

Mr.  S  Varadackariar,  for  the  Petitioner. 

Mr,  L.  S.  Veeraraghava  Iyer,  for  the  Re- 
spondents. 

JUDGMENT. 

Devadoss,  J* — The  only  question  in 
this  revision  petition  is  whether  0.  IX,  r. 
13  applies  to  execution  proceedings.  The 
District  Munsif  of  Namakal  passed  an  ex 
parte  order  on  26th  October  1922  directing 
delivery  of  property  free  from  obstruction. 
Defendants  Nos.  5  and  6  applied  on  9th 
November  1922  to  set  aside  the  ex  parte 
order.  The  District  Munsif  set  aside  the 
ex  parte  order  and  passed  a  fresh  order. 
The  auction- purchaser  who  is  also  a  decree- 
holder  has  preferred  this  civil  revision 
petition.  The  question  for  decision  is,  was 
the  order  of  the  District  Munsif  setting 
aside  his  previous  ex  parte  order  passed 
without  jurisdiction  ? 

The  answer  to  the  question  depends  upon 
the  wider  question  whether  O.  IX  applies 
to  execution  proceedings.  There  are  several 
cases  on  the  point  which  are  not  all  re- 
concileable.  InTirthasamiv.Annappayya  (1) 
Muthuawamilyer,  J.,  held  thatChaps.Vli  and 
XIII  of  the  old  Code  did  not  apply  to  execu- 
tion proceedings.  He  rested  his  conclusion 
upon  the  Kxplan.r.iuii  to  s.  617  of  the  Code 

(1)  18  M.  13J;  6  Ipd.  Dec,  (N.  s.)  4U 


533 


of  1882.  By  Act  VI,  s.  4,  of  1882  an  Explana- 
tion was  added  to  s.  647.  This  Explanation 
was  enacted  on  account  of  the  view  held 
by  the  High  Courts  of  Allahabad  and  Bom- 
bay that  s.  (547  corresponding  to  s.  141  of 
the  present  Code  applied  to  execution 
proceedings.  The  Explanation  is  in  these 
terms :  "This  section  does  not  apply  to 
applications  for  the  execution  of  decrees, 
which  are  proceedings  in  suits."  The  Privy 
Council  held  in  Thakur  Prasad  v.  Fakir 
Vllah  (2)  that  independently  of  the  Explan- 
ation, s.  647  did  not  apply  to  applications 
for  execution  but  only  to  original  matters 
in  the  nature  of  suits,  such  as  proceedings 
in  Probates,  .  ,  .-  V  ,'  -%  \\  •  and  so  forth. 
Muthuswami  Iyer,  J.,  held  in  Tirthasami 
v.  Annappayya  (1)  that  the  dismissal  of  an 
ex  parte  did  not  bar  a  fresh  application  for 
execution.  In  Balasubramania  Chetti  v. 
Swarnammal  (3)  Benson  and  Sundara  Iyer, 
JJ.,  held  that  O.  II,  r.  2  did  not  apply  to 
execution  proceedings.  They  observe  at 
page  201:*— "It  could  not  have  been  the 
intention  of  the  Legislature  to  apply  to  Ex- 
ecution proceedings  provisions  laid  down 
with  regard  to  suits  only.  The  procedure 
to  be  followed  in  appeals  and  ex  parte 
applications  is  specifically  laid  down  in  the 
C.  P.  C.  section  141  is  intended  to  apply  to 
other  proceedings  in  Civil  Courts,  such  as 
Probate,  etc.,"  Justice  Ay  ling  and  Justice 
Seshagiri  Iyer,  JJ.,  followed  this  decision  in 
Somasundaram  Filial  v.  Chokkalinga  Pillai 
(4)  In  Kajuluri  Swami  v.  Chintalapati  Sur- 
•••:  .  -na  Razu  (5)  Mr.  Jackson,  J.,  held 
that  0.  IX,  r.  9  did  not  apply  to  orders 
passed  in  execution  proceedings. 

There  are  several  cases  which  support  the 
contention  that  O.  IX  is  applicable  to  exe- 
cut;  •;  :  :  •  ~-~  V'".T-  Ii  Subbiah  Naicker 
v.  j .  . '  '  '  '•  *"  (6)  Alying  and 

Sadasiva  Iyer,  JJ.,  were  of  opinion  that  O. 
IX,  r.  13,  applied  to  execution  proceedings. 
The  point  did  not  directly  arise  in  that 
case,  but  the  learned  Judges  held  "orders 
in  execution  which  came  under  s.  47,  C.  P. 
C.,  are  decrees  as  defined  in  s.  2  of  the 
Code  and  hence  ex  parte  orders  passed  in 

.2)  17  A  106;  5  M.  L  J  3,  22  I.  A  44;  6  Sar.  P.  C. 
J  526;  8  lud.  Dec.  (N  s  )  393  (P  C  ) 

(3)  21  Ind.  Cas.  32;  38  M  199,  (1913)  M.  W.  N.  685; 
H  M  L.  T  196;  25  M.  L  .1  367 

(4)  38  Ind.  Cas  806;  40  M.  780;  5  L.  W.  267. 

^   '   _.»    i   f~»      r>  4  i    lit1**   1     ^   tlf'A.    MA    1 


534 

execution  are  ex  parte  decrees  and  0.  IX,  r. 
13  provides  generally  for  the  setting  aside 
of  ex  parte  deciees  and  not  only  for  the 
setting  aside  of  those  classes  of  ex  parte 
decrees  which  are  not  also  orders  passed 
under  s.  47  in  execution  proceedings/1  In 
Chindambara  Chetty  v.  Kandasami  Goundan 
(7)  the  point  \vas  not  decided,  though  Old- 
field,  J.,  in  his  referring  order  refers  to  the 
Oiir.lictisiir  authorities  on  the  point.  The 
learned  Chief  Justice  observed  at  page 
780*  "I  desire  to  say  that  our  decision  in 
this  case  must  be  taken  to  be  con  lined  to 
the  particular  facts  of  this  case,  that  is  to 
say,  that  where  you  have  nothing  more 
than  the  non-attendance  at  the  hearing  of 
an  application  to  settle  the  terms  of  a  sale 
proclamation,  the  respondent  cannot  be 
taken  to  be  estopped  by  reason  of  that  non- 
attendance  on  the  principle  of  res  judicata 
from  thereafter  denying  the  liability  of  the 
property  to  execution".  The  decision  in 
Kali  Shettathi  v.  Shama  Rao  (8),  relied  upon 
by  Mr.  Veeraraghavier  does  not  help  him. 
For,  in  the  former,  the  point  was  not  decided 
and  in  the  latter  Oldfield  and  Sadasiva 
Iyer,  JJ.,  held  that  O  IX  of  the  C.  P.  0.,  did 
not  apply  to  execution  proceedings. 

There  is  a  conflict  of  opinion  in  the  other 
High  Courts  also.  In  Hari  Charan  Ghosh 
v.  Manmatha  Nath  Sen  (9),  Jenkins,  0.  J. 
and  Ray,  J.,  held  that  O.  IX,  r.  13,  0.  P.  C. 
was  not  applicable  to  a  proceeding  under 
rr.  100  and  101  of  O.  XXI.  The  learned 
Chief  Justice  after  going  into  the  history 
of  s.  647  and  the  reason  for  enacting  s.  4 
of  the  Act  VI  of  1882  observes  :  uBut  after 
this  alteration  in  the  law,  the  Privy 
Council  by  a  case,  Thakur  Prasad  v.  Fakir 
Ullah  (2)  decided  on  s.  647  as  it  stood  be- 
fore the  Explanation  was  added,  that  the 
section  did  not  apply  to  execution  proceed- 
ings. The  purpose  of  the  Legislature  in 
omitting  that  Explanation  was  to  do  away 
with  that  which  was  shown  to  be  unneces- 
sary by  the  Privy  Council  decision  and  to 
rely  upon  the  terms  of  the  section  as  inter- 
preted by  the  Privy  Council."  This  deci- 
sion is  a  direct  authority  for  the  contention 
of  Mr.  Varadachariar  for  the  petitioner 
that  r.  13  does  not  apply  to  execution  pro- 
ceedings. A  Full  Bench  of  the  Patna  High 
Court  in  Bhubaneswar  Prasad  Singh  v.  Tilak- 

(7)  74  Ind.  Cas>  155;  46  M,  768;  (1923)   M.  W.  N.  571; 
45  M  L.  J.  346;  18  L.  W.  757;  (1924)  A.  I.  R.  (M.)  1. 

(8)  37  Ind.  Gas.  229;  5  L.  W.  124;  21  M.  L.  T.  297. 

(9)  19  Ind.  Gas.  683;  41  C.  1;  18  0.  W.  N.  343. 
^  "Page  of  46M. 


KALLIAKKAL  T>.  PAjftNI  KOUNDAN.  [92  L  0.  1926] 

Ahari  Lai  (10)  held  that  0.  IX,  r,  9  did  not 
/apply  to  an  order  dismissing  for  default 
an  application  to  set  aside,  under  0.  XXI, 
r.  90,  a  sale  held  in  execution  of  a  decree. 
In  that  case,  all  the  cases  bearing  on  the 
question  whether  O.  IX  applies  to  execution 
proceedings,  are  collected.  Though  the 
learned  Judges  do  not  discuss  in  detail  all 
the  cases,  they  give  sufficient  reasons  for 
their  conclusions  that  O.  IX  has  no  appli- 
cation to  execution  proceedings.  In  Sheo- 
nandan  Chowdhury  v.  Debi  Lai  Chowdhury 
(11)  it  was  held  that  0.  IX,  r.  4  of  the  0. 
P.  C.,  applied  to  an  application  under  0. 
XXI,  r.  100,  which  had  been  dismissed  for 
default.  With  great  respect,  I  am  unable 
to  follow  the  reasoning  of  the  learned 
Judges.  They  observe  at  page  378.*  "An 
application  under  0.  XXI,  r.  100,  is  not  an 
application  in  execution  proceedings,  but 
is  an  original  matter  in  the  nature  of  a 
suit,  and,  in  my^opinion,  the  decision  of 
the  Judicial  Committee  in  the  case  cited  is 
an  authority  for  the  proposition  that  O. 
IX,  r.  4  would  apply  by  force  of  s.  141  to 
original  matters  in  the  nature  of  suits/1 
All  matters  in  execution  are  governed  by 
O.  XXI;  0.  XXI  is  headed  "execution  of 
decrees  and  orders"  and  applications  under 
rr.  97,  99,  100  and  101  are  applications  to 
the  Executing  Court  in  the  course  of  execu- 
tion. It  is  difficult  to  understand  why  they 
cease  to  be  proceedings  in  execution  by 
the  mere  fact  that  the  applications  are 
made  not  by  the  decree-holder,  but  by 
other  persons.  It  is  the  Court  which  exe- 
cutes the  decree  following  the  procedure 
laid  down  in  0.  XXI  that  entertains  appli- 
cations under  rr,  97,  100  and  101.  This 
view  that  after  sale,  proceedings  in  execu- 
tion are  not  strictly  execution  proceedings 
is  held  by  some  of  the  learned  Judges  of 
the  Calcutta  High  Court.  In  Diljan 
Mihha  Bibi  v.  Hemanta  Kumar  Roy  (12)  it 
was  held  :  "An  application  for  setting 
aside  an  execution  sale  is  not  an  applica- 
tion for  execution,  but  in  the  nature  of  an 
original  proceeding  which  is  not  excluded 
from  the  purview  of  s.  141  of  the  C.  P.  C. 
Such  application,  if  dismissed  for  default, 
can  be  restored  under  O  IX,  r.  9  of  the  C. 
P.  C.11  In  Bhuben  Behari  Nag  Mazumdar 
v.  Dhirendra  Nath  Banerji  (13)  the  same 

(10)  49  Ind.  Gas.  617;  4  P,  L.  J    135;  (1919)  Pat.  75. 

(11)  71  Ind.  Caa  484;  2  Pat  372;  4  P.  L.  T,  93;  178  at 
L  R.  134;  (1923)  A.  L  R    ^Pat.)  239;    (1923)  Pat.    78 

(12)  29  Ind.  Gas.  395;  19  0.  W.  N.  758. 

(13)  33  Jnd.  Gas.  58 i;  20  C.  W.  N.  1203. 
*Page  of  2 


[92  I.  0. 1926j 


OAKPAT  RAI  V.  KANI  RAM-M0NNA  LAL, 


535 


view  was  held.  In  Ramappa  Chettiar  v. 
Ekambqra  Padayachi  (14)  Venkatasubba 
Rao,  JM  held  "A  petition  to  restore  a 
claim  petition,  dismissed  for  default  of  ap- 
pearance, of  the  petitioner,  is  maintainable 
and  not  barred  by  0.  XXI,  r.  63,  0.  P.  0." 
When  a  decree-holder  of  an  auction- 
purchaser  is  resisted  in  obtaining  posses- 
sion of  immoveable  property  by  a  person 
in  possession,  he  may  make  an  application 
to  the  Court  com  plaining  of  such  resistance 
or  obstruction  under  r.  97.  If  the  Execut- 
ing Court  is  satisfied  that  the  obstruction 
was  caused  by  the  judgment-debtor  or  by 
some  other  person  at  his  instigation,  it 
shall  direct  that  the  applicant  be  put  into 
possession  of  the  property  and  if  there  is 
still  further  resistance,  it  may  make  the 
necessary  order  to  enforce  delivery  of  the 
property  If  thesCourt  is  satisfied  that  the 
resistance  or  obstruction  was  occasioned  by 
any  person  other  than  the  judgment-debtor 
claiming  on  good  faith  to  be  in  possession 
of  the  property  on  his  own  account  or  on 
account  of  some  person  other  than  the 
judgment-debtor,  the  Court  shall  make  an 
order  dismissing  the  application  (r.  99). 
Where  any  person  other  than  the  judgment- 
debtor  is  dispossessed  of  immoveable  pro- 
perty by  the  holder  of  a  decree  for  posses- 
sion or  by  the  auction-purchaser,  he  may 
make  an  application  to  the  Court  complain- 
ing of  such  dispossession.  If  the  Court 
is  satisfied  that  the  applicant  was  in  pos- 
session of  the  property  on  his  own  account 
or  on  account  of  some  person  other  than 
the  judgment-debtor,  it  shall  direct  that 
the  applicant  be  put  in  possession  of  the 
property.  Rule  103  gives  the  right  to  the 
person  against  whom  an  order  is  made 
under  rr.  y8,  99  or  101  to  institute  a  suit  to 
establish  the  right  which  he  claims  to  the 
present  possession  of  the  property,  but  sub- 
ject to  the  result  of  such  suit,  if  any,  the 
order  shall  be  conclusive.  In  considering 
the  question  whether  the  general  provisions 
of  the  Code  apply  to  execution  proceed- 
ings, we  must  not  overlook  the  fact  that  a 
right  of  suit  is  given  under  r.  103  to  per- 
sons against  whom  an  order  is  passed.  In 
the  case  of  parties  to  the  decree,  an  appeal 
is  provided  under  s.  47  of  the  C.  P.  C.  and 
in  the  case  of  persons  who  are  not  parties 
to  the  decree,  against  whom  an  order  is 
passed  in  execution,  and  in  the  case  of  the 

(14)  79  Ind.  Cas.  818;  19  L.  W,  685;  47  M  L.  J,  13; 
m)  M.  W.  N.  479;  17  M,  031;  (^IttM)  A.  I.  R.  (M,) 
5;  31  M,I<.T,S09, 


decree-holder  or  auction*purchaser  against 
whom  an  order  is  passed  in  favour  of  per- 
sons not  parties  t"o  the  decree,  a  suit  is  pro- 
vided. In  the  face  of  the  clear  wording  of 
r.  103  it  is  difficult  to  understand  why  any 
proceeding  after  the  property  is  brought 
to  sale  should  be  considered  as  something 
different  from  execution  proceedings  under 
O.  XXI.  Oa  a  careful  consideration  of 
all  the  cases,  I  have  no  hesitation  in  hold- 
ing that  proceedings  under  rr^  97,  98,  99, 
100  and  101  are  execution  proceedings  and, 
therefore,  O.  IX  does  not  apply  to  them. 
The  order  of  the  District  Munsif  setting 
aside  an  ex  parte  order  was  passed  with- 
out jurisdiction.  The  civil  revision  peti- 
tion is  allowed  and  the  order,  dated 
30th  November  1922,  is  set  aside  and  that, 
dated  26th  October  1922,  is  restored  with 
costs  throughout. 

Waller,  J,— I  agree  and  have  nothing 
to  add. 

v.  N,  v.  Petition  allowed, 

N.  H. 


ALLAHABAD  HIGH  COURT* 

CIVIL  REVISION  No.  78  OF  1925. 

November  26, 1925. 
Present: — Mr.  Justice  Mukerji. 
GANPAT  RAI— DEFEND  ANT— 
APPLICANT 

versus 

FIRM  KANI  RAM-MUNNA  LAL— 
PLAINTIFF  AND  KEDAR  NATH 
— DEFENDANT — OPPOSITE  PARTY. 

Presidency  Towns  Insolvency  Act  (III  of  1909), 
ss  SO  (1),  82 — Composition  scheme,,  acceptance  of — 
Annulment  of  adjudication,  effect  of — Debts  not  proved, 
whether  discharged. 

By  the  combined  operation  of  ss.  30  (I)  and  32  of 
the  Presidency  Towns  Insolvency  Act,  the  acceptance 
by  the  Court  of  a  scheme  of  composition  and  the 
consequent  annulment  of  adjudication  operates  as  a 
discharge  of  the  insolvent  from  all  debts  which  were 
provable  in  insolvency  but  which  have  not  been 
brought  before  the  Insolvency  Court,  [p.  536,  col.  2.] 

Civil  revision  from  an  order  of  the  Judge, 
Small  Cause  Court,  Cawnpore,  dated  the 
4th  February  1925. 

Mr.  Ram  Nama  Prasad,  for  the  Appli- 
cant. 

Mr.  Shambhu  Nath  Seth,  for  the  Opposite 
Party. 

JUDGMENT.— This  petition  in  revi- 
sion is  on  behalf  of  the  defendant  and  raises 
a  question  of  law  on  which  so  far  as  this 
country  is  concerned,  there  does  not  appear 
to  be  any  authority. 


536 


RAI  v,  KANI  RAM-MUNNA  LAL. 


It  appears  that  the  defendant-applicant 
was  adjudicated  an  insolvent  by  the  Cal- 
cutta High  Cuirt  on  the  22nd  of  June  1921. 
He  presented  a  scheme  of  composition  which 
was  ultimately  accepted  by  the  High  Court 
and  the  adjudication  vas  annulled  on  the 
27th  of  September  1923.  The  respondents 
had  a  money  claim  as  against  the  petitioner 
on  the  allegation  that  the  latter  obtained 
goods  from  them  from  time  to  time  between 
the  15th  of  Juty  1916  and  the  19th  of  June 
1921,  that  he  paid  a  portion  of  the  price, 
an<J  a  small  balance  was  still  due  with  in- 
terest. On  the  completion  of  the  insolven- 
cy proceedings,  by  a  suit  instituted  on  the 
3rd  of  July  1924,  the  respondents  claimed 
a  sum  of  Rs.  109  and  odd  alleged  to  be  due 
to  (hem,  in  the  Court  of  Small  Causes  at 
Cawnpore.  The  defendantdenied  the  claim 
and  pleaded,  inter  alia,  that  the  insolvency 
proceedings  barred  the  suit.  The  learned 
Judge  held  that  the  defendant  was  liable 
and  he  further  held  that  the  proceedings  in 
insolvency  were  no  bar  to  the  maintenance 
of  the  suit. 

The  question  that  has  been  argued  before 
me  is  whether  the  insolvency  proceedings 
were  a  bar  or  not.  The  learned  Judge 
thought  that  as  the  adjudication  had  been 
annulled  the  right  of  suit  revived.  This 
is  a  view  which,  however,  has  not  been  sup- 
ported. 

The  answer  to  the  question  raised  must 
depend  on  the  interpretation  of  SB*  30  and 
32  of  the  Presidency  Towns  Insolvency 
Act,  being  Act  III  of  1909.  The  earlier 
section  runs  as  follows:-— 

"If  the  Court  approves  the  proposal, 
the  terms  shall  be  embodied  in  an  order  of 
the  Court,  and  an  order  shall  be  made  an- 
nulling the  adjudication,  and  the  provisions 
of  s.  23,  sub-ss.  (1)  and  (3)  shall  thereupon 
apply,  and  the  composition  or  scheme  shall 
be  binding  on  all  the  creditors  so  far  as  re- 
lates to  any  debt  due  to  them  from  the  in- 
polvent  and  provable  insolvency". 
j«»It  has  not  been  denied  that  the  respond- 
ents' claim  was  one  which  was  'provable  in 
insolvency1.  Section  32  has  to  be  read  along 
with  s.  30  as  it  makes  the  meaning  of  s.  30 
(1)  clear.  It  runs  as  follows: — 

"Notwithstanding  the  acceptance  and 
approval  of  a  composition  or  scheme,  the 
composition  or  scheme  shall  not  be  binding 
on  any  creditor  so  far  as  regards  a  debt  or 
liability  from  which,  under  the  provisions 
of  this  Act,  the  insolvent  would  not  be  dis- 
charged by  an  order  of  discharge  in  ingolv- 


[92  I.  0. 1928] 


ency,    unless   the  creditor  assents  to  the 
composition  or  scheme." 

Reading  the  two  sections  together  it  ap- 
pears to  my  mind  that  the  acceptance  of  a 
scheme  of  com  position  operates  as  a  discharge 
of  the  insolvent  from  all  debts  which  wefe 
provable  in  insolvency,  but  which  have  not 
been  brought  before  the  Insolvency  Court; 
A  comparison  of  the  language  used  in  these 
two  sections  with  the  language  of  s.  45, 
will,  in  my  opinion,  leave  no  room  for  doubt 
that  this  interpretation  is  the  correct  inter- 
pretation. The  sections  in  the  English  Law 
(Bankruptcy  Act,  1914)  whteh  correspond 
with  ss.  30  (1)  and  32  of  the  Indian  Act  are 
ss.  16  and  17.  The  language  employed  in 
B.  16  (13)  is  very  similar  to  the  language 
employed  in  s.  30  (1)  of  the  Presidency 
Towns  Insolvency  Act  and  s.  17  of  the  Eng- 
lish Law  corresponds  with  s.  32  of  the  Indian 
Act.  Under  the  English  Law  it  has  been  held 
that  where  a  composition  scheme  is  accept- 
ed and  approved  the  debtor  would  get  the 
same  relief  as  is  given  by  a  discharge,  vide 
Flint  v.  Barnard  (1)  and  Seaton  v.  Lord 
Deerhurst  (2). 

On  the  language  of  the  Act  and  on  author- 
ity it  is  clear,  therefore,  that  the  suit  in  the 
Court  below  was  not  maintainable. 

If  we  look  to  the  principle  of  the  whole 
enactment  we  shall  at  once  see  that  this 
would  be  the  only  rule  consistent  with  prac- 
ticability. When  a  debtor  takes  shelter 
in  an  Insolvency  Court,  he  cannot  have 
complete  protection  unless  a  duty  be  cast  on 
all  the  unsecured  creditors  of  his  to  come 
forward  and  prove  their  claim  to  the  In- 
solvency Court.  If  it  be  within  the  com- 
petence of  such  creditors  to  keep  back  their 
debts,  so  that,  the  rule  of  limitation  per- 
mitting, they  might  come  forward  with 
their  claims  after  the  insolvent  has  beea 
discharged  or  has  managed  to  formulate  a 
scheme  for  the  payment  of  all  scheduled 
creditors,  the  very  object  of  the  law  of  insol- 
vency enactment  would  be  frustrated. 

I  hold,  therefore,  that  the  suit  of  the  plaint- 
iffs was  not  maintainable  in  the  Court 
below. 

The  learned  Counsel  for  the  respondents 
has  urged  that  even  though  the  Court  below 
was  in  error,  this  Court  should  not  exercise 
its  discretionary  power  of  revision  in  this 
particular  case.  He  urged  that  his  was  & 

H;  (1889)  22  Q.  B,  D.  20;  58  L.  J.  Q.  B.  53;  37  W.  it. 
185. 

(2)  (1895)  1  Q.  B.  853;  64  L.  J.  Q.  B.  430;  14  R.  523^ 
72  L.  T,  453;  43  W.  K,  436;  59  J.  l\  357,  2  Man»on  355/ 


I.  C,  1926J          VISRVANATH  SHAMBA  NATR  V.  RAMKRlSHtfA  MARTOBA  KA8BBKAR. 


537 


just  debt    and  the  passing  of  the  decree 
would  not  entitle  him  to  enforce  the  claim 
as  against  the  insolvent,  but    would   entitle 
him  to  go  before  the  trustees  under   the 
scheme  of  composition  and  to  obtain  such  4 
relief  as  may  be  available.    I  do  not  quite 
see  the  force  of  this  argument.    There  is 
nothing  on  the   record  to    show  that  the 
respondents  were  unaware  of  the  insolvency 
proceedings.    The  decree,  if  left  outstand- 
ing, would  be  a  source  of  constant  trouble 
to    the  petitioner,  although  he  may  have 
done  everything  that  was  in  his  power  to 
pay  his  creditors.    There  are  no   materials 
before  me  to  enable  me  to  find  out  clearly 
under  what  circumstances  the     plaintiffs' 
claim  happens  to  be  left  out  of  the  schedule 
prepared  in  the    insolvency    proceedings. 
According  to  the  petitioner  only    a  sum  of 
Rs.  4-8  was  due  to  the  respondents,  while  on 
the  respondents1  own  showing  only  a  sum  of 
Rs,  33-10-9  was  due  to  them  as  a   principal 
amount.    The  major  portion  of  the  claim 
due    is  said  to  consist  of  interest.    1  do 
think  in  the  circumstances  I  ought  to  refrain 
from  exercising  my  powers  in  revision. 

The  result  is  that  [  set  aside  the  decree 
of  the  Court  below  and  dismiss  the  respond- 
ents' suit.  The  respondents  will  pay  the 
petitioner's  costs  throughout. 

z.  K.  Decree  set  aside. 


BOMBAY  HIGH  COURT. 

CROSS- APPEALS  Nos.  163  AND  164  OF  1924. 

August  J8,  1925. 
Present: — Mr.  Justice  Fawcett  and 

Mr.  Justice  Coyajee. 

VISHVANATH  SHAMBA  NAIK— 

DEFENDANT — APPELLANT 

versus 

RAMKRI8HNA  MARTOBA 
KASBEKAR— PLAINTIFF-— RESPONDENT. 
Landlord  and  tenant — Mulgeni  tenure  -Liability  of 
land  to  inundation — Abatement  of  rent—Equity,  justice 
and     good  conscience — English   Law,  principles    o/, 
whether  to  be  followed. 

The  holder  of  a  mulgeni  tenure  in  the  Bombay  Presi- 
dency cannot  claim  abatement  of  rent  in  respect  of 
lands  comprised  in  the  tenure,  which  have  not  been 
entirely  washed  away  or  covered  by  ssa-water  or 
rendered  entirely  useless  for  cultivation  by  their 
liability  to  inundation  by  sea-water,  but  whose 
productive  powers  have  deteriorated  from  such 
liability  to  inundation,  [p.  539,  col.  2.] 

Tor  F'lwcf.'.,  ./.—In  determining  a  suit  according  to 
"equity,  justice  arid  good  conscience"  the  principles  of 
Eflglish  Law,  applicable  to  -a  similar  state  of  circu.m- 


stances,  unless  shown  to  be  inapplicable  to  Indian 
society  and  circumstances,  should  be  taken  as  a  guide, 
[p.  54U,  col  2.] 

Appeals  against  the  decision  of  the  Dis- 
trict Judge,  atKarwar,  in  Appeal *»No.  138  of 
1922,  reversing  that  of  the  First  Class 
Subordinate  Judge  at  Karwar,  in  Civil  Suit 
No.  218  of  1921. 

Mr.  tr.  P.  Murdeshivar,  for  the  Appellant. 

Mr.  Nilkant  Atmaram,  for  the  Respondent 

JUDGMENT. 

Coyajee,  J.— The  plaintiff,  (respondent 
in  Second  Appeal  No.  163  of  1924),  who 
holds  the  suit  land  on  mulgeni  tenure  under 
the  defendants  at  a  fixed  and  invariable 
rent,  sues  for  an  abatement  of  his  rent  on 
the  ground,  inter  alia,  that  the  land  has 
now  become  exposed  to  inundation  from 
the  sea.  The  Trial  Judge  dismissed  his 
suit.  But  on  appeal  his  claim  was  allowed 
by  the  learned  District  Judge,  who  says:  — 

"Appellant  relies  on  Subramania  Pathan 
v.  Kattanbath  Rama  (1).  Respondents  reply 
that  the  lease  then  in  question  was 
one  for  twenty  years  and  that  the  same 
principle  cannot  apply  in  the  case  of 
a  perpetual  tenancy;  the  proper  remedy  is 
a  surrender  of  the  tenancy  which  respond- 
ents are  willing  to  accept.  Appellant,  how- 
ever, has  a  right,  which  practically  amounts 
to  ownership.  He  is  not  willing  to  surren- 
der it  and  defendants'  readiness  to  accept 
the  surrender  shows  that  the  land  is  not 
without  value.  The  Madras  case  quoted 
recognizes  the  principle  of  abatement  in 
such  cases  and  the  question  of  the  length  of 
the  tenancy  does  not  appear  to  be  material. 
The  order  for  abatement  may  be  limited 
to  the  period  during  which  the  reason 
for  abatement  continues.  There  is  evidence 
that  the  suit  land  has  deteriorated  and  that 
the  rents  of  surrounding  lands  have  decreas- 
ed ;  this  evidence  may,  in  the  circum- 
stances, be  accepted.  I  hold,  therefore,  that 
the  appellant  is  entitled  to  abatement  on  the 
ground  of  deterioration  due  to  inundation 
from  the  sea.11 

He,  therefore,  declared  that  as  the  suit 
land  had  deteriorated  on  account  of  the  in- 
undation of  the  sea,  plaintiff  was  entitled  to 
an  abatement  of  7 5  khandis  plus  five  annas 
six  pies  cash;  the- declaration  to  remain  in 
force  until  it  was  shown  that  for  any  reason 
the  suit  land  should  bear  a  higher  rent- 
al. The  main  question  for  consideration  in 
this  appeal  is  whether  on  the  facts  of  this 

(1)  53  Ind.  Gas.  397;  43  M.  132,  10  L.  W.  367:  26  M 
I*  T,  26«;  37  M.  L,  J.  654,  (1920)  M.  W.  N.  153. 


538 


VIBHVANATH  SHAMBA  NAIK  V,  RAMKBISHNA  MAltTOBA  KA8BBKAR. 


case  the  plaintiff  is  entitled  to  proportionate 
abatement. 
It  is  urged  for  the  defendants    that  the 

General  rule  is  that  the  tenant  takes  the 
emised  premises  subject  to  any  defects 
existing  in  them  at  the  time  of  the  letting; 
and  to  any  events  which  subsequently 
affect  their  value  (Halsbury's  Laws  of 
England,  Vol.  XVIII,  e.  962).  This  rule 
is,  however,  subject  to  exceptions;  and 
it  is  urged  that  in  the  events  that  have 
happened  the  plaintiff's  only  remedy  is  the 
one  to  be  found  in  s.  108  (e)  of  the  Transfer 
of  Property  Act,  1882,  which  is  in  'these 
terms: 

."If  by  fire,  tempest  or  flood,  or  violence 
of  an  army  or  of  a  meb,  or  other  irresistible 
force,  any  material  part  of  the  property  be 
wholly  destroyed  or  rendered  substantially 
and  permanently  unfit  for  the  purposes  for 
which  it  was  let,  the  lease  shall,  at  the 
option  of  the  lessee,  be  void." 

The  provisions  of  that  section,  however, 
are  not  in  terms  applicable  to  this  case  for 
two  reasons:  (I)  the  Act  was  not  extended 
to  the  Bombay  Presidency  until  January  1, 
1893;  therefore,  its  provisions  do  not  affect 
the  rights  and  liabilities  arising  out  of  the 
legal  relation  which  in  this  case  was  consti- 
tuted by  the  agreement  (Ex.  39),  in  the  year 
1889  (see  s.  2);  and  (2)  this  being  a  lease 
for  uirri'-ul'.-.iral  purposes,  the  provisions  of 
s.  108  (e)  do  not  apply  to  it  (s.  117).  That  being 
so  it  is  contended  for  the  plaintiff  that  his 
right  to  claim  abatement  is  founded  on  the 
principles  of  natural  justice  and  equity  and 
that  it  was  recognized  in  this  country  before 
the  enactment  of  the  said  Act.  The  plaintiff's 
contention,  it  is  said,  derives  support  from 
the  jtidgment  of  Sir  Barnes  Peacock,  O.J.,  in 
Sheik  Enayutoollah  v.  Sheik  Elaheehuksh  (2V 
In  that  case  the  tenant  sued  for  an 
abatement  of  his  rent  upon  the  ground  that 
a  part  of  his  land  had  been  washed  away, 
and  that  a  part  of  it  had  been  covered  with 
sand.  The  learned  Chief  Justice  referred 
to  the  following  passage  in  Bacon's  Abridg- 
ment, 7th  Edition,  Vol.  VII,  page  t)3 
(page  43*): 

"  ..if  part  of  the  land  be  surrounded  or 
covered  with  the  sea,  this  being  the  act  of 
God,  the  tenant  shall  not  suffer  by  it,  be- 
cause the  tenant,  without  his  default,  wants 
the  enjoyment  of  part  of  the  thing  which 
was  the  consideration  of  his  paying  the 

(2)  W.  Ii.  1864,  Act  X  Rul  42. 


[92  I.  0. 

rent;  nor  has  the  lessee  reason  to  complain, 
because,  if  the  land  had  been  in  his  own 
hands,  he  must  have  lost  the  benefit  of  so 
much  as  the  sea  has  covered. " 
His  Lordship  then  proceeds  (page  43*): 
"We  think  that  that  rule  is  founded  on 
the  principles  of  natural  justice  and  equity, 
that  if  a  landlord  let  his  land  at  a  certain 
rent  to  be  paid  during  the  period  of  occupa- 
tion, and  the  land  is,  by  the  act  of  God, 
put  in  such  a  state  that  the  tenant  cannot 
enjoy,  the  tenant  is  entitled  to  an  abate- 
ment. The  first  question  then  is,  whether 
there  was  any  stipulation  in  the  kabuliyat, 
which  precluded  the  tenant  from  claiming 
abatement  if,  by  the  act  of  Gad,  any  por- 
tion of  his  land  were  washed  away/* 

The  case  was  then  directed  to  be  sent 
back  to  sthe  first  Court  to  try  upon  the 
merits,  whether  the  kabuliyat  contained  any 
stipulation  that  the  tenant  should  not  have 
an  abatement,  if  part  of  the  land  should  be 
washed  away.  Then  comes  the  following 
passage  on  which  the  plaintiff  relies  (page 
44*): 

"If  the  Judge  find  that  the  terms  of  the 
kabuliyat  do  not  preclude  the  tenant  from 
claiming  an  abatement  in  proportion  to  the 
land  washed  away,  the  case  will  have  to  be 
tried  upon  the  merits,  whether  any  portion 
of  the  land  was  washed  away,  and  whether 
any  portion  of  it  was  subsequently  regained, 
because  on  that  will  depend  whether  the 
tenant  is  entitled  to  any  and  what  abate- 
ment. If  the  land  was  re-formed,  the  abate- 
ment would  cease  from  the  time  the  regain- 
ed land  became  as  good  as  it  was  before;  if 
it  was  not  so  good,  the  tenant  would  be  en- 
titled to  an  allowance  for  the  injury  done 
by  the  act  of  God.  With  regard  to  the 
land  alleged  to  have  been  covered  by  sand, 
the  Judge  of  the  first  Court  will  have  to 
enquire  if  that  portion  was  covered  by  sand, 
and  there  by  deteriorated,  or  rendered  wholly 
useless;  because  if  the  land  has  been  deterio- 
rated, or  rendered  wholly  useless  by  the  act 
of  God,  the  tenant  would  be  entitled 
to  an  abatement,  provided,  there  was  no  sti- 
pulation to  the  contrary  in  the  kabuliyat.'' 

I  was  at  one  time  inclined  to  think  that 
the  plaintiff's  contentions  did  derive 
support  from  the  observations' quo  ted  above. 
On  further  consideration,  however,  I  agree 
with  my  learned  brother  in  the  view  that 
the  learned  Chief  Justice  was  dealing  with 
a  case  where  apart  of  the  land  had  been 
completely  washed  away,  and  another  part 


VISHVANATH  9HAMBA  NATK  V.  RAM  KRISHNA  MARTOBA  KASBEKML 


[92 1.  C.  1926] 

had  been  covered  with  sand  so  as  to  render 
it  wholly  useless  for  cultivation.  The  judg- 
ment of  Sir  Barnes  Peacock  was  followed 
in  Subramania  Pathan  v.  Kattambath  Rama 
(I)  as  being  in  accordance  with  principles  of 
natural  justice.  But  that  was  a  case  of  a  por- 
tion of  the  demised  premises  becoming  unfit 
for  cultivation  by  reason  of  inundation  from 
the  sea.  In  Uma  Sunkur  Sirkar  v.  Tarini 
Chunder  Singh  (3)  the  patnidar  was  allow- 
ed abatement  of  rent  on  the  ground  that  part 
of  the  land  included  in  the  patni  tenure  had 
been  acquired  by  the  Government  for  public 
purposes,  although  the  kabuliyat  executed 
by  him  contained  the  provision  that  he  would 
make  no  objection  on  the  score  of  djluvion 
or  any  other  cause  to  pay  the  rent  fixed  or 
reserved  by  (the)  kabuliyat.  The  ground  of 
the  decision  was  that  the  parties  must  be 
taken  to  have  left  the  question  as  to  abate- 
ment of  rent  to  the  general  law  of  the  coun- 
try. It  was,  however,  a  case  of  total  loss  of 
enjoyment  of  a  part  of  the  land  held  under 
the  patni  lease. 

The  general  rule  is  thus  enunciated  in 
Story's  Equity  Jurisprudence,  3rd  English 
Edition,  s.  101  (page  48):  — 

"In  matters  of  positive  contract  and  obliga- 
tion, created  by  the  party  (for  it  is  different 
in  obligations  or  duties  created  by  law),  it 
is  no  ground  for  the  interference  of  equity, 
that  the  party  has  been  prevented  from 
fulfilling  them  by  accident;  or,  that  he  has 
been  in  no  default;  or,  that  he  haa  been 
prevented  by  accident  from  deriving  the 
full  benefit  of  the  contract  on  his  own  side... 
The  reason  is,  that  he  might  have  provided 
for  such  contingencies  by  his  contract,  if 
he  had  so  chosen;  and  the  law  will  presume 
the  intentional  general  liability,  where  he 
has  made  no  exception." 

In  this  country  Courts  have  long  recogniz- 
ed the  tenant's  right  to  an  abatement  of  rent 
where  the  property  demised  is  lost,  wholly  or 
in  part,  by  causes  beyond  his  control.  In 
this  case,  the  lower  Court  finds  that  the  pro- 
ductive capacity  of  the  land  has  decreased 
by  reason  of  the  inundation,  but  the  land 
has  not  become  wholly  unfit  for  cultivation. 
Local  laws,  applicable  to  various  other  pro- 
vinces (e.  g.,  the  Punjab  Tenancy  Act,  1887, 
and  the  North- Western  Provinces  Tenancy 
Act,  1901)  do  enable  a  tenant  to  sue  for 
abatement  of  rent  of  the  ground  that  the 


(3)  0  0.   571;    11  0.  L.  R.  366;  4  lud,  Deo,  (N,  s.) 
1028, 


539 


productive  powers  of  the  land  held  by  him 
have  been  decreased  by  causes  beyond  his 
control.  There  is  no  such  enactment  in 
force  in  this  Presidency,  and  the  plaintiff 
has  not  alleged  or  proved  such  usage. 

On  a  fuller  consideration  of  the  subject,  I 
concur  with  my  learned  brother  in  the  order 
which  he  has  proposed  in  Second  Appeal 
No,  163,  It  follows  that  Second  Ap- 
peal No.  164  fails  and  must  be  dismissed 
with  costs.  The  only  question  argued  in 
that  appeal  was—what  rent  was  the  plaint- 
iff liable  to  pay  from  1915-1916  to  1920- 
1921?  The  defendant  obtained  a  decree 
for  the  stipulated  rent  for  that  period  in 
Small  Cause  Suit  No.  491  of  1921.  That 
suit  was  decided  in  accordance  with  the 
findings  recorded  by  the  Trial  Court  in 
this  case.  The  decree  is  not  appealable. 
Moreover,  if  the  plaintiff  is  not  entitled  to 
an  abatement,  he  is  liable  to  pay  the  sti- 
pulated rent. 

Fawcett,  J. — In  this  case,  the  main 
question  is  whether  abatement  of  rent  can 
be  claimed  for  land,  which  has  not  been 
entirely  washed  away  or  covered  by  sea- 
water,  or  rendered  entirely  useless  for  culti- 
vation by  its  liability  to  inundation  by 
sea-water.  The  facts  found  here  are  that 
the  land  can  still  be  cultivated  but  its 
productive  powers  have  deteriorated  from 
its  liability  to  inundation  at  high  water. 
Paddy  can  still  be  raised  though  of  an 
inferior  kind  to  that  formerly  grown. 

There  is  no  legislation  in  the  Bombay  Pre- 
sidency such  as  there  is  in  other  parts  of 
India,  (c/.,  Bengal  Act  VIII  of  1885,  ss.  38 
and  52  ;  Bengal  Act  VI  of  1908,  ss.  35  and 
36  ;  Central  Provinces  Act  XI  of  1898,  ss.  15 
and  18;  Madras  Act  I  of  1908;  ss.  36,  39 
and  42  ;  Oudh  Act  XXII  of  1868,  ss,  18,  29 
and  35B  ;  Punjab  Act  XVI  of  1857,  ss.  20— 
26  ;  United  Provinces  Act  II  of  1901,  ss.  41 
—48)  which  permits  of  abatement  of  rent 
in  the  case  of  such  deterioration  as 
opposed,  to  the  case  of  total  loss  of  the 
land  held  on  tenancy,  or  part  thereof.  The 
Bombay  Land  Revenue  Code  also  contains 
no  provisions  for  abatement  of  assessment, 
except  in  the  case  of  land,  not  less  than 
half  an  acre  in  extent,  being  lost  bydilu- 
vion  (s.  47  of  Bombay  Act  Vof  1879,  as 
amended  by  Bombay  Act  [Vof  1913). 

The  contract  between  the  parties  gives 
no  ground  for  a  revision  of  the  rent  be- 
cause of  this  deterioration.  It  fixes  the 
rent  "  from  generation  to  generation,"  i.e., 
in  perpetuity  :  and  (so  far  as  its  terms  are 


540 


VISHVANATH  8HAMBA  NAIK  V.  RAMKRISHNA  MARTOBA  KASB8KAR.        [92  I,   0.  19*8] 


concerned)  just  as  the  landlord  could  not 
claim  to  enhance  the  rent  because  the 
land  became  more  productive  from  some 
accidental  circumstance  after  the  *  mulgeni' 
lease  was  granted,  so  in  principle,  I  think 
the  grantee  cannot  claim  a  reduction  of 
rent  because  of  the  deterioration  of  the 
soil.  The  Bombay  Gazetteer  (Kanara), 
Vol.  XV,  Part  II,  page  186,  describes 
'mulgenidars'  like  the  plaintiff  as  "a  class  of 
people... who  on  condition  of  the  payment 
of  a  specified  invariable  rent  to  the  muli  or 
landlord  and  his  successors  obtained  from 
him  a  prepetual  grant  of  a  certain  portion 
of  land  to  be  held  by  them,  and  their  heirs 
for  ever.... The  landlord  and  his  heirs  were 
precluded  from  raising  the  rent  of  the 
permanent  lessee."  It  also  points  out  that 
a  difficulty  arose  out  of  the  Survey  Settle- 
ment sometimes  fixing  an  assessment  in 
excess  of  the  rent  fixed  in  the  mulgeni  deed, 
and  consequently  "  most  of  the  mulgeni 
deeds  executed  since  the  Survey  began  to 
contain  the  stipulation,  that  if  the  assess- 
ment is  increased  the  lessee  will  pay  the 
enhanced  amount."  The  mulgeni  lease  in 
this  case  (Ex.  39)  contains  this  latter  stipu- 
lation; and  an  inference,  therefore,  arises 
that  (at  any  rate  so  long  as  the  land  leased 
remained  available  for  cultivation)  the  fixed 
rent  should  be  invariable  and  not  liable  to 
enhancement  except  in  the  one  case  stipu- 
lated for,  viz.,  the  Government  assessment 
being  increased. 

Prima  facie,  therefore,  it  seems  tome  to 
be  a  case  where  the  p]nglish  Law  should  be 
followed.  This  is  that  (subject  to  certain 
well-defined  exceptions)  the  rent  fixed  by 
agreement  must  be  paid,  although  the 
lessee  suffers  from  an  uncontrolabla  cir- 
cumstance like  the  one  under  consideration. 
Thus  Addison's  Law  of  Contracts,  llth  Edi- 
tion, page  674,  states  the  law  as  follows: — 
14  Although,  therefore,  houses  become 
ruinous  and  fall  down,  and  fences  and  crops 
be  destroyed  by  floods,  or  burned  by 
lightning  or  accidental  fire,  or  be  thrown 
down  by  enemies,  yet  is  the  tenant  liable  to 
pay  the  rent  so  long  as  the  land  remains 
to  him,  and  his  legal  title  to  the  occupation 
and  use  thereof  continues."  I  may  refer  also 
to  Halsbury's  Laws  of  England,  Vol. 
XVIII,  Art.  962  at  page  481,  and  the  case  of 
Earl  of  Meath  v.  Cuthbert  (4)  which  relates 
to  premises  near  the  sea- shore,  that  became 

(4)  (1876)  Ir,  R.  10  C,  L,<395, 


devastated  by  the  sea,  but  not  "  altogether 
and  inevitably  submerged."  It  is  only 
when  a  part  of  the  premises  leased  is  entire- 
ly lost  by  inundation  of  the  sea  that  English 
Law  allows  an  abatement  of  rent  on  that 
account :  cf  ,  Halsbury's  Laws  of  England, 
Vol.  XVI,  Art.  964  at  page  484.  This 
is  on  the  principle  stated  in  Bacon's 
Abridgment,  7th  Edition,  Vol.  VII, 
page  63,  that  4<  it  seems  extremely  reason- 
able that,  if  the  use  of  the  thing  (de- 
mised) be  entirely  lost  or  taken  away  from 
the  tenant,  the  rent  ought  to  be  abated  or 
apportioned,  because  the  title  to  the  rent 
is  founded  upon  this  presumption,  that  the 
tenant  enjoys  the  thing  during  the  con- 
tract." 

The  principles  of  English  Law,  appli- 
cable to  a  similar  state  of  circumstances, 
unless  shown  to  be  inapplicable  to  Indian 
society  and  circumstances,  are  to  be  taken 
as  a  guide  in  determining  a  suit  according 
to  "justice,  equity  and  good  conscience" 
under  s.  26  of  the  Bombay  Regulation  I V  of 
1827,  c/.,  Webbe  v.  Lester  (5),  Varden  Seth 
Sam  v.  Luckpathy  Royjee  Lallah  (6)  and 
Waghela  Rajsanji  v.  tihekh  Masludin  (7). 
I  can  see  no  sufficient  ground  for  holding 
theEnglish  Law  inapplicable  to  the  condi- 
tion ot  a  case  like  the  present,  especially 
in  view  of  the  intended  permanency  of  the 
rent  that  I  have  already  mentioned.  ' 

Nor  do  I  think  that*  there  is  any  real 
authority  for  a  different  rule  being  applied 
in  India,  apart  from  special  legislation  on 
the  subject,  such  as  I  have  already  alluded 
to.  In  Sheik  Enayutoollah  v.  Sheik  Elahee- 
buksh  (2)  the  Court  expressly  follows  the 
rule  laid  down  in  the  B  icon's  Abridgment 
that  I  have  mentioned,  and  ways  (page  43*): — 
"  We  think  that  that  rule  is  founded  on  the 
principles  of  natural  justice  and  equity, 
that  if  a  landlord  let  his  land  at  a  certain 
rent  to  be  paid  during  the  period  of  occu- 
pation, and  the  land  is,  by  the  act  of  God, 
put  in  such  a  state  that  the  tenant  cannot 
ertjoy,  the  tenant  is  entitled  to  an  abate- 
ment "  Accordingly  it  was  held  that  un- 
less there  was  any  stipulation  in  the  agree- 
ment of  tenancy  to  the  contrary,  the  tenant 
was  entitled  to  an  abatement  of  rent  for 
any  part  of  the  land  washed  away.  It  is 
true  that  an  inquiry  was  also  ordered  whe- 

(3)  2  B.  H.  C  K.  52  at  p.  56. 

(6)  9  M.  I.  A.  303;  Marsh.  461;   1  Suth.  P.  0.  J.  480;  1 
Sar.  P.  0.  J.  857;  19  E.  R.  756. 

(7)  11  B.  551  at  p.    561;  14  I.  A    89;  11    Ind.  Jur. 
335,  5  8ar.  fr.  Q.  J.  16;  6  Jnd.  Dec.  (N.  B.)  364  (P.  0.). 

W.K.  im.~[  ~~~= 


[9&  I.  0.  1926]  RAOHARLA  NARAYANAm  V. 

ther  some  of  the  land  (page  44*)  "  was  cover- 
ed by  sand,  and  thereby  deteriorated,    or 
rendered  wholly  useless,"  because  in   that 
case  also  there  would  be  a  similar  right  to 
abatement ;  but  this  must  be  read  with  the 
first  sentence  of  the  judgment  which  says 
(page  43*)  "the  appellant  sues  for  an  abate- 
ment of  his  rent,  upon  the  ground  that... 
a  part  of  it  (i.e.,  his  land)  had  been  covered 
with,  sand,  from  which  we  understand  that 
it  was  so  covered  with  sand  as  to  have  been 
rendered  wholly  useless"    The  words  ^de- 
teriorated or  rendered  wholly  useless  "  at 
the  end  of  the  judgment  can,  therefore,  be 
read  as  equivalent  to  "  deteriorated  so  as  to 
be  rendered  wholly  useless ;"  and  it  is,  I 
think,    unreasonable    to    think    that    Sir 
Barnes  Peacock,  intended  to  make  a  depar- 
ture, from  the  rule  that  there  must  be  an 
entire  loss  of    enjoyment,    which    is    the 
evident  basis  of  his  judgment.    If  he  did 
intend  this,  then  he  was  probably  thinking 
of  s.  18  of  Act  X  of  1*59,  which  is  mention- 
ed in  his  judgment  and  which  specifically 
allowed  an  occupancy  raiyat  to  claim  an 
abatement  not  only  for  loss  of  land  "by 
diluvion  or  otherwise,1'  but  also    "if    the 
value    of  the  produce  or    the    productive 
powers  of  the  land  have  been   decreased  by 
any  cause  beyond  the  power  of  the  raiyat" 
But  this  is  improbable,  as  he  was  dealing 
with  the  case  on  the  basis  that  the  appel- 
lant, not  having  a  right  of  occupancy  could 
not  rely  on  this  s.  18. 

I  know  of  no  other  authority  that  can  be 
cited,  apart  from  its  being  based  on  some 
statutory  right  like  the  one  just  mentioned, 
for  allowing  abatement  for  mere  deteriora- 
tion of  the  productivity  of  the  land.  Subra- 
mania  Pathan  v.  Kattambath  Rama  (I) 
which  is  relied  upon  by  the  District  Judge 
in  his  judgment,  was  a  case  of  land  flooded 
by  sea-water  and  so  rendered  unfit  for 
cultivation,  Sukhraj  Rai  v.  Ganga  Dayal 
Singh  (8)  also  appears  to  have  been  a  case 
of  permanent  deterioration  rendering  the 
land  totally  unfit  for  cultivation  (see  at 
pages  666,  667  and  669);  and  even  if  it 
were  not,  there  are  statutory  provisions 
enabling  the  Courts  of  the  Central  Pro- 
vinces to  alloAv  abatement.  Uma  Sunkur 
Sircar  v.  Tarini  Chunder  Singh  (3)  which 
is  also  referred  to  in  my  learned  brother's 
judgment,  is  a  case  of  loss  of  the  land  by 
its  acquisition  by  Government  held  to 
(8j  63  Ind,  Gas.  219;  6  P.  L.  J.  665  at  p.  666;  2  P. 
L.  T.  569;  (1922)  Pat.  132;  (1922)  A.  I.  R.  (Pat.)  169. 


KONDIGI  BHEBIfAPPA.  541 

be  '*  ejusdem  generis  (of  the  same  kind)  with 
diluvion  "  (see  at  page  572*). 

The  plaintiff  is,  no  doubt,  under  s.  26  of 
the  Bombay  Regulation  IV  of  1827,  entitled 
to  rely  on  "the  usage  of  the  country  in  which 
the  suit  arose ;"   but  no  such    usage  was 
pleaded  in  the  plaint  or  attempted  to   be 
proved    at    the    trial.    An   usage  can    of 
course  be  established  by  judicial  authority. 
But  I    can  see  no    sufficient    ground    for 
holding  that  it  is  part  of  the  general  law  of 
the  country  recognized  by  the  Courts,  that 
a  tenant  can  get    abatement  of    rent    for 
anything  lees  than  total  unfitness  of  part  of 
his  land  for  cultivation,  falling  within  the 
rule  in  Bacon's    Abridgment  that  I  have 
mentioned.    The  mere  fact  that  statutory 
rights  to    abatement  of  rent  on  a   lesser 
ground  like  that  now  in  question  have  been 
created  in  other  Provinces,  does  not  justify 
the  view  that  such  a  right  exists,  as  part  of 
the  general  law  of  the  country.    On    the 
contrary,  1  think,  it  indicates  that  it  was 
considered  necessary  to  legislate,  in  order 
to  create  such  a  right.    The  enactments  are 
in  an  ordinary  form,  not  in  that  of  affirma- 
tory  legislation. 

Accordingly,  as  there  is  no  legislation 
in  force  here  to  help  the  plaintiff-respon- 
dent, I  think  that  the  District  Judge  was 
not  justified  in  law  in  reversing  the  Trial 
Court's  decree,  dismissing  the  plaintiff's 
suit  with  costs.  1  would,  therefore,  allow 
the  Appeal  No.  163  of  1924,  reverse  the 
lower  Appellate  Court's  decree,  and  restore 
the  Trial  Court's  decree  with  costs  against 
the  plaintiff-respondent  in  this  Court  and 
the  lower  Appellate  Court. 

I  agree  with  my  learned  brother  that 
Second  Appeal  No.  164  of  1924  fails  and 
should  be  dismissed  with  costs. 

zj^ Appeal  dismissed. 

"Page  of  9  C.— (M]  " - 


MADRAS  HIGH  COURT. 

CIVIL  MISCELLANEOUS  APPEAL  No  49 

OF  1923. 

September  23,  1925. 
Present: — Mr.  Justice  Devadoss  and 

Mr.  Justice  Waller. 

RACHARLA  NARAYANAPPA— 

PETITIONER  —APPELLANT 

versus 

KONDIGI  BHEEMAPPA  AND  OTHEBS— 
RESPONDENTS. 

Provincial  Iiuolvency  Act  (V  of  1920),  0&  10,  &{, 


542 


RALSHBT  MAttADSHE*  YEKAWbB  9.  &ARI  lUBtTRAO  fcANfi.  [92  L  0.  1926] 

when  he  made  his  application  to  the  lower 


Debtor's  petition  to  be  adjudicated  insolvent—  Prima 
frtcie  evidence  of  inability  to  pay  debts— Inquiry  as  to 
reality  of  debts,  whether  proper, 

When  *a  person  presents  a  petition  to  be  adjudicated 
an  insolvent,  the  petition  itself  is  treated  as  an  act 
of  bankruptcy  under  the  Insolvency  Law.  And 
where  he  states  that  his  liabilities  are  more  than  his 
assets,  that  must  be  taken  as  prima  facie  evidence 
that  he  is  unable  Jo  meet  his  liabilities  which  is 
the  _•"!•.;/.  r  ,  has  to  consider  for  the  pur- 
pose "  :.  ,  /  ;.  debtor  an  insolvent. 

No  inquiry  ought  to  be  held  at  that  stage  as  to 
the  reality  of  the  debts.  Such  an  inquiry  into  the 
bona  fides  of  the  insolvent  is  proper  only  when  he 
applies  for  discharge  and  not  before. 

Appeal  against  an  order  of  the  District 
Court,  Anantapur,  in  I.  P.  No.  4  of  1922. 

Mr.  B.  Somayya,  for  the  Appellant. 

Mr.  C.  V.  Ananthakrishna  Iyer,  for  the 
Respondent. 

JUDGMENT.— This  is  an  appeal 
against  the  order  of  the  District  Judge  of 
Anantapur,  dismissing  the  appellant's  peti- 
tion to  be  adjudicated  an  insolvent.  The 
appellant  stated  in  his  petition  that  he  had 
debts  to  the  extent  of  Rs.  25,018-4-0  and 
that  his  properties  were  worth  about 
Rs.  10,000;  and  he  further  stated  that  he 
was  unable  to  meet  his  liabilities.  The 
learned  Judge  dismissed  his  application  on 
the  ground  that  he  was  not  satisfied,  that 
the  petitioner  was  unable  to  pay  his  debts. 
When  a  person  presents  a  petition  to  be 
adjudicated  an  insolvent  that  petition 
itself  is  treated  as  an  act  of  bankruptcy 
under  the  Insolvency  Law.  And  when  he 
says  that  his  liabilities  are  more  than  hie 
assets,  that  must  be  taken  as  some  evidence 
that  he  is  unable  to  meet  his  liabilities. 

Under  s.  24  of  the  Provincial  Insolvency 
Act  where  a  debtor  is  the  petitioner,  he 
shall  be  required  to  furnish  such  proof  as 
to  satisfy  the  Court  that  there  are  prima 
facie  grounds  for  believing  the  same. 
Under  s.  25,  the  Court  shall  dismiss  the 
petition  if  it  is  not  satisfied  of  his  right  to 
present  the  petition.  In  this  case,  the 
learned  Judge  has  taken  evidence  to  con- 
eider  whether  some  of  the  debts  mentioned 
in  his  petition  are  real  debts.  Such  an 
enquiry  should  not  be  held  for*  the  purpose 
of  considering  whether  the  application  of 
the  appellant  should  be  granted  or  not. 
An  enquiry  into  the  bona  fides  of  the  in- 
solvent should  be  held  when  he  comes  up 
for  discharge  and  not  before.  What  the 
Court  has  to  do  is  to  see  whether  prima 
facie  the  person  applying  to  be  adjudicated 
insolvent  is  unable  to  pay  his  debts.  It 
cannot  be  said  in  this  case  that  the  appel- 
lant was  able  to  pay  his  debts  at  the  time 


Court.  On  the  evidence  on  record,  we  do 
not  think  there  are  no  prima  facie  grounds 
for  believing  that  the  appellant  is  unable 
to  pay  his  debts. 

We  set  aside  the  order  of  the  District 
Judge  and  remand  the  petition  for  fresh 
disposal. 

We  make  no  order  as  to  costs. 

V.  N.  V. 

Appeal  allowed. 


BOMBAY  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  502  OF  1924. 

August  21,  1925. 

Present: — Sir  Norman  Macleod,  KT., 

Chief  Justice,  and  Mr.  Justice  Coyajee. 

BALSHET  MAHADSHBT  YBKAWDE 

— DEFENDANT — APPELLANT 

versus 

HARIBABURAO  RANE— PLAINTIFF 
— RESPONDENT. 

Bombay  Khoti  Settlement  Act  (I  of  1880),  s.  S3,  r.  II 
(1}  (b) — Landlord  and  tenant — Rent  payable~~13ot- 
khat,  entry  in,  value  of — Arrangement,  unauthorised, 
between  khot  and  tenant,  whether  can  be  enforced 

The  whole  scheme  of  e  33  of  the  Bombay  Khoti 
Settlement  Act  is  to  prevent  arrangements  being  made 
in  an  unauthorised  way  by  the  khots  with  the  tenants 
contrary  to  the  terms  of  the  bot-khat.  Rule  II  (1)  (b) 
under  the  section  provides  that  if  there  is  any  agree- 
ment between  the  parties  after  the  amount  of  rent 
has  been  fixed  in  the  bot-khat,  then  the  parties  should 
appear  in  person  or  by  duly  authorised  agent  before 
the  Recording  Officer  and  consent  to  the  entry  being 
made  altering  the  terms  under  which  the  tenant  holds 
the  lands.  Where  the  agreement  is  not  given  effect 
to  in  this  manner,  the  rights  and  obligations  of  the 
parties  continue  to  be  regulated  by  the  terms  of  the 
entries  contained  in  the  bot-khat  and  the  agreement 
cannot  be  given  effect  to.  [p.  543,  cols.  1  &  2;  p.  544, 
col.  1  ] 

Second  appeal  from  a  decision  of  the 
First  Class  Subordinate  Judge,  A.  PM  at 
Ratnagiri,  in  Appeal  No.  67  of  1923,  confirm- 
ing a  decree  of  the  Joint  Subordinate  Judge 
at  Deoghad,  in  Civil  Suit  No.  4S6  of  19^1. 

Mr.  A  G.  Desai,  for  the  Appellant. 

Mr.  P.  B.  Shingnc,  for  the  Respondent. 
JUDGMENT. 

Macleod,  C.  J. — The  plaintiff  sued  to 
recover  possession  of  the  suit  property 
alleging  that  the  same  belonged  to  him, 
having  been  rented  by  the  defendant  under 
a  rent-note  dated  May  5,  1913,  The  defend- 
ant raised  various  defences  to  which  I  am 
not  going  to  refer  in  detail.  It  is  sufficient 
to  say  in  passing  that  they  did  defendant 
little  credit,  and  only  raised  a  prejudice 


BALSH1T  M1HAD3HET  YEKAWDB  V.  HABl"BABU!UO  RANK. 


£92 1.  A  1926] 

against  him  in  the  Courts.  In  the  Trial 
Court  he  attempted  to  show  that  the  lavan- 
chitti,  Ex.  12,  was  obtained  by  mis- 
representation, but  failed  to  prove  that. 
So  it  was  held  that  he  was  bound  by  the 
lavanchitti,  and  that  he  forfeited  his  occu- 
pancy rights  by  having  failed  to  pay  rent 
for  five  years. 

It  cannot  "be  disputed  that  the  defend- 
ant's name  was  in  the  bot-khat  as  an  occu- 
pancy tenant,  paying  rent  according  to  the 
appraisement.  That  would  give  the  plaint- 
iff kh ot  about  eight  maunds  of  paddy  an- 
nually. According  to  the  lease  the  tenant 
had  to  give  six  maunds  and  was  not  liable 
to  enhancement.  But  the  Judge  omitted 
to  notice  that  the  defendant  had  to  pay 
assessment,  and  as  the  cash  payment  for  six 
maunds  was  Rs.  12,  and  the  assessment  was 
"Rs.  4-0-6,  it  seems  obvious  that  the  rent 
payable  under  the  lavanchitti,  taken  to- 
gether with  the  assessment,  was  practically 
the  same  as  the  defendant  had  to  pay 
under  the  bot  khat.  The  Trial  Judge  gave 
the  plaintiff  a  decree  directing  that  the 
defendant  should  deliver  possession  of  the 
land  described  in  the  plaint,  and  payRs.  72 
as  rent  for  the  six  years  in  arrears.  He 
further  directed  an  inquiry  with  regard  to 
mesne  profits. 

In  appeal  the  Judge  said  that  the  only 
point  was  whether  the  lavanchitti  had  been 
fraudulently  obtained  by  the  plaintiff  as 
alleged  by  defendant.  He  found  that  issue 
in  the  negative,  and  agreed  in  other  respects 
with  the  Trial  Court.  Only  he  thought 
that  as  plaintiff  has  taken  Rs.  100  from  the 
tenant  when  the  lavanchitti  was  passed, 
the  plaintiff  ought  to  'pay  back  that  sum 
before  taking  possession, 

I  do  not  think  that  either  of  the  Courts 
below  recognised  the  importance  of  the  bot- 
khat  which  is  the  record  under  the  Khoti 
Settlement  Act  of  the  terms  according  to 
which  various  classes  of  occupants  hold 
their  lands.  Section  33  says  urent  payable 
to  the  khot  by  privileged  occupants  shall 
be  as  follows:1'  There  are  three  classes 
mentioned:  Dharekari:  QuasiDharekari, 
aid  any  permanent  tenant.  Rent  would  be 
payable  t(fn  each  case  according  to  the 
terms  of  the  entry .  in  the  Survey  Record 
made  in  respect  thereof,  and  for  the  time 
b"6ing  applicable  thereto,  under  the  follow- 
ing rules.1*  Rule  II  (1)  (6)  provides  that  if 
there  is  any  agreement  between  the  parties 
after  the  amounts  have  been  fixed  in  the 
jtot-khat,  then  the  parties  should  appear  in 


person  or  by  duly  authorized  agent  before 
the  Recording  Officer  and  consent  to  the 
entry  being  made  altering  the  terms  under 
which  the  tenants  held  the  lands. 

It  seems  to  me  that  the  whole  scheme  of 
s,  33  of  the  Khoti  Settlement  Act  is  to 
prevent  arrangements  being  made  in  an  un- 
authorised way  by  the  khots  with  the 
tenants  contrary  to  the  terms  of  the  bot-khat. 
And  in  this  case  if  the  defendant  had  ad- 
mitted that  he  held  as  occupancy  tenant 
according  to  the  terms  of  the  bot-khat,  and 
was  bound  to  pay  rent  according  to  those 
terms,  he  would  have  had  the  Courts  entire- 
ly in  his  favour.  Unfortunately  he  denied 
the  validity  of  the  lavanchitti,  he  denied 
apparently  the  plaintiff's  title  as  khot,  and 
he  asserted  that  he  was  entitled  to  hold 
the  land  on  payment  of  assessment  only. 
We  think  that  the  right  which  lay  in  the 
plaintiff  was  to  recover  the  rent  as  fixed  in 
the  bot-khat,  and  that  the  lavanchitti  was 
not  a  valid  document,  as  it  had  not  been 
registered  before  the  Recording  Officer. 

The  result  will  be  that  the  plaintiff  is  en- 
titled to  recover  rent  according  to  the  bot- 
khat.  There  is  no  reason  why  the  defend- 
ent,  considering  his  conduct,  should  not  be 
ordered  to  pay  Rs.  72  which  are  in  arrears 
according  to  the  bot-khat.  The  plaintiff, 
however,  has  already  recovered  Rs.  100 
under  the  terms  of  the  lavanchitti.  There- 
fore, we  leave  the  order  for  payment  of 
Rs.  72  as  it  stands  in  the  decree  of  the 
lower  Court,  and  we  also  declare  that  the 
defendant  is  entitled  to  set-off  any  money 
paid  by  him  to  the  plaintiff  under  the 
lavanchitti.  In  other  respects  the  suit  is 
dismissed,  but  without  costs. 

Coyajee,  J,  —  I  agree  in    holding  that 
the  lavanchitti  sued  upon    in  this  case  is 
not  valid  and  binding  on  the  defendant. 
In  the  year  1890  there   were  disputes  be- 
tween  the  khots  of  this  village  and  the 
tenants.    A  decision  was  arrived  at  by  the 
Settlement  Officer,  and  in  accordance  with 
that  *  lecision  entries  were    made  in  the 
Settlement  Records.    It  is  clear  then  that 
this  lavanchitti  executed  by  the  plaintiff  khot 
in  favour  of  the  defendant  in  the  year  1913, 
was  an    attempt  to  modify   those  entries. 
The  third    issue  framed  in  this  suit  was: 
"Can  plaintiff  challenge  the  entry  in  Sur- 
vey Records  and  is  not  defendant  an  occu- 
pancy  tenant   in  respect  of  the  lands  in 
suit?"    The  Trial  Judge  says:  "The  defend- 
ent  ceased  to  be  an   occupancy  tenant  the 
moment  he  obtained  the   lease,  Ex,  12,  and 


SUHENBRA  NATH  DAJ3  GtfPTA  V.  SATYENDEA  NAt fl, 


his  relations  with  the  plaintiff  were  govern- 
ed by  the  lease  and  not  by  the  provisions 
of  the  Khoti  Act;  hence  the  fact  that  he  is 
described  as  an  occupancy  tenant  in  the 
bot-khat  does  not  help  him  to  repudiate  the 
lease,  Ex.  12."  He  accordingly  passed  a 
decree  directing  the  defendant  to  deliver 
to  the  plaintiff  possession  of  the  suit-lands 
and  to  pay  Rs.  72  as  arrears  of  rent.  On 
appeal,  the  defendant  raised,  among  others, 
the  same  question,  but  the  Appellate  Judge 
did  not  deal  with  it.  I  am  unable  to  agree 
with  the  view  of  the  Trial  Judge.  It  was 
not  contended  before  the  lower  Court  that 
the  defendant  had  resigned  his  land.  The 
bot-khat  continues  to  show  his  permanent 
tenancy.  He  is  liable  to  pay  rent  according 
to  the  terms  of  the  entry  made  in  the 
Survey  Record.  The  agreement  as  to  rent 
contained  in  the  lavanchitti  was  not  given 
effect  to  in  the  manner  provided  by  s.  33, 
r.  II  (6),  of  the  Khoti  Settlement  Act.  In  my 
opinion,  the  rights  and  obligations  of  the 
parties  continue  to  be  regulated  by  the 
terms  of  the  entries  contained  in  the  Set- 
tlement Records, 
z,  K.  Decree  amended. 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  ORDER  No.  150  OF  1925 

WITH 
CIVIL  RULE  No.  482- M  OF  1925. 

June  1,  1925. 
Present;— Mr.  Justice  Cuming  and 

Mr.  Justice  Chakravarti. 

SURENDRA  NATH  DAS  GUPTA 

AND  ANOTHER — JUDGMENT-DEBTORS— 

— APPELLANTS 

versus 
8ATYENDRA  NATH  BHATTA- 

CHARJYA  AND  OTHERS— ACCTION- 
POROHASERS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  tf;  0.  XXI, 
r.  08—  Auction-sale — Obstruction  by  judgment-debtor — 
Proceedings  by  purchaser— Decree-holder,  whether 
party— Order  deciding  questions  between  decree-holder 
and  judgment-debtor — Appeal,  whether  lies. 

An  order  passed  under  O.  XXI,  r.  98,  0.  P.  C.,  on 
proceedings  initiated  by  the  auction-purchaser  against 
the  judgment-debtor  is  not  appealable.  Such  an 
order  does  not  become  appealable  even  though  the 
Court  decides  any  question  as  between  the  decree- 
holder  and  the  judgment-debtor  which  would  really 
be  quite  foreign  to  the  proceedings,  [p.  545,  col.  1.] 

AduramHaldar  v,  Nakuleswar  Rai  Chowdhury,t9 
Ind  Gas  137;  29  0,  L.  J.  48  and  Sasibhushan  Hooker jee 
v.  RadhanathBoae,  25  Ind.  Oas.  267;  19  0.  W.  N.  835; 
30  0.  L,  J.  433,  relied  on. 


In  proceedings  under  0.  XXI,  r.  98,  0.  P,   0.,  taken 
by  an  auction-purchaser  against  the  "•  v      «.  •  : 
the  decree-holder  qua  the   decree-holder  is  reaiiy  not 
a  party.    The  question  is  merely  between  the  judg- 
ment-debtor and  the  auction-purchaser,  and  any  ques- 
tions that  might  arise  between  the    judgment-debtor 
and    the    decree-holder    cannot    be    raised,    and  any 
decision   passed  relating   to  them  is  not  binding  as 
between  them  under  s,  47  of  the  Code,    [ibid.] 

Appeal  against  an  order  of  the  District 
Judge,  Chittagong,  dated  the  18th  of  March 
1925,  reversing  that  of  the  Subordinate 
Judge,  Second  Court  of  that  District,  dated 
the  20th  of  September  1924. 

Babu  Nripendra  Chandra  Dass,  for  the 
Appellants. 

Babus  Jogesh    Chandra    Roy  and  Paresh 
Chandra  Sen,  for  the  Respondents. 
JUDGMENT. 

Chakravarti,  J. — This  is  an  appeal 
by  the  judgment-debtor  against  an  order  of 
the  District  Judge  of  Chittagong,  dated 
the  18th  March  1925.  The  facts  are  these. 
The  properties  of  the  judgment-debtors 
were  put  up  to  sale  in  execution  of  a 
mortgage-decree  obtained  by  the  respond- 
ents-mortgagees. In  execution  of  that 
decree  the  lands  described  in  the  bound- 
aries of  the  mortgage-deed  were  sold  and 
purchased  by  the  decree-holders.  The 
decree-holders  obtained  possession  of  the 
properties  purchased  by  them  at  the  auc- 
tion-sale. In  the  proceedings  in  execution 
the  purchasers  were  obstructed  by  the 
judgment-debtors  and  by  an  application 
proceedings  under  O.  XXI,  r.  98  were 
initiated.  That  application  was  made  by 
the  auction-purchaser  and  was  headed  as 
an  application  tinder  O.  XXI,  r.  98,  C.  P.  C. 
The  learned  Subordinate  Judge  passed 
an  order  adverse  to  the  auction-purchasers 
and  it  purported  to  have  been  made  under 
the  said  rule.  Against  that  order  the 
auction-purchasers  preferred  an  appeal  to 
the  District  Judge.  The  learned  District 
Judge  in  that  appeal  construed  the  decree, 
the  mortgage-bond  and  the  sale  certificate 
and  made  an  order  in  favour  of  the  auction- 
purchasers  and  reversed  the  order  made 
by  the  Subordinate  Judge.  The  present 
appeal,  as  I  have  already  stated,  is  by  the 
judgment-debtors  against  that  order  of  the 
learned  District  Judge. 

The  first  point  argued  in  this  appeal 
was  that  the  appeal  before  the  learned 
District  Judge  was  incompetent  as  the 
Code  did  not  allow  an  appeal  against  an 
order  passed  under  O.  XXI,  r.  98.  The 
learned  Vakil  for  the  respondents  argued 
that  the  appeal  was  competent  because 


[9S  1  O  1926)  OHANDTJLAL  MAQANLAL  «.  MOTILAL  HARlLlt. 


545 


'the  questions  were  decided  between  the 
decree- holders  and  the  judgment-debtors 
under  s.  47,  O.  P.  O.,and  not  merely  ques- 
tions under  O.  XXI,  r.  98.  There  is  a  large 
number  of  cases  on  the  point  in  controversy, 
and  I  shall  refer  only  to  some  of  them, 
that  is  to  the  cases  of  Aduram  Haldar  v. 
Nakuleswar  Rai  Chowdhury  (1)  and  Sasi- 
bhushan  Mookerjee  v.  Radhanath  Bose  (2). 
In  these  cases  the  view  that  was  taken  was 
that  in  these  proceedings  the  decree-holder 
qua  decree-holder  was  really  not  a  party. 
The  question  was  merely  between  the 
judgment-debtor  and  the  auction-purchaser 
and  any  question  which  might  arise  be- 
tween the  judgment- debtor  and  the  decree- 
holder  could  not  be  raised  and  any  decision 
which  was  passed  relating  to  the  construc- 
tion of  the  decree  would  not  be  binding 
against  the  decree  holders.  In  that  view 
when  proceedings  were  initiated  by  the 
auction-purchaser  under  O.  XXI,  r,  96  and 
the  matter  was  decided  under  that  rule  it 
must  be  held  that  the  order  was  passed 
under  that  rule.  As  any  order  passed  under 
that  rule  is  not  appealable,  the  appeal  be- 
fore the  learned  District  Judge  was  not 
competent  and  any  question  which  had 
been  decided  by  the  learned  Subordinate 
Judge  in  the  order  that  he  passed  as  to  the 
construction  of  the  decree  or,  in  other 
words,  a  decision  on  the  rights  of  the  decree- 
holder  as  against  the  judgment-debtor  was 
foreign  to  the  proceedings  which  were 
before  him.  Any  such  judgment  would  not 
be  binding  upon  the  decree  holder.  Fol- 
lowing the  principle  laid  down  in  the  cases 
I  have  cited,  I  think,  the  order  passed  by 
the  District  Judge  in  appeal  was  passed 
without  jurisdiction,  as  no  appeal  lay  before 
him. 

The  result,  therefore,  is  that  we  set  aside 
his  order  and  restore  the  order  of  the  learn- 
ed Subordinate  Judge.  As  I  have  already 
stated  it  must  be  distinctly  understood  that 
any  view  taken  by  the  learned  Subordinate 
Judge  would  not  be  binding  against  the 
decree-holders  as  decree-holders.  The  ap- 
peal is,  therefore,  allowed.  But  in  the  cir- 
cumstances of  the  case  there  will  be  no 
order  as  to  costs. 

No  order  need  be  passed  in  the  Rule  which 
was  merely  for  the  stay  of  execution  during 
the  pendency  of  this  appeal. 

Cuminff,  J.— I  agree. 

N.  H.  Appeal  allowed. 

(1)  49  Ind,  Gas.  137;  29  0.  L.  J.  48. 

ft)  25  Ind,  Oaa.  267;  19  0,  W,  N,  835;  20  0.  L,  3, 433, 

35 


BOMBAY  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  246  OF  1924, 

September  22,  1925, 
Present : — Sir  Norman  Macleod,  KT.,  Chief 

Justice,  and  Mr.  Justice  Coyajee, 

CHANDULAL  MAGANLAL-DflFBNDANT 

— APPELLANT 

versus 

MOTILAL  HARILAL-PLAINTIFF— 
RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  97— Pre- 
liminary decree — Appeal — Final  decree  pasted  during 
pendency  of  appeal — Procedure. 

When  an  appeal  is  filed  against  a  preliminary  deo 
ree,  but  no  stay  of  proceedings  is  asked  for,  and  a 
final  decree  is  passed  by  the  Trial  Court  during  the 
pendency  of  the  appeal  against  the  preliminary  dec- 
ree, the  proper  course  for  the  appellant  in  such  a 
caso  is  to  put  an  appeal  on  the  file  against  the  final 
decree,  or  at  least  to  inform  the  Appellate  Court, 
when  the  appeal  against  th$  preliminary  decree  cornea 
on  for  hearing,  that  a  final  decree  has  been  passed, 
[p.  546,  col.  1.] 

First  appeal  from  the  decision  of  the 
First  Class  Subordinate,  Judge,  "at  Ahmed- 
abad,  in  Civil  Suit  No.  1324  of  1923. 

Mr.  R.  J.  Thakor,  for  the  Appellant. 

Mr.  B.  G.  Rao,  for  Mr.  G.  S.  Rao,  for  the 
Respondent. 

JUDGMENT. 

Macleod,  C.  J.— In  this  case  tha 
plaintiff  sued  to  recover  Rs.  6,721  and  costs 
and  interest  on  the  footing  of  a  registered 
mortgage-deed,  dated  January  23,  1923,  for 
Kg.  6,500.  The  defendant  admitting  the 
mortgage  pleaded  that  he  had  not  received 
a  certain  sum  of  Rs.  2,600  as  a  part  of  the 
consideration.  The  First  Class  Subordinate 
Judge  held  that  this  plea  was  bad,  and 
directed  that  after  taking,  an  account  of 
what  was  due  on  the  mortgage  the  defend- 
ant should  pay  Rs.  6,721  and  costs  of  the 
suit  with  interest  at  nine  per  cent,  from  the 
date  of  suit  till  re-payment  within  six  months 
from  the  date  of  the  decree.  In  default 
plaintiff  to  recover  this  sum  by  the  sale  of 
the  mortgaged  property.  That  decree  was 
passed  on  April  10,  1924. 

An  appeal  was  filed  to  this  Court  from 
that  decree  and  was  heard  on  August  21> 
1925.  In  the  meantime,  the  defendant  not 
having  paid  the  decretal  amount,  the  plaint- 
iff applied  for  a  decree  absolute,  and  accord- 
ingly a  decree  was  passed  for  the  sale  of 
the  mortgaged  property.  In  the  appeal 
against  the  preliminary  decree  which  came 
before  this  Courtt  we  were  not  told  that 
the  decree  had  already  been  made  absolute, 
and  that  an  order  had  been  made  for  the 
sale  of  the  property.  Consequently  in 


All  HC^Altf  -V.  MUSTAFA 

missing  the  appeal  we  directed  that  the 
time  for  payment  should  be  extended  by  six 
months  from  the  date  of  our  judgment. 

The  respondent's  Pleader  now  asks  us  to 
delete  that  order,    T:  <:•  ;r;  w.\  i-jL>l  position, 
'when  an  appeal  is  filed  against  a  prelimi- 
nary decree,  but  no  stay  of  proceedings  is 
asked  for,  and  a  final  decree  is  passed  in 
the  lower  Court  without  any  appeal  being 
filed  therefrom,  is   somewhat   obscure.    It 
seems  to  me  that  the  proper  course  for  the 
appellant  in  such  a  case  is  to  put  an  appeal 
on  the  file  against  the  decree  absolute,  or  in 
any  event  to  inform  the  Court,  when   the 
appeal     against     the   preliminary    decree 
comes  on  for  hearing,  that  a  decree  absolute 
has  been  made*    It  may  not  be  that  the 
Appeal  Courfc  is  debarred  from  hearing  the 
appeal  from  the  preliminary  decree  merely 
on  account   of    the    Court  below    having 
passed  a  final  decree.    But  to  avoid  the 
difficulties    which    may     arise    when    no 
application  has  been  made  for  stay  of  pro- 
ceedings, it  would  certainly  be  desirable 
'that,  in  any  case  where  a  preliminary  decree 
is  passed,  and  a  party  appeals  against  that 
decree,  when  the  Court  below  passes  a  final 
decree,  he  should  file  an  appeal  against  that 
decree.  ^ 

In  this  case  if  the  property  had  already 
been  sold  before  the  decision  of  the  Appeal 
Court,  it  is  difficult  to  see  how  this  Court 
could  have  set  aside  the  sale.  But  we  think 
the  fairest  order  to  be  made  now  is  that  the 
respondent-mortgagee  should  add  his  costs 
of  the  postponed  sale  and  of  the  application 
if  any  to  the  mortgage,  and  that  the  appel- 
lant-mortgagor -should  have  one  month 
from  this  day  to  pay  what  is  due.  In 
default  the  respondent  can  proceed  to  get 
the  property  sold.  The  respondent  must 
pay  the  costs  of  this  application  if  any. 

We  make  it  clear  that  the  mortgagee  is 
entitled  to  his  decretal  amount  and  interest 
and  all  his   costs,  charges  and  ^expenses. 
Those  must  be  paid  if  the  mortgagor  desires 
to  avoid  the  sale  of  the  property. 
Coyajee,  J.— I  agree. 
Z.  K.  Order  accordingly. 


[9£  T,  0,  ifi£6j 

ALLAHABAD  HIGH  COURT, 

lixECDTioN  FIRST  CIVJL  APPEAL  No,  26 

OP  1925. 

November  25, 1925. 
Present :— Mr.  Justice  Mukerji. 
Sheikh  ATA  HUSAIN— JODGMENT- 
DBBTOR—APPELLANT 

versus 

Syed  MUSTAFAHUHAINAND  AWOTHER 
—DECREE-  HOLDJERS— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.ltf,  0.  XXV, 
r.  1  (#)— Security  for  costs— Bond  hypothecating  pro- 
perty— Enforcement  of  security — Procedure — Execu- 
tion. 

Plaintiff  was  required  to  give  security  for  <iosts 
and  appellant  who  offered  himself  as  surety  executed 
a  bond  that  if  the  plaintiff  failed  to  obey  the  order 
of  the  Court  with  regard  to  the  payment  of  costs, 
certain  property  of  the  surety  specified  in  the  bond 
would  be  liable  for  the  satisfaction  of  the  order  and 
that  if  the  property  proved  insufficient  for  the  pur- 
pose the  surety  would  himself  be  liable.  Plaintiff's 
suit  was  dismissed  and  plaintiff  was  ordered  to  pay 
the  costs  of  the  suit.  Defendant  took  out  execution 
for  costs  and  applied  for  sale  of  the  property  hypo- 
thecated by  the  surety: 

Held,  (1)  that  on  the  language  of  the  bond  executed 
by  the  surety  the  defendant  was  not  bound  to  pro- 
ceed first  in  execution  against  the  plaintiff  and  only 
on  his  failure  to  obtain  satisfaction  from  the  plaint- 
iff to  proceed  against  the  surety; 

(2)  that  there  was  no  mortgage  of  his  property  by 
the  surety  and  that  the  proper  procedure  to  enforce 
the  liability  of  the  surety  under  the  bond  was  to 
proceed  in.  execution  by  sale  of  the  hypothecated  pro*- 
perty. 

Execution  first  appeal  against  a  decree 
of  the  Subordinate  Judge,  Allahabad,  dated 
the  22nd  November  1924. 
Mr.  Damodar  Da8>  for  the  Appellant* 
Dr.  K.  N.  Katju,  for  the  Respondents* 

JUDGMENT.— Two  points  of  law  have 
been  raised  in  this  appeal  and  a  third 
point,  also  of  law,  has  been  argued  with  the 
permission  of  the  Court. 

It  appears  that  Musammat  Amrit  Bibi, 
the  respondent  No. ,  2,  brought  a  suit  for 
recovery  of  her  alleged  dower-debt  from  the 
decree-holder,  respondent  No.  1,  Mustafa 
Husain,  who  was  in  possession  of  some  of 
the  property  of  the  late  husband  of  Mu» 
sammat  Amrit  Bibi,  as  an  heir  to  his  wife, 
the  daughter  of  Musammat  Amrit  Bibfs 
husband.  While  the  suit  was  pending, 
Mustafa  Husain  obtained  an  order  from  the 
Court  to  the  effect  that  the  plaintiff  Muaam- 
mat  Amrit  Bibi  must  furnish  security  for 
his  costs.  This 'security  was  furnished  by 
the  appellant  Ata  Husain,  He  gave  a  bond 
hypothecating  a  certain  property,  on  the 
25th  of  April  1«22.  The  suit  was  decided 
against  Musammat  Amrit  Bibi  and  Mustafa 
Busain  has  taken  out  execution  for 


I  0. 1926J 


ATA  HtiSAIN  0.  tf  USf  .-.FA  HUSAIN 


54? 


He  applied  for  the  sale  of  the  property 
hypothecated  by  Ata  Husain  and  also  he 
applied  for  the  attachment  and  sale  of 
certain  other  property,  said  to  belong  to 
Musammat  Amrit  Bibi. 

Ata  Husain  objected  to  the  execution  pro- 
ceeding against  him  and  his  case  is  that 
Jie  is  liable  only  after  Musammat  Amrit 
Bibi  has  been  compelled  to  pay  and  has 
failed  to  do  so  and  that  a  failure  on  the 
part  of  the  decree-holder  to  execute  the 
decree  against  Musammat  Amrit  Bibi 
amounted  to  a  release  of  his  liability.  The 
point  urged  for  the  first  time  is  that  the 
appellant's  liability  can  be  enforced  by  a 
suit  and  not  in  execution, 

As  regards  the  plea  that  execution  should 
proceed  at  first  against  the  lady,  we  have 
to  look  to  the  language  of  the  bond  itself. 
The  bond  says  that  if  the  lady  failed  to 
obey  the  order  of  the  Court  the  property 
of  the  surety  would  be  liable  and  also  he 
himself  in  case  the  property  proved  insuffi- 
cient. There  is  no  provision  for  the 
principal  debtor  being  proceeded  against  as 
a  condition  precedent  to  execution  against 
the  surety.  This  disposes  of  also  the  con- 
nected plea  that  by  not  proceeding  against 
the  principal  debtor  the  surety  has  been 
discharged.  Section  139  of  the  Contract 
Act  does  not  apply  to  the  facts  of  the  case. 
It  is  true  that  the  learned  Judge  of  the 
Court  below  suspected  that  the  judgment- 
debtor  Musammat  Amrit  Bibi  had  been  won 
over  by  the  decree-holder  Mustafa  Husaiii 
who  ia  her  son-in-law.  But  that  Court  did 
not  arrive  at  any  definite  finding.  I  agree 
with  the  Court  below  that  the  question  of 
collusion  is  immaterial,  Even  if  there  be 
any  collusion  the  decree-holder  has  done 
nothing,  no  overt  act  by  which  it  can 
be  said  that  the  principal  debtor  has  been 
released  from  liability  to  the  decree-holder 
or  that  any  remedy  of  the  surety  against 
the  principal  debtor  has  beea  impaired.  It 
is  clear,  therefore,  that  the  two  points  taken 
in  the  grounds  of  appeal  cannot  succeed. 

The  third  question  is  whether  s.  145  of 
the  0.  P.  U.  applies  and  there  can  be  no 
execution  of  the  decree  by  sale  of  the  pro- 
perty charged,  in  the  execution  depart- 
ment. This  question  cannot  be  decided 
without  having  regard  to  the  language  of 
the  bond  executed  by  the  appellant.  It  is 
to  be  noted  that  there  is  no  mortgage  in 
the  legal  sense  of  the  term.  The  appellant 
said  in  the  bond  that  the  Court  had  called 
upon  Amrit  Bibi  to  furnish  security  for 


costs  to  the  amount  of  Rs.  600  and  that, 
therefore,  the  appellant  was  offering  himself 
as  a  surety  agreeing  that  the    amount    of 
costs  payable  by  the  lady  might  be  realised 
by  sale  of  the  property  hypothecated  and 
the   balance  from  him   personally.    It   is 
clear,  therefore,  that  there  is  no  mortgage  in 
the  proper  sense  of  the  term.    There  is  no 
mortgagee  and   in  the  language  of  their 
Lordships  of  the  Privy  Council,  the   Court 
not  being  a  juridical  person  it  cannot  be 
sued,  it  cannot  take  property  and  it  cannot 
assign  the  mortgage  ;    vide,  'Raj  Raghubar 
Singh  v.  Jai  Indra  Bahadur  Singh  (1).  Thd 
bond  before    the    Privy    Council  was  in 
language  very  similar  to  the  language  of 
the    bond  now  before    me.    The    learned 
Counsel  for  the  appellant  has  relied  on  the 
case  of  Amir  v,  Mahadeo  Prasad  (2)  ^  and  it 
was  urged  that  the  Court  might  assign  the 
mortgage  to  anybody  in  order  that  the  mort- 
gage might  be  enforced  by  a    regular  suit. 
Is  was  pointed  out  in  the  course  of  the  argu- 
ment, the  observations  in  the  caseof  Amir  v, 
Mahadeo  Prasad  (2)  of  Richards,  C.  J.  at  page 
227  *  that  the  bond  could  only  be  enforced 
by  'a  regular  suit  brought    by    the  Court 
itself  or  by  some  person  to  whom  the  Court 
could  transfer  the  mortgage  for  the  purpose 
of  instituting  the  suit,  go  counter  to    the 
observations  of  their  Lordships  of  the  Privy 
Council  already  quoted.  The  position,  there* 
fore  is  this  that  there  is  a  liability  under- 
taken by  the  appellant  and  there  ought   to 
be  some   method    of  enforcing   the  same. 
The  method  can  be   by  way  of  execution 
alone  as  there  is    nobody   to    enforce    the 
mortgage  by  means  of   a   suit     This  was 
the  opinion  of  their  Lordships  of  the  Privy 
Council  in  the  case  of  Raj  Raghubar  bingh 
v    Jai    Indra  Bahadur   Singh,    (1)   and  a 
similar  view  was  taken  by  a  Bench  of  this 
Court  in  Beti  Mahalakshmi  Bai  v.  Badan 
Sinah  (3).  I  hold  that  the  surety  bond  given 
in  the  present   case   can    be  enforced   by 
execution  alone  and,  therefore,  the  order  of 
the  Court  below  was  correct. 
The  appeal  fails  and  is  hereby  dismissed 

with  costs.  ,.      ,     _, 

z   Kt  Appeal  dismissed. 

m  S5  Ind  Cas  550;  42   A   158  at  p.  167;  22  0.  0. 

S&  •  fTwWi  ttffL'Vi.VcT1 " 
l!S'St&W'A?tttt*J«IW 


$48 


O.  I.  t».  !$.  00.  tf,  CHANbULAL  SEEOPARTAP. 


[92  I.  C. 


BOMBAY  HIGH  COURT. 

ORIGINAL  CIVIL  JURISDICTION  APPEAL 

No.  65  OF  1<}25: 
September  16,  1925. 

Present: — Sir  Norman  Macleod,  KT.,  Chief 
Justice,  and  Mr.  Justice  Coyajee. 
G,  I.  P.  RAILWAY  COMPANY- 
DEFENDANTS— APPELLANTS 

versus 
CHANUULAL  8HEOPRATAP— 

PLAINTIFF— RESPONDENT. 

Railways  Act  (IX  of  1890),  ss.  77,  UO— Suit 
tigainst  Railway — Notice  to  officer  other  than  Agent, 
validity  of. 

The  mere  fact  that  the  Agent  of  a  Railway  Company 
constitutes  a  department  for  the  registering  and 
investigation  of  claims,  and  that  a  claim  is  preferred 
to  that  department,  does  not  absolve  the  person 
making  the  claim,  if  he  intends  to  sue  the  Railway 
Company,  from  giving  notice  to  the  Company  as  pre- 
scribed by  s.  77  read  with  s.  UO  of  the  Railways  Act. 

When  a  porson  claiming  against  a  Railway  Com* 
pany  must  be  presumed  to  know  that  he  must  do  a 
certain  act  in  a  certain  way  within  a  lixed  time,  with- 
out which  preparatory  step  a  suit  will  not  be  com- 
petent, he  ia  not  prevented  from  taking  that  step 
because  he  has  been  told  that  his  claim  is  receiving 
attention  and  no  further  answer  is  received  before 
the  expiry  of  the  period  of  limitation.  On  the  con- 
trary the  fact  that  his  claim  is  not  being  attended  to 
10  sufficient  to  warn  him  that  if  he  wants  to  prosecute 
his  claim  in  Court  he  must  do  what  the  law  requires. 

Appeal  against  the  decision  of  Mr.  Justice 
Shah. 

Mr.  Kanga,  Advocate-General,  (with  him 
Mr.  Daphtary),  for  the  Appellants. 

Mr.  Binning,  for  the  Respondent. 

JUDGMENT.— In  Suit  No.  966  of  1923 

the  defendants  raised  an  issue  whether  the 
plaintiff  delivered  a  notice  of  his  claim  as 
required  by  ss.  77  and  i40  of  the  Indian 
Railways  Act. 

On  June  15,  1922,  the  plaintiff'  wrote  to 
the  Deputy  Traffic  Manager  that  the  bales 
had  not  been  received  and  requesting  him 
to  settle  the  claim. 

On  June  23,  the  letter  was  acknowledg- 
ed, and  it  was  intimated  that  the  claim 
would  receive  attention. 

On  October  25,  the  plaintiff  was  inform- 
ed that  his  cl&im  could  not  be  accepted 
as  the  goods  were  burnt  accidentally  by 
fire.  This  information  would  not  have 
reached  the  plaintiff  within  six  months 
from  the  date  the  goods  were  consigned. 

On  November  25,  the  plaintiff  wrote  to  the 
Agent  of  the  defendant  Company  giving 
notice  of  his  claim.  The  learned  Judge 
held  that  the  first  notice  given  to  the 
Deputy  Traffic  Manager  was  a  notice  to  the 
**"  Administration  oil  the  ground  that 


there  was  a  Department  in  the  Traffic 
Manager's  OJfice  which  dealt  with  claims,  to 
which  claims  addressed  to  the  Agent  would 
be  sent  for  disposal.  As  the  Railway  Adminis- 
tration had  constituted  a  separate  depart* 
ment  for  dealing  with  claims  and  that 
department  kept  a  register  of  claims  to 
which  the  Agent  had  access  at  any  time, 
a  notice  to  the  Traffic  Manager  was  a  notice 
to  the  Railway  Administration.  With  due 
respect  that  may  be  equity  but  it  is  not 
logic. 

Section  140  of  the  Indian  Railways  Act 
defines  when  notice  has  to  be  given  under 
the  Act  to  the  Railway  Administration,  how 
that  notice  has  to  be  given,  and  the  mere 
fact  that  the  Agent  constitutes  a  department 
for  the  registering  and  investigation  of 
claims,  cannot  deprive  the  Railway  Company 
of  the  protection  given  to  it  by  the  Act 
against  suits  on  claims  of  which  due  notice 
as  provided  by  the  Act  has  not  been  given 
to  it, 

In  my  opinion  the  notice  of  June  15, 
1922,  was  not  a  notice  to  the  Railway 
Administration.  It  might  be  argued  thnftt 
where  the  Traffic  Manager  delayed  for  four 
months  before  informing  the  plaintiff  that 
his  claim  could  not  be  entertained,  the  Com* 
pany  had  by  their  own  action  induced  the 
plaintiff  to  refrain  from  sending  a  notice 
under  s.  77  to  the  Railway  Company.  But 
when  a  person  claiming  against  a  Railway 
Company  must  be  presumed  to  know  that 
he  must  do  a  certain  act  in  a  certain  way 
within  a  fixed  time,  without  which  pre- 
paratory step  a  suit  will  not  be  competent, 
he  is  not  prevented  from  taking  that  step 
because  he  has  been  told  that  his  claim  is 
receiving  attention  and  no  further  answer 
is  received  before  the  expiry  of  the  six 
months.  On  the  contrary  the  fact  that  his 
claim  is  not  being  attended  to  is  sufficient 
to  warn  him  that  if  he  wants  to  prosecute 
his  claim  in  Court  he  must  do  what  the  law 
requires. 

On  a  strict  interpretation  of  the  law  I 
feel  compelled  to  hold  that  the  point  raised 
by  the  defendant  Company  was  competent, 
and  was  fatal  to  the  plaintiff's  case. 

z.  K.  Appeal  allowed. 


[&21.  0.1926J 

OUDH  CHIEF  COURT. 

EXECUTION  OP  DECREE  APPEAL  No.  37  OF 

1925. 

'November  30, 1925. 
Present ;— Mr.  Justice  Hasan  and 

Mr.  Justice  Raza 

Bahu  BA8ANT  RAI  BHANDARI— 
PLAINTIFF — DECREE-HOLDER—APPELLANT 

versus 

Lala  8ALIK  RAM— DEFENDANT— 
JUDGMENT-DEBTOR — RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  ss  68,  70— 
Execution  of  decree — Decree  transferred  to  Collector 
for  execution—Order  of  Collector —Appeal  -Revision 
i*  Under  the  rules  framed  by  the  V  P  Local  Govern- 
ment under  s  70  (1),  C  P  0.,  no  appeal  lies  to  the 
Chief  Court  against  an  order  passed  by  a  Collector  in 
discharge  of  his  powers  in  the  execution  of  a  decree 
transferred  to  him  for  execution  under  s  68  of  the 
Code  Under  s  70  (2)  of  the  Code,  therefore,  the  Chief 
Court  can  exercise  neither  appellate  noi  revisional 
jurisdiction  m  leapect  of  &uch  an  order 

Appeal  against  the  judgment  and  order 
of  the  Subordinate  Judge,  Bahraich,  dated 
the  5th  March  1925. 

Mr.  Bishambhar  Nath,  for  the  Appellant 

Messrs.  Radha  Krishna  and  Rudra  Datt 
Sinha,  for  the  Respondent. 

JUDGMENT.—This  is  an  appeal  from 
the  order  dated  the  5th  of  March  1925 
passed  by  the  Subordinate  Judge  of 
Bahraich,  The  facts  are  as  follows  • — 

The  appellant  holds  a  decree  of  sale  on  a 
mortgage  as  against  the  respondent.  Under 
s.  68  of  the  C.  P.  C  ,  the  decree  was  trans- 
ferred to  the  Collector  for  execution  The 
Collector  instead  of  proceeding  to  sell  the 
property  has  made  a  lease  of  it  by  the  terms 
of  which  he  has  provided  for  the  satisfac- 
tion of  the  decree  in  several  instalments. 
To  this  course  adopted  by  the  Collector  the 
decree-holder  took  objection  by  an  applica- 
tion presented  to  the  Subordinate  Judge, 
who  had  originally  passed  the  decree  for 
aale.  The  Subordinate  Judge  rejected  that 
application  by  the  order  now  under  appeal. 

We  are  of  opinion  that  no  appeal  lies  to 
this  Court.  Under  s.  70,  sub-s.  2  (1),  of  the 
0.  P.  0.  the  Local  Government  has  framed 
rules  aa.  to  the  venue  of  appeal  against 
orders  made  by  the  Collector  in  discharge 
of  his  powers  under  s.  68.  This  Court 
is  not  the  Court  to  which  an  appeal 
would  lie  under  those  rules.  Therefore 
under  sub  s.  (2)  of  s.  70  of  the  Code  this 
Court  has  neither  appellate  nor  revisional 
jurisdiction  over  the  orders  passed  by  the 
Collector.  The  appeal  is  dismissed  with 
costs. 

2,  K,  Appeal  dismissed. 


PDLCHAND  MOHANLAL  V.  HARIUL  MANSA, 


549 


BOMBAY  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  716  OF  1924. 

August  19,  1925. 
Present:— Sir  Norman  Macleod,  KT.,  Chief 

Justice,  and  Mr.  Justice  Coyajee. 
FULCHAND  MOHANLAL  AND  OTHERS- 
DEFENDANTS-— APPELLANTS 

versus 

HARILAL  NAN8A  AND  OTHERS- 
PLAINTIFFS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s  O—Juriadic* 
tion  of  Civil  Courts — Question  relating  to  ca#te  pro- 
perty— Division  of  opinion  among  members  of  co*(e, 
effect  of 

Where  in  a  suit  between  the  members  of  a  caste 
the  question  at  issue  is  not  a  mattei  relating  to  the 
internal  administration  and  affairs  of  the  caste,  but 
to  the  property  of  the  caste,  a  Civil  Court  has  juris-* 
diction  to  entertain  the  suit,  and  this  jurisdiction  13 
not  excluded  meiely  because  there  has  been  a  division 
of  opinion  in  the  caste  [p  550,  col  2.] 

Second  appeal  from  the  decision  of  the 
Joint  Judge,  Ahmedabad,  in  Appeal  No. 
434  of  1922,  reversing  a  decree  of  the  Sub- 
ordinate Judge,  at  Ahmedabad,  in  Civil 
Suit  No.  159  of  1921 

Mr.  Dhirajlal  Thakor,  (with  him  Mr.  R, 
J.  Thakor),  for  the  Appellants. 

Mr  G   N.  Thakor,  (with  him  Mr.  H.  7. 
Divatia)>ior  the  Respondents. 
JUDGMENT. 

Macleod,  C.  J.— The  plaintiffs  sued 
for  a  declaration  that  they  had  a  right  to 
manage  the  suit  Wadi,  to  let  it  to  tenants 
and  to  realize  the  rent,  that  defendants  Nos. 
1  and  2  had  not  such  a  right,  and  to  get  a 
permanent  injunction  against  them  and  to 
restrain  them  from  making  any  such  use. 

The  plaintiffs  alleged  that  they  and 
defendants  Nos  1  and  2  belonged  to  the 
Modh  Ganchi  caste  of  Kalupur  Panchpura, 
and  that  the  caste  owned  the  suit  Wadi. 
There  was  a  caste  meeting  convened  on 
December  12th,  1920,  to  pass  some  resolu- 
tions in  respect  of  the  caste,  as  defendants 
Nos.  1  and  2  and  one  Vallabh  had  unautho- 
rized^ got  the  management  and  did  not 
submit  accounts,  and  the  property  had  been 
wasted.  They  further  alleged  that  the  caste 
entrusted  the  vahivat  of  the  property  to 
the  defendants,  and  they  were  bound  to 
hand  it  back  to  the  plaintiffs  in  accordance 
with  the  caste  resolutions. 

Defendants  Nos.  1  and  2  contended  that 
two  factions  existed  in  the  caste,  that  the 
plaintiffs'  faction  had  no  right  to  have  the 
management  and  that  the  jurisdiction  of  the 
Court  was  excluded. 

The  Trial  Judge  held  that  the  plaintiffs 
.did  not  prove  that  the  two  factions  in  the 


550 


Kalupur  Panchpura  caste  had  amalgamat- 
ecl,  and  he  accordingly  dismissed  the  suit. 
In  appeal,  the  Judge  said:  "Considering 
all  facts  I  am  satisfied  that  there  was  a 
re-union  of  the  factions  in  1969  V.  8.,  1913 
A,  D.,  that  the  plaintiffs  are  members  of 
the  caste  and  that  it  is  in  accordance  with 
the  resolution  passed  by  a  majority  at  a 
meeting,  of  which,  the  minority  defendants 
Nos.  i  and  2  had  perfect  and  legal  notice 
and  at  which  they  could  have  had  their 
say,  if  they  choose  to  do  so,  that  the  pre- 
sent suit  is  filed.  If  defendants  Nos.  1 
and  2  choose  to  absent  themselves  and  re- 
main away  they  must  thank  themselves 
for  the  consequences.1'  That  is  a  finding 
by  the  Judge  that  there  were  not  two  sec- 
tions or  factions  in  the  caste  in  the  sense 
that  the  caste  was  split  up  into  two  divi- 
sions, so  that  a  meeting  of  one  section  or 
faction  would  not  bind  the  members  of  the 
opposite  faction,  and  that,  therefore,  juris- 
diction of  the  Court  was  not  excluded. 

,  The  appellants  have  relied  upon  the 
Full  Bench  decision  in  Nemchand  v.  Savai- 
chand  (1).  There  the  plaintiffs,  who  were 
Certain  members  of  the  Shravak  caste  at 
Surat,  asked  for  a  decree  giving  them  half 
the  compensation  granted  by  the  Collector 
in  regard  to  certain  shops  belonging  to 
the  caste  which  had  been  divided  into  two 
factions,  the  plaintiffs  forming  one,  and 
t,he  defendants  the  other,  of  such  factions. 
The  Court  confirmed  the  decree  of  the  Dis- 
trict Judge  who  held  that  the  question  in- 
volved was  a  caste  question  not  cognisable 
by  the  Civil  Court. 

We  think  that  case  is  only  an  authority 
for  this  proposition,  that  when  members 
of  a  caste,  who  have  filed  a  suit  in  connec- 
tion with  caste  property,  have  admitted 
that  there  has  been  a  division  of  the  caste 
so  that  they  only  ask  to  be  held  entitled 
to  the  division  of  the  property,  and  to  a 
decree  to  the  extent  of  half  of  what  was 
the  caste  property,  then  it  can  be  said  that 
rfcally  the  caste  has  been  divided  in  such 
&  'way  that  the  question  how  the  caste  pro- 
perty is  to  be  divided  is  one  which  the 
Courts  cannot  decide.  No  reasons  for  the 
Full  Bench  decision  are  reported  and  with 
all  due  respect  without  reason  it  can  hard- 
ly be  said  to  be  convincing.  In  any  event 
it  cannot  be  extended  beyond  the  facts  of 
the  case. 

t(l)  5  Bom.  84n;  3  lad,  Deo.  (N,  s,)  58  (F.  B.) 


MOHANLAL  V.  HAB1UL  NANSA.  [92.1.  C.  1V>26] 

But  in  La,lji  Shamji  v.  Walji  Wardhman 
(2),  although  there  was  a  division  of 
opinion  in  the  caste,  it  was  held  that  the 
question  at  issue  was  not  a  matter  relating 
to  the  internal  administration  and  affairs 
of  the  caste,  but  to  the  property  of  the 


caste  and  so  the  Court  had  jurisdiction  to 
interfere.  That  is  the  principle  which  I 
•understand  has  always  been  followed  by  this 
Court.  _  .  , 

It  follows  then  that  the  jurisdiction  of 
the  Court  is  not  excluded  in  every  case 
in  which  there  has  merely  been  a  division 
of  opinion  in  the  caste.  Otherwise  as 
soon  as  there  is  such  a  division  on  a  par- 
ticular question,  no  Court  would  have  any 
jurisdiction  to  decide  the  question,  with 
the  result  that  the  only  way  the  question 
could  ultimately  be  decided  would  be  by 
resort  to  force. 

It  seems  to  me  that  in  this  second  appeal 
it  is  only  a  question  of  fact  whether  or 
not  the  caste  was  split  up  and  could  be 
considered  to  be  two  separate  entities,  so 
that  the  question  relating  to  the  caste  coul^ 
not  be  decided  by  the  Court.  But  from  the 
finding  of  the  Appellate  Judge  it  would 
appear  that  the  caste  was  not  really  divid- 
ed into  two  factions,  that  although  some 
members  would  not  agree  with  the  opinion 
of  tl^e  other  members  of  the  caste,  still  the 
caste  remained  as  a  caste,  and  could  meet 
together  when  the  minority  might  have  atl 
opportunity  of  protesting  against  the  reso- 
lutions moved  by  the  majority.  The  mere 
fact  that  they  might  vote  against  such  re- 
solutions cannot  of  itself  result  in  ^the 
splitting  up  of  the  caste  into  two  factions 
so  that  the  questipn  relating  to  caste  pro- 
perty could  no  longer  be  decided  by  the 
Court.  "  M 

The  plaintiffs  here  had  the  authority  of 
the  caste  at  their  meeting  to  take  these 
proceedings  for  the  preservation  of  the  pro- 
perty belonging  to  the  caste,  and  it  seems 
to  me  they  are  entitled  to  get  the  decree 
which  the  Appellate  Court  gave  them  against 
defendants  Nos.  1  and  2.  They  must  be 
taken  merely  to  be  holding  out  against  the 
wishes  of  the  caste  with  regard  to  the  mar 
nagement  *fl  the  caste  property.  ^ 

The  appeal  will  be  dismissd    with  costs. 

Coyajee,  J.— I  agree  in  holding  that 
the  decision  of  the  lower  Appellate  Court 
is  right,  on  the  ground  that  the  question 
arising  in  this  case  is  not  a  question  be* 

(2)  19  Bom,  507;  10  !nd,  Dec,  (N.  e.)  339. 


I,  0, 1926} 


NATH  v.  JDGAL  KJSHOHB. 


551 


tween  two   distinct  sections  of   the  Modh 
Qhanchi  Caste  of  Kalupur  Panchpura,  but 
that  the  suit  was  brought  against  defend- 
ants Nos.  1  and  2  personally. 
z*  K,  Appeal  dismissed. 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  79  OF  1925. 

November  25,  1925. 

Present ;— -Mr.  Justice  Mukerji. 

BATUK  NATH— APPLICANT 

versus 

JUGAL  KISHORE  AND  ANOTHER— 
OPPOSITE  PARTIES. 

Civil  Procedure  Code,  (Act  V  of  1908),  0.  XXII,  r.  JO 
— Decree  against  widow  of  deceased  debtor — Birth  of 
'posthumous  son — Legal  representative,  who  is — Execu- 
tion, whether  can  pioceed  against  son. 

A  creditor  brought  a  suit  against  the  widow  of  a 
deceased  debtor  to  recover  the  debt  and  obtained  a 
decree.  Subsequent  to  the  date  of  the  decree  the 
widow  gave  birth  to  a  son  The  decree-holder 
sought  to  execute  the  decree  against  the  son  as  the 
legal  representative  of  the  deceased  debtor , 

Held,  that  on  the  analogy  of  the  provisions  of  O. 
XXII,  r  10,  C  P  0 ,  the  son  who  really  represented 
the  estate  of  the  deceased  debtor  must  now  be  treated 
as  his  legal  representative  and  that  execution  could, 
therefore,  proceed  against  the  son  [p  552,  col  1.] 

Civil  revision  from  an  order  of  the  Hub* 
ordinate  Judge,  Muttra,  dated  the  12th 
February  1925. 

Mr,  5.  C.  Das,  for  the  Applicant. 

Mr.  N.  P.  Asthana,  for  the  Opposite 
Parties. 

JUDGMENT*— This  revision  raises  a 
question  of  law  on  which  there  does  not 
appear  to  be  any  direct  authority.  The 
matter  is  not,  it  further  appears,  covered 
by  any  direct  rule  of  procedure  contained 
in  the  0.  P.  0. 

The  facts  are  these.  One  Pancha  was 
indebted  to  one  Jugal  Kishore.  Pancha 
having  died  Jugal  Kishore  brought  a  suit 
to  recover  his  money  against  Pancha's 
widow  Musammat  Kota  When  decree  was 
passed,  the  widow  was  pregnant  and  she 
gave  birth  to  a  child,  the  petitioner  before 
me,  a  few  months  later.  The  decree-holder 
sought  to  execute  his  decree  against  the 
widow  and  obtained  an  attachment  of  cer- 
tain properties.  Pancha's  brother  Sancha 
for  himself  and  as  the  guardian  of  his 
nephew,  the  petitioner  Batuk  Nath,  pre- 
ferred an  objection  apparently  under  0. 
XXI,  r,  *8  of  the  0,  P,  0,  and  it  succeeded, 


The  decree-holder  brought  a  suit  undef 
r.  63,  O.  XXI  of  the  C.  P.  C.  and  this 
suit  was  dismissed  for  default^  His  appeal 
was  still  pending  before  the  District  Judge 
when  that  learned  Officer  disposed  of  the 
present  matter 

Having  been  unsuccessful  in  executing 
his  decree  against  Musammat  Kota,  the 
decree-holder's  representative  (decree-holder 
having  since  died)  sought  to  execute  the 
decree  by  bringing  Batuk  .Nath  on  the 
record  as  the  legal  representative  of  his 
deceased  father  Batuk  Nath  came  for- 
ward with  a  number  of  objections,  only  one 
of  which  has  been  so  f$r  decided,  viz., 
whether  he  could  be  properly  brought  on 
the  record  as  the  legal  representative  of 
the  deceased  Pancha.  The  Courts  below 
have  agreed  that  Batuk  Nath,  if  the  exe- 
cution is  continued  against  him,  would  be 
entitled  to  prefer  any  objection  that  he  may 
have  to  the  execution  of  the  decree. 

The  sole  question  for  decision  by  me  is 
whether  the  Courts  below  were  right  in 
allowing  the  execution  to  proceed  against 
Batuk  Nath. 

As  already  mentioned  there  is  no  clear 
authority  either  way  on  the  point  and  the 
matter  is  not  covered  by  any  clear  rule  of 
enacted  law.  The  matter  is  one  of  first 
impression. 

Mr.  Das  in  his  able  argument  has  urged 
that    substitution    of   Batuk    Nath  would 
really  mean  passing  of  a   decree   against 
the  petitioner   and  that  the    Court  below 
was  not  justified  in  so  acting.    He  relies  on 
the  case  of  Ashi  Bhushan  Dasi  v.  Pelaram 
Mandal  (1).    In  that  case  a  creditor  sued  an 
infant  on  the  allegation  that  he   was  the 
adopted  son  of  the  deceased  debtor.    The 
infant  was  impleaded  under  the  guardianship 
of  the  widow  of  the  deceased.    Subsequent- 
ly it  transpired,  as  the  result  of   another 
litigation,    that  the  infant  had  not  been 
adopted  by  the  deceased.    The  creditor  then) 
sought  to  execute  the  decree  against  the 
widow  of  the  deceased  on  the  ground  that 
she    represented   the  estate  and  that  she 
had  virtually  been  a  party  to  the  suit.    The 
learned     Judges   repelled  the   contention 
and   held  that  a  decree  against  a  person 
wko  was  not  the  legal  representative  of  the 
deceased  could  not  be  turned  into  a  decree 
against  the  widow  of  the  deceased. 

The  facts  of  this  case  are  entirely  difier- 
ent.     Here  the  suit  was  brought   against 
(1)  *1  JrnjL  Caa    519;  18  0.  W.  N.  173,  18  C.  L,  J, 
302. 


552 


SHRI  GOVBRDHANLALJI  M  AH  A  RAJ  v,  SBRI  CHA^DRAPRABHAVATI. 


a  person  who  was  then  de  facto  and  de  jure 
the  legal  representative  of  the  deceased 
debtor.  The  decree  was,  therefore,  obtained 
against  a  person  who  represented  the  es- 
tate of  the  deceased.  On  the  birth  of  Batuk 
Nath,  by  operation  of  law,  the  estate  de- 
volved on  him  and  he  became  the  sole 
representative  of  his  deceased  father.  The 
case  is  very  similar  to  the  illustration  given 
by  the  learned  Counsel  for  the  resr»  -  ident, 
viz.,  where  subsequently  to  the  mg  of 
a  decree  against  a  widow,  she  ces  an 
adoption  and  thereby  divests  her  f  of  her 
husband's  property,  the  decree  i  treated 
as  binding  on  the  son  unless,  of  course,  he 
can  show  that  the  decree  was  obtained  by 
collusion  or  fraud.  Again,  when  an  estate 
is  represented  by  a  Hindu  widow  and  she 
dies  and  a  reversioner  comes  in,  the  decree 
passed  against  the  widow  is  treated  as 
binding  on  the  reveraioner  except  under 
circumstances  which  need  not  be  consi- 
dered here.  The  present  case  is  really  very 
similar  to  the  illustration  given  by  Mr. 
Asthana.  On  the  analogy  of  the  provisions 
of  0.  XXII,  r.  10  the  person  who  really 
represents  the  estate  at  a  particular  moment 
ought  to  be  treated  as  the  legal  represen- 
tative of  the  deceased  debtor. 

I  am  of  opinion  that  the  Courts  below 
were  right.  Before  I  leave  I  would  like 
to  point  out  with  some  emphasis  that  no 
other  question  so  far  has  been  decided  by 
the  Courts  below  and  it  is  open  to  the 
applicant  to  put  forward  any  other  objec- 
tion that  he  may  have  to  the  execution  of 
the  decree,  e.  g ,  a  plea  of  res  judicata  etc. 

The  petition  in  revision  is  dismissed  with 
costs* 

z.  K.  Petition  dismissed. 


BOMBAY  HIGH  COURT. 

ORIGINAL  CIVIL  JURISDICTION  APPEAL  No.  81 

OP  1925 

September  15,  1925. 

Present:— Sir  Norman  Macleod,  KT., 

Chief  Justice,  and  Mr.  Justice  Coyajee. 

SHRI  GOVERDHANLALJI  MAHARAJ— 

DEFENDANT  — APPJBLLANT 

versus 

SHRI  CHANDRAPRABHAVATI- 
FLAINTJFF— RESPONDENT. 

Letters  Patent  (Bom,),  cl  15— Finding  that  suit 
is  maintainable,  whether  "judgment"— Appeal,  whether 
lies 

A  finding  that  a  suit  is  maintainable  and  should 
proceed,  eren  though  embodied  in  a  formal  decree,  is 


[92  I.  0,  1S26] 

not  a  "judgment"  within  the  meaning  of  cl.  15  of  the 
Letters  Patent  of  the  Bombay  High  Court,  and  is  not, 
therefore,  open  to  appeal  [p  553,  col  1.] 

Per  Coyajee,,  J  —The  word  "judgment11  m  cl.  15  of 
the  Letters  Patent  of  the  Bombay  High  Court  means 
a  judgment  or  decree  which  decides  the  case  one 
way  or  the  other  in  its  entirety,  and  does  not  mean 
a  decision  or  order  of  an  interlocutory  character, 
which  merely  decides  some  isolated  point,  not  affect- 
ing the  merits  or  result  of  the  entire  suit.  [p.  553, 
cols  1  A  2] 

Appeal  against  the  decision  of  Mr,  Justice 
Mirza. 

Sir  Chimanlal  Setalrad  (with  him  Messrs. 
Kanga,  Advocate- General,  B.  J.  Desaiand 
Mulla),  for  the  Appellant. 

Mr.  Coltman,  (with  him  Mr.  Jayakar\  for 
the  Respondent. 

JUDGMENT. 

Macleod,  C.  J.— The  plaintiff  filed  this 
suit  with  a  view  to  get  the  terms  of  the 
consent  decree,  passed  on  June  13,  1912, 
whereby  inter  alia  her  maintenance  was 
fixed  at  Rs  2,000  per  every  two  months, 
varied,  on  the  ground  that  circumstances 
had  arisen  which  justified  her  asking  for  an 
increase.  The  defendant  in  his  written 
statement  submitted  that  the  suit  was  not 
maintainable,  that  the  sum  payable  to  the 
plaintiff  had  been  fixed  by  a  consent  decree 
and  could  not  be  altered  without  the  con- 
sent of  the  defendant. 

A  preliminary  issue  was  raised  in  a 
somewhat  unintelligible  form,  viz.,  whether 
the  suit  was  not  maintainable  as  alleged  in 
para.  1  of  the  written  statement.  After 
hearing  arguments  on  that  issue,  the  Judge 
came  to  the  conclusion  that  the  suit  was 
maintainable,  and  as  the  parties  were  not 
ready  to  go  on  with  the  hearing,  the  further 
hearing  of  the  suit  had  to  be  adjourned. 

But  it  appears  that  on  that  decision  an 
order  was  drawn  up  as  follows :— "  The  suit 
being  this  day  called  on  for  judgment  this 
Court  doth  declare  that  this  suit  is  maintain- 
able." 

Against  that  decision  the  defendant  has 
filed  an  appeal.  The  respondent  has  taken 
an  objection  that  no  appeal  lies  as  there 
is  no  judgment  before  this  Court  within  the 
meaning  of  that  word  under  cl.  15  of  the 
Letters  Patent.  Whether  a  decision  is  a  judg- 
ment or  not  is  a  question  which  very  often 
arises,  and,  I  have  no  desire  myself  to  add  to 
the  literature  which  has  accumulated  there- 
on The  judgment  of  Justice  of  the  Peace 
for  Calcutta  v.  Oriental  Gas  Company  (1) 
is  always  referred  to.  But  the  attempt 
made  therein  to  define  judgment  does 

(1)  8B,L»  R.«3;17  W.R.364, 


[92  LO.  1926] 


MBHAMMAD  IBRAHIM  V.  YADO. 


553 


seem  to  have  prevented  in  each  case  in 
which  the  question  has  arisen,  lengthy  argu- 
ments being  brought  forward  to  show 
whether  the  particular  decision  before  the 
Court  was  a  judgment  or  not.  After  con- 
sidering ve,ry  carefully  what  was  set  for- 
ward as  a  definition  of  'judgment1  in  that 
case,!  prefer  myself  to  consider  each  deci- 
sion as  it  comes  before  me,  and  to  form  my 
own  opinion  whether  it  is  a  judgment  or 
not  for  the  purpose  of  deciding  whether 
an  appeal  lies.  For  the  purposes  of  this 
case  to  my  mind  the  distinction  between 
decisions  and  orders  thereon  which  stand 
by  themselves,  and  decisions  on  a  single 
issue  in  a  suit,  is  a  very  real  one.  It  is 
not  desirable  on  general  principles  that  a 
suit  should  be  tried  piecemeal,  and  a 
decision  on  an  issue  to  the  effect  that  the 
trial  of  the  suit  should  proceed  can  never  to 
my  mind  amount  to  a  judgment. 

If  in  this  case  the  Judge  had  decided 
that  the  suit  was  not  maintainable  and  had 
dismissed  the  suit,  then  undoubtedly  an 
appeal  would  lie  against  that  decision.  But 
in  this  case  the  Judge  has  decided  that  the 
suit  should  proceed.  He  will  then  consider 
the  remaining  issue  in  the  suit,  whether 
the  plaintiff  should  be  granted  in  the  cir- 
cumstances of  the  case  increased  mainte- 
nance or  not,  and  when  he  has  decided  that 
question  there  will  be  a  judgment,  against 
which  all  the  arguments  which  are  now 
sought  to  be  raised  against  the  decision  on 
thh  issue  can  be  placed  before  the  Court. 
We  are  not  shutting  out  the  defendant  from 
aay  objection  which  he  may  eventually  be 
advised  to  raise  against  the  final  decree  in 
the  suit.  We  are  merely  pointing  out  that 
S3  far  nothing  has  been  decided  with  regard 
to  the  rights  and  liabilities  of  the  parties, 
there  is  only  a  decision  that  the  suit  should 
proceed,  and  against  that  decision  no  appeal 
lies. 

The  appeal  will  be  dismissed  with  costs. 

Oross-obiections  will  be  dismissed 
with  costs  in  the  sense  that  they  fall  with 
the  appeal. 

Coyajee,  J. — I  concur  and  will  add  that 
while  U  is  best  not  to  attempt  to  define  the 
expression  "judgment"  as  used  in  cl.  15 
of  the  Letters  Patent,  a  correct  guidance  on 
the  subject  is  to  be  found  in  the  view  ex- 
pressed by  Sir  Richard  Garth,  0.  J.,  in 
Ebrahim  v.  Fwkhrunnissa  Begum  (2).  His 
Lordship  said  (page  534*)-  "I  think  that  word 

(2)  4  0.  531;  3  OP.  R  311.  NInd  D^e  (N a)  337 
*Page  of  4  0.-[J5M,] """"*" 


'judgment1  means  a  judgment  or  decree 
which  decides  the  case  one  way  or  the 
other  in  its  entirety,  and  that  it  does  not 
mean  a  decision  or  order  of  an  interlocutory 
character,  which  merely  decides  some 
isolated  point,  not  affecting  the  merits  or 
result  of  the  ^ntire  suit "  In  this  case 
what  the  learned  Trial  Judge  has  done  is  to 
direct  that  the  trial  of  the  suit  should 
proceed,  In  the  circumstances  I  agree  in 
holding  that  it  is  not  a  'judgrpent'  vuthin 
the  meaning  of  that  word  in  cl.  15  of  the 
Letters  Patent, 
z.  K.  Appeal  dismissed, 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  381  OF  1925. 

December  2,  1^25 

Present-— Mr  Fmdlay,  Officiating  J.  C. 

MUHAMMAD  IBRAHIM  RIZA—PLAiNTiFF 

— APPELLANT 

versus 

YADO  AND  ANOTHER — DEPENDANTS — 
RESPONDENTS. 

Registration  Act  (XVI  of  1908),  s.  *  (7)— Receipt 
given  by  lessor — Lease — Registration 

A  receipt  granted  bv  a  lessor,  reciting  that  the 
lessee  had  paid  a  certain  earnest-money  and  taken  a 
lease  of  certain  property,  for  a  certain  term,  for  a 
certain  amount,  payable  in  specified  instalments,  con- 
taming  a  recital  that  a  formal  lease-deed  would  be 
executed  next  day,  as  no  stamp  was  available  at  the 
tim%  is  a  "lease"  within  s  2  (7)  of  the  Registration 
Act  and  is  inadmissible  in  evidence  without  regis- 
tration [p  554, col  1] 

Panckanan  Basu  v  Chandi  Charan  Misra,  6  Ind  Cas 
443,  37  C  808, 14  0  W  N  874  and  Uemanta  Kuman 
Debi  v  Midnapore  ZemmdariCo  ,  53  Ind  Cas  S34.  47 
C  485,  37  M  L  J  525,  17  A  L  J  1117,  24  0  W  N, 
177,  (1920)  M  W  N  66,  27  M  L  T  42,  11  L  W. 
301,46  I  A  240,  22  Bom  L  R  488  (P  C),  relied 
on 

Kedar  Nath  v  Shanker  Lalt  78  Ind  Cas  934,  36  A 
303,  22  A  L  J  185,  (1924)  A,  I  JR  (Av)  514,  L  R  5  A. 
80  Civ ,  distinguished 

Appeal  against  the  decree  of  the  District 
Judge,  Nagpur,  dated  tha  57th  January 
1925,  in  Civil  Appeal  No  53  of  1925. 

Messrs.  ¥,  B.  Kinkhede,  R.  B.,  and  A.  V. 
Wazalwar,  for  the  Appellant 

JUDGMENT. — The    main  contention 
urged  on  behelf  of   the  plaintiff- appellant 
is  that  the  receipt  (P.  1)  is  not  a  kabuliyat, 
as  it  is  held   to  be  by  the  learned  District 
Judge.    It  is  urged  on  behalf  of  the  appel- 
lant that  the  lease  is   not  the  sole  reposi- 
tory of  the  terms  of  the  agreement  between 
the  parties  and  that  there  was,  in  reality, 
a  prior  oral  lease,    Ihaye  fgu&cl  it 


554 


SHIDRAJ  BHOJRAJ  DRSAI  V.  REtfAKl  KONDA  MAHAR. 


[92  I.  C.  1926] 


to  entertain  the  suggestion  in  view  of  the 
terms  of  the  receipt.  These  terms  include 
the  following  pertinent  matters  ;-— 

(a)  That  the  lessee  has  taken  a  lease  of 
the  fields  specified  for  the  Fasli  years 
1334-35. 

(6).    That  the  consideration  was  Rs.  1,200. 

(c),  That  Rs.  30  were  paid  as  earnest- 
money  on  the  date  of  execution  and  that 
Rs.  300  would  be  paid  on  llth  February  1924, 
R*.  600  in  December  1924  and  Rs.  270  in 
1924. 

The  receipt  further  contained  a  recital 
that  a  formal  lease  deed  would  be  executed 
next  day,  a  stamp  not  being  available  at  the 
time. 

I  concur  with  the  learned  District 
Judge  in  thinking  that  the  present  receipt 
cannot  be  taken  out  of  the  definition  of 
"lease"  under  s.  2  (7)  of  the  Registration 
Act  on  the  authority  of  the  decisions  in 
Panchanan  Basu  v.  Chandi  Charan  Misra 
(1)  and  HemantaKumariDebiv.  Midnapore 
Zemindari  Company(2).  Sofar  as  the  terms  of 
the  receipt  go,  they  expressly  imply  a^definite 
and  fixed  lease  for  a  specific  period.  In 
Kedar  Nath  v.  Shanker  Lai  (3)  what  was 
decided  was  that  a  registered  kabuliyat 
executed  by  the  lessee  is  not  sufficient  to 
bestow  title  upon  him  and  cannot  be  con- 
sidered a  lease  within  the  meaning  of  s  105 
of  the  Transfer  of  Property  Act.  Here, 
however,  the  plaintiff  has  come  to  Court, 
in  effect,  relying  upon  this  document 
(P.  I).  He  alleges  that  the  defendants  are 
in  possession  of  the  property  and  have  not 
paid  Rs.  300  due  on  llth  February  1924. 
In  those  circumstances  it  seems  to  me  that 
the  receipt  in  question  must  be  considered 
as  an  acknowledgment  that  the  lease  has 
been  given  and,  this  being  so,  it  would 
come  under  "kabuliyat"  or  "undertaking  to 
cultivate  or  occupy1*  within  the  mean- 
ing of  definition  in  s.  2  (7j  of  the  Regis- 
tration Act.  This  being  so  and  being 
unregistered,  it  is  clearly  inadmissible  in 
evidence. 

So  far  ad  the  alternative  contention 
urged  in  appeal  is  concerned,  viz ,  that  the 
suit  might  be  regarded  as  one  for  damages 
for  use  and  occupation,  c/.  Shea  Karari 

(1)  6  Tad.  Gas  443;  37  C.  808,  14  0.  W.  N.  874 

(2)  53  Ind  Gas.  534;  47  C.  485;  37  M  L.  J.  525;  17 
A  L  J  1117;  24  G.  W.  N.  177;  (1920^  M.  W.  N.  66;  27 
M'.  L  T  42,  11  L,  \V.  301;  46  I.  A.  240;  22  Bom.  L.  R 
488  (P.  C  )  . 

(3)  78  lud  Caa    931;   36  A,  303,    22  A.  L,  J.   185; 

A.  I  &  W  514;>-Lr  R.  5  A,  80  Oiv. 


Suigh  v.  Parbhu  Narain  Sixgh  (4),  I  find 
myself  in  full  agreement  with  the  decision  of 
the  lower  Appellate  Court  and  have  nothing 
to  add  to  its  remarks. 

The   appeal  is  dismissed  without  notice 
to  the  respondents 

N.  H.  Appeal  dismissed* 

(4)  2  Ind.  Gas.  211;  31  A.  276;  6  A.  L.  J.  167;  5  M. 
L.  T  347, 


BOMBAY  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  650  OF  1924. 

August  27,  1925. 

Present:— Sir  Norman  Mecleod,  KT., 

Chief  Justice,  and  Mr.  Justice  Coyajee, 

SHIDRAJ  BHOJRAJ  DESAI— 

DEFENDANT— APPELLANT 

versus 

RENAKI  KONDA  MAHAR— PLAINTIFF— 
RESPONDENT. 

Dekkhan  Agriculturists'  Relief  Act  (XVII  of  2879) 
— Execution  of  decree — Death  of  judgment-debtor — 
Legal  representative^  whether  can  prove  status  as 
agriculturist 

Where  a  judgment-debtor  dies  after  decree  but 
before  execution  proceedings  are  completed,  it  is  open 
to  his  legal  representative  to  prove  that  he  was  an 
agriculturist  and  thus  claim  the  benefit  of  the  pro- 
visions of  the  Dekkhan  Agriculturists1  Relief  Act 

Second  appeal  from  the  decision  of  the 
Acting  District  Judge,  Belgaum,  in  Appeal 
No.  94  of  1923,  reversing  an  order  of  the 
Subordinate  Judge  at  Athni,  in  Darkhast 
No.  196  of  1918. 

Mr.  M.  V.  Bhat,  for  the  Appellant. 

Mr.  H.  B.  Gumaste,  for  the  Respondent. 

JUDGMENT.— In  this  case  a  decree 
was  passed  in  Suit  No.  4  of  1917in  the  Court 
of  the  Second  Class  Subordinate  Judge  at 
Athni  against,  amongst  other  persons,  one 
Thalya  Mahar.  He  died  soon  after  the 
decree  was  passed  on  September  27,  1917, 
and  his  widow  was  placed  on  the  record. 
On  June  1,  1918,  a  darkhast  was  filed 
against  her.  Her  husband  was  not  des* 
cribed  in  the  proceeding  which  was  ex 
parte  against  him  as  an  agriculturist  and 
the  widow  died  before  the  darkhast  came 
on  for  decision.  The  present  applicant  is 
the  daughter  of  Thalya  and  she  applied  to 
be  declared  as  an  agriculturist  so  that  she 
could  obtain  the  privileges  of  that  dtatus 
in  the  execution  proceedings.  The  Trial 
Court  ordered  the  sale  of  the  property  and 
attachment  to  proceed. 


[92 1.  C.  1926] 

In  appeal  the  Acting  District  Judge  set 
Qside  that  order  and  directed  the  Subordi- 
nate Judge  to  find  on  the  issue  as  to  whe- 
ther the  applicant  was  or  was  not  an 
agriculturist,  and  if  it  was  found  that  she 
was  an  agriculturist  to  grant  the  appropriate 
relief. 

If  Thalya  had  survived,  in  the  execution 
proceedings  he  would  have  been  allowed  to 
prove  his  status  as  an  agriculturist  under 
the  decision  in  Rudrappa  Sanvirappa 
Mensinkai  v.  Chanbasappa  Mallappa  Bhusad 
Cl).  There  is  no  reason,  therefore,  why  the 
fact  that  he  died  before  the  execution  pro- 
ceedings were  completed  should  prevent 
his  legal  representatives  from  proving  that 
they  were  agriculturists  so  as  to  enable  them 
to  obtain  the  relief  provided  by  the  Act. 
It  would  have  to  be  proved  that  the  appli- 
cant was  an  agriculturist  at  the  date  of  the 
decree,  and  an  enquiry  as  regards  that  fact 
has  been  directed  by  the  District  Judge, 
We  think  that  order  was  right  and  the 
appeal  must  be  dismissed  with  costs. 

z.  K.  Appeal  dismissed. 

(1)  80  Ind  Gas,  162,    26  Bom,  L,  R,  153,  (1924)  A.  I. 
K  (H.)  305, 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  127  OF  1925. 

Decembers,  1925. 

Present:-  Mr.  Justice  Daniels. 

GHI8SU— DEFENDANT— APPLICANT 

versus 

AMIR  ALI  KHAN— PLAINTIFF— OPPOSITE- 
PA  RTy. 

Civil  Procedure  Code  (Act  V  of  1908),  s,  115,  0, 
X.LI,  r.  25 — Appeal— Finding  misread —Revision 

Where  a  lower  Appellate  Court  completely  misreads 
the  findings  of  the  Trial  Court,  it  acts  with  material 
irregularity  in  the  exercise  of  its  jurisdiction,  and  its 
order  is  open  to  revision 

Civil  revision  from  an  order  of  the  Ad- 
ditional District  Judge,  Shahjahanpur, 
dated  the  14th  of  April  1925. 

Mr.  Harnandan  Prasad,  for  the  Appli- 
cant. 

Mr,  Mukhtar  Ahmadtior  Mr.  Iqbal  Ahmad, 
for  the  Opposite  Party. 

JUDGMENT.— This  revision  is  press- 
ed on  the  ground  that  the  Court  below'  has 
entirely  misread  the  findings  submitted  to 
it  on  a  remand  under  0.  XLI,  r.  25.  An 
examination  of  the  record  shows  this  to  be 
correct.  The  issues  remitted  were: — 
.  (1)  Are  the  plots  in  suit  situated  in  Mahal 
Basti  Begam  ? 


DEVJl  PADAMSEY  V.  THOMMADRA  EttlKALAPPA. 


$55 


(2)  Did  the  defendant  ever  pay  rent  to 
the  zemindar  of  Azizganj ;  and  if  so  ou 
what  ground  ? 

The  learned  District  Judge  says,  "The 
finding  on  the  first  issue  is  in  the  affirma- 
tive, and  on  the  second  is  in  the  negative.1' 
In  fact  the  finding  on  the  first  issue  was  in 
the  negative.  The  learned  Munsif  found  that 
the  land  in  suit  must  be  held  to  be  in 
Azizganj.  He  also  found  that  the  zamin- 
dar  of  Azizganj  had  been  collecting  rent. 
Through  what  extraordinary  mistake  the 
error  crept  into  the  learned  Judge's  judgment 
it  is  difficult  now  to  know.  The  learned 
Judge  in  treating  the  findings  as  being  the 
opposite  of  what  they  really  were  acted 
with  material  irregularity  in  the  exercise 
of  his  jurisdiction.  The  best  course  will 
be  to  set  aside  his  decree  and  direct  him  to 
re-hear  the  appeal,  and  this  order  I  accord- 
ingly pass.  Costs  will  abide  the  result. 

Z.  K.  Decree  set  aside. 


BOMBAY  HIGH  COURT. 

ORIGINAL  CIVIL  JURISDICTION  APPEAL  No.  52 

OF  1925. 

September  3,  1925. 

Present  :—  Sir  Norman  Macleod,  Kr.,  Chief 

Justice,  and  Mr.  Justice  Coyajee. 

DEVJI  PADAMSEY—  PLAINTIFF 

—  APPELLANT 

versus 
THOMMADRA  ERIKALAPPA— 

DEFENDANT—  RESPONDENT. 
Ex  parte  decree,  suit  to  set   aside—  Fraud—  Failure 
to  file  affidavit  of  documents—Decree  against  party  not 
in  default,  legality  of 

In  a  suit  filed  by  M  against  T,  the  latter  filed  a 
written  statement  and  a  counter-claim  not  only 
against  M  but  also  against  three  other  persons  in- 
cluding D  M  failed  to  obey  an  order  made  in  the  suit 
to  file  his  affidavit  of  documents,  whereupon  T  applied 
for  and  obtained  an  order  dismissing  Afs  suit  and 
decreeing  Ts  counter-claim  ex  parte  not  only  against 
M  but  alpo  against  the  other  parties  including  D  who 
•were  not  m  default  D  brought  a  suit  to  set  aside  the 
ex  parte  decree  as  against  him 

Held,  (1)  that  T  was  guilty  of  fraud  on  the  Court  in 
applying  for  and  obtaining  an  eac  parte  decree  against 
D  and  the  other  pei  sons  who  were  not  in  default, 
[p  556,  col  1  ] 

(2)  that  so  far  as  these  persons  were  concerned  the 
ex  parte  decree  was  a  nullity,  [ibid  ] 

(3)  that  it   was   open  to  D  to  sue  to  set  aside  the 
ex  parte  decree  and  his  suit  must  succeed    [p  556,  col. 
2] 

Appeal  against  the  decision  of  Mr.  Justice 


, 

Mr.  Kanga,  Advocate-General  (with    birn 
Mr,  Pandya,)  for  the  Appellant* 


556 


SIVAN  P1LLA1  V.  VBKKATuSWABA  IYER. 


Mr,  J.  H.  Vakeel,  (with  him  Mr.  B,  J. 
Desai),  for  the  Respondent. 

JUDGMENT.— Maganlal  Padamsey 
filed  a  Suit  No.  1953  of  1920  against  one 
Thommadra  Erikalappa.  Thommadra  filed 
a  written  statement  and  counter-claim  not 
only  against  Maganlal  but  against  three 
other  persons  including  Devji  Padamsey, 
the  present  plaintiff-appellant.  Maganlal 
failed  to  obey  the  order  made  in  the  suit 
to  file  his  affidavit  of  documents,  whereupon 
Thommadra  applied  for  an  order  that  in 
default  of  the  affidavit  the  plaintiff's  suit 
should  be  dismissed,  and  that  he  should 
be  held  entitled  to  an  ex  parte  decree  on 
his  counter-claim  not  only  against  Magan- 
lal but  against  the  other  defendants  to  the 
counter-claim  who  were  not  in  default. 
That  order  unfortunately  was  made,  but  it 
was  obviously  a  wrong  order,  which  the 
defendants  other  than  Maganlal  to  the 
counter-claim  were  entitled  to  treat  as  a 
nullity,  and  all  the  proceedings  under  that 
order,  the  putting  down  the  suit  for  an 
ex  parte  decree  against  these  defendants 
to  the  counter-claim,  and  the  passing  of  a 
decree  against  them  ex  parte  were  absolute 
nullities  against  these  defendants  including 
Devji  Padamsey,  who  has  now  brought  this 
suit  to  set  aside  the  ex  parte  decree  passed 
against  him. 

The  defendant  relies  on  the  fact  that 
there  was  no  concealment  of  the  true  facts, 
because,  when  the  case  came  on  for  hearing, 
the  Chamber  order  was  put  in  as  Ex.  F. 
and  the  Judge  was  entitled  to  presume  that 
was  a  proper  order  passed  against  all  the 
defendants  to  the  counter-claim.  But  the 
defendant  to  this  suit  Thommadra  cannot 
now  rely  upon  that  order  under  which  he 
was  enabled  to  obtain  a  decree  against  the 
defendants  other  than  Maganlal,  and  it  would 
certainly  be  a  fraud  on  the  Court,  that  he 
obtained  a  decree  against  the  present 
plaintiff  Devji  Padamsey  in  such  a  way, 
It  is  clear  then  that  the  fraud  on  the  Court 
lay  in  obtaining  the  order  against  the 
present  plaintiff  and  his  other  co-defendants 
to  the  counter-claim,  which  Thommadra 
muat  or  certainly  ought  to  have  known, 
could  not  in  any  way  be  binding  on  Devji 
and  his  co-defendants.  It  is  unfortunate 
that  Devji  was  absent  when  Counsel  was 
instructed  on  the  last  day  available  to  ask 
that  the  ex  parte  decree  should  be  set  aside. 
Counsel  moved  late  in  the  day  and  the 
Judge  directed  that  the  application  should 
be  adjourned  and  renewed  the  nest  day  on 


[95 1.  0. 1928] 

affidavit.  As  Devji  was  still  absen*,  appar- 
ently the  application  could  not  be  renewed, 
and  Devji  had  to  file  the  present  suit.  As 
a  matter  of  fact  there  was  no  necessity  for 
an  affidavit,  the  defect  in  the  proceedings 
was  clear  on  the  record.  It  would  certainly 
be  a  very  extraordinary  thing  if  Devji  should 
be  liable  on  a  decree  passed  against  him  in 
such  circumstances,  without  any  remedy 
being  open  to  him  to  get  the  decree  set 
aside. 

We  must  allow  the  appeal  and  set  aside 
the  decree  passed  against  this  defendant 
with  costs  throughout. 

z.  K.  Appeal  allowed. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No.  70  OP  1925 

AND 
CIVIL  REVISION  PETITION  No.  106  OP  1925, 

September  9,  1925, 

Present  .-—Justice  Sir  Charles  Gordon 

Spencer,  KT.,  and  Mr.  Justice  Madhavan 

Nair. 

SIVAN    PILLAI  AND  ANOTHER— 

APPELLANTS  IN  C.  M.  No.  70  OP  1925  AND 
PETITIONERS  IN  C.  R.  P.  No,  106  OF  1925 

versus 

T.  8.  VENKATESWARA  IYER— 
RESPONDENT  IN  BOTH. 

Ciml  Procedure  Code  (Act  V  of  1908),  ss.  tft  92— 
Scheme  framed  by  Court—Order  in  pursuance  of 
scheme— Appeal,  whether  lies — Trustee,  removal  o/,  riot 
provided  for  in  scheme — Procedure 

An  order  made  by  a  Court  in  the  exercise  of  a  power 
given  to  it  by  a  provision  in  a  scheme  framed  in  a 
suit  under  s  92,  C  P  C ,  is  not  an  order  made  in  exe- 
cution and  is  not  appealable  tinder  s,  47  of  the  Code, 
[p.  557,  col  2  ] 

Lokasikhamani  Mudaliar  v.  Thiagaroya  Chettiar, 
38Ind  Cas.  415,  5  L.  W.  590;  <1<U7J  M.  W  N.  420, 
Runganatha  v  Krishnaswami,  75  Inl  Cas  189;  18L. 
W.  237;  (1923;  M  W  N  654;  47  M.  139;  (19>4)  A.  I.  R, 
(M.)  369,  Sevak  Jeranchod  Bhogilal  v.  Dakore  Temple 
Committee,  87  Ind.  Cas  313,  49  M.  L.  J.  25;  23  A.  L. 
J.  555;  (1925)  A.  I.  R.  (P.  0 )  155;  L.  R  6  A,  (P  C.)  117; 
(1925)  M  W.  N  474;  2  O.  W.  N.  535;  41  C.  L.  J.  628; 
22  L  W.246;  27  Bom.  L.  R.  872  (P.  C,),  followed. 

In  the  absence  of  any  provision  in  a  scheme  for  the 
removal  of  a  trustee,  a  separate  suit  must  be  brought 
for  the  purpose,  [p.  557,  col.  L] 

Appeal  and  revision  petition  against  an 
order  of  the  District  Court,  Tinnevelly,  in 
I.  A.  No.  992  of  1923  in  O.  B.  No.  4  of 
1905. 

Mr.  T.  M.  Krishnaswami  Iyer,  for  the 
Appellants, 

Mr.  K.  V,  Sesha  Myangar}  for  the.  Re- 
spondent. 


[92  I.  O.  1926] 


SIVAN  PILLAI  V.  VENKATESWARA  ITER. 


557 


JUDGMENT. 

Spencer,  J*— The  revised  decree  in 
this  scheme  suit  as  passed  on  March  16th, 
1906  by  the  learned  District  Judge  of  Tin- 
nevelly  (now  Mr.  Justice  Phillips)  provided 
that  the  trustee  should  hold  office  for  a 
term  of  7  years  renewable  at  the  Will  of 
the  villagers  and  the  Court.  New  trustees 
were  to  hold  office  upon  nomination  by  the 
villagers  of  Tiruvannathapuram  and  Tim- 
marajapuram,  subject  to  the  approval  of 
the  District  Court,  More  than  twice  7  years 
had  passed,  when  the  matter  came  up  again 
before  the  District  Judge  of  Tinnevelly  in 
November  1824.  At  that  time,  there  was 
a  mahazar  dated  16th  December  1922,  signed 
by  several  villagers  asking  the  Court  to 
approve  of  the  nomination  of  Venkatarama 
Iyer.  There  was  another  mahazar  dated 
15th  December  1923,  asking  the  Court  to 
appoint  Venkateswara  Iyer,  the  trustee 
hitherto  in  office.  While  that  was  pending, 
the  present  petitioner  and  appellant  Sivan 
Pillai,  who  claimed  to  have  an  interest  in 
the  trust,  filed  a  petition  supporting  the 
candidature  of  Venkatarama  Iyer.  The 
District  Judge  dismissed  the  petition  and 
from  his  order  this  is  an  appeal  or  a  revi- 
sion. So  far  as  the  records  show,  the  Dist- 
rict Judge  was  in  error  in  stating  that  the 
4th  respondent  was  to  be  treated  as  holding 
office  for  the  third  term.  He  seems  to  have 
failed  to  appreciate  that  under  the  scheme, 
it  was  necessary  to  have  a  nomination  by 
the  villagers  and  an  approval  by  the  Court 
before  any  trustee  could  be  appointed  or 
his  term  renewed.  The  District  Judge 
might  have  called  upon  the  villagers  to 
make  a  nomination  of  the  person  consider- 
ed by  the  villagers  to  be  the  most  fit  to 
be  appointed  as  a  trustee  upon  the  expiry 
of  the  term  of  Venkateswara  Iyer,  and  if 
the  nomination  so  made  by  them  had  his 
approval,  he  might  have  appointed  the  no- 
minee. It  does  not  appear  whether  there 
was  any  such  nomination  and  confirmation. 
But  the  District  Judge  made  an  order  dis- 
posing of  the  petitions  of  Venkatarama  Iyer 
and  of  Sivan  Pillai.  The  petition  of  the 
former  was  that  the  present  trustee  should 
be  removed.  That  request  could  not  be 
granted  by  the  District  Judge  upon  a, peti- 
tion of  this  nature.  For  the  removal  of  a 
trustee,  it  would  be  necessary  to  bring  a 
separate  suit,  in  the  absence  of  any  pro- 
vision in  the  pcheme  for  his  removal. 
Upon  Sivan  Pillars  i,  e ,  the  petitioner's 
petition  it  is  not  clear  what  order  the  Dis- 


trict Judge  could  have  made  other  than 
to  dismiss  it,  as  it  was  not  competent.  The 
scheme  does  not  provide  for  independent 
petitions  being  put  in  to  support  the  can- 
didature of  various  claimants  for  the  office 
of  trustee  As  the  District  Judge  has  not 
acted  without  jurisdiction  or  committed 
any  material  irregularity  in  his  order  dis- 
missing the  petition,  we  cannot  interfere  in 
revision. 

As  regards  the  appeal,  there  is  a  pre- 
liminary objection  that  no  appeal  will  lie. 
In  the  light  of  the  recent  Privy  Council 
decision  in  Sevak  Jeranchod  Bhogilal  v. 
Dakore  Temple  Committee  (1)  and  the  de- 
cisions of  this  Court  in  Lokasikhamam  Mu* 
daliar  v.  Thiagaroya  Chettiar  (2)  and  Run- 
ganatha  v.  Knshnaswami  (3)  I  am  of 
opinion  that  an  appeal  will  not  lie  against 
the  order  made  by  a  Court,  as  in  this  case 
exercising  a  power  given  to  it  by  a  pro- 
vision in  the  scheme  and  that  such  an  order 
is  not  an  order  made  in  execution.  In 
Prayaga  Doss  Jee  Varu  v.  Tirumala  Purisa 
Snrangacharyulu  (4)  there  is  an  observa- 
tion that  the  order  to  be  made  by  a  District 
Court,  in  that  case  appointing  a  treasurer 
in  a  scheme  of  management  of  a  devas* 
thanam,  should  be  considered  as  an  order 
made  in  execution.  But  in  view  of  the 
decision  of  the  Privy  Council  to  which  I 
have  referred,  I  do  not  think  we  are  bound 
by  that  observation  which  was  made  with 
reference  to  the  circumstances  of  the  parti- 
cular scheme  concerned  in  that  case.  The 
appeal  and  the  revision  petition  are  dis- 
missed. As  the  District  Judge's  order  was 
somewhat  ambiguous,  there  will  be  no  order 
as  to  costs. 

Madhavan  Nair*  J.—  I  entirely  agree 
with  the  order  proposed  by  my  learned 
brother,  I  will  just  say  a  few  words  only 
about  the  preliminary  objection.  In  view 
of  the  decision  of  the  Privy  Council  in 
Sevak  Jeranchod  Bhogilal  v.  Dakore 
Temple  Committee  *(1),  I  think  it  must  be 
held  that  the  order  is  not  subject  to  appeal 
under  s.  47,  C.  P.  C.  In  that  case  it  was 
held  by  the  Privy  Council  that  an  order 
passed  by  the  District  Judge  affirming  or 

(1)  87  Ind.  Cas,  313,  49  M.  L  J    25,  23  A   L  J    555; 
(1925)  A  I  R.  (P  C.;  155,  L   R.  6  A  (P,  C  )  117;  (1925; 
M  W  N  474,  2  O  W  N  535,  41  C.  L  J.  623,  22  L.  \V. 
216,  27  Bom  L  R  872  (P.  C,). 

(2)  38  Ind.  Cas.  415,  5  L.  W.  596;  (1917)  M  W  N  420. 

(3)  75  Ind,  Cas,  189,18  L    W  237;  (1923)  M  W.  N, 
664,  47  M  139;  (1924)  A.  I  R.  (M)  369. 

(4)31  M.406j4M,  L,  T.  92. 


PAttOHAM  LAL  tf.  MUHAMMAD  TAQtfB. 


[92 1.  C. 


disaffirming  the  rules  made  by  a  Committee 
of  management  in  pursuance  of  directions 
in  a  scheme  settled  by  it,  cannot  be  made 
the  subject-faiatter  of  an  appeal  under  s.  47, 
0.  P.  C.    The  order  that  is  now  complained 
against  comes    within  the    scope  of   that 
ruling.    In  this  order,  the  learned  District 
Judge  refused  to  accept  the  nomination  by 
the  villagers  of  one  Venkatarama  Iyer  in 
pursuance  of  a  "scheme"  settled  under  s.  92, 
C.  P.  C.,  and  treated  the  present  trustee  as 
continuing  in  the  office.   Mr.  T.  M.  Krishna- 
swami  Iyer  who    appears    for  the  appel- 
lant has  sought  to  distinguish  the  Privy 
Council  case,  on  the  ground,  that  what  their 
Lordships  stated   in  that   case  amounted 
to    this   only,    namely,    that  applications 
with  regard  to  the  scheme  decree    settled 
in  that  case  should  have  been  made  to  the 
Privy  Council,  as  the  scheme  decree  was 
one  finally  passed   by    the  Privy  Council. 
I  cannot  accept  this  argument.    There  is 
no  justification  for  such  a  contention  in 
the  judgment  itself.      The    argument  in- 
volves   the    assumption    that   the    Privy 
Council  decree  is  still  not  a  final  and  com- 
plete decree,  that  the  Privy  Council  should 
be  considered  to  have  given  directions  to 
the  District  Court  to  frame  rules   and  to 
submit  the  District    Court's  recommenda- 
tions and  that  it  is  for  the  Privy  Council 
to  pass  orders  after  receiving  such  recom- 
mendations from  the  District  Court    Such 
an  argument  was  put  forward  in  Prayaga 
Doss  Jee  Varu  v.  Thirumala  Purisa  Sri* 
rangacharyulu  (4)  and  it  is  thus  met  by 
the    learned  Judges  <who   overruled    the 
argument:    *'It  is  true  that  their  Lordships 
have  statutory  authority  to  make  references 
under  s.   17  of    the  Privy  Council  Act,  3 
and  4  Will  IV,  Cap.  41,  in  which  case  the 
referee  would  have  to  report  to  their  Lord- 
ships, and  the  case  would  be    adjourned 
pending  the    receipt  of  the  report  as  in 
Hutchinson  v.  Gillespie  (5)  but  in  the  pre- 
sent case  it  is,  we  think,  clear  from   the 
judgment  and  the  order  that  their  Lord- 
ships  did  not  intend  to  make  any  suoh 
reference  but  disposed  of  the  appeal  finally, 
leaving  the  directions  contained  in  their 
judgment    to  be   executed    in   the  usual 
manner".    I  think  similar  observations  may 
be  made  in  this  case  also  with  reference  to 
the  suggestion  made  by  Mr.  T.  M.  Krishna- 
svvami  Iyer. 

This  Court  has  already  held  in    a  deci- 
sion in  Lokasikham&ni  Mudaliar  v.       ' 

(5)  (1838)  2jMoo.  P.  0^243;  12  E,;R,  997,    ' 


garoya  Chettiar  (2)  which  was  followed  in 
Ru'nganatha  v.  Knshnaswami  (3)  that  di- 
rections given  effect  to  under  the  provi- 
sions of  the  scheme  cannot  be  made  the 
subject-matter  of  an  appeal  under  s.  47,  C. 
P.  C.  See  also  the  unreported  decision 
in  Vythilinga  Mudaliar  v.  Mahadeva  lyir 
in  Civil  Revision  Petition  No.  645  of  1924. 
Two  decisions,  viz.,  Ponnambala  Tambiranv. 
Sivaganana  Desika  GnanaSambawdha  Pan- 
dara  Sannadhi  (6)  and  Prayaga  Doss  Jee 
Varu  v.  Tirumala  Purisa  Srirangachar- 
yulu  (4),  have  been  relied  upon  by  the 
learned  Vakil  for  the  appellant  in  support 
of  his  argument.  It  may  be  pointed  out 
that  the  proceedings  referred  to  in  the  de- 
cision in  Ponnambala  Tambiran  v.  Sivag* 
nana  Desika  Gnana  Sambanda  Pandara- 
sannadhi  (6)  did  not  relate  to  any  scheme 
which  was  settled  by  the  Court  under  s.  92, 
C.  P.  C  and,  therefore,  that  decision  is  not 
obviously  applicable.  As  regards  Prayaga 
Doss  Jee  Varu  v.  Tirumala  Purisa  Sriranga- 
charyulu(4)  I  agree  with  my  learned  brother 
in  thinking  that  after  the  Privy  Council 
decision  in  Sevak  Jeranchod  Bhogilal  v. 
Dakore  Temple  Committee  (1)  it  cannot  be 
relied  upon  as  an  authority  to  show  that 
the  order  in  this  case  is  appealable  under 
s.  47,  C.  P.  C. 
v.  N.  v.  Appeal  and  Petition  dismissed. 

Z.    K. 

(6)  17  M,  343;  21 1.  A.  71;  6  Sar.  P  0.  J.   434;  6  Ind. 
Dec.  (N.  s.)  238  (P.  C.). 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  100  op  1925. 

November  25,  1925. 

Present:— Mr.  Justice  Mukerji. 

PANCHAM  LALAND  OTHERS— DEFENDANTS 

— APPLICANTS 

versus 
MUHAMMAD  YAQUB  KHAN  AND  OTHERS 

—PLAINTIFFS— OPPOSITE  PARTIES 
Civil  Procedure  Code    (Act    V  of  1908),  8. 115,   0. 
XXIII,  r.  I—Suit  dismissed  on  question  of  technicality 
— A  ppeal— Withdrawal  of  suit  —Revision 

Where  a  suit  is  dismissed  on  a  question  of  techni- 
cality and  on  appeal  the  Appellate  Court  allows  the 
suit  to  be  withdrawn  with  liberty  to  bring  a  fresh 
suit,  the  High  Court  will  not  interfere  with  the  order 
in  revision. 

An  error  of  judgment  is  not  a  ground  for  inter- 
ference  in  revision. 

Civil  revision  from  an  order  of  the  Ad- 
ditional Subordinate  Judge,  Farrukh- 
abad,  dated  the  23rd  March  1925, 


I.  0,  1926]  QAMAE  JAHAN  BE3AM  t*.  MtJNtffeY  MtftzA. 


5*9 


Mr.  N.  P.  Asthana,  for  the  Applicants. 
Mr.  M.  N.  Raina,  for  the  Opposite  Parties. 
t  JUDGMENT.— I  do  not  think  I  should 
interfere  in  this  case  in  revision.      Certain 
minors  brought    a  suit   for    recovery  of  a 
certain  property  on  the  strength  of  a  deed 
of  gift   alleged  to   have  been  executed  by 
their  mother,  who  is  said  to  be  still  alive, 
iu  their  favour.    The  deed  of  gift  was  a 
registered     document.    But    the    learned 
Munsif  returned  it  because  a  marginal  wit- 
ness had  not  been  called  to  prove  it,    The 
executant  of  the  deed  was  a   Muhammaden 
and  the    registration   was  enough  to  give 
it  validity.  The  document  had  been  proved 
otherwise  than  by  the  examination  of  a 
marginal  witness.    A  further  question  was 
whether  the  father  who  executed    the  docu- 
ment on  behalf  of  his  wife  had   an  authori- 
ty.   There  was  a  mutation    of    names  in 
favour  of  the  minors.    It  was  really  a  ques- 
tion of  technicality  on  which  the  suit  of 
the  plaintiffp  failed    because  the  power  of 
attorney  had  not  been  filed.    In  the  cir- 
cumstances, I  am    not  in  a  position  to  say 
that  the  Judge,  in  allowing  the  plaintiffs 
to  ^withdraw    their     suit,    acted    without 
jurisdiction.    He  may  have  committed  an 
error  of   judgment  and  even  of  that  I  am 
not  quite  sure. 

The  petition  is  dismissed  with  costs 
which  will  include  Counsel's  fees  in  this 
Court  on  the  higher  scale. 

z.  K.  Petition  dismissed. 


OUDH    JUDICIAL  COMMIS- 
SIONER'S COURT. 

FIRST  CIVIL  APPEALS  Nos.  2,  4,  7,  3,  5  AND  6 

OP  1924. 

April  15,  1925. 

Present  .-—Mr.  Dalai,  J.  0. 

QAMAR  JAHAN  BEGAM  AND  ANOTHER 

— DEFENDANTS  —APPELLANTS 

versus 
MUNNEY  MIRZA-PLAINTIFF— 

RESPONDENT. 

Transfer  of  Property  Act  (IV  of  im),  s.  95— 
Limitation  Act  (IX  of  1908),  Sch,  /,  Arts  115,  120, 
182— Decree  for  arrears  of  maintenance  charged  on 
immoveable  property —Decree  paid  off  by  one  of 
several  judgment-debtors— Charge— Suit  to  enforce 
charge— Limitation,  commencement  of— Interest,  whe- 
ther can  be  recovered— Charge,  whether  can  be  enforced 
against  bcma  fide  purchaser  for  value — Notice  to 
husband,  whether  notice  to  wife. 

The  provisions  of  9.  95  of  the  Transfer  of  Property 
Act  are  not  confined  to  usufructuary  mortgagee  where 
the  mortgagee  obtains  possession,  but  thft  words  as  to 
possession  are  to  be  read  as  applying  to  cases  where  it 


is  possible  from  the  nature  of  the  mortgage  to  obtain 
possession,  [p,  560,  col.  1,1 

Where  in  order  to  avoid  the  sale  of  certain  property 
charged  with  the  payment  of  a  maintenance  allow- 
ance, one  of  the  judgment-debtors  against  whom  the 
decree  for  arrears  of  maintenance  has  been  obtained 
pays  off  the  decree,  he  obtains  a  charge  on  the  pro- 
perty in  respect  of  the  amount  of  the  shares  of 
the  other  judgment-debtors  which  they  were  liable  to 
pay  under  the  decree  A  suit  to  enforce  such  a  charge 
is  governed  by  Art  132  of  Sch  I  to  the  Limitation 
Act  and  the  period  of  limitation  begins  to  run  from 
the  date  of  the  payment  by  the  plaintiff,  So  far, 
however,  as  a  claim  to  interest  on  the  amount  paid 
by  the  plaintiff  on  behalf  of  the  defendants  is  con- 
cerned, the  claim  would  be  governed  by  Art  115  of 
Sch  I  to  the  Limitation  Act  and  not  by  Art  120  and 
interest  would  be  recoverable  only  for  three  years, 
[p.  561,  col.  1] 

Such  a  charge  cannot,  however,  be  enforced  as 
against  an  auction-purchaser  who  has  purchased  the 
property  in  good  faith  for  value  without  notice,  [p  561, 
col.  2.1 

In  India  the  knowledge  of  a  husband  cannot  be 
treated  as  tantamount  to  the  knowledge  of  the  wife 
who  is  a  pardanaehin  lady,  [ibid.] 

First  appeal  against  the  judgment  and 
decree  passed  by  the  Additional  Sub- Judge, 
Lucknow,  dated  17th  September  1923  in 
Suit  No.  259/102  of  1922. 

Mr.  Anant  Prasad  Nigam,  for  the  Appel- 
lants. 

Messrs.  M.  Wasim  and  D.  K.  Seth,  for  the 
Respondent. 

JUDGMENT.— These  six  appeals  are 
filed  from  decrees  in  two  suits  of  contribu- 
tion Nos.  258  and  259  of  1922.  The  suits 
were  brought  by  one  Munney  Mirza  for 
contribution.  Two  persons  Babban  Lai  and 
Mohammad  Asghar  obtained  two  decrees 
for  arrears  of  guzara  charged  upon  immove- 
able property.  Muaney  Mirza  was  one  of 
the  defendants  and  paid  off  the  decretal 
amounts  thereby  saving  the  immoveable 
property  from  sale.  He  came  to  Court  on 
the  allegation  that  such  payment  gave  him 
a  charge  on  the  property  to  recover  propor- 
tionately their  shares  from  the  other  defend- 
ants. There  were  several  defendants  and 
a  separate  decree  was  desired  against  every 
one  of  ^them  by  sale  of  the  property  in  his 
possess!  6n. 

Appeals  Nos.  3,  4  and  7  relate  to  suit 
No.  2£8.  Appeal  No.  2  is  filed  by  two  of 
the  defendants  Qamar  Jahan  Begam  end 
Roshan  Jahan  Begam.  Appeal  No.  4  is  filed 
by  one  of  the  defendants  Dwarka  Nath% 
while  Appeal  No.  7  is  filed  by  the  plaintiff 
Munney  Mirza  against  one  of  the  defend* 
ants  Abida  Begam  against  whom  his  suit 
was  dismissed  by  the  Trial  Court.  Appeals 
Nos.  5,  and  6  are  corresponding  appeals 
relating  to  suit  Ro,  259, 


560 


QAMA&  JAHAN  BEGAM 


In  the  appeals  by  the  two  ladies  and 
Dwarka  Nath  the  common  grounds  are  (1) 
that  the  suit  was  barred  by  limitation  and 
(2)  that  interest  on  the  money  due  was 
recoverable  only  for  three  years  prior  to  the 
institution  of  the  suit  and  not  for  6  years 
prior  to  that  date  as  has  been  held  by  the 
lower  Court. 

There  is  an  additional  ground  in  the 
appeal  by  the  ladies  that  in  Appeal  No.  3 
there  is  a  miscalculation  which  resulted  in 
each  of  the  ladies  being  made  to  pay 
Rs.  111-12-3  in  excess  of  what  was  due  from 
her. 

The  plea  of  limitation  cannot,  in  my 
opinion,  be  sustained.  Section  95  of  the 
Transfer  of  Property  Act  lays  down  that 
where  one  of  several  mortgagors  redeems 
the  mortgaged  property  and  obtains  posses- 
sion thereof  he  has  a  charge  on  the  share 
of  each  of  the  other  co-mortgagors  in  the 
property  for  his  proportion  of  the  expense 
properly  incurred  in  so  redeeming  and  ob- 
taining possession.  There  is  no  question  that 
Munney  Mirza  did  redeem  the  mortgaged 
property  by  paying  off  the  decretal  amounts 
in  both  the  decrees.  The  Privy  Council 
has  finally  settled  that  the  provisions  of  this 
section  are  not  confined  to  usufructuary 
mortgages  where  the  mortgagee  obtains 
possession  but  the  words  as  to  possession 
are  to  be  read  as  applying  to  cases  where 
it  is  possible  from  the  nature  of  the  mort- 
gage to  obtain  possession  [Yakub  Ali  Khan 
v.  Kishan  Lai  (1)].  It  is  interesting  to  note 
that  the  section  was  so  interpreted  firat  of 
all  by  a  Single  Judge  of  this  Court  in  1901 
[Ghulam  Maula  Khan  v.  Banno  Khanam  (2).] 
Subsequently  in  1903  this  view  was  adopted 
by  a  Bench  of  the  Allahabad  High  Court 
in  Bhagwan  Das  v.  Ear  Dei  (3).  The  judg- 
ment of  their  Lordships  of  the  Privy 
Council  was  delivered  in  1905.  In  Ibn 
Hasan  v.  Brijbhukan  Saran  (4)  Mr.  Justice 
Banerji  pointed  out  that  even  apart  from 
the  provisions  of  s.  95  such  a  payment  by 
one  of  the  judgment-debtors  raises  a  charge 
on  the  property.  [Ibn  Hasan  v.  Brijbhukan 
Saran  (4).J  There  can  thus  be  no  doubt  as 
to  the  creation  of  a  charge. 

The  next  question  is  whether  the  charge 
is  created  .from  the  date  of  payment  or 
whether  the  judgment-debtor  who  makes 

(1)  28  A.  743;  A.  W.  N.  (1906)  216. 

(2)  4  0.  C  273 

(3)  26  A.  227;  A.  W.  N.  (1904)  3, 

(4)  26  A,  407  at  p,  443;  A,  W.  N.  (1904)  740;  1  A.  L. 
J.  148. 


v.  HUNNiy  MIB2A.  [92  L  0. 1926] 

the  paymant  is  subrogated  to  the  rights  of 
the  decree-holder  and  his  period  of  limita- 
tion runs  from  the  date  of  the  decree-holder's 
mortgage.  A  Bench  of  the  Calcutta  High 
Court  has  held  in  favour  of  the  view  of 
subrogation  which  appears  to  be  supported 
by  observations  in  Ghose's  Law  of  Mortgage 
iRajKamini  Debi  v.  MukandaLalBandapad- 
hya  (5).]  The  learned  commentator  deals 
with  the  subject  at  page  397  of  the  Law  of 
Mortgage  Vol.  I,  5th  Edition.  He  details  the 
remedies  open  to  the  person  acquiring  the 
charge  and  says  : — "He  may  sue  simply  for 
reimbursement,  if  the  defendant  is  per- 
sonally liable,  within  the  period  prescribed 
for  such  suits  by  the  Statute  of  Limitation  " 
(that  is,  3  years  under  Art.  9(J  of  the 
Limitation  Act).  uHe  may  also  sue  to 
enforce  the  right  of 'the  mortgagee  to  follow 
the  mortgaged  property  but  in  such  case 
he  would  occupy  the  same  position  as  the 
mortgagee,  supposing  he  had  not  bsen 
redeemed,  and  was  the  plaintiff  in  the 
suit.  The  period  of  limitation  will  not  be 
either  longer  or  shorter.1' 

If  this  view  is  adopted  the  appeal  will 
succeed  because  the  charge  in  favour  of 
the  original  decree-holders  Babban  Lai  and 
Mohammad  Asghar  arose  in  1910. 

I  am,  however,  of  opinion  that  the  view 
expressed  by  the  learned  commentator  is 
not  supported  by  the  authority  of  Indian 
cases  except  the  cases  in  the  Calcutta 
Weekly  Notes  already  referred  to.  A  Bench 
of  this  Court  held  in  Makhdum  Khan  v. 
Jadi  (6)  that  the  period  of  limitation  runs 
from  the  date  when  the  redeeming  co-mort- 
gagor sets  up  his  adverse  title.  Here  the 
case  was  not  similar  to  the  one  before  us 
because  the  suit  was  one  for  redemption 
and  not  for  sale.  The  argument  however 
would  apply,  first  as  a  redeeming  co-mort- 
gagor must  redeem  within  12  years  of  the 
payment  by  one  of  the  mortgagors,  the 
mortgagor  who  paid  can  enforce  his  charge 
within  that  time.  In  the  case  of  Bhagwan 
Das  v.  Ear  Dei  (3)  of  the  Allahabad  High 
Court  already  referred  to  it  was  held  that 
the  suit  was  governed  as  to  limitation  by 
Art.  132  of  the  Limitation  Act.  The  same 
was  the  view  of  Mr.  Justice  Banerji  in  the 
case  of  Ibn  Hasan  v.  Brijbhukan  Saran  (4). 
In  the  nature  of  things  there  will  be  no  merit 
in  acquiring  a  charge  if  the  limitation  is  to 
run  from  the  date  of  the  mortgage  which  is 


(5)  57  Ind.  Oas,  I 
W  9  0.  0,  91. 


3;  25  C.  W.  N,  283, 


I.  0.  1926] 


QAMAR  JAHAN  BfiGAU  V.  M0NNEY  MlKZA. 


56l 


paid  off  because  in  most  cases  the  suit  on 
the  prior  mortgage  will  be  filed  about  the 
time  when  the  period  of  limitation  is  to 
end.  In  such  cases  the  judgment-debtor 
who  eaves  the  property  by  paying  off  the 
entire  decretal  amount  will  have  no  secu- 
rity and  will  be  relegated  to  a  right  of  a 
personal  decree  only.  I  hold  that  the  period 
of  limitation  started  to  run  from  the  date  of 
the  payment  of  the  two  decrees  by  Munney 
Mirza  in  1913  and  that,  therefore,  the  pre- 
sent suits  instituted  in  1922  are  within 
time. 

As  to  question  of  interest  the  argument 
on  behalf  of  the  respondent  was  that  there 
was  no  Article  which  provided  for  it  and 
that,  therefore,  Art.  ^120  will  apply.  The 
argument  on  behalf  of  the  appellants  was 
that  Art.  115  applied  and  that  interest  by 
way  of  damages  could  be  recovered  only  for 
three  years  and  no  more.  Article  115  pro- 
vides limitation  for  compensation  for  the 
breach  of  any  contract  expressed  or  implied 
not  in  writing,  registered  and  not  heiein 
specially  provided  for.  I  am  of  opinion 
that  the  language  of  this  Article  will  meet 
the  present  case.  Here  compensation  is 
claimed  for  breach  of  an  implied  contract 
that  the  co-mortgagor  would  be  recouped 
for  the  money  paid  by  him  on  behalf  of  the 
other  mortgagors.  It  is,  therefore,  not 
necessary  to  seek  the  aid  of  Art.  120.  I 
hold  that  interest  was  recoverable  for  three 
years  only. 

The  contention  as  to  miscalculation  by 
the  lower  Court  is  correct.  In  one  case  the 
value  of  the  property  held  by  the  two 
ladies  is  assessed  at  Rs.  97,000  for  the  pur- 
poses of  contribution  and  in  another  suit 
at  half  that  amount.  The  plaintiff  ought 
to  have  noticed  this  conflict  in  the  original 
decrees  obtained  by  Babban  Lai  and  Mo- 
hammad Asghar  and  arrived  at  a  common 
basis  for  valuing  the  property.  It  will  be 
bringing  a  Court  of  law  into  ridicule  to 
value  the  same  property  for  the  same  year 
at  one  figure  in  one  suit  and  at  double  that 
figure  in  another  suit  instituted  at  thesame 
time.  Ths  appellant  ladies  are  entitled  to 
reduction  as  claimed. 

I  next  conle  to  the  appeals  filed  by 
Munney  Mirza  against  Musammat  Abida 
Begam,  Appeals  Nos.  7  and  6.  The  lower 
Court  held  that  Musammat  Abida  Begam 
was  bona  fide  purchaser  for  value  without 
notiefe  of  the  charge  of  Munney  Mirza.  It, 
therefore,  dismissed  Munney  Mirza's  suit 
against  her,  It  was  argued  as  a  general  prin- 

36 


ciple  that  the  charge  can  be  enforced  even 
against  bona  fide  purchasers  without  notice. 
Such  is  not  the  view  adopted  by  this  Court. 
There  is  a  ruling  of  a  Single  Judge  of  this 
Court  to  the   contrary  effect.    The  learned 
Judicial    Commissioner,  now   Mr.     Justice 
Lindsay  held  in   Parbhu  Dayal  v.  Babban 
Lai  (1)  that  such  a  charge    could   not  be 
enforced  as    against   the  auction-purchaser 
who  is  a  bona  fide  purchaser  for  value  with- 
out notice.    Kulings  were  quoted  in  con- 
flict with  this    opinion:     they  are  of  the 
Allahabad  High  Court.   One  of  them  Maina 
v.  Bachchi  (8)  was  referred  to  by  the  learned 
Judicial  Commissioner  in  Parbhu  Dayal  v. 
Babban  Lai  (7)  and  dissented  from.  There  is 
a  subsequent  ruling  of  a  Bench  of  the    Allah- 
abad High  Court  Ma hadeo  Prasadv.  Anandi 
Lai  (9).    In  that    judgment  some  cases  of 
the  Calcutta  High  Court  in  agreement  with 
the  ruling  of  this   Court  are  quoted.  There 
is  thus    conflict  of  authority   between    the 
Allahabad  and  Calcutta  High  Courts  and  I 
see    no  reason  to  refer    the    matter    to    a 
Bench  of  t\\o    Judges  when   a  judgment 
exists  for  the  guidance  of    this   Court  de- 
livered by  a  Judge  of  acknowledged  merit. 
The  next  question  is  whether  the  lady  re- 
spondent   Musammat    Abida   Begam    had 
notice    of    the  charge  of  Munney    Mirza. 
There  is  some  evidence  to  show  that    her 
husband  was  aware  of  the  charge  under 
which  Babban  Lai  and  Mohammad  Asghar 
sued  for  the  recovery  of  arrears  of   guzara 
money.     First  of  all,  the  knowledge  of  the 
husband     cannot,  specially    in  India,   be 
treated  as  tantamount  to  knowledge    of  the 
wife,  a  pardanashin  lady  ;  secondly,  know- 
ledge   of    the  charge   under  the    Will  of 
Darogha  Wajid  Ali  ialls  short  of  the  know- 
ledge which  must  be  imputed  to  the  lady 
before  it  can  be  decided  that  she  had  notice 
of  the  plaintiff's  charge.    There  is  nothing 
to  indicate  her  knowledge  of  Munney  Mirza 
having  paid  the  decrees  of  Babban  Lai  and 
Mohamrrfud  Asghar.    I  hold  that  she  was  a 
bona     fide    purchaser    for    value    without 
notice. 

In  the  result  I  dismiss  Appeals  Nos.  6 
and  7  with  costs.  Appeal  No.  3  is  decreed 
to  the  extent  of  Rs.  223-8-6  with  interest 
calculated  by  the  lower  Court  on  this 
amount  for  six  years.  It  is  further  decreed 

(7)  23  Ind.  Cas.  867,  \  0.  L  J.  43 
8)  28  A  C55;  3  A.  L.  J.  551;  A.  W.  N.  (1906)  165, 
(9)  92  Ind,  Cas.  348;  22  A.  L.  J.  887;  L,  R.  5  A.  749 
OiV.;(l91l)A.I.R.  (A.)  60;  47  A,  90, 


562 


TAHILHAM  T4BACHAND  V,  VA8S0AUL  DEUMAL, 


[921.0. 


for  half  of  the  balance  of  interest  because 
I  ha\re  held  that  interest  is  permitted  for 
three  years  only  and  not  for  six  years.  The 
rest  of  the  appeal  is  dismissed.  Parties 
fthali  receive  and  pay  costs  according  to 
ttteir  success  and  failure.  As  to  Appeals 
&03.  2,  4  and  5  they  are  decreed  with 
tespect  to  half  the  interest  made  payable  by 
the  lower  Court  by  Kamar  Jahan  Begam 
and  Roshan  Jahan  Begam  and  Dwarka 
Nath  (in  Suit  No.  258  with  respect  to  the 
two  ladies  and  in  Suits  Nos.  258  and  259 
with  respect  to  Dwarka  Nath).  The  rest  of 
these  appeals  are  dismissed.  Parties  shall 
receive  and  pay  costs  according  to  their 
success  and  failure, 
z.  K,  Order  accordingly. 


BIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

ORIGINAL  CIVIL  Suit  No.  290  oF  1925. 

September  29,   1925. 

Present:— Mr.  Rupchand  Bilaram,  A.  J.  C* 
TA'HILRAM  TAR  ACH  AND -PLAINTIFF 

versus 

VASSUMAL  DEUMAL  AND  ANotHER— 

DEFENDANTS, 

Civil  Procedure  Code  (Act  V  of  1008),  8  36,  0.  XII, 
r.  6 —Admission,  judgment  on — Procedure —Decree, 
whether  must  be  drawn  up. 

In  order  to  enable  a  plaintiff  to  apply  for  judg- 
tnent  under  the  provisions  of  0  XII,  r,  6,  C.  P.  C  , 
it  is  not  necessary  that  he  should  relinquish  that 
part  of  the  claim  or  relief  which  is  not  admitted  by 
the  defendant  He  is  entitled  to  judgment  to  the  extent 
of  the  admission  made  by  the  defendant  [p  563,  col. 

10 

Premsukdas  Assaram  v  UdairamGungabux,  44  Jnd. 
Cas.  233,450  138;  22  C  W.  N  204;  28  C  L  J  498, 
and  Ellis  v.  Allen,  (1914)  1  Ch  804  at  p.  908,  83  L.  J. 
Oh.  590;  110  L  T  479,  referred  to. 

United  Telephone  Co  v.  Donohoe,  (1886^  31  Ch.  D. 
399;  55  L.  J.  Oh.  480;  54  L.  T.  34,34  W.  R  326,  dis- 
tinguished. 

On  a  judgment  being  passed  under  O.  XIIt  r  6, 
0.  P.  C.,  it  is  not  necessary  to  have  a  decree  drawn 
up.  The  plaintiff  can  in  such  a  case  enforce  payment 
in  execution  proceedings  under  s.  36,  0.  P.  C.  \ibid.\ 

Application  under  0.  XII,  r.  6,  0.  P.  C. 

Mr.  Isardas  Udharam,  for  the  Plaintiff. 

Mr.  T^Tachand  Khimandas,  for  the  De- 
fendants. 

JUDGMENT.— The  plaintiff  has  ap- 
plied under  0.  XII,  r.  6,  C.  P.  C.,  for  judg- 
ment against  defendant  No.  1  for  Rs.  1,131-12 
on  the  admission  made  by  him  in  his  plead- 
ing. 

The  plaintiff's  $uit  is  one  for  recovery  of 
Us,  3, 1)90-15-0  and  interest  due  theieoa being 


the  sum  said  to  have  been  found  due  on  a 
settlement    of     accounts    of    a    dissolved 
partnership  and  shown  in  the  potamel  which 
was  copied  out  in  the  partnership  cash  book 
and  said  to  have  been  signed  by  the  parties. 
According  to  the  plaintiffs  case  the  cash  book 
is  in  the  possession  of  the  defendants  and 
that  both  the  defendants  w/ho  were  partners 
in  the  business  are  liable  tohim  for  payment 
of  the  amount  found  due.  The  defence  of  de* 
fendant  No.  2  is  that  there  was  a  settlement 
of  partnership    accounts  by  which  it  was 
agreed  that  whatever  sum  be  found  due    to 
the  plaintiff  was  to  be  paid  to  him  by  defend- 
ant No.  1.    The  defence  of  defendant  No.  1 
on  the  other   hand  is   that  a  potamel  was 
drawn  and  copied  out  in  the  cash  book  but 
it  was  neither  agreed  to  nor  signed  by  the 
parties,  that  he  is  not  aware  if  that  potamel 
showed  this  amount  to  be  due  that  the  cash 
book  is  not  with  him  and  that  if  the  accounts 
are  to  be  taken  the  sum  due  to  the  plaintiff 
would  be  Es.  1,131-12-0  which  he  is  ready 
and  willing  to  pay.    From  this  defence  it 
appears  that  he  has  undertaken  the  liabili- 
ty to  the  plaintiff  for  the  amount  which  may 
be  found  due  or  at  any    rate  to  pay  the 
amount  which  he  admits  to  be  due.    The 
admission    of  liability    to    the  extent   of 
Rs.  1,131-12-0  is  as  clear  as  it  could  possibly 
be.    It  is,  however  con  tended  by  the  learned 
Pleader  for  defendant  No.  1  that  the  plaint- 
iff cannot  claim  judgment  for  the  amount 
admitted  to  be  due  unless  he  gives  up  the 
balance  of  his  claim  and  reliance  has  been 
placed  on  the  decision  in  United  Telephone 
Co*  v.  Donohoe  (1).  In  this  case  which  related 
to  an  infringement  of  a  patent  the  defend- 
ant admitted  ten  instances  of  the  infring- 
ment  complained  of  but  denied  that  he  had 
committed  others.    Thereupon   the  plaint- 
iffs moved  for  judgment  upon  theadttiissionfi 
in  the   pleadings  and    the  Court  of  first 
instance    granted    the    injunction    sought 
against  the  infringement  by  the  defendant 
of  the  plaintiff  patent  but  refused  an  in- 
quiry as  to  damages.    The  Court  of  Appeal 
held  that  the    plaintiffs    were    entitled  to 
damages  but  limited  it  to  the  ten  instances 
of  infringement  admitted  on   the  ground 
that  the  judgment  having  been    obtained 
upon  a   motion   for    judgment    upon  the 
pleadings,    the   plaintiffs  were   bound    to 
take  the  negative  ps  well  as  the  affirmative 
allegations    therein.    As  pointed    out   by 
Sanderson,  C.  J.,  in  Premsukdas  Assaram 

(1)  (1886)  31  Oh.  D.  309;  5o    L,  J,  Ch.  480;  54  U  T 
34;  34  W,  K,  3?6,  n      ' 


60B1ND  Lit  DUTT.t?   OPFiCUk  ASSIGNEE. 


[02  I.  0, 

v.  Udairam  Gungabux  (2)  the  question 
whether  the  Judge  who  in  the  first  instance 
heard  the  application  would  have  had  juris- 
diction to  give  judgment  on  the  admission 
and  to  allow  the  plaintiffs  to  proceed  to  prove 
the  rest  of  their  claim  as  to  the  other  alleg- 
ed infringement  if  such  an  application  had 
been  made  was  not  before  the  Court  and 
that,  therefore,  the  case  of  the  United  Tele- 
phone Co.  v.  Donhoe  (1)  is  no  authority  for 
the  proposition  that  the  plaintiff  can  move 
for  judgment  only  on  his  relinquishing  the 
rest  of  his  claim  or  relief. 

The  very  object  of  this  rule  is  to  enable  a 
party  to  obtain  speedy  judgment  at  least  to 
the  extent  of  the  relief  which  according  to  the 
admissions  of  the  defendant  the  plain  tiff  is  in- 
dubitably en  titled  and  the  rule  has  been  made 
wide  enough  to  afford  relief  not  only  in  cases 
of  admissions  made  in  the  pleadings  but  also 
of  admissions  made  de  hors  the  pleadings. 
The  expression  "or  otherwise"  used  in  this 
ruledoes  not  mean  "orotherwise  under  0  XII", 
vide  the  observations  of  Sargeant,  J,,  in 
Ellis  v.  Allen  (3)  on  the  interpretation  of 
the  corresponding  English  Rule,  O.  XXXII, 
r.  6,  Rules  of  the  Supreme  Court.  To 
limit  the  rule  to  cases  where  the  plaint- 
iff accepts  the  admission  of  the  defend- 
ant as  a  whole  either  in  respect  of  the 
claim  as  a  whole  or  any  distinct  and  separate 
part  of  the  claim  where  such  admission  is 
made  in  respect  of  such  distinct  part  would 
be  to  deprive  the  rule  of  its  utility  and  to 
enable  a  dishonest  defendant  to  dictate 
terms  to  the  plaintiff. 

On  the  merits,  I  have  no  hesitation  in 
holding  that  this  is  a  fit  case  in  which  I 
should  in  the  exercise  of  the  discretion 
vested  in  me  by  this  rule  pass  judgment  for 
Rs.  1,131-12-0  against  the  defendant  No.  1 
on  the  admission  made  by  him  and  reserve 
liberty  to  the  plaintiff  to  proceed  with  the 
rest  of  his  claim  against  both  or  either  of 
the  defendants  and  I  order  accordingly.  I 
allow  the  plaintiff  costs  of  one  hearing.  It 
is  not  necessary  to  have  a  decree  drawn  up 
on  this  judgment  as  I  consider  that  it  is 
open  to  the  plaintiff  to  enforce  payment  of 
the  amount  hereby  awarded  as  an  order  in 
execution  proceedings  by  virtue  of  s.  36,  0. 
P.  0. 

P  B,  A,  {Order  accordingly. 

(2)  44  Ind.  Gas,  233,  45  0.  138,  22  0,  W.  N.  201,  28 
0.  L.  J.  498. 

(3)  (19U;  1  Oh,  901  at  p.    908,  83  L.  J,  Oh.  590;  110 
i  479* 


563 


.    . 

(3) 
T, 


CALCUTTA  HIGH  COURT. 

APPLICATION  IN  ORIGINAL  CIVIL  StiiT 

No  559  OP  1«17. 

November  25,  1924. 

Present: — Sir  Sanderson,  KT.,  Chief  Justice, 

and  Mr.  Justice  Buckland 
GOBIND  LAL  DUTT— APPLICANT 

versus 

OFFICIAL  ASSIGNEE  OF  CALCUTTA 
— RESPONDENT. 

Limitation  Act  (IX  of  1908),  ss  5,  12— Calcutta* 
High  Court  Rides,  Ch  XVI,  r  27— Appeal  filed  beyond 
time— Extension  of  time— Delay  in  getting  decree 
drawn  up-~Apphcation  for  office  copy  of  decree,  effect 

of 

Before  an  appeal  can  be  filed,  the  decree  or  order 
must  be  drawn  up  and  the  would-be  applicant  must 
obtain  a  copy  of  the  dcciee  or  order,  which  it  is  his 
duty  to  file  with  the  memorandum  of  appeal  [p.  565, 
col  2] 

By  reason  of  r  27,  Chap  XVI  of  the  Calcutta  High 
Court  Rules,  if  the  party  in  whose  favour  a  decrea 
has  been  made  does  not  apply  to  have  the  decree 
diawn  up  within  four  days  from  the  date  of  the  decree 
any  party  to  the  suit  may  apply  to  have  the  decree 
drawn  up  [p  564,  col  2] 

It  is  not  sufficient  for  a  person  desiring  to  appeal 
to  put  in  a  requisition  for  an  office  copy  without 
taking  any  steps  to  have  the  decree  drawn  up  This 
doea  not  afford  ground  for  extension  of  time  under 
6  5,  Limitation  Act,  in  the  case  of  an  appeal  filed 
beyond  time  on  account  of  delay  in  obtaining  copy  of 
the  decree  [p  565,  col  1  ] 

Time  which  need  not  have  elapsed,  if  the  appellant 
had  taken  reasonable  and  proper  steps  to  obtain  a 
copy  of  the  decree  or  order,  could  not  be  regarded  aa 
'requisite*  time  within  sub-s,  (2)  of  a,  12  of  the  Limita- 
tion Act  [P  565,  col  2  I 

Kamrudam  Hyder  v.  M  N.  Mitter,  89  Ind.  Gas.  277; 
62  0  342,  (1925)  A.  I  R.  (C)  735,  followed. 

Application  against  an  order  of  the 
Registrar,  High  Court,  refusing  to  admit 
memorandum  of  appeal  in  Original  Civil 
Suit  No.  559  of  1917,  decided  by  Mr,  Justice 
Pearson,  on  the  6th  June  1924. 

Messrs.  £.  K.  Ghose  and  A.  A\  Base,  for 
the  Appellant 

Mr.  M.  N.  Kanjilal,  for  the  Respondent. 
JUDGMENT. 

Sanderson,  C.  J*— This  is  an  applica- 
tion on  behalf  of  Qobind  Lai  Dutt,  who 
was  the  defendant  in  the  suit,  that  the 
memorandum  of  appeal  against  the  judg- 
ment and  decree  in  the  suit,  dated  the  6th 
of  June  1924,  which  was  presented  on 
behalf  of  Govind  Lai  Dutt  on  the  IcJth  of 
November  1924  and  which  was  not  ac- 
cepted by  the  Registrar,  should  be  admitt- 
ed. 

The  material  dates  are  as  follows :  The 
decree  was  made  on  the  6th  of  June  1924, 
as  I  have  already  mentioned,  in  favour  of 
the  Official  Assignee  against  the  present 
applicant, 


60BIND  LAL  DUTT  V.  OFFICIAL  ASSIGNEE. 


[92 1,  0. 19261 


On  the  llth  of  June  a  requisition  for 
an  office  copy  of  the  decree  was  made  by 
the  attorney  of  the  applicant  Gobind  Lai 
Dutt. 

Nothing  further  was  done  until  the  7th  of 
August  1924  when  a  requisition  for  drawing 
the  decree  was  made  on  behalf  of  the 
plaintiff. 

This  decree  was  drawn  up,  finally  settled, 
and  signed  on  the  16th  of  November  1924. 
The  stamps  necessary  for  the  office  copy 
were  furnished  on  the  12th  of  November 
and  the  memorandum  of  appeal  was  pre- 
sented on  the  18th  of  November  :  on  the 
19th  it  was  rejected  by  the  Officiating 
Deputy  Registrar  on  the  following  ground: — 
**As  the  requisition  for  drawing  up  the 
decree  was  not  given  within  twenty  days 
from  the  date  of  the  decree,  this  memoran- 
dum cannot  be  accepted." 

The  learned  Counsel  who  appeared  for 
the  applicant  stated  that  he  wa»  bound  to 
admit  that  the  memorandum  was  not  pre- 
sented within  the  time  specified  by  the 
Limitation  Act  and  that  it  was  necessary 
for  the  applicant  to  obtain  extension,  of 
time. 

The   ground  upon    which  he  based  his 
application  for  extension    of  time  was  that 
"  before  the  llth  of  June    1924  one  Suren- 
dra  Narain  Bhaduri,  who  is  a  cleik  in  the 
service  of   the    applicant's    attorney,  was 
informed  by  one  Benoy  Krishna  Mukeiji — 
the  Court  clerk  of  Messrs.    Fox  and  Mandal, 
who  were  the  attorneys  for  the  plaintiff — 
that  the  requisition  had  been  duly  given 
for  drawing  up   the  said    decree    by  the 
plaintiffs  attorneys    and    that  relying    on 
the  said  information  and  "as  the  said  re- 
quisition for  the  office  copy  was  accepted  by 
the  office,  he  (Surendra  Narain  Bhaduri) 
assumed  that  the  requisition  for  the  draw- 
ing up  of  the  said  decree  had  been  duly 
given  by  the  said  plaintiff's  attorneys  and 
that  he  did  not  make  any  further  enquiry 
as  to  whether  such  requisition  had  been 
actually  given/1 

An  affidavit  has  been  filed  on  behalf  of 
the  plaintiff,  sworn  by  Benoy  Krishna 
Mukerji,  the  clerk  in  the  employ  of  Messrs. 
Fox  and  Mandal,  who  is  referred  to  in 
he  petition  verified  by  Surendra  Narain 
Bhaduri ;  and,  in  para.  5,  it  is  stated  as 
follows : — 

"  With  reference  to  the  allegations  made 
in  para.  5  of  the  affidavit  1  emphatically 
deny  that  before  the  llth  June  1924  or  on 
any  other  day  I  informed  the  said  Surendra 


Narain  Bhaduri  or  any  other  person  of  the 
office  of  Mr,  J.  K.  Dutt  that  requisition 
had  been  duly  given  for  drawing  up  of 
the  said  decree  by  us.  I  say  that  the 
statement  is  an  absolutely  unfounded  one 
and  hns  been  made  to  cover  up  laches.  1 
further  say  that  the  said  Surendra  Narain 
Bhaduri  did  not  even  know  my  name  and 
on  or  about  the  18th  of  November,  1924,  he 
asked  me  what  my  name  was.  This  I  now 
think  was  then  done  with  a  view  to  put 
in  my  name  in  the  affidavit  as  his  alleged 
informant." 

There  is,  therefore,  a  direct  contact  ot 
testimony  as  to  whether  the  information, 
upon  which  the  applicant  relies,  was  given 
by  Benoy  Krishna  Mukerji  to  Burendra 
Narain  Bhaduri. 

In  my  judgment  it  is  impossible  for  us 
upon  the  materials  which  are  now  before 
this  Court  to  hold  that  that  information 
was  in  fact  given.  The  result  is  that  this 
application  must  be  decided  upon  the  basis 
that  the  allegation  as  to  the  information 
referred  to  in  Surendra  Narain  Bhaduri  s 
petition  is  excluded  from  consideration. 

The  question  then  arises  whether  there 
are  any  other  circumstances  connected  with 
this  application  which  would  justify  this 
Court  in  holding  that  the  applicant  has 
satisfied  the  Court  that  he  had  sufficient 
cause  for  not  preferring  the  appeal  within 
the  prescribed  period  as  provided  by  s.  5  of 
the  Limitation  Act. 

Now  it  is  well-known  that  by  reason  of 
r  27, 'Chap.  XVI  of  the  High  Court 
Rules,  if  thepaity  in  whose  favour  a  decree 
has  been  made  does  not  apply  to  have  the 
decree  drawn  up  within  four  days  from 
the  date  of  the  decree,  any  party  to  the 
mat  may  apply  to  have  the  decree  dramm 
up  within  one  month  thereafter. 

In  my  judgment,  the  applicant  or  hi* 
attorney  ought  to  have  taken  proper  step* 
to  ascertain  whether  an  application  had 
been  made  by  the  plaintiff  to  have  the 
decree  drawn  up. 

In  this  connection  I  desire  to  draw  atten- 
tion to  the  decision  of  this  Court  in  Kamr- 
uddin  Hydcr  v.  Af .  N.  Mitter  (1)  which  was 
given  on  the  13th  August  1924. 

In  that  case  reference  was  made  to  the 
judgment  of  the  Judicial  Committee 
of  the  Privy  Council  in  Pramatha  Nath 

69  lud,  Cas,  277;  52  0.  342;  (1925)  A.  J,  R  (0,) 


nS? 


[92 1.  0, 1926] 


GOB1ND  LAL  DOTT  V.  OFFICIAL  ASSIGN8B, 


565 


Roy  v.  Lee  (2),  in  which  the  following 
passage  occurs: — "In  their  Lordships* 
opinion,  no  period  can  be  regarded  as 
requisite  under  the  Act,  which  need  not 
have  elapsed  if  the  appellant  had  taken 
reasonable  and  proper  steps  to  obtain  a  copy 
of  the  decree  or  order." 

In  this  case,  as  I  haye  already  said,  it 
is  admitted  that  neither  the  applicant  nor 
his  attorneys  made  any  application  to  the 
Registrar's  office  to  ascertain  whether  the 
plaintiff  had  in  fact  sent  in  a  requisition 
to  have  the  decree  drawn  up. 

The  applicant's  attorney  made  a  requisi- 
tion to  the  Court's  office  on  the  llth  June 
(five  days  after  the  decree  was  made)  for 
the  purpose  of  obtaining  an  office  copy  of 
the  decree.  Neither  the  attorney  nor  his 
olerk  made  any  enquiry  at  the  Court's 
office  as  to  whether  a  requisition  for  draw- 
ing the  decree  had  been  made  by  the 
plaintiff.  If  such  an  enquiry  had  been 
made,  it  would  have  been  ascertained  that 
no  requisition  for  drawing  the  decree  had 
been  made  by  the  plaintiff,  such  informa- 
tion having  been  obtained,  if  the  appli- 
cant intended  to  appeal,  it  would  have 
been  his  duty  to  make  a  requisition  for  the 
decree  to  be  drawn  up.  In  my  judgment, 
time  elapsed,  which  need  not  have  elapsed 
if  the  applicant  had  taken  reasonable  and 
proper  steps  to  get  the  order  diawn  up  and 
to  obtain  an  office  copy 

If  we  were  to  hold  that  it  was  sufficient 
for  the  present  applicant,  desuing  to  ap- 
peal, to  put  in  a  requisition  for  an  office 
copy  without  taking  any  steps  whatever  to 
have  the  decree  drawn  up  in  the  event  of 
the  plaintiff  not  so  doing,  it  seems  to  me 
that  the  provisions  of  the  Limitation  Act 
might  be  avoided. 

I  am,  therefore,  not  satisfied  that  the 
applicant  had  sufficient  cause  for  not  pre- 
feifring  the  appeal  within  the  prescribed 
time. 

For  these  reasons  the  application  must 
be  dismissed  with  costs. 

Buckland,  J.— I  agree,  and  as  this 
matter  is  being  decided  with  reference  to 
a  point  upon  which,  so  far  as  I  am  at  present 
aware,  there  has  hitherto  been  no  decision 
I  Desire  to  add  a  few  words  as  to  the 
principle  involved. 

(2)  &  Tad  Gas  900,  31  M  L.  T  193,  (1922)  AIR 
(P.  0 )  352,  4  U.  P.  L.  H  (P  C  )  103,  43  M  L  J.  765, 
21  A.  L  J  118,  37  C  L  J  86,  18  L  W  53,  '1923)  M. 
W,  N  523,  49  I  A  307,  49  0  999,  27  C.  W.  N.  156 
(P.O.). 


Before  an  appeal  can  be  filed,  the  decree 
or  order  must  be  drawn  up  and  the  would- 
be  applicant  must  obtain  a  copy  of  the 
decree  or  order,  which  it  is  his  duty  to  file 
with  the  memorandum  of  appeal.  As  stated, 
it  is  open  to  the  party  in  whose  favour  the 
decree  or  order  has  been  made^  to  furnish 
a  requisition  in  writing  for  the  order  or 
decree  to  be  drawn  up.  If  he  does  not  do 
so  within  four  days  from  the  date  of  the 
decree  or  order  the  other  party  may  do  so 
within  one  month  thereafter.  Consequently 
under  the  rules  of  this  Court,  it  is  open  to 
a  would-be  appellant  to  have  the  decree 
or  order  drawn  up. 

It  has  been  decided  in  the  case  of 
Pramatha  Nath  Roy  v.  Lee  (2)  by  the  Judi- 
cial Committee  of  the  Privy  Council  affirm- 
ing the  judgment  of  the  learned  Chief 
Justice  and  Mr  Justice  Chitty  that  "  time 
which  need  not  have  elapsed  if  the  appel- 
lant had  taken  reasonable  and  proper  steps 
to  obtain  a  copy  of  the  decree  or  order 
could  not  be  regarded  as  *  requisite '  time 
within  sub-s.  (2)  of  s.  12  of  the  Indian 
Limitation  Act  (IX  of  1908}."  Consequent- 
ly it  is  now  not  open  to  question  that  a 
party  who  desires  to  prefer  an  appeal 
against  a  decree  or  order  must  apply  fora 
copy  of  such  decree  or  order  within  twenty 
days — the  period  of  limitation  for  preferring 
an  appeal.  The  point  is  whether  or  not,  even 
though  he  may  have  applied  for  such  copy 
within  time,  he  may  be  excused  if  he  has 
not  within  the  prescribed  period  filed  a 
requisition  for  the  decree  or  order  to  be 
drawn  up.  In  my  opinion,  the  principle 
applies  equally  to  the  filing  of  the  requisi- 
tion to  draw  up  the  decree  or  order. 

The  case  to  which  I  have  referred  relates 
to  the  copy  of  the  order  but  it  was  held 
there  by  the  learned  Chief  Justice  that  if 
the  defendant  desired  to  appeal  from  the 
order  he  should  have  applied  to  have  the 
order  drawn  up  and  for  a  copy  of  the 
order  in  accordance  with  the  rules  of  this 
Court. 

The  principle,  it  appears  to  me,  is  incon- 
testably  equally  applicable  to  the  prepara- 
tion of  the  decree  or  order.  There  cannot 
be  one  principle  applicable  to  the  decree 
or  order  and  another  applicable  to  the  copy 
for  which  the  would-be  appellant  has  to 
apply  It  would  be  illogical  and  inconsistent 
to  insist  on  his  applying  within  twenty  days 
for  a  copy  of  a  document  which  it  is  within 
his  power  to  have  prepared  and  then  to 


5CO 


SUBRAMANU  IYER  v.  SHUNMUGAM  CHETTIAR, 


[92  i.  P. 


excuse  him  on  the  ground  that  he  is  not 
equally  bound  within  that  time  to  take  steps 
for  the  preparation  of  the  original.    . 
N,  H*  Application  dismissed. 

MADRAS  HIGH  COURT. 

SBCOND  CIVIL  APPEAL  No.  1163  OP  1922. 

'      April  6, 1925. 

Present:— Mr.  Justice  Phillips. 

K.  V.  8UBRAMANIA  IYER  AND  orHBRS- 

PLAINTIFF'B  LEGAL  RBPRBSANTATIVES — 

APPELLANT* 

versus 

SHUNMUGAM  CHETTIAR  AND  OTHERS- 
DEFENDANTS  Nos  2  TO  7  AND  LEGAL 
REPRESENTATIVE  OF  THE  IST  DEFENDANT- 
RESPONDENTS. 

Limitation  Act  (IX  of  1008  as  amended  by  Act 
XXVI  of  1920),  Sch  I,  Art  177 -Limitation,  period 
of— "Ditto"  meaning  of—Evidence  Act  (I  of  1872), 
9  78— Proof  of  Act  -Publication  in  Gazette  of  India 
— Publication  by  Superintendent  of  Government  Print- 
ing— Preference. 

The  period  of  limitation  under  Art  177  of  Limita- 
tion. Act  IX  of  1908  remained  at  six  months  even 
after  the  amending  Act  XXVI  of  1920.  [p  567,  col  2  ] 

The  word  "Ditto11  opposite  to  Art  177  in  the 
Limitation  Act  of  1908  was  equivalent  to  the  words 
"six  months"  and  when  the  word  "Ditto"  was  allowed 
to  stand  without  alteration  after  the  amendment  of 
1920,  the  meaning  of  the  word  could  not  be  held  to 
have  been  changed,  [p  567,  col,  1  ] 

Gobmd  Das  v.  Rup  Kishore,  77  Ind.  Gas  409,  4  L. 
367;  6  L.  L.  J.  25,  {1924;  A.  I  K.  (L  )  65,  followed. 

Alice  Georgina  Skinner  v.  Mukarram  Ah  Khan,  92 
Ind.  Gas.  330,  (1925)  A.  I.  R  (A )  77,  L  K.  5  A  607 
Civ.  and  Husenuddin  Nurddin  v.  Dulakshidas  Kesav- 
lalt  77  Ind.  Cas.  474,  (1923)  A  I.  R,  (B  )  299,  not  fol- 
lowed. 

Under  B.  78  of  the  Evidence  Act  the  publication  in 
the  Gazette  of  India  ia  the  proper  method  of  proving 
ail  Act  and  if  there  is  a  conflict  between  such  a 
publication  and  a  publication  by  the  Superintendent, 
Government  Printing,  Calcutta,  preference  must  be 
given  to  that  in  the  Gazette  of  India,  [p.  566,  col  2, 
p.  567,  col  1  ] 

Second  appeal  against  a  decree  of  the 
District  Court,  West  Tanjore,  in  A.  8. 
No.  238  of  1920,  preferred  against  that  of 
the  Oouit  of  the  Temporary  Subordinate 
Judge,  Tanjore,  in  0.  8.  No.  52  of  1919. 

Messrs.  T.  M.  Krishnaswami-Iyer  and  A. 
V.  Viswanatha  Sastry,  for  the  Appellant. 

Messrs.  V.  C.  Sexhachariar,  K.  Ba<shyam 
lyengar,  M.  S.  Venkatarama  Iyer  and  P.  S. 
Narayanaswami  Iyer,  for  the  Respondents. 

JUDGMENT.— In  this  case  the  1st 
respondent  in  A.  8.  No.  238  of  1920  on 
the  file  of  the  District  Court  of  Tanjore 
died  during  the  pendency  of  the  proceed- 
ings. An  application  was  put  ia  within 
three  months  for  bringing  on  record  his 
legal  representative,  but  that  application 
appeara  to  have  been  dismissed  cm  the 


ground  that  batta  was  not  paid,  and  it  now 
appears  that  the  non-payment  was  entirely 
due  to  the  negligence  of  the  appellant's 
Vakil's  clerk.  A  subsequent  application 
was  put  in  three  and  a  half  months  after 
the  1st  respondent  died,  asking  for  the 
restoration  of  the  first  petition  and  also  for 
bringing  on  record  a  certain  lady  as  ^the 
1st  respondent's  legal  representative.  That 
petition  was  dismissed  on  the  assumption 
that  in  so  far  as  it  prayed  for  the  addition 
of  the  legal  representative  it  was  out  of 
time  and  also  on  the  ground  that  there  was 
no  sufficient  reason  for  restoring  the  origi- 
nal petition. 

The  main  question  that  is  now  raised  in 
second  appeal  is  whether  the  Judge  was 
right  in  considering  that  the  second  appli- 
cation was  out  of  time,  namely,  whether 
the  period  prescribed  for  such  an  applica- 
tion is  six  months,  or  only  90  days.    The 
application    is  one  under  Art.  177  of  the 
Schedule  to  the  Limitation  Act,  and  in  the 
Limitation  Act  of  1908,  the  period  prescrib- 
ed is  six  months.    In  192U  an    amending 
Act  was  passed,  and  the  question  is  whether 
that  amending  Act  reduced  the  period  of 
six  months  to  90  days,  or  left  it  at  six 
months.    The  Allahabad  and  Lahore  High 
Courts  are  both  of  opinion,  that  the  peiiod 
remains  at  six  months  notwithstanding  this 
amending  Act,  whereas  the  Calcutta  and 
Bombay  High  Courts  are  of  the  contrary 
opinion.    In  the  case  reported  in  Gobind 
Das  v  Rup  Kishore  (1)   the  matter  has  been 
very  carefully  discussed  and  it  was  found 
that  if  the  words  of   the  amending  Act, 
XX  VI  of  1920,  were  applied  to  the  Act  of 
1908  as  originally  published  in  the  Gazette 
of  India,  the  period  of  limitation   under 
Art.  i77  would  remain  at  six  months.    It 
appears  that  the  other  copies  of  the  Act 
printed  by  the  Superintendent  of  Govern- 
ment Printing,  Calcutta,  are  paged  differ- 
ently, and   in  them    against  Art.   177    the 
word  "  Ditto**  appears.    The  result  of  the 
amendment  of  Art.  176  which  reduces  the 
period  of  limitation  to  90  days  would  have 
the  effect  of  making  Art.  177  read  as  having 
reduced  the  period  similarly,  namely,  to  90 
days.    The  amending  Act,    therefore,  has 
a  different  effect  if  applied  to  the  Original 
Gazette  of  India  publication  or  if  applied 
to  subsequent  publications  of  Act  .IX  of 
1908.  Under  s.  78  of  the  Evidence  Act,  there 
can  be  no  doubt  that  the  publication  in  the 

(1)  77  Ind.  Cas.  409;  4  I*  367;  6  I*  L.  J.  25;  (19M) 
A.  I,  K.  (L.)  65, 


£021.  0.  iDJo'i  RAMSAY 

Gazette  of  India  is  the  proper  method  of 
proving  the  Act  and  if  there  is  a  conflict 
between  the  two  publications,  preference 
will  certainly  be  given  to  that  in  the 
Gazette  of  India.  The  later  publications 
do  not  purport  to  be  published  by  the  author- 
ity of  the  Government  of  India,  but  are 
printed  by  the  Superintendent,  Government 
Printing,  India 

There  is  also  another  argument  used  by 
the  Allahabad  High  Court  in  Alice  Gear- 
gina  Skinner  v.  Mukarram  Ah  Khan  (2), 
and  that  is  that  Act  XXVI  of  1920  makes 
no  specific  reference  to  Art.  177  and  con- 
sequently it  can  only  be  deemed  to  amend 
4hat  Article  by  implication,  namely,  by 
altering  the  period  under  Art.  176  and  re- 
taining the  word  "Ditto  "  against  Art.  177. 
This  view  has  not  been  adopted  both  by 
Calcutta  and  Bombay  High  Courts  on  the 
ground  that  it  was  "the  intention  of  the 
Legislature  to  amend  Art.  177.  Nothing 
appears  to  that  effect  in  the  preamble  of  the 
amending  Act  and  there  is  no  reference  to 
Art.  177  in  the  body  of  the  Act.  The  word 
11  Ditto"  opposite  to  Art.  177  in  the  Act  of 
1938  was  equivalent  to  the  words  "six 
months'1  and  when  that  word  "  Ditto"  is 
allowed  to  stand  without  alteration  after 
the  amendment  of  1920,  it  is  difficult  to 
understand  why  its  meaning  should  have 
been  changed.  Consequently,  even  if  the 
word  "  Ditto11  were  to  remain  as  in  the 
subsequently  published  copies  of  the  Act, 
its  original  meaning  would  not  be  changed 
unless  the  Legislature  had  declared  its 
intention  to  alter  it.  On  all  these  grounds 
I  respectfully  agree  with  the  decisions  of 
the  Lahore  and  Allahabad  High  Courts,  The 
Bombay  case  in  Husenuddin  Nurddin  v. 
Dulakshidas  Ke$havlal  (3),  contains  only  a 
very  brief  judgment  based  on  the  fact  that 
the  amending  Act  is  applicable  to  the  pub- 
lished Acts  and  not  to  the  Act  as  printed 
in  the  Gazette  of  India  and  does  not  meet 
the  arguments  mentioned  above.  The  Cal- 
cutta decision  is  that  of  a  Single  Judge 
who  by  the  reason  of  the  view,  he  takes 
is  so  constrained  to  reject  altogether  the  Act 
as  published  originally  in  the  Gazette  of 
India  as  being  "not  an  accurate  and  true 
version  of  the  Act  which  the  Legislature 
enacted.1'  When  the  Evidence  Act  dis- 
tinctly lays  down  that  this  is  the  method 
of  proving  an  Act  of  the  Legislature,  I 

f9i  92  Tnd.  Gas.  330;  (1925)  A.  I.  R.  (A )  77;  L.  R.  5 
A.  607  Oiv. 
(3)  77  lad  Cas,  474;  (1923)  A,  I,  R,  (B,)  299, 


v.  OIKDHARI  LAL, 


567 


r3gret  that  I  cannot  agree,  with  the  view  of 
the  learned  Judge  that  an  Act  so  proved 
is  not  an  accurate  and  true  version.  lie 
goes  further  to  hold  that  the  Act  can  be 
proved  by  a  means  which  is  not  contem- 
plated in  the  Evidence  Act  and  that  such 
a  proof  is  preferable  to  the  proof  laid  down 
by  the  Statute.  With  all  respect,  I  cannot 
agree  in  this  view.  I,  therefore,  follow  the 
decision  of  th«  Lahore  and  Allahabad  High 
Courts,  that  the  period  of  limitation  under 
Art,  177  remained  at  six  months  even  after 
the  amending  Act,  Act  XXVI  of  1920.  That 
being  so,  the  learned  District  Judge  was 
wrong  in  treating  the  second  petition 
of  the  appellant  as  being  out  of  time.  The 
prayer  for  the  restoration  of  the  first  peti- 
tion was  unnecessary  The  main  prayer 
was  to  bring  on  record  a  legal  representa- 
tive and  the  application  being  within  time, 
the  prayer  ought  to  have  been  granted. 

I  must,  therefore,  set  aside  the  decree  of 
the  lower  Appellate  Court  and  remand  the 
suit  to  that  Court  for  the  hearing  of  the 
appeal  after  bringing  on  record  the  1st  re- 
spondent's legal  representative.  Costs  will 
abide  the  result. 

Court-fee  on  the  second  appeal  will  be 
refunded. 

v.  NT.  v.  Suit  remanded, 

N,  H. 


ALLAHABAD  HIGH  COURT, 

CIVIL  REVISION  No.  105  OP  1925, 

November  26,  1925. 
Present* — Mr  Justice  Mukerji. 
RAM  8 ARAN  DAS— APPLICANT 

versus 

GIRDHARI  IAL  AND  OTHERS— 
OPPOSITE  PARTIES 

Civil  Procedure.  Code  (Act  V  of  1908),  s  115,  0.  XXI, 
r  90— Limitation  Act  (IX  of- 1908),  Sch  I,  Art.  166— 
Execution  of  decree— Sale,  application  to  set  aside— 
Particulars,  additional,  supplied  after  expiry  of  limi- 
tation—Appellate Court,  refusal  of,  to  consider  particu- 
lars— Revision 

Within  thirty  days  from  the  date  of  an  auction-sale, 
the  judgment-debtor  applied  to  set  aside  the  sale  on  the 
ground  of  material  irregularity  in  the  publication  and 
conduct  of  the  sale  which  had  resulted  in  the  property 
baing  sold  for  a  very  small  sum  After  the  expiry  of 
thirty  days  the  judgment-debtor  made  another  appli- 
cation pointing  out  that  two  heavy  encumbrances  had 
been  shown  m  the  sale  proclamation  whereas  no  such 
encumbrance  existed  on  the  date  of  the  proclamation. 
The  First  Ovirt  found  thit  this  \va^  afoot  ani  on  that 
ground  set  aside  ths  sale  On  appeal,  tha  lower 
Court  holding  that  the  First  Court  waa  uo( 


568 


BAM  8ARAN  DAS  V.  OIBDHAKI  LAL. 


[82 1.  0. 1926j 


authorised  to  look  into  the  matters  cmtained  in  the 
later  application  inasmuch  as  that  application  had 
been  made  nu ic  thin  thirty  days  after  the  sale,  set 
aside  tha  ordor  mils  by  tha,  First  Court 

Held,  (1)  that  tin  later  application  merely  supplied 
additional  particulars  of  the  material  irregularity 
alleged  in  the  firht  application  and  that  the  lower 
Appellate  Court,  therefore,  had  jurisdiction  to  consider 
the  allegations  made  in  tha  later  application;  [p  569, 
col.  ].] 

(2)  that  the  refusal  of  the  lower  Appellate  Court  to 
consider  the  later  application  amounted  to  material 
irregularity  in  the  exercise  of  jurisdiction  and  that  the 
order  of  the  lower  Appellate  Court  must,  therefore,  be 
set  aside  in  revision  [ibid  ] 

Civil  revision  from  an  order  of  the  Third 
Additional  Subordinate  Judge,  Aligarh, 
dated  the  31st  of  January  1925. 

Mr.  Hem  Chandra  Mukerji,  for  the  Appli- 
cant. 

Mr.  P.  L  Banerji,  for  the  Opposite  Par- 
ties. 

JUDGMENT,-— This  is  an  application 
to  revise  an  order  of  a  Subordinate  Judge 
of  Aligarh  who  on  appeal  set  aside  an  order 
of  the  Munsif  setting  aside  a  sale  held  in 
execution  of  a  decree. 

It  appears  that  a  certain  property  of  the 
judgment-debtor  was  advertised  for  sale 
and  a  sale  actually  took  place  on  the  17th 
of  September  1924.  The  judgment-debtor, 
who  is  the  petitioner  before  the  Court,  on 
14th  October  l»24took  exception  to  the  sale 
on  the  ground  that  there  was  material 
irregularity  in  the  publishing  and  conduct- 
ing of  the  sale  and  that  the  price  fetched 
was  consequently  too  small.  On  the  25th 
of  October  1924  the  petitioner  made  an  ap- 
plication pointing  out  that  two  encum- 
brances to  the  total  amount  of  Rs.  5,807, 
had  been  shown  in  the  sale  proclam- 
ation, whereas  no  such  encumbrances 
actually  existed  at  the  date  of  the  advertise- 
ment. The  Munsif  found  that  this  was  a 
fact  and  on  that  ground  he  set  aside  the 
sale. 

On  appeal  the  learned  Subordinate  Judge 
held  that  the  learned  Munsif  was  not  au- 
thorised to  look  into  the  matters  contained 
in  the  application  of  the  25th  of  October 
1924  inasmuch  as  that  application  had 
been  made  more  than  thirty  days  after  the 
sale.  He  relied  on  the  ease  of  Harbans  Lai  v. 
Kundan  Lai  (1). 

There  can  be  no  doubt  that  the  learned 
Subordinate  Judge  has  misread  the  ruling. 
All  that  was  laid  down  there  was  that  when 
an  application  is  made  for  setting  aside  the 
sale  on  the  ground  of  material  irregularity 

fi  (1)  21  A.  140,  A.  W.  N.  (1898)  212;  9  Ind.  Dec.  (N,  s ) 
799. 


in  publishing  and  conducting  a  sale  and 
consequent  substantial  loss  it  is  not  open 
to  the  judgment-debtor  to  rely  on  some 
other  ground  for  the  same  purpose.  In  the 
case  quoted  the  application  of  the  judg- 
ment-debtor to  set  aside  the  sale  failed  on 
the  ground  of  material  irregularity.  But 
the  learned  Judges  in  the  Courts  below  did 
set  aside  the  sale  on  the  ground  that  there 
had  not  been  effected  an  attachment  prer 
vious  to  the  sale.  This  Court  pointed  out 
that  this  was  a  new  point  entirely  beyond 
the  scope  of  s.  311  of  the  old  C.  P.  C. 

In  this  case  the  application  was  based  on 
the  ground  of  material  irregularity  and  it 
was  only  by  way  of  additional  particulars 
that  it  was  pointed  out  that  two  heavy 
encumbrances  which  did  not  exist  had  been 
notified. 

On  the  merits,  therefore,  the  applicant  has 
a  very  good  case.  If  the  applicant  suc- 
ceeds the  case  will  have  to  go  back  to  the 
Court  of  first  instance  because  the  lower 
Appellate  Court  has  remarked  that  the 
auction-purchaser  had  no  opportunity  of 
meeting  the  allegation  that  the  encum- 
brances notified  did  not  in  fact  exist. 

Mr.  Peary  Lai  Banerjion  behalf  of  the 
respondent  auction-purchaser  has  taken  up 
the  plea  that  no  revision  lay  and  he  relies 
on  the  Full  Bench  case  of  Yad  Ram  v. 
Sunder  Singh  (2).  That  case  is  clearly  dis- 
tinguishable from  the  case  before  me.  In 
that  case  the  question  arose  whether  u  cer- 
tain party  had  a  right  to  apply  to  set  aside 
the  sale.  The  Judge  in  the  Court  below 
followed  a  ruling  of  this  Court  and  held 
that  the  applicant  could  not  make  an  appli- 
cation for  setting  aside  a  sale.  The  ques- 
tion was  whether  in  so  acting  the  Court 
below  acted  with  material  irregularity  in 
the  exercise  of  its  jurisdiction.  It  was  held 
that  it  did  not. 

In  this  case,  the  learned  Judge  of  the 
Appellate  Court  bad  to  consider  whether 
the  allegation  made  on  the  25th  of  October 
1924  could  or  could  not  be  taken  into  con- 
sideration in  deciding  the  application 
made  on  14th  October  19^4.  The  learned 
Judge  while  purporting  to  follow  a  ruling 
of  this  Court  really  misread  that  ruling 'and 
refused  to  consider  the  application  of  the 
25th  of  October  1924.  If  the  learned  Subordi- 
nate Judge  had  considered  the  application 
of  the  2Uh  of  October  li)24  and  had  come  to 
the  conclusion  rightly  or  wrongly  that  he 

(2)  74  Jnd  Cas  778;  21  A.  L  J,  313;  (1923)  A,  f  T> 
(A.)  392, 45  A.  425  (P.  B,),' 


BULLI  MAL  V.  JHABBA, 


[92  I.  0. 1926] 

should  not  consider  the  application  because 
the  judgment-debtor  had  no  right  to  apply 
for  an  amendment  of  MB  previous  applica- 
tion I  should  have  held  that  no  revision 
lay.  But  the  learned  Subordinate  Judge 
did  not  at  all  consider  the  application  of 
the  25th  of  October  1924.  He  had  the 
jurisdiction  to  consider  the  matter  and  he 
refused  to  consider  it.  In  doing  so  he 
acted  with  material  irregularity.  I  hold 
that  a  revision  does  lie. 

The  result  is  that  I  allow  the  application, 
set  aside  the  order  of  the  Court  below  and 
also  the  order  of  the  Court  of  first  instance 
and  send  back  the  case  to  the  Court  of 
first  instance.  The  application  of  the  ap- 
plicant to  set  aside  the  sale  will  be  con- 
sidered after  the  auction-purchaser,  Girdhari 
Lai,  has  been  given  an  opportunity  to 
meet  the  allegations  made  in  the  applica- 
tions dated  the  14th  of  October  1924  and  the 
25th  of  October  1924.  The  learned  Munsif 
would  treat  the  application  of  the  25th  of 
October  1924  as  an  application  to  amend 
the  previous  application  of  the  14th  o£ 
October  1924  and  will  decide  whether  or 
not  he  would  allow  the  earlier  applica- 
tion to  be  amended  by  the  addition  of  the 
allegations  contained  in  the  petition  of  the 
25th  of  October  1924.  Costs  in  this  Court 
and  in  the  lower  Appellate  Court  will 
abide  the  result. 

z.  K.  Application  allowed. 


LAHORE   HIGH  COURT. 

CIVIL  REVISION  No.  93  OF  1925. 

May  15,  1925 

Present:— Mr.  Justice  Coldstream. 
BULLI  MAL— PLAINTIFF— PETITIONER 

versus 

JHABBA  AND  OTHERS — DEFENDANTS— 
RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  0  I,  r  10— 
Suit  by  one  partner  to  recover  debt  due  to  firm — 
Partners,  others,  whether  necessary  parties— Refusal 
of  other  partners  to  join — Procedure 

In  a  suit  by  one  partner  in  a  firm  to  recover  a 
debt  due  to  the  firm,  the  other  partners  are  necessary 
parties. 

Where  in  such  a  salt  the  other  partners  refuse  to 
join  as  plaintiffs,  the  correct  prooedme  ia  to  join 
them  as  defendants. 

Petition  for  revision  of  an  order  of  the 
Senior  Sub-Judge,  Ambala,  dated  the  10th 
November  1924,  affirming  that  of  the  Sub- 
Judge,  Fourth  Class,  Jagadhari,  dated  the 
24th  June  1»24, 


Mr.  Shamair  Chand,  for  the  Petitioner. 

Mr.  AnantRam,  for  the  Respondents 

JUDGMENT.— One  Bulli  Mai  brought 
a  suit  against  Jhabba  and  Niranjan  Singh 
to  recover  Rs.  51-8-0,  alleged  to  have  been 
borrowed  by  the  defendants  jointly,  with 
interest  thereon  amounting  to  Rs.  77-4-0  and 
the  coats  of  a  notice  Re.  0-i)-0.  Jhabba  ad- 
mitted having  borrowed  Rs.  50  from  the 
Firmof  Bulli Mal-Biru Mai,  but  pleaded  that 
the  debt  had  been  discharged  by  payment  to 
Biru  Mai.  Niranjan  Singh  pleaded  that  he 
borrowed  only  Rs.  25  along  with  Jhabba  and 
that  he  had  re-paid  this  sum  to  Jhabba. 

On  the  pleadings  the  Subordinate  Judge 
framed  a  preliminary  issue*  ^Is  there  a  firm 
known  as  Biru  Mai- Bulli  Mai?"  The  issue 
was  decided  in  the  affirmative  and  the  Sub- 
ordinate Judge  passed  an  order  to  the  effect 
that  "the  plaintiffs  should  make  the  neces- 
sary amendment  of  their  (sic)  plaint  in  the 
name  of  the  Firm  of  Bulli  Mal-Biru  Mai." 
The  plaint  was  not  amended,  but  Biru  Mai 
stated  in  Court  that  he  was  not  concerned 
in  the  transaction  The  Court  proceeded 
with  the  trial  and  found  that  the  debt  fhad 
been  discharged  by  payment  to  Biru  Mai. 
It  dismissed  the  suit  on  the  ground  that 
the  suit  was  bad  for  misjomder  as  Bulli 
Mai  could  not  sue  without  joining  his  bro- 
ther Biru  Mai,  and  that  the  debt  had  been 
discharged  by  payment  to  Biru  Mai. 

The  Senior  Subordinate  Judge  dismissed 
the  appeal  holding  that  Bulli  Mai  could 
not  sue  alone,  but  without  going  into 
the  question  whether  the  debt  had  actually 
been  discharged  or  not.  The  plaintiff  has 
petitioned  this  Court  for  revision  and  it  has 
been  argued  before  me  that  the  suit  could 
not  properly  be  dismissed  merely  on  the 
ground  that  Biru  Mai  had  not  been  joined 
as  a  plaintiff,  for  Biru  Mai  had  signified 
that  he  was  not  prepared  to  sue. 

I  think  that  the  procedure  of  the  Trial 
Court  was  wrong  When  Biru  Mai  refused 
to  be  joined  as  a  plaintiff  the  correct  proce- 
dure would  have  been  to  join  him  as  a  de- 
fendant, for  it  is  clear  that,  on  the  finding 
that  he  was  a  partner  with  his  brother  in 
business,  he  was  a  necessary  party  to  the 
proceedings.  There  was  no  refusal  on  the 
part  of  the  plaintiff  to  join  him  either  as 
plaintiff  or  as  defendant. 

I  accept  the  petition,  set  aside  the  orders 
of  the  lower  Courts  and  return  the  case  to 
the  Trial  Court  with  a  direction  that  Biru 
Mai  should  be  asked  whether  he  is  prepare- 
ed  to  join  as  a  plaintiff,  If  he  wishes  to  be 


570 


TULSIDASS  GOV1NJBB  V.  MADHAVADASS  LiLAJ«B.          [92  I.  0.  1926] 


joined  as  a  plaintiff  he  should  be  so  joined, 
and  if  he  refuses,  he  should  be  joined    as  a 
4efendant,  and  tho- case  decided  according 
to  l$w.    Costs  will  follow  the  event, 
g.  K,  Petition  accepted, 


MADRAS  HIGH  COURT. 

ORDINARY  ORIGINAL  CIVIL  JURISDICTION, 
ORIQINAL  PETITION  No.  170  OF  1919. 

July  22,  1925. 

Present;— Mr.  Justice  Srinivasa  Aiyangar, 
TULA8IDASS.GOVINDJEE— PLAINTIFF 

versus 
MADHAVADASS  LALAJEE  AND  OTHERS 

— RESPONDENTS. 

lure  LIIADHARSAIT— PETITIONER. 

Guardians  and  Wards  Act  (VIII  of  1890),  s  !>l- 
Minor,  death  of—Application  by  person  claiming  as 
heir  for  delivery  of  property,  maintainability  of— 
Dispute  as  to  succession. 

Where  a  minor  m  respect  of  whose  property  a 
guardian,  had  been  appointed  under  the  Guardians  and 
Wards  Act  dies  aud  there  is  a  dispute  or  even  the 
likelihood  of  a  dispute  relating  to  the  succession  to 
his  estate  the  Court  has  no  powers  under  s  41  of  the 
Guardians  and  Wards  Act  to  determine  the  succession 
and  thereupon  make  any  orders  for  granting  delivery 
of  possession  of  the  minor's  property  or  for  rendering 
of  accounts  by  the  guardian  [p.  570,  ool  2  J 

A  Court  acting  under  the  Guardians  and  Wards 
Act  is  functus  officio  when  the  minor  dies.  Any 
disputes  or  rights  with  regard  to  the  property  of  the 
minor  should  thereafter  be  litigated  in  the  ordinary 
Tribunals,  though  in  simple  cases  where  no  contest  can 
arisa  tha  Court  may  have  the  power  under  s  41  of 
the  Act  to  make  simple  orders  for  delivery  of 
property,  (p.  571,  col.  1-1 

Mr.  K.  S.  Jayarama  Iyer,    for  the  Peti- 

U<JUDGMENT.— I  am  clearly  of  the 
opinion  that  this  application  la  incompe- 
tent. The  minor  for  whose  person  and  pro- 
perty the  guardian  had  been  appointed  in 
this  matter  is  now' admitted  to  be  dead  and 
the  petitioner  now  before  me  claims  under 
an  assignment  from  the  son  of  ttje  deceased 
second  respondent  and  I  am  told  that  the 
second  respondent's  son  had  a  right  so  to 
assign  a  share  in  the  property,  because  it  is 
alleged  that  on  the  death  of  the  minor,  the 
son  of  the  second  respondent  became  one  of 
the  reversionary  heirs  to  the  estate.  When 
the  application  came  on  for  hearing  before 
me  last  week,  I  intimated  to  the  learned 
Vakil  for  the  petitioner,  Mr.  Jayarama  Iyer, 
that  I  had  my  doubts  whether  such  an 
application  would  be  maintained  undeir  the 
Guardians  and  Wards  Act  after  the  death 
of  the  minor,  I  have  aow  bsen  referred  to 


the  ca3e  of  Nataraja  Pillai  v.  Subbaraya 
PMai  (1).  la  that  case,  Oldfield  and  Sada- 
siva  Iyer,  J  J.,  held  that  the  words  "for  any 
cause"  in  cL  3  of  s.  41  of  the  Guardians  and 
Wards  Act  were  wide  enough  to  cover  the 
case  of  the  death  of  a  minor,  though  such  a 
contingency  is  not  contemplated  or  provid- 
ed for  in  the  previous  portion  of  that  sec- 
tion. With  all  respect,  I  am  constrained 
to  state  that  I  very  much  doubt  the  cor- 
rectness of  that  decision  but  being  a  deci- 
sion of  a  Bench  of  this  Court  I  cannot 
regard  it  as  anything  but  binding  on  me, 
But,  for  the  purpose  of  this  application,  it 
is  unnecessary  for  me  finally  to  hold  whe- 
ther or  not  the  view  of  the  law  as  set  out 
in  that  decision  is  correct.  In  that  case, 
what  the  learned  Judges  said  was  that  the 
section  applied  and  it  was  within  the  discre- 
tion of  the  lower  Court  to  make  or  to  refuse 
to  make  an  order  of  the  kind  referred  to 
therein.  Even  though  the  section  might 
apply  to  cases  of  the  death  of  a  minor, 
still,  I  am  clear  in  my  mind  that  the  sec- 
tion is  applicable  only  to  simple  cases 
where  there  can  be  no  doubt  whatever 
about  the  successiorj  to  the  minor  and  about 
the  items  of  property  which  belong  to  the 
minor  or  the  accounts  relating  to  the 
management  of  the  estate.  When,  however, 
there  is  a  dispute  relating  to  succession  or 
the  likelihood  even  of  a  dispute  as  to 
succession,  in  myjudgtnent,  the  Court  has 
no  powers  under  the  Guardians  and  Wards 
Act  to  seek  to  determine  the  succession  to 
a  deceased  minor  and  thereupon  make  any 
orders  for  granting  delivery  of  possession 
of  property.  Further  the  prayers  in  this 
application  are  far  from  being  identical 
with  the  reliefs  asked  for  apparently  in  the 
application  with  the  order  on  which  the 
learned  Judges  were*  dealing  in  the  case  iu 
the  Madras  Weekly  Notes.  The  section 
clearly  speaks  merely  of  orders  being  pass- 
ed for  the  delivery  of  any  property  in  the 
possession  of  the  guardian  or  under  his 
control  and  also  for  the  delivejy  of  any 
accounts  in  his  possession  or  control.  Tho 
prayers  in  this  present  application  are  for 
rendering  of  the  accounts.  The  phrase 
"rendering  of  the  accounts"  means  an  order 
against  the  guardian  for  an  account  as  in  a 
suit  for  an  account  and  cannot  possibly 
mean  the  delivery  of  account  books  alone. 
It  is  also  admitted  that  O.  8  No.  2  of 
1924  on  the  file  of  the  Additional  Sub- 
ordinate Judge  of  Ooimbatore  is  now  pend* 
(i)  51  lai.  Gas.  529;  (1018)  M.  W.  N.  440, 


ATMA  R  151  V.   NAXAZv  CHAND, 


£92  i.  0.  1926J 

ing  to  determine  the  succession  to, the 
minor's  estate,  In  the  face  of  the  admitted 
fact  that  the  succession  to  the  minor's  pro- 
perty is  under  litigation,  or  in  other  words, 
when  the  question  is  pending  before  another 
Court  of  competent  jurisdiction  for  the 
purpose  of  determining  the  person  who 
would  be  entitled  to  the  property  it  is 
impossible  to  accept  the  contention  that 
the  Court  that  appointed  the  guardian  of 
the  person  and  property  of  the  minor  would 
have  jurisdiction  to  make  such  an  order 
as  is  asked  for. 

I  am  also  surprised  at  prayer  No.  2  for 
the  removal  of  the  guardian  from  the  office 
when,  exconcessu,  his  powers  as  guardian 
have  ceased  under  s.  41  of  the  Guardians 
and  Wards  Act  and  that  is  the  very  basis 
of  the  contention  before  me. 

The  third  prayer  is  still  more  strange, 
that  the  Court  should  appoint  a  fit  and 
proper  person  to  be  in  charge  of  the  estate. 
I  certainly  think  that  a  Court  acting  under 
this  enactment  is  really  functus  officio 
when  the  minor  dies  Any  disputes  or 
rights  with  regard  to  the  property  of  the 
minor  should  be  litigited  in  the  ordinary 
Tribunals  of  the  country.  .It  may  be  that 
in  simple  cases  where  no  contest  arises  or 
cm  arise,  the  Court  having  regard  to  the 
fact  that  it  appointed  a  particular  person 
as  guardian  and  entrusted  him  with  the 
management  of  the  property  may  make 
simple  orders  for  the  purpose  of  the  de- 
livery of  the  property.  But  I  do  not  think 
even  such  a  provision  can  be  extended  to 
include  the  determination  of  doubtful  or 
disputed  tights  to  the  property  of  a  de- 
ceased minor. 

It  is  not  for  me  to  suggest  what  course 
the  petitioner  should  adopt.  I  should  have 
thought  that  the  remedy  would  have  been 
obvious  to  any  one  who  looked  at  the  facts 
and  circumstances  of  the  case  that  the 
petitioner  would  have  Ibeen  well-advised 
to  have  gone  to  the  Coimbatore  Court  and 
applied  for  the  appointment  of  a  Receiver 
who  would  have  been  able  either  to  get 
such  reliefs  as  might  be  needed  or  else 
to  enforce  such  rights  by  proper  proceed- 
ings. I  must,  therefore,  dismiss  the 
present  application. 
V.  N.^y.  Application  dismissed. 


571 


ALLAHABAD  HIGH  COURT. 

ExECunoN  FIRST  CIVIL  APPEAL  No,  96  OF 

1925. 

November  30,  1925. 

Present:— Mr.  Justice  Mukerji 

Babu  ATMA  RAM— APPLICANT—APPELLANT 

versus 

Lala  NANAK  CHAND  AND  OTHERS- 
OPPOSITE  PARTIES— RESPONDENTS. 

Execution  of  decree  —  Mortgage-decree — Sale  held 
without  compliance  with  condition  precedent,  validity 
of— Auction-purchaser,  position  of — Sale  set  aside — 
Purchase-money,  whether  can  be  directedto  be  re-paid  — 
Inherent  power  o-f  Court—Civil  Procedure  Code  (Act 
V  of  1008),  M.  m,  151 

Where  an.  auction-sale  takes  place  in  the  exercise 
of  a  jurisdiction  vested  in  a  Court,  a  third  party 
purchaser  cannot  be  bound  by  the  result  of  any 
further  litigation  relating  to  the  decree  Where, 
however,  the  terms  of  a  decree  itself  do  not  justify 
a  sale  of  the  property,  the  sale  cannot  hold  good 
merely  because  the  Court  had  pecuniary  and  terri- 
torial jurisdiction  over  the  property,  even  if  the 
auction-purchaser  is  a  bona  fide  purchaser,  m  the 
sense  that  he  is  a  third  party  purchaser  who  had  no 
notice  of  the  facts  of  the  case  [p  572,  col  2,  p  573, 
col  1  ) 

Where  a  mortgage-decree  lays  down  a  condition 
precedent  which  must  be  complied  with  befoie  the 
mortgaged  property  can  be  sold,  and  the  property  is 
sold  without  such  compliance,  the  sale  cannot  be 
allowed  to  stand  [p  573,  col  1  ~| 

Where  certain  property  which  has  been  sold  in 
execution  of  a  deciee  obtained  on  a  prior  mortgage 
is  subsequently  sold  in  execution  of  a  decree  obtained 
on  a  puisne  mortgage  and  the  subsequent  sale  is  set 
aside  at  the  instance  of  the  purchaser  at  the  pre- 
vious sale  in  a  proceeding  to  which  the  judgment- 
debtor,  the  decree-holder,  the  previous  purchaser 
and  the  subsequent  purchaser  aie  all  parties,  the 
Court  IIRS  inherent  power  to  direct  the  decree-holder 
to  pay  back  to  the  auction-purchaser  the  amount  paid 
by  the  latter  as  the  pi  ice  of  the  property  [ibid] 

Execution  first  appeal  against  a  decree 
of  the  Subordinate  Judge,  Bulandshahr, 
dated  the  24th  of  November  1924. 

Mr.  K.  C.  Mital,  for  the  Appellant. 

Messrs,  P.  L.  Bauer ji  and  Panna  Lal9  for 
the  Respondents. 

JUDGMENT.— This  is  an  appeal  by 
an  auction- purchaser  in  the  following  cir- 
cumstances. 

One  Mahbub  AH  Shah  was  the  original 
owner  of  a  certain  share  in  the  property  de- 
scribed   as     6£    sihams.     He    mortgaged 
four  sihams  out  of  the  aforesaid  share  to 
his  wife  Sultana  Begam  as  a  first  mortgagee 
and     then    he    mortgaged  the    entire  6| 
sihams  to    the    respondent    decree-holder 
Peary  Lai.    Sultana    Begam    obtained    a 
decree  for  sale  and  it  appears  that  in  her 
suit  Peary  Lai  was  not  a  party*    Sultana 
Bagam's  decree  was  executed  and  the  four 
^i/iams  share  mortgaged  was  Bold  and  wptg 


572 


ATMA  BAM  V.  NANAR  OHAND. 


purchased  by  the  respondents  Nanak  Chand 
and  Musammat  Parbati.  Peary  Lai  then 
brought  his  own  suit.  The  order  that  was 
passed  in  the  decree  that  followed  was  that 
the  property  mortgaged  might  be  sold,  but, 
if  Peary  Lai  wanted  to  sell  the  property 
purchased  by  Nanak  Chand  and  Musammat 
Parbati,  he  must  pay  them  a  sum  of 
Rs.  20,000  as  a  condition  precedent  to  the 
sale.  Peary  Lai  never  paid  the  sum  of 
Rs.  20,000,  but  brought  to  sale  a  2£ 
sihams  share,  with  the  allegation  that  this 
was  a  property  which  could  be  so^d  without 
previous  payment  of  any  money.  Nanak 
Chand  and  Musammat  Parbati  objected  to 
the  sale.  They  said  that  the  property  which 
was  going  to  be  sold  was  really  a  part  of 
the  property  which  they  had  purchased  in 
execution  of  a  decree  passed  on  the  prior 
mortgage. 

While  this  objection  of  Nanak  Chand  and 
Musammat  Parbati  was  still  undisposed  of 
the  share  advertised  for  sale  was  brought  to 
sale  and  was  purchased  by  the  appellant 
Atma  Ram,    The  objection  was  decided  in 
due  course  on  the   9th  of  December  1922 
and  it  was  dismissed.    The  sale  was  con- 
firmed on  the  12th  of  December  1922.  Nanak 
Chand     and    Musammat  Parbati    filed  an 
appeal  to  this  Court  against  the  order  dated 
the  9th  of  December  1922.    It  having  trans- 
pired that  the  property  had  in  the  meantime 
been  sold.  Atma  Ram,  the  auction-purchaser, 
was  made  a  party  in  appeal.    A  Division 
Bench  of  this  Court  found  on  appeal  that 
the  judgment  of  the    Subordinate  Judge 
was  very  unsatisfactory,  set  it  aside  and 
remanded  the  objection  to  the  Court   below 
for  disposal.    The  Court  below  had  three 
parties    before    it,    viz,  Atma    Ram    the 
auction-purchaser,     Nanak      Chand     and 
Musammat  Parbati,  the  objectors  and  the 
decree-holder,  Peary  Lai.    It  cajne  to  the 
conclusion  that  the  property  sought  to  be 
sold  was  really  a  part  of  the  property  which 
had  been  purchased  by  Nanak   Chand  and 
Musammat  Parbati  and  that,  therefore,  the 
property  could  not  be  sold  in  execution  of 
Peary  Lai's    decree  without  the  payment 
ordered.    It  accordingly  set  aside  the  sale 
and  ordered  that  the  objectors  be  put  in 
possession.    As  regards  the  purchase  money 
the  Court  remarked  that  Atma  Ram  might 
recover  it  by  a  regular  suit. 

Atma  Ram  in  his  appeal  contends  that 
he  is  a  bona  fide  purchaser  for  value  and  the 
sale  could  not  be  set  aside,  He  further  con- 
tends that  if  the  sale  be  set  aside  he  should 


[92 1.  0.192ft} 

be  paid  back  the  price  deposited  by  him  in 
Court  and  that  he  should  not  be  relegated 
for  his  remedy  to  a  suit. 

On  the  first  question  raised  the  learned 
Counsel  for  the  appellant  has  cited  several 
cases.  They  are  :  — 

Rewa  Mahton  v.  Ram  Kishen  Singh  (1), 
Zain-ul-Abdin  Khan  v.  Muhammad  Asghar 
A  li  Khan  (2),  Peary  Lai  v.  Hanif-un-nissa 
Bibi  (3),  Nazhat  ud-Daula  Abbas  Husain 
Khan  v.  Dilband  Begam  (4)  and  Khivlal 
Bhagwan  v.  Shambhuprasad  Parvatishankar 
(5). 

On  the  strength  of  these  cases  it  has  been 
argued  that  a  bona  fide  purchaser  at  an 
auction-sale  was  not  to  be  defeated  simply 
because,   later  on,  it  turned  out  that  the 
decree  was  not  a  right  one.    There  can  be 
no  doubt  that  these  casep  lay  doivn    that 
where  there  is  an  executable  decree  and  the 
Court  has  the  jurisdiction  to  execute  it,  a 
sale,  made  to  a  third    party,  who  purchases 
without  notice,  would  hold   good  although 
the  decree  may    be  reversed    later  on  in 
appeal   or    otherwise.    The    principle     is 
clear.    Where  a  sale    takes    place  in  the 
exercise  of  a  jurisdiction  vested  in  a   Court, 
a  third  party  purphaser  cannot  be  bound 
by  the  result  of  any  further  litigation  relat- 
ing to  the  decree.    In  my  opinion,  however, 
the  principle  laid  down  in  these  cases  has  no 
application  to  the  -facts  of  the  present  case. 
This  was  a  decree  which  was  not  executable 
at  all  as  against  Musammat  Parbati  and 
Nanak  Chand.  As  Mr.  Seth  has  rightly  put, 
it  is  a  misnomer  to  call  Nanak  Ohand  and 
Musammat  Parbati,  judgment-debtors,  The 
decree  was  virtually  a  combined  decree  for 
redemption  and  sale.    Nanak  Chand  and 
Musammat  Parbati  had  stepped    into  the 
shoes  of  Musammat    Sultana  Begam  who 
had  not  been  redeemed.    There  was  a  bar, 
according  to  the  judgment,  to  the  sale  of 
the   property  purchased   by  Nanak  Ohand 
and  Musammat  Parbati  till  the  mortgage, 
on  which  they  relied  as  a  shield,  had  been 
paid  off.    The  decree  was,  therefore,  a  com- 
bined decree  for  redemption  and  sale.    Jfc 
is  wrong  to  say  that  the  Court  was  seised  of 
the  jurisdiction  to  execute  the  decree  and 
could  sell  the  property  in  the  exercise  of  its 

(1)  14  0. 18;  13  I  A.  106,   10  Ind,  Jur  428;  4  Sar.  P. 
0,  J  746,  7  Ind,  Dec.  (N,  s  ,  13  (P.  C.). 

(2)  10  A.  166;  15  I  A.  12;  5  Sar.  P.  0.  J.  129;  6  Ind. 
Dec  (N  s)  112  (P.O.). 

(3)  34  Ind.  CQS.  303,  38  A.  210;  14  A.  L,  J.  302 

(4)  21  Ind.  Cas.  570;  16  O   0.  225 

(5)  29  B.  435;  7  Bom.  L.  R.  585, 


[92  L  0. 

jurisdiction.  If  the  decree  did  not  permit 
of  the  sale  of  the  propery,  the  mere  fact 
that  the  Court  had  pecuniary  and  territorial 
jurisdiction  would  not  permit  it  to  go  con- 
trary to  the  terms  of  the  decree  and  sell  the 
property.  In  my  opinion,  the  terms  of  the 
decree  itself  did  not  justify  a  sale  of  the 
property  and  the  sale  cannot  hold  good, 
even  if  the  appellant  be  a  bona  fide  pur- 
chaser, in  the  sense  that  he  is  a  third  party 
purchaser  who  had  no  notice  of  the  facts  of 
the  case.  The  result  would  be  that  the  sale 
must  beset  aside. 

The  second  question  is  whether  on  the 
sale  being  set  a^ide  the  appellant  should 
be  lelegated  to  a  suit  for  recovery  of  his 
money  or  whether  the  money  could  be  re- 
funded to  him  under  the  present  proceed- 
ings. It  seems  to  me  that,  in  the  circum- 
stances that  had  happened,  the  Court  below 
was  right  in  making  vihat  was  virtually  an 
order  for  restitution,  viz,  in  passing  an 
order  that  Nanak  Chand  and  Musammat 
Parbati  shall  be  put  in  possession  of  their 
property  which  had  been  taken  away  from 
them  as  a  result  of  sale  and  subsequent 
delivery  of  possession  to  Atma  Ram.  I 
have  held  that  the  Court  had  not  acquired 
jurisdiction  to  sell  the  property  and  the 
sale,  therefore,  was  a  void  one.  The  restitu- 
tion must  be  complete  and  the  decree- 
holder,  if  he  has  taken  away  the  money, 
must  hand  it  back  to  the  appellant.  If 
the  money  still  be  in  deposit  in  Court 
the  Court  will,  of  course,  hand  it  over 
to  the  appellant.  I  may  note  that 
0.  XXI,  r.  91,  has  no  application  to  the 
facts  of  the  present  case.  A  purchaser  who 
may  wish  to  have  a  sale  set  aside  on  the 
ground  that  the  judgment- debtor  had  no 
saleable  interest  would  have  only  thirty  days 
within  which  to  apply  from  the  sale.  In 
this  case  the  auction-purchaser  maintained 
that  the  sale  should  be  upheld  and  it  was 
not  till  the  Court  held  that  the  sale  was 
void  that  his  right  to  refund  of  the  pur- 
chase-money arose.  He  could  not,  there- 
fore, avail  himself  of  the  provisions  of 
the  Code.  I  do  not  see  why  the  appel- 
lant should  be  relegated  to  a  suit  for 
his  remedy  when  all  the  three  persons 
concerned  are  parties  to  the  present  pro- 
ceedings. The  matter  is  only  one  of  pro- 
cedure and  it  strikes  me  that  if  there  be  no 
other  rule  applicable,  the  rule  enacted  in 
B.  l&l  of  the  C.  P.  C.  would  be  ample  justi- 
fication for  ordering  a  refund  of  the  pur- 
chase money  in  the  present  proceedings. 


CHIT*  AMMA&  V.  PONNUSAMt  N'AIOKER. 


573 


Any  objection  to  re-payment  of  the  money 
that  the  decree-holder  might  have,  could 
be  urged  in  the  present  proceedings  and  he 
would  not  benefit  at  all  by  a  regular  suit 
being  instituted  against  him.  He  has  not 
shown  any  valid  cause  why  he  should  not 
refund. 

I  allow  the  appeal  in  part  and  modify 
the  decree  of  the  Court  below.  I  dismiss 
the  appeal  PO  far  as  it  is  aimed  against 
the  order  of  the  Court  below  setting  aside 
the  sale  and  ordering  restitution  of  the 
property  to  Nanak  Chand  and  Musammat 
Parbati.  I  modify  the  order  of  the  Court 
below  so  far  as  it  relegates  the  appellant 
for  his  remedy  to  a  suit.  1  order  the 
decree-holder  Peary  Lai  to  pay  back  the 
appellant  the  entire  purchase- money  paid 
by  the  latter  into  Court  without  deduct- 
ing therefrom  any  poundage-fee  or  other 
costs  accessory  to  a  sale.  He  will  also 
pay  interest  at  6  per  cent  per  annum  from 
the  date  of  his  recovery  of  the  money  out 
of  Court  The  appellant  must  have  the 
entire  money  which  he  paid  into  Court 
and  interest. 

The  appellant  must  pay  the  respondent 
Nanak  Chand  and  Musammat  Parbati  the 
costs  of  th<*  appeal  and  Peary  Lai  respond- 
ent must  pay  one-half  of  the  costs  incurred 
by  Atma  Ram  in  his  appeal  Peary  Lai 
must  pay  his  own  costs.  The  costs  in  this 
Court  will  include  Counsel's  fees  on  the 
higher  scale. 

z.  K.  Appeal  allowed 


MADRAS  HIGH  COURT. 

APPElL    AGAINST   OuDEK  No.    438  OF  1924. 

September  22,  1925. 
Present:— Mr.  Justice  Devadoss  and 

Mr.  Justice  Waller. 
CH1TTAMMAL  AND  ANQTHHR— APPELLANTS 

versus 

PONNUSAMI  NAICKER  AND  ANOTHER— 
RESPONDENTS. 

Provincial  Insolvency  Act  (V  of  1920],  ss  £,  56— 
Official  Receiver,  powers  of— Stranger  in  possetswn  of 
property— Insolvent  not  entitled  to  present  possession— 
Power  of  Court  to  disposes— Remedy— Question  of 
title,  decision  of — Procedure 

The  position  of  tlie  Official  Receiver  under  the 
Provincial  Insolvency  Act  ia  the  same  as  that  of  a 
Receiver  appointed  under  0  XL,  0  P  C  [p  574,  col. 

2J 

The  Insolvency  Court,  therefore,  cannot,  acting 
under  s.  56  of  the  Provincial  Insolvency  Act,  direct 
any  person  to  deliver  up  property  in  hia  possession 


574 


OHITTAMMAL  V.  tONNUSAMt  NAICKER. 


[921.  0. 


to  tlie  Official  Keceiver  unless  the  insolvent  is  en- 
titled on  the  date  of  such  application  to  the  present 
possession  of  such  property.  If  a  title  is  set  up  by 
the  person  in  possession,  it  is  open  to  the  Couit  on 
a  proper  application  bemg  made  under  s.  4  of  the 
Act  to  try  the  iesue  whether  the  insolvent  is  en- 
titled to  the  property  or  not  [ibid  ] 

Where  an  order  is  passed  under  s.  56  (3)  of  the 
Provincial  Insolvency  Act  it  does  not  deteimine  the 
rights  of  the  parties  and  though  the  Judge  may 
incidentally  determine  the  question,  yet  it  cannot 
be  said  that  the  question  is  finally  determined  [p.  575, 
col.  1  ] 

No  body  other  than  the  Official  Receiver  can  move 
under  s.  4*  of  the  Provincial  Insolvency  Act  unless 
the  Official  Receiver  is  unwilling  to  act  and  the 
Court  authorises  a  creditor  or  any  other  person 
interested  in  preserving  the  insolvent's  estate  to  act 
under  that  section  in  the  name  of  the  Official 
Receiver  [ibid.] 

The  power  given  to  an  Insolvency  Court  by  s  4  of 
the  Provincial  Insolvency  Act  is  subject  to  the  pro- 
visions of  the  Act,  one  of  which  is  the  proviso  to  s. 
56  (3)  which  is  in  the  way  of  the  Couit  removing 
any  person  from  the  possession  of  property  whom  the 
insolvent  has  no  present  right  to  remove,  [p.  575,  co], 
2.] 

Appeal  against  an  order  of  the  District 
Court,  Tinnevelly,  dated  the  4th  November 
1924,  in  I.  A.  No.  26*  of  1923,  in  I.  P.  No.  17 
of  1921. 

Mr.  K.  Bhashyam  lyengar,  for  the  Appel- 
lant. 

Mr.  K.  R.  Rangasami  lyenger,  for  the 
Respondent. 

JUDGMENT. 

Devadoss,  J. — This  appeal  is  against 
the  order  of  the  District  Judge  of  Tinne- 
velly directing  the  appellants  to  hand  over 
possession  of  the  property  in  their  possession 
to  the  Official  Receiver  and  bis  lessee.  The 
first  respondent  herein  is  the  lessee  of  the 
property  from  the  second  respondent  who 
is  the  Official  Receiver  of  Tinnevelly.  The 
appellants  were  in  occupation  of  the  pro- 
perty in  dispute  from  the  year  1897.  The 
respondents  applied  to  the  District  Judge 
for  an  order  under  s.  fc6  of  the  Provincial 
Insolvency  Act  directing  the  appellants  to. 
hand  over  possession  of  the  property  in  dis- 
pute to  the  respondents  on  the  ground  that 
the  property  was  the  property  of  the  insol- 
vent The  learned  Judge  has  passed  an  order 
under  s.  56  (3)  in  favour  of  the  respondents. 
The  question  for  consideration  is  whether 
such  an  order  can  be  passed  against  persons 
who  claim  adversely  to  the  insolvent.  Section 
56,  cl.  3,  2nd  paragraph  is  in  these  terms  : — 

"Provided  that  nothing  in  this  section 
shall  be  deemed  to  authorise  the  Court  to 
remove  from  the  possession  or  custody 
of  property  any  person  whom  the  insolvent 
not  a  present  right  so  to  remove/1  Aa 


*  application  under  8.  56  is  made  for  the 
purpose  of  realisation  o£  the  property  of 
the  insolvent.  If  a  person  is  in  possession 
of  l  he  property  on  "behalf  of  the  insolvent,  or 
claims  under  the  insolvent,  possession  of 
such  property  may  betaken  under  the  orders 
of  the  Court  by  the  Official  Receiver.  But 
where  the  person  in  possession  claims  adverse- 
ly to  the  insolvent,  or  where  he  is  able  to  show 
that  the  insolvent  is  not  entitled  to  present 
possession,  the  Court  has  no  power  to 
proceed  under  s,  56,  for  the  second  para- 
graph of  cl.  3  specifically  says  that  "no- 
thing  in  this  section  shall  be  deemed  to 
authorise  the  Court  to  remove  from  the 
possession  or  custody  of  property  any  person 
whom  the  insolvent  has  not  a  present  right 
so  to  remove.11  The  corresponding  provision 
in  the  Presidency  Towns  Insolvency  Act  is 
s.  58;andcl.  2  of  that  section  puts  the  matter 
beyond  doubt.  It  is  as  follows  :  — 

"The  Official  Assignee  shall,  in  relation 
to  and  for  the  purpose  of  acquiring  or 
retaining  possession  of  the  property 
of  the  insolvent,  be  in  the  same  posi- 
tion as  if  he  were  a  Receiver  of  the 
property  appointed  under  the  C.  P.  C. 
of  1908,  and  the  Court  may,  on  his  applica- 
tion enforce  such  acquisition  or  retention 
accordingly.1' 

The  position  of  the  Official  Assignee  is, 
therefore,  the  same  as  that  of  a  Receiver 
appointed  under  the  C,  P.  C,  Order  XL,  r,  1 
(2)  is  as  follows  :  — 

"Nothing  in  this  rule  shall  authorize  the 
Court  to  remove  from  the  possession  or 
custody  of  property  any  person  whom  any 
party  to  the  suit  has  not  a  present  right  so 
to  remove.11 

The  power  of  the  Court  under  the  Pro- 
vincial Insolvency  Act,  s.  56  is  not  any 
higher  than  the  power  oi  the  High  Court 
under  the  Presidency  Towns  Insolvency 
Act  s.  53.  The  Court,  therefore,  cannot, 
acting  under  s.  56,  direct  any  person  to 
deliver  up  property  in  his  possession  to 
the  Official  Receiver  unless  the  insolvent 
is  entitled  on  the  date  of  such  application 
to  the  possession  of  such  property.  If  a 
title,  however,  flimsy  is  set  up  by  the  person 
in  possession,  the  Court  should  not  act 
under  s.  56.  It  is  open  to  the  Court  on  a 
proper  application  being  made  under  s.  4 
of  the  Provincial  Insolvency  Act  to  try  the 
issue  whether  the  insolvent  is  entitled  to 
the  property  gr  not.  But  in  order  to  enable 
the  Court  to  do  that  a  proper  application 


PARUMAL  TflAWARDAS  V. 


[92  L  0.  1&26J 

ought  to  be  made  under  s.  4  of  the  Provin- 
cial Insolvency  Act,  and  the  other  side 
should  be  asked  to  plep,d  thereto. 

In  this  case  it  is  suggested  for  the  re- 
spondents that,  though  the  application  was 
made  under  s  56,  it  must  be  deemed  that  the 
enquiry  was  held  under  s.  4  and  the  order 
was  made  imder  that  section.  But  it  is 
clear  from  the  6th  paragraph  of  the  District 
Judge's  order  that  he  passed  the  order  only 
Under  s.  56  (3)  and  we  cannot  import  into 
it  something  which  is  not  there.  If  the 
application  was  one  under  s.  4  the  first 
respondent  should  not  have  been  made  a 
party.  Nobody  other  than  the  Official 
Receiver  can  move  under  s.  4,  unless  the 
Official  Receiver  is  unwilling  to  act  and 
the  Court  authorises  a  creditor  or  any  other 
person  interested  in  preserving  the  insolv- 
ent's estate  to  act  under  that  section  in  the 
name  of  the  Official  Receiver. 
^  It  is  again  urged  that  the  question  of  the 
title  of  the  appellant  has  been  gone  into  and 
has  been  found  again  st'aiid,  therefore,  it  is 
unnecessary  that  there  should  be  a  fresh 
proceeding  under  s,  4.  When  an  order  is 
passed  under  s.  56  (3)  it  does  not  deter- 
mine the  rights  of  the  parties  and  though 
the  Judge  ,may  incidentally  determine  the 
question,  yet  it  cannot  be  said  that  the 
question  is  finally  determined.  It  would 
not  be  right  to  allow  a  loose  procedure  to 
obtain  in  insolvency  proceedings.  The  law 
of  Insolvency  is  not  properly  understood  in 
the  mofusal  and  it  would  not  be  right  on 
the  part  of  the  Court  to  adopt  a  loose  pro- 
cedure for'the  purpose  of  realising  the  estate 
of  the  insolvent  such  a  procedure  would  lead 
inevitably  to  hardship  aud  to  an  unsettled 
state  of  the  law. 

In  regard  to  the  merits,  it  is  unnecessary  to 
£ay  much.  The  appellants  were  in  posses* 
sion  of  the  property  from  189?.  They  claim 
to  have  been  in  possession  of  the  property 
by  virtue  of  an  arrangement  in  the  family. 
It  is  urged  by  Mr.  Bhashyam  lyenger  that 
no  registered  document  is  necessary  for  a 
family  arrangement.  If  the  appellant  could 
show  that  there  was  a  proper  arrangement 
they  would  be  entitled  to  retain  possession 
of  the  property  against  the  insolvent  and 
against  the  Official  Receiver. 

On  behalf  of  the  respondents  it  is  urged 
that  the  first  appellant  is  dead  and,  there- 
fore, the  second  appellant,  the  daughter  of 
the  first  appellant,  had  no  right  to  be  in  pos- 
session of  the  property.  This  question  again 
have  to  tie  gone  into  fully  a$d  in  tliQ 


absence  of  an  investigation  into  the  title  of 
the  second  appellant  it  would  not  be  right  to 
deprive  her  of  the  possession  of  the  pro- 
perty and  drive  her  to  a  suit.  If  the  order  is 
to  be  construed  as  an  order  under  s.  4  a  suit 
would  be  barred  ;  If  it  is  construed  as  an 
order  under  s.  56(3)  the  order  is  illegal  in 
asmuch  as  the  insolvent  is  not  entitled  to 
present  possession  of  the  property. 

In  a  recent  case  it  was  decided  by  Spe&cer, 
J.,  and  myself  that  the  power  given  by  s  4 
of  the  Insolvency  Act  is  subject  to  the 
provisions  of  the  Act,  one  of  which  is  the 
proviso  to  s,  56  (3)  which  is  in  the  way  of 
the  Court  removing  any  person  from  the 
possession  of  property  whom  the  insol- 
vent has  no  present  right  to  remove. 

The  appeal  is  allowed  and  the  order 
of  the  lower  Court  is  set  aside  with  costs 
throughout. 

Waller,  J. — I  agree  that,  where  there 
is  a  dispute  as  to  the  insolvent's  title,  s  56 
cannot  be  invoked.  For,  in  order  that  that 
section  may  be  resorted  to,  the  insolvent 
must  have  an  immediate  right  to  remove 
from  possession.  Proceedings,  therefore, 
should  have  been  taken  under  s.  4. 


v.  N.  v. 
z,  K, 


Appeal  allowed. 


BIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  APPEAL  No.  16  OF  1924. 

September  25,  1925 
Present— Mr.  Kennedy,  J.  C.,  and 

Mr.  Tyabji,A.J.  C. 
PARUMAL  TH  A  WE  RD  AS— APPELLANT 

*  versus 
Musammat  MAKHAN — RESPONDENT.  - 

Civil  Procedure  Code  (Act  V  of  1908),  s  tf—Execu* 
lion  of  decree  —Death  of  decree-holder — Legal  repre- 
sentative, determination  of — Procedure— Hindu  Law 
-•-Separated  brother,  whether  legal  representative  in 
presence  of  widow 

When  a  decree-holder  lias  died  and  some  p3rson 
appears  asking  to  be  allowed  to  execute  the  decree  as 
the  legal  representative  of  the  deceased  decree-holder, 
the  Executing  Court  itself  should  under  s  47  of  the 
0.  P.  0.  decide  who  the  legal  representative  of  the 
deceased  decrae-holder  is  and  should  not  ref^r  the 
to  separate  proceedings, 


576 

If  the  person  who  claims  to  be  the  legal  represen- 
tative of  the  deceased  decree-holder  produces  a  Pro- 
bate or  Letters  of  Administration  or  any  such  geneial 
conclusive  pix>of  of  his  status,  the  Court  need  not  go 
further  and  should  accept  that  as  conclusive,  but  if 
there  is  no  such  ^evidence,  the  Executing  Court  itself 
should  make  an  inquiry  and  come  to  a  decision 

Where  a  separated  Hindu  dies  leaving  a  widow  his 
brother  cannot  be  regarded  as  his  legal  representa- 
tive and  cannot  be  allowed  to  execute  a  decree  ob- 
tained by  the  deceased. 

Appeal  against  the  judgment  and  decree 
of  the  Assistant  Judge,  Hydeiabad  (Sind), 
dated  the  17th  December  1923. 

Mr.  Tahilram  Maniram}  for  the  Appel- 
lant. 

Mr.  Snkishendas  H.  Lulla,  for  the  Re- 
spondent. 

JUDGMENT.— In  this  case  one  Haru- 
mal obtained  a  decree  against  one  Allah 
Bachayo  Harumal  died  and  Parumal  made 
an  application  to  execute  the  decree.  The 
Court  of  the  Sub- Judge  of  Mirpur  Khas 
did  not  decide  whether  Parumal  was  the 
legal  representative  of  Harumal  but  refer- 
red him  to  Court  asking  him  to  get  a 
succession  certificate  The  judgment-debtor 
was  not  satisfied  with  this  and  appealed 
to  the  District  Court,  Hyderabad,  which 
found  that  Parumal  was  not  the  legal  re- 
presentative of  Harumal  and  found  also 
that  in  asmuch  as  Harumal  had  left  widows 
Parumal  could  be  in  no  case  the  legal  repre- 
sentative of  Harumal  and,  therefore,  dis- 
missed the  execution  application  filed  by 
Parumal  as  being  incompetent  with  costs. 
Againat  that  Parumal  comes  here. 

The  question  dealing  as  it  does  with 
the  matter  of  a  legal  representative  is 
one  which  is  still  left  wrapped  up  in 
almost  total  obscurity  by  the  Code.  But 
it  would  seem  that  when  a  decree-holder 
has  died  and  some  person  appears  asking 
to  be  allowed  to  execute  that  decree  as 
representing  the  decree-holder  then  it  is 
under  s.  47  necessary  that  the  Court  itself 
should  decide  who  the  legal  representative 
of  the  deceased  person  is?  It  is  true  that 
no  machinery  is  laid  down  by  the  Code 
as  to  how  the  investigation  is  to  be  held 
nor  is  it  anywhere  indicated  what  the 
effect  of  such  finding  would  be  if  the 
person  that  the  Court  decides  to  be  the 
legal  representative  ultimately  turns  out 
not  to  be  such.  But  that  is  a  defect  which 
is  found  not  only  in  the  case  of  decrees 
but  even  in  the  case  of  suits.  The  fact 
remains  that  it  is  the  business  of  the  Exe- 
cuting Court  itself  to  decide  who  the  legal 


V,  MAKHAN, 


[98  I.  Q 


representative  is.  If  the  claimant  who 
claims  to  be  the  legal  representative,  t  pro- 
duces a  Probate  or  a  Letter  of  Administra- 
tion or  any  such  general  conclusive  proof 
of  his  status  then  the  Court  certainly  need 
not  go  further  and  should  accept  that  as 
conclusive.  But  if  there  is  no  such  evidence 
then  it  is  not  for  the  Court  to  refer  to  the 
applicant  to  separate  proceedings,  but  it 
must  itself  make  up  its  mind  after  such 
enquiry  as  may  bepDssible.  Therefore,  it 
is  clear  that  the  first  order  of  the  Sub- 
Judge  of  Mirpur  Khas  was  wrong  and  he 
should  himself  have  decided  whether 
Parumal  was  or  was  not  the  legal  representa- 
tive of  Harumal.  Apparently  he  was  of  the 
opinion  that  Parumal  was  not  the  legal 
representative  of  Harumal  although  that  is 
not  clearly  laid  down,  but  it  is  on  this 
particular  point  that  'the  decision  of  the 
District  Court  turns.  There  it  is  found  that 
Parumal  was  separate  from  Harumal  and 
that  Harumal  left  widows.  In  such  a  case  it 
is  clear  that  while  those  widows  exist  or 
until  Parumal  has  been  in  some  way  able  to 
obtain  some  power  to  act  on  behalf  of  the  de- 
ceased Harumal,  Parumal  cannot  be  the  legal 
representative  of  Harumal  and  is,  therefore, 
not  entitled  to  proceed  with  this  execution 
application.  It  is  not,  therefore,  necessary 
to  discuss  as  to  what  are  the  rights  of  the 
brother  of  a  deceased  Hindu  whether1 
separate  or  joint  in  respect  of  the  separate 
or  undivided  property  of  the  deceased  foi^ 
that  is  wholly  beside  the  question.  What 
is  wanted  is  to  find  out  who  the  legal 
representative  of  Harumal  is,  not  who  the 
heir  of  reversioner  is  and  it  seems  quite 
clear  on  the  present  evidence  before  us  that 
Parumal  is  not  the  legal  representative  of 
Harumal,  and,  therefore,  the  order  of  the 
District  Court  dismissing  the  application  to 
execute  HarumaFs  decree  seems  correct. 

We,  therefore,  dismiss  this  appeal  with 
costs. 


z.  K. 


Appeal  dismissed. 


[92  I.  6.  1928]  RAM   KARAN  V. 

LAHORE  HIGH  COURT. 

CRIMINAL  APPEAL  No  51  OF  TJ25. 

May  25,  1925. 
Present: — Mr.  Justice  Martineau  and 

Mr  Justice  Zafar  AH. 
RAM  KARAN  AND  OTHBRS — APPELLANTS 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure\Code  (Act  V  of  1898),  ss.  162,  288 
— Statement  made  by  witness  to  Police,  how  far  rele- 
vant— Statement  made  before  Magistrate — Conflicting 
statements— Evidence ,  value  of 

A  atatement  made  by  a  witness  to  the  Police 
during  the  course  of  investigation  is  relevant  only 
for  the  purpose  of  contradicting  the  testimony  of  the 
witness  given  at  the  trial,  and  any  statement  pre- 
viously made  by  a  witness  before  a  Magistrate, 
including  a  statement  made  before  the  Committing 
Magistrate  which  has  not  been  transferred  to  the 
Sessions  record  under  the  provisions  of  s  2t-8,  Cr 
P  C  ,  is  relevant  only  for  the  purpose  of  contradicting 
or  corroborating  the  statement  made  by  the  witness  at 
the  trial  [p  581,  col  2.] 

No  reliance  can  be  placed  on  the  statement  of  a 
witness  made  at  the  trial  when  it  is  in  hopeless 
conflict  with  the  previous  statements  of  the  witness, 
[p.  582,  col  2] 

Criminal  appeal  from  an  order  of  the  Ses- 
sions Judge,  Gurgaon,  dated  the  18th  October 
1924. 

Bakshi  Tek  Chand,  Lalas  Anant  Ham 
Khosla  and  Jagan  Nath,  for  the  Appellant. 

Mr,  Des  Raj  Sawhny,  for  Government  Ad- 
vocate, for  the  Respondent. 

JUDGMENT.— The  appellants  Amin 
Chand  and  his  nephews  Ham  Karan  and 
Piare  Lai  have  been  convicted  of  six  mur- 
ders which  were  committed  in  the  house 
of  one  Pahlad,  a  Bania  at  Gurgaon,  on  the 
night  of  the  20th  21st  May  1924,  and  have 
been  sentenced  to  death  for  each.  They 
have  also  been  sentenced  to  seven  years* 
imprisonment  each  for  attempting  to  mur- 
der Pahlad'e  wife  Chambeli  and  her  infant 
daughter  Shanti,  who  is  also  called  8ano. 
One  Dial  Das  has  been  similarly  convicted 
and  sentenced,  but  has  not  appealed,  so 
that  his  case  is  before  us  only  under  s. 
374  of  the  Cr.  P.  0.  for  consideration  of  the 
question  as  to  the  confirmation  of  the  sen- 
tences of  death,  One  Panna  Lai  was  also 
tried  for  the  offences,  but  has  been  ac- 
quitted. 

Pahlad,  who  wafrtine  of  the  persons  mur- 
dered and,  was  a  collateral  of  the  appellant?, 
was  about  23  years  old  at  the  time  of  his 
death.  He  had  bean  left  an  orphan  at  the 
age  of  two  or  three,  and  Bucha  Mai,  a 
brother  of  the  appellant,  Amia  Ohand,  was 
appointed  Ms  guardian.  Bucha  Mai  and 

37 


his  brother  and  nephews  lived  in  Gurgaon 
Sadar,  about  a  mile  or  a  mile  and  a  half 
from  the  town,  and  Pahlad  lived  with  them 
alter  his  father's  death.  Bucha  Mai  manag- 
ed Pahlad 's  estate  and  had  him  married 
in  1917.  Early  in  1922  Bucha  Mai  was  dis- 
charged from  the  guardianship  on  Pahlad 
coming  of  age,  hut  Pahlad  and  his  wife 
continued  living  with  Bucha  Mai  and, 
after  Bucha  Mai's  death  in  October  or  No- 
vember 1922,  with  his  widow  Gulab  Dei  and 
Ram  Karan's  son  Kundan,  whom  Bucha 
Mai  had  adopted. 

On  the  1st  August  1923  Pahlad  entered 
into  an  agreement  with  the  appellants  to 
give  them  a  shop  in  exchange  foi  a  plot 
of  land  on  which  he  wanted  to  build  a 
house,  and  two  deeds  were  drawn  up,  one 
executed  by  Pahlad  and  the  other  by  the 
appellants,  but  the  proposed  exchange  was 
not  carried  out  and  Pahlad  built  his  house 
on  another  plot  of  land  adjoining  Piare 
Lai's  house,  which  had  been  bought  for 
him  during  his  minority  by  Bucha  Mai, 
and  the  agreement  between  Pahlad  and  the 
appellants  was  cancelled  on  the  6th  March 
1924  Pahlad  began  building  his  house  in 
October  or  November  1923,  and  moved  into 
it  with  his  family  on  the  15th  February 
1924  when  the  lower  storey  had  been  com- 
pleted. After  they  had  moved  into  the 
house  plague  broke  out  at  Ballabgarh, 
where  Chambeli's  home  was,  and  her  sister 
Ramon  (aged  11)  and  her  cousins  Khacheru 
and  8Mb  Charan  (aged  9  and  7  respectively) 
came  from  there  to  Gurgaon  and  stayed 
with  Chambeli.  A  boy  of  14  named  Amar 
Singh,  whose  father-in-law  Zora war  was  a 
collateral  of  Pahlad,  also  came  to  Gurgaon 
on  account  of  plague  breaking  out  in  his 
village,  and  he  slept  sometimes  at  Pahlad's 
house  and  sometimes  at  Ram  Karan's. 

For  about  two  months  before  the  mur- 
ders a  Sadhu,  named  Gobind  Das,  had 
come  from  Jaipur  State,  and  been  living 
at  Gurgaon  in  the  house  or  in  the  Dharm- 
sala  of  Panna  Lai.  He  posed  as  a  physi- 
cian and  as  a  person  possessing  occult 
powers,  among  which  was  the  power  of 
ensuring  that  a  child  to  be  born  to  a  woman, 
should  be  a  son.  For  some  three  weeks 
before  the  murders  he  yisited,  Pahlad's 
house  and  treated  Chambeli,  as  she  was  ex- 
pecting her  confinement  and  wanted  a 
son.  He  used  to  come  to  the,  house  at  7  or 
8  in  the  evening  and  recite  mantras^  after 
dark  over  an  axe  and  a  gandasa  which  he 
had  with  him,  and  to  apply  wndhur  to 


578 


RAM  KARAN  t>. 


Chambeli's  forehead.  After  reciting  the 
mantras  he  used  to  leave  the  axe  and  the 
hatchet  in  the  kitchen.  He  used  some- 
times also  to  sleep  at  the  house.  Dial  Das 
is  said  to  be  Gobind  Das'  brother  or  Chela 
and  to  have  come  to  Qurgaon  a  few  days 
before  the  murders.  No  mantras  were  re- 
cited by  Qobind  Das  on  the  night  of  the 
20th  May,  but  Chambeli  says  that  he  came 
during  the  daytime  and  asked  her  for  1£ 
seers  of  gold  as  his  reward  for  treating  her 
and  that  she  promised  to  give  it  to  him. 

It  may  be  noted  in  cross-examination 
she  said  that  he  wanted  to  be  paid  imme- 
diately as  he  had  finished  the  mantras,  but 
in  re-examination  she  altered  her  statement 
on  that  point. 

On  the  night  of  the  20th  May  Pahlad, 
his  wife's  cousins  Khacheru  and  Shib 
Oharan,  and  the  boy  Amar  Singh  slept  in 
a  room  in  the  upper  storey  of  Pahlad's 
house,  and  Chambeli,  her  children  Anguri 
(aged  5)  and  Shanti  (aged  \\  or  2)  and  her 
sister  Ramon  slept  on  the  ground  flour  in  a 
dalan  on  the  left,  t,e  ,  on  the  western  side, 
of  the  courtyard.  Early  the  next  morning 
Pahlad,  Khachevu,  and  Shib  Charan  were 
found  lying  murdered  in  the  room  in  which 
they  had  slept,  and  Amar  Singh  was  found 
there  wounded  and  unconscious.  Anguri 
and  Ramon  had  also  been  murdered,  the 
body  of  the  former  being  found  on  a  bed  in 
the  dalan  in  which  they  had  slept,  and  that 
of  the  latter  on  the  ground  in  the  kitchen, 
which  is  on  the  right  side,  i.e.,  the  eastern 
side,  of  the  court-yard.  Chambeli  was  found 
lying  wounded  and  unconscious  in  the 
north-east  corner  of  the  court-yard,  and  her 
child  Shanti  was  lying  near  her  with  a 
wound  on  the  forehead,  There  were  marks 
of  blood  on  the  northern  and  eastern  walls 
near  which  Chambeli  was  lying,  The  in- 
juries received  by  the  persons  killed  and 
wounded  were  incised  wounds,  and  had 
apparently  been  inflicted  with  the  axe 
which  Qobind  Das  used  to  have  with  him, 
as  it  was  found  lying  bloodstained  near 
Ramon's  body.  The  gandasa  was  not  found. 
Qobind  Das  had  disappeared  and  he  has  not 
been  traced. 

The  Assistant  Surgeon,  Doctor  Chandar- 
bansi,  went  to  Pahlad's  house  at  5-15  or 
5-30  in  the  morning  on  hearing  of  the 
occurrence,  and  had  Amar  Singh  and  Cham- 
beli and  her  child  Shanti  taken  to  the  hos- 
pital, Amar  Singh  died  in  the  hospital 
without  recovering  consciousness.  The 
'  wound  was  not'  serious,  and 


0, 


bell's  life  was  saved,  though  she  had  been 
very  seriously  injured.  Chambeli  recover- 
ed consciousness  in  about  twenty-  four  hours, 
but  for  many  dayssafter  she  could  not 
speak,  both  her  jaws  having  been  fractured. 
She  remained  in  the  hospital  till  the  l(Jth 
July  when  she  was  discharged. 

The  Sub-Inspector  Rahim  Bakhsh,  who 
investigated  the  case,  got  some  of  ttfe 
people  of  Gurgaon  to  form  a  panchayat  to 
try  and  find  out  who  the  murderers  were, 
and  on  the  25th  May  in  consequence  of  the 
opinion  given  by  the  members  of  the  pan- 
chayat  and  on  account  of  the  rumours 
which  reached  him  he  arrested  the  three 
appellants  as  well  as  Kundan  and  Dial 
Das.  Panna  Lai  was  arrested  on  the  22nd 
June. 

With  regard  to  the  motive  for  murders 
it  is  alleged  by  the  prosecution  (1)  that 
there  was  ill-feeling  between  the  appellants 
and  Pahlad,  (2)  that  the  appellants  had 
suffered  losses  and  were  in  urgent  need  of 
money,  (3)  that  Pahlad  was  demanding  pay- 
ment of  the  money  which  they  owed  him 
and  they  could  not  pay,  and  (4)  that  Pahlad 
was  a  rich  man,  and  that  as  his  reversioners 
they  stood  to  gain  considerably  by  his 
death. 

With  regard  to  the  first  point  Nathi  (P. 
W.  No.  34),  who  was  a  partner  of  Pahlati, 
mentions  a  quarrel  between  Piare  Lai  and 
Pahlad  about  a  matter  of  removing  a  lime 
grinding  mill  from  the  land  which  the 
appellants  were  to  give  in  exchange  for 
Pahlad's  shop,  but  even  it  there  was  this 
quarrel  it  does  not  seem  to  have  been  at  all 
serious,  for  Nathi  says  that  it  happened 
some  four  months  before  the  murders  and 
that  Pahlad  and  the  appellants  used  to  meet 
one  another  as  relations  after  it. 

The  learned  Sessions  Judge  thinks  the 
fact  of  Pahlad  building  a  house  for  him- 
self and  moving  into  it  before  it  was  com- 
plete shoves  that  there  must  have  been 
quarrels  between  members  of  the  two  fami- 
lies. But  it  was  perfectly  natural  for  Pahlad 
to  want  to  have  a  separate  house  for  him- 
self and  his  family,  and  when  they  moved 
into  it  the  lower  storey  was  complete  and 
there  was  plenty  of  accommodation  for  them, 
Chambeli,  no  doubt,  says  that  they  moved 
into  the  new  house  because  of  quarrels  be- 
tween the  families,  but  the  quarrels  which 
she  speaks  of  between  the  women  were 
only  ordinary  verbal  quarrels  and  she  ad- 
mits that  she  knows  of  no  dispute  between 
her  husband  and  the  appellants  except  iu 


[92 1.  0. 1926] 


BAM  KARAN  ?,  EMPEROR. 


579 


regard  to  the  proposed  exchange  of  the  plot 
of  land  for  a  shop.  She  also  says  that  even 
after  the  quarrels  the  appellants  and  the 
women  of  their  famil?  used  still  to  pay 
visits  to  Pahlad's  house.  That  Pahlad 
and  his  family  continued  to  be  on  friendly 
terms  with  the  appellants  is  indeed  shown 
by  the  fact,  admitted  by  Ohambeli,  that 
when  the  lower  storey  of  her  husband's  new 
house  was  completed,  he  gave  a  feast  as 
a  house  warning  which  the  appellants  at- 
tended. 

We  are  unable  to  agree  with  the  Sessions 
Judge  that  the  cancellation  of  the  agree- 
ment for  exchanging  a  shop  belonging  to 
Pahlad  with  land  belonging  to  the  appel- 
lants caused  ill-feelings.  He  says  that  the 
shop  must  have  been  worth  much  more 
than  the  land,  but  this  is  a  pure  assump- 
tion not  warranted  by  any  evidence.  Nor 
is  there  any  thing  to  justify  his  view  that 
the  conditions  in  the  agreement  in  regard 
to  the  house  which  Pahlad  had  intended 
building  on  the  land  which  he  was  to  get 
were  onerous,  and  that  a  hard  bargain  must 
have  been  driven  with  Pahlad.  The  condi-. 
tions  appear  to  us  to  have  been  quite 
natural  and  reasonable.  Afterwards  wh.en 
Pahlad  changed  his  mind  and  decided  to 
build  on  the  land  which  had  been  bought 
for  him  by  Bucha  Mai  the  appellants  con- 
sented to  cancel  the  agreement.  That  they 
cancelled  it  of  their  own  free-will  was  ex- 
pressly stated  by  them  in  the  endorsement 
to  which  they  appended  their  signatures 
on  the  deed,  Ex.  P,  executed  by  Pahlad.  An 
endorsement  in  similar  terms  was  written 
on  the  counter-part  P-Q  which  had  been 
executed  by  the  appellants,  and  this  was 
signed  by  Pahlad.  There  is  no  evidence 
whatever  to  show  that  any  pressure  was 
brought  to  bear  on  the  appellants  in  the 
matter  of  the  cancellation  of  the  agreement. 

The  prosecution  has  made  a  point  of  the 
fact  of  Pahlad  having  applied  on  the  19th 
March  1924  for  a  gun  license,  but  there 
is  n6  evidence  to  show  that  it  was  through 
fear  of  the  appellants  that  he  asked  for 
the  license.  The  application  was  rejected 
on  the  2nd  April,  and  no  steps  appear  to 
have  been  taken  by  Pahlad  for  obtaining 
protection  for  himself  against  the  appel- 
lants, nor  did  he  prcsant  any  petition  or 
complaint  against  them. 

The  Sessions  Judge  has  referred  to  the 
fact  that  Piare  Lai's  two  sons  died  of  small- 
pox a  few  days  befora  the  murders  and 
that  Pahlad  went  on  with  the  building  of 


the  northern  wall  of  his  house,  which  ad- 
joined Piare  Lai's  house,  during  their  ill- 
ness and  after  the  death  of  the  eldest  son. 
He  \nfers  from  this  that  the  relations  be- 
tween Pahlad  and  Piare  Lai  were  strained, 
but  the  further  fact  which  he  mentions  that 
Pahlad  stopped  the  building  on  the  18th 
May  as  soon  as  Piare  Lai  asked  him  to  do 
so  shows  that  such  an  inference  is  not  justifi- 
ed. 

He  also  says  that  there  « is  no  evidence  to 
show  that  Pahlad  went  to  condole  with 
Piare  Lai  when  his  sons  died  or  that  he 
attended  the  funeral  ceremonies,  but  the 
simple  reply  to  this  is  that  there  is  also  no 
evidence  to  show  the  contrary. 

We  are  of  opinion,  therefore,  that  the  pro- 
secution has  failed  to  prove  that  the  appel- 
lants bore  any  ill-will  towards  Pahlad, 

Coming  next  to  the  matter  of  the  appel- 
lants' financial  position,  we  note  in  the  first 
place  that  the  Sessions  Judge  has  made 
a  mistake  in  thinking  that  the  income  tax 
paid  by  them  shows  that  their  annual  in- 
come was  only  about  Rs.  5,000.  He  has 
apparently  confused  the  tax  which  they 
paid  with  that  which  was.  paid  by  Pahlad. 
The  income-tax  paid  by  the  appellants* 
firm  at  Gurgaon  and  their  branch  firm  at 
Pachparwa  amounts  to  Rs.  691-12  and  this 
would  represent  an  annual  income  of  about 
Rs.  22,000. 

In  the  second  place  the  learned  Judge  ia 
wrong  in  thinking  that  it  has  been  shown 
that  the  appellants1  firms  were  not  doing 
well  and  were  in  urgent  need  of  money. 
He  is  impressed  by  the  fact  that  large  sums 
had  been  sent  by  the  appellants'  head  firm 
at  Gurgaon — Sil  Ohand-Shasi  Ram,  to  the 
branch  firms  and  had  not  been  re- paid.  But 
these,  sums  were  sent  in  the  ordinary  way 
to  the  branch  firms  for  investment  in  the 
businesses,  and  the  fact  that  they  remained 
invested  in  these  firms  and  were  not  sent 
back  does  not  in  the  least  show  that  the 
money  was  lost  or  that  the  firms  were  in  a 
shaky  C9iidition.  It  is  in  no  way  shown  that 
the  firms  had  been  incurring  losses  and 
that  the  appellants  needed  money  urgently 
on  that  account.  On  the  contrary  the  per- 
sons in  charge  of  the  various  firms  have 
been  examined  and  have  produced  the  ac- 
counts and  the  chithas  prepared  from  then^ 
while  the  chitkas  prepared  from  the  Gur- 
gaon firm's  books  of  which  the  Police  had 
taken  possession,  have  also  been  produced, 
and  all  this  evidence  goes  to  show  that  the 
firms  are  prospering  and  have  no  bad  debts, 


580 


KAIUN  V.  EMPEROR. 


[92 1.  0. 


A  rough  idea  of  the  extent  of  the  appel- 
lants' business  is  given  by  Ram  Singh,  (P. 
W.  No.  i5)  who  says  that  the  Gurgaon  firm 
has  dealings  to  the  extent  of  about  h#lf  a 
lakh,  and  that  the  branch  firms  have  deal- 
ings to  the  extent  of  about  two  or  two-and- 
a-half  lakhs. 

Only  two  debts  are  shown  to  have  been 
due  from  the  appellants.  One  was  Rs.12,000, 
which    they  had  borrowed  from    Kanhiya 
(P.  W.  No.  28)  in  January  1924.  He  took  no 
receipt  or  writing  of  any    kind     from    the 
appellants  when  he  advanced  the    money, 
a   fact  which  shows  the  good  credit  which 
they  enjoyed,  and  he  made  no  demand  for 
payment.    He  has  explained  that  the  loan 
.was  taken  in  the  ordinary  course  of  busi- 
ness as  the    appellants  dealt  in  grain  and 
ubtcMo    take  advances    when  they  were 
buying  grain  and  to  re-pay  them,  when    it 
was    sold.    The    other    debt   was   one    of 
Rs.  7,000  borrowed  from  Pahlad  in  January 
1922.    For  this  loan  also    no    writing  had 
been  taken,  and  it  is  not  stated  by  Cham- 
beli  or  Pahlad's  paitner,  Nathi  (P.  W.  No. 
3C,  or  any  other  prosecution  witness  that 
Pahlad  had  asked  the  appellants  to  re-pay 
him.  Kundan  (D.    W.    No.   8),  the  son  of 
Ram  Karan  and  the  adopted  son  of  Bucha 
Mai,  fays  that  Pahlad  had    asked  for   the 
return    of  his  money  about  3  or  4  months 
before    the   murders,  but    also     gays  that 
Pahlad  subsequently  said  that  he  did  not 
want  the  money  then  and  ^ould  take  it 
later.    Kven  if  Pahlad  was  wanting   to  be 
re-paid  the    appellants   could  have  raised 
the  money  without  any  difficulty  either  by 
yelling  some  of  the  grain   of   which  they 
had  large   stocks,  or  by  utilising  part  of 
their  cash     balances,    or     by    borrowing. 
There  is  lastly  the  theory  that  the  appef-- 
lants  thought    that  -  they    would  gain  sub- 
st&ntially  by    exterminating  Pahlad    and 
his  family.    Their     share  by   inheritance 
in  the  property  left  by  Pahlad  would  be 
£th,or  if  Kundan's  share  is  included  3/16th, 
and  we  are    not  impressed  by  the  view 
taken  by     the  Sessions   Judge  that  they 
might  have  believed  that  their  share  would 
be  greater.    In  coming  to  a  conclusion  as 
to  the  amount  of  Pahlad's  properly  he  has 
relied  on  a    chitha  in  Pahlad's  books  in 
•which  Pahlad's   assets  are  shown  as  of  a 
total  value  of  Rs,    74,546,  but  this  chitha 
(No.  1  on  page  6  of  Paper-Book  B;  is  un- 
dated while  there  is  another  one  (No.  II 
on  page  7),  bearing  a  date   corresponding 
to  tbe  lib  December    1923,  according  to 


which  the  assets    were     of    the  value  of 
Rs.  42,239,    Chitha  No.  I  must  apparently 
relate   to  an  earlier  .period    as  it  contains 
an  entry  of  Government  promissory  notes, 
which  are  not  mentioned  in   chitha   No.    II 
and  had,  therefore,  presumably  been  sold 
before  chitha  No.  II  was  written.    There  is 
no  mention  of  any  cash  in  chitha  No.  II, 
nor  is    there  any    proof  that  Pahlad   had 
any  cash  in  his  house  or  fehop  at  the  time 
when  he  was  murdered.    The  learned  Judge 
appears  to  have    over-estimated  the  value 
of  the  property  which   would  ccme  to  the 
appellants  as  their  share  in  the  inheritance. 
Moreover,    a  long  period    was  bound    to 
elapee  before  they  could  obtain  their  share, 
as  the    property  would    have    first  to  be 
partitioned.    The  theory  that  in  such    cir- 
cumstances the  appellants  planned  the  mur- 
ders of  Pahlad  and  all  his  family,  to  whom 
they  bore  no  ill-will,  and  without  the  pros- 
pect of  gaining  any  immediate  advantage 
appears    to  us  to  be  wildly  improbable.    It 
is  particularly    improbable  that  Piare  Lai 
would  have  taken  part  in  these  crimes  just 
after  he  had  lost  two  of  his  sons,  of  whom 
one  died  on  the  16th  and  the  other  on  the 
19th  May. 

No  adequate  motive  has,  in  our  opinion, 
been  established  for  the  appellants  to  com- 
mit the  crimes  of  which  they  have  been 
convicted. 

We  come  now  to  the  evidence  as  to  the 
commission  of  these  crimes.    This  consists 
of  the    statements    of  two  witnesses,  viz, 
Pahlad's   widow,  Chambeli   and  one  Har- 
dwari,  who  is  the  son  of  a  sister  of  Bucha 
Mai's  widow  Oulab  Dei  and  had  been  living 
in  Gurgaon   for  about  two  months.    Har- 
dwari's  story  is  briefly  this: — He  slept  some- 
times at   Kundan's  house  and  sometimes  at 
Pahlad's.    On  the   night   of  the   murders 
he  had  gone  to  Pahlad's  house   to  have  a 
talk,    and  while   he  was  there  Gulab  Dei 
called  out  to  him  to  bring  his    razai  and 
come  an.d  sleep  at  Kimdan's    house.    He 
intended  doing  so,  but  Amar  Singh  per- 
suaded him  to  stay  at  Pahlad's  house,    so 
he  slept  there  in  the  same  room  as  Pahlad 
and  the  boys.    In  the  middle   of  the  night 
he  was  roused  by  hearing  Pahlad  cry  out, 
and    saw  him  standing  up  and  Panna  Lai 
and  Dial  Das  holding  him  by  the  arms, 
while  Ram  Karan  and  another  man  stood 
by.    He  also  saw   Gobind  Das  with  an  axe 
in  his   band,  and  saw  him  strike  Pahlad  on 
his  face,    Hanhiari  says  he  lay  down  and 
bid  his  face  in  the  razai,  and  then  heard 


[M  1.  0. 192fi, 


RAM  KAIUN  V.  BMPEROft, 


cries  and  sounds  of  blows.  After  a  little 
tfhile  he  raised  his  head  and  looked  round 
and  saw  nobody  in  the  room  except  Pahlad, 
Khacherti,  Shib  Charon,  and  Amar  Singh, 
who  were  lying  ihere.  The  place  was 
covered  with  blood.  He  went  downstairs 
into  the  court-yard,  and  as  he  was  going 
down  heard  some  body  call  out  that  a  man 
was  running  away  and  then  heard  a  voice 
reply  "  Let  him  go  as  it  is  probably 
Hardwari."  He  unchained  the  door,  left 
the  house,  and  went  to  Kundan's  house, 
where  he  went  to  sleep.  The  Sessions 
Judge  has  discussed  Hardwari's  statement 
and  held  it  to  be  unreliable,  and  we  cannot 
agree  with  Mr.  Sawhny's  contention  that 
the  statement  ought  to  have  been  believed. 
Without  going  into  details  we  think  that 
there  are  at  least  three  strong  reasons  for 
rejecting  Hardwares  statement.  Firstly 
it  is  highly  improbable  that  the  murderer 
or  murderers,  who  showed  an  intention  to 
kill  everybody  in  the  house,  would  have 
allowed  Hardwari  to.  escape.  Secondly,  it 
is  incredible  that  Hardwari  would  not 
have  raised  an  outcry  and  that  he  would 
have  gone  quietly  back  to  Kundan's  house 
and  gone  to  sleep  without  saying  a  word 
of  what  had  occurred  (o  any  one.  Thirdly, 
it  is  admitted  that  for  nearly  a  month 
Hardwari,  though  repeatedly  questioned 
about  the  murders,  persisted  in  denying  all 
knowledge  of  them  and  in  denying  that  he 
had  slept  at  Pahlad's  house  on  the  night 
on  which  they  were  committed  It  was  not 
till  the  l8th  June  that  he  told  his  story 
about  having  witnessed  the  murder  of 
Pahlad,  and  that  was  after  being  confronted 
with  Chambeli,  who  had  on  the  previous 
day  made  a  statement  in  which  she  men- 
tioned Hardwares  presence  on  the  night  of 
the  murders.  That  statement  put  Har- 
dwari into  a  very  awkward  position,  for  if 
he  continued  to  deny  having  slept  at  Pah- 
lad's  house  and  seen  the  murders^  he  ran 
the  risk  of  being  prosecuted  himself.  He 
had  to  give  evidence  about  the  murders 
for  his  own  safety.  It  is  obviously  impos- 
sible in  such  circumstances  to  believe  his 
evidence. 

It  remains  to  consider  the  evidence  of 
Chambeli,  on  which  the  convictions  of  the 
appellants  are  based.  Her  statements  were 
recorded  on  three  different  occasions  before 
she  made  her  statement  to  the  Committing 
Magistrate.  Her  statement  was  recorded 
for  the  first  time  on  the  4th  JunebySub- 
liispector  Kahim  Bakhsfc.  9he  was  then 


made  a  detailed 
recorded  by  the 
Another  detailed 
after  that,  viz  ,  on 
Sub-Inspector.  It 


not  capable  of  making  more  than  an  ex- 
tremely  brief  statement,  in  which  she  said 
merely  who  the  murderers  were  and  who 
had  been  present  upstairs,  and  gave  no 
account  of  what  had  happened,  She  was 
questioned  by  the  Superintendent  of  Police 
on  the  ilth  June,  but  no  statement  was  then 
recorded.  Her  condition  from  that  time 
was  steadily  improving,  but  it  was  not  till 
the  17th  June  that  she 
statement,  which  was 
Deputy  Commissioner, 
statement  was  recorded 
the  24- 25th  June,  by  the 
19  necessary  to  point  out  here  a  grave  error 
into  which  the  lower  Court  has  fallen. 
The  statements  made  by  Chambeli  to  the 
Sub-Inspector  of  Police  arfc  relevant  only 
for  the  purpose  of  contradicting  her  present 
testimony,  and  the  statements  made  to 
the  Deputy  Commissioner  and  to  the  Com- 
mitting Magistrate  only  for  the  purpose 
of  contradicting  or  corroborating  that  testi- 
mony (no  order,  it  may  be  noted,  having 
been  passed  for  the  deposition  before  the 
Committing  Magistrate  to  be  admitted  as 
evidence  under  s.  288  of  the  (Jr.  P.  C.). 
But  the  Sessions  Judge  has  treated  all  those 
statements  as  though  they  were  substantive 
evidence  like  the  statement  made  by  the 
witness  at  the  trial,  and  one  consequence 
of  this  error  has  been  that  Dial  Das  has 
been  convicted  although  there  is  no  evi- 
dence against  him  other  than  the  statement 
of  Hardwari  which  the  learned  Judge  him- 
self has  rejected  Chambeli  in  her  evi- 
dence at  the  trial  has  not  mentioned  Dial 
Das  as  having  taken  part  in  the  murders 
or  as  having  been  present  when  they  were 
committed,  and  it  is  apparently  only  on 
account  of  her  having  incriminated  him  in 
two  of  her  former  statements  that  he  has 
been  convicted. 

The  story  told  by  Chambeli  at  the  trial  is 
as  follows:— 

She,  her  children,  and  Ramon  slept  in 
the  dalan,  she  herself  and  the  child  Shanti 
on  one  bed,  and  Anguri  and  Ramon  on  an- 
other. Her  husband  Pahlad  was  out  when 
they  went  to  bed,  but  he  returned  at  about  y 
or  10,  and  his  wife  unchained  the  outer  door 
for  him  and  he  went  upstairs  Shortly 
after  midnight  Chambeli  was  awakened  by 
hearing  her  husband  call  out  "mar  gera" 
She  could  not  see  him  or  the  other  persons 
who  were  upstairs  from  where  she  was. 
She  immediately  went  upstairs.  There  is 
a  balcony  upstairs  which  runs  all  round 


582 


RAM  KARAH  V. 


[92  I.  0. 


court-yard,  and  she  went  along  the  southern 
balcony  past  a  rasoi  to  the  door  of  the 
room  in  which  her  husband  and  the  boys 
were  sleeping,  and  there  she  saw  her  hus- 
band sitting  in  the  room  on  the  floor  bleed- 
ing from  an  injury  on  the  back  of  the 
neck.  Gobind  Das,  whom  Chambeli  calls 
the  Babaji,  was  standing  by  him  and  he 
struck  him  on  the  side  of  the  neck  with 
gandasa  or  an  axe  that  he  had  in  his  hand. 
Chambeli  looked  round  and  then  noticed 
Panna  Lai  standing  on  the  balcony  near  a 
barred  window  of  the  rasoi  and  the  three  ap- 
pellants standing  on  the  western  balcony  in 
front  of  the  room  that  is  over  the  dalan  in 
which  she  had  been  sleeping.  She  reproach- 
ed Panna  Lai  and  then  either  fell  or 
was  pushed  from  the  balcony  into  the 
court-yard  below.  Soon  after  she  had  fallen 
and  while  she  was  still  conscious  the  Babaji 
came  down  and  struck  her  with  the  weapon 
he  had,  and,  she  then  lost  consciousness. 
In  cross-examination,  however,  she  altered 
this  part  of  the  story  and  said  that  she  loat 
consciousness  on  seeing  her  husband  bleed- 
ing and  fell  from  the  balcony,  and  then 
regained  consciousness  and  eat  up  and 
moved  a  foot  or  two  away  from  the  place 
where  she  had  fallen,  and  that  then  the 
Babaji  came  down  and  struck  her  and  she 
again  lost  consciousness. 

Now  there  are  glaring  inconsistencies 
between  this  statement  and  her  previous 
statements.  Even  the  extremely  brief  state- 
ment which  she  made  on  the  4th  June  to 
the  Sub-Inspector  was  inconsistent  with  the 
statement  subsequently  made  at  the  trial 
in  that  it  mentioned  the  Babaji's  chela  as 
one  of  the  murderers  besides  the  Babaji 
himself. 

In  the  statement  which  she  made  to  the 
Deputy  Commissioner  on  the  17th  June 
she  said  that  on  hearing  her  husband's  cry 
she  sat  up  in  bed  and  called  put  to  him. 
There  was  the  sound  of  beating  upstairs 
and  she  could  see  the  Babaji  standing  with 
a  gandasa  in  his  hand.  She  sat  still  for  fear 
of  being  killed.  About  an  hour  after  the 
appellants  and  Panna  Lai  came  on  to  the 
roof,  and  she  then  went  upstairs  and  found 
her  husband  lying  dead,  8he  lost  conscious- 
ness and  fell  down  into  the  court-yard.  Then, 
changing  her  statement  on  this  point,  she 
aaid  she  became  senseless  after  she  had 
fallen  and  thatshe  did  not  know  who  struck 
her,  The  inconsistencies  between  this  state- 
ment and  the  one  made  at  the  trial  are 
patent. 


A  different  story  again  was  related  by 
her  to  the  Sub-Inspector  on  the  *5th  June, 
when  she  said  that  on  her  husband  crying 
out  she  went  upstairs  and  saw  the  Babaji 
and  his  chela  striking  her  husband,  and  the 
appellants  and  Panna  Lai  standing  outside 
on  the  balcony.  She  reproached  Panna  Lai 
and  then  went  downstairs.  She  went  upstairs 
again  and  found  her  husband  lying  dead, 
but  none  of  the  other  men  there.  She  then 
fell  down  from  the  balcony  and  became  un- 
conscious. 

We  think  it  is  impossible  to  place  any 
reliance  on  the  statement  made  by  Cham- 
beli at  the  trial  when  it  is  in  such  hope- 
less conflict  with  her  previous  statements. 
The  Sessions  Judge .  has  recognised  the 
glaring  contradictions  in  her  statements 
and  he  thinks  that  they  are  account- 
ed for  by  the  serious  injuries  which 
she  had  received,  but  we  cannot  agree 
with  him.  We  grant  the  possibility  of 
her  memory  being  at  first  affected  by  the 
injuries  and  of  the  facts  coming  back  to  her 
mind  gradually,  but  though  the  injuiies 
might  thus  account  for  an  event  .being 
omitted  in  one  statement  and  mentioned 
in  a  later  one  they  in  no  way  explain  con- 
tradictions in  the  statements. 

Then  the  learned  Judge  says  that  there 
was  no  reason  for  Chambeli  to  name  inno- 
cent persons  as  murderers.  But  in  the  first 
place  it  is'  clear  from  the  evidence  that 
while  she  was  in  the  hospital  various  per- 
sons came  to  see  her  or  were  put  in  charge 
of  her,  so  that  it  is  not  impossible  that  she 
may  have  been  tutored,  and  her  readiness 
to  act  on  any  hint  that  might  have  been 
conveyed  to  her  in  regard  to  the  murderers 
is  shown  from  her  conduct  on  the  27th 
June  at  a  parade  which  was  held  in  the 
jail  for  the  identification  of  Dial  Das.  The 
note  P.  G.  written  by  Mr.  Gurmukh  Singh 
Mongia,  the  Magistrate  who  conducted 
the  identification,  shows  what  happened. 
Chambeli  completely  failed  to  identify 
Dial  Das  as  she  picked  out  three  other  men, 
one  after  another,  who  were  totally  unlike 
Dial  Das  in  appearance.  The  Magistrate 
then  sat  down  to  write  his  note  with  his 
back  elightly  towards  Chambeli  and  some 
people  began  asking  why  she  had  not  been 
able  to  identify  the  man.  She  then  said, 
while  the  Magistrate  was  writing,  that  she 
could  now  identify  the  man  and  she  pointed 
out  Dial  Das.  In  the  second  place,  even  if 
Chambeli  was  not  actually  tutored,  she 
probably  heard  while  she  was  in  hospital 


[92  I.  O.  1926J  RAM  KARAtf  I'. 

that  the  appellants  were  suspected  of  being 
concerned  in  the  murders  and  had  been 
arrested;  and  she  may  have  thus  become 
impressed  with  the  belief  that  they  were 
guilty  and  have  implicated  them  on  that 
account.  It  is  noteworthy  that  she  has 
improved  her  story  in  regard  to  the  appel- 
lant's complicity  in  the  murders,  for,  while 
according  to  her  statement  of  the  17th  June 
they  appeared  on  the  scene  long  after  her 
husband's  murder,  in  her  evidence  in  Court 
she  makes  out  that  they  were  standing  on 
the  balcony  while  her  husband  was  being 
murdered  in  the  room. 

The  Sessions  Judge  thinks  that  Chanf/beli 
would  not  have  invented  the  story  of  falling 
from  the  balcony  into  the  court-yard  when 
she  could  have  said  that  she  came  down  the 
stairs.  But  the  explanation  that  suggests 
itself  is  that  she  had  to -invent  the  story 
in  order  to  account  for  her  being  found 
lying  wounded  and  unconscious  in  the 
court  yard.  According  to  the  story  told 
in'the  first  detailed  statement  that  she  made, 
viz,  the  statement  of  the  17th  June,  she 
went  upstairs  long  after  her  husband  had 
been  murdered,  and  the  Babaji  was  not 
there  when  she  got  upstairs.  At  all  events 
she  made  no  mention  of  his  being  present 
there  at  the  time  and  if  she  had  mention- 
ed his  presence  she  would  have  been  faced 
with  the  difficulty  of  accounting  for  his  not 
killing  her  on  the  spot  when  he  was  no 
longer  occupied  with  killing  her  husband 
or  the  other  persons  who  were  in  the  room 
with  him.  The  Babaji  not  being  there 
she  could  not  say  that  he  ran  after  her 
down  the  stairs  and  struck  her  down  in 
the  court-yard,  and  she  was,  therefore, 
driven  to  the  necessity  of  saying  that  she 
fell  from  the  balcony  into  the  court-yard 
and  lost  consciousness.  In  her  statement 
of  the  25th  June  she  changed  her  story  and 
said  that  when  she  got  upstairs  she  saw 
her  husband  beiqg  murdered,  and  that  she 
then  came  down  the  stairs.  But  she  had 
to  bring  in  the  story  of  the  fall  which  she 
had  told  to  the  Deputy  Commissioner  on 
the  17th  June,  andjin  order  to  do  this  she 
was  obliged  to  say  that  she  went  upstairs  a 
second  time.  At  the  trial,  however,  she 
denied  having  gone  upstairs  more  than  once 
and  made  out  that  she  lost  consciousness 
on  seeing  her  husband  murdered  and  fell 
dowa  from  the  balcony.  It  is  important  to 
note  in  this  connection  the  discrepancies 
in  her  statements  as  to  whether  she  lost 
consciousness  before  or  alter  the  fall  from 


>ft,  583 

the  balcony,  and  also  a  further  contradic* 
tion  to  be  found  in  her  statement  before 
the  Committing  Magistrate  according  to 
which  she  threw  herself  down  from  the 
balcony  in  despair, 

The  Sessions  Judge  has  referred  to  the 
fact  that  Chambeli  had  a  contusion  on  one 
of  her  knees,  but  that  could  have  been 
caused  by  her  falling  on  the  ground  when 
her  assailan t  struck  : her  in  the  court-yard. 

Apart  from  the  discrepancies  inChambeli's 
statement  the  story  that  she  fainted  and 
fell  from  the  balcony  into  the  court-yard 
is  improbable  for  other  reasons.  One  is 
that  if  she  had  had  such  a  fall,  the  balcony 
being  more  than  12feet  above  the  court-yard, 
she  would  probably  have  had  a  miscarriage 
as  she  was  more  than  six  months  pregnant. 
Another  is  that  the  story  of  her  falling 
from  the  southern  balcony  does  not  explain 
how  she  came  to  be  found  in  the  morning 
lying  unconscious,  not  near  the  southern 
wall  of  the  court-yard  but  in  the  north- 
eastern corner  about  2|  feet  from  the  north 
and  east  walls.  She  says  in  cross-examina- 
tion in  her  evidence  at  the  trial  that  after 
the  fall  she  regained  consciousness  and 
moved  away  a  foot  or  two,  but  this  is  an 
improvement  on  what  she  had  said  before, 
and  besides  she  does  not  say  that  she  moved 
right  into  the  far  corner  of  the  court-yard, 
which,  it  may  be  noted,  is  15  feet  square. 

Then  it  seems  hardly  credible  that 
Chambeli  could  have  reached  the  room 
where  her  husband  was  in  time  for  her  to 
see  what  she  says  she  saw.  Her  husband 
had  received  at  least  one  blow  when  she 
was  awakened  by  his  cry,  and  she  had  to 
cross  the  court-yard,  go  up  the  stairs,  and 
then  go  some  way  along  the  southern 
balcony  to  get  to  the  room.  One  would 
naturally  suppose  that  by  that  time  Pahlad 
would  have  been  despatched,  and  yet  ac- 
cording to  Chambeli  he  had  received  only 
the  wound  at  the  back  of  the  neck  and  was 
sitting  when  she  arrived. 

There  is  another  important  point  also. 
Chambeli  does  not  say  that  she  took  the 
child  Shanti  upstairs  with  her,  and  natural- 
ly she  would  not  have  done  so.  Besides, 
if  she  had  had  the  child  with  her  when 
she  fell  from  the  balcony,  the  child  would 
have  been  injured  by  the  fall,  whereas  she 
had  no  injury  except  the  wound  inflicted 
by  her  mother's  assailant.  The  child  would, 
therefore,  have  been  left  lying  ofe  the  bed  in 
the  dalan,  yet  in  the  morning  she  was  found 
lying  wounded  beside  her  mother  in  the 


581 


KHAM1NI  V.  EMPEROR, 


court-yard.  No  explanation  of  this  is  forth- 
coming on  the  prosecution  theory.  All 
the  facts  are,  on  the  other  hand,  explained 
by  the  defence  theory,  which  is  that  the 
murderer  entered  the  dalan  while  Charnbeli 
and  the  children  were  there,  and  first  at- 
tacked and  murdered  Anguri,  -that  mean- 
while Chambeli  picked  up  Shanti  and  ran 
out  along  with  Ramon  into  the  court- yard, 
that  the  murderer  pursued  them,  struck 
down  Chambeli  in  the  corner  of  the  court- 
yard, and  wounded  her  and  Shanti  and 
then  went  into  the  kitchen  where  Ramon 
had  taken  refuge,  and  killed  her  and  threw 
the  axe  down  beside  her. 

Further  it  appears  to  be  highly  improb- 
able that  the  appellants  would  have  been 
preeent  on  the  balcony  at  the  time  when  the 
murders  were  being  committed.  If,  as  is 
alleged  by  the  prosecution,  they  had  hired 
Gobind  Das  to  murder  Pahlad  and  his 
farnily  they  would  have  surely  taken  care 
not  to  appear  on  the  scene  at  all. 

It  is  argued  for  the  prosecution  that  as 
the  outer  door  of  Pahlad's  house  was 
chained  Qpbind  Das  must  have  been  in- 
troduced into  the  house  by  Piare  Lai 
from  the  roof  of  Piare  Lai's  house.  But 
the  argument  is  based  on  the  assumption 
that  Gobind  Das  had  not  been  sleeping 
in  Pahlad'e  house  on  the  night  of  the 
murders.  Although  Chambeli  professes  to 
have  no  recollection  of  the  Babaji  having 
come  to  the  house  and  slept  there  she 
admitted  before  the  Committing  Magistrate 
that  he  had  slept  there  that  night  on  the 
roof  of  the  upper  storey. 

We  need  not  discuss  the  question  of  the 
possible  motive  for  the  crimes,  but  we 
may  observe  that  it  is  by  no'means  necessary 
that  the  murderer  must  have  been,  as  con- 
tended by  the  learned  Public  Prosecutor, 
hired  by  other  persons  to  commit  them. 

Our  conclusion  for  the  reasons  given 
above  is- that  the  evidence  of  Chambeli  is, 
like  that  of  Hardwari,  absolutely  untrust- 
worthy and  that  there  aye  the  strongest 
reasons  for  disbelieying  her  story,  and  for 
believing  that  she  did  not  go _  upstairs  or 
see  what  happened  upstairs,  tut  thgt  she 
remained  downstairs  in  the  dalan  until 
the  murderer  came  there.  There  is  no  other 
evidence  to  support  the  case  for  the  pro- 
secution. 

We,  accordingly,  accept  the  appeals  of 
Ram  Karan,  Amin  Chand  and  Piare  Lai, 
set  aside  ail  the  convictions  and  sentences 
and  acquit  them,  both  of  the  offences 


{92  L  0. 1926] 

under  ss.  302-149  and  of  those  under  ss.  307- 
149  of  the  Indian  Penal  Code.  Also  under 
s.  376  of  the  Or.  P.  C.,  we  set  aside  •  the 
convictions  of  Dial  Das  for  the  offences 
under  ss  302-149  of  the  Indian  Penal  Code, 
and  the  sentences  of  death 'passed  on  him 
and  acquit  him  of  those  offences.  Further, 
acting  under  the  provisions  of  s.  439  of 
the  Or,  P.  C.,  we  set  aside  the  conviction 
of,  and  the  sentences  passed  on,  Dial  Das 
for  the  offences  under  ss.  307-149  of  the 
Indian  Penal  Code,  and  acquit  him  of  those 
offences, 
z,  c.  Appeal  accepted. 


ALLAHABAD  HIGH  COURT, 

CRIMINAL  REVISION  No.  472  OF  1925. 

August  6,  1925. 

Present:— Mr.  Justice  Kanhaiya  Lai. 

KHAMANI  AND  OTHERS— ACCUSED— 

APPLICANTS 

versus 
EMPEROR— OPPOSITB  f  ARTT.  • 

Penal  Code  (Act  XLV  of  I860),  s.  500— Defamation 
— Degradation  in  caste-  Privilege. 

A  statement  by  the  accused  to  certain  members  of 
the  caste  that  the  complainant  had  become  a  sweeper 
by  reason  of  his  having  shaken  hands  and  associated 
with  sweepers,  is  defamatory  and  i*  not  privileged 
where  it  does  not  represent  the  decision  formally 
arrived  at  by  a  panchayat  held  to  consider  the  matter. 
Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Bareilly,  dated  the  25th 
July  1925. 

Mr.  S.  C.  Das,  for  the  Applicants. 
JUDGMENT. — The    applicants    have 
been  convicted  of  an  offence  under  s.  500  of 
the  Indian  Penal  Code  and  sentenced  to 
pay  a  fine  of  Rs.  51  each  or  in  default 
simple  imprisonment  for  four   months.    It 
appears  that  there  was  a  procession  taken 
out  at  Bareilly  in  November  last  in  which 
various  classes  of  people    including  some 
sweepers  had  joined.    One    of  the  persons 
who  joined    the    procession   was   Mangli 
Prasad  who  belonged  to  the   Bhurji  caste. 
The  three  petitioners   have  been  found  to 
have  told  different  persons  of  the  same  caste 
that  if  they  associated  with   Mangli  Prasad 
they  would  refuse  to  smoke  or  drink  with 
them  as  Mangli  Prasad  had  become  a  sweep- 
er, by  reason  of  his   having  shaken  hands 
and  associated  with  sweepers  in   that  pro- 
cession.   It  is  argued  here  that  the  Trial 
Court  had  no  jurisdiction,  and   that   the 
three  accused  ought  not  to  have  been  joint- 


INDAR  SIKOH  t>,  EMPEROR. 


[&£  I.  0. 1928J 

ly  tried,  but  none  of  these  points  were 
taken  in  the  Courts  below.  If  there  were 
aay  substance  in  these  objections,  they 
would,  undoubtedly,  have  been  urged  in  the 
Courts  below.  It  is  also  stated  that  the 
statements  made  were  not  per  se  defamatory, 
and  that  they  were  made  in  good  faith  and 
were  privileged.  The  imputation  made 
clearly  suggested  that  Mangli  Prasad  was 
not  fit  to  be  associated  with  by  reason  of 
his  having  joined  that  procession  or  shaken 
hands  with  the  sweepers.  It  cannot,  how- 
ever, be  said  that  if  he  had  done  so,  he  had 
thereby  become  a  sweeper,  and  the  effect 
of  the  imputation  must,  undoubtedly,  have 
been  to  lower  his  position  or  character  in 
the  estimation  of  his  caste  fellows.  The 
imputation  would  have  been  privileged,  if 
a  panehayat  of  the  caste  had  been  held  to 
discuss  the  matter,  and  the  decision  arrived 
at  the  panehayat  communicated  to  the  per- 
sons interested  therein,  but  it  has  been 
found  that  there  was  no  panehayat  held  to 
consider  the  matter,  and  no  decision  form- 
ally arrived  at  which  would  give  it  the 
protection  claimed.  One  of  the  witnesses 
deposes  that  all  the  three  accused  joined 
together  in  warning  him  that  if  he  associat- 
ed with  Mangli  Prasad  they  would  refuse 
to  smoke  or  drink  with  him,  as  Mangli 
Prasad  had  become  a  sweeper.  A  joint 
trial  under  these  circumstances  is  not  open 
to  any  objection.  The  application  is  reject- 
ed. 

N  H.  Application  rejectd. 


585 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  449  OF  1925. 

November  13,30,  1925. 

Present  ;— Mr.  Justice  Sulaiman. 

INDAR  SINGH- APPLICANT 

versus 

EMPEROR—QpposiTE  PAKTY. 
Penal  Code  (XLV  of  I860),  s  IflS— Criminal  mis- 
appropriation—Repudiation   of  trust— Sapurddar   of 
attached  property — Failure  to  deliver  property — Cove- 
nant for  delivery  of  price — Civil  liability 

Section  403,  Penal  Code,  is  in  no  way  restricted  to 
appropriating  property  to  one's  own  use  If  a  trustee 
repudiates  the  trust  and  asserts  that  he  now  holds  the 
property  on  behalf  of  a  person  other  than  the  one 
who  entrusted  him  with  it,  he  has  misappropriated 
the  property  just  as  much  he  would  have  been  said 
to  misappropriate  it  if  he  had  been  putting  forward 
his  own  claim  to  it.  [p.  586,  col,  1.] 


When  a  Receiver  attaches  property  and  entrusts  it 
to  some  person  Jie  does  not  purport  to  sell  it  to 
him  or  dispose  "it  of  at  that  time  The  Receiver 
may  not  even  be  m  e  position  to  know  its  true 
value  The  intention  of  the  paities  is  that  the 
articles  should  be  returned  in  specie  or  produced  at 
the  time  when  the  auction  sale  is  to  take  place.  The 
covenant  in  the  sapurdnama,  that  the  person  entrusted 
with  the  property  would  be  liable  to  pay  a  certain 
amount  m  case  "he  fails  to  deliver  the  pioperty,  is 
more  by  way  of  security  than  because  the  property 
is  transferied  to  him  with  hbeity  to  dispose  it  of  or 
withhold  it  In  such  cases  it  is  the  true  intention 
of  the  parties  which  must  be  taken  into  account 
Therefore,  if  the  property  is  not  produced  the  sapurd- 
dar  is  guilty  of  criminal  nusappiopnation  It  is  not 
a  case  of  mere  civil  liability  [p  586,  col  2  ] 

The  mere  fact  that  there  is  a  civil  liability  does 
not  necessarily  absolve  one  from  criminal  liability 
[ibid  ] 

Criminal  revision  from  an  order  of  the 
Additional  Sessions  Judge,  Moradabad, 
dated  the  2 1st  July  1925. 

Mr  M  N.  Rama,  for  the  Applicant 

The  Assistant  Government  Advocate,  for 
the  Crown 

JUDGMENT.— (Wowmier  l\  1925).— 
This  is  a  criminal  revision  from  a  convic- 
tion of  the  accused  under  s  406  of  the 
Indian  Penal  Code.  The  facts  are  as  fol- 
lows • — One  Harbans  was  declared  an  insol 
vent  and  Lala  Ram  was  appointed  Receiver 
of  his  estate  in  January  1925  The  Receiver 
attached  certain  heads  of  cattle  belonging 
to  the  insolvent  and  made  them  over  to  the 
applicant  after  taking  a  sapurdnama  from 
him.  The  Receiver  fiist  fixed  the  13th  Feb- 
ruary for  sale  and  three  days  eaiher  he  sent 
a  notice  to  the  applicant  to  produce  the 
cattle  at  the  place  where  the  auction  was  to 
take  place,  but  the  notice  was  returned 
unserved  and  no  auction  took  place.  On 
this  the  Receiver  fixed  another  date  for  sale 
and  sent  a  fresh  notice  to  the  applicant  but 
even  on  that  date  the  cattle  were  not  pro- 
duced, nor  did  the  applicant  turn  up.  Sub- 
sequently the  Receiver  received  a  notice 
from  the  applicant  to  the  effect  that  the 
cattle  attached  by  the  Receiver  did  not  belong 
to  the  insolvent  but  belonged  to  his  brother 
who  had  filed  an  objection  in  the  Execution 
Court  and  that  the  Receiver  had  no  right  to 
attach  them  The  Receiver  replied^  that  the 
applicant  was  bound  to  produce  the  cattle 
and  he  had  no  right  to  stop  their  produc- 
tion even  if  the  insolvent's  brother  had 
filed  an  objection.  To  this  the  applicant 
replied  that  sapurdnama  was  not  binding 
on  him  and  that  he  in  fact  filed  a  com- 
plaint under  s,  420  of  the  Indian  Penal 
Code  in  respect  of  it.  On  such  reply  being 
received  the  Receiver  with  the  permission 


586 


INDAR  SINGH  V.  EMP8KOR, 


[92 1,  0  1986] 


of  the  Additional  District  Judge  filed  fa 
complaint  out  of  which  this  revision  has 
arisen. 

The  complaint  filed  by  the  accused  under 
s.  420  was  dismissed  summarily  and  he  has 
not  had  that  order  revised.  At  the  trial 
of  the  present  case  the  accused  denied  that 
any  cattle  of  Harbans  had  in  fact  been 
attached  oirhanded  over  to  him  and  he  even 
denied  a  proper  execution  of  the  sapurd- 
nama.  The  Courts  below,  however,  have 
found  these  questions  of  fact  against  the 
applicant.  I  must,  therefore,  assume  that 
the  heads  of  cattle  had  actually  been  attach- 
ed by  the  Receiver  and  made  over  to  the 
applicant,  who  executed  a  sapurdnama  in 
respect  of  them. 

The  learned  Vakil  for  the  applicant 
has  argued,  firstly,  that  no  offence  under 
B.  408  was  committed  as  there  has  been 
no  misappropriation,  and  secondly  that  in 
view  of  a  clause  in  the  sapurdnama  for  the 
payment  of  the  price  of  the  cattle  there  was 
no  criminal  misappropriation. 

The  applicant  has  not  put  the  cattle  to 
his  own  use  nor  has  he  disposed  of  them 
dishonestly.  What  has  happened  is  that 
he  is'holding  them  still  as  trustee,  but  he 
is  denying  that  he  is  holding  them  on  behalf 
of  the  Receiver  from  whom  he  had  taken 
them.  He  now  asserts  that  the  cattle  belong 
to  another  person  on  whose  behalf  he 
holds  them,  Misappropriation  has  not  been 
expressly  defined  in  the  Indian  Penal  Code. 
The  illustrations  to  s.  403  all  relate  to  cases 
where  a  person  appropriates  the  article  to 
his  own  use,  but  the  illustrations  cannot  be 
taken  to  limit  or  narrow  the  scope  of  s.  403 
itself.  It  seems  to  me  that  if  a  person  sets 
apart  an  article  for  the  use  of  another 
person ,  of  which  article  he  is  a  trustee  of 
the  complainant,  he  misappropriates  it  even 
though  hp  has  not  put  it  to  his  own  use. 
Section  403  is  in  no  way  restricted  to 
appropriating  property  to  one's  own  use. 
If  a  trustee  repudiates  the  trust  and  asserts 
that  he  now  holds  the  property  on  behalf 
of  a  person  other  than  the  one  who  entrust- 
ed him  with  it,  he  has  misappropriated  the 
property  just  as  much  he  would  have  been 
said  to  misappropriate  it  if  he  had  been 
putting  forward  his  own  claim  to  it.  The 
applicant  got  possession  of  the  cattle  from 
the  Receiver  and  undertook  to  return  them 
to  the  Receiver.  When  subsequently  he 
repudiated  the  right  of  the  Receiver  to 
attach  the  cattle  and  asserted  that  they 
jreally  belonged  to  the  ipsolyent's  brother 


and  that  he  would  not  hand  them  over  to 
the  Receiverhe  must  be  deemed  t'o  have  com- 
mitted a  misappropriation. 

As  regards  the  second  point  the  relevant 
portion  of  the  sapurdnama  is  as  follows  : — 
"  Whenever  the  Court  or  the  Receiver  de- 
mands the  production  of  the  attached  pro- 
perty I  shall  deliver  the  same  without  objec- 
tion. If  for  any  reason  I  fail  to  deliver  them 
then  I  shall  pay  the  price,  Rs.950  "  The  argu- 
ment of  the  learned  Vakil  for  the  applicant 
is  that  when  it  was  clearly  stipulated  that  in 
case  of  failure  to  deliver  the  cattle  the 
applicant  would  be  liable  to  pay  their  price 
amounting  to  Rs.  950  his  default  cannot 
amount  to  a  criminal  misappropriation,  and 
that  at  best  his  liability  was  only  a  civil 
liability.  But  the  mere  fact  that  there-  is  a 
civil  liability  does  not  necessarily  absolve 
one  from  criminal  liability.  Whea  a  Re- 
ceiver attaches  property  and  entrusts  it  to 
some  person  in  the  village  he  does  not 
purport  to  sell  it  to  him  or  dispose  it  of  at 
that  time.  The  Receiver  may  not  even  be 
in  a  position  to  know  its  true  value. 
The  intention  of  the  parties  is  that  the 
articles  should  be  returned  in  specie  or 
produced  at  the  time  when  the  auction- 
sale  is  to  take  place.  The  covenant  that 
the  accused  would  be  liable  to  pay  a 
certain  amount  is  more  by  way  of  security 
than  because  the  property  is  transferred  to 
him  with  liberty  to  dispose  of  it  or  with- 
hold it.  In  such  cases  it  is  the  true  inten- 
tion of  the  parties  which  must  be  taken 
into  account.  There  can  be  no  doubt  that 
in  this  case  it  could  never  have  been  the 
intention  of  the  Receiver  that  the  property 
attached  should  not  be  actually  produced 
when  the  auction  is  to  take  place.  If  such 
property  is  not  produced  the  insolvent  as 
well  as  the  creditors  may  suffer  for  it  can- 
not be  known  beforeharid  what  actual 
price  would  be  fetched  at  the  sale. 

I  would  dismiss  the  application. 

The  conduct  of  the  accused  has  been  both 
obstinate  and  stupid.  Had  he  returned  the 
heads  of  cattle  when  his  prosecution  began 
it  would  have  been  possible  to  take  a 
lenient  view  so  far  as  the  sentence  is  con- 
cerned, as  the  accused  is  a  very  old  man. 
The  learned  Vakil  for  the  applicant  has 
stated  before  me  that  Hs  client  expressed 
his  readiness  to  deliver  the  heads  of  cattle, 
etc ,  and  that  even  now  he  is  prepared 
to  hand  over  the  same.  If  the  heads  of 
cattle  and  other  articles  were  delivered 


[92  I.  0. 1926] 


WA6 At.  V.  BMPEROR. 


587 


to  the  Receiver  I  would  be  prepared  to  in- 
terfere with  the  sentence.  I  accordingly 
allow  this  case  to  stand  over  for  a  fortnight. 
If  by  that  time  the  cattle,  etc  ,  have  been 
delivered  to  the  Receiver  and  a  duly  sworn 
affidavit  is  filed  before  me  stating  that  the 
delivery  has  been  made,  I  would  reduce  the 
sentence.  Pat  up  for  orders  after  two 
weeks. 

(November  30,  1925).— The  affidavit  of 
Nain  Singh  son  of  Indra  Singh  shows 
that  the  accused  has  returned  to  the  Re- 
ceiver all  the  articles  which  were  entrust- 
ed to  him  except  two  bullocks  which 
have  died  and  that  he  has  paid  to  the  Re- 
ceiver Rs.  130  as  their  price  and  that  an 
addition  he  has  paid  Rs.  300  on  account  of 
the  expenses  and  costs  incurred  in  prosecut- 
ing the  criminal  case.  In  view  of  these 
circumstances  as  indicated  in  my  previous 
order  I  uphold  the  conviction  but  reduce 
the  sentence  to  the  period  already  served. 
The  bail-bond  is  cancelled  and  he  need  not 
surrender, 

N  H.  Application  dismissed. 


LAHORE  HIGH  COURT. 

CRIMINAL  REVISION  No.  330  OP  1925. 

April  17,  1925. 

Present:— Mr.  Justice  Abdul  Raoof. 
WAS  AL— CONVICT— PETITIONER 

versus 

EMPEROR— RESPONDENT. 
Penal  Code  (Act  XLV  of   I860),  s  457— Burglary— 
Conviction  based   on   production   of   non-identifiable 
articles,  legality  of. 

Complainant's  shop  waa  broken  into  and  a  quantity 
of  cotton  aid  some  pieces  of  cloth  were  stolen,  but 
complainant  did  not  furnish  the  Police  with  a  list  of 
the  articles  which  had  been  stolen  Accused  was  seen 
next  morning  in  the  village  carrying  bundles  of  cloth 
He  was  subsequently  arrested  and  produced  a  bag  of 
cotton  and  certain  pieces  of  cloth  of  an  ordinary 
character  which  any  cloth  merchant  might  be  expect- 
ed to  stock  and  sell,  but  which  were  claimed  by  the 
complainant  as  belonging  to  him  * 

Held,  that  the  evidence  against  the  accused  was  of 
an  inconclusive  character  and  was  not  sufficient  to 
support  a  conviction*  under  s.  457  of  the  Penal  Code 

Petition  for  revision  of  an  order  of  the 
Sessions  Judge,  Ferozepur,  dated  the  20th 
January  1925,  affirming  that  of  the  Magis- 
trate, First  Class,  Muktsar,  District  Ferpze- 
J>ore,  dated  the  UtU  December 


Dr.  Nand  Lai,  for  the  Petitioner. 

Mr,  J.  N.  Bhandarit  for  the  Government 
Advocate,  for  the  Respondent, 

JUDGMENT.— On  the  night  between 
llth  and  12th  November  1924  a  burglary  was 
committed  at  the  shop  of  Gurditta.  The 
shopkeeper  came  to  his  shop  in  the  morn- 
ing and  found  that  the  lock  had  been  broken 
open  and  certain  articles  such  as  kapas 
and  a  quantity  of  cloth  were  removed. 
He  lodged  a  First  Information  Report  but 
did  not  produce  a  list  of  the  missing 
articles  as  on  account  of  confusion  in  the 
shop  he  was  unable  to  prepare  a  list.  Three 
persons,  viz.,  Wasil,  Jhaggar  and  Jamal  Din 
were  tried  for  the  offence  and  were  convict- 
ed by  the  Magistrate  under  s.  457,  Indian 
Penal  Code,  Two  of  the  convicted  persons, 
viz.,  Wasil  and  Jamal  Din  appealed  but 
their  appeals  have  been  dismissed  by  the 
learned  Sessions  Judge,  Ferozepore.  One 
of  them,  mz.,  Wasil  has  come  up  in  revision 
to  this  Court.  The  only  evidence  against 
him  is  that  he  produced  a  bag  of  kapas 
and  a  ghara  containing  a  quanity  of  the 
stolen  cloth.  The  recovery  list,  Ex.  P-C, 
contains  the  list  of  the  articles  which  are 
as  follows: — 

1.  White  gabrun  phuldar. 

2.  White  dona  with  green  theka. 

3.  White  gabrun  with  green  stripes, 

4.  Latha  black. 

5.  White  gabrun  with  black  line. 

6.  Latha  white  without  number. 

7.  Latha  white. 

8.  Gabrun  with  lace,  green  coloured, 

9.  Gabrun  with  black  line. 

10.  One  bag  of  kapas. 

These  articles  were  really  incapable  of 
identification.  The  complainant  Gurditta, 
however,  gave  evidence  and  identified  those 
articles  as  belonging  to  him.  Such  articles 
are  of  ordinary  character  and  any  cloth 
merchant  may  stock  them  and  sell  them. 
It  is  impossible  to  say  with  certainty  that 
the  cloth  and  the  kapas  produced  belonged 
to  Gurditta  and  had  been  stolen  from  his 
shop.  The  conviction,  therefore,  cannot  be 
sustained  upon  this  piece  of  evidence.  It 
is,  however,  contended  on  behalf  of  the 
Crown  that  the  three  accused  persons  were 
seen  by  Bhag  Singh,  P.  W.  No.  7,  in  the  early 
morning  shortly  after  the  burglary  some- 
where in  the  village  carrying  bundles  of 
cloth  and  that  this  evidence  coupled  with  the 
evidence  relating  to  the  production  of  the 
articles  proves  the  guilt  of  the  petitioner, 
lam  unable  to  accept  this  coiUejition,  Un* 


BMPBEOR  f .  GULAB. 


less  it  is  established  beyond  all  possible 
doubt  that  the  bundles  contained  the  goods 
stolen  from  the  shop  of  Gurditta  or  that  the 
articles  produced  by  Wasii  were  the  stolen 
property  belonging  to  Gurditta  the  con- 
viction cannot  be  allowed  to  stand.  The 
evidence  against  the  accused  was  wholly 
insufficient  and  inconclusive. 

I,  therefore,  accept  this  petition  for  revi- 
sion, set  aside  the  conviction  of  Wasil  and 
direct  that  he  be  forthwith  released. 

z.  K.  Petition  accepted. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  492  OP  1925. 

August  14, 1925. 

Present : — Mr.  Justice  Kanhaiya,  Lai. 

Tkakur  KA8HI  PRA8AD— AccutRD— 

APPLICANT 

versus 

UMPEROR  THROUGH  RAM  SUNDER— 
OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  s  250— 
Frivolo]^  or  vexatious  complaint -Compensation, 
award  of 

Under  the  Cr  P.  C  of  1898  as  amended  in  1923, 
compensation  can  be  awarded  to  the  accused  when  the 
complaint  is  shown  to  be  false  and  either  frivolous  or 
vexatious  and  it  is  not  necessary  to  show  that  it  is 
both  frivolous  and  vexatious. 

Ram  Singh  v  Mathura,  14  Ind.  Gas.  599,  34  A.  354,  9 
A  L.  J  308,  13  Cr.  L  J,  217,  distinguished. 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Qorakhpur,  dated  the  1st 
June  1925. 

Mr.  Kumuda  Prasad,  for  the  Applicant. 

JUDGMENT.— The  applicant  Kashi 
Prasad  brought  a  complaint  against  the 
opposite  party  which  was  found  to  be  false 
and  brought  on  account  of  enmity.  The 
learned  Trying  Magistrate  ordered  the 
accused  to  pay  Rs.  50  as  compensation.  The 
contention  here  is  that  no  such  compensa- 
tion can  be  awarded  unless  the  complaint  is 
shown  to  be  frivolous  and  vexatious,  and 
reliance  is  placed  on  the  decision  in  the 
case  of  Ram  Singh  v.  Mathura  (1).  That  case 
was,  however,  decided  under  the  old  Or.  P.  C. 
The  alteration  since  made  covers  a  case 
where  the  complaint  is  shown  to  have  been 
false  and  either  frivolous  or  vexatious.  The 
complaint  in  the  present  instance  has  been 
found  to  have  been  false  and  brought  on 
account  of  enmity,  and  s.  250  of  the  Or,  P.  0. 

(1)  lUnd.-Cas.  599;  34  A.  354,  9  A.  L,  J.  308;   13  Or. 
Lr  «J  247, 


t92  1.0. 1926  j 

justified  the  Magistrate  in  awarding  com- 
pensation under  $he  circumstances.  The 
application  is  rejected. 

N.  H,  Application  rejected. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REFERENCE  No.  195  OP  1925. 

September  20,  1925. 
Present:— Mr.  Kennedy,  J.  C.,  and 

Mr.  Tyabji,  A.  J.  0. 
EMPEROR— PROSECUTOR 
versus 

GULAB  AND  ANOTHER— -ACODSED. 
Bombay    Abkan  Act    (V  of     1878),  a.  tf  (1)    (a)— 
Importation    of    foreign  liquor — Punishment^    appro- 
priate. 

On  conviction  under  s.  43  (1)  (a)  of  the  Bombay  Ab- 
kari  Act  the  more  appropriate  form  of  punishment  10 
imprisonment  and  not  line. 

Reference  made  by  the  District  Magis- 
trate, Larkana,  dated  the  21st  August  1925. 

Mr.  C.  M.  Lobo,  Acting  Public  Prosecutor, 
for  the  Crown. 

Mr.  Partabrai  D.  Punwani,  for  the 
Accused. 

JUDGMENT.— The  accused  persons 
were  convicted  under  s.  43  (1)  (a)  of  Act  V 
of  1878.  The  Second  Glass  Magistrate  of 
Labdaria  finding  that  these  two  persons 
had  imported  foreign  liquor  from  Kalat, 
inflicted  upon  each  of  them  a  fine  of 
Rs.  100  or  in  default  to  undergo  rigorous 
imprisonment  for  six  weeks.  This  fine  has 
been  paid. 

The  case  was  referred  here  by  the  District 
Magistrate  of  Larkana  on  the  ground  that 
the  sentence  is  inadequate. 

It  being  necessary  to  ascertain  in  the  first 
place  whether  the  accused  were  .properly 
convicted,  we  are  of  the  opinion  that  it  is 
not  shown  that  Gulab  was  guilty  of  the 
charge,  namely,  that  he  imported  the  foreign 
liquor.  He  was  a  cartman  and  although 
his  behaviour  is  suspicious,  yet  it  by  no 
means  follows  that  even  if  he  was  aware 
that  he  was  committing  an  abkari  offence 
he  imported  the  liquor.  It  is  just  as  possi- 
ble he  may  have  been  removing  this  liq'ior 
from  some  depot  in  British  India  to  some 
depot  in  British  India.  We  think,  it  is 
impossible  to  uphold  his  conviction  of  the 
offence  of  importing  liquor.  We,  therefore, 
act  aside  the  conviction  on  him,  acquit  ana 


[92  I.  0.  1026j  KRISHNA  GOPAlT». 

discharge  him  and  direct  thathis  fine  should 
be  refunded. 

As  regards  the  question  of  AH  Mardan, 
we  are  not  inclined  to  set  aside  the  finding 
of  the  lower  Court.  It  seems  clear  enough 
that  this  accused  ran  away  as  soon  as  chal- 
lenged. This  indicates  that  he  had  a  guilty 
knowledge  ate  to  what  the  cart  contained. 
The  natural  inference  is  that  he  had  been 
the  importer  for  some  time.  And  if  that  infer- 
ence is  incorrect  it  is  for  him  to  say  how  and 
under  what-  circumstances  he  came  into 
the  possession  of  the  liquor.  We  think, 
therefore,  his  conviction  is  right. 

We  are  of;  the  opinion  that  fine  is  an 
inappropriate  sentence  in  a  case  like  this. 
If  the  convict  is  a  poor  man,  it  means  a 
great  and  excessive  hardship  not  only  to 
himself  but  also  to  his  family.  But  as  a 
general  rule,  the  fine  is  very  little  deterrent 
because  it  is  clear  when  importation  on  so 
large  a  scale  as  in  the  present  case  takes 
place,  there  must  be  some  wealthy  men  be- 
hind it  who  are  well  able  to  pay  fines  in 
order  to  secure  services  of  poor  men.  The 
only  chance,  therefore,  of  depriving  such 
confederates  of  the  services  of  their  willing 
agents  is  to  inflict  punishment  on  these 
agents  which  cannot  be  lightened  by  any 
act  of  their  principals  Therefore  it  seems 
to  us  that  in  such  cases  the  more  appro- 
priate form  of  punishment  is  one  of  im- 
prisonment. And  the  present  case  seems 
to  be  paiticularly  a  flagrant  case. 

On  the  whole,  therefore,  we  enhance  the 
sentence  passed  by  the  Second  Class  Magis- 
trate, Labdaria  and  under  s.  43  <1)  (a) 
sentence  Ali  Mardan  to  three  months'  rigor- 
ous imprisonment.  The  fine,  if  paid,  to 
be  refunded. 


Z.  K. 


Sentence  enhanced 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  APPEAL  No  697  OF  1925. 

November  10,  1925, 
Pvesent;— Mr.  Justice  Daniels. 
KRISHNA  QOPAL— ACCUSED-- 
APPLICANT 

versus 

EMPEROR— OPPOSTITB  PARTY. 
Arms  Act  (XI  of  1878),  s.  19  (t)— Illegal  possession 
o/  arms—  Arms  found  in  room  attached  to  office  fre- 
quented by  many  people — Lessee,  whether  in  possession 
The  upper  storey  of  a  house  used  as  the  office  of 
a  certain    Society,    which  was  rented  in  the  name 
of  the  accused,  was  raided  by  the  Police  and  a  pistol 
and  a  certain  number  of  cartridges  were  found  at  the 
bottom  of  a  grain  bin  in  a  room  at  the  back  of  the 
Wtaaen  which  had  no  doors,    The  accused  waa  not 


53d 

present  at  the  time  of  the  search,  but  three  other 
members  of  the  Society,  to  one  of  whom,  the  key  of 
the  house  had  been  made  over  by  the  accused,  were 
present 

Held,  that  it  could  not  be  eaid  that  it  had  been 
proved  beyond  leasonable  doubt  that  the  pistol  and 
cartridges  weie  in  the  possession  of  the  accused 

Criminal  appeal  from  an  order  of  the 
Sessions  Judge,  Jhansi,  dated  the  19th 
August  1925 

Dr.  N.  C.  Vaish,  for  the  Applicant. 

The  Government  Pleader,  lor  the  Crown. 

JUDGMENT.— In  this  case  Krishna 
Gopal  Sharma  has  been  convicted  of  an 
offence  under  s.  19  of  the  Arms  Act.  The 
upper  storey  of  a  house  at  Jhansi  forming 
the  Local  Congress  office  was  raided  by 
the  Police  on  3 1st  May  last  and  a  Mauser 
pistol  and  64  cartridges  were  found  in  the 
bottom  of  a  grain- bin  in  a  room  at  the 
back.  The  loom  was  behind  the  kitchen 
and  had  no  doors.  The  upper  storey  was 
rented  in  the  name  of  the  accused.  The 
accused,  however,  was  not  present  at  the 
time,  and  it  is  said  that  he  had  gone  to 
Cawnpore  five  days  before  At  the  time  of 
the  raid  the  key  was  in  possession  of 
Ajodhya  Prasad  to  whom  the  accused  had 
handed  it  over.  There  were  two  other 
members  of  the  Local  Congress  present  in 
the  upper  storey  at  the  time  of  the  search. 
It  is  further  in  evidence  that  the  particular 
room  in  which  the  pistol  and  cartridges 
were  found  has  no  doors  to  it.  The  ques- 
tion is  whether  this  is  sufficient  to  prove 
beyond  reasonable  doubt  that  the  pistol  and 
cartridges  were  in  the  possession  of  the 
accused.  It  does  not  seem  to  me  that  it  is. 
The  evidence  does  not  exclude  a  reason- 
able possibility  of  a  pistol  having  been 
placed  there  by  some  other  of  the  persons 
who  frequented  the  looms  or  even  by 
Ajodhya  Piasad  in  whose  possession  they 
were  at  the  time.  The  learned  Sessions 
Judge  has  felt  the  difficulty,  and  the 
circumstance  which  he  considers  decisive 
is  that  .some  days  afterwards  the  accused 
was  arrested  in  possession  of  a  revolver 
with  cartridges  of  the  same  brand  as  those 
found  in  the  Congress  rooms.  Even  this, 
however,  is  not  to  my  mind  decisive,  unless 
it  is  shown  that  the  cartridges  were  of  a 
peculiar  kind  such  as  no  other  frequenters 
of  the  Congress  rooms  was  likely  to  have. 
It  might  easily  be  that  more  than  one 
person  frequenting  these  rooms  was  in  pos- 
session of  unlawful  arms  and  that  the  type 
of  cartridge  used  by  both  of  them  was  the 
same.  The  case  is  one  of  some  difficulty, 
but  the  evidence  is,  in  my  opinion,  not 


590 


EMPEROR  V.  GHULAM  MOHAMMAD, 


[92  I.  0.  l92*| 


quite  sufficient  to  bring  home  the  posses- 
sion of  the  unlicensed  arms  to  the  accused. 
I,  therefore,  accept  his  appeal  and  set  aside 
the  conviction  and  sentence  in  this  case, 
z.  K,  Appeal  accepted. 


BIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REVISION  APPLICATION  No.  202 

OF  1925. 

September  21,  1925. 
Present: — Mr.  Kennedy,  J.  0.,  and 

Mr.  Tyabji,  A.  J;  C. 
L.  A,  MORRISON— APPLICANT 

versus 
H.  M.  OROWDER  AND  OTHERS— OPPONENTS. 

Criminal  Procedure  Code  (Act  V  of  Iti98)>  ss.  202, 
1+S9 — Refusal  to  issue,  process — Revision— Notice  to 
accused,  whether  necessary. 

It  is  not  obligatory  on  a  Superior  Court  to  give  any 
notice  to  a  person  against  whom  a  Magistrate  has 
refused  to  issue  process  under  s  202  of  the  Cr  P  C., 
when  proceedings  are  being  taken  to  revise  that  order. 

Application  to  revise  an  order  of  Mr. 
Raymond,  A.  J.  0.,  dispensing  with  notice 
of  a  revision  application  against  an  order 
of  the  City  Magistrate,  Karachi. 

Mr.  D.  N.  0 'Sullivan,  for  the  Applicant. 

Mr.  Motiram  Idanmal,  for  the  Opponents. 

Mr.  C.  M.  Lobo,  Acting  Public  Prosecutor, 
for  the  Crown. 

JUDGMENT.— In  this  caseoneCrowder 
brought  a  serious  accusation  against  one 
Morrison  in  the  Court  of  the  City  Magistrate, 
Karachi.  The  City  Magistrate  held  an  in- 
vestigation, apparently  under  s.  202,  Cr.P.C., 
and  as  a  result  of  that  enquiry  came  to  the 
conclusion  that  he  should  not  issue  process. 
It  is  not  necessary  for  the  purposes  of  the 
present  application  to  make  any  remark  as 
to  the  expediency  of  the  procedure  adopted, 
and  far  less  the  propriety  of  the  order. 
Crowder  being  dissatisfied  with  that  order 
has  made  a  revisional  application  on  the 
{Sessions  Court  side  which  came  up  before 
my  brother  Raymond,  A.  J.  C.  Raymond, 
A.  J.  C.,  admitted  this  application  to  a 
regular  hearing  and  directed  issue  of  a 
notice  to  Morrison.  Shortly  after  that  order 
the  complainant  having  represented  to  the 
Court  that  Morrison  is  no  longer  in  India, 
the  Court  directed  notice  to  be  dispensed 
with.  And  it  is  this  order  that  the  appli- 
cant Morrison  now  seeks  to  set  aside. 

There  is  nothing  in  the  Code  to  make  it 
necessary  for  a  Superior  Court  to  give  any 
notice  to  any  person  against  whom  a  Magis- 


trate has  refused  to  issue  process  under 
s,  20J,  when  proceedings  are  being  taken 
to  revise  that  order.  It  is  obvious  that 
although  one  Magistrate  may  refuse  to  issue 
process  another  Magistrate  may  do  so  and 
process  may  thus  be  issued  without  the 
necessity  of  upsetting  the  order  of  thg  first 
Magistrate.  It  would  be  impossible  to 
artest  any  criminal  if  we  accept  the  view 
that  once  any  Magistrate  has  refused  to 
issue  process  that  is  to  give  such  criminal 
immunity  from  all  processes  for  ever.  No 
doubt  notice  is  generally  given  when  it  is 
proposed  to  upset  an  order  under  s.  202  but 
that  is  mere  matter  of  convenience  and  of 
equity.  It  is  in  no  way  obligatory  for  the 
Court  so  to  issue  notice. 

The  order  of  Raymond,  A.  J.  0.,  therefore, 
dispensing  to  issue  of  notice  was  a  perfect* 
ly  good  order  in  the  circumstances  and  was 
made  on  due  cause  shown,  it  being  repre- 
sented to  him  that  the  opponent  had  left 
India.  The  circumstances  which  made  it 
appear  that  it  was  difficult  to  serve  notice 
rendered  it  very  undesirable  to  delay  the  en- 
quiry until  notice  had  been  issued. 
We,  therefore,  dismiss  this  application, 
z.  K.  Application  dismissed. 


LAHORE    HIGH  COURT. 

CRIMINAL  MISCELLANEOUS  CASE  No.  58 

OF  1925. 
March  3, 1925. 

Present;— Justice  Sir  Henry  Scott- 
Smith,  KT. 
EMPEROR— APPLICANT 

versus 

GHULAM  MOHAMMAD  AND  OTHERS— 
ACCQSED. 

Criminal  Procedure  Code  (Act  V  of  1898),  sst  1>9?> 
ItOS— Bail—Policy  of  law. 

The  policy  of  the  law  is  to  allow  bail  in  case  of 
under-trial  prisoners  rather     than  to  refuse  it, 

It  is  no  ground   for  refusing  bail    that   to  grant  it 
would  prejudice  the  case. 

Mr.  Petman,  for  the  Accused. 
ORDER, — I  have  seen  the  record  and 
do  not  consider  that  the  case  is  of  such  a 
serious  nature  that  bail  should  be  refused. 
The  only  reason  given  by  the  Magistrate 
for  refusing  bail  is  that  to  grant  it  would 
be  prejudicing  the  case.  This  is  not  cor- 
rect. The  present  policy  of  the  law  is  to 
allow  the  bail  in  the  case  of  under  trial 
prisoners  rather  than  to  refuse  it. 

Accused  may  be  released  on  bail  with, 
one  surety  each  in  Rs.  500. 

z,  K,  Order  accordingly. 


[92  L  0. 


KALAP  NAtH  t>. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REFERENCE  No.  647  OP  1925. 

November  18,  1925. 
Present: — Mr,  Justice  Daniels. 
EMPEROR— PROSECUTOR 

versus 

Musammat  KE8AR—  ACCUSED — 
OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  8  562— 
Penal  Code  (Act  XLV  of  lS60)t  8  300— Attempt  to  com- 
mit suicide— Release  on  security— Revision— Order, 
whether  can  be  set  aside. 

Section  562  (3),  Or.  P.  C.,  empowers  the  High  Court 
in  the  exercise  of  its  powers  of  revision  to  set  aside 
an- order  under  s.  562  and  substitute  a  sentence  of 
imprisonment 

An  attempt  to  commit  suicide  should  not  be  treated 
lightly. 

Criminal  reference  made  by  the  District 
Magistrate,  Jhansi,  dated  the  14th  of  Octo- 
ber 1925. 

REFERRING  ORDER.— In  the  case 
of  Emperor  v.  Musammat  Kesar,  under 
B.  309  of  the  Indian  Penal  Code,  the  Magis- 
trate convicting  the  accused  has  dealt  with 
the  case  under  the  provisions  of  s.  562,  Cr. 
P.  C.,  and  taken  security  from  her  for  her 
appearance  if  called  on  within  one  year. 

It  is  proved  that  the  accused  jumped  into 
a  well  merely  in  consequence  of  a  quarrel 
with  a  woman  neighbour  in  which  abuse 
only  was  exchanged.  The  Magistrate  consi- 
ders that  her  object  was  to  cast  ignominy  on 
the  person  she  had  quarrelled  with, 

I  consider  that  no  adequate  punishment 
has  been  awarded  and  that  the  law  has  not 
been  vindicated. 

There  is  an  increasing  tendency  among 
Magistrates  to  avoid  punishing  attempts  of 
suicide.  The  law  is  clear  but  it  is  rapidly 
becoming  a  dead  letter.  If  s,  309  is  to  be 
retained  it  must  be  enforced,  and  I  feel  that 
if  it  is  to  be  enforced  a  pronouncement  is 
required  from  higher  authority  than  mine. 

I,  therefore,  refer  this  case  to  the  Hon'bla 
High  Court  for  orders.  I  have  selected  it 
for  reference  because  there  can  be  no  plea 
for  the  accused  that  she  acted  in  desperation 
induced  by  suffering  or  shame. 

The  Magistrate  will  make  such  representa- 
tion in  support  of  his  judgment  as  he  may 
wish. 

Dr.  N.  C.  Vaish,  for  the  Opposite  Parly. 

JUDGMENT.—For  the  reasons  given 
by  the  District  Magistrate  I  accept  this  Re- 
ference and  substitute  a  sentence  of  fourteen 
days  simple  imprisonment  for  the  order 
under  B.  562  of  the  Cr.  P.  C,  passed  by  the 
Court  below,  Dr,  Vaieh  for  the  applicant 


has  referred  me  to  a  ruling  of  the  year  1914, 
Emperor  v  Ghasite  (I),  in  which  it  was  held 
that  the  only  procedure  open  to  the  High 
Court  in  such  a  case  was  to  order  a  ic- trial. 
The  law  has  since  been  amended,  and  s  562, 
sub-s  (3),  empowers  the  High  Court  in  the 
exercise  of  its  powers  of  revision  to  set 
aside  an  order  under  e».  562  and  substitute  a 
sentence  of  imprisonment. 
z  K.  Reference  accepted. 

(1)  26  Ind.  Gas   635,  37  A    31,  12  A.  L,  J,  1244,   16 
Cr.  L  J.  43, 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REFERENCE  No.  540  OP  1925, 

December  1,  1925. 

Present: — Mr.  Justice  Sulaiman. 

KALAP  NATH— -ACCUSED-— APPLICANT 

versus 
EMPEROR— OPPOSITE  PARTY. 

Police  Act  (V  of  1861),  8  Sff  (4)~ Supplying  uater 
to  public  and  receiving  tips— Water,  whether  "exposed 
for  sale  " 

A  person  who  sets  up  a  chauki  (wooden  board)  with 
an  earthen  jar  filled  with  water  on  a  public  place  and 
supplies  water  to  all  those  who  want  it,  cannot  be 
said  to  expose  the  water  for  sale  within  a  34  (4;  of 
the  Police  Act,  meiely  because  sometimes  some  of 
the  persons  who  take  water  do  voluntarily  give  tips 
to  him 

The  expression  "exposes  for  sale"  in  s  34  (4),  Police 
Act,  implies  that  every  person  who  takes  any  quantity 
of  the  thing  exposed  has  to  pay  for  it. 

Criminal  reference  made  by  the  Sessions 
Judge,  Benares,  dated  the  27th  July  1925 

REFERRING  ORDER.— The  appli- 
cant, Kalap  Nath,  has  been  convicted  by  a 
Magistrate,  First  Class  of  Benares,  under 
s.  34,  cl.  (4)  of  Act  V  of  1861  and  sentenced  to 
a  fine  of  Re  1  or  in  default  to  undergo  one 
day's  simple  imprisonment  till  the  using 
of  the  Court.  The  case  was  tried  summarily 
by  the  Magistrate.  The  applicant  has  come 
in  a  revision  challenging  the  propriety  of 
the  conviction  both  on  facts  and  law. 

The  accused  was  charged  and  convicted 
under  s.  34  (4)  of  Act  V  of  1861.  This  sec- 
tion provides  that  any  person  who  commits 
any  of  the  offences  mentioned  thereafter  to 
the  obstruction,  inconvenience  and  annoy- 
ance, risk,  danger  or  damage  of  the  residence 
or  of  the  passengers  is  punishable  under 
that  section.  In  cl.  (4)  of  the  Act  is  mention- 
ed as  "any  person  who  exposes  any  goods 
for  sale11.  In  the  present  case  it  was  alleged 
that  the  accused  had  kept  a  chauki  with  an 
earthen  jar  over  it  and  was  supplying 
water  to  those  who  wanted  it,  and  that  it 
was  on  the  public  road.  On  the  side  of 


'592  jtALAfr  NATH  t>. 

prosecution,  was  examined  one  Muhammad 
Hafiz,  Head  Constable,  who  took  the  accused 
to  the  thana.  In  his  evidence  he  did  nob 
mention  that  the  water  was  being  supplied 
for  price  paid.  There  was  no  other  evidence 
to  show  that  the  water  was  exposed  for  sale 
and  unless  this  fact  was  proved  the  accused 
could  not  be  convicted.  The  Trying  Magis- 
trate has  come  to  an  erroneous  finding  on 
this  point  and  his  reasonings  are  peculiar 
and  illogical.  One  of  the  accused's  witnesses 
Baijnath  Prasad  Vyas,  happened  to  state, 
"sometimes  Brahmans  who  supply  water 
get  some  alms1'.  The  Trying  Magistrate 
referring  to  this  portion  of  the  evidence 
jumped  to  this  conclusion  "Brahmans 
supplying  water  at  pausara  get  alms'1. 
Later  on  he  remarked  in  the  judgment  "his 
statement  that  pausarawalas  get  alms  is 
true.  Therefore  though  the  water  over  the 
chauki  was  not  technically  exposed  for  sale 
the  idea  is  that  alms  should  be  given  in 
return  for  the  drink  which  amounts  to  much 
the  same  thing".  I  am  unable  to  follow  the 
logic  of  the  reasoning  as  it  cannot  be  said 
by  any  stretch  of  language  that  the  water 
was  exposed  there  for  sale.  The  witness 
had  made  a  general  statement  that  some- 
times Brahmans  who  supply  water  get  some 
alms  which  does  not  mean  that  the  appli- 
cant was  selling  water.  It  was  proved  that 
he  was  employed  by  a  lady  to  supply  water 
during  the  hot  month  of  May  which  is 
usually  done  by  Hindus  who  consider  it  a 
maritorious  act  to  supply  water  to  those 
who  require  it.  The  water  is  never  sold. 
If  the  man  who  supplies  the  water  happens 
to  be  a  Brahman  it  is  quite  possible 
that  some  of  those  whs  drink  water  may 
sometimes  give  him  something  as  alms. 
But  that  fa<st  alone  would  not  convert  the 
free  supply  of  water  into  one  for  sale.  It  is 
also  very  doubtful  whether  the  pausara  was 
installed  on  a  public  road  and  there  is 
nothing  to  refute  the  defence  evidence  that 
it  did  not  obstruct  the  way  of  the  passers- 
by  and  that  the  pausara  was  adjacent  to  a 
well  at  the  place  where  it  had  been  main- 
tained during  the  previous  years.  Even  if 
the  pausara  was  kept  on  the  public  way  the 
accused  could  not  be  convicted  of  an  offence 
under  s.  34,  cl.  (4)  of  the  Police  Act  unless  it 
was  proved  that  the  water  was' exposed  for 
sale.  He  may  be  guilty  of  an  offence  under 
some  other  Act  but  not  under  s.  34  of  the 
Police  Act.  There  is  absolutely  no  evidence 
that  the  water  was  exposed  for  sale  and 
the  finding  of  the  lower  Court  is  entirely 


[92 1.  0. 1926J 

erroneous.  The  conviction  of  the  applicant 
was  improper  and  although  the  matter  is 
trifling  but  I  think  in  the  ends  of  justice 
the  conviction  should  be  quashed. 

ORDER— Under^s.  438  of  the  i  Or.  P.  C. 
I  report  the  case  for  the  orders  of  the 
Hon'ble  High  Court  with  the  recommenda- 
tion that  the  conviction  may  be  set  aside. 
The  record  will  be  submitted  to  the  Hon'ble 
High  Court  with  such  explanation  as  the 
Trying  Magistrate  may  like  to  offer. 

Mr.  P.  L.  Banerji,  for  the  Applicant. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT.— This  is  a  Reference  by 
the  Sessions  Judge  of  Benares  recommend- 
ing that  the  conviction  and  the  sentence 
passed  on  the  accused  under  s.  34  (4)  of  Act 
V  of  1861  should  be  set  aside.  The  ac- 
cused is  apparently  a  servant  of  some  lady 
who  deputed  him  to  supply  water  to  all  who 
wan  ted  it  at  a  public  place.  He  set  up  a 
chauki  (wooden  board)  with  an  earthen  jar 
filled  with  water  over  it  and  supplied  water 
to  all  those  who  wanted  it.  According  to 
the  order  of  the  Judge  it  is  not  clear 
whether  this  board  was  set  up  on  a  public 
way  nor  is  it  clear  whether  it  obstructed  the 
way  of  the  passer-by.  But  it  is  not  disputed 
that  it  was  set  upon  a  public  open  space. 
Although  sometimes  some  of  the  persons 
who  took  water  did  voluntarily  give  tips,  it 
is  difficult  to  say  that  water  was  actually 
exposed  for  sale  within  the  meaning  of 
sub-cl.  (4)  of  the  section.  The  expiession 
'exposes  for  sale1  implies  that  every  person 
who  takes  any  quantity  of  it  has  to  pay  for 
it.  This  obviously  is  not  what  used  to 
happen.  The  witnesses  have  merely  stated 
that  'sometimes  Brahmans  who  supply 
water  get  some  alms'.  This  does  not  show 
that  the  water  which  is  supplied  is  exposed 
for  sale.  All  that  1  have  to  decide  in  this 
case  is  whether  an  offence  under  s.  34  (4) 
was  committed.  In  holdiog  that  no  such 
offence  was  committed,  I  am  by  no  means 
suggesting  that  the  accused  was  not  guilty 
of  any  other  offence  under  some  other  Acfc, 
nor  am  I  suggesting  that  he  was  in  any  way 
justified  in  occupying  a  part  of  the  public 
ground  in  the  way  he  did.  I  accordingly 
accept  the  Reference  and  setting  aside  the 
conviction  and  sentence  passed  on  the 
accused  acquit  him  of  the  offence  with 
which  he  was  charged.  I  direct  that  the 
fine,  if  paid  be  refunded. 

N,  H.  Reference  accepted. 


I.  0.  192$]  TADHPALLI  S&BBA  RAO  V  MOTAMARI 


593 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE  No    107 

OF  1923. 

June  24,  1925. 

Present : — Mr.  Justice  Cumin g  and 

Mr.  Justice  Chakravarti. 

BASHIRULLA  BHU1YA  AND  OTHBBS— 

PLAINTIFFS— APPELLANTS 

versus 
ME  A  JAN  AND  OTHERS — DEFENDANTS  — 

KESPONDENTS. 

Contract  Act  (IX  of  1872),  ss  16,  7J>— Landlord  and 
tenant— Kabuhyat— interest,  high  rate  of— Undue 
influence — Penalty 

In  the  absence  of  any  evidence  that  at  the  time  when 
a  kabuliyat  was  executed,  the  landloid  exercised  undue 
influence  over  the  tenant  and  that  the  lattei  was  not  a 
free  agent,  the  landlord  is  entitled  to  recovei  interest  on 
arrears  of  rent  at  the  rate  stipulated  m  the  kabuliyat 

Appeal  against  a  decree  of  the  District 
Judge,  Noakhali,  dated  the  19th  of  June 
1922,  affirming  that  of  the  Munsif,  First 
Court  at  Lakshmipore,  dated  the  24th  of 
June  1920. 

Babu  Nagendra  Nath  Chaudhury,  for 
the  Appellants. 

Babus  Hem  Kumar  Bose  and  Biraj 
Mohan  Majumdar,  for  the  Respondents, 

JUDGMENT. 

Cumlng,  J,— In  the  suit  out  of  which 
this  appeal  has  arisen  the  plaintiffs  sued  the 
defendants  for  recovery  of  arrears  of  rent 
and  cesses  alleged  to  be  due  for  the  years 
1323  to  1325  for  a  certain  howl*  jama 
at  an  annual  rent  of  Rs.  9-9  0  with  interest 
at  the  rate  of  75  per  cent,  per  annum  under 
a  registered  kabuhyat  dated  the  1290  B.  S. 
corresponding  to  1884. 

The  Court  of  first  instance  decreed  that 
plaintiffs1  suit  as  against  defendants  Nos.  3 
and  6  on  contest  and  ex  parte  against  the 
other  defendants  at  the  rate  of  Rs.  9-9  0  per 
annum  inclusive  of  cesses  with  damages  at 
the  rate  of  Rs.  25  per  cent,  fie  did  not 
allow  interest  at  the  rate  of  Rs.  75  per  cent. 
per  annum  as  claimed  by  the  plaintiffs.  The 

¥laintiffs  appealed  to  the  District  Court, 
hat  Court  held  that  cesses  were  included 
in  the  rent,  and  it  further  held  that  the 
plaintiffs  were  not  entitled  to  interest  at  the 
rate  of  Rs.  75  per  cent  per  annum  on  the 
ground  that  the  stipulation  to  pay  interest 
at  the  rate  of  Rs.  75  per  cent,  per  annum  was 
entered  iu  the  kabuliyat  as  a  threat  to 
ensure  punctual  realization  of  the  rent  and 
on  this  ground  he  dismissed  the  appeal. 

The  plaintiffs  have  appealed  to  this  Court 
on  the  question  of  interest.  They  contend 
that  they  are  entitled  to  the  interest  at  the 

38 


kabuhyat  rate,  that  unless  the  defendants 
can  show  that  the  parties  did  not  contiact 
on  equal  terms  or  that  one  party  was  in  a 
position  to  exercise  undue  influence  over 
the  other  and  took  unfair  advantage  of  the 
other  they  are  entitled  to  the  mteiest  at  the 
kabuliyat  rate. 

I  think  the  appellants  are  entitled  to 
succeed.  No  attempt  has  been  made  by 
the  defendants  to  prove  that  at  the  time 
when  the  contract  was  entered  into  the 
plaintiffs  were  in  a  position  to  dominate 
the  defendants  and  to  exercise  undue 
influence  over  them  to  induce  them  to  enter 
into  the  contract,  and  that  the  defendants 
were  not  free  agents  in  entering  into  the 
contract.  The  defendants  having  failed  to 
prove  this  the  plaintiffs  are  clearly  entitled 
to  the  interest  at  the  rate  stated  in  the 
kabuhyat. 

The  appeal  is,  therefore,  decreed  and  the 
decree  of  the  lower  Appellate  Court  is 
modified  to  this  extent  that  the  plaintiffs 
are  entitled  to  interest  at  the  rate  of  Rs.  75 
per  cent,  per  annum  down  to  the  date  of  the 
institution  of  the  suit  in  the  place  of  the 
damages  at  the  rate  of  Rs  25  per  cent,  as 
allowed  by  the  lower  Appellate  Court. 

The  appellants  are  entitled  to  the  costs 
of  this  appeal  and  the  proportionate  costs 
in  the  two  lower  Courts. 

Chakravarti,  J.— I  agree. 


Z.  K. 


Appeal  allowed: 
Decree  modified^ 


MADRAS  HIGH 

APPEAL  AGAINST  ORDER  No.  338  OP  1923. 

September  30,  1924. 
Present. — Mr.  Justice  Ramesam  and 

Mr  Justice  Jackson 
TADEPALLI 8UBBA  RAO- 
DEFENDANT  No.  1 — APPELLANT 

versus 
MOTAMARI  LAKSHMINARAYANA 

AND  ANOTHER — PLAINTIFFS — RESPONDENTS. 

Execution  oj  decree — Mortgage-decree — Sale  of  pro* 
per  ties,  01  der  of—  Mortgagee,  ?  ight  of. 

A  mortgagee  decree-holder  is  entitled  to  bring  the 
moitgaged  properties  to  sale  m  execution  of  his  decree 
in  any  oider  he  chooses  whatever  his  motives  may  be. 
Jt  is  immaterial  to  his  rights  that  the  mortgagor  had 
since  the  mortgage  sold  one  of  the  mortgage4 
perties  to  some  third  person, 


594 


00NNABATHTJLA  THAMMAYYA  4> 


Appeal  against  an  order  of  the  District 
Court,  Kistna,  at  Masulipatam,  in  E  P. 
No.  24  of  1923,  in  0.  S.  No.  21  of  1921,  on 
the  file  of  the  Court  of  the  Subordinate 
Judge,  Masulipatam. 

PACTS. — The  plaintiff,  a  mortgagee 
decree-holder,  applied  by  petition  for  exe- 
cution of  his  decree  and  prayed  that  a 
proclamation  for  sale  maybe  issued  in  res- 
pect of  the  mortgaged  immoveable  proper- 
ties under  0.  XXI,  r.  66,  C.  P.  C.,  and  that 
they  should  be  sold  in  a  particular  order 
and  the  amount  collected  and  paid  to  the 
plaintiff.  Objection  was  raised  for  the 
judgment-debtor  that  the  first  item  which 
he  had  sold  away  ought  to  be  sold  first, 
but  the  Court  directed  the  sale  of  the 
properties  in  the  order  in  which  decree- 
holder  desired.  The  judgment-debtor  ap- 
pealed. 

Mr.  P.  Somasundaram,  for  the  Appel- 
lant. 

Messrs.  T.  Ramachandra  Row  and  S, 
Subramanya  Sastrit  for  the  Respondents. 

JUDGMENT.—Assuming  an  appeal 
lies  which  is  doubtful,  we  cannot  interfere 
with  the  order  of  the  Court  below.  The 
mortgagee  is  entitled  to  bring  the  proper- 
ties to  sale  in  any  order  he  chooses.  We 
cannot  scrutinise  his  motives  and  even  on 
'  the  allegation  of  the  appellant,  there  is 
nothing  improper  in  those  motives.  The 
mortgagee  cannot  be  in  a  worse  position 
as  to  his  rights  because  one  of  the  mort- 
gagor's properties  has  been  purchased  by 
some  other  person.  The  appeal  is  dismiss- 
ed with  costs  of  first  respondent. 


Appeal  dismissed. 


N.  H. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  51  OP  1923. 

September  4, 1925. 

Present: — Mr.   Justice  Odgers. 

GONNABATHULA  THAMMAYYA,  BEING 

MINOR  BY  HIS  NATURAL  FAlHBR  AND   NEXT 

FRIEND  GONNABATHULA  AUDEYYA 
— PLAINTIFF— APPELLANT 

versus 
GONNABATHULA  CHIN NAY YA 

AND   OTHERS— DEFENDANTS— RESPONDENTS. 
Evidence — Inadmissible  evidence,     whether   can  be 
admitted  by   consent    of    parties— Proof,  mode    of— 


.  CHIttHAYYA.          [02  I.  0. 

The  consent  of  parties  cannot  make  a  piece  of 
evidence  relevant  and  admissible,  which^  is  not  rele- 
vant and  admissible  under  the  provisions  of  the 
Evidence  Act  [p  595,  col  2/| 

It  is  open,  however,  to  the  parties  to  waive  the 
benefit  ot  those  provisions  of  the  Evidence  Act  which 
lay  down  the  mode  of  proof  of  a  document  or  state- 
ment, which,  if  proved,  would  be  relevant.  [t&tcZ] 

Second  appeal  against  a  decree  of  the 
Couit  of  the  Additional  Subordinate  Judge, 
Vizagapatam,  in  A.  S.  No.  96  of  1922,  (A.  8. 
No,  335  of  1921,  on  the  file  of  the  District 
Court,  preferred  against  that  of  the  Court  of 
the  District  Munsif,  Yellamanchilli,  in 
O.  S.  No,  131  of  1920. 

Mr.  B.  Somayya,  for  the  Appellant. 

Mr.  V.  Govindarajachari,  for  the  Respond- 
ents 

JUDGMENT.—The  question  in  this 
suit  was  whether  the  plaintiff  had  been 
adopted  by  one  Chinnayya  before  his  death 
in  September  1918.  The  District  Munsif 
came  to  the  conclusion  on  the  evidence  before 
him  that  the  plaintiff  was  so  adopted.  On 
appeal  to  the  Subordinate  Judge,  the  Sub- 
ordinate Judge*  came  to  a  difterent  con- 
clusion on  the  evidence.  It  is  contended 
in  second  appeal  that  the  conclusion  which 
the  Subordinate  Judge  came  to  was 
influenced  by  the  reception  in  evidence  of 
Ex.  A  and  Ex.  II.  These  were  attempt- 
ed to  be  put  in  before  the  learned  District 
Munsif  but  were  rejected.  Therefore,  ap- 
plication was  made  to  the  Subordinate 
Judge  to  admit  these.  Exhibit  A  is  a 
public  copy  of  the  deposition  of  P.  W.  No. 
3  (4th  deiendant  herein)  before  the  Revenue 
Inspector.  The  request  to  admit  this  Ex. 
A  was  made  by  the  respondent,  and  on  that 
application  the  learned  Subordinate  Judge 
makes  this  note  : 

"  P.  L,  N.,  who  argues  the  case  for  the 
appellant's  learned  Vakil,  has  no  objection 
to  have  the  document  marked.  Mark  this  as 
an  exhibit  on  the  plaintiff's  side  A." 

As  to  Ex.  II  this  is  a  statement  made  by 
the  natural  father  of  the  adopted  boy  and 
the  Judge's  note  on  the  petition  to  admit 
that  is : 

"  There  is  no  objection  to  the  statement 
made  by  the  natural  father". 

The  question  I  have  to  consider  is  whether 
the  consent  or  want  of  objection  by  which 
Exs.  A  and  II,  were  admitted  in  evidence  by 
the  Subordinate  Judge  is  valid  or  whether 
as  contended  for  by  Mr.  Somayya  for  the 
appellant  the  documents  would  naturally 
become  evidence  if  and  when  they  were 
put  to  the  witness  either  to  corroborate  of 


MUN8HI  RAM  V.  B&ttWAN  DAS, 


[92 1.  0. 1986] 

Contradict  them.    la  other  words,    is  the 
consent  to  the  reception    of    these  matters 
simply  a  waiver  of  formal  proof  or  does   it 
go  to  the  root   of  the  matter  and   is   it  an 
attempt  to  make  evidence  of  what  is  really 
not  evidence  under  the  provisions  of  the 
Evidence  Act?  I  may  at  once  say  that  Ex  A 
is  sought  to  be  put  in  under  s.    157  and  Ex 
II,  tinder  s.  145.    Several  cases  have    been 
quoted,  for   instance    Bhavamma  v.  Ram- 
amma  (1).  By  s.  145  of  the  Indian  Evidence 
Act,  the  credit  of  a  witness  maybe  impeach- 
ed   by    proof  of  his    former  inconsistent 
statements,    and  before  a  witness   can  be 
impeached  he  must  be  given  an  opportunity 
of  making  any  explanation  which  is  open 
to  him.    And   further  in    Bal    Gangadkar 
Tilak  v.  Shri  Shnniwas  Pandit  (2)  docu- 
ments had  been  used  for  the  purpose    of 
contradicting  witnesses  without  calling  their 
attention  to  the  portion  of  the  documents  so 
used.    These  depositions  in  a  criminal  case 
were  imported  m  bulk  into  a  civil  enquiry 
as  to  a  question  of  adoption     Their  Lord- 
ships of  the  Privy  Council  held  that  there 
were  no  circumstances  in  that  case  to  bung 
the  matter  within  the  purview  of  s    33  of 
the  Evidence    Act,    nor  any    warrant  for 
using  the  documents  for   the  purpose  of 
either     contradicting  or   discounting    the 
evidence  of  the  witnesses  given  in  the  suit. 
There  is  no  question  there  of  any  consent 
or  waiver  of  objection.    On  the  other  hand 
in  a  Full  Bench  case  in  this  Court    Jainab 
Bibi  Saheba  v.  Hyderally  Saheb  (3),  it  was 
held  that  the  evidence  recorded  in  a  previous 
proceeding  between  the  same  parties  may 
be  made  admissible  in   a  subsequent   pro- 
ceedings by  their  consent.    Coutts  Trotter, 
J  ,  there  said  : — *'  It    is  clear  that  in  this 
country  neither  an  omission  by  an  Advocate 
to    object  to  the  giving  of  irrelevant  and 
inadmissible  evidence,  nor  the  failure  of  the 
tribunal  to  exclude  it    of  its  own  motion,, 
will  validate  a  decree  based  on  material 
which    the  Evidence    Act  declares  to  be 
inherently  and  in    substance  irrelevant   to 
the    issue.    A    wholly  different    question 
arises  where  the  objection  is  not  as  to  the 
nature  and  quality  of  the  evidence  in  itself, 


(1)  78  Ind  Gas  176,   10  L  W  205,    (1024)  M  W  N 
270,  34  M  L   T.  555;  (1924)  A,  I  R  (M )  537 

(2)  29  Ind    Cas   639,  39  B  441  at  p.  461,  13  A    L  J. 
570,  19  0  W  N    729,   17  Bora     L  K   527,  22  C  L  J 
1;  29  M.  L  J  34;  18  M  L  T  1,  (1915)  M  W.  N.  484, 
2  L  W.  611,  421   A  135  (P  0) 

(3)  56  lad,  Cas.  957;  43  M,  609,  38  M  L,  J.  532;  28 
ILL.  T.  23;  (1920)  M.  W.  N.  360;  12  L,  W.  64. 


£65 

of  proof  put 


but  merely  as  to   the  mode 
forward" 

And  the  learned  Judge  holds  that  "consent 
can  cure  what  would  otherwise  be  a  defec- 
tive method  of  letting  in  evidence  in  its 
substance  and  context  relevant  and  germane 
to  the  issues1' 

I  am  of  opinion  that  this  is  what  has 
happened  m  the  present  case,  namely,  that 
there  has  been  consent  or  waiver  of  objec- 
tion to  the  mode  in  which  these  statement^ 
which  are  admittedly  relevant  under  the 
Evidence  Act  should  be  admitted  to  the 
record  An  earlier  case  in  Inugunti  Prakasa 
Rayamngaru  v  Yeranki  Venkata  Rao  (4) 
is  to  the  same  effect.  There  the  learned 
Judge  says  — 

"  The  facts  admitted  in  evidence  being 
themselves  relevant,  the  provisions  of  law 
intended  to  test  the  credibility  of  witnesses 
or  to  enable  the  Trying  Judge  to  make  the 
test  himself  are  not  of  such  an  important 
character  that  parties  cannot  waive  the 
benefit  of  those  provisions". 

I  am,  therefore,  of  opinion  that  the  learn- 
ed Subordinate  Judge  was  justified  in 
receiving  these  oral  statements  Exs.  A  and 
II,  and  in  estimating  the  oral  statements 
made  by  the  witnesses  in  the  light  of  the 
statements  made  by  them  in  these  docu- 
ments. 

The  second  appeal  must,     therefore,  be 
dismissed  with  costs, 
v.  N  v. 
z.  K,  Appeal  dismissed. 

38  M  160,  25   M  L    J    360' 


(1)  21   Ind    Cas    319, 
^1913)  M.  W  N  800 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  SECOND  APPEAL  No.  640 

OK  1925. 

October  27,  1925 

Present.— Mr.  Justice  Campbell 

MUN8HI    RAM — DEFENDANT — APPELLANT 

versus 

BHAGWAN  DAS,  PROPRIETOR  OF  THE 

FIRM  THAKUR  DAS-NATHU  MAL— 

PLAINTIFF,  KUN J  BEHARI  LAL  AND 

ANOTHER — DEFENDANTS — RESPONDENTS. 

Limitation  Act  (IX  of  1908),  Sch  I,  Art  83— 
Principal  and  agent—Suit  by  agent  /or  re-imburse* 
ment — Limitation 

A  suit  by  a  commission  agent  for  le-imbursement 
of  losses  paid  on  behalf  of  his  principal  is  governed 
by  Art  83  of  Sch  I  to  the  Limitation  Act,  and  limita- 
tion m  rebpeot  of  each  item  begins  to  run  from  th0 
date  of  damnification,  [p,  596,  col.  2,  p.  597,  dol,  l.J 


59fi 


MUNSHl  BAM 


Miscellaneous  second  appeal  from  an 
order  of  the  Additional  District  Judge, 
Hoshiarpur,  dated  the  8th  December  1924, 
reversing  that  of  the  Subordinate  Judge, 
Second  Class,  Hoshiarpur,  dated  the  4th 
February  1924. 

Lala  Fakir  Chand,  for  the  Appellant. 

Diwan  Mehr  Chand,  for  the  Plaintiff- 
Respondents 

JUDGMENT. — This  was  a  suit  to 
recover  the  losses  alleged  by  the  plaintiffs 
to  have  been  sustained  by  them  in  certain 
dealings  in  lac  which  they  undertook  as 
commission  agents  on  behalf  of  the  defend- 
ants. The  first  Court  held  that  the  suit 
came  within  the  scope  of  Art.  83  of  the 
Indian  Limitation  Act  and  that  the  plaint- 
iffs had  failed  to  prove  that  it  was  within 
time.  On  appeal  the  learned  Additional 
Judge  held  that  Art  64  was  the  Article 
applicable  and  that  the  suit  was  within 
time,  since  by  Punjafe  Act  I  of  1904  the 
period  of  limitation  under  that  Article  was 
enlarged  to  six  years. 

One  of  the  defendants  challenges  this 
finding  in  second  appeal, 

The  plaintiffs  made  on  behalf  of  the 
defendants  two  purchases,  each  of  100 
maunds  of  lac,  in  Mirzapur,  one  in  August 
and  the  other  in  September,  1916.  Delivery 
was  to  be  on  the  15th  October  1916.  On 
that  date  an  entry ^was  made  in  the  plaint- 
iff's account  book  by  which  the  defendants 
acknowledged  a  balance  of  Rs.  2,550  against 
them  and  agreed  to  re-pay  it  with  interest  at 
8  annas  per  cent,  per  mensem.  The  plaintiff 
set  forth  this  in  his  plaint  describing  the 
account  as  "  Hisab  yadd&sht  zabani  mutabiq 
khamd'O-farokht"  and  stated  that  on  the 
one  contract  a  loss  of  Rs.  1,875  had  been 
estimated  and  on  the  other  a  loss  of 
Rs.  1,450.  To  these  sums  Rs.  225  commis- 
sion was  added  and  the  total  came  to 
Rs.  3,550.  From  this  were  deducted  two 
payments  of  Rs.  5(JO  each  made  in  advance 
by  the  defendants  and  thus  the  balance 
against  them  was  Rs  2,550.  The  plaint 
went  on  to  set  forth  other  and  subsequent 
accounts  which  ignored  the  balance  of 
Rs.  2,550  and  commenced  afresh  with  the 
charge  of  Rs.  3,550  against  the  defendants. 
They  were  debited  further  with  Rs.  2-5 
miscellaneous  charges  for  telegrams,  etc , 
Us.  713  7'9,  described  as  the  actual  loss 
subsequently  ascertained  as  having  been 
incurred  on  one  of  the  contracts,  and  an 
extra  charge  of  Rs  71-8  for  commission  on 
the  other  contract.  On  the  other  side  the 


v.  BHI&WAN  DAS-  [92 1.  0. 1926] 

defendants  were  given  credit  for  Rs.  1,000 
(the  two  advance  payments  of  Rs.  500  each), 
for  Rs.  492-8  representing  a  subsequent 
advance  payment  for  yet  another  transac- 
tion which  had  not  materialized,  and  for 
Rs.  I,fc75  which  had  been  the  estimated  loss 
calculated  on  the  15th  October  1916  of  the 
transaction  on  which  the  actual  loss  was 
afterwards  found  to  Rs.  713-7-9  only.  The 
plaintiffs  in  due  course  produced  their 
books  showing  these  accounts  set  forth  as 
described  after  the  signed  balance.  The 
learned  Additional  Judge  observed  that  the 
plaint  had  been  unhappily  worded  but  that, 
in  his  opinion,  the  claim  was  not  one  by  a 
commission  agent  for  the  re-imbursement  of 
losses  paid  on  behalf  of  his  principal  but  a 
suit  on  accounts  stated  in  writing  signed 
by  the  defendants,  that  is  to  say,  the 
account  balanced  on  the  15th  October  1916. 
The  subsequent  accounts  he  regarded  mere- 
ly as  certain  sums  credited  later  in  good 
faith  by  the  plaintiffs  thinking  that  the 
defendants  were  entitled  to  them.  He  held 
that  from  the  15th  October  1916  the  risk 
on  the  two  contracts  had  become  that  of 
the  plaintiff,  and  that  the  defendants 
could  not  have  been  called  upon  to  pay 
more  than  Rs.  2,550  if  the  losses  had  been 
found  later  on  to  exceed  that  sum, 

A  flaw  in  this  view  is  that  the  plaint- 
iff actually  claimed  Rs.  71-8  as  commission 
in  addition  to  the  commission  item  of 
Rs.  225  included  in  the  balance,  in  my 
opinion  the  claim  made  in  the  plaint  was 
not  based  on  the  balance  at  all,  but  men- 
tion of  the  balance  was  only  designed  to 
meet  a  possible  plea  that  the  transactions 
were  mere  gambling  transactions  and  the 
claim  was  made  on  other  and  subsequent 
figures  which  superseded  and  ignored  the 
balance  altogether. 

The  suit  was  not  one  for  money  payable 
on  accounts  stated  between  the  parties 
instituted  within  six  years  of  the  date  on 
which  the  accounts  were  stated  in  writing 
signed  by  the  defendants, 

I  hold  the  decision  of  the  first  Court  to 
have  been  right,  that  Art.  83  governed  the 
suit.  This  decision  is  supported  by  Manghi 
Ram  v.  Firm  of  Saran  Das-Maman 
Chand  (1)  and  by  other  subsequent  rulings. 
It  has  been  urged  by  the  learned  Counsel 
for  the  respondents  that  in  any  case  under 
Art.  83  the  suit  would  be  in  time  in  respect 
of  the  claim  for  Rs.  713-7-9  but  all  that 

(1)  28  Ind.  Gas.  415;  23  P.  R.  1915;  35  P,  W.  R,  1915; 
100  P,  L,  R,  1915.  f 


(92  I.  0. 1926] 


NAND  RAtf  V.  ISHAR, 


397- 


appears  regarding  this  is  a  statement  by 
the  plaintiff  that  the  amount  was  debited 
against  the  defendants  in  his  books  on  the 
3Lst  July  1919.  There  is  no  evidence  of 
when  the  plaintiff  actually  had  to  pay  it 
and  I  agree  with  the  first  Court  that  the 
plaintiff  has  failed  to  prove  the  date  of 
damnification  in  respect  of  any  of  his  claim. 

I,  therefore,  accept  the  appeal  and  dis- 
miss the  suit  with  costs  throughout. 

z.  K.  Appeal  accepted. 


MADRAS  HIGH  COURT. 

APPBAL  AOAINST  ORDER  No.  415  OP  1922 

October  6,  1925. 
Present. — Mr  Justice  Devadoss  and 

Mr.  Justice  Waller. 

MUHAMMAD  MOHIDEEN  MARACAYAR 
— APPELLANT 

versus 

RAMANADHAN  CHETTIAR  AND  ANOTHER 
— RESPONDENTS 

Civil  Procedure  Code  (Act  V  of   Wn8)t   0    XXI,    r 
90 — Execution  of  decree—  Property  sold  as  belonging  to 
judgment-debtor— Previous    sale   by  yudrjment-debtoj  — 
Application  by  judgment-debtor  to  set  aside  auction-sale^ 
maintainability  of 

Where,  in  execution  of  a  cboiee,  certain  property  is 
sold  as  belonging  to  the  judgment-debtor,  the  latter  is 
entitled  to  maintain  an  application  to  set  aside  the 
sale  on  the  ground  of  material  irregularity  in  the 
publication  and  conduct  of  the  sale,  and  the  appli- 
cation cannot  be  thrown  out  on  the  giound  that  the 
judgment-debtor  had  prior  to  the  date  of  the  auction 
sold  the  property  to  a  third  person  and  had  thus 
ceased  to  have  an  interest  in  the  property 

Appeal  against  an  order  of  the  Court  of 
the  Subordinate  Judge,  Mayavaram,  in  E. 
A.  No.  210  of  1922,  dated  the  22nd  August 
1922,  in  0.  S,  No.  4  of  1921,  on  the  file  of  the 
Court  of  the  Subordinate  Judge,  Nega- 
patam. 

Mr.  K.  Rajah  Iyer,  for  the   Appellant. 

Mr.  A.  Krishnaswamy  Iyer,  for  the  Re- 
spondents. 

JUDGMENT.— This  is  an  a  p  p  e  a.  1 
against  the  order  of  the  Subordinate  Judge 
of  Mayavaram  dismissing  the  appellant's 
petition  for  setting  aside  a  sale  under 
O.  XXI,  r.  90.  The  Subordinate  Judge  dis- 
missed the  application  on  the  ground  that 
the  judgment-debtor  had  no  interest  in  the 
properties,  he  having  sold  them  to  Velu 
Filial  before  the  date  of  auction  sale.  The 
properties  were  sold  as  those  belonging  to 
the  appellant.  If  the  properties  did  not 


belong  to  him,  the    decree-holder    could 
not  have  brought  them  to  sale  in  execution 
of    his  decree  and  the    Court    could    not 
have  sold  the  properties  as  those    belong- 
ing to  the  appellant     It  cannot,  therefore, 
be  said  that,  when  he  applies  under  r    90 
of  O,  XXI    to  have  the    sale  set  aside  on 
the  ground  of  irregularity  in    publiflhing 
and  conducting  the  sale,  his  interests  are 
not  affected.    Rule  90  is  wide  in  its  terms. 
It  says  "the  decree-holder  or    any    person 
entitled  to  share  in  a  rateable    distribution 
of  assets,  or  whose   interests  are  affected 
by  the  sale,  may  apply  to  the  Court  to  set 
aside  the  sale  on  the    ground  of  a  material 
irregularity    or    fraud  in     publishing    or 
conducting  it.11    Here  the  property  was  sold 
as   the  property  of  the  appellant    and  we 
fail  to  see  how  they  ceased  to  be  his  pro- 
perties before   the  date  of  sale    If  he    had 
any  interest  at  the  time  when  the  properties 
were  sold,  it  cannot    be   said  that  his  in- 
terest in  them  had  ceased  by  virtue  of  thesale 
which  would   prevent   his  applying  r.   90. 
We  think  the  order  is  bad  in  law  and  we  set 
it  aside  and  direct  the  Subordinate  Judge 
to  restore   the  application  to  file    and  dis- 
pose of  it  on  the  merits.     Costs     of    the 
appeal  will  be  provided  for  by  the  lower 
Court    when   it  .disposes    of    the    applica- 
tion, 
v.  N.  v  Appeal  allowed, 

Z.  K. 


LAHORE  HIGH  COURT. 

SECOND   CIVIL  APPEAL  No.  2647  OF  1924, 

December  1,  1925. 

Present: — Mr.  Justice  Campbell. 

Rao  Sahib  Chaudn  NAND  RAM  AND 

ANOTHBR — DEFENDANTS — APPELLANTS 

versus 

ISHAR   AND    OTHERS — PLAINTIFFS—- 
RESPONDENTS 

Punjab  Tenancy  Act  (XVI  of  1887),  ss  50,  77  (3) 
(g),  (i)~  Limitation  Act  (IX  of  1908),  s  18—Landlord 
and  tenant— Dispossession  of  tenant  by  landlord— Suit 
by  tenant  to  recover  possession—Jurisdiction  of  Civil 
and  Revenue  Courts— Fraud — Extension  of  Zimtta- 
tion 

Sub-clauses  (g)  and  (i)  of  s  77  (3)  of  the  Punjab 
Tenancy  Act  cover  all  conceivable  causes  of  litigation, 
between  a  landlord  and  his  tenant  qua  tenant,  and  an 
ex-tenant  m  that  capacity,  can  look  for  no  relief 
outside  the  Revenue  Courts 

If  a  tenant,  who  has  been  wrongfully  dispossessed 
of  Ixis  tenancy  in.  tbo  circumstances  mentioned  in 
B  50  of  the  Punjab  Tenancy  Act,  allows  the  period  of 
one  year  prescribed  by  that  section  to  expire  without 


598 


NAND  BAM  V.  1SH4R. 


[92 1.  0. 1926] 


bringing  a  suit  in  the  Revenue  Court,  he  loses  his 
remedy  altogether,  and  by  the  combined  operation  of 
sa  50  and  77  (3)  i#)  is  debarred  from  bringing  a  suit 
for  recovery  of  possession  or  for  compensation  or  for 
both  in  a  Civil  Court 

In  a  suit  by  a  tenant  to  recover  possession  of  his 
holding  from  which  lie  has  been  dispossessed  by  the 
landlord,  it  is  not  any  alleged  fraud  by  which  dis- 
possession was  carried  out  by  the  landlord  which  is 
pertinent  for  the  purposes  of  s  18  of  the  Limitation 
Act,  but  the  fraud  by  which  the  plaintiff  has  been  kept 
from  the  knowledge  of  his  right  to  institute  a  suit 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Hissar,  dated  the  30th  June  1924, 
affirming  that  of  the  Munsif,  First  Class, 
Hissar,  dated  the  1st  August  1924. 

Mr.  Shamair  Chand,  for  the  Appellants. 

Pandit  Nanak  Chand,  for  the  Respondents. 

JUDGMENT.— The  plaintiffs  in  this 
suit  alleged  themselves  to  be  occupancy 
tenants  of  certain  land  and  the  defendants 
to  be  the  landlords.  They  sued  for  posses- 
sion on  the  ground  that  in  1917  at  a  time 
when  the  plaintiffs  had  arranged  for  the 
cultivation  of  the  occupancy  tenancy  by 
eub- tenants,  the  defendants  landlords  got 
a  mutation  sanctioned  removing  the  plaint- 
iffs' names  from  the  record  as  occupancy 
tenants  and  thereby  dispossessed  them. 
The  suit  was  for  possession  of  the  land 
comprised  in  the  tenancy. 

The  defendants  pleaded  that  the  plaintiffs 
had  lost  their  rights  of  occupancy  by  aban- 
donment. 

Both  Courts  below  have  concurred  in 
decreeing  the  plaintiffs'  claim  In  second 
appeal  the  objection  is  raised  for  the  first 
time  that  the  suit  was  cognizable  by  a 
Revenue  Court  and  not  by  a  Civil  Court. 
It  is  obvious  that  this  is  so. 

The  alleged  dispossession  took  place  on 
the  15th  December  1917  and  the  suit  was 
instituted  on  the  llth  January  1921,  Jn  a 
precisely  similar  case  of  Mahindar  Singh  v. 
Allah  Ditto,  (1)  it  was  held  that  cases  of 
this  nature  are  fully  covered  by  the  decision 
in  the  Full  Bench  case  of  AkbarHussain 
v.  Karam  Dad  (2).  In  the  judgment  of 
Mr,  Justice  Shah  Din  in  the  latter  case  it  ie 
laid  down  that  if  a  tenant,  who  has  been 
wrongfully  dispossessed  of  his  tenancy  in 
the  circumstances  mentioned  in  s.  50  of  the 
Punjab  Tenancy  Act,  allows  the  period  of 
one  year  prescribed  by  that  section  to 
expire  without  bringing  a  suit  in  the 
Bevenue  Court,  he  loses  his  remedy  alto- 
gether, and  by  the  combined  operation  of 

(1)  78  IncL  Cas.  346;  (1924)  A.  L  R,  (L.)  53d. 
;  48  Ito 


ss,  50  and  77  (3)  (g)  is  debarred  from  bringing 
a  suit  for  recovery  of  possession  or  for 
compensation  or  for  both  in  a  Civil  Court. 
This  pronouncement  was  made  after  con- 
sidering the  observations  of  Sir  Meredith 
Piowden  in  the  referring  order  to  P.  R 
1891  [Kesar  Singh  v.  Nihal  Singh  (3)], 
and  it  appears  to  me  to  be  conclusive  in 
respect  of  the  present  suit.  In  the  same 
case  AkbarHussain  v.  Karam  Dad  (2)  it 
was  rightly  pointed  out  by  Rossignol,  J., 
that  s.  77  (3)  (g)  and  (i)  appear  to  cover  all 
conceivable  causes  of  litigation  between 
a  landlord  and  his  tenant  qua  tenant,  and 
that  an  eo:-tenant,  in  that  capacity,  can  look 
for  no  relief  outside  the  Revenue  Courts.  ^ 

lu  the  present  instance  the  plaintiffs 
allege  themselves  to  be  tenants  who  have 
never  abandoned  their  tenancy  and  the 
suit  is  not  cognizable  by  a  Civil  Court. 

1  have  been  asked  to  consider  the  facts 
that  no  previous  objection  to  jurisdiction 
was  raised  and  that  fraud  was  alleged  in  the 
plaint  in  deciding  whether  an  order  should 
be  passed  under  s.  100  (3J  of    the  Punjab 
Tenancy    Act  and   the  decree  of  the  first 
Court  ordered  to  be  registered  as  that  of 
an  Assistant  Collector.    No  specific  allega- 
tion, however,  is  made  in  the  plaint  of  the 
particular  fraud   by    which    dispossession 
was    concealed  from  the  plaintiffs  by  the 
defendants,  and  for  purposes  of  s.  18  of  the 
Limitation  Act  it  is  not  the  alleged  fraud 
by  which   dispossession    was   carried    out 
which  is  pertinent,  but  the  fraud  by  which 
the  plaintiffs    have    been    kept   from    the 
knowledge  of  their  right  to  institute  a  suit. 
As  for    the  failure  of  the    defendants  to 
raise  the   question  of  jurisdiction   before, 
it  is  not  contended  that  this  precludes  me 
from  going  into  this  question    in  second 
appeal,  and  in  view  of  the  rulings  of  this 
Court   cited  above,  to  which  I  adhere,  it 
would  be  vexatious  to  order  otherwise  than 
that  the  suit  should  be  dismissed.    I  accept 
the  appeal  and  dismiss  the   suit  with  costs 
throughout  as  being  a  suit  which  the  lower 
Courts  had  no  jurisdiction  to  hear, 
z.  K,  Appeal  accepted. 

(3)  45  P.  R,  1891. 


[92  L  0.  1926]  CHOCKALINQAM  PILLAI 

MADRAS  HIGH  COURT. 

APPEAL  AGAINST  OtcDER  No.  109  OF  1925 

AND 

CIVIL  REVISION  PETITION  No.  208  OF  1925 

AND 

CIVIL  MISCELLANEOUS  PETITION  No,  1170 

OP  1925. 
April  3,  1925. 

Present: — Sir  Victor  Murray  Coutts- 
Trotter,  KT.,  Chief  Justice,  and  Mr.  Justice 
Wallace. 

CHOCKALINOAM  P1LLAI  AND  ANOTHER 
— DEFENDANTS  Nos.  2  AND  3— PETITIONERS- 
APPELLANTS 
versus 

P.  K.  P.  8  PICHAPPA  CHETTIAR— 
PLAINTIFF—RESPONDENT. 

Citnl  Procedure  Code  (Act  V  of  1908),  0  VI,  r,  17,  0 
XL,  r.  I — Suit  to  enforce  agreement  to  execute  simple 
mortgage— Receiver,  whether  can  be  appointed — Suit  for 
specific  performance  of  agreement  to  sell — Amendment 
of  plaint  to  include  prayer  for  possession,  whether 
permissible 

In  a  suit  for  specific  performance  of  an  agreement 
to  execute  a  simple  mortgage,  it  is  not  competent  to 
the  Court  to  appoint  a  .Receiver  pending  suit  to  take 
charge  of  the  property  in  suit  and  thus  do  by  way  of 
receivership  what  it  would  not  bs  entitled  to  do  even 
by  way  of  decree 

It  is  open  to  the  Court  in  a  suit  for  specific  per- 
formance of  an  agreement  to  sell  immoveable  propertv 
albo  to  give  a  decree  for  possession  In  such  a.  suit  it 
is  Dot  an  improper  exercise  of  discretion  for  the  Court 
to  allow  the  plaint  to  be  amended  so  as  to  include  an 
express  prayer  for  possession 

Appeal  against  an  order  of  the  Court 
of  the  Additional  iSubordinate  Judge, 
Ramnad  at  Madura,  in  I.  A.  No.  42  of  1925, 
in  O.  8.  No,  39  of  1924  and  petition,  under 
s.  115  of  Act  V  of  1908  and  s.  107  of  the 
Government  of  India  Act,  to  revise  an 
order  of  the  Court  of  the  Additional 
Subordinate  Judge,  •  Ramnad  at  Madura, 
in  I.  A.  No.  2«5  of  1924,  in  O.  8.  No  39  of 
Iy24,  and  petition  praying  that  in  the  cir- 
cumstances stated  in  the  affidavit  filed 
therewith,  the  High  Court  will  be  pleased 
to  issue  an  order  directing  stay  of  all 
further  proceedings  by  the  Receiver  ap- 
pointed in  O.  S.  No.  39  of  1924,  on  the  file 
of  the  Court  of  the  Additional  Subordinate 
Judge,  Ramnad  at  Madura,  pending  dis- 
posal of  A.  A.  0.  No.  109  of  1925,  preferred 
to  the  High  Court  against  an  order  of 
the  said  Court  of  the  Additional  Subordi- 
nate Judge,  Ramnad  at  Madura,  in  I.  A. 
No.  42  of  1925,  in  0.  S.  No.  39  of  19^4. 

Messrs.  T.  K.  Ramachandra  Iyer  and  K.  S. 
Venkataramani,  for  the  Appellants. 

Messrs  K.  R.  Venkatarama  Iyer  and 
Watrap  S.  Subramania  Iyer,  for  the  Re- 
spondents. 


V,  PICHAPPA  OHBTTIAR, 


599 


JUDGMENT.— This  appeal  is  against 
the  order  of  the  Additional  Subordinate 
Judge  of  Ramnad  at  Madura  appointing  a 
Receiver  in  respect  of  the  schedule  pro- 
perties in  the  suit  which,  according  to  the 
plaintiff's  case,  the  defendants  Nos.  1  to 
3  had  contracted  to  sell  to  him,  and  of  the  B 
schedule  properties  in  the  plaint  which, 
according  to  the  plaintiff,  the  defendants 
Nos.  1  to  3  had  agreed  to  mortgage  to  him 
by  simple  mortgage.  The  suit  is  a  suit  for 
specific  performance  inter  alia  of  this  con- 
tract to  sell  and  to  execute  a  simple  mort- 
gage. Mr,  T.  R.  Ramachandrier  for  the 
appellant  contends  that  at  any  rate  so  far 
as  the  B  schedule  properties  are  concerned, 
it  is  not  open  to  the  lower  Court  to  appoint 
a  Receiver,  the  point  being  that  the  lower 
Court  cannot  by  way  of  receivership  do 
what  it  would  not  be  entitled  to  do  even 
by  way  of  decree.  At  the  highest,  the  plaint- 
iff is  entitled  if  he  succeeds  only  to  a 
simple  mortgage  on  these  properties,  and 
having  obtained  this  simple  mortgage  he 
could  not  immediately  sue  for  possession, 
He  is  not  entitled  on  the  simple  mortgage 
to  possession.  The  most  he  could  do  is  to 
enforce  a  sale  on  foot  of  the  mortgage. 
We  think  that  this  argument  is  sound  and 
that  the  lower  Court  was  not  justified  in 
appointing  a  Receiver  so  far  as  the  B 
schedule  properties  are  concerned. 

So  far  as  the  A  schedule  properties  are 
concerned,  Mr.  T.  R.  Ramchandrier  has 
also  argued  that  the  lower  Court  has  exer- 
cised its  discretion  improperly  in  appoint- 
ing a  Receiver  in  respect  of  properties  of 
which  the  plaintiff,  in  the  first  instance  at 
least,  is  only  asking  for  specific  perform- 
ance of  sale  and  not  for  possession.  Sub- 
sequently, however,  the  plaintiff  was  allow- 
ed to  amend  his  plaint  and  put  forward  a 
prayer  for  possession  of  these  properties 
also.  A  civil  revision  petition  has  been 
filed  here  against  this  amendment  of  the 
plaint  and  we  deal  with  this  now.  Various 
rulings  of  this  Court  have  been  quoted  to 
us,  as  also  Form  47  of  the  First  Schedule  to 
the  C.  P.  C.,  which  set  out  that  it  is  open 
to  the  Court  in  a  suit  for  specific  perform- 
ance of  sale,  also  to  give  a  decree  for 
possession.  We  are  not,  therefore,  prepared 
to  say  that  the  lower  Court  exercised  its 
discretion  wrongly  in  permitting  the 
amendment  of  the  plaint  and  allowing  the 
plaintiff  to  add  a  prayer  for  possession  of 
the  A  schedule  properties.  That  being  so, 
the  plaintiff's  prayer  for  possession  will- 


«00 

Btaiid,  and  in  these  circumstances  we  do 
not  think  we  can  say  the  lower  Court  exer- 
cised its  discretion  wrongly  when  it  ap- 
pointed a  Receiver  in  respect  of  those 
properties,  a  decree  for  possession  of  which 
the  plaintiff  would  be  entitled  to  if  he 
succeeds. 

In  these  circumstances  we  dismiss  0.  E. 
P.  No.  208  of  1925.  No  order  as  to  costs. 

As  regards  C.  M.  A,  No.  109  the  lower 
Court's  order  is  set  aside  so  far  as  the  B 
schedule  properties  are  concerned  and  the 
Receiver,  if  he  has  taken  over  charge  of 
these  properties  must  be  discharged  of  it. 
No  order  as  to  costs, 

v.  N.  v.  C,  M.  A.  partly  allowed. 

32,  K,  C.  ft.  P.  dismissed, 


MDMTAZ  ALI  V.  ALLAH  BANDA, 


[92  1.  0. 1926] 


ALLAHABAD  HIGH  COURT. 

FIRST  APPEAL  FROM  ORDER  No.  51  OF  li)25. 

November  19,  1925. 
Present: — Mr.  Justice  Sulaiman  and 

Mr.  Justice  Mukerji. 
MUMTAZ  ALI— PLAINTIFF— APPELLANT 

versus 

ALLAH  BANDA— DEFENDANT- 
RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  s  10J,  (f),  0. 
XXIII,  r  3,  0  XLIII,  r  1  (m),  Sch  II,  paras  20, 
21  —Arbitration — Award—Decree  an  award—Appeal 
— Remand— Appeal,  second,  whether  lies 

During  the  pendency  of  a  suit  the  plaintiff  made 
what  purported  to  be  an  application  under  para  20 
of  Sell  II,  C  P  C ,  stating  that  the  matter  in  suit 
had  been  referred  to  arbitration  and  that  an  award 
had  been  made  and  requesting  that  the  award  may  be 
filed  and  a  decree  passed  m  accoi  dance  with  it. 
Defendant  filed  objections  denying  any  valid  refer- 
ence to  arbitration  or  the  making  of  any  valid  award 
The  Court  took  evidence  and  decided  that  a  valid 
reference  and  a  valid  awaid  had  been  made  and 
passed  a  decree  in  terms  of  the  award  On  appeal 
the  lower  Appellate  Court  held  that  no  award  had 
been  made  and  remanded  the  case  to  the  first  Court 
for  trial  according  to  law  On  second  appeal  by 
the  plaintiff' 

Held,  (1)  that  the  order  of  the  Trial  Court  although 
inform  a  decree,  must  be  tieated  as  an  order  direct- 
ing that  the  award  be  filed,  and  that  as  such  it  was 
open  to  appeal, 

(2)  that  even  if  it  was  regarded  as  an  order  record- 
ing a  compromise  it  was    still  an    order    open    to 
appeal; 

(3)  that  the  appeal  preferred   by  the  defendant  to 
the  lower  Appellate  Court  must,  therefore,  be  treated 
as  an  appeal  from  an  order,  with  the  result  that  no 
second  appeal  was  competent. 

First  appeal  from  an  order  of  the  Addi- 
tional Subordinate  Judge,    Meerut,    dated 
3rd  December  1924, 


Mr.  HaribansSahai,  for  the  Appellant. 

Mr.  S.  A.  Haider,  for  the  Respondent. 

JUDGMENT*— This  purports  to  be  a 
first  appeal  from  order  of  remand.    In  the 
course  of  a  pending  suit,  while  a  Commis- 
sioner was  appointed  by  the  Court  to  draw 
up  a  sketch  plan,  the  parties  are  alleged  to 
have  agreed  to  refer  their  dispute  to  two 
arbitrators  who  went  to  the  spot  and  made 
two  marks  on  the  land  to  indicate   the  line 
which  should  be  drawn  beyond  which  the 
defendant's  construction  should  not  extend. 
On  the  22nd  of  April   1924  an  application 
purporting  to  be  one  under  Sch.  II,  r.  20  of 
the  C,  P.  C.,  was  filed  by  the  plaintiff  with 
a  request  that  the  alleged  award  made  by 
the  arbitrators  should  be  filed  in  Court.  Ob- 
jections were  filed   on  the  26th  of    April 
denying  any  valid  reference  to  the  arbitra*- 
tors  or  the  making  of  any  valid  award.    The 
Court  of  first  instance  took   evidence  an  \ 
decided  that  a  valid  reference  and  a  vaLts 
award  had   been  made.    But    instead 
passing  first  an  order  directing  the  awar 
be  filed  and  then  passing  a  decree  in  terms 
of  it  it  passed  a  composite  order  decree- 
ing the  plaintiff's  claim  in  terms  of  it.    An 
appeal  was  preferred  by  the  defendant  to 
the  lower  Appellate  Court  purporting  to  be 
an  appeal  from  the  decree  so  passed  by  the 
learned  Munsif.    There  is  no  reference  in 
the  judgment  of  the  lower  Appellate  Court 
that  the  respondent's  Vakil  took  the  objec- 
tion that  no  appeal  lay  to  it.    The  lower 
Appellate  Court  came  to  the  conclusion  that 
the  arbitrators  had  riot   made  any  award. 
It  accordingly  remanded   the  case  to  the 
Court  below  for  trial  according  to  law. 

There  nan  be  no  doubt  that  no  appeal 
lies  from  a  decree  which  is  passed  in  terms 
of  an  award  except  in  so  far  as  it  is  at 
variance  with  the  award.  In  this  case 
there  was  a  composite  order  passed  by  the 
Munsif  and  it  is  impossible  to  hold  that  the 
defendant  was  not  entitled  to  any  relief. 
Even  if  the  order  of  the  first  Court  were 
taken  to  bean  order  recording  a  compromise 
an  appeal  would  lie  from  that  order.  In 
our  opinion  this  case  is  on  all  fours  with  the 
ruling  in  Jagat  Pande  v.  Sarwan  Pande 
(1).  The  appeal  to  the  Court  below  must  be 
treated  as  an  appeal  from  an  order,  with 
the  result  that  no  second  appeal  lies  to  this 
Court. 

As  there  has  been  some  confusion  owing 
to  the  way  in  which  the  appeal  was  describ- 

(1)  88  Ind.  Cas  76;  23  A.  L.  J  440;  L.  R,  §  A.  350 
Civ.;  (1925)  A.  I  R,  (A.)  401;  47  A,  743. 


($2  I.  0.  1926J 

ed^in  the  lower  Appellate  Court,  we  direct 
that  the  parties  bear  their  own  costs  of  this 
appeal. 

z  K.  Order  accordingly. 


ADAM  SARPAR  V.  BISWBSWAR  DAS. 


601 


CALCUTTA  HIGH  COURT, 

APPEALS  FROM  APPELLATE  DECREES 
Nos.  1264  AND  1265  OF  1923. 

June  9,  1925 
'Present. — Justice  Sir  Ewart  Greaves, 

KT.,  and  Mr.  Justice  B  B.  Ghose. 

ADAM  SARDAR   AND  OTHERS—DEFENDANTS 

— APPELLANTS 

versus 

B18WESWAR  DAS  AND  OTHERS- 
PLAINTIFFS — RESPONDENTS 

Bengal  Tenancy  Act  (VJII  of  1885),  a  105  -Civil 
Procedure  Code  (Act  V  of  1908),  0  XIJ,  r  27— 
Landlord  and  tenant— Assessment  of  additional  rent 
for  additional  area-  Memorantlum  of  measurement, 
admissibiliti/  of —Appeal— Additional  evidence,  ad- 
mission of-  -  Pi  oced  M  e 

In  a  proceeding  under  s  105  of  the  Bengal  Ten- 
ancyf  Act  for  assessment  of  additional  rent  for 
additional  ai.^a,  a  document  puipoitmg  to  be  a  me- 
morandum of  measurement,  which  bears  no  date  and 
about  which  it  is  not  shown  under  what  cucumstances 
it  was  prepHied,  cannot  be  admitted  111  evidence 

An  application  was  put  in  before  an  Appellate 
Court  asking  that  a  document  attached  to  the  appli- 
cation should  be  admitted  in  evidence  The  only 
order  passed  on  the  application  was,  "file  with  the 
record" 

Held,  that  the  document  was  not  properly  admitted 
m  evidence 

Appeals  against  the  decrees  of  the  Special 
Judge,  Jessore,  dated  the  19th  of  January 
1923,  modifying  those  of  the  Assistant 
Settlement  Officer,  Magura,  dated  the  10th 
of  June  1922 

Babu  Profulla  Kamal  Das,  for  the  Appel- 
lants. 

Mr.  Sarat  Chandra  Basak  (with  him  Babus 
Kanai  DItone  Dutt  and  Sudhansu  Sekhar 
Kar),  for  the  Respondents. 

JUDGMENT.— These  two  appeals  aie 
by  the  defendants  against  the  decisions  of 
the  Special  Judge  of  Jessore  modifying  the 
decision  of  the  Assistant  Settlement  Officer 
The  proceedings  out  of  which  these  appeals 
arise  were  proceedings  under  s  105  of  the 
Bengal  Tenancy  Act  by  the  landlord  for 
enhancement  of  rent  under  the  provisions 
of  s,  52  of  the  Bengal  Tenancy  Act  and 
also  for  the  assessment  of  additional  rent 
for  additional  area.  The  plaintiffs'  case 
under  9.  52  failed  but  in  the  lower  Appel- 


late Court,  the  learned  Judge  has  allowed 
additional  rent  for  additional  area  and  he 
has  arrived  at  his  conclusion  by  admitting 
in  evidence  a  certain  document,   a  memo- 
randum which  is  referred  to  in   his  judg- 
ment  as  showing  the  standard  of  measure- 
ment   in    Mahmudshahi    Parganna,      One 
ground  of  appeal  by  the  defendants  in  these 
two   appeals    is    that    this    memorandum 
should  not  have  been  admitted  in  evidence 
in   the  Appellate  Court  and  the   document 
is  further  attacked  on  the  ground  that  there 
is  nothing  to  show  that  the  measurement 
stated  in  the  memorandum  was  the  measure- 
ment prevailing  at  the  time  the  land  was 
originally  let  out,   that  is,  in  the  years  1866 
and   1898  and  it  is  further  objected  that 
there  is  no  evidence  to  show  in  what  cir- 
cumstances the  memorandum  was  prepared. 
We  think  this  objection    is  well  founded. 
The  document  has  been  produced  before  us 
— or  rather  a  certified  copy  thereof     It  bears 
no  date   and  there  is  nothing  to  show  how 
and  under  what  ciicumstances  it  was  pre- 
pared.      Some    suggestion  was    made  on 
behalf  of  the  respondents  that  it   was  pre- 
pared under  the  provisions  of  s    92,  sub- 
s.  (3)  of  the   Bengal  Tenancy  Act.     There  is 
nothing  to  show  this  and  under  the  circum- 
stances, we  do  not  think  that  the  document 
should  have  been  admitted  in  evidence     It 
is  suggested,  however,  that  three  rent  suits 
were  tried   together  and,  by  consent,    the 
evidence  taken  in  one  was  to  be  treated  as 
evidence  in  the  other    suits,  and  that  by 
madvertance  this    memorandum   was  only 
marked  in  the  suit  in  which  evidence  was 
taken,  but  this  is  really  a  conjecture  and 
is  not  founded  on  any  certainty  and  we  do 
not  think  that  we  should   be  justified   in 
acting  upon  it.    Moreover,  it  appears  that 
the  document  was  not  properly  admitted 
in  evidence  by  the  Appellate  Court.    The 
record  shows  that  a  petition  was  put  into 
which  the  document  was  attached    asking 
that  it  should  be  admitted  in  evidence  and 
that  on  this  petition  the  only  order  which 
was    made    was    "file  with    the    record/* 
Under  the  circumstances,  it  seems  to   us 
that  the  document  was  not  properly  admit- 
ted and  that  the  learned  Judge  should  not 
have  acted  upon   it.    Moreover,   even  if  it 
was  admitted,  for  the  reasons  which  I  have 
already  stated,  it  does  not  seem  to  us  that 
it  is  a  document  which  could  have    been 
relied  on  having  regard  to  the  absence  of 
any  evidence  of  the  circumstances  under 
which  it  was  prepared. 


602 


MUNICIPAL  COMMITTEE  t)   MILKHI  RAM. 


II.  0. 


For  these  reasons,  we  think,  that  the  appeals 
must  succeed.  We,  accordingly,  set  aside 
the  decrees  of  the  lower  Appellate  Court  and 
restore  the  judgment  of  the  learned  Assist- 
ant Settlement  Officer.  The  defendants- 
appellants  will  be  entitled  to  their  costs 
of  this  appeal  and  in  the  lower  Appellate 
Hearing- fee  3  gold  mohurs  in  each 


Court, 
case, 
z.  K. 


Appeals  allowed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  2354  OF  1924. 

May  25,  1925. 

Present: — Mr.  Justice  Abdul  Raoof. 

MUNICIPAL  COMMITTEE,  FEROZE- 

PORE  CITY— DEFENDANT— APPELLANT 

versus 

MILKHI  RAM  AND  ANOTHER— PLAINTIFFS 
— RESPONDENTS. 

Appeal,  second — Mala  fides,  whether  ([uestion  of  fact 
— Interference  by  High  Court 

A  finding  that  a  oeitam  action  of  a  Municipality 
was  prompted  by  mala  fides  is  a  tinding  of  fact,  and 
cannot  be  questioned  in  second  appeal 

Second  appeal  from  a  decree  of  the 
District  Judge,  Ferozepore,  dated  the  15th 
June  1924,  affirming  that  of  the  Junior  Sub- 
ordinate Judge,  Ferozepore,  dated  the  9th 
October  1923. 

Sheikh  Niaz  Muhammad,  for  the  Appel- 
lant 

Lala  Jagan  Nath  Aggarwal,  and  Mr. 
Mukand  Lai  Puri,  for  the  Respondents. 

JUDGMENT. — This  appeal  has  arisen 
out  of  a  suit  for  injunction  against  the 
Municipal  Committee  of  the  Ferozepur  City 
restraining  them  from  constructing  a  dram 
through  the  compound  of  the  plaintiffs.  It 
is  an  admitted  fact  that  an  alternative 
scheme  for  another  drain  prepared  by  a 
retired  Engineer  Sultan  Singh  had  been 
approved.  The  Municipal  Committee  by 
passing  a  certain  resolution  in  spite  of  the 
report  of  competent  authorities  that  the 
scheme  prepared  by  Sultan  Singh  was  most 
appropriate  and  less  expensive  approved  the 
scheme  prepared  by  one  Muhammad  Nawaz 
Khan.  The  objections  raised  by  the  plaintiffs 
were  overruled  as  being  barred  by  time. 
Hence  the  present  suit  was  instituted  on 
the  main  ground  that  the  Municipal  Com- 
mittee had  acted  mala  fide.  The  issue  to 


be  decided  in  the  case  was  whether  the 
action  of  the  Municipal  Committee  was 
mala  fide  and  whether  the  plaintiffs  are 
entitled  to  maintain  the  auit.  Both  the 
Courts  below  have  concurrently  found  that 
the  action  of  the  Municipal  Committee  was 
mala  fide.  The  lower  Appellate  Court, 
after  examining  all  the  relevant  authorities 
on  the  question  raised  in  the  case  and  after 
considering  the  various  resolutions  passed 
by  the  Municipal  Committee  from  time  to 
time  on  the  subject  and  after  discussing 
the  evidence  on  the  record,  recorded  the 
following  finding  : — 

"  This  action  of  the  Municipality  was 
tainted  with  mala  fi,des.  It  was  arbitrary, 
capricious,  wanton,  oppressive  and  un- 
reasonable/' 

Mr.  Jagan  Nath,  the  learned  Counsel 
for  the  respondent,  has  contended  that  this 
is  a  finding  of  fact  which  cannot  be  inter- 
fered with  in  second  appeal.  Mr.  Niaz 
Muhammad,  on  the  other  hand,  has  contend- 
ed that  these  are  conclusions  drawn  from 
the  facts  found  and  may  be  properly  treat- 
ed as  raising  questions  of  fact.  On  the 
facts  found  by  the  lower  Appellate  Court 
one  can  come  to  no  other  conclusion  than 
that  arrived  at  by  the  Court  below.  In 
Abdul  Samand  v.  Municipal  Committee  of 
Delhi  (1)  the  learned  Judges  held  that  the 
finding  aa  to  bona  fides  -under  circum- 
stances similar  to  those  in  the  present  case 
was  a  finding  of  fact.  In  my  opinion  there 
is  no  room  for  interference  in  second 
appeal. 

I,  therefore,  dismiss  the  appeal  with 
costs. 

The  preliminary  objection  which  was 
raised  before  Mr.  Justice  Harrison  was  not 
pressed  before  me  because  it  was  frankly 
admitted  by  Mr.  Jaggan  Nath,  the  learned 
Counsel  for  the  respondents  that  a  resolu- 
tion was  passed  authorising  Muhammad 
Nawaz  Khan  to  file  the  appeal. 

z.  K.  Appeal  dismissed. 

(1)  35  Tnd  Gas.  377,  75  P,  R.  1916,  140  P.  L.  R, 
1916,  154  P.  W.  R.  1916. 


1.  0.  1926] 


BENGAL  NORTH-WESTERN  RY.  V.  BANSI  DfiAR. 


603 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORBER  No  369  OP  1924. 

September  3,  1925. 
Present;—  Mr.  Justice  Devadoss  and 

Mr  Justice  Waller. 

M.  A.  R.  R  M,  P.  MUTHU  VEERAPPA 

CHBTT1AR—  PBTITIONBB—  CKBDITOB— 

APPELLANT 

versus 

U.  K.  8IVAQURUNATHA  PILLAL- 
DEBTORS-RESPONDENT. 

Provincial  Insolvency  Act  (V  of  1920},  s  2^—  Hindu 
Jjaw  —  Joint  family—  Debts  incurred  by  father  —  Sons, 
whether  can  be  adjudicated  insolvents 

In  the  case  of  *  joint  Hindu  family,  if  the  father 
incurs  debts  and  dies,  the  other  members  of  the 
family  do  not  stand  towards  him  m  the  relation  of 
heirs,  they  only  succeed  to  him  and  the  debts  are 
binding  upon  them  In  such  a  case  the  other  membeis 
are  liable  to  be  adjudicated  insolvents  in  respect  of 
the  debts  mcuired  by  the  father 

Appeal  against  an  order  of  the  District 
Judge,  Coimbatore,  dated  the  28th  August 
1924,  m  Insolvency  Petition  No.  43  of  1924 

Mr.  M.  Patanjah  Sastmar,  for  the  Appel- 
lant. 

Messrs.  T.  R.  Ramaehandra  Iyer  and  P. 
Balaknshna  Menon,  for  the  Respondent. 

JUDGMENT.—  This  is  an  appeal 
against  the  order  of  the  District  Judge  of 
Coimbatore  dismissing  the  appellant's  ap- 
plication to  adjudicate  the  respondent  an 
insolvent.  The  learned  Judge  dismissed 
the  application  on  the  ground  that  the  re- 
spondent should  not  be  adjudicated  in 
respect  of  his  father's  debt,  as  there  was  no 
personal  liability  on  the  part  of  the  respond- 
ent in  respect  of  such  debt.  The  petitioner 
in?his  petition  alleged  that  the  respondent 
was  pressed  to  pay  the  debt  due  to  him  and 
he  requested  the  petitioner  to  give  him  time 
to  collect  the  outstanchngs  and  pay  him. 
Taking  advantage  of  the  time  given  to  him, 
he  made  certain  alienations  in  favour  of 
certain  creditors  which  the  petitioner 
alleges  to  be  fraudulent  preferences.  There 
is  nothing  in  the  Insolvency  Act  which 
prevents  the  undivided  members  of  a  joint 
Hindu  family  from  being  adjudicated 
insolvents  in  respect  of  debts  due  by  the 
family.  Each  case  would  depend  upon  its 
circumstances.  If  the  petitioner  makes  the 
necessary  allegations  and  proves  them,  then 
the  Court  would  be  justified  in  adjudging 
the  members  of  a  joint  family  insolvents. 
In  the  case  of  a  joint  Hindu  family,  if  the 
father  incurs  debts,  and  dies,  the  other 
members  of  the  family  do  not  stand  in  the 
relation  of  heirs;  they  only  succeed  to  him 
tad  the  debts  are  binding  upon  them.  It 


was  laid  down  by  a  Bench  of  this  Court 
in  V.  S.  Rm  Chokahngam  Chettiar  v.  Tiru- 
venkatasami,  O.  M  A  No  47  of  1916  that 
the  relation  of  creditor  and  debtor  existed 
between  the  lender  and  the  members  of  a 
joint  family  in  respect  of  debts  incurred 
by  the  family  That  being  so,  there  was  BO 
reason  why  the  lower  Court  should  not 
have  enquired  into  the  matter  and  disposed 
of  the  petition  on  the  merits.  We,  tlieiefore, 
set  aside  the  order  and  direct  the  District 
Judge  to  restore  the  petition  to  file  and  dis- 
pose of  it  according  to  the  provisions  s.  24 
of  the  Provincial  Insolvency  Act.  Costs 
will  abide  the  result. 

v.  N.  v  Case  remanded. 

z  K. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No  524  OF  1924. 

December  14,  1925. 
Present  — Mr  Justice  Misra  and 

Mr  Justice    Ashworth. 
TttE  BENGAL  NORTH-WESTERN 
RAILWAY — DEFENDANTS — APPELLANTS 

versus 

BANSI  DIIAR  AND  OTHERS— PLAINTIFFS — 
RESPONDENTS. 

Carnage  of  goods— Railway  Company — Risk  Note  B 
— "Rabbet  y  from  running  tram"  whether  includes  theft 
-  "Wilful  neglect"  meaning  of —"Running  tram," 
meaning  of 

The  expression  "robbeiy  from  a  running  tram"  m 
Risk  Note  B  used  in  the  transmission  of  packages  on 
the  Kailway  does  not  include  theft  or  taking  without 
force  It  has  its  technical  meaning  assigned  to  it  by 
the  Penal  Oodo.  [p  606,  col  1J 

De  Rothschild  v  Royal  Mail  Steam  Packet  Company, 
(1852)  21  L  J  Kx  273,  7  Ex  734,  86  R  K  813,  155  K 
R  1115  and  Latham  v  Entity,  (1823)  107  E  R  290,  2 
B  &0  20,  referred  to 

Eaxt  Indian  Railway  Company  v  Fazal  Elahi,  85 
Ind  Cas  474,  L  R  6  A  53  Civ,  (1925;  A  1  R  (A ) 
273  47  A  130,  East  Indian  Railway  Company  v 
Nathmal-Behan  Lai,  39  Ind  Cas  130,  39  A  418,  15 
A  L  J  321  GIF  Railway  Co  v  Firm  Bhola 
Nath-Debi  Das,  70  Ind  Cas  854,  45  A  50,  (1923) 
A  I  R  (A  )  79  and  Gopal  Rai-Phul  Chand  v  G  1  P 
Railway  Co  ,  82  Ind  Cas  313,  46  A  837,  (1924)  A  L  R 
(A  )  621,  L  R  5  A  575  Civ  ,  not  followed 

( Wilful  neglect' as  used  m  the  Risk  Note  B  may  be 
taken  to  be  the  failure  of  a  person  to  take  any  reason- 
able measures  that  he  was  aware  01  should  have  been 
aware  were  likely  to  lessen  the  iisk  of  loss  of  a 
consignment  or  a  portion  of  it  [p.  606,  ool  2 1 

R  v  Downs,  (1876)  1  Q  B  D  25  at  p  30,  45  L,  J 
M  C  8,  33  L  T  675,  25  W  R  278,  13  Cox  0  C  111, 
referred  to. 

The  term  'running  train'  in  Risk  Note  B  does  not 


604 


BBNGAL  NORTH  WESTERN  RY.  V.  BANSI  DHAR. 


[92  I.  C.  1926] 


signify  that  the  train  must  actually  be  in  motion.  If 
the  train  is  on  its  jouiucy  from  one  destination  to 
another,  that  is,  from  junction  to  junction  it  cannot 
ba  said  that  the  tram  is  not  a  running  tram  simply 
because  it  stops  either  on  the  road-side  station  or  at 
any  place  between  the  road-aide  stations  [p.  608,  col.  1  ] 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Qonda,  dated  the  22nd  October 
1924,  reversing  that  of  the  Subordinate 
Judge,  Bahraich  dated  the  9th  February 
1923. 

Mr.  G.  N.  Mukerji,  for  the  Appellants. 

Mr.  B,  N.  Srivastava,  for  the  Respond- 
ents. 

JUDGMENT. 

Ashworth,  J.—  This  second  civil  ap- 
peal arises  out  of  a  suit  brought  by  the 
plaintiff-respondent  against  the  Bengal 
North  Western  Railway  Company,  through 
its  Agent  at  Gorakhpur,  for  damages  for 
non-delivery  of  one  out  of  four  packages  of 
cloth  booked  from  Howrah  on  the  East 
Indian  Railway  to  be  delivered  at  Nanpara 
on  the  Bengal  North  Western  Railway 
Company.  The  Subordinate  Judge  of 
Bahraich  dismissed  the  claim  on  the  findings 
that— 

(a)  The  fact  that  the  defendant-Railway 
Company  had  carried  the  goods  by  another 
route  than  that  specified  was  not  proved 
to  have  increased  the  risk  of  loss, 

(6)  The  loss  of  consignment  was  due  to 
theft  on  a  running  train  from  liability  for 
which  the  Railway  was  protected  by  the 
terms  of  the  Risk  Note  B. 

In  first  appeal  the  District  Judge  re- 
versed this  decision.  He  held  that  the 
Risk  Note  only  protected  the  Railway  from 
liability  for  robbery  from  a  running  train 
and  not  from  theft  from  a  running  train. 
He  held  thai  the  plaintiffs  had  sustained 
the  burden  of  proving  wilful  neglect  by 
the  Railway  Company  as  it  was  proved 
that  the  steps  taken  to  secure  the  goods 
against  loss  by  theft  were  inadequate.  In 
this  second  appeal  the  following  questions 
arise  for  determination. 

Did  the  carriage  of  the  goods  by  a 
longer  route  and  a  different  route  from  that 
specified  in  the  contract  amount  to  failure 
on  the  part  of  the  Railway  Company  to 
take  the  care  required  by  s  151  of  the  Con- 
tract Act  and,  if  so,  can  this  be  pleaded  in 
second  appeal  ? 

As  to  this  I  hold  that  in  second  appeal 
the  finding  of  the  first  Court  cannot  be 
reversed,  namely,  that  the  change  of  route 
did  aot  (toll  for  any  extra  risk  of  loss,  a 


finding  with  which  I  should  be  disposed 
to  agree  on  the  facts. 

Does  the  expression  in  the  Risk  Note 
"robbery  from  a  running  train11  mean  rob- 
bery from  a  train  in  motion  or  robbery 
from  a  train  from  "junction  to  junction" 
(to  adopt  the  explanation  submitted  by  the 
Railway)?  In  view  of  my  findings  on  the 
other  questions  it  is  not  really  necessary  to 
decide  this.  It  may,  however,  be  pointed 
out  that  the  term  "running  train"  must 
be  construed  in  the  ordinary  sense  of  the 
expression  as  used  by  the  public  inasmuch 
as  the  Railway  Company  did  not  put  for- 
ward any  evidence  to  show  that  the  term 
xvas  a  technical  term  with  a  special  mean- 
ing. Thus  construed,  however,  I  am  of  the 
opinion  that  if  the  meaning  merely  had 
been  a  train  in  motion,  the  expression  "a 
train  in  motion"  would  have  been  used  and 
not  a  "running  train.11  I  am  disposed  to 
hold  that  a  train  is  still  a  running  train 
even  though  it  stops  on  stations  en-route 
and  certainly  even  though  it  stops  on 
stations  en-route  and  certainly  even  though 
it  stops  when  held  up  by  a  signal.  In 
adopting  this  meaning  I  am  following  a 
view  taken  in  East  Indian  Railway  Com- 
pany v.  Fazal  Elahi  (I)  by  Mr.  Justice 
Boys  of  the  Allahabad  High  Court.  The 
case  is  reported  in  85  Indian  Cases  474. 

Is  the  word  "robbery11  in  the  expres- 
sion "robbery  from  a  running  train"  merely 
equivalent  to  the  word  "theft"?  This  is 
one  of  the  most  important  questions  in 
this  case.  There  is  no  doubt  considerable 
authority  for  holding  in  the  affirmative. 
I  have  been  referred  to  East  Indian  Rail- 
way Company  v.  Nathmal-Behari  Lai  (2). 
It  is  there  stated  that  the  Judges,  Richard, 
0.  J.,  and  Banerji,  J.,  although^  was  per- 
haps unnecessary  for  the  decision  of  the 
case,  doubted  very  much  whether  the  ex- 
pression "robbery  from  a  running  train11 
in  the  contract  meant  anything  else  than 
an  ordinary  theft.  It  will  be  seen  that 
this  view  was  merely  an  obiter  dictum, 
and  was  supported  by  no  reasoning 
or  explanation.  Again  in  G  I.  P.  Rail- 
way Co.,  Ltd.  v.  Firm  Bhola  Nath-Debi 
Das  (3)  Mr.  Justice  Ryves  slates  that  he 
disagreed  with  the  view  of  the  Judge  of 
the  Court  of  Small  Causes  which  was  that 
robbery  from  a  running  train  meant  some 

(1>  85  Ind  Gas.  474;  L.  R.  6  A.  59  Civ;  (1925)  A  1 
B  (A  )  273;  47  A.  136 

(2  39  Ind.  Gas.  130;  39  A.  418;  15  A.  L.  J.  321. 
(3)  70  Ind,  Qae.  854;  45  A,  56;  (1923)  Af  L  «,  (A,)  79* 


[921.  0.1926] 

thing  very  much  more  serious  than  theit 
from  a  running  train,  and  that  the  idea  of 
the  contract  was  to  protect  the  Railway 
from  being  liable  for  an  attack  by  a  band 
of  robbers,  an  accident  of  the  same  cate- 
gory as  some  unexpected  act  of  providence 
and  expressed  his  own  opinion  as  follows-  — 

"It  seems  to  me  that  robbery  as  used 
really  is  synonymous  with  theft  and  not 
in  the  sense  as  defined  in  the  Penal  Code,1 

It  appears  to  me  that  in  this  pronounce- 
ment Mr.  Justice  Ryves  after  setting  forth 
an  excellent  reason  for  the  contrary  view 
has'  dismissed  that  view  without  giving 
any  reason  for  doing  so  except  his  own 
impression.  I  am  next  referred  to  Gopal 
Rai-Phul  Chand  v.  G.  I.  P.  Railway  Co. 
(4).  In  this  case  Justices  Daniels  and 
Weave  held  robbery  synonymous  with 
theft  merely  on  the  basis  of  the  two  de- 
cisions mentioned.  They  furnish  no  other 
reason  for  so  holding.  Again  I  am  referred 
to  a  ruling  of  the  Madras  High  Court,  B.  B. 
and  C.  I.  Railway  Co.,  Ltd  v.  Firm  Natta]i 
Pratapchand  (5)  In  this"  case  at  page 
80*  Mr.  Justice  Ramesam  states  "1  as- 
sume robbery  in  the  Form  B  is  equivalent 
to  theft1'.  He  bases  this  assumption 
upon  the  case  already  mentioned,  G,  1  P. 
Railway  Co,  Ltd.  v.  Firm  Bhola  Nath 
Debi  Das  (3).  Thus  it  will  be  seen  that 
in  none  of  these  rulings  is  the  ratio  de- 
cidendi  set  forth.  That  the  view  taken, 
however,  was  not  merely  a  capricious  view 
can  be  shown  by  •  reference  to  an  English 
case,  namely,  the  case  of  De  Rothschild  v. 
Royal  Mail  Steam  Packet  Company  (6). 
This  case  was  cited  by  the  respondent  as 
authority  for  holding  that  robbery  in  a  Risk 
Note  should  not  be  construed  as  synony- 
mous with  theft.  The  case  does  not  support 
this  contention  thus  generally  expressed, 
though,  in  my  opinion,  it  does  supply  an 
argument  for  holding  that  "robbery"  as 
used  in  this  Risk  Note  is  not  synonymous 
with  theft.  It  will  be  observed  that  in 
this  Risk  Note  B  the  word  "robbery11  is 
preceded  by  the  word  "fire11  in  the  clause, 
"provided  the  term  *  wilful  neglect'  be  not 
held  to  include  fire,  robbery  from  a  run- 
ning train  or  any  other  unforeseen  event 
or  accident11.  In  that  case  Pollock,  C.  B., 

(4)82Ind    Gas   313,  46  A  837,  (1924)  A.   I    R     (A) 
621,  L  R  5  A  575  Civ 

(5)  87  Ind  Gas  79,  48  M  L  J   400,  (1925)  M.   W,  N. 
186J.21  L  W.  728,  (1923)  A.  I  R  (M )  745 

(6)  (1852)  21  L.  J.  Ex.  273,  7  Ex.  734,  86  R    R  813; 
1'55  E  R.  1145    

erf  fc7  IncU  " 


BENGAL  NOJITH  WESTERN  RT.  V.  BANSI  DHAR, 


'665 


pointed  out  that  he  agreed  with  the  con- 
tention that  the  word  "robbers"  in  Risk 
Notes  generally  must  be  construed  accord- 
ing to  the  ordinary  meaning  of  the  word, 
and  not  in  the  technical  sense  given  to  the 
word  by  the  English  Law  and  by  some  of 
the  English  Statutes,  for  two  reasons.  Cue 
was  that  the  technical  meaning  was  a  feloni- 
ous taking  from  a  person  by  another,  and 
that  it  could  not  be  considered  applicable 
to  the  case  where  packages  were  not  in 
the  personal  presence  of  the  Railway  Com- 
pany or  their  servants  The  other  reason 
was  that  there  were  many  English  Statutes 
where  the  meaning  given  by  various  deci- 
sions to  the  expression  robbers  or  robbery 
was  much  more  comprehensive  than  the 
technical  meaning,  and  included  the  tak- 
ing without  force  After,  however,  making 
these  remarks  about  Risk  Notes  in  general- 
Pollock,  C.  B.  added  that  "Considerations 
applicable  to  Risk  Notes  in  general  must 
be  modified  by  considerations  of  the 
particular  circumstances  under  which 
a  particular  Risk  Note  was  made.11  He 
held  that  in  the  case  before  him  the 
circumstances  and  also  the  conjunction  of 
the  word  "robbers"  with  the  word  "pirates11 
was  sufficient  to  indicate  that  the  paitiea 
did  not  mean  the  defendant  Company  to 
be  exempted  from  pilfering  by  thieves. 
From  this  ruling  then  I  obtain  the  conclu- 
sion that  "robbery11  in  ordinary  parlance 
would  include  the  taking  without  force, 
but  that  the  adoption  of  the  ordinary  mean- 
ing might  be  negatived  by  the  particular 
context  of  an  agreement.  Another  English 
case  which  is  instructive  is  Latham  v. 
Rutley  (7).  In  this  case  the  expression  of 
the  contiact  was  "fire  and  robbeiy  except- 
ed11  The  Judge  left  to  the  Jury  the 
question  whether  robbery  would  include 
theft  of  the  paicel  at  the  wagon  office 
in  London  before  despatch  by  train,  and 
the  Jury  decided  that  it  would  not  cover 
this.  The  only  importance  of  this  case  is 
that  the  meaning  of  the  word  "robbery" 
was  left  to  the  J  ury.  Now  it  appears  to 
me  that  the  reasoning  set  forth  in  the  case 
of  De  Rothschild  v  The  Royal  Mail  Steam 
Packet  Company  (6)  for  holding  that  rob- 
bery in  Risk  Notes  generally  will  include 
thett  without  violence  is  not  applicable  in 
India.  The  definition  of  robbery  in  India 
is  by  reference  to  the  definition  of  theft, 

and  the  definition  of  theft  is   "taking 

,,,out  of    the   possession  of   any  peison," 
H)  (1823)  107  E,  R,  290,  2  B.  &;C,  20, 


606 


NORTH-WfeStfellN  ftY,  V.  BAftS* 


Goods  may  be  in  the  possession  of  a  Rail- 
way Company  even  though  they  will  cot 
be  on  its  person  or  on  the  person  of  its 
servants.  Again  in  India  we  are  not  em- 
barrassed, so  far  as  I  am  aware,  by  any 
Statutes  using  the  word  "robbery"  in  the 
sense  "theft  without  violence".  On  the 
other  hand  ever  since  the  passing  of  the 
Indian  Penal  Code  in  1860  with  its  defini- 
tion of  robbery  as  theft  with  violence  or 
show  of  violence  it  is  reasonable  to  sup- 
pose that  the  public  would  attach  to  the 
word  robbery  the  technical  meaning.  Again 
it  is  to  be  observed  that  this  Risk  Note 
B  is  one  which,  under  s.  72  (2)  (6)  of  the 
Indian  Railways  Act  (IX  of  1890),  has  to 
be  in  a  form  approved  by  the  Governor 
General  in  Council.  This  means  that  it 
has  to  be  passed  by  the  Legal  Advisers  of 
the  Government  of  India.  It  appears  to  me 
inconceivable  that  the  Legislative  Depart- 
ment of  the  Government  of  India  would 
allow  the  expression  ''robbery11  to  be  used 
where  it  was  intended  to  express  "theft.11 
Lastly  it  will  be  seen  in  Risk  Note  B  that 
the  ^word  "robbery"  immediately  follows 
"fire"  and  thafe  it  is  followed  by  the  words 
"or  any  other  unforeseen  event  or  accident.11 
Theft  without  violence  cannot  be  consider- 
ed as  an  unforeseen  event  or  accident.  I 
consider  that  the  context  in  any  case  would 
prevent  the  word  "robbery"  from  being 
construed  as  synonymous  with  theft  without 
violence. 

On  the  evidence  should  the    defendant 
Railway  Comparny  be  held  liable  for  the 
loss  of  the  package,  as  a  loss  attributable  to 
wilful  neglect  on  its  part  or  on  the  part  of 
its  servants  ?    The  decision  of  the  previous 
question  disposes  of    the  plea  that  there 
cannot  have  been  wilful  neglect  within  the 
meaning  of  the  Risk  Note.    But  the  ques- 
tion remains    whether  on    the  facts  such 
wilful  neglect  is  proved.    The  established 
facts  are  that  the  package  must  have  been 
stolen  on   the  Bengal  and  North  Western 
Railway  line  between  Itiathok  and  Gonda, 
and  that  it  was  probably  stolen  when  the 
train  was  brought  to  a  stop  by  an  inter- 
station    signal  or  when    it  was    travelling 
slowly  and  that  the  wagon  containing  the 
consignment  was  only  secured  by  a  sealed 
label  and  by  no  lock.    On  these  facts  the 
lower  Court  found  wilful  negligence  estab- 
lished and  as  a  question  of  fact.    On  behalf 
of  the  appellant  Railway  Company  it  ia  not 
urged  that  the  wagon  door  could  not  have 
been  more   securely  fastened,  but    it   is 


[92 1.  0. 192«} 

urged  that^the  securing  of  wagons  by  locks 
is  a  practical  impossibility  for  various  re- 
asons and  has  been  proved  such  by  trial.    I 
will  assume,    (without    admitting    in  the 
absence  of    evidence  on    the    point)   that 
the  Railway  could  not  introduce  the  use 
of  locks    universally    without    dislocation 
of     their     arrangements   for  transfer    of 
packages  or  without  incurring  expense  in- 
consistent   with    the  present     rules     for 
carriage.    But  if  this  is  so,  I  consider  that 
this  impossibility  may  furnish  a  case  for 
alteration  of  the  law  or  for  variation  of  the 
terms  of  the  Risk  Note  (used  in  this  case), 
but  it  will  furnish  no  defence  to  the  present 
claim.    Wilful  neglect  as  used  in  the  Risk 
Note  may  be  taken  to  be  failure  of  a  person 
to  take  any  reasonable    measures  that  he 
was  aware  or  should  have  been  aware  were 
likely  to  lessen  the  risk  of  loss  of  a  con- 
signment or  a  portion  of  it.  see  the  remarks 
of    Lord    Coleridge  in     R.   v.    Downs  (S). 
Now  it  may  make  all  the  difference  what 
measures    are  reasonable  whether  we  are 
considering  the' total  body  of  consignments 
received  by  a  Railway  Company  or  only  a 
particular  consignment  from  a  single  in- 
dividual.    The  argument    of  the    imprac- 
ticability of  introducing  a  general  system 
of  locks  is  based  on  consideration  of  the 
former  and  not  on  the  latter.  It  is  obviously 
practicable  to  lock  a  single  wagon,  and  it 
cannot    be  doubted    that  if    the  Railway 
Company  were  only  concerned  with  a  single 
wagon  load    it  would  secure  the  doors  of 
the  wagon  by  a  safer  method  than  a  mere 
sealed  label.    I  consider  that  s.   151  of  the 
Contiact  Act  read  with  s.  148  requires  that 
the  conduct  of  the  Railway  Company  should 
be  judged  on  the  consideration,  merely  of 
the  one    consignment.    Section  151  reads 
"In  all  cases  of  bailment  the  bailee  is  bound 
to    take  as  much  care  of  the  goods  bailed 
to  him  as  a  man  of  ordinary  prudence  would, 
under  simlar    circumstances,  take  of   his 
own  goods  of  the  same  bulk,  quality  and 
value  as  the    goods  bailed".    Section  148 
defines  a  "bailment"  as  the    "delivery  of 
goods  by  one  person  to    another  for  some 
purpose,  upon  a  contract  that  they  shall, 
when  the     purpose  is    accomplished,    be 
returned  or  otherwise  disposed  of  according 
to  the  directions  of  the  person    delivering 
them."    The  care,  therefore,  that  the  Kail- 
way  Company  has  to  take  is  the  same  care 
that    a  man  of    ordinary  prudence  would* 

(8)  (187$)  1  Q.  B.  D.  25  at  p.  30;  45  L.  J,  M.  0.  8;  33 
L,  T,  075;  25  W,  R,  27$  13  Oox  0.  0.  Ill, 


I.  6. 


BENGAL  NO&TH-V9E8TBRN  RY.  t>.  BANSI  BHAfe. 


60t 


take  of  the  single  consignment.  It  cannot  in- 
voke considerations  arising  from  the  volume 
of  the  Railway  business.  Any  man  of  ordinary 
prudence  when  carrying  a  single  consign- 
ment of  a  goods  worth  Rs.  J,000  would  secure 
the  wagon  by  something  more  effectual  than 
a  sealed  label.  I  hold  that  the  lower  Appel- 
late Court  was  entitled  to  come  to  a  finding 
that  there  was  wilful  neglect  on  the  finding 
that  the  wagon  was  only  secured  by  a  seal- 
ed label.  I  prefer  in  this  respect  to  follow  the 
decision  of  the  Allahabad  High  Court  in  the 
case  of  Bengal  and  North  Western  Railway 
Company  v.  Haji  Mutsaddi  (9)  rather  than 
the  decision  in  Firm  Bhagai  Ram-Bhadur 
Ram  v.  Bengal  North-Western  Railway  (10). 
I  dp  not  agree  with  the  later  decision  so  far 
as  it  holds  that  no  finding  of  wilful  neglect 
would  be  based  on  the  failure  of  a  Railway 
Company  to  secure  a  wagon  by  anything 
better  than  a  sealed  label  on  one  side.  In 
second  appeal  I  hold  that  1  am  bound  by 
the  finding  of  fact  of  the  lower  Appellate 
Court  that  there  was  wilful  neglect  which 
finding  does  not  appear  to  me  to  have  been 
vitiated  by  any  disregard  of  any  rule  of  law 
or  by  any  self-misdirection  on  the  part  of 
the  Judge. 

I  would,  therefore,  dismiss  the  appeal 
with  costs. 

Misra,  J. — I  am  of  the  same  opinion. 
It  appears  to  me  that  there  are  only  three 
points  involved  in  the  appeal.  They  may 
be  stated  as  follows  :  — 

(1)  Whether  the   Railway  Company  was 
guilty  of  wilful  neglect  ? 

(2)  Whether  the  word  u  robbery  "  used  in 
the  Risk  Note  Form  B  includes  "theft"? 

(3)  Whethfer  the  word  "  running   train " 
would  include  a  train    stopped  on  the  way 
while    going  from    one  destination  to  ah- 
other  ? 

I  proceed  to  give  my  opinion  with  regard 
to  each  of  these  points. 

Regarding  the  first  point  it  appears  to 
me  that  the  burden  of  proving  wilful 
neglect  by  the  Railway  Administration  or 
its  servants  initially  lies  on  the  plaintiff,  but 
the  plaintiff  is  entitled  to  ask  the  Court 
to  infer  it  from  the  fact  that  steps  taken 
by  the  Company  to  secure  goods  against 
loss  of  theft  were  inadequate.  It  was  con- 
teiSied  before  119  on  behalf  of  the  Railway 
Company  that  it  would  be  impossible  for 
the  Company  to  secure  large  number  of 

(9)  7  Ind.  Gas.  160;  7  A.  L.  J.  833. 

(10)  87  Ind,  CM  215;  1 0,  W.  N.  766;  (1925)  A.  I.  K. 
ML 


wagons  in  a  goods  train  by  means  of 
padlocks,  still  more  so  by  means  of  pad- 
locks which  would  not  be  liable  to  being 
tampered  with.  This  may  be  correct  to  some 
extent.  Indeed  it  has  been  held  so  in  many 
cases,  but  I  feel— if  the  liability  of  the 
Railway  Company  is  that  of  an  ordinary 
bailee  as  defined  in  s.  151  of  the  Contract 
Act,  it  being  only  modified  to  the  extent 
stated  in  the  Risk  Note,  the  Railway  Com- 
pany must  show  that  they  did  all  that 
they  could  do  in  order  to  protect  the  goods 
bailed  to  them  from  loss  or  destruction.  It 
appears  to  me  that  merely  sealing  the 
wagon  is  not  affording  sufficient  protection 
to  the  goods  conveyed  by  .those  wagons 
from  being  stolen.  It  may  be  that  the 
securing  of  the  wagons  by  padlocks  cannot 
afford  complete  protection  against  theft  or 
pilfering,  but  it  must  be  admitted  that  it 
certainly  affords  greater  protection  than 
merely  leaving  those  wagons  unlocked.  As 
stated  by  the  learned  District  Judge  it  was 
brought  to  his  notice  by  the  representative 
of  the  Railway  Company  present  in  his 
Court  that  after  having  tried  the  "patent 
locks  they  have  now  invented  a  system  of 
locking  which  ensures  immunity  from  theft, 
If  at  the  time  that  such  padlocks  were 
introduced  the  Railway  Company  had 
taken  all  the  care  which  it  was  their  duty 
to  take  they  should  have  given  evidence 
to  show  that  they  did  take  that  amount  of 
care.  For  instance  if  they  had  shown  that 
they  kept  a  sufficient  number  of  men  ready 
to  watch  the  train  in  case  it  was  stopped 
either  at  the  station  or  at  any  place  between 
two  stations,  it  could  be  said  on  behalf  of 
the  Railway  Company  that  they  had  done 
all  which  was  in  their  power  to  do. 

I  am,  therefore,  of  opinion  that  the 
Railway  Company  in  merely  sealing  the 
wagons  but  not  fastening  them  in  a  way 
so  as  to  protect  them  from  being  opened 
while  on  the  way  they  were  guilty  of  what  is 
termed  in  the  Risk  Note  as  wilful  neglect. 
I  am  supported  in  this  opinion  by  the 
judgment  of  KanhaiyaLal,  J.  C.,  in  the  case 
of  Rohilkhand  and  Kumaon  Railway  C., 
v.  Baj  Raj  (11),  in  which  the  learned  Judge 
followed  the  decision  of  the  Allahabad  High 
Court  reported  as  Bengal  and  North  Western 
Railway  Co.  v.  Haji  Mutsaddi  (9)  quoted 
by  my  learned  brother  in  his  judgment. 

Regarding  the  second  question  I  entirely 
agree  with  the  view  taken  by  my  learned 

(11)  72  Ind.  Caa.  428,  10  0,  L,  J,  58,  9  0,  A  A;L.  R, 
421;(1923)A.I.R.(0.)212, 


LALMAN  V.  SH1AM  SINGH. 


I.  0. 


brother  who  has  discussed  the  entire  aspect 
of  the  question  in  great  detail.  It  is  im- 
possible to  argue  that  the  Legislature  in 
using  the  word  "  robbery"  intended  to  use 
it  in  the  sense  conveyed  by  the  word  "  theft.'1 
It  is  needless  to  say  that  the  word  ."rob- 
bery "  implies  violence  while  "  theft "  does 
not  import  any  such  notion.  Reading 
the  word  "  robbery "  in  the  light  of  the 
context  of  the  Risk  Note  in  which  the  word 
occurs,  it  appears  that  the  idea  was  to 
indicate  the  loss  of  goods  in  a  manner  in 
which  it  would  be  impossible  for  the  Rail- 
way Company  to  avoid  it.  It  couldfbe  too 
much  to  expect  from  the  Railway  Company 
to  engage  either  on  the  road-side  stations 
or  on  the  running  trains  staff  enough  to 
protect  the  trains  from  violent  attacks 
which  one  would  expect  in  the  case  of  a 
robbery.  It,  therefore,  appears  to  me  to  be 
reasonable  to  infer  that  when  the  word 
"  robbery"  was  used  in  the  Risk  Note  it  was 
intended  to  cover  the  case  of  a  loss  of  goods 
which  was  due  to  violence. 

Regarding  the  third  point  relating  to  the 
definition  of  the  word  "running  train"! 
am  of  opinion  that  the  term  does  not  signify 
that  the  train  must  actually  be  in  motion. 
If  the  train  is  on  its  journey  from  one 
destination  to  another  that  is  from  junction 
to  junction,  to  use  the  common  expression, 
it  cannot  be  said  that  the  train  is  not  a 
running  train  simply  because  it  stops 
either  on  the  road-side  station  or  at  any 
place  between  the  two  road-side  stations. 

Under  these  circumstances,  it  appears  to 
me  that  in  the  case  which  we  have  before 
us,  the  Railway  Company  did  not  take 
sufficient  care  of  the  goods  as  they  were 
expected  to  take  of  them  in  law  and  they 
were,  therefore,  guilty  of  wilful  neglect. 
They  cannot  protect  themselves  by  alleging 
that  the  goods  were  lost  in  the  way  while 
the  train  was  running,  in  other  words  to 
avail  themselves  of  the  clause  entered  in  the 
Risk  Note  by  virtue  of  which  the  Railway 
Company  would  be  protected  if  there  oc- 
curred a  " robbery  in  the  running  train." 

I,  therefore,  concur  in  the  order  proposed 
by  my  learned  brother. 

Regarding  the  a  cross-objection  filed  by 
the  plaintiff  relating  to  costs  the  learned 
District  Judge  has  given  cogent  reasons 
in  his  judgment  for  disallowing  the  costs 
of  the  suit  to  the  plaintiff  and  I  am  not 
prepared  to  interfere  with  his  discretion  in 
this  matter  in  second,  appeal.  I  would, 


therefore,  dismiss  the  plaintiff's  cross-objec* 
tion  as  well. 

The  appeal  and  the  cross- objection  both 
fail  and  are  dismissed  with  costs. 

By  the  Court*— The  appeal  is  dismiss- 
ed. The  cross- objection  is  also  dismissed 
with  costs. 

G.  H.  Appeal  dismissed. 

N.  H, 


ALLAHABAD  HIGH  COURT. 

EXECUTION  FIKST  APPEAL  No.  333  OF  I'j25. 

December  1,  1925. 
Present: — Mr.  Justice  Dalai  and 

Mr.  Justice  Boys. 

LALMAN  AND  ANOTHER — OBJECTORS — 
APPELLANTS 

versus 

Chaudhri  SHIAM  SINGH— 
DECREE- HOLDER — RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  190S),  0.  XXIV,  r  5 
— Mortgage  suit — Preliminary  decree — Appeal — Final 
decree,  when  can  be  passed 

Where  an  appeal  has  beeli  preferred  against  a 
preliminary  decree  passed  in  a  mortgage  suit,  a  final 
decree  can  be  passed  only  after  the  preliminary  decree 
has  been  confirmed  or  varied  by  the  Appellate  Court' 
and  has  become  conclusive  between  the  parties  [p. 
609,  col  I] 

Execution  first  appeal  from  a  decree  of 
the  Subordinate  Judge,  Mainpuri,  dated 
the  1st  of  June  1925. 

Mr.  U.  S.  Bajpai,  for  the  Appellants. 

Mr.  Baleshwari  Prasad,  for  the  Respond- 
ent. 

JUDGMENT*— A  preliminary  decree 
for  sale  of  property  was  passed  by  the  first 
Court  of  the  Subordinate  Judge  of  Main- 
puri on  the  15th  of  April  1921.  The  defend- 
ant mortgagor  appealed  against  this  decree 
to  this  Court  on  the  22nd  of  July  1921.  While 
theappeal  was  pending  the  mortgagee  appli- 
ed under  O.  XXXIV,  r  5  (2)  of  the  0.  P. 
C.  for  a  final  decree  for  sale  and  such 
a  final  decree  was  passed  by  the  Subordi- 
nate Judge  on  the  19th  of  August*  1922. 
The  appeal  to  this  Court  was  dismissed  with 
costs  on  the  13th  of  February  1924. 

The  mortgagee  applied  to  the  Court  of 
the  Subordinate  Judge  for  execution  of  the 
final  decree  dated  the  19th  of  August  19225 
and  to  the  amount  of  that  decree  he  added 
the  amount  of  costs  granted  by  this  Court 
under  its  decree  dated  the  13th  of  February 
1924.  The  lower  Court  directed  execution 
to  take  place  though  the  judgment-debtor 
objected  ou  the  ground  that  the  final  decree 


LALMAN  V.  SHIAM 


[9$  I.  0. 

df  the  19th  of  August  1922  was  not  one 
binding  between  the  parties  as  it  was  obtain- 
e<*  on  I*1®  basis  of  a  preliminary  decree 
*rhich  had  not  become  final  between  the 
parties. 

This  is  an  appeal  from  an  order  in  the 
execution  department  passed  by  the  Sub- 
ordinate Judge  for  the  sale  of  property. 
The  first  ground  of  appeal  raises  the  objec- 
tion that  the  final  decree  of  the  19th  of  August 
1922  had  been  obtained  before  the  preli- 
minary decree  between  the  parties  became 
conclusive  and  so  no  execution  proceed- 
ings can  be  taken  on  the  basis  of  that 
final  decree.  We  think  that  this  argument 
must  prevail  on  the  basis  of  the  Full  Bench 
decision  of  this  Court  in  Gajadhar  Singh 
v.  Kishen  Jiwan  Lai  (1).  It  was  held  in 
that  case  by  three  learned  Judges  of  this 
Court  that  the  right  of  the  plaintiff  in  a 
suit  for  sale  to  apply  for  a  final  decree  ac- 
crued when  the  decree  of  the  High  Court 
Was  passed  and  not  on  the  expiry  of  the  six 
months  allowed  for  payment  by  the  Court 
of  first  instance  The  learned  Judge,  Mr. 
Justice  Banerji,  who  delivered  the  judg- 
ment of  the  Court  reconsidered  a  decision 
he  had  previously  delivered  as  a  member  of 
a  Bench  of  two  Judges  in  Madho  Ram  v. 
Nihal  Singh  (2).  The  learned  Counsel  for 
the  respondent  here  desired  the  Court  to 
hold  that  the  Full  Bench  judgment  only 
-covered  the  question  of  limitation  and  that 
a  mortgagee  was  at  liberty  to  apply  for  a 
final  decree  either  on  the  basis  of  the  preli- 
minary decree  of  the  Trial  Court  or  on  the 
basis  of  the  preliminary  decree  of  the  High 
CoarUn  appeal.  This  argument  is  specifically 
negatived  by  the  learned  Judge,  Mr.  Justice 
Banerji.  He  said  "It  seems  to  me  that 
O.  XXXIV,  r.  5  of  the  C.  P.  C,  contemplates 
the  passing  of  only  one  final  decree  in  a 
suit  for  sale  upon  a  mort  gage.  The  essen- 
tial Condition  to  the  making  of  a  final  dec- 
ree is  the  existence  of  a  preliminary  decree 
which  has  become  conclusive  between  the 
parties.  When  an  appeal  has  been  preferr- 
ed^ it  is  the  decree  of  the  Appellate  Court 
which  is  the  final  decree  in  the  cause11.  It 
is  clear,  therefore,  that  there  can  be  only 
one  final  decree  in  a  suit  for  sale  and  not 
more  than  one  and  that  this  final  decree  can 
be  passed  only  after  the  preliminary  dec- 
ree has  been  confirmed  or  varied  by  this 
Court  in  appeal.  The  learned  Counsel  for 
the  respondent  further  argued  that  though 

W  9?a  93;  39  A* W1-  15  A-  L-  J-  731< 
lad,  Gas.  494;  38  A,  21;  ISA,  JU  J,  865, 

38 


the  mortgagee  may  not  have  the  right 
to  apply  for  a  final  decree  there  was 
an  inherent  jurisdiction  in  the  Court 
to  grant  such  a  decree  even  wrongly. 
According  to  him,  therefore,  the  final  decree 
of  the  19th  of  August  1922,  is  binding  bet- 
ween the  parties  and  the  mortgagee  is  en- 
titled to  execute  it.  The  simple  answer  to 
it  is  that  the  mortgagee  does  not  come 
merely  on  the  basis  of  that  decree  as  hav- 
ing been  passed  in  his  favour  rightly  or 
wrongly.  He  includes  in  his  application 
for  execution  the  costs  awarded  to  him  "by 
the  High  Court  as  well  and  it  is  clear  that 
he  has  in  contemplation  the  correct  final 
decree  which  ought  to  be  passed  in  the  suit* 
Such  a  correct  decree  has  not  yet  been 
passed  so  there  can  be  no  question  of  its 
execution. 

The  Bench  ruling  in  the  case  of  Dambar 
Singh  v.  Kallyan  Singh  (3)  referred  to  by 
the  respondent's  learned  Counsel  does  not 
apply  here.  In  that  case  application  waa 
made  for  a  final  decree  for  sale  after  the 
preliminary  decree  had  received  final  adjudi- 
cation from  this  Court  and  the  right  had 
accrued  to  the  decree- holder  to  apply  for 
a  final  decree.  Through  some  mistake  the 
decree-holder  did  not  include  the  costs  of 
the  two  Appellate  Courts  in  his  application 
for  a  final  decree  and  in  substance  the 
final  decree  embodied  the  terms  of  the 
preliminary  decree  of  the  Trial  Court,  In 
the  present  case,  the  final  decree  was  obtain- 
ed when  the  right  had  not  accrued  to  the 
decree-holder  to  apply  for  one.  Secondly, 
in  the  other  case,  execution  had  once  before 
been  taken  out  of  the  final  decree  to  which 
the  judgment-debtor  had  made  no  objection 
and  had  actually  paid  a  portion  of  the  decre- 
tal amount.  Objection  was  taken  when 
execution  was  taken  out  for  a  second  time 
and  the  principle  of  res  judicata  was  appli- 
ed against  the  judgment-debtor,  because,  to 
quote  the  words  of  the  learned  Judges 
"when,  the  first  application  for  execution 
was  made  he  did  not  raise  this  objection." 
In  the  case  before  us  it  is  the  first  execution 
of  the  final  decree  which  is  objected  to  and 
stay  of  execution  in  the  Trial  Court  at  the 
request  of  the  judgment-debtor  did  not 
imply  an  acceptance  of  the  decree  by  him. 

There  will  be  no  hardship  to  the  res- 
pondent in  applying  for  a  final  decree  on 
foot  of  the  preliminary  decree  of  this  Court 

(3)  65  lad.  Cas  799;  20  A  L,  J,  170;  (1922)  A  I,  R§ 
(A.)  27;  44  A  350  '  '  ' 


(ilO  MtJKldlPAL  cbuNClL  1?. 

of  the  13th  of  February  1924  because  the 
application  will  still  be  within  limitation. 

In  the  result  we  decree  this  appeal  and 
reject  the  respondent's  application  for 
execution  of  the  final  decree  of  the  19th  of 
August  1922,  Having  regard  to  the  cir- 
cumstances of  the  wcase  we  pass  no  orders 
as  to  costs. 

z,  K.  Appeal  accepted. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION    No.  553 

OF  1923. 

September  21,  1925. 
Present: — Mr.  Justice  Spencer  and 

Mr.  Justice  Madhavan  Nair. 
THE  MUNICIPAL  COUNCIL,  TUTI- 
CORIN,  BY  ITS  CHAIRMAN— DEPENDANT— 
PETITIONER 

versus 

T.  SHUNMUGHA  MOOPANAR- 
PLAINTJ  FF — RESPONDENT. 

Madras  District  Municipalities  Act  (V  of  1920\ 
*,  2Jf9t  Sch.  T7,  cl.  (o)— "Grain,"  whether  includes  rice, 
and  broken  rice. 

The  word  "grain"  in  cl  (o)  of  Sch.  V  to  the  Madras 
District  Municipalities  Act  does  not  include  rice  and 
broken  rice,  [p,  610,  col.  2;  p.  612,  col.  1.] 

Cotton  v.  Vogan,  (1896)  A.  0.457,  65  L,  J.  Q.  B  486; 
74  L.  T,  591;  61  J.  P.  36,  followed. 

Petition,  under  s.  25  of  Act  IX  of  1887, 
praying  the  High  Court  to  revise  a  decree 
of  the  Court  of  the  District  Munsif  of  Tuti- 
corin,  dated  18th  December  1922  in  8.  0.  S. 
No.  858  of  1922. 

Mr.  B.  Sitaram  Rao>  for  the  Petitioner. 

Mr.  M.  S.  Vaidyanatha  Iyer,  for  the  Re- 
spondent. 

JUDGMENT, 

Spencer,  J* — The  Tuticorin  Municipal 
Council  which  through  its  Chairman  pre- 
ferred this  revision  petition,  resolved  to  re- 
quire wholesale  dealers  in  grain  to  take  out 
licenses  under  s.  249  of  the  Madras  District 
Municipalities  Act  (V  of  i920)  and  accord- 
ingly published  a  notification  under  s,  328 
in  the  Tinnevelly  District  Gazette.  The 
respondent,  who  was  one  of  such  whole-sale 
dealers,  paid  the  fees  demanded  of  him 
under  protest,  and  brought  a  suit  in  the 
Small  Cause  Court  to  recover  what  was 
illegally  collected  from  him.  He  succeeded 
in  obtaining  a  decree  for  a  portion  of  his 
claim.,  Thq  District  Munsif  held  that  he 
was  not  liable  to  take  out  licensee  for 


dHUKMUdHA  koO*ANAft.  [9^  1.  0.  ! 

godowns  in  which  rice  and  broken  rice^ 
etc.,  were  stored  for 'the  whole  sale  trade 
but  only  for  grain  stores.  It  is  contended 
for  the  petitioner  that  th^  word  "grain"  in 
Sch.  V  (0}  to  the  Act  includes  rice  and 
broken  rice. 

The  District  Munsif  observed: — "Paddy 
without  husk  is  rice.  Rice  is  not  a  seea 
and  does  not  sprout  out  Hence  rice  or 
broken  rice  cannot  be  called  a  grain11.  If 
the  District  Munsif  meant  by  this  that  the 
distinction  between  grain  and  rice  depended 
on  the  existence  or  absence  of  the  power 
of  germination,  I  think  he  went  near  the 
mark  without  hitting  it.  The  germ  or  seed 
is  in  the  rice.  The  outer  husk  merely  serves 
as  a  protection  from  water  and  other  exter- 
nal agencies  which  would  penetrate  and 
destroy  the  #erm, 

In  the  English  language  "corn"  which  is 
derived  from  the  same  Latin  word  "granam" 
aa  "grain11  is  commonly  used  to  mean  the 
grain  of  certain  cereals,  especially  wheat  in 
England,  and  maize  in  America,  while 
growing.  Thus  an  Englishman  would 
speak  of  a  field  of  growing  wheat  as  a  field 
of  corn,  but  he  would  never  include  other 
plants  grown  from  seed  such  as  turnips 
clover,  mustard  etc.,  under  the  head  of 
"corn.11  After  the  wheat  is  harvested  and 
threshed,  it  is  still  corn  and  it  is  sold  in. 
a  corn  market,  but  after  it  has  gone 
through  a  mill  and  become  flour  or  meal, 
the  individual  corns  or  grains  cannot  be 
distinguished- and  a  substance  is  produced 
which  is  not  corn  or  grain  but  something 
else.  This  meaning  of  the  word  "grain'* 
was  brought  out  in  a  case  that  went  up  to 
the  House  of  Lords  and  is  reported  in 
Cotton  v.  Vogan  (1)  Lord  Herschell  in  inter- 
preting the  meaning  of  the  words  which 
occur  in  the  Metage  on  Grain  Act  of  1872, 
"In  respect  of  all  grain  brought  into  the 
Port  of  London  for  sale11,  observed  "if  the 
Legislature  had  intended  to  include  what 
had  always  been  regarded  and  treated  as 
manufactured  articles,  such  as  flour  and 
meal,  as  distinguished  from  the  natural 
products  of  the  earth-untreated  except  by 
gathering  the  language  would  have  been 
altogether  different.'* 

Using  similar  language  I  would  say  that 
if  the  Madras  Legislature  intended  to  in- 
clude in  Sch.  V  (o)  rice  and  broken  rice, 
which  have  gone  through  a  certain  process, 
as  distinguished  from  the  natural  products 

(1)  (1896)  A,  C,  457;  65  L.  J,  Q,  B,  486;  74  L.  T,  501  j 
81  J,  P,  36,  * 


[§2I.  0.1926] 

of  the  earth  untreated  except  by  gathering, 
the  storing  of  which  without  a  license  may 
be  prohibited  by  any  Municipal  Council, 
they  would  have  used  more  explicit  langu- 
age to  denote  their  meaning.  In  els.  (b)  and 
(q)  (proviso)  the  word  "paddy"  occurs  and 
in  cl.  1  the  word  "Hour"  is  used.  There 
is,  theiefore,  no  reason  to  regard  the  word 
"grain"  in  cl.  (o)  as  being  used  in  the  com- 
prehensive sense  of  all  articles  of  commerce 
into  which  grain  can  be  turned  by  some 
process  or  other.  The  use  of  the  Tamil 
word  "damyam"  in  the  translation  of 
the  notification  as  the  equivalent  of  "grain" 
strengthens  the  respondent's  case.  A 
trader  who  sells  rice  may  be  called  a 
grain  merchant  and  his  merchandise 
may  in  a  loose  sense  be  called  grain  when 
it  includes  both  grain  and  rice,  but  rice  is 
strictly  not  gram,  and  the  separate  entity 
of  the  grains  by  a  process  of  disintegra- 
tion disappears  when  they  are  converted 
into  broken  rice  For  these  reasons  I  con- 
sider that  there  is  no  occasion  to  interfere 
with  the  District  Munsif's  decree.  The 
civil  revision  petition  is  dismissed  with 
costs. 

There  is  no  substance  in  the  objection 
taken  in  the  memorandum  of  cross-objec- 
tion, that  the  notification  was  not  published 
full  sixty  days  before  it  was  enfoiced  as  re- 
quired by  s  249  of  the  Act.  There  was 
evidence  before  the  Court  that  the  Gazette 
notice  must  have  been  published  on  January 
30th  to  come  into  force  on  April  1st,  and 
the  District  Munsif  accepted  that  evidence. 
The  memorandum  of  objections  is  dismissed 
with  costs 

Madhavan  Nair,  J,— I  agree.  The 
main  question  for  decision  in  this  civil 
revision  petition  is  whether  "rice"  t.e, 
paddy  without  husk  and  "  broken  rice  " 
come  within  the  meaning  of  the  term 
"  grain"  found  in  cl.  (o)  of  Sch.  V  of  the 
District  Municipalities  Act.  In  the  course 
of  the  argument  we  have  been  referred  to 
well-known  English  Dictionaries,  such  as 
Murray's  Oxfoid  Dictionary,  Chamber's 
Twentieth  Century  Dictionary,  Webster's 
Dictionary,  etc.,  wherein  the  woid  ''grain" 
has  been  explained.  According  to  Murray's 
Dictionary  the  word  "grain"  is  derived 
from  the  root  granum  which  means  "seed." 
From  this,  the  inference  is  sought  to  be 
drawn  "  that  an  article  to  be  called  grain  " 
should  have  the  power  to  germinate  or 
sprout  and  since  this  power  is  absent  in 
nee  which  is  husked  paddy,  it  is  argued 


COUNCIL  v.  SHUNMUGHA  MOOPANA&. 


611 


that  rice  cannot  be  called  "grain''  but  1  am 
not  quite  sure  whether  this  distinction  can 
be  accepted  as  a  safe  test  because  it  involves 
the  assumption  that  the  presence  or  absence 
of  nhusk"  is  the  main  determining  factor 
in  the  matter  of  germination,  whereas  it 
is  well-known  that  rice  contains  the  seed 
which  germinates  or  sprouts,  while  the  husk 
present  in  paddy  merely  serves  to  protect 
it  from  destruction  during  germination. 

In  a  case  under  the  Metage  on  Grain 
(Port  of  London)  Act  of  1872  (c.  c.)  s.  4  the 
House  of  Lords  had  to  consider  whether 
maize  and  oats  imported  with  a  view  of 
their  being  first  subjected  to  a  process  of 
gunding  or  crushing  before  sale  would  be 
"  grain  "  brought  into  the  Port  of  London 
for  sale  within  the  meaning  of  8  4  of  the 
Act.  By  s.  2  of  that  Act,  "grain  is  defined 
to  mean  corn,  pulse  and  seeds,  except  the 
following  seeds  when  brought  into  the  Port 
of  London  in  sacks  or  bags,  that  is  to  say, 
linseed,  rapeseed,  millet  seed,  etc.  'With 
reference  to  the  argument  of  Mr.  Dankwart's 
that  maize  and  oats  sold  after  being  sub- 
jected to  the  process  of  grinding  and  crush- 
ing might  come  within  the  definition  of 
1  grain"  contained  in  the  Statute,  Lord  Hers* 
chell  pointed  out  in  his  judgment  that  "if 
it  (Legislature)  had  intended  to  include 
what  had  been  always  regarded  and  treated 
as  manufactured  articles,  such  as  flour-  and 
meal,  as  distinguished  from  the  natural 
products  of  the  earth  untreated  except  by 
gathering,  the  language  would  have  been 
altogether  different  to  that  which  is  to  be 
found  in  the  Statute."  Prom  this  it  may  ba 
inferred  that  the  meaning  of  the  term 
"grain"should  be  confined  to  natural  pro* 
ducts  of  the  earth  untreated  except  by  gather* 
ing  Lord  Watson  stated  that  "the  result  of 
that  process  was  that  the  substances  operated 
upon  ceased  to  answer  the  statutory  descrip- 
tion of  a  dutiable  article  "  Though  the  de- 
cision was  given  with  reference  to  the  de- 
finition of  the  word  "grain"  contained  in 
a  special  Statute,  I  think  the  description 
of  the  term  "grain"  in  Lord  Herschell's 
judgment  is  sufficiently  general  and  may 
well  be  used  for  the  purposes  of  the  present 
case  also  Judged  by  this  test  "rice"  which 
is  paddy  subjected  to  the  process  involving 
the  lemoval  of  husk,  and  "broken  rice1* 
cannot  strictly  be  called  "  giain,"  Mr.  Sita- 
rama  Rao  for  the  petitioner  invited  our 
attention  to  the  definition  of  the  word 
"  grain  "  contained  in  s.  456  of  the  Mer- 
chants Shipj  ing  Act,  57  &  58,  Viet,  C,  6Ut 


612 


GANGA  BAKESH  SINGH  v.  MAUL  A  BUX  SINCE. 


[92  I.  C.  1926] 


That  section  defines!  "  grain  "  to  mean 
any  corn,  rice,  paddy,  pulse  seed.  etc.  But 
the  section  itself  makes  it  clear  that  this 
is  a  special  definition  applicable  to  provi- 
sions of  the  part  of  the  Act  specially  deal- 
ing, with  the  4<  carriage  of  grain  cargo.0 
Obviously,  this  definition  cannot  be  of  much 
help  in  deciding  the  present  case. 

Under  s.  209  of  the  District  Municipali- 
ties Act,  "Act  V  of  1920,  the  Council  may 
publish  a  notification  in  the  District 
Gazette  and  by  beat  of  drum  that  no  place 
within  the  Municipal  limits  or  at  a  distance 
within  three  miles  of  such  limits  shall  be 
used  for  any  one  or  more  of  the  purposes 
specified  in  Sch.  V  without  the  Chairman's 
license  and  except  in  accordance  with  the 

condition  specified  therein "    Section 

328  states  that  "  Every  notification  under 
this  Act  shall  be  published  in  the  Official 
Gazette  of  the  District  in  which  the  Muni- 
cipality is  situated  both  in  English  and  in 
a  vernacular  language  of  the  District."  That 
the  Legislature  never  intended  to  include 
"  rice "  and  "  broken  rice  "  within  the 
meaning  of  the  term  u  grain  "  appears  to 
be  clear  from  the  fact  that  in  the  notifica- 
tion in  Tamil  published  by  the  Municipality 
in  pursuance  of  the  above  provisions  of 
the  Act,  the  word  dhanyam  is  used  as 
the  Tamil  equivalent  of  the  English  word 
"  grain.11  Dhanyam  as  generally  understood 
In  the  Tamil  language  does  not  mean  "rice" 
(see  Winslow's  Dictionary). 

For  the  above  reasons  I  am  inclined  to 
hold  that  "rice"  and  "  broken  rice"  do  not 
tome  within  the  meaning  of  the  term 
"grain  in  cl.  (oj  the  Sch.  V  of  the  District 
Municipalities  Act.  The  decision  of  the 
District  Munsif  is  right  and  the  civil  re- 
Vision  petition  should  be  dismissed  with 
costs. 

I  agree  that  the    memorandum  of  objec- 
tions should  also  be  dismissed  with  costs. 
v.  N.  v.  Petition  dismissed, 

z.  K, 


OUDH  CHIEF  COURT. 

FJRST  EXECUTION  OF  DECREE  APPEAL 

No.  13  OF  1925. 

December  14,  1925. 

Present : — Mr,  Justice  Ashworth 

and  Mr.  Justice  Misra. 
GANGA  BAKH8H  SINGH- JUDGMENT- 
DEBTOR— APPELLANT 

versus 

MAULA  BUX  SINGH— DECREE-HOLDER 
— PLAINTIFF — RESPONDENT. 

Principal  and  agent — Agent  guilty  of  fraud — Action 
of  agent  whether  binding  on  principal — Fraudulent 
statement  of  agent  of  decree-holder  that  decree  has  been 
satisfied — Judgment-debtor  privy  to  fraud—Decree^ 
holder,  whether  bound 

A  principal  is  bound  only  by  acts  done  by  bis  agent 
on  Ins  behalf  in  good  faith  and  not  by  his  fraudulent 
actions  when  a  third  person  who  relies  upon  such  ac- 
tions is  himself  a  party  to  the  fraud,  [p  014,  col  1  ] 

Shipway  v  Broadwood,  (1899)  1  Q  B  369,  68  L.  J. 
Q  B  360,  80  L  T  11,  15  T  L,  R  US,  Smith  v  Sorby, 
(1878)  3  tj.  B.  D  552/i,  Bowstend  on  Agency,  sixth 
Edition  page  383,  also  Pollock  and  Mulla's  Indian 
Contract  Act,  sixth  Edition,  page  748,  referred  to 

If  no  payment  of  a  decree  is  actually  made  by  the 
judgment-debtor  and  if  as  a  result  of  collusion  between 
the  agent  of  the  decree-holder  and  the  judgment- 
debtor,  a  fraudulent  application  containing  wrong  facts 
is  put  in  by  the  agent,  the  decree-holder  cannot 
be  deemed  in  law  to  be  bound  by  such  an  application. 
[ibid] 

Application  dated  12th  January  1923  to 
the  effect  that  no  money  had  been  paid 
either  to  the  decree-holder  or  to  his  Mukhtar 
Sant  Prasad  and  that  the  proceedings  and 
certificate  of  payment  dated  6th  January 

1923  in  satisfaction    of  the    decree   dated 
the  14th    May     1921    to     the    amount    of 
Rs.  8,946-14-10  were  bogus.    Hence  enquiry 
be  made  in  the  matter. 

Messrs.  H.  K.  Ghosh,  and  A.  P.  Sen,  for 
the  Appellant. 

Mr.  Zahur  Ahmad,  for  Mr.  Naimatullah, 
for  the  Respondent. 

JUDGMENT.— This  is  an  appeal  from 
an  order  of  the  learned  Subordinate  Judge, 
BaraBanki,  dated  the  23rd  of  December 

1924  cancelling  a    certificate   of  payment, 
dated  tfre  6th  of  January  1923,  under  which 
satisfaction  of  a  decree  to    the  amount  of 
Rs.  8,496-14-10  had  been  recorded. 

The  facts  of  the  case  are  as  follows  : — 
On  the  27th  of  February  1919  a  preli* 
minary  decree  for  sale  was  passed  on  the 
basis  of  a  compromise  in  favour  of  Maula 
Bakhsh  Singh,  the  respondent,  Against 
Ganga  Bakhsh  Singh,  the  appellant  and 
others  for  Rs.  9,904-6-3.  Out  of  the  total 
sum  so  decreed  Rs.  7,478  8-3  was  to  be 
paid  by  one  set  of  defendants  consisting  of 
Ganga  Bakhsh  Singh  and  Mahindra  Bahadur 
Singh,  the  two  appellants  in  this  Court* 


I,  0.  1&26J 


0ANOA  RAKttSfl  SING*  0.  MAuLA  BuX  SINGH. 


CIS 


The   remaining   sum  was  to  ba  paid  by 
another  set    of    defendants  consisting    of 
Jagnnath  Bakhsh  Singh  and  others.    The 
decree  was  made  absolute  on  the  14th  May 
1921.    Subsequently  on  an  application  by 
the  decree  holder  the  sale-decree  was  trans- 
ferred to  the  Collector  of  the  District.  On 
the  6th  of  January   1923  the  respondent- 
decree-holder's  Mukhtar,  Sant  Prasad,  appli- 
ed to  the  lower  Court  that  as  he  had  been 
paid  Rs.  8,496-14-10  out  of  Court  by  Qanga 
Bakhsh  Singh,  the  judgment-debtor-appel- 
lant,  the  said  payment  should  be  certified 
in  full  satisfaction  of  the  decree  and   that 
the  share  of  one  anna  and  four  pies  belong- 
ing to  him   be  exempted  from   sale.    This 
application  contained  an  endorsement    of 
identification  of  Sant  Prasad,  the  general 
agent  of  the  decree-holder,  by  one    Ram 
Suchit  Vakil  of  Bara  Banki  and  it  was  pre- 
sented and  verified  before  the  Court  by 
the  said  ag'ent  of  the  decree-holder    on  the, 
same  date,  namely,  the  6th  of  January  1923, 
Although  the  payment  was  only  of  a  part 
of  the  decree,  yet  it  is  surprising  to  find 
that  the  order  recorded  in  the  order-sheet 
on  the  same  date  was  to  the  effect  that  full 
satisfaction  of  the  decree  be  recorded  and 
that  the  execution  record  be  recalled  from 
the   Collector's   Court.    It  is    not  possible 
for  us  to  follow  this  order  which  was  pass- 
ed   by    the    then    Subordinate  Judge  of 
Bara  Banki,  M.  Gokul  Prasad     On  the  12th 
of  January  1923,  that  is,  6  days  later  Maula 
Bakhsh,    the  decree-holder,    presented  an 
application  to  the  Court  signed  by  him  and 
his  Mukhtar,  Sant    Prasad,  to    the  effect 
that  no  money  had  been    paid  to  either  of 
them    and    chat  the  previous  proceedings 
under  which  satisfaction  of  the  decree  had 
been  recorded  were  bogus    and  should  be 
set  aside.    Another  application  to  the  same 
effect  was  presented  by  him  and  his  agent 
Sant  Prasad  on  the  15th  of  January  1923. 
This  application   was  also  signed  by  both 
of    them.    In    this  application    he    again 
clearly    stated  that   no    money  had   been 
received  either  by   him  or  his   agent,  that 
the  entire  proceedings  were  bogus  ;   that 
after   an  inquiry  into  the  matter  by  the 
Court  the  satisfaction  of  the  decree  already 
recorded  be  cancelled,  and  that  the  pro- 
ceedings in   execution  should  be   started 
and  the  property  mortgaged,  sold  to  realise 
the  decretal  amount    Both  these  applica- 
tions were  put  up  before  the  Court  on  the 
1  »th  of  January  1923  and  the  Court  ordered 
notice  of  the  application  should  go  to 


the    judgment-debtor,    the     general-agent 
Sant  Prasad,  and  the  Pleader  who  identi- 
fied him  and  the  case  fixed  for  hearing  on 
the  3rd  of  February  1923.    Before  the  date 
fixed  for  hearing.Swt  Prasad,  the  agent  of, 
the  decree-holder,  filed  an  application  de- 
claring the  correctness  of  the  contents  of 
the  application  made  by  him  on  the  6th  of 
January  1923  and  alleging  that  the  money 
had  been    received  from    the     judgment 
debtor  through  his  general  agent,  Jagdeo 
Singh,  out  of  Court  and  that  on  the  subse- 
quent application  of  the   15th  of  January 
1923  his  signature  had    been  obtained  by 
force  (zabardasli).     On  the  3rd  of  February 
1923  the  case  was  not  ready  for  hearing 
owing  to  the  want  of  service  on  the  judg- 
ment-debtors    and  after  several    adjourn- 
ments it  came  up  before  the   Court  on    the 
12th  of  May  1923,  on  which  date  the  Pleader 
for  the  judgment-debtors  denied  the  allega- 
tions made    by    the  decree-holder    in  his 
application  and  contended  that   the  money 
had  been  paid  to  Sant  Prasad,  his  general 
agent,   who  had   authority  to    receive  the 
amount.  On  that  date  the  judgment-debtors 
also  filed  a  receipt  signed  by  Sant  Prasad 
and    attested    by    witnesses  reciting    tha 
receipt  of  Rs.  8,496-14-10  from  Ganga  Bakhsh 
Singh  through  Jagdeo  Bakhsh    Singh   his 
general-agent.    This  is  marked  as  Ex. -A  9 
and    is  denied  by  the   decree-holder   who 
said  that  it  was  a  collusive  and  fraudulent 
receipt 

The  learned  Subordinate  Judge  framed 
an  issue  to  the  effect  whether  the  applica- 
tion dated  the  6th  of  January  1923  and  the 
receipt,  Ex.  A  9  were  farzi  and  fraudulent 
as  alleged  by  the  decree-holder  and  whether 
any  payment  had  been  made  to  him.  A 
date  was  then  fixed  for  taking  evidence  and 
such  of  the  evidence  as  was  produced  by 
the  parties  was  recorded  either  by  the  Court 
or  on  commission  on  that  and  subsequent 
dates.  The  Court  then  passed  the  order 
under  appeal,  that  the  certificate  of  pay- 
ment dated  the  6th  of  January  1923  in 
satisfaction  of  the  decree  to  the  extent  of 
Rs  6,496  1440  under  the  receipt,  Ex.  A9,  of 
the  same  date  be  cancelled  as  the  certificate 
and  the  receiptbpthwere  bogus  transactions. 

On  appeal  it  is  now  contended  that  the 
finding  of  the  learned  Subordinate  Judge  is 
not  correct,  that  the  money  was  actually 
paid  by  the  judgment-debtors  to  the  decree- 
holder,  that  the  certificate  of  payment  re- 
corded by  the  general  agent  of  the  decree- 
holder  was  genuine  and  that  the  decree 


614 


GANOA  BAKHSH  BINOH  *.  MAULA  bux  SINGH. 


[92  I.  0.  1»28] 


fchould  be  declared  to  have   been  satisfied 
to  the  extent  of  the  amount  paid. 

It  is  clear  that  if  no  money  was  actually 
paid  by  the  appellant  to  the  agent  of  the 
decree-holder  and  if  the  said  agent  fraudu- 
lently and  collusively  on  having  been 
bribed  by  the  judgment- debtor  admitted  in 
Court  the  receipt  of  the  decretal  amount, 
his  action  could  not  be  binding  upon  his 
principal,  the  decree-holder.  It  is  a  well 
established  rule  of  law  that  a  principal  is 
bound  only  by  acts  done  by  his  agent  on 
his  behalf  in  good  faith  and  not  by  his 
fraudulent  actions  when  a  third  person  who 
relies  upon  Buch  actions  is  himself  a  party 
to  the  fraud,  vide  Shipway  v.  Broadwood 
(1),  Smith  v.  Sorby  (2)  and  Bowstend  on 
Agency,sixth  Edition,  page  383,  also  Pollock 
and  Mulla's  Indian  Contract  Act,  sixth 
Edition,  page  748.  If,  therefore,  no  pay- 
ment was  actually  made  by  the  judgment- 
debtor  and  if  as  a  result  of  the  collusion 
between  the  agent  and  the  judgment- 
debtor,  a  fraudulent  application  containing 
wrong  facts  was  put  by  the  agent  in  Court, 
the  decree-holder  cannot  be  deemed  in  law 
to  be  bound  by  such  an  application.  We, 
therefore,  proceed  to  decide  the  question 
whether  the  story  of  the  alleged  payment 
by  the  judgment-debtor  through  his  agent 
Jagdeo  Singh  to  Sant  Prasad,  the  general 
agent  of  the  decree-holder,  is  correct  or  not. 
In  order  to  prove  the  payment  the  judg- 
ment-debtor filed  Ex.  A9  which  is  the  receipt 
signed  by  Sant  Prasad  and  which  recites 
the  receipt  of  the  money  by  him.  He  also  ex- 
amined two  out  of  three  marginal  witnesses 
to  the  receipt,  namely,  Chhedan  (W.  No  3) 
and  Mangli  Prasad  (W.  No.  6)  as  well  as 
Pandit  Ram  Suchit  Pleader  who  had  identi- 
fied Sant  Prasad,  Jagdeo  Bakhsh  Singh, 
his  own  agent  through  whom  the  money 
is  alleged  to  have  been  paid  and  lastly  his 
brother-in-law  (sala)  Kunwar  Hazari  Singh, 
who,  it  is  stated,  had  advanced  to  the  ap- 
pellant the  money  which  is  said  to  have 
been  paid  to  the  agent  of  the  decree-holder. 
Sant  Prasad,  the  said  agent  of  the  decree- 
holder  was  also  examined  ;  he  is  witness 
No.  9.  The  evidence  of  this  man  was  put 
before  us  at  great  length.  We  read  it 
carefully  but  we  feel  that  it  is  untrustworthy 
and  cannct  be  relied  upon.  The  surround- 
ing circumstances,  moreover,  relating  to 
the  payment  of  this  money  are  so  suspicious 

(1)(1899)  1Q.  B.  369,  68  L  J.  Q.  B    360;  80  L,  T,  11- 
15  T  L  K  l*o. 
(2)  (1878)  3  Q.  B.  D.  552n. 


that  we  do  not  think  that  the  story  £of  pay- 
ment alleged  by  the  judgment-debtor  is  a 
true  one.  It  seems  to-us  to  be  quite  improb- 
able that  such  a  large  sum  of  money  should 
have  been  paid  by  the  judgment-debtor  to 
the  decree-holder  outside  the  Court.  It  is 
in  evidence  that  a  large  number  of  decrees 
previously  obtained  against  the  appellant 
had  not  been  paid  off  and  that  the  appel- 
lant was  living  in  a  chronic  state  of  indeb- 
tedness. The  question  which  we,  therefore, 
put  to  the  learned  Counsel  for  the  appellant 
was,  where  the  appellant  had  got  all  this 
money  from  ?  His  reply  was  that  the  ap- 
pellant had  got  the  money  from  one  Kunwar 
Hazarai  Singh,  his  brother-in-law  (sala) 
living  in  Pilibhit  District.  We  have  read 
his  evidence  with  great  care  and  it  appears 
to  us  that  the  learned  Subordinate  Judge 
was  right  in  rejecting  it,  Kunwar  Hazari 
Singh  is  a  big  landholder  in  the  said  dis- 
trict owing  shares  in  no  less  than  69  villages. 
He  was  asked  to  file  his  account  books  and 
to  show  from  them  whether  he  had  paid 
this  amount  of  money.  His  reply  was  that 
he  kept  no  accounts  himself  and  the  only 
account  which  was  kept  by  his  ziledars 
was  the  account  of  his  income  but  not  of 
his  expenses.  It  is  impossible  to  believe 
that  a  big  landlord  of  the  status  of  Kunwar 
Hazari  Singh  could  have  carried  on  the 
management  of  his  estate  without  keeping 
accounts.  The  non-production  of  account 
books  by  him  is  a  very  suspicious  circum- 
stance and  affords  convincing  proof  that  no 
payment  was  ever  made.  We  might  here 
refer  to  another  unfortunate  matter  in  con- 
nection with  this  witness.  The  appellant 
till  a  very  late  stage  of  the  case  did  not 
suggest  that  the  money  had  been  obtained 
by  him  from  Kunwar  Hazari  Singh  but 
contented  himself  with  the  allegation  that 
his  financial  position  was  sound,  and  he 
was  in  a  position  to  pay  the  decretal  amount 
himself.  It,  therefore,  appears  to  us  that 
the  story  of  alleged  loan  from  Hazari  Singh 
was  a  pure  afterthought. 

Regarding  the  evidence  of  the  witnesses 
examined  by  the  appellant  we  find  that 
their  story  is  that  the  decretal  money  had 
been  paid  in  currency  notes  eighty-five  in 
number,  each  being  of  Rs.  lOO  face  value. 
It  is  however  very  surprising  to  find  that 
the  receipt  (Ex.-A9)  does  not  mention  that 
the  money  was  paid  in  currency  notes  much 
less  their  number.  Absence  of  any  men- 
tion of  this  fact  in  the  receipt  put  forward 
by  the  appellants  as  evidence  of  the  pay- 


L  0.  192  jj     TADAPALLI  VARADACJAaYOLtJ  V.  KHANOA7ILLI  NARASI-lHAOHAfcYOLU.  6l5 


ment  of  the  decretal  amount  goes  to  show 
that  the  story  of  the  witnesses  produced  by 
the  appellants  is  a  concocted  one.  We  may 
also  mention  that  although  the  decree- 
holder,  Maula  Bakhsh  Singh,  himself  went 
into  the  witness-box  and  deposed  that  the 
story  of  the  alleged  payment  by  the  judg- 
ment-debtor was  false,  yet  it  is  remarkable 
that  the  appellant,  Ganga  Bakhsh  Singh, 
did  not  see  his  way  to  give  evidence.  Sant 
Prasad  whom  the  decree-holder  examined 
as  a  witness  on  his  behalf  also  stated  on 
oath  that  he  had  not  received  the  money, 
but  the  man  is  thoroughly  untrustworthy 
pnd  we  can  place  no  reliance  on  his  state- 
ment one  way  or  the  other. 

We,  therefore,  come  to  the  conclusion  that 
the  story  of  the  appellant  regarding  the 
alleged  payment  is  false  and  no  payment 
was  ever  made  by  him.  The  judgment  of 
the  learned  Subordinate  Judge  is  correct, 
and  we  affirm  it. 

The  appeal  fails  and  is,  therefore,  dismiss- 
ed with  costs. 

G  H.  Appeal  dismissed. 


MADRAS  HIGH  COURT* 

CIVIL  REVISION  PETITION  No.  385 

OF  1925. 
October  2,  1925. 
Present: — Mr.  Justice  Phillips. 
VADAPALLI  VARADACHARYULU- 
PBTITIONER 

versus 

KHANDAVILLI  NARASIMHACHAR- 
YULU— RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  ss  04,  151t  0 
XXXIX,  rr  1,  2— Injunction  restraining  execution  of 
decree,  whether  can  be  granted— Inherent  power   of 
Court 

On  an  application  in  a  pending  suit  by  the  plaint- 
iff for  an  injunction  restraining  the  execution  of  a 
decree  obtained  by  the  defendant  against  the  plaintiff's 
father 

Held,  that  the  Court  had  no  jurisdiction  to  grant 
the  injunction  either  under  O  XXXIX,  or  under  3  94 
ors  151,  O.P  C  fp  615,  col  2] 

When  the  0.  P  0  makes  provision  for  a  certain 
procedure  it  must  be  deemed  to  be  exhaustive  in  that 
respect  and  the  provisions  of  s  151  of  the  Code  can- 
not be  invoked  in  opposition  to  those  provisions,  [p. 
616,  col.  1] 

Gadi  Neelaveni  v.  Mavappareddi  Gari  Narayana 
Reddi,  53  Ind  Cas  847,  43  M  94,  37  M.  L  J.  599,  26  M. 
L.T.  377;  10  L.  W  606;  J1920)  M  \V.  N  19,  Krishna- 
vwamy  Naidu  v.  Chengalroya  Naidu,  76  Ind,  Cas  836, 
47  M.  171;  18  L.  W.  870,  45  M.  L  J.  813;  33  M  L.  T, 
J07;  (W24)  A,  L  R,  (M.)  114  and  Jo9hi  Sihib  Prakwh  r. 


Jhinguria,  78  Ind.  Cas.  416;  46  A  144;  (1924)  A    L  R. 
(A  )  446,  relied  on 

Under  a  iH,  C.  P  C  ,  tho  Court  is  given  power  to 
issue  injunctions  provided  the  rules  make  provision 
for  the  exercise  of  that  power  The  rules  are  contained 
in  0  XXXIX  of  the  Code  and  s  94  must,  therefore,  be 
read  subject  to  the  rules  contained  in  that  Order,  [p 
615,  col  2] 

Petition,  under  s,  115  of  Act  Vof  1908  and 
s.  107  of  the  Government  of  India  Act,  pray- 
ing the  High  Court  to  revise  an  order  of  the 
District  Court,  Godavari,  at  Rajahmundry, 
dated  the  2nd  April  1925,  in  C.  M.  A.  No.  1  of 
1925,  preferred  against  an  order  of  the  Court 
of  the  Subordinate  Judge,  Amalapur,  dated 
1st  January  1925,  in  I.  A.  No.  808  of  1924 
in  O.  8.  No.  79  of  1924. 

Mr.  K.  Ramamurthi,  for  the  Petitioner. 

Mr.  K.  Kameswara  Rao,  for  the  Respond- 
ent. 

JUDGMENT.— This  is  a  petition  for 
revising  an  order  of  the  District  Court  of 
Godavari  refusing  to  grant  an  injunction 
restraining  the  execution  of  a  decree  ob- 
tained by  the  defendant  against  the  plaint- 
iff's father.  The  Subordinate  Judge  held 
that  he  had  no  jurisdiction  to  grant  such 
an  injunction  and  this  view  was  upheld  by 
the  District  Judge. 

It  is  now  contended  that  such  an  injunc- 
tion will  come  under  O.  XXXIX,  either  r. 
1  or  r.  2.  It  certainly  cannot  come  within 
the  language  of  r.  1,  for  there  is  no  sugges- 
tion that  the  property  of  which  delivery 
is  to  be  given  is  in  danger  of  being  wasted, 
damaged  or  alienated.  It  is  then  argued 
that  r.  2  would  be  applicable  and  that  this 
is  an  injunction  to  restrain  the  defendant 
from  committing  "  other  injury  of  any 
kind.1*  The  alleged  in  jury  is  the  execution 
of  a  decree  lawfully  obtained.  In  order  to 
hold  that,  that  does  constitute  an  injury,  it 
is  necessary  to  hold  that,  that  decree  is 
illegal,  for,  if  the  decree  is  legal,  the  de- 
fendant has  every  right  to  execute  it  and 
in  doing  so  cannot  be  said  to  commit  any 
injury. 

It  is  then  argued  that  s.  94,  C.  P.  C.,  is 
wider  than  0.  XXXIX  and  covers  the  present 
case,  but  I  think  that  contention  must  be  at 
once  negatived  in  view  of  the  language  of 
the  section  which  says  "  in  order  to  prevent 
the  ends  of  justice  from  being  defeated  the 
Court  may,  if  it  is  so  prescribed/'  that  is  to 
say,  the  Court  is  given  power  provided  that 
the  rules  make  provision  for  the  exercise 
of  that  power.  The  section  is  clearly  gov- 
erned by  O.  XXXTX  which  contains  the 
rules  prescribed, 


616 


CHANDRA  KUMAR  GOHA  r.  ELAHI  BUKS'U, 


A  further  contention  is  put  forward  that 
the  injunction  may  be  granted   under  the 
inherent  powers  of  the  Court  under  a.  151, 
C.  P,    0,,  and  the  petitioner   relies   on  a 
decision  of  the  Lahore  High   Court,  Kanshi 
Ram  v,  Sharaf  Din  (I).  The  reason  for  hold- 
ing this  view  is  not    very  clearly  stated  in 
that  judgment  and  it  appears  to  be  opposed 
to  the  principles  adopted  by  a  Full  Bench 
of  this  Court  in  Gadi  Neelavem  v.  Marappa- 
reddi  Gari  Narayana    Reddi   (2)  followed 
in  Krishnaswamy    Naidu    v    Chengalroya 
Naidu  (3)  and  in  the  case  of  Joshi  Sahib  Pra- 
kash  v.  Jhinguria  (4).    The  principle  there 
laid  down  is  that  when  the  Code  makes  pro- 
vision for  a  certain  procedure  the  Code  must 
be  deemed  to  be  exhaustive  in  that  respect 
and  the  provisions  of  s    151  cannot  be  in- 
voked in    opposition  to    these  provisions. 
Here  the  Code  lays  down  in  s.  94  that  the 
Court  shall  only  have  power  if  it  is  given  by 
rules  framed  under  the  Code.    It,  therefore, 
seems  to  me  impossible  to  hold  that  when 
rules  have  been  framed  to  give  the   Court 
power,   further  power  should  be  given  by 
s.  151.    If  then  the  principle  laid  down  in 
the  Full  Bench    of  this    Court    is  correct 
and  I  see  no  reason  to  doubt  its  correctness, 
it  is  applicable    to  this  case  also,  and  the 
District  Judge  was  right  in  his  order. 

I  may  add  that  from  the  facts  put  before 
me  here,  although  they  were  not  considered 
by  the  lower  Courts,  the  petitioner  does 
not  seem  to  have  much  ground  for  his  pre- 
sent complaint, 

The  petition  is  dismissed  with  costs, 
v.  N.  v.  Petition  dismissed. 

Z  K 

(1)  73  Ind,  Gas,  909;  (1923)  A.  I  R  (L)  144. 

(2)  53  Ind  Gas  847;  43  M.  94,  37  M  L  J  599  26  M 
L.  T.  377,  10  L.  W  606,  (1920)  M  W  N  J9 

(3)  76  Ind.  Gas.  836,  47  M.  171,  18  L  \V,  870-  45  M 
L.  J.  813,  33  M  L.  T.  207,  (1924)  A  I.  R  (M  )  114   ' 

(4)78  Ind.  Gas. 416,  46  A.  144,  (1924)  A,  I.  R.  (A) 
446. 


CALCUTTA  HIGH  COURT. 

APPEAL  F*OM  APPELLATE  DECREE  No  496 

OF  1923. 

June  15,  1925. 

Present: — Justice  Sir  Babington  Newbould, 

KT  ,  and  Mr  Justice  Graham 
CHANDRA  KUMAR  GUHA-  PLAINTIFF 
— APPELLANT 

versus 
ELAHI  BUKSHA  AND  OTHERS —DEFENDANTS 

— RESPONDENTS 
Qiml  Procedure,  Code  (Act    V  of  190$),  0.  XXII,  r.  4 


[92 1.  0. 1926] 

—Abatement  of  juit-^Rent  suit— Joint  tenants— N  on 
joinder  in  appeal— Inconsistent  decrees 

Although  a  plaintiff  landlord  can  sue  any  one  of  hi/ 
joint  tenants  for  the  rent,  where  he  does  not  do  so,  bu1 
makes  all  of  them  parties  to  the  suit,  he  cannot,  in  cast 
of  his  failure  to  join  any  of  the  defendants  or  h« 
representatives  as  respondents  to  the  appeal,  contenc 
that  as  he  had  the  option  to  sue  any  of  the  joint 
tenants  or  his  representatives,  his  appeal  would  not 
abate 

When  the  effect  of  not  joining  some  of  the  defend- 
ants to  a  suit  as  respondents  to  the  appeal  would 
in  case  of  the  success  of  the  appeal,  be  the  passing 
of  two  inconsistent  decrees,  the  appeal  would  abate, 

Appeal  against  a  decree  of  the  Addi- 
tional District  Judge,  Noakhali,  dated  the 
1st  of  August  1922,  modifying  that  of 
the  Officiating  Munsif,  Additional  Court, 
Lakhipur,  dated  the  21st  of  January  1921. 

Dr.  Radha  Benode  Pal>  Bab  us  Bhupendra 
Kiskore  Ghose  and  Uem  Kumar  Base,  for  the 
Appellant. 

Babu  Jitendm  Kumar  Sen  Gupta,  for 
Babu  Mahendra  Kumar  Ghose,  for  the  Re* 
epondenta. 

JUDGMENT. — This  appeal  arises  out 
of  a  suit  for  rent.  The  plaintiff  biought  a 
suit  against  14  defendants  claiming  from 
them  rent  with  interest  on  the  arrears  at  the 
rate  of  75  per  cent,  per  annum.  The 
plaintiff's  case  is  that  the  tenancy  was  creat- 
ed in  favour  of  two  persons,  Amanuddin 
and  Mona  Gazi  who  executed  ^kabuliyat 
and  that  the  defendants  had  succeeded  to 
the  interest  of  these  two  persons  by  inherit- 
ance and  purchase.  One  of  the  defendants 
died  before  the  institution  of  the  suit  and 
the  heirs  of  this  defendant  were  not  pro- 
perly summoned.  The  suit  was  decreed  in 
full  against  the  remaining  defendants  by 
the  Court  of  first  instance.  Against  this 
decree  an  appeal  was  preferred  by  four  of 
the  defendants,  the  three  sons  and  the 
widow  of  Mona  Qazi.  The  appeal  was  dec- 
reed and  the  lower  Appellate  Court  decided 
that  the  stipulation  for  payment  of  interest 
at  75  per  cent,  with  damages  and  various, 
other  abwabs  must  be  held  to  be  hard  and 
penal  and  that  the  plaintiff  was  entitled 
to  get  damages  at  12  per  cent,  per  annum 
instead  of  interest  at  the  rate  of  75  per 
cent,  per  annum  on  the  arrears.  Against 
this  decision  the  plaintiff  has  appealed  to 
this  Court  and  has  joined  as  respondents  to 
this  appeal  only  those  four  defendants  who, 
appealed  to  the  lower  Appellate  Court. 

A  preliminary  objection  has  been  taken 
on  behalf  of  these  defendant-respondents 
that  the  appeal  is  not  maintainable  in  the 
absence  of  the  other  defendants.  On 


[9ft  1.  0.  1926J  JITENfDRA  NATH  CHATTERJEE  V,  JASODA  8AHUM. 

of  the  appellant  this  objection  is  met  by 
the  contention  that  as  the  original  kabuliyat 
was  executed  by  the  two  tenants,  Amanud- 
dm  and  i.vlona  Gazi,  they  were  jointly  and 
severally  liable  to  the  rent  and  it  was  open 
to  the  landlord  to  sue  either  and  that  he 
is  entitled  now  to  claim  relief  against  the 
representatives  of  Mona  Qazi  alone.  This 
contention  fails  on  the  ground  that  though 
it  was  optional  with  the  plaintiff  appellant 
to  sue  the  representatives  of  either  of  the 
joint  tenants  he  did  not  frame  his  suit  in 
this  form.  Further  on  the  pleading  that 
the  defendants  are  the  representatives  of 
the  original  tenants  by  inheritance  and 
purchase  it  is  not  apparent  that  the  de- 
fendants who  are  respondents  in  this  appeal 
are  all  the  representatives  of  Mona  Gazi 

A  further  objection  to  the  appellant's 
action  in  not  joining  the  other  defendants 
is  that  if  this  appeal  is  decreed  there  will 
be  two  inconsistent  decrees,  a  decree  for 
arrears  of  lent  with  damages  at  12  per  cent, 
against  some  of  the  tenants  and  a  decree 
for  arrears  of  rent  with  interest  at  75  per 
cent  per  annum  against  the  four  respondents 
in  this  appeal 

We,  therefore,  hold  that  the  objection  of 
non-joinder  LS  fatal  to  this  appeal  which  is 
accordingly  dismissed  with  costs 

N.  H.  Appeal  dismissed 


61? 


PATNA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE; 
No    1344  OF  1922. 

July  1,  I9r5 
Present:-— Mr.  Justice  Adami  and 

Mr.  Justice  Sen 
JITENDRA  NATH  CHATTERJEE 

AND   OTHBHS — DEFENDANTS— APPELLANTS 

versus 

Musammat  JASODA  SAHUN  AND  ANOTHER 
— PLAINTIFFS — RESPONDENTS 

Contract  Act  (IX  of  1872),  s  71>~  Penalty,  when 
arises— Ejectment  suit— Compromise,  dectee— Stipula- 
tion to  pay  enhanced  rent  after  expiry  of  term,  whe- 
ther penal— Doctrine  of  penalty,  whether  applicable  to 
stipulation,  contained  in  decree 

A  penalty  under  a  74  of  the  Contract  Act  can 
only  follow  some  breach  of  contract  or  obligation 
[p  619,  col  1  ] 

The  doctrine  of  penalties  is  not  applicable  to  stipu- 
lations contained  in  decrees  Those  who,  with  their 
eyes  open,  have  made  alternative  engagements  and 
invited  alternative  orders  of  the  Court,  must,  if  they 
fail  to  perform  the  one,  perform  the  other,  however 
greatly  severe  its  terms  may  be,  [p,  619,  col,  2,] 


An  ejectment  suit  was  compromised  and  the  com- 
promise decree  provided  that  the  defendants  would 
be  entitled  to  occupy  the  premises  in  suit  for  a 
period  of  eleven  years  on  payment  of  a  yearly  rent 
of  Rs  400  and  that  if  they  wanted  to  ocrupy  the 
premises  after  the  expiry  of  the  term,  without  taking 
a  fiesh  settlement,  they  shall  pay  rent  at  Rs  100  per 
month 

Reid,  that  the  intention  of  the  parties  was  that  if 
the  defendants  wanted  to  occupy  the  piemises  after 
the  expiry  of  the  term,  they  could  either  take  a 
fresh  settlement  or  remain  in  occupation  without  a 
fiesh  settlement  on  a  rent  of  Rs  100  per  month  which 
the  parties  at  that  time  thought  would  be  a  fair  rent 
after  the  lapse  of  11  years  and  that,  therefore,  no 
question  of  any  penalty  arose,  [p  619,  col  1  ] 

Appeal  against  a  decision  of  the  District 
Judge,  Bhagalpur,  dated  the  27th  July  1922, 
confirming  that  of  the  Subordinate  Judge, 
Bhagalpur,  dated  the  28th  May  1921. 

Messrs.  Hasan  Iwara,  S.  M.  Mulhck  and 
S.  C.  Mozumdar,  for  the  Appellants. 

Messrs  P  C.  Manuk,  S.  N.  Paht  and  N. 
N.  Sen,  for  the  Respondents. 

JUDGMENT. 

Adami,  J,— The  plaintiffs  in  this  case 
sued  the  defendants  for  house  rent  at  the 
rate  of  Ks.  100  per  month  with  interest  frojn 
January  1918  to  December  1920. 

It  appears  that  some  11  or  12  years  pre- 
vious to  the  suit  the  predecessor  of  the 
plaintiffs  had  sued  the  defendants  and 
sought  to  eject  them  from  the  premises 
which  are  within  the  Municipality  of  Bha- 
galpur The  suit  was  compromised  and  in 
Apiil  1907  a  decree  was  passed  in  terms  of 
the  compromise.  Clauses  4,  5,  7  and  8  of 
the  compromise  included  in  the  decree  are 
to  the  following  effect: — 

44  (4)  That  from  January  1907  to  Decem- 
ber 19 17  the  defendants  shall  be  entitled 
to  occupy  the  premises  mentioned  in  the 
plaint  and  pay  rent  at  four  hundred  rupees 
per  year  (Rs.  400)  payable  in  four  instal- 
ments of  Rs.  100  each  from  January  1907 
to  December  1917  and  the  plain tift  shall 
have  no  right  to  eject  the  defendants  from 
the  premises  for  that  period,  namely,  be- 
fore December  1917.  The  defendants  will, 
however,  be  at  liberty  to  vacate  the  said 
premises  at  any  time  within  the  said  period 
of  11  years  on  giving  six  months*  notice  to 
the  plaintiff." 

"  (5)  That  if  the  defendants  want  to 
occupy  the  premises  after  the  expiry  of 
1917,  without  taking  a  fresh  settlement, 
they  shall  have  to  pay  rent  at  Rs.  100  per 
month." 

"  (7)  That  when  the  defendants  give  up 
the  premises,  they  shall  be  bound  to  restore 
the  premises  to  the  condition  in  which 


618 


JITENDRA  NATH  CHATTERJEE  V   JASODA  SAHUN. 


it  was  at  the  time  it  was  first  settled  with 
them/1 

"  (8)  That  the  plaintiff  shall  be  bound  to 
keep  the  premises  in  good  repair  during 
the  period  of  said  11  years. " 

After  1917,  the  defendants  continued  to 
occupy  the  premises  :  they  did  not  take  a 
fresh  settlement  and  held  over  until  the 
date  of  the  suit. 

The  defence  to  the  suit  was  that  cl.  (5) 
was  a  covenant  for  renewal  and  the  stipula- 
tion that  defendants  would  have  to  pay 
Rs.  100  per  month,  if  they  wanted  to  occupy 
the  premises  without  taking  a  fresh  settle- 
ment, was  by  way  of  a  penalty;  they  claimed 
the  right  to  continue  paying  rent  at  the 
rate  of  Rs.  400  a  year. 

The  question  in  the  suit  was  whether  cl. 
(5)  was  a  renewal  clause  and  whether  the 
stipulation  as  to  payment  of  rent  at  Rs.  100 
per  month  was  by  way  of  penalty.  The 
learned  Subordinate  Judge  held  that  cl.  (5) 
did  not  contain  a  covenant  for  renewal  of 
the  lease,  but  that  a  fresh  lease  with  fresh 
terms  and  rent  could  be  taken  at  the  expiry 
of  the  term  of  the  lease.  He  held  that  the 
defendants  did  not  execute  any  fresh 
kabuliyat,  nor  did  they  give  notice  to  the 
appellant  of  their  intention  of  doing  it.  He 
decreed  the  plaintiff's  suit. 

The  learned  District  Judge  came  to  the 
same  opinion  ;  beheld  that  there  was  no 
covenant  for  renewal  and  that  cl.  (5)  was 
not  a  penalty  clause.  He  allowed  interest 
only  from  the  27th  December  1920,  when 
a  notice  was  served  on  the  defendants  by 
the  plaintiff. 

Mr.  Hasan  Imam  before  us  argues  that  cl, 
(5)  contains  a  covenant  for  renewal  and 
that  the  stipulation  as  to  payment  of  a 
monthly  rent  of  Rs.  100  is  penal.  He  con- 
tends that  cl.  (5)  means  that  the  defendants 
have  the  right  to  a  renewal  of  the  lease 
on  the  same  terms  if  they  do  not  want  to 
take  a  fresh  settlement,  and  that  the  sti- 
pulation as  to  payment  of  the  monthly 
rent  of  Rs.  100  is  intended  only  to  force 
them  to  take  a  fresh  settlement  At  least, 
if  his  contention  is  that  the  defendants 
have  a  right  to  renew  the  lease  on  the  same 
terms,  if  they  do  not  want  afresh  settle- 
ment, it  is  difficult  to  understand  what  ac- 
tion the  penalty  would  be  attached  to  unless 
it  is  a  failure  to  take  a  fresh  settlement. 
He  relies  on  the  cases  of  Guru  Prosanna 
Bhattacharjee  v  Madhusudan  Chowdhury  (1), 

(1)  61  Tn4.  Cat?  824;  23  0,  W.  N,   901;  35  C.  L,  J, 
87, 


|>2 1  0. 1926] 

Secretary  o/  State  for  India  v.  Forbes  (2) 
and  Lani  Mia  v.  Muhammad  Easin  Mia  (3) 
with  regard  to  the  question  of  renewal.  In 
my  opinion,  none-  of  these  three  decisions 
altogether  meets  this  case. 

In  the  first  one  the  real  question  at  issue 
was  with  regard  to  the  meaning  of  the 
words  dosra  bundbust,  that  is  to  say,  whether 
they  meant  a  second  settlement  on  the 
same  terms  or  a  different  settlement,  The 
words  in  the  lease  were:  "  On  the  expiry 
of  the  term  I  shall  take  a  dosra  bundbusV" 
the  lease  was  in  Bengali.  It  was  held  that 
where  there  is  a  covenant  for  renewal,  if 
the  option  does  not  state  the  terms  of  the 
renewal  the  new  lease  would  be  for  the 
same  period  and  on  the  same  terms  as  the 
original  lease  in  respect  of  all  the  essential 
conditions  thereof  except  as  to  the  covenant 
for  renewal  itself. 

In  the  second  case  the  lease  provided 
that  after  the  expiry  of  the  term  the  lessor 
would  have  power  to  re-settle  the  land  with 
the  lessee  on  a  fair  rent.  It  was  held  that 
the  last  clause  was  intended  to  be  a  cove- 
nant for  renewal  and  that  the  Govern- 
ment was  entitled  only  to  alter  the  rent  on 
renewal. 

In  the  third  case  the  lease  contained  a 
covenant  that  upon  the  expiry  of  the  term 
the  tenant  would  take  a  fresh  settlement 
and  that  the  landlord  would  grant  him  such 
settlement. 

None  of  these  cases,  as  I  have  said,  meets 
the  present  case.  It  is  clear  from  the 
clauses  I  have  cited  that  the  lessee  was 
given  three  options,  he  could  either  leave 
the  premises  at  the  end  of  the  term,  or  he 
could  take  a  fresh  settlement,  meaning 
thereby  a  settlement  on  fresh  terms  as  to 
rent,  or  he  could  hold  on  at  a  rent  which 
was  arranged  to  be  at  the  rate  of  Rs.  100 
a  month. 

The  decree  and  the  compromise  were 
drafted  in  English  and  the  meaning  of  a 
fresh  settlement  is  clear.  It  meant  that  the 
parties  would  meet  and  agree  to  the  terms 
on  which  the  lease  was  to  be  renewed.  The 
clauses  taken  as  a  whole  show  that  the 
plaintiffs  were  indifferent  whether  the 
defendants  left  at  the  end  of  the  11  years 
or  stayed  on.  It  was  agreed  that  if  they 
did  want  to  stay,  they  must  either  take  a 
fresh  settlemnet  or  remain  on  paying  a  rent 
which  the  parties  evidently  agreed  v.ould 

(2)  17  Ind.  Gas.  180;  16  0.  L.  J.  217, 

(3)  33  Ind.  Cas,  448;  20  Q.  W,  N.  948, 


JITflNDRA  NATH  CHATTEwJEE  0   JASODA  SAHUN. 


[92  L  0.  1926] 

\>e  a  fair  one  after  the  lapse  of  11  years,  at 
the  rate  of  Rs,  100  per  month. 

The  case  is  almost  exactly  similar  to  the 
case  of  Gunpat  Singh  v,  Josodhur  Singh  (4). 
There  the  kabuliyate  stated  that  after  the 
expiry  of  a  term  of  five  years  the  defendant 
would  cease  to  have  any  right  to  retain 
possession,  but  in  case  he  failed  to  execute 
a  fresh  kabuliyat,  the  landlords  should 
have  power  to  realise  rent  at  Rs.  5  per  bigha 
on  the  strength  of  the  said  kabuliyats  and 
the  defendants  would  have  no  objection 
to  that.  It  was  held  that  the  plaintiffs  were 
entitled  to  demand  rent  at  the  rate  of  Rs  5 
a  bigha  and  the  stipulation  of  payment  of 
rent  at  that  rate  was  not  a  penalty  by  reason 
of  the  non-  execution  of  fresh  kabuhyats.  It 
has  been  sought  to  compare  this  last  cited 
case  with  the  case  of  Abdul  Aziz  v.  Karu 
(5),  but  the  latter  is  quite  a  different  case. 
It  was  there  provided  that  the  tenant  should 
give  up  the  land  on  the  expiry  of  the  term 
and,  if  upon  the  expiry  of  the  term,  he 
claimed  a  right  of  occupancy  or  caused  a 
claim  to  be  put  up  by  any  other  person,  he 
would  be  liable  whilst  holding  over  to  pay 
a  higher  rent.  It  was  held  that  the  clause 
as  regards  the  payment  of  higher  rent  being 
in  the  nature  of  a  penalty  was  not  enforces 
able.  The  penalty  in  that  case  was  for  the 
tenant's  action  in  setting  up  a  right  of  occu- 
pancy and  claiming  to  be  not  liable  to 
ejectment.  That  case  too  does  not  affect 
the  question  of  renewal  but  only  that  of 
penalty.  In  my  mind  it  is  quite  clear  that 
what  the  parties  intended  was  that  if  the 
defendants  wanted  to  occupy  the  premises 
after  the  expiry  of  1917  they  could  either 
take  a  fresh  settlement  or  remain  in  occu- 
pation without  a  fresh  settlement  on  a  rent 
of  Rs.  100  per  month  which  the  parties  at 
that  time  thought  would  be  a  fair  rent  after 
the  lapse  of  11  years. 

With  regard  to  the  question  of  penalty, 
it  is  hard  to  understand  how  the  clause  as 
it  is  framed  could  be  construed  to  intend  a 
penalty.  There  was  no  obligation  on  the 
defendants  to  occupy  the  house  or  to  take 
a  fresh  settlement  and  a  penalty  under  s. 
74  of  the  Contract  Act  will  only  follow  some 
breach  of  contract  or  obligation.  There  is 
no  obligation  in  the  present  case.  Mr 
Hasan  Imam  has  relied  on  the  case  of  John 
Pierpont  Morgan  v.  Ramjee  Ram  (6),  where 

(4)  50  Ind  Cas.  516,  17  0    L.  J  590, 

(5)  21  Ind  Oas.  443;  18  0.  L  J  95 

(6)  56  Ind  Oas.  366,  5  P  I*  J,  302;  (1920)  Pat,  168; 
I  P.  L.  T.  3JO, 


619 


it  was  held  that  where  a  lease  contains  a 
stipulation  that  the  lessee  shall  pay  mesne 
profits  at  an  unduly  high  rate  on  failure  to 
give  up  the  land,  which  formed  the  sub- 
ject-matter of  the  lease  on  the  expiry  of  the 
term,  the  Court  has  power  to  alter  the  rate 
agreed  upon  as  being  in  the  nature  of  a 
penalty,  but  in  that  case  there  was  an  obli- 
gation for  the  tenant  to  leaye  at  the  end 
of  the  term  and  the  penalty  was  to  cover 
any  action  of  the  raiyat  in  refusing  to  give 
up  the  land  on  the  ground  that  he  had  an 
occupancy  right. 

However,  in  the  present  case  it  has  to  be 
remembered  that  cl,  (5)  forms  part  of  a  dec- 
ree, and  I  need  only  refer  to  the  case  of 
Shirekuh  Timapa  Hegda  v.  Mahablya  (7). 
It  was  there  held  that  the  doctrine  of  penal- 
ties was  not  applicable  to  stipulations  con- 
tained in  decrees  In  that  judgment  Bird- 
wood,  J  ,  cited  the  followiug  remarks  made 
by  West,  J.,  in  the  case  of  Balprasad  v. 
Dharnidhor  Sakharam  (8): — ''  The  princi- 
ples which  govern  the  enforcement  of  con- 
tracts and  their  modification,  when  justice 
requires  it,  do  not  apply  to  decrees  which, 
as  they  are  framed,  embody  and  express 
such  justice  as  the  Court  is  capable  of  con- 
ceiving and  administering.  The  admission 
of  a  power  to  vary  the  requirements  of  a 
decree  once  passed  would  introduce  uncer- 
tainty and  confusion.  No  one's  rights 
would,  at  any  stage,  be  so  established  that 
they  could  be  depended  on,  and  the  Courts 
would  be  overwhelmed  with  applications 
for  the  modification,  on  equitable  principles, 
of  orders  made  on  a  full  consideration  of 
the  cases  which  they  were  meant  to  termi- 
nate It  is  obvious  that  such  a  state  of 
things  would  not  be  far  removed  from  a 
judicial  chaos;  and  as  ordinary  decrees  are 
thus  unchangeable,  so  we  think  are  those 
in  which  through  a  special  provision  for 
the  convenience  of  parties,  their  own  dis- 
posals of  their  disputes  are  embodied.  The 
doctrine  of  penalties  is  not  applicable 
to  such  a  class  of  cases,  and  those  who, 
with  their  eyes  open  have  made  alternative 
engagements  and  invited  alternative  orders 
of  the  Court,  must,  if  they  fail  to  perform 
the  one,  perform  the  other,  however  great- 
ly severe  its  terms  may  be." 

The  defendants,  therefore,  cannot  but 
forward  the  doctrine  of  penalties  in  the 
present  case  considering  that  they  held 

(7)  10  B.  435,  5  Tnd  Dec  (v  8 )  678 

(8)  10  B  437/i,  Unrep    V    J   B  EL  C,  R,  (1874-7) 
668,  5  Ind  Dec.  (N.  a )  679n,  ( 


620 


ABDUL  BAHIMAN  SAtilB  &  CO.  V    SHAW  WALLACE  &  CO. 


(92  L  0.  1926] 


their  premises  under  the  terms  of  the  com- 
promise embodied  in  the  decree. 

With  regard  to  the  question  of  interest 
which  forms  the  subject  of  the  cross-ap- 
peal, in  my  opinion,  the  learned  District 
Judge  was  quite  correct  in  disallowing  in- 
terest previous  to  the  27th  December  19^0 
not  because  the  interest  should  be  reckon- 
ed only  from  the  date  of  notice  but  because 
the  increase  in  the  rent  is  so  large  that  I 
think  it  is  only  fair  that  the  defendants 
should  not  be  called  upon  to  pay  more  by 
way  of  interest. 

I  would  dismiss  the  appeal  and  cross-ap- 
peal with  costs. 

Sen,  J.— I  agree. 

Z,  K.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

ORDINARY  ORIGINAL  CIVIL  JURISDICTION 
APPLICATION  IN  CIVIL  SUIT  No.  827  OF  1921 

September  11,  1924. 
Present — Mr,  Justice  Devadoss. 
R.  K.  ABDUL  RAHIMAN  8AH1B  & 
CO. — PLAINTIFFS 

versus 

MESSRS.  SHAW  WALLACE  &  CO,— 
DEFENDANTS 

Insolvency — Suit  by  insolvent  continued  by  Official 
Assignee— Dismissal  of  suit— Costs,  whether  payable 
personally  by  Official  Assignee 

Where  during  the  pendency  of  a  suit  the  plaintiff 
becomes  an  insolvent  and  the  Official  Assignee  con- 
tinues the  action  knowing  that  it  is  wholly  unsus- 
tainable, or  where  in  the  conduct  of  the  action  he  is 
guilty  of  any  conduct,  which  a  prudent  man  would 
not  be  a  party  to,  it  would  be  open  to  the  Court  to 
direct  the  Official  Assignee,  to  pay  the  costs  of  the 
action  personally  But  where  there  is  a  bonafide 
dispute  and  the  facts  are  such  that  it  would  not  be 
easy  to  decide,  whether  the  bankrupt  has  a  good  case 
or  not,  the  Official  Assignee  should  not  be  made  to 
pay  the  costs  personally  out  of  his  pocket,  [p.  620, 
col  2] 

In  re  Williams  cfe  Co ,  Ex  parte  Official  Receiver, 
(1911)  2KB  88;  82  L  J  K  B.459;  108  L  T.  585;  20 
Hanson  21,  57  S.  J  285,  29  T  L.  R  243,  followed.  ^ 

Mr.  G.  Krishnaswami  Iyer,  for  the  Plaint- 
iffs. 

Mr.  N.  Rajagopalan,  for  the  Defendants. 

JUDGMENT. — This  is  an  application 
by  the  defendants,  for  bringing  the  decree 
into  conformity  with  the  judgment  and  for 
making  the  Official  Assignee  pay  the  costs 
of  the  action  personally  and  for  other  relief. 
In  my  judgment  *  I  held  that  the  defendants 
•were  entitled  to  the  costs  of  the  action. 
Mr  TUiagopalan,  \vhoappears  for  the  de- 


fendants,    contends  that  the  decree  is  not 
in  conformity  with  the  judgment,  inasmuch 
as  the  decree  contains  the    words,   "  from 
and  out  of  the  estate  of  the  first  plaintiffs, 
adjudicated  insolvents  in  his  hands.'1    It  is 
urged  that  when  the  Official  Assignee  is  a 
party  to  a  suit,  the  proper  order  to  make  is 
to  make  him  pay  the  costs  personally.  Mr 
Rajagopalan     relies    upon    Borneman    v, 
Wilson  (l),  London  School  Board  v.  Wall(2), 
Hill  v.  Cooke  Hill  (3)  and  also  In  re  Suresh , 
Clmnder  Gooyee  (4).    These    cases    do  not 
support  the    contention  of  the  defendants. 
It  is  in   the  discretion  of  the    Court,  which 
decides  the     case,    to    direct    the    Official 
Assignee,  or  the  trustee  in  bankruptcy,  to 
pay  the  costs  personally.     If  the  action  is 
by  the  insolvents  and  the  Official  Assignee 
continues  the  action,  knowing  that  the  ac- 
tion is  wholly  unsustainable,  or  that  in  the 
conduct    of  the  action  he  is    guilty  of  any 
conduct,  which  a  prudent  man  would  not 
bo  a  party  to,  then  it  would  be  open  to 
the  Court,  to  direct  the  Official  Assignee, 
to  pay  the  costs  of  the  action    personally. 
But  where  there  is  a  bona  fide  dispute  and 
where  the  facts  are  such  that  it  would  not 
be  easy  to  decide,  whether    the  bankrupt 
has  a  good  case  or  not,  the  Official  Assignee 
if  he  acts  bona  fide,  should  not  be  made  to 
pay  the  costs  personally,  that  is,  out  of  his 
pocket ;  but  he  is  entitled  to  have  an  order 
made,  to  pay  the  costs  out  of  the  estate.    In 
this  case,  there  was  a  bona  fide  dispute  and 
the  question  was  not    free  from   difficulty. 
After  a  protracted  argument,  I  came  to  the 
conclusion  that  the  plaintiffs    were  not  en- 
titled to  succeed  in  the  action.    That  being 
so,  I  think  the   Official  Assignee    was  well 
advised  in  continuing  the    suit,    after  the 
plaintiffs  became  insolvent;   and  this  is  not 
a  fit  case    in  which  the  Official  Assignee 
should  be  directed  to  pay  the  costs  of  the 
action  personally.     In  this   connection,  I 
may   refer  to   a  case    reported   in    In  re 
Williams  &  Co.,  Ex  parte  Official  Receiver 
(5).    When  I  delivered  my  judgment,  I  did 
Dot  intend  that  the  Official  Assignee  should 
pay  the  costs  personally.    The  decree,  as 
drawn  up,  is  correct  ;  but  the  costs  of  the 
defendants  should  be  paid,  out  of  the  estate 
and  they  should  not  be  asked  to  rank  aa 

(1)  (1885)  28  Ch  D.  53;  5i  L.  J.  Oh  631;  51  L.  T. 
728;  33  W.  R,  141. 

(2)  (1891)  8  Morrell  202. 

(3)  (1916)  W.  N.ei. 

(4;  51  Ind  Gas  654;  23  0.  W.  N.  431 
(5)  (1913)  2KB.  88;  82  L.  J.  K  B.  459;  103  L.  T, 
585;  20  Hanson  21;  57  S,  J,  285;  29  T.  L,  R.  843. 


[&2  L  0. 1926J 


KAL1BA  8AHIB  V.  8UBBARAYA  AYYA*. 


621 


creditors  in  respect  of  the  costs  they  have 
incurred  in  the  suit.  This  application  is 
dismissed,  but  without  costs. 

Application  dismissed. 


V,  N  V. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

FOREIGN  COURT  DECREE  No  58  OF  1922 

EXECUTION  MISCELLANEOUS  APPLICATION 

No.  464  OP  1924. 

April  8,  1925. 

Present. — Mr  Rupchand  Bilaram,  A  J.  C, 
MESSRS.  LANGLBY  BILLIMORIA 

AND  Co  — DEORBK-HOLDERS— PLAINTIFFS 
versus 

FIRM  OF  LAKHMICHAND-GOPALDAS 
(ji  m-— JUDGMENT-DEBTORS— DEFENDANTS. 

Civil  Procedure  Code  (Act  V  of  1908),  ss  80,  4&, 
J+6— Transfer  of  deciee  for  execution— Court  to  which 
decree  transferred,  whether  can  issue  precept 

A  Court  to  which  a  decree  has  been  transferred  for 
execution  is  not  competent  to  issue  a  precept  under 
s  46  of  the  C  P  C 

Mr.  Pahlajsing  B.  Advam,  for  the  Appli- 
cant 

ORDER. — This  decree  has  been  trans- 
terred  by  the  Bombay  High  Court  to  this 
Court  for  execution.  The  judgment  credi- 
tors have  obtained  attachment  of  certain 
debts  and  certain  moveable  property 
within  the  ordinary  jurisdiction  of  this 
Court.  They  have  upto  now  realized 
nothing.  On  November  27,  1924,  they 
obtained  a  precept  from  this  Court  for 
attachment  of  certain  immoveable  proper- 
ties at  Shikarpur  outside  the  ordinary 
jurisdiction  of  this  Court.  This  order  was 
passed  under  a  misapprehension  as  to  the 
nature  of  the  decree  and  the  effect  of  s.  46, 
0.  P.  C.  The  period  for  which  the  precept 
was  in  force  has  expired.  The  judgment- 
creditors  have  repeated  their  application 
lor  a  fresh  precept. 

Section  46,  C.  P.  C.,  enables  a  judgment- 
creditor  to  apply  for  a  precept  to  "the 
Court  which  passed  the  decree  "  Admit- 
tedly this  Court  has  not  passed  the  decree. 
It  is  urged  that  this  section  is  to  be  read 
with  s.  42  of  the  Code  which  confers  on 
this  Court  in  executing  this  decree  the 
fcame  powers  as  the  original  Court  and  the 
issue  of  a  precept  is  only  a  step  in  execu- 
tion of  tha  decree.  I  am  not  prepared  to 
bold  that  s,  42  of  the  Code  is  intended  to 


enlarge  the  scope  of  s.  46  or  that  sufficient 
reasons  exist  for  deviating  from  the  ordinary 
rules  of  construction  of  interpreting  this 
section  literally.  The  provisions  ot  p.  4t5 
have  for  the  first  time  been  introduced  in 
the  Code  of  1908,  and  are  intended  to 
provide  for  interim  attachment  of  the 
property  of  the  judgment-debtor  pending 
the  transfer  of  the  decree  to  the  Court 
within  whose  jurisdiction  such  property  is. 
The  Bombay  High  Court  which  passed  the 
decree  and  not  this  Court,  is  competent  to 
order  this  decree  to  be  transferred  to  the 
Shikarpur  Court  for  execution.  The  fact 
that  the  decree  has  been  transferred  to 
this  Court  for  execution  has  not  deprived 
the  Bombay  High  Court  of  its  powers 
either  to  act  under  s.  46,  C.  P  C.,  or  to 
issue  simultaneous  execution  within  its 
own  jurisdiction  or  even  to  order  the  trans- 
fer of  this  decree  to  the  Shikarpur  Court 
for  simultaneous  execution.  There  is  no 
prejudice  to  the  judgment- creditors  in 
being  required  to  apply  for  a  precept  to 
the  High  Court  of  Bombay. 

The  literal  meaning  to  be  attached  to 
the  words  "the  Court  which  passed  the 
decree"  is  not  repugnant  to  the  geneial 
purview  of  the  Act  and  there  is  nothing  to 
show  that  it  was  intended  to  be  enlarged 
by  reading  into  the  section  the  words  "or 
the  Court  to  which  the  decree  has  been 
transferred  for  execution."  I  must,  there- 
fore, reject  this  application  as  incompetent, 

p,  B.  A.  Application  rejected. 


MADRAS  HIGH  COURT. 

REFERRED  CASE  No.  12  OF  1924. 

September  1,  1925. 
Present  — Mr.  Justice  Devadoss  and 

Mr.  Justice  Waller. 

K.  KALIBA  SAHIB  AND  OTHERS— 

PLAINTIFFS 

versus 
SUBBARAYA  A YYAR— DEFENDANT. 

Provincial  Small  Cause  Courts  Act  (IX  of  188?) 
s  28— Civil  Procedure  Code  (Act  V  of  1908),  0  VII, 
r  10— District  Munsif  exercising  small  cause  jurisdic- 
tion, whether  bound  by  judicial  order  of  District  Judge 
on  appeal  from  Revenue  Court — Order  of  District 
Judge  holding  suit  as  cognisable  by  Civil  Court,  effect 
of 

A  District  Munsif  acting  as  a  Small  Cause  Court 
Judge  is  subject  to  the  administrative  control  of  the 
District  Court  under  s  28  of  the  Provincial  Small 
Cause  Courte  Act,  but  he  is  not  bound  by  an  order 


622 


CHANfcRABflAN  PRAKASHNAf  fl  V.  E,  I.  ft*  CO. 


[92  I.  0. 


of  the  District  Judge  passed  in  his  judicial  capacity 
on  an  appeal  from  a  Revenue  Court. 

Where,  therefore,  a  District  Judge  on  appeal  from 
a  Revenue  Court  holds  that  a  suit  is  cognisable  by 
the  Civil  Court,  and  in  pursuance  of  such  order  the 
plaint  is  presented  in  the  Coui  t  of  a  District  Munsif 
on  the  small  cause  side,  the  latter  is  not  bound  by 
the  order  of  the  District  Judge,  and  is  at  liberty  to 
hold  that  the  suit  is  not  cognisable  by  a  Civil  Court 
[p.  622,  col.  2.] 

Case  stated  under  rr.  1  and  6  of  0.  XLVI 
of  Act  V  of  1908  by  the  District  Munaif, 
Negapatam,  in  8.  0.  No.  159  of  1924  on  his 
file  for  the  orders  of  the  High  Court  on  the 
point  whether  said  Small  Cause  Suit  No.  109 
of  1924  is  triable  by  the  District  Munsif  in 
pursuance  of  the  order  of  the  District 
Court,  East  Tanjore,  at  Negapatam,  when 
that  District  Munsif  V  Court  had  already 
held  that  it  had  no  jurisdiction  to  try  the 
said  suit. 

Mr.  R.  Kuppusami  Aiyar,  for  Plaintiffs 
Nos.  1,  3  and  7. 

Mr.  V.  K,  Srinivasa  Aiyangar,  for  the 
Defendant. 

JUDGMENT.— This  is  a  reference  by 
the  District  Munsif  of  Negapatam  under 
0,  XLVI,  rr.  land  6  of  the  0.  P.  C.,and  the 
question  referred  is  in  these  terms: — 

"Is  not  this  Court  competent  to  proceed 
with  the  trial  of  this  suit  in  pursuance  of 
the  order  of  the  District  Court  in  C,  M.  A. 
No.  101  of  1923  preferred  against  the 
order  of  the  Revenue  Divisional  Officer 
when  this  Court  on  its  small  cause  side 
had  already  held  that  it  had  no  jurisdiction 
to  try  this  suit.1' 

The  suit  was  brought  in  the  District 
Munsif  s  Court  on  its  small  cause  side  by 
the  trustees  of  Nagore  Durga  for  rent.  The 
defendant  contended  that  the  property  in 
his  possession  formed  part  of  *an  estate 
and  that  a  Civil  Court  had  no  jurisdiction 
to  try  the  case.  The  District  Munsif  held 
that  he  had  no  jurisdiction  to  try  the  case 
and  directed  that  the  plaint  be  returned  to 
the  plaintiffs  for  presentation  to  the  pro- 
per Court.  The  plaint  was  presented  to  the 
Revenue  Divisional  Officer  and  he  held  that 
the  defendant  was  not  a  raiyat  under  Act 
1  of  1908  and  directed  the  return  of  the 
plaint  to  the  plaintiffs.  Against  this  order 
of  the  Revenue  Divisional  Officer,  the  plaint- 
iffs appealed  to  the  District  Court  of 
Negapatam  and  the  District  Judge  held 
that  the  Revenue  Court  had  no  jurisdiction 
fitnd  that  the  Civil  Court  had  jurisdiction 
to  try  the  case.  The  plaint  was  again 
presented  to  the  District  Munsif.  The  Dis- 
trict Munsif  was  confronted  with  his  pre- 


vious order  that  the  Civil  Court  had  no 
juiisdiction  and  the  order  of  the  District 
Judge  that  the  Revenue  Court  had  no 
juiisdiction  and  that  the  Civil  Court  had 
jurisdiction  to  try  the  case.  The  order  of 
the  District  Court  on  appeal  from  the 
Revenue  Divisional  Officer  is  not  binding 
on  the  District  Munsif.  The  District  Munsif 
evidently  was  under  the  impression  that  he 
being  subordinate  to  the  District  Judge 
was  bound  by  his  order.  The  District 
Munsif  acting  as  a  Small  Cause  Judge  is 
subject  to  the  administrative  control  of  the 
District  Court  under  s.  28  of  the  Provincial 
Small  Cause  Courts  Act,  but  he  is  not  bound 
by  an  order  of  the  District  Judge  passed  in 
his  judicial  capacity  on  an  appeal  from 
the  Revenue  Court  As  we  are  of  opinion 
that  the  order  of  the  District  Judge  in  0. 
M.  A.  No.  101  of  1923  is  not  binding  upon 
the  District  Munsif  he  is  at  liberty  to  pass 
any  order  he  likes,  either  party  will  be 
entitled  to  move  this  High  Court  against 
the  order  of  the  District  Munsif  and  the  de- 
cision of  the  High  Court  in  revision  against 
the  order  of  the  District  Munsif  will  bind 
the  District  Munsif  as  well  as  the  District 
Court.  It  is  not  necessary  that  the  question 
referred  to  us  should  be  answered  at  this 
stage.  The  papers  will  be  returned  to  the 
District  Munsif. 


V.    N.  V. 
Z.  K. 


Papers  returned. 


ALLAHABAD  HIGH  COURT, 

CIVIL  REVISION  No.  109  OF  1925. 

December  2,  1925. 

Present: — Mr.  Justice  Mukerji. 

FIRM  CHANDRABHAN  PRAKASHNATH 

— PLAINTIFF— APPLICANT 

versus 

EAST  INDIAN  RAILWAY  COMPANY 
—DEFENDANT—OPPOSITE  PARTY. 

Railways  Act  (IX  of  1890),  ss  75,  SU—Goods  re- 
quiring to  be  insured  consigned  for  carriage  over 
two  Railways— Non-delivery  -  Suit  for  compensation 
against  Railway  other  than  that  to  which  goods  con- 
signed—Insurance, absence  of —Loss,  proof  of —Liabil- 
ity of  Railway  Company 

In  a  suit  to  recover  compensation  from  a  Railway 
Company  for  the  non-delivery  of  articles  of  special 
value,  consigned  to  the  Company  for  carriage  the 
latter  can  claim  protection  under  s.  75  of  the  Railways 
Act  only  if  it  is  proved  that  the  articles  have  been 
lost  If  the  articles  are  still  in  the  possession  of  the 
Railway  Administration  and  it  fails  to  deliver  the 
articles,  it  cannot  take  advantage  of  the  provisions  of 
8,75.  [p,  623,  cola,  i&  8.J 


[92  L  0,  1926]  CHAWDRABHAN  PRAKASHNATfl  V.  E.  I.  R.  06, 


623 


Where,  however,  the  suit  is  brought  not  against  the 
Railway  to  which  the  goods  were  delivered,  but  against 
a  Kail  way  over  whose  system  they  had  subsequently 
to  be  carried,  the  suit  is  maintainable,  under  s  80 
of  the  Railways  Act,  only  on  the  assumption  that  the 
goods  have  been  lost  while  in  the  custody  of  such 
Railway,  and  the  latter  is,  therefore,  entitled  to  claim 
the  protection  of  s,  75  of  the  Act,  without  any  further 
proof  of  the  loss  of  the  goods  [p  623,  col.  2,  p.  624, 
col  1] 

When  goods  delivered  to  a  Railway  Company  for 
carriage  are  not  forthcoming  for  delivery  at  the  desti- 
nation and  their  whereabouts  are  not  known,  it 
must  be  assumed  that  they  have  been  lost  [p  624,  col. 

Civil  revision  from  an  order  of  the 
Judge,  Small  Cause  Court,  Agra,  dated 
the  14th  of  March  1925. 

Dr.  K.  N.  Katju,  for  the  Applicant. 

Mr.  Ladli  Prasad  Zutshi,  for  the  Opposite 
Party. 

JUDGMENT.— This  is  an  application 
in  revision  by  a  plaintiff  firm  whose  suit 
against  the  East  Indian  Railway  Company 
has  been  dismissed  by  a  learned  Judge  of 
the  Small  Cause  Court. 

It  appears  that  a  consignment  of  glass 
bangles  consisting  of  six  bundles  was  sent 
to  the  address  of  the  plaintiff  from  Wadi 
Bunder  in  Bombay  for  delivery  at  Feroza- 
bad.  Out  of  the  six  bundles  only  fourwere 
delivered.  It  was  with  respect  to  the  two 
bundles  not  delivered  that  the  suit  was 
brought  for  compensation. 

The  learned  Judge  found  that!  at  the 
Tundla  Railway  Station,  the  goods  had 
been  handed  over  to  the  East  Indian  Rail- 
way Company  and  that,  therefore,  the 
East  Indian  Railway  Company  would  be 
responsible  for  the  compensation.  He,  how- 
ever, held  that  glass  bangles  of  the  value 
consigned  were,  under  the  law  liable  to  be 
insured  for  their  safe  conveyance  and  that 
there  being  no  insurance  and  there  being 
no  declaration  of  the  value  and  the  con- 
tents of  the  bundles  the  defendants  were 
not  liable. 

No  evidence  has  been  adduced  by  the 
respondents  to  prove  that  the  two  bundles 
out  of  six  were  actually  lost  by  them.  That 
being  the  case,  the  learned  Counsel  for  the 
applicants  contends  that  it  is  quite  possible 
that  the  two  bundles  are  still  in  the 
custody  and  possession  of  the  respondents 
and  that  unless  and  until  they  prove  that 
the  bundles  have  been  lost,  they  cannot 
take  advantage  of  the  rule  that  they  are 
not  responsible  for  the  loss  of  those  articles 
which  should  have  been  insured,  but  which 
have  not  been  insured.  There  can  be  no 
doubt  that  if  the  articles  be  still  in  the 


possession  of  the  Railway  Administration, 
and  if  they  have  failed  to  deliver  the  arti- 
cles in  their  possession  they  cannot  take 
advantage  of  s.  75  of  the  Railways  Act.  It 
is  only  when  the  articles  have  been  lost 
by  them  that  the  respondents  can  claim 
protection  under  s.  75  of  the  Railways  Act. 

In  answer  to  this  contention  the  learned 
Counsel  for  the  respondents  has  pointed 
out  that  it  must  ba  taken  that  the  goods 
have  been  lost  while  in  transit  on  the 
Railway  of  the  defendants  as  otherwise  he 
contends,  the  suit  would  not  at  all  be 
maintainable  against  the  respondents.  It 
is  conceded  on  behalf  of  the  applicant 
that  the  plaint  was  wrong  in  the  statements 
it  contained,  viz.,  the  goods  had  been  hand- 
ed over  to  the  East  Indian  Railway  Ad- 
ministration at  Bombay.  As  a  matter  of 
fact,  the  Railway  Administration  to  whom 
the  goods  were  handed  over  was  the  Great 
Indian  Peninsula  Railway,  East  Indian 
Railway  were,  therefore,  not  a  contracting 
party  with  the  plaintiff  firm.  Under  s.  80 
of  the  Railways  Act  a  suit  can  be  brought 
for  compensation  fpr  loss  of  goods  against 
either  the  party  to  whom  they  were  deliver- 
ed for  conveyance  or  the  party  on  whose 
Railway  the  loss  occurred.  East  Indian 
Railway  not  being  the  contracting  party 
can  be  held  responsible  only  on  the  ground 
that  it  was  on  their  Railway  that  the  loss 
of  the  goods  occurred.  It  is  urged  that  if 
the  respondents  are  to  be  held  liable  they 
can  be  held  liable  only  on  the  assumption 
that  the  goods  were  lost  while  on  their 
Railway.  The  case  of  G.  /.  P.  Railway  v* 
Sham  Manohar  (1)  has  been  cited  in  sup- 
port of  this  view. 

In  my  opinion,  the  contention  of  the 
learned  Counsel  for  the  respondents  is 
sound.  On  behalf  of  the  applicants  it  has 
been  urged  that  supposing  there  was  a 
misdelivery  of  the  goods  by  the  East 
Indian  Railway  at  Ferozabad,  that  Adminis- 
tration could  be  held  liable  under  s.  #0  of 
the  Railways  Act.  I  am  not  prepared  to 
express  any  opinion  on  the  hypothetical 
case  put  before  me  by  the  learned  Counsel 
for  the  applicants.  It  may  be  that  mis- 
delivery of  property  by  East  Indian  Rail- 
way would  make  them  liable  under  s.  80 
of  the  Railways  Act.  But  even  then  the 
loss  would  be  loss  by  the  Railway  Com- 
pany although  it  would  also  be  a  loss  to 
the  owner.  To  give  the  word*' loss11  its 
plain  meaning,  when  a  certain  article  de* 

(1)  U  Ind,  Gas.  603;  34  A,  m\  9  A,  L,  J,  492, 


44ft 


livered  to  the  Railway  Company  is  not  forth- 
coming for  delivery  at  the  destination  and 
its  whereabouts  are  not  known  one  would 
say  that  the  article  has  been  lost.  In  order  to 
make  East  Indian  Railway  Company  liable 
the  plaintiffs  must  allege  that  the  goods 
were  lost  by  something  done  by  or  by  some 
neglect  of  the  East  Indian  Railway  Ad- 
ministration. If  that  be  so,  the  loss  is 
equally  a  loss  within  the  meaning  of  s.  75 
of  the  Railways  Act.  The  loss  was  of  a 
part  of  goods  of  the  value  of  over  Rs.  100 
and  of  a  kind  which  was  liable  to  be  in- 
sured. The  result  is  that  non-insurance 
makes  the  claim  unmaintainable. 

I  hold  that  the  revision  has  no  substance 
and  must  fail  and  is  hereby  dismissed  with 
costs  which  will  include  Counsel's  fees  in 
this  Court  on  the  higher  scale. 

Z.  K. 

Revision  dismissed. 


MADRAS  HIGH  COURT. 

STAMP  REGISTER  No.  14383  OF  1924. 

August  18,  1925. 
Present: — Mr.  Justice  Phillips  and 

Mr.  Justice  Eamesam. 

In  re  TIRUVANQALATH  NELLYOTON 

PAIDAL  NAYAR  AND  OTHERS — PLAINTIFFS 

APPELLANTS. 

Court  Fees  Act  (VII  of  1870),  s.  7,  (tx),  Sch.  I, 
Art  I—Suit  for  redemption  o/  kanom--- Decree  for  pos- 
pession  on  payment  of  mortgage  amount  and  value  of 
improvements — Appeal  revalue  of  improvements  — 
Court-fee  payable 

The  principle  of  the  Court  Fees  Act  is  that  the 
plamtift  should  pay  a  Coui  t-f ee  in  proportion  to  the 
value  of  the  relief  he  seeks  That  value  if  possible, 
is  determined  in  money  but  where  there  is  no  money 
value  or  the  money  value  13  ixncertam,  the  Act  pro- 
vides rules  according  to  which  the  valuation  shall  be 
made,  [p.  625,  col.  1 J 

The  value  of  an  appeal  is  not  in  all  cases  the  value 
of  the  suit  as  originally  filed,  but  may  be  the  value 
of  the  relief  granted  by  the  decree  which  the  appellant 
Dishes  to  get  rid  of  [p  625,  col  2.J 
t  Where  in  a  suit  for  redemption  of  a  kanom,  a 
decree  for  possession  was  passed  on  payment  of  the 
amount  of  mortgage  and  the  value  ot  improvements 
and  an  appeal  was  filed  which  related  only  to  the 
value  of  improvements  payable: 

Held,  that  s.  7,  ix  of  the  Court  Fees  Act  was 
inapplicable  and  that  Court-fee  was  payable  on  the 
memorandum  of  appeal  not  on  the  mortgage  amount 
but  ad  valorem  on  the  amount  m  dispute  in  appeal 
under  Art.  1  of  Sch.  I  to  the  Court  Fees  Act.  !  p.  025, 
<?ols.  1  &  2.] 

Reference  under  Court  Fees  Act,  29  M.  367;  16  M. 
L.  J,  287,  Nepal  Rai  v.  Dtbi  Prasad,  27  A,  147;  2  A. 
L.  J,  105;  A.  W.  N.  (1905)  40,  In  re  Parkodi  Achi.  6* 
tod-  Cas.  444;  45  M,  246;  14  L.  W.  624;  41  M,  L  J 


In  re  TKRUVANGALATH  NELLYOTON  PAID  At  NAYAR.          [92  I.  C.  1926] 


587,  (1921)  M.  W.  N  854;  30  M.  L.  T.  88;  (1922)  A.  L 
R  (M  )  211  and  Lekh  Ham  v  Ram]i  Das,  57  Ind  Cas. 
215,  1  L  *34,  followed. 

Stamp  reference  on  the  question  which 
is  the  subject-matter  in  dispute  in  the  second 
appeal  sought  to  be  preferred  against  the 
decree  of  the  District  Court,  North 
Malabar,  in  A.  8.  No  135  of  1923,  preferred 
against  a  decree  of  the  Court  of  the  Ad- 
ditional District  Munsif,  Tellicherry  in 
0.  8.  No.  324  of  1921  whether  the  enhanced 
amount  of  compensation  to  which  alone 
the  appeal  relates  or  the  right  to  redeem, 
which  was  the  subject-matter  of  the  suit. 

Mr.  K.  P.  Ramakrishna  Iyer,  for  the  Ap- 
pellant. 

Mr.  C.  V.  Anantakrishna  Iyer,  for  the 
Government. 

JUDGMENT. 

Phillips,  J.— This  is  a  reference  under 
s.  5  of  the  Court  Fees  Act.  The  plaintiff  filed 
a  suit  for  redemption  of  a  kanom.  He 
obtained  a  decree  for  recovery  of  possession 
of  property,  subject  to  payment  of  the 
kanom  amount  and  the  value  of  improve- 
ments. In  appeal,  there  is  no  dispute  as 
to  plaintiff's  right  to  redeem  but  he  appeals 
against  the  value  allowed  for  improve- 
ments. The  question  is: — What  is  the  pro- 
per Court-fee  payable  on  the  memorandum 
of  appeal  ? 

The  reference  has  been  made,  because  as 
a  matter  of  practice,  the  Taxing  Officer 
has  been  following  the  decision  in  Reference 
under  Court  Fees  Act  s.  5,  (l)  where  it  was 
held  that  the  claim  for  improvements  being 
merely  incidental  to  the  decree  for  posses- 
sion, the  Court-fees  payable  was  that  pre- 
scribed by  s.  7,  cl.  ix  of  the  Court  Fees  Act, 
viz.,  on  the  principal  amount  of  the  mort- 
gage. It  appears,  on  a  reference  to  the 
papers  in  that  case,  which  was  an  ejectment 
suit  that  the  right  to  eject  was  in  dispute 
in  appeal  as  well  as  the  claim  for  improve- 
ments; but  in  answering  the  reference,  this 
Court  held  that  even  where  the  question 
raised  is  as  to  the  value  of  the  improve- 
ments, the  appellant  should  not  be  called 
upon  to  pay  any  fee  other  than  that  pay- 
able in  a  suit  for  possession  of  land.  This 
dictum  is  obiter  and  has  not  been  followed 
in  later  cases.  We  have  now  to  determine 
whether  the  practice  in  accordance  with 
this  dictum  is  correct.  The  payment  of 
compensation  for  improvements  under  the 
Malabar  Tenants  '  Compensation  Act  ia 
similar  in  nature  to  the  payment  of  money 

(1)  23  M,  84;  8  lad,  Dec.  (N,  8,)  453, 


[9§  I.  0.  1926]  j[n  re  TIRDVANGALATH 

due  under  a  mortgage,  for,  until  such  a 
payment  is  made,  the  landlord  or  moit- 
gagor,  as  the  case  may  be,  cannot  recover 
possession.  This  case,  therefore,  is  similar 
to  a  redemption  suit  where  the  amount  of 
mortgage  money  payable  is  in  dispute.  The 
principle  of  the  Court  Fees  Act  is  that  the 
plaintiff  should  pay  a  Court- fee  in  propor- 
tion to  the  value  of  the  relief  he  seeks 
That  value,  if  possible,  is  determined  in 
money  but  where  there  is  no  money  value 
or  the  money  value  is  uncertain,  the  Act 
provides  rules  according  to  which  the 
valuation  shall  be  made.  Section  7  deals 
with  the  valuation  of  suits  only,  except  m 
cl.  (iv)  where  the  valuation  of  an  appeal  is 
also  provided  for,  that  clause  deals  with 
cases  where  the  money  value  of  the  relief 
cannot  be  ascertained. 

The  general  provision  in  respect  of  ap- 
peals is  Art.  1,  Sch  I  which  provides  that 
the  fee  shall  be  paid  in  accordance  with  the 
amount  or  value  of  the  subject-matter  in 
dispute  and  it  is  clear  from  the  language 
that  the  words  t(in  dispute"  must  relate  to 
the  dispute  m  appeal  and  not  in  the  origi- 
nal suit.  It  would  thus  appear  that  the 
word  "suits"  mentioned  in  s.  7  does  not 
include  appeals  and  this  was  pointed  out 
in  Reference  under  Court  Fees  Act,  1870  (2), 
where  a  case  similar  to  the  present  one  was 
considered.  It  was  there  held  that,  when 
an  appeal  in  a  redemption  suit  related 
only  to  the  amount  of  mortgage  money  pay- 
able, the  fee  must  be  calculated  with  re- 
ference to  the  amount  in  dispute  in  appeal. 
This  case  exactly  covers  the  present  refer- 
ence and  it  is  not  quite  clear  why  it  has 
not  been  followed  by  the  Taxing  Officer 
It  purports  to  follow  a  case  in  Nepal  Rai 
v.  Debi  Prasad  (3)  and  dissents  from  a  con- 
trary decision  in  Pirbhu  Narain  Singh  v. 
Sita  Ram  (4)  The  view  in  Nepal  Rat  v. 
Devi  Prasad  (3)  was  also  followed  in  Ba]i  Lai 
v.  Gobardhan  Singh  (&)  and  Raghbir  Piasad 
v.  Shanker  Bux  Singh  (G).  There  are  cases 
in  this  Court  which  seem  to  support  Refer- 
ence under  Court  Fees  Act,  s  5(1),  Zamonn 
of  Calicut  v.  Surya  Narayana  Bhatta  (7), 
Reference  under  Court  Fees  Act,  s  5  (8)  and 

29  M.  367,  16  M.  L   J    287. 

27  A.  447,  2  A  L.  J  105,  A,  W  N.  (1905)  40 

13  A.  94,  A.  W.  N    (1890)  231,  7  Ind  Dec,  (N  B) 


NELLYOTON  PAIDAL 


(2) 
(1) 
(4) 

(5) 
(6) 
(F. 
(7) 
(8) 


1  Ind  Gas  1000,  31  A    265,  6  A  L  J  155. 

21  Ind.   Gas.  723,   36  A,  40,    11  A    L.  J.   1016 

,). 

5  M  284,  2  Ind  Dec    (N,S)  198 

U  M.  480;  5  Ind,  Dec.  (N,  B.)  335. 

40 


625 

Sekharan  Nair  v  Kongot  Eachoran  Nair  (9). 
In  all  these  cases  as  well  as  in  Reference 
under  Court  Fees  Act,  s  5(1),  the  question 
of  the  light  to  redeem  or  the  right  to  eject 
was  in  issue.  The  decision  in  Zamorin  of 
Calicut  v  Narayana  Bhatta  (7)  has  reference 
to  a  suit  and  not  to  an  appeal  and  conse- 
quent lys  7,  cl  fix)  is  directly  applicable.  In 
Reference  under  Court  Fees  Act  s.  5  (8)  the 
leferenee  was  made  in  connection  with  an 
appeal  but  the  judgment  deals  only  with 
the  question  of  suits  In  Sekharan  Nair  v. 
Kongot  E chat  an  Nair  (9)  the  right  to 
redeem  was  in  issue  and  it  was  held  that, 
where  the  only  question  laised  in  appeal  is 
as  to  the  amount  payable,  the  memorandum 
of  appeal  would  come  under  Art  1  of  Sch. 
I  for  the  purpose  of  computing  the  Court- 
fee.  In  In  re  Garapati  Butchi  Seethayamma, 
(10)  the  right  to  recover  land  was  in  issue 
in  the  suit  but  the  learned  Judge  in  his 
judgment  recognised  that  the  current  of 
authority  is  clearly  m  favour  of  the  view 
that  the  value  of  an  appeal  is  not  in  all 
cases  the  value  of  the  suit  as  originally 
filed,  but  the  value  of  the  relief  granted  by 
the  decree  which  the  party  wishes  to  get 
lid  of.  That  this  is  the  correct  view  is 
clear  from  the  frame  of  the  Court  Pees 
Act  which  provides  means  for  determin- 
ing the  value  of  the  relief  sought,  such 
value  cannot  always  be  accurately  deter- 
mined by  the  plaintiff,  when  he  files  the 
suit,  but  can  in  many  cases  be  definitely 
fixed  in  appeal,  after  the  decree  has  been 
passed,  the  value  being  the  difference  bet- 
ween the  amount  stated  in  the  decree  and 
the  amount  sought  by  the  plaintiff.  It  is 
only  in  veiy  rare  cases  that  an  appeal  can- 
not be  definitely  valued  and  such  cases  are 
provided  for  in  s.  7  cl.  (iv).  There  may  be 
other  instances  and  then,onewould  natural- 
ly look  to  the  provisions  of  the  Act  relat- 
ing to  suits  in  order  to  ascertain  the  value 
of  the  appeal. 

The  principle  laid  down  in  Reference 
under  Court  Fees  Act  1870  (t)  has  been 
adopted  in  In  re  Porkodi  Achi  (ll)  and  also 
by  the  Allahabad  High  Court  as  mentioned 
above,  and  by  the  Lahore  High  Court  ia 
Lekh  Ram  v.  Ramyi  Das  (12). 

(9)  3Iud  Cas  459,  20  M  UJ  121,6  M  L  T  245. 
(10;  85  lad  Cas  405,  21  L  W    15,   47  M    L  J  919J 
(1925)  A    I  R   (M  )  323,  48  M  652 

(11)  68  Ind    Cas  444,  45  M  246,    14   L  W   624,   41 
M  L.  J.   587;   (1921)  M  W  N    854;   30  M.  L.  T.  88, 
(1922)  A  I  K.  (M)  211. 

(12)  57  Ind.  Cas,  215;  1  L.  234. 


626 


AI,BLLA  KESAVARAMA^YA  V.  VtgAfcSB'ltl  VENKATANARASIMHA.          [92  I.  0.  1926J 


We,  therefore,  accept  the  ruling  in  Re- 
jerenee  under  Court  Fees  Act,  1870  (2)  and 
find  that  the  Court-fee  payable  in  the  pre- 
sent instance  must  be  determined  in  ac- 
cordance with  the  value  of  improvements 
which  the  appellant  seeks  to  avoid.  Time 
for  paying  the  additional  Couit-fee  is  ex- 
tended to  28th  August,  1925.  ! 

Ramesam,  J.— I  agree.  1 

v.  N.  v.  Reference  answered. 

z.  K. 


PATNA  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  206  OF  1920. 

June  10,  ly25 
Present : — Mr.  Justice  Adami  and 

Mr.  Justice  Sen. 
HITENDRA  SINGH  AN*  OTBERS- 

PBTITIONEtS 

versus 
MAHARAJADHIRAJ  OF  DARBHANGA— 

OPPOSITE  PARTT. 

Court  Fees  Act  (VII  of  1870),  ss  J,  12- Court-fee, 
payable,  on  memorandum  of  appeal — Taxinq  Otficer, 
order  of — High  Court,  interference  by — Refund  of 
Excess  fee  levied 

The  High  Court  has  no  power  or  jurisdiction  to 
inteifero  with  an  order  passed  by  the  Taxing  Officer 
settling  the  amount  of  Court-fee  payable  on  a  memo- 
randum of  appeal,  which  older  is  final  and  against 
which  thore  is  no  power  of  appeal,  review  01  revision 
Even  if  the  Court  is  of  opinion  that  the-  Court-fee 
levied  is  m  excess  of  that  payable  under  the  law,  it 
has  no  power  to  order  a  xefund  of  the  excess  amount 
levied 

Application  for  refund  of  excess  Court- 
fees  paid  on  the  memorandum  of  appeal  in 
Appeal  No.  206  of  1920. 

Messrs.  S.  M.  Mullick  and  L.  K.  Jha,  for 
the  Petitioners. 

Mr.  Sultan  Ahmed,  Government  Advocate, 
for  the  Opposite  Party. 

JUDGMENT.— This  is  a  petition  for 
the  iisue  of  a  certificate  by  the  Court 
for  the  refund  of  Rs.  2,427-8,  paid  as 
Court-fee  on  a  memorandum  of  appeal  filed 
before  this  Court. 

The  petitioners  filed  a  suit  on  the  24th 
July  1^18  paying  a  Court-fee  of  Rs.  572-8. 
They  lost  the  case  in  the  Trial  Court  and 
appealed  to  this  Court,  paying  again  the 
same  Court-fee  as  had  been  paid  on  the 
plaint.  The  matter  was  reported  by  the 
Stamp  Reporter  to  the  Taxing  Officer  and 
the  Taxing  Officer  decided  that  the  Court- 
fee  due  on  the  memorandum  of  appeal  was 


Rs  3,000  and  the  petitioners  accordingly  paid 
the  deficit. 

When  the  appeal  came  before  a  Bench 
of  this  Court  the  matter  of  the  Court-fee 
payable  on  the  plaint  was  considered  and 
it  was  decided  that  the  Court- fee  of 
Rs.  172-8  was  sufficient. 

It  is  now  claimed  that  by  reason  of  the 
decision  of  a  Bench  of  the  Court  the  peti- 
tioners are  entitled  to  a  refund  of 
Rs  2,427-8. 

It  has  been  settled  by  this  Court  in  a 
series  of  decisions,  namely,  -Ram  Sekhar 
Prasad  Singh  v.  Sheonandan  Dubey  (1)  and 
Shenpujan  Rai  v.  Kesho  Prasad  Singh  (2)  as 
well  as  in  the  case  of.  Ram  Sumran  Prasad  v. 
Gobind  Das  (3)  that  in  a  case  like  this,  this 
Court  has  no  power  or  jurisdiction  to  inter- 
fere with  the  order  passed  by  the  Taxing 
Officer  which  is  final  and  against  which 
theie  is  no  power  of  appeal,  review  or  revi- 
sion. These  cases  conclude  the  matter 
and  prevent  us  from  interfering  or  in  any 
way  holding  that  the  decision  of  the  Tax- 
ing Officer  was  incorrect,  and  his  decision 
must  stand.  We  have,  therefore,  no  power 
to  order  a  refund  of  the  Rs.  2,427-8. 

The  petitioners  are  entitled  to  some  sym- 
pathy owing  to  the  difference  in  the  deci- 
sion between  the  two  authorities  and  the 
best  that  they  can  do  is  to  move  the  Board 
of  Revenue  to  grant  a  refund  or  some 
alleviation  in  the  matter. 

The  application  is  rejected. 

z,  K.  Application  rejected. 

(1)  68  Ind  Gas  315,  2  Pat   198,   (1922)  Pat    337,  4 
P  L  T  71,  1  Pat  L  R.  25,  (1923)  A  1   K.  Pat    137 

(2)  76  Ind    Cas  347,  2  Pat  910  at  p.   924,   5  P   L, 
T  315,   (1924)  A  1.  R  (Pat)   310. 

(3)  63  Ind    Cas    700,  (1U22)  Pat.  291,  4   U,  P.  L  R, 
(Pat;  75,  3  P.  L  T.  701,  (1922;  A.  L  R.  (Pat.)  615,   1 
Pat  L  K.  1;  2  Pat.  125 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  No.  1356  OF  1919. 

September],  1925. 
Present'— Mr  Justice  Devadoss  and 

Mr.  Justice  Waller. 

ALELLA  KE8AVARAMAYYA  AND 

OTHEKS — PLAINTIFFS— APPELLANTS 

versus 

VISAMSETTI  VENKATANARA- 
S1MHA  AND  OTHERS— DEPENDANTS- 
RESPONDENTS 

Limitation  Act  (IX  of  1908),  s.  19— Pro-note,  invalidt 
whether  can  be  used  as  acknowledgment. 


I.  O.  1926]  ALBLLA  KB8AVARAliAYrA  V.  VlSAMSETTI  VENKA'l'ANAltASIMHA. 


62? 


When  a  peison  borrows  a  certain  sum  of  money  and 
execute*  a  piorm3s>iy-note  ho  executes  it  foj  the  t  0:1- 
sidoiation  icceived  by  him  and  when  it  is  oxnc-utrd  in 
respect  of  a  conaideiation  ah  e.idy  passed  it  is  au 
acknowledgment  of  tho  liability  to  pay  the  amount 
mentioned  in  the  note  [p  627,  col  2  ] 

Though  a  piomissoiy-note  made  pavable  to  bo«uci 
cannot  be  enforced  as  being  invalid,  it  can  neveithe- 
less  be  used  as  evidence  of  an  acknowledgment  of 
liability  undei  s  10  of  the  Limitation  Act  bo  as  to 
save  the  bar  of  limitation  [ibid  \ 

Nachimuthu  Chettij  v  Andiappa  Pillai,  42  Ind  Oas 
700,  6  L  W  630,  (1917)  M  W  N  778  and  Natarajuhi 
N  dicker  v  Subiamanian  Chettyat,  69  Ind  Gas  931), 
45  M  778,  (1922)  M  W  N  450,  (1922)  A  1  K  (M  ) 
181,  16  L.  W  705,  43  M  L  J  693,  followed 

Second  appeal  against  a  decree  of  the 
District  Court,  Kistna  at  Masulipatam,  in 
A  8.  No.  122  of  1918,  preferred  against  a 
decree  cf  the  Court  of  the  Subordinate 
Judge,  Bezwada,  in  O  8  No  83  of  1916 

Mr.  K.  Krishnamachanar,  for  the  Appel- 
lants 

Mr.  K,  Venkataswami  Naidu,  for  the  Re- 
spondents 

JUDGMENT.— The  only  question  in 
this  second  appeal  is  whether  the  suit  is 
barred  by  limitation.  The  plaintiffs  are  the 
sons  of  Venkayya  Gam  and  sue  the  defend- 
ants who  are  the  members  of  the  Commit- 
tee called  Sri  KanmkaParameswari  Vissyam 
Chetty  Venkataratnam  Hindu  High  School 
Committee  for  a  certain  sum  alleged  to  be 
due  to  the  plaintiffs.  The  Subordinate 
Judge  gave  a  decree  in  favoui  of  the  plaint- 
iffs. On  appeal  the  District  Judge  at 
Masulipatam  dismissed  the  suit  on  the 
ground  that  it  was  barred  by  limitation 

The  defendants  who  aie  the  members  of 
the  Sri  Kannika  Parameswari  Visyam 
Chetty  Venkataratnam  Hindu  High  School 
Committee,  took  over  the  management  of 
the  Hindu  High  School  at  Bezwada  with 
all  its  assets  and  liabilities  from  another 
Committee  called  Sri  Kannika  Parames- 
wari Hindu  High  School  Committee  in 
November  1915.  Both  the  Committees 
were  registered  under  the  Registration  of 
Societies  Act,  1860  Venkayya  advanced 
considerable  sums  of  money  for  the  upkeep 
of  the  school  and  for  certain  buildings 
connected  with  the  school  and  the  com- 
mittee of  the  school  authorised  two  of  its 
members  to  execute  a  promissory-note  in 
his  favour  for  the  amount  due.  Exhibit  E 
was  executed  on  18th  November  1913  The 
suit  was  filed  on  14th  November  1916.  The 
promissory  note  was  found  to  be  invalid  as 
it  was  made  payable  to  bearer.  The  plaint- 
iffs rely  upon  8.  19  of  the  Limitation  Act 
and  wish  to  treat  Ex,  E  as  an  acknowledg- 


ment in  writing  and  signed  by  the  agent 
of  the  debtors  duly  authorised  in  their 
behalf  The  contention  of  Mr  Varada- 
chanar  for  the  respondents  is  that  the 
executants  of  Kx  E  were  not  authorised 
to  make  an  acknowledgment  under  s.  19  of 
the  Limitation  Act  Exhibit  D-3  which 
is  dated  17th  November  1917,  he  contends 
is  not  an  acknowledgment,  for  it  only 
authonses  two  members  of  the  Committee 
to  execute  a  promissory-note.  I)-3  is  the 
resolution  of  the  Committee  authorising 
the  President  and  the  Secretary  and  a 
member  of  the  Committee  (Gopal  Rao)  to 
execute  a  promissory-note  for  the  sum 
of  Us  3,500  to  Venkayya  Pantulu. 
I)  3  is  not  an  acknowledgment  of  liabili- 
ty In  pursuance  of  the  authority  Ex.  E 
was  executed  on  18th  November  1913 
Exhibit  E,  therefore,  is  an  acknowledg- 
ment of  liability  of  the  Committee  to  the 
extent  of  Rs  3,500  to  Venkayya  It  is 
not  necessary  that  in  the  promissory-note 
itself  the  fact  that  it  is  an  acknowledgment 
should  be  recited,  the  execution  of  the 
note  itself  is  in  acknowledgment  of  the 
liability.  When  a  person  borrows  a  cer- 
tain sum  of  money  and  executes  a  promis- 
sory-note he  executes  it  for  the  consider- 
ation leceived  by  him  and  when  it  is  ex- 
ecuted in  respect  of  a  consideration  already 
passed  it  is  an  acknowledgment  of  the 
liability  to  pay  the  amount  mentioned  in 
the  note  It  was  held  in  Nachimuthu 
Chetty  v  Andiippa  Filial  (1)  that  though 
a  promissory  note  cannot  be  enforced  as 
offending  against  s  26  of  the  Paper  Cur- 
rency Act,  it  can  nevertheless  be  used  as 
evidence  of  an  acknowledgment  of  liability. 
This  case  was  followed  in  Natarajulu 
Naicker  v.  Subrama?iia?n  Chettyar  (2). 
Exhibit  E  mentions  the  proceedings  of 
the  Committee  and  recites  the  fact  that  it 
is  executed  on  behalf  of  the  Committee. 
Exhibit  E,  therefore,  is  an  acknowledgment 
of  liability  within  the  meaning  of  s.  19  of 
the  Limitation  Act  and  the  suit  filed  with- 
in 3  years  of  it  is  not  barred  by  limita- 
tion 

The  appeal  is  allowed  and  the  lower 
Court  will  try  the  other  issues  in  the  case. 
The  appellants  will  be  entitled  to  the  costs 
of  the  second  appeal. 

v.  N.  v.  Appeal  allowed, 

z.  K. 

(1)42  706,  6L  W.  630,  (1917)  M   W   N  778. 
2  60  Ind  Caa    939,  45    M  778,  (1922)  M  W.  N,  450, 
(1922)  A.  I,  R,  (M,)  181, 16  L,  W,  705,  43  M,  L,  J.  &W< 


628 


VlflHVANATHBHAT  ANNABHAT  V.  MALLAPPA  NINGAPPA. 


[92  I.  0. 


BOMBAY  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  220  OF  1924. 

June  19,  1925. 

Present:— Sir  Norman  Macleod,  KT., 

Chief  Justice,  and  Mr.  Justice  Coyaiee. 

V18HVANATHBHAT  ANNABHAT 

PUJARI— PLAINTIFF— APPELLANT 

versus 

MALLAPPA  NINGAPPA  AND  ANOTHER— 
DEFENDANTS— RESPONDENTS. 

Registration  Act  (XVI  of  1908),  s.  28—Place  of 
registration— Portion  of  property  included  in  deed 
within  jurisdiction  of  Sub-Registrar — Intention  to  re- 
convey  such  portion,  effect  of —Registration,  validity 
of — Dekkhan  Agriculturists'  Relief  Act  (XVII  of 
LS70),  s  3 — Suit  to  set  aside  sale-  -Relief,  whether  can 
be  granted. 

Where  a  portion  of  the  property  eompiised  in  a 
deed  of  transfer  is  within  the  jurisdiction  of  a  sub- 
Registrar,  lie  has  jurisdiction  to  register  the  deed,  nnd 
evidence  cannot  subsequently  be  led  to  show  that 
the  intention  of  the  parties  was  to  ic-oonvey  such 
portion  to  the  tiansferor  after  legibtration  of  the 
deed  had  been  effected.  Even  on  proof  of  such  inten- 
tion the  registration  of  the  deed  would  not  be  rendeied 
invalid  [p  G28,  col.  2,  p  629,  col  1 1 

The  Dekkhan  Agriculturists'  Kelief  Act  gives  extra- 
ordinary reliefs  in  certain  cases  which  are  specified  in 
the  Act  These  include  a  suit  for  redemption  but  not 
a  suit  to  set  aside  a  sale-deed  In  a  suit  of  the  latter 
kind,  therefore,  the  plaintiff  is  not  entitled  to  take 
ndvantage  of  the  provisions  of  the  Act  [p  629,  col  2  ] 

Second  appeal  from  the  decision  of  the 
Assistant  Judge  at  Dharwar,  in  Appeal 
No.  71  of  1921,  reversing  that  of  the  Sub- 
ordinate Judge,  at  Hubli,  in  Suit  No,  117 
of  1919. 

Mr.  S.  R.  Parulekar,  for  the  Appellant. 

Mr.  Nilkant  Atmaram,  for  the  Respond- 
ents. 

JUDGMENT.— This  is  an  appeal  from 
the  decision  of  the  Assistant  Judge  of 
Dharwar,  who,  reversing  the  decree  of  the 
Trial  Court,  dismissed  the  plaintiff's  suit 
with  costs  throughout.  The  suit  was  one 
to  recover  possession  of  the  plaint  land  with 
costs  and  future  inesne  profits,  on  the 
ground  that  the  plaint  land  belonged  to  the 
plaintiff.  His  mother  during  his  minority 
purporting  to  act  as  his  guaidian  had  sold 
the  land  to  one  Ningappa,  the  deceased 
father  of  defendants,  on  August  2,  1905. 
The  sale  was  sought  to  be  set  aside  on  three 
grounds:  (1)  that  the  sale-deed  was  a  fraud 
on  registration  ;  (2)  that  the  sale  was  not 
for  the  benefit  of  the  plaintiff;  and  (3)  that 
the  sale  was  of  the  nature  of  a  mortgage  and 
the  amount  of  consideration  had  already 
been  paid  off  from  the  profits  of  the  land. 

The  fraud  on  registration  set  up  by  the 
plaintiff  is  based  on  the  fact  that  only  a 
portiou  of  the  land  in  the  sale-deed  was 


within  the  jurisdiction  of  the  Sub  Registrar 
of  Navalgund,  who  registered  the  sale- deed, 
and  it  is  alleged  that  that  land  was  inserted 
in  the  deed  merely  for  the  purpose  of  giving 
juiisdiction  to  the  Sub- Registrar,  the  in- 
tention of  the  [parties  being  that  it  should 
be  re-conveyed  to  the  vendor.  The  Judge 
in  the  Trial  Court  said  : 

"The  circumstances  in  which  the  two 
sale-deeds  seem  to  have  been  passed  lend 
support  to  the  allegation  that  the  insertion 
of  the  plot  of  ground  in  the  sale-deed  now 
in  suit  was  merely  with  a  view  to  give  juris- 
diction to  the  Sub-Registrar  of  Navalgund 
to  icgister  the  deed.  Besides  Chidambar- 
bhat,  who  is  examined  by  the  defendants, 
swears  that  the  object  of  the  insertion  of  the 
plot  in  the  deed  was  merely  to  give  jurisdic- 
tion to  the  Sub- Registrar  of  Navalgund,  and 
that  the  parties  to  the  sale-deed  in  suit  had 
no  intention  to  alienate  the  said  plot  by  the 
deed,  and  that  the  sale  to  him  by  Ningappa 
of  the  plot  was  benami  for  Bhagirthibai." 

Exhibit  84  is  the  deed  which  transferred 
the  plot  to  Chidambarbhat,  the  benamidar 
for  plaintiff's  mother 

The  appellant  relies  for  his  argument 
that  (here  was  a  fraud  on  registration  on  two 
cases  tlarendra  Lai  Roy  Chowdhri  v.Hari- 
dasi  Debi  (I)  in  which  it  was  held  that  none 
of  the  properties  appearing  in  the  docu- 
ment to  be  registered  was  within  the 
jurisdiction  of  tho  Registrar,  and,  there- 
fore, registration  was  invalid  ;  and  Bis- 
wanath  Prasad  v.  Chandra  Narayan 
Chowdhuri  (2),  in  which  it  was  proved  that 
the  transferor  had  no  title  to  the  property 
mentioned  in  the  transfer-deed  which  would 
bring  it  within  the  jurisdiction  of  the  Regis- 
trar. Neither  of  those  cases  is  applicable  to  the 
facts  in  the  present  case.  But  the  appellant 
wishes  us  to  extend  those  decisions  to  the 
facts  before  us.  We  are  concerned  at  present 
with  the  registration  of  the  sale-deed.  The 
Registrar  had  jurisdiction  to  register  that 
document,  because  a  portion  of  the  property 
mentioned  in  the  deed  \\aswithin  his  juris- 
diction. Clearly,  if  no  property  belonging 
to  the  transferor  appealing  in  the  document 
to  be  registered  is  within  the  jurisdiction  of 
the  Registrar,  registration  by  such  Regis- 
trar of  that  document  would  be  invalid.  But 
we  are  not  prepared  to  go  further  and  say 

(1)  2;i  Ind.  Cas  637,  41  C.  972,  27  M.  L.  J.  80j 
(1914)  M.  W.  N  462,  16  M  L.  T.  6,  18  0.  W.  N.  817; 
19  C.  L,  J.  484;  16  Bom.  L  K,  400;  12  A.  L.  J.  774,  1 
L,  \V.  1050,  41  L  A.  110  (P.  C  ). 

(i)  63  Ind.  Cae.  770,  48  1,  A.  127;  48  C.  509  (P.  0,). 


BHATC7  RAM  MODI  V,  FOQAL  RAM. 


[92  1  0,    1923J 

that  evidence  can  b^  led  with  regard  to  the 
intention  of  the  parties  at  the  time  the  princi- 
pal document  was  registered,  to  deal  again 
with  the  portion  of  the  property  which  was 
within  the  jurisdiction  of  the  Registrar  and 
which  rendered  its  registration  valid. 

The  next  question  is  whether  the  sale 
was  for  the  benefit  of  the  plaintiff.  It  has 
been  found  that  the  plaintiff's  mother  sold 
the  property  in  order  to  pay  off  a  mortgage 
and,  from  the  facts  found,  it  was  certainly 
desirable  in  the  interests  of  the  plaintiff 
that  the  mortgage  should  be  paid  off,  as 
the  profits  of  the  land  mortgaged  were 
more  than  the  interest  on  the  mortgage, 
provided  they  could  be  realized 

The  appellant,  however,  objects  to  the 
payment  made  by  his  mother  as  being 
excessive.  There  is  no  evidence  that  it  was 
excessive,  as  the  appellant  took  no  steps  to 
prove  that  on  a  proper  mortgage  account 
being  taken  the  amount  paid  by  the 
plaintiff's  mother  was  too  much.  Evi- 
dence was  called  to  show  that  certain 
tenants  had  paid  full  rent  to  the  mortgagee 
between  1902  and  1905.  As  the  Judge  re- 
marks, they  could  not  produce  the  receipts 
of  such  payment.  However,  that  may  be, 
the  onus  would  certainly  lie  on  the  appel- 
lant, if  he  seeks  to  dispute  his  mother's 
action  to  prove  that  she  had  over-paid  the 
mortgagee.  But  even  then  that  would  not 
affect  the  position  of  a  buna  fide  purchaser 
for  value  It  would  be  sufficient  for  him  to 
inquire  whether  there  was,  as  a  matter  of 
fact  a  mortgage  to  be  paid  off.  He  would 
not  be  bound  to  follow  the  purchase  money, 
and  ascertain  that  it  v\aa  properly  disposed 
of  by  the  plaintiffs  guardian 

The  last  point  urged  by  the  plaintiff  was 
that  the  sale  by  his  mother  was  of  the  nature 
of  a  mortgage  That  question  was  ruled  out 
by  the  TrialJudge  on  the  ground  that  the 
Dekkhan  Agriculturists'  Relief  Act  did  not 
apply  at  the  date  of  the  sale-deed,  relying 
on  the  decision  in  Chanbasayya  v  Chennap- 
gavda  (3).  Since  the  decision  of  the  Appellate 
Court  in  this  case,  the  decision  in  Chanbas- 
agya  y.  Ghennapgattda  (3)  was  overruled  by 
-a  decision  of  the  Full  Bench.  Therefore, 
there  was  no  objection  to  the  plaintiff's  con- 
tention that  he  should  be  allowed  to  prove 
that  the  sale  was  in  reality  a  mortgage 
transaction  bstween  his  mother  and  the 
purchaser  if  the  suit  was  one  in  which  the 
question  could  be  raised.  But  this  is  not 

(3)  51  lud,  Oaa.  693,  44  B,  217,  22  Bom,  L,  R,  44. 


639 


a  suit  for  redemption.  This  is  a  suit  to  set 
aside  a  sale-deed.  Therefore,  this  is  not 
a  suit  falling  within  the  class  of  suits 
specified  in  the  Dekkhan  Agriculturists1 
Relief  Act,  and  the  plaintiff  is  not  entitled 
to  takft  advantage  of  its  provisions  As 
pointed  out  in  Bachi  v.  BickhhandJiomal  (4) 
the  Dokkhan  Agriculturists'  Relief  Act 
givea  extraordinary  reliefs  in  certain  caaes 
which  are  specified  in  the  Act.  These 
include  a  suit  for  redemption.  As  this  is 
not  a  suit  for  redemption,  any  relief  granted 
by  the  Act  is  not  open  to  the  plaintiff  The 
appeal,  therefore,  fails  and  must  be  dis- 
missed with  costs, 
z  K  Appeal  dismissed. 

(4)  9  lad  Cas  393,  13  Bom  L  R  56,  13  G  L  J, 
69,  8  A  L  J  105,  9  M  L  T  199,  15  0  W  N  297. 
21  M  L  J  89,  (1911)  2  M  W  N  59  (P.  C) 


PATNA  HIGH  COURT. 

APPELL  FROM  ORIGINAL  DBCRBB  No.  98 

OP  1922. 

November  3,  1925. 
Present: — Mr.  Justice  Das  and   JI  TT8; 

Mr  Justice  Adami. 

BHATU  RAM  MODI  AND  ANOTHER— 

DEFENDANTS  —  APPELLANTS 

versus 
FOGAL  RAM — PLAINTIFF— RESPONDENT. 

Mesne  profits,  decree  for — Ascertainment  of  mesne 
profits,  application  for,  nature  of —Dismissal  of  appli- 
cation, legality  of — Limitation 

An  application  for  the  ascertainment  of  meane  profits 
18  an  application  in  tho  suit  itself  and  the  law  of 
limitation  has  no  application  to  it,  so  long  as  the  suit 
is  a  pending  suit  [p  631,  col.  1  ] 

Where  a  claim  for  mesne  profits  has  been  decreed, 
an  application  for  ascertainment  of  mesne  profits 
cannot  be  dismissed,  inasmuch  as  the  dismissal  of 
the  application  would  amount  to  a  dismissal  of  the 
suit  which  has  already  been  decreed  [ibid  ] 

Appeal  against  a  decision  of  the  Sub- 
ordinate Judge,  Hazaribagh,  dated  the 
21st  January  1922. 

Messrs.  Sultan  Ahmed  and  S.  N.  Dutt,  for 
the  Appellants. 

Messrs  S.  M.  Midhch  and  B  C.  Det  for  the 
Respondent. 

JUDGMENT. 

Das,  J.— On  the  25th  August  1915  the 
Ramgarh  Raj  obtained  a  decree  for  posses- 
sion of  certain  properties,  for  mesne  profits 
up  to  the  date  of  the  decree  uat  the  rate 
of  the  rent  fixed  in  the  lease  with  interest 
thereon  at  the  rate  specified  in  the  said 
lease"  and  for  subsequent  profits  "at  the 


630 


BRATD  BAM  MODI  V.  FOOALRAM. 


full  rate  recoverable  under  the  law."  The 
Ramgarh  Raj  obtained  possession  of  the 
properties  on  the  22nd  February  1916  audit, 
therefore,  became  entitled  to  mesne  profits 
at  the  rate  of  rent  up  to  the  25th  August 
1915  and  at  the  full  rate  from  the  25th 
August  1915  to  the  22nd  February  191p. 

On  the   ?3rd  December  1915  the  Rajjpre- 
eented  an  application  for  execution  claim- 
ing Rs.  2,860  14-U  mesne  profits  dfor  eleven 
years  up   to  the   date    of  the  decree    and 
Rs.  1,069-11-9  as  mesne  profits  from     }the 
date  of  the  decree  up  the  23rd  December, 
1815.    The   application  was   presented  as  a 
simple  application    for   execution    of  the 
decree,  the  Raj  and  its  legal  advisers  hav- 
ing overlooked  the  fact  that  under  the  C. 
P.  0,  of  1908  ascertainment  of  mesne  profits 
was  a  proceeding  in  the  suit  itself  Certain 
proceedings  were  taken    and  certain  pro- 
perties of  the  judgment-debtors  were  sold 
in  this  execution,    but  an  objection  having 
been  taken  the  sale  was  set  aside    on  the 
8th  December   1917   and  the  decree-holder 
was  directed  to  file  fresh    execution.    On 
the  13th    August  1919    another  execution 
case  was  started  by  the  Raj.     On  the  llth 
November  1919  this  was    rejected  as    in- 
fructuous,    because    certain    substitutions 
had  not  been  effected.    On    the  7th  March 
1920  the  third  execution  case  was  started. 
The  judgment-debtors  now  for  the  first  time 
raised    the    objection    that  mesne    profits 
could  not  be  ascertained  in  execution   and 
that     there    was  no     application    for    as- 
certainment of  mesne  profits  and  that   the 
application  for  execution  could  not  be  con- 
verted into    an  application  for  ascertain- 
ment of  mesne  profits.     On  the   17th  April 
1920  the  Court  dismissed  this    application 
as  barred  by  limitation.  The  Court  also  held 
that  the  proceeding  could  not  continue,  as 
mesne    profits  had    not  been    ascertained 
which  must  be  ascertained  in  a  proceeding 
in  the  suit  itself.    The  decision  of  the  Court, 
on    the    question  of  limitation,  was    sub- 
sequently set  aside  by  that  Court  on  review 
and   that  decision  was  upheld  by  this  Court 
Having  regard  to  this  decision  Fogal  Ram 
who  meanwhile  had  purchased  the  decree 
from  the  Raj  instituted  the   present  pro- 
ceedings on  the  19th  April  1920  for  the  as- 
certainment of  mesne  profits.    His  applica- 
tion has  succeeded  and  the  jugment-debtors 
appeal  to  this  Court  and  they  contend  that 
having  regard  to  the  previous  orders,  name- 
ly, those  passed  on  the  8th  December  1917, 
llth, November    1919  and  the   17th  April 


[92  I.  0.  1926] 

1920  the  present  application  was  not  main- 
tainable. The  matter  was  heard  before  my 
learned  brother  and  myself  on  the  5th  May 
lc/25  when  we  delivered  judgment  agree- 
Mg  with  the  contention  of  the  appellants. 
Mr.  B.  C.  De  thereafter  appeared  before  us 
before  we  had  signed  the  judgment  and  he 
asked  for  permission  to  argue  the  matter 
again  before  us.  We  acceded  to  the  request 
arid  we  have  heard  the  parties  fully  to-day. 
In  my  opinion  having  regard  to  the  argu- 
ments which  have  been  advanced  before  us 
to-day,  we  must  affirm  the  decision  of  the 
lower  Court  and  dismiss  this  appeal 

The  short  point  which  falls    to    be  con- 
sidered is  whether  there  is  any  power  in  a 
Court  to  dismiss  an  application  for  ascer- 
tainment of  mesne  profits.    It  is  contended 
before  us  by  Mr.  Susil    Madhab    Mulhck 
that   a  decree  having  been  passed  for  as- 
certainment of  mesne  profits  it    was    not 
competent    to    the  Court    at  any  stage    to 
dismiss  those  proceedings,  it  being  beyond 
the  power  of  a   Court  to  dismiss  a     claim 
which  had    already    been   decreed,  and  it 
was  contended  that  if  the  previous    appli- 
cations be  regarded  as  applications  for  the 
ascertainment  of    mesne  profits,  then    the 
dismissal  of  those  applications  were  from 
one  point  of  view  illegal  and  thatin  any  case 
they  could  not  prevent    the  decree-holder 
from  inviting  the  Court  to  carry  into  effect 
the  decree    of  the  High  Court  dated    the 
25th  August   1915     This  view  is  supported 
by  the  decision  of  the  Judicial  Committee 
in    Lachmi    Narayan     Marwary     v.     Bal- 
mukund  Marwary   (1).    That  decision  was 
pronounced  in  suit  for    partition.    A  pre- 
liminary decree  for  partition  was  made  and 
all  that  remained  to  be  done  was  to  carry 
the  partition  into  effect.    The  Subordinate 
Judge    accordingly     fixed    a      date      tor 
hearing  the  parties  as   to  how  the  parti- 
tion was  to  be  effected    and    gave  them 
notice  ,  but  the  plaintiff  did  not  appear  on 
the  date   fixed  and  thereupon  the  Subordi- 
nate   Judge  dismissed  the  suit  for  want  of 
further    proceedings.    With    reference    to 
what  was  done  by  the  Subordinate   Judge 
their  Lordships     said  as  follows  :—  "  After 
a  decree  has  once  been  made  in  a  suit,  the 
suit  cannot  be  dismissed  unless  the  decree 


(1)  81  Ind  Cas  747,  5  P.  L  T  e«3;  (1024)  A.I  R. 
P  O  )  198,  35  M  L  T  143,  47  M,  L  J  441,  20  L  W 


( 
4 


,  ,     , 

491,  (1924)  M  W  N  707;  10  O  &  A  L  R  1033,  M 
Bom,  L,  K  1129,  22  A,  L.  J,  990,  40  0  L  J.  439  al 
I  A  321,  L  R  5  A  (PC)  171,  29  0,  W.  N.  391;  1 


, 
0.  W.  N.  629,  4  Pat.  61  (P.  0.). 


[92  I.  0.  1926] 


ARUNflHBILAM  CHETTUR  V.  U  PO  LT7. 


631 


ia  reversed  on  appeal.  The  parties  have, 
on  the  making  of  the  decree,  acquired 
rights  or  incurred  liabilities  which  are 
fixed,  unless  or  until  the  decree  is  varied 
or  set  aside*  After  a  decree  any  party  can 
apply  to  have  it  enforced,"  and  then  their 
Lordships  said  this* — "If,  for  instance,  the 
Subordinate  Judge  had  made  an  order 
adjourning  the  proceedings  sine  die,  with 
liberty  to  the  plaintiff  to  restore  the  suit 
to  the  list  on  payment  of  all  costs  and 
Court-fees  thrown  away,  it  would  have 
been  a  perfectly  proper  order.11 

Now  it  seema  to  me  that  this  case  de- 
cides the  present  controversy  between  the 
parties  The  decree  of  the  25th  August 
1915  in  terms  gave  a  decree  to  the  plaint- 
iff for  mesne  profits  There  was,  there- 
fore, a  valid  decree  which  was  operative 
and  which  the  Court  had  to  carry  into 
effect.  That  decree  was  not  set  aside  and 
it  seems  to  me  that  the  proceedings  for  the 
ascertainment  of  mesne  profits  could  not 
be  dismissed,  for  the  dismissal  of  those 
proceedings  would  operate  as  a  dismissal 
of  the  suit  which  had  already  been  decreed 
by  the  Calcutta  High  Court. 

The  question  only  arises  as  it  is  contend- 
ed before  us  that  although  in  form  the 
previous  applications  may  have  been  ap- 
plications for  execution  of  the  decree,  in 
substance  they  were  applications  for  as- 
certainment of  mesne  profits  I  hold  that 
if  they  were  applications  for  the  ascertain- 
ment of  niftsne  profits,  their  dismissal  was 
ultra  vires  and  that  it  was  open  to  the 
pliintiff  to  ask  the  Court  to  ascertain  the 
mesne  profits  It  is  well-established  that 
an  application  for  mesno  profits  is  an 
application  in  the  suit  itself  and  that  the 
law  of  limitation  has  no  application  to  it  so 
Ion  gas  the  suit  is  a  pending  suit. 

Mr.  Sultan  Ahmed  ingeniously  argued 
before  us  that  a  distinction  should  be 
drawn  between  a  suit  and  a  claim  which 
may  be  involved  in  the  suit  He  admits 
that  the  suit  having  been  decreed  it  was 
not  in  the  power  of  the  learned  Subordi- 
nate Judge  to  dismiss  the  suit  ,  but  he 
contended  before  us  that  the  claim  for 
mesne  profits  stood  on  a  different  footing. 
I  am  unable  to  agree  with  this  contention. 
The  only  part  of  the  suit  that  remained 
was  that  dealing  with  the  question  of 
mesne  profits  payable  to  the  plaintiff ;  and 
in  any  view  the  claim  for  mesne  profits 
had  in  distinct  terms  been  decreed  by  the 
Calcutta  High  Court  and  that  being  so,  that 


claim  could  not  be  dismissed  by  the  learned 
Subordinate  Judge. 

I  would  accordingly  dismiss  this  appeal. 
There  will  be  no  order  as  to  costs. 

It  was  brought  to  our  notice  that  the 
lease  does  not  provide  for  the  payment  of 
any  interest.  That  being  so,  the  plaint- 
iff will  be  only  entitled  to  mesne  profits 
at  the  rate  of  rent  fixed  in  the  lease  up  to 
the  date  of  the  decree 

Adamt,  J.  -I  agree. 

7,.  K.  Appeal  dismissed. 


RANGOON  HIGH  COURT. 

CIVIL  MISELLANEOUS  APPEAL  No.  112  OP  1924. 

March  30,  1925 
Present  * — Mr  Justice  Heald  and 

Mr.  Justice  Chari. 

L,  A.R.  ARUNCHELLAM  CHETTIAR— 
APPELLANT 

versus 
U  PO  LU— RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  0  XL,  r  ^ 
0  XLIII,r  1  (&)— Receiver —Older  determining  liabil- 
ity of  Receiver  on  accounts  and  directing  payment — 
Appeal,  whether  lies 

An  appeal  is  a  creature  of  Statute  and  unless  the 
right  of  appeal  is  specially  conferred  by  some  law, 
no  one  has  a  right  to  appeal  fp  632,  col  1 J 

The  operative  part  of  r  4  of  O  XL,  C  P  C  ,  is  the 
part  which  enables  the  Court  to  attach  and  sell  the 
Receiver's  property,  els  (a),  (6)  and  (c)  of  the  rule  give 
only  the  grounds  on  whieh  such  an  order  can  be 
made  Unless,  therefore,  an  order  is  made  under  the 
operative  part  of  the  rule,  no  appeal  would  he  under 
r  1  (*Jof  0  XLTII  of  the  Code  \ibid] 

An  order  determining  the  liability  of  the  Receiver 
and  directing  him  to  pay  a  certain  sum  of  money  into 
Court  is  not  open  to  appeal  either  at  the  instance  of 
the  Receiver  or  at  the  instance  of  any  other  party, 
[p  632,  col  2  ] 

Appeal  against  an  order  of  the  District 
Court,  Myaungmya,  in  C.  M  No  79  of  1916. 

Mr.  Ariklesaria,  for  the  Appellant. 

Mr  Oe/irae,  for  the  Respondent. 

JUDGMENT.— One  P  V.  D.  V.  Muthiah 
Chetty  filed  a  mortgage  suit  against  L.  A. 
R  Arunachellam  Chetty.  He  applied  for 
and  obtained  an  order  for  the  appointment 
of  a  Receiver  of  the  mortgaged  properties. 
II  Po  Lu,  a  Pleader,  was  appointed  Receiver. 
A  mortgage-decree  was  passed  by  the  Dis- 
trict Court,  but  that  decree  was  set  aside  in 
appeal  by  the  Chief  Court,  which  dismiss- 
ed plaintiff's  suit  The  mortgagor  applied 
for  and  obtained,  by  way  of  restitution,  de- 
livery of  eome  of  the  properties  but  be  could 


632 


AEUNOIBLLAM  OH1TTIAR  V.  U  PO  LIT. 


[92  I.  0.  1926] 


not,  naturally,  obtain  delivery  of  a  launch 
which  had  punk.  Another  launch  was  de- 
livered to  him  in  such  a  condition  that 
it  was  of  little  value.  On  the  16th  of  No- 
vember, 1922,  the  Receiver  was  asked  to 
file  a  full  report  He  took  time  to  file  his 
report  and  when  he  did  file  it,  his  report 
was  found  unsatisfactory.  On  the  15th  of 
December,  1922?,  he  was  asked  to  file  full  ac- 
counts. He  filed  his  accounts  on  the  5th  of 
January  1923,  and  after  many  adjournments, 
Mr.  Ghose,  on  behalf  of  the  mortgagor  on 
the  9th  of  June  1923,  filed  his  written  objec- 
tions to  the  Receiver's  accounts.  In  that 
statement  of  objections,  he  drew  attention 
to  various  items  in  respect  of  which  the 
Receiver  was  liable  to  him  and  also  chal- 
lenged his  accounts  He  ended  up  his 
statement  with  a  prayer  that  either  the 
Receiver  be  ordered  to  pay  all  losses  or 
sanction  be  granted  to  the  objector  to  sue 
the  Receiver  for  damages.  The  learned 
District  Judge  held  an  enquiry  and  on  the 
28th  April  1924,  he  passed  an  order  direct- 
ing the  Receiver  to  pay  within  a  month 
the  sum  of  Rs.  4,760. 

Against  this  order  the  mortgagor,  L  A. 
R.  Arunachallem  appeals.  The  Receiver  has 
also  filed  a  memorandum  of  objections. 
The  question  to  consider  is  whether 
such  an  appeal  lies.  An  appeal  is  a  crea- 
ture of  Statute  and  unless  specially  given 
by  some  law  no  one  has  a  right  to  appeal. 
Order  XLIII,  r.  1,  deals  with  appeals  from 
orders  and  cl.  (s)  makes  orders  under  r.  1 
or  r.  4  of  O.  XL  appealable.  Thus  all 
orders  passed  in  respect  of  the  appoint- 
ment of  a  Receiver  would  be  appealable 
and  also  orders  under  r.  4  of  0.  XL,  Rule  4 
of  O,  XL,  provides  that  when  a  Receiver 
fails  to  submit  his  accounts  or  fails  to 
pay  an  amount  ordered  or  causes  loss  to 
the  property,  the  Court  may  direct  his 
property  to  be  attached  and  sold.  No  such 
order  for  the  attachment  of  the  Receiver's 
property  has  been  made  in  this  case.  Mr. 
Anklesaria  for  the  appellant  argues  that 
on  default  being  made  in  any  of  the 
acts  enumerated  as  (a),  (6)  and  (c)  of  r.  4 
of  O.  XL  there  is  a  default  within  the 
meaning  of  that  rule  and  an  appeal  lies. 
This  argument  is  obviously  uusound.  The 
operative  part  of  r.  4  is  the  part  which 
enables  the  Court  to  attach  and  sell  the 
Receiver's  property  and  els.  (a),  (6)  and  (c) 
give  only  the  ground  on  which  such  an 
order  can  be  made.  It  is,  therefore,  idle 
to  argue  that  an  appeal  would  lie  when 


part 


no  order  is  made  under  the  operative 
of  the  section. 

It  is  not  necessary  to  deal  with  the 
authorities  on  this  point  at  length  and  we 
will  draw  attention  only  to  the  recent 
cases.  In  Ganesh  Lai  v.  Kumar  Satya 
Narayan  Singh  (1),  a  Receiver  was  found 
liable  for  a  certain  amount  and  he  filed  an 
appeal  against  the  order  containing  that 
finding.  The  learned  Judges  held  that  no 
appeal  lay  since  the  finding  was  not  ac- 
companied by  an  order  under  r.  4  of 
O.  XL.  This,  it  is  true,  was  an  appeal  by 
the  Receiver,  but  in  a  later  case  of  the 
same  High  Court,  Samhautta  v.  Bhagwati 
Sinc/h  (2),  the  appeal  was  instituted  by  the 
party  seeking  to  hold  the  Receiver  liable. 
The  Court  of  the  District  Munsif  had  held 
that  the  Receiver  was  liable  only  to  account 
for  the  year  1916  but  in  appeal  the  Sub- 
ordinate Court  enlarged  the  onier  by 
directing  that  the  Receiver  shoul£efurni8h 
accounts  for  1917  and  1918  also.  The  Patna 
High  Court  in  revision  set  aside  the  order 
of  the  lower  Appellate  Court  on  the  ground 
that  no  appeal  lay  to  it.  In  a  recent  case, 
Palaniappa  Chetty  v.  Palaniappa  Chetty  (3) 
a  Bench  of  the  Madras  High  Court  took 
the  same  view  as  the  Patna  High  Court 
following  the  two  cases  above  cited,  In 
the  Madras  case,  also,  the  Receiver  was 
ordered  to  pay  a  certain  sum  of  money  into 
Court  and  he  appealed  against  that  order. 
The  appeal  was  an  appeal  by  the  Receiver 
but  the  reasoning  in  the  case  shows  that 
no  appeal  would  lie  even  when  the  party 
challenging  the  Receiver's  account  is  the 
appellant.  In  Shrimwax  Kuppuswami  Mu- 
daliar  v.  Waz  (4)  the  facts  of  the  case  are 
different.  There  are  some  passages  in  it 
which  may  be  used  as  supporting  the 
position  that  an  appeal  would  lie  when 
relief  is  refused  against  the  Receiver,  but 
these  remarks  are  obiter  and  were  merely 
what  the  learned  Judges  thought  to  be 
an  application  of  the  principle  in  the  de- 
cision of  Zipru  v.  Hari  (5)  which  deals, 
however,  with  an  entirely  different  point. 

It  is  not  for  us  to  speculate  as  to  the 
reason  why  the  Legislature  has  thought 
fit  not  to  give  a  right  of  appeal  in  such 
cases.  Possibly  it  is  because  the  aggrieved 

Cl)  54  Ind  Gas    207,  4  P.  L  J.  636,  (1920)  Pat   35. 
(2;  55  Ind  Gas  15;  5  P   L  J.  97,  (1920)  Pat.  121. 

(3)  65  Ind  Cas.  403;  (1921)  M.  W.  N  806;  (1922)  A. 
IK   (M )  234 

(4)  59  Ind.  Cas,  421;  45  B.  99,  22  Bom.  L.  R.  1126. 

(5)  42  Ind.  Cas.  73;  42  B,  10;  19  Bom.  L,  R.  774. 


[92  I.  0.  1926J          RAM>ROTAP  CHAMRTA  1).  DURGA  PROSAD  OHAMRTA. 


633 


party  has  a  remedy  by  suit  after  obtaining 
the  leave  of  the  Court.  It  is  enough  for 
our  purpose  that  no  appeal  is,  as  a  matter 
of  fact,  given,  and  the  appeal  must,  therefore, 
fail  and  is  dismissed  with  costs,  five  gold 
mohurs.  As  the  substantial  appeal  has 
failed,  the  memorandum  of  objections  must 
also  fail  and  is  dismissed. 

z.  K.  Appeal  dismissed. 


PRIVY  COUNCIL. 

APPEAL  FROM  THE  CALCUTTA  HIGH  COURT 

October  20,  1925 
Present  .-—Lord  Blanesburgh,  Lord  Darling 

and  Sir  John  Edge 

RAM  PROTAP  CHAMRIA— PLAINTIFF- 
APPELLANT 

versus 

DURGA  PROSAD  CHAMRIA  AND  OTHERS 
— DEFENDANTS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  Sch  II,  paras. 

I,  2,   15 — Reference  to    arbiti ation    in  pending  suit — 
Matters  outside  scope  of  suit,  whether  can  be  >e f erred   - 
Award   in  excess    of    matters    re/err ed,  validity  of — 
Conclusions  influenced  by  extraneous  matters,  effect  or 

In  a  pending  suit  a  Com  t  has  no  power  to  refer  to 
arbitration  any  questions  between  the  parties  to  the 
suit  other  than  those  in  question  in  the  suit,  or  any 
questions  in  which  any  one  not  a  paity  to  the  suit  is 
concerned,  [p  635,  col  2  } 

It  is  incumbent  upon  aibitratois  acting  under  an 
order  of  reference  made  under  paras  1  and  2  of  Sch 

II,  0  P  0  ,   to  comply  strictly    with  its  terms     The 
Court  does  not  by  making  the  order  of  leference,  part 
with  its    duty    to   supeivise     the   pioceedmgs  of  the 
arbitrators  acting  undei  the  older  [p  636,  col  1  ] 

An  award  made  under  such  an  ordei  otherwise 
than  in  accordance  with  the  authority  conferred  upon 
the  arbitratois  by  the  order,  is  "otherwise  invalid" 
and  maybe  set  aside  by  the  Court  under  para  15  of 
Sch  II,  CPC  [ibnl] 

An  award  made  in  pursuance  of  an  order  of 
reference  made  m  a  pending  suit,  the  conclusions  of 
which  are  dictated  or  coloured  by  the  view  taken  by 
the  arbitrators  of  other  questions  between  the  parties 
or  some  of  them  to  which  the  suit  had  no  reference 
cannot  be  upheld  [p  636,  col  2,  p  637,  col  1  ] 

Appeal  from  an  ordei  of  the  Calcutta  High 
Court  (Mukerjee  and  Rankin,  JJ.),  dated  the 
19th  July  1923,  and  printed  as  83  Ind.  Cas. 
300,  affirming  an  order  of  the  same  Court, 
'Original  CIVA!  Jurisdiction  (^Greaves,  J  ), 
dated  the  24th  July  1922 

Messrs,  L.  De  Gruyther,  K.  C ,  and  W. 
Wallach,  for  the  Appellant. 

Mr.  W,  H.  Upjohn,  K.  C,  Sir  George 
Lowndes,  K.  C.,  and  Mr.  K.  V.  L.  Narasim- 
hamt  for  the  Respondents. 

JUDGMENT. 
Lord  Blanestourgh.— This  appeal  is 


from  an  order  of  the  High  Court  of  Judica- 
ture at  Fort  William  in  Bengal,  exercising 
appellate  jurisdiction  and  in  effect  affirm- 
ing an  order  made  by  Mr  Justice  Greaves, 
sitting  in  the  exercise  of  the  ordinary 
original  civil  jurisdiction  of  the  Court 
Both  were  orders  propounded  in  a  suit  for 
the  dissolution  of  a  partnership,  and  their 
result  was  to  set  aside  an  award  of  arbitra- 
tors so  far  as  that  award  affected  to  deal 
with  matters  in  question  in  the  suit  The 
appellant  upholds  the  award  and  asks  that 
the  orders  setting  it  aside  be  discharged 

The  circumstances  are  somewhat  involv- 
ed and,  in  detail,  elaborate  It  will  be 
possible,  however,  as  their  Lordships  hope, 
to  state  the  facts  in  a  summary  form  with- 
out endangering  such  accuracy  as  is  re- 
quisite for  the  purposes  of  their  judgment. 

The  disputants  are  descendants  of  one 
Nandram  Chamria,  and  their  disputes  are 
to  a  large  extent,  although  not  altogether, 
traceable  to  questions  concerning  the 
division  of  the  estate  of  one  of  his  sons  — 
Hardatroy  Chamria  —  whose  position  in  the 
family  with  his  relationship  to  the  parties 
before  the  Board  appears  in  the  following 
pedigree,  taken  from  the  judgment  of  Mr, 
Justice  Mookerjee  in  the  Appeal  Court. 


NANDRAM  OIIAMUIA 


f 

Gorakhi  am 


Haidatroy  Chainna 
Mtutammat  Annardeyi 


Ram  Protap 
(plaintiff) 


Amlokchrind 
Musammat  Surji 
(adopts  Keshabdeo) 


f 


Durga  Piosad  Radhakissen. 

Keshabdeo 


Motilal 


The  suit,  No.  120  of  1922,  related  to  a 
business  of  brokers  and  bankers  carried  on 
undei  the  style  of  Hardatroy  Chamria  and 
Company.  The  business  originally  had 
been  started  by  Hardatroy  alone  Some 
years  later  he  took  into  it,  first  as  an  assist- 
ant, then  as  a  partriei,  his  nephew,  the 
plaintiff  and  present  appellant,  Ram  Protab 
Chamria.  The  appellant's  share  as  a  part- 
ner was,  in  its  origin,  two  annas  ,  subse- 
quently, it  became  one  of  five  annas  Later 
still,  the  appellant's  brother,  Amlokchand, 
was  admitted  a  partner  with  a  two  annas 


est 


share. ,  He  died,  however,  in  1911,  and 
after  his  death  the  business  was  carried  on 
by  Hardatroy  and  the  appellant  together, 
Hardatroy  being  treated  as  possessed  of  an 
eleven  annas1  share  and  the  appellant  of 
the  remaining  share  of  five  annas.  By  an 
indenture,  dated  the  1st  October  1916,  and 
made  between  Hardatroy  and  the  appellant, 
it  was  agreed  that  this  partnership  should 
continue  for  20  years.  There  is  no  further 
reference  in  the  appellant's  plaint  to  the 
two  annas'  share  which  belonged  to 
Amlokchand  at  the  time  of  his  death.  The 
appellant  appears  to  treat  it  as  merged  in 
the  shares  of  himself  and  Hardatroy.  This 
position,  however,  is  not  accepted  by  the 
representative  of  Amlokchand's^  estate,  as 
will  later  appear. 

Amlokchand  left  no  issue  but  he  was 
survived  by  his  wife  the  respondent,  Musam- 
mat  Surji,  and  on  her  expressing  a  desire  to 
adopt  as  a  son  to  her  deceased  husband, 
Hardatroy's  youngest  son  Motilal,  Hardat- 
roy, so  it  was  alleged  by  the  appellant, 
agreed,  with  the  appellant's  consent,  to 
admit  Motilal  to  the  firm  setting  aside  for 
his  benefit  a  two  annas1  shaie  out  of  his 
own  share  of  eleven  annas.  This  arrange- 
ment, however,  if  it  became  effective  at  all, 
was  almost  immediately  superseded  by  an 
agreement  in  writing,  dated  the  16th  No- 
vember, 1916,  to  which  Hardatroy,  his  three 
sons,  the  appellant  and  Musammat  Surji 
were  privy  or  parties  and  under  which  in 
eftect  Hardatroy  ictired  from  the  firm  and 
it  was  agreed  that  the  business  should,  as 
from  1st  Januan,  1917,  belong  in  stated 
shares  to  the  appellant,  to  the  son  to  be 
taken  in  adoption  by  Musammat  Surji,  and 
to  the  three  sons  of  Hardatroy,  viz  ,  Durga 
Prosad,  Radhakissen  and  Motilal — with  a 
variation  in  interest  as  between  these  three, 
if  Motilal  proved  to  be  the  son  to  be  taken 
in  adoption  to  Amlokchand  as  contemplat- 
ed 

By  an  agreement  of  even  date  entered 
into  by  Musammat  Annardeyi,  Hardatroy 's 
wife,  and  his  three  sons,  but  fro  which  the 
appellant  was  not  a  party,  an  arrangement 
was  embodied  with  reference  to  the  division 
of  his  property  on  the  death  of  Hardatroy, 
an  event  then  apparently  regarded  as  im- 
minent. The  property  dealt  with  by  this 
agreement  in  terms  extends  to  Hardatroy's 
interest  in  the  partnership^  although  that 
interest  appears  to  have  been  disposed  of, 
and  differently,  by  the  agreement  already 
set  forth.  It  is  stated  in  this  second  agree 


HAM  PAOTAP  CHAMR1A  V.  DURGA  PROSAD  OHAMRIA.  [92  I-  ° 

ment  that  it  had  become  necessary  in  older 


to  settle  the  disputes  which  had  arisen 
regarding  the  rights  of  Durga  Prosad  who, 
unlike  each  of  his  younger  brothers,  was 
an  adopted  son  and  not  a  natural  son  of 
Hardatroy. 

In  the  following  month  Hardatroy  died. 
The  appellant's  case,  as  set  forth  in  his 
plaint,  then  was  that  the  business  since 
the  date  when  the  first  agreement  of  the 
16th  November,  1916,  became  operative, 
had  been  carried  on  upon  the  basis  of  that 
agreement  but  that  Musammat  Surji  had 
not  adopted  Motilal.  On  the  contrary,  she 
had  put  forward  Keshabdeo,  a  son  of  Durga 
Prosad,  as  the  son  whom  she  had  adopted 
to  her  late  husband.  The  appellant  disput- 
ed both  the  factum  and  the  validity  of  such 
adoption,  further  alleging  that  Durga  Prosad 
had  drawn  out  of  the  firm  about  twenty- 
one  lacs  without  the  knowledge  of  any  of 
the  parties,  that  he  had  taken  forcible  pos- 
session and  refused  inspection  of  the  part- 
nership books,  that  he  was  making  un- 
authorised entries  therein  to  suit  his  own 
purposes  and  that  he  had  been  guilty  of 
gross  misconduct  in  the  affairs  of  the  part- 
nership and  towards  the  partners.  Accord- 
ingly, the  appellant  claimed  dissolution  of 
the  partnership,  accounts  and  a  Receiver. 
He  cited  as  defendants  to  the  suit,  Durga 
Prosad,  Radhakissen  and  Motilal,  Musam- 
mat Surji  and  Keshabdeo.  It  will  be  noted 
that  Annardeyi,  Hardatroy 's  widow,  is  not 
a  party  to  the  proceedings. 

The  plaint  was  filed  on  12th  January 
1922.  No  written  statements  have  ever 
been  put  in,  but  it  mav,  their  Lordships 
think,  be  fairly  gathered  from  his  plaint 
that  the  only  questions  which  the  appel- 
lant, at  all  events,  ,de&ired  to  raise  in  the 
suit  were,  first  :  whether  the  adoption  of 
the  infant  defendant  Keshabdeo  had  ever 
taken  place  ;  whether  it  was  valid  if  it  had; 
and  who,  on  either  view,  were  the  persons 
interested  and  in  what  shares  in  the  partner- 
ship, which  was  treated  as  one  constitut- 
ed by  the  agreement  of  the  16th  November 
1916  ;  and  secondly  :  whether  the  allega- 
tions made  by  the  appellant  against  Durga 
Prosad  were,  if  established,  sufficient  to 
entitle  the  appellant  to  the  decree  of  dissolu- 
tion A\hich  ho  sought, 

But  these  did  not  comprise  all  the  matters 
of  difference  then  existent  in  the  family  of 
Nan H  ram  Ohamria.  First  of  all,  in  the  ap- 
pellant's own  immediate  branch  of  it,  there 
was  apparently  a  serious  dispute  between 


[92  I.  0.  1926]  RAM  PROTAP  OHAMRIA  1>.  &URGA  PRA8AD  CHAMRIA. 


635 


him  and  Musammat  Surji  upon  the  ques- 
tion whether  the  appellant  and  Amlokchand 
were  joint  or  separate  in  estate  ,  there  was 
another  as  to  the  rights  of  each  brother  in 
the  ancestral  or  self- acquired  property  of 
their  father  Gorakhram  ;  there  was  a  third 
as  to  the  claim  of  Musammat  Surji  to  certain 
Company  shares  standing  in  the  name  of 
the  appellant.  Next  there  was  a  question 
with  Amlokchand's  representatives  in 
which  not  only  the  appellant  but  the  estate 
of  Ilardatroy  was  concerned  namely,  whe- 
ther Amlokchand's  estate  was  entitled  to 
his  two  annas  or  some  other  share  in  the 
partnership  as  carried  on  prior  to  the  1st 
January  1917,  and  at  whose  expense  In 
Hardatroy's  branch  of  the  family  again  there 
were  fuither  serious  questions,  as  to  the 
validity  of  the  second  agreement  of  the  16th 
November  1916,  as  to  the  extent  of  his 
widow  Annardeyi's  property,  and  as  to  the 
rights  and  interests  in  the  property  of 
Hardatroy,  both  of  his  widow  and  his  three 
sons  respectively 

The  most  striking  feature  of  this  second 
and  third  sets  of  disputes  in  relation  to  the 
question  now  before  the  Board  is  the  in- 
terest in  them  of  Annardeyi  who,  as  has 
been  pointed  out,  was  not  a  party  to  the 
suit  at  all.  Nor  can  it  fairly  be  gathered 
fiom  its  terms,  as  their  Loidships  think, 
that  any  of  these  questions  are  either 
raised  or  foreshadowed  in  the  appellant's 
plaint  It  may  well  be  that  some  of  them 
would  have  been  mooted  in  one  or  other 
of  the  written  statements  of  the  defendants 
when  put  in.  But  this  must  still  remain 
in  the  region  of  conjecture  It  suffices  to 
say  that  none  of  them  have  so  far  become 
matters  in  question  in  the  suit, 

After  the  plaint  was  filed  the  adult 
members  of  the  family  appear  to  have 
come  to  the  conclusion  that  all  the  questions 
in  difference  amongst  them  should  be  re- 
ferred to  arbitration,  and  on  the  lllh  May 
1922,  Annardeyi, Ram  Protab,  Durga  Prosad, 
Radhrfkissen,  Motilal,  together  with  Keshab- 
deo,  by  Musammat  Surji  on  his  behalf, 
executed  a  document  addressed  to  Rai  Sew 
Erosadji  Toolsan  Bahadur,  Rai  Narang 
Raiji  Khaitan  Bahadur,  Bansidharji  Khai- 
tan,  Jugal  Kissoreji  Birla  and  Sew  Prosadji 
Gorodiya,  appointing  them  arbitrators  "  for 
the  settlement  of  all  matters  in  dispute 
amongst  ourselves"  agreeing  to  accept 
whatever  the  arbitrators  might  decide  with 
reference  to  the  said  disputes  and  in 
u  respect  of  the  proceedings  taken  in  Court 


with  regard  to  this  matter  before  this  day  " 
agreeing  that  the  "proper  parties  would 
make  in  accordance  with  the  directions  of 
the  arbitrators  such  applications  as  the 
arbitiators  might  think  necessary 

The  terms  m  which  this  document  is 
couched  suggest  veiy  cogently  to  their 
Lordships'  rnmds  that  it  was  so  far,  at  all 
events,  the  intention  of  all  the  paities  to  it 
that  the  proceedings  in  the  suit  should 
become  merely  ancillary  to  the  arbitration, 
if  indeed  they  were  not  thereby  to  be 
entirely  superseded.  And  if  the  applica- 
tion made  to  the  Court  had  been  that  all 
proceedings  in  the  suit  should  be  stayed 
and  an  order  in  these  terms  had  been  made 
thereon,  that  doubtless  would  have  been 
the  result  But  the  application  actually 
made  to  the  Couit  was  not  of  that  nature 
It  took  the  form  of  a  petition  presented  in 
the  suit  by  the  appellant  purporting  to  act 
with  the  approval  of  all  parties  and  referr- 
ing to  the  agreement  of  the  llth  May  1922, 
as  "an  agreement  to  refer  all  matters  in 
dispute  between  them'',  and  it  piayed,  in 
effect,  that  the  matters  alluded  to  in  the 
agreement  should  all  be  remitted  to  arbitra- 
tion in  accordance  with  its  terms 

But  whatever  may  have  then  been  the 
desire  of  the  parties,  including  it  may  well 
be  even  Annardeyi,  and  whatever  may 
have  been  the  belief  of  the  arbitrators  as 
to  the  terms  of  the  order  actually  made, 
the  Court  had  on  that  application  no  power 
to  icfei  to  arbitration  any  questions  bet- 
ween the  parties  to  the  suit  other  than  those 
in  question  m  the  suit  or  any  questions  in 
which  was  concerned  any  one  not  a  party 
to  the  suit  Nor  did  it  exceed  its  powers 
in  this  matter  for  by  its  order  made  on  the 
23rd  May  19J2,  although  not  actually  drawn 
up  until  the  following  month,  what  the 
Court  did  was  to  refer  all  matters  m 
difference  in  the  suit  between  the  parties  to 
the  suit  to  the  final  decision  of  the  arbitra- 
tors named  in  the  agreement  of  the  llth 
May,  19z2,  in  terms  of  that  agreement, 
with  consequential  directions  applicable  to 
such  a  refeience,  the  minor  defendant, 
Keshabdeo,  being  given  liberty  to  appear 
in  the  proceedings  through  his  attorney 

In  their  Lordships1  judgment  the  decision 
of  this  appeal  really  turns  upon  the  effect 
of  that  order  properly  interpreted.  It  was 
an  order  made  in  pursuance  of  paras  1  and 
3  of  the  Second  Schedule  to  the  C.  P  C  , 
and  in  the  exercise  of  a  power  thereby 
given  to  the  Court  to  refer  to  arbitration 


636 


RAM  PROTAP  OHAMUIA  V.  DdRGA  PftOSAD  OHAMRIA,  [92  I,  0,  19261 


matters  in  difference  in  a  suit  defined  by 
itself  in  the  order  of  reference.  It  is 
incumbent  upon  arbitrators  acting  under 
such  an  order  strictly  to  comply  with  its 
terms  The  Court  Hoes  not  thereby  part 
with  its  duty  to  supervise  the  proceedings 
of  the  arbitrators  acting  under  the  order. 
An  award  made  otherwise  than  in  accord- 
ance with  the  authority  by  the  order  confer- 
red upon  them  is,  their  Lordships  cannot 
doubt,  an  award  whbh  is  "otherwise  invalid" 
and  which  may  accordingly  be  set  aside 
by  the  Court  under  para.  15  of  the  same 
Schedule. 

The  difficulties  in  this  case  have  all  arisen 
from  the  fact  that  the  arbitrators  (misled 
it  may  well  be  by  the  attitude  of  the 
parties  at  the  time  of  their  appointment) 
have  not  fully  appreciated  the  importance 
of  the  fact  that  some  of  the  questions  con- 
eensually  submitted  to  them  were  already 
the  subject-matter  of  a  pending  suit  to  which 
one  of  the  persons  appointing  them  was  not 
even  a  party. 

The  arbitrators  did  not  wait  for  the 
Court's  formal  order  on  the  application  of 
the  23rd  May.  They  proceeded  at  once 
with  the  arbitration,  and  on  the  27th  May 
1922,  they  published  their  award.  That 
award  not  only  dealt  with  all  the  disputes 
above  detailed  but  it  is  clear  on  its  face 
that  the  arbitrators  in  no  way  discriminated 
between  those  disputes  which  were  at 
issue  in  the  suit  and  those  which  were  not, 
The  order  of  the  23rd  May  is  recited  as 
one: — 

il  By  which  all  matters  in  dispute  between 
the  parties  were  referred  to  our  arbitration 
provided  that  the  arbitration  is  to  be  in 
terms  of  the  said  agreement,  dated  the  llth 
May  1922,  and  that  the  attorney  for  the 
guardian  adhtemof  the  infant  defendant 
be  allowed  to  represent  him.'1 

And  it  is  clear  to  their    Lordships  from 
the  terms  of  the  award  itself —and  there  is 
extrinsic  evidence  to   the  same  effect — that 
in  reaching  their  conclusions  the  arbitrators 
took  a  comprehensive   view  of  the    family 
situation  and  made  an  award  which  doubt- 
less they    regarded  as    just  on  the  whole 
and  as  a  whole,   but  which  probably  they 
would  not,    in  any  of  its    parts,   have  them- 
selves  made   precisely  in  the  same  terms, 
if  the  dispute  thereby  dealt  with  had  alone 
er  separately  been  submitted   to  them  for 
adjudication. 

To  illustrate  by  a  striking  example  what 
their  Lordships  mean,  they  would  point  to 


the  shares  to  be  taken  in  the  new  partner- 
ship provided  for  by  the  award.  These 
precise  shares  have  apparently  no  counter- 
part in  the  shares  taken  in  the  dissolved 
partnership  according  to  either  of  the  agree- 
ments with  reference  thereto  which  the 
arbitrators  themselves  find  to  be  binding  on 
the  parties. 

The  award,  an  elaborate  document,  has 
been  carefully   analysed  by    the    learned 
Judges  in  the  Courts  in  India.    It  is    not 
necessary  that  their  Lordships  shcmld  again 
go  through  it  in  detail.    It  finds  both  of 
the  agreements  of  the  16th  November    1916 
to  be  binding:  it  declares  that  the  appellant 
and  Amlokchand  were  not  joint   but  sepa- 
rate in  estate  and— a  finding  which  vitally 
concerns  the  estate  of  Hardatroy — that  they 
are  respectively    entitled   to  a    five-annas 
and  a  two-annas  share  in  the  partnership 
business  up   to   the    31st  December  1916: 
that  the  adoption  of  Keshabdeo  was  valid  : 
while,  with  special  reference  to  the  partner- 
ship business,  the  award  declares   that  the 
partnership  ia  to  be    dissolved  with  effect 
from  the  30th  June  1922:  it  provides  for  a 
new  firm  being  constituted  as  from  the  1st 
July,    1922:   it    prescribes    the  shares    in 
which  the  old  partners  are  to  be  interested 
therein,  and  with  reference  to  that  partner- 
ship declares  that  in  case  any  of  the  partners 
do  not  agree  to  the  prescribed  conditions 
he  shall  inform  the  firm  in  writing,  where- 
upon  his  capital  will  be  returned  to  him 
and   his  connection   with  the    firm    shall 
cease  and  his  share  be  taken  up  equally  by 
the  remaining    partners.    This  last  is  the 
only  provision  in  the  award  for  the  satisfac- 
tion of  the  claims  against  the  property  and 
assets    of  the  dissolved  partnership  of  auy 
partner  who  does  not  choose  to  come  into 
the  new  partnership.     The  award  contains 
elaborate  further    provisions    for    the  ad- 
justment of  the  other  disputes  above  refer- 
red to.  ' 

In  their  Lordships'  judgment  such  an 
award  is  in  no  true  sense  one  made  in 
obedience  to  the  order  of  the  23rd  May, 
1922  While  it  would  not  be  easy  to  segregate 
the  findings  with  reference  to  the  matters 
in  question  in  the  suit  from  those  not  so  in 
question— the  findings  in  which  Annardeyi 
was  interested  from  those  in  which  she  was 
not— it  is,  their  Lordships  think,  impossible 
to  uphold  an  award  in  relation  to  a  suit  the 
conclusions  of  which  were  plainly  coloured, 
if  not  dictated,  by  the  view  taken  by  the 
arbitrators  of  other  questions  between  the 


f92  I.  0.  1926J 

parties  or  some  of  them  to  which   the    suit 
had  no  reference. 

Taking  even  a  narrower  view  of  the 
matter  the  award  so  far  as  it  purported 
to  constitute  anew  partnership,  giving  to  a 
party  viho  refused  to  come  in  to  it  only  rights 
which  were  far  below  those  to  which  as  a 
member  of  a  dissolved  partnership  he  was 
entitled  was  not  in  their  Lordship's  judg- 
rrtent  an  award  in  any  way  contemplated 
or  authorised  by  the  order  of  reference. 

To  the  award  when  published  Musammat 
Surji  as  guardian  ad  htem  of  Keshabdeo, 
took  strong  exception,  and  on  the  £th  July 
1922,  gave  notice  to  the  other  parties  to  the 
suit  of  an  application  by  hei  for  an  order 
that  the  award  should  be  set  aside  or  modi- 
fied or  corrected  by  expunging  therefrom  all 
passages  relating  to  matters  that  were  not  in 
question  in  the  suit.  On  that  application 
Mr  Justice  Greaves  by  order,  dated  the 
24th  July  1922,  set  aside  the  award  in  so 
far  as  it  purported  to  deal  with  matters 
referred  to  in  the  suit  His  order,  as  above 
stated,  was  affirmed  by  the  Appellate  Court 
by  an  order,  dated  the  19th  of  July  1923. 
Mr.  Justice  Greaves  based  his  decision 
primarily  upon  the  view  that  the  provisions 
of  the  award  relating  to  the  new  partnership 
were  quite  unauthorised  and  invalid.  The 
Appellate  Court  based  their  decision  upon 
the  ground  that  it  was  really  impossible 
according  to  the  Statute  Law  of  India 
that  one  and  the  same  arbitration  should 
be  held  as  Rankin,  J  ,  expresses  it  . — 

"As  to  the  matters  within  the  jurisdiction 
of  the  Court  and  matters  without  the 
jurisdiction  of  the  (Joint*  between  the 
parties  to  the  suit  and  between  them  and 
other  persons  under  the  Code  provided 
by  the  Indian  Arbitration  Act  and  under 
the  Code  provided  by  the  Second  Schedule 
under  the  superintendence  and  control  of 
the  Judge  who  has  seizen  of  the  suit  and  of 
the  Judge  disposing  of  business  under  the 
Indian  Arbitration  Act .  partly  upon  an 
order  of  reference  and  partly  under  an 
agreement." 

Their  Lordships  desire  to  reserve  their 
opinion  upon  the  question  whether  there 
may  not  be  exceptions  to  that  comprehen- 
sive statement. 

They  are  satisfied,  however,  for  the  rea- 
sons they  have  given,  that  the  order 
actually  made  by  one  Court  and  affirmed  by 
the  other  was,  in  this  case,  the  proper  order 
to  be  made. 
They  will  accordingly  humbly  advise  His 


RAM  SHANKAR  SINGH  U*  LAL  BAHADUR  SINGH. 


63? 


Majesty  that  this  appeal  therefrom  should 

be   dismissed  and  with  costs. 

z  K.  Appeal  dismissed 

Solicitors  for  the  Appellant. — Messrs  W 

W    Box  &  Co. 
Solicitors  for  the  Respondents* — Mr.  //  S. 

L.  Polak. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  443  OF  1924. 

December  14,  1925. 
Present;— Mr    Justice  Ashworth  and 

Mr.  Justice  Misra. 

RAM  SHANKAR  SINGH  AND  OTHERS— 
PLAINTIFFS—APPELLANTS 

versus 

LAL  BAHADUR  SINGH  AND   OTHERS— 
DEFENDANTS — RESPONDENTS, 

^  Hindu  Law — Widow—  Accretion?—  Limited  title  of 
husband  -Acquisition  of  fuller  title  — Admission  It/ 
widow- Rerersionejs,  whether  bound — Decree  on  ad- 
mission,  effect  of — Maiwat  grant,  nature  of 

Arcietions  made  bv  a  Hindu  widow  to  her  husband's 
estate  pnrtake  of  the  nature  of  th<jt  estate  It  is  of 
little  moment  whothei  tins  rule  of  law  is  one  of  Hindu 
Law  01  is  based  on  s  90  of  the  Trusts  Act  The  rule 
has  been  ascnbed  to  the  doctrine  of  graft  [p  639,  col 

Keechv  Sattdfoid,  (1726)  2  W  &  T  (7th  Ed)  693, 
25  E  R  223,  Sel  Cas  T  King  61  and  Kashi  Piasad  v. 
Inda  Kunwar,  30  A  490  at  p  495,  5  A  L  J  590  A 
W  N  (1908)  222,  referred  to 

Wheie  a  Hindu  widow  in  possession  of  hei  husband's 
property,  in  wlnoh  the  Litter  had  an  estate  of  a 
limited  natuic,  obtains  a  iuller  ebtate  in  the  property, 
the  fullei  title  is  an  accietion  to  her  estate  as  a  widow 
and  cannot  be  regarded  as  her  stridhan  [p  638,  col  2  ] 

Theie  is  a  piesumption  m  law  that  a  person  takeb 
possession  undei  title  rather  than  as  a  trespasser  and, 
on  the  death  of  her  luibband,  a  Hindu  widow  taking 
possession  of  hei  husband's  property  must  be  held  to 
do  so  as  a  Hindu  widow  [ibid  ] 

A  Hindu  widow  eannot  make  an  admission  in 
deiogation  of  the  lights  ot  the  leveisioners  which  has 
or  may  have  the  eftect  of  destroying  the  estate  of  the 
reversioners  This  is  governed  by  the  same  rule  as 
applies  to  wrongful  alienation  A  deciee  of  a  Court 
based  (without  contest)  on  such  an  admission  is  as 
void  01  voidable  as  the  admission  [p  639,  col  1 J 

A  maiwat  giant  in  Oudh  is  hentable,  but  not 
transferable  [p.  639,  col  2  ] 

Second  appeal  against  a  decree  of  the 
District  Judge,  Fyzabad,  dated  the  16th 
August  1924,  confirming  that  of  the  Sub- 
Judge,  Sultanpur,  dated  the  16th  January 
1924. 

Messrs.  Hyder  Husain  and  B.  N.  Srivas- 
tavat  for  the  Appellants. 

Messrs.  A.  P.  Sen  and  H.  K.  Ghosh,  for 
the  Respondents. 


BAM  SHAJSfKAfc 


V.  LAL  BAHADDR 


[92  I.  0.  1926J 


JUDGMENT. 

•  Ash  worth,  J. — This  seconJ  appeal 
arises  out  of  a  suit  brought  by  the  plaint- 
iffs-appellants against  the  defendants-res- 
pondents for  possession  of,  and  meane  profits 
in  respect  of,  certain  property.  The  plaint- 
iffs have  been  unsuccessful  in  both  the  lower 
Courts. 

The  origin  of  the  estate  in  question  was 
a  grant  by  the  Maharaja  of  Ajudhia  on  the 
22nd  January  1&64  of  the  land  in  question, 
to  one  Halbal  Singh.  The  grant  was  in 
consideration  of  the  death  of  the  father 
of  the  grantee  in  the  service  of  the  Maha- 
raja, and  is  called.a  marwat  grant.  Such  a 
grant  has  been  held  to  be  hereditary  (i.  e,, 
not  resumable)  but  non-transferable :  see 
Kalka  Bukhsh  Singh  v  Sheo  Ratan  (I)  and 
SiyaRamv.  Salikfty.  On  the  death  of  Halbal 
Singh  his  widow  Musammat  Baijnath 
Kuer  obtained  possession  of  the  property. 
The  Ajudhia  estate  on  the  llth  April  1913 
sued  the  widow  for  resumption  but  com- 
promised the  suit  after  the  present  defend- 
ants, Lai  Bahadur  Hingh  and  Earn  pal 
Singh,  had,  at  their  own  request  and  with 
the  consent  of  the  widow,  been  joined  as 
defendants  on  the  allegation  that  their 
father  Balkaran  Singh  had  been  adopted 
as  a  son  by  Halbal  Singh.  The  compromise 
was  that  the  widow  and  these  alleged  sons 
of  the  adopted  son  of  Halbal  Singh  should 
hold  the  property  in  under-proprietary  right 
in  consideration  of  a  rent.  It  was  dated 
28th  August  1913,  A  decree  was  passed  in 
accordance  withlthe  compromise.  It  declared, 
(in  virtue  of  the  power  to  do  so,  conferred 
011  the  Court  in  a  resumption  suit  of  this 
nature  by  s.  107-H  of  the  Oudh  Kent  Act 
XXII  of  1886)  the  title  of  the  widow  and  of 
these  two  persons  to  hold  the  land  as  under- 
proprietors  on  a  stated  rent.  On  the  20th 
July  1914  the  widow  and  these  two  per- 
sons (as  they  were  minors  they  were  repre- 
sented by  their  natural  mother  as  guardian) 
executed  a  usufructuary  mortgage  of  the 
property  in  favour  of  one  Jagatpal  Singh, 
a  real  brother  of  the  widow.  He  has  died 
issueless  and  the  two  male  defendants 
claim  to  have  succeeded  to  his  mortgagee 
rights  as  his  nearest  relations.  The  lower 
Courts  have  held  that  by  virtue  of  the  com- 
promise decree  dated  the  28th  August 
1913  the  widow  Musammat  Baijnath  Kuer 

(1)  Sel  Dec  No    18  of  1910 

(2)  77  Ind.  Cos.  352,  10  0.  L.  J.  335;  10  0.  &  A.  L 
R,  172;   (1924)  A.  I.  R.  (0.)  124;  L.  R,  5  A.  (0.)  13 

Rev. 


and  the  two  defendants  acquired  a  new 
and  independent  title  to  the  property 
which  could  not  be  held  to  be  an  accretion 
to  the  original  estate  of  Halbal  Singh.  For 
the  appellants  it  was  contended,  and  ia 
contended  in  this  appeal,  that  the  effect 
of  that  compromise  decree  was  merely  to 
enlarge  the  estate  left  by  Halbal  Singh 
which  was  held  at  the  time  by  Musammat 
Baijnath  Kuer  as  his  widow,  that  in  the 
circumstance  that  there  was  no  adoption 
of  the  father  of  the  defendants  Balkaran 
Singh  by  Halbal  Singh,  the  defendants 
can  get  no  advantage  from  the  compromise 
decree,  and  that  the  plaintiffs  as  reversioners 
of  Halbal  Singh  were  entitled  to  succeed 
to  his  estate  on  the  death  of  the  widow, 
whose  mortgage  to  her  brother  was  invalid 
for  want  of  proof  of  necessity.  In  this 
appeal  we  are  bound  by  the  finding  of 
fact  that  the  plaintiffs  are  reversioners  of 
Halbal  Singh.  No  attempt  also  having  been 
made  to  prove  that  the  mortgage  by  Musam- 
mat  Baijnath  Kuer  to  her  brother  was  for 
necessity,  we  must  hold  that  mortgage  in- 
valid so  far  as  it  was  one  made  by  the 
widow.  Only  two  questions  arise.  The  first 
is  whether  the  compromise  deciee  gave  the 
lady  Baijnath  Kuer  a  new  and  independent 
title  in  the  property.  I  hold  that  it  did 
not  do  so.  On  the  death  of  Halbal  Singh 
the  widow  must  be  held  to  have  obtained 
or  retained  possession  of  the  property  as 
his  widow.  There  is  a  presumption  in  law 
that  a  person  takes  possession  under  title 
rather  than  as  a  trespasser.  Here  it  would 
appear  that  she  had  a  title  to  retain  the 
property  of  the  grant  on  the  ground  that 
it  was  a  heritable  grant.  Even  if  the 
heritability  of  the  grant  to  Halbal  Singh 
could  be  called  in  question,  it  is  clear  from 
Musammat  Baijnath  Kuer's  pleadings  in 
the  resumption  ca&e  brought  by  the  Ajudhia 
estate  that  she  set  up  a  title  derived  from 
her  deceased  husband.  Her  possession  (and 
possession  alone  is  a  title  available  against 
all  but  the  rightful  owner)  was  possession 
as  a  Hindu  widow.  It  was  only  by  reason 
of  her  title  to  the  property  as  Hindu  widow 
that  she  obtained  the  fuller  estate  of  an 
under-proprietor  under  the  compromise 
decree  of  the  28th  August  1913.  This 
fuller  title  was  clearly  an  accretion  to  her 
estate  as  widow  and  cannot  be  regarded 
as  her  stridhan.  We  may  note  that  even 
if  it  were  her  stridhan  the  plaintiffs  might 
have  claimed  that  it  devolved  on  her  hus- 
band's heirs,  but  they  have  not  claimed  on 


O.  1926] 


RAM  SHANKAR  SINGH  V.  LAL  BAHADUR  flN(*H.. 


639 


this  ground  It  is  established  by  law  tho,t 
accretions  made  by  a  Hindu  widow  to  her 
husband's  estate  partake  of  the  nature  of 
that  estate.  It  is  of  little  moment  whether 
this  rule  of  law  is  one  of  Hindu  Law  (see 
para.  267  of  Gour's  Hindu  Code,  2nd 
Edition)  or  is  based  on  s.  90  of  the  Indian 
Trusts  Act.  The  rule  has  been  ascribed  to 
the  doctrine  of  graft  as  enunciated  in  the 
leading  English  case  of  Keech  v.  Sand-ford 
(3)  and  in  the  case  of  Kashi  Prasad  v.  Inda 
Kunwar  (4).  1  hold,  therefore,  that  the 
lower  Courts  were  wrong  in  their  decision 
of  this  question  which  must  be  answered  in 
the  negative. 

The  second  question  is  whether  the  in- 
clusion of  the  two  defendants  as  parties  to 
the  compromise  decree  vested  in  them  a 
title  independent  of  the  widow.  They 
were  made  pai  ties  to  that  suit  and  decree 
on  the  allegation  that  by  reason  of  the 
adoption  of  their  father  by  Halbal  Singh 
they  were  grandsons  of  Halbal  Singh  and 
his  reversioners.  The  present  plaintiffs  weie 
no  parties  to  the  suit  and  the  decree.  As 
against  them  the  defendants  have  failed 
to  prove  the  adoption  01;  their  position  as 
successors  of  the  estate  of  IJalbal  Singh 
This  being  so,  the  plaintiffs  can  treat  the 
joinder  of  the  defendants  as  parties  to  the 
resumption  suit  and  to  the  compromise 
decree  as  an  unlawful  and  voidable  act  on 
the  part  of  the  widow  designed  to  alter 
the  succession.  It  was  only  owing  to  the 
consent  and  admission  of  widow  that  the  de- 
fendants were  so  joined  as  parties  A  Hindu 
widow  cannot  make  an  admission  m  dero- 
gation of  the  rights  of  the  reversioners  which 
has  or  may  have  the  effect  of  destroying 
the  estate  of  the  reversioners  This  is 
governed  by  the  same  rule  as  applies  to 
wrongful  alienation.  A  decree  of  a  Court 
based  (without  contest)  on  such  an  admis- 
sion is  as  void  or  voidable  as  the  admission. 
A  title  decree  resulting  in  these  circum- 
stances from  an  illegal  admission  of  a  Hindu 
widow  can  obviously  possess  no  higher 
validity  than  a  sale  by  a  Court  in  execution 
of  a  decree  procured  by  an  illegal  confes- 
sion of  judgment  on  the  part  of  a  Hindu 
widow,  where  the  purchaser  is  aware  of 
the  illegality  of  the  confession  of  judgment 
It  could  not  be  maintained  that  the  latter 
could  be  upheld  ,  nor  can  the  former.  The 

(3)  (1726J  2W.  &  T  (7th  Ed)  693,  25  E.  R    227, 
Sel    Gas    T    King  61. 

(4)  30  A,  490  at  p.  495;  5  A.  L.  J.  590;  A,  W.  N, 
(1908)  222. 


second  question  is,  therefore,  also  decided 
against  the  respondents. 

I,  therefore,  hold  that  the  suit  of  the 
plaintiffs-appellants  should  have  been 
decreed 

Misra,  J. — I  agree  with  the  order  \vhieh 
my  learned  brother  proposes  to  pass  in  the 
case.  I  wish  to  add  a  few  i  em  arks  It  waa 
contended  on  behalf  of  the  lespondents  that 
the  deed  of  grant  (Ex.  2)  did  not  confer 
heritable  rights  on  the  grantee  and  if  the 
widow,  Baijnath  Kuei,  took  possession  of 
the  property  after  the  death  of  her  husband 
Halbal  Singh  she  cannot  be  deemed  to  have 
succeeded  to  the  grant  by  right  of  inherit- 
ance The  argument  was  to  the  effect  that 
if  the  lady  took  possession  adveisely  and 
not  by  right  of  inheritance  she  could  not 
be  considered  to  have  taken  it  for  the  bene- 
fit of  the  reversioners  The  words  used 
in  the  grant  were  relied  upon  to  show  that 
the  rights  conferred  under  it  were  not  herit- 
able If  the  lights  conferred  under  it 
were  not  heritable  and  if  the  widow  did 
not  succeed  by  virtue  of  inheiitance  and  if 
she  could  not  in  that  case  be  considered  to 
have  taken  the  piopeity  for  the  benefit  of 
the  reversioners,  any  interest  that  she  ac- 
quired must  be  deemed  to  have  been  ac- 
quired for  her  own  benefit  and  could  not 
be  considered  to  be  an  accretion  to  the 
estate  available  to  the  reversioners  I  have 
consideied  this  argument  but  it  appears  to 
me  that  there  is  no  substance  in  it  The 
marwat  grant  in  Oudh  always  implies 
the  idea  of  its  being  a  heritable  grant  Mr. 
Sykes  in  his  mtioduction,  appended  to  his 
learned  work  The  compendium  of  Oudh 
Taluqdan  Law,  states  on  page  186  that  at 
the  time  of  the  regular  settlement  in  the 
Province  "marwat"  grant  was  always  under- 
stood to  be  a  grant  which  could  not  be 
resumed  and  was  always  to  be  inherited  by 
the  heirs  of  the  grantee  That  such  a 
grant  is  heritable  was  held  in  a  decision  of 
the  Board  of  Revenue  in  Kalka  Bakhsh 
Singh  v  Sheo  Ratan  (l)and  in  a  decision  of 
the  late  Court  of  the  Judicial  Commissioner 
of  Oudh  reported  as  Siya  Ram  v.  Salik 

(2)- 
The  deed    of  grant  specifies  the  nature 

of  that  grant  by  calling  it  expressly  by  the 
name  of  marwat.  It,  therefore,  appears  to 
me  to  be  clear  that  the  marwat  grant 
which  was  in  possession  of  her  husband, 
Halbal  Singh,  by  right  of  inheritance  after 
his  death  [and  it  is  not  correct  to  say  that 


QOP1LAL  BHAWANIRAM  U. 


she  succeeded  to  the  property  in  an}7  other 
capacity  than  that  of  a  Hindu  widow.  It 
is  also  clear  from  the  written  statement 
filed  by  her  in  the  redemption  suit  wherein 
she  definitely  stated  that  she  had  succeeded 
to  the  property  in  suit  in  the  capacity 
of  the  widow  of  Halbal  Singh  after  his 
death.  If,  therefore,  Musammat  Baijnath 
Kuer  succeeded  to  the  grant  by  right  of 
inheritance  and  if  by  virtue  of  her  being  in 
possession  of  that  grant  as  a  Hindu  widow 
she  acquired  by  compromise  with  the  Ajudhia 
estate  complete  under* proprietary  rights, 
those  rights  must  be  deemed  to  have  been 
acquired  by  her  for  the  benefit  of  the  rever- 
sioners  of  her  husband. 

This  is  founded  on  the  principle  enun- 
ciated in  the  English  cases,  Keech  v.  Sand- 
ford  (3)  and  Yem  v.  Edwards  (5).  Apart 
from  the  decision  of  the  Allahabad  High 
Court  reported  as  Kashi  Prasad  v,  Inda 
Kunwar  (4)  quoted  in  the  judgment  of  my 
learned  brother,  there  are  a  number  of  deci- 
sions of  the  Madras  High  Court  on  this  point 
in  which  the  same  view  of  law  has  been 
taken,  I  would  only  mention  a  few  of  them, 
Narasimha  Charlu  v.  Srinivasa  Charlu  (6), 
Gunnaiyanv.  Kamakchi  Ayyar  (7),  Vangala 
Dikshatulu  v,  Vangala  Gavaramma  (8)  and 
Subbaraya  Chetty  v.  Aiyaswami  Aiyar  (9). 

It  was  also  contended  that  because  the 
respondents  were  impleaded  in  the  resump- 
tion suit  and  because  they  were  parties  to 
the  compromise  by  virtue  of  which  under- 
proprietary  rights  were  conferred  by  the 
Ajudhia  estate  it  should  not  be  held  that 
those  rights  were  acquired  by  the  defend- 
ants for  the  benefit  of  the  reversioners.  I 
examined  this  point  carefully  and  on  doing 
so  I  find  that  the  contention  has  no  force  as 
will  appear  from  the  facts  which  I  proceed 
to  give 

On  the  llth  of  April  1913,  the  Ajudhia 
estate  brought  a  suit  for  resumption  (vide 
Ex.  7)  against  Baijnath  Kuer.  On  the  30th 
of  Mav  1913,  she  filed  a  written  statement 
(vide  Ex.  8).  On  the  12th  July  she  filed 
an  application  alleging  that  the  father  of 
the  defendants-respondents  had  been  adopt- 
ed by  her  husband  Halbal  Singh  and  on  the 
same  date  the  Court  passed  an  order 
impleading  the  present  defendants  as  par- 

(5)  (1857)  44  E.  R.  855;  1  De  G.  &  J.  598,  27  L  J. 
Cli  23;  4  Jur.  (N.  a.)  647,  6  W.  R.  20;  118  R.  R. 
249 

(6)  6  M.  L.  J.  119. 

(7)  26  M.  S39. 

(8)  29  M.  13. 

(9)  1  lad.  Gas.  749;  32  M,  86;  5  M.  L,  T.  80. 


[92  I.  0. 1926] 

ties  in  that  case  (vide  Exs,  14  and  9).  On 
the  28th  August  1913  a  compromise  was 
arrived  at  between  all  the  defendants  in- 
cluding Baijnath  Kuer  on  one  side  and  the 
Ajudhia  estate  on  the  other  (vide  Ex.  12) 
and  the  Court  then  passed  a  decree 
granting  under-proprietary  rights  to  the 
defendants  (vide  Ex.  11).  In  all  these 
proceedings  Musammat  Baijnath  Kuer  con- 
tinued to  remain  a  party  in  the  case  Her 
name  was  never  struck  out  from  the  record. 
If,  therefore,  by  her  allegations  the  defend- 
ants were  added  as  a  party  and  if  any 
benefit  accrued  by  virtue  of  a  compromise 
entered  into  by  them  with  the  Ajudhia 
estate,  Musammat  Baijnath  Kuer  continu- 
ing a  party  to  the  suit,  the  benefit  must  be 
deemed  to  have  accrued  for  the  benefit  of 
the  estate  represented  at  the  time  by  Baij- 
nath Kuer  and  the  defendants.  The  defend- 
ants were  not  impleaded  in  an  any  other 
capacity  but  as  representing  the  adopted  son 
of  Halbal  Singh  and  if  they  acquired  any 
benefit  by  virtue  of  such  a  possession  they 
must  be  prepared  to  give  up  that  benefit 
to  the  reversioners  of  Halbal  Singh  who 
have  now  been  found  entitled  to  this  estate, 
the  defendants  fiaving  failed  to  establish 
the  title  of  their  father  an  adopted  son  of 
Halbal  Singh.  I  am,  therefore,  of  opinion 
that  the  under- proprietary  rights  acquired 
by  the  defendant  must  inure  to  the  benefit 
of  the  reversioners  of  Halbal  Singh  and  the 
plaintiffs  having  now  established  the  said 
title  are  now  entitled  to  that  benefit. 

I,  therefore,  agree  that  this  appeal  should 
be  decreed  and  the  decree  of  the  Courts 
below  dismissing  the  suit  should  be  set 
aside  and  that  the  plaintiffs*  suit  decreed 
with  costs  in  all  the  Courts. 

By  the  Court. — The  appeal  is  allowed 
and  the  suit  of  the  plaintiffs  is  decreed  with 
costs  throughout. 

N.  H.  Appeal  allowed. 


NAQPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  312- B  OP  1924. 

November  26,  1925. 

Present:— -Mr.  Findlay,  Officiating  J.  C. 

GOPILAL  BHAWANIRAM— PLAINTIFF 

— APPELLANT 

versus 
PANDURANG  AND  OTHERS— DEFENDANTS 

—RESPONDENTS. 
Contract   Act    (IX  of  1872)>  88.  23,  65—Company 


1 1.  0. 1928] 


SOPIU.L  B*AWANIRAM  V.  PA\'DTTRAN<J. 


641 


prohibited  by  law— Dissolution,  suit  /or,  whether  main- 
tamable — Void  contract — Consideration,  recovery  of, 
suit  for — Limitation,  operation  of. 

A  .Company  whose  f  ormation  is  prohibited  without 
registration  under  the  Companies  Act,  cannot,  if  un- 
registered, be  recognised  by  the  Courts  as  having  any 
legal  existence,  and  no  suit  is  maintainable  for  its 
dissolution  at  the  instance  of  any  partner  entering 
into  the  same  with  his  eyes  open.  [p.  613,  col.  1.] 

The  time  at  which  an  agreement  is  discovered  to 
be  void,  so  that  the  cause  of  action  to  recover  the 
consideration  may  arise  under  a  65  of  the  Contract 
Act,  in  the  absence  of  special  circumstances,  is  the 
date  of  the  agreement,  [ibid  \ 

Bai  Diwali  v  Umedbhai  Bfmlabhai  Patel,  36  Ind 
Cas  561;  40  U  614,  18  Bom.  L  R  773  and  Javerbkai 
Jorabhai  v  Gordkan  Narsi,  28  Ind  Cas  442,  17  Bom. 
L.  R  259  at  pp.  265,  266,  3DB.  358,  relied  on 

Appeal  against  the  decision  of  the  District 
Judge,  Amraoti,  dated  the  8th  July  1924,  in 
Civil  Appeal  No.  23  of  1924. 

Sir  Dr.  H.  S.  GOUT  and  Mr.  V.  R.  Brahma, 
R.  8  ,  for  the  Appellant. 

Sir  B.  K.  Bose,  Messrs.  R.  N.  Rudra,  A. 
V.  Kfiare  and  W.  B.  Pendharkar,  for  the 
Respondents. 

JUDGMENT,— The  plaintiff-appellant 
Qopilai  Bhawaniram  sued  some  31  defend- 
ants including  the  present  defendants-re- 
spondents Pandurang  Govind  and  Bapu 
Lingappa  in  the  Court  of  the  Subordinate 
Judge,  Danvha,  under  the  following  cir- 
cumstances. 

In  1903,  the  plaintiff  and  29  other  persons 
mentioned  in  schedule  A  attached  to  the 
plaint  had  formed  themselves  into  a  Com- 
pany or  Association  for  the  purpose  of  carry- 
ing on  a  cotton  ginning  business  and  had 
established  a  factory  for  the  purpose.  The 
shares  of  the  Company  were  of  Us.  250  each, 
and  plaintiff  held  four  such  shares.  The 
Company  was  not  duly  registered,  but, 
inspite  of  this,  it  carried  on  its  business  fbr 
some  time.  In  schedule  C  attached  to  the 
plaint,  the  alleged  assets  of  the  business 
were  stated.  The  present  suit  was  brought 
for  dissolution  of  the  partnership  and  for 
recovery  by  the  plaintiff  of  his  proportionate 
ehare  from  the  assets  of  the  business.  The 
4th,  5th  and  6bh  defendants  stated  that  they 
also  wanted  dissolution,  but  other  contest- 
ing defendants  raised  a  preliminary  objec- 
tion that  as  the  Company  was  not  register- 
ed the  suit  was  not  maintainable  at  law. 
The  J  udge  of  the  first  Court  accordingly 
framed  two  issues  dealing  with  the  pre- 
liminary objection.  These  were  as  fol- 
follows:  — 

(i)  Whether  the  suit  was  or  was  not 
maintainable  under  s.  4  of  the  Indian  Com- 
panies Act,  1913? 

41 


(2)  Whether  para.  4-D  (2)  of  the  plaint 
entitled  the  plaintiff  to  sue  for  the  re- 
liefs mentioned  in  para.  10  thereof  in- 
spite of  the  above  specified  section  of  the 
Companies  Act. 

Paragraph  4-D  (2)  of  the  plaint  may  be 
stated  as  follows: — 

"Besides  this  the  plaintiff  begs  to  state 
as  follows,  even  if  the  Court  holds,  for  any 
reasons  whatsoever,  that  the  partnership 
having  been  found  to  be  illegal,  cannot  be 
dissolved:— The  plaintiff  and  the  other  part- 
ners have  engaged  their  moneys  in  the 
partnership,  and  the  partners  have  trans- 
formed the  said  moneys  into  the  moveable 
and  immoveable  property  mentioned  in 
schedule  C,  and  the  estate  thus  transform- 
ed belongs  to  the  partners,  and  it  was  on 
behalf  of  the  partners  that  the  defendants 
Nos.  1  and  2  took  the  same  into  their  posses- 
sion in  their  capacity  as  managers  on  25th 
September  1919,  It  is  the  right  of  the 
plaintiff  to  get  the  partnership  business 
discontinued  and  to  recover  the  amount 
invested  by  him  in  the  partnership  from 
the  sale-proceeds  of  the  property  mentioned 
in  schedule  C,  pioportionately  to  his  share* 
On  26th  August  1922  the  plaintiff  asked  the 
defendants  Nos.  1  and  2,  by  a  written 
notice,  to  act  accordingly,  but  as  they  gave 
no  reply,  the  plaintiff  has  brought  thia 
suit  praying  that  the  property,  mentioned 
in  schedule  C  be  sold,  and  that  the  amount 
of  his  share  be  given  to  him,  or  that  the 
partnership  be  dissolved  in  the  aforesaid 
manner.  The  cause  of  action  arose  at  place 
Darwha,  on  26th  August  1922  and  often 
subsequently," 

The  Subordinate  Judge  held  that  the 
Indian  Companies  Act  of  1884  was  appli- 
cable to  Berar  in  191)3,  and  that  an  associa- 
tion like  the  one  we  are  concerned  with  was 
compulsorily  registrable  with  the  Registrar 
of  the  Joint  Stock  Companies  at  Amraoti, 
as  the  said  association  consisted  of  more 
than  20  persons.  He  accordingly  held  that 
s.  23  of  the  Contract  Act  applied  to  the 
case,  the  initial  contract  bringing  the  as- 
sociation into  existance  being  illegal  and 
opposed  to  public  policy.  Relying  on  the 
decision  of  Stanyon,  A.  J.  C.,  in  Akola  Gi*n 
Combination  v.  Nortlicote  Ginning  Factory 
(1),  he  held  that,  whether  the  suit  was  re- 
garded as  one  for  dissolution  of  partnership 
or  for  a  proportionate  part  of  the  profits 
and  assets  of  the  association  corresponding 
to  plaintiff's  interest  therein,  it  did 
(1)  26  lad,  Gas,  613;  10  N,  L,  B,  98, 


642 


GOPILXL  BIUWANIRAM  V.  PANDDRAtiGk 


[92  1.  0. 1926] 


therefore,  lie  as  the  partnership  was  ab 
mitio  illegal.  He  further  held  that  the 
present  suit  could  not  be  regarded  as  one 
for  contribution  or  for  the  recovery  of  sub- 
scription for  a  common  fund.  In  any  event 
as  regards  this  latter  point  be  held  that  the 
fact  of  plaintiff  having  delayed  bringing 
this  suit  forsome  twenty  years  deprived  him 
both  in  law  and  equity  of  any  claim  to 
relief.  The  plaintiff's  suit  was  accordingly 
dismissed  on  these  preliminary  points. 

The  plaintiff  appealed  to  the  Court  of  the 
District  Judge,  East  Berar.  The  Judge  of 
the  lower  Appellate  Court  relying  on  a  de- 
cision of  the  Allahabad  High  Court  in  Ram 
Kumar  v.  Nem  Chand  (2)  reported  ia  an 
unauthorised  publication,  confirmed  the 
decision  of  the  first  Court  and  dismissed 
the  appeal.  The  plaintiff  has  now  come  up 
on  second  appeal  to  this  Court. 

It  has  been  candidly  admitted  by  the 
learned  Counsel  for  the  appellant  that  the 
present  association  became  illegal  in  con- 
sequence of  its  non- registration  under  the 
Indian  Companies  Act.  What  has  been 
urged,  however,  on  behalf  of  the  appellant 
is  that  what  the  law  prohibits  is  the  carry- 
ing on  of  the  business  but  that  it  is  never- 
theless open  to  the  plaintiff  to  press  for 
liquidation  and  re-distribution  of  funds.  I 
have  been  referred  in  this  connection  by 
Counsel  for  the  appellant  to  remarks  which 
appear  in  the  9th  Edition  of  Lindley  on 
Partnership  at  pages  144-145.  These  remarks 
are  as  follows: — 

"If  money  is  paid  by  A  to  B  to  be  ap- 
plied by  him  for  some  illegal  purpose,  it 
is  competent  for  A  to  require  B  to  hand 
back  the  money  if  he,  B,  has  not  already 
parted  with  it  and  the  illegal  purpose  has 
not  been  carried  out  either  wholly  or  in 
part.  Although,  therefore,  the  subscribers 
to  an  illegal  Company  have  not  a  right  to 
#n  account  of  the  dealings  and  transactions 
of  the  Company  and  of  the  profits  made 
thereby,  they  have  a  right  to  have  their 
subscriptions  returned;  and  even  though 
the  moneys  subscribed  have  been  laid  out 
in  the  purchase  of  land  and  other  things 
for  the  purpose  of  the  Company  the  sub- 
scribers are  entitled  to  have  that  land  and 
those  things  re-converted  into  money,  and 
to  have  it  applied  as  far  as  it  will  go  in 
payment  of  the  debts  and  liabilities  of  the 
concern,  and  then  in  re-payment  of  the  sub- 
scriptions In  such  cases  no  illegal  con- 
tract ia  sought  to  be  enforced;  on  the  con-1 

(2)  61  tod.  Gas,  447;  19  A  U  J,  836, 


trary  the  continuance  of  what  is  illegal  is 
sought  to  be  prevented." 

It  is  urged  that  on  the  remarks  stated 
in  the  passage  quoted,  the  present  suit  is 
maintainable  and  there  should  be  a  remand 
of  the  case.  In  this  connection  I  have  also 
been  referred  to  the  following  statement 
made  by  plaintiff's  Pleader  on  20th  August 
1923,  which  is  as  follows: — 

"The  plaintiff  maintains  that  s.  4  of  the 
Companies  Act  is  no  bar  to  the  present  suit. 
Even  if  it  is  held  to  be  barred  under  s.  4  of 
the  Act  plaintiff  has  stated  in  the  plaint 
that  his  money  has  been  converted  into 
moveable  and  immoveable  property  now  in 
possession  of  defendants  Nos.  1  and  2  on 
behalf  of  other  partners.  The  plaintiff 
claims  that  he  is  entitled  to  the  proceeds  of 
the  properties  according  to  his  share.1' 

It  has  also  been  suggested  that  the  prin- 
ciple underlying  the  decision  of  Prideaux, 
A.  J.  C.,  in  Narayan  v.  Motisa  (3)  is  appli- 
cable to  the  present  case.  It  has  been  alleg- 
ed that  the  plaintiff  should  not  be  penalised 
because  the  managers  of  the  Company  had 
failed  to  do  their  duty  in  having  the  Com- 
pany registered,  c/.,  Harnath  Kuar  v. 
Indar  Bahadur  Singh  (4). 

As  regards  the  time  from  which  limita- 
tion would  run  in  the  event  of  the  suit 
being  maintainable,  it  has  been  contended 
on  behalf  of  the  appellant  that  time  would 
run  from  when  the  contract  was  discovered 
to  be  void,  c/.,  Srinivasa  Aiyar  v.  Seshv 
Iyer  (5)  and  Mathura  Mohan  Saha  v.  Ram 
Kumar  Saha  and  Chittagang  District  Board 
(6). 

On  behalf  of  the  respondents  it  has  been 
urged  that  the  present  association  must  be 
deemed  to  have  had  no  existence  in  the  eye 
of  the  law.  The  various  members  of  the 
association,  it  is  said,  combined  together 
and  formed  the  so-called  Company  with 
their  eyes  open  contributed  money,  bought 
land  and  set  up  a  factory  in  which  a  cotton 
ginning  business  was  carried  on  for  some 
time.  It  is  suggested  that  the  members  of 
the  association  did  this  with  their  eyes 

(3)  78  tod.  Cas.  343;  20  N.  L,  R.  87,  (1924)  A.  I.  R 
(N )  132  l         ' 

(4)  71  Ind  Cas  629,  45  A.  179,  (1922)  A.  L  R  (P,  C,) 
403,  9  0  &  A.   L    R.  270;  9  O    L  J.  652,  44  M  L.  J, 
489;  37  0  L  J.  346;  27  C.  W.  N.  949,  501  A.  69,  18  L. 
W  383,  26  0  C,  223;  33  M  L,  T.  216,  5  P.  L.  T,  281;  2 
Pat  L  R  237  (P.  0 ) 

(5)  41  Ind.  Cas  783;  ,41  M.  197;  6  L.  W.  42;   34  M.  L. 

(6)  35  Ind,  Cas,  305;  43  C,  790;  23  C,  L.  J,  26;  20  C ' 


(82 1.  0. 1926] 


•OPILAL  BAWANIRAM  V 


open  and  yet  failed  to  register  the  Com- 
pany. By  so  doing  the  membeis  of  the 
association  as  a  whole  deliberately  disobeyed 
or  ignored  the  law  and  in  these  circum- 
stances no  relief  can  be  granted.  In  support 
of  this  position  a  decision  in  In  re  Padtfow 
Total  Loss  and  Collusion  Assurance  Associa- 
tion (7)  is  relied  on.  That  decision  was  to 
the  effect  that  where  an  association  of  more 
than  twenty  persons  had  been  formed  and 
was  not  registered,  its  formation  was  for- 
bidden by  the  Companies  Act,  1862,  and 
that  the  Courts,  therefore,  could  not  re- 
cognise it  as  having  any  legal  existence  and 
the  order  for  winding  it  up  must  be  dis- 
charged. 

For  my  own  part  I  am  unable  to  see  that 
the  remarks  quoted  above  in  Lindley  on 
Partnership,  supported  as  they  are  by  the 
English  cases  quoted  therein,  can  give  any 
help  to  the  present  appellant  In  the  pre- 
sent instance  the  partnership  was  for  a 
considerable  time  carried  on  in  defiance  of 
the  law.  The  money  subscribed  was  utiliz- 
ed for  the  purposes  of  the  factory  and  the 
objects  of  the  Company  were  fulfilled  to 
the  utmost.  It  seems  to  me  utterly  im- 
possible in  the  circumstances  of  the  pre- 
sent case  to  assume  that  the  plaintiff  was, 
as  he  now  alleges,  in  utter  ignorance  of 
the  illegality  of  the  association  upto  the 
25th  August  1922  when  he  gave  formal 
notice  for  the  winding  up  of  the  Company. 
The  plaintiff  cannot  be  presumed  to  be 
ignorant  of  the  law  and  he  is  as  much  res- 
ponsible as  the  respondents  for  the  breach 
of  the  law  which  has  occurred  In  Ananda 
Mohan  Roy  v  Gour  Molian  Mulhck  (8)  their 
Lordships  of  the  Privy  Council  laid  down 
that  the  time  at  which  an  agreement  is  dis- 
covered to  be  void  ao  that  a  cause  of  action 
to  recover  the  consideration  may  aiise 
under  s  65  of  the  Indian  Contract  Act,  in 
the  absence  of  special  circumstances,  is  the 
date  of  the  agreement,  cf ,  Bai  Diwah  v. 
Umedbhai  Bhulabhai  Patel  (Q)&ndJaverbhai 
Jorabhai  v  Gordhan  Narsi  (10).  From 
this  point  of  view  also  the  plaintiff's  suit 
which  at  the  best  would  have  lain  under 

(7)  (1882;  20  Oh   D    137,  51  L  J  Ch  341,  45  L  T. 
'774,  30  W  R    326 

(8)  74  Ind  Gas  499,  50  C  929,  21  A    L  J  718,  4  P, 
L  T.609,  (1923)  A  I  R  (P  C)  189,    U923)    M    W  N, 
803,  45  M  L  J   617,  25  Born  L    R    1269,  33  M  L  T 
365,  50  I    A    239,  28  C  W.  N    713,  40  C  L    J    10 
(P  0). 

(9)  36  Ind  Oaa  564,  40  B  614,  18  Bom,  L  R.  773. 

1 10)  28  Ind  Gas,  442,  17  Bom,  L,  R.  259  at  pp.  255, 
£96;  39  B.358.  r 


Art,  62  of  First  Schedule  of  the  Limitation 
Act,  is,  in  my  opinion,  long  since  barred. 
There  can  be  no  question  but  that  the  pre- 
sent association  it  regarded  as  a  Company 
was  illegal  from  the  first  and  that  the 
contract  was,  therefore,  ab  imtio  void  It 
is  utterly  impossible  in  the  circumstances 
of  the  present  case  to  attempt  to  saddle  the 
responsibility  for  the  illegality  only  on  the 
managers  of  the  Company.  All  the  so- 
called  partners  must  be  considered  as  res- 
ponsible therefor. 

Nor  can  I  see  that  the  attempt  to  disguise 
the  relief  which  the  plaintiff  really  claims 
by  calling  it  instead  of  a  suit  for  dissolu- 
tion of  partnership  one  for  return  of  sub- 
scriptions, for  contribution,  can  possibly 
make  any  difference  in  the  legal  aspect  of 
the  case  This  different  description  of  the 
relief  claimed  is  only  a  different  way  of 
asking  for  what  is  in  effect  a  dissolution  of 
partnership.  It  has  been  suggested  that 
Art  96,  Limitation  Act,  applies  to  the  case, 
and  that  the  present  suit  even  if  regarded 
as  one  for  contribution  or  the  like  would 
still  be  within  time  as  the  plaintiff  only 
came  to  know  of  the  mistake  in  1922.  In 
my  opinion  the  plaintiff  must  be  presumed 
to  have  had  actuil  or  constructive  notice  of 
the  illegality  from  the  first  and  there  can 
be  no  question  of  holding  that  the  plgiint- 
iff  as  against  the  present  respondents  or  any 
of  them  is  innocent  in  this  matter.  From 
both  points  of  view,  therefore,  the  present 
suit  cannot  be  maintained.  As  a  suit  for 
dissolution  of  partnership  it  was  clearly 
bound  to  fail,  because  of  the  illegal  nature 
of  the  association  If  the  suit  could  be 
regarded  as  one  for  contribution  and  for 
return  of  subscription,  plaintiff's  remedy  is 
long  since  barred  by  limitation.  The  judg- 
ment and  decree  of  the  lower  Appellate 
Court  are,  therefore,  correct  and  the  present 
appeal  is  dismissed.  Appellant  must  bear 
the  respondents*  costs.  Costs  in  the  lower 
Courts  as  already  ordered. 


N.  H. 


Appeal  dismissed. 


UUffAMMAD  ZAKARIA  V.  K18HUN  NARAItf, 


[92 1.  0. 1926J 


ALLAHABAD  HIGH  COURT. 

EXECUTION  FIRST  CIVIL  APPEAL  No.  315 

OF  1925. 

November  17,  1925. 
Present: — Mr.  Justice  Sulaiman  and 

Mr.  Justice  Mukerji. 

Mirza  MUHAMMAD  ZAKARIA— 

JUD&MBNT-DBBTOR — APPELLANT 

versus 

B.  KISHUN  NARAIN-DECUEB-HOLDER 

AND  MUHAMMAD  HAF1Z  AND  OTHERS— 

JUDGMENT-DEBTORS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1008),  ss  2  (2),  tf, 
115>  0  XXI,  r  66— Execution  of  decree—Sale 
proclamation  — Notification  of  incumbrance — Appeal^ 
Whether  lies — Revision 

Undejr  0.  XXI,  r.  00,  C.  P.  0,,  an  Executing  Court 
is-  bound  to  notify  in  the  sale  proclamation  all  incum* 
brances  which  prima  facie  exist  on  the  property  which 
is  ordered  to  be  sold  Where  a  person  claiming  to  be 
a  mortgagee  of  such  property  intimates  his  claim  to 
the  Court  and  the  Court  directs  that  the  claim  should 
be  notified  in  the  sale  proclamation,  the  order  is  not 
open  to  appeal  and  cannot  be  challenged  in  revision, 
[p  644,  coL  2;  p.  645,  col  1 J 

An  order  passed  by  an  Execution  Court  under  O 
XXI,  r  66,  C,  P  CM  prescribing  the  manner  in  which  a 
proclamation  of  sale  should  be  drawn  up  on  appli- 
cation made,  is  not  open  to  appeal  under  the  provisions 
of  0  XLI1I  of  the  Code  [p  644,  col  2  ] 

Section  47,  C  P  C.,  must  be  read  with  s  2  of  the 
Code  and  the  effect  of  reading  both  the  sections 
together  is  not  to  make  every  order  passed  by  the 
Execution  Court  appealable  but  only  such  orders 
appealable  as  determine  the  rights  of  the  parties  to 
the  execution  with  regard  to  all  or  any  of  the  matters 
In  controversy  in  suit,  [p  645,  col  1  ] 

Execution  first  appeal  from  a  decree  of  the 
(Subordinate  Judge,  Agra,  dated  the  6th  of 
July  1925. 

Mr,  G.  N.  Kunzru,  for  the    Appellant. 
Messrs.  S.  K.  Dar  and  N.  P.  Asthana, 
for  the  Respondents. 

JUDGMENT. 

Sulaiman,  J. — This  purports  to  be  an 
execution  first  appeal  from  an  order  dated 
the  6th  of  July  1925  passed  by  the  Execution 
Court.  It  appears  that  a  mortgage-decree 
lor  sale  was  in  execution  and,  a  procla^ 
mation  of  sale  was  prepared  and  issued  in 
the  first  instance  under  O.  XXI,  r.  66. 
The  date  for  the  sale  was  fixed  as  the  9th 
of  July  19*5.  Three  days  before  this  date 
the  respondent  Muhammad  Hafiz  who  was 
till  then  no  party  to  the  execution  proceed- 
ings filed  an  application  in  the  Execution 
Court  praying  that  a  certain  mortgage- 
deed  dated  the  14th  of  September  1910  in 
his  favour  be  notified.  In  his  application 
he  set  forth  the  fact  that  on  a  previous 
occasion  he  had  instituted  a  suit  for  the 
recovery  of  the  principal  amount  due  on 
ibis  deed  but  that  suit  was  ultimately  dis- 


missed. He  then  recited  a  passage  from 
the  judgment  of  Mr.  Justice  Walsh  who 
was  one  of  the  learned  Judges  who  dis- 
posed of  the  appeal  in  the  High  Court,  to 
the  effect  that  'it  by  no  means  follows  from 
the  decision  (dismissing  the  suit)  that 
there  is  no  subsidiary  liability  from  the 
defendant  to  the  plaintiff  to  pay  interest 
so  long  as  the  principal  is  outstanding1, 
and  then  after  referring  to  the  judgment 
passed  by  their  Lordships  of  the  Privy 
Council  referred  to  the  covenant  in  the 
mortgage- deed  under  which  there  was  a 
liability  on  the  mortgagor  to  pay  interest. 
He  then  prayed  'as  ordered  by  the  Hon- 
ble  High  Court  the  condition  mentioned 
above  may  be  notified  at  the  time  of  the 
sale1.  An  objection  was  raised  on  behalf 
of  the  judgment-debtor  but  the  learned 
Subordinate  Judge  without  deciding  as  to 
whether  there  was  or  was  not  any  existing 
liability  ordered  that  'the  notification  asked 
for  be  allowed  subject  to  the  amendment 
that  the  claim  for  principal  under  the  bond 
of  the  14th  of  September  1910  is  no  longer 
recoverable  by  suit1. 

The  report  of  the  amin  does  not  express* 
ly  mention  in  what  language  he  made  the 
notification,  but  it  may  be  assumed  for  the 
purpose  of  this  revision  that  the  notice  was 
given  as  ordered  by  the  learned  Subordi- 
nate Judge. 

The  judgment-debtor  has  appealed  from 
this  order. 

A  preliminary  objection  has  been  taken 
that  no  appeal  lies.  I  am  of  opinion  that 
this  objection  is  well-founded.  Muham* 
mad  Hafi/  was  not  a  party  to  the  execution 
proceeding?.  Neither  the  decree-holder 
nor  the  judgment-debtor  admitted  the  vali- 
dity of  this  prior  mortgage.  The  con- 
testing respondent  intimated  to  the  Court 
that  his  mortgage  should  be  notified.  The 
order  passed  by  the  Court  was  obviously 
under  0  XXI,  r.  66  with  a  view  to  in- 
clude in  the  proclamation  sale  an  incum- 
brance  to  the  property.  The  validity  of  the 
mortgage  was  not  considered  by  the  Court 
or  decided  by  it.  Any  order  passed  by 
the  Court  under  r.  66  directing  the  way 
in  which  a  proclamation  of  sale  should  be 
drawn  up  on  application-  made,  is  not -made 
appealable  under  0.  XLIII  of  the  Code) 
Prima  /acte,  therefore,  no  appeal  would  lie, 
The  learned  Vakil  for  the  appellant,  how- 
ever, has  urged  before  us  that  inasmuch,  asr 
this  order  was*  passed  by  an  Execution 
Court  and  related  to  the  execution  of  « 


MUHAMMAD  ZAKRIA  V,  1U8HUN  NTARAIN. 


[W  i,  0.  1926J 

decree  it  is  appealable  within  the  mean- 
ing of  s  47.  Section  47  must  be  read 
with  s.  2  and  the  effect  of  reading  both 
the  sections  is  not  to  make  every  order 
passed  by  the  Execution  Court  appealable 
but  only  such  orders  appealable  as  deter- 
mine the  rights  of  the  parties  to  the  execu- 
tion with  regard  to  all  or  any  of  the  matters 
in  controversy  in  suit.  By  this  order 
neither  the  rights  of  the  judgment-debtor 
nor  of  the  decree-holder  were  determined 
by  the  Execution  Court.  No  appeal,  there- 
fore, lies. 

The  learned  Vakil  for  the  appellant  has 
asked  us  to  treat  this  appeal  as  an  appli- 
cation in  revision  and  interfere  with  the 
order. 

Two  objections  have  been  raised.  The 
first  is  that  the  Court  below  should  not 
have  entertained  an  application  from  a 
person  who  was  no  'party  to  the  execution 
proceedings,  and  the  second  is  that  it  was 
entertained  at  such  a  late  stage  as  to  pre- 
judice the  judgment-debtor.  The  appli- 
cation of  the  contesting  respondent  was 
made  by  way  of  an  intimation  to  the  Court 
and  the  Court  was  under  0  XXI,  r  66 
bound  to  show  all  incumbrances  which 
prima  faice  existed  on  the  property  which 
was  ordered  to  be  sold.  It  is,  therefore, 
impossible  to  hold  that  the  Court  had  no 
jurisdiction  to  take  note  of  an  alleged 
claim.  If  the  notification  merely  informed 
the  auction-purchasers  that  there  was  a 
claim  being  put  forward  on  behalf  of  Mu- 
Jiammad  Hafiz  on  the  basis  of  this  old 
mortgage,  which  claim,  however,  was  not 
admitted  by  the  decree- holder  or  the  judg- 
ment-debtor then  there  was  no  harm  in 
•the  notification,  On  the  other  hand  if  the 
notification  amounted  to  any  mis-statement 
or  mis  representation,  that  may  be  a  good 
ground  for  setting  aside  the  sale,  under 
O.  XXIi  r.  90,  as  it  would  then  amount 
to  an  irregularity. 

Similarly  the  fact  that  this  amendment 
was  made  only  a  few  days  before  the  sale 
may  be  a  ground  for  setting  aside  the  sale 
if  the  judgment-debtor  succeeds  in  estab- 
lishing that  substantial  injury  has  been 
caused  in  consequence  of  the  lateness  of 
the  order.  That  too  is  a  matter  which 
can  be  disposed  of  in  the  proceedings 
under  O.  XXI,  r.  90. 

It  is  to  be  noted  that  pending  this  ap- 
peal the  sale  has  actually  taken  place  and 
any  directions  now  made  with  regard  to 
-ths  notification  clear  would  be  al- 


645 


together  useless  and  futile.  I  am,  there* 
fore,  of  opinion  that  it  is  impossible  to 
interfere  in  revision  at  this  stage. 

I  would,  therefore,  dismiss  this  appeal. 

Mukerji,  J.—  I  entirely  agree  that  no 
appeal  lies  and  that  in  the  circumstances 
of  this  case  I  am  not  prepared  to  entertain 
the  appeal  as  a  revision  from  the  order  of 
the  learned  Subordinate  Judge  dated  the 
6th  of  July  1925. 

Briefly,  the  matter  stands  thus.  Kishun 
Narain  held  a  mortgage-decree  against 
Zakaria  and  others.  In  execution  of  the 
decree  a  sale  notification  was  issued  fixing 
the  9th  of  July  1925  for  sale  •  On  the 
25th  of  May  1925,  certain  persons  Muham- 
mad Hafiz  and  others,  came  in  with  a  pe- 
tition that  certain  terms  contained  in  a 
prior  mortgage  held  by  them  should  be 
notified.  The  decree-holder  and  the  judg- 
ment-debtor both  objected  but  the  learned 
Judge  allowed  the  application  subject  to 
a  certain  modification  It  appears  that 
Muhammad  Hafiz  and  others  held  a  prior 
mortgage  dated  the  14th  of  September  1910 
over  some  at  least  of  the  properties  which 
were  going  to  be  sold  at  the  instance  of 
Kishun  Narain.  They  had  obtained  a  de- 
cree for  interest  which  had  accrued  under 
the  mortgage.  Subsequently  they  brought 
a  suit  for  the  recovery  of  the  principal 
amount  and  the  interest  which  subse- 
quently accrued  This  second  suit  of  theirs 
failed  in  this  Court  and  also  in  the  Privy 
Council  on  the  ground  that  0.  II,  r.  2  of 
the  C.  P.  C.  barred  the  suit.  Certain  ob- 
servations had  been  made  by  one  of  the 
learned  Judges  who  heard  the  appeal  in 
this  Court  indicating  that  Muhammad 
Hafiz  and  others  might  still  have  some 
remedy.  The  Privy  Council  expressed  no 
opinion.  Muhammad  Hafiz  and  others, 
however,  still  entertain  a  hope  to  recover 
something  on  foot  of  the  mortgage  and 
they  accordingly  made  their  prayer.  The 
learned  Subordinate  Judge,  after  hearing 
the  parties,  made  the  order  as  already 
indicated 

Now  the  question  is  whether  an  appeal 
is  entertainable.  As  pointed  out  by  my 
learned  brother,  it  is  not  every  question 
that  arises  between  a  decree-holder  and  a 
judgment-debtor  that  is  appealable.  In 
order  that  it  may  be  appealable,  it  must 
be  a  decree  and  must  come  in  s.  2  of 
the  C  P.  C.  Be  that,  however,  as  it  may 
in  this  particular  case,  the  decree-holder 
and  the  judgment-debtor  were  atone  in 


SHANKAR  V   PANDBRANG, 


640 

Attempting  to  defeat  the  claim  of  Muham- 
mad Hafiz  and  others.  It  is  clear,  there- 
fore that,  by  no  stretch  of  imagination,  can 
the  case  be  brought  within  the  purview  of 
e.  2  and  s.  47  of  the  C.  P.  0.  No  appeal, 
therefore,  lies. 

Coming  to  the  question  of  revision  I  fail 
to  see  what  irregularity  has  the  Judge  com- 
mitted. The  Judge  was  bound,  in  the  inter- 
est of  intending  purchasers,  to  give  them 
as  much  information  as  possible  about  the 
property  which  he  was  going  to  sell.  If 
Muhammad  Hafiz  and  others  had  a  bona 
fide  claim,  it  did  not  matter  whether  it 
was  going  to  succeed  or  going  to  fail. 
-The  Judge  could  not  enter  into  that  intri- 
cate question.  He  was,  in  my  opinion, 
bound  to  tell  the  intending  purchasers,  that 
there  was  such  a  claim  and  that  they  might 
beware  of  it.  The  order,  therefore,  was 
perfectly  correct  and  it  is  not  open  to  ques- 
tion by  way  of  revision. 

It  has  been  iirged  upon  ue  that  the  order 
was  passed  very  late  and  that  it  was  likely 
,to  frighten  the  intending  purchasers.  As 
may  be  guessed,  the  sale  proclamation  was 
issued  long  before  the  6th  of  July,  ior  the 
9th  of  July  had  already  been  fixed  for  sale. 
If  it  be  a  fact  that  owing  to  the  late  noti- 
fication of  the  claim,  any  intending  pur- 
chaser has  been  frightened,  not  knowing 
clearly  what  was  the  matter,  it  would  be  a 
matter  for  the  Subordinate  Judge  to  en- 
quire in  a  proceeding,  if  any,  has  been 
taken,  under  O.  XXI,  r.  90  of  the  C.  P. 
0.  That  has  nothing  to  ^do  with  the  case 
before  us,  at  present. 

I  agree,  therefore,  that  the  appeal  should 
be  dismissed  and  there  is  no  good  ground 
for  treating  the  appeal  as  a  petition  of  re- 
vision. 

By  the  Court.— The  appeal  is  digmies- 
ed  with  costs.  We  allow  Rs.  50  as  Coun- 
sel's fees  for  the  respondents  Muhammad 
Hafiz  and  others. 

z.  K.  Appeal  dismissed. 


(92  I.  0.  1926] 

NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

FIRST  CIVIL  APPEAL  No.  10  OF  1924. 

November  24,  1925. 
Present:  -  Mr  Findlay,  Officiating  J.  C., 

and  Mr.  Prideaux,  A  J.  C. 
SHANKAR  AND  ANOTHER— DEFENDANTS— • 

APPELLANTS 

versus 

PANDURANG  AND  OTHERS— PLAINTIFFS— 
RESPONDENT  s 

Hindu  Law- Widow,  alienation  by— Suit  to 
challenge  alienation  brought  after  lapse  of  many  year?, 
effect  of— Necessity— Bonn  Mo  enquiry 

In  a  suit  by  the  icversioneis  of  a  deceased  Hindu 
to  challenge  an  alienation  made  by  the  widow  of  the 
deceased,  brought  after  the  lapse  of  many  years  from 
the  date  of  the  alienation,  it  is  incumbent  on  the 
Couit,  in  weighing  the  evidence  on  either  side,  to 
lemombei  the  difficulty  under  which  the  respective 
parties  laboui ,  particularly  as  legardb  the  ascertain- 
ment and  production  of  evidence  on  the  matters  dealt 
with  in  the  case,  fp  648,  col  2  ]  . 

If  an  alienee  fiom  a  Hindu  widow  before  embarking 
on  the  transaction  has  made  reasonable  and    bonajide 
enquiry  and  has  satisfied    himself  to    the  best  of   his 
knowledge  and  belief  that  legal  necessity  exists,    thp 
real  existence  of  such  legal  necessity   m  point    of  fac,t 
is  not  a  condition  precedent  to  his  success  in   a   suit 
brought  by  the  reversionera  of  the    widow  s  deceased 
husband  to  challenge  the  alienation     [p  649,  col   1 J    ^ 
Appeal  against  the  decision  of  the  Addi- 
tional District  Judge,  Nagpur,  dated  the  iOth 
October  1923,  in  Civil  Appeal  No.  20  of  1923. 
Sir  Dr.  II.  S  Gour  and  Mr.  Bobde,  for  the 
Appellants 
Messrs.  M.  Gupta  and  V.  D.  Kale,  for  the 

Respondents  . 

JUDGMENT.— The  twelve  plaintiffs- 
respondents  filed  the  present  suit  in  the 
Court  of  the  Additional  District  Judge, 
Nagpur,  under  the  following  circumstances. 
They  claimed  to  be  the  nearest  reversioners 
of  one  Sakharam  Kolte  who  died  in  1873. 
Sakharam  left  no  issue,  his  widow  Radhabai 
alone  surviving  him.  She  inherited  from 
her  husband  a  16  annas  share  m  Mauzas 
Deoli  and  Khapri  (Nagpur).  On  30th  March 
1892,  she  sold  8-annas  share  in  each  of 
these  villages  to  the  defendant-appellant 
No.  Fs  elder  brother.  A  fortnight  later, 
she  mortgaged  the  remaining  8-annas  share 
in  both  the  villages  for  Rs.  700  to  the  same 
vendee,  and  eventually  sold  him  the  latter 
shares  also  on  30th  September  1895  for 
Rs.  1,435.  Under  a  private  arrangement  1- 
anna  share  of  the  second  8  annas  share 
was  taken  back  by  Radhabai  nearly  a  year 
after  the  sale  of  1895.  The  plaintiffs  thus 
sued  for  possession  of  15-annas  share  in, 
two  villages  named,  both  now  having  been 
amalgamated  into  a  single  village,  named 
Mauza  Deoli  Peth. 


[92  I.  O.  1926J  SHANKAB  V, 

The  plaintiffs'  allegations  were  that  the 
above  mentioned  sale  and  transaction  were 
executed  without  legal  necessity  and  were 
not  binding  on  them  as  nearest  rever- 
sioners. At  a  partition  between  defendant 
No.  1  and  his  elder  brother,  the  property 
fell  to  the  former's  share;  hence  the  de- 
fendant No.  1  and  his  minor  son  were  sued 
as  being  in  joint  possession  of  the  property. 
Apart  from  preliminary  objections  about 
the  value  of  the  Court-fee  payable  and  the 
like,  the  defendants1  position  was  that  the 
plaintiffs  were  not  the  nearest  reversioners. 
They  further  pleaded  that  both  the  sale  and 
mortgage  of  1892  and  the  sale  of  1895  were 
for  legal  necessity,  and  further  that  the 
sale  and  mortgage  transactions  of  1892 
were  consented  to  by  one  Gopal  Govind 
Kolte  who  represented  himself  then  as  being 
the  nearest  reversioner.  Other  incidental 
pleadings  were  raised  on  behalf  of  the 
defendants,  and  these  will  be  referred  to 
later  as  far  as  may  be  necessary. 

On  the  issues  which  arise  on  these  plead- 
ings the  Additional  District  Judge  came  to 
the  following  findings:  — 

(a)  that  the   plaintiffs  were  the    nearest 
reversioners  of  Sakharam ; 

(b)  that  neither  the  sale  or  mortgage  of 
1892  were  for  legal  necessity , 

(c)  that    Gopal  Govind    Kolte  had  con- 
sented to  the  two  transactions  of  1:592,   but 
he  was  not  then    the    nearest    reversioner 
and  his  consent  is  not  binding  on   the  pre- 
sent plaintiffs-respondents ; 

(d)  that  the  sale  of  1895  was  not  for  legal 
necessity ; 

(e)  that  the  plaint  was  properly  stamped; 
(/)  that  tne  plaintiffs  can  only    claim  an 

account  of  the  profits  for  the  period  follow- 
ing the  date  of  the  suit  being  filed ; 

(0)  that  the  defendants  have  not  been 
proved  to  have  made  any  improvements  in 
the  property. 

A  decree  was  accordingly  passed  in 
favour  of  the  plaintiffs  subject  to  their  pay- 
ing Rs.  160-1-4  to  the  defendants  in  respect 
of  the  alleged  losses  incurred  by  defendant 
,  No.  1's  brother  during  three  years  he  had 
managed  the  villages  on  Radhabai'a  behalf. 

The  defendants  have  now  appealed  to 
this  Court.  On  the  appeal  coming  on  for 
hearing,  ground  No.  7  which  was  to  the 
effect  that  the  consent  of  Gopal  Govind  to 
the  sale  and  mortgage  of  1892  was  effectual 
was  not  pressed.  Similarly  also  as  regards 
the  9fch  ground,  in  which  it  was  urged  that, 
it  the  two  sales  and  mortgage  attack,- 


ed  in  this  suit  were  held  not  to  be  binding 
on  the  plaintiffs,  they  were  entitled  to  a 
refund  of  the  amount  of  the  consideration 
paidby  them  in  the  transactions  mention- 
ed. There  thm  in  effect  remain  four  points 
for  consideration  in  this  appeal.  The  four 
positions  taken  upon  on  the  appellants1 
part  may  be  summarised  as  follows: — 

(1)  that  the  plaintiffs  have  failed  to  prove 
that  they  are  the    nearest  reversioners  of 
Sakharam ; 

(2)  that  for  some  30  years  the  plaintiffs 
have  lain  low  and  taken   no  action  in  the 
present  matter;     although    this    may    not 
amount  to  technical  acquiescence  on  their 
part,  a  le^a    rigid  standard  of  proof  should 
be  demanded  of  the  defendants  in  view  of 
the  time  which   elapsed,  and  the  difficulty 
of  now  procuring  apposite  evidence  in  sup- 
port of  their  defence ; 

(3)  that  even  if  legal  necessity  has  not 
been  categorically  proved,   there  has   been 
ample  proof  that  the  defendants1  predeces- 
sors in-title,  before  embarking  on  the  trans- 
actions now  sought   to   be  attacked,   made 
reasonable  bona  fide  enquiry  and  that  this 
was  in  the  circumstances  sufficient , 

(4)  that  there  was  legal  necessity  for  the 
transactions  in  question. 

We  will  deal  first  with  the  allegations 
that  the  plaintiffs  have  failed  to  establish 
that  they  are  Sakharam's  nearest  rever- 
sioners It  has  been  urged  on  behalf  of 
the  appellants  that,  as  the  plaintiff*  claim 
as  collateral  heirs,  it  was  incumbent  on 
them  to  show  who  the  common  ancestor  was, 
c/.,  Kedarnzuth  Doss  v.  Protab  Chunder 
Doss  (t).  In  the  present  case  Keshao  is 
alleged  to  be  the  common  ancestor,  and  it 
has  been  urged  that  the  plaintiffs  have 
failed  to  prove  their  relationship  to  him. 
The  relevant  evidence  in  this  connection 
is  that  of  the  first  four  witnesses  for  the 
plaintiffs,  while  the  connected  genealogical 
table  is  given  in  para.  2  of  the  plaint. 
As  regards  P.  W.  No.  1  Sitaram,  our  atten- 
tion has  been  drawn  to  the  fact  that  he 
described  Sakharam  as  the  son  of  Keshao, 
whereas  he  was  really  his  grandson,  Jagan- 
nath  his  father  having  intervened.  That 
the  witness  erred  in  this  respect  is  per- 
fectly clear  and  ha  very  naturally  mide  the 
consequent  mistake  that  Ciiimnaji  and 
Sikharam  were  real  brothers,  whereas  the 
real  fact  was  that  Ohimnaji  and  Jagannath 
were  real  brothers.  The  witness  appar- 

(l)  6  0.  626,  8  0,  U  K,  238;  3  lad,  Dae,  (N,  B.)  407,    ' 


8HANKAR  T>.  PANDURANG. 


[92  I.  0.  1926J 


ently  erred  also   in  showing  Daniodar  as 
the    descendant    of     Rarnchand.      On  the 
whole  we  are  of  opinion  that  s  >*ps    of  the 
kind  mentioned  made  by  a  man  oi.CO  years, 
who  is  talking  to  events  and  circuustances 
which    for  the   most    part  he  must   have 
learnt  from    his  father    or    others   -when 
he  was     a    very  young  man,    cannot    be 
too  seriously  regarded    when  made  in (  an 
exhaustive  examination  such  as  this  witness 
underwent.    The  main  point  urged   against 
P.  W,  No.  2  Yado  is  that,  being  a  plaintiff, 
his  evidence  should  be  regarded  as  inter- 
ested.   For  our  own  part,  we  consider  that 
his    explanation    of    how    he    knew    that 
Chimnaji  and  Jagannath  were  brothers,  viz., 
from  the  fact  that  his  father  used   to  offer 
pindas  and    oblations   to  them,  makes  his 
evidence  particularly  cogent.     We  cannot 
regard  his  explanation  of  how  he  prepared 
the  genealogical  tree  partly  from    informa- 
tion which  came  to  him  from  Bapurao  and 
partly  from  his  own  knowledge  as   unsatis- 
factory.   It  is  particularly  significant  that 
in  cross-examination    he  definitely  averred 
that  his  father  Balaji  used  to  take  the  names 
of  his  father,  grandfather  and  great-grand- 
father, while  offering    pindas.    As  regards 
P.  W.  No,  3,  Bapurao,  he  says  he  had  pre- 
pared a  genealogical  table  in   about   1903 
or   1904,  as  it  was  required  for  the  purposes 
of  a  suit  he  was  engaged  in,  and  he  gives  a 
plausible    and     satisfactory      explanation 
that  he  had  been  able   to  find   a    helpful 
genealogical  tree  bearing  on  the  matter  in 
question  in  a  revenue  case  relating  to  Mauza 
Takarghat.    We    look  on  the  evidence  of 
this  witness  as    particularly  valuable    and 
we  see  no  reason  why  he   should  be  dis- 
Ijelieved.    The  4th  witness  on  the  point  i« 
Balkrishna  (P  W.  No  4}    who  is  the  priest 
of  the    Kolte  family.    The    father  of  the 
witness  also  before  him  occupied  a  similar 
position.    It  is  suggested  that,  because  the 
witness  says  that  in  Hindu  marriages  only 
the  names  of  three  immediate  ancestors  of 
each  party  to  the  marriage  are  recited,  his 
personal  knowledge  cannot  carry  the  genea- 
Ibgical  tree  back  to  Kesha.    But  if  his  evi- 
dence be  read  as  a  whole,  it  is  clear  that  he 
hfes  had    an   intimate    knowledge    of    the 
greater  number  of  persons  in   the    family 
tree  for  many  years  back.    When   the  evi- 
dence of  these  four  witnesses  is  read  as   a 
Whole,  it  seems  to  us  that  the  lower    Court, 
for  the  reasons  given  by  it,  was    amply 
justified  in  holding  that  the  plaintiffs  have 
established  that  they  are  the  nearest  rever- 


sioners  of  Sakharam.  It  is  notable  that 
the  appellants  have  not  only  not  given  any 
rebutting  evidence,  but  they  have  not 
offered  even  any  definite  allegation  as  to 
any  other  particular  person  being  the 
nearest  revereioner  rather  than  the  plaintiffs, 
So  far  as  this  ground  of  appeal  is  concern- 
ed, therefore,  we  see  no  reason  for  inter* 
ference. 

We  now  pass  to  the  next  point  which  has 
been  urged  on  behalf  of  the  appellants,  viz., 
that  although  there  may  be  no  question  of 
technical  acquiescence  in  the  present  suit, 
the  fact  that  the  plaintiffs  have  delayed  so 
long  in  filing  it  should  have    considerable 
weight  attached  to  it  in  weighing  the  evi- 
dence   on    record  because    of    the    great 
difficulties  the  defendants  now  labour  under 
in  proving  legal   necessity    and    the  like. 
Their  Lordships  of  the  Privy    Council  in 
Hunoomanpersaud     Panday      v.      Babooee 
Munraj  Koonweree  (2)  alluded  to  a  similar 
matter.    It  seems  to  us,  however,   that  this 
consideration  cuts    both  ways.    Just  as  it 
may  be  comparatively  difficult  for  the   de- 
fendants now    to  procure  convincing  and 
specific  evidence  on  a  question  like  that  of 
legal  necessity    or  enquiry,     so    also    the 
plaintiffs  labour  under  a  similar  difficulty. 
We  are  quite  willing,  however,    to  admit 
that,  in  a  case  like  the  present,  in  weighing 
the  evidence  on  either  side,  it  is  incumbent 
on    us  to  remember    the    difficulty  under 
which  the  respective  parties    labour  par- 
ticularly as  regards  ascertainment  and  pro- 
duction  of  evidence  on   the  matters  dealt 
with  in  the  case.    Beyond  this,  we  do  not 
find  it  possible  to  go.    There  is  admittedly 
no  question  of  estoppel  in  the  present  case 
nor  even  of  technical  acquiescence.    The 
plaintiffs  were  in  the  line  of  reversionere, 
but  had  only  a  spes  successionis.    Musam- 
mat  Radhabai  died  on  2  1st   October  1920 
and   the  present  suit  was  filed  within  some 
15  months  of  that  date.    It  was  clearly  not 
incumbent  on  them  to  file  the  suit  during 
Musammat  Radhabai's  lifetime  and,  from 
their  point  of  view,  there  might    have  been 
great  difficulties     and    disadvantages    in 
doing  so. 

We  pass,  therefore,  to  the  next  position 
taken  up  on  appeal,  uz,  that  it  would  be 
sufficient  for  the  defendants  to  sh^w  that 
they  have  made  reasonable  enquiries  as  to 
the  existence  df  the  legal  necessity,  and 
that  if  this  were  established  that  they  were 


M.  L  A  393,  18  W  R  Sin:  Sevestre  253n;  2  Suth, 
P,  0,  J.  29,  1  g*r,  p.  0.  J,  552;  19  E,  H.  147  (P.  0,);       ' 


1.  0.  1926J  SHANKAR  v 

entitled  to  be  absolved,  even  if,  it  should 
afterwards  be  ascertained  that  the  result  of 
the  reasonable  and  bona  fide  enquiry  was  a 
mistaken^one.  We  accept  the  principle  that 
if  a  creditor,  before  embarking  on  transac- 
tions such  as  we  are  concerned  with  here, 
has  made  reasonable  and  bona  fide  enquiry 
and  has  satisfied  himself  to  the'  best  of  his 
knowledge  and  belief  that  legal  necessity 
exists,  the  real  existence  of  such  legal 
necessity  in  point  of  fact  is  not  a  condition 
precedent  to  the  success  of  the  defendants. 
That  principle  is  clearly  laid  down  in  s.  38 
of  the  Transfer  of  Property  Act  and  the 
illustration  thereto. 

We  proceed,  therefore,  to    discuss  whe- 
ther there  has  been  proof  of  such  reasonable 
bona  fide  and  thorough   enquiry  as  the  cir- 
cumstances of  this  case   would   have  de- 
manded of  D  W.  No  7   Sir  Gangadar  Rao 
Chitnavis     We  may  say  at  once  that  the 
high  position  and  attainments  of  this  gentle- 
man  as  revealed   in  his    evidence    would 
not  make  us  regard  the  evidence  as    any- 
thing but    unimpeachable     it   is  happily, 
however,  not  necessary    for  us  to  have  to 
offer  any  criticism  of  his   evidence  in  this 
connection      Not  unnaturally  a  gentleman 
like  D.  W  No   7   cannot  remember  all  the 
details  connected     with  the    transactions. 
He  says    when    he    was      approached    by 
Radhabai  and  others, he  had  enquiries  made 
by  some    of    three    persons,    i\z ,    Annaji 
-Chitnavis,   Vasudeopant  both  his  seivants 
and   one  Narayanrao  Vele,  a  head  clerk  of 
Deosthan  estate  which  was  in  his  charge, 
According  to  the  witness  the  enquiry  was 
to  be  on  three  points,    the    condition  of 
the   villages,   their  price  and   the  necessity 
of  selling  the  property     As    regards  the 
last  point  it   was  reported  to  the    witness 
that  the  sale  had  to  take  place  to  satisfy  a 
debt  due  to  Hajarin.    As  regards  the    latter 
purchase  the   witness  says  that  Radhabai 
had  herself  told  him  that  she  was  indebted 
to  Kukday  and  others  and  had  also  incur- 
red losses  in  managing  the  villages.    In 
cross-examination,    however,    the    witness 
candidly  admitted  that  he  could  give  little 
or  no  details  of  the  result  of  the  enquiries 
made.    He    could  not     say   whether    any 
written  report  was  submitted  or  not,  and  he 
seems  to  have  no  correct  recollection  of  the 
amount  of  debt  in  which  Radhabai  was  in- 
volved.   The    evidence    of   D.  W.     No.   8 
(Harba)  the  kamdarof  the  last  witness  does 
ndt  seem  to  -us  to   carry    the  question  of 
fla<juiry  much  further.    According  to  him 


PANJD0RANG,  649 

Anna  Sahib  had  made  notes  of  the  enquiries, 
but    none  such  were  produced.    Indeed  the 
evidence  of  this  witness  strongly  suggests 
that  at  that  time  he  was  a  mere  underling 
and  cannot  have  taken  a  leading   part  in 
the  enquiry     Taking  the  evidence  of  these 
witnesses    as  a  whole,  there  is  an  irresisti- 
ble conclusion  we  are  led  to,  viz ,  that  only 
a  cursory  and  superficial  enquiry  was  made 
both    as  to  Radhabai's  debt  and  the  neces- 
sity for  alienation  and  also  as  to  who  the 
nearest    reversionere  were.    The  enquiring 
parties  seem  to  have  stumbled  early  upon 
Gopal  Qovind  Kolte,  and  to  have  assumed 
that  he  was  the  nearest  reversioner,  where- 
as we  feel  convinced  that  a  more  thorough 
and  searching  enquiry  would  have  shown 
that   there  were  others  still    nearer.    We 
may  point  also  an  all  important  point  in  the 
evidence  of  D.  W.  No.  7  Sir  Qangadhar 
Rao  Chitnavis     He   seems  to    have   been 
under  the  impression  that  the  debt  due   to 
Hajarin     dated     from     her      (Radhabai's) 
husband's  time     That   was    not  so.    The 
mortgage-deed    (Ex.    1  D-3)     shows      that 
the    debt    was     'a     fresh    one      and      D. 
W.    No.    1  (Bajirao)  so  far  confirms  this 
view.      This    only     goes     to     show     ths 
superficiality    of  the    enquiries  made  both 
on  the    question    of    legal   necessity    and 
as    to  who  the   nearest  reveraioners  were. 
Our  own  belief  is  that  the  central  point  of 
the  enquiry  was  as  to  the  value  of  the  villages 
and  the  likelihood  of  the  transactions  being 
a  profitable  one  or  not  from   the  point  of 
view    of  the  future  creditor,  and  we    are 
convinced  that  the  lower  Court's    finding 
in   this  connection  is  a  correct  one.    We  do 
not  think  there  is  any    proof  whatever  of 
such  reasonable  and   bona  fide   enquiry  as 
would  discharge  the  burden  of  proof  which 
rested  on  the  defendants  in  this  connection. 
We  now  pass  to  the  next  point  for  deci- 
sion in  this  appeal,  viz.,  as  to  whether  there 
was  actual  legal  necessity  for  the  transac- 
tions in  suit  or  not.    It  has  been  urged  in 
this    connection  on  behalf  of  the  appellants 
that  there  are  indications  on   record  £hat 
Sakharam  was    not    too  well   off   himself. 
We  have  been    referred  to  the  fact  that  D. 
W.  No    2  Madho  says  that  Sakharam  work- 
ed as   Dewanji  of    Rajaram    thekadar    of 
Wardgaon     Again  D.  W.  No.  4  Balaji  says 
that  Sakharam,  while  he  was  on  Rajaram's 
properties,  acquired  village  Deori  and  had 
asked  this  witness  to    lend  him  Rs.  500  or 
Rs.  600  for  the  said   purchase.    We  think 
pieces  of  evidence  like  this  are  not  seces- 


SHANKAR  V.  PANDURANG, 


earily  indicative  of  a  theory  that  Sakharam 
was  badly  off.  On  the  contrary,  his  taking 
up  work  as  Dewanji  and  his  acquiring 
Mouza  Deon  would  be  equally  consistent 
with  the  theory  that  he  was  a  pushing 
business-man  anxious  to  make  money  in  as 
many  ways  as  he  could.  It  has  been  suggest- 
ed that  the  villages  in  suit  were  petty 
ones  and  were  a  losing  concern ;  that  they 
have  proved  a  losing  concern  since  Sakha- 
ram's  death  is  sufficiently  obvious,  But  we 
are  far  from  being  convinced  that  this  was 
the  case  in  Sakharam's  lifetime.  It  has 
been  suggested  that  Ex.  P-5  the  Jamabandi 
for  Mouza  Khapri  for  1893  only  shows  some 
21  acres  of  sir  and  khudkaslit,  but  if  Ex.  P-7 
be  examined,  it  would  be  seen  that  the  actual 
area  of  sir  and  khudkasht  was  very  much 
more.  A  glance  at  the  totals  given  in  Ex.  1- 
D-l,  the  sale-deed,  of  30th  March  1892 
leads  to  the  same  conclusion.  There  are 
other  indications  that  Musammat  Radhabai, 
after  her  husband's  death,  was  comfortably 
off  at  first  for  sometime.  The  evidence  of 
P.  W.  No.  6  Lahanu  suggests  that  he  used 
to  lend  money  and  had  acquired  two  fields 
in  another  village  (Takalghat).  P.  W.  No.  7 
Sitaram's  evidence  is  to  the  same  effect,  viz., 
that  Sakharam  had  a  grain  pit  and  was  ap- 
parently fairly  well-to-do.  Even,  therefore, 
if  the  property  in  suit  were  not  very  large 
or  a  profitable  one,  the  indications  all  are 
that  during  Sakharam's  lifetime,  things 
went  well  and  probably  continued  to  go 
well  for  some  little  time  after  his  death.  In 
this  connection,  it  is  pertinent  to  observe 
that,  even  if  the  property  did  not  yield  a 
large  income,  Musammat  Radhabai  had 
only  herself  to  maintain.  She  seems  there- 
after to  have  brought  in  both  her  brothers 
to  manage  the  property — a  somewhat  extra- 
vagant measure — it  would  appear  in  view  of 
its  comparative  smallness.  It  is  not  paitof 
our  business  to  trace  out  the  precise  reason 
why  Radhabai  went  down  into  the  morass 
of  financial  difficulties.  But  apart  from 
the  very  common  circumstances  that  a  pro- 
perty like  the  present  deteriorates  when, 
under  the  circumstance  prevailing  in  this 
country  it  is  managed  by  a  woman,  we 
opine  to  the  view  that  one  specific  cause 
for  embarrassment  was  that  she  incurred  a 
lot  of  expense  in  connection  with  the  marri- 
age of  her  brother.  This  was  needless,  and 
was  utterly  an  unjustifiable  expense.  The 
sale  dee!  (Ex.  1-D-l)  of  1892  contains  no 
recital  whatever  as  to  for  what  the  con- 
of  Rs,  1,200  w^s  required  for. 


[92  I.  0.  1926] 

We  have  already  said  that  there  is  no 
p roof  that  Sakharam  left  any  debt  at  his 
oeath  in  1873.  It  is  in  1888  for  the  first  time 
that  we  find  Musammat  Radhabai  executing 
the  possessory  mortgage-deed  in  favour  of 
Musammat  Krishnabai  for  Rs  900  cash 
borrowed.  There  is  not  a  bit  of  evidence  to 
show  that  this  amount  was  borrowed  for 
legal  necessity,  and  we  may  remark  here 
incidentally  that  we  would  have  expected 
Sir  Gangadhar  Rao  Chitnavis  or  his  agents 
to  have  carefully  examined  this  transaction 
and  the  necessity  therefor.  On  the  con- 
trary they  do  not  seem  even  to  have  de- 
manded a  sight  of  the  mortgage-deed  of 
1888.  So  far  as  the  mortgage-deed  of  1888 
is  concerned,  there  is  a  total  absence  of 
evidence  as  to  the  purpose  for  which  the 
money  was  borrowed,  or  to  which  it  wa$ 
applied.  The  evidence  of  D,  W.  No  2 
Madhp  far  from  proving  legal  necessity 
in  this  connection,  rather  goes  to  show 
that  Sakharam  died  well  off.  For  15  years 
after  Sakharam'n  death  there  is  no  evidence 
that  the  widow  was  involved  in  financial 
difficulties,  but  the  indications  all  are  that 
owing  to  unwise  or  unscrupulous  manage- 
ment as  well  as  to  extravagance  she  gradu- 
ally went  down  the  hill,  and  the  J888  mort- 
gage-deed marks  the  first  prominent  mile 
stone  in  this  connection.  We  find  ourselves 
in  complete  agreement  with  the  finding  of 
the  Additional  District  Judge  that  no  legal 
necessity  for  the  sale  deed  of  1892  has  been 
made  out. 

There  is  another  aspect  of  this  matter 
which  demands  consideration.  As  soon  as 
the  sale-deed  of  1892  had  been  executed,  the 
vendee  paid  up  the  Rs.  1,450  due  on  Krish- 
nabai's  mortgage-deed  of  1888  Even  had 
this  debt  been  regarded  as  falling  within 
the  category  of  legal  necessity,  is  it 
possible  for  one  moment  to  regard  the 
method  of  satisfying  the  debt  as  a  prudent 
one  on  the  part  of  a  widow  like  Radhabai  ? 
If  she  had  sold  a  10  annas  share  out  and 
out,  it  would  have  been  possible  to  satisfy 
the  debt  wholly.  Instead  of  this  what  was 
done  was  that  on  30th  March  1892  a  8  annas 
share  was  sold  out  and  out,  Only  a  fortnight 
later,  the  remainder  of  the  property  was  mort- 
gaged, and  three  years  later  as  a  result  of 
this  mortgage  Radhabai  lost  everything 
except  the  1-anna  share  already  referred 
to  which  was  returned  to  her.  Mja.i while 
it  is  significant  to  observe  that  the  defend- 
ants' predecessors-in-title  for  3  yeara  after 
managed  the  property,  la  those  ctr* 


LAL  OHAND  V    HUNS  KUMAR. 


[92  1  0.    1926J 

cumstances,  we  find  it  difficult  to  imagine 
that  the  sale  of  30th  March  1892  and  the 
mortgage  of  13th  April  1892  only  afornight 
later  were  isolated  transactions  We  do 
not  regard  this  case  as  one  of  a  prudent  and 
'careful  woman  who  mortgaged  only  a  half 
f^rst  and  was  driven  by  force  of  circum- 
stances to  encumber  the  balance  a  few  days 
later  and  eventually  to  sell  the  balance 

The  s^le-deed  of  18^5  was  made  up  of  the 
following  items  : — • 

Rupees  1,055    7    9    due  on  the  1892  mort- 


651 


180    0    0    cash  of  Vishnu  Daji , 
„        160    1    4    lost  in    managing    the 
villages    dining  three 
years;  and 
M          40    0    0    expenses  of  the  stamp 

and  registration,  etc. 

The  great  part  of  it  went  to  the  old  mort- 
gage and,  as  we  have  already  seen,  legal 
necessity  has  not  been  established  with 
reference  thereof.  No  copy  of  the  decree 
of  \  ishnu  Daji  has  been  filed,  and  it  is 
impossible  to  say  what  its  nature  was. 
From  this  point  of  view,  therefore,  we  areun- 
able  to  distuib  the  findings  arrived  at  by  the 
lower  Court  on  thequestmof  legal  necessity. 
The  weight  of  the  evidence  and  all  the  prob- 
abilities of  the  case  go  to  show  that  Musam- 
wrtiRadhabai  sometime  after  her  husband's 
death  either  mismanaged  the  estate  or 
allowed  it  to  be  mismanaged  by  others  and 
probably  also  fell  into  extravagant  ways  and 
incurred  expenditure  which  was  in  the 
circumstances  not  permissible.  It  is  equally 
clear  that  the  defendants'  predecessors- in- 
title  made  no  proper  enquiry  into  the  ex- 
istence of  legal  necessity  for  the  transac- 
tions entered  into  with  Musammat  Radha- 
bai  The  plaintiffs  are,  in  our  opinion, 
entitled  to  succeed  in  the  suit  and  the  lower 
Court's  judgment  is  confirmed  in  this  con- 
nection The  appeal  accordingly  fails  and 
is  dismissed  with  costs.  Appellants  must 
bear  respondents1  costs. 

A  cross-objection  has  been  filed  by  the 
reapondents  to  the  effect  that  they  should 
not  have  been  ordered  to  pay,  as  a  condi- 
tion precedent  to  their  acquiring  possession 
of  the  subject  in  suit,  Rs  160  1-4  said  to 
have  been  lost  during  Sir  Gangadhar  Rao 
Chitnavis's  management  of  the  village  from 
1892  to  1895.  We  are  not  satisfied  that 
there  has  been  any  sufficient  proof  with 
regard  to  this  item.  Apparently  for  a  good 
many  years  after  Sakharam's  death,  the 


widow  and  her  brothers  between  them  man- 
aged to  carry  on  the  management  of  the 
villages  with  comparative  success.  From 
the  account  entries  we  have  no  sufficient 
details  regarding  this  alleged  item  of  loss 
and  it  must  be  remembered  that  the  village 
was  managed,  as  it  was,  apparently  as  a 
result  of  a  private  understanding.  The 
mortgage  of  1892  was  not  a  possessory  one. 
In  those  circumstances  we  do  not  think 
the  defendants  are  entitled  to  a  refund  of 
Rs.  160-1-4  in  question  and  the  following 
phrase  will  be  deleted  from  the  judgment 
of  the  lower  Court  — 

"  The  possession  of  7-annas  share  in  Mouza 
Deoli  is  subject  to  payment  by  the  plaint- 
iffs *to  the  defendants  of  Rs.  160-1-4  with 
interest  thereon  at  Rs.  12  per  cent,  per 
annum  from  the  date  of  suit  till  pay- 
ment " 

The  cross- objection  filed  by  the  respond- 
ents will  succeed  m  appeal,  and  the  appel- 
lants will  also  bear  the  costs  of  the  re- 
spondents1 cross-objection 

z  K  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No   95  OF  1921. 

November  25,  1925. 
Present: — Mi    Justice  Martmeau 

and    Mr.  Justice  Fforde 
Lala  LAL  CHAND  AND  OTHERS- 
DEFENDANTS — APPELLANTS 

versus 
HANS  KUMAR  AND  OTHERS — PLAINTIFF* 

AND  DEFENDANTS— RESPONDENT* 
Pre-emption — Custom-  Instances    in     neighbouring 
mohallas,    value    o/~~ Mohalla     Serai    Mangal  Sain, 
Jhelum  City 

Instances  of  the  exercise  of  the  right  of  pre-emption 
in  neighbouring  mohallas  are  not  sufficient  to  prove 
that  the  custom  of  pie-emption  exists  m  the  locality 
m  which  the  property  m  suit  is  situate  [p  652,  col  2] 
The  custom  of  pie-emption  does  not  exist  generally 
throughout  the  town  of  Jhelum,  nor  does  it  exist  in 
the  block  known  as  Mohalla  Serai  Mangal  Sam  which 
is  a  pait  of  the  old  Ohakla  Mohalla  [p  653,  col  1 J 

First  appeal  from  the  decree  of  the  Senior 
Sub- Judge,  Jhelum,  dated  the  25th  October 
1920. 

Dr  Nand  Lai,  and  Messrs.  A.  R  Kapur 
and  fJemi  J,  Rustomji,  for  the  Appellants. 

Mr  Mukand  Lai  Pun  and  Lala  Amar 
Nath  Chona,  for  the  Respondents. 

JUDGMENT.-The  plaintiffs  in  this 
case  sued  for  possession,  by  right  oJf  pre- 


652 


I*AL  OHAND  fc   HUNS  RUMAfi. 


eruption,  of  a  house  in  the  town  of  Jhehim 
which  was  sold  in  1919  by  defendant  No.  1 
and  the  husband  of  defendant  No,  2  to 
defendant  No.  3  and  the  predecessor-in-title 
of  defendants  Nos.  4  to  7.  They  claim  pre- 
emption by  virtue  of  their  ownership  of 
a  serai  called  Serai  Mangal  Sain^  which  is 
contiguous  to  the  house  sold  and  allege 
that  the  custom  of  pre-emption  prevails 
throughout  the  town.  The  defendants  con- 
tend that  there  is  a  sub-division  of  the  town 
called  Mohalla  Serai  Mangal  Sain  in  which 
the  house  in  suit  is  situate  and  they  deny  that 
the  custom  of  pre-emption  exists  therein  or 
in  any  part  of  the  town.  The  Subordinate 
Judge  has  found  that  the  town  is  not  sub- 
divided and  that  the  custom  of  pre-emption 
exists  generally  in  the  town,  including  the 
locality  in  which  the  house  is  situate  and 
he  lias  accordingly  given  the  plaintiffs  a 
decree.  The  vendees  have  appealed  and 
there  are  cross-objections  by  the  plaintiffs 
in  regard  to  the  amount  of  the  Pleader's  fee 
awarded  to  them. 

There  is  no  force  in  an  argument  which  has 
been  put  forward  as  to  the  plaint  not  hav-' 
ing  been  properly  presented.  The  import- 
ant Question  is  whether  the  custom  of  pre- 
emption has  been  proved  to  exist  in  the 
locality  in  which  the  house  is  situate. 

We  cannot  accept  the  statements  of  some 
of  the  plaintiffs1  witnesses  as  to  the  house  in 
suit,  being  in  the  Bagh  Mohalla.  This 
house,  the  plaintiffs1  serai,  and  a  few  other 
houses  and  shops  form  a  block  which  is 
bounded  on  all  sides  by  roads.  There  is  a 
road  between  this  block  and  the  Bagh 
Mohalla  on  the  north,  and  we  think  that  the 
learned  Subordinate  Judge  is  right  in  re- 
garding the  serai  block  as  a  portion  sepa- 
rate from  the  B&gh  Mohalla.  The  evidence 
of  the  special  Kanungo  shows  that  it  is  a 
part,  not  of  the  Bagh  Mohalla,  but  of  an  area 
which  w&s  known  in  1860  as  the  Chakla  Mo- 
halla.  That  area  is  no  longer  known  as  a  sepa- 
rate mohalla,  but  now  comprises,  in  addition 
to  Serai  Mangal  Sain,  several  bbzars  with  dis- 
tinctive names,  and  according  to  the  def  end- 
arite1  witnesses  the  serai  block  alone  is 
'now  called  the  Chakla  Mohalla.  The  serai 
block  appears  to  be  too  small  an  area  to 
constitute  asub-divisionof  the  town,  although 
it  is  not  really  material  for  the  decision  of 
the  case  whether  it  is  a  sub-division  or 
not,  Jhelunl  is,  as  the  learned  Subordi- 
nate Judge  has  observed,  a  town  of 
growth  There  has  not  been  a 
iastwc*  pf  &e  exercise  of  the  right 


[92  I.  0.  1926] 

of  pre-ejuption  in  the  particular  block  iu 
uhich  Vhe  house  is  situate,  nor  is  there 
even  ar),y  evidence  to  show  that  the  custom 
existed  in  any  part  of  the  old  Chakla 
Mohalla  in  which  this  block  was  included. 
The  plaintiffs  must,  therefore,  in  order  to 
succeed,  prove  that  the  custom  prevails 
generally  throughout  the  town,  for  instances 
which  have  been  adduced  of  the  exeicise  of 
the  right  of  pre-emption  in  the  neighbour- 
ing Bagh  Mohalla  and  Naya  Bazar  are  not 
sufficient  to  prove  that  the  custom  exist  in 
the  locality  in  which  the  house  in  suit  is 
situate  We  proceed  then  to  examine  the 
judicial  decisions  relied  upon  as  proof  of 
the  generality  of  the  custom.  These  are 
mentioned  as  Nos.  20,  24,  25,  27,  28,  30, 
31  and  33  in  the  lower  Court's  judgment 
No.  20.  The  Munsif  who  decided  this  case 
said  in  his  judgment  (page  46,  line  3  of 
the  paper-book)  that  the  custom  of  pre- 
emption generally  obtained  in  Jhelum  City, 
but  the  point  was  not  in  issue,  as  the  exist- 
ence of  the  custom  in  the  locality  in  which 
the  house  in  suit  was  situate  was  not  denied, 
and  the  dispute  was  whether  the  plaintiffs1 
right  was  superior  to  that  of  the  vendee. 
The  Munsif  s  expression  of  opinion  that  the 
custom  prevailed  generally  in  the  city  does 
not  appear  to  have  been  based  on  any 
evidence  and  was  superfluous. 

No.  24.— -In  this  case,  although  reference 
was  made  to  certain  judgments  which  the 
Munsif  said  (pages  62  and  63  of  the  paper- 
book)  disclosed  that  the  custom  of  pre- 
emption prevailed  generally  in  Jhelum 
City,  the  finding  was  merely  that  the  cus- 
tom was  proved  to  exist  in  the  mohalla 
(Mohalla  Ramzan  Bakhsh)  in  which  the 
house  in  suit  was  situate,  and  this  was 
really  the  point  in  issue,  and  not, whether 
the  custom  prevailed  throughout  the  town. 

No.  25.— Here  also  the  issue  was  whether 
the  custom  prevailed  in  the  Mohalla  Mad- 
rassawala  in  which  the  house  was  situate, 
and  the  finding  (page  59)  was  that  it  pre- 
vailed"^" the  town  andin'the  Madrassawala 
Mohalla.  There  was  no  finding  that  the 
custom  prevailed  ''throughout1'  the  town, 
and  that  point  did  not  &rise.  The  evidence 
given  also  appears  to  have  been  of  instances 
in  only  three  mohallas  in  the  town. 

No.  27.— This  is  similar  to  No,  26,  The 
issue  was  merely  whether  the  custom 
existed  in  the  Naya  Bazar,  and  the  finding 
(page  71)  was  that  the  custom  existed  in 
'Jhelum  City  and,  therefore,  could  be  pre- 
sumed to  exist  in  ths  Naya 


»S  I.  0,  1926] 


MAHADHVA  IYER  V,  HAMKRIBHNA  REDDIAK. 


'653 


No.  28.  —  This  case  related  to  a  house 
which  was  in  either  Ramzan  Mohalla  or 
the  Madrassa  Mohalla  The  First  Court  had 
decided  that  no  custom  of  pre-emption 
existed  in  the  sub-division  in  which  the 
house  was  situate.  In  the  appeal  Mr. 
Prenter  held  (page  85)  that  there  were  no 
recognised  sub-divisions  in  Jhelum  City  at 
all,  and  said  that  he  was  inclined  to  think 
that  the  rulings  of  the  Courts  during  the 
last  50  or  60  years  made  it  almost  impossible 
for  the  custom  now  to  be  denied  in  any 
quarter  of  the  city.  We  cannot  attach 
•weight  to  that  observation,  as  Mr.  Prenter 
did  not  refer  specifically  to  any  particular 
rulings,  and  the  question  whether  the  cus- 
tom of  pre-emption  existed  in  all  parts  of 
the  city  did  not  arise  for  decision. 

No.  30.  —  It  was  decided  in  this  case  that 
the  custom  of  pre-emption  existed  in  the 
Naya  Mohalla  which  was  an  extension  of 
the  city  of  Jhelum  on  the  north.  The  Sub- 
ordinate Judge  said  in  his  judgment  (page 
90)  that  the  existence  of  the  custom  in  the 
city  of  Jhelum  was  an  uncontested  fact, 
but  this  cannot  be  taken  to  mean  that  the 
existence  of  the  custom  in  all  parts  of  the 
city  was  admitted. 

No.  31.  —  In  this  case,  as  in  Nos,  25  and 
26,  the  Court  found  (page  80)  that  the 
right  of  pre-emption  existed  "in''  Jhelum, 
but  not  that  it  existed  m  every  part  of  the 
town,  and  the  instances  of  which  evidence 
was  given  all  related  to  Mohalla  Mallahan, 
in  which  the  house  in  suit  was  situate. 

No.  33.—  The  judgment  of  the  first  Court 
in  this  case  is  printed  at  page  66  of  the 
paper-book  and  that  of  the  Appellate  Court 
on  page  73.  Here  again  there  was  no 
finding  that  the  custom  existed  throughout 
the  town  and  the  question  in  dispute  was 
only  whether  it  prevailed  in  the  Toya 
Mohalla. 

There  are,  on  the  other  hand,  certain 
decisions  against  the  existence  of  the  cus- 
tom. In  one  (page  99)  it  was  found  by  the 
Additional  Divisional  Judge  that  there  was 
no  proof  of  the  existence  of  the  custom  in 
Jhelum  City,  and  in  another  (page  96) 
the  Divisional  Judge  found  that  the  custom 
was  not  proved  to  exist  in  the  Naya  Bazar. 

Oar  conclusion  is  that  the  plaintiffs  have 
failed  to  prove  that  the  custom  of  pre- 
emption exists  either  throughout  the  town 
of  Jhelum  or  in  the  particular  locality  in 
which  the  house  in  suit  is  situate.  We 
Accordingly  accept  the  appeal,  reverse  the 


decree  of  the  lower  Court  and  dismiss  the 
suit  with  costs  throughout. 

The  cross-objections  are  dismissed. 

z.  K.  Appeal  accepted. 


MADRAS  HIGH  COURT. 

APPEAL  SUIT  No.  90  OF  1922. 

February  27,  1925. 

Present  — Justice  Sir  Charles  Gordon 
Spencer,    KT  ,  and  Mr    Justice    Odgers. 
B.  8.  MAHADEVA  IYER  AND  OTHERS 
—DEFENDANTS  Nos.  10,  6  AND  7 — 
APPELLANTS 

versus 

RAMAKRISHNA  RJSDDIAR  AND  OTHERS 
— PLAIHTIFFS  Nos.  1  TO  4 — DEFENDANTS 
—RESPONDENTS. 

Contract  Act  (IX  of  1872),  ss  263,  261+— Limitation 
Act  (IX  of  1008),  s  20—Partnerskip,  dissolution  of 
— Authority  of  one  partner  to  pay  debts — Notice  of 
dissolution  to  strangers,  want  of,  effect  of 

So  long  as  a  partnership  continues,  it  IB  a  part  of 
the  ordinary  course  of  partnership  business  to  pay 
partnership  debts,  and,  therefore,  it  would  ordinarily 
be  sufficient  to  prove  that  a  debt  paid  was  a  partner- 
ship debt  and  that  the  person  who  paid  the  interest 
on  it  or  part  of  the  principal  was  a  partner,  in  order 
to  give  an  extended  period  of  limitation  under  s  20 
of  the  Limitation  Act  [p  655,  col.  1,J 

But  even  after  a  partnership  has  become  dissolved, 
so  far  as  strangers  are  concerned  a  partnership  dis- 
solved is  a  partnership  in  being,  unless  and  until 
they  receive  notice  of  dissolution,  and,  m  the  case  of 
old  customers  with  the  partnership,  express  notice  of 
the  same  is  necessary  and  in  the  absence  of  it  aa 
acknowledgment  by  one  paitner  is  binding  on  the 
other  x>artnei  s  [ibid  ] 

Chundeechurn  Dutt  v,  Eduljee  Cowasjee  Bijnee  8  C 
678,  11  C  L.  R  225,  4  Ind  Dec  (N  s)  437,  relied  on. 

Appeal  against  the  decree  of  the  Court  of 
the  Subordinate  Judge,  Ramnad  at  Madura, 
in  O.  8.  No.  38  of  1920. 

Messrs.  A,  Krishnaswami  Iyer  and  Kt 
Krishnaswami  lyengar,  for  the  Appellants! 

The  Advocate- General  and  Mr.  A.  N. 
Krishna  lyengar,  for  the  Respondents, 

JUDGMENT. 

Odgers,  J.— In  this  ease  the  plaintiffs 
are  the  sons  of  one  8.  V.  Manavala  Reddiar 
who  died  about  1915  and  they  sue  the  de- 
fendants who  are,  as  to  defendants  Nos.  2 
to  4,  the  undivided  sons  of  defendant  No.  1 
and  as  to  defendants  Nos.  6  and  7,  the 
undivided  sons  of  defendant  No.  5  Defend- 
ant No.  1  and  defendant  No.  5  carried  on 
business  in  partnership  in  cotton  and  money- 
lending  under  the  style  of  "  P.  K.  N.'1  Firm. 
Defendant  No,  1  borrowed  from  Maaavala 


654 


MAHADEVA  IYER  If.  RAMAKRI8HNA  RBDDIAR. 


Reddy  Rs.  10,000  from  his  family  funds, 
in  his  (defendant  No.  JL's)  capacity  as 
managing  partner  on  26th  August  1914. 
The  suit  is  brought  on  the  promissory  note 
executed  thereupon  (Ex.  A).)  Defendant 
No  1  is  also  alleged  to  have  made  and 
endorsed  a  payment  of  Rs.  1,000  for  interest 
on  16th  August  1917  thus  saving  limita- 
tion. The  defence  is  that  the  partnership 
between  defendant  No.  1  and  defendant 
No.  5  had  -ceased  to  the  knowledge  of 
plaintiffs  long  before  16th  August  1917  and 
had  been  dissolved  by  a  decree  in  a  suit 
for  dissolution  (0.  S.  No.  7  of  1918)  brought 
by  defendant  No.  5,  the  capitalist  partner, 
against  defendant  No  1.  The  decree  de- 
cided that  the  partnership  was  dissolved 
as  from  llth  March  ,1915.  Consequently 
defendant  No.  1  had  no  anthority  to  bind 
his  former  partner  in  1917  by  an  endorse- 
ment of  part  payment  in  order  to  save 
limitation.  It  is,  110  doubt,  clear  law  that 
after  dissolution  no  ex-partner  has  power 
to  do  any  act  to  bind  another  ex-partner, 
c/.,  Watson  v.\ Woodman  (1),  where  the  Vice- 
Chancellor  held  that  it  was  not  there  proved 
that  the  two  parties  concerned  had  so 
intended  that  they  should  for  the  purposes 
of  that  suit  be  deemed  to  have  continued 
partners.  In  Rajagopala  Pillai  v.  Krishna- 
sami  Chetti  (2)  it  was  held  that  the  fact 
that  a  partnership  is  being  wound  up  is  by 
itself  insufficient  to  authorise  a  surviving 
partner  to  bind  the  representatives  of  a 
deceased  partner.  But  in  the  present  case 
it  is  clear  that  as  regards  third  parties  (in 
the  position  of  the  plaintiffs)  there  was  no 
notice,  express  or  constructive,  given  of 
dissolution  and  s.  264  of  the  Contract  Act 
is  clear  that  in  the  absence  of  such  notice, 
persons  dealing  with  a  firm  are  entitled 
to  assume  that  the  partnership  still  con- 
tinues [Chundee  Churn  Dntt  v.  Eduljee  Co- 
wasjee,  Bijnee  (3),  Giovani  Gorio  &  Co. 
v.  Vallabh  Das  Kalianji  (4).]  Therefore 
plaintiffs  were  still  entitled  even  after  1915 
to  regard  the  partnership  between  defend- 
ant No.  1  and  defendant  No.  5  with  whom 
they  have  dealt  for  15  years  as  subsisting. 
The  question  then  arises,  had  defend- 
ant No.  1  authority  to  bind  his  firm 
by  making  this  payment.  My  own  opinion 
is  that  as,  in  the  case  of  a  mercantile  firm 
afl  here,  each  partner  is  entrusted  by  his 

(1)  (1875)  20  Eq  721,  45  L  J  Ck  57;  24  W.  K.  47. 

(2)  S  M  L   J    261 

(3)  8  C    678,  11  C,  L    R    225;  4  Ind  Dec,  (K,  s) 
437. 

(1)  30  lad  Cas,  864;  17  Bom,  L,  R,  762. 


$2  1  0. 1926] 

co-par  tnera  with  a  general  authoritv  to  do 
any  act  necessary  for  or  usually  done  in 
carrying  on  the  business  of  such  partner- 
ship, a  partner's  authority  extends  to  mak- 
ing an  acknowledgment  by  part-payment 
so  as  to  bind  his  partners.  I  am  fortified 
in  this  opinion  by  that  of  Kumaraswami 
Sastri,  J.,  in  his  referring  judgment  in 
Pandiri  Veeranna  v.  Grandhi  Veerabhadra- 
swami  (5).  However  a  question  has  been 
raised  on  limitation  with  regard  to  the  pro- 
visions of  s.  21  (2)  of  the  Limitation  Act 
which  runs  as  follows  . — 

"Nothing  in  the  said  sections  renders 
one  of  several  joint  contractors,  partners, 
executors  or  mortgagees  chargeable  by 
reason  only  of  a  written  acknowledgment 
signed  or  of  a  payment  marie  by,  or  by 
the  agent  of,  any  other  or  others  of  them." 

These  words  have  been  construed  in  Pan- 
diri Veer unna  v.  Grandhi  Veerabhadraswami 
(5)  by  the  Full  Bench  of  this  Court     There 
the  learned  Judges  say   "  It   is   important 
to  notice  the  exact  wording  of  s.  21  (2)  of 
the  Limitation  Act     The  section  does  not 
say  that  a  person  shall  not   be  liable  on  an 
acknowledgment  signed  lay  the  partner  by 
reason  only  of  his  being  a  partner  but  by 
reason  only  of  a  written  acknowledgment 
signed  by  his  partner ;   and  it  amounts  to 
saying    that   if  you  have    no  more     than, 
written    acknowledgment    signed    by  one 
defendant  the  fact  that  the  other  defend- 
ant   is  his  partner  cannot  affect  the  latter's 
liability.        You   would   obviously  have    a 
case  where  one  partner  signed  an  acknow- 
ledgment in   respect    of  a  gambling  debt 
of  his  own  ;   but  for  the  sub- section,   proof 
of  the  acknowledgment  would  be  sufficient 
to  fix  the  other    partner  with   liability,  a 
conclusion    manifestly  repugnant   both    to 
sense    and    justice.11    (Page    434*)      Here 
there  is  no   question  that  the  part  payment 
was  in  respect  of  a  partnership  debt  (Ex.  A). 
There  is  also  ample    evidence    from  the 
surrounding  circumstances  which  we    are 
entitled  to  look  at  [Pandiri  Veeranna  v. 
Grandhi     Veerabhadraswami    (5)]    for  the 
conclusion  that  there  was  express  authority 
for  defendant  No.  1  to  make  the  acknow- 
ledgment to  rebut  the  possible  validity  of 
the  contention  that  from    the   wording  of 
a.   21  (2),  Limitation  Act,  there  is  no  pre- 
sumption   in    India,    that    a    partner  has 

(5)  45  Ind.  Cas.  18;  41  M   427  at  p.  431;  34  M.  L.  J, 
373,  23  M  L  T.  261,   (1918)  M.  W.  N.  285;   7  L.  W, 

552  

~  *Page  of  41  M,— [Ed.]  "  ; 


t.  0. 


MAHADEVA  IYER  V.  BAMAKRISHNA  ITBR. 


655 


power  to  acknowledge,  though  the  validity 
of  this  contention  is  at  least  doubtful  after 
the  exposition  of  the  sub  section  by  the 
Full  Bench  Plaintiff  witness  No.  3  a 
clerk  of  appellants'  (defendants')  firm  swears 
that  the  entry  in  Ex.  E  (1;  showing  the 
payment  of  Rs  1,000  on  16th  August  1917 
was  made  under  the  orders  of  defendants 
Nos.  1  and  5,  he  also  states  that  the  partner- 
ship has  not  been  wound  up  or  the  account 
settled.  Defendant  No.  5  himself  applied 
for  a  loan  to  the  South  Indian  Bank  in 
1015  (Ex.  G)  in  which  he  sets  out  the 
present  loan.  Exhibit s  H  is  the  defend*- 
ant  No.  5's  plaint  in  the  dissolution  suit 
against  respondent  No.  1.  He  says  that 
since  his  (defendant  No.  5's)  father's  death 
in  1907,  defendant  No.  1  and  another  assist- 
ant partner,  conducted  the  entire  business. 
Defendant  No.  5  was  obliged  to  rely  on 
defendant  No.  1  for  the  conduct  by  him  of 
all  matters  connected  with  the  partnership 
and  all  such  things  as  the  collection  of 
outstanding^  etr\  In  Ex.  F  dated  6th 
February  1918  the  present  appellant  ad- 
mits that  defendant  No  1  has  to  pay  a 
share  of  the  debt  due  to  Manavala  Reddi. 
There  is  also  a  correspondence  between 
the  Receiver  m  the  dissolution  suit  and 
the  Vakil  of  Manavala  Reddi's  sons  which 
shows  that  at  first  at  any  rate  the  appel- 
lants were  willing  to  discharge  their  half 
of  the  suit  debt  and  did  not  question 
their  liability  to  do  so.  There  is  no  doubt 
on  the  evidence,  which  there  is  no  reason 
to  discredit,  that  never  until  this  suit  was 
brought  did  ^appellants  dispute  their  liabi- 
lity nor  suggest  that  defendant  No.  1  was 
not  authorised  to  make  the  acknowledg- 
ment. The  proviso  of  s.  21  (2)  of  the 
Limitation  Act  as  construed  by  the  Full 
Bench  can,  therefore,  have  no  application 
to  the  present  case.  I  am,  therefore,  of 
opinion,  that  the  Subordinate  Judge  was 
correct  in  the  conclusion  he  came  to  and 
I  would  dismiss  this  appeal  with  costs  of 
plaintiffs  (respondents  Nos.  1  to  3).  Costa 
not  to  come  out  of  partnership  assets. 

Spencer,  J. — I  agree  that  the  appeal 
must  be  dismissed  with  costs  and  I  will 
give  my  reasons  in  my  own  language. 
Defendants  Nos.  6  and  7  sons  of  5th  de- 
fendant, who  died  during  the  suit,  appeal 
and  10th  defendant  is  the  Receiver  in  O.  8. 
No.  7  of  1918. 

From  the  terms  of  the  reference  in  Pan- 
diri  Veeranna  v.  Grandhi  Veerabhadraswami 
5)  it  appears  that  the  Full  Bench  had 


not  to  consider  the  effect  of  s.  21  (2)  of  the 
Limitation  Act  upon  acknowledgments  of 
debts  and  payments  saving  limitation  by 
partners  with  express  reference  to  the  cir- 
cumstance of  the  partnership  being  a  con- 
tinuing one  or  one  that  had  been  dissolved 
at  the  time  of  acknowledgment  or  payment. 
The  learned  Judges  observed  that  they  saw 
nothing  in  the  sub-section  to  make  it  neces- 
sary to  suppose  that  it  was  intended  to  apply 
to  transactions  conducted  in  the  ordinary 
course  of  partnership.  They  overruled 
Valasubramania  Pillai  v.  Ramanathan 
Chettiar  (6).  So  long  as  a  partnership 
continues,  it  is  a  part  of  the  ordinary  course 
of  partnership  business  to  pay  partnership 
debts,  and,  therefore,  it  would  ordinarily 
be  sufficient  to  prove  that  the  debt  in  ques- 
tion was  a  partnership  debt  and  that  the 
person  who  paid  the  interest  on  it  or  part 
of  the  principal  was  a  partner  in  order  to 
give  an  extended  period  of  limitation  cal- 
culated from  the  date  of  payment  as  against 
all  the  other  partners.  Even  after  dissolu- 
tion, s.  203  of  the  Contract  Act  provides 
that  the  rights  and  obligations  of  the  part- 
ners continue  in  all  things  necessary  for 
winding  up  the  business,  and  from  s.  265 
it  appears  that  payment  of  the  firm's  debts 
is  part  of  the  business  of  winding  up.  But 
after  a  partnership  has  become  dissolved, 
it  may  not  be  the  particular  duty  of  every 
person  who  has  been  a  partner  to  pay  and 
acknowledge  debts  of  the  firm,  as  by 
arrangement  that  may  be  done  by  the  Court, 
or  by  a  Receiver  or  by  one  of  the  ex-partners 
acting  as  agent  for  the  others.  So  far  as 
strangers  aie  concerned,  a  partnership  dis- 
solved is  a  partnership  in  being,  unless 
and  until  they  receive  notice  of  dissolution. 
In  the  case  of  old  customers,  like  the 
plaintiffs  in  this  case,  express  notice  is 
necessary  [vide  Chundee  Churn  Dutt  v, 
Edulyee  Gowasjee  Bijnee  (3)  and  Pollock 
and  Mulla's  Commentary  on  s.  2tf4J.  It 
has  not  been  proved  by  the  evidence  in 
this  case  that  the  plaintiffs  received  any 
notice  of  the  partnership  of  defendants 
Nos.  1  and  5  having  become  dissolved  on 
llth  March  1915  or  indeed  on  any  date 
before  16th  August  1917  when  the  payment 
of  Rs.  1,000  was  made  by  1st  defendant  to 
2nd  plaintiff  according  to  his  evidence  as 
P.  W.  No.  4  and  the  ledger  Ex.  E  (1).  For 
some  unaccountable  reason  no  issue  as  to 
limitation  was  directly  raised  in  the  lower 

(6)  2  Ind,  Ous,  300,  32  M,  421,  3  M,  L.  T*  102, 


65$ 


ZIADA  V.  GURDAS  RAM. 


[921.0,1926] 


Court,  Plaintiff  witness  No.  3  who 
was  clerk  of  the  firm,  says  that  the  firm's 
business  was  closed  on  14th  Thai,  Rak- 
shasa,  corresponding  to  January  27th  1916, 
but  the  defendant  who  as  authorised  agent 
of  his  father,  5th  defendant,  brought  O.  8. 
No.  7  of  1918  on  the  file  of  the  Sub-Court 
of  Ramnad  against  1st  defendant  to  obtain 
a  declaration  that  the  partnership  terminat- 
ed on  llth  March  1915  did  not  present 
the  plaint  in  that  suit  to  the  Court  before 
1st  February  1918  (see  Ex.  H).  In  para.  11 
of  the  plaint  the  5th  defendant  states  that 
he  was  dependent  «n  the  1st  defendant 
for  all  matters  connected  with  the  business 
of  the  firm  such  as  the  collection  of  out- 
standings  even  after  10th  March  1925  pend- 
ing the  settlement  of  the  accounts. 

Fifth  defendant  in  Ex.  G  a  loan  applica- 
tion made  to  the  South  Indian  Bank,  and 
7th  defendant  in  his  affidavit  (Ex.  F)  and 
in  his  letter  (Ex.  D-2)  to  the  Receiver  ad- 
mitted that  the  debt  due  to  the  plaintiffs 
was  a  partnership  debt  of  the  P.  K.  N. 
firm,  and  P.  Ws.  Nos.  3  and  4  deposed, 
without  being  contradicted  or  shaken  in 
cross-examination,  that  the  payment  of 
Rs.  1,OOU  was  a  joint  payment  by  both  1st 
and  5th  defendants  and  that  the  entry  in 
the  accounts  was  made  under  the  authority 
of  both  of  them.  This  is  quite  enough 
to  fix  all  the  appellants  with  liability  and 
to  save  limitation.  I  agree  in  the  proposed 
order  for  costs, 

v.  N.  v,  Appeal  dismissed. 

N    H. 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  2304  OF  1921. 

December  23,  1924 
Present: — Mr.  Justice  Harrison  and 

Mr.  Justice  Zafar  Ali, 

ZIADA  AND  OTHERS — DEFENDANTS 

— APPELLANTS 

versus 
GURDA8  RAM— PLAINTIFF— 

RESPONDENT. 

Limitation  Act  (IX  of  1W8),  Sch.  I,  Art.  132— 
Mortgage-deed— Mortgagor  at  Liberty  to  pay  at  any 
time— Commencement  of  limitation  for  mortgagee 

Where  .according  to  the  terms  of  the  mortgage-deed 
the  mortgagor  is  at  liberty  to  pay  at  any  time,  the 
mortgagee  is  equally  at  liberty  to  foreclose  and  his 
limitation  under  Art.  132  of  Sch.  I  to  the  Limitation 
£ct  begins  to  run  at  once,  [p.  657,  col,  l.J 


Appeal  from  a  decree  of  the  Senior  Sub- 
Judge,  Hhahpur  at  Sargodha,  dated  the  31st 
May  1921. 

Sir.  Zafrulla  Khan,  for  the  Appel- 
lants. 

Messrs.  Nanak  Chand  and  C.  L.  Mathur, 
for  the  Respondent. 

JUDGMENT.—The  ancestor  of  the 
defendants  in  thia  case  charged  the  land  in 
suit  by  several  mortgage-deeds.  The  de- 
fendants made  an  application  under  the 
Redemption  of  Mortgages  Act  and  obtained 
an  order  for  possession  on  payment  of 
Rs.  700  only,  this  being  the  principal  sum 
charged  by  the  first  mortgage.  The  plaint- 
iff-mortgagee thereupon  brought  this  suit 
for  a  declaration  that  the  amount  payable 
under  the  various  deeds  was  Rs.  13,6*?0  and 
the  land  could  only  be  redeemed  on  pay- 
ment of  this  amount.  The  decree  given 
by  the  Sub-Judge  was  that  the  total 
charges  amounted  to  Rs.  12,235,  two  small 
items  having  been  disallowed  on  account  of 
improvements  to  a  well  and  a  third  so 
called  mortgage. 

The  defendants  appeal,  urging  that  the 
whole  of  the  suit  except  so  far  as  it  relates 
to  the  first  mortgage  is  barred  by  time. 
The  first  mortgage  is  usufructuary,  or 
almost  entirely  usufructuary,  that  is  to  eay, 
the  amount  secured  was  Rs.  700 ;  out  of 
this  interest  was  payable  on  Rs,  50,  arid 
the  rent  and  profits  of  the  land  were  to  be 
taken  as  equivalent  to  the  interest  on  the 
balance  of  Rs  650.  Counsel  for  the  appel- 
lant now  admits  that  the  whole  of  the 
interest  claimed  as  well  as  the  principal  is 
due  on  this  mortgage,  or  a  total  of  Rs.  1,873 
and  urges  that  nothing  should  have  been 
allowed  on  the  second  mortgage,  the  date 
of  which  was  the  llth  of  August  18H4,  the 
first  mortgage  having  been  executed  in 
May  1892  and  the  period  therein  fixed  being 
10  years,  that  is  to  say,  up  till  1902. 

On  the  first  mortgage  limitation  haa 
been  saved  at  regular  intervals  by  the 
appropriation  of  the  profits  and  rents  to- 
wards the  greater  part  of  the  interest,  and 
the  contention  of  Counsel  for  the  respond- 
ent is  that  the  words  "  all  the  conditions 
laid  down  in  the  previous  mortgage- deed 
shall  also  apply  to  the  present  mortgage* 
deed*' — saved  limitation  in  the  second  also 
The  clause  in  the  second  mortgage  runa 
as  follows: — "All  the  conditions  laid  down 
in  the  previous  mortgage-deed  shall  also 
apply  to  the  present  mortgage- deed.  The 
mortgaged  property  shall  be  redeemed 


[02  I.  0.  1926]  SARTAJ  KOER  V. 

when  I  pay  up  to  the  mortgagees  the 
present  mortgage-money  with  inteiest 
along  with  the  mortgage  charges  due  under 
the  previous  deeds  as  stipulated  therein. 
I*  shall  have  no  authority  whatsoever  to 
redeem  the  mortgaged  property  or  to  alien- 
ate it  in  any  way  without  paying  up  the 
mortgage-deed  along  with  those  of  the  pre- 
vious ones.  I  shall  be  at  liberty  to  pay  at 
any  time  the  money  due  under  the  present 
mortgage-deed.  I  shall  have  no  authority 
to  transfer  in  any  way,  the  mortgaged  pro- 
perty to  any  other  person  unless  the  money 
due  under  the  present  mortgage- deed  is 
paid.  The  mortgagees-shall  also  be  compe- 
tent to  realise  the  mortgage-money  due 
under  the  present  deed  along  with  those 
of  the  previous  ones  recited  therein  from 
the  mortgaged  property,  other  property  of 
mine  from  my  person.11 

Had  the  deed  concluded  with  the  first 
sentence  of  this  clause,  or  even  with  the 
first  three  sentences,  there  would  have  been 
great  force  in  the  respondent's  contention. 
This  portion  of  the  deed,  however,  is  wholly 
negatived*  by  what  follows  "I  shall  be  at 
liberty  to  pay  at  any  time  the  money  due 
under  the  present  mortgage-deed."  But 
Counsel  contends,  the  concluding  portion 
which  runs :  "  The  mortgagees  shall  also 
be  competent  to  realise  the  mortgage- 
money  due  under  the  present  mortgage- 
deed  along  with  those  of  the  previous  ones 
recited  therein  from  the  mortgaged  pro- 
perty, etc./1  restores  the  status  quo  ante  and 
makes  the  first  portion  of  the  clause  opera* 
tive  and  conclusive.  In  our  opinion,  the 
words  "  along  with  those  of  the  previous 
ones11  are  only  used  to  indicate  that  the 
money  reliable  on  the  second  mortgage  is 
a  charge  on  the  property  just  as  much  as 
the  money  secured  by  the  first  mortgage, 
and  the  words  do  not  mean  that  the  mort- 
gagee is  debarred  from  realising  his  money 
on  the  second  mortgage  unless  he  sues 
at  the  same  time  to  realise  on  the  first. 

The  all  important  words  are  to  the  effect 
that  the  mortgagor  is  at  liberty  to  pay  at 
any  time.  The  mortgagee  was  also,  there- 
fore, equally  at  liberty  to  foreclose  and  his 
limitation  under  Art.  132  began  to  run  at 
oace.  Counsel's  argument  that  inasmuch 
as^he  was  forced  to  bring  this  suit  by  the 
proceedings  before  the  Revenue  Officer  he 
should  be  treated  as  a  defendant  while  he 
is  a  plaiatif!  has  no  force  in  our  opinion. 
*  The  total  cjiarge,  therefore,  ampunts  to 
Us,  1,873  and  we  accept  the  appeal  in  BO 

4> 


MAHADEO  But.  65? 

far  as  to  give  the  plaintiff  a  decree  to  the 
effect  that  the  mortgage  charges  on  the 
land  in  suit  amount  to  thia  sum.  tinder 
the  circumstances  of  the  case  \\e  leave  the 
parties  to  bear  their  own  costs. 

The  cross-objections  have  not  been  press- 
ed and  are  dismissed. 

R.  L.  Appeal  partly  accepted. 


OUDH  CHIEF  COURT. 

FIRST  CIVIL  APPEAL  No,  73  OF  ly24, 

December  15,  1925. 
Present: — Mr.  Justice  Stuart  and 

Mr  Justice  Hafean. 

Musammat  SARTAJ  KOER— PLAINTIFF* 
— APPELLANT 

versus 

MAHADEO  BUX  alias  CHUTAI— 
DEFENDANT-— RESPONDENT. 

Custom,  proof  of—  Wajib-ul-arz,  entry  in,  value  of 
^Succession — "Malik11,  meaning  of — Widow,  estate 
taken  by— Kayasthaa  of  village  Khanpur  Khaburat 
District  Rai  Bareli 

A  Settlement  Officer  in  recording  custom  in.  a 
wajib-ul-arz  has  to  perform  dutied  which  the  Govern- 
ment orders  him  to  perform  One  of  these  duties  is 
to  record  customs  as  the  Settlement  Officer  finds  them 
and  not  as  he  might  think  they  ought  to  be  When, 
therefore,  it  is  not  shown  by  reliable  evidence  that 
the  Settlement  Officer  neglected  to  perform  his  duty 
or  was  misled  in  recording  a  custom,  and  it  does  not 
appear  that  the  statement  of  the  custom  is  ambiguous, 
the  lecord  m  a  wajib-ul-arz  of  a  custom,  is  most 
valuable  evidence  of  the  custom,  much  more  reliable 
evidence  than  subsequent  oral  evidence  given  after 
a  dispute  as  to  the  custom  has  arisen,  [p  659,  cols.  1  & 

2] 

Where  a  devisee  or  a  donee  is  described  as  d 
"malik"  he  has  a  full  nght  of  alienation  unless  there 
is  something  in  the  context  or  in  ths  surrounding 
ciicumstances  to  indicate  that  such  full  proprietary 
rights  weie  not  intended  to  be  conferred.  [p  *>t)0,  col* 

2J 

A  clause  in  a  wayib-ul-arz  relating  to  the  succes* 
sion  to  the  estate  of  a  deceased  proprietor  ran  ad 
follows  — "If  included  amongst  the  wives  one  wife 
has  sons  and  the  others  have  none  then  such  wives  a$ 
have  no  sons  shall  take  shares  for  the  period  of  their 
lives,  and  after  the  deaths  of  such  wives  the  sons  of 
the  other  wives  shall  be  malik  of  such  shares  and  if 
there  be  no  wife  with  sons,  then  the  wives  of  the 
deceased  shall  become  malik  over  the  inheritance  oi 
the  deceased  in  equal  shares'"1 . 

Held,  that  the  meaning  of  the  concluding  portion  of 
the  clause  was  that  where  a  proprietor  had  left  only  on* 
wife  without  a  son,  that  wife  would  become  absolute 
owner  with  right  of  transfer  over  the  whole  of  Jbiis 
property  [p  t>61,  col.  1  ] 

Among  Kayasttias  of  village  Khanpur  Khabura,  in 
the  Kae  Bareh  District,  a  widow,  in  the   absence  of" 
sous,  succeeds  to  the  estate  of  her  deceased  huebaiid-aa 
aa  absolute   owner  with  full  powers  of   alienation^ 
[ibid.] 


658 


SARTAJ  K06R  V.  MAHADEO  BUX. 


First  appeal  against  the  judgment  and 
decree  of  the  Subordinate  Judge,  Rae 
Bareli,  dated  the  1st  September  1924. 

Messrs.  M  Wasim  and  liajeswari  Prasad, 
for  the  Appellant. 

Messrs  A.  P.  Sen,  Bishambhar  Natti  Siri- 
vastava  and  Har  Gobind  Dayal,  for  the  Re- 
spondent, 

JUDGMENT.— This  is  a  plaintiff's 
appeal.  The  plaintiff  Sartaj  Kuar  is  the 
daughter  of  a  certain  Gurprasad  Kayastha 
who  died  in  1896  in  proprietary  possession 
of  the  whole  of  the  village  of  Mubarakpur 
and  Khandepur  and  a  1  anna  4  pies  share 
in  the  pillage  of  Khanpur  Khabura.  He 
died  without  male  issue  leaving  a  widow 
Batasa  Kuar  and  two  daughters,  the 
plaintiff-appellant  Bartaj  Kuar  and  Sukh- 
dei.  Sukhdei  who  was  married  to  a  man 
called  Debi  Bakhsh  had  four  sons  one  of 
whom  was  Mahadeo  Bakhsh.  Batasa  Kuar 
succeeded  to  her  husband's  interests. 
Under  a  compromise  made  by  her  prior  to 
1905  she  gave  up  a  full  proprietary  share  of 
2-annas  in  Mubarakpur  and  Khandepur  to 
a  certain  Mahu  Narain  a  collateral  relative 
of  her  deceased  husband.  This  left  her 
With  a  14-annas  share  in  Mubarakpur  and 
a  14-annas  share  in  Khandepur.  On  the 
13th  October  1905  she  executed  a  deed  of 
gift  of  the  14- annas  share  in  Mubarakpur 
and  14-annas  share  in  Khandepur,  the 
1  anna  4  pies  share  in  Khanpur  Khabura 
and  a  house  in  Mubarakpur  in  favour  of 
her  grandson  Mahadeo  Bakhsh.  Batasa 
Kuar  died  on  the  23rd  April  192  J.  Mahadeo 
Bakhsh  obtained  possession  over  the  pro- 
perty the  subject  of  the  deed  of  gift  (accord- 
ing to  his  assertion)  prior  to  the  death  of  his 
grand-mother.  In  1923  Sartaj  Kuar  institut- 
ed the  suit  out  of  which  the  present  appeal 
arises  for  possession  of  the  property  which 
was  the  subject  of  the  deed  of  gift,  The 
suit  was  against  Mahadeo  Bakhsh.  Her 
suit  was  dismissed  by  the  Subordinate 
Judge  of  Rae  Bareli  on  the  27th  August 
1924  upon  two  main  findings.  The  first  was 
that  Batasa  Kuar  had  executed  the  deed  of 
gift  in  question  fully  understanding  what 
she  was  doing.  The  second  finding  was 
that  under  a  family  custom  Batasa  Kuar 
had  full  proprietary  title  to  the  property 
transferred.  The  appeal  contests  the  validity 
of  these  two  findings. 

In  respect  of  the  first  finding  we  have  it 
established  upon  the  evidence  that  the  deed 
of  gift  of  the  13th  October  1905  was  execut- 
ed by  Batasa  Kuar.  The  deed  is  on  the 


[921.0.  1926j, 

record  as  defendant's  Ex.  A  23.  Its  trans- 
lation  is  printed  on  Part  III,  page  78,  of  the 
Printed  Book.  It  was  properly  stamped 
and  registered.  The  evidence  in  support 
of  its  execution  is  the  evidence  of  Mahadeo 
Bakhsh  defendant  respondent  which  is  con- 
tained in  Part  I,  page  27,  of  the  Printed  Book. 
His  evidence  is  as  follows: — 

"Musammat  Batasa  Kuar  executed  the 
deed  of  gift  in  my  favour,  I  was  present 
at  the  time  of  execution  of  the  deed,  Ram 
Adhin,  Sheo  Sakat  Rai  and  Randhir  Singh 
attested  the  deed.  Girja  Prasad  was  the 
scribe  of  the  deed.  Musammat  Batasa  put 
her  mark  on  the  deed  in  the  presence  of 
myself,  the  scribe  and  the  attesting  witnesses. 
The  three  attesting  witnesses  signed  the 
deed  in  my  presence  and  in  the  presence 
of  Batasa  Kuar.  The  three  attesting  wit- 
nesses and  the  scribe  are  dead.  The  deed 
was  registered  in  my  presence,  and  she  said 
to  Sub-Registrar  in  my  presence  that  she 
had  executed  the  deed  Ganga  Prasad 
Brahman  was  the  Mukhtiar  of  Batasa  Kuar, 
He  wrote  Batasa  Kuar's  name  on  the  deed 
of  gift  with  her  permission.  The  -deed  toas 
read  out  to  Batasa  Kuar  by  Girja  Praaad 
who  explained  it  to  her  before  she  was 
asked  to  sign  the  deed.  Sheikh  Shahabud* 
din  Sahib,  the  late  Pleader  of  this  Court, 
prepared  the  draft  of  the  deed  of  gift. 

•'(Exhibit  A-23  ehown).  This  is  the  deed 
executed  by  Batasa  Kuar.  She  put  her  mark 
on  the  deed  at  two  places  (witness  points 
them  out),  The  three  attesting  witnesses 
signed  it  in  my  presence.  (Witness  identi- 
fies them). 

"I  got  this  deed  of  gift  back  from  the 
Registration  Office  for  Batasa  Kuar  said 
that  the  deed  should  be  returned  to  me, 
I  have  been  in  possession  of  the  property 
from  the  time  of  gift." 

Musammat  Batasa  Kuar  gave  evidence  in 
a  suit  on  the  5th  of  August  1909,  Her  depo- 
sition is  defendant's  Ex.  A- 11  and  will  be 
found  on  Part  III,  pages  b8  and  89,  of  the 
Printed  Book.  While  this  deposition  con- 
tains some  slight  divergences  from  the  con- 
ditions of  the  deed  of  gift  it  supports  abso- 
lutely the  contention  of  the  defendant-res- 
pondent that  the  lady  had  with  full  know- 
ledge of  what  she  was  doing  made  a  deed 
of  gift  in  his  favour  and  put  him  in  posses- 
sion. We  accept  the  finding  of  the  learned 
Subordinate  Judge  as  correct  to  the  effect 
that  Musammat  Batasa  Kuar  executed  the 
deed  of  gift  and  executed  it  with  full 
knowledge  as  to  what  she  was  doing. 


I.  0. 1926] 


SARTAJ  KOER  V,  MAHADEO  BUX, 


659 


farther  find  that  Mahadeo  Bakhsh  was  put 
in  possession  during  the  lady's  life  time 

We  now  come  to  the  contention  which  is 
to  the  effect  that  Batasa  Kuar  had  no  power 
of  transfer  and  that  the  deed  of  gift  is  ac- 
cordingly BOW  invalid.    In  the  absence  of 
the  custom  set  forward   by  the  defendant- 
respondent  Batasa  Kuar  as  a  widow  of  a 
Hindu   governed  by  the  Mitakshara    Law 
would  not  ordinarily  have  had  the  power  of 
transferring  the  property  by  gift  for  a  period 
beyond    her  life  time,    The    defendant-re- 
spondent has  met  this  plea  by  asserting  the 
family  custom  and  in    the  opinion    of  the 
learned  Subordinate  Judge  he  has  estab- 
lished its  existence     The  first  point,  that 
we  have  to  consider  is  whether  the  evidence 
established  the  existence  of  any  custom  in 
derogation  of  the  ordinary  Hindu  Law  and 
the  next  point  which    we  have  to  consider 
is  even  if  a  custom  is  established   whether 
it  justifies  the  transfer  by  gift.     In   respect 
of  the  question  as  to  proof  of  custom    the 
evidence  is  contained  almost  entirely  in  the 
wajib-ul-arz    of    the    village    of   Khanpur 
Khabura  (plaintiff's  Ex.  5}  a  translation  of 
which  will   be  found  at  Part  III,  pages  23 
and  24,  ofthePiinted  Book     The  learned 
Counsel  for  the  appellant  has   argued  that 
the  Court  would  not  be  justified  in  finding 
upon  the  basis  of  this  ivajib-ul-arz  alone  that 
a  '  custem    exists      The  principles    which 
should  guide  us  in  arriving    at  decision  on 
this  point  have  been  laid  down  very   clearly 
by  their  Lordships  of  the  Privy  Council  in 
Balgobindv.  Badu  Prasad  (1).  This  is  a  deci- 
sion of  the  10th  May  1923,  and   it,   in  our 
opinion,  gives  a  final  pronouncement  upon 
the  point,  on  which  there  was  formeily  some 
Difference  of  opinion,  as  to  the  method  by 
wTaich  the  value  of  the  evidence  afforded  by 
an  entry  as  to  custom  in  a  wajib-ul-arz  in 
Oudh  should  be  determined.    This  appeal 
related  to  an  alleged  custom  in  a  village  in 
Gondain  the  Province  of  Oudh.  Its  existence 
depended  upon  an  entry    in  one  wajib-itsl- 
arz.    At  page  20  L*  their  Lordships  stated  : — 
(<  It  is   quite   true   that  a   custom   is  not 
established   by  an  ambiguous  statement  of 
it  in  a  wa jib  -ul- arz"  They.continued  later  ; 

<f  Settlement  Officers  in  recording  customs 
iu  wa,]ib-ul-araiz  have  to  perform  duties 
which  the  Government  orders  them  to  per- 
form. 

JK)ae  of  these  duties  was  to  record 
customs  as  the  Settlement  Officer  found  them, 

j  (1)  74  Ind.  Gas  440,  50  I  A  196. 


and  not  as  he  might  think  they  ought  to 
be.  When  it  is  not  shown  by  reliable  evi- 
dence that  the  Settlement  Officer  neglected  td 
perform  his  duty  or  was  misled  in  recording 
a  custom,  and  it  does  not  appear  that  the 
statement  of  the  custom  is  ambiguous,  the 
record  in  a  wajib-ul-arz  of  a  custom  is  most 
valuable  evidence  of  the  custom,  much  more 
reliable  evidence  than  subsequent  oral 
evidence  given  after  a  dispute  as  to  tha 
custom  has  arisen, 

"  There  was  no  evidence  to  prove  or  even 
to  suggest  that  the  Settlement  Officer  in 
stating  the  custom  as  he  did  in  the  wanb- 
ul  arz  had  in  any  way  neglected  his  duty 
in  ascertaining  what  the  custom  was,  or 
was  misled  as  to  the  custom  ;  nor  was  there 
any  evidence  given  in  this  suit  in  denial  of 
or  at  variance  with  the  custom. 

"  Their  Lordships  find  that  the  custom 
excluding  daughters  and  their  issue  from 
inheritance  was  proved/1 

We     now     proceed     to    examine      the 
wajib-ul-arz   which    has    relation   to    the 
matter  before    us     It    was  drawn  up    on 
the  19th  July  1865   at  the  time    of  Settle-, 
ment.    The    first    paragiaph     gives      the 
history  of  the  village.    Khanpur  Khabura 
which  was  the  principal  village  of  the  fami- 
ly, to  which  Gur  Prasad  belonged,  had  been 
in   the  possession  of   this  family  from  the 
beginning  of  the  17th  century.    This  family 
held  the  hereditary  office  of  qanungo.    The 
family  had  leceived  certain  special    privi-* 
leges  in  holding  the  village  revenue  free, 
The  first  paragraph  states  these  privileges 
aad   states  how  the  village  had   remained 
with  the  family  for  250  years     The  wajib*, 
ul-arz  was  verified  by  ?U  members  of  thfc 
family  including  Gur  Prasad   himself     It', 
continued  to  lay   down  in  the  fourth  para-' 
graph  a  custom    of    succession.     We  shalL 
interpret  the  custom  of  succession  later  buV 
we  find  here  that  there  is  nothing  to  show 
that  the    Settlement  Officer  neglected    to 
perform  his  duty  in  recording  the  custom 
as  he  found  it.    There  is  nothing  to  show 
that  he  recorded  what  he  thought  ought  ta 
be  the  custom   instead  of  what    was  thei 
custom     There  is  nothing  to  show  that  he 
was  misled  in  recording  the    custom.    We 
shall  consider  later  whether  the  custom  was 
or  was  not  ambiguous 

The  words  which  we  have  to  interpret 
have  been  translated  in  part  by  the  learrieti? 
Subordinate  Judge  and  translated  cotn^ 
pletely  by  a  translator  of  this  Oourt.  The 
translator's  translation  is  inaccurate.  The 
translation  of  the  Subordinate  Judge  ig 


8AJRTAJ  KOER  V.  MUHAMMAD  BUX, 


accurate  but  only  gives  a  portion  of 
t!be  relevant  matter.  We  prefer  to  translate 
these  words  ourselves.  This  is  our  transla- 
tion: 

"  II  there  are  ia  existence  several  wedded 
^ives  of  the  deceased  co-sharer  aud,  there 
hav$i  been  sons  from  each  wife  in  varying 
njifnbers  then  the  inheritance  shall  be 
djyidqd,  with  reference  to  the  number  of 
^ve?  oa  the  principle  of  jurabant  as  fal- 
lows :— 

"  Where  there  is  in  existence  a  wife  with 
only  one  soi*  and  where  the  remaining  wife 
h$a  jhpre  than  one  son  the  sons  of  the  first 
nfcjh^d,  and  the  sons  of  the  second  named 
fijjjxall,  severally  take  possession  of  one  moie- 
ty ,  of  tl^e  estate  of  the  deceased'1  (a  more 
U|e?al  translation  of  the  last  passage  would 
be  "'where  a  wife  has  only  one  son  he  will 
ta&9_  possession  of  one-half  share  of  the 
4eQeas$(Ts  inheritance  and  where  the  re* 
niaining  wife  has  more  than  one  son  all  such 
&Cy3£  will  .take  possession  of  the  remaining 
]^}f  of  tfye  inheritance  of  the  deceased  " 
u  if  included  amongst  the  wives  one  wife, 
hqfk-sons  and  the  others  have  none  then 
B.U£Jl  wives  as  have  no  sons  shall  take  shares 
fpr.th^  period  of  their  lives,  and  after  the 
de|ktbjS,of  such  wives  the  sons  of  the  other 
vmrft  shall  be  malik  of  such  shares  and  if 

tf^,bQvno,wife  with  sons,  then  the  wives 
tbje.  deceased  shall  become  malik  over 
inheritance  of  the  deceased  in  equal 


We  have  advisedly  left  the  word  malik 
for.  the  present  in  vernacular  as  the  most 
important  question  for  decision  in  this 
appeal  i&Us  interpretation.  The  interpreta* 
this,  word  has  been  before  the  Courts 
occasions.  We  consider,  however, 


on 


,  thp.meaning  .which  should  be  given 
to  ,it,in,  judicial  proceedings  has  now  been 
established  beyond  doubt  by  two  decisions- 
oOhpijr  Lqrclsbip&  of  the  Privy  Council  of 
tfcp'ye&r  ,192i.  The  first  of  these  will  be 
foiip4  'in  the  report  of  Bhaidas  Shivdas  v. 
J3o!i.(j(ulQb  (2).  There  the  word  malik  was 
,a  Will  made  in  the  Gujrati  language. 
wouldiappear  to  be  no  difference  in 
the  words  as  used  in  Gujrati 
aad  a^,  used  in  the  wajib-ul-arz  under  con* 
eratio^.  Lord  Buckmaster  on  page  6* 
the'  decision  said  ;  — 

"  Tliere  is  na  dispute  that  the  word    that 
waq  upcd  in  cL  3  as  the  original  word  of 
the  word  *  malik  '  which  could  be 


(2):63  lad.  Gas.  974;  49  I.  A  1;  26  0.  W.  N  129;  15 
W.4l%  20A.L.J.889,  42  M.  L.  J.  385  (P.  0.}. 


appropriately  used  to  constitute  the  wife 
absolute  owner,  It  is  not  thafc  the  word  i& 
a  '  term  of  art',  it  does  nob  necessarily  de- 
fine the  quality  of  the  estate  takeft  bufr 
the  ownership  of  whatever  that  estate  may 
be  ;  and  in  the  context  of  the  present  Wilt 
their  Lordships  think  the  estate  was 
absolute." 

In  the  subsequent  decision  of  Sasimon 
Chowdurain  v.  Shib  Narayan  Chowdhury 
(3)  their  Lordships  were  interpreting  a  Wi$ 
made  by  a  Hindu  of  Behar  in  Urdu.  The 
Urdu  used  in  the  Will  was  Urdu  similar  \4 
that  used  in  the  wajib-ul-arz  under-  con* 
sideration,  This  decision  reviewed  all  the 
most  important  decisions  in  which  the  word 
'malik  '  had  been  interpreted,  commencing, 
with  the  decision  of  their  Lordships  them- 
selves in  Moulvie  Mahomed  Shumsool  Hoodtt 
v.  Shzwukram  (4).  At  page  35*  the  decision 
states: — 

"  It  appears  from  some  of  the  decision 
to  which  their  Lordships  have  referred  and 
from  the  judgment  of  tHfe  Board  in  Bhaida* 
Shivdas  v.  Bai  Gulab  (2)  that  the  term 
*  malik\  when  used  in  a  Will  or  other 
document  as  descriptive  of  the  position 
which  a  devisee  or  donee  is  intended  to" 
hold,  has  been  held  apt  to  describe  an 
owner  possessed  of  full  proprietary  rights, 
including  a  full  right  of  alienation,1  unless 
there  is  something  in  the  context  or  in  th# 
surrounding  circumstances  to  indicate  th&t' 
such  full  proprietary  rights  were  not 
intended  to  be  conferred,  but 
of  every  word  in  an  Indian  Will  must 
depend  upon  the  setting  in  which  it  is 
placed,  the  subject  to  which  itisrelatedy 
and  the  locality  of  the  testator, from-  which8 
it  may  receive  its  true5  shade  of'inetrnw 
ing,  and  their  Lordships  can  fin<J  nothihg 
in  the  quoted  decisions  contrary  to  this1 
view11' 

According  to  this  decision,  whibh.  settfeir 
the  matter  finally,  a  devisee  or  d.onee  de? 
scribed  as  a  "malik"  has  a  full 'right1*  or* 
alienation  unless  there  is  something  in  t^ 
context  or  in  the  surroundidgtntniuniertiipcf » 
to  indicate  that  such  full  propriet»ry;rigfrls 
ware  not  intended  to  be   conffcfred.    Th^ 
learned  Counsel  for  the  appellant  has.  argu- 
ed that  now,here  ,  have  their  Lordsljipa  of< 
the  Pjivy   Council,  considered-  the:  m&toing? 
of  the  word  malik  in  a  wajib-ul-arz  in  QtttfrhV 
That  is  so,  but  the  portion  of  a  wa>jib*ul*nirz 

(3)  66Ind.  Oas.  193;  49  I.  A.  25. 

(4)  2  I.  A.  7;  14  B.  L.  JR.  226;  22  W.  R.  ,409;,  3  Bar, 
P,  0,  J,  405  (P.  0.). _____ 


[924.  0.  1936J          KormiMooi  OHINNAVYA  i>, 


MINGAMMA. 


ia   Qudh  which  contains  a  custom  of  suc- 
cession is  clearly  a  document  of  the  same 
nature    as  the    documents  to  which  their 
Lordships  were  referring.    There  is  much 
force  in  the  remark   of  the  learned  Sub- 
ordinate Judge  that  the  parties  who  dictat- 
ed the  custom  were  literary  K&yasthas  and 
ijb  was  not  likely  that  the  words  were  used 
loosely.  He  has  further  rightly   laid  great 
stress  upon  the  fact    that    the  position  of 
the  sons-  of  a'deceased  co-sharer  is  described 
as  that  of  "  inalik  "  and  that  the  position  of 
the  widows  of  a  deceased  oo-sharer  who  has 
no  sons  is  also  described  as  that  of  "maZtfc." 
We  agree  with  him  that  it  is  impossible  to 
construe  the  wajib-ul-arz  in  such  a  manner 
as  to  make  the  position  of  the  sons  other 
than  that  of  the  position  of  absolute  owners 
with  a  right  to  transfer,  and  this  being  the 
case,    it  seems  to    us  impossible  to  hold 
that  the  position  of  widows,  when  there  are 
no  sons,  is  other  than  the  positionof  absolute 
owners  with  a  right  of  transfer.  The  learn- 
ed Counsel  for  the  appellant  has  further 
argued  that,  even  if  this  view  be  accepted, 
there  is  nothing  ia  the  wajib  ul-arz  which 
would  £ive  to  the  widow  of  a  deceased  co- 
aharer  in  a  case,  such  as  the    present,  in 
which  he  left  only  one  widow  an  absolute 
estate.    Here  we  are  against  him.    We  can 
only  interpret  the  words  which  we  translate 
if  there  be  no    wife  with    sons    then    the 
4t  wives  of  the  deceased    shall  become  abso- 
lute owners  with  a  right  of  transfer  over  the 
inheritance  of  the  deceased  in  equal  shares11 
as  containing  a  statement  that  where  the 
deceased  co-sharer  bus  left  only  one  wife 
son,  that  wife  became  an  absolute 
with  right  of  transfer  over  the  wholfc 
ty.    This  is  not  an    inference.    The 
plural  includes  the  singular,  and  it  would 
bg  coairary  to  all  right  rules  of  interpreta- 
tion, ia  our  opinion,  to  hold  that  the  custom 
did  aot  affect  a  siagle  wife  without  a  son. 

We  are  now  ma  position  to  consider  the 
point  which  we  have  left  over.  Is  the 
custom  ao  asserted  ambiguous  ?  We  do  not 
find  any  ambiguity.  The  custom  contained 
in,  this  wajib-ul-arz  is  a  custom  which  layd 
di>wn  a  succession  which  in  many  ways  is 
'not  the  succession  provided  by  the  Mitak- 
shara  Law.  The  principle  of  jurabant  is 
contrary  to  the  principle  of  succession  under 
the  Sfitakshara  Law.  The  creation  of  an 
absolute  estate  in  the  widow  is  also  con- 
trary to  the  Mitakshara  Law.  But  there  is 
no  ambiguity.  The  meaning  is  perfectly 
We  cau  now  conclude  our  decision, 


We  find  that  the  custom  asserted  by  the 
defendant-respondent  was  recorded  by  the 
Settlement  Officer,  there  being  no  reliable 
evidence  in  fact  there  being  no  evidence  of 
any  kind- that  the  Settlement  Officer  neglect- 
ed to  perform  his  duty  or  recorded  what  he 
thought  ought  to  be  the  custom  or  'was 
misled  in  recording  the  custom,  that  therd 
is  no  evidence  in  rebuttal  of  the  custdifc 
so  recorded,  and  that  the  words  not  beiiig 
ambiguous  the  evidence  in  thewajib-ul  arz 
alone  is  sufficient  to  establish  the  custom. 
This  custom  governed  not  only  the  pro- 
perty of  the  family  in  the  village  of  Khan- 
pur  Khabura  but  the  property  of  the  fami- 
ly situated  in  other  villages.  Under  this 
custom  Batasa  Kuar  had  the  right  to 
transfer  by  deed  of  gift  the  property  which 
she  did  so  transfer  by  the  deed  of  13th 
October  1905  The  appeal,  therefore,  fails 
and  is  dismissed  with  costs. 

z    K.  Appeal  dismissed, 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPBIAL  No.  1686  OP  1922* 

July  *8,  1924. 

Present: — Mr.  Justice  Jackson. 

KOYYALAMUDI  CHINNAYYA 

AND  ANOTHER— DEFENDANTS  Nos.  1  AND  2 — 

APPELLANTS 

versus 
KOYYALAMUDI  MANGAMMA, 

MINOR,  REPRESENTED  BY  NANDIQAM 

VEERAYYA— PLAINTIFF  No.  1— 
RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  0.  XLI,  r.  £7 
—  Appellate  Court— Additional  evidence,  admission  of 
—Finding  of  fact -Appeal,  second—Interference  by 
Hi&h  Court 

Where  an  Appellate  Court  has  relied  for  its  decision 
upon  a  document  which  is  inadmissible  in  evidence, 
a  Court  of  second  appeal  would  be  j  ustified  in  remand-' 
ing  the  case  for  decision  to  the  Appellate  Court 
with  a  direction  to  exclude  that  document  from  iti 
consideration  But  where  an  Appellate  Court  although 
it  admitted  as  additional  evidence  certain  documents 
in  appeal  did  not  base  its  finding  upon  them>  a 
finding  of  fact  arrived  at  by  that  Court  will  not  he 
interfered  with  by  the  High  Court  in  second  appeal. 
[p.  662,  col  2,  p  663,  col  1.] 

Second  appeal  against  a  dfecree  of  the 
Court  of  the  Additional  Subordinate  Judge; 
Ellore,  in  A.  8.  No.  181  of  1921,  preferred 
against  a  decree  of  the  Court  of  the  Ad- 
ditional District  Munsif,  Ellore,  in  0,  Sf 
No.  262  of  1920. 


662 


cHimam  ».  *OYYAUMUDI  MAKGAMMA.         [92 1.  0. 1926] 


Mr.  P.Bapuraju,  for  the  Appellants. 

Mr,  V.  Suryanarayana,  for  the  Hespond- 
ejits. 

JUDGMENT*— This  is  a  second  ap- 
peal from  the  decree  of  the  Court  of  the 
Additional  Subordinate  Judge  of  Ellore  in 
A,  8.  No.  181  of  1921  preferred  against  the 
decree  in  O,  8.  No.  262  of  1920  on  the  filer 
of  the  Additional  District  Munsif  of  Ellore. 

The  lower  Appellate  Court  decreed  the 
suit  and  defendants  Nos,  1  and  2  appeal. 

The  plaintiffs  sue  for  recovery  of  posses- 
sion of  certain  properties  and  for  mesne 
profits  alleging  that  the  properties  fell  to 
the  share  of  the  1st  plaintiff's  husband  in  a 
partition  held  in  1911,  and  the  question 
whether  there  was  such  a  partition  (Issue 
No.  1)  has  been  decided  in  the  affirmative  by 
the  lower  Appellate  Court.  It  is  a  question 
of  fact  which  ordinal  ily  cannot  be  raised 
in  second  appeal  but  the  appellants  con- 
tend that  the  lower  Appellate  Court  wrong- 
fully admitted  as  evidence  the  documents 
Exs.  P,  P  (1)  and  P(2)  and  was  influenced 
by  these  documents  without  giving  the  ap- 
pellants an  opportunity  of  showing  that 
they  were  forged.  The  District  Munsif  in 
his  4th  paragraph  rejected  these  documents 
with  the  following  remarks:  "It  is  said  that 
subsequent  to  his  death  partition  lists  were 
drawn  up  setting  forth  the  properties  which 
had  "been  allotted  to  each  of  the  brothers. 
These  partition  lists  were  sought  to  be 
exhibited  iu  the  case  but  as  they  purport- 
ed to  be  deeds  of  partition  and  not  mere 
partition  lists  and  as  they  were  unstamped 
and  unregistered  they  were  not  allowed  to 
be,filed  in  the  case".  In  his  7th  paragraph 
the  learned  Subordinate  Judge  settles  the 
question  of  rejection  of  these  lists  thus: 
"On  going  through  the  lists,  I  find  that  the 
language  used  does  not  amount  to  a  deed 
of  partition  declaring  a  divided  status  and 
allotting  properties  to  the  several  co-parce- 
ners. And  the  evidence  shows  that  the 
actual  partition  took  place  a  year  before  the 
lists  were  prepared  and  these  lists  were 
simply  notes  as  regards  the  property  that 
fell  to  each  shaie.  I  do  not  think  the  lower 
Court  is  right  in  rejecting  these  documents*'. 
Accordingly  he  admitted  them  as  being 
simply  notes  asregards  the  properties  which 
fell  to  each  share.  If  they  are  nothing  more 
Jhan  that,  the  documents  can  have  no 
evidentiary  value.  Prosecution  Witness 
So4.  I,  ,1st  plaintiff's  next  friend,  merely 
'S  that  partition  lists  were  prepared 
there  is  no  evidence  as  to  who  wrote 


or  signed  Ex-P  series.  I  am  asked  to  find 
that  the  learned  Subordinate  Judge  as- 
sumed, when  he  admitted  these  docu- 
ments that  they  were  signed  by  the 
persons  by  whom  they  purported  to  te^ 
signed  and  treated  them  as  important  ad- 
missions by  the  defendants  that  there  had 
been  a  partition.  Of  course,  if  he  had  made 
any  such  assumption  without  taking  any 
evidence  in  the  matter,  this  case  would  ob- 
viously have  to  be  remanded.  But  I  do  not 
think  that  he  did  anything  of  the  sort.  I 
gather  that  he  said  the  documents  might 
be  filed  as  mere  notes  and  then  considered 
whether  apart  from  these  documents  there 
was  sufficient  evidence  of  partition.  He 
refers  to  the  evidence  of  P.  Ws.  Nos.  1  and 
2  andExa.  A  and  A  (1).  He  considers  the 
discrepancies  in  the  evidence  of  P.  Ws.Nos.. 
1  and  2  but  notes  that  the  kist  has  been  paid 
separately  as  appears  from  Kxs.  C  and  D 
series.  lie  finds  ample  evidence  as  regards 
the  separate  enjoyment  of  the  property  and' 
he  observes  that  the  evidence  of  defendants' 
was  discredited  by  the  lower  Court. 

In  his  summary  of  the  evidence  he  makes 
no  mention  of  Exs.  P,  P  (1)  and  P  (2)  or  of 
any  admission  contained  therein.  I  find 
that  he  admitted  them  for  what  they  are 
worth  and  as  in  that  stage  of  the  proceedings- 
they  were  worth  nothing  at  all  he  dismissed, 
them  from  his  mind.  Therefore,  I  do  not- 
find  that  the  lower  Court  considered  Exs.  P,' 
P(l)  and  P  (2)  or  was  in  any  way  influenced 
by  them.  The  finding  of  fact  cannot  be 
assailed  on  that  ground. 

The  cases  cited  by  the  appellants  are  dis- 
tinguishable. In  Govindan  Nair  v.  Govin- 
dan  Nmr  (1)  it  was  held  that  the  Judge  did1 
not  refer  to  two  documents  of  importance 
and,  therefore,  the  case  was  returned  for  a 
fiesh  finding;  but  in  the  present  case  the 
Judge  referred,  if  at  all,  to  documents  of  no' 
importance.  In  SwnitraKuer  v.  Ram  Kair' 
Chowbey  (2)  it  was  held  that  "Where  an 
Appellate  Court  has  relied  for  its  decision 
upon  a  document  which  is  inadmissible  in 
evidence,  a  Court  of  second  appeal  would 
be  justified  in  lemanding  the  case  for  deci- 
sion to  the  Appellate  Court  with  a  direction 
to  exclude  that  document  from  its  considera- 
tion". But  here  the  Ex.  P  series  are  clearly 
admissible  in  evidence  if  they  are  treated 

(1)  15  Ind.  Cas  103;  (1912)  M  W.  N  821 

(2)57  Ind  Cas   561,  5  P  L    J   410;  1  P,  L.  T.  702; 

(1921)  Pat.  17. 
(3)  28  Ind,   Cas.  11;    (1914)  M,  W,  N,  795;  1  Lf  W, 

771, 


0.  1926] 


NARAYAN  V.  DHUDA&AI. 


663 


simply  as  notes  and  as  I  have  observed  above 
the  Court,  as  a  matter  of  fact,  did  not  rely 
upon  them  in  coming  to  the  decison.  Anya 
Muthu  Pillai  v.  Sennaya  Pillai  (3).  Here 
the  Court  had  proceeded  very  largely  on  a 
consideration  of  evidence  admitted  during 
the  hearing  of  the  appeal  in  contravention 
of  O.  XLI,  r.  27,  of  the  C.  P.  C.,  which  again 
has  no  application  to  a  case  where  the 
Court  has  properly  admitted  evidence,  and 
as  a  matter  of  fact,  has  not  proceeded  on 
the  consideration  of  it. 

In  Ujir  All  Sirdar  v.  Shadhai  Behara  (4) 
it  is  laid  down  "The  High  Court  cannot,  on 
second  appeal,  look  at  the  evidence  to 
decide  if  the  remaining  evidence  in  a  case 
after  that  which  has  been  improperly  ad- 
mitted, is  rejected,  is  sufficient  to  warrant 
the  finding  of  the  Court  below'1. 

This  principle  will  apply  if  agreed  with 
the  appellant's  assumption  that  the  Court 
below  had  been  materially  influenced  by 
Ex  P  series  and  had  regarded  them  as  con- 
taining important  admissions  by  the  defend- 
ants. But  since  I  hold  that  the  Court  below 
paid  no  attention  to  Ex.  P  series  and 
certainly  did  not  regard  them  as  containing 
admissions,  there  is  no  need  to  decide  whe- 
ther the  remaining  evidence  is  sufficient  to 
warrant  the  finding  of  the  Court 

On  all  the  questions  raised  the  second 
appeal  fails  and  is  dismissed  with  costs. 

v.  N.  v.  Appeal 


M)  68  In-1.  Gas.  10D3,    33  C   L  J,  182,  (1022)  A,  I.  R, 
(0  )  185 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

Fifisr  CIVIL  APPEAL  No.  28-B  OP  1923 

September  30,  1924. 

Present:— Mr.  Baker,  J.  0. 

NARAYAN  AND  OTHERS— DEFENDANTS 

— APPELLANTS 

versus 
DHUDABAT — PLAINTIFF — RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908\  0  XXII,  r. 
4 — Mortgage  suit -Joint  mortgagors— Death  of  one 
mortgagor — Legal  representatives  not  brought  on  record 
— Abatement,  extent  of —Hindu  Law — Joint  family — 
Mortgage  by  co-parcener — Foreclosure  decree  —Birth  of 
son  to  mortgagor \  effect  of-— Partition  suit  by  purchaser 
— Procedure, 

*  The  failure  in  a  mortgage  suit  to  bring  on  record 
the  heirs  of  one  of  the  joint  executants  of  the  mort- 
gage-deed, who  has  died  during  the  pendency  of  the 


suit,  does  not  result  in  the  abatement  of  the  suit  as 
a  whole,  but  only  as  legards  the  shaie  of  the  deceased 
whose  heirs  would  not  be  bound  by  the  decree  passe^ 
in  the  suit  [p,  66 i,  col  2] 

Where  a  Hindu  co-parcener  has  mortgaged  hia 
share  m  the  family  property  the  birth  of  a  son  to  him, 
after  a  final  foreclosure  decree  has  been  passed 
against  him  at  the  suit  of  the  mortgagee  does  not 
operate  retrospectively  and  cannot  i  educe  the  share 
of  the  co-paicener,  the  whole  of  which  would  pass  to 
the  mortgagee-decree-holder  [p  665,  col  1  ] 

The  purchasei  of  an  unascertained  shaie  of  joint 
family  property  must  bring  a  suit  for  partition  in 
which  the  whole  of  the  joint  family  propeity  should 
be  included  and  all  necessary  pai  ties  joined  In  a 
suit  of  that  nature,  the  Couit  in  making  the  partition 
would  ended voui  to  give  effect  to  the  alienation  and 
so  to  marshal  the  family  pioperty  among  the  co- 
parceners as  to  allot  that  poition  of  the  family  pro'-* 
perty  01  so  much  of  it  ns  may  be  just  to  the  puichasei, 
[p  665,  col  2  J 

Ishrappa  (lanap  lleqd?  v  Krishna  Putt  a  Shankar 
]fegde,Mlnd  Oas  833,  21  Bom  L  R  428,  48  B  925; 
(1922)  AIR  (B)  413  and  Dhnlabhai  Dabhai  v  Lala 
Dhula,M  Ind  Oas  115,  4(5  B  28,  23  Bom  L  R  777, 
(1922)  A  IK  (B  )  137,  relied  on 

Appeal  against  a  decree  of  the  Sub* 
Judge,  Yeotmal,  dated  the  31st  October 
1923,  in  Civil  Suit  No  22  of  1922. 

Mr.  M.  B.  Niyogi,  for  the  Appellants. 

Mr.  B  R  Pendharkar  and  R  R  Jaywantv 
for  the  Respondent 

JUDGMENT*— This  appeal  raises 
several  points  of  law.  Defendants  Nos.  4 
and  5,  Tukaram  and  Govind,  are  brothers* 
Defendants  Nos  1  and  2  are  sons  of  defend- 
ant No  4  and  defendants  Nos.  3  and  6  arq 
$ons  of  defendant  No  5. 

Defendants  Nos.  4  and  5  and  Laxman,s,on. 
of  defendant  No.  4,  mortgaged  their  shares 
of  the  joint  family  property  to  plaintiff's 
father  Hiralal  in  1912.  Hiralal  brought  a 
suit  on  the  mortgage  and  obtained  a  pre- 
liminary decree  on  llth  November  1915. 
Two  days  before  the  passing  of  this  decree, 
defendant  Laxman  died  and  no  application 
was  made  for  bringing  his  heirs  on  record. 
Subsequently  Hiralal  died  and  the  plaintiff, 
who  is  his  heir,  was  brought  on  record.  A 
final  decree  for  foreclosure  was  passed  oa 
6th  August  1918. 

Defendants  Nos.  1  and  2,  who  are  sons  of, 
defendant  No.  4,  and  defendant  No.  3,  who, 
is  son  of  defendant  No.  5,  filed  Suit  No.  16 
of  1918  against  plaintiff  on  the  allegation, 
that  the  decree  in  the  mortgage  suit  was^ 
obtained  by  fraud  and  was  not  binding  oil 
them,  and  were  successful,  their  shares  in 
the  property  being  held  not  subject  to  the, 
decree  in  the  mortgage  suit. 

The  plaiixtifE  being  obstructed  in  getting 
possession  of  the  property  foreclosed, 
brought  the  present  suit  for  partition 


CC4 


NABAYAN  V,  DHtJDABAI. 


possession  of  the  property  mortgaged  by  the 
original  mortgagors* 

It  was  contended  on  behalf  of  the  defend- 
ants that  the  heirs  of  Laxman  not  having 
'bean  brought  on  record  within  time  in  the 
mortgage  suit,  the  whole  suit  should  have 
abated  and  must  in  any  case  abate  as  regards 
Laxman1s  share  which  was  2  annas,  and 
that  the  share  of  defendant  No,  5  Qovind 
was  lessened  by  the  birth  of  a  son  to  him  on 
l3th  November  1919.  This  son  is  Wasudeo, 
defendant  No.  6  in  the  suit. 
i  Defendants  admitted  the  plaintiff's  claim 
to  the  extent  of  the  share  of  Tukaram  which 
is  2  annas  and  of  Qovind  which  is  2  annas 
S  pies, 

The,First  Class  Subordinate  Judge, Yeotmal, 
held  that  the  decree  in  the  mortgage  suit 
No.  14  of  1915  was  not  a  nullity  because 
Laxman's  heirs  were  not  brought  on  record 
and  that  it  abated  to  the  extent  of  Laxman's 
share  only,  arid  that  plaintiff  got  6  annas 
share  by  the  said  decree,  viz.  4  annas  in  the 
share  of  defendant  No.  5  Govindand2annas 
in  the  share  of  defendant  No.  4  Tukaram, 
and  that  she  should  be  put  in  possession  of 
her  share,  preferably  out  of  the  property 
mentioned  in  8ch,  A,  by  partition. 

Defendants  appeal  against  this  decree. 

Th&-  principal  contention  raised  by  the 
appellants  is  that  the  whole  mortgage  suit 
should  have  abated  as  Laxman's  heirs  were 
not  brought  on  record. 

They  rely  on  Subramania  Aiyar  v.  Vaithi- 
natha  Aiyar  (J).  That  is  a  case  of  a  sole 
defendant  and  will  not  apply  to  the  present 
ease.  ; 

-  It  is  contended  that  when  the  rights  of 
patties  are  joint  and  indivisible,  the  absence 
of -one  of  such  parties  will  vitiate  the  whole 
trial.  When  a  defendant  dies  and  his 
rights  survive  to  his  legal  representative 
ine*  absence  of  his  legal  representative 
will  vitiate  the  "suit. 

a>  Reference  is  made  to  Raj  Chunder  Sen  v. 
Ganga  Das  Seal  (2),  this  was  a  partnership 
suit  and  so  the  cause  of  action  did  not 
against  the  remaining  respondents 
d  to  Imam-ud-Din  v.  Sadarat  Rai 
(}.  -  --In  that  case  it  was  admitted  that  the 
cfruse  of  action*  did  not  survive  against  the 
o$i«r  respondents, 

o*<Dn  behalf  of  respondent  it  is  contended 
that  iLtobaii's  -father  Tukaram  was  already 
dtrrefcord  as  executant  and  was  represent- 

(1)31  Ind  Caa  198, -38  M  682, 
(W  %  Q-  «M  A  L.  J.,  445,  8  C  W  N  442,   31  I.  A. 
71-  14"  M,  L  ik  1 17;  8  Star  P.  0,  J.  623  (P  0,). 
(3)  5  W,  Cas.  897.;  32  A.  301;  7  A.  L.  J,  ?28f 


(.92  I.  0. 1026] 

ing  the  joint  family  and  that  it  was  held 
in  Rameshwar  v.  Bhangilal  (4),  that  th'e 
result  of  a  current  of  decisions  is  that  when 
a  Hindu  father,  a  member  of  a  joint  family, 
sues  or  is  sued,  it  is  to  be  presumed  that  he 
sues  or  is  sued  in  a  representative  capacity*. 
T  may  remark  that  this  presumption  does 
not  seem  to  me  to  arise  here.  Laxman;  the 
son,  was  one  of  the  executants  of  the  mort- 
gage and  was  made  a  defendant.  The  other 
sons,  defendants  Nos.  1  and  2,  were  not 
joined  and  have  subsequently  succeeded  in 
getting  their  shares  released  from  the  mort- 
gage. It  is  not  stated  in  the  plaint  in  Suit 
No.  14  of  1915  that  Tukaram  was  sued  as 
manager. 

The  respondent  further  relies  on  Moti  v. 
Kanhya  (5),  Sheo  Shanlcar  Ram  v.  Jaddo 
Kunwar  (6)  and  Krishnanand  Nath  Khare 
v.  Raja  Ram  Singh  (7) 

These  are  all  cases  in  which  admittedly 
the  manager  was  sued,  and  I  am  doubtful 
if  they  will  apply  to  a  case  where  Laxman 
was  himself  an  executant  of  the  bond  and 
was  made  a  party  to  the  suit. 

Assuming  however  that  Laxman's  heirs 
were  necessary  parties,  the  failure  to  join 
them  as  defendants  would  not  result  in  the 
dismissal  of  the  whole  suit. 

I  have  referred  to  Gour's  Transfer  of 
Property  Act,  Vol  II,  paras,  2151-2,  on 
this  question  and  the  conclusion  arrived  at 
is  that  the  effect  of  non- joinder  is  to  leave 
the  interests  of  the  party  omitted  unaffected. 

This  is  the  view  in  Madras:  cf.  Sivathi 
Odayan  v.  Ramasubbayyar  (8),  and  is  sup- 
ported by  the  Privy  Council,  cf.  Umes 
Chunder  Sircar  v.  Zahur  Fatima  (9)  and 
Hari  Kissen  Bhagat  v.  Veliat  Hossein  (10). 

In  these  circumstances  I  agree  with  the 
finding  of  the  lower  Court  that  the  suit  on 
the  mortgage  would  not  abate  as  a  whole, 
but  only  as  regards  the  share  of  Laxtnan, 
whose  heirs  are  not  bound  by  the  decree 
against  him.  It  is  true  that  one  of  the 
heirs  was  his  father  defendant  No.  4,  but 
his  brothers  defendants  Nos.  1  and  2  were 
not  on  record.  The  share  of  Laxman  has,  as 

(4)  32  Ind  Cas  996;  12  N.  L  R  45 

(5)  4  Ind,  Gas  797,  5  N.  L  R.  181  at  p.  187. 

(6)  24  Ind.  Cas  504,  36  A  383;  18  C  W  N  968;  16 
M.  L  T.  175,  (1914)  M.  W.  N.  593;  1  L  W.  645;  20  C.  L 
J_  282,  12  A.  L.  J.  1173;  16  Bom.  L.  R  810,  41  I  A  216 
(P  C ) 

(7)  66  Ind  Cas,  150,  44  A.  393;  20  A  L.  J.  333;  (1922) 
A.  I.R  'A)  116 

(8)  21  M  61,  8  M  L.  J.  21;  7  Iiid.  Dec  (N.  s )  402 

(9)  18  C  16 1,  17  L  A  201;  5  S«.  P.  C  J,  9  lad,  pec, 

(N,  8  )  110  (P,  0.).  ' 

(10)  30  C.  755;  7  0,  W.  N.  723, 


!  L  0, 19?6J 


8ARDA  BUX  SINGH  V.  KANDHJA  BUX. 


665 


a  matter  of  fact,  been  excluded  from  the 
mortgage, 

The  next  point  raised  on  behalf  of  the 
appellants  is  that  the  share  of  defend- 
ant No.  5  must  be  diminished  by  the  birth 
of  a  son  to  him  (defendant  No.  6).  He  was 
not  born  at  the  date  of  the  mortgage- decree, 
but  he  was  alive  at  the  date  of  the  present 
Suit  for  partition. 

The  learned  Pleader  for  appellants  relies 
on  Rqmnath  v.  Sitaram  (11)  and  Nan  jay  a 
Mudali  v.  Shanmuga  Mudali  (12),  and  it  is 
contended  that  the  alienor's  share  fluctuates 
by  birth  and  death. 

In  Civil  Suit  No.  16  of  1918  it  has  been 
held  that  what  was  passed  by  the  mortgage 
Was  the  right,  title  and  interest  of  the  exe- 
cutants, and  the  shares  must  be  determin- 
ed at  the  date  of  partition.  The  effect  of 
the  birth  of  Wasudeo  defendant  No  6  is  to 
reduce  the  share  of  his  father  by  Re  02  8 

It  is  also  contended  that  in  any  case  at 
the  date  of  the  alienation  the  wives  of  both 
Tukaram  and  (3ovind  (defendants  Nos  4 
and  5)  were  living,  and  would  have  been 
entitled  to  a  share  on  partition. 

It  is  not  necessary  to  go  into  this  last 
question  which  raises  a  difficult  point  of 
law  as  to  the  light  of  a  wife  to  get  a  share 
on  partition  during  the  life  of  her  husband, 
because  this  point  was  never  raised  in  the 
pleadings  and  we  do  not  know  whether  at 
the  date  of  the  mortgage  defendants  Nos.  4 
and  5  had  wives  living. 

With  regard  to  the  first  point,  the  birth 
of  defendant  No.  6  as  affecting  his  father's 
6hare,  it  is  to  be  noted  that  the  foreclosure 
decree  was  passed  in  1918  and  possession  was 
actually  given  to  plaintiff  in  July  11H9, 
Wasudeo  defendant  No.  6  was  born  in  No- 
vember 1919  after  his  father's  right  in  the 
property  had  already  passed.  He  cannot, 
therefore,  question  it:  cf.  Sardar  Singh  v. 
Ajit  (13)  and  Jairam  v  Venkat  rao  (14). 

The  subsequent  birth  of  Wasudeo  does 
not  operate  retrospectively.  It  is  contend- 
ed on  behalf  of  the  appellants  that  they  do 
riot  wish  to  challenge  the  alienation  and 
they  lely  on  the  observations  in  Nanjaya 
Mudali  v  Shanmuga  Mudali  (11).  But  in 
that  case  there  had  been  no  decree.  In  the 
present  case  the  interests  of  defendant  No.  5 

(11)  74  Ind  Cas.  81,  19  N.  L  R    147;  (1923)  A   I.  R. 


(12)  22  Ind.  Cas    555,     26  M    L,  J.  576t  15  M.  L.   T 
186;  (1914)  M  W.  N  356;  3  M.  8684 
4fl3)  2  0  P.  R.  141. 
(14)  65  Ind,  Gas  658;  (1922)  A.  I  R  (N.)  101;  5  N,  L. 


had  passed  to  the  plaintiff  before  the  birth 
of  Wasudeo,  who  therefore  acquired  only 
an  interest  in  the  family  property  as  it 
stood  at  the  date  of  his  birth. 

I  do  not,  therefore,  see  any  reason  to  differ 
from  the  finding  of  the  lower  Court  6n  this 
point. 

The  next  point  raised  is  that  plaintiff 
is  not  entitled  to  get  anything  out  of  ttye 
property  which  was  not  mortgaged,  that  ie 
out  of  the  property  mentioned  in  8ch,  0. 

It  was  contended  by  the  defendants  th^t 
in  a  partition  suit  all  the  property  must 
be  brought  into  hotch-pot  and,  theiefore, 
the,  property  mentioned  in  Sch.  A  was 
added  The  course  adopted  by  the  lower 
Court  is  precisely  that  laid  down  in 
Ishrappa  Ganap  Hegde  v.  Krishna  Putta 
Stiankar  Hegde  (15),  which  is  a  case  relied 
on  by  the  appellants,  mz^  that  the  pur- 
chaser of  an  unascertained  share  of  joint 
family  property  must  bring  a  suit  for  par- 
tition in  which  the  whole  of  the  joint 
family  property  should  be  included  and  all 
necessary  parties  joined.  In  a  suit  of  that 
nature  the  Court  in  making  the  partition 
would  endeavour  to  give  effect  to  the  alienpr 
tion  and  so  to  marshal  the  family  properly 
among  the  co  parceners  as  to  allot  that 
portion  of  the  family  estate,  or  so  much 
of  it  as  may  be  just,  to  the  purchaser4  cf. 
also  Dhulabhai  Dabhai  v.  Lala  Dhula  (16). 
This  is  what  has  been  done  in  the  present 
case. 

The  result  is  that  the  appeal  fails  and  is 
dismissed  with  costs. 

z  K.  Appeal  dismissed.. 

(15)  67  Ind    Cas    833,   24  Bom  L  R.  428,  46  &  925; 
(1922)  A  I  R  (B  )  413 

(16)  64  Ind   Cas    115,46    B    28,  23  Bom.  L.  R,  777, 
(1922;  A  I  K   (B )  137. 

OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  25  OF  1925. 

November  25,  1925. 

Present: — Mr,  Justice  Raza. 

SARDA  BUX  SINGH— DBPBNDAXT— 

APPELLANT 

versus 
KANDHIA  BUX— PLAINTIFF— RESPONDENT. 

Mortgage— Redemption— Amount  in  dispute— Absence 
of  tender-  Dismissal  of  suit,  whether  justified— Interwt 
— Contract  rate  excessive —Court,  whether  can  reduce, 
interest 

Where  the  amount  to  be  tendered  for  redemption  ia 
in  dispute  the  mortgagor's  suit  for  redemption  cannot 
be  dismissed  on  the  ground  that  no  tender  was  macjtv 
fp  686,  col  11 

^Barma  Bakhshv  Surcy  Singh  50.  0,  127,  referred 
to 


666 

Karim  B&khah  v.  Idu  Shah, 
I/  J  334,  distinguished. 

A  Court  has  no  power  to  reduce  the 
rate  Jof  interest  solely  on  the  ground 
excessive,  [p  660,  col  2.] 

'.Fazal  Affim  v  Girdhan  Lai,  69  Ind  Gas  657, 
k,  J  442,  (1923)  A.  I.  R.  (0 )  8,  referred  to. 

Mata  Din  v,  Ahmad  Aht  24  Jnd  Gas.  874,  1  D.  L.  J. 
363,  distinguished. 

Second  appeal  against  a  decree  and 
judgment  of  the  Sub-Judge,  Partabgarh, 
dated  the  26th  September  1924,  setting  aside 
that  of  the  Munsif,  Partabgarh,  dated  the 
13th  May  1924. 
-  Mr.  Radha  Krishna,  for  the  Appellant. 

Mr,  Ganga  Dayal  Khan,  for  the  Respond- 
ent. 

JUDGMENT* — This  appeal  arises  out 
of  a  redemption  suit.  The  plaintiff  execut- 
ed a  possessory  mortgage  in  favour  of  the 
defendant's  ancestor  in  respect  of  some  trees 
for  Rs,  10  bearing  interest  at  IH  6  4-0  per 
cent,  per  mensem,  on  the  7th  July  1897.  The 
plaintiff  sued  to  redeem  the  mortgage 
without  payment  of  any  sum  on  the  allega- 
tion that*  the  mortgage  money  which 
amounted  to  Rs  10  only  was  paid  off  by  the 
appropriation  of  five  mango  trees  which 
had  been  cut  by  the  mortgagee.  The 
defence  was  that  no  trees  were  cut,  that 
Rs.  210  5-0  were  due  to  the  defendants  on  ac- 
count of  principal  and  interest  and  that  the 
suit  was  not  maintainable  as  no  tender  was 
made  in  the  khali  fasl.  The  first  Court 
dismissed  the  suit  on  the  ground  that  no 
tender  was  made  in  the  khali  fasl.  The 
learned  Subordinate  Judge  decreed  the 
plaintiffs  claim  for  redemption  on  payment 
of  Rs.  5  only.  The  defendant  has  appealed 
challenging  the  findings  on  the  points  de- 
cided against  him.  I  am  not  prepared  to 
accept  the  contention  that  no  cause  of  ac- 
tion for  redemption  arose  in  the  favour  of 
the  respondent  because  the  mortgage-money 
was  not  tendered  in  khali  fasl,  as  point- 
ed out  in  the  case  of  Barma  Bakhsh  v. 
Suraj  Singh  (L):  "Where  there  is  a  real 
dispute  as  to  the  amount  due  and  the  mort- 
gagor tenders  what  turns  out  to  be  an 
insufficient  amount  or  makes  no  tender  at 
all,  his  suit  for  redemption  should  not  be 
dis'missed  on  the  ground  that  no  tender 
was  made.'1  In  this  case  no  tender  could 
have  been  made  for  the  amount  of  the 
mortgage-money  was  in  dispute.  The 
amount  of  interest  was  in  dispute  and 
the  appropriation  and  cutting  of  five  trees 
was  also  in  dispute.  The  ruling  in  Karim 

i)  a  v,  C.  187, 


SARDA  BUX  SINGH  V.  KANDHIA  BUX. 
40  Ind   Gas   381,  4  O 


contractual 
that    it    is 


90. 


[92  L  0. 1926J 

Hakhsh  v,  Idu  Shah  (2)  cannot  help  the 
defendant  in  this  case.  The  mortgaged 
property  in  that  case  consisted  of  certain 
agricultural  plots.  The  mortgage  in  the 
present  suit  is  a  mortgage  of  trees  only. 

The  learned  Subordinate  Judge  has  found 
that  the  mortgagee  cut  down  some  trees 
of  the  value  of  Rs.  5  (so  far  as  the  plaintiff^ 
share  is  concerned)  and  should  account  for 
the  sum.  The  finding  on  that  point  has 
not  been  questioned  in  this  appeal.  The 
appellant  contends  however  that  he  is  en- 
titled to  the  interest  claimed,  under  the 
terms  of  the  mortgage  deed  in  suit.  I  have 
read  the  deed  in  suit,  Ext  A-l,  carefully.  In 
my  opinion  the  defendant's  contention 
must  be  accepted.  The  deed  shows  clearly 
that  the  mortgage  was  executed  for  Rs.  10 
bearing  interest  at  Rs.  6-4  per  cent,  per 
mensem.  The  mortgagee  was  allowed  to 
take  the  produce  of  the  grove  and  it  was 
further  provided  by  the  deed  that  the  mort- 
gage would  be  redeemed  on  payment  of  the 
principal  money  together  with  interest  at 
the  stipulated  rate  mentioned  above  in  any 
khali  fasl.  I  do  not  agree  with  the  learned 
Subordinate  Judge*  that  interest  at  the  rate 
stipulated  in  the  deed  was  to  be  charged 
only  when  the  mortgagee  lost  the  usufruct 
of  the  trees  mortgaged.  The  rate  of  in- 
terest is  of  course  excessive  but. the  Court 
cannot  help  the  plaintiff  when  the  deed 
clearly  provides  for  payment  of  interest  at 
the  rate  in  question,  at  the  time  of  redemp- 
tion. As  pointed  out  in  Fazal  Azim  v. 
Girdhari  Lai  (3;  a  Court  has  no  power  to 
reduce  the  contract  rate  of  interest  solely 
on  the  ground  that  it  is  excessive. 

The  respondent's  learned  Counsel  has 
referred  to  the  ruling  in  Mata  Din  v.  Ahmad 
All  (4)  but  that  ruling  is  inapplicable  to 
this  case.  The  mortgagee  is  in  possession 
of  the  mortgaged  property  and  he  claims 
interest  under  the  terms  of  the  deed.  I  see 
no  reason  why  the  deed  should  not  be 
enforced.  The  plaintiff  should  have  to  pay 
Rs.i215-5-0  if  he  wants  to  redeem  the  pro- 
perty in  suit. 

I  allow  the  appeal  and  setting  aside  the 
decree  of  the  lower  Appellate  Court  decree 
the  plaintiff's  claim  for  redemption  on  pay- 
ment of  Rs  215  5  0.  The  amount  should 
be  paid  within  six  months  from  this  date, 
i  e.,  on  or  before  the  25th  May  1926.  If 

(2)40  Ind  Gas  381;  40  L  J.334, 

(3)  60  Ind  Gas.  657;  90  L  J.  442  (1923>  A.  L  R, 
CO.)  8 

(I)  24  Ind.  Gas  874;  1  0  L  J  263- 


MOOLJI  MURAkJI  SL'KDERJI  v.  PINTO. 


[921.  0. 1926J 

such  payment  is  not  made  on  or  befoie  the 
above  mentioned  date  the  mortgaged  pro- 
perty shall  be  sold  Parties  will  bear  their 
own  costs  m  this  Cburt  and  also  in  the  lower 
Courts. 
0.  H,  Appeal  allowed. 


6C7 


RANGOON  HIGH  COURT. 

CIVIL  REVISION  No  201  OP  1924. 

May  14,  1925 

Present : — Mr.  Justice  Das 
MAUNG  PO  SEIK  AND  ANOTHER— 
APPELLANTS 
versus 

U  NANDIYA  AND  ANOTHER — RESPONDENTS 
Civil  Procedure  Code  (Act  V  of  1008),  0  XXIt  r 
97—  Execution  of  decree~~P  ^session,  delivery  oi-~  In- 
vestigation in  anticipation  of  olshvctwn,  legality  vf 
Rule  1)7  of  0  XXI,  0  V  0  ,  contemplates  the  Cuint 
ordeiing  investigation  aflei  the  Bnilift  has  been  ob- 
structed in  giving  popec&fiion  m  tonns  of  the  donee 
Where,  however,  a  person  from  whom  obstiuction  is 
apprehended  puts  in  an  application  to  the  Court 
claiming  that  the  properly,  whose  possession  has  been 
ordered  to  be  delivered  to  the  deciec-lioldei ,  is  his 
property  aiid  that  he  is  not  bound  by  the  deciee, 
there  is  nothing  wiong  in  the  Coint  anticipating  the 
Qbstmction  and  ordeimg  an  investigation  undei  r 
97ofO  XXI 

Civil  revision  against  an  order  of  the 
Township  Court,  Maubin,  in  C.  E.  No  293 
of  1924 

Mr.  The  Tun,  for  the  Appellants, 
Mr.  TheinMaung.ioi  the  Respondents 
JUDGMENT.— In  this  case  the  peti- 
tioner obtained  a  decree  for  possession  of  a 
piece  of  land  and  of  a  kyauny  standing  on 
the  same  land  The  deciee  was  by  consent, 
and  the  defendant  in  that  suit  consent- 
ed to  the  Court  ordeiing  the  demolition 
of  this  kyaunghy  a  Court  Official  The 
plaintiff  then  applied  for  execution  of 
the  decree  and  for  a  direction  ordering  the 
Bailiff  to  demolish  the  kyaung.  The  Court 
issued  an  ordinary  delivery  order.  After 
that  the  Court  was  informed  that  the 
kyawng  in  question  was  in  possession  of 
certain  pongyis  and  that  the  said  pongyis 
would  shortly  put  in  an  application  con- 
testing the  plaintiff's  right  to  take  posses- 
sion and  demolish  this  kyaung.  On  that 
application  the  Court  stayed  the  execution 
of  the  order  passed  by  it  and  subsequently 
the  respondents  put  in  an  application 
claiming  the  kyaung  to  be  their  property 
and  stating  that  they  are  not  parties  to 
that  suit  and  that  the  decree  in  that  car>e 
was  not  binding  on  them. 

The  Court  thereupon  held  that  this  is  a 
proper  case  for  investigation  under  O.  XXI, 


r,  97,  It  is  true  that  Order  contemplates 
the  Court  ordering  the  investigation  after 
the  Bailiff  has  been  obstructed  to  giving 
possession  in  terms  of  the  decree.  But  I 
do  not  think,  under  the  circumstances  of 
this  case,  that  the  Court  was  wrong  in 
anticipating  the  obstruction  and  ordering 
an  investigation  under  0.  XXI,  r.  97 

1,  therefore,  dismiss  the  application  with 
costs. 

z.  K.  Application  dismissed. 

SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  APPEAL  No  2  OP  1925. 

November  6,  1925. 

Present  —Mr  Rupchand  Bilaram,  A.  J  C 
MOOLJI  MURAUJISUNDERJI— 

APPELLANT 

versus 
M  C  PINTO  AND  ANOTHER— RESPONDENTS. 

CohtiactAct(IX  of  1872],  s  132  Evidence  Act  (I 
of  1\72),  s  92-  Co-executants  of  negotiable  instru- 
ment—  Varol  eiidence  to  pioie  that  one,  of  them  uo.8 
surety,  admissibility  of  > 

VVheie  two  peisons  join  together  m  executing  a 
bi)l  01  a  promissory-note  making  themselves  jointly 
and  severally  liable  therefor,  there  19  nothing  to 
prevent  one  of  them  from  proving  by  paroj  evidence 
that  lie  is  the  suiety  and  the  other  the  principal 
debtoi,  provided  that  he  does  not  thereby  intend  to 
affect  the  right  of  the  creditor  to  demand  immediate 
payment  fiom  eithei  or  both  of  the  co-obligors  or  joint 
promisors  [p  668,  col  2} 

Pooleyv  Harradme,  (1857)  110  R  R  666,  7  E.  &  B, 
4.31,  20  L  J.  Q  B  156,  3  Jur  (v  s )  488,  5  W  R  405; 
119  E  R  1307  andCcrmai  Bank  of  India  v  Nadir- 
thaha  A/e/Utt,  79  Ind.  Cds  445,  (1924)  A  I  R  (S  J  U 
relied  upon. 

Appeal  against  an  order  of  the  Official 
Receiver,  dated  the  7th  January  1925. 

Mr  Nadir  shah  Naoroji,  for  the  Appellant., 

Mr  Fatehchand  Assudamal,  for  Re- 
spondent No.  1. 

JUDGMENT. —This  is  an  appeal 
against  the  order  of  the  Official  Receiver 
rejecting  the  claim  of  the  appellant  McoJjf 
Morarji  as  secured  creditor  over  a  sum  of 
Rs  2,532-1-7  It  arises  out  of  the  following 
facts: — 

The  Firm  of  Haribhoy  Oodowjinow  insol- 
vent had  an  account  with  Messrs  Cox&  Co., 
Bankers,  for  discounting  their  bills,  and  as 
security  for  the  due  payment  of  the  amount 
standing  to  their  debit  in  the  said  account, 
they  deposited  the  title-deeds  of  one  of 
their  immoveable  properties  by  way  of 
equitable  mortgage  with  Messrs,  Cox  &\ 
Co  ,  who  in  their  turn  agreed  to  accommo- 
date them  to  the  extent  of  Rs  1,20,000. 

The  appellant  had  also  an    account  with 


MOOLJI  MURAJI  8UNDERJ1  V.  PINTO, 


[921,0.192$] 


Messrs.  Cox  &  Co.  and  had  likewise  de- 
posited title-deeds  of  his  propeities  to 
secure  the  due  payment  of  the  amounts 
Debited  to  his  account. 

Mesers,  Haribhoy  Oodowji  and  the  appel- 
lant both  joined  together  in  borrowing  a 
sum  of  Rs.  30,000  from  Messrs.  Cox  and  Co., 
on  two  bills  executed  by  them  jointly  and 
each  of  them  appropriated  to  his  own  use 
the  sum  of  Rs.  15,000.  Messrs.  Haribhoy 
Oodowji  became  insolvent  before  the  due 
date  of  the  payment  of  the  two  bills.  The 
appellant  retired  one  of  the  two  bills  and 
requested  Messrs.  Cox  &  Co.  to  recover 
the  amoupt  of  the  other  bill  in  the  first 
instance  from  the  property  of  the  insol- 
vent contending  that  he  was  only  a  surety 
for  the  amount.  This  Messrs.  Cox  &  Co. 
declined  to  do.  They  recovered  the 
amount  of  the  2nd  bill  also  from  him  and 
in  reply  to  the  protest  of  the  appellants1 
Pleaders  they  said  as  follows: 

"With  regard  to  the  last  part  of  your 
letter  all  we  can  say  is  that  if  your  client 
is  entitled  in  law  to  t  the  benefit  of  the 
security  held  by  us,  we  will  continue  to 
hold  the  same  and  to  have  recourse  to  it 
after  our  entire  indebtedness  is  satisfied." 

The  property  was  subsequently  sold  by 
Messrs,  Cox  #  Co.  as  secured  creditors, 
and  after  ihe  rest  of  their  claim  against 
the  insolvent  was  satisfied,  there  was  a 
e.urplua  of  Rs.  2,532-1-7  in  their  hands; 
WUc^t  they  handed  over  to  the  Official 
Receiver  duly  intimating  to  him  that  the 
appellant  claimed  a  preferential  right  over 
it,  as  aurety  and  as  such  entitled  to  the 
benefits  of  the  security  held  by  them. 

Tijp  Official  Receiver  has  declined  to  re- 
cognize the  claim  of  the  appellant  as  a 
secured  creditor  and  has  retahjecj  the 
money  with  himself  for  the  benefit  of  the 
general  bpdy  of  the  creditors  of  ttye  insolv- 
ei&tsr  VOA  the  evidence  ar^d  the  inferences 
to  be  drawn  therefrom,  there  can  be  no 
doubt,  that  the  appellant  and  the  insolvents 
'fore  each  of  them  a  surety  for  the  other 
tqthe  extent  of  a  moiety  of  the  amount 
bofrowed  gn  the  two  billp  aixd  that  they  had 
joined  together  as  co-executants  to  afford 
a  greater  ^ecurjty  to  Messrs.  Cox  <&  Co., 
whd  were  at  liberty  to  fell  back  on  either 
of  them  for  payment  of  the  whole  amount 
op  the  due  date.  It  is  equally  clear  on  the 
eyidefcce  of  Mr.  Leslie  Smith,  the  Manager 
of  Messrs'.  Cox  &  Co.,  that  the  equitable 
niortgage  created  by  the  insolvoota  extend- 
ed to  afl  Dills  discounted  by  them,  whether 


such  bills  were  executed  by  the  insolvents 
alone  or  jointly  with  others  and  th&t  ttxe 
whole  sum  of  Rs.  30.0JO  was  debited  to  the 
insolvents  as  a  contingent  liability  in  the 
account,  Ex.  10,  which  was  the  subject  p! 
the  equitable  mortgage.  It  would,  tljere- 
fore,  appear  that  the  whole  sum  of  Rs.  30,000 
and  a  portion  of  a  moiety  thereof  appropri- 
ated by  the  insolvents  to  their  own  u$ef  was 
inter  alia  secured  by  the  equitable  mort- 
gage of  their  property. 

It  is  urged  on  behalf  of  the  Official  Re- 
ceiver that  it  is  not  open  to  the  appellant 
to  give  oral  evidence  to  vary  the  terms  of 
the  dishonoured  bill,  which  terms  are  in 
writing,  and  to  prove  that  the  appellant 
joined  in  the  bill  as  a  surety  only.  .This 
argument  is  based  on  a  misconception  of 
facts.  The  bill  contains  a  joint  promise  by 
the  two  executants  to  pay  to  their  credi- 
tors the  amount  of  the  bill  jointly  apd 
severally  and  so  far  as  the  express  promise 
goes  it  may  not  be  varied  by  parol  evi- 
dence. The  bill  does  not  declare  in  express 
terms  the  rights  of  the  co-obligors  inter  $e> 
and  there  is  nothing  in  law  to  prevent  one 
of  them  to  prove  such  terms  by  parol  evi- 
dence, provided  that  he  does  not  thereby 
intend  to  affect  the  rights  of  the  creditor  to 
demand  immediate  payment  from  either  or 
both  of  the  co-obligors  or  joint  promissors, 
Pooley  v.  Harradme  (1)  and  Central  Bank 
of  India  v,  Nadirshaha  Mehta  (2). 

The  joining  together  of  two  persons  in 
executing  a  bill  or  a  promissory-note  in 
favour  of  the  person  who  advances  money 
on  such  bill  or  note,  though  one  of  them 
is  the  principal  debtor  and  the  other  is 
surety,  is  one  of  the  common  cases  con- 
templated by  s.  132,  Indian  Contract  Act, 
an.4  is  referred  to  in  the  illustiation  to  that 
section.  Section  132  $ad  the  illustration 
read  as  follows:— 

"Section  132— Where  two  persons  coi>- 
tract  with  a  tljird  person  to  undertake  a 
certain  liability  and  also  contracts  with  each 
other  that  oijqe  of  them  shrill  be  liable  opjy 
on  the  default  of  the  ottyer,  the  third  persop, 
not  being  a  parjby  to  B)icb.  contract,  f,he 
liability  of  each  of  such  two  persons  to  tfc$ 
third  person  under  the  first  contract  is-  not 
affected  by  the  existence  of  $ne  2nd  coii» 
tract,  although  si^ch  t  jrird  person  may  feprV^ 
been  aware  of  its  existence. 

(1)  (1857)  110  R   R.  666;  7  E.  #  B    431;   26  L.  Ji  Q: 
B    156,    3  Jar.    (N.  s)  488;    5  W.  K.   40$;  119*  K.   H, 
1307 

(2)  79  ind.  Cta  445;  (WW)  A,  |.  R.  (0.)  A 


.  0. 


ROSHAN  LAL  V, 

Illustration. 

A  and  B  make  a  joint  and  several  promis- 
sory-note to  C.  A  makes  it,  in  fact,  as 
surety  for  B  and  C  knows  this  at  the  time 
thfc  note  is  made.  The  fact  that  A  to  the 
knowledge  of  C,  made  the  note  as  surety 
forBt  is  no  answer  to  a  suit  by  C  against 
A  upon  the  note  " 

The  section  prevents  the  co-obligor  to 
qualify  hi?  immediate  liability  to  the 
creditor  but  goes  no  further  and  does  not 
dfcbarhim  from  claiming  his  rights  as  a 
surety  under  the  subsidiary  contract  refer- 
red to  in  the  section  and  declared  by  the 
Legislature  in  the  subsequent  sections 
which  follows  including  s.  141  of  the  Act. 
If'Mfcssra  Cox  A  Co.  had  acceded  to  the 
request  of  the  appellant  they  were  in- 
dubitably entitled  to  retain  the  surplus 
sale-proceeds  in  part-payment  of  the  dis- 
honoured bill  as  secured  creditors.  The 
apipellant  has  paid  the  amount  and  is,  there 
fore,  entitled  to  the  same  lien  which  Messrs. 
06*  &-  Co. ,  had  over  the  surplus  sale- 
proceeds. 

I  &m  of  opinion  that  the  Official  Receiver 
was  in  error  in  rejecting  the  appellant's 
olftim.  I  allow  the  appeal  with  costs  and 
order- that  -  the  costs  of  the  appellant  do 
come'out  of  the  estate  of  the  insolvents. 

p.  B.  A.  Appeal  allowed. 

LAHORE  HIGH  COURT; 

SECOND  CtviL  APPJJAL  No.   1947  OP  1924. 

January  28,  1925. 

Present: — Mr.  Justice  Campbell. 

ROSHAN  LAL  MINOR  THROUGH  HIS 

MOTHER  Musammat  DURGA  DEVI— 

PLAINTIFF— APPELLANT 

versus 
Seth  RUSTOMJI  AND  01  HERS— DEFENDANTS 

— RESPONDENTS. 

Hindu  law— Joint  family  -Alienation — Manager's 
power* — Benefit  of  estate — Necessity 

The  manager  of  a  joint  Hindu  family  has  an 
implied  authority  to  do  whatever  is  best  for  all 
concerned,  the  test  being  whether  the  transaction  is 
one  into  which  a  prudent  owner  will  enter  in  order 
to  benefit  the  estate,  [p.  670,  col.  1.] 

Tlje  term  necessity  not  only  covers  a  case  of  actual 
pressure  on  an  estate  or  a  danger  to  be  averted  by 
piompt  discharge  of  liabilities  but  an  act  benefitting 
the  estate  as  well  [p  G 70,  col  2] 

Brtj  Narain  Rai  v  Mangla  frasad  Rai,  77  Ind  Gas. 
689;  46  A.  95;  21  A.  L  J.  934;  46  M.  L  J.  23;  5  P  L 
T.  1;  28  0,  W.  N.-253;  (1924)  M.  W.  N,  68;  19  L  W.  72; 
2  Pat.  L.  R.  41;  10  0.  &  A  L.  R.  82,  (1924)  AIR. 
(P,  O.J  50;  33  M  L.  T.  457;  26  Bom.  L  R.  500,  11  0  L. 
J,  107;  51 1.  A.  129;  1  0.  W-  N  48;  41  0  L.  J.  232 
(P.  Q.)t*Naginda8  ManeUal  v.  Mahomed  Yuauf  Mit- 
cfceia,  64  Ind.  Gas.  923-,  46  B.  312;  23  Bom.  L.  R.  109 1; 
V,  L  'R,  (B.)'  122,  Hiinoomanpersaud  Panday  v. 


669 

Babooee  Munraj  Koonweree,  6  M.  I.  A.  393;  18  W  R. 
81n,  Sevestre  253n;  2Suth,  P.  0.  J.  29;  1  Sar  P  C  J. 
552,  19  E  R,  147,  Sheotahal  Singh  v.  Arjun  Das,  56 
Ind  Gas  879,  IP  1,  T  136,,  (1920)  Pat  155,  and  Sahu 
Ram  Chandra  v  Bhup  Singh,  39  Ind  Gas  280,  3D  A 
437,  21  G  W.N.  G98,  1  P.  L.  W.  557;  15  A  L  J  437, 
19  Bom  L,  R.  498,  26  G.  L.  J  1,  33  M,  L.  J.  14,  (I'll?) 
M  W.  N.  439,  22  M.  L  T.  22,  6  L.  W.  213,  44  I  A  126 
(P  C  ),  referred  to. 

Appeal  from  a  decree  of  the  District 
Judge,  Lahore,  dated  the  14th  April  1924, 
reversing  that  of  the  Senior  Sub-Judge, 
Lahore,  dated  the  25th  August  Ifc22. 

Diwan  Mehr  Chand  and  Lala  Kahan 
Chand,  for  the  Appellant. 

Lala  Durga  Das,  for  the  Respondents. 

JUDGMENT.— This  second  appeal 
arises  out  of  a  suit  by  a  son  to  challenge 
a  sale  of  2  kanals  9  marlas  of  land  by  his 
father  at  the  rate  of  Rs.  1,000  per  kanal. 
The  findings  of  the  lower  Appellate  Court 
are  that  the  plaintiff  and  the  vendor  formed 
a  joint  Hindu  family  at  the  time  of  the 
sale  and  that  the  transaction  was  for  the 
benefit  of  the  estate.  The  suit  was  dis- 
missed on  these  findings. 

In  second  appeal  two  arguments  have 
been  addressed  to  me.  The  first  is  based  on 
the  summary  set  forth  by  their  Lordships 
of  the  Privy  Council  in  Brij  Narain  Raiv. 
Mangla  Prasad  Rai  (1)  of  the  circumstances 
in  which  the  managing  member  of  a  joh*t 
undivided  family  can  alienate  or  burden 
the  estate.  The  first  of  these  is  stated  to 
be  that  he  cannot  alienate  or  burden  the 
estate  except  for  purposes  of  necessity  and 
it  is  contended  that  the  term  "necessity'1 
represents  actual  pressure  On  an  estate  or 
danger  to  be  averted  by  prompt  discharge 
of  liabilities,  etc ,  and  that  an  act  of  im- 
provement of  the  estate  cannot  come  within 
its  scope.  Against  this  view  the  lower 
Appellate  Court  has  cited  two  rulings 
both  of  which  are  apposite.  The  first  is 
Nagindas  Maneklal  v.  Mahomed  Yusn-f 
Mitchela  (2)  where  adult  co-parceners  had 
sold  a  dilapidated  house.  The  family  was 
in  fairly  good  circumstances  and  it  wa£ 
not  "necessary  to  sell  the  house  but  the 
house  yielded  no  income.  It  was  held  that 
the  agreement  of  sale  was  binding  on  the 
minor  co- parceners  and  that  there  was  no 
reason  to  put  a  restricted  interpretation 

(1)  77  Ind.  Gas  689,  46  A.  95;  21  A.  L.  J.  ,9.71;  46  M< 
L.  J  23;  5  P  L,  T,  1;  28  G  W.  N.  253;  (1924)  Mi  W.  N. 
68;  19  L  W.  72,  2  Pat.  L  R.  41;  10  O.  <fc  A.  L.  R.  62, 
(1924)  A.  I  R.  (P.  G.)  50;   33  M.  L.  T  457;  26   Bom.  L. 
k  500;  11  O,  L.  J.  107;  51 1.  A.  129;  1  O.  W.  N,  48;  41 

o.  L.  J,  232  (P.  o ;. 

(2)  64  Ind,  Ca&.  923;  46  B,  312;  23  Bom,  U  TUQ&;' 
(1922)  A,  1,  R,  (B.)  122, 


1NDARPAL  SINGH  V.  KALLOO, 


[92  I.  0.  1936} 


upon  the  Tvord  "necessity11  so  as  to  exclude 
a  case  like  that  before  the  Judges.  Mr. 
Justice  Fawcett  expressed  the  opinion  that 
there  was  no  authority  for  holding  that 
legal  necessity  was  confined  entirely  to 
cases  where  debts  are  to  be  paid  or  there 
is  other  financial  pressure,  and  he  cited  in 
support  of  this  view  the  observations  of 
their  Lordships  of  the  Privy  Council  in 
Hanoomanpersaud  Pandey  v.  Babooee  Mun- 
raj  Koonweree  (3)  which  recognized  the 
power  of  the  manager  for  an  infant  heir 
to  charge  an  estate  not  his  own  "in  case  of 
need  or  for  the  benefit  of  the  estate."  The 
second  case  was  a  decision  by  the  Patna 
High  Court  printed  as  Sheotahal  Singh  v. 
Arjun  Das  (4)  and  dated  the  10th  of  March 
1920,  There  joint  family  property  had 
been  mortgaged  in  order  to  pay  the  pre- 
mium for  a  7  years'  lease  which  was  held 
to  have  resulted  in  considerable  benefit  to 
the  joint  family.  It  was  argued  before  the 
learned  Judges  that  later  decisions  of  the 
Judicial  Committee  had  modified  the  rule 
laid  down  in  Hanoomanpersaud  Pandey  v. 
Babooee  Munraj  Koonweree  (3)  and  that  the 
present  rule  requires  a  calamity  affecting 
the  whole  family  or  necessity  for  its  actual 
support  or  indispensable  religious  duties 
to  justify  an  alienation.  A  large  number 
of  authorities  was  examined  in  connection 
with  this  argument  and  the  conclusion, 
Reached  was  that  there  had  been  no  modi- 
fication of  the  previous  rule  and  that  the 
jnanager  of  a  joint  family  has  an  implied 
authority  to  do  whatever  is  best  for  all 
concerned,  the  test  being  whether  the 
transaction  was  one  into  which  a  prudent 
owner  would  enter  in  order  to  benefit  the 
estate. 

The  learned  Vakil  for  the  appellant 
before  me  has  urged  that  in  Sahu 
Ram's  case  (5)  the  rule  had  been  stated 
in  the  restricted  form  which  he  put 
forward.  This  is  not  so,  for  on  page 
444*  the  correct  and  general  principle  is 
said  to  be  that  if  the  debt  was  not  "for,  the 
benefit  of  an  estate"  then  the  manager 
should  have  no  power  either  of  mortgage 
or  sale  of  that  estate  in  order  to  meet  such 
a  debt,  and  elsewhere  allusion  is  made  to 

(3)  6  M.  I  A.  393;  18  W  R  81rt;  Sevestre  253n;  2  Suth 
P,  C.  J.  29,  1  Sar.  P.  C.  J.  552,  19  K  R  147. 

(4)  56  Ipd    Gas.  879;  1  P  L  T    136,  (1920)  Pat  155 

(5)  39  Ind.  Cas.  280,  39  A   437,  21  0.  W  N  COS;  1  P. 
L  W  557;  15  A  L,  J  437;  19  Bom  Iy  R  49P;  26  0    L. 
J.1;33M.  L.  J.H;    (1917)  M  W.    N.439;  22  M  L.  T. 
22,  6  L  W    213t  44  1.  A    126  fP.  G  ) 

,  'page  of  39  A.— [4UJ  '        ~~ 


"estate  or  family  necessity,11  and  in  explain- 
ing the  term  "necessary  purposes''  the 
following  passage  occurs-—  <lThe  principle* 
in  legard  to  this  is  analogous  to  that  of> 
the  power  vested  in  the  head  of  a  religious^ 
endowment  or  muth  or  of  the  guardian  of 
an  infant  family.  In  all  of  the  cases  where 
it  can  be  established  that  the  estate, 
itself  that  is  under  administration  demand- 
ed, or  the  family  interests  justified,  the< 
expenditure,  then  those  entitled  to  the^ 
estate  are  bound  by  transaction.11  This 
definition  certainly  does  not  exclude  what 
might  be  described  as  benefit  to  the  estate.- 

The  second  argument  is  that  there  was 
no  benefit  to  the  estate  in  the  present  case 
but  the  findings  of  fact  of  the  lower  Appel- 
late   Court    are    against    this    contention, 
They  are  that  a  fancy  price  was  obtained 
for  the  land,  that  the    land  was  yielding 
no  income  to   the  joint  Hindu  family  and 
that  the  sale  proceeds  were  invested  in  five 
years1  cash  certificates  bringing  in  interest 
at  the  rate  ot  Ks.  150  per  annum.    The  sal# 
was  effected  in  May  1920.    The  lower  Ap- 
pellate Court  took  notice  of  the  fact  that" 
the  actual  cash  certificates  had  not  been- 
produced  in  the  Trial  Court,  but  it  held^ 
that  this  was  not  necessary  as  there  was  no> 
reason  to  disbelieve  the  statement  of  the> 
witness  Bhagwan  Das  who  said    that  the 
investment  had  actually  been  made.    An 
attempt  has  been  made  to  re-agitate  this 
point  and  the  statement  has  been  made  to 
me  that  the  cash  certificates  were  actually 
called  for  by  the  plaintiff  in  the  Trial  Court. 
This    statement,  however,   is  proved  from 
the  record  to  be  incorrect. 

Neither  finding  of  the  learned  District 
Judge  that  the  transaction  was  for  the 
benefit  of  the  estate,  and  that  under  Hindu 
Law  it  binds  the  plaintiff  can  be  interfered 
with,  and  I  dismiss  the  appeal  with  costs, 

R.  L,  Appeal  dismissed, 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  324  OF  1925. 

December  14,  1925. 
Present :— Mr,  Justice  Ashworth  and 

Mr.  Justice  Misra. 
INDARPAL  SINGH -PLAINTIFF- 
APPELLANT 
versus 

KALLOO  AND  ANOTHER — DEPENDANTS  — 

RESPONDENTS. 

Pre-emptions-Price  fixed  in    good  'faith—Finding 


INDARPAL  SINGH  V   KALLOO. 


[9S10.  1926J 

of  fact— Appeal,    second-— Finding,    whether    can    be 
challenged. 

Wheje  a  Court  of  first  appeal  disbelie\oa  the 
witnesses  produced  by  a  pre-emptoi  in  support  of 
his  allegation  that  the  price  mentioned  in  the  sale- 
deed  was  not  fixed  in  good  faith,  its  finding  that  the 
price  was  fixed  in  good  faith  cannot  be  challenged  111 
second  appeal,  [p  672,  col  1  ] 

Second  appeal  against  a  decree  and 
judgment  of  the  District  Judge,  Rai 
Bareli,  dated  the  4th  April  1925,  modifying 
that  of  the  Additional  Subordinate  Judge, 
Partabgarh,  dated  the  31st  July  1924. 

Mr.  £T.  D.  Chandra,  for  the  Appellant. 
Mr.  Bishambhar   Nath  Khanna,  for  the 
Respondents. 

JUDGMENT.— This  appeal  arises  out 
of  a  suit  for  pre-emption  brought  by  the 
plaintiff-appellant,  Indarpal  Singh,  on  the 
basis  of  a  sale  deed  dated  2nd  June  1922, 
executed  by  one  Naghai  Singh  and  another 
in  favour  of  the  respondents.  The  sale- 
deed  related  to  a  share  m  village  Ohandar- 
bhan,  Patti  Gokul  Sah,  District  Partapgarh, 
and  was  for  a  sum  of  Rs.  2,400  The 
plaintiff  alleged  that  the  consideration 
stated  in  the  sale-deed  was  fictitious,  and 
that  the  price  actually  agreed  upon  between 
the  parties  to  the  sale  was  Rs  1,800,  He, 
therefore,  claimed  pre-emption  of  the  pro- 
perty sold  on  payment  of  the  said  sum  of 
Rd.  1,800.  In  defence,  the  title  of  the 
plaintiff  to  pre-empt  was  denied,  and  it 
was  contended  that  the  price  entered  in 
the  sale-deed  was  fixed  in  good  faith,  and 
that  the  plaintiff  could  not  be  allowed  to 
pre-empt  on  payment  of  any  sum  less  than 
Rs,  2,400,  the  price  entered  in  the  sale-deed. 
The  Trial  Court,  the  Additional  Subordi- 
nate Judge  of  Partabgarh,  by  his  judgment 
dated  the  31st  July  19^4,  held  that  the 
plain  tiff  was  entitled  to  pre-empt  and  decreed 
the  suit  on  payment  of  Rs.  1,800  being  of 
opinion  that  the  price  entered  in.  the  sale- 
deed  had  not  been  fixed  in  good  faith  and 
that  the  sum  of  Rs.  1,800  was  the  price 
which  had  actually  been  agreed  upon  and 
which  was  the  fair  market  value  of  the 
property  sold.  Against  this  decree  the 
defendants-respondents  appealed  to  the 
Court  of  the  District  Judge  of  Rae  Bareli, 
who,  by  his  decree  dated  4th  April  1925, 
set  aside  the  judgment  of  the  Trial  Court, 
and  held  that  the  price  mentioned  in  the 
sale-deed  was  the  actual  price  which  had 
been  agreed  upon  between  the  parties,  and 
on  that  finding,  he  varied  the  decree  of  the 


pre- 


Trial  Court  by  passing  a  decree  for 
emptiori  on  payment  of  Rs.  2,400. 

The  plaintiff  now  comes  up  in  second 
appeal  to  this  Court,  and  on  his  behalf  it 
ia  contended  that  the  finding  of  the  lower 
Appellate  Court  should  not  be  acceptPciT, 
inasmuch  as  the  appellant  in  this  Court  had 
produced  evidence  sufficient  to  discharge 
the  burden  of  proof  that  lay  upon  him. 
It  is  contended  that,  in  accordance  with  the 
ruling  laid  down  in  a  decision  of  the  late 
Judicial  Commissioner's  Court  of  Oudb, 
Dwarka  v.  Ludar  (1),  in  a  suit  for  pre- 
emption only  very  slight  evidence  is  requir- 
ed of  the  plain  tiff  to  support  his  allegation, 
that  the  price  entered  in  the  sale- deed  was 
not  the  true  price,  in  order  to  shift  the 
burden  of  proof  on  the  vendee.  We  have 
to  examine  how  far  that  contention,  pressed 
on  behalf  of  the  appellant,  can  be  enter- 
tamed  in  second  appeal. 

There  were  three  witnesses  produced  by 
the  appellant  in  the  Trial  Court,  namely, 
Mata  Bhik  and  Sita  Ram,  the  two  attesting 
witnesses  to  the  sale-deed  in  suit,  and 
Naghai  Singh,  one  of  the  vendors.  The 
story  narrated  by  the  two  marginal  witnesses 
above  mentioned  was  disbelieved  by  the 
Trial  Court.  That  Court,  however,  believed 
the  evidence  of  the  vendor,  Nagahi  Singh, 
and,  taking  other  facts  into  consideration, 
came  to  the  conclusion  that  the  considera- 
tion stated  in  the  sale-deed  was  a  fictitious 
consideration.  In  appeal  the  learned  Dis- 
trict Judge  agreed  with  the  Trial  Court  in 
its  view  that  the  evidence  of  the  two 
marginal  witnesses  was  untrustworthy  and 
could  not  be  relied  upon.  He  went  a  step 
further,  however,  and  disbelieved  the  evi- 
dence of  the  vendor,  Naghai,  also.  He 
stated  in  his  judgment  : 

"  Naghai  Singh  also  has  not  spoken  the 
truth  and  is  not  worthy  of  credit/* 

The  result  at  which  the  learned  District 
Judge  arrived  was,  that  he  disbelieved  all 
the  witnesses  produced  in  the  case  by  the 
plaintiff-appellant,  and  was  of  opinion  that" 
the  plaintiff  had  altogether  failed  to  prove 
that  he  had  given  even  the  slight  evi-. 
dence  of  want  of  goud  faith  in  the  statement 
of  the  price  entered  in  the  sale-deed,  as 
laid  down  in  the  ruling  quoted  above.  In 
these  circumstances,  there  is  no  point  of 
law  left  in  the  appeal.  It  was  fnr  the 
lower  Appellate  Court  to  have  accepted  or, 
not  the  evidence  of  Naghai  Singh,  the 

(L)  4  0,  0,  217, 


672 


ADDBPALLI  KONDAYYA 


vendor.  K  could' not  see  its  way  to  accept 
that  evidence,  and  came  to  a  finding  of 
fact  that  there  was  no  evidence  which  had 
been  prod  need  in  the  case  by  the  plaintiff 
sufficient  to  justify  him  in  shifting  the 
burden  of  proof  on  to  the  other  side,  It, 
therefore,  appears  to  us  to  be  clear  that 
the  finding  of  fact  arrived  at  in  this  case  by 
th$  lower  Appellate  Court  cannot  be  disturb- 
ed ia  second  appeal. 

We,  therefore,  direct  that  the  appeal 
eKbulq  stand  dismissed  with  costs. 

z.  K.  Appeal  dismissed. 


MADRAS  HIGH:  COURT, 

SECOND  CIVIL  APPEAL  No.  532  OP  1922. 

October  7,  1924. 
Present:—  Mr.  Justice  Jackson. 
ADDEPALLI  KONDAYYA—  PLAINTIFF— 

APPELLANT 
,  (          versus 
YANDR'O  VEERANNA—  DEFENDANT— 

EBSPONDENT. 

Transfer  of  Property  Act  (IV  of  1882),  ss.  118— 
Transfer  of  piece  of  land  in  lieu  of  grant  of  right 
of  eaMTnent—JXegistered  deed,  whether  necessary. 

A  transaction  by  which  a  person  agrees  to  permit 
another  to  rest  the  beams  of  a  structure  on  his  wall 
arid  io  open  cupboards  therein  in  exchange  for  a 
piece  of  land  of  the  value  of  less  than  Rs.  100  need 
not  be  in  writing  registered,  where  each  party  has 
delivered  possession  to  the  other 

The  grant  of  an  easement  is  not  a  transfer  of 
ownership  of  immoveable  property. 

Bhagwan  Sahai  v.  Narsmgh  Sahai,  3  Ind.  Gas,  615, 
31  A,  612;  6  A,  L.  J,  871,  relied  on, 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Cocanada, 
in  A.  S.  No.  45  of  1921,  preferred  against 
a  decree  of  the  Court  of  the  Additional 
District  Munsif,  Coeanada,  in  O.  8,  No.  105 
of  1919. 

Mr.  0.  Rama  Rao,  for  the  Appellant, 
Mr.  P.  Somasundaram,  for  the  Respond- 
ent. 


.—  Appeal  from  the  decree 
of  "the  Subordinate  Judge  of  Coeanada  in 
A/S.  'N0/45  of  1921. 

The  plaintiff  and  defendant  entered 
intp-an'bral  agreement  whereby  the  de- 
fendant wafe  permitted  to  rest  the  beams  of 
a  structure'  upon  plaintiff's  wall,  and  to 
open  certain  cupboards  in  the  said  wall, 
111  ;  exchange  for  land  which  plaintiff  added 
to  his  property.  Plaintiff  alleges  that  the 
full  amount  of  land  has  not  been  made  over 


V.  TANDRfJ  VBEflANNA.  [92*  I.  0. 

to  him,  and  sues  to  have  the  cupboards  and 
beams  removed.  The  lower  Appellate 
Couit  has  found  that  less  land  than  what 
is  alleged  by  plaintiff  was  agreed  to  be  ex- 
changed, and  that  defendant  has  fulfilled 
his  part  of  the  agreement*  Accordingly  i$ 
has  dismissed  plaintiff's  suit  and  plaintiff 
appeals. 

Two  points  have  been* argued. 

(1).  The  lower  Appellate  Court's  finding 
on  the  facts  is  not  based  upon  any  evidence 
(10th  ground  of  appeal). 

(2).  The  exchange  pleaded  by  defendant 
is  not  valid  since  there  was  no  registered 
document  and  no  delivery  (2nd  ground). 

I  do  not  find  that  tha  lower  Appellate 
Court  proceeded  without  regard  to  the 
evidence.  Appalaswami  (D.  W.  No.  3)  says 
that  the  land  given  in  exchange  extended 
to  the  west  as  far  as  the  line  in  continua- 
tion of  the  western  boundary  of  the  western 
verandah  of  plaintiff's  house  and  to  the 
north  of  the  red  line  in  Ex.  "B."  That  is 
the  triangular  section  south  of  the  new 
wall  and  north  of  the  red  boundary  line 
which  the  Subordinate  Judge  finds  to  have 
been  the  portion  surrendered  by  defendant 
and  this  finding  on  the  evidence  cannot  be 
traversed  in  second  appeal. 

It  is  a  very  small  trip  of  land  ad- 
mittedly below  Rs,  100  in  value  (District 
Munsif s  judgment,  para.  7).  Therefore, 
there  is  no  question  of  the  necessity  of  a 
registered  document.  Each  party  has  de- 
livered possession  to  the  other,  the  defend- 
ant by  allowing  plaintiff  to  wall  off  the 
triangle  of  land,  and  the  plaintiff  by  con- 
structing the  cupboards  on  defendant's 
side  of  the  wall  and  having  them  available 
for  his  use.  Therefore,  the  exchange  is 
valid,  and  plaintiff  has  no  right  to  oust  th^ 
defendant.  As  regards  the  other  grounds 
of  appeal,  (grounds  Nos.  2  and  3),  if  an  ex- 
change for  defendant's  land  plaintiff  has 
only  obtained  an  easement  (and  the  transfer 
of  the  portion  of  his  wall  occupied  by  the 
cupboards  is  not  a  transfer  of  tangible  pro* 
perty),  then  there  is  no  question  of  plaint- 
iff's transferring  (apart  from  creating)  any 
immoveable  property  either  tangible  .or 
intangible.  The  only  transfer  would  be  the 
transfer  of  defendant's  triangle,  and  the 
transaction  is  on  the  same  footing  asf  it 
would  be  if  plaintiff  had  given  cash  instead 
of  an  easement  in  exchange  for  this  land. 
This  point,  that  the  grant  of  an  easement 
is  not  a  transfer  o£  ownership,  is  laid  down 


[92  L  0. 1926 J  GAURI SHANKAR  V 

in  Bhagwan  Sahai  v.  Narsingh  Sahai  (1), 
the  ruling  quoted  by  the  lower  Appellate 
Court.  The  Subordinate  Judge  may  have 
overlooked  that  the  other  side  of  the  bar- 
gain, the  transfer  of  defendant's  land,  is  a 
transfer  of  ownership,  but  to  establish  that 
transaction  proof  of  delivery  is  sufficient 
because,  as  I  showed  above,  its  value  is  well 
below  Rs.  100. 

Ground  No  4  — And  if  plaintiff  has  transfer- 
red tangible  property  by  the  transfer  of  the 
cupboard  space,  then  again,  its  value  is  so 
small  that  proof  of  delivery  is  sufficient 

Ground  No  5  — There  is  no  such  finding. 
The  site  "all  along  the  northern  side" 
which  the  Subordinate  Judge  finds  was 
intended  to  be  given  is  just  that  triangle 
which  I  have  explained  above  and  that  has 
been  given. 

Grounds  Nos  7  and  8  do  not  arise  and 
there  is  no  question  of  onus. 

The  appsal  fails  on  all  grounds  and  is 
dismissed  with  costs. 

v.  N.  v.  Appeal  dismissed 

(13)  3  Ind  Oas  615,  31  A  612,  6  A  L   J  871 


OUDH  CHIEF  COURT. 

Fi&sr  MISCELLANEOUS  APPEAL  No  11  OF  1925. 

December  15,  1925 
Present  • — Mr.  Justice  Ashworth  and 

Mr.  Justice  Misra 

Ldla  GAURL  SHA.NKA.R— CREDITOR— 
AFPKLLANT 

versus 
R.  J.  DfiCRUZE — INSOLVENT  —RESPONDENT. 

Provincial  Insolvency  Act  (V  of  1020),  s  18  - 
—Civil  Procedure  Code  (Act  V  of  1U08),  s  60  - 
Provident  Funds  Act  (IX.  of  1897),  s  2  (^-"Cowi- 
pulsory  deposit",  meaning  of  —Deposit  paid  out  to 
insolvent — Attachment 

A  "compulsory  deposit'1  within,  the  meaning  of  s  2 
(4),  Provident  Fun  Is  Aet,  is  such  deposit  only  so  long 
as  it  remains  in  tho  fund,  and  not  aftei  it  lias  been 
paid  over  to  the  person  to  whose  ciedit  it  had  hitherto 
stood  [P  674,  col  1  ] 

Therefore,  a  compulsory  deposit  under  the  Pro- 
vident Funds  Act,  after  it  has  be^n  paid  out  of  the 
funds  to  an  insolvent,  is  not  exempt  fiom  attachment. 
(Mud  ] 

NagLndas  Bhukandis  v  Ghdabhai  Gulabdas,  5G  Ind 
Oas.  449  &  450,  44  B  673,  22  Bom  L.  K.  J22,  dis- 
sented from 

Appeal  against  an  order  of  the  Fourth 
Additional  District  Judge,  Lucknow,  dated 
the  5th  March  1925. 

Mr.  M.  Wasim,  for  the  Appellant. 

Mr.  Ram  Shankar,  for  the  Respondent. 

43 


673 

JUDGMENT* — This  is  an  appeal  from 
an  order  of  the  Fourth  Additional  Judge  of 
Lucknow  in  insolvency  proceedings.  The 
insolvent,  R  J  De  Cruze,  resigned  his 
position  as  an  employee  in  the  Oudh  & 
Rohilkhund  Railway.  A  sum  of  Rs.  4,800 
standing  to  his  credit  in  the  provident  fund 
was  then  returned  to  him  He  had  at  an 
earlier  date  been  made  an  insolvent,  but 
had  not  been  discharged  A  creditor,  the 
appellent,  asked  (no  Receiver  having  been 
appointed)  to  be  allowed  to  attach  this 
sum.  The  lower  Court,  relying  on  the  case 
of  Nagmdas  Bhukandas  v  Ghelabhai  Gulab- 
das  (1),  upheld  this  contention.  The 
question  in  this  appeal  is  whether  the 
lower  Court  was  right  in  doing  so. 

The  decision  relied  upon  appears  to  us  to 
be  on  all  fours   with   the  present  case,  but 
we    regret    that    we  are   not    disposed    to 
follow  it.    It  was  admitted  in  the  judgment 
of  the  Bombay  Court  that,  under  s.  16  (4)  of 
the  Provincial  Insolvency  Act  III  of   1907t 
which  is   identical    with  s.  28  (4)     of    the 
present  Act,  V"  of  1920,  all  property  acquired 
by  an  insolvent  after  the   date  of  adjudica* 
tion  and  before  his  discharge,   shall   forth* 
with  vest  in  the   Court  or  Receiver,   and  it 
was  remarked  that,  at  first  sight,  it  would 
appear  that  these  words  in  their  literal  con- 
struction are  free  from  any  doubt     But  the 
Bombay  High  Court  refused  to  adopt    a 
literal  construction  on  two   grounds      The 
first  ground  was  that  in  the   English  case$ 
Cohen  v    Mitchell   (2),  the  English     Court 
had  declined  to  follow  the  literal  construc- 
tion of  ss  4 land  54  of  the   English  Bank* 
rupty  Act  on  the  ground   of  inconvenience 
and  the  Bombay  High   Court   pointed   out, 
that  in  a  previous  case   decided  by    the 
Bombay  High  Court,  Ahmahamad  v.  Vadi- 
lal    Deichand   (3),    the   Court   had   allowed 
itself   the  same  measure   of  freedom.      It 
suffices  to  say  that  the  earlier  Bombay  case 
was  distinguishable   both,  from    the    later 
Bjmbay  case  and  from  the  present    case, 
inasmuch  as  in  that  case  the  insolvent  had 
transferred  property  in  good  faith  acquired 
by  him  after  the  adjudication  order  to  a 
third  party  for  value.     It  was  not  pleaded  in 
this  case   that   the  provident  fund  money 
had  passed  out  of  the  control  of  the  insol- 
vent.   In  the  later  Bombay  case,  however, 

(1)  56  Ind,  Cas.  449  &  450;  i4  B  673,  22  Bom.  L.  R. 
322 

(2)  (1800)  2j   Q  B  D  26  >,   59  L  J,  Q,  15.  409,    63  L. 
T  206,  38  W    R  351,  7  Morrell  207 

(3)  53  Ind,  Oas,  197;  21  Bom,  L,  R,  849,  43  B,  890, 


674 


FIRM  3IHARI  LAL-JAI  NAEAYAN  V.  HAR  NARA1N  DAS, 


[92  I.  0. 1926] 


it  has  been  held,  that  neither  the  Official 
Assignee  nor  the  Official  Receiver  (and 
similarly  the  Court)  has  any  claim  to  money 
drawn  by  an  insolvent  as  his  provident  fund 
from  a  Railway  Company.  The  English 
ruling  Cohen  v.  Mitchell  (2)  the  decision  in 
Nagindas  Bhukandas  v.  Ghelabhai  (lulabdas 
(1),  was  based  on  other  considerations.  It 
invoked  s.  4  of  the  Provident  Funds  Act, 
1897,  which  ia  still  in  force.  This  section 
provides  that  neither  the  Official  Assignee 
nor  Receiver,  appointed  under  Ch.  XX  of 
the  C.  P.  0,  shall  be  entitled  to  or  have  any 
claim  on  a  compulsory  deposit.  The  pre- 
sent s.  57of  the  Provincial  Insolvency  Act 
V  of  1920,  takes  the  place  of  s.  351  of  the 
C.  P,  0.  of  18b2  as  regards  the  appointment 
of  Receivers.  The  Bombay  High  Court 
expressed  the  opinion  that  the  words  "shall 
be  entitled  to  or  have  any  claim  on  any 
such  compulsory  deposit,"  would  bar  a 
claim  to  a  compulsory  deposit,  even  after  it 
had  been  paid  over  to  the  insolvent.  In 
so  doing  we  consider  that  the  Bombay  High 
Court  ignored  the  definition  of  "compulsory 
deposit"  contained  in  s.  2  (4)  of  the  Pro- 
vident Funds  Act,  IX  of  1897.  The  defini- 
tion runs  as  follows  : — 

"  'Compulsory  deposit1  means  a  subscription 
or  deposit  which,  is  not  repayable  on  demand, 
or  at  the  option  of  the  subscriber  or  deposit- 
or, etc."  In  our  opinion  the  words  "repayable 
on  demand11  clearly  show  that  a  compulsojy 
deposit  is  only  a  deposit  so  long  as  it 
remains  in  the  fund,  and  not  after  it  has 
been  paid  over  to  the  person  to  whose  credit 
it  had  hitherto  stood. 

The  respondent's  Counsel  invoked  sub-s. 
(5)  of  s.  28  of  the  Provincial  Insolvency 
Act,  V  of  1920.  This  provision  excludes 
from  attachment  of  property  which  is  ex- 
empted by  the  C.  P.  C.,  1908.  Turning  to 
the  C.  P.  C.,  1908,  we  find  that  s.  60  (1), 
proviso  (k)}  exempts  from  attachment  all 
compulsory  deposits  and  other  sums  in  or 
derived  from  any  fund  to  which  the 
Provident  Funds  Act,  1897,  for  the  time 
being  applies,  in  so  far  as  they  are  declared 
by  the  said  Act  not  to  be  liable  to  attach- 
ment, but  we  have  already  stated  that  the 
Provident  Funds  Act,  Itt97,  only  exempts 
compulsory  deposits,  and  that  the  definition 
of  compulsory  deposit  will  not  include 
money  after  it  has  been  paid  out  of  the 
funds  to  an  insolvent.  The  C.  P.  C.,  does 
not,  therefore,  carry  us  any  further  or 
assist  the  insolvent. 


We  are  not  concerned  here  with  deciding 
whether  the  Bombay  High  Court  in  its 
eaiher  decision,  quoted  above,  was  right 
in  holding  that  the  Receiver  could  not 
interfere  with  property  once  it  was  tranfer- 
ed  to  a  third  party  in  good  faith  for  con- 
sideration by  the  insolvent  after  an  order 
of  adjudication.  It  is  obvious  that  money 
paid  over  by  an  insolvent  to  his  wife,  as 
is  alleged  to  have  been  the  cage  in  respect 
of  this  money  by  appellant's  Counsel,  can- 
not come  under  this  description  of  property. 
For  the  above  reasons,  dissenting  from  the 
decision  in  Nagmdas  Bhukandas  v.  Gela-' 
bhai  Gulabdas  (1),  we  allow  this  appeal  with 
costs,  and  direct  the  lower  Court  to  take 
into  consideration  the  appellant's  applica- 
tion on  its  merits. 

N.  ii.  Appeal  allowed. 


LAHORE  HIGH  COURT, 

CIVIL  REVISION  No.  224  OF  1923, 

January  7,  1925. 

Present: — Mr.  Justice  Harrison. 

FIRM  BIHAR!  LAL- JAt  NARAIN— 

PLAINTIFF-  -PETITIONER 

versus 

HAR  NARAIN  DAS  AND  OTHERS- 
DEFENDANTS — RESPONDENTS. 

Limitation  Act  (IX  of  1908),  Sch  It  Art.  85- 
Principal  and  commission  agent — Account,  mutual, 
open  and  current 

A  suit  on  an  account  by  a  commission  agent,  who 
received  goods  from  the  defendant  and  also  discount- 
ed his  liundis,  showing  a  shifting  balance  sometimes 
111  favour  of  one  and  sometimes  in  favour  of  the  other 
is  a  suit  on  a  mutual,  open  and  current  account,  and 
is  governed  by  Art.  85  of  Sch  I  to  the  Limitation 
Art  (p  675,  col  1] 

Ratan  Chand-Jawala  Das  v  Asa  Smg/i-Bagha 
Singh,  62  Ind  Cas  b98,  4  L  L  J  2 17,  (1922)  AIR. 
(L  )  l£8,  Ratan  Chand-Jwala  Das  v  Asa  Smgh-Bagha 
Singh,  59  Ind.  Cas  669,  3  U.  P  L  R  (L.)  3,  26  P.  W. 
R  1921,  31  P  L  R  1919  and  Namberumal  Chetty  v. 
Kotayya,  21  hid  Cas  773,  14  M  L  T  498,  relied 
on 

Manght  Ram  v  Firm  of  Ram  Saran  Das  Maman 
Chand,  2o  Ind.  Cas  415,  23  P  R  1915,  35  P.  W  R, 
1915,  100  P  L  R  1915,  distinguished 

Revision  from  an  order  of  the  Judge, 
Small  Cause  Court,  Delhi,  dated  the  23rd 
January  1923. 

Bakhshi  Tek  Chand,  for  the  Petitioner. 

JUDGMENT.— In  this  case  the  plauu- 
iff  a  suit  has  been  dismissed  as  barred  by 
limitation  under  Art.  83  and  a  revision  from 
that  order  is  before  me. 

The  fads  are  briefly   that  the  plaintiff 


0.  1926J 


RA1SDNNI8A  1).  fcORAWAfc 


675 


sued  on  a  lengthy  account  showing  a 
shifting  balance,  sometimes  in  favour  of  the 
petitioner  and  sometimes  in  favour  of  the 
othei.  He  was  a  commission  agent  and 
as  such  received  goods  from  the  defendants 
and  also  discounted  the  defendants1  hundis, 
and  he  claimed  on  these  facts  that  his  suit 
was  governed  by  Art  85  The  Trial  Court 
has  relied  on  Manghi  Ram  v  Firm  of  Ram 
Saran  Das-Maman  Ghand  (I),  in  which  the 
facts  are  not  identical,  for  apparently  there 
was  no  mutual,  open  and  current  account  in 
that  case  and  the  transactions  between  the 
parties  were  confined  to  certain  hundi  trans- 
actions. Counsel  for  the  petitioner  has  relied 
on  Ratan  Chand-Jwala  Das  v  Asa  Singh- 
Bagha  Singh  (2),  Ratan  Chand-Jwala  Das  v, 
Asa  Singh-  Bagha  Singh  (3)  and  Namberumal 
Chettf/  v.  Kotayya  (4),  the  last  of  which  is 
exactly  in  point  and  indeed  the  facts  aie 
identical  with  the  small  distinction  that  in 
that  case  the  plaintiff  advanced  monies  to 
defendant  out  and  out  whereas  in  this  case 
he  merely  discounted  the  hundis,  the  result 
being  the  same. 

Following  these  authorities  I  find  that 
although  the  parties  have  had  dealings  as 
commission  agent  and  principal  in  virtue 
of  the  mutual  open  and  cuirent  account 
which  relates  both  to  these  dealings  and  to 
the  hujidi  transactions  the  suit  is  governed 
by  Art.  85,  and,  therefore,  is  within  time. 

I  accept  the  revision,  set  aside  the  finding 
of  the  Trial  Court  and  return  the  case  for 
decision  on  the  merits.  Costs  of  the  peti- 
tioner will  be  paid  by  respondents 

N.  it.  Revision  accepted. 

Case  returned. 

(1)  25  Ind  Cas  415,  23  P  R  1915,  35  P  W   R  1915, 
100  P  L  R  1915 

(2)  62  Ind  Cas  898,    4  L,  L  J  217,  (1022J   A  I    R 
(L)  188 

(3)  59  Ind  Cas  669,   3  LT    P  L  R  (L  )  3,  26  P  W 
R   1921,  31  P  L  R  1919 

(4)  21  Ind.  Cas  773,  14  M  L  T  498 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No  275  OF  1925. 

November  9,  1925. 
Presf  ntm— Mr.  Justice  Stuart,  Chief  Judge, 

and  Mr.  Justice  Misra. 

Musammat  RAISUNNISA  WIFB  OF 

ABDUL  MAJID— -PLAINTIFF— APPELLANT 

versus 

ZORAWAR  SAH— DEFENDANT- 
RESPONDENT. 
Mortgagor  and  mortgagee,  -  Deedt  simple,  executed  by 


mortgagor  in  favour  of  mortgagee — Mortgagor,  heir*  oft 
whether  bound  Limitation—Claim  by  way  of  defence 
-  Limitation,  whether  can  be,  pleaded 

A  simple  d?3d  executed  by  the  moitgagor  in  favour 
of  th?  mortgage;  and  containing  the  stipulation  that 
the  money  taken  under  it  shall  be  paid  at  the  time  of 
the  redemption  of  the  mortgage  can  be  enforced 
against  tho  heirs  of  the  mortgagor 

Ram  Adhin    Misra  v  Sitla    Bakfah  Singh,    25  Ind 
Cas   ()05,  17  O  C  ,J(H,  liar  Pershad  v  Ram  Chander, 
6J  Ind  Cas  750,  41  A  ,37,    19  A  L    J  807,  3  U  P  L 
It.  (A)    ],*9,   (1022)  A   I    R    (A)   174,  Allu  Khan  v 
Roshan  Khan,  4.  A    85,  AWN    (1885)  133,  2  Ind 
Dec  (N  3  )  G74,  Han  Mahadaji  Savatkarv  Balambhat 
Rafjhunath  Kharc,  9  B   233,  5  Ind  Dec  (N  s)  155  and 
Gaya  Piauul  v    Rachpal,    70  Ind     Cas  66,   9O  L  J 
484,  4  U  P  L  K  (0)  110,  (1923)  A  I    R  (O ;  24,  re- 
fen  ed  to 

It  is  a  settled  rule  of  law  that  no  limitation  can  be 
pleaded  against  a  claim  made  by  way  of  defence  [p. 
677,  col  I] 

Nawndh  Lai  v  Mahadeo  Singh,  65  Ind  Cas  401,  25 
O  r  134,  8  O  L  J  640,  (1022)  A  I  R  (0  )  58,  refer- 
red to 

Second  appeal  against  the  judgment 
and  decree  of  the  Subordinate  Judge, 
Bara  Banki,  dated  the  10th  February  1925, 
upholding  that  of  the  Munsif,  Patehpur, 
dated  the  1st  September  1924. 

Mr.  Ghulam  Hasan  for.  Mr.   A.  Rauf,   for 
the  Appellant 
Mr  Bisheshar  Nath,  for  the  Respondent. 

JUDGMENT. 

Misra9J. — This  is  a  second  appeal 
arising  out  of  a  suit  for  redemption  brought 
by  the  plaintiff-appellant  against  the  de- 
fendant-respondent and  certain  other  per- 
sons. The  facts  so  far  as  they  are  material 
for  purposes  of  this  appeal  are  as  follows  — 

One  Jam  AH  executed,  on  the  17th  June 
1865,  a  usufructuary  mortgage  for  Rs.  50 
in  respect  of  certain  lands,  situate  in  village1 
Karmulapur,  District  Bara  Banki,  in  favour 
of  one  Lodhey,  the  father  of  defendants 
Nos.  2  and  3  It  was  stipulated  in  the 
deed  that  the  profits  of  the  property  mort- 
gaged were  to  be  appropriated  by  the 
mortgagee  in  lieu  of  interest.  Subsequently, 
under  a  deed  executed  on  the  17th  January 
1870,  the  said  Jam  Ali  borrowed  a  sum  of 
Rs.  150  from  the  same  Lodhey  agreeing  to 
pay  the  said  amount  by  instalments  and  in 
case  the  money  was  not  paid  at  the  stipu- 
lated time  it  was  to  be  paid  with  interest 
at  2  per  cent,  per  mensem  at  the  time  of 
redemption.  It  was  also  stipulated  in  this 
deed  that  without  the  payment  of  the 
money  borrowed  thereunder  the  mortgagor 
would  not  be  entitled  to  redeem  the  pro- 
perty mortgaged  under  the  deed  of  1865. 
The  plaintiff- appellant,  Musammat  Raisun- 
nisa,  who  seeks  redemption,  is  one  of 


676 


feAtSUNNlSA 


heirs  of  Jam  AH,  the  original  mortgagor, 
being  one  of  hie  grand-daughters  and  who 
is  admitted  for  the  purposes  of  this  litiga- 
tion, by  the  parties  to  be  the  sole  heir  and 
representative  of  Jam  Ali,  the  mortgagor. 
The  defendant-respondent,  Zorawar  Sah,  is 
also  admitted  to  be  the  sole  representative 
of  the  mortgagee. 

The  contest  mainly  centred  round  the 
deed  of  the  17th  January  1870.  Its  genuine- 
ness was  denied  by  the  appellant ;  it 
was  urged  on  her  behalf  that  the  deed,  even 
if  genuine,  did  not  create  any  charge  on 
the  property  in  suit  and  she  was  not  liable 
to  pay  the  money  *due  under  it.  It  was 
also  contended  that  the  deed  being  un- 
registered, could  not  operate  as  a  charge 
on  the  property  mortgaged  and  that,  in 
any  case,  she  was  not  bound  to  pay  the 
amount  of  money  due  under  it  since  the 
claim  regarding  that  amount  was  barred  by 
limitation.  The  last  plea  was  not  raised 
in  either  of  the  Courts  below,  but  has  been 
•urged  for  the  first  time  here, 

The  Trial  Court,  the  Munsif  of  Fatehpur, 
by  his  decree  dated  the  1st  of  September 
1924,  decided  that  the  deed  of  1870  was 
genuine  and  that  the  plaintiff  was  bound 
to  pay  the  money  due  under  it.  He  accord- 
ipgly  decreed  the  plaintiff's  claim  for 
redemption  directing  her  to  pay  the  princi- 
pal sum  of  Rs.  50  due  under  the  deed  of 
1865  and  Rs,  1,878  due  under  the  deed  of 
1870. 

The  plaintiff  appealed  against  this  decree 
to  the  Court  of  the  Subordinate  Judge  of 
Bpra  Banki  and  the  learned  Subordinate 
Judge  by  his  decree  dated  the  10th  Febru- 
ary 1925  has  confirmed  the  decree  of  the 
Tjrial  Court  and  dismissed  the  plaintiff's 
appeal. 

The  plaintiff  has  again  appealed  to  this 
Court  and  the  contentions  raised  on  her 
behalf  are  three- fold  ; 

First,  that  the  deed  of  the  17th  January 
1870  cannot  be  construed  as  a  deed  of  fur- 
ther charge; 

Secondly,  that  even  if  it  be  construed  as  a 
d$ed  of  further  charge  it  cannot  be  opera* 
tive  as  such,  being  unregistered;  and 

'  Thirdly,  that  the  claim  under  the  said 
deed  is  barred  by  limitation. 

In  respectv  of  the  first  contention  reliance 
is  placed  on  behalf  of  the  appellant  mainly 
on  a  ruling  of  the  late  Court  of  the  Judicial 
Commissioner  of  Oudh  reported  in  Ram 
4.dhin  Mi$ra  v.  Sitla  Bakhsh  Singh  (1)  in 

(I)  25  lad,  Cas,  905;  17  0,  0.  303, 


ZORAWAR  dAti.  [JMB  L  0. 

which  it  was  held  that  because  in  the  body 
of  the  deed  in  dispute  in  that  case  there 
was  nothing  to  show  that  any  interest  in 
immoveable  property  was  transferred  it 
could  not  be  considered  as  other  than  a 
simple  bojid  for  the  payment  of  the  money 
received  and  that  the  fact  that  the  exe- 
cutant of  the  deed  covenanted  that  he 
should  not  be  allowed  to  redeem  the  mort- 
gage until  he  had  satisfied  the  deed,  did 
not  render  the  deed  a  deed  of  mortgage 
or  a  deed  of  further  charge,  and  the  fact 
that  the  deed  was  described  as  a  deed  of 
further  charge  had  not  the  effect  of  mak- 
ing it  such  a  deed.  This  was  th&  vk>w 
promulgated  by  my  learned  brother,  Mr. 
Justice  Stuart,  who  decided  that  case. 
The  view  held  in  that  case>  baa  now  to  be 
accepted  with  caution  in  view  of  a  later 
Fall  Bench  decision  of  the  Allahabad  High 
Court  in  Har  Pershad  v.  Ram  Chander  (2). 
My  learned  brother  was  also  a  member  of 
the  Bench  which  decided  that  case  and 
it  appears  that  he  has  very  much  modified 
the  view  that  was  taken  by  him  iru4h^ 
above  Oudh  case.  It  is,  however,  not 
necessary  for  me  to  come  to  a  definite  deci- 
sion on  this  matter  in  this  case,  since  the 
learned  Counsel  for  the  respondent  did  not 
press  the  contention  that  the  deed  was  a 
deed  of  further  charge, 

It  is  also  unnecessary  to  decide  whether 
the  deed  can  be  considered  to  be  a  valid 
deed  in  spite  of  its  not  having  been  regis- 
tered, but  I  may  point  out  that  in  the  year 
1870  no  Registration  Act  was  in  force  in  the- 
Province  of  Oudh,  the  first  Registration 
Act  introduced  in  this  Province  being  Act 
VIII  of  1871.  Till  the  introduction  of  the 
said  Act  registration  in  this  Province  was 
governed  by  the  registration  rules  pro* 
mulgated  by  the  Judicial  Commissioner  of 
Oudh  and  under  those  rules  it  was  not 
compulsory  to  register  deeds  like  the  one 
before  us. 

The  main  point  which  has  been  argued 
on  both  sides  in  this  Court  is  whether  the 
deed,  considering  it  to  be  a  simple  deed, 
can  be  enforced*  against  the  appellant.  I 
have  no  doubt,  in  my  mind,  that  the  plaintiff- 
appellant  being  one  of  the  heirs  and  re- 
presentatives of  the  original  mortgagor, 
Jam  Ali,  cannot  escape  the  liability  of  the 
payment  under  the  deed  in  dispute,  I 
am  supported  in  this  view  by  decisions  of 
the  various  High  Courts  as  well  as  by 

(2)  63  Ind,  Cas,  750;  44  A.  37;  19  A.  L.  J.  807;  3  V, 
P,  Lu  R,  (A,)  139;  (1922;  A,  I,  B,  (A,)  174  ^F,  B,), 


M.  S.  S.  CHETTYAU  FIRM  V,  MA  TIN  TIN, 


[92  I.  0.  1*26] 

those  of  the  late  Court  of  the  Judicial 
Commissioner  of  Oudh,  vide  Allu  Khan  v. 
Roshan  Khan  (3),  Hari  Mahadaji  Savarkar 
v.  Balambhtit  Raghnnath  Khare  (4),  Gay  a 
Prasctd  v.  Rachpal  (5)  and  Naunidh  Lai  v. 
Mahadeo  Singh  (6)  and  also  the  Oudh  case 
first  quoted  in  the  earlier  part  of  this 
judgment 

It  also  appears  to  me  that  there  is  no 
force  in  the  plea  of  limitation  raised  by 
the  learned  Counsel  for  the  appellant. 
Turning  to  the  deed  in  question  I  find 
that  it  provides  that  the  money  borrowed 
Under  it  was  to  be  paid  in  instalments 
and  that  in  case  the  instalments  provided 
for,  were  not  paid  on  due  dates  specified 
therein,  the  mortgagor  was  to  pay  the  sum 
due  under  the  deed  with  interevSt  at  the 
time  of  redemption.  It  is,  therefore,  clear 
that  the  mortgagee  w^s  clearly  entitled  to 
wait  for  the  money  due  under  this  deed 
and  is  competent  to  demand  it  now  when 
redemption  is  being  sought  for  against 
him.  It  is  not  competent  to  the  appellant 
to  plead  limitation  in  regard  to  a  claim  put 
forward  by  the  defendant-respondent  under 
this  deed,  because  it  is  a  settled  rule  of 
law  that  limitation  cannot  be  pleaded 
against  a  claim  made  by  way  of  defence. 
If  any  authority  were  needed  in  support  of 
the  point  I  would  quote  a  case  decided  by 
a  Bench  of  the  late  Court  of  the  Judicial 
Commissioner  of  Oudh  of  which  my  learn- 
ed brother,  Mr  Justice  Stuart,  was  a  mem- 
ber. It  is  reported  in  Meharban  Singh  v. 
Raghunath  Singh  (7), 

I  am  of  opinion  that  there  is  no  force  in 
this  appeal. 

L  therefore,  dismiss  the  appeal  with  costs. 

Stuart,  O.  J. — 1  agree  with  my  learned 
brother  as  to  the  order  passed  in  this  appeal, 
atid  add  that  my  views  as  to  the  interpreta- 
tion and  effect  of  deeds  of  this  nature  will 
"be  found  in  my  decision  in  Har  Pershdd  v. 
Ram  Chander  (2). 

N,  H.  Appeal  dismissed 

(3)  4  A  85,  A,  W,  N.  (1885X133,    2  Ind  Dec.  (N.  s) 
6?4. 

(4)  9  B  233,  5  Itid  Dec  (N  s )  155 

(5)  70  Ind  Gas  66,  9  0  L  J  484;  4  tT  P  L   R.  (O ) 
110,  (1923)  A.  I.  R  (O.)  24. 

(6)  05  Iixd    Cas  401,    25  0.  0    134,   8  O  L    J.  640; 
(1022)  A  I  R  (0 )  58 

V  (f)  49  fed  Cas,115,  50.  L,  J  768. 


677 


RANGOON  HIGH  COURT. 

SPECIAL  FIRST  APPEAL  No.  15  OF  1925 

June  4,  1925. 
Presents—Mr.  Justice  Rutledge  and 

Mr  Justice  Heald. 
M.  S.  S,  OHETTYAR 


versus 
MA  TIN  TIN—  RESPONDENT 

Civil  Procedure  Code  (Act  V  of  1908),  0  XXI,  r  2 
—  Agreement  not  to  execute  decree-  -Adjustment  of 
decree  -Certification,  absence,  of,  effect  of 

An  agreement  by  a  decree-holder  not  to  execute  the 
decree  amounts  to  an  adjustment  01  satisfaction  of  the 
deoiee  and  unless  it  is  certified  in  accordance  with 
the  provisions  of  r  2  of  O  XXI,  0  P  C  ,  it  cannot  be 
recognised  by  the  Executing  Court  as  a  bar  to  execu- 
tion 

Appeal  against  an  order  of  the  Small 
Cause  Court,  Rangoon,  in  C.  E.  No.  5166  of 
1924 

Mr   Bt  K   Naidu,  for  the  Appellants, 
Mr.  U  Sein  Tun  Aung,  for  the    Respond- 
ent. 

JUDGMENT.—  In  Suit  No  1268  of 
1921  in  the  Court  of  Small  Causes,  Rangoon, 
appellant  obtained  a  decree  against  re- 
spondent and  two  others,  namely,  Po  U  and 
respondent's  husband  V.  Paul,  for  Rs  2,000 
(with  interest)  alleged  to  be  due  on  a  pro- 
missory note  for  R?  5,000  executed  by  Po 
U  and  Paul,  respondent  having  guaranteed 
payment  of  that  amount. 

Recently  appellant  applied  for  execution 
against  respondent  by  attachment  and  sale 
of  certain  furniture  belonging  to  her  in 
Rangoon. 

Respondent  objected  to  his  application 
on  the  ground  that  in  consideration  of  her 
paying  in  full  the  amount  of  the  decree 
which  appellant  had  obtained  against  the 
flame  defendants  in  another  suit,  appellant 
had  agreed  not  to  take  out  execution  of  the 
decree  in  the  present  suit  against  either  her 
or  her  husband, 

Appellant  admitted  that  the  decree  in 
the  other  suit  had  been  satisfied,  but  he 
said  that  the  money  was  paid  by  one  Po 
Hman  and  not  by  respondent  and  he  denied 
that  he  entered  into  any  such  agreement  as 
that  alleged  or  that  such  agreement  if  made 
would  be  effective. 

The  learned  Judge  of  the  Small  Cause 
Court,  after  hearing  the  evidence  called  by 
the  parties,  held  that  the  agreement  was 
proved  and  dismissed  appellant's  applica- 
tion for  execution. 

Appellant  appeals  on  the  grounds  that 
the  agreement  was  not  proved  and  that  even 
if  it  was,  it  could  not  be  recognized  by  the 


678 


GOPAL  V.  KRISHNARAO. 

had 


Court-,  executing  the  decree  because,  it 
not  been  certified  under  O.  XXI,  r.  2. 

Respondent^  learned  Advocate  replies 
that  the  agreement  did  not  amount  to  satis- 
faction or  adjustment  of  the  decree  and 
that,  therefore,  there  was  no  bar  to  its  re- 
cognition. 

We  have  no  doubt  that  such  an  agree- 
ment would  amount  to  an  adjustment  or 
satisfaction  of  the  decree  as  against  res- 
pondent, and  that  as  it  was  not  certified 
it  could  not  be  recognized  as  a  bar  to  exe- 
cution. 

We,  therefore,  set  aside  the  lower  Court's 
order  dismissing  appellant's  application 
and  direct  the  Court  to  deal  with  the  ap- 
plication according  to  law. 

Respondent  will  pay  appellant's  costs  in 
'this  Court— Advocate's  fee  to  be  two  gold 
mohurs, 

z.  K.  Application  dismissed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  232  OF  1925. 

December  2,  1925. 

Present :— Mr.  Findlay,  Officiating  J.  C. 
GOPAL  AND  ANOTHER-— PLAINTIFFS- 
APPELLANTS 

versus 

KRISHNARAO— DEFENDANT— 
RESPONDENT. 

Nuisance  -  Latrine — Test. 

The  question  as  to  whether  a  latrine  constitutes  a 
nuisance  from  the  legal  point  of  view,  must  be  judged 
by  general  standards  on  the  principle  enunciated  in 
the  legal  maxim  lex  non  favet  votis  delicatwiim,  and 
a  particular  latrine  cannot  be  such  a  nuisance  if 
latrines  of  the  sort  are  common  all  over  the  city,  I  p 
678,  col  2.] 

Appeal  against  a  decree  of  the  Addi- 
tional District  Judge,  Nagpur,  dated  the 
24th  January  1925,  in  Civil  Appeal  No.  86 
of  1924. 

Mr.  M.  R.  Bobde,  for  the  Appellants. 

JUDGMENT.— The  facts  of  this  case 
are  sufficiently  clear  from  the  judgments 
of  the  lower  Courts.  What  has  beer*  urged 
on  behalf  of  the  appellants  is  that  on  the 
facts  proved  in  this  case  a  legal  inference 
of  a  private  nuisance  should  have  been 
drawn,  and  in  this  connection  I  have  been 
referred  to  the  decision  in  Bai  Bhicaiji  v. 
Perojshaw  Jiwanji  (1).  I  may  say  at  once 


(1)  33  Ind. 
1040. 


Gas.  192;    40   B.  401;    17    Bom.    L.  K. 


[92 1.  0. 1926] 

that  the  facts  of  that  case  are  very  dis- 
similar from  those  of  the  present  one.  In 
the  Bombay  case  a  large  set  of  stables  for 
hackney  carriages  and  their  horses  were  put 
up  close  to  the  plaintiff's  residence.  Here, 
on  the  other  hand,  we  are  dealing  with  a 
crowded  portion  of  Nagpur  City,  in  which 
the  provision  of  a  private  latrine  for  most 
of  the  houses  is  practically  a  necessity.  The 
previous  latrine  of  Krishnarao  was  appa- 
rently built  to  the  south  of  his  house, 
whereas  the  present  one  is  to  the  west.  The 
latrine  trap  is  only  some  15  feet  from  the 
plaintiffs1  door,  but,  on  the  other  hand,  the 
evidence  shows  that  it  has  been  constructed 
on  the  latest  principles  and  that  the  trap 
for  removing  sewage  is  concealed  from  any 
one  standing  at  the  plaintiffs1  door  by  a 
wall,  and  opens  towards  the  north. 

It  is  true  that  the  evidence  of  Dr.  Sen 
shows  that  he  had  originally  recommended 
the  original  site  for  the  latrine  but  the 
Building  Sub-Committee  apparently  sanc- 
tioned the  present  site.  1  have  considered 
the  evidence  of  the  3  expert  witnesses  and 
it  does  not  seem  to  me  to  make  out  a  case 
of  a  private  nuisance.  One  has  a  certain 
amount  of  sympathy  with  a  person  of  the 
plaintiffs1  position,  but  in  the  present  con- 
gested state  of  Nagpur  City  it  seems  to 
me  that  it  would  be  a  serious  matter  to  pre- 
dicate of  the  present  latrine  that  it  con- 
stitutes a  private  nuisance.  So  far  as  one 
can  judge  from  the  map,  the  same  pro- 
position might  apply  equally  well  to  any 
and  every  other  possible  site  for  the  latrine 
opening,  as  it  must  do,  on  to  a  public  road 
for  convenience  of  removal  of  the  sewage 
by  the  Municipal  sweepers.  Happily,  there- 
fore, it  does  not  seem  necessary  for  me, 
from  the  legal  point  of  view,  to  hold  that 
the  latrine  in  question  constitutes  a  nuis- 
ance of  the  kind  the  plaintiffs  allege.  Dr. 
Sen's  opinion  is  that  it  is  not  such  a  nuis- 
ance, and  Dr.  Paranjpe  (D.  W.  No.  1)  is  also 
of  the  similar  opinion. 

The  question  of  whether  a  latrine  like 
the  present  constitutes  a  nuisance  from' 
the  legal  point  of  view,  must  be  judged 
by  general  standards  and,  as  Stanyon,  A.  J. 
0.,  pointed  out  in  Municipal  Committee  of 
Saugor  v.  Nilkanth  (2)  "lex  non  favet  votis 
delicatorum"  Now,  in  the  present  instance 
the  facts  are  that  latrines  of  the  sort  are 
common  all  over  Nagpur  City.  They  are 
what  may  be  termed  an  evil  necessity.  In 

(2)  31  Ind.  Oa».  62,  11 N.  L  R.  132. 


[»2  I.  0.  192GJ 

the  congested  state  of  Nagpur  City  it  is 
almost  inevitable  that  such  latrines  or  their 
trap  doors  may  be  in  close  proximity,  or 
even  in  view  of  dwelling  houses,  although 
every  endeavour  is  presumably  made  to 
avoid  this  In  the  present  instance  any 
site  adopted  for  the  latrine  would  probably 
cause  annoyance  to  the  occupant  of  some 
adjoining  house  were  he  as  fastidious  as  the 
plaintiffs.  It  is  further  clear  that  the 
latrine  constructed  is  of  an  improved  type 
and  that  every  effort  has  been  made  to 
reduce  any  nuisance  caused  thereby 

In  the  circumstances  I  think  the  lower 
Courts  were  correct  in  holding  that  a  private 
nuisance  has  not  been  established  and  the 
appeal  is  dismissed  without  notice  to  the 
respondent 

G  K,  D.  Appeal  dismissed 


KtEAR  NATH  V.  BHIKHAM  SINGH. 


679 


OUDH  CHIEF  COURT. 

SECOND  Cmr,  APPE\L  No  2Gtf  OF  1925, 

December  7,  1925 
Present: — Mr   Justice  Stuart,  Chief  Judge, 

and  Mr.  Justice  Misra. 
KIDAR  MATH— PLAINTIFF— APPELLANT 

versus 

BHIKHAM  SINGH  AND  OTHERS- 
DEFENDANTS — RESPONDENTS 

Hindu  Law  Joint  family  Mortgage,  High  rate  of 
interest  Legal  necessity  Burden  of  pi  oof  Second 
appeal  Discretion  of  lower  Court  -  Intnfeience 

The  burden  of  proving  that  the  late  of  interest 
provided  foi  in  a  mortgage-deed  executed  by  a 
member  of  a  joint  Hindu  family  is  justified  by  legal 
necessity  lies  on  the  moitgagee  [p  (180,  col  1  ] 

Nawab  Nazir  Begam  v  Rao  Raqhtinath,  50  Ind  Gas. 
434,  41  A  571,  36  M  L  J  521,  17  A  L  J  501,  23  O 
W  N  700,  21  Bom  L  R  481,  26  M.  L  T  40,  30  C  L. 
J  86,  (1919)  M  VV.  N  498,  1  U  P  L  R  (P  0 )  49,  46 
I  A  145  (P  G )  and  Dargahi  v  Rajeshwan  Pershad, 
48  Ind  Gas  753,  21  O  G  265,  referred  to 

No  interference  is  justihed  m  second  appeal  \vith  a 
discretion  exercised  by  the  lower  Courts,  unless  it  is 
shown  that  the  discretion  was  exercised  in  an  un- 
reasonable manner  [p  680,  col.  2  ] 

Second  appeal  against  the  judgment 
and  decree  of  the  District  Judge,  Hardoi, 
dated  the  llth  February  1925,  confirming 
those  of  the  (Sub-Judge,  Hardoi,  dated 
the  26th  November  1924. 

Mr.  Sahg  Ram}  for  the  Appellant 

Mr.  Motilal  Saksena,  for  Respondents 
Nos.  2  and  3. 

JUDGMENT. 

Misra,  J, — This  appeal  arises  out  of  a 
suit  for  possession  brought  by  the  plaintiff- 


appellant,  Kedar  Nath  in  respect  of  a 
zemindari  share  mortgaged  to  him  under 
a  mortgage-deed  dated  8th  June  1909. 
The  suit  was  decided  by  the  Subordinate 
Judge  of  Hardoi  on  the  26th  of  November 
1924.  The  Subordinate  Judge  allowed  the 
defendants  to  redeem  and  decreed  the  suit 
only  in  case  the  defendants  did  not  choose 
to  redeem  the  property.  His  decree  has 
been  confirmed  by  the  District  Judge  of 
Hardoi  by  his  decree  dated  the  llth  Febru- 
ary 1925. 

The  mortgage-deed  on  the  basis  of  which 
possession  was  claimed  bv  the  plaintiff- 
appellant  was  executed  by  Bhikham  Singh, 
defendant  No  1,  and  his  brother  Burner 
Singh,  father  of  the  defendants  Nos.  2  and  3, 
for  Rs  326  bearing  interest  at  12  per  cent, 
per  annum  compoundable  yearly  in  favour 
of  the  plaintiff's  father  since  deceased.  The 
mortgagee  was  entitled  under  the  terms  of 
the  mortgage  to  take  possession  of  the  mort- 
gaged property  in  case  that  mortgage  was 
not  redeemed  within  the  period  of  3  years 
fixed  in  the  mortgage-deed.  Bhikham 
Singh  alone  executed  two  deeds  of  further 
charge  each  for  Rs.  100  one  on  the  30th 
June,  1914,  and  the  other  on  the  10th 
November  1917 

The  defendants  Nos.  4  to  8  were  also  made 
parties  to  the  suit  as  subsequent  trans- 
ferees. 

The  defendant  No.  1  Bhikham  Singh  did 
not  contest  the  plaintiff's  claim  and  defend- 
ants Nos  2  and  3  claimed  redemption  in 
the  present  suit  and  the  plaintiff  did  not 
dispute  their  right.  The  case  was  tried 
ex  parte  against  defendants  Nos.  4  and  5 
while  defendants  Nos  6  to  8  expressed 
their  willingness  to  pay  alb  the  money  due 
on  the  mortgage-deed  and  the  deed  of  fur- 
ther charge.  The  real  contesting  defend* 
ants  in  the  case  were  defendants  Nos.  2  and 
3  who  claimed  redemption  in  the  case  and 
contended  that  the  rate  of  interest  provided 
in  the  mortgage-deed  could  not  be  enforced 
as  it  was  not  justified  by  legal  necessity. 
On  the  date  the  issues  were  framed  in  the 
case  by  the  Trial  Court  the  plaintiff's 
Pleader  expressly  stated  before  the  Court 
that  the  plaintiff  had  no  objection  to  allow 
the  defendants  to  redeem  the  property 
mortgaged  in  this  suit 

The  point  that  remained  for  decision  in 
the  case  was  the  rate  of  interest  which  the 
defendants  should  be  asked  to  pay  in  case 
they  chose  to  redeem  the  property.  The 
learned  Subordinate  Judge  came  to  the  coa« 


eso 


KIDAR  NATH  p.  BHIKHAM  S1MGH, 


fclusion  that  the  rate  of  interest  provided  in 
the  deed  was  not  justified  by  legal  necessity 
and  RO  reduced  it  to  12  per  cent,  per  annum 
simple.  His  decree  was  confiimed  by  the 
learned  District  Judge  in  appeal. 

Tn  second  appeal  before  us  only  two 
points  jare  urged  on  behalf  ot  the  appellant; 
the  first  was  to  the  effect  that  it  was  not 
within  the  jurisdiction  of  the  Courts  below 
to  pass  a  decree  for  redemption  in  a  suit  in 
which  the  appellant  claimed  possession  of 
the  property  ;  the  second  was  to  the  effect 
that  the  rate  of  interest  provided  in  the 
deed  was  a  fair  rate  of  interest  and  should 
not  have  been  reduced  by  the  Courts  below. 
A  subsidiary  question  regarding  the  costs 
pf  the  suit  was  also  raised  which  would  be 
discussed  at  the  end  of  our  judgment 

On  the  first  point  we  are  clearly  of 
opinion  that  the  contention  raised  by  the 
learned  Pleader  on  behalf  of  the  appellant 
cannot  be  sustained.  We  have  indicated 
in  the  earliest  portion  of  our  judgment  that 
the  plaintiff's  Pleader  expressed  willingness 
on  behalf  of  his  client  to  allow  the  defend- 
ant to  redeem  the  property  and  it  was  in 
these  circumstances  that  the  Trial  Court 
passed  a  decree  for  redejnptiqn  in  favour 
of  the  defendant  In  fact  of  this  clear 
attitude  taken  on  behalf  of  the  plaintiff- 
appellant  we  cannot  now  allow  him  in 
second  appeal  to  raise  the  contention  that 
the  Courts  below  h$d  no  jurisdiction  to 
decree  redemption  in  the  present  suit.  We, 
therefore,  overrule  that  contention. 

On  the  second  point  the  law  as  laid  down 
by  their  Lordships  of  the  Privy  Council  is 
quite  clear.  In  Nawab  Nazir  Begum  v.  Rao 
ftaghunath  (1),  quoted  in  his  judgment  by 
the  learned  District  Judge,  their  Lordships 
of  the  Privy  Ccmncil  laid  it  down  that  it 
was  incumbent  on  those  who  supported  the 
mortgage  made  by  the  manager  of  a  joint 
Hindu  family  to  show  not  only  that  there 
was  necessity  to  borrow  but  it  was  not 
unreasonable  to  borrow  at  such  a  high  rate 
and  upon  such  terms  and  if  it  was  not 
shown  that  there  was  any  necessity  to 
borrow  at  the  rate  and  upon  such  terms 
as  contained  in  the  mortgage-deed  that  rate 
and  those  terms  cannot  stand.  It  is,  there- 
fore, clear  that  the  burden  of  proving  that 
the  rate  of  interest  provided  for  in  the  deed 
was  justified  by  legal  necessity  lay  on  the 

(1)  SOJiul  Cas  434,  4*  A  571;  36  M  L  J  521;  17 
A.K  J  5i»I;  230.  W  N.  700,  21  Horn  L  3  484;  26 
M.  L  T  40,  30  O  L.  J  86;  (1919)  M.  W  N  498  1  U, 
J\  UP,  (P  0)49,461.  A.145(P  C), 


[92 1.  0. 1926] 

plaintiff.  There  was  no  evidence  given  bp 
him  in  proof  of  such  necessity.  The  only 
evidence  to  which  our  attention  was  drawn 
by  the  learned  Pleader  on  behajf  of  the 
plaintiff-appellant  was  that  in  a  previous 
deed  of  mortgage  executed  by  the  grand- 
father of  Bhikharn  Singh  the  sam.e  rate  0f 
interest  was  provided  for  as  in  the  .deed  i# 
suit  and  that  the  said  deed  formed  part  /pf 
the  consideration  of  the  deed  in  jquestion 
in  the  present  suit.  We,  however,  do  jxot 
consider  that  that  could  be  considered  #s 
the  evidence  of  the  legal  necessity  regard- 
ing the  rate  of  interest  provided  for  in  the 
deed  in  suit.  There  may  be  necessity  for 
contracting  a  loan  at  a  particular  rate  .of 
interest  and  at  a  certain  time  and  yet  there 
may  be  no  necessity  for  contracting  $  loan 
at  the  same  rate  at  some  other  time  sub- 
sequently. We,  therefore,  hold  that  the 
plaintiff-appellant  failed  to  establish  that 
the  rate  of  interest  stipulated  in  the  mort- 
gage-deed in  suit  was  justified  by  legal 
necessity  Both  the  Courts  below  have  ex- 
ercised their  discretion  by  reducing  the 
interest  from  12  per  cent,  per  annum  com- 
poundable  half  yearly  to  12  per  cent,  per 
annum  simple  and  no  argument  has  been 
addressed  to  us  to  justify  us  in  holding 
that  the  discretion  was  exercised  wrongly 
or  in  an  unreasonable  manner.  Unless  it 
can  be  shown  that  the  discretion  exercised 
by  the  Courts  below  was  exercised  in  an 
unreasonable  manner  no  case  will  have 
been  made  out  for  interference  by  us,  in 
appeal  [vide  Dargahi  v.  Rajeshwari  Pershad 
(2)]. 

We,  therefore,  maintain  the  decision  of 
the  Courts  below  on  the  point  of  legal 
necessity  as  well. 

Regarding  the  question  of  costs  it  was 
urged  before  us  that  the  Courts  below  whila 
allowing  the  defendants  to  redeem  the  pro- 
perty ^hould  have  ordered  them  to  pay  costg 
of  the  suit  as  well,  declaring  theip  to  be  a 
charge  on  the  property  to  be  redeemed-  The 
Trial  Court  ordered  that  the  plaintiff's  costs 
in  either  case  should  be  paid  by  the  defend- 
ants Nos.  1  to  3.  The  defendants  Nos.  4  to  8 
who  are  subsequent  transferees  were  not 
ordered  to  pay  costs  of  the  suit  We  find 
that  no  separate  coats  were  incurred  by  the 
plaintiff  owing  to  the  defendants  Nos.  4  to 
8  having  been  impleaded  in  the  case.  The 
trial  against  them  was  ex  parte  and  no 
case  has  been  made  out  for  allowing  costs 

(2)  48  Ind.  Cas,  753;  21  0.   C.  ?65, 


[92  I.  0. 1926] 

to  the  plaintiff  against  those  defendants 
We  also  find  that  the  question  of  costs,  in 
the  form  in  which  it  has  been  raised  before 
us,  was  not  raised  before  the  learned  Dis- 
trict Judge  in  appeal.  We,  therefore,  reject 
this  contention  relating  to  costs  in  second 
appeal. 

The  appeal,  therefore,  fails  and  we  diamiss 
it  with  costs. 

Stuart,  C»  J.— I^concur. 

N.  H.  Appealtdismissed, 


CHANDRTKA  PUASAD  V.  NAZIR  BU8AIN, 


681 


PRIVY  COUNCIL. 

APPEAL  FHQM  THE  CALCUTTA  HIGH  COURT. 

June  19,  1925. 

Present  — Lord  Shaw,  Lord  Carson, 

Sir  John  Edge  and  Mr  Ameer  Ah 

Raja  BHUPENDRA  NARAYAN  SINGH 

BAHADUR— AppBLLiNT 

vzrsus 
MADAR  BAKHSH  SHEIKH,  SINCE 

DECEASED,  AND  OPHKKS — RESPONDENTS. 

Bengal  t'atni  Taluks  Regulation  (VIII  of  1X19),  ss  8, 
10 — Patni  sale, — Notice,  service  of  -Failure  to  comply 
with  requn em ents  of  sections  -Sale,  validity  of 

Failure  to  comply  strictly  with  the  requuements 
of  sa  8  and  10  of  the  Bengal  Patni  Taluks  Regula- 
tion is  fatal  to  Lhe  validity  of  a  patni  sale 

Appeal  from  a  decree  and  judgment  of 
the  Calcutta  High  Court,  affirming  that 
of  the  Court  of  the  District  Judge,  Birbhum. 

Sir  Lowndes,  K.  C.  and  Mi,  B.  Dube,  for  the 
Appellant 

Mr  E.  B.  Raikes,  for  the  Respondent. 

JUDGMENT. 

Lord  Shaw. — Their  Loidships  have 
heard  the  argument  of  Sir  George  Lowndea 
in  this  case.  He  has  traversed  ground 
which  has  been  for  many  years  familiar  in 
Bengal.  The  only  question  in  the  case  is 
whether  ss  8  and  10  of  the  Regulations  re- 
ferred to  were  complied  with 

The  only  point  that  now  remains  on  the 
appeal  is,  there  having  been  no  general 
notice  put  up  as  the  Act  requires,  whether 
the  objection  under  s.  10  of  the  Regulations 
is  not  instantly  fatal  to  the  present  appel- 
lant's case.  Their  Lordships,  having  heard 
the  argument,  think  that  nothing  has  been 
pleaded  which  would  induce  them,  to  vary 
the  opiqion  which  has  been  delivered  by 
the  Courts  below.  In  their  Lordships1  opin- 
ion the  appeal  accordingly  ought  to  be 


dismssed  and  they  will  humbly  advise  His 

Majesty  accordingly. 
z,  K  Appeal  dismissed 

Solicitors    for    the     Appellant. — Messrs. 

W.  W.  Box  &  Co. 
Solicitor  for   the     Respondent, — Mr.    K. 

Mackic, 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  322  OF  1925. 

December  H,  1925 
Present:  —  Mr  Justice  Ashwortb  and 

Mr  Justice  Miara. 

CHANDRIKA  PRASAD  SON  OF 

JAGANNATH—  DEFENDANT—  APPELLANT 

versus 

NAZIR  HUSAIN  AND  ANOTHER  —  DEFEND- 
ANTS—RESPONDENTS. 

Hindu    Law  —  Joint     family  —Charge,     deed    of  __ 
xcessive    interest—  A  dmission    of    propriety    of    ZTI- 


e?ct, 

A  co-parcener  of  a  Hindu  joint  family  cannot  be 
allowed  to  impugn  the  rate  of  interest  in  any  deed  to 
which  he  himself  is  a  party,  or  where  by  his  state- 
ments or  conduct,  he  must  be  deemed  to  have  ad- 
mitted the  propiiety  of  the  late  [p  682,  col  1  ] 

Where  a  co-parcener  executes  a  deed  of  fuither 
charge,  in  which  lie  recites  earlier  deeds  of  further 
charge  executed  by  othei  co-parceners,  lie  should  be 
inferred  to  have  admitted  their  validity  in  every 
respect,  and  cannot  be  allowed  subsequently  to  set  up 
that  the  earlier  de^ds  were  for  an  excessive  rate  of 
interest  [ibid] 

Appeal  against  the  judgment  and  decree 
of  the  Second  Additional  Hub-Judge,  Luck- 
now,  dated  the  27th  February  1925,  confirm- 
ing those  of  the  Munsif,  District  Lucknow 
dated  the  23rd  September  1924.  ' 

Messrs  Ganga  Dayal  and  Murari  Lai,  for 
the  Appellant. 

Mr  Bishehswar  Dayal  Sriuastava,,  for 
Respondent  No.  1. 

JUDGMENT.—  This  appeal  arises  out 
of  a  suit  brought  by  the  transferee  of  the 
interest  of  two  mortgagors.  The  deed  in 
question  was  dated  the  1st  of  Maroh  1909 
and  was  a  usufructuary  mortgage  for  Rs.  800 
re-payable  in  12  years,  it  is  not  now  in  dis- 
pute that  by  four  subsequent  mortgages  set 
forth  in  the  judgment  of  the  lower  Appellate 
Oourt,  the  principal  sum  secured  by  the 
mortgage-deed  was  increased  by  Rs.  510  to- 
gether with  interest  It  is,  however,  a  ques- 
tion to  be  decided  in  this  appeal  whether 
the  lower  Courts  were  right  in  reducing  the 
rate  of  interest  secured  by  these  four  deeds 
of  further  charge  The  second  point  is 


CHANDRIKA  PRASAD  V.  NAZIH  HOSAIN, 

ther  under  the  terms  of  the  parent  deed, 

the  mortgagors  were  liable  for   a  sum  in 

respect  of  a  certain  area  which  had  remain- 
ed in  their  possession.    The  third  point  is 

whether  the    lower    Courts    should    have 

awarded  interest  from  the  date  up  to  which 

its  decree  directed  payment  to  be  made  to 

the  date  of  actual  realization  of  payment. 

The  last  point  is  whether  the  lower  Courts 

were  right  in  refusing  to  award  the  costs  to 

the  mortgagee. 
As  to  the  first  question  Exs.  A2  and  A3 

are  deeds  of  further  charge    executed  by 

Subh  Karan  Singh,  the  elder  mortgagor, 

on  his  own  behalf  and  on    behalf  of  his 

brother,    Naurang    Singh,  who    was  then 

a  minor.    The  rate  of  interest  might   have 

been  challenged    by  Naurang  Singh.    So 

far  from  doing  so  we  find  that  Exs.  A4  and 

A5  which  are  by  Naurang  Singh  on  behalf 

of    himself   and  his  brother    Subh    Karan 

Singh  (who  was  at  the  time  in  Jail)  recite 

the  fact  of  the  execution  of  the  deeds  Exs. 

A2  and  A3  and  profess  to  be  further  charges 

in  addition  to  the  charges  created  by  those 

first  two  deeds.    We  are  of   opinion   that 

where   a  co-parcener  executes   a    deed    of 

further  charge  in  which  he  recites  earliest 

deeds  of  further  charges  by  which  act  we 

hold  that  he  should  be  inferred   to  have 

admitted  their  validity  in  every  respect  he 

cannot  be  allowed  subsequently  to  set  up 

that  the  earlier  deeds  were  for  an  excessive 

rate  of  interest.    Apart  from  this,  it  may  be 

stated  that  the  rate  of  interest  in  all  the  four 

deeds  was  the  same.  Neither  brother  could, 

therefore,  have  been  allowed  to  contend  that 

what  he  himself  thought  a  proper  rate  was 

not  a  proper  rate  for  his  brother  to  fix.  The 
transferees  of  the  brother  can  be  in  no  better 
position  than  the  brother.  The  lower  Appel- 
late Court  appears  to  us  to  have  gone  wrong 
in  ignoring  the  fact  that  the  execution  of 
these  deeds  of  further  charge  at  the  same 
late  precludes  a  case  being  set  up  by  the 
mortgagors  that  the  rate  was  excessive.  The 
decisions  quoted  by  the  lower  Appellate 
Court  refer,  we  understand,  to  cases  where  a 
co-parcener  who  is  not  a  party  to  a  deed 
by  another  co-parcener,  would  resist  the  rate 
agreed  to  by  that  other  co-parcener  as  being 
unnecessary.  They  are  no  authority  for 
allowing  the  rate  of  interest  in  any  deed  to 
be  impugned  by  a  co-parcener  who  was 
himself  a  party  to  that  deed  or  must  be 
deemed  by  his  statements  or  conduct  to  have 
admitted  the  propriety  of  the  rate. 
As  to  the  second  point,  whether  the  mort- 


[»2 1.  0.  1926] 


gagors  were  liable  for  use  and  occupation 
of  the  land  reserved  for  their  possession, 
the  deed  of  mortgage  of  the  1st  March  1909 
contains  no  provision  for  the  mortgagors 
retaining  possession  of  any  land.  It  con- 
tains a  provision  that  before  redemption  all 
claims  against  the  mortgagors  in  favour  of 
the  mortgagee  must  be  settled,  but  there  is 
no  evidence  in  this  case  to  show  what  were 
the  terms  on  which  possession  of  this  small 
area  was  retained  by  the  mortgagor.  The 
possession  must  have  been  retained  with  the 
assent  of  the  mortgagee,  but  we  cannot 
infer  that  any  rent  was  payable,  or,  if  so, 
what  rent  is  payable.  We,  therefore,  hold 
that  no  claim  in  respect  of  this  land  has 
been  madeoutagainstthemortgagorsand  the 
lower  Courts  were  right  in  refusing  to  debit 
the  mortgagor  with  any  sum  on  this  account. 
The  third  point  raised  is  whether  future 
interest  should  be  allowed  from  the  date  on 
which  by  the  decree  of  the  lower  Courts  the 
mortgage-money  was  to  be  re-paid  and  the 
date  of  actual  realization  thereof.  We  find 
nothing  in  O.  XXXIV,  r.  7,  or  in  the  prescrib- 
ed form  for  a  preliminary  decree  (given  as 
No.  5  of  Appendix  D  of  the  C.  P.  C.  )  that 
empowers  a  Court  to  award  such  interest. 
The  appellant's  learned  Pleader,  however,  in 
the  course  of  his  arguments  abandoned  con- 
test on  the  matter,  and  so  without  deciding 
the  question  from  a  legal  point  of  view  we 
reject  this  point  taken  in  the  grounds  of 
appeal 

The  last  point  to  be  decided  is  whether 
the  lower  Courts  should  have  awarded  the 
appellant  mortgagee  his  costs.  In  the  first 
appeal  the  appellant  failed  to  raise  a  ques- 
tion of  his  costs  in  the  first  Court  and  he 
cannot,  therefore,  beallovved  to  claim  them 
in  second  appeal,  As  to  hiscosts  in  the  lower 
Appellate  Court  and  in  this  Court,  we  think 
that  he  should  get  them  in  proportion  to 
his  success,  there  being  given  no  reason  by 
the  lower  Appellate  Court  for  withholding 
them. 

We  note  that  the  decree  of  the  first  Court 
does  not  agree  with  its  judgment.  The 
decree  should  have  been  one  providing,  in 
default  of  payment  of  the  sum  decreed  oil 
the  date  fixed,  for  the  property  being  sold 
inasmuch  as  the  mortgage  was  a  usufructu- 
ary one.  This  was  ordered  in  the  judgment. 
By  some  mistake  the  decree-writer  has 
framed  a  decree  directing  that  the  plaintiff 
should  be  debarred  from  the  right  to 
redeem. 
Accordingly  we  allow  this  appeal  m  part 


[92  I.   C  1926J  INDAL  V.  DEBT. 

withcost3to  the  appellant  in  both  the  lower 
Appellate  Court  and  this  Court  in  propor- 
tion to  his  success  in  this  appeal.  The 
plaintiff-respondent  will  also  get  his  costs 
in  the  lower  Appellate  Court  and  in  this 
Court  in  proportion  to  his  success  here. 
The  order  passed  by  the  first  Court  as  to 
costs  will,  however,  stand.  We  extend  the 
time  for  payment  to  six  months  from  to 
day  and  direct  the  office  to  prepare  now  a 
decree  under  0.  XXXIV,  r.  7,  according  to 
this  judgment  providing  for  redemption  of 
the  property  by  payment  within  the  said 
time  of  the  money  due,  and  for  sale  thereof, 
in  default. 
N.  H.  Appeal  partly  accepted. 


683 


NAOPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  REVISION  No.  178  OF  1925. 

October  27,  1925. 
Present:— MT.  Hallifax,  A.  J.  C. 

INDAL   AND   OTHERS—  APPLICANTS 

versus 

DEBI  AND  ANOTHER — NoN- APPLICANTS. 

Provincial  Small  Cause  Courts  Act  (IX  of  1887), 
Sch  II,  cl  (8)— Transfer  of  Property  Act  (IV  of 
1882),  s  105- -Basements  Act  (V  of  1881),  s  50- 
Allowmg  cattle  to  pass  through  field  on  payment  - 
License  or  lease-~Suit  for  recovery  of  amount  —Small 
Cause  Court,  jurisdiction  of. 

An  agreement  by  a  person  to  pay  a  certain  quantity 
of  gram  every  year  to  the  cultivator  of  a  field  on 
account  of  the  damage  to  be  sustained  by  him  owing 
to  the  cattle  of  the  former  passing  over  a  strip  of  land 
in  his  field,  is  not  a  license  but  a  lease,  as  it  creates 
a  right  in  such  person,  which  could  be  exercised  by 
his  transferees  or  his  servants  and  could  not  be  revok- 
ed by  the  grantor  [p  683,  col  2  ] 

A  suit  for  recovery  of  value  of  such  grain  is,  there- 
fore, a  suit  for  the  rent  of  a  field  and  is  not  triable 
by  a  Small  Cause  Court  \ibid.\ 

Application  for  revision  of  an  order  of 
the  Small  Cause  Court  Judge,  Dhamtari, 
dated  the  27th  March  1925,  passed  in  C,  S. 
No.  48  of  1»25. 

Mr.  M.  Y.  Sharif,  for  the  Applicants. 

Mr.  P.  C.  Dutt,  for  the  Non-Applicants. 

JUDGMENT.— It  is  alleged  in  the 
plaint  that  all  the  eight  defendants  agreed 
in  December  1922  that  they  would  pay  the 
plaintiff  a  certain  quantity  of  urad  on  the 
3rd  of  March  every  year  on  account  of  the 
damage  to  be  sustained  by  him  by  his 
allowing  them  to  take  their  cattle  or  carts 
over  a  strip  of  land  one  chain  long  and 
half  a  chain  wide  in  one  of  his  fields  and 


another  strip  six  chains  long  and  twenty 
links  wide  in  the  next  field,  which  also 
belongs  to  him.  In  answer  to  the  objec- 
tion that  the  suit  was  for  rent  and  was  not 
triable  by  a  Small  Cause  Court  the  plaintiff's 
Pleader  re-stated  the  case  in  these  words. 
"The  defendants  are  given  a  license  to  pass 
over  the  plaintiffs  land.  The  claim  ifl  for 
license  fee  and  not  for  rent.  The  suit  is 
triable  in  this  Court.  The  agreement  was 
to  pay  2\  khandiex  urad  every  year  so 
long  as  the  defendants  took  their  cattle 
through  the  plaintiff's  land.  During  the 
last  3  years  in  suit  the  defendants  have 
been  taking  the  cattle  through  plaintiff's 
land.11 

The  agreement  alleged  satisfies  the 
definition  of  a  lease  in  s.  105  of  the  Transfer 
of  Property  Act  and  the  payment  alleged 
to  have  been  promised  that  of  rent  in  the 
same  section.  The  definition  of  a  license 
in  s.  52  of  the  Easements  Act  is  a  negative 
definition,  and  it  is  at  times  difficult  to 
distinguish  between  a  license  and  a  lease 
or  an  easement.  But  this  particular  agree- 
ment created  a  right  in  the  defendants 
which  could  be  exercised  by  their  trans- 
ferees or  their  servants  or  agents  and  could 
not  be  revoked  by  the  grantor.  It  is  ap- 
parent then  from  ss  56,  59  and  60  of  the 
Easements  Act  that  it  cannot  be  a  license. 
There  is  no  suggestion  that  it  is  an  ease- 
ment. It  must,  therefore,  be  held  to  be 
lease,  and  the  payment  claimed  is  rent. 

This  stage  of  the  case  is  slightly  com- 
plicated by  the  fact  that  the  eighth  defend- 
ant Bhangi  admitted  the  claim  in  the 
lower  Court  and  that  both  he  and  the 
plaintiff  Debi  were  represented  by  the  same 
Counsel  in  this  Court,  a  matter  of  which 
the  learned  Counsel  himself  was  unaware 
till  it  was  brought  to  his  notice.  He  was 
asked  to  state  the  case  far  each  of  his 
clients  separately,  on  the  supposition  that 
the  decree  against  the  applicants  would  be 
set  aside  for  want  of  jurisdiction  in  the 
lower  Court,  and  after  consulting  them 
urged  on  behalf  of  the  plaintiff  Debi  that 
the  whole  decree  ought  to  stand  against 
Bhangi,  and  on  behalf  of  Bhangi  that  he 
ought  to  be  ordered  to  pay  only  one-eighth 
of  the  amount  claimed,  as  he  never  meant 
to  admit  his  liability  for  more  than  that. 
The  position  is  ridiculous,  and  the  whole 
decree  must  be  set  aside.  If  Bhangi  de- 
sires to  avoid  further  proceedings,  he  can 
easily  do  so  by  paying  the  share  of  the 
amount  claimed  which  he  admits  is  due  by 


MANJHI  V.  JAOANNATH  MAMJHt. 


him,  and  the  suit  can  go  on  against  the 
remaining  defendants  for  the  rest. 

The  decree  of  the  lower  Court  is  set 
asid£  and  it  is  ordered  that  the  plaint  shall 
ba  returned  to  the  plaintiff  for  presentation 
in  a  Court  having  jurisdiction  to  try  his 
suit.  All  the  costs  heretofore  incurred  by 
the  applicants  in  both  Courts  will  be  paid 
by  the  plaintiff.  The  defendant  Bhangi 
will  pay  his  own  coats.  The  Pleader's  fee 
allowed  in  the  lower  Court  is  the  grotesque 
sum  of  ten  pies  less  than  two  rupees.  In 
this  Court  it  will  be  twenty  five  rupees. 

o,  R.  D.  ,  Decree  set  aside. 


PATH  A  HIGH  COURT. 

CIVJL  APPEAL  No.  38  OF  1923. 

July  24,  1925. 

Present  :— Mr.  Justice  Ross. 
BALARAM  MANJHI  AND  OTHERS- 
PLAINTIFFS— APPELLANTS 

versus 

JAOANNATH  MANJHI  AND  OTHERS— 
DEFENDANTS  — RKSPONDENTS 

Civil  Procedure  Code  (Act  V  of  1908),  ss  115,  151 , 
0  XLI,  r.  S3— Remand,  order  of,  affecting  decision 
of  whole  suit —Appeal,  whether  lies-  Revision -Error 
9f  law  -Partition,  suit  for —Property  omitted  by  over- 
sight —Procedure 

An  order  of  remand  which  is  not  confined  to  a 
preliminary  point  but  affects  the  decision  of  the 
whole  suit,  must  be  deemed  to  have  been  made  m  the 
exercise  of  the  inherent  powers  of  the  Court  and  is 
not  open  to  appeal,  [p.  684,  col.  2  J 

An  error  of  law  does  not  affect  the  jurisdiction  of 
the  Court  and  does  not  furnish  a  ground  for  inter- 
ference in  revision,  [p.  685,  col.  1  ] 

Where  in  a  partition  suit  one  of  the  properties 
which  ought  to  be  partitioned  is,  by  oversight  or  for 
any  other  reason,  left  unpartitioned,  it  is  open  to  the 
parties  to  draw  the  attention  of  the  Court  to  the  omis- 
sion and  to  get  a  direction  from  it  in  the  matter  [ibid.] 

Appeal  from  a  decree  of  the  Sub-Judge, 
Pdrulia,  dated  the  30th  November  1922, 
reversing  that  of  the  Munsif,  Raghunath- 
pur. 

Mr.  Aehalendra  Nath  Das,  for  the  Appel- 
lants. 

Mr.  Subal  Chandra  Mazumdar,  for  the 
Respondents. 

JUDGMENT.— This  is  an  appeal 
against  an  order  of  the  Additional  Sub- 
ordinate Judge  of  Purulia  reversing  a  deci- 
sion of  the  Munsif  of  Raghunathpur  and 
remanding  a  partition  suit  for  allotment  of 
hasil  land  and  b&gan  according  to  the 
principles  1^4  cjovvn  in  the  judgment, 


[92  L  0. 1926] 

A  preliminary  objection  is  taken  on 
behalf  of  the  respondents  that  thip-  is  hot 
a  remand  under  0.  XLI,  r.  23  nor  under 
r,  25  :  it  is  remand  under  the  inherent 
power  of  the  Court  and  no  appeal  lied  : 
Raghunandan  Singh  v.  Jadunandan  Singh 
(1)  On  behalf  of  the  appellants  it  is  con- 
tended that  the  order  is  a  remand  under 
0.  XLI,  r.  23.  It  seems  to  me  pl&in  that 
this  is  not  a  case  of  a  suit  being  disposed 
of  upon  a  preliminary  point.  The  order  of 
remand  goes  on  to  the  whole  principle  on 
which  the  partition  is  to  be  made  and 
there  is  no  question  of  any  preliminary 
point  ;  it  affects  the  whole  decision  of  the 
whole  suit,  The  remand  must,  therefore,  be 
taken  to  have  been  made  under  the  in- 
herent powers  and  no  appeal  lies. 

I  am  then  asked  by  the  appellants  to 
treat  the  appeal  as  an  application  in  revi- 
sion. The  question  then  arises  as  to  whether 
there  is  any  point  of  jurisdiction.  The 
contention  on  behalf  of  the  appellants  is 
that  the  parties  having  agreed  to  the  allot- 
ment as  made  by  the  Commissioner,  the 
Subordinate  Judge  had  no  jurisdiction  to 
alter  ;  and,  secondly,  that  the  Subordinate 
Judge  had  no  jurisdiction  to  lay  down  a 
principle  of  partition  which  is  against  the 
settled  law.  Reference  was  made  to  a  pass- 
age in  the  Commissioner's  report  where 
he  says  :  "  Both  the  parties  requested  me 
to  divide  that  chak  according  Jo  their  re- 
spective shares  keeping  them  in  possession 
of  their  lands  as  far  as  practicable  and  ac- 
cordingly I  divide  the  chak  keeping  the 
parties  in  possession  of  their  lands  as  far 
as  possible."  Evidently  the  partition  made 
by  the  Commissioner  did  not  meet  the  wishes 
of  the  parties  because  it  was  objected  to 
when  the  report  came  befoie  the  Munsif. 
The  objection  of  the  defendant  was  that  as 
he  had  reclaimed  more  of  the  danga  land  he 
ought  to  be  left  in  possession  of  it.  It 
cannot  be,  therefore,  said,  with  any  show 
of  reason,  that  the  allotment  made  by  th& 
Commissioner  was  agreed  to  by  the  parties. 
All  that  the  parties  agreed  to  was  that  they 
should  be  left  in  possession  as  far  as  pos- 
sible, but  from  the  manner  in  wh'ch  this 
agreement  was  applied  in  practice  there  is 
no  reason  to  suppose  that  the  parties  agre- 
ed to  the  allotment  because  in  fact  objec- 
tion was  taken  to  the  partition  actually 
made. 


(1)  43  Ind.  Gas,  959;  3  P,  L.  J.  253,  4  P,  L.  W.  449, 


[&£  I.  0. 1926] 

With  regard  to  the  principle  of  law,  re- 
ference was  mads  on  behalf  of  the  appel- 
Igjitg  to  the  decision  of  the  Judicial  Com- 
mittee in  Midnapur  Zamindary  Co.  v. 
Naresh  Narayan  Roy  (2)  where  it  was  laid 
down  that  if  a  co-sharer  purchases  any  jote, 
right  in  thi  lands  held  in  common  by  the 
co-sharers  such  a  purchase  will  be  held  to 
have  been  a  purchase  for  the  benefit  of  all 
the  co-sharers,  and  it  is  contended  that  the 
view  that  the  Munsif  took  was  right,  name- 
ly, that  if  the  defendant  expended  money, 
on  reclaiming  the  danga  land  which  was 
held  in  common  tenancy,  he  did  so  at  his 
own  risk  and  that  the  reclamation  would 
be  for  the  benefit  of  the  joint  property. 
On  the  other  hand  there  is  a  decision  re- 
ported as  Kallian  Banerji  v.  Modhusudun 
Banerji  (3)  where,  in  precisely  similar 
circumstances  to  the  present,  the  principle 
adopted  by  the  learned  Subordinate  Judge 
was  laid  down  by  the  Calcutta  High  Court. 
IA  euiy  case  if  the  learned  Subordinate 
Judge^  was  in  error  in  this  part  of  his  judg- 
ment it  is  merely  an  error  of  law  and  does 
not  affect  his  jurisdiction 

It  was  further  contended  that  he  had 
acted  without  jurisdiction  in  directing  a 
partition  of  the  Bagan  because  the  Bagan 
was  not  partitioned  by  the  Commissioner 
and  no  objection  was  taken  on  this  score 
before  the  Munsif.  It  seems  true  that  this 
objection, was  not  taken  before  the  Munsif; 
but  the  partition  was  to  be  a  partition  of 
the  whole  property  and,  if  by  oversight  or 
fbr  any  other  reason  one  of  the  properties 
wag  left  unpartitioned  I  think  that  it  was 
open  to  the  parties  to  draw  the  attention 
oi  the  learned  Subordinate  Judge  to  the 
onussion  and  to  get  a  direction  from  him 
in  the  matter. 

In  my  opinion  this  appeal  as  a  second 
^peal  does  not  lie  and  must  be  dismissed 
with  costs  ;  nor  can,  it-  succeed  as  an  applica- 
tion iu  revision 

z.  K.  Appeal  dismissed 

(23,8QInd  Cas  827,  (1924)  A  I  R  (A)  U4,  51  C 
ttli  51  I.  A  2£K*;  47  M  L  J  23,  26  Bom  L  R  651, 
35  M,  L,  T  169,  23  A  L  J  76,  29  C,  W  N  34,  20 
L,  W,  770,  (192ij  M  W.  N  723,  L  R.  5  A  (P  C.)  137, 
a  Pat  L,  R.  193,  6  P  L.  T.  750  (P.  C  ). 

(3)  8  0.  L,  R,  259. 


MAHADEO  PRASHAD  V.  RAM  PHAL, 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL   No.  331  OF 

November  23, 1925. 
Present  —Mr  Justice  Misra 
Lala  MAHADEO  PRASHAD  AND  OTHERS- 
PLAINTIFFS— APPELLANTS 

versus 
RAM  PHAL— DEFENDANT— -RESPONDENT. 

A  di'erse  possession—  Co-sharers—  Oust er 

la  the  case  of  co-owners  the  possession  of  one  co- 
owner  is  in  law  the  poaaeseion  ot  the  other  co-owners 
as  well,  and  it  is  not  possible  for  one  co-owner  to 
put  an  end  to  that  possession  by  any  secret  intention 
in  his  mind.  Nothing  short  of  ouster  or  something 
equivalent  to  ouster  can  bring  about  that  result  [p 
686,  col  2] 

The  fact  that  a  co-sharer  has  heea  in  exclusive 
possession  of  the  joint  house  and  has  been  making 
repaiis  to  it,  is  not  enough  to  constitute  ouster  [p  687, 
col  1.] 

A  co-shaier  has  a  right  to  repair  the  whole  of  the 
house,  and,  if  he  does  so,  his  act  cannot  be  considered 
to  be  an  act  of  such  an  hostile  character  that  it  may 
be  considered  as  equivalent  to  a  denial  on  his  part  of 
the  title  of  the  other  co-owner  or  coowners*  [ibid  ] 

Second  appeal  against  a  decree  oi  the 
Subordinate  Jud-ge,  Fyzabad,  dated  the 
30th  April  1924,  setting  aside-  that  of  the 
Munsif,  Fyzabad,  dated  the  9th  October 
1953. 

Mr.  Na^mullah,  for  the  Appellants.. 

Mr  Wasirrii  for  the  Respondent 

JUDGMENT.— Thifr  is  a  second  appeal 
arising  out  of  asuit  brought  by  the  plaintiffs- 
appellants  for  possession  by  partition 
of  a  half  share  in  a  house  situated 
in  Mohalla  Rakabganj,  Fyzabad.  The 
plaintiffs  alleged  that  8heo  G-hulam,  their 
predecessor-m-mterest,  purchased  the  half 
share  in  the  house  in  dispute  at  an  auctions- 
Bale  in  the  year  1904,  that  they  had  obtained 
possession  through  Court  and  had  been  in 
possession  of  their  half  share  since  then. 
They  now  wanted  their  share  to  be  parti- 
tioned. The  defendants  admitted  the  pur- 
chase made  by  Sheo  Qhulam  but  pleaded 
that  he  never  obtained  possession  over  the 
share  purchased  by  him  and  that  they 
had  throughout  remained  in  possession  of 
the  said  half  share  and  thus  had'  acquired 
title  to  it  by  adverse  possession.  They 
also  pleaded  that  they  had  spent  Rfc.  S75 
in  rebuilding  the  house  and  in  case  the 
plaintiffs  be  held  entitled  to  a  decree  for 
poasession.of  their  share  they  should  bemade 
liable  to  pay  half  of  this  amount. 

The  Trial  Court,  the  Munsif  of  Fyzabad, 
found  that  Sheo  Ghulam  had  obtained 
possession  oi  the  share  purchased  by  him 
through  Court  and  hdd  aleo  succeeded  ia 


686 

obtaining  actual  possession  thereof  He, 
however,  found  that  it  was  not  established 
that  the  plaintiffs  hud  remained  in  continu- 
ous possession  of  their  share  but  that  could 
not  affect  their  title  inasmuch  as  the  pos- 
session of  the  defendants  was  that  of  co- 
owners  and  as  such  could  not  be  considered 
to  be  adverse  to  the  plaintiffs.  He,  therefore, 
overruled  the  plea  of  ad  verse  possession  and 
gave  the  plaintiffs  a  decree  for  possession 
by  paitition  of  their  half  share  in  the  house. 
He,  however,  decreed  possession  subject  to 
the  payment  of  Rs.  194-0-7.}  on  account 
of  their  half  share  out  of  Rs.  388-1-3  which 
sum  he  held  as  proved  to  have  been  spent 
by  the  defendants  on  repairs  and  the  new 
construction  of  the  house  in  dispute. 

On  appeal  the  learned  Subordinate  Judge 
of  Fyzabad  came  to  a  different  conclusion. 
He  held  that  the  plaintiffs  were  never  in 
actual  possession  of  the  share  purchased 
by  their  predecessor-in-title  Sheo  Ghulam 
and  thus  the  defendants  had  obtained  title 
to  their  half  share  by  adverse  possession. 
He  consequently  allowed  the  appeal  and  dis- 
missed the  suit  of  the  plaintiffs. 

In  second  appeal  it  is  contended  before 
me  that  the  decision  of  the  learned  Sub- 
ordinate Judge  on  the  question  of  adverse 
possession  is  wrong.  It  is  contended  on 
behalf  of  the  plaintiffs  that  it  having  been 
established  that  Sheo  Ghulam  took  posses- 
sion of  the  property  through  Court  and 
that  he  had  remained  for  sometime  in 
actual  possession  over  half  the  share  pur- 
chased by  him  the  finding  as  to  adverse 
possession  could  not  be  sustained.  In  sup- 
port of  this  contention  the  learned  Counsel 
for  the  appellants  relied  on  Corea  v  Ap- 
puhamy  (1),  Ahmad  Raza  Khan  v.  Ram  Lai 
(2)  and  Nadir  Singh  v.  Anpurna  Kunwar 
(3). 

On  behalf  of  the  respondents  it  is  contend- 
ed that  under  the  circumstances  established 
in  the  case  adverse  possession  of  the  defend- 
ants over  the  half  share  purchased  by 
Sheo  Ghulam,  the  predecessor-in-interest 
of  the  plaintiffs-appellants,  had  been  estab- 
lished and  reliance  is  placed  on  a  deci- 
sion of  the  Calcutta  High  Court  in  Lofce- 
nath  Singh  v.  Dhwakeshwar  Prasad  Narayan 
Singh  (4). 

(1)  (1912)  A.  C   230,  81  L.  J    P.  C    151;  105  L.  T. 
c36. 

(2)  26  Ind.  Cas  922;  13  A.  L  J.  204   37  A  203 

(3)  56  Ind,  Cas.  759;  7  0  L  J.282,  2  U  P.  L  R  (O) 
113. 

(4)  27  Ind.  Cas.  465;  21  0.  L.  J.  253;  20  0.  W.  N. 


PRA8HAD  V.  RAM  PHAL.  [52  I.  G.  19S6} 

I  have  taken  time  to  consider  my  judg- 
ment.   After  considering  the  rulings  cited 
on  both  sides  I  have  come  lo  the  conclusion 
that  this    appeal    must  succeed  and    the 
plaintiffs  appellants    should     be    given    a 
decree  for  possession  of  the  half    share  in 
the  house  in  dispute  claimed    by  them.     It 
is  now  well  settled  by  numerous    authori- 
ties that  in  the  case  of  co  owners    the  pos- 
session of  one  co-owner  is  in  law  the  posses- 
sion of  the  other  co- owners    as  well,  and 
that  k  is  not  possible  for  one    co-owner    to 
put  an  end  to  that  possession  by  any  secret 
intention  in  his    mind.     Nothing    short   of 
ouster  or  something    equivalent   to  ouster 
can  bring  about  that  result.    It  was  urged 
on  behalf  of  the  respondents  that  circuit 
stances    in  this  case  established    adverse 
possession  and  in  this  connection   reference 
was  made  to  the  judgment  of    Mookerjee* 
J.,  in  the  Calcutta  case  quoted  above.    In 
order  to  understand  that  the  case  actually 
decides,  I  will  quote  the  following  passage 
from  the  said  judgment  pages  257*  and  258*: 
"Every  co-tenant  has  the  right  to  enter 
into  and  occupy  the  common  property  an$ 
every    part    thereof,    provided  that  in  so 
doing  he  does  not  exclude  his  fellow- ten  ants 
or  otherwise   deny  to  them   some  right   to 
which  they  are  entitled  aa  co-tenants  ;   and 
they,  on  their  part,  may  safely  assume,  until 
something  occurs  of  which  they  must  take 
notice  and  which  indicates   the  contrary^ 
that  the  possession  taken  and  held  by  him  is 
held  as  a  co-tenant,  and  is  in  law  the  posses-!: 
sion  of  all  the  co  tenants,  and  not  adverse 
to  any  of  them.    It  cannot  be  questioned, 
however,   that  one  co-tenant  may    oust   the 
others    and  set  up  an  exclusive  right  of 
ownership  in  himself  ;  and  an  open,  notori-f 
ous,  and  hostile  possession  of  this  character 
for    the  statutoiy  period  will    ripen  into 
title   as  against    the  co-tenants  who  were 
ousted.    Thus,  although,  as  a  general  rule,' 
the  possession  of  one  co-tenant  is  not  deem? 
ed  adverse  to   the     other    co-tenants  th^ 
existence  of  the  relation  of  co-tenancy  does 
not  preclude  one  co-tenant  from  establish-* 
ing  an  adverse  possession  in  fact  as  against 
the  other  co-tenants;  and  though   the  co- 
tenant  enters  in  the  first  instance  without 
claiming  adversely,  his  possession  afterwards 
may  become  adverse.    In  order  to  render 
the    possession    of  one  co-tenant    adverse 
to  the  others,  not  only  must  the  occupancy 
be  under  an  exclusive  claim  of  ownership, 
in    denial  of  the  rights  of  the  other  co-ten- 
*Pagesof21C,L,  J,— [Ed.] 


I.  0.  1926] 


ants,  but  such  occupancy  must  have  been 
made  known  to  the  other  co-tenants,  either 
by  expiess  notice  or  by  such  open  and 
notorious  acts  as  must  have  brought  home 
to  the  other  co-tenants  knowledge  of  the 
denial  of  their  rights.  The  same  pi  inciple  is 
involved  m  the  familiar  statement  that  to  en- 
able one  of  several  cotenants  to  acquire  title 
by  adverse  possesfeion  as  against  the  otheis, 
his  possession  miiHt  be  of  such  an  actual, 
open,  notorious,  exclusive,  and  hostile  cha- 
racter as  to  amount  to  an  ouster  of  the 
other  co  tenants,  that  is,  must  have  been 
such  as  to  render  him  liable  to  an  action 
of  ejectment  at  the  suit  of  the  co-tenants 

JL  have,  therefore,  to  decide  in  this  case 
as  to  whether  the  possession  of  the  defend- 
ants-respondents over  the  half    share  piu- 
chased  by  the  predecessor-  in-title  of  the 
appellants    has  been  of    such    an  open, 
notorious,  exclusive  and  hostile  character 
as   to  amount  to  an  ouster  of  the  plaintifts. 
Thus  only  facts  which  have  been  establish- 
ed in  this  case  are  that  the  defendants  have 
been    in  actual    possession  of  the    house 
that   they  have  been  alone  making  repairs 
in  it  and  that  a  short  time  before  the  in- 
stitution of  the  suit  when  certain  portions 
of  the  house  fell  down    they  built  them 
afresh     In  my  opinion  the  acts  enumerated 
above    do   not    constitute  act    of  adverse 
possession  on  the  part  of  the  defendants  of 
a  nature  and  for  a  period  so  as  to  extingu- 
ish the  rights  of  the  plaintiffs-appellants. 
If  the  defendants  merely  lemained  in  occu- 
pation   of  the  whole  house   and  went  on 
repairing  it,  that  cannot   be  considered   to 
be  an  action  on   their  part   which  may  be 
considered  as  tantamount  to  a  denial  of  the 
title  of  the  plaintiffs-appellants    A  co-sharer 
has   a  right  to  repair   the    whole    of  the 
house,    and,  if  he  does  so,  his  act  cannot 
be     considered  to  be  an  act  of  such  an 
hostile  character  that  it  may  be  considered 
as  equivalent  to  a  denial  on  his  part  of  the 
title  of  the  other  co-owner  or  co  owners.    As 
to  the  new  construction  it  is  alleged  that  it 
was  made   only  a    short  time   before  the 
institution  of  the  suit.    I  am,theiefore,  of 
opinion  that  according  to  the  rule  of  law 
laid  down  in  the    above  noted    Calcutta 
case  relied  upon   by  the   respondents  ad- 
verse possession  on    their  behalf  has  not 
been  established.  . 

The  learned  Counsel  for  the  plaintiffs- 
appellants  has  not  denied  his  cliens'  liabil- 
ity to  pay  the  amount  decreed  by  the 
Trial  Court  as  payable  by  them  to  the 


SUGGTJSBITY  SUBSAYYA  V.  IRTOULAPATI  aANGAfYA.  687 

defendants  in  respect  of  their  half  share 
in  the  money  spent  by  them  on  account  of 
repaiisand  fresh  construction. 

1  accordingly  allow  the  appeal  set  aside 
the  decree  of  the  learned  Subordinate  Judge 
and  restore  that  of  the  learned  Munsif  with 
costs  in  this  and  the  lower  Courts 

N.  H.  Appeal  allowed. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  APPELLATE  OKDEK  No.  Ill 

OF  1924. 

August  20,  1925 

Present  —Mr  Justice  Jackson 

SUGOUSETTY  SUBB A YYA— PETITIONER 

— APPELLANT 

versus 

IRUGULAPATI  OANGAYYA— COUNTBB- 
PETITIONER — RESPONDENT. 

Evidence  Act  (I  of  187  J),  s  11!+— Limitation 
Act  (IX  of  190S),  6  SO— Payment  towards  decree— 
Payment  towards  interest- -Denial  of  payment— Pre- 
siimptioji— Extension  of  limitation 

Oidmanly  one  does  not  split  up  the  principal  and  in- 
terest m  a  donee,  and,  where  a  judgment-debtor  makes 
a  payment  towards  the  decree  it  is  a  fan  presump- 
tion "  to  make  that  the  payment  was  made  towards 
both  principal  and  interest  for  purposes  of  s  20  of 
the  Limitation  Act  Each  case,  however,  must  be 
decided  on  its  ou  n  facfcb 

Mohammad  Abdullah  Khan  v  Bank  Instalment 
Company  Ltd ,  2  Jnd  Gas  379,  .51  A  495,  6  A  L  J 
611,  distinguished 

Wheie  a  judgment-debtor,  who  has  made  a  pay- 
ment towaidb  the  decree,  denies  the  fact  of  the  pay- 
ment it  may  be  presumed,  that  it  was  his  knowledge 
that  he  paid  oft  principal  and  interest  which  drove 
him  to  falsehood 

Appeal  against  an  order  of  the  Court  of 
the  Additional  Subordinate  Judge,  Bez- 
wada,  in  A  8.  No  34  of  1924,  preferred 
against  an  order  of  the  Court  of  the  Dis- 
trict Munsif,  Nuzvid  at  Bezwada,  in  0.  8. 
No.  £0  of  m6,  of  the  file  of  the  Court  of  the 
District  Munsif,  Bezwada 

Mr.  Ch  Raghava  Rao,  for  the  Appellant. 

Mr.  P.  Satyanarayana,  for  the  Respond- 
ent. 

JUDGMENT.— The  only  question  rais- 
ed in  this  appeal  is  really  one  of  fact  whe- 
ther the  payment  on  which  the  respondent 
relies  to  save  limitation  was  made  on  ac- 
count of  interest.  The  best  evidence  in 
such  a  matter  is  the  evidence  of  the  payer 
himself  and  if  he  had  gone  into  the  box 
and  explained  how  he  came  to  pay  the  Rs.  25, 
for  principal  only,  the  task  of  judging 


MAtTNG  HAN  V.  KO 


[921.  C.  191 


this  question  might  have  been  considerably, 
lightened.  Unfortunately,  he  chose  to  deny 
payment  altogether  which  the  lower  Appel- 
late Court  finds  to  be  untrue.  It  is  then 
driven  to  presumptions  and  presumes  from 
the  evidence  of  the  decree-holder's  clerk 
that  the  money  was  paid  towards  the  dec- 
ree, and  that  that  includes  principal  and 
interest.  I  think  that  is  a  fair  presump- 
tion, because  ordinarily  one  does  not  split 
up  the  principal  and  interest  in  a  decree. 
Another  presumption  was  open  to  the 
learned  Subordinate  Judge,  that  if  peti- 
tioner lied,  he  had  something  to  conceal; 
and  possibly,  it  was  his  knowledge  that  he 
paid  for  principal  and  interest  when  he 
paid  towards  the  decree  which  drove  him 
to  falsehood.  Each  case  must  be  decided 
on  its  own  facts ;  and  merely  because  a 
presumption  has  been  unfounded  in  one 
case,  as  that  which  is  discussed  in  Moham- 
mad Abdullah  Khan  v.  Bank  Instalment 
Company  Ltd.  (1),  it  does  not  follow  that 
a  presumption  may  not  be  made  in  another 
case.  In  the  Allahabad  case,  the  Judges 
say  that  the  presumption  will  not  enable 
them  to  hold  that  the  payment  was  made  for 
interest ;  not,  that  in  all  cases  it  is  invalid. 
The- appeal  is  dismissed  with  costs. 

V.  N.  V. 

N,  BL  Appeal  dismissed. 

(1)  2  Ind,  Gas,  379;  31  A,  495;  6  A  L,  J.  611, 


RANGOON  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  298  OF  1924. 

June  5,   1925. 
Present: — Mr.  Justice  Das. 

MAUNG  HAW  AND  ANOTHER — APPELLANTS 

versus 
KO   OH — DEFENDANT  No.  3 — RESPONDENT. 

Transfer  of  Property  Act  (IV  of  1882),  s  100— 
Landlord  and  tenant — Lien  for  rent  over  produce- 
Mortgage  of  crops — Mortgagee  taking  with  notice,  effect 
of. 

A  person  who  accepts  a  mortgage  over  standing 
crops  from  a  tenant  with  notice  that  the  landlord  has 
a  lien  over  the  crops  for  the  payment  of  rent,  takes 
subject  to  such  lien. 

It  is  the  usual  practice  in  Burma  for  landlords  to 
have  a  lien  over  the  paddy  reaped  by  the  tenants 
ovar  their  lands*. 

Second  appeal  against  a  decree  of  the 
District  Court,  Bassein,  in  Civil  Appeal 
No.  18  of  1924, 

Mr.  Bid  Thein,  for  the  Appellants. 

Mr.  Leang*  for  the  Respondent. 

J-U1XJMENT.— The  appellant  in  this 
case  rented  out  to  the  first  and  second 


defendants  a  piece  of  land  at  a  rental  of  260 
baskets  of  paddy,  the  condition  being  that 
their  rental  should  be  a  first  charge  on  the 
produce  of  the  land  This  agreement  was 
subsequently  embodied  in  a  document 
signed  by  the  first  and  second  defendants. 
The  first  and  second  defendants  in  con- 
sideration of  the  sum  of  Rs.  1,000  mortgaged 
by  registered  deed  the  crops  of  the  land  to 
the  third  defendant  who  is  the  respondent 
in  this  appeal. 

When  the  paddy  was  reaped  both  the 
plaintiff  and  the  third  defendant  went  to 
the  place  where  paddy  was  stored  and 
demanded  their  several  claims  from  the 
first  and  second  defendants.  The  first  and 
second  defendants  asked  the  plaintiff  to 
accept  less  than  what  was  really  due  to  him, 
and,  on  plaintiff's  refusal,  made  over  all 
the  paddy  to  the  third  defendant.  The 
plaintiff  then  filed  the  present  suit  claiming 
that  he  was  entitled  to  a  lien  over  the 
paddy  and  that  the  third  defendant  was 
liable  to  pay  him  the  value  of  260  baskets 
of  paddy  due  to  the  plaintiffs. 

The  third  defendant  admitted  that  he 
knew  that  the  land  was  rented  from  the 
plaintiff  and  also  that  he  knew  that  the 
rental  was  260  baskets  of  paddy.  Before 
the  paddy  was  delivered  to  him,  he  knew 
that  the  plaintiff  claimed  a  lien  over  the 
paddy  and  that  the  first  two  defendants 
admitted  the  lien  of  the  plaintiff. 

It  is  the  usual  practice  in  this  country 
for  landlords  to  have  a  lien  over  the  paddy 
reaped  by  the  tenants  over  their  lands,  and 
if  the  respondent  had  made  the  slightest 
enquiry,  he  would  have  discovered  that, 
in  this  case,  the  tenants  had  agreed  to 
give  the  lien  to  the  landlords.  He  admits 
that  before  he  took  away  the  paddy  he 
knew  of  the  existence  of  this  lien.  That 
being  so,  I  think  the  plaintiffs  are  entitled 
to  a  decree  against  the  third  defendant 
also. 

I  allow  the  appeal  and  set  aside  the 
decree  of  the  lower  Appellate  Court  and 
modify  the  decree  of  the  Court  of  first 
instance  by  giving  a  decree  against  the 
third  defendant  also.  The  plaintiff-  appel- 
lants will  get  their  costs  in  all  Courts. 

z.  K.  Appeal  allowed. 


I.  0. 


V    MAKANT  K.  MEflf  A. 


#89 


BOMBAY  HIGH  COURT. 

CRIMINAL  REFERENCE  No  29  OF  1925. 

July  30,  1925 
Present : — Mr.  Justice  Fawcett  and 

Mr.  Justice  Coyajee. 
EMPEROR— PROSECUTOR 

versus 
MANANT  K,  MEHT A— ACCUSED 

Criminal  Procedure  Code  (Act  V  of  1898),  ss  238, 
234,  235,  l£St  JtSO— Penal  Code  (Act  XLV  of  18t>0),  &t 
W8,lt7  7  A— Criminal  breach  of  trust --Falsification  of 
accounts — Separate  transactions — MisjoinderoJ  charges 
—Illegality-  Notice  to  enhance  sentence— Objection  as 
to  legality  of  tual,  whether  can  be  taken — Revision-- 
Re-trial,  whether  can  be  ordered 

The  language  of  sub-s  (6)  of  s  439,  Cr  P  C  ,  is 
very  wide  and  it  is  open  to  an  accused  peison  who 
has  been  called  upon  to  show  cause  against  an  en- 
hancement of  sentence  to  laise  any  point  that  might 
be  urged  against  his  conviction  either  to  a  Court  of 
Appeal  or  to  a  Re  visional  Court  It  is,  therefore,  com- 
petent to  an  accused  person  in  such  a  case  to  ui#e 
that  his  trial  was  illegal  owing  to  misjomder  of 
charges  [p  689,  col  2,  p  691,  col  1J 

Where  a  person  is  charged  with  committing  one 
act  of  criminal  breach  of  trust  and  also  with  falsify- 
ing accounts  with  a  view  to  conceal  that  particular 
defalcation,  the  two  may  be  said  to  fonn  part  of  the 
same  transaction  Where,  howevei ,  an  accused  per- 
son is  charged  with  three  separate  acts  of  breach  of 
trust  and  three  separate  acts  of 'falsification  of  accounts, 
one  in  respect  of  each  act  of  breach  of  trust,  the 
charges  cannot  be  tued  together  in  one  trial,  as 
there  are  three  separate  transactions  in  icspect  of 
each  act  of  breach  of  tiuat  coupled  with  tho  cone- 
spondmg  falsifying  of  accounts,  and  the  two  offences 
are  not  offences  of  the  same  kind  [p  690,  cols  1  <fe  2  1 

Where  the  High  Court  sets  aside  a  conviction  in 
i  evision  on  the  giound  that  the  trial  was  illegal,  it 
has  power  to  direct  a  re-trial  [p  692,  col  2  ] 

Criminal  reference  made  by  the  Addition- 
al Sessions  Judge,  Surat,  in  the  matter  of 
conviction  and  sentence  passed  by  the  City 
Magistrate,  First  Class,  Surat. 

Mr.  S  S.  Patkar,  Government  Pleader, 
for  the  Crown. 

Sir  Chimanlal  Setalvad  and  Mir  G.  AT. 
Thakor  (with  him  Mr.tf.  J.  TAafeor),  for  the 
Accused. 

JUDGMENT. 

Coyajee,  J. — The  accused,  who,  at  the 
material  time,  was  the  Manager  of  the 
Surat  Branch  of  the  Industrial  and  Ex- 
change Bank  of  India,  was  tried  in  the 
Court  of  the  First  Class  Magistrate  at  Surat 
on  a  charge  which  alleged  as  follows  .— 

"That  you,  on  or  about  the  period  Decem* 
ber  1,  1921,  to  October  31,  1922,  being  the 
Manager  of  the  Surat  Branch  of  the  ln^ 
dustrial  and  Exchange  Bank  of  India, 
wilfully  and  with  intent  to  defraud  the 
Bank,  altered  the  entries  in  certain  books 
of  accounts  of  the  Bank  and  omitted  to  have 

44 


certain  entries  made,   and  misappropriated 

tho  amounts  as  shown  below,  mz.  — 

On  December  1,  1921,     ..     Rs.  2,149-9-3 

On   March    11,    1922,        .    Rs.  1,500-0-0 

On  October  31,  1922,  Rs.  2,400-0-0 

and   thus   committed   criminal     breach    of 

trust  in   respect  to  the   said  amounts   and 

thereby      committed    offences     punishable 

under  ss.  408  and  477-A  of  the  Indian  Penal 

Code,  and  within  my  cognisance." 

The  Magistrate  convicted  him  under4 
ss  408  and  477-A  in  respect  of  the  first  two 
items  in  the  charge,  and  awarded  punish- 
ment for  each  of  the  four  offences. 

On  appeal  the  Additional  Sessions  Judge 
reversed  the  conviction  and  sentence  for  the 
offence  of  criminal  breach  of  trust  in 
respect  of  the  first  item,  but  the  rest  of  the 
appeal  was  disallowed.  In  the  opinion  of 
the  learned  Judge,  however,  the  punish- 
ment was  grossly  inadequate  ,  he  according- 
ly made  a  reference  ^  \i&  Court.  Notice 
was  then  given  tv  the  accused  to  show 
cause  why  his  sentence  should  not  be  en- 
hanced, and  it  has  now  come  before  us  for 
hearing  In  showing  cause,  Counsel  for 
the  accused  contends  that  his  client  was 
charged  and  tried  at  one  and  the  same  trial 
for  more  than  three  distinct  offences  which, 
moreover,  were  not  all  of  the  same  kind  ; 
the  trial  was,  therefore,  illegal,  as  being  m 
contravention  of  the  provisions  of  s  233, 
Cr  P  C ,  and  the  conviction  was  contrary 
to  law.  This  question  was  not  raised  at  the 
tual,  and  the  first  question  is  whether  the 
contention  is  now  competent.  In  my 
opinion  it  is.  The  contention,  if  made  good, 
vitiates  the  whole  trial. 

Section  439  (6),  Or.  P.  0  ,  says  .— 
"Notwithstanding  anything  contained  in 
this  sectfon,  any  convicted  person  to  whom 
an  opportunity  has  been  given  under  sub- 
s.  (2)  of  showing  cause  why  his  sentence 
should  not  be  enhanced  shall,  in  showing 
cause,  be  entitled  also  to  show  cause 
against  his  conviction.11 

The  language  of  the  enactment  is  wide, 
and  there  is  no  justification  for  giving  it  a 
restricted  meaning. 

The  contention,  then,  is  that  the  charge 
alleges  more  than  three  distinct  offences  ;  it 
is  not  covered  by  s.  234  of  the  Code,  inasmuch 
as  the  offences  of  criminal  breach  of  true* 
and  of  falsification  of  accounts  are  not 
oifenoes  of  the  same  kind ;  and  it  cannot 
fall  under  s,  235,  because  there  are  three 
defalcations  committed  on  different  oeca* 
sions,  and  the  false  entries  connected  with! 


690 


V.  MANANT  K.  MEHTA. 


It  SB) 


one  defalcation  cannot  be  said  to  form  part 
of  the  same  transaction  with  the  other  de- 
falcations and  falsifications     In  my  opinion 
this  objection  is  well  founded    and    must 
prevail.    In  Emperor    v.   Nathalal  (1)  the 
accused  was     charged    at  one    trial   with 
criminal  breach  of  trust  in  respect  of  seven- 
teen sums  of  money,  and  also  with  falsifying 
accounts  with  intent  to  defraud  ;  this  Court 
Bet  aside  the  conviction   and  sentence,  and 
directed    a  new  trial  on  the  ground    that 
there  was  a  misjoinder  of   charges  in  con- 
travention of  s.  234.    The  learned  Judges 
say  (page  434*):      "In  the  present  case  two 
offences    of  distinct    character    have  been 
joined  in  the  same  charge  and  the  charge 
under  s.  477- A  includes  a  number  of  distinct 
offences  in  excess  of  three  as  provided  by 
B,  284,"  In  Kasi  Viswanathan  v.  Emperor  (2) 
a  similar  view  was  expressed,  namely,  that  it 
is  illegal  to  try  a  person  on  a  charge  which 
alleges  three  distinct  acts  of  criminal  breach 
of  trust  and  three  distinct  acts  of  falsifica- 
tion   of  accounts.      The  authority    of  this 
case  was  followed  in  Raman  Behary  Das  v. 
timperor    (3)    where    the    learned    Judge 
observes   (page  726|):—  4llt  is  impossible  to 
take  a  series   of  false  entries  referring  to 
three  different  defalcations  in  the  same  trial 
although  it  might  be  possible  to  try  three 
defalcations  in  one    charge,  or   to    try   a 
whole  series    of  falsified  accounts  in  one 
charge.    The  two  could  not  be  combined  in 
the  manner  in  which  they  have  been  com- 
bined in  this  case/' 

The  learned    Government  Pleader    has 
sought  to  justify  the  trial  on    the  ground 
that  although  the  offence  of  criminal  breach 
of  trust  is  not  of    the  same    kind  as  the 
offence  of  falsification  of  accounts,    here  we 
have  a  series  of  acts  so  connected  together 
as  to  form  but  one  transaction;  that  ss.  234 
and  235  (1)  which  form  exceptions  to  the 
general  rule,  affirmed    in  s.   233,  are  not 
mutually    exclusive ;  and  that,    therefore, 
B.  235  (1)  must  be  lead  with  s.   234.    I  am 
unable  to  accept  this  contention.    It  may 
be  conceded  that  where  a  person  is  charged 
with  committing  one  act  of  criminal  breach 
of  trust  and  also  with  falsifying  accounts 
with  a  view  to  conceal  that  particular  defal- 
cation, the  two  may  be  said  to  form  part  of 
the    same  transaction.     But  the   facts  in 

(1)  4  Bom.  L  R.  433. 

(2)  30  M,  328;  17  M.  L.  J.  141,  2  M.  L.  T.  177;  5  Cr. 
L.  J.  341. 

(3)  22  Ind    Cae.  729;  41  C.  722,  15  Cr.  L.  J.  153,  18 

C.  WJ^U52, 

^"Page  of  4  bom;  L.  K,-  [Ed.]  ~  tPageof  41  C.- 


this  case  are  different.  They  t  would  form 
at  least  three  separate  transactions,  and,  as 
pointed  out  in  the  Madras  case  above  re- 
ferred to  (page.  329*)  "there  is  no  provision 
of  the  Code  which  says  that  all  offences  com- 
mitted within  one  year  in  the  course  of 
three  separate  transactions  may  be  tried  at 
one  trial."  Reliance  is,  however,  placed  on 
the  decision  of  this  Court  in  In  re  Eal 
Gangadhar  Tilak  (4).  That  case,  however, 
is  distinguishable.  For  there,  the  trial  pro- 
ceeded on  three  charges,  one  under  s,  124-A 
with  respect  to  an  article  published  by  the 
accused  on  May  12,  1908,  and  one  under  s. 
124-A  and  another  under  s.  153-A  as  to  an 
article  published  by  him  on  June  9,  1908. 
The  accused  was  convicted.  He,  thereupon, 
appealed  to  this  Court  for  leave  to  appeal 
to  the  Privy  Council  on  the  ground  among 
others,  that  (page  225|)  :— 

"The  learned  Judge  acted  illegally  in 
trying  your  petitioner  at  one  and  the  same 
trial  for  at  least  three  offences,  not  of  the 
same  kind  and  not  committed  in  the  same 
transaction,  contrary  to  the  express  provi- 
sions of  s.  233  of  the  Cr.  P.  ^C.  and^  in 
opposition  to  your  petitioner's  objection, 
thereby  vitiating  the  whole  trial  and  render- 
ing it  illegal,  null  and  void  ab  initio." 

The  learned  Judges  held  that  the  charges 
fell  within  the  scope  of  s.  235  (1).  They  then 
proceeded  to  consider  whether  s.  235  (2)  or 
s.  236  could  not  be  made  use  of  in  co-opera- 
tion with  s.  234,  and  observed  (page  238t):-— 
"We  find  it  difficult  to  believe  that  the 
Legislature  intended  that  a  joint  trial  of 
three  offences  under  s.  234  should  prevent 
the  prosecution  from  establishing  at  the 
same  trial  the  minor  or  alternative  degrees 
of  criminality  involved  in  the  acts  com- 
plained of.  For  these  reasons  we  think 
that  the  exceptions  are  not  necessarily 
exclusive;  and  that  ss.  235  (2)  and  236  may 
be  resorted  to  in  framing  additional  charges 
where  the  trial  is  of  three  offences  of  the 
same  kind  committed  within  the  year." 

It  is  clear  then  that  the  particular  ques- 
tion now  arising  before  us  did  not  arise  in 
that  case.  It  is,  however,  discussed  by 
this  Court  in  the  later  case  of  Emperor  v< 
Lalji  Bhan]i  (5).  There  the  accused  had 
committed  only  one  act  of  criminal  breach 
of  trust  and  the  accounts  alleged  to  have 
been  falsified  related  to  that  particular 

(4)  2  Ind  Cas.  277,  33  B.  221;  10  Bom.  L,  R.  973} 
9  Cr.  L.  J.  226,  4  M  L.  T.  45. 

(5)  15  Ind.  Caa.  645;  14  Bom,  L,  R.  306;  13  Cr.  L, 
J/50L 

' 


*Page  of  30  M,— 


35  B,— 


1.  0. 1926] 


EMPEROR  V.  MAN  ANT  K.  MEHTA. 


691 


act.  ^  The  learned  Judges  explained  and 
distinguished  the  decisions  in  Emperor  v 
Nathatal  (I)  and  Kasi  Viswanathan  v. 
Emperor  (2)  on  that  ground. 

The  learned  Government  Pleader  has  also 
referred  us  to  s.  222  (2)  In  this  case,  how- 
ever, the  charge  was  in  respect  of  three 
distinct  acts  of  criminal  breach  of  trust 
No  charge  was  framed  in  accordance  with 
the  provisions  of  that  section.  Moieover, 
the  section  refers  only  to  oifences  of  crimi- 
nal breach  of  trust  or  dishonest  misappro- 
priation of  money,  and  has  no  application 
to  the  charge  as  framed  in  this  case 

For  these  reasons,  I  hold  that  the  error 
has  wholly  vitiated  the  trial;  we  set  aside 
the  conviction  and  sentence  and  direct  a 
new  trial. 

Faweett,  J,— In  this  easel  agree  with 
my  learned  brother  that  the  point  as  to 
illegality  of  the  trial  in  which  the  accused 
was  convicted  can  be  raised  under  sub- 
s  (6)  of  s  439,  as  being  "cause  against  his 
conviction."  Those  are  very  wide  words 
and  there  is  nothing  in  the  sub-section  to 
limit  their  generality.  We  are  sitting  as  a 
Court  of  Revision,  and  any  point  that  the 
accused  might  urge  against  his  conviction 
either  to  a  Court  of  Appeal  or  to  a  Revisional 
Court  is,  I  think,  open  to  him. 

The  learned  Government  Pleader  submit- 
ted that  in  any  case  the  embezzlements  and 
falsifications  of  accounts  charged  against 
the  accused  were  part  of  the  same  transac- 
tion, because  the  evidence  shows  that  from 
the  very  commencement  of  his  employment 
he  had  an  intention  to  commit  such  offen- 
ces, and  there  was,  therefore,  a  continuity 
of  purpose,  linking  all  the  offences  charged 
against  him.  I  think  that  argument  is 
clearly  unsustainable.  It  was  considered 
in  a  somewhat  similar  case  by  this  Court 
in  Ramnarayan  Amarchand  v.  Emperor  (6). 
There  the  accused  were  charged  with 
preparing  false  balance-sheets  of  a  certain 
Company  for  the  years  1912  and  1913,  and 
were  tried  at  one  trial  on  both  the  charges 
and  convicted  and  sentenced.  On  appeal 
it  was  held  that  there  was  a  misjoinder  of 
charges,  for  the  preparation  of  the  balance- 
sheets  for  the  years  1912  and  1913  could  not 
be  regarded  as  forming  the  same  transaction 
within  the  meaning  of  s.  235  of  the  Cr.  P. 
0.  A  similar  argument  was  put  before  the 
Court,  and  Heaton,  J.,  on  this  point  says  as 
follows  (page  736*):— 

(6)  52  Ind  Gas  481,  21  Bom  L  R  732.  20  Cr  L  J  657. 
~  of  21  Bom,  L,  JU.—L ~~ 


"Now  here  there  were  jointly  tried  mat- 
ters relating  to  two  totally  distinct  affairs, 
one  being  the  balance-sheet  for  the  year 
1912,  the  other  the  balance-sheet  for  the 
year  1913.  It  is  said  that  both  of  them  were 
piepaied  in  pursuance  of  a  policy  of  decep- 
tion, that  the  Company  was  really  insolvent 
as  early  as  the  year  1910  and  that  the 
subsequent  balance-sheets  were  prepared 
falsely  with  the  deliberate  purpose  of 
concealing  this  practical  insolvency;  and 
it  is  said  that  because  this  was  so,  the 
preparation  of  these  two  balance-sheets 
for  successive  years  was  in  reality  but 
one  transaction.  The  word  transaction' 
used  in  the  Cr.  P.  C.  is  not  defined.  Its 
meaning  has  frequently  been  illustrated  by 
cases  which  are  in  the  books,  but  in  the 
long  run  we  have  to  deal  with  every  case 
that  arises  on  its  own  facts.  Knowing  the 
general  idea  of  the  words  'the  same  trans- 
action,' we  have  to  determine  whether  these 
words  do  or  do  not  apply  to  the  particular 
facts  of  a  particular  case.  Here  it  seems  to 
me  that  to  apply  the  words  'the  same  trans* 
action,'  to  these  two  separate  proceedings  is 
to  confuse  the  meaning  of  those  words  with 
the  idea  of  things  that  are  done  in  pursu- 
ance of  a  conspiracy.  From  the  prosecu- 
tion point  of  view  it  is  perfectly  correct  to 
say  that  both  these  balance  sheets  were  pre- 
pared m  pursuance  of  a  conspiracy.  One 
only  has  to  think  over  the  matter,  a  little 
carefully,  however,  to  see  that  this  idea  of 
a  conspiracy  covers  a  very  great  deal  that 
cannot  be  included  in  the  idea  of  'the  same 
transaction.1  If  we  were  to  take  those 
words  as  covering  a  case  of  this  kind,  it 
would  lead  us  to  treat  the  same  acts  of 
misconduct  or  fraud,  however,  often  re- 
peated, as  constituting  the  same  transac- 
tion, if  there  was  the  same  general  purpose 
underlying  the  repeated  acts.  But  some- 
thing far  more  definite  than  that  is 
required,  before  separate  proceedings  can 
be  brought  within  the  meaning  of  the 
words  'the  transaction.1  " 

I  entirely  endorse  that  reasoning.  Simi- 
larly in  a  casa  dealt  with  by  the  Madras 
High  Court,  Choragndi  Venkatadri  v. 
Emperor  (7),  it  was  heid  that, — 

"Where  a  Company  is  formed  with  the 
object  of  defrauding  the  public,  it  cannot 
be  said  that  distinct  acts  of  embezzlement 
committed  in  the  course  of  several  years 

(7)  5  Ind.  Gas.  847,  33  M.  502;  (1010)  M  W.  N.  65; 
7  M.  L,  T,  299,  20  M,  L,  J,  220,  11  Cr.  L.  J, 


V.  MAN AfcT  K,  MEHfA. 


form  part  of  the  same  transaction  by  reason 
of  such  general  object/' 

Therefore  that  contention,  in  my  opinion, 
entirely  fails. 

In  regard  to  the  ruling  of  this  Court  in 
hire  bal   Gavgadhar    Tahk   (4)     I  agree 
with  the  remarks  of  my    learned  brother. 
The  particular  case  which  the   Court  had 
to  deal  with  there  was  one  where  the  same 
offence  fell  under  two  different  sections  of 
the  Indian  Penal  Code,  and  the  exact  point 
now  before     us  was  not  then  under  con- 
sideration.   There  obviously  is  a  difference 
between    the    case    of    such     alternative 
charges,  which  do  not  increase  the  number 
of    acts     underlying     the    charges,    and 
the  present  case,  where  the  acts   are  doubl- 
ed.   The  former  case  is    analogous  to  that 
dealt    with  in  s.  236,    which   allows    any 
number  of  alternative    charges  in  respect 
of  a  single  act  or  series  of  acts  to  be  made 
at  one  trial:    c/.,    Begu   v.    Emperor  (8). 
Therefore,  I    think,  there   is  no  sufficient 
ground  for  our  taking  a  different  view  from 
that  taken  not  only  by  the  Calcutta,  Madras 
and  Allahabad  High    Courts,  but  also  by 
this  Court  in  Emperor  v.  Nathalal  (1).     No 
doubt  this  view  provides  rather  a  trap  for 
Magistrates.    In  the  case  of   alleged  em- 
bezzlement, there  is  geneially  evidence  of 
falsification    of    accounts  to  conceal   that 
embezzlement,  and  unless  the  Magistrate 
knows,  or  has  his  attention  drawn  to,  the 
rulings  of 'the  Courts  about  the  illegality  of 
joining    three    charges  of    embezzlement 
with  three  charges  of   connected  falsifica- 
tion of  accounts,  he  not  unnaturally  thinks, 
they  can  be  the  subject  of  one  trial  (which 
certainly  is  convenient)    and  is  very  likely 
to  fall  into  the  error  that  has  occurred  in 
this  case.    If  the  Magistrate  had  been  aware 
of  the  danger  and   exercised    a  little  more 
care?  he  might,  I  think,  at  any  rate,  accord*- 
ing  to  the  view  adopted  in  Raman  Behary 
Das  v.  Emperor  (3),  have  legally  framed  his 
charge  so  as  to  comprise  only  one  offence 
of  criminal  breach  of  trust  for  the  aggre- 
gate amount  alleged    to  have  been  embez- 
zled and  one   other  offence  for  the  entire 
falsification  of  the  accounts  in    regard  to 
that     embezzlement    It  is  rather  absurd 
that  we  now  have  to  hold  that  the   trial   is 
illegal  on  this  objection  which  was  never 

(8)  68  Ind.  Cas.  3;  48  M.  L.  J.  643;  2  0.  W.  N.  447; 
41  C  L.  J.  437;  27  Bom.  L.  R.  707,  3  Pat.  L.  R  95  Or  ; 
(1925)  A.  LR.  (P.O.)  130,  6  L,  226;  23  A,L,J.  636; 
(1925)  M,W,N<  418;  2&  Cr.L.J,  1059;  7 
P,  QA 


ft»  I.  0. 1926] 

urged  in  the  Trial  Court  or  in  the  Court  ^ 
Appeal, and  where  there  is  clearly  no  ground 
for  saying  that  the  accused  has  been,  in 
any  way  prejudiced*  However  we  have  no 
option,  and  I  agree  with  my  learned  brother 
that  the  conviction  of  the  accused  not 
only  in  the  Magistrate's  Court,  but  also  as 
modified  by  the  Sessions  Judge,  must  be 
set  aside  Fine,  if  paid,  to  be  refunded. 

We  have  heard  the  accused's  Counsel  on 
the  further  steps  to  be  taken.  He  dfaws 
our  attention  to  the  remarks  of  Batty,  J.,  in 
Emperor  v.  Jethalal  (9).  We  are  of  opinion, 
however,  that  we  clearly  have  power  to 
direct  a  re-trial  under  s.  439,  read  with 
s.  423,  Cr.  P.  C.,  and  that,  as  the-  accused 
has  chosen  to  raise  this  point  of  illegality, 
there  are  no  sufficient  grounds  for  holding 
that  he  should  not  sufler  the  ordinary  con- 
sequences. We  think  that  this  is  a  case 
where  the  Court  should  direct  a  re-trial, 
and  we  leave  it  to  the  prosecution  to  say 
exactly  on  what  particular  charge  or 
charges  the  re-trial  should  take  place.  But 
regard  must,  of  course,  be  had  to  the  neces- 
sity of  having  one  trial  either  in  regard  to 
not  more  than  three  alleged  offences  of 
criminal  breach  of  trust  or  one  trial  as  to 
one  alleged  offence  of  criminal  breach  of 
trust  and  the  alleged  falsification  of  ac- 
counts in  regard  to  that  breach  of  trust. 

We  wish  to  add  that  we  think  the  atten- 
tion of  Government  should  be  drawn  to 
this  case,  with  a  view  to  its  being  consider- 
ed whether  the  Government  of  India 
should  not  be  moved  to  amend  the  Code,  in 
the  form  of  an  illustration  to  s.  234  or 
otherwise  so  as  to  obviate  difficulties  of  the 
kind. that  have  arisen  in  the  present  case. 
We  think  that  obviously  in  this  case  (and 
probably  in  all  such  cases)  there  is  really 
no  prejudice  to  an  accused,  if  he  is  allowed 
to  be  tiied  in  one  trial  for  three  separate 
offences  of  criminal  breach  of  trust  com- 
mitted within  one  year  and  also  tKree 
separate  but  connected  offences  of  falsifica^ 
tion  of  accounts  in  regard' to  those  breaches 
of  trust.  Regrettable  delay  and  expendi- 
ture are  entailed  by  the  present  law  as 
interpreted  by  the  Courts,  which  frequently 
necessitate  the  upsetting  of  trials  and  in 
consequence  either  the  re- trial  of  the  accus- 
ed or  his  getting  off  scot-free. 

A  copy  of  our  judgments  should  be  sent 
to  the  Local  Government  accordingly. 

z  K.  Re-trial  ordered* 

(9)  20  B,  449  at  p.  467;  7  Bom,  L.  R.  527;  2  Cr,  Jj, 
J,  460. 


0.1926] 


BUPBROR  V.  MATHRO. 


BIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REFERENCE  No.  196  OP  1925. 

September  21,  1925. 
Present :— Mr.  Kennedy,  J.  0.,  and 

Mr.  Tyabji,  A  J.  C. 
EMPEKOR— PROSECUTOR 

versus 
MATHRO -ACCUSED. 

Criminal  Procedure  Code  (Act  V  of  1898),  s.  562, 
object  of — Discretion,  exercise  of,  principles  relating 
to. 

The  sole  intention  of  s  562  of  the  Or  P  C  is  that 
an  accused  person  who  18  convicted  of  a  onme  should 
be  given  a  chance  of  reformation  which  he  would  lose 
by  being  incarcerated  in  prison,  The  powers  con- 
ferred by  this  section  should  not  be  used  for  the 
purpose  of  showing  favour  to  any  particular  class  of 
persons  and  in  the  exercise  of  those  powers  a  Magis- 
trate should  see  that  the  crime  that  th?  accused 
person  has  committed  does  not  indicate  that  1m  is 
rather  a  fortunate  habitual  than  a  true  lust  offender 

Reference  made  by  the  District  Judge, 
Sukkur,  dated  the  24th  August  1925. 

Mr.  C.  M.  Lobo,  Acting  Public  Prosecutor, 
for  the  Crown. 

Mr.  Fartabrai  D.  Punwani,  for  the 
Accused. 

JUDGMENT. — la  this  case  the  accus- 
ed Mathro  was  convicted  by  the  City 
Magistrate,  Sukkur,  of  receiving  stolen  pro- 
perty and  he  was  directed  to  enter  into  a 
bond  under  s.  562,  Cr.  P.  C.  The  District 
Magistrate  thought  this  punishment  in- 
sufficient and  has  referred  the  case  here. 

We  are  reluctant  to  interfere  with  the 
discretion  of  the  Trial  Magistrate  under 
s.  ,562.  But  this  is  a  case  in  which  we 
should  have  interfered  had  it  not  been 
for  the  fact  that  owing  to  the  efforts  of  the 
.accused  a  great  part  of  the  stolen  property 
has  been  recoverd. 

It  is  necessary,  however,  to  point  out  to 
Magistrates  who  are  given  the  powers  of 
8.  562,  that  it  i*  not  conferred  upon  them 
for  ,the  purpose  of  showing  favour  to  any 
particular  class  of  persona.  The  sole  in- 
dention of  the  section  is  that  the  accused 
person  now  a  convict  should  ba  given  a 
.chance  of  reformation  which  he  would 
lose  being  incarcerated  in  prison.  The 
.exercise  of  this  discretion  does  need  a 
considerable  sense  of  responsibility  in  the 
Magistrate.  Should  he  make  a  bad  use  of 
this  discretion  far  from  reforming  an 
offender  he  will  be  a  cause  of  corruption  of 
maay.  Punishment  is  not  awarded  to  a 
criminal  only  for  vindictive  purposes.  It 
is  awarded  to  the  criminal  that  the  fate 


693 

of '  the  convict  punished  may  be  deterrent 
to  others.  If  the  Magistrate  by  a  misuse 
of  s.  562  causes  to  spring  up  in  the  minds 
of  young  people  an  impression  that  they  can 
with  impunity  commit  serious  offences  be- 
cause they  will  get  off  with  no  punishment 
then  it  is  obvious  that  this  misuse  of  bene- 
ficial power  is  a  means  on  the-contrary  of  in- 
creasing crime.  It  may  well  be  that  many 
a  young  man  who  would  have  lived  a  vir- 
tuous life  had  he  been  certain  that  his  first 
offence  if  serioua  would  meet  with  due 
punishment  may  be  led  by  the  exception 
that  he  will  even  if  detected  escape  with 
no  punishment  into  a  criminal  course  of 
life.  He  has  already  the  chance  that  his 
first  efforts  may  .  be  undetected.  It  is, 
therefore,  at  least  necessary  in  dealing 
with  a  so-called  ufirst  offender'1  to  see  the,t 
the  crime  he  has  committed  does  not  indicate 
that  he  is  rather  a  fortunate  habitual  than 
a  true  first  offender.  Therefore  Magistrates 
in  applying  s.  562  should  be  very  careful  to 
consider  the  wording  of  the  section  and 
should  riot  allow  themselves  to  be  misled 
into  the  use  of  this  section  by  misplaced 
leniency  and  sympathy. 

These  remarks  are  general.  We  do  not 
say  that  these  considerations  were  not 
present  to  the  mind  of  the  Magistrate 
in  this  particular  case.  Indeed  had  it 
been  the  case  that  there  had  been  this 
misuse  of  powers  it  certainly  would  have 
been  our  duty  to  rescind  the  order  of  the 
Magistrate  and  thereon  to  inflict  punish- 
ment upon  the  accused.  Certainly  the 
accused  in  many  ways  does  not  seem  to  be 
a  person  worthy  of  much  sympathy.  It  is, 
however,  probable  that  the  restoration  of 
the  property  was  due  to  a  belief  that  the 
section  would  be  applied.  It  is  hoped  that 
the  present  proceedings  will  be  a  lesson  to 
him  and  he  will  hence  forward  tread  the  path 
of  virtue  and  not  of  crime.  On  the  ?i whole, 
therefore,  we  refuse  to  interfere. 


z.  K. 


Answer ^accordingly.  3 


694 


BENT  RAM  Vt  EMPEROR. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  594  OF  1925. 

November  6,  1925. 

Present :— Mr.  Justice  Sulaiman. 

BENI  RAM— ACCUSED— -APPLICANT 

versus 

EMPEROR  THROUGH  HIRA  LAL— 
OPPOSITE  PARTY. 

Penal  Code  (Act  XLV  of  I860),  s,  500 -Defamation 
~— Challenged  statement—  Precedents  —  Subordinate 
Courts,  duty  of. 

A  person  who  maliciously  makes  a  defamatory  state- 
ment in  respect  of  another,  in  the  presence  of  several 
persons,  is  guilty  o£  defamation,  notwithstanding  that 
he  makes  the  statement  on  being  challenged  to  do  so 
by  the  person  defamed,  fp  695,  col  1 1 

A  Subordinate  Com  t  is  bound  by  the  ruling  of  a 
superior  Court,  however  unsound  it  may  appear  to  it 
unless  it  is  expressly  contrary  to  any  statutory  pro- 
vision of  law  which  was  not  brought  to  the  notice  of 
the  superior  Court,  or  unless  it  has  been  overruled. 
[p  694,  col.  2.] 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Agra,  dated  the  17th  of 
July  1925. 

Sir  C.  Ross  Alston,  for  the  Applicant. 

Mr.  Nehal  Chand,  for  the  Opposite  Party. 

JUDGMENT.— This  is  an  application 
in  revision  from  a  conviction  of  the  accus- 
ed under  s.  500  of  the  Indian  Penal  Code 
and  a  sentence  of  fine.  The  facts  are  not 
now  much  disputed.  The  complainant 
has  a  nephew  whose  daughter  is  of  mar- 
riageable age.  The  accused  wanted  his 
son  to  get  married  to  this  girl  but  the 
complainant  refused  to  comply  with  his 
request.  The  Courts  below  have  found 
that  this  refusal  was  the  cause  of  a  mali- 
cious feeling  in  the  mind  of  the  accused. 
That  finding  has  to  be  accepted.  The  accus- 
ed arranged  the  betrothal  of  the  girl  with 
a  relation  of  one  Babu  Lai  and  the  marriage 
was  about  to  take  place.  The  complainant 
heard  from  various  persons  that  the  accus- 
ed had  been  defaming  him  and  telling 
people  that  he  was  keeping  a  woman  Brah- 
min by  caste  as  his  mistress  and  was  a 
bad  character  and  that  if  the  marriage  of 
his  nephew's  daughter  were  to  take  place 
the  members  of  his  oaste  would  not  join. 
The  complainant  accordingly  sent  for  the 
accused  on  the  16th  of  November  1924  in 
the  presence  of  several  persons  who  were 
sitting  there  and  challenged  him.  The 
accused,  in  the  presence  of  everyone,  made 
the  following  statement  :  "Hira  Lai  is  a 
bad  character  and  keeps  a  woman  as  his 
mistress  and  if  he  will  join  in  the  marriage 
of  the  girl  of  his  nephew  the  biradari 
not  join,"  Oa  this  the  complaint  was 


[921.0.1926] 

filed.  The  accused  originally  denied  hav- 
ing made  any  such  statement  and  the  Trying 
Magistrate  not  only  admitted  evidence  as 
to  this  statement  having  been  made  but 
also  allowed  evidence  to  come  on  the  record 
as  regards  some  previous  defamatory  state- 
ments made  by  the  accused,  though  he 
was  charged  only  with  the  statement  made 
by  him  on  the  16th  of  November  1924. 
The  accused  further  led  evidence  to  sub- 
stantiate the  defamatory  statement  that  the 
complainant  was  keeping  a  Brahmin  woman. 
The  Magistrate,  however,  found  that 
though  a  woman  was  employed  by  the  com- 
plainant she  was  employed  as  a  maid  serv- 
ant and  that  it  was  not  proved  that  she 
was  a  kept  woman  of  the  complainant. 
He  pointed  out  that  the  witnesses  for  the 
defence  were  making  statements  on  pre- 
sumptions and  that  there  was  no  direct 
evidence  to  prove  the  truth  of  the  accused's 
statement 

In  appeal  the  position  taken  up  by  the 
accused  that  he  had  not  made  the  defama- 
tory statement  was  abandoned,  and  the 
learned  Vakil  who  appeared  for  him  press- 
ed only  the  plea  of  justification  and  privi- 
leged occasion.  With  regard  to  this  the 
learned  Judge  first  remarked  :  "I  am  doubt- 
ful whether  such  a  change  can  be  sustained 
as  a  matter  of  lawr  in  spite  of  the  observa- 
tion of  a  Single  Judge  of  the  High  Court  in 
Umed  Singh  v.  Emperor  (I)  in  which  he  did 
not  purport  to  lay  down  any  principle  of 
law.11  With  regard  to  this  passage  in  the 
judgment  I  must  remark  that  a  Subordinate 
Court  is  bound  by  the  ruling  of  a  superior 
Court,  however  unsound  it  may  appear  to 
it  unless  it  is  expressly  contrary  to  any 
statutory  provision  of  law  which  was  not 
brought  to  the  notice  of  the  superior  Court, 
or  unless  it  has  been  overruled.  It  may, 
however,  be  pointed  out  that  the  plea  of 
justification  *urged  by  the  accused  was  not 
altogether  a  new  plea  inasmuch  as  evidence 
had  been  led  by  him  at  the  trial  to  sub- 
stantiate the  statement  allowed  to  have  been 
made  by  him,  but  it  may  be  that  the 
learned  Judge  had  in  his  mind  the  plea 
of  a  privileged  occasion. 

I  must  accept  the  finding  of  the  Appellate 
Court  that  the  accused  had  a  malice  against 
the  complainant  and  that  he  made  the 
statement  which  he  has  not  been  able  to 
substantiate.  The  accused  cannot  be  pro- 
tected merely  because  he  may  imagine  that 

(1)  77Ind    Ois  421:;   22  A,  L  J    79,    25  Or.    L.  J, 
472,  (1924)  A,  I,  R,  (A.)  694;  L.  R.  5  A.  55  Or, 


|&2  i.  0, 1926J 

he  had  some  ground  for  believing   that   his 
statement  was  justified 

The  learned  Counsel  for  the  applicant  has 
argued  that  inasmuch  as  the  accused's 
statement  was  made  in  answer  to  a  question 
put  to  him  by  the  complainant  he  cannot 
be  held  guilty  This  contention  cannot  be 
accepted.  If  the  accused  made  the  state- 
ment in  the  presence  of  a  number  of  persons 
even  if  he  had  been  challenged  by  the 
complainant  he  made  that  statement  at 
his  peril. 

Lastly  it  has  been  contended  that  the 
defence  evidence  which  has  not  been  reject- 
ed by  the  Courts  below  suggests  that  the 
statement  might  have  been  justified.  I 
am,  however,  bound  by  the  finding  of  the 
Appellate  Court  that  the  truth  of  the  state- 
ment has  not  been  substantiated.  I  accord- 
ingly dismiss  this  application. 

N.  H.  Application  dismissed. 


In  re  KANNAMMAL. 


695 


MADRAS  HIGH  COURT. 

REFERRED  TRIAL  No    94  OP  1924 
CRIMINAL  APPEAL  No  64L  OP  1924. 

January  14,  1925 

Present :— Sir  Victor  Murray  Coutts 
Trotter,  KT  ,  Chief  Justice,  and 

Mr.  Justice  Madhavan  Nair 
In  re  KANNAMMAL  alias  MAUN- 

AMMAL— PRISONER 

Criminal  Procedure  Code  (Act  V  of  1808),  <?  31$— 
Examination  of  accused,  object  of — Pi  act  ice— Warning 
to  accused,  desirability  of 

The  object  of  s  342  (1),  Or  P  0 ,  is  to  give  an 
opportunity  to  the  accused,  if  he  so  desires,  to  tender 
any  explanation  he  likes  of  his  part  in  the  case  that 
is  presented  against  him  It  is  extremely  desirable 
that  Magistrates  should  follow  the  practice  of  English 
Courts  of  warning  an  accused  person  when  they 
invite  his  explanation  under  s  342  of  the  Code  that 
he  is  not  obliged  to  say  anything  unless  he  desires  to 
do  so  [p  696,  col  2  ] 

Trial  referred  by  the  Court  of  Session 
of  the  Ohingleput  Division  for  confirmation 
of  the  sentence  of  death  passed  upon  the 
said  prisoner  in  Case  No.  23  of  the  Calen- 
dar for  1924. 

CRIMINAL  APPEAL  No.  641  OF  1924. 
Appeal  by  the  prisoner  against  the  said 
sentence. 

Mr.  Sambasiva  Rao,  for  the  Defence. 
The  Public  Prosecutor,  for  the  Crown. 
JUDGMENT,— [The  accused    was   a 
widow  some  29  years  of  age  who  was  un- 
dergoing a  course  of  training  to  fit  her  to 
be  a  teacher  i»  the  Government  Training 


School  at  Conjeevaram.    She  decoyed  one 
of  the  pupils  of  the  school  about  9  or  10 
years  of  age,  took  her  to  a  place  10  miles, 
had  her  ornaments  taken  off  and  afterwards 
sold  them  to  two  goldsmiths  and  received 
the  sale-proceeds     The  next    morning  the 
child's  body  was  found  floating  in    water 
some  4  miles  from  the  place  and  was  very 
much  decomposed     It  was  clear  the  child 
died  of  asphyxia  and  the  balance  of  pro- 
bability was  that  the  child  was  dead  before 
the  body  was  put  into  the  tank     The  ac- 
cuaed  while  she  admitted  that  she  was  a 
party  to  removing  the    ornaments  denied 
the  murder  and    stated  that  the  removal 
was  at  the  instance  of  a  person  to  whom 
the  child's  father  owed  money.     On  a  con- 
sideration of  the  evidence,  the  Court  came 
to   the  conclusion  that  the  accused  was  re- 
sponsible  for  the  murder  of  the   child  to 
hush  up    the  robbery  she   committed  by 
taking    the    ornaments     The  sentence   of 
death  was  accordingly  confirmed  ] 

We  should  like  to  add  a  word  on  one 
matter  which  arose  during  the  trial 

By  s.  342  (1)  of  the  Cr  P  C.  the  Com- 
mitting Magistrate  of  the  Court  at  the  trial 
is  entitled  to  put  questions  to  the  accused. 
Chief  Justice  Sir  John  Wallis  and  one  of  us 
have  held  in  a  decision  which,  so  far  as 
we  know,  is  unreversed,  In  re  Abibulla 
Rowthan  (1)  that  the  object  of  that  section 
is  to  give  opportunity  to  the  accused  if 
he  so  desires  to  tender  any  explanation 
he  likes  of  his  part  in  the  case  that  is 
presented  against  him.  Sub-section  (2)  of 
that  section  runs  as  follows  . — 

"The  accused  shall  not  render  himself 
liable  to  punishment  by  refusing  to  answer 
such  questions,  or  bv  giving  false  answers 
to  them  ;  but  the  Court  and  the  Jury  (if 
any)  may  draw  such  inference  from  such 
refusal  or  answers  as  it  thinks  just  " 

In  that  state  of  things  a  Full  Bench  of 
this  Court  has  held  in  In  re  Varisai  Row- 
ther  (2)  in  that  particular  case  it  was  in 
the  interests  of  the  accused  although  we 
cannot  think  otherwise  than  that  it  will 
more  often  be  greatly  to  his  detriment, 
that  the  direction  that  the  Judge  shall  ask 
the  accused  what  he  desires  to  say  is  man- 
datory and  not  discretionary 
There  is  no  provision  in  the  Code  for  the 

(ttSOInd  Gas  447,  39  M  770,  (1915)  M,  W  N.413,2 
L  W  939;  16  Cr  L  J  623 

(2)  73  Ind  Gas  103,46  M  419,  44  M  L,  J  507,  17  L. 
W  722,  32  M  L  T  385,  (1923)  M.  W  N,  477,  (1923)  Af 
I.  R,(M.)609,24Cr.L.  J.547, 


In  re  KANNAMMAL. 


[92  I.  0, 192*1 


apcused  being  warned  cxf  the  consequence 
of  the  statement  he  makes.  The  main  con- 
sequence, of  muise,  would  he  that  the  state- 
ment he  jinakes  must  be  given  in  evidence 
against  him. 

We  contrast  with  that  the  provision  of 
11  &  12  Victoria,  Oh.  42,  s.  18  which 
runs  as  follows:-— 

"After  the  examination  of  all  the  witnesses 
on  the  part  of  the  prosecution  ef  a  person 
brought  before  any  Justice  or  Justices  of 
the  Peace,    charged    with    any  indictable 
ojfance,    shall   have  been    completed,    the 
Justice  of  the  Peace,  or  one  of  the  Justices, 
by  or  before  whom  such  examination  shall 
have  been  so  completed  as  aforesaid,  shall, 
without  requiring  the  attendance  of  the  wit- 
Besses  read  or  cause  to  be  lead  to  the  accused 
the  depositions  taken  against  him,  and  shall 
say  to  him   these    words,  or  words  to  the 
like  effect:    'Having  heard  the  evidence,  do 
you  wish  to  say  anything  in  answer  to  the 
charge  ?    You  are  not  obliged   to  say  any- 
thing unless  you  desire  to  do  eo,  but  what- 
ever you  say  will  be  taken  down  in  writing, 
and  may  be  given  in  evidence  against  you 
upon  your  trial,1  and  whatever  the  prisoner 
shall  then  say  in  answer  thereto  shall  be 
taken  dowtn  in  writing,  and  read  over  to 
him,  and  shall  be  signed  by  the  said  Jus- 
tice ,or  Justices,  and  kept  with  the  depo- 
sitions of  the  witnesses,  and  shall  be  trans- 
mitted with  them  as  hereinafter  mentioned; 
and  afterwards  upon  the  trial  of  the  said 
accused  person,  the  same  may,  if  necessary, 
'be  given  in  evidence  against  him,  without 
further  proof  thereof,  unless  it    shall  be 
Droved  that  the  Justice  or  Justices,.. before 
,such  accused  person  shall  make  any  state- 
ment, shall  state    to  him    and  give    him 
cleanly  to  mwjerstand,  that  he  has  nothing 
to  hope  from  any  promise  of  favour,  a»nd 
nothing  to  fear  from   any    threat  which 
may  hav^  been  holden  out  to  induce  him 
tq  aixatke  any  admission  or  confession  o»f 
his  jguilt,  but  tbat  whatever  Jie  ehall  then 
say  *nay  ,be  given  in  evidence  .against  him 
upon  Jus  trisJ,  jiot  withstand  ing  such  pro- 
mise or  threat/1    The  first  thing  we  desire 
to  observe  ia  that  ,the  English   Act  aays 
that  .the  statement  made  by  the  prisoner 
in  such  circumstances   may  be  given  in 
.eyjidejupe    against  him.    It  is  within  the 
experience  of  all  Barristers  who  have  prac- 
tised in  the  ^English  -C^cainal  ^Courts  that 
the  prosecution  will  always  put  in  the  Btate- 
,  inent  of  a  man  as  part  of  their  case  when 
it  helps  him  or  amounts  to  u  denial  of  the 


charge.  But  there  are  cases  in  which  ,aa 
accused  person  makes  a  iooJiah  incrimina- 
tory statement,  not  understanding  ,the  po- 
sition heisip,  where  prosecuting  -Counsel, 
with  that  sense  of  fair  play  which,  we  may 
say,  invariably  characterises  them,  they 
think  it  is  in  the  interests  of  the  man  him- 
self not  to  put  in  the  statement.  They 
always  point  out  the  statement  to  the  /pre- 
siding Judge  and  he  understands  why  it 
is  the  prosecuting  Counsel  does  not  think 
it  fair  to  let  the  statement  of  the  prisoner 
go  before  the  Jury.  I!  the  Judge  thinks 
it  ought  to  go  in,  he  aays  so, 

It  seems  to  us  that  it  would  be  a  salutory 
amendment  of  the  Indian  Law  if  it  were 
not  compulsory  to  put  in  such  a  statement. 
If  there  were  any  danger  of  prosecutors 
unfairly  keeping  back  a  statement  that 
helped  the  accused,  the  Judge  is  there  to 
insist  on  its  being  put  in.  Further, 
\ve  think  it  is  extremely  desirable  ^that 
some  such  form  of  caution  as  is  prescribed 
by  11  &  It  Victoria  should  be  intro- 
duced into  the  Cr.  P.  C.  The  form  in 
which  this  woman  was  invited  to  make  a 
statement  by  the  Committing  Magistrate 
in  this  case  was  as  follows  : — 

"You  have  heard  all  the  statements  of 
the  prosecution  witnesses  ;  you  have  heard 
read  all  the  records  filed  in  Court  on  the 
side  of  the  prosecution.  What  explanation 
do  you  offer  for  it." 

That  seems  to  us  a  most  undesirable 
method  of  inviting  the  accused  person  to 
make  a  statement.  He  is  not  warned  that 
it  will  be  usable  in  evidence  against  him; 
he  is  not  warned  that,  if  he  does  j&ot  wish, 
he  need  not  offer  any  explanation  whatever. 
We  think  it  is  extremely  desirable  that 
Magistrates  should  follow  the  praptice  of 
warning  accused  persons  when  they  incite 
their  explanation  under  s.  342  of  the  Code 
that  they  are  not  obliged  to  say  anything 
unless  they  desire  to.  The  object  of  the 
>eection  should  be  to  give  them  an  oppor- 
tunity if  they  BO  desire,  to  explain  their 
conduct  and  further  warn  them  that  any- 
thing they  say  will  be  put  in  evidence 
against  them  at  their  trial. 

The  Local  Government  will  necessarily 
have  this  judgment  before  -theip  wjben'the 
question  of  .confirmation  comes  upland  they 
^nay  possibly  consider  it  advisable  to  ap- 
proach the  Government  of  ,In#ia  to  .amend 
the  law  >in  this  respect  and  bring  it  into 
.conformity  witjh  the  very  careful  provisions 


[92^0.1926-] 


BENGAL  NAGPUR  RAILWAY  CO.  V.  MAKBOL. 


697 


of  the  Indictable  Offences  Act  intended  to 
safeguard  the  liberty  of  the  subject 
,  v.  N.  v.  Appeal  dismissed. 

Z.   K, 


ALLAHABAD  HIGH  COURT. 

OjtiMiNAL  REFERENCE  No.  608  OF  1925. 

November  30,  1^25. 
Present  -—Mr  Justice  Sulaiman 

BABU  AND  ANOTHER — APPLICANTS 

icr&us 
EMPEROR— OPPOSITE  PARTY 

Cattle  Trespass  Act  (I  of  187 1],  s  21+-  Cattle  pound 
— Illegal  seizure  of  cattle-  Rescue— Offence 

Before  a  conviction  under  s  24  of  the  Cattle 
Trespass  Act  can  be  sustained,  it  is  necessary  to 
prove  that  the  cattle  which  haa  been  rescued  for  the 
cattle  pound  was  liable  to  be  seized  under  the  Act 

Criminal  Reference  made  by  the  Sessions 
Judge,  Muttra,  dated  the  Lyth  September 
1925. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT.— This  is  a  Reference  by 
the  Sessions  Judge  of  Muttra  recommending 
that  the  conviction  of  the  accused  under 
s.  24  of  the  Cattle  Trespass  Act  (I  of 
1871)  should  be  set  aside.  A  report  was 
made  by  the  pound-keeper  that  the  accused 
had  removed  a  mare  from  the  cattle  pound 
10  minutes  after  it  had  been  put  into  it. 
The  pound- keeper  did  not  make  any  entry 
in  his  register  as  regards  this  mare  al- 
though before  he  put  it  into  the  pound  he 
ought  to  have  made  such  an  entry.  The 
accused  was  tried  summarily  and  the  evi- 
dence does  not  disclose  on  whose  land  it 
had  trespassed  and  who  had  brought  the 
mare  to  the  pound.  On  the  other  hand  the 
accused's  statement  was  that  the  two  accus- 
ed themselves  had  brought  this  mare  along 
with  a  horse  because  otherwise  they  would 
not  have  found  it  possible  to  bring  the 
horse  to  the  pound  The  learned  Magis- 
trate in  a  summary  trial  has  convicted  the 
.accused  on  a  finding  that  they  removed  the 
mare  out  of  the  cattle  pound  without  a 
finding  that  it  had  been  properly  seized 
Before  a  conviction  under  0.  24  can  -be  sus- 
tained it  is  necessary  to  prove  that  the 
cattle  which  has  been  rescued  was  liable 
to  be  seized  under  this  Act.  The  circum- 
stances of  the  cjase  are  very  curious  and  in 
Jibe  absence  of  any  statement  by  the  pound- 
Deeper  or  any  reference  to  it  in  the  judg- 


ment that  this  mare  had  been  rightly  seized 
under  the  Act  the  conviction  cannot  be  up- 
held. If  the  accused  themselves  had  brought 
their  own  mare  to  the  cattle  pound  and 
after  the  horse  had  gone  inside  they  took 
the  mare  out  no  offence  was  committed. 
I  accordingly  accept  the  Reference  and  set- 
ting aside  the  convictions  and  sentences 
passed  on  the  accused  acquit  them  of  the 
charge  and  direct  that  the  fines,  if  paid,  be 
refunded. 

H.  H.  Conviction  set  aside. 


PATNAHIGH   COURT. 

CRIMINAL  REVISION  No  327  OF  1925 

August  13,  1925 

Present-— Mr.  Justice  Macpherson. 

THE  BENGAL  NAGPUR  RAILWAY 

COMPANY,  LTD  —PETITIONER 

versus 
Shaikh  MAKBUL— OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  ss  209, 
111,  lt9X,  195,  539— Railways  Act  (IX  of  1890),  s  Itf 
(2}  ^Criminal  trial-Public  Prosecutor,  right  of  pre- 
cedence of  —Pleader  authorised  by  Agent  of  Railway  to 
conduct  prosecution,  position  of-  Case  triable  by  Court 
of  Session  and  Magistrate-  Commitment,  when  justifi- 
ed—Affidavit sworn  before  Presidency  Magistrate, 
Calcutta^  whether  admissible  in  Patna  llnjh  Court 

Section  115  (2)  of  the  Railways  Act  only  entitles  a 
person  authorized  by  the  Agent  of  a  Railway  to  con- 
duct prosecution  on  behalf  of  the  Railway  Administra- 
tion, to  do  so  without  the  permission  of  the  Magistrate, 
which  would,  except  for  the  provision,  be  required 
under  s  405  of  the  Ci  P  C  Pnma  facie,  neither 
s  145  (J)  of  the  Railways  Act  not  s  495  of  the  Or  P 
C  affectb  s  493  of  the  latter  enactment  which  deals 
with  the  light  of  appearance  and  precedence  of  the 
Public  Prosecutor  befoie  any  Court  m  which  any 
case  of  which  he  has  chaige  is  under  trial  [p  700, 
col  1] 

Where  the  Public  Prosecutor  has  charge  of  a  pro- 
secution, a  Pleader  instructed  by  a  private  person, 
including  the  Agent  of  a  Railway  Administration, 
must  act  under  the  directions  of  the  Public  Prosecutor 
[ibtd.] 

Section  145  (2)  of  the  Railways  Act  contemplates 
mainly,  if  not  exclusively,  prosecutions  for  offences 
under  that  enactment,  that  is  to  say,  private  prosecu- 
tions undertaken  by  the  Railway  Administration  in 
which  the  Public  Prosecutor  does  not  appear  as  di&- 
tinguished  fiom  public  prosecutions  undertaken  or 
taken  over  by  the  State  and  in  particular  prosecu- 
tions under  the  Penal  Code  [ibid  ] 

Where  a  Magistrate  is  inquiring  into  a  case  which 
is  triable  both  by  the  Court  of  Session  and  by  himself, 
he  has  a  discretion  -to  commit  the  case  to  the  Court 
of  Session  or  to  try  it  himself  [p  701,  col  1  ] 

If  the  maximum  sentence  provided  for  the  offence 
is  withm  the  powers  of  the  Magistrate,  a  commitment 
would  only  be  justifiable  on  very  special  grounds  [ibid  ] 


693  BENGAL  NAOPOB  RAILWAY  CO.  V,  MAKBUL.  [52  I.  0.  1928] 

Affidavits  sworn  before  a  Presidency  Magistrate  of     Qr.   P.O.     Eventually    the    Police    sent  Up 

the  accused  Sheikh  Makbul,  the  driver  of 


Calcutta  are  not  admissible  m  the  Tatna  High  Court, 
[p.  702,  col.  1  ] 

Messrs.  C.  C.  Das  and  S.  N.  Chatter jit 
for  the  Petitioner, 

The  Government  Advocate,  for  the 
Crown. 

Messrs.  Ali  Imam  and  G.  P.  Das,  for  the 
Opposite  Party. 

JUDGMENT.— This  Rule  was  issued 
on  an  application  in  revision  by  the  Bengal 
Nagpur  Railway  Company,  Limited,  that 
the  Court  should  direct  that  the  representa- 
tive of  the  applicant  authorised  by  the 
Agent  of  the  Railway  under  s.  145  (2)  of  the 
Indian  Railways  Act,  1890,  has  the  right 
to  conduct  the  prosecution  in  the  case 
oE  Crown  v  Sheikh  Makhul  under  s.  304-A 
of  the  Indian  Penal  Code  which  is  pend- 
ing in  the  Court  of  the  Deputy  Magistrate 
of  Balasore  and  further  should  direct  that 
the  case  be  committed  to  the  Sessions.  At 
the  hearing  a  further  prayer  has  been 
made  that  if  the  case  be  not  committed  to 
the  Sessions  it  be  transferred  to  another 
district  on  the  ground  that  the  Magistrate 
is  biassed  against  the  applicant.  All  the 
prayers  are  opposed  by  the  Crown  and  by 
the  accused,  but  after  perusing  the  report 
of  the  Deputy  Magistrate  and  the  affidavit 
on  behalf  of  the  accused  and  hearing  the 
Government  Advocate  on  behalf  of  the 
Crown  I  have  found  it  unnecessary  to  call 
upon  Sir  Ali  Imam  for  the  accused. 

The   circumstances    are     briefly     these. 
About  5-40  A.  M.  on  the  9th  November  1924, 
there  was  a  collision  at  the  southern  level 
crossing  of  the  Cuttack  Railway  Station,  on 
the  Bengal  Nagpur  Railway  between   the 
Madras  mail  and  a  motor  lorry  driven  by 
the  accused  which  resulted  in  the  death  of 
two    and    severe  injuries  to  one  or  more 
passengers    of   the    motor  lorry.      About 
6  A.  M.a  Head  Constable  gave  information 
of  the  occurrence  to  the  Sub-Inspector  of 
Railway  Police  at  Cuttack  Railway  Station 
and  the  latter  proceeded  under  s.  174  (c)  of 
the  Cr.  P.  C.,  to  hold  an  inquest  on  the 
persons  killed  and  came  to  the  conclusion 
that  the  gateman  of  the  level  crossing,  a 
servant  of  the   applicant,  was  responsible 
for  the  accident.    While  the  Sub-Inspector 
was  conducting  this  inquiry,  the  Station 
Master  at  Cuttack  sent  an  "  all  concerned  " 
message  somewhere  about  8  A,  M.  and  the 
Superintendent  of  Police  thereafter  handed 
his  copy  to  the  Sub-Inspector  who  treated 
it  as  a  first  information  under  s.  154  of  the 


Sheikh  Makbul,  the 
the  lorry,  and  the  trial  began  in  the  Court 
of  a  Deputy  Magistrate  of  Cuttack.    The 
prosecution  case  is  that  the  accused  forced 
his  way  on  to  the  Railway  by  opening  the 
western  gate  arid  injured  the  gateman,  who 
opposed,    while  the   defence    is    that  the 
western  gate  was  open  and,  therefore,  the 
applicant  is  responsible  for  the  accident. 
The  applicant  deputed  a  Vakil  from  Howrah 
to    conduct  the  prosecution,    but    though 
it  is  alleged  by    the    applicant  that  the 
Magistrate  permitted  the  Vakil  to  conduct 
i)he  prosecution,  the  allegation  is  incorrect, 
the  fact  being  that  the  Public  Prosecutor 
was  in  charge  of  the  prosecution  and  con- 
ducted   it,    and    under    his  direction  the 
representative    of  the  Railway  took    some 
part  in  examining  witnesses  in  the  absence 
of  the  Public  Prosecutor.    Exception  was 
taken  by  the  accused  to  the  participation 
of  the  Railway  Vakil  on  the  score  of  unfair- 
ness in  his  methods.    The  Magistrate,  how- 
ever, filed  the  petition  of  accused,  framed 
a  charge  under  s.  304-A,  against  him  and 
called   upon  him    to    cross  examine.     The 
accused  thereupon  moved  the  Circuit  Court 
then  in  Session  at  Cuttack  for  a  transfer 
of  the  case  to  some  other  District  and  the 
applicant  filed  a  similar  petition  on  the 
ground  that  the  master  of  accused  holds  a 
prominent  position  in  Orissa.    The  applica- 
tions were  heard  by  Ross,  J.,  who  transfer- 
red the  case  to  Balasore  and  further  made 
the  following  order : 

44  It  should  be  noted  that  the  conduct  of 
the  prosecution  should  be  in  the  hands  of 
the  Public  Prosecutor.  The  petitioner  has 
taken  objection  to  the  part  taken  in  the  trial 
by  the  Pleaders  representing  the  Railway 
Company.  The  learned  Government  Plead- 
er, however,  has  explained  this  by  saying 
that  he  was  in  charge  of  the  case  under 
the  orders  of  the  District  Magistrate  and 
that  the  Pleaders  retained  by  the  Railway 
Company  were  only  acting  under  his  in- 
structions and  during  his  absence.  So  long 
as  this  is  clearly  understood  there  is  no 
objection  to  this  being  done  but  the  conduct 
of  the  prosecution  should  be  in  the  hands 
of  the  Public  Prosecutor/1 

The  applicant  makes  it  a  grievance  that 
this  order  was  passed  while  the  Vakil  of  the 
Railway  was  engaged  in  another  Court,  but 
it  is  clear  from  the  applicant's  petition 
that  an  attempt  made  on  behalf  of  the 
applicant  to  induce  the  leagued  Judge  iu 


[92  I.  0.  1926] 


BENGAL  NAGPUB  RAILWAY  CO  V,  MAKBCL. 


699 


Chambers  to  alter  t)ie  order  was  unsuccess- 
ful. 

When  the  trial  began  at  Balasore  the 
Vakil  for  the  applicant  presented  a  formal 
authorization  under  s.  145  (2)  of  the  Rail- 
ways Act  from  the  Agent  of  the  Railway  to 
conduct  the  prosecution,  but  the  Court 
refused  to  entertain  his  prayer  to  take 
the  lead  in  view  of  the  order  of  the  High 
Court  quoted  above.  Because  of  the  re- 
presentation made  by  the  applicant  in  his 
application  for  transfer  of  the  trial  from 
Cuttack,  the  Crown  had  in  order  to  secure 
impartiality,  specially  introduced  a  Public 
Prosecutor  from  outside  Orissa  to  conduct 
the  prosecution  of  the  accused.  This  special 
Public  Prosecutor  conducted  the  case  in 
accordance  with  his  own  ideas  of  what  is 
just  and  proper,  and  while  taking  full 
advantage  of  assistance  pressed  upon  him 
by  the  representatives  of  the  Railway  refus- 
ed to  place  himself  unreservedly  in  their 
hands  In  particular  the  Public  Prosecu- 
tor opposed  a  commitment  to  the  Sessions 
and  declined  to  put  questions  which  had 
only  a  bearing  on  the  civil  liability  of  the  ap- 
plicant in  suits  instituted  against  the  latter 
by  passengers  travelling  in  the  lorry  driven 
by  accused,  a  state  of  affairs  of  which  the 
applicant  unjustifiably  makes  a  grievance. 

The  prosecution  having  examined  thirty- 
one  witnesses,  the  Trying  Magistrate  ex- 
pressed an  intention  of  committing  the 
case  to  the  Sessions.  The  accused,  however, 
claimed  the  right  to  cross-examine  ail  the 
prosecution  witnesses  before  commitment 
and  thereupon  the  Magistrate,  considering 
that,  if  cross-examination  were  to  take  place 
in  his  Court,  it  would  be  useless  to  commit, 
gave  up  the  idea  and  framed  a  charge 
under  s  3Q4-A  for  trial  in  his  own  Court. 

He  also  declined  to  accede  to  a  prayer 
on  behalf  of  the  applicant  that  an  addi- 
tional charge  be  framed  under  s  124  of  the 
Railways  Act  Obviously  a  charge  under 
s  124,  which  punishes  with  fine  up  to 
Rs  50  for  the  opening  of  a  Railway  gate  in 
certain  circumstances  was  unnecessary  in 
law  so  that  the  point  has  no  significance 
and  need  not  be  further  discussed  At  the 
stage  at  which  applicant  obtained  the  pre- 
sent rule  the  cross-examination  which  had 
extended  to  nine  or  ten  full  days  had  just 
been  concluded  and  the  defence  having 
declined  to  adduce  evidence  the  case  had 
been  fixed  for  argument  prior  to  judg- 
ment. 
Jlr.  Cf  C.  Das,  appears  for  the  applicant, 


claims  an  order  in  his  favour  on  substantial- 
ly the  following  three  grounds. 

(1)  that    the  Trying    Magistrate  has  il- 
legally withheld  permission  to  conduct  the 
prosecution  from  the  Vakil  appointed  under 
s.  145  (2)  of  the  Railways  Act , 

(2)  that  the  Trying  Magistrate  has  ex- 
hibited bias  against  the  applicant ;  and 

(3)  that  though  the  offence  under  s.  304- A 
of  the  Indian   Penal   Code    is    triable  by  a 
Magistrate  as  well  as  by  the  Court  of  Ses- 
sions, a  higher  punishment    may  be  given 
by  the  latter 

The  third  submission  has  no  weight. 
The  maximum  term  of  imprisonment  for 
the  offence  is  within  the  powers  of  punish- 
ment of  the  Magistrate,  and  if  his  powers 
in  respect  of  fine  are  limited  to  Rs.  1,000 
while  those  of  the  Sessions  Court  aie  un- 
limited, it  is  clear  that  in  the  circumstances 
of  the  case  an  appropriate  sentence  of  fine 
would  not  exceed  Rs  1,000 

As  regards  the  first  point,  it  is  clear  that 
in  view  of  the  order  of  Ross,  J  ,  it  was  not 
open  to  the  Magistrate  to  eliminate  the 
Public  Prosecutor  and  entrust  the  conduct 
of  the  case  to  the  representative  of  the 
applicant  Mr  Das  would  draw  a  distinc- 
tion between  the  vakalatanama  filed  by  the 
Vakil  for  the  Railway  in  the  course  of  the 
proceedings  at  Cuttack,  which  was  before 
Ross,  J,,  and  the  subsequent  mandate  of  the 
Agent  under  s.  145  (2)  of  the  Railways  Act. 
But  in  fact  no  distinction  exists  except  that 
the  latter  is  more  formal.  In  the  vakalat- 
nama  the  Vakil  is,  in  so  many  words,  au- 
thorized by  the  Agent  of  the  Bengal-Nag- 
pur  Railway  Company  to  conduct  the  pro- 
secution in  the  caseagamst  Sheikh  Makbul, 
accused,  under  s  304-A  of  the  Indian  Penal 
Code.  The  circumstances  had  in  fact  not 
altered  and  it  was  not  open  to  the  Magis- 
trate to  ignore  the  orders  passed  by  the 
High  Court  in  the  case. 

Accordingly  the  question  of  the  position 
of  a  Vakil  appointed  by  the  Agent  of  the 
Bengal  Nagpur  Railway  Company  under 
s.  145  (2)  to  conduct  the  prosecution  in  this 
case  in  preference  to  the  Public  Prosecutor 
does  not  properly  arise  at  this  stage ,  the 
point  having  already  been  decided  on  the 
same  materials  by  this  Court  against  the 
contention  of  the  Railway  Company,  it 
being  explicitly  directe^  that  the  conduct 
of  the  ptosecution  shall  be  in  the  hands 
of  the  Public  Prosecutor.  The  first  point, 
therefore,  fails  It  is  not,  therefore,  neces- 
sary to  express  a  final  opinion  on.  the  sub- 


700 


BENGAL  NAOPUR  RAILWAY  CO.  V.  MAKBUL, 


[921 


"ject,  but  one  may  say  that  the  indications, 
are  strongly  against  the  claim  in  that 
regard  of  the  applicant.  Section  145  (2) 
only  entitles  a  person  authorized  by  the 
Ageint  of  a  Railway  to  conduct  prosecution 
on  behalf  of  the  Railway  Administration, 
to  do  so  without  the  permission  of  the 
Magistrate,  which  would,  except  for  the 
provision,  be  required  under  s.  495  of  the 
Or.  P.  0.  Prima  facie,  neither  s.  145  (2)  of 
the  Railways  Act  nor  s.  495  of  the  Or.  P.  0. 
affects  s.  493  of  the  latter  enactment  which 
deals  with  the  right  of  appearance  and 
precedence  of  the  Public  Prosecutor  before 
any  Court  in  which  any  case  of  which  he 
has  charge  is  under  trial.  The  Public 
Prosecutor  has  charge  of  tho  prosecution 
under  discussion  and  the  Pleader  instructed 
by  a  private  person,  including  the  Agent 
of  a  Railway  Administration,  to  prosecute  a 
case  of  which  the  Public  Prosecutor  is  in 
charge  shall,  it  is  enjoined,  act  under  the 
directions  of  the  Public  Prosecutor.  The 
entire  propriety  of  such  a  provision,  which 
could  hardly  be  better  demonstrated  than 
in  the  present  instance,  is  in  favour  of  the 
interpretation.  Then  again.  I  am  unable, 
as  at  present  advised,  to  accept  the  view 
that  there  is  no  force  in  the  argument 
advanced  by  the  learned  Government  Advo- 
cate that  s  145  (2),  of  the  Railways  Act 
contemplates  mainly,  if  riot  exclusively, 
prosecutions  for  offences  under  that  enact- 
ment, that  is  to  say,  private  prosecutions 
undertaken  by  the  Railway  Administration 
in  which  the  Public  Prosecutor  does  not 
appear  as  distinguished  from  public 
prosecutions  undertaken  or  taken  over 
'by  the  State  and  in  particular  prosecu- 
tions, such  as  the  present,  under  the  Indian 
Penal  Code. 

Before  dealing  with  the  allegation  of 
bias  on  the  part  of  the  Magistrate,  it  is 
expedient  to  indicate  more  fully  than  has 
been  done  above,  what  the  case  for  the 
prosecution  and  the  cage  for  the  defence  is. 
At  the  level  crossing  there  are  drop-gates 
aud  the  western  and  the  eastern  gates  are 
about  134  feet  apart.  Two  lines  of  Railway 
are  within  the  crossing,  the  westmost  being 
a  goods  line  passing  close  to  the  western 
gate  and  the  other  being  the  main  line 
passing  close  to  tha  eastern  gate.  The 
prosecution  case  is  that  some  one  opened 
the  western  gate  which  had  been  closed 
by  thegateman  because  the  Madras  mail 
was  about  to  pass,  and  the  accused  drove 
his  lorry  towards  the  eastern  gate  knocking 


down  the  gateman  who  tried  to  stop  >him. 
The  defence  case  is  that  the  western  gate 
was  standing  open  and  that  the  accused 
drove  his  lorry  through  it,  it  being  the  rule 
that  the  crossing  is  open  unless  both  gates 
are  closed.  Obviously,  therefore,  the  Rail- 
way is  at  least  as  deeply  concerned  with 
its  prospective  civil  liability,  if  the  .gate 
was  in  fact  open,  as  with  the  criminal 
liability  of  the  accused,  and  the  point  of 
view  of  its  representative  is  materially 
different  from  that  of  a  Public  Prosecutor 
and  from  that  of  a  Judge  presiding  in  the 
Court.  It  is  clear  that  the  former  addressed 
himself  amid  considerable  difficulties  creat- 
ed by  the  representative  of  the  applicant  to 
securing  impartial  justice,  therein  acting 
in  accordance  with  the  besit  traditions  of 
•his  office.  It  is  right  in  the  circumstances 
to  quote  here  with  approval  the  view  of  the 
Magistrate*  "He  has  conducted  the  case 
very  ably  and  impartially,  and  with  perfect 
fairness,  to  both  parties.  He  has  not  identi- 
fied himself  wholly  with  the  Railway  version 
of  the  case,  and  so  the  Railway  Pleaders  are 
dissatisfied  with  him,  The  Railway  Company 
is  an  interested  party  in  this  case  and  so  he 
should  not  ally  himself  with  them." 

The  allegation  of  bias  on  which  a  com- 
mitment to  the  Sessions  or  a  transfer  to 
another  Court  was  claimed,  was  supported 
by  four  instances,  two  of  which  appear  in 
each  of  the  two  petitions  of  the  applicant. 
They  are  :  (1)  that  the  Magistrate  did  not 
grant  the  conduct  of  the  prosecution  to 
the  applicant's  representative  ;  (2)  that  the 
case  was  not  committed  to  the  Sessions  in 
accordance  with  the  original  intention  of 
the  Magistrate  ;  (3)  that,  on  25th  June  the 
Magistrate  asked  the  Police  Sub-Inspector, 
before  he  went  into  the  witness-box  for 
cross-examination  :  "  Why  did  you  not 
send  up  the  gateman?11  and>(4)  that  on  the 
26th  June,  when  the  representative  oi 
the  Railway  was  moving  a  petition  for 
^he  production  of  a  letter  alleged  to  have 
been  sent  on  the  day  *of  occurrence  by  the 
Assistant  Station  Master  ,to  the  Civil  Sur- 
geon .at  Cuttack  requesting  the  latter  to 
examine  the  injuries  of  (the  ga,tenaaji,  the 
Magistrate  made  a  remark  which  shewed 
that  he  was  .prejudiced  a*gau*$t  <tjh,3  ap- 
plicant and  such  as,  it  is  suggested,  he 
would  not,  if  he  had  not  <been  i«fluenca4  by 
high  official  opinion,  have  -expressed  wlhsn 
the  n^atter  -was  si&bjudioe. 

The  first  instance  has  already  been  <dis- 
.cusaed  aud  it  baa  bee#  -ckteowued  that  the 


BENGAL  NAGPUfc  RAtLWlV  CO.  V.  MAKBUt. 


Magistrate's  action,  was  entirely  proper,  the 
order  of  the  High  Court  on  the  point  being 
conclusive  in1  this  trial.  As  regards  the 
second  instance,  the  Magistrate  had  a  dis- 
cretion to  commit  the  case  or  to  try  it  him- 
self. In  view  of  the  maximum  sentence, 
however,  a1  commitment  would  only  be 
justifiable  on  very  special  grounds,  and  it 
is  obvious  that  if  the  Magistrate  made  any 
mistake,  it  was  in  at  all  contemplating  com- 
mitment, When  the  accused  expressed  the 
intention  of  cross-examining  all  the  prosecu- 
tion witnesses,  the  Court  could  not  but  see 
that  a  commitment  would  result  in  an 
unwarrantable  waste  of  public  time  with- 
out any  advantage  to  anybody,  and  rightly 
re-considering  the  matter  exercised  a  sound 
discretion  in  rejecting  the  idea  of  com- 
mitment to  the  Sessions.  It  must  also  be 
remembeied  ihat  the  Public  Prosecutor 
argued  against  commitment.  Even  if  the 
Magistrate  had  not  exercised  a  sound  dis- 
cretion in  changing  his  mind,  it  could  not 
fairly  be  contended  that  the  older,  though 
unfavourable  to  the  applicant,  exhibits  even 
the  faintest  trace  of  bias.  It  was  entirely 
proper  not  to  commit  the  case  to  the  Ses- 
sions 

As  to  the  third  instance  cited,  there  was 
nothing  in  the  casual  enquiry  of  the  Magis- 
trate that  was  not,  in  the  circumstances, 
entirely  reasonable.  The  Sub-Inspector  who 
held  the  inquest  had  formed  the  opinion 
that  the  western  gate  was  not  closed  as 
asserted  by  the  prosecution,  but  was  open, 
as  stated  by  the  defence,  and  the  Court 
would  have  failed  in  its  duty  if  it  did  not 
obtain  from  the  Police  Officer  who  had  re- 
corded such  an  opinion,  the  reason  for  not 
placing  on  trial  the  gateman,  who,  if  the 
Police  Officer's  opinion  was  correct,  must 
be  responsible  for  the  occurrence  The 
Magistrate  did  not  give  expression  to  any 
opinion. 

I  accept  the  version  of  the  Magistrate 
as  to  tlie  fourth  incident  It  appears  that 
the  representative  of  the  applicant  was 
pressing  for  the  production  of  a  letter  on 
the  ground  that  it  would  show  how  the 
gateman  received  his  iniuries.  The  Magis- 
trate pointed  out  that  the  letter  could  not 
be  legally  taken  in  evidence  in  proof  of 
the  manner  in  which  the  gateman  had  re- 
ceived1 his  injuries  and  in  the  course  of 
the  discussion  remarked  .  "  Supposing  it 
W&re  written  in  that  letter  that  the  gateman 
hadcomtekby  his  injuries  by  being  knocked 
by  accused's  lorry,  do  you  think  I 


will  have  to  implicitly  believe  it?  When 
such  a  seiious  Rail  way  accident  takes  place, 
your  Railway  people  can  write  anything 
and  I  cannot  take  it  as  true  without  pioof  " 
Apart  from  other  considerations,  I  fail 
to  see  how  this  remark  indicates  bias  or 
the  influence  of  high  official  opinion  (as  to 
the  latter  there  is  not  the  slightest  trace 
of  anything  to  support  it,  and  it  is  wholly 
groundless  and  should  not  have  been  as- 
serted) The  Magistrate  only  points  out 
that  the  mere  fact  that  a  Railway  subordi- 
nate has  written  something  will  not  make 
it  evidence  or  show  it  to  be  true 

Moreover,  the  facts  clearly  show  that 
in  calling  after  great  delay  and  towards 
the  end  of  the  cioss-exaniination  for  the 
letter,  and  describing  it  as  an  important 
document,  the  representatives  of  the  ap- 
plicant then  sought  to  make  much  out  of 
nothing  at  all,  as  indeed  is  sought  now. 
No  mention  was  made  of  the  letter  in  ex- 
amination- m-  chief  In  cross-  examination 
the  gateman  says  he  carried  no  letter  and 
the  Assistant  Station  Master  says  he  did  not 
even  see  the  gateman  during  that  day  ex- 
cept shortly  after  the  accident.  The  first 
mention  is  in  cross  examination  of  the 
Station  Master  who  merely  says  that  he 
asked  the  Assistant  Station  Master  to  write 
such  a  letter  The  Assistant  Suigeon  can- 
not re-call  it  The  Civil  Surgeon,  though 
wired  to,  was  unable  to  produce  it  and  the 
case  of  the  Crown  is  that  it  does  not  exist, 
and  that  in  any  case  its  evidentiary  value 
would  be  slight  There  is  in  fact  medical 
evidence  as  to  the  injury  to  the  gate- 
man, and  the  Assistant  Station  Master 
has  himself  been  examined,  so  that  the 
only  value  of  the  letter  would  be  to  show 
that  his  deposition  is  in  accordance  with 
his  statement  in  the  letter.  The  Magistrate 
is  manifestly  right  in  his  view  that  an 
interested  party  like  the  applicant,  who, 
as  all  the  indications  show,  was  pressing 
the  case  in  a  manner  not  consonant  with 
the  impartial  conduct  of  criminal  cases  by 
the  Crown  01  a  public  authority,  who  should 
comply  strictly  with  the  law  of  evidence 
and  procedure,  more  especially  in  a  matter 
where  the  Vakil  for  the  applicant  was  pur- 
suing a  course  wherein  he  had  not  the  sup- 
port of  the  Public  Prosecutor  or  under 
whose  directions  the  Statute  enjoins  that 
he  shall  act.  Mr.  C.  C.  Das,  indeed,  con-* 
cedes  that  the  letter  is  practically  valueless 
as  evidence.  What  he  objects  to  is  the 
remark  of  the  Magistrate.  But  the  remark, 


MAffNG  TUN  tT  V.  SMPBROfc. 


[92  I.  0, 


in  my  judgment  does  not  contain  any  in- 
dication whatever  of  prejudice  or  amount 
to  anything  more  than  a  demand  that  the 
prosecution  should  prove  its  case  to  the 
satisfaction  of  tlie  Magistrate  by  admissible 
evidence.  A  similar  rebuff  to  an  unreason- 
able demand  by  the  prosecution,  especially 
when  as  in  this  case  unreasonably  urged 
or  at  a  later  stage,  is  not  infrequently  and 
with  justice  administered  to  a  Public  Prose- 
cutor without  implying  any  prejudice  on 
the  part  of  the  Judge. 

In  my  opinion  bias  and  prejudice  have 
not  only  not  been  proved  but  have  been 
abundantly  disproved.  The  trial  appears 
to  have  been  properly  conducted  by  the 
Public  Prosecutor  and  by  the  Magistrate, 
any  difficulties  arising  being  attributable  to 
unseemly  ardour  on  the  part  of  the  repre- 
sentatives of  the  applicant. 

Accordingly  no  ground  has  been  estab- 
lished on  the  merits  for  granting  any  of 
the  prayers  made  by  the  applicant 

The  Rule  is  accordingly  discharged  and 
the  trial  should  proceed  and  the  case  be  dis- 
posed of  without  any  avoidable  delay. 

I  add  that  I  have  dealt  with  the  case  as 
if  it  had  come  regularly  before  the  Court, 
but  it  is  to  be  observed  that  the  affidavits 
in  the  case  being  swoin  before  Presidency 
Magistrates  of  Calcutta  are  not  admissible 
in  this  Court  under  the  interpretation,  in 
Ramchandra  Madak  v.  King-Emperor,  Cri- 
minal Revision  No.  255  of  1^25,  of  s. 
539  of  the  Or.  P.  C.,  and  that  the  applica- 
tion might  also  have  been  rejected  on  that 
ground. 

z.  K.  Rule  discharged. 


RANGOON  HIGH  COURT. 

CRIMINAL  REVISION  No.  104-B  OP  1925. 

June  2,  1925. 

Present. — Mr.  Justice  Das. 
MAUNG  TUN  U— PETITIONER 

versus 

EMPEROR— OPPOSITE  PARTY. 
Criminal  Procedure  Code  (Act  V  of  1808),  ss.  107, 
123— Security  to  keep  the  peace —Initial  order— Sub- 
stance of  information  received  not  recorded,  effect  o/-~ 
Jurisdiction  of  Magistrate  to  take  proceedings  Surety, 
rejection  of,  ground  for  -Time  for  furnishing  security 
— Duty  of  Magistrate 

A  Magistrate  acting  under  a  107,  Or  PC,  must, 
under  s.  112  o£  the  Code,  make  an  order  in  writing 
petting  forth,  inter  alia}  the  substance  of  the  informa- 


tion received  A  failure  to  comply  with  this  provision 
would  deprive  a  Magistrate  of  jurisdiction  to  take 
pioceediiigs  under  s  107.  [p  703,  col  1] 

A  prison  against  whom  unorder  is  passed  under 
s  10V ,  Ci  P  0  ,  must  be  given  sufficient  time  to 
furnibh  socuuty  [p  702,  col  2j 

AH  long  <is  the  security  offeied  by  a  surety  is  ample, 
the  (Joint  is  bound  to  accept  the  same,  without  enquir- 
ing into  the  politics  of  the  person  standing  surety. 
[ibid  J 

If  the  Magistrate  is  not  satisfied  with  the, sureties 
tendeied,  he  should  reject  them  within  a  reasonable 
time,  so  as  to  give  the  accused  an  opportunity  of 
ottering  fresh  sureties  [p  702,  col  2,  p  703,  col  1 J 

Criminal  revision  being  review  of  an 
order  of  the  Sub-Divisional  Magistrate, 
Prome,in  Cr.  T.  No.  269  of  1924. 

Mr.  Mg   Ni,  for  the  Petitioner. 

JUDGMENT.— In  this  case  the  accus- 
ed was  called  upon  under  p.  107,  Cr.  P.  C., 
to  show  cause  why  he  should  not  enter  into 
a  bond  in  the  sum  of  11s,  3,000  with  four 
sureties  on  the  ground  that  he  is  likely  to 
commit  a  breach  of  the  peace  and  disturb 
the  public  tranquillity  and  doing  wrongful 
acts  that  may  occasion  a  breach  of  the  peace 
by  prohibiting  people  from  paying  capita- 
tion tax  and  arranging  to  make  demonstra- 
tions in  large  crowds. 

The  notice  was  served  on  the  accused  on 
the  3rd  of  October  1924,  and  he  was  called 
upon  to  $how  cause  immediately.  The 
order  was  passed  on  the  same  day,  and  the 
accused  was  sentenced  to  simple  imprison- 
ment for  one  year  on  the  same  day,  as  he 
was  unable  to  furnish  security. 

The  learned  Magistrate  in  his  diary 
remarks  that  "the  accused  is  unable  to  fur- 
nish sufficient  security  although  sufficient 
time  is  given.11  I  cannot  understand  how 
the  learned  Magistrate  could  expect  any 
person  to  furnish  four  sureties  of  Rs.  3,000 
each  on  the  very  day  on  which  notice  to 
show  cause  was  issued  to  him,  and  the 
order  passed.  Persons  against  whom  orders 
are  passed  under  s.  107,  Cr.  P.  C.,  must  be 
given  sufficient  time  to  furnish  security. 

It  appears  from  the  record  that  the  Magis- 
trate refused  to  accept  the  sureties  offered 
by  the  applicant  simply  because  they  were 
Wunthanu  members.  The  Magistrate  had 
no  justification  in  doing  so.  As  long  as  the 
security  is  ample,  the  Court  is  bound  to 
accept  the  same  without  enquiring  into  the 
politics  of  the  person  standing  surety. 

In  this  case  the  sureties  were  tendered  on 
the  6th  of  October  1924,  but  no  orders  were 
passed  accepting  or  rejecting  them  till  the 
6th  of  January  1925.  This  delay  is  inex- 
cusable. The  Magistrate,  if  he  was 


SHAIKH  KARIM  V.  EMPEROR. 


[921.0.1926] 

satisfied  with  the  sureties  tendered,  should 
have  rejected  them  within  a  reasonable 
time  so  as  to  give  the  accused  an  opportunity 
of  offering  fresh  sureties. 

The  accused  again  offered  sureties  on  the 
9th  of  January.  No  orders  were  passed  on 
that  by  the  Sub-Divisional  Magistrate  up 
to  date,  the  explanation  of  the  Sub-Divi- 
sional Magistrate  being  that  the  case  had 
not  been  received  back  by  him  yet  That 
is  no  explanation  at  all.  The  Sub-Divisional 
Magistrate  must  have  known  what  the 
orders  of  the  Sessions  Judge  were,  and  he 
should  have  passed  orders  on  the  applica- 
tion by  the  accused  within  a  reasonable 
time  By  this  unreasonable  delay  the  ac- 
cused had  been  kept  in  custody  from  the 
3rd  of  October  till  his  release  by  the  order 
of  this  Court  This  Couit  on  the  5th  Maich 
1925,  ordered  that  the  petitioner  may  be  ic- 
leased  pending  disposal  of  this  application 
on  his  own  bond  in  Ks.  2,000  with  two 
sureties  in  Rs.  1,000  each. 

The  order  of  this  Court  was  clear  enough, 
but  still  the  Sub-Divisional  Magistrate  sent 
it  back  to  this  Court  through  the  District 
Magistrate  stating  that  the  High  Court's 
order  did  not  expressly  state  as  to  whether 
the  surety  was  to  be  accepted.  This  Couit 
thereupon  passed  peremptory  orders  that 
the  order  directing  the  release  of  the  peti- 
tioner on  bail  is  perfectly  clear  and  should 
be  immediately  complied  with.  It  is  only 
then  that  on  the  25th  of  March  the  accused 
•was  released  on  bail.  It  is  regrettable  that 
all  this  delay  should  have  occurred  in  ac- 
cepting the  sureties  tendered  by  the  peti- 
tioner. Section  112,  Cr.  P.  C  ,  requires  that 
the  Magistrate,  when  acting  under  s.  107, 
shall  make  an  order  in  writing  setting  forth 
the  substance  of  information  received,  the 
amount  of  the  bond  to  be  executed,  the 
terms  for  which  it  is  to  be  m  force,  and 
the  number,  character  and  class  of  surety 
required. 

There  is  nothing  on  the  record  in  this 
case  recording  the  substance  of  the  informa- 
tion received  by  the  Magistrate  before  he 
proceeded  to  act  under  s.  107.  All  that  he 
records  in  his  diary  is  "Case  under  s.  107, 
Cr.  P.  0.,  with  D.  M/s  sanction  sent  up 
from  Hmawza.  P.  S.  Accused  present. 
Order  drawn  up  and  explained  to  accused. 
Six  witnesses  examined,  etc.  Order  passed.1' 
This  is  not  a  compliance  with  the  provisions 
of  s.  112,  Or.  P.  C  ,  and  the  Magistrate  acted 
without  any  jurisdiction  in  calling  upon  the 
Accused  to  show  cause.  Moreover  the  evi- 


dence  does  not  disclose  a  case  for  the  peti- 
tioner to  be  bound  down  under  s.  107,  Cr. 
P.  C, 

The  order  of  the  Sub-Divisional  Magis- 
trate is  set  aside,  and  the  accused's  bail- bend 
will  be  cancelled. 

z.  K  Order  set  aside. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  PETITION  No  76  OF  1925 

December  19,   1925 

Present.—  Mr.  Fmdlay,  Officiating  J.  C. 
SHAIKH  KARIM  AND  OTHERS— APPLICANTS 

versus 
EMPEROR—OpposiTE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1808),  ss  ^«?(J, 
lt(J7—llad  application  ? ejected  by  Sesnons  Judge — 
Poiueis  of  High  Court  to  fj) ant— Respectability  of 
accused  and  sufficiency  of  security,  whether  ground 
for  fjr anting  bail—Suspension  of  sentence,  when  to  be 
gi  anted 

The  High  Couit  has  power  to  grant  bail  under 
s  426  (2)  of  the  Ci  P  C  ,  after  an  application  for  the 
same  made  after  a  conviction  by  a  Magistrate  hag 
been  rejected  by  the  Sessions  Judge  But  the  Court 
will  only  mterfeie  with  the  discretion  exercised  by 
the  Si'&bioiib  Judge  in  icf using  bail  if  that  discretion 
was  manifestly  wiong  or  if  m  fact  no  disci etion  has 
been  exciciscd  [p  704,  col  1  ] 

The  pimciplo  which  &hould  guide  the  High  Court 
in  dealing  with  such  an  application,  is  whether 
theie  aie  leasonable  grounds  for  believing  that  the 
applicant  has  committed  the  offence  in  question,  [p. 
701,  col  2  } 

Although  the  High  Court  has  unfettered  powers  to 
giant  bail,  yet  in  exercising  these  powers  the  High 
Coin  t  ought  to  have  regard  to  the  limitations  im- 
posed on  lower  Couitb  m  this  connection  [ibid] 

The  mere  pievious  respectability  of  a  man  is 
per  se  no  sufficient  reason  for  granting  bail  after  he 
has  been  convicted  of  a  ci  immal  offence  [p  704,  col , 

The  question  of  giant  of  bail  is  not  only  to  be 
dealt  with  from  the  point  of  view  of  there  being  likeli- 
hood or  not  of  the  accused  person  absconding  [ibid  \ 

in  the  .ibsence  of  very  special  cause,  no  oidei  for  a 
suspension  of  sentence  should  be  passed,  as  the  lesult 
of  such  an  older  is  that  if  the  appeal  fails  hnally 
the  convicted  person  only  serves  the  original  period 
of  his  sentence  less  the  period  of  suspension  [p  704, 
col  2] 

Application  for  grant  of  bail  against  an 
order  of  the  Sessions  Judge,  Nagpur,  dated 
the  16th  December  1925. 

Mr   P.  C.  Dutt,  for  the  Applicants. 

ORDER.— The  applicant  Shaikh  Karim, 
along  with  y  other  co-accused,  applicants 
Shaik  Hasan,  Abdul  Mannan,  Muhammad 
Ishaq,  Muhammad  Sharif,  Shaikh  Abbas, 
Abdul Sattar,  Shaikh  Dilawar, Shaikh  Sardar 
and  Wazir  Khan,  whose  applications  are 


704 


KARIM  t>. 


1.  a 


disposed  of  by  this  order,  hag  beer,  con- 
victed by  the  Sub-Divisional  Magistrate, 
Kamptee,  on  16th  December  1925  of 
offences  punishable  under  sw.  147  and  296, 
Indian  Penal  Code,  and  sentenced  to  con- 
current terras  of  six  months*  rigorous 
imprisonment.  Pending  the  lodging  of  an 
appeal  in  the  Sessions  Couit  an  application 
to  that  Court  was  made  for  bail,  and  the 
Sessions  Judge  has  rejected  the  said  appli- 
cation on  16th  December  1925.  It  ispertinent 
to  notice  that  in  the  said  application  the  only 
grounds  alleged  for  granting  bail  was  that 
the  applicant*  were  respectable  persons, 
some  of  them  being  people  of  substance  ; 
that  the  case  was  a  trivial  one  and  that  the 
applicants  were  willing  to  give  ample 
security. 

On  the  first  point  I  would  only  desire  to 
remark  that  the  mere  previous  respectabili- 
ty of  a  man  is  per  se  no  sufficient  reason  for 
giving  bail  when  he  has  been  convicted  of 
a  criminal  offence.  On  the  second  point, 
the  case  was,  according  to  the  prosecution, 
one  of  an  organised  attack  by  Muhammadans 
on  a  Hindu  religious  procession,  which 
resulted  in  a  general  riot ;  it  is  impossible 
from  any  point  of  view  to  describe  such  a 
case  as  a  trivial  one.  As  regards  the  appli- 
cants being  able  to  afford  reasonable  secu- 
rity, the  question  of  grant  of  bail  is  not 
only  to  be  dealt  with  from  the  point  of  view 
of  there  being  likelihood  or  not  of  the 
accused  persons  absconding. 

In  the  applications  to  this  Court  a 
variety  of  grounds  dealing  with  questions 
of  fact  and  law  have  been  advanced.  1  need 
hardly  say  that  it  would  be  undesirable, 
in  the  interests  of  the  applicants  themselves, 
if  not  impossible,  for  this  Court  at  thepresent 
stage  to  enter  into  details  on  such  matters. 
In  argument  before  me  some  reference  has^ 
been  made  to  an  alleged  legal  flaw  in  the 
trial  with  reference  to  an  application  made 
on  behalf  of  the  applicants  under  s.  162,  Or. 
P.  C.  That,  again>  is  a  matter  which  I 
must  decline  to  enter  into  at  the  present 
stage. 

The  power  of  this  Court  to  grant  bail, 
even  in  a  case  like  the  present,  is  undoubted: 
c/.,  s.426,  sub-s.  (2),  Or.  P.  C.  This  Court 
will,  however,  only  interfere  with  the 
discretion  exercised  by  the  Sessions  Judge 
in  refusing  bail,  if  that  discretion  was 
manifestly  wrong  or  if,  in  fact,  no  real 
discretion  has  been  exercised.  There  is 
nothing  to  show  in  the  Sessions  Judge's 
order  that  either  of  these  conditions  have 


been  fulfilled.  I  have,  however,  read  the 
judgment  of  the  Magistrate  and  it  seems  to 
me  that  in  the  careful  and  elaborate  judg- 
ment he  has  written,  there  are  good  pnma^ 
facie  grounds  for  supposing  the  applicants 
to  have  been  guilty  of  the  offences  charged.* 
It  may  be  that  the  Sessions  Judge,  when  he 
hears  the  appeal,  may  come  to  a  contrary 
finding,  but,  as  the  case  stands  at  present,. 
it  is  impossible  for  me  to  hold  that  there 
are  not  reasonable  grounds  for  believing 
the  applicants  to  be  guilty  of  the  offences 
of  which  they  have  been  convicted.  In 
Sourindra  Mohan  Ghuckerbutty  v.  Emperor 
(I)  Stephen  and  Carnduff,  JJ.,  pointed  out 
that  although  the  High  Court  has  unfettered 
powers  to  grant  bail,  yet  in  exercising  these 
powers  the  High  Court  ought  to  have 
regard  to  the  limitations  imposed  on  lower 
Courts  in  this  connection. 

It  is  true  that  s.  497,  Cr.  P.  C.,  as  now 
amended,  only  provides  that  a  person 
accused  of  a  non-bailable  offence  shall  not 
be  released  on  bail  if  there  appear  to  be 
reasonable  grounds  for  supposing  that  h&- 
has  been  guilty  of  an  offence  punishable 
with  death  or  transportation  for  life.  We 
are  here,  however,  concerned  with  men  who 
have  been  actually  convicted,  and  in  those 
circumstances  the  principle,  which  will 
necessarily  guide  this  Court,  will  be  whe- 
ther there  are  reasonable  grounds  for 
believing  that  the  applicants  committed 
the  offences  in  question.  In  the  present* 
case,  therefore,  on  the  materials  which  it 
is  open  or  desirable  for  me  to  consider  at 
present,  I  cannot  see  any  sufficient  reason 
for  granting  bail:  c/.,  King-Emperor  v.  Badri 
Prasad  (2). 

It  has  been  suggested  to  me  that  failing' 
bail,  the  execution  of  sentences  on  the  appli- 
cants might  be  suspended.     This  request 
also  I  am  not  prepared  to  grant.    As  s.  426,  ' 
Cr.  P.  C,,  stands,  the  result  of  a  suspension 
of  sentence  is  only  that  if  the  appeal  finally 
fails,  the  convicted  person  only  serves  the* 
original  period    of  his  sentence    less  the 
period  of  suspension.  Such  an  order  should/ 
in  my  opinion,  only  be  passed  when  very 
special  cause  is  shown. 

All  10  applications  are  accordingly    dis-' 
missed. 

z.  K.  Applications  dismissed. 

(1)  6  Ind    Cas.  8;  37  0.  412;   14  C.  W.  N.  512|  II3 
Or  L  J.  217. 

(2)  5  A.  L.  3.  419;  A.  W.  N.  (1908)  105;  8  Or.  L.  J. 
49. 


I,  0. 


RADHA 


HL  v.  AHSA^&IAL-ISHAR  DAS. 


LAHORE  HIGH  COURT, 

MISCELLANEOUS  FIRST  CIVIL  APPEAL  No,  1061 

OF  1925 

October  27,  19J5. 

Present. — Mr   Justice  Addison. 

THE  FIRM  RADHA  KISHEN-CHUNI 

LAL,  THROUGH  RAUNKI  RAM— PLAINTIFF 

— APPELLANT 

versus 

THE  FIRM   AHSA  MAL  LSHAR  DAS, 
THROUGH  LAKHMI  GHAND — DEFENDANT 

— RESPONDENT 

Civil  Procedure  Code  (Act  V  of  1908),  Sch  //, 
paras  20,  21-  Contract  Act  (IX  of  1872\  s  251— 
Arbitration  A  ward —Reference  and  existence,  of  dis- 
pute, whether  can  be  enquired  into  Partnership- - 
Partner,  whether  can  make  reference—  tteceuer,  ap- 
pointment of,  effect  of 

Oa  an  application  being  made  under  paia  20  of 
Sdi  11,0  1*  0  ,  it  is  open  to  the  Com t  to  enquire 
wliethfii  there  was  any  mattei  in  dispute  between  the 
patties  to  be  icfoned  to  nrbitiation  and  wh<jthei 
there  was,  as  a  mattei  of  fact,  any  refeience  to  arbilia- 
tion  by  the  parties  [p  706,  col  2  ] 

One  partial  in  a  fiim  has  no  authonty  to  enter  into 
an  agreement  to  lefei  a  dispute,  to  uhieh  tlie  In  in  is 
a  pii  ty,  to  arbitration,  fp  707,  col  1J 

Where  a  Receiver  has  been  appointed  to  wind  up  the 
affairs  of  a  partnership,  to  collect  all  outstanding,  to 
pay  debts  and  to  distribute  the  sinplua,  a  partner  of 
the  fiim  has  no  authority  to  refer  to  arbitration  a 
question  relating  to  the  liability  of  the  turn  to  pay  a 
sum  of  money  to  a  third  person  [p  707,  col  2  ] 

Miscellaneous  first  appeal  from  an  order 
of  the  Senior  Subordinate   Judge,  Jhelum, 
dated  the  26th  January  1925 
Dr.  Nand  Lai,  for  the  Appellant 
Mr.  Dev  Raj  Sawhney.ior  the   Respond- 
ent. 

JUDGMENT, — An  application  was 
made  on  the  13th  August  1924  under  Sch. 
II,  paras.  20  and  21,  0.  P.  C.,  by  the  Firm 
Radha  Kishen-Chum  Lai  through  Riunki 
Ram,  purporting  to  be  its  manager,  against 
the  Firm  Ahsa  Mal-Ishar  Das,  through  Lakhmi 
Ohand  son  of  Ganda  Mai,  described  as  its 
managing  partner,  to  file  an  award  dated 
the  13th  August  1924  and  to  have  it  made 
a  decree  of  the  Court.  The  application  was 
made  the  same  day  the  award  was  written 
and  when  it  was  presented  the  two  persons 
described  as  the  managers  were  present  as 
well  as  the  arbitrator.  According  to  the 
award  two  persons  were  partners  of  the  Finn 
Ahsa  MaUsharDas,  namely,  Lakhmi  Ohand 
son  of  Ganda  Mai,  who  purported  to  be  its 
managing  partner,  and  another  Lakhmi 
Ohand  son  of  Ishar  Das  and  the  arbitrator 
awarded  Rs.  10,743,  against  the  Firm  Ahsa 
MaWshar  Das  in  favour  of  the  Firm  Radha 
Jiishen-Ohuni  Lai  with  interest  at  12  per  cent. 

** 


705 

per  annum  till  payment.  In  spite  of  the  large 
amount  involved  Lakhmi  Ohand  son  of 
Ganda  Mai  signed  the  award  and  also  agreed 
that  it  should  be  filed  in  Court.  On  the 
3 1st  October  i  92 4  it  came  to  the  notice  of 
the  Court  from  the  statement  of  Raunki  Ram 
that  he  had  only  been  a  paid  servant  of  the 
plaintiff  Firm  Radha  Kishen-Ohuui  Lai 
which  had  ceased  to  exist  three  years  before 
the  alleged  arbitration  He  also  disclosed  that 
Radha  Kishen,  one  of  its  two  partners,  was 
dead  and  that  lie  hai  no  power-of-attorney 
from  its  other  partner  Chuni  Lai,  who  was 
his  brother-in-law.  In  fact  Raunki  Ram 
signed  tho  agreement  to  refer  and  signed 
the  award,  and  put  in  tho  application  to  the 
Court  only  on  the  alleged  oral  instructions 
of  Chum  Lai  and  it  is  obvious  that  he  had 
n^  power  to  do  these  acts  The  Court  there- 
upon ordered  notice  to  issue  to  tho  defend- 
ant Firm  Ahsa  Mai  Ishar  Das,  at  Karachi, 
and  to  Chuni  Lai,  but  I/ikhmi  Chand  son 
of  Ganda  Mai  at  once  volunteered  a  state- 
ment to  the  Court  that  the  defendant  firm 
had  been  closed  or  dissolved,  though  he 
used  to  institute  and  defend  suits  on  its  be- 
half. He  added  that  the  share-holders 
were  — 

Himself,  i  e  Lakhmi  Chand,  san  of  Ganda 
Mai,  Re.  0-5-4 

Lakhmi  Chand  son  of  Ishar  Das, 
Re,  0-10-8,   He  also  said  that  the  dealings  of 
that,  firm  came  to  him  on  an  award.  Accord- 
ingly the  Court  summoned  the  other  Lakhmi 
Chand  and  Chuni  Lai. 

Chum  Lai  did  not  appear  on  the  25th 
November  1924  but  Lakhmi  Chand  son  of 
Ishar  Das  did  On  that  date  Raunki  Ram 
further  disclosed  that  Chuni  Lai  and 
Lakhmi  Ohand  son  of  Ganda  Mai  were  true 
brothers,  so  that  he  was  the  brother-in-law 
of  both  of  them  By  the  consent  award, 
therefore,  the  dissolved  firm,  in  which  Chuni 
Lai  was  a  partner,  got  an  order  against  tne 
dissolved  firm  in  which  his  brother  Lakhmi 
Chand  son  of  Ganda  Mai,  was  a  partner  to 
the  extent  of  one-third,  for  a  large  sum  of 
money  with  interest.  Chuni  Lai  ultimately 
appeared  on  the  13th  December  1924  and 
admitted  that  his  firm  was  closed  or  dis- 
solved some  five  years  before  and  that  Radha 
Kishen,  the  deceased  partner,  had  left  a 
minor  son,  who,  however,  had  no  connection 
with  the  firm.  He  further  said  that  he  had 
orally  authorised  his  brother-in-law  Raunki 
Ram  to  act  for  him  and  that  the  defendant 
firm  had  been  closed  for  three  or  four  years. 
Lakhmi  Chand  son  of  Ganda  Mai  made  3, 


further  statement  on  the  13th  December 
1924  that  Ahsa  Mal-Ishar  Das  was  not  yet 
dissolved  and  that  he  was  full  owner  of  that 
firm  by  both  the  arbitration  awards  though 
this  goes  against  his  own  consent  awaid. 
He  admitted  that  Kimat  Rai  had  been  ap- 
pointed by  the  Court  of  the  Judicial  Com- 
missioner, Karachi,  as  Receiver  of  the  Firm 
Absa  Mal-Ishar  Das  to  collect  outstandings 
and  pay  debts  with  what  he  collected.  He 
also  said  that  he  had  got  no  authority  from 
the  Receiver  to  enter  on  this  arbitration 
and  that  the  other  Lakhmi  Chand  son  of 
Ishar  Das  used  to  give  assent  to  what  he  did, 
though  it  was  not  asserted  that  he  assented 
to  this  arbitration. 

The    other  Lakhmi  Chand  son  of  Ishar 
Das  appeared  on  the  25th   November  1924 
by  Counsel  who  filed  a    written   statement 
and  made  an  oral  one.    He  objected    that 
Raunki  Ram  could    not  carry  on  the  suit  on 
the  oral  instructions  of  Chum  Lai.    This  was 
certainly  correct  but  when  Chuni  Lai  came 
forward  later,  the  position  changed  at  least  as 
far  as  the  suit  is  concerned.    It  was  further 
stated  (1)    that  there  \\as  no  reference   to 
arbitration  on  behalf    of  either  of  the  two 
firms,  and   (2)  that   there  was   no    dispute 
between  them  so  that  therecould  be  no  refer- 
ence. It  was  further  explained  that  the  Firm 
Ahsa  Mal-Ishar  Das  was  dissolved  in   No- 
vember 1917  by  an  award  filed  in  the  Court 
of  the   Judicial  Commissioner.    Ishar  Das 
died  in  February  1918  when  his  son  and  heir 
Lakhmi  Chand,  son  of   Ishar   Das,  was  13 
years  old.    A  fresh  dispute  arose  then  and 
the  same  arbitrator  Kimat  Rai,  settled  it  by 
a  second  award    in  October  1918  and  it  be- 
came a  rule  of  the  Court  on   15th  October 
1919.    Both  the  Lakhmi  Chands,  one  being 
represented  by  his  mother,  then  moved  the 
Judicial     Commissioner   that   Kimat    Rai 
should  be  appointed  Receiver  to   recover 
the  outstandings  and  discharge  the  liabi- 
lities    of     the    partnership,     details     of 
which  weie  given  in  a  list  prepared  by 
Lakhmi  Chand  eon  of  Ganda  Mai,  which 
was,  however,  not  admitted  necessarily  to 
be  correct  by  the  other    Lakhmi    Chand. 
The  Receiver  finally   had  to    distribute  the 
surplus  of  the  diseolvedpartnership  between 
the  parties,  i  e.,  between  the  surviving  part- 
ner Lakhmi  Chand  eon  of  Ganda  Mai  jand 
the  son  of  the  deceased  partner,    Lakhmi 
Chand  son  of  Ishar  Dae.    The  Judicial  Com- 
missioner accordingly  appointed  Kin* at  Rai, 
Receiver  with  the  pOTieis  noted  alovein 
December  1919.    All  this  ie  supported  and 


LAL  V,  AH8A  MAL-tgflAR  t)A0.  [92  I.  0.  1926J 

proved  by  the  copies  of  the  joint  application 
of  the  parties  concerned  and  the  order  pass- 
ed by  the  Judicial  Commissioner  together 
with  a  copy  of  the  list  of  assets  and  liabili- 
ties referred  to  above,  which  are  upon  this 
record. 

It  is  perfectly  clear  that  all  the  parties 
knew  the  contentions  marked  (1)  and  (2) 
above  on  behalf  of  Lakhmi  Chand  son  of 
Ishar  Das  and  the  Couit  then  proceeded  to 
determine  them,  after  noting  on  the  13th 
December  1924  that  the  parties  had  made . 
the  statements  and  given  the  evidence  they 
desired.  A  date  was  then  fixed  for  argu- 
ments, and  on  the  26th  January  1925  the 
Court  dismissed  the  application  on  the 
grounds  (1)  that  there  was  no  reference  to 
arbitration  on  behalf  of  the  alleged  firm, 
though  there  was  an  attempt  by  the  two 
brothers,  Chuni  Lai  and  Lakhmi  Chand, 
and  their  brother-in-law  Raunki  Ram,  to 
defraud  the  other  Lakhmi  Chand  and  (2) 
that  there  was  no  matter  in  dispute  between 
the  two  firms  to  be  referred  to  arbitration. 
Relying  on  the  opening  words  of  para.  21  of 
the  Second  Schedule  of  the  C.  P.  C ,  it 
held  that  that  was  sufficient  to  dispose  of 
the  application.  Against  this  decision  the 
plaintiff  firm  through  Chuni  Lai  has  filed 
thisappeal. 

The  Court  also  appears  to  have  com- 
menced proceedings  under  s,  476,  Cr.  P.  C., 
for  this  Court  was  moved  to  stay  them,  pend- 
ing this  appeal. 

It  was  argued  before  me  that  the  Court 
erred  in  not  framing  issues  and  allowing 
parties  to  produce  evidence.  The  above 
discussion  is  sufficient  to  dispose  of  this 
contention.  The  parties  knew  what  was  in 
issue  and  said  they  had  no  further  state- 
ments to  make  or  evidence  to  give.  A  date 
was  fixed  for  arguments  and  the  case  was 
argued  on  these  two  points,  and  no  attempt 
was  made  to  say  that  there  was  any  other 
evidence  to  produce.  There  is  thus  no  force 
in  grounds  Nos,  6  and  7  of  the  appeal. 
The  merits  of  the  case  were  obvious!)-  not 
affected  in  these  ciicumstancesand  B,  &J,  C* 
P.  C.,  in  any  case  applies. 

It  was  next  aigued  (giounds  Nos.  8  and  9) 
that  the  Court  had  no  power  to  decide  the 
two  matters  it  did  but  was  confined  to 
deciding  any  objections  under  paras.  14 
and  15  of  the  fcecond  Schedule,  0.  P.  0, 
This  is  obviously  wrong  for  the  opening 
woi-ds  of  para.  21  of  the  Second  Schedule 
were  inseiled  to  set  at  rest  this  question, 
as  to  which  different  views  had  been  taken 


[02  I.  0, 


KlSHBtt-CaUNl  LAL  V,  AflSA  MAL-IflHAR  DA 3. 


by  some  of  the  High  Courts,  See  also  Ganesfi 
Singh  v.  ATas/ii  Stnpfc  (1)  and  Firm-  Man*a 
Ram-Gordhan  Das  v.  Firm  Mangal  Sain- 
Duni  Chand  (2)  (Lahore  High  Court)  and 
Dip  Chand  v,  Sahibdino  (3).  The  case  re- 
ported as  Sassoon  and  Co.  v.  Ramdutt  Ram- 
Kissen  Das  (4)  is  not  against  this  view 
as  it  was  a  case  under  the  Indian  Arbitra- 
tion Act  and  not  under  the  C.  P.  C. 
Pokhardas  Jashiomal  v.  Forbes  Forbes, 
Campbell  &  Co.  (5)  is  not  in  point  for  the 
same  reason. 

The  first  five  grounds  of  appeal  amount 
to  this  that  there  was  a  valid  reference  of  a 
disputed  matter  to  arbitration  on  behalf  of 
both  of  the  firms.  It  was  held  ia  Ram  JS/ia- 
rose  v.  Kalu  Mai  (6)  that  one  partner  cannot 
enter  into  an  agreement  to  refer,  the  reason- 
ing being  based  on  s.  251  of  the  Contract 
Act  The  English  authorities  are  admittedly 
to  the  same  effect.  The  Madras  High  Court 
has  taken  a  similar  view  in  Chandooru  Pan- 
nayyav  Venugopala  Rice  Factory  Co  ,  Ltd. 
(7)  and  Venkatadiellam  Chetti/  v.  Ramana- 
thati  Chelty  (8).  There  is  a  full  discussion 
of  this  question  by  the  Calcutta  High  Court 
in  Mohamad  Akbar  v.  Dwarka  Nath  (9).  In 
it  the  plaintiffs  sued  as  legal  representatives 
of  a  deceased  partner  to  have  the  partner- 
ship wound  up.  It  was  held  that  it  was  the 
duty  of  the  surviving  partners  to  take  all 
steps  necessary  for  the  completion  of  their 
unperformed  engagements  (See  s  263  of 
the  Contract  Act),  But,  after  the  death  of 
one  partner,  it  was  held  that  a  dispute  be- 
tween the  partnership  and  a  third  party 
could  not  be  referred  to  arbitration  by  the 
surviving  partners.  This  decision  was  bas- 
ed on  the  Indian,  English,  and  United  States 
judicial  decisions  and  it  ison  all  fours  with 
the  present  case. 

On  behalf  of  the  appellant  I  was  referred 
to  Ghaznavi  &  Co.  v.  Budge- Budge  Jute  Mills 
(10)  in  which  it  was  held  that  an  award  was 

(1)  28  A  621;  A  W  N  (1906)  136. 

(2)  65  Ind.  Cas  497,  A*  I  R.  1922  Lah  HO. 

(3)  12  Ind  Cas  639,  5  S  L  R  92. 

(4)  70  Ind,  Cas  777;  50  C.  1;  A   I    R   1922  P.  C. 
374;  37  0  L  J.  336:  44  M.  L.  J.  758,  27  C  W.  N.  660, 
(1923)  M.    W.  N.   372,  18   L.    W.    537,  49 1    A    366 
(P.  0.)^ 

(5)  19  Ind.  Cas.  363,  6  S  L  R.  127. 

(6)  22  A.  135;  A.  W.  N.  (1900;  12;  9  Ind.  Dec.  (N.  s ) 

(7)  43  Ind.  Cas.  508,  22  M.  L.  T    520;  7  ^  W.  114; 
(1918)  M  W.  N  5L 

(8)  59  Ind.  Cas.  501,  12  L.    W.  228,  (1920)  M,  W.  N. 
502;  39  H.  L.  J.  269. 

(9)  6  Ind.   Oag;  63;  11  0,   L,  J.  658;]  14  0,  W,  N, 
1108, 

25  Ind,  CM.  955, 


not  bad  for  the  facts  that  it  was  made 
against  a  firm  without  ascertaining  who  were 
the  parties  liable  as  the  new  0.  P.  0  provid- 
ed for  suits  against  firms  in  the  firm's  names, 
That  ruling  obviously  is  of  no  help  in  the 
special  circumstances  of  this  case  Besides 
it  wasacompulsory  reference  under  the  terms 
of  the  contract.  Similarly,  Sukha  Nand  v, 
Behari  Ram-Ishar  Das  (11)  and  Bishambar 
Mal-Pala  Mai  v.  Firm  Ganga  Sahai  Nihal 
Chand  (12)  are  obviously  not  in  point.  I, 
therefore,  hold  that  there  was  no  reference 
to  arbitration  on  behalf  of  either  of  the 
firms  named  and  that  the  application  to  file 
the  award  was  consequently  rightly  dismis- 
sed under  the  opening  words  of  para,  21  of 
the  Second  Schedule,  C.  P.  C. 

This  ease  is  even  stronger  than  the  one 
reported  as  Mohamad  A  kbar  v  Dwarka  Nath 
(9)  as  a  Receiver  is  in  existence  winding  up 
the  partnershipaffaiisof  AhsaMal-Ishar  Das 
under  the  Court  of  the  Judicial  Commis- 
sioner. It  has  been  proved  that  he  has  been 
given  full  powers  to  collect  all  outstandinga 
and  to  pay  debts  and  to  distribute  the  sur- 
plus. It  was,  therefore,  not  possible  for 
Lakhmi  Chand  son  of  Oanda  Mai  to  refer  a 
question  as  to  whether  the  defendant  firm 
owed  any  thing  to  any  one  See  Pollock  and 
Mulla's  Contract  Act,  i?th  Edition,  page  807. 

It  was  also  argued  by  the  respondent's 
Counsel  that  there  could  have  been  no 
matter  in  dispute  to  refer  to  a  arbitration  as 
in  thelist  handed  over  by  Lakhmi  Chand 
son  of  Ganda  Mai  himself  to  the  Receiver, 
this  debt  is  not  included  and  as  any  debt 
due  by  the  dissolved  firm  most  have  been 
time-barred  before  August  1914.  In  the 
absence  of  any  other  evidence  this  conten- 
tion must  also  prevail.  The  list  in  question 
has  been  proved  and  there  is  nothing  to  re- 
but it. 

I  have  already  shown  that  it  has  not  been 
established  that  the  whole  of  the  business 
of  Ahsa  Mai  Ishar  Das  has  been  handed  over 
to  Lakhmi  Chand  son  of  Ganda  Mai  by  the 
two  awards  referred  to  but  that  on  the  con- 
trary a  Receiver  is  liquidating  this  firm.  Even 
in  the  award  it  is  stated  that  both  the  Lakhmi 
Chands  are  partners  in  it.  Likewise  it 
is  not  established  that  Chuni  Lai  is  the  sole 
proprietor  of  RadhaKishen-Chuni  Lai  with 
full  powers  as  regards  it  If  only  the  two 
brothers  Chuni  Lai  and  Lakhmi  Chand  son 
of  Ganda  Mai  were  meant  to  be  involved,  it 

(11)  68  Ind.  Cas  750;  A.  I  R.  1923  Lah.  103, 

(12)  71  Ind,  CM.  734;   5  L.  L.  J.  5;  A,  L  R,  1981 


70S 


MAN'SABAtt  1?.  BtDHtt. 


would  have  been  easy  for  them  to  get  an 

award  against  one  brother  in  favour  of  the 

other.    This  disposes  of  all  the    grounds 

argued. 

*   in  the  result  this  appeal  is  dismissed  with 

costs. 

z.  K.  Appeal  dismissed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  320  OF  Iy24. 

July  4,  1925, 

Present:— Mr.  Hallifax,  A.  J.  C. 
MANSARAM— PLAINTIFF— APPELLANT 

versus 

BUDI1U  AND  ANOTHER— DEFENDANTS — 
RESPONDENTS. 

C  P  Tenancy  Act  (1  of  WM),  s  U>^  Sch  II,  Ait 
J,  scope  of — Dii*put>i>&Si>i(>n  <>f  tenant  (>y  other  lJi<tn  land- 
Lord  -"Tenant"  whether  includes  holder  oj  tiuney 
Number  in  tiambatfuir  Teirttvn/ 

Section  101  and  Ait  1  of  the  Second  Schedule  of  the 
C  T  Tenancy  Act  apply  to  allbiulaioi  pobbeshioii  b}  a 
person  claiming  to  bo  a  tenant,  iiujs],ecti\c  ol  the  tact 
as  to  whether  the  peison  keeping  lam  out  of  po^se  s- 
sion  is  the  landlord  ot  the  village  01  any  other  peison 

The  holdet  of  a  Suivey  Numbei  in  the  Sambalpnr 
Terntoiy  is  a  "tenant"  within  tho  meaning  oi  Ait  1 
of  Sch  ll  to  the  <J  P,  Tenancy  Act 

Appeal  against  a  deciee  of  tlie  District 
Judge,  Bilaspur,  dated  the  30th  April  11)24, 
in  U.  A.  No.  50  of  1921. 

Mr.  AL  R.  Bobde,  for  the  Appellant 

Messis.  G.  R.  Deo  and  T.  Y.  Dehankar, 
for  the  Respondents. 

JUDGMENT.  (July  4>  IMS.)— There  is 
no  basis  whatever  for  the  opinion  ex- 
pressed in  the  judgment  of  the  lower 
Appellate  Couit  that  s.  104  and  Art  1  of 
the  Second  Schedule  of  the  Tenancy  Act 
of  1920  apply  to  a  suit  by  a  peison 
claiming  to  be  a  tenant  only  when  it 
is  against  the  landlord  of  the  holding  he 
claims.  The  contrary  could  hardly  be  inoie 
cleaily  expressed  than  in  the  words  of  Art.  1 
of  the  Schedule.  The  learned  Judge  also 
contradicts  himself  on  this  point  in  that 
portion  of  the  judgment  in  which  he  finds 
that  the  plamtiti's  suit  is  not  barred  by  the 
rule  of  limitation  because  it  was  filed  with- 
in two  years  of  his  dispossession  by  the 
defendants. 

The  facts  are  these:  In  1911  the  defend- 
ant Budhu  transferred  in  some  way  or 
other  to  the  plaintiff  Mansaram  the  Survey 
Cumbers  in  a  village  in  the  Sambalpur 
Territory  of  which  he  was  the  holder,  and 


[92  I.  0, 19S8] 

Mansaram  lemained  in  possession  of  them 
and  paid  the  rent  i or  them  to  the  Gaontia 
till  November  1921.  In  1915  one  Ramprasad 
to  whom  Budhu  had  transferred  a  pait  or 
the  whole  ol  the  land  held  by  Mansaram 
sued  the  latter  lor  possession.  Mansaram 
pleaded  that  he  was  the  tenant,  and  the 
suit  was  dismissed.  Budhu  was  a  witness 
for  the  plaintiff  in  that  case  and,  therefore, 
had  notice  not  later  than  1915  that  Mansa- 
ram was  asserting  a  hostile  title,  even  if  he 
had  till  then  held  permissive  possession 
under  Budhu.  Mansaram  remained  in  pos- 
session as  the  tenant  recognised  by  the 
Gaontia  till  November  1921  when  he  was 
ousted  by  Budhu,  and  he  filed  the  suit  for 
possession  out  of  which  this  appeal  arises 
on  the  6th  of  July  12)23. 

It  is  the  opinion  of  the  learned  Judge  of 
the  lower  Appellate  Couit  that  the  holder 
of  a  Survey  Number  in  the  Sambalpui  Terii- 
toiyisnot  included  in  the  woid  ''tenant" 
as  used  in  Art  1  of  the  Second  Schedule 
oi  the  Tenancy  Act,  192U,  and  that  the  period 
of  limitation  foi  a  suit  by  him  to  recover 
possession  ol  a  Survey  Number  ol  which  he 
claims  to  be  the  holder  IH  12  yeais.  It 
has  been  held,  theiefoie,  that  Budhu  did  not 
lose  hiH  lights  in  the  holding  by  being  out 
ol  possession  for  more  than  two  yeaia  be- 
tween 1915  and  1921  Ibis,  ol  course, 
implies  that  the  leained  Judge  wasliulher 
ol  opinion  that  s.  35  (2)  ol  the  Tenancy 
Act,  1£98  also  did  not  apply  to  such  a  per- 
son. 

Ihis  view  of  the  matter  is  based  on  lead- 
ing the  second  Explanation  attached  to  the 
detinition-  ol  a  tenant  in  cl.  (11)  of  s.  % 
ol  the  Tenancy  Act,  1920,  which  is  the  same 
as  that  attached  to  cl.  (14)  of  e.  2  of  the 
Act  ol  1898,  as  meaning  that  the  holdei  ol  a 
Survey  Number  in  the  Sambalpur  Teiritory 
is  to  be  tieated  as  a  tenant  so  far  as  the 
Gaontia  is  concerned  but  for  no  other 
purposes  lean  see  very  little  reason  for 
such  an  interpretation  of  the  words  used 
in  the  two  Acts,  but  if  it  were  correct  it 
would  follow  that  the  holder  of  a  Survey 
Number  in  the  Sambalpur  Territory  had  all 
the  rights  and  privileges  of  the  holder  of 
one  iri  Berar  including  the  unrestricted 
right  of  transfer  and  it  is  beyond  doubt  that 
he  has  not  got  these  rights.  The  interpre- 
tation in,  therefore,  wrong  and  Budhu  had 
ceased  to  be  the  holder  of  the  Suivey 
Numbers  in  dispute  in*  this  case  long  before 
November  1921  when  he  took  forcible 
possession,  of  them 


[92  1,  0,  1926J          TRtlflTflES,  PARAKKAT  DBVA3WO*  V,  VflNlCATAOKAtAM  VAt)»AYAR, 

we  apply  the  Tenancy  Act  of  1920  or  that 
of  1898. 

The  decree  of  the  lower  Appellate  Court 
wilt  be  set  aside  and  that  of  the  first  Court 
will  be  restored.  The  Pleader's  fee  in  this 
Court  will  be  twenty  rupees. 

(July  8,  1925) — The  order  for  the  payment 
of  costs  was  accidently  omitted  from  this 
judgment  The  whole  costs  in  all  thiee 
Courts  will  be  paid  by  the  defendants. 

N.  H.  Decree  set  aside 


703 


LAHORE  HIGH   COURT. 

SECOND  CIVIL  APPEAL  No  1370  OP  1921. 

February  23, 1925 
Present  — Mr.  Justice  Abdul  Raoof  and 

Mr   Justice  Harrison 
MAHTAB  SHAH— DEFENDANT— 
APPELLANT 

versus 

ALI  HAIDAR  SHAH  AND  OTHERS   - 
RESPONDENTS 

Punjab  Courts  Act  (VI  of  /W),  s  £7  (?)  ippcal, 
szconl  Certificate  g>  anted  mi  mistaken  qnmnds,  valid- 
ity of 

Whore  a  Distiiet  Judare  grants  a-  oeitificate  under 
R  II  ( ij  of  the  Punjab  (Courts  Ar*t  \\ith  ro^nd  to  i 
qu^btion.  of  custom  foi  thj  IPISOU  that  the  appellant 
13  anyhow  appalling  0,1  th"  qn'Mtmn  of  th"  ancostial 
n  at  in  e  of  th*  land  and  thit  it  is  ad\  isable  thai  ho 
should  be  given  a  cvitilioatf1  in  older  that  IIP  might 
tgitit-1  every  question  which  has  arisen  in  the  CMS° 
md  it  is  not-Rt.ited  in  th  *  (Pitilicit^  that  the  \arious 
requirements  of 'the  section  have  KHMI  lulhlled,  the 
?ertiticale  LS  b<id  and  will  be  i&noied  bv  the  Hiyh 
(butt 

Mecond  appeal  fiom  a  decree  of  the  Dis- 
trict Judge,  Rawalpindi,  dated  the  14th 
February  1921,  reversing  that  of  the  Munsif, 
Frst  Class,  Rawalpindi,  dated  the  23rd 
October  1920 

Mr  Aziz  Ahmad  and  Ghaudhri  Zafarulla 
Khan,  for  the  Appellant 

Mr  M  L    Puri,  for  the  Resoondents 

JUDGMENT.— The  plaintiffs  in  this 
case  are  the  collaterals  m  the  third  degree 
of  one  Latif  Shah  and  they  pray  for  a 
declaration  that  a  gift  made  by  him  to  a 
very  distant  relative,  named  Mahtab  Shah, 
Rhall  not  affect  their  reversionary  rights 
The  suit  was  dismissed  by  the  Trial  Court 
but  the  appeal  to  the  District  Judge  waa 
successful  and  a  decree  has  been  given  as 
sought  for. 

On  second  appeal,  which  is  supported  by 
a  certificate,  Counsel  contends,  in  the  first 
place,  that  the  plaintiffs  have  not  proved 


the  property  in  suit  to  be  ancestral,  and,  in 
the  second,  that  the  gift  13  valid. 

We  find  that  the  second  and  main  ques- 
tion cannot  be  argued  as  we  hold  that  the 
certificate  given  by  the  District  Judge  does 
not  complv  with  the  requirements  of  s  41 
(3)  of  the  Punjab  Courts  Act  The  District 
Judge  granted  this  certificate  for  the  reason 
that  the  appellant  was  anyhow  appealing 
on  the  question  of  the  ancestral  nature  of 
the  land,  and,  therefore,  the  Judge  appeared 
to  think  it  advisable  that  he  should  be 
given  a  certificate  in  order  that  he  might 
agitate  every  question  which  had  arisen  in 
this  case  It  is  not  stated  that  the  various 
lequirements  of  the  section  have  been  ful- 
filled and,  as  the  grounds  on  which  the 
cert ificite  is  granted  are  wholly  mistaken, 
we  mnst  ignoie  it 

The  question  lemains  whether  the 
plaintiffs  have  01  have  not  established  the 
ancestral  nature  of  the  land  The  pedigree- 
table  is  to  be  found  on  page  23  of  the  judg- 
ment of  the  District  Judge  It  is  an 
admitted  f  ict  that  the  land  in  suit  was  held 
by  Sher  Muhammad,  the  common  ancestor. 
It  is  also  an  admitted  fact  that  it  was  held 
bv  his  grandson  Latif  Shah,  and  in  the  year 
1S60  by  Jaw-iya  Shah,  father  of  the  donor.  It 
13  also  admitted  by  the  defendants  that 
Litif  Shih  was  succeeded  by  his  two  daug- 
tern,  and  JuAvaya,  Shah,  therefore,  must  have 
i.ihented  from  Jus  mother  It  is  \vell 
established  law  under  these  circumstances 
that,  the  worn  in  merelv  acts  as  conduit  pipe, 
jind  th.it  the  ancestral  natuie  of  the  land 
is  not  affeete  1  by  the  fact  that  she  takes  a 
place  in  the  line  of  succession  We  agree 
with  the  learned  District  Judge  ia  finding 
that  the  phuntilTs  hive  established  beyond 
all  doubt  that  the  land  in  suit  is  ancestral, 
and  we  dismiss  the  appeal  with  costs 

z   K  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

APPBAL  AGAINST  APPELLATE  ORDER  No.  102 

OF  1923 

February  27,  1925 

Present  — Mr  Justice  Wallace 

PARAKKAT  DEVASWOM  TRUSTEES 

OF  K  P.  VEERARAOHAVAIYEU  AND 

OTHERS — APPELLANTS 

v&rsus 
VENKATAOHALAM  VADHAYAR  AND 

OTHBRS — RESPONDENTS. 
Limitation  Act  (IX  of  1908),  Sch.  I,  Art.  m  (5) 


TRUSTEES  PABAKKAT  DBV^SWOII  l>.  VENKATACHALAk  VADHATAR    [02  I,  0.  1986  J 


Step-in-aid  of  execution— Decree  against  trust- 
Appointment  of  -fresh  trustee— Execution  application 
against  trustee  on  record— Bona  fide  petition— Burden 
of  -proof —Precedents —Reported  and  unreported  deci- 
tions. 

The  removal  under  a  decree  of  a  trustee  from  office 
com^s  into  operation  not  from  the  date  of  the  decree 
but  from  the  date  on  which  the  trustee  is  removed 
from  actual  possession,  So  km  gas  he  is  not  removed 
and  remains  in  possession  of  the  property,  he  is  tho 
proper  judgment-debtor  to  be  on  record  for  purposes 
of  execution  of  a  decree  against  the  trust  [p.  711,  col. 

A  bona  fide  application  to  execute  a  decree  against 
the  judgment-debtor  on  record  is  in  accordance  with 
law  even  though  it  is  subsequently  discovered  that 
at  the  time  of  the  application  he  had  ceased  to  be 
the  proper  person  to  be  pi oceeded  against,  [ibid] 

Samia  Pillai  v  Chockalinga  Chettiar,  17  M.  76;  4 
M.  L.  J.  8;  6  Ind.  Dec,  (N  s )  52,  Balkishen  Das  v 
Bedmati  Koer,  20  C  38B;  10  Ind.  Dec  (N.  s )  263  and 
Rama$awmi  Chettiar  v  Oppilamani  Chetti,  4  Ind  Ca<* 
1059;  33  M.  6;  0  M.  L,  T  269,  19  M.  L.  J.  671,  relied 
on 

The  burden  of  proving  that  the  judgment-debtor 
named  in  the  decree  has  ceased  to  be  the  icai  judg- 
ment-debtor for  purposes  of  execution  and  that  the 
application  impleading  the  person  on  record  13  not 
bona  fide  is  on  the  person  who  sets  up  that  such 
application  is  not  in  accordance  with  law.  [p.  711,  col. 
2] 

In  the  case  of  a  conflict  between  a  reported  and  an 
unreported  decision,  the  proper  course  is  to  follow  the 
reported  decision,  [p.  71  J,  col  1  ] 

Appeal  against  an  order  of  the  District 
Court,  Houth  Malabar,  in  A.  S.  No.  523 
of  1922,  preferred  against  that  of  the  Sub- 
ordinate Judge,  Ottapalam,  in  Execution 
Petition  No.  1*3  of  1922. 

Mr.  K.  Kuttikrishna  Menon,  for  the 
Appellants. 

Messrs.  N.  A.  Krishna  Iyer  and  T.  S. 
Anantharaman,  for  the  Respondents. 

JUDGMENT.— The  question  in  this 
appeal  is  whether  the  execution  petition 
is  barred  by  time.  The  decree  sought  to 
be  executed  is  the  final  decree  in  0.  S. 
No.  36  of  191  .J  on  a  hypothecation  bond 
executed  by  certain  persons.  The  bond  was 
executed  by  them,  as  trustees  or  owners  of 
a  certain  Deyaswom.  At  the  time  that 
suit  was  pending  another  suit,  0.  S.  No.  12 
of  1912,  to  declare  that  the  trust  was  a 
public  trust  and  to  remove  the  above  per- 
sons was  going  on.  On  iJth  July  1914 
a  decree  to  remove  them  was  passed.  The 
final  decree  in  0.  8.  No.  36  of  1912,  the  hy- 
pothecation decree  against  the  property  was 
passed  on  30th  September  1914.  Three 
execution  petitions  were  put  in  to  execute 
this  final  decree.  The  first  was  put  in  on 
20th  July  1915  and  was  dismissed,  because 
batta  was  not  paid.  The  second  was  put 
in  on  26th  June  1918  and  was  rejected  for 


the  same  reason.  The  third  was  put  in  on 
20th  June  1921  and  is  the  execution  petition 
now  under  appeal. 

The  appellants  are  the  present  trustees 
who  were  put  into  office  in  the  place  of  the 
original  judgment  debtors  by  force  of  the 
decree  in  0  8.  No.  12  of  1912  at    sometime 
which  is    not    known.    They  contend  in 
limine  that  the  decree  in  0.   S    No.  36  of 
1912  now  under  execution   was  not  against 
the   trust    property  at  all;   but  I  am  not 
prepared  to  accept  this  contention,  for  the 
decree   clearly     is    in    the  first    instance, 
against  the  trust  property.    It   is   further 
contended  that  the    decree  is  a  nullity,  it 
being  pointed  out  that  the  decree  remov- 
ing the  original  trustees  was  passed  some 
two  months  before  the  final  decree  against 
them.    But  it  is  clear  that  this  contention 
cannot  arise  unless  the  respondents  show 
that  the  judgment- debtors  in  O.  S.  No.  36 
of  1912  had  been,  as  a  matter  of  fact,  re- 
moved,   in  consequence    of    the  decree  in 
0.  8.   No   12  of  1912,  sometime  prior  to  the 
final  decree  in  O.  8.  No.  36  of  1912  and  that 
some   other  trustees  or  Receiver  had  been 
appointed  in  their  place  who  could  have  been 
brought    on  the  record  as  the  legal  repre- 
sentatives of  the   original  trustees    before 
the  final  decree  was  passed.    This    fact  the 
appellants  have  not  attempted    to    show. 
It  is    a  question   of  fact    which    ought  to 
have  been  heard  and  decided  by    the  first 
Court ;  and  in  the  absence  of  any  evidence 
to  prove  that  fact  it  cannot  be  reasonably 
contended  that  the  decree  in  O.  8.  No.  36  of 
1912  is  a  nullity. 

The  next  contention  is  based  on  veiy 
rnuch  the  same  argument.  Appellants  con- 
tend that  the  execution  petition  dated  20th 
July  1915  was  not  in  accordance  with  law, 
because  the  proper  judgment  debtors  were 
not  on  record  in  that  petition,  as  that 
petition  was  put  in  against  the  judgment- 
debtors  named  in  the  decree  a  year  or  so 
after  the  decree  for  their  removal  had  been 
passed.  It  is  said  that  aReceiver  was  appoin- 
ted in  0  8  No.  12  of  1912  on  16th  Feb- 
ruary 1915  some  five  months  before  the  date 
of  the  first  execution  petition;  but  again, 
the  appellants  have  not  attempted  to  show 
that  this  Receiver  took  charge  or  that  the 
trustees,  who  were  the  original  judgment- 
debtors,  were  actually  ousted  by  him  from 
the  property  prior  to  the  date  of  this  first 
execution  petition. 

The  lower  Appellate    Court  accepts  the 
view  that    the  original   judgment-debtor* 


0,  1928]  PAJUKKAT  DBVASWOM  V.  VltfKATAOHALAM  VAD1AYAIL 


711 


were  not  the  proper  party  respondents  to  the 
execution  petition  because  they  had  been  dis- 
missed by  the  decree  in  0.  8  No    12ofl(U2 
on  9bh  July  1912  but  it  nevertheless  held 
that  the  execution   petition  was  in  accord- 
ance with  la w.I  do  not  agree  with  the  lower 
Appellate  Court  in  its  view  that    the  re- 
moval of  the  original  trustees  came    into 
operation  from  the  date  of   the  decree  and 
not  from  the    date,  whatever  date  it   be, 
on  which  the  trustees  were  removed  from 
actual  possession     So  long  as    they  were 
not  removed  and  they  remained  in  control 
of  the  property  cannot  be    contended   that 
they  were  not  the  proper  judgment  debtors 
to  be  on  record  in  the  execution  petition. 
Suppose  for  example  that  no  Receiver  or  new 
trustee  was  appointed    for    some  months 
after   the  passing  of  the  decree  in    0    S 
No.  12  of  1912.    It  could  not  be  held  that 
there  was  no  judgment-debtor  at  all  asjainst 
whom  any  execution    petition    could    be 
brought   during  that  period     The  crucial 
date  on  which  the  trustees  cease  to  be  actual 
j  udgment-debtors  is  that  on  which  they  were 
ousted  from  the  control  of  the  trust  pro- 
perty.   What  that  date  is  do*s  not  appear. 
It  is  clear  that  the  duty  of  the    appellants 
was  to  establish  that    date  and  they  have 
not  chosen   to  do  so.     It  cannot,  therefore, 
be  concluded  that  on  the  date  of  the  execu- 
tion  petition  of  1^15  the  original  trustees 
were    not    the     proper    judgment-debtors. 
Tasrefora  there  is  no  proof  that  this  execu- 
tion petition  was  not    against  the    proper 
judgment-debtors. 

E\ren  if  it  were  against  the  wronsr  judg- 
ment debtors  it  would  not  be  invalid  as  a 
step-in-aid  so  long  as  the  executing  decree- 
holder  bona  firle  believed  that  they  were 
still  the  proper  judgment-debtors.  Accord- 
ing to  law,  so  far  as  laid  down  in  this 
Presidency,  a  bona  fide  application  to 
execute  a  decree  against  a  particular 
judgment-debtor  is  in  accordance  with 
law  even  though  it  is  subsequently  dis- 
covered that  the  judgment-debtor  was 
deai  at  the  time  of  the  application;  see 
S&mia  Pdlw  v.  CtivckzhrijT  Chtttiar  f\). 
An  unreported  case  of  this  Court,  0  M  A 
No.  185  of  1902,  has  been  brought  to  my 
notice  which  Ukesan  opposite  view  but 
in  such  cases  the  proper  course  is  to  fol- 
low the  reported  decision.  The  sams  prin- 
ciple has  been  laid  down  in  Balkishpn 
Das  v,  Bedamati  Koer  (2)  where  it  was  held 

(1)  17  M  76,  4  M  L  J  8,  6  lad  Dao.  (N.  a)  52. 

(2)  20  0.  388  at  p.  393;  10  lad,  Deo.  (w,  s.)  263* 


that  an  application  made  against  persons 
who  were  not  the  legal  reprasentativesof  the 
deceased  judgment  debtor  Wc\s  valid  if  the 
decree-holder  bona  fide  believed  that  they 
were  the  legal  representatives  see  also 
Kamavawmi  Ckettiar  v  Oppilamani  Chetti 
(3)  The  High  Court  of  Allahabad  takes  a 
different  view  which  this  High  Court  so 
far  has  not  accepted  see  Jnanendra  Nath 
Biiu  v  Nihalo  Ribi  (4);  but  compare  this 
with  Mahomzd  Husszin  v.  Enyat  Hussain 

(5) 

Now    as  the  application  of  1915  was  put 
in  against   the  judgment-debtors  named  in 
the    decree  the  Executing     Court  in  the 
absence  of  evidence  to  the  contrary  could 
not  but  decide  that  the   execution  petition 
was  in  accordance  with  law.   It      is  not  its 
business  to  go  outside  the  decree  and  enquire 
whether  the  j  udgment-debtors  named  in  that 
decree  were   still    the    proper    judgment- 
debtors  in  1915  Th^  presumption  is  that  the 
execution  petition   was  in  accordance  with 
law,  and  it  was  admitted    as  such  by   the 
Court  and  notice  issued  therein  The  parties 
who  now  wish  to  contend   that  it  was  not, 
were  bound  to  prove  it,  and  for  that  purpose 
thev  must  first  establish    that   the  judg- 
ment-debtors named  in  the    decree  were  no 
longer  the  real    judgment  debtors     That, 
a^  noted,   they  have  not  attempted  to  do. 
Unless  and  until  they  proved   that  fact,  it 
wasnot  the  business  of  the  decree-holders  to 
prove  that  they  nevertheless  bona  fide  be- 
lieved  that  the  ju  Igwent-debtors  named  in 
the  decree  vrere    still  really  the    judgment- 
debtors.     It,   is  not,  therefore,  open   to    the 
appellants  who  have,  not  established  the  fact 
necessary  to  throw  on  the  decree-holders  the 
onus  of:  proving   their  bona  fides,  to  put  for- 
ward now  any  contention  that  the  execution 
petition  of  1915  was  not  bona  fide 

A  further  c  ontention  has  been  put  forward 
that  the  decree  under  execution  was  a 
fraudulent  decree  come  to  by  collusion  be- 
tween the  mortgagee  and  the  original  trustees. 
But,  obviously  that  objection  cannot  be 
taken  in  execution.  The  real  judgment- 
debtor  is  the  trust;  and  the  representatives 
of  the  trust  cannot  attack  it  in  execution 
proceedings.  If  thev  want  to  set  aside  the 
decree  they  must  institute  appropriate  pro- 
ceedings 
I  am,  therefore,  of  the  opinion  that;  the 

(3)  4  Ind.  Cas,  1039,  33  M  6,  6  M  L    T.  269;  19  M. 
L  J.671 

(4)  G  Ind  Oa9  33.  32  A  401,  7  A   L  J  512 

i  24  Ind.  Oa«,  473;  35  A  482, 12  A  L  J.-630. 


(« 
(5) 


712 


RAOHTWATH  DAS-BAM  SARUP  v.  SULZER  BRUDBRBR  &  c<x       [02 1.  0. 1926] 


order  of  the  District  Judge  is  right  and 
dismiss  this  appeal  with  costs  of  respondents 
Nos.  1  and  2. 


V.    N.   V. 

N.   H. 


Appeal  dismissed. 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No  2586  OF  1922. 

December  2,  1925. 
Present: — Mr.  Justice  Zafar  Ah  and 

Mr,  Justice  Addison. 
MESSRS  RAOHUNATH  DAS  RAM 
SARUP — DEFENDANT— APPELLANT 

versus 

MESSRS.  HULZBR  BRUDKRER  AND  Co  ,— 
PLAINTIFF — RESPONDENT. 

Arbitration  -  Award,  suit  to  enforce  Contract  con- 
taining arbitration  clause,  validity  of,  whether  can 
be  questioned— Procedure— Piecemeal  trial  of  suit, 
un desirability  of 

In  answoi  to  a  suit  to  enforce  an  a  \vaid,  made  on 
a  reference  in  pursuance  of  an  aibitration  clause  con- 
tamed  in  a  contract  alleged  to  have  been  enteied  into 
between  the  parties,  it  is  open  to  the  defendant  to 
plead  that  there  was  no  completed  contiact  between 
the  part  IBB  and  that  consequently  the  aibitration 
clause  could  not  come  into  operation  This  objection 
goes  to  the  root  of  the  whole  mattci  and  must  be 
detei  mined  alon?  with  any  other  issues  in  the  suit 
fp  713,  col.  1  ] 

The  practice  of  trying  an  important  case  piecemeal 
tends  to  lead  to  protiacted  litigation  and  seiious  in- 
convenience and  to  involve  the  parties  in  ha,avy  costs 
if  the  case  is  taken  repeatedly  on  appeal  to  a  superior 
tribunal,  [p,  714,  col  21 

First  appeal  from  a  decree  of  the  Senior 
Sub-Judge,  Delhi,  dated  the  18th  Julv  1922. 

Bakhshi  Tek  Chand  and  Laid  Kalian, 
Chand  for  the  Appellant. 

Mr.  Prem  Lai,  and  Lai  a  Ram  Kibhore, 
for  the  Respondent, 

JUDGMENT.— The  plaintiff  sued  the 
defendant  on  the  allegations  that  the  de- 
fendant on  the  8th  January  1920  placed  an 
indent  with  him  for  5  cases  of  grey  merino 
on  certain  terms,  that  the  indent  was  duly 
acceptedby  the  plain  tiff  within  the  prescribed 
period  of  sixty  days;  that  the  goods  were 
shipped  by  the  plaintiff ;  but  that  the  defend- 
ants raised  frivolous  objections  which  were 
referred  by  the  two  parties  to  arbitrators 
who  disagreed  and  that  thereupon  they  were 
duly  referred  to  an  umpire  who  gave  an  ex 
parLe  award  in  the  plaintiff's  favour.  This 
award  was  to  the  effect  that  the  defendant 
should  take  up  and  pay  for  the  goods.  It 
\vasallegedthat  the  sum  payable  on  this 
award,  though  it  was  not  actually  fixed 


was  Rs.  36;925-15-9  and  this  with  future  in- 
terest was  claimed  on  its  basis.  In  the 
alternative  it  was  claimed  that  this  sum 
was  due  for  the  price  of  the  goods  apart 
from  the  award. 

The  defendant  admitted  the  indent  but 
denied  that  it  had  been  accepted  within  the 
period  prescribed.  There  was  thus  no  com- 
pleted contract.  The  submission  to  the  two 
arbitrators  was  admitted  but  the  appoint- 
ment and  proceedings  of  the  umpire  were 
alleged  to  be  illegal,  so  that  the  award  was 
invalid.  The  other  pleas  do  not  require 
mention  at  present  except  that  plaintiff's 
Counsel  replied  that  the  indent  had  been 
accepted  within  the  prescribed  period  and 
that  in  any  case  the  defendant  had  accepted 
his  client's  acceptance  as  due  acceptance. 
These  allegations  were  denied  by  de- 
fendant's Counsel  and  the  Court  proceeded 
to  frame  the  following  issues* — 

(1)  Was  an  umpire   vahdly    appointed 
and  did  lire  give  an  award  ? 

(2)  If  so,  is  it  invalid  and  not  binding  on 
the  defendants? 

(3)  To  what  amount  is  plaintiff  entitled 
under  the  award  ? 

(4)  Was  there   a  completed  contract  be- 
tween the  parties? 

(5)  Is  defendant  estopped    from  impugn- 
ing the  contract? 

(fi)  Was  plaintiff  ready  and  willing  to 
perform  his  part  of  the  contract?  Did  de- 
fendant break  it?  If  so,  how  and  when  v 

(7)  Was  defendant  excused  from    accept- 
ing the  goods  under    the  circumstances  of 
the  case? 

(8)  Had  the  property  in  the  goods  passed 
to  the  defendant  ? 

(9)  If  so,  does  not  a  suit  lie  for  the  price  of 
the  goods  as  framed  ? 

Later  it  added  the  following  two  issues; — 

(IU)  What  goods  and  under  what  circum- 
stances have  bean  parted  with  ?  What  is  the 
effect  thereof  on  plaintiff's  claim? 

(11)  To  what  amount  for  price,  charges 
and  interest  are  plaintiffs  entitled  and  at 
what  rate  of  exchange  ? 

When  the  first  nine  issues  were  struck  the 
Court  ordered  the  parties  to  produce  theirevi- 
dence  on  the  first  three  issues  only,  though 
later  evidence  was  also  allowed  on  Issues 
Nos.  '10)  and  (11]  as  being  supplementary 
to  the  fiist  three  issues.  It  would  seem  that 
this  order  was  verbally  objected  to  when  it 
was  made;  while  before  evidence  was  com- 
menced, defendant's  Counsel  again  tried  to 
get  the  order  changed  to  allow  of  evidence 


,  0,  1928]         RAaHtJNATH  DAS-RAM  SARUP  V  HPLZEtt  BRUDBR&n  &  CO, 


7J3 


being  given  on  all  the  issues.  He  was  over- 
ruled and  he  then  put  in  a  written  appli- 
cation to  the  same  effect.  This  also  was 
refused.  The  Court  then  proceeded  to  j  udg- 
ment  on  the  issues  mentioned  and  holding 
that  the  award  was  valid,  found  that 
Rs.  32,683  2  6  weie  due  on  it.  A  decree  for 
that  sum  with  future  interest  at  9  per  cent, 
per  annum  was  given  to  the  plaintiff  with  a 
lien  on  the  goods.  Against  this  decision 
the  defendant  has  filed  this  appeal 

It  was  argued  by  the  learned  Counsel  for 
the  appellant  that  Issues  Nos  (I)  and  (5)  went 
to  the  very  root  of  the  matter  as  they  involv- 
ed the  question  of  the  jurisdiction  of  the 
arbitiatois  and  that  it  was,  theiefore,  illegal 
to  shut  out  all  evidence  on  these  two  issues 
and  to  decide  the  suit  only  on  issues  Nos  (J) 
to  (3).  The  Trial  Couit  itself  seems  to  have 
felt  this  difficulty,  foj,  though  it  confined  the 
case  to  issues  Nos  (1)  and  (3),  it  entered  into 
a  discussion  of  issues  Nos  (4)  and  (5)  in  its 
judgment  at  pages  73  and  71  of  the  paper 
book.  It  said  there  that  the  indent,  which 
contained  an  agreement  to  refer  disputes  to 
arbitration,  was  admitted  It  did  not  add 
that  the  acceptance  of  that  indent  by  the 
plamtiff-iespondent  which  uas  necessary  lo 
make  it  a  complete  contiact  was  denied.  It 
then  went  on  to  say  that  in  the  correspond- 
ence not  a  word  was  said  as  to  the  con- 
tract not  having  been  completed,  although 
both  sides  appointed  arbitrators*  This  WHS 
a  discussion  of  issues  Nos  (4)  and  (5),  evi- 
dence as  to  which  had  been  excluded 

In  Sasojn  c6  Co  ,  v.  RamrtuU  Ramkissen 
Das  (1)  their  Lordships  of  the  Pi  ivy  Council 
held  that  a  suit  was  maintainable  to  contest 
an  award  when  the  objection  v*as  the  want 
of  jurisdiction  in  the  arbitrator.  In  Firm 
Jainaram-Babu  Lai  v.  Firm  Narain  Das- 
JamiMal  (2)  it  was  held  at  pages  305*- 
306*  that  the  question  of  I  he  factitm  or  the 
validity  of  the  contract  was  not  within  the 
cognizance  of  the  arbitrators,  and  that  the 
arbitration  clause  assumed  that  there  was 
a  valid  and  binding  contract  between  the 
parties,  that  is,  that  the  arbitration  clause, 
which  is  part  of  the  contract,  falls  if  the 
contract  falls.  It  was  sought  to  distinguish 
these  authorities  on  the  ground  that  in 
them  the  arbitration  had  been  ex  parte 

(1)  70  Ind  Gas  777,  50  G    1,  A.  I   K     1022  P    C 
374,  37  0  L    J   336,  44  M    L  J  758,  27  G    W.  N  660, 
(1923;    M.  W.    N.  372,    18    L  W    537,  49    I   A.    366 
(P.  0 ). 

(2)  69  Ind    Gas  585,  3  L.  296,  A.    I    K.  1922  Lah 
360  

*Page  of  3  L,— [Ed J 


throughout.  But  in  the  present  case  the 
effect  of  their  having  been  a  submission 
to  ai  bitration  is  clearly  included  in  issue 
No  (5),  which  should,  therefore,  have  been 
decided  after  recording  evidences,  and 
after  issue  No  (4)  had  been  decided 

In  Tayabally  Abdul  Hussaiu  v  James 
F inlay  &  Co  (6)  the  Sirid  Judicial  Comniis- 
bioners  also  held  that  a  paity  dissatisfied 
with  a  private  award  could  contest  it,  when 
it  was  sought  to  enforce  it  under  the  Indian 
Arbitration  Act,  by  taking  such  objection* 
as  that  Act  allowed  but  that  that  lemedy 
was  not  his  sole  lemedy,  lie  could  also 
bring  a  suit,  theieafter,  to  set  aside  the 
award  on  the  ground  that  no  contract,  pio- 
vidinq;  for  a  reference  to  arbitration  Mas 
made  or  that  it  if  made,  was  not  enforceable 
by  reason  of  fraud  or  misrepresentation 
R'idha  Kisen  Khetry  v  Lukhrrn  Chand 
Jhawar  (1)  (especially  at  page  548)  is  also 
in  point, 

lu  the  ease  of  above  authorities  the  suit 
was  brought  by  the  party  objecting  to  the 
award,  but  that  cleaily  makes  no  diffeieuce. 
In  the  present  case,  the  umpire's  er  parte 
award  was  simply  to  the  effect  that  the 
buyers  should  take  up  and  pay  foi  the 
goods.  It  was  useless  to  file  such  an  award 
in  Court  under  the  Indian  Arbitration  Act 
a<3  no  sum  was  hxed  in  it  as  due  and  certain 
calculations  had,  therefore,  to  be  made 
and  rates  of  exchange  ascertained  The 
plaintiff,  therefore,  came  into  the  regular 
Courts  on  the  umpires1  award  In  the^e 
circumstances  it  was  within  the  defendants1 
rights  to  attack  the  award  on  all  possible 
grounds. 

It  was  urged,  however,  by  the  learned 
Counsel  for  the  plaintiff-respondent  that  his 
plaint  proceeded  on  two  causes  of  action, 
paras  (4)  to  (7)  disclosingthe  cause  of  action 
on  the  award,  and  the  other  paras  dealing 
with  the  claim  independently  of  the  award  , 
that  defendants'  plea  as  to  there  being  no 
completed  contract  referied  to  the  second 
part  of  the  claim  which  arose  only  if  the 
award  was  set  aside;  and  that  the  initial 
submission  to  arbitration  was  admitted 
and  that  all  that  was  pleaded  as  regards  the 
claim  on  the  award  was  that  the  arbitration 
proceedings  were  invalid  on  various 
grounds  This  argument,  though  ingenu- 
ous, cannot  be  accepted  It  was  in  paia  (2) 

(3)  80  Ind  Caa  959,  17  S  T,  R  15(  A  I  R  1924 
Hind  105 

(4)  56  Ind  Oas,  511  at  p.  548,  31  0.  U  J  283;  24  0. 
W.  N.  454. 


fru 


of  the  plaint  that  it  was 
indent  had  been  accepted,  by  the  plaintiff 
within  the  prescribed  period  of  60  days. 
This  was  prior  to  any  mention  of  an  award. 
Similarly  in  para.  (2)  of  the  pleas  the  defend- 
ant at  once  denied  that  there  was  a  com- 
pleted contract  as  the  indent  had  not  been 
accepted  within  60  days.  The  order  of  the 
pleas  had  to  follow  the  plaint.  Later,  in 
replying  to  the  paras,  of  the  plaint  dealing 
with  the  award  it  was  admitted  that  two 
arbitrators,  who  disagreed,  were  appointed 
while  it  was  added  that  the  appointment  of 
the  umpire  was  invalid.  Then  in  the 
further  pleas,  it  was  again  denied  that  there 
was  a  completed  contract.  It  is  true  that 
it  might  have  been  added  for  the  sake  of 
clearness  that  there  could  be  no  valid  sub- 
mission to  arbitration  as  there  was  no  com- 
pleted contract,  but  the  meaning  was  clear 
enough,  namel}T,  that,  as  there  was  no  com- 
pleted contract,  the  whole  suit  went. 

This  becomes  even  clearer  when  the  state- 
ments of  Counsel  before  issues  are  examin- 
ed. Plaintiff's  Counsel  stated  that  the 
indent  was  accepted  two  days  before  the 
prescribed  period  ended  and  that  in  any 
case  the  defendant  accepted  plaintiff1  saecept- 
ance  as  due  acceptance.  Both  these  allega- 
tions were  denied  by  the  opposing  Counsel. 
Issues  Nbs.  (4)  and  (5)  embody  this  part  of 
the  case  and  the  whole  suit  depends  on  the 
findings  on  these  issues  and  the  legal  effect 
thereof.  The  fact  that  there  was  a  sub- 
mission to  arbitration  may  be  evidence  on 
this  part  of  the  case,  but  in  the  absence 
of  other  evidence  it  is  impossible  to  decide 
these  issues.  No  question  arises  as  to  the 
defendant  having  accepted  the  order  of  the 
Trial  Court  confining  the  trial  to  the  three 
first  issues.  It  is  clear  from  the  Court's 
order,  dated  the  20th  April  1922,  that  this 
objection  was  probably  taken  at  the  very 
time  the  order  was  passed  and  that  defend- 
ant certainly  objected  before  any  evidence 
was  recorded,  and  finally  put  in  a  regular 
petition  when  his  objections  were  not 
heeded. 

It  follows  that  the  Trial  Court  has  errone- 
ously decided  the  first  three  issues  as  being 
preliminary  issues,  the  decisions  of  which 
were  sufficient  for  the  disposal  of  the  case, 
whereas  issues  Nos.  (4)  and  (5)  may  go  to  the 
root  of  the  case.  We,  therefore,  accept  the 
appeal  and  setting  aside  the  decree  of  the 
Trial  Court,  remand  the  suit  under  0.  XLI, 
r.  2J»  C.  Pt  U.t  for  decision  according  to  law; 


TAfillldNU  OitoUDHURiHI  0.  SHBIKH  EtTM.  [95  I.  0.  1926} 

stated  that  the     The  Court- fee  on  appeal  will  be  refunded, 


Other  costs  will  be  costs  in  the  cause. 

In  conclusion  we  would  refer  to  Yatindra 
Nath  Chaudfiury  v.  Hari  CharanChaudhuri 
(5)  where  the  practice  of  trying  an  import- 
ant case  piecemeal  was  deprecated  as  tending 
to  lead  to  protracted  litigation  and  serious 
inconvenience  and  to  involve  the  parties  in 
heavy  costs  if  the  case  is  taken  repeatedly 
on  appeal  to  a  superior  tribunal. 

z.  K.  Appeal  accepted. 

(5)  26  Ind.  Gas.  954;  20  C,  L.  J.  426. 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE  No.  2253 

OP  1922 
July  28, 1925. 

Present:— Mr.  Justice  Chakravarti. 
TARAMONEE  CHOUDHURANI  AND 

OTHERS — PLAINTIFF3 — APPELLANTS 

versus 

SHEIK  ELIM  AND  OTHERS— DEPENDANTS 
— RESPONDENTS. 

Bengal  Tenancy  Act  (VIII  of  18S5)t  8  105— Settle- 
ment of  rent — Suit  to  recover  rent  at  rate  settled— Plea 
of  denial  of  settlement  proceedings —Fraud,  plea  o/, 
absence  of — Notice,  service  of}  whether  can  be  enquired 
into 

In  answer  to  a  suit  to  recover  rent  at  the  rate 
settled  in  proceedings  under  s.  1Q5  of  the  Bengal 
Tenancy  Act,  defendant  denied  that  there  was  any 
such  proceedings  and  stated  that  if  any  order  under 
B  .105  had  been  obtained  it  was  not  binding  upon 
him  There  was  no  plea  of  fraud  and  no  issue  was 
raised  in  the  suit  as  to  the  validity  or  otherwise  of 
the  proceedings  under  s  105 

Held,  (1)  that  in  the  absence  of  a  plea  of  fraud  it 
was  not  open  to  the  Court  to  try  the  question  as  to 
whether  there  was  any  service  of  notice  on  the 
defendant  or  not  in  the  proceedings  under  s  105  of  the 
Bengal  Tenancy  Act , 

(2)  that  if  the  defendant  wished  to  challenge  the 
proceedings  nnder  s.  105  on  the  ground  of  non-service 
of  notice,  he  ought  to  have  questioned  the  proceedings 
before  the  Settlement  Officer,  or  by  way  of  proceedings 
appropriate  for  such  relief  or  by  appeal,  and  that  it 
was  not  open  to  him  to  do  so  in  answer  to  the  present 
suit. 

Appeal  against  a  decree  of  the  Sub- 
ordinate Judge,  Fourth  Court,  Mymensingh, 
dated  the  31st  July  1922,  reversing  that  of 
the  Munsif,  Third  Court,  Mymensingh, 
dated  the  9th  January  1922. 

Babus  Gobinda  Chandra  DC  Roy  and 
Jatindra  Nath  Sanyal.  for  the  Appellants, 

JUDGMENT.— The  suit  out  of  which 
this  second  appeal  by  the  plaintiffs  arises 
was  for  recovery  of  rent.  The  plaintiffs 
claimed  rent  at  the  rate  of  Rs;  13  4  per 


1.  0.  IQtOJ 


MAYAPPA  fcMBTTIAR  V,  KOLANDA1VBLU  OHBTTIAB, 


annum  as  was  settled  in  proceedings  under 
s.  105  of  the  Bengal  Tenancy  Act.  The 
defence  of  the  defendants  was  that  the  rent 
payable  was  at  the  rate  of  Rs  4-13  a  year 
They  denied  that  there  was  any  proceeding 
under  s,  105  of  the  Bengal  Tenancy  Act 
and  also  stated  that  if  any  order  under  P. 
105  was  obtained  in  secret  it  was  not  bind- 
ing upon  them. 

The  only  issue  raided  in  the  case  was 
"Can  the  plaintiffs  recover  rent  at  the  rate 
of  Rs,  13-4".  No  issue  was  raised  as  to  the 
validity  or  otherwise  of  the  proceedings 
under  s.  105  at  all. 

The  Court  of  first  Instance  found  that 
there  was  no  fraud  as  regards  the  proceed- 
ings under  s.  105  and  held  that  the  defend- 
ant was  bound  by  the  order  under  s  105 
which  showed  that  the  rent  settled  was 
Rs  13-4  per  annum  The  first  Court  further 
found  that  the  defendants  produced  no 
dakhilas  to  show  that  the  rent  was  paid  at 
the  rate  of  Rs  4-13  as  alleged  by  them  The 
Trial  Court,  therefore,  gave  a  decree  to  the 
plaintiff  for  the  rent  claimed  at  the  rate  of 
Rs.  13-1  per  annum  On  appeal  by  the  de- 
fendant No.  1  the  learned  Subordinate 
Judge  reversed  the  decree  of  the  Munsif  and 
gave  a  decree  for  rent  at  the  rate  of  Rs  4  13. 

The  learned  Vakil  who  appears  for  the 
plaintiffs-appellants  has  contended  before 
me  that  the  judgment  of  the  learned  Sub- 
ordinate Judge  was  erroneous  because  the 
Court  had  made  a  new  case  for  the  defend- 
ants upon  which  no  issue  was  raised  Next 
he  contended  that  a  mere  finding  on  the 
denial  of  the  defendants  that  no  notice  was 
served  does  not  affect  the  validity  of  the 
order  under  s.  105  and  lastly  it  was  con- 
tended that  the  lower  Appellate  Court 
was  in  error  in  enquiiing  as  to  whether  the 
order  under  s,  105  was  passed  upon  suffici- 
ent evidence. 

It  is  to  be  regreted  that  the  respondents 
did  not  appear  before  me. 

It  appears  to  me  that  the  judgment  of 
the  learned  Subordinate  Judge  cannot  be 
maintained.  As  I  have  already  stated  no 
issue  was  raised  by  the  defendants  on  the 
question  of  validity  or  otherwise  of  the 
order  under  s.  105.  The  Court  of  first  in* 
stance  found  that  there  was  no  fraud  in  the 
proceedings.  The  lower  Appellate  Court 
on  the  denial  of  the  defendants,  that  there 
was  any  proceedings  under  s.  105  held  that 
that  was  enough  to  show  that  the  proceed- 
ings under  s.  105  were  not  binding  upon 
the  defendants.  la  the  absence  of  any 


fraud  which  was  not  even  alleged  in  the 
written  statement  or  taken  in  the  grounds 
of  appeal  before  the  lower  Appellate  Court 
and  not  found  by  that  Court  it  was  not 
open  to  the  learned  Subordinate  Judge  to 
try  the  question  as  to  whether  there  was  any 
service  of  notice  or  not  in  Che  proceedings 
under  s  105.  The  learned  Subordinate 
Judge  does  not  deal  with  any  evidence  as 
to  non-  service  of  notice  in  the  proceedings 
under  s  105.  All  that  he  found  is  upon 
the  denial  of  the  defendants  that  there  was 
any  service.  If  the  defendants  wished  to 
challenge  the  proceedings  under  s  105  on 
the  ground  of  non-service  of  notice  it  was 
not  open  to  them  to  do  so  in  the  present 
proceedings.  They  ought  to  have,  if  they 
chose,  questioned  the  proceedings  before 
the  Settlement?Officer  or  by  way  of  proceed- 
ings appropriate  for  such  reliefer  by  appeal. 
A  decree  relied  upon  by  a  party  can  be 
challenged  on  the  ground  of  fraud  or  want 
of  jurisdiction.  No  question  of  want  of 
jurisdiction  arises  here,  and  as  theie  was 
no  issue  as  to  the  proceedings  under  s.  105 
being  vitiated  by  fraud  and  there  was  no 
finding  that  there  had  been  any  fraud 
sufficient  in  law  to  take  axvay  the  force  of 
the  order  made  under  s  105,  1  think,  there- 
fore, the  leained  Subordinate  Judge,  upon 
the  findings  arrived  at,  was  not  justified  in 
not  giving  legal  effect  to  the  order  under 
s  105  and  that  effect  was  that  as  between 
the  plaintiffs  and  the  defendants  Rs  13  4  was 
settled  as  the  rent  payable  by  the  defendants 
to  the  plaintiffs. 

I  think  the  learned  Subordinate  Judge 
was  not  justified  in  interfering  with  the 
judgment  of  the  Court  of  first  instance,  I, 
therefore,  set  aside  the  decree  made  by  the 
learned  Subordinate  Judge  and  restore  that 
of  the  first  Court  with  costs  in  all  Courts. 

z  K.  Appeal  allowed. 


MADRAS  HIGH  COURT, 

CIVIL  REVISION  PETITION  No  707 

OP  1J)24. 

March  26,  1925. 
Present:  —  Mr.  Justice  Kumaraswami 

Sastri. 

A.  V.  K  MAYAPPA  CHETTIAR- 
PL  \i\rivp  —  PETITIONED 


N   K  L.   KOLANDAIVELUCHET- 

TIAR  AND  ANOTHBU—  DEFENDANTS  Nos.  1 

AND  2  —  RsspONDaNTs. 
Jfoluf  Act  (i   of   1877),  99.    18(b)t  27  (a) 


71(5 


CflBTTIAR  V.  KOtANDAIVBMT  CHBTTUR, 


I.  &  1929] 


-Transfer  of  Property  Act  (IV  of  1882)  <  s.  83—  Suit 
for  specific  performance—  Contract  to  sell—  Vendor 
impeaching  mortgage  by  predecessor-in-title  -Mortgagee, 
whether  proper  party—  Vendee,  whether  entitled  to 
deposit  mortgage-money  in  Court-  -Indemnity  bond, 
suit  on—  Actual  damage,  whether  necessary 

The  geneial  nile  is  that  111  a  Hint  for  the  speciiic  per- 
formance of  a  contract  to  sell,  poisons  who  do  not 
claim  undei  the  patties  to  the  contract  and  are 
strangers  to  it  or  persons  claiming  adversely  to  both 
the  parties,  ought  not  to  be  made  parties  [p.  718,  col 

'  A  porson  setting  up  a  mortgage  in  his  favour 
exosuted  by  tin  prcdecsssor-m-title  of  a  vendor,  who 
impeaches  it  as  being  a  sham  transaction  and  with- 
out consideration,  is,  however,  a  prison  whose  title 
could  be  displaced  by  the  vendoi  and  against  whom, 
therefoie,  the  contract  to  sell  could  under  s  27  (c)  of 
the  Specific  Relief  Act  be  speciiically  enforced  In 
such  a  case  the  just  and  proper  com  so  would  be,  to 
implead  also  as  party  to  the  suit  the  person  who  claims 
to  be  amoitgagee  and  to  adjudicate  on  all  tho  ques- 
tions in  the  suit  itself  so  as  to  enable  the  purchaser  to 
be  free  fioin  all  future  ink  and  liability  [ibid  } 

liuoata  Appala  Naidu  v.  Chenqalvala  Joyiraju,  32 
Ind  Oas  237,  (UJ16)  1  M  VV.  N  77,  Kanyawa  Keddi  v. 
Subramanva  Aiyar.  '10  Ind  Oas  429  40  M  355,  32  M 
L  I  575  51^  W  707,  21  M  L  T  3b5  imd  Ahmedbhai 
v  Dinihaw,  12  Ind  Cas  813,  13  Bom  L  R  1061,  le- 
ferrcd  to 

A  prrson  who  has  merely  obtained  in  his  favour 
an  agreement  to  sell  property  cannot  file  a  suit  for 
redemption  of  a  mortgage  on  it  and  is,  therefore,  not 
entitled  to  deposit  in  Oouil  the  mortgage-money  undei 
a  83,  Transfer  of  Property  Act  [p  718,  cols  1  &  2  ] 

In'  older  to  enable  a  person  to  sue  on  an  indemnity 
clause  it  is  not  necessary  that  actual  damage  should 
be  cau^d  before  the  party  ailee'ted  can  act  [p  717, 


6n  v  Gullick,  (181)3)  2  Th  514,  3  R 
fill)  fiS  L  T  753  and  Eastern  Shipping  Co  v  Quali 
tong  Kee,  (1021J  A  (!  177,  93  L  J  P  C  72,  13J  L  T 
402,  10  T  L  R  109,  relied  on 

Petition,  under  s  115  of  Act  V  of  1908, 
praying  the  High  Court  to  revise  the  find- 
ino-  of  the  Oourt  of  the  Temporary  Sub- 
ordinate Judge,  Devakottah,  in  O  8.  No.  6 
of  1921,  dated  the  6th  September  1924. 

Messrs.  A.  Krushnasiramy  Iyer  and  M. 
Patanjali  Sastri,  for  the  Petitioner. 

Messrs.  A.  Srinivasa  lyengar  and  S  It. 
Muthuswamy  Iyer,  for  the  Respondent?. 

JUDGMENT.—  This  is  an  application 
to  set  aside  the  order  of  the  Subordinate 
Judge  who  dismissed  the  suit  as  against 
the  second  defendant  holding  that  he  was 
an  improper  party.  The  suit  was  filed  by 
the  plaintiff  to  enforce  specific  performance 
of  a  contract  to  purchase  certain  property 
for  Rs.  70,000.  There  was  a  mortgage  over 
the  property  created  by  the  predecessor- 
in-title  of  the  first  defendant,  who  was  the 
person  who  contracted  to  sell  the  suit  pro- 
perty to  the  plaintiff,  for  a  principal  sum 
<6f  &i.  50,000.  The.  first  defendant  denied 


that  the  mortgage  was  binding  on  the  pro- 
perty on  the  ground  that  it  was  a  fraudu- 
lent and  collusive  transaction  entered  into 
by  the  predecessor-in-title  through  whom 
lie  claims  for  the  purpose  of  defrauding 
the  creditors  and  that  any  consideration 
passed  for  that  mortgage.  The  plaintiff, 
who  had  agreed  to  purchase  the  properties, 
got  a  varthamanam  letter,  Ex.  0,  whereby 
the  first  defendant  agreed  to  indemnify 
the  plaintiff  against  all  claims  by  third 
persons.  The  plaintiff  in  this  suit  joined 
both  the  first  defendant  who  was  the  per- 
son with  whom  he  entered  into  the  contract 
to  sell,  and  the  second  defendant  who  was 
the  person  who  claimed  as  a  mortgagee 
under  a  mortgage  created  by  the  predeces- 
sor-in-title  of  the  first  defendant  for  a 
principal  sum  of  Rs.  50,000  the  interest  on 
which  would  amount  to  a  great  deal  more, 
the  defendants  inter  sz  disputing  the  valid- 
ity of  the  mortgage,  the  first  defendant 
saying  that  there  was  no  mortgage  which 
can  be  enforced  against  the  property  and 
the  second  defendant  that  it  was  a  valid 
mortgage. 

Now  the  difficulty  in  this  case  is  as  to 
what  the  plain  tiff  lias  to  do?  If  the  second 
defendant  is  discharged  from  the  suit,  the 
plaintiff  would  be  in  the  position  of  having 
to  pay  the  second  defendant  the  full  mort- 
gage-money which  the  first  defendant  may 
draw  out,  and  the  day  after  there  might  be 
a  suit  against  the  plaintiff  on  the  mort- 
gage under  which  the  second  defendant 
claims,  and,  if  the  first  defendant's  case 
that  the  mortgage  was  fictitious  or  a  sham 
transaction  is  not  true,  then  the  plaintiff 
would  have  to  pay  that  amount  over  again. 
It  was  suggested  that  the  plaintiff  might 
pay  the  money  in  Court  under  s  83  of  the 
Transfer  of  Property  Act  and  leave  it  to 
the  defendants  to  fight  out  the  question  ; 
but  the  trouble  is  that  the  plaintiff  on  the 
date  of  the  suit  was  merely  an  individual 
in  possession  of  an  agreement  to  sell  and 
s.  54  of  the  Transfer  of  Property  Act  says 
that  a  contract  for  the  sale  of  immoveable 
property  is  a  contract  that  a  sale  of  such 
property  shall  take  place  on  terms  settled 
between  the  parties  and  that  it  does  not 
of  itself,  create  any  ^interest  in  or  charge 
of  such  property;  the  plaintiff,  therefore, 
is  a  person  who,  by  reason  of  the  agree- 
ment to  sell,  has  no  interest  in  the  pro- 
perty. 

As  regards  the  paying  of  money  into 
Coart  under  s,  #3,  th3  se3tion  states  thafr 


[92-1.  0.  1926J  MAYAPFA  OHBTTIAR  V.  KOLANDAIVBU7  CHETTIAR, 


717 


the  person  who  can  deposit  in  Court  would 
be  a  person  who  could  file  a  suit  for  le- 
demptioii.  It  says  that  the  moilgagoror 
any  other  person  entitled  to  institute 
such  suit  (that  is  a  suit  to  ledeemj  may 
deposit  the  money  into  Couit.  Section  91 
enumerates  the  persons  who  may  ledeeni 
and  a  person  who  has  merely  got  an  ugiee- 
ment  to  sell  the  piopeity  does  not  iall 
under  any  of  these  categoiies.  So  that, 
the  lemedy  undei  s.  83  is  not  open  to  the 
piesent  plaintiff. 

Turning  to  the  Specific  Relief  Act,  we 
find  in  cl  (c)ofs.  2/,  (\\hichstates  against 
whomacontiact  can  be  specifically  enioieedj 
that  it  can.  be  enforced  against  u  any 
pei son  claiming  under  a  title  which,  though 
prior  to  the  contiact  and  known  to  tlie 
plaintiff,  might  have  been  displaced  by  the 
defendant."  Jn  tins  cabe  the  lust  delend- 
aat,  il  Ins  case  is  tiue,  can  Ijle  a  suit 
against  the  second  defendant  to  have  that 
moitgage  declaied  invalid  and  not  binding, 
so  tluit  he  can  displace  a  title  which  \\as 
cieated  by  his  predecessors  m-titlc  Section 
27 ',  thereioie,  seems  to  me  to  piovide  for  a 
case  like  the  piesent  and  enable  theplaint- 
ift  to  tile  a  suit  against  the  in&t  deiendant 
Avho  executed  the  agieement  to  sell  and 
the  second  defendant  who  claims  under  a 
title  of  the  hist  defendant,  which  title  the 
first  defendant  can  file  a  suit  to  displace, 
on  the  ground  that  it  was  a  fraudulent 
transaction  brought  about  to  defiaud  the 
creditors  and  that  no  consideuition  passed 
therefor.  It  seems  to  me  that,  in  a  case 
like  the  piesent,  the  only  convenient  coiuse 
would  be  to  allow  both  the  first  defendant, 
who  executed  the  agreement,  and  the  second 
defendant,  who  claims  under  an  encum- 
brance, to  be  joined  as  paities,  whereby 
the  dispute  between  the  person  who  claims 
an  mteiest  in  the  propeity  as  a  mortgagee 
may  be  settled.  That  is  the  only  safe  way 
of  keeping  the  plamtift  really  indemnified. 
In  that  suit  if  it  is  decided  that  the  mort- 
gage is  valid,  the  money  which  the  plaint- 
iff has  paid  into  Court  under  the  decree 
would  be  appiopnated  in  such  a  way  as  to 
keep  the  plaintiff  fiee  from  all  future 
troubles.  I  see  very  little  justice  in  making 
the  plaintiff,  in  a  suit  like  this,  pay  the 
money  into  Court,  and  allowing  the  de- 
fendant to  draw  the  money  and  then  leav- 
ing the  plaintiff  at  the  ineicy  of  the  peison 
who  claims  under  a  mortgage  which  he  can 
enforce  later  on  with  interest  for  the  inter- 
vening period,  for  that  would  be  the  result 


of  striking  out  the  second  defendant  in  a 
case  like  this  and  letting  the  suit  to  pioceed 
against  the  other  party. 

Refeience  was  made  to  the  fact  that 
in  the  vai  thamanam  letter  theie  is  ac- 
tually a  promise  to  indemnify  the  plaint- 
iff against  any  loss  ultimately  sustain- 
ed, and  that,  till  the  loss  is  sustained, 
the  plaintiff  has  to  pay  the  money  and 
take  his  chance  of  getting  it  back  or  not 
under  the  indemnity  clause.  1  Hunk  the 
decisions  cited  by  Mr.  Patanjah  Sastn,  aie 
in  lavoui  of  the  view  that  it  is  not  neces- 
sary that  actual  damage  should  be  caused 
beioie  the  paity  allected  can  act.  In 
Wolmershausen  v  Gulhck  (1)  and  Eastern 
Skipping  Co  v  Qnah  Be7ig.  Kce  (2)  the 
person  who  was  ultimately  to  pay  was  made 
a  paity  The  case  ol  the  plaintiff  here 
is  this  He  has  got  an  agieement  to 
sell  ,  that  the  person  who  has  got  to  sell 
denies  that  theie  is  any  moitgage  on  the 
piopeity  which  is  binding  on  it,  and  tlu-ie 
is  the  second  defendant  who  claims  under 
a  mortgage  not  executed  by  a  sti anger 
churning  a  pai amount  title  but  by  the  pre- 
decesbor-m  title  of  the  first  defendant. 
Theie  is  albu  an  indemnity  clause  in  the 
mrlhamanam  letter  saying  that  he  should 
be  indemnified  against  any  loss  he  may 
sustain  if  iival  claims  weie  established. 
Mow,  the  plaintiff  natuially  says  "  1  am 
ready  to  pay  money  to  the  first  defendant 
as  1  am  bound  to  do  under  the  contract. 
If  theie  is  any  moitgage,  lam  entitled  to 
see  that  the  money  is  paid  to  thedischaige 
of  the  mortgage,  so  as  to  give  me  a  clear 
title.  Therefore  let  that  question  be  de- 
cided befoie  the  money  is  paid  into  Couit." 
Clause  lb  (c)  of  the  Specific  Relief  Act 
says  .— -u  Wheie  the  vendor  professes  to  sell 
unencumbered  pioperty,  but  the  property  is 
mortgaged  for  an  amount  not  exceeding 
the  purchase-money,  and  the  vendor  has  in 
fact  only  a  right  to  redeem  it,  the  purchaser 
may  compel  him  to  redeem  the  mortgage 
and  to  obtain  a  conveyance  from  tliemoit- 
gagee.1'  1  see  there  is  nothing  eithei  in 
justice  or  in  equity  to  compel  this  to  be 
done  by  a  sepaiate  suit,  and  where  the 
vendor  says  that  there  is  no  mortgage  which 
he  has  to  redeem  and  that  the  moitgage 
set  up  was  a  sham  transaction,  I  see  no- 
thing to  pi  event  that  question  being  tried  if 
the  suit  for  specific  performance  itself  by 

(1)  (1803)  2  Ch,  514,  3  K,  610,  68  L  T  753. 

(2)  a^l)  A  0.  177,  93  L,  J,i\  U,  72,  130  L,  T,  iC2; 
40  T,  L.  K,  109.  ' 


718 


MATAPPA  CHETTIAR 


making  the  person  who  claims  a  title  a 
party  to  that  suit,  where  that  party  claims 
under  a  sale  created  by  the  vendor's  pre- 
decessors-in-title.  Having  regard  to  these 
considerations  it  seems  to  me.  that,  incases 
like  the  present,  the  just  and  proper  course 
will  be  to  implead  the  person  who  claims 
to  be  amoitgagee  and  to  adjudicate  on  all 
these  questions  in  the  suit  itself  so  as  to 
enable  the  purchaser  to  be  free  from  all 
future  risk  and  liability.  Unless  I  am  com- 
pelled to  hold  by  any  provisions  of  the 
C.  P.  C.,  or  the  Specific  Relief  Act  that  such 
a  suit  would  be  bad,  I  do  not  see  whv  the 
most  general  principles  as  to  not  making 
persons  not  parties  to  a  contract  parties 
should  stand  in  the  way.  There  can  be  no 
objection  to  the  general  rule  that  persona 
who  do  not  claim  under  the  parties  to  a 
contract  and  are  strangers  to  it  should  not 
be  made  parties  There  is  also  the  other 
rule  that  persons  claiming  adversely  to  both 
the  parties  to  a  suit  for  specific  performance 
or  for  redemption  of  a  moitgage  ought  not 
to  be  made  parties.  Applying  these  gene- 
ral principles  to  the  facts  of  a  case  like  the 
present  it  is  diilicult  to  see  how  it  can  be 
said  that  a  person,  who  claims  under  a  mort- 
gage created  by  the  predecessor-in  title  of 
the  person  who  agrees  to  sell,  claims  an 
interest  which  is  hostile  to  both  parties  or 
that  he  is  a  person  who  ought  not  to  be 
joined  under  any  provisions  of  the  C,  P.  C. 
The  Specific  Relief  Act  makes  ample  provi- 
sion for  protection  of  the  interests  of  the 
person  who  agrees  to  buy  the  property  sub- 
ject to  encumbrances.  Reference  was  made 
by  the  respondent  to  the  case  repoi  ted  as 
Bugata  Appala  Naida  v.  Chengalvala 
Jogiraju  (3).  That  was  a  case  where  a  suit 
for  specific  performance  was  filed  against  a 
person  who  agreed  to  sell  and  against  a 
mortgagee  on  a  mortgage  created  by  the 
person  who  contracted  to  sell  the  property. 
The  mortgage  was  with  possession.  The 
learned  Judges  in  that  case  stated  that  theie 
was  misjoinder  as  regards  the  mortgagee 
dealing  with  the  disputes  between  the  mort- 
gagee and  the  mortgagor.  They  say  "Fur- 
ther as  the  1st  defendant  now  disputes  the 
validity  of  the  mortgage,  the  amount  due 
thereunder  will  be  paid  into  Court  by  the 
plaintiff  under  s.  83  of  the  Transfer  of 
Property  Act,  and  if,  within  three  months, 
the  1st  defendant  has  not  taken  pro- 
ceeding to  set  aside  the  mortgage  and 

(3)  32  Ind.  OM,  237;  (1916)  1  M,  W,  N,  77* 


KOLAND11VBLU  CHBTTIAR.  [9§  I.  0. 

to  establish  his  right  to  the  money,  it 
will  be  paid  over  to  the  mortgagees/'  But 
the  learned  Judges  unfortunately  failed  to 
see  that  s.  83  would  not  cover  a  case  like 
that,  because  the  vendee  (the  plaintiff) 
could  not  pay  the  money  into  Court  under 
that  section  as  he  had  no  right  to  redeem 
the  property.  With  great  respect,  it  seems 
to  me  that  that  remedy  would  not  help  the 
parties  in  this  case,  because  they  may  be 
met  by  the  objection  that  the  money  could 
not  be  paid  into  Court  under  s.  83.  Cases 
have  been  referred  by  the  respondents'  Vakil 
which  relate  to  paramount  titles  set  up  by 
a  person  not  a  party  to  the  contract,  for 
example,  Howard  v.  Miller  (4).  That  was 
clearly  a  case  where  the  person  claiming 
the  property  was  not  a  party  to  the  contract 
but  a  person  who  claimed  adversely  both  to 
the  vendor  and  to  the  vendee.  The  cases 
reported  as  Ranqayya  Reddi  v.  Subramanya 
Aiyar  (5)  and  Ahmedbhai  v.  Dinshaw  (6)  are 
cases  where  joint  family  property  was  agreed 
to  be  sold,  and  it  was  held  that  the  co- 
owners  who  disputed  the  validity  of  the 
transaction  were  not  proper  parties.  The 
claim  was  by  persons  not  parties  to  the 
contract  but  by  persons  who  claimed  ad- 
versely both  to  the  person  who  contract- 
ed to  sell  and  to  the  person  who  con- 
tracted to  buy.  I  do  not  think  that  these 
cases  afford  much  help  in  a  case  where 
there  is  a  mortgage  created  by  the  pre- 
decessor- in- title,  which  mortgage  is  attack- 
ed, and  there  is  a  dispute  between  the 
vendor  and  the  vendee  as  to  the  validity 
of  that  mortgage.  It  seems  to  me  that 
considerations  of  justice  and  equity  demand 
that  in  such  a  case  theie  should  be  one 
suit  filed  to  adjudicate  all  matters  in  dis- 
pute and,  as  I  find  no  decided  cases  which 
actually  decide  the  present  question,  I  do 
not  gee  why  the  suit  as  framed  should  not 
go  on. 

I  reverse  the  order  of  the  Subordinate 
Judge  and  direct  that  he  proceed  to  try 
the  suit  as  framed  according  to  law.  It 
will  be  open  to  him  in  the  process  of  the 
suit  to  direct  any  monies  which  the  parties 
are  legally  bound  to  pay  to  be  paid  into 
Court  and  to  pass  such  orders  as  to  tak- 
ing security  or  on  payment  as  he  thinks 
fit, 

(4)  (1915)  A.  C.  318;  84  L,  J,  P.  0.  49;  112  L.  T, 
403. 

(5)  40  Ind  Cas.  429;  40  M.  365;  32  M.  L.  J.  575;  5  L, 
W.  797;21M.L.T.385. 

(6)  12  Ind,  Cw,  813;  13  Bom,  L,  B,  1061, 


[92  I.  0.  Id26  llAUttQ  MtA  DtN  t>. 

I  allow  the  petition  with  costs  against  the 
second  respondent. 

v.  N.  v.  Petition  alloued. 

N,  H. 


RANGOON  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  260  OF  1924. 

April  30,  1925. 

Present. — Mr  Justice  Das 

MAUNG  MYA  DIN-APPELLANT 

veisus 
MAUNG  YE  GYI  AND  ANOTHER— 

RESPONDENTS. 

Buddhist  Law,  Burmese — Adoption-  Minor,  whether 
can  adopt 

Adoption  is  a  contiact  under  winch  a  person  takes 
another  with  certain  objects  and  conleis  certain 
rights  Hence,  to  be  able  to  adopt  a  person  must  he 
of  age  and  able  to  contiact  A  minor  is  not,  therefoie, 
legally  empovvcied  to  adopt  any  peisun 

Second  appeal  against  the  decree  of  the 
District  Court,  Henzada,  in  Civil  Appeal 
No.  148  of  1923. 

Mr.  Se??,  for  the  Appellant. 

Mr.  Kyaiv  Htvon,  for  the  Respondents 

JUDGMENT.— The  appellant  in  this 
case  filed  a  suit  for  possession  of  two  pieces 
of  land  belonging  to  his  step-sister  Ma 
Ngwe  Bwin.  The  lands  in  question  were 
in  the  possession  of  the  mateinal  aunt  of 
Ma  Ngwe  Bwm.  She  resisted  the  claim  of 
the  plaintiff  on  the  ground  that  she  had 
adopted  Ma  Ngwe  Bwin  when  Ma  Ngwe 
Bwin  was  seven  months  old,  and  that, 
therefore,  she  was  entitled  to  these  pieces  of 
land  as  heir  of  Ma  Ngwe  Bwin,  Ma  Ngwe 
Bwin  having  died  without  any  children  or 
other  direct  heirs. 

If  Ma  Ngwe  Bwin  had  been  adopted  by 
the  defendant,  Ma  Nyun,  then  it  is  admit- 
ted that  Ma  Nyun  would  be  entitled  to  the 
estate  of  Ma  Ngwe  Bwin. 

Both  the  lower  Courts  held  that  Ma  Ngwe 
Bwin  had  been  adopted  by  the  defendant, 
and,  therefore,  dismissed  the  plaintiffs 
claim, 

Ordinarily  these  findings  would  be  bind- 
ing on  this  Court  as  tv\o  concurrent  judg- 
ments, but  both  Courts  have  ovei  looked  the 
fact  that,  at  the  time  of  the  alleged  adop- 
tion, Ma  Nyun  was,  according  to  her  own 
statement,  only  15  years  old,  living  with  her 
parents. 

Ma  Nyun's  case  is  that  it  was  then  that 
she  adopted  Ma  Ngwe  Bwia  with  a  view  to 

inherit. 


I  am  of  opinion  that  &  minor  cannot 
adopt  any  person  To  be  able  to  adopt  a 
pei son  must  be  of  age,  and  able  to  contiact. 
Adoption,  after  all,  is  a  contract  under 
which  a  person  takes  another  with  certain 
objects,  and  confers  certain  rights,  and  I  do 
not  think  that  a  minor  is  legally  empowered 
to  adopt  any  person. 

No  evidence  of  notoriety  has  been  pro- 
duced in  this  case  The  only  evidence 
regarding  the  adoption  is  the  giving  *md 
taking  ot  the  child,  who  -was  at  that  time 
seven  months  old,  by  Ma  Nyun,  and  the 
child's  living  with  Ma  Nyun  together  since. 
There  is  nothing  extraordinary  in  a  child 
living  with  an  aunt  and  grand-mother  on 
the  death  of  her  own  mother 

There  is  also  another  fact  which  goes  to 
show  that  there  could  not  have  been  any 
adoption.  It  is  admitted  that  Ma  Ng\\e 
Bwin  inheiited  a  quarter  share  of  her 
father's  estate  on  his  death.  It  is  impossible 
to  believe  that,  if  Ma  Ngwe  Bwin  had  been 
adopted,  she  would  have  been  allowed  to 
take  a  shaie  in  the  natural  father's  estate 

Under  these  ciicumstances  I  must  hold 
that  Ma  Nyun  was  incapable  of  adopting 
Ma  Ngwe  Bwin  at  the  time,  she  eajs  she 
did,  and  that  Ma  Ngwe  Bwm  had  not  any 
pioperty  by  her. 

1,  therefore,  set  aside  the  decrees  of  both 
the  Courts,  and  the  plaintiff  will  get  a 
decree  for  possession  of  12  85  acres  of  paddy 
land  as  claimed  in  the  plaint, 

The  defendants  claim  having  spent  some 
money  for  the  funeral  expenses  of  Ma  Ngwe 
Bwin,  and  also  claim  that  Ma  Ngwe  Bwin 
owed  them  some  money.  These  claims  of 
the  defendants  cannot  be  gone  into  in  this 
suit,  but  must  be  tried  in  a  separate  suit 
If  the  defendants  have  any  such  claim 
they  are  at  liberty  to  file  a  suit  for  the 
recovery  of  it  from  the  estate  of  Ma  Ngwe 
Bwin. 

The  plaintiff  has  failed  to  prove  that  the 
defendant  has  received  the  rental  of  the 
paddy  land,  namely,  220  baskets  of  paddy, 
and  that  part  of  his  claim  will  be  dismissed. 
The  plaintiff  will  get  costs  in  all  Courts. 

z.  K.  Appeal  allowed. 


720: 


CHfcNGAYtfA  V.  ARliVBLU  DEVASAKAMBAGARtT.  [92  I.  0.  19231 


MADRAS  HIGH  COURT* 

LETTERS  PATENT  APPEAL  No.  90  OF  Iy24. 

October  9,  1925. 
Present: — Mr,  Justice  DevadoSs  and 

Mr.  Justice  Waller. 

MULUGU  CHENGAYYA— PLAINTIFF- 
APPELLANT 

versus 
ARUVELU  DEVA8ANAMBAGARU 

AND  OTHERS — DEFENDANTS—  RESPONDENTS. 

Hindu  Law  Joint  family  ~  Alienation  by  manager 
—Failure  to  describe  himself  an  such— Interest  con- 
veyed 

Where  a  person  ptirchciaes  pioperty  from  a  de 
facto  manager  of  a  joint  Hindu  family  and  there  is 
nothing  m  the  document  to  show  that  tho  manager 
conveyed  only  his  share  or  that  he  reseived  the  shaie 
of  anybody  from  being  conveyed,  both  the  paitiesto 
the  conveyance  must  be  presumed  to  have  intended 
that  the  mteret»t  of  the  whole  family  should  be  con- 
veyed by  it  Li>  720,  col  2J 

The  mere  iact  that  the  vendoi  did  not  dosuiibt* 
himself  as  managing  member  is  not  a  circumstance 
which  should  be  taken  aa  militating  against  such 
piesumption  [ibid] 

Halwant  Siti'jli  v  Rev.  Rockwell  Clancy,  11  Jnd  Cas 
029,  34  A  2%  dtp  2<J%  (11)12)  M  W  N.' 462,  11  M  1, 
T.  311,  9  A  L  J.  509,  15  O.  L.  J.  475,  10  0  W  N 
577,  n  M  L  J  18;  14  Bom  L  II  422,  39  1  A.  101) 
(1J  0),  distinguished 

Letters  Patent  Appeal  against  the  judg- 
ment and  decree  oi  Mr.  Justice  Krishnan, 
dated  the  12th  March  1924,  in  8.  A.  No. 
$95  of  1921,  preferred  against  the  decree 
of  the  Court  of  the  Subordinate  Judge, 
Chittor,  in  A.  S.  Nos.  46  and  47  of  i920,  pre- 
ferred against  that  of  the  Court  of  the 
District  Munsif,  Tirupati,in  O,  8.  No.  1016 
of  1914. 

Mr.  B.  Somayya,  for  the  Appellant. 

Mr.  N.  Chandrasekhara  Iyer,  for  the  Re- 
spondents, 

JUDGMENT— The  question  in  this 
appeal  is  whether  the  plaintiff's  share  was 
sold  by  the  6th  defendant  to  the  1st  de- 
fendant under  sale-deeds  Exs.  Vlt  and  III. 
The  contention  of  Mr.  Somayya  for  the  ap- 
pellant is  that  the  6th  defendant  sold  the 
property  as  his  and  that  he  did  not  sell  the 
property  as  the  manager  of  the  joint  Hindu 
family  and,  therefore,  he  could  not  have 
validly  conveyed  the  share  of  the  plaintiff. 
He  places  great  reliance  upon  the  evidence 
of  P.  W.  No.  3,  the  son  of  the  1st  defend- 
ant. In  his  evidence  he  stated  that  it  was 
believed  at  the  time  of  the  sale  that  the 
plaintiff  had  been  adopted  into  another 
family.  From  this  the  appellant  wants  us 
to  infer  that  the  6th  defendant  sold  only 
his  share  of  the  family  property.  The  cir- 
cumstances are  these.  The  plaintiff  and 
6th  defendant  are  brothers,  The  pro- 


perty of  the  family  was  sold  for  paying  off 
the  debts  of  their  father  and  in  the  docu- 
ments there  is  no  mention  that  the  right  of 
the  6th  defendant  alone  was  sold.  No  doubt 
there  is  no  mention  in  it  that  the  1st  de- 
fendant conveyed  the  properties  under 
Exs,  VII  and  III  as  managing  member  of  the 
joint  Hindu  family.  But  the  question  is 
where  the  de  facto  manager  of  a  joint 
Hindu  family  conveys  the  property  without 
any  reservation  and  without  restricting  the 
right  conveyed  to  his  own  share,  whether 
the  Court  should  presume  that  the  vendee 
contracted  to  buy  and  the  vendor  contracted 
to  sell  the  interest  of  the  whole  family  in  the 
property  The  proper  presumption  in  such 
a  case  would  be  that  where  a  vendee  firm  pur- 
chases piopeity  from  a  de  facto  manager  of 
the  joint  Hindu  family  and  there  is  noth- 
ing m  the  document  to  show  that  the 
manager  conveys  only  his  share  or  that  he 
reseives  the  share  of  anybody  from  being 
conveyed,  both  the  parties  to  the  conveyance 
intended  that  the  whole  interest  of  the  fami- 
ly should  be  conveyed  by  it.  Here  in  this 
case  theie  is  an  additional  circumstance 
that  the  debt  for  which  the  sales  were 
effected  was  a  debt  binding  both  upon  the 
plaintiff  and  upon  6th  defendant.  The 
purpose  being  one  which  could  bind  both 
the  plaintiff  and  the  6th  defendant,  the 
mere  fact  that  the  vendor  did  not  describe 
himself  as  the  managing  member  of  the 
joint  Hindu  family  is  not  a  circumstance 
which  should  be  taken  as  militating  against 
the  presumption  that  what  the  bona  fide 
purchaser  bought  was  the  whole  interest  of 
the  joint  family  in  the  property  conveyed 
to  him.  Mr.  Somayya  places  great  reliance 
upon  Balwant  Singh  v.  Rev.  Rockwell  Clancy 
(I).  The  facts  of  that  case  are  different 
fiom  those  of  the  present  In  that  case  the 
vendor  claimed  the  property  as  impartible 
property  belonging  to  him  alone.  It  was 
held  that  he  could  not  have  intended  to 
convey  the  interest  of  the  younger  brother 
whose  right  he  denied  in  the  document 
itself.  Their  Lordships  of  the  Privy  Council 
found  that  the  brother  was  a  minor  at  the 
time  and,  therefore,  his  consent  to  the  sale 
was  of  no  avail  to  the  vendee.  They  ako 
found  that  the  mortgage  was  not  made  by 
Sheoraj  Singh  as  the  manager  of  the 


(1)  14  Jnd.  Cas  629;  34  A.  296  at  p  298;  (1912)  M. 
W  N  462,  11  M  L  T.  344-  9  A.  L  J  509;  15  C  L  J, 
475;  16  0.  W.  N.  577;  23  M,  L,  J,  18;  14  Bom.  L.  R, 
422;  39 1,  A.  109  (P,  0.). 


TfliKAR  SINGH  V.  INDAR 


£92 1  0. 1926] 

family  or  in  any  respect  as  representing 
Maharaj  Singh,    Here  when  the  6th  defend- 
ant conveyed  the  property,  he  did  not  deny 
the  right  of  the  "plaintiff,  nor  did    he  hold 
out  that  he  was  the  only    person  interested 
in    the    property.    The   case  in  Ammani 
Ammal  v.  Ramasami  Naidu  (2)  does    not 
help  the    appellant.    It  is  unnecessary  to 
consider  the  cases  quoted  by  Mr.   Chandra- 
Bokhara  Iyer   such    as    Maharaj  Singh  v. 
Balwant  Singh  (3),  Gottukkula  Surapa  Raju 
v.  Gottumkkula  Venkayya  (4)  and  Audimula 
Mudali  v.  Alamalammal  (5)  in  the  view  we 
have  taken  of  the  case.    We   consider  the 
judgment  of  the  learned  Judge  to  be  correct 
and  dismiss  the  Letters  Patent  Appeal  with 
costs  etwo  sets  one    to  the    1st  defendant 
and  the  other  to  the  5th  defendant's  legal 
representatives, 
v,  N.  v.  Appeal  dismissed. 

N.  H. 

(2)  51  Ind.    Gas   57;  10  L  W   75,  37  M.  L   J.  113; 
(1919)  M.  W.  N  866. 

(3)  28  A    508  at  p  517,   3  A    L  J    274,  A.  W    N. 
(1906)  117, 

(4)  32  Ind.  Gas.  802,  (1915)  M.  W.  N,  908 

<5)  36  Ind.  Cas.  365,  4  L  W,  126,    (1916)  2  M.  W.  N. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1059  OF  1924. 

December  18,  1924. 

Present: — Mr.  Justice  Harrison. 

THAKAR  SINGH  AND  ANOTHER- PLAINTIFFS 

— APPELLANTS 

versus 

INDAR  SINGH  AND  OTHERS— DEFENDANTS — 
RESPONDENTS. 

Co-sharers — Nature  of  right  in  joint  property — Sale 
of  definite  portion  by  one— Rights  of  others 

So  long  as  partition  lias  not  taken  place,  each  co- 
sharer  has  a  share  in  every  fragment  and  portion  of 
the  joint  holding  and  if  his  rights  are  infringed  by 
his  co-sharer  alienating  a  definite  portion  of  th<*  joint 
holding,  he  is  entitled  to  a  dejree  for  a  declaration 
that  he  is  joint  owner  of  the  portion  alienated,  [p  t22, 
col.  1.] 

I^achman  Das  v  Sunder  Das,  124  P,  R.  1879,  refer- 
red to. 

Second  appeal  from  a  decree  of  the 
District  Judge,  Lahore,  dated  the  5th 
January  1024,  modifying  that  of  the  Sub- 
Judge,  Third  Class,  Lahore,  dated  the  2«th 
January  Iy23. 

Lala  Daulat  Rom,  for  the  Appellants, 
Malik  Mahomed  Huswin,  for  the  Respond- 
ents, 

46 


JUDQMENT.—Indar  Singh,  who  owns 
half  of  a  joint  holding,  executed  a  sale-deed 
conveying  a  definite  portion  of  this  undivid- 
ed   joint   holding    to  his    vendee    Qanda 
Singh.    The  plaintiffs  being  the  owners  of 
the  other  half  brought  this  suit  for  posses- 
sion of  one  half  of  the  area  sold,  and    for  a 
declaration  that  regarding  the    other  half 
the  alienation  would  not  affect  their  rever- 
sionary rights.    The  suit  was  dismissed  by 
the  Trial  Court,  and  on  appeal  the  District 
Judge  held  that  Rs.  100  only  of  the  con- 
sideratrn    money   had    passed,    and  was 
shown  to  have    been    for   necessity,    and 
agreed  with  the  lower  Court    in  holding 
that  the  suit  by  the  co-sharers  for  posses- 
sion of  one  half  of  the  area  sold  did  not  lie 
and   that  their  only  remedy  was  for  parti* 
tion. 

The  plaintiffs  have  appealed  from  both 
points.  As  regards  the  item  of  Rs.  100, 
which  is  recited  to  have  been  required  for 
the  payment  of  an  old  mortgage,  they 
challenge  the  truth  of  the  allegation  that 
there  ever  was  a  mortgage.  It  is  shown  by 
the  Revenue  Records  that  in  1897  a  muta* 
tion  was  entered  regarding  a  mortgage 
effected  by  the  father  of  the  present  plaint- 
iffs in  favour  of  the  present  vendee,  and 
that  there  was  not  a  mere  casual  order  is 
shown  by  thejfact  that  whereas  the  father  of 
the  present  plaintiffs  purported  to  charge 
the  share  of  his  nephews  also  the  mort* 
gage  was  disallowed  so  far  as  those  nephews 
were  c  mcerned.  This  creates  a  strong  pre* 
sumption  as  to  the  genuineness  of  the  mort* 
gage  Counsel  points  out  that  the  special 
Kanunyo  speaks  of  the  mortgage  as  of  the 
year  1892,  but  it  is  not  clear  whether  this 
was  the  same  mortgage,  or  whether  there 
has  been  some  error  in  the  description  and 
the  date  given.  He  further  relies  on  the 
fact  that  the  sale  deed  mentions  a  deed* 
whereas  the  mortgage  of  1897  was  oral. 
I  think  this  is  all  very  immaterial,  and  find 
it  is  fully  proved  that  a  mortgage  for  a 
small  sum  was  'effected  by  the  father  of 
the  plaintiffs  and  was  a  valid  charge,  and 
after  this  lapse  of  time  it  is  impossible  to 
effect  any  further  proof  of  necessity  beyond 
its  execution. 

As  to  the  second  point,  Counsel  relies  on 
Lachman  Das  v.  Sundar  Des (I)  and  Counsel 
for  the  respondent  has  not  been  able  to 
show  any  sort  of  authority  against  this 
clear  and,  I  think,  self  evident  exposition  of 

(1)  124  P.  R,  1879, 


722 


8HANKAR  BAK8H  V.  TALUQDBI. 


[92 1.  0. 1&26J 


the  law.  So  long  as  partition  has  not  taken 
place  each  co-sharer  has  a  share  in  every 
fragment  and  poition  of  the  joint  holding, 
and  if  his  rights  are  infringed  by  his 
co-sharer  alienating  or  selling  them,  he  is 
entitled  to  a  decree  at  any  time  to  the  effect 
that  he  is  a  joint  owner  of  any  portion 
alienated,  sold  or  charged.  This  is  not  the 
same  thing  as  saying  that  he  is  entiteld  to 
physical  possession  of  that  portion  without 
partition,  but  he  is  always  entitled  to  his 
decree, 

I,  therefore,  accept  the  appeal  in  so  far 
only  as  to  give  the  plaintiff  a  decree  for 
joint  possession  of  the  land  in  suit,  i.e.,  for 
half  of  the  land  in  suit.  Under  the  circum- 
stances, I  order  that  the  parties  bear  their 
own  costs.  For  the  rest  the  appeal  is 
dismissed. 

R.  L.  Appeal  dismissed. 

N.  H. 


OUDH  CHIEF  COURT, 

FIRST  EXECUTION  OF  DECREE 

JSo.  62  OF  1925 
November  3,  1925, 
Present:  —  Mr,  Justice  Ashworth  and 

Mr,  Justice  Misra. 

SHANK  AR  BAK8H—  JUDGMENT-DEBTOR 
—  APPELLANT 


Musammat  TALUQDEI  —  DECREE-HOLDER 
—  RESPONDENT. 

Decree,  execution  of—  Decree,  whether  can  be  ques- 
tioned 

Parties  m  an  execution  case  cannot  call  in  question 
the  validity  of  a  decree  as  actually  fiamed  or  impugn 
the  jurisdiction  of  the  Court  that  iramed  it.  .Nur  m  it 
open  to  a  party  in  an  execution  case  to  go  behind 
the  plain  and  obvious  meaning  of  a  decree,  [p  723,  col. 

Hemanta  Kumari  Debi  v  Midnapur  Zemindar  i  Co 
53  Ind    Cas.  534;   47  C.  485,  37  M.  L    J    525,  17  A,  L. 
J.  1117;  24  0  W  N  177,  (Iy20)  M.  VV    N    66,  27  M  L. 
T.  42,  11  L  W.  301,  46  1.  A.  140,    22  Jjom.  L.  K  488 
(P  0.),  refeired  to 

Appeal  fruni  an  order  of  the  Subordinate 
Judge,  Bahraich,  in  Miscellaneous  Suit 
No.  129  of  1^25,  dated  the  2iHh  August  1V25. 

Mr.  M.  Wasim,  ior  the  Appellant. 
•  Mr.  A.  P.  Sen,  for  the  Respondent. 

JUDGMENT.—  This  appeal  arises  out 
of  an  order  oi  the  Subordinate  Judge  of 
Bahraich  in  an  execution  case  dismissing 
the  appellant's  objection  to  execution  oi  a 
certain  deciee,  dated  2lst  July  Itf22.  The 
facts  of  the  case  are  as  follows  :  One 


Musammat  Taluqdei  was  the  donee  under 
a  deed  of  gift  executed  by  T hakur  Man- 
dhatta  8111  gh  her  father.  The  present 
appellant  is  the  son  of  Mandhatta 
Singh.  He  brought  a  suit  for  a  declara- 
tion that  the  deed  of  gift  was  void.  That 
suit  was  compromised.  The  compromise 
was  to  the  eflect  that  the  deed  of  gift 
should  be  declared  invalid,  but  that  Musam- 
mat Taluqdei  should  be  given  land  amount- 
ing lo  75  bighas  out  of  the  property 
comprised  in  the  deed  of  gift,  and  also  out 
of  other  property.  The  compromise  pro- 
vided for  a  Commissioner,  one  Babu  Sheo 
Gopal,  allocating  specific  plots  to  the  lady. 
On  this  compromise  being  filed  a  pre- 
liminary decree  was  drawn  up  stating  the 
terms  of  the  compromise,  and  directing 
the  person  named_to  select  the  plots.  After 
he  had  selected  the  plots,  a  further  and 
final  decree  was  passed  awarding  the  lady 
Musammat  Taluqdei  the  specific  plots.  The 
decree  ran  in  the  following  terms: 

"And  in  accordance  with  the  conditions 
entered  in  the  report  of  the  Commissioner, 
the  defendant  No.  1  be  given  possession 
over  these  plots." 

The  lady  put  in  an  application  for  execu- 
tion of  this  decree  by  delivery  of  posses- 
sion. An  ex  parte  order  was  passed  direct- 
ing that  possession  should  be  given  to  her 
and  possession  was  in  fact  given  to  her, 
The  present  appellant  was,  however,  given 
notice  by  the  Court,  and,  in  response  to 
this  notice,  he  appeared  in  Court  and 
objected  to  the  delivery  of  possession  being 
given,  on  the  ground  that  the  decree  should 
not  have  incorporated  any  order  for  the 
delivery  of  laud  not  comprised  in  the 
deed  of  gift,  which  formed  the  subject- 
matter  of  the  suit. 

The  Subordinate  Judge  has  written  a 
lengthy  judgment  considering  the  law 
upon  the  subject.  We  do  not  consider  it 
necessary  to  lefer  to  any  decision  except 
that  of  Hemanta  Kumari  Debi  v.  Midnapur 
Zemindam,  Co.  (1).  On  pages  497  and  49t* 
their  Lordships  ot  the  Privy  Council  drew 
attention  to  the  terms  of  s.  375  of  the  0.  P, 
C.  (Act  XIV  of  1882)  which  have  been 
replaced  by  0.  XXIII,  r.  3  (Act  V  of  1908). 
Their  Lordships  pointed  out  that  it  was 
not  proper  for  a  Court  to  allow  the  opera- 

(1)  53  Lid.  Oas.  534;  47  C  483;  37  M.  L.  J,  525;  17 
A.  L,  J.  1117;  24  0.  W.  N.  177;  (1920)  M,  W.  N.  6G,  27 
M  L.  T.  42;  11  L.  W.  391;  46  L  A.  240;  22  Bom.  L.  R, 

488  (P  0.) 

Tages  of  47  Q,—[Sd.\  ~ 


BANtd  V.  LEHNA  DAS. 

beyond   the    has   passed 


is  not  open 
case    to  go 


[92  I.  0. 1926] 

tive  part  of  a  decree  to  go 
actual  subject-matter  of  the  existing  litiga- 
tion, ana  they  added  that  it  might  be  that 
a  decree  which  infringed  this  rule  was 
incapable  of  being  executed  outside  the 
lands  of  the  suit. 

We  do  not  consider  that  this  last  remark 
throws  any  doubt  on  the  well  established 
view  that  parties  in  an  execution  case  can- 
not call  in  question  the  validity  of  a  decree 
as  actually  framed  or  impugn  the  jurisdic- 
tion of  the  Court  that  framed  it. 

An  attempt  has  been  made  by  the  appel- 
lant's Counsel  to  construe  the  final  decree 
of  which  execution  has  been  allowed  as 
merely  a  declaratory  decree  in  regard  to 
the  land  which  was  not  comprised  in  the 
deed  of  gift  called  in  question  in  the  suit. 
The  language,  however,  of  this  final  decree 
appears  to  us  to  be  plain,  and  to  direct  that 
possession  should  be  given.  It  cannot  be 
construed  as  merely  declaring  title  on  the 
basis  of  the  compromise.  It 
to  a  party  to  an  execution 
behind  the  plain  and  obvious  meaningof  a 
decree. 

For  the  above  reasons  we  dismiss  this 
appeal  with  costs. 

N.  H,  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

MlSCMLLlNEOUS  ApPiSAL  No    1316  OF  1924. 

January  23,  1925. 

Present: — Mr.  Justice  Harrison. 

BANTU  alias  HAR  BHAJAN  DAS  - 

PLAINTIFF — APPELLANT 

versus 

LEHNA  DAS  AND  OTHERS— DEFENDANTS 
— RESPONDENTS. 

Declaration,  suit  for — Temporary  mjunctiont  grant 

of 

A  temporary  injunction  can  be  granted  in  a  »uit  for 
declaration  [p  724,  col  1  ] 

Bishun  Prashad  Pathak  v  Sashi  Bhusan  Misra,  73 
Ind  Gas  294:  A.  I  R  1923  Pat  13J,  2  Pat  L  R  17, 
distinguished 

Kanshi  Ram  v.  Sharf  Dm,  65  Ind,  Gas.  161,  (1922) 
A  I  R  (L )  356,  followed 

Appeal  from  an  order  of  the  Senior  Sub- 
'Judge,  Sheikhupura,  dated  the  24th  March 
1924, 

Lala  Badri  Das,  R.  B,,for  the  Appellant. 

Mr.  Mukand  Lai  Puri,  for  the  Respond- 
ents. 

JUDGMENT,— The  question  in  this 
appeal  is  whether  the  Senior  Sab-Judge 


a  suitable   and  proper  order 
under  the  circumstances  of  the  particular 
case,  which  was  before  him.    One  Bantu 
minor  claiming  to  be  the  fourth  chela  of 
one  Nihal  Das  deceased  and  in  virtue  of 
an  oral  gift   in  his  favour  brought  this  suit 
againstcertainindividualsand  the  Shromani 
Qurdwara  Probhandak   Committee    for  a 
declaration  that  he  was  entitled  to  a  fourth 
share  as  the  joint  holding.    By  a  separate 
application  he   prayed  for  an    injunction 
restraining  the  defendant   Committee  from 
realising  rents  of  the  land  in  suit  from  the 
tenants.    The  findings  of  the  Senior  Sub- 
Judge  were  that  at  the  time  the  suit  was 
instituted,    namely,  27th    November  1922, 
the    plaintiff   was    actually    in    possession 
through  his  tenants  and  this  in  spite  of 
the  fact  that  on  the  24th  of  October  1922 
the  Collector  had  held  that  the  Committee 
was  in  possession      The  Court  further  held 
that  subsequent  to  the  institution  of  the 
suit,  the  defendant  Committee  had  taken 
possession  of  a  part  of  the  land  and  that 
the  tenants  were  willing  to  pay  rent  to  either 
side  if  and   when  a  decision  were  given 
by  a  competent  authority  as  to  who 
the  landlord.    The  Senior  Sub-Judge 
therefore,  that  the  suit  for  a  declaration 
lay,  and  that  on  these  facts  the  injunction 
prayed    for  should  not  be  given    but  he 
ordered  the  defendant  Committee  to  give 
security  for  Rs.  3,000,  per  annum  apparent- 
ly  for  an  indefinite    time  and    until  the 
case  was  finally  decided  for  the  re-payment 
of  any  rents  realised  by  them     He  pointed 
out  that  difficulties  must  arise  at  the  time 
of  making  recoveries  that  the  plaintiff  waa 
a  minor  and  the  Committee  was  a  registered 
body  with  no  funded  capital,  but  he  passed 
this  order  as  he  stated  that  he  apprehended 
that    the    grant  of  the  injunction  prayed 
for  was  likely  to  lead  to  the  mismanagement 
of  the  property  and  other  disputes.    At  the 
same  time  he  passed  a  further  order  direct- 
ing the  plaintiff  to  give  security  for  a  sum 
of  Rs.  1,500  for  the  costs  of  the  case.    No 
order  was  passed  calling  upon  the  defend- 
ant to  give  such  security  although  the  Siib- 
Judge  held    that  the  defendants    had  no 
property  beyond  the  income  derived  from 
religious  institutions  which  was  spent  on 
certain  objects  as  soon  as  it  was  realised. 

Counsel  for  the  plaintiff  appellant  points 
out  that  under  0  XXV,  r.  1.  security  could 
not  be  demanded  from  him.^  the  plaintiff, 
as  he  has  a  residence  in  British  Iidia. 
This  is  BO  and  I  set  aside  so  much  oj 


KOMARASiMI  CHETTI  V.  SUNDAR  MUDALIAR* 


[92  I.  0. 1926J 


order  as  refers  to  the  plaintiff.  So  far  as 
the  defendant  is  concerned  it  is  urged  that 
because  it  is  laid  down  in  Bishun  Prashad 
Pathak  v,  Sashi  Bhusan  Misra  (1)  that  a 
temporary  in  junction  should  not  be  grant 
ed  in  a  suit  in  which  the  ultimate  result 
would  not  be  the  granting  of  a  permanent 
injunction  or  in  other  words  that  because 
the  same  principles  govern  the  granting 
of  a  temporary  injunction  as  the  granting 
of  a  permanent  injunction  it  follows  that  a 
temporary  injunction  can  never  be  granted 
in  a  suit  for  a  declaration,  This  is  going 
too  far  and  in  Kanshi  Ram  v.  Sharf  Din 
(2)  a  temporary  injunction  was  so  granted 
in  a  suit  for  a  declaration.  The  defendant 
relies  chiefly  on  the  fact  that  mutation  has 
been  recorded  in  his  favour  but  this,  I 
think,  goes  for  very  little,  if  anything 
Against  the  finding  of  the  Sub-Judge  that 
the  plaintiff  was  in  possession  at  the  time 
of  the  institution  of  the  suit  and  the 
conduct  of  the  defendant  in  ousting  him 
to  the  extent  of  collecting  rents  from  his 
tenants  shows  that  he  is  not  entitled  to 
any  particular  sympathy.  This  case  has 
already  lasted  for  two  years  and  may  be 
Expected  to  last  very  much  longer.  A 
suggestion  made  that  both  parties  should 
agree  to  nay  all  rents  realised  by  them 
into  Courc  11  the  decision  of  the  case  is 
not  acceptable  to  the  defendant  and  under 
the  circumstances  it  appears  to  me  that 
the  peculiar  facts  of  this  case  do  justify 
the  granting  of  the  injunction  sought,  I 
am  not  passing  any  order  as  to  posses- 
sion being  given  to  the  plaintiff  by  the 
defendant  Committee,  there  is  no  ques- 
tion of  physical  possession  by  either 
party.  The  injunction  I  grant  is  to  restrain 
the  defendant  Committee  from  realising 
any  rents  due  from  the  tenants  who  are 
in  cultivating  possession  of  the  land  in 
suit, 

I  set  aside  both  orders  demanding  secu- 
rity. 

The  costs  of  this  appeal  will  be  .paid 
ty  the  respondent  Committee  to  the  appel- 
lant. 

N.  H.  Order  accordingly. 

(1). 7,1  Ind.  Gas.  294;  A.  I.  R.  1923  Pat.  133,  2  Pat, 
tuR.17, 
(2)  68  Ind,  Oae.  161;  A.  I.  R.  1922  Lah.  356, 


MADRAS  HIGH  COURT. 

AL  AGAINST  ORDER  No.   465   OF   i922, 

September  23,   1925. 
Present :  —Mr.  Justice  Devadoss 

and  Mr.  Justice  Waller. 

KOMARASAM1  CHETTI-PLAiNTiPP- 

APPRLLANT 

versus 

SUNDAR  MUDALIAR  AND  ANOTHER— 
DEPENDANTS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1008),  0  XXII,  r. 
9  (B)~- Abatement,  application  to  set  aside—Delay— 
Sufficient  cause  -Appellate  Court,  interference. 

Where  on  an  application  to  set  aside  au  abatement, 
the  Court  after  a  consideration  of  all  the  circum- 
stances holds  that  the  delay  in  making  the  applica- 
tion has  not  been  satisfactorily  accounted  for  and 
dismisses  the  application,  the  Appellate  Court  will  not 
interfere  with  the  order  of  dismissal. 

Appeal  against  an  order  of  the  District 
Court,  South  Arcot,  in  I.  A.  No.  84  of 
1922,  in  0.  8.  No.  11  of  1918,  on  the  file  of 
the  Court  of  the  Additional  Temporary  Sub- 
ordinate Judge,  Cuddalore  (0.  8.  No.  10 
of  1916  on  the  file  of  the  District  Court, 
South  Arcot). 

Mr,  T.  V.  Muthukrishna  Iyer,  for  the  Ap- 
pellant. 

Mr,  C.  Padmanabha  lyengar,  for  the  Re- 
spondents, 

JUDGMENT.— The  only  question  in 
this  appeal  is  whether  the  delay  in  pre- 
senting the  application  to  the  lower  Court 
for  setting  aside  the  abatement  should  be 
excused  or  not.  The  appellant  is  the  adopted 
son  of  the  decree  holder  who  died  on  the 
30th  January  191tf.  The  decree  was  passed 
on  the  12th  November  1918.  The  appel- 
lant applied  for  execution  of  the  decree  on 
the  2nd  November  1921.  The  District 
Judge  held  that  there  was  no  executable 
decree.  Thereupon  the  appellant  filed  the 
present  application  put  of  which  this  appeal 
arises.  His  contention  is  that  he  was  mis- 
taken as  regards  the  nature  of  the  decree 
and  he  thought  it  was  an  executable  decree 
and  that  was  why  he  did  not  make  the 
application  before  November  1921,  for  set- 
ting aside  the  abatement.  He  attained 
majority  on  the  4th  June  1921. 

From  4th  June  1921  to  2nd  November  1921 
it  does  not  appear  that  he  consulted  any 
Vakil  and  he  was  misled  by  reasou  of  the 
advice  given  by  the  Vakil.  It  is  suggested 
on  behalf  of  the  respondent  that,  inasmuch 
as  the  time  for  setting  aside  the  abatement 
had  long  passed,  the  appellant  wanted  to 
try  and  induce  the  Court  to  hold  that  the 
decree  was  an  executable  one  and  when  hi 


[«2 1  d  1936] 

found  the  Court  would  not  uphold  his  con- 
tention, he  filed  this  application.  There 
may  be  some  truth  in  this  suggestion  but 
we  are  not  satisfied  that  the  appellant  has 
satisfactorily  explained  the  delay  of  five 
months  in  presenting  this  application.  The 
lower  Court  on  a  consideration  of  the  cir- 
cumstances has  refused  to  excuse  the  delay 
in  the  case.  We  are  not  prepared  to  differ 
from  the  finding  of  the  lower  Court  that 
the  appellant  has  not  sufficiently  explained 
the  delay.  We,  therefore,  dismiss  the  appeal 
with  costs. 


BDTA  V.  OHULAM  MUHAMMAD. 


725 


V.  N.  V. 
Z.   K. 


Appeal  dismissed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  438  OF  1924. 

December  23,  1924 
Present^ — Mr.  Justice  Scott-Smith. 
BUTA  AND  OTHEKS — PLAINTIFFS — 
APPELLANTS 

versus 

OHULAM  MUHAMMAD  AND  OTHERS- 
DEFENDANTS— RESPONDENT^. 

Custom-  -Alienation — Exchange  Widow's  powers  - 
Suit  for  declaration  challenging  exchange-  Second 
appeal— Certificate,  whether  necessary  —Pun}ab  Courts 
Act  (VI  of  1918),s  41 

In  a  suit  for  a  declaration  that  an  alienation  effected 
by  a  widow  is  without  necessity  and  will  not  affect 
the  reversionary  rights  of  the  plaintiffs,  a  second 
appeal  is  competent  without  a  certificate,  aa  no  ques- 
tion of  existence  or  validity  of  a  custom  is  involved 
therein,  because  admittedly  a  widow  cannot  effect  an 
alienation  except  for  necessity 

Oostomary  prohibition  against  alienations  by  a 
widow  is  not  confined  to  cases  of  sales  and  mortgages 
but  applies  to  those  of  exchanges  as  well 

Nihali  v  Lefcna,  9  Ind  Gas  075,  2  P  R  1911;  46 
P.  L.  R.  1911,  27  P,  W  R  1911,  referred  to 

Second  appeal  from  a  decree  of  the  District 
Judge,  Jullundur,  dated  the  22nd  Decem- 
ber 1923,  reversing  that  of  the  Munsif,  First 
Class,  Nawan  Shahr,  dated  the  17th  No- 
vember 1922. 

Sheikh  Azim  Ullah>  for  the  Appellants. 

Mr.  Anant  Ramt  for  the  Respondents. 

JUDGMENT.— This  is  a  second  appeal 
from  the  order  of  the  lower  Appellate 
Court  dismissing  the  appellants1  suit  for  a 
declaration  that  an  exchange  of  certain 
land  effected  by  Musammat  Niamte,  the 
widow  of  their  collateral,  should  not  affect 
their  reversionary  rights  on  the  ground 


that  the  exchange  had  not  resulted  in  any 
detriment  to  the  estate.  Counsel  for  the 
respondents  raised  a  preliminary  objection 
to  the  effect  that  no  second  appeal  was 
competent  in  tiie  absence  of  a  certificate; 
but  there  is  no  question  as  to  the  existence 
or  validity  of  any  custom  in  this  appeal. 
Admittedly  a  widow  cannot  effect  an  alien- 
ation except  for  necessity  when  the  case  is 
governed  by  custom.  It  is  explained  in 
previous  rulings  of  this  Court  and  the 
Chief  Court.  The  land  given  in  exchange 
was  one  plot  near  the  village  abadi,  whereas 
that  received  in  exchange  consisted  of  three 
plots  at  some  distance  from  the  abadi,  and, 
therefore,  pnma  -facie  it  appears  that  the 
laud  received  in  exchange  is  less  valuable 
than  that  given,  Bat  even  supposing  that 
there  was  no  detriment  to  the  estate  still 
the  widow  could  only  make  an  exchange 
of  land  for  a  necessary  purpose.  It  was 
so  pointed  -$1  in  the  case  of  Nihali  v. 
Lehna  (l,v<  v^here  at  page  [>*  the  following 
passage  occurs  — 

*  It  is  also  urged  that  the  customary  pro- 
hibition against  alienations  by  a  widow 
only  applies  to  cases  of  sale  and  mortgage 
and  not  to  cases  of  exchange,  but  no 
authority  in  support  of  this  argument  is 
quoted,  and,  in  our  opinion,  it  is  necessity 
alone  which  can  justify  any  sort  of  alienation 
by  a  widow.  We  are  aware  of  no  authority 
to  the  effect  that  a  widow  can  make  ex- 
changes even  for  improvement.  She  is 
bound  to  preserve  the  estate,  and  it  appears 
to  us  that  to  allow  the  proposition  that  she 
can  effect  exchanges  for  the  mere  purpose 
of  improving  it  or  getting  a  large  income 
from  it,  would  be  to  open  the  door  to  all 
sorts  of  rash  speculations  and  enterprises 
which  might  prove  highly  injurious  or 
inconvenient  to  the  reversioners," 

No  authority  to  the  contrary  has  been 
cited  by  Counsel  for  the  respondents.  The 
mere  fact  that  the  two  appellants'  share  in 
the  land  exchanged  will  only  be  very  small 
does  not  appear  to  me  to  affect  their  rights 
in  any  way  Moreover,  the  other  rever- 
sioners,  who  did  not  join  in  the  suit  and 
who  have  been  made  defendants  pleaded 
that  the  exchange  was  detrimental  to  their 
rights. 

I,  therefore,  accept  the  appeal,  and  set- 
ting aside  the  order  of  the  lower  Appellate 
Court  restore  that  of  the  Trial  Court  decree- 

(1)  9  Ind  Oaa   675,  2  P  R.  1911;  46  P.  L.  P.  1911; 

27  P  W  R.  1911 

'  *Page  of  P,  R,  1911.—[1W.J 


726  bOHlSBTTI  MAMAYYA 

ing  the  plaintiffs*  claim  with  costs  through- 
out. 
R.  L.  Appeal  accepted. 

N.  H, 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No.  450  OF  1923, 

August^,  1925. 
Present: — Mr.  Justice  Devadoss 

and  Mr  Justice  Waller. 

BOHISETTI  MAMAYYA-RESPONDENT— 

APPELLANT 

versus 

THB  OFFICIAL  RECEIVER,  GUNTUR— 
PETITTONFR— RESPONDENT. 

Provincial  Insolvency  Act  (V  of  1920),  s  ,53— Fraudu- 
lent preference — Intention  of  insolvent- -Creditors 
motive,  whether  material 

In  a  case  of  fraudulent  pi eference  it  is  not  neces- 
sary for  the  Official  .Receiver  to  make  out  that  the 
property  alienated  was  undervalued.  The  gist  of 
fraudulent  preference  lies  in  preferring  one  creditor 
to  another  when  the  insolvent  is  unable  to  meet  his 
liabilities  fully 

In  such  a  case  the  Official  Receiver  has  only  to 
make  out  the  intention  of  the  insolvent.  The  intention 
or  motive  of  the  creditor  is  immaterial  Even  if  the 
creditor  takes  a  bona  fide  sale  from  the  insolvent  in 
discharge  of  a  debt  to  him,  that  does  not  make  the 
transaction  a  valid  transaction  if  the  intention  or  the 
view  of  the  insolvent  is  to  prefer  that  creditor  to 
others 

Appeal  against  an  order  of  the  District 
Court,  Guntur,  dated  the  19th  April  1923,  in 
1  A.  No.  32  of  1922,  in  I.  P.  No.  59  of  1918. 

Messrs,  S.  Varadachariar,  K.  Ramamurthy 
and  K.  Kamesiuara  Rao,  for  the  Appellant, 

Mr.  N.  Rama  Rao,  for  the  Respond- 
ent, 

JUDGMENT.— This  appeal  is  against 
the  order  of  the  District  Judge  of  Guntur 
setting  aside  the  alienation  in  favour  of 
the  appellant  made  by  the  insolvent  on 
29th  September  1918  under  Ex.  I.  Mr. 
Varadachariar,  for  the  appellants,  contends 
that  the  sale  is  a  bona  fide^  sale  for  adequate 
consideration.  The  learned  Judge  has 
attached  importance  to  the  fact  that  the 
properties  sold  were  undervalued.  In  a 
case  of  fraudulent  preference  it  is  not 
necessary  for  the  Official  Receiver  to  make 
out  that  the  property  alienated  was  under- 
valued. The  gist  of  fraudulent  preference 
lies  in  preferring  one  creditor  to  another 
when  the  insolvent  is  unable  to  meet  his 
liabilities  fully.  In  this  case  the  creditor  pre- 
sented a  petition  to  adjudicate  the  insolvent 
on  the  19th  December  1918  and  on  the  10th 
Jtfarch  1919  the  insolvent  presented  an  appli- 


V.  OFFICIAL  RECEIVER,  [92  I.  0.  1926j 

cation  for  being  adjudicated  an  insolvent, 
It  is  also  in  evidence  that  the  insolvent 
alienated  almost  all  the  properties  in  his 
possession  between  the  date  of  Ex.  I  and 
the  date  on  which  the  petition  for  adjudi- 
cation was  filed  by  the  creditor.  The  ap- 
pellant is  a  relation  of  the  insolvent,  his 
wife  being  the  niece  of  the  insolvent's  wife, 
and,  as  the  learned  Judge  remarks,  there 
was  no  pressure  by  the  appellant  on  the 
insolvent  for  the  payment  of  his  debt.  The 
consideration  for  Ex.  I  is  partly  a  debt 
due  to  the  appellant  and  partly  a  debt 
due  to  the  Bank  which  the  appellant  was 
asked  to  pay.  As  a  considerable  poition 
of  the  consideration  was  a  debt  due  to  the 
appellant,  the  sale  to  him  of  the  insolvent's 
property  was  with  a  view  to  prefer  him 
to  other  creditors.  There  is  another  cir- 
cumstance which  also  goes  to  show  that 
the  sale  was  not  a  bona  fide  sale.  The  in- 
solvent who  sold  his  duelling  house  to 
the  appellant  is  now  in  possession  of  the 
same  under  a  rental  agreement,  Ex  IX, 
taken  in  the  name  of  his  son.  A  person 
in  embarrassed  circumstances,  who  has  a 
number  of  liabilities  to  meet  does  not 
think  of  selling  his  dwelling  house  first 
unless  it  be  to  put  it  out  of  the  reach  of  his 
creditors.  The  insolvent  sold  not  only  the 
dwelling  house,  but  also  about  21  acres  of 
land  and  bricks  about  50,000  and  the 
standing  crops  which  the  learned  Judge 
values  at  Rs.  750.  All  these  are  circum- 
stances going  to  show  that  the  object  of 
the  insolvent  was  only  to  prefer  the  appel- 
lant to  other  creditors.  In  cases  of  fraud- 
ulent preferences  the  Official  Receiver  has 
only  to  make  out  the  Intention  of  the  insol- 
vent. The  intention  or  motive  of  the 
appellant  is  immaterial.  Even  if  the  credi- 
tor takes  a  bona  fide  sale  from  the  insol- 
vent in  discharge  of  a  debt  to  him,  that 
does  not  make  the  transaction  a  valid  trans- 
action if  the  intention  or  the  view  of  the 
insolvent  is  to  prefer  that  ci editor  to  others. 

We  agree  with  the  learned  Judge  in 
holding  that  the  transaction  is  void  as 
being  fraudulent  and  we  dismiss  the  appeal 
with  costs. 

v.  N.  v.  Appeal  dismissed. 

z.  K. 


[92  L  0.  1926] 

CALCUTTA  HIGH  COURT. 

APPEU,  PROM  APPELLATE  DfiOttuu  No.  It32 

OF  1923. 
June  22,  1925. 

Present :—  Mr.  Justice  Ohakravarti. 
BAIKUNTHA  NATH  KAR  AND 
ANOTUEU— - PRINCIPAL  DEFENDANTS— 
APP  BLUNTS 

versus 

ADHAR  CHANDRA  PAW— PWINTIPP 

AND  ANOTHER — Proforma  DEFENDANT — 

RESPONDENTS. 

Hindu,  Law — Minor— Do  facto  guardian,  alienation 
by,  validity  of — Burden  of  proof — Adequacy  of  p)  ice — 
Court,  duty  of. 

Under  the  Hindu  Law  an  alienation  of  a  minor's 
property  by  a  d^  facto  guardian  miy  b3  valid,  if  it  is 
othenvise  justified  Whaie,  however,  a  de  facto 
guardian  alienates  th?  minor's  property  in  the  pre- 
sence of  a  legal  guaidian,  the  Couit  mint  b-»  satisfied 
that  the  legal  guardian  refused  to  act  foi  the  minor 
and  to  protect  his  interest,  and  that  unless  the  de  facto 
guardian  acted  for  the  minor  nivpiiable  loss  to  the 
minor  would  have  been  the  result  of  tha  inaction  of 
tin  U?j,lgmi  lun  [p  7>S,  CM!  2,  p  723,  col  1J 

It  is  not  for  the  person  who  challenges  a  sale  on 
behalf  of  a  minoi  to  show  that  the  pi  ice  was  in- 
adequate, it  is  for  the  guardian  to  show  that  hs  made 
all  possible  endeavours  to  soil  the  pioperty  nt  a 
proper  pries  and  that  the  price  which  he  obtained 
waa  the  best  possible  piocuiabls  one  fp  720,  col  2  J 

In  a  case  where  the  interest  of  the  minor  is  con- 
cerned, tho  case  ought  not  to  be  decided  simply  on 
the  questions  raised  by  the  parties,  but  the  Court  has 
to  satisfy  itself,  in  the  interest  of  the  minor,  that  the 
sale  was  a  proper  sale  and  ttn  Court  must  insist  upon 
ths  purchaser  to  satisfy  it  that  circumstances  justify- 
ing a  sale  of  the  ramoi's  property  did  ically  exist 
[ibid  ] 

Appeal  agains"  a  decree  of  the  District 
Judge,  Bankura,  dated  the  10th  of  Febru- 
ary 1923,  reversing  that  of  the  Muasif, 
Second  Court,  Bishnupur,  dated  the  6th 
September  1922, 

Mr.  Mohendra  Nath  Roy  and  Babu  Charu 
Chandra  Ganyaly,  for  the  Appellants. 

Babu  Norendra  Krishna  Bose,  for  the 
Respondents. 

JUDGMENT.— The  suit  out  of  which 
this  appeal  b}7  the  principal  defendants 
arises  was  brought  by  the  plaintiff  for  a 
declaration  that  the  lands  in  suit  belonged 
to  him  and  also  for  an  injunction  staying 
sale  of  the  property  in  execution  of  a  decree 
obtained  by  the  defendants  for  money.  The 
plaintiff  alleged  that  the  property  in  suit 
consisting  of  about  3  bighas  belonged  to 
one  Baidya  Nath,  that  Baidjra  Nath  had 
borrowed  Rs.  140  from  the  plaintiff  by 
signing  a  hatchitta  and  that  on  Baidya 
Nath's  death,  plaintiff  pressed  for  payment 
of  the  money  due  to  him,  The  father  of 
the  widow  of  Baidya  Nath,  who  was  a  minor 


BAIKUNTHV  NATH  ICA3  V,  ADHAR  CHANDRA  PAIN, 


727 


acting  as  a  de  fac'o  guardian  of  the  widow 
arranged  to  pay  Ks.  ,40  in  cash  and  also 
executed  a  kobala  for  the  disputed  lands 
in  favour  of  the  plaintiff  in  satisfaction  of 
the  remaining  Rs.  100  of  the  debt.  The 
plaintiff  further  stated  that  he  was  in  pos- 
session of  the  land  m  suit  since  the  date 
of  his  kobala,  that  the  defendants  after 
the  death  of  Baidya  Nath  instituted  a  suit 
for  money  in  the  Court  of  the  Munsif  of 
Bishnupur,  that  in  execution  of  the  decree 
obtained  by  them  in  that  suit  the  lands 
covered  by  his  kobala  were  attached  and 
that  on  such  attachment  the  plaintiff  filed 
a  claim  in  the  execution  case  which,  the 
plaintiff  alleged,  was  not  registered  for 
reasons  not  known  to  him.  The  plaintiff, 
therefore,  brought  the  present  suit  for  the 
reliefs  already  stated. 

The  defendants  resisted  the  plaintiff's 
claim  and  challenged  the  plaintiff's  con- 
veyance as  a  collusive  sale  without  any 
.  consideration.  The  defendants  further 
alleged  that  the  mam  object  of  the  transfer 
was  to  defraud  the  creditors  of  Baidya 
Nath,  that  the  father  of  the  widow  of  Baidya 
Nath  was  not  hei  legal  guardian  and  that 
there  was  no  necessity  for  the  sale  of  the 
property  by  the  minor  widow  and,  therefore, 
the  sale  was  invalid  and  that  the  property 
as  belonging  to  Baidya  Nath  was  liable  to 
satisfy  the  decree  obtained  by  the  defend- 
ants. 

The  learned  Munsif  raised  several  issues 
of  which  I  shall  mention  only  two  : 

Is    the    plaintiffs  kobala  valid,  genuine 
and  for  consideration  ? 

Had  minor's  father  any  legal  right    to 
execute  the  kobala  ?    Is  it  valid  m  law  ? 

The  learned  Munsif  recorded  his  find- 
ings on  the  first  issue  in  these  terms  •  "Con- 
sidering the  evidence  on  the  record  and 
the  circumstances  of  this  case,  I  am  of 
opinion  that  the  kobala  was  without  con- 
sideration and  a  colourable  transfer  by 
which  the  plaintiff  acquired  no  rights  to 
the  disputed  land11.  In  arriving  at  this 
conclusion  the  learned  Munsif  found  that 
no  consideration  for  the  kobala  did  actual- 
ly pass.  The  learned  Munsif  disbelieved 
the  payment  of  Rs.  40  in  cash  and  he  also 
totally  disbelieved  the  story  of  any  debt  due 
under  the  hatchitta  which,  he  found,  was 
not  a  genuine  document.  In  considering 
the  bona  fides  of  the  kobala  the  learned 
Munsif,  to  quote  his  own  words,  said  as 
follows:  "It  is  significant  to  note 'that 
the  kobalat  Ex.  2  was  executed  under  80019- 


>  BAIKUNTHA  KATE  EAR  V,  ADBAtt  CHANDRA  PAIN, 


what  strange  circumstances— and  I  should 
say,  with  some  undue  haste.  Baidya  Nath 
died  on  10th  Pans.  The  stamp  for  the 
kobala  was  purchased  on  16th  Pous,  31st 
December  1920,  and  on  the  very  date  the 
kobala  was  executed.  Defendants  Nos.  1 
and  2  instituted  their  suit  on  the  3rd  Jan- 
uary, 1921,  and  the  kobala  was  registered 
on  the  8th  January,  1921.  The  attachment 
of  the  property  was  on  29th  January,  1921". 

"The  kobala  was,  therefore,  executed  only 
5  days  after  Baidya  Nath's  death  even  ac- 
cording to  plaintiff's  version.  I  find  no 
explanation  for  this  hurry  especially  when 
it  appears  that  Baidya  Nath  left  mcveables 
of  considerable  value  in  his  shop.  Evident- 
ly Baidya  Nath  was  a  shop-keeper  and  had 
a  good  stock  in  his  shop.  Defendants  have 
proved  that  these  articles  were  sold  soon 
after  his  death  and  this  kobala  was  exe- 
cuted and  also  another  arpannama  was 
executed  with  respect  to  other  properties 
of  Baidya  Nath.  These  circumstances  lead 
me  to  think  that  Ex.  2  was  a  colourable 
deed'1. 

The  learned  Munsif  further  found  that 
the  annual  yield  of  this  property  was  about 
Rs.  80  a  year,  and  that  Rs.  100  for  which 
the  plaintiff  purchased  the  property  was 
an  inadequate  value.  The  learned  Munsif 
concluded  by  a  finding  that  the  kobala  was 
really  antedated. 

As  to  the  second  point,  the  learned  Munsif 
pointed  out  that  although  the  father  of 
the  minor  was  not  the  legal  guardian  as  the 
brother  of  Baidya  Nath  who  was  the  legal 
guardian  did  not  claim  to  be  the  guardian 
of  defendant  No.  3,  the  father  although 
he  had  obtained  no  certificate  of  guardian- 
ship under  the  Guardians  and  Wards  Act 
was  a  de  facto  guardian  and  as  such  he  could 
legally  execute  a  conveyance,  subject  to  the 
restrictions  which  have  been  laid  down  in 
the  case  of  Hunoomanpersaud  Panday  v. 
Babooee  Munraj  Koomveree  (1),  On  the 
findings  which  the  learned  Munsif  had 
arrived  at,  he  dismissed  the  plaintiff's  suit 
without  entering  into  the  question  as  to 
whether  there  was  justifying  necessity  for  a 
conveyance  on  behalf  of  the  minors. 

On  appeal  by  the  plaintiff  the  learned 
District  Judge  has  reversed  the  decree  of 
the  Munsif  and  granted  a  decree  to  the 
plaintiff.  The  learned  District  Judge,  it 
appears  to  me,  came  to  the  following  con- 
clusions ;  first,  that  no  adequate  motive  for 

(1)  G  M,  I  A.  393;  18  W.  K.  61n;  Sevestre  253n:  2 
Suth,  P.  0,  J.  29;  1  War.  P.  0.  J,  552;  19  J3.  R  147. 


|92  I.  0.  1826] 

collusion  on  the  plaintiff's  part  with  the 
father  of  the  minor  has  been  disclosed  ; 
secoadly,  that  Baidya  Nath  was  indebted  to 
the  plaintiff  ;  thirdly,  that  the  price  paid  for 
the  property  was  not  inadequate  ;  fourthly, 
that  Rs.  40  was  paid  in  cash ;  that  the 
kobala  was  a  genuine  transfer  as  between 
the  plaintiff  and  the  father  of  the  minor  on 
her  behalf,  although  it  may  be  that  it  was 
intended  to  give  preference  to  the  plaintiff 
over  the  other  creditors  of  Baidya  Nath.  On 
these  findings  the  learned  District  Judge 
as  I  have  already  stated  reversed  the  decree 
of  the  learned  Munsif  and  decreed  the 
plaintiff's  suit. 

On  behalf  of  the  defendants-appellants 
Mr.  Roy  has  contended,  first,  that  the 
alienation  by  the  father,  while  the  legal 
guardian  was  the  brother,  was  invalid  ; 
secondly,  that  the  learned  District  Judge 
was  in  error  in  giving  effect  to  a  conveyance 
by  a  de  facto  guardian  and  was  in  error  in 
doing  so  without  finding  that  there  was 
any  pressure  upon  the  property  or  that 
there  was  any  legal  necessity  for  the  sale. 
It  was  further  contended  that  the  learned 
District  Judge's  finding  that  the  value  of 
the  property  was  not  inadequate  was  not 
sufficient  in  the  absence  of  a  finding  that 
the  property  was  sold  for  an  adequate  and 
full  price  for  the  benefit  of  the  minors  ; 
and  it  was  generally  contended  that  the 
findings  arrived  at  by  the  learned  District 
Judge  are  not  sufficient  in  law  to  justify 
the  upholding  of  a  sale  of  the  immoveable 
property  by  a  de  facto  guardian  of  the 
minor,  especially  in  view  of  some  of  the 
findings  by  the  Trial  Court  were  not  interfer- 
ed with  in  appeal. 

As  to  the  first  point,  the  learned  Advo- 
cate relied  upon  the  passage  in  Trevelyan 
on  Minority  at  page  93,  He  also  quoted  a 
passage  from  Macnaughten's  Principles  of 
Hindu  Law.  These  authorities  merely  lay 
down  that  husband's  heirs  are  the  legal 
guardians  of  a  minor  widow  and  the  father 
is  not.  No  authority  has,  however,  been 
cited  to  show  that  any  alienation  if  other- 
wise good  is  invalid  under  Hindu  Law, 
simply  because  the  alienation  was  made  by 
a  de  facto  guardian  and  not  by  a  guardian 
de  jure.  On  the  contrary  there  are  authori- 
ties which  show  that  an  alienation  by  a 
de  facto  guardian  may  be  valid  if  such  an 
alienation  is  otherwise  justified.  But  in  a 
case  like  this  it  is  the  duty  of  the  de  facto 
guardian  to  satisfy  the  Court  that  the  legal 
guardian  refused  to  act  for  (.he  jpinpr 


0. 1926J 


BAIKUNTHA  NATH  KAR  V.  ADHAB  CHANDRA  PAIN, 


720 


to  protect  her  interest  and  that  unless  the 
de  facto  guardian  acted  for  her,  irreparable 
loss  to  the  minor  would  have  been  the 
result  of  the  inaction  of  the  legal  guardian. 
la  this  case  Baidya  Nath's  brother  was  the 
legal  guardian  of  the  minor  widow  and  was 
her  next  reversioner  and  he  was  the  per- 
son moat  interested  in  the  payment  of 
Baidya  Nath's  debts.  The  plaintiff  has  not 
given  any  explanation  as  to  why  he  ap- 
proached the  minor's  father  and  not  her 
brother-in-law. 

As  to  the  other  questions  raised  by  the 
appellants  I  shall  deal  with  them  together 
and  not  separately,  as  it  appears  to  me  that 
the  objection  really  amounts  to  this.  The 
findings  of  the  learned  District  Judge  are 
not  sufficient  for  justifying  a  sale  by  a  de 
facto  guardian  and  that  the  learned  Dis- 
trict Judge  has  failed  to  appreciate  the 
real  points  which  arise  in  a  case  like  this 
and  consequently  the  learned  District 
Judge  has  not  considered  them  The  law 
as  to  tha  power  of  a  guardian  of  a  minor 
to  alienate  the  property  of  his  ward  was 
clearly  and  definitely  laid  down  by  the 
Judicial  Committee  of  the  Privy  Council  in 
the  case  of  Hunoomanpersaud  Panday  v. 
Babooee  Slunraj  Koonweree  (1)  At  page 
424*  their  Lordships  observed  "  The  power 
of  the  manager  for  an  infant  heir  to  charge 
an  estate  not  his  own,  is,  under  the  Hindu 
Law,  a  limited  and  qualified  power.  It  can 
only  be  exercised  rightly  in  a  case  of  need, 
9r  for  the  benefit  of  the  estate.  But  wheie, 
in  a  particular  instance,  the  charge  is  one 
that  a  prudent  owner  would  make,  in  order 
to  benefit  the  estate,  the  bona  fide  lender 
is  not  affected  by  a  precedent  mismanage- 
ment of  the  estate.  The  actual  pressure 
on  the  estate,  the  danger  to  be  averted,  or 
the  benefit  to  be  conferred  upon  it,  in  the 
particular  instance,  is  the  thing  to  be  regard- 
ed**. Now  what  are  the  circumstances  of 
this  case.  Bdidya  Nath  died  on  the  25th 
of  January  the  plaintiff  a  creditor  under  a 
hatchitta  executed  by  Baidya  Nath  pressed 
for  payment  of  the  money,  according  to 
the  plaintiff,  immediately  after  the  death 
of  Baidya  Nath  and  the  father  of  the  minor 
forthwith  agreed  to  execute  this  conveyance 
on  behalf  of  the  minor  and  sold  3  bighas 
of  paddy  lands  belonging  to  the  minor. 
The  Munsif  found  (a  finding  not  set  aside 
by  the  learned  District  Judg-)  that  Baidya 
Nath  left  considerable  moveable  properties. 
The  learned  District  Judge  does  not  con- 

"Pa$e  of  6  M  I.  "  "~~ 


sider  what  pressure  was  there  upon  the 
estate  left  by  Baidya  Nath  to  justify  a  sale 
of  the  immoveable  property.  It  is  not 
shown  and  in  fact  there  was  no  time  for 
it,  that  any  attempt  was  made  to  pay  off  the 
debt  by  sale  of  the  moveable  properties. 
The  onus  of  proof  in  a  case  like  this  is 
entirely  upon  the  purchaser  to  justify  the 
sale.  Except  proving  that  he  had  a  claim 
for  Rs.  140  and  except  showing  that  he,  as  a 
creditor  of  the  dead  man,  threatened  the 
minor  with  a  litigation  befoie  even  the 
period  of  mourning  was  over,  what  real 
necessity  has  the  plaintiff  established  for 
the  sale  of  this  land.  The  guardian  has 
given  no  explanation  as  to  whether  or  not 
it  was  possible  for  him  to  pay  this  debt 
out  of  the  moveable  properties  left  by  the 
deceased.  We  do  not  find  any  definite  in- 
formation as  to  what  the  value  of  the  stock 
in  the  shop  of  Baidya  Nath  was  ;  there  is 
no  finding  as  to  what  was  the  benefit  which 
was  conferred  upon  the  minor  by  this  sale 
in  haste  ,  nor  do  we  find  that  the  guardian 
made  any  attempt  to  find  out  if  there  was 
any  other  purchaser  willing  a  pay  a  higher 
price.  It  is  not  for  the  person  who  challenges 
the  sale  on  behalf  of  the  minor  to  ehow 
that  the  price  was  inadequate,  but  it 
was  for  the  guardian  to  show  that  he  made 
all  possible  endeavoura  to  sell  the  property 
at  a  proper  price  and  that  the  price 
which  he  obtained  was  the  best  possible 
procurable  one  In  this  case  there  was  no 
time  between  the  death  of  Baidya  Nath 
and  the  date  of  the  kobala  for  any  such 
endeavour  by  the  guardian.  In  a  case 
where  the  interest  of  the  minor  is  concern- 
ed, the  case  ought  not  to  be  decided  simply 
on  the  questions  raised  by  the  parties,  but 
the  Court  has  to  satisfy  itself,  in  the  interest 
of  the  minor,  that  the  sale  was  a  proper 
sale  and  the  Court  must  insist  upon  the 
purchaser  to  satisfy  it  that  circumstances 
justifying  a  sale  of  the  minor's  property  did 
really  exist.  In  my  opinion  the  mere  fact 
that  there  was  a  debt  to  be  paid  did  not 
justify  the  guardian  straight  off  to  sell  the 
immoveable  property  of  the  minor.  The 
learned  Vakil  for  the  respondents  relied 
upon  the  case  of  Adhar  Chandra  Dutt  v. 
Kirtibash  Bairagee  (2)  But  the  facts  of 
this  case  are  quite  different.  The  sale  was 
of  property  in  which  the  minor  owned  a 
share  in  the  joint  property  and  the  guardian 
transferred  the  minor's  share  along  with  the 
other  co  shareis  who  were  sui  juris  and  who 
(2)  6  Ind.  Cas  638,  120  L.O,5EO, 


730 


POTHI  ANNAPUHNAYY  V   POTHI  NAQARATNAMMA. 


considered  the  sale  was   necessary  and    a 
proper  one  in  the  circumstances  of  the  case, 

It  appears  that  the  fourth  issue  raised  by 
the  Munsif,  was  "  Had  the  minor's  father 
any  legal  right  to  execute  the  kobala  ?  Is 
it  valid  in  law?"  In  the  view  that  the 
learned  Munsif  took  that  there  was  no  debt 
due  to  Baidya  Nath  and  that  the  kobala  was 
not  a  genuine  document  it  was  not  neces- 
sary for  him  to  go  into  this  question.  But 
the  learned  District  Judge  having  overruled 
the  Munsif  on  that  finding  ought  to 
have  tried  this  issue  Evidently  the  learned 
District  Judge  has  overlooked  it.  I  think, 
therefore,  that  the  learned  District  Judge 
should  try  this  issue. 

It  appears  from  the  judgment  of  the 
learned  Munsif  that  the  defendants  in  their 
defence  challenged  the  conveyance  of  3 
bighas  of  paddy  lands  for  Rs.  140  on  the 
ground  that  the  price  was  grossly  inade- 
quate. The  learned  Munsif  found  that  the 
annual  yield  of  the  land  was  Rs.  80  and, 
therefore,  the  alleged  consideration  was 

frossly  inadequate.  As  I  undeistand  the 
nding  of  the  learned  District  Judge  he 
thinks,  in  spite  of  the  admission  of  the 
plaintiff  in  possession,  that  the  income  was 
about  Rs.  24  per  year  and  that  the  price 
was  not  inadequate.  Here  also  the  learned 
District  Judge  missed  the  real  point  It 
was  for  the  plaintiff  to  show  that  the  price 
was  adequate  and  the  best  obtainable. 
Here  the  price  was  less  than  six  times  the 
income  of  this  land.  In  Bengal  so  far  as  I 
know  any  price  less  than  20  tim^s  of  the 
income  would  be  inadequate.  The  plaintiff 
was  to  show  that  the  price  paid  was  fair" 
considering  the  price  prevalent  in  the 
neighbourhood. 

On  the  whole,  therefore,  I  think  that  the 
learned  District  Judge  has  not  approaches  ; 
the  case  from  a  proper  point  of  view  and 
has  misapprehended  the  real  point  for 
trial  and  has  altogether  omitted  to  try  the 
main  issue  in  the  case.  For  the  reasons 
given  in  my  judgment,  I  think  the  judg- 
ment and  decree  of  the  learned  District 
Judge  should  be  discharged  and  the  appeal 
should  be  re-heard  in  the  light  of  the  observa- 
tions made  in  my  judgment. 

The  appellants  are  entitled  to  the  costs  of 
this  appeal  and  other  ^ costs  will  abide  the 
result, 

Appeal  allowed : 

z.  K.  Case  remanded. 


L92  L  0. 

MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No,  936  OF  1923. 

August  13,  1924. 
Present: — Mr.  Justice  Jackson. 

POTHI  ANNAPURNAYYA— PLAINTJFF 

— RES*O*N  DENT— PETITIONER 


POTHI  NAGARATNAMMA  MINOR  BY 

NEXT  FRIEND  AND  FATHER  NUNE 

SUBBAYYAAND  OTHERS — PETITIONERS 
[ — DEFENDANTS  Nos.  1  TO  4 — RESPONDENTS. 

Court  Fees  Act  (VII  of  1870),  s  7  (iv)  (c)— Suits 
Valuation  Act  (VII  of  1887),  s  8— Civil  Procedure 
Code  (Act  V  of  1008),  0.  VIIt  r  1-  Suit  for  injunction 
and  appointment  of  Receiver— Valuation  for  purposes 
of  jurisdiction  and  Court- fee— Court- fee  payable. 

Order  VII,  r  1,0.  P  0  ,  requires  that  a  plaint  shall 
contain  a  statement  of  the  value  of  the  subject-matter 
of  the  Bint  for  the  purposes  of  iimsdiction  and  of 
Court-fees  It  is  not  contemplated  thpt  the  subject- 
matter  shall  be  grveii  two  values,  one  purely  arbi- 
trary and  fanciful  for  the  purposes  of  jurisdiction, 
and  one  in  strict  conformity  to  the  real  value  for  the 
purposes  of  Court-fees  [p  731,  col  1  1 

In  either  ciise  the  valuation  should  conform  to 
reality  Therefore  when  a  plaint  contains  a  valuation 
for  purposes  of  jurisdiction  it  is  a  natural  assumption 
that  the  sime  valuation  would  apply,  if  it  were  neces- 
sarv  to  have  a  valuation  for  an  ad  valotem  Court-fee. 
[ibid,] 

A  suit  for  an  injunction  and  the  appointment  of  a 
Receiver  falls  within  the  purview  of  s  7  (u)  ,o  of 
the  Court  Fees  Act,  and  under  s  8  of  the  Suits 
Valuation  Act,  the  value  of  such  a  suit  for  pui  poses 
of  Court  fees  and  jurisdiction  must  be  the  same, 
[p  731,  cols  J  &  21 

Where  in  such  a  suit  the  plaint  does  not  state 
the  valuation  put  by  the  plamtifl  upon  the  relief 
sought,  and  there  is  no  valuation  for  the  purpose  of 
computing  ad  valorem  Court-fees,  the  value  for  the 
purposes  of  jurisdiction  must  al?o  be  taken  to  be  the 
value  for  purposes  of  Court-fees  [ibid.] 

Petition  under  s.  115  of  Act  V  of  1908  and 
s.  107  of  the  Government  of  India  Act,  to 
revise  an  order  of  the  Court  of  the  Sub- 
ordinate Judge,  Bezwada,  in  C.  M.  P.  No. 
741  of  1923  in  O  S.  No.  6  of  1923. 

Mr.  P.  Satyanarayana,  for  the  Petitioner. 

Mr.  P.  Somayya,  for  the  Respondents. 

JUDGMENT*— Petition  against  the 
order  of  the  Court  of  the  Subordinate  Judge 
of  Bezwada  on  C.  M.  P.  No  741  of  1923  in 
0.  8-  No.  6  of  1923.  Petitioner  filed  a  plaint 
valued  for  the  purposes  of  juiisdiction  at 
Rs  10,000  and  with  a  Court-fee  of  Rs.  100 
on  the  assumption  that  he  was  at  liberty  to 
put  his  own  value  on  the  suit  which  was 
for  the  appointment  of  a  Receiver,  and  for 
an  injunction  restraining  the  defendant  a 
widow  from  wasting  her  estate.  In  the  light 
of  Nandan  Mai  v.  Salig  Ram  (I)  and  Aruna- 

(i)  C3  luck  C*3,  34  at  p.  36;  A.  I.  Rf  1922  Lah, 
23J, 


I.  0.  1926]       NIHAL  SINGH  V.  SECRETARY,  GURDAWARA  GURU  TEGH  BAHADUR. 


731 


chalamChetty  v.  Rangasatvmy  Pillai  (2)  the 
learned  Subordinate  Judge  haa  held  that 
plaintiff  must  pay  an  ad  valorem  fee  and 
that  is  now  admitted.  The  order  concludes: 
"In  the  present  case  he  has  valued  the  suit 
at  Rs.  10,000  for  purposes  of  jurisdiction. 
So  he  cannot  give  another  valuation  for 
purposes  of  Court- fee11.  To  this,  petitioner 
objects  urging  that  he  is  at  liberty  to  give 
another  value  for  purposes  of  Court  fee.  I 
see  from  C.  M  C.  No  942  of  l92,3  that  the 
petitioner  applied  to  amend  his  plaint  and 
the  Subordinate  Jud^e  ordered  that  he 
should  fiist  pay  the  Court- fee 

It  is  difficult  to  say  that  the  order  of  the 
Courtis  ultra  vires  or  that  he  has  exercis- 
ed his  jurisdiction  with  material  irregularity. 
Order  VIT,  r.  1  (i)  requires  that  a  plaint 
shall  contain  a  statement  of  the  value  of 
the  subject-matter  of  the  suit  for  the  pur- 
poses of  jurisdiction,  and  of  Court-fees  It 
is  not  contemplated  that  the  subject-matter 
shall  be  given  two  values,  one  puiely 
arbitrary  and  fanciful  for  the  purposes  of 
jurisdiction  and  one  in  strict  conformity  to 
the  real  value  for  the  purposes  of  C^urt  fees. 

In  either  case  the  valuation  should  con- 
form to  reality.  Therefore,  when  a  plaint 
contains  a  valuation  for  purposes  of  jurisdic- 
tion it  is  a  natural  assumption  that  the  same 
valuation  would  apply,  if  it  were  necessary 
to  have  a  valuation  for  an  ad  valorem  Court- 
fee. 

The  case  cited  by  petitioner  in  iSailendra- 
nath  Mitra  v.  Ramcharan  Pal  (3)  is  not  quite 
in  point.  There,  for  purposes  of  jurisdiction 
the  suit  had  been  valued  at  Rs.  1,200  and 
the  Court-fee  leviable  under  s  7,  sub-s  (x) 
cl.  (c),  Court  Fees  Act,  was  on  a  value  of 
Rs.  32,  It  was  held  that  Rs  32  and  not 
Rs.  1,200  was  the  value  for  the  purposes  of 
jurisdiction.  In  the  present  suit  the  Court- 
fee  leviable  under  8.  7,  cl.  (iv)  (c)  is  accord- 
ing to  the  amount  at  which  the  relief 
sought  is  valued  in  the  plaint.  Plaint- 
iff has  not  stated  the  amount,  but  as 
this  value,  whether  determined  for  the 
computation  of  Court-fees,  or  whether 
for  the  purposes  of  jurisdiction  shall  be  the 
same  (see  s.  8  Art  VII  ofrl887)t  it  is  taken  to 
be  at  Rs  10,000  the  amount  which  plaint- 
iff has  stated  for  the  purposes  of  jurisdiction 

If  the  plaintiff  had  entered  as  his  value 
for  jurisdiction  Ra  10,000  and  his  value  for 

(2)  28  Tnd.  Gas.  79,  38  M    922;  28  M.  L    J.  118; 
(1915)  M.  W.  N.  118;  17  M    L    T.  154 

(3)  66  Ind.  Gas  268;  25  0.  W  N    768:  34  C.  L,  J, 
94, 


ad  valorem  Court-fee,  say  Rs,  5,000  follow- 
ing the  ruling  in  Sailendranath  Mitva  v. 
Ramcharan  Pal  (3;  the  Court,  no  doubt, 
would  take  Rs  5,  000  as  the  value  for  pur- 
poses of  jurisdiction.  But  if  the  plaintiff 
enters  as  his  value  for  jurisdiction  Rs  10,000 
and  owing  to  his  misreading  of  the  Court 
Fees  Act  omits  an  ad  lalorem  valuation  al- 
together considering  that  the  two  valuations 
must  be  the  same,  the  Court  is  justified  in 
assuming  that  Rs  10,000  would  also  be  the 
ad  valorem  valuation 

Nor  does  plaintiff  really  contest  this  posi- 
tion, his  plea  being  meiely  one  of  fact,  that 
he  has  made  a  gross  blunder  in  giving 
Rs.  10,000  as  his  figure.  If  he  had  reckon- 
ed the  valuation  for  jurisdiction  more  care- 
fully and  put  it  say  at  Rs  5,000  or  whatever 
he  thinks  fair  he  would  have  no  objection 
at  all  to  the  Court's  carrying  that  figure  oter 
to  the  valuation  for  Court-fees 

In  the  circumstances,  I  consider  that  the 
Suboidmate  Judge  was  acting  within  his 
discretion  in  asking  petitionei  to  pay  the 
Court-fee  according  to  his  own  figuie  and 
then  if  he  wished  to  correct  any  error  in  his 
plaint  to  proceed  by  way  of  amendment, 

The  petition  is  dismissed  with  costs. 

v  N  v. 

z  K.  Petition  dismissed. 


LAHORE  HIGH  COURT. 

CIVIL  APPEAL  No  2170  OF  1924. 

January  27,  1925 

Present:— Mr  Justice  Martineau. 

NIHAL  SINGH  AND  ANOTHER— 

DEFENDANTS— APPELLANTS 

versus 

SECRETARY,  QURDAWARA  GURU 

TEGH  BAHADUR— PLAINTIFF— 

RESPONDENT. 

Limitation  Act  (IX  of  1908),  Sch.  I,  Art  62- 
Provmcial  Small  Cause.  Courts  Act  (IX  of  1887), 
Sch  71,  Arts  18, 35  (u)-  Suit  for  recovery  of  offerings 
— Limitation—Nature  of  suit— Second  appeal 

A  suit  for  the  recovery  of  offerings  of  a  shrine  from 
a  person  who  haa  wrongfully  appropriated  them  is 
governed  by  Art  62  of  Sch  I  to  the  Limitation  Act 

Ramasami  Naidu  v,  Muthusamia  Pillai,  48  Ind  Gas. 
756,  41  M  923,  35  M  1.  J  581,  (1918)  M.  W.  N  796, 
Mahabir  Prasad  v  Paisandi,  74  Ind  Gas  939,  21  A. 
L  J  345,  45  A  410,  AIR  1923  All  532  and  Biman 
Chandra  Dutta  v  Promotho  Nath  Ghose,  68  Ind.  Gas 
94;  49  C  886,  36  0  L.  J  295,  A  I  R.  1922  Cal.  157, 
referred  to. 

Such  a  suit  as  the  above  falls  under  Art  18  of  the 
^13 1  il )  to  the  Provincial  Small  Cause  Cowts 


CMANUOO  V.  MUKLIDHAR. 


[921.  0.19» 


Act  as  it  relates  to  a  trust,  and  also  probably  under 
Art.  35  (ti),  BO  that  it  is  an  unclaesed  euit,  and  not  a 
small  causs,  and  a  second  appeal,  theref jre,  lies 

Appeal  from  an  order  of  the  District 
Judge,  Hoshiarpur,  dated  the  10th  July 
1924,  remanding  that  of  the  Sub  Judge, 
Fourth  Class,  Una,  dated  the  23rd  February 
1923. 

Lala  Fakir  Chand>  for  the  Appellants. 

Sheikh  Niaz  Mahomed,  for  the  Respond- 
ents. 

JUDGMENT.— The  plaintiff  in  this 
case,  who  is  the  Secretary  of  the  Qurdwara 
Guru  Tegh  Bahadur  at  Anandpur,  sues  to 
recover  the  sum  of  Rs.  299  2  3  said  to  have 
been  received  by  the  2nd  defendant  as  an 
agent  of  the  1st  defendant  from  the  Nabha 
State  as  an  offering  for  the  shrine  during 
the  period  from  the  12th  April  1913  to  the 
12j;h  April  1918.  The  Trial  Court  dismissed 
the  suit  as  barred  by  limitation  under 
Art.  62  of  the  First  Schedule  to  the  Limi- 
tation Act,  but  the  Additional  Judge,  on 
appeal,  has  held  that  the  case  is  governed 
by  Art,  89  and  has  remanded  it  for  deci- 
sion on  the  merits.  The  defendants  had 
filed  a  second  appeal. 

Counsel  for  the  respondent  has  taken  a 
preliminary  objection  that  the  suit  is  a 
small  cause  of  a  less  than  Rs.  500  in  value 
and,  theref  ore,  no  second  appeal  lies.  The 
suit,  however,  falls  under  Art.  18  of  the 
Second  Schedule  to  the  Provincial  Small 
Cause  Courts  Act  as  it  relates  to  a  trust, 
and  also  probably  under  Art.  35  (ii),  so  that 
it  is  an  unclassed  suit,  and  not  a  small 
cause,  and  a  second  appeal,  therefore,  lies. 

The  lower  Appellate  Court  is  wrong  in 
applying  to  the  case  Art.  89  of  the  First 
Schedule  to  the  Limitation  Act,  as  there  is 
no  allegation  by  the  plaintiff  that  either  of 
the  defendants  was  his  agent  The  ques- 
tion remains  whether  Art.  62  applies. 

For  the  respondent  Ramasami  Naidu  v. 
Muthusamia  Pillai  (1)  is  cited  in  which  it 
was  held  that  in  an  action  for  money  had 
and  received  there  must  be  privity  of  a 
legal  recognizable  nature  between  the 
plaintiff  and  the  defendant  It  ap- 
pears that  there  is  such  privity  existing 
in  this  case,  as  the  defendants,  according 
to  the  plaintiff,  held  the  money  in  trust 
for  the  shrine.  In  Mahabir  Prasad  v.  Par- 
sandi  (2)  where  rent  of  property  was  re- 


(1)  48  Ind    Ois  755;  41  M.  923;  35    M.    L  J.  581; 
(1918)  M    W.  N.  796 

(2)  74  Ind    Cas  939;   21  A   L.  J    345;    45  A.  410; 
A,  L  R,  1923  All,  5». 


covered  by  a  person  not  entitle4  in  law  to 
recover  it,  it  was  held  that  he  must  be 
deemed  to  have  realised  the  money  for 
the  real  owner's  use;  and  in  Biman Chandra 
Dutla  v.  Promotho  Nath  Ghose  (3;  was  held 
that  the  form  of  suit  indicated  by  Art.  62 
was  applicable  where  the  defendant  had 
received  money  which  in  justice  and  equity 
belonged  to  the  plaintiff  under  such  cir- 
cumstances as  in  law  rendered  the  receipt 
of  it  a  receipt  by  the  defendant  to  the  use 
of  the  plaintiff. 

I  agree,  therefore,  with  the  view  of  the 
Sub-Judge,  that  the  suit  is  governed  by 
Art.  62  and  is  consequently  barred  by 
limitation.  I  accept  the  appeal,  reverse  the 
decree  of  the  Additional  Judge,  and  restore 
that  of  the  Sub-Judge  dismissing  the  suit: 
The  respondent  will  pay  the  appellant's 
costs  throughout. 

N,  H.  Appeal  accepted. 

(3)  68  Ind  Cas  94,  49  C,  886,  36  0.  L  J.  205;  A.  I. 
R.  1922  Cal,  157. 


OUDH  CHIEF  COURT. 

FIKST  MISCELLANEOUS  APPEAL  No.  53 

OF  1925. 

December  16,  1225. 
Present:— -Mr.  Justice  Ashworth  and 

Mr.  Justice  Misra. 
CHANDOO— APPELLANT 

versus 
MURLIDHAR  AND  OTHERS  -RESPONDENTS. 

Estoppel  —  Compromise  —  Execution  proceedings— 
Civil  Procedure  Code  (Act  V  of  190$ /,  0  XXI,  rr.  89,  90. 

A  judgment-debtor  filed  an  application  under  0. 
XXI,  r  90,  0  P.  0,  for  withholding  confirmation  of 
the  sale  in  execution  owing  to  certain  irregularities. 
Subsequently  he  applied  under  r,  80  for  leave  to 
avoid  the  sale  by  deposit  of  5  per  cent,  of  tha  pur- 
chaser oney.  Both  applications  came  for  hearing  on 
the  same  day,  and  the  Pleader  for  the  purchaser  re- 
presented that  the  judgment-debtor  could  not  main- 
tain his  second  application  unless  he  withdrew  hie 
first  one.  The  judgment-debtor,  thereupon,  withdrew 
his  application  under  r,  90  and  his  application  under 
r,  89  was  granted  by  the  Court.  Pp.  733,  cols.  1  &  2.] 

It  was  urged  by  the  purchaser  In  appeal  that  the 
application  under  r.  89,  made  in  the  presence  of  the 
application  under  r.  90,  being  void  ab  initio,  the 
withdrawal  of  the  application  under  r  90  would 
only  leave  it  open  to  the  judgment-debtor  to  make  a 
new  application  under  r.  89.  He  could  not  ly  with- 
drawal of  his  application  under  r.  90  give  retros- 
pective validity  to  his  application  under  r.  89  : 

Held,  that  the  appellant  was  not  entitled  to  call  in 
question  the  order  of  the  lower  Qourt  allowing  the 


CHANDOO  V.  MTJfcLIDHAft. 


> 

respondents1  application  under  r.  89  in  the  light  of 
the  statement  of  his  Pleader  which  statement  either 
amounted  to  a  compromise  in  the  proceedings  or  to 
an  admission  which  would  estop  the  applicant  from 
questioning  the  validity  of  the  Court's  order  [p  735, 
col.  1  ] 

Appeal  against  an  order  of  the  Subordi- 
nate Judge,  Mohanlalgimj,  (Lucknow), 
dated  the  4th 'April  1925. 

Mr.  Zahur  Ahmad,  for  the  Appellant. 

Messrs.  Ram  Bhroselal,  R.  N.  Shukla, 
Raj  Bahadur,  M,  Wasim  and  Mahesh 
Prasad,  for  the  Respondents. 

JUDGMENT.— This  is  an  appeal  by 
an  auction-purchaser,  Chandoo,  from  an 
order  of  the  lower  Court  allowing  the  judg- 
ment-debtor's application  under  O  XXI, 
r.  89  of  the  0.  P.  0  ,  to  have  the  sale  set  aside 
on  deposit  by  him  of  a  sum  equal  to  5  per 
cent,  of  the  purchase-money. 

The  facts  of  the  case  are  as  follows* — 
The  decree  in  respect  of  which  the  sale, 
or  alleged  sale,  took  place  is  dated  the 
28th  July  Iyl9,  and  was  a  decree  for  sale 
on  the  basis  of  a  mortgage.  The  prelimi- 
nary decree  was  made  absolute  nearly 
two  years  later  on  the  22nd  July  1921. 
The  application  for  execution  by  sale  was 
made  by  the  decree  holder  on  the  4th  July 
1923.  The  actual  holding  of  the  auction- 
sale  continued  from  the  16th  to  the  25th 
February  1925.  On  the  9th  of  March  1925, 
Murli  Dhar,  a  judgment-debtor  by  transfer 
of  a  portion  of  the  interest  of  the  original 
judgment-debtor  filed  an  application  under 
0.  XXI,  r.  90,  that  the  sale  was  invalid 
owing  to  the  property  having  been  sold 
in  one  lot  contrary  to  the  orders  of  the 
Court,  and  owing  to  other  irregularities. 
Five  days  later  he  added  a  further  reason 
for  withholding  confirmation  of  the  sale, 
that  in  fact  no  sale  had  taken  place.  The 
28th  of  March  1925  was  fixed  for  hearing 
this  application  under  r.  SO.  Before  that 
date  arrived,  namely,  on  the  24th  March 
1925,  the  judgment-debtor,  Karitn  Bux, 
applied  unaer  r.  89  for  leave  to  avoid  the 
sale  by  deposit  of  5  per  cent  of  the  pur- 
chase-money. On  the  28th  of  March,  both 
the  application  under  r.  90  and  that  under 
r.  89  were  put  up  before  the  Court,  and 
the  hearing  in  respect  of  them  was  ad- 
journed to  the  4th  April.  On  that  date, 
the  parties  appeared,  one  B.  Ganga  Dayal 
Khare  appearing  as  Pleader  for  the  pur- 
chaser, the  present  appellant.  This  Pleader 
represented  that  the  judgment-debtor  could 


not  maintain  his  application  for  avoidance 
by  deposit  under  r.  89  unless  he  withdrew 
Ins  application  under  r.  90.  The  judgment- 
debtor  Murli  Dhar,  thereupon,  withdrew 
his  application  under  r.  90  and  his  appli- 
cation under  r.  89  was  granted  by  the 
Court.  It  is  against  this  order  of  the 
Court  that  the  present  appeal  is  prefer- 
red. 

In  this  appeal  the  first  point  raised  by 
the  appellant  purchaser  is  that  he  is  not 
bound  by  anything  stated  to  the  Court  on 
the  4th  April  by  Ganga  Dayal  Khaie, 
inasmuch  as  that  Pleader  had  no  authority 
from  him  to  appear  for  him  on  that  day, 
or  make  any  representation.  The  argu- 
ment is,  that  Ganga  Dayal  Khare  was  merely 
engaged  on  the  14th  March  1925  to  resist 
tho  application  under  r.  90,  and  that  he 
had  no  authority  to  agree  to  the  granting 
of  the  application  under  r.  89.  We  con- 
sider that  there  is  no  force  in  this  objec- 
tion The  vakalatnama  of  Ganga  Dayal 
Khare  shows  that  he  was  engaged  for  "dawa 
uiurdari  ijrai  digri",  that  is  to  say  in  res- 
pect of  the  objection  of  the  execution  of 
the  decree.  We  consider  that  this  langu- 
age was  quite  wide  enough  to  justify 
Ganga  Dayai  Khare  in  appearing,  not  only 
in  connection  with  the  application  under 
r.  90,  but  also  in  connection  with  the  ap- 
plication under  r.  89.  As  both  applications 
were  heard  together  and  on  the  same  day, 
it  would,  as  a  matter  of  fact,  have  been 
impossible  for  him  to  appear  in  respect  of 
one  without  appearing  in  the  other. 

The  next  ground  raised  by  the  appellant 
is  that  any  admission  or  statement  made  by 
Ganga  Dayal  Khare  on  the  4th  April 
was  merely  an  expression  of  his  opinion  as 
to  the  law,  That  opinion,  so  far  as  it  can 
be  construed  as  an  admission  that  the  appli- 
cation under  r  89  was  in  order  and  valid, 
was  incoriect,  and  a  party  can  not  te  bound 
by  any  admission  of  his  Pleader  as  to  law, 
inasmuch  as  the  parties  must  be  presumed 
to  know  what  is  correct  law.  Another 
objection  taken  is  that  no  statement  by 
Ganga  Dayal  Khare  can  be  held  to  be  an 
estoppel  against  the  appellant,  inasmuch  as 
estoppel  cannot  be  invoked  to  defeat  any 
expressed  provision  of  the  law.  It  is  urged 
that  the  application  under  r.  90  was  void 
ab  initio  by  reason  of  cl.  (2)  of  r.  89,  which 
enacts  not  merelv  that  a  person  may  not 
prosecute  an  application  under  r.  89  with- 
out withdrawing  his  previous  application 
under  r,  90,  but  provides  that  he  may  not 


734 


OHANDOO  V.  MURLIDHAR. 


ihake  such  an  application.  It  is  urged 
agaia  that  the  application  under  r.  89  made 
oa  the  24th  March  1925  having  been  invalid 
for  this  reason  on  that  date,  the  withdrawal 
of  tjie  application  under  r.  90  would  only 
leave  it  open  to  the  judgment-debtor  to 
make  a  new  application  under  r.  89.  He 
could  not  by  withdrawal  of  his  application 
under  r.  90  give  retrospective  validity  to 
his  application  under  r.  89.  On  the  9th 
April  the  time  had  elapsed  within  which 
the  judgment-debtor  could  make  any  ap- 
plication under  r.  #9.  Now  we  are  not 
disposed  to  deny  the  correctness  of  the 
two  propositions  of  law,  that  an  estoppel 
cannot  be  invoked  to  defeat  an  express 
provision  of  law,  or  that  no  compromise 
or  agreementfcan  preventethe  law  of  limita- 
tion f rom  taking  effect.  We  are,  however, 
of  the  opinion  that  neither  of  these  proposi- 
tions of  law  are  relevant  to  the  present 
case,  in  view  of  the  construction  which  we 
place  upon  the  lower  Court's  order  of  the 
4th  April  1925.  That  order  runs  as  fol- 
lows:— 

"B.  Parbhu  Dayal,  Pleader,  states  that 
the  money  deposited  by  the  J.  D.  is  suffi- 
cient, and  that  the  deposit  was  made  within 
time.  B>  Ganga  Dayal  Khare  Pleader  dittos 
the  statement  of  D.  H.'s  Pleader.  He,  how- 
ever, urges  that  the  J.  D.  cannot  deposit 
the  money,  unless  he  withdraws  his  petition 
under  0.  XXI,  r.  90,  0.  P.O.  As  he  has 
already  deposited  the  money  so  he  cannot 
take  advantage  of  the  section.  If  he  with- 
draws the  petition  under  O.  XXI,  r.  90  he 
can  take  advantage  of  the  deposit.11 

"Murli  Dhar  J.  D.  states  that  his  petition 
under  0.  XXI,  r.  90  may  be  dismissed  under 
the  circumstances." 

"Murli  Dhar  J.  D.  has  deposited  the 
decretal  amount  plus  5  per  cent,  of  the  pur- 
chase-money in  Court  within  the  period 
prescribed  by  law  under  O.  XXI,  r.  69,  C. 
P.  C.  The  sale  is,  therefore,  set  aside. 
The  surplus,  if  any,  will  be  returned  to  the 
J.  D.  (i.  e ,  Murli  Dhar)11. 

It  will  be  observed  that  the  words  "if  he 
withdraws  the  petition  under  0.  XXI,  r, 
90  he  can  take  advantage  of  the  deposit11 
are  ambiguous,  if  we  look  at  the  circum- 
stances of  the  case.  When  we  consider 
that  the  two  applications  were  up  before 
the  Court,  these  words  leave  it  doubtful 
whether  they  should  be  construed  to  mean 
that  the  purchaser's  Pleader  was  merely 
expressing  an  opiuion  on  the  law,  or  was 
ia  effect  agreeing  to  withdraw  objection  of 


[92  I.  0.  1928] 

the  application  under  r.  89,  if  the  appli- 
cation under  r  90  dropped.  As  this  am- 
biguity is  a  latent  one,  we  are  entitled  to 
go  to  outside  evidence  to  decide  Which 
meaning  should  be  attached  to  the  words. 
When  we  do  so,  we  can  have  no  doubt 
that  the  latter  interpretation  is  the  true 
one.  An  objection  had  been  taken  by  the 
judgment-debtor  and  by  would-be  purchaser 
that  there  had  in  effect  been  no  sale. 
When  we  look  at  the  proceedings,  there 
appears  to  be  on  the  face  of  the  record  a 
strong  probability  that  this  was  so.  The 
nazir,  who  was  the  auctioner,  had  reported 
on  the  24th  of  February  the  two  highest 
bids.  The  Court  passed  an  order  accepting 
the  highest  bid,  whereas  the  proper  order 
should  have  been  that  the  nazir  should 
make  one  last  offer  in  open  sale,  and  accept 
the  highest  bid  if  any  better  offer  were 
given.  It  must  have  been  observed  to  the 
appellant  purchaser  that  he  ran  a  great  risk 
of  the  sale  being  declared  invalid,  in  which 
case  he  would  derive  no  advantage  from 
the  property  having  been  knocked  down 
to  him  at  a  low  figure.  By  withdrawing 
opposition  to  the  application  under  r.  89, 
he  would  at  any  rate  get  5  per  cent,  of  the 
purchase  price  tendered  by  him.  It  is  to 
be  observed  that  the  order  of  the  lower 
Court,  which  we  have  just  quoted,  does  not 
contain  any  reference  to  the  fact  that  the 
application  under  r,  89  was  invalid  in  its 
inception  by  reason  of  the  previous  appli- 
cation under  r.  90,  nor  does  it  contain  any 
reference  to  the  question  of  limitation. 
We,  therefore,  construe  this  order  of  the 
Judge  to  mean  that  the  purchaser  with- 
diew  all  contest,  in  other  words  confessed 
judgment  in  respect  of  the  application 
under  r.  89.  So  construed  no  legal  ques- 
tion arose.  It  is  incorrect  to  suggest  that, 
where  a  compromise  or  confession  of  judg- 
ment prevents  any  consideration  of  legal 
bars,  it  is  invalid  on  the  ground  that,  if 
the  legal  question  had  been  gone  into,  a 
legal  bar  would  have  been  obvious. 

Whether  we  are  to  regard  the  order  of  the 
lower  Court  in  the  light  of  an  order  recording 
a  compromise  under  O.  XXIII,  r.  3,  or  merely 
as  the  recording  of  a  statement  of , the  pur* 
chaser,  which  would  operate*  as  an  estoppel, 
appears  to  us  of  small  moment.  There 
does  not  appear  any  reason  why  it  should 
not  be  regarded  in  the  light  of  the  former, 
Order  XXXIII,  r.  3  applies  to  suits,  but 
under  s.  141  of  the  Code  the  procedure 
applicable  to  suits,  as  far  as  it  can, 


(92  I.  0,  1926]  OHANDBABHAGA  BAI 

b^Tttftde  applicable  in  miscellaneous  pro- 
ceedings. 

Our  finding  then  is  that  the  appellant 
is  not  entitled  to  call  in  question  the  order 
of  the  lower  Court  allowing  the  respond- 
ents* application  under  r.  89  in  the  light 
of  the  statement  of  his  Pleader  made  on 
the  4th  April,  which  statement  either 
amounted  to  a  compromise  in  the  proceed- 
ings or  to  an  admission  which  would  estop 
the  applicant  from  questioning  the  validity 
of  the  Court's  order. 

For  these  reasons  we  dismiss  this  appeal 
with  (Josts. 

N.  H.  Appeal  dismissed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  REVISION  No.  173  OF  1925. 

Decembers,  1925. 

Present; — Mr.  Findlay,  Officiating  J.  C. 
CHANDRABHAGA  BAI  AND  ANOTHER— 
PLAINTIFFS—APPLICANTS 

versus 
BAKARAM — DEFENDANT — NON-APPLICANT. 

Provincial  Small  Cause  Courts  Act  (IX  of  1887) t 
25 — Order  returning  plaint —Title  to  irmnoveable 
property  involved — Erroneous  finding— Revision-- In- 
terference by  High  Court. 

A  High  Court  ia  entitled  to  interfere  in  revision 
undei  s  25  of  the  Provincial  iSmali  Cause  Courts  Act 
with  an  older  le turning  a  plaint  for  preaeiitatioii  to 
the  proper  Court 

Undei  this  section  the  duty  o£  the  High  Couit  is  to 
see  whether  the  particular  decree  or  oidei  complained 
of  is  according  to  law 

A  Small  Cause  Court  fails  to  exeici&o  a  jurisdiction 
vested  m  it  in  returning  a  plaint  for  presentation  to 
the  proper  Couit  on  the  giound  that  the  plamtift's 
success  or  failure  in  the  suit  depended  upon  a  question 
of  proof  or  disproof  of  title  to  immoveable  property, 
wheie  the  question  of  title  does  not  leally  arise 

Application  for  revision  ot  an  older 
of  the  Judge,  Small  Cause  Court,  Nagpur, 
dated  the  23rd  April  1925,  in  Civil  Suit 
No.  268  of  1925, 

Mr.  M.  R.  #o6de,forthe  Applicants. 
'  ORDER.— The  plain  tiff- applicant  No.  1, 
the  widow  of  Nago's  case  was  that  her 
husband  bad  let  the  house  in  suit  to  the 
non-applicant  Bakaram.  The  non-appli- 
cant's case  was  that  Nago's  aunt  Musammat 
Mani  was  presumably  the  landlord.  The 
lower  Court,  in  view  of  this  conflict,  held 
tfrat  the  question  of  relief  in  the  suit 


V.  BAKARAM.  735 

depended  on  the  proof  or  disproof  of  title 
to  the  immoveable  property  and  according- 
ly returned  the  plaint  to  the  plaintiff  for 
submission  to  an  ordinary  Civil  Couit. 

1  think  this  action  on  the  part  of  the 
Small  Cause  Court  was  quite  premature 
until  the  Judge  thereof  had  definitely  ad- 
judicated upon  the  question  of  who  the 
non-applicant's  lessor  was  On  that  point 
there  might  have  been  at  least  two  findings, 
if  not  more,  viz  ,  that  Nago  wa^  the  lessor 
or  that  Musammat  Mani  was  the  lessor.  On 
either  alternative  an  entirely  different  eet 
of  legal  incidents  would  arise  If  Nago 
was  lessor,  a  presumption  might  arise 
under  s  116  of  the  Indian  Evidence  Act. 
If  Musammat  Mani  was  the  lessor,  it  is 
possible  although  not  inevitable,  that  it 
might  be  found  necessary  to  send  the  case 
to  the  ordinary  Civil  Court  Moreover,  in 
this  connection  even  if  Musammat  Mani  was 
the  actual  owner  but  the  lease  had  been 
taken  actually  from  Nago  and  if  possession 
had  been  given  by  him  and  rent  paid  to 
him,  the  question  of  whether  the  defendant 
was  entitled  to  put  forward  the  defence 
which  she  did  in  the  present  case,  would 
still  require  consideration:  c/.,  Meer  Jangoo 
v.  Chote  Sahib  (1)  and  Prabhat  Chandra 
Chatterji  v  Bi]oy  Chand  Mahatap  (2), 

It  is,  however,  urged  on  behalf  of  the 
non-applicant  that  even  if  the  lower  Court 
exercised  a  wrong  discretion  in  returning 
the  plaint  as  it  did,  this  Court  is  not 
entitled  to  inteifere  on  the  revisional  side, 
The  decision  in  Subalram  Dutt  v*  Jagra* 
dananda  Majumdar  (3;  has  been  quoted  in 
support  of  this  position.  Personally,  with 
all  respect  1  am  not  prepared  to  follow  this 
decision,  I  prefei  the  view  taken  in  the 
later  case  of  Umesh  Chandra  Paladhi  v. 
Rakhal  Chandra  Chatter  jee  (4).  The  other 
view  seems  to  me  to  put  an  unnecessarily 
arbitrary  meaning  on  the  word  4i  decided  " 
in  s  25  of  the  Provincial  Small  Cause 
Courts  Act.  Even,  however,  apart  fiom 
this  the  order  of  the  Small  Cause  Court, 
of  which  revision  is  now  sought,  decides 
the  case  finally  so  far  as  that  Court  is  con- 
cerned 

I  may  point  out  further  here  that  under 
s,  25  the  duty  of  this  Court  is  to  see 


(1)  8  Ind  Cas.  1124,  G  N.  L  R.  161 

(2)  75  lad    Cas,  89,   50  C.  572,  A  I. 

" 


1924   Cat 


84" 


(3)  1  Ind  Cas  288,  13  C  \V  N  403 

(l;  10  Ind,  Cae.  8,  15  0.  W.  N,  CC6,  14  0  L.  J, 

m. 


736 


MO.  PO  KIN  *.  MO.  PO  OH, 


whether  the  particular  decree  or  order 
com  plained  of  was  according  to  law.  Now, 
if  the  Judge  of  the  lower  Court  was  wrong 
in  holding  that  the  plaintiff's  success  or 
failure  in  this  suit  depended  upon  a  ques- 
tion of  proof  or  disproof  of  title  to  immove- 
able  property,  it  seems  to  me  indubitably 
to  follow  that  the  Court  failed  to  exercise 
a  jurisdiction  vested  in  it  in  returning  the 
plaint  as  it  did.  From  this  point  of  view, 
therefore,  the  order  cannot  be  said  to  be 
according  to  law.  I  am,  therefore,  of 
opinion  that  it  is  open  to  this  Court  to 
interfere  in  the  circumstances  of  the  pre- 
sent case. 

The  order  of  the  lower  Court,  dated  23rd 
April  1925,  is  accordingly  reversed  and  the 
suit  is  remanded  to  that  Court  for  dis- 
posal on  the  merits  with  advertence  to  the 
above. 

z.  K.  Case  remanded. 


RANGOON  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  437  OP  1924. 

May  22,  1925. 
Present : — Mr.  Justice  Das. 

MQ.  PO  KIN  AND  OTHERS — APPELLANTS 

versus 
MG.  PO  OH  AND  ANOTHER—RESPONDENTS. 

Limitation  Act  (IX  of  1908),  Sch.  I,  Art.  120— Suit 
for  specific  performance,  dismissal  of— Suit  to  recover 
loan— Limitation. 

Defendant  handed  over  a  piece  of  land  to  the  plaint- 
iff aa  security  for  a  loan,  the  agreement  between  the 
parties  being  that  if  the  defendant  failed  to  re-pay  the 
loan  within  three  years,  the  land  would  be  conveyed 
to  the  plaintiff,  Plaintiff  continued  in  possession  of 
the  land  and  after  the  expiry  of  the  three  years  filed 
a  suit  for  specific  performance  of  the  agreement  to 
convey,  which  was  dismissed.  f  He  then  brought  a  suit 
to  recover  the  amount  of  the 'loan: 

Held,  that  the  suit  was  governed  by  Art.  J20  of 
Sch.  I  to  the  Limitation  Act,  and  that  the  cause  of 
action  arose  when  the  suit  for  specific  performance 
was  dismissed. 

Second  appeal  from  a  decree  of  the  Dis- 
trict Court,  Payapon,  in  Civil  Appeal  No.  46 
of  1924. 

Mr,  Ankel$ariat  for  the  Appellants. 

Mr.  Ba  Tin,  for  the  Respondents. 

JUDQMENT.--The  point  for  de- 
termination in  this  case  is  whether  the  suit 
is  barred  by  limitation. 

This  was  a  suit  for  the  recovery  of  Rs.  1,1 88 
from  the  defendants.  The  facts  relevant 
to  the  present  case  are  as  follows:  There 
was  a  sum  of  Rs.  1,188  due  to  the  plaintiff 
for  moneys  advanced  to  the  defendants 
from  time  to  time.  In  1916  the  defendants 


purported  to  hand  over  a  piece  of 
the  plaintiff  as  security  for  this  loan,  and 
the  agreement  between  the  parties  was  that 
if  tlie defendants  failed  to  re-pay  the  said 
sum  within  three  yeais,  the  land  would 
be  conveyed  to  the  plaintiff,  The  defend- 
ants failed  to  re-pay  the  money  within  three 
years,  and  the  land  remained  in  the  posses- 
sion of  the  plaintiff.  In  1920  the  present 
appellant  filed  a  suit,  being  Suit  No.  81,  to 
recover  possession  of  the  land,  It  may  be 
stated  here  that  there  was  no  document 
evidencing  the  mortgage  of  the  land  to  the 
present  plaintiff.  The  respondents  also 
filed  a  suit,  being  Suit  No.  116  of  1920  for 
specific  performance  of  the  agreement  by 
which  the  defendants  had  agreed  to  convey 
the  land  to  the  plaintiff  on  their  failure  to 
redeem  within  three  years.  Both  suits  were 
heard  together  and  ultimately  the  High 
Court  in  Special  Second  Civil  Appeal  No.  26 
of  1922  decided  that,  as  there  was.no  docu- 
ment of  mortgage,  the  present  appellant  was 
entitled  to  get  back  possession  of  the  land 
because  he  was  admittedly  the  original 
owner  of  the  land,  and  dismissed  the  present 
plaintiff's  suit.  The  respondents  then  filed 
the  present  suit  for  the  recovery  of  this 
sum  of  Rs.  1,188. 

The  appellant's  contention  is  that  the 
suit  is  barred  by  limitation.  His  case  is 
that  as  the  cause  of  action  for  the  recovery 
of  the  money  arose  in  1919,  the  three  years 
had  expired,  and  that  the  suit  is,  therefore, 
barred.  His  case  is  that  Arts  62,  115  and 
97  of  the  Limitation  Act  apply  and  that 
under  any  of  these  articles  the  suit  is 
barred. 

The  respondent's  contention  is  that  either 
Art.  97  or  Art,  120  applies  to  the  facts  of 
the  case. 

There  can  be  no  question  that,  if  there 
is  no  specific  Article  of  the  Limitation  Act 
applying  to  the  facts  of  this  case,  the  only 
Article  that  could  apply  would  be  Art.  120, 
and,  if  Art.  120  applies,  it  is  admitted  that 
the  suit  is  within  time.  I  am  of  opinion 
that  Art.  120  applies  to  the  facts  of  the  case* 
Even  if  Art.  97  be  held  to  apply  I  think  the 
suit  would  still  be  within  time  because  it  is 
only  after  the  decision  of  the  High  Court 
that  the  cause  of  action  for  the  present  suits 
can  be  said  to  arise.  The  judgment  of  the 
High  Court  was  delivered  on  the  8th  Janu- 
ary Iy23« 

The  appeal  is,  therefore,  dismissed  with 
costs. 

2.  K,  Appeal 


MCDONNELL  V.  BMP&ROR. 


737 


RANGOON  HIGH  COURT. 

CRIMINAL  MISCELLANEOUS  APPLICATION 

No.  51  OF  1925, 

July  20,  1925. 

Present. — Mr.  Justice  Ru Hedge,  Chief 

Justice,  and  Mr.  Justice  Brown. 
T.  P.  R.  MoDONSTELL— PJBTITIONBB 

versus 
EMPEROR— OPPOSITE  PARTY 

Penal  Code  (Act  XLV  of  I860),  ss.  W,  Excep  9, 
500 — Defamation — Statement  made  by  Advocate,  whc~ 
ther  privileged  -  Absolute  privilege,  doctrine  of,  whe- 
ther applicable—  Malice  t  proof  of — Advocate,  position 
and  duties  of 

Section  499  of  the  Penal  Code  is  meant  to  he 
universal  and  the  English  Law  of  absolute  privilege 
does  not  apply  in  this  country  to  statements  of  Ad- 
vocates in  judicial  proceedings  [p  738,  col  2  ] 

It  is,  however,  for  the  public  good  that  a  person 
charged  with  ths  responsibility  of  an  Advocate  should, 
so  far  as  may  be,  feel  unfettered  by  any  control  other 
than  that  of  the  Presiding  Judge,  in  the  use  of  eveiv 
weapon  placed  at  his  disposal  by  the  law  for  the 
defence  of  the  liberty  of  his  client  [p  7,59,  col  2  ] 

Exception  9  to  s  499  of  the  Penal  Code  must, 
therefore,  be-  interpreted  accordingly,  and  it  is  the 
duty  of  a  Court  when  a  complaint  is  made  against  mi 
Advocate  or  T  egal  Practitioner  for  defamation  that  it 
should  presume  that  the  remark  was  made  on  instruc- 
tions and  in  good  faith ,  and  unless  circumstances 
clearly  show  that  it  was  made  wantonly,  or  from 
malicious  or  private  motives,  the  complaint  should  not 
be  entertained  [ibid  ] 

Even  if  the  circumstances  suggest  recklessness  or 
malice,  further  enquiry  should  be  made  and  an 
opportunity,  if  possible,  should  be  given  to  a  Leg.il 
Practitioner  to  offer  an  explanation  before  summons  is 
issued  against  him  [ibid] 

Per  Brown,  J  — A  definite  pronouncement  of  the 
Indian  Legislature  is  not  liable  to  be  overridden  by 
the  provisions  of  the  Common  Law  of  England,  in 
740,  col,  1] 

The  law  as  to  absolute  privilege  is  not  applicable 
to  the  Criminal  Law  of  defamation  in  India  The 
Indian  Penal  Code  is  a  complete  Code  in  itbelf  It 
is  to  a  large  extent  founded  on  the  Common  Law  of 
England,  but  the  ordinary  criminal  offences  m  this 
country  are  punishable,  not  because  they  would  be 
offences  under  the  English  Common  Law,  but  because 
they  have  been  declared  to  be  offences  punishable 
under  the  Penal  Code  Section  499  defines  the 
criminal  offence  of  defamation  The  section  is 
quite  clearly  wide  enough  in  certain  ciicu instances  to 
make  statements  made  by  Advocates  m  the  exercise 
of  their  profession  amounting  to  criminal  defamation 
punishable  under  s  500.  Thera,  are  a  number  of 
exceptions  set  forth  in  s  4 #9,  and  any  statement  fall- 
ing within  those  exceptions  does  not  amount  to 
criminal  defamation.  But  any  statement  which  does 
not  fall  within  any  of  these  exceptions,  and  which 
otherwise  satisfies  the  terms  of  the  general  definition 
in  the  section  is  quite  clearly  declared  by  s  499  read 
with  s.  500  to  be  punishable,  [p.  739,  col.  2,  p.  740,  col 

If  an  Advocate  is  to  carry  out  his  duties  to  his  client, 
he  must  frequently  have  to  make  imputations  or 
statements,  the  correctness  of  which  he  has  not  had 
the  time  or  opportunity  to  verify,  and  it  is  a  very 
fair  presumption  in  ordinary  cases  that  a  statement  or 
Imputation  t»o  made  by  an  Advocate  in  the  course  of 

47 


judicial  proceedings  is  made,  not  for  the  purposes  of 
defamation,  bU  m  £ood  faith,  for  the  protection  of 
the  mteiests  of  Ins  client  In  such  a  case,  therefore, 
to  establish  an  offence  of  criminal  defamation  it  is 
necessary  not  only  to  show  that  a  defamatory  statement 
has  been  made,  but  that  it  has  been  made  maliciously, 
wantonly,  or  with  some  improper  motive  A  Magistrate 
should  refuse  to  take  cognizance  of  a  complaint  in 
such  a  case  unless  theie  is  some  allegation  of  malice, 
wantonness  01  improper  motive,  [p  740,  col  2  ] 

Mr.  N  M.  Gowasjee,  amicus  curice,  for 
Rangoon  Bar  Association. 

JUDGMENT. 

Rutledge,  C.  J.— This  is  an  applica- 
tion by  Mr.  McDonnell  to  quash  the  crimi- 
nal proceedings  instituted  on  the  complaint 
of  Ponniah  Pillav  in  the  Court  of  the  Dis- 
trict Magistrate  of  Insein,  or,  in  the  alterna- 
tive, to  transfer  the  case  for  trial  by  the 
District  Magistrate  of  Rangoon. 

The  facts  of  the  case  leading  up  to  the 
present  application  are  as  follows  * — 

Mr.  McDonnell,  one  of  the  leading  Ad- 
vocates of  this  Court,  who  has  practised 
with  repute  and  distinction  in  Rangoon  for 
over  twenty  years,  was  engaged  in  the 
defence  of  one  V  M.  Abdul  Rahman,  who 
was  being  prosecuted  last  year  before  the 
Distiict  Magistrate  of  Insein.  In  the  course 
of  his  address  on  the  8th  of  September 
1924,  at  the  close  of  the  prosecution  case, 
he  asked  that  his  client  should  be  discharg- 
ed, and  was  asked  by  the  Magistrate: 
"  Who  is  Ponniah  Pillay  ?  "  Mr.  McDonnell 
answered  that  his  name  was  down  on  the 
0.  I.  D  records,  and  that  he  was  employed 
by  Oassiins  (the  complainant).  On  a  protest 
from  Mr  Gaunt,  Assistant  Government  Ad- 
vocate, Mr.  McDonnell  reiterated  the  state- 
ment that  he  was  employed  by  Cassims  to 
help  in  their  litigation  work,  and  that,  aa 
he  had  already  said,  he  was  on  the  0, 1,  D, 
records. 

Ponniah  Pillay  filed  a  complaint  for  de- 
famation, under  s.  SOU  of  the  Indian  Penal 
Code,  before  the  District  Magistrate,  In- 
sein, through  Mr.  Patei,  Advocate,  on  the 
12th  of  September  1924,  alleging,  inter  aha, 
that  Mr.  McDonnell  had  defamed  the  com- 
plainant by  making  the  above-mentioned 
imputation  intending  to  harm  or  having 
reason  to  know  that  such  imputation  would 
harm  the  complainant's  reputation. 

It  may  be  noted  that  neither  in  his  com- 
plaint, nor  in  his  examination  by  the 
Magistrate  did  the  complainant  charge  Mr. 
McDonnell  with  either  malice  or-  wanton 
recklessness.  Mr.  McDonnell  has  stated 
that  his  answer  to  the  Magistrate  was  on 


738 


MCDONNELL  ft,  BMPEROR, 


.  1  92  L  a 


written  instructions'which  he  had  no  reason 
to  disbelieve. 

The  Magistrate  thought  fit  to  issue  sum- 
mons, which  owing  to  Mr.  McDonnell's 
absence  in  Europe  on  leive,  could  not  be 
served  until  last  month. 

For  reasons,  which  will  hereafter  be 
given,  I  am  of  opinion,  that  the  Magistrate 
should  not  have  issued  summons,  and 
the  proceedings  will  accordingly  be  quash- 
ed. 

If   the  applicant  had  been   satisfied  to 
base  his  case  upon  the  very  extensive,  but 
still  qualified,  privilege,  which  an  Advocate 
enjoys  under  the  Indian   Penal   Code,  the 
question  might  be  dealt  with  quite  brieflv. 
But  Mr.  McDonnell,  not  so  much  on  behalf 
of  himself  as  on   behalf  of  the  profession 
to  which  he  belongs,  and  Mr.  N.  M.  Cowas- 
jee,   whom  we  have  heard  as  amicus  curicz 
on    behalf   of    the  Rangoon  Bar  Associa- 
tion, have  asked  us  to  concur  in  the  decision 
of  the  Madras  High  Court  and  declare  that 
any  statement  of  an  Advocate  during  the 
course  of  judicial  proceedings  is  absolutely 
privileged.    This    was   the  position  taken 
up  by  a  Full  Bench  of  that  Court  in  the 
case  of  Sullivan  v,   Norton  (1),    The  basis 
of  that  decision  has  been  very  fully  stated 
in  Potaraju  Venkata  Reddy  v.  Emperor  (2), 
another  Full  Bench  case  of  the  same  High 
Court.    No  doubt  that  was  a  case  not  of  an 
Advocate,  but  of  a  witness.    But  the  learn- 
ed Judges  came  to  the  conclusion   that  it 
was  not  the  intention  of  the  Legislature,  in 
enacting  the  Indian  Penal  Code,  to  exclude 
the  application  of  the  English  doctrine  of 
"  absolute  privilege11  from  the  law  of  defa- 
mation in  India. 

Speaking  personally,  I  should  be  glad  if 
I  had  been  able  to  find  myself  in  agreement 
with  the  Madras  decision,  as  I  think  that 
the  legal  profession  might  very  well  be 
left  to  the  control  not  merely  of  the  Judge 
before  whom  they  plead,  but  also  to  the 
very  real  supervision  and  powers  which 
this  Court  enjoys  through  the  provisions 
of  the  Legal  Practitioners  Act  and  the 
Letters  Patent.  But  I  am  unable  to  find 
any  valid  basis  for  the  doctrine  that  the 
Legislature,  in  enacting  the  Indian  Penal 
Code,  intended  to  leave  untouched  the  pro- 
visions of  the  English  Common  Law  on  the 
question  of  defamation. 


(1)  10  M.  28;  33  Ind.  Dec.  (N.  s.)  770  (F.  B.). 

(2)  14  Ind.  Cas,  659;  36  M.  216;  (1912)  M.  W.  I 
13  Or,  L,  J,  275;  11  M,  L,  T,  416;  23  M,  L,  J,  39, 


It  has  been  urged  that,  as  s.  5  of  the  Indian 
Penal  Code  states:  "Nothing  in  this  Act 
is  intended  to  repeal  vary,  suspend,  or  affect 
any  of  the  provisions  .....  of  any  special 
or  local  law";  and  that,  aa  the  English  Law 
with  regard  to  defamation  was  in  existence 
at  the  time  of  the  passing  of  the  Code  in 
I860,  it  comes  under  the  head  of  special  or 
local  law.  I  am  unable  to  accept  this  argu- 
ment. As  I  understand  it  the  types  of 
law  covered  by  this  phrase  are  such 
as  the  Opium  Act,  or  the  Gambling  A.ct, 
and  not  a  vast  system  like  the  English 
Common  Law.  If  the  argument  were  well- 
founded,  there  would  not  seem  to  be  any 
occasion  for  inserting  s.  77,  which  gives 
protection  to  a  Judge  and  which,  though 
wide,  is  not  quite  absolute.  If  he  were  ab- 
solutely privileged  by  reason  of  the  appli- 
cation of  the  English  Common  Law,  it  would 
be  idle  and  confusing  to  insert  in  the  Code 
the  provisions  of  3.  77. 

This  argument  has  been  dealt  with  and 
dismissed  in  the  judgment  of  a  Full  Bench 
of  the  Calcutta  High  Court  in  Satis  Chandra 
Chakrabarti  v.  Ram  Dayal  De  (3).  No 
doubt  this  was  a  case  of  a  party  or  witness, 
but  on  this  particular  point  it  is  equally 
applicable  to  the  case  of  an  Advocate.  There 
are  decisions  of  Single  Judges  in  this  Pro- 
vince, viz.,  Mya  Thi  v.  Henry  Po  Saw  (4)  and 
Meer  Burks  v.  Maung  Hla  Pe  (5)  to  the  like 
effect, 

I  am  consequently  of  opinion  that  s.  499 
of  the  Indian  Penal  Code  is  meant  to  be 
universal  in  its  application  That  being  so, 
the  English  Law  of  absolute  privilege  does 
not  apply  in  this  country  to  statements  of 
Advocates  in  judicial  proceedings.  Nor  do 
I  think  it  is  necessary  that  it  should,  if  the 
position  of  an  Advocate  is  clearly  grasped 
by  the  various  tribunals  of  this  country. 

In  the  words  of  Lord  Brett,  M.  R.,  in 
Munster  v  Lamb  (6):  "A  Counsel's  position 
is  one  of  the  utmost  difficulty.  He  is  not 
to  speak  of  that  which  he  knows;  he  is  not 
called  upon  to  consider  whether  the  facts 
with  vvhich  he  is  dealing  are  true  or  false. 
What  he  has  to  do,  is  to  argue  as  best  as  he 
can,  without  degrading  himself,  in  order  to 
maintain  the  proposition  which  shall  carry 

(3)  59  Ind  Cas.  143;  48  0.  388;  32  0.  L.  J.  94;  24  0. 
W.  N.  982;  22  Or.  L.  J.  31  (F.  B.). 

(4)  3  L.  B.  R.  265. 

(5)  49  Ind.  Cas.  109;  3  U.  B.  B.  (1918)  101;  20  Or.  L. 
J.  125. 

(6)  (1883)  11  Q,  B,  D,  588;  52  L.  J,  Q,  B.  726;  49  L 
T,  252,  32  W,  R,  248;  47  J,  P,  805, 


0. 1926] 


MCDONNELL  V   EMPfiROfi. 


739 


wiih  it  either  the  protection  or  the  reme- 
dy which  he  desires  for  his  client, 
If  amidst  the  difficulties  of  his  posi- 
tion he  were  to  be  called  upon  during 
the  heat  of  his  argument  to  consider  whether 
what  he  says  is  true  or  false,  whether  what 
he  says  is  relevant  or  irrelevant,  he  would 
have  his  mind  so  embarrassed  that  he  could 
not  do  the  duty  which  he  is  called  upon  to 
perform." 

A  Bench  of  the  High  Court  of  Bombay, 
in  the  case  of  Emperor  v  Purshottamdas 
Ranchhoddas  (7)  observes;  "Therefore  when 
a  Pleader  is  charged  with  defamation  in  res- 
pect of  words  spoken  or  written  while  per- 
forming his  duty  as  a  Pleader,  the  Court 
ought  to  presume  good  faith  and  not  hold 
him  criminally  liable  unless  there  is  satis- 
factory evidence  of  actual  malice  and  unless 
there  is  cogent  proof  that  unfair  advantage 
was  taken  of  his  position  as  Pleader  for  an 
indirect  purpose." 

I  do  not  think  I  could  get  anything  which 
more  coriectly  summarizes  the  position  than 
the  following  passage  from  the  judgment  of 
Imam  and  Chapman,  J  J.,  in  the  case  of 
Nikunja  Behari  Sen  v.  Harendra  Chandra 
Sinha  (8). 

^In  our  opinion  the  Magistrate  should 
have  dismissed  the  complaint.  It  is  not 
defamation  to  make  an  imputation  on  the 
character  of  another  provided  that  the  im- 
putation be  made  in  good  faith  for  the  pro- 
tection of  the  interest  of  the  peison  making 
it  or  of  any  other  person  (Indian  Penal  Code, 
s,  499,  Exception  9).  A  Pleader  is  entitled 
to  the  presumption  that  the  questions 
he  asks  in,  cross-examination  are  asked 
in  good  faith  for  the  protection  of  the 
interest  of  his  client  The  presumption, 
therefore,  is  that  a  question  asked  in  cross- 
examination  making  an  imputation  affords 
no  ground  for  a  criminal  prosecution.  To 
rebut  this  presumption  it  is  not  sufficient 
merely  to  allege  that  the  client  knew  the 
imputation  to  be  untrue  for  the  duty  of  the 
Pleader  is  to  present  his  clients'  case.  So 
far,  at  any  rate,  as  the  purposes  of  a  pro- 
secution for  defamation  are  concerned,  it 
would  be  wholly  unreasonable  to  say  that 
itfis  the  duty  oJ  a  Pleader  to  enquire  whe- 
ther his  client's  case  is  true  or  false.  To 
rebut  the  presumption  of  good  faith  in  such 
a  case  there  must  be  convincing  evidence 
that  the  Pleader  was  actuated  by  an  impro- 


(7)  9  Horn.  L  R.  1287;  6  Or.  L  J.  387. 

(8) 


20  Ind.  Gas,  1008;  41  0.  514;  14  Or.  L.  J.  528;  18 
0.  W.  N.  424. 


per  motive  personal  to  himself  and  not  by 
a  desire  to  protect  or  further  the  interests 
of  his  client  in  the  cause  No  such  motive 
v;as  suggested  in  the  present  case. 

'The  view  which  \ve  have  taken  is  sup- 
ported by  the  case  of  Upendra  Nath,  Bagchi 
v,  Savi  (9). 

It  is  for  the  public  good  that  a  person 
charged  with  the  responsibility  of  an  Advo- 
cate should,  so  far  as  may  be,  feel  unfetter- 
ed by  any  control  other  than  that  of  the 
Presiding  Judge,  in  the  use  of  every  weapon 
placed  at  his  disposal  by  the  law  for  the 
defence  of  the  liberty  of  his  client.  The 
^piovisioas  of  the  Exception  9  to  s.  499  of  the 
Indian  Penal  Code  must  be  interpreted  ac- 
cordingly/1 

The  Teamed  Judges  were,  in  that  ease, 
dealing  with  a  question  put  in  cross-ex- 
amination, but  it  applies  equally  to  an  an- 
swer as  in  the  present  case  made  by  an  Advo- 
cate to  a  question  from  the  Court,  or,  indeed, 
to  any  lemarks  made  by  an  Advocate 
while  addressing  the  Court. 

It  is  the  duty,  therefore,  of  a  Court  when  a 
complaint  is  made  against  an  Advocate  or 
Legal  Practitioner  for  defamation  that  it 
should  presume  that  the  remark  was  made 
on  instructions  and  in  good  faith;  and 
unless  circumstances  clearly  show  that  it 
was  made  wantonly,  or  from  malicious 
or  piivate  motives,  the  complaint  should 
not  be  entertained.  I  go  further  and  say 
that  even  if  the  circumstances  suggest 
recklessness  or  malice,  further  enquiry 
should  be  made  and  an  opportunity,  it 
possible,  should  be  given  to  a  Legal  Practi- 
tioner to  offer  an  explanation  before  sum- 
mons is  issued. 

If  Courts  should  entertain  cases  under  3. 
500  of  the  Indian  Penal  Code,  as  in  this  case, 
without  any  such  safeguard,  I  agree  with 
the  petitioner  and  Mr.  Cowasjee  that  the 
position  of  an  Advocate  in  this  country 
would  become  intolerable. 

For  the  above  reasons,  I  am  of  opinion 
that  the  proceedings  must  be  quashed. 

Brown,  J.— I  concur  in  the  order  pro- 
posed, and  also  in  the  finding  that  the  law 
aa  to  absolute  privilege  is  not  applicable  to 
the  Criminal  Law  of  defamation  in  India. 
The  Indian  Penal  Code  is  a  complete  Code 
in  itself.  It  is  to  a  large  extent  founded  on 
the  Common  Law  of  England,  but  the  ordi- 
nary criminal  offences  in  this  country  are 
punishable,  not  because  they  would  be 

(9)  1  Ind  Gas  147;  36  0.  375;  13  0,  W.  N.  340,  90, 
L.J.259;  90r,L.J,165, 


740 


MCDONNELL  V*  BMPBBOR. 


offences  under  the  English  Common  Law, 
but  because  they  have  been  declared  to  be 
offences  punishable  under  the  Indian  Penal 
Code.  Section  499  defines  the  criminal  offence 
of  defamation.  The  section  is  quite  clear- 
ly wide  enough  in  certain  circumstances  to 
make  statements  made  by  Advocates  in 
the  exercise  of  their  profession  amounting 
to  criminal  defamation  punishable  under 
s.  500.  There  are  a  number  of  excep- 
tions set  forth  in  s.  499,  and  any  state- 
ment falling  within  those  exceptions  does 
not  amount  to  criminal  defamation.  But 
any  statement  which  does  not  fall  within 
any  of  these  exceptions,  and  which  other- 
wise satisfies  the  terms  of  the  general  definK 
tion  in  the  section  is  quite  clearly  declared 
by  s.  499  read  with  s.  500  to  be  punishable. 
Section  2  of  the  Code  states  that  every  person 
shall  be  liable  to  punishment  under  this 
Code.  When  the  Legislature  has  thus  in 
definite  terms  declared  that  a  person  shall 
be  punishable,  it  seems  to  me  to  be  idle  to 
reply  that  it  is  highly  desirable  in  the 
public  interests  that  in  certain  circum- 
stances that  person  should  not  be  punishable, 
as  that  person  would  not  be  punishable 
under  the  06mmon  Law  of  England.  I 
know  of  no  authority  for  the  view  that  a 
definite  pronouncement  of  the  Indian  Legis- 
lature in  deaf  and  unmistakable  terms  is 
liable  to  be  overridden  by  the  provisions  of 
the  Comtnon  Law  of  England.  I  agree  with 
the  learned  Chief  Justice  in  his  interpreta- 
tion of  s.  5  of  the  Code,  and  it  has  not  been 
suggested  that  any  other  portion  of  the 
Code  is  an  authority  for  the  special  privi- 
lege claimed. 

Their  Lordships  of  the  Privy  Council 
held  in  the  case  of  Baboo  Gunesh  Dutt  Singh 
v.  Mugmeram  Chowdhry  (10)  that  so  far  as 
witnesses  are  concerned  the  law  of  absolute 
privilege  did  apply  in  any  action  for  civil 
damages.  But  there  is  no  enactment  by 
the  Indian  Legislature  as  to  the  circum- 
stances in  which  a  civil  action  for  defama- 
tion would  lie,  and  there  is  nothing  to  bar 
the  application  of  the  general  principles  of 
justice,  equity  and  good  conscience  in  such 
case.  It  is  true  that  in  the  courseof  their  judg- 
ment their  Lordships  remark:  "The  ground 
of  it  is  this:  that  it  concerns  the  public  and 
the  administration  of  justice  that  witnesses 

Siving  their  evidence  on  oath  in  a  Court  of 
ustice  should  not  have  before   their  eyes 
the  fear  of   being   harassed    by  suits  fojr 

10)  11  B.  L.  B.  321;  17  W,  R,  283;  2  Suth,  P.  0,  J. 
,P,0,J,179  (P,  0,), 


damages;  but  that  thetmly  _ 
they  should  incur  if  they  give  evidence 
falsely  should  be  indictment  for  perjury." 
These  words  may  suggest  that  witnesses 
would  not  be  liable  on  a  criminal  prosecu- 
tion for  defamation.  But  that  was  not  the 
question  before  their  Lordships  for  their 
decision,  and  I  do  not  understand  it  to  be 
suggested  that  their  Lordships  did  really 
decide  that  point. 

In  my  opinion  the  provisions  of  the 
Indian  Penal  Code  on  the  point  are  per- 
fectly clear,  and  the  rule  obtaining  in 
England  as  to  the  absolute  privilege  of  Ad- 
vocates, witnesses  and  parties  in  judicial 
proceedings  is  not  applicable  to  a  criminal 
prosecution  for  defamation  in  India. 

But  I  am  in  entire  agreement  with  the 
learned  Chief  Justice  as  to  the  applicability 
of  the  provisions  of  the  ninth  Exception  to 
s.  499  of  the  Code  to  the  circumstances  of 
the  present  case.  It  is  quite  obvious  that 
if  an  Advocate  is  to  carry  out  his  duties  to 
his  client,  he  must  frequently  have  to  make 
imputations  or  statements,  the  correctness 
of  which  he  has  not  had  the  time  or  oppor- 
tunity to  verify,  and  it  is  a  very  fair  pre- 
sumption in  ordinary  cases  that  a  statement 
or  imputation  so  made  by  an  Advocate  in 
the  course  of  judicial  proceedings  is  made, 
not  for  the  purposes  of  defamation,  but  in 
good  faith,  for  the  protection  of  the  in- 
terests of  his  client.  In  such  a  case,  there- 
fore, to  establish  an  offence  of  criminal 
defamation  it  is  necessary  not  only  to  show 
that  a  defamatory  statement  has  been  made, 
but  that  it  has  been  made  maliciously, 
wantonly,  or  with  some  improper  motive, 
It  follows  that  a  Magistrate  should  refuse 
to  take  cognizance  of  a  complaint  in  such 
a  case  unless  theie  is  some  allegation  of 
malice,  wantonness  or  improper  motive. 
No  such  allegation  has  been  made  in  the 
present  case  either  in  the  written  complaint 
or  in  the  statement  made  by  the  complain- 
ant when  examined  by  the  Magistrate  under 
the  provisions  of  s.  SCO  of  the  Cr.  P.  0. 

The  Magistrate  should,  therefore,  have 
dismissed  the  complaint  under  the  provi- 
sions of  s.  203. 

And  it  is  obvious  that  if  Advocates  are 
to  be  liable  to  promiscuous  prosecutions  of 
this  nature,  even  though  the  ultimate  result 
of  the  prosecution  may  be  an  acquittal, 
their  position  will  be  an  impossible  one. 
The  case  is,  therefore,  one  in  which  the 
interests  of  justice  call  for  interference  by 
this  Court  in  revision, 


.  1926] 


NARAIN  DAS  V.  BMPEROR. 


741 


1  agree  that  the  proceedings  in  this   case 
must  be  quashed. 

a.  K.  Proceedings  quashed. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  RBFERENCE  No.  524  OF  1925 

November  30,  1925, 
Present: — Mr.  Justice  Sulaiman. 
NARAIN  DAS  AND  ANOTHER— 

ACCUSED  —  APPLICANTd 

versus 
EMPEROR— OFPOSITB  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  ss  190 
(c),  191t  5S7-  Cognizance  taken  by  Magistrate  on  his 
own  knowledge  or  suspicion —Procedure —Failure  to 
inform  accused  of  right  to  be  tried  by  another  Magis- 
trate—Illegality 

Where  a  Magistrate  takes  cognizance  of  a  case 
otherwise  than  on  a  complaint  or  the  report  of  a 
Police  Officer,  he  must  be  deemed  to  have  taken  cog- 
nisance of  it  upon  his  own  knowledge  or  suspicion 
under  cl  (c)  of  s  190,  Or  P  0  ,  and  m  such  a  case  it 
is  his  duty  undei  s  101  of  tta  Code  to  inform  the 
accused  that  he  can,  if  he  wishes  be  tried  by  another 
Magistrate,  [p  741,  col  2] 

Section  191,  Or  P  C  ,  is  imperative  and  a  failure  to 
comply  with  its  provisions  is  an  illegality  which 
vitiates  the  trial  and  not  a  mere  irregularity  which  is 
cured  by  s  537  of  the  Code  [ibid] 

Criminal  Reference  made  by  the  Sessions 
Judge,  Cawn pore,  dated  the  8th  of  August 
1925. 

Mr.  A.  P.  Du&e,  for  the  Applicants 

Dr.  M.  Wahnllah,  Assistant  Government 
Advocate,  for  the  Crown. 

JUDGMENT.— This  is  a  Reference  by 
the  Sessions  Judge  of  Cawnpore  recom- 
mending that  the  convictions  of  the  accused 
Narain  Das  and  Ohhote  Singh  and  the 
sentences  passed  on  them  should  be  set 
aside  and  they  be  either  discharged  or  a  re- 
trial ordered. 

The  bullock  in  question  belongs  to  a 
family  of  which  Narain  Das  is  a  senior 
member.  Chhote  Singh  accused  is  his 
mukhtar-am.  The  animal  was  employed 
for  driving  a  cart  employed  in  connection 
with  the  proprietor's  brick-kiln.  The  bul- 
lock was  first  found  wounded  in  the  month 
of  February  1925  and  the  driver  Kamdeo 
was  prosecuted  and  convicted  and  a  fine 
inflicted  on  him.  It  is  not  probable  that 
the  owner  and  the  mukhtar  am  came  to 
know  all  the  circumstances  of  the  prosecu- 
tion. In  spite  of  this  conviction  a  Constable 
again  found  tho  bullock  being  worked  in 
a  cart  oa  the  3rd  of  April  last  while 


severely  wounded,  This  time  the  driver 
was  one  Mania  Singh  who  was  prosecuted 
and  a  fine  imposed  on  him.  In  the  course 
of  the  trial  the  learned  Magistrate  carne  to 
know  the  names  of  the  proprietor  and  his 
mukhtar-am  and  issued  summonses  to  them. 
They  have  been  convicted  and  sentenced  by 
the  same  learned  Magistrate. 

The  learned  Sessions  Judge  has  pointed 
out  three  irregularities  in  the  trial  of  this 
case  For  the  purposes  of  this  reference  it 
is  sufficient  to  consider  only  one  of  these. 
There  was  no  formal  complaint  before  the 
Magistrate  nor  was  there  anv  report  in 
writing  made  by  any  Police  Officer  against 
tho  present  accused  within  the  meaning  of 
sub- els.  (a)  and  (6)  of  s  190  (1).  The  tak- 
ing of  cognizance  of  the  offence  must, 
therefore,  have  been  under  sub-cl.  (c)  of 
that  sub-section.  The  learned  Magistrate 
in  his  explanation  has  suggested  that  inas- 
much as  Police  Officers  were  examined  as 
witnesses  in  the  case  against  Mania  Singh 
he  received  information  from  them  and 
not  from  any  person  other  than  a  Police 
Officer.  But  if  the  case  did  not  fall  under 
sub-els,  (a)  and  (b)  of  s.  190  (1)  then  it 
must  be  deemed  that  the  Magistrate  took 
cognizance,  of  the  offence  upon  his  own 
knowledge  or  suspicion  that  such  offence 
had  been  committed.  In  that  case  also  the 
taking  of  cognizance  of  the  offence  would 
fall  under  sub-cl.  (c).  In  this  view  s.  191 
became  applicable  and  it  was  the  duty  of 
the  Magistrate  to  inform  the  accused  that 
he  was  entitled  to  have  the  case  tried  by 
another  Court.  This  admittedly  was  not 
done.  Section  191  is  imperative  and  it  says 
that  the  accused  shall  before  any  evidence 
is  taken  be  informed,  etc.  It  has  been 
held  in  several  cases  by  this  Court  that  a 
failure  to  inform  the  accused  under  s.  191 
is  not  a  mere  irregularity  which  is  cured 
by  s.  537,  but  that  it  vitiates  the  trial.  I 
niay  refer  only  to  the  cases  of  Emperor  v. 
Chedi  (I)  and  Chander  Sen  v.  Emperor  (2). 

It  has  been  pressed  upon  me  that  no  re- 
trial should  be  ordered,  but  in  view  of  the 
fact  that  there  was  a  previous  prosecution 
of  the  driver  Ramdeo  which  resulted  in  his 
conviction,  I  am  of  opinion  that  a  re-trial 
should  take  place.  The  convictions  of  the 
two  accused  and  their  sentences  are  accord- 
ingly set  aside  and  the  case  is  sent  back 

(1)  23  A.  212;  A.  \V.  N,  (1905)  25S,  2  A.  L.  J.  745;  2 
Cr  L  J  809 

(2)  73  lad.  Gas.  576,  21  A,  L.  J,  89,    A,  I,  R,   19i>3 
All.  383;  24  Or,  L,  J,  056, 


742 

for  re-trial  The  Dietrich  Magistrate  may 
either  try  the  case  himself  or  send  the  case 
for  trial  to  a:iv  competent  Magistrate  other 
than  the  learned  Magistrate  who  tried  it 
before, 
z.  K,  Convictions  set  aside, 


JBOOMAL  V.  BMPBROB. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REVISION  APPLICATION*  No.  211 

OP  1925, 

October  27,  1925. 

Present:— Mr.  Kincaid,  J.  C.,  and 
Mr.  Kennedy,  A.  J.  0. 

JEOMAL  AND  ANOTHER — APPLICANTS 

versus 
EMPEROR— OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  ss  109, 
Jlrt,  5 lit— Security  for  good  behaviour — Conviction- 
Order  of  forfeiture,  whether  can  be  made  subsequently 
— Bond  under  88  109  and  110,  whether  void 

A  security  bond  given  in  pursuance  of  an  order 
binding  over  a  person  both  under  ss.  109  and  110, 
Or.  P.  CM  is  not  void  [p.  743,  col  1.] 

Where  a  person  who  has  been  put  on  security  for 
good  behaviour  is  convicted  of  an  offence  involving  a 
forfeiture  of  the  surety  bond,  it  is  not  incumbent  upon 
the  Magistrate  who  convicts  him  to  pass  nn  order  of 
forfeiture  of  the  bond  there  and  then  Such  an  order 
may  be  passed  at  any  subsequent  time,  [p  743,  col  2  ] 

Application  to  revise  an  order  of  the 
District  Magistrate,  Sukkur,  dated  the  5th 
August  1925,  confirming  that  of  the  City 
Magistrate,  Sukkur,  dated  the  27th  June 
1925. 

Mr.  Motiram  Idanmal,  for  the  Applicants. 
Mr.  jP.  G*  Elphinston,   Public  Prosecutor, 
for  the  Crown. 

JUDGMENT* 

Kincaid,  J*  C.— The  facts  of  this  case 
are  shortly  as  follows:— 

A  certain  Ramji  son  of  Kishnomal  was 
bound  over  by  the  Court  of  the  City  Magis- 
trate of  Sukkur  under  es.  109  and  110  of  the 
Or.  P.  0.  to  be  of  good  behaviour  for  a 
period  of  12  months  and  two  persons  Jeomal 
who  was  Ramji's  brother  and  one  Jaromal 
Gurditsing  stood  sureties  for  him  in  the 
sum  of  Rs.  200  each  The  bond  was  exe- 
cuted by  the  principal  and  by  the  sureties 
on  the  12th  of  November  1923.  On  the  9th 
of  August  1921  that  is  before  the  period  of 
12  months  had  expired  Hamji  was  con- 
victed by  the  same  learned  City  Magistrate 
under  s,  380,  Indian  Penal  Code  and  was 
ordered  to  undergo  12  months*  rigorous 


[92  fro.  192&1 

u  ^-^zLi 

imprisonment.  On  the  20th  of  January 
1925  the  learned  Magistrate  forfeited  Ramji'a 
bond  for  Rs.  200  and  on  the  27th  of  June 
1925  he  forfeited  the  bonds  of  the  two 
sureties.  Against  this  decision  of  the 
learned  Magistrate  the  sureties  appealed  to 
the  District  Magistrate,  Sukkur.  On  the 
5th  of  August  1925  the  learned  District 
Magistrate  confirmed  the  order  of  the  City 
Magistrate.  The  sureties  have  now  moved 
this  Court  to  revise  the  District  Magis- 
trate's order  on  the  5th  August  1925. 

The  main  poiijt  raised  by  the  learned 
Pleader  for  the  applicants  is  that  the  order 
of  forfeiture  should  have  been  passed  at  the 
same  time  as  the  order  of  the  9th  of  August 
1924  by  which  the  learned  City  Magistrate 
convicted  Ramji  under  s.  380.  The  learned 
Pleader  finds  support  in  his  argument  in 
the  Full  Bench  decision  of  the  Punjab  Chief 
Court,  Emperor  v,  Mawaz  (1).  The  learned 
Judges  of  the  Punjab  Chief  Court  observed 
as  follows: 

"We  think  it  is  a  legitimate  inference 
that,  if  a  Magistrate,  who  has  knowledge 
of  the  fact  that  the  person  before  him' has, 
by  his  conduct,  forfeited  his  bond,  does  not 
make  any  order  for  forfeiture,  he  must  be 
taken  to  have  decided  not  to  take  action  on 
the  bond  in  respect  of  that  particular  breach 
of  the  peace,  and  that  he  cannot  thereafter 
reconsider  and  add  to  his  order  by  directing 
forfeiture  of  the  recognizance," 

With  the  utmost  deference  to  the  learned 
Judges  who  delivered  the  judgment  we 
find  ourselves  unable  to  agree  with  it.  We 
notice  moreover  that  the  learned  Judges 
themselves  made  the  folio  wing  admission: 

'There  is,  it  is  true,  nothing  in  s.  514  of 
the  Code  to  debar  a  Magistrate,  who  has 
convicted  a  person  of  an  offence  which 
involves  the  forfeiture  of  the  bond,  from 
subsequently  taking  action  against  that 
person  by  forfeiting  the  bond  in  question, 
but,  in  our  opinion,  the  spirit  of  the  section 
is  in  favour  of  the  view  taken  by  Sir  William 
Clark  and  by  the  Judges  of  the  High  Court 
of  Calcutta  in  In  re  Ram  Chundra  Lalla  (2) 
and  In  re  Parbutti  Churn  Base  (3)." 

We  are  most  respectfully  of  the  opinion 
that  if  there  is  nothing  in  the  section  to 
debar  a  Magistrate  from  taking  a  particular 
line  of  action  it  does  not  lie  within  the  pro- 
vince of  a  superior  Court  to  reverse  his 

(1)  18  Ind.  Gas  403;  14  Or  L.  J,  67;  7  P.  W.  R  1913 
Or  ,  39  P  L.  R.  1913, 13  P.  &  1013  Or. 
(2;  1  C.  L,  K  134. 
(3)  3  0,  U  R.  406;  2  J.  G,  ?9, 


^  HMPBEOR  t>,  DAULAT  8IHGH. 

lecision.  We  are  supported  in  our  view  by 
the  considered  judgment  of  Mr.  Justice 
Knox  and  Mr.  Justice  Aikman  of  the  Al- 
lahabad High  Court  in  the  case  of  Emperor 
v.  Raja  Ram  (4).  Their  Lordships  referred 
to  the  two  Calcutta  rulings.  la  In  re  Ram 
Chunder  Lalla  (2)  and  In  re  Parbutti  Churn 
Base  (3)  but  they  went  on  to  make  the 
following  remarks. 

"In  both  these  cases  it  was  laid  down  that 
when  the  Magistrate  deciding  a  case  of  an 
offence  attended  with  violence  is  cognizant 
of  the  fact  that  the  person  convicted  is 
under  a  recognizance  to  keep  the  peace,  and 
does  not  proceed  at  once  to  take  steps  to 
forfeit  the  recognizance,  he  cannot  do  so 
subsequently.  With  all  deference  to  the 
learned  Judges  who  decided  these  cases  we 
find  ourselves  unable  to  follow  them.  We 
find  nothing  in  the  language  either  of  the 
Cr.  P.  C  of  1872  or  in  the  wording  of  the 
present  Code  which  lays  down  any  such 
lim'tation", 

The  wording  of  s.  514  is  indeed  of  the 
widest  character.  "Whenever  it  is  proved 
to  the  satisfaction  of  the  Court,  etc/1 

The  next  point  raised  by  the  learned  Plea- 
der was  that  under  the  ruling,  In  re  Ranga- 
sami  Pillai  (5)  a  person  cannot  be  bound  over 
both  under  ss.  109  and  HO.  That,  no  doubt, 
was  the  view  of  the  learned  Judges  of  the 
Madras  High  Court,  nevertheless  they  did  not 
hold  that  a  bond  under  both  ss.  109  and  110 
was  void.  They  merely  set  aside  the  order 
binding  the  persons  concerned  under  s.  109 
and  they  confirmed  the  order  under  s.  110, 
The  matter,  therefore,  seems  to  us  purely  a 
technical  one  and  in  'any  case  we  are  not 
dealing  with  the  order  but  merely  with  the 
surety  bond  and  its  execution. 

Lastly  the  learned  Pleader  has  urged  that 
we  should  reduce  the  amount  which  the 
learned  Magistrate  has  sought  to  recover 
from  the  sureties.  We,  however,  do  not 
think  that  we  should  interfere  with  the 
learned  Magistrate's  discretion.  This  is 
not  a  case  where  the  sureties  have  bound 
themselves  to  pay  the  principal's  bond  in 
case  he  makes  default.  The  sureties  here 
have  bound  themselves  that  the  principal 
shall  be  of  good  behaviour  for  a  period  of 
12  months.  If  during  those  12  months  the 
principal  misbehaves  himself  and  is  con- 
victed like  Ramji  was  on  the  6th  of  August 
1924  we  cannot  see  why  his  sureties  should 

(4)  26  A,   202;   A.  W,  N,   (1903)  237;  1   Cr,  L,   J. 

(5)  ,30  lud,  Oas.  455;  38  M,  555;  16  Or,  L,  J,  63L 


748 

not  forfeit  the  Rs.  200  each  as  they  agreed 
to  do  when  he  was  bound  over  on  the  12th 
of  November  1923. 

We,  therefore,  reject  this  application  and 
confirm  the  order  of  the  learned  City  Magis- 
trate. 

Kennedy,  A.  J.  C*— I  agree,  I  am 
fortified,  in  my  opinion,  as  to  the  time  when 
the  bond  can  be  enforced  by  the  considera- 
tion of  cl.  (7)  of  s.  514.  If  the  bond  is  broken 
by  the  commission  of  a  criminal  offence  by 
a  person  so  bound  cl.  (7)  provides  that  com- 
mission of  that  offence  may  be  proved  by  a 
production  of  a  certified  copy  of  the  judg- 
ment of  the  Court  convicting  him.  If  ae 
laid  down  by  the  Punjab  Chief  Court  it 
was  the  duty  of  the  Court  so  convicting 
him  to  enforce  the  bond  and  if  no  othei 
Court  could  do  so  cl.  (7)  would  be  meaning- 
less. 

As  regards  the  question  of  limitation  tin 
man  bound  and  his  sureties  contract  thai 
he  will  not  commit  an  offence  within  the 
fixed  time.  If  he  does  so  commit  anoffenc* 
or  cease  to  be  of  good  behaviour  then  then 
is  nothing  in  the  Code  to  prevent  the  penal 
ty  being  executable  at  any  time.  It  woulc 
be  preposterous  to  suppose  that  the  princi- 
pal and  his  sureties  should  go  free  because 
the  principal  commits  some  grave  offenc< 
with  such  skill  that  he  is  not  detected  til 
after  the  period  of  the  bond  had  elapsec 
yet  that  is  the  conclusion  which  necessarily 
follows  if  we  accept  the  ingenious  argumen 
of  the  applicant's  Pleader.  It  may  be  tha 
hardship  might  possibly  be  caused  by  th< 
exaction  of  stale  claims  against  the  subjeci 
but  if  that  becomes  the  general  practice  n< 
doubt  the  Legislature  will  interfere. 

In  the  meanwhile  I  would  dismiss  fhli 
application. 

z  K.  Application  dismisted. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  RRFBUBNCE  No.  621  OF  1925. 

November  17, 1925. 

Present: — Mr*  Justice  Daniels. 

EMPEROR— APPLICANT 

versus 

DAULAT  SINGH  AND  ANOTHER— 
OPPOSITE  PARTIES. 

Criminal  Procedure  Code  (Act  V  of  1898),  s$,  431 
438— Sessions  Judge,  order  of — District 
power  oft  to  make  reference  to  High  Court, 


744 


PARAKH  V. 


Section  435,  Or.  P.  0.,  does  not  authorise  a  District 
Magistrate  to  make  a  reference  to  the  High  •  Court 
questioning  the  propriety  of  an  order  passed  by  a 
Sessions  Judge.  His  proper  course  when  he  considers 
that  action  is  necessary  in  such  a  case  is  to  move 
the  Government  to  file  an  application  in  revision. 

Criminal  Reference  made  by  the  District 
Magistrate,  Bareilly,  dated  the  10th  October 
1925. 

Mr.  Saila  Nath  Mukerji,  for  the  Opposite 
Parties. 

JUDGMENT.— This  is  a  Reference  by 
the  District  Magistrate  of  Bareilly  submit- 
ted through  the  Sessions  Judge  asking  this 
Court  to  modify  in  revision  an  order  passed 
by  the  Additional  Sessions  Judge  in  a  case 
under  e.  110  of  the  Cr.  P.  C.  Section  435 
does  not  authorise  the  District  Magistrate 
to  make  any  such  reference,  He  can  refer 
the  proceedings  of  any  inferior  Court  but 
he  is  not  entitled  to  question  the  propriety 
of  an  order  passed  by  a  Court  of  Session. 
His  proper  course  when  he  considers  that 
action  is  necessary  is  to  move  the  Govern- 
ment to  file  an  application  in  revision.  This 
has  been  pointed  out  many  times  by  this 
Court  and  by  other  High  Courts,  e.  g.,  Em- 
peror v.  Jamna  Bai  (1),  Emperor  v.  Ganga 
(2)  and  Emperor  v.  John  Francis  Lobo  (3). 
The  reference  is  also  made  very  late.  The 
order  complained  of  was  passed  on  22nd 
October  1924.  The  reference  of  the  Dis- 
trict Magistrate  was  not  made  till  the  10th 
October  1925.  The  period  for  which  the 
accused  were  originally  bound  over  had 
already  expired  when  the  reference  was 
made.  The  delay  is  not  explained  and 
would  in  itself  be  a  sufficient  ground  for  re- 
fusing to  interfere, 

Lst  the  record  be  returned. 

z.  K.  Record  returned. 

(1)  28  A  91,  2  A  L  J  589,  A.  \V.  N.  (1005)  198;  2 
Cr.  L.  J.  515. 

(2)  23  Jnd.  Cas  1007;  36  A.  378,  12  A.  L.  J.  519, 
15  Or.  L.  J.  407. 

(3>  36  Ind.  Cas  577,  41  B,  47,  18  Bom.  L.  R.  796; 
17  Cr.L.J.  529, 


OUDH  CHIEF  COURT. 

CRIMINAL  REVISION  No.  192  OF  1925. 

December  17,  1925. 

Present: — Mr.  Justice  Stuart,  Chief  Judge 
E  H.  PARAKH— APPLICANT 

versus 

EMPEROR— OPPOSITE  PARTY. 
Contract  Act  (IX  of  187  i),  e.  171— Factor,  meaning 
o/~ -Factor1*  Hen, 


The  word  "factor"  in  India  as  in  England  mean*  & 
agent  entrusted  with  the  possession  of  goods  for  th« 
purpose  of  selling  them  |for  his  principal,  [p.  329, 
col  1] 

A  factor  is  entitled  under  s,  171  of  the  Contract 
Act  to  retain  as  security  for  a  general  balance  of 
account,  any  goods  bailed  to  him,  [p.  745,  cols.  1  &  2.] 

Criminal  Revision  against  an  order  of 
the  District  Magistrate,  Partabgarh,  dated 
the  12th  November  1925,  issuing  notice  to 
the  applicant  to  show  cause  against  his 
prosecution  under  ss.  183  and  186,  Indian 
Penal  Code. 

Messrs.  J.  Jackson  and  Ram  Prasad 
Varma,  for  the  Applicant. 

JUDGMENT.  —This  is  an  application 
by  E.  H.  Parakli,  proprietor  of  the  firm  Edul- 
jee  and  Co,,  Motor  Engineers  and  Coach- 
builders  to  set  aside  an  order  issued  by 
the  District  Magistrate  of  Partabgarh 
directing  him  to  show  cause  why  he  should 
not  be  prosecuted  under  the  provisions  of 
ss.  183  and  186  of  the  Indian  Penal  Code 
for  offering  resistance  to  the  taking  of  pro- 
perty by  the  lawful  authority  of  a  public 
servant,  and  voluntarily  obstructing  a  pub- 
lic servant  in  the  dischage  of  his  public 
functions.  The  facts  are  these:  In  the  year 
1922  Raja  Amarpal  Singh  a  taluqdar  of  the 
Partabgarh  District  entrusted  the  appli- 
cant's firm  with  a  motor  car  of  American 
make  called  a  "Hoop."  Car  apparently 
under  verbal  instructions  for  sale.  The 
exact  terms  which  governed  the  transac- 
tion will  be  found  in  a  letter  of  the  18th 
April  1923  from  the  Raja  to  the  firm  which 
is  as  follows: — 

uDear  Sirs, 

As  to  the  Moon  Car  I  have  placed  with 
you  for  sale,  please  sell  it  at  a  figure  be- 
tween Rs.  8,000  and  Rs.  9,000  and  credit 
proceeds  that  you  realise  towards  pay- 
ment of  Chevrolet  Car  account  which  has 
not  yet  been  paid."  I  am  informed  by  the 
learned  Counsel  for  the  applicant  that  the 
firm  was  unable  to  sell  the  car  as  at  that 
time  it  was  very  difficult  to  sell  a  second 
hand  car  and  as  the  Raja  had  placed  a  high 
reserve  upon  it.  The  car  is  said  to  have 
been  worth  about  Rs.  12,000  when  new 
and  in  these  circumstances  it  would,  of 
course,  be  difficult  to  sell  it  at  a  reserve  of 
2/3rds  of  its  original  cost.  The  car  remain- 
ed with  the  applicant's  firm  unsold  till 
September  of  this  year  when  the  Court  of 
Wards  took  over  the  management  of  the 
Raja's  estate.  On  the  23rd  September 
1925  the  Manager  of  the  Court  of  "  " 


1928] 


PARAKH  V.  BUPEROR. 


745 


wrote  tp  the  applicant's  firm  stating  that 
the  Raja's  affairs  were  now  under  their 
management,  and  asking  whether  the  car 
in  question  had  been  repaired,  and  when  it 
would  be  expected  back.  The  Manager  of 
the  Court  of  Wards  was  clearly  under  a 
misapprehension  in  respect  of  the  sugges- 
tion as  to  repairs,  for  the  car  had  not  been 
sent  to  the  applicant's  firm  for  repair  but 
for  the  purpose  of  being  sold.  On  the  30th 
September  1925  the  applicant  wrote  to  the 
Special  Manager  stating  that  the  car  had 
been  placed  with  his  firm  for  sale  and  en- 
closing a  copy  of  the  Raja's  letter  of  the 
18th  April  1923.  By  this  date  the  account 
in  connection  with  the  car  amounted, 
according  to  the  applicant,  to  Rs  1,008  13-0. 
On  the  23th  October  1925  the  Special  Mana- 
ger replied  to  the  applicant  directing  him 
to  submit  his  claim  in  accordance  with  the 
provisions  of  s.  17  of  the  Court  of  Wards 
Act.  This  section  lays  down  that  creditors 
of  a  ward  must  notify  their  claims  in 
writing  within  six  months  of  the  date  of 
notice  of  assumption  of  management  The 
applicant  replied  on  the  26th  October  to 
the  Special  Manager  that  he  considered 
that  he  had  already  notified  his  claim  and 
he  further  said  that  he  would  not  deliver 
the  car  until  the  account  was  paid.  His 
refusal  to  deliver  the  car  until  the  account 
was  paid  was  clearly  based  upon  a  factor's 
lien  under  the  provisions  of  s.  171  of  the 
Indian  Contract  Act  (IX  of  1872).  The  word 
"factor"  in  India  as  in  England  means  an 
agent  entrusted  with  the  possession  of  goods 
for  the  purpose  of  selling  them  for  his 
principal.  Before  this  letter  of  the  26th 
October  1925  had  been  received  the  Deputy 
Commissioner  had  sent  a  letter  to  the 
applicant  dated  27th  October  which  was 
in  continuation  of  the  letter  of  the  23rd 
October  in  which  he  said  that  the  estate 
being  in  charge  of  the  Court  of  Wards  it 
was  necessary  to  consider  his  claim  in  a 
judicial  manner  as  laid  down  in  the  Court 
of  Wards  Act,  and  also  stating  that  it  was 
not  open  to  the  applicant  to  detain  the 
car  which  he  said  he  understood  was  being 
raed  by  the  applicant's  firm  for  its  own 
purposes.  The  letter  concludes  with  the 
remark  that  if  the  car  were  not  delivered 
immediately  civil  and  criminal  proceedings 
would  be  started  against  the  applicant.  As 
this  letter  from  the  Deputy  Commissioner 
ignores  the  provisions  of  the  Indian  Contract 
Act  upou  the  subject  it  is  well  to  note 
what  these  provisions  are,  In  s,  171  it  te 


stated  that  factors  may,  in  the  absence  of 
a  contract  to  the  contrary,  retain  as  sequrity 
for  a  general  balance  of  account,  any 
goods  bailed  to  them.  It  was  open  to  the 
Deputy  Commissioner  of  Partabgarh,  as  it 
will  be  open  to  him  still,  to  question  the 
applicant's  claim  to  retain  the  car  as  a 
factor  until  the  balance  of  his  account 
has  been  paid  But  this  letter  does  not 
question  his  claim,  it  ignores  it.  The  ap- 
plicant replied  to  this  letter  of  the  27th 
upon  the  29th  and  here  he  recorded  his 
inability  to  deliver  the  car  until  his 
account  was  settled  He  modified  his 
position  in  the  later  part  of  his  letter  by 
stating  that  he  did  not  want  an  immedi- 
ate settlement  but  only  a  recognition 
that  his  charges  were  not  excessive.  He 
denied  absolutely  that  he  had  used  the  car 
for  his  own  purposes,  and  asked  to  be 
furnished  with  the  name  of  the  Deputy 
Commissioner's  informant  so  that  he  might 
be  able  to  deal  with  him.  The  next  letter 
that  I  find  is  one  fiom  the  Deputy  Com- 
missioner which  although  dated  the  6th 
October  was  clearly  sen  ton  the  6th  Novem- 
ber. It  apparently  is  a  reply  not  to  the 
letter  of  the  29hh  October  but  to  the  letter 
of  the  26th  October.  It  states  that  it  is 
a  reply  to  the  letter  of  the  28fch  Octo- 
ber. I  cannot  find  that  there  was  any 
letter  of  the  28th  October.  In  this  letter 
the  Deputy  Commissioner  lays  down 
his  views  as  to  what  is  the  necessary 
amount  of  proof  before  the  Court  of  Wards 
can,  in  his  opinion,  settle  the  debts  of  their 
wards,  and  indicated  his  intention  of  ques- 
tioning the  applicant's  bill  upon  every 
item.  Apparently  after  this  letter  was 
sent  the  applicant's  letter  of  the  29th 
October  was  put  up  before  the  Court  of 
Wards  office  for  consideration.  I  find  upon 
the  file  a  Head  Clerk's  report  of  the  12th 
November  1925  suggesting  that  action 
should  be  taken  against  the  applicant  under 
s.  174  of  the  Indian  Penal  Code.  This  is  a 
section  under  which  a  person  can  be  pro- 
secuted for  non-attendance  in  obedience  to 
an  order  from  a  public  servant,  and  its 
applicability  is  not  easily  seen  because  at 
that  period  the  applicant  had  never  been 
ordered  to  attend  anywhere.  The  Head 
Clerk's  note  wa*  placed  before  the  Special 
Manager  who  noted  thereon  "this  is  a  very 
serious  matter  and  means  wilful  disobedi- 
ence to  Court's  order.1'  The  reference  to 
the  Court  is  presumably  the  Court  of 
Wards,  The  Deputy  Commissioner  ou  the 


746 


same  date  directed  as  District  Magistrate 
a  notice  to  issue  to  the  applicant  to  show 
cause  why  he  should  not  be  prosecuted* 
The  notice  was  issued  and  the  2nd  Decem 
ber  19J5  was  fixed  for  proceedings.  The 
applicant  who  is  the  Manager  of  a  large 
business  in  Lucknow  sent  a  Counsel  to  show 
cause  why  he  should  not  be  prosecuted. 
The  Railway  journey  from  Lucknow  to 
Partabgarh  takes  about  3£  hours  The 
Deputy  Commissioner  as  District  Magis- 
trate refused  to  listen  to  the  Counsel  passing 
the  following  order:  "Application  is  reject- 
ed. The  man  must  put  in  an  appearance 
personally.  I  also  notice  that  he  has  not 
yet  complied  with  the  orders  issued  to 
him  to  deliver  the  car.  He  is  represented 
by  Counsel,  who  has  been  directed  to  in- 
struct his  client  to  arrange  for  the  delivery 
of  the  car  at  Partabgarh  at  once.  I  am 
refraining  from  issuing  a  warrant  for  his 
person  as  it  is  possible  that  he  may  have 
been  under  some  delusion  about  his  liabi- 
lity. His  Counsel  has  been  instructed  to 
inform  his  client  for  personal  appearance 
on  the  8th  at  Baispur."  Baispur,  I  am 
given  to  understand,  is  digtant  20  miles  by 
road  from  Partabgarh.  At  this  period  the 
applicant  filed  an  application  before 
this  Court  which  directed  stay  of  pro- 
ceedings. 

I  do  not  express  an  opinion  as  to  the 
amount  which  is  due  to  the  applicant  in 
respect  of  the  Moon  Car,  but  there  can  be 
no  doubt  as  to  the  fact  that  his  plea  that 
under  a  factor's  lien  he  is  entitled  to  retain 
the  car  until  the  general  balance  of  his 
account  is  nettled  is  a  plea  which  cannot 
be  ignored.  In  respect  of  the  criminal 
charges  which  the  Deputy  Commissioner 
proposes  to  make  against  him  it  is  sufficient 
to  say  that  the  applicant  cannot  possibly 
be  considered  to  have  offered  any  resistance 
to  the  taking  of  any  property  "by  the  law- 
ful authority  of  any  public  servant  nor 
can  he  be  considered  to  have  voluntarily 
obstructed  a  public  servant  in  the  discharge 
of  his  public  functions.  I  fine 
hard  to  understand  how  the  L 
Magistrate  was  able  to  convince  hin 
that  anything  done  by  the  applicant  could 
possibly  have  rendered  him  liable  to 
prosecution  under  the  Criminal  Law.  I, 
therefore,  quash  the  whole  proceedings 
and  direct  the  record  to  be  returned. 

N.  H,  Proceedings  quashed. 


CHIRAGH  DIN  V.  BMPBUOH.  [92  f  0.  1926] 

LAHORE  HIGH  COURt. 

CRIMINAL  APPEAL  No.  862  OF  1925. 

November  2 1,1925. 

Present:— Mr.  Justice  Zafar  Ali. 

CHIRAGH  DIN— ACCUSED— APPELLANT 

versus 
EMPEROR— RESPONDENT. 

Penal  Code  (Act  XLV  of  I860),  s.  198— Criminal 
Procedure  Code  (Act  V  of  1898),  w  195,  1^76— Perjury 
--Statement  literally  true—Complaint,  whether  should 
be  made 

A  Court  is  not  justified  in  making  a  complaint  of 
perjury  against  a  person  in  respect  of  a  statement 
which  is  literally  and  stnotly  speaking  true. 

Criminal  appeal  from  an  order  of  the  Dis- 
trict Judge,  Sialkot,  dated  the  7th  August 
1925. 

Dr.  Nand  Lai,  for  the  Appellant. 

Mr,  D  R.  Sawhney,  Public  Prosecutor, 
for  the  Respondent. 

JUDGMENT.— This  is  an  appeal  from 
an  order  of  the  District  Judge  of  Sialkot 
accepting  an  application  under  s.  476- A,  Cr. 
P.  CM  for  making  a  complaint  against  the 
appellant  under  s  193,  Indian  Penal  Code. 

The  facts  are  briefly  as  below: — 

Two  cross- cases  between  the  same  parties, 
one  fora  specified  sum  and  the  other  for 
rendition  of  accounts,  we  re.  pending  in  two 
different  Courts:— Chaudhuri  Chiragh  Din 
appellant  being  the  plaintiff  in  the  former 
and  defendant  in  the  latter.  In  the  case  in 
which  he  was  the  defendant  the  plaintiffs 
offered  to  abide  by  his  statement  if  made 
on  the  oath  proposed  by  them.  He  agreed 
to  make  the  statement  on  that  oath  and  a 
Commissioner  was  appointed  to  record  his 
statement  after  administering  the  oath. 
But  he  omitted  to  appear  before  the  Com- 
missioner and  subsequently  when  question- 
ed in  the  other  Oomt  whether  he  had 
agreed  to  make  a  statement  on  oath  he 
stated  that  he  had  agreed  to  do  so  in  that 
case  only  but  not  with  regard  to  the  one 
instituted  by  him.  This  was  literally  and 
strictly  speaking  true,  but  as  the  two  cases 
were  interdependent  the  decision  in  the  one 
wr\"M  have  governed  the  other  also.  Such 
g  the  facts,  the  Court  below  was  not 
^stifled  in  ordering  prosecution  of  Chiragh 
Din  for  perjury,  I,  therefore,  accept  the 
appeal  and  direct  the  withdrawal  of  the 
complaint. 

z,  K,  Appeal  accepted. 


[921,  C.1926J 


RUKMANI  AMMAL  V.  MUTHUSWAMI  REDDT. 


747 


MADRAS  HIGH  COURT, 

CRIMINAL  RBVISION  OASES  Nos.  779  OF  1924 

AND  55  OP  1923. 

(CRIMINAL  REVISION  PJBTITIOMB  Nog.  (551 
OF  1924  AND  52  OF  1925.) 

August  6,  1925. 

Present: — Mr,  Justice  Jackson. 
RUKMANI  AMMAL— PETITIONER 

versus 
MUTHUSWAMI  REDDI— RESPONDENT. 

Penal  Code  (Act  XLV  of  I860),  a.  405— Criminal 
breach  of  tiust — Nominal  sale  of  engine  by  person 
entrusted,  whether  amounts  to  offence. 

Accused  who  was  entrusted  with  an  engine  exe- 
cuted a  nominal  sale-deed  therefor  to  a  third  person 
but  the  engine  was  not  removed  from  its  place 
and  was  still  available  to  the  true  owner  who  suffered 
no  loss  by  the  sale. 

Held,  that  on.  these  facts  a  conviction  of  the  accused 
for  criminal  breach  of  trust  was  not  sustainable  [p 
748,  col.  1.] 

Petitions,  under  ss.  435  and  439  of  the  Or. 
P.  0.,  1898,  praying  theHigh  Court  to  revise 
the  judgment  of  the  Court  of  the  Sub- 
Divisional  Magistrate,  Cuddalore,  in  Crimi- 
nal Appeal  No.  66  of  1924,  preferred  against 
that  of  the  Court  of  the  Stationary  Second 
Class  Magistrate,  Cuddalore,  Taluk,  in  C,  0. 
No.  108  of  1924. 

Mr.  V.  L.  E  thirdj,  for  the  Petitioner. 

The  Public  Prosecutor,  for  the  Crown. 

ORDER. — The  petitioner  has  been  fined 
Rs,  50  (Sub -Magistrate  and  Sub-Divisional 
Magistrate  of  Cuddalore,  in  C.  0.  No.  108 
and  0.  A.  No,  66  of  1924)  for  criminally  mis- 
appropriating an  agricultural  engine  valued 
at  Ks.  2,000.  Admittedly  he  borrowed  this 
engine  under  Ex.  A  from  his  relation 
Muthuswami  Reddi,  P.  W.  No.  1,  who  says 
that  he  was  looking  after  it  for  the  real 
owner  Muthuswami  Reddi,  P.  W.  No,  4.  The 
petitioner  says  that  he  also  had  a  lease  of 
the  engine  from  Muthuswami  Reddi  Ex.  II, 
which  the  lower  Appellate  Court  seems 
prepared  to  concede,  para,  4.  The  alleged 
breach  of  trust  was  the  sale  of  this  engine 
by  petitipner  to  his  aunt,  the  wife  of  Muthu- 
swarni  Reddi's  brother,  D.  W.  No.  1,  This 
witness  says  that  the  engine  is  family  pro- 
perty. He  is  disbelieved  but  unless  the 
lower  Courts  accepted  some  theory  of  a 
family  quarrel,  it  is  difficult  to  understand 
why  they  inflicted  such  paltry  sentences 
The  Sub -Magistrate  fined  the  petitioner 
Rs.  100  which  the  Sub-Divisional  Magistrate 
reduced  to  Rs.  50.  If  a  man  criminally 
misappropriates  property  of  another  worth 
Rs.  2,000  it  is  not  an  extenuating  circum- 
eta#ce  to  plead  that  be  and  his  victim  are 


closely  related ;  the  extenuating  circum- 
stance would  be  that  there  has  been  no  real 
misapplication. 

This  is  the  point  taken  in  this  petition. 
Petitioner  was  given  domination  over  the 
property  by  Muthurama  Reddi  and  it  is 
urged  he  has  not  converted  it  to  his  own 
use,  or  disposed  of  it  by  selling  it  to  his 
aunt,  a  mere  paper  transaction  nor  has  he 
caused  any  wrongful  loss  to  its  owner 
Muthuveera  Reddi  for  whom  the  engine  is 
still  available.  No  one  complains  that  the 
aunt  has  suffered  wrongful  loss. 

The  question  for  determination  may  be 
pinned  to  illustration  (6)  of  s  405,  Indian 
Penal  Code.  If  A  sells  the  furniture  by  a 
deed  of  sale  to  B  but  does  not  remove  it, 
and  if  B  makes  no  complaint,  can  Z complain 
that  there  has  been  criminal  breach  of 
trust. 

How  far  wrongful  loss  or  gain  has  re- 
sulted to  A  01  B  from  the  sale  to  B  is  not 
in  question.  Therefore  it  would  not  be  'a 
dishonest  sale,  unless  it  could  be  proved 
that  A  intended/?  to  remove  the  furnitureand 
so  cause  loss  to  Z.  In  the  case  of  furniture 
it  would  not  be  difficult  peihaps  to  prove 
such  dishonesty  ;  but  it  is  more  difficult  in 
regard  to  an  engine  which  no  one  moved  or 
apparently  intended  to  move  from  the  place 
where  Muthurama  Reddi  allowed  the  peti- 
tioner to  put  it. 

Suppose  that  instead  of  an  engine  it  had 
been  land  over  which  the  petitioner  had 
been  given  dominion  and  in  respect  of 
which  he  executed  a  sale-deed  to  a  third 
person,  would  that  be  criminal  breach  of 
trust  as  defined  by  s.  405?  Section  403  refers 
in  terms  to  moveable  property,  and  it  has 
been  ruled  that  s.  404  must  be  read  with  it 
as  also  limited  to  moveable  property,  Reg.  v. 
Girdhdr  Dharamdas  (1).  In  Jugdown  Si7iha 
v.  Queen-Empress  (2)  it  has  been  held  that 
property  referred  to  in  s  405  must  as  in  s. 
403  be  moveable  property  and  that,  as  it 
has  been  ruled  in  Reg.  v.  Girdhar  Dharama- 
das  (1)  criminal  breach  of  trust  cannot  be 
committed  in  respect  of  immoveable  pro- 
perty As  matter  of  fact  the  Bombay  ruling  as 
I  have  shown  above,  makes  no  reference  to 
criminal  breach  of  trust,  and  the  Calcutta 
ruling  must,  I  think,  be  based  on  the  general 
assumption  that  if  a  man  cannot  move  a 
thing  away,  he  cannot  dishonestly  convert 
it  to  his  own  use.  In  the  majority  of  cases 
that  assumption  may  be  correct  but  the 

(1)  6  B  H.  0.  R.  Or,  33. 

(9)  23  0,  372;  12  Ii*d.  Dec.  (H.  s.)  248, 


748 


SiDI ft  V.  EMPEROR. 


(92  I  0. 


wording  of  s.  405  is  very  comprehensive  and 
I  think  it  dangerous  to  lay  down  any  abso- 
lute rule.  For  the  purpose  of  this  case,  it 
is  sufficient  to  find  that  although  the  lower 
Courts  have  not  said  so  in  so  many  words 
the  sentences  inflicted  show  that  they 
regarded  the  case  as  essentially  civil  in 
character,  and,  moreover,  there  is  no  clear 
proof  of  intention  to  cause  wrongful  loss 
either  to  Muthurama  or  to  Muthuveera 
Reddi.  In  fact  the  lower  Appellate  Court 
has  given  no  finding  of  dishonesty ;  it 
merely  records  that  the  petitioner  disposed 
of  the  engine  "  in  violation  of  the  trust*1 
obviously  something  more  than  breach  of 
trust  is  necessary  to  bring  the  case  with- 
in the  purview  of  a  Criminal  Court.  For 
the  above  reason,  I  set  aside  the  convic- 
tion and  order  the  fine  to  be  refunded. 
No  order  under  s.  577,  Cr.  P.  0.,  is  necessary 
in  these  circumstances  and  the  propriety  of 
that  passed  by  the  Sub -Divisional  Magistrate 
(which  I  now  cancel)  need  not  be  questioned. 
I  would  only  observe  that  before  passing  it 
he  would  have  been  well-advised  to  give 
notice  to  the  parties  concerned. 

v.  N.  v. 

z.  K.  Conviction  set  aside. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  REVISION  APPLICATION  No.  251 

OP  1925. 

November  26,  1925. 
Present :— Mr,  Kincaid,  J.  C.,»and 

Mr.  Lobo,  A.  J.  C. 
8ID1K — ACCUSED — APPLICANT 

versus 

EMPEROR  (AHMAD  ALT  AND  OTHBKS) 
—OPPOSITE  PARTY. 

Criminal  Procedure  Code  (Act  V  of  1898),  s.  850— 
Transfer  of  case—  De  novo  trial,  what  is— Proce- 
dure 

Where  a  case  in  which  a  charge  has  been  framed 
is  transferred  to  the  Court  of  another  Magistrate  and 
under  the  proviso  to  s.  350  (1)  of  the  Or.  P.  0.  tha 
accused  claims  a  de  novo  trial  the  Magistrate  must 
recommence  the  trial  and  not  merely  allow  farther 
cross-examination  of  the  complainant  and  other  pro- 
secution witnesses  and  generally  proceed  with  the 
case  from  the  stage  where  the  charge  was  framed. 

Tanauturi  Sriramulu  v.  Nalam  Krishna  Row,  25 
lud  Gas.  1001;  38  M.  585,  (1914)  M.  W.  N  646;  16  M. 
L.  T,  303;  27  M.  L.  J.  589;  15  Or.  L.  J.  673,  distin- 
guished. 

Hnin  Yin  v.  Than  Pe,  44  Ind.  Cas.  337;  9  L.  13.  R.  92; 
19  Cr.  L.  J.  321;  11  Bur.  L.  T  58,  relied  upon. 

Sobh  Nath  Singh  v.  Emperor,  12  C,  W.  N«  138;  6 
Or,  U«J,  431,  referred  to, 


Application,  under  s.  439,  Cr.  P.  C.,  direct- 
ing the  Resident  Magistrate,  Kotri,  to  pro- 
ceed with  the  case  pending  before  him 
under  s.  363,  Penal  Code,  from  the  stage  of 
charge. 

Mr.  T.  V.  Thadhani,  for  the  Applicant. 

Mr.  T.  G.  Elptiinston,  Public  Prosecutor, 
for  the  Crown.  * 

JUDGMENT*— In  this  revisional  ap- 
plication the  facts  are  that  the  applicant 
filed  a  complaint  before  the  Sub-Divisional 
Magistrate  of  Kotri  on  which  the  Sub- 
Divisional  Magistrate  on  1st  September  1924 
issued  process  under  s.  363,  Indian  Penal 
Code.  Apparently  after  hearing  the  evi- 
dence for  the  prosecution,  the  Sub-Divi- 
sional Magistrate  framed  a  charge  against 
the  accused  in  the  case  on  the  1st  of  June 
1925.  On  16th  June  1925  he  transferred 
the  case  to  the  Resident  Magistrate,  Kotri, 
he  being  himself  under  orders  of  transfer. 
Before  the  Resident  Magistrate,  the  accused 
in  the  case  exercising  the  option  given  to 
them  by  the  proviso  to  s.  350,  Cr.P.  C.,  claim- 
ed what  is  usually  known  as  a  de  novo  trial. 
The  learned  Resident  Magistrate  has  acceded 
to  their  request  and  proposes  to  hold  a  de 
novo  trial.  Against  this  order,  the  appli- 
cant who  is  the  complainant  in  the  case, 
applies,  in  revision  to  this  Court  and  the 
point  made  by  his  Counsel  before  us  is  that 
the  learned  Resident  Magistrate  has  no 
right  to  re-examine  and  re-cioss-examine 
the  prosecution  witnesses  in  the  case  ;  that 
under  s.  350  all  he  can  legally  do  is  to 
allow  further  cross-examination  of  the  com- 
plainant and  the  other  prosecution  witness- 
es, and  generallly  to  proceed  with  the  case 
from  the  stage  where  the  charge  was  framed. 

Section  350  of  the  Cr.  P.  C.  appears  to 
us  to  be  perfectly  clear  as  to  what  the  duties 
of  a  Magistrate  are  to  whom  a  case  has 
been  transferred  by  another  Magistrate 
who  has  heard  it  in  part.  Under  cl  (1) 
of  that  section  the  Magistrate  has  a  discre- 
tion to  re-summon  the  witnesses  and  rc-con»- 
mence  the  inquiry  or 'trial.  If,  however, 
he  does  not  do  so  <r^o  motu,  he  is  bound  to 
do  so  if  asked  by  the  accused  under  proviso 
(a)  to  s.  350  which  states  "In  any  trial  the 
accused  may,  when  the  Second  Magistrate 
commences  his  proceedings,  demand  that 
the  witnesses  or  any  of  them  be  re  sum- 
moned and  re-heard. "  Whether,  therefore, 
the  Second  Magistrate  acts  under  sub  s. 
(1)  of  s.  350  and  exercises  his  discretion 
in  allowing  a  de  novo  trial  or  whether  the 
accused  demands  a  de  novo  trial  under  the 


DtWAN  CHIN  V.  BMPEROR, 


749 


proviso  it  is  clear  that  the  Second  Magis- 
trate has  to  re-summon  the  witnesses  and 
re-hear  them.  It  is  argued  that  the  word 
"re^hear"  is  to  be  interpreted  as  equivalent 
to  "hear  further."  We  do  not  find  any- 
thing in  s.  350  to  support  such  a  conten- 
tion. 

Counsel  for  the  applicant  argued  that 
the  ruling  reported  as  Tanguturi  Sriramuhi 
y.  Nalam  Krishna  Row  (1)  supported  his 
interpretation  of  the  section.  A  perusal, 
however,  of  the  ruling  makes  it  clear  that 
this  is  not  so.  All  that  is  then  decided  is  that 
the  Second  Magistrate  cannot  ignore  the 
charge  framed  by  his  predecessor  and  that 
whatever  order  he  passes  after  re-summon- 
ing and  re  -hearing  the  prosecution  witnesses 
is  an  order  of  acquittal  and  not  one  of  dis- 
charge. 

On  the  other  hand  the  case  reported  as 
Hnin  Zin  v.  Than  Pe  (2)  a  decision  of  the 
Lower  Burma  Chief  Court  which  followed 
the  ruling  of  the  Calcutta  High  Court  in 
Sobh  Nath  Singh  v.  Emperor  (3)  is  directly 
against  the  contention  of  Counsel  for  the 
applicant.  In  that  case,  a  Magistrate  after 
hearing  the  evidence  of  the  prosecution 
had  framed  a  charge.  The  case  was  then 
transferred  to  another  Magistrate  who  re- 
summoned  the  witnesses  for  the  prosecu- 
tion, read  over  to  them  their  previous  de- 
positions and  allowed  them  to  be  further 
cross-examined.  It  was  held  that  this  was 
clearly  no  compliance  with  the  law ;  that 
the  right  given  to  the  accused  by  s.  350 
was  in  order  that  he  might  have  the  very 
great  benefit  of  the  Magistrate  having  the 
witnesses  examind  and  cross-examined  in 
his  presence  so  that  he  might  see  and 
note  their  demeanour  and  manner  of  giving 
evidence,  and  that  when  the  accused  claims 
a  de  novo  trial  the  Magistrate  must  re-com- 
mence the  trial. 

We  are  of  opinion  that  there  is  no  sub- 
stance in  this  revisional  application  which 
we,  therefore,  reject. 
z.  K.  Application  dismissed. 

(1)  25  hid  Cas.  1001;    38  M  585,   U919)  M.  W    N 
646;  16  M.  L,   T.  303;  27  M    L.  J.    589;  15  Or  L   J. 
673. 

(2)  44  Ind  Cas.  337,  9  L.  B  K.  92;   19  Cr.  L.  J.  321, 
11  Bur.  L.  T.  58. 

(3)  12  0.  W.  N.  138;  0  Cr.  L,  J.  431. 


LAHORE  HIGH  COURT. 

CRIMINAL  REVISION  PETITION  No.  1535 

OF  1924. 

January  7,  19S5. 

Present;— Mr  Justice  Abdul  Raoof. 

DIWAN  CHAND  AND  ANOTHBB-AOOOSBD— 

PETITIONERS 

versus 
EMPEROR— RESPONDENT. 

Legal  Practitioner  Act  (XV III  of  1870),  s  36, 
action  under-  Necessity  fn  caution— Defence  eii- 

efiection36  of  the  Legal  Practitioners  Act  being 
drastic  and  somewhat  exceptional,  a  great  deal  ot 
care  and  caution  is  necessary  before  taking  action 
under  it  and  the  person  affected  must  ba  given  full 
opportunity  of  producing  defence  e\  idence 

Petition  for  revision  of  an  order  of  the 
District  Magistrate,  Gujrat,  dated  the  13th 
October  1924. 

Mr.   Anant  Ram,  for  the  Petitioners. 

The  Government  Advocate,  for  the  Re- 
spondent. 

JUDGMENT*— On  the  complaint  of 
the  Bar  Association,  Gujrat,  the  petitioners 
were  called  upon  to  show  cause  why  their 
names  should  not  be  included  in  the  list 
of  touts.  The  petitioners  filed  written 
statements  and  in  support  of  their  defence 
they  applied  to  the  Court  to  summon  a 
large  number  of  witnesses  out  of  whom 
only  some  were  examined  by  the  Court  and 
the  rest  were  not  Twenty-six  witnesses  were 
put  down  in  the  list  of  Abdul  Hak  petitioner 
out  of  whom  only  two  were  summoned  and 
examined.  Out  of  eighteen  witnessesof  Diwan 
Chand  petitioner  four  only  were  summoned 
and  examined.  Seventeen  witnesses  were 
common  to  both  the  petitioners  out  of  whom 
only  seven  were  summoned  and  examined.  As 
to  the  rest  the  Court  probably  acting  under 
s.  257  of  the  Cr.  P.  0.  held  that  as  the 
petitioners  intended  to  cause  delay  and 
vexation  the  summoning  of  all  the  witnesses 
was  not  necessary.  After  considering  the 
case  on  the  materials  before  it  the  Court 
declared  the  petitioners  to  be  touts. 

The  provisions  of  s.  36  of  the  Legal 
Practitioners  Act  are  somewhat  exceptional 
and  of  a  drastic  nature,  and  a  great  deal 
of  care  and  cautiou  is  necessary  before  ac- 
tion is  taken  against  anybody.  The  peti- 
titionera  complain  that  full  opportunity 
was  not  given  to  them  to  meet  the  case  for 
the  prosecution.  In  my  opinion  there  is 
force  in  this  contention.  I,  therefore,  ac- 
cept this  petition  for  revision  and  send 
this  case  back  to  the  learned  District  Magis- 


750 


KAZAR  SHAri  t>.  BMPBROR. 


trate  with  the  direction  that  it  may  be 
placed  upon  its  original  number,  that  the 
petitioners  bo  given  full  opportunity  to 
produce  evidence  and  that  the  case  should 
be  decided  after  the  consideration  o£  their 
full  defence, 
R.  L.  Petition  accepted. 

N.  H. 


MADRAS  HIGH  COURT. 

CRIMINAL  REVISION  CASES  Nog.  411  AND  412 

OP  1925. 

(CRIMINAL  REVISION  PETITIONS  Nos.  345 

AND  346  OF  1925.) 

August  7,  1925. 

Present: — Mr.  Justice  Devadoss  and 

Mr.  Justice  Waller. 

IN  CR.  REV.  CASE  No.  411  OF  1925. 

R.  V.  KALIAPPA  GOUNDAN  AND  OTHERS 

— ACCUSED — PETITIONERS. 
IN  CR.  REV.  CASE  No.  412  OF  1925. 
R.  V,  MANIAMSELLAPPA  GOUNDAN 

AND  OTHERS — ACCUSED— PETITIONERS. 

Criminal  Procedure  Code  (Act  V  of  2808),  ss  1+39, 
4#4 — Withdrawal  of  case,  application  /o?-,  rejection 
of  —Discretion  of  Court  —Revision 

Where  a  Sessions  Judge  in  rejecting  an  applica- 
tion by  the  Public  Prosecutor,  under  s.  494,  Or,  P.  C  , 
to  withdraw  a  case,  exercises  a  judicial  discretion  in 
a  proper  way,  the  High  Court  will  not  interfere  with 
his  order  in  revision. 

Petitions,  under  ss,  435  and  439  of  the 
Cr.  P.  C.,  1898,  praying  the  High  Court  to 
revise  the  order  of  the  Court  of  the  Addi- 
tional Sessions  Judge,  Coimbatore,  Jated 
the  26th  June  1925,  and  made  in  Sessions 
Cases  Nos.  51,  52  and  53  of  1925, 

Dr.  Swaminathan,  for  the  Petitioners, 

The  Public  Prosecutor,  for  the  Crown. 

ORDER. — These  are  applications  to  re- 
vise the  order  of  the  Additional  Sessions 
Judge  of  Coimbatore  refusing  permission 
to  withdraw  Sessions  Cases  Nos.  51,  52  and 
53  of  1925.  Dr.  Swaminathan  contends 
that  the  learned  Judge  has  misdirected 
himself  as  to  what  he  should  do  in  a 
case  of  this  kind.  The  application  was 
made  by  the  Public  Prosecutor  under 
s.  494  and  he  gave  certain  reasons  for  the 
withdrawal  of  the  cases.  The  Sessions 
Judge  has  considered  the  reasons  and  has 
come  to  the  conclusion  that  these  cases 
were  not  fit  cases  for  withdrawal.  He  relies 
upon  the  decieioa  in  Rajani  Kanta  Shaha  v. 


[92  L  0.  l«Si} 

Idris  Thakur  (1),  and  says  that  where  there 
is  evidence  against  the  accused  which,  if 
believed,  would  end  in  conviction,  it  wguld 
not  be  proper  to  give  permission  to  with- 
draw a  case  under  s.  494.  But  that  is  not 
the  only  reason  which  would  guide  a 
Court  in  granting  or  refusing  permission. 
In  this  case  the  learned  Additional  Ses- 
sions Judge  has  exercised  his  discretion  in 
refusing  permission  and  we  cannot  say 
that  he  has  improperly  exercised  his  dis- 
cretion. The  reasons  that  he  gives  may 
not  be  the  only  reasons  for  an  order  of 
this  kind  but  that  is  no  ground  for  saying 
that  he  has  not  exercised  a  judicial  discre- 
tion in  granting  or  refusing  permission 
to  withdraw  a  case  where  a  Judge  has  exer- 
cised judicial  discretion  in  the  proper 
way,  the  High  Court  will  be  very  reluct- 
ant to  interfere  with  his  discretion  and  we, 
therefore,  decline  to  interfere  with  his  order. 
The  petitions  are  dismissed. 

V.  N.  V. 

z.  K,  Petitions  dismissed. 

(1)  64  Ind  Cas  280;  48  0   1105;  25  0.  W    N.  615, 
3i  0  L.  J.  51,  22  Or.  L.  J    760 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL  APPEAL  No.  133  OF  1925. 

October  17,  1925. 
Present  /—Mr.  Kincaid,  J.  C.,  and 

Mr.  Kennedy,  A.  J.  C. 
NAZAR  SHAH— APPBLLANT 

versus 
EMPEROR—OpposiTB  PARTY. 

Penal  Code  (Act  XLV  of  I860),  s,  397— "Uses" 
meaning  of — Use  of  handle  of  axet  whether  use  of 
deadly  weapon. 

The  word  "uses"  in  s.  397  of  the  Penal  Code  should 
be  construed  in  a  wide  sense  so  as  to  include  not 
merely  cutting,  stabbing  or  shooting  (as  the  case  may 
be)  but  also  carrying  the  weapon  for  the  purpose  of 
overawing  the  person  robbed,  [p  751,  col.  2J 

Nga  1  v  Emperor,  14  Ind.  Gas  651;  13  Cr  L.  J.  267; 
5  Bur.  L.  T.  9;  6  L.  B.  K  41,  referred  to. 

A  hatchet  being  a  deadly  weapon,  it  will  be  deemed 
to  have  been  used  as  a  deadly  weapon  whether  it  is 
its  head  01  handle  that  is  used.  [p.  751,  col  2] 

Appeal  against  the  judgment  of  the 
Additional  Sessions  Judge,  Hyderabad, 
(Bind),  dated  the  25th  August  1925. 

Mr.  Motiram  Idanmal,  for  the  Appellant. 

Mr.  T.  G.  Blphinston,  Public  Prosecutor, 
for  the  Crown, 

JUDGMENT.— The  facts  of  this  case 
have  been  dealt  with  exhaustively  in  the 
able  judgment  of  the  learned  Additional 
Sessions  Judge.  They  are  shortly  these  : 

The  complainant  Assanznal  was  going  to 


o, 


NAZAR  SHAH  V.  EMPEROR. 


751 


Mehar  village  on  the  1st  of  February  1925. 
He  had  taken  with  him  his  wife  and  his 
son,  a  little  boy  aged  five.  On  the  2nd  of 
February  they  were  going  through  the 
jungle  when  they  were  stopped  by  a  man 
who  caught  hold  of  the  reins  of  their  horse 
and  robbed  them  of  Rs.  12  in  cash,  a  trunk, 
some  clothes  and  some  ornaments, 

That  night  Assanmal  took  his  wife  and 
his  son  to  a  village  called  Razi  Jatoi. 
There  he  informed  the  mukhi  Duhladino- 
mal,  Bansimal  a  zemindar  and  one  Umed 
All  kamdar  of  Mahomed  Khan  not  only 
that  he  had  been  robbed  but  that  he 
had  been  robbed  by  the  accused  Nazar 
Shah.  The  next  morning  he  went  to  Kazi 
Ahmed  where  he  made  a  similar  re- 
port to  the  mukhi  Qianmal  The  third 
day  he  went  to  Nawabshah  reaching  it  in 
the  evening.  On  the  4th  day  he  told  the 
story  to  mukhi  Hotchand,  who  took  him  to 
the  District  Superintendent  of  Police, 
Nawabshah.  The  District  Superintendent 
of  Police  recorded  Assanmal's  complaint 
^Ex.  V)  and  forwarded  it  for  investigation 
to  the  Sub-Inspector  of  Kazi  Ahmed,  Abdul 
Rehman  (Ex.  34),  Assanmal  showed  him 
the  scene  of  the  crime  and  the  Sub-Inspec- 
tor prepared  a  mashtrnama,  recorded 
various  statements  and  arrested  Nazar  Shah. 
The  Police  sent  Nazar  Shah  to  the  First 
Class,  Magistrate,  who  convicted  him  under 
8.  394  of  the  Indian  Penal  Code  and  sentenc- 
ed him  to  undergo  12  months'  rigorous 
imprisonment.  The  learned  Sessions 
Judge  thinking  that  the  offence  was  graver 
than  that  for  which  the  accused  had  been 
tried  ordered  his  committal.  On  the  25th 
of  August  1925  he  convicted  Nazar  Shah 
under  s.  397  of  the  Indian  Penal  Code  and 
sentenced  him  to  undergo  rigorous  imprison- 
ment for  seven  years. 

Against  this  decision  the  present  appeal 
has  been  filed.  We  have  listened  with 
great  inteiest  to  the  arguments  advanced 
on  the  appellant's  behalf  by  his  Pleader, 
Mr.  Motiram.  We  do  not  think,  however, 
that  on  the  facts  it  is  possible  to  differ 
from  the  views  of  the  learned  Additional 
Sessions  Judge  and  of  the  learned  Magis- 
trate, who  held  that  it  was  Nazar  Shah  who 
robbed  Assanmal  Enmity  has  been  alleged 
but  that  has  be^n  very  ably  dealt  with  by 
the  learned  Additional  Sessions  Judge.  As 
regards  the  late  reporting  of  the  crime,  it 
must  be  borne  in  imnd  that  the  complainant 
had  received  a  sharp  blow  from  the  handle 
of  the  axe  and  that  both  he  and  his  wife 


must  have  suffered  a  severe  shock,  when 
robbed  in  broad  day-light  in  the  jungle. 

The  legal  point  pressed  with  great  ability 
by  the  learned  Pleader  deserves  more  con- 
sideration. The  learned  Pleader's  argument 
amounts  to  this.  Although  a  hatchet  is  a 
deadly  weapon,  stillit  was  not  used  as  a  dead- 
ly weapon  by  the  appellant.  He  did  not  use 
the  axe  head  but  used  the  axe-handle.  An 
axe  handle  is  not,  in  any  sense,  a  deadly 
weapon.  Giving  the  matter  our  best  con- 
sideration, we  do  not  think  that  we  can 
accept  this  argument.  Had  the  axe-handle 
been  separated  from  the  axe  head,  it  might 
have  been  said  that  it  was  not  a  deadly 
weapon  But  the  evidence  is  that  it  was  an 
entire  axe  and  an  axe  cannot  be  described 
in  any  other  way  than  as  a  deadly  weapon. 
The  whole  point  has  been  amply  and  care- 
fully considered  by  Mr.  Justice  Twomey  in 
the  case  of  Nga  I  v.  Emperor  (I).  The 
learned  Judge  observed  "It  may  be  argued 
that  to  'use1  a  stabbing  weapon  is  to  stab 
some  person  with  it,  to  'use'  a  cutting 
weapon  is  to  cut  some  person  with  it,  and 
to 'use1  a  gun  is  to  shoot  at  some  person 

with  it  .... 

But  it  is  not  clear  that  the  word  'uses'  in 
s.  397  should  be  interpreted  with  such 
strictness  The  very  next  s  398  imposes  a 
minimum  punishment  of  seven  years' 
imprisonment  on  persons  convicted  of 
meiely  cany  ing  a  deadly  weapon  when 
attempting  to  rob  It  seems  probable  that 
the  Legislature  intended  to  impose  the 
same  minimum  T\here  the  robbery  is 
actually  completed.  1  am  inclined  to  think, 
therefore,  that  the  word  'uses'  in  s.  397 
should  be  construed  in  a  wide  sense  so  as 
to  include  not  merely  cutting,  stabbing, 
shooting  (as  the  case  may  be)  but  also 
carrying  the  weapon  for  the  purpose  of 
overawing  the  person  robbed." 

In  this  case,  we  have  but  little  doubt  that 
had  Assanmal  offered  any  serious  resistance, 
Nazar  Shah  would  have  used  the  axe  head 
and  not  the  axe-handle.  Overawed  by  the 
deadly  weapon  carried  by  Nazar  Shah, 
Assanmal  made  no  resistance,  so  Nazar  Shah 
effected  his  purpose  by  a  mere  blow  with 
the  handle.  Now,  if  the  offence  committed 
by  Nazar  Shah  falls  under  s.  397,  the 
Legislature  requires  his  imprisonment  for 
not  less  than  seven  years.  This  is  the 
sentence  which  the  learned  Additional 
Sessions  Judge  has  passed  upon  the  appel- 

(1)  H  Ind  Gas,  651;  13  Cr  L.  J.  267,  5  Bur.  L  T  9* 
6  L.  B,  R,  41.  •  •  i 


752 


AH  KHATOG  V.  EMPSROR, 


lant  and  it  is  not  in  our  power  to  reduce  it. 
We,  therefore,  confirm  the  lower   Couit's 
finding  and  sentence  and  dismiss  this  appeal, 
p.  B.  A. 
z.  K.  Appeal  dismissed. 


RANGOON  HIGH  COURT. 

CRIMINAL  APPEAL  No.  545  OF  1925. 

June  30,  1925. 

Present—Mr.  Justice  Godfrey. 
AH  KHAUNG-APPELLANT 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  l$98)t  ss  256, 
$$,  537— -Examination  of  accused—Further  cross- 
examination  of  prosecution  witnesses— Omission  to 
examine  accuseds-Illegality 

The  examination  of  a  witness  cannot  be  regarded 
as  completed  until  the  last  stage  at  which,  the  law 
authorizes  its  continuance  has  been  passed,  that  is  to 
say,  until  any  supplementary  cross-examination  which 
the  Court  may  allow  is  over  So  that  under  s  342, 
Or  P.  0  ,  an  accused  person  has  a  right  to  be  examined 
and  to  etate  his  case  after  the  further  cross-examina- 
tion of  prosecution  witnesses,  even  though  he  has 
already  been  examined  before  the  charge  was  framed 
and  he  was  called  on  for  his  defence.  This  right  is 
fundamental  and  an  omission  to  so  examine  the 
accused  is  an  illegality  which  vitiates  the  trial  and 
not  a  mere  error  or  irregularity  which  can  be  cured 
by  s.  537  of  the  Code. 

Criminal  appeal  from  an  order  of  the 
Second  Additional  Magistrate,  Rangoon,  in 
Or.  Reg.  No.  312  of  1925. 

JUDGMENT.— The  appellant  in  this 
case  was  convicted  by  the  Second  Addi- 
tional Magistrate,  Rangoon,  under  s.  326, 
Indian  Penal  Code,  of  causing  grievous 
hurt  to  one  Ah  Sein  by  stabbing  him  with 
a  knife,  and  was  sentenced  to  two  years' 
rigorous  imprisonment  on  the  15th  May 
1925. 

It  is  contended  on  his  behalf  on  appeal, 
firstly,  that  the  trial  is  vitiated  by  the 
failure  of  the  Magistrate  to  comply  with 
the  pro  visions  of  s.  342,  Or.  P.  C.,  and  second- 
ly, that  the  evidence  generally  does  not 
warrant  the  conviction.  Section  342  pro- 
vides, amongst  other  things,  that  the  Court 
shall,  for  the  purpose  of  enabling  the  accused 
to  explain  any  circumstances  appearing  in 
the  evidence  against  him,  question  him 
generally  on  the  case  after  the  witnesses 
for  the  prosecution  have  been  examined 
and  before  he  is  called  on  for  his  defence. 

From  the  Magistrate's  record  it  appears 
that  the  appellant  was  examined  and  ques- 
tioned on  the  case  on  the  28th  April  and 
was  charged  and  called  on  for  his  defence 
on  the  2ad  May.  On  the  13th  May,  how- 
ever, he  re-called  for  cross-examination  the 


principal  witness  for  the  prosecution  and 
was  not  further  examined  by  the  Court 
thereafter.  This  is  the  non-compliance 
with  the  provisions  of  s.  342,  Cr.  P.  C.,  com- 
plained of.  Those  provisions  are  clearly 
obligatory;  but  the  difficulty  arises  when 
read  in  conjunction  with  the  provisions  of 
s.  256,  Cr  P.  C.,  which  provides  for  the  re- 
calling of  witnesses  for  the  prosecution  by 
an  accused  for  cross-examination  and  under 
which  it  has  been  held  that  it  is  discretion- 
ary with  the  Court  to  allow  them  to  be  re- 
called for  that  purpose  at  a  later  stage  and 
at  any  period  of  the  defence.  As  pointed 
out  by  Oldfield,  J.,  in  In  re  Madura  Matha 
Vannian  (1),  the  examination  of  a  witness 
cannot  be  regarded  as  completed  until  the 
last  stage  at  which  the  law  authorizes  its 
continuance  has  been  passed,  that  is  to  say, 
until  any  supplementary  cross-examination 
which  the  Court  may  allow.  So  that  an 
accused  person  would  have  a  right  to  be 
examined  and  to  state  his  case  after  the 
further  cross-examination  of  prosecution 
witnesses,  even  though  he  has  already  been 
examined  before  the  charge  was  framed 
and  he  was  called  on  for  his  defence.  That 
is  the  conclusion  come  to  by  the  learned 
Judge  in  that  case,  and  he  further  points 
out  that  that  right  is  fundamental  and 
that  the  omission  to  so  examine  him  cannot 
be  regarded  as  a  mere  error  or  irregular- 
ity, which  could  be  cured  by  s.  537,  Cr.  P. 
C.  The  same  view  has  been  adopted  in 
Gulzari  Lai  v.  Emperor  (2),  where  it  was 
held  that  the  omission  vitiated  the  convic- 
tion, and  in  Remembrancer  of  Legal  Affairs, 
Bengal  v.  Satish  Chandra  Roy  (2),  where  the 
Court  came  to  alike  conclusion. 

For  the  reasons  before  appearing  and 
upon  these  authorities  it  is  clear  that  the 
appellant's  conviction  must  be  set  aside, 
I  am  not  prepared  to  hold,  however,  upon 
the  evidence  as  it  stands  that  there  is  no 
case  against  him  as  it  is  urged  and  I  ac- 
cordingly set  aside  his  conviction  and  direct 
his  re-trial.  It  would  obviously  be  un- 
desirable in  view  of  this  direction  to  dig^uss 
the  criticisms  that  have  been  offered  tn*  'the 
evidence.  The  re-trial  should,  of  course,  be 
before  another  Magistrate. 

z.  K.  Re-trial  directed. 

(1)  71  Ind.  Gas.  252;  45  M,  820;  16  L.  W.  420;  43 
M.  L.  J.  402;  (1922)  M,  W.  N.  601;  A.  I.  R.  1922  Mad. 
512;  24  Cr.  L.  J.  124. 

(2)  71  Ind.  Cas.  51;  49  0.  1075;  24  Cr.  L.  J.  3;  A.  L 
R.  1923  Cal.  164;  39  0.  L.  J.  31. 

(3)  83  Ind.  Caa.  495;  51  C.  924;  39  C.  L.  J,  411; 
A,  I.  R.  1924  OaL  975;  26  Or.  L  J.  15, 


[9tL  0.  1926]  #HANAP£A  OBfeTfY  V.  fiSUtf  KHAN 

MADRAS  HIGH  COURT* 

SECOND  CIVIL  APPEAL  No.  11  QF  1922. 

;    '    August  25, 1*251  * 
Present:— Mr.  Justice  Phillips  and 

Mr.  Justice  Ranxesam. 

THANAPPA  OHETTY  AND  OTHBRS- 

DBFEN  OANT^ — APPELLANTS 

versus 

ESUF  KHAN  SAHIB  AND  ANOTHER— 

PLAINTIFFS  AND  DEFENDANT  No.  1 — 

RESPONDENTS. 

Landlord  and  tenant — Lands,  classification  of,  accoi  d- 
ing  to  permanent  or  'shifting  character  of  cultivation 
-Poll  tax  and  plough  tax,  whether  rent  -Bight  of 
cultivator  to  minor  produce — Madras  Estates  Land  Act 
(I  of  1908),  8  3  (2)  (d)— Villages  in  hilly  tracts,  granted 
in  mam,  whether  estate 

Pnma  facie  a  tenant,  whatever  his  status  as  a 
tenant  may  be,  i  e  ,  whether  he  is  an  occupancy  tenant 
or  a  tenant  from  year  to  year  or  a  tenaiit-at-will,  is 
entitled  to  the  produce  of  the  land  included  in  the 
tenancy  so  long  as  the  tenancy  subsists  [p  756, 
col  I] 

The  lands  in  a  jaghir  in  certain  hilly  tracts  in  the 
South  Arcot  District  were  classified  according  as  the 
cultivation  was  permanent  01  shifting  The  revenue 
of  the  ]aghirdar  \\as  not  derived  on  any  system  of 
land  assessment  Th3  land  which  each  cultivator 
cultivated  from  time  to  time  was  not  measured  and 
assessed  to  rent  The  cultivators  paid  a  plough  tax, 
an  impost  of  a  iixed  amount  per  plough  being  collect- 
ed on  the  number  of  ploughs  a  man  used  They  also 
paid  a  poll  tax  levied  on  the  individual^  of  the  male 
-sex  Each  man  cultivated  where  he  liked  and  as 
much  as  he  liked  reclaiming  the  land  by  clearing  the 
jungle  and  leaving  it  for  a  new  plot  when  the  fertility 
of  the  soil  was  exhausted 

Held,  (1)  that  the  revenue  described  as  poll  tax  and 
plough  tax  must  be  regarded  as  rent  and  the  relation- 
ship of  landlord  and  tenant  subsisted  between,  the 
jaghirdar  and  the  cultivators  ,  [p  755,  col  1  ] 

(2)  that  in  the  absence  of  a  custom  to  the  contrary, 
the  cultivators  were  entitled  to  the  minor  produce 
from,  the  lands  brought  under  actual  cultivation  and 
the  fact  that  before  cultivating  new  lander  formal  per- 
mission was  taken  from  jUJSkghwdar  made  no  differ- 
ence [p.  756,  cols  1  & 2f j^ETv. 

Where  a  number  of  viUaHFra  hilly  tracts  were 
granted  in  tnam  and  there  was  ao  evidence  to  show 
either  that  only  the  revenue  of  the  hills  was  gi  anted 
or  that  the  grantee  did  not  own  the  kudivaram 

Held,  Per  Ramesam,  J ,  that  the  villages  did  not 
constitute  an  "estate"  within  the  meaning  of  s  3  (2)  (d) 
of  the  Madraa  Estates  Land  Act  jj,  755,  col  1  ] 

Sdcon4  appeal  against  a  decree  of  the 
District  Court,  South  Arcot,  in  Appeal 
Suit  No.  131  of  1918,  preferred  againat  that 
of  the  Court  of .  the  District  Munsif,  Tiru- 
koiiur,  in  O,  S.  No.  1368  of  1914.  , 

Messrs.  Q.  V.  AnantaJcrishna  Iyer  and  A . 
V.  ViswanQtha,  Sastry,  for  the  Appellants. 

Messts,  T.  RaTigQchariotr  a&d,  C.  Padma- 
nabha  lyengar,  for  the  Respoucle&ts. ,  * 


n 


the 


right  to  the  whole  minor  produce 
villages  of  Pudur  Jaghir,  and  for 
tion  and  damages.  The  jaghir  of  Pudur 
otherwise  known  as  Ariya  Qoundan  Jaghir 
is  one  of  the  five  estates  situated  in  the 
Kalroyan  Hills.  The  Hills  are  partly  in 
the  Salem  District  and  partly  in  the  South 
Arcot  District.  This  suit  jaghi?  also  is 
partly  in  the  South  Arcot  District  and 
partly  in  the  Salem  District.  The  first  de- 
fendant is  the  present  jaghirdar  or  the  pro- 
prietor of  the  estate.  The  plaintiff  was  the 
lessee  for  six  years  from  the  first  defendant 
of  the  minor  produce  of  the  jaghir  under  a 
registered  lease-deed,  Ex.-A  dated  24th 
August  1908,  which  took  effect  from  10th 
July  1909  to  9th  July  1915.  The  lease  has 
since  been  extended  under  another  deed 
dated  5th  December  1918,  Ex.  B,  for  25 
years,  i  e.,from  9th  July  1915  to  10th  July 
1920.  Defendants  Nos  6  to  63  are  the  culti- 
vators of  the  entire  lands  in  the  jaghir. 
They  claim  a  light  to  the  minor  produce 
and  defendants  Nos.  li  to  63  have  entered 
into  an  agreement  to  sell  it  exclusively  to 
the  second  defendant.  The  plaintiff  alleges 
that  the  action  of  the  defendants  amounted 
to  a  denial  of  the  plaintiff's  right  and 


JUDGMENT. 

Ramesam*  £*— This  appeal  arises  out 
a  suit  for  the  declaration  of  the  plaintiffs' 

" 


caused  damage  to  him  and  sues  for  the 
declaration  and  the  other  reliefs  already 
mentioned  The  first  defendant,  Polighar 
supports  the  plaintiff. 

The  lands  in  the  jaghir  are  classified  as 
(1)  Olavakkadu  that  is,  actually  cultivated, 
permanently  with  ploughs;  (2)  Ponalkadu, 
i.  e  ,  lands  under  shifting  cultivation,  (3) 
Natham,  i.  e ,  house  sites  and  backyards,  (4) 
Alankadu,  i.  e,  jungles.  The  suit  was 
originally  fora  declaration  of  the  plaintiff's 
right  to  the  minor  produce  in  all  the  lands 
of  the  jaghir  and  the  defendants  have 
similarly  asserted  their  right  to  the  minor 
produce  in  all  the  lands  including  even 
Alankadu.  But  in  the  course  ~  of  the  trial 
before  the  District  Munsif,  the  defendants 
have  given  up  their  right  to  the  lands  corii- 
prised  in  the  descriptiori  Alankadu.  Before 
us  the  plaintiff  has  given  up  tbfc  r^ght 
claimed  in  respect  of  Natham,  so\  frlflrt;  tire 
dispute  before  us  relates  only  to  OlavakadU 
and  Ponalkadu  lands.  Both  the  District 
Munsif  and  the  District  Judge  granted  the 
declaration  and  injunction  praydd  for  by 
the  plaintiff.  As  to  damages  while  the 
District  Munsif  gave  a  decree,  the  District 
Judge  reversed  it  in  appeal.  In  this  second 
appeal  the  appellants  are  either  defendant* 
Nos,  3  to  63  or  their  legal  representatives 


fHANAfPA  OHETTy  V. 


KHAK  SAHIB. 


L92L  0.1928] 


The  revenue  of  thePolighar  is  not  derived 
on  any  sj'atem  of  land  assessment.  The  land 
which  each  cultivator  cultivates  from  time 
to  time  is  not  measured  and  assessed  to 
rent,  nor  is  the  value  of  the  produce  he 
raises  computed  and  a  share  taken  by  the 
Polighar. '  The  cultivators  pay  a  plough 
tax,  an  impost  of  Es.  1-4  0  per  plough  being 
collected  on  the  number  of  ploughs  a  man 
uses.  They  also  pay  a  poll  tax  levied  on 
the  individuals  of  the  male  sex.  Married 
men  pay  Rs.  2  and  bachelors  annas  8,  Each 
man  cultivates  where  he  likes  and  as  much 
as  he  likes  reclaiming  the  land  by  clearing 
away  the  jungle  and  leaving  it  for  a  new 
plot  when  the  virgin  fertility  of  the  soil  is 
exhausted.  Land  under  such  shifting  culti- 
vation is  known  as  Ponalkadu.  Near  the 
village  some  more  lands  have  come  under 
permanent  cultivation  and  these  are  called 
Olavakadu,  the  natural  development  of 
shifting  cultivation. 

The  first  point  raised  before  us  by  the 
learned  Vakil  for  the  appellants  is  that  the 
suit  jaghir  is  an  estate  within  the  meaning 
of  the  Madras  Estates  Land  Act  of  1908. 
The  District  Munsif  held  that  it  is  not  an 
estate.  On  appeal  the  District  Judge 
thought  that  it  was  unnecessary  to  give  any 
definite  finding  on  this  point  and  he  dis- 
cusses the  question  of  occupancy  right  on 
both  alternative  positions,  i.  e.,  whether  the 
Estates  Land  Act  applies  or  does  not  apply. 
An  estate  is  defined  in  s.  3,  cl.  (2)  of  the 
Estates  Land  Act.  As  the  suit  jaghir  is 
not  a  permanently  settled  estate  or  a  tem- 
porarily settled  'zemindary,  (or  a  sub-divi- 
sion of  such  an  estate  ui  zemindary)  it  does 
not  fall  under  els.  (a)  and  (6).  As  it  is  not  an 
unsettled  jaghir,  it  does  not  fall  under  cl. 
(c).  Therefore,  it  does  not  fall  also  under  cl. 
(e).  The  only  possible  clause  under  which 
the  suit  estate  could  fall  is  cL  (d).  Clause 
(d)  runs  thus; — 

"Any  village  of  which  the  land  revenue 
alone  has  been  granted  in  inam  to  a  person 
not  owaitQt'the  kudivaram  thereof,  provided 
that  the  $jrant  has  been  made,  confirm- 
ed or  recognised  by  the  British  Govern- 
ment, or  any  separated  part  of  such  village/1 

Here  there  is  no  grant  of  a  single  village 
but  an  estate  consisting  of  several  villages. 
The  South  Arcot  Gazetteer  says  at  page  30 
that  the  Ariya  Goundari  Estate  consists  of 
fourteen  villages.  Assuming  that  the  fact 
that  the  grant  was  of  a  number  of  villages  and 
not  of  a  single  village  does  not  stand  in  the 
way  of  their  wtiefyiag  tfce  definition  in  cl,  (d). 


we  have  next  to  see  whether  the  other 
parts  of  the  clause  are  satisfied.  The  learn- 
ed Vakil  for  the  appellants  points  out  that 
the  suit  estate  is  a  jaghir.  It  has  been  so 
described  in  the  Schedule  to  the  Madras 
Impartible  Estates  Act  both  under  the 
heading  of  S;>uth  Arcot  and  the  heading  of 
Salem.  He  refers  to  the  decision  in  Raghoji- 
rao  Saheb  v.  Lakshmanrao  Saheb  (1),  where 
their  Lordships  of  the  Privy  Council  say: 

"The  lands  had  been  formerly  jaghir.  But 
this  term  implied  no  grant  of  the  soil,  but 
a  personal  grant  only  of  the  revenue  to  the 
grantee.  The  marathi  equivalent  to  the  term 
jaghir,  namely,  saranjam,  came  in  course  of 
time  to  be  applied  to  the  lands  " 

He  also  refers  to  Baden  Powell  and 
Logan's  Salem  Manual  (II).  The  suit  estate 
was  enfranchised  in  1866.  (See  Exs.  C  and 
D).  Exhibit  D  is  headed  "account  relating  to 
the  villages  which  have  been  assigned  and 
are  being  enjoyed  by  Polighar,  Kamappa 
Ariya  Goundan  "  Column  3  refers  to  the 
14  villages  which  are  enjoyed  in  the  hilly 
tracts.  In  col.  12  we  have  got  "There  are 
no  documents  of  title.11  There  is  a  foot- 
note as  follows: — 

"As  the  said  14  villages  are  situate  on  the 
hills,  they  have  never  been  surveyed  and  no 
thiva  has  been  fixed11.  Exhibit  C  is  the  inam 
register  and  there  is  a  foot-note  in  it  similar 
to  that  in  Ex.  D  column  3  is  headed  "The 
annual  income  derived  from  the  14  villages 
in  the  hilly  tracts  of  Kallakurichi  Taluk". 
In  col.  1  the  plough  tax  and  the  poll  tax 
are  mentioned.  Jn  column  22  the  entry  is: 
"In  the  absence  of  any  accounts  showing  the 
area  of  the  villagea^jSfd  their  assessment, 
the  only  course  'IftJVfo  adopt  the  revenue 
raised  by  the  Polighar  as  the  assessment  on 
the  villages." 

These  documents,  Exs.  C  and  D,  do  not 
refer  to  the  suit  estate  as  a  jaghir,  nor  is 
there  any  trace  in  them  of  the  fact  that  only 
the  revenue  of  the  hills  was  granted  as  inam 
to  the  original  grantee.  As  theDistrict  Judge 
observes  much  reliance  cannot  be  placed 
on  a  name  especially  where  the  earlier 
history  of  the  jaghir  is  involved  in  consider- 
able obscurity.  The  District  Muneif  thought 
that  the  original  grafctee  was  a  bandit  or 
a  robber  chief;  but  as, already  observed 
we  have  no  information*  a$  to  the  origin 
of  the  estate  except  that  Ariya  Goundan 
held  no  kavali  under  the  Government,  but 

(1)  16Ind  Gas.  239;  36- B.  639  at  p.  658;  16  C.  W. 
N.  1058;  23  M.  L.  J.  383;  12  M.  L.  T.  472,  (1912)  M, 
W,  N.  1140;  14  Bom.  L,  R.  1226;  17  0.  L.  J,  17;  39  L 
A*  802  (P.  0,), 


THANAPPA  OflBTW  0,  BSD*  KHAN  SAHIB. 


[921.0.1026] 

he  paid  a  small  nazzar  or  peshkash  of 
Ra.  37-5-2  which  was  probably  im  posed  in 
consequence  of  his  holding  no  office.  On 
these  facts  I  am  unable  to  distinguish  this 
case  from  the  case  in  Suryanarayana  vt 
Patana  (2),  and  the  entries  in  Ess  C  and 
D  of  this  case  from  Gate's  Inain  Register  of 
that  case  (see  page  1020)*.  If  so  all  the  14 
villages  must  be  regarded  as  granted  to 
the  original  grantee  and  cl.  (d)  becomes  in- 
applicable. But  assuming  for  a  moment 
that  the  grant  was  of  the  revenue  and  not 
the  villages,  the  next  question  is  whether 
the  grant  was  to  a  person  ''not  owning  the 
kudivaram  thereof".  The  burden  of  prov- 
ing this  is  upon  those  who  contend  that  the 
Estates  Laud  Act  is  applicable.  [Vide 
Nainapillai  Marakayar  v.  Ramanathan 
ChMiar(3)\.  There  is  no  evidence  in  the 
case,  nor  can  there  be  having  regard  to  the 
history  of  the  estate  and  the  only  informa- 
tion we  have  about  the  suit  estate.  In  these 
circumstances  it  is  difficult  to  hold  that  it  has 
been  proved  that  the  suit  estate  is  an  estate 
to  which  the  Estates  Laud  Act  applies. 

The  learned  District  Judge  considered 
the  question  whether  the  defendants  paid 
any  rent  to  the  jaghirdar  and  whether  the 
relationship  of  landlord  and  tenant  existed 
between  the  jaghirdar  and  the  cultivating 
defendants;  and  he  found  that  so  far  as 
Olavakadu  lands  were  concerned  there  can 
be  no  occupancy  right  in  them.  As  to  Ponal- 
kadu  lands  in  connection  with  this  point  the 
defendants  relied  on  two  former  judgments 
of  this  Court,  Ex.  XVI  and  XVII I.  Exhibit 
XVIII  was  the  only  judgment  considered  by 
the  District  Judge.  The  District  Judge  after 
quoting  the  judgment  of  the  High  Court 
saya,  "The  actual  circumstances  of  those 

suits  are  not  disclosed In  any  case  it  has 

no  application  here,  where  the  poll-tax  is 
not  the  equivalent  of  rent.1'  Exhibit  XVIII 
was  a  j  udgment  in  a  batch  of  second  appeals 
which  arose  in  Salem  District  where  a 
number  of  suits  were  filed  for  enforcing  ac- 
ceptance of  pattas,  the  plaintiff  being  a 
mortgagee  from  Annainalai  Qoundan,  the 
owner  of  Chinna  Kalrayan  Nad  which  is 

(2)  48  lad.  Gas.  089,  41  M   1012,  45  I.  A  209,  25  M 
L.  T.  30;    (1918)  M.    W  N,  859;  23    O.  W,    N  273,9 
L  W.  12i>;  29  a  L.  J.  153,  1  U  P.  L   R.  (T.  0)11, 
36  M  L.  J.  535,  21  Bom.  L,  K    517;  (1919)  M.  W.  N. 
463  (P.  0 ). 

(3)  82  lad.  Gas  226;  47  M,  337;    A.  I,  R.  1921  P.  0 
65;  19  L   W.  259;  22  A.  L  J  130,  34  M,  L.  T  10,  (1924) 
M.  W.  M.    293,  46  M.  L  J.    546,    10  O.  &   A.  L    R 
484;  28  0.  W.  N.  803;  51 1.  A.  83;  L.  R.  5  A.  (P.  0.)  33 
(P.  P.). 

*Pft**  Pi  U 


75$ 

also  one  of  the  estates  mentioned  in  the 
schedule  to  the  Madras  Impartible  Estates 
Act  under  the  heading  of  Salem.  On  a 
perusal  of  the  South  Arcot  Gazetteer  page  3, 
we  find  that  the  nature  of  the  jaghir  in 
South  Arcot  or  Salem  is  practically  the 
same.  It  is  observed  that  "a  great  part  of 
the  Kalrayans  is  indeed  situated  within  the 
Salem  District  and  the  boundary  line  be- 
tween the'latter  and  South  Arcot  passesalong 
the  top'of  them".  Then  the  author  gives  the 
tradition  of  the  five  brothers  dividing  the 
hills  among  themselves,  then  he  observes: 
"  The  south  and  south- western  parts 
whish  happen  to  be  the  highest  of  the 
whole,  were  taken  by  Peria  Kalvi  Rayan  and 
so  were  called  after  him  the  Periya  Kalvi 
Rayan  or  Periya  Kalrayan  Hills,  the  lower 
slopes  to  the  west  of  Salem,  which  chance 
to  be  the  less  elevated  part,  similarly  be- 
came the  Chinna  Kalrayan  Hills  ...  . 
Ariya  Goundan  becoming  the  name  of  the 
northern  part  of  the  range." 

Thus  there  is  no  doubt  that  the  Chinna 
Kalrayan  Hills  and  the  suit  jag/iir  were 
similar  in  tenure,  and  Ex.  XV11I  which 
related  to  the  former  shows  that  the  High 
Court  regarded  the  relationship  between 
the  cultivators  and  the  jaghirdar  as  one  of 
tenant  and  landlord.  It  is  true  that,  Ex. 
XVI II  was  passed  in  second  appeal  by  a 
single  Judge  of  this  Court  under  0.  XLI, 
r.  1.  Benson,  J  ,  observes: 

"I  think  the  District  Judge  is  right.  The 
payments  are  evidently  made  as  rent  for 
the  occupation  of  land  calculated  at  so 
much  per  head,  instead  of  so  much  per 
acre,  which  is  the  ordinary  way  in  most 
cases.  The  second  appeal  is  dismissed". 
That  this  is  the  true  view  of  the  revenue 
derived  by  the  jaghirdar  is  also  seen  from 
the  inam  account,  Ex.  D  and  Register,  Ex 
0  already  referred  to.  In  col.  3  of  Ex.  D 
we  have.  *  The  tirva  which  is  collected  in 
respect  of  the  punja  land  for  53  ploughs 
at  Rs.  1-4  0  per  plough  is  Rs.66~4-0'\  Then 
the  poll-tax  is  referred  to  per  head 
and  both  the  items  are  totalled  asRs.  209  4*0 
and  referred  to  as  the  revenue.  Though 
the  revenue  is  described  as  poll-tax,  it 
must  be  regarded  as  rent,  this  method  of 
assessment  being  found  convenient  by  the 
cultivators  and  the  jaghirdar.  Exhibit 
XVI  was  not  referred  to  by  the  District 
Judge  but  was  referred  to  by  the  District 
Munsif.  It  is  the  judgment  in  Seeend 
Appeals  No*,  2033  of  1910  and  260 


156 


THAN  APPA  OHfiTTY  V.  BStftf  KHAN  SAHIB. 


1.  0. 


26 1  of  1911.  The  suit  was  by  the  assignee 
of  the  Poligar  for  the  enforcement  of  patta 
with  certain  restrictions  relating  to  the  cutt- 
ing of  trees  and  related  also  to  the  Ohinna 
Kalrayan  Hills.  This  j  udgment  also  leads 
to  the  same  conclusion  as  Ex.  XVIII.  In 
the  face  of  Exs.  XVI  and  XVIII  itis  difficult 
to  say  that  there  is  no  relationship  of  land- 
lord and  tenant  between  the  Poligar  and 
the  defendants  and  the  District  Judge  is 
wrong  in  saying  that  uthe  ruling  has  no 
application  where  the  poll  tax  is  not  the 
equivalent  of  rent,"  He  has  started  with 
the  assumption  that  the  poll  tax  is  not  the 
equivalent  of  rent,  and  having  said  this, 
was  of  opinion  that  Ex.  XVIII  has  no  ap- 
plication to  the  present  case;  but  Ex.  XVIII 
shows  that  the  poll-tax  should  be  regarded 
as  the  equivalent  of  rent.  Thus  his  judg- 
ment is  vitiated  by  his  misconstruction  of 
Ex.  XVIII. 

We,  therefore,  start  with  the  footing  that 
the  defendants  are  the  tenants  of  the  yaghir- 
dar  and  we  have  to  consider  the  question  of 
right  to  the  minor  produce  from  this  foot- 
ing. The  lower  Appellate  Court  found  on 
a  discussion  of  the  oral  and  documentary 
evidence  that  the  Poligar  is  entitled  to  all 
the  minor  produce  in  the  Palayam.  In  the 
form  in  which  the  Courts  below  discussed 
the  question  no  doubt  it  is  a  question  of 
fact;  and  if  we  are  not  satisfied  with  the 
findings  of  the  lower  Appellate  Court  we 
can  only  call  for  fresh  findings.  But  as  C 
have  already  pointed  out  the  findings  are 
vitiated  by  the  conclusion  of  the  Courts 
below  that  there  is  no  relationship  of  land- 
lord and  tenant  between  the  Poligar  and 
the  cultivators.  I  have  come  to  the  con- 
clusion that  there  is  such  a  relationship  and 
starting  from  that  footing,  if  there  is  any 
question  of  fact  to  be  found  we  have  to 
call  for  a  finding.  But  it  seems  to  me  that 
what  remains  is  a  pure  question  of  law. 
Prima  facie  a  tenant,  whatever  his  status  as 
a  tenant  may  be,  i.  e,,  whether  he  is  an  oc- 
cupancy tenant  or  a  tenant  from  year  to 
year  or  a  tenant-at-will,  is  entitled  to  the 
produce  of  the  land,  included  in  the  ten- 
ancy 00  long  as  the  tenancy  subsists.  This 
is  too  elementary  to  need  discussion.  It  is 
difficult  to  conceive  what  a  tenancy  is  for, 
if  the  tenant  is  not  to  be  entitled  to  the 
produce  of  the  land.  We  are  not  concerned 
here  with  the  right  to  cut  trees,  as  to  which 
the  question  maybe  a  little  more  difficult. 
The  suit  before  us  relates  only  to  the  minor 
produce,  vi?*,  Murabolams,  Muradu,  Pungau 


seed,  Nux  Vomica,  Takarai  seed,  Seeran 
seed,  Poochan  seed,  Konnai  bark,  Honey, 
Huney  Wax,  Sombai  bark,  Kapilipodi,  Sural 
bark.  In  the  case  of  such  produce  which 
can  be  gathered  from  land,  prima  facie  the 
tenant  is  entitled  to  it.  Is  there  any  reason 
why  in  this  particular  case  the  cultivating 
tenants  are  not  entitled  to  it?  If  any  ques- 
tion of  usage  or  custom  can  arise  in  this 
case,  it  is  the  plaintiff  who  claims  to  be  the 
lessee  from  the  Poligar  that  has  to  show 
such  usage  or  custom  by  which  he  and  not 
the  cultivating  tenants  are  entitled  to  the 
minor  produce  of  the  land  actually  under 
the  tenant.  The  District  Munsif  found  that 
under  the  custom  prevailing  in  the  jaghir 
the  first  defendant  is  entitled  to  the  minor 
hill  produce.  The  District  Judge  also  gave 
a  similar  finding.  The  fact,  that  before 
cultivating  the  Ponalkadu  land  formal  per- 
mission of  the  jaghirdar  is  taken  proves 
nothing,  nor  is  there  any  question  of  ac- 
quiring prescriptive  rights.  Both  the 
District  Munsif  and  the  District  Judge  rely 
on  certain  leases  of  certain  minor  produce. 
The  District  Munsif  relied  upon  Exs.  P  and 
8  which  are  dated  1866  and  1872  for  the 
purpose  of  making  out  a  usage  extending 
over  a  considerable  period  of  time.  But 
these  documents,  Exs.  P  and  8,  are  so  per- 
fectly general  that  it  is  impossible  to  infer 
any  right  to  minor  produce  from  them.  Ex- 
hibit P  is  a  lease  for  cutting  teak  wood,  spokes 
for  wheels  and  for  felling  Vengai  and  other 
trees  produced  within  certain  boundaries.  It 
makes  no  reference  to  the  minor  produce 
at  ail.  {Similarly  Ex.  8  refers  to  all  kinds 
of  trees  inclusive  of  those  of  Qalnut,  Sural, 
save  those  of  jack  fruit  and  tamarind  as 
grown  on  "Pendakarainadu".  Here  again 
there  is  no  specific  reference  to  the  minor 
produce.  It  is  very  difficult  to  see  how 
these  documents  militate  against  the  ten- 
ants' right  to  the  minor  produce.  If  these 
two  are  excluded,  the  documents  relating 
to  minor  produce  begin  from  Ex.  Y  dated 
1890.  But  it  is  impossible  to  make  out  from 
the  documents  beginning  from  1890  and 
ending  with  1904  that  an  ancient,  valid  and 
binding  usage  is  proved.  We  have  got 
only  four  documents,  Exs.  Y,  Yl  and  M  and 
N.  Even  these  documents  are  general  as  to 
the  area  of  the  land  covered  by  them.  For 
instance  Ex.  Y  refers  to  the  produce  in  cer- 
tain villages  in  Irugarainadu  of  Jagirmalai 
in  Puduralailka.  Particulars  of  villages 
are  given;  about  21  villages  are  enumerated, 
But  it  is  possible  that  the  minor  producq 


[92  I  0.  1926]  BAM  PIBR  8INOH 

covered  by  the  lease  related  only  to  Alankadu 
i.  e,  the  hills  and  the  jungle  outside  the 
cultivated  land  (Olavakadu  and  Ponalkadu). 
Alankadu  is  so  much  more  in    extent  than 
the  cultivated  land  that  it  is  scarcely  worth- 
while to  specially  mention  Olavakadu  and 
Ponalkadu  for  the  purpose  of  exclusion.  At 
any  rate  a  document  like  this  does  not  bind 
the  cultivating  tenant,  nor  can  it  prove  who 
took  the  produce  of  the  lands  under  an  in* 
dividual  tenant.    Similar  remarks  applv  to 
Y(l),  M  and  N.    The  oral  evidence  is  useless 
as  it  was  adduced  to  prove  enjoyment  in 
accordance  with  the    documents.    I  have, 
therefore,  come  to  the  conclusion  that  it  is 
impossible  to  find  in  the  evidence  any  usage 
by  which  the  ordinary  presumption  of  law 
entitling  the  tenant  to  enjoy  the  produce  of 
his  own  land  was  displaced  and  the  Poligar 
first  defendant  became  entitled  to  collect  all 
the  minor  produce  even  in  lands  under  the 
tenants.  Of  coursa  when  I  say  that  the  tenants 
are  actually  entitled  to  minor  produce  on 
Ponalkadu,  I  refer  to  land  which  was  actually 
under     the     cultivation  of   a  tenant  and 
therefore,  which  has  not  been  abandoned, 
The  moment  a  L'onalkadu  land  is  abandon- 
ed, it  is  absorbed  into  the  general  Alankadu 

For  all  the  above  reasons,  the  plaintiff  is 
not  entitled  to  the  declaration  of  his  rights 
to  the  minor  produce  of  Olavakadu  lands 
and  Ponalkadu  lands  during  the  time  they 
retain  that  character  The  plaintiff  has 
given  up  his  right  to  Natham  He  is  entitl- 
ed only  to  a  declaration  in  respect  of  the 
produce  of  Alankadu. 

The  decree  in  favour  of  the  plaintiff  will, 
therefore,  be  modified  accordingly.  The 
plaintiff  will  bear  the  costs  of  the  appel- 
lants here  and  in  the  lower  Appellate  Coint. 
In  the  first  Court  each  party  will  bear  their 
own  costs  as  they  put  forward  extravagant 
claims  which  they  afterwards  had  to  modify. 

Phillips,  J.— I  agree  with  the  order 
proposed  by  my  learned  brother  but  I  pre- 
fer to  reserve  my  opinion  on  the  question 
whether  the  suit  jaghir  is  or  is  not  an  estate 
within  the  meaning  of  the  Estates  Land 
Act,  as  its  determination  is  not  necessaiv 
for  the  decision  of  this  appeal  which  ia 
based  on  the  ordinary  law  of  landlord  and 
tenant. 

v.  N,  v,  Decree  modified. 


SHEO  SARAN  SIN«ff.  75  7 

OUDH  CHIEF  COURT. 

FIRST  CIVIL  APPEAL  No.  12  OF  1924. 

December  10,  1925. 
Present:— -Mr.  Justice  Ashworth  and 

Mr  Justice  Raza, 

RAM  PHEK  SINGH,  MINOR,  AND  ANOTHER 
— PLAINTIFFS— APPELLANTS 

versus 

SHEO  SARAN  SINGH  AND  OTHERS- 
DEFENDANTS— RESPONDENTS. 

Pre-emption—Vendor,  title  of,  assertion  of— Vendor 
not  in  possession  at  time  of  sale- -Sale,  what  amounts 
to—Conveyance  in  consideration  of  price  and  promise 
to  do  certain  things,  whether  sale— Transfer  of  Pro- 
perty Act  (IV  of  18$S),  s  M 

In  order  to  succeed  in  a  suit  for  pre-emption,  the 
pre-emptor  must  assert  title  in  the  vendor,  and  the 
fact  that  there  was  a  conveyance  by  the  vendor  to  the 
vendee  which  amounted  to  a  sale  The  vendee  qua 
vendee  and  as  against  the  pie-emptor  is  estopped 
from  denvmg  the  title  of  his  vendor,  and  so,  for  the 
purposes  of  a  pie-einption  suit,  the  title  must  be 
assumed  to  exist  in  the  vendoi,  if  it  19  alleged  by 
the  pre-emptor  to  exist  [p  758,  cols.  1  &  2  ] 

The  deed  of  conveyance,  however,  muat  clearly 
profess  to  seli  the  property,  and  not  merely  be  a  pro- 
mise to  sell  tho  property  in  the  future  It  makes  no 
difference  whether  the  vendor  was  out  of  possession 
or  in  p^sqession  at  the  4ate  of  the  sale,  nor  does  it 
make  any  difference  whether  there  was  a  small  or 
largo  chance  of  his  getting  his  title  acknowledged 
m  Court  Tp  758,  col  2] 

In  order,  howevar,  that  a  transaction  should  amount 
to  a  sale  it  is  necessary  that  there  should  be  a  price 
paid  or  promised  or  pirt  paid  and  pait  promised, 
which  maais  that  the  pnca  mut>t  be  stated  in  or 
ascertainable  at  the  time  of  the  deed  [ibid] 

A  conveyain^e  in  consideration  of  a  price  an 
a  promise   to  do  certain  things,  the    doing  of 
will  cost  an  indefinite  su»n  of  money,  is  not 
[p  759,  col   1] 

Appeal  asrainst  a  decree  of 
ordinate  Judge,  Sulfcanpur,  date 
October  1923 

Mr  II  Husam,  for  the  AppeU 

Mr   A.  P   Sei,  for  the  Respq" 

JUDGMENT.— This  firrtj 
out  of  a  s  lit  brought  by  the 
pellants  for  pre-emption  on  the  basis  of  a 
sale-deed  dated  18th  January  19*2,  Ex.  1, 
executed  by  Musammat  Jagwanta  Kuar, 
widow  of  Parag  Singh,  in  fi^four  of  defend- 
ants respondents  Nos.  2  to  6.  Th^s  sale- 
deed  sete  forth  that  the,vead6|,wa%£ntitled 
to  the  property  of  her  husbaB$^arag  Singh, 
but  that  two  persons,  Kal&a  *Sjiagh  and 
Mahadeo  Singh,  had  fraud ul$»y%btained 
from  the  widow  an  agr§e men ff |lo wing  the 
greater  part  of  her  husband's  ^tate  to  be 
entered  in  their  uamdS  in  the  village  papers, 
only  a  small  portion'b^ing  entered  in  the 
widow's  name.  ^|  go$a  on  to  sa£  that  she 
wanted  to  get  thi*[  agreement  set  aside  but 
had  not  the  funds.  She*,  therefore,  sold 


the 


'sale 

Sub- 
22nd 


nts. 

al  arises 
iintiflfs-ap- 


^  ?58  RAM  PBBR  SWQH  V,  SHEO  61RAN  SINGH, 

nine-tenths  of  her  interest  in  the  property  could  be  no  sale 
of  hey  husband  to  the  defendants- vendees, 
who  were  to  bear  all  the  expenses  of  the 
litigation  required  to  set  aside  the  agree- 
ment. The  lower  Court  held  that  this  did 
not  amount  to  a  sale  of  interest  in  the  pro- 
perty, but  merely  to  a  sale  of  her  chances 
of  success  in  a  law  suit,  and  on  the  authori- 
ty of  Privy  Council  cases,  Ranee  Bhoboscn- 
duree  Dossee  v.  Issur  Chunder  Dutt  (1)  and 
Abdul  Wahid  Khan  v.  Shaluka  Bibi  (2),  held 
that  in  such  circumstances,  the  sale- deed 
gave  the  plaintiffs-appellants  no  right  of 
pre-emption.  It  may  be  mentioned  that  the 
plaintiff-appellant,  Bhagwan  Bux  Singh, 
is  a  son  Mahadeo  Singh,  one  of  the  persons 
in  whose  favour  the  agreement  mentioned 
above  had  been  made  by  the  widow. 

The  appellants  rely  upon  two  decisions 
of  a  Single  Judge  [Mr.  H.  R.  Daniels  of 
the  Judicial  Commissioner's  Court,  Balwant 
Singh  v.  Lallu  Ram  (3)  and  Gajadhar  Prasad 
v.  Manra  Khan  (4)j.  In  these  two  cases  it 
was  held  that  a  right  of  pre-emption  may 
arise  in  cases  in  which  the  vendor  is  out 
of  possession,  and  litigation  is  necessary  to 
recover  possession  of  the  property,  provided 
that  the  sale  is  a  genuine  sale  of  the  pro- 
perty and  not  a  mere  sale  of  a  share  in  a  law 
_suit.  The  respondents,  on  the  other  hand, 
rely  upon  the  case  Mirza  Mohammad  Abbas 
Ali  Khan  Bahadur  v.  A.  Quieros  (5)>  where 
it  was  held  that  pre-emption  would  not 
arise  where  the  property  sold  was  not  in 
the  possession  of  the  vendor  at  the  time, 

and  the  vendor  had  only  a  doubtful  light 

to  recover  it.    This  case  also  was  based  on 

the  contingent  nature  of  the  purchase  price 

paid.    It    purported    to  be  based  on   the 

Privy  Council  case  of  Abdul  Wahid  Khan 

v.  Shaluka  Bibi  (2). 

In  order  to  succeed  in  a  case  of  pre-emp- 
tion, there  can  be  no  doubt  that    the  pre- 

emptor  must  assert  title  in  the  vendor,  and 

the  fact  that  there  was  a  conveyance  by  the 

vendor  to  the  vendee  which  amounted  to  a 

sale  (or  a  foreclosure  on  a  mortgage).    In  the 

Privy  Council  case  the  pre-emptor   denied 

at  the  outset  the  title  of  the  vendor,   and 

consequently  their  Lordships  held  that  there 

(1)  18  W.  R.  140;  11  B.  L,  R.  36;  3  Sar   P.  C.  J.  136 
(P  0). 

(2)  21  C.  4P6;  21  I.  A.   26;  6   Sar.  P.  0.  J.  399; 
Rafique  &   Jackson's  P.  C.  Ko,  134,  10   Jnd.   Dec 
(N.  s.)  961  (P.  0.). 

(3)  49  Ind,  Caa.  462;  6  O.  L.  J,  29. 

(4)  66  Jnd.  Cas.  684;  8  0.  L.  J.  403;  4  XT.  P.  L.  R. 
(0 )  41;  A.  I.  R.  1922  Oudh  156, 

(5)  9  0,  0,  86, 


[92  L  0. 1926J 

on   the  plaintifi'fl  owA 

admission,  because  according  to  the  plaintiff- 
pre-emptor  sown  case,  the  vendor  was  not 
selling  a  right  in  the  property,  but  merely 
a  share  in  a  law  suit.    The  decision  of  their 
Lordships  of  the  Privy  Council  must   not 
be  construed,  as  it  appears  to  have  been 
construed  by  one  of  the  Judges  in  the  case, 
Mirza  Mohammad  Abbas  Ali  Khan  Bahadur 
v,  A.  Quieros  (5),  as  meaning  that,  when- 
ever the  title  of  the  vendor  was  in  doubt,  the 
sale  should  be  considered  a  sale  of  a  share 
in  a  law  suit   and  not  a  sale  of  property. 
Again  the  deed  of  conveyance,  must  clearly 
profess  to  sell  the  property,  and  not  merely 
be  a  promise  to  sell  the  property   in  the 
future.  [See  Ranee  Bhobosoonduree  Dossee  v. 
Issur  Chunder  Dutt  (i)].  We  agree  with  Mr, 
Daniels  in'Gajadhar  Prasad  v.  Manra  Khan 
(4),  that  it  makes  no    difference    whether 
the  vendor  was  out  of  possession  or  in  pos- 
session, nor  does  it  appear  to  us  to  make 
any  difference  whether  there  was  a  small  or 
large  chance  of  his  getting  his  title  acknow- 
ledged in  Court     The  pre-emptor  is  bound 
to  assert  the  title  of  the  vendee  in  order  to 
claim  pre-emption.    The  vendee  qua  vendee  • 
and  as  against    the  pre-emptor  is  estopped 
from  denying  the  title  of  his  own  vendor, 
and  so,  for  the  purposes  of  the  pre-emption 
suit,    the   title   must  be  assumed  to    exist 
if  alleged  by  the  pre  emptor  to  exist.  But 
it  is  necessary  in  order  for  a  transaction  to 
amount  to  a  sale  that  there  should  be,  as 
stated   in  s.  54  of  the  Transfer  of  Property 
Act,  IV  of  1882,  a  price  paid  or  promised  or 
part  paid  and  part  promised,  which    means 
that  the  price  must  be  stated  or  ascertain- 
able  at  the  time  of  the   deed.    Paragraph  7 
of  the  sale-deed  on  which  the  claim  to  pre- 
emption is  based  is  as  follows  ; — 

"  Consideration  money  of  this  deed  is  the 
sum  which  the  vendees  shall  have  to  spend 
in  conducting  this  suit  from  the  beginning 
up  to  the  end  as  well  as  their  labour  and 
loss  (in  conducting  their  suit).  Amount 
of  expenses  in  the  suit  is  at  present  estin  at- 
ed  to  be  Rs.  2,500  but  it  must  remain  clear, 
that  if  more  than  this  amount  is  required 
for  the  expenses  the  vendees  shall  have  to 
meet  that  sum  and  if  the  expenses  are  Jess 
than  this  amount  then  I  shall  not  be  entitl- 
ed to  get  the  surplus  from  the  vendees.  For 
the  purpose  of  stamp  the  entire  considera- 
tion money  of  tLis  deed  is  fixed  to  be 
Rs.  10,000  lalf  of  which  amount  to  Rs.  5,000, 
this  includes  labour  and  trouble  on  the 
part  of  the  vendeee,"  This  does  not  satisfy 


.  0.1926] 


NOOR  DItf  V.  8tJLAK*AN  UAL. 


750 


the  condition  just  stated.  The  conveyance 
is  not  a  sale-deed.  At  the  best  it  is  a  con- 
veyance in  consideration  of  a  price  and 
also  a  promise  to  do  certain  things,  the 
doing  on  which  will  cost  an  indefinite  sum 
of  money.  It  is  unnecessary  to  consider 
whether  such  a  deed  of  conveyance  ia  one 
that  can  be  held  in  India  to  operate  as  a 
transfer,  or  merely  as  evidence  of  a  promise 
to  transfer.  It  is  not  a  sale-deed,  and  does 
not  give  rise  to  a  right  of  pre  emption. 

On  these  grounds,  we  hold  that  the  lower 
Court  rightly  dismissed  the  suit,  and  we 
dismiss  this  appeal  with  costs. 

1.  K.  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

MISCBLLANKOOS  APPEAL  No.  1566  OP  1924, 

January  8,  1925 

Present ;— Mr.  Justice  Campbell 
NOOR  DIN— PLAINTIFF— APPELLANT 

versus 

SULAKHAN  MAL— DEFENDANT— 
RESPONDENT 

Civil  Procedure  Code  (Act  V  of  1003),  s  60  (c)— 
House  of  agriculturist  in  city — Exemption  from  attach- 
ment— Occupation,  meaning  nf 

A  house  of  an  agnculturist  in  a  city  in  which  he 
spsuds  his  nights  and  to  which  lie  brings  his  cattle 
every  night  froro  the  lands  cultivated  by  him,  is 
exempt  from  attachment,  notwithstanding  the  fact 
that  he  owns  two  other  houses  on  hi 3  lands  expressly 
meant  to  ba  used  for  agricultural  purposes 

The  woids  "occupied  by"  in  s  60  (c),  C  P  0  ,  mean 
"lived  in  by"  or  "used  for  agricultural  purposes  bv  " 

Radhakisan  Hakumji  v  Balwant  Ramjt,  7  B  5.10,  8 
InH  Jur.  146,  4  Ind  Dec  (NT.  s  i  357  and  Jivan  Bhaga 
v.  Him  Bhaiji,  12  B,  363,  6  Ind  Dec  (N  s )  726,  distin- 
guished 

Attar  Singh  v  Bhagwan  Das,  2  Ind  Gas  983,  65 
P.  R  1909;  104  P  W  R  1909,  141  P  L  R  1909, 
referred  to. 

Appeal  from  a  decree  of  the  Senior  Sub- 
Judge,  Lahore,  dated  the  28th  May  1921 

Mr.  Nihal  Chand  Me/mz,  for  the  Appel- 
lant, 

Lala  Tirath  Ram,  for  the  Respondent. 

JUDGMENT. — This  is  a  case  where  a 
judgment-debtor  NTur  Din  objected  to  the 
attachment  in  execution  of  a  decree  of  his 
house  in  Lahore  Oity  on  the  ground  that  it 
was  exempt  under  s.  60  (c)  of  the  0.  P.  0. 

The  objector  proved  that  agriculture  was 
his  chief  occupation,  that  he  cultivated  land 
a  mile  or  1 J  miles  from  the  house  in  question 
and  that  every  night  he  took  his  cattle 


home  to  this  house  and  spent  the  night  in 
it.  It  was,  however,  elicited  in  evidence 
that  the  objector  owns  two  other  houses  in 
the  vicinity  of  his  agricultural  land,  but  it 
was  stated  that  one  of  them  was  in  the 
possession  of  mortgagees. 

The  lower  Court  has  rejected  the  petition 
on  the  grounds  that  the  objector  was  bound 
to  prove  that  the  city  house  was  occupied 
by  him  bona  fide  for  the  purpose  of  agri- 
culture and  that  the  bare  fact  that  after 
doing  his  day's  work  in  the  villages  he 
brings  his  cattle  with  him  to  the  city  house 
because  the  village  is  becheragh  is  not  suffi- 
cient to  show  that  the  city  house  is  occupied 
by  him  as  an  agriculturist,  especially  when 
he  has  got  houses  on  his  lands  expressly 
meant  to  be  occupied  and  used  for  agricul- 
tural purposes. 

There  is  nothing  in  s.  60  to  justify  such 
an  interpretation  of  its  terms,  and  of  the 
ruling  quoted  by  the  learned  Senior  Sub- 
ordinate Judge  in  support  of  his  finding 
Radhakisan  Hakumji  v.  Balwant  Ramji 
(1)  and  Jivan  Bhaga  v  Hira  Bhaiji  (2)  are 
not  in  point  at  all,  and  Attar  Singh  v. 
Bhagwart  Das  (3)  is  in  favour  of  8.  60  (c) 
being  taken  to  mean  what  it  says 

Mr.  Justice  Johnstone  laid  down  that  the 
words  "occupied  by"  mean  "lived  in  by11  or 
"used  for  agricultural  purposes  by." 

The  present  house  is  the  permanent 
residence  of  the  judgment-debtor  who  is 
an  agriculturist  and,  therefore,  even  if  the 
words  of  s.  60  (c)  should  be  read  as  meaning 
belonging  to  an  agriculturist  and  occupied 
by  him  as  such,  the  house  in  question  un- 
doubtedly is  occupied  by  an  agriculturist 
as  such,  for  agriculturists  like  other  people 
must  have  some  place  to  lay  their  heads  at 
night,  and  if  an  agriculturist  has  a  house 
in  a  city  a  mile  from  his  land  there  is  no 
reason  on  earth  why  he  should  not  use  it  as 
his  ordinary  residence. 

I  accept  the  appeal  and  order  that  the 
house  be  exempted  from  attachment.  The 
appellant  will  have  his  costs  in  both  Courts. 

K  L.  Appeal  accepted. 

(1)  7  B  530,  8  Ind  Jur.  116;  4  Ind.  Dec.  (N.  s)  357. 

W  12  B.  363,  6  Ind.  Dec.  tN,  s )  726. 

(3)  2  lad  Gas  983,  65  P.  R.  1909,  104  P.  W.  K.  1909; 
1UP.L  R.  1909. 


760, 


FIRM  OP  R.  B..BAUB1LAL-ABIRCHAND  ».  OHTJUM  MABBDB  KHAN.,      ,  [92  I.  .0.  }928j  - 

'      '  <  1  '       v  ,       -     1  jt        »  >      A      ' ,    v          '   « 


PRIVY    COUNCIL* 

APPEAL  FROM  THE  COORT  o£  TMB  RBSIDBNT, 
HYDERABAD,  DECCAN. 
9ctober20,  19*5. 
Present:— Viscount  Eitxlay,  Lord  Carson 

and   Lord  Blanesburgh. 

FIRM  OF  Ra>i  'Bahadur  BANSILAL- 

ABIRCHAND^  -PLAWTIFF—  APPELLANT 

versus 
GHULAM  MAHBUB  KHAN  AND  ANOTHER 

—DEFENDANTS— RESPONDENTS. 
Civil  Procedure  Code  (Act  V  of  1908},  s.  10  (c)  - 
Place  of  suing— Suit  to  recover  loan— Duty  of  debtor 
to  find  and  pay  creditor,  limits  of — Jurisdiction,  plea 
of ,  not  raised  before  Court  of  first  appeal,  whether 
call  be  taken  in  second  appeal. 

A  plea  of  want  of  jurisdiction  of  the  Trial  Court, 
raised  In  that  Court  but  not  taken  m  the  Court  of 
first  appeal,  may  nevertheless  be  raised  in  second 
appeal,  [p.  761,  col  1.] 

The  duty  of  a  debtor  to  find  and  pay  his  creditor 
ie  duly  imposed  upon  him  when  the  creditor  is  within 
the  realm,  [p  762,  col  1  ] 

Plaintiff,  a  money-lender,  carrying  on  business  in 
British  India,  advanced  a  loan  to  the  defendant,  a 
resident  of  a  Native  State,  which  was  made  re-payable 
by  instalments  in  the  Native  State.  Plaintiff  institut- 
ed a  suit  in  a  British  Court  to  recover  the  loan 

Held,  that  as  no  part  of  the  obligation  was  assumed 
or  was  to  be  discharged  by  the  defendant  in  British 
India,  the  British  Court  had  no  jurisdiction  to  enter- 
tain the  suit  [p.  762,  col.  1,] 

Appeal  from  the  Court  of  the  Resident  at 
Hyderabad,  Deccan, 

Messrs.  L.  De  Gruyther,  K.C  ,and  B.  Dube, 
for  the  Appellant 

Messrs.  George  Lowndes,  K.  C,,  and  E,  B. 
Raikes,  for  the  .Respondents. 

JUDGMENT. 

Lord  Blanesburgh.— This  is  an  ap- 
peal by  the  plaintiff  from  a  judgment  and 
decree,  dated  the  27fch  September  1922,  of 
the  Court  of  the  Resident  at  Hyderabad, 
reversing  a  decree,  dated  the  22nd  Novem- 
ber 1921,  of  the  Assistant  Resident  there, 
and  restoring,  albeit  on  other  grounds,  a 
decree  made  by  the  Civil  Judge  of  Secunder- 
abad,  dated  the  8th  July  19i9. 
.  The  suit  was  commenced,  by  the  appel- 
lant 'in  the  Court  of  that  Judge  in  Sep- 
tember 191  Jt.  Its  purpose  was  to  recover 
nypiey  lent  by  him  so  Jong  ago  as  1891  to 
the  grandfather  of  the  first  respondent  with 
re-payment  guaranteed,  so  it  was  alleged 
by  the  late  Sir  Asman  Jah,  Prime  Minister 
of  Hyderabad,  whose  estate  is  represented 
in  the  suit  by  his  son,  the  second  respond- 
ent. The  borrower,  the  alleged  surety, 
and  their  respective  representatives  were, 
or  are,  all  residents  in  Hyderabad,  the  capi- 
tal of  the  Nizam's  Dominions,  The  appel- 


lant, however,  has  &K  place* of 'business  at 
Seounderabad,  -a  neighbouring  British ^n- 
tobment,  and  asserting  that  the  loans,  were 
both  made  and  re-payable  there,  he  claimed 
that  his  suit  in  respect  of  them,  was  cogniz- 
able by  the  local  British  Court, 

But  this  was  not  the  appellant's  only  rea- 
son for  invoking  that  jurisdiction— -if  he 
could  successfully  do  so.  In  the-Courts  of 
the  Nizam  his  demands,  had  long  'since 
been  barred  by  lapse  of  time.  In  the  British 
Court,  however,  he  claimed  to  be '  en- 
titled to  escape  from  the.  operation  of  the 
Indian  Limitation  Act— an  Act  otherwise 
entirely  applicable  to  the  case — on  the 
ground  that  the  residence  of  the  defendant 
in  Hyderabad  was  a  "  foreign  "  residence 
which  took  his  claim  against  them  outside 
the  Statute  although  their  residence  was  in 
fact  only  six  miles  away. 

In  the  Courts  below  ir^ny  ^natters  of 
fact  were  canvdssed.  Most  *  of  these,  con- 
cluded by  concurrent  findings;  were1  before 
their  Lordships  treated'  as  settled,  and  the 
arguments  were  addressed  to  qtie  question 
only,  viz  ,'  was  the  Court  of  the  Civil  Judge 
of  Secunderabad  entitled  to  entertain  the 
suit  at  all  ? 

Tfyat  learned  Judge  had  held  that  he 
Jiad  jurisdiction  in  the  matter,  but  he 
dismissed  the  suit,  holding  on  the  view 
taken  by  him  of  the  facts,  that  the  appel- 
lant had  been  re- paid  all  that  was  due  to 
him. 

The  appellant  appealed  to  the  Assistant 
Resident  at  Hyderabad.  His  appeal  was 
resisted  only  by  the  second  respondent, 
and  he,  it  is  stated,  did  Jiot  there  raise  again 
his  objection  to  the  jurisdiction  of  the 
Court  takfm  before  the  Trial  Judge,  and 
certain  at  least  it  is  that  the  learned  Assist- 
ant Resident  made  no  4  reference  tp  the 
point  in  his  judgment,  by  which  the  claim 
of  the  appellant  was  in  effect  allowed  in 
full.  The  second  respondent  then  appealed 
to  the  Resident,  and  he,  takiiig  up  the  con- 
sideration of  the  question  afresh,  held  that 
the  Civil  Judge  of  Secunderabad  'had  no 
jurisdiction  in  the  tiaatter.  On  that  ground 
he  allowed  the  appeal  and  dismissed  the 
plaintiff's  suit,  expressing,  however,  at  the 
same  time  his  concurrence  with,  the  find- 
ings of  fact  of  the  Assistant  Reaidea*  where 
these  were  at  variance  with  the  findings  of 
the  Trkl  Judge,  The  plaintiff  again  ap- 
peals, f  .-  ;  ,*.•,,.<:<•  *  '  : 

At  the  ontset  their  Lordahipa  w>Uld  ex- 
press their  entire  -concurrence  with  the 


[92  I,  0,  1926  J         FIRM  OP  B.  B,  BANS1LAL-ABIRCHAND  V   GHUUM  MAHBUB  MAN. 


781 


learned  Resident  in  his  observations  upon 
the  importance  of  this  question  of  jurisdic- 
tion in  such-  a  case  as  the  present.  The 
respondents  are  both  of  them  subjects  of 
the  Nizam,  from  whose  cession,  as  the 
learned  Resident  points  out,  the  jurisdic- 
tion of  the  Secunderabad  Court  practically 
proceeds.  In  the  circumstances,  and  es- 
pecially where,  as  here,  the  liability  or  non- 
liability of  such  defendants  may  actually 
depend  upon  it,  the  question  of  jurisdic- 
tion becomes  of  first  importance,  different 
in^  character  from  such  a  question  when  it 
arises  merely  as  between  one  Court  arid 
another  in  British  India.  And,  while  their 
Lordships  would  not  here  have  upheld, 
even  if  it  had  been  pressed,  the  contention 
raised  in  his  printed  case  by  the  appellant 
that  this  question  of  jurisdiction  decided 
by  the  Trial  Judge  in  his  favour,  and  not 
re-opened  before  the  Assistant  Resident, 
must  now  be  treated  as  concluded  against 
the  respondents,  they  are  gratified  to  record 
that  that  contention  was  not  persisted  in 
before  the  Board.  Indeed,  as  they  have  al- 
ready said,  the  arguments  betore  them  were 
confined  to  its  discussion. 

Its  determination  turns  solely  upon  the 
question  whether,  in  this  case,  within  the 
meaning  of  s^  20  (c)  of  the  C.  P.  C.,  the 
cause  of  action  wholly  or  in  part  arose 
within  the  local  limits  of  the  Civil  Judge 
of  Scunderabad.  The  facts  upon  which  the 
answer  depends  lie  in  a  small  compass. 

In  1891  Muhammad  Ala-ud  din  Khan,  de- 
ceased, grandfathei  of  the  first  respondent, 
was  Silladar  of  Sir  Asman  Jah  Bahadur, 
Prime  Minister  of  the  Nizam  Having 
agreed  to  purchase  100  horses  to  form  part 
of  the  bodyguard  of  the  Prime  Minister 
Ala-ud-din  borrowed  from  the  plaintiff 
Rs,  40,000  to  pay  for  them,  and  arranged 
with  the  Paigak  of  the  Minister  for  re  pay- 
ment of  the  loan  with  interest  by  monthly 
instalments  by  means  of  deductions  from 
his  salary  in  the  manner  which  is  thus 
described  in  a  communication  addressed 
on  the  29th  July  1891,  by  the  Secretary  of 
the  Minister  to  the  Pay  Office  of  the 
Paigah : — 

"The  said  Silladar  for  purchasing  the 
horses  has  borrowed  from  Rai  Bahadur 
Bansilal  Abirchand  the  sum  of  Rs,  40,000 
;with  interest  at  1J  per  cent,,  and  has 
Assigned  the  liability^  to  pap  the  principal 
and  interest  by  monthly  instalments  of 
JSs,  1,009  upon  this  Secretariat.  Where- 


fore you  had  bettor  pay  to  the  person  who 
may  bring  the  chitti  of  the  said  Sowcar  the 
sum  of  Rs.  1,000  every  month." 

The  promise  made  to  the  plaintiff,  the 
fulfilment  of  which  was  thus  directed,  was 
contained  in  a  noto  which  had  been  ad- 
dressed by  the  same  Secretary  to  the  plaint- 
iff on  21st  July  1891  in  which  it  is  stated 
that  "every  month  at  the  time  of  distribu- 
tion of  pay  of  the  force,  after  taking  receipt 
of  Khan  Sahib  a  sum  of  Rs.  1,000  will  be 
paid  from  the  ilaqa  to  the  plaintiff's  ilaqa- 
dar,  who  may  bring  chitti  signed  by  the 
plaintiff  without  any  objection  or  preven- 
tion from  the  Sarkari  Treasury  until  the 
principal  and  interest  are  fully  liquidated. 

In  these  terms  was  the  promise  of  the 
Treasury  made,  and  their  Lordships  are 
willing  to  accept  without  deciding  that,  as 
alleged  by  the  plaintiff,  they  constituted  a 
contract  of  suretyship  Ala-ud-din  being 
the  principal  debtor 

His  own  obligation  as  such  is  expressed 
in  a  bond  of  the  25th  July  1891  in  which 
he  promises  the  plaintiff  : 

11  That  IQ  re-payment  of  the  said  sum 
(Rs.  4U,OuO)  and  until  the  principal  and 
interest  is  re-paid  one  instalment  of  a  sum  of 
Rs.  1,000  will  be  reaching  you  every  month 
from  out  of  the  distribution  of  the  pay  of 
the  force  Accordingly  I  have  also  caused 
a  guarantee  to  be  made  for  the  said  sum 
of  money  by  means  of  a  rubkar  dated  the 
2lst  July  IfiOl  from  the  office  of  the  Secre- 
tary of  Revenue.  The  instalment  of 
Rs.  1,000  which  has  been  agreed  will  reach 
you  directly  from  the  Treasury  irrespective 
of  the  fact  whether  there  is  any  saving  from 
out  of  the  salary  of  the  horses  or  not  .  There 
will  l>e  no  failure  in  the  instalments  reach- 
ing you.  If  for  any  reason  perchance  one 
instalment  is  defaulted  the  said  Sowcar  will 
have  power  to  sell  immediately  the  horses 
by  auction  and  recover  and  pay  himself  the 
total  amount." 

A  further  advance  of  Rs.  5,000  was  made 
by  the  plaintiff  on  9th  Augjist  1891  and  a 
final  advance  of  Rs.  7,628  on  the  6th  June 
1894,  These  for  present  purposes  may  be 
treated  as  having  been  made  on  the  same 
terms. 

As  to  their  meaning  and  effect  their 
Lordships  are  not  in  doubt.  The  Treasury 
or  surety  re  payment  is  to  be  made  to  the 
plaintiff  or  his  representative  at  the  office 
of  the  Treasury  at  Hyderabad  and  the 
instalments,  which  in  the  principal-debtor's 


bond  are  described  as  "  reaching "  the 
plaintiff  are  the  very  instalments  of  which 
payment  is  so  to  be  made.  There  is  no 
promise  either  by  the  principal  debtor  or 
the  surety  to  make  any  payment  at Secun- 
derabad, and  so  far  as  the  principal- debtor 
ia  concerned  the  bond  above  abstracted  is 
the  only  promise  on  his  part  which  is  forth- 
coming. It  is  quite  true  that  on  failure  of 
any  instalment  there  is  doubtless  an  im- 
plied promise  by  him  to  re-pay  the  loan, 
But  there  is  no  implied  promise  to  re-pay  it 
at  Secunderabad.  Even  by  British  law  the 
duty  of  a  debtor  to  find  and  pay  his  creditor 
is  only  imposed  upon  him  when  the  creditor 
is  within  the  realm.  And  the  plaintiff  has 
not  contended  that  if  there  be  any  such 
duty  at  all  imposed  by  Indian  Law  upon  a 
debtor  it  extends  in  this  respect  further 
than  in  England.  Accordingly,  so  far  as 
the  principal-debtor  is  concerned  there  is 
no  obligation  upon  him,  either  express  or 
implied,  to  make  any  payment  to  the  plaint- 
iff at  Secunderabad. 

Nor  so  far  is  there  any  such  obligation 
assumed  by  the  surety. 

But  it  is  contended,  and  the  Trial  Judge 
took  the  view  that  such  an  obligation  is 
to  be  found  in  two  documents  wiitten  in 
the  year  1901,  one  on  the  30th  March,  ad- 
dressed by  the  Treasury  Secretary  of  the 
appellant,  and  the  other,  on  the  13th  April, 
addressed  by  one  department  of  the  Prime 
Minister's  establishment  to  another,  a  copy 
being  forwarded  to  the  appellant. 

Their  Lordships  do  not  consider  it  neces- 
sary to  discuss  these  documents  in  detail. 
They  are  satisfied  that  they  were  never 
intended  to  alter  the  contractual  obligations 
of  the  surety,  At  most  they  indicated  a 
substituted  arrangement  to  be  continued 
only  so  long  as  was  convenient  ;  there  was 
neither  intention  to  alter  nor  any  considera- 
tion present  for  the  alteration  of  the  obliga- 
tions as  they  then  existed. 

It  follows  that  in  their  Lordships' judg- 
ment no  part  of  the  obligations  either  of 
the  principal-debtor  or  of  the  surety  was 
to  be  discharged  at  Secunderabad.  And 
no  obligation  vyas  assumed  there.  No  part 
of  the  plaintiff's  cause  of  action  accordingly 
arose  within  the  local  limits  of  the  Court 
of  the  Trial  Judge,  Hehad  no  jurisdiction  to 
entertain  the  suit,  and  in  their  Lordships1 
judgment  the  decree  of  the  learned  Resi- 
dent was  quite  right. 

Their  Lordahips  accordingly  will  humbly 


U&HA  SINGH  0.  90NDAH  SINGH.  [92  I.  0.  192<$J 

advise  His  Majesty  that  this  appeal  then 


from  be  dismissed  with  costs, 
z.  K,  Appeal  dismissed, 

Solicitors  fur  the  Appellants: — Messrs.,  1 

L.  Wilson  &  Co. 
Solicitors  for  the  Respondents:— Messn 

Lattey  &  Hart, 


LAHORE  HIGH  COURT. 

SECOND  CJVIL  APPEAL  No.  1335  OF  1924. 

January  t$,  1925 

Present:  — Mr.  Justice  Campbell. 
LADHA  SINGH — DEFENDANT — APPELLANT 

versus 

SUNDAR  SINGH—PLAINTIFF— 
RESPONDENT. 

Registration  Act  (XVI  of  1008),  s  17,  construction 
of — Further  charge  for  less  than  Rs.  100 — Registration 
—  Mortgage-  -Interest — Charge 

Section  17  of  the  Registration  Act  must  be  strictly 
construed  and  unless  a  document  is  clearly  brought 
within  its  purview  non-registration  is  no  bar  to  the 
document  being  admitted  in  evidence  In  cases  of 
doubt,  the  benefit  of  doubt  must  be  given  to  the 
person  who  wants  the  Court  to  receive  the  document 
m  evidence  [p  763,  col.  2  ] 

Attra  v.  Mangal  Singh,  65  Ind  Cap.  264;  2  L.  300; 
4L.  L  J  1;27P.  L.  K  1022;  A  1  R.  1922  Lah  43, 
followed 

A  deed  creating  a  further  charge  for  less  than 
Rs.  100,  which  does  not  supersede  the  previous  moit- 
gage  and  substitute  a  new  one  consolidating  the 
previous  one,  is  not  compulsoiily  registrable  |p  7(3, 
cols  1&2] 

A  mortgagee  is  entitled  to  treat  interest  due  under 
a  mortgage  as  a  charge  upon  the  property  in  the 
absence  of  a  contract  to  the  contrary  and  to  refuse  re- 
demption unless  it  is  included  in  redemption  price. 
[p  763,  col  2.] 

AuLia  Khan  v.  Kanshi  Ram,  17  Ind  Cas  677;  45 
P.  R  1913;  25  P.  W.  R  1913,  145  P.  L.  R  1913  and 
Jwala  Singh  v.  Tew  Singh,  71  Ind.  Cas.  801,  (1924)  A. 
I  R  (L)  273,  not  followed 

Ganga  Ram  v.  Nat  ha  Singh,  80  Ind.  Cas.  8?0;  5  L. 
425,  A.  I  R.  1924  P.  O  183,  22  A.  L  J.  688;  47  M. 
L  J  64.  20  L  \V.  101,  2o  Bom  L.  R,  750,  10  0,  <fe  A. 
L.  R  771;  35  M  L.  T.  141;  (1924)  M.  W.  N.  599;  2  Pat. 
L.  R  257;  11  0.  L.  ,1.534;  6  L.  L..J.  551,  51  1,  A. 
377;  1  L.  0.  416;  L.  R,  5  A.  'P,  0.)  133,  6  P  L.  T. 
97;  1  O.  W.  N.  469;  29  C.  W.  N.  558  (P.  0.),  fol- 
lowed. 

Second  appeal  from  a  decree  of  the 
Additional  District  Judge,  Amritsar  at 
Gurdaspur,  dated  the  7th  February  1924, 
affirming  that  of  the  Subordinate  Judge, 
Third  Class,  Tarn  Taran,  Distiiet  Amritsar, 
dated  the  8fch  January  1923. 

Laia  Fakir  Chandt  for  the  Appellant. 

Mr.  Duni  Ch&nd,  for  Mr.  Ganpat  Ra19  for 
the  Respondent, 


£92  1.  C.  1926]  LADHA  SINGH  tt.  SUNDAY  SINGH.  763 

JUDGMENT.— This    judgment     will    does  this.    la  Attra  y.  Mangal  Singh  (1)  the 


dispose  of  Second  Appeals  Nos.  1335  and 
1336  of  1924. 

There  were  two  suits  for  redemption  of 
two  mortgages  of  two  plots  of  land  which 
were  executed  on  the  25th  June  1906  One 
mortgage  was  for  Rs.  500  in  favour  of  Sohan 
Singh  and  the  other  was  for  Rs.  300  in 
favour  of  Ladha  Singh,  In  both  suits  the 
mortgagees  represented  that  a  further 
charge  had  been  created  in  the  sum  of  Rs.  56 
by  an  unregistered-deed  of  the  2nd  March 
1911.  The  lower  Appellate  Court  has  held 
that  the  unregistered- deed  was  inadmissible 
in  evidence  for  want  of  registration  and 
that  the  transaction  recorded  in  it  could  uot 
be  proved.  It  held  further  that  if  the  deed 
was  admissible  the  interest  claimed  by  the 
mortgagees  on  the  principal  euni  of  Ra.  56 
was  not  a  charge  upon  tt&  mortgaged  land. 
Redemption  was  allowed  on  payment  of 
Rs.  800  due  on  the  two  former  deeds  but 
as  the  plaintiff  had  deposited  Rs.  £50  in 
Court  this  was  actually  the  sum  which  the 
mortgagees  obtained. 

In  both  cases  the  mortgagees  have  ap- 
pealed. Rupees  212  are  claimed  on  the  un- 
registered deed,  i.  e.,  Ra.  6,  the  balance  of 
principal  and  Rs.  206  interest  and  this 
amount  is  equally  divided  between  the 
two  mortgagees.  It  has  been  urged  that 
both  the  decisions  of  the  lower  Appellate 
Court  described  above  are  contrary  to  law. 

In  regard  to  the  question  of  compulsory 
registration  the  learned  Additional  Judge 
has  held  that  the  document  of  the  2nd 
March  1911  effected  a  consolidation  of  the 
two  previous  mortgage- deeds  and  has  the 
effect  of  increasing  the  charge  on  either 
plot  by  a  sum  certainly  exceeding  R*  100, 
the  consequence  of  which  was  that  the  bond 
was  inadmissible  in  evidence  for  want  of 
registration.  1  do  not  comprehend  the 
reasoning  of  the  learned  Additional  Judge 
and  no  further  light  is  thrown  upon  it  by 
the  learned  Vakil  for  the  respondent  who 
has  asserted  that  the  finding  is  right  but 
has  not  been  able  to  quote  me  any  authority 
in  support  of  it.  I  have  examined  the 
terms  of  the  document  carefully  and  am 
unable  to  say  that  its  effect  is  more  than 
to  create  a  further  charge  of  Rs.  56  upon 
the  two  previously  mortgaged  plots.  If  it 
required  registration  it  must  have  pur- 
ported or  operated  to  create,  declare,  assign, 
limit  or  extinguish  some  right,  title  or 
interest  nn  immoveabie  property  of  the 
value  of  Rs,  100  and  I  cannot  see  that  it 


learned  Judges  declared  it  to  be  a  well 
established  rule  of  construction  that  s.  17 
of  the  Registration  Act  being  a  disabling 
section  must  be  strictly  construed  that 
unless  a  document  is  clearly  brought  within 
its  purview  non- registration  is  no  bar  to 
the  document  being  admitted  in  evidence 
and  that  if  there  is  no  doubt  on  the  subject 
the  benefit  of  the  doubt  must  be  given  to 
the  person  who  wants  the  Court  to  receive 
the  document  in  evidence.  The  contents  of 
the  deed  in  question  are  not  those  of  a 
document  superseding  the  previous  mort- 
gage contracts  and  substituting  an  entirely 
fresh  contract  and  the  words  cited  by  the 
learned  Additional  Judge  in  his  judgment 
mean  no  more,  in  my  opinion,  than  that 
the  redemption  price  of  the  two  previous 
mortgages  was  increased  by  a  further  sum 
of  Rs.  5(3.  I  hold  that  the  document  was 
not  one  which  comes  within  the  scope  of 
s  17  of  the  Registration  Act. 

The  stipulation  about  interest  immedi- 
ately followed  the  words  quoted  by  the 
learned  Additional  Judge  and  were  as  fol- 
jows  . — *  aursud  fi  sadi  do  rupaya  mahwari 
dena  mukarirkiya  hai\  The  learned  Addi- 
tional Judge  decided  that  this  was  a  sepa- 
rate sentence  which  had  nothing  to  do  with 
the  previous  sentence  providing  for  re- 
demption and  that  there  was  not  the  remot- 
est indication  in  the  deed  that  interest 
had  also  to  be  paid  before  redemp- 
tion could  be  effected.  For  this  con- 
clusion ho  lelied  upon  Aulia  Khan  v. 
Kanshi  Ram  (2)  and  Jwala  Singh  v,  Teja 
Singh  (3).  The  latter  case  certainly  sup- 
poits  him,  but  in  my  judgment  it  must 
bo  taken  to  have  been  overruled  by  the 
decision  of  their  Lordships  of  the  Privy 
Council  in  Gang*  Ram  v  Natha  Singh  (4). 
It  was  there  held  that  a  mortgagee  is 
entitled  to  treat  interest  due  under  a  mort- 
gage as  a  charge  upon  the  mortgaged  pro- 
perty in  the  absence  of  any  contract  to  the 
contrary  and  that  it  is  most  important 

(1)  65  Ind  Cas  254;  2  L.  300,  4  L.  L.  J.  1;  27  P.  L. 
R.  1922;  AIR.  1922  Lah  43 

(2)  17  Ind.  Gas  677;  45  P.  K  1013;  25  P.  W  R.  1913; 
14,5  P  L  K  1013 

(3)  71  Incl  Cas.  801;  A  I.  R  1921  Lah.  273. 

4}  80  Ind  Caa  820,  5  L.  425;  A  I  R  1924  P.  0. 
18H;  22  A.  L  J.  688;  47  M.  L  J.  64;  20  L.  W  101;  26) 
Boin  L.  R.  750,  10  O  &  A  L.  R.  771;  33  M.  L.  T. 
HI-  (1924)  M.  W.  N.  599;  2  Pat,  L.  R.  257;  11  O.  L. 
J  534  6  ll  L.  J  551;  51  L  A  377;  1  L.  0  446;  L  R. 
5  A,  (P.  0.)  133;  6  P.  L.  T,  97;  1  0.  W.  ».  4*9;  29  0, 
W.  N,  558  (P.  CX)* 


764 


PfiABHtJDAYAL  V.  LALTA  DAS, 


that  this  general  srule  should  not  be  shaken 
in  any  particular. 

Accordingly  1  accept  both  appeals  and  in 
each  case  modify  the  decree  by  directing 
that  the  redemption  price  to  be  paid  bv 
the  plaintiff  shall  be  increased  by  Rs.  106. 
The  appellants  will  have  their  costs  in  this 
Court  and  in  the  lower  Appellate  Court. 

K   L.  Appeals  accepted. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  484  OF  1924. 

December  8,  1925. 
Present:—  Mr.  Justice  Raza  and 

Mr.  Justice  Hasan. 

PARBHUDAYAL  AND  OTHERS  - 

DEFENDANTS  —  APPELLANTS 

versus 

Babu  LALTA  DAS  AND  OTHERS— 
PL4INT1FFS—  RESPONDENTS. 

Hindu  Law  —Succession-  Property  held  by  yati  — 
Disciples,  rights  of. 

A  bairagi  jaqir,  or  a  yati,  may  hold  private  pro- 
perty. [p.  765,  20!  L] 

On  the  death  of  a  yati  his  preceptor,  and  in  the 
absence  of  the  preceptor,  the  disciples  of  the  yati 
Would  succeed  to  any  private  properly  left  by  him. 


Appeal  against  the  judgment  and  decree 
of  the  District  Judge,  Qonda,  dated  the 
31st  October  1^24,  reversing  that  of  the 
First  Subordinate  Judge,  Bahraich,  dated 
the  21st  April  1923. 

Messrs.  Haidur  Husain  and  K.  P.  Misra, 
for  the  Appellants. 

My.  Bishesfiar  Nath,  for  the   Respondents. 

JUDGMENT.—  This  is  the  defendants1 
appeal  from  the  decree  of  the  Distiict 
Judge  of  Gonda,  dated  the  31st  of  October 
1924,  which  reversed  the  decree  of  the  First 
JSubordiaate  Judge  of  Bahraich,  dated  the 
21st  of  April  1923, 

The  decision  of  this  case  has  been  made 
difficult  by  the  manner  in  which  the  vPrial 
Court  As  well  as  the  Court  of  Appeal  has 
dealt  wjth  it.  The  case  as  setjforth-  in  the 
plaint  is  extremely  simple  and  isiree  from 
any  controversial  point  of  law  if  its  true 
nature  were  understood  and  firmly  grasped. 
The,  plaintiffs-  respondents'  case  was  that 
the  property  in  suit  belonged  to,  Baba 
Janki  Das  and  that  on  his  death  they  were 
entitled  to  3ucceed  under  the  ordinary  - 
Hiniu^I^w  4q  the  estate  6f  Bab#,  Janki 
Das.  Baba  Janki  Das  was  admittedly  a 


[92 1.  0, 1926] 

Bairagi  jaqir  or  in  other  words  a  sanyasi. 
The  title,  on  which  the  plaintiffs  rested 
their  claim  of  inheritance,  consisted  of  the 
fact  that  they  were  the  disciples  of  Baba 
Janki  Das.  To  this  simple  case  the  defend- 
ants replied  that  the  property  in  suit  origi- 
nally belonged  to  one  Baba  Ram  Charan 
Das,  that  it  was  held  by  Baba  Janki  Das 
with  the  permission  of  the  defendants  and 
that  the  defendants  were  the  rightful  heirs 
of  the  estate  of  Baba  Ram  Oharan  Das, 

la  order  to  appreciate  the  relevency  of 
the  defence  to  the  suit  we  have  to  state 
some  fasts  antecedent  to  the  title  of  Baba 
Janki  Das  to  the  property  in  suit  on  which 
the  plaintiffs  rely.  One  Baba  Ram  Oharan 
Das  was  a  sanyasi  bairagi  or  a  yati.  That 
he  belonged  to  such  a  sect  of  mendicants 
leads  to  the  presumption  that  he  must 
have  been  a  member  of  the  twice  born 
classes.  On  his  death  in  1894,  he  was  buried 
by  his  two  disciples,  Ram  Qhulam  Das 
and  Baba  Janki  Das,  who  erected  a  samadh 
or  tomb  over  the  place  where  the  body  was 
lain.  It  is  found  by  both  the  Courts  below 
that  Ram  Ghulam  Das  and  Baba  Janki 
Das  also  set  up  a  temple  and  then  estab- 
lished an  annual  fair  at  the  spot.  Ram 
Ghulam  Das  died  in  1897.  He  was  succeed- 
ed by  his  co-disciple  brother,  Baba  Janki 
Das,  in  the  possession  and  management  of 
the  estate,  which  the  two  disciples  had 
brought  into  existence.  Baba  Janki  Das 
died  on  the  20th  November  1918  and,  as 
already  stated,  the  plaintiffs  claim  succes- 
sion to  Baba  Janki  Das, 

The  Courts  below  have  introduced  into 
this  case  the  question  of  custom  regulatiug 
the  succession  to  this  temple  as  if  it  were 
a  mutt  or  asthan  of  ancient  times,  the 
succession  to  which  would  be  regulated  by 
the  rules  of  practice  that  were  observed  in 
such  institutions  We  think  that  that  was  a 
diversion  which  was  not  permitted  by  the 
pleadings  in  the  case.  At  the  hearing  of 
the  appeal  before  119  the  line  of  attack 
taken  was  that  the  custom,  on  which  the 
finding  of  the  Court  of  Appeal  rests,  was 
npt  established.  In  support  of  this  argu- 
ment which,  according  to  our  judgment, 
was  irrelevant,  a  large  number  of  cases 
decided  by  their  Lordships  of  the  Privy 
Council  were  cited  to  establish  the  pro- 
position that  the  succession  to  a  particular 
mult  depends  upon  the  rules  of  usage  appli- 
cable to  that  ran tt. 

The  findings  of  th^  Courts  belo.w  are  not 
clear  on  certain  questions,  but  in  the  cir- 


L  0.  1926]  MUNICIPAL  COMMITTEE 

cumstances  of  the  case  and  having  regard 
to  the  evidence,  there  can  be  no  doubt 
that  the  following  fact  shave  been  establish- 
ed'— 

The  property  in  suit  consists  of  certain 
moveables  in  the  shape  of  clothes  and  other 
articles  of  domestic  needs  and  of  certain 
items  of  immoveable  pioperty,  for  instance, 
the  temple,  garden,  tank  and  other  appur- 
tenance of  a  similar  nature.  The  immove- 
able property,  to  which  reference  has  just 
now  been  made,  was  the  outcome  of  the 
joint  exertions  of  Ram  (Ihulam  Das  and 
Baba  Janki  Das.  On  the  death  of  Ram 
Ghulam  Das  in  J897  Baba  Janki  Das  entei- 
ed  into  undisputed  possession  of  the  estate 
then  in  existence  and  finally  Baba  Janki 
Das  having  held  possession  of  all  these 
propei ties  from  the  year  1897,  died,  m 
1918  Theie  is  no  proof,  dnect  or  indirect, 
of  any  dedication  of  these  pioperties  in  the 
true  sense  of  the  term.  We  must,  therefore, 
hold  that  the  plaintiffs  have  succeeded  in 
establishing  this  fact  that  the  propeities 
in  suit  belonged  to  Baba  Janki  Das  as  his 
private  property.  Baba  Janki  Das  being 
himself  a /cup?-  naturally  treated  the  temple 
and  its  appurtenances  m  a  spirit  of 
religious  devotion,  but  that  fact  did  not 
deprive  him  of  his  ownership  in  those 
properties.  It  is  further  admitted  that  the 
plaintiffs  are  the  chelas  of  Baba  Janki  Das. 
The  simple  question  of  law  which,  there- 
fore, arises  in  the  appeal  is  whether  pro- 
perties held  by  Janki  Das  can  be  inherited 
by  the  present  plaintiffs  under  any  rule  of 
Hindu  Law.  It  is  not  denied  that  a  bairagi 
faqir  or  an  ascetic  or  even  a  yati  may  hold 
private  property  of  his  own  and  we  have 
found,  as  already  stated,  that  Baba  Janki 
Das  held  the  properties  in  suit  in  that 
character. 

The  rule  of  inheritance  applicable  to  the 

S resent  case  is  given  in  all  the  books  of 
indu  Law.  We  will  first  of  all  refer  to 
the  Institutes  of  Yajnavalkya.  In  the 
Chapter  relating  to  the  division  of  property 
among  heirs  the  140th  couplet  is  translated 
a$  follows  :  — 

"The  preceptor,  a  qualified  disciple,  a 
brother  of  the  same  religious  persuasion 
and  an  associate  in  holiness  (on6  living  in 
the  same  hermitage  and  belonging  to  the 
same  order),  shall,  in  order,  inherit  (i.e.,  the 
next  succeeding  in  the  absence  of  the  pre- 
vious person),  the  properties  (books,  clothes, 
etc.)  of  a  Vanaprastha,  Yati,  and  a  Brahma- 
eharin  (religious  student).11 


V.  MUt  HAJ. 

We  have  already  held  that  Baba  Janki 
Das  was  a  yati.  We  have  also  held  and 
indeed  it  is  admitted  that  the  two  plaintiffs 
are  the  disciples  of  Baba  Janki  Das.  We 
are,  therefore,  of  opinion,  that  the  plaintiffs 
have  succeeded  in  making  out  their  title 
to  the  property,  to  which  they  laid  claim 
in  this  suit.  The  rule  of  law,  which  we 
have  quoted  from  Yajnavalkya,  is  stated  in 
other  books  of  Hindu  Law  also.  Sastri's 
Hindu  Law,  1924  Edition,  page  688;  Ram 
Krishna's  Hindu  Law,  1913  Edition, 
page  166.  Ghose's  Hindu  Law,  1st  Edition, 
pages  917  and  U18  and  Gour's  Hindu  Code, 
2nd  Edition,  page  1052.  The  view  of  law, 
which  we  have  taken,  is  also  supported  by 
a  decision  of  the  late  Court  of  the  Judicial 
Commissioner  in  the  case  of  Dngbijai  Singh 
v  Mahant  Bishambar  Das  (1) 

The  appeal  fails  and  is  dismissed  with 
costs. 

z  K  Appeal  dismissed. 

(I)  30  0  281 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No  1457  OF  1924. 

January  15, 1925. 
Present: — Mr.  Justice  Campbell. 
MUNICIPAL  COMMITTEE,  NOTIFIED 

AREA,  TARN  TARAN  THROUGH 
PRESIDENT  AND  SECRETARY  OF 
MUNICIPAL  COMMITTEE,  TARN 
TARAN  —DEPENDANTS— APPELLANTS 

versus 
MUL  RAJ — PLAINTIFF—RESPONDENT. 

Punjab  Municipal  Act  (III  of  1011),  ss.  17J,  193— 
Tacit  sanction— Erection  of  building 

The  tacit  sanction  piovided  for  by  3  193,  Punjab 
Municipal  Act,  covers  only  erections  of  buildings 
entiiely  within  the  bounds  of  a  pei son's  own  land 
but  does  not  cover  a  projection  or  structure  over- 
hanging or  encroaching  upon  any  street  or  road, 
[p  766,  col  2  ] 

Municipal  Committee  of  Delhi  v  Devi  Sahai,  62 
P  R  1907,  105  P.  L,  R.  1908,  147  P.  W.  R,  1907,  fol- 
lowed. 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Amritsar,  dated  the  2oth  Feb- 
ruary 1924,  affirming  that  of  the  Sub-Judge, 
Fourth  Class,  Tarn  Tanm,  dated  the  9th 
July  1923. 

Dewan  Mehr  Chand,  for  the  Appellants. 

Mr.  Lalchand  Mehra,  for  the  Respondent* 

JUDGMENT.— This  second  appeal 
arises  out  of  the  following  situation  : — 

The  plaintiff  in  the  suit  applied  to 


734 


MAHOMED  fltODKj  t?,  LT  KAN  SHOO. 


[921.0,1926] 


Notified  Area  Committee,  Taran  Taran,  on 
the  13th  of  November,  1922,  under  s.  189  of 
the  Punjab  Municipal  Act  tor  permission  to 
erect  a  certain  building.  The  building  in- 
cluded a  certain  chhajja.  The  Municipal 
Committee  passed  an  order  refusing  per- 
mission but  this  was  on  the  15th  of  Janu- 
ary 1*23,  after  the  expiry  of  the  two 
months  referred  to  in  the  proviso  to  s,  193. 
The  plaintiff  proceeded  to  build  the  chhajja 
and  the  Committee  then  demolished  it  act- 
ing under  s.  172  of  the  Act.  The  demoli- 
tion was  actually  carried  out  after  the 
plaintiff  had  filed  his  present  suit  for  an 
injunction  restraining  the  Committee  from 
interfering  with  his  chhajja. 

The  Trial  Court  held  that  s.  172  did  not 
apply  since  the  chhajja  was  not  a  projec- 
tion over  a  street  and  the  plaintiff  was  given 
a  decree  for  the  injunction  prayed  for  and  the 
defendant  Com tnittee  was  ordered  to  re-build 
the  chhajja.  Appeal  was  made  to  the 
learned  District  Judge.  He  held  firstly  that 
the  well  and  thara  overhung  by  the  chhajja 
came  within  the  definition  of  a  street  as 
contained  in  Punjab  Act  lit  of  191 1. 
Secondly,  he  held  that  under  s.  Ib3  (proviso) 
the  Municipal  Committee  by  failure  to  pass 
orders  on  the  plaintiff's  application  for  two 
months  were  to  be  deemed  to  have  sanc- 
tioned the  building  of  the  chhajja  absolutely 
and  thirdly  the  learned  District  Judge 
altered  the  injunction  for  re- building  the 
chhajja  into  a  decree  for  Rs.  100  compensa- 
tion. 

The  Committee  have  come  to  this  Court  in 
second  appeal.  The  learned  District  Judge 
with  reference  to  his  second  finding  wrote 
in  his  judgment :  "As  the  Committee  fail- 
ed to  pass  orders  and  thus  sanctioned  the 
proposed  building  absolutely,  it  was  in  my 
opinion  unnecessary  for  the  plaintiff  to 
receive  any  further  permission,  whether 
written  or  otherwise,  for  the  purposes  of 
s,  172.  There  is  no  authority  for  interpret- 
ing the  very  wide  expression  relating  to 
'absolute  sanction1  in  s.  193  in  such  a  way 
as  to  exclude  the  'written  permission'  re- 
quired by  s.  172." 

The  learned  District  Judge's  attention 
was  not  directed  to  Municipal  Committee  of 
Dehli  v,  Devi  Sahai  (1)  a  decision  by  a  Divi- 
sion Bench  of  the  Chief  Court  which  con- 
tains the  direct  authority  which  he  found 
lacking.  It  was  there  ruled  that  a  tacit 
sanction  provided  for  by  what  corresponded 

(1)  62  P,  R.  1907;  105  P.  L.  R.  1908;  147P.WrR, 
1907, 


then  in  the  law  to  s.1^3  covers  only  erection, 
or  re-erection  of  buildings  entirely  within 
the  bounds  of  a  person's  own  land,  but  does 
not  cover  a  projection  or  structure  overhang- 
ing or  encroaching  upon  any  street  or  road. 

The  learned  Counsel  for  the  plaintiff- res- 
pondent has  not  attempted  to  distinguish 
Municipal  Committee  of  Delhi  v.  Devi  Sahai 
(I)  but  has  supported  the  learned  District 
Judge's  decision  on  the  ground  that  his  find- 
ing about  the  thara  and  well  being  a  street 
is  incorrect.  There  can,  however,  be  no 
interference  with  this  finding.  The  defini- 
tion of  street  in  the  present  Act  is  extraordi- 
narily wide,  and  the  learned  District  Judge 
held  on  evidence  that  the  well  and  thara 
are  an  erection  which  lies  on  the  side  of  the 
roadway  upto  the  boundaries  of  the  adja- 
cent property  and  that  they  are  not  private 
property. 

The  result  is  that  the  case  came  within 
s.  172  of  the  Act  and  the  plaintiff  is  entitled 
to  no  relief.  The  appeal  is  accepted  and 
the  plaintiff's  suit  is  dismissed  with  costs 
throughout, 

K.  L.  Appeal  accepted. 


RANGOON  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  191  OF  1924. 

May  11,  1925. 

Present:-  Sir  Sydney  Robinson,  KTM  Chief 

Justice,  and  Mr.  Justice  Maung  Ba. 

MAHOMED  SIDD1Q— APPELLANT 

versus 
LI  KAN  SHOO-RBSPONDBNT. 

Transfer  of  Property  Act  (IV  of  1882),  $.  55— 
Vendor  and  purchaser — Defect  in  title,  whether 
"miterial  defect" —Fraudulent  concealment  of  defect 
-—Possession,  failure  to  give — Sale,  whether  can  be 
cancelled. 

A  defect  in  title  is  a  "material  defect"  within 
the  meaning  of  those  words  as  used  in  s  55  of  the 
Transfer  of  Property  Act.  [p  767,  col.  2  ] 

Where  a  vendor  of  immoveable  property  fails  to 
disclose  to  the  purchaser  a  defect  in  the  title  which 
the  latter  could  not  have  himself  discovered,  or  fails 
to  deliver  possession  of  the  property  sold  to  the  pur- 
chaser, the  latter  ia  entitled  to  cancel  the  sale  and 
to  sue  to  recover  the  purchase-money  paid  by  him 
together  with  the  incidental  expenses  incurred  by 
him.  [ibid.] 

First  appeal  against  a  decree  of  the 
Original  Side  in  (X  R.  No.  396  of  1923. 

Mr.  Vertannes,  for  the  Appellant. 

Mr.  Bannerji,  for  the  Respondent. 

JUDGMENT.— The  defendant-appel- 
lant is  the  son-in-law  of  one  Mg,  Po  Bin*  On 


[92  i  0,  1926]  MAHOMED  SIDDTQ  fl. 

the  28th  August  1622  he  purchased  the 
house  and  land  in  question  from  his  father- 
in-law.  The  site  was  leased  from  the 
Development  Trust  and  the  lease  is  in 
favour  of  Po  Sin  alone.  On  the  4th  of 
December  1922  the  defendant- appellant 
purported  to  convey  this  property  to  the 
respondent  for  Es  7, SCO  and  a  xegisteied 
deed  vias  executed  and  the  purchabe  price 
paid.  Then  the  respondent,  who  had  bought 
the  property  with  a  view  of  enlarging  an 
adjoining  property  of  his,  sought  to  obtain 
possession.  He  found  that  one  Ma  Kin  was 
in  possession  of  a  pait  of  the  house.  We 
are  informed  by  the  appellant's  Counsel  that 
his  client  gave  the  respondent  such  posses- 
sion as  the  propei ty  admitted  of  by  taking 
him  to  Ma  Kin,  who  agreed  to  attorn  to  the 
respondent.  As,  however,  Ma  Kin  would 
not  vacate  the  premises,  the  respondent 
brought  a  suit  m  the  Small  Cause  Court 
alleging  that  she  was  his  tenant,  This^as 
appaiently  done  because  the  conveyance 
having  been  executed  and  registeied,  110 
title  lemained  in  the  appellant  on  which  he 
could  sue.  He,  however,  gave  evidence  in 
favour  of  the  respondent  infcthe  respondent's 
case  that  Ma  Kin  \vas  his  tenant  That 
suit  was  dismissed  and  the  respondent,  be- 
ing unable  to  obtain  possession  of  the  pro- 
perty, has  brought  the  present  suit  to  recover 
the  purchase  price  paid  with  interest  and 
including  stamp  fees  and  registration  fees. 
The  plaintiff  alleges  that  Ma  Kin  claims 
to  be  the  wife  of  Mg.  Po  Sin  and  that  she 
refuses  to  give  possession.  He  further 
alleges  that  the  defendant  was  aware  of 
Ma  Kin's  claim  and  fraudulently  conceal- 
ed the  fact  when  purporting  to  sell  the 
house  to  him.  The  learned  Judge  in  the 
Court  below  has  held  that  there  is  no 
defence  to  the  suit  and  has  granted  a  decree 
as  prayed.  He  held  that  the  allegation  of 
fraud  was  unnecessary.  It  is  admitted  that 
the  appellant  was  bound  to  give  possession 
had  the  respondent  demanded  it;  but  it 
is  urged  that  he  never  demanded  it  and  so 
the  appellant  ^as  relieved  of  that  duty.  It  is 
further  urged  that  a  plea  of  fraudulent 
concealment  was  essential  in  that  the  con- 
veyance had  been  executed. 

The  matter  falls  within  the  purview  of 
s.  55  of  the  Transfer  of  Property  Act.  By  sub- 
8.  (1)  (a)  the  seller  is  bound  to  disclose 
to  the  buyer  any  material  defect  in  the 
property  of  which  the  seller  is,  aud  the 
buyer  is  not,  aware  and  which  the  buyer 
could  not,  with  ordinary  care,  discover. 


LI  KAN  SHOO.  707 

By  sub- s.  (1)  (/)  the  buyer  is  bound  to  give 
such  possession  of  the  property  as  its  nature 
admits.  By  subs  (2)  the  seller  is  to  be 
deemed  to  contract  with  the  buyer  that  the 
mteiest  which  the  seller  professes  to  tians- 
ferto  the  buyer  subsists  and  that  he  has 
power  to  transfer  the  same  and  the  last  sent- 
ence of  the  section  lays  down  that  an  omis- 
sion to  make  such  disclosure  as  is  men- 
tioned in  sub  s.  (1)  (a)  is  fraudulent. 

As  has  been  pointed  out,  the  title  to  the 
property  as  disclosed  in  the  title-deeds 
from  the  beginning  lay  in  Mg  Po  Sin.  The 
fact  that  theie  weie  tenants  who  occupied 
the  house  may  have  been  known  to  the 
lespondent ;  but  we  aie  unable  to  hold 
that  he  must  have  been  put  on  an  enquny 
as  to  whether  Ma  Kin  was  the  legal  wife  of 
Mg.  Po  Sin  or  whelhei  she  was  laying  claim 
to  any  portion  of  the  propei  ty.  The  defect 
in  this  case  was  a  defect  in  the  title  and  that 
is  included  in  the  woids  "material  defect." 
[Huji  EssaSvlleman  v.  Dayabhai  Parama- 
nandas  (1)J  We  must,  theiefore,  hold  that 
this  matenal  defect  would  not  have  been  dis- 
covered by  the  respondent  and  that  the  duty 
rested  on  the  seller  to  disclose  this  defect 
and  that  his  omission  to  do  so  is,  therefore, 
fraudulent.  In  the  next  place  by  sub-s  (2) 
the  seller  must  be  taken  to  have  contracted 
that  he  was  the  owner  of  this  property  and 
that  he  had  power  to  transfer  it  It  seems 
impossible  to  hold  that  the  appellant  was 
not  required  to  give  possession  to  the  res- 
pondent. The  purpose  for  w?hich  the  pro- 
perty was  bought  was  one  which  required 
complete  possession  and  it  is  admitted  that 
appellant  went  to  the  respondent  to  give 
him  possession,  but  respondent  did  not 
take  any  possession.  There  was  thus  a 
contract  between  the  parties  which  is  in 
effect  tantamount  to  a  covenant  for  a  title. 
[Basaradd  Sheikh  v.  Enajaddi  Moleah  (2)]. 
There  was  the  duty  to  give  possession  which 
has  not  been  given  and  there  was  fraudu- 
lent concealment  of  a  material  defect  in 
the  title. 

Under  these  circumstances  the  decree  of 
the  Court  below  must  be  confirmed  and 
this  appeal  dismissed  with  costs  throughout. 
The  respondent  must  retuin  to  the  appel- 
lant the  conveyance  that  has  been  execut- 
ed, 
z.  K.  Appeal  dismissed. 

(1)  20  B  522;  Chitty's  S.  0  O  R.  460;  10  Ind.  Dec. 
(*  8)!)13 

(2)  M  0.  298,  2  C.  W.  N.  222,  13  lad.  Dec    (N.  s.) 
200, 


768 

ALLAHABAD  HIGH  COURT. 

EXBOOTION  FIRST  GIVIL  APPEAL  No.  264 

OF  1925. 

December  10, 1925. 

Present— Mr.  Justice  Sulaiman. 

LALLU  SINGH— OBJECTOR— APPELLANT 

versus 

Rai  Bahadur  Pandit  GUR  NARAIN— 
DECREE- HOLDER— RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  s  2  (12)— 
Realizations  made  by  person  in  wrongful  possession — 
Decree  for  future  mesne  profits  from  date  of  suit — 
Arrears  of  rent  collected  during  pendency  of  suit,  whe- 
ther must  be  paid  over — Profits,  meaning  of 

With  regard  to  collections  in  villages  the  word 
"prolits"  includes  realisations  of  arrears  of  past  years 
as  well  as  for  current  years 

Defendant  waa  m  wrongful  possession  of  plaintiffs 
village  properties  and  made  realisations  Plaintiff 
obtained  a  decree  against  the  defendant  "for  future 
mesne  profits  from  the  date  of  the  suit."  During  the 
period  subsequent  to  the  institution  of  the  suit,  de- 
fendant had  made  collections  of  arrears  of  rent  for 
past  years  and  also  rents  for  the  current  year 

Hdd>  that  under  the  decree  the  plaint  lit  was  en- 
titled to  recover  whatever  lents  had  been  realised  by 
the  judgment-debtor  in  the  years  in  question  irres- 
pective of  the  fact  whether  those  were  arrears  of  rent 
for  previous  years  or  whether  they  were  on  account 
of  the  current  year. 

Execution  first  appeal  against  a  decree 
of  the  Subordinate  Judge,  Mainpuri,  dated 
the  17th  of  March  1925. 

Mr.  A.  Sanyal,  for  the  Appellant. 

Mr.  Baleshwari  Prasady  for  the  Respond- 
ent. 

JUDGMENT.— This  ia  an    execution 
first  appeal    by  the  defendant  judgment- 
debtor  arising  out%  of  a    suit  in  which    the 
plaintiff  obtained  decree  for  "future  mesne 
profits  from  the  date  of  the  suit"  to  be  as- 
certained   in    the  execution     department. 
The  defendant  was  in  wrongful  possession 
of  the  plaintiff's  village  properties  and  made 
realisations.     During    the  period  subsequ- 
ent to  the  institution  of  the  suit  he  made 
collections  of  arrears   of  rent  for  the  past 
periods    and    also   rents    for  the  current 
year.    The  learned  Subordinate  Judge  has 
held  that  under  the  decree  the  plaintiff  is 
entitled  to   recover   whatever  rents    have 
been  realised  by  the  judgment-debtor  in 
the  years  in  question  irrespective  of  the 
fact  whether  those  were  arrears  of  rent  for 
previous  years   or  whether  they   were  on 
account  of  the  current   year.     In   appeal 
before  me  it  is  contended  that  only  such 
arrears  as  were  collected  by  the  defendant 
,fpr  the  period   subsequent  to  the  institu- 
tion of  the  suit  should  have  been  decreed. 
It  is  urged   that   there    was   no  decree 


.  OUR 


1.  0. 


for  the  previous  years  and  the  defendant, 
therefore,  was  entitled  to  appropriate  those 
rents  even  though  he  collected  them  sub- 
sequently during  the  year  of  the  pendency 
of  the  suit. 

Under  s.  2  (12),  C.  P.  0.,  the  expression 
'mesne  profits11  of  properties  is  defined  as 
being  profits  which  the  person  in  wrongful 
possession  of  such  property  actually  receiv- 
ed or  might  with  ordinary  diligence  have 
received  therefrom  together  with  interest 
on  such  profits.    It  is  clear,  therefore,  that 
the  decree-holder   is  entitled  to  whatever 
profits  the  defendant  in  wrongful  posses- 
sion did  actually  receive.    Had  he  not  been 
in  wrongful  possession  he  would  not  have 
been  allowed  to  realise  the  arrears  of  rent. 
The  total  amount  realised  by  him  during 
the  period  is,  therefore,  the    amount  which 
he  actually  received  as  pro  fits- of  that  pro- 
perty.   Furthermore,  it  may  be  pointed  out 
that  with  regard  to  collections  in  villages 
the  word  "profits"  has  always  been  intended 
to  include  realisations  of  arrears  for  past 
years  as  well  as  for  current  years.    In  the 
case  of   Nand    Kishore  v.  Ram  Ratan  (1) 
Mahmood,  J  ,  pointed   out  that  under  the 
Rent  Act  the  word  "profits11  meant  "not  only 
rent  in  respect  of  the  years  to  which  the 
rent  relates  but  also  to  such  arrears  of  rent 
as  are  actually  realised  by  the  lambardar 
during  kthe  year  to  which  such  suit  may 
relate/1    The  same  conception  of  profits  is 
the  basis  of  the  decision  of  the  Full  Bench 
case  of  Sheo  Ghulam  v.  Salik  Ram  (2)  where 
collections  of  arrears  for   past  years  were 
deemed  to  be  a  part  of  the  profits  for  the 
year  during  which  they;  were  collected  so 
as  to  give  a  fresh  start  of  limitation  to  co- 
sharers.  The  same  meaning  is  also  attached 
to  " profits"  in  Art.  109 of  the  Limitation 
Act, 

I  am  accordingly  of  opinion  that  the 
view  taken  by  the  learned  Subordinate 
Judge  was  correct.  I  dismiss  this  appeal 
with  costs  including  in  this  Court  fees  on 
the  higher  scale. 
z-  K«  •  Appeal  dismissed, 

(1)  A.  W   N.  (1887)  250. 

(2)  84  Ind.  Gas.  158;  22  A.  L  J  610;  A.  I.  R.  1924 
All.  481;  46  A.  791;  L.  R.  5  A,  189 


[92  L  0.  1926] 


ABDUL  QADIR  V.  ILiHl  BAKH^ff. 


769 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No  1193  op  1924 

January  8,  1925. 

Present: — Mr   Justice  Campbell. 

ABDUL  QAD1R  AND  OTHERS  — 

DEFEN  D.A  NTS  —A  PPELLAN  TS 

versus 

ILAHI  BAKHSH  AND  OTHERS— PLAINTIFFS- 
RESPONDENTS 

Civil  Procedure  Code  (Act  V  of  1908),  s  1  I—Res 
judicata—  Mixed  question  of  law  and  fact — Custom, 
question  of. 

A  decision  on  a  mixed  question  of  law  and  fact 
cannot  be  re-agitated  m  a  subsequent  suit  [p  76(), 
col  2] 

The  question  whether  by  custom  the  right  to  receive 
the  offerings  at  a  shrine  is  alienable  or  not  is  a  mixed 
question  of  law  and  fact  [ibid  } 

First  appeal  from  a  decree  of  the  District 
Judge,  Sialkot,  dated  the  8th  February 
1924,  confirming  that  of  the  Sub  Judge, 
Fourth  Class,  Sialkot,  dated  the  27th  Feb- 
ruary 1923. 

Bakhshi  Tek  Ghand,  for  the  Appellants. 

Lala  Badri  Das,  R.  B  ,  and  Sheikh  Mahom- 
ed Munir,  for  Sheikh  Niaz  Mahomed,  for  the 
Respondents 

JUDGMENT.— A  preliminary  objec- 
tion that  no  appeal  lies  has  no  force.  It 
is  suggested  that  the  suit  IH  of  the  nature 
cognizable  by  Courts  of  Small  Causes,  and 
since  the  value  of  the  subject-matter  does 
not  exceed  Rs.  500,  s  102  of  the  0  P  C 
applies.  The  plaint,  however,  contains  a 
prayer  for  an  injunction  and  as  framed 
the  suit  for  that  reason  could  not  have  been 
tried  by  a  Court  of  Small  Causes.  The 
objection  is  overruled 

The  origin  of  the  suit  is  as  follows*  — 

Nur  Din,  the  father  of  defendants  Nos.  1 
and  2  and  Abdul  Qadir  and  Abdul  Aziz, 
defendants  .Nos.  3  and  4  who  are  majaivars 
of  a  certain  Muhammadan  shrine  in 
Sialkot,  on  the  2nd  of  July  1905,  mort- 
gaged to  a  Hindu — one  Chuni  Shah— cer- 
tain property  including  their  share  in  the 
offerings  made  at  the  shrme  The  suit  is 
based  upon  that  mortgage  and  is  brought 
by  the  successors-in  interest  of  Chuni 
Shah  for  Rs.  278  which  is  alleged  to  repre- 
sent the  mortgagee's  share  of  the  offerings 
for  a  certain  period. 

The  principal  plea  of  the  defendants  was 
that  the  rights  in  these  offerings  were 
inalienable  and  amongst  others  the  three 
following  issues  were  framed  : — 

(2)  Is  the  right  in  the  off erings  alienable  ? 

(3)  Cannot  the  defendants  raise  objections 
as  to  the  right  being  non- transferable? 

49 


(4)  Whether  s.  11  of  the  C.  P.  C.  operates 
as  a  bar  to  this  suit  ? 

The  pievious  suit  referred  to  was  one 
brought  in  1912  by  Chuni  Shah  for  Rs.  310, 
the  mortgagee's  share  of  the  offerings,  and 
the  defendants  were  Nur  Din  and  Abdul 
Qridir,  Abdul  A#iz  anda fourth  man,  Taj  Din> 
who  was  said  to  be  the  person  who  actually 
collected  the  offerings  The  third  issue  in 
that  suit  was.  is  the  income  from  the  offer- 
ings of  the  khankah  not  alienable  ?  and 
this  was  decided  in  the  negative,  namely, 
that  the  offerings  were  alienable.  It  has 
been  held  by  both  the  Courts  below  that 
this  decision  is  resyudicata.  In  the  pre- 
sent suit,  on  the  issues  above  quoted  the 
suit  has  been  dismissed  in  consequence. 
The  only  question  for  decision  in  second 
appeal  is  whether  there  is  in  fact  any  res 
judicata 

It  was  argued  before  the  learned  District 
Judge  and  repeated  in  the  present  memo- 
randum of  appeal,  that  the  transfer  of  a 
share  in  the  offerings  in  suit  was  an  act 
opposed  to  public  policy  and  contrary  to 
the  trusts  of  the  Muhammadan  religion,  and 
the  case  for  the  appellants  is  that  because 
the  previous  decision  was  on  a  point  of  law 
there  is  no  res  judlcata.  Mr.  Tek  Chand 
for  the  appellants  concedes  that  the  case 
law  on  s  11  of  the  C  P  C,  may  be  sum- 
marized as  follows  When  the  previous 
question  in  issue  which  has  been  decided 
is  one  purely  of  fact  all  High  Courts  are 
agreed  that  it  cannot  be  re*agitated.  They 
also  agree  that  it  cannot  be  re-agitated 
when  the  question  is  a  mixed  one  of  law 
and  fact,  but  when  it  is  a  question  of  pure 
law  there  is  a  distinct  conflict  of  opinion, 
and  theie  is  no  direct  authority  in  any 
pronouncement  by  this  Court  or  by  the 
Chief  Court. 

Mr  Badri  Das  contends  that  the  question 
is  a  mixed  one  of  law  and  fact,  and  I  think 
that  he  is  right.  The  Court  in  the  previous 
suit  decided  that  the  rights  in  the  offerings 
were  alienable  because  a  custom  prevailed 
sanctioning  such  practice,  and  the  origin 
of  the  custom  lay  in  certain  instances  of 
alienation  which  were  held  to  have  occur- 
red. According  to  s  5  of  the  Punjab  Laws 
Act  in  questions  regarding  any  religious 
usage  or  institution  the  first  rule  of  deci- 
sion must  be  any  custom  applicable  to 
the  parties  concerned,  and  thus  the  former 
decision  was  that  by  reason  of  the  existence 
of  a  custom  the  alienation  then  in  question 
and  now  in  question  was  legal*  The  quea* 


770 


AYYARU  PILLAI  V   VARADARAJA  PILLAI, 


[9210.19261 


tion  of  the  existence  of  a  custom  or  at 
any  rate  of  this  particular  custom  is,  in  my 
view,  a  mixed  question  of  law  and  fact, 
because  the  instances  which  are  the  basis 
hf  the  finding  are  undoubted  facts.  There- 
fore, I  come  to  a  contrary  decision  to  that 
of  the  Court  which  decided  the  case  of 
1912. 

On  the  question  of  the  alienability  of  the 
rights  to  the  offerings  would  involve  dis- 
turbance of  a  finding  of  mixed  law  and 
fact  and  indeed  principally  of  fact,  namely, 
the  existence  of  a  particular  custom  applic- 
able to  this  particular  religious  institution. 

The  decision,  therefore,  of  the  lower 
Appellate  Court  was  correct  and  the  appeal 
must  fail.  It  is  dismissed  with  costs. 

N.  H,  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  1124  OF  1923. 

September  30,  1^25, 

Present : — Mr.  Justice  Devadoss. 

AYYARU  PILLAI- DEFENDANT  No.  1— 

PETITIONER 

versus 

VARADARAJA  PILLAI  AMD  ANOTHER— 

RESPONDENTS. 

Limitation  Act  (IX  of  1008),  Sch.I,Ait  182  (5)— 
Step-in-aid  of  execution— Assignee  decree-holder — Re- 
cognition of  assignment,  application  for. 

An  assignee  decree-holder  can  apply  only  to  the 
Court  which  passed  the  decree  for  being  recognised 
as  the  assignee  of  the  decree  and  he  cannot  make  an 
application  only  for  the  purpose  of  being  recognised 
as  an  assignee  decree-holder.  His  application  must  be 
one  for  execution  and,  therefore,  if  he  does  not  apply 
for  execution,  his  application  would  not  be  considered 
to  be  a  proper  application  [p.  770,  col  2  ] 

An  application  by  an  assignee  decree-holder  to  the 
Court  executing  the  decree,  stating  that  the  decree 
had  been  transferred  to  him,  and  lequesting  it  to  send 
"back  the  records  of  the  case  to  the  Court  which 
passed  the  decree  "for  the  purpose  of  further  conduct- 
ing the  suit11  is  a  step-in-aid  of  execution  within  the 
meaning  of  el.  (5)  Art.  182  of  Sch.  I  to  the  Limitation 
Act.  [ibid.] 

Krishnayyar  v,  Venkayyar,  6  M.  81,  2  Ind.  Deo, 
(N.  s.)  334  and  Manorath  Das  v.  Ambica  Kant  a  Hose. 
1  Ind.  Gas.  57;  D  C.  L.  J  443,  13  0  W  N.  533,  relied 
on. 

Petition,  under  s  25  of  Act  JX  of  1887, 
praying  the  High  Cou it  to  revise  an  order 
of  the  Court  of  the  Subordinate  Judge, 
Tanjore,  dated  the  15th  September  1923,  in 
E.  P.  No.  356  uf  1*23  in  8.  0.  No.  493  of 
1911). 

Mr,  Ramasicami  Iyer,  for  the  Peti- 
tioner. 


Mr.  K.  JR.  Rangaswami  lyengar,  for  the 
Respondents. 

JUDGMENT.— This  is  a  petition  to 
revise  the  order  of  the  Subordinate  Judge 
of  Tanjore  recognising  the  assignment  of 
the  decree  in  favour  of  the  petitioner  in  the 
lower  Court.  The  contention  of  Mr.  Rama- 
swami  Iyer  for  the  petitioner  is  that  it  was 
not  competent  for  the  assignee  decree-holder 
to  make  the  application  he  did  to  the  Court 
executing  the  decree  The  decree  was 
passed  on  12th  April  1915  by  the  Sub- 
ordinate Judge's  Courl,  Tanjore.  It  was 
transferred  for  execution  to  the  District 
Munsif  s  Court  of  Tanjore  by  an  application, 
dated  18th  July  1916.  The  assignee  decree- 
holder  applied  to  the  District  Munsifa 
Court  on  10th  February  1920  for  the  issue 
of  notice  to  the  defendant  under  O.  XXI, 
r.  22,  and  asked  "that  the  records  may  be 
transferred  along  with  a  certificate  to  the 
Subordinate  Judge's  Court,  Tanjore  for 
the  purpose  of  further  conducting  the  suit'1. 
In  it  he  also  stated  that  the  decree  had 
been  transferred  to  him  by  assignment. 
The  question  is,  whether  this  is  an  applica- 
tion which  it  is  competent  for  the  assignee 
decree- holder  to  make.  If  he  was  compe- 
tent to  make  the  application  it  would  be  a 
step-in-aid  of  execution  under  Art.  182  (5) 
of  the  Limitation  Act.  It  is  well- settled  that 
an  assignee  decree-holder  can  apply  only 
to  the  Court  which  passed  the  decree  for 
being  recognised  as  the  assignee  of  the 
decree  and  it  is  also  settled  that  he  cannot 
make  an  application  only  for  the  purpose  of 
being  recognised  as  an  assignee  decree- 
holder.  His  application  must  be  one  for 
execution  and,  therefore,  if  he  does  not 
apply  for  execution,  his  application  would 
not  be  considered  to  be  a  proper  application. 
In  this  case,  he  asked  that  the  records  be 
sent  to  the  other  Court  for  the  further  con- 
duct of  what  he  calls  a  suit  and  1  suppose 
he  meant  by  it  for  the  execution  of  the 
decree.  It  has  been  held  in  Krishnayyar  v. 
Venkayyar  (1)  that  if  a  decree-holder 
applies  to  the  Executing  Court  to  send  the 
records  to  the  Court  which  passed  the 
decree,  that  application  is  a  step-in-aid  of 
execution  and  saves  limitation.  Whether  a 
transferee  decree-holder  can  make  a  similar 
application  is  the  question.  In  order  that 
his  claim  as  assignee  decree-holder  may  be 
recognised,  it  is  necessary  that  the  papera 
should  be  sent  back  to  the  Court  which 

(1)  6  M,  81;  2  lad,  Dec,  (N,  *,)  334, 


[921.0,1926] 

>assed  the  decree.  It  is  admitted  that  the 
issignee  decree-holder  was  subsequently 
•ecognised  to  have  got  a  proper  assignment 
>f  the  decree  by  the  Subordinate  Judge's 
Dourfe,  Tanjore  which  passed  the  decree 
[n  order  to  get  that  relief,  his  application 
bo  the  Executing  Court  to  send  back  the 
papers  to  that  Oourt  is  a  competent  one. 
I  think,  in  order  to  enable  the  Court  which 
passed  the  decree  to  recognise  him  as  the 
assignee  decree-holder,  it  was  necessary  for 
that  Court  to  have  the  records  sent  up  by 
the  Executing  Court  and  an  application  for 
that  purpose,  I  think,  comes  within  the 
expression  of  "step-in-aid  of  execution". 
In  this  case,  the  application  was  not  by  the 
assignee  decree-holder  for  execution  to  the 
Executing  Court  which  no  doubt  he  was 
incompetent  to  make  till  his  assignment 
was  recognised.  But  in  order  that  the 
Court  which  passed  the  decree  may  pass 
an  order  under  0.  XXI,  r.  16,  it  was  neces- 
sary though  it  might  not  be  so  in  every 
case,  at  least  in  this  case,  that  the  papers 
should  have  been  sent  back.  I  hold,  there- 
fore, that  this  application  was  a  proper  one 
which  the  assignee  decree-holder  was  com- 
petent to  make  in  this  connection,  1  would 
like  to  refer  to  the  case  reported  as  Mano- 
rath  Das  v  Ambica  Kanta  Bose  (2).  In  that 
case  an  application  which  was  made  by  a 
person  who  got  a  title  to  a  decree  by  opera- 
tion of  law  and  who  made  an  application 
before  the  Court  which  passed  the  decree 
recognised  him  as  being  entitled  to  execute 
the  decree,  was  a  proper  application.  In 
this  view  of  the  case  I  think  the  order  of 
the  lower  Court  is  correct  and  this  petition 
is  dismissed  with  costs, 
v.  N.  v.  Petition  dismissed. 

N.  H. 
(2)  1  Ind.  Gas.  57;  9  0  L.  J,  443,  13  0.  W.  N.  533, 


RANGOON  HIGH  COURT. 

SPECIAL  FIRST  CIVIL  APPEAL  No,  207  OF  1924 

AND 
CIVIL  RBVCSION  No,  249  OP  1924. 

May  19,  1925, 
Present:— Mr  Justice  Rutledge  and 

Mr.  Justice  Heald. 
J.  A.  SAVARE3E—  DEFENDANT— APPELLANT 

versus 

THE  Wakf  ESTATR  OF  ISMAIL  AHMAD 
MADA — PLAINTIFF— RESPONDBMT, 

Rent   Act  (11  of  1020),  s,  W— Bnfcance- 


WAKP  BSTATB  OF  ISMAIL  AfcMAD  MADA.  911 

went  of  rent—Consent  of  tenant,  effect  of — Illegal 
excess  recovered  by  landlord — Set-off \  tenant  whether 
entitled  to 

Neither  acquiescence  nor  consent  on  the  tenant's 
part  can  entitle  the  landlord  to  make  an  enhancement 
of  rent  in  contravention  of  the  provisions  of  the 
Rangoon.  Rent  Act 

Where  a  landlord  has  recovered  rent  in  excess  of 
the  rent  legally  payable  under  the  Act,  the  tenant  is 
entitled  to  set  off  the  amount  so  recovered  by  the 
landlord  as  against  the  rent  which  accrues  due 
subsequently, 

Special  first  appeal  against  the  decrees  of 
the  Rangoon  Small  Cause  Court,  in  C.  R. 
Nos.  524(5  and  4957  of  1924. 
Mr.  J.  C,  Kay,  for  the  Appellant. 
Mr.  Rahman,  for  the  Respondent. 

JUDGMENT*— In  the  first  of  these 
cases  the  defendant-appellant  appeals 
from  a  decree  of  the  Small  Cause  Court 
and  in  the  second  petition  by  way  of 
revision  againbt  a  decree  of  the  same 
Court  ejecting  him  from  rooms  E  and  L 
of  No  31,  Lewis  Street,  Rangoon,  on  the 
ground  that  the  defendant  was  not  ready 
and  willing  to  pay  rent  to  the  full  extent 
allowable  by  the  Rangoon  Rent  Act. 

The  case  has  not  been  satisfactorily  tried 
and  the  then  learned  Judge  seems  to  have 
overlooked  very  important  provisions  of  the 
Rent  Act  In"  his  judgment  he  remarks 
that  "the  plaintiff's  conduct  was  .rather 
reprehensible  in  that  he  had  enhanced 
the  rent  frequently  and  by  leaps  and 
bounds/1  But  the  law  is  on  the  plaintiff's 
side. 

It  seems  that  the  defendant  has  been  a 
tenant  of  the  piemises  for  11  years  and 
from  the  Rent  Controller's  finding  the  rent 
of  room  E  on  1st  April  1918,  was  Rs.  45 
a  month  and  room  L  was  Rs,  60.  The 
plaintiff  purchased  the  budding  in  which 
these  two  rooms  are,  in  March  1922,  and  at 
the  time  he  admits  that  the  rent  of  room 
E  was  Rs.  50.  By  January  1923,  heincreafr* 
ed  the  rent  to  Rs.  70  and  by  July  1923,  to 
Rs.  100.  In  January  1923,  he  increased  the 
rent  of  room  L  from  Rs.  50  to  Ra.  70.  He 
pleads  that  the  tenant  consented  to  these 
increases.  We  dare  say  he  may  have  done 
so  under  threat  of  eviction.  But  it  is  clear 
that  neither  acquiescence  nor  consent  on 
the  tenant's  part  can  make  the  landlord's 
action  legal.  The  only  rent  allowable  to 
the  landlord  was  Rs.  45  for  room  E  and 
Rs.  50  for  room  L  until  he  got  the  Rent 
Controller  to  fix  a  different  rent  It  is  clear 
that  he  never  went  to  the  Rent  Controller 
And  wnen  the  tenants,  in  February  1923, 
petitioned  the  Controller,  the  landlord  took 


772 


SHlB  NAftAtN  V.  OAJADHAB. 


eviction  proceedings  against  the  leader,  one 
Petit,  with  the  result  that  several  of  the 
others,  including  the  present  appellant, 
signed  petitions  consenting  to  the  increas- 
ed illegal  rents  and  asked  that  their  peti- 
tions for  fixing  standard  rents  be  with- 
drawn. None  of  these  proceedings  seem  to 
have  put  the  then  Small  Cause  Court  on 
enquiry,  and  he  assumed  that  there  was  a 
free  consent  on  the  part  of  the  tenants.  For 
one  reason  or  another  the  cases  dragged 
on  before  the  Rent  Controller  from  3rd 
February  1923,  till  5th  September  1924, 
over  18  months,  when  he  fixed  the  rent 
of  room  E  at  Rs.  56-4-0  and  room  L  at 
Rs.  50. 

The  defendant's  case  is  that  he  was  ready 
and  willing  to  pay  the  rent  allowable  by 
the  Act  and  that  he  has  stopped  payment 
because  the  amount  illegally  obtained  by 
the  landlord  he  was  entitled  to  set  oft 
against  the  accruing  rent.  Section  13  un- 
doubtedly gives  him  this  right  subject  to 
the  conditions  therein  expressed.  The 
Court  below  ought  to  have  gone  into  this 
question  and  decided  whether  there  was 
still  a  balance  due  after  deduction  of  the 
amount  for  which  defendant  was  entitled 
to  credit.  The  materials  before  us  are  not 
sufficiently  ample  to  allow  this  to  be  done 
now.  Nor,  in  our  opinion,  is  it  necessary. 
The  landlord's  behaviour  in  increasing  the 
rent  and  in  trying  to  prevent  the  tenants 
from  availing  themselves  of  the  redress 
which  the  law  gives  them  is  extortionate 
and  reprehensible  to  the  last  degree. 

Taking  all  the  facts  into  consideration 
we  hold  the  appellant-petitioner  was  ready 
and  willing  to  pay  rent  to  the  full  extent 
allowable  by  the  Rangoon  Rent  Act  ard 
had  not  lost  the  protection  of  that  Act. 
The  judgment  and  decrees  of  the  Small 
Cause  Court  are  set  aside  and  the  plaintiff- 
respondent's  suits  are  dismissed  with  costs 
in  both  Courts.  Advocate's  fees  in  this 
Court,  five  gold  mohurs. 

55,  K.  Appeal  and  revision  allowed. 


[92 1.  0. 1926] 

ALLAHABAD  HIGH  COURT. 

SECOND  CIVJL  APPEAL  No.  826  OF    1923 

CONNECTED  WITH 
SECOND  CIVIL  APPEAL  No.  825  OF  1923. 

JuneS,  1925. 

Present:— Mr.  Justice  Boys  and 
Mr.  Justice  Banerji. 

December  1,  1925. 
Present:— Mr.  Justice  Boys  and 

Mr.  Justice  Dalai. 

Chaudhitri  SHIB  NARAIN— 

•—PLAINTIFF— APPELLANT 

versus 

GAJADHAR  AND  OTHBRS — DEFENDANTS 
— RESPONDENTS. 

Mortgage — Prior  and  subsequent  mortgages — JBe- 
demptwn  —  Interest,  whether  must  be  paid  along  with 
principal— "Glrwi"  whether  means  usufructuary 
mortgage 

The  meaning  of  the  word  "girwi"  is  not  restricted 
to  a  usufi actuary  mortgage  [p  773,  col.  2  ] 

A  deed  of  second  mortgage  recited  the  first  mort- 
gage and  declared  that  the  mortgagor  should  not  be 
entitled  to  icdeeni  the  first  mortgage  without  dis- 
charging the  second  loan  also 

Held,  that  the  second  mortgage  was  in  the  nature 
of  an  additional  mortgage  hypothecating  the  pro- 
perty and  that  the  mortgagor  was  not  entitled  to 
redeem  the  first  moitgage  without  at  the  same  time 
discharging  the  second,  [p,  774,  col.  2.] 

A  deed  of  second  mortgage  recited  the  amount 
borrowed  and  the  rate  of  mteiest  and  then  stated  that 
"this  money"  shall  be  paid  when  the  amount  due  on 
the  pnoi  mortgage  is  paid  and  the  prior  mortgage  is 
ledecmed  There  was  no  stipulation  that  the  interest 
was  to  be  added  to  the  principal,  and  permission 
was  granted  to  the  mortgagee  to  sue  for  interest 
separately. 

Held,  (1)  that  the  expression  "this  money1'  in  the 
deed  included  the  puncipal  money  together  with 
interest,  [P  775,  col  2] 

(2)  that  the  permission  granted  to  the  mortgagee 
to  sue  for  interest  separately  was  an  additional  pri- 
vilege granted  to  the  mortgagee  and  that  he  was  not 
bound  to  sue  separately  for  interest;  [ibid  ] 

(3;  that  the  mortgagor  was,  therefore,  bound  to  pay 
the  entire  amount  of  inteiest  to  the  mortgagee  at  the 
time  of  redemption.  [ibid.\ 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Agra,  dated  the  15th  February 
1923. 

Messrs.  Braj  Nath  Vyas  and  Baleshwari 
Prasad,  for  the  Appellant. 

Messrs.  U.  S.  Bajpai  and  N.  P.  Asthantf, 
for  the  Respondents, 

JUDGMENT. 

Boys  and  Banerji,  JJ.-— (June  5, 
1925).— This  is  a  plaintiffs  appeal.  The 
suit  was  by  one  Shib  Narain,  who  had 
purchased  the  rights  of  the  mortgagor,  for 
redemption  of  a  usufructuary  mortgage 
dated  the  21st  of  May  1864  made  by  Gpvind 
Prasad  in  favour  of  Ohaudhri  Behari  Lai, 

This  mortgage  was  for  a  sum  of  Rs.  500 


[92  I.  0.  1926]  SHIB 

and  was  admittedly  a  usufructuary  mort- 
gage. 

It  had  been  followed  by  a  second  mortgage 
on  August  Uth  1364  for  Rs.  200  in  favour 
of  the  same  mortgagee.  It  recited  the 
first  mortgage  for  Rs,  500  and  further  de- 
clared that  the  mortgagor  should  not  be 
entitled  to  redeem  without  discharging  the 
second  loan  also. 

This  was  again  followed  by  a  third  mort- 
gage on  June  1st,  18G7,  in  favour  of  the 
same  mortgagee.  It  recited  the  prior  total 
debt  of  Ea.  700;  it  referred  to  a  subsequent 
"  mashryt  id  rahn  "  document  for  Rs.  2(JO 
which  was  being  taken  back  (and  with 
which  we  are  no  further  concerned)  and 
then  said  that  Rs  99  was  being  taken  in 
cash  and  for  this  total  Rs.  299  the  mort- 
gagor was  executing  this  fresh  mashrut  ul- 
rahrt  (the  deed  itself  contains  this  descrip- 
tion) document ,  and  it  was  further  declared 
that  the  executant  would  pay  this  Rs.  299 
first  before  discharging  the' earlier  debt, 
and  would  pay  up  all  interest  before  taking 
possession. 

These  three  mortgages  we  will  refer  to 
hereafter  as  the  first,  second  and  third 
mortgages. 

On  the  23rd  of  August  1*80  an  agreement 
was  signed  between  one  Baldeo,  the  father  of 
&ajadhar,thepriacipaldefendaat-respondent 
in  this  case,  and  Chaudhii  Behan  Lai,  the 
mortgagee  above  named,  m  which  Chaudhri 
Behari  Lilissaid  to  have  iccognised  Baldeo 
as  half  owner  in  at  any  rate  the  fiist  mort- 
gage, and  one  of  the  questions  we  have  to 
decide  is  whether  this  agreement  recognis- 
ed him  as  half  owner  oi:  the  second  and 
third  mortgages  also 

On  the  6th  of  December  1914  the  heirs 
of  Govind  Prasad,  the  mortgagor,  sold  the 
equity  of  redemption  to  Shib  Narain,  the 

S resent  plaintiff,  who  is  the  son  of  the 
eceased  Chaudhri  Behari  Lai  the  mort- 
gagee. The  result  of  this  transaction  was 
that  Shib  Narain  became  the  sole  owner  of 
half  the  property,  and  owner  of  the  equity 
of  redemption  in  regard  to  Baldeo's  half. 

On  the  5th  of  December  1919  Shib  Narain 
filed  this  suit  for  redemption,  in  respect 
of  the  first  mortgage,  of  the  half  mortgaged 
to  Baldeo  He  allege!  that  he  had  de- 
posited certain  monies  under  s.  8,i  of  the 
Transfer  of  Property  Act;  that  the  defend- 
a^it  refused  to  withdraw  the  amount ;  and 
that  now,  on  the  other  haud,  there  was  due 
t&;  him,  Shib  Narain, . a  sum  of  R<*.  650, 
The  defence  was  that" the  defendant  Qaja- 


V.  QAJADHA&, 


773 


dhar,  son  of  Baldeo,  now  deceased,  was  also 
entitled  to  a  half  share  in  the  second  and 
third  mortgages,  and  further  that  the  first 
mortgage  could  not  be  redeemed  without 
prior  or  at  least  simultaneous  discharge  of 
the  second  and  third.  Both  points  were 
decided  against  the  plaintiff  by  both  Courts 
and  the  suit  was  dismissed  in  toto. 

Three  points  arise  for  determination  in 
this  case. 

First,  whether  the  defendant  Gajadhar, 
son  of  Baldeo,  is  entitled  under  the  agree- 
ment of  the  23rd  of  August  1880  to  a  half 
share  only  in  the  first  mortgage,  or  also 
to  a  half  share  in  the  second  and  third  mort- 
gages. 

The  second  question  is,  whether  the  de- 
fendant could  insist  upon  the  discharge 
of  the  second  and  third  mortgages  at  the 
same  time  as  the  redemption  of  the  first  usu- 
fructuary mortgage. 

The  third  question  is,  if  it  be  held  that 
the  plaintiff  could  only  obtain  redemption 
of  the  first  mortgage  on  condition  that  he 
also  discharged  the  second  and  third,  could 
he  now  be  given  a  decree  in  respect  of  all 
three  mortgages  when  he  thad  only  asked 
for  redemption  in  regard  to  the  first. 

We  will  consider  first  the   agreement  of 
1880.    That  contains  the  words  :—"Girwi  ki 
70  bighas  4  biswas'\  and  later  the  words  : — 
Hamaro  tumharo  jo  hissa  brabar  ka  hai".  It 
is  urged  for  the  appellant    that  the  word 
"  girwi"    indicates   that  this  acknowledg- 
ment of  equal  shares  could  refer  only  to 
mortgages  of  the  nature  of  a  usufructuary 
mortgage  and  could  not  refer  to  the  second 
and  third  mortgages     We  see  no  justifica- 
tion for  this  restriction  of  the  term,  but 
we  may  add  that  even  if  that  were  a  justi- 
fiable interpretation  of  the    word,  there  is 
authority  in  the  judgment  of  Mr.   Justice 
Banerji  in  Har   Pershad  v.  Ram  Chander 
(1),    for  holding    that     even     the   second 
and    third    mortgages  in    this    case    may 
be     regarded    as  usufructuary  mortgages. 
It  is  not,  however,  necesaary  to  press  that, 
for,  as  we  have  said,  there    is    nothing  in 
the  word  "  girwi",  so  far  as  we  are  aware, 
to  restrict  it  to  a  usufructuary  mortgage. 
On  the  other  hand  we  think  that  the  words 
"  girwi  ki  "  were  here  only  used  as  descrip- 
tive of  all  the    mortgagee    rights    of  the 
parties  in  the  property  specified  as  distingu- 
ished from    their  vendee  rights  in  other 
property  referred    to    as    *4  bainamah  ki* 

(1)  63  Ind  Oas  750,  41  A,  37,  19  A  L.  J.  807,  3  I). 
P.  L.  R,  (A,)  139j  A.  L  R.  1922  All  174  (F.  B.) 


774 


SHIB  NARAIM  V.  GAJADHAR. 


Further  for  the  appellant  reliance  was  placed 
on  an  admission  said  to  have  been  made  by 
the  defendant  Gajadhar  in  cross  examina- 
tion, that  his  right  to  possession  was  only 
based  on  the  first  usufructuary  mortgage- 
deed.  This  would  clearly  not  be  sufficient 
to  preclude  him  from  maintaining  that 
the  three  mortgages  were  really  one.  It  is 
obvious  that  in  one  sense  his  claim  for 
possession  would  be  based  on  his  first  usu- 
fructuary mortgage.  The  statement  was, 
moreover,  brought  out  in  cross-examination, 
but  in  examination- in- chief  he  had  already 
definitely  asserted  his  claim  to  be  based  on 
all  the  three  mortgages  We  hold,  there- 
fore, that  the  defendant  had  in  fact  a  half 
share  in  all  three  of  the  mortgages,  and  we 
decide  this  question  against  the  appellant. 

The  second  question  is,  can  the  defend- 
ant compel  simultaneous  redemption  of 
the  second  and  third  mortgages  The 
plaintiff-appellant  claims  that  he  cannot. 
It  is  urged  for  him  that  he  need  not  re- 
deem simultaneously  the  later  mortgages, 
unless  they  "  consolidated  the  old  and  the 
new  transactions/1  It  would  seem  that  of 
this  class  of  case  theie  may  be  three  types : — 
Where  it  is  suggested  (1)  that  the  first 
mortgage  cannot  be  redeemed  unless  the 
second  mortgage  is  first  or  simultaneously 
redeemed  ;  (2)  that  the  second  mortgage 
cannot  be  redeemed  unless  the  first  mort- 
gage is  first  or  simultaneously  redeemed, 
and  (3)  that  neither  the  first  nor  the  second 
can  be  redeemed  separately.  The  present 
case  is  alleged  by  the  defendant  to  be  of 
the  first  type,  with  this  addition  that  there 
is  a  third  mortgage  which  bears  to  the  first 
two  the  same  relation  that  the  second  bears 
to  the  first, 

We  will  consider  first  whether  the  first 
mortgage  can  be  redeemed  without  redeem- 
ing the  second. 

We  have  set  out  at  the  commencement 
of  this  judgment  the  terms  of  the  deeds 
sufficiently  for  the  present  purpose. 

In  support  of  his  claim  to  redeem  the  first 
mortgage  alone,  the  appellant  relies  on 
Bhartu  v.  Dalip  (2)  and  Kesar  Kunwar  v. 
Kashi  Ram  (3).  In  Bhartu  v.  Dalip  (2), 
it  is  clear  that  the  restrictive  agreement 
embodied  in  the  later  mortgage  was  mis- 
read and  the  effect  of  the  particular  decision 
was  explained  away  in  the  later  decision  by 
the  same  learned  Judge  in  Brij  Lai  Singh 

(2)  3  A.  L,  J.  675  A.  W.'N.  (IfiOfi)  £78. 

(3)  30  Jad,  Gas.  777;  37  A,  634;   13  A.  L.  J.  889. 


[92  L  0.  1926J 

v.  Bhawani  Singh,  (4)  which  we  shall 
notice  later  when  considering  the  cases 
that  support  the  respondent.  The  other 
case  reported  as  Kesar  Kunwar  v.  Kashi 
Ram  (3)  relied  on  for  the  appellant  helps 
him  no  more  In  that  case  it  was  only 
held  that  (assuming  that,  if  th§  second  mort- 
gage was  not  time- barred,  the  defence  would 
be  a  good  one  that  it  must  be  paid  off  before 
redeeming  the  first  mortgage)  where  there 
was  a  provision  that  the  first  mortgage 
should  not  be  redeemed  without  paying  off 
the  second,  and  the  second  was  in  fact  bar- 
red by  limitation,  the^Court  could  not  possib- 
ly allow  the  defendant  to  rely  on  the  con- 
dition as  to  first  discharging  the  second 
mortgage  and  so  in  fact  enable  him  to  se- 
cure payment  of  a  debt  which  he  had  allow- 
ed to  become  time-barred. 

For  the  defendant-respondent  reliance 
was  placed  on  Ranjit  Khan  v.  Ramdhan 
Singh  (5),  Brij  Lai  Singh  v.  Bhawani  Singh 
(4)  and  Ear  Pershad  v.  Ram  Chander  (1), 
We  are  perfectly  satisfied  that  on  the 
terms  of  the  second  mortgage  it  is 
governed  by  the  principles  laid  down  in  the 
three  cases  that  we  have  quoted;  that  it  is 
in  the  nature  of  an  additional  mortgage 
hypothecating  the  property,  and  that  on 
the  principles  laid  down  in  those  three 
cases  the  plaintiff  mortgagor  was  not  entitl- 
ed to  redeem  the  first  mortgage  without 
at  the  same  time  discharging  the  second. 

The  case  of  the  third  mortgage  is  even 
more  clear.  In  that  the  expression  "mash- 
rut  ul-rahn"  specifically  occurs,  and  as 
regards  this  mortgage  Counsel  for  the 
appellant  has  not  found  it  possible  to  re- 
sist seriously  the  contention  of  the  defend- 
ant that  this  third  mortgage  must  be  dis- 
charged before  or  simultaneously  with  re- 
demption of  the  first. 

As  to  the  third  question  it  has  similarly 
not  seriously  been  contended  that  the  plaint- 
iff could  obtain  redemption  of  the  first 
mortgage  and  discharge  the  second  andl 
third  on  his  prayer  as  at  present  framed,  in 
which  the  relief  asked  for  has  only  referred 
to  the  first  mortgage.  But  it  is  urged  on 
his  behalf  that  we  should  allow  him  now 
even  at  this  stage  to  amend  his  plaint,  and 
remand  the  case  to  the  lower  Court  for  fo- 
terrnination  of  the  question  as  to  how  mucli 
H  due  on  all  three  mortgages  together.  This 
course  was  permitted  in  Brji  Lai  Singh  v* 
Rhawani  Singh  (4)  though  it  appears  not  td 

(4)  7  Tnd   Caa  115;  32  A.  651;  7  A.  L.  J.  821. 

(5)  2  Ind.  Caa,  859;  31  A   482;  6  A,  L.  J.  654, 


193  I.  0.  1920, 


&A  SHEWE  U  «;.  iiA  S1UN, 


773 


have  been  followed  in  the  earlier  case  re- 
ported as  Kan  jit  Khan  v.  tiamdhan  Singh 
(5). 

We  think  that  such  a  prayer  should  not 
be  too  readily  granted;  that  in  view  of  the 
decisions  to  which  we  have  referred  the  law 
as  interpreted  by  this  Court    afc  any  rate 
should  be  well  enough  known.    In  the  pre- 
sent case,  however,  we  are  prepared  to  accede 
to  the  prayer.    We  have,    therefore,  given 
the   appellant    permission   to   amend  the 
plaint  so  as  to  ask  for  relief  as  regards  the 
second  and  third  mortgages  also,  and,  that 
amendment  having  been  made,  we   remand 
this  case  to  the    Court   of  first   instance 
through  the  lower  Appellate  Court  under  (X 
XLI,  r.  25  with  directions  to  take  such   fur- 
ther evidence  as  may  be  necessary,  and  to 
determine  the  amount  that  may  be  due  by 
the  plaintiff  to  the  defendant  on  foot   of  all 
three  mortgages.    On  return  of  the  finding 
the  usual  ten  days  will  be  allowed  for  filing 
objections. 

On  receipt  of  the  finding  Dalai  and  Boys, 
JJ.,  on  December  1, 1925,  delivered  the  fol- 
lowing 

JUDGMENT.— This  suit  was  re- 
manded by  this  Bench  under  O.  XLI,  r, 
25  of  the  C.  P.  C  to  permit  the  plaint- 
iff-appellant to  amend  his  plaint  and 
include  the  other  mortgages  therein,  This 
was  done  and  the  lower  Appellate  Court 
has  decided  that  Ri.  4,913  ^is  due  by 
the  plaintiff  for  the  purpose  of  redemption 
of  all  the  three  mortgages.  The  plaintiff 
is  owner  of  half  the  mortgagee  rights  and 
he  has  sued  for  the  redemption  of  only  half 
of  the  property.  The  amount,  therefore, 
which  he  will  have  to  pay  will  be  half  of 
Rs.  4,913. 

The  other  objection  to  the  finding  of  the 
lower  Appellate  Court  relates  to  the  amount 
of  interest  payable  on  the  bond  of  14th 
August  1864.  Interest  is  calculated  on  that 
amount  at  the  simple  rate  of  Rs.  1-40  per 
cent,  per  mensem  from  the  date  of  the  bond, 
14th  August  1864  up  to  the  date  on  which 
the  lower  Court  prepared  the  account  that 
is  21st  of  July  1925  The  amount  of  in- 
terest comes  to  Rs.  1,828  It  is  argued  here 
on  behalf  of  the  plaintiff  appellant  that  in- 
terest would  be  recoverable  by  the  defend- 
ants only  for  12  years,  that  is,  Rs  360. 
The  bond  contains  a  stipulation  that  the 
mortgagee  may  sue  for  the  interest  due  on 
$hia  bond  separately.  On  this  ground  the 
plaintiff's  case  i$  that  the  auit  for  interest 


for  a  period  of  more  than  12  years  is  time- 
barred.    We  have  read  the  terms  of  the 
bond  and  do  not  accept  this  contention. 
In  the  bond  the  amount  borrowed  is  stated 
and  then  the  rate  of  interest  and  it  is  stated 
after  this  that  the  money  shall  be  paid  wh&n 
the  amount  due  on  the   prior   mortgage   id 
paid  and  the  prior  mortgage   is   redeemed* 
The  words  used  areyihrupiya,  this  money  < 
According  to   the  plaintiff's  Counsel  this 
term  denotes  only  the  principal  amount  and 
not  the  interest  because  as  pointed    out  by 
him  there  is  no  stipulation  that  the  interest 
was  to  be  added    to  the  principal   Finally, 
there  is  the  permission  granted  to  the  mort- 
gagee to  sue  for  interest  separately.    We  are 
of  opinion  that  this  is  an  additional  privi- 
lege granted  to  the  mortgagee  and  he  was 
not  bound  to  sue  separately  for  interest.    If 
he  was  satisfied  with  the  security  and  per- 
mitted the  interest,  to  accumulate  there  was 
no  bar  to  that  procedure  according  to  the 
terms  of  the  bond     In  ordinary  acceptance 
of  the  term  "this  money11  would  include  the 
principal  amount  together  with    interest. 
We  disallow  objection  No  1, 

In  the  result  we  decree  the  plaintiff's  suit 
for  redemption  on  payment  of  Rs.  2,456*8-0. 
A  preliminary  decree  for  redemption  shall 
be  prepared  under  0  XXXIV,  r  7  of  the  C. 
P.  C  Interest  shall  run  at  bond  rates  on  the 
two  bonds  of  1864  from  the  2lst  of  July  1925 
up  to  six  months  from  to-day's  date  On 
non  payment  of  the  money  within  the  time 
specified  the  usual  result  shall  follow.  The 
mortgagee-respondents  shall  receive  their 
coats  of  all  the  Courts-costs  according  to  the 
valuation  of  the  property  including  fees  here 
on  the  higher  scale, 
z  K.  Appeal  accepted,. 


RANGOON  HIGH  COURT, 

CIVIL  REVISION  No  224  OP  1924. 

June  18,  1925. 

Present: — Mr.  Justice  Das. 

MA  SHBWE  U— APPLICANT 

versus 

MA  SHIN  AND  OTHERS—  RESPONDENTS. 

G\M  Procedure  Code  (Act  V  of  1908),  s  J/.5— Limi- 
tation Act  (IX  of  1908),  3  6- Application  ditmiss&d 
as  barred  by  time— Benefit  of  minority  ignored  —Revi- 
sion, 

Petitioner's  application  for  leave  to  sue  in  forma 
pauperis  was  rejected  on  the  ground  that  the  suit 
was  barred  by  time,  but  m  arriving  at  this  conclusion 
that  Court  overlooked  the  provisions  of  s  6  of  the 
Limitation  Act  to  the  bsn^lit  of  which  the  petitioner 
was  entitled; 


Held,  that  the  order  rejecting  the  petitioner's  appli- 
cation was  liable  to  be  wet  aside  in  revision 

.  Civil  revision  from  an  order  of  the  Sub- 
Divisional  Couit,  Thaton,  in  C.  M,  No.  5  of 
1924. 

Mr.  Hla  Pe,  for  the  Applicant. 

Mr.  Auzam,  for  the  Respondent. 
t  JUDGMENT.— In  this  case  petitioner 
had  applied  for  leave  to  sue  as  a  pauper  in 
the  Court  of  the  Sub-Divisional  Judge  of 
Thaton.  Her  suit  was  based  on  a  claim  to 
a  share  of  inheritance  left  by  her  parents. 
The  defendants  in  that  suit  admitted  that 
the  petitioner  was  a  pauper  but  contested 
her  right  to  sue  as  a  pauper  on  the  ground 
that  her  claim  was  barred  by  limitation. 
The  lower  Court  dismissad  the  application 
on  the  ground  that  the  petitioner's  claim 
was  barred  by  limitation.  The  lower  Court 
entirely  overlooked  the  provisions  of  e.  6 
(1)  of  the  Limitation  Act.  Amittedly  the 
petitioner  was  a  minor  when  her  cause  of 
action  arose  and  she  came  of  age  less 
than  12  years  before  the  filing  of  the  suit. 
Section  6  (1)  of  the  Limitation  Act  clearly 
applies  in  her  case  and  her  suit  is  within 
time. 

The  order  of  the  lower  Court  is  set  aside, 
and  the  petitioner  is  granted  leave  to  sue 
as  a  pauper. 

z-  &.  Petition  allowed. 


THIRUMALACHAIUAR  V.  ATHIMOOLA  KARAYALOR,  [92  L  0.  1926] 

ly  in  possession  of  the  assets  of  a  deceased  person, 


MADRAS  HIGH  COURT, 

Civil  REVISION  PETITION  No.  539  OF  1924 

April  28,  1925. 

Present ;— Mr.  Justice  Odgers. 

V.  TIRUMALACHARIAR— PLAINTIFF- 

PETITIONER 

versus 

ATHIMOOLA  KARAYALOR  AND  OTHERS- 
DEFENDANTS  Nos.  2  TO  6  AND  1  TO  7— 
RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s  115,  0.  IX, 
r.  13— Ex  parte  decree,  application  to  set  aside- 
Engagement  of  Pleader  in  other  Court,  whether  suffi- 
cient cause— Discretion  of  Court— Revision— Decree 
against  several  defendants  having  separate  interests— 
Application  by  some  to  set  aside  decree— Procedure 

It  is  not  an  invariable  rule  that  the  absence  of  a 
Pleader  owing  to  his  engagement  elsewhere  is  a 
sufficient  cause  for  setting  aside  an  ea,  parte  decree, 
but  the  High  Court  will  not  in  revision  interfere  with 
the  discretion  of  the  Court  of  first  instance  in  setting 
asid* »  an  ex  parte  decree  on  that  ground  [p,  777,  col.  11 

Where  a  plaintiff  impleaded  several  persons  as 
to  a  suit  on  the  ground  that  they  were  seyeral- 


and  an  ex  parte  decree  \\as  passed  against  all  01  them, 
on  an  application  by  some  only  of  the  defendants  to 
set  aside  the  ex  parte  decree- 

field,  that  it  was  not  open  to  the  Court  to  set 
aside  the  decree  as  against  the  defendants  who  had 
not  applied  to  set  aside  the  decree,  [p.  777,  col.  2.] 

Petition,  under  s.  115  of  Act  V  of  1908, 
praying  the  High  Court  to  revise  an  order 
of  the  Court  of  the  Subordinate  Judge, 
Tinnevelly,  in  I.  A,  No.  10  of  1924,  in  0.  S. 
No.  120  of  1*21  (in  0.  8.  No.  73  of  1923  on 
the  file  of  the  Court  of  the  Second  Addi- 
tional Sub- Court,  Tinnevelly). 
^  Mr.  S.  Rajagopalachari,  for  the  Peti- 
tioner, 

Mr.  S.  Ramasami  Iyer,  for  the  Respond- 
ents. 

ORDER. — This  was  a  suit  by  the  plain  t- 
iff  against  seven  defendants.  I  understand 
that  the  suit  is  for  specific  performance  of 
a  contract  entered  into  by  the  husband  of 
the  1st  defendant  and  the  plaintiff.  The 
suit  is  also  in  the  alternative  for  the  value 
of  the  land.  The  deceased  was  one  Nambi 
Khone,  the  1st  defendant  is  his  widow,  the 
2nd  defendant  his  nephew,  3rd  defendant 
is  the  son  of  the  2nd  defendant,  defend- 
ants No.  4  to  6  are  the  sons  of  a  brother 
of  the  2nd  defendant  and  the  7th  defend- 
ant is  the  daughter  of  the  deceased.  These 
persons  are  all  said  to  have  in  their  hands 
certain  assets  of  the  deceased  Nambi  Khone 
under  some  arrangement  made  in  his  life- 
time, called  a  settlement.  The  suit  was 
called  on  for  trial  on  the  24th  October  1923 
before  the  Subordinate  Judge,  Mr  N.  8. 
Natesa  Iyer  The  defendants  No.  1  and  7 
and  defendants  Nos.  2  to  6  had  different 
Vakils  on  the  record.  When  the  case  was 
taken  up,  the  Vakil  for  the  plaintiff  was 
not  there  and  neither  of  the  Vakils  for  the 
defendants  was  there.  The  plaintiff,  how- 
ever, went  into  the  box  and  examined  him- 
self and  one  other  witness  and  an  ex  parte 
decree  was  the  result.  A  petition  was  then 
put  in  to  the  succeeding  Subordinate  Judge 
Mr.  R.  Nageswara  Iyer  on  the  7th  Feb- 
ruary 1924  by  the  defendants  Nos.  2  to  6  only 
to  set  aside  the  ex  parte  decree  and  restore 
the  suit  to  file.  The  learned  Subordinate 
Judge  was  inclined  to  believe  that  the  peti- 
tioner's Vakil  was  engaged  elsewhere  when 
the  suit  was  taken  up  and  was  of  opinion 
that  that  amounted  to  a  reasonable  cause 
for  non-appearance  of  the  petitioners  on  the 
days  in  question.  He,  therefore,  set  aside 
the  ex  parte  decree  obtained  as  against  all 
the  defendants. 


[92  1.  C.  1926J 

Two  points  have  been  argued  before  me 
ia  revision.    The  first  is  that  the  Judge 
has  no   jurisdiction  to  treat    the  absence 
of  a  practitioner  as   a  sufficient  cause  for 
not  appearing  when  the  suit  was  called  on 
for  hearing  under  0.  IX,  r.  L3  (a)  and  con- 
sequently that  even  if  the  petitioner-plaint- 
iff is  wrong  on  this  point  the  ex  parte,  decree 
ought  not  to  have  been  set  aside  as  a  whole 
but  only  with  regard  to  the  defendants  Nos  2 
to  6  who  requested  that  it  should  be  so  set 
aside,    lam  far  from  saying  that  if  I  weie 
hearing  this  case  on  the  Original  Side  1 
should  hold  as  an   invariable  rule  that  the 
absence  of  a  Pleader  is  a  sufficient  cause  for 
setting  aside  the  ex  parte  decree.    But  it 
is  a  very  different  thing  to  say    that  the 
learned  Subordinate  Judge    acted  without 
jurisdiction  or  with   material  irregularity 
in  regarding  that  as  a  sufficient  cause  for 
doing  so.    With  regard  to  the  absence  or 
presence  of  Pleaders,  the  parties    were  in 
much  the  same  boat  before  the  Subordinate 
Judge,  and  I  am  not  inclined   to  interfere 
in  revision  with  his  discretion  in  regarding 
the  absence  of  the  Pleader  of  the  defendants 
Nos.  2  to  6  as  a  sufficient  cause  for  non-ap- 
pearance. I,  therefore,  think  that  with  regard 
to  this  part  of  the  case   the  civil  revision 
petition  must  be  dismissed.  But  there  is  one 
point  where  I  think  the  Subordinate  Judge 
had  made  an  omission  with  regard  to  the  de- 
fendants Nos,  2  to  6.    The  defendants  Nos  2 
to  6  should  pay   the  plaintiff's  costs  up   to 
date  before  the  suit  is  taken  on  the  file  in 
the  Sub-Court. 

With  regard  to  defendants  Nos.  1  and 
7,  I  am  not  prepared  to  say  that  the  cause 
of  action  is  necessarily  joint  and  indivisi- 
ble as  against  them.  The  plaintiff  has,  I 
dare  say,  quite  wisely  made  defendants 
everybody  that  he  can  possibly  conceive 
would  have  any  assets  of  the  deceased 
Nambi  Khone,  and  there  is  no  doubt  that 
he  hopes  to  catch  some  of  the  assets  any 
how  in  the  hands  of  these  defendants.  I 
think  the  case  really  falls  within  the  prin- 
ciple laid  down  by  Mr.  Justice  Krishnan  in 
the  case  reported  as  Narayanaswamy  Iyer 
v,  Doraisivamy  Pathar  (1).  There  the  suit 
was  one  to  obtain  possession  of  separate 
items  of  property  from  separate  sets  of 
defendants.  1  think  really  that  is  the  case 
here  as  it  is  perfectly  plain  that  although 
the  defendants  are  related  by  blood,  they 
are,  of  course,  in  no  sense  a  joint  family 

(1)  65  Ind.  Oaa,  343;  (1921)  M.  W.  N,  795. 


MAUNQ  SAN   PWE  t>.  HAMADANEE  777 

nor  is  there  any  allegation  as  far  as  I  know 
that  they  are  living  together  or  anything 
of  the  kind  so  that  1  think  that  with  regard 
to  defendants  Nos.  1  and  7  the  learned  Sub- 
ordinate Judge  was  wrong.  They  did  not 
petition  either  in  the  lower  Court  or  here. 
The  ex  parte  decree,  therefore,  is  riot  set 
aside  as  regards  them.  The  petitioner  will 
get  his  costs  from  defendants  Nos  1  and  7 
in  this  Court. 

v.  N.  v.  Order  modified. 

z.  K. 


RANGOON  HIGH  COURT. 

SPECIAL  SECOND  CIVIL  APPEAL  No  209  OF 

1924. 

June  8,  1925 
Present-— Mr.  Justice  Rutledgeand 

Mr.  Justice  Heald. 
MAUNG  SAN  PWE  AND  ANOTHER— 
APPELLANTS 

versus 
HAMADANEE  AND  OTHERS— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s  61^— Attach- 
went— Property  sold  by  judyme nt-debtot  before  attach- 
ment—Conveyance  executed  dm  ing  attachment,  effect 

o/. 

What  is  aimed  at  in  s  64,  0  P  0 ,  is  the  transfer 
of  a  benelicial  interest,  delivery  of  property  or  any 
payment  [p  778,  col  2] 

Where  a  judgment-debtor  sells  certain    property, 
receives  the  purchase-money  and  hands  over  posses- 
sion of  the  propei  ty  to  the  purchaser  before  the  pro- 
perty ib  attached,  but   the  sale-deed  is  executed   after 
the  attachment  is  made,  the  transaction  is  not  brought 
within  the  purview  of  s  64,   C  PC,  inasmuch  as  at 
the  date  of  attachment  there  was  no  beneficial  interest 
in  the  propei  ty  left  m  the  judgment-debtor,  he  being 
at  most  possessed  of  the  bare  legal  title  which  he  was 
bound  to  convey  on  demand  to  the  purchaser     [ibid  ] 
Special  second  appeal  from  a  decree  of 
the   District  Court,  Tharrawaddy,  in  C.   A, 
No  112- A  of  1923. 
Mr.  Robertson,  for  the  Appellants. 
Mr.  Paw  Tun,  for  the  .Respondents 
JUDGMENT*— Appellants     sued    re- 
spondents for  a  declaration  that  they  weie 
owners  of  a  plot  of    paddy    land,  part  of 
holding  No,  47  of  1922-23  of    Kyakatdan 
Kwin     Their  case  was    that  that  holding 
belonged  to  one  Maung  Shan    who   mort- 
gaged it  to  the  1st  appellant's  mother,  the 
respondent  Ma    Yeik,  that  in   1917   Maung 
Shan  agreed  to  sell  seven  acres  out  of  that 
holding,  being  the  land  now  in  dispute,  to 
appellants   for  Es.  1,000,    that  appellants 
then  paid  Rs.  51)  as  part  of  the  price,  that 


MAfc'NO  SAN  PWR  1?    HAMADAfcfSB. 


at  that  time  it  was  agreed  between  Mating 
Shan,  Ma  Yeik,  and  appellants  that  the 
balance  of  the  price  should  be  payable  by 
appellants  by  yearly  instalments  and  that 
appellants  should  pay  interest  on  it,  that 
in  accordance  with  that  agreement  appel- 
lants paid  an  instalment  of  Rs  200  to  Ma 
Yeik  and  received  possession  of  the  seven- 
acre  plot,  that  since  then  he  had  been  in 
possession  of  that  plot  and  had  been  pay- 
ing revenue  on  it,  that,  thereafter,  on  the 
3rd  of  March  1918,  Maung  Shan  eold  the 
whole  holding  to  Ma  Yeik  by  registered 
deed,  that  the  mutation  of  names  was  effect- 
ed so  that  the  holding  now  stands  in  the 
name  of  Me  Yeik,  that  Ma  Yeik  agreed  to 
convey  the  seven-acre  plot  to  appellants  on 
payment  of  the  price  in  full,  that  appel- 
lants had  paid  the  price  in  full,  that  Ma 
Yeik  had  duly  executed  a  registered  con- 
veyance of  the  seven-acre  plot  in  favour 
of  appellants,  lhat  the  plot  was  according- 
ly put  into  appellants1  names,  that  there- 
after one  Po  Tu,  agent  of  the  1st  respond- 
ent, a  transferee  of  a  decree'^  against  Ma 
Yeik,  brought  the  whole  holding  to  sale  in 
execution  of  that  decree,  that  the  3rd 
respondent*  Paw  Tim  became  the  purchaser 
of  the  holding  at  the -Court  auction,  and 
that  appellants  were  owners  of  the  seven- 
acre  plot  and  were  entitled  to  a  declaration 
of  their  title. 

Ma  Yeik  did  not  contest  the  suit,  but 
gave  evidence  for  appellants 

The  respondent,  Pa  Tun,  suggested  that 
the  sale  of  the  land  by  Ma  Yeik  to  appel- 
lants was  a  sham  and  fraudulent  transac- 
tion He  said  that  he  bought  the  land  at 
the  Court  auction  and  was  put  iuto  posses- 
sion and  that  he  thereby  acquired  a  good 
title. 

The  1st  respondent  also  pleaded  that 
the  conveyance  by  Ma  Yeik  to  appellants 
was  fraudulent  and  collusive  and  that  ap- 
pellants were  never  in  possession  of  the 
property. 

The  Trial  Court  found  that  appellants 
succeeded  in  proving  that  Maung  Shan 
agreed  to  sell  the  plot  to  them  for  Rs.  1,000 
that  appellants  then  paid  Rs.  250  as  part 
of  the  price,  that  they  subsequently  paid 
the  price  in  full,  that  Ma  Yeik  conveyed 
the  plot  to  appellants,  that  although  that 
conveyance  was  made  after  the  holding  had 
been  attached  in  execution,  the  attachment 
was  illegal  and  invalid,  and  that  appellants 
had  acquired  a  good  title  to  the  land 

The  1st    respondent   appealed  and  the 


[92  I.  0. 1928] 

lower  Appellate  Court  agreed  wilh  the  Trial 
Court  that  appellants  succeeded  in  proving 
the  agreement  to  sell  and  the  pay  me  at  of 
the  price  in  full,  but  held  that^the  Trial 
Court  was  not  entitled  to  consider  the 
validity  of  the  attachment  because  appel- 
lants had  not  themselves  questioned  it,  and 
that  because  the  conveyance  from  Ma  Yeik 
to  appellants  was  made  after  the  property 
had  been  attached,  the  conveyance  was  void 
under  s  6i  of  the  Code, 

Appellants  appeal  on  the  grounds  that 
the  District  Court  was  wrong  in  holding 
that  the  conveyance  was  "Void  under  s.  64, 
and  ought  to  have  held  that  the  attachment 
was  invalid. 

The  conveyance  from  Ma  Yeik  to  the  ap- 
pellants, Ex  B,  was  registered  on  the  25th 
June  1921.  From  Ex.  2,  which  is  a  certified 
copy  of  the  diary  in  Civil  Execution  No.  25 
of  1921  of  the  District  Court  of  Tharrawad- 
dy,  the  attachment  of  the  property  was 
effected  on  or  before  the  8bh  June  1921, 
when  the  warrant  is  stated  to  be  returned 
duly  executed  But  some  years  before  this 
date,  the  judgment- debtor  had  agreed  to 
sell  the  land  in  question  to  appellant  and 
he  had  been  given  possession  and  had  paid 
for  the  same  at  the  time,  partly  in  cash  and, 
as  to  the  balance  of  Rs.  750,  by  a  promissory 
note  bearing  interest  at  Re.  1-8-0  per  cent, 
per  mensem,  And  this  promissory  note 
from  the  evidence  had  been  discharged 
some  months  before  the  attachment.  Conse- 
quently at  the  time  of  the  attachment  Ma 
Yeik  had  no  beneficial  interest  in  the  land 
in  question.  She  was  at  most  possessed  of 
the  bare  legal  title  which  she  was  bound  to 
convey  on  demand  to  her  purchaser.  [Trans- 
fer of  Property  Act,  s.  55  (1)  (d)]. 

In  these  circumstances,  appellant  was 
owner  with  a  good  possessory  title. 

In  our  construction  of  s.  ()4  of  the  C.  P.  0, 
what  is  aimed  at  is  the  transfer  of  a  bene- 
ficial interest,  delivery  of  property  or  any 
payment.  None  of  these  things  took  place 
in  the  present  case.  And  we  consider  that 
to  hold  the  section  to  apply  so  as  to  defeat 
the  appellants'  present  claim  would  be 
stretching  the  letter  of  the  section  so  as  to 
defeat  the  spirit. 

For  these  reasons  we  allow  the  appeal  and 
restore  the  decree  of  the  Sub-Divisional 
Court.  The  appellants  will  have  costs 
throughout. 

z,  K.  Appeal  allowed. 


TAJ  MOHAMMAD  t>,  FARID 


£92  1.  0. 1926.] 

LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No,  1803  OF  1924. 

January  20,  1925. 
Present:-— Mr,  Justice  Campbell. 
Mian,  TAJ   MOHAMMAD -PLAINTIFF- 
APPELLANT 

versus 

FARID  KHAN  AND  OTHERS — DEFENDANTS 
— RESPONDENTS. 

Provincial  Small  Cause  Courts  Act  (IX  of  1887), 
Sch.  II t  Art  18 — Suit  for  cesses  improperly  collected 
— Second  appeal 

Article  13  of  Sch.  II  to  the  Provincial  Insolvency 
Act  applies  only  when  the  claim  is  dnectly  against 
the  person  who  is  primarily  liable  to  pay  the  cesses 
or  dues  and  by  whom  they  are  originally  payable  and 
a  suit  a^ainat  a  person  who  has  improperly  collected 
the  dues  from  the  party  primarily  liable  is  beyond  its 
scope  Therefore,  no  second  appeal  lies  in  such  a  suit. 

Harnam  v  Gandu,  81  P  R  1889,  Jowahir  Singh  v 
Sard&V  Man  flingh,  84  P  R  1892  and  Pohla  \  Pertap 
Singh,  2  P  R  1887,  refei red  to 

Appeal  from  a  decree  of  the  District  Judge, 
Muljban,  dated  the  8th  March  19*24,  con- 
firming that  of  the  Fourth  Class  Sub- Judge, 
Mallei,  District  Mnltan,  dated  the  30th  June 
1923 

Lala  Mehr  Chan  I  Mahajan  for  Kan  war 
Dalip  Singh,  for  the  Appellant. 

Lala  Amar  Nath  Cliona  for  Lala  Fakir 
Chand,  for  the  Respondents. 

JUDGMENT.— This  judgment  will 
dispose  of  Civil  Appeals  Nos.  1603,  1604  and 
1605  of  1924.  In  each  case  the  value  of  the 
subject-matter  of  the  original  suit  did  not 
exceed  Rs.  500  and  the  preliminary  objec- 
tion is  raised  that  no  second  appeal  lies  by 
virtue  of  s.  102  of  the  C.  P.  0. 

All  three  suits  were  of  the  same  nature. 
The  plaintiff,  Taj  Mohammad,  is.the  lambar- 
dar of  Mama  Burana  in  the  Multan  District. 
In  1903  he  brought  a  suit  against  the  Hindu 
panchayat  of  the  village  and  against  his 
QO-lambardar  Mohammad  Khan  for  a  declara- 
tion that  he  was  entitled  to  Re,  8-6-0  psr 
cent,  of  the  dhart  or  weighment  dues  and 
he  obtained  a  decree  on  appeal.  Since 
then  Mohammad  Khan  the  co  lambardar  has 
died  and  the  post  held  by  him  has  been 
brought  under  reduction.  The  present 
plaint  alleges  that  Farid  Khan  son  of  Moham- 
mad Khan  has  gone  on  realising  his  father's 
share  of  the  weighment  dues  since  the  lat- 
ter's  death,  that  is  to  say,  another  Re.  8-0-0 
per  cent,  and  the  suits  are  for  recovery 
from  him  of  those  realisations  for  various 
periods  on  the  ground  that  the  lambardar 
or  lambardars  alone  have  a  right  to  them 
and  that  they  have- been  improperly  collect- 
ed by  Farid  Khan  who  is  not  a  lambardar. 

The  question  for  decision  is  whether  the 


779 


suits  come  within  Art.  13  of  the  Second 
Schedule  to  the  Provincial  Small  Cause 
Courts  Act,  If  they  do  not,  a  second  appeal 
is  barred  by  s.  102  of  the  C.  P.  C.  read  with 
s.  15  (2)  of  the  Provincial  Small  Cause 
Courts  Act. 

It  has  been  held  repeatedly  that  to  apply 
Art.  13  the  claim  should  be  directly  against 
the  person  who  is  primarily  liable  to  pay  the 
cesses  or  dues  and  by  whom  they  are  ori- 
ginally payable  and  that  a  suit  against  a 
person  who  has  improperly  collected  the 
dues  from  the  party  primaiily  liable  is  not 
within  the  scope  of  Art.  13.  This  has  been 
made  clear,  inter  alia,  in  Harnam  v.  Gandu 
(I),  Jowahir  Singh  v  Sardar  Man  Singh  (2) 
and  Pohla  v.  Pertap  tiuigh  (6)  Indeed  the 
previous  suit  referred  to  above  was  ruled  by 
the  Chief  Court  to  be  a  small  cause  in  spite 
of  the  fact,  that  it  was  for  a  declaration 
[Vide  Mohar  Singh  v.  Taj  Mahamed  (4)1. 
Tins  latter  decision  may  or  may  not  be 
correct  but  the  other  judgments  are  quite 
definite  on  the  point. 

The  learned  Counsel  for  the  appellant 
can  do  no  more  than  to  rely  upon  an  obiter 
dictum  in  Harnam  v  Gandu  (1),  which  con- 
tains the  observation  thata  claim  of  the  kind 
dealt  xvith  where  the  bone  of  contention 
really  is  the  title  of  the  defendant  to  the 
dues  received  by  him,  might  be  framed  in 
such  a  manner  as  not  to  be  cognizable  by  a 
Small  Cause  Couit  as  for  instance,  if  the 
suit  had  been  to  establish  an  exclusive 
right  as  against  the  defendant  to  discharge 
the  functions  of  the  office  to  which  the  dues 
were  payable  during  a  specific  period  and 
for  damages  for  infringement  of  that  right. 
The  present  suits  as  framed,  however,  can- 
not be  called  suits  to  establish  a  right  on 
the  part  of  the  plaintiff  to  discharge  the 
functions  of  the  office  of  lambardar.  It  is 
true  that  the  plaintiff  has  inserted  the 
word  "Aar?V  in  describing  the  sums  which 
he  claims  but  that  fact  cannot  help  him 

I  dismiss  all  the  three  appeals  \\ith 
costs. 

R.  L.  *  Appeals  dismissed. 

(1)  81  P  R.  1889. 

(2)  84  P  R  1892 

(3)  2  P  R  1887. 

(<n  181nd  Cas  532,  120  P  R  1912,  64  P.  W.  R  1913; 
103  P.  L.  R  1913 


780 


SHAKUA,  M.  A.  V.  MUNICIPAL  CORPORATION. 


[92  L  0.  1926  J 


RANGOON  HIGH  COURT, 

CIVIL  REVISION  No.  88  OF  1925. 

June  19,  1925. 

Present :— Mr.  Justice  Doyle. 
M.  A.. SHAKUR— PETITIONER 

versus 

MUNICIPAL  CORPORATION  OF 
RANGOON— RESPONDENT. 

of  Rangoon  Municipal  Act  (VI  of  W22\  ss. 
2,  lk—Ciml  Procedure  Code  (Act  V  of  W08),  8.  115 
— Reference  to  Small  Cause  Court — Revision — Agree- 
ment by  Municipal  Councillor  to  supply  materials  to 
Municipal  contractor,  effect  of 

The  High  Court  hns  jurisdiction  to  revise  a  deci- 
sion of  the  Chief  Judge  of  the  Rangoon  Small  pause 
Court  given  on  a  reference  under  s  14  of  the  City  of 
Rangoon  Municipal  Act.  [p.  780,  col.  2;  p.  781,  col.  1 J 

A  Municipal  Councillor  who  was  a  brick  manufac- 
turer contracted  to  supply  bricks  to  a  contractor  to 
whom  the  Municipal  Corporation  had  given  a  contract 
to 'build  a  market  There  was  nothing  to  show  that 
when  the  Corporation  gave  the  building  contract  to 
the  contractor  the  Councillor  knew  that  the  contract 
for  the  supply  of  bricks  would  fail  to  his  share 

Held,  that  the  Municipal  Councillor  was  not  dis- 
qualified by  reason  of  the  contract  for  the  supply 
of  bricks  from  sitting  and  acting  as  a  Councillor, 
[p.  782,  col.  1  ] 

Civil  revision  from  an  order  of  the 
Small  Cause  Court,  Rangoon,  in  Municipal 
Reference  No.  20  of  1U25. 

Mr.  Eusoof,  for  the  Petitioner. 
Mr.  Cowasjee,  for  the  Respondent. 

JUDGMENT.— Under  s.  14  of  the  City 
of  Rangoon  Municipal  Act,  the  Municipal 
Corporation  of  Rangoon  made  a  reference 
to  the  Court  of  Small  Causes,  Rangoon, 
stating  that  Mr.  M.  A.  Shakur  was  a  Coun- 
cillor of  the  Municipal  Corporation  and  a 
large  manufacturer  of  bricks;  that,  during 
the  Councillorship  of  Mr.  M.  A.  Shakur,  the 
firm  of  Messrs.  A.  0.  Martin  &  Co.,  ob- 
tained, from  the  Corporation,  a  contract  for 
the  erection  of  an  extensive  construction 
known  as  "  part  B"  of  the  new  Municipal 
Market,  which  would  involve  the  use  of  a 
large  quantity  of  bricks;  and  that  Mr.  M.  A. 
Shakur  had  entered  subsequently — If  the 
terms  of  the  reference  given  are  actually 
correct— into  a  contract  with, Messrs.  Martin 
&  Co.  to  supply  them  with  bricks  and  had 
been  supplying  bricks  to  Messrs.  A.  C. 
Martin  &  Co.,  to  be  used  for  the  erection  of 
the  said  buildings.  The  Municipal  Corpora- 
tion, therefore,  desired  the  Small  Cause 
Court  of  Rangoon  to  decide  whether,  under 
s.  12  (/')  of  the  City  of  Rangoon  Municipal 
Act,  Mr.  M.  A.  Shakur  had  become  disquali- 
fied from  being  a  Councillor,  inasmuch  as  he 
had,  directly  or  indirectly,  aehare  or  interest 


in  the  contract  of  Messrs.  A.  C.  Martin 
4  Co. 

The  learned  Chief  Judge  of  the  ^mall 
Cause  Court  of  Rangoon  pointed  out  Jbhat  s. 
12  (/)  reproduces  the  wording  of  a  similar 
provision  in  the  English  Municipal  Cor- 
porations Act  of  1882.  He  admitted  that 
reported  cases  on  the  question  were  relevant 
to  the  enquiry,  but  was  ofvopinion  that  the 
question  was  one  of  facfc,  which,  in  each 
case,  must  be  determined  on  its  own  merits. 
He  quoted  the  words  of  Atkin,  L.  J.,  in 
Lapish  v.  Braithwaite  (1)  on  the  intention 
of  the  section,  and  held,  on  the  principle 
enunciated  by  Atkin,  L  J.,  that  Mr.  Shakur 
could  not  possibly  be  disinterested  in  the 
contract  of  Messrs.  Martin  &  Co.  on  the 
ground  that  his  advice  as  a  Corporator  on 
the  quality  of  bricks  used  by  Messrs. 
Martin  &  Co.  would  not  be  disinterested; 
and  that  his  opinion,  as  regards  the  original 
giving  of  the  contract  to  Messrs.  Martin 
&Co,  with  the  possible,  if  not  probable, 
anticipation  of  a  beneficial  contract  for  the 
supply  of  bricks  to  come,  could  not  alsp  be 
disinterested 

On  behalf  of  Mr.  Shakur  it  is  now  urged 
that  the  learned  Chief  Judge  of  the  Small 
Cause  Court  erred  in  law  in  holding  that 
the  petitioner  had  a  share  or  interest  in  the 
contract  of  Messrs  Martin  &  Co ,  with  the 
Corporation;  and  that  he  failed  to  see  that 
there  was  nothing  on  the  record  to  show 
that  any  benefit  flowed  from  the  contract  to 
the  petitioner.  It  will  be  unnecessary  to 
deal  with  the  other  grounds  now  taken  in 
revision. 

A  preliminary  objection  was  raised  that 
under  s.  14  of  the  Rangoon  Municipal  Act, 
the  decision  of  the  Chief  Judge  of  the 
Rangoon  Small  Cause  Court  on  the  matter 
now  under  consideration  was  final  and 
that,  therefore,  this  Court  has  no  jurisdic- 
tion. 

I  am  unable  to  distinguish  this  case  from 
the  case  of  Mahommed  Ebrahim  Moolla  v. 
Jandass  (2),  in  which  it  was  held  that, 
although  s.  18  of  the  Rangoon  Rent  Act 
enacts  that  the  decision  of  the  First  Judge 
of  the  Court  of  Small  Causes  of  Rangoon 
shall  be  final  when  disposing  of  a  reference 
under  the  Rangoon  Rent  Act,  this  does 
not  prevent  the  High  Court  from  acting 
under  s.  llo  of  the  C.  P.  C. 

(1)  (1924)  41  T.  L.  JR.  14,  93  L.  J.  K.  B.  1123;   131 
L.  T,  586,  88  J  P.  187;  22  L,  G.  R.  665;  69  8.  J.  70 

(2)  70Ind,  Gas,  135;  A.  I.  R.  1923  Rang.  94;  11  L, 
B,R,  387;  I  Bur,  L,J,  138  (F.  B,), 


[9S I  0. 1926] 


SHAKUR,  M,  A.  V.  MUNICIPAL  CORPORATIOK. 


It  is  suggested  that  the  reasoning  on 
which  the  learned  Chief  Judge  of  the  late 
Chief  Court  of  Lower  Burma  based  his 
decision  in  Mahomed  Ebrahim  Moolla  v. 
Jandass  (2)— a  decision  which  was  concurr- 
ed in  by  the  other  two  Judges  who  formed 
the  Bench— had  been  impugned  by  the  Full 
Bench  judgment  in  Mohideen  v  Bukshillam 
(3);  and  that  the  present  matter  should, 
therefore,  be  referred  for  the  decision  of  a 
Full  Bench. 

It  is  true  that  it  can  now  no  longer  be 
held  that  the  Kent  Controller  is  a  Court, 
but  it  does  not,  therefore,  follow  that  the 
learned  Chief  Judge  of  the  Small  Cause 
Court,  Rangoon,  in  deciding  a  reference, 
does  not  act  as  a  Court,  and  I  do  not  con- 
sider that  the  conclusions  of  the  learned 
Chief  Judge  on  this  point  have  been  in 
any  way  impaired  by  the  recent  Full  Bench 
decision.  The  objection  as  to  the  jurisdic- 
tion of  this  Court  can,  therefore,  not  be 
sustained 

The  learned  Chief  Judge  of  the  Small 
Cause  Court  undoubtedly  went  beyond  the 
record  when  he  suggested  that  Mr.  Shakur's 
opinion  in  connexion  with  the  giving  of  the 
original  contract  to  Messrs  Martin  &  Co. 
was  likely  to  be  impaired  by  his  subsequent 
contract  with  Messrs.  Martin  &  Co.,  to 
supply  bricks 

In  the  absence  of  any  evidence  that  Mr. 
Shakur  had  any  knowledge  that  the  con- 
tract for  bricks  with  Messrs.  Martin  &  Co  , 
was  likely  to  fall  to  his  share — and  it  must 
be  remembered  that  no  allegation  as  to  this 
has  been  made  by  the  Municipal  Corpora- 
tion of  Rangoon — no  presumption  could 
arise  that  Mr.  Shakur's  independence  of 
opinion,  when  the  original  contract  was 
being  decided  upon,  was  likely  to  be  im- 
paired. 

As  regards  the  principles  on  which  the 
learned  Chief  Judge  of  the  Small  Cause 
Court  based  his  opinion  that  Mr.  Shakur's 
Municipal  probity  was,  in  the  future,  likely 
to  be  tainted  by  the  existence  of  the  brick 
contract,  it  is  perhaps  unfortunate  that  the 
learned  Judge,  whose  opinion  he  quoted, 
was  in  a  minority  in  Lapish  v.  Braithwaite 
(1),  in  the  course  of  which  judgment  Atkin, 
L.  J.'s  remarks  appear. 

The  learned  Chief  Judge  of  the  Small 
Cause  Court  was  of  opinion  that  certain 
circumstances  might  arise  in  the  future 
in  which  Mr.  Shakur  would  be  placed  in 

(5)  91  lad,  008,1827;  3  R.  410, 


a  position  in  which  he  would  have  to  decide 
as  to  his  duty  to  the  Corporation  or  his  duty 
to  his  own  interests.  There  is  nothing  on 
the  record  to  show  how  imminent  that  pos- 
sibility is,  and,  in  the  event  of  the  possibi- 
lity being  merely  a  remote  one,  the  reason- 
ing of  the  learned  Judge  of  the  Small 
Cause  Court  loses  most  of  its  weight. 

He  has  said  that  each  case  must  be  decid- 
ed on  its  own  merits  as  one  of  fact;  but  he 
himself  has  based  his  decision  on  surmise. 

The  case  of  Lapish  v.  Braithwaite  (I)  was 
a  Court  of  Appeal  case  and  the  majority 
opinion  in  that  case  would  not  support  the 
decision  of  the  learned  Judge  of  the  Small 
Cause  Court  The  case  of  Norton  v,  Taylor 
(4),  which  was  cited  before  the  leained 
Chief  Judge  of  the  Small  Cause  Court,  but 
which  was  not  adveited  to  in  his  judgment, 
a  Privy  Council  case, 

The  principles  on  which  the  decision  of 
their  Lordships  of  the  Privy  Council  in 
that  case  was  based  apply  with  equal  or 
greater  force  to  the  case  now  under  con- 
sideration. 

In  Norton  v.  Taylor  (4),  the  circumstances 
were  as  follows  — 

Mr.  Taylor  was  elected  an  Alderman  of 
Sydney  on  1st  December  1902,  and  continu- 
ed as  such  until  1st  December  1908,  when 
he  was  re-elected,  being  appointed  Lord 
Mayor  of  Sydney  on  9th  December  1904. 
In  1802  the  Sydney  Municipality  invited 
tendeis  from  contractor  for  the  execution 
of  works,  which  included  the  supply  of  wood 
troughing.  During  the  absence  of  Mr. 
Taylor  and  without  his  knowledge,  his 
partner,  in  June  J902,  entered  into  a  verbal 
arrangement  with  Messrs.  Henley  &  Co,, 
for  the  supply  of  timber  to  them  In 
February  1903."  Messrs.  Henley  &  Co., 
tendered  with  otheis  for  the  execution  of 
woiks  for  the  Municipality,  and  towards 
the  end  of  1904,  Mr.  Taylor's  firm  began  to 
supply  the  timber  to  Messrs  Henley  &  Co. 

Thus  at  the  time  when  Mr.  Taylor  be- 
came an  Aldei  man,  ancl  subsequently  Lord 
Mayor  of  the  Sydney  Municipality,  his  firm 
was  actually  supplying  timber  to  a  firm 
which  was  engaged  in  setting  up  an  electric 
lighting  installation  on  behalf  of  the  Sydney 
Municipality. 

The  argument  which  has  been  adduced  by 
the  learned  Chief  Judge  of  the  Small  Cause 
Coin  t  to  show  how  dangerous  it  was  from 
the  point  of  view  of  public  policy  for  Mr* 

(4)  (1906)  A.  0  378;  75  L.  J,  P,  0.  79;  94  L.T.  591; 
70  J.  P.  433,  22  T.  L.  R.  450 


782 


PATTAMAYTA  t>.  PATTAYYA. 


Shakur  to  remain  a  member  of  the  Rangoon 
Municipality  would  apply  with  gi eater  force 
to  the  case  of  Mr.  Taylor,  who  after  a  con- 
tract had  been  obtained  by  his  firm  for  the 
supply  of  materials  to  the  firm  for  setting  up 
an  electric  lighting  installation,  became  not 
only  an  Alder/nari,  but  actually  the  Lord 
Mayor  of  the  Sydney  Municipality.  Never- 
theless, the  Lord  Chancellor,  in  delivering 
judgment,  said  that  he  did  not  consider  that 
Mr.  Taylor  was  liable  merely  for  supplying 
materials  to  the  contractor  who  chose  to 
buy  them  from  him  without  any  sort  of 
understanding  or  arrangement  that  he 
should  do  so.  4(0ourts  of  Justice,"  he  added 
"in  such  cases  would  be  vigilant  to  observe 
evidence  of  any  concert  to  enable  a  civic 
officer  to  derive  benefit  from  a  contract".  He 
concluded  that,  as  there  was  no  proof  to 
show  the  liability  of  the  respondent,  the 
appeal  to  the  Privy  Council  should  be  dis- 
missed. 

In  the  present  case  there  is  the  tiame 
absence  of  evidence.  Under  the  circumstaces, 
therefore,  I  must  set  the  order  of  the  learned 
Chief  Judge  of  the  Small  Cause  Court  aside. 

On  the  reference  I  hold  that  Mr.  Shakur 
is  not  disqualified  from  being  a  Councillor 
of  the  Municipal  Corporation  of  Rangoon. 

The  costs  cf  this  reference,  three  gold 
mohurs,  will  be  paid  by  the  respondent 
Municipality. 

z.  K.  Order  set  aside, 

MARDAS  HIGH  COURT. 

LETTERS  PATENT  APPEAL  No,  106  OF  1924. 

October  9,  1925. 
Present: — Mr.  Justice  Devadoss 

and  Mr,  Justice  Waller. 
PATTAMAYYA— DEFENDANT- 
APPELLANT 

versus 

PATTAYYA  alias  KRISHNAYYA 

SHANBHUQA  AND  OTHERS — PLAINTIFFS 

Nos,  2  TO  4  AND  6— RESPONDENTS. 

Limitation  Act  (IX  of  1908),  Sch  I,  Arts  181,  782— 
Execution  petition,  recording  of—  Application  to  revive 
— Limitation — Joint  decree — Decree  against  several  de- 
fendants—Some reliefs  common  against  all  and  some 
separate — Decree,  whether  joint. 

There  is  no  provision  of  law  by  which  an  Executing 
Court  can  lodge  an  execution  petition  or  record  it,  or 
strike  it  of!  for  what  is  called  the  statistical  purposes, 
and  it  cannot  dismiss  the  application  for  the  reason 
that  it  is  long  pending.  The  Executing  Court  is 
bound  to  follow  the  procedure  laid  down  in  ths  Code 
and  an  execution  petition  which  is  ordered  to  be  re- 
corded must  be  considered  as  pending  and  the  right  to 
apply  for  its  continuance  accrues  from  day  to-day, 
[p.  783,  col  1] 

Umma  v,  Puttiyapurayil  Kumnachumkandi 


[9210,1928] 

Abdulla.  76  Ind  Gas.  126;  (1923)  M.  W.  N,  670,  A.  I. 
R  192*  Mad  178;  19  L.  \V.  613.  relied  on. 

A  decree  is  a  joint  decree  it  any  one  of  the  reliefs 
granted  under  the  decree  is  against  the  defendants 
jointly,  even  though  some  other  reliefs  may  be  given 
against  each  defendant  separately,  so  that  an  applica- 
tion to  execute  the  decree  against  one  defendant  as  to 
one  relief  saves  limitation  against  all  defendants  in 
respect  of  all  reliefs  [p.  785,  col.  1,] 

Subramama  Chettiar  v  Alagappa  Chettiar,  30  M. 
268;  2  M.  L  T  189  and  Barada  Kinkar  Chowdhury  v, 
Kabin  Chandra  Datta,  4  Ind  Gas.  408;  11  0.  L.  J.  83; 
14  0  W.  N,  465,  followed. 

Practice  of  striking  off  or  lodging  execution  peti- 
tions for  statistical  purposes  condemned,  [p.  784, 
col  1J 

Letters  Patent  appeal  against  an  order 
of  Mr.  Justice  Jackson,  in  C.  M.  8.  A. 
No.  38  of  1923,  dated  22nd  July  1924,  and 
reported  as  84  Ind.  Cas.  897,  against  an 
order  of  the  Court  of  the  Subordinate  Judge, 
South  Kanara,  in  A.  S.  No.  7  of  1922, 
preferred  against  that  of  the  Court  of 
the  District  Munsif,  Udipi,  in  R.  E.  P. 
No.  704  of  1921,  in  0.  8.  No.  77  of  1903, 

Mr.  T.  M.  Krishnasw  ami  Iyer,  for  the 
Appellant. 

Mr.  K.  Srinivsa  Rao,  for  the  Respond- 
ents. 

JUDGMENT. 

Devadoss,  J.— The  only  question  in 
this  appeal  is  whether  the  decree-holder's 
application  for  execution  is  barred  by 
limitation.  The  facts  are  briefly  these; 
The  respondents  herein  obtained  a  decree 
in  0.  IS.  No.  77  of  1903  on  28th  September 
1903.  It  is  admitted  that  the  application 
for  execution  in  R.  E  P.  No.  323  of  1915  on 
llth  March  1915  was  within  time.  The 
Court  ordered  delivery  of  the  properties  to 
the  decree -holders  on  21st  July  1915  Third 
persons  objected  to  the  delivery.  The  ob- 
jection was  removed  and  item  No.  3  was 
delivered  to  them  on  27th  March  1916  and 
the  Court  passed  an  order  on  that  day  "the 
3rd  item  was  delivered  to  the  petitioners 
and  the  petition  was  recorded  "  A  suit  was 
filed  by  the  obstructors  and  a  temporary 
injunction  was  granted  against  the  de- 
livery of  item  No,  2.  The  suit  was  ultimately 
dismissed  on  l&th  December  1916  and  con- 
sequently the  temporary  injunction  ceased 
to  be  in  force  from  that  date.  The  respon- 
dent filed  an  execution  application  on  3rd 
September  1921  and  prayed  for  delivery 
of  item  No.  2  from  the  10th  defendant  Both 
the  lower  Courts  dismissed  the  application 
as  being  barred  by  time  and  Jackson,  JM 
held  in  Puttayya  v.  Puttanayya  (1)  that  the 

(1)  8*  Ind,  Gas.  897;  20  L.  W.  585;  47  M.  L.  J.  608; 
A,  I,  li,  1925  Mad,  152;  (1925)  M,  W,  N,  298, 


[&2  I.  0, 192dj 

application  was  within  time.  Hence  this 
appeal  by  the  10th  defendant. 
*  The  first  contention  is  that  the  present 
application  filed  nearly  six  years  after  the 
application  of  19 15  is  barred  by  limitation 
and  it  is  urged  that  if  this  application  is 
to  be  treated  as  au  application  to  record 
the  execution  application  of  1915  it  should 
have  been  filed  within  three  years  of  18th 
December  1916  when  the  obstruction  to  exe- 
cution was  removed.  The  order  of  the  Dis- 
trict Munsif  on  the  application  of  1915  is 
"the  third  item  was  delivered  to  the  peti- 
tioners and  the  petition  was  recorded." 
The  question  is  whether  the  order  amounts 
to  a  dismissal  of  the  application.  The 
present  C,  P.  C.  does  not  contemplate 
the  passing  of  such  an  order.  When 
an  execution  application  is  filed,  if  it 
is  in  order,  it  has  to  be  disposed  of  on 
the  merits;  if  it  is  barred  by  limitation 
or  if  the  decree  has  been  satisfied  or  if 
the  applicant  is  not  the  decree-holder's 
assignee  or  his  legal  representative  or  if 
the  decree-holder  does  not  help  the  Court 
in  executing  the  decree,  or  omits  to  do  any- 
thing which  the  Court  directs  him  to  do, 
the  application  will  have  to  be  dismissed 
unless  for  proper  reasons  the  Court  ad- 
journs the  application.  If  the  decree- 
holder  is  not  able  to  do  a  thing  allowed 
by  the  Courfc,  the  Court  has  to  give  him 
further  time. 

There  is  rto  provision  of  law  by  which 
the  Executing  Court  could  lodge  the 
petition  or  record  it,  or  strike  it  off  for  what 
is  commonly  called  the  statistical  purposes. 
The  Executing  Court  is  bound  to  follow 
the  procedure  laid  down  in  the  Code  and 
it  cannot  dismiss  the  application  for  the 
reason  that  it  is  long  pending.  If  there 
is  obstruction  to  the  execution  of  the 
decree,  the  Court  ought  to  adjourn  the  peti- 
tion till  the  removal  of  the  obstruction.  It 
does  not  matter  how  long  the  obstruction 
continues  If  a  temporary  injunction  is 
issued  against  a  Court  executing  a  decree, 
the  Court  should  stay  its  hands  till  the  iii- 
junction  is  dissolved  or  till  the  suit  in 
which  it  is  granted  is  disposed  of.  If  a 
permanent  injunction  is  granted,  against 
the  execution  of  the  decree,  then  the 
application  for  execution  will  have  to  be 
dismissed.  If  the  Executing  Court  adjourns 
the  petition  from  time  to  time,  it  will 
enable  the  decree  holder  to  inform  the  Court 
as  to  the  progress  of  the  suit  or  proceeding 
in  which  the  temporary  injunction  is  grant- 


V,  PATTAY5TA. 


783 


ed  and  as  soon  as  it  is  informed  that  the 
obstruction  has  been  removed  the  Courts 
should  proceed  to  dispose  of  the  application 
according  to  law.  It  is  to  prevent  dilatory 
proceedings  and  the  long  pending  of  ex- 
ecution applications  that  0.  XXI,  r  57 
has  been  enacted.  It  lays  upon  the  decree- 
holder  the  duty  of  helping  the  Court  to 
execute  the  decree  in  his  favour  and  if  by 
reason  of  the  decree  holder's  default  the 
Court  is  unable  to  proceed  further  with  the 
execution  application,  it  shall  either  dismiss 
the  application  or  for  sufficient  reasons 
adjourn  the  proceedings  to  a  future  date. 
Upon  the  dismissal  of  such  an  application 
the  attachment  shall  cease.  Under  the  old 
Code  if  the  properties  were  once  attached 
and  the  application  for  execution  was 
subsequently  dismissed,  the  attachment  did 
not  necessarily  cease  to  have  effect.  If, 
instead  of  following  the  procedure  laid  down 
by  the  Code,  the  Executing  Court  orders 
that  the  petition  be  loged  or  recorded,  or 
struck  off,  such  an  order  is  not  one  sanc- 
tioned by  the  Code  and  it  only  amounts 
to  this:  petition  is  adjourned  sine  die.  In 
this  view  the  petition  of  1915  is  still  on 
the  record  of  the  executing  Court  and  the 
petition  of  1921  is  not  a  further  application 
for  execution,  nor  is  it  an  application  to 
revive  that  of  1915,  for  that  is  still  on  the 
file  and  no  application  is  required  to  revive 
an  application  which  is  pending.  It  is 
an  incorrect  use  of  language  to  speak  of 
reviving  a  petition  which  has  not  been 
dismissed.  If  the  application  has  been  im- 
properly dismissed,  au  application  would 
be  necessary  to  revive  it,  viz.,  wheie  the 
dismissal  is  not  on  the  merits  or  for  the 
default  of  the  decree-holder  but  for  the 
statistical  purposes  or  on  account  of  ob- 
struction which  would  take  time  to  remove. 
As  the  application  of  1915  is  still  pending, 
the  application  of  1921  was  only  intended 
to  call  the  attention  of  the  executing  Court 
to  the  fact  that  the  execution  application 
had  to  be  proceeded  with.  The  argument 
that  if  a  Court  lodges  or  records  an 
execution  application  it  should  be  re- 
garded as  pending  and  that  there  will  te 
no  time  limit  for  asking  the  Court  to 
proceed  with  it,  obviously  overlooks  the 
fact  that  it  was  not  the  decree-holder  that 
stood  in  the  way  of  the  execution  being 
proceeded  with  but  that  the  Court  kept  the 
matter  pending  without  taking  the  neces- 
sary steps.  When  a  Court  keeps  a  matter 
pending,  a  party  should  not  suffer  by  reason 


of  the  dilatoriness  of  the  Court  or  by  an 
action  of  the  Court  'not  sanctioned  by  the 
law.  The  remedy  to  prevent  long  pendency 
of  applications  for  execution  is  to  adjourn 
the  applications  from  time  to  time  and  to 
have  them  brought  up  for  orders.  '  If  that 
is  done,  the  Court  would  be  in  a  position 
to  know  whether  the  execution  could  be 
proceeded  with  or  not,  and  as  soon  as  the 
obstruction  is  removed  the  Court  would  be 
able  to  proceed  with  the  execution  accord- 
ing to  law. 

Great  reliance  is  placed  by  Mr.  T.  M. 
Krishnaswami  Iyer  on  Suppa  Reddiar  v. 
Avudai  Ammal  (2)  where  a  Pull  Bench  of 
this  Court  held  that  if  an  execution  appli- 
cation is  improperly  dismissed,  a  subse- 
quent application  to  revive  or  continue 
the  application  is  governed  by  -Art.  178  of 
the  old  Limitation  Act  corresponding  to 
Art.  181  of  the  present  Act.  This  case  is 
distinguishable  from  the  present,  for  here 
the  application  of  1915  was  not  dismissed. 
In  Chalvadi  Kotiah  v.  Poloori  Alimelam- 
mah  (3)  the  Executing  Court  dismissed  an 
execution  application  without  notice  to  the 
parties  on  the  ground  that  the  execution 
had  been  stayed  by  the  order  of  the  Dis- 
trict Court.  Miller  and  Munro,  JJ.,  held 
that  the  order  of  dismissal  amounted  to  no 
more  than  a  direction  to  the  officers  of  the 
Court  to  remove  the  proceedings  from  the 
pending  list,  and  observed  at  page  76*:  — 

"that  so  long  as  proceedings  initiated 
by  the  decree-holder  are  pending,  his  right 
to  apply  for  their  continuance  accrues  from 
day  to  day,  i.  e.,  on  every  day  on  which 
the  Court  does  not  suo  moto  continue  them  , 
The  right  to  apply  will  then  not  be  barred 
till  three  years  have  elapsed  after  the  pro- 
ceedings have  ceased  to  be  pending.1* 

In  Subba  Chariar  v,    Muthuveeram  Filial 

(4)  Benson   and  Abdur  Eahim,  JJ,,  follow 
the  decision  of  Miller  and  Munro,    JJ,,  in 
Chalvadi  Kotiah  v.  Poloori  Alimelammah  (3). 
The  principle  of  these  cases  is  that  if  an  exe- 
cution application  is  pending,  a  {subsequent 
application  is  not  an  application  under  Art. 
181  but  an  application  asking  the  Court  to 
continue   the   proceedings    in   a  pending 
application.    The  decision  in  Ayisa  Umma 
v.  Puttiyapurayil  Kunnadiunkandi  Abdulla 

(5)  to  which  one   of  us  was  a  party  is  in 


(4) 

(5) 

1924 


(2)  28  M.  50  (F.  B.) 

(3)  31  M.  71;  18  M. 

4)  14  Ind.  Gas.  264,  36  M.  553,  24  M.  L.  J.  545. 


.     .  . 
31  M.  71;  18  M.  L.  J.  46,  3  M  L.  T.  329. 


76  Ind.  Gas,  126,  (1923)  M.  W.  N.  670,  A.  I.  R. 
Mad.  178;  19  L.W.  613.  __ 
"Page  of  31  M.'-Ldd1! 


PAfrTAMAYYA  t>.  PATTAVYA.  [9frl.  0.  192#J 

poinfc.  It  was  held  in  that  case  that  an 
order  of  dismissal  of  an  execution  peti- 
tion for  statistical  purposes  did  not  amount 
to  a  dismissal  of  the  petition  but  that  the 
petition  should  be  considered  as  pending. 
I  hold  that  the  application  of  1915  is  still 
pending  and,  therefore,  there  is  no  bar  to  its 
being  proceeded  with. 

In  this  connection  I  must  express  my 
strong  disapproval  of  the  practice  of  strik- 
ing off  or  lodging  an  execution  application 
for  statistical  purposes.  The  sooner  it  is 
stopped  the  better  it  would  be  for  the  par- 
ties as  well  as  for  the  Courts  executing 
decrees. 

The  next  point  urged  is  that  the  decree 
is  not  a  joint  decree  and,  therefore,  the  ap- 
plication of  1918  and  of  1920  for  execution 
against  the  9th  defendant  do  not  save  the 
bar  of  limitation,  so  far  as  the  10th  de- 
fendant is  concerned.  In  view  of  my  deci- 
sion on  the  first  point  it  is  unnecessary 
to  deal  with  this  point  at  length.  The 
relevant  portion  of  the  decree  is  as  fol- 
lows:— 

"Plaintiffs  do  recover  fjom  defendants 
Kos.  9  and  10  possession  of  the  plaint 
property  with  buildings  thereon  described 
below  ;  plaintiffs  do  recover  from  the  9th 
defendant  future  rental,  etc.,  and  plaintiffs 
do  recover  from  the  10th  defendant  future 
rental,  etc."  The  argument  is  that  inasmuch 
as  the  decree  directs  the  9th  and  10th  de- 
fendants to  pay  mesne  profits  severally,  it 
is  not  a  joint  decree  but  a  several  decree, 
and  the  application  for  execution  against 
the  9th  defendant  cannot  be  treated  as  an 
application  in  a  joint  decree.  Where  a 
defendant  is  directed  to  pay  a  certain 
sum  to  plaintiff  and  another  defendant  is 
directed  to  pay  a  similar  sum  or  a  differ- 
ent sum  to  the  plaintiff,  the  decree  is  not 
joint  decree;  but  where  a  decree  directs  that 
A  and  B  shall  pay  a  certain  sum  to  the  plaint- 
iff and  further  directs  that  A  should  pay 
another  sum  and  that  B  should  pay  another 
sum  and  that  A  and  B  should  bear  their 
own  costs,  the  decree  is  a  joint  decree 
against  A  and  B.  The  decree  is  a  joint 
decree  if  any  one  of  the  reliefs  given  in 
the  decree  is  against  the  defendants  jointly 
even  though  some  other  reliefs  may  be 
given  against  each  defendant  separately. 
Explanation  I  to  Art.  182  of  the  Limitation 
Act  is  in  these  terms  : — 

"But  where  the   decree  or  order  has  been 

passed jointly  against  more  persons  than 

one,  the  application,  if  made  against  any 


1.  u. 


SHBIKH  BADAL  V.  ABDfcL  RABItf, 


785 


one  or  more  of  them,  or  against  his  or 
their  representatives,  shall  take  effect  against 
them  all1' 

This  explanation  should  be  liberally 
interpreted,  and  according  to  its  terms  the 
present  decree  is  a  joint  decree.  In  Sub- 
ramania  Chettmr  v.  Alagappa  Chettiar  (Q) 
it  was  held  that  where  a  decree  awards 
mesne  profits  against  A  and  B  jointly  and 
costs  jointly  against  A,  B  and  C\  an  appli- 
cation to  execute  the  decree  for  mesne 
profits  against  A  and  B  keeps  alive  the 
right  to  execute  the  decree  for  costs  against 
C  under  part  2  of  para.  2,  Explanation 
1  to  Art.  179  ofSch.II  to  the  Limitation 
Act.  This  case  was  followed  bv  a  Bench  of 
the  Calcutta  High  Court  in  Barada  Kinkar 
Chowdhury  v,  Nabm  Chandra  Datta  (1). 
The  facts  of  that  case  are  very  similar  to 
those  of  the  present  The  decree  in  this 
case  is  a  joint  decree  and  the  present 
application  against  the  10th  defendant  is 
not  barred  by  limitation  by  reason  of  the 
application  of  1918  and  Iy20.  1  find  this 
point  against  the  appellant. 

In  the  result  the  Letteis  Patent  appeal  is 
dismissed  with  costs 

Waller,  J.—  On  the  first  point  I  agree 
that,  on  the  authorities  no  other  conclusion 
is  possible,  though  the  position  does  seem 
to  me  to  be  highly  unsatisfactory  if  the  dec- 
ree-holder had  presented  an  application 
directly  after  the  close  of  the  intervening 
litigation  (as  he  should  have  been  forced  to 
do)  and  that  application  had  been  dismissed 
early  in  1917,  his  presenc  application  would 
have  been  long  out  of  time.  Having  done 
nothing  to  prosecute  his  first  application  for 
six  years,  he  is,  on  the  authorities,  still  in 
time. 

Something  should,  of  course,  be  done  to 
put  an  end  to  this  method  of  adjourning 
execution  applications  sine  die.  If  they  are 
held  up  by  some  other  proceedings,  they 
should  be  adjourned  either  for  definite 
period  of  six  months  each,  or  till  the  date  of 
the  closing  of  the  other  proceedings, 

On  the  2nd  point  also  1  agree. 

v.  N.  v. 

Appeal  dismissed. 
30  M.  268,  2  M.  L.  T.  189 
4  Ind.  Cas.  408;    11  C.   L.   J,  83,  14  C.  W.   N. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  REVISION  No.  378  OF  1925. 

December  14,  1925. 

Present. — Mr.  Findlay,  Officiating  J.  C 
SHEIKH  BADAL— PLAINTIFF—APPLICANT 

versus 

ABDUL  RAH1M  AND  ANOTHER— 
DEFENDANTS — NON-APPLICANTS* 

Civil  Procedure  Code  (Act  V  of  1008),  0  XXXIII, 
r  1 — "Other  than  his  necessary  wearing  apparel  and 
the  subject-mattei  of  the  suit",  scope  of  —Pauperism — 
Burden  of  proof 

The  \\ords  "other  than  his  necessary  weaung 
apparel  and  the  subject-matter  of  the  suit"  in  the 
Explanation  to  r  1  of  O.  XXXIII,  C  P  0,  only 
apply  in  a  case  v  here  no  specilic  Court- fee  is  pre- 
scribed,  and  do  not  qualify  the  liist  part  of  the 
explanation  as  well  [p  785,  col  2  } 

Knshnabaiv  Manohar,  30  B.  51M  at  p  597,  8  Bom. 
L  li  671,  followed 

Bai  Batayavn  v  Motilal  Ghdabhai,  72  Ind  Cas 
221,  47  B  523,  25  Bom  L  K  199,  A  I  K  1923  Bom. 
247  and  Chandan  Singh  v  Laxman,  90  Ind  Cas  DID, 
21  N  L  K  1)3,  A  1  K  1925  Nag  438,  distinguish- 
ed. 

The  onus  to  piove  paupei  ism  rests  on  the  person 
who  applies  ior  leave  to  sue  as  a  pauper  [j>  786, 
col  1J 

Application  for  revision  of  an  order  of 
the  Additional  Distuct  Judge,  Nagpur, 
dated  the  23rd  October  1925,  in  Civil  tfuit 
No.  2  of  1925. 

Mr.  G.  R.  Deo,  for  the  Applicant. 

Messrs.  B.  V.  Pradhan  and  R.  N.  Padhye, 
for  Non- Applicants  Nos.  1  and  2. 

ORDER,— In  this  case  the  Addi- 
tional District  Judge  decided  in  his  pre- 
liminary finding,  dated  2nd  March  1925, 
that  the  present  plaintiff-applicant  was 
liable  to  pay  ad  valorem  Court- fees  on  his 
claim  in  view  of  the  fact  that  he  is  admit- 
tedly in  possession  of  part  of  the  property 
in  dispute  but  that  his  title  thereto  is 
denied:  c/.  Bhaddoo  v.  Saddoo  (I).  There- 
after, on  his  being  ordered  to  pay  ad  valorem 
Court- fees,  the  applicant  asked  for  permis- 
sion to  sue  as  a  pauper;  this  application 
was  dismissed  by  the  Additional  District 
Judge  on  23rd  October  1925. 

The  main  contention  urged  on  appeal 
is  that  the  words  "other  than  hia  necessary 
wearing  apparel  and  tae  subject- matter  of 
the  suit"  in  the  Explanation  to  r.  1, 
0.  XXXIII,  C.  P.  C.,  qualify  the  first  part 
of  the  explanation  as  well.  The  contention 
seems  an  impossible  one  on  a  mere  reading 
of  the  explanation  in  question.  The  lat- 
ter words  of  the  explanation  only  apply  in 
a  case  where  no  specific  Court-fee  is  pre- 

(1)  81  Ind,  Cae,  766;  20  W,  L,  R,  43;  A  I,  B,  1924 
Nag,  86, 


CHAN  ELLIAM  V,  NEO  TflEIN  THEONG. 


cribed.  In  the  present  instance  it  having 
been  found  that  ad  valorem  Court-fees  are 
exigible,  the  only  question  which  arises 
ikj  whether  the  applicant  has  sufficient 
means  to  enable  him  to  pay  the  said 
Court-fee,  If  authority  were  required  on 
this  question,  it  is  to  be  found  in  Krishna- 
bai  v.  Manohar  (2). 

On  the  question  of  whether  the  evi- 
dence on  record  justifies  the  conclusion 
that  the  applicant  had  no  sufficient  means 
to  pay  the  Court-fee,  it  must  be  remember- 
ed that  the  onus  to  prove  pauperism  rests 
on  the  applicant  himself.  The  oral  evidence 
produced  by  him  is  worse  than  useless  and, 
indeed,  by  implication  injures  his  case. 
In  addition  to  this  there  was  a  clear  admis- 
sion in  para.  7  of  the  plaint  that  he  was 
in  possession  of  part  of  the  property  in 
suit,  while  in  the  plaintiff's  rejoinder  it 
was  also  admitted  that  he  was  living  in  one 
of  the  houses  in  suit  and,  as  will  be  seen 
from  the  schedule  attached  to  the  plaint, 
the  minimum  value  of  any  one  of  the  seven 
houses  concerned  is  Ks.  2,000. 

The  ratio  decidcndi  in  Bai  Balagavri 
v.  Motilal  Ghelabhai  (3)  was  entirely  differ- 
ent. In  that  case  Macleod,  C.  J,,  pointed 
out  that  the  offer  of  the  defendant  to  pro- 
duce in  Court  certain  ornaments  and  cash 
belonging  to  the  plaintiff,  the  value  of 
which  was  in  excess  of  the  sum  required 
for  payment  of  Court- fees,  could  not  alter 
the  position  as  regards  the  plaintiff's 
financial  status  at  the  moment  when  he 
applied  for  leave  to  sue  as  a  pauper.  It 
was,  however,  distinctly  pointed  out  therein 
that  it  would  still  be  open  to  the  defendant 
to  have  the  matter  re-considered  under  r.  9 
(6),  0.  XXXIII,  0.  P.  C.  Thus  the  decision 
quoted  is  in  principle  entirely  opposed  to 
the  contention  urged  on  behalf  of  the 
applicant,  for  in  the  said  decision  there 
was  a  clear  admission  that  the  cash  and 
property  in  question,  which  formed  part 
of  the  subject-matter,  could  be  taken  into 
account  in  calculating  the  plaintiffs  means. 
I  am  unable  to  see  how  the  decision  in 
Chandan  Singh  v.  Laxman  (4)  gives  the 
applicant  the  slightest  help.  That  decision 
laid  down  that  the  ownership  or  possession 
of  an  occupancy  holding  does  not  operate 
as  a  bar  to  an  applicant's  suing  in  forma 

f30  B.  593  at  p.  597;  8  Bom.  L.  R.  67L 
72  Ind.    Gas  224;  47  B,  523;  25  Bom,  L.  R.  199; 
R,  1923  Bom,  247. 
(4)  90  lad.   Cas.  949;  21  N,  L.  R,  98;  A,  I.  R,  1925 


[98  L  0. 19*6] 

pauperis.  The  decision,  in  .short,  is  entire- 
ly inapplicable  to  the  facts  of  the  present 
case. 

It  is  true  that  in  the  present  case  the 
defendants  have  not  been  able  to  produce 
specific  evidence  as  to  the  amount  of  the 
applicant's  means,  but  the  implications 
which  arise  from  the  oral  evidence  pro- 
duced by  the  applicant  himself,  he,  for 
example,  stated  in  cross-examination  that 
he  is  the  sole  heir  of  the  property  in  suit 
and  that  its  value  is  a  lakh  as  well  as  his 
definite  statements  in  the  plaint  and 
pleadings  as  to  his  being  in  actual  pos- 
session of  an  appreciable  part  of  the  proper- 
ty in  dispute,  fully  justify,  in  my  opinion, 
the  finding  of  fact  arrived  at  by  the 
Additional  District  Judge  that  the  appli- 
cant is  not  a  pauper  in  the  sense  that  he 
has  not  sufficient  means  to  file  the  suit  in 
the  ordinary  way. 

I,  therefore,  see  no  cause  to  interfere 
and  dismiss  the  application.  The  applicant 
must  bear  the  non-applicant's  costs. 

z.  K.  Application  dismissed, 


RANGOON  HIGH  COURT, 

CIVIL  MISCELLANEOUS  APPLICATION  No.  57 

OF  1925. 
May  22,  1925. 
Present :— Sir  Sydney  Robinson,  KT., 

Chief  Justice. 
CHAN  ELLIAM— APPLICANT 

versus 
NEO  THEIN  THEONG— OPPOSITE  PARTY, 

Limitation  Act  (IX  of  ]9GS),s  5 — Application,  delay 
in  filing — Time  spent  in  obtaining  copy  not  required  to 
be,  filed— Extension  of  time— Sufficient  cause. 

Delay  in  filing  an  appeal  cannot  be  excused  on  the 
ground  that  it  was  duo  to  time  spent  in  obtaining  a 
copy  which  was  not  required  to  be  filed  along  vith 
the  memorandum  of  appeal. 

Mr.  Villa,  for  the  Applicant. 

JUDGMENT.— This  is  an  application 
for  a  declaration  that  this  case  is  a  fit  one 
for  further  appeal. 

There  was  a  second  appeal  before  my 
brother  Lentaigne  and  his  decision  was 
dated  23rd  March  1925.  This  application, 
therefore,  should  have  been  filed  by  the 
22nd  April,  it  was  not  filed  until  the  1st 
of  May.  I  am  asked  to  excuse  the  delay 
because  petitioner  applied  for  a  copy  of  the 
lengthy  judgment  to  take  advice  as  to  whe- 
ther there  were  any  just  grounds  for  a  r$« 


[92  I.  0.  1926J 


tCALLU  MAL  V.  PARTAfc  StNGtt. 


view  of  judgment  or  for  siich  an  application 
as  the  present  one.  There  was  no  other 
necessity  for  obtaining  a  copy,  which  the 
rules  do  not  require  shall  be  filed  with  the 
application.  The  points  involved  were  well 
known  and  Counsel  could  at  once  have 
drafted  the  application,  but  petitioner  went 
to  other  Counsel  who  knew  nothing  of  the 
case.  I  see  no  reason  to  excuse  the  delay. 

The  application  is,  therefore,  dismissed  as 
time  barred, 

z.  K.  Application  dismissed. 


OUDH  JUDICIAL  COMMIS- 
SIONER'S COURT. 

FIRST  CIVIL  APPEAL  No   1  OF  192-1, 

October  30,  1925 
Present— Mr.  Ash  worth,  A  J.  C  , 

and  Mr.  Neave,  A  J   0. 
KALLU  MAL—DEFENDANT— APPELLANT 

versvs 

PARTAB  SINGH— PLAINTIFF- 
RESPONDENT 

Set-off— Cross-claim— Equitable  set-off—Hindu  Law 
— Illegal  act  of  father—Sons,  liability  of— Decree, 
form  of 

A  executed  a  sale  of  certain  property  in  favour  of 
B  and  put  him  in  possession  of  it  He  further 
agreed  to  indemnify  him  m  the  event  of  his  losing 
possession  The  vendee  lost  possession  upon  a  suit 
having  been  brought  by  the  relatives  ot  A  to  set 
aside  the  sale  Subsequently  the  vendee  brought  a 
suit  to  recover  the  consideration-money  and  the 
defendant-vendor  claimed  equitable  set-off  m  the 
shape  of  deduction  on  account  of  the  profits  realised 
by  the  vendee  during  his  period  of  possession 

Held,  (1)  that  the  suit  was  one  under  Art  97  of 
Son,  I  of  the  Limitation  Act  for  money  paid  upon  an 
existing  consideration  which  after w aids  failed,  [p 
789,  col  1] 

£2)  that  the  claim  for  profits  was  not  a  cross-claim 
arising  out  of  the  same  transaction  such  as  could  be 
described  as  a  claim  to  an  equitable  set-off  and, 
therefore,  could  not  be  allowed,  [ibid  ] 

Hanuman  Kamat  v  Hanuman  Mandur,  19  0  123; 
18  I  A  158,  6  Sar  P.  0.  J.  91,  9  Ind  Dec  (N.  s)  527 
(P.  C.),  followed. 

Ntaz  Gul  Khan  v,  Durga  Prasad,  15  A.  9,  A.  W  N 
(1892)  115,  7  Ind  Dec  (N.  s)  720,  Nand  Ram  v  Ram 
Prasad,  27  A  145;  AWN.  (1904)  193,  1  A  L  J.  529, 
Chutholm  v.  Gopal  Chander  Surma,  16  0  711,  8  Ind 
Dec.  (N.  s)  470,  Kishorchand  Champalal  v.  Madhowji 
Visram,  4  B.  407,  5  Ind  Jur.  320,  2  Ind.  Dec  (N.  s ) 
777.  referred  to 

The  test  of  liability  of  a  Hindu  son  for  an  illegal 
act  committed  by  his  father  would  rather  be  the 
purpose  for  which  the  father's  act  was  committed  than 
the  legality  of  the  act  itself,  [p.  789,  col  2.] 

Where  a  sale  made  by  a  Hindu  was  set  aside  as 
being  without  family  necessity  and  the  vendee  being 
deprived  of  possession  sued  to  recover  the  purcbaee- 


money  by  proceeding  against  the  family  property  m 
the  hands  of  the  son  of  the  vendor  who  had  been 
brought  on  the  record  as  the  legal  representative  of 
his  father  who  died  during  pendency  of  the  suit 

Held,  that  the  proper  decree  to  pass  would  be  a 
decree  against  the  son  as  the  legal  representative  of 
his  fathei  and  capable  of  execution  against  him  so 
far  as  he  held  pioperty  Mhich  was  liable  to  attachment 
under  the  Hindu  Law  foi  Ins  father's  debts  [p,  790, 
col  1] 

Gajodhar  Bakhsh  v  Gain  i  Shankar,  61  Ind  Cas 
205,  8  O  lj  J  81  and  Natasayyan  v  Ponnusami,  16 
M  99,  3  M  L  J.  1,  5  Ind  Dec  (N  s)  776,  referred 
to 

Durbat  Khachar  v  Khachar  llarsur,  32  13  348,  10 
Bom  L  R  297  and  Ratan  Lai  v  Birjbhukan  Saran, 
Cl  Ind  Cas  774,  distinguished 

Appeal  against  the  judgment  and  decree 

of  the    Subordinate    Judge,    Bara    Banki, 

dated  the  25th  September  1923. 
Mr.  Biskeshar  Nath,  for  the  Appellant* 
Messrs     Niamatullah,    Motilal    Safcse?ia, 

Wasi     Hasan     and    Naimullah,    for    the 

Respondent. 

JUDGMENT.— This  is  an  appeal 
against  an  order  of  the  Subordinate  Judge 
of  Bara  Banki  granting  the  plaintiff-re- 
spondent a  decree  for  Rs.  10,037-8  0  with 
costs  and  interest  on  part  of  the  decretal 
amount  against  the  appellant  Kallu  Mai. 

The  appellant's  father  Jagmandhar  Das 
on  the  21st  March  1917  executed  in  favour 
of  the  plaintiff-respondent  a  sale-deed  in 
respect  of  a  village  Siroli  Gang  which  he 
had  himself  acquired  at  a  Court  sale.  The 
consideration  entered  in  the  sale-deed  was 
Rs.  16,000  of  which  Rs.  (5,000  was  paid  in 
cash,  the  balance  Rs.  10,000  being  left  as 
a  mortgage  on  the  property  in  the  vendor's 
favour.  The  mortgage  deed  provided  for 
payment  of  Rs.  10,000  by  instalments  of 
Rs.  2,500  a  year.  The  sale-deed  contained 
a  clause  under  which  the  vendor  undertook 
to  indemnify  the  vendee  in  the  event  of 
his  losing  possession  of  the  village  for  any 
reason  and  empowering  him  to  realize  any 
money  that  might  in  such  a  contingency 
be  found  due  to  him  from  the  vendor  or 
his  heirs  and  representatives  together  with 
costs  and  damages. 

The  plaintiff  was  placed  in  possession 
of  the  village  and  in  the  course  of  the  next 
year  paid  Rs.  1,900  on  account  of  the  instal- 
ments due  under  the  mortgage. 

On  the  19th  March  1918  a  suit  was  in- 
stituted against  him  by  the  brothers  and 
nephews  of  the  vendor  Jagmandhar  Das  to 
have  the  sale  set  aside  and  to  recover  pos- 
session of  the  village  on  the  ground  that 
it  was  joint  family  property  and  that 


788 


KALttT  MAL  t>.  PJkRTAB  SINGH. 


[9&  I.  0.  1926] 


possession  of    the 
September  1920. 
1922  he  filed  the 
the   consideration. 


sale  was  not  for  the  benefit  of  the  family. 
This  suit  was  decreed  and  after  an  unsuc- 
cessful appeal  the  plaintiff- lespondent  lost 
village  on  the  15th  of 
On  the  22nd  of  May 
present  suit  to  recover 
amounting  in  all  to 
Rs.  7,900  which  he  had  actually  paid  and 
for  costs  incurred  in  the  litigation  \\ith  the 
family  of  JagmandharDas  and  the  expenses 
of  the  sale.  In  addition  to  this  he  claimed 
interest  at  12  percent.  The  total  amount 
for  which  he  asked  was  Rs.  12,617-12-3. 

Jagmandhar  Das  died  duiing  the  pend- 
ency of  the  suit  and  his  son  Kallu  Mai, 
the  present  appellant,  and  a  grand- eon  were 
substituted  as  his  legal  representatives. 
The  lower  Court  has  exempted  the  grand- 
son from  liability. 

The  learned  Subordinate  Judge  has  grant- 
ed a  decree  for  the  amount  of  considera- 
tion actually  paid  and  for  the  greater  part  of 
the  costs  claimed  in  the  plaint.  He  has  al- 
lowed interest  at  6  per  cent,  on  Rs.  l,01«-8  0 
the  amount  of  the  costs  which  had  so  far 
been  realized  from  the  plaintiff, 
Threegrounds  have  been  taken  in  appeal: — 

1.  That  the  lower  Court  ought  to  have 
deducted  from   the  amount  awarded  to  the 
plaintiff  the  sums  which  he  realized  from 
the  village  while  he  remained  in  posses- 
sion of  it. 

2.  That  nothing  should  have  been  allowed 
to  the  plain  tiff  on  account  of  expenses  of  liti- 
gation as  at  the  time  of  the  sale  Rs.   2,000 
was  left  with  him  for  this  purpose.    • 

3.  That  in  view  of  the  finding  that  the 
sale-deed  was  not  executed  for  legal  neces- 
sity it  should  have  been  held  that  the  joint 
family  property  would  not  be  liable  for  the 
claim. 

The  second  ground  may  be  dealt  with 
first.  The  consideration  entered  in  the  sale- 
deed  was  Ks.  16,000.  The  defendant,  how- 
ever, pleaded  that  the  real  consideration 
was  Rs.  18,000  and  that  by  an  oral  agree- 
ment between  the  parties  Rs.  2,000  had 
been  left  with  the  plaintiff  for  payment  of 
his  expenses  in  the  event  of  any  litigation 
Arising  over  the  tian3fer.  Such  an  oral 
agreement  is  obviously  inadmissible  in  evi- 
dence under  s.  i)2  of  the  Evidence  Act. 
Further,  the  evidence  which  has  been  ad- 
duced to  prove  it  is  abpolutely  woithjess. 
Even  if  accepted  at  its  face  value,  it  would 
prove  no  more  than  that  five  yeais  before 
the  sale  took  place  there  had  been  negotia- 

UORS  between  tbe  parties  ia  winch  Re,18,OOQ 


was  named  as    a  price    which  the  plaintiff 
would   be  willing  to  pay. 

The  first  ground  of  appeal  is  the  one  on 
which  most  emphasis  has  been  laid.  The 
plaintiff  was  in  possession  of  the  village 
for  about  3  5  years  from  Maich  1U17  to 
September  1920.  During  that  period  he 
enjoyed  the  profits  and  is  alleged  to  have 
cut  down  large  quantities  of  timber,  In 
the  written  statement  the  defendant  has 
estimated  the  amount  realized  by  the  plaint- 
iff from  the  village  at  Rs.  9,774  40  and  has 
claimed  in  para.  19  a  set-off  to  this  amount. 
The  learned  Subordinate  Judge  has  held 
that  the  sum  claimed  is  not  an  ascertained 
sum  within  the  meaning  of  O.  Vlll,  r.  6 
of  the  (X  P.  C,  and  that  the  defend- 
ant has  not  paid  any  Court  fee  on  it.  He 
has  further  held  that  a  claim  for  mesne 
profits  might  be  made  by  the  brothers  and 
nephews  of  Jagmandhar  Das  who  had  the 
?alc  set  aside.  Accordingly,  he  has  found 
t  hat  this  money  is  not  legally  recoverable  by 
the  defendant  in  this  case  and  has  decided 
against  him  on  this  point  without  going 
into  proof, 

In  the  written  statement  this  amount  is 
claimed  as  a  set-off,  but  it  is  contended  for 
the  appellant  that  it  ought  not  to  be  go 
described  but  as  a  claim  to  deduction.  In 
any  case  it  has  been  held  in  numerous  cases 
e  g,Niaz  Gul  Khan  v.  Durga  Prasad  (1), 
Kand  Ram  v.  Ram  Prasad  (2),  Chisholom 
v.  Gopal  Chander  Surma  (3)  and  Kishor- 
chand  Champalal  v.  Madhowji  Vishram  (4), 
that  0.  VIII,  r.  6,  of  the  C.  P.  0.,  is  not  ex- 
haustive but  that  Courts  can  allow  an 
equitable  set-off  if  the  amount  claimed 
arises  out  of  the  same  transaction  even 
though  the  sum  claimed  is  not  an  ascer- 
tained sum.  The  transaction  in  the  present 
case  was  the  sale  to  the  plaintiff  and  all 
the  subsequent  proceedings  up  to  his  dis- 
possession under  the  decree.  The  plaintiff  has 
re-paid  himself  for  his  losses  over  the  sale  by 
the  income  which  he  had  received  from  the 
land. 

We  are  unable  to  accede  to  these  proposi- 
tions.   This   suit,  as  was   held    by    their 
Lordships  of  the  Privy  Council  in  Hanuman 
Kamat    v.  Hanuman    Mandur  (5),  is    one 
(1)  15  A  0;  A.  W  N.  (1892)  115;  7  Ind.  DPC.  (N.  a.) 

'  (-2;  27  A    145;  A    W  N  (1004)  103;  1  A.  L.  J.  529, 

(?>)  Iti  C  711,  8  Ind  Dec  (N  s)  470 

(4)  4  B  407,  5  lad  Jur  320;  2  Ind  Dec  (K  s.) 
777 

tf)  19  C  123,  18  I.  A.  158;  6  Sar.  P.  C,  J  91;  9  lad' 
Pec,  (N,  t.)  527  (P,C.;, 


[92  I.  0. 1928] 


KALLU  MAL  0,  PARTAB  SINGE, 


under  Art.  97  of  Sch,  I  of  the  Limitation 
Act  for  money  paid  upoa  an  existing  con- 
sideration which  afterwards  failed.  The 
transaction  out  of  which  it  arose,  was  a 
sale  Section  55,  cl.  (2)  of  the  Transfer  of 
Property  Act  provides  that  "The  seller  shall 
be  deemed  to  contract  with  the  buyer  that 
tho  interest  which  the  seller  professes  to 
transfer  to  the  buyer  subsists  and  that  he 
has  power  to  transfer  the  same.1*  There 
was  in  addition  a  special  indemnity  clause 
in  the  sale-deed  in  suit  By  virtue  of  the 
sale  the  plaintiff  got  possession  of  the  land 
and  the  defendant  received  the  purchase- 
money  and  had  the  use  of  it.  It  cannot 
be  said  that  the  plaintiff  is  liable  to  account 
to  the  defendant  for  the  profits  of  the  land 
during  the  period  for  which  he  held  it  as 
owner  under  the  sale-deed.  Norcan  it  besaid 
that  the  claim  for  these  profits  is  a  cross- 
claim  arising  out  of  the  same  transaction 
such  as  could  be  described  as  a  claim  to  an 
equitable  set-off  Any  claim  to  mesne  pro- 
fits might  be  made  by  the  parties  who  had 
the  sale  set  aside  on  the  ground  that  it  was 
voidable  or  void  as  against  them  but  not 
by  the  vendor  or  his  legal  representative. 
We  hold  that  the  appellant  ia  not  entitled 
to  set  off  anything  against  the  plaintiff's 
claim. 

With  regard  to  the  third  ground  of  ap- 
peil  the  appellant's  argument  is  thit  the 
sale  was  sat  aside  as  void.  In  effecting 
such  a  sale  Jagmandhar  Das  committed  an 
illegal  act.  For  such  an  act  his  son,  the 
present  appellant,  cannot  bs  held  respon- 
sible and  is  not  liable  for  the  consideration 
e<cc^pt  to  the  extent  of  his  father's  as^pfts 
winch  nruy  ba  found  in  his  hands  The 
joint  family  property  is  certainly  not  liable 
The  learned  Subordinate  Judge  has  passed 
a  decree  against  the  appellant  Ki.il u  Mai 
without  any  qualifications  and  has  refused 
to  decide  against  what  property  it  can  be 
executed.  In  this  it  is  contended  he  was 
wrong 

For  the  doctrine  that  a  sale  of  joint  family 
property  by  father  is  void  ab  initio  reliance 
is  placed  on  Gajodhar  B^khsk  v.  Gauri 
Skan'car  (6)  That,  however,  was  a  case  of 
a  mortgage  and  in  it  reference  is  made  to 
the  Privy  Council  ruling  already  referred 
to  above  [Ilanuman  Kamat  v.  Hanuman 
Mandur  (5)]  in  which  it  was  held  with 
some  hesitation  that  such  a  sale  was  not 
necessarily  void  but  only  voidable, 

\6)  61  lad.  Gas.  205;  8  O.  L,  J.  81. 


789 

Durbar  Khachar  v.  KhMhar  Harsur  (7) 
and  RjLtan  Lil  v.  Birjbkukan  Siran  (8) 
have  bean  cited  as  instances  in  which  a  son 
was  not  held  liable  to  pay  debts  due  from 
his  father  on  account  of  illegal  acts  com- 
mitted by  him.  In  the  former,  however, 
ths  father's  act  was  a  tort  which  it  was 
found  resulted  in  no  benefit  to  the  estate 
which  came  into  the  hands  of  the  son,  while 
in  the  latter  the  debt  was  a  penalty  in- 
curred by  the  father  and  the  Commentators 
on  Hindu  Law  are  all  agreed  that  a  son  is 
not  liable  for  fines  inflicted  on  his  father, 
These  two  cases  are,  therefore,  readily  dis- 
tinguishable from  the  present  case. 

The  test  of  liability  would  seem  rather 
to  be  the  purpose  lor  which  the  father's 
act  was  committed  than  the  legality  of  the 
act  itself.  In  Natasayyan  v.  Ponnusami 
(0)  was  held  that  the  sons  were  bound  to 
discharge  the  debt  due  under  a  decree 
passed  against  their  father  for  money  dis- 
honestly retained  by  him  from  persons  to 
whom  he  was  accountable  in  respect  of  it. 
It  was  observed  in  the  judgment  in  that 
case  that  "  the  son  is  not  bound  to  do  any- 
thing to  relieve  his  father  from  the  conse- 
quences of  his  own  vicious  indulgences,  but 
h^  is  surely  bound  to  do  that  which  his 
father  himself  would  do  were  it  possible, 
viz,  to  restore  to  those  lawfully  entitled 
money  he  has  unlawfully  retained.'1 

AgHin  it  is  important  to  notice  that  the 
present  case  has  been  decided  against  the 
appellant  as  the  legal  representative  of  his 
iaoher.  ID  was  instituted  against  Jagman- 
dhar Das  and  it  was  only  on  his  death  that 
under  O  XXII,  r.  4,  of  the  C.  P.  0  ,  the  ap- 
pellant was  made  a  party  as  his  father's 
legal  representative.  Under  cl.  (2)  of  that 
rule  he  could  only  make  a  defence  appro- 
pnate  to  his  character  as  legal  representa- 
tive of  the  deceased  defendant  That  is  to 
say,  he  could  put  forward  no  plea  which 
his  father  could  not  have  put  forward. 
The  question  of  the  property  which  can 
be  aftected  bv  the  decree  is,  as  has  been 
pointed  out  by  the  learned  Subordinate 
Judge,  oae  for  the  Execution  Court  to  de- 
cide. Sections  52  and  53  of  the  0.  P.  0.  are 
clear  on  this  point 

The  order  ot  the  lower  Court  is  not  as 
clearly  wonied  as  it  might  be  in  this  res- 
pect We  amend  it  by  making  the  decree 
one  against  Kaliu  Mai  as  the  legal  repre- 

(1)  32  13  348,  10  Bom.  L,  R.  297. 

(8)  61  Ind  Oas  774 

(9)  16  M,  99;  3  M  L.  J,  1;  5  Ind,  Deo,  (w,  a)  776, 


790 


KAKKftTRI  VMKATA  SIVA  RAO  V,  OfllTTOORI  RAMA  RfctSHNAtYA,        [98  I.  0,  1928] 


oi  Ins  father  and  capable  of  execu- 
tion against  him  so  far  as  he  holds  pro- 
perty which  is  liable  to  attachment  under 
the  Hindu  Law  for  his  father's  debts.  In 
other  respects  the  appeal  is  dismissed  with 
costs, 
o.  H.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  482  OF  1924 

AND 
APPEAL  AGAINST  ORDBR  No.  373  OF  1924. 

October  5,  1925. 
Present: — Mr.  Justice  Devadoss  and 

Mr.  Justice  Waller. 
KANNURI VENK ATA  SIVA  RAO 

ANDOTHBWS — CoUNTER-PlflTlTJONERS — 

DEFENDANTS— PETITIONERS 

versus 

OHITTOOKI  RAMA  KRISHNA  YYA— 
PETITIONER— PLAINTIFF— RESPONDENT. 

Madras  Village  Courts  Act  (I  of  1889  as  amended 
by  Act  II  of  1920),  s.  7 8— Rules  framed  by  Madras 
Government^  rr.  J5,  64 — Forum,  creation  of,  for  decid- 
ing disputes  as  to  election  to  panchayat — Suit  in  Civil 
Courts  challenging  validity  of  election,  whether  main- 
tainable— Power  to  make  rules  to  regulate  appoint- 
ments and  elections,  whether  includes  power  to  appoint 
Tribunal  to,  decide  objection*  to  elections -Defect  in 
qualification  of  me mbers— Panchayat  Court,  working 

<>/ 

Where  a  public  body  has  been  created  by  Statute 
and  that  Statute  empowers  Government  to  frame  rules 
for  its  working,  it  is  open  to  the  Government  to 
create  a  forum  for  the  purpose  of  deciding  disputes 
as  to  elections  directed  to  be  carried  out  under  the 
Statute  and  thereby  to  exclude  the  jurisdiction  of  the 
Ordinary  Civil  Courts,  [p.  791,  col.  1  ] 

Kona  Thimma  Reddi  v.  Secretary  of  State  for  India, 
78  Ind.  Cas.  91,  47  M  325,  19  L.  W  59,  4<>  M  L  J  60, 
(192 4)  M  W  N  146,  A  J.  R.  1924  Mad  523  and  Bhai- 
bhankar  Nanabhai  v.  Municipal  Corporation  of 
Bombay,  31  B  604,  9  Bom.  L  R  417,  followed 

Under  s.  78  of  the  Madras  Village  Courts  Act,  which 
empowers  the  Governor-in-Council  to  make  rules  to 
regulate  the  appointments  or  elections  of  Presidents 
and  other  members  of  the  Panchayat  Courts,  it  is  a 
necessary  part  of  this  power  of  regulation  that 
Government  should  appoint  a  Tribunal  to  enquire 
into  and  decide  objections  to  such  elections,  [ibid.] 

Under  r  18  of  the  rules  framed  by  the  Madras  Govern- 
ment under  s.  78  of  the  Act  objections  to  an  election  to 
a  village  panchayat  have  to  be  made  within  a  prescrib- 
ed time  to  the  Revenue  Divisional  Officer,  whose 
order,  or  that  of  the  Collector,  thereon  is  final  and  not 
liable  to  be  contested  by  suit  or  otherwise,  [p.  790, 
col.  2.1 

A  Civil  Court  has,  therefore,  no  jurisdiction  to 
entertain  a  suit  challenging  the  validity  of  such  elec- 
tuns.  [p.  791,  col.  1.1 

Rule  64  of  the  rule?  framed  by  the  Madras  Govern- 


ment under  s  78  of  the  Madras  Villaga  Courts  Ac* 
provides  fully  for  the  competency  o!  ths  proceadings 
of  Panchayat  Courts  despite  defects  in  their  con- 
stitution or  ia  the  qualifications  of  their  members.  [p, 
790,  col  2.] 

Revision  petition  to  revise  an  order  of 
the  Court  of  the  District  Munsif,  Bezwada, 
in  I.  A.  No.  203  of  19^4,  in  0.  S.  No.  98  of 
1924. 

Mr.  L.  A,  Goiindaraghava  Iyer,  for  the 
Petitioners. 

Mr.  P.  Satyanarayana  Rao,  for  the  Re- 
spondent. 

JUDGMENT.— This  revision  petition 
arises  out  of  a  suit  filed  in  the  Court  of  the 
District  Munsif,  Bezwada.  The  object  of 
the  suit  was  to  obtain  a  declaration  that 
the  election  of  the  defendants  as  members 
of  the  Panchayat  Court  of  Bezwada  was 
void.  Pending  the  trial  of  the  suit,  the 
plaintiff  applied  for  a  temporary  injunction 
restraining  the  defendants  from  entering 
upon  their  duties  as  panchayatdars.  The 
District  Munsif  decided  that  he  had  juris- 
diction to  entertain  the  suit  and  proceeded 
to  grant  the  injunction  applied  for.  The 
result,  but  for  the  interference  of  this 
Court,  might  have  been  to  deprive  the 
citizens  of  Bezwada  for  several  years  of  the 
services  of  a  Panchayat  Court.  Rule  64  of 
the  rules  framed  by  Government  under  the 
Village  Courts  Act  provides  fully  for  the 
competency  of  the  proceedings  of  Pan- 
chayat  Courts  despite  defects  in  their  con- 
stitution or  in  the  qualifications  of  their 
members,  so  that  it  was  as  unnecessary 
as  it  was  undesirable  for  the  District 
Munsif  to  have  passed  the  order  he  did. 

Apart  from  that,  we  are  of  opinion  that 
he  had  no  jurisdiction  to  entertain  the  suit. 
Kuies  have  been  framed  by  Government 
under  the  Act  to  regulate  the  election  of 
pa,7ichayatdars.  Rule  18  (a)  lays  down 
that  objections  to  an  election  shall  be  made 
within  7  days  after  the  election  to  the 
Revenue  Divisional  Officer,  who  shall  in- 
quire and  except  in  certain  cases  which  are 
to  be  referred  to  the  Collector,  pass  orders. 
Sub-s,  (6)  declares  that  the  orders  of  the 
Revenue  Divisional  Officer  and  the  Collec- 
tor respectively  shall  be  final  and  not  liable 
to  be  contested  by  suit  or  otherwise.  It 
does  not  appear  that,  the  plaintiff  made 
any  attempt  to  comply  with  these  rules. 
Instead  of  doing  so,  he  has  resorted  to  a 
method  of  contesting  fh^  election,  which^haa 
been  expressly  excluded  by  the  rules.  The 
law  on  the  subject  has  been  stated  in  Kona 
Keddi  Y.  Secretary  of  State  for 


ASDUL  QADIR  V.  1LAHI 


PI10.19MJ 

India  (1)  to  which  decision  one  of  us  was 
a  party.  It  is  this  That  when  a  public 
body  has  been  created  by  a  Statute  and  that 
Statute  empowers  Government  to  frame 
rules  for  its  working,  itisopen  to  Government 
to  create  a  for um  for  the  purpose  of  decid- 
ing disputes  as  to  elections  directed  to  be 
carried  out  under  the  Statute  and  thereby 
to  exclude  the  jurisdiction  of  the  ordinary 
Civil  Courts.  The  same  principle  is  laid 
down  in  BhaishankarNanabhai  v,  Municipal 
Corporation  of  Bombay  (2)-  "Where  aspecial 
Tribunal,  out  of  the  ordinary  course,  is 
appointed  by  an  Act  to  determine  questions 
as  to  rights  which  are  the  creation  of  that 
Act,  then,  except  so  far  as  otherwise  ex- 
pressly provided  or  necessarily  implied, 
that  Tribunal's  jurisdiction  to  determine 
those  questions  is  exclusive.  It  is  an 
essential  condition  of  those  rights  that 
they  should  be  determined  in  the  manner 
prescribed  by  the  Act,  to  which  they  owe 
their  existence.  In  such  a  case  there  is  no 
ouster  of  the  jurisdiction  of  the  ordinary 
Courts  for  they  never  had  any/'  In  this 
case,  the  jurisdiction  of  the  Courts  has  been 
excluded  by  express  words 

It  is,  of  course,  argued  that  the  rules 
framed  under  s  78  of  the  Act  are  ultra 
vires.  That  section  empowers  the  Governor- 
in-Council  to  make  rules  to  "regulate  the 
appointments  or  elections  of  Presidents  and 
other  members  of  the  Pa nchayat  Courts  " 
It  is,  we  think,  a  necessary  part  of  this 
power  of  regulation  that  Government 
should  appoint  a  Tribunal  to  enquire  into 
and  decide  objections  to  such  elections 

The  revision  petition  is  allowed  with 
costs  throughout. 

v.  N  v.  Petition  allowed. 

Z    K 

(1)  78  Ind   Cas  91,  47    M   325,  19  L  W59,  46  M 
L  J  60,  (1924)  M    W  N     116,    (1924)   A    I    R    (M) 
523 

(2)  31  B.  604,  9  Bom.  L  R  417. 


791 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No   1195  OF  1924. 

January  8,  1925 

Present:—  Mr.  Justice  Campbell. 

ABDUL  QADIR  AND  OTHERS— 

DEFENDAHTS — APPELLANTS 

versus 

ILAHI  BAKHSH  AND  OTHERS- 
PLAINTIFFS  —RESPONDENTS. 
Registration  Act  (XVI  of  1008),  9,  17, 
f —Benefit  of  doubt. 


Section  17  of  the  Registration  Act  mutt  be  strictly 
construed  and  if  there  is  any  doubt  whether  a  docu^ 
meat  is  clearly  brought  within  its  purview,  the  benefit 
of  the  doubt  must  be  given  to  the  person  who  wants 
the  Court  to  receive  it  m  evidence 

Attra  v.  Mangal  Smgh,  65  Ind  Gas  251,  2  L  300,  4 
L  L  J  1,  27  P  L  R  1923,  A  I  R  1922  Lah  43, 
followed. 

Second  appeal  from  au  order  of  the  Dis- 
trict Judge,  Sialkot,  dated  the  8th  Feb- 
ruary 1924,  reversing  that  of  the  Sub- 
Judge,  Fourth  Olass,  Sialkot,  dated  the  27th 
February  1923. 

Bakhshi  Tek  Chand,  for  the  Appellants. 

Lala  Badri  Das,  R.  B,  and  Sheikh 
Mahomed  Munir,  for  Sheikh  Niaz  Mahomed, 
for  the  Respondents, 

JUDGMENT*— The  only  question  for 
decision  m  this  second  appeal  is  whether 
the  lower  Appellate  Court  has  decided  cor- 
rectly that  a  certain  lease  is  admissible  in 
evidence  and  is  not  compulaoiily  register- 
able  under  s  17  (1)  (d)  of  the  Indian  Re- 
gistration Act. 

The  material  portion  of  the  lease  is  as 
follows.— 

"  Maian  kih    .    .  .    ek  kothn  wa  ek 

dalan  bila  saqf  bamai  sahn  waqia  fihahr 
Sialkot  bakadar  kiraya  mabhgh  Rs  18  sal 
lekar  ikrar  mah  bamah  ada  karte  jawenge: 
ba  adamadai  kiraya  murtahan  mazkurko 
ikhtiyar  hoga  kih  makanat  se  bedakhal  kar 
deu'e 

Ifc  is  argued  by  the  learned  Advocate  for 
the  appellants,  that  this  lease  un mistake- 
ably  reseives  a  yearly  rent  within  the 
meaning  of  s  17  (I)  (d).  For  the  respond- 
ents it  is  contended  that  on  a  proper  con- 
struction, the  lease  reserves  a  monthly  rent 
and  is  only  a  lease  from  month  to  month, 
I  agree  with  the  latter  contention,  because 
it  is  quite  clear  that  no  sum  was  to  be  paid 
as  rent  by  the  year  and  because  the  word 
"  bakadar  "  used  before  the  words  "kiraya 
mabhgh  Rs.  18  sal  lekar"  is  very  indefinite. 

In  any  case,  I  would  say  this  is  an 
instance  to  which  the  rule  emphasised  in 
Attra  v  Mangal  Singh  (1),  applies,  namely, 
that  s  17  of  the  Registration  Act  must  be 
strictly  construed  and  that  if  theie  is  any 
doubt  whetheradocumentis  clearly  brought 
with  its  purview,  the  benefit  of  the  doubt 
must  be  given  to  the  peison,  who  wants 
the  Court  to  receive  the  document  in  evi- 
dence, 

I,  therefore,  dismiss  the  appeal  with 
costs. 

N.  H.  Appeal  dismissed. 

(n  65  Ind  Cas  254;  2  L  300,  4  L.  L  J,  L  27  P. 
L,  R.  1922,  A.  I,  S.  1922  Lah.  43. 


79* 


tAMAKKA  ft  KEGASAM, 


[92  I  0.  1926] 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDERS  Nos.  411  AND 

401  OF  1921. 

September  7,  1923. 

Present:— Mr.  Justice  Spencer  and  Mr. 

Justice  Venkatasubba  Rao. 
RAMAKKA — COUNTER- PETITIONER — 

PLAINTIFF— APPELLANT  IN  A.  A.  0. 

No.  411  OF  1921  AND  RESPONDENT  IN 

A.  A.  0.  No.  401  OF  Ifc21 

versus 

V.  NEGASAM— PETITIONER— DEFENDANT 

No.  4— RESPONDENT  IN  A.  A,  0. 

No.  411  OF  1921  AND  APPELLANT  IN 

A.  A.  0.  No.  401  OF  1921. 

Civil  Procedure  Code  (Act  V  of  1908),  ss  *  (I*),  Ult 
0.  XVIII,  r  /,  0  XXVI,  r.  li— Meant  profits, 
inquiry  as  to — Burden  of  proof — Right  to  begin— 
Commissioner — Omission  to  record  evidinze,  effect 
of— Evidence  Act  (I  of  1872),  s  Itf —Witness,  whether 
can  be  cross-examined  with  reference  to  previous  deposi- 
tion 

In  a  proceeding  for  ascertainment  of  mesne  profits, 
the  amount  of  the  profits  which  the  person  in  occupa- 
tion has  actually  received  is  a  matter  within,  the 
peculiar  knowledge  of  that  person  and,  under  s  106 
of  the  Evidence  Act  the  burden  of  proving  the 
amounts  actually  received  will  he  on  the  person  who 
received  them,  but  the  burden  of  proving  the  profits 
that  the  person  in  occupation  might  have  received 
will  lie  on  the  person  who  claims  them  [p  793,  col  1  ] 

Order  XVIII,  r.  1,  0  P  C.,  is  applicable  to  such  a 
proceeding  by  virtue  of  s.  141  of  the  Code  and  the 
person  claiming  the  profits  must  adduce  his  evidence 
first.  If  the  person  claiming  the  profits  adduces  no 
evidence,  no  mesne  profits  can  be  awaided  to  him  at 
ail  [ibid  ] 

Krishna  Mohun  Basak  v.  Kunjo  Dehari  Basak,  9  f!. 
L  R.  1,  Dinobundhoo  Nundee  v  Keshub  Chunder 
GHose,  3  W  R  Mis  25  and  Bro}endro  Coomar  Hoy  v 
Madhub  Chunder  Ghosc,  8  (X  343,  4  Ind  Dec  (N.  s) 
219,  relied  on. 

A  Commissioner  appointed  under  O  XXVI,  r.  11, 
0.  P  C.,  is  bound  to  record  in  writing  the  evidence 
taken  by  him  Information  given  to  the  Commis- 
sioner by  persons  who  are  not  called  as  witnesses  and 
in  the  absence  of  parties  to  the  suit  and  whose  state- 
ments are  not  reduced  to  writing  is  not  legal  evi- 
dence upon  which  the  Commissioner  can  act  [p  793, 
col  2;  p  795,  col  1  ] 

Harvey  v.  Shelton,  (1844)  7  Beav  455;  49  E  R  1141, 
13  UJ  Oh  406,  64  R  R  116  and  Walker  v  Frobisher, 
(1S01)  6  Ves.  Jun.  70,  31  E  R.  943,  5  R  R.  223,  relied 
on. 

Per  Venkatasubba  Rao,  */.— Under  s,  145  of  the 
Evidence  Act  a  witness  may  be  cross-examined  as  to 
previous  statement  made  by  him  in  writing  without 
such  writing  being  shown  to  him  or  being  proved. 
Only  if  it  is  intended  to  contradict  him  by  the  writing 
his  attention  must,  before  the  writing  can  be  proved, 
be  called  to  those  parts  of  it  which  aie  to  be  used 
for  the"purpoee  of  contradicting  him  [p  794,  col  2.] 

Appeals  against  an  order  of  the  District 
Court,  Anantapur,  dated  the  5th  April  1921, 
in  Interlocutory  Application  No.  95  of  1920 
(in  0.  S.  No.  3T1  of  1915  on  the  file  of  the 
I)isltvt  Court  of  Bellary). 


Mr,  L.  A.  Govindaraghava  Aiyar>  for  the 
Appellant. 

Mr.  B.  Somayya,  for  the  Respondent. 
ORDER. 

Spencer,  J,— This  was  an  application 
by  the  4th  defendant  for  mesne  profits  on 
the  extent  of  land  in  the  enjoyment  of  the 
plaintiff  between  the  date  of  the  decree  in 
the  first  Court  and  the  decision  of  the 
appeal.  The  matter  was  referred  by  the 
District  Judge  to  a  Commissioner  to  as- 
certain the  amount  of  mesne  profits  due. 
The  Commissioner  directed  the  plaintiff  to 
adduce  her  evidence  first,  on  the  ground 
that  she  had  been  in  possession  of  the 
property  and  was  thus  in  the  best  position 
to  state  how  much  profit  she  had  obtained. 
The  plaintiff's  Pleader  refused  to  open  his 
case,  upon  which  the  petitioner's  witnesses 
were  examined  and  the  case  was  closed. 
Meanwhile,  the  counter-petitioner  (plaintiff) 
applied  to  the  District  Court  to  direct  the 
Commissioner  to  record  her  evidence,  The 
District  Judge  in  an  order  on  the  interlo- 
cutory application  decided  that  the  Com- 
missioner was  right  and  refused  the  counter- 
petitioner's  request. 

The  questions  now  before  us  are  (1) 
whether  the  District  Judge  was  right  in 
giving  the  petitioner  mesne  profits  upon 
15  acres  42  cents  of  wet  land  and  (2) 
whether  he  was  right  in  not  allowing  the 
appellant  an  opportunity  to  adduce  her 
evidence.  As  regards  the  exent  of  the 
land,  the  plaintiff's  Pleader  relies  on  an 
almission  made  by  the  4th  defendant  in 
another  suit,  O.  8.  No.  393  of  1416,  that 
she  (plaintiff)  was  only  in  possession  of  8 
acres  47  cents,  and  he  argues  that  the 
petitioner  is  not  entitled  to  get  mesne 
profiUi  on  a  larger  extent  than  what  he 
admitted  that  she  was  in  possession  of. 
The  circumstances  under  which  the  state- 
ment was  made  in  th^  other  suit  have  not 
been  proved.  The  Judge  relied  on  the 
extent  as  given  in  the  delivery  warrant 
and  I  think  he  was  right  in  doing  so. 

Oa  the  second  point,  I  am  of  opinion 
that  the  Commissioner  and  the  District 
Judge  were  ijn  error  in  requiring  the  plaint- 
iff to  open  her  case.  Order  XVIII,  r.  1, 
C.  P.  C.,  which  is  applicable  to  miscella- 
neous proceedings  through  s.  141,  lays  down 
that  the  plaintiff  has  the  right  to  begin 
unless  tlie  defendant  admits  the  facts 
alleged  by  the  plaintiff.  In  a  case  like  the 
present,  where  the  4th  defendant  is  the 
person  chiming  mesne  profits,  ,  be  is  in 


[92  I,  0.  1928]  IUMARKA  V, 

the  position  of  a  plaintiff,  as  it  is  his 
petition  that  is  the  foundation  of  the  pro- 
ceedings and,  if  he  adduces  no  evidence  at 
all,  no  mesne  profits  can  be  awarded  to 
him.  Section  2,  cl.  (12;,  defines  mesne  profits 
as  those  profits  which  a  person  in  wrongful 
possession  of  such  propeity  actually  receiv- 
ed or  might,  with  ordinary  diligence,  have 
received.  The  profit  which  a  person 
actually  received  is  a  matter  within  the 
peculiar  knowledge  of  that  person  and, 
under  s  106  of  the  Evidence  Act,  the 
burden  of  proving  the  amounts  actually 
received  will  lie  on  the  person  who  received 
them;  but  the  burden  of  proving  the  pro- 
fits that  the  person  in  occupation  tfiight 
have  received  will  lie  on  the  person  who 
claims  them.  The  cases  cited  for  the 
•espondent,  Brojendro  Coomar  Roy  v. 
Madhub  GhunderGhose  (1)  and  Dinobundhoo 
Nundee  v.  Keshub  Chunder  Ghose  (2)  do  not 
go  further  than  to  show  that  it  lies  on  the 
person  who  actually  received  mesne  pro- 
fits to  show  how  much  he  received.  These 
two  cases  are  not  authorities  for  saying 
that  it  is  for  the  person  in  occupation  to 
prove  what  mesne  profits  should  be  award 
ed,  which  is  a  veiy  different  thing.  In 
Krishna  Mohun  Basak  v  Kunjo  Behaii 
Basak  (3)  it  was  observed  that  there  may 
be  cases  in  which  the  defendants  in  a  suit 
for  mesne  profits  may  properly  be  called 
upon  to  produce  their  accounts  and  to 
give  information  upon  facts  within  their 
special  knowledge,  but  that,  under  the  pro- 
visions of  s.  179,  C.  P  C.  of  1879,  which 
corresponds  to  O  XV1IT,  r  1,  the  right 
to  begin  was  with  the  plaintiff  and  the 
appellant's  contention  that  it  was  for  the 
defendant  to  begin  was  not  entitled  to  any 
consideration 

The  counter  petitioner  applied  to  the 
District  Judge  to  be  allowed  to  examine  her 
witnesses  and  this  applies  lion  was  refused 
As  the  case  cannot  be  saiisfactorily  dispos- 
ed of  without  hearing  the  evidence  on  both 
sides,  I  think  it  is  necessary  that  we  should 
send  the  case  back  to  the  District  Judge 
and  ask  him  to  record  such  evidence  as  the 
counter-petitioner  may  produce  on  her  side 
and  such  further  evidence  as  the  petitioner 
may  adduce  on  the  same  points 

Another  error  into  \\hich  the  Commis- 
sioner has  fallen  which  has  been  referred 
to  in  the  course  of  argument  is  the  fact 

1)  8  O.  343,  4  Ind  Dec  (N.  s)  219. 

2)  3  W  R.  Mis.  25. 

3)  9  0,  L.  R.  l.j 


793 

that  h?  obtained  information  from  certain 
psrscvis  whose  evidence  was  not  recorded 
by  him.  The  Judge  considered  that  this 
information  was  admissible  I  am  of 
opinion  that  the  Commissioner  was  entitled 
to  base  his  report  on  his  local  inspection 
and  also  upon  the  crop  experiment  conduct- 
ed by  him,  but  that  any  evidence  that  he 
took  should  have  been  recorded  in  writ- 
ing Order  XXVf,  r  10,  requires  that  he 
should  reduce  to  writing  the  evidence  taken 
by  him.  Information  given  by  witnesses 
which  is  not  reduced  to  writing  is  not  legal 
evidence  upon  which  the  Court  can  decide. 
If  either  of  the  parties  desires  to  have  the 
benefit  of  the  statements  of  those  persons 
from  whom  the  Commissioner  obtained  in- 
formation, they  should  now  cite  them  as 
witnesses,  otherwise,  the  District  Judge 
should  come  to  a  conclusion  on  the  rest  of 
the  evidence  before  him  without  any  refer- 
ence to  such  unrecorded  statements  The 
Disirict  Judge  is  directed  to  return  his 
revised  findings  within  three  months.  Ten 
days  for  objections. 

Venkatasubba  Rao,  J«— I  agree  and 
I  wish  to  add  a  few  words.  The  plaintiff 
filed  a  suit  for  the  recoveiy  of  certain  pro- 
perty and  obtained  judgment  In  pursuance 
of  it  she  took  possession  of  15  acres  and  42 
cents  of  wet  land  with  which  we  are  mainly 
concerned  In  appeal  tho  judgment  was  re- 
versed and  the  4th  defendant  now  seeks  res- 
titution of  mesne  profits  I  may  note  that 
the  4th  defendant  by  wav  of  restitution 
alreadv  obtained  15  acres  of  wet  land  from 
the  plaintiff  There  is  no  need  to  refer  to 
th^  dry  land  claimed  so  far  as  this  judg- 
ment is  concerned.  The  first  question  that 
had  to  be  decided  by  the  lower  Court  was 
whether  mesne  profits  were  to  be  given  in 
respect  of  15  acres  of  wet  land  or  merely 
in  lespoct  of  8  acres  which  the  plaintiff 
said  was  the  extent  of  the  land  she  had 
taken  possession  of  from  the  4th  defend- 
ant The  lower  Court,  having  regard  to  the 
plaint,  the  decree,  the  execution  proceed- 
ings and  the  delivery  warrant,  came  to  the 
conclusion  that  the  plaintiff  was  account- 
able for  mesne  profits  in  respect  of  15 
aoies  of  wet  land.  The  matter  was  fully 
dealt  with  by  the  District  Judge  and 
it  is  sufficient  to  say  that  the  lower 
Couit  rightly  allowed  mesne  profits  in 
re^poct  of  15  acres  and  odd  so  far  as  the 
wet  land  is  concerned. 

The  next  question  is,  what  is  the  proper 
amount  of  mesne  profits  ?  The  District 


794 


ftA&UKKA  V,  NB3ASA.M. 


[92  I.  a  19S6] 


Judge  referred  the  matter  of  the  ascertain- 
ment of  the  mesne  profits  to  a  Commissioner. 
This  is,  what  the  District  Judge  says  in  his 
preliminary  order;  "under  0.  XXVI,  r.  9, 
0.  P.  C.,  I  resolve  to  appoint  a  Commissioner 
to  make  a  local  investigation  and  ascertain 
the  amount  of  mesne  profits  which  maybe 
awarded  to  the  4th  defendant  on  the  above 
mentioned  extent  of  land  comprised  in  the 
itnms  specified  in  para.  2  supra  after  examin- 
ing witnesses  and  receive  any  documentary 
evidence  which  the  parties  may  produce 
before  him."  When  the  enquiry  was  taken 
up  by  the  Commissioner  the  plaintiff  con- 
tended that  the  4th  defendant  should  begin 
and  adduce  evidence  on  the  ground  that 
the  burden  was  upon  him  to  make  out  what 
the  mesne  profits  allowable  to  him  were. 
The  Commissioner  ruled  that  the  plaintiff 
was  the  party  who  was  to  begin,  thus  im- 
plying that  the  burden  of  proof  was  upon 
the  plaintiff.  The  plaintiff's  Vakil  declined 
to  call  evidence  objecting  to  the  ruling  and 
allowed  the  4th  defendant  to  examine  his 
witnesses.  The  latter's  case  was  closed  on 
13th  February  1921  when  the  plaintiff  ap- 
parently made  an  application  to  be  allowed 
to  examine  her  witnesses  at  that  stage.  The 
Commissioner  refused  to  request,  There- 
upon, oa  the  16th  February  1921,  the  plaintiff 
applied  to  the  District  Court  to  be  allowed 
to  examine  her  own  witnesses  and  the  Dis- 
trict Judge  decided  *that  the  ruling  of 
the  Commissioner  was  right  and  rejected 
the  plaintiffs  application  Before  I  deal 
with  the  objection  that  relates  to  this,  I 
may  advert  to  certain  other  matters  that 
transpired  before  the  Commissioner  him- 
self. 

The  plaintiff  desired  to  cross  examine 
the  4th  defendant  with  reference  to  a  cer- 
tain allegation  made  in  the  latter's  written 
statement  in  another  proceeding  The  Com- 
missioner disallowed  th?  plaintiff's  request 
and  on  application  by  the  plaintiff  to  the  Dist- 
rict Judge,  the  order  of  the  Commissioner 
was  confirmed. 

Exception  is  taken  to  the  report  of  the 
Commissioner  on  another  ground  Under 
the  impression  that  he  could  gather  informa- 
tion by  instituting  enquiries  regarding 
the  correct  amount  of  mesne  profits  and 
act  upon  such  information,  he  interview- 
ed several  raiyots  and  others  and  collected 
thoir  opinion  and  based  his  conclusions 
inter  alia  upon  the  information  so  obtained. 
Next  it  is  said  that  the  Commissioner 
conducted  certain  experiments,  He  h^d  the 


crop  harvested.  He  confined  hinmlf  to 
two  small  plots  of  land,  and  oa  ths  results 
obtained,  he  basod  hia  calculations  in 
regard  to  the  whole  land.  It  has  been  argu* 
el  before  us  that  the  Commissioner  was 
wrong  in  adopting  this  procedure 

1  shall  deal  shortly  with  these  objections. 
In  regard  to  the  last  objection  it  seems  to 
be  untenable.  It  has  been  pointed  out  that 
the  two  plots  were  selected  out  of  the 
entire  lands  and  it  has  not  been  shown  that 
the  yielding  capacity  of  the  other  portions 
which  are  adjacent  to  the  plots  selected  is 
different 

In  regard  to  the  objection  that  the  Com- 
missioner was  wrong  in  refusing  to  allow  the 
plaintiff  to  cross  examine  the  4th  defendant 
in  respect  of  a  statement  made  by  the  latter 
in  a  previous  proceeding,  the  objections 
must  be  upheld.  Under  s.  145  of  the  Evi- 
dence Act  a  witness  may  be  cross  examined 
as  to  previous  statement  made  by  him  in 
writing  without  such  writing  being  shown  to 
him  or  being  proved  Only  if  it  is  intended  to 
contradict  him  by  the  writing  his  attention 
must,  before  the  writing  can  be  proved,  be 
called  to  those  parts  of  it  which  are  to  be  used 
for  the  purpose  of  contradicting  him  The 
Commissioner  refused  to  allow  cross-examin- 
ation on  the  ground  that  the  dccument 
which  contained  the  previous  statement  was 
not  pioduced.  The  plaintiff  was  entitled  to 
cross  examine  the  4  lib.  defendant  in  regard 
to  his  previous  statement  without  showing 
the  latter  the  document  Only  if  it  became 
necessary  to  contradict  the  4th  defendant 
his  attention  should  be  called  to  the  writing. 
The  Commissioner  acted  clearly  wrongly 
in  this  respect.  On  another  ground  the 
Commissioner's  order  is  sought  to  be  justifi- 
ed. It  is  said  that,  when  the  preliminary 
order  was  passed,  the  Court  refused  to  attach 
any  weight  to  the  4th  defendant's  pre- 
vious statement,  and,  for  that  reason,  the 
Commissioner  also  was  justified  in  refus- 
ing to  allow  questions  to  be  asked  in  regard 
to  it 

This  position  is  entirely  wrong.  The 
Court  when  passing  the  preliminary  order 
declined  to  make  any  inference  from  the 
previous  statement  as  regards  the  extent 
of  the  land  in  the  4th  defendant's  posses- 
sion The  writing  was  sought  to  be 
used  before  the  Commissioner  for  altogether 
a  different  purpose,  the  purpose  being  to  as- 
certain the  probable  yield. 

The  contention  that  the  Commissioner  wai 
not  justified  in  obtaining  information  in 


[6S  L  0,  1926] 

the  absence  of  the  parties  must  be  upheld. 
The  Oourt  is  nob  eatitled  to  act  on  informa- 
tion received  in  the^absence  of  the  parties, 
nor  can  it  base  its  judgment  on  its  own 
knowledge  of  the  facts.  The  law  on  this 
subject  is  well-settled,  Lord  Langdale,  11  R  , 
observes  in  Harvey  v.  Shelton  (4;  4ln  every 
case  in  which  matters  are  litigated,  you  must 
attend  to  the  representations  made  on  both 
sides  and  you  m  ust  not  in  the  administration 
of  justice,  in  whatever  form,  whether  in 
the  regularly  constituted  Courts  or  in  arbi- 
trations, whether  before  lawyers  or  mer- 
chants, permit  one  side  to  use  means  of  in- 
fluencing the  conduct  and  the  decisions  of 
the  Judge,  which  means  are  not  known  to 
the  other  side.11  To  say  that  the  Commis- 
sioner could  have  come  to  the  same  con- 
clusion on  the  other  material  before  him 
is  no  answer.  If  the  case  is  brought  within 
the  general  principle  that  the  Judge's  mind 
may,  by  a  possibility,  have  been  biassed, 
there  is  a  sufficient  objection.  See  Dobson 
v.  Groves  (5)  and  Walker  v  Frobisher  (6). 

The  only  other  point  that  remains  to  be 
dealt  with  has  reference  to  the  objection 
that  the  ruling  of  the  Commissioner  in 
regard  to  the  right  to  begin  is  wrong. 
The  District  Judge  expressed  the  opinion 
that  the  ruling  was  correct.  The  4th  defend- 
ant claims  in  this  proceeding  mesne  profits 
from  the  plaintiff.  Section  2,  cl.  (12)  of  the 
C.  P.  C  ,  defines  mesne  profits  thu&. 

"Mesne  profits  of  property  means  those 
profits  which  the  person  in  wrongful  posses- 
sion of  such  property  actually  received  or 
might  with  ordinary  diligence  have  received 
therefrom "  It  will  be  seen  that  mesne 
profits  aie  not  merely  profits  which  a  per- 
son in  wrongful  possession  has  actually 
received.  The  argument,  therefore,^  that  the 
amount  of  profits  actually  received  is  within 
the  knowledge  of  the  person  in  possession 
and  that,  therefore,  the  latter  flhoulH,  in  the 
first  instance,  give  evidence  is  cleaily  un- 
tenable. In  a  suit  for  mesne  profits  the 
burden  is  always  held  to  be  on  the  plaintiff 
to  prove  the  amount.  This  is  the  recogniz- 
ed practice.  The  proceeding  before  us  is 
really  in  the  nature  of  a  suit  for  mesne 
profits.  No  ground  has  been  shown  why 
this  practice  should  be  departed  from.  The 


(4)  (1844)  7  Beav  455,  49  E 
466;  64  R  R  116. 

(5)  (1844)  6  Q   B.  637,   14  L  J, 
509;  115K.R  239. 

(6)  (1801)  6   Yes   Jun.  70,    31 
223 


RAHAKKA  V.  NRO-LSAM, 

C>nnUuoier's  ruling     that  tho  plaintiff 
should  b3gin  is  tantamount  to  a  decision 
that  the  burden  of  proof  is  upon  the  plaintiff. 
Pro  01  the  nature  of  the  controversy,  what 
the  partiea  were  disputing  about,  was  not  in 
regard  to  the  right   to  begin  but  the  duty 
to  begin.    I  am  of    the  opinion  that    the 
4th  defendant  was  bound  to  adduce  evidence 
in  the  first  instance  regarding  the  amount 
of  mesne  profits. 

[See  Krishna  Mohun  Basak  v.  Kunjo  Behari 
Basak  (3)] 

I,  therefore,  hold  that  the  Commissioner 
as  well  as  the  District  Judge  were  wrong  in 
regard  to  this  matter. 

Now  that  we  have  decided  that  the  ruling 
is  incorrect  what  follows?  It  has  been 
contended  on  behalf  of  the  4th  defendant 
that  the  plaintiff's  Vakil  having  refused 
to  adduce  evidence  when  he  was  called 
upon  to  do  so,  he  should  not  be  allowed  an 
opportunity  to  examine  his  witnesses.  This 
contention  1  am  unable  to  understand. 
When  the  Commissioner  gave  a  ruling, 
the  plaintiff  took  a  lisk  in  refusing  to 
accept  it.  But  what  is  the  extent  of  the 
risk  that  she  took  ?  She  took  the  risk  of 
the  ruling  of  the  Commissioner  being 
ultimately  pronounced  to  be  correct.  If  it 
should  be  held  to  be  correct  by  the  final 
Tiibunalthe  plaintiff  not  having  examined 
her  witnesses  when  she  ought  to  have  done 
so  she  would,  of  course,  be  completely 
debarred  from  adducing  any  evidence  what- 
soever. But  this  is  the  only  risk  that  the 
plaintiff  took.  Immediately  the  Uh  defend- 
ant's case  was  closed,  the  plaintiff's  Vakil 
made  an  application  that  he  should  be 
allowed  to  let  in  evidence.  The  effect  of 
our  decision  is  that  the  plaintiff  should  give 
evidence  only  after  the  4th  defendant  had 
closed  his  case.  It,  therefore,  follows  that 
the  plaintiff  should  be  allowed  to  examine 
her  witnesses  at  the  close  of  the  4th  defend- 
ant's case.  The  following  passage  from 
Taylor  on  Evidence,  Vol  I,  page  291,  s.  388 
has  been  relied  upon  by  the  4th  defendant : 
"The  question  respecting  the  right  to  begin 
is  a  matter  of  practice  and  regulation  upon 
which  the  presiding  Judge  must  exercise 
his  discretion  ;  and  the  Court  will  not 
interfere  with  his  decision  unless  it  be 
clearly  proved,  not  only  that  the  ruling  on 
this  point  was  manifestly  wrong,  but  that 
it  has  occasioned  substantial  injustice.1* 
This  passage  would  certainly  be  of  assist- 
ance to  the  4th  defendant,  if  the  plaintiff 
accepting  the  ruling  of  the  Commissioner 


R.  1141,  13  L  J.  Ch 
Q  B,  17;  66  R  R 
B.  R,  943;  5  R.  R. 


795 


llAROTRAO  V,  MUNICIPAL 


had  given  evidence  in  the  firsi  instance. 
In  that  case  the  Court,  although  it  came  to 
the  conclusion  that  the  ruling  was  incorrect, 
would  not  ordinarily  interfere  with  the 
final  decision  in  the  suit.  But  here  the 
plaintiff  did  not  accept  the  ruling  and  re- 
fused to  examine  the  witnesses  before  the 
4th  defendant  ga\re  evidence.  In  the  cir- 
cumstances, the  passage  relied  upon  has  no 
bearing.  I  have  disposed  of  all  the  objec- 
tions taken  to  the  procedure  adopted  by 
the  Commissioner.  I  am  of  the  opinion 
that  it  is  clearly  necessary  to  have  another 
finding  in  regard  to  the  amount  of  mesne 
profits. 

I  agree  with  the  order  that  has  been  pro- 
posed by  my  learned  brother. 

In  compliance  with  the  order  contained 
in  the  above  judgment,  the  District  Judge 
of  Anantapur  submitted  the  following 

FINDING.— In  A.  A.  O  No.  411  of  1921 
the  High  Court  has  directed  me  uto  record 
such  evidence  as  the  counter-petitioner 
may  produce  on  her  side  and  such  further 
evidence  as  the  petitioner  may  adduce  on 
the  same  points,1'  mz ,  on  the  question  of 
the  amount  of  mosne  profits  due  from  the 
one  to  the  other,  and  to  submit  a  revised 

finding 

*        #         *        *        *        *        * 

A  sum  of  Rs.  295  4  0  has,  therefore,  to  be 
deducted  from  the  figure  arrived  at  above, 
leaving  It?.  854-12-0.  Interest  at  Oper  cent, 
per  annum  on  the  sum,  from  dates  of  reah- 
zition  up  to  the  date  of  this  finding  amounts 
to  R*.  273-7-8— in ^  all  Rs.  l,u'8-.*8.  My 
finding  is  that  this  sum  in  due  from  the 
counter  petitioner  to  the  petitioner  in  res- 
pect of  mesne  profits 

These  Appeals  against  Order  Nos.  411 
ani  401  of  1921  CDtning  on  for  final  hearing 
after  the  return  of  the  finding  of  the  lower 
Court  in  Appeal  against  Order  No.  411  of 
1921,  upon  the  issue  referred  by  this  Court 
for  trial,  the  Court  delivered  the  following 

JUDGMENT. -The  District  Judge's 
finding  is  based  mainly  upon  the  lease- 
deeds  executed  in  respect  of  the  lands  uppn 
which  mesne  profits  accrued  during  the 
years  that  the  defendant  was  out  of  posses 
sion  We  have  heard  no  goovl  reasons  for 
doubting  the  genuineness  of  these  docu- 
ments, and  if  they  are  genuine,  they  afford 
the  best  possible  evidence  of  the  amount  of 
profits. 

TUe  counter-petitioner  does  not  press  her 


COMMITTED  NAOPtJR.  [92  I.  0.  1926 ) 

objections  as  to  interest.  We  accept  the 
District  Judge's  findings. 

As  regards  the  costs  of  the  Commission 
and  the  costs  of  the  proceedings  in  the 
District  Court  we  think  that  each  party 
may  fduly  be  asked  to  pay  a  moiety  of  all 
the  costs  incurred  in  the  lower  Court 
including  the  Commissioner's  fee,  seeing 
that  the  Commissioner's  enquiry  was  not 
wholly  to  the  advantage  of  either  side  and 
that  the  petitioner  in  the  result  is  to  get 
about  half  of  what  he  originally  claimed. 

Civil  Miscellaneous  Appeal  No.  401  of 
lt)21  is  dismissed  with  costs. 

Civil  Miscellaneous  Appeal  No.  411  of 
1921  is  allowed.  Each  side  to  pay  and 
receive  proportionate  costs. 

v.  N,  v.  Appeal  No.  1+11  allowed. 

z  K  Appeal  No.  1+01  dismissed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No  327  OF  1924. 

December  14, 1925. 

Present :— Mr.  Findlay,  Officiating  J.  C. 
MAROTRAO— PLAINTIFF— APPELLANT 

versus 

MUNICIPAL  COMMITTEE,  NAGPUR 
— DEFENDANT — RESPONDENT 

C  P  Municipal  Act  (XVI  of  1903),  ss  &&,  66, 
68—  Cow-shed^  whether  building— Application  for  per- 
mission to  build — Procedure-  Meeting  of  members  to 
deal  with  application  for  permission,  whether  essential 
---Defect^  whether  curable — Lease  of  iia/Ail  plot  by 
Municipal  Committee  for  purpose  of  building —Com- 
mittee,  whether  etui  refuse  to  sanction  construction  — 
Appeal -Decree  in  favour  of  appellant,  when  can  be 
set  aside 

A  cow  shed  e rested  on  posts  and  Inking  no  founda- 
tions is  a  'building' within  the  meaning  of  tho  \\oid 
as  used  in  the  C  P  Municipal  Act  of  1903  [p  798, 
col  1] 

Section  68  of  the  0  P  Municipal  Act  of  1803 
refers  to  land  and  houses  winch  aie  the  propeity  of 
the  Government  and  can  have  no  application  in  the 
oas-1  of  a  nazul  plot  leased  out  for  a  term  of  years  for 
building  thereon  by  a  private  individual  [ibid] 

Under  s  66  of  the  C  P.  Municipal  Act  of  190.3 
a  person  whose  application  to  a  Municipal  Committee 
for  permission  to  build  has  not  been  sanctioned  within 
a  month  of  its  Inmg  made  has  to  remind  the  Com- 
mittee of  this  fact  and  if  after  a  further  period  of  15 
days  no  reply  is  received,  the  Committee  is  to  be 
deemed  to  have  sanctioned  the  proposed  building. 
Tins  will  not,  however,  entitle  such  person  to  erect 
another  structure  of  an  entirely  different  nature  from 
tirit  adumbrated  in  his  application  for  permission  to 
build  [p  798,  col,  21 

Ssctioa  66  of  the  C.  P,  Municipal  Act  of  1903 
contemplates  a  sanction  givea  by  the  Conmittee  or 
Building  Sub-Committee  in  its  corporate  capacity  and 
it  is  nofc  legal  to  dispense  with  a  meeting  of  the  body 
for  obtaining  a  sanction  by  the  expedient  of  obtaining 
the  opinions  of  individual  members  by  circulating  the 


I.  0.  1D26J 


MAROTfeAO  TJ.   MUNICIPAL  COMMITTEE,  NAGPUft. 


Capers     The  omission  to  call  a  meeting  is  not  GUI  able 
by  s  24  of  the  Act      [p  709  cols  1  &  2  ] 

The  lease  of  a  nazul  plot  by  a  Municipal  Committee 
for  tho  purpose  of  building  thereon  cannot  supersede 
the  statutoiy  pi oMfeions  contained  in  s  CG  of  the  C 
P  Municipal  Act  of  P03  lelating  to  the  giant  r.f 
permission  to  build,  mid  can  in  no  way  e&top  the 
Municipal  Committee  fiom  icf using  to  allo\v  any 
building  to  be  elected  on  the  plot  or  insisting  on 
keeping  it  vacant,  on  grounds  relevant  under  Ch  VI 
of  the  Act  fp  71)0,  col  2  ] 

Where  a  suit  is  pajtially  decreed,  and  the  plaintiff 
files  an  appeal  against  that  poitioii  of  the  deoee  by 
which  las  suit  has  been  dismissed,  the  Appellate 
Court  has  no  power  to  set  aside  the  ileeicc  granted  in 
favour  of  the  plaintiff  in  the  absence  of  an  appeal  or 
cross-objection  by  the  defendant  [P  $01),  col  1  I 

Appeal  against  a  decree  ol*  the  Addition- 
al District  Judge,  Nagpur,  dated  the  28th 
April  1924,  in  Civil  Appeal  No.  84  of  1923 

Mr  M.  R  Bobde,  for  the  Appellant. 

Mr  R  N.  Padhye,  for  the   Respondent. 

JUDGMENT.— The  plaintiff-appellant 
filed  the  piesent  suit  in  the  Court  of  the 
2nd  Munsif,  Nagpur,  for  a  perpetual  in- 
junction restraining  the  defendant-iespond- 
ent,  Municipal  Committee  of  Nagpur,  from 
removing  the  structure  bhown  in  the  plan 
attached  to  the  plaint  and  also  for  a  direc- 
tion to  it  to  sanction  the  said  construction. 
The  suit  was  iiled  under  the  following  cir- 
cumstances — 

Nazul  plot  No.  551  was  put  up  to  auction 
and  the  plaintiff  being  the  highest  bidder 
obtained  a  thirty  years'  lease  thereof  on  pay- 
ment of  Us  17  premium  and  an  annual 
ground-ient-of  Rs  2-20.  The  lease  applied 
for  was  for  building  purposes  and  it  was 
let  out  for  such  a  purpose,  and  under  the 
terms  thereof  a  dwelling  house  had  to  be 
commenced  within  one  year  from  the  date 
of  the  lessee  obtaining  possession  and  had  to 
be  completed  within  three  years.  On  10th 
January  1922  the  plaintiff  gave  notice  to  the 
Municipal  Committee  of  hismtention  to  build 
a  house  according  to  a  plan  sent  therewith. 
Having  leceived  no  reply  he  sent  a  reminder 
on  llth  February  1922.  Thereafter,  the 
defendant  Committee  on  23rd  February 
1922  informed  the  plaintiff  that  his  plan 
was  rejected  as  the  locality  was  congested. 
The  plaintiff  appealed  to  the  Municipal 
Committee  which,  by  a  resolution  No.  130, 
passed  on  19th  August  1922,  rejected 
the  appeal  In  the  meantime,  the  plaint- 
iff had  erected  on  part  of  the  site  a  cow- 
Shed,  and  the  Committee  called  upon  him 
tc  demolish  it.  The  plaintiff,  under  an 
apprehension  that  the  Committee  would 
enforce  the  said  order,  accordingly  filed  the 
pesent  suit, 


The  pleas  offered  by  the  defendant-Com- 
mittee are  sufficiently  clear  from  the  1st 
Courts  judgment.  On  the  issues  which 
arose  on  those  pleadings,  the  Munsif  held 
that  the  lease  granted  to  the  plaintiff  was 
for  building  purposes  and  that  it  was  open 
to  the  lessor  to  forfeit  the  lease  and  claim 
re-entry  if  the  terms  thereof  were  not  earned 
out.  The  Munsif  further  held  that  the 
Committee  could  refuse  to  sanction  the  con- 
struction of  any  particular  building  on  the 
site  in  question  on  tho  ground  that  it 
would  be  prejudicial  to  the  health,  safety 
01  convenience  of  the  public  or  of  people 
living  in  the  vicinity,  but,  if  this  were  done, 
the  defendant-Committee  would  be  liable  for 
compensation  Ifc  was  further  held  that  the 
defendant-Committee  v*as  not  estopped 
from  declining:  to  allow  the  building  be- 
cause of  their  consent  given  to  the  nazul 
officer  that  the  site  could  be  let  out  ior 
building  purposes  The  cow-shed  in  ques- 
tion was  further  held  to  be  a  building  and 
was  unauthonsed  as  well  as  undesirable  in 
the  interests  of  sanitation  and  public  health. 
In  those  circumstances  the  Munsif  passed  a 
decree,  dismissing  the  plaintiff's  suit  for  an 
injunction  and  ordering  him  to  remove  the 
structure  in  question  on  payment  of  Rs.  70 
compensation. 

The  plaintiff  appealed  to  the  Court  of  the 
Additional  District  Judge,  Nagpur,  and 
that  Court  in  the  end  dismissed  the  suit 
wholly  and  disallowed  the  Es  70  compen- 
sation ordered  to  be  paid  to  the  plaintiff. 
This  curious  result  was  arrived  at  because 
the  plaintiff  in  his  appeal  before  the  Addi- 
tional District  Judge  urged  that  the  first 
Court  was  wiongmawarding  him  compensa- 
tion. 

The  plaintiff  has  now  come  up  on  second 
appeal  to  this  Court.  One  or  twoprelimin- 
aiy  points  may  at  once  be  dealt  with.  An 
additional  ground  of  appeal  was  filed  on 
2nd  December  1925  to  the  effect  that  the 
cow-shed  in  question  was  not  a  building.  It 
is  said  to  have  no  foundations  at  all  and 
merely  stands  on  posts  It  is  true  that  in 
the  old  Municipal  Act,  which  is  the  one 
applicable,  there  was  no  elaborate  definition 
of  "building11  such  as  is  contained  in  s.  3 
(a)  of  the  Municipal  Act  of  1922,  but  I  find 
it  wholly  impossible  to  entertain  this 
suggestion.  As  a  glance  at  Ch,  VI  will 
show  (c/.,  section  64)  huts  are  regarded 
as  buildings,  and  any  contention  that  the 
cow-shed  such  as  the  appellant  has  raised  is 
not  a  building  seems  tome  contrary  to 


fas 


V,  MtJNlOtPAL  COMMtfTfeB,  NAGPUR. 


dictates  of  both  Common  Law  and  sense. 
What  is  a  building,  must  always  be  a  ques- 
tion of  degree  and  circumstances,  and  iu 
view  of  the  number  of  houses  in  this 
country*  which  are  erected  of  fragile 
materials  apart  from  brick  and  stone  work, 
there  cannot  be  the  slightest,  question,  in  my 
opinion,  but  that  the  structure  in  question 
amounted  to  a  building  for  the  purposes 
of  the  old  Municipal  Act.  Decisions 
like  those  in  Emperor  v.  Muhammad  Yusuf 
(1)  and  Karnta  Nath  v.  Municipal  Board  of 
Allahabad  (2)  are,  it  need  hardly  be  said, 
entirely  inapposite  to  the  facts  of  the  pre- 
sent case.  In  the  one  Allahabad  case  move- 
able  planks  placed  over  a  drain  temporari- 
ly during  the  day  were  held  not  to  con- 
stitute a  building,  and  in  the  second  one  a 
canvas  screen  enclosing  a  certain  space 
adjoining  a  house  was  similarly  regarded. 
These  cases,  therefore,  give  the  appel- 
lant no  chance  of  success  and  it  is  perfect- 
ly clear  that  for  the  purposes  of  the  Munici- 
pal Act  of  1903  the  cow-shed  in  question 
constituted  a  building. 

Another  contention  offered  on  behalf  of 
the  appellant  is,  in  my  opinion,  an  equally 
useless  one,  that  is,  that  as  the  nazul  land 
imquestion  is  in  reality  the  property  of  His 
Majesty,  ss.  59  to  67  of  the  Municipal  Act  of 
1903  had  no  application  thereto.  It  seems 
to  me  that  s.  68  cannot  possibly  protect  the 
appellant  in  this  connection.  The  reference 
is  very  obviously  to  land  and  houses  which 
are  the  property  of  His  Majesty,  but  the 
provision  can  have  no  application  in  the 
case  of  a  nazul  plot  specifically  let  out  for 
a  long  term  of  years  for  building  thereon 
by  a  private  individual. 

As  I  have  already  pointed  out,  the  plaint- 
ifi-appellant,  first  of  all,  gave  notice  of  his 
intention  to  build  on  10th  January  1922:  c/. 
D-l.  Under  s.  66  of  the  Municipal  Act  of 
1903  the  person  giving  such  notice  has  to 
wait  for  a  month.  If  at  the  expiry  of  that 
time  no  reply  is  received,  he  has  to  ^ com- 
municate once  more  with  the  Municipal 
Committee  and  draw  their  attention  to  the 
said  fact.  If  after  a  further  period  of  15 
days  no  reply  is  received,  the  Committee  is 
to  be  deemed  to  have  sanctioned  the  pro- 
posed building.  In  this  connection  I  would, 
first  of  all,  point  out  that  the  appellant  in 
his  notice  (D-4)f  dated  llth  February  1922 

(V\  40  Ind.  Gas.  317;  39  A,  386;  15  A.  L.  J.  290;  18 
Or.  L.  J.  669. 

(2)  28  A.  199  A,  W.  N.  (1901)  252;  2  A.  L,  J.  $76:  2 
Or.  L,  J,  7W, 


[92  I.  0. 1926] 

did  not  comply  with  either  the  spirit  or  the 
letter  of  s.  66  (3).  On  the  contrary,  in  this 
notice  he  stated  that  as  he  had  received  no 
reply,  he  wasproceeding  with  the  erection  of 
a  hut  on  the  spot  in  question.  The  hut  erected 
by  him  was  in  no  sense  even  approximately 
the  house  of  which  he  had  originally  given 
notice  to  build.  It  was  a  kachcha  erection 
or  shed  without  foundations,  for  the  erec- 
tion of  which  no  previous  permission  had 
even  been  solicited  from  the  Municipal 
Committee.  It  is  utterly  impossible  on  any 
reasonable  consideration  to  regard  the  said 
hut,  as  in  any  way,  a  commencement  of  the 
building  for  which  he  had  originally  applied 
for  sanction.  The  original  building  was 
to  be  a  pakka  one  with  a  foundation  and 
was  to  be  constructed  of  bricks.  The  cow- 
shed erected  was  of  a  totally  different  nature 
and,  if  the  original  building  were  ever  to  be 
constructed  on  the  said  site,  it  is  perfectly 
obvious  that  the  cow-shed  would  have  first 
of  all  to  be  pulled  down.  The  argument, 
therefore,  that  this  cow-shed  may  be  re- 
garded as  a  commencement  of  the  perman- 
ent building  seems  to  me  to  be  utterly  beside 
the  point  and  to  be  quite  opposed  to  the 
facts  on  the  record.  From  this  point  of 
view  alone  the  appellant's  case  was  obvi- 
ously bound  to  fail,  for  it  is  perfectly 
clear  that,  without  even  soliciting  permis- 
sion he  proceeded  to  build  a  structure 
of  an  entirely  different  nature  from  that 
adumbrated  in  his  application  of  10th 
January  1922.  D-4,  as  I  have  already 
shown,  cannot,  io  the  circumstances,  be 
regarded  as  a  reminder  within  the  mean- 
ing of  s.  66  (3)  of  the  Municipal  Act  of  1S03. 
On  the  contrary,  it  was  a  document  which 
amounted  to  an  express  defiance  of  the 
Municipal  Committee  that  the  ,  appellant 
was  forthwith  proceeding  with  the  construc- 
tion of  an  utterly  unauthorised  building. 
From  this  point  of  view,  therefore^  the  Muni- 
cipal Committee  was  fully  justified  in  treat- 
ing the  erection  in  question  as  one  built 
without  sanction  and  in  ordering  its  demoli- 
tion under  s.  66,  sub-s.  (5). 

On  receipt  of  the  notice  (D-4,)  the 
Municipal  Committee  issued  a  warning 
(D-3)  to  the  appellant  not  to  proceed 
with  the  chhappar,  while  on  2^rd  Feb- 
ruary 1922  the  appellant  was  informed 
that  hie  request  for  building  the  house  in 
question  was  refused  on  the  ground  that  the 
site  and  the  locality  were  congested. 

While,  on  the  view  I  have  already  taken 
above,  the  appellant  wae  bound  to  fail  iu  any 


[92  L  0, 

event,  it  may  be  of  interest  to  examine  the 
case  on  the  assumption  of  a  very  forced  and 
fanciful  view  of  the  facts  of  this  case  that 
the  cow-shed  might  beregarded  asacommen- 
cement  of  the  original  building  for  which 
sanction  was  asked  on  the  10th  of  January 
1922.  In  this  connection  my  attention  has 
been  drawn  to  paia,  2  of  the  written  state- 
ment of  the  respondent  filed  in  the  lower 
Appellate  Court  011  14th  Maioh  1924.  It  is 
urged  that  the  procedure  adopted  in  reject- 
ing the  appellant's  application  was  illegal  in 
that  admittedly  there  was  no  meeting  of  the 
BuildmgSub-Committee  to  whom  the  poweis 
of  sanction  in  this  connection  have  been 
delegated  and  that  all  the  Engineer  did  v*aa 
to  circulate  the  papers  to  a  majority  of  the 
members  of  such  Building  Bub-Committee 
who  endorsed  on  them  their  opinions  that 
the  application  should  be  refused  It  has 
been  urged  on  behalf  of  the  appellant  that 
this  procedure  was  invalid  and  that,  in  the 
circumstances,  the  appellant  was  entitled  to 
assume  that  the  buliding  was  sanctioned. 
The  lower  Appellate  Court  has  held  that  s. 
24  of  the  Municipal  Act  of  1903  would  have 
cured  this  irregularity  It  has  been  urged 
on  behalf  of  the  appellant  that  the  Building 
Sub-Committee  as  such  passed  no  order 
and  that  there  were,  therefore,  no  proceed- 
ings taken  under  the  Act,  which  would  be 
curable  under  s,  24  of  the  Act.  From  the 
lagal  point  of  view  I  am  of  opinion  that  this 
contention  urged  on  behalf  of  the  appellant 
is, undoubtedly,  correct  Section  66obviously 
contemplates  a  sanction  given  by  the  Com- 
mittee or  Building  Bub-Committee  in  its 
corporate  capacity  and  it  is  not  possible  to 
dispense  with  such  sanction  given  at 
a  meeting  of  such  Committee  or  Sub- 
Committee  by  the  expedient  of  circulat- 
ing the  papers  to  individual  members. 
For  obvious  reasons  it  would  seem  to  me 
highly  inexpedient  that  any  such  idea  should 
prevail.  On  any  question  members  consult- 
ed individually  might  well  agree  that  the 
application  should  not  be  sanctioned,  but, 
if  they  met  together,  it  is  perfectly  possible 
that,  as  a  result  of  the  arguments  or  views 
of  some  or  any  of  the  members  of  the  Com- 
mittee or  Sub  Committee,  when  meeting  and 
discussing  the  question  together,  such  a 
body  might  well  have  taken  a  different  view 
of  ,khe  matter,  In  my  opinion,  therefore, 
although  this  finding  on  the  legal  question 
involved  does  not  affect  the  final  fate  of  the 
appeal,  the  lower  Appellate  Court  was  wrong 
jn  thinking  that  the  defect  in  question  was 


V.  MUNICIPAL  COMMITTEE,   NAGPtR.  «99 

curable  or  cured  by  s.  24.  I  may  further 
point  out  in  this  connection  that  when  the 
doing  of  any  act  on  behalf  of  the  Mimiei±  al 
Committee  becomes  emergent,  a  special  pio- 
vision  therefor  exists  in  s,  22  of  the  Act  of 
1S03 

Another  argument  wnsoffeiedon  behalf  of 
the  appellant*  to  the  effect  that  the  defend- 
ant-Committee being  a  parly  to  the  lease 
given  by  Government  in  re&pect  of  the  :  ite 
in  question  a  lease  given  for  house  building 
pia poses  it  \\as  incompetent  to  the  Com- 
mittee to  refuse  to  sanction  a  constiuction 
on  the  site  This  argument  seems  to  me 
one  which  it  is  wholly  impossible  to  accept 
and  were  there  any  basis  whatever  for  it,  it 
would  lead  to  a  reductio  ad  absurdum  in 
Municipal  admiinstiation.  The  lease  m 
question  can  in  no  way  supersede  the  statu- 
tory provisions  contained  in  s  60,  and  the 
letter  (P-5)  in  no  way  estops  the 
Municipal  Commit  tee  from  re  fusing  to  allow 
any  building  on  grounds  relevant  under 
Ch  VI  of  the  Act  The  fact  that  the 
Committee  were  on  19th  August  1921  will- 
ing to  approve  of  the  lease  of  the  land  for 
building  purposes,  would  in  no  way  estop 
them  from  refusing  to  sanction  any  parti- 
cular erection  thereafter,  and  indeed,  if  cir- 
cumstances had  changed  and  it  became  in 
their  opinion  inexpedient  to  allowany  build- 
ing whatever  on  the  site.  I  am  equally 
of  opinion  that  they  would  be  entitled  to 
enforce  their  later  opinion,  although  m 
this  instance  the  necessary  concomitant 
would  be  the  payment  of  compensation  to 
the  lessee  in  question. 

It  has  further  been  urged  on  behalf  of 
the  appellant  that  the  action  of  the  Munici- 
pal Committee  was  in  this  case  capricious 
and  arbitrary,  that  they  were  in  reality  show- 
ing favouritism  to  S  N.  Kulkarni  who  had 
originally  applied  for  the  lease  of  the  site 
in  question  and  it  has  been  urged  that  on 
this  ground  this  Court  would  be  entitled  to 
interfere:  c/,  TalukBoard,  Bandar  v  Malli- 
karjuna  Prasada  Naidu  (3).  In  this  con- 
nection it  has  been  urged  that  in  April  1922 
Kulkarni,  who  lives  in  an  adjoining  house, 
was  allowed  to  erect  a  latrine  on  the  site* 
For  my  own  pait,  I  am  wholly  unable  to 
find  any  such  circumstances  as  wo#ld  give 
rise  to  any  suggestion  of  capricious  or  arbi- 
trary action  in  this  connection  Latrines  are 
a  necessary  evil  in  the  case  of  the  houses  of 
persons  of  some  standing  who  own  or  occupy 

(3)  61  Ind  Cas.  407;  44  M.  156,  12  L  W.  585;  (1S20) 
M,  W,  N,  748;  28  M,  L.  T,  440;  40  M,  L,  J,  01,  ' 


860 


KOMMAREDDI  RAMACHANDRAYYA  t),  VGDERY  VfeNKATAKATNAM.  [92  I.  0   19  26] 


houses  in  the  Nagpur  City.  The  two 
latrines  which  Me&ais.  Kulkarni  and  Deokar 
were  allowed  to  build  were  apparently  erect- 
ed on  the  least  objectionable  site  possible 
and  it  is  a  very  different  proposition  indeed 
to  suggest  that  because  such  conveniences 
have  to  be  provided,  however,  intrinsically 
undesirable  they  may  be,  Jhe  plaintiff  is 
equally  entitled  to  erect  a  cow- shed  on  the 
open  plot  in  the  congested  locality  in  ques- 
tion. I  see  not  the  slightest  reason  for  hold- 
ing in  favour  of  the  appellant  on  this  point. 

On  the  main  grounds,  therefore,  the  plaint- 
iff-appellant must  clearly  fail  in  his  suit. 
Even  If  there  was  a  flaw  in  the  way  in  which 
the  Municipal  Committee  dealt  with  the 
appellant's  application,  he  clearly  failed  to 
comply  with  the  fundamental  provisions  of 
s.  66  (3)  of  the  Municipal  Act  of  1(J03  in 
proceeding  with  the  erection  of  the  row- 
shed  as  announced  in  hia  notice  of  llth  Feb- 
ruary 1922. 

The  last  point  to  be  considered  was  the 
disallowance  by  the  lower  Appellate  Court 
of  the  compensation  of  Rst  70  to  be  paid  to 
the  appellant.  On  this  point  1  think  the 
procedure  of  the  lower  Appellate  Court  was 
undoubtedly  incorrect.  No  cross-objection 
had  been  filed  by  the  Municipal  Committee 
with  reference  to  the  allowance  of  Rs.  70 
compensation,  and  I  think  such  a  cross-  ob- 
jection was  a  necessary  precedent  to  the 
said  relief  having  been  granted:  c/.,  Ran- 
gamlal  v.  Jhandu  (4).  It  is  true  that  in 
para.  4  of  the  petition  of  appeal  to  the  lower 
Appellate  Court  it  was  alleged  that  the  Mun- 
sif was  wrong  in  awarding  compensation, 
but  what  the  appellant  was  obviously  tilt- 
ing at  therein,  was  the  fact  that  his  main 
relief  had  been  refused  and  that  he  had  only 
been  granted  such  compensation. 

The  decree  of  the  lower  Appellate  Court 
will,  therefore,  be  modified  by  the  restora- 
tion of  the  provision  for  compensation  con- 
tained in  the  decree  of  the  first  Court.  On 
other  grounds  the  appeal  fails.  As  regards 
costs  in  view  of  the  partial  success  and  fail- 
ure of  the  appellant  in  this  Court  I  order 
the  costs  in  this  Court  to  be  borne  by  the 
parties  as  incurred.  Costs  in  the  lower 
Courts  will  be  borne  as  already  ordered. 

z.  K.  Decree  modified. 

(4)  11  Ind,  Gas.  640;  34  A,  32;  8  A.  L.  J.  Ill  I, 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITIONS  Nos.  500 
AND  501  OF  19>4. 

April  9,  1925. 

Present:— MT.  Justice  Odgers. 

KOMMAREDDI  RAMACHANDRAYYA 

AND  OTHERS—  DEFENDANTS— PETITIONERS 

versus 

VODURY  VENKATRATNAM— 
PLAINTIFF— RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  0.  VII,  r.  10 
--Order  returning  plaint  for  presentation  to  proper 
Com  t  for  want  of  jurisdiction — Application  to  with- 
draw portions  of  claim,  so  an  bring  it  within  Court's 
pecuniary  jurisdiction— Amendment — Power  of  Cowt 
to  re-admit  plaint-  Review — Notice  to  party  affected^ 
necessity  of 

Where  a  plamt  was  ordered  to  be  returned  for 
presentation  to  the  proper  Court  on  the  ground  that 
the  value  of  the  subject-matter  of  the  suit  exceeded 
the  pecuniary  limits  of  the  jwi&diction  of  the  Court 
to  which  it  had  been  presented  and  the  plaintiff 
thereupon  applied  tu  be  allowed  to  withdraw  his 
claim  to  certain  portions  of  the  property  mentioned 
in  the  plamt  which  had  tho  eflect  of  bruigmg  the 
plaint  within  the  pecuniary  juiisdiction  of  the  latter 
Court . 

Held,  that  the  Court  had  the  power  to  allow  the 
plaintiff  to  amend  the  plaint  and  re-admit  it  as  amend- 
ed [P  801,  cols.  1  &  2.] 

Kaiujnbar  Pandrapandaram  v.  Audimula  Ponna- 
pundaram,  3  Ind  Cas.  725,  d3  M.  262,  6  M.  L.  T  201, 
tullowed. 

Kannusami  Pillai  v  Jagathambal,  46  Ind.  Cas.  265; 
41  M.  701  at  p.  708,  U918)  M.  W  IS'  407,  24  M.  L.  T. 
46,  8  L.  W.  145,  35  M  L  J.  27,  not  followed. 

Where  a  plaint  is  ordered  to  be  returned  for  pre- 
sentation to  the  proper  Court  within  a  specified  time, 
it  is  riot  open  to  the  Court  without  notice  to  the 
defendant  to  review  its  order  and  give  additional  time 
to  tho  plaintiff  for  payment  of  additional  Court-fees. 
[p  801,  col.  2] 

Petitions,  under  s.  115  of  Act  V  of  1908 
and  s,  107  of  the  Government  of  India  Act, 
praying  the  High  Court  to  revise  the  orders 
of  the  Court  of  the  Principal  District 
Munsif,  Ellore,  dated  the  26th  April  1924, 
in  I.  A.  No.  857  of  1924,  and  0.  M.  P.  No. 
882  of  1VJ24,  respectively  in  0.  8.  No.  704 
of  19*3. 

Mr.  Chenchiahy  for  Mr.  P.  Venkatramana 
,  for  the  Petitioner?. 

Mr.  V.  Suryanarayana,  for  the  Respond- 
ent. 

JUDGMENT.— In  this  case  a  certain 
suit,  0.  8.  No.  7U4  of  1923,  was  filed  in  the 
Court  of  the  Principal  District  Munsif  of 
Ellore,  for  the  recovery  of  certain  pro- 
perties. It  was  alleged  that  the  suit  had 
been  under- valued  and  the  District  Munsif 
held  a  preliminary  enquiry  into  the  valua- 
tion of  the  items  of  property  involved  arid 
came  to  the  conclusion  that  the  market 
yalue  was  over  Rs,  5,000,  The  plaint 


I.  0.  1&26J          KOlffojlRBDDl  JBtAMAOHANbRAf  TA  V.  Vol»URY  VBMKAtAftATNAM. 


801 


ordered  to  be  returned  to  the  plaintiff  who 
was  given  7  days1  time  for  presentation  to 
the  proper  Court.  This  order  was  made  on 
the  31st  March  1924.  On  the  1st  April  1924 
the  plaintiff  presented  a  petition  a&lung 
for  15  days'  time  for  filing  additional  stamp 
for  the  plaint.  No  notice  of  this  applica- 
tion was  given  to  the  defendants  and  on 
the  2nd  April  the  Principal  District  Muneif 
purported  to  review  his  decision  of  the 
31st  March  and  granted  the  prayer  in  the 
petition  of  the  1st  April  giving  the  peti- 
tioner 7  days1  time  in  which  to  pay  the 
Additional  Court-fee.  I  am  of  opinion  that 
as  regards  C  R.  P.  No.  500  of  1924  the 
learned  District  Munsif  was  clearly  not 
entitled  to  review  his  order  at  least  with- 
out notice  to  the  other  side.  Therefore 
C.  R.  P.  No.  500  must  be  allowed  with 
costs. 

A  more  important  question  arises  in  C. 
R.  P.  No.  501  of  1»24  On  the  3rd  April, 
one  day  after  the  petition  for  review  above 
referred  to,  the  plaintiff  asked  to  be  allowed 
to  withdraw  his  claim  to  4  items  of  pro- 
perties mentioned  in  the  plaint  schedules 
and  to  amend  the  plaint  in  such  a  manner 
that  it  would  conform  to  the  monetary 
jurisdiction  of  the  District  Munsif 's  Court, 
and  the  District  Munsif  by  his  order  of  the 
26th  April  1924  held  that  no  final  order 
had  been  passed  on  the  plaint  and  that  by 
his  order  of  the  2nd  April  the  District 
Munsif  intended  to  set  aside  the  original 
order  for  the  immediate  return  of  the 
plaint.  The  petition  was  allowed  and  the 
plaintiff  was  permitted  to  withdraw  his 
claims  and  amend  his  plaint  accordingly. 
The  question  is,  had  the  learned  District 
Munsif  jurisdiction  to  pass  the  order  he 
did?  In  passing  I  may  state  that  1  am 
very  doubtful  whether  the  District  Munsif 
was  right  in  his  view  as  to  the  effect  of  the 
order  of  the  2nd  April  and  I  am  more  than 
doubtful  as  to  the  correctness  of  his  view 
that  no  final  order  has  yet  been  passed  on 
the  plaint.  In  this  connection,  I  am  press- 
ed with  two  decisions  of  the  Court.  The 
first  is  the  one  reported  in  Karumbar 
Pandrapandaram  v.  Audimula  Ponna- 
pundaram  (1)  which  is  a  decision  by  Mr. 
Justice  Abdur  Rahim  in  a  case  which  I 
am  bound  to  say,  strikes  me  as  very  similar 
to  the  present.  In  that  case  there  was  an 
enquiry  as  to  the  value.  It  was  found  that 
the  suit  was  under- valued  and  the  plaint 

(1)  3  Ind,  Qas,  723;  33  M,  202;  6  M,  L,  T,  261. 
51 


was  returned  for  presentation  to  the  pro- 
per Court.  The  plaintiff  amended  his  plaint 
by  correcting  the  valuation  and  striking 
off  some  of  the  properties  so  as  to  bring  the 
claim  within  the  jurisdiction  of  the  Dis- 
trict Munsif.  The  District  Munsif  theie- 
upon  re-admitted  the  plaint  and  the  ques- 
tion for  decision  was,  had  he  power  to  do 
so.  The  learned  Judge  decided  that  he  had 
and  his  decision  was  coniirmed  in  Letters 
Patent  appeal  by  a  Bench  of  this  Court.  On 
the  other  hand,  there  are  observations  of 
Sadasiva  Iyer,  J.,  in  Kannusami  Pillai  v. 
Jagathambal  (2)  in  the  course  of  which  he 
says  :  "It  also  stands  to  reason  and  princi- 
ple that  a  Court  which  has  no  jurisdiction 
over  a  suit  cannot  pass  any  valid  orders  in 
such  a  suit. except  orders  which  the  Statute 
expressly  empowers  it  to  pass,  such  as  the 
order  returning  the  plaint  to  be  presented 
to  the  proper  Court  which  it  is  specifically 
empowered  to  pass  by  O.  VII,  r.  10,  and 
orders  as  to  costs  incurred  before  it,  as  to 
which  also  there  is  a  special  provision  in 
s.  3x"  And  again,  "  the  Court  of  first 
instance  had  no  jurisdiction  to  pass  any 
judicial  order  in  the  suit  after  it  had 
once  arrived  at  the  conclusion  that  the  suit 
as  brought  was  beyond  its  jurisdiction 
except  to  return  it  for  presentation  to  the 
proper  Court/1  The  other  learned  J  udge, 
(Oldfield,  J  ,)  does  not  base  his  judgment 
on  these  giounds,  Therefore,  although  if 
I  may  say  so,  1  am  in  entire  agreement  with 
the  extracts  that  I  have  quoted  from  the 
judgment  of  Sadasiva  Iyer,  J.,  and  if  the 
matter  were  res  Integra  to  me  I  should 
certainly  decide  it  in  the  same  manner,  I 
feel  that  I  cannot  distinguish  the  facts  of 
the  present  case  from  Karumbar  Pandra- 
pandaram v.  Audimula  Ponnapundaram 
(1).  Mr.  Chenchiah  endeavoured  to  do  so 
by  saying  that  what  we  have  in  Karumbar 
Pandrapandaram  v.  Audimula  Ponna- 
pundaram (1)  was  practically  two  suits* 
The  plaint  was  returned,  then  the  matter 
dropped  and  then  it  was  amended  and 
presented  again  as  an  entirely  fresh  matter. 
I  do  not  think  that  the  statement  of  the 
facts  as  narrated  by  the  learned  Judge  in 
his  judgment  bears  out  this  distinction. 
The  case  was  referred  to  by  Mr.  J  native 
Sadaaiva  Iyer  and  distinguished  by  him  in 
Kannusami  Pillai  v.  Jagathambal  (2),  It 
may  be  that  it  was  distinguished  on  some- 

'(2)  46  Ind.  Gas,  265;  41  M,  701  at  p,  708,  (1918)  M, 
W.  N,  497;  24  M,  L.  T,  46,  8  L.  W,  145;  35  M,  Lr, 
J.  27. 


802 


VBNKAfA  NAEASlMttA  RAO  V.  HEMADtJ  SURYANARAYANA.  [92  L  0. 


thing  like  the  same  lines  as  I  have  indicat- 
ed. The  learned  Judge  in  distinguishing 
the  case  seems  to  lay  stress  on  the  fact  that 
the  plaintiff  put  in  an  unnecessary  petition 
stating  that  he  relinquished  his  claim  to 
the  first  property.  On  the  whole  and  not 
without  hesitation,  I  have  come  to  the  con- 
clusion that  I  am  bound  by  the  decision 
in  Karumbar  Pandrapandaram  v  Audimula 
Ponnapundaram  (1)  and  that,  therefore, 
this  civil  revision  petition  must  be  dismiss- 
ed with  costs. 
v  N.  v.  Petition  dismissed. 

Z,  K. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  1014  OF 

1924. 

August  24,  1925. 
Present . — Mr.  Justice  Phillips. 
K.  VENKATA  NARASIMHA  RAO- 
DEFENDANT  No.  1— PETITIONER 

versus 

HEMADU  SURYANARAYANA— 
PLAINTIFF— RESPON  DENT. 

Civil  Procedure  Code  (Act  V  of  1008),  s  m,  0  IX 
—Suit,  application  to  restore,  dismissal  of,  for  default 
—  Petition  to  set  aside  dismissal,  maintainability  of 

Proceedings  under  O.  IX,  C.  P  0  ,  i  elate  to  ques- 
tions independent  of  the  suit,  to  be  determined  on 
evidence  as  to  matters  quite  irrelevant  to  the  suit  and 
are,  therefore,  covered  by  s  141,  0  P  C  Order  JX, 
therefore,  applies  to  applications  made  under  ()  IX 
ittelf,  so  tjiat  where  an  application  to  lestore  a  suit  is 
dismissed  for  default,  a  petition  lies  undei  O.  IX  to 
set  aside  the  dismissal. 

Thakur  Prasad  v.  Fakir  Ullah,  17  A  106,  5  M  L.  J. 
3,  22  I  A,  44,  6  Sar  P  C  J.  520,  8  Ind  Dec  (N  s)  393 
(P,  C,),  Bepin  Behan  Saha  v  Abdul  Bank,  35  Ind 
Cas.  613;  44  C.  950,  21  C  W  N.  30,  24  C.  L  J  446, 
Abdul  Rahman  Shah  v.  Shahana,  58  Ind.  Cas.  748;  I 
L  339;  82  P  W.  R  1920,  1  U  L  J  188  and  Lallabhai 
Vajeram  v,  Bai  Magangavri,  18  B,  59,  9  Ind  Dec  (N.  s ) 
548,  relied  on, 

Ramgulam  Singh  v.  Sheo  Deonarain  Singh,  51  Ind 
Cas.  152;  4  P.  L  J.  287,  not  followed 

Petition,  under  s  115  of  Act  V  of  1908, 
praying  the  High  Court  to  revise  an  order 
of  the  Court  of  the  District  Munsif, 
Avanigaooa  at  Masulipatam,  in  M.  P. 
No.  1271  of  1923,  in  I  A.  No.  2641  of  1922,  in 
O.  8.  Ko.  825  of  1921. 

Mr.  P.  Satyanarayana  Rao,  for  the  Peti- 
tioner. 

Mr.  P.  Somasundaram,  for  the  Respond- 
ent. 

JUDGMENT.— The  only  question  that 
arises  here  is  whether  O,  IX  applies  only 
to  suits  or  whether,  by  reason  of  s,  141,  it 


also  applies  to  applications  made  under 
0.  IX  itself,  In  this  case  an  application 
to  restore  a  suit  was  dismissed  for  default 
and  a  subsequent  petition  was  filed  to  set 
aside  that  dismissal.  The  subsequent  peti- 
tion has  been  allowed  and  the  original 
petition  under  0.  IX  is  now  under  en- 
quiry. 

The  contention  for  the  appellant  is  that 
the  Court  has  no  jurisdiction  to  treat  the 
second  application  as  one  to  which  O.  IX 
is  applicable.  In  Thakur  Prasad  v.  Fakir 
Ullah  (J)  it  Mas  laid  down  by  the  Privy 
Council  that  s.  647  of  the  Code  of  1882, 
which  is  equivalent  to  s.  141  of  the  present 
Code,  included  original  matters  in  the 
nature  of  suits  such  as  proceedings  in  pro- 
bates, guard  ianshipfc  and  so  forth  and  did 
not  include  executions.  The  question  at 
issue  in  that  suit  was  whether  execution, 
petitions  were  included  in  that  section, 
and  it  was  definitely  laid  down  that  they 
were  not  so  included.  What  was  held  to 
be  included  were  original  matters  in  the 
nature  of  suits  but  this  statement  is  not 
exhaustive.  It  is  argued  that  an  applica- 
tion under  0.  IX  is  not  an  original  matter 
in  the  nature  of  a  suit.  It  certainly  is 
not  a  petition  in  a  suit,  for  the  suit  is  no 
longer  on  the  file.  It  relates  to  a  question 
quite  independent  of  the  suit  and  one 
which  has  to  be  determined  on  evidence  as 
to  matters  which  would  be  quite  irrelevant 
to  the  suit.  In  this  sense  it  seems  to  me 
to  come  within  the  meaning  of  the  Privy 
Council's  observations  that  s.  647  includes 
original  matters  in  the  nature  of  suits. 
This  view  has  been  taken  by  the  Calcutta 
High  Couit  in  Bepin  Behan  Saha  v.  Abdul 
Bank  (2)  by  the  Lahore  High  Court  in  Abdul 
Rahman  Shah  v.  JShahana  (3)  and  by  the 
Bombay  High  Court  in  Lallabhai  Vajeram 
v.  Bai  Magangavn  (4).  There  is  one  author- 
ity to  the  contrary,  i.  et)  Ramgulam  Singh 
v.  Sheo  Deonarain  Singh  (5)  which  purports 
to  follow  a  Full  Bench  of  that  Court  re- 
ported at  page  135*  of  the  same  volume 
[Bhubaneswar  Prasad  Singh  v.  Tilakdhari 
Lai  (6)1  but  that  Full  Bench  ruling  in 

(1)  17  A.  106,  5  M,  L  J.  3,  22  L  A.  44;   b  Bar,  P.  0, 


J.  526;  8  Ind.  Dec.  (N.  s.)  393  (P  C ). 
(2)  35  Ind.  Cas.  613,  44  C.  950;  21  0. 


0.  b.  J.  446, 

(3)  58  Ind.   Cas.  748;  1  L.  339; 
L.  L.  J.  188, 

(4)  18  B.  59;  9  Ind.  Dec.  (N.  s.)  548. 
51  Ind.  Cas.  152;  4  P.  L.  J.  287. 


W,  N,  30;  24 
P.  W.  B,  1920,  1 


49  Ind.    Caa.  617;   4  P.  L.  J.   135;  (1919)  Pat, 


,L.j;—  [M] 


[92  I.  0. 1926] 


RAMCHANDRA  V.  LAKSHfciAN. 


803 


effect  only  repeated  the  decision  of  the 
Privy  Council  in  Thakur  Prasad  v.  Fakir 
Ullah  (1)  where  the  question  for  determina- 
tion was  whether  an  execution  petition 
would  come  under  0.  IX.  The  Division 
Bench  which  purported  to  follow  the  Full 
Bench  ruling  have  not  discussed  the  ques- 
tion at  length  but  merely  purport  to  follow 
the  Full  Bench  which,  with  all  respect, 
hardly  covered  the  point  in  issue  With 
all  respect,  I  agree  with  the  rulings  I  have 
mentioned  above  and  hold  that  the  Court 
had  jurisdiction  to  entertain  this  petition. 

The  revision  petition  must,  therefore,  be 
dismissed  with  costs. 

v.  N.  v.  Petition  dismissed. 

N.  H. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CIVIL  REVISION  No.  155  OF  1925. 

October  21,  1925. 

Present:— Mr.  Hallifax,  A  J  C. 

RAMCHANDRA- APPLICANT 

versus 

LAKSHMAN  AND  ANOTHER— NON- 
APPLICANTS. 

Civ d  Procedure  Code  (Act  V  of  1908),  0  XXI,  r  02 
— Execution  of  decree — Sale  in  favour  of  pet  son  other 
than  decree-holder — Decree  satisfied,  effect  of 

A  decree  becomes  dead  as  soon  as  it  ib  satisiied  as 
bstwesn  the  parties  to  it,  but  that  cannot  aitcct  the 
vested  rights  of  otheis  [p  804,001.  ].] 

A  a  auction-sale  to  a  parson  other  than  the  decree- 
holder  is  not  affected  by  the  fact  that  the  decree  is 
subsequently  set  aside  on  appeal  01  is  satisfied  after 
the  date  of  the  sale  |p  801,  col,  2] 

Nilkanthv  Yeshwant,  65  Jnd  Gas  331,  18  N  L  K 
134,  A  I.  R  1922  Nag  248,  dissented  from 

MulChand  v  Mukta  Piasad,  10  A  834  A  \V  N 
(1887)287,  6Ind  Dec  (N.  s)  56,  Sonba  v  Ganesha,  17 
Ind  Gas  887,  8  N.  L  R  182  and  Khushalchand  v 
Nandram,  12  Ind  Gas  572,  13  Bom  L  K  977,  35  B 
516,  distinguished 

Zain-ul-Abdm  Khan  v  Muhammad  Asghar  All 
Khan,  10  A.  166,  15  I.  A  12,  5  Sar  P  C  J  129,  6  Ind 
Dec  (N  s)112(P  C),  followed, 

Application  for  revision  against  the  deci- 
sion of  the  District  Judge,  Wardha,  dated 
the  2nd  March -1925,  in  Civil  Suit  No.  51  of 
1923. 

Mr.  M.  -B.  Bobde,  for  the  Applicant. 

Mr.  M.  B.  Niyogi,  for  the  Non- Applicants. 

ORDER,— A  house  belonging  to  Laksh- 
man,  the  first  opponent  of  this  application 
for  revision,  was  put  to  sale  in  execution  of 
a  decree  against  him  by  the  second  oppo- 
nent Vishwanath,  and  was  bought  by  the  ap- 


plicant Ramchandra  on  the  3rd  of  July  1924* 
On  the  9th  of  the  same  month  the  judgment- 
debtor  Lakshman  lodged  an  objection  under 
r  90  of  O.  XXI  of  the  0.  P.  C.  based  on 
allegations  of  irregularities  in  publishing 
and  conducting  the  sale.  The  enquiry 
went  on  till  the  20th  of  December  1924  on 
which  day  orders  on  the  objection  were  to 
have  been  passed  It  is  mentioned  in  the 
case  that  in  the  interval  the  judgment- 
debtor  had  sold  the  house  to  one  Sayaji, 
but  that  fact  does  not  seem  relevant. 

On  the  20th  of  December,  nearly  six 
months  after  the  sale,  a  sum  equal  to  five 
per  cent,  of  the  purchase  money  was  de- 
posited in  Court,  and  the  decree-holder  and 
the  judgment-debtor  informed  the  Court 
that  the  decree  had  been  fully  satisfied. 
The  learned  Judge,  in  accordance  with 
the  decision  in  Nilkanth  v  Yeshwant  (1) 
then  dismissed  the  application  for  execu- 
tion, thereby  setting  aside  the  sale.  The 
appeal  of  the  auction-purchaser  Ramchan- 
diawas  dismissed  by  the  District  Judge, 
who  followed  the  same  ruling,  as  he  was 
bound  to  do,  and  Ramchandra  has  now 
applied  to  this  Court  for  revision  of  that 
judgment. 

Though  the  decision  of  the  matter  in 
Nilkantli  v  Yeshwant  (1)  is  undoubtedly 
correct,  L  am,  with  all  respect,  unable  to 
agree  with  the  reason  stated  for  it.  In  that 
case  the  auction-sale  was  held  on  the  3rd 
of  November  1919,  and  on  the  17th  of  that 
month  the  decree-holder  alone  appeared  in 
Court  and  said  that  he  had  given  the 
judgment-debtor  two  months1  time  for 
payment.  On  the  same  day  a  sum  equal 
to  five  per  cent,  of  the  purchase-money  was 
deposited  in  Court,  whether  by  the  decree- 
holder  or  the  judgment-debtor  is  uncertain 
and  also  immateiial.  The  contract  between 
the  objector  and  judgment-debtor  would 
piobably  have  to  be  regarded  as  full  pay- 
ment of  the  decree  for  the  purposes  of  cl. 
(6)  of  r.  83  (1)  of  O.  XXI,  but  anyhow  the 
balance  was  paid  on  the  25th  of  November 
1919,  which  is  well  within  30  days  of  the 
sale. 

In  that  case  it  was  held  in  the  lower 
Appellate  Court  that  as  the  application 
under  r.  89  had  not  been  made  by  any 
person  having  an  interest  in  the  property! 
the  sale  could  not  be  set  aside  and  the 
Court  was  bound  16  confirm  it.  Kotval, 
A.  J.  C.t  was  inclined  to  the  view  that  an 

(1)  65  Ind.  Cas,  331;  18  N.L.  R.  134;  A.  I,  B,  192? 
Nag.  248. 


804 


application  by  the  judgment- debtor  was 
implied  in  what  actually  took  place.  But 
he  refrained  from  deciding  the  case  on  that 
ground  because  there  was  another  reason 
which  gave  the  pame  result.  My  learned 
brother  said :  "  Where  a  decree  is  admitted 
by  the  decree-holder  to  be  satisfied  it 
ceases  to  exist  as  a  decree  capable  of  execu- 
tion The  very  foundation  of  the  powers 
of  a  Court  to  execute  a  decree,  namely,  the 
existence  of  a  decree  capable  of  execution, 
having  disappeared,  the  Court's  powers  in 
execution  also  cease,  and  confirmation  of 
the  eale  which  is  a  proceeding  in  execution 
cannot  be  ordered  :  vide  Khusalchand  v. 
Nandram  (2)  and  Mul  Chand  v.  Mukta 
Prasad  (3)".  It  may  be  mentioned  that  the 
first  of  these  cases  is  also  published  in 
Volume  35  of  the  Bombay  Series  of  the 
Indian  Law  Reports  at  page  5 16. 

A  decree  is  certainly  dead  as  soon  as  it  is 
satisfied  as  between  the  parties  to  it,  but 
that  cannot  be  allowed  to  affect  the  vested 
rights  of  others.  If  that  view  of  the  law 
is  correct  in  its  application  to  the  present 
case,  or  as  applied  to  that  in  which  it  is 
stated,  then  Art.  166  of  8ch.  I  of  the 
Limitation  Act  is  a  dead  letter  with  re- 
ference to  r  89(1)  of  0.  XXI  of  the  C  P. 
CM  and  indeed  so  is  cl.  (a)  of  that  rule ;  at 
any  time  before  a  sale  is  confirmed,  it  may, 
or  rather  must,  be  set  aside  on  payment  of 
the  decretal  money,  even  after  the  expiry 
of  the  period  of  30  days  from  the  sale 
and  without  payment  of  the  sum  mentioned 
incl.  (a)  of  r,  89(1). 

The  wide  proposition  stated  does  not 
seem  to  me  to  be  supported  by  the  rulings 
cited  nor  by  that  in  Sonba  v.  Ganesh  (4) 
in  which  Stanyon,  A.  J.  C,,  cited  with  ap- 
proval the  Bombay  case  mentioned  by  my 
learned  brother  in  Nilkanth  v.  Yeshwant(l). 
In  Mul  Chand  v,  Mukta  Prasad  (3)  the 
Allahabad  case  mentioned,  the  decree  was  set 
aside  in  appeal  some  months  after  the  sale, 
and  the  purchaser  was  the  decree-holder 
himself.  The  latter  fact,  as  will  be  shown 
later,  distinguishes  that  case  from  this 
even  more  completely  than  the  former. 

Khushalchand  v.  Nandram  (2),  the  Bombay 
case  mentioned,  was  concerned  with  the 
proceedings  of  a  Collector  in  execution, 
and  a  sale  of  the  property  in  his  hands  by 
the  judgment-debtor.  The  statement  of 

(2)  12Ind.  Cas.  572;  13  Bom,  L.  R,  977;  35  B,  516, 

(3)  10  A.  83;  A,  W,  N,  (1887)  287;  6  lad.  Deo,  (K.  B,) 
56. 

(4)  17  lad,  Caa,  887;  6  S,  L,  K,  182, 


RAMOHANDBA  V.  LAK8HMAN.  \V2  L    G.  1926J 

the  proposition  under  discussion  here  was 


obiter  and  the  basis  of  the  decision  was  the 
view  that  the  re-transfer  of  the  case  to  the 
Civil  Court  by  the  Collector  must  relate 
back  to  the  date  on  which,  satisfaction  of 
the  decree  was  certified  to  him,  because 
on  such  certification  he  could  do  nothing 
elee  but  re-transfer  the  case.  I  have  in 
another  case  respectfully  dissented  from 
even  that  view,  but  anyhow  the  decision 
has  no  bearing  on  the  present  case. 

In  Sonba  v.  Ganesh  (4)  the  only  reference 
to  the  Bombay  case  is  as  follows:  "The 
moment  the  decree  is  satisfied  in  or  out  of 
Court,  the  Collector's  power  is  at  an  end, 
and  the  incompetency  to  transfer  created 
by  s.  325- A  of  the  1882  Code  ceases i 
Khushalchand  v.  Nandram  (2)."  This  was  a 
casual  remark  going  beyond  the  matter 
for  decision  in  the  case  itself  and,  taken 
literally,  beyond  the  Bombay  ruling. 

But  the  question  was  settled  long  ago  by 
the  judgment  of  the  Privy  Council  in 
Zain-ul-Abdin  Khanv.  Muhammad  Asghar 
All  Khan  (5)  decided  in  the  same  year  and 
reported  in  the  same  volume  of  the  Indian 
Law  Reports  as  the  Allahabad  case  that  has 
been  discussed.  It  is,  therefore,  not  neces- 
sary to  submit  to  a  Bench  the  question  of 
the  correctness  of  the  officially  published 
ruling  of  thia  Court  in  Nilkanth  v.  Yesh- 
want  (1).  In  that  case  their  Lordships 
held  that  sales,  made  in  execution  of  a 
decree  which  was  set  aside  in  appeal  after- 
wards, must  hold  good  if  they  are  made  to 
a  person  who  was  not  a  party  to  the  decree, 
but  not  if  they  are  made  to  a  decree-holder 
or  a  person  claiming  under  him, 

If  then  the  death  of  a  decree  by  its  being 
set  aside  in  appeal  cannot  be  Allowed  to 
interfere  with  a  sale  under  it  to  a  purchaser 
who  was  no  party  to  it,  still  less  can  it  do 
so  when  its  death  is  due  only  to  its  satisfac- 
tion. The  order  of  the  lower  Appellate 
Court  will  accordingly  be  set  aside  and  the 
sale  will  be  confirmed.  All  the  applicant's 
costs  in  all  three  Courts  will  be  paid  by 
the  opposite  party.  No  costs  were  allowed 
to  the  applicant  in  either  of  the  Courts 
below,  as  the  application  for  execution  was 
dismissed  in  the  first  Court  and  the  appeal 
was  dismissed  without  notice  to  the  re- 
spondents in  the  lower  Appellate  Court,  so 
that  no  Pleader's  fee  has  been  stated,  The 
applicant,  however,  did  engage  a  Pleader  in 
both  the  Courts  below,  and  the  ordinary 


KOYYALAM0DI  SUBBINNA  1?,  KODUHI  SU8BVRAYUDT7, 


[92  1.  0.  1926J 

Pleader's  fee  on  Rs,  1,485,  the  price  paid  by 
applicant  for  the  property,  is  Rs.  71-12-0. 
The  Pleader's  fee  in  this  Court  will  be  a 
hundred  and  fifty  rupees, 
z.  K,  Order  set  aside. 


SOS 


MADRAS  HIOH  COURT. 

LETTERS  PATENT  APPEALS  Nos.  64,  65 

AND  66  OF  1924. 

August  28,  1925. 

Present:— Mr   Justice  Venkatasubba 

Eao  and  Mr.  Justice  Madhavan  Nair. 

KOYYALAMUDI  SUBBANNA  AND 

ANOTHER — DEFENDANTS  Nos.  2  AND  3 

— APPELLANTS 

versus 
KODURI  SUBBARAYUDU  AND  ANOTHER— 

PLAINTIFFS — RESPONDENTS 
Negotiable  Instruments  Act  (XXVI  of  1881),  ss  28, 
29— Pro-note  executed  by  guardian  of  minor — Personal 
liability,  whether  excluded-  Pro-note  executed  as 
executor— Liability,  extent  of— Sections  28  and  29, 
difference  between  • 

On  a  negotiable  instrument  only  the  executant  is 
liable  The  question  that  has  in  each  case  to  be 
determined  is,  on  a  fair  construction,  who  is  the  exe- 
cutant of  the  document9  Is  the  executant  in  truth  the 
principal  although  the  agent's  signature  appears  on 
the  bill  or  is  the  executant  the  agent  although  the 
principal  is  named?  The  intention  may  be  inferred 
from  the  whole  of  the  instrument  |p  806,  col  1  ] 

Under  s  28,  Negotiable  Instruments  Act,  an  agent 
signing  a  pro-note  is  pnma  facie  liable  on  the  note 
but  he  may  exclude  hia  liability  by  indicating  on  the 
note  that  he  signs  as  agent  or  that  he  does  not  intend 
to  incur  personal  liability  In  each  case  the  question 
is,  are  the  words  sufficiently  unequivocal  to  indicate 
that  the  agent  has  not  made  himself  personally  liable  ? 
[ibid'} 

Saction  28  of  the  Negotiable  Instruments  Act  in 
terms  applies  only  to  the  single  case  of  principals 
and  agents,  but  the  principle  of  the  section  is  appli- 
cable to  tha  cases  of  guardians  and  wards  [p  807,  col 

Where  the  guardians  of  a  minor  who  executed  a 
pro-note  on  behalf  of  the  minor  recited  in  the  body 
of  the  note  that  the  debt  was  due  by  the  minor's 
father  and  that  they  were  appointed  guardians  by  him 
but  in  the  operative  part  they  made  themselves  per- 
sonally liable 

Held,  that  their  personal  liability  was  not  clearly 
and  unequivocally  exclud«d  and  the  executants  were 
parsonally  liable,  [ibid  ] 

The  language  of  s  29,  Negotiable  Instruments  Act, 
is  widely  different  from  that  of  8.  28  of  the  Act. 
Firstly,  under  s  28  it '  is  sufficient  to  indicate  that 
personal  liability  is  excluded,  but  under  a,  29  there 
must  bo  express  words  limiting  the  liability  and 
secondly,  under  »,  28  the  agent's,  liability  may  be 


altogether  excluded  whereas  under  s  20  the  execu- 
tor'a  liability  can  only  be  limited  to  the  extent  of  tha 
assets  [p.  807,  col  2  ] 

The  applicability  of  s  20,  Negotiable  Instruments 
Act,  does  not  depend  on  the  question  whether  the 
executant  is  iii  fact  the  legal  representative  of  a 
deceased  person.  It  is  enough  if  the  note  purports  to 
have  been  executed  by  the  executant  in  his  capacity 
aa  legal  representative,  such  as  that  of  an  executor  of 
the  estate  of  a  deceased  person  [p  807,  col.  2  ] 

A  person  who  executes  a  pro-note  as  executor  ap- 
pointed under  a  Will,  is  personally  liable  thereunder, 
unless  he  expressly  limits  his  liability  to  the  extent 
of  the  assets  received  by  him  tts  such  [p  807,  cols  1 
<&2] 

Letters  Patent  Appeals  against  the  judg- 
ment of  Mr.  Justice  Krishnan,  dated  the 
22nd  February  1924,  in  8.  A  Nos  998,999 
and  1000  of  1921,  reported  as  85  Ind.  Cas. 
457,  preferred  against  the  decrees  of  the 
Court  of  the  Additional  Subordinate  Judge, 
RajahmundiT,  in  A  S  Nos  3,  4  and  5  of 
1920,  (A  8  Nos.  152,  153  and  154  of  1919 
District  Couit,  Oodaveii),  0  8  Nos  805, 
781  and  780  of  1917,  Temporary  District 
Munsifs  Court,  Razole  at  Amalapuram 

Messrs.  A  Krishnaswami  /jyer,  B  Sat- 
yanarayana  and  K.  N  Nayagopala  Saslri, 
for  the  Appellants. 

Mr.  P  Somasundaram,  for  the  Respond- 
ents. 

JUDGMENT. 

Venkatasubba      Rao,     J.— These 

three  appeals  have  been  filed  against  the 
judgment  of  Krishnan,  J.  Defendants  Nos. 
2  and  3  are  the  executants  of  the  promissory 
notes  in  question  In  some  notes  they 
described  themselves  as  the  guardians  of 
the  first  defendant,  in  others  as  executors 
under  his  father's  Will.  The  first  defendant 
was  and  continues  to  be  a  minor.  The 
second  and  third  defendants  are  respectively 
the  maternal  uncle  and  the  brother-in-law 
of  the  first  defendant,  The  plaintiffs  in 
these  suits  asked  for  a  decree  against  the 
first  defendant  to  the  extent  of  the  assets  of 
his  father's  estate  and  against  defendants 
Nos.  2  and  3  personally.  It  is  not  neces- 
sary to  say  what  the  decision  of  the  Trial 
Court  was  but  the  Subordinate  Judge  dis- 
missed the  suits  against  defendants  Nos.  2 
and  3  and  passed  decrees  against  the  first 
defendant  to  the  extent  of  the  assets  of  his 
father.  The  plaintiffs  preferred  second 
Appeals  to  the  High  Court  and  Krishnan, 
J ,  in  all  the  three  suits  passed  decrees 
against  defendants  Nos.  2  and  3.  As  the 
first  defendant  had  not  appealed  to  the  High 
Court,  the  decree  against  him  was  not  dis- 
turbed, .Pefoadaats  Nos.  2  and  3  havs 


806 


fcOYYALAMUDf  SUBBANNA  V.  KODURI  SUBBARAYDDU. 


I.  0.  1926) 


filed  the  present  Letters  Patent  Appeals. 
They  contend  that  they  are  not  liable  on 
the  promissory  notes. 

On  a  negotiable  instrument  only  the  exe- 
cutant is  liable.  This  proposition  admits 
of  no  doubt.  The  question  that  has  in  each 
case  to  be  determined  is  on  a  fair  construc- 
tion, who  is  the  executant  of  the  document? 
As  Chalmers  says,  "It  is  often  difficult  to 
determine  whether  a  given  signature  is 
the  signature  of  the  principal  by  the  hand 
of  an  agent,  or  the  signature  of  the  agent 
naming  a  principal".  Section  22,  Law 
of  Bills  of  Exchange,  8th  Edition,  page  91. 

The  law  relating  to  negotiable  instru- 
ments differs  from ,  the  ordinary  law  of 
contracts  in  several  respects.  The  liability 
must  be  determined  on  the  wording  of  the 
note  and  in  each  case  the  question  is:— Is 
the  instrument  so  drawn  in  form  as  to  make 
the  executant  liable  or  the  principal  liable  ? 
In  other  words,  who  is  the  real  executant 
of  the  document?  Is  the  executant  iu  truth 
the  principal  although  the  agent's  signature 
appears  on  the  bill  or  is  the  executant  the 
agent  although  the  principal  is  named  ? 

So  far  as  the  Indian  Law  is  concerned, 
s.  28  of  the  Negotiable  Instruments  Act 
enacts  the  rule  of  law  applicable  to  agents. 
The  material  portion  of  the  section  runs 
thus: — 

"An  agent  who  signs  his  name  to  a  pro- 
missory note.,,  without  indicating  thereon 
that  he  signs  as  agent,  or  that  he  does  not 
intend  thereby  to  incur  personal  responsibi- 
lity is  liable  personally  on  the  instrument11. 

Under  this  section  an  agent  signing  the 
note  prima  facie  is  liable  but  he  may  ex- 
clude his  liability  by  indicating  on  the 
note  that  he  signs  as  agent  or  that  he  does 
not  intend  to  incur  personal  liability.  In 
each  case  the  question  is,  are  the  words 
sufficiently  unequivocal  to  indicate  that 
the  agent  has  not  made  himself  personally 
liable? 

Section  i8  of  the  Indian  Act  is  in  one 
respect  strikingly  different  from  s.  26  of  the 
Bills  of  Exchange  Act,  1882.  The  English 
Act  requires  that  the  words  indicating 
that  the  personal  liability  is  excluded  must 
be  added  to  the  signature  itself.  The  Indian 
Act  is  less  rigorous  and  from  the  whole  of 
the  instrument  the  intention  may  be  infer- 
red. 

The  most  useful  case  on  the  subject  is 
Firm  of  Sadasuk-Janki  Das  v.  Kishan  Per- 


shad  (1).  Their  Lordships  of  the  Judicial 
Committee  point  out  that  as  the  document 
passes  from  hand  to  hand  it  is  of  the  utmost 
importance  that  the  responsibility  is  made 
plain  and  can  be  instantly  recognised.  The 
English  theory  of  bills,  as  Chalmers 
observes  in  his  introduction  to  the  work 
already  quoted,  is  the  banking  or  currency 
theory  and  in  England,  bills  have  develop- 
ed into  a  perfectly  flexible  paper  currency. 
It  follows,  therefore,  that  as  the  note  passes 
from  hand  to  hand  the  real  name  of  the 
person  liable  upon  it  must  be  disclosed. 

In  the  light  of  this  principle,  I  shall 
first  examine  the  promissory  note  in  Letters 
Patent  Appeal  No.  66  of  1924.  The  note  is 
signed  by  the  two  guardians.  Their  repre- 
sentative character  is  not  disclosed  in  the 
signature.  In  regard  to  the  body  of  the 
note,  the  following  points  are  no  do'jbt  in 
favour  of  the  appellants: 

(1)  The  debt  is  mentioned  as  having  been 
originally  due  by  the  minor's  father. 

(2)  It  is  stated  that  their  ward  is  a  minor 
and  that  they  were  appointed  guardians. 

But  the  language  in  the  opening  portion 
of  the  note  is  ambiguous  It  is  suscepti- 
ble of  two  meanings;  literally  it  means  that 
the  guardians  are  executing  the  note  be- 
cause their  ward  is  a  minor  What  maybe 
said  to  be  the  idiomatic  meaning  is,  that  the 
guardians  are  executing  the  note  on  behalf 
of  the  minor. 

In  the  operative  part  of  the  note,  they 
make  themselves  unconditionally  liable. 
They  said  "We  shall  pay,  either  of  us  on 
demand".  Who  are  referred  to  by  this 
word  'We1?  The  words  in  the  preamble 
being  doubtful  and  there  being  no  ambigu- 
ity in  regard  to  the  signature,  the  proper 
view  to  take  is,  that  any  one  reading  the 
note  will  reasonably  connect  the  word  "we*1 
with  the  names  appearing  at  the  bottom  of 
the  note. 

It  is  true  that  the  debt  of  the  minor's 
father  is  mentioned  in  the  body  of  the 
document,  But,  on  this,  does  it  necessarily 
follow  that  the  executants  are  not  personal- 
ly liable  ?  Supposing  the  guardians  had 
been  pressed  for  payment  of  the  debt  and 
they  undertook  to  pay  the  amount  per- 
sonally themselves,  can  it  be  said  that  such 

(1)  50  Ind  Gas  216;  46  C.  663,  29  0,  L.  J.  340;  17 
A.  L.  J  405,  25  M,  L  T.  258,  36  M.  L,  J.  429;  21 
Bom  L.  R  005,  1  IT  P  L.  R  (P.  0.)  37,  (1919)  M.  W. 
N.  310;  23  0,  W,  N,  937,  10  L,  W.  143,  46  L  A.  33 
(P,  0.), 


[92  L  0.  1926  J  KOYYALAMUDI  SUBBANNA  V.  KODURI  SUBBARAYCDU, 


807 


a  note  as  the  present  could  not  have  been 
passed  ?  In  my  opinion,  a  mere  allusion  to 
the  pre-existing  debt  does  not  clinch  the 
question.  On  the  whole,  I  think  that  the 
wording  does  not  clearly  and  unequivocal- 
ly exclude  the  personal  liability  of  the  exe- 
cutants and  that  Krishnan,  J/s  decision  in 
regard  to  this  note  must  be  upheld. 

Before  passing  on  to  the  next  note,  I 
desire  to  make  one  observation.  Unlike  s. 
26  of  the  English  Act  which  deals  general- 
ly with  the  liability  of  persons  signing  in 
any  representative  capacity,  s.  28  of  the 
Indian  Act  in  terms  applies  only  to  the 
single  case  of  agents  and  principals.  But 
it  seems  to  me  that  there  is  no  reason  to 
make  the  scope  of  the  section  so  narrow  and 
indeed  their  Lordships  of  the  Judicial  Com- 
mittee in  the  case  already  quoted,  Firm 
of  Sadasuk  Janki  Das  v  Ktshan  Pershad 
(1),  first  state  the  principles  as  of  general 
application  and  then  proceed  to  say  that  the 
sections  of  the  Negotiable  Instruments  Act 
contain  nothing  inconsistent  with  those 
general  principles.  la  Ramaswami  Mudahar 
v  Muthuswami  Ayyar  (2)  and  the  unreport- 
ed  Appeal  No  306  of  19.'2  on  the  file  of  the 
High  Caurt,  the  principle  of  s  28  is  tacitly 
assumed  to  be  applicable  to  cases  of  guard- 
ian and  ward. 

Now  I  pass  on  to  the  note  in  Letters  Patent 
Appeal  No.  65  of  1924  This  bears  a  very  close 
resemblance  to  the  note  which  I  have  just 
dealt  with.  But  there  is  a  striking  difference 
in  one  particular,  thatm  the  signature  por- 
tion it  is  made  to  appear  that  the  guardians 
are  signing  the  note  on  behalf  of  the  minor. 
The  point  is  thus  left  no  longer  in  doubt, 
and  on  a  construction  of  the  note,  I  find 
that  the  guardians  have  clearly  indicated 
that  they  did  not  intend  to  incur  personal 
responsibility.  In  my  opinion,  therefore, 
Krishnan,  J.'s  decision  in  regard  to  this 
note  is  wrong,  and  cannot  be  supported. 

I  shall  next  deal  with  the  promissory  notes 
in  Letters  Patent  Appeal  No  61  of  1924.  To 
my  mind,  these  present  no  difficulty  The 
appellants  do  not  describe  themselves  as 
guardians  but  as  executors  and  the  section 
that  applies  is  s.  29  of  the  Negotiable  In* 
struments  Act.  The  relevant  portion  of 
that  section  is  as  follows: — 

"A  legal  representative  of  a  deceased 
person  who  signs  his  name  to  a  promissory 
note,,, is  liable  personally  thereon  unless  he 

(2)  30  lud.  Oas,  481, 


expressly  limits  his  liability  to  the  extent 
of  the  assets  received  by  him  as  such  " 

The  language  of  s.  20  is  widely  differ- 
ent from  that  of  a.  28.  In  the  first  place, 
under  s.  28  it  is  sufficient  to  indicate  that 
personal  liability  is  excluded.  Under  8  29 
there  must  be  express  words  limiting  the 
liability  Secondly,  under  s  28  the  agent's 
liability  may  be  altogether  excluded  but 
under  s  29  the  executor's  liability  can  only 
be  limited  to  the  extent  of  the  assets. 

These  notes  purport  to  have  been  execut- 
ed by  the  appellants  in  their  capacity  as 
executors.  When  s.  29  specifically  deals 
with  the  case,  it  is  not  permissible  to  invoke 
the  principle  of  s.  28.  The  appellant's 
learned  Vakil  has  contended  that  his  clients 
were  not  in  fact  executors  because  the 
minor's  father  could  not  have  made  a  valid 
appointment  of  executors  Granting  this 
to  be  so,  it  does  not,  in  my  opinion,  make 
the  slightest  difference.  We  are  concerned 
not  with  the  fact  whether  they  are  exe- 
cutors but  only  whether  they  have  describ- 
ed themselves  as  executors.  It  is  not  to  be 
expected  that  when  the  paper  passes  from 
hand  to  hand  every  suscessive  holder  is  to 
satisfy  himself  as  regards  the  truth  of  the 
statement  in  the  note,  and  I  am  not  prepar- 
ed to  accept  the  contention  that  the  section 
has  no  application  unless  the  executant 
happens  to  be  in  fact  a  legal  representative.  I 
am,  therefore,  of  the  opinion  that  Krishnan's 
judgment  in  regard  to  this  note  is  right 
and  must  accordingly  be  confirmed. 

I  feel  that  it  is  necessary  that  I  must  add 
one  word.  The  lower  Court  has  passed  a 
decree  against  the  minor  and  he  has  not 
filed  an  appeal  challenging  its  correctness. 
We  are,  therefore,  not  concerned  with  the 
propriety  or  otherwise  of  the  decree  against 
the  minor.  But  nevertheless  it  seems  to  me 
that  although  the  agent  is  personally  liable 
on  the  note,  there  is  nothing  to  prevent  the 
Court  from  passing  a  decree  against  the 
minor  himself  provided  that  the  plaint  ia 
framed  in  an  alternative  form  suing  the 
guardian  on  the  note  and  the  minor  alter- 
natively on  the  consideration  .  see  Firm  of 
Sadzsuk  Janki  Das  v.  Krishan  Pershad  (1) 
and  Krishna  Ayyar  v  Krishnasami  Ayyar 
(6)  This  question,  however,  does  not  here 
arise  and  need  not  be  pursued  further. 

I  may  state  in  conclusion  that  Mr.  Alladi 
Knshnaswami  Iyer,  the  learned  Vakil  for 
the  appellants,  desired  to  raise  a  new  point, 

(3)  23  M.  597;  8  Ind,  Deo,  (N  s,)  119, 


803 


KOYYALAMTOI  SOBBANN1  V.  KODUftl  StTBBARATUDU.  [92  I,  0.  192flj 


one  relating  to  rule  of  election  as  laid 
down  in  French  v.  Howie  (4)  and  Moore  y. 
Flanagan  (5)  but  that  we  did  not  permit 
him  to  raise  this  point  as  he  did  not  raise  it 
before  Krishnan,  J.,  and  attempted  to  do 
80  for  the  first  time  before  us. 

The  result  is  that  Letters  Patent  Appeals 
Nos.  64  and  66  of  1924  are  dismissed  with 
costs  and  Letters  Patent  Appeal  No.  65  of 
1924  is  allowed  and  the  suit  dismissed 
with  costs  throughout  against  defendants 
Nos.  2  and  3. 

Madhavan  Nalr,  J.— These  Letters 
Patent  Appeals  are  directed  against  the 
decision  of  Krishnan,  J.,  in  three  second 
appeals  which  arose  out  of  suits  instituted 
by  the  plaintiffs  for  the  recovery  of  the 
money  due  to  them  on  promissory  notes 
executed  by  defendants  NOB.  2  and  3. 
The  first  defendant  is  the  minor  son  of  one 
Veeranna  who  died  leaving  debts.  Though 
the  property  belonging  to  him  is  joint 
family  property,  Veeranna  nevertheless 
executed  a  Will  naming  defendants  Nos.  2 
and  3  as  executors.  Though  the  docu- 
ment is  invalid  so  far  as  it  purported  to 
deal  with  joint  family  property,  defendants 
Nos.  2  and  3  entered  upon  the  management 
under  the  Will  and  executed  the  various 
suit  promissory  notes  to  Veeranna's  credi- 
tors. The  plaintiffs  in  these  suits  claimed 
decrees  against  defendants  Nos.  2  and  3 
personally  as  the  makers  of  the  promissory 
notes  and  against  the  estate  of  the  first 
defendant.  The  District  Munsif  gave  a 
decree  against  defendants  Noa.  2  and  3 
personally  and  dismissed  the  suits  against 
the  minor's  estate.  Both  the  plaintiffs 
and  defendants  Nos,  2  and  3  preferred 
appeals  to  the  Subordinate  Judge  who 
gave  decrees  against  the  estate  of  the 
minor  dismissing  the  suits  against  de- 
fendants Nos.  2  and  3.  The  minor,  i.e., 
the  first  defendant,  did  not'  appeal  to 
the  High  Court  but  the  plaintiffs  pre- 
ferred second  appeals  claiming  personal 
decrees  against  defendants  Nos.  2  and  3. 
The  learned  Judge,  Krishnan,  J  ,  set  aside 
the  decrees  passed  by  the  Subordinate 
Judge  with  the  result  that  the  plaintiffs  in 
the  High  Court,  succeeded  in  obtaining 
decrees  against  defendants  Nos.  2  and  3 
personally. 

(4)  '19W  2  K.  B    67 1;  73  L.  J.  K.  B.  980;  93  L    T. 

274. 

(3)  (1920;  1  K.  B.  910,  S9  L,  J,  K.  B,  417;  132  L,  T. 

739, 


The  question  for  determination  in  all 
these  Letters  Patent  Appeals  is  the  same, 
namely,  whether  defendants  Nos.  2  'and  3 
are  personally  liable  under  the  suit  promis- 
sory notes. 

L.  P.  A.  No.  64  OP  1924. 

As  there  is  some  difference  in  the  langu- 
age of  the  promissory  notes  in  the  various 
suits  and  as  the  argument  advanced  by  the 
learned  Vakils  on  both  sides  had  reference 
to  the  language  it  will  be  useful  to  refer  to 
these  promissory  notes  at  the  very  com- 
mencement. Exhibits  A,  B,  E  and  F  are  the 
four  promissory  notes  in  this  Letters  Patent 
Appeal  against  Second  Appeal  No.  998  of 
1921.  Exhibit  A  states  in  its  preamble 
that  it  is  "executed  by  Subbanna  and 
Satyanarayana  (defendants  Nos.  2  and  3) 
jointly  as  executors  appointed  in  accordance 
with  the  registered  Will  of  the  late  Chinna 
Veeranna,  his  son  Viswanathan  being  a 

minor n    In  its  body  it  states,  "on 

demand  we  promise  to  pay  to  you  or  to 
your  order  the  sum  of  Rs  113-2-0  only  the 
amount  borrowed  to  serve  our  need,  i.  e., 
the  amount  we  have  agreed  to  pay  on 
behalf  of  the  aforesaid  Chinna  Veeranna... 

"    This  promissory  note  is  signed  by 

the  two  defendants  without  the  qualifica- 
tion as  executors  being  added  to  their 
signatures.  Exhibit  B  is  similar  to  Ex.  A 
except  that  in  its  body  the  statement  "the 
amount  we  have  agreed  to  pay  on  behalf 
of  the  aforesaid  Chinna  Veeranna1*  is 
absent.  It  simply  says,  "on  demand  we 
promise  to  pay  to  you  or  to  your  order  the 
sum  of  Rs.  585-10-6  only  the  amount  bor- 
rowed to  serve  our  need,  i.  e.,  the  amount 
of  principal  and  interest  on  the  promissory 
note  executed  by  the  late  Chinna  Veeranna.11 
The  preamble  of  Exs.  E  and  F  are  similar 
to  those  of  Exs.  A  and  B,  with  this  differ- 
ence that  in  the  preamble  of  Ex.  F  "his 
son  Viswanatham  being  a  minor"  is  absent. 
In  the  body  of  these  two  promissory  notes, 
Exs.  E  and  F,  we  find  the  expression 
"We  both  individually  promise  to  pay  to 

you  or  to  your  order  the  sum  of  Rs " 

which  does  not  appear  in  EKS,  A  and  B. 
These  promissory  notes  run  thus:  "We  both 
individually  promise  *to  pay  to  you  or  to 

your    order     the     sum    of    Rs on 

the  promissory  note  executed  by  the  late 
Ohinna  Veeranna."  In  the  aignature  por- 
tion of  ail  these  promissory  notes  the  names 
of  defendants  Nos.  2  and  3  appear  without 
qualification,  Though  these  promts- 


KOYYALAMUDI  8COBANNA  V   KODURI  BUBBARAYttDtT, 


[92  1.  0, 1928J 

Bory  notes  thus  present  some  special  fea- 
tures, they  agree  in  this  respect  that  each 
of  them  is  stated  in  the  preamble  to  have 
"been  executed  by  defendants  Nos.  2  and  3 
"as  executors"  and  signed  by  them  without 
disclosing  their  representative  capacity. 

Mr,  Krishnaswami  Iyer,  the  learned  Vakil 
for  the  appellants  argues  that  the  language 
used  in  these  promissoiy  notes  distinctly 
shows  that  the  appellants  have  not  under- 
taken any  personal  liability  to  pay  the 
promissory  note  debts  and  that  the  learned 
Judge  was  wrong  in  applying  s  2i)  of  the 
Negotiable  Instruments  Act  in  deciding 
this  case,  inasmuch  as  it  is  clear  that 
defendants  Nos.  2  and  3  cannot  in  law  be 
considered  executors  as  the  deceased 
Veeranna  had  no  power  to  execute  a  Will, 
the  property  being  joint  family  property. 
Section  29  being  inapplicable  and  the 
language  of  the  documents  showing  that 
there  was  no  personal  liability,  the  learned 
Vakil  argues  on  the  analogy  of  various 
decisions  which  he  has  brought  to  our 
notice  that  in  this  e-ase,  the  only  decree 
that  could  be  passed  is  one  against  the 
estate  of  the  deceased  Veeranna. 

The  important  question  for  consideration 
is  whethei  s.  29  of  the  Negotiable  Instru- 
ments Act  applies  to  this  case.  Section  29 
runs  as  follows: — "A  legal  representative  of 
a  deceased  person  who  signs  his  name  to 
a  promissory  note,  Bill  of  Exchange  or 
cheque  is  liable  personally  thereon,  unless 
he  expressly  limits  his  liability  to  the 
extent  of  the  assets  received  by  him  as 
such/1  The  term  *  legal  representative11 
includes  executors  or  administrators.  If 
this  section  is  applicable,  defendants  Nos.  2 
and  3,  are  liable  personally  on  these 
promissory  notes,  as  they  say  in  the 
preamble  of  the  notes  that  they  have 
executed  them  "jointly  as  executors  ap- 
pointed in  accordance  with  the  registered 
Will  of  the  late  Ohinna  Veeranna.'1  The 
argument  that  defendants  Nos.  2  and  3 
are  not,  strictly  speaking,  executors  and, 
therefore,  s.  29  is  inapplicable,  cannot  be 
accepted;  for  we  are  dealing  with  promis- 
sory notes  and  it  is  well  known  that  those  are 
intended  to  pass  freely  from  hand  to  hand 
and  a  party  who  takes  a  negotiable  instru- 
ment of  the  class  we  are  dealing  with  is  not 
expected  to  decide  for  himself  whether  the 
person  who  has  executed  the  instrument  in 
his  capacity  as  an  executor  is  really  an 
executor  iu  the  eye  of  the  law  or  not, 


before  accepting  the  note,    If  this  principle 
is  not  given  effect  to,  the  very  object  of  a 
negotiable  instrument    would  be  defeated. 
Defendants  Nos,  2  and  3  having  desciibed 
themselves    as  executors,  persons    dealing 
with  them  on  the  promissory  notes    will 
naturally  treat  them  as  executors,  and  the 
promissory  notes   will  be  passed  on  from 
hand  to  hand  distinctly  on  that  understand- 
ing.   It  is,   necessary,  therefore,  that  s.  29 
should  bo  applied  in  a  case  like  the  present 
one,  and  if  so,  defendants  Nos.  2  and  3  are 
clearly  liable  personally,   unless   they  are 
able  to    show    that    they    have    expressly 
limited  their    liability  in    original   to  the 
extent    of    the    assets    received    by  them 
as  such.    The    language  of  the    promis- 
sory notes    that  I    have  already    referred 
to  speaks  with  no  uncertain  voice.    In  none 
of  them   is  the  liability  of  the  executants 
expressly  limited  in  any  way  to  the  extent 
of  the   assets    received   by  them  as  such 
while    in   all  of  them   there  is  a  distinct 
promise   to  pay  made   by   the  executants. 
The  cases  cited  by  Mr.  Krishnaswami  Ijer 
in  this  connection  need   not    be  considered 
in  detail,   as  most  of  them   deal  with  the 
question  how  far  can  recourse  be  had   to 
the  estate  on  notes  executed  by  an  executor, 
or  guardian  of  h   minor,  or  trustee    of    a 
property     The  decisions  in  Padma  Krishna 
Chettiar  v.   Nagamam  Ammal  (6),   Batchu 
Ramajogayya  v.  Vajjula   Jagannadham   (7) 
and  .1  mmaluAmmatv  Namagiri  Ammal  (8) 
and  the  other  cases   cited    by  him  du   not 
deal  with  the  question  with   which   we   are 
here  concerned     As  the  executants  of  the 
promissory  notes  in  question  have   not   in 
any  way  expressly  limited  their  liability   to 
their  extent  of  the  assets  received  by  them, 
I  must  hold  that  s.  29  of  the  Negotiable 
Instruments  Act  applies  to  this  case  and 
that  the  decision   of  the  learned  Judge  is 
right.    I  dismiss  this  Letters  Patent  Appeal 
with  costs. 

L.  P.  A.  No.  65  OP  1924. 

The  language  of  the  promissory  notes  in 
these  appeals  is  different  from  the  langu- 
age of  the  notes  already  examined.  The 
preamble  speaks  of  these  notes  as  pro- 
missory notes  executed  "by  guardians  under 


(6)  30  Ind  Gas  574,  39  M  915,  18  M  L.  T  216. 

(7  49  Ind  Oaa  872;  42  M  185,  25  M  L  T  23;  9  L. 
W  229,  36  M  L  J  29,  (1919)  M  W  N  148  (F  B.). 

(8)  43  lid  Pas  760,  33  M  L  J  631;  22  M,  L.  T 
391  6L  W  722;U918)M,  W  N.110. 


810 


VINA  YAK  V.  KAN IRA  M. 


[92  I.  0.  19*6] 


the  Will  of  the  lateVeeranna,  as  Viswana- 
tham  happens  to  be  a  minor. 

In  L.  P.  A.  No.  66  the  body  of  the  note, 
amongst  other  things,  contains  the  statement 
that  "On  demand  the  amount  of  principal  and 
interest  accrued  upto  date...  .will  be  paid 
by  either  of  us".  In  this  appeal  the  two 
executants  signed  the  promissory  note  with 
their  names  without  describing  themselves 
as  guardians  The  language  of  the  pro- 
missory note,  Ex,  A,  which  I  have  noticed 
above  distinctly  shows  that  the  executants 
intended  to  incur  personal  liability  on 
this  note.  Though  there  is  no  specific  pro- 
vision in  the  Negotiable  Instruments  Act 
regarding  the  liability  of  a  guardian  on  a 
promissory  note  executed  by  him,  it  seems 
to  me  that  the  principle  underlying  s.  28 
regarding  the  liability  of  an  agent  signing 
a  promissory  note  may  well  be  applied  to 
such  a  case.  Section  28  of  the  Act  deals  only 
with  the  case  of  agents  and  principals,  in 
this  respect  differing  from  s.  26  of  the 
English  Act  which  deals  generally  with  Ithe 
liability  of  persons  signing  in  a  representa- 
tive capacity.  In  two  decisions  of  this 
Court  the  principle  underlying  s.  28  of  the 
Negotiable  Instruments  A.ct  has  been  appli- 
ed in  deciding  on  the  liability  of  a  guardian 
executing  a  promiseorynote  on  behalf  of  the 
minor.  In  Ramaswami  Mudaliar  v.  Mutku- 
swami  Iyer  (2)  the  second  defendant  in  the 
case  was  described  in  the  body  of  the  note 
as  the  guardian  of  the  first  defendant  who 
was  at  its  date  a  minor,  and  the  necessity 
for  borrowing  was  stated  in  it  as  arising 
from  the  first  defendant's  father's  debt. 
The  learned  Judges  state,  "  We  are  not,  how- 
ever, prepared  to  treat  these  facts  alone  as 
sufficient  to  indicate  that  second  defendant 
signed  as  first  defendant's  guardian  or  did 
not  intend  to  incur  personal  liability11.  The 
second  defendant  was,  therefore,  held  liable 
on  the  promissory  note.  The  extract  from 
the  judgment  shows  that  the  learned  Judges 
in  deciding  the  case  have  assumed  that  the 
principle  of  s.  28  of  the  Negotiable  Instru- 
ments Act  is  applicable  to  the  case  of  the 
guardian  and  ward.  (See  also  the  unreport- 
ed  decision  in  A.  S.  No.  306  of  1922  on  the 
file  of  the  High  Court),  The  decision  of  the 
Privy  Council  in  Firm  of  Sadasuk  Janaki 
Das  v.  Kishan  Pershad  (1)  supports  the  view 
that  a  general  application  can  be  given  of 
the  principle  underlying  s.  28  of  the  Negoti- 
able Instruments  Act.  Defendants  Nos.  2 
and  3  in  this  case  have  not  indicated  that 
they  signed  the  promissory  note  as  agents 


or  that  they  did  not  intend  to  incur  person- 
al liability.  On  the  other  hand,  the  langu- 
age of  the  promissory  note,  in  my  opinion, 
distinctly  shows  that  they  are  personally 
liable.  The  decision  of  the  learned  Judge 
is,  therefore,  right  and  this  Letters  Patent 
Appeal  No.  (56  should  be  dismissed  with 
costs. 

INL.  P.  A.  No.  65  OP  1924. 

In  this  appeal  the  language  used  in  the 
preamble  and  in  the  body  of  the  promis- 
sory note  indicating  the  liability  of  defend- 
ants Nos.  2  and  3  is  like  the  language  in  the 
promissory  note  in  Letters  Patent  Appeal 
No.  66,  but  the  executants  in  signing 
the  promissory  note  describe  themselves 
in  the  signature  portion  as  ''guardians 
of  minor  Viswanatham1',  This  is  a  dis- 
tinctive feature  of  this  note  and  in  this 
respect  it  differs  from  the  promissory  note 
Ex.  A  just  noticed.  When  we  read  the  pro- 
missory-note bearing  this  feature  in  mind, 
the  conclusion  is  irresistible  that  the  execu- 
tants have  signed  this  note  merely  as  guard- 
ians excluding  thereb}^  their  personal 
liability.  It,  therefore,  follows,  that,  on  the 
language  of  this  note,  defendants  No.  2  and 
3  are  not  personally  liable.  As  the  construc- 
tion that  I  am  putting  on  the  language  of 
this  promissory  note  is  different  from  that 
given  to  it  by  the  learned  Judge,  the 
decision  in  Second  Appeal  No  999  of  1921 
must  be  set  aside.  The  plaintiff  in  this  case 
will  only  be  entitled  to  a  decree  against  the 
minor's  estate  and  not  against  the  guardians 
personally.  This  Letters  Patent  Appeal  is 
allowed  with  costs  throughout. 

As  pointed  out  by  my  learned  brother, 
we  have  not  allowed  the  learned  Vakil  for 
the  appellants  to  argue  a  new  point  which 
he  desired  to  raise  in  these  appeals. 

v.  N.  v.  Appeal  No.  65  allowed. 

z.  K.        Appeals  Nos.  64  and  66  dismissed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  440  OP  19 ?4. 

December  1,  1925. 

Present:— Mr.  Findlay,  Officiating  J.  0. 

VINA  YAK— PLAINTIFF — APPELLANT 

versus 

KANIRAM  AND  ANOTHER — DEPENDANTS- 
RESPONDENTS. 
Civil  Procedure  Code  (Act  V  of  1908),  0,  XXI,  r.  68 


[92  I.  O.  1926  J 


VINAYAK  t).  KANIRAM. 


811 


— Attachment,  objection  to,  dismissal  of —Title  suit— 
Fraudulent  transfcr-^Consideratwn— Possession—Good 
faith — Burden  of  proof — Intention  to  defeat  creditois 
— Transferee  not  party  to  fraud,  effect  of 

Where  an  objection  to  an  attachment  of  certain 
property  in  execution  of  a  decree,  by  a  person  claim- 
ing to  be  a  transferee  of  the  property  from  the  judg- 
ment-debtor, is  dismissed  on  the  ground  that  the 
transfer  was  intended  to  defeat  the  ci  editors  of  the 
judgment-debtor  and  was  fraudulent,  and  the  un- 
successful objector  brings  a  suit  to  establish  his  title 
to  the  property,  the  burden  lies  upon  him  of  pioving 
not  merely  the  passing  of  adequate  consideration  and 
his  possession  over  the  property  but  also  his  own  good 
faith  [p.  812,  col  2,] 

Where,  however,  consideration  and  possession  are 
established  a  much  lighter  burden  lies  on  the  plaintiff 
with  regard  to  the  establishment  of  good  faith  [p  813, 
col  1,] 

In  such  a  case,  however,  the  all  essential  point  is 
whether  the  plamtift  was  a  party  to  the  fraud  on  the 
creditors  An  intention  to  defeat  the  creditors  may 
well  exist  on  the  part  of  the  transfeior,  and  yet  the 
transfer  will  be  valid  unless  the  transferee  was  also  a 
party  to  the  fraud,  [ibid  ] 

Appeal  against  a  decree  of  the  District 
Judge,  Bhandara,  dated  the  24th  July  1924, 
in  Civil  Appeal  No.  35  of  1924. 

Messrs  M.V.  Abhyankar&ndA.  V  Wazal- 
war,  for  the  Appellant. 

Sir  B.  K.  Bose,  for  the  Respondents. 

JUDGMENT*— The  plaintiff-appellant 
sued  the  defendants-respondents  for  a  de- 
claration that  the  3annas  Gpiesshare  inMouza 
Tadgaon  and  10'40  acres  of  mahk  makbuza 
land  in  the  same  village  are  not  liable  to 
attachment  and  sale  under  the  decree  ob- 
tained by  the  defendant-respondent  Kani- 
ram  in  Civil  Suit  No.  47  of  1922  against 
one  Garu  Patel.  The  plaintiff-appellant  had 
unsuccessfully  objected  to  the  attachment  in 
the  execution  proceedings  The  plaintiff's 
case  is  that  he  bought  the  property  in  'suit 
under  a  sale-deed,  dated  21st  June  1922, 
from  Karu  Patel  for  Rs.  10,000  The  defend- 
ants pleaded  that  the  alleged  sale  in  favour 
of  the  plaintiff  by  Karu  was  a  fraudulent  and 
collusive  one,  intended  to  defeat  the  credit- 
ors of  Karu.  They  also  pleaded  that  the 
sale  was  without  consideration  and  that 
there  was  no  pressing  necessity  on  Karu 
to  dispose  of  his  property  as  he  did. 

The  Subordinate  Judge  found  that  Karu 
had  duly  executed  the  sale-deed  in  question 
in  the  plaintiff's  favour.  He  also  found  that 
out  of  the  consideration,  Rs.  3,516  in  cash 
had  been  paid  before  the  Sub-Registrar  and 
that  the  plaintiff  had  paid  off  two  instal- 
ments of  the  mortgage-deed  executed  by 
Karu:  c/.,  receipts  P-2  and  P-3.  In  fact, 
the  first  Court's  finding  so  far  was  that  con- 
sideration had  been  paid  in  the  manner 


mentioned  in  the  sale-deed.     On  the   ques 
tion  of  possession  the  finding  of  the  Sub- 
ordinate Judge  was  a  somewhat  halting  one 
At  the  end  of  para   6  of   his  judgment  he 
tells  as  follows-  — 

"The  plaintiff  also  proves  from  the  entries 
in  his  account  books  that  he  spent  some 
money  and  grainfor  the  cultivation  of  lands 
in  Tadgaon,  and  his  witnesses  Nos  3,  4  5, 
7,  8  and  9  and  he  himself  as  P.  W  No  1 
depose  that  Karu's  lands  have  been  in  pos- 
session of  plaintiff." 

Thereafter  in  para.  7  of  his  judgment  the 
Subordinate  Judge  went  on  to  find  thatmuta- 
tion  had  been  effected  in  the  plaintiff's  favour 
but  that  his  name  was  subsequently  struck 
off  by  the  Tahsildar  when  the  plaintiff's 
objection  in  the  execution  proceedings  fail- 
ed. On  the  evidence  of  the  Revenue  Inspec- 
tor also  the  Subordinate  Judge  held  that 
had  it  not  been  for  the  failure  of  the  objec- 
tion, the  plaintiff's  name  would  have  appear- 
ed in  the  khasra  and  mutation  register.  Thus 
having  held  that  the  plaintiff  had  proved 
that  he  was  in  possession  of  the  property  he 
purchased,  the  Subordinate  Judge  went  on 
to  point  out  that  consideration  and  posses- 
sion were  not  the  only  tests  of  the  genuine- 
ness of  a  transaction  like  the  present  From 
this  point  of  view  he  considered  the  follow- 
ing circumstances  suspicious- — 

(a)  that   there  was  no  reason  given  for 
Karu's  subsequently  selling  the  pioperty, 

(b)  that  he  only  retained  a  few  acres  of 
occupancy  land,    a  house  and  a  kotha,  as 
well  as  a  right  to  occupy  the  sir  lands  on  the 
expiry  of  the  5  years1   lease  he    granted  to 
the  plaintiff; 

(c)  that  the  plaintiff  had  not  made  any 
enquiries  as  to  the  necessity  for  Karu's  sell- 
ing the  property,  as  to  whether  it  was    an- 
cestral property  and  the  like, 

(d)  that   the    financial    embarrassment^ 
of  Karu  at  the  time  did  not  justify  the  sale. 
In    particular    the   mortgage- deed  was  an 
instalment    one    while   the    other  creditor 
Atmaram   had   only  some   Rs.  1,500  due  to 
him, 

(c)  that  the  sale  transaction  was  carried 
through  in  a  hurried  and  hole  and  corner 
manner,  and 

(/)     that  Karu  and  plaintiff  are  relatives. 

On  these  and  connected  findings  the  Sub- 
ordinate Judge  held  that  the  sale  in  favour 
of  the  plaintiff  was  a  collusive  and  fraudu- 
lent transaction  and  accordingly  dismissed 
the  suit. 


812 


VLVAYAKV,    KAKIRAM. 


The  plaintiff  appealed  to  the  Court  of 
the  District  Judge,  BUandara.  The  District 
Judge  reversed  the  finding  of  the  Subordi- 
nate Judge  regarding  consideration  and 
held  that  no  consideration  had  in  reality 
passed  from  the  plaintiff  to  Kara,  He  like- 
wise held  that  possession  of  the  property 
also  had  not  passed  to  the  plaintiff. 

The  judgment  of  the  District  Judge,  how* 
ever,  is  one  which  it  is  exceedingly  difficult 
to  appreciate  in  its  present  form.  In  arriv- 
ing at  the  findings  he  does,  as  regards 
consideration  and  possession,  he  relies  appa- 
rently entirely  on  the  more  general  as- 
pects of  the  alleged  sale  transaction. 
That  transaction  he  describes  as  having 
been  carried  out  in  a  romantic  way; 
whatever  this  adjective  may  mean  in  this 
connection.  He  lays  great  stress  on  the  fact 
that  there  was  no  enquiry  made  about  the 
debt  due  by  Karu  on  the  incumbrances  on 
the  property.  He  also  is  gieatly  influenc- 
ed by  the  fact  that  the  sale  was  carried  out 
hurriedly  and  h3  seems  to  hold  that  arbi- 
trary prices  were  put  on  the  various 
subjects  which  passed.  He  also  lays  stress 
on  the  fact  that  the  vendor  and  vendees 
were  relations  and  that  other  relations  and 
interested  parties  assisted  in  the  negotiations 
and  the  transaction  The  District  Judge  held 
that  although  the  amount  of  Us.  3,5H>  12  0 
was  paid  to  Kara  before  the  Sub  Registrar, 
this  was  a  mere  nominal  payment  intended 
to  give  an  air  of  reality  to  the  transaction. 
On  these  and  other  findings  the  District 
Judge  confirmed  the  dismissal  of  the  suit 
by  the  first  Court. 

In  a  case  like  the  present  it  is  un- 
fortunate that  there  is  no  indication  what- 
ever in  the  District  Judge's  judgment 
on  whom  he  regarded  the  onus  of  proof  as 
lying  in  the  present  case.  This  was  an  all 
essential  matter  to  be  primarily  determin- 
ed. Admittedly,  the  burden  of  proof  as 
regards  consideration  primarily  rested  on 
the  plaintiff,  The  first  Court,  however,  held 
that  that  burden  had  been  discharged,  for  it 
gave  a  finding  that  consideration  had  duly 
passed.  A  further  question  arises,  however, 
as  to  on  whom  the  burden  of  proof  rested 
after  the  passing  of  consideration  had  been 
held  proved  by  the  first  Court,  On  behalf 
of  the  appellant  it  has  been  urged  that  con- 
sideration having  been  established,  and 
particularly  as  the  Subordinate  Judge  held 
that  possession  had  also  passed,  the  burden 
of  proof  shifted  on  to  thft  respondents  of 
showing  that  tUe  sale  transaction  was  a 


[921.0.1926] 

fraudulent  and  collusive  one.  The  decision 
in  Mahomed  Haneef  Meajee  v.  Uozhur  Ali 
(l)  is  not  peculiarly  apposite  in  the  present 
connection.  There  it  was  the  vendor  him- 
self who  asserted  that  he  had  not  received 
the  consideration  although  he  admitted 
receipt  before  the  Registrar  In  those  cir- 
cumstances naturally  a  heavy  on  us  rested  on 
the  plaintiff  before  he  could  hope  to  avoid 
the  effect  of  his  own  admission.  A  similar 
remark  applies  to  the  decision  in  Sham 
Chand  Pal  v.  Protap  Chand  Pal  (2)  and 
that  in  Ali  Khan  Bahadur  v  Indar  Parshad 
(3).  Had  the  present  suit  been  between 
Karu  and  plaintiff,  the  decisions  quoted 
would  have  applied  proprio  vigore,  ^  but  I 
I  cannot  see  that  they  are  applicable  in  the 
circumstances  of  the  present  case. 

On  behalf  of  the  respondents  it  has  been 
urged  that  the  burden  of  proof  throughout 
rested  on  the  plaintiff;  firstly,  because  he 
was  the  plaintiff,  and  secondly,  because  he 
had  failed  in  the  objection  proceedings  :  c/  , 
Narayan  Ganesh  Ghatate  v  Bhioraj  (4)  1  so 
far  agree  that  the  burden  of  proof  was  on  the 
plaintiff  of  proving  not  only  consideration 
and  possession  but  also  go$i  faith.  In  the 
present  case,  however,  thei\8  «  no  indication 
whatever  that  the  District  Judge  had  any 
regard  whatever  as  to  how  the  question  of 
burden  of  proof  lay,  and  the  first  point  he 
had  to  decide  was  whether,  in  view  of  the 
findings  of  the  Subordinate  Judge  on  the 
question  of  consideration  and  possession, 
the  plaintiff  had  sufficiently  established  the 
good  faith  of  the  sale  transaction  In  this 
connection  it  is  pertinent  to  observe  that 
consideration  and  possession  having  been 
established,  a  much  lighter  burden  lay  on 
the  plaintiff  with  regard  to  the  establish- 
ment of  good  faith. 

It  seems  to  me,  however,  that  the  lower 
Appellate  Court's  find  ing  on  the  question  of 
consideration  cannot  stand  in  its  present 
form.  The  all  important  question  it  had 
to  consider  in  this  connection  was  whether 
the  consideration  was  adequate  or  not 
and  whether  the  consideration  was  dis- 
posed of  in  the  method  stated  in  the  sale- 
deed.  There  is,  in  reality,  no  specific  find- 
ing on  this  point.  The  Judge  of  the  lower 
Appellate  Court  seems  also  to  have  assumed 

(i/  15  w  R.  280. 

(2)  1  C  W  N.  594;  25  0    78;  24  I.  A.  1S3,   7  Sar,  P. 
0.  J.  217,  13Ind   Dec  (N.  a.)  53  (P  0.) 

(3)  23  0  950;  23  L  A  92;   7  Sar,  P.  a  J,  63;   12  Lid, 
Dec  (N.  s  )  631  (P.  0 ) 

(4)  2  N.  L.  R.  87  at  p.  89t 


[9^  L  0. 1926] 

that  only  one  instalment  of  the  mortgage- 
deed  has  been  paid  off  by  the  plaintiff, 
whereas  the  evidence  on  record  shovis  that 
two  such  instalments  have  been  satisfied. 
What  the  lower  Appellate  Court  has  done 
in  reality  was  to  have  regard,  fiist  of  all, 
to  the  questions  of  good  faith  and  possession 
and  having  decided  these  against  the  plaint- 
iff, deduced  from  them  that  consideration 
had  not,  in  reality,  passed.  The  case  should, 
of  course,  have  been  approached  fiom  the 
exactly  opposite  point  of  view.  The  burden 
of  establishing  the  passing  of  consideration 
rested  on  the  plaintiff,  that  was  obviously 
the  primary  question  to  determine.  The 
lower  Appellate  Court  should  have  first  de- 
cided that  point  and  this  having  been  done 
it  should  have,  in  turn,  decided  the  question 
of  possession.  If  these  points  were  found 
in  favour  of  the  plaintiff-appellant,  the  onus 
of  establishing  good  faith  would  still  rest 
upon  the  latter,  but  would  be  much  lighter 
one.  On  the  other  hand,  if  the  lower  Appel- 
late Court  finds  that  consideration  was  not 
paid  and  possession  did  not  pass,  the  pos- 
sibility of  establishing  good  faith  would  be 
more  remote. 

The  case  has,  moreover,  from  another 
point  of  view  not  been  properly  handled  by 
both  the  lower  Courts.  The  all  essential 
point  in  a  transaction  like  the  present  is 
whether  tl^e  transferee,  that  is  the  present 
plaintiff,  was  a  party  to  the  fraud.  In  a 
transaction  like  that  we  are  concerned  with, 
an  intention  to  defeat  the  creditors  may 
well  exist  on  the  part  of  the  vendor,  yet 
the  sale  will  be  valid  unless  the  vendee  was 
also  a  party  to  the  fraud  •  cf ,  Natha  v.  Magan* 
thand  (5)  Ramasamia  Filial  v,  Adinarayana 
Pillai  (6).  The  cavse  in  Nana  Mansaram  Shet 
v.  Rauimal  Tarachand  Shet  (7)  relied  on  by 
the  lower  Appellate  Court  was,  it  need 
hardly  be  said, of  an  enthely  different  nature. 
There  the  vendor  had  reserved  absolutely 
no  property  to  himself.  The  plaintiff 
bought  it  without  seeing  or  valuing  it;  the 
consideration  consisted  of  time-barred  debts 
or  debts  which  were  not  payable  at  the  time 
and  the  said  consideration  was  grossly  in- 
adequate. The  said  decision,  therefore,  was 
an  entirely  inapposite  one  for  application  to 
the  facts  of  the  present  case, 

I  would  add  also  that  one  other  matter 
requiring  consideration  at  the  hands  of  the 

(5)  27  B.  322;  5  Bom,  L  R,  170 

J6)  20  M,  465;    7  M.  L    J  246;  7   Ind.    Dec  (K  s ) 

(7)  22  B,  255i  11  Ind.  Doc.  (x.  s)  753, 


tr,  DUNI  CHAND. 

lower  Appellate  Court  is  whether  or  not  the 
consideration  was  inadequate.  Theie  has 
been  no  finding  of  any  value  on  this  point. 

The  appeal  must,  therefore,  go  1  ack  to 
the  lower  Appellate  Court  for  re-dispceal  on 
the  merits  with  advertence  to  the  above 
remarks.  As  I  have  already  pointed  cut, 
the  finding  arrived  at  -vuth  regard  to  the 
consideration  is  really  based  on  more  or  Jess 
extraneous  m^tteis  and  requires  much  more 
specific  and  precise  consideration .  This 
point  having  been  adjudicated  upon,  the 
District  Judge  must  then  take  up  the  point 
of  possession  and  good  faith  and  in  arriv- 
ing at  his  conclusion  on  the  appeal  as  a 
whole  he  must  remember  that  the  bed-rock 
test  of  the  good  or  bad  faith  of  a  transac- 
tion like  the  present  is  whether  the  vendee, 
that  is  the  present  plaintiff,  was  also  a  party 
to  the  fraud,  even  assuming  that  a  fraudu- 
lent intention  was  present  on  the  part  of  the 
vendor  Karu. 

The  judgment  and  decree  appealed 
against  are  leversed  and  the  case  will  go 
back  to  the  lower  Appellate  Court  for  re- 
disposal  of  Civil  Appeal  No.  35  of  1924  on 
the  merits  with  advertence  to  the  above 
remarks  There  will  be  no  certificate  for 
refund  of  Court-fees  The  costs  incurred 
in  this  appeal  will  follow  the  event. 

z.  K.  Case  remanded. 


LAHORE  HIGH  COURT. 

CIVIL  REVISION  PETITION  No  502  OF  1924, 

December  23,  1924. 

Present:— Sir  Shadi  Lai,  KT.,  Chief 

Justice. 

RAM  BHAJ,  MINOR,  UNDER  THE  GUARDIAN- 
SHIP OP  RAM  LAL— PLAINTIFF — 
PETITIONER 

versus 

DUNI  CHAND  THROUGH  THE  HEAD 
MASTER,  KING  GEORGE  CORONA- 
TION HIGH  SCHOOL,  JHANG- 

DEFENDANT — RESPONDENT 
Oaths  Act  (X  of  1873),    ss.    9,    10,    11- Revocation 
of  offer  to  be  bound  by  oath- -Discretion  of  Court. 

There  is  nothing  in  ss  9,  10  and  11  of  the  Oaths 
Act  which  allows  a  party  who  has  agreed  to  the  ad- 
mmistiation  of  an  oath  by  his  opponent  to  revoke  his 
oiler  after  it  has  been  accepted  by  the  latter  but  the 
Court  has  discretion  to  allow  retraction  if  good 
grounds  are  shown  therefor. 

Thoyi  Ammal  v.  Subbaroya  ttudo,li}  22  M.  234;  9 
Ind,  Dec,  (N,  s)  167,  referred  to, 


814 


OHINTAUPATI  BUTOHI  SBfeTAYVA  OAR0  V,  GOLLAVlLLI  APPADtr.          [92  I.  0.  1926] 


When  an  oath  has  been  administered  it  is  too  late 
for  the  Court  to  pass  an  order  allowing  its  retraction 

Petition  for  revision  of  a  decree  of  the 
Subordinate  Judge,  Fourth  Class,  exercising 
the  powers  of  a  Judge,  Small  Cause  Court, 
Jhang,  dated  the  19th  July  1924. 

Mr.  Devi  Dayal,  for  the  Petitioner. 

Lala  Parkash  Chand,  for  Mr.  Sagar  Chand} 
for  the  Respondent. 

JUDGMENT.— Plaintiffs  next  friend 
offered  on  the  18th  July  1924,  to  be  bound 
by  the  oath  of  the  defendant,  and  this 
offer  was  accepted  by  the  latter  on  that 
very  day.  It  appears  that  no  application 
allowing  the  plaintiff  to  revoke  the  agree- 
ment to  be  bound  by  the  oath  was  present- 
ed to  the  Court  until  after  the  oath  had 
been  administered,  but  that  an  application 
to  that  effect  was  made  to  the  Commis- 
sioner before  the  administration  of  the 
oath,  and  the  question  for  determination 
is  whether  the  plaintiff  should  have  been 
allowed  to  revoke  his  offer  to  be  bound  by 
the  defendant's  oath. 

Now,  there  is  nothing  in  ss.  9,  10  and  11 
of  the  Indian  Oaths  Act  which  allows  a 
party,  who  has  agreed  to  the  administration 
of  an  oath  by  his  opponent,  to  revoke  his 
offer  after  it  has  been  accepted  by  the  latter; 
but  as  held  in  Thoyi  Ammal  v.  Subbaroya 
Mudali  (1)  the  Court  has  discretion  to  allow 
retraction  if  good  grounds  are  shown  there- 
for. I  am,  however,  unable  to  hold  that 
any  ground  has  been  shown  which  would 
have  justified  the  revocation.  Indeed,  as 
pointed  out  above,  the  application  to  the 
Court  was  made  after  the  oath  had  been 
administered,  and  it  was,  therefore,  too  late 
for  the  Court  to  pass  an  order  disallowing 
the  taking  of  the  oath  by  the  defendant. 

The  statement  on  oath  made  by  the  de- 
fendant is  conclusive,  and  the  application 
for  revision  preferred  by  the  plaintiff  is 
accordingly  dismissed  with  costs. 

N.  H.  Petition  dismissed. 

(1)  22  M.  234,  8  Ind,  Dec.  (N.  s )  167. 


MADRAS  HIGH  COURT, 

APPEAL  AGAINST  OKDEB  No.  193  of  1922. 

March  26,  1925. 

Present;— Mr.  Justice  Venkatasubba  Rao 

and  Mr.  Justice  Madhavan  Nair. 

Sri  Raja  Sri  CHINTALAPATI 

BUTCHI SEETAYYA  GARU  AND 

ANOTHER— PLAINTIFFS— -APPELLANTS 

versus 
GOLLAVlLLI  APPADU  alias 

OHINNODU    AND    OTHERS — DEFENDANTS 

Nos.  1  TO  5— RESPONDENTS. 

Madras  Estates  Land  Act  (I  of  1908),  s.  3  (5)— 
Land-holder — Post-settlement  mam — Grant  of  both 
varams—  Grantee,  whether  land-holder— Occupancy 
rights,  acquisition  of— Grant  in  mam  and  perpetual 
lease  on  favourable  rent,  distinction  between — Waste 
lands— lu&m  grant,  whether  can  be  made 

Although  the  grant  of  a  post-settlement  inam  com- 
prises both  the  var'ams,  the  grantee  is  a  land-holder 
and  a  ryot  under  him  can,  therefore,  claim  occupancy 
rights,  but  where  the  grant  is  of  the  kudnaram  alone, 
the  grantee  is  merely  a  ryot  and  his  under-tenant 
cannot  claim  rights  of  occupancy,  [p.  816,  co).  1  ] 

The  distinction  between  a  grant  in  inam  and  a 
perpetual  lease  on  a  favourable  rent  is  a  real  though  a 
fine  one  [p.  816,  col  2.] 

Jurvgumilh  Brahmayya  v  Chellaghah  Achiraju,  70 
Ind  Oa's  615,  45  M  71t>,  (1922)  M.  W  N.  280;  31  M. 
L.  T  01,  43  M  L.  J  229,  A.  I.  R.  1922  Mad.  373, 
lehod  on 

Per  Venkatasubba  ttao,  J  —It  cannot  be  laid  down 
that  an  inam  grant  of  waste  land  is  in  law  impossible. 
[ibid] 

Appeal  against  an  order  of  the  Court  of 
the  Additional  Subordinate  Judge,  Vizaga- 
patam, dated  the  llth  April  1922,  in  A.  8. 
No.  106  of  1922,  (A.  8.  No.  234  of  1920,  Dis- 
trict Court,  Vizagapatam),  A.  S.  No.  104  of 
1920,  Sub- Court,  Vizagapatam,  preferred 
against  a  decree  of  the  Court  of  the  District 
Munsif,  Chodavaram,  in  0.  8,  No.  648  of 
1916. 

Messrs.  D.  Appa  Rao  and  B.  Somayya,  for 
the  Appellants. 

Mr.  T.  Suryanarayana,  for  the  Respond- 
ents. 

JUDGMENT. 

Venkatasubba  Rao,  J.~The  ques- 
tion to  be  decided  in  this  appeal  is  whether 
the  defendants  gave  permanent  occupancy 
rights  in  the  land  in  question. 

The  facts  may  be  briefly  stated.  The 
Rajah  of  Vizanagaram  granted  in  the  year 
1810  to  Chintalapati  Rayappa  Razu  a  por- 
tion of  the  village  of  Lakkavaram  on  what 
was  described  as  ilHarasala  Cowle"  or 
permanent  lease.  The  assessment  and  other 
dues  payable  to  the  zemindar  were  fixed  at 
Rs.  1,421-6-0  and  the  grant  contains  the 
words  that  "the  profits  are  to  be  enjoyed 
hereditarily  from  son  to  grand-son,11  It 


[92-1.  0.  1926]         OHINTAL4PATI  BUTCH1  8EETAYTA  <H*U  D.  *OLLAVILLT  JJ?PADU, 

may  be  useful  to  give  the  rendering  of  the 
grant  itself  (Ex.  I). 

"Hara$<ila  Cowle  granted  by  Sri  Pusa- 
pati  Narayanagajapathi  Raju  Maharaju- 
lungaru  to  Ohintalapati  Rayaparaju  on 
Saturday  the  5th  day  of  the  bright  fort- 
night of  Margasira  of  the  Promodutha  year. 
Yearly  money  rent  for  the  village  of  Lak- 
kavaram  in  the  Purganah  of  Veddadi  ex- 
cluding the  existing  temple,  Brahmin, 
mirasi  inamslrom  the  year  Pramothudha . — 

Rs.  1,400    jamabandi  or  assessment 
***** 

Rupees  one  thousand  four  hundred  and 
twenty- one  and  annas  six  is  settled  and 
kadapa  having  been  filed,  Harasala  Cowle  is 
granted  Therefore,  for  this  the  instal- 
ments every  year  are- — 

In  default  of  payment  on  due  dates  the 
amounts  should  be  paid  along  with  interest. 
Cultivating  this  village  extensively,  the 
profits  left  after  payment  of  the  Sircar 
jamabandi  or  assessment  from  its  produce, 
are  to  be  enjoyed  hereditarily  from  your 
son  to  grand-son.  The  laws  enacted  by  the 
company  should  be  observed  towards  ryots 
and  other  people.'1 

In  1823  there  was  what  purported  to  be 
a  relmquishment  in  favour  of  the  zemindar 
and  an  endorsement  was  made  on  the  Cowle 
to  the  effect  that  the  land  was  relinquished. 
Taking  his  stand  on  this  relinquishment, 
the  zemindar  sued  for  possession  in  1825 
His  suit  was  dismissed  in  1827  by  the  Pro- 
vincial Court,  Northern  Division,  on  the 
ground  that  the  parties  who  made  the  rfe- 
linquishment  had  no  right  to  the  land  and 
that  Simhadri  Razu,  the  adopted  son.  of 
RayappaRazu  was  the  person  entitled 

We  have  no  information  as  to  the  sub- 
sequent history  of  this  mam  excepting 
that  the  family  became  split  into  three 
branches  and  a  third  share  was  held  by  a 
widow  belonging  to  one  of  them,  by  name 
Sundaranarasayya.  She  granted  to  Sripati 
Purushottam  about  6  acres  of  land  out  of 
her  share,  The  grant  is  not  before  us  and 
we  have  to  decide  what  was  the  nature  of 
the  grant  that  was  then  made.  Nor  is  it 
known  when  the  grant  was  made  excepting 
that  it  should  have  been  previous  to  1874. 
as  Sundaranarasayya  died  in  that  year.  On 
her  death,  the  zemindar  of  Vizanagaram 
claiming  that  certain  sums  were  due  from 
her,  resumed  her  share  of  the  inam.  The 
only  Information  that  we  have  in  regard 


815 

to  the  plot  granted  to  Sripati  Purushottam 
is  that  on  the  Sbhof  February  1893  he  exe- 
cuted Ex  B  in  favour  of  the  zemindar. 
It  recites  that  the  suit  plot  which  had 
been  granted  to  Purushottam  and  had 
been  lor  long  in  his  enjoyment,  is  at  his 
request  allowed  to  continue  to  remain  with 
him  and  he  agrees  to  pay  an  annual  kattu- 
badi  of  Rs.  (5  and  obtain  receipts  from 
time  to  time.  We  have  to  decide  what  is 
the  nature  of  this  grant  and  what  light 
does  it  throw  on  the  previous  grant  by 
Sundaranarasayya  to  Purushottam 

We  have  evidence  in  the  case  as  to  how 
Purushottam  was  enjoying  these  lands  sub- 
sequent to  1893.  ExhibitDis  a  kadapa  execut- 
ed by  one  Jarripotula  Bhimanna  in  favour 
of  Purushottam  wherein  he  agrees  to  pay 
a  kist  of  Rs.  43-8  0  for  the  land  in  question 
and  to  give  up  possession  at  the  end  of 
the  year  for  which  the  lease  was  granted. 
This  recites  that  one  Dummi  Appadu  was 
cultivating  the  laud  during  the  previous 
year.  Again  in  18^9  the  same  Bhimanna 
executed  another  kadapa,  apparently  for 
one  year,  agreeing  to  pay  a  half  share  of 
the  produce  and  a  further  sum  of  Rs,  3-8-0 
half  of  Rs  7  the  kattubadi  payable  or  the 
land.  In  1903,  the  4th  defendant  who  con- 
tests the  suit,  executed  Ex.  C-l  agieeing 
to  take  the  land  on  lease  for  three  years  at 
a  yearly  kist  of  Rs  22-S-O  and  to  surrender 
the  land  at  the  end  of  the  period.  In 
1909,  again,  the  4th  defendant  executed  to 
Purushottam  another  kadapa  (Kx  C)  for  a 
period  of  three  years  on  a  yearly  kist  of 
Rs  30  agreeing,  as  before,  to  give  up  the 
land  at  the  end  of  the  term  This  leciteb 
that  this  very  tenant  was  in  the  possession 
of  the  land  during  the  year  previous  to  the 
hadapa.  These  documents  show  that  the 
land  was  being  actually  cultivated  by  ten- 
ants and  that  Purushottam  leased  to  such 
lessees  from  time  to  time  as  he  pleased. 
The  evidence  also  makes  it  clear  that  the 
4th  defendant  was  originally  admitted  as 
tenant  about  the  year  1900.  On  the  death 
of  Purushottam,  his  sons  executed  a  sale- 
deed  for  the  suit  land  in  favour  of  the 
plaintiff.  The  suit  is  for  recovering  posses- 
sion and  the  4th  defendant  resists  it  on 
the  ground  that  he  has  permanent  occu- 
pancy rights. 

The  plea,  namely,  that  occupancy  rights 
were  expressly  conferred  on  the  defendant 
by  Purushottam  may  be  easily  disposed  of. 
The  terms  of  the  kadapas  C  and  C-l  are 
inconsistent  with  any  such  hypothesis  and 


816 


BtTOSl  SEfeTAYYA  OARU  0.  OOLLAVtLLI  At»PA0tT»  [92  I.  0.  1925] 


it  is  impossible  to  hold,  in  the  face  of  his 
undertaking  to  surrender  the  land  at  the 
end  of  the  term,  that  by  contract  such  rights 
were  gianted  to  him. 

The  next  question  then  is,  can  the  4th 
defendant  claim  occupancy  rights  in  virtue 
of  the  Estates  Land  Act?  The  defendant 
can  succeed  by  showing  either  that  the  land 
in  question  is  an  estate  within  the  mean- 
ing of  s  3,  cl,  (2),  of  the  Act  or  that  the 
plaintiff  is  a  land-holder  as  defined  in  cl.  (5) 
of  the  same  section.  What  was  granted 
to  Rayappa  Razu  was  itself  less  than  a 
village  and  s.  3  (2)  (e)  does  not  apply  even  to 
the  original  grant.  Rayappa  Razu  was 
himself  a  minor  inamdar  and  the  portion 
granted  to  Purushottam  cannot  possibly 
be  an  estate  within  the  Act.  This  pro- 
position is  not  disputed.  The  defendant, 
therefore,  strongly  seeks  to  make  out  that 
the  plaintiff  is  a  land-holder. 

Mr.  Varadachari,  the  learned  Vakil  for 
the  plaintiff,  contends  that  according  to 
the  true  construction  of  Ex.  E  (I)  it  con- 
stitutes a  grant  only  of  the  kudivaram 
interest.  But  for  the  purpose  of  the  present 
appeal  he  does  not  propose  to  take  his 
stand  upon  this.  I  have,  therefore,  to  deal 
with  the  case  on  the  footing  that  Rayappa 
Razu  and  Sundaranarasayya  are  minor 
inamdars.  That  they  will  in  that  event 
be  land-holders  must  now  be  taken  as 
settled.  Jutugumilli  Brahmayya  v.  Chel- 
laghali  Acthiraju  (1).  That  case  is  an  au- 
thority for  the  proposition  that  although 
the  grant  of  a  post-settlement  inam  com- 
prises both  the  varams  t  the  grantee  is 
a  land-holder  and  the  ryot  can  claim  occu- 
pancy rights.  Now,  the  short  question  is, 
did  the  grant  in  favour  of  Purushottam 
comprise  both  the  varams,  in*  other 
words,  was  there  a  grant  in  inam  to  him, 
or  as  the  plaintiff  contends,  was  he  merely 
inducted  to  the  land  as  a  ryot  ?  To  put  it 
in  another  way,  what  was  the  subject  of  the 
grant  in  favour  of  Purushottam  ? 

(1)  Was  it  of  malvaram  alone  ;  in   which 
case  he  would  be  a  land-holder? 

(2)  Was  it  of  malvaram  and  kudivaram^ 
in  which  case  again  he  would   be   a  land- 
holder ? 

(3)  Was  it  of  kudivaram  alone  ;  in  which 
event  he  would  be  merely  a  ryot  with  the 
result  that  any  under-tenant  cannot  claim 
rights  of  occupancy  ? 

(1)  70  Jnd,  Cas,  615;  45  M.  716;  (1922;  M.  W.  N.  280; 
31  M.  L,  T.  81;  43  M.  L.  J,  220;  A.  1.  B,  1022  Mad, 
373, 


At  the  time  of  the  grant,  the  land  was 
waste  and  there  were  no  cultivating  tenants 
on  it,  and  what  was  granted,  there  fore,  could 
not  be  mdvarain  alone  This  hypothesis 
is,  therefore,  out  of  the  question.  The  ques- 
tion, therefore,  narrows  itself  into,  was  the 
grant  of  both  the  varams  or  was  it  only 
of  kudiuaram,  in  other  words,  was  it  the 
land  that  was  granted  or  was  the  grantee 
introduced  on  the  land  merely  as  a  ryot? 

The  contention  of  Air.  Varadachariar,  the 
learned  Vakil  for  the  plaintiff,  is  two-fold. 
On  the  date  of  the  grant  by  Sundaranara- 
sayya the  land  was  clearly  waste.  -Where 
melvaram  and  kudivaram  interests  do  not 
exist  as  two  independent  entities  but  only 
notionally  (as  in  the  case  of  waste  land) 
it  is  not  correct  to  describe  the  grant  as 
being  in  the  nature  of  inam.  Such  a  con- 
ception is  erroneous  in  law,  The  trans- 
action can  amount  only  to  admission  of  a 
tenant  to  waste  land  as  in  the  case  of  a 
darkhast  grant  in  ryotwari  tracts.  Dealing 
with  this  contention,  I  must  say  I  am  un- 
able to  accept  the  theory  that  an  inam 
grant  of  waste  land  is  in  law  impossible. 
Mr.  Varadachari's  second  contention  can- 
not, however,  be  so  easily  disposed  of.  He 
contends,  assuming  that  there  is  nothing  to 
prevent  the  transaction  from  being  a  grant 
in  inam,  this  transaction  must  be  construed 
as  a  disposition  in  favour  of  a  tenant.  He 
argues  that  the  land  being  waste,  a  favour- 
able rent  would  be  a  normal  feature  and 
points  to  s.  26  of  the  Estates  Land  Act  and 
urges  that  it  contemplates  the  co-existence 
of  low  rent  with  mere  kudivaram  grant. 
In  effect  he  maintains  that  the  transaction 
is  not  aft  out  and  out  grant  but  it  should 
be  viewed  in  the  nature  of  a  perpetual 
lease,  there  being  a  remission  of  a  part  of 
the  rent.  The  distinction  between  a  grant 
in  inam  and  a  perpetual  lease  on  a  favour- 
able rent  is  indeed  very  fine  although  in 
law  it  is  quite  sound  and  this  distinction 
is  very  material  in  the  consideration  of  the 
present  question.  To  understand,  therefore, 
what  the  true  nature  of  the  transaction  is, 
a  very  careful  scrutiny  of  the  evidence  be- 
comes necessary. 

In  this  connection  I  must  point  out  that 
there  is  no  suggestion  that  at  the  time  of 
the  grant  by  Bundaranarasiah  the  grantee 
was  in  possession  of  the  land  or  that  any 
person  had  any  kudivaram  interest  in  it. 
In  para  5  of  the  plaint  it  is  stated  that  the 
land  was  waste  at  that  time  and  th«  4th 
defendant  in  his  evidence  admits  that  th$ 


OHINTALAfrATI  BUTCHI  8EETA\YA  QARU  V,  00LLAVILLI  APPADtJ, 


[&2 1.  O,  1926J 

land  was  then  waste,  Marina  Veeraswamy 
v.  Bayinappalli  V enkatarayudu  (2)  and 
Ganjam  Manaikyamba  v.  Pasala  Mallayya 
(3)  are,  therefore,  inapplicable.  The  only 
other  positions  that  remain  to  be  dealt 
with  are,  first,  that  there  was  a  simultaneous 
grant  of  both  varams  and,  secondly,  that 
there  was  a  grant  of  kudivaram  alone  In 
the  former  case  Brahmayya  v.  Achirajn  (1) 
directly  applies  and  the  grantee  would  be 
a  land-holder, 

To  clear  the  ground,  I  should  like  before 
discussing  the  evidence  to  make  another 
observation.  Exhibit  B  very  clearly  shows 
that  there  was  no  fresh  grant  by  the 
zemindar  but  that  he  merely  confirmed  the 
original  grant,  whatever  it  was,  imposing 
probably  a  kattubadi  for  the  first  time  or 
enhancing  a  previously  existing  kattubadi. 
With  these  remarks  I  shall  examine  the 
evidence. 

(1)  Exhibits  is  more  consistent  with  the 
theory  of  an    inam    grant   than  a  lease  on 
favourable  terms;  especially  the  use  of  the 
word  "kattubadi"  favours  this  view. 

(2)  K-4  is  a  receipt   by  the  zemindar  in 
favour  of  Purushottam*    He  is  described  in 
it    as  inamdar  and  the  sum  of  Rs.  6  payable 
by  him  as  "danmila  kattubadi\ 

There  are  other  receipts  where  the  word 
"pattadar"  appears  but  I  attach  importance 
to  the  word  "inamdar"  which  was  specially 
written  in  ink,  whereas  the  word  "pattadar" 
appears  iin  print  in  a  common  form  of 
receipt. 

(3)  Exhibits  1-A,  1-B,  and  1-E,  dated  23rd 
December  1904,  10th  December   1903    and 
2nd  May    1907    respectively  are    receipts 
granted  by  Purushottam  to  the  4th  defend- 
ant.   In  the  first  and  second  of    them,  the 
rent  is  described  as  inam  kist,  in  the  third  it 
is  described  as  "kist  in  respect  of  a  manyam 
lands11. 

(4)  Exhibit  D  one  of  the  kadapas  execut- 
ed in  favour  of  Purushobtam  describes   the 
land  as  "inam  wet  lands0. 

(5)  The  landlord's  share  alone  is  fixed  at 
Rs,  43  8-0  in  Ex,  D,  at  Rs  22-8-0  in  Ex.   0-1 
and  at  Rs.  30  in  Ex  C,  whereas    the  kutta- 
badi  is  only  Rs,  6. 

(6)  A    holding  in    perpetuity    is  in  the 
circumstances    more    consistent    with  the 
grant   being  in  the  nature  of  an  inam. 


817 


(2)  57  Ind.    Gas  778,  39  M.  L 

8M.-    -   -" 


,  J  225;    12  L  W  51; 

28  M.  L.  T.  453 

/3)  82  Ind,  Oas,  929;  47  M  L  J.  393,  20  L,  W.  387; 
(1924)  M,  \V  N.  779;  A,  I,  R,  1924  Mad,  7*2;  47  M.  942, 
3£M.L,  T,  70. 


(7)  Exhibit  A  refers  to  the  sums  payable 
in  respect  of  land  ad-'taxtes  and  what  4s 
even  more  conclusive  the  property  is  des- 
cribed as  post- settlement  inam. 

Beyond  this,  there  is  iio  evidence  worth 
mentioning  and  as  we  must  reach  a  decision 
only  upon  this  material,  I  am  of  the  opinion 
that  the  grant  was  in  the  nature  of  an  inam, 
The  plaintiff,  therefore,  is  a  land-holder  and 
I  must  in  this  view  uphold  the  judgment 
of  the  Subordinate  Judge. 

The  appeal,  therefore,  fails  and  is  dis- 
missed with  costs. 

Madhavan  Nair,  J.— I  agree.  The 
main  question  for  consideration  '  in  this 
appeal  is,  what  was  the  nature  of  the  grant 
of  the  suit  land  by  Sundara  Narasayya  to 
Sripati  Purshottam  9  Was  it  the  grant  of  a 
land  in  inam,  or,  as  is  contended  for  by  Mr. 
Varadachariar,  the  learned  Vakil  for  the 
appellant,  did  the  grant  only  amount  to  an 
admission  of  Sripati  Purushottam  to  the 
land  as  a  tenant,  in  which  case  the  4th 
defendant  would  not  be  an  under-tenant 
under  him?  The  decision  of  the  question 
must  depend  entirely  upon  a  scrutiny  of  the 
evidence  in  the  case. 

The  original  grant  is  not  before  us,  but 
we  have  to  proceed  on  the  assumption  that 
the  land  when  it  was  given  was  merely  a 
waste  land.  It  is  so  described  in  the  plaint 
and  it  is  admitted  by  the  4th  defendant 
in  his  evidence  From  the  nature  of  that 
land  itself  nothing  definite  as  regards 
the  character  |of  the  grant  can  be  infer- 
red It  is  quite  possible  that  only  a  kudi* 
varam  interest  was  granted  to  Sripati 
Purshottam  Section  26  of  the  Madras 
Estates  Land  Act  shows  that  it  is  quite  possi- 
ble to  make  a  grant  of  such  a  limited 
character,  and  the  decisions  quoted  to  U8 
also  suggest  that  the  idea  of  such  a  grant 
is  not  an  unfamiliar  one.  But  the  other 
evidence  in  the  case  which  I  shall  presently 
examine  makes  me  think  that  the  grant  in 
this  case  was  in  the  nature  of  the  grant  in 
inam  This  evidence  consists  of  three  classes 
of  documents  (1)  Aradapa^executed  in  favour 
of  Sripati  Purushottam,  namely,  Exs.  D 
D-l  and  C,  C-l;  (2)  Receipts  granted  by 
the  Vizanagayram  Estate  to  Sripati  Puru- 
shottam, namely,  Exs.  K  series  (3) ;  Receipts 
granted  to  Sripati  Purushottam  to  the  4th 
defendant;  and  (4)  Exs.  A  and  B. 

(1)  The  kadapas  do  not  afford  much 
valuable  evidence  in  the  case,  but  Ex.  D 
executed  bv  one  Bhimanna  in  favour  of 
Sripati  Purushottam  describes  the 


BARKOO  V,  ATM  A  RAM. 

Exhibit  C  and  C-l  show    holder"  within  the 


818 

''inam  wet  land.11 

that  Sripathi  Purushottam  was  letting  out 
the  land  for  cultivation  to  tenants  on  lease. 
Taken  along  with  the  other  evidence  in  the 
case,  an  inference  though  a  faint  one  that 
Sripati  Purushottam  was  an  inamdar  may 
be  drawn  from  these  documents. 

(2)  As  regarde  the  icceipts  granted  by 
the  Estate  we  have  to  note  that  in  Ex.  K-4 
Sripati  Purushotiam  is  described  as  "inam- 
dar" The  word  is  written  in  ink  though  the 
printed  word  "pattadar",  the  usual  \\ord 
appearing  in  the  printed  receipts  has  not 
been  scored  out.  In.  Ex,  K-8  the  land  is 
described  as  "inam  of  No.  107  individual" 
and  Sripati  Purushottam  is  described  as 
"inamdar,11  and  the  word  is  written  in  ink. 
No  doubt  in  some  of  the  receipts  he  is 
described  as  "pattadar"  but  it  seems  to  me 
that  importance  is  to  be  attached  more  to 
the  description  "inamdar"  than  to  the  word 
pattadar  as  the  former  word  has,  as  aheady 
mentioned,  been  specially  written  in  ink, 
whereas  the  printed  word  ^pattadar"  is  the 
common  word  appearing  in  the  receipts.  It 
may  also  be  noted  that  the  kattubadi  pay- 
able is  variously  described  as  "dharmilta 
kattubadi"  and  "dharmilla  inam  kattubadi. 
The  words  "inam  kattubadi"  appearing  in 
Ex.  K-4  are  again  written  in  ink. 

(3)  Dealing   with  the  3rd  class  of  docu- 
ments, Ex,  1-a  is  a  receipt  given  by  an  agent 
on  behalf  of  Sripati  Purushottam  to  the  4th 
defendant.    It  mentions  that  the   rent  is 
paid  as  "inam  cist  for  the  land  in  Lakkava- 
ram  village."    In  Ex.  1-b  algcj  the  same  des- 
ctfption  appears.    In  Ex.  1-6"  the  rent  is  re- 
ferred to  as  "kist  for  manyam  laud".    These 
receipts  go  to  show  how  Sripati  Purusliottam 
himself  thought  about  his  right  to  the  land. 

(4)  Exhibit    A    is   the  sale- deed  to  the 
plaintiff.    There  the  suit  land  is  described 
as    "dharmilla  inam  land."   Exhibit    B  is 
the  agreement  executed  by  Sripati  Puru- 
shottam in   favour  of    the   Maharajah  of 
Vizanagaram,  dated    tha  8th  of  February 
1893.    This  does  not  help  us  very  much  in 
finding  out  the  nature  of  the  grant  in  this 
case;  but  the  use  of  the  word  "kaltubadi" 
suggests   that  the    land  may    have   been 
granted  in  inaw.    The  oral  evidence  in  the 
case   is  not  of    much   importance.    On  a 
careful  consideration  of  the  above  evidence, 
I  have  come  to  the  conclusion    that  the 
grant  by  Sundara    Narasayya  to    Sripati 
Purushottam  was  the  grant  of  the  land   in 
«•„*„,    xhe  pla&tiff  is,  therefore,  "a  land- 


[92 1.  0. 1926] 

meaning  of  the  Full 
decision  in Dramayyav.  Achiraju (J). 

The  decieons  in  Marine  Veeraswamy  v. 
Boyinapplli  Venkatarayudu  (2)  and  Ganjain 
Manikyamba  v.  Pasala  Mallayya  (3)  are 
inapplicable  to  this  case  as  at  the  time 
when  the  land  was  granted  to  Sripati  Puru- 
shottam it  is  not  suggested  that  there  was 
anybody  in  possession  of  it. 

Aa  the  plaintiff  is  a  "land-holder"  the 
judgment  of  the  learned  Subordinate  Judge 
is  right  and  this  appeal  should  be  dismitsed 
with  costs. 

V.  N.  V. 

z.  K,  Appeal  dismissed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No.  238  OF  1925. 

December  2,  1925. 
P?eser^:--Mr.Findlay,  Officiating,  J.  0. 

BARKOO    AND  OTHEhS — PLAINTIFFS — 

APPELLANTS 

versus 
ATMARAM— DEFENDANT— RESPONDENT. 

Pleadings  and  proof—Injunction,  suit  for— Property 
alleged  to  belong  to  plaint  if —Finding  as  to  public 
nature  of  property,  effect  of— Civil  Procedure  Code 
(Act  V  of  1908),  s  91— Building  over  public  street — 
Nuisance™  Suit  for  removal — Procedure 

Plaintiff  alleging  that  a  chabutra  in  an  open  space 
belonged  exclusively  to  Mm,  instituted  a  suit  for  an 
injunction  restraining  the  defendant  from  interfering 
with  the  plaintiff's  user  of  the  chabutra  Defendant 
pleaded  that  the  chabutra  belonged  to  him  It  'was 
found  that  the  chabutra  was  public  property  and 
belonged  neither  to  the  plaintiff  nor  to  the  defendant: 

Held,  that  having  regard  to  the  frame  of  the  plaint- 
iff's suit,  the  suit  must  be  dismissed  on  the  finding  that 
the  chabutra  did  not  belong  to  the  plaintiff,  [p  819, 
col  1 1 

Building  over  any  part  of  a  public  street  or  space 
constitutes  a  nuisance,  [ibid  ] 

Queen-Empress  v.  Virappa  Chetti,  20  M.  433;  1  Weir 
233,  7  Ind  Dec  (N.  s )  307,  followed. 

In  order  to  file  a  suit  on  behalf  of  the  public  for 
the  removal  of  a  building  over  a  public  space,  the 
preliminary  steps  under  s.  91  of  the  0  P.  C.  must  be 
taken  before  the  suit  can  be  maintained.  [ibid.] 

Appeal  against  a  decree  of  the  District 
Judge,  Nagpur,  dated  the  8th  April  1925, 
in  Civil  Appeal  No.  217  of  1924. 

Mr.  M.  R  Bobde,  for  the  Appellants. 

JUDGMENT.— The  facts  of  this  case 
are  sufficiently  clear  from  the  judgments  of 
the  two  lower  Courts.  It  is  firstly  urged 
that  the  District  Judge's  finding  as  regards 
the  ota  in  question  is  contrary  to  the  plead- 
ing of  both  parties.  The  District  Judge's 
finding  is  that  the  ota  belongs  to  the 


[82?  1.  U.  192CJ 


PILLAI  V.  CHIDAMBARAM  CH&T*IA& 


519 


public  generally,  although  in  practice  it 
has  only  been  used  by  the  occupants  of 
the  surrounding  houses.  The  defendant's 
position  was  that  the  ota  is  his  exclusive 
property,  while  the  plaintiffs'  position  is 
that  it  was  the  property  of  the  occupants  of 
the  surrounding  houses 

I  have  been  referred  to  the  decision  in 
Nathu  Piraji  v.  Umedmal  Cadumal  (1)  in 
support  of  the  appellants*  proposition  that 
the  District  Judge's  finding  that  the  land 
was  public  land  was  an  illegal  one  in  the 
circumstances.  As  a  perusal  of  that  case  will 
show  the  factsthereof  were  entirely  different 
and  the  decision  does  not  seem  tome  appli- 
cable, even  by  an  analogy,  to  the  present 
case  Here  the  litigating  parlies  alleged 
that  a  chabutra  in  an  open  space  belonged 
to  each  of  them.  On  the  facts  the  lower 
Appellate  Court  held  that  neither  of  them 
had  established  their  claim  thereto  and  that 
the  ota  was  public  property  and,  therefore, 
the  plaintiffs  were  not  entitled  to  the  relief 
which  they  claimed.  The  decision  in  Bal- 
krishnadas  v.  Gobind  (2)  is  full  authority 
for  the  propriety  of  the  lower  Appellate 
Court's  decision 

It  has  been  urged,  however,  before  me 
that  even  on  the  District  Judge's  finding 
that  the  ota  is  public  property,  an  injunc- 
tion should  have  been  awarded  to  the 
plaintiffs  in  view  of  the  fact  that  the  de- 
fendant is  claiming  it  as  his  exclusive 
property  and  that  the  plaintiffs  have  been 
using  it  for  the  purposes  of  their  trade  for 
years  back.  The  Balkrishnadas  v,  Govind 
(2)  just  quoted  is,  in  my  opinion,  authority 
for  holding  this  contention  to  be  incorrect. 
The  plaintiffs  came  to  Court  alleging  that 
the  ota  was  their  exclusive  property.  Had 
they  filed  the  suit  on  behalf  of  the  public 
generally,  the  preliminary  steps  under 
s.  91  of  the  0.  P.  C.  would  have  had  U)  be 
taken,  and  I  may  point  out  that  building 
over  any  part  of  a  public  street  or  space 
constitutes  a  nuisance:  c/.  Queen-Empress  v. 
Virappa  Chetti  (3). 

I  do  not  think,  therefore,  that  the  plaint- 
iffs were  entitled  to  succeed  in  the  present 
jsuit  as  framed  and  I  am  unable  to  see  any 
ground  for  disturbing  the  decision  of  the 
lower  Appellate  Court.  The  appeal  is  dis- 
missed without  notice  to  the  respondent. 

z.  K,  Appeal  dismissed. 


(1)  1  Ind.  Caa,  456;  33  B.  35;  10  Bom,  L.  R.  768. 

(2)  2  Ind.  Cos.  241;  5  N  L.  R.  67. 

(3)  20  M,  433;  1  Weir  233;  7  Ind,  Dec.  (K,  B  }  307, 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  No*  44  OF  1922. 

January  28,  1925 

Present'— -Sir  Victor  Murray  Coutts 
Trotter,  KTM  Chief  Justice,  and  Mr  Justice 

Krishnan. 

VEERASAMI  PILL AI~- DEFENDANT  No.  4— 
APPELLANT 

versus 

V.  S  T.  N.   CHIDAMBARAM 

CHETTIAR  AND OJHBES— PLAINTIFFS 

AND  DEFENDANTS  Nos.  1  TO  3— 

RESPONDENTS. 

Principal  and  aye nt —Misconduct  of  agent — Promis- 
sory note  obtained  by  agent  from  debtor — Suit  on  note 
by  principal,  dismissal  of,  on  ground  of  forgciy — 
Original  claim  barred—Suit  for  damages  caused  by 
agent  forging  note — ATo£e  void  as  contravening  s  26  of 
Paper  Currency  Act  (II  of  1910),  effect  of- Suit  against 
agent,  maintainability  of 

An  agent  who  was  carrying  on  money-lending 
business  on  behalf  of  his  principal  was  charged  by 
the  latter  with  breach  of  trust  in  obtaining  an  inade- 
quate security  from  a  third  person  in  discharge  of  a 
pro-note  that  had  been  executed  by  a  solvent  debtor 
The  agent  then  produced  a  fiosh  pro-note  alleged  to 
have  been  since  executed  by  tjie  said  debtor  A  suit 
by  the  pimcipal  on  this  pio-note  was  dibimssed  on 
the  ground  that  the  note  "was  forged  The  cause  of 
action  on  the  original  claim  had  by  then  become 
barred  by  time  In  a  suit  by  the  principal  against 
the  agent  for  damages  caused  by  his  misconduct  in 
forging  the  note  and  misleading  the  plaintiff  into 
giving  up  the  claim  on  the  original  note,  it  was  found 
that  the  note  was  illegal  and  void  being  in  contra- 
vention of  s  26  of  the  Paper  Currency  Act 

Held,  thai  the  plaintiff  had  no  cause  of  action  on 
which  to  maintain  the  suit,  since  even  if  the  note  had 
been  genuine,  a  suit  on  that  document  must  have 
failed  and  it  could  not  be  said  that  the  loss  of  the 
litigation  was  due  to  the  action  of  the  agent  in 
forging  the  note,  the  loss,  if  any,  being  due  to  the 
plaintiff's  own  neglect  in  not  seeing  what  his  rights 
were  under  the  document,  [p  821,  col  2] 

Appeal  against  a  decree  of  the  Court 
of  the  Second  Additional  Subordinate  Judge, 
Madura,  in  Original  Suit  No  73  of  1921, 
(0  S,  No,  39  of  1920,  Sub- Court,  Dindigul, 
O  S.  No.  54  of  1920,  Sub-Court,  Madura;, 

Mr.  C.  V.  Anantakrishna  Iyert  for  the 
Appellant. 

Mr.  M.  Patanjali  Sastri,  for  the  Respond- 
ents. 

JUDGMENT. 

Coutts  Trotter,  C.  J.— This  case 
has  been  in  a  state  of  confusion  from  the 
outset  and  it  is  only  at  the  very  last  mo- 
ment of  it  that  our  attention  is  drawn  to 
|  a  point  that  lam  not  sure  we  did  find 
for  ourselves  and  which  would  have  ren- 
dered about  two-thirds  of  the  argument 
unnecessary.  I  do  not  blame  the  Bar,  they 
had  to  pick  out  the  facts  froga  a  tangled 


820 


PILLAt  t>,  CHIDAMBARAM  CHETTUR. 


[92  I,  0.  1926 J 


mess   of  Documents  and  oral  evidence.   The 
judgment  of    the  learned  Judge  is  so  con- 
fused that  it  is  almost    impossible  to  dis- 
cover what  he  did  find  and  what  he  did 
not.    However  in    the   view  we  take  of  this 
case,   it    is    unnecessary  to  scrutinise  the 
findings  of  fact  of  the  learned  Judge,  be- 
cause, to  all  intents  and  purposes,  we  may 
accept    them.    The  facts  are  quite  simple. 
The  plaintiff  is  a  Nattukottai  Ohetti  who 
lives  somewhere  in   the  Kamnad   District 
and  has  a  branch  business  conducted  in 
his    absence  by  an  agent  at  Palni,    During 
most  of  the  material  time  in  the  suit,  that 
agent  was  the  4th  defendant.    A  debt  had 
been  incurred  by  the  1st  and  2nd  defend- 
ants   in    the    suit  to     his  predecessor-in- 
agency  and  two  promissory-notes  had  been 
given,  Exs.  A  and  A-l,  dated  the  J2th  Janu- 
ary  1912  and  29th   January   1912.    Those 
promissory  notes  were  for  Rs.  900  and  1(0 
respectively*    After  the  4th   defendant  had 
taken  up   his  position  as  agent  in    succes- 
sion  to  the  other  man,  a  very  curious  trans- 
action  took  place,  '  The  1st  defendant  on 
the  4th  October  1913  executed  a  sale-deed 
transferring   a  certain  piece     of  property 
to  his  mother-in-law  for  ah  expressed  con- 
sideration of  Rs.  2,000;  and  three  days  later 
on    the  7th    October,     the  same  piece  of 
property  was  mortgaged  by  the  mother-in- 
law  to    the  plaintiff  through  the  agent,  the 
transaction  being  carried  out  on   the  epot 
by   the  agent,    The  consideration    for  the 
mortgage  was  expressed  to  be  the  discharg- 
ing of   the  debts    evidenced  on   the  pro- 
missory notes     and    a    fresh    advance    of 
Rs.  403  which,  according  to   the  evidence, 
Was  actually    made      The  position  appar- 
ently   was   that     the    original   debtor,  the 
1st  defendant   (because  the    2nd  defendant 
is  only  a    member  of  the  family  brought 
in  under    Hindu    Law)  was     a  well-to-do 
man  and  there  would   be   no  difficulty  in 
getting  the  money.    The  position   of  the 
old  woman  was  that,  beyond   this  litt'e  bit 
of  property  which  came    to  her  from   the 
1st  defendant  in    circumstances  that  are 
not  beyond    suspicion,    she    had  nothing 
else  in  the  world  and  apparently  her  hus- 
band was  as  impecunious  as  she  was.   Un- 
doubtedly the  transaction  was  one  which 
the  principal  would  be  very  likely  to  look 
at  with  very  great  suspicion;  and,  accord- 
ingly, when  the  principal,  as  in  due  course 
of  time  he  did,  visited  Palni,  he  took  his 
agent  very  much  to  task  for  exchanging  a 
good  security  against  a  very  solvent  man 


for  a  very  risky  mortgage  on  a  piece  of  land 
entirely  problematical  in  value  and  said  ,to 
be  of  much  less  value  than  a  leasonably 
safe  margin  would  demand.  So  there  we 
have  the  agent  at  this  stage  treated  as 
guilty  of  a  breach  of  duty  ;  and  it  may  b6 
that,  had  he  then  and  there  sued  his  agent 
for  neglect  and  breach  of  duty,  he  would 
have  been  able  to  prove  that  the  property 
was  not  worth  as  much  as  the  debt  and  he 
would  have  got  damages  from  the  agent 
for  his  taking  Ex.  B  instead  of  preserving 
the  liability  on  Exs.  A  and  A  (1).  But  that 
cause  of  action  is  gone  and  hopelessly  tiijie- 
barred. 

There  is  another  suggested  cause  of  ac- 
tion and  that  is  a  very  curious  one.  When 
the  4th  defendant  \\as  taken  to  task  for 
releasing  the  1st  and  2nd  defendants  he 
said  "O'l  that  is  all  right.  They  quite 
acknowledge  their  liability  continues  and 
to  show  you  that  that  is  so,  I  will  get  you 
a  fresh  promissory-note  executed  by  the 
1st  defendant."  That  he  did  and  that 
promissory  note  figures  in  the  case  as  Ex. 
H.  Exhibit  H  has  had  a  touring  existence 
in  various  law  Courts  and  the  last  pro- 
nouncement upon  it  was  by  the  learned 
Subordinate  Judge  in  this  case  who  pro- 
nounced it  to  be  a  forgery,  the  theory  being 
that  the  agent  being  frightened  because  of 
his  misdeeds  in  regard  to  Exs.  A  and  A-l 
and  B  being  found  out  sought  to  appease 
his  principal  by  forging  a  promissory-note 
purporting  to  be  executed  by  the  original 
debtor,  the  1st  defendant.  The  Subordi- 
nate Judge  went  into  the  matter  at  enor- 
mous length  but  he  entirely  overlooked  the 
point  which  cropped  up  at  the  end  of  the 
hearing  here  which  renders  the  cause  of 
action  in  our  view  untenable,  The  cause 
of  action  is  this;  "you  represented  to  me 
that  I  was  in  possession  of  a  new  docu- 
ment on  which  I  can  sue  you,  the  1st  and 
2nd  defendants,  without  recourse  at  all  to 
the  old  promissory-notes,"  And  thereupon, 
he  says,  he  brought  a  suit  on  Ex  H  and 
was  damnified  owing  to  being  lulled  into 
security  by  the  false  representation  that 
Ex.  H  ^as  a  genuine  document,  forewent 
his  remedy  on  Exs.  A  and  A-l  and  let 
them  be  time-barred.  It  is  obvious  that, 
if  he  proved  his  case  at  all,  he  would.have 
been  able  to  say  in  these  proceedings  on 
Ex.  A  and  A-l.  "It  is  quite  true  that  thesfc 
things  look  on  the  face  of  the  transactions 
between  the  parties  to  be  merged  in  Ex, 
B  and  to  be  gone  but  I  am  not  in  a  position 


[92  i.  0   1928] 


VflBRASAMI  PILUI  V,  CHiD.iMa.UUM  CflBTTIAF, 


82t 


to  show  that  Ex.  B  was  a  fraud  and  that, 
therefore,  the  origiual  liability  on  the  pro- 
missory-notes, Exs.  A  and  A-l  was  never  in 
truth  and  in  fact  extinguished."    We  will 
assume  that  it  is  right     Speaking  for  my- 
self, I  ^  think  it  would  have  been  right,  but 
there  is  one   trifling   flaw  and  it  is  this. 
B78.  26  of  the  Paper  Currency  Act  of  1910, 
"No  person  in   British    India  should  draw, 
accept,  make  or  issue  any  Bill  of  Exchange, 
hundi,     promissory-note    or     engagement 
for  the  payment  of  money  payable  to  bearer 
on  demand"  with  certain   exceptions;  and 
the  effect  of  the  section  is  to  make  such 
instruments  absolutely  illegal     Now,  what 
is  the  position  ?    There  are  decision  of  this 
Court    which,  while  formally  settling  the 
principle  that  such  instruments  are  illegal, 
nevertheless  point  out  that  in  certain  cases 
the  payee  of  the  promissory-note  can  never- 
theless bring  proceedings  on   the  original 
consideration.    Some  of  them  say  that  the 
promissory  note     may    be   relied  upon  as 
evidentiary  of  the  original   debt  and  con- 
sideration.   It   is    unnecessary   to   discuss 
that  matter  here,    because  I  do  not  think 
it  arises  in  this  case,   but  I  should  like  to 
guard  myself  frwn  being  understood  to  say 
that  I  assent  to  that  view  of  the  law  without 
further  consideration    and  direct  argument 
about  it.  But  here  what  was  the  position  ?  If 
the  plaintiff  could  have  said  "you  by  your  re- 
presentations about  the  genuineness  of  this 
note  prevented  me  from  suing  on  the  con- 
sideration/1 then  there  might  be  a  great  deal 
to  be  said  but  he  has  not  said  that     The 
note    is    payable    to    a    named    payee  or 
bearer;  and  the  contention  at  one  time  put 
forward    was  that  that  was  not  the  mis- 
chief that    it  was  intended   to   be   hit   by 
the  Act.    But  there  are  several  decisions 
of  this  Court  which  clearly  decide  otherwise; 
and,  indeed,    speaking  with  respect,  I  do 
not  see  how  any  Court  could  decide  other- 
wise when  it  has  really  looked  with  any 
care  at  the  Statute,  what  did  the  plaintiff 
do  who  we  have  assumed  has  been  misled 
by  the  defendant's  misrepresentations  about 
the  note?    He  did    not    come    before  the 
Court  and  say,  "this  is  a  promissory -note 
bad  on    the  face  of  it  and  illegal  but  it 
has  a  perfectly  good  consideration    behind 
it  and  I  ask  you  to  let  me  sue  you  on  that 
debt.    I  put  in  a  plaint  purporting  to  sue 
on  it  and  I  ask   you  to  let  me  sue  on  the 
promissory-notes  merely  as  evidence  of  the 
debt.'*    He  brought  a  suit  entirely  framed 
pa  these  pronaissory-notes  and  nothing  else 


and  the  District  -  Munsif  decided  against 
him  on  the  ground  that  the  notes  were 
vitiated  by  the  provisions  of  thfe  Act. 
During  the  trial  I  suppose  the  District 
Munsif  must  have  given  him  some  inti- 
mation of  what  was  in  his  mind.  At  the 
trial  he  did  not  ask  for  an  amendment  of 
the  plaint  and  he  did  not  apparently 
amend  or  was  at  any  rate  allowed  to  amend 
only  when  the  case  came  on  in  appeal.  The 
only  conclusion  is  that,  assuming  the  plaint- 
iff to  have  been  misled  by  the  false  repre- 
sentation made  to  him,  assuming  that  the 
defendant,  acted  with  a  fraudulent  intent 
and  knew  that  the  representations  he  was 
making  were  false,  the  chain  of  causation 
breaks  down  It  was  not  those  representa- 
tions that  brought  the  plaintiff's  case 
ill  luck  but  it  was  the  fact  that  he  took  an 
instrument  which  the  law  presumes  him 
to  know  to  be  bad  on  the  face  of  it  instead 
of  his  old  remedy  and  that,  having  that 
instrument  he  stuck  to  it  as  his  sheet 
anchor  and  did  not  attempt  to  revive  the 
original  consideration.  I  may  add  that  he 
would  have  been  no  better  off  on  the  find- 
ing of  the  learned  Judge  if  in  addition  to 
suing  on  the  promissory  note,  Ex.  H,  he  had 
added  an  alternative  claim  on  the  con- 
sideration for  that  note  for  the  simple  reason 
that  the  learned  Judge  in  this  case — and  it 
looks  very  much  as  if  he  was  right— has 
found  a  fact  that  this  promissory-note, 
Ex  H,  was  forged.  Therefore,  the  only 
thing  on  which  he  could  possibly  have 
sued  was  the  original  consideration  of  the 
two  old  promissory-notes,  Exs.  A  and  A  (1), 
and  it  was  never  suggested  from  first  to 
last  of  this  trial  that  it  was  any  representa- 
tion of  the  4th  defendant  that  prevented 
hicn  from  doing  that  In  my  opinion  this 
appeal  must  be  allowed  but,  inviewofthe 
revelations  of  the  4th  defendant's  conduct, 
and,  I  may  add,  in  view  of  the  fact  that 
the  real  point  in  the  case  was  never  taken 
until  it  had  progressed  several  hours,  we 
should  not  allow  any  costs. 

Krishnan,  J.—  In  this  case  the  facts 
have  been  very  clearly  and  fully  set  out 
in  the  judgment  just  delivered  by  the 
learned  Chief  Justice  and  it  is  unneces- 
sary to  state  them  again. 

The  4th  defendant  is  sued  by  the  plaint- 
iff on  the  ground  that  by  giving  him  a 
forged  note,  Ex.  H,  he  induced  him  to 
bring  a  suit  on  that  note  and' as  it  was 
forged,  he  failed  on  the  note  and  incurred 
the  coats  of  that  litigation  unaecess  irily 


622 


DAWUT  V.  KA9HIRAO. 


[92 1.  0. 1926] 


and  further  that  he  was,  misled  into  giving    was  executed  that  claim  is  now  barred  by 

11  TV     Ft  IB    fit  A  i**N     1*  w»  *J  *•»%»          T?«VM  A          «MS]  A        /  1   \        £*XM  1  i  __  •  A  _  .1* .      J" J      ^_    ^      _._**.     _^._^1J1     1^.^.     _^_  _^_A^.!_*.^^J 


up  his  claim  under  JE*s.  A  and  A  (1)  for 
the   time  being  J&&  that    claim    became 
barred  by  limitation.    He  contends  before 
ue,  therefo^  that  on  the  finding  that  Ex.  H 
is  a  forgery  he  is  entitled    to  get  from  his 
agent;  the  4th  defendant,  damages  calculat- 
ed partly  on  the  costs  of  the  litigation  in 
which  he   failed  apd  partly  on  the  loss  he 
suffered  by  not  being  able  to  claim  against 
the  1st  and  2nd  defendants  the  amount  due 
under  the   notes,  Exs.    A  and  A-l.    The 
prinicipal  difficulty  in  his  way  is  that  Ex.  H 
wa's  not    a  document  on  which    he  could 
have    based  any    action   at  all   as  it  is  a 
document  rendered  illegal  by    s,  26  of  the 
Paper  Currency  Act.    Even  if  it  had  been 
a  genuine  document,  a  suit  on  that  docu- 
ment must   have  failed.    That    being  so, 
it  cannot  be    said   that  the  loss   of  that 
litigation  was  due  to  the  action  of  the  4th 
defendant,  in  forging  the  note.  The  plaint- 
iff  should  have  seen  when  he  got  Ex.  H 
that,  whether  it  be  a  genuine  or  a  false  one, 
it  was    not  a  document  on  which  he  could 
have  maintained  a  suit;  and,  if  he  brought 
one,  it  was  due  to  his   own  fault  and  I  do 
not   see  how  under  the  circumstances   he 
could  turn  round  and  say  that  he  lost  his 
litigation  on  account  of  the  action  of  the  4th 
defendant  and  that     he  should  be  made 
liable  for  the  costs.    It  is  contended  befoie 
us  that,  even  if   we  treat  Ex.  H  as  a  docu- 
ment on  which  no  action  could  have  been 
brought,    still    if  it   had  been  a  genuine 
document  he  could  have    asked  the  suit  to 
be    converted    into  one  on    the    original 
cause  of  action,  namely,  the  loans  for  which 
Exs  A  and  A  (1)  were  given  and  got  relief 
against    the   1st  and  2nd  defendants.  The 
answer  to  it  is  that,  if  he  had  taken  proper 
care  to  see  what  his    rights  weie,  he  could 
have  in  the  very  first   instance  instead  of 
suing  on  Ex.  H  brought  the    action  as  he 
might  have  then  done  on  the  original  loans 
for  which  Exs.  A   and  A  (1)  were  taken; 
Exs.  A  and  A  (1;  themselves  were  promis- 
sory-notes which    are  hit  at  by   s.  26  of 
the  Paper  Currency  Act    and.  hence  could 
not  have    been  sued  upon.    If  any   loss 
occurred     to   the    plaintiff,    it  is  clearly, 
therefore,  due  to  his  own  neglect    in  not 
seeing  what     his    rights  were  under  the 
documents    uhich   are   in  question  here. 
So  far  as  any  claim  could   be   based  upon 
the  defendant's  action  in  taking  Ex.  B  in 
supersession  of  Exs.  A  and  A-l  and  a  sum 
of  money    advanced  at  the  time  Ex.  B 


limitation;  and  no  suit  could  be  maintained 
by  the  plaintiff  on  any  cause  of  action 
based  upon  the  misconduct  of  the  4th 
defendant  in  taking  Ex.  B.  It  is  only  if 
he  can  sustain  his  present  action  on  a 
ground  based  upon  Ex.  H  that  he  has  got 
any  claim  at  all.  As  I  have  already  stated 
I  do  not  think  that  he  is  entitled  to  base 
any  claim  on  Ex.  H  for  the  reasons  I 
have  already  stated.  That  being  so,  it  is 
clear  that  this  action  as  against  his  agent, 
the  4th  defendant  fails.  The  4th  defend- 
ant's appeal  must,  therefore,  be  allowed 
and  I  agree  to  the  order  proposed  by  the 
learned  Chief  Justice.  The  suit  is  dismiss- 
ed as  against  the  4th  defendant. 
v.  N.  v.  Appeal  allowed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  31  OP  1925. 

December  8,  1925, 
Present :— Mr.  Findlay,  Officiating  J.  C. 

DAWLAT  AND  ANOTHKK — APPELLANTS 

versus 

KASHIRAO  AND  OTHKRS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1()08),  $.  US— Mort- 
gage—Foreclosure 8uit—Compro7nise  decree—Time 
fixed  for  payment,  whether  can  be  extended —Power 
of  Court 

A  Court  has -no  power  to  extend  the  time  fixed  in 
a  compromise  decree  in  a  suit  for  foreclosure  for 
the  payment  of  the  decretal  amount  [p.  h23,  col.  1  | 

Appeal  against  a  decree  ot  the  First 
Subordinate  Judge,  Second  Class,  Nagpur, 
dated  the  3rd  August  1925,  in  Civil  feuit 
No.  58  of  1S22. 

Mr.  D.  T,  Mangalmurli,  for  the  Appel- 
lants. 

Messrs.  M.  B.  Niyogi  and  M.  B.  Kinkhede, 
R.  B  ,  for  the  Respondents. 

JUDMGENTV— In  this  case  a  prelimi- 
nary decree  for  foreclosure  was  passed  by 
the  Senior  Subordinate  Judge,  Nagpur, 
against  the  present  two  appellants  and 
Pilaji,  the  son  of  the  second  appellant, 
Venkatrao.  The  respondents  Nos.  6  and  7 
were  joiued  as  subsequent  mortgagees.  The 
case  was  compromised  and  a  decree  was 
passed  accordingly  for  payment  of  the 
decretal  amount  of  Rs.  8,056. 

The  first  five  plaintiff-respondents  applied 
for  decree  (final)  on  12th  December  iy<!4< 


lUMAUMf  GOCTN&.W  I'  AUGIA  SWfrAPBRtTtfiL  K1DAV0L 


(921.  0. 

The  second  appellant  Venkatrao  applied 
for  an  extension  of  time  on  20th  Novem- 
ber 1924.  In  that  application  he  stated 
that  he  had  arranged  to  deposit  Rs.  1,500 
for  payment  to  the  decree  holders  and  on 
the  ground  that  he  had  been  ill  throughout 
the  year  and  that  the  harvest  had  been 
poor,  he  asked  for  an  extension  of  six  months1 
time.  Eventually,  on  3rd  August  1925  the 
Subordinate  Judge,  finding  that  the  two 
subsequent  mortgagees  were  willing  to  pay 
off  the  entire  amount  of  the  decree  within 
15  days,  allowed  time  accordingly  until  the 
24th  of  August  1925.  The  present  appel- 
lants had  at  this  hearing  offered  the  de- 
posit of  a  further  sum  of  Rs.  2,000,  but  the 
Subordinate  Judge  did  not  grant  the  prayer 
of  the  appellants. 

For  my  own  part,  I  do  not  think  this  is 
a  case  where  I  would  be  entitled  to  inter- 
fere in  favour  of  the  appellants  This  was 
not  a  case  of  an  ordinary  foreclosure  decree 
with  the  normal  period  of  six  months  allowed 
for  payment.  On  the  contrary,  under  the 
compromise  a  special  period  of  a  year  was 
granted  and  even  by  August  1925  the  pre- 
sent appellants  were  only  able  or  willing  to 
pay  Rs.  3,50l)  at  the  most. 

It  has,  indeed,  been  urged  on  the  strength 
of  the  decisions  in  Hemendra  Lai  Singh  Deo 
v.  Fakir  Chandra  Datta  (1)  and  Nnpendra- 
nath  Chatter 'jee  v  Jhumak  Mandar  (2)  that  it 
was  not  open  to  the  Court  in  the  present  case 
to  grant  an  extension  of  time.  The  latter 
case  is  very  much  to  the  point  and  I  think 
this  contention  offered  on  behalf  of  the 
decree-holders  is  undoubtedly  correct  •  c/. 
also  Komalsinqhv  Jagannath  Muratsingh  (3) 
which  deals  with  the  question  of  extension 
of  time  for  pavment  of  the  decretal  amount 
and  the  inapplicability  of  s  148  of  the  C. 
P.  C.  in  such  a  matter.  It  is  true  that  the 
decree-holders  consented  to  15  days'  exten- 
sion in  order  to  permit  of  the  subsequent 
mortgagees  paying  up  the  amount  but  that 
was  all. 

The  appeal,  therefore,  fails  and  is  dis- 
missed, as  it  seems  impossible  to  show  the 
present  appellants  any  more  leniency  or 
latitude  in  the  matter  of  extension  of  time 
for  pavment  The  case  will  now  go  back 
to  the  Executing  Court  and  after  it  reaches 
there  a  period  of  at  least  15  days  should 

(1)  74  Ind  Oas  929,  50  C.  650,  27  0  W.  N  621; 
A.  I.  R  1923  Gal.  626 

(2)  80  Ind  Oaa  588;  3  Pat  221;  4  P.  L,  T.  694,  2 
Pat.  L  R.  9;  A  I.  R  1924  Pat.  263 

(3)  49  Ind.  Oas.  840;  15  N,  L.  R.  39. 


823 


be  allowed  to  the  two  subsequent  mort- 
gageea-reapondents  to  pay  up  the  decretal 
amount  in  accordance  with  their  previous 
offer.  The  appellants  must  bear  the  res- 
pondents' coats  in  this  appeal.  Pleader's 
fee  Rs.  25. 
z.  K.  Appeal  dismissed. 


MARAS  HIGH  COURT. 

APPEAL  AGAINST  ORDBR  No.  330  OP  1924. 

September  7,  1925. 

Present: — Justice  Sir  Charles  Gordon 

Spencer,  KT  ,  and  Mr.  Justice 

Madhavan  Nair. 

RAMASAMI  GOUNDAN-DEFBNDANT 
No,  1--  APPELLANT 

versus 
ALAGfA  8INGAPERUMAL  KADAVUL 

AND  ANOTHER — PLAINTIFF  AND 

DEFENDANT  No.  2— -RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  92— Reli- 
gious endowment— Alienation  of  trust  properties  by 
trustee—Suit  to  recover  properties— Procedure 

The  founder  of  a  religious  trust  appointed  himself 
as  trustee  thereof  during  his  lifetime  and  his  heirs 
after  his  death,  and  his  widow,  who  succeeded  him 
in  the  trusteeship  after  his  death,  alienated  properties 
belonging  to  the  trust  In  a  suit  by  the  next  rever- 
sioner  to  set  aside  the  alienation  and  to  recover  the 
property* 

Held,  that  the  suit  was  not  maintainable  and  that 
the  proper  course  was  for  the  plaintiff,  together  with 
one  or  more  interested  peisons,  after  obtaining  the 
required  sinotion  under  s  92,  C  P  0 ,  to  sue  for  the 
widow's  renvoval  from  the  trusteeship,  and  for  appoint- 
ment of  himself  or  sjms  other  fit  person  to  be  trustee 
in  her  place,  and  that  the  person  who  so  became 
trusts  might  then  sue  on  behalf  of  the  trust  for  the 
recovery  of  the  property  improperly  diverted  from 
trust  purposes  [p  824,  col  1 J 

Appeal  against  an  order  of  remand  of 
the  Court  of  the  Additional  Subordinate 
Judge,  Coimbatore,  in  A.  8.  No.  3  of  1924, 
dated  the  30th  June  1924,  (A.  8.  No.  214  of 
1923  of  the  District  Court,  Coimbatore),  in 
O  8  No  619  of  1922,  District  Munsifs 
Court,  Udamalpefc. 

Mr  T.  M.  Krishnaswami  Iyer,  for  the 
Appellant. 

Mr.  S.  Srinivasa  Iyer,  for  the  Respondents. 

JUDGMENT*  —  This  suit  was  brought 
by  a  male  reversioner  to  the  estate  of  the 
founder  of  a  trust  for  the  temple  of  Aligia 
Singaperumal  Kadavul  to  recover  property 
alienated  in  favour  of  first  defendant  by  the 
act  of  the  founder's  wife,  who  is  2nd  defend- 
ant. The  District  Munsif  held^  that  the 
plaintiff  was  not  entitled  to  maintain  the 


Subordinate  Judge  was  of  a  contrary  opinion 
and  ordered  the  suit  to  go  on. 

He  relied  on  two  eases,  Savala  Cunniah 
Chetty  v,  Thiruvengada  Ramanujachariar 
(1)  and Kadambi  Sriniiasacharluv.Durlabha 
Subuddhi  (2).  Both  of  these  decisions  were 
given  in  suits  instituted  when  the  0.  P.  0, 
of  1882  was  in  force.  When  the  amended 
Act  of  1908  came  into  force,  it  contained  a 
new  provision  incl,  (2)  of  s,  92  barring  suits 
in  respect  of  charitable  and  religious  trusts 
without  first  obtaining  the  permission  of 
the  Advocate- General. 

We  have  been  referred  in  the  course  of 
thearguments  to  two  other  cases,  Sub  ramania 
4.iyar  v,  Nagarathna  Naicker(3)  and  Ranga- 
swami  Nayudu    v.    Krishnaswami    "tAiyar 
(4),    These  were  cases  in  which  a  number 
of    persons  had    a    common  interest  in  a 
temple  or  charitable  institution,  and  a  re- 
presentative suit  was  allowed  by  the  Court 
to  be  brought  on  behalf  of  all,  under  s  30  of 
the  Code  of  1882  (now  0  I,  r  8).    When  a 
village  temple  is  owned  in  common  by   all 
the  villagers  of  a  certain  village,  this  is  the 
proper  fprjtt  of  suing.    In  the  present  case 
the  founder  of  the  trust  appointed  himself 
as  manager  during   his    lifetime  and  his 
heirs  after  his  death.    His  widow,  who  is 
second  defendant,  is  his  nearest  heir,  and  as 
she  alienated  the  trust  property,  she  can- 
not be  transposed  as  plaintiff.    The  rever- 
sioner  cannot  claim  at  present  to  be  trustee 
l*he  proper    course  is  for    the     plaintiff, 
together  with  one  or  more  interested    per- 
sons, after  obtaining  the   required  sanction 
under  s.  92  to  sue  for   2nd  defendant's  re- 
moval from  the  trusteeship,  and  for  appoint- 
ment of  himself  or  some  other  fit  person  to 
be  trustee  in  her  place.    In  such  a  suit  the 
validity  of  the  alienation  could  be  decided. 
The  person  who   becomes  trustee   or  a 
receiver  appointed  in  the  suit    may   then 
sue  on  behalf  of  the  idol  for  the  recovery 
of  the  property  improperly  diverted    from 
trust  purposes.     It    is   suggested  that  we 
might  allow  some  time  for  the   plaintiff  to 
apply  and  get  permission  to    proceed  either 
under  O.  I,  r,  8  or  under  s.  92,   C,  P.  0.,  but 
we  think  that  this  cannot  be   done  as  this 
would   alter  th$  nature  of  the  suit.    The 

(1)  18  Ind,  Cas.  622,  24  M  L  J    48,  (1913)  M    W. 

(2)  17  Ind.  Cas  589,  23  M.  L  J  ,348 

(3)  5  Ind    Cas  DOJ,  20  M.  L  J    151,  8  M  L    T    114 

(4)  71  Ind.  Cae.  463;  17  L.  W.  117,  44  M  L  J    lie' 
mW.N^MM    L.  T.   133,    A    I.  R    1923 
27(5, jj 


THA80E  SINGH  V.  SONKUAR,  [92  L  0. 

dUit /and  dismissed  ,  it     The  Additional    appeal  ig  accordingly    aUo^d;  with  cost? 

to  be  paid  by  1st  respondent  in  this 
Court  and  the  lower  Appellate  Court,  and 
the  decree  of  the  District  Munsif  dismissing 
the  suit  with  costs  is  restored;  2nd  respon- 


dent to  bear  her  own  costs. 

v.  N.  v.  Appeal  allowed 


NAQPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  6  OF  1925. 

October  10,  1925. 
Present:— Mr,  Hallifax  A.  J.  C. 
THAKUR  SINGH  AND'AHOTHIR— 
DEFENDANTS — APPELLANTS 

versus 

Musammat  SONKUAR--PLUNTIFF 
— RESPONDENT. 

C.  P  Tenancy  Act  (I  of  1920),  Sch.  II,  Art.  1 
— "Holding"  whether  includes  part — Suit  for  possession 
of  part  of  holding—Limitation, 

The  word  ''holding1'  m  Art.  1  of  Sch  U  to  the  C.  P. 
Tenancy  Act,  includes  a  part  of  a  holding  and  a  suit 
for  possession  of  a  part  of  a  holding  must,  therefore, 
be  brought  within  two  years  of  the  date  of  disposses- 
sion or  exclusion  from  possession,  [p  825,  col.  1.] 

Appeal  against  a  decree  of  the  Addi- 
tional District  Judge,  Bilaspur,  dated  the 
12th  January  1925,  in  Civil  Appeal  No.  176 
of  1924. 

Mr.  G.  R  Deo,  for  the  Appellants, 

JUDGMENT.— The  plaintiff-respond- 
ent Sonkuar  Bai  was  the  co-tenant  of  an 
occupancy  holding  with  the  second  defend- 
ant Ramdayal  Chamar,  who  sold  the 
entire  holding  to  the  first  defendant,  Thakur 
Singh,  on  the  llth  of  June  1920.  The  latter 
took  possession  of  it  on  that  date,  and 
Sonkuar  Bai  filed  this  suit  for  recovery  of 
possession  of  her  half  share  on  the  1st  of 
August  1924,  joining  Ramdayal  as  a  formal 
defendant.  In  the  first  Court  the  suit  was 
held  to  be  barred  by  time  under  Art,  1  of 
Sch,  II  of  the  Tenancy  Act.  In  appeal  the 
learned  Additional  District  Judge  started 
with  the  remark  that  there  was  no  sub- 
stance in  the  argument,  rejected  in  the  first 
Court,  that  Art.  1  of  Sch,  II  has  no  applica- 
tion to  a  suit  for  joint  possession. 

But  the  learned  Judge  then  goes  on  to 
say  that  the  facts  of  the  present  case  "are 
admittedly  different,"  for  the  reason  that 
"it  is  not  from  the  entire  holding  that  the 
dispossession  or  exclusion  has  taken 


80K&DEO  t?  RAM  DtJLARI, 


[W-C  0,  1928J 

but  from  only  a  portion  of  the  holding 
the  question  is  whether  Art.  1  will  bar  such 
a  scut."  The  suit  is  for  joint  possession  to 
the  extent  of  a  half  of  the  entire  holding, 
along  with  Ramdayars  transferee  Thakur 
Singh,  whqmSonkuar  had  to  recognise  and 
did  recognise  as  her  co-tenant, 

In  the  judgment  of  the  lower  Appellate 
Court  it  is  eventually  held,  after  discussion 
of  the  point  that  the  word  holding  in  the 
Article  mentioned  can  only  mean  the  whole 
of  a  holding  and  cannot  mean  a  part  of 
one,  and  that  a  tenant  dispossessed  of  a 
part  only  of  his  holding  can  sue  for  recovery 
of  possession  within  twelve  years.  The  de- 
cision is  of  course  quite  outside  the  case, 
but  I  think  it  advisable  to  show  that  it  is 
wrong  The  learned  Judge  arrived  at  it 
with  diffidence  as  it  was  directly  contrary 
to  that  given  by  this  Court  in  Budga  v. 
Chain  (I) 

I  have  to  admit  that  I  have  difficulty  in 
understanding  exactly  what  the  reasons 
given  by  the  learned  J  ucige  mean,  and  to  say 
also  that  on  reading  again  the  reasons  for  the 
contraiy  view  in  my  judgment  in  Budga  v. 
Chain  (1)  I  am  still  satisfied  of  their  co- 
gency. But  several  additional  reasons  in 
support  of  the  same  view  can  easily  be  dis- 
covered. All  the  reasons  given  by  the 
learned  Judge,  as  far  as  I  understand  them, 
for  thinking  that  the  holding  mentioned  in 
Art.  1  of  the  Schedule  is  the  entire  holding 
and  not  a  part  of  it  apply  equally  to  the 
same  word  appearing  in  Art  9  of  the  same 
Schedule.  But  there  it  undoubtedly  refers 
to  a  holding  "or  any  portion  thereof1,  as 
is  clear  from  s.  100  of  the  Act 

Again  if  in  this  case  the  whole  does  not 
include  the  part,  then  the  same  must  be 
said  of  at  least  sixty  Articles  in  the  Sched- 
ule of  the  Limitation  Act.  For  instance, 
the  litigation  for  a  suit  to  set  aside  the  sale 
of  a  part  of  a  patni  taluq  for  current  arrears 
of  rent  would  not  be  one  year  under  Art  12 
(d)  and  that  for  a  part  of  the  price  of  goods 
sold  and  delivered,  a  part  having  been  paid, 
would  not  be  three  years  under  Art  52,  in 
each  case  we  would  have  to  fall  back  on 
Art.  120. 

The  order  of  the  lower  Appellate  Court 
remanding  the  case  for  trial  will  be  set 
aside  and  a  decree  will  issue  dismissing  the 
suit.  The  plaintiff- respondent  will  pay  all 
the  costs  in  all  three  Courts  There  has 
been  something  worse  than  the  usual  care- 

(1)  78  lad  Gas  214,  A.  I.  R   1925  Nag  197. 


825 


lessness  in  the  matter  of  Pleader's  fee  in 
this  case,  and  the  learned  Judge  of  each  of 
the  lower  Courts  has  been  guilty  of  saying 
that  in  his  opinion  a  fair  amount  for  the 
successful  party  to  be  paid  on  account  of 
the  expense  to  which  he  was  wrongly  put 
in  the  matter  of  employing  a  Pleader,  is 
eight  annas  The  Pleader's  fee  in  this 
Coutt  will  be  thirty  rupees, 
a,  R.  D  Case  remanded. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPML  No.  214  OF  1924. 

December  14,   1925. 

Present  —  Mr.  Justice  Raza 

SUKHDEO—PLAiNTiFi?—  APPELLANT 

versus 
Musammat  RAM  DULABI—  DEFENDANT 

—  RESPONDENT 

Limitation  Act  (IX  oj  1908},  Sch  I,  Ait  IM—Suit 
based  on  title  —  Adverse  possession,  plea  of  —Bur  den  of 
proof  —  Trespasser,  independent,  whether  can  tack 


One  trespasser  cannot  add  to  his  own  possession  the 
previous  independent  possession  of  another  trespasser 
When  possession  passes  from  one  trespasser  to  another 
there  is  a,  constructive  icstoration,  even  if  a  momentai  y 
re*toiationt  of  the  true  cnvner  to  possession  [p  820, 
col  2] 

Basanta  Kumar  Roy  v  Secretary  of  State  for  India, 
40  Ind  Cas  337,  15  A  L  J  398  at  p  409,  1  P  L  W 
593,  32  M  L  J  503,  21  0  W  N  612,  25  C  L  J  487, 
10  Bom  L  R  480,  (1917)  M  W  N  482,  6  L  W  117, 
22  M  L  T  310,440  $58,  441  A  104  (P  CM,  refci- 
red  to. 

In  a  suit  falling  within  Art  144  of  Sch  I  to  the 
Limitation  Act  the  initial  onus  is  on  the  plaintiff  to 
establish  his  title  and  he  is  not  under  an  obligation 
topro\e  his  possession  within  12  years  of  the  suit 
On  the  contiaiy  when  the  plamtift  s  title  has  been 
proved  01  is  admitted,  the  burden  is  on  defendai  t  to 
establish  that  he  01  the  pei  son  through  whom  he 
claims  has  or  have  been  in  ponscssion  adverse  to  the 
plaintiff  for  over  12  years  befoie  the  tint  The  defend- 
ant must  also  prove  when  his  possession  became  ad- 
veise  [p  8*27,  ool  1  ] 

Janaki  Xath  Saha  v  Baikuntha  Nath  Ghattack,  70 
Ind  Cas  602,  36  C  L  J  HO,  A  I  K  1922  Cal  176, 
27  0  W  N  259  and  Secretary  of  State  fen  India  v 
Chelakani  Rama  Rao,  35  Ind  Cas  902,  39  M  617,  31 
M  L  J  321,  20  C  W  N  1311,  (1916)  2  M  W  N  224, 
HAL  J  1114,  20  M  L  T  435,  4L  W  486,  18 
Bom  L  ft  1007,  25  C  L  J  69,  431  A  192  (P  C  ), 
referred  to 

Appeal  from  a  decree  of  the  Court  of  the 
Suhoidmate  Judge,  Unao,  dated  the  18th 
February  1924 

Mr   Btsheshar  Nath,  for  the  Appellant 
JUDGMENT.—  This    is    a    plaintiff's 
appeal  from    a    decree  of   the   Subordinate 
Judge  of  Unao,  dated   18th  Febmaiy   1924> 


$26 


SUKHDBO  V.  HAM  DULARI, 


partly  affirming  and  partly  reversing  a  decree 
of  the  Munsif  of  Unao,  dated  the  3rd  August 
1923. 

The  dispute  in  this  case  relates  to  the 
property  of  one  Ram  Rakhan  who  died  on 
the    22ad     February      1910.    His     sister, 
Musammat  Subedha,  took  possession  of  the 
property  left  by  him.  She  was  no  heir  under 
the  Hindu  Law  and  her  possession  was  that 
of  a  trespasser.    The  nearest  heirs  of   Ram 
Rakhan  according  to  the  proximity  in  degree 
were  Sat '   Narain  and  his  brother    Ram 
Dayal.    They  joined  with  themselves  their 
nephew  Ajodhya  Prasad  in  suing  Musammat 
Subedha  for  possession  of  the  property  left 
by  Ram  Rakhan.    They  succeeded  in  gett- 
ing a  decree  for  possession  of  the  property 
on  the  14th   December   1911.    The    decree 
.  was  passed  on  the  basis  of   a  compromise. 
They  obtained    possession  through   Court 
on  the  22nd  December  1911  and  mutation  was 
effected  in  their  favour  on  the  28th  March 
1912.    The    plaintiff's    case    is  that  these 
three  persons  had  no  title  to  the    property 
as    they    were   born   lepers.    They  being 
disqualified,  there  were  5   persons  (^includ- 
ing the  plaintiff)  in  the  same  degree    who 
were  entitled  to  the  property  of  Ram  Rakhan 
under  the  Hindu  Law.     Three    of  them, 
namely^  Sheo  Dularey  (defendant  No    3), 
Our  Din  (defendant  No.  4)  and  Durga  Prasad 
brought  a  suit  against  Ram    Dayal    and 
otheis,    and  got  a  decree  for  3/5ths  of  the 
property  on  the  25th  February  1 1)1 3     Then 
the   fourth  man,   namely,  Salt  Narain  (de- 
fendant No.  5)  sued    for    a^    l/5th    share 
and  obtained  a  decree  on  the  *29th   January 
1914.    Thus  4/5ths  of  the  property  wa^  re- 
covered by  the  lightful  parsons  from    Ram 
Dayal  and  others  named  above.   The  plaint- 
iff claims  the  remaining   l/5lh  of  the   pro- 
perty.    Ram  Dayal  died  having  executed  a 
Will  in  favour  of  his  daughter,  Mu&ammat 
Ram  Dulari,  (defendant  No.   6)  on  the  30th 
July  1918.    The    defendant    No.    7   is  the 
husband  of  Musammat  Ham   Dulari.    The 
defendants  Nos.  6  and  7  got  possession  of 
the  property  comprised  in  the  Will.     The 
plaintiff  brought  the  present  suit    on  the 
17th  November  1022     The  suit  was  contest- 
ed  by  the  defendants  Nos.  6  and  7   alone 
and  proceeded  exparte  against  others.  The 
suit  was  decreed  by  the  first  Court  on  the 
3rd  August  1923    However,  it  wis  dismissed 
so  far  as  a  l/15th  share  in  R-im   Rakhan's 
property  is  concerned,  on  the    defendants 
Nos     6and  7*sappeal,on  the  18th  February 
1924,    The  defendants  Nos.  6  and  7  had 


[92 1  0.  1926] 

appealed  to  the  extent  of  a  l/15th  share 
and  the  present  appeal  has  been  filed  by  the 
plaintiff.  The  respondents  have  failed  to 
appear  in  this  Court. 

(  There  is  only  one  question  for  determina- 
tion in  this  appeal  and  that  question  is  one 
of  limitation.  That  question  was  decided 
in  favour  of  the  plaintiff  by  the  first  Court. 
However,  it  was  decided  against  the  plaint- 
iff by  the  Court  of  first  appeal.  The  suit 
was  of  course  instituted  more  than  12  years 
after  Ram  Rakhan 's  death  but  it  was  insti- 
tuted within  12  years  of  the  date  on  which 
the  decree  was  obtained  by  Ram  Dayal  and 
others  against  Musammat  Subedha,  It  was 
instituted  within  twelve  years  of  the  date  on 
which  Ram  Dayal  and  others  got  posses- 
sion of  the  property  under  the  decree  dated 
14th  December  1911.  The  question  is  whe- 
ther the  defendants  Nos.  6  and  7  who 
derived  their  tiile  from  flam  Dayal  are 
entitled  to  tack  in  to  the  peiiod  of  their 
own  and  Ram  Dayal's  possession  the  period 
during  which  Musammat  Subedha  remained 
in  possession  of  the  pioperty  after  the 
death  of  Ram  Rakhan.  In  my  opinion 
they  cannot  do  so  I  have  examined  the 
pleadings  and  the  compromise  in  tlie  former 
suit  in  which  the  decree  was  passed 
against  Musammat  Subedha.  80  'far  as  I 
see,  Ham  Dayal  and  others  had  got  the 
decree  in  recognition  of  their  rights.  They 
do  not  deiive  their  title  or  their  liability 
to  be  sued  from  Musammat  Subedha.  They 
being  lepers  had  no  right  to  the  propeiiy 
under  the  Hindu  Law  and  they  derived  their 
liability  to  be  sued  from  that  circumstance. 
Those  persons  and  Musammat  Subedha 
were  independent  trespassers  and  posses- 
sion of  independent  trespassers  cannot  be 
tacked  [*ee  the  principle  of  decision  in  the 
case  of  Basanta  Kumar  Roy  v.  Secretary  of 
State  /or  India  (1)]  As  pointed  out  in  the 
case  of  Janaki  Nath  Saha  v.  Baikuntha 
Nath  Ghattac^  (2)  one  trespasser  cannot 
add  to  his  own  possession  the  previous  in- 
dependent possession  of  another  trespasser. 
When  the  po^s^ssion  passes  from  the  first 
to  the  second  trespasser,  there  is  a  construc- 
tive restoration,  even  if  a  momentary  re- 
storation, of  the  true  title  to  possession. 

(1)  40  Ind  Gas.  337,  15  A.  L  J.  398  at  p.  400,  1  P. 
L  W  593,  32  M  L.  J  505,  21  0.  W.  N  (M2,  25  0.  U 
J  487,  ii)  Bom  L.  R.  480;  (1917)  M  W.  N  4b2,  G  L, 
W  117;  22  M  L.  T  310;  41  C.  85S,  it  I  A  104 
(PO) 

(2)  70  Ind.  Caa.  602;  36  C,  L,  J,  140,  A.  I  R  192g 
CaL  170;  27  0.  W.  N.  259, 


[S2  I.  0.  1926]  VBUSUPALLI  SfiBTfi  AftAlf  All  1IA  t>.  MAQANTI  APPIAE, 


The  present  suit  is  a  suit  falling  within 
Art.  144  of  the  Limitation  Act.    Where  a 
plaintiff  sues  on  the  strength    of  his  title 
without  any  reference  to  prior   possession 
or  dispossession,  in  such  a  case  it  would 
seem  that  on    the   proper  construction  of 
Art.    144,  the  plaintiff  would  be  enlUled  to 
succeed  on  proof  of  his  title,  unless  the  de- 
fendant is  able  to   displace  it    by    proof 
of  adverse    possession    by  himself  or  his 
predecessor-in- title  for  the  whole  statutory 
period.    It  is  noticeable  that  adverse  pos- 
session was  not  set  up   by    the  defendants 
Nos   G  and     7     In  their    defence  in  this 
pase  they  had  contended  simply   that  the 
plaintiff  and  his  ancestors  had  never  been 
in  possession  of  the  property    and  hence 
the  suit  was  barred  by  time,    In  a   suit 
falling  within  Art    144  the  initial  onus    on 
plaintiff  is  to  establish  his  title  and  he    is 
not  under  an  obligation  to    prove  his  pos- 
session   within  12  years  of  the  suit.    On 
the  contrary  when  the  plaintiff's  title  has 
been  proved  or  is  admitted,  the  burden  is 
on  defendant  to  establish  that  he,  or  per- 
sons through  whom  he  claims,  has  or  have 
been  in  possession  adverse  to  the  plaintiff 
for  over  12  years  before  the  suit.     The  de- 
fendant must  also  prove  when  his  posses- 
sion became  ad  verse.    It  is  settled  that  the 
onus  of  establishing  title  to  property  by 
reason  of  possession  for  a  certain  requisite 
period  lies  on  the   person   asserting    such 
possession.    [Secretary  of  State  -for  India  v. 
Chelakani  Kama  Rao  (3)]    "An  owner    of 
property  does  not  lose  his  right  to  property 
merely    because   he    happens  not  to  be  in 
possession  of  it  for  12  years.     Under  s  23 
of  the  Indian   Limitation  Act,    1908,    his 
right  is  only  extinguished  at  the  determina- 
tion of  the  peiiod  limited  by  the    Act   to 
him  for  instituting  a  suit  for  possession  of 
property  ;  that  period  cannot  be  determined 
unless  it  has  commenced  fo  run,   and   the 
period  will  not  commence  to  ran  until  the 
owner  is  aware  that  some  one  else  in    pos- 
session   is  holding  adversely   to  himself. 
[See  Swamirao  Shriniwas  Parvati  v  Bhima- 
bai  Padappa  Dasai  (4)].  In  the  present  case, 
the  suit  was  instituted   within   12  yeaisof 
the  date    on  which   Ram  Dayal  and  others 
obtained  a  decree  against  Musammat  Su- 
bedha  and  got  possession  of  the    property 

(3)  35  lad.  Gas  902,  39  M  617,  31  HI  L  J  324,  20 
OWN  1311,  (1916)  2  M  W.  N  224,  14  A  L.  J  1114; 
20  M  L  T  43  %  4  L.  W.  483, 18  Bom.  L.  R.  1007,  25 
0.  L,  J.  69,  43  L  A.  192  (P.  0 ) 

;*)  62  lad.  0*3. 101;  45  B.  1020;  23  Bom.  L,  R,  416. 


827 

in  execution  of  the  decree.  I  have  already 
observed  that  these  persons  and  Musammat 
tfubedha  were  independent  trespasser ~  an- 1 
they  could  not  add  to  their  possession  the 
previous  independent  possession  of  another 
trespasser.  Under  these  circumstances  I 
think  the  learned  Munsif  was  peifeotly 
risht  in  deciding  the  question  of  limitation 
in  favour  of  the  plaintiff 

Hence  I  allow  the  appeal  and  setting 
aside  the  decree  of  the  lower  Appellate 
Court  restore  the  decree  of  the  first  Coint 
and  also  in  the  lower  Appellate  Court. 
The  appellant  will  gat  his  costs  from  the 
respondents  Nos.  1  and  2  in  this  Court  and 
also  in  the  lower  Appellate  Court,  He  will 
get  his  costs  in  the  first  Court  as  ordered 
by  that  Court. 

Z.  K. 

G.  H.  Appeal  allowed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  444  OP  1*23 

Octobers,   1925. 

Present— Mr.  Justice  Odgers  and 
Mr,  Justice  Viswanatha  Sastri 
VBMULAPALLl  SEETHARAMAMMA 
AND  OTHERS — DEFENDANTS  NOS.  3  TO  5  — 
APPELLANTS 

versus 

MAGANTI  APPIAHAND  OTHERS— 

PLAINUFFS  AND  DEFENDANT  No.  6 — 

RESPONDENTS. 

Hind'i  Law  -Minor—  De  facto  guardian,  alienation 
6y,  validity  of —Necessity— Benefit  to  estate —Ratifica- 
tion by  minor  on  attaining  majority,  effect  of 

Under  the  Hindu  Law,  the  powers  of  a  de  facto 
guardian  of  a  minor  aro  tha  same  as  these  of'aJe 
jure  guardian  and  an  alienation  of  the  minors  pi o- 
pcrty  by  u  de  facto  guardian  is  equally  binding  on  the 
minor  if  it  is  suppoited  by  necessity  or  beneht  to  the 
estate  [p  828,  col  2  } 

An  alienation  by  a  de  facto  guardian  not  for  a 
binding  purpose  is  not  per  se  void  but  only  voidable 
and  becomes  valid  where  it  is  ratified  by  the  minor  on 
attaining  majority  [p  830,  col  1  ] 

Uunoomanpersaud  Panday  v  Babooee  Munraj 
Koonweree,G  M  I.  A  393,  18  W  R  Sir?,  Seventre 
253n,  2  Huth  P  C  J  29,  1  Bar  P  C  J  552,  19  E  K 
147,  Vembu  ]yer  v  Simivasa  lyenyar,  17  Ind  Cas 
(09.23  M  L  J  638  at  p  646,  12  M  L  T  547  and 
IJohanund  Mondul  v  Nafur  Mondul,  26  C  S20,  3  C 
W  K  770,  13  hid  Dec  (s  s)  1125,  relied  on 

Nalannad  v  Kanbirampare  Ravuni  Nair,  81  hid 
('as  973,  47  M  L  J  686,  (1924)  M  W  N  792,  20  L 
W  876,  35  M  L  T.  127,  A  I.  R  1925  Mad  260,  not 
followed 

Per  Viswanatha  Sastri,  J. — There  is  nothing  in  the 
Hindu  Law  which  limits  the  guardianship  of  a  minor 
to  the  father,  mother  and  failing  them  the  King,  A 


823 


VBMULAPALLI  SBETlIAKAMAMMA  V.  MAGANTI  APPIAH*  [92  I.   0.  1926] 


mafcsrnal  uncle  in  Hindu  society  in  Southern  India  is 
a  fit  and  proper  psrson  to  act  as  guardian  of  a  minor. 
(p.  832,  col.  1.1 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate,  Judge,  Masuli- 
patam,  in  A.  8.  No.  7  of  1022,  (A.  S  No  101 
of  1921,  District  Court,  Kistna),  preferred 
against  a  decree  of  the  Court  of  the  Prin- 
cipal District  Munsif,  Gudivada,  in  O.  8. 
No.  151  of  1919. 

Mr.  K.  Subba  Rao,  for  the  Appellants. 

Mr.  P.  Satyanarayana  Rao,  for  the  Re- 
spondents. 

JUDGMENT. 

Odgers,  J, — The  question  in  this  case 
is  whether  an  alienation  by  a  de  facto 
guardian  is  valid  under  the  Hindu  Law. 
The  person  in  question  is  the  maternal 
uncle  of  the  plaintiff  and  of  course  is  neither 
the  natural  nor  the  legal  guardian.  The 
District  Munsif  dismissed  the  suit  which 
was  a  claim  for  a  declaration  that  the 
alienation  made  during  the  minority  of 
the  plaintiff  did  not  bind  him.  The  Sub- 
ordinate Judge  reversed  this  decision  hold- 
ing that  the  alienation  made  by  the  mater- 
nal uncle  was  a  void  transaction. 

It  has  been  argued  at  length  for  the 
respondents  that  a  de  facto  guardian  is 
unrecogntised  in  the  Hindu  Law.  It  may 
be  at  once  said  that,  if  there  is  such  a 
recognition,  I  am  satisfied  that  the  recogni- 
tion is  more  or  less  modern  and  possibly 
to  some  extent,  the  recognition,  if  it  is 
legally  recognised  at  all  has  come  about  by 
necessity.  The  earliest  case,  as  far  as  1 
know,  is  the  well-known  case  in  Huvooman- 
persaud  Panday  v.  Babooce  Munraj  Koon- 
weree  (I)  where  their  Lordships  of  the 
Privy  Council  say — **  Upon  the  third 
point,  it  is  to  be  observed  that  under  the 
Hindu  Law,  the  right  of  a  bona  fide  in- 
cumbrancer  who  has  taken  from  a  de  facto 
manager  a  charge  on  lands  created  honest- 
ly, for  the  purpose  of  saving  the  estate,  or 
for  the  benefit  of  the  estate,  is  not  (provided 
the  circumstances  would  support  the  charge 
had  it  emanated  from  a  de  facto  and  de 
jure  manager)  affected  by  the  want  of  union 
of  the  de  facto,  with  the  de  jure  title."  It  has 
been  said  that  this  dictum  is  obiter  as 
the  Rani  in  the  case  under  discussion  was 
undoubtedly  the  natural  guardian.  It 
might  perhaps  also  be  said  that  the  third 
point  was  not  absloutely  essential  to  the 
decision.  However  that  may  be,  any  dicta 

(1}  6  M   I   A    393,  18  W    R,  81n,   S-vestre  2jJto,  2 
Suth.  P.  C.  J  29,  1  Sar.  P  C.  J.  532,  19  E  K.  147 


tint  may  fall  from  the  Privy  Council  are 
naturally  entitled  to  great  weight  and,  if 
the  powers  of  a-  de  facto  guardian  under 
the  Hindu  Law  have  been  recognised  in 
other  decisions,  it  must,  I  think,  be  taken 
that  a  de  facto  guardian  is  known  to  that 
law.  Much  stress  has  been  laid  for  the 
respondents  on  the  Privy  Council  case  in 
Imambandi  v.  Mutsaddi  (2)  where  it  is 
clearly  laid  down  that  a  de  facto  guardian 
is  unknown  in  the  Muhammadan  Law.  The 
decisions  of  the  Courts  on  this  point  of 
Muhammadan  Law  are  fully  examined  and 
in  their  Lordships'  judgment  delivered  by 
Mr.  Ameer  AH.  A  person  who  may  be  con- 
veniently called  a  de  facto  guardian  has 
no  power  under  the  Muhammadan  Law  to 
convey  to  another  any  right  or  interest  in 
immoveable  property  which  the  transferee 
can  enforce  against  the  infant.  Nothing 
can  be  clearer  than  that.  But  it  has  to  be 
observed  that  not  only  there  but  all  through 
the  judgment  only  the  question  as  arising 
under  the  Muhammadan  Law  is  dealt  with. 
On  the  other  hand,  in  Gour's  Hindu  Code, 
s.  906,  it  is  asserted  that  the  powers  of  a 
natural  and  de  jure  guardian  are  the  same 
as  those  of  a  legal  guardian.  Any  act  done 
by  the  de  facto  guardian  would  be  equally 
binding  on  the  minor  if  it  is  supported  by 
necessity  or  benefit  to  the  minor.  Bee  also 
s.  1)13  where  the  learned  author  expressly 
states  that  the  Muhammadan  Law  is  differ- 
ent. 

In  Mohanund  Mondul  v.  Nafur  Mondul 
(3)  a  grandmother  purported  to  sell  a 
minor's  estate  The  Court  found  that  she 
was  a  de  facto  guardian,  and  relying  on 
Hunoomanpersaud  Panday  v.  Bzbooee 
Munraj  Koonweree  (1),  it  held  that  not  only 
might  a  de  facto  guardian  mortgage  but 
aho  sell.  Binnerji,  J.,  points  out  that  there 
may  be  cases  where  the  sale  of  a  part  of 
the  minor's  estate  might  be  more  beneficial 
to  him  than  a  mortgage.  In  Adhar  Chandra 
Dutt  v.  Kirtibash  Bairage  (4)  it  is  said  in 
the  judgment;  "It  is  conceded  by  the 
learned  Doctor  who  appeared  for  the  appel- 
lants that  the  powers  of  a  de  facto  guard- 
ian are  the  same  as  those  of  a  legal  guard- 
ian.'1 It  appears  that  the  Court  adopted 
that  admission  which  was  that  of  Dr.  Rash 

(2)  47  Ind    Gas  513,  45  C.    878,  35  M    L.  J.  422;  16 
A  L  J  800,  24  M  L.  T  330,  28  C  L  J  409,  23  0  W. 
N  50,  5  P    L  W  276,  20  Bom  L  R  1028,  (1010)  M.  W. 
N  t)l,  9  L   W.  518,  45  I  A  73  (P  C  ). 

(3)  26  O  820,  3  C.  W.  N.    770,  13    Ind  Dec.    (v.  s,) 
H25 

W  6  Ind  Gas.  638,  12  C.  L.  J,  386, 


[92  1  0.  1826]  VEMtJtAPALLI  SBETHARAMAMMA  V   MAQANTI  APPI1H, 


829 


Behari  Ghose.  In  Bai  Amrit  v,  BaiManik 
(5)  which  is  a  case  of  a  transaction  by  the 
mother  as  guardian  of  her  son  and  of  her 
minor  daughter- in  law,  she  would  of  course 
be  the  natural  guardian  of  the  son,  but 
the  case  is  treated  as  if  she  was  the  manager 
de  facto  of  the  family  and  sales  for  valu- 
able consideration  the  proceeds  of  which 
were  applied  to  meet  the  family  necessities 
were  held  to  be  unquestionable.  Nathuram 
v.  Shoma  Chhagan  (6j  was  a  case  of  the 
father's  cousin  taking  charge  of  a  minor 
and  borrowing  money  to  meet  the  funeral 
expenses  of  the  deceased  father.  It  was 
held  that  he  had  sufficient  authoiity  to 
bind  the  minor  by  a  loan  if  it  were  neces- 
sary. Sadasiva  Iyer,  J  ,  in  Vembu  Iyer  v. 
Snmvasa  lyengar  (7)  citing  Hunooman 
Pcrsaud  Panday  v.  Babovee  MuniajKoon- 
weree  (1)  says  that,  when  the  act  is  done 
by  the  person  who  is  not  the  guardian  but 
who  is  the  manager  of  the  estate  in  which 
the  minor  is  interested,  the  latter  will 
equally  be  bound  if  under  the  circumstances 
the  step  taken  was  necessary,  proper  or 
prudent, 

On  the  other  hand,  no  case  has  been 
cited,  except  possibly  one  which  lays  down 
that  a  de  facto  guardian  has  no  power  to 
deal  nith  the  property  of  a  minor  for 
necessity.  On  the  other  hand  in  Aruna- 
chella  Reddi  v.  Chidambara  Reddi  (8)  it  is 
said.  "  It  is  well  settled  that  an  alienation 
may  be  validly  made  by  a  de  -facto  guard- 
ian (assuming,  of  course,  the  necessity)  " 
It  is  true  that  there  the  guardian  in  ques- 
tion was  a  natural  guardian.  But,  in  my 
view,  having  regard  to  the  authoiities  I 
have  cited,  that  can  make  no  difference 

Knshnan  Chetty  v,  Vellaichami  Theran  (9) 
which  was  referred  to  by  the  learned  Vakil 
for  the  respondents,  merely  lays  down  that, 
once  a  guardian  has  been  appointed  by  the 
Court,  the  rights  of  the  natural  guardian 
are  extinguished  It  will  be  noticed  at  page 
41*  the  learned  Judges  say  that  there  is  no 
proof  that  the  first  defendant's  mother  was 
the  de  facto  guardian,  In  Gopi  Ram  v.  Jeot 
Ram  (10)  the  mother  did  not  mortgage  the 
property  on  behalf  of  her  son  and  no  ques- 

'     (5)  12  B    H   0   K  79  at  p   81 

(6)  H  B.  562,  7  Ind  Dec  (N  s)  839 

(7)  17  Ind  Gas.  609,  23  M,  L,  J  638  at  p   646,  12  M 
L  T.  547 


(8)  13  M  L  J  223 

(9)  12  Ind     CUs  56  ,       ...    __,      _ 
(1911)  2  M,  W.  N  461,  21  M  L  J  1077 


(9)  12  Ind     CUs  568,  37  M   38,    10  M    L     T    383, 


(10)  82  Ind     Gas  616,    15  A  478,    21  A     L    J  430, 

A.L  R   1323  AU  514 

"  *Pageof  37M.-H.lMri !  ~~ 


lion  of  necessity  arose.  Mata  Din  v.  Ahmad 
Ah  '11)  is  again,  like  Imambandi  v.  Mut- 
baddi  (2)  a  case  under  the  Muhaminadan 
Law  The  family  weie  Muharnmadans  and 
weie  governed  by  the  Muhammadan  Law 
relating  to  guardianship.  It  is  pointed 
out  by  their  Lordnhips  that  the  ques- 
tion was  whether,  according  to  Muham- 
madan Law,  a  sale  by  a  de  facto  guardian 
if  made  foi  necessity  and  if  beneficial 
to  the  minor  is  altogether  void  or  mere- 
ly voidable  but  it  was  unnecessary  to 
decide  the  question,  as  the  appellant  had 
not  shown  that  the  sale  was  for  necessity 
or  was  beneficial  to  the  minor.  Reliance 
is  also  placed  for  the  respondent  on  a  re- 
mark of  Sadasiva  Iyer,  J.,  in  Thayammal  v. 
Kappanna  Koundan  (12)  "  that  nobody  else 
than  the  father  and  mother  of  a  minor 
(with  probable  exceptions  in  favour  of 
the  elder  brother  and  the  direct  male  and 
female  ancestors  of  the  minor)  is  entitled 
as  a  matter  of  natural  right  to  be  and  to 
act  as  a  guardian  of  a  minor's  person,  and 
property.  Recourse  must  be  had  to  the 
Court  Crepresenting  the  rights  of  the  King 
which  are  paramount  to  even  the  rights  of 
the  parents)  where  there  is  natural  guard- 
ian alive  "  I  am  unable,  to  see  how  this 
helps  the  respondent  in  the  present  case 
as  the  relation  in  question  is,  therefore,  a 
direct  male  ancestor  of  the  minor.  The 
decision  was  that  the  paternal  aunt  was  not 
a  natural  guardian.  A  decision  much  re- 
lied on  is  Nalannad  v  Kanbirampare 
Ravum  Nair  (13)  by  a  Single  Judge  of  this 
Court  where  in  the  case  of  a  nambudri 
illom,  the  step-mother  of  the  minors,  who 
was  managing  the  house- hold  and  looking 
after  them,  borrowed  money,  for  necessity. 
On  the  assumption  that  the  parties  were 
prima  facie  governed  by  Hindu  Law  and 
that  no  special  custom  had  been  set  up  in 
the  pleadings,  it  was  held  that  the  step* 
mother  had  no  legal  authority.  The  learn- 
ed Judge  said  ;  "  It  is  not  contended  .., 
that  the  de  facto  guardianship  gave  her  i.e , 
the  step  mother  any  right  to  mortgage  the 
estate  "  With  great  deference  I  am  unable 
to  see  first  how  the  dictum  applies  to  the 
facts  of  this  case  and  secondly ,  if  neces- 

(11)  13  Ind  CUB  976;  34  A.  213,  16  C  W  N  338,  11 
M  L  T  145,  (1912)  M  W.  N  183,  9  A  L  J  215,  15 
C  L  J  270,  14  Bom  L  R  192;  15  0  C  49;  23  M  •  L, 
J  6,  39  I  A  49  (P.  0 ) 

(12)  20  Ind  Caa  179,  38  M  1125;  27  M  L  J  285 
(13;  84  Ind  Gas  973;  47  M  L  J  (W6,  (19>4)  M  ty, 

N  792,  20  L  W.  876;  35  M.  L.  T  127;  A.  I.  K  1925 
Mad,  260, 


VBMULAPALLT  SBBTHAMAilMA  V.  MACUNfl  A^PIAH 


&  I.  0.  192(1] 


eary,  I  would  take  leave  to  say  that  if 
the  parties  were  governed  by  the  Hindu 
Law,  1  should  have  thought  it  might  have 
bten  well  contended  that  the  mortgage,  if 
for  necessity,  could  be  upheld. 

The  Court  below  has  found  that,  as  to 
one  of  the  pales  evidenced  by  Ex.  IV  which 
is  the  only  one  question  before  us,  there 
was  necessity  to  the  extent  of  Rs.  275  out 
of  a  total  consideration  for  Rs.  400.  It  is 
said  by  the  appellants  that  there  has  been 
a  ratification  by  Ex.  Ill  by  the  minor  011 
attaining  his  age  of  this  alienation  by  his 
de  facto  guardian.  On  the  other  hand,  it 
is  said  that  any  alienation  not  for  neces- 
sity is  void  and  not  voidable  and  as  there 
can  be  no  ratification  of  a  void  transaction 
it  is  of  no  effect  in  this  case.  It  is,  1  think, 
clear  that  an  alienation  by  a  de  jure  guard- 
ian or  a  natural  guardian  is  voidable  and, 
as  I  am  inclined  to  hold  the  powers  of 
these  guaidians  are  similar,  1  think  a 
transaction  entered  into  by  ade  facto  guard- 
ian not  for  necessity  is  only  voidable  and, 
therefore,  ratified  by  the  minor  attaining 
his  age.  In  Chetty  Colum  Comara  Venca- 
tachella  Reddyer  v.  Rajah  Rungasawmy 
Streemunth  lyengar  Bahadur  (14)  the  minor 
recognised  a  transaction  made  during  his 
minoiity  by  his  adoptive  mother  and  guaid- 
ian.  This  was  upheld  without  determin- 
ing the  question  as  to  the  power  of  a 
Hindu  widow  as  guardian  to  create  a 
charge  during  the  minority  of  the  minor 
son. 

Further,  it  is  said  that  this  suit  is  barred 
by  limitation.  Tha-sale  is  dated  28th  Feb- 
ruary 1907.  The  suit  was  brought  on  the 
first  March  1919  which  is  admittedly  the 
last  day  of  the  12  years  allowed.  But  it  is 
said  in  the  letter,  Ex.  Ill,  that  the  trans- 
feree had  had  possession  delivered  to  him 
sometime  before  the  date  of  the  sale  deed. 
The  words  which  have  been  retranslated 
are  "  whether  before  the  delivery  of  pos- 
session to  j  ou  in  pursuance  of  the  sale  be- 
fore  now  or  after"  The  words  "before  now" 
are  indefinite,  bu1;  they  might  refer  to  pos- 
session being  given,  on  the  same  day. 
There  is  further  some  contention  on  the 
other  side  that  these  persons  were  already 
in  possession  as  tenants.  However  that  may 
be,  the  matter  is  much  too  indefinite  for  us 
to  attach  the  slightest  weight  to  those 
words.  I,  therefore,  think  that  this  point 
fails.  This  question  of  limitation,  though 

(14)  8  M.  I.  A.  319;  4  W.  R.  P,  0.  71;  1  Suth.  P,Q,  J 
7,  1  8u,  P»  0,  J,  785;  19  fi,  K,  5W, 


(1 
37 


dealt  with  by  the  District  Munsif  and 
found  in  favour  of  the  defendants  was  not 
considered  by  the  learned  Subordinate 
Judge.  In  my  view,  there  is  nothing  in 
the  point 

I  think  the  learned  Subordinate  Judge 
is  wrong  in  holding  that  the  alienation 
made  by  the  de  facto  guardian  is  a  void 
transaction.  In  my  view,  the  appeal  must 
be  allowed  and  the  plaintiffs  suit  dismissed 
with  costs  throughout. 
Vtswanatha  Sastrl,  J,— Defendants 
Nos.  1  to  5  are  the  appellants.  The  suit 
was  for  a  declaration  that  the  alienations 
made  by  plaintiff's  maternal  uncle  during 
his  minority  were  not  binding  on  him,  and 
for  recovery  of  the  items  alienated. 

The  alienations  were  made  under  "two 
sale-deeds  of  the  dates  28thf«February 
1907  (Ex.  IV)  and  7th  October  1913,  and 
the  suit  was  instituted  (it  was  said  on  the 
last  day  of  limitation)  in  1919.  The  Dis- 
trict Munsif  dismis5ed  the  suit,  and  on 
appeal  the  Subordinate  Judge  gave  plain- 
tiff a  decree  for  possession.  The  conten- 
tions urged  in  second  appeal  are:  — 

(1)  That   the  alienations  by  way  of  sale, 
by    the  natural  uncle  who  was  not    the  de 
jure  guardian  of  plaintiff  were  void,  and 

(2)  that  the  suit  was  barred  by  limitation 
with  respect  to    the  items  covered  by  Ex. 
IV,  as    defendants  were  placed  an  posses- 
sion  prior  to  the    da,te   of  Ex.  IV. 

The  second  appeal  first  came  on  for  hear- 
ing before  Rameeam,  J.,  who  referred  it  to  a 
Bench  "as  the  matter  (which  forms  the 
subject  matter  of  the  first  contention)  was 
not  concluded  by  authority  so  far  as  the 
Hindu  Law  is  concerned.1* 

It  was  argued  before  us  that  under  the 
Hindu  Law,  the  father,  the  mother  and 
failing  them  the  King,  were  the  guardians 
of  an  infant;  that  no  other  relation  was 
the  guardian ;  that  de  facto  guardians 
were  no  better  than  intermeddlers  ;  and 
that  alienations  by  de  facto  guardians  were 
void  as  was  laid  down  by  the  Privy  Coun- 
cil in  Imambandi  v.  Mutsaddi  (2).  That 
case  related  to  a  Muhammadan  minor;  their 
Lordships  based  their  decision  on  Muham- 
madan Law  texts;  and  so  far  as  I  am  able 
to  see,  I  do  not  find  reference  in  the  judg- 
ment to  any  decided  cases  concerning  Hindu 
minors.  Alienations  by  the  de  facto  guard- 
ians of  Hindu  minors  have  come  up  very 
frequently  before  Courts,  and  our  attention 
has  not  been  directed  to  any  decided  case 
in  which  it  has  been  held  that  such  alien* 


[92  I.  0,  1926]  YEMTJLAFALLI  SBETHAMAMMA  V,  MAGANTI 


831 


ation  was  per  se  void,  apart  from  any  ques- 
tion as  to  whether  it  was  for  legal  neces- 
sity or  not.  It  was  said  that  this  may  be 
due  to  the  fact  that  the  point  was  not  raised 
in  those  cases  but,  as  observed  by  Maclean, 
C.  J.,  in  Mohammad  Mondul  v  Nafur  Mon- 
did  (3)  "the  absence  of  judicial  authority 
suggests  that  the  point  has  not  been  legard- 
ed  as  open  to  serious  argument/1 

So  far  as  Hindu  Law  goes,  it  appears  to 
me  that  theie  is  nothing  in  it  which  limits 
guardianship  only  to  the  father,  the  mother, 
and  failing  them  the  king.  Macna^hlen 
in  his  Principles  and  Precedents  of  Hindu 
Law  says  "that  in  default  of  the  father  and 
mother  an  elder  brother  of  a  minor  is 
competent  to  assume  the  guardianship  of 
him  In  default  of  such  brother  the  pater- 
nal relations  generally  are  entitled  to  hold 
the  office  of  guardian,  and  failing  such 
relations,  the  office  devolves  on  the  mater- 
nal kinsmen,  according  to  their  degree  of 
proximity,  but  the  appointment  of  guardian 
universally  rests  with  the  ruling  power.11 
(See  Vol.  I,  pages  103,  104).  And  in  Vol  II 
(Precedents)  Case  1IL  at  page  201  gives  the 
opinion  of  parents  based  on  the  authority 
of  the  Uayabhaga  Dayatatwa,  Dayakrama 
Sangraha  that  the  husband's  sister's  son 
is  the  guardian  of  a  childless  widow,  who 
is  a  minor  It  was  said  that  in  the  absence 
of  the  father  and  mother,  "recourse  must 
be  had  to  the  Court  (representing  the  rights 
of  the  king  which  are  paramount  to  even 
the  rights  of  the  parents  where  there  is 
no  natural  guardian  alive11  as  observed  by 
Sadasiva  Iyer,  J,  in  Thayammal  v  Kup- 
pamma  Koundan  (12).  But  ifc  must  be  re- 
membered that  the  learned  Judge  in  the 
previous  sentence  includes  among  natural 
guardians  the  elder  brother  and  the  direct 
male  and  female  ancestors  of  the  minor, 
although  according  to  respondents1  Vakil, 
they  would  not  be  the  natural  guardians 
under  Hindu  Law.  Applications  to  Courts 
can  only  be  made  under  the  Guardians  and 
Wards  Act,  and  it  has  been  held  by  a 
Full  Bench  of  the  Calcutta  High  Court  in 
Ram  ChunCer  Chuckerbutty  v.  Broionath 
Mozumdar  (15)  that  this  act  would  not  affect 
or  alter  any  provision  of  Hindu  Law  as  to 
guardians  who  do  not  avail  themselves  of 
the  act  It  is  true  that  in  that  case  the 
person  who  acted  as  guardian  of  the  minor 
was  the  mother;  but  this  circumstance 
would  not,  in  my  opinion,  make  any  differ- 

(15)  4  0.  929;  4  0.  L.  R.  247;  4  Ind,  Jur,  343;  2  Shome 
tt,  K,  212;  2  Ind,  Dec,  (N,  s.) 


en^e.    Coming  to  decided  cases,  it  was  held 
in   Mohamud    Mondul   v     Nafur    Mondul 

(3)  on  the  authority  of  the  Privy   Council 
case    in    Hunooman    Persand    Panday    v 
Babooee  Munra]  Koonweree  (1)  that    a  sale 
by  a  de  facto  guardian  (it  was    the    grand- 
mother, in  case  of  necessity)  was  valid.   And 
in  Arunachella  Keddi  v,  Chidambara  Reddi 
(8)  White,  C.  J  ,  and  Benson,  J  ,    heM  that 
4lu  is  well  settled  that  an  alienation  may  be 
validlv  made  by  a  de  -facto  guardian  (assum- 
ing, of  course,  the  necessity)  "  In  Tirapayya 
Malluh  v,  Ramaswami  V16)  it  was  held  that 
natural  mother    was  a    'lawful  guardian'1 
for  the  purpose  of  s  21   of    the  Limitation 
Act,  even  though  there  was  a  testamentary 
guardian  named  in  the  Will  of  the  adoptive 
father  who  was  unwilling  to  act     In  Nathu- 
ram  v  ShomaChha&an  (G)  a  debt  contracted 
by  the  father's  consm  for    necessary  pui- 
poses   urn   hrld    to   bind    the   owner      Al- 
though it  is  no  authority  in  the  sense  of  its 
being  a  judicial   decision,   I  may  state  that 
in  Adttar  Chandra  Dutt  v   Kirtirasa  Btrage 

(4)  such  an  eminert  lawyer  as  Dr   Rash 
B°hary  Gosh  conceded  that  the  powers  of 
a  de  facto  guardian  (of  a  Hindu)   were  the 
same  as  those  of  a  de  jure  guardian      Our 
attention  was  drt.wn  to  the  observations  of 
Sadasiva  Iyer,  J  mThayammal  v.Kuppanna 
Koundan  (12)  wherein  the  learned  Judge 
1  olds    that     "Under  Hindu,  Law,  nobody 
else  than  the  father  and  mother  of  a  minor 
(with  probable  exceptions  in  favour  of  the 
elder  brother  and  the  direct  male  and  female 
ancestors  of  the  minor)  is     entitled  as   a 
matter  of  natural  right  to  be  and  to  act  as  a 
guardian  of  a  minor  person  and  properties  " 
In  that  case  the  alienation  by  the  paternal 
aunt  was  found  to  be  "for  no  necessity"  and 
the  second  appeal  could  have  been  decided 
only  on  this  finding  \uthout  considering 
the  question    under    Hindu    Law.    I  may 
also  state  that  the  "probable  exceptions'' 
which  the  learned  Judge  recognises,   sup- 
ports the  view  that  guardianship  under  the 
Hindu  Law  is  not  confined  only  to  the  father, 
mother,  and  the     king,  as  contended   for 
by  respondent's  Vakil.    The  learned  Judge 
relies  on    the  decisions  of    the     Calcutta 
High  Court  Kristo  Kissor  Neoghy  v.  Kader- 
moye  Dossee(n)andBhiknoKoerv.  Chamela 
Koer  (18)  La  support  of  his  view.  They  were 
both  cases  in  which  the  Court   was  moved 

(16)  19  Ind.  Cas.  362;  24  M.  L.  J.  428,  (1013)  M.  W, 
N.  364. 

(17)  20  L,  R.  583 

(18)  2  0,  W,  N,  191, 


832 


BAJRANG  BALI  V.  MAHRAJU 


[92  I.  C. 


to  appoint  a  guardian,  and  there  was  no 
question  as  to  the  binding  nature  of  an 
alienation  made  by  de  facto  guardian,  it 
may  here  be  stated  that  the  case  in  Afo/m- 
nand  Mondul  v.  Nafar  Mondul  (3)  is 
referred  to  with  approval  by  Sadasiva  Iyer, 
J.,  Ventbu,  Iyer  v.  tSrimvasa  lyengar  (7\ 
Reference  was  made  to  a  casein  Nalannad 
v.  Panbirampare  Rauum  Nair  (13)  where 
a  Single  Judge  of  the  Court  held  that  a 
de  facto  guardian  of  a  Hindu  Narnbudri 
minor  a  (step-mother)  was  no  better  than 
an  intermeddler,  and  had  no  right  to  re- 
present a  minor.  It  does  not  appear  that 
any  of  the  cases  referred  to  here  were 
brought  to  the  notice  of  the  learned  Judge. 
Decisions  under  the  Muhammadan  Law 
have  no  bearing  on  the  present  question; 
and  I  am  clearly  of  opinion  that  the  right 
of  -a  de  facto  guardian  to  deal  with  the  pro- 
perty of  a  Hindu  minor  has  been  recognised 
by  our  Courts  ever  since  the  decision  cf 
the  Privy  Council  in  Hunoomanpersand 
Panday  v.  Babooee  Munraj  Koonwerec  (1) 
provided  the  alienation  was  for  necessity. 

I  may  here  state  that  in  the  present  case 
the  de  facto  guardian  was  the  maternal 
uncle  who  took  charge  of  the  minor  after 
his  mother's  death;  and  the  evidence  of  D. 
W.  No.  1  is  to  the  effect  that  the  parternal 
aunt  with  whom  the  minor  was  for  a  time 
was  not  in  a  position  to  maintain  herself. 
So  far  as  Hindu  society  in  South  India  goes 
the  maternal  uncle  is  treated  as  the  closest 
relation  of  a  person  next  to  his  father  and 
mother;  and  at  all  ceremonies  at  which 
presents  are  given,  it  is  his  that  is  first 
handed  over, 

Appellant's  Vakil  next  contended  that 
the  alienations  now  sought  to  be  set  aside 
were  ratified  by  plaintitf ;  and  that  they 
were,  therefore,  valid;  apart  from  any  ques- 
tion of  maternal  uncle  being  only  the  de 
facto  guardian.  Exhibits  II  and  III  are  two 
letters  passed  on  by  plaintiff  to  the  vendees 
on  9th  November  1918,  wherein  he  approved 
of  the  sale-deeds  of  the  dates  7tU  October 
1913  and  1st  March  1907.  That  such  a  rati- 
fication would  make  the  alienation  binding 
will  be  clear  from  the  decision  in  Chetty  Colum 
Cornara  Vencatachella  Reddyer  v.  Rajah 
Rungatawmy  Streemunth  lyengar  Bahadoor 
(14). 

It  was  also  urged  before  us  that  so  far 
as  the  alienation  under  Ex.  IV  went,  the 
suit  was  barred  by  limitation,  as  posses- 
sion was,  as  stated  in  it,  given  before  its 
date  (28th  February  1907);  that  the  evideuos 


was  that  it  \\asgiven  during  the  previous 
cultivation  season  (August  1906);  and  that 
time  ran  from  August  1906.  The  question 
under  Art  144  of  the  Limitation  Act  would 
be,  when  the  possession  became  adverse  to 
the  plaintiff.  The  District  Munsif  held  that 
it  became  adverse  when  possession  was 
given,  but  the  Sub-Judge  did  not  consider 
this  question.  Wince  possession  was  given 
in  view  of  a  contemplated  sale,  it  cannot 
be  said  that  it  became  adverse  to  the  ven- 
dor from  the  date  it  was  given  in  case 
the  sale  was  held  not  binding  on  the 
minor. 

The  sale  to  the  father  of  defendants  Nos.  1 
to  3  has  been  found  by  both  Courts  to  be 
binding  to  the  extent  of  Rs.  275,  and  the 
sale  to  the  5th  defendant  has  been  held  to 
be  wholly  binding.  In  my  view  the  effect 
of  the  ratification  evidenced  by  Ex.  Ill  is  to 
make  the  sale  to  the  father  of  defendants 
Nos.  1  to  3  wholly  binding  on  plaintiff. 

I  would,  therefore,  allow  the  appeal,  and 
reversing  the  decree  of  the  Court  below, 
dismiss  the  suit  with  costs  throughout. 

v.  N.  v.  *  Appeal  allowed. 


OUDH  CHIEF  COURT. 

SECOND  CIVIL  APPEAL  No.  240  OF  1925. 

November  25,  1925. 
Present; — Mr.  Justice  Stuart,  Chief  Judge, 

and  Mr.  Justice  Hasan. 
BAJRANG  BALI  AND  OTHERS- 
DEFENDANTS — APPELLANTS 

versus 

Musammat  MAHRAJIA — PLAINTIFF 
— RESPONDENT. 

Adverse  possession — Mortgagor  and  mortgagee — Ac- 
quiescence. 

Ab  between  the  mortgagor  and  the  mortgagee 
neither  exclusive  possession  by  the  mortgagee  for  any 
length  of  time  short  of  the  statutory  period  of  sixty 
years,  nor  any  acquiescence  by  the  mortgagor  not 
amounting  to  a  release  of  the  equity  of  redemption, 
will  be  a  bar  or  defence  to  a  suit  for  redemption  if  the 

Arties  are  otherwise  entitled  to  redeem,  [p.  833,  col, 


Khiarajmal  v.  Daim,  32  0.  296;  0  0.  W.  N.  201;  2  A. 
L  J  71,  7  Bom.  L,  R.  1;  1  0  L.  J.  584,  32  I  A.  23,  8 
Sar  P.  0.  J.  734  (P.  0 ),  followed. 

Appeal  from  a  decree  of  the  Subordinate 
Judge,  Fyzabad,  in  Remand  Appeal  No.  78 
of  1933,  dated  the  3rd  March  1925,  uphold- 
ing that  of  the  Munsif,  Sultanpur,  in  Regu- 
lar Civil  Suit  No.  45  of  1923,  dated  the  10th 
of  April 


I.  0.  1926J 


gtJBRAMANIA  AIVAU  V.  KRISHNA 


833 


Mr.  Kadha  Kishan,  for  the  Appellants, 
Mr.  H.  K  Ghose  and  Mr.  M.  If.   Qidiai  for 
Mr.  A.  P.  Sen,  for  the  Respondent. 

JUDGMENT.—  This  is  a  defendants1 
appeal  in  the  suit  brought  by  the  respond- 
ent for  redemption  of  the  mortgage  of  the 
14th  of  April  1881  in  respect  of  a  1-armas 
share  in  village  Jalili,  Pargana  Jagdispur, 
in  the  District  of  Sultanpur.  This  mortgage 
was  made  by  Musammat  Gulaba  in'  favour 
of  one  Chauharja  Bakhsh  Musammat  Gu- 
laba is  now  represented  by  her  daughter, 
Musammat  Maharajia,  the  plaintiff-respond- 
ent and  the  defendants-respondents  are  the 
representatives  of  the  original  mortgagor, 
Chauharja  Bakhsh.  There  were  several 
defences  to  this  simple  suit  for  redemption 
but  they  have  all  been  set  afc  rest  by  con- 
clusive decisions  of  this  Court  and  of  the 
Courts  below  except  the  defence  that  the 
claim  for  redemption  was  barred  by  the  12 
years'  adverse  possession  of  the  mortgagee 
and  his  representatives  over  the  mortgaged 
property. 

The    lower  Court    in  disposing  cf   this 
defence    observes  that  only  a  feeble  and 
short  argument  was   advanced  in  support 
of  that  plea.    We  can  say  the  same  of  the 
arguments  addressed  to  us.    Our  attention 
was  drawn  to  certain    proceedings   which 
arose  in  the  year   1893  on  the  application 
of  Musammat  Gulaba  in  the  Courts  of  Reve- 
nue, dated  the  17th  of  August  1893  by  which 
she  prayed  for  the  entry  of  her  name  in 
respect    of    the    property  in    suit    in    the 
column  of  proprietors.    The    predecessor- 
in-interest  of  the  defendants  made  a  state- 
ment ,m  reply  to  Musammat  Gulaba's  prayer 
that  his  father's    name  had  stood    in  the 
khewat  in  respect  of  the  entire  village  and 
that  since  the  death  of  his  father  the  entry 
had  been  made  in  his  own  name.     We  do 
not  think  that  these  events  have  the  effect 
of  converting  the  mortgagee's  possession  in- 
to that  of  hostile  possession  as  against  the 
interests  of  the  mortgagor     The  possession 
originally  and  admittedly  commenced  under 
the  contract    of  mortgage  of    the   14th  of 
April   1881.    "As  between    the  mortgagor 
and  the  mortgagee  neither  exclusive  pos- 
session by  the  mortgagee  for  any  length  of 
time  short  of  the  statutory  period  of  sixty 
years,  n-fcr  any  acquiescence  by  the  mortga- 
gor   not    amounting  to   a    release  of  the 
equity  of  redemption  will  be  a  bar  or  de- 
fence to  a  suit  for  redemption  if  the  parties 
are  otherwise  entitled  to   redeem.1'  Khai- 

53 


rajmal  v.  Daim  (I).  We  conceive  no  evi- 
dence of  release  of  the  equity  of  redemption 
in  the  present  case. 

The  appeal  fails  and  is  dismissed  with 
costn. 

N  H  Appeal  dismissed, 

(1)  32  C  298,0  C  W  N  201,2  A  L  J  71,  7  Bom 
h  H  1,  1  0,  L  J  584,  32  I  A  23,  8  Sar  P.  0  J  734 
(V  C) 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No.  86  OP  1925. 

AND 
CIVIL  REVISION  PETITION  No.  147  OF  1925. 

September  8,  1925. 

Present  —Justice  Sir  Charles  Gordon 
Spencer,  KT.,  and  Mr.  Justice 

Madhavan  Nair 

S  R  SUBUAMANIA  AIYAR— 

DEFENDANT  No.  1 — APPELLANT  IN  A.  A.  0. 

No.  86  OK  1925  AND  PETITIONBR  IN  C.  R.  P. 

No    147  OF  1925 

versus 

L.  A.  KRISHNA  IYER—PLAINTIFF— 
— RESPONDENT  IN  BOTH. 

Cnnl  Procedure  Code  (Act  V  of  1008),  s  tf>  0  XXI, 
rr  57,  6r4)  90  -Execution  if  decree — Sale  without 
attachment,  latidity  of — Application  to  stay  sale  by 
tcason  of  want  of  easting  attachment ,  dismissal  of — 
.ip/j<?a/,  ivhether  ties 

Per  Spencer,  J  -  -An  order  of  an  Executing  Court 
dismissing  an  application  by  a  judgment-debtor  to 
stay  an  auction-sale  m  execution  of  a  money-decree  on. 
the  ground  that  there  is  no  subsisting  attachment  oa 
the  property,  is  of  an  mterlocutoiy  natuie  and  is  not 
appealable  [p  834,  col  2  ] 

Wheie  the  sale  has  taken  place,  the  judgment- 
debtor's  remedy  lies  in  applying  to  the  Court  under 
r  00  of  O  XXI,  C  P  C,,  to  have  the  sale  set  aside. 
[p  834,  oil  1] 

IJei  Madhavan  Aratr,  J  —An  attachment  is  a 
measure  i  esoi  ted  to  for  the  protection  of  the  decree- 
holder  and  the  purchaser  against  intermediate  aliena- 
tion and  is  only  a  step  to  be  taken  by  the  Executing 
Court  m  bunging  to  sale  the  propeities  of  a  judg- 
ment-debtor If  this  step  is  omitted,  the  omission 
amounts  only  to  an  irregularity  and  the  sale  can  be 
set  aside  only  if  it  has  resulted  in  substantial  loss. 
The  absence  of  attachment  does  not  affect  the  jurisdic- 
tion of  the  Executing  Court  to  sell  the  property,  [p. 
837,  col  1 1 

Sharoda  A/V»?/ee  Burmonee  v  Wooma  Moyce  Bur- 
monee,  8  W  R  1),  Mumappa  Naik  v.  Svbramania 
Ayyar,  18  M  437,  5  M  L  J,  60,  6  Ind.  Dec.  (N.  s) 
654,  V day nt ha  Muppan  v  tiubramamam  Chetti,  18 
Ind  Cas  498,  24  M  L.  J.  70,  13  M  L  T  207,  (1913)  M. 
W.  N.  136  and  Stvakolundu  PiUai  v  Ganapathy  Iyer, 
S7  Ind.  Cas.  964,  (1917)  M.  W.  N  89,  followed. 

Appeal  against  and  petition  under  s.  115 
of  Act  V  of  1908  and  s.  107  of  the  Govern- 
ment of  India  Act  to  revise  an  order,  dated 
the  29th  November  1924,  of  the  Court  of  the 


834 


fstBRAMANIA  A1TAB  V,  KRISHNA  HER, 


[92  I.  0,  1028] 


Subordinate  Judge,  Coimbatore,  in  E.  A. 
No.  732  of  1921,  in  E.  P.  R,  No.  35  of  1^24  in 
0.8.  No.  117  of  1918. 

Mr.  T,  R.  VenkataramaSastriar  (Advocate- 
General),  for  the  Appellant. 

Mr.  T.  R.  Ramachandra  Iyer,  for  the  Re- 
spondent. 

JUDGMENT. 

Spencer,  J. — The  respondent  having 
attached  the  appellant's  immoveable  pro- 
perties before  judgment,  obtained  a  decree 
for   Rs.  2,224-12-0    against    him    and    his 
mother  on  28th  January  1919.    Afterwards 
he  applied  through  E.  P.  No.  35  of  1924  for 
gale  of  the  properties  which  were  attached 
before    judgment.    In    the    interval     two 
petitions  for  executing  the  same  decree  had 
been  rejected  owing   to  the  execution  peti- 
tioner's fault     The  appellant  filed  0.  M.  P. 
No.  722  of  1924  on  November    18th  1924, 
asking  (1)  that  the  auction-sale  fixed  for 
November  24th,  1924,  should  be  stopped,  (2) 
that  the  whole  proceedings  in  the  pending 
E.  P.  R.  No.  35  should  be  vacated,  and  (3) 
that  E.  P.  R  No.  35  should  be  dismissed. 
The    Subordinate   Judge     of    Ooimbatore 
refused  these  reliefs  and    dismissed    the 
(X  M.  P.    From  that  order  the  appellant 
has  tiled  an  appeal  and  a  revision  petition 
to  the  High  Court  on  March  2nd,  1925.   The 
sale  took  place  on  February  9th,  1925,  and 
awaits  the  lower  Court's  order  of  confirma- 
tion under  0.  XXI,  r.  92,  C.  P.  C.    The  ap- 
pellant's Vakil  contends  that  the  attachment 
of  the  property  ceased  by  virtue  of  O.  XX  i, 
r.  57,  upon  the  dismissal  for  default  of  the 
prior  execution  petitions,  the  attachment 
before  judgment  being  good  only  until  the 
first  execution  petition  aiter  the  passing  of 
the  decree  was   dismissed  [Vide  Meyappa 
Chettiarv  Chidambaram  Chettiar  (1)J,  and 
that  the  sale  of  the    property    without   a 
previous  subsisting  attachment  was  illegal 
In  my  opinion    there  is  a  short  answer 
to  this  appeal  and  the  accompanying  revi- 
sion petition.    The    sale    having    already 
taken  place  the  judgment-debtor's  remedy 
lies  in  applying  under  r.  90,  of  0.  XXI  to 
have  it  set  aside,  and  from  the  order  to  be 
passed  by  the  Executing  Court  he  will  have 
a  right   of   appeal  to  this    Court    under 
O.XLllI,r.l(j).O.P.  C. 

It  is  too  late  to  stop  the  sale  after  it  has 
taken  place  and  at  the  same  time  it  would 
be  premature  on  the  part  of  this  Court  to 


(1)  79  Ind.  Cas,  144;  46  M.  L.   J,  415;  34  M,   L.  T. 
M.  W,  H  392;  A,  I  R,  1924  Mad  494;  47 


set  aside  the  sale,  the  power  to  do  so  being 
vested  in  the  first  instance  in  the  Executing 
Court.    The  appellant  did  not  obtain   an 
order  from  the  High  Court  to  stay  the  sale 
before  it  was  concluded.    We   should  not 
make    a     declaration    or    pronouncement 
of  opinion  as    to  the    validity  of   a  sale 
while     proceedings     for    confirming    or 
setting  it  aside  are  pending  in  the  Court 
below,  and  there  is  no  room  for  our  inter- 
fering otherwise  with    the  course   of  the 
execution  petition  which  will  be  finally  dis- 
posed of  only  when  final  orders  are    passed 
under  r.  92  and  when  it  is  known  to  what 
extent  the  decree  has  been  satisfied.    The 
fact  that  there  is  no  right  of  appeal  provid- 
ed   in  the  C.  P.  C.    against  orders  under 
0,  XXI,  rr.  64  and  66  for  sale  of  property 
indicates  that  such  orders  are  of  an   inter- 
locutory nature.    The  appealability  of  an 
order  for  sale  was  raised  m  Namuna    Bibi 
v.  Roshun  Meah  (2)  but  not  argued  with  as- 
surance vide  page  48G*.  The  learned  Judges 
considered  thai  an  appeal  lay  under  s.  47, 
C.  P.  C.,  as  it  was  a  question  between  the 
parties  in  execution.    This  Court  has  appli- 
ed s.  47  to  applications  to  set   aside  a  sale 
that  has  been  illegally  held,    apart  from 
irregularities  in  publishing  or  conducting 
it  [vide  Anantharama  Iyer  v.  Vettath  Kutti- 
malu  Kovilamma  (3),  and  Mathiah  Chettiar 
v.  Bawa  Sahib  (*).]    But  the  petition   of 
November  18th,  out  of  which  this  appeal 
and  revision  petition  have  arisen,  was  not  a 
petition  to  set  aside  a  sale,  as  no  sale  had 
been    held   when  it  was   presented.    The 
order  of  the  Subordinate  Judge  dismissing 
it  was  passed  before  any  sale  was  held  and 
thus  it  cannot  be  treated  as  an  order  upon 
an  application  under  s.  4  7  to  set  aside  an 
illegal  sale.    The  grounds  upon  which  the 
judgment-debtor  tried  to  stop  the  sale  were 
that  the  previous  execution  petitions   were 
dismissed  and  that  their  dismissal  put  an 
end  to  the  attachment.    He  did   not   then 
raise  the  contention  which  he  has  raised 
here,  viz.,  that  the  attachment  before  judg- 
ment only  enures  for  the  first   execution 
application  after  decree*    If  the  judgment 
debtor  had  put  forward  this  objection  before 
the  sale  took  place,  the  decree-holder  might 
have  overcome  the  difficulty  by  applying  for 
a  fresh  attachment  of  the  lands.    After  the 

(2)  9  Ind.  Caa.  558;  38  C.  482,    15  0.  W.  N.  428;  13 
C.L.J.621. 

(3)  34  Ind.  Cas.  829;  30  M,  L.  J.  611;   19  M,  L.  T, 
357,  3  U  W.  504. 

J4)  26  Ind.  Oas.  46;  27  M.  L,  J.  605;  19  L.  W.  969. 

~ 


8UBRAMANU  1IYAE  V.  KRISHNA  IYER. 


[92 1.  0, 1926] 

sale  had  bsen  held,  it  does  not  appear  that 
he  made  an  attempt  to  have  the  sale  set 
aside^  by  the  Sub-Judge  under  s.  47  as 
illegal  for  want  of  a  fresh  attachment  upon, 
this  ground,  which  has  not  been  considered 
in  the  Judge's  order  of  November  29th 
1924,  and  the  present  appeal  cannot  be 
treated  as  an  appeal  against  an  order  which 
the  Sub  Judge  might  have  made,  if  such  a 
contention  had  been  put  forward  at  the  pro- 
per time,  For  these  reasons,  I  consider 
that  the  only  order  we  can  make  is  to  dis- 
miss the  appeal  with  costs.  The  revision 
petition  being  only  an  alternative  remedy 
to  the  appeal  is  dismissed  without  costs 

Madhavan  Nair,  J.—  This  appeal 
arises  from  an  application  made  by  the 
appellant- judgment-debtor  objecting  to  the 
sale  of  certain  properties  in  execution  of 
the  decree  in  0.  8.  No.  117  of  1918,  Sub- 
Court,  Coimbatore,  on  the  ground  that  the 
properties  in  question  had  not  been  attach- 
ed prior  to  the  order  for  sale.  The  decree- 
holder,  the  respondent  before  us,  had  ob- 
tained a  decree  for  money  against  the  appel- 
lant and  had  attached  the  said  properties 
before  judgment.  After  the  decree  he  filed 
two  successive  applications  for  execution 
which  were  returned  by  the  Court  for  mak- 
ing some  corrections  and  for  the  production 
of  some  papers.  As  the  directions  of  the 
Court  were  not  complied  with  these  peti- 
tions were  eventually  dismissed.  The 
decree-holder  afterwards  filed  E.  P.  No.  35 
of  1922  for  the  execution  of  his  decree  by 
sale  of  the  properties  and  the  sale  was  fixed 
for  the  24th  November  1924.  When  the 
appellant  became  aware  of  the  said  execu- 
tion petition  he  applied  to  the  Sub-Uourt 
in  E.  A.  No.  722  of  1921  praying  "to  stop 
the  sale  fixed  for  24th  November  1924  and 
to  vacate  the  whole  proceedings  in  fi.  P.  R. 
No.  35  of  1924  and  to  dismiss  the  petition 
and  to  pass  such  other  and  further  orders 
as  may  be  just  and  necessary.11  The  Sub- 
ordinate Judge  held  that  since  the  two 
petitions  which  were  dismissed  for  non- 
compliance  with  .the  Court's  order  could 
not  be  considered  as  execution  petitions  in 
accordance  with  law,  their  rejection  could 
not  operate  to  vacate  the  existing  attach- 
ment under  O.  XXI,  r.  57,  C  P.  C.,  and  that, 
therefore,  no  re-attachment  was  necessary 
to  bring^the  properties  to  sale.  In  this  view 
he  held  that  there^was  no  need  to  stop  the 
sale  or  to  dismiss  the  execution  petition 
(E.  P.  R.  No.  35  of  1924)  and  that  the  re- 
spondent has  rightly  brought  the  attached 


835 


properties  to  sale.  The  properties  have 
since  been  sold  and  purchased  by  the  decree- 
holder 

It  is  urged  by  the  appellant  that  the 
petitions  which  were  dismissed  were  execu- 
tion petitions  in  accordance  with  law,  that 
since  they  were  dismissed  for  the  default  of 
the  decree-holder,  the  attachment  of  the 
properties  had  ceased  under  0.  XXI,  r.  57, 0. 
P  C  ,aad  that  as  no  further  attachment  was 
made,  the  order  of  the  Subordinate  Judge 
to  proceed  with  the  sale  of  the  properties 
should  be  set  aside  Besides  supporting  the 
order  of  the  learned  Judge  on  the  reasons 
contained  in  it,  the  respondent  in  this  Court 
has  put  forward  an  additional  ground  in 
further  support  of  the  order,  namely,  that 
even  if  the  attachment  has  ceased  under 
0.  XXI,  r.  57,  C.  P  C ,  the  failure  to  re- 
attach  the  properties  prior  to  the  sale  is 
only  an  irregularity  and  not  an  illegality 
vitiating  the  sale,  and  that  unless  the  Court 
is  satisfied  that  the  petitioner  sustained 
substantial  injury  by  reason  of  such  irregu- 
larity the  Court  should  not  set  aside  the 
order.  He  has  also  argued  that  no  appeal 
lies  against  the  order  passed  by  the  Sub- 
ordinate Judge  under  s  47  of  the  C.  P.  C. 

The  questions  for  our  consideration  aris- 
ing upon  the  above  contentions  of  the  re- 
spective parties  are:  (1)  Are  the  petitions 
diamissd  for  default  by  the  Subordinate 
Judge  for  non-compliance  with  his  direc- 
tions execution  petitions  in  accordance  with 
law?  (2)  Does  O.  XXI,  r.  57,  C.  P.  C  ,  apply  to 
the  facts  of  this  case?  (3)  If  questions  Nos.  1 
and  2  are  decided  in  favour  of  the  appel- 
lant, is  the  sale  of  properties  without  an 
attachment  void  ab  initio  or  is  absence  of 
attachment  prior  to  sale  only  an  irregular- 
ity ?  (1)  Does  an  appeal  lie  against  the 
order? 

As  regards  question,  No.  1, 1  have  no  doubt 
the  opinion  of  the  Subordinate  Judge  is  clear- 
ly wrong.  The  respondent's  learned  Vakil 
himself  has  only  very  faintly  attempted  to 
support  it,  I  have  carefully  examined  the 
second  petition  dismissed  for  default  by  the 
Subordinate  Judge.  I  am  satisfied  that  it 
has  complied  with  all  the  requirements 
damanded  by  the  Code  and  that  it  is  an 
application  in  accordance  with  law  under 
0.  XXI,  r.  17,  C.  P,  C.  The  paper  that 
was  called  for  but  not  produced  for  want 
of  time,  viz.,  the  copy  of  the  attachment 
list  prepared  by  the  amin,  was  not,  as  waa 
seen  subsequently  absolutely  necessary  for 
proceeding  with  the  execution  tithe  de 


836 


StfcRAMANIA  AltAR  V,  K&ISB&A  Itfefl. 


in  this  ~case  and  it  was  found,  when 
requisition  for  the  same  paper  was  made 
in  E.  P.  No.  35  of  1924  also,  and  on  which 
sale  of  the  properties  was  aftei  wards  ordered 
that  the  document  called  for  had  been 
destroyed.  In  fact,  the  oider  for  sale  of  the 
properties  now  objected  to  was  passed  in 

B.  P.  No.  35  in  the  absence  of  this  document. 
In  these  circumstances  lam   satisfied  that 
the  applications  for    execution  were  really 
in  accordance  with  law  and  the  Court  could 
have  passed  orders  on  them  to  effectively 
carry  out  execution. 

In  the  view  that  the  applications  dismis- 
sed for  default  are  applications  in  accordance 
with  law,  the  next  question  for  us  to  consider 
is  whether  0.  XXI,  r.  57,  0.  P.  C.,  applies 
to  the  facts  of  this  case.  According  to  that 
rule,  when  any  property  has  been  attached 
in  execution  of  a  decree  and  the  application 
filed  for  execution  has  been  dismissed  by 
reason  of  the  decree-holder's  default,  such 
dismissal  will  have  the  effect  of  vacating 
the  attachment.  In  this  case,  as  already 
mentioned,  the  properties  had  been  attach- 
ed before  judgment.  Order  XXXVIII,  r.  11, 

C.  P.  C.,  states  that  when  a  decree  is  sub- 
sequently passed  it  shall  not  be  necessary 
upon  an  application  for  execution  of  such 
decree  to  apply    for  re-attachment  of  pro- 
perty. It  has  been  held  in  Meyyappa  Chettiar 
v.  Chidambaram  Chettiar  (1)  that  O.  XXI,  r. 
57,  C.  P.  Ct)  applies  to  cases  where  property 
had  been  attached  before    judgment  and 
that  if  an  execution  application  filed  after 
the    passing   of  the  decree  has  been  dis- 
missed on   account  of  the    decree-holder's 
default,  then  the  attachment  ceases.  Appli- 
cations for  executions  in  this  case  having 
been  dismissed  by  reason    of   the  decree- 
holder's  default,  it  follows  from  the  authority 
of  this  ruling  that  the  attachment    existing 
on  the  properties  ceased  and  these,    when 
ordered  to  be  sold,  were  not    under  attach- 
ment. This  conclusion  renders   it  necessary 
to  decide  the  third  question  raised  by  the 
parties,  namely,  whether  the  sale  ot  pro- 
perties in  execution  without  an  attachment 
is  void  ab  initio, 

In  Sharoda  Moyee  Burmonee  v.  Wooma 
Moyee  Burmonee  (i>)  it  \\as  held  by  Jackson, 
J,,  that  an  attachment  was  not  an  essential 
preliminary  in  an  execution  sale,  a  he 
reason  for  this  view  is  thus  stated  by  the 
learned  Judge,  "  Attachment  is  a  measure 
resorted  to  by  the  decree-holder^  orchis 


[92  I.  0. 1926] 


protection  and  the  protection  of  purchasers 
of  the  property  to  be  sold,  and  it  consists 
in  the  case  of  immoveable  propeity  merely 
in  a  prohibition  by  the  Court  by  which  the 
judgment-debtor  is  restrained  from  alienat- 
ing the  property  previous  to  the  sale.  This, 
therefore,  being  mejely  a  measure  for  the 
protection  of  the  decree-holder  and  the  pur- 
chasers of  the  property,  the  absence  of  it  is 
not,  it  appears  to  me,  an  objection  which 
the  judgment-debtor  is  competent  to  raise/' 
lu  Baboo  Luchmeepitt  v.  Baboo  Lekraj  Roy 
(6)  the  same  Court  held  that  a  sale  without 
attachment  was  irregular;  but,  as  pointed 
out  in  Kishory  Mohun  Roy  v.  Mahomed 
Mujafar  Hussam  (7)  "as  that  was  a  case 
of  sale  of  move  able  property,  and  the  suit- 
was  one  for  damages,  the  Court  was  not 
called  upon  to  decide  whether  the  sale 
should  be  regarded  as  a  nullity."  Though 
the  decision  in  Sharoda  Moyee  Burmonee 
v.  Wooma  Moyee  Burmonee  (5)  was  under 
the  C.  P.  C.  of  1859  which  did  not  contain  a 
pio vision  corresponding  to  O.  XXI,  r.  64,  of 
the  present  C.  P.  C.,  )  et  the  leasoning  of  the 
learned  Judge  has  been  accepted  and  applied 
in  deciding  cases  both  under  the  Act  of  18b2 
and  under  the  present  Code  by  our  High 
Court.  In  Muniappa  Naik  v.  Subramania 
Ayyan  (8)  on  the  ground  that  "the  object 
of  attachment  is  to  take  the  property  out 
of  the  disposition  of  the  judgment-debtor" 
the  learned  Judges,  Muthusami  Iyer  and 
Best,  J  J  ,  held  that  the  omission  to  attach 
under  s.  274  of  Act  XIV  of  1882  was  only 
an  irregularity..  In  Ramasami  Naik  v. 
Ramaswamy  Chetti  (9)  it  was  held  for  the 
same  reason  that  the  sale  in  execution  of  a 
decree  is  not  invalid  although  there  has 
been  no  attachment  before  sale  as  required 
by  the  Code.  These  decisions  and  the  deci- 
sions in  Kishory  Mohun  Roy  v.  Mahomed 
Mujafar  Hussam  (7)and/S/ieodfo/anv.jB/zoZa- 
nath  (10)  were  followed  by  Sankaran  Nair  and 
Hadasiva  Iyer,  JJ.,  in  VelayuthaMuppanv. 
Subramaman  Chetti  (11)  where  they  held  that 
a  sale  of  immoveable  property  in  execution 
of  a  decree  without  the  preliminary  attach- 
ment is  not  null  and  void.  This  was  a 

16;  8  W   E.  415. 

(1)  18  C.  188;  9  Ind.  Dec.  (N  s.)  126.^ 
IbJ  18  M.   437,5   M.  L.  J.  60;    6  Ind.  fc  Dec.  (N,  e.) 
654. 

(9)  SO  M.  255  at  p.  264;  2  M.  L.  T,  167,  17  M,  L.  J, 

(10)  21/AV311,[A.  W.  JN.  (1619)  M,  9  ltd.  Ttc.  (N.S. 


[92  i.  0.  ly26j 

decision  under  tin  new  Code.  The  latest 
reported  decision  of  this  Court  is  to  be 
found  in  Sivakoliindu  Pillai  v  Ganapathy 
Iyer  (12)  where  the  learned  Judges  held 
that  "attachment  is  only  a  step  to  be 
taken  by  the  Executing  Court  in  bringing 
to  sale  che  properties  of  a  judgment-debtor. 
If  such  a  step  is  omitted  the  sale  can  be 
set  aside  only  if  it  has  resulted  in  sub- 
stantial loss"  and  the  absence  of  attachment 
does  not  affect  the  jurisdiction  of  the  Exe- 
cuting Court  to  sell  the  immoveable  pro- 
perty Our  High  Court  has  thus  held  in 
a  series  of  decisions  both  under  the  old 
Code  and  the  present  one  th-it  the  absence 
of  attachment  does  not  affect  the  jurisdic- 
tion of  the  Executing  Couit  to  sell  the 
property  and  that  the  sale  on  that  account 
is  not  null  and  void  In  Sheodhyan  v 
Bholanath  (10)  the  learned  Judges  of  the 
Allahabad  High  Court  after  an  elaborate 
consideration  of  the  object  of  attachment 
have  also  arrived  at  the  same  conclusion. 

As  against  these  decisions  which,  if  accept- 
ed, would  entail  the  dismissal  of  his  appeal 
the  learned  Advocate-General  relies  upon 
a  recent  decision  of  the  Calcutta  High 
Court  in  Panchanan  Das  v.  Kunja  Behan 
(13)  to  the  effect  that  a  Court  has  no  juris- 
diction to  sell  a  property  in  execution  which 
had  not  been  duly  attached.  The  learned 
Judges  base  their  conclusion  upon  a  decision 
in  Sorabji  Coovarji  v  Kala  Raghunath  (14) 
some  observations  of  the  Piivv  Council  m 
Ra^a  Thakur  Barmha  v  Jiban  Ram  Mar- 
wari  (15)  and  upon  the  terms  of  O  XXf, 
r.  61,  C  P  0  It  is  to  be  noticed  that  the 
learned  Judges  do  not  in  their  judgment 
refer  to  the  earlier  decisions  of  their  Court 
in  Kishory  Mohun  Roy  v.  Mahamed  MUJ- 
affar  Hussain  (7)  and  Han  Charan  Singk 
v.  Chandra  Kunwar  Dey  (16)  which  held 
that  a  sale  is  not  to  be  considered  as  a 
nullity  merely  by  reason  of  the  absence  of 
any  attachment. 

The  observations  of  Scott,  C.  J  ,  in  Sorabji 
Coovarji  v.  Kala  Raghunath  (14)  that  "pio- 
perty  can  only  be  brought  to  sale  after  it  has 
been  duly  attached  and  if  the  attachment 
came  to  an  end  upon  the  payment  into 

(12)  37  Ind  Caa  96i,  (1917;  M  W  N  89 

(13)  42  Ind  Cas  259 

(14)  12  Ind    Oaa    911,     36  B    156,    13  Bom.   L.   R 
119* 

(15)  21  Ind    Cas   936,   41  C  590,    18  C     W  N    313, 
15  M  L   T  137,  12  A   L  J  156,    19  0    L  J    161,  26 
M   L  J  89,  16  Bom  L  R    156,  (1914)  M  W.  N  118, 
41 1  A  38  (P   0 ) 

(16)  34  0.  787, 11  0,  W,  N,  74$, 


SOBRA MANIA  A1YAR  V    KRISHNA  IYER. 


837 


Court  on  the  22nd  of  September  1909    the 
property  was  not  duly  attached  at  the  time 
of    the  sale    in  January  191011    no  doubt 
support  the  contentions    of  the  appellant. 
We  do  not  find  in  the  course  of  the  judg- 
ment any  discussion  of  the  case-law  bearing 
on    the    question,  nor  an     answer    to  the 
reasoning  on  which  the  view  of  the  Madras 
and  the  Allahabad  High  Courts  is   based, 
namely,  that  an  attachment  is  a  measure 
resorted  to  for  the  protection  of  the  decree- 
holder  and  the  purchaser  against  interme- 
diate alienation,  and  is  only    a  step  to  be 
taken  by  the  Executing  Court  in   bringing 
to  sale  the  properties  of  a  judgment-debtor. 
It  is  conceded  m  the  judgment  that  the 
decision  of  the  Privy  Council  is  not  exactly 
in  point,  but  the  following  remarks  of  Lord 
Moulton  are  referred  to  as  indicating  the 
view  of  their  Lordships  that  the   property 
can  only  be  sold  when   it  has    been  duly 
attached.    "Their   Lordships  are  of  opinion 
that  this  is  a  very  plain  case.  That  which  is 
sold  in  a  judicial  sale  of  this  kind    can  be 
nothing  but  the  property  attached,  and  that 
property  is  conclusively   described  in  and 
by  the  schedule  to  which  the   attachment 
refers "    The  facts  of    the  case  and   their 
Lordship's  decision  will  clearly  show  that 
these  observations  only  mean  that  a  certi- 
ficate of  sale  cannot  be  granted   in  which 
the  property  described  is  different  from  the 
property  attached  and  specified  in  the  pro- 
clamation of  sale.    In  that  lease  the   judg- 
ment debtor     owned  16  annas  share    of  a 
mahal  of  which  10  annas   share   was  mort- 
gaged while  the  remaining    6  annas  were 
free  from   any    mortgage      The  proclama- 
tion of  sale  described  the  property  to    be 
sold  as  6  annas  share  included  in  the  mort- 
gage.    This    was  the  property    that    was 
attached  and  sold  in  auction.    An  applica- 
tion was  made  on    behalf  of  the  auction- 
purchasers  to  obtain  a  sale   certificate  for 
the  6-annas   share    purchased  by  them   at 
the  auction.      In  making  the    application 
they  alleged  that  a  mistake  had  been  made 
in  the  schedule  of  the  property  to  be  sold 
in  that  the  word  "not"  had  been  omitted 
from  the  description  of  the  6  annas  in  ques- 
tion and    that   the    property  should   have 
been  described  as  being  6  annas  not  mort- 
gaged    They  claimed  that  their  certificate 
should  be  made  out  as  being  a  certificate  of 
the  purchase  by  them  of  the  6  unencumber- 
ed annas  instead  of,  as    described  in   the 
schedule,  <16  annas  subject  to  the  existing 
mortgage.1'  The  Subordinate  Judge  granted 


838 


MEENAKBHISUNDARA  NACHIAR  t>.  VBERAPPA  CHETTIAR.  [92  I.  0.  1926J 


tliem  a  certificate  in  the  form  in  which 
they  desired.  This  order  upheld  by  the 
High  Couit  was  set  aside  by  the  Privy 
Council.  After  1  he  extract  from  the  judg- 
ment already  referred  to,  their  Lordships 
Btate.  "hi  the  present  case  the  property 
was  6  annas  subject  to  an  existing  mort- 
gage. The  effect  of  the  certificate  of  sale 
granted  by  the  order  of  the  Subordinate 
Judge  is  to  make  the  sale  that  of  a  pro- 
perty not  attached,  namely,  the  6  unencum- 
bered annas,  a  property  which  could  not 
be  sold  in  such  proceedings  inasmuch  as 
it  was  not  the  property  attached."  Later 
on  their  Lordships  say  "in  this  case  we  have 
to  deal  with  identity  and  not  description." 
Their  Lordships  conclude  thus  ; — "It  was 
beyond  the  powers  of  the  Court  to  make 
such  an  order  inasmuch  as  there  \\as  no 
power  to  sell  in  these  judicial  proceedings 
the  property  thus  certified  to  have  been 
purchased/1  It  will  thus  appear  that  the 
extract  quoted  from  their  Lordships*  judg- 
ment in  Panchonan  Das  v.  Kunja  Behari 
(13)  was  only  meant  to  indicate  that  the 
Court  has  no  power  to  include  in  the  sale 
certificate  properties  not  attached  and  "sold. 
Their  Lordships  were  not  called  upon  to 
consider  directly  the  question  whether  the 
absence  of  prior  attachment  will  deprive 
a  Court  of  its  jurisdiction  to  sell  the  pro- 
perties in  execution  of-  a  decree.  Thus 
understood,  it  appears  to  me  that  the  dictum 
of  the  Privy  Council  cannot  be  relied  upon 
in  support  of  the  appellant's  argument?. 

The  terms  of  0.  XXI,  r.  64,  C.  P.  C.,  no 
doubt  show  that  the  attachment  would 
ordinarily  precede  a  sale  of  the  properties  in 
execution.  But,  for  the  reasons  mentioned, 
the  decisions  above  referred  to  have  held 
that  the  absence  of  such  attachment  would 
not  vitiate  a  sale. 

In  Macnaghten  v,  Mahabir  Pershad  Singh 
(17)  the  question  whether  the  notice  of  at- 
tachment not  having  been  properly  publish- 
ed would  affect  the  sale  or  bean  irregularity 
in  conducting  the  gale,  w$s  raised  before 
the  Privy  Council  but  was  not  gone  into, 
inasmuch  as  that  point  was  given  up  by 
the  applicant  at  the  trial  before  the  Judge. 
In  the  absence  of  a  definite  pronouncement 
by  their  Lordships  of  the  Privy  Council 
1  am  not  inclined  to  follow  the  decisions 
in  Pawchanan  Das  v.  Kunja  Behari  (13)  and 
Sorabji  Cooiarji  v.  Kala  Raghunath  (14) 

(17)  9  C.  656;  11  C.  L.  R.  494;  10  I  A.  25;  7  Ind, 
Jtir  164;  4  Sar.  P.  C.  J.  417;  4  Shome  L,  JR,  285;  4  Ind. 
Pec,  (N  s.)  1086  (P.  0,)* 


in  preference  to  the  long  course  of  decisions 
of  this  Court.  Following  these  decisions 
the  sale  in  this  case  can  be  set  aside  only 
if  the  Court  is  satisfied  that  the  appellant 
has  sustained  substantial  injury  by  reason 
of  the  irregularity  complained  of,  namely, 
the  absence  of  attachment.  It  has  not  been 
argued  before  us  that  he  has  sustained  any 
such  substantial  injury  and  he  has  also  not 
asked  us  to  adjourn  the  hearing  of  this 
case  till  the  disposal  of  the  application  filed 
by  him  in  the  lower  Court.  It,  therefore, 
follows  that  this  appeal  will  have  to  be  dis- 
missed. 

As  I  have  decided  to  dismiss  the  appeal 
on  the  meiits,  I  do  not  express  any  opinion 
as  regards  the  "appeajlability"  of  the  order 
passed  by  the  Subordinate  Judge. 

In  the  result,  the  miscellaneous  appeal  is 
dismissed  with  costs.  The  connected  civil 
revision  petition  is  also  dismissed  but 
without  costs.  No  orders  are  necessary  on 
the  stay  petition. 

v.  N.  v.      Appeal  and  petition  dismissed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  179  OF  1923. 

September  28,  1925. 

Present : — Mr.  Justice  Viswanatha  Sastri. 

MEENAKSHISUNDARA  NACHIAR— 

DEFENDANT — APPELLANT 

versus 

AL.  V.  E.  P.  VEBRAPPA  CHETTIAR- 
PLAINTI  FF—  RESPONDENT. 

Contract  Act  (IX  of  1872),  s  70- Contribution— 
Common  channel,  repair  of — Party  benefited,  liability 
of,  to  contribute. 

A  common  channel  which  irrigated  the  lands  of  the 
plaintiff  and  the  defendant  was  repaired  by  the  plaint- 
iff after  giving  notice  to  the  defendant  and  the  latter 
was  benefited  by  the  repairs;  it  was  also  found  that 
the  plaintiff  did  not  intend  to  bear  all  the  expenses  of 
the  repairs  himself  : 

Held,  that  the  plaintiff  was,  under  s.  70  of  the 
Contract  Act,  entitled  to  obtain  contribution  from  the 
defendant  in  respect  of  the  cost  of  repairs 

Appeal  agaiDst  a  decree  of  th;e  Court  of 
the  Subordinate  Judge,  Ramnad  at  Madura, 
in  A  8.  No.  100 of  1921  (A.  S.  No.  1242of  1920 
of  the  District  Couit,  Ramnad  atMadura), 
prefemd  against  that  of  tLe  Court  of  the 
Additional  District  Murjsif,  Manamadura 
in  0  8.  No.  355  of  1919(0.  8.  No.  321  of 
1919  en  the  file  of  the  Ccuitof  lie  Principal 
District  MUDS  if,  Mauajnadura), 


[92 1.  0.  1926] 

Messrs.  B.  Sitaram  Row  and  8.  R.  Muthu- 
sami  Iyer,  for  the  Appellant. 

Mr.  K.  Bhashyam  lyengar,  for  the  Re- 
spondents. 

JUDGMENT.— Second  appeal  by  de- 
fendant against  the  decree  of  the  Subordi- 
nate Judge,  Ramnad,  in  A,  S.  No.  100  of 
1921. 

The  only  question  which  has  to  be  con- 
sidered in  this  appeal  is,  whether  the  Courts 
below  ware  right  in  decreeing  the  plaintiff's 
claim  for  contribution  based  upon  s.  70  of 
the  Indian  Contract  Act.  A  common  chan- 
nel irrigated  the  lands  of  the  plaintiff  and 
the  defendant.  The  case  of  the  plaint- 
iff was  that  he  repaired  this  channel  after 
informing  the  defendant,  and  that  the  de- 
fendant was  bound  to  contribute  towards 
the  repairs  made.  Both  the  Courts  found 
that  the  repairs  were  done,  that  the  de- 
fendant was  benefited  by  the  lepair,  and 
that  the  plaintiff  did  not  intend  to  bear 
all  the  expenses  himself. 

It  was  urged  before  me  on  the  authority 
of  the  decision  in  Sundara  Aiyar  v  Anan- 
thapadbhanaba  Aiyar  (1)  that  the  plain- 
tiff could  not  succeed,  because  he  was  also 
benefited  by  the  act.  Observations  in 
Visivanadka  Vijia  Kvmara  Bangaroo  v.  Rt 
G.  Orr  (2)  were  also  relied  upon  Both  the 
Courts  have  followed  Damodara  Mudahar 
v.  Secretary  of  State  for  India  (3)  which 
was  a  similar  case.  On  (he  findings  of  the 
first  Court  and  also  on  the  findings  of  the 
lower  Appellate  Court,  it  appears  tome  to 
be  clear  that  all  the  circumstances  needed 
for  the  application  of  s  70  of  the  Contract 
Act  have  been  found  to  exist. 

I,  therefore,  dismiss  the  second  appeal 
with  costs. 

v.  >j.  v.  Appeal  dismissed. 


(1)  70  Ind,  Gas  405;  (1922)  M  W  N  608,  16  L  W 
231,  31  M  L.  T  164,  43  M  L  J  271,  A  I  R.  1923 
Mad  64 


UMRAOSINiJH  1>   BENT  PRA8HAD-MBHR  CHAW. 


(2)  45  Ind    Cas  786 

(3)  18  M 


410. 


,    4  M  L   J     205,  6    Ind   Dec    (N  3 ) 


839 

LAHORE  HIGH  COURT. 

MISCELLANEOUS  CIVIL  APPEAL  No.  720 

OP  1925. 

November  26,  1925. 
Present-— U\\  Justice  Campbell, 
UMRAO  SINGH  AND  ANOTHER— JUDO MBNT- 
DEBTORS — DEFENDANTS — APPELLATKS 

versus 

MESSRS.  BENI    PARSHAD-MEHR 
CHAND— DECREE-  HOLDERS— PLAINTIFFS — 
RESPONDENTS. 

Limitation  Act  (IX  of  1008],  s  5,  Sch  7,  Art  1M  - 
Civil  Procedure  Code  (Act  V  of  1908),  0  XXI,  r  00- 
Execution  of  deci  ee  —  Sale,  application  to  set  aside— 
Limitation,  extension  of 

The  period  piescribsd  under  Art  16fi  of  Sch.  I  to 
the  Limitation  Act  for  an  application  to  set  aside  a 
sale  held  in  execution  of  a  decree  cannot  be  enlarged 
under  the  provisions  of  s  5  of  the  Limitation.  Act 

Miscellaneous  first  appeal  from  an  order 
of  the  Subordinate  Judge,  First  Class, 
Lahore,  dated  the  22nd  Januaiy  1925. 

Lala  Amin  Chand  Mehta,  for  the  Appel- 
lants. 

Mr.  Shamair  Chand  and  Lala  Parkash 
Chand,  for  the  Respondents. 

JUDGMENT.— This  is  an  appeal  by  the 
judgment-debtor  against  an  order  disallow- 
ing his  objections  to  the  sale  in  execution 
of  immovedble  property  and  confirming  the 
sale. 

A  preliminary  point  is  raised  by  the 
respondent  that  the  objections  made  by 
the  appellant  under  0,  XXI,  r.  90,  C.  P. 
C ,  were  not  presented  within  time  and 
therefore,  there  were  no  <mch  objections  and 
the  Court  was  bound  to  confirm  the  sale 
under  0,  XXI,  r  92,  C  P.  C. 

The  period  of  limitation  for  an  appli- 
cation under  O  XXI,  r  90,  is  laid  down  in 
Art.  166,  Limitation  Act,  and  is  thirty  days 
from  the  date  of  sale  The  sale  took  place 
en  the  20th  of  December  1924  and  the  ob- 
jections were  filed  in  Court  on  the  21st  of 
January  1925,  two  days  beyond  time.  It 
has  been  laid  down  frequently  by  this  and 
other  High  Courts  that  the  period  prescri- 
bed under  Art.  166  cannot  be  enlarged 
under  the  provisions  of  s.  5  of  the  Indian 
Limitation  Act  or  otherwise.  Presumably 
it  could  be  enlarged  under  s  18  cf  the 
Limitation  Act,  but  here  neither  in  the 
objection  petition  nor  in  the  present  memo- 
randum of  appeal  is  any  allegation  of  fraud 
made  against  the  decree-holder  or  the  auc- 
tion-purchaser. 

The  preliminary  objection  must  prevail 
and  I  accordingly  dismiss  the  appeal  with 
coats, 


P40 


MOHAMMAD  APZAL  V.  MUHAMMAD  MAHMtJD. 


1 92  I.  0. 192G] 


This    decision    will    also   cover   Appeal 
No,  721  of  1925, 
z.  K.  Appeal  dismissed. 


ALLAHABAD  HIGH  COURT. 

FIKST  CIVIL  APPEAL  No.  299  OF  1922. 

December  3,  1925. 
Present; — Mr.  Justice  Walsh  and 

Mr.  Justice  Kanhaiya  Lai. 

Maulvi  MUHAMMAD  AFZAL— 

PLAINTIFF — APPELLANT 

versus 

Maulvi  MUHAMMAD  MAHMUD 
AND  OTHERS-— DEFENDANTS— RESPONDENTS. 

Muhammadan  Law— "Waqf,"  meaning  of— Grant  in 
perpetuity — "Waqf,"  use  oft  in  deed,  effect  of— Inter- 
pretation of  Mukammadan  Law — Jurists,  difference 
among — Rule  applicable. 

Waqf  in  its  primitive  sense  means  detention,  but  it 
implies  detention  of  a  thing  in  the  implied  ownership 
of  the  Almightjr  God  in  such  a  manner  that  its  profits 
may  revert  to  or  be  applied  for  the  benefit  of  man- 
kind, and  the  appropriation  is  obligatory  so  that  the 
thing  appropriated  or  set  apart  ran  iieithei  be  sold 
nor  given  nor  inherited.  The  essential  condition  is 
that  it  should  be  a  settlement  in  perpetuity  or  in 
other  words,  the  ultimate  end  must  be  one  that  can- 
not fail.  The  object  of  a  waqf  must  be  charitable,  or 
if  the  waqf  is  made  for  the  support  of  one's  descend- 
ants, it  must  include  an  ultimate  dedication  for 
religious,  pioua  or  charitable  purposes,  [p  811,  col.  1  ] 

The  mere  use  of  the  word  "waqf"  in  an  instrument 
cannot  be  separated  from  the  context  so  as  to  convert 
a  personal  grant  to  a  specified  set  of  individuals  into 
a  public  disposition,  [ibid.] 

A  deed  of  grant  provided  that  the  grantees  and 
their  grand-children,  generation  after  generation, 
should  for  ever  enjoy  the  property  except  in  so  far 
that  they  would  have  no  power  to  transfer  or 
hypothecate  the  property  or  to  grant  leases  thereof  for 
a  period  exceeding  five  years . 

Held,  that  the  deed  provided  for  a  succession  of 
life-estates  without  any  ultimate  dedication  either  to 
the  poor  or  to  any  other  charitable  object  recognised 
by  the  Muhammadan  Law  and  that,  therefore,  it  did 
not  operate  to  create  a  valid  waqf  [ibid.] 

When  Muslim  Jurists  of  authority  express  dissent- 
ing opinions  upon  some  question,  the  Courts  are  at 
liberty  to  adopt  that  view  which  in  their  opinion  is 
most  in  accordance  with  justice  in  the  particular  cir- 
cumstances of  the  case.  [p.  811,  col.  2  ] 

First  appeal  from  a  decree  of  the  Sub- 
ordinate Judge,  Muzaffarnagar  at  Meerut, 
dated  the  5th  of  May  1922. 

Messrs.  Syed  Muhammad  Husain  and 
M.  A.  Aziz,  for  the  Appellant. 

Dr.  K.  N.  Kvtju,  for  the  Respondents. 

JUDGMENT. 

Walsh t  J* — This  is  an  appeal  from  a 
judgment  of  the  Subordinate  Judge  hold- 
ing that  a  certain  deed,  dated  the  *7th  of 
March  1880,  purporting  to  be  a  deed  of  waqf, 


did  not  create  a  valid  waqf.  It  is  sufficient 
to  say  that  this  actual  deed  has  already 
been  on  other  occasions  during  the  last 
seven  years  held  to  be  invalid  as  a  wag/ by 
two  subordinate  Judges,  one  District  Judge, 
and  twice  by  two  Judge  Benches  of  this 
High  Court,  of  one  of  which  a  member  of 
this  Bench  was  also  a  member.  The  last 
time  it  came  before  this  Court  was  in  1923, 
when  it  was  held  to  be  a  gift  in  favour  of 
private  individuals  which  the  donor  in  the 
course  of  the  document  wrongly  described 
as  a  u-ae//,  by  my  Lord  the  present  Chief 
Justice  and  Mr.  Justice  Piggott.  The  judg- 
ment in  that  case  is  reported  as  Muham- 
mad Afzal  v.  Muhammad  Mahmood  (1). 
We  agree  with  the  view  there  taken,  and 
in  substance  with  the  view  taken  by  the 
Subordinate  Judge  in  this  case.  Although 
the  deed  is  in  favour  of  a  family  of  a  pious 
teacher  of  the  Muhammadan  faith  and  not 
of  the  descendants  of  the  donor,  it  seems  to 
us  that  that  distinction  makes  no  difference, 
and  that  the  deed  offends  against  the 
decision  of  the  Privy  Council  in  the  case  of 
Abul  Fata  Mahomed  Ishak  v.  Rasamaya 
DIntr  Chowhdn  (2).  But  in  any  event  the 
fact  that  this  High  Court  has  twice  pro- 
nounced against  it,  would  be  sufficient  to 
justify  us  in  not  differing  from  the  view  of 
the  Court  below.  This  appeal  must  be 
dismissed  with  costs  including  in  this 
Court  fees  on  the  higher  scale. 

Kanhaiya  Lai,  J.— I  wish  to  acid  a 
few  observations  as  to  the  main  question 
discussed  at  the  hearing  regarding  the 
construction  to  be  placed  on  the  disposi- 
tion made  by  Nawab  Muhammad  Mahmud 
Ali  Khan  of  Chhatari  in  favour  of  the  sons 
and  daughters  of  his  preceptor  and  their 
descendants  on  the  17th  of  March  1880.  It 
is  contended  that  the  disposition  was  made 
in  favour  of  persons  who  were  from  a  reli- 
gious point  of  view  the  object  of  venera- 
tion, and  that  the  object  of  the  disposition 
could  validly  be  regarded  as  a  religious  or 
charitable  object  within  the  meaning  of  the 
Muhammadan  Law  to  render  the  disposition 
a  valid  waqf  of  the  property  comprised 
therein.  One  of  the  essential  conditions 
of  a  valid  disposition  by  way  of  wagf,  how- 
ever, is  that  it  must  be  made  in  perpetuity. 
Waq-f  in  its  primitive  sense  means  deten- 
tion; but  it  implies  detention  of  a  thing  in 

(1)  74  Ind  Gas.  343;  21  A.  L.  J.  595,  A.  L  R  1924 
All  28 

(2)  22  C.  619;  22  L  A,  76,  C  Sar.  P,  C.  J,  $72,  11  Ind. 
Dec.  (N  s.)  4 12  (P.O.), 


OHIMASHANI  V,  VBNKATfcAO. 


[92  I.  0. 1926J 

the  implied  ownership  of  the  Almighty  God 
in  such    a    manner  that    its  profits  may 
revert  to  or    be  applied  for  the  benefit  of 
mankind,  and  the  appropriation  is  obliga- 
tory so  that  the  thing  appropriated  or  set 
apart  can  neither  be  sold  nor  given  nor  in- 
herited (Baillie's  Muhammadan  Law,  Vol  1, 
page  558).    The]essential  condition  is  that  it 
should  be  a  settlement  in  perpetuity  or  in 
other  words,  the  ultimate  end    must  be  one 
that  cannot  fail  (ibid  pages  565  and  566).  The 
object  of  a  waqf  must  be    charitable;  or  if 
the  waqf  is  made  for  the  support  of  one's 
descendants,  it  must    include    an  ultimate 
dedication  for  religious,  pious  or  charitable 
purposes;   and    in    that  respect  it  differs 
from  a  gift  to  particular  individuals  or  their 
descendants.      In   the    case  of  a    waqf  in 
favour  of   descendants,  if  the  descendants 
fail,  the  disposition  is  liable  to  terminate, 
and  the  essential  condition,  namely,  perpe- 
tuity, also  fails     The  instrument  by  which 
the  disposition  in  this  case    was  made  pro- 
vides that  the    grantees  and  their  grand- 
children, generation  after  generation,  shall 
for  ever  enjoy  the    property    without  any 
limitation,  except  in  so  fai  that  they  shall 
have  no  power  to    transfer   and  hypothe- 
cate the  property  or  to  grant  leases  thereof 
for  a  period  exceeding  five  years.    In  other 
words  it  lays  down    that  the  grantees  and 
their  heirs  shall  enjoy  the  benefits  accruing 
from  the  property  for  the  support  and  main- 
tenance of  themselves  and  their  descend- 
ants and  shall  not  be  deprived  of  any  part 
thereof  in  any  way.    It  makes  no  provision 
as  to  what  is  to  happen    to  the  property  if 
the  descent  at  any  time    fails     It  provides 
in    other  words  for  a  succession    of  life- 
estates   without  any  ultimate     dedication 
either  to  the  poor  or  to  any  other  charitable 
object  recognised  by  the  Muhammadan  Law. 
The  learned  Counsel  for  the  plaintiff  ap- 
pellant argues  that  the  mere  use  of  the 
word  "waqf"  in  the  deed  suggests  perpe- 
tuity, and  that  the  law    would  presume  in 
such  a   case  that  if  the  descent  fails,  the 
poor  shall    be  the  ultimate  object  of  the 
disposition.    But    on  this    point  there  is 
a  wide  difference    of  opinion  between  the 
different  Jurists.    Abu  Hanifa  and  Muham- 
mad declare  that  the  waqf  must  expressly 
purport  to  be  in  perpetuity,  and* that  if  the 
object  of  the  waqf  fails,  or  is  such  that  it 
may  at  any  time  fail,  the  waqf  must  *be 
regarded  as  void.    Abu  Yusuf  has  however 
laid  down  that  perpetuity  will  be  presumed, 
if  not  stated,  and  that  if  the  object  of  the 


841 


waqf  fails,  it  will  result  in  favour  of  the 
poor.  The  views  of  the  different  Jurists 
have  been  summed  np  by  the  author  of  the 
Hedaya  (Hamilton's  Hedaya,  Vol,  II,  page 
341),  and  though  it  is  said,  the  views  of 
Abu  Yusuf  have  found  favour  in  Balkh  and 
certain  other  countries  (Baillie's  Muham- 
madan Law,  Vol  I,  page  567),  it  could  be 
said  that  the  use  of  the  word  waqf  can  be 
separated  from  the  context  so  as  to  con- 
vert a  personal  grant  to  a  specified  set  of 
individuals  into  a  public  disposition.  As 
a  general  rule  when  Muslim  Jurists  of 
authority  express  dissenting  opinions  upon 
some  question,  the  Islamic  Courts  presided 
over  by  the  Qazi  are  vested  with  authority 
to  adopt  that  view  which  in  the  opinion  of 
the  Presiding  Officer  is  most  in  accordance 
with  justice  in  the  particular  circumstances 
In  the  case  of  Muhammad  Mumtaz  Ahmad 
v.  Kubaida  Jan  (3)  that  principle  was 
accepted  and  applied,  and  considering 
that  the  disposition  here  in  question  was 
really  intended  to  benefit  certain  specified 
individuals  and  their  descendants  without 
any  reference  to  the  ultimate  fate  of  the 
property  in  case  the  descent  failed  it  is 
reasonable  to  presume  that  it  was  intended 
thereby  to  grant  successive  life-estates 
rather  than  to  create  a  permanent  disposi- 
tion of  the  property  in  the  sense  contended 
for  on  behalf  of  the  plaintiff  It  is  not 
possible  in  these  circumstances  to  depait 
from  the  view  which  has  been  taken  in 
previous  cases  in  which  this  document 
came  up  for  consideration  I  agree,  there- 
fore, in  the  order  proposed 
/  K.  Appeal  dismissed, 

(3)  16  T  A    205  at  p    215,  11  A   160,   5  Har    P  C.  J 
43,'i,  6  Ind  DNS  (\T  s )  721  (P  C  > 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT, 

MISCELLANEOUS  CIVIL  APPEAL  No.  39  OF  19^4. 

June  22,  1925 

Present: — Mr  Findlay,  Officiating  J.  0. 
OHIMASHANI — PLAINTIFF— APPELLANT 

versus 
VENKATRAO—DBFENDANr — RESPONDENT, 

Part  performancet  doctrine  of,  applicability  of — 
Specific  performance,  agreement  not  capable  oft  effect 
of. 

The  doctrine  of  part  performance  has  no  applicabil- 
ity in  the  case  of  an  agreement,  specific  performance 
of  which  cannot  be  had  under  law.  [p.  843,  col.  1,] 


842 


CHIMASHANI  V.  VBNKATARAO. 


Appeal  against  a" decree  and  judgment 
of  the  District  Judge,  Nagpur,  dated  the 
2nd  July  1924,  in  Civil  Appeal  No.  72  of 
1924. 

FACTS.— This  was  a  suit  to  recover 
possession  of  occupancy  field  No.  75,  area 
V99  acres,  situated  in  Mouza  Bahndewadi, 
Tahsil  Ramtek.  In  1318  FasU  the  plaintiff 
leased  out  the  village  to  Martand  Bapuji 
Waikar  for  19  years  and  in  1332,  Martand 
Bapuji  assigned  his  lease-hold  rights  for 
the  unexpired  term  in  favour  of  the  defend- 
ant. Plaintiff  alleged  that  she  was  the 
keep  of  Balkrishna  Raghav  and  that  the 
latter  had  given  her  the  field  in  dispute 
along  with  certain  other  fields  in  tenancy; 
that  in  1331,  she  had  leased  out  the  field 
in  suit  to  one  Pandu  Gone  for  one  year; 
that  when  on  the  expiry  of  Pandu's  term 
of  lease,  she  went  to  take  possession  of 
the  field  in  dispute,  defendant  obstruct- 
ed her  and  did  not  allow  her  to  take  pos- 
session of  the  said  field. 

Defendant  admitted  that  plaintiff  was 
the  tenant  of  the  field  in  suit  prior  to  1916, 
but  he  pleaded  that  in  1916  in  satisfaction 
of  the  debt  of  Rs.  300  which  she  owed  to 
Martand  Bapuji  Waikar,  the  then  thekedar 
of  the  village,  she  surrendered  the  said 
field  along  with  other  fields  to  Martand 
Bapuji  and  delivered  possession  of  the  same 
to  him;  that  when  Martand  Bapuji  assigned 
his  lease-hold  rights  to  the  defendant,  he 
transferred  possession  of  the  field  ill  suit 
along  with  other  fields  which  he  acquired 
by  surrender  from  the  plaintiff  to  the  de- 
fendant and  that  the  defendant  was  in  pos- 
session of  all  those  fields  including  the 
field  in  suit  by  virtue  of  the  said  transfer; 
that  plaintiff  had  ceased  to  be  a  tenant  of 
the  field  in  suit  ;  that  her  right  to  recover 
the  same  was  barred  by  limitation  and 
that  her  suit  was  liable  to  be  dismissed. 

Plaintiff,  in  reply,  admitted  execution 
of  the  deed  of  surrender  in  favour  of  Mar- 
tand Bapuji,  but  pleaded  that  it  was  no- 
minal and  never  acted  upon.  She  denied 
having  given  possession  of  the  fields  cover- 
ed by  the  deed  of  surrender  to  Martand 
Bapuji  and  alleged  that  she  was  all  along 
in  possession  of  the  said  fields.  She  plead- 
ed that  she  had  been  dispossessed  by  the 
defendant  within  two  years  prior  to  the 
date  of  suit  and  that  her  claim  was  conse- 
quently within  time. 

The  Court  below  without  going  into 
the  question  as  to  whether  the  surrender 
in  question  was  pomin^l  or  'genuine  and 


[92  I,  0.  1926] 

whether  in  pursuance  of  this  surrender 
possession  of  the  fields  covered  by  it  was 
transferred  to  Martand  Bapuji  held  that 
the  deed  of  surrender  was  inadmissible  for 
want  of  registration  and  that  consequently 
the  alleged  surrender  could  not  be  proved, 
It  further  held  that  plaintiff  had  been  dis- 
possessed within  two  years  prior  to  suit  and 
that  consequently  her  claim  was  within 
time.  On  the  strength  of  these  findings,  it 
decreed  the  claim  of  the  plaintiff  against 
the  defendant  who  has  now  preferred  this 
appeal. 

Mr.  M.  tt.  Bobde,  for  the  Appellant. 

Mr.  W.  H.  Dhabe,  for  the  Respondent. 

JUDGMENT.—  The  facts  of  this  case 
are  sufficiently  clear  from  the  judgments 
of  the  two  lower  Courts.  The  plaintiff- 
appellant  has  come  up  on  appeal  to  thig 
Court  against  the  judgment  of  the  lower 
Appellate  Court,  dated  the  2nd  of  July 
1924,  remanding  the  case  for  a  fresh  trial 
to  the  first  Court,  This  remand  was 
largely  made  on  the  strength  of  the  deci- 
sion of  their  Lordships  of  the  Privy  Council 
in  Mahomed  Musa  v.  Aghore  Kumar  (1) 
and  it  is  urged  on  behalf  of  the  appellant 
that  the  learned  District  Judge  failed  to 
appreciate  the  restrictions  which  existed 
on  the  rule  of  "  part  performance  "  of  a 
contract.  It  has,  in  the  first  place,  been 
advanced  on  behalf  of  the  appellant  that 
here  we  arc  concerned  with  occupancy  land 
which  is  only  transferable  under  exceptional 
conditions  and  that  the  doctrine  of  "  part 
performance  "  is,  therefore,  not  applicable. 

1  know  of  no  authority  for  this  proposi- 
tion as  ifc  stands.  I  have,  however,  been 
referred  to  the  decisions  in  Jogendra 
Krishna  Hoy  v.  Kurpal  Harshi  &  Co.  (2)  and 
in  San  jib  Chandra  Sanyalv.  Santosh  Kumar 
Lahiri  (3).  It  is  suggested  that  the  lower 
Appellate  Court  has  overlooked  the  circum- 
stance that  in  the  former  quoted  case 
Mookerjee,  J.,  remarked  as  follows  in  this 
connection  :— 

41  It  is  now  well-established  by  a  long 
series  of  decisions  in  this  Court  from  Bibi 
Jawahir  Kumari  v.  Chatterput  Singh  (4) 
byam  Kishore  Deo  v.  Umesh  Chandra  Bhata- 


930; 


-  J-  548*>  19 


L.R.420; 

.  2^  is  A 


°* 


(4)  ?  0.  L,  J.  343- 


[92  L  0.  H26]  ASWAP  ALT  BEPARI 

charjee  (5)  and  Haripada  Ghose  v,  Nirod 
Krishna  Ghose  (6)  that  when  in  pursuaace 
of  an  agreement  to  transfer  property,  the 
intended  transferee  has  taken  possession, 
though  the  requisite  legal  documents  have 
not  been  executed  and  registered,  the  posi- 
tion is  the  same  as  if  the  documents  had 
been  executed,  provided  that  specific  per- 
formance can  be  obtained  between  the 
parties  to  the  agreement  in  the  same  Court 
and  at  the  same  time  as  the  subsequent 
legal  question  falls  to  be  determined.  We, 
must  then  take  it  there  was  in  law  as  in 
fact  a  tenancy  for  a  term  of  three  years 
and  that  the  defendant  Company  were  not 
entitled  to  terminate  it  by  the  notice  of 
surrender  dated  the  27th  February  1918  " 

Here,  however,  the  position  is  somewhat 
different.  The  agreement  in  question  was 
admittedly  executed  but,  not  having  been 
registered,  was  inadmissible  in  evidence  as 
such.  The  latter  case  quoted  is  of  less  help, 
for  therein  the  plaintiff  was  suing  for  spe- 
cific performance  and  that  suit  had  neces- 
sarily to  be  dismissed.  The  principle  laid 
down  in  Jogendra  Krishna  Roy  v,  Kurpal 
Harshi  &  Co  (2)  however,  seems  to  be  un- 
doubtedly applicable  to  the  present  case 
and,  in  the  peculiar  circumstances  thereof, 
I  am  of  opinion  that  the  doctrine  of  upart 
performance  "  cannot  apply  and  there  could 
obviously  have  been  no  question  of  any 
possibility  of  a  decree  for  specific  perform- 
ance being  passed  in  the  circumstances  of 
the  present  case,  and  this  being  so  the  well- 
known  restriction  on  the  rule  of  "  part  per- 
formance  "  would  appear  to  apply  here. 
This  being  so,  the  remand  of  the  case  was, 
in  my  opinion,  improper 

I  may  further  point  out  that  in  paras, 
12—  14  of  the  first  Court's  judgment  theie 
were  also  definite  findings  as  to  the  plaint- 
iffs possession  after  the  surrender  and  as 
to  the  defendant  only  having  dispossessed 
her  in  March  1922,  which  do  not  seem  to 
have  been  specifically  considered  by  t\  o 
lea  ned  District  Judge  and  which,  so  far 
as  this  suit  was  concerned,  made  the  appli- 
cation of  the  doctrine  of  "part  performance1* 
quite  impossible. 

The  judgment  and  decree  of  the  lower 
Appellate  Court  are,  therefore,  reversed 
and  those  of  the  first  Court  are  restored. 
The  respondent-  defendant  will  bear  the 


46k 


55  Ind.    Gas  154;  31  0,   L,  J,  75;  24  C,   W.  N. 


(6)  61  frd,  Ofts.  687;  33  0,  L,  J,  437, 


V.  PtJLA  MIA.  843 

plaintiff-appellant's  costs  in  all  three  Courts 
in  addition  to  his  own. 

G.  R.  D.  Decree  reversed 

Z.   K. 


CALCUTTA  HIGH  COURT. 

LETTERS  PATENT  APPEAL  No,  18  OF  1924. 

July  21, 1925 
Present  : — Justice  Sir  Ewart  Greaves,  KT  , 

and  Mr  Justice  Ouming. 

ASWAP  ALIBEPARI-PLAINTJFF— 

APPELLANT 

versus 
DULA  MIA— DEFENDANT— RESPONDENT. 

Benqal  Tenancy  Act  (VLll  of  138r))>  s  ISS—Eject- 
ment- -Culturable  lands  forming  patt  of  homestead  of 
raiyat—  Liability  to  ejectment 

Where  eulturable  lands  form  pait  of  and  are  ap- 
purtenant to  the  homestead  lands  of  a  raiyat  he  is 
protected  from  eviction  therefrom  under  the  provi- 
sions of  s  182  of  the  Bengal  1  enancy  Act  [p  844,  cols 
1&2] 

Letters  Patent  Appeal  against  the  judg- 
ment of  Mr  Justice  Mukerji,  dated  the  24th 
of  March  1924,  in  Appeal  from  Appellate 
Decree  No  105  of  1922. 

Babu  Jitendra  Kumar  Sen  Gupta,  for  the 
Appellant. 

Babu  D.  L.  Kastgir,  for  the    Respondent. 

JUDGMENT. 

Greaves,  J.— When  this  appeal  was 
before  us  previously  we  sent  back  the  matter 
to  the  lower  Appellate  Court  for  certain 
findings  to  be  recorded. 

Firstly,  whether  the  defendant  was  or 
was  not  a  permanent  raiyat  with  rights  of 
transfer  in  the  land.  Secondly,  whether  the 
defendant  was  or  was  not  a  settled  raiyat 
of  the  village  in  respect  of  other  lands  and 
whether  in  addition  to  the  homestead  there 
was  any  other  land  other  than  a  strip  of 
garden  land.  Thirdly,  as  to  whether  or  not 
any  improvements  had  been  effected  by  the 
defendant  on  the  land  and  whether  such 
improvements  had  been  effected  with  the 
landlord^  assent  and  the  value  thereof. 

The  learned  Munsif  to  whom  the  case  was 
remitted  has  now  returned  it  with  the  fol- 
lowing findings.  He  holds  that  the  plaint- 
iff is  an  occupancy"  raiyat  without  the 
right  of  transfer  and  permanency  in  his 
holding.  Secondly,  that  the  defendant  is  a 
settled  raiyat  of  the  village  in  respect  of 
lands  other  than  the  land  in  question  and 
that  he  had  acquired  rights  of  occupancy 
therein.  He  further  finds  that  the 


814 


KOMMINBNI  APPALASWAMY  V.  KOMMINBNI  81MHADRI  APPADU.  [92  I.  0. 


ant's  tenancy  which  is  in  dispute  includes 
other  culturable  (nal)  lands  besides  the 
homestead  and  a  strip  of  garden.  He  finds 
that  the  area  of  the  culturable  land  is  not 
less  than  2  kanis  and  that  the  whole  of  the 
land  of  the  defendant's  tenancy  lies  about 
his  homestead  and  is  appurtenant  thereto. 
He  also  finds  that  no  improvements  have 
been  effected  by  the  defendant  with  the  as- 
sent of  the  landlord,  express  or  implied,  and 
he  assessed  the  value  of  the  improvements 
carried  out  by  the  defendant  at  Rs,  300. 

Now,  both  sides  have  argued  before  us 
that  they  are  entitled  to  succeed  on  the 
findings  of  the  Munsif.  The  real  point 
which  arises  on  these  findings  is  whether  or 
not  the  defendant  is  protected  by  the 
provisions  of  s.  182  of  the  Bengal 
Tenancy  Act  which  provides  that  "when 
a  raiyat  holds  his  homestead  otherwise 
than  as  part  of  his  holding  as  a  raiyat, 
the  incidents  of  his  tenancy  of  the  home- 
stead shall  be  regulated  by  local  custom  or 
usage,  and,  subject  to  local  custom  or  usage, 
by  the  provisions  of  this  Act  applicable  to 
land  held  by  a  raiyat."  The  plaintiff  con  tends 
that  the  defendant  is  not  protected  by  the 
provisions  of  s.  182  and  that  he  is  an  under- 
raiyat  and  that  as  proper  notice  has  been 
given  under  the  provisions  of  s.  49  of  the 
Bengal  Tenancy  Act  the  defendant  is  liable 
to  be  ejected  from  his  homestead  and  so 
far  as  the  findings  are  concerned,  the  plaint- 
iff contends  that  the  finding  being  that  there 
are  in  addition  to  the  actual  homestead  cul- 
turable lands  section  182  has  no  application 
and  affords  no  protection  to  the  defendant. 
The  defendant,  on  the  other  hand,  contends 
that  on  the  finding  of  the  Munsif  the  lands 
must  be  taken  really  to  form  part  of  his 
homestead  and  to  be  appurtenant  thereto 
and,  consequently,  he  contends  that  he  is  not 
liable  to  be  evicted  by  the  notice  which  the 
plaintff  has  given  him 

I  think  that  the  contention  of  the  de- 
fendant is  correct  and  that  he  is  not  liable 
to  be  evicted  from  the  land.  It  seems  to 
me  that  or,  the  findings  of  the  learned 
Munsif  the  lands  extending  2  kanis  which 
he  describes  ai  culturable  lands  are  really 
part  of  the  homestead  itself.  As  I  have 
already  stated,  the  Munsif  says  that  these 
lands  lie  about  the  homestead  and  are 
appurtenant  thereto  and  I  think,  therefore, 
that  on  this  finding  we  should  hold  that 
these  lands  are  included  in  the  homestead 
and  are  part  thereof  and  that,  consequently 
the  defendant  is  protected  from  eviction  by 


the  provisions  of  s.  18?  of  the  Bengal  Ten- 
ancy Act. 

In  the  result,  the  appeal  fails  and  we 
have  arrived  at  the  same  conclusion  as  •  the 
learned  Judge  who  tried  the  case  arrived 
but  upon  different  grounds. 

la  the  result,  the  appeal  is  dismissed 
and  the  defendant  will  be  entitled  to  hia 
costs  in  all  Courts  including  the  costs  of 
the  remand  to  the  Munsif. 

Cumlngs  J. — I  agree. 

M.  R.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  No.  349  OF  1922. 

August  27,  1925. 

Present : — 8ir  Victor  Murray  Coutts- 

Tortter,  KT  ,  Chief  Justice,  and 

Mr.  J  ustice  Viswanatha  Sastri. 

KOMMINENI  APPALASWAMY  AND 

ANOTHER— PLAINTIFFS — APPELLANTS 

versus 
KOMMINBNI  SIMHADRI  APPADU 

AND  OTHERS — DEFENDANTS   NoS.  1  TO  8 — 

KESPONDBNTS. 

Practice — Evidence  --One  party  calling  opposite,  party 
as  witness— Procedure,  whether  regular 

It  is  an  objectionable  practice  for  one  party  to  call 
the  opposite  party  as  his  own  witness  There  is  no 
objection  whatever  to  an  Advocate  seeking  to  prove 
his  case  out  of  the  mouth  of  the  opposite  party,  but 
if  he  puts  the  opposite  party  into  the  witness-box,  he 
takes  the  risk  of  making  statements  made  by  that 
witness  part  of  his  own  evidence  [p  845,  col  1  J 

Although  in  a  proper  case  the  Court  may  be  satisfi- 
ed from  the  witness's  demeanour  that  he  is  hostile 
and  may  in  such  circumstances  even  allow  the  Ad 
vacate  to  cross-examine,  it  is  irregular  for  a  Court 
to  allow  one  party  to  call  the  other  as  his  witness  on 
the  ground  that  it  is  desirable  to  elicit  some  facts 
from  the  said  witness  before  the  Court  hears  any  otKer 
evidence  in  the  suit  [t6id.] 

Appeal  against  a  decree  of  the  (Jourt  of 
the  Subordinate  Judge,  Vizagapatam,  in 
O.  S.  No.  46  of  1918. 

Mr.  P.  Somasundaram,  for  the  Appellants. 

Mr,  V.  Gouindarajachari,forthe  Respond- 
ents. 

JUDGMENT. 

Coutts  Trotter,  C«  J.— This  is  a 
hopeless  appeal  and  I  do  not  desire  to  waste 
my  words  on  it  except  op  one  matter.  The 
onus  was  rightly  found  by  the  learned  Sub- 
ordinate Judge  to  be  on  the  defendants, 
Accordingly  they  opened  the  proceedings 
and  called  evidence  first.  The  defendants 
adopted  the" Objectionable  practice  of  call- 


[92  t.  0.  1926]  SASI  BHUSAN  MALLICK  V.  SADANANDA  MALLIOK. 

ing  the  first  plaintiff  as  their  witness,  ob- 
jectionable for  this  reason,  that  they  were 
obviously  bound  to  follow  it  up,  and    it 
appears  clearly  from    the    judgment  that 
they  did  follow  it  up,  by  a  iking  the  Judge 
to  disbelieve  and  set  aside    .1  the  evidence 
given  by  the  first  plaintiff.    This  practice 
has    frequently   been  unfavourably    com- 
mented upon  by  this  Court  and  indeed  also 
by  the  Privy  Council     There  is  no  objection 
whatever  to  an  Advocate  seeking  to  prove 
his  case  out  of  the  mouth  of  the    opposite 
party ;   but  if  he  puts  the  opposite  party 
into  the  box,  he  takes  the  risk  of  making 
statements  made  by  that  witness  part  of 
his  own  evidence.    It  is  possible  that  in  a 
proper  case  the  Court  would  be  satisfied 
from  the  witness's  demeanour  that  he  was 
hostile  and  might  in  such  circumstances 
even  allow  the  Advocate  to  cross-examine 
him  ;  but  that  very  rarely  happens.    This 
course  was  adopted  in  this  case,  apparently 
because  the  Vakil  said  that   he  wanted  to 
elicit  sofrie  facts  from  this  witness  before 
he  heard  any  other  evidence  ii    the  suit. 
He  was  evidently  suspicious  that  the  wit- 
ness might  improve     upon  facts  in    the 
light  of  any  other  evidence  that  might  be 
adduced    if  he    was     not  examined  first. 
There  is  no  warrant  for  any  such  procedure 
whatever  and  I  regret  that  the  Subordinate 
Judge  permitted  it  to  be  done.    But,  in  my 
opinion,  in  this  particular  case  it  cannot  be 
allowed  to  affect    the  result,   because  the 
answers  the  witness  did   give  weie  suffi- 
cient in  the  opinion  of  the  learned  Judge 
and  sufficient  in  my  opinion  to  show  that 
the  whole  of  this  story  about  an  undivided 
family  property   is  a  concoction  from  start 
to  finish.    That  is  all  I  desire  to  say  about 
this  appeal  which  will  be  dismissed    with 
costs. 

Viswanatha  Sastri,  J.— I  agree. 

v.  N.  v.  Appeal  dismissed. 


845 


CALCUTTA  HIGH  COURT. 

APPEAL  FKOM  APPELLATE  DECREE  No.  121 

OF  1923. 

July  22,  1925. 

Present:— Mr.  Justice  Cumin g  and 

Mr.  Justice  ChakravartL 
8A8I  BHUSAN  MALLICK  AND  OTHERS- 
PLAINTIFFS— APPELLANTS 

versus 
SADANANDA  MALLICK  AND  ANOTHER 

—DEFENDANTS— RESPONDENTS. 
Res  judicata — Ex  parte  order  without  jurisdiction. 


Any  ex  parte  order  in  a  proceeding  between  tho 
paities  made  without  jurisdiction  does  not  opeiate  as 
res  judicata  in  a  subsequent  suit  between  the  parties 
[p  846,  col  2  ] 

Appeal  against  a  decree  of  the  Subordi- 
nate Judge,  Burdwan,  dated  the  9th  of  Sep- 
tember 1922,  leveising  that  of  the  Munsif, 
Second  Couit  at  Katwa,  dated  the  21st  of 
February  1922. 

tiirProvas  Chandra  Mitra,KT  ,  Mr.  Hemen- 
dra  Nath  Ken,  Babus  Gopendra  Nath  Das 
and  Kali  Kinkar  Chakravarti,  for  the  Ap- 
pellants. 

Dr.  Sarat  Chandra  Basack,  Mr.  Amarend- 
ra  Nath  Bose,  Babu  Pramatha  Nath  Ban- 
dhopadya,  for  the  Respondents. 

JUDGMENT. 

Cuming,  J«— In  the  suit  out  of  which 
this  appeal  has  arisen  the  plaintiffs  sued 
for  recovery  of  possession  of  on  declaration 
of  their  title  to  certain  bantu  land.  Their 
allegation  was  that  the  disputed  homestead 
belonged  to  one  Mati  Lai  Mallick  who  died 
some  years  ago  leaving  Monmohini  as  his 
widow  and  heir.  Monmohini  died  in  1912, 
and  then,  according  to  the  plaintiffs,  the 
plaintiffs'  father  Muchiram  who  was  the 
nearest  reversionary  heir  of  Motilal  suc- 
ceeded to  the  property  in  suit.  The  de- 
fendants, however,  kept  the  plaintiffs  out 
of  possession  and  hence  the  suit. 

The  defence  was  that  the  disputed  home- 
stead did  not  belong  to  Mati  Lai  and 
secondly  that  Muchiram  was  not  the  nearest 
reversionary  heir  of  Matilal,  because  Jadab 
Charan,  the  ancestor  of  Muchiram,  having 
been  adopted  by  one  Baisnab  Charan,  the 
plaintiffs'  father  Muchiram  was  not  the 
neaiest  reversioner  but  the  defendants1 
father  was. 

The  suit  was  tried  in  both  the  Courts  oil 
the  issue  whether  Jadab  Charan  was  or 
was  not  adopted  by  Baisnab  Charan,  ap- 
parently both  the  parties  agreeing  that  if 
Jadab  Charan  had  been  adopted  by  Baisnab 
Charan  then  the  plaintiffs1  father  was  not 
the  nearest  leversioner. 

The  first  Court.decreed  the  plaintiffs'  suit 
with  costs  On  appeal  the  learned  Subor- 
dinate Judge  held  that  Jadab  had  been 
adopted  by  Baisnab  Charan  and  for  that 
reason  Muchiram  was  not  the  nearest  rever- 
sioner. 

The  plaintiffs  had  contended  that  the 
question  as  to  whether  Baisnab  Charan  had 
or  had  not  adopted  Jadab  Charan  was 
barred  by  the  principle  or  res  judicata. 


848 


SWAMINATHA  ODAYAR  V.  THIAGABAJA8WAMI  ODAYAB,  [92  I.  0,  1926] 


This  point  the  learned  Subordinate  Judge 
held  against  the  plaintiffs.  He  found  that 
Baisnab  Charan  had  adopted  Jadab  and  he 
dismissed  the  plaintiffs*  suit. 

The  plaintiffs  have  appealed  to  this  Court 
and  they  contend  that  the  question  whe- 
ther Jadab  was  sor  was  not  adopted  by 
Baisnab  Charan  is  barred  by  the  principle 
of  res  judicata.  To  establish  their  case  of 
res  judicata  they  rely  on  the  following  facts: 
Monmohini  brought  a  suit  on  a  mortgage 
and  obtained  a  decree  and  in  execution  of 
this  mortgage  decree  she  purchased  some 
of  the  lands  covered  by  the  mortgage  and 
applied  for  possession.  Pending  the  de- 
livery of  possession  she  died  and  the  present 
plaintiffs  then  applied  to  the  Court  of  the 
Munsif  for  possession  on  the  ground  that 
they  were  the  nearest  reversioners.  Against 
this  application  the  present  defendants,  Pro- 
matha  Nath  Mullick,  Sadananda  Mullick 
and  Mahananda  Mullick  preferred  objection 
on  the  ground  that  they  were  the  nearest 
reversioners  as  Jadab  had  been  adopted 
by  Baisnab.  Pending  the  hearing  of  this 
objection  the  Court  apparently  put  the 
plaintiffs  in  possession.  The  Court  then 
proceeded  to  hear  the  objection  and  after 
hearing  the  evidence  allowed  the  objection 
and  set  aside  the  order  giving  possession  to 
the  plaintiffs  and  directed  the  objectors  to 
be  put  in  possession,  under  what  provisions 
of  the  Code  the  learned  Munsif  proceeded  it 
is  perhaps  difficult  to  see.  He  was  cer- 
tainly not  proceeding  under  the  provisions 
of  s.  47,  C.  P.  C.,  because  this  was  not  a 
matter  relating  to  the  execution,  discharge 
or  satisfaction  of  the  decree  and  the  learn- 
ed Advocate  has  not  been  able  to  point  out 
to  us*  any  other  section  of  the  Code  under 
which  the  learned  Munsif  was  acting.  On 
the  face  of  it  the  learned  Munsif  s  proceed- 
ing would  seem  to  be  entirely  without 
jurisdiction.  Be  that  as  it  may  the  Munsif 
after  hearing  the  parties  revised  his  own 
order  and  determined  that  the  objectors 
had  the  better  title  and  ordered  them  to  be 
put  in  possession.  Against  this  order  the 
plaintiffs  preferred  an  appeal  to  the  District 
Judge  who  held  that  the  Munsif  was  wrong 
in  his  order  as  he  had  nO  power  to  revise 
his  own  order  in  the  circumstances  and 
then  holding  on  the  facts  that  the  plaintiffs 
had  better  title  he  set  aside  the  order  of 
the  Munsif  revising  his  own  order.  The 
learned  District  Judge's  order  was  affirmed 
on  appeal  by  this  High  Court.  Now  it  is  quite 
clear  that  this  order  of  the  Munsif  cannot 


operate  as  res  judicata.  In  the  first  place 
the  learned  Munsif  had  no  jurisdiction 
whatever  to  pass  any  order  in  the  matter  at 
all.  It  was  not  a  matter  coming  under 
s.  47  as  I  have  pointed  out.  Neither  did  it 
come  under  any  other  section  of  the  Code. 
Secondly  the  learned  District  Judge  held 
that  the  learned  Munsif  had  no  power  to 
revise  his  own  order  and,  therefore,  the 
order  that  he  passed  revising  his  own  order 
in  which  he  dealt  with  the  title  of  the  two 
parties  was  ultra  vires.  What,  therefore, 
was  restored  was  the  original  order  of  the 
Munsif  putting  the  plaintiffs  into  posses- 
sion. But  this  order  was  apparently  passed 
ex.  parte  without  hearing  the  opposite 
party.  It  cannot,  therefore,  be  said  that 
the  question  as  to  whether  Jadab  was  or 
was  not  adopted  by  Baisnab  Charan  was 
decided  in  the  proceedings  of  the  Munsif 
putting  the  plaintiffs  into  possession.  The 
learned  Judge,  therefore,  is  quite  right  in 
holding  that  this  order  of  the  Munsif  did 
not  operate  as  res  judicata  between  the 
parties  with  respect  to  the  question  whether 
Jadab  Charan  had  or  had  not  been  adopted 
by  Baisnab  Charan. 

The  result  ig  that  the  appeal  fails  and  is 
dismissed  with  costs. 

Chakravarti,  J*— 1  agree.  I  wish 
only  to  add  that  the  finding  now  relied 
upon  by  Sir  Pravas  Chandra  Mitter  as  res 
judicata  between  the  parties  was  made  by 
the  District  Judge  in  a  proceeding  which 
he  himself  held  to  be  without  jurisdiction. 
If  that  is  so  any  order  in  a  proceeding 
which  was  without  jurisdiction  would  be  of 
no  effect. 

M.  B.  Appeal  dismissed. 


MADRAS  HIGH  COURT* 

LETTERS  PATENT  APPEAL  No.  114  op  1924* 

October  6,  1925. 
Present: — Mr.  Justice  Devadoss  and 

Mr.  Justice  Waller. 

8WAMINATHA  ODAYAR— PETITIONER 
SND  ASSIGNEE — DBCRRE-HOLDEW — 
APPELLANT 

versus 

THIAGARAJA8WAMI  ODAYAR 
—DEFENDANT  No.  I—  RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908),  8. I8t  0.  JX, 
r.  IS— Mortgage-decree  both  against  person  and  pro- 
perty  of  mortgagor—Execution  of  decree  against 
person— Limitation-* Execution  of  decree — Ex  parte 
order— Application  to  set  aside  orders-Limitation. 


1.  0.  1926] 


NARAYANASWAMI 


V.  THIPPAYVA 


847 


A  Court  is  not  justified  in  setting  aside  an  ex  paite 
order  passed  in  an  execution  proceeding  on  an  appli- 
cation made  more  than  30  days  after  the  judgment- 
debtor  became  aware  of  such  order  against  him" 

Wheie  a  combined  mortgage-decree  gives  relief 
against  the  property  as  well  as  the  person  of  the 
mortgagor,  the  time  for  execution  against  the  person 
should  oe  calculated  from  the  date  of  the  decree  and 
not  from  the  date  of  the  mortgagee  failing  to  get  relief 
by  sale  of  the  property 

Khulna  Loan  Co  ,  Ltd  v.  Jnanendra  Nath  Bose,  45 
Jnd.  Cas  436,  22  C  W,  N,  145  (I>.  0  ),  followed 

Letters  Patent  Appeal  against  the  order 
of  Mr.  Justice  Odgers,  in  A.  A.  A,  O.  No.  103 
of  1^22,'d^ted  the  1st  April  1924,  and  print- 
ed as  82  Ind.  Cas.  827,  against  a  decree  of 
the  Court  of  the  Subordinate  Judge, 
Kutnbakonam,  in  A.  8.  No.  25  of  1U22, 
preferred  against  that  of  the  Court  of 
the  District  Munsif,  Valangirnan,  in  E.  P. 
No  516  of  1921,  in  0.  8.  No.  7  of  1903. 

Mr.  K.  Kuppusami  Iyer,  for  the  Appel- 
lant. 

JUDGMENT.—This  is  an  appeal  from 
the  order  of  our  learned  brother,  Odgers,  J. 
The  first  point    urged  for  the  appellant  is 
that    the  order  on    execution    application 
No.  386  of  1918  operated  aa  res  jitdicata    in 
favour  of  the  appellant  and  that  the  District 
Munsif  was  wrong  in  dismissing  the  exe- 
cution application  which    was  filed  on  the 
6th  August    1921.     The    District   Munsif 
decided  in  E,  P.  No,  386  of    1918  that  the 
appliction  of  the  appellant  was  not  barred 
by  limitation.     The    District  Munsif  who 
dealt  with  the  present  application  set  aside 
the  ex  parie  order  on  No.  386  of  1918  on  the 
ground  that  the  District   Munsif  who  first 
disposed  of  the  petition  had  not  before  him 
the  decision  of  the  Privy  Council  in  Khulna 
Loan  Co.,  Ltd.  v.  Jnanendra  Nath  Bose  (1). 
It  is  pointed  out  by  Mr.  Kuppusami  Iyer, 
and    very  rightly    too,  that  the    District 
Munsif  was  not  justified  in  setting  aside  the 
ex  part*  order  on  E.  A.  No  386  of  1918  as  the 
application  to  set  aside  the  ex  par  te  order  was 
made  more  than  30  Q  ays  after  the  judgment- 
debtor  became  aware  of  the  ex  parte  order 
against  him.    Against  this  order  a  revision 
petition  was  filed  by   the   appellant   and 
Odgers,  J.,  has  dismissed  the  revision  peti- 
tion.   The  order  on  E.  P.  No.  386  of  1918 
passed  by  the  former   District  Munsif  has 
ceased  to  be  in  force.    Therefore,  there  is 
no  order   now   upon  which  the  appellant 
can  rely  for  his  contention  that  the  plea  of 
limitation  is  barred  by  reason  of  the  order 
on  No,  386  of  1918.    Therefore,  we  disallow 
this  contention. 


The  next  contention  of  Mr.  Kuppuswami 
Iyer  is    that  the  application  is  not  barred 
by  reason  of  s    48  of  the  C    P.   C     The 
decree  in  this  case    is  a  combined  decree 
both  against  the  property  and  person  of  the 
mortgagor  under  the  old  Code  and  it  has 
been  distinctly  held   by  the    Privy   Council 
in  Khulna    Loan  Co  ,  Ltd    v.  Jnanendra 
Nath  Bose  (1)    that  a  decree  against  the 
person  becomes    unexecutable    after    the 
lapse  of   12  years    from  the    date  of  the 
decree,  in  other  words,  where  a  combined 
decree    gives  relief    against   the   property 
as  well  as  the  person  of  the  mortgagor, 
the  time  for  execution  against  the  person 
should  be  calculated   from  the  date  of  the 
decree    and    not     from    the  date    of  the 
mortgagee  failing  to  get  relief  by  sale  of 
the  properties.    In  this  case,  the  properties 
were  sold  on  the   26th  July   19ll  and   the 
mortgagee  obtained  only  part  satisfaction 
of  the  decree.    But  in  view  of  the  decision 
of  their  Lordships  of  the  Privy  Council  in 
Khulna  Loan  Co  ,  Ltd  v   Jnanendra  Nath 
Bose  (1)  we  are  unable  to  accept  the  conten- 
tion of  Mr,  Kuppuawami  Iyer  that  the  ap 
plication  for  the  execution  of  the  decree 
against  the  person  of  the  mortgagor  should 
be  considered  to  be  in  time,  for  the  reason 
that  he  could  not  have  executed  the  decree 
before  the  sale  of  the  pioperty  was  found 
insufficient    to  satisfy  his    decree.     If  an 
order  was  passed  after  the  property   had 
been  sold,  that  for  the  balance,  other   pro- 
perties of  the  mortgagor's  should  be  pro- 
ceeded against,     the   present    application 
would  be  in  time,  but  no  such  order  was 
passed  and,  theiefore,  the   application  is 
barred  by  a.  48  of  the  0.  P.  0. 

The  appeal  fails  and  is  dissmissed.  We 
make  no  order  as  to  costs,  as  the  respond- 
ent did  not  appear. 

Y.  N.  v,  Appeal  dismissed. 

(\)  45  Ind  Cas.  436,  22  C  W.  N.  145  (P   C  ). 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1831  OF  1922. 

October  27,  1925. 

Present— Mr.  Justice  Spencer. 

K  NARAYANASWAMI IYENGAR  AND 

OTHERS— DEPENDANTS  AND  ANOTHER— 

APPELLANTS 

versus 
A.  THIPPAYYA— PLAINTIFF  No.  2— 

RESPONDENT. 
Civil  Procedure    Code  (Act  V  of  19Q&),  Sch.  II 


818 

para  1 — Arbitration  through  Court — Arbitrator  re- 
quested to  decide  extraneous  matter — Award,  whether 
can  be  enforced 

Where  a  matter  in  dispute  in  a  suit  is  referred  to 
arbitration  through  the  Court  and  the  parties  private- 
ly request  the  arbitrator  to  decide  a  matter  which  is 
extraneous  to  the  suit,  his  decision  on  the  latter 
cannot  be  embodied  m  the  decree  to  be  passed  in 
the  suit,  but  there  is  nothing  to  prevent  the  parties 
from  enforcing  the  award  relating  to  the  extraneous 
matter  in  a  separate  suit 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Bellary, 
in  A.  S.No.  18  of  1922,  (A.  S.  No.  25  of  1922), 
on  the  file  of  the  District  Court,  Bellary, 
preferred  against  a  decree  of  the  Court  of 
the  District  Munsif,  Bellary,  in  O.  S. 
No.  234  of  1920. 

Mr.  C.  V.  Ananta  Krishna  Iyer,  for    the 
Appellant. 
Mr.  B.  Somayya,  for  the  Respondents. 

JUDGMENT,— In  O.  S.  No,  208  of  1916 
in  the  District  Munsif 's  Court,  Bellary,  the 
plaintiff  sued  for  a  declaration  that  the 
mortgage  bj  a  widow  named  Subbalak- 
shmiamma  and  a  sale  of  a  house  were 
invalid  beyond  her  life  time,  he  being 
the  reversioner  to  the  estate.  The 
mortgagee  purchaser  and  the  decree- 
holder  in  a  money  suit  filed  against 
the  widow  were  made  parties.  The 
matter  was  referred  to  arbitration  by  order 
of  Court  on  the  consent  of  the  parties. 
The  arbitrators  went  beyond  the  scope  of 
the  reference  and  declared  the  plaintiff  to 
be  entitled  to  obtain  immediate  possession 
of  the  hpuse  during  the  widow's  lifetime  on 
payment  of  Rs.  90u  which  was  not  a  matter 
referred  to  their  decision  through  Court. 
The  Court  that  tried  the  suit,  therefore, 
rightly  refused  to  embody  that  part  of  the 
award  in  its  decree.  In  the  present  suit 
the  same  plaintiff  has  sued  for  possession 
of  the  house  alleging  that  he  has  tendered 
Rs.  900  within  the  period  provided  in  the 
award  which  was  one  year  from  the  date 
of  the  award,  The  suit  was  dismissed  with 
costs,  the  District  Munsif  holding  that  there 
was  no  consent  on  the  part  of  the  defend- 
ant that  the  arbitrators  should  settle  the 
question  of  immediate  delivery  of  the  house. 
Upon  appeal  the  learned  Subordinate  Judge 
held  that  although  the  question  of  im- 
mediate possession  was  not  a  matter  re- 
ferred to  the  arbitrators  through  Court  yet 
the  allegation  in  the  plaint  that  the  arbitra- 
tors were  privately  asked  to  decide  this 
question  and  that  the  parties  agreed  to  abide 
by  their  decision  was  true.  He  disagreed 


HENGAR  V.  THIPPAYTA.  (.92  I.  C.  1926] 

with  the  finding  of  the  District  Munsif  who 
believed  the  evidence  given  by  the  defend- 
ant and  he  found  as  a  fact  that  the  defend- 
ant accepted  the  terms  of  the  entire  award 
not  only  in  respect  of  the  matters  referred 
through  Court  but  also  in  respect  of, the 
matters  which  the  parties  themselves  invit- 
ed the  arbitrators  to  decide.  This  is  a  find- 
ing of  fact  by  the  Appellate  Court  which 
had  jurisdiction  to  decide  it  and  I  must 
accept  the  finding. 

The  learned  Subordinate  Judge  on  the 
question  of  law  held  that  this  part  of  the 
award  could  be  enforced  as  an  agreement 
between  the  parties.  I  think  he  was  right. 
The  decision  in  Muhammad  Mumtaz  Ali 
Khan  v.  Farhat  Ali  Khan  (1)  dealt  only 
with  an  ultra  vires  award  upon  a  matter 
which  was  not  referred  to  arbitration  either 
through  Court  or  otherwise  and  Rampratap 
Chamria  v  Durgaprasad  Chamria  (2)  may 
be  distinguished  on  the  same  ground.  These 
cases  do  not  decide  that  if  there  is  a  private 
agreement  to  refer  to  arbitration  and  the 
arbitrators  pronounce  an  award  that  award 
cannot  be  enforced  in  a  subsequent  suit. 

The  only  other  point  is  whether  the  plaint- 
iff made  a  tender  of  Rs.  900  within  one 
year  of  the  date  fixed  in  the  award.  It  was 
found  that  he  gave  a  notice  through  his 
Vakil  offering  the  money  unconditionally 
before  the  due  date  and  he  applied  for  a 
challanior  remitting  Rs.  900  to  the  treasury 
on  the  10th  April  1918  which  was  the  last 
day  for  the  tender.  The  Subordinate  Judge 
was,  therefore,  right  in  holding  that  the 
plaintiff  had  complied  with  the  condition 
under  which  it  was  agreed  in  adjustment  of 
the  parties'  disputes  that  the  plaintiff  should 
pay  Rs.  900  and  get  possession  of  the  proper- 
ty. The  second  appeal  fails  and  is  dismiss- 
ed with  costs.  The  amount  deposited  in 
Court  may  be  paid  to  the  respondents 
Vakil  iu  adjustment  of  the  respondent's 
costs. 

v.  N.  v. 

z,  K.  Appeal  dismissed. 

(1)  23  A.    394,   28 1.    A,    190;   8  Sar.    P.   C.    J.  85 
(P.  0). 

(2)  83  Ind.  Cas.  300,  28   0.  W.  N.  424;  A.  1.  R.  1924 
Cal.  567. 


I.  0. 19&6] 


BMffeROR  V.   WU  TbNf 


849 


RANGOON  HIGH  COURT. 

CRIMINAL  APPEAL  No.  332  OF  1925. 

May  18,  1925. 

Present:— Mr  Justice  Brown. 
EMPEROR— APPELLANT 

versus 
NOATUN  MAU NO -RESPONDENT. 

Penal  Code  (Act  XLV  of  1860),  ss.  HI,  1^3— Un- 
lawful assembly,  what  is — Common  object — Meeting  for 
deliberation 

An  assembly  cannot  be  an  unlawful  asbcmbly  within 
the  meaning  of  s  141  of  the  Penal  Code  unless  the 
common  object  of  the  persons  composing  the  assembly 
falls  \\ithm  one  of  the  live  classes  described  in  that 
section  [p  849,  col  2 1 

For  the  purposes  of  s  141  of  the  Penal  Code  the 
"common  object"  must  denote  a  common  object  then 
and  there  as  an.  assembly  to  take  action,  and  it  cannot 
be  held  that  there  was  such  a  common  object  because 
the  members  of  the  assembly  agreed  at  some  uncertain 
futme  date  to  take  individual  action  [ibid  ] 

Wheie  the  members  of  an  assembly  merely  agiee 
as  to  what  they  should  individually  do,  when,  in  the 
case  of  each  person  sepaiately,  a  demand  is  made  for 
the  payment  of  a  certain  tax,  the  asssmbly  does  not 
come  within  the  definition  of  an  unlawful  assembly 
as  laid  down  in  s  141  of  the  Penal  Code  [p  850,  col  1  ] 

Criminal  appeal  from  an  order  of  the 
Sub-Divisional  Magistrate,  Thayetiri)  o,  in 
Cr.  Reg  No  131  of  1924. 

The  Assistant  Government  Advocate,  for 
the  Crown. 
Mr.  Maung  ATi,  for  the  Respondent. 

JUDGMENT.— The  respondent,  Nga 
Tun  Maung,  was  convicted  by  the  Sub- 
Divisional  Magistrate,  Thayetmyp,  under 
the  provisions  of  s.  143  of  the  Indian  Penal 
Code  and  sentenced  to  suffer  six  months' 
rigorous  imprisonment.  On  appeal,  this 
conviction  was  set  aside  by  the  Sessions 
Judge  and  the  respondent  was  acquitted. 
The  Local  Government  has  now  preferred 
an  appeal  against  this  order  of  acquittal. 

The  facts  as  found  by  the  learned  Sessions 
Judge  are  as  follows. — 

The  respondent  is  or  was  the  president  of 
a  national  association  in  Thayetmyo.  On 
the  29th  of  September  a  largely  attended 
meeting  was  held  at  Bangon  in  one  of  the 
Pongyi-Kyaungs.  At  that  time  there  was  a 
wide-spread  feeling  throughout  the  country 
against  the  payment  of  capitation  tax.  The 
accused  made  a  speech  at  the  meeting  in 
which  he  suggested  that  the  imposition  of 
capitation  tax  was  peculiar  to  Burma  and 
illegal.  He  advised  the  people  to  plead 
poverty  and  thus  evade  payment  of  the  tax 
when  demand  is  made.  The  proposals  were 
put  to  the  meeting  and  were  accepted 

H 


by  all  those  present.  These  facts  are  not 
admitted  by  the  respondent  who  gives 
quite  a  different  version  of  what  took  place 
at  the  meeting  It  is  not,  however,  neces- 
sary for  me  to  go  into  the  facts  of  this  cas^ 
It  is  not  alleged  on  behalf  of  the  Crown 
that  the  facts  can  be  put  more  strongly  in 
favour  of  the  prosecution  than  found  by*  the 
Sessions  Judge,  and,  in  my  opinion,  the 
Sessions  Judge  was  peifectly  right  in  hold- 
ing that  on  those  facts  the  offence  of 
which  the  respondent  was  convicted  by 
the  Magistrate  had  not  been  established. 

Section  143  provides  punishment  for  any 
person  who  is  a  member  of  an  unlawful 
assembly.     An  unlawful  assembly  is  defined 
in  s  141  of  the  Code     An  assembly  cannot 
be  an  unlawful  assembly  unless  the  common 
object  of  the  persons  composing  the  assemb- 
ly falls  within  one  of  the  five  classes   de- 
scribed in   that  section     The  contention  in 
the  present     case    is   that    the    case  falls 
within     the  second    class    and     that    the 
common   object   of  the  persons  composing 
the  assembly  was   to   resist   the   execution 
of  any  law  or  of  any  legal  process    Section 
141  is  the  first  section  in  Ch.  VIII  which  is 
headed  "Offence  against  the   Public  Tran- 
quillity "     It  appears  to  have  been  founded 
on  the   general  principles   of   the   English 
Common  Law  to   protect  the  public  peace 
from  dangers  to  it  caused  by  the  combina- 
tion of  the  forces  of  a   number  of   persons. 
In  the  present  case  there  was  no  suggestion 
whatever  that  the  assembly  should  make  use 
of  its  members  and  jointly  resist  any  law 
or  legal  process     The  members  of  the  as- 
sembly merely   agreed    as   to    what     they 
should  individually  do,  when,   in    the  case 
of  each  person,   separately,  a  demand  was 
made  for  the   payment    of    capitation  tax. 
Even  assuming  that  mere  refusal    to  pay   a 
tax  would  amount  to  resistance  of  the  exe- 
cution of  a  law   I  find  myself   unable  to 
hold  that  the  mere  agreement  entered  into 
as  to  what  they  should  individually   do  on 
a  subsequent  occasion  amounts  to  their  hav- 
ing a  common  object  to  resist      There   was 
never  any  intention  of  resisting  as  a  body 
either  then  or  at  any  future  time.    If  s.  14i 
be  read  as  a  whole  and  with  due  regard   to 
the  position  it  occupies  in  the  Code  it  seems 
to  me  that  ^common  object11  must  denote  a 
common  object  then  and  there  as  an  assemb- 
ly to  take  action,  and  that  it  cannot  be  held 
that    there  was    such    a    comjnon  object 
because  the  members  of  the  assembly  agreed 
at  some  uncertain  future   date  to  take  in- 


IMAM  At!  V.  BMPBROfe. 


dividual  action.  It  would  be  an  undue 
extension  of  the  meaning  of  the  word 
"object"  to  say  that  the  object  of  meeting 
or  of  any  of  the  persons,  composing  the 
meeting  was  to  resibt  the  law.  The  object 
of  the  meeting  was  to  discuss  and  agree  as 
to  what  the  members  of  the  meeting  should 
do  individually  on  subsequent  occasions. 

The  learned  Assistant  Government  Ad- 
vocate admits  that  he  is  unable  to  cite  any 
case  in  which  an  assembly  has  been  held 
to  be  an  unlawful  assembly  where  there 
has  been  no  intention  there  and  then  as  an 
assembly  to  carry  out  the  unlawful  object. 
I  hare  been  unable  to  find  any  direct 
judicial  authority  on  the  point.  In  Gour's 
Commentary  on  the  Indian  Penal  Code 
(page  566)  the  following  passage  occurs: 
*'But  it  must  be  a  part  of  the  plan  of  the 
meeting  that  the  common  object  should  be 
forthwith  carried  into  effect,  for,  if  men 
meet  only  to  arrange  plans  for  future  action 
it  cannot  be  said  that  there  was  any  fear  of 
the  breach  of  the  peace  without  which  there 
can  be  no  unlawful  assembly/*  This  passage 
appears  to  be  founded  on  some  English 
authority  which  1  have  been  unable  to 
procure.  But  it  appears  to  me  to  be  in 
accordance  with  the  natural  meaning  of 
s.  141  of  the  Indian  Penal  Code, 

In  Ratanlal's  Law  of  Crimes  the  learned 
commentators  appear  to  be  of  the  same 
opinion  for  they  state  in  their  notes  on 
B,  141:  "It  seems  also  that  there  must  be 
some  present  and  immediate  purpose  of 
carrying  into  effect  the  common  object  and 
that  a  meeting  for  deliberation  only,  and 
to  arrange  plans  for  future  action  is  not  an 
unlawful  assembly/1 

It  has  been  contended  that  to  constitute 
an  unlawful  assembly  it  is  not  necessary 
that  violence  should  actually  be  used.  This 
contention  is  no  doubt  correct.  But  to  con- 
stitute an  offence  under  s.  143  the  common 
object  as  defined  in  s.  141  must  be  proved 
to  exist.  In  my  opinion  the  view  of  the 
law  taken  by  the  learned  Sessions  Judge 
was  perfectly  correct  and  the  appellant  was 
rightly  acquitted  of  the  offence  of  being  a 
member  of  an  unlawful  assembly.  I  dis- 
miss this  appeal. 

z.  K,  Appeal  dismissed. 


I.  0. 1926} 


LAHORE  HIGH  COURT. 

CRIMINAL  APPEAL  No.  897  OF  1924. 

December  17, 1924. 
Present ;—  Mr.  Justice  Zafar  Ali. 
IMAM  ALI— ACCUSBD — APPELLANT 

versus 

EMPEROR— RESPONDENT. 
Criminal   Procedure    Code    (Act  V  of  1898),  *   S5> 
Illustration—Penal  Code  (Act  XLV  of  ISfiO),  ss  S66, 
S76 — Abduction  with  intent  to  commit  rape — Commis** 
sion  of  rape — Sentence. 

If  a  person  abducts  a  woman  with  latent  to  rape 
her  and  does  rape  her,  he  cannot  be  awarded  separate 
sentences  under  ss.  366  and  376,  Penal  Code.  [p.  851, 
col,  L] 

Appeal  from  an  order  of  the  Magistrate 
First  Class,  exercising  enhanced,  powers 
under  s.  30  of  the  Or.  P.  0..  Jhelum,  dated 
the  28th  July  1924. 

Mr.  Dhan  Raj  Shah,  for  the  Appellant. 
Mr.  C.  H.  Garden    Noad,  Assistant  Legal 
Remembrancer,  for  the  Respondent. 

JUDGMENT.— The  appellant  Imam 
Ali  aged  about  20  has  been  convicted  under 
ss.  366,  376  and  326  of  the  Indian  Penal 
Code  and  sentenced  to  three  years*  rigorous 
imprisonment  for  each  offence,  the  sentences 
to  run  consecutively.  The  story  of  his 
victim  Musammat  Bassan,  who  was  a  spins- 
ter 16  years  of  age,  was  biiefly  as  fol- 
lows : — 

She  was  coming  with  other  girls  of  her 
village  with  a  pitcher  full  of  water  on  her 
head.  As  she  approached  the  door  of  the 
accused  the  latter  who  was  already  standing 
there  came  out  and  caught  hold  of  her. 
He  threw  down  her  pitcher  from  her  head,, 
and  dragged  her  away  into  a  room  inside- 
his  house.  There  he  asked  her  to  eloper 
with  him  which  she  refused  to  do.  He 
then  raped  her  and  after  that  again  asked 
her  to  run  away  with  him.  She  refused 
again.  He  then  cutoff  her  nose  and  up- 
per lip  with  a  knife.  The  learned  Counsel 
who  has  appeared  for  the  appellant  expresses 
his  inability  to  urge  that  it  was  not  the 
accused  who  cut  off  the  girl's  nose  and  lip 
or  that  the  girTs  main  story  is  unworthy 
of  credit.  According  to  the  evidence  of  a 
lady  doctor,  her  hymen  had  been  recently 
ruptured  and  so  there  can  be  no  manner 
of  doubt  that  the  accused  dragged  her  awajr 
into  the  house  and  there  raped  her  and  then 
cut  off  her  nose  and  upper  lip. 

The  girl  had  once  been  engaged  to  him 
but  the  engagement  had  been  broken  off, 
and  the  accused  had  married  another  girl. 
Later  on  his  wife  died  and  he  wanted  tq 


[92 1. 0.  lfi§6] 

marry  the  complainant  bat  her  parents  did 
not  agreo.  This  was  the  motive  for  the  most 
dastardly  act  done  by  him. 

His  Counsel,  however,  urges  that  separate 
sentences  under  as.  366  and  376  could  not 
be  awarded  and  in  support  of  this  conten- 
tion he  cites  the  unpublished  Division 
Bench  judgment  of  the  Punjab  Chief  Court 
in  Criminal  Appeal  No,  101  of  1914,  dated 
the  13th  August  1914.  In  that  case  the 
learned  Judges  held  by  a  reference  to  the 
Illustration  to  s  35  of  the  Cr.  P  C  ,  that 
if  a  parson  abducte  a  woman  with  intent 
to  rape  her  and  doss  rape  her  he  cannot 
be  awarded  separate  sentences  under  ss  366 
and  376  of  the  Indian  Penal  Code  In 
view  of  that  ruling  I  set  aside  the  sentence 
under  s.  365  and  maintain  the  sentences 
under  ss.  376  and  326,  Indian  Penal  Code. 

Mr.  Noad  on  behalf  of  the  Crown  states 
that  the  punishment  thus  reduced  is  in- 
adequate and  that  he  will  ia  due  course 
file  an  application  for  enhancement  of  sent- 
ences. This  will  be  considered  when  he 
will  make  the  application.  At  present  the 
result  is  that  the  appeal  is  accepted  to  the 
extent  stated  above. 

z.  K.  Appeal  accepted. 


LOCAL  GOtfBSNMgNf  V.  DoifA  KPNBf. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

CRIMINAL,  REVISION  No.  141  OF  1925. 

July  17,  1925. 

Present:— Mr.  Findlay,  Officiating  J.  C. 
LOCAL  GOVERNMENT— APPLICANT 

versus 
DOM  A.  KUNBI— ACCUSED— NON-APPLICANT. 

Criminal  Procedure  Code  (Act  V  of  1898),  ss  435  to 
kS9— Revision— Judicial  Commissioner's  CQH*^  power 
of — Interference  with  conviction  by  Single  Judge— 
(Conviction,  alteration  in,  by  Judge — Enhancement  of 
sentence  at  instance  of  Government — Procedure. 

It  is  not  open  to  the  Judicial  Commissioner's  Court 
under  s.  439  of  the  Cr.  P,  C  to  alter  or  interfere 
with  a  conviction  which  has  been  arrived  at  by  a 
Judge  of  the  Court,  as  ss  435  to  439  of  the  Code 
clearly  contemplate  interference  only  with  the  findings, 
sentences  or  ordeis  of  any  mfeiior  Court,  [p  852, 
col.  L] 

Where,  however,  a  Judge  of  the  Judicial  Commis- 
sioner's Court  hearing  an  appeal  against  a  conviction, 
AiterB  the  conviction  to  one  for  a  graver  offence,  but 
does  not  himself  enhance  the  sentence,  but  suggests 
an  action  in  that»ijNitotf  by  the  Local  Government, 
his  judgment'  is  ifot*  teal  -frpm  that  point  of  view 
and  -the  Judicial  ^oinjijuspiox^r's  Courtr  does  not 
become'  s*  fuictu*  o^cio  'and -is  cotopeteat'  to  tear 


application  on  behalf  of  the  Local  Government  |bt. 
enhancement  of  the  sentence,  [ibid.] 

If  a  finding  of  a  Ssssions  Judga  for  culpable 
homicide  has  been  altered  by  the  Appellate  Court 
to  onafor  murder,  it  is  open  to  the  Judicial  Commis- 
sioner's Court  sitting  aa  a  Court  of  Revision  to  pass 
a  legal  sentence  for  the  offence  of  murder,  [p  852, 
col  2] 

The  propar  construction  to  be  put  on  s  439  (4),  Cr 
P,  C  ,  is  that  it  refers  to  cases  where  there  has  been 
a  complete  acquittal  and  not  to  cases  where  there  lias 
bdett  only  an  alteration  of  findings  by  the  Appellate 
Court,  the  conviction  by  the  Sessions  Couit  being 
kept  in  tact  [ibid  J 

Kambam  Bali  Reddy  v  Emperor,  22  Ind  Cas  756, 
37  M  119,  15  Cr  L  J.  180,  followed 

It  ia  open  to  a  Judge  of  the  Judicial  Commissioner's 
Court,  who  heais  an  appeal  against  a  conviction  and 
who  comes  to  the  conclusion  that  a  graver  offence  has 
been  committed,  not  only  to  alter  the  conviction  but 
to  procsed  on  the  revisional  side  to  issue  notice  to  the 
accused  to  show  cause  why  the  sentence  should  not  be 
enhanced,  and,  if  no  sufficient  cause  is  shown,  to  en- 
hance the  sentence  accordingly  [p  854,  col  1  ] 

Manqal  Naran  v  Emperor,  87  Ind  Cas  424,  49  B 
450,  27  Bom  L  R  355,  (1925)  A  I  K  (B )  268,  26 
Cr  L  J  968,  followed 

Application  for  revision  of  the  judgment 
of  the  Sessions  Judge,  Nagpur,  dated  the 
24th  February  1925,  in  Sessions  Trial  No.  19 
of  192-1. 

Mr  G  P.  Dick  (Government  Advocate),  for 
the  Applicant. 
Mr.  V.  Bosc,  for  the  Non- Applicant. 

ORDER* — The  present  application  has 
been  filed  by  the  Local  Government  under 
somewhat  exceptional  circumstances.  The 
non-applicant  Doma  Kunbi,  after  being 
charged  with  the  offence  of  the  murder  of  one 
Jago  Kunbi,  was  convicted  by  the  Sessions 
Judge,  Nagpur  of  the  minor  offence  of 
culpable  homicide  notamounting  to  murder 
tinder  s.  3l4  of  the  Indian  Penal  Code,  be- 
ing acquitted  of  the  charge  of  murder,  and 
was  sentenced  to  5  years1  rigorous  imprison- 
ment, He  appealed  against  the  said  sen- 
tence to  this  Court,  the  appeal  being  heard 
by  Hallifax,  A.  J.  C.,  who  came  to  the  con- 
clusion that  the  offence  committed  by 
Doma  was  one  of  murder  and  altered  the 
conviction  accordingly.  The  learned  Addi- 
tional Judicial  Commissioner  held  that  he 
could  not  interfere  with  the  sentence  passed 
but  added  that  the  case  would  be  brought 
to  the  notice  of  the  Local  Government* 
Presumably,  as  a  result  of  this  the  Local 
Government  have  now  applied  in  revision 
to  the  effect  that  an  appropriate  and  legal 
sentence  in  the  case  of  a  conviction,  for 
murder  should  be  passed  by  this  Court,  and 
we  have  now  heard  the  present  application. 

The  learned  Counsel  for  the  non- applicant 
has  strenuously  urged  that  it  was  open  tg 


tOOAt  GOVERNMENT  V.  DOMA  K3NBI,  [S2  I.  0.  1926] 

tta,  sitting  as  a  Bench,  to  go  into  the  merits     opinion,  for  the  infliction  of  the  death  penalty 


the  conviction  for  murder  and,  if  neces- 
sary to  alter  that  conviction.    He  has  point- 
fed  out  that  otherwise  he  finds  himseli  in  an 
Itaomalous  position  as  all  that  it  would  be 
open  to  him  to  urge  before  us  would  be  that 
the  non-applicant  should  be  sentenced  to 
the  lesser  of  the  two  punishments  provided 
for  the  offence  of  murder.    We  fully  realise 
that  the  position  is  anomalous  and  exception- 
al but  we  are  nevertheless  of  opinion  that, 
sitting  as  a  Court  of  Revision,  it  is  not  open 
to  us  under  s.  439,  Or,  P.  C.,  to  alter  or  inter- 
fere with  a   conviction    which    has  been 
arrived  at  by  a  Judge  of  this  Court.    Sec- 
tions 435  to  43tf  clearly  contemplate  inter- 
ference only   with  the  findings,    sentences 
or  orders  of  any  inferior  Court.    This  fact 
alone  makes  it    absolutely    clear,  in     our 
opinion,  that  we  cannot,  even  if  we  should 
see  reason  to,  interfere  with  the  conviction 
for  murder  ai rived  at  by  Halhfax,  A.  J.  C. 
It  has  been  urged  on  behalf  of  the  non- 
applicant  that  the  action  of  this  Bench  in 
taking  cognizance  of  the    case    was  ultra 
vires    and    that    this    Court   had    become 
functus  officio  as  soon  as  Hallifax,  A.  J.   0., 
had  delivered  his  judgment  in    Criminal 
Appeal  No  72  of  iy25.    It  was  admitted  by 
Counsel  for  the  non-applicant  that  it  might 
have  been  open  to  Hallifax,  A.  J.  C.  even 
to  enhance  the  sentence,  but  it  is  urged  that, 
he  not  having  done  so,  we  are    precluded 
from  now  interfering.    Reliance  has  been 
placed  on  s.  369,  Or.  P.  C,,  in  this  connec- 
tion, but  we  cannot  agree  that  the  judgment 
of  Hallifax,  A.  J*  C.,  can  from  this  point  of 
view,  be  regarded  as  a  final  one.    TJtie  later 
part  of  that  judgment  clearly  contemplates 
further  action    by  this  Court  '  in  case  the 
Local  Government  decided  to  move  in  the 
matter,  and  the    present  proceedings  must 
be,  in  our  opinion,  regarded  as  a  completion 
of,  or  necessary  addendum  to  the  judgment 
delivered  by  Hallifax,  A.  J.  C. 

We  do  not  think  it  necessary  to  enter  into 
the  abstract  argument  offered  by  Counsel 
for  the  non-applicant  to  the  effect  that,  theo- 
retically at  least  the  pre&ent  non-applicant 
as  a  result  of  our  taking  in  to  consideration 
the  application  of  the  Local  Government, 
is  placed  in  peril  of  his  life,  and  that  in  every 
such  case  the  rules  of  this  Court  require 
that  the  appeal  should  be  heard  by  a  Bench. 
We  are  satisfied— and  we  informed  Counsel 
for  the  non-applicant  in  the  course  of 
argument  of  this  that  the  circumstances  of 
this  case  would  not,  in  any  event,  call  in  our 


and  from  the  practical  pointof  view,  therefore 
this  line  of  argument  becomes  one  which  it 
is  needless  to  consider  in  the  circumstances 
of  the  present  case. 

The  next  argument  offered  on  behalf  of  the 
non-applicant  is  that  as  he  had  already  been 
acquitted  of  the  charge  of  murder  and  as 
there  has  been  no  appeal  by  the  Local 
Government  against  that  acquittal,  we  are 
precluded  from  taking  cognizance  of  the 
present  case.  Reference  has  been  made 
to  the  fact  that  under  s.  423  (b)  (2)  this 
Court  may  have  been  entitled  to  alter  the 
finding  to  one  of  murder,  but  it  is  expressly 
prohibited  from  enhancing  the  sentence. 
We  are,  however,  now  sitting  as  a  Court  of 
Revision,  and  the  finding  having  been 
legitimately  altered  by  Hallifax,  A.  J.  C,, 
sitting  as  a  Court  of  Appeal,  to  one  of 
murder,  \\e  are  of  opinion  that  it  is  within 
our  power,  sitting  as  a  Court  of  Revision,  to 
pass  a  sentence  which  will  be  a  legal  one 
in  view  of  the  conviction  for  murder.  In 
Kambam  Bah  Reddy  v  Emperor  (1)  Benson 
and  Ayyar,  J  J.,  held  as  regards  s.  439,  sub- 
s.  (4),  that  the  proper  construction  to  be 
put  thereon  is  that  it  only  refers  to  cases 
where  there  has  been  a  complete  acquittal. 
In  this  case  there  was  no  complete  acquit- 
tal before  the  Sessions  Judge.  All  that 
the  latter  Court  did,  was  to  record  a  find- 
ing of  culpable  homicide  not  amounting 
to  murder  instead  of  one  of  murder  itself. 
Wre  concur  with  the  two  learned  Judges 
mentioned  that  this  is  the  proper  construc- 
tion to  be  put  on  s.  439,  sub-s.  (4),  Cr.  P.  C. 

in  the  present  case,  therefore,  all  that  is 
required  of  us  to  do  is  to  pass  a  legal 
sentence  in  view  of  the  conviction  for 
murder  recorded  by  Hallifax,  A.  J.  C.  We 
accordingly  enhance  the  sentence  of  5  years1 
rigorous  imprisonment  passed  by  the 
Sessions  Judge,  Nagpur,  to  one  of  trans- 
portation for  life. 

In  view,  however,  of  the  peculiar  circum- 
stances of  this  case,  we  have  judged  it 
well  to  make  an  independent  examination 
of  the  lecord  and  to  record  whether  or  not, 
in  our  opinion,  the  non- applicant  is  guilty 
of  murder.  In  the  written  argument  (part 
of  which  challenges  the  merits  of  the 
conviction)  which  we  have  allowed  Counsel 
for  the  non-applicant  to  file,  various  con- 
siderations have  been  advanced  attacking 
the  conviction  "Tor,  murder  on  the  merits, 

(1)  22  lad.1  Caa.  j?56;  ,3,7  M.  119;  15  Or,  L,  J,  160, 


[8!  I.  0. 1926]  t-ooAt, 

Raferenc?  has  been  made  to  the  fact  that 
some  prosecution  witnesses,  at  least,  have 
from  time  to  time  changed  or  improved 
upon  their  original  stories.  Again,  stress 
has  been  laid  on  the  fact  that  the  weapon, 
with  which  Jago  was  stabbed,  has  been 
described  in  various  ways  from  time  to 
time,  at  one  time  as  a  tutari,  for  example, 
while  at  another  as  a  gupti.  We  do  not 
think  that  this  matter  is  of  any  vital 
importance.  The  weapon  in  question  has 
been  fully  described  by  Hallifax,  A.  J.  C  , 
and  it  was  certainly  of  a  hybred  nature, 
misdescription  of  which  was  also  bound  to 
occur.  Apparently,  there  was  a  shemb  or  so- 
called  ferrule  on  the  weapon,  which  Vithal 
removed  before  he  handed  it  to  Doma-  c/ 
the  evidence  of  Laxman  (P.  W  No.  1). 
That  the  weapon  used  had  a  sharp  pointed 
end  is  clearly  shown  by  Hallifax,  A.  J.  C  , 
and  Doma  must  have  been  well  aware  of 
this.  The  evidence  of  Laxman  (P.  W.  No  1), 
Bajirao  (P.  W.  No  9),  Sakharam  (P.  W 
No.  10),  Raja  (P.W.  No  11)  and  Jago  (P 
W.  No  12)  leaves,  in  our  opinion,  no  doubt 
that  Doma  did  stab  Jago  with  this  weapon, 
as  found  by  Hallifax,  A.  J  C.  We  do 
not  think  much  importance  can  be 
attached  to  the  fact  that  C  V  Sahasar- 
budhe,  Assistant  Medical  Officer,  (P.  W. 
No  10  in  the  Committing  Magistrate's 
Court),  had  originally  described  the  wound 
as  a  lacerated  one,  if  he  did  so,  the  mis- 
take was,  in  all  probability,  a  careless  one. 
In  view  of  certain  aspects  of  the  medical 
evidence  it  has,  indeed,  been  suggested 
on  behalf  of  the  non-applicant  that  the 
rupture  in  the  long  may  have  been  caused 
subsequently  by  a  further  insertion  of  the 
same  or  another  weapon  by  some  person 
other  than  the  non-applicant.  This  theory 
seems  to  us  too  far  fetched  a  one  to  require 
detailed  discussion  We  are  satisfied,  in 
particular  on  the  evidence  of  Lt  Col.  Tarr, 
Civil  Surgeon,  (P  W,  NJ.  5  in  the  Commit- 
ting Magistrate's  Court),  that  curious  and 
exceptional  though  this  case  may  be  from 
the  medical  point  of  view,  Jago's  death 
'occurred  as  a  direct  result  of  the  stab 
inflicted  by  the  non-applicant. 

Much  has  been  made  of  the  fact  that 
in  the  deceased's  written  report  made  to 
the  Police  (E*>  P.-l)  and  in  the  earlier 
reports  of  the  affair  generally  the  tendency 
was  to  describe  Jago  as  only  haying 
received  an  ordinary  beating  with  sticks 
and  the  like.  Very  obviously,  however, 
the  eye-witnesses  did  not  realise,  nor  is 


V.  DOMA  K0NBI.  853 

this  to  be  wondered  at,  that  the  real  and 
vital  injury  had  been  caused  by  the  one 
thrust  given  with  the  so-called  tutari. 

Again,  mention  has  been  made  of  the 
fact  that  the  Civil  Surgeon  considers  that 
the  deceased's  arm  must  have  been  at  right 
angles  to  his  body  before  the  piece  of 
iron  found  therein  could  have  entered 
Jago's  person  in  the  way  it  did,  and  it 
has  been  suggested  that  the  evidence  goes 
to  show  that  the  deceased  was  held  down 
when  the  stab-wound  was  inflicted.  In  the 
course  of  a  struggle  of  this  nature,  the 
deceased's  arm  would,  at  some  stage  or 
other,  in  all  probability,  be  at  an  angle 
to  his  body,  which  would  permit  of  the 
thrust  in  question  having  been  given,  and 
we  see  nothing  in  this  suggestion  in  the 
non-applicant's  favour. 

The  theory  of  accident  is  also,  in  our 
opinion,  an  untenable  one.  The  deliberate 
removal  o{  the  ferrule,  before  the  weapon 
was  handed  over  to  Doma,  and  his  delibe- 
rate use  of  it  immediately  thereafter 
sufficiently  dispose  of  this  suggestion. 
Even,  on  the  merits,  therefore,  we  are 
satisfied  that  the  conviction  in  *  the  present 
case  was  bound  to  be  one  for  murder. 

At  the  same  time,  in  case  the  Local 
Government  should  see  cause  to  show  any 
clemency  to  the  non-applicant  by  way  of 
substitution  of  a  period  of  rigorous  im- 
prisonment in  place  of  the  sentence  of 
transportation,  which  we  have  felt  bound  to 
pass,  we  desire  to  record  our  opinion  that 
the  circumstances  of  this  case  would  seem 
to  call  for  some  clemency  being  shown  to 
the  non  applicant  We  think  that  the  said 
circumstances,  in  all  probability,  bring  the 
ca,se  under  the  third  clause  of  s.  300, 
Indian  Penal  C;>de,  vis ,  that  the  non- 
applicant  stabbed  Jago  with  the  intention 
of  causing  bodily  injury  to  him  and  that 
this  bodily  injury  was  sufficient  in  the 
ordinary  course  of  nature  to  cause  death. 
We  do  not  think  that  the  non-applicant  can 
even  be  credited  with  the  constructive 
knowledge  that  he  knew  the  bodily  injury 
he  intended  to  inflict  was  likely  to  cause 
death.  In  other  words,  the  case  does  not 
come  under  the  second  clause  of  s.  300, 
Indian  Penal  Code.  The  offence  was  com- 
mitted in  the  course  of  a  sudden  brawl,  in 
which  ths  main  parties  concerned  were 
highly  excited  and  had  lost  control  of 
themselves  as  a  consequence  of  the  dispute 
over  the  field  concerned.  Still  further, 
although  considerable  violence  must  have 


854  EAJPBROB  t>. 

been  used  in  inflicting  the  ttfbw,  the  qi 
tion  remains  whether  the  non-applio 
fully  realised  what  the  result  of  hie  &cl 
might  have  been,  although  he  must,  never- 
theless, be  credited  with  the  constructive 
intention,  already  referred  to  and  specified 
in  the  third  clause  of  s.  300,  Indian  Penal 
Code.  In  all  the  circumstances  of  the  case, 
therefore,  we  desire  to  record  our  opinion 
that  the  interests  of  justice  would  be  met 
by  a  sentence  of  rigorous  imprisonment  of 
from  7  to  10  years. 

We  desire  to  add  that,  in  our  opinion,  it 
is  open  to  a  Judge  of  this  Court,  who  hears 
an  appeal  against  a  conviction  and  who 
comes  to  the  conclusion  that  a  grave  offence 
has  been  committed,  not  only  to  alter  the 
conviction  but  then  to  proceed  on  the 
revisional  side  to  issue  notice  to  the  accus- 
ed to  show  cause  why  the  sentence  should 
not  be  enhanced  and,  if  no  sufficient  cause 
is  shown,  to  enhance  the  sentence  accord- 
ingly. Wefibd  support  for  our  review  in 
the  recent  case  of  Mangal  Naran  v.  Em- 
peror (2)  dfMded  by  Macleod,  C.  J.,  and 
Crump,  J. 

N.  H.  Order  accordingly. 

(2)  87  Ind  Cas.  424;  49  B   450,  27  Bom  L.  R  353, 
(1925)  A,  I   R    (B  )  268,  26  Or.  L.  J.  968  55. 


RANGOON  HIGH  COITRT. 

CRIMINAL  REVISION  No.  696-B  OF  1925 

June  30,  1925. 

Present: — Mr.  Justice  Maung  Ba. 
EMPEROR— PETITIONER 

versus 
MAUNG  THAN  GYAUNG— RESPONDENT. 

Burma  Villagt  Act  (VI  of  1007),  s  $1  (a)- Pwe, 
meaning  of —Dramatic  performance  held  by  amateurs 
for  public  entertainment — Notice,  absence  of — Robbery 
— Offence, 

For  the  purpose*  of  the  Burma  Village  Act  a 
pwe  ordinarily  includes  a  theatrical  or  dramatic  per- 
formance held  for  public  entertainment  whether  on 
public  or  private  property. 

The  object  ol  requiring  a  permit  for  such  a  per- 
formance is  to  ensure  that  the  authorities  should  get 
timely  notice  to  arrange  for  precautionary  measures. 

Accused  ^ftve  a  dramatic  performance  at  his  house 
for  public  entertainment  without  obtaining  a  permit 
for  the  same.  The  troupe  was  composed  of  local 
amateurs  During  the  performance  a  robbery  took 
place  in  the  neighbourhood: 

Held,  that  the  accused  was  guilty  of  an  offence 
\mder  a  VI  (a)  of  the  Burma  Village  Act, 


QYAUHCk  [92  I,  0,  1926] 

Criminal  revision  from  an  order  of  the 
Additional  Magistrate,  Allanmvo,  in  Crimi- 
nal Regular  Trial  No.  27  of  1925. 

JUDGMENT.— Maung  Than  Gyaung 
of  Myitnahole  village  in  the  Allanmyo 
Township  held  a  shinbyu  ahlu&t  his  house. 
The  local  amateurs  designated  as  ayat-zat 
performed  without  payment  in  his  com- 
pound on  the  night  of  13th  February  last. 
Unfortunately  a  robbery  took  place  daring 
the  performance  a  short  distance  away. 
Maung  Than  Gyaung  had  taken  no  previous 
permit  for  the  show.  Consequently  he 
was  run  in  under  e.  21  (a),  Burma  Village 
Act,  and  fined  Rs,  5. 

The  learned  District  Magistrate  of  Tha- 
yetmyo  doubted  whether  any  permit  was 
required  for  such  amateur  performances  by 
villagers  and  submitted  the  case  with  a 
recommendation  that  the  conviction  and 
sentence  be  set  aside. 

Fpr  the  purposes  of  the  Act  pwe  ordi- 
narily includes  a  theatrical  or  dramatic  per- 
formance held  for  public  entertainment 
whether  on  public  or  private  property. 

The  gist  of  the  above  definition  is  "the 
holding  for  public  entertainment.'*  The 
object  of  requiring  a  permit  is  to  ensure 
that  the  authorities  get  timely  notice  to 
arrange  for  precautionary  measures.  In 
the  present  case  the  performance  was  for 
public  entertainment  at  an  ahlut  and  as  the 
authorities  had  not  been  given  any  notice, 
a  robbery  took  place.  Moreover,  though 
the  troupe  was  composed  of  local  amateurs, 
there  is  evidence  to  the  effect  that  this 
zat  used  to  perform  in  other  villages  on 
hire  ranging  from  Rs.  40  to  Rs.  60.  This 
offence  was  committed  in  the  Allanmyo 
ToWnship  where  the  Local  Government 
have  deemed  fit  to  declare  even  payapues 
and  pongyibyans  to  be  pwes  for  the  purposes 
of  the  Act  (see  General  Department  Noti- 
fication at  page  43  of  the  Village  Manual). 

I  am  of  opinion  that  this  ayat-sat 
comes  within  the  purview  of  s.  21  of  the 
Village  Act.  Let  the  case  be  returned 
accordingly. 

z.  K,  Case  returned. 


£tt 1.  0. 1928] 


DWAftKA  t»,  Slf  PBROft, 


MADRAS  HIGH  COURT. 

CRIMINAL  REVISION  OASI  No.  219  op  1924. 
OHIMINAL  REVISION  PETITION  No.  188  OP 

1924. 

December  11,   1924. 

Present :— Mr.  Justice  Srinivasa  lyengar. 

VAITHI  MATHARAN  AND  OTHBKS— 

PETITIONERS 

versus 
NARAYANASWAM[   IYER— R«SPONDBNT. 

Penal  Code  (Act  XLV  of  I860),  s  379— Theft— 
Catching  fish  in  poromboke  tank  in  assertion  of  bona 
fide  right—Offence. 

Catching  fiah  m  a  poromboke  tank  in  the  assertion 
of  a  bona  fide  right  does  not  amount  to  the  offence  of 
theft 

Petition,  under  ss.  435  and  439  of  the  Cr. 
P,  0.,  1898,  praying  the  High  Court  to  revise 
an  order  of  the  Court  of  Session  of  the  West 
Tanjore  Division,  at  Tanjore,  dated  the  20th 
December  1923,  in  Cri.  R.  P.  No  21  of 
1923  (C.  0.  No.  85  of  1923,  on  the  file  of  the 
Court  of  the  Second  Class,  Magistrate,  Tiru- 
yadi)  and  to  direct  stay  of  further  proceed- 
ings in  pursuance  of  the  said  order  of  the 
Court  of  Session  of  the  West  Tanjore  Divi- 
sion, pending  final  orders  on  this  petition. 

Messrs.  V  L  Ethira]  and  K.  P.  Rzman, 
Menon,  for  the  Petitioners. 

Messrs.  Nugent  Grant  and  K.  V.  Srinivasa 
Iyer,  for  the  Respondent. 

The  Public  Prosecutor  on  behalf  of  the 
Crown.  % 

ORDER,— The  order  of  the  Sessions 
Judge  directing  a  re-trial  of  the  accused  in 
this  case  for  the  offence  with  regard  to 
which  they  were  discharged  by  the  Magis- 
trate 13  wrong  There  was  really  no  evi- 
dence on  the  record  with  regard  to  the 
ownership  of  the  tank.  It  appears  from  the 
evidence  of  the  karnam  tljat  it  was  porom- 
boke  and  i$  was  a  poromboke  tank  So 
long  as  the  villagers  agree,  it  is  well-known 
that  the  temple  authorities  or  the  head- 
man of  the  village  lease  out  the  yield  from 
sush  common  resources  and  utilise  the 
same  for  common  purposes.  The  mere  fact, 
therefore,  that  the  fishery  in  this  tank  was 
leased  out  in  previous  years  by  the  temple 
trustee  would  not  in  view  of  the  nature  of 
the  common  practice  go  to  establish  the 
ownership  in  the  tank.  Unless  the  owner- 
ship in  the  tank  is  established,  there  is  no 
question  of  possession  of  the  fish  and  there 
is  a  -fortiori  no  question  of  any  theft  of 
any  fish.  After  all,  I  am  not  at  all  satis- 
fied that  the  accused  in  this  case  did  what 
they  did  dishonestly  and  that  they  did  not 


855 

catch  the  fish  asserting  a  bona  fide  right 
thereto.  I  think  the  criticism  of  the  Ses- 
sions Judge  that  the  word  bona  fide  did 
not  appear  in  the  judgment  of  the  Magis- 
trate is  somewhat  meticulous.  There  is  no 
doubt  whatever  as  to  what  the  Magistrate 
really  meant  to  do.  The  order  of  the  Ses- 
sions Judge  is,  therefore,  set  aside. 

v.  K.  v.  Order  set  aside. 

z.  K. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

avtstotf  APPLICATION  No.  230 

OP  1925. 

November  24,  1925. 
t-— Mr.   Kincaid,  J.  C.,  and 

Mr.  Lobo,  A.  J.  0. 
DWARKA  AND  ANOTHER— APPLICANTS 

versus 

EMPEROR— OPPOSCTE  PAa-rv. 
Criminal  Procedure  Code  (Act  V  of  1898),  ss.  507, 
4*4  —Judgment  of  Appellate  Court,  contents  of. 

A.  judgment  of  an  Appellate  Gourt  other  than  a  High 
C3urt,  must  comply  with  the  provisions  of  s  367  of 
the  Or  P  C  ,  that  is  to  siy,  it  must  contain  the  point 
or  points  for  det  ^rmination  and  the  decision  thereon 
and  the  reasons  for  the  decision 

12am  Lai  Singh  v  Hart  Charan  Ahirt  5  Ind  Gas. 
099,  37  G  194,  11  C  L  J  410,  11  Gr  L  J  343,  relied 
upon  . 

Application  to  revise  an.  order  of  the 
District  Magistrate,  Sukkur,  dated  the  3rd 

August  l«-''r>. 

Mr.  Partabrai  D*  Punwani,  for  the  Ap- 
plicants 

Mr.  T.  G.  Elphinston,  Public  Prosecutor, 
for  the  Crown. 

JUDGMENT.— The  facts  of  this  re- 
visional  application  are  very  simple  and  ore 
shortly  as  follows  :— 

The  complainant  had  one  house  which 
we  may,  for  the  purpose  of  convenience, 
call  house  A  and  he  sued  the  applicant 
to  obtain  possession  of  a  second  house, 
which  for  the  sake  of  convenience,  may  be 
called  house  B  He  got  a  decree  for  house 
B  and  thus  obtained  possessions  of  both 
houses  On  a  subsequent  date  the  witness 
Jethanand  went  to  the  complainant  and 
told  him  that  he  had  observed  .the  appli- 
cants breaking  into  the  house  A.  It  was  6 
o'clock  in  the  morning  and  the  complainant 
with  Jethanand  went  back  to  the  house  A 
and  found  the  present  applicant  No.  1 
standing  at  the  door  of  tho  houao  with  * 


85fl  I8HWAB  DAS  t>.  BMPfltOB,  (92 1  0.  1926] 

stick  in  his  hand  and  the  applicant  No.  2     Singh  v.  Hari  Charan  Ahir  (I),  wherein 

Jenkins,  0.  J.  made  the  following  observa- 


inSide.  They  would  not  allow  the  complain- 
ant to  enter  the  house  with  the  result  that 
he  went  to  the  Third  Class  Magistrate  of 
Sukkur  (Mr.  Qorwalla)  who  convicted  both 
the  applicants  under  s.  448  of  the  Indian 
Penal  Code.  He  sentenced  them  to  pay  a 
fine  of  Rs.  50  each  or  in  default  to  suffer 
15  days1  rigorous  imprisonment.  Rs.  30 
out  of  the  total  amount  were  to  be  award- 
ed as  compensation  to  the  complain- 
ant. Against  this  finding  and  sentence  the 
applicants  appealed  to  the  learned  District 
Magistrate  of  Sukkur  who  confirmed  the 
conviction  and  dismissed  the  appeal. 

Against  this  order  of  the  learned  District 
Magistrate  a  revision  application  has  been 
made  to  this  Court. 

The  learned  District  Magistrate  has  given 
us  the  story  put  forward  by  the  applicants, 
namely,  that  the  complainant  had  given 
them  the  key  of  the  house  A  and  that  it 
was  with  his  permission  that  they  opened 
the  lock  of  the  door  and  entered  it.  The 
learned  District  Magistrate,  however,  has 
observed  that  even  believing  the  defence 
story  he  cannot  but  hold  that  their  action 
amounted  to  a  criminal  trespass.  We  find 
it  very  difficult  to  follow  the  reasoning  of 
the  learned  District  Magistrate.  If  the 
complainant  really  did  give  the  key  of  house 
A  to  the  applicants  and  they  entered  it 
with  his  permission,  it  was  then  impos- 
sible that  they  did  BO  with  intention  to 
commit  an  offence  or  to  intimidate  or  annoy 
the  complainant.  Unfortunately,  we  have 
no  findings  of  fact  in  the  learned  District 
Magistrate's  judgment  and  so  we  are  un- 
able to  say  that  we  will  accept  the  lower 
Appellate  Court's  view  of  the  facfcs,  as  has 

.  long  been  the  practice  of  High  Courts  to 
do.  In  these  circumstances  we  see  no 
alternative  but  to  return  this  case  to  the 
learned  District  Magistrate  and  to  direct 

'  him  to  re-hear  the  appeal  and  to  write  a 
legal  judgment  in  it.  In  this  connection 

,  we  would  specially  draw  his  attention  to 
s.  367  and  s.  424  of  the  Cr  P.  0.  Section 
367  lays  down  that  every  .judgment  shall 
contain  the  point  or  points  for  determina- 
tion and-  the  decision  thereon  and  the 
reasons  for  the  decision.  Section  424 
applies  the  direction  contained  in  this  sec- 
tion to  the  judgment  of  any  Appellate  Court 
other  than  the  High  Court.  We  would 
specially  draw  the  -learned  District  Magis- 
trate's attention  to  the  case  of  Ram  Lai 


tions  :— 

u  It  is  continually  overlooked  by  Courts 
of  Appeal  that  s.  424  of  the  Cr.  P.  C.  pre- 
scribes that  the  rules  contained  in  Chap. 
XXVI,  as  to  the  judgment  of  a  Criminal 
Court  of  Original  Jurisdiction  shall  apply, 
so  far  as  may  be  practicable,  to  the  judg- 
ment of  any  Appellate  Court  other  than 
a  High  Court  ;  and  one  of  the  sections  in 
Ch  XXVI,  is  s  367,  which  prescribes 
that  a  judgment  shall,  among  other  things, 
contain  the  point  or  points  for  determina- 
tion, the  decision  thereon,  and  the  reasons 
for  the  decision/' 

The  learned  District  Magistrate  will  ^no 
doubt  bear  these  remarks  carefully  in  mind 
when  he  re-  writes  the  judgment  in  this  case 
after  re-hearing  the  Pleaders  engaged  in  it. 

The  case  is  sent  back  for  re-hearing  and 
" 


Z.  K. 

(1)  5  Ind  Gas. 
Cr.  L  J  348. 


Case  sent  back. 
999,  37  C.  194,  11  C.  L.  J.  410,  11 


OUDH  CHIEF  COURT. 

MISCELLANEOUS  APPLICATION  No.  656 

OP  1925. 

December  17,  1925. 

Present: — Mr.  Justice  Stuart,  Chief  Judge. 
Baba  ISHWAR  DAS— ACCUSED— 
APPLICANT 
-versus  , 

EMPEROR  THROUGH  Mahant  HAR 
NARAIN  DAS— COMPLAINANT- 
OPPOSITE  PARTY 

Criminal  Procedure,  Code  (Act  V  of  1808),  s.  526— 
Transfer  of  case —District  Magistrate  witness  for 
prosecution— Examination  of  complainant  at  his 
house. 

The  fact  that  the  District  Magistrate  is  cited  as  a 
witness  for  the  prosecution  in  a  trial  before  another 
Magistrate  in  the  District  is  no  ground  for  supposing; 
that  the  accused  will  be  prejudiced  in  his  trial,  so  as 
to  justify  a  transfer  of  the  case 

the  fact  that  a  Magistrate  tiymg  a  case  proposes  to 
conduct  that  portion  of  the  proc3edings  in  which  the 
complainant,  who  is  a  very  old  man  and  for  many 
years  has  nut  left  the  precincts  of  his  residence,  is  a 
witness,  at  the  latter's  residence,  giving  the  accused 
eveiy  opportunity  of  being  represented  and  conduct- 
ing his  case  there,  does  not  call  for  a  transfer  of  tho 
case,  as  the  circumstance  would  in  no  way  prejudice 
the  trial 

Application  under  B.  526,  IGr.  P.  0.,  for 
transferring  the  case  from  the  Court  of  the 
District  Magistrate,  First  Class,  Fyzabad,  to 
some  other  District 
Dr.  J.  Misra,  for  the  Applicant, 
Mr,  N.  N>  (3h,oshal>  R.  B.,  for  the  Grown, 


£92  I.  0.  1928]  JAtAL  ODDltf 

Messrs.  Niamatullah  and  Mohd.  Ismail, 
for  the  Opposite  Party. 

JUDGMENT. — This  is  an  application 
for  transfer.  The  facts  are  these:  The 
applicant  is  a  chela  of  a  Mahant  residing 
in  Hanuman  Garhi,  Ajudhia  Tiie  com- 
plainant is  a  Mahant  unconnected  with  the 
applicant  who  also  resides  in  the  Hanu- 
man Garhi,  Ajudhia.  The  complainant  has 
instituted  criminal  proceedings  against  the 
applicant  on  a  charge  of  defamation  under 
s,  500,  Indian  Penal  Code.  The  case  is  at 
present  in  the  Court  of  Mirza  Mohammad 
Hasan,  Magistrate  of  the  First  Class  in 
Fyzabad.  This  application  prays,  firstly,  that 
the  case  should  be  transferred  not  only  from 
the  Court  of  Mirza  Mohammad  Hasan,  but 
from  the  Fyzabad  District  and  secondly, 
that  if  the  case  is  not  so  transferred  the 
Magistrate  should  be  ordered  to  examine 
the  complainant  in  the  Court  house  at 
Fyzabad  and  not  at  the  complainant's  resi- 
dence in  Ajudhia.  The  applicant  has  had 
the  advantage  of  having  his  application 
argued  by  a  competent  Counsel  who,  I 
understand,  has  been  briefed  specially  for 
the  argument,  and  in  these  circumstances 
it  is  not  likely  that  anything  which  could 
be  put  forward  in  favour  of  the  applicant 
has  been  omitted.  The  first  thing  that 
stands  out  clearly  is  that  there  is  nothing 
made  out  which  can  in  any  way  impugn 
the  impartiality  or  the  competence  of  Mirza 
Mohammad  Hasan  It  is  suggested  that  as 
the  District  Magistrate  of  Fyzabad  may  be 
cited  as  a  witness  in  the  case  the  appli- 
cant will  be  prejudiced  by  having  the  case 
heard  in  the  Fyzabad  Distiict  If  the 
result  of  calling  the  District  Magistrate  as 
a  witness  in  Fyzabad  were  to  prejudice 
the  applicant's  trial  it  would  follow  as  a 
necessary  consequence  that  the  Trying 
Magistrate  was  not  fit  to  be  trusted  and  as 
I  have  every  reason  to  suppose  that  the 
Trying  Magistrate  is  competent,  I  attach  no 
weight  to  this  suggestion  The  second 
point  is  that  the  Trying  Magistrate  pio- 
poses  to  conduct  that  portion  of  pro- 
ceedings in  which  the  complainant  is  a 
witness  at  Hanuman  Garhi  It  is  not  sug- 
.  gested  that  he  is  not  giving  the  applicant 
every  opportunity  of  being  represented  and 
conducting  his  case  at  Hanuman  Garhi. 
The  applicant  resents  this  action  on  the 
part  of  the  Trying  Magistrate  on  the  ground 
that  he  is  thereby  showing  special  favour 
to  the  complainant.  In  the  explanation 
submitted  to  me  by  the  District  Magistrate, 


V.  BMPBROR, 


857 


I  find  that  the  reason  why  the  Trying 
Magistrate  proposes  to  take  this  course  is 
because  the  complainant  is  a  very  old  man 
who  for  many  years  has  never  left  the  pi e- 
cmcts  of  the  Garhi.  I  regard  the  Magis- 
trate's action  in  this  particular  as  showing 
nothing  more  than  consideration  for  a  man 
whom  he  believes  to  be  old  and  infirm,  and 
the  cncumstances  in  no  way  prejudice  the 
applicant's  trial  I  dismiss  this  applica- 
tion for  transfer  and  direct  Mirza  Moham- 
mad Hasan  to  continue  proceedings.  The 
applicant  lehwar  Da<3  will  pay  the  costs  of 
Mahant  Har  Narain  Das  in  the  matter  of  this 
application, 

N  H.  Application  dismissed. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  40,4  OF  1^25 

November  1H,  1925 
Present  — Mr  Justice  Dalai  and 

Mr  Justice  Boys 
JALAL  UDDIN— APPLICANT 

versus 
EMPEROR— OPPOSITE  PARTY 

Criminal  Piocedute  Cork  (Act  V  of  1898),  V  107  (1) 
-U  P  Excise  Act  (IV  of  1010),  s  10  (5)  (f)--Excise 
Inspector,  whether  removable  pom  O//ICP  by  Excise 
Commissioner --Sanction  for  prosecution,  whether 
necessa?  i/ 

An  Excise  Inspootor  in  the  IT  P  is  immovable  from 
his  office  by  tho  Excise  CommisSionei  and  the  sanc- 
tion of  the  Local  Government  is  not,  therefoie,  neces- 
sary under  a  197  (1),  Ci  P  G  ,  for  the  prosecution  of 
such  inspector  [p  8UO,  col  1 J 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Moradabad,  dated  the  6th 
July  1925. 

Mr  R  F  Bahadur ji  (with  him  Messrs. 
NihallChand  and  Kedar  Nath),  for  the 
Applicant 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT.— Jalaluddin  Excise  In- 
spector of  the  Bijnor  District  applied  to 
the  High  Court  in  revision  to  have  his  con- 
viction under  s.  161,  Indian  Penal  Code,  for 
taking  an  illegal  gratification  from  a  liquor 
contractor  set  aside.  The  learned  Judge  to 
whom  the  application  was  presented  refer- 
red the  matter  to  a  Bench  of  two  Judges 
and  also  issued  a  notice  to  Jalaluddin  to 
show  cause  why  the  sentence  passed  on  him 
should  not  be  enhanced.  The  applicant 
was  sentenced  by  a  Magistrate  of  the 
Moradabad  District,  to  whose  Court  the 


858 


JALAL  tlDDlN  V.  BMPflHOB, 


case  was  transferred  from  Bijnor,  to  simple 
imprisonment  for  one  month  and  a  fine  of 
Rs.  5UO  with  three  month's  further  simple 
imprisonment  m  default, 

The  point  raised  in  revision  was  that  the 
prosecution  of  the  applicant  without  the 
sanction  of  the  Local  Government  was  bad 
and  so  the  trial  should  he  set  aside,  The 
applicant  is  an  Excise  Inspector  who  was 
appointed  to  his  post  by  the  Local  Govern- 
ment in  1909.  Under  a  197  (1)  of  the 
Or.  P.  C.  the  sanction  of  the  Local  Govern- 
ment is  necessary  for  the  prosecution  of  any 
public  servant  who  is  not  removeable  from 
his  office  save  by  or  with  the  sanction  of  the 
Local  Government  or  some  higher  authori- 
ty. The  appellant  was  appointed  prior  to 
the  passing  of  the  U.  P.  Excise  &ct  IV  of 
1910.  Under  s  10  (2)  of  that  Act  the  Local 
Government  ig  given  power  by  a  notifica- 
tion to  appoint  an  officer  referred  to  as  the 
Excise  Commissioner  vide  cl.  (a)  and  to 
delegate  to  the  officer  all  or  any  of  its  powers 
under  the  Act  except  the  power  conferred 
by  s.  40  of  the  Act  to  make  rules.  In  pursu- 
ance of  such  authority  the  Local  Govern- 
ment issued  a  notification  under  s  10  '(2) 
(/)  of  the  U.  P.  Excise  Act  on  8th  Sep- 
tember 1924.  It  is  admitted  that  an  Excise 
Commissioner  has  been  duly  appointed 
Under  the  Notification  No  2U5-XIIM1U 
of  8th  September  11)24  (U.  P.  Gazette  of 
13th  September  1924,  page  1249)  the  Local 
Government  has  delegated  to  the  Excise 
Commissioner  among  other  the  following 
powers : 

4  9.  Power  to  appoint  all  officers  of  the 
Excise  Department  below  the  lank  of 
Assistant  Excise  Commissioner,  provided 
that  the  appointment  and  promotion,  re- 
moval or  dismissal  of  Excise  Inspectors  shall 
be  subject  to  the  general  control  of  t^e  Local 
Government. 

"10.  Power  to  censure,  withhold  pro- 
motion frcm,  reduce  1o  a  lower  pest,  sus- 
pend, remove  or  dismiss  all  officers  of  the 
Excise  Department  below  the  rank  of 
Assistant  Excise  Commissioner." 

There  is  a  proviso  added  to  the  powers 
that  in  cases  of  dismissal,  removal  or 
reduction  the  Excise  Commissioner  shall 
follow  the  procedure  laid  down  in  r.  14 
of  the  rules  made  by  the  Secretary  of  State 
under  s.  96-B  (2)  of  the  Government  of  India 
Act.  According  to  this  notification  the 
applicant  who  is  an  Excise  Officer  below 
the  rank  of  Assistant  Excise  Commissioner 
may  be  dismissed  by  the  Excise  Commie- 


sioner.  He  is,  therefore,  removeable  from  his 
office  by  an  authority  lower  than  that  of  the 
Local  Government  and  without  the  sanc- 
tion of  that  Government. 

The  arguments  advanced  by  the  appli- 
cant's learned  Couussl  were  directed  to  the 
following  points  : 

(1)  That   the    applicant    having    been 
appointed  prior  to  the  date  of  the  notifica- 
tion   he  could  not  be  dismissed    by    the 
Excise  Commissioner. 

(2)  That  the  notification  in  so  far  as  it 
gave  power  to  the  Excise  Commissioner  to 
dismiss  the  applicant,  was  ultra  vires  to 
that  extent. 

(3)  That  the  authority  of  the  Excise  Com- 
missioner was  delegated  authority  and  even 
when  he  dismissed  an  Excise    Officer    it 
must  be  taken  as  if  the  dismissal  was  really 
made  by  the  Local  Government  through  the 
agency  of  the  Excise  Commissioner. 

The  authority  No.  10  of  the  notification 
quoted  by  us  above  makes  it  clear  that  the 
Excise  Commissioner  has  been  given  power 
of  dismissal  of  Excise  Officers  below  the 
rank  of  Assistant  Excise  Commissioner 
appointed  even  prior  to  the  date  of  the 
notification.  In  our  opinion  the  applicant 
could  be  dismissed  by  the  Excise  Commis- 
sioner. 

By  reference  to  various  other  notifications 
it  shall  ba  shown  that  the  notification  to  the 
extent  of  the  authority  No.  10  was  not  ultra 
vires.  Reference  was  made  to  the  Govern- 
ment of  India  Act,  s.  96-B  (1)  wherein  it  is 
enacted  "subject  to  the  provisions  of  this 
Act  and  of  rules  made  thereunder  every 
person  in  the  civil  service  of  the  Crown 
in  India  holds  office  during  His  Majes- 
ty's pleasure but  no  person 

in  that  service  may  be  dismissed  by 
any  authority  subordinate  to  that  by 

which  he  was  appointed "It  was 

argued  that  the  applicant  having  been 
appointed  by  the  authority  of  the  Local 
Government  may  not  be  dismissed  by  any 
authority  subordinate  to  the  Local  Govern- 
ment and  if  any  rule  is  made  by  the  Local 
Government  to  that  effect  it  would  be  con- 
trary to  the  provisions  of  s.  i*6-B  (1).  The 
clause,  however,  begins  with  the  words  "Sub- 
ject to  the  provisionsof  this  Act  and  of  rules 
made  thereunder."  Clause  (2)  of  the  same 
section  enacts  that  "The  Secretary  of  State 
in  Council  ma/y  make  zules  for  i  emulating 
the  classification  of  the  civil  services  in 
India,  the  methods  of  their  recruitment,  their 
conditions  of  service,  pay  and  allowances 


(98 1.  0. 1986J  JAUL  UDDINT 

and  discipline  and  conduct.  Such  Rules 
•  may,  to  such  extent  and  in  respect  of  such 
matters  asmay  be  prescribed,  delegate  the 
power  of  making  Kules  to  the  Governor- 
General  in  Council  or  to  Local  Governments, 
or  authorise  the  Indian  Legislature  or  Local 
Legislatures  to  make  laws  regelating  the 
public  cervices." 

Obviously  the  notification  of  the  Local 
Government  referred  to  above  wa>r  made 
under  the  Rules  referred  to  in  cl.  (2).  The 
argument  that  such  rules  can  be  framed 
with  respect  to  officers  to  be  appointed  in 
future  cannot  hold  when  we  consider  the 
provision  to  s  96-B  (2)  which  safeguards  the 
existing  or  recurring  rights  only  of  persons 
appointed  by  the  Secretary  of  State  .prior  to 
tne  commencement  of  the  Government  of 
India  Act,  1919.  There  would  not  have  been 
such  a  proviso  if  it  was  intended  that  the 
Existing  or  recurring  rights  of  all  public 
servants  appointed  prior  to  the  commence- 
ment of  the  Act  were  to  be  retained  In 
the  notification  itself  reference  is  made  to 
rules  made  by  the  Secretary  of  State  in 
s  96-B  (2)  of  the  Act  The  Secretary  of  State 
for  India  has  framed  Rules  under  s  96-B  (2) 
of  the  Government  of  India  Act,  1919,  regulat- 
ing the  classification  of  the  civil  services  in 
India,  their  conditions  of  service,  discipline 
and  conduct.  Those  Rules  also  provide  for 
delegation  of  powers.  They  are  published 
in  the  Gazette  of  India  of  21st  June  1924  at 
page  552  (No.  F  472-11-23).  By  Rule  I  the 
following  classification  is  made  of  officers  of 
the  Local  Government. — 

1.  The  all  India  services, 

2.  The  Provincial  services, 

3.  The  Subordinate  services. 

4.  Officer*  holding  special  posts. 

An  Excise  Inspector  may  come  under  class 
2  or  3.  The  definition  of  Provinahl  ser- 
vices given  in  Rule  III  proves  that  he  comes 
under  class  3  The  Provincial  services  of 
every  Local  Government  are  detailed  in  a 
schedule  to  the  Rules  and  the  schedule  re- 
lating to  the  United  Provinces  includes  an 
Assistant  Excise  Commissioner  and  no 
officer  lower  in  rank  in  that  Department. 
The  applicant,  therefore,  is  a  member  of  the 
subordinate  services,  which  are  defined  in 
Rule  IV  as  consisting  of  all  minor  adminis- 
trative, executive  and  ministerial  posts  to 
which  appointments  are  made  by  the  Local 
Government  or  by  an  authority  subordinate 
to  the  Local  Government.  Under  Rule  XV 
a  Local  Government  13  empowered  to 
delegate  to  any  subordinate  authority  sub- 


v,  EMPEROR,  850 

jeet  to  such  conditions,  if  any,  as  it  may  pre- 
ssribe  any  of  the  powers  conferred  by  Rale 
VIII  in  regard  to  officers  of  the  subordinate 
services  Proviso  to  this  Rule  relates  to  an 
appeal  to  the  Local  Government.  Rule  XII 
lays  down- — 

"  without  prejudice  to  the  provision 
of  any  law  for  the  time  being  in 
force,  the  Local  Government  may  for 
good  or  sufficient  reasons 

(•>)  remove  or 

(6)  dismiss 

any  officer  holding  a  post  in  a         ... 
subordinate  service 

The  Excise  Act  does  not  interfere  with 
the  Local  Government's  power  of  removal 
or  dismissal,  in  fact,  it  gives  such  power 
and  the  power  of  delegation  of  authority 
over  again  We  are  of  opinion,  therefore, 
that  the  authority  No  10  granted  by  the 
notification  is  not  beyond  the  power  of  the 
Local  Government  to  giant 

Coming  to  the  question  of  delegation, 
once  the  Local  Government  has  delegated 
its  power  the  authority  which  actually  re- 
moves the  public  servant  from  office  is  not 
the  authority  of  the  Local  Government  but 
the  authority  to  whom  the  power  is  dele- 
gated. To  take  an  instance,  the  Hon'ble 
Chief  Justice  of  this  Court  has  been  autho- 
rised and  empowered  under  s.  6  of  the 
Letters  Patent  of  this  Court  by  the  Crown 
acting  in  pursuance  of  an  Act  of  Parliament 
to  appoint  officials  of  this  Court  and  to 
dismiss  them  If  the  argument  of  the 
applicant's  learned  Counsel  is  to  prevail  it 
mfay  with  equal  cogency  be  argued  that 
every  official  down  to  an  orderly  peon  of 
this  Cpmfc  is  appointed  and  removed  by 
the  Crown  through  the  agency  of  the  Chief 
Justice  and  for  his  prosecution  under  s. 
161  the  sanction  of  the  Local  Government 
would  be  necessary  We  do  not  think 
that  such  an  argument  would  be  accepted. 
There  is  no  mention  made  in  s  197  (1)  of 
the  Cr.  P.  C.  of  any  delegated  authority. 
Obviously  the  intention  was  to  simplify  the 
law  regarding  sanction  in  the  new  C.  P.  C,, 
and  the  circle  of  public  servants  for  whose 
prosecution  for  bribery  sanction  was  neces- 
sary under  the  previous  Code  has  been  nar- 
rowed. Under  the  former  Code  sanction  of 
some  authority  (other  than  the  Local  Govern- 
ment) to  whom  the  power  was  delegated  by 
the  Local  Government  to  grant  sanction  was 


JALAL  UDDItf  *.  EMPBROR, 


[92 1,  0, 1926] 


necessary  for  the  prosecution  of  certain  pub- 
lic servants,  Any  sanction  for  prosecution 
in  their  cases  is  no  longer  necessary. 

Two  rulings  were  quoted  in  support  of 
the  contention  put  forward  on  behalf  of 
the  applicant  that  the  dismissal  by  the  Ex- 
cise Commissioner  really  meant  dismissal 
by  the  Local  Government.  In  re  Abdul 
Khadir  Saheb  (1),  Emperor  v.  Kkan  Chand 
(2)  The  first  case  which  is  a  Madras  case 
contains  merely  the  opinion  unsupported  by 
reasons  of  a  Single  Judge  of  that  Court. 
With  all  respect  we  do  not  feel  justified  in 
following  it.  In  the  second  case  which 
is  of  the  Lahore  High  Court  and  of  date 
24th  March  1922,  no  rule  had  been  framed 
to  provide  for  cases  of  officers  appointed 
previous  to  the  date  of  the  notification, 
We  have  already  indicated  that  the  notifi- 
cation of  the  Local  Government  in  the  pre- 
sent case  provides  for  the  dismissal  of 
Excise  Officers  appointed  prior  to  the  date 
of  the  notification.  The  ruling  of  the 
Lahore  High  Court,  therefore,  has  no  ap- 
plication here. 

For  these  reasons  we  decide  that  no  sanc- 
tion was  necessary  for  the  prosecution  of 
the  applicant  and  that  his  trial  in  the 
Court  of  the  Magistrate  was  a  legal  trial. 

We  now  come  to  the  facts  of  the  case. 
As  notice  has  been  issued  to  the  applicant 
to  show  cause  why  the  sentence  pissed  on 
him  should  not  be  enhanced,  he  is  entitled 
under  the  provisions  of  s.  439  (6)  to  show 
cause  against  his  conviction.  We  have 
been  taken  through  the  entire  evidence  on 
the  record.  We  have  studied  it  and  can 
discover  no  reason  to  disagree  with  the 
judgment  of  the  learned  Sessions  Judge  in 
appeal.  The  evidence  does  not  rest  here 
merely  on  the  testimony  of  witnesses  who 
depose  to  the  paying  of  the  bribe.  There 
have  been  other  incidents  in  the  case  which 
convince  us  of  tta  appellant's  guilt.  The 
complainant  Kailash  Chander  was  a  con- 
tractor for  the  retail  sale  of  liquor  at  a 
shop  in  village  Jhalu.  There  was  a  com- 
plaint made  againflt  him  to  the  Police  by 
one  Karhira  c/tawaronthe  14th  May  1924 
and  ;the  applicant  Excise  Inspector  went 
to  the  spot  to  hold  an  inquiry  on  15th  June. 
It  appears  to  be  the  practice  of  the  In- 
spector to  receive  certain  sums  described 


(11  33  Ind.  Cas.  648;  (1916)  1  M.  W.  N.  384;  17  Or. 
L  /  168. 

(2)  72  Ind.  Cas.  523;  A.  I.  R.  1922  Lah,  337;  24  Or. 
L,  J,  411. 


as  an  annual  fee  from,  the  contractors  in 
order  to  save  them  from  petty  prosecu- 
tions under  the  Excise  Act.  With  this 
lever  of  a  complaint  the  Excise  Inspector 
demanded  his  annual  f^e  from  Kailash 
Ohander.  His  demand  was  of  Rs.  200  and 
it  was  finally  settled  at  Rs.  J60.  Kailash 
Chander  stated  that  on  June  lOth  he  paid 
Rs.  60  to  the  Inspector  at  his  house  at 
Bijnor,  Two  witnesses  to  the  payment  were 
produced,  Baideo  Singh  the  contractor's 
uncle,  who  also  lias  a  drug  shop  four  miles 
away  from  Jhalu  at  Haldaur  and  Dalchand. 
Apparently  the  applicant  was  not  satisfied 
with  this  part-payment  and  Kailash  Chander 
had  not  the  means  to  pay  more.  The 
Inspector  kept  on  demanding  the  balance. 
In  July  there  was  another  complaint  against 
Kailash  Chander  brought  by  one  Lallu  and 
Kailash  Chander  was  sentenced  lo  a  short 
term  of  imprisonment  but  acquitted  on 
appeal.  He  believed  that  the  Inspector 
was  at  the  bottom  oE  this  complaint.  While 
he  was  attending  to  his  defence  in  this 
cage  the  Inspector  reported  his  absence 
frohi  his  liquor  shop  and  had  him  prose- 
cuted in  the  Court  of  the  Excise  Officer, 
Thia  case  was  fixed  for  hearing  on  the  21th 
September  1924.  The  incidents  of  that 
date'  and  the  following  day  the  25th  Sep- 
tember ar-3  important.  The  Magistrate 
Thaku);  Plml  Singh  has  deposed  that  on 
the  21th  September  the  applicant  Excise 
Inspector ^  appeared  in  the  forenoon  and 
stated  that  Kailash  Chander  accused  of 
that  case  and  the  prosecution  witnesses 
were  absent  and  that  the  hearing  had  better 
be  postponed.  The  Magistrate  had  to  at- 
tend to  treasury  work  and  at  about  1-30 
p.  M.  when  he  took  up  the  case  and  had 
Kailash  Chander  called,  Kailash  Chander 
appeared  in  Court.  The  Magistrate  then  in- 
quired of  the  Inspector  why  he  had  given 
wrong  information  about  the  accused  and 
the  witnesses.  There  is  no  evidence  that 
the  Inspector  at  the  time  gave  any  reply. 
Kailash  Chander  explained  that  he  had 
been  present  since  the  forenoon  but  that 
there  had  been  a  talk  between  him  and  the 
Inspector  of  a  compromise  and  withdrawal 
of  the  charge  Thakur  Phul  Singh  has  slated 
that  the  same  day  he  heard  in  the  Treasury 
Office  that  the  Excise  inspector's  orderly 
had  taken  a  currency  note  for  Us.  100  to 
be  cashed  but  that  before  it  could  be  cashed 
the  case  had  been  called  and  the  peon  was 
called  back  by  the  Excise  Inspector, 
Babu  Lai  Assistant  Treasurer  had  deposed 


[92 1.  0. 1926] 


JALAL  UDt)IN  V  BMPEFOfc. 


to  this  incident  of  a  currency  note  being 
brought  to  the  Treasury  for  encashment. 
Kailash  Chmder's story  is  that  the  Excise 
Inspector  had  consented  to  refund  the  sum 
o£  Rs  60  and  it  was  on  this  account  that 
the  currency  note  of  Rs  100  was  taken  to 
the  Treasury  to  be  cashed.  It  is  certain 
that  the  note  was  taken  to  the  Treasury 
The  appellant  did  not  explain  the  leafeon 
for  this  proposed  encashment  of  the  note 
but  falsely  denied  having  sent  any  note  to 
the  Treasury  that  day  This  denial  and 
the  absence  of  explanation,  which  it  was 
the  duty  of  the  appellant  to  give  under  the 
circumstances  of  the  present  case,  support 
the  testimony  of  Kailash  Ohander.  On  the 
25th  September  the  excise  case  was  taken 
up  again  and  when  the  statement  of  Kai- 
lash Ohander  was  recorded  as  an  accused 
person  he  gave  the  reason  for  Ins  prosecu- 
tion to  be  his  inability  to  pay  the  balarce 
of  the  bribe  of  Rs  160  to  the  Inspector 

There  is  no  evidence  to  show,  nor  was 
it  alleged  befoie  us,  that  when  this  chaige 
was  openly  made  by  Kailash  Clmnder  the 
Inspector  gave  vent  to  any  explanation  or 
denied  the  charge  immediately,  as  any 
honest  man  would  have  done  After  the 
statement  of  Kailash  Chander  was  recorded 
the  case  was  postponed  for  defence  evidence 
The  parties  to  the  case  went  out  and  there 
was  a  quarrel  between  the  Inspector  and 
Kailash  Ohander,  who  from  words  came  to 
blows  and  closed  in  with  each  other  The 
witnesses  for  the  prosecution  support 
Kailash  Chander's  account  that  on  going 
out  of  the  Court  he  again  demanded  the 
refund  of  Ks*60  whereupon  the  Sub-Inspec- 
tor promised  to  pay  it  at  his  house  and  he 
retorted  that  he  was  constantly  being  put 
off  by  alternative  promises  of  payment  in 
Court  or  afc  home  The  two  witnesses  Har- 
kishen  Das  and  Mathura  who  are  men  of 
respectable  position  in  life  have  supported 
Kailash  Chander's  story.  On  behalf  of  the 
defence  certain  Pleaders  came  forward  and 
deposed  that  at  the  time  of  the  quarrel 
there  was  no  mention  of  a  bribe  and  Kailash 
Chan  dor  simply  threatened  to  settle  with 
the  Inspector  before  he  himself  was  punish- 
ed by  Court.  During  the  quarrel  another 
Deputy  Magistrate  B.  Budh  Sen  appeared 
on  the  scene  and  to  him  also  Kailash  Chan- 
der spoke  about  the  bribe  and  the  Inspec- 
tor's refusal  to  refund  the  sum  of  Rs.  60. 

We  have  already  made  reference  to  the 
absence  of  any  explanation  of  the  currency 
note  having  been  taken  to  the  Treasury. 


In  the  matter  of  the  quarrel  on  the  25th 
also,  the  probability  is  all  in  favour  of  the 
prosecution.  It  is  certain  that  in  the  Court 
of  Thakur  Phul  Singh  the  complainant 
Kailash  Chander  charged  the  Sub-Inspec- 
tor with  taking  a  bribe  and  as  soon  as  B. 
Budh  Sen,  anothei  Magistrate,  appeared 
outside  the  Court  during  the  quarrel  be- 
tween Kailash  Chander  and  the  Inspector 
the  former  again  made  mention  of  the 
bribe.  We,  therefore,  lefuse  to  believe  the 
defence  witnesses  who  state  that  during  the 
intervening  quanel  between  the  Inspector 
arid  the  contractor  no  reference  whatsoever 
was  made  to  the  taking  of  the  bribe  by  the 
Inspector  In  our  opinion  the  defence 
witnesses  are  purposely  concealing  the 
words  that  passed  between  the  parties  with 
respect  to  the  bribe 

It  was  argued  that  Baldeo  Singh  and  Dal- 
chand  who  depose  to  the  actual  payment  of 
the biibe  are  unreliable  witnesses  because 
Baldeo  Singh  is  uncle  of  the  complainant 
and  the  other  witness  Dal  Chand  was  not 
mentioned  as  a  witness  by  the  complainant 
when  his  statement  was  first  recorded  on 
the  4th  October.  As  rightly  pointed  out  by 
the  learned  Sessions  Judge,  whatever 
value  may  be  attached  to  this  testimony 
standing  by  itself,  the  incidents  of  the  24th 
and  25th  September  supported  by  other 
incidents  can  leave  no  doubt  in  any  one's 
mind  as  to  the  payment  by  Kailash  Chan- 
der to  the  applicant  of  Rs.  60  in  June 
1924. 

Some  contradiction  was  pointed  out  be- 
tween the  complaint  in  which  it  was  stated 
that  the  bribe  was  paid  in  Jhalu  and  the 
complainant's  statement  on  oath  where  he 
stated  that  the  bribe  was  paid  in  Bijnor. 
The  complaint,  however,  was  not  written  by 
the  complainant  himself  and  it  is  evident 
that  the  petition  writer  wrote  it  without 
carefully  understanding  the  allegations  of 
the  complainant.  We  are  satisfied  that  the 
appellant  was  rightly  convicted. 

We  have  also  to  consider  the  question 
whether  the  sentence  should  be  enhanced. 
The  accused  has  been  sentenced  under  s. 
161  of  the  Indian  Penal  Code  to  one  month's 
simple  imprisonment  and  a  fine  of  Rs.  500 
or  in  default  three  months*  simple  imprison- 
ment. When  he  applied  in  revision  against 
this  conviction  and  sentence  the  matter  came 
before  Mr.  Justice  Kanhaiya  Lai  who  on 
the  31st  August  concluded  his  order  as 
follows  :— 


In  re  ONDASAMI 


[9210.1026] 


"  If  the  facts  found  by  the  Courts  below 
are  true  the  sentence  passed  on  the  accused 
also  requires  to  be  examined  with  a  view 
to  determine  its  adequacy  lo  meet  the  case 
of  a  systematic  or  annual  levy  alleged  in 
this  case,  Let  the  case  be,  therefore,  referred 
to  a  Bench  of  two  Judges  and  let  notice 
also  go  to  the  accused  to  show  cause  why 
the  sentence  should  not  be  enhanced  in 
case  his  revision  is  rejected.11 

The  learned  (Sessions  Judge,  when  hear- 
ing the  appeal,  wa6  invited,  as  we  are  in- 
formed, to  refer  the  case  to  this  Court  for 
enhancement  of  sentence.  He  concluded 
his  judgment  as  follows  . — 

"I  am  not  inclined  to  press  for  an  enhance- 
ment of  sentence.  Imprisonment  even  for 
one  month  is  a  very  serious  matter  for  a 
man  in  the  position  of,  an  Excise  Inspector 
and  the  expenses  of  the  cfcse  in  addition  to 
the  fine  will  probably  ruin  him.  His  con- 
viction of  itself  is  enough  to  debar  him  from 
further  Government  service.  I,  therefore, 
dismiss  the  appeal  and  uphold  the  convic- 
tion and  sentence,? 

We  appreciate  the  considerations  stated 
by  the  learned  Sessions  Judge  but  there 
can  be  no  question  as  to  the  gravity  of  the 
offence  committed  by  the  accused.  It  is 
obvious  that  this  type  of  offence  can  be 
very  easily  committed  without  much  risk 
of  exposure  in  view  of  the  great  unwilling- 
ness of  victims  to  run  the  risk  of  failing  to 
establish  a  perfectly  true  charge  if  they 
make  it.  In  the  present  case  if  the  evidence 
is  to  be  believed  and  we  have  said  that  we 
believe  it,  it  is  clear  that  the  incident  which 
has  been  the  subject  of  the  present  trial  was 
not  a  solitary  lapse  on  the  part  of  the  ac- 
cused. He  had  established  a  regular  system 
by  which  he  levied  a  toll  annually  upon 
these  licence-holders.  Believing  this  evi- 
dence as  we  do,  we  find  ourselves  in  agree- 
ment with  Mr.  Justice  Kanhaiya  Lai  that 
the  sentence  inflicted  was  wholly  inade- 
quate to  the  offence. 

We,  therefore,  while  dismissing  the  appli- 
cation in  revision  enhance  the  sentence  of 
one    month's    simple   imprisonment  to  a 
sentence  of  six  months'  rigorous  imprison- 
ment   and    maintain-  the      fine    and    the 
alternative  sentence  in  de/ault  of   payment 
of  the  fine.    The  applicant  will  surrender 
to  his  bail, 
z,  K,  Sentance  enhanced. 


MADRAS  HIGH  COURT. 

CRIMINAL  REVISION  CASE  No.  431  OP  1925. 
(CRIMINAL  REVISION  PETITION  No.  357 

OP  1925. 
July  22,  1925. 

Present:— Mr.  Justice  Jackson. 

In  re  KANDA8AMI  CHETTY 

— PETITIONER. 

Criminal  Procedure  Code  (Act  V  of  1S98),  8, 1>8S~ 
"Means",  what  are— Husband,  unemployed  and  without 
property,  liability  o/,  to  maintain  wife — Remedyt 
nature  of. 

The  word  'means*  in  s.  488  of  the  Cr  P.  0.  does 
not  signify  only  visible  means  such  as  real  property 
or  definite  employment.  If  a  man  is  healthy  and 
able-bodied,  he  must  be  taken  to  have  the  "means"  to 
support  his  wife 

Section  488  of  the  Cr.  P.  0.  provides  a  speedy 
remedy  and  safeguards  a  deserted  wife  or  child  from 
starvation;  but  when  other  issues  are  raised,  they 
ought  to  be  settled  in  the  Civil  Courts  to  which  persons 
aggrieved  by  orders  under  the  section  ought  to  take 
then  case 

Petition,  under  ss.  435  and  433  of  the  Or. 
P.  0.,  1898,  praying  the  High  Court  to  revise 
an  order  of  the  Court  of  the  Sub-Divisional 
Magistrate,  Pollachi  Division,  dated  the  28th 
Apiil  1925. 

Mr.  S.  T.  Srinivasagopalachari,  for  the 
Petitioner. 

ORDER.— Petitioner  seeks  to  revise  the 
order  of  the  Sub-Divisional  Magistrate, 
Pollachi,  under  s.  4K8  of  the  Cr.  P.  C ,  by 
which  he  is  directed  to  pay  rupees  ten 
(Rs.  10)  per  mensem  as  maintenance  to  his 
first  wife.  The  order  contains  no  clear  issues 
or  findings  and  the  Magistrate  should 
understand  that  vituperation  adds  nothing 
to  the  force  of  a  judicial  pronouncement. 

Apparently  upon  the  evidence  of  counter- 
petitioner  and  her  thiee  witnesses,  the 
Magistrate  finds  that  she  was  driven  out  of 
her  home,  not  allowed  to  come  back,  and 
refused  maintenance,  He  rejects  the  defence 
evidence  to  the  contrary  because  he  thinks 
the  plea  of  enmity  "rather  mamool"  mean- 
ing presumably  that  it  is  a  false  plea  often 
advanced.  He  finds  that  though  slightly 
lame  the  counter-petitioner  is  able  to  work 
and  accordingly  he  orders  rupees  ten  (Rs.  10) 
per  mensem,  not  an  extravagant  rate  for 
people  in  decent  circumstances.  He  also 
hopes  that  the  family  will  assist  the  husband 
to  find  the  money. 

Of  course,  maintenance  can  only  be  levied 
from  the  husband,  and  in  expressing  this 
hope  the  Magistrate  passes  no  order  against 
the  husband's  family.  The  point  most 
strenuously  pressed  by  petitioner  is  that 
since  the  husband  is  only  19  year* 


MULAI  RAT  D.  EMPEROR. 


[92  I.  0,  1926] 

old  and  unemployed,  he  has  no  means  to 
support  his  wife.  I  do  not  take  "means"  in 
s.  488  of  the  Or  P.  C  ,  to  signify  only  visible 
means  such  as  real  property  or  definite  em- 
ployment. If  a  man  is  healthy  and  able- 
bodiedtia  must  be  taken  to  have  the  means 
to  supp  ort  his  wife.  I,  therefore,  find  no 
absolute  ground  for  interference ;  but  I 
agree  with  the  petitioner  that  this  order  is 
not  altogether  satisfactory.  It  should  have 
been  more  cleat  ly  set  forth  whether  the 
wife  has  merely  left  the  house  upon  the 
arrival  of  the  second  wife  <^r  has  been  ac- 
tually driven  out  If  petitioner's  remedy 
were  concluded,  there  might  be  reason  for 
re-opening  the  matter  But  it  is  obvious 
from  the  Htatute  itself  that  persons  aggriev- 
ed by  these  magisterial  orders  are  expected 
to  take  their  case  to  the  Civil  Courts  Sec- 
tion 488  of  the  Cr  P  0  ,  provides  a  speedy 
remedy  and  safeguards  a  deserted  wife  or 
child  from  starvation,  but  when  other  issues 
are  raised,  they  should  be  settled  in  the 
Civil  Courts,  and  nothing  is  to  be  gained 
by  protracted  litigation  in  the  Criminal 
Courts  Doubtless  it  is  with  that  intention 
that  no  appeal  has  been  allowed  from  orders 
under  s.  4£8. 

Therefore,  I  decline  to  interfere  and  ad- 
mission is  refused. 


863 


v.  N.  v. 

Z.  K. 


Petition  dismissed. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  592  OP  1925. 

December  7,  1925. 

Present  *— Mr.  Justice  Sulaiman. 

MULAI  KAI — ACCUSED — APPLICANT 

versus 

EMPEROR— OPPOSITE  PARTY. 
Pwal  Code,    (Act  KLV  of  1860),  ss.  fa  WO— Threat 
to  institute  civil  suit,  whether  threat  of  "injury". 

A  threat  to  institute  a  civil  suit  for  a  declaration 
of  right  against  any  person  who  is  objecting  to  such 
right  does  not  amount  to  a  threat  of  "injury"  within 
the  meaning  of  s  190  of  the  Penal  Code,  [p  861, 
col.  2  ] 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Benares,  dated  the  18th 
July  1S)25. 

Mr.  P.  L.  Banerji,  for  the  Applicant. 
The  Assistant  Government  Advocate,  for 
the  Crown, 

JUDGMENT.— This  is  a  criminal  revi- 
sion from  an  order  convicting  the  accused 
under  s.  190  of  the  Indian  Penal  Code  and 
sentencing  him  to  a  fine  of  Ks.  55* 


The    applicant    ia  the    mukhtar-am   of 
Musammat  Daulata  Kunwar  who  had  con- 
structed a  temple  inside  her  house,   instal- 
led idols  therein  and   performed  puja  by 
sounding  conches    in    the    evening     The 
Muhammadans  of  the  mohalla  objected  to 
this  and  approached  the  District  Magistrate 
who  deputed  a  joint  Magistrate  to  inspect 
the  locality     The  learned  Magistrate  being 
satisfied  that  there  was  an  apprehension   of 
some  dispute  passed   an  order  under  s.  144 
of  the  Cr.  P.  C  on  the  4th  of  February  1925 
directing  Musammat    Daulata  Kunwar  to 
keep  all    the  doors  of  the    room  in  which 
the  idols  were  kept  closed  and  bolted,   and 
to  abstain  from   making  any  musical  or 
other  noise  during  a  short  period.    After 
this     the     District    Magistrate  must  have 
been   trying    to    get    the    matter    settled 
amicably  if  possible.     On  the  25th  of  Feb- 
ruary 1925  a  large  number  of  notices  includ- 
ing one  to  Hafizullah  were  sent  out  by  the 
applicant    under   the  name    of  Musammat 
Daulata  Kunwar.    As  the  notice  to  Hafizul- 
lah  is  the  real  basis  of  this  prosecution   it 
is  necessary  to  set  forth    its  terms  in  some 
detail.     Its   purport    was     as     follows  — 
"You    along    with    others  drew  the  atten- 
tion of  the    District    Magistrate  and    got 
him   to    depute    the   joint    Magistrate    to 
inspect  the  locality  and  convinced  him  that 
there  was  a  fear  of  religious  dispute  which 
induced  him  to  pass  an  order  under  s.  144 
of  the  Cr.  P.    C.    You  are,  therefore,  given 
this  notice  that  within  one  week    oi  this 
date     you    should     in     writing     express 
your  dissociation  from  the    said  acts  and 
give  it  in  writing  that  you  have  no  con- 
nection or  concern  with  those  acts  and  that 
you  dp  not  desire  to  interfere    with    the 
worship  which  1   perform    in    accordance 
with  Hindu  dharamsastras.    If  you  fail  to 
do  so  then  you   also  will  be  impleaded  in 
the  array  of  the  defendants  in  the  civil  suit 
which  1  am  about  to  bring,"    The    Courts 
below  have  held  that  the  threat  contained 
in  the    notice    amounted  to  a  threat  of 
injury  to  a  person  for  the  purpose  of  in- 
ducing that  person  to  refrain  or  desist  from 
making  a  legal  application  for  protection 
against     any  injury   to  any  public  serv- 
ant   legally  empowered    as    such  to   give 
such    protection.    The   view  taken  by  the 
Courts    below    is  that    the  real  intention 
of  the  accused  was  to  make   the   complain^ 
ant     desist    from    approaching    the   Dis- 
trict Magistrate    any  further.    Perhaps  it 
would  be  best  to  quote  the  words   of  th, 


864 

Appellate  Court  itself.  "The  notice  in  ques- 
tion goes  beyond  the  legitimate  require- 
ments of  the  case,  and  leading  the  entire 
notice  and  considering  other  ciicumstances 
attending  the  matter  in  dispute  the  impres- 
sion which  ono  gets  is  that  the  notice 
was  by  way  of  a  threat  of  a  civil  suit 
against  the  person  to  whom  the  notice  was 
addressed  by  which  it  was  intended  that  he 
should  refrain  from  approaching  the  District 
Magistrate  about  the  matter  and  to  seek 
his  protection.11 

When  the  alleged  threat  of  injury  is 
contained  in  a  written  notice  it  is  very 
doubtful  how  far  the  Courts  are  entitl- 
ed to  go  outside  the  language  of  that 
notice  in  order  to  infer  an  intention  which 
does  not  appear  from  that  writing.  The 
notice  does  not  ask  the  addressee  to  refrain 
from  approaching  the  District  Magistrate 
any  longer.  Nor  does  it  refer  to  any  pend- 
ing dispute  The  Courts  below,  however, 
have  taken  the  true  intention  to  have  been 
to  make  the  complainant  refrain  from  ap- 
proaching the  magisterial  authorities.  As- 
suming for  the  sake  of  argument  that  it 
was  open  to  the  Courts  below  to  infer  this 
intention,  the  question  still  remains  whether 
the  threat  of  the  institution  of  a  civil  suit 
is  an  injury  within  the  meaning  of  s.  190  of 
the  Indian  Penal  Code. 

It  is  noteworthy  that  the  addressee  was 
called  upon  to  make  three  statements  in 
writing  (1)  dissociating  himself  from  the 
previous  acts,  (2)  stating  that  he  had  no 
concern  or  connection  with  them  and  (3) 
expressing  his  desire  not  to  interfere  with 
the  worship.  Unless  the  addressee  had  on 
the  previous  occasion  made  an  objection 
to  the  worship  or  taken  any  part  in  approach- 
ing the  authorities  or  unless  he  was 
denying  her  right  to  perform  the  worship, 
Musammat  Daulata  Kunwar  would  have  no 
cause  of  action  for  maintaining  a  civil  suit 
against  him,  Before,  therefore,  the  ad- 
dressee was^  to  be  impleaded  in  a  civil  suit 
recklessly  it  was  essential  to  know  for 
certain  whether  there  was  any  cause  of 
action  against  him.  The  notice  mentions 
in  express  terms  that  if  he  does  not  comply 
with  the  request  of  Musammat  Daulata 
Kunwar  he  would  be  impleaded  in  the  civil 
suit. 

The  non-compliance  with  the  request 
contained  in  the  notice  would  have  involved 
Hafizullah  being  impleaded  in  the  suit. 
Does  the  institution  of  a  civil  suit  against 
a  person  amount  to  an  injury  within  the 


MULAI  RAI  V,  EMPEROR. 


[te  i.  o. 


meaning  of  s.  190?    The  word 'injury1  has 
been  defined  in  s.  44  of   the  Indian    Penal 
Codeas  denoting  any  harm  whatever  illegal- 
ly caused   to  any   person  in  body,    mind 
reputation  or  property.    Musammat  Daulata 
Kunwar  had  a  right  to  bring  a  civil  suit 
for  a  declaiation  of  her  right  to  maintain  the 
temple  and  perform  the  worship.    Whether 
she    would    ultimately    succeed  or  not  is 
quite  a  different  matter,  but  she  had  a  right 
to  maintain  a  suit  against  any  person  who 
was  objecting  to  her  right.  Can  the  institu- 
tion of  a  civil  suit    against  a  person    who 
was  so  objecting  be  called  a  harm  illegally 
caused?    The    recourse  to  a    Civil  Court 
cannot  amount  to  causing  an  illegal  harm. 
Under  certain  circumstances  a  false  com- 
plain   against    a    person  may    be    an   il- 
legally caused  harm.    It  may  also  be  pos- 
sible to  conceive  of  cases  where  a    totally 
false  suit,    vexatious  and    frivolous    in  its 
nature  intended    to  harass    a  person,    may 
amount  to    a    harm  illegally  caused.    But 
in  this  particular  case  the   institution  of  a 
civil  suit  for   a  mere    declaration  of  right 
against  any  person    who  was  objecting  to 
that  right  cannot    be    said   to   be  a  harm 
illegally  caused   in  bod}r,  mind    reputation 
or  property.    The  complainant  Hafizullah 
was  exaimed  in  this  case  and  from  his  evi- 
dence it  appears  that  he  himself  had  done 
nothing  in  particular  before  the  order  under 
s.  144  was  passed.    He  has  stated  that  he 
became    surprised   as  to    how    notice  was 
served  on  him.    He  had  no  acquaintance 
with  Musammat  Daulata  Kunwar,    He  had 
never  complained   about    the   temple  and 
never  wanted  before  nor  did  want  then  to 
do  anything  against  the  Musammat's  temple. 
He  had  not  asked  any  one  to  do  anything 
in  respect  of  the  notice    he  had  received 
and  he  said  that  he  did  not  reply  to  the 
notice  as  he  thought    that    the  notice  had 
been  sent  to  him  by  mistake.    These  state- 
ments make  it  quite  clear  that  there  vias 
nothing  personal  in  sending  the  notice  to 
Hafizullah.    The  accused's  version  that  the 
object  was  to  ascertain  whether  Hafizullah 
was  objecting  to  her  right  in  order  to  make 
up  one's  mind  whether  or  not  he  should  be 
impleaded  in  the  civil  suit,  appears   to  be 
not  unfounded.    I    accordingly  allow  this 
revision   and  setting  aside  the  conviction 
and  the  sentence  acquit  the  accused  of  the 
charge  and  direct  that  the  fine,    if  paid,  be 
refunded. 

z.  K,  Revision  allowed, 


[9$  I.  0. 1926] 


AJO  MIAN  V.  BMPfcROfe. 


865 


PATNA  HIGH  COURT. 

CRIMINAL  REVISION  No.  97  OP  1925. 
April  15, 1925. 

Present: — Justice  Sir  John  Bucknill, 
KTM  and  Mr.  Justice  Macpherson. 
AJO  MIAN  AND  OTHERS— ACCUSED- 
PETITIONERS 

versus 

EMPEROR— OPPOSITE  PARTY. 
Criminal  Procedure  Code  (Act  V  of  1898),  ss  257t 
JtS9  -Opportunity  given  to  accused  to  c>  oss-eiamine 
prosecution  witness— -Witness,  re-call  of,  at  request 
of  accused— Refusal  of  Magistrate  to  re-call  witness 
— Discretion — Revision — High  Court,  interference  by. 

While  a  Magistrate  is  bound  under  a  257  (1)  of  the 
Or.  P.  0  to  issue  process  on  the  application  of  an 
accused  person  who  lias  enteied  on  las  defence  for 
compelling  the  attendance  of  a  witness  for  the  puipose 
of  examination  or  cross-examination  (save  111  certain 
stated  circumstances  which  the  Magistrate  must  find 
and  must  set  forth  in  writing),  the  proviso  to  that 
section  on  the  othei  hand  definitely  prohibits  the 
Magistrate  fi am  issuing  such  process,  if  the  accused 
has  cross-examined  or  had  the  opportunity  of  cross- 
examining  the  witness  after  the  charge  was  framed, 
unless  the  Magistiate  is  satisfied  that  such  attendance 
is  necessary  foi  the  puiposes  of  justice,  that  is  to  say, 
unless  he  is  convinced  of  the  existence  of  the  strongest 
possible  grounds  for  disie  gar  ding  the  piohibition. 
The  exception  to  the  prohibition  must  not  he  read  as 
swallowing  up  the  prohibition  or  the  whole  proviso  as 
enjoining  that  the  Magistiate  shall  issue  process  if  he 
is  not  satisfied  that  the  attendance  of  the  witness  is 
unnecessary  for  the  ends  of  justice,  or  if  he  is  not 
satisfied  that  (as  m  the  case  of  the  witnesses  not 
covered  by  the  pioviso)  the  application  is  made  for 
the  purpose  of  vexation  or  delay  or  for  defeating  the 
ends  of  justice  On  the  contrary  the  prohibition  may 
not  be  disregarded  unless  in  the  opinion  of  the  Magis- 
trate the  puiposes  of  justice  not  meiely  wanant  but 
demand  such  disregard  It  is  not  incumbent  upon 
the  Magistiate  to  record  in  wilting  his  leasons  for 
not  being  satisfied  that  the  attendance  of  a  >\  itness 
is  necessary  for  the  purposes  of  justice  [p  869, 
cols  1  &  2  ] 

If  a  good  case  is  made  out  that  the  Magistrate's 
refusal  to  summon  the  witness  was  outside  the  limits 
of  a  leasoiidble  discretion  the  High  Couit  would  mtei- 
fere  with  the  exercise  of  such  discretion,  but  the  posi- 
tion must  be  most  clearly  established  that  the  Magis- 
trate's decision  was  unreasonable  and  impioper  befoie 
the  interference  of  the  High  Couit  could  propeily  be 
invoked  or  expected  [p  867,  col  1  ] 

Criminal  revision  fiom  the  decision,  of 
the  Sessions  Judge,  Bhagalpur,  modifying 
that  of  the  Magistrate,  First  Class,  Bhagal- 
pur, dated  the  *3rd  December  li)24. 

Sir  Ali  Imam  and  Mr,  S.  A.  Sani,  for 
the  Petitioners. 

The  Assistant  Government  Advocate,  for 
the  Crown, 

JUDGMENT. 

Bucknill,  J,— This  was  an  application 
in  criminal  revisional  jurisdiction  made 
on  behalf  of  six  Muhammadans,  The  first 
was  found  guilty  by  a  Magistrate  of  the 

90 


First  Class  at    Bhagalpur,   on    the    23rd 
December  last    of  an  offence    punishable 
under  s.  326,  Indian  Penal  Code  (causing 
grievous  hurt  with  a  dangerous  weapon) ; 
he  was    sentenced  to  one  year's  rigorous 
imprisonment.    He  was  also  found  guilty 
of  an    offence    punishable  under   s.    148, 
Indian  Penal  Code    (rioting  armed  with  a 
deadly  weapon).    For  this  offence  he  was 
again  sentenced  to  one  year's  rigorous  im- 
prisonment,   the    sentences  were    to   run 
consecutively.      The  other  five  applicants 
were  all  found  guilty,  firstly,  of  an  offence 
punishable    under    s.    147,  Indian    Penal 
Code  (riot)  and,  secondly,    of    an  offence 
punishable  under  the  combined  provisions 
of  as.  326  and  149,  Indian  Penal  Code,  that 
is  to  say,  of  causing  grievous  hurt  with 
deadly  weapons    whilst   members    of    an 
unlawful  assembly.    The  object  of  the  un- 
lawful assembly  was  stated  to  be  to  assault 
Hindus.     The  second  applicant  was  in  res- 
pect of  each  of  these    offences    sentenced 
to  undergo  rigorous  imprisonment  for  one 
year ;  but  the  sentences  have  been  ordered 
in  bis  case  to  run  concurrently.    The  other 
applicants  were  sentenced  to  six  months' 
rigorous  imprisonment  in  respect  of  each 
offence  and  in  their  cases  also  their  sen- 
tences were  ordered  to  be  concurrent. 

On  appeal  to  the  Sessions  Judge  of 
Bhagalpur  the  conviction  of  the  first  appli- 
cant was  set  aside  in  so  far  as  the  charge 
against  him  under  s.  326  was  concerned* 
His  conviction  and  sentence,  however,  under 
s.  148  was  upheld.  The  convictions  and 
sentences  of  the  other  applicants  under 
s  147  were  also  upheld,  but,  although  the 
convictions  under  the  combined  provisions 
of  ss.  326  and  149  were  upheld,  the  sentences 
were  set  aside  in  view  of  the  fact  that  double 
sentences  in  respect  of  such  cognate  offences 
were  not  regarded  by  the  Sessions  Judge  as 
being  permissible, 

The  circumstances  which  gave  rise  to  the 
prosecution  were  very  unfortunate  and  were 
the  result  of  some  communal  disturbance 
at  Bhagalpur  between  the  Muhammadans 
and  Hindus.  It  is  said  that  the  Hindus 
were  celebrating  a  festival  with  consider- 
able ceremony  and  that  the  passing  of  their 
procession  with  music  and  song  close  to  a 
Moslem  mosque  gave  some  umbrage  to  the 
Muhammadans.  It  is  alleged  that  the 
Muhammadans  attacked  some  Hindus  and 
injured  some  of  them  considerably.  We 
are  informed  that  more  than  one  set  of 
charges  has  arisen  from  this  affair,  It  ia, 


866 


AJO  MIAN  V,  EMPEROR. 


[921.  0.19261 


however,  with  the  facts  of  this  prosecution 
which  is  the  subject-matter  of  the  present 
application  that  we  are  at  the  moment  con- 
cerned. 

The  learned  Counsel  who  has  appeared 
for  the  applicants  has  urged  three  points 
before  us     The  first  is  that  his  clients  have 
been  the  victims  of  certain  illegalities  in 
procedure  at  the  hands  of  the  Trying  Magis- 
trate.   The  second  is  that  there   was   no 
common   object  as  alleged   in  the  charge, 
i'wr.,  assault  on  Hindus,  but  merely  an  isolated 
series  o!  encounters  for  which  perhaps  indi- 
viduals might  properly  be  found  guilty  of 
specific  offences  if  they  were  brought  home 
to  them.     Thirdly,    that    in  the  peculiar 
conditions  exemplified  in  the  evidence  the 
sentences  imposed  are  unnecessarily  severe. 
With  regard  to  the  first  point  it  seems 
clear  that  after  the  prosecution  case  had 
proceeded  for  sometime,  the  Counsel  who 
was  appearing  for  some  of  the  applicants 
fell  ill,  he  was  assisted  by    some  Pleaders 
who  asked  for  a  postponement  of  the  trial 
on  the  ground  that  they  were   not    in  a 
position  to  undertake  the  cross-examination 
of  the  remaining  few  prosecution  witnesses. 
The  Magistrate,  however,  who  had,  from 
the  commencement,  intimated  his  intention 
to  the  parties  of  continuing  if  possible  to 
hear  the  case  de  die  in  diem  refused  the 
application.    The  result  was  that  some  five 
of  the  prosecution  witnesses  including  both 
members  of  the  Police  force  and  private 
persons  were  not  cross-examined.    It  is  not 
seriously  contended    that  the    Magistrate 
acted  either  illegally  or  really  unreasonably 
in  what  he  did,  one  can  only  agree  with 
the  learned  Counsel  for  the  applicants  that 
the  attitude  of  the  Pleaders  who  were  ap- 
pearing for  the  applicants  cannot  be  the 
subject  of  commendation.     It  is  obvious 
that  under  the  circumstances  they  should 
have  done  their  best  to  help  their  clients 
and  it  would    seem  that    they    were    not 
doing  so  by  the  attitude  which  they  thought 
tit  to  adopt.    However,  when  the  accused 
filed  their  list  of  witnesses  and  applied  to 
the  Magistrate  under  s.  257  of  the  Or.  P.  C., 
they  asked  that  these  five  witnesses  should 
be  ordered  to  attend    for  the  purpose  of 
cross-examination.    It  is  quite  clear  that  it 
is' contemplated  under  the    provisions    of 
that  section  that  they  had  a  right  to  make 
this  application  and  indeed    it  has  been 
laid  down  in  the  Calcutta  High  Court  in  the 
case  of  Sheo  Prakaah  Singh  v,  Rawlins  (1), 

28  0, 59* 


that  if  the  Magistrate  in  fact  does  accede 
to  such  a  request  the  accused  are  entitled 
to  cross-examine  such  witnesses  so  called  to 
the    Court.      The  section  itself,  however, 
gives  the    Magistrate    certain    poweis    to 
refuse  such  an  application ;  whether  it  is 
the  case  of  a  witness  who  is  desired  to  be 
called  for  the  defence  or  whether  it  is  one 
whom  it  is  desired  only  to  cross-examine. 
These  grounds  are  either  that  the  applica- 
tion has  in  the  Magistrate's  view  been  made 
for  the  purposes  of  vexation  or  delay  or  for 
defeating  the  ends  of  justice;  and  he  has  to 
record    in   writing    his    decision  for    Ins 
refusal.    In  this  case  the  Magistrate  refus- 
ed to  grant  the  application  for  the    order 
that  these  prosecution  witnesses,  who  had 
not  been  cross-examined,  should  attend  for 
that  purpose.    In  rejecting  the  application, 
the   Magistrate     in     his    order-sheet    has 
written:       "I  have    already    rejected    the 
prayer  to  adjourn  on  that  account  and  see 
no  reason  to  revise  my  opinion  and  grant 
it  now."    Had  the  section  rested  there,  it 
is    possible    that     the    Magistrate    could 
have  been  rightly  said  not  to  have  given 
in    writing    any    ground  for  his  decision 
which  is  contemplated  by  the  section  as  a 
good  ground  for  his  refusal ;  but  there  is  a 
proviso  to  the    section   which  alters    the 
complexion  of  his  action.    The  proviso  to 
the  section  is  to  the  effect  that,  when  an 
accused  has  cross- examined    or    had    the 
opportunity  of  cross-examining  any  witnet-s 
after    the  charge   has    been    framed,    the 
attendance  of  such    witness  shall  not  be 
compelled  under    the  section's  provisions 
unless  the  Magistrate  is  satisfied  that  it  is 
necessary  for  the  purposes  of  justice, 

I  think  that  it  is  quite  clear  in  this  case 
that  the  Magistrate  was  not  satisfied  that 
it  was  necessary  for  the  puiposes  of  justice 
to  compel  the  attendance  of  these  wit- 
nesses, but  it  is  contended  that  the  Magis- 
trate cannot  unreasonably  say  or  assume 
the  position  that  he  is  not  so  satisfied.  In 
other  words,  if,  where  there  exist  cogent 
reasons  why  the  Magistrate  should  have 
been  satisfied,  it  is  illegal  for  him  to  say 
that  he  is  not ;  his  non- satisfaction  must  be 
based  on  reasonable  grounds.  It  is  argued 
that  in  this  case  there  were  very  good 
reasons  for  thinking  that  it  was  necessary 
in  the  interests  of  justice  that  these  wit- 
nesses should  be  directed  to  attend  for 
cross-examination,  . 

There  can  be  no  doubt  that  m  this  case 
an  opportunity  was  ia  last  afforded  to  the 


[92 1.  0. 1926] 


AJO  MIAN  V,  EMPEROR, 


867 


accused  to  cross-examine  these  witnesses  at 
the  proper  time  ;  it  may  not  have  been 
possible  for  the  accused's  leading  Counsel 
to  conduct  the  cross-examination  but  the 
accused  were  represented  it  is  admitted,  by 
other  lawyers* 

The  learned  Counsel  for  the  applicants 
does  not  contend  that  the  mere  fact 
that  an  accused's  lawyers  declined  to 
cross-examine  such  witnesses  or  that  the 
mare  fact  that  such  witnesses  were  not  cross- 
examined  constitute  factors  which  would 
justify  an  argument  that  a  Magistrate's 
opinion  of  satisfaction  that  under  such  cir- 
cumstances it  was  not  necessary  for  him  to 
order  the  attendance  of  such  witnesses 
under  s.  257  could  be  attacked,  for  to  do 
so  would,  of  course,  be  to  contend  that  the 
proviso  to  the  section  was  meaningless  and 
that  whenever  for  any  reason  prosecution 
witnesses  were  not  cross-examined  they 
must  be  ordered  to  attend  if  application 
for  their  cross-examination  is  made  by  an 
accused  under  s.  257. 

What,  however,  he  does  urge  is  that  this 
Court  should  scrutinize  the  reasons  why 
the  Magistrate  was  satisfied  that  the 
attendance  of  the  witnesses  was  not  neces- 
sary and  that  if  it  b3  shown  to  this  Court 
that  there  'were  existing  reasons  why  their 
attendance  was  necessary  for  cross-examin- 
ation for  the  purposes  of  justice  this 
Court  should  interiere  in  its  revisional 
jurisdiction  and  hold  that  the  Magistrate's 
refusal  was  unreasonable  and  inequitable. 
I  am  ready  to  agree  that  if  a  good  case  was 
made  out  that  the  Migistrate's  refusal  was 
outside  the  limits  of  reasonable  discretion 
this  Court  should  and  would  interfere  ;  but 
I  am  sure  that  that  position  must  be  most 
clearly  established,  (ie,  that  the  Magis- 
trate's decision  was  unreasonable  and  im- 
proper) before  the  interference  of  this 
Court  can  properly  be  invoked  or  expect- 
ed. 

I  do  not,  however,  think  that  in  this  Case 
any  such  position  has  been  established. 
The  point  was  argued  at  some  length 
before  the  Sessions  Judge  who  deals  with 
it  in  his  judgment  thus  :— " There  remains 
to  be  considered  the  matter  of  prejudice 
raised  by  the  appellants.  On  15th  Novem- 
ber li*24,  after  the  framing  of  tlio  charges, 
and  while  the  cross-examination  of  the  pro- 
secution witnesses  was  in  progress  a  peti- 
tion was  put  in  on  behalf  of  some  of  the 
accused  stating  that  Mr.  Hassan  the  defend* 
ing  Counsel  had  fallen  ill  and  asking  for 


an  adjournment.  This  was  refused.  On 
that  date  some  witnesses  were  cross-ex- 
amined on  behalf  of  two  of  the  accused, 
namely,  Sachidanand  Singh,  Sub-Inspector, 
Upendra  Mohan  Ghose,  Inspector,  Rajendra 
Prasacl,  Deputy  Superintendent,  Muham- 
mad Ahsan,  Sub-Inspector  and  some  others. 
The  Pleaders  appearing  on  behalf  of  the 
other  accused,  that  is  to  say  accused  whom 
Mr.  Hassan  was  defend  ing  refused  to  cross- 
examine  at  all.  On  19th  November,  after 
the  prosecution  had  closed  their  case,  a 
petition  was  put  in  on  behalf  of  these 
accused  to  re-call  the  four  witnesses  men- 
tioned above  for  cross-examination  under 
s  257  of  the  Cr.  P.  0.  This  was  rejected 
by  the  Magistrate.  Consequently  these 
four  persons  were  not  cross-examined  on 
behalf  of  the  accused  for  whom  Mr,  Hassan, 
appeared. 

''Section  257  lays  downi  clearly  that  the 
Magistrate  need  not  re-call  witnesses 
whom  the  defence  have  had  an  opportunity 
for  cross-examining  unless  he  is  satisfied 
that  it  is  necessary  for  the  purposes  of 
justice.  The  order  of  the  Magistrate 
accordingly  is  perfectly  legal,  nor  do  I 
consider  that  he  exercised  his  discretion 
wrongly.  It  is  not  suggested  that  the 
Pleaders  appearing  for  the  other  accused 
were  insufficiently  instrcuted  or  particular- 
ly incompetent  and  if  it  was  considered 
that  the  Counsel  appearing  for  the  other 
accused  had  not  covered  the  whole  ground 
in  his  cross-examination  their  conduct  in 
refusing  to  put  any  questions  at  all  is 
deserving  of  le-proof  In  any  case  these  four 
officers  did  not  fully  implicate  any  of  the 
appellants  except  Ajo,  Hafiz  Gafoor,  and 
Abdul  Latif  The  rest  of  the  evidence  is 
sufficiently  strong  against  the  two  former, 
and  Abdul  Latif  was  one  of  the  two  men. 
on  behalf  of  whom  cross-examinatioii  waa 
actually  made  " 

These  observations  seem  substantially  to 
show  that  the  Magistrate's  decision  could 
not  have  been  regarded  as  unreasonable* 
Nor  has  the  learned  Counsel  for  the  appli-* 
cants  in  the  course  of  his  able  and  interest- 
ing argument  been  able  to  prove  to  us  in 
what  way  with  certainty  his  clients1  position 
was  prejudiced  or  could  have  been  improv- 
ed by  cross-examination  of  these  witnesses: 
all  that  he  can  urge  is  that  it  might  perhaps 
have  been  possible  from  a  cross-examination 
of  these  witnesses  to  have  extracted  from 
them  something  which  might  have  be$n 
of  advantage  to  the  accused,  But  this  ig 


AJO  MIAN  V.  EMPEROR. 


86d 

not,  I  think  enough  in  order  to  justify  this 
Court's  interference  in  a  case  such  as  this 
and  on  a  decision  based  on  the  proviso  to 
s.  257,  Or.  P.  0.,  it  must  be  shown  to  this 
Court  not  that  there  possibly  by  some 
chance  might  have  been"  but  that  in  fact 
there  was  matter  to  be  obtained  from  the 
witnesses  sought  to  be  called  for  cross- 
examination  which  would  have  materially 
affected  the  result  of  the  trial;  as  the  Assist- 
ant Government  Advocate  has  aptly  ex- 
pressed it,  the  onus  is  clearly  on  the 
applicants  to  establish  that  position  ;  and 
I  do  not  consider  that  in  this  case  they  have 
succeeded  in  so  doing. 

With  regard  to  the  second  point  urged  by 
the  learned  Counsel  for  the  applicants, 
namely,  that  there  was  really  no  common 
object  as  laid  in  the  charge  (that  is  to  say, 
of  assult  on  Hindus)  he  bases  his  argument 
upon  a  close  and  detailed  examination  of 
the  somewhat  confused  phases  of  what  took 
place  on  the  day  of  occurrence.  He  shows 
that  there  were  a  series  of  not  very  closely 
if  at  all  connected  events  on  that  day;  but 
they  had  for  some  little  time  before  been 
preceded  by  happenings  which  had  given 
rise  to  a  good  deal  of  Muhammadan  mis- 
givings and  chagrin.  In  the  opening 
words  of  the  applicant's  petition  "For 
some  time  past  the  relations  between  the 
two  communities,  viz.,  the  Hindu  and  the 
Muhammadan  of  Bhagalpur  had  become 
strained  and  the  feelings  were  running  very 
high/'  The  Hindus  had,  it  is  said,  issued 
notices  to  their  co-religionists  on  21st  August 
192 1,  to  the  effect  that  it  was  contemplated 
celebrating  shortly  their  janamashatmi  fes- 
tival with  considerable  splendour,  and  on 
the  22nd  they  issued  another  notice  asking 
that  they  (the  Hindus)  should,  on  the  follow- 
ing day,  keep  their  shops  shut  and  stop 
business  and  join  the  dadhikado  procession 
which  was  to  take  place  on  the  "23rd. 

The  Moslems  seem  to  have  been  afraid 
that  they  would  be  insulted  in  some  fashion 
and  went  so  far  as  to  apply  to  the  Sadr 
Sub- Divisional  Officer  at  Bhagalpur  asking 
for  Police  arrangements  to  be  made  in  order 
to  prevent  a  breach  of  the  peace  and  that 
the  Bub- Divisional  Officer  should  take  some 
preventive  measures:  the  Sub-Divisional 
Officer  was  a  Moslem  gentleman,  he  did  not 
take  any  measures  to  prevent  the  procession 
taking  place  but  apparently  took  some  Police 
precautions  which  seem  indeed  unhappily 
to  have  been  needed. 

On  the  23rd  the  procession  took  place, 


[92 1.  0.1626] 


it  seems  that  a  large  number  of  Moslems 
were  gathered  in  and  around  a  large  mosque 
which  the  procession  passed.  The  precession 
was  guided  and  shepherded  by  the  Police; 
it  was  carrying  an  image  of  Sri  Krishna  to 
the  Ganges;  some  of  the  processionists  car- 
ried bamboos  with  flags.  Apparently  trouble 
was  only  averted  as  the  procession  pass- 
ed the  mosque,  by  the  Police  for  some 
stones  were  thrown  at  the  tail  of  the  pro- 
cession by  several  Muhammadans.  Some 
of  the  processionists  (the  procession  is  said 
to  have  been  about  5000  strong)  were 
beginning  to  throw  stones  back  and  some 
of  them  began  to  jump  over  the  rails  at  the 
side  of  the  road  and  to  run  back  towards 
the  Muhammadans,  but  the  Police  managed 
to  stop  any  fracas.  The  procession  went  on 
to  the  Ganges  and  then  was  apparently 
returning;  but  it  was  diverted  by  another 
route  :  some  (perhaps  60)  Hindus,  partly 
processionists  and  partly  perhaps  spectators, 
were  re-tracing  their  steps  by  the  route 
by  which  the  procession  had  come  and 
drawing  towards  the  mosque,  at  this  stage 
a  number  of  Moslems,  said  to  be  armed 
with  swords,  axes  and  lathis,  raised  shouts 
and  ran  out,  the  Police  tried  to  prevent  any 
outbreak  and  so  also  did  some  very  re- 
spectable Moslems,  they  seem  to  have  pre- 
vented the  Moslems  from  attacking  this 
party  but  some  of  the  Muhammadans 
(amongst  them  being  it  is  said  the  appli- 
cants)turning  back  begantoknockaboutany 
Hindus  whom  they  met,  several  of  whom 
were  witnesses  in  this  case.  The  applicant 
No.  1  Ajo  Mian  is  well  identified  as  being 
the  leader  or  one  of  the  leaders  of  this 
party  of  Moslems  to  which  the  accused 
(and  no  doubt  others)  belonged,  he  is  said 
to  have  carried  both  a  sword  and  a  lathi> 
and  I  regret  to  say  to  have  used  the  former 
vigorously. 

Applicant  No.  2  Hafiz  Gafoor  is  shown  to 
have  carried  and  used  a  Mirzapur  danta 
wfiich  is  a  heavy  stick.  Applicant  No.  3 
Sheik  Janglu  is  said  to  have  carried  a 
lathi. 

Applicant  No.  4  Sheik  Bado  is  said  to 
have  been  armed  either  with  what  is  de- 
scribed as  a  meat  Cutting  instrument  or  a 
small  lathi  and  to  have  been  throwing 
stories.  Appellant  No.  5  Abdul  Latif  is  said 
to  have  been  armed  with  a  sword  or  a  lathi 
whilst  a  lathi  only  is  said  to  have  been 
carried  by  applicant  No.  6  Abdul  Razak. 

I  have  at  the  commencement  of  my  ob- 
servations stated  what  sentences  were  impos- 


AJO  MIAN  V.  EMPEROR, 


[92  L  0, 1926] 

ed:  One  year  on  Ajo  Mian,  one  year  on  Hafiz 
Gafoor,  and  six  months  on  each  of  the  rest. 
I  cannot  see  any  good  reason  for  justifying 
the  attack  which  the  applicants  made,  al- 
though I  am  quite  prepared  to  think  that 
they  felt  a  good  deal  vexed  at  the  Hindu 
religious  demonstration.  I  have,  however, 
very  little  sympathy  with  people  who  use 
swords  unnecessarily  in  an  emeute. 

1 1  think,  however,  that  taking  all  the 
circumstances  into  consideration,  the  sen- 
tence on  Ajo  Mian  may  be  reduced  to  six 
months  and  on  the  others  to  three  months 
rigorous  imprisonment  and  I  should  like  it 
actually  drawn  to  their  attention  in  thus 
taking  a  lenient  view  of  what  might  have 
been,  had  it  not  been  for  the  Police  and  the 
more  sober-minded  members  of  their  own 
community,  a  most  serious  matter,  that 
I  niost  earnestly  trust  that  in  future  they 
will  endeavour  to  keep  on  good  terms  with 
their  neighbours  whatever  differences  of 
creed  may  separate  their  religious  and 
social  lives.  They  have  got  to  live  side  by 
side  and  the  many  ties  which  should  bind 
them  together  are  really  stronger  than  the 
forces  which  sometimes  seem  to  tend  to 
separate  them. 

Macherson,  JV— I  agree  to  the  order 
proposed. 

On  behalf  of  Ajo,  Hafiz  Qafoor,  Janglu 
and  Bado  the  first  four  petitioners,  chief 
reliance  is  placed  on  the  first  argument. 
Now  while  a  Magistrate  is  bound  unders.  257 
(1)  to  issue  process  on  the  application  of 
an  accused  who  has  entered  on  his  de- 
fence for  compelling  the  attendance  of 
a  witness  for  the  purpose  of  examination 
or  cross-examination  (save  in  certain  stated 
circumstances  which  he  must  find  and 
must  set  forth  in  writing),  the  proviso  to 
that  enactment  on  the  other  hand  definite- 
ly prohibits  the  Magistratefrom  issuing  such 
process,  if  the  accused  has  cross-examined 
or  had  the  opportunity  of  cross  examining 
the  witness  after  the  charge  was  framed, 
unless  the  Magistrate  is  satisfied  that  such 
attendance  is  necessary  for  the  purposes  of 
justice,  that  is  to  sav,  unless  he  is  convinced 
of  the  existence  of  the  strongest  possible 
grounds  for  disregarding  the  prohibition. 
The  exception  to  the  prohibition  must  not 
be  read  as  swallowing  up  the  prohibition  or 
the  whole  proviso  as  enjoining  that  the 
Magistrate  shall  issue  process  if  he  is  not 
satisfied  that  the  attendance  of  the  witness 
is  unnecessary  for  the  ends  of  justice  or  if  he 
is  not  satisfied  that  (as  in  the  case  of  the 


witnesses  not  covered  by  the  proviso)  the 
application  ia  made  for  the  purpose  of  vexa-> 
tion  or  delay  or  for  defeating  the  ends  of 
justice.  On  the  contrary  the  prohibition 
may  not  be  disregarded  unless  in  the  opinion, 
of  the  Magistrate  the  purposes  of  justice 
not  merely  warrant  but  demand  such  dis- 
regard. It  is  also  clear  that  it  is  not  in- 
cumbent upon  him  (though  it  is  often  ex- 
pedient) to  record  in  writing  the  reason  for 
not  being  satisfied — the  natural  course  would 
be  to  require  a  record  of  reasons  for  dis- 
regarding (not  for  not  disregarding)  a 
statutory  prohibition 

Though  there  may  be  exceptional  cases 
where  the  Court  can  eee  at  once  that  the  at- 
tendance of  a  witness  referred  to  in  the  pro- 
viso should  be  compelled,  it  is  ordinarily 
for  the  applicant  to  satisfy  the  Magistrate 
that  it  is  necessary  for  the  purposes  of 
justice  that  his  application  for  compelling 
the  attendance  of  such  a  witness  should  be 
granted.  In  the  present  instance  the  first 
four  petitioners  had  had  an  opportunity 
of  cross-examining  certain  witnesses  through. 
Pleaders  who  represented  them  throughout 
the  trial,  but  they  nad  not  availed  them- 
selves of  it.  They  sought  to  bring  themselves 
within  the  proviso  by  merely  pointing  out 
that  their  Counsel  who  would  have  cross- 
examined  was  ill.  But  much  more  than  th« 
mere  statement  of  that  fact  was  necessary 
in  the  circumstances  of  the  case  to  show 
that  the  attendance  of  the  witnesses  who 
had  not  been  cross-examined  on  the  peti- 
tioners' behalf,  was  necessary  for  the  pur* 
poses  of  justice.  For  instance  that  there 
were  definite  matters  of  importance  on  which, 
the  witnesses  ought  to  be  cross-examined 
on  behalf  of  the  petitioners.  Only  general 
considerations,  however;  were  advanced 
and  no  real  attempt  was  made  to  satisfy 
the  Court  that  the  application  came 
within  the  exception  to  the  statutory  pro- 
hibition. Manifestly  those  considerations 
failed  to  satisfy  the  Magistrate.  Now,  the 
burden  of  showing  in  appeal  or  revision  that 
the  Magistrate  ought  to  have  been  satisfied 
lies  very  heavily  on  the  appellant  or  peti- 
tioner. The  discretion  is  committed  to  the 
Magistrate  and  if  valid  reasons  for  exercis- 
ing it  in  favour  of  the  accused  $re  not  ad- 
vanced in  his  Court  or  do  not  clearly  appear 
from  the  record  as  it  stood  at  the  time, 
it  is  impossible  for  the  superior  Court  to 
hold  that  he  was  wrong  in  failing  tp  dis- 
regard the  statutory  prohibition  in  favour  of 
the  accused,  Little  weight  ia  to  be  accorded 


SfO  MA9ALA 

to  considerations  which  did  not  occur  to  the 
applicant  at  the  time  and  are  of  the  nature 
of  afterthought.  It  is  clear,  therefore,  that 
even  if  attention  i«  restricted  to  the  con- 
siderations in  favour  of  the  argument,  there 
is  no  ground  for  interfering  in  revision 
\vith  the  order  of  the  Magistrate. 

There  are,  however,  special  considerations 
in  the  present  case  which  militate  against 
interference  in  revision.  Not  only  is  it 
not  shown  that  there  were  materials  before 
the  Magistrate  on  which  he  was  satisfied 
or  which  ought  to  have  satisfied  him  that 
process  to  compel  the  attendance  of  the 
witnesses  who  had  not  been  cross-examin- 
ed was  necessary  for  the  purposes  of  justice, 
but  it  is  obvious  that  he  was  not  so  satisfi- 
ed and  that  he  was  even  satisfied  to  the 
contrary.  The  parties  had  been  warned 
that  the  trial  would  proceed  from  day  to  day 
and  the  Pleaders  of  petitioners  Nos.  I  to  4 
ought  to  have  been  ready.  Mr.  Nairn  an  ex- 
perienced Counsel,  cross-examined  at  length 
the  witnesses  present  on  that  date  on  behalf 
of  Latif  and  Razak  petitioners  Nos.  5  and  6 
and  on  the  case  generally  prima  facie  cover- 
ing the  whole  ground.  Several  of  the 
numerous  Pleaders  appearing  on  behalf  of 
the  first  four  petitioners  were  also  retained 
on  behalf  of  Latif  and  Razak  and  two 
of  them  at  least  were  present  in  Court. 
There  were  sixteen  accused  on  trial  and  when 
Mr.  Nairn  concluded  noj  only  petitioners 
Nos.  1  to  £  but  also  all  the  other  ten 
accused  declined  to  cross-examine.  It  was 
thus  even  possible  for  the  Magistrate  on 
consideration  of  all  matters  before  him 
actually  to  be  satisfied  that  it  was  not  neces- 
sary for  the  ends  of  justice  to  compel  the 
attendance  of  the  four  prosecution  witnesses 
for  further  cross-examination. 

It  is  not  unusual  for  the  defence  to  take 
advantage  of  a  contretemps  of  the  nature 
indicated  in  order  to  make  capital  out  of  it 
in  appeal  or  revision,  especially  where,  as 
in  this  instance,  the  risk  involved  is  negli- 
gible. In  circumstances  such  as  have  been 
detailed  the  Trying  Magistrate  alone  is  in  a 
position  to  gauge  the  situation  and  to  ap- 
preciate whether  the  refusal  to  cross-examine 
and  the  subsequent  application  for  process 
against  the  same  witnesses  has  been  merely 
"tactical,1'  and  thus  it  behoves  superior 
Courts  to  be  on  their  guard  against  sugges- 
tions as  to  the  conduct  of  the  trial. 

Finally  reference  may  be  made  to  the 
specific  finding  of  the  learned  Sessions 
Judge  that  the  elimination  of  the  depositions 


[82  I,  0. 1926] 

of  the  witnesses  not  cross- examined  onbehalf 
of  petitioners  Nos.  1  to  4  would  not  improve 
the  position  of  these  petitioners,  since  those 
witnesses  do  not  advance  the  prosecution 
case  against  petitioners  Nos.  3  and  4  and 
the  other  evidence  on  record  is  adequate  to 
establish  the  charges  against  the  petitioners 
A  jo  and  Haffz  Ghafur. 

The  first  ground  is,  therefore,  without 
merit. 

The  second  plea  on  behalf  of  appellants 
fails  since  the  common  object  set  out  in  the 
charge  of  assaulting  Hindus —not  the  pro- 
cessionists only  but  also  any  members  of  the 
community  met  with — has  been  found  to  be 
established,  while  as  to  the  sentences  I  would 
join  in  the  hope  that  the  reduction  may 
have  a  beneficial  effect  on  the  relations  be- 
tween the  two  communities  at  Bhagalpur. 

z,  K.  Ride  discharged: 

Sentence  reduced 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  711  OF  1925. 

December  16,  1925. 

Present :— Mr.  Justice  Daniels. 

Uusammat  MASALA— APPLICANT 

versus 
EMPEROR  THROUGH  RAMJAG 

AND  OTHRUS — OPPOS'TE  PARTIES. 
Criminal  Procedute  Code  (Act  V  of  1898),  s. 
U.  P.  Village  Panchayat  Act  (VI  of    1020],  ss.  31,  82 
—Criminal     trial — Acquittal— Revision— Interfet  ence 
by  High  Court. 

*  Section  32  of  the  U,  P  Village  Panchayat  Act 
applies  only  to  suits;  the  corresponding  provision 
applicable  to  criminal  cases  is  contained  in  s.  31  of 
the  Act. 

Where  an  Appellate  Court  sets  aside  a  conviction 
on  the  ground  that  the  proceedings  in  the  Trial  Court 
were  without  jurisdiction,  the  finding  being  based  on. 
a  misreading  of  a  statutory  provision,  the  High  Court 
is  entitled  to  set  aside  the  order  of  acquittal  in  revi- 
sion. 

Criminal  revision  from  an  order  of  the 
District  Magistrate,  Basti,  dated  the  16th 
October  1925. 

Mr.  Harnandan  Prasad>  for  the  Appli- 
cant. 

Mr.  Kumuda  Prasad,  for  the  Opposite 
Parties. 

JUDGMENT.— This  is  an  application 
in  revision  against  an  order  of  the  District 
Magistrate  of  Basti  on  appeal  from  a  convic- 
tion under  sa.  352  and  426,  Indian  Penal 
Code.  Thecasswas  instituted  before  the 
Sub- Divisional  Magistrate  who  made  it  over 


JSOBASAN  SttfGH  0,  nAMRlSHON*  LAL. 


[92  I,  0. 1926] 

to  the  Tahaildar.  The  Tahsildar  convicted 
the  accused  and  sentenced  them  to  payment 
of  fine  No  question  of  the  application  of 
the  Village  Panchayat  Act  seems  to  have 
been  raised  at  any  stage  of  the  proceedings 
until  the  appeal  was  argued  before  the 
District  Magistrate.  The  District  Magis- 
trate on  the  basis  of  s.  32  of  that  Act  con- 
sidered that  the  Tahsildar  had  no  jurisdic- 
tion to  try  the  case  and  held  his  proceed- 
ings to  be  void  and  cancelled  his  order. 
The  learned  District  Magistrate  has  entirely 
misunderstood  s.  32  of  the  Village  Pancha- 
yat Act  which  applies  only  to  suits.  The 
provisioinjipplicable  to  criminal  cases  is  s. 
31.  It  is  urged  that  technically  this  order 
amounts  to  an  acquittal  and,  therefore,  this 
Court  should  not  interfere  in  revision.  This 
is  just  one  of  those  cases  in  which  the  High 
Court  is  justified  in  interfering,  the  Appel- 
late Court  having  wrongly  considered  that 
the  whole  of  the  proceedings  in  the  Trial 
Court  were  without  jurisdiction.  I  accord- 
ingly set  aside  the  order  of  the  District 
Magistrate  and  direct  him  to  re-hear  the 
appeal, 
z,  K.  Order  set  aside. 


PATNA  HIGH  COURT. 

OfiiMiNAL  REVISION  No.  725  OF  1924. 

February  2,  1925. 

Present: — Mr.  Justice  Jwala  Prasad. 

JEOBARAN  SINGH  AND  OTHEKS- 

ACCUSED— PETITIONERS 

versus 
RAMKISHUN  LAL-OpposiiE  PARTY. 

Bengal  Ferries  Act  (I  B  C  of  1885),  ss  Jtf,  28— Cri- 
minal Procedure  Code,  (Act  V  of  1898),  s  Sty— Ferry, 
unauthorized,  maintenance  of — Carriage  of  passengers 
or  property — Offence  — Several  offences,  trial  of — Pro- 
cedure 

Saction  16  of  the  Bengal  Ferries  Act  only  makes 
the  maintenance  of  a  ferry  within  the  prohibited  area 
an  unauthorized  act  but  does  not  make  such  an  act 
penal  Section  28  of  the  Act  is,  however,  a  penal 
provision  which  makes  the  maintenance  of  an.  un- 
authorized ferry  under  s  16  of  the  Act  an  offence 
when  thefeiry  is  used  for  conveying  a  passenger, 
animal,  vehicle  or  other  thing  for  hire  [p  872,  col  1 1 

In  order  to  constitute  a  ferry  such  as  contemplated 
by  tha  Bengal  Ferries  Act  it  is  necessary  that  thare 
should  be  two  points  on  both  sides  of  the  river  so  that 
passengers  and  property  may  be  conveyed  from  one 
side  of  the  river  to  the  other  It  must  be  connectsd  on 
bath  sides  with  land  on  the  banks  of  the  river  [ibid  ] 

The  maintenanc3  of  a  private  f  orry  is  in  contraven- 
tion of  s.  16  of  the  Bengal  Ferries  Act  for  which  the 


871 

, who   maintaius  the   ferry   may  be  liable   for 

damages  and  an  injunction  may  also  be  issued  against 
him  If,  however,  in  addition  to  maintaining  such  a 
prohibited  private  ferry,  ha  carries  pissengers  or 
property  hs  is  liable  criminally  under  a.  28  of  the 
Act  and  each  time  he  conveys  passengers  or  property 
for  hire  ho  commits  an  oft'ence  Each  trip  is  a 
separate  ttansiction  and  am  be  tried  separately. 
Whore  several  tups  are  made  within  the  course  of  a 
few  days  the  proper  piocedure  is  for  the  Magistrate  to 
try  the  accused  at  one  time  only  in  respect  of  three  of 
thess  transactions  and  to  use  the  remaining  transac- 
tions as  evidenco  in  the  case  for  the  purpose  of  deter- 
mining the  amount  of  the  damages  payable  under  the 
Act.  If  a  conviction  is  obtained  in  reapact  of  transac- 
tions selected  for  trial,  the  Court  should  stay  the 
enquny  into  or  trial  of  the  other  charges  which  will 
have  the  effect  of  the  acquittal  of  the  accused  on 
those  charges  subject  to  the  event  of  the  conviction 
bamg  set  aside  on  appeal  01  revision  If  the  convic- 
tion is  sot  aside  th°  Magistiate  may  pioceed  with 
the  trial  of  or  enquny  into  other  charges.  [p  872, 
col  2,  p  873,  col  1  ] 

Criminal  revision  from  an  order  of  the 
Sessions  Judge,  Patna,  dated  the  16th  De* 
cember  1924,  upholding  that  of  the  City 
Magistrate,  Patna  City,  dated  the  2nd  De- 
cember 1924. 

Messrs.  P  C.  Manuk,  S.  Pt  Verma  and  N. 
N.  Sinha,  for  the  Petitioners. 

Sir  All  Imam  (Assistant  Government 
Advocate)  and  Girindra  Nath  Mukharji,  for 
the  Opposite  Party. 

JUDGMENT.— The  petitioners  have 
been  summoned  to  stand  on  their  trial  with 
respect  to  24  complaints  filed  against  them 
on  behalf  of  a  ferry  contractor  Chandraketu 
Singh  by  his  servant  Ramkishun  Lai  in  the 
Court  of  the  City  Magistrate  of  Patna  under 
s.  16/28  of  the  Ferries  Act  (Act  I  of  1885). 

The  case  of  the  complainant  in  short  is 
that  the  petitioners  were  conveying  passen- 
gers, etc  >  for  hire  in  contravention  of  the  pro- 
visions  of  s.  16  of  the  Ferries  Act  by  main* 
taining  a  ferry  between  the  9th  and  12th 
November  1924.  There  are  24  complaints 
arising  out  of  as  many  trips  from  Marufgunj 
in  Patna  City  across  the  river  Ganges  to 
Sabalpur  Diarain  the  Saran  District. 

The  petitioners1  main  objection  is  that  all 
these  24  trips  do  not  constitute  as  many 
separate  offences  under  the  aforesaid  sec- 
tion, but  that  they  together  constitute  one 
offence  and,  therefore,  they  should  be  tried 
at  one  trial  with  respect  to  all  these  trips. 
Mr  Manuk  on  behalf  of  the  petitioners  con- 
ten  Js  that  in  order  to  sustain  a  charge  under 
s.  28  it  is  essential  to  show  in  the  first  in- 
stance that  the  petitioners  maintained  a 
ferry  to  or  from  any  point  within  a  distance 
of  two  miles  from  the  limits  of  a  public  ferry 
which  is  prohibited  by  s.  16  of  the  Act, 


874 


JEOBARAK  6INQH 


That  section  only  makes  the  maintaining  of 
a  ferry  within  the  prohibited  degrees  an 
unauthorized  act  but  it  is  not  in  itself  penal. 
It  may  give  rise  to  an  action  for  damages, 
but  is  not  punishable  under  the  criminal  law. 
Section  28  is  a  penal  provision  which  makes 
the  maintenance  of  an  unauthorized  ferry 
under  s.  16  an  offence  when  the  ferry  is  used 
for  conveying  any  passenger,  animal,  vehicle 
or  other  thing  for  hire.  Accordingly,  it  is 
contended  that  the  ferry  in  question  was 
used  for  four  days,  namely,  from  9th  to 
12th  November,  during  the  Sonepur  fair, 
for  the  purpose  of  carrying  passengers,  etc., 
for  hire  and  thus  the  ferry  was  maintained 
for  the  aforesaid  four  days  for  the  purpose 
of  making  profit  by  realising  tolls  from 
passengers.  The  act  of  realising  tolls  dur- 
ing the  four  days  must  be  deemed  to  be  one 
continuous  act  as  implying  the  maintaining 
the  ferry  under  s.  16  of  the  Act.  Therefore, 
each  time  the  toll  was  realised  during  those 
four  days  would  not  constitute  a  separate 
transaction  and  would  not  form  the  subject 
of  a  separate  charge  or  trial  against  the 
petitioners. 

The  word  'ferry'  has  not  been  defined  in 
the  Act.  Section  5  simply  says — 

"  'ferry1  includes  a  bridge  of  boats,  pon- 
toons or  rafts,  a  swing-bridge,  a  flying 
bridge,  a  temporary  bridge,  and  a  landing 
stage". 

The  word  must,  therefore,  be  taken  in  its 
ordinary  accepted  legal  significance.  Literal- 
ly it  has  been  defined  in  Bouvier's  Law 
Dictionary  as  "a  liberty  to  have  a  boat  upon 
a  river  for  the  transportation  of  men,  horses, 
and  carriages  with  their  contents,  for  a 
reasonable  toll.  The  term  is  used  also  to 
designate  the  place  where  such  liberty  is 
exercised.  In  law  it  is  treated  as  a  franchise 
and  defined  as  the  exclusive  right  to  carry 
passengers  across  a  river,  or  arm  of  the  sea, 
from  one  vill  to  another,  or  to  connect  a  con- 
tinuous line  of  road  leading  from  one  town- 
ship or  vill  to  another".  Continuing  the 
dictionary  says  "In  a  strict  sense  a  ferry  is  a 
continuation  of  a  highway  from  one  side  of 
the  water  to  the  other  and  is  for  the  trans- 
portation of  passengers,  vehicles  and  other 
property".  In  order  to  constitute  a  ferry 
such  as  is  contemplated  by  the  Act  in  this 
country  it  is  necessary  that  there  should  be 
two  points  on  both  sides  of  the  river  so  that 
people  and  property  may  be  conveyed  from 
one  side  of  the  river  across  the  other.  It 
must  be  connected  on  both  sides  with 
land  on  the  bank  of  the  river.  In  order  to 


UL.  [92 1,  0. 1923] 

give  full  significance  to  this  meaning  of  th* 
term  the  Act  has  included  in   it  "any  other 
appliance  by  which  the  water  is  connected 
with    the    land".    This    purpose    may  be 
served  by  a  bridge   of  boats,  pontoons  or 
rafts,  etc.    In  this  sense  the  public  ferry  is 
created  and  leased  on  behalf  of  the  authori- 
ties, and  to  protect  the  rights  granted  under 
the  lease  with  respect  to  a    public    ferry 
the  Act  has  made  it  illegal  to  maintain  a 
regular  ferry  on  a  river  within  two  miles 
of  a  public   ferry  so  as   not  to    interfere 
with    or    affect    the  peaceful  working  of 
and  making  profit  out  of  the  public  ferry 
leased  to  the  contractor.    It  seems  that  the 
idea  is  similar  to   that  in  England  where, 
the  aforesaid  dictionary  notes,  "ferries  are 
established  by  royal  grant  or  by  prescrip- 
tion, which  is  an  implied  grant  in  the  Unit- 
ed States,by  Legislative  Authority,  exercised 
either  directly  or  by  a  delegation  of  powers 
to  Courts,  Commissioners,  or  Municipalities." 
Wherever  such  public    ferries  have    been 
created  provision  has  always  been  made  to 
protect  the  interest  of  the  public  ferry  by 
forbidding  individuals  erecting  a  competi- 
tion ferry  near  about  One  provision  referred 
to  in  the  dictionary  is  "if  an  individual,  with- 
out authority  from  the  State,  erect  a  new 
ferry  so  near  an  older  ferry,  lawfully  estab- 
lished, as  to  draw  away  the  custom  of  the 
latter,  such  individual  will  be  liable  to  an 
action  on  the  case  for  damages,  or  to  a  suit 
in  equity  for  an  injunction  in  favour  of  the 
owner  of  the  latter."    This  seems  to  have 
been  the  object  with  which  s.  16  has  been 
enacted.    The  maintenance,  if  any,  of  a  pri- 
vate ferry  by  the  petitioners  was  in  contra- 
vention of  s.  16  of  the  Act   for  which  they 
may  be  liable  for  damages  and  also  an  in- 
j  unction  may  issue    against  them.    If,  in 
addition  to  maintaining  such  a  prohibited 
private  ferry,  they  carried  passengers  and 
property  for  hire  they  are  liable  criminally 
under  s.  28  of  the  Act,  and  each  time  they 
did  convey  for  hire  they  became  liable. 

It  seems  that  each  trip  was  a  separate 
transaction  and  can  be  tried  separately. 
The  question,  however,  is  whether  the 
petitioners  should  be  tried  simultaneously 
for  all  the  offences  committed  by  them  be- 
tween the  9th  and  the  12th  November  1924. 
The  offences  were  committed  within  a 
space  of  one  year  and  the  principles  under- 
lying ss.  234  and  240  of  the  Cr.  P.  C.  may 
usefully  be  availed  of.  The  Magistrate 
should  try  at  one  time  only  three  of  these 
transactions  and  use  the  remaining  transao- 


ALAMPATH  KRISHNAN  V.  MUNICIPAL  PftOSEOUTOR, 


[92  I.  0. 1926J 

tione  as  evidence  in  the  case  for  the  purpose 
of  determining  the  amount  of  punishment 
and  damages  payable  under  the  Ferries  Act. 
If  conviction  is  obtained  on  such  a  trial,  the 
Court  should  stay  the  inquiry  into  or  trial 
of  the  other  charges  which  will  have  the 
effect  of  an  acquittal  of  the  accused  on  those 
charges  subject  to  the  event  of  the  convic- 
tion being  set  aside  by  higher  authorities. 
If  the  conviction  is  set  aside  the  Magistrate 
may  proceed  with  the  trial  or  inquiry  of  the 
other  charges. 
z.  K,  Conviction  set  aside. 


873 


MADRAS  HIGH   COURT. 

CRIMINAL  REVISION  CASE   No.  187  OF  1925 
CRIMINAL  REVISION  PETITION   No.  167 

OF  19*5. 

October  20,  1925. 
Present: — Mr.  Justice  Jackson. 
ALAMPATH  KRISHNAN—AccusED— 
PETITIONER 

versus 

THE  MUNICIPAL  PROSECUTOR, 

CUNNANORB  MUNICIPALITY— 

COMPLAINANT— RESPONDENT. 

Madras  District  Municipalities  Act  (V  of  1920), 
8  %l$^  Sch  V,  d  (q)— "Machinery",  meaning  of — 
Collection  of  handlooms,  whether  machinery 

The  "machinery"  contemplated  by  Sch  V,  cl  (q) 
of  the  Madras  District  Municipalities  Act  is  machinery 
worked  by  power  ^uch  as  steam,  water,  or  electrical 
power,  and  the  word  must  be  confined  to  such  forms 
of  machinery  as  may  reasonably  be  held  to  be  in  the 
same  category  as  combustibles,  and  unwholesome  or 
dangerous  trades 

Machinery  worked  by  hand  such  as  handlooms  or 
sewing  machines  is  excluded  from  the  scope  of  s  249 
of  the  Act. 

A  collection  of  maggoms  is  not  "machinery  within 
the  meaning  of  Sch  V,  cl  (<?)  of  the  Act  and  no 
license  is,  therefore,  required  to  be  taken  under  e.  249 
of  the  Act  for  using  the  same. 

Petition,  under  ss.  435  and  437  of  the 
Or.  P.O.,  1898,  praying  the  High  Court  to 
revise  the  judgment  of  the  Court  of  the 
Bench  of  Magistrates,  dated  the  10th  Feb- 
ruary 1925,  in  8.  T.  No.  1  of  1925. 

SirK.  V.  Reddi,for  the  Petitioner. 

Mr.  N.  Govindan,  for  the  Responded. 

The  Public  Prosecutor,  for  the  Crown. 

ORDER* — Petitioner  seeks  to  revise 
the  finding  and  sentence  of  the  Bench 
Court,  Cunnanore,  fining  him  Es.  10  for 
failure  to  take  out  a  license  under  8,  249, 
Act  V  of  1920, 


It  is  admitted  that  petitioner  has  a 
weaving  factory  containing  nine  looms  of 
the  sort  which  the  weaver  works  with  his 
hands  and  feet,  known  as  a  maggom  or 
European  loon;.  The  Bench  has  found  that 
he  was  liable  to  take  out  a  license  for  using 
for  an  "industrial  purpose11  machinery 
a3  provided  in  sub-cl.  (q)  of  Sch.  V,  Act 
V,  1920.  The  question  for  determination 
is  whether  those  looms  are  machinery  with- 
in the  mischief  of  the  Act. 

The  learned  Public  Prosecutor  argues 
that  the  sub-cl.  (q)  covers  anything  which  is 
likely  to  be  dangerous  to  human  life,  or 
health  or  property,  and  any  machinery 
used  for  an  industrial  purpose  which  is 
thus  dangerous  requires  a  license.  On  this 
interpretation  of  the  clause,  the  word 
'machinery1  would  be  otiose.  Bo  long  as  the 
industrial  process  were  dangerous,  it  would 
not  matter  whether  it  was  performed  by 
hand,  instiument  or  machine ;  it  would 
still  have  to  be  licensed.  Something  more 
than  a  mere  dangerous  process  is  evidently 
intended  by  "  machinery11  but  the  question 
is  within  what  limits  the  word  is  employed. 
It  cannot  have  been  intended  that  any  thing 
which  is  commonly  called  a  machine  must 
be  licensed.  For  instance,  no  one  has  ever 
supposed  that  singer's  sewing  machines 
required  license,  and  the  literary  sense  of 
the  word  is  too  general  to  afford  any 
guidance.  In  old  English,  machine  was 
synonymous  with  universe,  and  when  Ham- 
let concludes  his  letter  to  Ophelia,  "Thine 
ever  more  most  dear  lady,  whilst  this 
machine  is  to  him11,  he  treats  the  word  as  the 
equivalent  of  body.  For  a  long  time  machine 
was  used  as  another  word  for  vehicle, 
a  meaning  which  survives  in  "bathing 
machine",  and  is  still,  1  gather  from  the 
Public  Prosecutor,  prevalent  in  the  more 
remote  parts  of  the  British  Isles,  and 
although  such  general  sense  are  long 
obsolete  and  the  teim  is  now  confined  to 
some  sort  of  apparatus  for  applying 
mechanical  power,  it  has  within  those  limits 
a  very  wide  application.  Notonly  a  handloom 
but  any  hand  instrument  which  involves 
more  than  one  simple  mechanical  principle 
is  a  machine.  For  instance,  though  a 
hammer  may  be  called  an  instrument,  a 
nail  extractor  is  a  machine  and  a  hand 
ginning  apparatus  is  a  machine.  Thus 
even  in  its  ordinary  sense  "  machine  "  would 
seem  to  have  a  wider  connotation  than  the 
clause  intends.  The  Statute  itself  affords 
no  assistance  by  way  of  definition ;  but  I 


ST4 


BADRI  OHOODHRt  V.  BMP1ROR. 


[93  L  0,1926] 


obaerve  that  e,  250  refers  to  mechanical 
power  and  I  think  that  this  points  to  the 
right  interpretation.  As  observed  by  Pro- 
fessor Murray  in  the  Oxford  Dictionary  in 
recent  use,  the  word  tends  to  be  applied 
especially  to  an  apparatus  s'o  devised  that 
the  result  of  its  operation  is  not  dependent 
on  the  strength  or  manipulative  skill  of  the 
workman.  In  other  words  an  apparatus 
driven  by  other  than  human  and,  1  would 
add,  animal  power ;  I  think  that  the 
machinery  contemplated  in  the  Act  is 
machinery  worked  by  power  such  as  steam, 
water,  or  electrical  power;  and  machinery 
worked  by  hand  such  as  handlooms,  or 
sewing  machines  is  excluded.  This,  of 
course,  is  the  limited  sense  in  which 
machinery  was  understood  at  the  time  of  the 
Luddite  and  similar  riots.  No  doubt  this 
is  an  arbitrary  decision,  and  it  would 
be  better  if  the  Statute  contained  its  own 
definition,  but  it  is  the  only  definition 
which,  after  a  careful  consideration  of  the 
matter,  seems  to  afford  the  licensing  officer 
a  clear  criterion,  and  also  to  confine 
" machinery"  in  cl.  (q)  to  such  forms  of 
machinery  as  may  reasonably  be  held  to  be 
in  the  same  category  as  combustibles,  and 
unwholesome  or  dangerous  trades. 

I  find  that  a  collection  of  maggoms  is  not 
machinery  under  Sch.  V  (q)  The  petition 
is  allowed  and  the  conviction  set  aside. 
The  fine  should  be  refunded. 

v.  N.  v.  Petition  allowed. 

z.  K, 


PATNA  HIGH  COURT, 

CRIMINAL  APPEAL  No.  15  OF  1925. 

March  19,  1925. 
Present: — Justice  dir  John  Bucknill,  KT., 

and  Mr.  Justice  Macpherson, 
BADKI  CHOUDHRY  ^ND  OTHERS- 
ACCUSED  — APPBLLAN is 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  ss.  16$, 
H2— Evidence  Act  (I  of  1872),  s  W7— Statement  made 
to  Police,  whether  can  be  used  at  trial— Procedure — 
Improper  admission  of  evidence,  effect  of. 

A  statement  made  by  a  witness  during  Police  in- 
vestigation can  only  be  used  to  assist  the  accused  by 
showing  that  the  witness  who  in  Court  deposes  to 
certain  facts  has  in  his  statement  before  the  Police 
given  an  account  or  made  statements  which  are  con- 


tradictory to  the  testimony  which  h«  gives  in  Court. 
The  statement  made  to  the  Police  cannot  bo  usad  at 
large  for  ths  purpose  of  showing  that  the  statement 
does  not  corroborate  or  assist  the  story  as  put 
forward  m  the  First  Information  Keport  [p,  877,  col.  2.] 
Ths  limitations  under  which  such  a  statement  can 
1)3  U33d  arc  very  strict.  Ths  statement  of  a  prosecxi- 
tion  witness  alone  can  be  used  at  tho  trial  and  only  if 
it  has  been  reduced  to  -writing  and  only  that  part  of 
it  can  bj  used  which  is  in  contradiction  of  the  evi- 
dence of  tha  witness  given  in  Court  provided  it  is 
duly  proved  and  tha  attention  of  the  witness  has  been 
drawn  to  it  A  statement  made  to  the  Police  which 
djes  not  contradict  the  testimony  of  the  witness  given 
in  Court  cannot  b3  proved  in  any  circumstances,  and 
it  is  not  psrmisbible  to  use  the  recorded  statement 
as  a  whole  to  show  that  the  witness  did  not  say 
something  to  the  investigating  officer  [p  880,  col.  2; 
p  SSl.coJ.  1 J 

Under  s  167  of  the  Evidence  Act  the  improper 
admission  of  evidencs  is  not  of  itself  a  ground  for  a 
new  trial  or  reversal  of  ti  decision  in  a  case,  if  it 
appears  to  the  Court  that  independently  of  that  evi- 
dence there  was  sufficient  evidence  to  justify  1he 
decision,  [p  881,  col,  2] 

Criminal  appeal  from  a  decision  of  the 
Sessions  Jurige,  Darbhanga,  dated  the  19th 
January  1925. 

Messrs.  K.  B.  Dutt,  S.  P.  Varma  and  L. 
K.  Jhay  for  the  Appellants. 

The  Assistant  Government  Advocate,  for 
the  .Respondent, 

JUDGMENT. 

Bucknill,  J. — This  was  an  appeal  made 
to  this  Court  by  eight  persons  who  were 
convicted  on  the  19th  January  last  by 
the  Sessions  Judge  of  Darbhanga  of  vari- 
ous offences  and  were  sentenced  to  various 
terms  of  imprisonment.  When  the  appli- 
cation for  the  admission  of  this  appeal 
came  before  this  Court  before  Mr.  Justice 
Mullick  and  myself  we  ordered  that,  al- 
though the  appeal  should  be  heard,  the 
appellants  should  be  directed  to  show 
cause  why  their  sentences  should  not  be 
enhanced.  This  was  on  the  21st  January 
last. 

Originally  16  persons  stood  their  trial ; 
but,  of  these,  eight  were  acquitted,  the 
learned  Sessions  Judge  thinking  that  he 
was  not  altcg*  th^r  satisfied  that  the  parti- 
cipation by  those  eight  persons  in  what 
had  taken  place  had  been  fully  and  con- 
clusively substantiated.  The  present  appel- 
lant No.  3,  Tirpit  Choudhry,  is  regarded  as 
the  principal  leader  in  the  affair.  He  was 
convicted,  first  of  all,  under  the  provisions 
of  s.  148  of  the  Indian  Penal  Code  and 
sentenced  to  six  months1  rigorous  im- 
prisonment and  to  a  fine  of  Rs.  50  there- 
under and,  secondly,  of  an  offence  under 
the  joint  provisions  of  ss.  325  and  149, 
Indian  Penal  Code,  and  thereunder  he 


BADRI  OHOTTDHRY  $,  BMPEROR. 


[92  I.  0, 1986] 

sentenced  to  eight  months'  rigorous  im- 
prisonment and  to  a  fine  of  Rs.  50.  The 
sentences  of  imprisonment  were  to  run  con- 
Currently.  The  2nd  and  the  4th  appellants, 
Kishori  Choudhry  and  Palat  Choudhry, 
were  convicted  also  under  the  same  sec- 
tions as  was  appellant  No.  3  ;  bub  in  their 
case  the  sentences  of  imprisonment  were 
six  months  in  respect  of  each  offence  and 
a  fine  of  Rg.  25  in  respect  of  the  convic- 
tion under  the  provisions  of  s.  148.  The 
other  five  appellants  were  only  convicted 
of  offences  against  the  provisions  of  s.  147 
and  the  combined  provisions  of  ss.  325  and 
149,  Indian  Penal  Code,  and  they  were  each 
sentenced  thereunder  to  three  months'  rigor 
oua  imprisonment  such  terms  of  imprison- 
ment being  as  m  the  other  cases  ordered  to 
run  concurrently.  They  were  allalsobound 
over  under  s  108,  Or.  P.  C ,  to  keep  the 
peace  for  one  year. 

Now,  the  charges  upon  which  these  ap- 
pellants were  convicted  were  altogether 
three  in  number.  The  first  was  that  they 
were  members  of  an  unlawful  assembly 
the  common  object  of  which  was  the  for- 
cible taking  of  the  ploughs  of  one  Sheikh 
Mazhar  and  begari  (that  is  to  say,  forced 
labour  without  making  any  payment)  from 
him;  and  that  in  prosecution  of  the  com- 
mon object  the  appellant  had  used  physical 
force  This  was,  of  course,  the  charge  under 
s.  147,  Indian  Penal  Code,  The  second 
charge  was  that  being  members  of  the 
unlawful  assembly  and  actuated  with  the 
common  object  "as  detailed  in  the  previous 
charge  some  member  or  members  of  the 
assembly  had  committed  the  offence  of 
voluntarily  causing  grievous  hurt  under 
the  provisions  of  s.  325.  They  were  ac- 
cordingly charged  under  the  joint  provi- 
sions of  ss.  149  and  325  on  the  ground 
that  they  knew  that  such  an  offence  was 
likely  to  be  committed  in  prosecution  of 
the  common  object  of  the  assembly  The 
three  persons  who  were  convicted  under 
s.  148  were  charged  with  having  commit- 
ted the  rioting  whilst  armed  with  deadly 
weapons. 

Now  the  circumstances  under  which  this 
occurrence  is  alleged  to  have  taken  place 
were  very  simple.  It  is  said  that  on  the 
4th  August  last  the  third  appellant  who 
13  the  eldest  son  of  a  man  named  Sinalal 
Ghoudhry,  went  to  the  village  where 
Sheikh  Mdzhar,  \yho  has  already  been  men- 
tioned, was  a  resident  and  there  demanded 
begari  from  him.  Sheikh  Mazhar,  who  was 


875 


the  headman  of  his  folk  in   that  village 
refused  fUtly  saying     that  he  had  never 
done  begtiri  work  and  did  not  intend  to  do 
so   for  any  malik.    It  is  stated  that  on  this 
refusal    the  3rd   appellant  then    left  the 
place    threatening     Sheikh     Mashar.     On 
the    following     morning    Sheikh     Mazhar 
is  said  to  have  gone    to  his  field  for  the 
purpose  of  ploughing,    taking    with  him 
his  plough    and    bullocks.     Close   by    to 
where  he  was  ploughing  were  his  two  bro- 
thers Sheikh  Jero  (P.  W  No.  1)  and  Sheikh 
Latif  (P.  W.   No  5)  who  were  working  in 
a  field  not    far    away.    It  is  alleged  that 
the  3rd    appellant's    father   Sinalal*    (who 
was  one  of  the  accused    at  the  trial  but 
who  was  acquitted)    accompanied    by  the 
2nd,  3rd  and   4th    appellants    then  came 
up  to  Sheikh  Mazhar  and  demanded  that 
he  should  give  free  labour  and  allow  hia 
plough  and  bullocks    to  be  utilised  there- 
for.   Sheikh  Mazhar,  however,  refused  to 
agree  and  in    consequence   he    was  then 
attacked  by  the    three  appellants  whom  I 
have  mentioned  together  with  a  large  num- 
ber of  other  persons,   the  number  of  per- 
sons in  the  mob  is  variously   estimated  as 
from  15  to  80  persons.    The  2nd    appellant 
is  said  to  have  struck  Sheikh  Mazhar  with 
a   spear;   the  4th    appellant  is  said  to  have 
hit  him  on  the  right  arm  with   a  ganrasa 
and   the  3rd  appellant  to  have  struck  him 
on   the  right  heel    with    a  ganrasa.    His 
two  brothers  Jero  and  Latif   came  to  help 
him  but  they  were  also  knocked  about  and 
another  man  Sheikh  Banwali  who  had  also 
tried  to  assist  them  was  similarly  assaulted. 
Sheikh  Mazhar    sustained    some     serious 
wounds.    His   right   heel  was   apparently 
almost  cut  off;  he  had  also  a  compound  frac- 
ture of  the  right  ulna  bone  and,  in  addition, 
an  incised  wound  2  inches  by  |  inch  and  skin 
deep  on  his  right  arm.    He  was  taken  to  the 
hospital  and    treated    and,    although    no 
doubt  it  could  not  have  been    expected  in 
the  ordinary  course  that  the  wound  which 
he  received  would  prove  fatal,  he  unfortun- 
ately   cDntracted  lock-jaw    and  died  about 
15  days  after  he  had   been  admitted  into 
the  infirmary.    The  other  injured  men   did 
not     sustain  severe   wounds.    On  the  de- 
ceased's brother  Jero  were  some  bruises  and 
he   also  sustained  a   fracture  of    a  finger 
bone  of  the  left  hand;  on  the  deceased's 
brother  Latif  were  some  cuts  on  the  fore- 
head and  neck   whilst  on  Sheikh  Banwali 
were  bruises  and  a  laceration  expoaing   the 
bone  on  the  parietal  region. 


878 


DADRI  OHOUDHRY  V.  EMPEROR. 


[9?  L  0.1986] 


The  learned  Judge  was  assisted  by  five 
Assessors.  The  first  of  these  thought  that 
the  charges  against  the  appellants  had 
bean  proved;  that  out  of  the  16  persons 
originally  accused  14  were  guilty,  he  ex- 
cepting only  two  of  the  accused,  namely, 
Sinalal  the  father  of  the  3rd  appellant 
here  and  one  Bachi  Choudhry,  both  of 
whom  were  men  of  over  middle  age.  The 
other  four  Assessors  did  not  think  that  the 
common  object  which  was  the  basis  of  the 
charges  had  really  been  satisfactorily  made 
out.  They  were  doubtful  whether  the 
reason  which  was  given  by  the  prosecution 
for  the  assault  was  a  true  one  and  they 
seem  to  have  been  under  the  impression 
that  the  quarrel  had  taken  place  about  two 
plots  of  land  which  had  a  long  time  ago 
been  the  property  of  the  deceased  but  which 
had  subsequently  passed  into  the  possession 
of  the  third  appellant's  father.  They  were 
also  doubtful  as  to  who  had  inilicted  the 
injuries  on  the  deceased  and  on  his  bro- 
ther Jero  and  appear  to  have  considered 
that  it  was  possible,  or  indeed  probable, 
that  the  assailants  had  inflicted  whatever 
injuries  were  inflicted  in  exercise  of  some 
right  of  ^private  defence.  The  learned 
Judge,  however,  has  not  taken  that  view. 
He  has  come  to  the  conclusion,  and  I  think 
rightly,  that  the  fltory  which  was  told  by 
the  prosecution  was  substantially  true;  that 
the  real  reason,  or  at  any  rate  the  main 
reason,  for  the  assault  was  the  refusal  by 
the  deceased  to  agree  to  give  forced  labour 
to  the  3rd  appellant's  father;  and  he  has, 
therefore,  disagreeing  with  four  of  the  As- 
sessors and  agreeing  with  one,  come  to  the 
conclusions  to  which  I  have  already  drawn 
attention  and  has  passed  the  sentences 
which  I  have  already  detailed. 

Now,  the  learned  Counsel  who  has  ap- 
peared for  the  appellants  has  said  himself 
that  he  was  in  some  difficulty  in  defining 
the  points  upon  which  he  could  ask  this 
Court  to  come  to  a  conclusion  different  to 
that  which  has  been  arrived  at  by  the  Ses- 
sions Judge.  It  is  true  that  it  is  difficult 
to  find  any  good  reason  which  would  justify 
this  Court  in  saying  that  the  learned  Judge 
was  wrong;  for*  there  were  circumstances 
which  undoubtedly  tended  to  indicate  that 
the  deceased  was  by  no  means  on  good 
terms  with  what  I  may  call  the  Choudhry 
party  as  particularly  represented  by  the 
3rd  appellant  and  his  father.  There  is 
indeed  evidence  to  show  that  the  deceased 
borrowed  money  from  the  3rd  appel- 


lant; that  the  3rd  appellant  had  in  May 
last  year  instituted  a  suit  for  recovery  of 
the  sum  which  had  been  borrowed  from 
him  by  the  deceased  and  that  the  deceased 
had  taken,  what  I  may  call,  the  oppor- 
tunity of  entering  a  written  statement  in 
which  he  flatly  declared  that  the  hand  note 
upon  which  the  3rd  appellant  was  bas- 
ing his  claim  was  a  forgery.  The  hearing 
of  that  case  was  indeed  to  have  started  on 
the  1st  August  last,  that  is  to  say,  a  few 
days  before  this  unfortunate  affair  took 
place.  It  was,  however,  adjourned  until  the 
18th  August  by  which  time  the  deceased 
had  contracted  tetanus  and  was  on  his  death 
bed. 

Now,  the  learned  Counsel  has  as  his  first 
point  strenuously  suggested  that  the  story 
which  was  put  forward  by  the  prosecution 
as  the  occasion  and  cause  of  the  wounding 
of  the  deceased,  his  brothers,  and  Sheikh 
Banwali  was  not  true.  He  has  pointed  out 
that  there  is  a  substantial  difference  bet- 
ween important  features  in  the  First  In- 
formation Report  which  was  laid  by  the 
deceased  man  on  the  5th  August  at  the 
Bahera  Police  Station  and  a  statement 
which  he  subsequently  made  before  a 
Magistrate  on  the  14th  August  when  it 
was  seen  that  his  condition  of  health  owing 
to  his  having  contracted  lock-jaw  was  such 
that  it  was  probable  that  he  would  not 
recover.  The  principal  feature  of  differ- 
ence to  which  very  prominent  attention 
has  been  drawn  by  the  learned  Counsel 
for  the  appellants  is  that  in  the  First 
Information  the  deceased  man  undoubtedly 
states  that  on  the  4th  August  it  was  the  3rd 
appellant  Tirpit  who  had  demanded  forced 
labour  from  him  and  upon  his  refusal  had 
threatened  him  with  serious  consequences  on 
the  following  day.  In  the  statement  made 
by  the  deceased  on  the  14th  August,  it  will 
be  seen  that  the  deceased  man  says  that 
the  occurrence  on  the  4th  August  was  bet- 
ween himself  and  the  father  of  the  3rd 
appellant,  namely,  Sinalal  Choudhry.  The 
learned  Sessions  Judge  evidently  either 
thinks  that  there  has  been  some  mistake 
or  pays  little  attention  to  this  discrepancy, 
I  think  it  is  undoubtedly  a  peculiar  mat- 
ter and  it  is  certainly  remarkable  that  the 
deceased  should  have  in  the  first  instance 
spoken  of  the  son,  (that  is  to  say,  the  3rd 
appellant)  as  having  had  words  with  him 
on  the  4th  August,  and  in  the  second  in- 
stance that  he  should  have  spoken  of  the 
father.  There  is,  however,  this  to  be  said 


BADRI  CHOUDHRY  V.  EMPEROR. 


[92 1.  0. 1926] 

that  there  is  no  doubt  that  in  the  First 
Information  the  deceased  man  speaks  of  the 
"mahk  resident'1  whilst  in  the  statement 
which  he  made  on  the  llth  August,  he 
merely  mentioned  the  name  of  Sinalal,  the 
father  of  the  man  Tirpit  Choudhiy,  the 
3rd  appellant,  whom,  however,  he  did  men- 
tion by  name  in  the  First  Information.  I 
do  not  pretend  to  explain  how  this  differ- 
ence arose  but  at  any  rate  theie  can  be 
no  doubt  that  the  3rd  appellant's  father 
had  only  quite  recently  become  the  mahk 
of  the  deceased  man  who  was  one  of  his 
raiyats. 

The   learned    Counsel  has  also  referred 
to  a  somewhat  remarkable  statement  which 
appears  to   have  been  made  by  one  Genwa 
Dusadh  a   chaukidar   on  the  5th  August  at 
the  Police  Station  at  about  3  P,  M.    It  is 
not   quite    clear  whether  the  chaukidar,  at 
the  time  he  gave  the  information,  was  aware 
that  something    of  the  nature    of   a    dis- 
turbance had    already    taken    place.    But 
what  was     taken     down    in    the    station 
diary  at    the    Bahera  Police    Station  was 
to    the    effect    that    this    chaukidar  had 
arrived  and  reported    that  there    was  an 
apprehension    of    a  breach    of    the  peace 
between  Sheikh  Mazhar  and    Sheikh  Latif 
on    one  side   and    Sinalal  Choudhry  and 
others  on  the  other  side  in  connection  with 
lands.    The  learned  Counsel  has  persistent- 
ly suggested  that  it  was  really  a  dispute 
about  land  and  not  about  began  which  had 
led  up  to  the  affray  and  he  based,    in  the 
first  instance,  one  of  his  arguments  in  this 
direction  upon  what  he  thought  was  the  fact 
that  although  a  number  of  persons  had  ac- 
companied the  deceased  man  to  the  thana 
when  he  gave  the  First  Information,  yet  no 
person  other  than  the  deceased  had    given 
the  names  of  any  of  those  who  were  said  to 
have  attacked  him.  He,  therefore,  suggested 
that  at  that  time  these  persons,  such  as  for 
instance  Jeroand  Latif,  the  brothers  of  the 
deceased,  who  undoubtedly  were  both  injur- 
ed and  were  certainly  present  at    the  oc- 
currence, did  not  know  who  had  attacked 
their  brother  the  deceased  and  subsequently 
Concocted  the  story  which  has  resulted  in 
the    conviction   of  the  present  appellants. 
The  learned  Sessions  Judge  does  not  appear, 
BO  far  as  I  can  gather,  to  have  examined 
carefully  what  these  persons  did    actually 
say  to  the  Head  Constable  who  took  down  the 
First  Information   given  by  the  deceased, 
However,  in  this  Court  we  had  this   docu- 
jnent  examined  and  it  is  found  that  the 


contention  which  was  put  forward  by  the 
learned  Counsel  for  the  appellants  could  not 
be  substantiated,  for  it  is  quite  clear  that 
those  persons  who  were  examined  by  the 
Head  Constable  and  who  purported  to  be  eye- 
witnesses did  in  fact  corroborate  what  had 
been  said  by  the  deceased  in  his  Fiist  Infor- 
mation. This  argument,  therefore,  thatowing 
to  the  lack  of  corroboiative  evidence  at  an 
early  stage  of  the  proceedings  little,  if  any, 
value  can  be  attached  to  the  First  Informa- 
tion itself,  falls  to  the  ground. 

But,  it  is,  I  think,  at  this  stage  not 
unimportant  to  draw  attention  to  the 
somewhat  free  use  which  appears  to  have 
been  made  of  these  statements  to  the 
Police  Officer  It  is  said  that  according 
to  the  recently  amended  provisions  of 
the  Cr.  P.  C.  documents  of  this  character 
can  only  be  used  to  assist  the  accused 
in  particular  by  showing  that  a  witness 
who  in  Court  deposed  to  certain  facts 
has  in  such  a  statement  at  an  earlier 
stage  given  an  account  or  made  statements 
which  are  contradictory  to  the  testimony 
which  he  gives  in  Court.  Here,  in  this  case, 
these  statements  made  to  the  Police  appear 
to  have  been  used  in  cross-examining  the 
witnesses  not  merely  to  show  contradic- 
tions but  at  large;  and  they  have  been  re- 
ferred to  in  this  Court  again  at  large  not 
merely  with  the  idea  of  contradicting  the 
witnesses1  evidence  but  rather  for  the  pur- 
pose of  showing  that  the  statements  did  not 
corroborate  or  assist  the  story  as  put  forward 
in  the  Fiist  Information  Report  J,  therefore, 
must  obseive  that  it  was  only  when  this 
suggestion  that  these  statements  could  thus 
be  utilized  as  a  seiious  attack  upon  the 
truth  of  the  First  Infoimation  wasmade  that 
I  thought  it  desiiable  that  what  had  ac- 
tually been  stated  to  the  Police  Officer  should 
be  seen  and  scrutinised;  and  it  was,  as  I 
have  said,  then  ascertained  that  the  con- 
tention which  was  being  put  forward  was 
not  in  fact  correct.  I  am  not,  however,  satis- 
fied that  the  use  which  was  sought  to  be 
made  of  these  statements,  both  at  the  trial 
and  in  this  Court,  was  justified  by  the  pre- 
sent provisions  of  the  Cr.  P.  C  The  matter, 
however,  need  not  be  pursued  here  further; 
because  although  it  is  suggested,  now  some- 
what naively,  that  this  Court  should  not 
perhaps  have  examined  these  documents 
for  the  purpose  of  scrutinising  them  in 
order  to  see  if  the  argument  put  forward 
by  the  learned  Counsel  for  the  appellants 
was  sustainable,  yet  I  can  only  point  out 


878 


BADSI  CHOUDHR*  V.  BMPEHOB. 


that  the  examination  of  these  statements  by 
this  Court  was  really  rendered  necessary  by 
the  argument  of  the  learned  Counsel  for 
the  appellants;  an  argument  which  perhaps 
should  not  have  been  listened  to.  JNow, 
although  that  point  put  forward  by  the 
learned  Counsel  who  has  appeared  for  the 
appellants  has  thus  failed,  he  has  further 
contended  that  it  is  extremely  unlikely  on 
other  grounds  that  the  attack  could  have 
arisen  on  ace  mnt  of  the  refusal  of  the  de- 
ceased to  agree  to  give  begari  to  the  appel- 
lants* party.  He  suggests  that,  in  view  of 
the  fact  that  there  was  already  litigation  be- 
tween the  3rd  appellant  and  the  deceased 
in  which  the  deceased  had  accused  the  3rd 
appellant  of  basing  a  claim  upon  a  hand- 
note  which  was  forged,  it  was  extremely 
unlikely  that  any  demand  would  be  made  at 
such  a  juncture  agiinst  the  deceased  to  per- 
form any  forced  labour  i'or  his  new  malilc. 
I  do  not,  however,  think  that  this  argument 
is  one  which  is  at  all  convincing  although 
it  is  no  doubt  ingenious.  The  provocative 
attitude,  adopted  with  regard  to  the  suit 
instituted  against  him  for  money  alleged  to 
have  been  lent  by  the  3rd  appellant  to  the 
deceased,  may  well  have  inflamed  the  3rd 
appellant  very  considerably  against  the 
deceased  and  made  him  determined  that 
any  right  or  supposed  right  or  even  shadow 
of  right  which  he  might  have  against  the 
deceased  lie  would  in  no  way  dispense  with. 
It  seems  to  me  that  this  litigation  which 
existed  between  the  3rd  appellant  and  the 
deceased  might  in  itself  indeed  be  one  of 
the  features  which  moved  the  3rd  appellant 
and  his  friends  to  attack  the  deceased  and 
to  make  as  an  excuse  before  attacking  him 
an  insistence  upon  the  demand  for  forced 
labour. 

The  learned  Counsel  as  a  third  point  has 
skilfully  developed  a  somewhat  remote 
but  simple  story  relative  to  the  changes  of 
ownership  of  certain  lands  from  the  hands 
of  the  deceased  party  into  the  hands  of  the 
appellants1  party  and  with  this  history  he 
has  coupled  a  claim,  which  was  undoubt- 
edly made  in  Court  and  a,t  this  trial,  by 
the  deceased's  two  brothers,  Jero  and  Latif, 
to  be  in  possession  still  of  a  certain  portion 
of  this  property  to  which  I  have  made  re- 
ference; and  he  suggests,  and  I  must  admit 
with  a  certain  amount  of  force,  that  under 
these  circumstances  it  is  possible  and  in- 
deed probable  that  what  took  place  did  take 
place  on  account  of  a  squabble  over  this 
land  and  not  on  account  of  any  begari 


[021.0.1926] 

claim.  In  order  to  understand  this  argu- 
ment, which  has  certainly  some  merit,  it  is 
necessary  to  explain  that  a  long  time  ago 
in  1903  there  were  two  plots  of  land  in  this 
Mouza  Nos.  492  and  573.  These  pieces  of 
lands  were  not  contiguous  but  were  not 
very  far  away  from  eaca  other.  These  two 
plots  at  one  time  had  been  given  in  batai  to 
one  Kari  Dhanuk  and  he  had  been  in  pos- 
session of  both  plots  for  a  considerable  time. 
The  plots  of  land  had  originally  belonged 
to  the  deceased  and  his  brothers  and  he, 
that  is,  the  deceased,  had,  whilst  his 
brothers,  Jero  and  Latif,  were  still  minors, 
sold  them.  Jero  and  Latif  being  now 
adults,  that  is  to  say,  having  attained  their 
majority  are,  it  is  suggested,  endeavouring 
to  try  and  got  possession  of  these  two  plots 
of  land  which  were  sold  when  they  were 
minors  by  their  brother.  The  position  of 
the  two  brothers,  Jero  and  Latif,  appears  to 
bs  that  in  the  coursa  of  their  evidence  they 
stated  that  they  were  still  in  possession  of 
plot  No.  573  although  they  did  not  claim  in 
any  way  to  ba  interested  in  the  other  plot 
492.  The  learned  Sessions  Judge  has  un- 
doubtedly come  to  the  conclusion  that 
Latif  and  Jero  are  not  telling  the  truth 
when  they  say  that  they  are  in  possession 
of  plot  No.  573;  and  the  learned  Counsel 
for  the  appellants  has  urged  that  the  two 
brothers  Jero  and  Latif,  although  claiming 
now  to  be  still  in  possession  of  plot  No.  &73, 
are  clever  enough  in  the  present  circum- 
stances not  to  claim  any  right  to  be  also  in 
possession  of  plot  No.  492  upon  or  near 
which  it  is  alleged  that  this  attack  upon  the 
deceased  took  place;  because  they  know  that 
if  they  did  lay  claim  on  their  own  or  their 
brother's  part  to  possession  of  this  plot 
No.  492,  a  presumption  might  at  once  arise 
against  their  story  that  the  occurrence  had 
taken  place  on  account  of  a  claim  against 
their  brother  (and  perhaps  themselves)  for 
begari.  The  learned  Counsel  has  also  stated 
that  in  April  1924  Sinalal,  that  is  the  father 
of  the  3rd  appellant,  had  acquired  some 
property  which  had  been  given  in  usufruc- 
tuary mortgage  to  one  Ram  Kishun  Jha. 
This  consisted  of  Touzi  No.  3390.  There  is 
no  doubt  that  the  3rd  appellant's  father  had 
purchased  this  usufructuary  mortgage  and 
that  on  this  piece  of  land  the  deceased  was 
one  of  the  raiyats.  It  was  suggested, 
although  not  very  seriously,  that  the  dis- 
possessed usufructuary  mortgagee- in-pos- 
session  Ram  Kishun  Jha  had  endeavoured 
tQ  cause  all  or  aome  of  the  accused  to  bs 


[92  L  0. 192&J 

implicated  by  the  deceased  in  the  attack 
upon  himself  or  in  the  fight  which  it  is 
suggested  by  the  learned  Counsel  for  the 
appellants  was  what  actually  took  place. 
Now  the  learned  Counsel  has  asked  the 
pertinent  question  as  to  what  was  the  reason 
for  introducing  the  story  which  was  told 
by  the  two  brothers  of  the  deceased  with 
regard  to  their  claim  to  be  in  possession  of 
this  plot  No.  573  with  which  plot  undoubt- 
edly had  at  one  time  been  associated  plot 
No.  492  upon  or  near  which  the  attack  upon 
the  deceased  is  said  to  have  taken  place? 
The  learned  Counsel  suggests  that  the  real 
truth  of  the  matter  probably  is  that  there 
was  indeed  a  dispute  about  land  and  not 
only  about  this  plot  (plot  No.  573)  but  also 
about  the  plot  with  similar  characteristics 
(plot  No.  492)  and  that  the  view  of  the  case 
which  has  been  taken  by  the  four  Assessors 
with  regard  to  the  real  cause  of  the  affray 
having  been  a  dispute  about  land  and  not 
about  begari  should  have  been  accepted  by 
the  learned  Judge.  It  is  also  contended 
that  in  his  evidence  before  the  Magistrate 
the  Sub-Inspector  of  Police  is  stated  to  have 
testified  that  according  to  his  investigations 
he  became 'under  the  impression  that  the 
dispute  really  had  been  about  land.  This 
piece  of  evidence  or  rather  the  fact  that  this 
Bub-Inspector  had  at  one  time  come  to 
this  conclusion  has  been  stated  to  us  in 
this  Court;  but  it  does  not  appear  from  the 
record  to  have  been  so  stated  before  the 
learned  Judge  nor  does  the  attention  of  the 
Sub-Inspector  himself  appear  to  have  been 
drawn  to  it*  in  cross  examination.  The 
learned  Counsel  further  states  that  the 
Vakil  who  was  appearing  in  the  Court 
below  at  the  trial  did  propose  to  ask  the 
Sub-Inspector  a  question  upon  this  point, 
but  that  the  Sessions  Judge  disallowed  the 
question.  It  is  difficult  to  see  why  he 
should  have  disallowed  it  and  there  is 
certainly  no  record,  so  far  as  I  can  see  in 
the  papers  before  us,  which  would  show 
that  any  such  question  was  proposed  to  be 
asked  or  disallowed  at  all.  Under  such  cir- 
cumstances it  is  difficult  to  say  that  the 
fact  that  the  Sub-Inspector  came  to  this 
conclusion  should  have  had  any  effect  upon 
the  mind  of  the  Court  and  indeed  I  would 
go  further  and  say  that  the  view  which  the 
Sub-Inspector  had  expressed  (if  indeed  he 
did  so)  is  only  a  matter  of  opinion  which 
in  itself  is  not  of  much  evidential  value. 
The  learned  Counsel  for  the  appellants  has 
also  suggested  that  if  this  affray  arose 


BADRI  CHOODHRY  V.  WMPEROR.  879 

merely  out  of  the  claim  of  begari  it  is  hardly 
credible  to  suppose  that  the  3rd  appellant 
was  accompanied  by  a  huge  mob  as  sup- 
poiters  nor  that  such  a  force  was  necessary 
to  overawe  the  recalcitrant  raiyat.  He  urges 
that  the  story  in  its  main  features,  namely, 
that  a  large  mob  of  persons  more  or  less 
armed  came  upon  this  land  in  the  manner 
which  is  detailed  is  much  more  consonant 
with  a  free  fight  and  with  the  chaukidar's 
story  given  at  the  Police  Station  at  Bahera 
at  5  p.  M.  of  the  occurrence  than  with  a  mere 
attempt  to  take  away  the  plough  and  a 
couple  of  oxen  from  the  deceased  Sheikh 
Mazhar. 

There  is  a  good  deal  to  be  said  for  this 
contention  and  the  learned  Counsel  has 
sought  to  increase  the  impression  which. 
his  arguments  have  brought  to  my  mind  by 
reading  a  good  deal  of  the  evidence.  It  is 
impossible,  however,  I  think,  to  arrive  at 
a  conclusion  which  is  different  to  that  to 
which  the  learned  Judge  has  come  unless 
one  is  prepared  to  throw  aside  and  declare 
as  untrue  a  very  large  body  of  evidence 
which  bears  very  forcibly  upon  the  guilt 
of  the  appellants.  The  learned  Counsel  has 
suggested  that,  because  the  learned  Judge 
thought  that  half  of  the  orig-nal  16  accused 
persons  should  be  acquitted,  therefore,  the 
evidence  against  the  other  eight,  being  sub- 
stantially the  same,  they  too  should  have 
been  likewise  acquitted.  But  I  do  not 
think  that  upon  examination  this  argument, 
which  is  in  the  nature  of  a  legal  argument, 
and  which  might,  if  the  facts  were  as 
stated,  be  a  good  argument,  can  be  sup- 
ported, It  seems  to  we  that  if  one  looks  at 
the  evidence  carefully  and  the  learned 
Judge's  reasons  why  he  has  thought  that 
eight  of  the  original  accused  should  not  be 
convicted  and  eight  of  the  original  accused, 
that  is,  the  appellants  before  us,  should  be 
convicted,  it  is  quite  easy  to  see  that  the 
evidence  against  the  different  individuals  is 
not  altogether  identical.  Under  these  cir- 
cumstances I  have  come  to  the  conclusion 
that  it  is  impossible  for  this  Court  to  be 
moved  by  the  arguments  of  the  learned 
Counsel  for  the  appellants  in  such  a  man- 
ner as  to  say  that  the  convictions  .of  these 
appellants  are  incorrect.  I  think  that  the 
case  was  tried  with  considerable  care  and 
that  the  judgment  of  the  learned  Judge 
disposed  of  the  whole  case  satisfactorily  and 
well. 

There  remains  then  the  question  of  en- 
hancement of  the  sentence,  With  regard  to 


880 


BADRI  CHOUDHRY  V.  BMPEROR. 


the  five  appellants  who  have  been  convict- 
ed tinder  s,  147  and  the  combined  provi- 
sions of  SB.  325  and  149,  Indian  Penal  Code, 
and  sentenced  to    three  months1    rigorous 
imprisonment,  1  do  not  see  any  ground  for 
interfering  with  their  sentence.    But  with 
regard  to  the  three  other  appellants,  that  is 
to  say,  appellant  No.  2,  Kishori  Ghoudhry, 
appellant  No.  3,  Tirpit  Choudhry,  and  ap- 
pellant No.  4,  Palat  Choudhry,  the  circum- 
stances are  somewhat  different.   The  reason 
why  distinction  was  drawn  between    these 
three  appellants  and  the  other  five  was  in 
the  first  instance  because  they  were  charged 
under    s.   148  and  were  armed  with  spear  s 
and  other  deadly    weapons.      The  reason 
why  in  the  second  instance  the  case  of   the 
3rd  appellant  was  differentiated  from  those 
of  the  2nd  and  4th  appellants    Kishori  and 
Palat  was  because  he  (Tirpit)  was  admitted- 
ly the  ring  leader  in  the  whole  matter.  He 
represented  his  old  father  who  was  a  man 
of  60  years  of  age  and  was  the    protagonist 
throughout,  and  it  is  also  noticeable  that 
his   animosity    against  the   deceased  was 
certainly  based  upon  some  stronger  motive 
than  that    of  the    others.    I  do  not  think 
that  the  sentence  which  has   been  passed 
is  adequate  in  the  case  of  the  3rd  appellant. 
We  think  that  the  sentence  passed    upon 
him    under     the    combined  provisions  of 
ss.,325  and  149,  Indian  Penal  Code,  should 
be  increased  from    eight   months    to  six- 
teen   months.    In    the    case  of    the    2nd 
and  the  4th  appellants,  Kishori  Choudhry 
and   Palat    Choudhry,  we    think  that    the 
sentences  passed  upon  them  under  the  joint 
provisions  of  ss.  325    and  H9,  Indian  Penal 
Code,  are  also  inadequate  and  should  be 
increased  from  six  months  to  twelvemonths. 
Except  for  these  enhancements  of  sentences 
we  do  not  think  that  there  should  be  any 
further  alteration  and  the  appeals  should 
otherwise  be  dismissed. 

Macpherson,  J.— I  agree  that  this 
appeal  must  be  dismissed  and  that  the  sen- 
tences under  s.  148,  Indian  Penal  Code,  are 
inadequate  and  fall  to  be  enhanced  as  pro- 
posed. 

I  offer  a  few  additional  observations. 

I  agree  generally  with  the  careful  judg- 
ment of  the  learned  Sessions  Judge  except 
in  two  particulars.  The  first  of  these  is  the 

nrtion  of  sentence;  that  has  been  fully 
t  with  in  the  judgment    just  delivered. 
The  second  is  his  interpretation  of  the  new 
B.  162  of  the  Ci.  P.  0.,  and  his  admission  in 
evidence  of  certain  statements  made  to  the 


$2  I.  0. 1926] 

Investigating  Officer  in  the  course  of  the  in- 
vestigation under  Ch.  XIV  of  that  en- 
actment. 

The  effect  of  the  amending  Act  of  J92S 
which  is  very  great,  has  not  yet  been  fully 
appreciated  by  the  subordinate  Courts. 
Before  that  enactment  came  into  operation, 
s.  162  merely  enjoined  that  the  written  re- 
cord of  a  statement  [not  covered  by  s.  32  (1) 
of  the  Indian  Evidence  Act]  made  by  any 
person  to  a  Police  Officer  in  the  course  of  an 
investigation  under  Ch.  XIV  should  not  be 
used  as  evidence.  The  proviso  permitted 
the  statement  itself  to  be  used  in  certain 
circumstances  to  impeach  the  credit  of  the 
maker  when  examined  as  a  witness.  The 
new  Act  has  substituted  a  section  which 
prohibits  the  use  of  any  such  statement  [now 
covered  by  s.  32  (1)  of  the  Indian  Evidence 
Act  1872J  or  any  record  of  it  whether  in  a 
Police  diary  or  otherwise  or  any  part  of  such 
statement  or  record  for  any  purpose  (subject 
to  subsequent  provisions  of  the  Code)  at  any 
inquiry  or  trial  in  respect  of  any  offence 
under  investigation  at  the  time  when  such 
statement  was  made.  The  expression  "for 
any  purpose"  is  very  important  and  there  is 
no  sound  reason  why  it  should  nofc  be  given 
its  full  value.  If  the  Legislature  meant  merely 
to  prohibit  the  use  of  the  writing  as  evidence 
there  was  no  point  in  amending  the  section 
or  substituting  the  present  stringent  sub- 
e.  (1).  It  is  not  merely  use  asevidence  of  the 
statement  or  of  the  record  thereof  that  is 
prohibited  by  sub-s.  (1)  but  use  of  it  for 
any  purpose,  unless  such  use  comes  within 
subsequent  specific  provisions  of  the  Code 
in  that  regard.  There  is  for  all  practical 
purposes  no  such  provision  except  in  the  first 
proviso  to  sub-s.  (I)  andin  sub-s.  (2),  for  s.  162 
governs  also  s.  172  (2).  Sub  8.  (2)  excludes 
from  the  operation  of  the  prohibition  cases 
covered  by  s.  32  (1)  of  the  Evidence  Act, 
which  do  not  require  consideration  in  this 
appeal. 

The  first  proviso  to  a.  162  (1)  makes  an 
exception  in  favour  of  the  accused  but  it  id 
an  exception  most  jealously  circumscribed 
under  the  proviso  itself.  "Any  part  of  such 
statement*1  which  has  been  reduced  to  writ- 
ing may  in  certain  limited  circumstances  be 
used  to  contradict  the  witness  who  made  it. 
The  limitations  are  strict  (1)  only  the  state- 
ment of  a  prosecution  witness  can  be  used  ; 
and  (2)  only  if  it  has  been  reduced  to  writ- 
ing; (3)  only  a  part  of  the  statement  record- 
ed can  be  used;  (4)  such  part  must  be  duly 
proved;  (5)  it  must  be  a  contradiction  of  the 


[02  I.  O.  l92<Jj  BADRI  CHOUI>HUY 

evidence  of  the  witness  in  Court;  (G)  it  must 
be  used  as  provided  in  s.  145  of  the  Indian 
Evidence  Act,  that  is,  it  can  only  be  used 
after  the  attention  of  the  witness  has  been 
drawn  to  it  or  to  those  parts  of  it  which  it  is 
intended  to  use  for  the  purpose  of  contradic- 
tion, and  there  are  other?  Such  a  statement 
which  does  not  contradict  the  testimony  of 
the  witness  cannot  be  proved  in  any  cir- 
cumstances and  it  is  not  permissible  to  use 
the  recorded  statement  as  a  whole  to  show 
that  the  witness  did  not  say  something  to 
the  investigating  officer. 

Unquestionably  the  new  sub-section  has 
greatly  enhanced  the  difficulty  of  trials  be- 
cause it  excludes  much  that  was  previously 
admissible  as  evidence  on  which  the  Couits 
were  accustomed  to  rely  It  is  unfavourable 
to  the  prosecution  and  to  a  less,  but  still 
considerable,  extent  to  the  defence.  Expen- 
ence  points  to  the  conclusion  that  theCourts 
do  apply  the  provisions  against  the  prosecu- 
tion but  fail  to  do  so  against  the  defence.  It  is, 
however,  not asuflicient ground  for  deviating 
from  what  is  intended  to  be  a  rigid  rule  that 
such  deviation  will  favour  the  accused.  It 
is  incumbent  on  Court  loyally  to  observe  the 
prohibition  of  the  Legislature  in  all  cases 
where  it  is  applicable.  The  Legislature  has 
employed  firm  language  palpably  intended 
to  make  a  clean  sweep  of  the  use  at  a  tiial 
of  any  statement  to  the  Police  during  the 
investigation  not  only  in  evidence  but  for 
any  purpose  not  covered  by  subsequent  pro- 
visions of  the  Code  which  provisions  make 
but  one  exceedingly  restricted  exception. 
The  danger  of  endeavouring  to  temper  this 
provision  in  favour  of  the  defence  and  to 
widen  the  exception  is  illustrated  by  the  pre- 
sent case.  In  the  cross-examination  of  the 
Head  Constable,  BirPrasad.evidencehasbeen 
admitted  of  statements  to  the  witness  of  five 
prosecution  witnesses  who  accompanied  the 
deceased  Sheikh  Mazhar  to  the  thana  and 
who  were  examined  by  him  at  the  outset  of 
the  Police  investigation.  Among  them  arc 
several  statements  which  are  not  admissible 
under  the  proviso  to  s.  182  ( t)  or  otherwise. 
Upon  them  the  learned  Sessions  Judge 
founded  the  remark  in  his  judgment:  "None 
of  the  other  witnesses  told  him  that  night 
as  to  who  were  the  assailants  of  Mazhar," 
which  on  the  record  of  the  trial  could  only 
have  been  arrived  at  by  an  inadmissible  use 
of  the  record  of  the  examination  under  s.  161. 
If  the  inadmissible  evidence  be  eliminated 
from  consideration,  as  it  must  be,  there  is 
no  warrant  in  the  record  for  the  remark 

W 


0,  EMPEROR,  SSI 

which  indeed  substantially  misrepresents  the 
position.  Learned  Counsel  has  urged  that 
tho  question  of  re- trial  should  be  considered 
berause  of  the  improper  admission  of  such 
evidence.  But  under  a.  167  of  the  Indian 
Evidence  Act  the  improper  admission  of 
evidence  is  not  of  iteelf  a  ground  for  a  new 
trial  or  reveisal  of  a  decision  in  a  case,  if  it 
appears  to  the  Court  that  independently  of 
that  evidence  there  was  sufficient  evidence 
to  justify  the  decision.  In  the  present  in- 
stance the  evidence  improperly  admitted 
was  favourable  to  the  appellants  and  the 
elimination  thereof  only  makes  more  inevit- 
able the  decision  against  them.  In  reaching 
this  conclusion  no  use  of  the  Police  diaries 
is  made  which  is  not  warranted  by  s.  172  of 
the  Cr.  P.  0.  or  in  accordance  with  the  views 
expressed  by  the  Judicial  Committee  in 
the  case  of  Dal  Singh  v.  Emperor  (1),  The 
only  use  to  which  these  diaries  can  be  put 
is  to  aid  the  Court  in  an  inquiry  or  trial. 
Learned  Counsel  is  aware  of  the  contents  of 
the  record  of  the  examination  of  the  wit- 
nesses under  s.  1G1  and  is  unable  to  con- 
tend that  a  fuller  untilisation  of  them  in 
evidence  within  the  limits  of  the  law  would 
at  all  improve  the  case  for  the  appellants. 

I  only  refer  very  briefly  to  the  arguments 
as  they  have  been  fully  discussed  in  the 
judgment  just  delivered.  Learned  Counsel 
asked  for  an  acquittal  in  the  first  place  and 
mainly  011  the  contention  that  the  common 
object  set  out  in  the  charge,  to  wit,  to  take 
began  from  Sheikh  Mazhar  had  no  found- 
ation in  fact,  but  was  an  invention.  He 
urged  that  as  the  occurrence  clearly  took 
place  within  a  short  distance  of  plot  No. 
492  it  must  have  arisen  out  of  rival  claims 
of  the  deceased  Sheikh  Mazhar  and  the 
appellants  to  that  plot.  In  my  opinion 
such  is  not  the  case  There  is  good  evidence 
that  the  Chaudhuris,  and  in  particular  Tir- 
pit  the  son  of  Sinalal  Chaudhuri  demanded 
began  from  Sheikh  Mazhar  on  the  4th 
August  Next  day  Tirpit  certainly  got  to- 
gether a  mob  early  in  the  morning  and  in- 
structed the  chaukidar  to  give  a  mendacious' 
report  at  the  ihana.  There  were  several 
sources  of  ill  feeling.  Net  the  least  was  a 
Small  Cause  Court  suit  instituted  by  Tirpit 
against  the  deceased  in  which  the  latter 

(1)  39  Ind  Caa  311,  44  C  876,  15  A  L.  J  475;  1 
P  L  W.C61;  19  Bom  L  R  510,  21  C.  W.  N  818;  26 
C  L  J  13,  6L  W  71,  22  M  L  T.  31,  (1917)  M.  W. 
N  522,  18  Cr  L.  J.  471;  86  L  J  P  140;  33  M.  L,  J, 
555;  11 13nr  L,  T.  54;  13  N  L  R.  100:  44  I.  A,  137: 
110  L,  T,  02J;  Gl  &  J,  351;  33  T,  L,  B,  $49  (P,  0,). 


882 


CHiRAN  V. 


filed  a  written    statement  stigmatising  the 
handnote  sued  upon  as  a  forgery  and  which 
had  been  adjourned  on  1st  August  though  de- 
fendant was  ready.  Then  the  younger  brothers 
of  deceased  were  contending  that  they  were 
not  bound  by  the  sale  by  Sheikh  Mazhar  in 
1903  during  their  minority  of  plots  Nos.  492 
and  573  to  Kari  Dhanuk,  alleged  to  be  the 
benamidar  of  Sinalal  Ohaudhuri.    But  the 
main  cause  of  ill-feeling  lay  in  the  claim  to 
begari  which  was  not  enforceable  in  a  Court, 
but  yet  was  very  important    to  the    Chaud- 
huris.    Sinalal  Chaudhuri  is  a  new  malik  in 
LUpur,  and  by  his  recent  purchase  Mazhar 
and  other  Musulmans  of  that  village  had  be- 
come his  raiyats.    Hfc  owns  a  large  area  of 
zirat  in  his  residential  village    of  Ladiami 
and   several  other    neighbouring  villages. 
Though  Sinalal  has  no  zirat  or  any  land  in 
direct  occupation  in  Lilpur  he  may  well  be 
believed  to  have  been  anxious  to  secure,  in 
accordance  with  the  usage  (illegal  though 
it  is)  of  the   country,  begari  from  new  rai- 
yats  who  are  not  of  high  caste.    The  deceased 
Sheikh    Mazhar   was  the   sarghana  of  the 
Musulmans.  It  stands  to  reason  that  if  Sina- 
lal broke  down  the  resistance  of  the  headman , 
the  others  if  not  completely  cowed,  could  be 
subdued  without  difficulty.    There  is,  there- 
fore, no  inherent  improbability  in  the  com- 
mon object  set  out  in  the  charge  though  ad- 
ditional vigour  may  have  been  given  to  the 
animus  of  Tirpit  by  the  other  considerations 
mentioned.    It  was,  I  think,  purely  fortuit- 
ous that  the  occurrence  took  place  not  far 
from  plot  No.  492.    It  is  palpable  that  that 
plot  has  been  in  possession^  of  Kari  Dhanuk 
since  the  sale  in  1903  and  throughout  the 
trial  Jero  and  Latif,  brothers  of   deceased, 
have  disclaimed  any  right  to  the  plot,  while 
plot  Nos.  573,  which  they  do  claim,  is  far  dis- 
tant from  the  scene  of  occurrence  and  admitt- 
edly was  not  the  source  of  the  affray.  To  my 
mind  the  learned  Sessions  Judge  is  entirely 
correct  in  accepting  the   direct  and  positive 
evidence  as  to  the  occurrence  and  the  occa- 
sion thereof  which  has  been  furnished  by  a 
large  number  of  witnesses  who,  according  to 
their  perfectly   credible  story   were  in  their 
own  fields  close  to  the  place  of  occurrence 
and  who  have  not   been  broken  down  in 
cross-examination.     The  case  is  one  of  a 
class  in  which  the  views  of  the  Assessors  are 
generally  of  little  value  and   they  in  fact 
followed  communal  lines. 

In  my  judgment  all  arguments  on  behalf 
of  the  appellants  fail  and  the  decision  under 
lippeal  must  be  maintained,  with  the  excep- 


tion of  the  three  sentences  which  mus.t  be 
enhanced   as    proposed    by     my    learned 
brother, 
z.  K.  Appeal  partly  dismissed. 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  REVISION  No.  661  OP  1925. 

Decembers,  1925. 
Present: — Mr.  Justice  Sulaiman. 
RAM  CHARAN— ACCUSBD — APPLICANT 

versus 
EMPEROR— OPPOSITE  PARTY, 

Criminal  Procedure  Code  (Act  V  of  1898),  s.  110— 
Security  for  good  behaviour — Procedure — Inquiry  - 
Duty  of  Magistrate. 

In  a  case  under  s  110,  Or  P.  C ,  it  is  the  duty  of 
the  Magistrate  to  hold  an  independent  enquiry  and 
not  to  bind  over  an  accused  person  merely  because  he 
agrees  to  furnish  security,  [p.  883,  col,  1  ] 

Criminal  revision  trom  an  order  of  the 
Sessions  Judge,  Aligarh,  dated  the  3rd 
October  1925. 

Mr.  Sailanath  Mukerjit  for  the  Applicant. 
The  Assistant  Government  Advocate,  for 
the  Grown. 

JUDGMENT.— This  is  a  criminal  re- 
vision from  an  order  dismissing  an  appeal 
in  s.  110  case.  The  accused  along  with 
several  other  persons  was  tried  under  s.  110 
of  the  Cr.  P.  0.  After  the  evidence  of  a 
number  of  prosecution  witnesses  including 
Civil  and  Military  Officers  had  been  record- 
ed, the  accused  was  asked  by  the  Magis- 
trate why  he  should  not  be  bound  down. 
The  reply  of  the  accused  was  "I  have  no  ob- 
jection. I  shall  furnish  security.  I  have  never 
been  convicted  before.  I  shall  produce  no 
defence  evidence.  I  have  no  witnesses.'1  The 
Magistrate,  however,  examined  more  wit- 
nesses and  did  not  take  the  statement  to 
be  a  plea  of  guilty.  He  held  on  the  evi- 
dence that  a  good  case  had  been  made  out 
for  an  order  under  that  section. 

The  accused  appealed  to  the  Sessions 
Judge.  The  learned  Sessions  Judge  deal- 
ing with  the  case  of  this  particular  appli- 
cant remarked  as  follows : — **There  is  no 
force  in  the  appeal  of  Ram  Gharan,  Yadram 
and  Bhabhuti  inasmuch  as  all  three  of  them 
expressed  their  willingness  to  furnish  se- 
curity for  their  good  behaviour  and  produced 
no  defence*  This  was  tantamount  to  a  plea 
of  guilty  after  evidence  of  several  witnesses 
had  been  recorded  against  the  appellants. 
I  dismiss  the  appeal  of  these  three  men," 


1  0,  1926] 


CHABiARI  SlNOlt  V.  PUBLIC  P ROSEOUTOft 


It  is  apparent  that  the  learned  Judge  hav- 
ing come  to  the  conclusion  that  the  state- 
ment of  the  accused  persons  amounted  to 
a  plea  of  guilty  did  not  consider  the  appeal 
on  its  merits  and  did  not  examine  the  pro- 
secution evidence  and  come  to  an  independ- 
ent conclusion  of  his  own.  The  question 
raised  in  this  revision  is  that  the  learned 
Judge  was  in  error  in  treating  the  willing- 
ness of  the  accused  to  furnish  security  as 
amounting  to  a  plea  of  guilty. 

In  cases  arising  under  s.  107,  Cr.P.  C.,  it  has 
been  held  time  after  number  that  the  Magis- 
trate should  hold  an  independent  enquiry 
and  should  not  act  on  the  mere  readiness  of 
the  accused  to  furnish  security.  I  may  only 
refer  to  the  cases  of  Mul  Chand  v.  Emperor 
(1),  Chander  Shekhar  v.  Emperor  (2)  and 
Jagdat  Tetvari  v.  Emperor  (3).  In  principle 
there  is  no  distinction  between  trials  under 
s.  107  and  trials  under  s.  llO.  In  either  case 
it  is  the  duty  of  the  Magistrate  to  hold 
an  enquiry  of  the  offence  and  not  to  bind  an 
accused  person  merely  because  he  agrees  to 
furnish  security. 

I  find,  however,  that  the  Magistrate  did 
hold  an  enquiry  and  did  record  'evidence. 
All  that  has  happened  is  that  the  appeal  of 
the  accused  applicant  has  not  been  consider- 
ed on  its  merits  by  the  learned  Sessions 
Judge.  I  cannot,  therefore,  interfere  with 
the  order  of  the  Trying  Magistrate  but 
setting  aside  the  order  passed  on  appeal 
direct  that  the  case  be  sent  back  to  the 
Court  of  the  learned  Sessions  Judge  of 
Aligarh  in  order  that  it  be  restored  to  its 
original  numbw  on  the  file  and  be  disposed 
of  according  to  law. 

z.  K.  *  Case  sent  bock. 

(1)  26  Ind.  Gas,  653,  37  A.  30,   12  A  L,  J  12j2,  16 
Or.  L  J   61 

(2)  54  lad.  Cas  411,  21  Or  L  J   59 

(3)  54  Ind,  (Jaa.  781,  2  U.  P,  L  R  (A  )  38;  21  Cr  L. 
J.  170. 


PATNA  HIGH  COURT. 

CRIMINAL  APPEAL  No  222  OF  1924. 

January  26,  1925. 

Present:  -Justice  Sir  B.  K  Mullick,  KT,, 

and  Justice  Sir  John  Bucknill,  KT. 

CHAMARL  SINGH  AND  OTHERS— 

ACCUSJBD— APPELLANTS 

versus 
THB  PUBLIC  PROSECUTOR  OP  GAYA 

AND  OTHERS — RESPONDENTS. 
Criminal  Procedure  Cvde  (Act  V  of  im),  w,  479  > 


883 

'--Complaint   of   offence — Preliminary  enquiry, 
extent  of — Appellate  Court,  interference  by. 

The  grant  of  a  right  of  appeal  against  an  order 
making  a  complaint  under  a  476  of  the  Oi.  P.  C  has 
not  conlerred  any  now  right  upon  the  person  against 
whom  a  complaint  is  made  and  the  extent  of  the  pic- 
hmmary  enquiry  to  bo  made  under  s.  476  is  still  left 
to  the  discretion  of  the  Court  If  a  prima  facie  case 
has  been  made  out  the  Appellate  Court  ought  not  to 
interfere  with  the  order  of  a  lower  Court  making  a 
complaint  [p.  884,  cols.  1  &  2.] 

Criminal  appeal  from  an  order  of  the 
Sessions  Judge,  Gaya,  dated  the  5th  No- 
vember 1924. 

Mr.  Manohar  Lai,  for  the  Appellants. 

The  Assistant  Government  Advocate,  for 
the  Respondents. 

JUDGMENT. 

Mullick,  J.— On  the  25th  May  1923  the 
appellants  Nos.  1  to  15  are  alleged  to  have 
filed  a  petition  before  the  Subordinate 
Judge  of  Gaya  asking  for  certain  reliefs 
under  s.  83  of  the  Transfer  of  Property  Act. 
With  that  petition  the  appellants  filed  two 
documents  :  (1)  a  mukarrari  deed  of  1811 
and  (2)  a  usufructuary  mortgage  of  1833, 
It  is  alleged  that  both  these  documents 
were  forgeries  and  that  the  appellants  dis- 
honestly used  these  documents  as  genuine 
knowing  them  to  be  forged.  Twenty- one 
other  persons  also  joined  in  the  petition  but 
it  has  now  been  decided  that  they  are  not  to 
be  prosecuted  and  they  are  not  now  before 
us. 

It  is  alleged  that  in  1923  these  appellants 
who  claim  as  mukarraridars  under  a  deed 
of  ISllexecuteda  dar-mukarranin  favour  of 
the  appellant  No  16,  Musammat  Nageehwar, 
and  tluit  she  also  joined  in  the  application  to 
redeem  the  usufructuary  mortgage  of  1833. 
She  is  a  par  danashin  lady  and  has  a  hus- 
band and  two  sons  who  assisted  her  in  get- 
ting the  dar- mukarrari  kabuliyat  register- 
ed before  the  Registrar.  When  the  applica* 
tion  under  s.  63  of  the  Transfer  of  Pro- 
perty Act  came  on  for  hearing,  the  alleged 
mortgagee,  the  proprietress  of  the  7-anna 
Tikari  Raj  stated  that  there  was  no 
mukarrari  ordar-mukarrari  or  usufructuary 
mortgage  encumbering  the  estate,  and  the 
Subordinate  Judge  accordingly  declined 
to  order  the  redemption  of  the  eerpeshgi 
mortgage  and  dismissed  the  application. 

Thereupon  one  of  the  servants  of  the  pro- 
prietress applied  to  the  Subordinate  Judge 
for  the  prosecution  of  the  37  persons  who 
were  party  to  the  petition  of  the  25th  May 
1923  and  also  of  Musammat  Nageshwar 
Koer's  husband  and  her  two  sons, 


881 


upon  certain  proceedings  followed  into  the 
history  of  which  it  is  not  necessary  to  enter; 
but  the  result  was  that  the  District  Judge 
tapon  an  application  made  by  the  Public 
Prosecutor  of  Gaya  ordered  the  prosecution 
of  the  37  persons  who  were  party  to  the 
petition  of  1923  as  well  as  of  the  husband 
and  two  sons  of  Musammat  Nageshwar  Koer 
for  offences  under  ss.  471  and  467,  Indian 
Penal  Code, 

There  was  then  an  appeal  1o  this  Couit 
and  a  Division  Bench  on  the  18th  June  1^24* 
set  aside  the  order  of  the  District  Judge 
and  directed  further  inquiry  as  to  the  com- 
plicity of  each  accused. 

That  inquiry  has  been  made  and  the 
learned  Judge  has  revised  his  former  order 
and  has  discharged  all  but  the  present 
appellants  Nos.  1  to  19. 

It  is  now  urged  that  the  learned  Judge 
has  made  no  inquiry  at  all  and  that  he  has 
not  done  what  the  Court  required  him  to  do. 

It  appears  that  the  District  Judge  has 
discharged  all  the  minor  accused.  As  to 
seven  others,  he  found  that  two  had  died 
and  that  five  had  not  signed  the  vakalat- 
nama  which  was  given  to  the  Pleader  who 
was  instructed  to  file  the  two  forged  docu- 
ments; and  he  has  now  made  a  complaint 
against  the  19  appellants  only.  It  is  con- 
tended that  further  evidence  is  required  to 
show  that  the  appellants  knew  that  the 
documents  were  forged  and  that  they  used 
them.  There  is  certainly  a  prima  facie 
case  that  the  documents  are  forgeries;  for 
the  former  Raja  of  Tikari,  who  is  alleged  to 
have  given  the  mukarrari  and  also  the  Raja 
in  favour  of  whom  the  usufructuary  mort- 
gage is  alleged  to  have  been  executed,  weie 
not  alive  on  the  dates  on  which  the  docu- 
ments were  executed.  As  regards  the 
adult  mukarraridars,  i.e.,  appellants  Nos.  1 
to  14,  it  is  clear  that  the  District  Judge 
was  of  opinion  that  they  knew  that  they  had 
not  a  shadow  of  a  title  and  that  they  filed 
or  instigated  the  filing  of  the  documents 
knowing  that  they  were  forged.  In  the 
circumstances  he  was  justified  in  taking 
proceedings  against  them  under  s.  47fi, 
C.  P.  0,  The  law  does  not  compel  him  to 
make  a  detailed  inquiry  and  as  he  has 
considered  the  case  of  each  of  these  appel- 
lants he  has,  in  my  opinion,  complied  with 
the  orders  of  the  Division  Bench.  The 
grant  of  a  right  of  appeal  has,  in  my  opinion, 
not  conferred  any  new  right  upon  the 
accused  and  the  extent  of  the  preliminary 
•"  ~  ~ 


OHAMABI  SINGH  v.  PUBLIC  PROSECUTOR,  [92  L  0, 1926] 

\nqmiy  is  still  left  to  the  discretion  of  the 


Court.  If  a  prima  facie  case  has  been 
made  out  the  Appeal  Court  ought  not  to 
interfere.  In  this  case  the  Court  has  made 
an  inquiry  as  regards  these  14  accused  and 
has  made  a  complaint  to  a  First  Class 
Magistrate  in  order  that  the  Magistrate 
may  follow  the  procedure  of  s.  202  or  pro- 
ceed otherwise  according  to  law.  The 
learned  Judge  evidently  intended  that  the 
Magistrate,  if  satisfied  that  process  should 
issue,  should  call  upon  the  Public  PJO- 
seculorto  produce  his  evidence  before  him 
and  then  either  dispose  of  the  case  himself 
or  commit  it  for  trial. 

We  think,  however,  that  some  revision  of 
the  learned  Judge's  order  is  required  as 
regards  appellants  Nos.  15,  16,  17, 18  and  Itf, 
Musammat  Nageshwar  Koer,  appellant 
No.  16,  being  a  pard&nashin  lady,  cannot 
be  expected  to  have  had  any  knowledge  of 
the  nature  of  the  documents  or  to  have 
taken  any  part  in  filing  them  in  Court  and, 
thei efore,  we  do  not  think  that  there  is  at 
this  stage  a  sufficient  prima  facie  case 
against  her. 

It  also  appears  that  appellant  No.  15  is  a 
minor  and  his  name  also  should  be  excluded. 

With  regard  to  the  appellant  No.  17,  who 
is  the  husband  of  Musammat  Nageshwar 
Koer,  and  appellants  Nos.  18  and  19,  who 
are  her  two  sons,  the  learned  Judge  does 
not  state  what  evidence  there  is  of  their 
complicity.  The  learned  Assistant  Govern- 
ment Advocate  has  informed  us  that  it  is 
proposed  to  lay  a  charge  of  conspiracy 
against  them  under  s.  120- B  of  the  Indian 
Penal  Code  and  also  of  abetment,  but  there 
is  nothing  on  (he  record  io  indicate  whe- 
ther there  is  any  prima  facie  evidence 
against  them.  An  application  has  been 
shown  to  us  which  was  made  by  the  Public 
Prosecutor  in  the  Court  of  the  Distiict 
Judge  on  the  llth  of  February  1924  afekirig 
the  District  Judge  to  examine  certain 
Stresses  and  documents  in  order  to  connect 
appellants  Nee,  17,  ]8  and  19  with  the 
other  accused.  The  learned  Judge  dec- 
Ijned  to  take  that  evidence.  The  de- 
cision vas  unfortunate  and  as  there  has 
been  also  no  further  inquiry  in  regard  to 
these  accused  eince  the  Division  Bench 
remanded  the  case,  we  direct  that  the 
inquiry  before  the  Magistrate  be  confined 
for  the  present  to  petitioners  Nos.  1  to  14. 
If  the  Public  Prosecutor  considers  "it 
necessary  to  proceed  against  appellants 
NOB.  17, 18  and  19,  he  ie  at  liberty  to  make 


PARMESIUR  LILT,  V.  EMPEROR. 


[92 1,  0. 1926] 

a  fresh  application  to  the  District  Judge 
who  after  making  such  further  inquiry  as 
he  may  consider  necessary  will  decide  whe- 
ther or  not  their  case  also  should  be  re- 
ferred under  s.  476  to  the  Magistrate  for 
trial  along  with  the  other  petitioner. 

Bucknlll,  J.~ I  agree. 

3.  K,  Order  accordingly. 


PATNA  HIGH  COURT. 

CRIMINAL  APPEAL  No  227  OF  1924 

January  20,  1925. 

Present: — Justice  Sir  B  K,  Mullick,  KT  , 
and  Justice  Sir  John  Bucknill,  KT. 
PARMESHAR  LALL— ACCUSED— 
APPELLANT 

versus 
EMPEROR—RESPONDENT 

Penal  Code  (Act  XLV  of  I860),  s  211— False  charge 
made  before  Police —Offence 

Where  a  person  makes  a  report  to  the  Polio  •  de- 
liberately but  falsely  chaigm#  another  with  having 
committed  anoffsnce  with  the  intention  that  the  Police 
should  4>ut  that  person  on  his  tual,  he  is  guilty  of 
an  offence  under  8  211  of  the  Penal  Code  |_p  8^7,  col 
1] 

A  charge  laid  before  the  Police  amounts  to  the 
institution  of  a  criminal  pioc^pdmq  within  the  mean- 
ing of  the  latter  pait  of  s  211  of  tho  Penal  Code 
[ibid] 

Queen-Empress  v  Bisheshar,  16  A  124,  A  W  N 
(1894)  10,  8  Ind  D33  (N  s  )  89,  dissented  from 

Kanm  Buksh  v  Queen- Kmpizsi>t  170  o7l,  8  Ind 
Dec  (N  B  )  92  J  (F  B  j,  iclicd  on 

Criminal  appeal  fiorn  a  decision  of  Row- 
land, J.  0 ,  Ctota  Nagpur,  dated  the  2nd 
December  1924. 

Messrs.  K.  P.  Jayasival  and  Kailashpj.ti, 
for  the  Appellant. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT. 

Mullick,  J.— On  the  22nd  of  May  last 
the  appellant  Parmeshwar  Lai  laid  an  in- 
formation before  the  Sub-Inspector  of 
Police  at  Daltonganj  charging  one  Munsaf 
Earn  with  having  set  fire  to  a  hut  belong- 
ing to  the  appellant's  master  Gajadhar 
Prasad  with  the  intention  of  causing  wrong- 
ful loss.  The  case  was  investigated  and 
was  found  to  be  false.  A  complaint  was 
then  lodged  by  the  Sub -Inspector  in  the 
Court  of  the  Magistrate  of  Daltonganj 
against  the  appellant  for  an  offence  under 
s.  211,  Indian  Penal  Code,  with  the  result 
that  the  appellant  was  committed  to  the 
Court  of  Session  and  was  convicted  by  the 
Judge  of  an  offence  under  the 


835 


latter  part  of  s.  211,  Indian  Penal  Code,  and 
sentenced  to  rigorous  imprisonment  for 
four  years.  One  of  the  Assessors  returned 
a  verdict  of  guilty  while  the  other  three 
were  of  opinion  that  the  case  was  doubt- 
ful. 

The  appellant  lives  in  the  Qaya  District 
and  his  master  Gajadhar  Prasad  who  also 
resides  in  that  district  appears  to  have 
assisted  the  Rani  of  Deo  who  is  the  niece 
of  one  Thakurai  J&gat  Prasad  Singh  of 
Mouza  Burhibir  in  the  Palamau  District 
in  a  litigation  with  her  husband,  the  Raja 
of  Deo.  That  litigation  was  eventually 
settled  by  the  Raja's  making  over  a  pro- 
perty worth  Rs  5,UOO  per  annum  to  the 
Rani  and  paying  a  sum  of  Rs.  10,000  in 
cash  to  Gajadhar  Prasad.  Subsequently 
Gajadhar  Prasad  lent  money  to  Thakurai 
Jagat  Prasad  in  a  litigation  with  his  brother 
Ramsunder  and  took  from  Jagat  Prasad 
a  zerpeshgi  of  a  2-anna  8-pies  share  in 
certain  mo uzas  of  which  Burhibir  was  one. 
In  consequence  of  Gajadhar  Prasad's  realis- 
ing the  rent  of  a  5  anna  4  pies  share  of 
the  villages  instead  of  2-annas  8-pies 
share  disputes  arose  between  him  and  Jaga 
Prasad  in  or  about  September  1923  and 
Ramsnnder  having  by  this  time  settled 
his  dispute  with  Jagat  Prasad  and  joined 
Jagat  Prasad  in  resisting  Gajadhar,  a  com- 
plaint was  lodged  by  one  of  the  servants 
of  Gajadhar  against  Ramsunder  and  his 
servants  alleging  that  they  were  threaten- 
ing a  breach  of  the  peace  and  requesting 
that  action  should  be  taken  to  bind  them 
down.  Murisaf  Ram  was  one  of  the  persons 
thus  complained  against.  In  consequence 
of  that  com  plaint  Ihe  Sub-Inspector  of  Police 
at  Daltonganj  which  is  eight  miles  from 
Burhibir  stationed  constable  Ramgulam 
Tewari  at  Burhibir  to  see  that  no  breach 
of  the  peace  took  place  between  Gajadhar's 
men  and  Ramsunder's  men,  The  con- 
stable who  had  taken  up  his  residence  in 
the  village  about  ten  days  earlier  states 
that  on  the  day  of  the  fire  he  cooked  his 
food  at  an  open  chulha  (fire  place;  near 
the  hut  in  question  and  after  pouiing 
some  water  on  the  fire  he  went  to  rest  in  a 
Thakurbari  (temple)  of  Jagat  Prasad.  About 
3  P  M  a  dust  storm  arose  and  immediate- 
ly afterwards  he  saw  the  hut  in  flames  , 
among  others  Munsaf  Ram  caine  to  the 
place  but  the  appellant  Parmeshwar  Lai 
was  not  in  the  village  at  all  that  day. 

Prosecution  witness    Ram  Lai  Singh,  a 
peon  in  the  service  of  the  Rani  of  Deo  who 


was  at  the  time  residing  with  her  uncle 
Jagat  Prasad,  had  been  sleeping  in  the  hut 
after  his  mid  day  meal.  He  says  that  about 
4  p  M.  he  got  up  and  went  to  wash  his 
face.  Then  came  the  dust  storm  and  imme- 
diately afterwards  he  found  that  the  hut 
was  on  fire.  He  suggests  that  the  fire  came 
from  the  embers  in  the  open  fire  place 
where  he  had  cooked  his  food  and  near 
which  there  was  a  quantity  of  jute  sticks. 
He  says  that  Munsaf  Ram  arrived  after  the 
hut  was  completely  burnt  out  or  about  five 
minutes  after  the  fire  began,  and  that  he 
assisted  in  extinguishing  the  fire  in  a  neigh- 
bouring house,  namely,  that  of  Nanki  Dusa- 
din,  to  which  the  fire  had  spread. 

Ram  Lai  is  corroborated  by  Jawadhan 
whose  house  is  immediately  east  of  the 
hut. 

Surajnath  Pathak,  who  is  Jagat  Prasad's 
priest  and  was  in  the  Thakurbari  about  30 
paces  to  the  west,  Ramdhari  Lohar,  Jamal- 
uddin,  the  grandson  of  Jawadhan  and 
Musammat  Nanki  also  corroborate  Ram  Lai, 
All  these  witnesses  prove  that  Munsaf 
Ram  did  not  set  fire  to  the  hut,  came  after 
the  fire  began  and  that  he  assisted  in  put- 
ting it  out. 

The  witness  Lalji  proves  that  at  the 
time  of  the  fire  Munsaf  Ram  was  working 
with  other  coolies  at  a  wall  which  was 
being  built  for  his  master  Ramsunder 
Singh  to  the  west  of  the  hut  and  that  on 
hearing  shouts  of  fire  Munsaf  ran  to  the 
place,  and  that  he  returned  about  half  an 
hour  later,  This  witness  states  that  the 
hut  is  some  distance  from  where  he  was 
working  and  that  he  did  not  go  to  it. 

In  my  opinion  the  learned  Sessions  Judge 
was  right  in  holding  that  Munsaf  did  not 
set  fire  to  the  hut  and  that  the  appellant's 
information  to  the  Police  was  maliciously 
false. 

With  regard  to  the  ownership  of  the  hut, 
the  evidence  is  that  it  was  built  by  the 
Rani's  men  with  wood,  straw  and  leaves 
taken  from  Jagat  Prasad's  jungle.  At 
that  time  the  Rani  had  already  given  Gaja- 
dhar Prasad  the  managership  of  her  pro- 
perties in  the  Gaya  District  and  the  prose- 
cution witnesses  seem  to  have  looked  upon 
the  Rani's  servants  as  Gajadhar's  servants. 
It  appears  that  after  Gajadhar  obtained  fhe 
zerpeshgi  from  Jagat  Prasad  he  appointed 
one  Audh  Behari  as  his  Devan  at  Burhibir 
for  making  collections.  About  eight  days 
before  the  fire  the  appellant  Parrneshwar 
succeeded  Audh  Behari.  The  hut  in  question 


LALL  V>  EMPEROR,  (09  I,  0.  1926} 

was  built  about  two  months  before  the  fire, 
Gajadhar's  own  servants  used  at  first  to 
livei  in  a  tent,  but  after  the  hut  was  built 
Rai^i  Lai  Singh  and  Bulaki  Singh  two  peons 
of  tjhe  Rani,  and  Jhari  Singh,  the  Tahsildar 
of  Gajadhar  used  to  sleep  in  it.  Ram  Lai 
says\that  he  used  at  first  to  sleep  in  a  room 
in  J^gat  Prasad's  house  which  is  to  the 
west  but  owing  to  shortness  of  accommoda- 
tion he  came  over  to  the  newly  built  hut. 
He  was  paid  by  the  Rani  through  her 
manager,  Gajadhar  Prasad,  and  it  is  clear 
fiom  the  evidence  of  the  ehaukidar,  Faujdar, 
that  the  villagers  made  no  distinction  bet- 
ween the  servants  of  Gajadhar  and  the  ser- 
vants of  the  Rani. 

I  think,  therefore,  that  it  is  established 
that  the  hut  was  not  the  property  of  Gaja- 
dhar and  in  the  circumstances  it  is  diffi- 
cult to  see  why  Munsaf  Ram,  the  servant  of 
Ramsundar,  should  set  fire  to  it. 

In  the  First  Information  it  is  stated  that 
the  value  of  the  hut  was  Rs.  25  and  that 
the  articles  destroyed  consisted  of  rice,  dal, 
salt,  clothes  and  aluminium  pots  worth 
Rs.  21.  It  is  not  stated  to  whom  these 
properties  belonged,  but  the  evidence  is 
that  some  of  them  belonged  to  Ram  Lai 
Singh  and  the  constable  Ram  Tewari. 
Jhari  Singh,  the  Tehsildar,  was  at  Dalton- 
ganj  that  day  with  his  master  Gajadhar 
Prasad  who  had  come  there  from  Gaya, 
Bulaki  was  also  away  and  it  does  not 
appear  that  any  property  belonging  to 
Gajadhar's  own  servants  was  in  the  hut. 
Parmeshwar  certainly  had  nothing  there. 
That  this  should  have  been  so  is  natural  for 
Parmeshwar  was  only  appointed  eight  days 
before  the  fire  and  he  had  only  paid  one 
visit  to  Burhibir.  I  accept  the  statement 
of  Ram  Lai  when  he  says  that  Parmeshwar 
came  to  Burhibir  on  Sunday  theSOth  Baisakh 
and  went  away  on  the  next  day  and  that 
the  fire  took  place  the  following  Wednes- 
day. ^  Parmeshwar  Lai's  statement  that  he 
was  in  the  hut  at  the  time  of  the  fire  is, 
in  my  opinion,  wholly  and  intentionally 
false,  I  cannot  accept  his  explanation  that 
he  could  not  leave  the  village  immediate- 
ly after  the  fire  because  there  was  nobody 
else  to  look  after  his  master's  interests.  I 
do  not  think  it  is  likely  that  he  would 
have  stayed  in  the  village  alone  that  night 
if  this  had  been  a  real  case  of  arson.  Next, 
if  Parmeshwar  had  himself  .seen  Munsaf 
setting  fire  to  the  hut,  I  do  not  understand 
why  on  the  following  morning  Ram  Lai 
should  have  been  ordered  by  Audh  Behari 


.  0. 1926] 


ABDUL  BAR!  MALLTrK  V,  EMPEROR. 


887 


.to  go  to  Daltongafcj  to  inform  Gajadhav 
Prasad.  There  would  have  been  no  neces- 
sity for  Audh  Behari  to  interfere.  1  am 
satisfied  that  Ram  Lai  waa  sent  by  Audh 
Behari  and  the  chaukidar  Faujdar  by  the 
constable  and  that  at  Daltonganj  they  had 
an  interview  with  Qajadhar  and  Parmesh- 
war  and  that  under  Gajadhar's  orders  Par- 
meshwar  went  afterwards  to  the  thana  to 
lodge  an  information  against  Munsaf  Ram. 

It  has  been  contended  that  the  First  In- 
formation contains  details  which  it  would 
not  have  been  possible  for  Parmeshwar  to 
give  if  he  had  not  himself  seen  Munsaf  in 
the  act.  I  am  not  impressed  by  this 
argument,  The  stoiy  that  Munsaf  was 
running  away  and  that  Jagat  Prasad 
was  standing  near  the  Thakurbari  might 
easily  have  been  invented  by  one  who 
was  not  at  the  place  of  occurrence  at  all. 

It  is  next  contended  that  at  most  the 
information  is  a  mistake  of  fact  and  does 
not  amount  to  a  false  information  within 
the  meaning  of  s  211,  Indian  Penal  Code, 
1£  the  appellant  had  said  to  the  Police  that 
he  suspected  Munsaf  Ram  and  if  he  had 
not  deliberately  charged  Munsaf  Ram  with 
having  set  fire  to  the  hut,  there  might  have 
been  some  substance  in  this  plea,  but  here 
it  is  clear  that  the  appellant's  intention 
was  not  merely  that  the  Police  should  fol- 
low up  a  clue  but  that  the  Police  should 
put  Munsaf  Ram  on  his  trial.  It  was  clearly 
the  appellant's  intention  to  set  the  criminal 
law  in  motion  against  Munsaf  Ram  and  to 
injure  Ramsundar  and  Jagat  Prasad. 

Next  it  is  contended  that  the  case  does 
not  come  within  the  latter  part  of  s.  211. 
Jt  is  urged  that  a  false  information  given  to 
the  Police  is  not  a  proceeding  instituted 
on  a  false  charge  within  the  meaning  of 
the  second  part  of  the  section.  In  my 
opinion  a  charge  laid  before  the  Police  is  a 
criminal  proceeding,  and  notwithstanding 
the  authority  of  Queen-Empress  v.  Bisheshar 
(1),  I  think  that  the  decision  of  the 
Full  Bench  of  the  Calcutta  High  Court  in 
Karim  Baksh  v.  Queen-Empress  (2)  contains 
a  correct  statement  of  the  law. 
'  Finally,  there  remains  the  question  of 
sentence.  Having  regard  to  the  fact  that 
the  hut  was  a  very  flimsy  and  temporary 
structure  and  that  it  was  worth  only  Rs.  25 
and  that  the  total  value  of  property  des- 
troyed was  less  than  Rs.  £0,  a  sentence 

(1)  16  A.  124;  A.  W,  N.  (1894)  10,  8  Ind.  Deo,  (N.  B.) 


of  four  years'  rigorous  imprisonment  seems 
to  be  unduly  severe.  There  might  have 
been  a  suspicion  in  the  mind  of  Parmesh- 
war that  Ram  Sunder 's  men  had  had  a  hand 
in  causing  the  fire"  and  the  false  charge 
does  not  bear  any  indication  of  any  deep 
laid  plot.  In  the  circumstances  I  think  a 
sentence  of  two  years'  rigorous  imprison- 
ment will  meet  the  ends  of  justice.  The 
sentence  is  accordingly  reduced. 

Bucknill,  J.— I  agree. 

z.  K.  Sentence  reduced. 


80, 


(2)  17  0,  574;  8  Ind,  Pec,  (K.  s.)  922  ^P. 


CALCUTTA  HIGH  COURT. 

CRIMINAL  APPEAL  No.  105  OF  1925. 

July  7, 1925. 
Present:— Mr.  Justice  Suhrawardy  and 

Mr.  Justice  Panton. 

ABDUL  (BAR1)  MALLICK  AND  ANOTHER— 
ACCUSBD — APPELLANTS 

versus 
EMPEROR— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  s.  SCO— 
Depositions  of  witnesses,  proper  time  for  reading 

Section  360,  Or  P  0.,  is  mandatory  and  its  provi- 
sions must  ba  strictly  complied  with  Reading  over 
the  depositions  of  all  the  witnesses  examined  on  one 
day  at  the  end  of  the  day  is  not  in  strict  conformity 
with  the  requirements  of  the  Uw  The  evidence  of 
each  witness  should  be  read  over  to  him  after  it  is 
completed  before  that  of  another  witness  commences. 

H ira  Lai  Ghosh  v  Emperor,  83  Ind  Gas  905,  52  0, 
159,  28  0.  W.  N  968,  A.  I  R.  1924  Gal.  889,  26  Or. 
L  J  201  41  0  L  J.  224  and  Dargahi  v  Emperor,  88 
Ind  Gas  733,  52  0,  499,  A,  L  R  1925  OaL  831;  20 
Cr.  L  J.  1213,  referred  to. 

Criminal  appeal  against  an  order  of  the 
Second  Additional  Sessions  Judge,  24- 
Perganas,  dated  the  8th  January  1925. 

Babu  Debendra  Narayan  Bhattacharjeet 
for  the  Appellants. 

Mr.  Khundkar,  for  the  Respondent. 

JUDGMENT. 

Suhrawardy,  J.— The  two  appel- 
lants have  been  convicted  by  the  Additional 
Sessions  Judge  of  24-Parganahs  in  agree- 
ment with  the  verdict  of  the  majority  of 
the  Jury  under  ss.  304  and  326,  Indian  Penal 
Code.  The  first  accused  was  convicted 
under  s.  304  and  sentenced  to  ten  years' 
rigorous  imprisonment.  The  se0ond accused 
was  found  guilty  under  s.  326  and  sen- 
tenced to  undergo  the  same  tertn  of  impri- 
sonment. Various  objections  have  been 
taken  on  the  ground  of  misdirections  in 


ABDUL  BAfcl  MALL1CK  V.  BMPEROR, 


[92 1 0, 1&26J 


ths  learned  Judge's  charge  to  the  Jury; 
but  it  is  not  necessary  to  consider  them  as 
we  find  ourselves  constrained  to  order  a 
re-trial  on  the  ground  that  the  provisions  of 
s.  360,  Or.  P.  0M  have  not  been  complied 
with.  An  affidavit  has  been  filed  on  behalf 
>of  the  accused  in  which  it  is  stated  that 
the  deposition  of  each  of  the  prosecution 
Witnesses  was  not  read  over  or  explained  to 
him  after  it  had  been  recorded  and  before 
the  examination  of  the  next  witness  was 
commenced;  but  that  the  depositions  of  the 
witnesses  examined  on  the  day  were  read 
over  to  them  after  the  close  of  the  day's 
proceedings.  The  learned  Deputy  Legal 
Remembrancer  in  order  to  be  sure  of  the 
truth  or  otherwise  of  this  allegation  made 
a  reference  to  the  learned  Sessions  Judge 
and  an  affidavit  sworn  by  one  Atul  Chandra 
Banerjee,  Bench  clerk  of  the  Second  Addi- 
tional Sessions  Judge  of  Alipore  has  been 
placed  before  us.  The  deponent  states  as 
follows:  "I  read  over  and  explained  the 
depositions  of  the  witnesses  in  the  presence 
and  hearing  of  the  accused  at  the  end  of 
the  day  when  the  examination  of  all  the 
witnesses  for  the  day  was  closed. "  It  is, 
therefore,  clear  that  the  procedure  that  was 
followed  was  that  the  depositions  of  all  the 
witnesses  were  read  over  to  them  at  the 
close  of  the  day.  This,  in  our  opinion,  is 
not  sufficient  compliance  with  the  provisions 
of  s  360,  Or.  P.  0,  It  has  been  held  in  the 
case  of  Hira  Lai  Ghose  v.  Emperor  (1)  that 
s.  360  is  mandatory  and  its  provisions  must 
be  strictly  complied  with.  This  view  is 
based  on  the  wording  of  the  section  itself 
and  on  the  policy  underlying  it,  namely,  to 
protect  the  witness  and  also  to  safeguard 
the  interest  cf  the  accused  by  affording  to 
the  witness  as  well  as  the  accused  an  oppor- 
tunity of  finding  any  inaccuracy  in  the  re- 
cord of  the  deposition.  In  Dargahi  v.  Em- 
peror (2)  the  same  learned  Judges  who 
decided  the  case  of  Hira  Lai  Ghose  v. 
Emperor  (1)  had  to  consider  a  similar  ques- 
tion with  regard  to  the  provisions  of  the 
section.  There  the  deposition  of  a  witness 
was  read  over  to  him  when  another  witness 
was  being  examined  in  Court.  The  learned 
Judges  deprecated  the  procedure  and  were 
of  opinion  that  it  was  not  a  strict  compliance 
with  the  provisions  of  s.  360,  Or,  P.  (1,  and 

(1)  83  Tnd.  Cas.  903;  52  0  159;  28  C  W.  N  968; 
A.  I.  R.  1924  Cal.  889;  26  Or.  L  J.  201;  41  C  L.  J. 
224. 

(2)  88  Ind.  Cas.  733;  52  C.  499;  A.  I.  R.  1925  Qal 
$31,  26  Or,  L,  J.  1213, 


in  expressing  that  opinion  they  made  the 
following  observation:  uThat  clause  pro- 
vides that  as  the  evidence  of  each  witness 
ia  completed,  it  shall  be  read  over  before 
the  examination  Of  another  witness  is  com- 
menced/* If  it  is  once  conceded  that 
s.  360  is  mandatory,  it  follows  that  its  provi- 
sions must  be  strictly  complied  with.  The 
section  says  that  "as  the  evidence  of  each 
witness  taken  under  s.  35ti  or  s.  357  is  com- 
pleted, it  shall  be  read  over  to  him  in  the 
presence  of  the  accused  and  etc/*  The 
plain  meaning  to  my  mind  is  that  the  depo- 
sition of  a  witness  must  be  read  to  him  as 
it  is  completed.  The  practice  of  reading 
over  the  depositions  of  all  the  witnesses 
examined  on  one  day  at  the  e$d  of  the  day 
may  commend  itself  as  intended  to  save 
public  time:  but  it  is  not  in  strict  conform- 
ity with  the  requirements  of  the  law;  and, 
experience  gained  in  this  case  shows  that 
more  public  time  will  be  wasted  in  the 
re  trial  of  the  cage  than  what  was  saved  by 
the  procedure  adopted.  The  practice  of 
reading  over  depositions  of  several  witnesses 
at  one  time  may  also  defeat  the  object 
of  the  section  as  laid  down  in  the  cas'e 
of  Hira  Lai  Ghose  v.  Emperor  (1).  The 
accused  or  his  lawyer  may  not  remem- 
ber the  exact  words  used  or  the  form 
of  the  answer  given.  It  is,  therefore, 
desirable  thai  the  provisions  of  s.  360, 
(V.  P.  C,  should  be  strictly  observed  and 
the  evidence  of  each  witness  read  over  to 
him  after  it  is  completed  before  the  evidence 
of  another  witness  commences;  and  the 
reading  over  should  not  be  postponed  till 
all  the  witnesses  are  examined.  In  this 
view  the  trial  before  the  Additional  Sessions 
Judge  must  be  held  to  be  vitiated  by  this 
defect  in  the  procedure. 

^The  appeal  accordingly  succeeds,  the  con- 
viction of  and  the  sentences  passed  on  the 
appellants  are  set  aside  and  we  direct  that 
they  be  re-tried  according  to  law.  The 
appellants  will  remain  in  Jail  until  further 
order  by  the  Trying  Court. 

Panton,  J. — I  agree  that  the  con- 
viction and  sentence  of  the  appellants  must 
be  set  aside  as  this  appears  to  me  to  be  the 
inevitable  result  of  the  earlier  decisions  of 
this  Court  just  quoted  by  my  learned  bro- 
ther. 

R.  U  Appeal  allowed. 


[92 1.  0.1928] 


MDSTAQTMUDD1N  V.  EMPEROR. 


LAHORE   HIGH  COURT. 

CRIMINAL  REVISION  No.  1295  OF  1925. 

January  11,  1926. 
Present: — Mr.  Justice  Broadway. 
MTJL  CHAND  AND  ANOTHER— ACCUSED- 
PETITIONERS 

versus 
-      EMPEROR— RESPONDENT. 

Penal  Code  (Act  XLV  of  I860),  s  31 '-Police  Act 
(V  of  1881),  s  31*-  Playing  sards  in,  street— Offence — 
Prohibition  by  constable— Discharge  of  duty 

Playing  cards  m  the  street  is  no  offence  undei  s  31 
of  the  Police  Act  and,  therefore,  a  constable  prohibit- 
ing people  from  doing  so  cannot  be  said  to  be  acting 
in  discharge  of  his  duty. 

Oase  reported  by  the  Sessions  Judge, 
Karnal,  with  his  No  362-J  of  26th  July 
1825. 

FACTS»-The  accused  Tulsi  and  Mul 
Chand  have  been,  convicted  by  Sardar 
Ujagar  Singh,  Magistrate  First  Class,  under 
s.  332,  Indian  Penal  Code.  It  appears  that 
the  appellants  were  playing  cards  in  the 
street  in  front  of  a  shop  when  constable 
Earn  Pershad  prohibited  them  from  doing 
so.  The  accused  did  not  mind  it  and  so 
there  was  scuffle  between  the  accused  and 
the  three  constables  (P.  Ws  Nos.  1,  2  and  3,) 

The  accused,  on  conviction  by  Sardar 
Ujagar  Singh  exercising  the  powers  of 
Magistrate  of  the  First  Class  in  the  Rohtak 
District,  was  sentenced,  by  order  dated  4th 
April  1925,  under  s.  332  of  the  Indian  Penal 
Code,  to  pay  a  fine  of  Us.  25  or  in  default  to 
undergo  rigorous  imprisonment  for  three 
months  each.  * 

GROUNDS. — It  is  urged  on  behalf  of 
the  applicants  that  the  constable  was  not 
authorised  to  prohibit  them  from  playing 
cards  in  the  street  and  so  the  assault  (even 
if  it  was  committed)  does  not  fall  within 
the  meaning  of  s.  332,  Indian  Penal  Code. 
I  think  this  contention  is  right  Playing 
cards  is  not  an  offence  and  does  not  come 
within  any  of  the  eight  clauses  of  s.  34  of 
the  Police  Act.  So  the  act  of  the  constable 
in  prohibiting  the  men  from  playing  cards 
was  not  in  the  discharge  of  his  da ty.  As 
to  who  began  the  fight  first  I  cannot  believe 
that  the  applicants  who  are  Banyas  by  caste 
and  respectable  shopkeepers  of  the  Rohtak 
town  could  have  dared  to  slap  the  constable 
first.  In  my  opinion  the  conviction  is  not 
right.  The  proceedings  are,  therefore,  for- 
warded for  revision  to  the  High  Court  with 
a  recommendation  that  the  conviction  and 
of  the  applicants  be  set  aside  and 


the  fine,  which  has  been  paid,  be  refund- 
ed. 

Mr.  Shamair  Chand,  for  the  Petitioners 
ORDER.— The  learned  Sessions  Judge 
is  lightin  his  conclusion  that  the  petitioner 
had  not  committed  an  offence  by  playing 
caida  m  the  street  Nevertheless  in  my 
judgment  the  petitioners  were  not  justified 
in  assaulting  the  Police  constable.  I, 
therefore,  alter  the  conviction  to  one  under 
s.  323,  Indian  Penal  Code,  and  reduce  the 
fine  in  each  case  to  R3.  5,  The  fines,  if 
paid,  in  excess  of  that  amount  will  be '  re- 
funded. 

R  ^  Fine  reduced. 


ALLAHABAD  HIGH  COURT, 

CRIMINAL  REVISION  No.  476  OP  1925 

December  17,  1925. 

Present:— Mr.  Justice  Daniels 

Hafiz  MUSTAQIMUDDIN— APPLICANT 

versus 
EMPEROR—OpposiTE  P^RTV. 

Cnmmal  Procedure  Code  (Act  V  of  1898),  ss  US 
Silt,  Sch  V,  Form  No  1+2— Bail-bond  filed  in  Court 
since  abolished— Successor,  power*  of,  to  enforce  bond 

-  Seem  ity  for  keeping  peace  or  good  behaviour  —Order 
directing  accused  to  furnish  security  within  fixed  time 

-  Absconding    of  accused— Sureties  for   attendance  of 
accused,  liability  of  J 

A  security  bond  given  m  foim  No  42  of  the  Fifth 
Schedule  to  the  Or  P  0  oiigmally  filed  ma  Court 
which  has  since  censed  to  exist,  can  also  be  enforced 
by  its  successor  to  which  the  other  functions  of  the 
defunct  Court  have  been  transferred  fp  8i)0,  col.  1 1 

Whole  a  Magistrate  passes  an  order  under  s  123 
Cr.  P  C,  directing  an  accused  to  give  security  for 
keeping  the  peace  or  for  good  bi  haviour  for  moro  thau 
one  year  and  allows  him  time  toJile  a  security  by  a  fixed 
date,  but  the  accused  absconds  on  that  date,  the  liabil- 
ity of  the  suieties  who  held  themselves  responsible 
foi  the  accused's  attendance  iu  Court  cannot  be  held 
to  be  terminated,  because  until  it  is  known  whether 
the  accused  can  give  the  security  or  an  ordei  is  passed 
referring  the  case  for  the  final  orders  of  the  Sessions 
Judge  it  cannot  be  said  that  the  proceedings  in  the 
Magistrate's  Couit  have  been  teimmated  [ibid] 

Criminal  revision  against  an  order  of  the 
Sessions  Judge,  Meerut,  dated  the  24th 
March  1U25. 

Mr.  G.  W.  Dillon,  for  the  Applicant. 

The  Assistant  Government  Advocate,  for 
the  Crown. 

JUDGMENT.— This  is  an  application 
in  revision  in  a  case  in  which  sureties1 
bonds  have  been  ordered  to  be  forfeited 
under  s.  514  of  the  Cr.  P.  C.  Two  points  of 
law  are  raised : — 


AR3HBD  ALI  t>t  EMPEROR, 


[921,0.1926] 


(1)  That  the  bonds  were  given  for  attend- 
ance in  the  Court  of  the  Cantonment  Magis- 
trate and  that  the  liabilities  of  the  sureties 
came  to  an  end  when  the  case  was  trans- 
ferred to  another  Court. 

(2)  That  on  22nd  September,  the  Magis- 
trate passed  an  order  directing  the  accused 
in  the  case  to  give  security  for  three  years, 
but  allowed  him  ten  days1   time  up  to  3rd 
October  to  file  the  security.    It  was  on  this 
latter  date  that  he  absconded.    The  appli- 
cant contends  that  his  liability  came  to  an 
end  on  22nd  September. 

Owing  to  a  change  in  the  law  the  Court 
of  the  Cantonment  Magistrate  ceased  to 
exist  in  March  1924  ;  and  it  appears  from 
the  Magistrate's  order  that  all  cases  from 
that  Court  were  transferred  to  the  Court 
of  B.  Jai  Narain,  Special  Mrgislrate.  In 
my  opinion,  the  terms  of  the  security  bond 
given  in  Form  No.  42  of  the  Fifth  Schedule 
to  the  Cr.  P.  C.  are  wide  enough  to  include 
the  successor  of  the  Court  in  which  the 
case  originally  was.  Any  other  view  of  the 
law  would  produce  most  inconvenient  re- 
sults, since  if  an  accused  were  on  bail 
when  a  case  was  transferred,  it  would  in 
every  case  be  necessary  before  transferring 
the  case  to  order  his  arrest  or  to  require 
him  to  give  fresh  sureties. 

As  regards  the  second  point,  the  terms  of 
the  bond  include  not  only  an  inquiry 
before  the  Magistrate  but  also  dates  fixed 
in  the  Sessions  Court  if  the  case  goes  to 
that  Court.  In  this  case,  the  Magistrate 
could  order  the  accused  to  give  security 
for  three  years,  but  if  the  security  was  not 
given  it  was  Hot  in  his  power  finally  to 
dispose  of  the  case.  Final  orders  under 
8.  123  of  the  Code  could  only  be  passed  by 
the  Sessions  Judge.  The  Magistrate  had 
power  under  s.  120  of  the  Code  to  postpone 
the  date  from  which  the  security  should 
take  effect,  i.  ^.,  to  give  the  accused  time 
within  which  to  furnish  it.  Until  it  was 
seen  whether  the  accused  could  give  the 
security  or  an  order  would  have  to  be 
passed  referring  the  case  for  the  final  orders 
of  the  Sessions  Judge,  it  cannot  be  said 
that  the  proceedings  in  the  Magistrate's 
Court  had  finally  terminated  so  as  to  put 
an  end  to  the  liability  of  the  sureties 
who  were  responsible  for  the  accused's 
attendance,  I  find,  therefore,  that  the  orders 
of  the  Courts  below  are  correct,  and  I  dis- 
miss this  application. 

S.  s.  Application  dismissed. 


CALCUTTA  HIGH  COURT* 

CKIMINAL  REFERENCE  No.  14  OP  1924 

AND 
CRIMINAL  APPEAL  No.  621  OP  1924. 

November  25, 1924. 
Present:— Justice  Sir  Babinglon  Newbould, 

KT.,  and  Mr.  Justice  Mukerji. 
ARSHED  ALI— ACCUSED— APPELLANT 

versus 

EMPEROR— RESPONDENT. 
Criminal  Procedure  Code  (Act  V  of  1898),  s  37b— 
Reference  for  confirmation    of  death    sentence —Duty 
of  High  Court  —  Identification  test  during  trial,  value 

o/> 

In  a  reference  for  oonfii  rnation  of  death  sentence, 
the  High  Court  must  satify  itself  that  the  finding  of 
fact  arrived  at  is  justified  by  the  evidence  on  record, 
[p  891,  col  11 

Value  of  identification  test  held  during  trial  com- 
mented upon  [p  892,  col.  2  ] 

Reference  made  by  the  Additional  Sessions 
Judge,  Backerganj,  dated  the  27th  Septem- 
ber 1924. 

Babu  Debendra  Narain  Bhattacharjee,  for 
the  Accused. 

Mr.  Khundkar,  for  the  Crown. 
JUDGMENT. 

Newbould,  J.— Arshed  AH  has  been 
found  guilty  by  the  unanimous  verdict  of 
the  Jury  on  the  charge  of  abetment  of 
murder.  He  has  been  sentenced  by  the  Ad- 
ditional Sessions  Judge  of  Backerganj  to 
death  under  s.  302  read  with  s.  109  of  the 
Indian  Penal  Code.  Under  s.  374  of  the  Cr. 
P.  C.  the  proceedings  have  been  submitted 
to  this  Court  for  confirmation  and  the  ac- 
cused has  also  preferred  an  appeal  against 
his  conviction. 

The  facts  according  to  the  case  for  the 
prosecution  are  as  follows: — 

Lalsom  Bibi,  the  principal  witness  in  this 
case,  has  lived  as  the  wife  of  five  men.  To 
how  many  of  them  she  was  legally  married 
is  not  clear,  but  her  marriage  to  the  appel- 
lant Arshed  Ali  who  was  the  fourth  of  her 
so-called  husbands  was  certainly  bigamous 
as  it  took  place  during  the  lifetime  of  the 
third  Abdul  Hussain  who  had  not  divorced 
her.  After  living  with  the  appellant  ^  for  a 
few  months  she  left  him  and  went  to  live  in 
her  father's  bari.  She  was  then  one  month 
pregnant.  In  Magh  last  she  went  through 
a  form  of  nika  marriage  with  the  deceased 
Sher  Ali,  This  enraged  Arshed  Ali  and 
twice  in  the  months  of  Falgoon  and  Chaitra 
Jabed  Ali  who  is  Arshed  AH's  dharma-bhai 
asked  Lalsom  to  return  to  Arshed  Ali  and 
threatened  her  when  she  refused  to  do  BO. 
On  the  night  P!  the  10th  April  (28th  Chaitra) 


[92  L  0. 1928]  AKSflED  ALI 

Bher  All,  Lalsom  and  her  three  children 
were  sleeping  in  her  hut.  At  a  little  before 
midnight  Lalsom  woke  up  hearing  the 
noise  of  a  scuffle.  She  heard  Jabed  AH, 
whose  voice  she  recognised,  say  "Let  me 
go."  She  got  up  to  light  a  lamp  and  then 
heard  Arshed  AH  saying  "Jabed  AH,  is  the 
deed  done  "  By  the  light  of  the  lamp  she 
saw  that  Sher  Ali's  viscera  were  protruding 
from  a  wound  in  his  stomach  and  another 
wound  on  the  left  side  of  his  chest.  Her 
cries  brought  several  neighbours  to  the 
scene  and  both  Sher  AH  and  Lalsom  told 
them  that  they  had  recognised  Jabed  AH 
and  Arshed  AH  by  their  voices 

Sher  AH  was  taken  by  boat  to  Patua- 
khali,  the  Sub  Divisional  headquarter, 
where  he  arrived  at  about  11  A.  M.  He  was 
taken  to  the  hospital  and  there  his  state- 
ment was  recorded  by  an  Honorary  Magis- 
trate from  3-30  to  4-10  p,  M.  He  said  that 
he  had  been  wounded  by  Jabed  AH  and 
Arshed  AH  and  that  Jabed  AH  inflicted  the 
wound  with  a  dao.  He  also  stated  that  he 
was  wounded  because  he  married  Arshed 
Ali's  wife.  He  died  before  sunset  that 
afternoon.  The  doctor  who  held  the  post 
mortem  examination  found  three  incised 
wounds  on  the  body,  of  which  two  were 
homicidal.  In  his  opinion  death  was  due 
to  shock  and  haemorrhage  from  these  two 
wounds. 

That  Sher  Ali  was  murdered  on  the  night 
of  the  10th  Apiil  has  been  clearly  proved. 
Whether  the  appellant  before  us  was  guilty 
of  abetting  thi^  murder  depends  on  the 
credibility  of  the  evidence  that  he  was  re- 
cognised by  his  voice.  Though  the  Jury 
have  unanimously  convicted  him,  this  being 
a  reference  under  s.  374,  Or.  P.  0.,  we  must 
be  satisfied  that  their  finding  of  fact  is 
justified  by  the  evidence  on  the  record. 
After  full  consideration  we  are  compelled  to 
hold  that  there  are  several  points  in.  the 
case  which  make  it  unsafe  to  rely  on  this 
evidence.  We  also  find  that  there  has  been 
positive  misdirection  on  one  important  piece 
of  evidence  in  the  case  in  addition  to  non- 
Direction  by  reason  of  the  learned  Judge 
having  omitted  to  draw  the  attention  of  the 
Jury  to  several  points  which  throw  doubt 
on  the  truth  of  the  case  for  the  prosecu- 
tion. 

In  his  charge  to  the  Jury  the  learned 
Sessions  Judge  has  said;  "On  Wednesday, 
the  27th  Chaitra  (9th  April)  Arshed  Ali 
was  seen  in  Kalagachia  village  which  ad- 
joins Kewalumi*  walking  towards  the  lari 


v,  BMPBSOH,  891 

of  Jabed  AH.1*  But  the  evidence  is  that 
Arshed  Ali  was  seen  in  the  neighbourhood 
not  on  the  Wednesday  but  on  the  Thursday 
afternoon.  The  fact  of  the  case  for  the  pro- 
secution rests  on  a  statement  alleged  to 
have  been  made  by  Sher  Qazi  and  is  sup- 
ported by  the  evidence  of  his  brother 
Mahomed  Gazi  who  deposed  that  Sher  Gazi 
said  he  had  seen  Arshed  Ali  on  the  previous 
afternoon.  That  the  expression  "the  pre- 
vious afternoon"  cannot  mean  the  afternoon 
of  the  previous  day  is  clear  from  the  state- 
ment of  Lalsom  Bibi  in  the  First  Informa- 
tion to  the  effect  that  her  husband  had  told 
her  in  the  afternoon  of  the  day  of  occurrence 
that  when  he  returned  after  noon  of  that 
day  he  saw  Arshed  AH  and  Jabed  Ali. 
This  is  a  very  serious  misdirection  since  it 
was  proved  by  witnesses  \^ho  were  examin- 
ed by  the  Court  to  test  the  accused's  plea  of 
alibi,  that  he  was  present  at  Patuakhali  as 
an  accused  in  a  case  which  was  the  last 
heard  on  the  10th  April.  Though  this 
might  not  have  prevented  him  being  pre- 
sent at  the  murder  he  could  not  possibly 
have  been  at  Kalagachia  at  the  time  that 
Sher  Ali  said  that  he  saw  him. 

The  case  against  this  accused  depends 
solely  on  the  recognition  of  his  voice  by 
Sher  AH  and  Lalsom  Bibi.  It  is  certainly 
suspicious  that  no  mention  of  this  fact  was 
made  to  anyone  outside  the  village  before 
the  18th  of  April  when  Lalsom  Bihi's  first 
information  was  recorded.  Though  1he 
chowkidar  Adam  Ali  went  to  the  Amtali 
Police  Station  the  morning  after  the  oc- 
currence, nothing  was  recorded  there.  The 
explanation  given  is  that  it  was  thought 
that  information  would  be  taken  at  Patu- 
akhali. We  think  it  unlikely  that  no  entry 
would  have  been  made  even  in  the  station 
diary  if  the  chowkidar  had  then  asserted 
that  the  accused  had  been  recognised  by 
their  voices  at  the  time  of  occurrence.  The 
statement  of  Sher  Ali  recorded  by  the 
Honoiary  Magistrate  contains  no  mention 
of  how  Jabed  AH  and  Arshed  AH  were 
recognised,  though  both  are  named. 

It  is  difficult  to  rely  absolutely  on  the 
statements  of  the  deceased  and  his  wife 
since  they  are  clearly  untruthful  on  one  im- 
portant point,  the  period  that  elapsed  be- 
tween Lalsom  Bibi  leaving  Aished  Ali  and 
her  marriage  to  Sher  All.  Lalsom  Bibi's 
evidence  is  that  she  married  Arshed  Ali  4 
years  ago  and  after  living  with  him  4 
months  she  went  to  live  at  her  father's  house. 
Sher  Ali  stated  to  the  Honorary  Magistrate 


89$ 


EMPEROR  V.  TEJ  RAM. 


that  she  was  at  her  father's  bari  for  about 
4  years.  But  the  age  of  the  child  of  which 
Lalsom  Bibi  says  the  accused  is  the  father, 
is  inconsistent  with  her  having  lived  apart 
from  the  accused  for  as  long  as  two  years. 
If  the  accused  had  raised  no  objection  to 
Lalsom  Bibi  leaving  him  for  even  two  years 
there  is  no  reason  why  he  should  have  com- 
mitted this  murder.  Whatever  the  truth 
may  be  we  have  no  doubt  that  there  was 
good  reason  to  suspect  the  accused  and 
that  the  true  story  of  the  illfeeling  between 
the  parties  has  been  concealed. 

There  are  other  reasons  besides  the  delay 
in  informing  the  authorities  which  make  us 
suspect  the  truth  of  the  story  of  recogni- 
tion, apart  from  the  question  as  to  how  far 
such  recognition  can  support  the  conviction. 
It  is  most  improbable  that  when  a  murder 
is  being  committed  the  murderer's  com- 
panion should  call  to  him  by  name.  This 
suggests  that  the  actual  words  that  may 
have  been  heard,  have  been  altered  to 
strengthen  the  case  against  Jabed  Ali  who 
is  abscond  ing. 

Lalsom  Bibi's  evidence  is  contradictory  on 
some  material  points.  She  said  she  had  no 
talk  with  her  husband  before  he  made  the 
statement  to  the  neighbours  and  that  when 
she  lit  the  lamp  her  husband  waa  senseless 
and  he  came  to  after  the  neighbours  came. 
Then  in  cross-examination  she  said;  "It  is 
a  'fact  that  before  any  neighbours  came  up 
my  husband  told  me  he  recognised  Jabed 
Ali  and  Arshed  Ali,  he  told  me  this  while 
I  was  lighting  the  lamp."  Also  in  her 
deposition  she  said  that  her  husband  said 
4'o  ma"  before  any  statements  were  made  by 
the  assailants,  but  when  questioned  by  a 
juror  as  to  the  order  of  events  she  places 
this  cry  of  "o  ma"  last  of  all.  The  evidence 
of  the  neighbours  who  came  afterwards  is 
not  free  from  discrepancies.  It  is  noticeable 
that  when  Ibrahim  called  to  the  chowkidar 
he  spoke  of  some  one  unknown  having 
committed  the  murder  though  according  to 
the  evidence  he  had  then  heard  the  story  of 
recognition.  There  are  also  important  dis- 
crepancies as  to  whether  Lalsom  Bibi  said 
anything  that  night.  The  deceased's 
brother's  account  of  a  conversation  with  the 
deceased  is  very  significant.  He  says  that 
the  deceased  gave  three  reasonsfor  accusing 
Jabed  Ali  and  Arshed  Ali,  (i)  that  he  had 
no  other  enemies,  (ii)  that  he  saw  Arshad 
Ali  in  the  afternoon,  (lii)  that  he  had  re- 
cognised their  voices. 
We  think  that  the  real  reason  for  the 


[921.0.1926] 

accusation  of  these  men  was  the  first  and 
that  the  third  reason  on  which  tha  case  now 
rests  is  as  unreliable  as  the  second  has  been 
proved  to  be. 

For  these  reasons  we  must  hold  that  the 
guilt  of  the  accused  Arshed  Ali  has  not 
been  proved.  We  refuse  to  confirm  the 
sentence  of  death  passed  on  him.  We  allow 
his  appeal  and  set  aside  his  conviction  and 
sentence  and  acquit  him  of  the  charge  on 
which  he  was  tried  and  direct  that  he  be 
released. 

Mukerji,  J.— I  entirely  agree.  I  only 
wish  to  add  a  few  words  as  regards  the 
identification  test  that  was  held  in  the  course 
of  the  trial  in  this  case.  The  matter,  how- 
ever, is  not  of  much  importance  in  the  pre- 
sent case,  inasmuch  as  the  witness  who  was 
subjected  to  this  test  was  for  sometime  the 
wife  of  the  accused,  who  was  sought  to  be 
identified.  In  any  case  it  is  not  reasonable 
to  expect  that  she  would  have  failed  to 
identify  the  accused.  What  happened  in  this 
case  was  this:— Lalsom  Bibi  was  examined 
as  a  witness  on  behalf  of  the  prosecution 
and  after  her  examination  was  over  with 
the  permission  of  the  accused  and  his 
Pleader  the  identification  test  of  the  accus- 
ed's voice  was  held,  the  accused  being 
mixed  upwith  seven  other  men.  The  accused 
was  actually  numbered  six  on  the  file,  and 
his  voice  was  correctly  identified  by  Lalsom 
Bibi  as  the  6th  voice.  Personally  I  have 
always  entertained  grave  doubts  as  to  the 
propriety  of  such  a  tesfc  being  adopted 
during  the  trial.  It  makes  no  difference 
that  in  the  present  case  it  was  held  with 
the  permission  of  the  accused  and  his 
Pleader,  for  a  request  in  the  matter  of  this 
description  is  always  very  embarrassing  to 
the  defence.  There  is  no  warrant  for  this 
procedure  in  the  Statute  and  it  is  likely  to 
lend  spurious  weight  to  the  testimony  which 
should  be  available  for  the  purposes  of  a 
criminal  trial. 

R.  L.  Appeal  allowed. 


LAHORE  HIGH  COURT. 

CRIMINAL  REVISION  CASE  No.  1673  OF  1925, 

December  23,  1925 

Present:— Sir  Shadi  Lai,  KT,,  Chief  Justice, 
EMPEROR— PROSECUTOK 

versus 

TEJ  RAM— ACCUSED. 
Criminal  Procedure  Code  (Act  V  of  18V8t  at  amend* 


[92  L  0. 1926] 


ed  by  Act  XVIII  of  IMS),  *.  JtfO  (0),  effect  of. 

Tlw  effect  of  the  addition  of  sub-s.  (6)  to  s  439, 
Ci  P.  C,  by  Act  XVIII  of  1923,  is  that  the 
High  Court,  when  adjudicating  upon  an  application 
for  enhancement  of  sentence,  is  converted  into  a  Court 
of  Appeal  against  conviction  and  the  accused  is 
entitled  to  show  that  his  conviction  is  unjustiijed 
[p  893,  cols  1  &  2 1 

Mr.  Garden  Noadt  Government  Advocate, 
for  the  Crown. 
Mr.  Shamair  Chand,  for  the  Accused. 

ORDER.— On  the  15th  August  1921, 
two  boxes  containing  various  articles  of 
merchandise  were  consigned  from  Delhi  to 
Rewari,  and,  when  the  consignment  arrived 
at  Rewari,  the  consignee  Tej  Ram  repre- 
sentated  to  the  Station  Master  that  one  of 
the  boxes  had  been  tampered  with.  There- 
upon the  latter  asked  Tej  Ram  to  produce 
the  original  beejak  (invoice)  to  enable  him 
to  give  an  "  open  delivery'1  of  the  con- 
signment. The  invoice  Ex  P.  B.  was  ac- 
cordingly produced  by  Tej  Ram,  and  the 
goods  were  delivered  to  him.  A  list  of  the 
articles  alleged  to  have  been  lost  was  pre- 
pared by  the  Station  Master,  and  on  the 
strength  of  that  list  the  consignee  made  a 
claim  for  the  recovery  of  their  value.  The 
Railway  Authorities,  however,  considered 
the  claim  to  be  false,  with  the  result  that 
Tej  Ram  was  prosecuted  for  an  attempt 
to  cheat  the  Railway  Company  and  also 
for  using  as  genuine  a  forged  document. 
The  Trial  Magistrate  has  acquitted  the  ac- 
cused of  an  attempt  to  cheat,  but  has  con- 
victed him  under  s.  471  read  with  s,  468, 
Indian  Penal  Code,  and  sentenced  him  to 
imprisonment  till  the  rising  of  the  Court 
and  a  fine  of  Rl  150. 

The  District  Magistrate  has  made  a  be- 
lated reference  to  this  Court  recommend- 
ing that  the  sentence  be  enhanced,  and 
Mr.  Shamair  Chand,  who  has  appeared  for 
the  accused  to  show  cause  against  enhance- 
ment, urges  that  his  client  has  been  wrongly 
convicted  and  that  the  conviction  should  be 
set  aside. 

Now,  sub-s.  (6)  which  has  been  added  to 
s.  439,  Or.  P.  C.,  by  the  Cr.  P.  C.  Amend- 
ment Act  XVIII  of  1923,  provides  that 
41  notwithstanding  anything  contained  in 
this  section,  any  convicted  person,  to  whom 
an  opportunity  has  been  given  under  sub- 
B.  (2)  of  showing  cause  why  his  sentence 
should  not  be  enhanced,  shall,  in  showing 
cause,  be  entitled  also  to  show  cause  against 
his  conviction."  The  effect  of  the  enact- 
ment of  this  sub-section  is  that  the  High 
Court,  when  adjudicating  upon  an  applied 


JBMPEROR  V.  f  BJ  RAJ  693 

tion  for  enhancement  of  sentence,  is  con- 
verted into  a  Court  of  Appeal  against  con- 
viction. I  must,  however,  administer  the 
law  as  I  find  it. 


In  view  of  this  express  provision  of  the 
law,  I  have  heard  arguments  on  the  merits 
and  reached  the  conclusion  that  there  is 
no  satisfactory  evidence  to  show  that  Ex. 
P  B  the  genuineness  of  which  has  been 
impeached,  is  afoiged  document.  It  is  to 
be  observed  that  this  document,  which  is 
written  in  Urdu,  purports  to  be  a  list  of 
articles  purchased  by  the  accused  at  Delhi 
and  to  bear  the  signature  of  Sheikh  Karam 
Ilahi-Rahim  Ilahi.  Now  Karam  llahi, 
who  was  also  prosecuted  in  this  case  but 
was  subsequently  discharged,  has  appeared 
as  a  witness  for  the  prosecution,  and  he 
admits  that  he  has  a  shop  bearing  the 
aforesaid  name  Another  witness  for  the 
prosecution,  namely,  Sub -Inspector  Gian 
Chand,  who  investigated  the  case,  de- 
poses that  he  was  told  by  Karam  Ilahi 
that  the  invoice  Ex.  P  B  was  written  by 
his  servant  Ram  Chand.  This  witness, 
when  answering  a  question  put  by  the 
Court  at  the  end  of  his  examination,  tried 
to  modify  the  effect  of  his  admission  by 
stating  that  Karam  Ilahi  subsequently 
denied  that  Ram  Chand  had  written  the 
document.  Karam  Ilahi  himself  as  a  wit- 
ness for  the  prosecution  disclaims  the  res- 
ponsibility of  his  firm  for  preparing  it,  but 
considering  that  he  was  himself  prosecuted 
as  an  offender  and  appeared  as  a  witness 
after  his  discharge  fa  somewhat  unusual 
and  objectionable  procedure),  I  am  not  pie- 
pared  to  attach  any  value  to  his  evidence. 

It  may,  therefore,  be  taken  as  proved 
that  Ex,  P  B  was  written  by  Ram  Chand 
on  behalf  of  Karam  Ilahi,  Rahim  Ilahi  and 
the  evidence  also  shows  that  this  document 
consolidates  several  invoices  representing 
goods  purchased  by  the  accused  from  vari- 
ous shops  at  Delhi.  Kaiam  Ilahi  himself 
admits  that  Ex.  P  M  is  the  list  of  the 
goods  purchased  from  his  own  shop,  and 
this  list  is  embodied  in  Ex.  P  B. 
Now,  Ex.  P  M,  contains  all  the  articles 
which  were  alleged  to  have  been  lost 
while  the  boxes  were  in  the  custody  of 
the  Railway  ;  and  it  cannot,  therefore, 
be  seriously  contended  that  the  accused 
was  claiming  certain  goods  which  he  had 
never  purchased. 

The  evidence  for  the  prosecution  shows 
that  the  articles  in  dispute  were  purchased 


894 


MUOnBBS-UC-DIN  V.  BMPEROR. 


[92  L  0. 1926] 


by  the  accused  from  Karam  Ilahi  and 
were  correctly  entered  in  Ex.  P  B  which 
waa  written  by  Karam  Ilahi's  servant  Ram 
Ohand.  These  articles  have  apparently  dis- 
appeared, but  the  question  of  the  responsi- 
bility for  the  disappearance  is  a  debatable 
one.  One  thing,  however,  is  reasonably 
clear  that  the  document,  upon  which  the 
charge  under  s.  471  is  founded,  has  not 
been  proved  to  be  a  forged  document. 

The  result  of  this  finding  is  that  the 
conviction  cannot  be  sustained.  Accord- 
ingly 1  set  aside  the  conviction  and  the 
sentence  and  acquit  the  accused,  The 
fine,  if  realised,  shall  be  refunded  to  him. 

B.  L.  Conviction  set  aside. 


CALCUTTA  HIGH  COURT. 

CRIMINAL  REVISION  No.  697  OF  1925. 

October  15,  1925. 
Present:— Justice  Sir  N.  E.  Chatterjea, 

KT.,  and  Mr.  Justice  B.  B.  Ghose. 

LALIT  KUMAR  SEN--Aoocjsai>— 

PETITION  BE 

versus 
EMPEROR— OPPOSITE  PARTY. 

Criminal  Procedure,  Code  (Act  V  of  1808).  s.  tfl— 
Appeal—Record  sent  for— Summary  dismissal. 

A  Criminal  Appellate  Court  should  hear  the 
Pleader  and  ought  not  to  dismiss  an  appeal  summarily 
after  the  record  has  been  sent  for  and  received. 

Criminal  revision  against  an  order  of  the 
Sessions  Judge,  Backerganj,  dated  the  3rd 
August  1925,  affirming  that  of  the  Deputy 
Magistrate,  Barisal,  dated  the  23rd  July 

1925. 

Babu  Suresh  Chandra  Taluqdar,  for  the 
the  Petitioner. 

Babu  Aswani  Kumar  Ghose ,  for  the 
Opposite  Party, 

JUDGMENT.— After  the  record  was 
sent  for  and  received,  the  learned  Sessions 
Judge  ought  to  have  heard  the  Pleader 
and  ought  not  to  have  dismissed  the 
appeal  summarily  without  hearing  him. 
The  order  dismissing  the  appeal  summarily 
is  accordingly  set  aside  and  the  appeal 
is  sent  back  to  him  to  be  re-heard  according 

to  law. 

Case  sent  back. 


LAHORE  HIGH  COURT. 

CRIMINAL  PETITION  No.  205  OF  1925. 

December  18,  1925. 
Present: — Mr.  Justice  Fforde. 
MUGHEE8-UD-DIN— ACCUSED- 
PETITIONER 

versus 

EMPEROR  THROUGH  RADHA  LAL— 
COMPLAINANT— RESPONDENT. 

Criminal  Procedure  Code  (Act  V  of  1898),  s  526— 
Application  for  postponement  to  enable  to  apply  for 
transfer — Magistrate  enquiring  into  allegations— Pro- 
priety—Transfer. 

An  enquiry  by  the  Magistrate,  on  3  party's  apply- 
ing to  him  for  postponement  of  the  case  to  enable  him 
to  apply  for  transfer,  into  the  grounds  of  transfer  him- 
self as  highly  improper  and  would  naturally  caut>e 
apprehension  in  the  mmd  of  the  petitioner  that  the 
Tribunal  trying  the  case  is  not  likely  to  give  him  an 
impartial  and  unbiased  hearing 

Petition,  under  s.  526,  Or.  P.  0,,  for  trans- 
fer from  the  Court  of  the  Magistrate, 
Second  Class,  Jagadhri,  District  Ambala,to 
some  other  Court  of  competent  jurisdiction, 

Lala  Bishan  Nath,  for  the  Petitioner. 

Mr.  Sha-mair  Chand,  for  the  Respondent. 

ORDER.— Proceedings  were  taken 
against  the  petitioner  upon  a  complaint  made 
under  the  provisions  of  ss.  352,  504,  Indian 
Penal  Code.  In  the  course  of  these  pro* 
ceedings  the  petitioner  applied  to  the 
Court  for  postponement  of  the  case  to 
enable  him  to  apply  for  a  transfer  of  the 
matter  from  the  Court  of  this  Magistrate 
to  some  other  Magistrate.  The  Magistrate 
hearing  the  complaint  thereupon  requested 
the  petitioner  to  make  a  statement  as  to 
the  grounds  of  his  transfer,  and  then  pro- 
ceeded to  make  a  pieliminary  inquiry  to 
ascertain  whether  these  grounds  were  well 
founded,  Having  come  to  the  conclusion 
that  the  grounds  were  false  the  Magistrate 
then  made  a  report  to  the  District  Magis- 
trate for  the  purpose  of  having  the  peti- 
tioner tried  under  s.  193,  Indian  Penal 
Code,  for  perjuiy.  The  learned  Magistrate 
in  para.  6  of  his  report  makes  a  frank 
statement  of  these  circumstances.  It  is 
obvious  that  the  procedure  adopted  by  the 
learned  Magistrate  was  highly  improper 
and  would  naturally  cause  apprehension  in 
the  mind  of  the  petitioner  that  the  tribunal 
trying  his  case  was  not  likely  to  give  him 
an  impartial  and  unbiased  hearing.  Under 
these  circumstances  I  have  no  option  but 
to  transfer  the  case  to  the  Court  of  such 
other  competent  Magistrate  as  the  District 
Magistrate  might  direct. 

K,  *"  Oa*e  transferred, 


C92  1.  0. 1926] 


ALLAHABAD  HIGH  COURT. 

CRIMINAL  RBFERENCB  No.  731  OF  1925. 

December  22,  1925. 

Present : — Mr,  Justice  Daniels. 

PURAN  AND  ANOTHUR— APPLICANTS 

versus 

EMPEROR  THROUGH  CHIDDAH— 
OPPOSITE  PART*. 

Criminal  Procedure  Code  (Act  V  of  1898),  s  203  — 
Order  dismissing  complaint  not  set  aside — Fresh  com- 
plaint^  whether  barred — Practice— Witnesses  summoned 
at  late  stage  on  accused's  responsibility — Failure  of 
witnesses  to  appear \  effect  of — Penal  Code  (ActXLV  of 
I860),  s,  1+06  -Money  advanced  to  accused  under  law- 
ful agreement — Agreement  becoming  incapable  of  exe- 
cution— Retention  of  money  in  lieu  of  debt  due  to 
accused—Offence 

An  order  of  dismissal  passed  on  a  complaint,  which 
has  not  been  set  aside,  is  no  bar  to  a  fresh  complaint 
upon  the  same  facts  to  another  Magistrate. 

Queen-Empress  v.  Adam  Khan,  22  A  106,  A  W.  N. 
(1899;  211,  9  Ind.  Dec  (N  s)  1100,  net  followed 

Ram  Bharos  v.  Baban,  22  Ind  Cas  734,  36  A  129, 
15  Or  L.  J.  158,  12  A,  L  J.  106  and  William  Cecil 
Keymer  v  Emperor,  22  Ind  Cas  145,  36  A  53,  12  A. 
L  J  1,  15  Gr  L  J.  1,  followed. 

Where  an  application  for  summoning  witnesses  has 
"been  put  later,  and  the  summons  have  been  issued  on 
the  responsibility  of  the  accused  on  the  full  under- 
standing that  the  Court  will  not  grant  any  adjourn- 
ment if  the  witnesses  do  not  appear,  the  accused 
cannot  say  that  he  had  no  opportunity  of  producing 
his  evidence,  if  the  witnesses  do  not  turn  up 

Where  a  sum  of  money  is  placed  in  the  hands  of  a 
person  under  a  lawful  agreement  which,  however, 
becomes  subsequently  incapable  of  execution,  and  is 
detained  by  him  afterwards  against  a  debt  due  to  him 
lie  cannot  be  held  guilty  of  cnmmal  bieach  of  trust 
under  s.  406,  Penal  Code. 

Criminal  reference  made  by  the  Sessions 
Judge,  Aligarh,  dated  the  13th  November 
1925. 

Mr.  Panna  Lai,  for  the  Applicants. 

Mr  Sailanath  Mukerji,  for  the  Opposite 
Party. 

JUDGMENT. — This  is  a  reference  by 
the  learned  Sessions  Judge  of  Aligarh. 
The  facts  out  of  which  the  reference  arises 
are  these.  The  complainant  Chhidda  had 
to  deposit  a  sum  of  Rs.  615  to  complete  the 
purchase-money  of  a  Court  auction  sale 
which  had  been  concluded  in  the  name  of 
his  wife.  He  had  only  Rs.  415  with  him 
and  wished  to  borrow  the  remaining  Rs.  200 
from  the  applicants  Puran  and  Hoti  They 
agreed  to  advance  it  on  condition  that  Ch- 
hidda made  over  the  Rs.  415  he  had  with 
him,  that  they  made  the  entire  deposit  and 
that  the  house  was  transferred  into  their 
names.  Chhidda  consented  to  this,  and  an 
application  was  made,  but  the  Court  re* 
fused  it.  This  happened  on  21st  July, 


895 

Chhidda  owed  Puran  and  Hoti  a  sum  equal 
to  the  amount  which  he  had  placed  in  their 
hands.  They  seem  to  have  retained  the 
Rs.  415  against  their  debt.  On  the  follow- 
ing day  he  filed  a  complaint  against  them 
which  was  dismissed  the  same  day  under 
s  203,  Cr.  P.  C.,  on  the  ground  that  no  crimi- 
nal offence  was  established.  On  the  24th 
of  July  they  filed  a  civil  suit  against  him 
claiming  Rs.  4(57  due  to  them  from  him. 
On  6th  August  while  this  suit  was  pending 
he  filed  a  fresh  complaint  which  was  enter- 
tained by  a  different  Magistrate. 

The  learned  Sessions  Judge  has  made 
this  reference  on  three  grounds,  two  of  them 
technical  and  one  a  ground  of  substance. 
The  technical  grounds  are  that  the  second 
Magistrate  could  not  entertain  a  fresh  com- 
plaint unless  the  order  dismissing  the  origi- 
nal complaint  had  first  been  set  aside 
under  s.  437,  Cr.  P  C.  The  learned  Judge 
relies  on  an  old  ruling  in  Queen-Eepress  v. 
Adam  Khan  (1),  but  this  ruling  has  not 
been  followed  in  later  cases.  Ram  Bharos  v. 
Baban  (2)  and  William  Ceil  Keymer  v.  Em- 
peror (3)  show  that  the  opposite  view  haa 
prevailed  in  later  cases.  The  second  ground 
is  that  the  accused  had  no  proper  oppor- 
tunity of  producing  their  witnesses.  On  this 
§oint  also  I  am  not  disposed  to  accept  the 
essions  Judge's  view.  The  application  for 
summoning  witnesses  was  put  in  later, 
and  the  accused  got  the  summons  issued 
on  their  o\vn  responsibility,  it  being  under- 
stood that  the  Court  would  not  adjourn  the 
case  if  the  witnesses  did  not  attend. 

On  the  third  point  the  reference  must,  in 
my  opinion,  prevail.  The  accused  retained 
the  money  against  the  debt  which  was 
owing  to  them  from  Chhidda  and  there  is 
nothing  to  show  that  in  doing  this  they 
acted  dishonestly.  The  Special  Magistrate 
does  not  appear  to  have  applied  his  mind 
to  this  point  at  all.  I  agree  with  the 
learned  Sessions  Judge  that  the  facts  do 
not  establish  a  case  under  s.  406,  Indian 
Penal  Code, 

1  accordingly  accept  this  reference  and 
set  aside  the  conviction  of  the  applicants. 
The  fine,  if  paid,  will  be  refunded. 

s.  s.  Conviction  set  aside. 

(1)  22  A.  106;  A  W.  N.  (1899)  211;  9  Ind.  Dec  (N.  e) 
1100. 

(2)  22  lad.  Gas.  734;  36  A.  129;  15  Or.  L.  J,  158,  12 
A.  L.  J.  106, 

(3)  22  Ind,  Gas*  145;  36  A.  53;  12  A.  L.  J.  lj  15 
Cr,  L.  J,  1, 


In  re  VEK UGOPAL 


[92 10.1926] 


MADRAS  HIGH  COURT. 

CRIMINAL  MISCELLANEOUS  PETITION  No.  180 

OP  1925. 

July  23,  1925. 

Present:— Mr,  Justice  Devadoss  and 

Mr,  Justice  Waller, 

7»  re  VENUGOPAL  NAYUDU— 

PETITIONER. 

Legal  Practitioners  Act  (XVIII  of  1870},  8  11+— 
Legal  practitioner \  misconduct  of — Jurisdiction  to  in- 
quire, into,  whether  confined  to  Court  in  which  miscon- 
duct committed—  Transfer  of  proceedings,  competency 

of. 

Section  14  of  the  Legal  Practitioners  Act  does  not 
limit  the  consideration  of  a  charge  of  misconduct 
against  a  legal  piactitioner  to  the  Court  in  which  the 
misconduct  is  alleged  to  have  been  committed  Any 
Court  in  which  the  Picador  practises  is  empowered  to 
entertain  a  petition  under  the  section. 

In  re  Rabindra  Chandra  Chatter jee,  67  Ind.  Cns. 
983;  49  0.  850,  35  0  L.  J  520;  A.  I,  R.  1922  CaL  484, 
followed. 

Emperor  v.  Satyendra  Kath  Roy,  57  Ind.  Cas  277; 
1  P  L  T  379,  (1920)  Pat  225,  21  Or.  L  J  613  and 
In  re  Radha  Churn  Chukerbutty,  10  0  W.  N.  1059,  4 
C  L  J  229;  4  Or  L  J  1GO,  dissented  from. 

A  Magistrate  who  has  been  moved  under  s  14  of 
the  Legal  Practitioners  Act  to  institute  proceedings 
against  a  legal  practitioner  for  misconduct  has  no 
jurisdiction  to  transfer  the  proceedings  to  a  subordi- 
nate Magistrate  for  action  or  to  direct  him  to  hold  a 
preliminary  inquiry. 

Petition,  under  s.  107  of  the  Government 
of  India  Act,  1915,  praying  that  in  the 
circumstances  stated  therein  the  High 
Court  will  be  pleased  to  quash  the  pro- 
ceedings in  Current  No.  (J1*B  of  1925,  dated 
the  22nd  February  1925,  on  the  file  of  the 
Court  of  the  First  Class  Sub-Divisional 
M&gisratl,  Pattukottai. 

Mr.  /£.  S.  Jayarama  Iyer,  for  the  Peti- 
tioner. 

The  Public  Prosecutor,  for  the  Crown. 

ORDER* — Petitioner  who  is  a  First 
Grade  Pleader  has  been  charged  under  F.  14 
of  the  Legal  Practitioners  Act  by  the  Sub- 
Divisional  Magistrate,  Pattukottah.  He  was 
engaged  to  represent  the  accused  in  a 
security  case  and  all  the  charges  against 
him  except  one  alleged  various  acts 
of  misconduct  in  relation  to  that  case. 
These  charges  were  made  to  the  District 
Magistrate,  Tanjore,  by  the  Deputy 
Superintendent  of  Police,  who  suggested 
that  proceedings  should  be  taken  against 
petitioner  under  the  Legal  Practitioners 
Act.  In  the  result  the  Additional  District 
Magistrate  forwarded  the  Police  report 
to  the  Sub-Divisional  Magistrate,  Pattu- 
kottah for  enquiry  and  the  latter  issued 
notice  to  petitioner  under  s.  14  of  the  Act.  It 
is  not  c^uite  clear  what  was  ia  the  mind  of 


the  Additional  District  Magistrate  whether 
he  intended  that  the  Sub-Divisional  Magis- 
trate should  himself  dispose  of  the  charges 
or  whether  his  idea  was  that  a  sort  of  pre- 
liminary enquiry  should  be  held  and  a  re- 
port should  be  submitted  with  a  view  to 
possible  future  action  by  himself.  From 
either  point  of  view,  he  acted  without 
jurisdiction.  The  Legal  Practitioners  Act 
makes  no  provision  either  for  the  transfer 
of  proceedings  or  for  the  holding  of  a  pre- 
liminary enquiry  of  such  a  nature.  Mr. 
Jayarama  Aiyar  contends  that  in  any  event 
most  of  the  charges  against  his  client  can- 
not be  enquired  into  as  they  relate  to  alleg- 
ed acts  of  misconduct  not  committed  in  or 
ia  relation  to  the  Court  which  proposes  to 
enquire  into  them.  That,  we  consider,  is 
an  objection  that  should  more  properly  be 
taken  before  the  District  Magistrate,  who 
will  now  proceed  to  deal  with  the  matter 
himself.  As,  however,  it  has  been  taken  here, 
we  may  as  well  dispose  of  it  at  once.  The 
view  relied  on  by  Mr.  Jayarama  Iyer  finds 
support  in  several  decisions  of  the  Patna 
High  Court  of  which  we  may  quote  that 
reported  in  Emperor  v.  Satyendra  Nath  Roy 
(1)  as  an  example,  The  same  view  has  been 
expressed  by  the  Calcutta  High  Court  in 
In  re  Radha  Churn  Chukerbutty  (2).  With 
great  respect,  we  prefer  to  follow  the  rul- 
ing of  the  Calcutta  High  Court  reported  as 
In  re  Rabindra  Chandra  Chatterjee  (3).  As 
pointed  out  by  Woodroffe,  J.,  andMookerjee, 
J.,  s.  14  of  the  Legal  Practitioners  Act  does 
not  limit  the  consideration  of  a  charge  to 
the  Court  in  which  the  misconduct  is  alleg- 
ed to  have  been  committed.  To  say  that  it 
does,  is,  we  think,  to  read  into  s.  14  some- 
thing that  is  not  there. 

The  District  Magistrate  will  now  dispose 
of  the  report  made  to  him  in  accordance 
with  law,  but  we  think  it  undesirable  that 
proceedings  for  misconduct  against  the 
defence  Vakil  should  be  taken  before  the 
security  case  against  his  client  has  been 
disposed  of. 

v.  N,  v.  Case  remanded. 

(1)  57  Ind.  Cos  277;  1  P.  L.  T.  379,  (1920)  Pat. 
225;  21  Cr.  L.  J  613. 

(2)  10  C.  W.  N.  1059;  4  C.  L,  J.  229;  -i  Cr.  L.  J, 
160 

(3)  67  Ind.  Ces  985;  49  0.  850;  35  0.  L.  J,  520;  A, 
I.  R.  1922  Cal.  484. 


WlLiYAf f  BtiOAtf  V.  JitAtf  Dtf  MAL-MtTtfCT  LAL. 


[92  I.  0. 1926] 

CALCUTTA  HIGH  COURT. 

APPEALS  FROM  ORDERS  Nos.  48  AND  49 

OP  1924. 
June  24,  1925. 
Present: — Mr  Justice  Cum  ing  and 

Mr.  Justice  Chakravarti 

DURGA  PROSAD  LAHIRI  CHOUDHURI 

AUD  OTHERS— DIPBNDANTS— APPELLANTS 

versus 
EATAN  MAHOMMED  SARKAR— 

PHINTIFF  AND  OTHERS— Pro  -forma 

RESPONDENTS— RESPONDENTS. 

Bengal  Tenancy  Act  (VIII  of  1S8J\  Sch  III, 
Art,  3-- Landlord  and  tenant — Dispossession  of  tenant 
by  purchaser — Possession,  suit  to  recover — Limita- 
tion. 

Where  an  agent  of  the  landlord  purchases  a  portion 
of  a  tenant's  jote  and  as  such  purchaser  dispossesses 
the  tenant  from  the  portion  pui  chased,  a  suit  by  the 
tenant  to  recover  possession  of  the  poition  of  the  }ote 
from  which  he  has  been  dispossessed  is  not  ..governed 
by  Art  3  of  Sch  III  to  the  Bengal  Tenancy  Act. 

Appeals  against  the  orders  of  the  Sub- 
ordinate Judge,  Dinajpur,  dated  the  19th  of 
June  1923,  reversing  those  of  the  Munsif 
First  Court  at  Dinajpur,  dated  the  24th 
of  April  1922. 

Babu  Ramendra  Mohan  Majumdar,  for  the 
Appellants. 

Moulvi  A.  S.  M.  Akrarn,  for  the  Respond- 
ents. 

JUDGMENT. 
Itf  APPEAL  No.  48  OF  1924. 

Chakravarti,  J.— This  is  an  appeal 
by  the  defendants  and  arises  out  of  a  suit 
for  possession  of  a  share  of  a  jote  by  the 
plaintiff.  The  main  ground  of  defence  was 
that  the  suit  was  barred  by  the  special  Law 
of  Limitation  as  provided  for  in  Art.  Ill  of 
Sch.  Ill  to  the  Bengal  Tenancy  Act.  This 
defence  was  given  effect  to  by  the  Trial 
Court  and  the  suit  was  dismissed,  On 
appeal  by  the  plaintiff  the  learned  Subordi- 
nate Judge  of  Dinajpur  has  found  that  the 
plaintiff  has  purchased  a  share  of  the  jotc 
from  the  owners  thereof  and  that  disposses- 
sion was  by  one  Jogendra  who  ha'cT  purchas- 
ed also  a  share  of  the  same  jote.  Although 
Jogendra  was  an  officer  of  the  defendant 
the  landlord  the  finding  of  the  lower  Appel- 
late Court  is  that  Jogendra  dispossessed  the 
plaintiff  as  a  purchaser  of  a  share  of  the 
joie  and  not  as  an  agent  of  the  landlord. 
In  this  view  the  lower  Appellate  Court  held 
that  the  suit  was  not  barred  by  limitation 
and  sent  the  case  back  to  the  learned  Munsif 
for  ascertaining  the  share  which  the  plaint- 
iff had  purchased  and  on  such  ascertain- 
ment of  the^hare  the  learned  Subordinate 


Judge  has  directed  the  decree  to  be  awarded 
to  the  plaintiff. 

The  only  ground  which  was  taken  by  the 
learned  Vakil  for  the  appellant  was  that  the 
Trial  Court  had  found  that  Jogendra  was 
really  a  benamdar  for  the  landlord  the 
defendant  as  such  the  dispossession  effected 
by  Jogendra  was  the  dispossession  effected 
by  the  landlord.  The  learned  Vaku  for 
the  appellant  contended  that  the  finding 
of  benami  arrived  at  by  the  Trial  Court 
had  not  been  specifically  dealt  with  by  the 
lower  Appellate  Court. 

I  do  not  think  that  this  contention  should 
prevail.  The  learned  Subordinate  Judge 
found  that  Jogendra  purchased  the  land 
and  dispossessed  the  plaintiff  as  such  pur- 
chaser and  not  as  an  agent  of  the  landlord. 
I  think  the  finding  is  quite  sufficient  for 
the  purpose  of  holding  that  the  disposses- 
sion was  not  by  the  landlord,  nor  was  it  on 
his  behalf.  Therefore  it  seems  that  the 
judgment  of  the  lower  Appellate  Court  is 
correct  and  this  appeal  should  be  dismiss? 
ed  with  costs. 

Cuming,  J.— I  agree, 

IN  APPEAL  No.  49  of  1924. 

Our  judgment  in  the  analogous  Appeal 
No.  48  of  1924  will  govern  this  appeal  also, 

z,  K.  Appeals  aismimd, 


ALLAHABAD  HIGH  COURT. 

PRIVY  COUNCIL  APPEAL  No.  39  OF  1925 

December  18,  1925. 
Present;  —Sir  Grimwood  Mears,  KT  , 
Chief  Justice,  and  Mr  Justice  Lincjsav 
WILAYATI  BEGAM  AND  ANOTHER-- ' 

DEFENDANTS — APPELLANTS 

versus 
FIRM  JHANDU  MAL-MITHQ  LAL— 

PLAINTIFF-— RESPONDENT. 

Limitation  Act  (IX  of  1008),  s  U  (3),  Sch.  I 
Art  170--Civil  Procedure  Code  (Act  V  of  1008),  s '  J09 
— Leave  to  appeal  to  Privy  Council,  application  for 
— Limitation  —  Time  spent  in  obtaining  copy  of  mdg- 
ment,  whether  can  be  excluded 

Sub-section  (3)  of  s,  12  of  the  Limitation  Act  does  not 
apply  to  an  application  for  leave  to  appeal  to  His 
Majesty  in  Council  The  time  spent  in  obtaining  a  copy 
of  the  judgment  appealed  from  cannot,  therefore,  be 
excluded  m  computing  the  period  of  limitation  pre- 
scribed for  such  application. 

Application  for  leave  to  appeal  to 
Majesty  in  Council, 

Mr.N,  P.  A0ttana,for  the  Appellant*, 


898  BHAG  WANDAS-  PARAS 

Messrs.  Iqbal  Ahmad  and  S.  B.  Johari,  for 
the  Respondent. 

JUDGMENT.— A  question  of  limita- 
tion arises  in  connection  with  this  applica- 
tion for  leave  to  appeal  to  His  Majesty  in 
Council.  The  judgment  of  this  Court  was 
delivered  on  the  30th  of  March  1925,  and 
admittedly  the  application  for  leave  to 
appeal  was  not  presented  till  the  20th  of 
October  1925. 

Certain  reasons  are  given  in  explanation 
of  the  delay.  It  is  said  that  some  time  had 
to  be  taken  for  the  purpose  of  obtaining  a 
copy  of  the  decree  of  this  Court,  and  further 
it  is  said  that  some  time  was  taken  for  the 
purpose  of  obtaining  a  copy  of  this  Court's 
judgment. 

It  is  argued  on  behalf  of  the  applicant 
that  if  both  the  periods  just  referred  to  can 
be  taken  into  consideration  and  allowed, 
then  the  application  for  leave  to  appeal  is 
within  time.  It  is  conceded,  however,  that  if 
sub  s.  (3)  of  s.  12  of  the  Limitation  Act  does 
not  apply  to  the  case  now  before  us,  then  it 
must  be  held  that  the  application  for  leave 
is  beyond  time. 

Section  12  of  the  Limitation  Act  provides 
for  exclusion  of  time  which  is  consumed  in 
certain  legal  proceedings  which  are  obliga- 
tory. In  sub-s.  (2)  of  s.  12  it  is  provided  that 
in  computing  the  period  of  limitation  pre- 
scribed for  an  appeal,  an  application  for 
leave  to  appeal,  and  an  application  for  a 
review  of  judgment,  the  day  on  which  the 
judgment  complained  of  was  pronounced 
and  the  time  requisite  for  obtaining  a  copy 
of  the  decree,  sentence  or  order  appealed 
from  or  sought  to  be  reviewed,  shall  be  ex- 
cluded. Clearly  this  sub  section  provides 
in  the  cases  mentioned  for  the  exclusion  of 
the  time  which  is  necessary  for  obtaining 
copies  both  of  the  judgment  and  of  the 
decree. 

When  we  come,  however,  to  sub  s.  (3)  we 
find  it  laid  down  as  follows:  " Where  a 
decree  is  appealed  from  or  sought  to  be 
reviewed,  the  time  requisite  for  obtaining  a 
copy  of  the  judgment  on  which  it  is  founded 
shall  also  be  excluded1*.  The  question  is 
whether  sub-s.  (3)  of  s.  (12)  applies  to  a  case 
of  this  kind,  namely,  an  application  for  leave 
to  appeal  to  His  Majesty  in  Council  In  our 
opinion  it  does  not.  To  begin  with  the 
language  of  stib-s.  (3),  when  contrasted  with 
sub-s,  (2),  clearly  contemplates  the  exclusion 
from  the  scope  of  sub  s,  (3)  of  the  case  of  an 
application  for  leave  to  appeal;  and  further 
it  is  to  be  noted  that  for  the  purpose  of 


RAM  V.  JADO  NATit  [9&  I.  0,  1&26J 

maidng  an  application  for  leave  to  appeal 
to  His  Majesty  in  Council,  the  rules  of  this 
Court  do  not  make  it  necessary  that  the 
applicant  shall  at  the  time  of  filing  his 
application  for  leave  file  also  a  copy  of  the 
judgment  on  which  the  decree  is  founded. 
That  being  so,  it  seems  to  us  that,  for  the 
reasons  just  given,  we  must  hold  that  the 
present  application  is  beyond  time.  The 
applicant  is  not  entitled  to  exclude  the  time 
which  he  tookjn  obtaining  a  copy  of  the 
judgment  of  this  Court,  The  application 
is,  therefore,  dismissed  with  costs  including 
fees  on  the  higher  scale. 
2,  K.  Application  dismissed. 


LAHORE  HIGH  COURT. 

MjsosLLANfioua  CASK  No.  244  OP  1925. 
(LETTERS  PATENT  APPEAL  No.  244  op  1923 ) 

November  25, 1925. 

Present :— Sir  Shadi  Lai,  KT., 

Chief  Justice,  and  Mr.  Justice  LeRossignol 

THE  FIRM  BHAGWAN  DAS-PARAS 

RAM  TiiRouuH  LACHMI  NARAIN— 

DECREE  HOLDER—PETITIONER 

versus 
JADO  NATH  AND  OTHERS— DEFENDANTS — 

JuDOMENT-DfiUTO^S — RESPONDENTS 

Civil  Procedure! Code  (Act  V  of  1908),  0.  XXI,  r.  50 
--Execution  of  decree— Decree  against  property '  of 
firm — Liability  of  individual  members, 

The  mere  Circumstance  that  a  decree  passed  against 
a  firm  as  it  stands  can  be  executed  only  against  the 
property  of  the  firm  does  not  preclude  its  eventual 
execution  against  the  individual  partners  of  the  fiim 
as  soon  as  any  or  all  of  the  conditions  set  forth  in 
0.  XXI,  r.  50,  0.  P.  0  ,  are  fulfilled. 

Petition  for  review  of  an  order  passed  on 
the  21st  January  1925,  in  the  Letters  Patent 
Appeal  case  noted  abbve,  by  the  High 
Court. 

Mr  Stidmair  Chandand  Lala  JaganNath, 
for  the  Petitioner, 

Mr  Nanak  Chand  Pandit,  for  the  Re- 
spondents. 

ORDER.—  The  sole  object  of  this  re- 
view is  to  have  it  made  clear  that  our 
judgment  of  the  21st  January  1925  does 
not  conclude  the  question  whether  the 
decree  may  be  executed  against  the  judg- 
ment-debtors  individually.  Before  the 
learned  Judge  in  Chambers  the  only 
matter  decided  was  whether  the  order  of  the 
Executing  Court  passed  in  review  was  com- 
petent. The  other  issues  in  this  case  were 
not  decided  by  him  iia^ruuchas  his  de- 


BAIKUNtflA  NATH  DE  V.  8HAIK  HARI. 


[92  L  0. 1926J 

cision  on  the  first  point  rendered  their  ad- 
judication unnecessary. 

There  can  be  no  doubt  that  the  decree 
as  it  stands  can  be  executed  only  against 
the  property  of  the  firm,  but  that  circum- 
stance does  not  preclude  the  eventual  exe- 
cution of  the  decree  against  the  individual 
partners  as  soon  as  any  or  all  of  the  con- 
ditions set  forth  in  O.  XX  [,  r.  50  are  es- 
tablished. 

We  accordingly  review  our  judgment  of 
the  21st  January  1925  so  far  as  to  make  it 
clear  that  that  judgment  in  no  way  debars 
the  Executing  Court  from  trying  the  other 
issues  in  the  case  relative  to  the  liability  of 
the  individual  members  of  the  firm  to  satis- 
fy out  of  their  own  property  the  decree 
issued  against  the  firm. 

In  this  hearing  the  parties  shall  bear 
their  own  costs. 

R,  i.        '  Order  accordingly. 


699 


cause  nature  and  no  second  appeal  lay  in- 
asmuch as  the  amount  of  the  claim  was 
less  than  Rs.  500.  It  is  urged  that  when 
the  objection  was  taken  before  the  learned 
Judge  who  decided  the  second  appeal,  he 
overruled  it.  We  consider  the  learned 
Judge  is  perfectly  right  in  Overruling  the 
objection  as  the  main  issue  in  the  case 
related  to  the  question  of  title.  No  doubt 
a  Small  Cause  Court  is  entitled  to  decide  a 
question  of  title  if  it  arises  incidentally. 
But  where  the  plaint  and  the  written  state- 
ment show  that  the  issue  to  be  fought  out 
and  decided  is  one  of  title,  we  think  the 
suit  cannot  be  considered  to  be  one  of  small 
cause  nature. 

There  is  no  other  point  raised  in  this  ap- 
peal.   The  appeal  is  dismissed  with  costs. 

v.  N,  v.  Appeal  di$mi$$edt 

z,  K, 


MADRAS  HIGH  COURT. 

LETTERS  PATENT  APPEAL  No.  112  OF  1924, 

October  7,  1925. 
Present:— Mr.  Justice  Devadoas  and 

Mr  Justice  Waller. 

Sri  Mahant  PRAYAQA  DOSS  JEEVARU 
— PLAINTIFF  —APPELLANT 

versus 
PACHELLA  DORAISWAMIIYENGAR* 

AND  ANOTHER—  DEFENDANTS — RESPONDENTS. 
Provincial  Small  Cause  Courts  Act   (IX  of  1887), 
s  23 — Suit  involving  question  of  title,  whether  of  small 
cause,  natui  e 

A  Small  Cause  Court  is  entitled  to  decide  a  question 
of  title  if  it  arises  incidentally,  but  where  the  plaint 
and  the  written  statement  show  that  the  issue  to  be 
fought  out  and  decided  is  one  of  title,  the  suit  cannot 
be  considered  to  be  one  of  small  cause  nature 

Letters  Patent  Appeal  against  the  judg- 
ment and  decree  of  Mr  Justice  Wallace, 
dated  the  27th  of  March  1924,  in  S.  A. 
No.  1131  of  1921,  preferred  to  the  High 
Court  against  a  decree  of  the  Court  of  the 
Subordinate  Judge,  Chittor,  in  A.  8  No.  32 
of  1920,  preferred  against  that  of  the  Court 
of  the  District  Munsif,  Sholinghur,  in  0.  S. 
No  444  of  1918. 

Mr.  T,  Kumaraswamiahi  for  the  Appel- 
lant 

Mr.  K.  S.  Chempakesa  lyeitgar,  for  the 
Respondents, 

JUDGMENT.— The  only  poiat  urged 
in  this  appeal  is  that  the  suit  i?  of  a  email 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE  No.  2043 

OP  1922. 

June  24, 1925, 

Present :— Mr  Justice  Cuming  and 

Mr.  Justice  Chakravarti. 
BAIKUNTHA  NATH  DE  AND 
OTHERS— DEFENDANTS  Nos.  1  AND  2 — 
APPELLANTS 

versus 

SHAIK  HARI — PLAINTIFF  AND  ANOTHER — 
DEFENDANT  No,  3— RESPONDENTS. 

Ejectment  buit --Non-joinder  of  party,  effect  of — 
Appeal,  second — Permanent  tenancy,  finding  as  to — 
High  Court,  interference  by 

The  meie  non-jomder  of  a  party  in  an  ejectment 
suit  is  not  fatal  to  the  trial  of  the  suit  The  only 
result  of  such  non-joinder  would  be  that  the*  party  not 
nnpleaded  will  not  be  bound  by  any  deciee  passed  m 
the  suit. 

Where  a  lower  Appellate  Court  refuses  to  diaw  on 
inference  of  the  permanency  of  a  tenancy  from  the 
facts  that  the  tenancy  is  an  old  one,  that  the  rent  has 
not  been  varied  and  that  the  land  was  let  out  for  the 
purpose  not  of  building  any  permanent  structure  but 
of  raising  huts,  there  is  no  error  of  law  which  would 
justify  the  interference  of  the  High  Court  in  second 
appeal 

Appeal  against  a  decree  of  the  Sub- 
ordinate Judge,  Additional  Court,  Burdwan, 
dated  the  lt>th  of  May  1922,  reversing  that 
of  the  Munsif,  First  Court,  Burdwan,  dated 
the  9th  of  May  1921. 

Dr.  Jadu  Nath  Kanjilal  and  Babu  Ptmia 
Chandra  Chandra,  for  the  Appellants. 
Babu  Charu  Chandra  Ganguli,  for  the  Kp« 


900 


felfll  KHODAIJATUL  kOBPi  t>. 


[92  I.  0.  19S&J 


JUDGMENT. 

Chakravarti,  J.— This  is  an  appeal 
by  defendants  Nos.  1  and  2  and  arises  out 
of  a  suit  for  ejectment  by  the  plaintiff. 
The  defence  of  the  defendants  was  that 
the  tenancy  was  a  permanent  one  and  was 
not,  therefore,  determinable  by  the  plaintiff- 
laidlord. 

The  Court  of  first  instance  dismissed 
the  suic.  The  lower  Appellate  Court  re- 
versed that  judgment  and  decreed  the 
plaintiffs  suit  with  costs  and  made  a 
decree  for  ejectment  giving  the  defendants 
six  months1  time  to  vacate  the  land. 

In  this  second  appeal  by  the  defendants 
the  learned  Advocate  for  the  defendants 
contended  first  that  the  suit  was  bad,  be- 
cause one  of  the  sub- lessees  was  not  a 
party  to  the  suit.  We  do  not  think  that 
mere  non- joinder  of  a  party  in  an  eject- 
ment suit  is  fatal  to  the  trial  of  the 
case.  It  may  be  that  the  party  not  being 
impleaded  may  not  be  bound  by  the  decree, 
But  so  far  as  the  defendants  are  con- 
cerned it  has  been  found  that  they  have 
no  right  to  retain  possession  of  the  land. 

The  second  ground  which  was  suggested 
was  that  upon  the  facts  found  by  the 
lower  AppelJate  Court  we  ought  to  pre- 
sume that  the  tenancy  held  by  the  defend- 
ants was  a  permanent  one.  The  only 
facts  found  are  that  the  tenancy  was 
created  more  than  74  years  ago  and  the 
rent  has  not  been  changed  during  all 
these  years.  The  lower  Appellate  Court, 
however,  points  put  that  there  has  been 
no  case  of  succession  in  this  case,  because 
the  different  tenants  who  held  the  land 
were  not  shown  to  have  claimed  through 
each  other.  Therefore  in  this  case  the 
only  facts  found  are  that  the  tenancy  is 
an  old  one  and  the  rent  has  not  been 
varied  and  that  the  land  was  let  out  for 
the  purpose  not  of  building  any  perman- 
ent structure  but  of  raising  huts,  I  do 
not  think  that  there  was  an  error  of  law 
in  the  judgment  of  the  lower  Appellate 
Court  when  that  Court  refused  to  draw 
an  inference  of  permanency  on  the  facts 
found. 

The  appeal,  therefore,  fails  and  is  dis- 
missed with  costs.  . 

Cumlnar,  Jt— I  agree. 

I,  K,  Appeal  dismissed. 


PATNA  HIGH  COURT. 

APPEALS  FROM  APPELLATE  ORDERS  Nos.  171 

AND  172  t>#  1924. 

March  18,  1925. 

Present: — Justice  Sir  B.  K.  Mullick,  KT., 

and  Mr.  Justice  Ross. 
Musammat  BIBI  KHODAIJATUL  KOBRA 

AND  OTHERS— DliCREE-HOLDERS — APPELLANTS 

versus 
HARIHAR  MISS1R  AND  OTHEKS— 

JUDSMENT-DEUTORS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  B.  $7  (b)-~ 
Decree  passed  by  Court  of  Additional  Subordinate 
Judge — Court  abolished  temporarily  and  re-eatabluhed 
—  Jurisdiction  to  execute  decree. 

A  chciea  was  passed  by  the  Court  of  the  Additional 
Subordinate  Judge  and  shortly  afterwards  the  Court 
was  abolished  and  the  work  of  that  Court  was  trans- 
ferred to  another  Court  After  a  brief  interval,  how- 
ever, the  Court  of  the  Additional  Subordinate  Judge 
was  re-established  and  an  application  to  execute  the 
decree  was  made  to  that  Couit . 

Held,  that  by  virtue  of  the  provision  contained  in 
sub-s  (6)  of  s  37  of  the  C.  P.  C.  the  Court  of  the 
Additional  Subordinate  Judge  had  jurisdiction  to 
execute  the  decree,  [p.  001,  col.  1  ] 

Appeals  from  an  order  of  the  District 
Judge,  Gaya,  dated  the  23rd  April  1924,  re- 
versing that  of  the  Subordinate  Judge, 
Qaya,  dated  the  15th  December  1923. 

8yed  Nurul  Hasan,  for  the  Appellants. 

Mr.  S.  N.  Roy,  for  the  Respondents. 

JUDGMENT. 

Mullick,  J.— These  two  appeals  arise 
out  of  two  orders  made  by  the  District 
Judge  of  Gaya  on  the  23rd  April  1924,  set* 
ting  aside  two  orders  made  on  the  15th  De- 
cember 1U23  by  the  Additional  Subordinate 
Judge  of  that  District, 

The  events  leading  up  to  the  last  men* 
tioned  orders  were  as  follows  :  Two  decree  8 
were  made  on  the  Slsfc  August  1920  by  the 
Additional  Subordinate  Judge  of  Gaya. 
Sometime,  aftefrwards,  it  is  not  known  on 
what  precise  dffcte,  the  Court  of  the  Addi- 
tional Subordinate  Judge  was  abolished  and 
the  business  of  that  Court  was  transferred 
to  the  Third  Subordinate  Judge's  Court. 
Subsequently  the  Additional  Court  was 
re-established  and  on  the  27th  August 
1923  two  applications  were  made  to  it  for 
the  execution  of  those  decrees,  and  on  thb 
15th  December  1923  the  Court  held  that  he 
had  j  urisdiction  to  entertain  the  applica- 
tions. 

Against  this  decision  two  appeals  were 
preferred  before  the  District  Judge  who 
disagreed  with  the  Additional  Subordinate 
Judge  and  held  that  the  Additional  Sub-* 
ordinate  Judge  had  no  jurisdiction 


[98  I.  0. 1926] 


mar  KHODAIJATUL  KOURA  v,  tutmuu  UISSIR, 


901 


that  the  execution  applications  must  be  dis- 
missed. 

Now  the  matter  turns  upon  ss  37  and  38 
of  the  0.  P.  0.  of  1908,  The  learned  Dis- 
trict Judge  is  of  opinion  that  the  Addition- 
al Subordinate  Judge's  Court  having  ceased 
to  exist,  the  present  Additional  Subordinate 
Judge's  Court  cannot  bte  the  Court  which 
passed  the  decree,  and,  therefore,  is  not 
competent  to  entertain  the  execution  appli- 
cation. The  learned  Judge  does  not  ad- 
dress himself  to  the  latter  part  oxf  sub  -cl.  (6) 
of  s.  37  which  provides  that  if  the  Court  of 
first  instance  has  ceased  to  exist  or  to 
have  jurisdiction  to  execute  the  decree  the 
Court  which,  if  the  suit  wherein  the  decree 
was  passed  was  instituted  at  the  time  of 
making  the  application  for  the  execution  of 
the  decree,  would  have  jurisdiction  to  try 
such  a  suit,  shall  be  included  within  the 
expression  "the  Court  which  passed  the 
decree/'  Therefoie,  even  if  it  be  held  in 
this  case  that  the  Court  of  first  instance 
has  ceased  to  exist,  the  present  Addi- 
tional Subordinate  Judge  would  have 
jurisdiction  to  execute  the  decree  if  he 
has  jurisdiction  to  try  the  suit  to  which  the 
decree  relates.  Nowj  there  is  nothing  on 
the  record  to  show  that  the  present  Addi- 
tional Subordinate  Judge  has  not  got  jur- 
isdiction to  try  the  suit.  Ordinarily  Ad- 
ditional Subordinate  Judges  have  jurisdic- 
tion over  the  whole  district  and  unless 
that  jurisdiction  has  been  curtailed  by  an 
express  order  made  by  the  Local  Govern- 
ment under  8^13  of  the  Civil  Courts  Act 
or  in  consequence  of  re- arrangement  of 
business  made  by  the  District  Judge  under 
sub-cl.  (2)  of  that  section  it  must  be  as- 
sumed that  the  Additional  Subordinate 
Judge  has  jurisdiction  to  try  tLe  suit  and, 
therefore,  also  to  execute  'the  decree. 

In  point  of  fact  I  doubt  if  it  can  be  said 
that  the  Court  of  the  Additional  Subordi- 
nate Judge  has  ceased  to  exist.  What  has 
happened  is  that  the  Court  was  temporarily 
abolished  and  was  re  established  and  that 
at  the  time  when  the  application  for  exe- 
cution was  made  it  was  in  fact  in  exist- 
ence. It  is  contended  that  the  expression 
'ceased  to  exist*  means  "is  not  in  existence  at 
the  time  when  the  application  for,execution 
is  made."  If  that  view  is  accepted,  then  the 
Court  of  the  present  Additional  Subordinate 
Judge  being  tlie  Cpuit  which  passed  the 
decree  has  jurisdiction  to  execute  it.  The 
argument  of  the  respondents  is  that  if  a 
Court  ouce  ceases  to  exist  tfcat  Court 


not  again  be  revived  and  that  although 
another  Court  of  the  same  designation  is 
established  within  the  district  with  the 
same  jurisdiction  it  cannot  be  said  that  it 
is  the  same  Court.  Now  "Courts"  in  the 
Civil  Courts  Act  are  designated  by  their 
titles  and  if  there  are  more  Courts  than 
one  of  the  same  designation,  then  they 
are  further  distinguished  by  numerals.  If 
the  officer  presiding  over  the  Court  of  the 
First  Subordinate  Judge,  is  temporarily 
transferred  and  after  an  interval  another 
officer  is  appointed  to  preside  over  that 
Court  it  would  not  be  a  straining  of  ordi- 
nary language  to  hold  that  the  first  Court 
ceased  to  exist  but  has  been  re-established, 
I  am  of  opinion  that  in  this  case  the  Court  of 
the  present  Additional  Subordinate  Judge 
being  a  Court  of  the  same  designation  bears 
the  impress  of  the  identity  of  the  Court 
which  was  abolished. 

la  this  view  the  latter  part  of  s.  37,  cl.  (6) 
is  not  required  for  the  purposes  of  this 
case;  nor  has  the,  third  sub-clause  of  s.  13 
any  application. 

.Reference  has  been  made  to  s.  17  of  the 
Civil  Courts  Act ;  but  that  also  has  no 
application  to  this  case,  because  it  does  not 
relate  to  execution  proceedings. 

The  decision  in  Tara  Chand  Marwari  v. 
Ram  Nath  Singh  (1)  appears  at  first  sight 
to  be  against  the  view  which  we  have 
just  taken,  but  on.  an  examination  of  the 
facts  of  the  case  it  would  seem  that  the 
decision  there  turned  upon  the  question 
whether  there  was  at  the  time  when  the 
application  for  execution  was  made  any 
Additional  Subordinate  Judge  in  the  dis- 
trict. Apparently  there  was  not  and,  there- 
fore, the  permanent  Subordinate  Judge  of 
the  district  assumed  jurisdiction  over  the 
case.  But  while  the  execution  case  was 
proceeding,  another  officer  was  posted  to  the 
district  as  Additional  Subordinate  Judge 
and  the  question  arose  whether  the  perma- 
nent Judge  ceased  to  have  jurisdiction  to 
continue  the  execution  proceedings  which 
were  pending  before  him.  It  was  held  that 
he  had  jurisdiction  to  continue  the  proceed- 
ings. Reference  was  incidentally  made  in 
that  decision  to  s.  17  of  the  Civil  Courts 
Act;  but  it  is  not  clear  how  that  section  ap- 
plied, ~* 

The  result  is  that  upon  the  provisions  of 
the  C.  P.  0.  it  seems  quite  clear  that  the 
learned  District  Judge's  order  cannot  b$ 

(1)  4  0,  L,  J.  473, 


902 


MBBU2A  t>,  PAlZODBlN  ALt 


supported  and  that  the  Additional  Subordi- 
nate Judge's  order  was  correct. 

The  appeals,  therefore,  will  be  decreed 
with  costs.  There  will  be  separate  costs  in 
each  case. 

Ross,  J,— I  agree. 

z.  K,  Appeals  decreed, 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  ORIGINAL  DECREE  No.  107  OF 
1925. 

AND 

CIVIL  REVISION  CASH  No.  725  OF  19;'5.  . 

August  4, 1925. 
Present:— Justice  Sir  Hugh  Walmsley,  KT  , 

and  Mr.  Justice  Muker ji, 
KHURSHED  MEERZ  A  AND  ANOTHER- 

PLAINTIPFa—APPJBLLANTS 

versus 

Syed  FAIZUDD1N  ALI  AND  ANOTHBR— 
DEFENDANTS — RESPONDENTS. 

Religious  Endowments  Act  (XX  of  1868),  8.  19— 
Committee  of  management — Death  of  member — Suit  to 
compel  surviving  members  to  hold  flection— Decree — 
Election,  whether  can  be  set  aside  by  Court. 

On  the  death  of  one  of  the  members  of  a  Committee 
of  management  appointed  under  the  provisions  of  the 
Religious  Endowments  Act,  some  of  the  persons  in- 
terested in  the  endowment  instituted  a  suit  against  the 
surviving  members  of  the  Committee  praying  that  the 
Court  should  direct  the  defendants  to  take  proper 
steps  for  the  holding  of  an  election  to  fill  the  vacancy 
caused  by  the  death  of  one  of  the  members  The  suit 
was  decreed  and  the  defendants  were  directed  to  hold 
an  election  after  issuing  proper  notices.  An  election 
was  accordingly  held,  but  it  was  set  aside  on  the 
application  6f  one  of  the  defendants  and  the  suit  was 
dismissed  : 

Held,  that  the  suit  having  been  once  decreed  the 
Court  was  not  competent  to  entertain  any  subsequent 
application  by  any  party  and  had  no  power  to  set  aside 
the  election  which  had  been  held  in  pursuance  of  its 
own  order,  [p.  903,  col,  2.] 

Appeal  against  a  decree  of  the  District 
Judge,  Murshidabad,  dated  the  4th  of  May 
1925. 

Dr.  S.  C.  Basak  and  Babu  Charu  Chandra 
Choudhuri,  for  the  Appellant. 

Mr,  M.  SyedNashim  Ali,  Babus  Urukram 
Das  Chakravarti  and  Hemendra  Kumar 
Das,  for  tha  Respondents. 

Dr.  S.  C.  Basak  and  Babu  Hemendra 
Kumar  Dast  for  the  Petitioner. 

Mr.  M.  Syed  Nashim  Ali%  Babus  Urukram 
Das  Chakravarti,  Probodh  Chandra  Kar 
and  Bon  Behari  Sarkar>  for  the  Opfpbsite 
Party. 

JUDGMENT. 

Walmsley,  J<— This  appeal  is  directed 


[9810.1928] 


against  a  decree  which  purports  to  have 
been  passed  under  the  provisions  of  the 
Religious  Endowments  Act  (XX  of  1863)* 

In  the  City  of  Murshidabad  there  is  a 
wakf  estate  known  as  Basant  AH  Khan's 
endowment  estate.  Under  the  Act,  the 
management  of  this  endowment  is  vested 
in  a  manager  under  the  supervision  of  a 
Committee  of  three  members.  At  the  begin- 
ning of  the  present  year  the 'three  mem- 
bers were  Syed  Faizuddin  Ali,  Syed  Abdul 
Hussain  and  Mirza  Yahia  Sheraji,  On  Jan- 
uary 23rd,  however,  Syed  Abdul  Hussain 
died,  and  a  vacancy  was  created  on  the  Com- 
mittee. Under  s.  10  of  the  Act  it  was  the 
duty  of  the  two  remaining  members  to  take 
steps  to  elect  a  new  member  within  three 
months  of  the  vacancy  occurring.  One  of 
the  members  appears  to  have  issued  notice 
about  aji  election,  but  on  an  application  by 
some  of  the  interested  persons  the  learned 
Judge  held  that  the  notice  must  bo  issued 
by  both  members  and  that  a  notice  by  one 
alone  was  not  valid.  No  election,  therefore, 
was  held  on  that  notice.  Then  two  in- 
terested persons  Khurshed  Mirza  and  8ar- 
faraz  AH  Begg  filed  a  plaint,  with  the  Dis- 
trict Judge's  permission,  against  the  two 
remaining  members  as  defendants,  and  in 
this  plaint  the  prayers  were  (a)  that  the 
Court  should  direct  the  defendants  to  take 
proper  steps  for  the  holding  of  an  election, 
and  fix  a  date  within  which  the  notices 
should  be  issued,  and  (6)  that  the  Court 
should  remove  one  or  both  of  the  members 
in  case  of  default.  Mirza  Yahia  Sheraji 
professed  that  he  was  anxious  to  comply 
with  the  rules  but  that  he  was  thwarted  by 
his  colleague.  Syed  Faizuddin  said  that  an 
election  could  not  be  held  until  the  register 
of  electors  had  been  revised. 

The  learned  Judge  heard  arguments  and 
on  March  28th,  he  delivered  judgment:  he 
held  that  the  plaintiffs  had  a  cause  of  ac- 
tion, that  there  was  nothing  objectionable  in 
the  form  of  the  suit,  that  the  permission  to 
sue  had  been  given  in  accordance  with  law, 
and  that  the  register  of  electors  could  not 
be  revised  until  after  the  vacancy  had  been 
filled  up,  and  he  ordered  the  defendants 
jointly  to  issue  proper  notices  for  an  election 
by  April  22nd, 

No  appeal  was  preferred  against  this 
decree  and  it  was  in  fact  obeyed.  Noticf  s 
were  issued  by  the  defendants  fixing  April 
18th  as  the  date  of  the  election,  and  an  elec- 
tion was  held  on  that  date.  There  were  two 
candidates,  and  one  of  them,  Mahomed  Yusuf 


ftttfAN  8WGH  0.  RAlKA  SltfQfl, 


[90 1.  0. 1926] 

Saheb,  received  27  V&tesAnd  the  other  duly 
two.  The  result  Was  reported  to  the  Judge 
by  Mirza  Yahia  Sheraji  who  pointed  out 
that  his  colleague  had  uot  attended  the  elec- 
tion. 

Then  on  April  27th  Sayed  Faizuddin  pre- 
sented a  petition  to  the  Judge  objecting  to 
the  validity  of  the  election.  It  was 
ordered  that  the  petition  should  be  consider- 
ed at  the  final  hearing  of  the  case.  On  May 
2nd  the  learned  Judge  heard  arguments, 
and  on  the  4th  he  delivered  judgment;  he 
held  that  the  register  of  electors  was  incom- 
plete and  defective,  that  an  election  held 
under  the  supervision  of  only  one  member 
of  the  Committee  was  invalid  and  that  the 
plaintiffs  had  failed  to  prove  the  defendants 
guilty  of  any  misconduct,  and  on  these  find- 
ings he  dismissed  the  suit  with  costs  to  the 
defendant  Syed  Faizuddin.  This  is  the  judg- 
ment which  is  attacked  in  the  appeal. 

Other  proceedings  followed.  Two  new 
'interested  persons1  Syed  Kader  All  and 
Syed  Ishfaq  AH  on  May  13th  moved  the 
Judge  to  appoint  some  one  to  fill  the  vacancy. 
Notices  of  this  application  were  served  on 
Sayed  Faizuddin  and  Mirza  Yahia  Sheraji, 
On  June  13th  the  latter  objected  that  Maho- 
med Yusuf  Saheb  had  been  duly  elected, 
while  Kader  AH  and  Sarfaraz  Ali  asked  for 
an  adjournment.  The  learned  Judge,  how- 
ever on  the  same  day,  appointed  Syed 
Mehedi  Ali  to  be  a  member  of  the  Committee 
in  place  of  the  deceased  Syed  Abdul  Hos- 
sain.  This  is  the  order  which  forms  the  sub- 
ject of  a  rule  issfted  by  us  at  the  instance  of 
Khurshed  Mirza  and  Mirza  Yahia  Sheraji. 
To  this  narrative  of  the  facts,  I  must  add 
one  more  detail,  and  this  that  Mahomed 
Yusuf  Saheb  was  not  made  a  party  to  the 
proceedings  after  the  election  held  on  April 
18th. 

The  contention  of  the  plaintiffs  is  that 
their  suit  was  decided  on  March  23th  when 
the  learned  Judge  directed  the  defendants 
to  issue  notices.  This  contention  seems  to 
me  to  admit  of  no  answer.  The  plaint- 
iffs1 cause  of  action  was  default  on  the  part 
of  the  surviving  members  to  take  steps  to 
hold  an  election,  and  when  the  defendants 
were  ordered  to  issue  notices  by  April  22nd 
the  plaintiffs  had  obtained  all  that  they 
sought,  and  the  suit  was  at  an  end.  The 
cause  of  action  with  which  the  Judge  was 
dealing  in  his  second  judgment  was  some- 
thing that  had  happened  after  the  delivery 
of  his  first  judgment.  Moreover  the  person 
who  considered  himself  aggrieved  was 


80S 


either  of  the  plaintiffs  but  one  of  the  defend* 
ants,  and  the  proceedings  were^  really 
carried  on  at  his  instance,  and  at  this  stage 
of  the  case  Mahomed'  Ifusuf  Saheb  was  not 
made  a  party  although  the  validity  of  his 
election  was  being  discussed. 

For  these  reasons  I  hold  that  the  learned 
Judge's  decision  of  May  4th  was  wrong;  he 
should  have  refused  to  entertain  Syed  Faiz- 
uddin's  petition  on  the  ground  that  the  suit 
was  at  an  end.  The  appeal  is,  therefore,  allow- 
ed and  the  judgment  and  decree  of  May  4th 
are  set  aside. 

It  follows  as  a  corollary  that  the  Rule 
must  be  made  absolute  for  with  the  judg- 
ment of  May  4th  set  aside  there  isno  vacancy 
for  the  Judge  to  rill,  until  the  election  of 
April  18th  is  cancelled  by  proceedings  taken 
in  accordance  with  law. 

There  remains  the  question  of  costs.  I 
think  it  will  be  enough  to  order  Faizuddin 
to  bear  the  costs  of  the  plaintiffs  in  the  suit 
and  in  the  appeal,  in  other  respects  leaving 
the  parties  to  pay  their  own  coste»f 

The  hearing  fee  in  the  appeal  is  fixed  at 
three  gold  mohurs. 

Mukerji,  J.—  I  agree. 

z.  K.  Appeal  alloiued. 

Rule  made  absolute. 


OUDH   CHIEF    COURT. 

SECOND  CIVIL  APPEALS  Nos.  91  and  92 

OF  1925. 

December  9,  1925. 

Present:— Mr.  Justice  Raza. 

RUDAN  SINGH— PLAINTIFF— APPELLANT 

versus 

KALKA  SINGH  AND  OTHERS --DEPEND  ANTS — 
RESPONDENTS, 

U  P.  Land  Revenue  Act  (III  of  1901),  *s.  110,  11 7, 
113— Partition  proceeding— Objection  filed  after  ex* 
puy  of  period  fixed,  whether  can  be  entertained 

Where  an  objection  is  filed  in  a  partition  proceed- 
ing after  the  expiry  of  the  time  fixed  for  filing  ob- 
jections in  a  proclamation  made  under  s.  110  of  the 
U  P  Land  Revenue  Act,  but  before  the  Court  has 
taken  any  steps  under  a  113  of  the  Act,  the  Court  is 
not  precluded  fiom  dealing  with  the  objection,  and  if 
it  decides  it,  the  decision  will  be  taken  to  be  under 

8    111 

Second  appeal  against  a  decree  of  the 
Third  Additional  District  Judge,  Lucknow 
at  Hardoi,  dated  the  13th  November  1924, 
confirming  that  of  the  Assistant  Collector, 
First  Class,  District  Hardoi,  dated  the 
December  1923t 


904 

Mr,  Raj  Narain  Shukla^  for  the  Appel-  - 
lant, 

Mr.  Ghulam  Hasan,  for  the  Respondent. 
JUDGMENT.— These  appeals  arise  out 
of  certain  orders   passed  in  the  partition 
proceedings,    Rudan  Singh  is  a  mortgagee 
with  possession  of  2  biswas ^ share  in  villages 
Kudbapur  and  Bindhauri  from  Pancham 
Singh,    The  mortgagor  and  the  mortgagee 
jointly  filed   applications   for  partition  of 
both  the    villages.      A  proclamation  was 
issued  under   s.    110  of  the  Oudh    Land 
Revenue  Act  fixing  7th  March  1922  as  the 
date  on  which  objections  were  to  be  filed 
by  other    co-sharers.    There   were  seveial 
adjournments  and  then  certain  objections 
were  filed     by    the    applicants    and    the 
opposite  party  on  16th  March  1923.    There 
were    several     adjournments    again     and 
ultimately  another  objection  was  filed  by 
Kalka  Singh  and  others  (opposite  party)  on 
the   4th  September  1923.    That  objection 
was  to  the  effect    that    certain   sir   lands 
should  not  be  partitioned  and  should  be 
•allotted  to  their  9  liswas  share  exclusively. 
The  objection  was  fixed  for  hearing  for  the 
25th  September  1923.    On  the  25th  Septem- 
ber 1923  the  objection    was    brought  on 
record  in  the  presence  of  the  parties  and 
it  was  ordered  that  a  proclamation  should 
be  issued  fixing   30th    October    1923    for 
hearing.     There    were    several    heatings 
again    and     then   the    learned   Assistant 
Collector  passed  the  orders  in  question  on 
the  8th  December    1923  in  the  presence  of 
the  parties.      He  allowed  the  objection  and 
ordered  that  the  sir   plots  should  not  be 
partitioned   and  should  be  allotted  to  the 
objectors       exclusively.— The       applicant 
Sudan  Singh  appealed  but  his  appeals  were 
dismissed  by  the  Additional  District  Judge, 
oh  the  13th  November  1924.    He  has  now 
filed  these  second  appeals— So  far  as  I  see 
there  is  no  force  in  these  appeals. 

The  applicant's  contention  is  that  the 
respondents'  application  or  object  ion  should 
not  have  been  entertained  as  it  was  not 
filed  within  the  time  originally  fixed  for 
filing  objections  under  s.  110,  Oudh  Land 
Revenue  Act  and  that  the  appellant  was 
not  given  an  opportunity  to  contest  the 
respondents'  application  or  objection  and 
the  proceedings  were  irregular  and  bad  in 
law. 

The  first  contention  has  no  force.  Where 
an  objection  is  raised  after  the  appointed 
time  but  before  the  Court  has  taken  any 
steps  under  s.  113  of  the  Oudh  ~ 


PS  I,  0,1988] 

Act,  a  Revenue  Court  is  not  precluded  "from 
dealing  with  it  and  if  it  does  decide  It, 
the  decision  will  be  taken  to  be  under  s. 
Ill  of  the  Act.  Rule  9,  Circular  XXI, 
Deptt,  II  of  the  Boards  Circular  shows 
that  the  objections  could  be  entertained 
subsequent  to  the  date  originally  fixed  in 
the  proclamation.  The  ruling  in  Tulsi 
Prasad  v.  Matru  Mai  (1)  is  also  to  the 
same  effect.  The  Court  had  not  taken  any 
action  under  s.  113  of  the  said  Act  up  to 
that  time  and  I  think  the  objections  were 
properly  admitted  and  brought  on  record 
on  the  25th  September  1923.  The  learned 
Assistant  Collector  had  sound  reasons  for 
entertaining  the  objections.  I  think  he 
had  not  exercised  his  discretion  improper- 
ly in  this  case. 

The  second  contention  also  has  no  force. 
The  appellant  had    ample  opportunity  to 
make  any  objections  against  the  respondents' 
application  and  to  adduce  any  evidence  for 
disproving  the  allegations  contained  there- 
in.   However  he  failed  to  do  so,    He  filed 
no  defence  and  produced  no   evidence,  oral 
or  documentary,    though  he    had    ample 
opportunity  to  do  so.  The  order  in  question 
was  passed  about  %\  months  after  the  25th 
September  1^23.    He  had  full  knowledge 
of  the  respondents'  application  and  also  of 
the   documentary   evidence  produced    by 
them  but  nothing  was  said  or  done  by  him 
to  show  that  he  meant  to  oppose  the  re- 
spondents' application.    When  no  defence 
was  filed,  the  first  Court  could  not  frame 
any  issue.    The  Court  duly  considered  the 
documentary   evidence   produced    by   the 
respondents  and  decided  the  matter  in  thdr 
favour.    He  was  perfectly  right  in  doing  BO. 
The  documentary  evidence    shows  clearly 
that  the  sir  in  dispute  belongs  to  the   re- 
spondents exclusively.     The  procedure,  so 
far  as  applicable  to  this  case,  was  followed 
properly  and  there  was  no  miscarriage  of 
justice.    In  my  opinion  the  learned  Addi- 
tional District  Judge  was  perfectly  light 
in  dismissing  the  appeals. 

I  dismiss  both  the  appeals  with  costs  and 
order  the  appellant  to  pay  the  costs  of  the 
respondents. 

z,  K.  Appeal  dismissed, 

(1)  18  A,  210;  A,  W  N.  (1896)  30;  8  Ind.  Dec,  (N.  e.) 
846. 


ABDUL  WAHED  KHAN  U,  TAMIJAMNE99A  BIBT. 


[921,0.1926] 

CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE  No.  109 

OF  1923. 
June  29,  1925. 

Present;— Mr.  Justice  Cuming 

and  Mr.  Justice  Chakravarli. 

ABDUL  WAHED  KHAN  AND  ANOTHER- 

PLAINTIFFS— APPELLANTS 

versus 

Srimati  TAMLJANNESSA  BIBI 
AND  OTHERS— DEFENDANTS — RESPONDENTS 

Co~6harers- -Rent  due  pom  one  co-sharer  to  another 
— Set-off,  arrangement  as  to— Suit  to  recover  rent} 
maintainability  o/, 

An  arrangement  between  co-sluirers  whereunder 
rent  due  to  one  of  them  from  the  others  is  set  off 
against  the  rent  due  from  him  to  the  others,  the 
balance  alone  being  payable  m  cash,  does  not  prevent 
the  rent  from  falling  due  and  cJoes  not  operate  as  a 
bar  to  the  maintainability  of  a  suit  b>  one  eoshaier 
to  reco\er  rent  due  to  him  fiom  tho  other  co-shaiers 
It  is,  however,  ox>en  to  the  defendants  in  such  a  suit 
to  show  that  the  rent  has  already  been  paid  off  by 
S3t-of?  [p.  906,  col,  1  ] 

Appeal  against  a  decree  of  the  District 
Judge,  Midnapur,  dated  the  28th  of  June 
1922,  affirming  that  of  the  Munsif,  Second 
Court  at  Midnapur,  dated  the  4th  of  May 
1921. 

Mr.  8.  C.  Maity  and  Babu  Apurba  Charan 
Mookerjee,  for  the  Appellants. 

Mr.  Mohendra  Nalh  Roy  and  Babu  Santosh 
Kumar  Palt  for  the  Respondents. 

JUDGMENT. 

Chakravarti,  J.— This  is  an  appeal 
by  the  plainttffs  and  arises  out  of  a  suit  for 
rents  for  the  years  13:24  to  1327.    In  para.  8 
of  the  plaint,  the  plaintiffs  stated  amongst 
other  matters  this  "out  of  the  said  pur- 
chased niskar  property  plaintiffs  also  hav- 
ing  purchased  some  jote  right  lands  no 
rents  were  claimed  amongst  the  co-sharers 
and  the  rent  due  to  each  co-sharer  used  to 
be  set-off,  but  the  defendants  Nos,  1  and  2 
in  collusion   with    other    defendants  dis- 
regarded the  said  arrangement  and  institut- 
ed Title  Suit  No.  2062  of  1919  in  the  Munsif  s 
First  Court  Sadar  on  the  claim  of  getting 
mesne  profits   and    khas    possession  with 
regard  to  eome  other  jotes  by  the  plaintiffs 
Nos.  1  and   2   and  obtained  decree  with 
mesne  profits  from   1324  A.  S."    Now  the 
defence  of  the  defendants  was  substantially 
the  same  as  alleged  by  the  plaintiffs  that 
there  was  an  arrangement  between  the  co- 
sharers  by  >frhich  instead  of  paying  rent  to 
each  other  the  rent  due  to  each  other  was 
to   be  set-off.    But  the  written  statement 
goes  a  little  further  fbpp  what  was  stated 


905 


in  the  plaint.    It   seems   to   state  to   th6 
effect  that,  as  a  matter  of  fact,  no  rent  \\as 
payable    to    each  other    at    all.    Now    it 
appears  that  the  learned  Munsif  on  the  3rd 
of  May  1^21  recorded  the  following  order: 
"  Parties  are  ready.    Suit  taken  up.    Heard 
Pleaders  on    both  eides    about    maintain- 
ability of  the  suit  documents  Exs.   1  and  2 
marked  for  the  plaintiffs  and  A  and  B  for  the 
defendant.  Order  reserved."  It  appears  that 
the  learned  Munsif  proposed  to  try  the  ques- 
tion as  to  maintainability  of  the  suit  upon 
the     pleadings  and    also    upon    the   four 
Exhibits  which  were  marked  in  the  caee  a 
point  preliminary  to  the  trial  of  the  suit  on 
the   merits.    From    what  one  finds  in  the 
two  judgments  it  appears  that  the  question 
as  to  maintainability^  the  suit  was  tried  on 
the  pleadings  and  not  with  reference  to  any 
of  the  four  documents  which  were  marked 
as  exhibits  in  the  case.    The  learned  Mun- 
sif in  the  course  of  his  judgment  stated  as 
follows:    "It  is  stated  in    para.  8  of   the 
plaint    that  by   an  amicable  arrangement 
and  agreement  between  the  co-owners  no 
body  realized  rent  from  anybody  and  the 
rents  due  to  one  used  to  be  set-off  against 
the  rents  due  from  him  to  the  other.11    The 
learned  Munsif  does  not  refer  to  any  of 
these    documents    as    to     what    the   real 
arrangement   or    agreement  between    the 
parties  was;  and  on  this  arrangement   as 
set  out  in  para.  8  the  learned  Munsif  later 
on  says  this.    "  Because  by  the  agreement 
between  the  parties  realization  of  rents  by 
one  from  another  came  to  an  end  and  one 
ceased  to  be  a  tenant  under  the  other  and  a 
rent  suit  by  one   against  another  cannot 
lie."    In  this  view  the  learned  Munsif  dis- 
missed the  plaintiff's  suit  as  not  maintain- 
able.     On   appeal  by    the   plaintiffs    the 
learned  District  Judge  also  tried  the  suit 
on  the  question  of  its  maintainability  and 
holding  that  the   suit,  apparently  on  the 
arrangement    admitted    by    the  plaintiffs, 
was   not  maintainable  dismissed  the  suit. 
Now,  the  present  appeal  is  by  the  plaint- 
iffs against  that  judgment  and   decree   of 
the  learned  District  Judge.    It  is  contended 
by  the  learned  Counsel  who  appears  for 
the  plaintiffs  that  the  suit  was  tried  on  the 
issue  as  to  whether  it  was  or  was  not  main- 
tainable upon  the  statement  contained  in 
the  plaint  and  that  the  agreement  as  stat- 
ed in  para.  8  of  the  plaint  does  not  prevent 
the    present     suit    being    maintainable; 
secondly  that  the  finding  of  the   learned 
Munsif  ai  to  the  effect  of  the  arrangement 


JANG  BAIU&tTB  V,  JAOAT  HAftAXK. 


-hat  one  ceases  to  be  a  tenant  under  the 
Dther  was  erroneous,  because  that  was  not 
the  effect  of  the  arrangement  set  out  in 
the  plaint.  It  was  next  argued  that  the 
learned  District  Judge  has  also  erred  in 
dismissing  the  suit  as  not  maintainable, 
as  he  also  tried  the  suit  on  the  plaint  filed 
by  the  plaintiff  and  that  the  learned  Dis- 
trict Judge  has  not  based  any  of  hii3  find- 
ings upon  any  evidence  in  the  case. 

Now,  it  is  quite  clear  to  us  that  the  suit 
was  tried  as  on  an  objection  in  the  nature 
of  a  demurrer  and,  therefore,  the  plaintiff's 
case  as  made  in  the  plaint  ought  to  be 
accepted  as  correct,    It  was  contended  by 
the    defendants-respondents   as    they    are 
entitled  to  do  that  on  the  arrangement  set 
out  in  the  plaint  the  plaintiff's  suit  was 
not  maintainable.    But  we  are,  of  opinion, 
that  the  arrangement  as  set  out  in  the  8th 
para,  of  the  plaint,  is  nothing  more  than 
an  arrangement  which  one  finds  very  usual 
in  this  country,  namelj*,  that  when  rents  aie 
due  to  zemindars  each  paying  rent  to  and 
receiving  from  the  other,  instead  of  each 
paying  the  amount  to  the  other,  the  pay- 
ment of  the  rent  is  usually  made  by  entries 
in  the  account  books  and  in  the  result  rent 
is  set-off  against  each  other  and  if  there  is 
any  balance  payable  to  either  of  them  only 
the  balance  is  paid.    So  far  as  I  can  under- 
stand the  arrangement  clearly  mentioned 
that  the  rent  when   its  fell  due  to   each 
other   instead  of  paying  in  cash  to   each 
other  there  would  be  set-off  between  the 
co-sharers.     This  arrangement  did  not  pre- 
vent the  rent  from  falling  due.    All   that 
it  provides  is  that  after  the  rent  has  fallen 
due  to  each  other  payment  of  the  rent  is 
made  by  set-off  against  each  other.    Pay- 
ment is  not  really  effected  until  the  set-off 
is  made.    Now,  if  the  plaintiffs  in  disregard 
of  this  arrangement  bring  a  suit  for  rent 
due  to  them  the  defendants  may  show  that 
under  the  arrangement  they  refrained  from 
realizing  the  rent  which  fall  due  to  them 
and  that  the  money  has  already  been  paid 
by  set-off  when  rent  falls  due,  the  party 
in  whose  favour  the  rent  is  due,  is  entitled 
to  enforce  his  right.    Such  an  arrangement 
cannot  prevent  the  rent  from  being  realiz- 
ed unless  it  is  shown  that  the  rent  has 
been  paid    either  by  set-off  or  otherwise. 
Of  course  it  is  open  to  a  defendant  in   a 
suit  like  this  to  show,  as  I  have  already 
said,  that  the  rent  has  already  been  paid 
by  set-off  between  the  parties.    But  if  there 
has  been  no  such  set-off  I  do  not  see  how 


[021.  0.1826] 

a  mere  arrangement  to  make  a  set- oft  stops 
the  rent  falling  due  and  in  fact  the  arrange- 
ment set  only  by  the  plaintiffs  contemplates 
the  rent  falling  due.  It  is  no  doubt  open 
to  the  two  co-sharers  to  make  an  arrange- 
ment by  appropriate  agreement  putting  an 
end  to  the  relationship  of  landlord  and 
tenant  between  themselves,  or,  iu  other 
words  giving  up  the  right  to  receive  rent 
in  favour  of  each  other.  But  that  is  not 
the  agreement  which  is  set  out  in  the 
plaint  The  defendants  as  I  have  already 
stated,  go  further  in  their  writteft  statement 
as  to  the  nature  of  the  agreement  but  no 
effect  can  be  given  to  that  plea  without 
entering  into  evidence.  In  the  circum- 
stances we  think  that  the  judgments  and 
decrees  of  the  Courts  below  ought  to  be 
set  aside  and  the  case  sent  back  to  the 
Court  of  first  instance  to  be  decided  after 
taking  evidence  to  be  adduced  by  the 
parties.  That  Court  will  decide  the  whole 
suit  once  for  all  upon  the  issues  which 
may  arise  between  the  parties.  All  that 
we  decide  is  that  para.  8  of  the  plaint  does 
not  put  an  end  to  the  relationship  of  land- 
lord and  tenant  between  the  parties.  The 
rent  does  fall  due  and  the  defendant  can- 
not escape  liability  without  proving  pay- 
ment in  some  way. 

Costs  will  abide  the  result. 

Cuming,  J*— I  agree. 

Appeal  allowed  i 
z.  K.  (Jaw  remanded. 


OUDH  CHIEF  COURT. 

FIRST  EXECUTION  OF  DECREE  APPEALS  Nos.  57 

AND  58  OP  1925. 

December  1, 1925. 

Present : — Mr.  Justice  Hasan  and 

Mr  Justice  Raza, 

Kunwar  JANG  BAHADUR— JUDGMENT- 
DEBTOR— APPELLANT 

versus 
JAGAT  NARAIN— DECREE-HOLDER  - 

RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1938),  s.  68, 
Sch.  HI,  para  11— Execution  of  decree— Property 
held  by  Collector— Attachment,  validity  of —Simple 
money  decree,  whether  can  be  transferred  for  execution 
to  Collector 

Where  the  Collector  holds  certain  property  belong- 
ing to  a  judgment-debtor  in  execution  of  a  decree 
under  para  11  of  Sch  III,  0.  P.  C  ,  a  Civil  Court  has 
no  jurisdiction  to  direct  the  attachment  and  sale  of 
such  property  in  execution  of  another  decree  against 
the  same  judgment-debtor,  [p.  908,  col.  1  ] 


JAKO  BAJUDITR  t).  JACUT  NARAIW. 


[92 1.  0. 1920] 

Whera  no  immoveable  property  has  been  directed 
to  be  sold  in  execution  of  a  simple  money -decieo,  the 
decree  cannot  be  transferred  for  execution  to  the 
Collector  under  s.  68,  0.  P.  C.  [p  907,  col  2  ] 

First  execution  of  decree  appeal  against 
an  order  of  the  Subordinate  Judge,  Hardoi, 
dated  the  15th  August  1925, in  Miscellaneous 
Suit  No.  129  of  1925. 

Mr.  M.  Wasim,for  the  Appellant. 

Messrs,  Ali  Zaheer  Niamatullah  and  H. 
Humin,  for  the  Respondent 

JUDGMENT.— The  facts  of  the  case 
are  as  follows :  One  Ram  Raghubir  obtain- 
ed a  simple  money-decree  against  one  Raja 
Durga  Prasad  from  the  Court  of  the  Sub- 
ordinate Judge  of  Lucknow  some  years 
ago.  He  also  obtained  a  pimiiar  decree 
against  the  same  judgment-debtor  from  the 
Court  of  the  Subordinate  Judge  of  Hardoi. 
The  decree  passed  by  the  Court  at  Luck- 
now  was  transferred  for  execution  to  the 
Court  of  the  Subordinate  Judge  of  Hardoi 
Proceedings  in  execution  of  the  two  decrees 
were  taken  from  time  to  time  by  the  decree- 
holder.  Eventually  on  the  13th  of  December 
1915  an  application  was  made  to  the  Court 
of  the  Subordinate  Judge  of  Hardoi  by  the 
decree-holder  in  relation  to  the  Hardoi 
decree  that  certain  villages  belonging  to 
the  judgment-debtor  be  attached  and  sold 
for  the  satisfaction  of  that  decree.  The 
Subordinate  Judge  passed  an  order  in  terms 
of  the  prayer  contained  in  the  application 
of  the  decree-holder.  On  the  25th  of  Jan- 
uary 1917  another  application  was  made  by 
the  decree-holder  to  the  same  Court  in 
relation  to  the  execution  of  the  Lucknow 
decree  with  a  prayer  similar  to  the  one 
which  was  made  in  the  previous  application. 
That  prayer  was  also  granted  by  the  Sub- 
ordinate Judge.  Afterwards  both  the 
decree-holder  and  the  judgment-debtor  died. 
Proceedings  for  substitution  of  their  re- 
presentatives took  place  in  respect  of  both 
the  deciees  in  the  Hardoi  Court  and  the 
substitutions  were  allowed  "by  the  Couit. 

Against  the  execution  proceedings  taken 
in  the  Hardoi  Court  two  appeals  were  prefer- 
j:ed  by  the  rep  *esentative  of  the  judgment- 
debtor  to  the  late  Court  of  the  Judicial 
Commissioner  of  Oudh.  The  Bench  who 
heard  those  appeals  decided  that  the  sub- 
stitutions were  properly  made.  It  further 
decided  that  the  order  passed  by  the  learned 
Subordinate  Judge  as  to  the  attachment 
and  sale  of  certain  immoveable  properties 
of  the  judgment-debtor  in  execution  of  the 
Hardoi  and  also  of  the  Lucknow  decrees 
illegal  in  view  of  the  fact  tfrat  on  the 


907 


date  of  the  order  passed  in  relation  to  the 
Hardoi  decree  the  immoveable  property 
of  the  judgment-debtor  was  held  by  the 
Collector  under  the  poweis  conferred  on 
him  by  Sch.  Ill  of  the  C.  P.  C.  in  exe- 
cution of  a  decree  of  Ram  Sahai  and 
Puttu  Lai  and  on  the  date  of  the  application 
relating  to  the  Lucknow  decree  that  im- 
moveable property  was  held  by  the  Collec- 
tor under  the  same  Schedule  in  execution 
of  a  decree  held  by  the  Upper  India  Bank, 
Limited  In  this  connection  we  \\ould 
refer  totheordeis  made  by  the  Bench  of 
the  late  Judicial  Commissioner's  Court 
dated  the  27th  of  February  1925  in  Mis- 
cellaneous Applications  Nos.  43  and  44  of 
1925.  Accordingly  thfc  order  passed  by  the 
learned  Subordinate  Judge  in  each  of  the 
execution  applications  was  set  aside.  The 
applications  of  the  decree-holder  were,  how- 
ever, maintained  and  the  decree-holder  was 
directed  to  proceed  according  to  law. 

On  the  i5th  of  April  1925  the  decree- 
holder  again  went  to  the  Court  of  the  Sub- 
ordinate Judge  of  Hardoi  with  applications 
asking  for  the  transfer  of  the  record  of  the 
execution  cases  to  the  Collector  for  further 
action.  These  applications  were  opposed  by 
the  judgment-debtor  on  various  grounds. 
These  grounds  were  made  the  subject- 
matter  of  three  issues  in  the  Court  be- 
low. All  those  issues  have  been  found 
by  that  Court  against  the  judgment- debt- 
or and  we  infer  that  the  result  has 
been  that  the  prayer  of  the  applications 
made  by  the  decree-holder  has  been  granted. 
The  judgment-debtor  has  preferred  these 
appeals  against  the  order  of  the  Subordinate 
Judge  dated  the  15th  of  August  1925. 

At  the  hearing  of  the  appeals  only  one 
point  was  urged  before  us  by  the  learned 
Counsel  for  the  appellant  in  support  of  the 
appeals  and  that  was  that  the  Subordinate 
Judge  had  no  juiisdiction  to  transfer 
the  execution  cases  to  the^  Collector. 
The  argument  advanced  by  him  is  that 
only  euch  decrees  could  be  transferred  to 
the  Collector  for  execution  as  are  mentioned 
in  s.  68  of  the  C.  P.  C.  and  that  the  decrees 
now  under  consideration  aie  not  fcuch 
decrees. 

We  are  of  opinion  that  the  argument  is 
sound  and  must  prevail.  It  has  aheady 
been  stated  by  us  in  this  judgment  that 
the  two  decrees  which  the  respondent  holds 
against  the  appellant  are  simple  money 
decrees  in  neither  of  \vhich  the  Court 
Jias  ordered  any  immoveable  property  to  be 


908 


SITES  WAR  ROY  V.  TfittfA  BARMAN. 


.Bold  and  at  the  time  when  the  order  for 
attachment  and  sale  was  passed  by  the 
Court  of  the  Subordinate  Judge  of  Hardoi, 
it  could  not  be  made  then  for  the  reason 
that  under  para.  11  of  the  Third  Schedule 
of  the  0.  P.  0.  the  Civil  Court  had  no 
jurisdiction  to  issue  any  process  against  the 
judgment-debtor's  property  as  that  property 
was  held  by  the  Collector  in  execution  of 
other  decrees.  The  order  of  the  learned 
Subordinate  Judge  under  appealmust,  there- 
fore, be  set  aside. 

The  learned  Counsel  for  the  decree-holder- 
respondent  strenuously  argued  that  the  sub- 
stance of  the  decree-holder's  applications 
was  not  the  transfer  of  the  decree  to  the 
Collector  for  execution  but  merely  for  a 
share  in  the  proceeds  of  the  sale  of  the 
judgment-debtor's  property  in  execution 
of  decree  in  the  hands  of  the  Collector  As 
regards  this  argument  we  may  say  that 
in  the  first  place  there  is  no  such  prayer 
contained  in  the  application  and  in  the 
second  place  we  do  not  think  we  would  be 
justified  in  treating  the  decree-holder's 
application  as  one  for  rateable  distribution 
in  terms  of  s.  73  of  the  C.  P.  C.  That  is  a 
function  which  in  the  first  instance  must 
be  performed  by  the  Court  seized  of  the 
execution  and  it  will  be  open  to  the  decree- 
holder,  if  he  is  so  advised,  to  seek  the  aid 
of  the  Court  in  that  direction. 

We  may  mention  that  the  Collector 
atill  holds  the  judgment-debtor's  property 
under  his  control  in  virtue  of  the  powers 
conferred  on  him  by  s.  68  of  the  C.  P.  C, 
in  relation  to  a  mortgage- decree  held  by 
the  Upper  India  Bank,  Limited.  So  even 
on  this  date  a  new  process  cannot  be  issued 
against  the  judgment-debtor's  property. 

Tbe  result  is  that  we  allow  these  appeals, 
set  aside  the  order  of  the  learned  Subordi- 
nate Judge  in  each  case  and  direct  that 
the  decree-holder's  applications  of  the  15th 
of  April  1925  be  disposed  of  according  to 
law.  The  respondent  must  pay  the  appel- 
lant's costs  of  these  appeals  but  no  order  as 
to  the  costs  in  the  lower  Court. 

2.  K,  Appeals  allowed. 


[921,0,1928] 
CALCUTTA  HIGH  COURT. 

APi'EAL  FHOM   APPELtiTfl  DEGREE  No,  2588 

OF  1922, 

July  9,  1925. 

Present  :  —  Mr.  Justice  Cuming  and 

Mr.  Justice  Chakravarti. 
8ITE8WAR  KOY  AND  ANOTHER— 
S—  APPELLANTS 


versus 

TEPUA  BARMAN  AND  OTHERS—  PLAINTIFFS 
—  RESPONDENTS. 

Co-sharers—  Partition,  suit  for—Possession,  allega- 
tion of,  disproof  of  —  Presumption. 

Where  a  plaintiff  in  a  suit  for  possession  by  partition 
of  alleged  joint  property  makes  a  positive  case  that  he 
is  in  possession  of  the  property,  and  that  case  fails  and 
the  Court  finds  that  the  plaintift  has  had  nothing  to 
do  with  the  property  in  dispute  for  over  twelve  years, 
there  is  no  room  for  the  application  of  the  presump- 
tion that  the  defendant  is  m  possession  of  the  pro- 
perty on  behalf  of  the  plaintiff  and  the  plaintiff's  suit 
must  fail,  [p  909,  col  2  J 

Appeal  against  a  decree  of  the  Officiat- 
ing Subordinate  Judge,  Jalpaiguri,  dated 
the  9th  of  August  1922,  reversing  that  of 
the  Munsif,  First  Court,  Jalpaiguri,  dated 
the  3rd  of  January  1921. 

Babu  Krishna  Kamal  Moitra,  for  the 
Appellants. 

Babu  Santosh  Kamar  Bose}  for  the  Re* 
spondents., 

JUDGMENT. 

Chakravarti,  J.—  This  is  an  appeal 
by  the  defendants  and  arises  out  of  a  suit 
brought  by  the  plaintiffs  for  declaration  of 
their  right  to  a  share  in  the  properties  in 
suit  and  for  possession  after  partition  by 
metes  and  bounds.  The  properties  in  suit 
are  certain  jamas  and  the  plaintiffs  claimed 
a  |th  share  in  those  properties.  The  de- 
fence of  the  defendants  was  that  they  were 
the  owners  of  the  jotes  and  were  in  exclu- 
sive possession  thereof  for  a  very  long  time 
without  any  connection  whatsoever  with 
the  plaintiffs. 

The  facts  shortly  stated  are  these  :  It 
appears  that  one  Janaki  died  leaving  three 
sons  Dhir  Nath,  Asinath  and  Kalinath. 
Dhirnath  had  four  sons,  namely,  Kanhu, 
Tepu,  Fulchan  and  Fedhu.  The  plaintiffs 
are  the  sons  of  Kachu  and  the  other  two 
sons  of  Dhirnath,  namely,  Tepu  and  Ful- 
chan. The  defendants  are  the  sons  of  Fedhu 
who  according  to  them  was  adopted  by 
Asinath. 

The  plaintiffs'  case  as  presented  in  the 
first  Court  was  that  they  weie  in  possession 
of  their  share  in  the  jotes  which  were  their 
ancestral  properties  by  receipt  of  paddy 
from  their  adhiar*  and  were,  therefore,  in, 


(92  I.  0.  1923]  AJUNDRAO 

joint  poaaeasioa  of  theil^  sKara  with  the 
defendants.  The  plaintiffs  alleged  that 
they  had  baen  dispoassssad  after  a  criminal 
Ca33  from  all  lands  except  those  mentioned 
in  schedule  ukha"  to  the  plaint. 

The  learned  Munsif  found  that  the  plaint- 
iffs' story  that  they  were  in  joint  possession 
with  the  defendants  was  not  established. 
He  found  that  Tepu,  to  use  his  own  words, 
lived  in  a  place  called  Tepuigari,  four  or  five 
miles  away  from  the  suit  land  and  he  mig- 
rated there  several  decades  ago.  His  sons 
and  daughters  were  all  born  there,  Plaint- 
iffs' witness  Mantra  Gobi  ad  a,  a  man  of 
Bhandardaha,  where  the  suit  land  ia  situat- 
ed says  that  he  has  not  seen  Tepu  for  many 
years— 20  or  30  years.  Srikanta  and  Dhepra 
also  live  at  Kanfata,  a  place  within  the 
jurisdiction  of  the  Ooosh  Behar  State. 
Fulchan  also  lives  at  a  distant  place.  In 
effect  the  learned  Munsif  found  that  some 
of  the  plaintiffs  and  the  ancestor  of  the 
others  had  left  the  village  more  than  30 
years  before  the  suit  and  set  up  their  own 
respective  cultivation  at  those  distant  places, 
and  that  the  story  of  the  plaintiffs  that 
they  were  in  receipt  of  the  bhag  paddy 
was  unworthy  of  credit.  He  further  point- 
ed out  that  neither  Tepu,  nor  Fulchan, 
nor  the  sons  of  Kachu  who  are  the  plaint- 
iffs in  this  case  had  come  to  depose  in  this 
suit.  He  further  pointed  out  that  the  story 
of  their  joint  possession  with  the  defend- 
ants was  not  supported  by  the  oath  of  any 
of  the  plaintiffs  in  the  case.  On  these  find- 
ings the  4earned  Munsif  dismissed  the 
plaintiffs*  suit. 

On  appeal  by  »the  plaintiffs  the  learned 
Officiating  Subordinate  Judge  has  reversed 
the  decree  of  the  Court  of  first  instance 
and  declared  the  plaintiffs'  title  and  re- 
manded the  case  for  effecting  partition  of 
the  plaintiffs'  share.  The  learned  Subordi- 
nate Judge  has  not  dealt  with  any  of  the 
categorical  findings  arrived  at  by  the  learn- 
ed Munsif  which  I  have  stated  above.  Prom 
the  mere  fact  that  the  properties  were  an- 
cestral properties  of  the  defendants  and 
the  plaintiffs  at  a  remote  date  he  comes 
to  the  conclusion  that  the  defendants  not 
having  asserted  a  hostile  title  to  the  know- 
ledge of  the  plaintiffs  the  lands  in  suit  must 
be  inferred  to  have  been  in  the  custody, 
to  use  his  own  words,  "of  their  co-owners,1' 

The  learned  VAkil  who  appears  for  the 
defendants-appellants  contends  that  the 
theory  of  the  plaintiffs1  possession  through 
the  defendants  should  not  have  been  relied 


V.  DADLAT.  909 

upon  by  the  lower  Appellate  Court  whto 
the  plaintiffs'  case  was  that  they  were  in 
actual  possession  of  their  own  lands  by 
settling  the  lands  on  their  own  behalf  with 
the  adhiars.  The  learned  Subordinate 
Judge  has  not  taken  any  notice  of  the  find- 
ings of  the  learned  Munsif  that  the  plaintiffs 
had  cut  off  all  connections  with  these  pro- 
perties for,  to  use  the  words  of  the  Munsif, 
"several  decades."  It  is  quite  apparent 
that  the  learned  Subordinate  Judge  was 
not  prepared  to  dissent  from  the  findings 
of  fact  arrived  at  by  the  learned  Munsif. 
I  think  the  contention  of  the  learned  Vakil 
for  the  appellants  ought  to  be  given  effect 
to.  When  the  plaintiffs  were  found  to 
have  no  connection  with  these  properties 
for  over  30  years  and  their  positive  case 
that  they  were  in  actual  possession  of  the 
lands  for  themselves  failed.  I  do  not  think 
that  there  was  any  room  for  the  presump- 
tion which  the  learned  Subordinate  Judge 
has  raised  in  favour  of  the  plaintiffs,  name- 
ly, that  the  defendants  were  in  possession 
on  behalf  of  the  plaintiffs,  1  think,  there- 
fore, when  the  plaintiffs  suing  in  eject- 
ment made  a  positive  case  that  they  were 
in  possession  Tof  the  property  within  12, 
years  and  failed  to  establishTthat  case  the 
suit  should  have  beau  dismissed. 

We  think,  therefore,  this  appeal  should  be 
allowed  and  the  judgment  of  the  first 
Court  restored  wilh  costs  both  of  this 
appeal  and  of  the  appeal  before  the  Sub- 
ordinate Judge. 

Cumlng,  J.— I  agree. 

a.  K,  Appeal  allowed. 


NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No,  321  OF  1924. 

December  17,  1925. 
Preaen*;— Mr.  Findlay,  Officiating  J.  0,,  and 

Mr  Kotval,  A.  J.  C. 
ANANDRAQ— DEFENDANT— APPELLANT 

versus 
DAULAT— PLAINTIFF— -RESPONDENT. 

C  P  Land  Revenue  Act  (II  of  1917),  s  220  (p)— 
Sadar  lambardar— .Rewunerahon,  claim  to,  when 
maintainable* 

A  sadar  lambardar  is  not  entitled  to  any  re- 
numeration  unless  and  until  ho  gets  it  lixed  by  the 
Revenue  Authorities  under  s  220  (p)  of  the  0  P  Land 
Revenue  Act,  [p.  912,  col  1  ] 

Appeal  against  a  decree  of  the  Addi- 
tional District  Judge,  Nagpur,  dated  the 


9io 

25th  March  1924,   in  Civil  Appeal  No.  10 
of  1924. 

ORDER. 

Findlay,  Offg,  J»  C*— (September  9, 
J925).— The  plaintiff- respondent  Daulat  sued 
the  defendant-appellant  Anandrao  for  the 
recovery  of  certain  items  of  Government 
revenue  and  the  like  which  he  alleged  were 
due  to  him  as  sadar  lambardar  of  Mauza 
Patansaongi  and  Beed.  Amongst  the  items 
sued  for  were  alleged  sums  said  to  be  due 
in  respect  of  his  remuneration  as  sadar  lam- 
bardar. The  plaintiff  was  admittedly  sadar 
lambardar  in  the  years  132  J  and  1330  Fasli 
of  Mauza  Patansaongi  as  well  as  of  Mauza 
Beed  in  the  year  1329.  The  Subordinate 
Judge  held  that  he  was  entitled  as  sadar 
lambardar  to  the  remuneration  provided 
for  in  s.  192  of  the  Act  and  he  accordingly 
granted  the  items  in  question,  An  appeal 
to  the  Additional  District  Judge  likewise 
failed.  His  point  of  view  was  that  if  the 
other*  lambardars  of  the  pattis  concerned 
are  dissatisfied  with  the  arrangement  under 
which  the  sadar  lambardar  continues  to  re- 
ceive all  the  remuneration  it  was  their  duty 
to  apply  to  the  Deputy  Commissioner  for 
re-fixation  thereof.  Until  the  rate  of  re* 
muneration  had  been  newly  fixed  the  old 
rate  must  remain  in  force  and  could  not 
be  disputed  in  the  Civil  Court,  The  appel- 
lant has  come  up  in  second  appeal  against 
the  decision  of  the  Additional  District 
Judge. 

It  is  admitted  that  the  Deputy  Commis- 
sioner has  not  re-fixed  the  remuneration 
since  the  new  Act  came  into  force  and  since 
a  sadar  lambardar  was  appointed.  The 
contention  urged  on  behalf  of  the  appellant 
is  that  the  plaintiff  clearly  cannot  be  en- 
titled to  the  full  amount  of  the  remunera- 
tion contemplated  in  s.  192  of  the  Land 
Revenue  Act  of  1917.  It  is  urged  that  the 
other  lambardars  of  the  pattis  concerned 
have  also  duties  and  responsibilities  in 
respect  of  which  they  are  entitled  to  re- 
muneration and  that  it  was  never  intended 
by  the  Legislature  that  the  sadar  lambardar 
as  such  would  prima  facie  continue  to 
draw  all  the  remuneration  in  question. 
Counsel  in  arguing  the  case  before  me 
evidently  failed  to  notice  the  judgment 
iu  Second  Appeal  No.  165  of  1922  which  has 
now  been  published  in  Janrao  v.  Baliram 
(1).  The  penultimate  paragraph  of  that 
judgment  reads  as  follows : — 

(1)  83  lud.  Oaa,  172;  20  N,  L,  R,  U2;  A,  I.  R,  1885 


Atf  ANDRAO  V.  bAuUf .  [02  I.  0.  1926] 

"There  is  nothing  also  in  s.  220  of  the 
new  Act,  under  which  exclusive  jurisdiction 
is  given  to  Revenue  Authorities,  and  the 
jurisdiction  of  the  Civil  Courts  is  barred 
in  certain  matters,  which  either  precludes 
the  Civil  Courts  from  entertaining,  or  oust 
their  jurisdiction  in  respect  of  a  claim  by 
a  lambardar  for  the  recovery  of  arrears  of 
remuneration  payable  to  him.  So  far  as  the 
sadar  lambardarship  is  concerned  no 
special  remuneration  is  payable  to  him  as 
such.  The  same  remuneration  is,  therefore, 
payable  whether  a  person  is  lambardar  or 
sadar  lambardar.  The  result  is  that  plaintiff 
is  entitled  to  recover  the  remuneration 
claimed  for  all  the  years  in  suit.** 

In  addition  the  learned  Additional  Judi- 
cial Commissioner  who  decided  the  case 
placed  reliance  on  the  terms  of  s.  229,  the 
saving  provision  of  the  Act.  With  all 
respect  it  seems  to  me  that  the  view  of  the 
learned  Additional  Judicial  Commissioner 
taken  in  the  judgment  referred  to  requires 
re-consideration.  I  know  of  no  reason  why 
the  sadar  lambardar  as  such  can  be  held  to 
be  the  equivalent  of  the  lambardars,  four 
in  number,  who  are  in  existence  in  the 
mahal  we  are  concerned  with  and  I  think 
the  position  that  the  sadar  lambardar  is 
prima  facie  entitled  to  all  the  remunera* 
tion  which  he  received  under  the  old 
system  requires  re-consideration,  In  relying 
on  a.  22J  of  the  Land  Revenue  Act  of  1917 
the  all  important  limitation  implied  in  the 
words  "so  far  as  may  be1'  seems  to  me  to 
have  been  lost  sight  of. 

While  I  am  not,  therefore,  prepared  at  the 
present  moment  to  differ  definitely  from 
the  decision  of  Kinkhede,  A.  J.  C.,  in  the 
case  quoted  above,  I  think  this  matter  is  of 
sufficient  importance  to  be  considered  by  a 
Bench,  The  question  involved  is  whether 
a  sadar  lambardar  appointed  under  the 
Land  Revenue  Act  of  1917  is  entitled  ipso 
facto  to  the  remuneration  which  he  received 
under  the  previous  Land  Revenue  Act 
unless  and  until  the  Deputy  Commissioner 
re- fixes  or  re-arranges  such  remuneration 
as  between  him  and  the  other  lambardars 
of  the  patti  concerned.  I  accordingly  order 
that  the  present  appeal  should  be  heard 
by  a  Bench  consisting  of  Second  A,  J.  C, 
and  myself. 

Mr.  W.  R.  Puranik,  for  the  Appellant 

Mr.  M.  B.  Niyogi,  for  the  Respondent. 
OPINION. 

Findlay,  Off?.  J.  0*»  andKotval, 
A.  J.  0.-  (Deodm&er  tfa  IMS),  —r 


[&2  L  0. 1928]  ANANDRAO  v.  DAULAT. 

have  now  heared  this  second  appeal  which     Judge  confirmed  the  decision  of 
was  referred  to  us  by  the  order  of  Findlay, 
O.  J.  C.,  dated  the  9th  September  1925. 
The  plaintiff-respondent  Daulat  sued  the 
defendant-appellant,      Anandrao,     for    an 
amount  of  Rs.  466-2  6  said  to  be  due  under 
the    following  circumstances.    Plaintiff  is 
the  sadar  lainbardar  of  Mauza  Patansaongi 
which  is  divided  into  four  pattis.    Defend- 
ant is  lambardar  of  Patti  No.  3  while  plaint- 
iff is  lambardar  of  Patti  No.  1  and   sadar 
lambardar  of  the  whole    village.      Plaintiff 
claimed  that  Rs.  807-3*0  was  due  in  respect 
of  Government  revenne  for  the  Fasli  year 
1330,  and  he  also  claimed    Rs.    38  4-0  on 
account  oi  sadar  lambardari    hak   for  the 
years  132931    with    interest.     The  .total 
amount  due  came  to  Rs.  1,168-15  3   and  de- 
ducting payments  the  amount  of  Rs.  466-2  6 
was  due.    As  regards  Mauza  Beed,   plaint- 
iff's allegation  is  that  he  owns  eight-annas 
therein    and  the  defendant  the  remaining 
eight  annas,  while  plaintiff  was  sadar  lam- 
bardar of  the  whole   village  for  the  years 

1329  and  1330  only.    Plaintiff  claims  that 
Rs.  82-4-0  on  account  of  the    Government 
revenue  is  due  and  Rs.  4-2-U  for  sadar  lam- 
bardari hak  for  each  of  the  years  1329   and 

1330  This  makes  a  total  of  Rs.  ilO  8-0  of 
which  Rs.  61-11-0    has   been  paid.    Thus 
Rs.  36-8-0  inclusive  of  interest  was  due  to 
plaintiff  in  respect  of  Mauza  Beed,    Deduct- 
ing certain  amounts    admittedly    due  by 
plaintiff  to  the  defendant  as  is  clear  from 
the  judgment  of  the  first  Court,  para.  3,  a 
total  of  Ra.  359-8<-0  was   claimed   in  the 
present  suit.  t 

The  dispute  between  the  parties  eventual- 
ly centred  round  the  question  as  to  whether 
the  plaintiff  was  entitled  or  not  to  the  re- 
muneration as  sadar  lambardar.  It  was 
urged  on  behalf  of  the  defendant  that  at 
the  very  best  the  plaintiff  could  only  claim 
the  so-called  sadar  lambardari  hak,  if  any, 
after  it  had  been  foed  by  the  Revenue 
Authorities  under  the  Land  Revenue  Act  of 
1917,  s  192.  Other  pleas  were  raised  be- 
tween the  parties  with  which  we  are 
not  now  concerned.  On  the  question  of 
the  plaintiff's  right  to  recover  sadar  lambar- 
dq,ri  hak  the  Subordinate  Judge  held  that 
the  plaintiff  w^s  entitled  to  recover  the  hak 
claimed  by  him,  as  under  thp  new  l^ond 
Revenue  Act  primary  responsibility  for 
the  payment  of  land  revenue  rested  cm 
the  sadar  lambardar,  The  defendant 
Auandrao  appealed  to  the  Court  of  the 
District  Judge,  Nagpur,  and  the  District 


911 

the  Sub- 
ordinate Judge.  The  District  Judge  took 
the  view  that  under  8.  188  (1)  of  the  Land 
Revenue  Act,  1917,  some  of  the  duties  of 
the  lambardar  under  the  old  Act  are  now 
to  be  perfoimed  by  persons  who  are  patti- 
dars  under  the  old  Act  and  now  are  lambar- 
dars. Hence  he  did  not  assent  to  the  pro- 
position that  the  sadar  lambardar  under 
the  new  Act  would  be  performing  precise- 
ly the  same  duties  and  bearing  the  same 
responsibilities  as  a  lambardar  under  the 
old  Act.  He,  however,  was  of  opinion  that 
if  the  pattidar  lambardars  were  dissatisfied 
with  the  arrangement  whereby  the  sadar 
lambardars  continued  to  get  all  the  re- 
muneration, their  remedy  ^as  to  apply  to 
the  Deputy  Commissioner  for  re  fixation  of 
the  same. 

The  point  at  issue  between  the  parties  to 
this  appeal  is,  therefore,  comparatively 
simple.  The  defendant-appellant's  position 
is  that  the  sadar  lambardar  cannot  claim 
the  remuneration  he  does,  in  the  present 
suit,  until  he  has  applied  to  the  Revenue 
Authorities  for  a  re-fixation  or  re-allocation 
of  the  remuneration.  The  plaintiff-re- 
spondent's position,  on  the  other  hand,  is 
that  the  sadar  lambardar  is  entitled  to 
claim  the  remuneration  he  does,  unless  and 
until  the  other  lambardars  apply  to  the 
authorities  and  have  the  remuneration  re- 
fixed  or  re-allocated  It  is  suggested  that 
the  sadar  lambardar  now  represents  the 
whole  proprietary  body  in  relation  with 
Government ;  that  the  change  in  designa- 
tion is  only  a  matter  of  nomenclature  and 
that  where  there  is  a  sadar  lambardar  the 
other  lambardar  merely  represents  his 
patti,  c/.,  Ramlal  v  Budhram  Prasad  (2) 
and  the  same  publication  1925,  page  29 
[Bhawqni  Sao  v.  Kesheo  Rao  (3).]  For  our 
own  part  we  regard  it  as  highly  significant 
that  in  s,  192  of  the  Land  Revenue  Act, 
1917,  no  specific  mention  fof  the  remunera- 
tion of  the  sadqr  lambardar  as  such  is  con- 
templated. In  r.  (J  of  the  Rules  made 
under  s.  137  of  the  Central  Provinces  Land 
Revenue  Act,  1881,  a  definite  standard  as 
to  the  lambardar's  remuneration  was  laid 
down.  Section  192  of  the  new  Land  Revenue 
Act,  on  the  other  hand,  contemplates  the 
fixing  Q£  the  remuneration  by  the 
Authorities, 


(2)  C,  P.  Rev.  Rulings  1021,  p. 
$)  0.  P,  Rev,  Ruliage  1D:>5,  p, 


20, 


We  cannot  see  that  any  primary  responsi- 
bility with  reference  to  the  payment  of 
land  revenue  rests  on  the  sadar  lambar* 
dar  under  the  new  arrangement  introduced 
by  the  Land  Revenue  Act  of  1917.  The 
sadar  lambardar  is  defined  in  s.  2  (15)  as 
"thp  particular  lambardar  appointed  under 
this  Act  to  represent  the  lambardars  in 
their  relations  with  Government.1'  This 
only  implies  in  this  connection  that  he  has 
to  collect  the  land  revenue  from  his  fellow 
lambardars  and  pay  it  to  Government  along 
with  the  land  revenue  of  his  own  patti. 
He  is  no  more  and  no  less  liable  than  the 
other  lambardars  for  any  deficiency  on  the 
part  of  any  of  the  lambardars. 

The  contention  offered  in  this  case  on 
behalf  of  the  isadar  lambardar  is  that 
prima  facie  he  as  representing  all  the  lam- 
bardars in  their  relations  with  the  Govern- 
ment is  entitled  to  the  whole  of  the  re- 
muneration payable  under  the  old  Act  to 
the  lambardars.  The  present  Land  Revenue 
Act  does  not  fix  any  remuneration  for 
sadar  lambardar  as  such.  If  he  is  entitled 
to  any  remuneration  he  is  entitled  to  it 
only  as  one  of  the  lambardars.  There  is 
nothing  in  the  Land  Revenue  Act  which 
suggests  that,  where  there  are  more  lambar- 
dars than  one  in  a  mahal>  only  the  one  who 
is  the  sadar  lambardar  is  entitled  to  the 
whole  of  the  lambardari  remuneration 
payable  under  the  old  Act  and  that  the 
other  lambardars  who  also  have  duties  and 
responsibilities  laid  on  them  are  to  get  no 
part  of  it.  If  it  is  once  conceded  that  the 
other  lambardars  may  have  a  claim  to  some 
part  of  the  remuneration  and  the  sadar 
lambardar  is  not  prima  facie  entitled  to  the 
whole  of  it,  it  follows  that  the  one  who  comes 
into  Court  with  a  claim  for  it  must  prove 
the  extent  of  the  share  to  which  he  is 
entitled.  This  share  can  only  be  fixed  by 
the  Revenue  Authority  under  s.  220  (p). 
The  plaintiff,  therefore,  cannot  maintain  his 
claim  for  remuneration  until  he  gets  it 
fixed  by  the  Revenue  Authorities. 

JUDGMENT. 

Plndlay,  Offg.  J.  C«—  (December  11, 
1925).— The  result  of  the  reference  to  the 
Bench  is  that  the  plaintiff-respondent  is 
not  entitled  to  claim  in  this  suit  any 
remuneration  as  sadar  lambradar.  It 
follows  that  when  the  sadar  lambardari 
hak  is  excluded,  the  claim  of  the  plaint- 
iff-respondent Daulat  in  the  admission  of 


ANAKDRAO  V.  DAULAt.  [93  I.  0.  19^6] 

the    defendant-appellant  Anandrao   stands 
as  follows  : — 


Patansaongi  village. 


Rs.    a,  p. 


807    3    0 


Government  revenue  of  de- 
fendant's share  for  1330  F. 

paid  by  plaintiff 
Amount  paid  by  defendant  as 

admitted  by  plaintiff.    (This 

includes  Rs.  6  6-0  being  kot- 

wari  dues  of  Kavadas  village 

which  plaintiff   has  allowed 

the  defendant    lo  charge  in 

these  accounts)  ...      709    2    9 

Balance        ..,        98    0    3 
Becd  village. 

Government  revenue  of  de- 
fendant's share  for  1330 
F.  paid  by  plaintiff  ...  82  4  0 

Amount  paid  by  defendant    ...       Gill    0 

Balance       r».        20    9/>  J 

The   plaintiff   is     entitled    to     reco<? 
Rs.    98-03    plus    Rs.    2C-C-0,    a    tote/7 
Rs,  118-9-3,    I  see  no  reason  to  allow  1 
rest  in  this  case  for  the  plaintiff-respon 
was  to  have  gone  to  the  Revenue  Authorn 
for  re-fixation  of  the  remuneration  as  betw 
the  lambardars  instead  of  initiating 
suit  on  the  vain  pretext  that  he  was  enti 
to  the  total   remuneration.    For  the  sr 
reasons  I  order  him  to  bear  the  defendant 
pellant's  costs  in  all  three  Courts.    A  de 
will  be  drawn  up  accordingly  and  subst 
tuted  for  that   passed   by  the  first  Coui 
and  confirmed  by  the  lower  Appellate  Court 
The  cross-objection  necessarily  fails  and  : 
also  dismissed.    The  respondent  to  bear  hi) 
own  costs  therein. 

z.  K.  Cross-objection  dismissed. 


f9§  I.  0.  1326]  KktJRSBlD  BfoAlf  V, 

NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

SECOND  CIVIL  APPEAL  No  315  OF  1924. 

Decembers,  1925. 

Present: — Mr.  Findlay,  Officiating  J.  C. 

Musammat  KHUR8HIDBEGAM— 

DEFENDANT  No  1 — APP&LMNT 

versus 
ABDUL  RASHID— PLAINTIFF - 

RESPONDENT. 

Muhammadan  Law —Restitution  of  conjugal  ?  ujhts, 
suit  for— Relief,  whether  discretionary  Restitution, 
prejudicial  to  health  and  happiness  of  wife  -Relief, 
whether  can  be  refused 

In  the  case  of  Miihammadans  a  suit  for  lestitution 
of  conjugal  rights  is  in  the  natuie  of  a  suit  for  specific 
performance  being  founded  on  a  contract  ofmarnag^ 
which  the  Muhammadan  Law  legards  as  a  civil  one 
The  relief  claimed  by  the  plaintiff  in  such  «i  suit  is  a 
discretionary  one  and  it  is  open  to  the  Conit  to  refuse 
to  grant  it  even  though  the  validity  ot  the  mamaae 
was  established  on  tlie  ground  that  its  enfoi cement 
would  be  prejudicial  or  dangerous  to  the  health, 
happiness  or  life  of  the  wife  [p  911,  col  2  ] 

Moonshee  Buzloor  Ruheem  v  Shumsooms&a   Beyum, 
11  M  I   A    551,  8  \V   R   P    O    3,  2  Huth    P  C  J  59, 
2  Sar  P  C  J  2)9,  20  IS  R  208  and  II amid  Husam  \ 
K libra  Begam,  44  Ind   Oas.  728,  41  A   332,  16  A   L    J 
132,  followed. 

Appeal  against  a  decree  of  the  District 
Judge,  Nagpur,  dated  the  22nd  April  1924, 
in  Civil  Appeal  No  4  of  1924, 

Mr.  M.  Gupta,  for  the  Appellant 

Mr.  M.  J3.  Niyogi,  for  the  Respondent. 

JUDGMENT.— The  plaintiff-respond- 
ent, Abdul  Rashid,  sued  the  defendant- 
appellant,  Musammat  Khurshid  Begam,  for 
restitution  of  conjugal  rights.  Two  other 
defendants  were  joined,  in  the  suit,  the 
second  defendant  Qulam  Ahmad,  being  the 
husband  of  the  elder  sister  of  defendant 
No.  1's  mother,  and  defendant  No.  3,  Abdul 
Sattar,  being  defendant  No  l*s  maternal 
uncle.  The  claim  as  laid  was  for  a  decree 
for  restitution  of  conjugal  rights  against 
defendant  No.  1,  while  an  injunction  was 
craved  for  against  the  other  two  defendants 
prohibiting  them  from  restraining  the 
appellant's  wife  from  coming  to  his  house 
and  residing  with  him.  The  two  last  de- 
fendants, however,  raised  a  preliminary 
objection  that  the  suit  was  bad  against 
them  because  of  want  of  territorial  juris- 
diction, and  this  issue  was  decided  against 
the  plaintiff  in  a  preliminary  finding  given 
on  29th  September  1923  by  the  Subordinate 
Judge,  as  a  consequence  of  which  the 
suit  proceeded  against  defendant  No.  1 
alone. 

The  main  facts  of  the  case  are  sufficiently 
clear  from  the  first  Court's  judgment, 

68 


ABDUL  fcASHir>. 


913 


The  Subordinate  Judge  gave  the  decree 
craved  for  against  the  first  defendant  and 
her  appeal  to  the  Court  of  the  District 
Judge,  Nagpur,  also  proved  unsuccessful. 

There  are  really  two  points  only  involved 
in  the  present  appeal  by  the  first  defendant. 
The  first  is  as  to  whether  the  decision  in 
the  previous  suit  of  the  Munsif,  Wardha, 
(No.  55  of  1915),  c/.,  the  copy  of  the 
judgment  (P.I),  was  res  jucticata  ornot. 
In  that  suit  the  present  appellant  sought 
to  question  the  validity  of  the  marriage 
with  her  husband.  The  suit  was  dismissed 
by  the  Munsif.  An  appeal  to  the  Court  of 
the  Additional  District  Judge,  Wardha, 
also  proved  unsuccessful,  and  a  second 
appeal  to  this  Court  was  unconditionally 
withdrawn  without  permission  to  bring  a 
fresh  suit. 

The  District  Judge  in  dealing  with  the 
present  case,  after  a  full  consideration  of 
the  decisions  reported  as  Bhugwanbutti 
Chowdhrani  v.  Forbes  (1)  and  Bishnu  Priija 
Ghowdtiurani  v.  Bhaba  Sundari  Debya  (2) 
came  to  the  conclusion  that  the  decision  in 
the  previous  suit  operated  as  res  judicata 
on  the  matter  of  the  validity  of  the  mar- 
riage we  are  concerned  with. 

It  does  not  appear  to  me  that  either  of 
these  decisions  is  of  very  much  help  in  the 
circumstances  of  the  present  case.  In  them 
the  mam  question  involved  was  whether  a 
plaintiff  can  evade  the  provisions  of  s.  13 
of  the  old  C  P  C ,  by  joining  several 
causes  of  action  against  the  same  defendant 
in  the  subsequent  suit  and  instituting  it 
in  a  Court  of  superior  jurisdiction.  A 
similar  remark  applies  to  the  decision  in 
Sukhdco  v.  Bhulai  (3).  As  pointed  out  by 
the  learned  District  Judge  the  point  was 
fully  considered  in  Ranganatham  Chetty  v. 
Lakshmu  Ammal  (4)  by  White,  C.  J.  As 
the  learned  Chief  Justice  therein  pointed 
out,  two  principles  seem  to  emerge 
from  the  earlier  decisions  quoted  by  him. 
One  is  that  the  plaintiff  cannot  add  causes 
of  action  to  the  original  one  for  the  pur- 
pose of  swelling  the  amount  of  the  valua- 
tion and  then  say  the  Original  Court  was 
incompetent  to  try  this  question.  ,  The 
other  principle  is  that  for  the  purpose  of 
dealing  with  the  question  of  res  judicata  it 
is  open  to  the  Court  to  split  up,  so  to 

(1)  28  0.  78,  5  0  W.  M.  483, 
12)  28  C,  318. 

(3)  42  Ind  Oas  657,  16  N.  L,  K,  91, 
(1)  21  Ind,  Oaa  15;  25  M,  L«  J,  379 j    14  M,  L.  T,  183; 
(1913)  M.  W*  N,  600,  ' 


914 


fiBGAM  V.  ABDtJL  RASHlD. 


[92 1  0. 1826] 


speak,  the  causes  o£  action  in  the  subse- 
quent suit  and  if  it  be  found  that  one  of 
these  causes  of  action  is  the  same  as  the 
cause  of  action  relied  upon  in  the  earlier 
suit,  then  although,  taking  all  the  causes 
of  action  together,  the  second  suit  may  be 
said  to  be  outside  the  jurisdiction  of  the 
Original  Court,  still  if  the  specific  question 
be  within  the  jurisdiction  of  the  Original 
Court  and  was  determined  by  the  Original 
Court,  it  is  no  answer  to  say  that  the 
whole  suit  is  beyond  its  jurisdiction. 

It  has  been  urged  on  behalf  of  the  de- 
fendant-appellant that  the  decisions  relied 
on  by  the  learned  District  Judge  in  coming 
to  the  conclusion  he  did  on  the  question  of 
resjudicata  were  inapplicable.  It  is  sug- 
gested that  the  previous  Court  had  110 
jurisdiction  to  try  this  suit  as  framed  and 
that,  therefore,  it  was  open  to  the  defend- 
ant appellant  again  to  urge  the  factum  of 
the  invalidity  of  her  marriage.  The  deci- 
sion in  Gokul  Mandar  v.  Pudmanund  Singh 
(5)  has  been  quoted  in  support  of  this 
position.  But  the  facts  of  this  case  were 
peculiar  and  give  very  little  help  in  the 
present  instance,  for  their  Lordships  of  the 
Privy  Council  did  little  more  than  enui- 
ciate  the  general  principles  of  res  judicata 
as  laid  down  in  s.  13  of  the  old  C.  P  C. 

I  have  also  been  referred  to  the  decision 
in  Shibo  Raut  v.  Baban  Rant  ((5),  but  again 
there  the  facts  of  the  case  were  highly 
peculiar  and  in  a  matter  such  as  we  aie 
dealing  with,  the  result  of  the  application 
of  the  principle  to  the  individual  case 
must  necessarily  vary  with  the  facts  thereof. 

For  my  own  part  with  all  deference  I  would 
have  entertained  some  doubt  as  to  the 
second  principle  enunciated  by  White,  0. 
J.,in  il&Sukhdeo  v.  Bhulai(S)  quoted  above. 
The  language  in  which  this  second  princi- 
ple is  enunciated,  seems  to  me  to  be 
perhaps  dangerously  wide  and,  if  taken  too 
literally,  would  entail  a  risk  of  a  conflict 
with  the  statutory  provision  contained  in 
s.  11  of  the  C.  P,  C.  It  seems  to  me,  how- 
ever, entirely  unnecessary  in  the  circum- 
stances of  the  present  case  to  go  further 
into  this  question  for  the  simple  reason 
that  the  present  suit,  after  the  second  and 
third  defendants  had  been  discharged, 
became  purely  oae  for  a  decree  fo^^restitu- 
tion  of  conjugal  rights,  and  the  jllief  of 
injunction  against  the  other  two "*  defend- 

(5)  29  C.  707;  29 1,  A,  106;  6  C,  W,  N,  $&;  4  Bom,  L, 
R  Y93:  8  Ser,  P.  C.  J.  323  (P.  C.). 

(6)  35  0,  353i  7  0.  L,  <J,  470;  12  0,  W.  S,  S59f 


ants  was  separately  valued.  The  plaintiff 
accepted  the  position  that  the  suit  should 
be  dismissed- so  far  as  the  relief  of  injunc- 
tion was  concerned,  and  in  those  circum- 
stances it  seems  to  me  perfectly  clear  that 
the  Court  in  the  previous  suit  would  have 
been  ablo  to  try  this  suit,  in  which  the 
claim  for  restitution  of  conjugal  rights  is 
valued  at  Rs.  400  only. 

I  may  add  in  this  connection  that  the 
present  suit,  even  as  originally  framed, 
could  very  well  have  been  split  up  into 
two  separate  suits ;  one  against  the  present 
appellant  for  restitution  of  conjugnl  rights, 
and  the  other  egainst  her  co-defendants  for 
the  relief  of  injunction. 

Although  the  appeal  so  far  fails  on  the 
question  of  res  yitdicata,  it  seems  to  me 
that  both  the  lower  Courts  have  wholly 
failed  to  give  due  consideration  to  another 
aspect  of  this  case.  It  has  been  strongly 
urged  before  me  that  the  relief  claimed  by 
the  plaintiff-respondent  was  a  discretionary 
one  which  it  was  open  to  the  Court  to 
refuse  even  though  the  validity  of  the 
marriage  was  established.  The  soundness 
of  this  proposition  cannot  be  questioned. 
In  the  case  of  Muhammadans  a  suit  for  re- 
stitution of  conjugal  rights  is  in  the  nature 
of  a  suit  for  specific  performance,  being 
founded  on  a  contract  of  marriage,  which 
the  Muhammadan  Law  regards  as  a  civil 
one.  Even,  therefore,  if  the  validity  of 
the  marriage  be  established,  the  relief  of 
restitution  of  conjugal  rights  may  be  re- 
fused on  such  grounds  as  that  its  enforce- 
ment would  be  prejudicial  or  dangerous  to 
the  health,  happiness  or  life  of  the  wife: 
cf  t  Moonshee  Buzloor  Ruheem  v,  Shumsoo- 
nissa  Begum  (7).  ^  In  Hamid  Husain  v. 
K libra  Begam  (&)  Piggot  and  Walsh,  JJ., 
confirmed  the  dismissal  of  such  a  suit  by 
the  lower  Court  and  in  arriving  at  this 
decision  one  of  the  considerations  taken 
into  account  was  that  the  real  reason  for 
the  bringing  of  the  suit  by  the  plaintiff  was 
his  desire  to  obtain  possession  of  the  de- 
fen  dant's  property. 

It  has  been  suggested,  however,  on  behalf 
of  the  respondent  that  no  specific  plea  was 
taken  on  this  issue  by  defendant  No.  1. 
This  is,  however,  incorrect.  In  para,  4  (ft) 
of  the  defendant  No,  1's  written  statement, 
dated  22nd  October  1923,  the  following 
passage  occurs: — 

(7)  n  M,  I  A,  551;  8  W.  R.  P.  C.  3;  2  SxitL  P,  0.  3, 
59;  2  Sar.  P.  0.  J.  259;  20  E.  B,  208. 
(8;  44  In4  C«»,  728;  40  A,  332;  10  A,  L,  J*  133, 


[92  I  0. 1926] 


GUDttTHURU  TttltttttffrA  V  BAlAKRlSlttfA 


915 


"Plaintiff  and  plaintiffs  father  and  de- 
fendant are  not  also  on  good  terms.  There 
was  much  litigation  between  plaintiff  and 
defendant  ^and  one  execution  case  of  the 
defendant  is  even  now  pending  against  the 
plaintiff,  and  so  even  if  the  alleged  mar- 
riage be  held  ( proved  and  btnding  on  the 
defendant,  still  it  is  impossible  for  the 
parties,  i.  e  ,  plaintiff  and  defendant  No.  1, 
to  live  together  as  husband  and  wife/1 

If  this  amounts  to  anything  at  all,  it 
necessarily  raised  a  matter  which  the  lower 
Courts  wefe  bound  fully  to  consider  before 
granting  the  relief  they  did.  As  this 
matter  will  have  to  be  the  subject  of 
enquiry  by  the  Court  below,  it  seems  un- 
desirable to  go  into  details  at  present,  but 
I  may  say  that  there  is  ample  matter  on 
the  record  to  show  that  the  plaintiff  had 
been  on  the  worst  of  terms  with  the  defend- 
ant and  her  relations  for  years  back.  Theie 
was  a  struggle  for  possession  of  the  move- 
able  property  and  valuable  immoveable 
property,  and  apparently  in  execution  pro- 
ceedings even  a  warrant  of  arrest  had  issued 
against  the  plaintiff.  All  these  matters 
required  full  consideration  before  the 
Court,  in  the  exercise  of  its  discretion, 
should  have  granted  the  decree  it  did.  It 
will  have  to  be  carefully  considered  whe- 
ther, if  a  decree  for  restitution  of  conjugal 
rights  is  granted,  there  will  be  danger  to 
the  health,  life  or  safety  of  the  appellant, 
and  the  lower  Appellate  Court  will  also 
have  to  consider  whether  the  suit  has  been 
brought  for  the  bona  fide  purpose  of  obtain- 
ing the  relief  claimed  therein,  or  whether 
the  real  object  of  the  plaintiff  is  to  obtain 
possession  of  the  property,  which  has  been 
the  bone  of  contention  between  the  parties 
for  years  past. 

I  accordingly  remand  the  case  to  the 
lower  Appellate  Court  for  a  finding  on  the 
following  issues : — 

(1)  If  a  decree  for  restitution  of  conjugal 
rights  ia  granted  to  the  plaintiff-respond- 
ent, is  there  likely  to  be  a  danger  to  the 
life,   health  or    safety    of  the    defendant- 
appellant? 

(2)  Js  there  any  other  reason   why  the 
Court  should  not  exercise  its  discretion  in 
favour  of  plaintiff. 

Should  the  Court,  in  the  exercise  of  its 
discretion,  find  It  necessary  to  consider  the 
question  of  granting  or  refusing  the  relief 
claimed  on  any  other  relevant  ground,  the 
lower  Appellate  Court  should  take  further 
pleadings  from  the  parties  in  this  connec- 


tion, and  if  further  evidence  be  necessary, 
it  will  be  at  liberty  to  have  that  evidence 
recorded  by  the  Judge  of  the  first  Court, 
but  the  District  Judge  must  in  due  course 
record  his  own  findings  on  the  points  in- 
volved and  submit  them  to  this  Court.  The 
findings  should  reach  this  Court  by  1st 
April  and  thereafter  15  days  will  be  allowed 
for  filing  of  objections  thereto  and  the 
appeal  will  be  finally  heard  on  15th  April, 
The  costs  of  this  remand  will  follow  the 
event. 
z.  K.  Case  remanded. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  ORDER  No  166  OF  1923. 

October  5,  1925. 
Present. — Mr.  Justice  Devadoss  and 

Mr  Justice  Waller. 
GUDUTHURU  T11IMMAPPA— 
PLAINTIFF — APPELLANT 

versus 
V  BALAKRISHNA  MUDALTAR 

AND   ANOTHER — DEFENDANTS- 
RESPONDENTS. 

Cwil  Procedure   Code  (Act  V  of  1908),  s    20  (c)-~ 
late  of  suing— Suit  for  dissolution  of  partnership — 
Business  can  led  on  at  several  places 

Where  a  partnership  business  is  carried  on  at  two 
places,  the  cause  of  action  for  a  bint  for  dissolution  of 
the  partnership  arises  m  both  the  places  and  the 
Courts  in  either  of  them  have  jurisdiction  to  enter- 
tain the  suit  [p  91G,col  ?.] 

J-tavah  Meah  Saib  v  Khajet  Meah  Saib,  4  M  H  0. 
R  218,  Luckmee  Chund  v  Zorawur  Mull,  8  M.  I  A. 
201  at  p  307,  1  W  R  P  C  35,  I  Suth  P  C  J.425,  1 
Sai  P  C  J  763,  19  E  H  541,  relied  on 

Appeal  against  a  decree  of  the  Court  of 
the  Subordinate  Judge,  Bsllary,  dated  the 
7th  March  1923,  in  O.  S  No.  16  of  1921. 

Mr  A.  Viswanatha  Aiyart  for  the  Appel- 
lant, 

Mr,  if,  Subbaroya  Atyar,  for  the  Respond- 
ents. 

JUDGMENT.— The  question  in  thia 
appeal  is  whether  the  Subordinate  Judge's 
Court  at  Bellary  had  jurisdiction  to  try  the 
suit.  The  suit  was  filed  so  far  back  as  5th 
March  1921  and  the  Subordinate  Judge 
decided,  that  the  Court  had  no  jurisdiction 
on  the  7th  March  1923.  ^  The  defendant 
raised  the  question  of  jurisdiction  in  Issue 
No.  15.  A  pi^eliipainaty  issue  like  this  should 
have  boe»  disposed  of  at  the  earliest  oppor- 
tunity, Tht^learfced  Subordinate  Judge 
did  not  dtt  that,  but  after  a  number  of 


916 

witnesses  were  examined  on  commission 
and  after  the  defendant  took  time  to 
adduce  evidence,  he  decided  this  question 
in  favour  of,the  defendant. 

The  suit  is  for  dissolution  of  partnership. 
The  plaintiff  who  is  a  resident  of  Bellaiy 
entered  into  partnership  with  the  defendant, 
a  resident  of  Coimbatore,  for  the  purchase 
and  sale  of  cotton.  Under  the  arrangement 
they  were  to  share  the  profits.  It  is  unne- 
cessary to  consider  what  shares  the  plaintiff 
and  defendant  had  in  the  partnership  as  it 
is  a  matter  which  has  to  be  determined  in 
the  suit.  The  defendant  admits  that  part- 
nership arrangement  was  entered  into  and 
that  the  plaintiff  and  he  were  partners. 
But  his  contention  is  that  the  partnership 
business  was  carried  on  only  in  Coimba- 
tore and  not  in  Bellary  and,  therefore,  the 
Court  at  Bellary  had  no  jurisdiction.  Under 
the  arrangement  the  plaintiff  was  to  pur- 
chase cotton  not  only  at  Bellary  but  in 
other  places,  but  the  sale  of  the  cotton  was 
to  be  effected  at  Coimbatore  where  cotton 
mills  are  situate.  The  accounts  of  the  busi- 
ness were  maintained  at  Bellary  as  alleged 
in  para.  20  of  the  written  statement.  The 
defendant  though  he  denied  that  the 
accounts  were  maintained  in  Bellary  did  not 
choose  to  say  where  the  partnership  accounts 
were  maintained.  His  Vakil  now  says  no 
accounts  were  necessary  as  it  was  arranged 
that  the  profits  of  each  consignment  should 
be  settled  at  once.  This  is  a  very  strange 
arrangement  for  settling  accounts  of  a  pa«- 
nership  in  which  very  large  consignments  |f 
cotton  were  made.  Inasmuch  as  the  d£- 
f  endant  chooses  to  say  that  no  accounts  were 
kept  by  him  at  Coimbatore  in  connection 
with  the  partnership,  it  cannot  be  said  that 
the  partnership  was  carried  on  only  at 
Coimbatore.  The  learned  Subordinate  Judge 
has  evidently  made  a  mistake  in  holding 
that  the  substantial  portion  of  the  business 
should  be  carried  on  at  Bellary  in  order  to 
give  jurisdiction  to  the  Bellary  Couit. 
Where  partnership  business  is  carried  en 
at  two  places,  the  cause  of  action  arises  in 
both  the  places  and  the  Courts  have  juris- 
diction to  entertain  the  suit  for  Dissolution 
of  partnership,  in  either  of  these  places, 
In  this  case  both  the  Coimbatore  ag  well  as 
the  Bellary  Courts  have  jurisdiction  to  enter* 
tain  the  suit.  This  suit  was  filed  in  the 
Bellary  Court  ~That  Court  had  jurisdic-, 
tion  to  try  the  case."  In  Bavah  Meah  Saib 
v.KhajeeMeahSaib  (1)  Bittleston,  J,,  ob- 


v.  SDfelf.  [ftS  I.  0. 1926] 

serves  at  page  222*  "As  regards  a  suit  of  this 
nature,  when  it  appears  that  the  partnership 
business  is  carried  on  substantially  in  two  or 
more  places,  I  think  that  the  cause  of  ac- 
tion does  partly  arise  in  each  of  those  places 
within  the  meaning  of  s.  12  of  our  Charter'1, 
Their  Lordships  of  the  Privy  Council 
attach  importance  in  connection  with  the 
carrying  on  the  business  to  the  fact  that 
1he  partnership  accounts  are  kept  at  a  parti- 
cular place.  InLuckmeeChund  v.  Zorawur 
Mull  (2)  their  Lordships  observe:  ''Where 
can  it  be  said  that  the  cause  of  action,  sup- 
posing it  exists  for  that  balance,  properly 
arose?  Muttra  was,  undoubtedly,  the  central 
place  of  business;  at  Muttra  the  partnership 
books  were  kept;  at  Muttra  the  partners 
would  have  recourse  to  these  books  for  the 
purpose  of  ascertaining  the  state  of  the  trans- 
actions between  them;  and  if,  in  the  result, 
a  balance  was  due  to  the  appellants,  Muttra 
would  be  the  place  where  the  payment  of  that 
balance  would  have  to  be  made.  It,  therefore 
appears  to  be  clear  to  their  Lordships  that  if 
there  is  a  cause  of  action  arising  out  of  the 
balance  resulting  from  these  partnership 
transactions,  the  cause  of  action  arose  at 
Muttra".  Here  as  already  observed  the 
books  of  the  partnership  were  maintained 
by  the  plaintiff  at  Bellary.  Therefore,  the 
cause  of  action  for  a  suit  of  this  kind  did 
arise  within  the  jurisdiction  of  the  Bellary 
Court  The  Subordinate  Judgehas  entirely 
gone  out  of  his  way  in  considering  whether 
the  accounts  have  been  satisfactorily  kept 
or  not.  That  is  a  matter  which  will  have 
to  be  dealt  with  when  the  suit  is  tried  ou 
the  merits. 

In  the  result  we  set  aside  the  decree  of 
the  Subordinate  Judge  and  direct  him  to 
restore  the  suit  to  file  and  proceed  with  it 
according  to  law.  The  respondent  will  pay 
the  costs  of  the  appeal. 

v.  N  v.  Appeal  allowed, 

(2*  8M  I  A  291  at  p.  307;  1  W  R.  P.  C.  35;  1  tiutii. 

P.  C  J  425,  1  gar.  P  C  J  763;  19  K.  R.  541. f 

"Tage  of  4  M.  H.  <J.  K  -  [Ed.] 

NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT* 

SECOND  CIVIL  APPEAL  No,  115  OF  1925,, 

October  31, 1025. 
Present: — Mr.  Hallifax,  A.  J.  C. 
B  AR  ATI— DBFBN  D  ANT— A  P£ELLANT 

versus 
8URIT— PtAiNTiFjr— RESPONDENT, 

C,  P,  Tenancy  Atf(I  of  16$0)>  9, 11   (£) 


[92 1.  0. 1926] 


BARATI  V.  SURtT. 


917 


holding— Joint  Hindu  family --Inheritance— Survivor- 
ship 

The  word  "inheritance"  m  s  11  of  the  C  P  Tenancy 
Act  of  1920  does  not  exclude  succession  by  sm  vivor- 
ship  [p.  917,  col  2  ] 

An  occupancy  holding  held  by  the  manager  of  a 
joint  Hindu  family  on  behalf  of  the  family  belongs  to 
the  family  and  passes  by  survivorship  and  not  by 
inheritance  [ibid  ] 

Appeal  against  a  decree  of  the  Additional 
District  Judge,  Raipur,  dated  the  22nd 
January  1925,  in  Civil  Appeal  No,  166 
of  1924. 

Mr.  J.  Seii,  for  the  Appellant. 

Mr.  A.  C.  Boy,  for  the  Respondent, 

JUDGMENT.— It  is  found  in  the  judg- 
ment of  the  lower  Appellate  Court  that 
"there  was  obviously  no  partition  between 
Bisahu  and  Surit  and  that  the  latter  was 
not  separate  from  Bisahu  in  the  sense  that 
he  relinquished  all  interest  present  or 
future  in  his  father's  property".  The  word 
partition  seems  to  be  used  in  the  sense  of 
a  division  of  the  property  in  which  each 
of  these  two  members  of  the  joint  family 
got  exactly  the  share  to  which  he  was  entitl- 
ed by  the  Hindu  Law  and  the  relinquish- 
ment  mentioned  seems  to  be  a  relmquish- 
ment  by  Surit  of  a  right  to  inherit  his 
father's  separate  property  if  he  should  be 
the  nearest  heir  at  the  time  of  his  father's 
death. 

We  are  not  concerned  with  either 
matter.  As  a  matter  of  fact  the  partition 
alleged,  and  completely  proved  by  the 
pleadings  of  Surit  himself  in  the  suit  of 
1915  among  othor  things,  gave  Surit  a 
larger  share  than  he  wa3  entitled  to  get  m 
the  joint  family  property,  (ft  is,  of  course, 
absurd  to  talk  of  his  share  in  his  father's 
property ,  they  were  both  members  of  a 
joint  family,  and  each  was  entitled  to  an 
equal  share  in  that  property,  not  to  any 
share  in  the  other's  share).  In  the  partition 
of  1900  Surit  was  entitled  to  get  one-ninth 
of  the  family  property,  but  by  remaining 
joint  with  his  grandfather  he  became  joint 
owner  (to  the  extent  of  a  half)  of  one- 
third,  to  say  nothing  of  his  right  to  take 
the  other  half  of  that  one  third  by  survivor- 
ship. 

But,  as  has  been  said,  it  does  not  matter 
whether  Surit  got  more  or  less  than  his  pro- 
per share  when  there  was  s  disruption  of 
the  joint  family  in  1900.  What  does  con- 
cern us  now  is  the  undoubted  fact  that  at 
that  time  Surit  separated  from  his  father  and 
brother  and  the  two  latter  remained  joint, 
as  their  share  or  as  part  of 


share  in  the  family  property  the  occupancy 
holding  now  in  dispute. 

Now  ordinarily  in  the  case  of  a  lease 
taken  by  the  manager  of  a  joint  Hindu 
family  in  his  own  name  but  with  family 
funds  and  really  on  behalf  of  the  whole 
family,  it  is  universally  accepted  that  the 
lease  and  the  benefits  of  it  belong  to  the 
whole  family  and  if  it  is  heritable  it  will 
pass  by  survivorship  and  not  by  inheritance, 
whatever  the  mutual  rights  and  liabilities 
of  the  lessor  and  the  members  of  <the  family 
other  than  the  manager  may  be.  But  by 
some  obscure  process  of  reasoning  which  I 
have  never  discovered  it  is  very  commonly 
held  that  this  does  not  apply  to  an  occup- 
ancy holding.  The  idea  has  been  exploded 
in  Chudaman  Singh  v.  Sakharam  (1),  Atma- 
ram  v.  Lala  (2)  and  Fagwa  v.  Budhram  (3) 
but  still  persists. 

The  only  argument  that  can  possibly 
be  advanced  in  favour  of  it  is  that  in  the 
Tenancy  Act  of  1920  the  word  inheritance 
only  is  used  in  reference  to  the  devolution 
of  an  occupancy  holding  in  s.  11,  whereas 
in  s  5  the  expression  used  in  lespect  of  an 
absolute  occupancy  holding  is  "inheritance 
or  survivorship",  and  s  46  of  the  Act  of 
1893  laid  down  that  the  right  of  an  occup- 
ancy tenant  on  his  death  was  to  "devolve  as 
if  it  were  land".  But  if  the  word  inherit- 
ance in  s.  11  of  the  Tenancy  Act,  1920,  is  to 
exclude  succession  by  survivorship,  we  are 
forced  to  the  impossibly  absurd  conclusion 
that  the  separated  son  of  an  occupancy 
tenant  succeeds  to  his  entire  holding  to  the 
exclusion  of  his  joint  son. 

But  there  is  no  question  here  of  suc- 
cession, either  by  inheritance  or  survivor- 
ship to  a  tenancy  belonging,  even  as  against 
the  landlord  alone,  to  the  father  separately. 
At  the  partition  of  1900  the  father  and  the 
son  who  remained  joint  with  him  were 
created  co-tenants  by  the  landlord  of  the 
one-third  part  of  the  entire  holding  belong- 
ing to  the  family  which  was  allotted  to  them. 
The  entry  of  the  father's  name  alone  in 
the  revenue  papers  is  merely  evidence  of  the 
contrary,  but  it  is  very  weak  evidence  and  is 
overwhelmed  by  the  other  facts.  The  case  is, 
therefore,  merely  one  of  two  co-tenants  suc- 
ceeding by  survivorship  to  the  entire  holding 
on  the  death  of  the  other. 

It  may  be  mentioned  that  Surit's  claim 
is  unjust  on  his  own  pleadings,  ancl 

(1)  13  0  P  L  K  137. 

(2)  10  Ind  Gas.  733,  7  N.  L,  R   36 

(3)  24  Ind,  Gas,  855;  10  N,  L,  J*  ^ 


91S 


MAHAMMAD  RAZA  3AHEB  BELOAMI  l\  9ADAS1VA  BAG. 


even  if  we  assume  that  there  was  no  pro- 
perty belonging  to  the  family  in  1900  except 
the  occupancy  holding,  which  we  are  not 
entitled  to  do,  and  that  the  decree  of  1915 
giving  Shiolal  one-sixth  of  the  holding  was 
wrong  which  seems  to  be  the  case.  On 
Surifc's  own  showing  he  is  now  entitled  to  a 
quarter  of  the  property  owned  by  the  family 
in  1900.  But  he  got  one-sixth  from  his 
grand-father,  and  he  now  claims  (and  has 
been  given)  one-sixth  more,  making  one- 
third  in  all,  while  his  brother  Bisahu  who  is 
also  entitled  to  a  quarter  gets  only  ono 
sixth. 

The  decree  of  the  lower  Appellate  Court 
will  be  set  aside  and  that  of  the  first 
Court  dismissing  the  suit  will  be  restored. 
The  plaintiff  Surit  will  pay  the  whole  of  the 
costs  of  both  parties  in  both  Courts.  The 
Pleader's  fee  in  this  Courts  will  be  thirty 
rupee?. 

«,  K,  Decree  set  aside. 


[92  L  0.  1926] 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  165  OF  1923 

AND 

CIVIL  MISCELLANEOUS  PETITION  No.  3407 

OF  1922. 

April  27,  1925. 

Present: — Mr.  Justice  Odgers  and 

Mr.  Justice  Madhavan  Nair. 

MAHAMMAD  RAZA  8AHEB  BELQAMI 

—PETITIONER 

versus 

MR.  K.  R.  8ADA8IVA  RAO  AND  OTHERS— 
RESPONDENTS. 

Madras  District  Municipalities  Act  (V  of  1920), 
ss.  13,22,  Sch.  IV,  rr.37,60,  62— Municipal  funds- 
Government,  power  of,  to  control  Municipal  expendi- 
ture— Surcharge — Chairman,  whether  bound  to  carry 
out  illegal  orders  of  Council — Chairman,  liability  of, 
to  be  surcharged— Writ  of  oertiorari,  whether  avail- 
able in  respect  of  wrong  orders  of  surcharge—  Govern- 
ment of  India  Act,  1915  (5  &  0  Geo,  V,  c.  61),  s.  W— 
Government  order  signed  by  Secretary,  Minutry  of  Local 
Self-Government,  validity  of 

Under  r.  37,  Sch.  IV  to  the  Madras  District  Munici- 
palities Act,  tlie  Government  has  the  power  to  control 
the  expenditure  of  Municipal  funds  by  passing  epecial 
orders  prohibiting  certain  expenditure  and  expendi- 
ture incurred  contrary  to  such  orders  is  contrary  to 
law  and  illegal,  and  a  Local  Fund  Auditor  is,  there- 
fore, entitled  to  surcharge  the  same  on  the  perse  n 
making,  or  authorising  the  making  of,  such  expendi- 
ture under  r.  60  d)  of  Part  II.  Sch.  JV  to  tfco  Act 
(p.  019,  col,  l;p,  9gl,ool,  1J 


A  Municipal  Ccnnoil  decided  to  introduce  thd 
national  system  of  education  in  all  institutions  under 
its  management  but  the  Government  at  the  same  time 
by  order  prohibited  the  use  of  Municipal  funds  for 
the  maintenance  of  any  school  not  recognised  by 
Government,  The  Municipal  Council  thereupon 
resolved  not  to  apply  for  freeh  recognition  as  to 
schools  controlled  by  them  • 

Held,  that  cheques  issued  by  the  Chairman  of  the 
Council  upon  Municipal  funds  for  the  purpose  of 
maintaining  such  schools  amounted  to  the  illegal 
expenditure  of  Municipal  funds,  and  that  the  Chair- 
man was,  therefore,  liable  to  bo  surcharged  in  respect 
of  the  amount  of  cheques  so  issued  by  him,  [p.  921, 
col  1,J 

An  order  of  the  Government  signed  by  the  Secretary 
to  Government,  Ministry  of  Local  Self -Government,  is 
none-thc-Ieas  an  order  of  the  Governor-in- Council 
under  r,  37  of  8ch  IV  to  the  Madras  District  Munici- 
palities Act  and  in  any  case  by  virtue  of  s.  49  of  the 
Government  of  India  Act,  an  objection  to  the  legality 
of  Government  orders  on  the  ground  of  informality 
cannot  be  entertained  by  Civil  Courts  [p.  921,  col,  2.] 

Sections  22  and  13  of  the  Madras  District  Munici- 
palities Act  should  be  read  together  and  subject  to  the 
limitation  imposed  by  r  37,  Sch.  IV  to  the  Act,  and  a 
Municipal  Chairman  is,  therefore,  not  bound  to  carry 
out  illegal  resolutions  of  the  Council  fp  921,  col.  1.] 

The  remedy  by  issue  of  wilt  of  certioran  is  not 
available  in  respect  of  wrong  or  illegal  order  of 
surcharge  made  under  tbe  Madras  District  Munici- 
palities Act,  since  a  substituted  remedy  therefor  has 
been  provided  by  r  62  of  Sch,  IV  to  the  Act. v  [p.  922, 
col.  1  ] 

Per  Madhavan  Nair,  J. — Writs  of  certiorari  are  not 
ganerally  granted  when  other  equally  efficacious  re- 
medies exist  under  the  law  for  the  satisfactory  redress 
of  the  grievances  complained  of  [p  92C,  col.  1  ] 

IN  0.  R.  P.  No  165  OF  1923. 

Petition,  under  s.  107  of  the  Government 
of  India  Act,  1915,  praying  the  Hi^h  Court 
to  revise  an  order  of  the  District  Court, 
Guntur,  dated  the  21st  April  li)22,  in  Origin- 
al Petition  No.  131  oM921. 

IN  C.  M.  P.  No.  3407  CF  1922. 

Petition  praying  that  in  the  circumstances 
stated  therein  and  in  the  affidavit  filed 
therewith  the  High  Court  will  be  pleased 
to  issue  a  writ  of  ceitiorari  against  the  audi- 
tor's order  of  surcharge,  dated  the  18th  No- 
vember 1921,  against  the  petitioner  herein, 
and  to  call  for  and  quash  the  same. 

Mr.  A.  Krishnasivami  Iyer,  for  the  Peti- 
tioner. 

Mr.  C.  V.  Anantakrishna  Iyer,  for  the  Re- 
spondents. 

JUDGMENT. 

IN  C.  R.  P.  No.  165  OF  1923, 
Odgcrs,  J* — This  is  a  petition  to  revise 
the  order  of  the  District  Judge  of  Guntnr 
confirming  a  surcharge  order  made  by  the 
Examiner  of  Local  Fund  Accounts  (Ex.  A) 
on  the  petitioner  as  Chairman  of  the  Guntur 
Municipal  Council  The  ground  for  tfie 


[921.0.1026] 

charge  is  that  the  petitioner  illegally  issued 
cheques  against  the  Municipal  funds  under 
the  powers  given  him  by  r.  55  (1),  Part  II 
of  Sch«  IV  of  the  Madras  District  Munici- 
palities Act  (V  of  li)20)  for  the  mainten- 
ance of  25  Elementary  Schools  managed  by 
the  Guntur  Municipal  Council;  such  objects 
not  being  authorized  objects  under  Act  V 
of  1920.  On  13th  July  192L  the  Guntur 
Municipal  Council  passed  a  resolution 
(Ex.  1)  (a)  to  introduce  the  national  system 
of  education  in  all  the  institutions  under 
the  management  of  the  Council,  (b)  to  dis- 
pense with  the  annual  grant  by  Government, 
(c)  to  conduct  Municipal  Primary  Schools 
independently  of  Government  control. 

On  19th  August  1921  (Ex  II)  a  Committee 
of  the  Guntur  Municipal  Council  was  ap- 
pointed to  formulate  the  methods  of  working 
the  national  system  of  education.  The  23 
Elementary  Schools  had  been  upto  this 
date  recognized  by  Government  under  the 
Educational  Rules  and  Government  had 
made  a  grant  towards  their  maintenance 
On  15th  August  1921  Government  issued  2 
Government  Orders.  No.  1583  (lix.  IV;  was 
issued  under  r.  37,  Sch  IV  of  the  Madras 
District  Municipalities  Act  (V  of  1920)  as  a 
special  order.  This  Government  order  ran 
as  follows: — 

"No  portion  of  a  Municipal  fund  shall  be 
applicable  to  the  purpose  of  maintaining 
or  aiding  any  educational  institution  which 
is  not  recognized  or  approved  by  the  Gov- 
ernment, the  District  Educational  Council 
or  any  other  authority  duly  authorized  by 
the  Governmentfin  this  behalf  to  grant  such 
recognition  or  approval." 

"By  order  of  the  Government,  Ministry  of 
Local  Self -Government 1f 

It  may  be  here  stated  that  r.  37,  Sch.  IV 
of  the  Madras  District  Municipalities  Act, 
1920t  reads  as  follows: — 

"The  purposes  to  which  the  Municipal 
fund  may  be  applied  include  all  objects  ex- 
pressly declared  obligatory  or  discretionary 
by-laws  or  rules,  and  in  general  everything 
necessary  for,  or  conducive  to  the  safety, 
health,  convenience  or  education  of  the 
inhabitants  or  to  the  amenities  of  the 
Municipality  and  everything  incidental  to 
the  administration  ;  and  the  fund  shall  be 
applicable  thereto  within  the  Municipality 
subject  to  these  rules  and  such  further 
rules  or  special  orders  as  the  governor  in- 
Councii  may  prescribe  or  issue;  and  shall 
be  applicable  thereto  without  the  Munici- 
pality if  the  expenditure  is  authorised  by 


MAHAMMAD  RAZA  SAHEB  BELOAMt  V.  SADASIVA  RAO, 


919 


this  Act,  or  specially    sanctioned   by  the 
Governor-in-Council." 

bo  the  Municipal  fund  is  applicable  to 
these  objects  within  the  Municipality  "sub- 
ject to  these  rules  and  such  f  urtherrules  etc." 
The  other  Government  Order  No.  1584  (Ex. 
V)  was  au  order  on  the  resolution  of  the 
Guntur  Municipal  Council  set  out  above 
and  reads  as  follows  . — 

"Recorded.  2.  -The  Government  presume 
that  the  Municipal  Council  does  not  require 
any  financial  help  from  the  Government 
for  any  purpose. 

"(By  order  of  the  Government,  Ministry  of 
Local  Self-Government)". 

The  Guntur  Municipal  Council  con- 
sidered on  14th  October  1921  these  Gov- 
ernment Orders  and  on  No.  1584  pass- 
ed the  following  resolution:  "This  Coun- 
cil decided  to  dispense  with  Govern- 
ment grants  only  in  regard  to  the  National 
Schools,  but  it  is  inexpedient  that  the 
Government  should  put  a  wrong  interpre- 
tation upon  it  and  presume  that  the  Council 
does  not  require  financial  help  from  them 
for  any  purpose.  The  Council  is  of  opinion 
that  under  these  circumstances,  it  is  worthy 
only  not  to  ask  for  financial  help  from  the 
Government."  Government  Order  No.  1*83 
they  considered  and  merely  recorded.  They 
also  considered  a  letter  from  the  Inspector 
of  Schools  (Ex  IX)  enquiring  whether  the 
Council  intended  to  apply  for  recognition 
for  the  newly  nationalized  Elementary 
Schools  and  resolved  that  such  recogni- 
tion was  unnecessary.  On  22nd  October 
19J1  the  District  Educational  Council  of 
Guntur  met  and  adjourned  a  resolution 
(Ex.  B)  to  withdraw  recognition  from  the 
newly  nationalized  Elementary  Schools  "in 
accordance  with  Government  Order  No. 
dated  ".  Previously  on  8th 

October  1921  the  Sub-Assistant  Inspector 
of  Schools  informed  the  petitioner  that  he 
intended  to  inspect  the  schools  of  the 
Municipality  uas  per  my  annual  programme 
of  work."  (Exhibit  C)  and  on  27th  October 
1921  the  Chairman  issued  a  Memo  (Ex.  0-1) 
to  Head  Masters  and  Head  Mistresses  to 
that  effect.  The  Inspector  attended  and 
extracts  fromliis  inspection  book  are  Ex  E 
dated  31st  October  1921  On  9th  November 
1921  Ex.  VII  Government  drew  the  attention 
of  the  Guntur  Municipal  Council  to  Gov- 
ernment Order  No  U83  (Ex  IV)  and  added, 

"Since  the  Council  has  decided  not  to  seek 
recognition  for  its  schools,  expenditure  of 
on  such  schools  is  illegal/' 


920 


MAHAMMAD  RAZA  SAHEB  BELQAMI  V  SADAS1VA  RAO. 


[02  L  0.1926] 


That  is  the  evidence  on  which  the  Dis- 
trict Judge  has  come  to  the  conclusion  that 
as  from  the  passing  of  Ex.  I  on  13th  July 
J921  the  Municipal  Schools  ceased  to  be 
recognized  by  Government.  The  first  con- 
tention addressed  to  us  for  the  petitioner 
is  that  as  these  schools  never  ceased  to 
be  recognized  they  did  not  fall  within 
the  mischief  of  Government  Order  Nos. 
1583  (Ex,  IV)  or  2208  (Ex.  VII).  The 
facts  that  the  District  Educational  Coun- 
cil adjourned  consideration  of  the  re- 
solution to  withdraw  recognition  and 
that  the  schools  were  inspected  as  us- 
ual by  the  Government  Inspector  in 
October  1921  are  cited  to  support  this  con- 
struction. It  is  to  be  observed  that  as  regards 
the  first  of  these  that  the  District  Educa* 
tional  Council  proposed  to  act  in  accordance 
with  a  certain  Government  Order  probably 
No.  1583  is  referred  to.  If  so,  it  is  quite 
possible  that  the  Council  thought  that 
any  action  on  its  part  was  unnecessary 
as  Government  had  already  treated  these 
schools  as  unrecognized.  That  this  latter 
is  true  there  can  be  no  doubt.  It  is  per- 
fectly clear  from  Ex.  IV  that  Government 
rightly  or  wrongly  purported  not  to 
recognize  or  approve  the  schools  after  the 
proceedings  of  the  Guntur  Municipal 
Council  on  13th  July  1921,  c/.,  also  Ex.  IX. 
Exhibit  IV  clearly  shows  that  Government 
assumed  equal  or  superior  powers  to  the 
District  Educational  Council  to  recognize 
or  approve.  Section  41  of  Act  VIII  of 
1920  (Elementary  Education)  is  relied  on 
to  show  that  recognition  of  Elementary 
Schools  is  to  be  applied  for  through  the 
Inspector  to  the  District  Educational 
Council,  which  is  the  recognising  authority 
subject  to  an  appeal  to  the  Director  of 
Public  Instruction.  Section  124,  District 
Municipalities  Act,  makes  the  rules,  etc., 
in  Sch.  IV  part  of  the  Act.  Seciton  304 
gives  the  Governor-in-Council  power  to 
amend  or  cancel  the  Schedule.  Rule  37, 
Sch.  IV,  has  been  set  out  above  and 
appears  to  me  to  give  the  Government  a 
final  control  over  the  expenditure  of  the 
Municipality.  It  is  said  for  the  petitioner 
that  so  long  as  the  aims  of -the  latter  are 
educative,  Government  has  no  control  over 
the  kind  of  education  which  is  provided. 
The  objects  of  expenditure  of  Municipal 
funds  are  set  out  in  r.  40.  The  ways  in 
which  the  Council  may  provide  instruction 
are  set  out  in  r.  48.  This  and  r.  47  (as  to 
the  duty  of  providing  education  generally) 


are  part  of  Part  II  of  the  Schedule  of 
which  r.  37  (above)  is  the  first  rule  and 
which  sets  out  the  authorized  objects  of 
expenditure.  Reading  these  rules  and 
s.  304  together,  I  feel  no  doubt  that  the 
clause  "Subject  to  these  rules,  etc.,"  in 
r.  37  would  also  apply  to  control  r.  48. 
Therefore  Government  cannot  only  refuse 
its  own  grant  to  schools  of  which  it  does 
not  approve  but  can  control  the  expendi- 
ture by  the  Municipality  of  such  school^. 
I  do  not  think  the  fact  that  a  Government 
Inspection  of  these  schools  took-  place  in 
accordance  with  the  Sub- Assistant  Inspec- 
tor's programme— no  doubt  arranged  long 
beforehand  as  indeed  he  states — has  any 
bearing  on  the  question.  The  Government 
did  not  wish  to  proceed  to  extremes  and  it 
was  not  till  9th  November  1921  (Ex.  VII) 
that  they  definitely  pointed  out  that  ex- 
penditure on  the  schools  was  illegal.  It 
appears  to  me  that  recognition  is  a  matter 
of  assent  on  both  sides.  Government  must 
accept  recognition  and  the  Educational 
Authority  must  desire  it.  As  soon  as  either 
side  withdraws,  recognition  is  at  an  end. 
This  is  not  an  appeal.  It  is  not  necessary 
for  me  to  say  whether  on  the  evidence  I 
should  have  come  to  the  same  conclusion 
as  the  District  Judge  but  it  appears  to  me 
there  is  evidence  on  which  the  District 
Judge  could  come  to  the  conclusion  he 
did  with  regaid  to  this  matter,  viz.,  that  the 
schools  were  unrecognized  at  any  rate  at 
the  date  from  which  the  surcharge  begins, 
viz,  10th  August  1921. 

The  next  point  is  as  to  the  liability  of  the 
Chairman  petitioner.  It  is  said  that  under 
s.  22  of  the  District  Municipalities  Act  the 
Chairman  was  bound  to  give  effect  to 
the  resolution  of  the  Council  of  13th  July 
1921.  Section  13  lays  down  the  general 
duties  of  the  Chairman.  By  s.  13  (c)  he  is 
to  carry  into  effect  the  resolutions  of  the 
Council  and  by  s.  13  (e)  the  Chairman  of 
the  Municipal  Council  shall  "perform  all  the 
-duties  and  exercise  all  the  powers  specifi- 
cally imposed  or  conferred  on  the  Chairman 
by  this  Act,  and  aubject,  whenever  it  is  here- 
inafter expressly  so  provided,  to  the  sanc- 
tion of  the  Council,  and  subject  to  all  other 
restrictions,  limitations  and  conditions 
hereinafter  imposed,  exercise  the  executive 
power  for  the  purpose  of  carrying  out  the 
provisions  of  this  Act,  and  be  directly  res- 
ponsible for  the  due  fulfilment  of  the  pur- 
poses of  this  Act/*  The  power  of  signing 
cheques  on  Municipal  funds  is  given  to 


[9»i.o.ittej 


MAHAMMAD  RAZA  SAHEB  BELGAMI  t>,  SADASIVi  RAO, 


the  Chairman  by  r.  55  (I)  of  Sch,  IV.  By 
rr.  66  to  62,  the  audit  of  accounts  is  con- 
trolled. By  r.  60  the  auditors  are  to  charge 
against  any  person  making  or  authorising 
the  making  of  an  illegal  payment.  Rule  62 
provided  that  the  Chairman  shall  apply  to 
the  Court  for  payment  of  any  sum  certified 
as  surcharged  and  it  is  said  that  this  cannot 
apply  to  a  case  where  the  Chairman  is  sur- 
charged himself .  It  no  doubt  applies  wheie 
the  Chairman  recovers  from  other  members 
or  from  a  former  Chairman  as  might  be  done 
in  this  case.  Section  353  of  the  Act  renders 
the  Chairman  as  well  as  the  other  members 
liable  for  loss,  waste  or  misapplication  of 
Municipal  money.  On  the  other  hand  it  is 
said  that  s.  ±2  is  opposed  to  s.  13  (e)  where 
the  words  "subject  to  all  other  restrictions, 
limitations  and  conditions  hereinafter  im- 
posed11 occur.  This  would  bring  in  the  re- 
strictions already  referred  to  in  r,  37, 
Sch.  IV.  It  is  perfectly  clear  to  my  mind 
that  the  Chairman  is  as  liable  as  any  mem- 
ber for  misapplication  of  moneys  It  may  be 
hard  that  he  be  rendered  so  liable  because 
he  was  merely  carrying  out  a  resolution  of 
the  Council  though  I  think  it  is  on  record 
that  he  voted  for  that  resolution  himself. 
I  think  s.  13  (e)  and  rr.  37  and  55  (i)  apply 
to  this  case.  The  Chairman  cannot  be  ob- 
liged to  carry  out  illegal  resolutions  and 
s.  22  provides  that  he  is  relieved  from  carry- 
ing out  a  resolution  modified,  suspended  or 
cancelled  by  a  controlling  authority.  If  the 
resolution  of  13th  July  1921  is  to  be  con- 
strued as  authorizing  him  to  spend  Munici- 
pal money  on  the'schools  after  the  Council 
had  dispensed  with  Government  aid  and 
control,  it  may  be  said  that  resolution 
was  afterwards  cancelled  by  a  controlling 
authority;  there  are,  however,  no  specific 
words  to  this  effect  in  the  resolution  and 
there  does  not  appear  to  be  any  sub- 
sequent resolution  to  that  effect.  The 
Chairman  signed  the  cheques  and  as  I 
have  already  found  he  did  so  for  an  illegal 
purpose.  He  is,  therefore,  in  my  opinion 
liable— whether  he  has  any  remedy  -or  not 
against  the  other  members  is  of  course  not 
o'pen  to  discussion  here. 

A  third  point  is  raised  for  the  peti- 
tioner. It  has  not  been  taken  below. 
That  is  that  the  Government  orders  were 
signed  thus  by  the  Secretary  to  Govern- 
ment. "By  order  of  the  Government,  Mi- 
nistry of  Local  Self- Government/1  It  is  of 
course  well-known  that  education  is  a  trans- 
ferred subject  under  s,  45-A,  cl,  (1),  aub-ol, 


(d)  of  the  Government  of  India  Act  which 
came  into  force  on  17th  Decmber  1920.  The 
date  of  the  District  Municipalities  Aqt  is 
29fch  June  1920.  It  is  said  that  r.  37  of  Sch. 
IV  of  the  District  Municipalities  Act  pro- 
vides that  the  'special  orders1  must  be 
prescribed  or  issued  by  the  Governor-in- 
Council  and  that  as  these  Government 
orders  were  signed  as  set  out  above 
they  are  invalid  as  they  do  not  con- 
form to  this  express  statutory  provision. 
Section  49  of  the  Government  of  India 
Act  provides  as  follows:  "All  orders  and 
other  proceedings  of  the  Government  of  a 
Governor's  province  shall  be  expressed  to 
be  made  by  the  Government  of  the  province 
and  shall  be  authenticated  as  the  Governor 
may  by  rule  direct,  so,  however,  that  provi- 
sion shall  be  made  by  rule  for  distinguish- 
ing orders  and  other  proceedings  relating  to 
transferred  subjects  from  other  orders  and 
proceedings. 

11  Orders  and  proceedings  authenticated 
as  aforesaid  shall  not  be  called  into 
question  in  any  legal  proceeding  on  the 
ground  that  they  were  not  duly  made  by  the 
Government  of  the  province.11 

In  my  opinion  this  provision  was  made 
expressly  to  meet  a  case  like  this  and  must 
be  taken  to  override  the  provision  in  r  37. 
There  is  thus  no^  substance  in  this  objec- 
tion. These  a~e'  the  points  raised  in  the 
civil  revision  petition  and,  in  my  opinion, 
they  all  fail  and  the  civil  revision  petition 
must  be  dismissed  with  costs 

0.  M.  P  No.  3407  OF  1922. 

This  relates  to  the  same  subject-matter 
and  is  a  petition  for  the  issue  of  a  writ  of 
certiorari  to  bring  in  and  quash  the  audit- 
or's order  of  surcharge  refeired  to  in  my 
judgment  in  Civil  Revision  Petition  No.  165 
of  1923. 

That  this  remedy  is  open  under  the 
English  procedure  is  undoubted.  The  Public 
Health  Act,  1875,  s.  247  (8)  provides  that 
"any  person  aggrieved  by  disallowance 
made  under  (7)  (surcharges)  may  apply  to 
the  Court  of  Queen's  Bench,  for  a  writ  of 
certiorari  to  remove  the  disallowance  into 
the  said  Courts,1'  etc.,  c/.,  R.  v.  Carson 
Roberts  (I)  and  R.  v.  Roberts,  Scurr,  Ex 
parte  (2).  The  question  is— Is  such  a  remedy 
open  under  the  District  Municipalities  Act 
Sch.  IV,  r.  60  corresponds  to  the  Pub- 

(1)  (1908)  IK  B   407,   77  L  J  K    U    281,  98  L.  T 
154,  72  J   P.  $1:  6  L  G    K,  268,  24  T  L  R  226 

(2)  (1024)  2  K.  B  695,  94  L  J  K  B  1,  88  J.  P.  174; 
69  ft  J-  10;  22  L,  O,  R,  718,  40  T.  L.  K,  769, 


922 


MiHAMMAD  RAZA  SAHEB  BELGAMT  V.  SADAS1VA  RAO. 


Ho  Health  Act,  1875,  s.  247  (7),  but  sub- 
s,  (8)  of  the  Statute  runs  as  already  set  out 
above,  whereas  r.  61  runs  thus  "any  person 
aggrieved  by  disallowance,  surcharge  or 
charge  made  may,  within  fourteen  days 
after  he  has  received  or  been  served  with 
the  decision  of  the  auditor,  apply  to  the 
principal  Civil  Court  of  original  jurisdic- 
tion to  set  aside  such  disallowance,  sur- 
charge or  charge  and  the  Court  after  taking 
such  evidence  as  is  necessary,  may  confirm, 
modify  or  remit  such  disallowance,  surcharge 
or  charge  with  such  orders  as  to  costs  as 
it  may  think  proper  in  the  circumstances; 
or  in  lieu  of  such  application  any  person 
so  aggrieved  may  appeal  to  the  Governor- 
in-Council  who  shall  pass  such  orders  as 
he  thinks  fit." 

Rule  62  corresponds  generally  with  s. 
247  (9).  It  seems  to  me,  therefore,  that  the 
remedy  by  certiorari  in  this  paiticular 
matter  is  not  open  under  the  District  Muni- 
cipalities Act  and  that  a  substituted  remedy 
has  been  provided  in  that  Act  for  the 
remedy  by  certiorari  given  by  the  Statute. 
Therefore  whatever  may  be  or  may  not  be 
the  general  powers  of  the  Court  to  issue 
this  writ,  it  seems  to  me  that  that  power, 
if  it  ever  existed  in  the  present  case  has 
been  by  implication  removed  by  the  Act, 
which  provides  another,  and  specified 
remedy.  Further  even  if  the  power  exists  in 
the  present  case,  no  prima  facie  case  has, 
in  my  opinion,  been  made  out  for  its  exer- 
cise by  us. 

The  petition  must  be  dismissed  with 
costs. 

IN  C.  R.  P.  No.  165  OF  1923, 

Madhavan  Nali%  J.— The  facts  ne- 
cessary for  the  discussion  of  this  civil  re- 
vision petition  and  the  civil  miscellaneous 
petition  are  fully  set  out  in  my  learned 
brother's  judgment  with  which  I  agree. 

The  civil  revision  petition  is  against  the 
order  of  the  District  Judge  of  Guntur 
refusing  to  set  aside  the  order  made  by  the 
Examiner  ot  Local  Fund  Accounts,  Madras 
surcharging  the  petitioner— the  Chairman  of 
the  Guntur  Municipality— with  Rs.  1,771  6-0. 
The  surcharge  certificate  was  issued  by  the 
first  respondent  under  r.  60  (1)  of  Sch.  IV, 
of  the  Madras  District  Municipalities  Act 
(V  of  1920)  which  empowers  every  Auditor 
to  "disallow  every  item  contrary  to  law  and 
surcharge  the  same  on  the  person  making, 
or  authorizing  the  making  of,  the  illegal 
payment/1  The  case  against  the  petitioner 
&3  mentioned  in  the  surcharge  certificate  is 


[921.0,10281 

that  "he  issued  cheques  against  the  Muni- 
cipal funds  on  different  dates  between  the 
10th  of  August  1921  and  the  31st  of  October 
1921  for  amounts  aggregating  to  Rs.l,771~6-0 
towards  the  salaries  of  teachers  and  for 
expenses  in  connection  with  the  mainten- 
ance of  25  educational  institutions  within 
the  Municipality,  contrary  to  special  orders 
issued  by  the  Government  under  r.  37  of 
Part  II  of  Sch.  IV  of  the  District  Municipa- 
lities Act,  which  made  such  payments  il- 
legal. The  Guntur  Municipal  Council,  by 
its  resolution  dated  the  13th  of  July  1921, 
Ex.  I,  decided  to  introduce  (1)  the  national 
system  of  education  in  all  the  institutions 
under  the  management  of  the  Council,  (2) 
to  dispense  with  the  annual  grant  by  the 
Government  and  (3)  to  conduct  the  Municipal 
Primary  Schools  independently  of  Govern- 
ment Control.  On  the  lOth  of  August  1921 
the  Government  passed  the  following  Gov- 
ernment Older  No.  1583  (Ex.  IV)  under  r.  37, 
Sch.  IV  of  the  District  Municipalities  Act  (V 
of  1^20)  as  a  special  order  and  communicat- 
ed it  to  all  Chairmen  of  Municipal  Councils 
including  the  Chairman  of  the  Guntur 
Municipal  Council :  "No  portion  of  a  Muni- 
cipal fund  shall  be  applicable  to  the  pur- 
pose of  maintaining  or  aiding  any  educa- 
tional institution  which  is  not  recognised 
or  approved  by  the  Government,  the  Dis- 
trict Educational  Council  or  any  other  au- 
thority duly  authorised  by  the  Government 
in  this  behalf  to  grant  such  recognition  or 
approval. 

(By  order  of  the  Government,  Ministry 
of  Local  Self-Government) 

(Sd.)  P.  J.  Richards, 
Secretary  of  Government." 

On  the  same  date,  reading  the  resolu- 
tion of  the  Municipal  Council,  Ex.  I,  the 
Government  communicated  to  the  Chair- 
man, Government  Order  No.  1584  (Ex.  V) 
in  which  it  was  stated  that  "The  Govern- 
ment presume  that  the  Municipal  Council 
does  not  require  any  financial  help  from 
the  Government  for  any  purpose.1'  On  the 
9th  of  November  1921  the  Government  passed 
and  communicated  to  the  Guntur  Municipal 
Council,  Government  Order  No.  2208  (Ex. 
VII)  in  which,  after  drawing  its  atten- 
tion to  Ex  IVt  the  Government  stated 
that  "Since  the  Council  has  decided  not  to 
seek  recognition  for  its  schools,  expendi- 
ture of  Municipal  funds  on  the  said  schools 
is  illegal."  The  question  for  our  decision 
is  whether  the  expenditure  of  Municipal 
fund  by  the  Chairman  on  the 


[92  L  0. 1926J 

institutions  mentioned  in  the  surcharge 
certificate  subsequent  to  Ex.  IV  is  illegal. 

Three  arguments  have  been  advanced 
before  us  by  Mr,  Krishnaswami  Iyer  on 
behalf  of  the  petitioner;  (1)  since  the 
schools  in  question,  which  were  already 
recognised  schools  (i.  e,,  prior  to  Ex.  I), 
never  ceased  to  be  recognised,  they  did  not 
fall  within  the  ban  of  Government  Order 
No.  1583  or  of  any  other  Government  order 
passed  in  connection  with  this  matter  and, 
therefore,  the  expenditure  of  Municipal  funds 
on  such  schools  is  not  illegal;  (2)  according 
to  law,  the  Chairman  of  a  Municipality  is 
not  liable  to  be  surcharged  for  making 
'illegal  payments;  and  (3)  Government  Order 
No.  1583  and  the  other  Government  orders 
issued  by  the  Government  arenotvalidordeis 
as  they  were  not  issued  by  the  Governor-in- 
Oouncil,  as  required  under  r.  37,  Part  II, 
Sch.  IV,  of  the  District  Municipalities  Act. 
I  shall  examine  these  arguments  separately. 

(1)  The  25  educational  institutions  under 
the  control  of  the  Guntur  Municipality 
were  "recognised  institutions,11  prior  to  the 
passing  of  the  Madras  Elementary  Educa- 
tion Act,  (VIII  of  1920).  After  the  Elemen- 
tary Education  Act  came  into  force  these 
continued  to  remain  as  recognised  institu- 
tions, (see  s.  41,  cl.  (iv)  of  the  Act)  and  the 
power  to  withdraw  recognition  or  to  con- 
fer it  afresh  was  vested  by  the  Act  in 
the  District  Educational  Council.  It  is 
argued  by  the  learned  Vakil  for  the  peti- 
tioner that  the  Government  had,  therefore, 
no  power  to  •  withdraw  the  recognition 
already  conferred  upon  the  schools  and, 
since  the  District;  Educational  Council  did 
not  specifically  withdraw  the  recognition 
consequent  upon  the  passing  of  the  resolu- 
tion Ex.  I,  the  expenditure  of  the  Muni- 
cipal fund  on  these  institutions  is  not 
illegal, 

|,l  The  various  resolutions  of  the  Council  and 
the  Government  Orders  passed  by  the  Gov- 
ernment are  referred  to  in  detail  in  my 
learned  brother's  judgment.  I  have  no 
doubt  that  by  Ex.  IV  the  Government 
purported  not  to  recognise  or  approve  of 
the  Municipal  Schools  after  the  Council 
had  passed  the  resolution  dated  the  13th 
of  July  1921,  Ex.  I.  In  pursuance  of  it 
the  Government  on  the  same  date  com- 
municated to  the  Municipality  the  order 
Ex,  V  in  which  they  presumed  that  the 
Municipality  did  not  require  any  financial 
help.  The  proceedings  set  out  in  my 
learned  brother's  judgment  show  clearly* 


M  AH  AM  MAD  RAZi  SAHGB  HELGAMI  1).  SADA3IVA  BAD,  923 

that  the  order  of  the  Government  passed 


on  the  10th  of  August  1921  was  understood 
as  an  order  withdrawing  recognition  and 
prohibiting  the  expenditure  of  the  Muni- 
cipal fund  on  the  schools  in^question  \\hich 
ceased  to  be  recognised  on  that  date.  The 
intention  of  the^ Government  was,  however, 
made  absolutely  clear  by  Ex  VII  which 
clearly  declared  that  expenditure  of  Muni- 
cipal fund  on  the  said  schools  was  illegal. 
Iu  my  opinion,  it  is  not  necessary  for  the 
purpose  of  this  case,  to  consider  whe- 
ther, after  the  passing  of  the  Madras 
Elementary  Education  Act  (VIII  of  1920) 
the  Government  still  had  the  power  of 
granting  recognition  to  the  Elementary 
Schools  or  withdrawing  it  from  them;  that 
the  Government  thought  that  it  still  had  the 
power  to  grant  recognition  for  the  Munici- 
pal Secondary  Schools  is'clear  from  its  order 
Ex.  VI,  Government  Order  No.  1942,  dated 
the  5th  of  October  1921,  which  is  to  the  fol- 
lowing effect :  In  Government  Order  No. 
1583,  L.  &  M.  dated  10th  August  1921,  the 
Government  issued  a  special  order  under  r, 
37 of  Sch.  IV  of  the  Madras  District  Munici- 
palities Act  1920,  prohibiting  the  expendi- 
ture of  Municipal  funds  on  educational  in- 
stitutions which  are  not  recognised  or  ap- 
proved by  the  Government,  the  District 
Educational  Council  or  any  other  authority 
duly  authorised  by  the  Government  in  this 
behalf  to  grant  such  recognition'or  approval. 
Under  s.  41  of  the  "Madras  Elementary 
Education  Act,  1920"  District  Educational 
Councils  are  empowered  to  grant  recogni- 
tion to  Municipal  Elementary  Schools.  The 
Government  are  now  pleased  to  authorise 
the  Director  of  Public  Instruction  to  grant 
recognition  for  Municipal  Secondary 
Schools  for  the  purpose  of  this  order. 
Rightly  or  wrongly  the  Government  pur- 
ported to  withdraw  the  recognition  of  the 
Elementary  Schools  in  question  and  con- 
sequently passed  orders  prohibiting  ex- 
penditure on  rthose  schools.  The  real 
question  to  be  considered  is  whether  the 
Government  have  the  power  -to  control 
the  expenditure  of  Municipal  funds  by 
passing  special  orders  prohibiting  expendi- 
ture. If  such  power  is  vested  in  the  Gov- 
ernment— whether  the  exercise  of  it  in  any 
particular  case  is  justifiable  or  not — it  is 
clear  that  expenditure  contrary  to  such 
orders  will  be  contrary  to  law  and  illegal, 
and  the  Auditor  will,  therefore,  be  entitled 
to  surcharge  the  same  on  the  person  mak- 
ing, or  authorising  the  making  of,  such 


924 


M  AHA  MM  AD  IUZA  SAHEB  BELQAMI  V.  SADASIVA  RAO. 


expenditure  under  r.  GO  (1)  of  Part  II,  Sch. 
IV,  Rule  37,  of  Part  II,  Sch.  IV  of  the 
Madras  District  Municipalities  Act  provides 
that,  "The  purposes  to  which  the  Muni- 
cipal fund  may  be  applied  include  all  ob- 
jects expressly  declared  obligatory  or  dis- 
cretionary by-laws  or  rules,  and  in  general 
every  thing  necessary  for,  opconducive  to  the 
safety,  health,  convenience  or  education  of 
the  inhabitants  or  to  the  amenities  of  the 
Municipality  and  everything  incidental  to 
the  administration;  and  the  fund  shall  be 
applicable  thereto  within  the  Municipality 
subject  to  these  rules  and  such  further 
rules  or  special  orders  as  the  Governor- in- 
Council  may  prescribe  or  issue/'  Section 
124  of  the  Act  makes  the  rules  and  tables 
embodied  in  Sch.  IV  as  part  of  Chap.  VI 
which  relates  to  Taxation  and  Finance. 
Under  s,  304,  "The  Governor-in-Council 
may  make  rules  altering,  adding  to,  or 
cancelling  Hch.  II,  Sch.  V,  Sch.  Vi  or  Part 
II  of  Sch.  IV."  According  to  the  District 
Municipalities  Act,  the  expenditure  of  the 
Municipal  fund  is  limited  to  purposes  in- 
cluding "education1'  specified  in  r.  37  and 
referred  to  in  detail  in  the  subsequent 
rules  and  the  "fund  is  to  be  applied  thereto 
within  the  Municipality  subject  to  these 
rules  and  such  further  rules  or  special 
orders  as  the  Govcrnor-in-Council  may  pre- 
scribe or  issue."  This  makes  it  clear  that 
the  Government  can  prohibit  by  passing 
special  orders  the  expenditure,  of  the  Muni- 
cipal fund  on  schools  of  which  it  does  not 
approve,  it,  therefore,  follows,  that  the 
payments  made  by  the  Municipal  Chair- 
man for  defraying  the  Expenses  of  these 
schools  subsequent  to  the  10th  of  August 
1921  are  illegal,  inasmuch  as  they  were 
made  contrary  to  Government  orders  pro- 
hibiting such  expenditure.  The  Auditor 
was,  therefore,  rightly  entitled,  under  r. 
60  (1)  of  Part  II,  Sch.  IV  of  the  District 
Municipalities  Act,  to  surcharge  the  amount 
on  the  person  making,  or  authorizing  the 
making  of  such  illegal  payments. 

The  second  question  for  consideration 
is  as  regards  the  liability  of  the  Chairman 
of  the  Municipality.  Mr.  Krishnaswami 
Iyer's  argument  to  show  that  the  Chair- 
man is  not  liable  to  be  surcharged  is  based 
on  ss.  13  (<s),  22,  40  (1)  and  r.  62  of  Sch. 
IV  of  the  District  Municipalities  Act. 
According  to  s.  13,  cl.  (c)  "  The  Chair- 
man of  the  Municipal  Council  shall  carry 
into  effect  the  resolutions  of  the  Council." 
Section  22  state4  that  "The  Chairman 


[92  L  0.  1926] 

shall  be  bound  to  give  effect  to  every  reso- 
.  lution  of  the  Council  unless  such  resolution 
is  modified,  suspended  or  cancelled  by  a 
controlling  authority/*  Section  40  (1)  lays 
down  that  "The  Governor-in-Council  may, 
by  notification,  remove  any  Chairman,  if 
he,  without  an  excuse  sufficient  in  the 
opinion  of  the  Governor-in-Council,  omits 
or  refuses  to  carry  out  any  resolution  of 
the  Municipal  Council".  These  sections 
should  show  that  the  Chairman  of  a  Muni- 
cipality is  bound  to  carry  out  the  resolu- 
tions of  the  Municipal  Council  and,  if  he 
refuses  to  do  so,  he  is  liable  to  be  removed 
by  the  Governor-in- Council.  If  so,  it  is 
argued  that  he  is  not  liable  to  be  surcharg- 
ed for  giving  effect  to  the  resolution  dated 
the  13th  of  July  3921.  This  argument  is 
sought  to  be  supported  by  an  inference 
drawn  from  r,  62.  This  rule  provides  that 
"Every  sum  certified  to  be  due  from  any 
person  by  auditors  under  this  Act  shall 
be  paid  by  such  person  to  the  Chairman 
within  14  days  after  the  intimation  to  him 
of  the  decision  of  the  auditors  unless 
within  that  time  such  person  has  appealed 
to  the  Court  or  to  the  Governor-in-Council 
against  the  decision;  and  such  sum  if  not 
so  paid,  or  such  sum  as  the  Court  or  the 
Governor-in-Council  shall  declare  to  be 
due,  shall  be  recoverable  on  an  application 
made  by  the  Chairman  to  the  Court  in  the 
same  way  as  an  amount  decreed  by  the 
Court "  It  is  pointed  out  that  since  this 
rule  makes  provision  for  Chairman  to  re- 
cover from  persons  sums  certified  to  be  due 
from  them  by  the  auditor,  it  is  to  be 
understood  that  the  Act  does  not  con- 
template that  the  Chairman  is  liable  to  be 
surcharged  by  the  auditor.  In  reply  to 
this  argument  the  learned  Government 
Pleader  relies  on  s.  13,  cl.  (e)  and  points 
out  that  the  suggested  inference  of  the 
non-liability  of  the  Chairman  does  not 
follow  fromr.  62.  Section  13,  cl.  (e)  states 
that  the  Chairman  of  the  Municipal 
Council  shall  "perform  all  the  duties  and 
exercise  all  the  powers  specifically  imposed 
or  conferred  on  the  Chairman  by  this  Act, 
and,  subject,  whenever  it  is  hereinafter  ex- 
pressly so  piovided,  to  the  sanction  of  the 
Council,  and  subject  to  all  other  restric- 
tions, limitations  and  conditions  herein- 
after imposed,  exercise  the  executive  power 
for  the  purpose  of  carrying  out  the  pro- 
visions of  this  Act,  and  be  directly  respon- 
sible for  the  due  fulfilment  of  the  pur- 
poses of  this  Aot«"  The  words  "subject 


[92  L  0. 1926] 


MAHAMMAD  RA2A  SAHEfe  BELQAMt  V.  8ADABIVA  RAO. 


925 


to  all  other  restrictions,  limitations  and 
conditions  hereinafter  imposed"  introduce 
the  restriction  referred  to  in  r.  37  and  thus 
impose  limitations  on  the  Chairman's  duty 
to  carry  out  the  resolutions  of  the  Council 
I  think  ss.  22  and*  13  of  the  Act  should 
be  read  together  and  subject  to  the  limit- 
ation iniposed  by  r.  37;  and,  if  so  read,  it 
would  follow  that  the  payments  made 
by  the  Chairman  in  this  case  in  carrying 
out  the  «  resolution  of  the  Council  dated 
the  13th  of  July  1921  in  view  of  the 
special  orders  of  the  Government  prohibit- 
ing the  expenditure  of  the  Municipal  fund 
would  be  illegal  payments,  and  as  he  was 
the  person  who  made  such  illegal  payments 
by  issuing  cheques  under  r.  55  (1),  Sch.  IV 
of  the  Act,  the  auditor  would  be  entitled  to 
surcharge  him  for  making  such  illegal 
payments,  r.  62,  Sch.  IV  of  the  Madras 
District  Municipalities  Act  does  not  warrant 
the  inference  that  the  Chairman  is  not 
liable  to  be  surcharged.  The  rule  only 
points  out  how  the  Chairman  may  recover 
the  surcharged  amount.  Under  that  rule 
a  Chairman  may  recover,  in  the  way  indi- 
cated therein,  the  surcharged  amount  from 
any  person  from  whom  the  sum  is  certified 
to  be  due  by  the  auditor  under  the  Act 
including  a  -former  Chairman  as  in  this 
case.  I  am,  therefore,  of  opinion  that  the 
Chairman  of  a  Municipality  is  liable  to  be 
surcharged  under  the  Act  for  making 
illegal  payments. 

The  third  and  the  last  argument  address- 
ed on  behalf  of  the  petitioner  relates  to  the 
form  of  the^  Government  order.  The 
Government  orders  in  question  were  issued 
uBy  order  of  the  Government,  Ministry  of 
Local  Self-Government"  and  signed  by  the 
"Secretary  to  Government".  Under  r.  37, 
Sch.  IV  of  the  District  Municipalities  Act, 
"f urther  rules  or  special  orders  referred  to 
therein  should  be  prescribed  or  issued  by 
the  Governor- in- Council".  It  is  argued  that, 
since  the  Government  orders  in  this  case 
were  issued  "By  order  of  the  Government, 
Ministry  of  Local  Self-Government  and  not 
by  the  Governor-in- Council",  the  Govern- 
ment orders  are  invalid  as  they  do  not 
conform  to  the  express  statutory  provision 
contained  in  the  District  Municipalities 
Act.  There  is  no  force  in  this  contention. 
The  District  Municipalities  Act  was  passed 
on  the  29th  of  June  ll»0  and  the  Govern- 
ment of  India  Act  came  into  force  in 
Madras  by  notification  on  the  17th  of 
December  1920,  Under  s,  45A,  oL  (1), 


sub  cl  (d)  of  the  Government  of  India  Act, 
edacation  has  been  made  a  "transfeired 
subject11.  Section  46  (1)  provides  that  the 
Presidency  of  Fort  St.  George  shall  be 
governed,  in  relation  to  reserved  subjects, 
by  a  Governor-in-Council  and  in  relation  to 
transferred  subjects,  by  the  Governor 
acting  with  ministers  appointed  under  the 
Act.  Section  49  (1)  of  the  Government  of 
India  Act  lays  down  that  "all  orders  and 
other  proceedings  of  the  Government  of  a 
Governor's  province  shall  be  expressed  to 
be  made  by  the  Government  of  the  province 
and  shall  be  authenticated  as  the  Governor 
may  by  rule  direct,  so,  however,  that  pro- 
vision shall  be  made  by  rule  for  distinguish- 
ing orders  and  other  proceedings  relating 
to  transferred  subjects  from  other  ordeis 
and  proceedings".  The  Government  orders 
m  question  have  been  authenticated  as 
mentioned  in  this  section.  It  is  stated  in 
the  same  section  that  "Orders  and  proceed- 
ings authenticated  as  aforesaid  shall  not 
be  called  into  question  in  any  legal  pro- 
ceeding on  the  ground  ^that  they  were  not 
duly  made  by  the  Government  of  the  pro- 
vince." In  view  of  this  provision,  the 
objection  that  the  Government  orders  in 
this  case  are  invalid  as  they  do  not  conform 
to  the  statutory  provision  of  the  District 
Municipalities  Act  cannot  any  longer  be 
entertained  in  any  legal  proceeding  and 
must  be  overruled. 

In  the  result,  I  agree  that  this  civil 
revision  petition  should  be  dismissed  with 
oost  s 

IN  C.  M.  P.  No.  3407  OF  1922. 

This  civil  miscellaneous  petition  has  been 
filed  for  the  issue  of  a  writ  of  certwrari  to 
bring  in  and  quash  the  certificate  of  sur- 
charge mad 3  by  the  auditor.  Reliance 
has  been  placed  by  the  learned  Vakil  for 
the  petitioner  on  the  decisions  in  R.  v. 
Carson  Roberts  (1)  and  R  v  Roberts,  Scurrt 
Ex  parte  (2)  to  show  that  in  England  such 
wiils  are  issued  for  quashing  surcharge 
orders.  Those  decisions  are  under  the 
English  Public  Health  Act,  1875,  which 
contains  provisions  relating  to  surcharge 
and  also  provides  for  applications  by 
aggrieved  persons  to  the  Court  of  King's 
Bench  for  writs  ofcertiorari  to  remove  their 
disallowance  in  the  said  Court  (see  s.  247, 
els.  (7),  8  and  (9).  The  rules  in  the  District 
Municipalities  Act  relating  to  surcharge 
seem  to  be  framed  on  the  analogy  of  the 
provisions  of  the  English  Public  Health 
Act  wtth  this  important  difference  that  for 


$26  GAtJBA  TEUN 

the  statutory  remedy  by  way  of  certiorari 
provided  for  in  s.  247,  cl.  (8)  of  the  English 
Act,  the  Indian  Act  by  r,  61  substitutes 
application  to  the  principal  Civil  Court  of 
original  jurisdiction,  or  in  lieu  of  such 
application,  appeal  to  the  Governor-in- 
Council  as  remedies  of  persons  aggrieved 
by  surcharge  orders  (see  r,  61).  The 
English  decision  being  based  upon  a  specific 
provision  of  the  English  Public  Health  Act 
which  provides  for  the  making  of  applica- 
tions for  writs  of  certiorari>  are  not  of  much 
use  in  considering  the  question  arising 
under  the  Indian  Act  which  does  not  pro- 
vide for  any  such  applications.  On  the 
other  hand,  the  absence  of  such  a  provision 
in  our  Act  coupled  with  the  substitution  of 
another  provision  in  its  place  rather  suggests 
that  the  Legislature  thereby  intended  that 
this  remedy  should  not  be  open  to  aggriev- 
ed persons  under  the  District  Municipalities 
Act.  Writs  of  certiorari  are  not  generally 
granted  when  other  equally  efficacioii3 
remedies  exist  under  the  law  for  the  satis- 
factory redress  of  the  grievances  complain- 
ed of.  Such  being  the  case,  the  petitioner 
is  not  entitled  to  ask  for  the  issue  of  a 
writ.  I  have  already^  shown,  in  my  judg- 
ment, in  the  civil  revision  petition  that  he 
has  not  succeeded  in  showing  that  the  order 
of  the  learned  District  Judge  is  wrong.  I  do 
not  say  any  thing  about  the  general  powers 
of  this  Court  to  issue  writs  of  certiorari  in 
relation  to  such  matters  as  we  are  now  con- 
sidering; nor  do  I  express  any  opinion  on 
the  question  whether  the  general  power  of 
this  Court  to  issue  the  writ,  if  it  ever  exist- 
ed in  the  present  case,  could  be  taken  away 
by  implication  by  the  District  Munici- 
palities Act.  I  may  also  state  that  it  has 
not  been  argued  with  reference  to  authori- 
ties whether  this  very  ancient  remedy, 
which  is  the  ordinary  process  by  which  the 
High  Court  brings  up  for  examination  the 
Acts  of  bodies  of  inferior  jurisdiction  and 
which  is  frequently  spoken  of  as  being 
applicable  only  to  "judicial  acts"  and  not  to 
purely  ministerial  acts  [see  JR.  v,  Woodhouse 
(3)]  does  exist  in  respect  to  certificates  of 
surcharge  made  by  auditors. 

I  agree  that  this  petition  also  should  be 
dismissed  with  costs* 

V.  N.  V. 

z.  K,  Petition  dismissed. 

(3)  (1906)  2  K.    B.  501  at  p.  534;  75  L  J.  K  B.  745; 
70  J,  P,  485;  95  L.  T.  399;  22  T,  L.  K.  603, 


v,  SHRIRAM  BHOT^R.  [92 1.  0. 1926] 

NAGPUR  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  APPEAL  No.  10  OP  1925. 

September  18,  1925. 
Present :— Mr.  Hallifax,  A.  J.  0. 
GAUR  ATE  LIN— DEFENDANT  No.  1 
— APPELLANT 

versus 

SHRIRAM  BHOYER  AND  ANOTHSR— 
PLAINTIFF — DEFENDANT  No,  2 
— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  W08\  0.  VI,  rr.  2, 
16,  17 —Pleadings,  contents  of—Pleas  of  law,  whether 
can  be  raised — Amendment,  when  should  be  allowed — 
New  plea  contradictory  to  oldt  whether  sufficient 
ground  /or  rejection— C.  P.  Tenancy  Act  (I  of  1920), 
s  11 — Tenant,  death  of — Distant  heir  of  deceased 
tenant  in  occupation — Malguzar,  whether  can  eject. 

It  is  the  duty  of  a  Court,  whether  with  or  without 
the  help  of  the  parties  and  their  Pleaders,  to  discover 
for  itself  and  to  apply  the  law  applicable  to  the  facts 
pleaded  and  proved  In  a  pleading,  therefore,  facts 
nlone  must  be  stated  and  pleas  of  law  must  be  ex- 
cluded, (p.  1)27,  col.  1.1 

A  point  of  law,  provided  it  is  a  point  that  can  be 
applied  to  the  facts  proved,  although  it  directly  con- 
tradicts anything  that  may  have  been  said  during  the 
whole  case  about  the  law  applicable  to  those  facts, 
can  bo  urged  by  tin  parties  at  any  time  before  judg- 
ment is  pronounced  and  it  can  form  the  basis  of  the 
decision  of  the  case  even  if  it  occurs  only  to  the 
Judge  himself  when  he  is  writing  his  judgment. 
[ibid.] 

Order  VI,  r  16,  C.  P  C  ,  does  not  limit  the  period 
wlien  a  plea  must  be  taken,  it  bars  only  pleas  that  are 
ii  relevant  or  scandalous  or  may  tend  to  prevent  a  fair 
ti  lal  of  Iho  case.  [p.  927,  col  2.] 

A  Couit  is  bound  to  allow  an  amendment  under 
O.  VI,  r  17,  C  P.  C.,  if  it  is  necessary  for  the  purpose 
of  determining  the  leal  question  in  controversy  be- 
tween the  parties,  [ibid.] 

A  Court  has  no  power  to  refuse  to  allow  an  amend- 
ment of  pleadings  for  any  reason  except  those  men- 
tioned ID  r.  16  of  O.  VI,  0.  P.  C.,  which  do  not  include 
a  contradiction  between  the  new  pleading  and  the  old. 
[ibid.] 

Under  the  C.P.  Tenancy  Act  kmalguzar  being  in  the 
position  of  the  very  last  reversioner  is  not  entitled  to 
eject  a  distant  heir  of  a  deceased  tenant  on  the  ground 
that  he  has  no  right  to  succeed  to  the  holding  as  there 
are  nearer  heirs  of  the  tenant  in  existence,  [p.  928, 
col,  1.] 

Appeal  against  a  decree  of  the  District 
Judge,  Chhindwara,  dated  the  22nd  Decem- 
ber 1924,  in  Civil  Appeal  No.  84  of  1924. 

Mr.  M.  B.  Niyogi,  for  the  Appellant. 

Mr.  S.  B.  Gokhale,  for  Respondent  No.  1, 

JUDGMENT.— A  great  part  of  the 
welter  of  documents  filed  in  this  case  as 
"  written  statements f1  is  taken  up  with 
propositions  of  law  and  arguments  on  them. 
That  is  expressly  forbidden  by  the  0.  P.  0. 
The  putting  in  of  such  pleadings  and  the 
mistakes  made  in  deciding  them  in  this  case 
are  based  on  the  common  idea  that  a  Court 
is  not  bound  to  consider,  or  rather  is  bound 


[921.0.1928] 

not  to  consider,  any  view-of  the  law  in  res- 
pect of  the  facts  before  it  except  such  as 
is  laid  before  it  formally  by  the  parties  or 
their  Pleaders,  if  they  happen  to  have  any, 
and  further  is  required  to  answer  nothing 
but  yes  or  no  to  any  plea  of  law  that  may 
be  taken,  It  is  the  duty  of  the  Court,  whe- 
ther with  or  without  the  help  of  the  parties 
or  their  Pleaders,  to  discover  for  itself  and 
to  apply  the  law  applicable  to  the  facts 
pleaded  and  proved.  Practically  every  rule 
of  Os.  VI  and  VII  of  the  0.  P.  0.,  particularly 
r.  2  of  O.  VI,  shows  that  in  any  "  pleading1', 
that  is  to  say  any  plaint  or  written  state- 
ment, facts  alone  must  be  stated  and  pleas 
of  law  must  be  excluded. 

A  point  of  law,  provided  it  is  a  point 
that  can  be  applied  to  the  facts  proved  and 
although  it  directly  contradicts  anything 
that  may  have  been  said  during  the  whole 
case  about  the  law  applicable  to  those  facts, 
can  be  urged  by  the  parties  at  any  time 
before  judgment  is  pronounced,  and  it  can 
be  the  basis  of  the  decision  of  the  case  even 
if  it  occurs  only  to  the  Judge  himself  when 
he  is  writing  his  judgment.  There  are 
several  instances  of  this  having  been  done 
in  the  finding  given  by  the  learned  Sub- 
ordinate Judge  himself  on  the  25th  of  July 
1924  when  he  held  that  the  malgitzar  was 
entitled  to  eject  Jairam  because  there  were 
nearer  heirs  than  Jairam  in  existence. 
This,  as  is  well-known,  can  be  done  not  only 
in  the  first  Court  but  in  the  Appellate 
Court  and  even  in  second  appeal. 

What  has  all  through  the  case  been  called 
an  amendment  of  the  pleadings  was  noth- 
ing but  a  fresh  suggestion  of  one  of  the 
legal  inferences  to  be  drawn  from  the 
pleadings,  which  under  r.  2  of  O.  VI  must 
be  confined  to  facts.  In  his  order  refusing 
to  allow  this  amendment  the  learned  Sub- 
ordinate Judge  has  in  effect  admitted  that, 
even  if  it  had  been  an  amendment  of  a  real 
11  pleading",  that  is  a  statement  of  fact,  he 
had  no  power  to  refuse  it  under  r.  16  of  0. 
VI,  and  that  he  was  bound  to  allow  it  under 
r.  17.  He  writes  :  "  Had  the  defendants  ap- 
plied for  this  amendment  before  the  case 
of  defendant  No,  2  was  adjudicated  upon 
I  would  have  had  no  hesitation  to  permit 
the  defendants  to  take  these  pleas,  but  after 
adverse  decision  has  been  passed  against 
defendant  No.  21  do  not  permit  such  an 
amendment.  I  have  ample  power  under  O. 
VI,  r.  16,  Civil  Procedure  to  strike  out 
such  a  plea  even  if  it  was  already  made.11 

But  r,  16  says  nothing  about  * 


GAtJBA  TfiLttf  *  8HRIRAM  BHOYSR. 


927 


taken  at  any  particular  stage  of  the  case,  or 
before  or  after  the  decision  of  any  other 
plea  ,  it  Rpeaksonly  of  pleas  that  are  irrel- 
evant or  scandalous  or  may  tend  to  prevent 
a  fair  trial  of  the  case.  This  plea  \Nas 
certainly  neither  irrelevant  nor  scandalous, 
and  that  it  was  not  of  the  last  of  these  three 
classes  but  that,  on  the  contrary,  its  rejec- 
tion might  tend  to  prevent  a  fair  trial  of 
the  case  is  admitted  over  again  in  the  fol- 
lowing words,  which  follow  those  just  quot- 
ed. "  Even  taking  into  account  the  grave 
hardships  that  my  refusal  may  cause  to  the 
defendants  I  cannot  permit  parties  to 
play  a  game  of  Hide  and  Seek",  That  is  to 
say,  not  only  that  the  refusal  might  tend  to 
prevent  a  fair  trial,  but  also  that  the  amend- 
ment was  necessary  for  the  purpose  of 
determining  the  real  question  in  controversy 
between  the  parties,  the  right  to  posses- 
sion  of  the  land  ;  the  Court  was,  therefore, 
bound  to  allow  it  under  r.  17.  - 

In  this  c'se  practically  all  the  facts  on 
which  the  defendants  now  seek  to  rely  as  a 
basis  for  the  legal  inference  that  they  were 
co-tenants  with  Ilina  were  stated  in  the 
very  first  written  statement  filed  by  Gaura 
before  Jairam  was  ever  made  a  party,  and 
they  were  stated  again  with  greater  detail 
in  the  first  written  statement  filed  by  the 
two  defendants  jointly.  As  has  been  shown 
thetCourt  has  no  power  to  refuse  to  allow 
an  amendment  of  a  pleading,  even  using 
that  word  in  its  proper  meaning  of  pleas  of 
fact,  for  any  reason  except  those  mentioned 
in  r.  16  of  0.  VI,  which  do  not  include  a 
contradiction  between  the  new  pleading 
and  the  old.  Anyhow  why  should  a  party 
be  prevented  from  taking  a  new  plea  of 
fact  inconsistent  with  facts  already  pleaded? 
He  does  it  at  his  own  risk.  If  the  pleas  are 
contradictory  they  work  out  their  own  re- 
tribution by  disproving  each  other  to  the 
extent  of  that  contradiction  and  of  the 
party's  knowledge  of  them. 

In  this  view  of  the  matter  the  order  of 
the  lower  Appellate  Court  that  neither  de- 
fendant can  resist  the  claim  to  the  occu- 
pancy holding  is  also  wrong.  The  admis- 
sion to  that  effect  might  be  considered  to 
be  an  admission  of  unstated  facts  which 
would  defeat  that  claim,  though  it  is  ob- 
viously no  such  thing.  But  if  it  is  the 
defendants  can  now  deny  those  facts  and 
can  prove  that  denial.  If  they  did  actually 
admit  them  to  be  true  in  the  first  place, 
that  will  make  their  disproof  of  them  so 
muoh  the  more  difficult, 


928 


AYIS^ARYANANDAJI  SAKE 3  U.  SlWAJl  RAJA  SAHRB. 


[92  1.  0. 


Gaura  alone  has  appealed  but  Jairam  is 
a  respondent  supporting  the  appeal,  and  the 
order  of  the  lower  Appellate  Court  can  be 
altered,  under  r.  33  of  0.  XLI,  in  respect 
of  the  case  against  him  also.  The  decision 
that  the  malguzar  can  eject  Jairam  because 
there  are  nearer  heirs  than  Jairam  in  exist- 
ence will  be  seen  to  be  impossible  if  it  is 
considered  what  the  decision  would  have 
been  if  a  nearer  heir  than  Jairam,  but  not 
the  nearest,  had  taken  possession  and 
Jairam  had  sued  to  eject  him;  the  malguzar 
is  merely  the  last  leversioner  and  comes 
after  Jairam. 

The  idea  that  the  malguzar  holds  some 
position  other  than  that  of  the  very  last 
reversioner,  which  runs  all  through  the 
decision,  is  exemplified  in  an  oral  statement 
by  the  plaintiff's  Pleader  in  which,  with 
reference  to  the  heirs  nearer  than  Jairam, 
he  said  :  ".The  right  of  these  nearer  heirs 
is  barred  by  the  adverse  possession  of  the 
defendants  and  the  plaintiff  as  a  landlord 
can  eject  the  defendants'*.  If  the  right  of 
the  nearer  heirs  was  extinguished,  so 
and  even  more  so  was  that  of  the  more 
distant  reversioner.  Also  if  the  parties  are 
to  be  held  down  to  anything  of  that  sort 
they  or  their  Pleaders  may  say,  the  suit 
ought  to  have  been  dismissed  on  that  plea; 
it  is  a  statement  of  fact  that  the  possession 
of  the  defendants  had  been  of  such  a 
character  and  such  duration  that  the  right 
of  even  the  true  owners  had  been  exting- 
uished. 

The  whole  of  that  part  of  the  order  of  the 
lower  Appellate  Court  which  restricts  the 
scope  of  the  fresh  trial  of  the  suit  must, 
therefore,  be  set  aside.  The  first  Court  will 
take  such  fresh  pleadings  of  facts  from  the 
parties  as  may  seem  necessary  ;  there  can 
be  few  if  any  not  already  taken.  On  those 
pleadings  it  must  frame  issues  first  in  res- 
pect of  any  fact  alleged  by  one  party  and 
denied  by  the  other,  and  then  in  respect  of 
all  the  possible  legal  effects  of  the  facts  ad- 
mitted or  found  proved  on  the  right  of 
either  Gaura  or  Jairam  or  both  to  remain 
in  possession  of  the  absolute  occupancy 
holding  or  of  the  occupancy  holding  or  of 
both.  All  the  costs  in  both  Appellate  Courts 
with  the  exception  of  the  Court-fees  on  the 
two  petitions  of  appeal,  will  be  paid  by  the 
respondent  Shriram  Bhoyer.* 

Another  matter  to  be  mentioned  in  regard 
to  the  judgment  of  the  lower  Appellate 
Court  is  that  the  learned  Judge  considered 


that  the  defendants  wfcffc  to  blame  for  the 
necessity  for  the  appeal,  in  which  I  cannot 
agree  with  him,  and  proceeded,  therefore, 
to  "  order  no  refund  of  the  Court-fees  paid 
in  appeal,  and  direct  that  the  whole  costs 
of  the  appeal  be  borne  by  the  appellants/' 
Reference  to  s  13  of  the  Court  Fees  Act  will 
show  that  this  order  is  not  only  wrong  but 
of  no  effect.  If  the  defendants,  who  were 
the  appellants  in  that  Court,  apply  to  the 
District  Judge  for  "  a  certificate  authorising 
them  to  receive  back  from  the  Collector  the 
full  amount  of  fee  paid  on  the  memorandum 
of  appeal  "  he  is  bound  to  grant  it.  A 
certificate  for  the  refund  of  the  Court-fees 
in  this  Court  will  issue  to  the  appellant. 


z.  K. 


Order  accordingly. 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  64  OF  1920. 

March  18, 1925. 

Present: — Justice  Sir  Charles  Gordon 
Spencer,  KT,,  and  Mr.  Justice  Kumaraswami 

Sastri. 
RY.  V.  AYISWARYANANDAJI  SAHEB 

(DlBD)  AND    OTHERS — PLAINTIFFS 

Nos.  1  TO  6,  DEFENDANTS  Nos.  SAND  4,  LEGAL 

REPRESENTATIVES  OF  PLAINTIFFS  Nos.  1  AND  2 

AND  OF  DEFENDANT  $sfo,  3— APPELLANTS 

versus 
RY.  SIWAJI  RAJA  SAHEB  AND  OTHBRS- 

DfiFENDANTS  NoS.  J,  2  AND  6  TO  21 — 

RESPONDENTS. 

Hindu  Law — Religious  endowment — Succession  to 
trusteeship  -  Usage— Management  ly  single  individual 
—Confiscation  by  State  and  re-grant,  efect  o/,  on  rule 
of  succession — Widow — Acquired  property^  whether 
stridhanam  or  accretion  to  estate— Inheritance— Illegi- 
timate son  of  sudia,  right  o/,  to  inherit  to  father's 
collaterals, 

The  Rajahs  of  Tanjore  had  time  after  time  endow- 
ed and  founded  certain  devasthanams  and  other 
charities.  These  had  continued  in  the  possession  and 
management  of  the  Rajah  for  the  tune  being  and  till 
the  death  of  the  last  ruler,  the  office  was  always  held 
by  a  single  individual.  After  the  death  of  the  last 
ruler  in  1855,  when  the  Raj  itself  woe  seized  by  the 


1.  0.  1926]  AYISWARYANANDAJI  SAttfeB  V.  SIWA«tl  RAJA  SAHBB. 


929 


India  Company  as  an  act  of  State,  the  Pagodas 
arid  the  devasthanams  were  also  taken  -possession  of 
and  managed  by  the  Government  In  1883,  K,  the 
senior  widow  of  the  late  Rajah,  applied  for  and  #ot 
possession  of  the  deva&hanams  and  other  trust  pro- 
perties as  the  head  of  the  family,  but  the  course  of 
succession  was  not  indicated  in  the  Government's 
order  of  restoration  On  her  death,  the  trust  estate 
was  managed  by  the  widow  who  in  turn  became  the 
senior  Ram  and  so  on  until  the  last  of  the  Rams 
died  in  1912  Disputes  then  aiose  between  the 
illegitimate  sons  of  the  lafce  Rajah  and  the  sons  of  an 
adopted  son  as  to  succession  both  as  to  the  private 
estate  of  the  Rajah  and  as  to  the  management  of  the 
trust,  The  private  estate  was  duected  to  be  parti- 
tioned On  the  question  of  the  rule  of  succession  to 
the  trust  estate 

Held,  that  since  the  founders  of  the  institutions 
Intended  that  their  successors  who  occupied  the  Raj 
should  continue  to  have  the  sole  management  of  the 
temples  and  pagodas  and  the  endowments  attached  to 
them  and  since  the  Government  by  restoring  the  pi  o- 
perties  to  the  Ram  as  "head  of  the  family  for  the  time 
being'1  indicated  then  intention  that  they  should  con- 
tinue to  be  managed  by  a  sole  trustee,  the  trusteeship 
was  not  liable  to  be  divided  and  the  elder  grandson 
was  solely  entitled  to  the  trusteeship  of  the  dtvas- 
tkanams  and  the  charities  [p  932,  eol  1  "| 

A  Hindu  widow  has  an  absolute  ught  of  dispubal 
over  the  income  of  the  property  which  sho  mheiits 
from  her  husband  She  can  either  spend  the  same  or 
accumulate  it  for  her  own  benefit  In  case**  where 
she  purchases  propsities  or  nvvests  hci  savings  and 
indicates  by  her  conduct  an  intention  that  the  pro- 
pextiea  puichased  out  of  her  savings  should  form  pait 
of  her  husband's  estate,  such  savings  should  follow 
the  same  rules  as  regaids  devolution  to  her  husband's 
estate,  and  should  be  tieated  as  accretions  to  the 
estate  Where  she  does  not  do  so,  she  has  absolute 
powers  of  disposal  over  such  property  and  can  sell  01 
give  the  same  to  anybody  she  pleases  without  any 
right  of  the  reversionera  to  question  her  alienations 
Where  the  question  is  on-3  of  intention  to  be  deduced 
or  inferred  from  her  conduct,  the  piesmnption  is  that 
she  intends  to  keep  the  property  for  her  own  aKsolutc 
benefit  and  to  have  absolute  powers  of  disposal  over 
it.  Where,  however,  a  \vidow  is  not  in  possession  of 
hex  husband's  estate,  there  is  no  presumption  that  any 
of  the  properties  which  she  gets  aie  to  be  treated  as 
accretions  to  her  husband's  estate  On  her  death  such 
properties  would  follow  the  same  course  of  succession 
as  her  stndhanam  properties  [p  938,  col  2,  p  931), 
coi.  11 

Under  the  Hindu  Law  an  illegitimate  son  of  a  sudra 
is  not  an  heir  to  his  putative  father's  collateral  lela- 
tions  and  can  have  no  right  to  succeed  to  the  stn- 
dhanam  of  his  father's  widows  who  were  married  in 
an,  approved  form.  [p.  933,  col.  1  ] 

Per  Kumaras warm  Saatm,  J  — In  cases  of  succession 
to  religious  institutions,  the  main  question  to  be  con- 
sidered is  what  is  the  usage  of  the  institutions;  and 
wKere  from  the  date  of  thejfoundation  of  the  chanties 
Up  to  the  date  of  the  suit,  the  trust  was  managed  by 
ft*  single  individual  who  was  the  head  of  the  family 
not  in  possession  of  any  partible  property,  the  office 
must  be  treated  as  impartible  and  not  liable  to  be 
held  by  more  than  one  person  at  a  time,  [p  935,  col  2  ] 

In  cases  of  confiscation  and  re-grnnt  of  property 
which  is  impartible,  the  law  is  that  in  the  absence  of 
anything  in  the  re-grant,  th  e  property  \vhich  is  re- 
<prant«d  is  subject  to  the  old  incident  of  impartibihty, 

59 


There  is  no  distinction  as  to  the  nature  of  the  estate 
taken  between  propeity  inherited  by  a  woman  from  a 
male  and  pioperty  inherited  fionx  a  female.  lu  both 
the  cases  she  takes  not  an  absolute  estate  but  only  a 
qualified  one  [p  939,  col  2,] 

Per  Spencer,  J  — It  is  a  question  of  fact  in  each  case 
whether  a  widow  has  dealt  with  the  income  of  her 
husband's  property  m  such  a  manner  as  to  make  it 
an  accretion  to  the  corpus  [  p  932,  col  2  ] 

[Case-law  considered  on  all  points  ] 

Appeal  against  a  decree  of  the  Court? 
of  the  Subordinate  Judge,  Tanjore,  in, 
Original  Suit  No.  43  of  1913. 

The  Advocate-General,  Messrs.  Qopala 
DesifcanandA.  Krishnaswami  Iyer,  for  the 
Appellants. 

Messrs.  T.  R.  Ramachandra  Iyer,  T.  R. 
Krishnaswami  Iyer,  A.  V.  Viswanatha 
Sastri  and  C,  S.  Venkatachariary  for  the 
Respondents. 

This  appeal  and  the  memorandum  of 
objections  filed  by  the  2nd  respondeht  com- 
ing on  for  hearing  on  the  22nd,  23rd  $nd 
21th  October  1924,  and  having  stood!  over 
for  consideration  till  the  17lh  of  Novembet 
1924  the  Court  delivered  the  following 
JUDGMENT. 

Spencer,  J,— Shfaji,  the  last  Hajah  pf 
Tanjore,  died  in  1855.  After  his  death  the 
East  Indian  Company  took  possession  not 
only  of  the  Raj  of  Tanjore  and  the  private 
properties  of  the  late  Raja,  but  also  certain 
pagodas  and  devasthanams  which  had  been 
in  his  possession  and  management  up  to  the 
date  of  his  death.  It  was  held  by  the 
Privy  Council  that  the  East  India  Com* 
pany's  usurpation  of  this  property  amount* 
ed  to  an  act  of  State  of  which  the  ordinary 
Civil  Courts  could  not  take  cognizance* 
Subsequently  the  senior  Rani  Kamakshi 
Bai  Saheba  petitioned  Government  for  a 
restoration  of  the  estate  and  also  of  the  de- 
vasthanams.  The  estate  was  restored  by 
proceedings  of  the  Madras  Government, 
dated  21st  August  1862,  which  we  have 
dealt  with  in  another  place.  The  order  re- 
storing the  devasthanams  was  dated  the  19th 
March  1863 

In  her  memorial,  dated  the  24th  December 
1862,  Kamakshi  Bai  Saheba  prayed  that, 
the  pagodas  and  chritable  institutions  which 
had  been  founded  from  time  to  time  by 
members  of  her  family  might  be  made 
over  to  her  as  the  head  of  the  family  for 
the  time  being  She  mentioned  in  her 
memorial  that  Mr.  Phillips,  the  Commis- 
sioner of  Tanjore,  had  in  1858  recomniencU 
ed  the  Government  to  make  over  these 
endowments  to  Sakharam  Saheb,  husband 
of  the  Princess,  and  that  the  Government 


030 


AVISWARYANANJXyi  SiHEB  V.  «IWAJ1  fcAJA-SAHEQ. 


[92 1  CX 1926J 


refused  to  accept  that  recommendation.  The 
Government  Agent,  in  forwarding  Kamak- 
sbi  Bai's  memorial,  recommended  her  prayer 
to  be  granted  on  the  ground  that  it  was 
highly  desirable  that  all  connection  with 
these  religious  institutions  on  the  part  of 
Government  should  cease.  The  Governor 
in  Council  concurred  with  the  Agent's  re- 
commendation and  ordered  the  pagodas  to 
be  made  over  to  the  Rani.  In  doing  so, 
the  Government  did  not  indicate  the  course 
of  succession  to  be  followed  in  the  manage- 
ment of  these  endowments  after  Kamakshi 
Bai's  death.  Accordingly  she  managed  the 
institution  till  1892,  when  she  died. 

Upon  her  death  Government  again  took 
possession  of  the  devasthanams  and  put 
them  under  the  management  of  the  Temple 
Committee  of  Tanjore.  The  next  senior 
Rani  Umamba  Bai  brought  a  suit  (O.  S. 
No.  3  of  1894)  for  the  recovery  of  these  dev- 
asthanams and  their  endowments,  basing 
her  title  on  the  fact  that  she  was  the , senior 
JRaniand  head  of  the  family.  She  im plead- 
ed the  Secretary  of  State  for  India,  ttie 
members  of  the  Tanjore  and  Kombakonam 
DeiMthfinam  Committees  and  the  other 
JRantir  as  "defendants  in  her  suit.  In  a  care- 
ful judgment,  in  which  he  set  out  the  his- 
tory of  tfyese  institutions.  Mr,  Venkobc- 
chariar,  then  Subordinate  Judge  of  Tanjore 
came  to  the  conclusion  that  the  Govern- 
ment had  no  right  to  resume,  or  in  any  way 
interfere  with,  the  management  of  the 
temples  after  granting  them  in  favour  of 
Kamakshi  Bai,  that  they  devolved  as  im- 
partible property  and  that  by  the  State 
grant  restoring  them  Kamakshi  Bai  acquir- 
ed heritable  interest  in  the  properties.  He 
decreed  the  suit  in  plaintiffs  favour. 
There  was  an  appeal  to  the  High  Court, 
which  was  heard  by  Shephard  and  Davies, 
JJ.  Those  learned  Judges  dismissed  the 
appeal  holding  that  the  estate  taken  by 
the  senior  Rani  was  in  the  nature  of  self- 
acquired  property  in  her  hands  in  the  sense 
that  her  rights  were  derivative  from  Gov- 
ernment and  had  no  relation  1  o  inheritance 
on  the  death  of  the  Rajah.  They  inferred 
from  the  fact  that  the  plaintiff  was  chosen 
as  the  person  to  whom  the  trust  should  be 
made  over  in  her  capacity  of  widow  of  the 
late  Rajah,  that  the  intention  of  the  Govern- 
ment was  to  grant  her  a  widow's  estate,  that 
is,  to  put  her  in  the  position  which  she 
would  have  enjoyed  had  there  been  no  con- 
fiscation on  the  death  of  her  husband  the 
Rajah, 


After  the  death  of  Umamba  Bai  the  dev~ 
asthanam  estate  was  managed  by  each  of  the 
widows  who  in  turn  became  senior  widow 
until  the  last  widow  Jijamba  Bai  died  in 
1912.  Disputes  then  arose  between  the 
children  of  the  Rajah's  sword  wives,  who  are 
known  as  Man  gala  Vilas  people,  and  the 
sons  of  the  adopted  son,  who  are  defendants 
NL>S.  1  and  2.  The  former  brought  0.  8. 
No.  43  of  1913  in  which  they  claimed  the 
right  to  be  declared  entitled  to  the  pos- 
session and  management  of  the  devastha* 
namsand  then-endowments  and  also  to  share 
in  the  immoveable  and  moveable  properties 
purchased  by  the  widows  of  the  late  Rajah 
which  became  accumulations  and  accretions 
to  the  private  estate  of  the  Rajah  to  which 
they  claimed  to  succeed  either  as  his  heirs 
or  as  heirs  to  the  widows  who  acquired  these 
properties  as  tlridhanam. 

The  learned  Subordinate  Judge,  in  dis- 
posing of  these  and  other  properties  of  the 
Rajah,  held  that  the  acquisitions  of  the  vari- 
ous Ranis  having  been  purchased  in  their 
own  names,  became  their  separate  estates; 
and  as  regards  the  devasihanam  properties, 
he  held  that  the  Government  graivt  was  to 
Kamakshi  Bai  by  name  as  a  single  indivi- 
dual or  sole  trustee  and  that  the  endow- 
ments were,  therefore,  not  capable  of  being 
made  the  subject  of  partition,  but  would 
pass  to  the  head  of  the  family  for  the  time 
being,  that  individual  at  the  time  of  suit 
being  the  1st  defendant,  and  he  accordingly 
dismissed  the  suit. 

In  appeal,  Mr.  AlladiKrishnaswami  Ayyar 
argued  that  the  trusteeships  of  the  deias- 
thanams  should  follow  the  same  line  of 
inheritance  as  the  private  estate  of  the 
Rajah  and  that  the  Mangala  Vilas  people 
having  been  held  entitled  to  share  in  the 
private  estate,  should  also  be  given  a  share 
in  the  management  of  the  temples,  the  Gov- 
ernment having  by  their  grant  destroyed 
the  incident  of  impartiality  which  once 
attached  to  the  estate.  In  support  of  his 
arguments  he  relied  on  Raja  Venkata  Rao 
v.  Court  of  Wards  (1),  tfamanathan  Chetty 
v.  Murugappa  Chetty  (2)  the  principles  upon 
which  this  case  was  decided  having  been 
approved  by  the  Privy  Council  in  Rama- 
nathan  Chetly  v,  Murugappa  Chetty  (3)  on, 

(1)  2  M.  128;  3  Buth.  P.  0.  J.  725;  6  0.  L.  R.  153;  4 
Ind.  Jur.  133,  3  Shome  L.  R.  175;  7  I.  A.  38;  4  Sar.  P* 
0,  J.  81;  1  Ind,  Dec.  (N.  s)  381  (P.  0.). 

(2)  27  M,  W;iSM.L.  J.  341. 

(3)  29  M.  283;  10  0,  W,  N;  825;  8  Bom,  L,  R.  498; }« 
M,  L,  J.  265;  4  0.  L.  J,  189;  3  A*  L,  J,  707;   1  M,  U  T, 


[92  I.  C.  1926]  AYlSWlRYAtflNDAJI  SABEB  tf.  S1WAJI  BAJA  SAHBB. 


931 


Sethuramaswamy  Iyer  v.Meruswami  Iyer(i) 
from  which  there  was  an  appeal  to  the  Privy 
Council  in  Sethuramaswamiar  v.  Meru- 
swamiar  (5)  which  reversed  the  decision  of 
this  Court,  on  Meenakshi  Achi  v.  Soma- 
sundaram  Pillai  (6)  and  Tkandamroya 
Pillai  v.  Shunmugam  Pillai  (7). 

For  the    respondent  our  attention   was 
called  to  the  fact  that  in  the  written  state- 
ment of  the  3rd  defendant,  who  was  one  of 
the  Mangala  Vilas  people,  it  was  asserted  that 
these  properties  were  impartible  and  should 
descend  to  the  senior  member  of  the  senior 
line  according  to  the  custom  obtaining  in 
the  family  of  the  late  Rajah.    In  the  Saptur 
case  Ramasami  Kamaya  Naik  v.  Sundara- 
lingasami  Kamaya  Naik  (8)  it  was  made 
clear  that  the  son  of  a  legally  married  wife 
is  a  preferable  heir  to  impartible  property 
over  the  son  of  a  sword  wife  or  concubine. 
The  decisions  in  Trimbak  v.  Lakshman  (9) 
where  it  was  observed  that  religious  offices 
were   naturally     indivisible,    and    in   Sri 
Raman  Lalji  Maharaj  v.    Sri  Gopal  Lalji 
Maharaj  (10)  where  it  was  observed  that  if 
there  are   no  emoluments  attached    to  an 
office  of  trustee,  there  was  no  reason  to  parti- 
tion the  property  amongst  junior  members, 
were    also    cited.    Ramanathan    Chctty    v. 
Murugappa     Chetty    (2)  where    Bhashyam 
Ay  y  an  gar,  J  ,  observed  that  the  usage  and 
custom  in  respect    of  religious  trusteeships 
which  were    hereditary    in   a  family,  was 
generally  that  the  office  could  be  divided 
by  getting  the  duties  discharged  in  rotation 
by  each  member  of  the  family  and  that  the 
exceptions  to  that  rule  would  only  be  a  few 
cases  in  which  the  hereditary  office  may  be 
descendible  only  to    a  single  heir,  was  a 
case  of  family  partition   among  Chettiea  of 
Sivaganga,    It  was  not  alleged  in  that  case 
that  there  had  been  any  trace  of  imparti- 
bility  existing  in  the  family  prior  to  parti- 
tion.   In  appeal  in  Ramanathan   Chetti  v, 
Murugappa  Chetli  (3)    the  Judicial  Com- 
mittee confirmed  the  decree  of  this  High 
Court  which  provided  for  each  member  of 

(4)  4  Ind.  Gas,  76,  34  M.  470;£6  M.  L.  T.  319;  20  M. 
L,  J.  108 

(5)  43  Ind.  Caa  803;  41  M.  296;  7  L.  W.  22;  4  P  L. 
W.  91;  3i  M.  L.  J   130,    16  A,  L  J   113;   27  0.  L.  J 
231;  22  C,  W.  N.  457;    20  Bom    L   R  514;    451  A.I 
(P.  0.). 

(6)  59  Ind.  Gas,  161;  44  M  205;  12  L,  W.  232;  (1920) 
M.  W.  N.  507;  39  M.  L.  J,  403. 

(7)  2  Ind.  Oas.  341;  32  M.  167;  19  M.  L.  J.  59. 

(8)  17  M.  422;  6  Ind,  Deo,  (N.  s )  293. 

(9)  20  B.  495;  10  lad,  Deo.  (N.  s )  894, 

10)  19  A.  428;  A,  W.  N.  (1897)  103;  9  Ind.  Deo.  (N.  e.) 


87 


the  family  taking  one  turn  of  management 
in  succession,  the  grounds  oi  their  Lord- 
ship's decision  being   that   there   was  an 
unbroken  usage  evidencing  a  family  arrang- 
ment  in  this  particular  family  and  that  that 
arrangement  should  hold  good  until  altered 
by  the  Court  or  superseded  by  a  new  scheme. 
In  Meenakshi  Achi  v.  Somasundaram  Pillai 
(6)  the  Chief  Justice  and  Seshagiri  Ayyar, 
J  ,  observed  that  the  course  of  decisions  in 
this  Presidency,  which  had  the  approval  of 
the  Judicial  Committee,  was  opposed  to  the 
proposition  that  the  office  of  a  trustee  in  a 
public  institution  was  indivisible  and  re- 
gulated by  the   same  rules  as  the  succes- 
sion to  impartible  estates.    The  suit  related 
to  certain  kattalais  attached  to  a  temple  in 
the  Tan j ore  District,  and  the  learned  Judges 
held  that  a  claim   by  the  seniormost  male 
member  to  manage  alone  among  the  heirs 
should  be  proved  as  a  special  custom.  Prom 
the  history  of    the     case  it    appears  that 
these  kattalais    were   managed   for   some 
years  by    the  Board  of  Revenue  and  that 
they    restored    the    management  and  the 
enjoyment  of  the  lands  to  two  members  of 
the  family  representing  the  senior  and  the 
junior  branches.    In  such  a  case,  the usagfe 
of  the  institution  was  obviously  opposed  to 
the  principle    of     management  by  a  sole 
trustee.    In  Mayne's  Hindu  Law,  para.  43tf, 
it   is   stated    that  the   devolution    of  the 
trust  upon  the    death  or  default  of  each 
tru3tee  depends  upon  the  terms  upon  which 
it  was  created,  or  the  usage  of  each  par- 
ticular institution  where  ao  express  trust 
deed  exists. 

In  1863,  when  Government  restored  the 
management  of  these  temples  to  Kamakshi 
Bai,  it  was  thought  that  it  was  the  universal 
custom  of  the  country  that  the  eldest  male 
heir  of  a  deceased  trustee  should  succeed 
as  trustee  to  the  person  from  whom  he  in- 
herited :  see  Purappavanalingam  Chetti  v, 
Nullasivan  Chetti  (11).  And  in  the  Sivaganga 
case  Mutt u  Vaduganadha  Tevar  v.  Dora 
Singha  Tevar  (12)  the  Privy  Council  recogniz- 
ed the  principle  that  in  re- granting  an  im* 
partible  zemindai  i  and  issuing  a  sanad,  the* 
Government  could  retain  tho  quality  of 
impartibility  in  respect  of  any  of  the  pro- 
perty thereby  restored.  From  the  history  of 
these  institutions  described  in  Mr,  Venkoba- 
chariar's  judgment  in  0.  S.  No.  3  of  1894, 

(11)  1M  H.  C.R  415, 

(12)  3  M.  290;  8 1,  A.  99;  4  Sar,  P.  0.  J,  239    5  lad. 
Jur,  438;  1,  Ind,  Dtc.  (v,  s.)  757  (P,  C0» 


Ex.  A-197,  it    appears  that  the  Rajah  of 
Tanjore  founded  several  religious  institu- 
tions and  acquired  lands  and  gave  them  as 
endowments  to  temples,  that    the  pagodas 
were  managed    by   Serfoji    as  hereditaiy 
trustee  and  that  on  his  death  his  son  Sivaji 
succeeded  to  all  the  rights  and  privileges 
of  his  father  including  the  management  of 
the  pagodas.  I  am  of  opinion,  therefore,  that 
the  founders  of  these  institutioRS  intended 
that  their  successors  who  occupied  the  Raj 
should  continue  to  have  the  sole  manage- 
ment of  the  temples  and  pagodas  and  the 
endowments  attached  to  them.    It  follows, 
therefore,  that  to   divide  these  properties 
among  the  many  claimants  to  the  estate  of 
the  late  Sivaji  would  be  a  policy  inconsistent 
with  the  intentions  of  the  founder  of  the  in- 
fltitution  when  he  endowed  the  temples  with 
lands.    I  am  further  of  opinion  that  when 
Government    restored  these  properties    to 
Kamakshi  Bai  as  "head  of  the  family  for  the 
time  being/1  they  indicated  their  intention 
that  they  should  continue  to  be  managed 
by  a  sole  trustee.    If  it  were  necessary  for 
the  1st  defendant  to  prove  that  sole  trustee- 
ship is    an    incident    of  this    hereditaiy 
trust,  I  fljbwld  be  prepared  to  find  it  proved. 

In  this  view,  the  Subordinate  Judge  was 
right  in  recognizing  the  1st  defendant  as 
being  the  lawful  trustee  who  should  manage 
these  properties  for  his  lifetime  in  his 
capacity  of  head  of  the  family,  and  I  con- 
sider tlutt  the  appeal  should  be  dismissed 
so  far  as  these  properties  are  concerned. 

Next  as  regards  the  purchases  of  im- 
moveable  and  moveable  properties  made  by 
the 'widows  out  of  their  savings,  and  as 
regards  their  jewels,  it  must  be  remembered 
that  the  Ranis  were  only  receiving  a  small 
income  from  the  Mokhaea  estate  and 
pensions  of  Us.  800  a  month  sanctioned  by 
Government,  and  that  from  1867  till  the  dale 
of  suit  a  Receiver  was  in  charge  of  the 
estate.  Thus  the  present  is  not  an  instance 
of  a  widow  in  possession  of  her  husband's 
eatatemaking  acquisitions  out  of  income,  in 
whiob  case  the  Privy  Council  declared  in 
Nabakishors  Mandal  v.  Upendrakishore 
Mand&l  (13)  that  the  acquisitions  would  be- 
come accretions  to  the  husband's  estate 
tmlesa  it  were  shown  that  she  dealt  with  it 
in  such  a  manner  that  it  would  remain  her 


(13)  65  Ind.  Cas.  305;  42  M  L  J.  253,  20  A,  L  J  22- 
m)  M.  W.  2S.  95;  2(5  0.  W.  N  322;  55  C.  L.  J,  1161 
4  Bom.L,  E.  346;  15  L.  W.  417,  SO  M.  L,  T,  234-  3 
.  L,  T,  311;  A.  I.  B,  19»2  (P.  CU  39  (P,  0,), 


SAHEB  V.  SnVAJI  nAJA  SABEB.  [92  I.  0*  1926] 

own  [vide  also  Bhagbutti  Devi  v.  Bholanath 


Whether  the  after-purchases  form  accre- 
tions to  the  corpus  of  a  deceased  husband's 
estate  or  stridhanam  of  the  widow  depends 
upon  her  intention,  which  has  to  be  gather- 
ed in  every  case  fiom  her  manner  of  deal- 
ing with  the  property  [vide  Isri  Dutt  Koer 
v.  Han^butti  Koerain  (15;]  where  the 
authorities  are  reviewed,  and  later  cases  in 
Akkanna  y.  Venkaijya  (16)  and  Subrama- 
nian  Chetti  v.  Arunachelam  Chetti  (17)  and 
Sheolochun  Si-nghv  Sahib  Singh  (18). 

In  every  case  it  is  a  question  of  fact 
whether  a  widow  has  dealt  with  the  in- 
come of  her  husband's  property  in  such  a 
manner  as  to  make  it  an  accretion  to  the 
corpus  [vide  Rayah  of  Ramnad  v.  Sundara 
Pajidiyasami  Tevar  (19)  ] 

As  for  presumptions,  when  it  is  shown 
that  the  corpus  of  the  estate  has  been  all 
along  in  the  possession  of  a  Receiver  or  of 
the  Court  of  Wards  as  was  tho  case  in 
Saodannni  Dasi  v.  Administrator-General 
of  Bengal  (20)  ak}d  in  Zemindar  of  Bha- 
drachalum  and  P(*lavancha  v.  Venkatadri 
Appa  Rao  (21)  kjid  here,  there  ig  no 
room  for  presuming  that  the  widow 
intended  to  make  the  investments  of  the 
funds  received  by  her  part  of  her  husband's 
estate,  when  she  did  not  get  her  husband's 
estate  into  her  possession, 

As  for  item  No.  3  in  Sch.  D-l  which  ia 
an  acquisition  of  Anusamba  Bai  Saheba 
who  died  in  1895,  she  wrote  a  letter  A-lfcG 
to  the  Collector  announcing  her  intention 
to  create  a  trust  in  favour  of  the  adopted 
son's  son  and  received  a  reply  A-187  ac- 
knowledging her  letter. 

As  regards  jewels  of  Jijainba  Bai,  it  is 
stated  in  the  written  statements  of  defend- 
ants Nos.  1  and  2  that  they  were  pur- 

(14)  21  A    25G;1  0.    104,  24  W.    IMG8;  3  Sar.  l\ 
CJ.  J    52;  3  Suth.  P.  0.  J.  18G;  1  Ind.   Dec.  (N.S.)  65 
(P.O) 

(15)  10  C.  324;  10  I.  A,  150;   13  0.  L.  R.  418,  7  led. 
Jur  557;  4  Sar.    P.  C    J.   459,  5  Ind.  Dec,  (N.  e)  217 

(16)  25M  351;  12  M.  L.J.  5. 

(17)  28  M  1. 

(18)  141  A  63,  14  C  3*7;  11  Ind.  Jur.  231;  5  Sar,  P. 
0  J.  1;  7  Jnd  Dec  (N.  s.)  257  (P.  C.). 

(19)  49  Jnd  Cas.  704;  42  M.  581;    17  A.  L.  J.  153,  36 
M.  L  J.  164,  23  C.  W.  N  519,  29   C.  L  J.  551,  25  M.  L, 
T,  400;  21  Horn.  L.  R.  885;  (1919)  M,  W.  N.  511;  10  L, 
W.  322  'P.  C.). 

(20)  20  C.  433;  SO  I  A.  12,   6  Sar.  P,    C.  J    272;  17 
Ind  Jnr  223;  JOInd  Dec  (N.  s  )  293  (P.  O.). 

(21)  70  Ind  Cas.  689,  46  M  190;  (1922)  M.  W.  N,  532; 
16  L.  W.  369;  43  M.  L.  J.  486;  A,  L  R.  1922  Mad,  457 
31M.  LT.  2».  "  ' 


[92  L  0.  1926J  ATI8VPAKYANAHDAJ1  SAHBB  V.  SIWAJI  RAJA  SAHEB, 


phased  out  of  the  savings  from  her  own 
income,  and  there  being  no  evidence  contra, 
the  Subordinate  Judge  was  right  in  treating 
them  as  her  absolute  property. 

Lastly,  assuming  that  these  properties 
were  the  self-acquisitions  of  the  widows, 
the  appellants  claim  to  be  sapindas  and  to 
have  a  right  to  succeed  to  the  stridhanam 
of  widows  who  were  married  in  an  approv- 
ed form,  on  the  ground  that  it  goes  on 
their  deaths  without  issue  to  the  heirs  of 
their  husband. 

In  Subramania  Iyer  v.  Rathnavelu 
Chetty  (22)  it  was  held  by  a  Full  Bench  that 
the  illegitimate  son  of  a  sudra  ranked  as 
a  sapinda  of  his  putative  father,  and  that 
the  latter  was  entitled  to  succeed  to  his  pro- 
perty if  he  died  without  issue. 

But  the  Full  Bench  recognized  the  fact 
that  an  illegitimate  son  had  never  been  re- 
garded by  any  of  the  Courts  in  India  as  an 
heir  to  his  putative  father's  collateral  rela- 
tions, anc^  that  the  authorities  against  such 
a  proposition  were  very  strong  (see  page 
72j*.  I  am  not  satisfied  that  there  are  suffi- 
cient grounds  to  re- consider  that  statement 
of  the  law  as  it  now  stands,  The  reason 
for  giving  an  illegitimate  son  a  half  share 
of  what  a  legitimate  son  of  a  sudra  gets  is 
morally  justifiable  on  the  ground  that  he 
has  a  legal  right  to  be  maintained  by  his 
putative  father,  but  there  is  no  legal  obliga- 
tion to  maintain  illegitimate  children  of 
collaterals. 

The  result  is  that  the  appeal  of  the  Man- 
gala  Vilas  parties  in  this  suit  is  dismissed. 

The  costs  of  appellants  and  respondents 
Nos.  1  and  2,  so  far  as  the  appeal  relates 
to  the  devasthanam  estate,  will  be  payable 
out  of  the  income  of  the  devasthanam 
estate,  as  it  was  necessary  to  have  the  ques- 
tion of  devolution  of  the  trust  finally  settled, 
but  the  appeal,  so  far  as  accretions  and 
accumulations  are  concerned  is  dismissed 
with  costs  of  respondents  Nos.  1  and  2. 

The  memorandum  of  objections  is  also 
dismissed  with  costs  of  respondent  No  1 

Kumaraswami  Sastnl,  J.— This 
appeal  relates  to  the  devasthanam  known 
as  the  Fort  or  Palace  devasthanam  and 
the  endowments  'founded  by  the  Rajahs  of 
Tanjore  and  to  the  share  of  the  plaintiffs 
in  the  itnmoveable  properties  described  in 
the  plaint  which  were  purchased  and  enjoy- 
ed by  the  widows  of  Sivaji  Maharaja  who 
was  the  last  Rajah  of  Tanjore.  Claim  is 


983 


also  made  to  the  jewels  and  moveables  lef* 
by  the  Ranis. 

The  plaintiffs  and  the  3rd  and  4th  defead* 
ants  represent  the  illegitimate  branch  and 
the  1st  and  2nd  defendants  are  the  grand-* 
sons  of  the  late  Sivaji  Maharaja,  the  lafct 
ruler  of  Tanjore,  bfeing  the  sons  of  Serfoji 
who  was  adopted  by  Kamakshi  Bai  Saheba. 
The  other  defendants  are  alienees  from  one 
or  other  of  the  Ranis. 

The  plaintiffs  sued  for  the  trusteeship 
and  possession  of  the  devasthanam  proper- 
ties and  for  the  recovery  of  possession  of 
the  stridhanam  properties  leftbyLthe  widows 
on  the  ground  that  they  and  the  3rd  and 
4th  defendants  are  the  sons  of  the  sword 
wives  of  the  late  Rajah  and  for  a  declara- 
tion that  the  1st  and  2nd  defendants  have 
no  rights  as  the  adoption  of  their  father  is 
invalid,  that  the  alienations  by  the  widows 
in  favour  of  the  other  defendants  are  in- 
valid beyond  the  lifetime  of  the  widows 
and  that  the  plaintiffs  as  heirs  are  entitled 
to  succeed.  The  contesting  defendants 
denied  that  the  plaintiffs  and  the  3rd  and 
4th  defendants  have  any  right  as  the  sons 
of  sword  wives  to  the  derasthanam  and 
other  properties  and  stated  that  the  aliena- 
tions by  the  widows  could  not  be  question- 
ed or  set  aside  by  the  plaintiffs.  The  Sub- 
ordinate Judge  dismissed  the  plaintiffs' 
suit,  As  regards  the  devasthanam  proper- 
ties he  held  that  the  grant  by  the  Gov- 
ernment was  to  a  single  individual  or  sole 
trustee  and  there  can  be  no  claim  for 
participation.  It  would,  therefore,  pass  to 
the  head  of  the  family  for  the  time  being 
and  that  the  1st  defendant  as  the  senior 
representative  was  entitled  to  be  the  sole 
trustee.  As  regards  the  other  propertied 
he  held  that  the  properties  claimed  were 
the  stridhanam  properties  of  the  Ranis  and 
not  accretions  to  the  Raj  and  that  the 
plaintiffs  and  the  3rd  and  4th  defendantd 
were  not  the  heirs  to  the  stridhanam  pro- 
perties He  dismissed  the  plaintiffs*  suit 
and  hence  the  appeal. 

The  2nd  defendant  filed  a  memorandum 
of  objections  against  tjiat  portion  of  the 
decree  which  declared  that  the  1st  defend- 
ant was  entitled  to  be  the  sole  trustee, 
His  cise  is  that  he  is  entitled  along  with 
the  1st  defendant  to  be  the  trustee  of  the 
devasthanam  properties. 

We  have  held  in  the  appeals  which  relfcte 
to  the  private  properties  of  Sivaji  Mahara&fc 
that  the  plaintiffs  and  the  3rd  and  4th  fif. 
fenda&ts  formed  the  illegitimate  branch, 


034 


ATIS  WARY  AN  \NDAJ  I  8AHEB  V.  S1WAJI  RAM  SAJIEB, 


[92 1.  0. 1626} 


that  the  Tanjore  Rajahs  were  Sudraa  by 
caste  and  that  the  illegitimate  sons  and 
their  branch  of  the  family -who  are  known 
as  the  Mangala  Vilas  branch  were  only 
entitled  to  the  shares  which  the  illegitimate 
sons  of  a  sudra  would  take  in  their  father's 
properties.  We  also  held  that  the  adoption 
of  the  father  of  the  1st  and  2nd  defendants 
was  valid  and  that  the  1st  and  2nd  defend- 
ants as  the  adopted  sons  of  the  late  Rajah 
wereentitled  to  inherit  his  properties  and  we 
ordered  a  partition  of  the  private  properties 
between  the  legitimate  and  the  illegitimate 
branches.  In  disposing  of  this  appeal  it  is 
clear  that  the  claim  of  the  plaintiffs  in  the 
plaint  must  be  viewed  from  the  standpoint 
of  the  above  findings,  and  they  can  only 
get  such  rights  as  the  law  confers  on  the 
illegitimate  sons  of  a  sudra. 

The  questions  which  arise  for  determina- 
tion in  this  appeal  are — 

(1)  Whether  under  the  terms  of  the  grant 
by  the  Government  the  trusteeship* of  the 
devasthanam  properties     vests   in    all  the 
heirs  of  Si vaji  Maharaja,  the  last  Ruler  of 
Tanjore,     liko   ordinary  partible    property 
and  has  to  be  managad  by  turns  by  each 
of  such  branches  or  whether  it  vests  in  the 
senior  njale.flfiember  of  the  eldest  branch  of 
the  family,  for  the  time  being ; 

(2)  whfctJifJC  the  properties  acquired  by 
the  widows'  of  the   late   Sivaji  Maharaja 
were  accretions   to    the  estate   and  conse- 
quently divisible  between  such  persons  as 
would  be   entitled  to  a   partition    of  the 
estate  or  whether  they  were  the  stridhanam 
properties  of    the    widows  who  made  the 
acquisitions  and  are  descendible  to  the  stri- 
dhana  heirs;  and 

(3)  if  the  properties  are  stridhanam  pro- 
perties, whether  the  plaintiffs  and  the  3rd 
and  4th  defendants  would  be  entitled  to  a 
share. 

As  regards  the  trusteeship  of  the  devas- 
thanam  and  other  trust  properties,  I  am  of 
opinion  that  the  Subordinate  Judge  is 
right.  The  devasthanam  arid  other  eiklow- 
ments  were  taken  charge  of  by  the  Govern- 
ment along  with  the  Raj  and  the  private 
estate  of  the  last  Rajah  on  his  death.  .We 
have,  in  our  judgment,  in  the  appeals  from 
the  main  case  traced  the  course  of  events 
from  the  confiscation  of  the  Raj  to  the 
death  of  his  last  Rani.  Kamakshi  Bai 
Saheba,  the  senior  widow  and  Ranit  got 
possession  of  the  private  properties  of  the 
Rajah  under  the  tenneof  the  grant  (Ex.A-46), 
iated  the  2lst  August  1662, 


the  Government  for  the  restoration  to  her 
of  the  devasthanam  an,d  other  trust  pro- 
perties, and  the  Government  by  their  order, 
dated  the  19th  of  March  1S63,  put  her  in 
possession  of  such  properties.  From  1863 
to  1892  Kamakshi  Bai  Saheba  Hvas  manag- 
ing the  pioperties  as  the  sole  trustee,  and 
although  a  Receiver  was  appointed  in  1865 
in  the  litigation  between  Kamakshi  Bai 
Saheba  and  her  co-widows,  the  Receiver 
did  not  take  possession  of  the  devastkanam 
properties  and  Kamakshi  Bai  Saheba  was 
managing  them  es  the  solo  trustee.  On 
the  death  of  Kamakshi  Bai  Saheba  the 
Government  took  possession  of  the  trust 
properties  and  Umamba  Bai  Saheba  who 
was  then  the  senior  Rani  filed  Original 
Suit  No,  3  of  1894  against  the  Secretary 
of  State  and  the  members  of  the  devas* 
thanam  Committees  of  Tanjore  and  Kum- 
bakonam  and  the  other  surviving  Ranis 
for  a  declaration  of  her  right  to  succeed 
to  the  office  and  for  possession  of  the  pro- 
perties. The  Subordinate  Judge  in  an  ex- 
haustive judgment  decreed  ?n  favour  of 
the  plaintiff  and  the  judgment  had  been 
filed  as  Ex.  A-197  in  the  suit.  He  held 
that  on  a  construction  of  the  Govern- 
ment grant  of  1863  the  restoration  of  the 
management  of  the  pagoda  to  Kamakshi 
Bai  Saheba  carried  with  it  heritable  right 
and  that  the  right  was  transmissible  to  her 
heirs,  the  Government  having  no  light  to 
resume  or  interfere  with  the  management  of 
the  temple  after  the  death  of  Kamakehi 
Bai  Saheba.  He  was  also  of  opinion  that 
succession  to  the  management  should  b6 
traced  in  the  same  way  as  succeeeion  to  the 
impartible  Raj1,  that  on  the  death  of  Kam- 
akshi Bai  Saheba  the  right  did  not  vest 
jointly  in  the  surviving  widows  and  that 
the  plaintiff  as  the  senior  widow  was  entitl- 
ed to  succeed.  Against  this  judgment 
there  was  an  appeal  filed  to  the  High  Court 
which  is  reported  as  Kaliana  Sundaram 
Ayyar  v.  Umamba  Bayi  Saheba^  (23).  The 
decision  of  the  Subordinate  Judg^was  con- 
firmed and  it  was  held  by  Sh^pljard  and 
Davies,  J  J.,  that  the  estate  taken  bjr  Kamak* 
shi  Bai  Saheba  under  the  grant  w^s  in  the 
nature  of  self  acquired  property  in  Ihe 
Ranis  hands  in  the  sense  that  her  rights 
were  derived  from  Government  and  had  no 
relation  back  to  inheritance  on  the  death  of 
the  Rajah  and  that  as  she  asked  that  the 
management  should  be  put  in  her  hands  in 
(23)  $0  M.  4?l;  7  If  L,  J.  3&4j  7  lad,  De<?,  ft.  a<) 


[82  I.  0. 1926] 


AtlSWAETANANDAJI  8AHHB  ft  8IWAJI  RAJA  8AHBB. 


935 


the  capacity  as  the  head  of  the  family  for 
the  time  being,  the  inference  *  as  that  the 
intention  was  to  grant  a  widow's  estate,  that 
is,  to  put  Kamakshi   Bai    Saheba    in  the 
position  which  sKe  would  have  enjoyed  had 
there  been  no  confiscation  on  the    death  of 
her  husband  the  Rajah.    This  decision  does 
not,  however,  conclude  the    question  as  to 
whether  on  the  death  of  the  last  of  the  Ranis 
the  trusteeship  and  management  was  to  be 
in  the   senior   member  of   the  family  or 
whether  it  wa<3  to  be  treated  as  a  right 
which  should  be  enjoyed  by  all  the  mem- 
bers  who  were  to   divide  the   private  pro- 
perties of  the  Rajah.    So  far  as  the  terms  of 
the  grant  go,  the  Government   order  put- 
ting Kamakshi  Bai  Saheba  in  management 
of   the    devasthanam  properties    differs  in 
several  respects  from  the  grant  of  1862  and 
the  order  of  the  19th  of  March  1863  simply 
says  that  it  is  desirable  that  the  connection 
of    Government  with    the   pagodas  should 
cease  and  they  will  accordingly  be  made 
over  to  Her  Highness  Kamakshi  Bai  Saheba. 
In  dealing  with  the  question  of  manage- 
ment of  the  trust  property,  I  think  the  first 
question  to  be  considered  is    the   usage  as 
regards  the  management  prior  to  the  death 
of  Sivaji  Maharaja,  the  last  Ruler  of  Tanjore. 
There  can  be  little  doubt,  and  it  is  not  seri- 
ously contended  before  us  by  the  appellants, 
that  this  temple  and  the  charities  which  vvere 
founded  by  the  successive  Rajahs  of  Tanjore 
were  in  tha  possession  and  management  of 
the  Rajah  for  the  time  being    and  that  till 
the  death  of  Sivaji    the    office   was  always 
held  by  a  single  individual.    When  the  Raj 
was  seized  by  the  Government  as  an  act  of 
State,   the    pagodas  and  the    devasthanam' 
were  also  taken  possession  of  and  managed 
by  the  Government;  but  they  were  not  de- 
sirous of  taking  upon  themselves  the  res- 
ponsibility of  managing  the  temple  and  the 
devasthanam  properties.     The  Government 
at  one  time  /wanted  that  the  devasthanams 
should  bemadepver   to  Sikharam  Saheb, 
the  8on-in-l$w  of  Sivaji  Maharaja,  as  sole 
trustee.    Bakharam  Saheb  had  married  the 
elder  daughter  of  the  late  Maharaja  aid  on 
her  death  he  married  the  younger  daughter. 
As,  however,  Jhere  Were  ^  disputes  between 
SakharamSaUeb'oa  the  one  side  and  Kamak- 
shi Bai  Saheba  on  the  other,  this  proposal 
was  not  given  effect  to.  la  1^60  there  was  an 
idea  of  transferring  the  management  to  Avu 
Bai  Saheba,  the  late  Rajah's  mother  but  she 
was   not   willing   to   assume  management, 
^fter  Kamakshi  Bai  Saheba  ^ot  possession 


of  the  private  properties  of  the  Rajah,  she 
claimed  the  restoration  of  the  devasthanains 
and  theendowmentson  the  ground  that  they 
were  vested  in  her  husband  and  that  she 
was  the  then  head  of  the  family.  Her  request 
was  supported  by  the  Government  Agent 
and  the  outcome  of  it  was  the  order  of  1863 
transferring  the  management  to  her.  From 
1863  till  her  death  in  1892  she  was  the  sole 
trustee  aud  it  was  till  then  nobody's  con- 
tention that  the  office  of  trustee  could  par- 
take of  the  nature  of  private  property  and 
that  each  of  the  surviving  Ranis  was  to 
have  the  management  by  turns  and  although 
the  Receiver  took  possession  of  all  the 
private  properties,  the  trust  properties  weite' 
left  in  the  possession  and  management  of 
Kamakshi  Bai  Saheba.  On  her  death  the 
next  senior  Rani  was,  as  the  result  of  the 
suit  which  I  have  already  referred  to,  put  ift 
possession  and  management  a,tid  on  the 
death  of  each  senior  Ram  the  junior  succeed- 
ed. I  am  unable  to  find  anything  either 
in  the  Government  order  or  in  the  surround- 
ing circumstances  which  changed  the  usage 
prevailing  as  regards  these  institutions, 
namely,  the  management  by  a  single  indivi- 
dual who  was  the  head  of  the  family  for 
the  time  being  and  which  rendered  it  sub- 
ject to  all  the  incidents  of  partible  pro- 
perty. 

In  cases  of  religious  institutions  the  main 
question  to  be  considered  is  what  was  the 
usage  of  the  institutions;  and  where  from 
the  date  6f  the  foundation  of  these  charities 
up  to  the  date  of  the  present  suit  the  trust 
was  managed  by  a  single  individual  who 
was  the  head  of  the  family  not  in  possession 
of  any  partible  property,  I  think  it  would 
require  very  strong  evidence  to  show  that 
there  is  anything  in    the    grant    by    the 
Government  of  1862  which  introduced    a 
new  course  of  devolution  and  would  make 
it  subject  to  all  the   incidents  of  a  trustee- 
ship held  by   a   member   of  a   joint  and 
undivided  family.    As  I  said  before,  there 
is  nothing  in  the  grant  of  1862  which  either 
expressly  or  by   implication  changed    the 
usage  of  these  institutions.    They  formed 
part  of  the  Tanjore  JRa;  and  the  Rajah  for 
the  time  being  was^the  trustee.    As  regards 
the  private  properties  which  were  restored 
by  the  order  of  1883  there  are  express  words 
which  make  the  grant  subject  to  the  ordin- 
ary Hindu  Law  applicable  to  paitible  pro- 
perties aad  the  properties  were  to   descend 
according   to  Hindu  Law.    There  are  no 
si\ch  words  iutho  grant  of  the 


936 


SAHEB't',  SIWAJI  RAJA  8AHEB. 


properties  to  Kamakshi  Bai  Saheba.  The 
aevaethanams  having  been  part  of  the 
Tanjore  Raj  and  the  trusteeship  having 
devolved  on  the  Rajah  for  the  time  being, 
the  right  of  management  till  the  confisca- 
tion t>y  the  East  India  Company  must  be 
treated  as  impartible  property  and  the 
office  as  one  which  was  held  only  by  a 
single  individual, 

It  was  of  course  open  to  the  Government 
to  destroy  that  character  and  to  grant  the 
office  qn  such  terms  as  to  succession  as  it 
thought  fit.  The  confiscation  having  de- 
fitroyed  all  antecedent  rights  there  can  be 
no  question  of  any  vested  rights  as  to  suc- 
cession to  the  office.  I  am  unable  to  infer 
from  the  mere  fact  that  Kamakshi  Bai 
Saheba  applied  for  possession  of  the  de- 
vasthanfym  properties  as  senior  widow  and 
was  put  in  ppssession,  the  course  of  succes- 
sion to  the  office  changed.  Even  if  there 
was  no  confiscation,  the  office  vested  in  the 
senior  member  of  the  Rajah's  family.  In 
cases  of  confiscation  and  re-grant  of  pro- 
perty which  is  impartible,  the  law  is  that 
in  the  absence  Q£  anything  in  the  re-grant, 
the  property  which  is  re-granted  is  subject 
to  the  old  incident  of  impartiality.  In 
Baboo  RetT^fyrfab  Sahee  v.  Maharajah 
Rqjendw  Peff&£  §ahee  (24)  the  zemindar  i  of 
Hunsapore  which  was  an  impartible  Raj 
and  whiok  4$&dended  to  the  eldest  male 
heir  according  tp  the  rule  of  primogeniture 
waa  confitca^  by  the  East  India  Company 
and  w&s  ia  $ie  possession  of  the  Govern- 
ment for  some  years.  It  was  then  granted 
to  the  yo\*fifg$r  member  of  the  family  of  the 
deposed  Rajah.  It  was  held  that  although 
the  zetnindari  was  to  be  treated  as  the  self-  . 
acquired  property  of  the  grantee,  the  grant 
being  from  the  Ruling  Power,  in  the 
absence  of  evidence  of  the  intention  of  the 
grantors  to  the  contrary,  carried  the  incid- 
ents of  the  family  tenure  as  a  Raj.  In 
Muttu  Vyduganadha  Tevar  v.  Dora  Singha 
Tevar  (12)  the  Sivaganga  zemindari  which 
w&s  originally  impartible  was  confiscated  by 
the  Government  and  re-  gran  ted  and  it  was 
Ixeld  by  their  Lordships  of  the  Privy  Council 
that  the  re-grant  did  not  make  the  estate 
partible.  A  similar  view  was  also  taken  by 
their  Lordships  in  Ram  Nundun  Singh  v. 
Janki  Koer  (25)  where  it  was  held  that  the 
confiscation  and  re-  grant  of  an  impartible 

4)  12  M.  L  A.  1;  9  W.  R  P.  C.  15;   2  Suth.  P.  0.  J. 
f  2  Sar.  P.  C.  J.  348;  20  E.  R.  241, 
(25)  £9  0.  828;  29  1.  'A,  173;  7  0.  W,  N.  57;  4  Bom.  I*. 
;  8  S«r,  P,  0.  J/W1  (P.  0,) 


(2 
14f 


[9210.1926] 

Raj  to  the  various  members  of  the  family 
did  not  make  the  property  re-granted  parti- 
ble. The  mere  fact  that  there  was  a  ire- 
grant  would  not,  in  my  opinion,  "destroy  the 
course  of  devolution  followed  till  that  date. 

Great  reliance  was  placedjby;  Mr  ^Krishna- 
swami  Ayyar  for  the  appellants  on  the 
decision  reported  as  Ramanathan  Chetty 
v.  Murugappa  Chetty,  (2)  which  Was  affirmed 
by  their  Lordships  of  the  Privy  Conncil  in 
Ramanathan  Cketty  v.  Murugappa  Chetty  (3). 
In  that  case  the  question  was  as  to  the  valid- 
ity of  an  arrangement  come  to  by  the  mem- 
bers of  an  undivided  family  regarding  the 
management  by  turns  of  a  devasthanam 
which  was  hereditary  in  the  family.  l*he 
question  turned  upon  the  usage  as  regards 
the  management,  and  Benson  and  Bhaahyam 
Ayyangar,  JJ.,  in  the  course  of  their  judg- 
mant,  observe:  "Except  in  the  few  cases 
in  which  the  hereditary  office  may  be 
descendible  only  to  a  single  heir,  the 
usage  and  custom  generally  is  that  along 
with  other  properties  the  office  also 
is  divided  in  the  sense  that  the  offic^  is 
agreed  to  be  held  and  the  duties  thereof 
discharged  in  rotation  by  each  member  or 
branch  of  the  family,  the  duration  df  their 
turns  being  in  proportion  to  their  shares 
in  the  family  property.1'  Their  Lordships 
of  the  Privy  Council  rest  their  decision 
on  the  usage  as  regards  the  trusteeship. 
Lord  Macnagliten  in  delivering  judgment 
of  their  Lordships  observes  as  follows  :— 
"In  their  Lordships'  opinion  the  case  is  a 
very  simple  one.  They  think  the  unbroken 
usage  for  a  period  of  nineteen  years  is  as 
against  the  appellant  conclusive  evidence  of 
a  family  arrangement  to  which  the  Court 
is  bound  to  give  effect."  It  13  on  this 
sole  ground  that  they  held  that  there  was 
nothing  improper  in  the  arrangement. 

There  can  be  little  doubt  thattheHindu 
text- writers  treated  a  trusteeship  or  a  right 
to  the  management  of  religious  or  charitable 
endowments  ag  impartible  property.  Iti 
Mancharam  v.  Pranshankar  (26)  it  wa£ 
pointed  out  that  the  management  of  reli- 
gious endowments  is  indivisible  though 
modern  custom  has  sanctioned  a  departure 
by  allowing  the  parties  entitled  to  officiate 
by  turns.  This  decision  was  followed  in 
Trimbak  v.  Lakshman  (9).  The  inconveni 
ence  of  such  a  custom  was  also  pointed  out. 
Candy  and  Ranade,  JJ.,  observed:  ''It  is 
clear  that  if  the  present  claim  of  the  appei- 

(26)  6  R  298;  Q  Ju4,  Jur,   420;   3  fed.  Pec,  (N  *) 


(82 1.  0. 1926J 

lant  were  recognized,  each  of  the  sons  of  the 
parties—and  they  have  many — might  claim 
a  share,  not  only  in  the  family  share,  but  in 
the  devasthan  share  and  office  also,  and 
this  process  might  go  on  with  each  genera- 
tion, frittering  away  the  income,  and  mak- 
ing the  service  wholly  ineffective.  The 
lower  Court  appears  to  have  assumed,  with- 
out any  such  evidence  as  is  suggested  in 
Mohunt  Kumun  Dass  v.  Mohunt  Asfibul  Dass 
(27)  that  the  office  is  partible  with  the 
income.  The  practice  of  many  generations 
of  the  parties  must  be  considered  in  settling 
the  questions  of  impartiality,  and  that 
practice  is  in  this  case  against  partition 
with  the  one  single  exception  of  what  took 
place  in  1838."  This  case  was  cited  with 
approval  by  their  Lordships  of  the  Privy 
Council  in  Sethuramaswamiar  v.  Mem- 
swamiar  (5). 

Whereimpartibility  and  management  by 
a  single  individual  who  was  the  eldest 
member  of  the  eldest  branch  of  the  family 
haa  been  the  rule  from  the  foundation  of 
the  trust  till  the  date  of  the  present  suit, 
I  find  nothing  either  in  Kamanathan 
Chetty  v.  Murugappa  Chetty  (2)  or  Rama- 
natkanChettiv.  Murugappa  Chetti^  (3)  which 
compels  us  to  hold  that  the  office  should 
be  treated  as  partible  property  and  that  on 
partition  of  the  other  propeities  of  the  fami- 
ly, this  office  should  be  held  by  turns.  I  may 
also  point  out  that,  having  regard  to  the 
numerous  descendants  of  the  late  Rajah 
who  would,  if  the  offke  is  held  to  be  par- 
tible, be  entitled  to  turns  of  management 
and  having  regard  also  to  the  future  growth 
of  the  family,  it  would  be  against  the  in- 
terests of  the  trust  to  give  the  numeious 
parties  turns  of  management  and  I  am 
not  prepared  to  do  so  unless  compelled 
either  by  the  established  usage  of  the  in- 
stitution or  the  terms  of  the  re-grant  by  the 
Government.  I  think  the  proper  rule  in 
such  cases  is  to  see  whether  there  is  any 
deed  constituting  the  trust  and  regulating 
the  course  of  devolution  of  the  trust.  If 
there  is  such  a  document,  then  the  devolu- 
tion will,  of  course,  be  regulated  by  the 
terms  of  the  document  constituting  the  trust. 
If  there  is  no  such  document,  the  Court  has 
to  see  what  was  the  usage  of  the  institution 
and  to  give  effect  to  such  usage.  Where 
there  \p  no  uniform  course  of  conduct,  the 
interests  of  the  institution  should  be  the 
first  consideration.  If  the  management  can, 

(27)  1  W.  R,  160. 


AYISWARYANANDAJI  SAHEB  3,  SIWAJI  RAJA  SAHEB, 


without  detriment  to  the  trust,  be  held  by 
turns,  it  is  open  to  the  Court  to  decree 
management  by  turns.  I  have  not  been 
referred  to  any  te&ts  which  state  that  the 
office  of  dharmakartha  or  trustee  of  a 
religious  or  charitable  endowment  is  to  be 
treated  as  joint  property  on  partition  and 
that  turns  have  to  be  given  to  each  member 
of  the  undivided  family  who  gets  a  share  in 
the  partition  irrespective  of  the  interests  of 
the  charities.  I  do  not  find  anything  in  the 
decision  of  their  Lordships  of  the  Privy 
Council  inRamanathanChethi  v.  Maruqappa 
Chetti  (3)  to  warrant  the  rule  that  even  in 
the  case  of  public  charities  and  trusts  the 
claims  of  the  dividing  co-paiCenerd  should 
override  the  interests  of  the  institution  and 
the  observation  of  their  Lordships  in 
Sathuramaswamiar  v.  Mentswamiar  (5) 
rather  suggests  that  the  rule  laid  down  as  to 
turns  of  management  on  partition  applies 
only  to  private  charities. 

I  find  it  difficult  to  accept  the  argument 
of  Mr.  Venkatachanar  for  the  2nd  defend- 
ant that  the  management  should  be  confin- 
ed to  the  1st  and  2nd  defendants  by  turns 
to  the  exclusion  of  the  illegitimate  sons 
Either  the  office  is  impartible  and  descends 
on  the  eldest  member  of  the  senior  line  or 
it  should  be  treated  as  partible  and  turns 
given  to  all  those  who  are  entitled  to  share 
in  the  family  properties.  There  is  no  prin- 
ciple on  which  the  office  can  be  confined  to 
the  1st  and  2nd  defendants  to  the  exclusion 
of  the  Mangala  Vilas  branch 

As  regaids  the  piopeities  left  by  the 
last  Ham  in  respect  of  which  partition  is 
claimed,  1  do  not  think  the  plaintiffs  are 
entitled  to  any  share.  I  do  not  think  that 
the  properties  acquired  by  the  Rams  can 
be  said  to  be  accretions  to  their  husbands1 
estate  and  to  devolve  upon  the  persons  who 
would  be  entitled  as  reversioners  to  their 
property.  From  the  year  1866  up  till  the 
date  of  this  suit  there  was  a  Receiver  in 
charge  of  the  estate  and  none  of  the  widows 
were  in  possession  or  management.  1  have, 
in  my  judgment,  in  the  suit  relating  to  the 
private  properties  of  the  late  Rajah  given 
my  leasons  for  holding  that  the  estate  was 
not  strictly  a  Hindu  widow's  estate  but  that 
the  grant  by  the  Government  was  on  terms 
which  were  analogous  to  it  It  was  held  in 
Jijoyiamha  Bayi  Saiba  \  Kamakshi  Bayi 
Saiba  (28)  that  whatever  right  the  widows 
would  have  enjoyed  had  they  succeeded 
to  the  estate  of  the  late  of  Rajah  under 

(28)  3M.  H,0,R,424. 


938 


AYISWARYANANDAJI  8AHBB  V.  8TWAJI  RAJA  8AHBB. 


Hindu  Law  were  destroyed  by  the  grant 
of  1862  which  was  to  be  regarded  as 
the  root  of  title.  Each  Rani  got  about 
Rs.  9,600  a  year  as  pension  from  the  Govern- 
ment. The  widows  had  their  own  proper- 
ties and  had  also  jewels  and  there  i«  noth- 
ing to  show  that  the  properties  now  claimed 
were  acquired  with  the  income  of  the  estate 
lelt  by  their  husbands  and  not  with  the 
savings  from  their  pensions  or  dealings 
with  their  own  stridhanam  properties.  Be- 
fore the  plaintiffs  can  claim  the  properties 
as  accretions  to  the  husbands*  estate,  they 
must  show  that  the  properties  were  pur- 
chased out  of  the  income  of  the  estate  or 
out  of  the  savings  therefrom.  There  is  no 
evidence  that  the  acquisitions  by  the  Ranis 
were  treated  as  part  of  their  husbands1 
estate  or  mixed  up  with  it,  but  on  the 
contrary  we  find  that  the  Ranis  were  anxious 
to  dispose  of  the  properties  which  they  had 
acquired.  It  is  difficult  to  see  how  there  can 
be  said  to  beany  accretions  to  the  estate  left 
by  their  husbands. 

So  far  as  this  Presidency  is  concerned,  the 
authorities  are  to  the  effect  that  there  is  no 
presumption  that  property  acquired  by  a 
Hindu  widow  out  of  funds  which  were  at 
her  absolute  disposal  would  form  part  of 
her  husband's  estate.  I  have  dealt  with 
this  questitfii in  Zamindar  of  Bhadrachalam 
&  Palav&neha '  v.  Venkatadri  Appa  Rao 
(21).  In  Rajah  of  Ramnad  v.  Sundara 
Pandiyasami  Tevar  (19)  their  Lordships  of 
the  -Privy  Council  observe  :  'Their  Lord- 
ships think  the  answer  to  this  is  that  a 
widow  may  so  deal  with  the  income  of  her 
husband's  estate  as  to  make  it  an  accretion 
to  the  corpus.  It  may  be  that  the  presump- 
tion is  the  other  wa}»  A  case  has  been 
cited  to  their  Lordships  which  seems  so  to 
say.  But  at  the  outside  it  is  a  presumption 
and  it  is  a  question  of  fact  to  be  determin- 
ed, if  there  is  any  dispute,  whether  a 
widow  has  or  has  not  so  dealt  with  her  pro- 
perty.1' The  case  referred  to  seems  to  be 
Akkanna  y.  Venkayya  (i6)  which  was  re- 
ferred to  in  the  course  of  the  argument  by 
Mr.  l)e  Gruyther. 

It  is  argued  by  Mr.  Krishnaswami  Ayyar 
that  the  decision  of  the  Privy  Council  in 
Nobakishore  Mandal  v.  Upendrakishort 
Mandal  (13)  has  settled  the  question  which 
was  left  in  doubt  in  Rajah  of  Ramnad 
v.  Sundara  Pandiyasami  Teiar  (i9).  There 
is  an  observation  of  their  Lordships  at 
page  256  to  the  following  effect :  "Now 
" ' '  '  "" 


[92  I.  0. 1926J 

there  can,  their  Lordships  think,  be  no 
doubt  that  whatever  stfidhan  she  possessed 
was  due  to  the  accumulated  savings  from 
the  income  of  the  property  which  she  receiv- 
ed from  her  husband's  estate,  and  though 
it  is  true  that  when  that  property  had  been 
received  it  would  be  possible  for  her  so  to 
deal  with  it  that  it  would  remain  hefr  own, 
yet  it  must  be  traced  and  shown  to.  have 
been  so  dealt  with,  and  in  this  case  there  is 
no  sufficient  evidence  of  this  having  been 
done/'  It  is  argued  that  the  effect  of  this 
observation  is  that  the  onus  is  on  the  other 
side  to  show  that  she  did  something  which 
would  indicate  an  intention  of  treating  the 
accietions  as  her  own  and  not  as  part  of 
her  husband's  estate.  The  previous  deci- 
sions of  the  Privy  Council  are  not  referred 
to  by  their  Lordships  and  I  do  not  think 
this  case  can  be  said  to  overrule'  all  the 
previous  decisions  of  their  Lordships  on 
the  subject. 

I  am  of  opinion  that  the  decision  in 
Saodamini  Dasi  v.  Administrator-General 
of  Bengal  (20)  is  clear  authority  for  the 
view  that  where  a  widow  is  not  in  possession 
of  her  husband's  estate  there  can  he  no 
question  of  any  purchase  made  by  her 
being  an  accretion  to  her  husband's  estate. 
Their  Lordships  of  the  Privy  Council 
observe:  "The  appellant's  Counsel  con- 
tended that  the  savings  of  a  Hindu  widow 
must  be  presumed  to  have  been  made  for 
the  benefit  of  her  husband's  estate.  Without 
examining  the  precise  result  of  the  decisions, 
it  is  sufficient  to  say  that  in  this  case  there 
is  no  room  for  any  such  presumption,  for 
the  corpus  of  the  estate  never  came  to  the 
widow,  but  was  taken  by  Shamcharan 
Mullick  under  the  Will,  and  the  income  to 
which  the  widow  succeeded  was  separated 
from  it,  and  became  and  was  dealt  with  as 
an  entirely  separate  fund. ' 

I  think  the  result  of  the  authorities  may 
be  summed  up  as  follows: — A  Hindu  widow 
has  an  absolute  right  of  disposal  over  the 
income  of  the  property  which  she  inherits 
from  her  husband.  She  -can  eithe?  spend 
the  same  or  accumulate " it  for  her  own 
benefit.  In  cases  where  she  purchases 
properties  or  invests  her  sayings  ajid  in- 
dicates by  her  conduct  an  intention  that 
the  properties  purchased  out  of  her  savings 
should  form  part  of  her  husband's*estatef 
such  savings  should  follow  the  same  rules 
as  regards  devolution  to  her  husband's 
estate  and  should  be  treated  as  accretions 
to  Uje  estate.  Where  sfce  dops  apt  do  so, 


ATI8WARYANANDAJI  SAHBB  V.  SIWAJI  SAJA  SAHBB. 


[92  L  0. 1926] 

fche  has  absolute  powers  of  disposal  over 
such  property  and  can  sell  or  give  the 
same  to  anybody  she  pleases  without  any 
right  of  the  re-versioners  to  question  her 
alienations.  Where  the  qtiestion  is  one  of 
intention  to  be  deduced  or  inferred 
from  her  conduct,  the  presumption  is  that 
she  intends  to  keep  the  property  for  her 
own  absolute  benefit  and  to  have  absolute 
powers  of  disposal  over  it.  Where,  however, 
a  widow  is  not  in  possession  of  her  husband's 
estate,  there  is  no  presumption  that  any 
of  the  properties  which  she  gets  are  to  be 
treated  as  accretions  lo  her  husband's 
estate  nor  can  an  intention  be  inferred  that 
she  wants  to  treat  them  as  part  of  her 
husband's  estate  On  her  death  such  proper- 
ties would  follow  the  same  course  of  succes- 
sion as  her  stridhanam  properties. 

The  claim  in  this  appeal  relates  to  the 
properties  left  by  (I)  TTmamba  Bai  Saheba 
who  died  on  the  4th  of  P  July  1900  possess- 
ed of  items  Nos.  1  and  2  in  Sch.  D4  to  the 
plaint,  (2)  Anusamba  Bai  Saheba,  who  died 
on  the  3 Oth  September  1895  having  item  No. 
3  iu[  Sch.  D-  land  (3)  Jijamba  Bai  Saheba  the 
last  surviving  widow.  It  is  alleged  that  the 
properties ;  in  Sch.  E  to  the  plaint  were 
left  by  Jijamba  Bai  Saheba. 

As  regards  item  No.  3  in  Sch.  D-l  which 
is  the  acquisition  of  Anusamba  Bai  Saheba, 
the  evidence  is  that  on  her  death  Serfoji 
got  possession  of  the  property  and  after  him 
his  son,  the  1st  defendant,  got  possession. 
She  also  wrote  to  the  Government  Agent 
that  she  wanted  to  give  the  property  to  the 
adopted  eon  and  she  made  a  settlement. 
The  evidence,  oral  and  documentary,  shows 
that  on  her  death  in  1895  Serfoji  got  into 
possession  in  accordance  with  the  settle- 
ment made  by  Anusamba  Bai  Saheba,  The 
claim  to  item  No.  3  by  the  present  plaintiffs 
is,  therefore,  clearly  barred ^by  limitation, 
even  assuming  that  the  plaintiffs  are  her 
heirs. 

As  regards  the  properties  of  Jijamba  Bai 
Salieba,  the  last  Rani,  she  has  left  a  Will 
disposing  of  her  properties  and  it  follows 
that  the  plaintiffs  can  have  no  claim,  she, 
in  my  opinion,  haying  had  full  disposing 
power  over  the  savings  from  her  husband's 
estate,  her  pension,  and  her  own  stridhanam 
jewels. 

As  regards  properties  left  by  Umamba 
Bai  Saheba,  she  died  in  1900  and  Jijamba 
Bai  Saheba  took  possession  of  her  proper* 
ties.  She  claimed  to  be  the  heir  of 
Umapiba  JJai  Safceba  and  it  does  not  appear 


939 


that  she  claimed  anything  more  than  a 
co-widow's  right  to  succeed.  It  is  now 
settled  law  that  there  is  no  distinction  as 
to  the  nature  of  the  estate  taken  between 
propei ty  inherited  by  a  woman  from  a  male 
and  property  inherited  from  a  female.  In 
both  the  cases  she  takes  not  an  absolute 
estate  but  only  a  qualified  one.  I  need  only 
refer  to  Venkataramakrishna  Ran  v.  Bhu- 
]anga  Kau  (29),  Virasangappa  Slietti  v. 
Rudrappa  Shetti  (30),  and  to  the  decision 
of  their  Lordships  of  the  Privy  Council  in 
Shea  tihankar  Lai  v.  Debi  Sahai  (31)  and 
Sheo  Partab  Bahadur  Singh  v.  Allahabad 
Bank  (32).  This  being  so,  it  follows  fipm 
the  decision  of  their  Lordships  of  the  Privy 
Council  in  Lajwanti  v.  Safe  Chand  (33) 
that  a  suit  which  is  filed  within  twelve  years 
of  Jijamba  Bai  Saheba's  death  would  not 
be  barred.  As  Umamba  Bai  Saheba  did 
not  make  any  disposition  of  the  properties, 
the  question  is  who  are  the  heirs  to  the 
properties  left  by  her  at  the  time  of  her 
death  which  were  in  the  possession  of  her 
co-\udow  Jijainba  Bai  Saheba.  The  plaint- 
tiffs  belonging  to  the  illegitimate  branch 
and  being  the  descendants  of  the  last  Rajah 
in  existence,  the  question  is  whether  under 
Hindu  Law  they  can  succeed  to  the  estate 
of  the  Ranis,and  this  turns  on  the  question 
whether  in  the  case  of  svdras  the  illegiti- 
mate sons  have  got  any  right  to  collateral 
succession. 

It  is  argued  by  Mr  Krishnaswami  Ayyar 
that  in  the  absence  of  son,  daughter  and 
daughter's  son  the  stridhanam  property  goes 
to  the  husband  and  his  heirs,  and  that  if  you 
come  to  the  point  where  there  are  no  such 
heirs  as  above-named,  you  have  to  make  no 
difference  between  the  husband's  property 
and  the  stridhanam  property  of  the  wife 
and  all  her  husband's  heirs  will  be  entitled 
to  succeed.  He,  therefore,  argues  that  even 
if  the  property  left  by  Umamba  Bai  Saheba 
who  died  issueless  was  her  stridhanam 

(29)  19  M,  107,  6  M.  L.  J  16;  6  Ind  Dec.  (N.  a ) 
780 

(30)  19  M.  110,  6  M,  L.  J.  3,  6  Ind.  Dec  (sf  s) 
782. 

(31)  25  A,  468,  7  0  W.  N  831,  5  Bom.  L  R.  828; 
13  M.  L,  J.  330,  30 1.  A.  202,  8  Sar  P  0  J  465 
(P.  0 ), 

(32)  25  A  476;  7  0.  W.  N  840,  13  M  L  J.  336,  5 
Bom.  L.  R.  883,  30  I  A.  209,  8  Sar  P  0.  J.  535 
(P  0). 

(33)  80  Ind.  Cas.  788,  51 1  A  171,  22  A  L.  J  304; 
A.  1  R.  1924  (P.  0.)  121,  5  L  192;  (1924)  M  W  N.  442; 
20  L  W.  10,  2  Pat.  L.  R  245;  28  C  W  N.  960;  26  Bom. 
L  R.  1117;  47  M.  L.  J.  935,  6  P,  L.  T,  1;  L,  R.  5  A 
(P.  0.)  94  (I\  0,), 


SRIPATI  DUTTA  V.  BIBHDTI  BHUSAN  DUTTA, 


property,  succession  must  be  traced  as  if  it 
was  the  property  of  her  husband  and  as  the 
illegitimate  sons  would  succeed  along  with 
the    legitimate  sons  to  the   properties    of 
their  father,  they  would  also  succeed  to  the 
stridhanam  properties  in  the  same  propor- 
tion.    Reference    has    been  made  to    the 
decision   of  their  Lordships  of  the  Privy 
Council  in  BaiKesserbai  v.Hunsraj  Mirarji 
(34),  where  their  Lordships  refer  to  Mitak- 
shara,  Mayukha  and  the  texts  of  Brihas- 
pathi  as  regards  succession  to  stridhanam 
properties    and  hold    that  in  the  case    of 
approved    forms    of    marriage   the    heirs 
enumerated  by  Brihaspathi  who  are   blood 
relations  of   the  husband    would  succeed 
to    the  woman's    property.      Reference    is 
also    made  to    Mary  a  Pillai  v     Simbagya- 
thachi  (35),    where  it    was  held    that   the 
stridhanam  property  of   a  woman    married 
according  to    the  approved  form  who  has 
left  no  issue  will  devolve  on  her  husband 
and  on  failure  of  the  husband  the  property 
will  go  to  his  sapindas  in  the  order  laid 
down  in  Mitakshara  with  reference  to  the 
succession  to  the  property  of  a  male  and  to 
Kanakawmal  v,  Ananthamathi  Ammal  (36), 
where  a  similar  rule    has  been  laid  down. 
Were  the  matter  res  Integra,  1  am  disposed 
to    hold  that    in    the    case    of    sudras  an 
illegitimate  son  is  in  the  same  position  as 
a  legitimate  son  except  that  he  gets  a  lesser 
share.    The  fact  that   an  illegitimate  son 
gets  a    lesser  share    would    not   by  itself 
create  a  bar  to  collateral   succession  any 
more  than  the  fact  that  an  adopted  son  who 
exists  along  with  a  natural  son  born  subse- 
quently and   who  gets  a  lesser  share  would 
be  barred.    But  there  is  a  long  catena  of 
cases  beginning  with    Nissar  Murtojah  v. 
Kowar  Dhunwunt  Roy    (37)    which  decide 
that  an  illegitimate  son  has  no  right  to 
collateral  succession.    I  have  in  Subramania 
Iyer  v.   Rathnavelu  Chetty  ("22)    referred  to 
all  the  authorities  and  dealt  fully   with  the 
illegitimate  son's  rights  and  as  regards   the 
position  of  an  illegitimate  son  to  collateral 
succession,      The  right  was  negatived  in 
Krishnayyan  v.  Muttusami  (,38),  Ranoji   v. 


(31)  30  B.  431;  10  0  W  N  802,  4  0  L  J  0,  8  Bom. 
L.R416.SA.L  J  481;  1ML  T,  211,  16  M.  L  J. 
446,331.  A  176  (P  0  ). 

(33)  12  Ind.  Gas.  128,  30  M  116,  (1911)  2  M.  W  N. 
168;  21  M.  L.  J.  850,  10  M.  L.  T,  494. 

(36)  25  lad.  Cas.  901;  37  M.  293. 

(37)  Marsh.  609 

(38)  7  M,  407;  8  Ind,  Jur,  427;  2  Ind.  Dec.   (N,  B.) 
07. 


[92  L  0. 1S26] 

Kandoji  (39),  Pravathi  v.  Thirumalai  (40), 
Shome  Shankar  Rayendra  Varere  v.  Rajesar 
Swami  Jangam  (41),  Ramalinga  IHllai  v. 
Pavadai  Goundan  (42),  Meenakshi  v.  Muni- 
artdi  Panikkan  (43),  Dharma  Lakshman  v. 
SakharamRamjiras(M)  andZiprw  Chindhu 
v.  Bomtya  (45).  The  plaintiffs  are  not 
entitled  to  Umamba  Bai  Saheba's  property 
as  heirs  under  Hindu  Law. 

The  appeal  fails  and  is  dismissed.  The 
memo  rand  urn  of  objections  is  also  dismissed. 
I  agree  to  the  order  as  to  costs  proposed  by 
my  learned  brother. 

This  appeal  having  been  posted  to  be 
spoken  to  this  day  on  the  question  of  costs 
allowed  to  the  Jst  respondent  on  the 
memorandum  of  objections  filed  by  the  2nd 
respondent,  the  Court  made  the  following 

ORDER. — In  modification  of  our  origin- 
al order  we  direct  that  the  1st  respondent 
do  get  his  costs  of  the  memorandum  of 
objections  out  of  the  devasthanam  estate 
and  the  2nd  respondent  will  bear  his  own 
costs  in  his  memorandum  of  objections. 

v.  N.  v. 

z  K,  Appeal  dismissed. 

(39)  8  M  557,  3  Ind.  Dec  (N  s )  382 

(40)  10  M.  334,  3  Ind  Dec  (N  s  j  986 

^(41)  21  A    99,  A.  W  N  (1898)  170,  9  Ind  Dec.  (N.  s.) 

(42)  23  M  519,  11  M  L   J  391) 

^43)  25  Ind  Cas.  957,  38  M    1144;  1  L.  W  704,  (1914) 

M  W  N   672, 16  M  L  T  270,  27  M  L  J  353 

(41)  55  tod  Cas  306,44  B  185,  22  Bom  L  R.  52. 
M5)  G41nd  Cas  975,  46  B   424;  23  Bom.  L.  R.  1195; 

A,  J   R.  ]&22Bom   176 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  ORDRK  No.  262  OF  1925. 

July  28,  1925. 

Present;— Justice  Sir  Babington 
Newbould,  KT  ,  and  Mr.  Justice  Graham. 

SRIPATI  DUTTA  AND  OTHERS- 
DEFENDANTS  Nos.  1  TO  5— APPELLANTS 

versus 

BIBHUTI  BHUSAN  DUTTA  AND  OTHERS 

— PLAINTIFFS—DEFENDANTS  Nos.  6  ANC  7 

— RESPONDENTS, 

Civil  Procedure.  Code  (Act  V  of  1908),  0.  XL,  rr.  ], 
4,  0  XL1IJ,  r  I  (B)— General  Clauses  Act  (X  of 
1S97),  s,  16— Order  removing  Receiver —Appeal,  if 
lies — 'Any  person1,  meaning  of— Receiver,  when  can  be 
removed — Judicial  discretion — Party ,  when  can  be 
appointed— Consent  of  parties. 

An  appeal  lies  against  an  order  removing  a  Receiver. 
The  order  is  final  and  appealable  even  though  selec- 
tion of  the  successor  has  not  been  made,  [p,  942, 
col  2.]  ^ 


[92  L  0. 1926] 

Upendra  Nath  Nag  Chowdhry  v  Bhupe-ndra  Nath 
Nag  Chowdhry,  9  Ind  Cas.  5b2  13  0  L  J,  157,  dis- 
tinguished, 

Palamappa  Chetty  v.  Palamappa  Chetty,  40  Ind 
Gas  185  40  M  18,  32  M  L  J  304,  (1917)  M  W  N  303, 
5  L.  W  776,  referred  to 

The  words  'any  person1  in  O  XL,  r  1  (6),  C  P  G  , 
refer  to  peisons  inteiested  in  the  piopt'ity  and  m 
possession  01  custody  of  it  piioi  to  the  passing  of  an 
order  appointing  a  Receiver  [p  911,  col  2] 

The  selection  and  appointment  of  aparticulai  peison 
as  a  Receiver  is  a  mattoi  of  judicial  discretion  to  be 
determined  by  the  Gouit  accoiding  to  the  circum- 
stances of  the  case  [p  912,  col  2  ] 

It  is  a  settled  rule  that  one  of  the  parties  to  n  cause 
should  not  be  appointed  Receiver  without  the  consent 
of  the  other  parties  unless  a,  very  special  case  is  made 
out  [p.  943,  col  1  ] 

Kah  Kuman  v  Bachhan  Singh,  19  Ind,  Cas  873,  17 
0.  W  N  074,  refeiiedto. 

Oa  an  application  for  the  removal  of  a  Receivei , 
the  Gourt  should  properly  consider  his  past 
relations  to  the  parties  as  well  as  his  pret-ent 
sympathies  If  by  reason  of  mteiest  shoun  by  the 
Receiver  as  an  officer  of  the  Court  his  efficiency  is  im- 
paired the  Court  will  be  justified  in  removing  him 
[p.  943,  col.  2  ] 

Appeal  against  an  order  of  the  Subordi- 
nate Judge,  Burdwan,  dated  the  1st  June 
1925. 

Dr.  Dwarka  Nath  Mitter,  Mr  Debendra 
Nath  Mondal  and  Babu  Narayan  Chandra 
Kar,  for  the  Appellants. 

BirProvash  Chandra  Mitter,  Messrs  Sarat 
Chandra  Roij  Choudhury,  S.  B.  Sinha  (with 
him  Babus  Suresh  Chandra  Talukdar,  Mo- 
hendra  Kumar  Ghose  and  Babu  Dwiyendra 
Nath  Dutt)t  for  the  Respondents. 

JUDGMENT. 

Graham,  J.— This  appeal  is  directed 
against  an  order  of  the  Subordinate  Judge 
of  Burdwan  removing  a  Receiver,  who  had 
been  appointed  in  a  suit  (No.  142  of  1923) 
for  declaration  of  title  and  partition  of 
certain  moveable  and  immoveable  proper- 
ties. 

A  preliminary  objection  has  been  taken 
on  behalf  of  the  respondents  that  no 
appeal  lies,  and  it  becomes  necessary  to 
deal  with  this  first.  So  far  as  this  Court  is 
concerned  the  question  appears  to  be  one  of 
first  impression.  At  all  events  no  case  has 
been  brought  to  our  notice  in  which  this 
particular  point  has  been  decided.  It  is 
'contended  that  r.  1  (s)  of  O.  XL1II  of  the 
0.  P.  0.,  under  which  alone  an  appeal  can 
lie,  has  no  application,  inasmuch  as  r.  1  (1) 
(a)  of  0.  XL  refers  only  to  appointment  of 
a  Receiver,  and  is  silent  as  to  his  removal. 
It  is  argued  that,  as  the  C  P.  0.  nowhere 
expressly  provides  aright  of  appeal  against 
ftn  order  removing  or  dismissing  a  Receiver, 


SRlPAfl  DUtTA  fl,  BtBHtJTI  BHUTAN  DUTTA, 


S41 
appeal 


an  intention    to  provide  for  such 
ought  not  to  be  read  into  the  Act. 

Now  0.  XLI1I,  r.  1  0)  gives  a  right  of 
appeal  against  an  ordei  under  r  1  or  i  4  of 
0  XL.  The  learned  Advocate  for  the  ap- 
pellants in  meeting  the  objection  has  not 
relied  on  r.  4  of  that  Order,  and  it  is  obvious 
that  it  has  no  application  in  the  present 
cage.  He  has  relied,  however,  on  r.  1  (1)  (6) 
of  O.  XL.  This  sub-section  and  the  por- 
tion which  precedes  it  read  as  follows. 

"When  it  appears  to  the  Court  to  be  just 
and  convenient,    the  Court  may  by  order  .. 
remove  any  person  from  the  pos- 
session or  custody  of  the  property". 

It  is  argued  that  the  words  "any  person11 
include  a  Receiver  and  that,  that  being  so, 
the  appeal  is  competent. 

It  is,  I  think,  open  to  doubt  whether  this 
sub  section  has  the  wide  meaning  sought 
to  be  attached  to  it,  so  as  to  make  it  include 
a  Receiver,  and  it  appears  to  me  that  it 
refers  to  persons  interested  in  the  property 
and  in  possession  or  custody  of  it  prior  to 
the  passing  of  an  order  appointing  a  Re- 
ceiver This  view  seems  also  to  be  sup- 
ported by  sub-s  (c)  which  follows. 

In  my  opinion,  however, an  appeal  will  lie 
under  sub-s.  (a)  of  r.  1  (1)  of  0.  XL.  The 
words  used  therein  are,  it  is  true,  "appoint  a 
Receiver  of  any  property,"  but  under  s.  16 
of  the  General  Clauses  Act  (X  of  1897)  the 
power  to  appoint  includes  the  power  to 
remove  or  dismiss,  the  power  to  terminate 
being  a  necessary  sequence  from  and 
adjunct  to  the  power  to  create,  and  it  may, 
theiefore,  be  argued  that,  if  aright  of  appeal 
is  given  against  appointment,  it  is  given 
equally  against  the  removal  of  a  Receiver, 
since  appointment  includes  the  right  to 
remove.  It  is  true  the  Code  nowhere  makes 
express  provision  for  an  appeal  against  the 
removal  of  a  Receiver,  as  it  does  in  the 
case  of  his  appointment,  but  the  reason  may 
well  be  that  it  was  not  considered  necessary 
by  virtue  of  the  section  in  the  General 
Clauses  Act  referred  to  above.  Indeed  one 
of  the  objects  of  a  General  Clauses  Act  is 
to  avoid  superfluity.  Moreover,  if  an  appeal 
lies  against  the  appointment  of  a  Receiver, 
it  would  seem  to  be  only  logical  and  con- 
sistent that  an  appeal  should  equally  lie 
against  his  removal. 

But,  it  has  been  urged  on  behalf  of  the 
respondents,  even  if  the  appeal  is  held  to  be 
competent,  it  is  premature,  inasmuch  as  no 
Receiver  has  yet  been  appointed  by  name 
to  supersede  the  Receiver  who  has 


942 


BBIPATI  DUTTA  tt  BIBHUTI^HUSAN  DtJTTA. 


!  I.  0.1928] 


removed,  -  and  that,  that    being   so,  it  is 
merely  an  interlocutory  order,  and  not  a 
final  order,  and  so  no  appeal  will  lie.    In 
support   of   this  view  reference  has  been 
made  to  the  case  of  Upendra  Nath    Nag 
Chowdhury  v.  Btiupendra  Nath  Nag  Chow- 
dhury  (1).    In  that  case  the  material  part 
of  the  order  appealed  against  was  in  these 
terms  :    4il  think  the  whole  of  the  property 
in  suit  will    be    better  managed    and  .  the 
interest  of  all  the  parties    will   be   better 
served   if  the  property  in  suit  be  placed    in 
the  hands  of  a  competent    Receiver".    Sub- 
sequently on  a  date  after  the  appeal  to  the 
High  Court  had  been  filed  one  Nakulesvvar 
Boae  was  appointed  as   Receiver.    It  was 
held  on  these  facts  that  the  order  in   ques- 
tion was  au  interlocutory  order   and    not  a 
final  order,  and  that  the  appeal  was,  there- 
fore, premature  and  incompetent.  Similarly 
in  the  present  case    no  Receiver  has  yet 
been  appointed    by  name,  the  reason  ap- 
parently being  that  the  order  did   not  con- 
template   the  appointment   of   the     new 
Receiver  until   the  following  month,  and 
in  the  meanwhile  this  appeal,  involving  the 
sending  up  of  the  record  to  this  Court,  was 
filed  on  the  16th    June  1925.    It  may  be 
argued,  therefore,  that  the  order  was  merely 
interlocutory,    that  the    appeal    was    pre- 
mature, and  that  the  appellants  should  have 
waited  until  the  new  Receiver  was  appoint- 
ed when  there  could  be  no  possible  doubt  as 
to  the  competency  of  the  appeal. 

In  reply  to  this,  however,  the  learned 
Advocate  for  the  appellants  contends  that, 
if  an  order  consists  of  two  parts,  half  of  it 
being  interlocutory,  and  half  final  he  is 
entitled  to  appeal  against  that  portion  of  it 
which  is  final,  and  he  argues  that,  inasmuch 
as  part  of  the  order  directed  that  the  Re- 
ceiver was  to  be  removed,  the  Defendant 
No.  1  was  entitled  to  appeal,  and  that  he 
was  bound  to  exercise  his  right,  or  run  the 
risk  of  losing  it. 

There  is  certainly  some  force  in  this  con- 
tention. The  crucial  question  seems  to  be 
whether  it  was  a  final  order  or  not.  The 
effect  of  the  order  was  that  the  Receiver 
was  declared  to  be  removed,  and  it  seems 
to  me  that  the  mere  fact  that  the  appoint- 
ment of  the  new  Receiver  was  postponed 
(presumably  as  a  matter  of  convenience)  to 
the  beginning  of  the  next  month  cannot  in 
any  way  affect  the  position.  So  far  as  the 
Subordinate  Judge  was  concerned  it  was 
presumably  a  final  order,  which  it  would  not 
(1)  0  In<J,  das,  582;  13  0,  L,  J,  157, 


have  been  open  to  him  to  revise.  It  was 
something  more  than  a  preliminary  order, 
or  expression  of  opinion.  This  view  of  the 
matter  finds  support  in  the  case  of  Palani- 
appa  Cfietty  v  Palaniappa  Chetty  (2)  de- 
cided by  a  Full  Bench  of  the  Madras  High 
Court. 

The  present  case  is  distinguishable  from 
the  case  in  13  Calcjutta  Law  Journal  [Upendra 
Nath  Nag  Chowdhury  v.  Bhup&ndra  Nath 
Nag  Chowdhury  (1)]  referred  to  above,  inas- 
much as  there  was  in  that  case  no  question 
of  removal  it  being  merely  a  question  of 
appointment,  and  it  was  held  that  the  order 
was  interlocutory  and  not  final  with  the 
result  that  the  appeal  was  premature. 

In  my  opinion,  therefore,  the  order  must 
be  held  to  be  a  final  order,  and  as  such, 
consistently  with  the  view  which  I  have 
taken  as  to  the  interpretation  to  be  put  on 
r.  1  (1)  (a)  of  0.  XL,  liable  to  be  challenged 
by  way  of  appeal. 

On  the  merits  the  substantial    coatention 
on  behalf  of  the  appellants  is  that  the  re- 
moval of  the  Receiver  was,  having  regard 
to    all  the  facts  and  circumstances  of  the 
case,  wholly  unjustifiable  I  was  at  one  stage 
of  the  hearing  rather  inclined  to  hold  that 
this  contention  had  been  substantiated,  but 
upon  further   reflection    I  have   formed  a 
decided  opinion  that  we  should  not  be  justi- 
fied in  the  particular  circumstances  of  this 
case  in    interfering    with     the   discretion 
which  has    been    exercised   by  the  Court 
below.    There  can    be  no  doubt  that  an 
Appellate  Court  has  the  power    to    inter- 
fere, and  ought  to  do  so  in  a  fit    case  for 
such  interference,  and  where  it  has    been 
shown  that   there  has  been  arbitrary  exer- 
cise of    the  power    of    removal.     At  the 
same  time  Courts  of  Appeal  have  always 
been  reluctant  to   interfere    in  a  matter 
which  is  regarded  as  one  purely  within  the 
discretion  of  the   Court   concerned.     The 
principles  applicable   to  such    cases  have 
been  frequently  laid  down,  and  it  will  suffice 
to  refer  to  one  of  these  cases  Kali  Kumari  v. 
Bachhan  Singh  (3)  where  the  subject  is  dealt 
with.  It  was  there  held  that  the  selection 
and  appointment  of  a  particular  person  as  a 
Receiver  is  a  matter  of  judicial  discretion 
to  be  determined  by  the  Court  according  to 
the  circumstances  of  the  case,  and  that  the 
exercise  of  this,  like  other  matters  of  judi- 
cial discretion,  will  rarely  be  interfered 

(2)  40  lad.  Gas.  185;  40  M.  18,  32  M,  L,  J,  304;  (19U) 
M.  W.  N.  393;  5  L.  W.  776. 

(3)  19  Ind,  Cae,  873;  17  C,  W,  N,  074, 


(>2  I.  0.  1926]     COMMISSIONER  0*  INCOME-TAX,  MADRAS  V,  MESSRS.  KINO  &  PARTRIGB,         943 


with  by  an  appellate  tribunal.  It  was  fur- 
ther held  that  in  order  to  induce  the  Appel- 
late Court  to  interfere  it  is  necessary  to  show 
some  overwhelming  objection  in  point  of 
propriety,  or  some  fatal  objection  in  prin- 
ciple to  the  person  named.  It  was  also 
pointed  out  that  it  is  a  settled  rule  that  one 
of  the  parties  to  a  cause  should  not  be  ap- 
pointed Receiver  without  the  consent  of 
the  other  party  unless  a  very  special  case 
is  made  out. 

That  was  a  case  of  appointment  of  a 
Receiver,  but  the  principles  laid  down  ap- 
pear to  be  equally  applicable  in  a  case  of 
removal,  and  the  question  which  then  arises 
is  whether  in  this  instance  there  has  been 
such  an  arbitrary  exercise  of  discretion  by 
the  Court  below  as  would  justify  our  inter- 
ference. Jn  my  opinion  no  such  case  has 
been  made  out.  The  main  point  is  that  the 
Receiver  has  failed  to  submit  any  explana- 
tion, which  can  be  considered  satisfactory, 
of  his  omission  to  show  in  his  accounts  the 
sum  of  Rs.  4,000  realised  by  him  after 
his  appointment  as  Receiver  from  Messrs. 
N,  C.  Sarkar  &  Sons  on  account  of  royalties 
due  to  the  estate.  This  was  a  sufficiently 
serious  matter,  but  the  Receiver  does  not 
appear  to  have  considered  it  necessary  to  go 
into  the  witness-box  to  meet  this  and  other 
charges  which  were  preferred  against  him. 
All  that  he  condescended  to  do  was  to  sub- 
mit an  explanation  through  his  Pleader,  so 
that  in  a  manner  he  seems  to  have  allowed 
the  case  against  him  to  go  by  default.  On 
his  own  showing  some  portion  of  this  money 
would  go  to  the  plaintiffs  and  the  defendants 
Nos  6  and  7  according  to  the  determination 
of  their  shares  in  the  pending  suit,  and  it 
was,  therefore,  incumbent  upon  him  to  show 
the  amount,  or  a(j  all  events  portion  of  it  in 
his  accounts. 

On  this  ground  alone  the  propriety  of  the 
order  made  in  the  Court  below  cannot,  I 
think,  be  challenged  with  success  But  there 
is  another  aspect  of  the  matter.  It  is  clear 
from  the  learned  Subordinate  Judge's  order 
that  owing  to  the  embittered  relations 
between  the  parties  a  great  deal  of  the 
Court's  time  had  been  unnecessarily  wast- 
ed in  hearing  all  sorts  of  objections  and 
petitions  (there  is  ample  evidence  of  this 
on  the  record),  and  there  seemed  every  pro- 
bability that  the  management  of  the  estate 
might  be  seriously  hampered.  The  Sub- 
ordinate Judge  considered  that  such  an 
undesirable  state  of  affairs  should  be  put 
&n  end  to,  and  with  that  opinion  it  ia  no  t 


possible  to  find  fault.  Indeed  matters  might 
almost  have  reached  an  impasse.  Again 
apart  from  the  item  of  Rs.  4,000,  there 
appears  to  be  some  justification  for  the 
contention  that  the  Receiver  has  betrayed 
bias  in  his  management.  Absolute  im- 
partiality as  between  the  parties  to  the 
litigation  is,however,  an  indispensable  quali- 
fication of  a  Receiver,,  and  upon  an  applica- 
tion for  his  removal,  the  Court  may  properly 
consider  his  past  relations  to  the  parties  as 
well  as  his  present  sympathies.  If  by 
reason  of  interest  shown  by  him  the  effici- 
ency of  the  Receiver  as  an  officer  of  the 
Court  is  impaired,  the  Court  will  be  justifi- 
ed in  removing  him. 

Finally  it  is  to  be  observed  that  in  cases 
where  one  of  the  parties  to  the  litigation  is 
appointed  as  Receiver  the  order  is  usually 
based  on  consent  of  the  parties,  though 
there  may  be  exceptional  cases  where  this 
is  not  so.  In  the  present  instance  the  ap- 
pointment was  at  fiist  made  with  the  con- 
sent of  the  parties.  That  consent  has  now 
been  withdrawn,  the  allegation  being  that 
the  other  parties  have  lost  their  faith  in  the 
Receiver  as  a  result  of  his  misconduct.  In 
these  circumstances  the  foundation  upon 
which  the  appointment  rested  no  longer 
exists,  and  with  the  withdiawal  of  the  con- 
sent it  may  be  argued  that  the  justification 
for  retaining  him  as  Receiver  disappears 

For  these  reasons  stated  while  1  am 'of 
opinion  that   the  appeal    is    competent,  I 
hold  that  no  case  has  been  made  out  on  /he 
merits  which  would  justify  us  in  interfer- 
ing    The  appeal,  therefore,  fails  and  must 
be  dismissed  with  costs.    The    hearing-fee 
is  assessed  at  five  gold  mohnrs  to  the  plaint- 
iffs, three  gold  mohurs  to  the  defendant  No  6 
and   two   gold    mohurs  to  the  defendant 
JNo.  7. 

Newbould,  J.— I  agree. 

M-  B-  Appeal  dismissed. 

N.  H. 

MADRAS  HIGH  COURT. 

REFERRED  CASE  No,  3  OF  1925 

October  29,  1925. 

Present;—SiT  Victor  Murray  Coutts 
Trotter,  KT.,  Chief  Justice,  Mr.  Justice 
Krishnan  and  Mr.  Justice  Beasley 

COMMISSIONER  OF  INCOME-TAX 

MADRAS— REFERRING  OFFICER          ' 

versus 
MESSRS.  KING.  AND  PARTRIGE— 

RESPONDENTS. 
<4ee  (XI  of  1923),  9,  ll-Madras 


944      COMMISSIONER  OF  INCOME-TAX,  MADRAS  V.  MESSRS.  KINO  &  PARTRIGE.       [92  I.  0.  1926] 


Municipal  Act   (IV  of  1019),  a    111— Profession  tax 
levied  by  Municipality— Deduction  from   income-fay 

Profession  tnx  levied  under  B  111,  Madras  City 
Municipal  Act,  is  a  contribution  from  the  income  of 
the  assessee  to  the,  Uumcipalily,  nnd  onunot,  therefore, 
be  allowed  as  a  deduction  from  the  taxable  income,  as 
an  expenditure  incurred  solely  for  the  purposes  of  the 
profession  of  the  assessee,  withm  the  meaning  of  s.  11 
of  the  Income  Tax  Act.  fp  944,  oo]«  2  ] 

Strong  d  Co,  Ltd  v  WoodJield,OWG)  A  C.  448,  75 
L  J  K.B  864,  93  L  T  241,  22  T  L  K  754,  Smith  v. 
Lion  Brewary  Co  ,  (1911;  A.  C  150,  80  L.  J  K  H  560; 
104  L  T  021,  75  J  P.  273,  55  8  J  269,  27  T.  L.  K. 
201,  5  Tax  Cas  5^8,  Usher's  Wdtshuc  Biewnrv  Co. 
v.  Bruce,  (1915)  A,  C).  433;  84  L.  J  K  B.  417,  112  L 
T,  651,  6  Tax.  Cas.  399,  59  S.  J.  141;  31  T.  L.  K.  104, 
relied  on, 

Case  stated,  under  s.  66  (2J  of  the  Indian 
Income  Tax  Act  XI  of  1922,  by  the  Commis- 
sioner of  Income  Tax,  Madras,  in  his  letter 
No.  2364  of  1924,  dated  the  6th  January 
1925,  referring  for  the  decision  of  the 
High  Court  the  following  question,  viz., 
"Whether  the  profession4ax  levied  under 
s.  111  of  the  Madras  City  Municipal  Act 
must  be  allowed  as  a  deduction  from  the  tax- 
able income  as  an  expenditure  incuned 
solely  for  the  purposes  of  the  profession 
within  the  meaning  of  s  11  of  the  Indian  In- 
come Tax  Act  XI  of  1922." 

Mr.  M.  Patanjali  Sastri,  for  the  Referring 
Officer. 

Mr.  JR.  N.  lyengar,  for  the  Respondents. 

ORDER* — This  is  a  reference  under 
e,  66  (2)  of  the  Indian  Income  Tax  Act  (XI 
of  1922),  and  the  question  submitted  for  our 
opinion  is  whether  profession  tax  paid 
under  s.  Ill  of  the  Madras  City  Municipal 
Act  should  be  allowed  as  an  expenditure 
incurred  solely  for  the  purposes  of  the  pro- 
fession of  the  assesseea  within  the  meaning 
of  s.  11  of  the  Income  Tax  Act. 

The  assessees  are  a  firm  of  attorneys 
practising  in  Madras  and  they  claim  that 
they  are  entitled  to  the  deduction  above 
mentioned.  The  Commissioner  of  Income 
Tax  was  of  opinion  that  the  deduction 
claimed  was  not  an  allowable  item. 

The  answer  to  the  question  put  to  us 
depends,  in  our  opinion,  upon  the  nature  of 
the  prof ession  tax  levied  by  the  Municipal- 
ity. If  the  profession  tax  is  a  contribution 
from  the  income  of  the  asseesee  to  the 
Municipality  it  will  stand  on  the  same 
footing  as  income-tax  itself  \\hichis  such  a 
payment  to  the  Government.  It  is  clear, 
in  assessing  the  income  of  a  person  the 
income-tax  he  pays  could  not  be  deduct- 
ed, for  what  is  paid  is  a  part  of  the  income 
itself  and  not  an  expenditure  for  earning 
that  income  or  profit.  It  was  so  ruled  in 


Ashton  Gas  Co,  v.  Attorney- General  (1)  and 
the  proposition  is  conceded  before  us. 
What  then  is  profession  tax — is  it  a  paj  ment 
made  out  of  the  income  of  the  tax  payer  or 
is  it  expenditure  which  he  has  to  incur  to 
enable  him  to  earn  his  income.  We  are  of 
opinion  that  it  is  the  former  and  not  tfce 
latter. 

Under  the  City  Municipal  r  Act  (IV  of 
1919),  s.  Ill,  every  person  not  liable  for  the 
Companies'  tax  who  within  the  city  and  for 
a  period  of  60  days  in  the  half  year  exer- 
cises "a  profession,  art,  trade  or  calling  or 
holds  any  appointment,  public  or  private, 
bringing  him  within,  ,the  taxation  rules  in 
Sch.  IV",  is  liable  to  pay  the  profession  tax. 
Now  Hch  IV  makes  it  clear  that  the  amount 
of  tax  payable  is  dependent  on  the  income 
of  the  person  taxed,  the  minimum  being  an 
income  of  Rs.  100  a  month  except  in  the 
case  of  hotel- keepers,  etc.,  dealt  with  under 
cl.  (?.i).  Professional  men  aie  taxed  not 
because  they  cany  on  their  profession  but 
because  they  do  so  and  earn  an  income. 
The  amount  of  tax  varies  with  the  income 
and  if  a  person  is  over-taxed,  he  has  a  right 
of  appeal. 

IS'ow  the  nature  of  the  tax  cannot  vary 
with  the  individual  taxed.  In  the  case  of 
persons  holding  appointments  under  the 
Government,  it  seems  to  me  impossible  t  o 
predicate  that  they  pay  profession-tax  to 
enable  them  to  earn  their  salary.  Section 
111,  Explanation  2  makes  even  pensioners 
liable  for  profession  tax  as  if  they  were 
holders  of  appointments  carrying  a  salary 
equal  to  the  pension.  In  their  cases  it  is 
still  more  difficult  to  treat  the  profession 
tax  as  a  payment  by  them  to  earn  their 
income.  It  is  clear  in  these  cases  the  Muni- 
cipality is  claiming  a  part'  of  their  income 
as  a  tax.  A  different  rule  it  seems  to  us 
cannot  be  applied  in  the  case  of  men  who 
make  their  income  by  professional  services. 
It  is  argued  that  because  Sch.  Ill  uses  the 
words  "by  way  of  license  fee,"  we  must  hold 
that  the  payment  of  the  profession  tax  is 
for  the  purpose  of  obtaining  a  license  to 
carry  on  one's  profession  in  the  city.  We  are 
unable  to  accept  this  argument.  The  Act 
deals  with  several  matters  in  which  the 
obtaining  of  a  license  is  a  pre-requisite  to 
the  carrying  on  of  a  business  or  profes- 
sion within  the  Municipal  limits.  We  find 
examples  of  it  in  Chap,  XII  of  the  Act. 
There  is  no  provision  in  the  Act  which 

(1)  (K06)  A.  C.  10;  .75  L.  J.  Ch,  1;  70  J,  P  40;  93 
L.  T.  676;  22  T.  L  K,  82;  13  Hanson  35. 


COMMISSIONER  OF  INCOME-TAX  9.  MESSRS.  KINO-  &  PARTRIGB. 


[92  L  0,  1926] 

makes  the  carrying  on  of  one's  professions 
without  paying  the  profession  lax  illegal; 
and  no  formal  license  is  issued  on  payment; 
the  tax  if  unpaid  can  no  doubt  be  collected 
by  Coercive  procesoes  of  distraint,  etc.,  but 
the  carrying  on  of  the  prolesaion  is  not 
interi'ered  with.  It  is  clear,  thereiore,  that 
the  Act  does  not  treat  the  profession  tax 
as  a  payment  for  a  license.  The  words  "by 
w$y  of  a  license  fee"  seem  to  us  to  show 
that  the  payment  is  to  be  made  in  the 
manner  of  a  license  fee  but  do  not  imply 
th&t  in  itself  the  tax  is  a  license  fee.  It  is 
true  that  under  Part  II,  bch.  IV,  r.  9  the  tax 
is  estimated  on  general  considerations  and 
not  on  the  exact  amount  of  ascertained 
income  of  the  person  taxed.  This  merely 
provides  a  method  of  estimating  one's  in- 
come to  avoid  the  troubles  of  having 
accounts  produced  and  examined  in  every 
case.  The  fact  that  when  an  over-estimate 
is  made,  liberty  is  given  to  the  person  taxed 
to  produce  his  accounts  and  piove  his  in- 
come and  get  his  tax  reduced  indicates  that 
the  proper  basis  of  the  tax  is  the  income 
earned.  In  this  view  payment  of  the  pro- 
fessioa  tax  cannot  be  held  to  be  "an.  expendi- 
ture for  the  purpose  of  such  profession" 
though  it  is  incurred  in  connection  with  it. 
The  words  "for  the  purposes  of11  were  con- 
strued by  Lord  Davey  in  the  case  of  Strong 
&  Co.  v.  Wood  field  (J)  where  the  expression 
Wf^s  "for  purposes  of  the  trade'*.  His  Lord- 
ship observed  "These  words  appear  to  me 
to,  mean  for  the  purpose  of  enabling  a 
person  to  carry  on  and  earn  profits  in  the 
trade,  etc.,  1  think  the  disbursements  per- 
mitted are  such  ao  are  made  for  that  pur- 
pose. it  is  not  enough  that  the  disburse- 
ment is  made  in  the  course  of,  or  arisea  out 
o^,  aris  connected  with,  the  trade,  or  is  made 
out  of  the  profits  of  the  trade.  It  must  be 
made  for  the  purpose  of  earning  the  pro- 
fits11. Following  that  view  we  consider  that 
the  payment  of  profession  tax  does  not  fall 
within  fL  11. 

Tae  case  of  Smith  v.  Lion  Brewary 
Co,  (3)  and  Usher's  Wiltshire  Brewary 
Co,  v.  J3rwce  (4)  were  cited  by  the  learn- 
ed Council  for  the  assejseesr  But  in- 
stead of  helping  him  they  show  what 
may  properly  be  treated  as  money  spent  for 

(2)  (1906)  A.  0.  448,  75  JL  J,  K,  B,  864;  05  L,  T.  211; 

rp    j      l>    7*»J, 

3)'(19tl)A  Q.  150,  SQL  J  K  B.  56$;  101  L.  T. 
;  75  J,  P.  273,  55  8.  J.  269,  27  T.  L.  R.  261;  5  Tax 
.  5(18. 

(4)  (1915)  A,  0,  433;    84  L,  J.  K,  B,  417;    112  Lf  Tf 
P5I;  g  Tax  Ow.  399;  59  S,  J,  144;  31  T,  LJ  R,  104.J 

CO 


945 


purposes  of  trade.  The  expenses  refer- 
red to  in  those  cases  were  directly  incurred 
for  the  purpose  of  increasing  the  income 
of  the  trade  and  were,  therefore,  allowed  to 
he  deducted.  The  cases  do  not  apply  in  the 
view  we  take  of  the  nature  of  the  profession 
tax.  Along  with  these  cases  should  be  con- 
sidered the  case  of  money  spent  for  an  anti- 
prohibition  campaign  by  a  brewer  which 
was  disallowed  as  a  deduction  as  it  was  held 
that  it  was  not  money  directly  spent  for 
increasing  the  brewer's  income  though  it 
may  have  indirectly  had  that  effect:  See 
Ward  c6  Co  v.  Commissioner  of  Taxes  of 
New  Zealand  (5). 

The  case  of  Commissioner  of  Income-Tax, 
Madras  v.  Nedungadi  Bank  Ltd.  (6)  referred 
to  the  Companies1  tax  and  not  to  the  profes- 
sion tax.  The  observation  in  it  regarding  pro- 
fession tax  that  it  stands  on  the  same  foot- 
ing as  income-tax  supports  the  contention 
of  the  Government  but  we  do  not  look  upon 
it  as  any  authority  on  the  point  before  us  as 
the  observation  is  only  an  obiter  dictum* 
The  case  is  not  otherwise  applicable. 

Patent  Costings  Syndicate  v.  Etherington 
(7)  referred  to  excess  profit  duty  which 
stands  on  a  different  footing  altogether,  A& 
pointed  out  by  the  learned  Judge  there  it 
wa<*  declared  by  Statute  to  be  an  admissible 
deduction.  Farther  more  the  case  was  one 
of  net  profits  of  the  Company  on  which 
dividend  was  payable  to  the  manager  arid 
not  an  income-tax  case. 

For  the  above-mentioned  reasons  we  have 
come  to  the  conclusion  that  the  amount  of 
profession  tax  paid  is  not  a  proper  deduc- 
tion for  assessment  of  income-tax  and  we 
answer  the  question  submitted  in  the  nega* 
tive.  The  assessee  will  pay  the  Commis- 
sioner costs  and  Vakil's  fee  Us.  250. 

v.  N.  v.  Question  answered 

N.  H.  in  the  negative. 

(5)  (1923)  A.  C    145,  02  L   J.  P,  0.  33,  128  L.  T.  136; 
39  T.  L.  U  90. 

(6)  Blind.  Gas   454,  47  M  667,  20  L.  W.  87,   47  M. 
L  J   loO,  (lim;  M  W.  K  580,  35  M.  L.  T.  53,  A.  L  K. 
IWUlad.  WJ. 

(7)  (1919)  2  Ch,  254,  88  k,  J,  Ch.  398;    121 1*  T*  9; 
6J  S.  J,  573,  35  T.  L.  R,  528. 


a  A 

(3)(19tl) 
321 
Gas.  5(18. 


SUSIL  CHANDRA  GUHA  0.  GOURI  SDNDAB1  DEVI. 


CALCUTTA  HIGH  COURT. 

APPEAL  PROM  ORDKR  No.  142  OP  1925. 

July  3,  1925. 
Present : — Mr,  Justice  Cuming  and 

Mr.  Justice  Ghakravarti. 

SUSIL  CHANDRA  GUHA  AND  ANOIHBR— 

PETITIONER,* — APPELLANTS 

versus 

QOURI  SUNDARI  DEVI— PLAINTIFF 
AND  OTHBBS— DEFENDAMTS— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s  146,  0  IX, 
r.  13— Charge,  suit  for  enforcement  o/—J2x  parte  decree 
—  Puisne  mortgagee,  if  can  have  decree  set  aside. 

A  puisne  mortgagee  who  is  not  a  party  to  a  suit 
for  enforcement  of  a  charge  against  the  mortgaged 
property  is  not  entitled  under  s  146,  G  P  G  ,  to  main- 
tain an  application  for  setting  aside  the  ex  patte 
decree  in  the  suit  under  0  IX,  r.  13  of  the  Code 

Sitaramaswamy  v.  Dulla  Lakshmi  Narasamma,  48 
Ind.  Oas.  840;  41  M.  510,  8  L.  W.  21,  distinguished. 

Appeal  against  an  order  of  the  Subordi- 
nate Judge,  Assansole,  Burdwan,  dated  the 
15th  April  1925. 

Mr.  Gunada  Charan  Sen  and  Babu  Bhu- 
pendra  Chandra  Guha,  for  the  Appellants. 

Mr.  Bankim  Chandra  Mukherjee  and  Babu 
Cham  Chandra  Ganguli,  for  the  Respond- 
ents. 

JUDGMENT. 

Cumins: ,  J«— This  is  an  appeal  against 
an  order  of  the  learned  Subordinate  Judge 
of  Assansole  rejecting  an  application  under 
O.  IX,  r.  13  to  set  aside  two  decrees  which 
had  been  passed  ex  parte.  The  ground 
for  refusing  the  application  is  that  it  was 
not  maintainable.  The  facts  appear  to  te 
these.  A  certain  suit  was  instituted  on  the 
13th  February  1922  for  recovery  of  certain 
royalty  which  had  been  made  a  charge 
on  the  property.  A  preliminary  decree 
was  passed  on  the  31st  October  1924  and 
the  final  decree  was  passed  on  the  17th 
November  1924.  Both  these  decrees  were 
passed  ex  parte.  The  present  applicant  is 
a  puisne  mortgagee  under  a  mortgage  deed 
executed  in  June  1921  and  is  now  in  pos- 
session. Admittedly  he  was  not  a  party  to 
the  suit. 

It  seems  to  me  that  the  application  wes 
rightly  rejected.  O.  IX,  r.  13  provides  th$t 
"In  any  case  in  which  a  decree  is  paesed 
ex  parte  against  a  defendant,  he  may  apply 
to  the  Court  by  which  the  decree  was  pass- 
ed for  an  order  to  set  it  aside ;  and  if  he 
satisfies  the  Court  that  the  summons  was 
not  duly  served  or  that  he  was  prevented 
by  any  sufficient  cause  from  appearing 
when  the  suit  was  called  on  for  hearing,  the 
Court  iehfl11  ™*fcoan  order  setting  ?side 


the  decree  as  against  him.11  Now,  admit- 
tedly the  applicant  was  not  a  defendant 
in  the  suit  and  he  does  not  come  within 
the  purview  of  O.  IX,  r.  13.  The  learned 
Advocate  who  appears  for  him  contends 
that  this  case  comes  within  s,  146  of  the 
Code  which  provides  as  follows:  "Save  as 
otherwise  provided  by  this  Code  or  by  any 
law  for  the  time  being  in  force,  where  any 
proceeding  may  be  taken  or  application 
made  by  or  against  any  person,  then  the 
proceeding  may  be  taken  or  the  applica- 
tion may  be  made  by  or  against  any  per- 
son claiming  under  him.11  I  do  not  think 
that  this  case  comes  within  the  terms  of 
the  section. 

Section  14G  would  not,  I  think,  enable 
a  pusine  mortgagee  who  is  not  a  party  to 
the  suit  to  maintain  an  application  under 
O  IX,  r,  13.  Let  us  suppose  for  the  sake 
of  argument  ho  was  allowed  to  make  the 
application  and  the  ex  parte  decree  was  set 
aside.  He  would  surely  not  be  a  party  to 
that  suit  and  the  defendant  could  once 
more  allow  the  suit  to  be  decreed  ex  parte. 

The  order  of  the  learned  Subordinate 
Judge  is  right  and  the  appeal  must  be 
dismissed  with  costs.  I  assess  the  hearing 
fee  at  3  gold  mohurs. 

Chakravarti,  J.— I  agree.  The  learn- 
ed Advocate  for  the  appellant  relied  upon 
the  case  of  Sitaramatiwami  v.  Dulla  Lak- 
shmi Narasamma  (1)  in  support  of  his  con- 
tention that  a  person  who  was  not  a  party 
to  a  suit  was  held  entitled  to  come  under 
s.  146,  C.  P.  C.,  and  allowed  to  file  an  appeal 
against  a  final  decree.  It  appears  to  me 
that  that  case  is  clearly  distinguishable 
for  two  reasons  ;  first,  because  the  interest 
of  the  appellant  in  that  case  accrued  after 
the  institution  of  the  suit ;  and  the  second 
ground  on  which  I  think  the  present  case 
is  distinguishable  is  that  it  was  not  an 
application  under  O.  IX,  r.  13  but  an  appeal 
against  a  final  decree.  This  case,  therefore, 
is  no  authority  for  the'  proposition  which 
the  learned  Advocate  wanted  to  establish 
in  the  present  case.  I  think,  therefore,  this 
appeal  is  not  maintainable.  I  agree,  there- 
fore with  my  learned  brother  that  this  ap- 
peal should  be  dismissed  with  costs. 

M.  B.  Appeal  dismissed. 

(1)  48  Ind.  Cae.  840;  41  M,  510;  8  L,  W.  21, 


£92 1.  0. 1928]  feEttf  MAt 

LAHORE  HIGH  C6URT. 

LBTTRRS  PATBKT  APPEAL  No.  235  OF  1924, 

November  18,  1925. 
Present:— Si?  Shadi  Lai,  KT.,  Chief  Justice, 

and  Mr.  Justice  LeRossignol. 

RELU  MAL  AND  OTHERS— PLAINTIFFS— 

APPELLANTS 

versus 

AHAMAD  AND  OTHEUi— DEFENDANTS- 
RESPONDENTS. 

Contract  Act  (IX  of  187t)  $s.  69,  60-  Appropriation 
of  payments  to  particular  debts—Creditor  and  debtor, 
respective  rights  of 

Primarily  it  is  the  direction  of  the  debtor  either  ex- 
press or  implied  which  determines  to  which  paiticulai 
debt  a  payment  is  to  be  appropriated  But  the 
intimation  by  the  debtor  must  synchronise  with  the 
payment  Where,  however,  a  debtor  does  not  avail  of 
this  privilege,  the  creditor  has  plenaiy  discretion  to 
apply  any  payment  at  any  time,  even  up  to  the  tune 
01  trial,  to  any  debt  he  chooses,  [p  917,  col  2,  p  948, 
col.  ].] 

KundanLal  v  Jayan  Nath,  30  Ind  Cas  92,  37  A. 
649,  13  A.  L  J.  908,  not  followed 

Clayton  s  case,  (1816)  15  K.  R  161,  1  Mer  572,  35  K. 
R  781,  distinguished. 

Cory  Brothers  &  Company  Limited  v  The  Oivnets 
of  the  Turkish  Steamship  "Mecca",  (1897)  A  C  286,  65 
L  J  P  C  86,  76  L  T.  579;  45  W  R  C67  and  Seymour 
v  Pickett,  (1905)  1  K  B  715,  74  L  J,  K,  B.  413,  92  L 
T,  519,  21  T  L,  R.  302,  followed 

Letters  Patent  Appeal  from  the  decree 
of  Mr.  Justice  Abdul  Raoof ,  in  Civil  Appeal 
No.  956  of  1924,  dated  the  12th  November 
1924,  affirming  that  of  the  District  Judge, 
Kariial, dated  the 4th  January  1924,affirming 
that  of  the  Subordinate  Judge,  Forth  Class, 
Karnal,  dated  the  23rd  April  1(J23. 

Mr.  Shamair  Chand,  for  the  Appellants. 

Lala  Mehar  Chand  Maha^an,  for  the 
Respondents. 

JUDGMENT*— This  appeal  arises  out 
of  a  suit  brought  on  a  deed  of  hypotheca- 
tion for  the  recovery  of  Rs.  200  principal 
plus  Rs.  530  interest,  total  Rs.  730.  The 
original  creditor  was  one  Ulfat  Ram  and 
the  plaintiffs  are  his  representatives.  The 
main  defence  pleaded  was  a  complete  re- 
payment of  the  claim  and  the  further  con- 
tention that  other  payments  in  respect  of 
other  debits  had  been  made  to  the  widow  of 
Ulfat  Ram.  On  the  production  of  Ulfat 
Rain's  account  boojt  it  was  found  to  con- 
tain in  the  defendant's  account  seven 
entries  on  the  debit  Bide  and  five  on  the 
credit  side.  The  first  item  on  the  debit 
side  was  strangely  enough  the  item 
secured  by  the  deed  of  hypothecation; 
the  other  items  were  unsecured.  Of  the 
items  on  credit  sids  two  were  specifically 
appropriated,  the  other  three  had  not  been 
specifically  appropriated  to  the  unsecured 
debit  iteinsbut  it  is  significant  the t  the  total 


r,  AHA^Abi  94? 

credits  tallied  with  the  total  unsecured 
debits.  On  these  fa'cts  the  Courts  below 
have  concurred  in  holding  that  though  the 
main  defence  is  false,  the  unappropriated 
credit  items  mustbe  applied  in  reduction  of 
the  present  claim  on  the  hypothecation  deed 
as  being  the  earliest  debit,  and  for  this  course 
they  have  sought  and  found  justification  in 
s  61  of  the  Contract  Act. 

For  the  plaintiffs  it  has  been  urged  be- 
fore us  that  inasmuch  as  the  debtor  did 
not  take  advantage  of  the  privilege  con- 
ferred upon  him  by  s.  59  of  the  Contract 
Act,  s.  60  of  the  Act  gives  the  creditor  plenary 
discretion  to  apply  any  payment  at  any 
time  even  up  to  the  time  of  trial  to  any 
debt  he  chooses  and  after  having  heard 
Counsel  for  both  sides  we  hold  that  the 
appeal  must  succeed. 

Now,  it  is  indubitable  that  when  a  debtor 
owes  several  distinct  debts  to  one  person 
and  makes  a  payment  to  him,  it  is  the 
direction  either  express  or  implied  of  the 
debtor  with  regard  to  the  application  of 
the  payment  which  governs  the  payment's 
destination.  A  careful  consideration  of 
s.  5!)  of  the  Indian  Contract  Act  leaves  no 
doubt,  however,  that  that  intimation  must 
be  synchronous  with  the  payment.  Where, 
however,  the  debtor  has  not  taken  advant- 
age of  the  power  conferred  upon  him  by 
s.  59,  the  creditor  is  at  liberty  to  apply  the 
payment  in  liquidation  of  any  lawful  debt 
actually  due  and  payable  to  him  from  the 
debtor.  The  learned  Judge  in  chambers, 
following  Kundan  LaZ  v.  Jagan  Nath  (1). 
holds  that  ss.  59,  60  and  61  of  the  Contract 
Act  were  enacted  to  embody  the  rule  laid 
down  in  Clayton's  case  (2).  It  holds  that 
the  creditor  can  take  advantage  of  the 
discretion  allowed  to  him  by  s.  60  only  at 
the  time  of  the  payment  and  is  not  at 
liberty  to  make  any  ex  post  facto  appropria- 
tion Now,  Clayton's  case  (2)  was  based  on 
peculiar  facts.  The  question  which  the 
Courts  weie  called  upon  to  decide  was 
whether  a  customer  of  a  bank  was  justified 
in  claiming  that  payments  made  to  him 
by  the  Bank,  were  payments  made  against 
particular  credit  items  in  his  account  and 
not  against  the  account  as  a  whole,  and 
it  was  held  that  the  payments  were  made 
against  the  whole  account  and  that  the 
creditor  was  not  at  liberty  to  urge  ex  post 
facto  that  particular  payments  to  him 
should  be  debited  against  particular  credit 
items  In  that  case,  however,  the  learned 

(1)  30  Ind.  Cas.  92;  37  A,  649;  13  A  L.  J.  908. 
(S)  (1816)  15  R,  R,  Wlj  1  Men  372;  35  B,  K,  .781, 


948 

Master  of  the  Bolls  stated  that  he  was  not 
called  upOD  to  determine  the  general  ques- 
tion ^of  the  creditors  right  to  make  (he 
application  of  -indefinite  payments;  so  that 
the  decision  clearly  bas  no  general  applica- 
tion. ,£h0«  y  isw,  that  „  the  -creditor  may 
apply  pa  jmeixts  up  to  the  very  last  inorr.ent 
even  up  to  the  time  of  the  trial  was  adopted 
in  Cory  Brothers  ds  Company  Limited  y. 
The  Owners  of  the  Turkish  Steamship 
"  Mecca  "  (9)  and  the  Seymour  v.  Piclcett  (4), 
and  has  been  followed  by  the  High  Courts 
of  Bombay,  Madras  and  Patna.  On  the 
other  side  is  oixly  the  ruling*  relied  upon 
by  the  Court  below,  and  the  main  reason 
of  the  view  of  that  Court  appears  to  be  that 
were  the  ,  l&w  as  laid  down  in  Cory  Bro- 
thers &  Co^Ltd.  v.  The  Owner  of  the  Turkish 
Steamship  M&coa,  (3)  accepted,  there  would 
remain  no  s<?ope  for  the  application  of  s.  6t 
of  the  Qontrftct  Act  which  provided  that 
where  neither  party  makes  any  appropria- 
tion, the  payment  shall  be  applied  in 
discharge  of  the  debts  in  order  of  time. 
This  objection,  however,  does  not  im- 
press us,  for  it  is  not  difficult  to  imagine 
cases  ia,  which  neither  party,  either  by 
oversight  or  by  mistake,  has  made  any 
appropri&kkfci.  Moreover^  a  Code  attempts 
to  provide  for  all  -possibilities. 

la  our-  opinion  the  Courts  below  might 
well  have  held  on  the  peculiar  circum- 
stances of  this  case  that  the  original  creditor, 
Ulfat  Bam,  djd  appropriate  the  payments 
to  the  uijsecured  debts,  but;  we  are  bound 
by  the  ,  finding  of  fact  that  he  did  not 
do  so.  .  Holding,  howevei*,  that  s,  60  of  the 
Contract  Act  grantd  to  the  creditors  plenary 
discretion  to  make  the  appropriation  at  all 
times  up  to  the  lime  of  trial  -(and  it  is 
obvious  that  this  rule  contravenes  no 
principle  of  justice  or  equity),  we  consider 
that  the  plaintiffs  at  the  institution  oi  the 
suit  had  Appropriated  payments  to  the 
unsecured  debts  and  -were  not  restricted 
in  the  exercise  of  this  discretion  to  the 
point  oi^'tirne  when  the  payments  were 
actually  made.  -  • 

We  accordingly  accept  the  appeal,  set 
aside  the  d6cree<s"of  the  Courts  below  and 
decree  in;  full'ior  the  plaintiffs  with  costs 
throughout,1  r  ,»  m*  .  '  *  *  ••  '  < 

R.  L.        i  •  "   ^f  i  <      Appeal  accepted. 

(3)  (I89D4,e.»8<h  08  JL.  J.P:O.86;  t6  L,  T.579; 
45  W.  R.  667,  ,  -f.i  ,  -  ,  ,  •  ,  '  - 

J-  *•  B-  41?:  9?'L-  T< 


DHANA  MOHAMMED  V.  KASTOLLA  HOLLA. 


[92 1.  0. 1926] 


>  Wt  13  A'  Lv  J, 


30  Ind 


9*  37 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE  No,  586 

OP  1923. 

July  10,1925. 

Present:— Justice  8ir  Babington  Newbould, 

KT.,  and  Mr.  Justice  Graham. 

DHANA  MOHAMMED  AND  ANOTHER— 

DEFENDANTS — APPELLANTS 

versus 

NASTULLA  MOLLA  AND  ANOTHER— 
PLAINTIFFS — EB^PONDENTS, 

Transfer  of  Piopttty  Act  (IV  of  1882),  s  oP— 
Mortgage— Improper  attestation — Bond,  it  admissible 
asontjor  money— Evidence  Act  (1  of  1872))  a,  92 — 
Contract  in  writing—Oral  evidence  if  admissible 

A  mortgage- bond  for  a  £iun  below  Rn  100  is  not 
admissible  in  evidence  when  it  is  not  legally  attested, 
[p.  949,  col.  1  ] 

Oral  proof  cannot  lie  substituted  foi  written  evidence 
of  any  contract  which  the  parties  have  put  into  writ- 
ing, [ibid.] 

Subramanian  v  Lutchman,  71  Ind.  Cas  C50;  50  1.  A, 
77;  AIR.  1923  P  C  50,  44  M  L.  J.  602;  32  M  L.  T. 
184;  25  Bom.  L  R  582,  1  R  66,  2  Bur  L  J.  25;  38  0. 
L.  J.  41,  18  L  W.  446,  (1923)  M  W.  N.  762,  28  0.  W. 
N.  1;  50  C.  333  (P.  C.),  followed. 

A  mortgage-bond  which  cannot  be  proved  as  such 
can  be  admitted  in  evidence  as  a  simple  bond  for 
payment  of  money,  [p.  049,  col,  2.  | 

Jagannath  Khan  v,  Bajrany  Da$  Agarwala,  63  Jnd. 
Cas  97;  48  C.  61,  distinguished. 

Totaluddi  Peada  v  Mahar  Ali  Shaha,  26  0.  78;  13 
lad.  Dec.  (N.  s)  654,  followed. 

Appeal  against  a  decree  of  the  Officiat- 
ing Subordinate  Judge,  Dinajpur,  dated 
the  13th  September  1922,  reversing  that 
of  the  Munsif,  Additional  Court,  at  Balur- 
ghat,  dated  the  15th  July  1921. 

Babus  Girija  Prosanna  Sanyal  and  Indu> 
Prokash  Chatter jee,  for  the  Appellants, 

Babu  Dinesh  Cfiandra  Roy,  for  the  Re- 
spondents. 

Babu  Biraj  Mohan  Majumdar,  for  the 
Deputy  Registrar. 

JUDGMENT.— The  plaintiffs  sued  the 
defendants  on  an  alleged  mortgage.  The 
suit  was  contested  tin  the  ground  that  the 
mortgage-bond  was  not  duly  attested  and 
that  no  consideiation  passed  and  that  it 
was  merely  a  benami  transaction.  The 
first  Court  held  in  favour  of  the  plaintiffs 
on  the  question  of*  attestation  "but  dis- 
missed the  suifc  on  the  ground  that  the 
mortgage  was  a  benami  *  transaction. .  ,l^he 
lower  Appellate '  Court  has  held  th$t  the 
botid  was  not  properly  attested  but  hag 
disbelieved  the  'defendants1  case  that  the 
tratisaction  was1  beftami  and  has  held  that 
the  consideration  money 'J  was  paid.  He 
had  granted  the  plaintiffs  a  decree  with  a 
direction  that  if  the  defendants  do  not  de* 


LACHHMAN  SINGH  Vk  RAM  DAS, 


[93 1  0. 1996] 

posit  the  decretal  dues  within  three  months 
they  will  be  absolutely  debarred  from  all 
rights  to  redeem  the  property. 

It  is  contended  on  behalf  of  the  appel- 
lants that  after  finding  that  the  bond  was 
not  properly  attested  the  lower  Appellate 
Court  should  not  have  held  that  there  was 
a  valid  mortgage.  This  decision  is  based 
on  the  finding  that  the  loan  was  for  less 
than  Ra.  100  and  that  the  plaintiffs  got 
possession  of  the  property,  so  a  document 
was  t  unnecessary.  In  our  opinion  on  the 
finding  that  the  bond  was  not  legally  at- 
tested the  lower  Appellate  Court  was  wrong 
in  holding  that  the  mortgage  had  been 
proved.  It  is  pointed  out  by  the  Judicial 
Committee  of  the  Privy  Council  in  Subra- 
moman  v.  Lutchman  (1)  that  oral  proof  can- 
not be  substituted  for  the  written  evidence 
of  any  contract  which  the  parties  have  put 
into  writing.  There  is  a  further  difficulty 
in  the  plaintiffs1  way.  Assuming  that  the 
mortgage  could  be  effected  by  delivery  of 
possession  and  that  this  could  be  proved 
although  the  bond  has  been  executed, 
there  is  no  finding  that  possession  was  de- 
livered in  order  to  effect  a  mortgage.  Though 
the  plaintiffs  had  got  possession  of  the 
property  it  is  the  defendants1  case  that  this 
possession  was  obtained  by  them  as  adhiars. 
The  first  Court  accepted  the  contention  of 
the  defendants  that  the  plaintiffs'  posses- 
sion was  that  of  adhiars  and  that  finding 
had  not  been  reversed  by  the  lower  Appel- 
late Court.  If  the  plaintiffs  were  put  in 
possession  as  adhiars  the  finding  of  the 
lower  Appellate  Court  would  not  be  suffi- 
cient to  establish  a  mortgage  by  delivery 
of  possession  on  payment  of  the  money  ad- 
vanced. 

On  behalf  of  the  respondents  it  is  con- 
tended that  the  finding  of  the  lower  Appel- 
,late  Court  that  tfre  document  wes  not  at- 
tested is  wrong.  Reliance  is  placed  on 
the  decision  of  a  Divisional  Bench  of  this 
Court  to  which  one  of  us  was  a  party  in 
Jagannath  Khan  y.  Dajrang  Das  Agarwala 
(2).  What  was  held  in  that  case  was  that 
the  wrijber  of  a  mortgage -bond  may  be  a 
competent  witness  to  prove  its  execution. 
It  was  certainly  not  held  that  a  witness 
who  signs  the  bond  before  the  mortgagor 
is  a  witness  who  has  attested  the  bond  as 

(1)  71  lad.  650,  50  I  A  77,  A.  I  R  l<m  P,  0.  50  44 
M.  L.  J  602.  32  M  L  T  181;  23  Bom  L  R  582,  l'  R. 
66,  2  Bur  L  J  25,  38  0.  L  J  41;  13  L  W  446* 
(1923J  M.  W.  N  762,  28  O  W.  K  1,  50  0,  338  (P,  0 ) 

(2/62  Ind,  Oat,  97;  48  0.61.  V        ' 


949 


required  by  s,  59  of  tli*  Transfer  of  Pro- 
perty Act,  Though  the  bond  cannot  be 
proved  as  a  mortgage-bond  it  is  no  bar  to 
its  being  admitted  in  evidence  if  it  is  ^re- 
garded as  a  simple  bond  for  payment  of 
money;.  In  the  case  of  Tafaluddi  Peada  v. 
Mahar  Ali  Shah  a  (3)  it  was  held  that  whsn 
a  suit  is  brought  upon  a  mortgage-bond 
although  the  mortgage  is  held  to  be  invalid 
on  the  ground  that  the  requirements  of 
s.  59  of  the  Transfer  of  Property  Act  were 
not  satisfied  the  plaintiff  is  entitled  to  re- 
cover upon  the  covenant,  the  moiiey  which 
the  defendant  covenanted  to  pay.  In  this 
case,  therefore,  the  bond  though  not  ad- 
missible to  prove  a  mortgage  is  admissi- 
ble to  prove  a  covenant  to  re  pay  money, 
and  on  this  covenant  the  plaintiffs  are  en- 
titled to  a  decree  for  the  amount  that  has 
been  decreed  by  the  lower  Appellate  Court. 

The  appeal  is  accordingly  allowed  to  this 
extent  : — The  decree  of  the  lower  Appel- 
late Court  will  be  modified  by  striking  out 
the  last  sentence,  "  defendant  do  deposit 
the  decretal  dues  within  three  months*  on 
default  defendants  be  absolutely  debarred 
from  all  right  to  redeem  the  property." 

As  the  appeal  has  been  only  partially 
successful  the  parties  will  bear  their  own 
costs  in  this  Court  except  as  regards  the 
minor  respondents  whose  costs  have  already 
been  paid. 

M.  B.  Appeal  allowed  : 

Decree  modified, 
g(3)  26  C,  78;  13  Ind.  Deo.  (N.  s.)  654. 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  FiKbT  CIVIL  APPEAL 

No  1489  OP  1925. 

December^  1925. 

Present: — Mr.,  Justice  Dalip  Singh. 

LACHHMAN  8INGH-lN$OLVBNT- 

AfrPELLANT 

versus 

RAM  DAS  AND  OTHERS — ORBOITORS  AND 
OFFICIAL  RECEIVER,  GURDA8PUR— 

RBSPONDENTS. 

Insolvency  —Mortgage  of  insolvent'*  property 
TM  Court  has  jurisdiction  to  mortgage  an  insol- 
vent's property  but  ordinarily  such  a  course  should 
not  be  adopted 

Mann  v.  Girdhan  LaJ,  61  Ind,  Cas    664,  2  L    78, 
refeired  to 

Miscellaneous  first  appeal  from-  an  order 
of  the    District  Judge,  Gurdaspur, 
the  25th  May  1925, 


950 


D03T  MOHAMMAD  V.  XADAR  BATCH  A, 


Mr.  Shamair  Chandt  for  the  Appellant, 

lala  Badri  Das,  R.  B.,  for  Lala  Faqir 
Chand,  for  the  Respondents. 

JUDGMENT.— The  ruling  reported 
aQ  Manji  v.  Girdhari  Lai  (1)  waa  evidently 
not  brought  to  the  notice  of  the  learned 
District  Judge.  I  accept  the  appeal  and 
remand  the  case  to  the  learned  District 
Judge  to  dispose  of  the  application  with 
reference  to  the  remarks  in  that  ruling  in 
the  last  paragraph  at  pages  81,  82*.  The 
Court  has  jurisdiction  to  mortgage  the  land 
but  ordinarily  such  a  course  should  not  be 
adopted.  It  is  not  clear  if  the  learned 
District  Judge  considered  the  matter  from 
this  point  of  view.  He  should  do  so  and 
then  arrive  at  a  decision. 

B.  I*.  Appeal  accepted. 

Case  remanded. 

(I)  61  Ind.  Pas.  664;  2  L.  78, t 

of  S|L~.—| 


MADRAS  HIGH  COURT. 

CIVIL  APPEAL  No.  88  OP  Iy22. 

July  24,  1925. 
Present;— Mr.  Justice  Odgers  and 

Mr*  Justice  Madhavan  Nair. 
DOST  MUHAMMAD  KHAN  SAHIB  AND 
OTHERS— PLAINTIFFS— APPELLANTS 

versus 
KADAR  BATCHA  SAHIB— DBF* NJJANT 

— RESPONDENT. 

'  Civil  Procedure.  Code  (Act  V  of  1908),  8  9$— 
Muhammadan  mosque — Scheme  suit-  -Worshippers, 
right  of— "Interest  in  tru*?\  meaning  of —Residence  in 
neighbourhood  without  habitual  worship,  whether 
sufficient— Muhammadan  Law—  Wakf — Muttawahship 
— Succession 

The  interest  in  a  public  trust  for  the  purposes  of  a 
suit  under  s.  92,  0  P.  C  ,  must  be  clear,  present  and 
substantial  and  not  remote  and  fictitious  or  purely 
illusory  or  a  mere  contingency.  Beyond  that,  the 
question  is  one  of  fact,  and  must  be  left  to  the  Court 
to  be  decided  on  a  consideration  of  the  particular 
circumstances  of  each  case  [p.  952,  col  1 .] 

Persons  who  reside  in  the  neighbourhood  of  a 
mosque  without  being  habitual  worshippers  in  it  or 
in  any  manner  specially  interested  in  it,  although  as 
Muhammadans  tney  may  have  a  right  to  offer  prayers 
therein,  do  not  possess  sufficient  "interest  in  the 
trust"  within  the  meaning  of  s.  92,  0  P.  C,,  to  entitle 
them  to  institute  a  suit  under  the  section  [p.  951,  col. 

2-1 

Ramachandra  Iyer  v.  Parameswaran  Munbi,  50 Ind. 
Gas.  693;  42  M  360;  36  M  L  J.  396;  25  M.  L  T.  304;  9 
L.  W.  492,  (1919)  M.  W.  N.  370  and  Vaidyanatha  Ayyar 
v.  Swaminatha  Ayyar,  82  Ind,  Cas  804;  47  M.  884;  47 
M  L  J.  361;  35  M.  L.  T.  189,  A.  I.  E.  1924  P.  0.  221, 
(1924)  M.  W.  N.  749;  10  O.  &  A  L.  K.  1076,  26  Bom. 
L.  R.  1121,  20  L.  W.  803;  22  A.  L  J.  983;  40  G.  L  J. 
454;  29  0,  W.  N.  154;  51 1.  A.  282,  26  P.  L.  R.  1;  L.  R. 
6  A.  (P,  C.)  17,  1  Q.  W.  N.  617  (P.  C.),  relied  on, 


[92  I.  0, 1926] 

Gopala  Kriihnier  v.  Ganapathy  Aiyar,  58  Jnd.  Gas, 
121;  12  L.  \V  772  at  p.  775;  (1920)  M.  W.  N,  478  and 
Garuda  Sanyasayya  v.  Nerella  Muthemma,  48  Ind. 
Gas.  740;  9  L.  W.  1;  35  M.  L.  J.  661,  25  M,  L.  T.  86, 
distinguished. 

Per  Madhavan  Nair,  J. — Under  the  Muhammadan 
Law  in  the  absence  of  any  rules  laid  down  by  the  found- 
er of  the  mosque,  the  muttawalh  for  the  time  being 
may  validly  appoint  a  successor  to  himself,  [p.  956, 
col  2.] 

Appeal  against  a  decree  of  the  Court 
of  the  Subordinate  Judge,  Tanjore,  in  0. 
8.  JMo.  11  of  1919. 

Mr.  P.  R.  Ganapathi  Iyer,  for  the  Appel- 
lants. 

Mr.  S.  Vamdachariar,  for  the  Respond- 
ent. 

JUDGMENT. 

Odgers,  J*— In  this  case  four  plaintiffs 
Muhammadans  brought  a  suit  under  s.  92 
of  the  C.  P.  C.  for  the  removal  of  the  de- 
fendant from  the  management-  of  mosque 
Pallivasal  in  Ellaimankoil  Street,  Tanjore 
and  for  consequential  reliefs  including  a 
scheme  for  the  management  of  the  said 
mosque.  The  1st  plaintiff  is  stated  in  the 
plaint  to  reside  at  Ohunnambukara  Street, 
the  2nd  plaintiff  at  Kollupettai  Street,  3rd 
at  Attumanthai  Street,  and  the  4th  out  of 
Fort,  Tanjore. 

The  appeal  has  been  argued  before  us  on 
the  point  of  want  of  interest  of  the  plaint- 
iffs under  the  section  of  the  C.  P,  0.  and 
also  with  a  view  to  establishing  certain 
charges  set  out  in  plaint  para.  8(/)  (g)  (i) 
and  (/)  in  order  to  prove  certain  mismanage- 
ment in  respect  of  the  temple  accounts 
and  property.  The  learned  Judge  has  dis- 
missed the  suit  on  all  points  and  I  shall 
proceed  to  deal  with  the  first  point,  that 
of  interest  as,  in  my  opinion,  the  appeal 
can  be  disposed  of  on  that  ground. 

The  defendant  in  his  written  statement 
alleges  that  the  plaintiffs  are  not  residents 
of  the  locality,  nor  do  they  live  close  to 
the  plaint  mosque.  They  have  never  wor- 
shipped in  the  mosque  nor  have  they  any 
right  to  do  so.  By  a  stone  inscription, 
Ex.  B  appearing  in  the  mosqufe,  it  would 
seem  that  Bapu  Vaidyar  erected  the  mosque 
about  the  year  1817  or  184tf.  Exhibit  A  is  a 
settlement  deed  of  1879  by  one  Amir  Khan 
Sahib,  grandson  of  the  founder  in  which 
he  settles  Rs.  4,000  worth  of  property  for 
the  benefit  of  the  charity  established  by  his 
ancestors  in  the  mosque  in  Elliammankoil 
Street,  Tanjore,  and  appoints  his  foster 
son  who  is  the  defendant  to  enjoy  the  trust 
property  and  apply  the  income  to  it.  On 
the  evidence  the  learned  Judge  has  found 


DOST  MTTOAMHAD  V,  KADAR  DATCSA. 


{98 1 0.1928] 

that  the  1st  plaintiff  who  is  the  duffadar 
of  the  District  Court  of  Tanjore  lives  far 
away  from  the  plaint  mosque  there   being 
three  other  mosques     nearer  to  his  house 
and  that  his  opportunities     for  attending 
the  plaint  mosque  arfe  limited  to  the  occa- 
sions when  he  happens  to  visit  his  second 
wife  when  she  is  living    in  her  mother's 
house.    The  2nd  plaintiff  says  that  he  at- 
tended the  mosque  when   he  went  to  his 
brother's  house  for  meals.    As  there  is  ill- 
feeling  between  the  two,    it  is  improbable 
that  he  would  go  to  his  brother's  house  for 
this  purpose.    He  admits  that  he  had  not 
been  to  the  mosque  in  the  month  of  Ramzan 
for  the  past  seven  or  eight  years,  or  on  the 
12th  day  of  the  Barabafat  month  all  of  which 
are  festive  occasions  among  Muhammadans. 
The  3rd  plaintiff  is  a  native  of  some  village 
in  Pudukottah  and  admittedly  he  went  for 
prayers  to  one  or  other  of  the  two  mosques 
which  are  near  his  shop  and  would  appear 
to  have  no  occasion  to  go  to  this  mosque 
in  the  Elliainmankoil  Street,  Fourth  plaint- 
iff lives  in  the  same  street  as    the  3rd.    He 
admits  that  he  had  been  employed  in  differ- 
ent places  in    different   capacities  for   the 
last   10    or  15    years    and,     consequently 
he    would     have    had    no  opportunity  oE 
going  to  this    mosque  for  prayers.    There 
are  further  other  mosques  near  his  house, 
three  within  half  a  furlong  and  one  within 
a  furlong.    He  says  he  used  to  go  to  El H- 
amman  Street  to  collect    moneys  for  his 
employer.    He,  however,  admits  that  he  has 
not  for  the  last  2J-  yearj  gone  to  that  street 
for  this  purpose.    It  is,  therefore,  found  by 
the  learned  ,Judge  and  in  fact  admitted  by 
the  learned  Vakil  for  the  appellants  that 
none  of  these  plaintiffs  can  be  said  to  be 
habitual  worshippers  of  the  plaint  mosque. 
Mr.  P.  II,  Ganapathi  Iyer  for  the  appellants 
contends  first  that  every  Muhammadan  is 
entitled  as  such  to  attend  any  mosque  for 
wordship,  and   this  may   be  at   once   ad- 
mitted to   be  correct.    He  relies  not  only 
on  this  but  also  on  the  fact  that  the  plaint- 
iffs are  residents  of  the  locality  and  his 
contention  is   that  these  two  points,  i.    e., 
right     to    worship  and    residence    in    the 
locality  taken  together   would  afford    the 
interest  acquired  under  s.  92.    The  test  to 
be  applied  has    be£n  authoritatively  laid 
down  as  far  as   we  are  concerned  by  the 
judgment  in    Ramachandra  Iyer  v.   Para- 
meswaran    Munbi  (1).    That    was   a   well- 

(1)  50  Ind    Ca«.  693;  42  M    360,  36  M  L  J   396,  25 
W,  I*.  T,  304,  9  L,  W.492,  (1919)  M  W.  N.  37Q, 


951 


known  case  in  which  Mr.  T,  R  Ramachan- 
dra  Iyer  claimed  interest    as  a  member  of 
the  Hindu  community  and,  thereby  alleged 
title  to  institute  a  suit  in  respect  of  a  temple 
in  TelUchery.    In  the  full  and  instructive 
judgment  delivered  in  that  case  by  Wallis, 
0.  J.,  the  history  of  the  provision   of  law 
is  traced  and    the    learned   Chief  Justice 
came  to  the   conclusion    that  in   order  to 
entitle  a  plaintiff  to  sue  under  the  section 
"  he  must  have    a     clear  interest    in   the 
particular  trust  over  and  above  that  which 
millions  of    his  countrymen  may  be  said 
to  have  by  virtue  of  their  religion."    The 
learned  Cheif  Justice  after  referring  to  the 
amendment  of  the  section  which  originally 
contained  the  words   "  direct  interest n  was 
of  opinion  that  even  after  the  amendment 
the  words  "interest  in  trust  "    must  still, 
in  Lord  Kldon's  words,  be  *a  clear  interest* 
that  is  to  say,  a  present    and  substantial, 
and  not  a  remote  and  fictitious  or  purely 
illusory  interest  and  further  "  that  interest 
if  the  provision  is  not  to  be  altogether  illu- 
sory, must  arise  from  some  special  relation 
in  which  the  plaintiff  stands  to  the  endow- 
ment in    question  as  compared    with  the 
whole  body  of  religious  community  through- 
out India  "    On  a  difference  of  opinion  be- 
tween the  learned  Chief  Justice  and  Kumara- 
swami  Bastri,  J,,  who  took  the  view  that 
the  right  of  worship  in  a  particular  temple 
is  sufficient  interest  under  the  section,  the 
case  was  referred    to  three  learned  Judges 
of  this    Court  one     of   whom   was  Abdul 
Rahim,  J.    Had  this  learned  Judge  said  in 
his  judgment  anything  particularly  appli- 
cable   to  mosquea    as  distinguished    from 
temples,  it  would  in  my  view  have  earned 
great  weight.    He  agreed    with    Kumara- 
swami  Sastri,  J.,  and  held   with  him  that 
the  section  gave  the  right  tc  institute  ac- 
tions to    secure  pioper    administration    of 
temples  and  mosques    to  all  persons    who 
have  a  right  of    attendance  and    worship 
at  these  religious  foundations.    The  major- 
ity of  the    Court,   however,  Oldfield  and 
Coutts  Trotter,  JJ.,    held  otherwise    and 
agreed  with    the  judgment    of    the  Chief 
Justice,    Oldfield,  JM  in  the  course  of  his 
judgment  said  :     "  Proof   of  residence  in 
the  neighbourhood  of  the    institution  will 
no  doubt  be  one  way  of  establishing  pos- 
session of  an  interest,  not  by  any  analogy 
with  the  rights  of  parishioners  in  England, 
but  on  the  simpler  ground  that  those    who 
live  near  to  the  institution    will    be  most 
likely  to    take  advantage  of  its  benefits.1' 


Dour 

It  would,  therefore,  seem  that  the  test  of 
locality  is  only  to  be  applied  in  relation  to 
actual  user  of  the  temple  or  mosque  by  the 
inhabitants  residing   close  to  it.      Coutts 
Trotter,  J.,  was  distinctly  of  opinion  that 
the  right  to  worship    in  a  temple  was  not 
equivalent  to  interest  and  refused  to  import 
the  definition  in  s.  15  of  the  Religious  En- 
dowments Act  (As  Wallis,  C.  J.,  had  refused 
to  do  before)    in  order    to    interpret  the 
meaning  of  s.  92,  C.  P.    0,    "The  learned 
Judge  continued.    "In  so  far  as  the  decided 
cases  suggest  a  limitation,  the  limitation 
suggested  is  that  of  living  in  the  neigh- 
bourhood of  the  institution  in  question  and 
habitually  resorting  thereto    for  purposes 
of  worship.1'    On  that,  one   can  be  asked 
"what  is  your  definition  of  neighbourhood?" 
"  What  is  your  definition  of  habitual  resort- 
ing ?  "    The  learned  Judge  confessed  that 
no  univei sally  applicable  formula  in  answer 
to  these     questions    could    be  discovered. 
All  that  can  be  done  is  to  say  that  the  inter- 
est required  by  the  Statute  must  be  clear, 
present  aud  substantial  and  not  a  remote 
and    fictitious    or   purely    illusory    inter- 
est   or    an    existing    interest    and  not    a 
mere  contingency.    Beyond  that  the  learned 
Judge  was  of  opinion  that  the  question  was 
a  pure  question  of   fact,  and  must  be  left 
to  the  Gourfc  to  decide  on  a   consideration 
of  the    particular   circumstancea  of   each 
case.    The  latest  case  in  the  Privv  Co'inctl 
Vaidyanatha  Ayyarv.  Swaminatha  Ayyar 
(2)  does  not  touch  the   present  matter.    It 
seems  to  me  unnecessary  in    the  light  of 
the  judgment  of  the  majority  of  Judges  in 
Ramachandra  lyerv.  Parameswaran  Munbi 
(I)  to   examine  the   earlier  cases   on  the 
subject  and  applying  that  case  to  the  facts 
of  this  case  as  previously  set  out,  it  appears 
to    me  that  it  cannot    be    said  that  the 
plaintiffs  had  anything   but  an  illusory  or 
fictitious   interest  in    this  mosque.    They 
either  did  not  worship  there  at  all    or  wor- 
shippeion  such  rare   occasions  and  such 
long  intervals  that  they   cannot  be  said  to 
have  a    real  or  clear  interest  as  required 
by  the  decision.    If,  appears  to  me  perfectly 
clear  that  Mr,  P.  R    Ganapathi   Iyer's  sug- 
gestion is    that  the  residents  of  the  sime 
town  have   the    requisite  interest  even  if 
they  do  not  worship  at-  the  particular  temple 
(2)  82  Ind.  Cas  804;  47  M.  8*4;  47  M.  L  J  361;  35 
It  L.  T.  189,  A  I.  W.  1924  (P  C.)  221;  «1924)  M.  W.  N. 
749;  10  O  &  A  L  R  1076,   26  Bom.    L.  R.  1121;  20  L. 
W.  803;  22  A,  L.  J.  983;  40  0  L   J.  454;  29  0  W.  N. 
15i;  51 1.  A.  282;  26  P.  L.  R,  1;  L.  R,  6  A,  (P.  C )  17;  1 
O.  W.  N.  617  (P,  0.). 


KA0AR  BiTCHA, 


0. 


or  mosque  in  question,  It  is,  however*  clear 
on  the  decision  in  Ramachandra  lyw  v. 
Parameswaran  Munbi  (1}  that  so  long  as 
they  have  the  right  to  do  so,  they  must  be 
shown  to  have  some  interest  over  and  above 
the  rest  of  the  residents  of  the  locality  of 
their  own  community  who  are  entitled  as 
members  of  that  community  to  take  part 
in  the  worship  conducted  in  the  institution. 
This  the  plaintiffs  are  not  shown  to  pos- 
sess. We  are  referred  to  one.  decision  in 
Garuda  Sanyasayya  v.  Nerdla  Muthemma 
(3)  where  the  point  arose  but  is  dismissed 
in  three  lines  of  the  judgment  It  was  a 
case  of  choultry  and  the  learned  Judges 
held  that  as  the  plaintiffs  were  residents 
in  the  locality  in  which  the  choultry  was 
situated  and  were  members  of  the  com- 
munity for  whose  benefit  the  charity  was 
founded,  it  was  sufficient  to  give  them 
interest  to  institute  a  suit  for  its  manage- 
ment, Wallis,  O,  J.,  was  one  of  the  Judges 
who  decided  that  case  which  was  prior  to 
this  daemon  ia  Ramachandra  /tyer^  v. 
Parameswaran  Munbi  (i).  In  my  opinion, 
therefore,  the  learned  Judge  in  this  case 
was  right  in  dismissing  the  suit  on  the  point 
of  want  of  interest  in  the  plaintiffs. 

It  is  unnecessary  in  the  viewj  take  on 
this  point  to  discuss  the  question  of  the 
charges.  But  I  may  add  that  having 
carefully  considered  the  matter  I  should,  if 
necs3sary,  be  of  opinion  that  none  of  the 
charges  have  been  established  agiinst  the 
defendant.  On  all  these  grounds*  therefore, 
it  appears  to  me  that  the  appsal  must  be 
dismissed  with  costs. 

Madhavan  Nalrs  J.— This  appeal 
by  the  plaintiffs  arises  in  a  suit  instituted 
by  them  under  s  92  of  the  0.  P  0.  in 
which  they  prayed  for  the  removal  of  the 
defendant  from  the  management  of  the 
plaint  musjid  (mosque)  and  its  endow- 
ments for  the  appointment  of  new  trustees, 
for  the  taking  of  accounts  and  for  a 
scheme  for  the  pi'oper  management  of  the 
mosque.  The  plaint  mosque  is  situated  in 
EtliammankoU  Street,  Tanjorft,  and  was 
founded  by  Bippu  Vaidyar  in  Hijiri  1243 
(1847-1318).  On  the  1st  of  November  1879, 
Amir  Khan  S  ihib,  the  grandson  of  Bappu 
V;tidyar  and  last  of  the  family  of  the 
original  founder  made  a  settlement,  Ex.  I, 
by  which  he  end>wed^  the  mosque  with 
some  property  and  appointed  his  foster-son 
"as  the  person  entitled  to  enjoy  the  proper- 

(3)  48  Ind,  Cas.  740,  0  L.  W.  1;  33  M,  L,  J.  681;  25 
M.  L,  T.  86, 


L  0,  1986] 


DOST  MtJtUMlUD  V,  KADIS  BJLTCfiA. 


953 


ty  endowed  for  charity  and  to  carry  out  the 
charity  by  means  of  its  income11  specifying 
in  the  deed  the  main  objects  for  which  the 
inc6r$e  of  the  properties  was  to  be  utilised. 
The  plaintiffs  alleged  in  their  plaint  that 
they  resided  close  to  the  mosque  and  were 
interested  in  it  and  in  the  trusts  relating 
thereto,  that  the  defendant  was  not  the  de 
jure  or  rightful  trustee,  that  he  had  com- 
mitted various  breaches  of  trust  and  that,  in 
consequence  he  should  be  removed  from  the 
management  of  the  mosque  and  its  pro- 
perties, The  defendant  in  his  written 
statement  pointed  out  that  theplaintiffs  were 
not  residents  of  the  locality,  that  they  had 
interest  in  the  plaint  mosque  as  contem- 
plated by  s,  92  of  the  C.  P.  C.  that  he  was 
"not  only  the  de  facto  but  the  de  jure  trustee 
also"  and  that  he  was  not  guilty  of  any  of 
the  breaches  of  trust  specified  in  the  plaint. 
Various  issues  were  framed  by  the  Subordi- 
nate Judge  dealing  with  the  allegations 
in  the  pleadings,  but  the  appellants, 
confined  their  arguments  only  to  the 
finding  of  the  Subordinate  Judge  as 
regards  five  issues  these  being.  —  Issue 
I,  "whether  the  plaintiffs  have  suffi- 
cient interest  in  the  plaint  mosque  and  is 
the  suit  sustainable/* 

Issue  II  "whether  the  defendant  is  not  a 
de  jure  trustee?11 

Issue  V  "whether  item  3  of  Sch.  A  of 
the  plaint  ever  belonged  to  the  trust  ?" 

Issue  VIII  "  whether  the  defendant 
has  committed  all  or  any  of  the  breaches 
of  the  trust  alleged  in  the  plaint  and  is 
he  liable  to  be  removed  from  the  trustee- 
ship ?"  and 

Issue  IX  "  whether  a  scheme  is  ne- 
cessary and  if  so,  on  what  terms?'1 

The  learned  Subordinate  Judge  found 
against  the  plaintiffs  on  all  these  issues 
and,  in  consequence,  dismissed  the  plaint- 
iffs' suit. 

The  first  question  to  be  considered  is 
whether  the  plaintiffs  or  any  of  them  have 
the  "interest"  in  the  trust  within  the  mean- 
ing of  s.  92  of  the  0.  P.  CL,  entitling  them 
to  maintain  the  suit.  As  the  decision  of 
this  question  will  to  some  extent  depend 
upon  the  facts  of  the  case,  it  is  necessary 
to  state  in  some  detail  the  evidence  bearing 
on  it  and  my  conclusion  thereon  before 
dealing  with  the  cases  relied  on  by  the 
Appellant's  learned  Vakil.  ,  The  1st  plaint- 
iff who  is  examined  as  the  10th  witness  for 
the  plaintiff  has  been  in  Government 
service  since  1883,  and  since  1890  he  is 


employed  in  the  District  Court  of  Tfcnjor* 
as  a  dufadar.    His  place  of  residence  since 
1902   is  Ohunnombukara  Street  which   is 
five  or  six  fin  longs    off    from    the  plaint 
mosque  situated  in   Ellaimmankoil    Stieet. 
He  states  that  his  grandfather  had  a  house 
opposite  to  the  mosque  and  he  lived   in  it 
for  thirty  years  and  has  then  gone  often  and 
offered  prayers  in  the  mosque.    The  latter 
statement  is  not  supported  by  independent 
evidence.     His  grandfather's      house    has 
been  sold  to  the  defendant's  brothers     He 
married  in  1891  his  second  wife  who  has  a 
house  in   Elliammankoil  Street.  When  she 
lived  with  her  mother  for  seven  or  eight 
years  on  account  of  her  quarrel  with  his  first 
wife,  lie  states  that  he  used  to  visit  her  and 
then  used  to  go  to  this  mosque  in  the  morn- 
ing on    Sundays  and    in  the    evening  on 
other  days.    He  admits  that  there  are  two 
mosques  within  about   two  furlongs  from 
his  house     As  duffadar  he  states  that  he 
was  to  be  in  Court  at  10-30  A.  M,  and  until 
such  time  as  the  District  Judge  eits  and 
that  while  on  duty  in  Court  he  used  to  make 
prayer  only  if  he  had   time.     Although  ac- 
cording to  their  religion   the  Muhammadar  s 
were  to  offer  prayeis  five  times  a  day,  tl  e 
evidence  shows  that  it  is  not  necessary  to 
make  these  prayers  in  the  mosque  as  th'y 
may  be  offered   at  any  place  where   th<  y 
happen  to    be  at  the  time.    Though  this 
witness  says  that  he  has  been  offering  pray- 
efs  in   this  mosque  regularly,  the  evidence 
of  the  defendant  is  that  this    \\itness   has 
never  gone  to  the  plaint  niosque  for  offer- 
ing  prayers.    It  is  to  be  noticed  that  there 
are  mosques  which  are  nearer  to  his  present 
place  of  residence  than  the  plaint  mosque. 
The  evidence  in  the  case  seems  to  suggest 
that  though  he  may  have  offered  prayers  in 
this    mosque,     he    might    have    done    so 
only  on  those  occasions   when  he   happened 
to  visit  his  second  wife  when  she  lived  in 
her  mother's  house.    It  may  be  noticed  that 
he  has  till  now  instituted  four  scheme  suits 
and  he  does  not  appear  to    be  a  man  of 
means. 

The  2nd  plaintiff  is  examined  as  the 
plaintiff's  first  witness.  He  has  been  hying  in 
Pambatti  or  Kalapathi  Street  out  side  the 
Fort  away  from  tl  e  musjid  for  the  past  seven 
or  eiuht  yeais.  Previous  to  that,  it  is  true,  he 
lived  in  Survappa  Lane  ahoutone  and  a  half 
furlongs  from  this  mosque,  but  he  does  not 
seem  to  have  been  a  regular  worshipper  in 
the  mosque.  He  states  that  he  used  to  go  to 
the  plaint  mosque  for  prayer  once  in  iu  two 


954 


POST  MUHAMMAD  V.  KADAB  BATOHA. 


[«2 1  0. 1926J 


or  three  days  for  the  past  seven  or  eight  years. 
It  is  difficult  to  believe  that  he  speaks  the 
truth  when  he  makes  this  statement.  He 
admits  that  there  is  in  the  street,  in  which 
he  lives  a  musjid  about  a  hundred  yards  off 
from  his  house,  and  there  are  also  other 
mosques  nearer  to  his  house.  No  special 
reason  is  assigned  for  his  going  to  the  plaint 
mosque  for  worship  than  to  the  mosques, 
nearer  to  his  residence.  He  states  that  he 
has  a  shop  in  the  Ayyankadai  near  the 
mosque  that  his  brother  lives  in  the  fourth 
house  from  the  plaint  mosque  and  that  he 
used  to  go  to  his  brother s  house  from  his 
shops  for  meals.  It  is  suggested  in  the  evi- 
dence of  D.  W.  No.  2  hip  brother  that  there 
is  ill-feeling  between  the  two  brothers  and 
it  is  hardly  likely  that  he  would  have  taken 
meals  in  his  brother's  house.  This  witness 
admits  that  he  has  not  gone  into  the  musjid 
during  the  past  seven  or  eight  years  in  the 
month  of  Romzan  or  on  the  twelfth  day  of  the 
Barahafat  *month—  both  important  festive 
occasions  in  Muhammadan  mosques.  On  the 
defendant's  side  it  is  stated  that  this  witness 
used  to  go  very  rarely  to  the  plaint 
mosque  for  offering  prayers.  The  witness 
states  that  he  has  not  been  on  speaking 
terms  with  the  defendant  in  this  case  for 
the  past  ten  or  twelve  years  owing  to  ill- 
feeling.  It  appears  to  me  from  this  evi- 
dence that  this  witness  might  have  only 
occasionally  visited  the  mosque  for  offering 
prayers. 

The  3rd  and  4th  plaintiffs  are  examined  as 
the  8th  and  9fch  witnesses  for  the  plaintiffs. 
Their  evidence  is  not  of  much  importance, 
Plaintiff  witness  No.  8,  a  native  of  Puddu- 
kottah  is  a  trader  and  lives  near  Pambatti- 
kara  Street,  in  which  there  is  a  mosque  and 
near  which  also  there  is  another  one.  He 
admits  that  he  used  to  offer  prayers  there. 
He  has  no  dealings  in  Ellaiamankoil  Street 
in  which  the  plaint  mosque  is  situated  and 
his  occasions  to  go  there  are  few.  He  does  not 
remember  how  many  years  ago  he  went  to  the 
plaintmosque  first.  Plaintiff  witness  No.  9  also 
like  the  other  witnesses  says  that  he  offered 
prayers  in  this  mosque,  but  it  is  extremely 
doubtful  if  he  has  so  done  except  very 
rarely.  He  lives  away  from  the  mosque  and 
has  *  been  employed  in  different  places 
which  would  suggest  that  he  would  have 
had  no  opportunity  to  go  to  this  mosque. 
There  are  mosques  near  his  place  of  resid- 
ence. He  states  that  he  went  inside  this 
mosque  one  and  a  half  or  two  years  ago. 

My  conclusion  from  the  summary  of  the 


evidence  given  above  is  that,  though  the 
plaintiffs  may  be  said  to  reside  in  the 
neighbourhood  of  the  mosque,  they  are  not 
habitual  worshippers  in  it,  nor  are  they 
in  any  manner  specially  interested  in 
the  mosque,  though  as  Muhammadans 
they  like  tho  others  have  admittedly 
a  right  to  offer  prayers  there.  There  are 
mosques  nearer  their  places  of  residence 
which  makes  it  unlikely  that  they  would 
have  gone  to  this  mosque  for  worship 
frequently.  The  evidence  also  suggests  that 
the  plaintiffs  in  instituting  this  suit  are  not 
actuated  by  considerations  relating  to  the 
improvement  in  the  administration  of  the 
mosque  and  its  properties. 

In  these  circumstances,  the  question  of  law 
to  be  considered  is  whether  the  plain  tiffs  have 
the   interest  in  the  trust  contemplated  by 
s.  92  of  the  C.  P.  C.    What  is  the  nature  of 
that  "interest"  has  been  elaborately  con- 
sidered in  the  Letters  Patent    Appeal   in 
Ramachandra      Iyer     v.     Parameswaran 
Munbi  (1).  In  that  case  a  suit  was  instituted 
under  s.  92  of  the  C.  P.  0.  for  the  removal 
of  the  trustees  of  a  temple  at   Tellicherry 
and  for  other  reliefs.    One  of  the  plaintiffs 
was  Mr.  T.  R.  Ramachahdra  Iyer.    His  in- 
terest in  the  trust  entitling  him  to  institute 
the  suit  was  not  based  on  the  fact  that  he 
had  worshipped    in  that  temple    once  or 
twice  when    he  went  to  Tellicherry  in  his 
professional    capacity   some   eight    or  ten 
years  ago,  nor  upon  the  fact  that  he  was 
the  President   of  the  Dharama  Rakshana 
Snbha  but  solely  upon  his  right  which    he 
as  a  Hindu  has  of  worshipping  in  every 
Hindu  temple  throughout    India.    It  was 
there   held  that  the  mere  right  of  a  Hindu 
plaintiff  to  worship  in    i  temple  is  not  such 
an  interest  in  the  trust  as  to  entitle  him   to 
sue  under  s.  92.    It  was  argued  that    every 
Hindu  temple  must    bfe   presumed   to   be 
dedicated  for  the  use  of  all  Hindus  and  that 
each  of  the  individuals  has,  therefore,  an 
interest  in  the  trust  of  every  Hindu  temple. 
This  argument  was  overruled  by  Wallis,  0. 
J  ,  who  after  an  exhaustive  examination  or 
the  history  of  the  section  and  of  the  case  law 
relating  to  it  held  that  interest  in  the  trust 
must  be  "a  clear  interest"  that  is  to  say  "a 
present  and  substantial  and  not  a  remote  or 
fictitious  or  purely  illusory  interest,"  and  also 
that  that  interest  "if  the  provision  is  not  to 
be  altogether  illusory  must  arise  from  special 
relation  in  which  the  plaintiff  stands  to  the 
endowment  in  question  as  compared  with  the 
whole  body  of  religious  community  through 


[92 1,  0. 1926] 


DOST  MUHAMMAD  t).  KADAR  BATCH  A. 


955 


out  India.1*    His  Lordship  also  expressed 
the  view  that  "the  bare  possibility,  how- 
ever, remote,  that  a  Hindu  might  desire  to 
resort  to  a  particular  temple  gives  him  an 
interest  in  the  trust  appears  to  defeat  the 
object  with  which  the  Legislature  inserted 
these  words  in  the  section.'*    The  majority 
of  the  learned  Judges  who  heard  the  Letters 
Patent  Appeal  on  a  difference   of    opinion 
between   the   learned    Chief   Justice   and 
Kumaraswami  Sastri,  J.,  accepted  the  opinion 
of  the  learned  Chief  Justice.    As  his  judg- 
ment shows,  the  observations  therein  on  the 
question  before  me  apply  with  equal   force 
to  the  case  of   Muhammadans  worshipping 
in  Muhammadan  mosques  also.    In  Vaidya- 
natha  Ayyar  v.  Sawaminatha  Ayyar  (2)  their 
Lordships  of  the  Privy  Council  expressed 
approval  of  the  opinion  of  Wallis  C,  J.  al- 
ready quoted.    In  that  case  the  suit  under 
8.  92,  C.  P   C.  related  to  a  chattaram  and  its 
properties  and  one  of  the  questions  for  de- 
cision was  whether  the  plaintiffs  had    the 
interest  in  the  trust  contemplated  by  that 
section.    On  that    point    their   Lordships 
were  of  opinion  that  the  fact  that  "the  plaint- 
iffs are  descendants  although  only  in  female 
lines  of  the  founder  of  the  chattaram  gave 
them  an  interest  in  the  proper  administra- 
tion of  the  trust  sufficient  to  enable  them 
to  maintain  this  suit,  although  they  them- 
selves may  never  find  it  necessaiy  to   use 
the  chattaram  as  a  rest  house  or  to  obtain 
food  there'*.      Mr.  Ganapathi  Aiyar   does 
not  call  into  question  the  correctness  of  the 
decision  in  Ramachandra  lyerv.  Parames- 
waran  Mimbi  (1),  but  argues  that  the  case 
is  an  authority  for  the  proposition  that,  if 
the  plaintiffs  reside  in  the  neighbourhood 
of  the  suit  institution  such  residence  coupl- 
ed with  their  admitted  right  to  worship 
therein  necessarily  gives  them  the  interest  en- 
titling them  to  institute  the  suit  under  s.  92, 
0.  P.  C.    In  support  of  this  argument  refer- 
ence is    made  to    certain  passages  in  the 
judgment  of  Oldfield,  J.,  and  of  Coutts- 
Trotter,  J.,  but  on  examination  it  will  be 
found  that  these  passages  do  not  lend  any 
support  to  the  argument  advanced  by  the 
learned    Vakil    Oldfield,  J.,   states,   that 
"proof  of  residence  in  the  neighbourhood 
of  the  institution  will  no  doubt  be  one  way  of 
establishing  possession  of  an  interest,  not  by 
any  analogy  with  the  rights  of  parishioners 
in  England,  but  on  the  simpler  ground  that 
those  who  live  near  to  the  institution  will 
be   most   likely  to  take  advantage  of  its 
benefits."    I  have  no  doubt  that  by  this 


statement  the  learned  Judge  did  not  mean 
to  lay  down  as  a  proposition  of  law  that 
residence  in  the  locality  coupled  with  the 
admitted  right  to  worship  in  a  temple  or 
mosque    means  possession    of   an  interest 
within  the  meaning  of  s.    92.    The  context 
makes    it  clear  that,      according  fto    the 
learned  Judge's  view,  proof  of  residence  in 
the  neighbourhood  will  be  one  of  important 
facts  to  be  considered  in  an  enquiry  regard- 
ing the  question  whether  a    plaintiff  who 
has  a  right  to  worship  possesses  the  inte- 
rest in  the  trust  contemplated  by  the  section. 
The  same  is  the  view  of,  Coutts-Trotter,  J., 
also.    It  seems  to  me  that  to   a  very  large 
extent      the     question    as     to      whether 
any  particular   person  has  or  has  not  an 
interest  within  the  meaning  of  s.  92,  C  P. 
C.  is  mainly  a  question  of  fact  to  be  decided 
on  a  consideration  of  the  circumstances  of 
each  case.    The  question  was  so  treated  in 
Cfopala  Krishnier  v.  Ganapathy  Aiyar  (4) 
for  the  learned  Judge,  Sadasiva  Iyer,  who 
delivered  the  judgment,  states  thus     'The 
first  question  argued  in  this  appeal  is  whe- 
ther the  plaintiffs  have  got  the  necessary 
substantial  interest    to  institute  the    suit 
having  regard  to  the  Full  Bench  decision  in 
Ramachandra  Iyer  v.  Parameswaran  Munbi 
(1)     On  the  evidence  taken  on  remand,    I 
am  clearly  of  opinion  that    the  plaintiffs 
have  got  such  a  substantial  interest.1'    The 
decision  in  Garuda  Sanyasayya  v.  Nerella 
Muthemma  (3)    also  does   not  support  the 
position  taken  up  by  the  appellants.    Deal- 
ing with  the  question  whether  the  plaintiffs 
have  the  interest  to  institute  the  suit  under 
s   92    Wallis,  C.  J.  and  Seshagiri  Iyer,  J. 
state  "They  are  residents  of  the  locality  in 
which    the   choultry   is    situated    and  are 
members  of  the  community  for  whose  bene- 
fit the  charity  was  founded    In  our  opinion, 
these  facts,  give  them  sufficient  interest   to 
institute  the  suit."  It  is  clear  that  residence 
in  the  locality  is  to  be  treated  only  a$  a 
question  of  fact  from  which  an  inference 
may  be  drawn  regarding  the  question  whe- 
ther a  plaintiff  who  has  a  right  to  worship 
in  a  temple  or  mosque  has  or  has  not  an 
interest    to  institute  the  suit.    The  other 
decisions  quoted    to  us  need  not  be   dis- 
cussed as  all  of  them  have  been  elaborately 
considered  by  the  learned  Chief  Justice  in 
Ramachandra  Iyer  v.  Parameswaran  Munbi 
(I)  in  dealing  with  the  history  of  s.   92  of 
the  C.  P.  C,    I  think  that  the  facts  of  the 

(1)  58Ind    Gas.  124,   12  L  W,  772  at  p.  775,    (1920) 
M  W.  N  478,  ' 


956 


D03T  MUHAMMAD  V,  KADAR  BATCflA* 


[9210,1928] 


case  clearly  show  that  though  the  plaintiffs 
reside  in  the  neighbourhood,  they  really 
have  no  present  aad  substantial  interest  in 
the  suit  mosque.  Their  interest  in  it  is 
onlv  fictitious  <>r  illusory.  Being  Muhain- 
mvians,  they  are  no  doubt  entitled  to  wor- 
ship in  the  mosque,  but  they  are  only  occa- 
sional worshippers  and,^  in  my  opinion,  do 
not  possess  *'frhe  interest*'  entitling  them  to 
institute  the  suit  under  s.  92,  C.  P.  0.  as 
explained  in  Ramachandra  Iyer  v.  Para- 
mefnvaran  Munbi  (1). 

The  question  raised  by  Issue  II  is 
whether  the  defendant  is  not  a  de  jure 
trustee.  The  learned  Subordinate  Judge 
found  on  this  issue  against  the  plaintiffs. 
The  case  for  the  appellants  on  this  issue 
presented  before  us  by  their  Vakil  is  some- 
what different  from  the  one  raised  by  them 
in  their  plaint  and  considered  by  the  learn- 
ed Subordinate  Judge.  Paragraph  7  of 
the  plaint  states,  4'the  defendant  was  ap- 
pointed by  the  said  Amir  Khan  Sahib  to 
be  a  person  entitled  to  keep  the  enjoyment 
of  the  properties  endowed  from  the  chaiity 
and  to  conduct  the  charities  out  of  the 
income  of  the  same.  The  defendant  is  not 
appointed  to  be  the  trustee  of  the  musjid 
assuming  such  appointment  would  be  valid- 
ly  made,  but  he  has  been  made  de  facto 
trustee  of  the  musjid  ever  since  the  arrange- 
ment evidenced  by  the  said  document 
and  ever  since  Amir  Khan  Sahib's  death  " 
No  doubt  the  question  as  regards  the  valid- 
ity of  his  appointment  as  trustee  is  refer- 
red to  by  the  defendant  in  the  written 
statement  but  the  case  raised  by  the  plaint- 
iffs (as  may  be  seen  from  the  paragraph 
quoted)  is  this,  namely,  that  Amir  Khan 
Sahib  did  not  appoint  the  defendant  as 
trustee  of  the  musjid  but  only  appointed 
him  "to  keep  the  enjoyment  of  the  proper- 
ties endowed  for  the  chaiity  and  to  conduct 
the  charities  out  of  the  income/'  thereby 
drawing  a  distinction  between  a  *  trustee  of 
the  mosque  and  a  manager  of  the  pro- 
perties,1' This  argument  was  overruled  by 
the  Subordinate  Judge  and  has  not  been 
availed  of  before  us  by  the  learned  Vakil 
as  obviously  Ex.  I  the  deed  of  settlement 
doe=i  not  support  it  and  there  is  no  other 
evidence  to  justify  it.  What  has  been  ar- 
gued before  us  is  this,  namely,  that  Amir 
Khan  Sahib  had  no  power  to  appoint  the 
defendant  as  his  succepsor.  It  is  true  that 
as  foster-son  the  defendant  is  not  entitled 
to  lay  any  hereditary  claim  to  the  trustee- 
ihip,  but  Amir  Khan  Sahib  was  himself  a 


muttawalli  and  it  is  a  well-known  principle 
of  Muhammadan  Law  that,  in  the  absence 
of  the  rules  laid  down  by  the  founder  of 
the  mosque,  the'  muttawnLi  for  the  time 
being  may  valid ly  appoint  a  successor  to 
himself.  The  present  defendant  was  so 
appointed  in  1879  and,  in  my  opinion,  he  is 
a  validly  appointed  trustee, 

Issue    V    raised  the  question,    whether 
item  3  ofSch.  A  of  the  pla;nt  ever  belong- 
ed to  the  trust  ?    This  item  consists  of  two 
shops.    The  appellants'  case  is  that  they 
formed  the  mosque  property  and  that  the 
defendant  sold  them  to  his  brother  against 
the  interest    of   the  trust,  the   defendant's 
case  being  lhat   they  were    his   absolute 
private  property.    It  is  conceded  that  there 
is  no  document  showing  that  these  shops 
ever  belonged  to  the  mosque.    It  is  admit- 
ted that  the  mosque  has  no  other  properties 
except  those  left  to  it  by  Amir  Khan  Sahib 
under  Ex.   I  and   it    is  not  disputed  that 
these  two  shops  are  not  included  in  Ex.  I. 
In  this  connection  our  attention  has  been 
drawn  to  Exs.  II,  III,  IV,  V  and  V  (a).    In 
these  documents  which  dealt  with  a  house 
which  was  mortgaged  and  afterwards  sold, 
Khadar  Batcha's  shops    (viz.,  theee  shops 
belonging  to  Khadar  Batcha  the  defendant) 
are  described  as  one  of  the  boundaries  and 
the  1st  plaintiff  has   attested  them.    It  has 
been  argued  before  us  that  these  documents 
are  legally  inadmissible  in  evidence,  but 
this  objection  does  not  seem  to  have  been 
taken  in  the  lower  Court,  nor  has  it  been 
raised  in  the  grounds  of  appeal  before  us. 
Even    if   we  ignore  these    documents,    it 
follows  from  what    has  been  pointed  out 
above  that  these  shops  do  not  belong  to  the 
mosqne.    The  plaintiffs  rely  on  a  recital  in 
Ex    XVI  the    sale-deed  under    \vhich  the 
defendant  conveyed  these  two  shops  to  his 
brother  Moideen  Batcha  (D.  W.  No.  4).    The 
recital  is  that  the  shops  in  question  "were 
originally  enjoyed    by   Amir  Khan  Sahib 
and  are  now  enjoyed  by  me."    In  view  of 
the  admitted  fact  that  all  the  properties 
belonging  to  the  mosque  wers  endowed  to 
it  under  Ex.  I  and   that  Ex.  I  does  not  con- 
tain the  shops  in  question,  the  statement 
in  Ex  XVI  is  not  ns  important  as  it  might 
otherwise  be.    The  defendant  offers  his  own 
explanation  and  that  has  been  accepted  by 
the    Subordinate    Judge.     The    plaintiffs 
themselves  have  no  personal  knowledge  of 
the  endowment  of  the  shops  of  the  mof  que. 
In  my  opinion,  there  is  no  reliable  evidence 
on  the  plaintiffs*  side  to  show  that  these 


[92  I.  0. 1926] 


DOST  MUHAMMAD  V.  KADAR  BATCHA, 


957 


two  shops  belonged  to  the  mosque.  In  view 
of  the  admitted  facts  of  the  case  and  Ex.  1, 
I  am  satisfied  that  the  learned  Subordinate 
Judge  has  arrived  at  a  coirect  conclusion 
on  this  issue. 

Issue  VIII  relates  to  the  question  whe- 
ther the  defendant  has  committed  all  or 
any  of  the  breaches  of  trust  alleged  in  the 
plaint  and  is  he  liable  to  be  removed  from 
the  trusteeship  ?  In  the  plaint  fourteen 
specific  breaches  of  trust  aie  alleged  against 
the  defendant  but  the  learned  Vakil  for  the 
appellants  in  his  arguments  bel'oie  us  has 
confined  his  attention  mainly  to  charge  (1) 
namely,  that  "no  proper  accounts  are  main- 
tained by  the  defendant."  Even  here  he 
did  not  deal  with  all  the  various  circum- 
stances discussed  by  the  learned  Subordi- 
nate Judge  under  this  head.  He  had  limited 
his  arguments  mainly  to  a  consideration  of 
the  income  and  expenditure  of  the  mosque 
and  the  general  irregularities  in  the  keep- 
ing of  accounts  by  the  defendant.  As  re- 
gards the  income  and  expenditure  the  case 
of  the  plaintiffs  is  that  the  lands  should 
yield  about  500  kalams  a  year  or  at  least 
200  kalams  after  1911  as  spoken  to  by  the 
defendant  himself  and  that  the  expenditure 
would  at  the  highest  even  according  to  the 
defendant  amount  to  only  about  Re.  300 
while  the  evidence  on  the  defendant's  side 
is  that  the  income  would  be  about  Rs.  250 
all  of  which  had  to  be  spent  for  the  ex- 
penses of  tKe  mosque.  The  evidence  on  the 
side  of  the  plaintiffs  as  regards  the  income 
from  the  plaint  lands  ia  extremely  unsatis- 
factory. On  this  point  we  have  been  refer- 
red to  the  evidence  of  P.  W.  No.  1.  He 
states  that  the  lands  will  yield  an  annual 
income  of  500  kalams  of  paddy,  that  he  saw 
the  lands  for  the  first  time  two  or  three 
years  prior  to  the  institution  of  the  suit 
when  he  went  to  the  locality  to  ascertain 
their  condition.  He  went  and  saw  the 
lands  along  with  two  or  three  otheis,  but 
he  does  not  remember  them  now.  At  the 
time  when  he  saw  them  the  lands  were  not 
cultivated.  From  what  he  saw  he  could 
not  say  whether  the  lands  were  in  gcod 
or  bad  condition.  He  does  not  know  per- 
sonally the  income  of  these  lands.  It  is 
clear  that  this  witness  knows  nothing  about 
the  lands  in  question,  least  of  all  about  the 
income.  According  to  this  witness  it  would 
cost  Rs  500  to  conduct  all  the  charities  men- 
tioned in  Ex.  I.  Plaintiff  witness  No.  10  makes 
a  vague  statement  that  the  net  income  of 
thtse  lands  per  year  would  be  Rs,  700  for 


the  past  eight  or  ten  years  and  that  prior  to 
it  the  income  would  be  Rs.  600  or  Us.  500. 
He  does  not  give  particulars  jufalifymg 
his  statements.  He  states  that  for  the  i  a&t 
seven  or  eight  yeais  paddy  is  sold  at  iiom 
Its.  2-12  to  Rs.  4  pei  Lalam,  but  there  ib  no 
independent  evidence  to  support  it  Acccid- 
ing  to  him  the  expenses  \sould  come  to 
over  Rs.  600  in  all  per  annum.  In  the 
absence  of  leliable  and  disinterested  evi- 
dence on  the  side  of  the  plaintiffs,  ue  ha\e 
to  accept  the  evidence  given  on  the  defend- 
ant's side.  Heie  it  is  peitinent  to  iemaik 
that  the  appellants  themselves  have  sought 
to  support  their  case  more  by  relying  upon 
the  evidence  given  by  the  defence  than 
on  the  evidence  given  by  the  plaintiffs  own 
witness.  It  is  admitted  that,  when  the 
defendants  took  up  the  management  of  the 
trust  in  1879,  the  lands  of  the  mosque  con- 
sisted of  both  nanja  and  punja,  that  the 
punja  lands  yielded  nothing  and  that  he 
connected  them  into  nanja  lands  by  spend- 
ing his  own  money  and  thus  made  the  lands 
more  valuable  for  the  trust.  As  D  W,  Mo.  1 
the  defendant  states,  "When  I  took  up 
the  management  the  nanjas  yielded  only 
60  or  70  kalams  and  the  punja  lands  did  not 
yield  anything.  Then  one  kaiam  of  paddy 
was  sold  at  from  14  annas  to  Rs.  1-1-0.'* 
He  btates  that  <lfrom  19  il  onwards  these 
lands  yielded  on  an  average  200  or 
210  or  220  kalams.  As  the  price  of  the 
paddy  is  now  high  the  income  of  these 
lands  would  now  be  enough  to  meet  the 
expenses  in  the  mosque.  But  previously 
when  paddy  was  sold  at  a  low  price,  I  was 
spending  my  own  money  for  the  expenses  of 
the  mosque.  The  price  of  the  other  articles 
has  also  arisen  just  like  paddy."  Defendant 
witness  No.  3  states  thathe  does  not  know  the 
income  ;  but  approximately  a  sum  of  Rs  SCO 
or  Rs.  SOO  would  be  spent  in  the  mosque.  De* 
fenclantwitnessNo  6*tateslhatthedefendant 
\\ould  spend  in  all  about  Rs.  200  or  Rs  250 
a  year  and  the  lands  would  also  yield  only 
Rs.  2CO  or  Rs.  250.  The  finding  of  the  Sub- 
ordinate Judge  that  the  accounts  show  that 
the  defendant  has  advanced  a  sum  of 
Rs  4,027-6  0  to  the  mosque  has  not  been 
challenged  befoie  us,  It  is  true  that  the 
defendant  has  appropriated  Rs.  829-6-0 
from  the  trust  funds  towards  his  advance, 
The  defendant  seems  to  have  entertained 
a  mistaken  idea  that  as  the  charity  is  hia 
own,  he  has  the  rights  to  do  additional 
charities  at  his  own  expense  and  afterwards 
appropriate  the  same  from  the  lands  at  the 


958 


DOST  MtlttAMMAD  V.  KADAfe 


[0*I0.1»«JJ 


time  when  they  yielded.  The  general 
effect  of  the  evidence  on  the  defendant's 
side  is  that  the  trust  is  evidently  a  poor 
one  owning  only  a  few  properties  which 
were  not  worth  very  much  and  that  the 
defendant  carried  on  the  management  as 
best  as  he  could  making  both  end  meet. 
Whenever  there  was  a  deficiency  of  incoine 
he  supplied  funds  from  his  own  pocket. 
In  my  opinion,  it  has  not  been  proved  that 
in  any  particular  year  or  for  any  number 
of  years  there  remained  any  appreciable 
surplus  from  the  income  of  the  temple 
lands  after  meeting  the  ordinary  and  the 
extraordinary  expenses  of  the  mosque  and 
its  reparis. 

As  regards  the  accounts,  what  has  been 
pressed  before  us  by  the  learned  Vakil  for 
the  appellants  is  that  they  have  been  kept 
very  irregularly.  The  defendant's  own  evi- 
dence discloses  many  irregularities  in  the 
keeping  of  the  accounts.  It  is  admitted 
amongst  other  things  that  he  did  not  write 
these  accounts  daily  but  only  once  a  month, 
that  he  destroyed  the  papers  wherefrorn 
the  entries  in  the  account-books  were 
copied,  that  he  has  misled  up  his  own  funds 
with  those  of  the  trust  and  that  he  does 
not  know  to  write  the  accounts  properly. 
These  various  irregularities  are  referred 
to  and  dealt  with  by  the  learned  Subordi- 
nate Judge  in  paras.  5i  and  52  of  his  judg- 
ment. Though  the  conduct  of  the  defendant 
in  this  matter  cannot  be  approved  by  us, 
we  have  no  doubt  that  the  irregularities 
pointed  out  in  the  circumstances  of  this 
case  do  not  justify  us  in  holding  that  he 
should  be  removed  on  that  account.  I  have 
examined  the  accounts  of  the  mosque  rang- 
ing from  the  year  1879  and  in  the  ordinary 
course  of  things  it  will  be  too  much  to  ex- 
pect one  to  preserve  all  the  vouchers  for 
the  various  entries  during  this  long  period 
of  about  fifty  years.  It  is  true  that  the 
accounts  are  written  in  a  very  small  book, 
but  we  have  to  remember  that  the  trust 
is  also  a  small  one  with  a  small  income 
arising  only  from  a  single  source  and  with 
expenses  which  do  not  range  over  many 
heads.  Entries  on  account  of  the  income 
and  expenses  cannot,  therefore,  be  very 
large  in  number  and  this  must  account 
for  the  smallness  of  the  account-book.  The 
charge  that  the  account-book  has  been 
written  up  after  the  institution  of  this  suit, 
though  suggested  in  the  course  of  the 
argument,  has  not  really  been  pressed  be- 
fore us  and  then*  is  very  little  evidence  to 


support  it.  The  important  facts  to  be  no-< 
ticed  are  that  no  specific  misappropriation 
by  the  defendant  of  the  trust  funds  has 
been  pointed  out,  that  it  has  not  been  shown 
that  there  is  any  clear  false  entry  in  the 
accounts  or  that  there  has  been  a  failure  on 
the  part  of  the  defendant  to  enter  any  item 
of  income  in  them.  The  correctness  of  the 
entries  regarding  the  expenditure  has  .not 
been  challenged.  In  his  report  in  examina- 
tion by  the  Court  the  defendant  states  that 
he  does  not  use  the  trust  funds  for  his 
private  purposes.  The  correctness  of  this 
statement  has  not  been  disputed.  Though 
the  account-book  has  not  been  kept  in  an 
ideal  manner,  the  defendant  has  not  mis- 
appropriated any  of  the  funds  of  the  trust 
and  has  not  written  up  false  accounts.  He 
has  admittedly  spent  large  funds  of  his 
own  for  the  purposes  of  the  trust.  ID  these 
circumstances,  I  do  not  think  that  the 
irregularities  pointed  out  are  sufficient  to 
remove  the  defendant  from  the  management 
of  the  trust. 

The  next  charge  of  breach  of  trust  has 
been  pressed  against  the  defendant  is  that 
he  has  broken  the  direction  in  Ex.  I,  the 
settlement-deed  to  give  in  the,  name  of 
Muhammad  Nabi  feast  in  tha  month  of 
Eamzan  and  this  involves  an  allegation 
that  the  defendant  has  altered  the  direction 
contained  in  the  settlement-deed  to  suit 
his  own  purposes.  If  this  charge  is  found 
to  be  true,  that  by  itself  will  be  enough  to 
remove  any  trustee.  This  is  not  mentioned 
as  a  specific  charge  of  breach  of  trust 
against  the  defendant  in  the  items  (a)  to 
(n)  mentioned  in  para.  8  of  the  plaint,  but 
it  has  been  dealt  with  by  the  lower  Court 
in  its  judgment,  paras.  37  and  38  and  it  has 
also  been  argued  before  us.  Exhibit  I  con- 
tains the  following  directions :  "Out  of  the 
income  derived  from  that  property,  (1)  the 
musjid  lights  be  lighted  every  day,  (2) 
extra  lights  should  be  kept  there  on  festive 
days,  (3)  a  kathib  should  be  nominated  to 
recite  the  vedam  (korari)  in  the  musjid  on 
monthly  pay,  (4)  feeding  should  be  arranged 
for  in  the  name  of  Muhammad  Nabi  in 
the  Ramzan  month  and  (5)  one  or  two 
persons  should  be  fed  every  day1'.  The 
plaintiffs*  case  is  that  the  word  "  Ramzan  " 
which  really  is  the  month  referred  to  in 
Ex.  I  has  been  altered  into  "  Rabbisani "  by 
the  defendant  and  that,  as  a  matter  of  fact, 
he  has  not  been  complying  with  the  real 
direction  contained  in  Ex.  I  to  feed  the 
Muhaznmadans  in  the  month  of 


DOST  MUHAMMAD  V.  KADAR  BATCtfA. 


[«2 1. 0. 1926] 

The  defendant's  case  is  that  he  has  really 
made  no  alteration  in  Ex.  I  that  in  the 
month  of  Ramzan  all  Muhammadans  fast 
during  day  time,  that  no  feast  can  be  given 
during  that  month  and  that  the  feeding  is 
in  the  month  of  Rabbisani.  As  regards  the 
alteratiojp,  the  volume  containing  this 
document  was  sent  for  from  the  Registrar's 
office  by  the  Subordinate  Judge  and  in 
that,  it  was  found  that  the  word  written  is 
"Ramzan"  and  not  "Rabbisani"  Ex.  A, 
the  registration  copy  of  Ex.  Y  also  contains 
the  word  "  Ramzani ".  It  must  be  said 
that  there  is  an  alteration  in  Ex.  I  regard- 
ing the  month.  Whoever  made  the  altera- 
tion, I  am  not  satisfied  that  it  was  the 
defendant  who  made  it.  If  the  plaintiffs 
wanted  to  charge  the  defendant  with  the 
express  alteration  of  this  document  in  one 
of  its  important  particulars,  they  should 
have  done  so  in  the  plaint  which  would 
have  given  the  defendant  an  opportunity 
to  meet  it.  The  charges  with  regard  to 
feeding  mentioned  in  the  plaint  are  clauses 
(/)  and  (0),  namely,  (/)  uno  food  is  given 
"by  the  defendant  to  any  person  daily  and 
no  public  feeding  made  by  the  defendant 
in  Ramzan  or  any  other  occasion ;  (g) 
nothing  is  done  in  Ramzan  month  either 
according  to  Muhammadan  religion  and 
custom  or  according  to  the  terms  of  the 
deed  of  1879".  These  charges  are  met 
by  the  defendant  in  his  written  statement. 
The  charge  with  which  I  am  now  dealing, 
viz.,  that  that  defendant  has  altered  a 
direction  contained  in  Ex  I  seems  to  have 
been  suggested  and  that  only  very  faintly, 
in  the  ctfurse  of  the  examination  of  the 
defendant.  The  evidence  on  this  point 
that  has  been  referred  to  by  the  learned 
Vakil  for  the  appellants  is  what  is  spoken 
to  by  the  defendant  on  the  last  day  of  his 
examination  (3rd  September  1921)  which 
commenced  the  13th  July  1921.  When  he 
was  re-called  on  the  3rd  of  September  1921, 
he  stated  thus: — "I  produced  in  Court  the 
two  copies  shown  to  me.  My  Vakil  asked  me 
to  search  and  find  them  out  if  available,  (the 
two  copies  referred  to  are  Exs,  XIX  and  XIX 
(a).  "  I  got  them  from  my  records.  They 
have  been  in  my  custody  for  the  past  40 
years,  I  filed  Ex.  I,  one  before  the  Tahsil- 
dar  and  one  on  another  occasion  in  the 
Jilla  Court  and  obtained  succession  certi- 
ficate. Sivabiran  Pillaiwho  wrote  Ex.  I 
died  eight  years  ago.  I  filed  Ex.  I  in  Courts 
and  offices  only  after  it  was  registered. " 
Iu  another  place  in  the  evidence  given 


959 


by  the  defendants  we  find,  at  page  52,  that  he 
states  "  In  Ex.  I  it  is  written  as  Ramzan.1* 
No  other  evidence  has  been  brought  to  our 
notice  regarding  this   alteration.      If    the 
plaintiffs  wanted  to  charge  the  defendant 
with  this  alteration  in  the  settlement-deed, 
they  should,  in  the  first  place,  have  stated 
it  as  a  specific   charge  in  the  plaint  itself 
and  really  cross-examined   the  defendant 
regarding  the  same.    On  the  other  hand, 
we  find  that  no  such  thing  has  been  done. 
The  defendant  while  he  was  in  the  witness- 
box  was   not  asked  any   question  by  the 
plaintiffs  directly  as  to  how  the  alterationm 
Ex.   I    which    was    in   his  possession  was 
brought  about.  The  document  came  into  his 
possession  fiom  Amir  Khan.  The  evidence  is 
to  the  effect  that  feeding  on  a  large  scale  is 
generally  given  in  the  month  of  Rabbisani. 
Amir  Khan  himself  have,  therefore,  made 
this  alteration  after  the  registration  of  the 
document,  and  probably  it  was  such  an 
altered  document  that  came  into  the  posses- 
sion of  the  defendant.    There  is  absolutely 
no  motive  for  the  defendant  to  make   this 
lateration.  In  the  absence  of  clear  evidence 
to  show  that  the    defendant  has   altered 
Ex.  I  we  cannot  infer    that  the  alteration 
complained  of  was  brought  about  by  him.  As 
regards  feeding  in  the  month  of  Rabbisani 
I  am  satisfied  from  the  evidence    that    the 
defendant  has  complied  with  the  provisions 
of  Ex.  I.    Though    the    2nd    plaintiff  says 
that  feeding  should  be  done  in  this  mosque 
in  the  month  of  Ramzan,  he  has  to  admit 
that  feeding  is  done  in  other  mosques  in 
the  month    of  Rabbisani.    It    is  generally 
admitted     that    all    Muhammadans    fast 
during   day  time  in    Ramzan  and  during 
night   they  take  kanji.    The   1st  plaintiff 
states  that  Amri  Khan  fed    people  in  the 
month  of  Ramzan^  but  he  does  not   know 
whether  the  defendant  did  as  a  trustee   or 
in  his  private  capacity  or  out  of  what  funds ; 
and  he    also    states    that    according     to 
Muhammadan  religion   people  are  fed  in 
the  month  of  Rabbisani.     The  evidence  on 
this  point  is  dealt  with  at  great  length  by 
the  Subordinate  Judge  in  para.  38  of  his 
judgment,    1    do  not  think   it  necessary 
to  pursue  this  point  any  further,  as  it  is 
not  the  case  of  the  plaintiffs  that  the  defend- 
ant did  not  feed  people  in  the  month  of 
Rabbisani    (see  P,  W.  No.  10's  (i.  e.    1st 
plaintiff's)  evidence  p.  34).    The  evidence 
of  the  defendant  that  feeding  is  generally 
done  in  the  month  of  Rabbisani  and  that 
he  has  been  so  feeding  the  Muhammadans 


960 


RAHMAN  V.  ABDUL  SAMAD, 


has  been  believed  by  the  Subordinate  Judge. 
Charges  (f)  and  (g)  though  referred  to  have 
not  been  specially  pressed  before  us  by  the 
learned  Vakil  for  the  appellants,  for  there 
is  abundant  evidence  that  kanji  was  dis- 
tributed to  all  the  devotees  who  go  to  the 
mosque  in  the  evening  during  the  month 
of  Rainzan.  On  a  consideration  of  the 
evidence  in  the  case,  I  am  not  satisfied  that 
the  defendant's  continuance  in  the  office 
which  he  has  held  ever  since  1879  is 
incompatible  with  the  interests  of  the 
institution  and  that  he  should  be  removed 
from  its  management. 

It  was  suggested  that,  even  if  there  is  no 
case  made  out  for  removing  the  defendant 
from  the  management  of  the  mosque,  we 
should  frame  a  scheme  for  its  management, 
In  view  of  the  evidence  in  the  case  that 
has  been  put  before  us,  we  do  not  think 
that  we  are  called  upon  to  formulate  any 
scheme. 

In  the  result  the  appeal  fails  and  must 
be  dismissed  with  costs, 
v.  N.  v.  Appeal  dismissed. 

N.  H. 


CALCUTTA  HIGH  COURT, 

APPEAL  FROM  ORDBK  No.  156  OF  1924, 

August  19, 1925. 

Present: — Justice  Sir  Babington    New- 
bould,  KT.,  and  Mr  Justice  B.  B.  Ghose. 
FAZALAR  RAHAMAN  AND  OTHEKS— 
PLAINTIFFS  —APPELLANTS 

versus 

ABDUL  8AMAD  AND  OTHKRS— DEFENDANTS 
— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  s  JjJ4— 
Limitation  Act  (IX  of  W08),  Sch  I,  Art  181- -Restitu- 
tion application— Limitation,  operation  of. 

Where  a  decree  is  set  aside  in  appeal,  and  the  order 
is  confirmed  m  second  appeal,  limitation  for  an 
application  for  restitution  runs  from  the  date  of  the 
order  in  second  appeal  and  not  from  that  in  the  lir&t 
appeal. 

Uma  Charan  Chakrabarti  v  Nibaran  Chandra 
Chakrabarti,  75  Ind.  Caa  2,  37  C.  L,  J.  452;  A.  I.  R. 
192,i  Cal  389  and  Ham  Charan  v.  Lakhi  Kanta,  7  B.  L, 
K,  704;  16  W.  R.  1,  followed. 

Limitation  fora  restoration  application  is  thiee  years 
uncbr  Art.  181  of  Sch  I  to  the  Limitation  Act. 

AfU'tcsh  Goswami  v.  Upendra  Prosad  Mttra,  38  Ind. 
•Cas.  17;  21  0,  W.  N.  584;  24  0.  L,  J.  467,  relied  on. 

Appeal  against  an  order  of  the  District 
Judge,  OhittagODg,  dated  the  31st  Janu- 
ary 1924,  affirming  that  of  the  Muneif, 
First  Court  at  Patiya,  dated  the  27th  of 
September  1923, 


[92 1.  0, 1926) 

Babu  Charu  Chandra  Sen,  for  the  Appel- 
lant. •  i  .  ./ 

JUDGMENT.— This  is  an  appeal 
against  an  order  granting  an  application 
for  restitution.  The  original  decree  \\ad 
passed  on  the  12th  June  11J16.  In  execu- 
tion of  that  decree  certain  iticmey  wag 
realised  by  the  appellants  on  the  17 1£ 
February  1^17.  The  decree  was  reveisea 
on  appeal  on  the  7th  January  1920.  There 
was  a  further  appeal  to  tins  Court  and 
the  decree  of  the  Appellate  Couit  was 
affirmed  on  the  20th  December  1921.  This 
application  for  restitution  was  made  on 
the  B  9th  February  1923.  On  the  authorities 
it  is  clear  that  the  period  of  limitation  id 
three  years  under  Art.  181  of  the  Limit- 
ation Act  [see  Asutosh  Goswami  v.  Upsndra 
Prosad  Mitra  (1)].  The  point  we  have  to 
decide  is  whether  this  period  of  limitation 
runs  from  the  7th  January  1920  when  the 
decree  of  the  first  Court  was  set  aside  or 
from  the  date  of  its  confirmation  on  second 
appeal  to  this  Court. 

In  pur  opinion  the  lower  Courts  are 
right  in  holding  that  the  time  should  be 
calculated  from  the  later  date.  Though 
the  facts  are  not  the  same  we  think  the 
principles  in  the  case  of  Uma  Charan 
Chakrabarti  v.  Nibaran  Chandra  Chakra- 
barti  (2)  are  applicable  in  the  present  case, 
There  attention  has?  been  drawn  to  the 
lucid  exposition  of  Mr.  Justice  Dvrarka 
Nath  Mitter  in  the  case  of  Ram  Charan  v. 
Lakhi  Kanta  (3)  of  the  true  effect  of  the 
disposal  of  an  appeal  upon  the  decree  of  the 
primary  Court:— "if  the  decree  of  the  lower 
Court  is  reversed  by  the  Appellate  Court,  it 
is  absolutely  dead  and  gone.  If,  on  the  other 
hand,  it  is  affirmed  by  the  Appellate  Court, 
it  is  equally  dead  and  gone,  though  in  a 
different  way,  namely,  by  being  merged  in 
the  decree  of  the  Superior  Court,  which 
takes  its  place  for  all  intents  and  purposes. 
Both  the  decrees  cannot  exist  simultane- 
ously." On  the  passing  of  the  decreed 
this  Court  in  second  appeal  the  petitioners 
had  a  right  to  apply  for  restitution  within 
three  years  of  that  decree,  and  this  they 
have  done. 

We  accordingly  dismiss  this  appeal  We 
make  no  order  as  to  costs. 

N*  .£'T  in      i*  c*    „  APPwl  dismissed. 
33  Ind.  Cas.  U;  21  (X  W.  N.  564,  24  £.  L,  J 

75  lacl  Oae.  2;  37  0,  It.  J.  452;  A,  L  R.  1923  Cai 
73.L.R,  701';16W,IU, 


[92  J.  0.  1926]  BAKQSHI  BAbAN 

CALCUTTA  HIGH  COURT. 

APPEAL  FKOM  APPELLATE  DECRES  No.  1538 

OF  1923. 

July  8,  1925. 

Present. — Justice  Sir  Ewart  Greaves,  KT  , 

and  Mr  Justice  B  B  Ghose. 

BANG8HI  BADAN  HALDAR— PLAINTIFF 

— APPELLANT 

versus 

RATAN  Ijardar  AND  OTHERS— 
DEFENDAN  rs— RESPONDENTS 

Bcnjal  Tenant  >/  Act  (VIII  of  1885),  a  Ifl  (b)  -Eje<  t- 
ment,  suit  /or  —Lease  fo)  indefinite  tei  m-  -Lrtu  ilord 
and  tenant —Ejectment  suit-  PC i mane nt  teniHot/-- 
Onus 

Wlieit1,  in  a  suit  foi  ejectment  of  a  tenant  the1 
defendant  s^ts  up  a  peimaueiit  iiglit  th(a  011113  lies  oa 
him  to  substantiate  his  claim 

A  landloid  is  entitled  to  evict  a  tenant  holding 
under  a  lease  foi  indefinite  period  by  \iiotice  nuclei 
s  49  (ft),  Bengal  Tennncy  Act 

liaj  Kumati  Deln  v  ttathatitlht  Mundul,  12  Ind 
Oas  1G1,  39  0,  278,  14  C  L  J  107,  10  0  W  N  6, 
followed 

^  Appeal  against  a  deciee  of  the  Addi- 
tional District  Judge,  Khulna,  dated  the 
22nd  December  1922,  modifying  that  of  the 
Munsif,  Second  Court  at  Khulna,  dated 
the  28th  June  1821. 

Babu  Mukunda  Behan  Mallick,  for  the 
Appellant. 

Sir  P.  C  Mittcr  and  Bahu  Satiudra  Nath 
Mukzrjee,  for  the  Respondents 

JUDGMENT. 

Ghose,  J.  —This  appeal  arises  out  of  a 
suit  for  ejectment  of  the  defendants  The 
plaintiff  alleges  that  he  purchased  the  jama 
which  belonged  originally  to  one  Midhab 
Sardar  in  March  1908,  the  defendants  are 
under-raiyats  on  whom  he  served  notice 
under  s  49  (b)  of  the  Bengal  Tenancy  Act 
and  that  he  is  entitled  to  k\as  possession. 
Various  pleas  were  raised  in  defence  such 
as  the  plaintiff  had  not  purchased  any 
interest  in  the  property;  that  he  is  not  the 
sole  owner  of  the  holding  and  that  the 
defendants  were  occupancy  raiyats  who  had 
a  heritable  interest  in  the  land  and  that  no 
notice  had  been  served  under  s  49  of  the 
Bengal  Tenancy  Act.  The  Munsif  found 
all  the  questions  against  the  defendants  and 
passed  a  decree  in  ejectment.  On  appeal  by 
the  defendants  the  lower  Appellate  Court 
found  all  the  questions  except  one  against 
the  defendants.  The  point  on  which  the  lower 
Appellate  Court  disagreed  with  the  Munsif 
was  with  regard  to  the  nature  of  the 
interest  the  defendants  as  under-raiyat* 
had  in  the  land  in  suit.  The  lower  Appel- 
late Court  seems  to  have  thought  that  the 

01 


HALDAR  V.  IUTANL 


961 


under-tenancy  might  have  been  a  perman- 
ent grant  or    at  any    rate  a  grant  for  an 
indofiLite  period  and  a  lease  was  binding 
on  tlie   plaintiff  and  so  he  is  not  entitled  to 
eject  the  defendants  on  service  of  notice  to 
quit  under  the  Bengal   Tenancy  Act.      The 
defendants,  however,  did   not  produce    any 
lease  under  which  their  right  is  supposed 
to  have  been  created.    It  appears  that  there 
was  a  litigation   between   the  predecessors- 
in-interest  of  the  plaintiff  and  the   defend- 
ants m  the  year  18b6.    The  defendants'  pre- 
decessor sued  for  possession  of  the  land  on 
the    ground    that   he   Lad    been     forcibly 
ousted  bv  his  landlord  and   in  support  of 
his  case  it  appears  that  he  produced  a  lease. 
Thai  lease,  however,  has  not  been  produced 
in  tins  case     It  is  alleged  by    the   defend- 
ants   documents    have  been  destroyed  by 
cyclone,     But  then  they  did  riot  claim  any 
under  raujati  interest  under  any    lease  m 
the  present  suit     But     they  claimed  .that 
they  were  occupancy  raiyats  and  the  lease 
if    produced     certainly    would    not    have 
suppoi  ted  their  plea.     The  Additional  Dis- 
tiict  Judge  seems  to  have  drawn   the  con- 
clusion  which     is   not     warranted   in    the 
absence  of  any  evidence  that  that  lease  was 
a    permanent   giant.      If    the     defendants 
claim  any  permanent  right  it  was  for  them 
t.o  substantiate  it  which  they  have  not  done 
If  the    lease  was   for  an  indefinite  period 
then  under  the  ruling  of  the  Full  Bench  in 
Raj    Kumari    Debi  v.    Barkatulla   Mandal 
(1)  the  plaintiff  would   be  entitled  to  seek 
for  ejectment  on  service  of  notice  under  the 
Bengal  Tenancy  A^t     The  decision,   there- 
fore, of  the    lower  Appellate  Court  on  this 
point  is  erroneous, 

Ib  \fas  endeavoured  on  the  part  of  the 
respondents  to  support  the  decree  of  the 
lower  Appellate  Court  on  the  ground  that 
the  plaintiff  was  not  the  owner  of  the  entire 
jama.  This  point  was  found  by  both  the 
Courts  below  in  favour  of  the  plaintiff. 
What  happened  is  this  ?  When  the  pro- 
perty was  sold  the  sale-certificate  was  taken 
ia  the  name  of  the  plaintiff  and  the  pro 
forma  defendant  No.  5  and  the  plaintiff  pre- 
sented a  petition  in  the  execution  case 
stating  that  the  pro  forma  defendant  would 
have  a  4  annas  share  as  he  had  promised 
to  pay  4-annas  share  of  the  purchase-money. 
But  the  finding  ia  that  the  pro  forma  de- 
fendant never  paid  his  share  of  the  pur- 
chase-money nor  entered  into  possession 

(1)  12  Ind,  Oas.  161;  39  0,  278,  14  0.  L,  J.  407,  16  0, 

W,  N,  6, 


£62 


MAN6PALLI  SATAlSURAYANAMimTHI  t>.  THOMMANDfcA  ERIFALA^PA.     [92  J.  0.  1926] 


of  the  property.  Both  the  Courts  below 
have  found  that  the  plaintiff  had  all  along 
been  in  pogfCPMon  of  the  fjavia  purchased 
and  upon  thnt  fitnlmt?  it  cannot  be  contend- 
ed lhat  the  plain  tilt  is  not  the  owner  of  the 
entiie  piopeity 

The  judgment  and  decree  of  the  lower 
Appellate  Court  are,  therefore,  pet  aside 
and  those  of  the  Munsif  restored  with  cos^s 
in  this  Court  and  in  the  lovier  Appellate 
Court. 

Greaves,  J,— I  agree. 

M.  B.  Appealldecreed. 

N.  H. 


MADRAS  HIGH  COURT. 

APPEALS  Nos.  14]  AND  195  OF  I'j23. 

September  23,  1925. 

Present; — Sir  Victor  Murray  Coutts 

Trotter,  KT.,  Chief  Justice,  and  Air.  Justice 

Iteilly. 

MANEPALLI  SATANARAYANA- 

MURTHI— DEFENDANT  IN  A.  S.  No.  HI 

OF  1923  AND  RESPONDENT  IN  A,  8. 

No.  195  OF  1923— APPELLANT 

versus 

THOMMANDRA  ER1KALAPPA— 

PLAINTJFJ?  IN  A.  S.  No,  141  OF  1923  AND 

APPELLANT  IN  A.  S.  No,  195  OF  1923 

— RESPONDENT. 

Vendor  and  purchaser— Sale  of  goods— Wrongful 
repudiation  bit  buyers-Vendors  t>uit  for  damage* — 
Vendor'*  ability  to  deliver  goods,  question  of—  Damages, 
measure  of — Deposit  with  vendor,  whether  forfeited — 
Vendee,  rights  of. 

In  a  suit  for  damages  by  a  vendor  for  wrongful 
repudiation  of  goods,  he  cannot  be  defeated  merely 
by  its  being  shown  that  after  icpudiation  by  the 
buyer,  he  had  not  the  goods  to  implement  the  contiact 
actually  in  his  physical  possession.  The  vendor  can 
show  that  he  could  have  supplied  the  goods  contracted 
for  either  from  the  open  maiket  or  from  any  other 
source  and  in  either  case  he  ^ould  be  entitled  to  main- 
tain a  suit  for  damages  for  wrongful  ^repudiation  [p. 
962,  col.  2] 

British  &  Beningtons  Limited  v  Ar,  W,  Cachar  Tea 
Co.  Ltd  ,  (1923)  A  C.  48,  92  L.  J.  K.  B.  62,  128  L.  T. 
422;  28  Com,  Cas,  2G5,  followed. 

In  such  a  case  if  the  vendor  has  got  a  deposit  frcm 
the  vendee  towards  the  contract,  he  is  not  entitled  to 
keep  the  whole  amount  of  deposit  irrespective  of 
actual  damages  suffered.  "Where  the  actual  damage 
suffered  is  less  than  the  amount  of  deposit,  the  vendee 
is  entitled  to  refund  not  only  of  the  amount  of  differ- 
ence between  the  two,  but  ako  to  inleiett  thereon. 
Lp.  263,  col,  l.j 

Appeals  against  a  decree  of  the  Court  of 
the  Subordinate  Judge,  Kislna,  at  Ellore, 
in  0,  8,  No.  145  of  1921, 


Mr.  Patanjali  Sastry,  for  the  Appellant 
in  A.  S.  No.  141  and  the  Respondent  in  A. 
S.  No  l!'5of  1923. 

AIi.A  Varadachariar,  for  theUespondent 
in  A  S  No.  141  and  the  Appellant  in  A.  S. 
No.  15)3  of  l'Ji'3 

JUDGMENT. 

Coutts  Trotter,  C.  J.— This  case  is 
really  governed  by  the  decision  of  the 
House  of  Lords  in  British  &  Beningtons 
Limited  v,  AT.  W.  Cachar  Tea  Co.,  Ltd.  (1). 
As  I  undeistand  that  case,  it  lays  down 
that  a  seller  is  not  to  be  defeated  merely 
by  its  being  shown  that  after  repudiation 
by  the  buyer,  he  had  not  the  goods  to 
implement  the  contract  actually  in  his 
physical  possession.  He  can  show  that  he 
could  supply  the  goods  contracted  for 
either  from  the  open  market  or  from  any 
other  source  and  he  would  be  entitled  to 
maintain  a  suit  for  damages  for  wrongful 
repudiation. 

In  this  case  the  contract  was  that  the 
buyer  should  take  the  goods  between  the 
20th  and  the  30th  of  April  1919.  He  did  not 
do  so  and  he  set  up  a  false  defence  that  he 
sent  two  men  to  take  delivery  within  the 
contract  peiiod.  Those  two  men  were 
called  and  gave  evidence  and  the  learned 
Judge  refused  to  believe  them.  No  Judge 
sitting  as  a  Jury  would  hav/^believed  them 
because  the  seller  wrote  oji  28th  April 
]919  reminding  the  buyer  that  the  date 
of  effluxion  of  the  contract  was  drawing 
near  and  the  buyer  (plaintiff)  did  not 
answer  that  until  as  late  as  (5th  May  1919 
when  he  set  up  this  lying  story  about  the 
two  men  having  gone  for  the  rice  and 
being  sent  empty  away.  Now  a  point  had 
been  taken  in  this  Court  by  Mr.  Patanjali 
Sastri,  which  is  certainly  ingenious,  and  it 
is  this,  that  on  the  evidence  before  the 
Court  which  we  have  in  form  of  deposi- 
tions it  was  never  proved  by  the  seller  that 
the  goods  he  had  were  goods  which  corres- 
ponded to  the  description  of  the  goods  to 
be  sold,  it  being  common  knowledge  of 
course  that  theie  are  different  brands  and 
diffeient  qualities  of  rice,  and  indeed 
different  qualities  were  mentioned  at  the 
trial.  T^o  witnesses  were  asked  whether 
they  knew,  what  eoit  of  rice  it  was  that 
the  defendant  proved  to  the  learned  Judge 
that  he  bad  at  Ellore,  and  they  spoke  of 
ecir.e  rice  in  ecmefcody's  godcrnn  and  of 
eome  more  that  he  could  have  got  delivery 

(1)  11923)  A,  0. 48;  P2  L,  J,  K,  B,  02;  128  L.  T.  422: 
28  Com,  Caa,  205. 


I.  0.  1926] 


GOPAL  OflANi)RA  DAS  V   SitYA  BllANOOn 


of  against  cash  from  the  Bank.  Of  course 
the  people  who  were  asked  those  questions 
replied — there  is  no  doubt  that  the  Vakil 
knew  that  they  would  reply  that  they  did 
nut  know.  But  unfortunately  there  is  not 
a  trace  of  that  suggestion  as  to  the  qualify 
not  being  right  having  been  put  to  the 
defendant  himself,  the  seller,  who  knew  all 
about  it.  We  are  not  to  forget  that  the 
buyer's  case  at  the  tiial  was  that  he  was 
entitled  to  have  damages  because  he  had 
asked  for  delivery  and  had  not  got  it. 
In  my  opinion,  it  would  be  quite  wrong  to 
act  on  a  suggestion  of  this  kind  when  it  is 
clear  that  the  defendant  was  never  given 
a  fair  chance  of  explaining  it  at  the  trial. 

The  buyer's  appeal  (A.  8  No  195  of 
1923)  will,  therefore,  be  dismissed  with 
costs, 

With  regard  to  the  seller's  appeal  (A.  8. 
No.  141  of  1923J  he  says  first  that,  having 
got  a  deposit  and  there  having  been  a 
failure  by  the  buyer  to  take  delivery,  he 
ought  to  keep  the  deposit.  His  own  origi- 
nal suggestion  was  that  he  should  return 
the  deposit  less  whatever  he  is  entitled  to 
by  way  of  damages  I  can  content  myself 
with  saying  that  it  is  never  the  practice 
in  mercantile  contracts,  to  hold  that  what- 
ever be  the  damage  suffered  or  not  suffered, 
the  seller  is  to  be  entitled  to  keep  the 
deposit.  He  is  only  entitled  to  such 
damages  as  the  learned  Judge  sitting  as  a 
Jury  has  suggested,  namely,  12  annas,  a  bag, 
and  I  do  not  think  we  ought  to  interfere 
in  a  matter  which  is  eminently  one  for  the 
Trial  Judge. 

With  regard  to  interest,  it  sounds  plausi- 
ble to  say,  as  Mr  Varadachariar  has  argued, 
that  a  person  who    is  in   default  cannot 
possibly  be  heard  to  say  that  he  is  entitled 
to  claim  interest    from  the  other  side.    The 
answer  to  it  is  the    one  that  the   learned 
Judge  has  given  namely,  that  the    seller 
should  have  made  calculation  of  the  damage 
he  has  actually  suffered    and  tendered  the 
return  of  the  balance  to  the   buyer.     No 
doubt  it  puts  a  man  ia  a  difficulty  and  if  he 
goes  ultimately   into  a    Court  of  Law  he 
might  have  to  justify  his  fixing  the   figure 
as  best  he  could.    Bat  I  take  it  that  almost 
any  tribunal  would  have  an    indulgent    eye 
on   the  arithmetic  of  a  man  who  adopted 
that  straight-forward  course.    In  the  result 
the  seller  had   the  buyer's  money  in   his 
hands  for  a  good  many  years  to  the  amount 
of  the  excess  between  what  the  Judge  has 
Allowed  by  way  of  damages  and  the  amount 


963 

of  the  deposit  which  was  Rs.  4,001,  I  think 
h^re  too  the  judgment  of  the  learned  Judge 
must  be  upheld  and  this  appeal  also  will 
be  d  is  missed  with  costs. 

Rellly,  J.— I  agiee. 

v,  N  v.  Appeals  dismissed. 

N.  II. 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATB  DECREE  No.  2113 

OF  1923. 

July  17,  1*125 

Present  -—Justice Sir  Babington 

Newbould,  KT. 

QOPAIj  CHANDRA  DAS  AND  ANOTHER 
— DEFENDANTS  Nos.  7  AND  8— APPELLANTS 

versus 

tfnmarSATYA  BHANU  GHOSHAL 
AXD  OTHERS — PLAINTIFFS — RESPONDENTS. 

Lessor  ami  lessee  -  Permanent  residential  tenancy — 
Presumption,  when  arises — Fresh  lease — Old  tenancy, 
whether  continued— Adverse  possession  by  lessee 

Wheiethe  oiig in  of  a  tenancy  for  residential  pur- 
pos3s  is  known,  no  presumption  of  permanency  can 
aiisc  [p  WU,  col  2J 

Ab'lul  Halim  Khan  Chaudhunv  Elahi  Baksha 
Saha,  85  Ind  Gas  103,  52  C  43,  29  C.  W  N  138,  A  I 
K  1923  Cal  JOO,  fallowed. 

A  fiesh.  lease  executed  after  the  expnation  of  the 
trtim  of  the  pievious  Ieas3  creates  a  new  tenancy  and, 
is  not  a  confirmation  of  the  pievious  tenancy  [p  965, 
col  1] 

A  pei  sou  who  has  lawfully  come  into  possession  as 
tenant  from  3  ear  to  year  or  a  term  of  ycuis  cannot  fov 
sotting  up,  however  notoriously,  during  the  continu- 
nnc  >  of  such  relation,  any  title  adverse  to  that  of  the 
landlord  inconsistent  with  the  legal  i  elation  between 
them,  acqune,  by  limitation,  title  asownei  or  any  other 
titla  inconsistent  vuth  that  under  which,  he  was  let 
into  possession  fp  %.">,  col  2  ] 

Rajah  or  Venkataqiri  v  Mukku  Narsaya,  7  Ind 
Cab  202,  37  M  1,  8  M  L  T  258,  (1910;  M.  W  N.  369, 
followed 

DroboMoi/i  (luptav  Davis,  14  0  323,  7  Ind.  Dec 
(N  s  )  214  and  Stshamma  Shettati  v  Chickaya  Hegade, 
25  M  507,  12  M  L  J  119,  distinguished 

Appeal  against  a  decree  of  the  District 
Judge,  24-Pargannas,  dated  the  17th  July 
1923,  reversing  that  of  the  Munsif,  First 
Court,  Ahpur,  dated  the  29th  September 
1921. 

Dr.  Dwarka  Nath  Mltter,  and  Babu 
Narendra  Nath  Mitter>  for  the  Appellants. 

Babu  Surendra  Nath  Guha  and  M.  Nwr- 
uddin  Ahmed,  for  the  Respondents. 

JUDGMENT*— This  is  an  appeal 
against  a  deciee  in  ejectment  The  appeal 
is  valued  at  KB.  28  1-0.  Ibis  valuation  IB 
made  xt&cler  the  statutory  piovisions  of 


964 


GOPAL  CHANDKA  DAS  V.  BATTA  B0ANU  GHOSHAL, 


[92 1.  0. 1926  J 


Sxiits  Valuation  Act  and  the  Court  Fees  Act 
and  in  no  way  represents  the  real  value  of 
the  property.  I  am  told  if  the  defendants 
succeeded  in  establishing  their  claim  to  a 
permanent  right  to  the  land  in  suit  the 
value  of  the  property  would  be  no  less  tliau 
Es.  20,000. 

The  appellants  before  me  are  defendants 
Nos.  7  and  8  in  the  suit.  The  defendant 
No.  7  through  his  benamdar  and  son  de- 
fendant No.  8  has  purchased  the  tenancy 
interest  of  a  holding  which  originally  com- 
prised two  plots  of  land.  One  of  these  is 
about  14  cottahs  in  area  situated  on  the 
east  of  Bridge  Road  Chetla  and  that  is  the 
plot  which  is  the  subject  of  the  present 
suit.  The  other  plot  is  to  the  west  of  the 
same  Road  and  is  about  one  cottah  in  area. 
The  plaintiff  served  notices  to  quit  on  de- 
fendants Nos.  1  to  7  treating  the  tenancy  as 
a  tenancy-at-will. 

The  appellants-defendants  contested  the 
suit  and  before  me  the  same  contentions 
were  urged  as  had  been  urged  in  the  lower 
Courts.  The  following  were  the  four  points 
urged  :  firstly,  that  there  had  been  no 
division  of  the  original  holding  and  that 
this  suit  being  one  for  ejectment  from  a 
portion  of  the  holding  would  not  lie, 
secondly^  that  from  the  facts  found  by  the 
lower  Appellate  Court  the  legal  inference 
should  be  drawn  that  the  defendants  had  a 
permanent  tenancy  ;  thirdly,  that  the  de- 
fendants and  their  predecessors  had  acquir- 
ed a  right  of  permanent  tenancy  by  pre- 
scription ;  and  lastly,  that  the  notice  to  quit 
was  bad  because  it  related  to  a  portion  of 
the  holding  and  also  because  it  had  not  been 
served  on  the  defendant  No.  8. 

As  regards  the  first  point  it  appears  that 
there  was  a  partition  of  the  estate  in  1802 
by  a  decree  of  the  Civil  Court.  In  that  suit 
the  14  cottah  plots  which  the  subject  of  the 
present  suit  fell  to  the  share  of  the  plaint- 
iffs and  the  other  one  cottah  of  the  holding 
fell  to  the  share  of  the  co-sharers.  Hince 
then  it  is  found  that  the  plaintiffs  and  their 
co-sharers  were  realizing  rent  sepaialely 
from  the  plots  allotted  to  their  share.  It  is 
contended  that  this  finding  is  not  sufficient 
to  create  a  division  of  the  holding  which 
would  bfe  effective  as  against  the  tenants. 
But. the  finding  of  the  lower  Appellate  Court 
is  more  than  that.  He  has  further  found 
that  the  situation  was  accepted  by  the 
tenants  of  the  landlords,  and  if  this  fa 
correct  and  the  tenants  acquiesced  in  Ihe 
division  of  the  holding  there  cen  be  jlo 


doubt  that  the  lower  Appellate  Court  was 
right  in   deciding  that    the  holding    was 
effectively  divided.  In  my  opinion  the  facts 
stated  are  sufficient  to  support  this  deci- 
sion. It  is  pointed  out  that  when  the  plaint- 
iffs realized  rents  from    the  defendants  ^by 
ceitia'cate  procedure,  though    an  objection 
was  taken  on  behalf  of  the  defendants  that 
there  were  two  plots  that  objection  was  not 
pressed,  and  no  objection  was  taken    that 
there  was  no  appointment  made.  It  is  found 
farther  that  there  is  no  question  here  that 
the  Tewaries,  that  is  to  say,  the  appellants* 
predecessors,  were  placed  in  any  awkward 
position.     On  these  facts  I  hold   that  the 
finding  of  acquiescence  by  the  tenants  is 
justified  and  theie  vtas  such  a  division  that 
the  plot  of  land  which  formed  the  subject  of 
the  present  suit  became  a  separate  holding. 
As  regards  the  second  point  the  case-law 
on  the  subject  has  been  fully  dealt  with  in 
the  recent  judgment  of  Mr.  Justice  Chakra- 
vaiti  in  Abdul  Hakim  Khan  Chaudhuri  v. 
Elahi  Baksha  Saha  (I).    At  page  62*^  the 
elements  which  were  found  to  have  existed 
in  cases  where  presumption  of  permanency 
was  made    are  stated  as  follows :— First, 
the   origin  of  the   tenancy  for  residential 
purposes    must    be    unknown  ;    secondly, 
the  existence  of  permanent  pucca  buildings 
on  the  land  built    long  before  any   contro- 
versy arises  and  that  to  the  knowledge  of 
the  landlord  ;   thirdly,  uniform  payment  of 
rent  ;    fourth  ,   recognition  of  successions 
and    transfer    by    the   landlord.'  On   the 
findings  in  the  present  case  it  would    ap- 
pear that  the  second    arid  fourth    of  these 
elements  may  be  said  to  have  been   estab- 
lished.   As  regards  the  third  though    the 
payment  of  rent  has  not  been  uniform  the 
increase  has  been  light  having   regard  to 
the  market  value  of  the  land.    But,  in  my 
opinion,   this   contention  must  fail  on  the 
ground   that  the  appellants  have  failed   to 
establish  the  first  of  the  elements  that    the 
origin  of  the  tenancy  for  residential  pur- 
poses  must  be  unknown.    The    plaintiffs, 
have  proved  a  kabuhyat  of  the  year  J244  B. 
A*,  corresponding  to  1837  A.    I).  ,The  com- 
mencement of  the  kabidiyat  which    is  the 
important  portion  is  as  follows  : — "The  term 
of  the    rented  land  measuring  about   12, 
cottahs  standing  in    my  name  situate  in 
Mouzah  Chetla  Pargana  Magura  appertain 
to    Kidderpore    having  expired  I,  Qopal 

(1)  «5  Jnd  Cas,  103;  52  C  43;  29  0.  W.  N.  138;  A.  I 

R.  1925  Cal.  300. 

15ageoF5S  0.  -i 


[92 1.  0. 1923] 


GOPAL  CHANDRA  DAS  V   SAT?A  BHANtt  QHOSHAL, 


965 


Te\vari  again  take  the  aforesaid  land  on  the 
same  rent  for  a  pariod  of  one  year  from 
Baisakh  of  the  current  year  up  till  Chaitra 
for  residential  purposes.  I  shall  pay  rent 
at  the  rate  of  Rs.  3  8  sicca  Rs  3-1 1-9  per 
year  according  to  the  following  monthly 
instalments.  When  the  term  of  this  kabu- 
liyat  expires  and  unless  and  until  any 
second  arrangement  is  made  I  will  pay 
rent  /without  any  objection  at  the  above 
rate11. 

For  the  appellants  it  is  contended  that 
this  kabuliyat  is  a  confirmatory  lease  le- 
cognizing  the  existing  tenancy.  Although 
it  would  appear  from  the  kabuhyat  that 
the  executant  had  held  the  land  previous  to 
its  execution,  it  also  appears  that  the  tenancy 
by  virtue  of  which  he  held  the  land  pre- 
viously had  come  to  an  end,  since  it  is 
stated  that  the  term  had  expned  A  fresh 
lease  executed  after  the  expiration  of  the 
term  of  the  previous  lease  creates  a  new 
tenancy  and  is  not  a  confirmation  of  the 
previous  tenancy,  I  would,  therefore,  hold 
that  the  tenancy  of  the  appellants'  predeces- 
sors commenced  with  this  lease  as  evi- 
denced by  the  kabuliyat  and  was,  therefore, 
known  I  would  further  hold  that  even  if 
this  be  not  tieated  as  the  commencement 
of  a  new  tenancy  it  is  stiong  evidence  in 
the  plaintiffs'  favour  to  show  that  the  terms 
on  which  the  land  was  let  to  the  plaintiffs 
were  not  the  terms  of  a  permanent  lease. 
Further  if  I  were  to  hold  that  this  is  a 
case  in  which  I  have  to  consider  whether 
permanent  tenancy  should  have  to  be 
infened  from  all  the  facts  of  the  case  it 
would  be  very  hard  for  the  appellants  to 
explain  the  admission  made  by  defendant 
No.  8  that  what  he  had  purchased  was  only 
a  monthly  thica  charatia  tenancy-at-will. 
Holdingas  I  do  that  the  origin  of  the  tenancy 
is  known  it  follows  on  the  law  as  laid  down 
in  the  case  as  already  cited  that  no  pre- 
sumption of  permanency  should  be  made  in 
the  appellants'  favour  in  the  present  case 

I  now  come  to  the  contention  that  the 
appellants'  predecessors  obtained  a  mokir- 
rari  mourashi  right  by  adverse  possession. 
What  is  found  is  that  m  1868  they  asserted 
that  right  and  the  landlords  took  no  steps 
to  contest  that  assertion  In  my  opinion 
the  mere  assertion  of  such  right  by  an 
admitted  tenant  would  not  create  any  right 
superior  1o  that  of  his  tenancy  even  though 
followed  by  possession  for  over  12  yeais. 
On  behalf  of  the  appellants  my  attention 
been  drawn  to  $  decision  of  the  Madras 


High  Ojurt  in  Rajah  of  Venkatagin^  v. 
Mukku  Narasaya  (2).    At  page  9*  it  is  stat- 
ed .    "So   far  as   this   Presidency  is  con- 
cerned, it  would  seem  to  be  well  settled  that 
a  person  wno  has  lawfully  come  into  pos- 
session as  tenant  from  year  to    year  or    a 
term  of  years  cannot  by  setting  up,  however, 
notoriously,  during  the  continuance  of  such 
relation,  any  title  adverse  to  that  of 'the 
landlord    inconsistent  with  the  legal   rela- 
tion between  them,  acquire,  by  limitation, 
title  as  owner  or  any  other  title  inconsistent 
with  that  under  which  he  was  let  into  pos- 
session".   The  j  udgment  further  points  out 
that  this  doctrine  is  consistent  with  the  law 
in  England.    It  then  goes  on  to  say    "We 
do  not  find  the  doctrine  has  been  formulat- 
ed  in  the  other  High  Courts  in  India     In 
fact  in  Calcutta  and  Bombay,  the  view  would 
seem  to  be  that  the  assertion  of  the  adverse 
light  coupled  with  possession  for  the  statu- 
toiy  period  is  enough1'.    In  support  of  this 
statement   two  Calcutta  cases  are  cited,  but 
neither  of  them     contain  ^a  denial  of  the 
principle  there  stated     The  case  of  Drobo- 
moyi  Gupta  v  Davis  (3)  has  been  summariz- 
ed  and  distinguished  in  an  earlier  decision 
of  the  Madras  High  Court,   Seshamma  Shet- 
tati    v     Chickaya  Hegade   (4)     There  the 
tenants  who  were  held  entitled  to  plead  the 
right  by  presciiption    became  trespassers 
from  the  date  of  the  death  of  the  widow  and 
continued  to  hold   the  land  for    statutory 
peuod  professing  to  hold  the  same  as  per- 
manent tenants  under  the  lease  granted  by 
the  widow     There  is  no  doubt  that  a  tres- 
passer, whether  he  is  a  former  tenant  whose 
tenancy  has  come  to  an  end  or  whether  he 
is  a  tenant  encroaching  as  in  on  other  lands 
of  the  landlord,  can  by  prescription  acquire 
a  tenancy  light     But  no  case  of  this  Court 
has  been  shown  to  me  in  which  it  has  been, 
held  that  a  tenant  from  year  to  year  can 
by  setting  up  a  title  adverse  to  that  of  his 
landlord  acquire  a  title  giving  him  a  better 
right  than  that  which  he  has  under  his  con- 
tract   of  tenancy      whereas  the   principle 
stated  as  established  by    the  Madras  High 
Court     has    been     followed    in    Birendra 
Kithore  Mamtcija  v  Fuljan  Bibi  (5)    It  was 
there  held  that  while  the  contract  of  tenancy 
is  in  force  either  paity  cannot   practically 
obtain  a  variation  thereof  by  persisting  for 

(2)  7Tud    (Jas  202,   37  M    1,  8  M  L  T   238,    (1010) 
M   \V    N  3dJ 

(3)  11  <>    32  J,  7  Ind  Dv  (N  s  j  214 

(4)  25  M  507,  12  M  L  J  110 

(5J  38  Ind  Gas  469,  25  PL  J  467 

"Page  of  37  MH.fldJ  ~~  " 


966  ALLAH  BAKHSH  V.  MUNICIPAL  COMMITTEE, 

a  long  period  in  his  agger t ion  that  the  term 
is  otherwise  than  what  it  really  is.  I,  there- 
fore, hold  that  since  the  defendants'  pre- 
decessors were  in  possession  as  tenantsonthe 
terms  of  the  kabuliyat  which  has  been  prov- 
ed in  this  case  the  mere  assertion  by  them 
in  18G8  that  they  had  mokarrari  mourasld 
tenancy  would  not  give  them  any  greater 
right  than  they  held  under  the  lease. 

The  last  point  was  not  seriously  pressed. 
As  regards  the  deficiency  of  notice  in  con- 
sequence of  its  relating  to  a  portion  only  of 
the  holding  the  argument  stood  or  fell  on 
the  success  or  failure  of  the  argument  on 
the  first  contention.  It  was  conceded  that  on 
the  findings  that  the  defendant  No.  8  was 
the  benamidar  of  his  father  defendant  No.  7 
it  could  not  be  urged  that  any  notice  on 
him  was  necessary. 

For  the  above  reasons  I  hold  that  the 
appeal  fails  and  is  accordingly  dismissed 
with  costs. 

N.  B.  Appeal  dismissed. 


[92  1. 0. 1926] 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1235  OF  1925. 

November  23,  1925. 
Present: — Mr.  Justice   Dalip  Singh. 
ALLAH  BAKHSH  AND  ANOTHER — 
PLAINTIFFS—APPELLANTS 

versus 

TBB  MUNICIPAL  COMMITTEE  OF 
ROHTAK  THROUGH  RAGHBIR  SARAN, 

SECRETARY  OF  THE  MUNICIPAL 

COMMITTEE,  ROHTAK— DEFENDANT 

— RESPONDENT. 

Limitation  Act  (IX  of  1908),  w  «5,  12—Tnne  allowed 
/or  copies,  calculation  of — Appeal  filed  with  defective 
vakalatnama— Subsequent  filing  of  valid  vakalat- 
natnn,  effect  of— Secretary  Municipal  Committee  sign- 
ing vakalatnama  —Ratification  by  President,  effect 
Oy — Extension  of  time — Discretion,  exercise  by  Appel- 
late Court—Punjab  Municipal  Act  (Til  of  1011),  s  W, 
proviso — Suit  for  declaration  of  ownership  of  site 
— Municipal  Committee's  ownership,  question  of. 

Time  allowed  for  copies  in  filing  an  appeil  should 
be  calculated  from  the  date  of  application  up  to  the 
date  when  the  copies  are  despatched,  and  not  merely 
up  to  the  date  when  they  aie  ready,  [p  966,  col  2,  p. 
967,  col  1] 

Ghulla  Singh  v.  Sohan  Singh,  60  Ind.  Cas  SIS,  3  L. 
280;  A.  I.  R.  1922  Lah  219,  4  L.  L  J  500,  Gurdit 
Singh  v  Charan  Dos,  T2  Ind  Cas  797;  A  I  K.  1922 
Lah  415  and  Municipal  Committee,  Chinwt  v  Bashi 
Ram,  69  Ind.  Cas.  895;  A  I.  R  1922  Lah  170,  relied 
upon. 

There  is  no  authority  for  the  proposition  that 
because  ouca  a  vakalatnama  has  not  been  objected  to, 
jt  is  good  for  all  purposes  and  that  an  appeal  filed 
Wv*fc  defective  vakalatnama  is  properly  filed, 


Nor  do?s  a  ne\r  power-of-attorney  validate  an  appeal 
so  far  as  the  time  for  filing  an  appeal  is  concerned. 
But  in  thebe  matteis  a  Court  should  not  be  tno  meti- 
culous especially  when  a  person  on  whose  behalf 
the  appeal  was  liled  has  accepted  or  ratified  the  action 
of  the  parson  who  filed  the  appeal  on  his  behalf,  [p.  967. 
cols  1&2] 

Gopai  Singh  v,  Bhaga,  69  Ind.  Cas.  365;  A.  I.  R. 
1921  Lah.  2'J6,  construed 

Khaira  v  Nathu,  55  Ind  Cas.  990,  2  U.  P  L  R  (L.) 
88,  Sri  Chandan  Bhuyav  Jlaroo  Sethi,  11  Ind  Cas. 
387,  130  L  J  544,  Mohammad  Ah  Khan  v.  Jasram, 
23  Ind  Cas.  104,  36  A  46,  11  A  L  J  1015,  Chhaun- 
nessa  Bibi  v.  ttasuar  Rahman,  5  lud  Cas,  532,  37  C. 
399  at  p  40G,  11  C  L.  J  285  and  Banwan  Rat  v. 
Chethru  Lai  AVn,  74  Ind  Cas  1033,  AIR  1924  Pat. 
114,  2  Pat  L  R  174,  referred  to 

Therefore,  uhero  a  Municipal  Committee  or  its 
President  has  endorsed  the  action  of  the  Secretary  in 
signing  the  vakalatnama  for  filing  an  appeal  on  behalf 
of  the  Municipal  Committee,  and  the  opposite  party  has 
not  objected  to  the  vakalatnama  as  originally  filed  in 
the  suit,  it  should  be  considered  that  the  Secretary 
was  empowered  by  the  Municipal  Ccmmittee  or  its 
President  to  instruct  the  Pleader  and  had  authority  to 
sign  the  rakalatnama  on  behalf  of  Municipal  Com- 
mittee [p  1)67,  col.  2] 

Under  the  above  mentioned  circumstances  piovisions 
of  s  5  of  thf  Limitation  Act  mny  also  be  invoked,  if 
necessary,  for  extending  the  time  for  filing  the  appeal. 
IP  967,  rol  2,  p  1)68,  col  1J 

If  a  ("curt  does  not  exercise  a  discretion  which  it 
might  have  exeroised,  it  is  open  to  the  Appellate  Court 
to  exercise  that  discietum.  [p  968,  col  11 

In  a  M.ut  for  a  declaration  that  the  plaintiffs  are 
owners  of  a,  «te,  which  arises  in  consequence  of 
Municipal  Committee's  refusal  to  peimit  the  plaintiffs 
to  build  on  the  Rite,  on  the  ground  that  there  is  a  dis- 
pute about  the  ownership  of  the  pile  between  the 
applicant  and  the  Municipal  Committee,  it  is  enough 
to  decide  whether  plaintiffs  are  entitled  to  the  property 
or  not  and  it  is  not  necessary  to  give  a  finding  as  to 
whether  the  property  belongs  to  the  Committee  or  not, 
[tbid] 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Karnal,  dated  the  27th  March 
1925,  reveising  that  of  the  Subordinate 
Judge,  Fourth  Class,  Rohtak,  dated  the  28th 
August  1924. 

Mr.  Shamair  Chand,  for  the  Appellants^ 

Lala  Jagan  Nath  Aggarwal,  for  the  Re- 
spondent. 

JUDGMENT,— In  this  appeal  Mr. 
Shamair  Chand  for  the  appellant  has,  first 
of  all,  contended  that  the  appeal  before  the 
learned  District  Judge  was  barred  by  time, 
because  the  time  to  be  allowed  for  copies 
should  be  calculated  from  the  date  of  appli- 
cation up  to  the  date  when  the  copies  were 
ready  for  delivery  and  jiot  up  to  the  date 
when  the  copies  were  despatched.  There 
is,  however,  one  ruling  of  this  Court  report- 
ed as  Ghulla,  Singh  v,  Sohan  Singh  (1)  which 
holds  the  contrary.  There  are  also  two 

(1)  CO  Ind  Cas,  818;  3  U  280;  A.  I  K,  1022  Lah  ?19: 
4  It.  L,  J.  500. 


[921.0.1926] 


ALLAH  BAKHSH  1>,  MUNICIPAL  COMMITTEE. 


Division  Bench  rulings,  Gurdit  Singh  v. 
Charan  Das  (2)  and  Municipal  Committee, 
Chiniotv.  Bashi  Ram  (3)  in  which  it  was 
held  that  time  should  be  reckoned  up  to  the 
date  of  despatch.  Therefore,  no  force  in 
this  contention. 

The  next  point  argued  by  Mr  Shamair 
Ohand  is  that  the  appeal  was  not  properly 
presented,  because  the  vakalatnama  of  the 
Pleader  representing  the  appeal  was  signed 
by  the  Secretary  of  the  Municipal  Committee 
and  the  Secretary  had  no  power  to  institute 
an  appeal.  It  seems  that  on  the  Sfith  of 
February  1925  the  point  was  noticed  by  the 
learned  District  Judge  and  at  that  time  the 
Pleader  for  the  respondent  stated  that  there 
was  a  resolution  of  the  committee  authoris- 
ing the  Secretary  to  file  the  appeal.  The  case 
was  adjourned  and  on  the  same  day  Counsel 
re  appeared  and  stated  that  there  was  no 
such  resolution  but  that  there  wasanendorse- 
ment  on  a  paper  by  the  President  to  the 
effect  that  the  copy  of  the  judgment  may  be 
sent  to  Lala  Nanak  Chand  to  iile  the  appeal 
etc.  The  case  was  again  adjourned  to  the 
26th  of  March  1925,  as  the  Pleader  for  the 
respondent  asked  for  time  to  produce  law 
on  the  subject  On  the  26th  of  March  1925 
a  power  of-attorney  signed  by  the  President 
was  put  in.  Tiie  learned  District  Judge 
held,  however,  that  as  the  suit  had  been 
defended  bv  the  Municipal  Committee  and 
the  lakalatnama  in  the  suit  was  signed  by 
the  Secretary  and  no  objection  had  been 
taken  to  the  vakalalnama  bv  the  plaintiff  and 
as  further  a  new  povver-of-attornev  signed 
by  the  President  had  been  put  in,  therefore, 
on  the  authority  of  Gopi/  Singh  v.  Bhaqa  (1) 
and  of  Khaira  v.  Nathu  (5)  the  appeal  was 
properly  filed  Hut  Mr  Shamair  Chand 
argues  that  Gopal  Singh  v.  Bhaqi  (I)  is  not 
an  authority  for  the  proposition  that  the 
vakalatnama  not  objected  to  in  the  suit 
would  be  good  for  purposes  of  appeal  and 
that  Khaira  v.  Nathu  (5)  does  not  apply  to 
the  facts  of  the  case,  as  here  there  was  no 
question  of  oversight,  though  there  might 
have  been  a  mis-apprehension  of  law.  I 
think  that  Gopal  Singh  v.  Bhaga  (4)  does  not 
lay  down  that  once  a  vakalatnama  has  nob 
been  objected  to  it  is  thenceforward  good 
for  all  purposes  and  that  an  appeal  tiled 
with  that  defective  vakalatnama  is  proper- 
ly filed.  Mr.  Shamair  Chand  further  con- 

(2)  72  Ind  CJ.J  797,  A  I  R  1022  Lab  115. 

(3)  «9  lad  Gas  895,  AIR  1922  Uh  170. 

(4)  69  Ind  Gas.  365;  A  I  R  1024  Lah.  296. 

(5)  55  Ind,  Cas,  990;  2  V.  V,  l^  «,  (M  88, 


967 

tends  on  the  authority  of  Sri  Chandan 
Bkui,a  v  llaroo  Sethi  (6),  a  Division  Bench 
ruling  of  the  Calcutta  High  Court,  that  a 
new  power  of-attorney  does  not  validate  aa 
appeal  so  far  as  the  time  for  filing  an  appeal 
is  concerned,  in  other  wor-is,  that  it  lias  no 
retrospective  effect.,  and  lie  ha^  also  cited 
Mohammad  Ah  Khin  v  Jatram  (7)  in  sup- 
poit  of  hib  contention  Mr,  Jagan  Nalh  m 
reply  has  lehed  on  Chhaijunnessct,  Bibi  v. 
Kasirar  Rahman  'ty  and  on  Banwaii  v. 
Chetiru  Lai  Rai  ('.))  Tiieie  is  no  doubt 
that  Sri  Chandan  Biiuya  v.  JIaroo  Sethi  (6), 
is  the  ruling  moat  in  point  bo  far  as  the 
facts  of  the  case  are  concealed,  but  it  seems 
to  me  that  the  general  principals  of  the 
other  rulings  lay  down  that  in  these  matters 
a  Court  should  not  be  too  meticulous,  special- 
ly when  the  person,  on  whose  behalf  the 
appeal  was  filed,  has  accepted  or  ratified 
the  action  of  the  person  who  filed  the 
appeal  on  his  behalf  I  think  our  own 
Court  in  Khaira  v  Nathu  (5)  also  seems  to 
lean  to  the  view  that  in  these  matters  the 
more  lenient  view  should  be  taken  and  as 
the  Municipal  Committee  or  its  President 
has  undoubtedly  endorsed  the  action  of  the 
Secretary  and  as  the  plaintiff  did  not  object 
to  the  vakalatnama  oiigmaliy  filed  in  the 
suit,  I  think  it  should  be  held  that  the  Sec- 
retaiy  was  empowered  by  the  Municipal 
Committee  or  by  its  Piesident  to  instruct 
the  Pleader  and  therefore  had  authority  to 
sign  the  vakalamnma  of  the  Pleader  on 
behalf  of  the  Municipal  Committee.  Fur- 
ther, having  regard  to  all  the  circumstances 
of  the  case  I  should  be  inclined  to  extend 
the  time  under  tho  provision  of  s  5  of  the 
Indian  Limitation  Act  if  I  considered  it 
necessary  to  do  so.  No  doubt,  there  was 
a  delay  of  a  month  before  the  vakalatnama 
signed  by  the  President  was  put  in  and  this 
delay  has  n<>t  been  successfully  explained 
but  in  view  of  tho  conflict  of  rulings  on  the 
point  it  is  possible  that  the  legal  adviser  of 
the  Municipal  Committee  did  not  consider 
that  it  was  necessary  to  have  a  vakalat- 
nama  signed  by  the  President.  Mr.  Sha- 
mair Chand  has  quite  rightly  laid  stress  on 
this  delay  and  I  have  been  pressed  by  the 
argument  on.  this  point.  However,  as  I  have 
stated  above  in  all  the  circumstances  of  the 

(6    11  Ind  Gas  387,  13  C  L  J  5H 
(7)  LM  Ind   Cis   161,  3G  A  46,  11  A  L,  J   1015 
(8;  o  Iixd  Oaa   53J,  37  C.  3J'J  at  p  406, 11  C.  L.  J. 
283 
(9)  74  lad  Oas,  1033;  A,  t,  R  1921  Pat    114,  2  Tat. 


VEERANAN  AMBALAM  V.  AYYAOHI  AMBALAM.  [92  I   0.  192C] 


case  I  would  exercise  my  discretion  in  the 
matter  and  if  necessary  extend  the  time  for 
filing  the  appeal.  It  is  clear  law  and  not 
contested  before  me  that  if  a  Court  below 
does  not  exercise  a  discretion  which  it 
might  have  exercised,  it  ia  open  to  the 
Appellate  Court  to  exercise  that  discretion. 
This  point,  therefore,  is  also  repelled. 

Lastly,  Mr.  Shamair  Chand  has  raised   a 
cuiious    contention.    He   argues  that  this 
suit  arose  because  the  Municipal  Committee 
refused  the  plaintiff  permission  to  build  on 
the  land  under  the  proviso  to  s.  1!J3  which 
empowers  a  Municipal  Committee  to  refuse 
permission  to  build    on  the  ground  that 
there  is  a  dispute  about  the    ownership  of 
the  site  between  the  applicant  and  the  Muni- 
cipal Committee.    Mr.  Shamair  Chand  con- 
tends that,  therefore,  it  is  necessary  in  a  case 
of  this  kind  to  decide    not  only  whether  the 
plaintiff  is  entitled  to  the  properly  but  also 
to  decide  whether  the  Municipal  Committee 
is  entitled  to  the  property  because  in  either 
event  a  decision  by  the  Court  would  put  an 
end  to  the   dispute  between  the  applicant 
and  the  Municipal  Committee  and  then  the 
terms  of  the  proviso  to    s.   193  would  not 
empower  the  Municipal  Committee  to  refuse 
permission  to    build.    I  am,  however,    of 
opinion  that  the  Legislature  did  not  mean 
to  confer  any  such  right  on  an  applicant  to 
put  a  Municipal  Committee    to  proof  of  its 
title  to  land  in  dispute.    On  the  contrary, 
by    not  directing  that    a  suit    should    be 
brought  by  an    applicant  when  pei mission 
was  refused  by  the  Municipal  Committee  on 
this  ground  it  by  implication  left  the   par- 
ties to  their  ordinary  remedies  at  law,    The 
plaintiff,  therefore,  could  only  ask  fora  de- 
claration that  the  site    was  his.    He  could 
not  ask  for  a  declaration  that  the  site  was 
not  the  Municipal   Committee's.    Fuither, 
this  point  was  not  put  into  issue  and    does 
not  seem  to  have  been  argued  in   this  light 
before  the  learned  District  Judge  or  before 
the  Trial  Court.    Mr.  Shamair  Chand  iclies 
on  the  words  of  the  plaint  which  do    slate 
that  the  site  does  not  belong  to  the  Muni- 
cipal Committee  as  well  as  assert  that  it  be- 
longs to  the  plaintiff,  but  having  regard  to 
the  course  of  the  suit  I  think  that  this    was 
nothing  more  than  the  usual  tautology  of 
the  plaint,  and  I  do  not  think  that  the  point 
should  be  allowed  to  be  raised   for  the  first 
time   in    second    appeal,    especially    as  it 
would  necessitate  a  remand  to  enable  the 
Municipal  Committee  to  prove  its  title. 
J,  therefore,  dismiss  the  appeal  but  in  tfce 


peculiar  circumstances  of  the  case  I  leave 
the  parties  to  bear  their  own  costs,  through- 
out. 
R.  L.  Appeal  dismissed. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  644  OF  1923, 

September  23,  1925. 

Present-  —  Justice  Sir  Charles  Gordon 

Spencer,  KT.,  end  Mr.  Justice  Madhavan 

Nair. 

P.  V.  VEEFANAN  AMBALAM— 
DEFENDAN  r—  PETITIONER 

versus 
AYYAGHI  AMBALAM—  PLAINTIFF— 

RESPONDENT. 

Contract  Act  (IX  of  ]87tyt  ss  30,  65—  Chit  fund 
transaction,  whether  lottery  Suit  by  nun-prize-winner 
(ujauist  btaLcholder  for  return  of  subscription,  whe- 
ther -maintumaljIe  —  C'onliact,  whether  void  from  in- 


ception 

A  chit  fund  consisted  of  500  suhsciibcis,  each  sub- 
scribing Ra  "2  per  mensem  At  the  end  of  each 
month  a  chit  was  drawn  bv  lot  and  the  winner  was 
paid  Ks  100  Thereafter  his  connection  with  the  chit 
fund  ceased  altogether  and  he  -was  not  under  any 
obligation  to  continue  his  subscriptions  According  to 
the  iuloB  of  the  fund,  the  drawing  would  thus  goon 
for  50  months  when  the  chit  fund  would  be  wound  up, 
the  stakeholder  paying  back  to  the  remaining  sub- 
so  iibers  the  total  amount  subscribed  by  each  of  them. 
In  B  suit  by  a  non-prize-wmnoi  after  subscribing  for 
4S  instalments  for  return  of  amount  of  subscription 
^ith  interest 

lldd,  that  the  chit  fund  tiansaction  was  a  lottery 
and  the  plaintiff  was  not  entitled  to  recovei  the 
amount  either  by  vntue  of  the  contract  or  by  reason 
of  any  obligation  under  s  03  of  the  Contract  Act  as  if 
the  contiact  had  become  void  [p  9G9,  col  2,  p  973,  col. 

Nayappa  Pillai  v  Arunackalani  Chetty,  85  Ind  COB 
1016,  47  A)  L  J  876,  A  I  K.  1^25  Mad  281,  Sankunm 
v  Ikkora  Kittti,  52Ind  CAB  980,  (1911);  M  W  N  570, 
10  L.  W  155,  37  M  L  J  200  and  Richards  v  Starck, 
(1911)  1KB  20C,  SOL  J  K  B  213,  103  L  T  813,  27 
T  L  II  21),  followed 

Shanmuga  Mudahar  v  Kumaraswami  Mudali,  90 
Ind  Cas  420,  21  L.  W  403,  A  I  R  1925  Mad  870; 
(1925)  M  W  N  655,  48  M  661,  dissented  from 

Wallingford  v  Mutual  Society,  (18t?0)  SAC  685,  50 
L  J  Q.  B  49,  43  L  T.  258,  29  W  K,  81,  Kamakshi 
Achan  v  Appaw*Pillai,  1  M.  H.  0  R  448  and  Vasu- 
devanNambudii  v.  Mammod,  22  M,  212,  8  Ind.  Dec. 
(N  s)  151(  distinguished. 

Petition,  under  B.  25  of  Act  IX  of  1887, 
praying  the  High  Court  to  revise  a  decree 
of  the  Court  of  the  District  Mursif,  Melur, 
dated  the  12th  March  1923,  in  8.  0.  8.  No. 
1281  of  1922. 

Mr,  A.  N.  Krishna   Aiyangar,    for 
Petitioner, 


[92  L  0. 1926] 


VBERANAN  AMRAT.AM  V.  AYTAOHI  AMRAtAM. 


060 


Mr.  Kt  V.  tirinirasa  Iyer,  for  the  Re- 
spondent. 

JUDGMENT. 

Spencer,  J, — Two  questions  have  been 
argued  in  this  civil  revision  petition.  The 
first  is  whether  the  chit  transaction,  in  which 
the  petitioner  was  the  promoter  and  the  re- 
spondent was  a  subscriber,  partook  of  the 
character  of  a  lottery  or  consisted  of  wager- 
ing agreements  between  the  subscribers 
and  the  promoter.  The  second  is  whether 
the  respondent  is  entitled  to  recover  the 
money  which  he  subscribed  either  upon  the 
terms  of  the  contract  between  him  and  the 
petitioner,  ur  by  reason  of  the  obligation 
cast  by  s.  65,  Indian  Contract  Act,  upon 
the  persons  who  have  received  any  advan- 
tage, of  restoring  it  upon  an  agieement  or 
contract  becoming  void  or  being  discovered 
to  be  void. 

The  mere  fctct  that  the  order  in  which 
members  of  a  Mutual  Benefit  Society  take 
their  benefits  is  determined  by  the  drawing 
of  lots  does  not  constitute  the  transaction  a 
lottery  [Vide,  Wallingford  v.  Mutual  Society 

0)1     " 

In  the  particular  form  of  chit  transaction 
that  is  before  us,  500  persons  undertook 
each  to  subsciibe  two  rupees  at  each  instal- 
ment and  there  were  to  be  50  drawings  at 
each  of  which  the  winner  was  to  get  Rs  100 
and  walk  out  without  any  liability  to  sub- 
scribe for  any  subsequent  instalments  In 
other  words  the  promoter  laid  odds  of  98 
to  2  at  the  first  drawing  against  any  par- 
ticular subscriber  drawing  the  winning 
ticket.  At  the  second  drawing  he  laid  odds 
of  90  to  4  with  each  of  the  remaining  499 
subscribers,  and  so  on  till  50  drawings  had 
taken  place  and  50  subscribers  had  drawn 
the  prize  of  Rs  100. 

The  promoter  was  secure  against  loss  as 
he  got  two  rupees  from  each  of  the  SCO 
subscribers  for  the  first  instalment  and  he 
paid  out  only  Rs.  100  to  the  winner.  After 
the  50th  drawing  those  who  had  not  drawn 
a  prize  were  entitled  to  get  their  money 
back  without  interest.  The  promoter  was 
able  to  pay  the  prizes  to  those  who  drew  the 
winning  numbers  out  of  the  subscriptions 
paid  into  his  hands  by  the  otheis,  and  he 
recouped  himself  from  loss  at  the  end  by 
putting  the  money  left  in  his  hands  from 
each  instalment  of  subscriptions  out^to 
usury  and  pocketing  the  interest,  The 
chance  of  getting  a  prize  of  Rs,  ICO  for  a 

(1)  (1880)  5  A.  0.  C85,  50  L.  J  Q  B  49;  43  L,  T. 
258;  29  W,  K,  81, 


payment  of  two  rupees  at  the  first  drawing 
four  rupees  at  the  second  and  six  rupees  at' 
the  third  and  so  on,  free  from  any  further 
liability  to  the  winner,  was  the  bait  for 
attracting  investors.  The  adventitious 
character  of  the  gains  also  had  the  effect  of 
making  the  whole  transaction  a  lottery  and 
the  agreements  between  the  promoter  and 
the  subsciibers  wagering  agreements  within 
the  meaning  of  s  30,  Contract  Act.  All  who 
took  part  in  what  the  law  regards  as  an  un- 
lawful transaction  were  in  pan  dehcto  and 
no  participator  in  it  can  invoke  the  help  of 
the  law  for  enforcing  his  claims  to  recover 
any  money  entrusted  to  any  person  to  abide 
the  result  of  the  drawings,  even  though 
the  return  of  sums  subscribed  by  those  who 
were  not  lucky  enough  to  draw  winning 
tickets  was  one  of  the  conditions  of  the 
transaction  1  agree  with  the  opinion  of 
Odgeis,  J  ,  in  Nagappa  Pillai  v.  Arunacha- 
lam  Chetty  (2)  that  the  agreement  to  re-pay 
the  subscriptions  in  a  case  like  this  is  not 
•seveiable  fiom  the  prize  arrangement. 
Neither  can  a  subscriber  invoke  s.  (55  of  the 
Contract  Act,  for  the  agreement  in  this  case 
did  not  become  void  nor  was  it  discovered 
to  be  void  but  it  was  void  for  illegality 
from  its  inception  (see  Ind ian  Conti act  and 
Specific  Relief  Acts  by  Pollock  and  Mulla, 
1th  Edition,  pages  365— 368)  and  the  object 
of  the  subscription,  which  was  the  formation 
of  an  association  for  conducting  'an  unlaw- 
ful system  of  lottery  has  been  accomplish- 
ed When  money  has  been  paid  under  an 
illegal  contract  which  has  been  partially 
carried  into  effect,  it  cannot  be  recovered 
back  [Vide  Kearley  v.  Thomson  (3)J 

The  respondent's  Vakil  relied  upon 
Shanmuga  Mudahar  v  Kitinarasicami 
Mudah  (4),  which,  with  due  respect,  I  feel 
difficulty  m  regarding  as  a  decision  based 
on  sound  principles.  That  case  and  the  one 
before  us  possess  the  common  featuie  that 
the  pi isse  winners  in  the  first  50  drawings 
weie  not  bound  to  subscribe  to  instalments 
aftei  they  had  won  a  prize  The  signifi- 
cance of  this  feature  in  a  chit  transaction, 
which  makes  it  a  gamble,  has  been  missed 
by  the  learned  Judges.  In  In  re  Dorai- 
sami  Mudaly  (5)  there  was  a  similar  feature 

(2)  85  Iiid  Cas  1016,   47  M  L  J  876,    AIR  1925 
Mad  281 

(3)  (1800)  24  Q   B  I)  742,  59  L  J  Q  B  288,  63  I,  T 
130,  38  W   R  614,  54  J  P  801 

(4)  80  Ind  Cas  420,  21  L  W    403,  A  I,  R  1025  Mad 
870,  (1025)  M  W  N,  655,  48  M.  CGI. 

(f>)  1  Won  251, 


970 


VBBRANAN  AMB1L1M  V.  AYJfACHI  AMBALAM, 


in  a  chit  transaction  and  it  was  observed  by 
Collins,  0.  J.,  and  Shephard,  J/ 

"This  is  clearly  a  lottery,  for  it  depends 
entirely  on  the  drawing  of  lots  whether  or 
not  the  prizs  of  Us,  100  falls  to  any  given 
subscriber  As  the  priz*  winner  thereafter 
ceases  to  bs  a  subscriber  to  the  fund,  it 
must  nec^ssirily  follow  that  the  rest  out  of 
whodtf  subscriptions  the  prize  has  been  paid 
and  also  continue  to  be  subscribers,  are  the 
losers.11 

In  Shanmiigna  Mudali  v.  Kumzraswami 
Mudali  (4)  Venkatasubba  Ua-o,  J.,  expresses 
an  opinion  that  the  fact  that  the  money  for 
the  prizss  really  comes  out  of  the  interest 
on  the  capital  fund  contributed  differen- 
tiates this  case  from  other  cases  of  lotteries. 
He  says  at  page  109*. 

"What  the  449  members  lose  is  the  in- 
terest upon  their  money  and  what  the  first 
49  members  gain  is  a  portion  of  the  interest 
thus  lost  by  the  other  subscribers." 

But  in  Richard*  v.  Starch  (G)  it  was  held 
that  the  loss  of  interest  upon  a  subscriber's 
subscription  was  a  sufficient  loss  to  make  a 
contract  resting  on  a  future  event  of  an  un- 
certain nature  a  gaming  or  wagering  con- 
tract. In  the  present  chit  transaction,  out 
of  500  subscribers  there  were  450  losers  of 
interest  on  their  money  deposited  with  the 
promoter.  The  remaining  50  made  a  gain, 
the  amount  of  which  varied  according  to  an 
order  determined  by  the  drawing  of  lots 
which  thus  depended  not  on  skill  but  on 
pure  chance. 

It  is  true,  as  Rimesam,  J  ,  observes,  that 
the  Criminal  Law  by  s.  291A,  Indian  Penal 
Cjle,  only  makes  punishable  th<3  keeping 
of  an  offi;efor  holding  a  lottery  and  the 
publication  of  proposals  for  drawing  a 
lottery.  The  Civil  Lu\v,  however,  goes  fur- 
ther and  prevents  obligations  arising  out  of 
lotteries  being  enforced  in  a  Couit  of  Law, 
whether  the  lottery  is  held  in  an  office  to 
which  the  public  have  access  or  in  a  piivate 
place  to  which  ad  mission  is  not  to  be  had 
for  the  m<n*e  asking.  The  learned  Judges 
were  evidently  much  influenced  in  their 
decision  by  the  caaa  of  WtilUn<jf>>r>l  v. 
Mutual  Society  (1)  That  was  a  cass  of 
legitimate  businebs  free  from  speculation 
in  which  there  were  no  losers  and  no  oue 
gained  an  uneirned  sum  of  money  by  the 
chance  of  drawing  lots.  m  The  samo  may  be 

(6)  (1911)  1  K  B    233;  80  L.  J.  K.  B.  213;  103  L,  T. 

813.  27  T.  L   R  20. 

21  L.  W.  -{Ed.]  * 


[92  L  0. 1926J 

said  of  the  kuri  chit  dealt  with  in  Vasudevan 
Nambudri  v.  Mammod  (7). 

The  civil  revision  petition  is  allowed  with 
costs  and  the  plaintiff's  suit  is  dismissed. 

Plaintiff  and  defendant  will  each  bear 
their  own  casts  in  the  trial  of  the  small 
cause  suit  in  the  District  Munsifs  Court. 

Madhavan  Nalr%  J.— I  have  had  the 
advantage  of  reading  my  learned  brother's 
judgment  with  which  I  agree.  t  The  ^suifc 
which  has  given  rise  to  this  civil  revision 
petition  was  instituted  by  the  respondent 
for  the  recovery  of  a  sum  of  Rs.  119-13  5, 
being  the  principal  and  interest  due  to  him 
on  account  of  the  48  instalments  of  sub- 
scriptions paid  by  him  to  a  chit  fund 
conducted  by  the  petitioner.  The  chit  fund 
consisted  of  503  subscribers,  each  subscrib- 
ing Rs.  2  per  mensem.  At  the  end  of  each 
month  a  chit  was  drawn  by  lot  and  the 
winner  was  paid  Rs.  100.  Thereafter  his 
connection  with  the  chit  fund  ceased  alto- 
gether and  he  was  not  under  any  obligation 
to  continue  his  subscriptions.  According 
to  the  rules  of  the  fund,  the  drawings  would 
thus  go  on  for  50  months  when  the  chit 
fund  would  be  wound  up,  the  stake-holder 
paying  back  to  the  remaining  subscribers 
the  total  amount  nbedby  eachof  them. 

The  respondent.  jn-prize-winner,  after 
subscribing  for  instalments  asked  the 
petitioner,  the  Aeholder,  to  return  to  him 
with  interest  tne  money  he  has  subscrib- 
ed. The  petitioner  refusing  to  refund 
the  amount  contended  that  the  chit  fund 
was  a  lottery  and  that  a  suit  was  not  main- 
tainable to  recover  the  amount.  The  learn- 
ed District  Munsif  holding  that  the  chit  in 
question  is  not  a  lottery  so  far  as  non-prize- 
winners like  the  plaintiff  are  concerned, 
gave  him  a  decree  for  the  amo'urit  claimed. 

It  is  argued  for  the  petitioner  that  the 
transaction  set  forth  above  constitutes 
"agreements  by  way  of  wager1'  between  the 
stakeholder  and  the  subscriber  and  as 
such  is  void  both  on  principle  and  on  the 
authority  of  the  decisions  of  this  Court 
and  that,  therefore,  the  decree  of  the  lower 
Court  should  b3  s^t  aside  In  Sunkunni 
v.  Ikkora  Kutti  (8),  it  was  held  by 
Phillips,  J ,  that  a  *'fcurf '  conducted  on 
similar  lines  is  a  lottery  and  that  the 
plaintiff's  suit  to  recover  the  money  paid 
is  not  maintainable.  This  decision  was 
followed  by  Krishnan  and  Odgers,  JJ.,  in 

(7)  22  M  2J2;8Ind  Dec.  (N.  a.)  151. 

(8)  52  Ind.  Caa,  989,   (1919)  M.  W.  $T,  570;  10  I,,  W 
J55;  37  M,  L  J.  209. 


VBERANAN  AMBALAM  V,  AYVAOHI  AMBALAM, 


[92  I,  0. 1926] 

Nagappa  Filial  v.  Arunachalem  Chetty  (2J, 
though  the  learned  Judges  differed  on  the 
question  whether  it  was  possible  to  hold 
that  the  agreement  to  re-pay  the  subscrip- 
tions at  the  end  of  the  period  was  severable 
from  the  arrangement  to  give  the  priza, 
In  Shanmuga  Mudahar  v,  Kumaraswami 
Mudali  (4)  Ramesam  and  Venkatasubba 
Rao,  JJ.,  did  not  follow  these  decisions,  their 
opinion  being  mainly  influenced  by  a  deci- 
sion of  the  House  of  Lords  in  Walling  ford 
v.  Mutual  Society  (1).  It  may  be  stated  that 
the  chit  fund  in  all  those  cases  was  conducted 
in  the  same  manner  as  in  the  present  case, 
the  successful  drawer  of  the  ticket  having 
nothing  to  do  with  the  chit  fund  after  draw- 
ing his  prize 

In  the  light  of  these  decisions  and  of 
what  is  meant  by  an  "agieement  by  way 
of  wager11,  we  have  to  determine  whethei 
the  present  case  has  been  rightly  decided 
by  the  learned  District  Munsif. 

'The  Indian  Contract  Act  does  not  contain 
any  definition  of  a  "wagering  contract".  Sec- 
tion 30  states  that  agreements  by  way  of 
wager  are  void.  In  Thacker  v.  Hardy  (9), 
Cotton,  L.  J  ,  said.— - 

"The  essence  of  gaming  and  wagering 
is  that  one  party  is  to  win  and  the  other  to 
lose  upon  a  future  event  which  at  the  time 
of  the  contract  is  of  anunccitain  nature, 
that  is  to  say,  if  the  event  turns  one  way 
A  will  lose,  but  if  it  turns  out  the  other 
way  he  will  win.11 

In  Subramanian  Pattar  v.  Kiradadasan 
(10)  it  was  pointed  out  that  in  a  chit  fund 
transaction  the  contracting  parties  are  the 
stakeholder  on  the  one  side  and  each  of 
the  subscribers  on  the  other  side,  and  there 
are  as  many  separate  contracts  aa  there  are 
subscribers  On  analysis  it  will  be  found 
that  the  contract  of  the  stakeholder  \uth 
the  subscribers  in  the  present  case  partakes 
of  the  nature  of  a  wagering  contract.  As 
pointed  out  in  my  learned  brother's  judg- 
ment- 

"The  promoter  laid  odds  of  98  to  2  at  the 
first  drawing  against  any  paiticular  sub- 
scriber drawing  the  winning  ticket.  At  the 
second  drawing  he  laid  odds  of  95  to  4 
with  each  of  the  remaining  49J  subscribers, 
and  so  on  till  50  drawings  had  taken  place 
and  50  subscribers  had  drawn  the  priza  of 
Rs  1U0.1' 

(9)  (1879)  4  Q  B,  D.  683,  48  L  J.  Q  B.  289;  3D  L  T, 
595,  27  W.  R.  158. 

10)  Ifl  lad,  C<*s,  686;  (1912)  W,  N,  1235, 


971 


This  shows  that  the  arrangement  is  real- 
ly a  bet  between  the  subscribers  and  the 
stakeholder  as  to  how  a  future  event  of  an 
unceitain  nature,  i.  e.  the  drawing  of  a 
winning  lickefc  will  eventually  turn  out. 
If  a  subscriber  happened  to  draw  one  of 
the  "winning  tickets11,  r.  e  ,  if  the  uncertain 
event  turned  one  way,  obviously  he  would 
gain  an  incieased  amount  of  money;  would 
ho  lose,  if  the  event  turned  out  the  other 
way? 

Since  according  tothe  rules,  the  non- prize- 
winners get  back  theirsubscripticn  amount, 
it  is  argued  that  the  present  case  falls 
within  the  principle  of  the  decisions  in 
lyyanaii  Kone  v  Vidoomada  Kone,  S  A. 
No.  169  of  1857,  Kamakshi  A  chart  v  Ap- 
pzvu  Pillai  (11)  and  Vasudevan  Nambudri 
v.  Mammod  (7),  wherein  it  was  held  that,  in 
chit  fund  transactions  to  which  subscribers 
contribute  monthly  subsciiptions,  each  sub- 
scriber in  his  turn  as  determined  by  lot 
taking  the  entire  subscription  for  one 
month,  there  was  no  element  of  chance 
or  risk,  the  money  paid  by  each  subscriber 
being  eventually  returned  to  him.  In 
Kamakshi  Achai  i  v  Appant  Pdlai  (11), 
such  a  transaction  was  thus  characterised 
by  the  learned  Judges 

"It  is  not  the  case  of  a  few  out  of  a  number 
of  subscribers  obtaining  prizes  by  lot.  By  the 
arrangement  all  get  aieturn  of  the  amount 
of  their  contributions.  It  is  simply  a  loan 
of  the  common  fund  to  each  subscriber  in 
turn,  and  neither  the  right  of  the  subscribers 
to  the  return  of  their  contributions,  nor  to 
a  loan  of  the  fund  is  made  a  matter  of  risk 
or  speculation.  No  loss  appeals  to  be  ne- 
cessaiily  hazarded,  nor  any  gain  made  a 
matter  of  chance  " 

I  do  not  think  the  same  can  be  said  of  the 
transaction  in  the  present  case  I  have 
already  shown  how  the  subscriber's  gain  is 
made  a  matter  of  chance  As  regards  the 
loss,  the  plaintiff,  no  doubt,  gets  back  the 
entire  capital  which  he  has  subscribed.  In 
one  sense,  therefore,  it  is  true  that  the  trans- 
action involves  no  loss  in  any  event  to  the 
plaintiff  as  he  is  to  have  his  money  return- 
ed to  him  but  he  loses  his  interest.  In 
England  it  has  been  pointed  out  in  two 
cases  of  wagering  contracts,  simil  ir  in  this 
respect  (nz  ,  loss  of  interest)  to  the  present 
c  Vie,  t  lul  this  loss  "of  interest"  is  *  suflluently 
a  loss  r.'j  !» ring  the  contract  within  the  spirit, 
though,  not  perhaps  within  the  actual 

(U)  UUiO.R.448, 


972 


VEERANAN  AMBALAM  V.  AYFACHI  AMBAUM. 


[92 1.  0. 1926J 


wording,  of  the  definition11  of  a  wagering 
contract  [see  Richards  v.  Starck  (6)j,  In  In  re, 
Doraisami  Mudaly  (5)  in  which  also  as  in  the 
case  before  us,  the  prize-winner  after  secur- 
ing the  prize  ceased  to  be  a  subscriber, 
the  fund  closing  after  a  stated  period  with 
a  refund  of  their  subscriptions  to  the  un- 
successful members,  it  was  held  by  Collins, 
0.  J.,  and  Shephard,  J.,  that  the  transaction 
is  clearly  a  lottery,  "for  it  depends  entirely 
on  the  drawing  of  lots  whether  or  not  the 
prize  of  Rg.  100  falls  to  any  given  subscrib- 
er.11 The  learned  Judges  state  : — 

"As  the  prize  winner  thereafter  ceases 
to  be  a  subscriber  to  the  fund,  it  must 
necessarily  follow  that  the  rest  out  of 
whose  subscription  the  prize  has  been  paid 
and  also  continue  to  be  subscribers,  are 
the  losers.  The  case,  therefore,  is  quite 
different  from  that  in  Kamakshi  Achan  v. 
Appavu  Pillai  (I1,».M 

These  decisions  were  not  brought  to  the 
notice  of  the  learned  Judges  in  Shantnuga 
Mudali  v.  Knmaraswamt  Mudali  (4). 

In  my  view,  the  agreement  in  this  case 
shows  that  the  plaintiff  gave  his  subscrip- 
tions to  the  defendant  upon  the  terms  that, 
in  an  uncertain  future  event,  he  was  to 
recover,  if  that  event  went  one  way,  the 
sum  subscribed  with  considerable  incre- 
ment ;  and,  in  the  other  event,  he  was  to 
recover  the  total  amount  subscribed  by  him 
but  without  interest.  This  means  that  the 
transaction  is,  in  substance,  a  wagering 
contract,  which  may  be  described,  in  the 
language  of  Ohannell,  J.,  in  Richards  v. 
Starck  (6)  **as  a  bet  on  terms  very  favour- 
able to  the  plaintiff.1' 

For  the  above  reasons  I  am  of  opinion 
that  the  decision  in  lyyanar  Konev.  Vidoo- 
mada  Kone,  8.  A.  No.  169  of  >  1857 
Kamakshi  Achari  v.  Appavu  Pillai  (11) 
and  Vasudcvan  Nambndri  v.  Mammod 
(7)  are  clearly  distinguishable  and  that 
the  chit  fund  transaction  in  this  case 
is  an  agreement  by  way  of  wager  and  is, 
therefore,  void. 

In  the  decision  in  Shanmuga  Mudali  v. 
Kumaraswami  Mudah  (4)  strongly  relied 
on  by  the  respondent  the  learned  Judge, 
Venkatasubba  Rao,  J.,  states  :  "Theie  is 
some  element  of  chance  in  regard  to  the  first 

4D  subscribers  ; but  the  dominant 

feature  of  the  transaction  is  that  it  enables 
a  large  number  to  gradually  lay  by  money 
and  receive  their  savings  in  a  lump  sum 


and  the  scheme  is  in  their  case  an  incen- 
tive to  thrift."  With  due  respect  to  the 
learned  Judge,  I  am  inclined  to  think  that 
it  cannot  be  said  that  the  primary  object 
of  a  person  in  taking  a  chit  in  a  fund  like 
the  present  one  is  to  lay  by  money,  for 
receiving  it  back  in  a  lump  sum.  Tho 
chance  of  winning  a  prize  of  Rs.  100  on 
payment  of  a  subscription  of  Rs.  2  at  the 
first  drawing,  Rs,  4  at  the  second  drawing 
and  so  on  during  the  fifty  drawings  is  the 
attraction  which  tempts  the  subscribers  to 
join  in  such  a  chit  fund. 

In     arriving    at    their     conclusion    the 
learned  Judges    in  Shanmuga    Mudali  v. 
Kumaraswami  Mudali  (4)  were    mainly  in- 
fluenced by  the  decision  of  the  House  of 
Lords  in  Wallingford  v.  Mutual  Society  (I). 
In  that  case  a  society  called  the  "Mutual 
Society11  was  registered    under    the  Com- 
panies Act.     Its  declared  object    was  to 
accumulate  capital  by  means  of  monthly 
subscriptions    from    members,  to    advance 
such  capital  to  the  members  on  rotation,  to 
secure  payment  of  such  advances  by  taking 
and  holding  real  or    other   securities  and 
ultimately  to  divide  among  the  members 
all  the  profits  that   had   been  made.    The 
whole  mode  of  operation  of  the  Society  ap- 
peared to  be  this  ;     To  obtain  subscriptions 
from  members  to  advance  them  money  on 
inteiest  upon  "certificates  of  appropriation." 
By  Art.  27  it  was  declared  that  "appropria- 
tions shall  be  allotted  in  two  ways,  the  first 
and  every  fourth  one  thereafter,  by  drawing, 
fiee   of  any  premium    or    interest,   while 
those  intermediate  shall  be  allotted    to  the 
member  or  members  tendering  the  highest 
premium  for  the  same  respectively.11      All 
appropriations  were  to  be  re-paid  by  equal 
quarterly  payments  extending  over  twenty 
years   from  the  advance.    It  was  held  that, 
though  the    benefits  of   the   society  were 
made  available  to  the  members  by  a  process 
of  periodical  drawings,  the  society  did  not 
come  within  the    mischief  of  the  Lottery 
Acts  and  that  the  transaction  it  carried  on 
was  not  a  gambling  transaction.  The  facts  of 
the  case  show  that  amongst  the  subscribers, 
there  were  no  losers  and    no  one   derived 
any  undue  gain  by  the  chance  of  drawing 
lots.    As  pointed  out  in  Halsbury's  Laws  of 
England,    Vol.    XV,     page    301:     "Where 
the  scheme  has  for  its  object  the  carrying 
on  of  a  legitimate  business  the  fact  that  it 
provides  for  the   distribution  of  its  profits, 
in  certain    events,  by  lot  will  not  vitiate 
the  scheme/1    The  case  resejnbles  the 


2  I.  0.  1926]          ADDBPALLl  VBNKA.TA  GARUNADHA  V.  AKELLA 


RAMIAH. 


973 


eions  in  Kamakshi  Aehari  v,  Appavu  Pillai 
(11)  and  Vasudevan  Nambudri  v.  Mammod 
(7)  already  referred  to  and  on  principle  is 
clearly  distinguishable  from  the  present 
case.  It  may  be  mentioned  that  Ramesam, 
J  ,  deals  with  the  case  in  SIianmugaMiidah 
v.  Kumaraswami  Mitdah  (4)  as  a  suit  to  en- 
force the  terms  of  a  contract  collateral  to 
another  transaction  which  can  be  enforced, 
even  when  the  main  transaction  is  void  on 
account  of  being  a  wagering  contract, 
unless  it  amounts  to  an  offence  punish- 
able by  law,  though  in  the  course  of  the 
judgment,  the  learned  Judge  agiees  with 
Venkatasubba  Rao,  J  ,  that  the  main  con- 
tract itself  is  not  void. 

^  The  respondent  argues  that,  if  the  transac- 
tion is  an  agreement  by  way  of  wager  and 
is  invalid  on  that  account,  he  is  still  entitled 
to  get  a  refund  of  the  amount  claimed  by 
him  either  under  s.  65  of  the  Indian  Contract 
Act,  or  on  the  ground  that  the  agreement  to 
return  the  amount  is  severable,  from  the 
arrangement  to  give  the  prize.  I  entirely 
agree  with  the  opinion  of  Odgeis,  J.,  m 
Nagappa  Pillai  v.  Arunachalam  Chetty  (2) 
for  the  reasons  given  by  him  in  that  judg- 
ment that  the  claim  of  the  respondent  in 
this  case  cannot  be  substantiated  on  either 
of  the  above  grounds. 

4  In  the  result  I  must  hold  that  the  deci- 
sion of  the  learned  District  Munsif  is 
wrong,  and  this  civil  revision  petition 
must  be  allowed  with  costs  as  ordered  by 
my  learned  brother. 

v.  N.  v.  Petition  allowed. 

N.  H. 


MADRAS  HIGH  COURT. 

APPEALS  AGAINST  ORDERS  Nos.  256  AND  2C9  OF 

1919. 

September  1, 1925. 
Present: — Mr,  Justice  Devadoss  and 

Mr.  Justice  Waller. 

ADDEPALLl  VE^KATA  GARUNADHA 
—PLAINTIFF— APPELLANT 

versus 

AKELLA  KESAVA  RAMIAH  AND  OTHERS 
— DEFENDANTS— RESPONDENTS. 

Transfer  of  Property  Act  (IV  of  1882),  8  6  (e)~ 
"Mere  right  to  st/e,"  what  t?—  School  Committee ,  transfer 
by,  of  school  and  assets  to  another  Committee— Debt 
duttQ  first  Committee  on  account — Suit  to  recover  by 


second  Committee,  maintainability  of — Rtyht  on  a^iyn- 
ment,  whether  mete  right  to  sue 

Where  a  certain  sum  of  money  is  due  from  a  poibon, 
that  sum  isrecoveiable  by  an.  assignee  on  assignment, 
and  if  it  is  to  be  ascertained  only  on  taking  accounts, 
it  nn&ht  be  that  the  ii&lit  to  take  the  account  may  not 
bo  assignable,  but  wheie  the  allegation  is  that  the 
defendant  is  in  possession  of  funds  belonging  to  a 
poison  or  that  the  defendant  is  accountable  for  a  defi- 
nite sum  of  money  to  a  person,  such  a  claim  is  tians- 
feiable.  In  such  a  ea^e  the  right  to  lecover  the  monev 
is  not  u  "meie  light  to  Hue'1  within  the  mischief  of 
s  0  M  of  the  Tiansfei  of  Propeitv  Aet  [p  1)76,  col  1  j 

The  Committee  of  a  school  legistcied  under  the 
Societies  Rcgistiation  Act  transferred  to  another  Com- 
mittee the  institution  and  dll  HM  piopoities  moveable 
and  immoveahle  ciud  delivered  possession  theieof 
In  a  suit  by  the  Societal y  of  the  second  Committee 
against  a  peison  for  lecoveiy  of  money  due  to  tho 
last  Committee  of  the  s(  hool  in  the  matter  of  wi  ong- 
ful  rendering  of  accounts  in  respect  of  certain  funds 
of  the  sc  hool 

Held,  (1)  that  the  right  of  the  first  Committee  to  sue 
foi  and  recover  any  amount  due  to  that  Committee  did 
pass  to  the  second  Committee  and  the  plamtift  was, 
theiefoie,  entitled  to  bring  «i  suit  and  it  was  mimate- 
nal  that  tho  specific  debt  AV as  not  mentioned  in  the 
schedule  to  the  deed  of  transfei,  [p  974,  col,  2  ] 

(2)  that  what  Avas  tiansfeired  was  not  a  meie 
light  to  sue  but  the  debt  that  was  due  by  the  defend- 
ant to  the  lirbt  Committee  and,  theiefoie',  the  transfei 
did  not  oflend  against  H  6  (e)  of  the  Transfer  of 
Propei  ty  Act  [p  970,  col  J  ] 

Prohlad  Chandia  Das  v  ftiswa  Nath  Hera  82  Ind 
Gas  411,  51  C  972,  28  C  W  N  894,  10  C  L  j  79,  A 
I  R  1924  Cal  1047  and  Pansulan  Vcnkatanvami  v 
Mentana  Ramachandra  Raju,  18  Tnd  Cas  520  38  M 
138,  24  M  L  J  208,  13  M  L  T  218,  (1913)  M  V  N 
285,  distinguished 

Gleygv  Brnmkii,  (1912)3  K   B    474,  81  L  J    K  H. 


(P  C ),  followed  '  ^ 

Appeals  against  an  order  of  the  District 
Court,  Kistna  at  Masulipatam,  m  A.  S. 
No.  12  Oof  1919,  preferred  against  a  decree 
of  the  Court  of  the  Subordinate  Judge 
Bezwada,  in  0.  S  No.  4  of  1917. 

Messrs.  T  Ramachandra  Rao  and  K. 
Krishnamachanar,  for  the  Appellant. 

Mr.  A.  Krishnaswamiyforthz  Respondents 

JUDGMENT. 
C  M  A.  No  269  OF  1919. 

The  plaintiff,  acting  Secretary  of  Sii 
Kannika  Parameswari  Viswan  Setti  Ven- 
kataratnam  Hindu  High  School  Com- 
mittee sues  for  the  recovery  of  Rs.  4,278  5-9 
from  the  defendants  who  are  the  sons 
of  one  Venkayya  Garu.  The  plaint  al- 
legation is  that  Venkayya  managed  the 
the  affairs  of  the  High  School  and  was  in 
possession  of  considerable  funds  and  that 
he  rendered  an  account  to  the  Committee  of 
the  school  and  that  on  going  through  the 
account,  it  was  found  that  the  account 


974 


ADDEPALLI  VENK^TA  OARUNADHA  V,  AKELLA  KB3AVA  RAMIAH.  [92  I.  0.  1926] 


rendered  by  him  was  incorrect  and  that  a 
sum  of  Rs.  4,000  and  odd  was  with  him  and 
that  the  defendants  who  are  his  hehs  are 
bound  to  pay  the  amount  to  the  plaintiff. 
The  defendants  raised  various  contentions 
and  the  Subordinate  Jud#e  of  Bczwada  dis- 
missed the  plaintiff's  suit  on  the  ground 
that  the  plaint/iff  had  no  cause  of  action 
against  the  defendants.  On  appeal  the 
District  Judge  of  Masulipatam  reversed  the 
decree  of  the  Subordinate  Judg^  and  re- 
manded the  suit  to  the  lower  Court  for 
taking  accounts.  Against  the  decree  of  the 
District  Judge  the  defendants  have  prefer- 
red this  appeal. 

The  point  for  determination  in  this  appeal 
is  whether  the  plaintiff  has  a  cause  of  action 
against  the  defendants.  The  Hindu  High 
School  at  Bexwada  was  managed  by  a  Com- 
mittee called  Sri  Kannika  Parameswari 
Hindu  High  School  Committee  till  Novem- 
ber 1915.  The  Committee  was  registered 
under  the  Societies  Registration  Act  of 
1860  Owing  to  lack  of  funds  or  other 
reasons,  the  Committee  transferred  the  in- 
stitution and  its  properties  to  Sri  Kannika 
Parameswari  Visvam  Chetti  Venkataratnam 
Hindu  High  School  Committee  which  was 
also  registered  under  the  Societies  Regis- 
tration Act  of  18GO.  This  transfer  is  evi- 
denced by  Ex.  F,  dated  18th  November 
1915.  The  contention  of  the  appellants  js 
that  when  the  first  Committee  transferred 
all  its  rights  to  the  second  Committee,  it 
did  not  transfer  any  outstanding  belonging 
to  the  first  Committee  and,  therefore,  the 
plaintiff  who  is  the  Secretary  of  the  second 
Committee  is  not  entitled  to  sue  the  defend- 
ants for  any  sum  of  money  that  might  be 
found  due  to  the  first  Committee.  From 
the  terms  of  F,  it  is  clear  that  the  first 
Committee  transferred  all  its  assets  and 
liabilities  in  connection  with  the  Hindu 
High  School  at  Bezwada  to  the  second  Com- 
mittee. In  para.  2  the  recital  is:—  "Whereas 
the  members  of  your  Committee  applied 
on  5th  September  1915  praying  that  the 
management  of  Sri  Kannika  Parameswari 
Hindu  High  School  at  Bezwada  and  the 
entire  properties  thereof  be  transferred  to 
your  Committee  on  condition  of  your  Com- 
mittee ^ discharging  the  debts  due  by  the 
eaid  High  School  Committee  and  in  pursu- 
ance of  the  terms  of  the  memorandum  there- 
to attached,  we  have  agieed  thereto  and 
the  members  of  our  General  Committee 
have  passed  a  resolution  No.  8  on  19th 
September  1915  to  the  effect  that  our  Gene- 


ral Committee  should  be  dissolved,  that  the 
management  of  the  school  as  well  as  tho 
properties  should  be  transferred  to  your 
Committee  subject  to  the  terms  of  the  said 
memorandum"  etc,  and  in  the  operative 
portion  of  the  deed  there  is  this  clause: — 
''Therefore  in  accordance  with  the  said  re- 
solution we  have  hereby  transferred  to  you 
the  management  of  the  school  and  deliver- 
ed possession  to  you  of  the  immoveable  pro- 
perties belonging  to  the  said  school  worth 
about  Rs.  30,000  and  specified  in  schedules 
of  moveable  and  immoveable  properties.11 

The  appellant  wants  to  rely  upon  the 
fact  that  in  the  schedule  of  assets  this  debt 
due  from  Venkayya  is  not  mentioned;  but 
from  the  tenor  of  the  document  and  from 
the  recitals  therein  it  is  quite  clear  that  the 
entire  properties  of  the  school  were  trans- 
ferred to  the  second  Committee.  As  the 
learned  Judge  remarks  though  there  is  no 
list  of  debts  in  the  schedule  to  Ex.  F,  the 
debts  of  the  old  Committee  incurred  in  con- 
nection with  the  school  were  discharged  by 
the  second  Committee.  One  of  the  recital 
is. — 

"With  this  sum  and  with  the  sums  which 
might  be  received  hereafter  the  debts  of  the 
school  should  be  discharged/' 

The  second  Committee  did  undertake  to 
discharge  the  debts  of  the  first  Committee, 
and  though  no  list  of  debts  was  attached  to 
Ex.  F,  the  second  Committee  was  bound  to 
pay  all  the  debts  of  the  first  Committee. 
It  is  not  necessary  that  when  one  Committee 
transfers  all  its  assets  to  another  Committee 
there  should  be  a  list  in  order  to  pass  the 
title  of  the  first  Committee  to  the  second 
Committee  with  regard  to  the  outstandings. 
In  this  case  the  second  Committee  took  over 
all  that  the  first  Committee  possessed  on 
behalf  of  the  Hindu  High  School3  Bezwada. 
The  right  of  the  first  Committee  to  sue  for 
and  recover  any  amount  due  to  that  Com- 
mittee did  pass  to  the  second  Committee 
and  the  plaintiff  is,  therefore,  entitled  to 
bring  a  suit. 

The  next  contention  of  the  appellants  is 
that  the  First  Committee  had  only  a  right  to 
sue  Venkayya  and  a  mere  right  to  sue  can- 
not be  transferred  by  reasons  of  the  provi- 
sions of  s.  6  (e)  of  the  Transfer  of  Property 
Act.  The  mere  right  to  sue  cannot  be 
transferred.  Here  what  was  transferred 
was  not  a  mere  right  to  sue  but  the  debt 
that  was  due  by  Venkayya  to  the  first  Com- 
mittee and,  therefore,  the  transfer  does  no* 
offend  against  the  provisions  of  s,  6  (e)  ot 


(92  I.  0.  1926]  ADDBPALLI  VENKATA  OARUNADHA  t>.  AKELLA  KBSAVA  RAMIAH. 


975 


the  Transfer  of  Property  Act.    The  plaint 
as  laid  contains  an  averment  that  Venkayya 
was  indebted  to  the  first  Committee  in  the 
sum  of  Rs.   3,145  13-8     Venkayya    was  in 
possession  of    the  funds  belonging   to  the 
Hindu  High  School.  Ho  i en dere dan  account 
which  was  afterwards  found  to  be  false  and 
according  to  the  plaintiff's  case    Venkayya 
was  in  possession  of  the  funds  of  the  Com- 
mittee and,  therefore,  he  was  bound  to  pay 
that  amount   to  that    Committee,    and  the 
second  Committee  having    taken  over   the 
management  with  the  rights  and  liabilities 
of  the  first  Committee  is  entitled  to  sue  for 
and  recover  the  amount   due   to  the  first 
Committee.    The  cases  relied  upon  by  the 
appellant  Prohlad  Chandra  Das    v    Biswa 
Nath  Bern  (1)  and  Pansulari  Venkatasawmi 
v.  Mentana  Kamachandra  Raju  (2)  have  no 
application  to  the  present  case,    In  Prohlad 
Chandra  Das  v.  Biswa  Nath  Bera  (P  it  was 
held  that  a  right  to  take  accounts  and  to  re- 
cover such  sums  as  may  be  found  due  is  not 
assignable  being  a  mere  right  to  sue  within 
the  meaning  of  s.  6,  cl.  (e)  of  the  Transfer 
of  Property  Act.    On  the  construction  of 
the  document  and  from  the  way  in  which 
the  suit   was  framed  it  was  found  that  the 
plaintiff  was  not  entitled  to  maintain  a  suit 
as  he  had  purchased  a  mere  right  to  sue 
for  account.    In  Pansulari   Venkatasawmi 
v.  Mentana  Ramachandra  Raju  (2),  it  was 
held  that  a  mere  right  to  recover  damages 
for  the  negligence  of  an  agent  in  failing  to 
collect    rents  cannot  be  transferred.     The 
mere    right    to  sue  for    damages  is    not 
assignable.  In  the  Pansulari  Venlcatasivami 
v.   Mentana  Ramachandra    Raju    (2)    the 
cause  of  action  was  the  negligence  of  the 
agent.    If  it  was  shown  that  the  agent  did 
collect  a  certain  sum  of  money  on  behalf 
of  the  principal,  the  agent  was  accountable 
for  the  amount  actually  received  by  him ; 
and  for  what  he  had  with  him,  he  was  in 
the  position  of  a  debtor  for   he  had  the 
money  of  the  principal  in  his  hands.    The 
assignment  of  the  amount  in  the  hands  of 
the  agent  would  not  offend  against  s.  6  (e) 
of  the  Transfer  of  Property  Act  [vide  Madho 
Das  v.  Ramji  Patak  (3)].    In  Prosser  v.  Ed- 


(1)  82  Ind,  Cas.  411;  51  0,  972;  28  C.  W  N,  894,  40 
C.  L.  J.  79;  A.  I.  R.  1924  Cal   1017 

(2)  18Ind.  Cas  520,  38  M.  138,  24  M  L  J.  298,  13 
M.  L,  T.  218;  (1913)  M  W,  N  283, 

(3)  10  A,  286;  A,  W,  N,  (1894)  84;  8  lad,  Dec,  (N,  s.) 
186, 


monds(i)  the  Lord  Chief  Baron  held  that 
a  inked  right  to  sue  was  not  assignable. 
la  Hill  v.  tioyle  (5)  it  \\a$  held  that  a  mere 
right  to  sue  a  trustee  for  interest  and  pro- 
fits of  n  trust  fund  in.  his  hands  was  not 
tiansferablc 

The  obser  vat  ions  of  Paiker,  J  ,  in  Glegg  v, 
Bromley  (6),  are  applicable  to  the  present 
case.  At  page  490*,  the  learned  Judge 
observes:  "it  ij  to  be  observed  that  an 
equitable  assignee  of  a  chose  in  action, 
whether  it  is  legal  or  equitable,  could  in- 
stitute proceedings  and  maintain  proceed- 
ings for  its  recovery.  The  question  was 
whether  the  subject-matter  of  the  assign- 
ment was,  in  the  view  of  the  Court,  property 
with  an  incidental  remedy  for  its  recovery, 
or  was  a  bare  right  to  bring  an  action 
either  at  law  or  in  equity  With  regard  to 
the  assignments  of  future  property,  they 
stand,  I  think,  on  a  totally  different  footing. 
Nothing  passes,  even  in  equity,  until  the 
property  comes  into  piesent  existence. 
Only  when  this  happens  can  the  assignment 
attach  and  an  interest  paps." 

This  observation  is  quoted  with  approval 
by  their  Lordships  of  the  Privy  Council  in 
Subhadrayamma  v.  Venkatapati  (7).  In  that 
case  the  plaintiff's  husband  advanced  cer- 
tain sums  of  money  for  litigation  to  the 
defendant  in  the  express  agi  cement  that 
the  money  borrowed  from  the  plaintiff 
should  have  a  charge  upon  the  moveable 
and  immoveable  properties  obtained  by 
means  of  litigation.  Owing  to  disputes 
between  the  plaintiff  and  the  defendant, 
the  plaintiff  refused  to  advance  any  further 
monies.  After  a  time  the  suit  was  compro- 
mised and  the  lender's  widow  claimed  that 
the  advance  and  the  interest  theieonweie 
a  charge  on  the  money  paid  under  the  com- 
promise. The  Privy  Council  held  that  the 
plaintiff  was  entitled  to  a  charge  on  the 
amount  obtained  on  compromise  in  the 
suit.  Their  Lordships  held  that  the  agree- 
ment was  an  assignment  of  part  of  the 
fruits  of  the  litigation,  and  even  if  they 
weie  to  be  regarded  as  non  existing  pro- 
perty at  the  date  of  the  agreement,  the 

(4)  (1833)  160  E.  R,  190;    1  Y  &  0.   481;   41  R,  R, 
322 

(5)  0867)4Eq.?60. 

(6)  (1912)  3  K.  13.  474,  81  L,  J  K.  B,  1081;  106  L  T. 
8<>5 

"(7)  POInd  Cos  807;  18  M  230,  A.  I.  R.  1924  (P4  0.) 
162,  47  M  L  J  93;  2G  Bom,  L  R.  786,  20  L  W. 
21)8;  (1924)  M.  W.  N.  607;  29  C,  W.  N  57,  L.  K.  5  A, 

(P  CJ347(P  0).         

3  K,  B.— 


976  SEETHAKAMA  NAlDtf  1?.  GoVlNDASAMI  OHBTT1AB. 

agreement  attached  upon  the  money  being 
paid.  The  principle  is  that  if  a  certain 
sum  of  money  is  due  from  any  person  that 
sum  is  recoverable  on  assignment ;  and  if 
it  is  to  be  ascertained  only  on  taking 
accounts  it  might  be  that  the  right  to  take 
the  account  is  not  assignable :  but  where 
the  allegation  is  that  the  defendant  is  in 
possession  of  funds  belonging  to  a  person 
or  that  the  defendant  is  accountable  for  a 
definite  sum  of  money  to  a  person  such  a 
claim  is  transferable.  In  such  a  case,  the 
right  to  recover  the  money  is  not  a  mere 
right  to  sue  and  the  transfer  of  such  a 
right  does  not  offend  against  s.  6  (e)  of  the 
Transfer  of  Property  Act.  In  the  result  the 
appeal  is  dismissed  with  costs, 

C.  M.  A.  No  256  OF  1919. 

In  view  of  our  judgment  in  G.  M,  A. 
No.  269  of  1919  the  appellant  does  not 
pi  ess  this  appeal;  it  is  dismissed  with  costs. 

v.  N.  v. 

N.  u.  Appeals  dismissed. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  506  OF  1923. 

September  15,  1925. 

Present :— Mr.  Justice  Viswanatha  Sastri. 

SEETHARAMA  NAIDU— RESPONDENT 

No,  1— PLAINTIFF — APPELLANT 

versus 

GOVINDA8AMI  GHETTIAR  AND 

ANOTHER — RESPONDENT  No.  2— DEFENDANT — 

RESPONDENT*. 

Undras  Estates  Land  Act  (I  of  1008),  ss  1U,  189- - 
Ryotwari  holding — Kent  sale— Suit  by  real  owner,  main- 
tainability of. 

The  real  owner  of  a  ryotwari  holding  can  sue  in  a 
Civil  Court  lor  a  declaration  that  certain  lands  belong 
to  him  and  that  a  Bale  thereof  hold  under  the  provi- 
mons  of  the  Madras  Estates  Land  Act  is  fraud ulcnt, 
invalid  and  not  binding  on  him  Such  a  suit  ja  not 
barred  by  the  provisions  of  s.  189  of  the  Madras  Estates 
Land  Act 

.Raw  of  Ramnad  v  Venkatarama  Iyer,  69  Ind.  Cas 
923,  45  M.  690, 16  L  W  274,  (1922)  M.  W  N.  501,  31 
M  L  T.  158,  43  M,  L,  J,  261,  A.  I.  R.  1923  Mad.  6 
(F  B '),  relied  on, 

Irulappan  tiervai  v  Veerappan,  69  Lid  CHS  918,42 
M.  L  J.  113,  15  L  W.  09,  (1922;  M.  W.  K  67;  31  M  L, 
T.  71,  not  followed. 

Second  appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Tan j ore, 
in  A.  S.  No..43.of  1922  (A.  S.  No.  356  of 
1921,  District  Court  of  Tanjore),  preferred 
against  that  of  the  Court  of  the  District 
Munsit-  Eattwfcottah,  in  0.  S,  No.  567  of 
1919. 


[92  L  0. 1926] 

Mr.  S.  Muthiah  Mudaliar,  for  the  Appel- 
lant. 

Mr.  A.  Kuppusivamy  Iyer,  for  the  Re- 
spondents. 

JUDGMENT.— The    question  in  this 
second  appeal  is  whether  the  real  owner 
of  a  ryotwari  holding  can   sue  in  a   Civil 
Court  for  a  declaration  that  certain  lands 
belong  to  him  and   that  a  sale  under  the 
provisions  of  the  Estates  Land  Act   was 
"fraudulent,  illegal,  invalid  and  not  bind- 
ing, on  him  ".    Plaintiff  who  is  the   appel- 
lant in  second  appeal  alleging  that  he  was 
the  real  owner  of  the  lands,    and  that  the  < 
registered  holder  Kangaswami  Naidu  was 
only    a  benamidar  sued    to  have  a    rent 
sale  held  at  the  instance  of  the  first  defend- 
ant, at  which  the  second  defendant  became 
the  purchaser,  set  aside  on  various  grounds. 
The  District  Munsif  found  as  a  fact   (1) 
that  the  notice  Ex,  X  did  not  specify*  the 
holding  in  respect  of  which  the  arrear  was 
due ;  and  (2)  that  a  large  number  of  fields 
and  a  larger  extent  than    necessary  were 
sold  in  contravention  cf  the  provisions  of 
s.   12(5  of  the  Estates  Land  Act.    On  these 
findings  he  held  that  the  sale  was  invalid 
aud  gave    the  declaration  asked  for.    The 
second  defendant  appealed  and  the  Appel- 
late   Court    allowed    the    appeal    on  two 
grounds :— (1)  plaintiff,  not  being  the  ryot 
who  was  liable  to  pay  rent  on  the  holding, 
could  not  maintain  the  suit,  and  (2)    no 
suit  as  contemplated    by    s.     112    of  the 
Estates    Land  Act  having  been    filed,  the 
validity  of  the  sale  cannot  be  disputed. 

Both  the  Courts  have  found  that 
plaintiff  had  failed  to  get  his  name  regis- 
tered as  a  pattadar,  and  this  finding  has 
to  be  accepted.  But  the  question  is  whe- 
ther the  circumstance  prevents  him  from 
impeaching  the  sale  in  a  Civil  Court.  That 
such  a  suit  will  lie  in  a  Civil  Court  at  the 
instance  of  a  ryot  (pattadar)  has  been  held 
by  a  Full  Bench  of  this  Court  in  Raja  of 
Ramnad  v.  Venkatarama  Iyer  (1)  No  case 
hag  been  referred  to  in  which  it  has  been 
held  that  such  a  suit  will  not  lie  at  the 
instance  of  a  person  who  claims  to  be  the 
real  owner  of  a  ryotwari  holding.  I  am  of 
opinion  that  such  a  suit  is  equally  open 
to  him. 

The     contention     that    s,    189    of     the 

Estates  Land  Act  barred  the  suit,  is  sought 

to  be  supported  by  the  ruling  in  Irulappan 

(1)  69  Ind.  Cas  923,  45  M.  890;  16  L.  W.  274;  (1922) 

'1'1 158;43M>L<  J<261i  A'IK< 


1.  0. 1926] 


ATOHUTAM  V.  RATNAJL 


977 


Servai  v,  Veerappan  (2).  In  that  case  it  is 
stated  at  page  115*  that  "to  allow  a  person 
who  has  not  taken  action  tinder  s.  146,  to 
ignore  a  rent  sale  at  the  time  it  is  held 
and  subsequently  to  dispute  its  validity  in 
a  civil  suit  would  run  counter  to  both 
these  principles.  Section  189  does  not  seem 
to  me  to  allow  of  such  a  construction."  If 
a  ryot  who  has  not  instituted  proceedings 
under  s,  112,  can  come  in  with  a  suit  in  a 
Civil  Court,  as  has  been  held  in  the  Full 
Bench  case  above  referred  to,  it  is  difficult 
to  see  why  a  person  in  the  position  of 
plaintiff  cannot  be  allowed  to  do  so.  The 
case  in  Indappan  Serial  v.  Veerappan  (2) 
does  not  appear  to  have  been  brought  to 
the  ^  notice  of  the  learned  Judges  \\lio 
decided^  the  Full  Bench  case  ;  but  never- 
theless it  appears  to  me  that  the  ground  on 
which  the  decision  proceeded  is  no  longer 
tenable,  having  regard  to  the  Full  Bench 
ruling. 

I  would,  therefore,  allow  the  second 
appeal  and  remand  the  case  to  the  lower 
Appellate  Court  for  decision  upon  the 
other  issues  raised  in  the  case.  Appellant 
will  get  a  refund  of  the  Court-fee  paid  on 
the  memorandum  of  appeal.  Appellant  will 
have  the  costs  of  the  second  appeal  and 
the  other  costs  will  abide  and  follow  the 
result. 


v-  N.  v. 

N.  H. 


Case  remanded. 


(2)  09  Ind.    Cns  918;  42  M.  L  J,  113,  15    L   W.  99, 

ii^i^L^L^GLHJLk_?iy  _ 

ol  42  M,~L  J  -~[ttd  J  ~ 


MADRAS  HIGH  COURT. 

CIVIL  APPEALS  Nos.  436  OF  1922  AND  362 

OF  1923, 

October  22,  1925. 

Present:— Sir  Victor  Muri ay  Coutts 
Trotter,  KT,,  Chief  Justice,  and 
Mr.  Justice  Viswanatha  Sastri. 

APPEAL  No.  43(5  OF  1922. 

NIDAVOLU  ATOHUTAM  alias 

ACHUTARAMAYYAAND  OTHERS— 

DEFENDANTS  Nos.  3  TO  5 — APPELLANTS 

versus 

RATNAJI  CARRYING  ON  BUSINESS  UNDER 

TBE  NAME  AND  STYLE  OF  RATNAJ  EE 
BHOOTAJI  AND    OTHERS — PLAINTIFF  AND 

DEFENDANTS  Nos.  1  AND  2 — RESPONDENTS. 

Hindu  Law — Debts — Commercial  debts  of  father — 
Pious  obligation  of  son — Text  of  Gautama,  whether 
obsolete. 

A  debt  incurred  by  a  father  in  tho  course  of  a 
hardware  trade  carried  on  by  him,  is  a  commercial 

62 


debt   and   under  the  Hindu  Law  the   son  ife  under  n 
pious  obligation  to  discharge  the  same,   [p  978,  col  1  ] 

Per  Co  nth  Trotter,  C  J— The  text  of  Gautama 
which  dfMTiboa  a  commercial  debt  as  vyavaharika 
must  luw  bo  hold  to  have  been  declared  as  obsolete 
[ibid  J 

The  paiticular  instances  of  vyavaharika  debts 
given  in  the  Smnties  must  bs  treated  as  a  meie 
expression  of  opinion  on  the  part  of  the  authors  as  to 
what  classes  of  debts  would  fall  under  the  general 
woids  A  modern  Court  is,  therefore,  free  in  inter- 
pieUngth*  general  tenn  "vyavaharika"  to  consider 
the  particular  instances  given  as  obsolete  under  the 
conditions  of  the  present  day  [ibid  ] 

Appeal  against  the  decrees  of  the  Court 
oi  the  Additional  Subordinate  Judge, 
Rajahmundry,  in  O.  8.  No.  25  of  1920  (O 
S  No.  16  of  1919  of  the  District  Court, 
Godavari)  and  O.  8.  No.  24  of  1920  (A.  8 
No.  8  of  1923  of  the  District  Court,  Goda- 
vari). 

Mr.  A.  Satyanarayana,  for  the  Appel- 
lants. 

Messrs.  G.  Lakshmanna  and  7.  Viyyannat 
for  the  Respondents. 

JUDGMENT. 

Coutts  Trotter,  C,  J.— In  this  case 
the  father  of  the  appellants  embarked  on 
the  hardware  trade  in  1914  and  was  sued 
with  them  in  respect  of  debts  contracted 
by  him  in  the  conduct  of  that  venture.  The 
appellants1  Vakil  relied  on  a  text  of 
Gautama  XII,  41  which  runs  as  follows  .— 

44  Money  due  by  a  surety  for  a  commercial 
debf,  a  fee  due  to  the  parents  of  a  bride, 
debts  contracted  for  spirituous  liquor  or  in 
gambling  and  a  fine  shall  not  involve  the 
sons  of  the  debtor"  and  the  bold  contention 
is  put  forward  that  thepious  obligation  does 
not  extend,  therefore,  to  commercial  debts. 
I  have  discussed  this  subject  at  length  in 
para.  303  of  the  9th  Edition  ofMayne  on 
Hindu  Law  and  I  have  very  little  to  add 
to  what  I  said  there.  This  Court  has  held 
in  Thangathamma  v.  Arunachalam  C/tet- 
tiar  (1)  that  sons  are  liable  in  a  case  of  a 
surety  bond  executed  by  the  father  for  pay- 
ment as  distinct  from  obligations  as  a  sure- 
ty for  appearance  and  for  honesty  and 
there  are  other  decisions  of  the  Calcutta 
and  Patxia  Couits  to  the  same  effect.  This 
appears  to  me  to  be  based  upon  the  view 
that  the  governing  provision  in  the  texts  is 
that  which  excludes  from  the  rule  debts 
that  are  not  vyavaharika,  an  expression 
taken  from  Usanas  (apud  Mkakshara  II, 
48)  and  Vyasa  (apud  Jagannatha  I,  V,  203), 

(l)T48Ind.  Cue,  76j  41  M,  1071;  35  M,  L,  229j  (1918) 
M.  W,  N.  673* 


978 


NlDAVOLtf  ATOHtTAM  V.  EATN4 31. 


[92 1. 0, 19£6J 


From  1874  onwards  the  decisions  of   the 
Privy  Council  have  adopted  this  view  and 
have  crystallised  the  translation  as  "illegal 
or  immoral11.    It  appears  in  Girdharee  Lall 
v.  Kantoo  Lall  (2)  and  has  been  repeated  in 
many  subsequent  cases,    If  this  be  correct, 
it  will  follow  as  1  have   said  that  the  par- 
ticular instances  given  in  the  Smirities  must 
be  treated  asamere  expression  of  opinion  on 
the  part  of  the  authors  as  to  what  classes  of 
debts  would  fall  under  the  general  words. 
A  modern  Court  would,  therefore,  be   free 
in  interpreting  the  general  term  to    con- 
sider  the   particular    instances   given    as 
obsolete  under  the  conditions  of  to-day.    I 
am  clearly    of    opinion  that    commercial 
debts   fall  into  this  category  and  that  we 
ought  to  say  that  the  pious  obligation  ex- 
tends to  them.  "  It  may  well  be  that  in  the 
time  of  Gautama,  it  was  thought    that  to 
engage  in  trade  was  degrading,  at  any  rate 
in   the  case  of  the  higher  castes.    No   one 
could  pretend  that  that  view  would  be  en- 
tertained to-day.    For  these  reasons  I  am 
of  opinion  that  the  sons  are  liable  in  this 
case  and  that  the  appeals  must  be  dismiss- 
ed with  costs. 

Of  course  the  whole  doctrine  of  the  pious 
obligation  is  itself  a  relic  of  antiquity  based 
originally  on  a  religious  and  not  a  legal  con- 
ception but  it  has  been  controlled  and 
moulded  into  shape  by  a  series  of  decisions 
which,  in  my  opinion,  make  it  a  working 
rule  which  in  its  actual  application  is 
neither  inconvenient  nor  unjust. 
A.  8.  No.  436  OF  192?. 
Viswanatha  Sastri,  J,— Appeal 
by  defendants  Nos.  3  to  5  against  the 
decree  of  the  Court  of  the  Additional  Sub- 
ordinate Judge,  Rajamundry,  in  O.  8, 
No.  25  of  1920. 

Appellants  are  the  sons  of  the  first  defend- 
ant, and  the  second  defendant  is  their 
maternal  uncle.  The  suit  was  laid  for  the 
recovery  of  a  sum  of  money  (Rs.  6,898-11-6) 
due  in  respect  of  money  dealings  between 
defendants  Nos.  1  and  2  and  plaintiff.  De- 
fendants Nos.  1  and  2  are  said  to  have  carried 
in  partnership  a  trade  in  hardware,  for 


on 

the  purpose  of  which  trade  money  was 
being  borrowed  from  time  to  time  from 
plaintiff.  It  was  also  alleged  that  the  first 
defendant  and  defendants  Nos.  3  to  5  were 
undivided,  and  that  the  trade  was  being 
carried  on  by  the  first  defendant  for  the 
benefit  of  the  family.  Defendants  Nos.  3  to 
(2)  1 1  A.  321;  22  W,  B.  5$;  14  B,  L,  »,  187;  3  Sar,  P, 


5  contended  that  as  they  have  become 
divided  fiom  their  father  (1st  defendant) 
they  had  nothing  to  do  with  the  trade;  that 
the  trade  was  never  an  ancestral  trade  nor 
a  joint  family  trade;  and  that  they  were 
not  liable.  They  also  contended  that  the 
settlements  of  account  alleged  in  the  plaint, 
between  plaintiff  and  defendants  Nos.  1 
and  2,  were  false.  The  Subordinate  Judge 
held  that  the  settlements  of  account  were 
true,  that  the  partition  set  up  was  brought 
about  to  defraud  creditors  ;  and  he  passed 
a  decree  against  defendants  Nos.  1  and  2, 
and  against  the  joint  family  properties  in 
the  hands  of  defendants  Nos.  3  to  5. 

The  contentions  urged  in  appeal  are  : — 
(1)  that  the  trade  not  being  an  ancestral 
trade,  and  the  first  defendant  having  start- 
ed it  only  in  1914,  appellants  could  not  be 
held  liable  for  sums  said  to  have  been  bor- 
rowed for  the  purposes  of  the  trade;  (2)  that 
as  Rs.  1,926-6-3  and  Rs.  695-3-0  were  due 
from  third  persons,  and  as  the  partnership 
took  them  over,  they  (defendants  Nos.  3  to 
5)  were  in  any  event  not  liable  for  the  sums. 
The  contention  that  defendants  Nos.  3  to 
5  had  separated  themselves  from  their 
father  was  not  pressed  before  us. 

Taking  the  second  contention  first,  the 
allegation  in  para.    6  of  the  plaint  is  that 
on    Januaiy  5,    1918  defendants    Ncs.    1 
and  2  "  made  themselves  liable  in  the  sum  of 
Rs.  1,926-6-3  for  the  share  of  E.  Venkata- 
subbarayudu  in  the  katha  debt  due  by  him 
and  another  K.  Venkatanarayana  Row :  and 
the  pronote  debt  of  the  said  E.    Venkata- 
subbarayudu  in  the  sum  of  Rs.  695-3  0'\ 
In  the  case  of  a  suretyship  for  payment, 
it  iray  te  taken  es    ^ell   settled    that    a 
Hindu   son  is    liable :    See    Sitaramayya 
v.    Venkataramanna    (3),    Thangathamma 
v.  Arunachallam  Chettiar(l\  Tukarambhat 
v.    Gangasam    Mulchand    Gujar    (4)    and 
Rasik  LalMandal  v.  Singhasu-a  Roy  (5),  The 
decision  in  Narayan  v.  Venkatacharya    (6) 
relates  to  the  liability  of  a  guardian  and 
has  no  application  to   the   case  before  us. 
The  test  of  Gautama  (s.  41)  was  referred  to 
by  the  Vakil  for  the  appellants,  but  it  ap- 
pears to  nje  that  Gautama   simply  repeats 
Manu  (s.  159)  and  that  he  refers  only  to  a 
suretyship  for  appearance.    In  the  case  of 
a   suretyship   for   payment,  the   tejtt    of 

(3)  11  M.  373;  4  Ind,  Dec.  (N,  s)  260. 

(4)  23  B.  454;  12  Ind,  Dec.  (N.  B.)  SOI. 

(5;  14  Ind  Cas.  H7;  S9  0.  843;  10  0,  I*  J,  107j  1( 
0.  W,  N.  1103, 


NIDAVOLU  ATOHUf AM  t>,  fcA? KAJI. 


£92  L  0, 1926] 

Yajnavalkya  recognises  the  liability  of  a  son. 
This  contention,  therefore,  cannot  prevail. 

Coming  to  the  first  contention  it  was 
urged  that  the  father  was  not  continuing 
any  ancestral  trade  but  was  starting  a  new 
trade,  and  that  for  debts  contracted  for  a 
new  trade,  the  sons  were  not  liable.  That 
under  ancient  texts  a  son  was  under  a  legal 
obligation  to  pay  his  father's  debts  was  the 
opinion  held  by  that  eminent  Judge(Muthu- 
sami  Iyer,  J )  in  Ponnappa  Pillai  v.  Pappu- 
vayyanga  (7).  According  to  Yajnavalkya  if 
a  father  be  long  absent  in  a  distant  country 
or  be  dead  the  debt  must  be  re-paid  by  the 
son.  It  is  equally  well  settled  that  the  son 
was  not  under  any  such  liability  in  the  case 
of  debts  contracted  for  illegal  or  immoral 
purposes.  According  to  Yajnavalkya  a  son 
was  not  bound  to  pay  a  debt,  even  though 
hereditary  if  it  was  contracted  for  the  pur- 
pose of  drinking,  debauchery  or  gambling. 
According  to  Gautama  a  son  was  not  bound 
to  discharge  a  debt  incurred  by  his  de- 
ceased father  if  due  by  him  to  a  wine  shop 
or  a  gambling  saloon.  "By  the  Hindu  Law, 
the  freedom  of  the  son  from  the  obligation 
to  discharge  the  father's  debt  has  respect 
to  the  nature  of  the  debt".  See  Hunooman- 
persaud  Panday  v.  Bobooee  Munra] 
Koonweree.  (8).  In  Suraj  BunsiKoerv  Slieo 
Persad  Singh  (9)  their  Lordships  of  the 
Privy  Council  refer  in  the  appeal  the  follow- 
ing dictum  of  Westropp,  C.  J.,  in  the  case  of 
Udaram  Sitaram  v.  Ranu  Panduji  (10)  "sub- 
ject to  certain  limited  exceptions  (as  for 
instance,  debts  contracted  for  immoral  or 
illegal  purposes)  the  whole  of  the  family  un- 
divided estate  would  be,  when  in  the  bauds 
of  the  sons  or  grandsons,  liable  to  the  debts 
of  the  father  or  grandfather1'. 

In  the  case  before  us  the  trade  the  father 
carried  on  was  a  trade  in  hardware,  and 
there  was  nothing  illegal  or  immoral  about 
it.  There  is  not  even  any  suggestion  to  this 
effect  in  the  written  statementjand  all  that 
is  alleged  is  that  the  business  was  neither 
an  ancestral  nor  family  business,  that  the  sons 
had  become  divided  from  their  father;  and 
that  the  business  was  carried  on  by  the 
father  for  his  sole  benefit.  The  finding  is  that 
the  business  was  carried  on  for  the  benefit 

'  (7)  4  M.  1  at  p,  18;  1  Ind  Dec    (M  s )  839 

(S)  6M  I.  A  393  at  p.  421;  18  W  R.  bin,  Sevestre 
253u;  2  Suth.  P.  C.  J.  29;  1  Sai.  P.  0.  J.  552,  19  E.  K. 

U(9)  5  0.  148  at  p.  169,  OLA  88;  4  Sar.  P.  C.  J.  1,  3 
Bath.  P.  0.  J,  589,  4  0.  L.  R.  226, 2  Shome  U  R.  242; 
2  Ind.  Dec.  (N.  s)705  (P.O.). 
11  B.H,  0,K,  70atp,83, 


979 


of  the  family  and  that  the  partition  was 
fraudulent.  In  Ramkrishna  Trimbak  v. 
Narayon  Shivorao  Aras  ( 11)  itwas  held  that 
a  son  cannot  escape  liability  for  payment 
of  the  debts  of  his  father  contracted  ID  fish 
trade.  The  decision  in  Official  Assignee 
of  Madras  v.  Palaniappa  Chetty  (12)  is  no 
authority  for  the  proposition  that  where  a 
Hindu  father  starts  for  the  first  time  a  new 
trade,  and  for  the  purpose  of  the  trade  con- 
tracts debts,  his  sons  cannot  be  held  liable  for 
the  debts  so  contracted.  In  that  case  the 
question  arose  in  bankruptcy  proceedings 
whether  a  Hindu  son  can  be  adjudicated 
insolvent  in  respect  of  debts  incurred  in  a 
business  newly  started  by  his  father  during 
his  minority,  and  in  which  he  actively  pari- 
cipated  after  attaining  majority,  and  there 
was  no  question  as  to  the  liabilty  of  joint 
family  properties,  for  such  debts. 

I  would,  theiefore,  dismiss  the  appeal  with 
costs. 

IN  A  8.  No.  362  OP  1923. 

Appeal  by  defendants,  Nos  2  to  4  against 
the  decree  of  the  Court  of  the  Additional 
Subordinate  Judge  of  Rajahmundry,  in 
0.8.  No  24  of  1923. 

Appellants  are  the  sons  of  the  first  defend- 
ant and  the  suit  was  laid  for  the  recovery 
of  a  sum  of  money  (Rs.  3,050)  due  in  respect 
of  money  dealings  carried  on  between 
plaintiff  and  first  defendant.  It  waa  alleged 
that  the  dealings  were  for  the  purpose  of 
financing  a  trade  in  hardware  which  first 
defendant  waa  carrying  on  for  the  benefit 
of  the  undivided  family  consisting  of  him- 
self and  his  sons.  Appellants  contended 
that  they  had  become  divided  from  their 
father,  that  the  trade  was  not  an  ancestral 
trade  and  that  it  was  never  carried  on  for 
their  benefit  The  Subordinate  Judge  held 
that  the  dealings  were  proved  that  the  part- 
tition  was  brought  about  to  defraud  credit- 
ors; and  that  the  joint  family  properties 
weie  liable. 

The  contention  urged  in  appeal  is  that 
the  trade  not  being  an  ancestral  trade 
and  the  first  defendant  having  started  it 
only  in  1914,  appellants  could  not  be  held 
liable  for  sums  said  to  have  been  borrowed 
for  purposes  of  the  trade.  The  contention 
that  they  had  separated  from  their  father 
was  not  pressed  before  us, 

This  appeal  was  heard  with  Appeal  436  of 
1922,  and  for  reasons  given  in  my  judgment^ 

(11)  31  Ind.  Gas.  301,  40 13.  126,  17  Boin  L  R  955. 

(12)  49  Ind.  Cas  220;  41  M.  824;  24  M.  L.  T.  216;  35 
M,  L,  J,  *73;  8  L,  W,  530;  (1913)  M,  W,  W,  721, 


in  that  appeal,  I  would  dismiss  the  appeal 
with  costs. 

v.  N.  v.  Appeals  dismissed. 

N.  H. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1089  OF  1925. 

January  4, 1926. 

Present :— Mr.  Justice  Martineau. 
NARAIN  DAS— -DEFENDANT— APPELLANT 

versus 

SARAJ  DIN— PLAINTIFF  AND  WADHAWA 
SINGH  AND  OTHERS— DEFENDANTS- 
RESPONDENTS. 

Limitation  Act  (IX  of  1008),  Sch.  I,  Art  m~ 
Suit  against  co-mortgagor  redeeming  cntne  pro- 
perty—Denial of  right  to  possession  unless  chaig 
paid— Adverse  possession—  Limitation— Pun]ab  Laud 
Rtvenue  Act  (XVII  of  1887),  8  117— Suit  for  posses- 
sion—Jurisdiction of  Revenue  Courts. 

A  suit  by  a  co-mortgagor  against  another  co-mort- 
gagor who  has  icdeemed  the  entue  property  IB 
governed  by  Art.  144  of  Sch.  I  to  the  Limitation  Act 
and  where  the  latter  denies  the  right  of  the  foimei 
to  enter  into  joint  possession  until  he  has  paid  his 
share  of  the  charge  which  the  latter  has  defrayed,  the 
possession  of  the  latter  is  adverse  and  if  it  has  con- 
tinued for  12  years  the  suit  is  barred  by  limitation 

Vasudev  v.  Balaji,  26  B.  500;  4  Bom  L  R  178  and 
Basanta  v.  Dhanna  Singh,  55  Ind.  Cas.  450,  referied  to. 

-Ram  Narayan  Rai  v  Ram  Dem  Rait  03  Ind  Cas. 
282;  A.  I.  R.  1923  Pat.  98;  6  P.  L.  J.  680,  (1922)  Pat. 
129,  not  followed. 

Wazir  v.Girdhari,  71  Ind.  Cas.  847;  A  I.  B.  1923 
Lah.  311,  followed, 

A  Revenue  Officer  acting  as  a  Court  may  determine 
the  question  of  title  arising  in  the  partition  proceed- 
ings but  has  no  power  to  pass  a  decree  for  possession 
of  the  land  of  which  the  title  is  in  dispute. 

Lachhrm  Bai  v.  Hondi  Bai,  2i  lud  Cas  719-  100  P 
R.  1913;  7  P.  L.  R.  1914,  14  P.  W.  R.  1914,  referred 
to. 

Second  appeal  from  a  decree  of  the 
Additional  District  Judge,  Lahore,  dated 
the  26th  January  1925,  affirming  that  of 
the  Assistant  Collector,  Kasur,  District 
Lahore,  dated  the  24th  March  1924. 

Mr.  Shamair  Chand,  for  the  -Appellant. 

Lala  GangaRam,  for  the  Respondents. 

JUDGMENT*— The  land  in  suit  be- 
longed to  Gurdit  Singh,  who  mortgaged  it 
to  Nihal  Singh.  After  Gurdit  Singh's 
death  one  of  his  four  sons,  Baghel  Singh, 
eold  his  one-fourth  share  to  Musa,  and  the 
remaining  three  sold  three-fourths  to  Narain 
Das  defendant  No.  1.  The  latter  redeemed 
the  whole  land  from  the  mortgagee  in  1900. 
In  1923  Musa's  son  8iraj-ud-din  applied 
jfor  partition  of  his  share,  His  title  being 


,  SABAJ  MN,  [92  L  (J*  1926;} 

disputed  by  Narain  Das  he  was  referred  by 
the  Assistant  Collector  to  a  suit,  and  he 
then  brought  the  present  suit  in  the  Assist- 
ant Collector's  Court,  asking  for  joint 
possession.  He  was  given  a  decree  subject 
to  the  payment  of  one-fourth  of  the  amount 
due  on  the  mortgage,  and  the  decree  was 
affirmed  by  the  Additional  District  Judge 
on  appeal.  Narain  Das  has  preferred  a  second 
appeal  to  this  Court. 

Two  points  have  been  argued,  one  being 
the  question  of  limitation  and  the  other 
that  of  the  jurisdiction  of  the  Assistant 
Collector  to  try  the  suit.  The  case  is  govern- 
ed by  Art.  144  of  the  First  Schedule  to 
the  Limitation  Act,  and  not  by  Art.  148 
as  a  co- mortgagor  who  redeems  the  whole 
mortgage  doe's  not  become  a  mortgagee  of 
the  shares  of  the  co-owners,  but  merely  has 
a  charge  on  the  property:  see  Vasudev  v. 
Balaji  (1)  and  Basanta  v.  Dhanna  Singh  (2). 
The  lower  Appellate  Court  has  held  that  the 
possession  of  a  co-mortgagor  who  redeems 
the  entire  property  does  not  become  ad- 
veise  to  the  other  mortgagors  until  he 
openly  asserts  an  exclusive  title,  and  that 
as  there  was  no  such  assertion  in  the  present 
case  the  suit  is  within  time.  This  decision 
is  no  doubt  supported  by  Ram  Narayan 
Rai  v.  Ham  Deni  Rai  (3)  but  a  different 
view  has  been  taken  in  other  High  Courts 
and  their  rulings  have  been  referred  to  and 
followed  in  Wazir  v,  Girdhari  (4)  by  Camp- 
bell, J.,  who  has  observed  that  the  rule  that 
ordinarily  one  co- sharer  cannot  hold  adverse- 
ly against  another  proceeds  upon  a  rebuttable 
presumption  th at  t he  co- sharer  in  exclusive 
possession  is  holding  on  behalf  of  the  other 
co-sharers,  and  that  this  presumption  is 
rebutted  when  it  is  shown  that  the  co-sharer 
in  possession  denies  the  right  of  the  other 
co-shareis  to  enter  into  joint  possession  until 
they  have  paid  to  him  their  share  of  a 
charge  upon  the  properly  which  he  has 
defrayed.  The  view  taken  in  Wazir  v.  Gir- 
dhari (4)  is,  in  my  opinion,  the  correct  one, 
The  appellant  was  not  hpjding  on  behalf 
of  the  plaintiff  when  he  was  denying  f he 
plaintiff's  right  to  enter  into  possession 
without  payment  of  his  share  of  the  charge 
on  the  pioperty.  His  possession  was  con- 
sequently adverse,  and  if  it  Jias  continued 
for  twelve  years  the  suit  is  barred  by  Ijumitp- 

(1)  26  B,  500;  4  Bom.  L.  R.  178. 

(2)  55  Ind.  Cae.  450. 

(3)  63  Ind  Cas.  282;  A,  I.  R.  1S23  Pat.  98;  6P,  L.  J. 
680;  (1922)  Pat.  120, 

(4)  71  lad,  Cae,  €47;  A,  I,  R,  1023  Lali,  311, 


[921.  0.192*] 

tion.  It  is  contended  for  the  plaintiff  that 
notwithstanding  the  redemption  by  the 
appellant  in  15)00  the  mortgagee  remained 
in  possession  of  the  land  and  that  the 
appellant's  possession  lias  not  lasted  for  13 
years.  The  lower  Court  has  given  no  find- 
ing on  this  point,  but  it  is  unnecessary  to 
remand  the  case  as  the  appeal  must  succeed 
otx  the  ground  that  the  Assistant  Collector 
had  no  jurisdiction. 

The  only  power  which  s.  117  of  the  Land 
Revenue  Act  gives  to  a  Revenue  Officer 
acting  as  a  Court  is  to  determine  the  ques- 
tion of  title  arising  in  the  partition  pro- 
ceedings, and  he  has  no  power  under  that 
section  to  pass  a  decree  for  possession  of 
the  land  of  which  the  title  is  in  dispute. 
See  on  this  point  Lachhmi  Bai  v.  Hondi 
Bai  (5). 

1  accordingly  accept  the  appeal,  reverse 
the  decree,  and  dismiss  the  suit  with  costs 
throughout. 

R.  L. 

(5)  21  Ind  Gas.  719;  100  P 
UP  WE  1914 


ISWOH  SANT  V,  TOftEMDRA  NATH  KUIIA, 


981 


Appeal  accepted. 
R  1913,  7  P   L,  R  19U, 


CALCUTTA  HIGH  COURT. 

APPEAL  FROM  APPELLATE  DECREE  No.  2213 

OF  1922 
JuneS,  1925. 

Present. — Justice  Sir  Babington 

Newbould,  KT.,  and  Mr.  Justice  Graham. 

ISWOR  SANT  AMD  orHEP.s— DEFENDANTS 

— APPELLANTS 

versus 

TORENDRA  NATH  KUILA— 
PLAINTIFF  —RESPONDENT. 

Civil  Procedure  Code  (Act  V  of  1908) t  s  JJ— Res 
judicata—  Deere*  confirmed  in  appeal  on  other  ground 
—Bengal  Tenancy  Act  (VIII  of  1885),  ss  29,  1<9— 
Ejectment— J7nder-raiyat—  Occupancy  i  ights—Herita- 
bihty  of  imder-raiyati  holding 

Where  in  a  suit  in  ejectment  the  Trial  Court 
holds  that  the  defendants  have  no  right  of  occu- 
pancy but  dismisses  the  suit  oil  the  ground  of 
its  being  instituted  before  the  expiry  of  the  agri- 
cultural year  in  which  the  defendants1  predeces- 
sor died  and  on  appeal  the  decree  of  dismissal  la 
affirmed  on  the  second  ground  but  the  Appellate  Court 
gives  no  finding  on  the  question  whether  the  defend- 
ants have  a  right  of  occupancy,  the  decision  of  the 
Trial  Court  that  the  defendants  had  no  occupancy 
rights  cannot  operate  as  res  judicata  in  a  subsequent 
suit  for  ejectment  [p  981,  col  2] 

An  under-raiyat  may  acquire  right  of  occupancy  by 
custom  or  usage  and  is  not  then  liable  to  be  ejected, 
[p.  982,  col,  2] 

Ordinarily  the  holding  of  an  under-raiyat  whether 
with  or  without  rights  of  occupancy  is  not  heritable, 


Tho  des-^ndant  of  an  under-miyai  with  rights  of 
occupancy,  who  fails  to  prove  that  his  piedecessoi's 
interest  was  heritable  is  a  trespasser  and,  therefore, 
liable  to  ejectment  [ibid  ] 

Appeal  against  a  decree  of  the  Sub-* 
ordinate  Judge,  Second  Court,  Midnapore, 
dated  the  12th  of  May  1922,  modifying 
that  of  the  Munsif,  Third  Court  at  Taraluk, 
dated  the  25th  of  February  1921. 

Babu  Apurba  Charan  Mukerji,  for  tho 
Appellants. 

Mr.  Mahendra  NathRoy  and  Babu  Santosh 
Kunlar  PaJ,  for  the  Respondent. 

JUDGMENT,— This  is  an  appeal 
against  a  decree  in  ejectment.  The  pre» 
decessor  of  the  defendants  was  an  under* 
raiyat  under  the  plaintiff. 

The  main  question  in  this  appeal  is  whe- 
ther that  under- raiyati  tenancy  descended 
to  the  defendants  by  inheritance.  The  first 
Court  held  that  the  defendants1  predecessor 
was  an  under-rai?/a£  with  right  of  occupancy, 
and  that  the  defendants  had  succeeded  to 
that  right.  The  lower  Appellate  Court 
has  held  that  the  defendants  had  no  right 
of  occupancy  and  were  mere  trespassers  on 
the  land  and  that  the  plaintiff  was,  therefore, 
entitled  to  a  decree  for  khas  possession  of 
the  same.  We  think  that  the  learned  Sub* 
ordinate  Judge  who  decided  the  case  ill 
the  lower  Appellate  Court  was  in  error 
so  far  as  he  held  that  the  question  whether 
thd  defendants  had  a  right  of  occupancy 
in  the  disputed  land  was  res  judicata.  In  a 
previous  suit  in  ejectment  which  was  inter 
paries  the  Munsif  who  tried  the  suit  held 
that  the  defendants  had  no  right  of  occup- 
ancy but  he  dismissed  the  suit  on  the  ground 
of  its  being  instituted  before  the  expiry  of 
the  agricultural  year  in  which  the  defend- 
ants' predecessor  died.  On  appeal  that 
decree  of  dismissal  was  affirmed  on  the 
second  ground  and  the  lower  Appellate 
Court  came  to  no  decision  on  the  question 
whether  the  defendants  had  a  right  of  oc- 
cupancy The  decision  of  the  Judicial 
Committee  of  the  Privy  Council  in  Sheosagar 
Singh  v,  Sitaram  Singh  (1)  is  a  clear  authori- 
ty for  holding  that  the  decision  of  the  first 
Court  in  the  former  suit  did  not  operate  as 
res  ]iidicata  in  the  present  suit.  But  though 
the  lower  Appellate  Court  was  wrong  on 
this  point  and  though  its  judgment  is  not 
well-expressed  there  is  a  finding  apart  from 
that  of  res  judicata  which  is  sufficient  to 
support  its  decision.  It  was  held  that  the 

(1)  24 1  A  50;  24  C  616;  K  W  N  297;  7  Sar  P.  0, 
J,  124,  12  Ind.  Pec.  (N  s,)  1079  (P,  0,), 


BHA&AT  SI4GH  V,  MATHRA. 


defendants  have  failed  to  prove  that  the 
nnder-raiyati  interest  of  the  defendants'  pre- 
decessor was  heritable  under  some  local 
custom  and  that  even  supposing  that  their 
predecessor  had  a  right  of  occupancy  there- 
in this  is  of  no  benefit  to  them  unless  they 
can  prove  local  custom  of  heritability,  It 
is  contended  on  behalf  of  the  appellants 
that  this  decision  is  wrong  and  that  if  the 
defendants1  predecessor  had  an  occupancy 
right  their  right  was  necessarily  heritable. 
It  is  now  settled  law  that  under  ordinary 
circumstances  the  right  of  an  under-raiyat 
is  not  heritable.  No  authority  has  been 
shown  to  us  in  support  of  the  contention 
that  the  interest  of  an  undei-raiyat  with  a 
right  of  occupancy  is  heritable. 

It  is  contended  that  unless  an  under- 
raiyat  with  a  right  of  occupancy  has  the 
same  benefits  which  the  law  gives  to  ^a 
raiyat  with  occupancy  rights  he  will  gain 
no  benefit  from  such  a  right.  But  there 
is  one  section  in  the  Bengal  Tenancy  Act 
which  makes  a  provision  for  the  benefit  of 
an  under-rait/at  having  an  occupancy  right 
and  that  is  s.  183.  Further  it  has  been 
held  by  a  Division  Bench  of  this  Court  in 
Ihe  case  of  Gopal  Mandal  v.  Tapai  Sankhari 
(2)  that  an  uuder-raiyat  may  acquire  right 
of  occupancy  by  custom  or  usage  and  is  not 
then  liable  to  be  ejected  under  s.  49  of  the 
Bengal  Tenancy  Act.  We  are  unable  to 
accept  the  contention  that  from  this  decision 
it  follows  that  when  an  under-raii/at  has  a 
right  of  occupancy  s.  26  of  the  Bengal  Ten- 
ancy Act  is  applicable.  Section  26  is  by  its 
terms  limited  to  the  case  of  raiyat  in  respect 
of  his  right  of  occupancy  and  cannot  be  held 
applicable  to  the  case  of  an  uuder-raiyat 
who,  as  already  stated,  has  not,  as  such,  a 
transferable  right  in  his  holding.  In  the 
case  of  a  raiyat  his  holding  is  heritable 
whether  he  is  an  occupancy-ratt/ai  or  a  non- 
occupancy  raiyat.  In  the  case  of  an  under- 
raiyat  who  has  no  right  of  occupancy  his 
holding  is  certainly  not  heritable  and  we 
can  find  nothing  either  in  the  statutory  law 
or  in  the  case  law  which  would  make  an 
exception  in  the  case  of  an  under-raiz/a£ 
with  right  of  occupancy.  We,  therefore, 
hold  that  the  decision  of  the  Subordinate 
Judge  is  right  on  the  ground  that  the  de- 
fendants having  failed  to  prove  that  their 
predecessor's  interest  was  heritable  under 
a  local  custom,  were  trespassers  on  the  land 
and  were  liable  to  be  ejected  without  no- 

(2)  44  Ind.  Gas.  545;  46JO.  43;  28  C,  L.  J.  81,  22  0,  W 
K  018. 


[92 1  0. 1926] 


tice.  It  is  contended  that  the  lower  Ap- 
pellate Court  should  have  decided  the  issue 
which  was  raised  in  the  first  Court  whether 
the  defendants  had  been  recognised  as 
tenants  after  their  predecessor's  death. 
That  issue  was  decided  against  the  defend- 
ants by  the  Court  of  first  instance.  It 
does  not  appear  that  in  the  lower  Appel- 
late Court  a  contention  was  raised  on  the 
respondent's  behalf  that  this  portion  of  the 
first  Court's  judgment  was  wrong.  It  was, 
therefore,  unnecessary  for  the  lower  Appel- 
late Court  to  record  a  finding  on  that  issue. 

We,  accordingly,  dismiss  this  appeal 
with  costs, 

R,  L.  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1018  OF  1925. 

January  7,  1926. 

Present: — Mr.  Justice  Broadway. 

BHAGAT  SINGH  AND  ANOTHER— 

DEFENDANTS — APPELLANTS 

versus 

MATHRA  AND  OTHERS— PLAINTIFFS- 
RESPONDENTS. 

Specific  Relief  Act  (I  of  1877),  s.  ^—Creation  of 
evidence — Eight  to  sue. 

Wherever  evidence  is  being  created  which  might 
ultimately  result  in  disturbing  the  title  of  the  plaint- 
iff, he  has  a  cause  of  action  to  sue  under  section  42, 
Specific  Kehef  Act  [p.  383,  col  2.] 

Gandla  Pedda  Naganna  v  Sivanappa,  26  Ind.  Cas. 
232,  38  M.  1162  at  p.  ll/>.  16  M.  L.T.  310;  27  M.  L.  J. 
520,  followed. 

Second  appeal  from  a  decree  of  the 
District  Judge,  Gurdaspore,  dated  the  3rd 
April  1925,  affirming  that  of  the  Subordi- 
nate Judge,  Second  Class,  Gurdaspore, 
dated  the  10th  August  1923. 

Lala  Mehar  Chand  Mahajan,  for  the  Ap- 
pellants. 

Lala  Fakir  Chand,  for  the  Respondents. 

JUDGMENT.—  The  house  in  dispute 
in  the  litigation  giving  rise  to  this  second 
appeal  originally  belonged  to  one  Jiwan. 
Jiwan  died  some  40  years  ago  leaving  him. 
surviving  a  widow  Musammat  Naraini  but 
no  issue.  Musammat  Naraini  continued  to 
live  in  that  house  with  a  man  named 
Bhagat  Singh.  Mathra  and  others,  rever- 
sioners  of  Jiwan,  on  the  31st  October  1921 
instituted  a  suit  against  Musammat  Naraini 
and  Bhagat  Singh,  alleging  that  Bhagat 
Singh  was  making  alterations  in  the 
house  in  suit  in  such  $  manner  as  leqi 


[92 1,  0. 1928]  BHAOAT  swas 

plaintiffs  to  think  that  Musammat  Naraini 
had  gifted  the  house  to  him,  and  asking 
for  a  declaration  that  the  alterations  so 
made  and  the  expenses  so  incurred  would 
not  affect  their  reversionary  rights. 
Naraini  and  Bhagat  Singh  both  contested 
the  suit  vigorously  alleging,  inter  alia, 
that  they  were  husband  and  wife  and  that 
the  suit  was  barred  by  limitation.  The 
Courts  below,  after  a  consideration  of  the 
evidence  led,  came  to  the  conclusion  that 
while  the  plaintiffs  were  Jiwan's  collaterals 
and,  therefore,  reversioners,  the  marriage 
set  up  between  Musammat  Naraini  and 
Bhagat  Singh  had  not  been  proved,  and 
granted  the  plaintiffs  a  decree  as  prayed 
Bhagat  Singh  has  come  up  to  this  Court  in 
second  appeal  through  Mr.  Mehr  Chand 
Mahajan.  It  appears  that  Musammat 
Naraini  died  while  the  appeal  was  pending 
in  the  lower  Appellate  Court. 

Mr.  Mehr  Chand  has  addressed  me  on 
three  points.  One  point  was  that  as  Musam- 
mat Naraini  had  died  while  the  appeal  was 
pending  in  the  lower  Appellate  Court, 
the  lower  Appellate  Court  should  have 
acted  in  accordance  with  that  what  was 
laid  down  in  Sat  Bharai  v.  Sat  Bharai  (1) 
and  dismissed  the  plaintiffs*  suit.  I  am, 
however,  not  pressed  with  this  contention. 
The  facts  in  Sat  Bharai  v.  Sat  Bharai  (1) 
were  quite  different.  There  the  Trial  Court 
had  refused  to  grant  an  injunction  and  in 
appeal  an  injunction  was  granted  after 
the  holder  of  the  limited  estate  had 
died. 

Next,  Mr.  Mehr  Chand  raised  an  entirely 
new  point  and  one  that  had  admittadly 
never  been  raised  nor  argued  in  any  of  the 
lower  Courts,  He  urged  that,  having  regard 
totheprovisionsof  s.  42  of  the  Specific  Relief 
Act,  the  suit  as  framed  was  incompetent. 
He  pointed  out  that  what  was  complained 
of  was  that  certain  structural  alterations 
were  being  made  in  the  house,  and  from 
this  he  urged  it  waa  evident  that  the 
status  of  the  plaintiffs  was  not  interfered 
within  anyway  and  they  had  no  cau^e  of 
action.  Here  again  I  am  unable  to  agree. 
The  plaint  definitely  stated  that  the  struc- 
tuai  alterations  led  the  plaintiffs  to  the 
conclusion  that  Musammat  Naraini  had 
gifted  the  property  to  Bhagat  Singh,  and 
the  conclusion  the  plaintiffs  came  to  was 
thdt  evidence  was  being  created  which 
would  affect  their  rights  at  a  subsequent 

(1)  18  Ind.  Gas.  329,  65  P.  R  1913,  24  P,  W.  R  1913, 
4<H>.  LTK  "" 


>.  MATIIBA 


983 


date  This  would  give  them  a  right  to  sue, 
This  view  is  in  consonance  with  what  was 
held  by  a  Division  Bench  of  the  Madras 
High  Court  in  Gandla  Pedda  Naganna  v. 
Sivanappa  (2)  where  their  Lordships  say 
"So  far  as  Madras  is  concerned,  the  latest 
authority  is  in  favour  of  the  position  that 
wherever  evidence  ia  being  created  whicfy 
might  ultimately  result  in  disturbing  tho 
title  of  the  plaintiff,  he  will  have  a  cause  of 
action  to  sue  under  s.  42  "  There  can  be 
no  doubt  that  the  action  taken  by  Bhagat 
Singh  in  the  present  case  might  well  be 
regarded  as  the  creation  of  evidence  to  sup- 
port a  gift  in  his  favour,^  and  I  am  there- 
fore of  opinion  that  the  suit  was  compe- 
tent. 

Finally,  it  was  urged  that  the  finding  on 
the  question  of  the  marriage  between 
Mummmat  Naraini  and  Bhagat  Singh, 
although  one  of  fact,  was  open  to  examina- 
tion, inasmuch  as  the  learned  District 
Judge  had  not  given  due  weight  to  the 
presumption  arising  out  of  long  and  con- 
tinued cohabitation  between  a  man  and 
woman  who  were  in  a  position  to  marry. 
Reference  was  made  to  Indar  Singh  v. 
Tkakar  Singh  (3)  where  it  was  held  that 
"there  is  in  law  a  presumption  in  favour 
of  marriage  and  against  concubinage  when 
a  man  and  woman  have  cohabited  con- 
tinuously for  a  number  of  years  and  this 
presumption  of  law  can  be  repelled  only  by 
strong,  distinct  and  conclusive  evidence." 
In  the  case  while  the  learned  District 
Judge  has  not  specifically  referred  to  long 
cohabitation,  in  my  judgment  it  is  perfect- 
ly clear  that  he  has  not  lost  sight  of  the 
fact  that  these  two  persons  had  been  living 
together  for  a  considerable  period.  The 
importance  of  tho  marriage  lies  in  the  fact 
that  if  the  marriage  could  be  held  to  have 
taken  place  whea  the  cohabitation  first 
began,  Musammat  Naraini  would  have  for- 
feited her  estate  on  marriage  and  the  present 
suit  would  undoabtedly  be  barred  by  limi- 
tation. In  the  present  case  both  of  them 
definitely  sat  up  ananand  marriage  and  led 
evidence  to  support  their  allegation,  which 
evidence  has  been  held,  wholly  unreliable 
by  both  Courts.  As  pointed  out  by  Mr. 
Faiir  Olunl,  there  was  every  reason  why 
theastwo  should  marry,  for  their  marriage 
would  have  entailed  tha  forfeiture  of 

(•2)  26  In-i  Chs  232,  33  M.  1162  at  p  1170,  15  M  L. 
T.  310,  27  M.  L  J.  520 

(3)  W  Ind.  CUs,  337;  2  L,  207;  3  U.  P  L.  R  (L.)  82,  3 
L,  I*  J.  317, 


984  tJMASASI  DBDI  t>.  AKRUR  CHANDRA  MA35UMDAR,  [92  I,  0,  1926] 

Musammat  Naraini's  estate  or,  at  any  rate,     the  16-annas  rent  of  the  land    in  question 

and  the  defendant  had  no  right  in  respect 
ofihe  land.  She  also  asked  for  a  perpetual 
injunction  to  restrain  the  defendant  frojp. 
obstructing  her  in  the  realisation  of  the 


or,  at  any  rate, 

the  risk  of  forfeiture  and  the  manner  in 
which  Bhagat  Singh  of  recent  years  began 
to  make  alterations  in  the  house  is  a  strong 
indication  that  the  view  taken  by  the 
Courts  below  is  correct.  It  seems  to  me 
that  Bhagat  Singh  was  endeavouring  to 
create  evidence  which  he  could  refer  back 
to  as  showing  a  gift  iji  his  favour. 

In  these  circumstances  I  must  dismiss 
this  appeal  with  costs. 

£.  L,  Appeal  dismissed. 


CALCUTTA  HIGH  COURT. 

AFPBAL  FROM  APPELLATE  DECREE  5No.'  282 

OF  1923. 

July  21,  1925. 

Present:— Hr.  Justice  Cum  ing  and 

Mr.  Justice  Chakravarti. 
UJ£ASA8l  DEBI— PLAINTIFF— APPELLANT 

versus 

AKRUR  CHANDRA  MAZUMDAR— 
DEFENDANT  AND  OTHERS— Pro  forma 

DEFENDANTS — RESPONDENTS. 
Civil  Procedure  Code  (Act  V  of  W08),  s,  66— Bcnami 
auction-purchase — Declaration,  suit  /or,  whether  main- 
tainable.     «  >*' 

A  suit  for  a  declaration  equally  with  a  suit  for 
possession  is  within  the  ambit  of  s,  66,  C.  P.  0.  Theie- 
fore,  a  suit  for  declaration  that  a  ceitified  purchaser  at 
a  Court  sale  is  only  an  ostensible  purchaser  and  that 
the  "purchase  was  effected  as  plaintiff's  agent  is  barred 
by  the  provisions  of  the  section,  [p.  98a,  col  2,  p,  DSC, 
col.  I.] 

Sasti  Charan  Nundi  v.  Annapurna,  23  C.  699,  12 
Ind  Dec.  (N  s }  465,  dissented  from 

Hanumaft  Persad  Thakur  v.  Jadunandan  Thakur 
29  Ind.  Gas.  787;  20  C.  W.  N.  147,  43  0.  20  and  Buhan 
Dial  v.  Qhaziuddin,  23  A.  175,  A.  W.  N.  (1901)  44, 
referred  to. 

Appeal  against  a  decree  of  the  Subordi- 
nate Jndge,  Second  Court,  Hoogbly,  dated 
the  llth  of  September  1922,  modifying  that 
ot  the  Munsif,  Third  Court  at  Serampur, 
dated  the  26th  of  April  1921, 

Sir  Provas  Chandra  Mitter,  Kt,,  and  Babu 
Hira  Lai  Chakravarti,  for  the  Appellant. 

Babu  Rupendra  Coomar  Mitter,  for  Dr. 
Bijan  Kuma?  Mukerji  and  Babu  Amulya 
Dhan  Mukherji,  for  the  Respondents. 

JUDGMENT. 

Cumlng,  J.— In  the  suit  put  of  which 
this  appeal  has  arisen  the  plaintiff  who  is 
the  appellant  before  this  Court  sued  for  a 
declaration  that  she  had  lakheraj  and 
jamai  right  purchased  at  auction  sale  in 
respect  of  some  3- annas  odd  share  left  by 
husband  and  that  she  was  entitJsd  to 


rents  of  this  land.  If  it  should  be  found 
that  the  plaintiff  was  not  in  possession  o£ 
the  land  then  she  sued  to  recover  possession. 
Her  case,  as  a  perusal  of  the  plaint  will 
make  quite  clear,  is  that  her  husband 
bought  the  lakheraj  right  in  the  land  in 
his  own  name  and  with  his  own  money. 
Subsequent  to  this  he  purchased  the  tenants* 
right  in  the  land  on  the  24th  of  February 
at  a  sale  in  execution  of  a  decree  in  the 
name  of  the  defendant  No.  1,  obtained  a 
certificate  of  sale  and  in  virtue  of  this  sale 
certificate  obtained  possession  of  the  pro- 
perty. Some  of  the  land  he  kept  in  his 
own  possession  and  the  rest  was  let  out  to 
tenants.  The  kab uliyats  were  in  the  name 
of  the  defendant  No.  1  because  the  sale 
certificate  stood  in  his  name.  Umesh 
Chandra  JIukerji  the  husband  of  the  pre- 
sent plaintiff  died  leaving  no  son  and  the 
defendant  No.  1  taking  advantage  of  this 
circumstance  has  persuaded  the  tenants 
not  to  pay  rent  to  the  plaintiff.  From  this 
the  plaintiff  realises  that  the  defendant 
intends  to  take  possession  of  the  property 
left  by  her  husband  and  hence  she  has 
brought  this  suit  asking  that  the  Court 
will  declare  that  she  has  lakheraj  and 
jamai  title  purchased  at  auction  gale  of  the 
3-annas  odd  share  left  by  her  husband  and 
also  a  declaration  that  she  is  entitled  to  the 
16-annas  share  of  the  rent,  that  the  defend- 
ant has  no^  title  to  the  property  and  that 
her  possession  may  be  confirmed.  I£  by 
any  circumstances  it  be  found  that  she  is 
not  in  possession  then  she  may  recover  pos- 
session. She  also  asked  for  an  account 
from  the  defendant  of  any  rent  that  the  de- 
fendant might  have  realised  from  the 
tenants.  The  case  of  the  defendant  No.  1 
who  alone  has  contested  this  case  is  that  he 
is  the  real  owner  of  the  property  and  that 
s.  66  (old  s.  317  of  the  C.  P.  C )  is  a  bar  to 
the  suit. 

The  Trial  Court  found  that  defendant 
No.  1  was  the  benamdar  of  the  husband  of 
the  plaintiff,  that  the  plaintiff  had  been  in 
possession  from  the  date  of  purchase  up  to 
the  institution  of  the  suit,  and  that  the  de- 
fendant wag  liable  to  render  accounts  to 
the  plaintiff.  He  found  that  the  plaintiff's 
suit  was  not  barred  by  the  provisions  of 
s,  68  aad  grdsred  tl^t  her jj " 


(92  L  0. 1926] 

nishkar  title  to  the  lands  in  suit  should  be 
declared.  The  defendant  was  restrained 
from  interfering  with  her  possession.  He 
was  also  to  render  her  accounts.  Defendant 
No.  1  appealed  to  the  District  Court.  The 
learned  Subordinate  Judge  held  that  the 
plaintiff  had  been  dispossessed  from  the 
land  before  the  suit  and  was  not  now  in 
possession,  that  the  defendant  was  the 
benamdar  of  the  plaintiff's  husband,  that 
s.  66  was  a  bar  to  the  suit  and  ordered  that 
the  suit  of  the  plaintiff  so  far  as  it  related 
to  the  jamai  right  of  the  plaintiff  would 
be  dismissed. 

The  plaintiff  has  appealed  to  this  Court, 
Her  case  is  if  i  have  understood  it  right- 
ly as  follows: — 

(1)  That  the  lower:  Court  has  wrongly 
found  that  she  is  not  in  possession  and  as 
she  is  in  possession  she  is  entitled  to  main- 
tain a  suit  for  confirmation  of  possession. 
In  support  of  this  contention  she  relies  on 
the  case  of  Sasti  Charan    Nundi  v.  Anna- 
purna  (1). 

(2)  That  by  payment  of  rent  to  the  land- 
lord a  new  tenancy  has  been  created  in  hei 
favour  and  that  she  has  a  title  independent 
of  the  purchase  by  her  husband  in  the  name 
of  the  defendant  and  to  this  title  the  piovi- 
sions  of  s.  66  are  not  a  bar, 

(3)  That  the  purchases  made    by  the  de- 
fendant of    the   tenancy  rights  in   1915-16 
were  made  by  the  defendant  as  her   agent 
and  hence  she  is  entitled  to  a  declaration  of 
her  tenancy  urider  these  purchases. 

Now  it  seems  to  me  on  the  facts  as  found 
by  the  learned  Subordinate  Judge  the 
plaintiff's  case  must  fail  and  that  s.  06  is  a 
bar  to  her  suit. 

This  suit  is  governed  by  the  old  Code  and 
s.  317  of  that  Code  which  corresponds  to 
s.  66  of  the  present  Code  is  as  follows  •  — 

"No  suit  shall  be  maintained  against  the 
certified  purchaser  on  the  ground  that  the 
purchase  was  made  on  behalf  of  any  other 
person,  or  on  behalf  of  some  one  through 
whom  such  other  person  claims/' 

Now  the  case  of  the  plaintiff  as  made  in 
her  plaint  is  clearly  this,  that  the  property 
was  purchased  by  her  husband  in  the 
benami  of  the  defendant  No  1.  It  is  noth- 
ing else  although  the  learned  Advocate  for 
the  appellant  has  spent  a  day  and  a  half  in 
trying  to  persuade  us  that  the  case  of  the 
plaintiff  was  that  she  had  an  independent 
title  by  paying  rent  to  the  zemindar. 

(1)  23  0  699;  1?  In4,  Dec.  (N.  s)  465, 


UMASASI  DEBT  V.  AKRUR  CHANDRA  MAZUMDAR. 


985 


Reading  the  section  as  it  stands  it  is  quite 
immaterial  whether  the  plaintiff  was  or  wag 
not  in  possession  at  the  time  of  the  suit.  It 
seems  to  me  that  a  declaratory  suit  equally 
with  a  suit  to  recover  possession  comes 
within  the  mischief  of  the  section. 

The  plaintiff  has  relied  on  the  case  of 
Sasti  Charan  Nundi  v.  Annapurna  (1)  and 
asks  us  to  hold  that  if  she  is  in  possession 
then  s.  66  (317)  is  no  bar  to  her  suit.  With 
due  respect  to  the  learned  Judges  it  is  very 
difficult  to  reconcile  this  decision  with  the 
plain  words  of  the  Statute.  The  learned 
Judges  remaik-  "Section  317  does  not  make 
all  benami  transactions  invalid  nor,  lead 
with  s.  316,  does  it  confer  upon  the  ostensible 
purchaser  a  title  as  against  the  real  pur- 
chaser. It  merely  declaies  that  a  suit  shall 
not  be  maintained  against  the  certified  pur- 
chaser on  the  ground  that  he  was  only  the 
ostensible  purchaser.  The  ostensible  pur- 
chaser could  not  insist  on  his  certified  title 
to  recover  from  the  real  owner  in  posses- 
sion. If,  therefore,  the  defendant  sets  up 
the  sale  certificate  as  an  answer  to  the 
plaintiff's  case,  there  is  nothing  to  prevent 
the  Court  from  going  into  the  question  whe- 
ther that  sale  certificate  did  or  did  not  confer 
a  valid  title  upon  the  defendant  as  against 
the  plaintiff.  It  is  not  a  case  in  which  the 
plaintiff,  relying  on  a  sale  certificate,  seeks 
to  obtain  a  decree  for  possession  against 
the  ostensible  purchaser.  Keating,  as  it.does, 
on  an  existing  possession,  we  do  not  think 
that  it  is  a  suit  of  the  natuie  prohibited  by 
s.  317  (present  s  66)." 

If  I  understand  the  learned  Judges 
aright  they  would  seem  to  hold  that  in  a 
suit  for  confiimation  of  possession  the 
plaintiff  Las  not  to  prove  his  title  for  ob- 
viously s.  66  would  be  a  bar  to  his  maintain- 
ing a  title  based  on  a  benami  purchase. 
Neither  do  I  understand  what  is  meant  by 
a  title  lesting  on  existing  possession.  Sure- 
ly it  is  not  sufficient  for  a  person  asking 
for  confirmation  of  possession  to  say  "  I 
am  in  possession.  Prove  that  I  have  no 
title."  As  far  as  I  am  aware  this  case  stands 
alone.  It  has  never  been  followed  but  has 
been  dissented  from,  See  the  case  of 
Hanuman  Persad  Thakur  v.  Jadunandan 
Thakur  (2)  where  Cox,  J.  points  out  that  if 
accepted  as  good  law  it  would  practically 
repeal  the  whole  section.  See  also  the  case 
of  Bishan  Dial  v.  Gaziuddin  (3).  The 
learned  Judge,  Strachey,  C.  J.,  in  consider- 

(2)  29  Ind  Caa  787,  20  0  W.  N.  147;  43  0,  20, 
W  23  A,  175,  A.  W.  N.  (1901)  44. 


ARSHAD  ALI  ft  ZORAWAB  SINGH. 


ing  the  case  of  Sasti  Charan  Nundi  v. 
Annapurna  (1),  remarks  that  if  that  case 
holds  that  s.  317  only  applies  when  the 
plaintiff  being  out  of  possession  seeks  to 
recover  possession  and  can  never  apply  to 
a  suit  by  a  plaintiff  in  possession  for  a  de- 
claration that  the  certified  purchaser  out  of 
possession  is  not  the  real  purchaser  he  can- 
not agree  with  that.  I  am  myself  of 
opinion  that  it  is  immaterial  whether  the 
plaintiff  is  in  possession  and  seeks  a  con- 
iirmation  of  possession  or  whether  he  is  out 
of  possession  and  seeks  to  recover  posses- 
sion. In  either  case  s.  66  applies. 

The  appellant  seems  also  to  have  attempt- 
ed somewhat  faintly  to  make  out  that  the 
property  was  conveyed  to  her  husband  by 
his  being  put  in.  possession  after  the  pur- 
chase. How  this  could  give  the  plaintiff 
any  title  in  the  absence  of  a  conveyance  as 
required  by  the  Transfer  of  Property  Act, 
I  admit  I  do  not  understand  (2).  The  next 
argument  advanced  by  the  appellant  is  that 
she  or  rather  her  husband  acquired  a  title 
independent  of  her  purchase  by  paying 
rent  to  the  zemindar  I  must  admit  that 
this  argument  was  put  forward  in  a  some- 
what shadowy  form.  I  presume  that  the 
learned  Advocate  meant  that  she  or  rather 
her  husband  had  been  recognised  by  the 
zemindar.  Otherwise  I  do  not  understand 
how  any  title  could  be  acquired  by  the 
mere  payment  of  rent.  In  order  to  estab- 
lish or  to  attempt  to  establish  this  part 
of  his  case  the  learned  Advocate  was 
obliged  to  take  us  through  a  large  portion 
of  the  evidence  of  the  case.  The  mere 
necessity  for  doing  this  made  it  at  once 
evident  that  this  had  never  formed  any 
part  of  the  case  of  the  appellant  in  either 
of  the  Courts  below. 

It  was  perfectly  obvious  that  this  had 
never  formed  any  part  of  the  case  of  the 
appellant  in  the  lower  Courts  and  it  is  some- 
what difficult  to  imagine  how  the  learned 
Advocate  for  the  appellant  could  have 
thought  that  he  would  be  allowed  for  the 
first  time  in  second  appeal  to  make  out  a 
case  which  depended  on  findings  of  facts 
which  had  never  been  even  suggested  in  the 
lower  Courts. 

(3)  The  appellant  lastly  attempted  to 
argue  that  the  purchases  made  by  the  de- 
fendant of  certain  tenancies  as  the  result  of 
certain  decrees  obtained  in  1915  and  1916 
were  made  by  the  defendant  as  the  agent 
of  the  plaintiff. 
JJere  again  the  same  difficulty  confronts 


[9210.1926] 

us,  viz,t  that  this  case  that  these  purchases 
were  made  by  the  defendant  as  the  agent 
of  the  plaintiff  finds  no  place  in  the  case  of 
the  plaintiff  either  in  her  plaint  or  in  the 
case  as  presented  to  the  lower  Courts.  It  is 
obviously  a  question  of  fact  and  cannot  be 
raised  for  the  first  time  in  second  appeal. 
In  para.  7  of  the  plaint  the  plaintiff  distinct- 
ly sets  out  that  after  the  death  of  her  hus- 
band her  son-in-law  managed  her  proper- 
ties. It  is  not  sufficient  to  say  that  a  person 
is  an  agent.  It  is  necessary  to  set  out  what 
is  the  scope  of  the  agency  in  order  to 
determine  whether  any  particular  act  was 
done  by  the  person  as  an  agent  or  not  and 
for  this  purpose  a  definite  case  would  have 
to  be  made  out.  The  only  suggestion  in. 
the  plaint  is  that  the  defendant  looked  after 
tlje  suits  of  the  plaintiff. 

There  is  no  suggestion  that  it  was  any 
part  of  his  duty  to  purchase  properties  on 
behalf  of  the  plaintiff.  The  case  of  Ganga 
Baksh  v.  Rudar  Singh  (4)  may  be  referred 
to  in  this  connexion. 

The  result  is  that  the  appeal  must  fail 
and  is  dismissed  with  costs. 

Chakravarti,  J,— I  agree  with  the 
order  proposed  by  my  learned  brother, 

The  plaint  in  this  case  was  framed  in 
open  disregard  of  the  provisions  of  s.  66, 
0  P.  0.  The  only  ground  upon  which  the 
bar  might  have  been  avoided  was  not  taken 
in  either  of  the  Courts  below  and  in  the 
result  the  defendant  retains  and  enjoys  the 
fruits  of  his  fraud  which  has  been  so  clearly 
established.  It  is  only  to  be  hoped  that 
this  case  will  serve  as  an  example  for  dis- 
suading people  from  indulgence  in  the 
pernicious  habit  of  creating  benami  title 
and  in  some  measure  further  the  object 
with  which  s.  65,  C.  P.  C.,  was  enacted. 

R  L.  Appeal  dismissed. 

(4)  22  A   431  at  p.  437;  A.  W.  N.  (1903)  152;   9  Tnd. 
Doc  (N  s)1327. 


LAHORE  HIGH  COURT. 

CIVIL  APPISAL  No.  1014  OP  1924. 

January  14,  1923. 
Present:— Mr.  Justice  Campbell  and 

Mr.  Justice  Zafar  AH. 
Sheikh  AB8UAD  ALI—Pi^iNTiFF 
— APPBLLAN  r 

versus 
ZORAWAR  SINGH  AND  OTHERS— 

DEFENDANTS  —RESPONDENTS. 
Suits  Valuation  Act  (VII  of  1337),  8.  S- Local  Rule* 


£92 1.  0. 1826J 


ARSHAD  ALt-t?.  ZORAWAR  SINQtt, 


987 


^-Suit  for  postettion  of  definite-plot  out  of  estate  assess 
id  to  revenue— Jurisdictional  value—Civil  Procedure 
Code  (Act  V  of  1908),  s.  11*9— Court-fee,  deficient,  pay- 
ment of— Limitation,  question  of— Pre-emption  suit — 
Improvements  by  vendee —Compensation 

In  the  Pimjab  the  value  of  a  pre-emption  suit  for 
purposes  of  jurisdiction  ig  30  times  the  proportionate 
amount  of  revenue  recorded  as  payable  for  the  holding 
in  which  the  land  in  suit  is  comprised  even  though  it 
be,  a  specified  plot  by  metes  and  bounds  and  not  a 
definite  share  of  the  holding  [p  987,  col  2  ] 

Where  a  Court  dismisses  a  suit  and  simultaneously 
with  the  dismissal,  ciders  making  up  tho  deficiency  in 
Court-fee,  the  order  should  be  considered  to  have  been 
made  under  s.  149,  0,  P  0,  as  the  Courtis  entitled 
to  pass  such  an  order  at  any  stage  of  the  case  In 
such  a  case  the  effect  for  purposes  of  limitation  is  the 
same  as  if  the  Court- ree  lemaaded  had  been  paid  in 
the  first  instance,  [p  988,  col  1  ] 

A  vendee,  in  a  pre-empt  1011  suit,  is  in  equity  entitled 
to  compensation  for  improvements  effected  after  the 
institution  of  the  suit  when  he  had  no  notice  of  the 
institution  of  the  suit  and  the  improvements  had  been 
effected  after  the  expiry  of  the  period  of  limitation  for 
thesuit.  [p  988,  cols  1  &  2] 

Appeal  against  an  order  of  the  Court  of 
the  Senior  Sub  Judge,  Rohtak,  dated  the 
31st  January  1921. 

Bakhshi  Tek  Chand,  for  the  Appellant. 
Messrs,  Shamair  Chand,  Sagar  Chand  and 
Lala  Harish  Chandra,  for  the  Respondents. 
JUDGMENT.— This  appeal  arises  out 
of  a  pre-emption  suit.  The  vendor  was 
Anwar  All  and  the  vendee  was  Zorawar 
Singh.  The  sale  was  on  the  20th  of 
August  1917  ostensibly  for  Rs.  3,300  of  a 
small  plot  of  one  bigha  and  15  bisivas  at 
Rohtak,  The  suit  was  instituted  on  the 
19th  of  August  19 18  in  the  Court  of  the 
Munsif  and  the  plaint  stated  the  value  of 
the  suit  for  purposes  of  jurisdiction  to 
be  30  times  the  ]ama,  namely,  Rs.  39-1  0 
and  for  purposes  of  Couit-fee  Rs.  13  0-4,  the 
Court-fee  being  Rs.  1-2  0.  The  plaint  alleged 
that  the  price  mentioned  in  the  sale-deed 
of  Rs.  3,31)0  was  fictitious  and  that  the 
market  value  was  Rs.  175.  The  prayer  was 
to  pre-empt  at  that  price. 

A  preliminary  issue  was  framed.  "Whe- 
ther the  suit  was  beyond  the  jurisdiction 
of  tho  Court1?  and  on  an  admission  by  the 
plaintiffs  Counsel  that  it  was  probably  so, 
the  plaint  was  sent  to  the  District  Judge 
with  a  request  that  it  should  be  made  over 
to  a  Court  competent  to  hear  it.  This  was 
on  the  19fch  of  June  1919.  Previous  to 
this  on  the  20th  of  August  1918,  the  day 
after  the  suit  was  filed  the  plaintiff  had 
applied  to  the  Court  that  the  suit  should 
bs  postponed  without  issue  of  summons 
because  the  plaintiff,  who  is  the  son  of  the 
vendor,  had  then  pending  another  suit 
for  possession  of  the  same  land  or  for  a 


declaration  that  the  sale  should  not;  affect 
his  reversionary  rights.  When  this  was 
decided  and  the  present  suit  was  taken  up 
on  theSOfch  of  May  the  defendant  vendee 
was  summoned  and  he  then  objected  that 
the  suit  was  beyond  the  jurisdiction  of  the 
Munsif. 

The  District  Judge  sent  the  suit  to  the 
Junior  Sub-Judge  who  found,  firstly,  in 
favour  of  the  plaintiff  that  the  land  was 
not  sakni  land  as  alleged  by  the  defend- 
ant, secondly,  that  out  of  the  ostensible 
sale  price,  Rs,  1,985  alone  were  paid,  thirdly, 
that  this  was  the  market  value  of  the  land, 
fourthly,  that  the  value  of  the  suit  for 
purposes  of  Court-fee  and  jurisdiction  was 
Rs.  6,038  being  the  market  value  of  the 
land  plus  the  ascertained  value  of  improve- 
ment effected  by  the  vendee  in  the  shape 
of  buildings.  Two  other  law  points  which 
need  not  be  detailed  were  decided  in  favour 
of  the  plaintiff  and  then  the  Court  held 
that  the  value  of  improvements  as  above 
stated  was  Rs.  4,053  and  that  the  suit  was 
barred  by  limitation  because  it  was  in- 
stituted in  a  Court  which  had  not  juris- 
diction to  hear  it  and  the  date  of  institu- 
tion must  be  taken  to  be  that  on  which 
it  was  transferred  by  the  District  Judge  to 
the  Junior  Subordinate  Judge  a  year  and 
10  months  after  the  sale.  The  suit  was 
dismissed  with  costs.  The  plaintiff  was 
directed  within  one  month  to  make  up  the 
requisite  Court-fee  on  a  valuation  of 
Rg  6,038  and  did  so. 

The  plaintiff  has  appealed.  The  land 
sold  is  described  in  the  sale-deed  as  1 
biqha  and  15  biswas  out  of  field  Nos.  2641 
and  2042  as  depicted  in  the  plan  attached 
to  the  deed  and  finding  of  the  lower  Court 
was  that  when  a  specific  plot  by  metes  and 
bounds  is  the  subject  of  a  pre-emption  suit 
the  case  falls  under  s.  7  (v)  (d)  of  the  Court 
Fees  Act  and  Court-fee  is  according  to 
the  maiket  value  of  the  land  and  that 
the  market  value  also  determines  the  juris- 
dictional  value. 

Whatever  may  be  correct  Court- fee  the 
learned  Sub-Judge  was  wrong  as  regrords 
jurisdiction.  The  rules  of  the  Loral  Gov- 
ernment Punjab  are  given  on  page  93,  Rules 
and  Orders  of  the  Chief  Court,  Vol. 
Ill  and  according  to  the  Explanation  of  r. 
1  (6)  the  value  for  purposes  of  jurisdiction 
of  tho  plot  in  suit  was  30  times  the  pro- 
portionate amount  of  the  revenue  recorded 
as  payable  for  the  holding  in  which  the 
land  is  comprised,  for  the  laud  ©old  was 


ARSHAD  ALT  V.  ZORAWAR  SINGH, 


manifestly  a  portion  of  part  of  an  estate 
for  which  part  the  land  revenue  payable 
is  recorded  in  the  Collector's  register.  This 
conclusion  is  not  seriously  disputed  by  the 
learned  Counsel  for  the  vendee  respondent, 
but  he  argues  that  the  Court-fee,  at  any 
rate,  was  due  on  the  market  value  under 
s.  7  (v)  (d)  since  that  applies  where  s.  7  (y) 
(6)  does  not  apply  and  that  s.  7  (v)  (6)  does 
not  apply  because  it  does  not  contain  any 
explanation  corresponding  with  that  quoted 
above  which  is  appended  to  a  similar 
provision  enacted  by  the  Local  Govern- 
ment under  powers  conferred  by  s.  3  of 
the  Suits  Valuation  Act,  1887.  It  is  not 
necessary  for  us  to  decide  this  question, 
because  what  the  learned  Counsel  alleges 
to  hav3  been  the  proper  fee  was  in  fact 
paid  in  the  lower  Court  by  the  plaintiff  in 
obedience  to  tho  order  of  the  Court,  and 
we  hold  that  in  giving  that  order  the 
Court  acted  under  s.  149  of  the  C.  P.  C., 
as  it  was  entitled  to  do  at  any  stage  of  the 
case.  The  effect  was  that  the  plaint  be- 
came of  the  same  force  and  effect  as  if 
the  Court-fee  demanded  had  been  paid  in 
the  first  instance,  and  it  cannot  be  held  now 
that  there  was  no  proper  presentation  of  the 
plaint  within  limitation. 

80  far  the  plaintiff-appellant  succeeds, 
but  in  his  further  contention  that  no  com- 
pensation for  improvements  should  be  al- 
lowed and  that  the  amount  of  such  com- 
pensation estimated  by  the  lower  Court  is 
excessive  we  are  not  disposed  to  dissent 
from  the  findings  of  the  learned  Sub- Judge. 
The  buildings  we  find  were  commenced  in 
March  1919,  that  is  to  say  after  the  ^institu- 
tion of  tho  suit,  but  no  notice  of  the  suit 
was  given  to  the  defendant  vendee  and  the 
suit  itself  was  instituted  on  the  last  day 
of  limitation.  It  is  clear  what  the  plaintiff's 
position  was.  He  had  attacked  the  alien* 
ation  in  another  way  with  a  view  to  its 
being  nullified  without  cost  to  himself,  but 
as  a  second  string  to  his  bow  he  deemed  it 
advisable  to  institute  a  suit  for  pre-emp- 
tion. He,  however,  was  guilty  of  the  blun- 
der of  asking  for  the  pre-emption  suit  to 
be  stayed  without  issue  of  process  to  the 
defendant.  What  he  should  have  done 
was  to  have  the  defendants  served  with 
summons  and  then  to  ask  for  the  suit  to 
be  stayed.  In  that  case  the  defendant 
would  have  had  no  justification  iu  claiming 
compensation  for  improvements  begun  after 
the  institution  of  the  suit.  But,  since  it 
is  not  shown  that  the  defendant  knew  anjr- 


[9210.1926] 

thing  about  this  pre-emption  suit  before  lie 
erected  his  buildings,  he  is  in  equity  en- 
titled to  compensation,  and  the  fact  that 
the  other  suit  was  in  progress  does  not 
appear  to  us  to  be  material  at  all.  Hie 
other  suit  in  the  event  was  dismissed  and 
the  dismissal  was  upheld  in  appeal.  The 
defendant  was  entitled  to  run  the  risk  of 
commencing  his  buildings  during  the  pend- 
ency of  the  other  suit,  which  he  "considered 
with  justice  to  be  a  weak  one,  and  to 
assume  that  since  the  statutory  period 
of  limitation  one  year  from  the  sale  had 
elapsed,  he  was  safe  from  a  pre-emption 
suit. 

We  have  heard  arguments  on  the  valua- 
tion of  the  improvements.  The  defendant 
produced  a  witness  who  made  out  the 
figure  to  be  Rs.  4,902.  The  plaintiff  pro- 
duced a  retired  Executive  Engineer  who 
made  it  Rs.  3,117-15-10.  The  Court  ap- 
pointed L.  Bishambar  Dayal,  District  Engi- 
neer, as  Commissioner  and  his  estimate 
was  Rs,  4,053.  It  has  been  claimed  for  the 
plaintiff  that  this  figure  should  be  reduced 
because  it  included  10  per  cent,  contractor's 
profit  and  because  L.  Bishambar  Dayal 
stated  in  cross- examination  that  his  cal- 
culation was  based  on  present  rates  which 
had  increased  during  the  last  two  years. 
We  find  that  the  plaintiff's  witness  also 
included  10  per  cent,  contractor's  profit  and 
we  consider  that  the  explanation  given  by 
L  Bishambar  Dayal  for  including  them 
is  reasonable.  As  regards  the  admission 
of  increase  of  the  rates,  the  witness  was 
speaking  of  buildings  constructed  not  two 
years  or  more  previously,  but  one  year 
only,  and  he  wa3  not  properly  cross-ex- 
amined as  he  should  have  been  by  the 
plaintiff  to  elicit  whether  there  had  been 
any  increase  in  the  rates  during  the  pre- 
vious one  year. 

We  accept  the  appeal  and  give  the 
plaintiff  a  decree  for  pre-emption  on  pay- 
ment of  Rs.  1,985  plus  R9.  4,053  total 
Rs.  6.03S  on  or  before  a  date  three  months 
from  the  date  of  decree.  The  decree  shall 
be  drawn  up  in  accordance  with  O.  XX,  r. 
14  (1),  C.  P.  C.  As  regards  costs,  each  party 
has  had  its  success  both  in  this  Court  and 
in  the  lower  Court  and  we  ordsrthe  parties 
to  bear  their  own  costs  throughout. 

R,  L.  Appeal  accepted. 

N.  H. 


[ft  I.  C.  W26]  fcOTHAWNQA 

MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  578  OF  1923. 

October  23,  1925. 

Present : — Mr.  Justice  Devadoss. 

P.  KUTHALINGA  MUDALIAR— 

DEFENDANT  No.  1 — APPELLANT 

versus 

M.  N.  SHANMUOA  MUDALIAR  AND 
OTHERS — PLAINTIFFS  AND  DEFENDANT  No.  2 

— RESPONDENTS. 

Hindu  Law — }Vidow — Maintenance — Sale  of  pro- 
perty— Future  maintenance 

A  Hindu  widow  is  entitled  to  maintain  hei  self  l>y 
selling  the  property  inherited  fiom  her  husband  if 
there  is  no  other  means  available  for  her  maintenance 
She  is  not  hound  to  starve  herself  in  order  to  benefit 
thereversioneis.  [p  990,  cols  1&2] 

Under  the  Hindu  Law  a  widow  can  alienate  her 
husband's  property  for  paying  off  the  debts  incurred 
for  her  own  maintenance  There  is  no  hard  and  fast 
rule  that  she  cannot  do  it  for  future  maintenance 
Each  case  would  depend  upon  its  ciicumstances. 
[p  889,  col  2] 

In  a  case  where  there  was  no  other  pioperty  but  a 
house  inheuted  by  a  widow  and  not  capable  of  yielding 
any  appreciable  income,  and  the  widow  sold  it  for 
Rs  000  half  of  which  went  towai  ds  liquidating  a  debt 
incurred  for  maintenance  and  the  other  half  was  kept 
by  her  for  nvun taming  herself  with  • 

Held,  that  the  sale  was  binding  in  its  entnety  upon 
the  reversioner.  [p  990,  col  2  ] 

Second  appeal  against  a  decree  of  the 
Court  of  the  Additional  Subordinate  Judge, 
Tinnevelly,  in  A.  8.  No.  53  of  1922  (A.  8. 
No.  691  of  1922,  District  Court),  preferred 
against  that  of  the  Court  of  the  Dis- 
trict Munsif,  Tenkasi,  in  O.  8.  No.  104  of 
1920  (O,  8.  No.  402  of  1919,  District  Munsif 's 
Court,  Ambasamudram). 

Mr.  S.  Ramaswamy  Iyer,  for  the  Appel- 
lant. 

Mr,  K.  Venkateswaran,  for  the  Respond- 
ents, 

JUDGMENT. — The  only  point  in  this 
appeal  is  whether  the  sale  should  be  upheld 
in  view  of  the  Undings  of  fact  of  the 
learned  Subordinate  Judge.  He  lias  found 
that  out  of  the  consideration  of  Es.  600, 
Rs.  300  went  towards  discharging  the  debts 
binding  on  the  reversioner  and  the  other 
Rs.  300  was  for  the  maintenance  of  the  second 
defendant.  The  second  defendant  who  is  a 
^vidow,  was  unable  to  maintain  herself  out 
of  thie  income  of  her  husband's  property, 
which  consisted  only  of  the  plaint  house, 
and  was  obliged  Jo  borrow.  It  has  been 
roved  satisfactorily  and  has  been  found 
>y  tfre  Ju4ge  that  she  did  incur  a  debt  of 
.  300  in  order  to  piaintajn  herself.  The 
property  left  by  the  husband  was  pply  p, 
—  wJuob,  produced  no  mcome,  She 


.  BHANUtJOA  MtJDALIAR. 


989 


had  to  sell  the  house  for  the  purpose  of 
paying  off  the  debt  already  incurred  and 
for  maintaining  herself.  It  is  not  suggest- 
ed that  the  house  was  worth  moie  than 
"Rs.  600  paid  by  the  plaintiff  for  the  eale. 
The  Subordinate  Judge  has  set  aside  the 
sale  of  the  property  with  regard  to  a  half 
and  has  upheld  the  sale  as  regards  the 
other  half.  It  is  difficult  to  see  how  a 
house  like  this  could  be  divided  into  two 
halves.  No  doubt  if  the  house  can  be 
divided  into  two  halves,  it  might  be  said 
that  his  order  is  subtainable.  But  this 
being  a  small  house  in  a  town  and  in  the 
absence  of  any  evidence  that  the  house 
could  be  divided  into  two  equal  moieties 
and  that  the  two  moieties  could  be  conveni- 
ently enjoyed,  such  a  decree  cannot  be 
said  to  be  correct 

The  question  is  whether  the  sale  of  (he 
property  should  be  upheld  or  not.  The 
Subordinate  Judge  seems  to  think  that  a 
widow  cannot  alienate  property  for  future 
maintenance.  It  is  well-settled  that  a 
widow  can  alienate  her  husband's  property 
for  paying  off  the  debts  incurred  for  her 
own  maintenance.  The  question  is  whether 
she  can  do  so  for  future  maintenance  ?  There 
is  no  hard  and  fast  rule  that  a  widow  cannot 
alienate  property  for  future  maintenance. 
Each  case  would  depend  upon  its  circum- 
stances. In  this  case  there  is  no  other  pro- 
peity  and  the  only  property  is  not  capable 
of  yielding  any  appreciable  income.  I  do 
not  see  ^why  the  widow  should  starve 
herself  in  order  to  benefit  the  reversioners. 
It  is  admitted  by  the  plaintiff  that  the 
widow  (2nd  defendant)  is  living  by  begging. 
If  that  is  so,  there  ib  every  reason  why  she 
should  find  means  to  support  herself  by 
selling  the  only  property  that  descended 
to  her  from  her  husband.  No  doubt  if 
there  are  other  properties  from  which  she 
could  get  some  income  it  may  be  said  that 
she  is  not  justified  in  selling  the  house. 
Where  land  of  considerable  extent  is  sold 
and  only  a  part  of  the  consideration  is 
found  to  be  binding  on  the  reversioner,  it 
may  be  a  question  for  the  Court,  whether 
a  portion  of  the  land  should  be  taken  by 
the  alienee  and  the  rest  should  be  released 
from  the  sale.  But  in  a  case  like  this  I 
see  no  reason  why  in  order  to  benefit  the 
reyersioner  the  widow  should  be  prevented 
from  enjoying  the  proceeds  of  the  saje.  48 
I  hav,e  already  observed,  it  is  not  suggested 
that  the  sa^e  is  not  a  bona  fide  one*  On  the 
other  han4  it  is  clear  that  Rs,  600  was  pai4 


990  fcAtA  KHAK  ft  tfATHU  KHAtf. 

in  cash  before  the  Sub-Registrar  half  of    for  her  maintenance. 


which  went  towards  liquidating  the  debt 
incurred  for  maintenance  and  the  other  half 
was  kept  for  maintaining  herself  with.  It 
is  unnecessary  to  discuss  this  point  at  any 
length  as  I  am  quite  satisfied  (hat  in  this 
case  the  widow  had  no  other  means  of 
maintaining  herself  than  by  selling  the 
only  property  that  descended  to  her. 

Sir.  Ramaswami  Aiyar  referred  to  Narnan 
Mai  \.  liar  Bhagwan  (I)    in  support  of  his 
contention  that  the  sale  should  be  upheld. 
In  that  case  the  learned  Judges  held    that 
the  proposition  that  a  widow  cannot  anti- 
cipate personal  necessity  is  not  an  inflexible 
rule.      In    Kulak    Chandra  Das  v.    Kula 
Chandra  Das  (2)  a  Bench  of  the  Calcutta 
High  Court  held  that  a  widow  need  not 
borrow  at  an  usurious  rate    of  interest  for 
maintaining  herself  and  then  allow  the  pro- 
perty to  be  sold  by  the  creditor   by  bring- 
ing a  suit  against    her.     I  think  that  a 
widow  borrowing  in  order  to  maintain  her- 
self and  then  allowing  the  property  of  her 
husband  to  be  sold  for  the    debt  incurred 
by  her  for  maintenance  would  not  be  acting 
in  the  interests  of  the  reversioners,  for  the 
interest  and  the  costs  would  amount  to    a 
large  amount  and  a  prudent  person    would 
rather  sell  the  property  and  get  ready  cash 
than  borrow  at  an  usurious  rate  of  interest 
and  there  allow  the  creditor  to  file  a  suit 
and  bring  the  property  to  sale  and  thereby 
cause  loss  to  the  reversioners.     The  same 
principle  has  been   laid    down   in  Kannu 
Chetty    v.    Amirthammal    (3)    and     Bala 
Krishna  Das  v.  Hira  Lai  (4).    On  the  other 
side  I  am  referred  to  the  decision  in  Appajee 
Panthulu  v.  Ramacharlu  (5)  as  supporting 
the  contention  of  the  respondent  that  the  sale 
should  be  set  aside  inasmuch  as  a  portion 
of  the  consideration  was   for  maintenance, 
On  a  perusal  of  the  case  I  am  unable  to 
find  that  any  principle  was  laid    down  in 
that  case.    The  learned  Judges  found  that 
considerable     suspicion    attached     to  the 
transaction  and  in  the  circumstances  they 
set  aside  the  alienation  by  the  widow.  There 
was  no  question  of  the  maintenance  of  the 
widow  in  that  case.    A  widow  is    entitled 
to  live  by  selling  the  property  of  the  hus- 
band if  there  is  no  other  means    available 
(l\  66  Ind,   Caa.  362;    2  L.  357;  A.  I  R,  1922  Lah 
317. 

(2)  40  Ind.  Gas.  269. 

(3)  26  Ind.  Cas.  418;  1  L.  W.  877. 

(4)  50  Ind.  Cas.  74;  41  A.  338, 17  A.  L.  J.  239. 

(5;  10  Ind,  Cas.  676;  9  M.  L,  T,  307;  (1911)  1  M.  W. 
fl,  267, 


(9210.1926] 
--------------    As  I  have  already  ob- 

served, no  widow  is  bound  to  starve  herself 
or  die  in  order  to  benefit  the  reversioners. 
Such  a  proposition  would  be  monstrous  and 
opposed  to  all  principles  of  Hindu  Law. 
Dhondhia  v.  Hekayat  Pandey  (6)  and 
Paparayudu  v.  Rattamma  (7)  do  not  apply 
to  the  facts  of  the  present  case.  No  doubt, 
if  the  sale  is  not  found  to  be  a  bona  fide 
sale,  the  plaintiff  would  be  entitled  to  have 
it  set  aside.  But  in  this  case  I  am  quite 
satisfied  that  the  proper  decree  would  be  to 
allow  the  sale  to  stand  inasmuch  as  the 
transaction  was  a  bona  fide  one  and  the 
consideration  was  for  purposes  which  could 
bind  the  reversioners. 

I  allow  the  appeal  and  dismiss  the  plaint- 
iff s  suit  with  costs  throughout. 

The  memorandum  of  objections  is  dis- 


missed.   No  costs. 
v-  N-  v» 

N.  H. 

(6)  49Iud.  Cas.  811. 

»/2.  17. 


Appeal  allowed. 


M- 


LAHORE  HIGH  COURT, 

SECOND  CIVIL  APPEAL  No.  1332  OF  1925 

January  2,  1926. 

Present ;— Mr.  Justice  Martineau 
KALA  KHAN  alias  KALU— PLAINTIFF- 
APPELLANT 

versus 

NATHU  KHAN  AND  OTHERS— DEFENDANTS 
— RESPONDENTS. 

,  St™P  Aft  (H  of  1S99),  3.  2  (21)-Letter  empowering 
to  sell  land- Power-of -attorney. 

A  letter  empowering  a  person  to  sell  the  land  is 
not  a  power-of-attorney  as  defined  in  the  Stamp  Act 
unless  it  empowers  him  to  sell  the  land  m  the  name 
of  the  writei  of  the  letter. 

Second  appeal  from  a  decree  of  the 
District  Judge,  Rawalpindi,  dated  the  31st 
January  1925,  affirming  that  of  the  Subordi- 
nate Judge,  Second  Class,  Rawalpindi, 
dated  the  26th  November  1923. 

LalaGolnnd  Ram  Khanna,  for  the  Appel- 
lant 

Mr,  Shamair  Chand,  for  the  Respondents. 
JUDGMENT.— The  plaintiff  Kala  Khan 
and   his  brother  Nathu  Khan   defendant 
No,  1  jointly  owned  khasra  No.  1258-1.  On 
the  9th  February  1918  Nathu  Khan  sold  a 
portion  of  that   kha§ra  number  to  Dalbir 
Qhand   and  Sundar  Dass  aud  on  the  13th 


PCRAN  OHAND  to. 


[52  I.  0. 192«] 

February  he  sold  the  remainder  to  Ishar 
Das  and  Harnam  Das  defendants  Nos.  2  and 
3.  Defendants  Nos.  4,  6,  8  and  10  brought 
seperate  suits  for  pre-emption  in  respect 
of  the  latter  sale  and  obtained  decrees,  and 
afterwards  transferred  their  shares  to  defend- 
ants Nos.  5,  7  and  9.  The  plain  tiff  sues  for 
possession  of  his  half  share  of  the  land 
sold  by  his  brother  to  defendants  Nos.  2 
and  3,  contending  that  his  brother  had  no 
right  to  sell  it,  and  he  also  claims  the  other 
half  by  right  of  pre-emption. 

The  suit  has  been  dismissed,  the  Courts 
below  having  agreed  in  finding  that  it  has 
been  brought  in  collusion  with  Ishar  Das 
defendant  No.  2,  and  that  the  plaintiff  had, 
by  a  letter  written  from  Basra  on  the  29th 
September  1917,  authorised  Nathu  Khan 
to  sell  the  former's  half  share  in  the  land. 
The  plaintiff  has  preferred  a  second  appeal, 
contending  that  his  consent  to  the  sale  is 
not  legally  proved, 

The  letter  from  the  plaintiff  authorising 
Nathu  Khan  to  sell  the  land,  though  not 
forthcoming  is  referred  to  in  the  two  sale- 
deeds  executed  by  the  latter,  and  Sundar 
Das  proves  its  existence  at  the  time  when 
Nathu  Khan  executed  the  sale-deed  in 
favour  of  Dalbir  Chand  and  himself.  Hira 
Nand,  through  whom  the  sales  by  Nathu 
Khan  were  effected,  also  proves  the  exist- 
ence of  the  letter,  and  says  that  he  made  it 
over  to  some  of  the  vendees,  though  he 
cannot  say  to  which.  As  the  letter  is  now 
supprepsed  by  the  vendees,  into  whose 
possession  it  came,  and  the  suit  has  been 
found  to  have  been  brought  in  collusion 
with  them,  I  think  that  it  is  fair  to  presume 
that  it  was  the  plaintiff  who  wrote  the 
letter, 

It  is  argued  for  the  plaintiff  that  the 
letter  was  a  power- of- attorney  as  defined 
ins.  2  (21)  of  the  Stamp  Act,  and  that  as 
it  was  unstamped  it  would  have  been 
inadmissible  in  evidence,  and,  therefore, 
secondary  evidence  of  its  contents  is  also 
inadmissible.  There  is,  however,  nothing 
to  show  thai  Nathu  Khan  was  empowered 
by  the  letter  to  sell  the  land  in  "  the  plaint- 
iff's name",  and  if  no  such  power  was 
given  to  him  the  letter,  though  it  gave 
Nathu  Khan  authority  to  sell  the  land, 
would  not  fall  within  the  definition  of 
"power-of-attorney"  contained  in  the  Stamp 
Act.  Another  point  taken  is  that  the  letter 
would  not  debar  the  plaintiff  from  repudiat- 
ing the  sale  when  it  is  not  shown  that  he 
Agreed  to  any  particular  price,  but  there 


991 


is  no  force  in  this  argument,  as  in  giving 
a  general  authority  to  Nathu  Khan  to  sell 
his  share  he  must  be  taken  to  have  left  it 
to  Nathu  Khan  to  settle  the  price,  and  it 
may  be  observed  that  there  has  been  no 
allegation  that  the  price  for  which  the  land 
was  sold  was  not  a  fair  price. 

I  agree,  therefore,  with  the  Courts  below 
that  the  plaintiff  is  precluded  from  suing 
to  recover  his  share  of  the  land  by  the 
fact  of  his  having  authorised  his  brother 
to  sell  it. 

As  regards  the  claim  for  pre-emption  the 
fact'appears  to  be  that  the  plaintiff  acquiesc- 
ed in  the  sale  of  Nathu  Khan's  share,  be- 
sides authorising  the  sale  of  his  own  share. 
Hira  Nand  has  stated  that  he  suggested  to 
Nathu  Khan  that  he  should  obtain  the 
plaintiff's  written  consent  to  the  sale  of  his 
(plaintiff's)  share,  as  without  it  no  one 
would  be  willing  to  buy  the  land.  Evidently 
Nathu  Khan  must  have  written  to  his 
brother,  telling  him  that  he  proposed  to 
sell  the  land,  and  asking  for  his  authority 
to  sell  his  (plaintiff's)  share,  and  it  was  in 
reply  to  such  a  letter  that  the  plaintiff 
wrote  the  letter  which  has  been  referred  to 
above.  It  does  not  stand  to  reason  that  the 
plaintiff,  while  consenting  to  the  sale  of  his 
own  half  share,  reserved  his  right  to  pre- 
empt his  brother's  half. 

The  appeal  fails  and  is  dismissed  with 
costs. 

R.  L.  Appeal  dismissed. 


LAHORE  HIGH  COURT. 

FIRST  CIVIL  APPEAL  No.  1228  OF  1925. 

December  18,  1925. 
Present: — Mr.  Justice  Addison. 
PURAN  CHAND  AMD  OTHERS- 
APPELLANTS 

versus 
EMPEROR  THROUGH  SHEO  CHAND 

AND  OTHERS — RESPONDENTS. 

Court  Fees  Act  (VII  of  1870),  s  8,  Sch  II,  Art  It 
(iv)— Appeal  from  award  under  Land  Acquisition 
Act— Court- fee  payable — Appeal— Deficiency  in  Court- 
•fee  not  'made  good — Necjhgence — Limitation,  effect  on — 
Bona  fides,  meaning  of. 

An  appeal  from  an  award  under  the  Land  Acquisi- 
tion Act  is  governed  for  purposes  of  Court-fee  by  s.  8 
and  not  by  Art  17  (iv)  of  Sch  II  to  the  Court  Fees  Act, 
as  the  former,  being  a  special  provision  relating  to  tha 
awards  of  compensation  under  the  Land  Acquisition 
Act  overrides  the  general  provisions  of  the  latter,  [p, 
992,  col,  2.J 


*ORAN  OHAND  V.  BMPBROR, 


Kasturi  Chetti  v.  Deputy  Collector,  Bellary,  21  M. 
260;  7  Ind,  Dec.  (N.  s.)  546,  referred  to. 

Where  no  compensation  lias  been  allowed  by  an 
award  under  the  Land  Acquisition  Act,  Court-fee 
payable  on  the  memorandum  of  appeal  is  the  ad 
valorem  Court-fee  on  the  amount  claimed,  [p.  992, 
Col.  2] 

"Where  a  memorandum  of  appeal  does  not  bear  the 
full  Court-fee  and  the  deficiency  ig  not  made  good  in 
time  owing  to  the  gross  negligence  of  the  appellant  or 
his  Counsel  the  appeal  becomes  time-barred,  [p,  993, 
col.  1] 

A  bona  fide  act  is  one  done  with  due  caie  and 
attention  [ibid  ] 

Reeal  Singh  v.  Shadi,  43  Ind  Gas,  317;  95  P  K. 
1017;  174  P.  W.  R,  1917,  13  P.  L.  K.  1018,  icferied 
to. 

First  appeal  from  an  order  of  the 
District  Judge,  Rohtak  at  Karnal,  dated  the 
22nd  January  1925. 

Mr.  Sagar  Chand,  for  Mr.  F.  Byrne  and 
Lala  Nanwan  Mai,  for  the  Appellant. 

Mr.  Shamair  Chand,  for  the  Respond- 
ents. 

JUDGMENT.— 1482  square  yards  of 
land  in  village  Dhigal  were  acquired  under 
the  Land  Acquisition  Actfora  school  and  the 
Collector  assessed  the  value  atRs.  2,130-6-0. 
There  are  four  Panas  or  sub-divisions  in 
the  village.  Two  of  them  did  not  claim 
any  part  of  the  land  to  be  theirs.  The  pro- 
prietors of  Chauth  sub-division  claimed  the 
whole  area  to  be  theirs,  while  those  of 
Malian  sub-division  claimed  that  792  square 
yards  of  the  whole  area  of  1482  square 
yards  were  theirs.  The  Collector  under 
8.  30  of  the  Land  Acquisition  Act  referred 
.the  dispute  for  the  decision  of  the  District 
Court  as  it  was  a  dispute  uas  to  the  persons 
to  whom  any  part  of  the  compensation 
money  was  payable''.  The  Collector  could 
have  himself  decided  the  question,  leaving 
the  aggrieved  party  to  apply  to  him  for  a 
reference  to  the  Court  under  s.  18  of  the 
Act.  This,  however,  makes  no  difference. 
The  District  Court  held  that  ThulaLakhmian 
of  Pana  Chauth  was  entitled  to  the 
entire  compensation  as  the  land  belonged 
exclusively  to  it.  It  accordingly  awarded 
the  full  sum  of  Rs.  2,130-6  to  be  paid  to  it, 
and*  it  was  stated  at  the  bar  that  it  has  in 
fact  been  paid.  Nothing  was  awarded  to 
the  applicants.  On  the  22nd  April  the 
appellants  through  Counsel  filed  thif  appeal 
against  the  above  decision  on  a  four-rupee 
stamp.  He  was  asked  by  the  office  the 
same  day  as  to  how  a  Court-fee  of  Re.  4 
only  had  "been  paid.  On  the  4th  May  he 
re-filed  the  appeal,  stating  that  the  Court- 
fee  was  correct  as  it  was  a  paiscellapeous 
appeal,  That  very  d&y,  his  attention  was 


[9£  I.  0, 1926J 

drawn  by  the  office  to  s.  8  of  the  Court  Fees 
Act  and  he  was  directed  to  pay  ad  valorem 
Court-fee  by  4  p,  M.  'the  next  day,  apparent- 
ly as  the  period  of  limitation  expired  then. 
On  the  5th  May  he  asked  that  the  time 
should  be  extended  to  him  as  he  had  to  get 
the  Additional  Court-fees  from  his  clients. 
He  was  told  on  the  6th  May  that  time  could 
not  be  extended  to  him  beyond  the  period 
of  limitation.  Then  on  the  12th  May  he 
affixed  a  Court-fee  stamp  of  Rs.  10  on  the 
ground  that  the  appeal  fell  under  Art.  17 
(tv)of  the  Second  Schedule  of  the  CourtFees 
Act  and  not  under  cl.  (8)  of  the  Court  Fees 
Act.  The  appeal  was  admitted  to  a  hearing 
on  the  llth  June  subject  to  any  question 
which  might  be  raised  relating  to  the  Court- 
fee  payable  and  to  limitation. 

Counsel  for  the  respondents  raised  a  pio- 
liminary  objection  that  the  appeal  is  barred 
by  limitation.  It  is  quite  clear  that  the 
appellants  are  claiming  in  appeal  792/14S2 
of  Rs.  2,130  6-0,  on  theground  that  they  owned 
792  squares  yards  out  of  1482  square  yards 
acquired  and  are  entitled  to  the  compensa- 
tion for  that  area.  This  sum  can  be  ac- 
curately calculated  and  comes  to  be  a  little 
more  than  half  of  Rs.  2,130  6-0.  It  cannot, 
therefore,  be  said  that  the  appeal  is  incap- 
able of  valuation  (Sch.  II,  Art.  17  (iv)  of  the 
Limitation  Act).  It  also  does  not  fall  under 
Art.  17  (ti>)  as  an  appeal  to  set  aside  an  award 
because  s.  8  of  the  Court  Fees  Act  being  a 
special  provision,  relatingto  the  awards  of 
compensation  under  the  Land  Acquisition 
Act,  overrides  the  general  provisions  of 
Sch.  II,  Art.  17  (iv)  [see  Kasturi  Chetti  v. 
Deputy  Collector,  Bellary  (1).  Besides,  the 
words  of  s,  8  of  the  Court  Fees  Act  are  veiy 
wide.  They  areas  follows; — 

"The  amount  of  fee  payable  under  this 
Act  on  memorandum  of  appeal  against  an 
order  relating  to  compensation  under  any 
Act  for  the  time  being  in  force  for  the 
acquisition  of  land  for  public  purposes 
shall  be  computed  according  to  the  differ- 
ence between  the  amount  awarded  and  the 
amount  claimed  by  the  appellant." 

The  present  appeal  is  against  an  order 
awarding  all  the  compensation  to  the  re- 
spondents whereas  the  appellants  claim  a 
definite  sum  out  of  the  compensation.  That 
is,  nothing  was  awarded  to  them  wfcile  they 
claim  paore  than  h&lf.  Court-fees  were, 
therefore,  payable  on  the  sum  they  claim 
should  have  been  awarded  to  them.  The 

(1)  21  M.  269;  7  Ind.  Dec,  (N,  s.)  546, 


0.  I.  P.  RAILWAY  t>.  K0NJ  BflflAfcl  LAL. 


matter  is  beyond  dispute  and  though  the 
appellants1  Counsel  was  at  once  put  upon 
his  guard  by  the  office,  still  the  necessary 
Court-fees  were  not  put  in  within  th$  period 
of  limitation  and  when  extra  Court-fees 
were  put  in  after  the  peiiod  of  limitation, 
the  provisions  of  s  8  were  still  not  followed 
though  the  section  had  been  quoted  by  the 
office.  It  13  further  clear  from  the  order  of 
the  Judges  admitting  the  appeal  in  June 
that  this  was  a  matter  that  was  bound  to  arise 
and  still  Court-fees  have  up  till  the  present 

t  foeeii  filed.  Even  if, therefore,  RamjiLal, 
4' of  the  appellants,  thought  a  Couit- 
Rs.  4  only  was  necessary,  there  has 
obviously  been  gross  negligence  both  on  the 
part  of  the  appellants  and  of  Counsel  in  not 
filing  the  Court-fees  either  at  once  on  the 
office  objection  or  when  the  appeal  was  ad- 
mitted to  a  hearing.  la  my  judgment  they 
are  not  entitled  to  any  extension  of  time 
after  these  dates.  The  law  13  so  clear  that 
no  mistake  should  have  been  made  in  the 
first  instance  and  for  this  reason  also  time 
cannot  be  extended,  A  bonajide  net  is  one 
done  with  duo  oira  and  attention  [llesal 
Singh  v.  S/iadi  (2)] 

I,  therefore,  hold  that  the  appeal  is  bar- 
red by  limitation  as  up  to  date  the  proper 
Court-fees  have  not  been  put  in  and  no  suffi- 
cient cause  h$s  been  shown  as  to  why  this 
has  not  been  done.  I  accordingly  dismiss 
it  with  costs. 

R.  L.  Appeal  dismissed, 

(2)  43  lad  Gas  317,  95  P,  K  1917,  171  P  W  R 
1917,  13  P  L  R.  1918 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No,  150  OF  1925. 

January  5,  1926. 

Present:—  Mr.  Justice  Daniels 

O.  L  P.  RAILWAY  AND  ANOTHER— 

PETITIONERS 

versus 
KUNJ BEHARI  LAL  8HARMA-- 

OPPOSITE  PARTY. 

Carnage  of  goods—Railway  Company— Risk  Note 
Form.  H,  liability  under  -Loss  of  gonds  not  urg&d  — 
Protection  under  Risk  Note—Onus  of  loss  Revision- 
Delay  in  filing  petition 

Tha  only  loss  for  which  a  Railway  Company  can  be 
held  accoun table  under  Risk  Note  Fo,in  H,  even  in  rase 
of  wilful  negligence,  mubt  be  loss  of  a  complete  con- 
signment or  of  a  complete  package  or  packages  form- 
ing part  of  such  consignment. 

But  where  a  plaintiff  doss  not  come  into  Court  on 
the  ground  of  loss,  destruction  or  deterioration,  the 
Railway  Company  must  prove  that  the  goods 

63 


been    lost   or  destroyed  or   have  deteriorated  before 
they  can  claim  the  protection  of  the  Risk  Note. 

A  delay  of  really  seven  months  in  uliug  a  revision 
application  is  m  i  self  a  sufficient  ground  for  declining 
to  accept  it 

Civil  revision  from  an  order  of  the  Judge 
of  the  Court  of  8mall  Causes  at  Kasgauj, 
dated  the  9th  April  1925.  '  '- 

Mr  Ladli'Prasad  Zutshi,  for  the  Appli- 
cants. 

Mr.  Panna  Lai,  for  the  Opposite  Party. 

JUDGMENT.— Tina  is  a  revision 
against  a  Small  Cause  Court  decree  award* 
ing  compensation  for  short  delivery  of  betel- 
leaves  consigned  by  the  G  I  P.  and  B.  B. 
*and  C.  I.  Raihva}'  Companies.  The  appli- 
cants are  quite  right  in  asserting  that  the 
only  loss  for  which  the  Railway  can  be 
held  accountable  under  Risk  Note  H  which 
applies  to  this  case,  tven  in  case  of  wilful 
negbgence  must  be  loss  of  a  complete  con- 
signment or  of  a  c  unplete  package  or  pack- 
ages forming  part  of  such  consignment. 
Tne  deciee  may,  however,  be  supported  on 
another  ground  The  plaintiff  did  not  come 
into  Coui  t  alleging  loss.  He  merely  alleged 
that  so  much  betel  leaves  had  been  booked 
by  the  Railway  and  that  the  full  amount 
had  not  been  delivered.  Theie  is  along4 
series  of  cases  commencing  with  Ghelabhai 
Punsi  v.  East  Indian  Railway  Co.  (1)  and 
including  several  cases  of  this  Court,  e 
East  Indian  Railway  Co  v.  Firm 
Lal-Tirkhamal  (2)  and  East  hidian  Rail- 
way Co.  v  Firm  Gopi  Knshna-Kashi 
Prasad  (3)  as  Avell  as  East  Indian  Railway 
Co  v.  Jagpat  Singh  (4)  which  lay  down  that 
where  a  plaintiff  does  not  come  into  Court 
on  the  ground  of  loss,  destruction  or  deterio- 
ration, the  Railway  Company  must  prove 
that  the  goods  have  been  lost 'or  destroyed, 
or  have  deteriorated  before  they  can  claim 
the  protection  of  the  Risk  Note.  I  may  add 
that  the  judgment  complained  of  was  de- 
livered on  9th  April  and  that  this  revision 
was  not  filed  until  5th  November.  The 
delay  of  nearly  seven  months  in  filing  the 
application  would  in  itself  have  been  a 
sufficient  ground  for  declining  to  accept  it. 

For  the  reasons  already  given  I  dismiss 
the  application  with  costs. 

s.  s.  Application  dismissed. 

N  H. 

(1)  63Ind  Gas   241,  45  B  1201,  23  Bom  L.  R  525. 

(2)  73  Ind,  Gas  S86,  45  A.  530,  21  A.  L.  J  438;  90, 
&A.L  U  531,  A.  I.  R  11)24  All  7. 

(3)  77  Ind  Cas,  1010;  45  A.  534,  21  A.  L.  J.  448;  A. 
I  R  1924  All.  8 

(4)  79  Ind    Oas.  126,  51  a  615;    28  Q>  W.  N,  1001; 
A.  I,  R,  1924  Oal  725. 


994 


LAL 


LAHORE  HIGH  COURT, 

LETTERS  PATENT  APPEAR  No.  148 

OP  1924. 

November  25, 1925. 

f  resent;— Sir  Shadi  Lai,  KT.,  Chief 

Justice,  and  Mr.  Justice  LeRossignol. 

CHlRANJI  LAL  AND  OTHERS — DBFENPANTS 

— APPELLANTS 

versus 

SHIB  LAL  AND  ANOTHER— PLAINTIFFS 

AND  MATU  KAM  AND  OTHERS — 

DEFENDANTS— RESPONDENTS. 

Limitation  Act  (IX  of  W08),  s.  2$,  Sch,  I,  Art  36— 
Suit  for  compensation  for  damage  caused  by  defendants 
action— Limitation — Continuing  wrong— Date,  of 
malfeasance. 

Limitation  for  a  suit  to  recover  compensation 
for  damage  caused  to  the  plaintiffs'  building  by 
the  action  of  the  defendants  in  closing  up  ceitam 
drains  which  emitted  -water  from  the  plaintiffs'  build- 
ing on  to  the  defendants*  premises  is  two  years  from 
the  date  of  the  damage. 

The  action  of  the  defendants  in  closing  up  the  drains 
and  thereby  causing  damage  to  plaintiffs1  building  is 
a  continuing  wrong  as  contemplated  by  s.  23,  Limita- 
tion Act. 

In  cases  of  continuing  wrongs  the  date  of  the 
damage  is  the  date  of  the  malfeasance  within  the 
meaning  of  Art,  36  of  Sch.  I  to  the  Limitation  Act. 

Letters  Patent  Appeal  against  the  judg- 
ment and  decree  of  Mr.  Justice  Broadway, 
passed  in  Civil  Appeal  No.  2586  of 
1923,  on  the  5th  March  1924,  affirming  that 
of  the  District  Judge,  Karnal,  dated  the 
9th  August  1923,  (which  jeversed  that  of 
the  Munsif,  First  Class,  Jhajjar,  District 
Kohtak,  dated  the  28th  August  1922). 

Messrs.  Shamair  Chand  and  Sagar  Chand, 
for  the  Appellants. 

Mr.  K.  J.  ttustamji,  for  the  Respondents. 

JUDGMENT.— This  appeal  arises  out 
9$  an  action  to  Recover  Es.  400  as  coinpensa- 
tion  for  damage  caused  to  the  plaintiffs1 
building  by  the  action  of  the  defendants  in 
closing  up  certain  drains  which  emitted 
water  from  the  plaintiffs1  building  on  to 
the  defendants'  premises;  and  the  sole  ques- 
tion for  decision  is  whether  the  suit  is 
within  time. 

,  The  alleged  damage  is  said  to  have  occur- 
red between  August  1918  and  September 
1920,  but  obstruction  took  place  in  Septem- 
ber 1917  and  the  suit  was  instituted  on  the 
21st  May  1921.  The  District  Judge  assess- 
ed the  damage  at  Rs.  60  and  the  decree  was 
affirmed  by  this  Court  in  single  Bench. 

A  preliminary  objection  was  raised  that 
the  suit  was  a  small  cause  and  the  learned 
Judge  in  Chambers  had  no  jurisdiction.  But 
adjudication  on  this  point  was  not  prayed 


V.  SHIB  LAt,  [&2  I.  0.  1925] 

for  from  the  Court  below  and  it  cannot  be 
heard  now  for  the  first  time. 

For  the  appellants  it  is  urged  that  s.  23 
of  the  Limitation  Act  has  been  wrongly 
applied  to  the  facts  of  this  case  as  the 
wrong  was  not  a  continuing  wrong,  but  we 
have  no  hesitation  in  holding  that  the  wrong 
was  a  continuing  wrong  and  that  the  pro- 
visions of  s.  23  of  the  Limitation  Act  have 
been  properly  applied. 

On  the  next  point,  however,  we  think  the 
appeal  must  succeed.  It  is  urged  that  the 
limitation  for  the  suit  is  two  years  under 
Art,  36  of  the  First  Schedule  to  the  Limita- 
tion Act.  On  the  allegation  in  the  plaint 
at  any  rate  a  portion  of  the  damage  occur- 
red prior  to  the  21st  of  May  1919  and  there 
is  no  evidence  to  show  how  much  damage 
was  caused  after  that  date  and  within  two 
years  of  suit. 

For  the  respondents  it  is  contended  that 
Art.  36  of  the  Schedule  to  the  Limitation  Act 
does  not  apply  and  that  Art.  120  furnishes 
the  proper  period  of  limitation.  Article 
120  is,  however,  a  residuary  Article  and 
applies  only  when  no  other  specific  Article 
governs  the  case.  Clearly  the  act  of  the 
defendants  in  obstructing  the  drains  in 
defiance  of  an  injunction  obtained  by  the 
plaintiffs  was  an  act  of  malfeasance,  Article 
36  covers  the  facts  of  this  case,  and  the 
effect  of  that  Article  read  with  s.  23  of  the 
Act  is,  that  the  suit  must  be  brought^ with- 
in two  years  from  the  date  when  the  mal- 
feasance takes  place  but  that  inasmuch  as 
the  offence  is  a  contindiag  one,  the  date  of 
the  damage  shall  be  deemed  to  be  the  date 
of  the  malfeasance. 

In  the  absence  of  evidence  as  to  the 
amount  of  damage  which  occurred  within 
two  years  of  suit  the  suit  must  fail.  We 
accordingly  accept  the  appeal  and  dismiss 
the  suit,  but  in  the  special  circumstances  of 
the  case  direct  that  parties  shall  bear  their 
own  costs  throughout. 


R  L. 


Appeal  accepted. 


[92  L  0.  1928]  BAI-DBO  KUBMI  0.  KASHI 

ALLAHABAD  HIGH  COURT. 

MISCELLANEOUS  CASE  No.  507  OP  1925. 

January  6, 1926. 
Present: — Mr.  Justice  Dalai  and 

Mr.  Justice  Boys. 
BALDEO  KURMI— DEFENDANT— APPLICANT 


versus 

KASHI  CHAMAR  AND  ANOTHER—PLAINTIFF 
— OPPOSITE  PARTIES*. 

Agra  Tenancy  Act  (If  of  1901),  s  198— Tenant 
and  sub-tenant— Ejectment  suit — Sub- tenant  claiming 
to  be  tenant  himself — Proprietary  title,  question  of> 
whether  involved — Appeal,  forum  of 

In  a  suit  by  an  occupancy  tenant  to  eject  a  sub- 
tenant, where  the  latter  alleges  that  he  is  himself  the 
tenant-in-chief  and  is  holding  directly  under  the  pro- 
prietor, no  question  of  proprietary  title  is  involved 
within  s.  198  of  the  Agra  Tenancy  Act,  and  an  appeal 
against  the  decision  of  the  Assistant  Collector  lies  to 
the  Revenue  Court  and  not  to  the  Civil  Court.  Lp. 
996,  col  1.] 

Niranjan  v  Gajadhar,  30  A.  133,  5  A.  L.  J,  71,  A. 
W  N  (1908)  45,  followed 

Har  Prasad  v  Tajammul  Husain,  44  Ind.  Gas.  720, 
16  A  L  J  239,  not  followed. 

The  words  "land-holder11  and  "tenant"  do  not  in 
«  198  (1)  of  the  Agra  Tenancy  Act  embrace  "tenant11 
and  his  "sub-tenant  "  [p  999,  col  1  ] 

Per  Boys,  J  —There  is  nothing  in  the  heading  pre- 
ceding s  198  of  the  Agra  Tenancy  Act  or  in  s  198 
(1)  to  indicate  that  in  a  case  coming  within  a  198  (1) 
a  question  of  proprietary  title  is  necessarily  m  issue. 
Bather  are  all  the  indications  to  the  contrary  The 
answer  to  the  question  whether  a  matter  of  propiietary 
title  is  in  issue  cannot  be  based  on  any  conclusion 
that  the  case  is  or  is  not  within  s  198  but  must  be 
answered  independently  of  s  198  [p  1000,  col  1  ] 

Reference  under  s.  195  of  the  Agra  Ten- 
ancy Act  made  by  the  Collector,  Basti. 

Mr,  Harnandan    Prasad    (with  him  Mr. 
Sankar  Saran),  for  the  Opposite  Parties. 
JUDGMENT. 

Dalai,  J. — This  is  a  Reference  t#  this 
Court  made  by  the  Collector  of  Basti  under 
B.  195  of  the  Tenancy  Act,  because  he  doubted 
whether  the  appeal  pending  before  him  in 
a  particular  matter  should  be  filed  in  a  Civil 
or  a  Revenue  Court  One  Kashi  Chamar 
sued  the  defendant,  Baldeo  Kurmi,  for  eject- 
ment; and  one  of  the  grounds  of  defence 
was  that  the  defendant  cultivated  the  land 
in  dispute  as  tefcant  of  the  Raja  of  Bansi 
and  paid  rent  to  him.  The  plaintiff's  case  was 
that  he  was  an  occupancy  tenant  of  the  land 
and  Baldeo  Kurmi  was  his  sub  tenant.  The 
Assistant  Collector  decided  that  Kashi  was 
occupancy  tenant  of  the  land  and  that  Baldeo 
was  his  sub-tenant, 

The  learned  Collector  was  of  opinion  that 
the  appeal  would  lie  to  a  Civil  Court  if 
the  principle  of  the  ruling  in  the  case  of 
Har  Prasad  v.  Tajammul  Hu$sain  (1)  were 

(1)  44  lad,  Cas,  780;  16A.L.J.  I*B. 


.  ^ 

followed.  The  Board  of  Revenue  has*  dis- 
sented from  that  ruling  in  Kundaii  v, 
Jawahir  (2). 

In  my  opinion,  the  facts  of  this  case  ao 
not  call  for  a  decision  as  to  which  of  the 
views  in  the  two  judgments  is  correct.  The 
question  before  me  is  covered  by  authority. 
In  Niranjan  v.  Gajadhar  (3)  one  Niranjan 
applied  as  owner  of  a  fixed  rate  holding 
for  ejectment  of  Gajadhar  on  the  grotind 
that  Gajadhar  was  his  sub-tenant.  Th6 
Assistant  Collector  dismissed  the  suit.  The 
plaintiff  appealed  to  the  District  Judge  who 
made  a  reference  to  this  Court,  as  he  was 
not  in  agreement  with  a  Single  Judge  deci- 
sion of  this  Court  in  Chhittar  Singh  v.  Rltp 
Singh  (4).  A  Bench  of  this  Court  held  that 
the  appeal  lay  to  the  Revenue  Court  aiid 
not  to  the  Civil  Court. 

It  was  argued  here  that  the  question  i& 
dispute  between  the  tenant  and  sub-tenant 
is  one  of  proprietary  title  in  accordant^ 
with  the  provisions  of  a.  198  of  the  Tenancy 
Act.  The  heading  of  that  section  in  Ch.  XI  v 
of  the  Tenancy  Act  is  "Questions  of  pro- 
prietary title  in  Revenue  Court."  Section 
198  lays  down  "When  in  any  suit  against  a 
tenant  under  this  Act,  the  defendant  pleads 
thai  the  relation  of  land-holder  and  tenarit 
does  not  exist  between  the  plaintiff  and 
himself  on  the  ground  that  he  actually  afta 
in  good  faith  pays  the  rent  of  his  holdirig 
to  some  third  person,  the  question  of  such 
payment  of  the  rent  to  such  third  per- 
son shall  be  inquired  into,  and,  if  the  ques- 
tion is  decided  in  favour  of  the  defendant, 
the  suit  shall  be  dismissed."  The  second 
clause  of  this  section  lays  down  "The  dedi- 
sion  of  the  Court  on  such  question  shall  n'dt 
affect  the  right  of  any  person  entitled  to 
the  rent  of  the  holding  to  establish  'Hfs 
title  by  suit  in  the  Civil  Court."  It  tofa 
contended  on  behalf  of  the  plaintiff-respond- 
ent that,  according  to  the  terms  of  the  fifst 
clause  of  this  section,  the  question  as  tb 
whether  Kashi  actually  and  in  good  faith 
paid  the  rent  of  his  holding  to  the'Raja^  Of 
Bansi  was  a  question  of  proprietary  title 
and  that  had  to  be  decided  in  the  appeal 
pending  before  the  Collector  of  Basti.  In 
my  opinion,  land-holder  and  tenant  do  Dtot 
mean  tenant  and  sub-tenant,  as  they  woulji 
have  to  mean  in  order  to  support  the  Argu- 
ment of  the  plaintiff's  learned  Counsel.  Sub- 

(2)  (1019)  Unpublished  Decisions  of  the  Board,  V6l 


«Sj  5  A.  L.  J.  71;  A  W.  N.  (1&Q8)  45. 
A.  W,  N.  (1906)  W\  3  A,  L.  J.  603, 


Bitted  KtkMl  t>;  Kiflfil  taiMi*.  [92  L  0. 1926] 

Separately  defined  in    a.    4  of    ing  made  to  the  Raja  of  Bansi  in  good  faith. 


tenant  id  Separately  defined  in  a. 
the  Tenancy  Act  and  the  term  tenant'  is  not 
defined  as  including  a  sub-tenant.  A  sub- 
tenant 13  not  a  class  of  tenants  enumerated 
in  a.  6;  so  a  sub-tenant  cannot  be  called  non- 
occupancy  tenant  in  s.  19  of  the  Act.  A 
discussion  of  the  terms  of  s.  198  of  the  Ten- 
ancy Act,  therefore,  does  not  arise  here  and 
I  am  not  called  upon  to  determine  whether 
the  Bench  decision  in  the  case  of  Niranjan 
may  be  supported  or  not. 

A  dispute  between  a  tenant  and  a  sub- 
tenant raises  no  question  of  proprietary 
title.  The'  suit  being  one  for  ejectment,  the 
appeal  would  go  out  of  the  cognizance  of 
the  Revenue  Court  only  if  a  question  of  pro- 
prietary title  had  been  in  issue  in  the  Court 
of  first  instance  and  is  a  matter  in  issue  in 
the  appeal.  No  such  question  arises  here, 
so  the  jurisdiction  of  the  Revenue  Court  is 
not  ousted  as  laid  down  by  Sch.  IV,  Group 
0,  Serial  No.  29. 

Presumably  the  worda  landlord  and  ten- 
ant have  been  used  in  s,  63  to  include  tenant 
and  sub-tenant  and,  if  the  analogy  be  appli- 
ed to  s.  Ib8,  1  am  of  opinion  that  the  deci- 
sion reported  in  Har  Prasad  v.  Tajamtnitl 
Husain  (I)  is  not  correct.  The  provisions 
of  s.  198  are  to  be  read  in  contradistinction 
to  the  provisions  of  s.  191),  Tenancy  Act.  The 
decision  of  the  Revenue  Court  under  s  198 
is  not  binding  on  a  Civil  Court,  while  that 
under  s.  199  is,  The  proprietary  title  con- 
templated is  not  the  dispute  between  the 
parties  to  the  suit  but  the  one  between  the 
plaintiff  land-holder  and  the  third  person, 
to  whom  the  defendant  alleged  that  he 
.paid  rent  in  good  faith.  Such  a  dispute  over 
a  proprietary  title  was  involved  in  the  deci- 
sion of  the  question  of  payment  to  some 
one  other  than  the  plaintiff  in  good  faith. 
That  is  the  dispute  which  is  referred  to  as 
one  of  proprietary  title  in  the  heading  over 
s.  198.  The  dispute  between  the  parties  to 
the  suit  is  to  be  kept  strictly  in  the  Revenue 
Court;  otherwise  there  would  be  no  necessity 
to  permit  of  a  suit  in  the  Civil  Court.  If 
the  appeal  in  such  a  case  lay  to  the  Civil 
Court,  the  decision  of  the  Civil  Court  would 
be  binding  on  another  Civil  Court  and 
there  would  be  no  object  in  providing  a 
saving  clause,  as  is  done  in  s.  198. 

In  the  present  case  the  pleadings  and 
judgment  of  the  Trial  Court  are  wanting  in 
deflniteness.  The  defendant  probably  desir- 
ed to  raise  such  a  defence  as  is.  mentioned 
in  s.  1V)8  l?ut  no  allegation  was  made  jn  the 
Britten  statement  of  payment  of 'rent  be* 


The  Trial  Court  framed  no  issue  on  the 
question  of  the  payment  of  rent  to  a  third 
person  in  good  faith. 

If  the  case  is  taken  out  of  the  provisions 
of  s,  198,  there  can  be  no  doubt  that  no  issiie 
of  a  claim  to  a  proprietary  title  arises  be- 
tween the  parties  here. 

It  will  not  be  found  possible  to  reduce 
the  different  rulings  of  this  Court  to  one  or 
more  consistent  principles  of  law;  so  I  think 
that  every  matter  should  be  decided  on  a 
different  principle  of  law  in  accordance  with 
previous  decisions  on  similar  facts.  Mr. 
Justice  Banerji  consistently  took  the  ex- 
treme view  in  favour  of  the  Civil  Court's 
jurisdiction,  as  stated  in  Chhittar  Singh's  case 
(4)  and  was  able  to  impress  this  view  on 
Benches  of  which  he  was  a  member.  If 
this  view  had  been  consistently  adopted, 
the  different  decisions  could  have  been  re- 
ferred to  a  uniform  principle  of  law  but 
other  Judges  when  n:/A  sitting  with 
Air.  Justice  Banerji  did  not  adopt  this 
view.  Mr.  Justice  Tud  ball,  the  other  member 
of  the  Bench  in  the  case  reported  as 
Har  Prasad  v.  Tajammul  Hussain  (1)  did 
not  follow  the  principle  of  that  ruling 
to  its  logical  conclusion  in  Gurcharan  Kuar 
v  Deokinandan  Knar  (5)  when  sitting  sing- 
ly. I  agree  with  this  decision  that  when 
the  title  to  a  tenure  is  in  dispute,  the  jurisdic- 
tion of  a  Civil  Court  does  not  arise,  The 
Full  Bench  ruling,  however,  in  Bindeshwari 
v.Gokul(G)  (Chief  Justice, Banerji  and  Ryves, 
JJ.)  following  Dalchand  v.  Shamla  (7),  (Blair 
and  J3anerji,  JJ.)  and  dissenting  from  Udit 
Tiwari  v.  Balhari  Pande  (8)  (Tudball  and 
Piggott,  JJ.)  is  in  conflict  with  this  opinion. 
There  the  dispute  between  the  parties  re- 
lated to  the  possession  of  a  holding.  A 
claimed  to  be  tenant  and  alleged  that  B 
was  his  sub-tenant.  B  was  one  of  the  pro- 
prietors of  the  village  and  A  admitted  this 
fact.  A" s  contention  was  that  the  tenure 
was  his  while  B  alleged  that  he  held  it  as 
khudkasht.  In  reality  the  dispute  related 
to  a  tenure  and  not  to  any  interest  in  reve- 
nue paying  property. 

It  is  enough  for  me  to  say  that,  in  this 
present  case,  my  opinion  in  favour  of  the 
jurisdiction  of  the  Revenue  Court  is  sup* 
ported  by  rulings  in  Niranjan  v,  Gajadhar 


(5)  5$  Ind.  Gas.  760, 

(6)  S2  Ind.  Cas.964;  36  A,  1S3;  12  A.  L.  J.  851, 

(7)  2  A,  L.  J.  176;  A.  W,  N.  (1905)  46. 

(8)  21  Ind,  Cas,  460;  35  A,  521;  11  A,  fc.  J,  812, 


[92  I.  0.  1926]  BALDEO  Ktflllf  t  V. 

(3),  Daulatiav.  Hargobind  (9)  and  Gurcharan 
Kuar  v.  Deoktnandan  Kuar  (5)  and  that 
ruling')  to  the  contrary  on  similar  facts 
have  not  come  to  my  notice.  It  may  be 
conceded  that  certain  principles  enumerat- 
ed in  other  rulings,  if  pressed  to  their 
logical  conclusion,  would  not  support  the 
view. 

My  answer  to  the  reference  is  that  the 
appeal  was  correctly  filed  in  the  Revenue 
Court. 

Boys,  J.— The  plaintiff  sued  to  eject 
the  defendant  on  the  allegation  that  he, 
the  plaintiff,  was  an  occupancy  tenant  and 
that  the  defendant  was  his  sub-tenant. 
The  defendant  replied  that  the  plaintiff 
had  nothing  to  do  with  the  plot  of  land 
a,nd  that  the  defendant  himself  was  the 
tenant-in-chief.  There  is  no  dispute  as  to 
who  is  the  propiietor  of  the  plot,  the  parties 
are  agreed  on  this  point.  The  Assistant 
Collector  gave  the  plaintiff  a  decree.  Upon 
appeal  to  the  Collector,  he  has  referred  the 
matter  for  the  opinion  of  this  Court  under 
s,  195  of  the  Agra  Tenancy  Act.  He  has 
been  led  to  adopt  this  course  because  of  a 
difference,  as  suggested,  between  the  law 
as  laid  down  on  the  one  hand  in  Har  Prasad 
v.  Tajarnmul  Hussain  (1)  (Banerjiand  Tud- 
ball,  JJ  ),  and  Tullii  v  Ramraj  (10)  (Ookul 
Prasad,  J  ,)  and  on  the  other  in  Kundanv. 
Jawahir(2).  The  Collector  expresses  his  diffi- 
culty in  the  following  terms. — 'That  in  the 
first  two  cases  it  has  been  held  that  in  suits 
for  ejectment  in  which  thedefendantpleaded 
that  a  third  person  and  not  the  plaintiff 
was  the  zemindar  of  the  land  in  dispute 
and  the  Court  decided  the  question  of 
proprietary  title,  the  appeal  lay  to  the 
District  Judge,  that  in  this  suit  the  de 
fence  set  up  comes  under  s  198  and  if  these 
two  decisions  are  followed  the  Court  of  the 
Collector  has  no  jurisdiction;  that  in  the 
third  case  the  Board  declined  t:>  follow 
the  first  decision  of  the  High  Court  (the 
other  decision  of  the  High  Court  was  of 
later  date)  and  held  that  in  a  case  of  this 
nature  no  question  of  proprietary  title 
arose  and  that  the  appeal,  therefore,  lay  to 
the  Revenue  Court"  In  consequence  of 
this  difference  of  opinion  he  has  referred 
the  case. 


(9)  57  Ind  Cas.  206,  43  A.  18;    18  A  L.  J.  923,  2  U. 
P.L  R.  (A) 289. 

v  (10)  (1922)  Unpublished  Decision*  of  tfce  Board,  Vol 
VI,  page  22,  .High  Court  Section, 


KA3HT  CflAMAR. 

I  will  first  consider  the  authorities  apart 
from  any  effect  that  e.  198  may  have. 

In  Har  Prasad  v  Tajammul  Hussain  (1) 
the  defendant  claimed  to  be  lessee  of  an- 
other person  (semble  a  different  proprietor), 
and  in  Tulki  v  liamraj  (10)  the  defendant 
alleged  that  the  plot  belonged  to  another 
village  and  that  he  had  been  paying  rent 
to  the  proprietor  of  that  village.  In  both 
these  cases  it  will  be  seen  that  there  was 
in  the  back- ground  the  existence,  alleged 
by  the  defendant,  of  another  proprietor 
other  than  the  proprietor  under  whom 
plaintiff  held,  On  the  other  hand  in  the 
case  decided  by  the  Board,  Kundan  v. 
Jawakir  (2),  there  was  not  even  in  the  back- 
ground any  question  of  any  other  proprie- 
tor, both  plaintiff  and  defendant  were  in 
agreement  as  to  who  was  proprietor.  This 
latter  is  also  the  case  in  the  question  before 
us.  Similarly  in  Niranyan  v.  Gajadhar  (3) 
where  the  plaintiff  claimed  as  fixed  rate 
tenant  to  eject  the  defendant  as  his  sub- 
tenant while  the  defendant  contended  that 
he  himself  was  the  fixed  ^  rate  tenant, 
both  parties  apparently  claimed  v  to  hold 
under  the  same  piopiietor  In  that  case  a 
Bench  of  this  Court,  Kn9x  and  Aikman,  J  J., 
held  that  "when  there  is  a  question  whether 
one  party  or  the  ether  is  the  .cultivator  of 
specified  land,  no  qu^sti°n  °*  proprietary 
right  arises  "  The  earlier  contrary  vieW  ex- 
pressed in  the  judgment  of  Mr.  Justice 
Banerjiand  reported  in  Chhittar  v.  Mup 
Smqh  (4)  was  dissented  from 

We  have,  therefore,  two  cases  of  this 
Court  Har  Prasad  v  Tajammul  Husain  (1) 
(decided  by  a  Bench)  and  Tullii  v.  liantraj(iO) 
(of  a  Single  Judge),  in  boih  of  which  it  was 
held  that  a  question  of  proprietary  title  was 
iu  issue  but  in  boih  of  which  there  was  al- 
leged to  be  another  proprietor  whose  ten- 
ant the  defendant  was.  On  the  other  hand  we 
have  a  case  of  the  Board,  Kundan  v.  Jawa-* 
hir  (2)  and  a  decision  of  a  Bench  of  this 
Court  Niranjan  v.  Gajadhar  (3)  in  both  of 
which  it  was  held  that  no  question  of  pro- 
prietary title  was  in  issue  but  in  both  of 
which  there  was  no  dispute  even  in  the 
background  as  to  who  was  the  proprietor, 
both  parties  to  the  suit  admitting  the  same 
person  to  be  proprietor  The  facts  of  the 
present  case  are  the  same  as  in  the  two 
latter  cases. 

Whether  or  no  the  two  former  cases  can 
be  distinguished  from  the  two  latter  cases 
on  the  ground  that  in  the  former  there  wa& 
'  ' '  between  the  diaputaat  teuaats  as 


BALD20 

to  who  was  the  proprietor  while  in  the  two 
latter  cases  there  was  no  such  contention, 
iel  a  question  into  which  I  need  not  enter 
for  the  decision  in  the  two  former  cases 
was  not  based  on  the  fact  that  there  were 
two  proprietors  in  the  background  with 
conflicting  interests  but  on  the  ground  that 
the  cases  came  within  s.  198  and  were, 
therefore,  as  it  was  held,  necessarily  cases 
of  proprietary  title  being  in  issue.  To  s.  198 
I  shall  refer  later.  So  far  as  tthe  present 
case  is  concerned  it  is  on  all  fours  with 
Kundan  v,  Jawahir  (2)  and  Niranjan  v. 
Gajadhar  (S)  and  I  have  no  hesitation  in 
holding  that  those  cases  were  rightly  de- 
cided. A  mere  statement  of  the  cases 
there  and  in  the  present  case,  namely, 
that  the  question  who  is  the  proprietor  is 
not  in  dispute,  even  in  the  background, 
but  that  there  is  a  proprietor  admitted  by 
both  parties  to  be  proprietor,  and  that  only 
two  persons  both  of  whom  are  admittedly 
tenants  of.  one  sort  or  another  are  contend- 
ing with  each  other  itself  suggests  irresist- 
ably  that  there  is  no  question  of  the  pro- 
prietary title  in  issue, 
H(  I  turn  no\y  to  a  consideration  of  s.  198.  It 
is  frankly  admitted  by  Mr.  Harnandan  Pra- 
sad, (who,  appearing  for  the  defendant,  con- 
tends that  the  Collector  has  no  jurisdiction 
to  hear  the  appeal)  that  the  decision  in 
Niranjan  v.  Gajadhar  (3)  is  against  him. 
But  he  urges  that  in  Har  Prasad  v.  Tajam- 
mal  Hussain  (1)  and  Tulhi  v.  Ramraj  (10) 
the  Court  rightly  considered  and  relied  on 
s.  198;  that  in  Niranjan  v  Gajadhar  (3)  the 
Court  did  not  consider  s.  198;  that  it  should 
have  done  so  and  we  should  do  so  in  the 
present  case.  His  conclusion  is  two-fold: — 
(a)  that  the  present  case  comes  within  the 
terms  of  s.  198,  (b)  that  the  case  coming 
under  s.  198,  it  follows  that  a  question  of 
proprietary  title  is  in  issue  because  the 
iwading  immediately  preceding  s.  Iy8  de- 
scribes the  case  which  follow  that  head- 
ing as  being  cases  involving  a  question  of 
proprietary  title, 

I  quote  the  heading  and  the  section  in 
extenso  as  nearly  every  line  is  suggestive  of 
the  carrying  out  of  the  intention,  as  I  under- 
stand it,  of  the  Legislature. 
"Questions  of  proprietary  title  in  Revenue 
Court."1  "198(1).  When,  in  any  suit  against  a 
tenant  under  this  Act,  the  defendant  pleads 
that  the  relation  of  land-holder  and  tenant 
does  not  exist  between  the  plaintiff  and 
himself  on  the  ground  that  he  actually 
In  good  faith  pays  the  rest  of  hia 


KASHI  CHAMAR. 


[92 1,  0. 1928] 


holding  to  some  third  person,  the  question 
of  such  payment  of  the  rent  to  such  third 
person  shall  be  inquired  into,  and  if  the  ques- 
tion is  decided  in  favour  of  the  defendant, 
the  suit  shall  be  dismissed,  * 

"(2)  The  decision  of  the  Court  on  such 
question  shall  not  affect  the  right  of  any 
person  entitled  to  the  rent  of  the  holding  to 
establish  his  title  by  suit  in  the  Civil 
Court11. 

To  come  to  the  first  part  of  the  argument 
for  defendant,  that  the  present  case  comes 
within  s.  I9d, 

Is  the  plaintiff  occupancy  tenant  a  land- 
holder and  is  the  defendant  sub-tehant  a 
tenant  within  the  meaning  of  s.  198. 

Section  4  (5;  declares  "  'land-holder' 
means  the  person  to  whom,  and  'tenant* 
the  person  by  whom  rent  is  payable."  Section 
4  (7)  begins  "  'sub-tenant*  means  a  tenant 
who,  etc."  i.  e.t  it  declares  that  a  sub-tenant 
is  a  tenant  though  he  is  a  tenant  of  a  par- 
ticular kind.  The  definitions  are  wide 
enough  to  include  in  "land-holder"  and 
"tenant"an  "occupancy  tenant"  and  ^"sub- 
tenant "  respectively  "unless  there  is  some- 
thing repugnant  in  the  subject  or  context11 
(see  the  opening  words  of  s.  4).  Is  there 
anything  repugnant  in  the  subject  or  con- 
text in  s.  198?  Is  there  anything  in  s.  198 
justifying  a  restriction  of  the  scope  of  the 
words  '  land-holder"  and  "tanant"  to  "pro- 
prietor" and  "tenant-in*  chief"  ?  I  think 
there  is. 

Let  us  suppose  in  a  case  like  the  present 
the  words  to  be  wide  enough  to  include  an 
"occupancy  tenant11  A  and  his  "sub-tenant" 
B.  A  sues  to  eject  B.  B  denies  the  relation- 
ship of  landlord  and  tenant  on  the  ground 
that  he  has  been  paying  rent  in  good  faith 
to  C.  The  Court  is  to  inquire  into  the 
facts  of  the  actual  payments  and  the  good 
faith  of  the  payments  and  if  the  decision 
on  these  points  is  in  favour  of  B  the  suit 
is  to  be  dismissed.  It  will  be  noted  that 
herein  there  is  no  provision  for  the  decision 
of  the  question  of  A's  right  to  receive  thQ 
rent  though  A  may  have  ample  proof  of 
that  right.  What  remedy  then  has  A?  He 
can  appeal,  of  course,  until  he  has  exhaust- 
ed his  right  of  appeal,  but  if  the  decision 
of  the  facts  of  actual  payments  in  good 
faith  is  upheld  he  will  still  be  unable  to 
establish  his  right  to  receive  the  rents. 
Nor  can  he  file  a  separate  suit  in  the  Civij 
Court  to  establish  that  right.  Section  l(9ty 
(2)  gives  him  no  such  right;  it  gives  no 
right  at  all  to  anybody;  U  merely  declares 


BALDIO  JCPRMI  V.  KA3HI  CHAMAR. 


[95 ,1  0. 1928J 

that  any  existing  right  of  any  person  entitled 
to  the  rent  to  establish  his  title  by  stilt  in 
the  Civil  Court  shall  not  be  prej  udiced, 
If,  therefore,  s.  198  applies  and  the  suit  in 
the  Revenue  Court  is  decided  against  A  on 
the  ground  of  actual  payments  made  in 
good  faith  by  B  to  C  he  is  left  without 
remedy.  There  is,  therefore,  as  I  view  it, 
matter  in  s.  198  which  is  repugnant  to  the 
application  of  the  definitions  of 'land-holder11 
and  "tenant"  in  their  widest  sense  to  those 
words  as  uaed  in  s,  198  (1). 

If  such  a  case  as  the  present  comes  within 
s.  198  and  if  the  plaintiff,  where  the  decision 
under  s.  198  (1)  is  against  him  and  his  suit 
IB  dismissed,  has  a  remedy  by  a  suit  in  the 
Civil  Court  to  get  hia  right  to  receive  the 
rent  declared,  we  have  the  plaintiff's  right 
being  determined  in  a  Civil  Court.  But 
if  the  decision  under  s.  198  (1)  was  in 
plaintiff's  favour,  there  is  no  provision  for 
the  plaintiff  being  referred  to  a  Civil 
Court  to  establish  his  right  to  receive  the 
rent;  the  Revenue  Court  would  have  to  pro- 
ceed in  the  ordinary  course  to  the  deter- 
mination of  the  question  of  the  plaintiff's 
right.  If,  therefore,  the  argument  for  the 
defendant  were  to  be  accepted  the  very 
same  question  of  plaintiff's  right  to  rent 
would  have  to  be  determined  by  the  Civil 
Court  or  by  the  Revenue  Court  according 
as  the  decision  under  s.  198  (1)  was  adverse 
or  favourable  to  the  plaintiff.  This  is  a 
further  reason  for  holding  that  a  case 
such  as  the  present  does  not  come  within 


I  hold  then  that  the  words  •'land- 
holder" and  "tenant"  do  not  in  s.  198 
(1)  embrace  an  "occupancy-tenant11  and  his 
"subtenant/1 

It  is  consistent  with  this  view  that  the 
provision  in  s.  198  (2)  would  be  superfluous 
in  the  cases  of  an  occupancy  tenant  and 
his  sub-tenant  as  there  is  no  right  to  go 
to  the  Civil  Court  which  could  be  saved 
from  being  affected,  though  this  considera- 
tion would  not,  of  course,  suffice  by  itself 
to  show  that  sub-s.  (1)  could  not  apply  to 
an  "occupancy  tenant"  and  his  "sub-tenant1' 
as  it  would  still  be  applicable  to  other 
c'ases. 

I  turn  now  to  the  second  portion  o!  the 
argument  for  the  defendant.  Assuming, 
contrary  to  the  view  I  have  expressed,  that 
s.  198  (1)  does  apply  to  the  case  of  an 
occupancy  tenant  and  his  sub-tenant,  it  is 
then  urged  that  a  question  of  proprietary 
title  i*  in  issue  because  0900$  within  0. 199 


are  described  in  the  heading  preceding 
s  193,  as  the  argument  wouldlnterptet  tne 
heading,  as  involving  questions  of  Jiroprie* 
tary  title. 

I  have  expressed  above  the  view  that^a 
case  like  the  present  does  not  come  within 
s.  198  (1)  but  the  reasons  I  have  given  do 
not  apply  to  exclude  such  cases  as  Hcfr 
Prasad  v.  Tajammul  Husstiiii  (1)  where  thte 
plaintiff  claimed  to  be  proprietor  and  Would 
come  within  even  the  restricted  scope  of 
the  term  "land-holder.11  But  in  that  case 
Banerji  and  Tudball,  JJ.,  proceeded  to  hold 
that  the  heading  was  conclusive  prooff,  and 
it  has  been  argued  here  that  it  is  conclusive, 
that  a  question  of  proprietary  title  being  in 
issue  is  necessarily  involved  in  any  cape 
which  cornea  within  s.  198  (1), 

A  heading  of  this  nature  is  no  doubt 
meant  to  express  the  intention  of  the  Legis- 
lature, though  it  is  at  least  open  to  question 
whether  the  words  themselves  have  any 
operative  effect.  But  I  would  not  rule  out 
the  contention  of  the  applicant  on  the 
ground  that  such  a  heading  has  no  opera- 
tive effect.  I  prefer  to  consider  whether 
the  words  do  bear  the  meaning  attributed  to 
them  in  Har  Prcwad  v.  Tajammul  Hussain 
( i)  and  in  argument  here.  To  my  mind  they 
do  not. 

The  heading  does  not  say  anything  equiva- 
lent to  "the  following  are  cases  where  ques- 
tions of  proprietary  title  are  in  issue  and 
such  questions  shall  be  heard  by  the 
Revenue  Court  in  the  following  manner/1 
The  heading  is  only  equivalent  to  **let  us 
consider  the  jurisdiction  of  the  Revenue 
Court  iu  certain  cases  and  how  far  it  is  to 
proceed  in  the  direction  of  dealing  with 
proprietary  title/*  The  heading  is  not  neces- 
sarily inappropriate  to  a  caaa  in  which  pro- 
prietary title  is  not  in  issue  bttf  is  merely  in 
the  background.  Further,  the  directions 
which  follow  such  a  heading  as  we  have 
here  might,  consistently  with  the  gram- 
matical implications  in  that  heading,  be 
directions  to  the  Revenue  Court  to  deal 
with  the  question  of  proprietary  title  *>r 
directions  not  to  deal  with  it.  We  have, 
then,  next  to  consider  the  terms  of  9.  lQ$ 
to  see  which  of  these  two  courses  the  Legis- 
lature has  adopted  in  s.  198, 

Section  198  states  a  particular  case  where 
a  defendant  pleads  that  he  "in  good  faith 
pays  the  rent  of  his  holding  to  some  third 
person,"  and  that  is  the  only  plea  which 
can  bring  the  case  within  a*  199. 


1060 

The  section  next  says  that  the  question  of 
payment,  the  question  whether  he 
actually  in  good  faith  pays  the  rent  to  a 
third  person,  is  to  be  inquired  into,  and 
it  decided  in  his  favour,  the  suit,  is  to  be 
dismissed.  It  does  not  say  that  the  pro- 
prietary title  of  the  Receiver  of  the  rent 
to  receive  the  rent  is  to  be  enquired  into; 
it  expressly  refrains  from  saying  that. 

Finally,  sub-s.  (2)  declares  that  the  deci- 
sion of  such  question,  i.  e.t  as  to  the  fact 
of  actual  payment  in  good  faith  shall  not 
affect  the  right  of  any  person  claiming:  to 
be  entitled  to  the  rent  to  sue  in  the  Civil 
Court  to  establish  his  title.  The  sub-sec- 
tion does  not,  of  course,  create  any  new 
right  to  sue  in  the  Civil  ^ Court  but  merely 
makes  clear  that  any  existing  right  is  not 
affected  by  the  decision,  i.  e.,  any  person, 
including  the  third  person  who  has  been 
alleged  to  be  receiving  the  rent,  may,  if  he 
claims  to  be  proprietor  and  his  title  is  in 
peril,  sue  in  the  Civil  Court  to  establish 
his  title.  Every  line  of  the  section  is  con- 
sistent with  and  suggests  the  view  that  in 
a  case  coming  within  the  section  the  Court 
is  to  deal  with  the  factum  of  payments  of 
rent  in  good  faith  to  a  third  person  and 
not  to  deal  with  the  title  of  the  third  per- 
son to  receive  the  rent. 

That  this  view  of  the  actual  effect  of  sub- 
section (1)  of  s.  193  is  in  accord  with  the 
intention  of  the  Legislature  is  supported  by 
a  reference  to  the  history  of  the  section. 
The  earlier  s.  148  of  Act  XI [  of  1881  pro- 
vided expressly  for  the  third  person  being 
made  a  party  to  the  suit  The  present 
s.  198  omits  that  provision  and  the  omis- 
sion directly  suggests  that  his  title  to  the 
rent  is  not  to  be  inquired  into  and  this  is 
in  accord  with  the  omission  to  provide  for 
any  enquiry  into  his  title  and,  so  far  as 
s.  11J8  (1)  is  concerned,  the  express  limita- 
tion of  the  enquiry  to  the  single  question 
whether  any  payment  has  been  made  ,in 
fact  and  in  good  faith. 

I  am,  therefore,  of  opinion  that  there  is 
nothing  in  the  heading  preceding  s  198  or 
in  s.  198  (1)  to  indicate  that  in  a  case  com- 
ing within  s.  198  (1)  a  question  of  a  pro- 
prietary title  is  necessarily  in  issue.  Rather 
are  all  the  indications  to  the  contrary. 
The  answer  to  the  question  whether  a 
matter  of  proprietary  title  is  in  issue  cannot 
be  based  on  any  conclusion  that  the  case 
is  or  is  not  within  a.  198  but  must  be  an- 
swered independently  of  s.  198, 

I  have  already  stated  my  view  that,  inde- 


BALDEO  KURMI  t>,  KABH1  CHAMAR. 


[92  1.  0, 


pendently  of  s.  198,  no  question  of  proprie- 
tary title  is  in  issue  in  the  present  case,  at 
any  rate  where  there  is  no  contention  be- 
tween the  parties  as  to  who  is  proprietor. 
As  to  the  cases  Har  Prasad  v.  Tajammul 
Hussain  (1)  and  Tulhi  v.  Ramraj  (10;  my 
view  that  s.  198  and  the  heading  to  that  sec- 
tion have  no  bearing  on  the  question  whe- 
ther a  matter  of  proprietary  title  is  ill 
issue  involved  my  holding  that  in  so  far  ad 
those  cases  were  based  on  the  heading  to 
s.  198  those  decisions  cannot  be  supported. 
Whether  they  could  be  effectively  distin- 
guished from  the  present  case  on  the  ground 
that  in  them  there  was  at  any  rate  in  the 
background  difference  between  the  plaint- 
iff's allegation  and  the  defendant's  allega- 
tion as  to  who  was  proprietor,  and  whether 
cases  could  be  distinguished  in  which  the 
person  alleged  by  the  defendant  to  be  pro- 
prietor was  made  a  party  are  questions 
answers  to  which  are  not  necessary  to  the 
decision  of  the  present  case  and  into  which 
I  ought  not,  therefore,  to  enter. 

I  would  note  that  I  have  not  omitted 
to  give  the  best  consideration  in  my  power 
to  a  number  of  other  decisions  of  this 
Court  and  of  the  Board  of  Revenue  and 
I  am  not  unaware  that  there  is  a  conflict 
of  views  to  be  found  in  those  cases,  and 
that  the  view  which  I  have  expressed  could 
not  always  be  reconciled  with  one  or 
other  of  those  cases.  But,  if  I  may  say 
so,  1  have  found  little  more  than  dicta  in 
those  cases  to  guide  me  and  as  the  facts 
were  not  always  the  same  I  have  not  refer- 
red to  them,  Even  in  the  case  of  Niranjan 
v.  Gajadhar  (3)  there  is  nothing  more  than  a 
dictum. 

The  above  considerations  lead  me  to  the 
following  conclusion:  —that,  even  supposing 
the  present  case  to  come  within  s.  198  (1), 
the  heading  to  s.  198  does  not  involve  the 
conclusion  that  there  is  necessarily  a  matter 
of  proprietary  title  in  issue  in  the  Revenue 
Court  when  it  has  before  it  a  case  within  s. 
198;  that  where  the  plea  of  the  defendant 
literally  or,  in  effect  comes  within  s.  198(1), 
the  Revenue  Court  must  inquire  into  that 
plea,  i.  e.,  into  the  allegation  of  actual  pay- 
meats  in  good  faith  to  a  third  person  and 
determine  the  question,  but  should  not 
decide  the  question  of  the  title  of  the  alleg- 
ed third  person  to  receive  the  rent  and  has 
no  concern  with  such  title  beyond  such 
bearing  as  it  may  have  on  the  determination 
of  the  good  faith  of  the  payments;  that 
actually  the  present  case  does  not  come 


W.  &  T.  AVBRV  LD.  V.  KKSSOfUM  PO&DRR. 


[92 1.  0. 

within  B.  198  and  the  answer  to  the  question 
whether  a  matter  of  proprietary  title  is  in 
issue  must  be  sought  aliunde,  that  no  ques- 
tion of  proprietary  title  is  in  issue  in  the 
present  case;  and  that  appeal  lies  to  the 
appropriate  Revenue  Court, 

And  my  answer  to  the  reference  is  that 
the  defence  set  up  does  not  come,  as  the 
Collector  thinks  it  does,  under  s.  198;  and 
secondly,  that,  if  it  does  so  come,  theie  is 
still  no  question  of  proprietary  title  in  issue 
and  the  case  of  Har  Prasad  v.  Tajammul 
Hussain  (1)  and  Tulhi  v.  Ramraj  (10)  in  so 
far  as  they  decided  that  in  all  cases  coming 
withins.  198  a  question  of  proprietary  title  is 
in  issue  were  wrongly  decided;  and  that  the 
appeal  was  properly  filed  in  the  Court  of 
the  Collector 

By  the  Court.— Our  answer  to  the  Re- 
ference is  that  the  appeal  lay  to  the  Revenue 
Oourt  and  was  properly  filed  in  the  Court 
of  the  Collector  of  Basti.  We  make  no 
order  as  to  costs  of  this  Reference. 

N.  u.  Order  accordingly. 


CALCUTTA  HIGH  COURT. 

APPEAL  PROU  ORIGINAL  CIVIL  JURISDICTION 

No.  197  OF  1924. 

July  10,  1925. 

Present: — Sir  Lancelot  Sanderson,  KT  , 

Chief  Justice,  and  Mr.  Justice  Buckland. 

W.  &  T.  AVERT,  LD.— DEFENDANTS  — 

APPELLANTS 

vei  sus 
KEaSORAM  FODDER— PLAISTJPF  — 

RESPONDENT. 

Calcutta  Rent  Act  (III  of  19SO),  ss  2  ff)  (i), 
11  (5),  15 — Standard  rent,  what  is — Benefit  of  Act 

In  the  absence  of  any  application  by  the  landlord  to 
fix  a  higher  rate  under  a  15,  Calcutta  R«nt  Act,  the 
standard  rent  should  be  taken  to  be  the  rent  at  which 
the  premises  were  let  on  the  1st  of  November  1918 
with  the  addition  of  ten  per  cent  fp  100J,  col  1  ] 

A  tenant  as  entitled  to  the  benefit  of  s  11,  Cal- 
cutta Kent  Act,  if  he  complies  with  two  conditions, 
(1)  lie  must  have  paid  any  arrears  of  rent  which  might 
be  due  at  the  time  of  the  passing  of  the  Act  within 
threa  months  of  the  passing  of  the  Act,  and  (2)  he 
must  pay  the  rent  to  the  full  extent  allowable  by  the 
Act  within  the  time  iixed  by  the  contract  with  his 
landlord  and,  in  the  absence  of  any  such  contract,  by 
tha  15th  day  of  the  month  next  following  that  for 
which  the  rent  is  payable,  [p,  1003,  col.  2,  p.  1004, 
ool.  1.] 

^Vhen  a  person  ceases  to  ba  a  tenant,  he  cannot 
take  advantage  of  the  provisions  of  the  Calcutta  Rent 
Act.  [p  1004,  col.  2  j 

Appeal  against  an  order  of  Mr.  Justice 
Chotzner,  dated  the  1st  December  1924, 


1U01 


passed  in  the  exercise    of  Original    Civil 

Jurisdiction. 

Mr.  W.  W.  K.  Page,  for  the  Appellants 
Mr.  S.  R.  Das,  Advocate- General,  for  the 

Respondent, 

JUDGMENT. 

Sanderson,  C.  J.— This  is  an  appeal 
by  the  defendants  against  the  judgment  of 
my  learned  brother  Mr.  Justice  Chotzner. 

It  is  necessary  for  me  to  state  certain 
facts  The  appellants  were  in  occupation 
of  one  room  on  the  ground  floor  of  premises 
No.  1,  Hastings  Street,  as  monthly  tenants 
fiom  the  end  of  1911  or  the  beginning  of 
1912.  The  rental  was  Rs.  150  per  month. 
That  rental  remained  the  same  until  the 
year  1919.  In  1911  the  landlords  were  the 
Mullicks.  In  1919  Messrs.  Salomon  &  Co  , 
took  a  lease  from  the  Mullicks  of  the  pre- 
mises No  1,  Hastings  Street,  for  a  term  of 
20  years.  The  appellants  continued  to  be 
tenants  under  Messrs.  Solomon  &  Co 

On  the  5th  of  September  1919,  an  agree- 
ment was  made  between  the  appellants  and 
Messrs.  Solomon  &  Co.,  to  pay  Rs  500  rent 
per  mouth;  there  were  negotiations  for  a 
lease,  which  were  never  brought  to  comple- 
tion. In  December  of  the  same  year  the 
plaintiff,  Kessoram  Poddar,  bought  the 
lease  from  Messrs.  Solomon  &  Co  ,  and  the 
premises  from  Messrs.  Mullicks  for  a  total 
of  11  lacs,  paying  2  lacs  for  the  lease  and 
9  lacs  for  the  premises. 

The  plaintiff  accepted  the  appellants  as 
monthly  tenants  at  the  same  late  of  rent, 
namely,  Rs  500.  The  appellants  paid  the 
rent  at  tl  e  rate  of  Rs.  5uO  up  to  the  end  of 
April  1920.  On  the  5th  of  May  1*«20,  the 
Calcutta  Rent  Act  came  into  operation  In 
June  the  plaintiff  demanded  (he  rent  for 
May  the  appellants  then  said  that  they  were 
liable  to  pay  standard  rent  only,  which  was 
the  rent  payable  on  the  first  of  November 
1918,  plus  ten  per  cent,  namely,  Rs.  165* 

Apparently,  no  reply  was  sent  to  that 
statement;  and,  on  the  21st  of  July  1920,  the 
appellants  tendered  fthe  rent  based  upon 
the  rate  of  Rs.  500  up  to  the  5th  of  May, 
when  the  Rent  Act  came  into  force,  and  at 
the  rate  of  Rs.  165,  which  the  appellants 
declared  to  be  the  standard  rent,  for  the 
subsequent  period.  This  was  refused  and 
on  the  23idof  July  1920,  the  amount  was 
paid  to  the  Rent  Controller,  and  after  that 
date  the  appellants  continued  to  pay  what, 
they  contended,  was  the  standard  lent  to 
the  Rent  Controller, 


1WS 


W,  &  T.  AVEAY  LD,  V,  KB430JUM  FODDER, 


1  0. 1936J 


The  plaintiff  gave  notice  to  the  appellants 
that  he  was  intending  to  pull  down  and  re- 
build the  premises,  and  he  gave  them  notice 
to  vacate  the  premises:  no  action  was 
taken  on  the  first  notice  and  apparently 
the  plaintiff  abandoned  his  intention  to  re- 
build the' premises,  when  he  failed  to  get 
possession  from  the  appellants  and  entered 
into  an  agreement  to  sell  the  premises  to 
the  Imperial  Bank.  That  purchase  was 
completed  subsequently,  viz^  on  the  7th  of 
December  1921. 

The  plaintiff,  on  the  29th  of  December 

1920,  gave  notice  to  the  defendants  to  vacate 
the  premises  at  the  end  of  January  1921. 
That  is  the  notice  to  quit,  upon  which  re- 
liance is  placed  in  this  suit. 

This  suit  was  brought  on  the  10th  of 
January  1923,  and  the  claim  was  for  rent 
from  and  including  May  1920  to  the  end  of 
January  1921  at  the  rate  of  Rs.  500  per 
rtionth,  and  for  damages  for  wrongful  use 
and  occupation  of  the  premises  from  the  1st 
of  February  1921  up  to  the  7th  of  December 

1921,  which,  as  I  have  said,  was  the  date 
cto  which  the  plaintiff  sold  the  premises  to 
the  Imperial  Bank  and  after  which  he  had 
no  interest  in  the  ^premises. 

1  The  first  point,  which  was  urged  by  the 
learned  Advocate  on  behalf  of  the  appel- 
lants, was  that  the  plaintiff  was  not  entitled 
to  recover  rent  in  respect  of  the  first  period, 
Namely,  from  5th  May  1920  to  January 
1921,  both  months  inclusive,  at  a  rate  higher 
than  the  standard  rent  in  respect  of  these 
premises. 

The  learned  Judge  re j  ected  that  contention 
on  the  ground  that  the  standard  rent  had  not 
been  fixed  by  the  Rent  Controller,  and  that 
there  was  a  fallacy  underlying  the  argu- 
ment, because  it  proceeded  upon  the  as- 
sumption that  a  tenant  could  standardize 
his  own  rent.  The  learned  Judge  held  that 
the  appellants  ought  to  have  applied  to  the 
Rent  Controller  for  the  standardisation  of 
the  rent  and  as  they  did  not  do  so,  they 
could  not  be  heard  in  this  suit  to  allege 
that  they  were  not  liable  for  more  than  the 
standard  rent. 

The  question  is  whether  the  conclusion, 
at  which  the  learned  Judge  arrived,  is  cor- 
rect. 

I  am  not;  surprised  at  the  conclusion  at 
which  the  learned  'Judge  arrived,  because 
it  has  been  pointed  out  on  many  occasions 
that* the  provisions  of  the  Calcutta  Rent 
Act  are  difficult  to  construe.  With  great 
respect,  however,  tg  the  learned  Judge  I 


am  unable  to  agree  with  the  conclusion  at 
which  he  arrived. 

The  question  depends  upon  certain  sec-, 
tions  of  the  Rent  Act. 

Section  2  (/)  provides  that  "standard 
rent'1  in  relation  to  any  premises  means,  "(i) 
the  rent  at  which  the  premises  were  let  on 
the  first  day  of  November,  1918,  or,  where 
they  were  not  let  on  that  date,  the  rent  at 
which  they  were  last  let  before  that  date 
and  after  the  first  day  of  November,  1915, 
with  the  addition,  in  either  case  of  ten  per 
cent,  on  such  rent  [I  need  not  read  No.  (ii) 
in  connection  with  this  case  inasmuch  as 
the  premises  in  question  were  let  on  the  Ipt 
of  November  1918]; 

"(tit)  in  the  cases,  specified  in  s,  15,  the 
rent  fixed  by  the  Controller.11 

The  word  "or11  does  not  appear  between 
these  sub-sections,  but  I  think  that  it  must 
have  been  intended  that  the  sub-sections  or 
clauses  should  be  read  disjunctively.  Con- 
sequently "standard  rent"  may  be  as  de- 
scribed in  (i),  (ii)  or  (in)  in  s.  2,  cl.  (f). 

The  learned  Advocate  who  appeared  for 
the  appellants  submitted  that  the  learned 
Judge  was  wrong  in  holding  that  the  ten- 
ant had  standardised  his  own  rent.  He 
argued  that  the  rent  was  standardised  by 
the -Act:  and  he  pointed  put  that  the  first 
sub- clause  of  sub-s.  (/),  if  it  stood  alone, 
would  clearly  indicate  that  the  standard 
rent  was  the  rent  at  which  the  premises 
were  let  on  the  1st  of  November  lyiS  with 
the  addition  of  ten  per  cent,  on  such  rent, 

But  the  learned  Advocate  who  appeared 
for  the  plaintiff  argued  that  the  first  sub- 
section of  cl.  (f)  does  not  stand  alone  and 
sub-s.  (in)  must  be  considered. 

Now,  turning  to  s,  15,  which  is  the  section 
mentioned  in  sub-s,  (iii),  s.  2,  cl.  (/)  it  is 
found  that  "the  Controller  shall,  on  an  appli- 
cation made  to  him  by  any  landlord  or 
tenant,  grant  a  certificate  certifying  the 
standard  rent  of  any  premises  leased  or 
rented  by  such  landlord  or  tenant,  as  the 
case  may  be,n  and  that  "in  any  of  the  fol- 
lowing cases,  the  Controller  may  fix  the  stand- 
ard rent  at  such  amount  as,  having  regard 
to  the  provisions  of  this  Act  and  the  cir- 
cumstances of  the  case  he  deems  just. 

8ub-s.  (d)  is  one  of  the  following  cases 
and  refers  to  the  case  "where  the  rent  paid 
on  the  first  day  of  November,  1918  (or,  where 
the  premises  were  not  let  on  that  date,  the 
rent  at  which  the  premises  were  last  let  be- 
fore that  date)  was  in  the  opinion  of 
Controller  unduly  tow,1' 


[92 1.  0, 1928] 


W.  A  T,  AVBRY  U>,  V,  KES30RAM  FODDER. 


1003 


Section  15,  therefore,  gives  the  laadlord 
au  opportunity  of  applying  to  the  Control- 
ler and  alleging  that  the  rent  paid  in 
respect  oi  these  premises  on  the  1st  of  No- 
vember 1918  was  unduly  low,  and  if  he 
can  prove  that,  it  will  be  in  the  discretion 
of  the  Controller  to  fix  the  standard  rent 
at  an  amount  higher  than  the  rent  which 
was  actually  paid  on  the  1st  of  November 
1918,  subject  to  the  proviso  contained  in 
the  section  that  he  cannot  fix  it  at  a  higher 
amount  than  the  highest  rent  actually  paid 
for  the  premises  at  any  time  since  the  first 
day  of  November  1913.  In  this  case  the 
highest  rent  paid  for  the  premises  since 
the  first  day  of  November  1918  was  Rs.  500 
per  month,  so  that  if  the  landlord  had  ap- 
plied to  the  Controller  and  alleged  that 
the  rent  which  had  been  paid  in  November 
1918  was  unduly  low,  the  Controller  might 
have  fixed  it  at  a  higher  amount.  If  he 
had  been  satisfied  that  the  rent  in  Novem- 
ber 1918  was  unduly  low,  the  Controller 
might  have  fixed  it  at  a  higher  amount, 
but  he  could  not  fix  it  at  a  higher  amount 
than  Rs.  500  per  month. 

Consequently,  the  learned  Advocate  for 
the  plaintiff-respondent  argued  that  on  the 
1st  November  191$  rent  plus  ten  per  cent, 
should  not  be  adopted  as  the  standard  rent 
in  this  case,  because  the  Controller  might 
upon  an  application  by  the  landlord  have 
fixed  a  higher  rent. 

In  my  opinion,  that  view  ought  not  to 
be  accepted.  I  think  it  was  intended  by 
the  Act  that  prima  facie  the  standard  rent 
which  was  mentioned  in  sub-s.  (i)  of  cl.  (/) 
of  s.  2  should  be  the  standard  rent,  and 
in  the  absence  of  any  application  by  the 
landlord  to  fix  it  at  a  higher  rate,  under 
8.  15,  the  "standard  rent"  should  be  taken 
to  be  the  rent  at  which  the  premises  were 
let  on  the  1st  of  November  1918  with  the 
addition  of  ten  per  cent,  as  provided  by 
sub-s.  (i). 

It  was  not  necessary,  in  my  opinion,  for 
the  defendants  in  this  case  to  show  that 
they  had  made  an  application  to  the  Con- 
troller and  that  he  had  fixed  the  standard 
rent  at  Rs.  165  before  taking  the  point  in 
this  suit.  In  other  words,  in  my  opinion, 
it  was  open  to  the  defendants-appellants 
to  urge  and  rely  upon  the  fact  that  the 
standard  rent  as  fixed  by  the  Act  was 
Rs.  165  per  month.  Consequently,  in  my 
judgment,  by  reason  of  the  provisions  of 
s,  4  of  the  Act,  the  plaintiff  was  not  en- 
titled to  recover  any  amount  which  exceeded 


the  standard  rent  for  the  period  from  May 
1920  to  January  192 L 

The  result,  therefore,  is  that,  in  my 
judgment,  that  part  of  the  decree  of  the 
learned  Judge  which  deals  with  the 
amount  of  rent  recoverable  should  be 
varied. 

I  understand  that  the  standard  rent  had 
been  deposited  with  the  Controller  and  has 
in  fact  been  withdrawn  by  the  plaintiff. 

The  remainder  of  the  case  relates  to  the 
question  whether  the  notice  in  December 
1920  was  a  valid  notice.  That  depends 
upon  the  construction  to  be  placed  upon 
s.  11,  sub-s.  (5).  That  sub-section  provides: 
"No  tenant  shall  be  entitled  to  the  benefit 
of  this  section  in  respect  of  any  premises, 
unless  within  three  months  of  the  date  of 
the  commencement  of  this  Act  he  has  paid 
all  arrears  of  rent  due  by  him  in  respect 
of  the  said  premises,  and  also  unless  he 
pays  the  rent  due  by  him  to  the  full  ex- 
tent allowable  by  this  Act  within  the  time 
fixed  in  the  contract  with  his  landlord,  or, 
in  the  absence  of  any  such  contract,  by  the 
fifteenth  day  of  the  month  next  following 
that  for  which  the  rent  is  payable11. 

It  is  to  be  noticed  that  this  section  deals 
with  the  granting  of  an  order  or  a  decree 
for  recovery  of  possession  only. 

The  point  arises  in  this  way:  As  I  have 
already  mentioned,  the  amount  of  the 
standard  rent  for  May  and  June  was  not 
tendered  to  the  landlord  until  the  21st 
July  1920  and  was  not  paid  to  the  Rent 
Controller  until  the  23rd  of  July  1920,  and 
it  is  not  denied  that  that  was  not  paid 
within  the  time  specified  by  the  Act.  But 
the  learned  Advocate  for  the  appellants 
presented  an  ingenious  argument  based 
upon  sub-s.  (5)  of  s.  11  which  was  to  this 
effect.  He  argued  that  sub-s.  (5)  was  in- 
tended to  give  a  tenant  three  months  with- 
in which  he  might  pay  the  arrears  of  rent, 
and  that  such  arrears  would  include  not 
only  any  arrears  of  rent,  which  might  be 
due  at  the  time  the  Act  came  into  force, 
but  also  any  arrears  of  Ptandard  rent  which 
might  become  due  after  the  Act  came  into 
force. 

In  my  judgment  this  argument  ought 
not  to  be  accepted.  Having  regard  to  the 
words  used  in  the  sub-section  and  to  the 
framing  of  the  sub-section,  I  think  it  is 
clear  that  the  intention  was  to  give  the 
tenant  the  benefit  of  the  section,  if  he 
complied  with  two  conditions:  in  the  first 
place  he  must  have  paid  any  wears  of 


1604 


W.  &  T.  AVSRY  LD.  V.  KfiSSORAM  PODDBfc, 


[92  I.  0, 1926J 


rent  which  might  be  due  at  the  time  of 
the  passing  of  the  Act  within  three  months 
of  the  commencement  of  the  Act;  and, 
secondly,  he  must  pay  the  rent  to  the  full 
extent  allowable  by  the  Act  within  the 
time  fixed  by  the  contract  with  his  land- 
lord and  in  the  absence  of  any  such  con- 
tract by  the  15th  day  of  the  month  next 
following  that  for  which  the  rent  is  pay- 
able. 

In  this  case  the  appellants  did  not  pay 
the  rent  within  the  time  fixed  in  the  con- 
tract or  by  the  15th  day  of  the  month, 
which  followed  the  months  of  May  and 
June  for  which  the  rent  was  payable:  and, 
consequently,  in  my  opinion,  the  appel- 
lants were  in  default. 

It  is  true  that  the  plaintiff  did  not,  act 
upon  the  default  until  the  end  of  the  year; 
but  he  was  within  his  rights  in  giving  the 
notice  in  December  1920  which  exphed  at 
the  end  of  January  1921. 

Consequently,  after  January  1921  the 
appellants  were  trespassers  and  were  no 
loriger  tenants,  and  they  are  liable  to  the 
plaintiff  for  compensation  for  the  wrongful 
use  and  occupation  of  the  premises  from 
the  1st  of  February  1921  to  the  7th  of 
December  1921. 

The  learned  Judge  awarded  compensa- 
tion at  the  rate  of  Rs.  500  per  month  He 
based  his  judgment  to  a  large  extent  upon 
the  evidence  given  by  Mr.  Shrosbree. 

It  was  argued  on  behalf  of  the  appel- 
lants that  the  plaintiff's  case  was  that  he 
wanted  the  premises  in  order  that  he 
might  pull  them  down  and  re-build  ;  that 
he  abandoned  that  intention  of  his  own 
accord  and  sold  the  premises;  that  although 
he  alleged  that  he  had  suffered  loss;  he 
gave  no  proof  of  the  alleged  los^and,  there- 
fore, that  the  moat  the  plaintiff  could  re- 
cover would  be  such  rent  as  the  plaintiff 
•could  have  recovered  from  a  tenant  during 
those  months;  that  having  regard  to  the 
provisions  of  the  Calcutta  Rent  Act  the 
•plaintiff  could  not  have  recovered  from  any 
tenant  more  than  the  standard  rent  in 
respect  of  the  premises  and  that  as  the 
appellants  had  in  fact  paid  to  the  Con- 
troller the  standard  rent  for  this  period 
and  the  plaintiff  had  received  the  same, 
the  plaintiff  was  not  entitled  to  any  dam- 
ages at  all. 

On  the  other  hand,  it  was  argued  on  be- 
half of  the  plaintiff  that  the  learned  Judge 
was  right  in  awarding  damages  at  the  rate 
of  Rs.  500  per  month, 


I  agree  with  the  learned  Judge's  deci- 
sion as  to  the  amount  of  the  damages  al- 
though I  base  my  judgment  on  grounds 
somewhat  different  to  those  stated  by  the 
learned  Judge. 

The  plaintiff  can  only  recover  such  dam- 
ages as  flow  naturally  from  the  breach  of 
duty  or  breach  of  contract  in  the  ordinary 
and  usual  course  of  things. 

The  evidence  was  that  the  appellants  had 
willingly  agreed  to  pay  Rs.  500  a  month 
for  the  premises  in  1919.  Further  they 
desired  to  take  a  lease  for  three  years  at  the 
rate  of  Rs,  500  per  month.  The  evidence 
further  shows  that  the  appellants  tried  to 
find  other  premises  but  they  could  not  get 
any  other  suitable  premises  at  a  lower 
rent  than  Rs.  500  a  month. 

Now,  after  January  1921,  as  I  have  already 
said,  they  were  no  longer  tenants  and  they 
were  not  in  a  position  to  take  advantage 
of  the  Calcutta  Rent  Act— they  were  wrong- 
doers. 

In  these  circumstances  it  is  not  unreason- 
able to  hold  that  Rs.  500  a  month  was  fair 
compensation  for  the  use  and  occupation 
of  the  premises  by  the  defendants  after 
January  1921. 

It  was  not  for  the  plaintiff  to  prove  what 
would  have  been  the  standard  lent  if  an 
application  had  been  made  to  the  Control- 
ler, 

The  premises  are  in  ail  impoitant  quarter 
of  the  town  and  the  defendants,  before 
the  Rent  Act  came  into  operation,  were 
willing  to  pay  Rs.  500  per  month.  Prima 
/aci'e,  thereto  re,  it  ia  not  open  to  the  defend- 
ants to  allege  that  such  amount  was  not 
a  fair  rent  for  a  tenant  to  pay.  If  an 
application  had  been  made  to  the  Rent 
Controller  he  might  have  fixed  the  standard 
rent  at  less  than  Rs.  500  per  month.  On 
the  other  hand,  he  might  have  fixed  it  at 
Rs.  500  a  month.  • 

f  No  application  was  made  and  that  ques- 
tion was  never  decided. 

It  has,  therefore,  not  been  proved  what  the 
standard  lent  would  have  been  if  the  matter 
had  come  before  the  Controller. 

In  the  absence  of  any  such  decision  and 
upon  the  evidence  in  the  case,  I  am  not 
satisfied  that  the  learned  Judge  was  wrong 
in  holding  that  the  damages  for  the  wrong- 
ful use  and  occupation  of  the  premises  by 
the  defendants  should  be  assessed  on  the 
basis  of  Rs.  5cO  a  month. 

The  result  is  that  the  sum  of  Rs.  4,500 
-decreed  aa  rent  will  be  reduced  to  Ks.  1,485 


W.  A  T.  AVflRY  tD.  t>,  MSSORAM  J?OCl>fcR. 

amount  of  the  decree    the  period    between  the 


I.  0. 1026] 

making   the  total 
Rs.  6,601-10-6. 

As  regards  costs,  we  are  of  opinion  that 
the  appellants  should  have  the  general 
costs  of  the  appeal  and  the  costs  of  one 
day's  hearing.  \Ve  do  not  inteifere  with 
the  order  of  the  learned  Judge  as  regards 
costs. 

The  money  received  from  the  Rent  Con- 
troller by  the  respondents  will  be  taken  as 
part  satisfaction  of  the  decree  and  satisfac- 
tion will  be  entered  to  that  extent 

Buckland,  J.  -I  will  first  deal  with 
the  point  whether  the  notice  to  quit  was  a 
valid  notice.  For  this  purpose,  though  I 
shall  give  my  reasons  later,  I  may  say  at 
once  that,  in  my  opinion,  the  amount  of 
rent  which  the  appellant  Company  had  to 
pay  was  the  amount  which  they  actually 
deposited  with  the  Rent  Controller  month 
by  month  and  it  is  on  this  basis  that  I 
will  deal  with  the  question  as  to  the 
notice  to  quit.  The  appellant  Company, 
therefore,  \^e,e  entitled  to  the  benefit  of 
s.  11  of  the  Act  provided  they  paid  that 
amount  either  to  the  landlord  by  the 
fifteenth  day  of  the  month  next  following 
that  for  which  it  was  payable,  or,  if  refused 
by  the  landlord,  deposited  it  with  the  Rent 
Controller  under  sub  s.  (4).  The  difficulty 
in  which  the  appellant  Company  find 
themselves  is  that  as  regards  the  rent  for 
May  1920  they  deposited  it  out  of  time  and 
by  reason  of  that  they  are  precluded  from 
claiming  the  benefit  of  the  section. 

The  argument  that  the  "arrears11  leferred 
to  in  sub-s.  (5)  includes  rent  in  arrear 
during  the  first  three  months  after  the  Act 
came  into  f 01  ce,  and  payable  in  respect  of 
those  months  leads  to  the  difficulty  that 
in  regard  to  those  three  months,  if  that 
construction  were  adopted,  there  would  be 
two  inconsistent  provisions  as  to  the  pay- 
ment of  rent,  namely,  that  provided  in  the 
first  part  of  sub  s.  (5)  that  the  tenant  shall 
have  three  months  within  which  to  pay 
such  rent  and  that  provided  by  the  latter 
part  that  he  must  pay  or  deposit  his  rent 
month  by  month. 

The  correct  construction  of  this  sub-sec- 
tion, in  my  opinion,  is  that  the  "arrears11 
referred  to  are  arrears  due  at  the  time 
when  the  Act  comes  into  force  and  that  the 
first  part  has  nothing  to  do  with  rent 
which  accrues  due  month  by  month  after 
that  date. 

The  next  question  is  as  to  the  amount  of 
to  which  the  plaintiff  was  entitled,  for 


1006 


1st  of  May  1920 

and  the  31st  of  January  192] .  This  involves 
consideration  of  vanous  sections  of  the 
Calcutta  Rent  Act,  an  Act  of  faulty  con- 
stiuction  which  renders  it  difficult  of  inter- 
pretation. 

The  contention  of  the  plaintiff,  stated 
briefly,  is  that  unless  the  standard  rent  has 
been  fixed  by  the  Couti oiler  the  tenant  is 
not  entitled  to  take  advantage  of  the  pro- 
visions of  the  Act,  for,  in  fact  no  rent  hae 
been  fixed  by  the  Con tj oiler  as  standard 
rent  of  the  premises  in  suit 

For  the  defendant  Company,  on  the  other 
hand,  it  has  been  argued  that,  though  not 
necessaiily  in  all  cases  but  piobably  in 
the  majority  of  cases  and  certainly  in  this 
case,  theie  is  a  standard  rent  which,  so  to 
speak,  attached  to  pioperty  from  the 
moment  that  the  Calcutta  Rent  Act  oame 
into  force  irrespective  of  any  application 
made  to  or  order  passed  by  the  Rent 
Controller  under  the  Act,  and  that,  subject 
to  what  I  shall  have  to  say  presently,  that 
is  the  amount  winch  the  tenant  must  pay 
or  deposit. 

"  Standard  rent  "  is  defined  in  s.  2  (/)  as 
the  rent  at  which  the  premises  were  let  on 
the  fust  day  of  November  1918,  or,  where 
they  were  not  let  on  that  date,  the  rent  at 
which  they  were  last  let  between  the  first 
day  of  November  1915  and  the  first  day 
of  November  1918,  plus  ten  per  cent,  on 
such  rent  in  either  case. 

The  sub-section  furnishes  two  more  de- 
finitions of  which  the  second  may  be  ignor- 
ed. It  has  no  application  to  the  present 
case. 

The  third  definition  involves  reference  to 
s.  15  and  provides  that  in  the  cases  specifi- 
ed in  s.  15  the  "standard  rent11  is  the  rent 
fixed  by  the  Controller.  Now,  in  order  to 
ascertain  what  those  cases  are,  for  it  is  in 
those  cases  alone  that  rent  fixed  by  the 
Controller  is  u standard  rent"  according  to 
the  definition,  one  must  look  at  s.  15  (3). 
The  first  two  sub-sections  have  nothing  to 
do  with  this  matter,  sub-s.  (3)  is  sub-divid- 
ed into  five  cases  each  involving  different 
sets  of  circumstances,  none  of  which  has 
any  application  to  the  present  case.  If  it 
had  been  intended  that  standard  rent 
should  only  be  such  rent  as  the  Rent  Con- 
troller has  fixed,  and  that  in  the  circum- 
stances contemplated  by  s.  2  (/)  (t)  all  that 
the  Rent  Controller  would  have  to  do  would 
be  to  ascertain  the  rent  on  the  date  material 
thereunder  and  add  ten  per  cent,,  it 


1006 


LAKSHMI  CHAND  t?.  MtiKTA  PARSHAD. 


have  been  more  correct  to  have  included 
such  a  case  among  the  cases  under  s.  15  (3) 
a&d  eliminated  s.  2  (/)  (i)  altogether.  But, 
inasmuch  as  the  case  with  which  we  have 
to  deal  is  not  one  of  those  mentioned  in 
s.  15  (3)  and  consequently  ia  not  one  in 
which  the  Rent  Controller  may  fix  the 
standard  lent  thereunder,  it  follows  that 
under  the  definition  clause  the  action  of 
the  Rent  Controller  in  fixing  the  standard 
rent  should  be  excluded. 

I  do  not,  however,  altogether  exclude  the 
operation  of  e.  15  (1)  under  which  the  Con- 
troller may  certify  the  standard  rent,  though 
he  fixes  it  in  appropriate  cases  under  s.  15 
(3).  It  may  be  that  in  a  case  to  which 
s.  2  (/)  (i)  applies  it  is  open  to  a  party  to 
apply  to  the  Controller  for  a  certificate. 
This  point  does  not  arise  in  this  case  but  I 
mention  it  lest  the  juxtaposition  of  these 
two  sub-sections  should  lead  to  the  sug- 
gestion that  in  a  case  to  which  s.  2  (/)  (i) 
applies  it  is  the  duty  of  the  party  interest- 
ed in  having  it  done  to  make  an  applica- 
tion to  the  Rent  Controller  under  s.  15  (1), 
even  if  s.  15  (3)  has  no  application. 

In  my  opinion,  the  contention  of  learned 
Counsel  for  the  appellant  Company  is  the 
correct  one  and  where  the  conditions  con- 
templated by  sub-s.  2  (/)  (i)  exist,  the 
standard  rent  follows  as  a  matter  of  course, 
subject,  however,  to  this  that  it  is  always 
open  to  a  landlord  or  a  tenant  to  make 
an  application  to  the  Rent  Controller 
under  s.  15  (3)  if  he  can  bring  the 
matter  within  its  several  provisions.  Upon 
the  Rent  Controller  so  fixing  the  rent 
then  there  is  another  standard  rent  for 
the  premises  as  defined  by  the  Act.  This 
leads  to  the  curious  result  that  there 
may  be  a  standard  rent  as  defined  by 
s.  2  (/)  (i)  and  a  standard  rent  as  defined 
by  s.  2  (/)  (m),  both  simultaneously  appli- 
cable to  the  same  premises.  There  is,  how- 
ever, no  practical  difficulty  because  when 
you  come  to  apply  other  provisions  of  the 
Act  and,  in  particular,  s.  4  (1)  or  s.  11  (5), 
the  landlord  would  be  entitled  to  the  bene- 
fit of  whichever  standard  rent  might  be 
the  higher.  In  this  view,  the  amount 
which  the  plaintiff  was  entitled  to  recover 
from  the  defendant  Company  was  the 
amount  for  which  the  premises  were  let  on 
the  1st  of  November  1918  phis  ten  per  cent. 
There  is  no  question  as  to  what  that 
amount  was  and,  IB  my  opinion,  the  judg- 
ment and  decree  of  the  learned  Judge 
Should  to  this  extent  be  modified, 


[921.0. 1926] 

The  learned  Judge  has  relied  upon  an 
earlier  judgment  of  mine  in  Jetha  Bhul- 
chand  v.  Grace  (1).  That  is  not  an  authori- 
ty for  the  proposition  that  if  standard  rent 
has  not  been  fixed  by  the  Controller,  the 
tenant.must  pay  the  agreed  rent  to  the  land- 
lord or  deposit  it  with  the  Controller.  In 
that  case  according  to  my  recollection, 
which  the  report  confirms,  there  was  no 
competition  as  bet  ween  the  standard  rent 
and  the  agreed  renfc.  The  only  question 
was  whether  the  tenant  had  paid  or  deposit- 
ed his  rent  in  time.  I  am  not  sure  that 
th4  learned  Judge  referred  to  the  case  on 
the  question  of  amount,  but  without  expla- 
nation  it  might  be  so  interpreted  and 
deemed  to  conflict  with  the  opinion  now 
expressed. 

The  last  question  is  that  of  damages. 
I  agree  with  the  opinion  expressed  by  the 
learned  Chief  Justice  and  have  nothing  to 
add. 

I  concur  in  the  order  to  be  made. 

R.  L.  Order  accordingly. 

(1)  70  Ind,  Cas  494;  26  0.  W.  N,  678;  A.  I.  K.  1923 
Cal.  220, 


LAHORE  HIGH  COURT. 

MISCELLANEOUS  SECOND  CIVIL  APPEAL 

No.  1748  OP  1925. 

January  16,  1926. 
Present: — Mr.  Justice  Dalip  Singh. 

LAKSHMI   CHAND  AND  ANOTHER— 

PLAINTIFFS-  -APPELLANTS 

versus 

MUKTA  PARSHAD  AND  OTHERS- 
DEFENDANTS — RESPONDENTS. 

Civil  Procedure  Code  (Act  V  o£  1908),  0.  Xt  r.  J— 
Examination  of  parties- -Replication  coienng  all  facts 
in  written  statement — Witnesses,  order  in  which  to  lead 
— Court,  duty  of. 

The  Court  is  bound  to  examine  the  parties  only 
when  there  is  no  clear  express  or  implied  denial  of  any 
statement  of  fact  in  the  pleadings.  But  where  a  plaint- 
iff puts  in  a  written  replication  which  covers  all  state- 
ments of  fact  referred  to  in  the  written  statement, 
there  is  no  occasion  for  the  Court  to  examine  the 
parties  or  their  Pleaders. 

It  is  no  duty  of  the  Court  to  direct  a  party  PS  to 
the  order  in  which  he  is  to  lead  his  witnesses. 

Miscellaneous  second  appeal  from  an 
order  of  the  District  Judge,  Ambala,  dated 
the  8th  April  1925,  reversing  that  of  tte 
Subordinate  Judge,  Second  Class,  Ambala. 
dated  the  20th  June  1924. 

Mr,  Shamair  Chand,  for  the  Appellants. 

Pandit  Bishan  Natfc,  for  the  Respondents, 


fcAST  INDIAN  RAILWAY  tf. 


[SSI,  0.1826J 

JUDGMENT.—The  learned  District 
Judge  remanded  this  case  on  the  grounds 
set  out  in  para.  2  of  his  judgment.  The 
first  ground  mentioned  there  is  that  the 
lower  Court  omitted  to  comply  with  the 
provisions  of  0.  X,  r.  1.  Now,  O.  X,  r.  1  only 
makes  it  obligatory  on  the  Court  to  examine 
the  parties  where  there  is  no  clear  express 
or  implied  denial  of  any  statement  of  fact  in 
the  pleadings.  In  this  case  the  plaintiff  had 
put  in  a  written  replication  which,  as  far  as 
I  can  see,  covered  all  statements  of  fact  re- 
ferred to  in  the  written  statement,  There 
was,  therefore,  no  occasion  for  the  Court  to 
examine  the  parties  of  their  Pleader. 

The  next  ground  taken  is  that  the  Court 
omitted  to  comply  with  para.  75  of  the 
Rules  and  Orders  of  the  High  Court, 
Vol.  L  This  omission  was  not  made 
the  subject  of  any  ground  of  appeal  before 
the  District  Judge  and  I  do  not  see  that  it 
was  necessary  to  remand  the  case  for  this 
purpose  in  the  circumstances  of  this  case. 

The  third  point  taken  was  that  the  defend- 
ants had  stated  that  they  proposed  to  prove 
issue  No.  2,  the  onus  of  which  was  on  them, 
by  the  evidence  of  one  witness  the  evidence 
of  the  plaintiff  and  the  evidence  of  one  of  the 
defendants.  The  defendants  examined  the 
plaintiff  before  putting  one  of  themselves 
into  the  witness-box,  and,  on  an  objection 
taken  by  the  plaintiff,  the  lower  Court  dis- 
allowed the  statement  of  the  defendant  on 
the  ground  that  the  defendants  should,  if 
they  wished  to  take  a  statement  of  the  de- 
fendant, have  taken  it  before  the  statement 
of  the  plaintiff  was  recorded.  The  learned 
District  Judge  seems  to  have  been  of  opinion 
that,  as  the  defendant  had  announced  his 
intention  of  summoning  himself  as  a  wit- 
ness, it  was  the  duty  of  the  Trial  Court  to 
have  warned  him  to  take  the  statement  of 
the  plaintiff  last.  I  do  not  see  that  it  was 
the  duty  of  the  Court  to  direct  the  party  as 
to  the  order  in  which  he  was  to  lead  his 
'witnesses.  The  Court  might  well  have  done 
so  but  I  cannot  see  that  this  is  a  ground  for 
remand  because  the  defendants  were  the 
persons  primarily  responsible  for  the  order 
in  which  their  evidence  was  to  be  record- 
ed. 

The  next  ground  taken  is  that  the  Court 
disallowed  a  certain  statement  of  accounts 
from  being  put  in  in  order  to  contradict  the 
plaintiff  as  a  witness.  The  Court  perhaps  was 
strictly  speakings  ithin  its  rights  in  disallow- 
ing this  document  which  should  have  been 
put  in  earlier  in  the  cotire*  of  the  picceed- 


BiLDBO  GtJTAlN. 


ings.  However  as  the  statement  of  accounts 
had  been  sent  by  plaintiff  himself  to  the 
defendants  I  think,  in  the  circumstance- 
of  the  case,  the  Court  might  well  have  ex* 
ercised  its  discretion  in  favour  of  the  defend- 
ants. Mr.  Shamair  Chand  for  the  appel- 
lant has  not  pressed  the  matter  before  me. 
He  has,  however,  pointed  out  that  it  is  un- 
necessary to  remand  the  whole  case  for  re- 
decision  and  that  it  is  sufficient  to  allow  the 
document  to  be  put  in  now  and  the  plaintiff 
further  examined,  if  necessary. 

I,  therefore,  accept  the  appeal  and  set  aside 
the  order  remanding  the  case  for  re-decision 
and  re-trial,  but  I  direct  that  the  learned 
District  Judge  may  either  allow  the  plaint- 
iff to  be  further  examined  before  himself 
with  reference  to  the  statement  of  accounts 
which  was  disallowed  in  the  Court  below  or 
may  direct  the  lower  Court  to  examine  the 
plaintiff  further  with  references  to  the  state- 
ment of  accounts  and  submit  a  report  to 
himself  as  to  the  result  of  the  examination 
together  with  a  decision,  if  necessary,  on 
issue  No.  2.  This  order  will  meet  the 
ends  of  justice  in  this  case.  For  the  rest 
the  learned  District  Judge  will  dispose  of 
the  appeal  according  to  law. 

B.  L.  Appeal  accepted. 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  .139  OF  1925. 

January  5,  1926. 

Present  .—Mr.  Justice  Daniels. 

EAST  INDIAN  RAILWAY— PETITIONER 

versus 

FiRMBALDEO  GUTAIN- 
OPPOSIEB  PARTY. 

Contract  Act  (IX  of  1872),  s.  231— Railway 
receipt  granted  in  name  of  agent — Loss  of  goods 
— Owner  of  goods,  whether  can  sue— Carriage  of  goods 
— Railway  Company — Risk  Note — Staling  wagon  with 
paper—  Loss  of  goods  in  transit — Wilful  negligence 

Where  a  Railway  receipt  for  goods  consigned  is 
gi  anted  in  the  name  of  a  servant  or  agent,  the  real 
owner  of  the  goods  is  entitled  to  sue  diiectly  the  Rail- 
way Company  for  their  value  if  the  goods  are  lost, 

Sealing  a  wagon  with  paper  only  constitutes  wilful 
negligence,  and  the  Railway  Companj*  can  be  success- 
fully sued  for  damages  if  the  goods  are  lost  in  transit, 

Firm  Balram  Dass-Fakir  Chand  v  Great  Indian 
Peninsula  Railway  Company,  88  Ind.  Cas  559,  23  A, 
L  J  645;  L.  R.  0  A.  340  Civ  ;  A  I.  R.  1925  All.  562;  47 
A.  724,  followed. 

Civil  revision  from  an  order  of  the  Judg$, 
Small  Cause  Court.  Jhansi,  dated  the  24th 
of  July  1921, 


INDIAN  VACUUM 

Mr.  Ladll  Prasad  Zutshi,  for  the  Appli- 
cant. 

Mr.  S.  C,  Das,  for  Mr.  K.  N.  Laghate,  for 
the  Opposite  Party. 

JUDGMENT.— This  is  a  revision  ap- 
plication against  a  Small  Cause  Court  decree 
•awarding  compensation  for  two  bags  of 
sugar  forming  two  complete  packages  out 
of  a  larger  consignment  which  were  lost 
in  transit.  The  lower  Court  has  held  that 
there  was  wilful  negligence  on  the  part  of 
the  Railway.  The  grounds  taken  in  revision 
are  two  : — 

(1)  That  the  plaintiff-firm  was  not  entitl- 
ed to  sue  because  the  Railway  receipt  was 
granted  in  the  name  of  its  agents. 

(2)  That  the  Court  below  was  wrong  in 
holding  that  sealing  a  wagon  with  paper 
only  constitutes  wilful  negligence. 

1  On  the  firfrt  point  even  if  the  name  of 
the  principal  was  not  disclosed  he  is  entitled 
under  s.  231  of  the  Contract  Act  to  sue  on 
the  contract.  I  know  of  no  authority  for  the 
proposition  that  where  a  Railway  receipt  is 
granted  in  the  name  of  a  servant  or  agent 
the  real  owner  of  the  goods  cannot  claim 
{.or  their  value  if  lost.  On  the  second  point 
the  judgment  of  the  Court  below  is  sup- 
ported by  the  ruling  in  Firm  Balram  Dass- 
Fakir  Chand  v.  Great  Indian  Peninsula 
Railway  Company  (1)  which  I  am  unable 
to  distinguish  from  the  facts  of  the  pre- 
sent case,  The  revision  accordingly  fails 
and  I  dismiss  it  with  costs. 

s,  s.  Appeal  dismissed. 

(1)  88  Ind.  Cas.  559;  23  A.  L.  J.  645,  L.  R,  6  A.  340 
Civ  ;  A.  I,  R,  1925  Alt.  562,  47  A.  724 


CALCUTTA  HIGH  COURT. 

ORIGINAL  CIVIL  APPLICATION  IN  THE 
MATTER  OF  INDIAN  PATENT  AND  DESIGNS 

ACT, 

July  14,  1925. 

Present: — Mr.  Justice  Gregory. 

INDIAN  VACUUM  BRAKE  Co,  LTD.— 

PETITIONEK 

versus 

E.  8    LUARD— RESPONDENT. 

Patents  and  Designs  Act  (II  of  10LT),  s.  26— Utility 
and  novelty,  meaning  of —Patent  for  making  in  one 
piece 

In  Patent  Law  the  term  'utility'  ia  not  used  in  the 
abstract  but  in  a  very  special  sense.  It  may  be  de- 
scribed as  an  invention  better  than  the  preceding 
knowledge  of  the  trade  as  to  a  particular  article. 
Mere  usefulness  is  not  sufficient  to  support  a  patent, 
[p.  1009,  col  2.] 


.  LTD,  t>.  fi.  8, 


[92 1.  0- 1926) 


For  purposes  of  novelty  in  Patent  Law  it  id  not 
enough  that  the  purpose  is  new  or  that  there  is  novelty 
in  the  application  so  that  the  article  produced  is  in 
that  sense  new,  but  there  must  be  some  novelty  in 
the  mode  of  application  hi  adopting  the  old  contriv- 
ance to  the  new  purpose  there  must  be  ditfk'ulties  to 
overcome  lequmng  what  is  called  invention  or  there 
must  be  some  ingenuity  in  the  mode  of  making 
adoption.  To  be  new  the  novelty  must  show  inven- 
tion, [p  1003,  col  2;  p.  1010,  col.  1  ] 

Patents  for  making  in  one  piece,  articles  previously 
made  in  two  or  more  pieces  have  generally  been  held 
invalid,  [p  1010,  col.  1.] 

Mr.  F.  N.  Cliatterjee  (with  him  Mr,  C. 
Bagram),  for  the  Petitioner. 

Mr.  S.  N.  Banerjee  (with  him  Mr.  A.  K. 
Roy),  for  the  Respondent. 

JUDGMENT.—This  is  a  petition  under 
s  2G  of  the  Patents  and  Designs  Act  (II  of 
1911)  for  the  revocation  of  a  patent  granted 
to  the  respondent  on  the  21st  March  1922, 
by  the  Controller  of  Patents  and  Designs, 
Calcutta.  At  the  request  of  the  parties  this 
case  has  been  tried  with  the  aid  of  au 
Assessor,  Mr.  A.  II.  Thackwell,  Works  Mana- 
ger, East  Indian  Railway?,  Carriage  and 
Wagon  Workshops,  Lilooah,  and  I  desire  to 
acknowledge  his  assistance  to  me.  The 
petitioner  ia  the  Vacuum  Brake  Co  ,  Ltd  , 
who  can y  on  business  in  the  manufacture 
and  sale  of  Vacuum  Brake  fittings  for  Rail- 
way locomotives  and  rolling  stock.  The 
respondent  is  an  Engineer  and  is  a  Direc- 
tor of  the  Consolidated  Brake  and  Engineer- 
ing Co  ,  Lid  ,  manufacturers  of  Vacuum 
Brakes.  The  petitioner  for  many  years,  in 
the  business  of  the  Company,  imported 
from  the  factory  in  England  and  sold  in 
British  India,  Vacuum  Brake  Cylinders  de- 
scribed as  having  the  valve  chamber 
mounted  in  the  inner  side  of  the  piston 
according  to  2  designs  No.  14153,  dated  2nd 
November  1909  and  No.  14678,  dated  23rd 
April  1910.  These  designs  were  published 
and  have  been  publicly  known  in  British 
India  since  1910.  The  petitioner  also  claims 
to  be  the  assignee  of  a  patent  known  as 
"  Hardy's  Patent11  being  British  Letters 
Patent  No.  5864  of  1905.  This  also  was 
publicly  known,  and  published  in  India, 
and  Vacuum  Brake  Cylinders  according  to 
that  patent  have  been  publicly  used  in 
India. 

On  the  21st  February  1922,  the  respond- 
ent applied  for  and  obtained  in  England  a 
patent  relating  to  the  pistons  of  Vacuum 
Brake  Cylinders  identical  with  the  one  in 
the  present  suit.  That  patent  was  No.  5099 
of  1922.  On  appeal,  however,  by  the  pre- 
sent petitioner,  the  patent  No,  5099  wag 


[92 1  0. 


INDIAN  VACUUM  BRAkE  co  LTD.  v.  B.  s.  LTURD. 


io6a 


feancelled  on  the  3 1st  July  1924  by  the 
Solicitor  General  who  held  the  view  that 
it  disclosed  no  invention.  In  the  mean- 
while, on  the  21st  March  1922,  the  respond- 
ent had  applied  in  Calcutta  to  the  Con- 
troller of  Patents  for  a  patent  of  the  same 
device.  The  application  was  opposed  by 
the  petitioner,  but  it  was  accepted  on  the 
llth  June  1922,  and  Patent  No.  8015,  dated 
2 1st  March  1922,  the  subject-matter  of  the 
present  suit,  was  granted.  On  the  lOLh 
December  1923,  the  respondent  applied  to 
the  Patent  Office  in  Calcutta  for  an  amend- 
ment of  his  Specification  No.  8018  of  2 1st 
March  1922.  The  amendments  asked  for 
were  allowed  subject  to  the  insertion  to  a 
disclaimer  in  the  Specification  relating  to 
British  Specification  No.  5864  of  1905,  and 
in  consequence  of  this,  the  present  proceed- 
ings were  instituted  for  a  revocation  of  the 
patent. 

The  Specification  relating  to  Hardy's 
patent  is  marked  as  Ex.  A  in  this  case,  and 
the  drawings  show  some  examples  of  forms 
of  construction  of  the  invention.  Specimens 
of  the  petitioners  design  No.  14153  of  1909 
and  No.  14678  of  1910  are  marked  0  and  D 
respectively.  The  only  difference  between 
these  two  lies  in  the  method  of  attachment 
to  the  vertical  wall  of  the  piston.  The 
respondent's  Specification  No.  8018  accom- 
panied with  the  drawings  is  marked  F-L 
I  think  there  can  be  no  doubt  that  both  in 
the  working  principle,  and  general  charac- 
ter of  construction,  the  petitioner's  designs 
and  the  respondent's  patent  are  found- 
ed on  Hardy's  patent.  It  is  material  in 
the  present  case  to  observe  that  the  ball 
valve  in  this  patent  of  1905  is  attached  to 
the  inner  wall  of  the  piston,  and  figure  2 
shows  a  removeable  seating  at  the  bottom  of 
the  valve.  If  the  nuts  are  removed  from  the 
bolts,  the  ball  seat  below  and  the  ball  come 
away.  The  ball  can  be  let  in  either  from 
above  or  below,  and  in  the  type  shown  in 
figure  4,  from  the  side.  In  the  respondent's 
patent  the  ball  valve,  as  it  is  in  Hardy's 
patent,  is  attached  to  the  piston  wall  inside 
the  cylinder.  The  valve  consists  of  the 
body  with  the  screw  plug  underneath,  and 
the  ball  inside  the  body  rests  on  the  plug 
which  is  put.,  in  position  from  below,  and 
whfeh  is  removeable  by  unscrewing  it ;  so 
both  in  Hardy's  patent  and  in  the  peti- 
tioner's design  the  ball  rests  on  a  remove- 
able  seating.  Exhibit  E  a  model  which  has 
been  used  in  this  case  to  show  the  general 
chafticter  of  the  construction  and  principle 


of  the  respondent's  ball  valve.  It  is  not  an 
exact  model,  but  it  shows  the  principle. 
Later,  during  the  case,  a  specimen  of  the 
respondent's  ball  valve,  in  section,  was 
secured  by  Mr.  T hackwell,  the  Assessor, 
and  at  the  request  of  the  respondent's 
Counsel  it  was  marked  as  Ex.  I.  The  peti- 
tioner's designs  <J  and  D  as  already  stated 
are  identical.  Type  C  is  attached  to  the 
inner  wall  of  the  piston  by  2  studs  and 
nuts,  and  type  D  is  attached  to  the  inner 
wall  of  the  piston  by  the  valve  being  screw- 
ed in.  The  ball  valve  consists  of  the  valve 
body,  the  ball  seating  which  is  screwed  in, 
the  ball  which  is  contained  in  a  smaller 
cage,  and  a  screw  plug  which  closes  the 
top  of  the  body.  It  has  been  proved,  and 
it  is  not  disputed,  that  the  petitioner's  ball 
valve  type  Ex.  D  has  been  in  use  on  Indian 
Railways  many  years,  and  long  prior  to 
the  grant  of  Patent  No.  8018  to  the  respond- 
ent, and  the  present  application  for  a  re- 
vocation of  that  patent  is  made  on  the 
ground  that  it  is  of  no  utility  and  that  it  is 
not  a  new  invention,  within  the  meaning 
of  the  patent  law.  The  patent  is  also 
attacked  on  the  ground  that  it  was  antici- 
pated by  Hardy's  patent.  It  is  important, 
therefore,  to  see  the  interpretation  placed 
by  the  Courts  on  the  terms  "  utility," 
"novelty,"  and  "invention."  The  cases 
show  that  in  patent  law  the  term  "utility  " 
is  used,  not  in  the  abstract,  but  in  a  very 
special  sense.  Mere  usefulness  is  not  suffi- 
cient to  support  a  patent.  In  the  case  of 
Youmj  and  Neilson  v.  Rosenthal  &  Co.  (1) 
Grove,  J.,  in  charging  the  Jury  described 
"utility"  as  meaning -an  invention  better 
than  the  preceeding  knowledge  of  the 
trade  as  to  a  particular  article.  As  to  the 
meaning  of  "novelty11  and  "invention,'1  Lord 
Westbury,  in  the  case  of  Harwood  v.  Great 
Northern  Railway  Co.  (2),  said  "you  cannot 
have  a  patent  for  a  well-known  mechanical 
contrivance  merely  when  it  is  applied  in 
a  manner  or  to  a  purpose,  which  is  not 
quite  the  same,  but  is  analogous  to  the  man- 
ner or  the  purpose  in  or  to  which  it  has  been 
hitherto  notoriously  used."  In  citing  this 
rule  in  Rickmann  v.  Thierry  (3)  Lord  Davey 
said  "It  is  not  enough  that  the  purpose  is 
new  or  that  there  is  novelty  in  the  applica- 
tion, so  that  the  article  produced  is  in  that 

(1)  (1884)  1  Pat.  C.  1. 

(2)  (1865)  11  H.  L.  C,  654  at  p.  682;  35  L.  J.  0,  B, 
27,  12  L.  T.  771;  U  W.  R.  1,  11  R  R.  H88;  145  R,  R, 
356, 

(3)  (189C)  U  Pat,  0, 105  at  p,  1J1. 


ioio 


INDIAN  VACUUM  BRAKM  co.  LTD.  v.  &  s.  LUA&D. 


0. 


sebse  new,  but  there  must  be  some  novelty 
in  the  mode  of  application.  By  that  I  under- 
stand, that  in  adopting  the  old  contriv- 
ance to  the  new  purpose,  there  must  be 
difficulties  to  be  overcome,  requring  what 
is  called  invention,  or  there  must  be  some 
ingenuity  in  the  mode  of  making  the 
adoption"  and  Cotton,  L.  J.,  in  Blakey  v. 
Latham  (4)  laid  down  that  to  be  new  in  the 
patent  sense,  the  novelty  must  show  inven- 
tion ;  see  also  Fletcher  Moulton  on  Patents, 
page  21. 

Three  witnesses  have  been  called  on  behalf 
of  the  parties.  Mr.  Cook,  a  District  Carriage 
and  Wagon  Superintendent  on  the  Bengal 
Nagpur     Railway,    and    Mr.    Remfry    an 
Engineer  and  Patent  Agent  on  behalf  of 
the  petitioner,  and  Mr.  Bwye  an  Engineer 
in  the    employment  of    the    Consolidated 
Brake  and  Engineering  Co.,   Ld,  on  behalf 
of  the  respondent.    Mr.  Luard  is  a  Director 
of  this  Company  and  was  the    Managing 
Director  when  Mr.  Bwye  came  out  to  India 
in  1923.    The   evidence  of  Mr.  Cook    and 
Mr.  Remfry,  generally,  speaking  is    to  the 
effect  that  they  cannot  find  any  thing  new  in 
the  respondent's  ball  valve  or  any  improve- 
ment on  that  of  the  petitioner's.    It  is  com- 
mon ground  that  the  principle  is  the  same, 
and  the  valves  function  exactly  alike.  Mr. 
Bwye  says  that  the  essential  difference  be- 
tween the  two  is  the  simplicity  of  the  re- 
spondent's ball  valve  which  has  fewer  parts, 
the  ball  seat  being  combined  with  the  plug. 
I  do  not  think  that  this  in  itself  is  enough 
to  support  a  patent.  Many  cases  are  collect- 
ed in  Fletcher  Moulton  on  Patents,  page  39 
where  it  is  stated  that  patents  for  making 
in  one  piece,  articles,  previously  made  in 
two  or  more  pieces,  have  generally  been 
held  invalid.    I  have  been  unable  to  see 
what  advantage  results  from  this  and  I  can- 
not regard  it  as  an  invention,    Mr.  Luard, 
in  an  affidavit  that  has  been  referred  to, 
says,  in  para.  4  that  his  patent  differs  from 
the     petitioner's  designs  in  two    features 
which  are  claimed   by  him  to  be  of  great 
value.  One  of  these  featuresis  that  the  valve 
seat  can  be  removed  without  first  removing 
that  ball,  and  that  upon  removing  the  valve 
scat  for  the  purpose  of  inspection,  cleaning 
orremoval,  the  ball  is  simultaneously  remov- 
ed.   The  first  part  of  this  statement  sug- 
gests that  the  ball  can  be  left  in  the  valve 
chamber  after    the  valve    seat  has  been 
removed.    As  a  matter  of  fact  it  cannot. 


(4) 


As  socn  as  the  ball  seat  is  removed,  the 
ball  falls  out,  and    the  latter   portion  of 
Mr.  Luard's  statement  shows  that  this  is  so. 
In  my  opinion    there  is  no  substance   in 
the  point  made.    For  the  purpose  of  in- 
specting  or  cleaning   the  valve   seat,    in 
Mr.    Luard's     design,     the     screw    plug 
underneath     is      removed    and  the     ball 
falls    out;    and    in  the   petitioner's    con- 
struction the    screw  plug    at    the  top  is 
removed  and  the  small  cage  containing  the 
ball  is  taken  out.     Even  for  the  purposes 
of  grinding  the  valve  seat,  which   is  done 
according  to  Mr.  Cook  about  once  in  five 
years,  and  according    to  Mr.    Bwye  about 
once  every  year,  it  is  not  necessary  for  the 
valve   seat  in  the   petitioner's  construction 
to  be  taken  out,    The  overhauling   of  the 
ball    valve  is  eo    occasional,   that  if    Mr. 
Luard's  design  showed    any    greater  con- 
venience, which  I  have  been  unable  to  find, 
it  would  not  be  one  of  value.     The  other 
feature  claimed  to  be  valuable  is   that  the 
ball    is  properly  located  within  the   valve 
chamber   without  the  provision  of  a  cage 
which  Mr.   Luard   says  may  possibly    be 
omitted    when  re-  placing  the  parts*      As 
there  is  no  greater  likelihood  of  the  cage 
not  being  re  placed  than  there  is  of  the  ball 
not  being  re-placed  in  the  chamber  in  Mr. 
Luard's  construction,  there  is  no  substance 
in  the  advantage   he  claims  inferentially 
for  his  own  design.    Mr.  Luard  is  mistaken 
if  he  suggests  that  the  cage  is  necessary 
to  keep  the  ball  in  position.    The  evidence 
of  Mr.  Cook  and  Mr.    Remfry  shows  that 
the  absence  of  the  cage  would    make    no 
difference  to  the  working  of  the  valve,  for 
the  ball  must  come  into    position  as  socn 
as  the  screw  plug  at   the  top    is  screwed 
down    properly.      The   cage  is  merely  a 
convenient  receptacle  for  the  ball,  which 
is  taken  out  simply  by  lifting  out  the  cage, 
In  this  connection,  Mr.  Luard  has  made  a 
statement  in    his  amended  specification  to 
which  exception  has,  and  I  think  justly, 
been  taken.    Referring  to  the  petitioner's 
construction  Mr.  Luard  says  *'  in  removing 
the  screw  plug  the   ball  must  be  removed 
with  some    difficulty.'*    If  Mr.  Luard  had 
seen  a  specimen    of  the  petitionBr's   ball 
valve,  it  should  have  been  patent  to  him 
that  the  ball  comes  away   in  the  cage,  and 
that  his  statement  was  misleading.    With 
reference  then  to  the  special  features  in 
patent  No.  8018  mentioned  by  Mr.  Luard,'  I 
am  unable,  for  the  reasons  I  have  given,  to 
take  his  view  of  their  valve,    From  the 


[92 1.  0. 1926J 


VACCBM  BJUK^  co.  L^TD,  v.  E.  s. 


lOli 


point  of  view  of  convenience,  it  has  been 
Baid  on  behalf  of  the  petitioner  that  it  is 
much  easier  to  get  at  the  screw  plug  when 
placed  at  the  top  of  the  ball  valve,  as  in  the 
petitioner's  designs,  than  when  it  is  placed 
underneath,  and  is  practically  unseen,  as 
in  patent  No  8018.  Both  Mr.  Cook  and  Mr. 
Remfry  say  this,  but  Mr.  Bwye  thinks  it  is 
equally  easy  in  either  case.  Such  judg- 
ment as  I  am  able  to  form  on  this  particu- 
lar point,  does  not  lead  me  to  agree  with 
Mr.  Bwye.  There  is  one  more  point  in  Mr. 
B  wye's  evidence  I  shall  refer  to  before  stating 
my  conclusions  in  this  case*  Mr,  Bwye  says 
that  welding  the  ball  valve  after  it  has 
been  fixed  to  the  -piston  wall,  eliminates 
a  possible  source  of  leakage  of  air  at  the 
place  of  attachment,  I  do  not  think  it  can 
be  contended  that  there  is  any  invention  in 
this.  Mr.  Bwye  concedes  there  is  no 
novelty  in  welding,  and  there  can  be  no 
question  that  welding  could  be  applied 
equally  well  in  the  case  of  the  petitioner's 
ball  valves  if  it  were  considered  an  advant- 
age. The  possible  consequences,  however, 
of  fixing  the  ball  valve  in  the  manner 
described  by  Mr.  Bwye,  preparatory  to  the 
welding  have  been  criticised  as  serious. 
Mr.  Bwye  says  that  the  ball  valve  is 
attached  to  the  vertical  wall  of  the  piston 
by  drilling  a  hole  in  the  piston  wall  to 
receive  the  turned  portion  of  the  valve, 
and,  as  the  whole  is  drilled  smaller  than 
the  turned  portion  of  the  valve,  it  is 
necessary  to  drive  the  valve  into  position 
by  the  use  of  hammer,  after  which  the 
welding  is  done.  When  at  the  Assessor's 
instance  he  was  asked  what  would  happen 
if  a  considerable  degree  of  force  were  used, 
he  said  this  would  not  be  permitted;  but 
that  if  a  considerable  degree  of  force  was 
used,  there  would  be  every  likelihood 
of  injuring  the  piston  wall.  Mr.  Bwye's 
evidence  further  shows  that  if  for  any 
cause  it  becomes  necessary  to  remove  the 
valve  body  the  welding  would  have  to  be 
chipped  away  by  hammer  and  chisel  and 
the  ball  valve  driven  out,  and  the  effect 
of  his  evidence  is  that  there  would  be 
some  slight  damage  to  the  inside  of  the 
piston  wall,  but  he  says  that  it  would  not 
be  material  if  reasonable  care  were  used. 
Mr,  Remfry  says  that  injury  to  the  piston 
wall  would  mean  injury  to  the  piston 
itself.  Mr.  Cook  was  not  cross-examined 
on  this  question.  The  evidence  altogether 
leaves  the  impression  on  my  mind  that  the 
process,  taken  as  a  whole,  is  not 


unattended  with  danger  to  the  piston.  I 
do  not  find  in  Mr.  Luard's  specification  or 
aflidavit,  a  claim  to  any  speciality  in  the 
process,  and  it  does  not  impress  me  as  a 
valuable  feature  of  the  patent.  As  stated 
before  the  evidence  shows,  and  it  is  not 
disputed,  that  type  D  of  1910  of  the  petition- 
er's designs  has  been  in  use  on  Indian 
Railways  for  many  years  prior  to  the  grant  of 
patent  No.  8018.  Mr.  Cook  has  many  years1 
practical  experience  of  Vacuum  Brakes  and 
is  well-acquainted  with  the  construction  and 
working  of  the  petitioner's  ball  valve  type 
D  and  he  is  a  witness  unconnected  in  any 
way  with  the  parties.  He  was  unable  to 
find  anything  new,  or,  from  the  point  of 
view  of  practical  utility,  anything  more 
useful  in  Mr.  Luard's  patent.  After  giving 
my  best  consideration  to  the  several  matters 
on  which  evidence  has  been  given  and  the 
question  raised  in  this  case  with  reference 
to  "both  Mr.  Luard's  patent  and  the  petition- 
er's design,  I  have  come  to  the  conclusion 
that  in  no  respect  is  the  patent  No.  8018  an 
improvement  on,  or  more  useful  or  better 
than,  the  petitioner's  design.  In  my  judg- 
ment it  is  not,  as  claimed,  an  improved 
Vacuum  Brake  Piston  and  so  far  as  I  can 
see  there  is  nothing  new,  in  the  sense  of 
novelty,  in  the  patent,  and  it  discloses  no 
invention.  Furthermore,  in  my  view,  in 
material  features,  the  patent  was  anticipat- 
ed by  Hardy's  patent.  Applying  the 
principles  laid  down  in  the  cases  cited,  I 
am  of  opinion  that  the  patent  No.  8018 
of  the  21st  March  1922  granted  to  Mr. 
Luard  the  respondent  with  the  amended 
specification  relating  thereto,  ought  to  be 
revoked,  and  I  give  judgment  accordingly 
in  favour  of  the  petitioner.  The  respond- 
ent must  pay  the  petitioner's  costs  in 
these  proceedings  The  Taxing  Officer 
will  on  taxation  fix  what  allowance  can 
reasonably  be  made  to  the  expert  witnesses 
in  the  suit,  viz.,  Messrs.  Cook,  Remfry  and 
Bwye  for  qualifying  themselves  for  the 
purposes  of  giving  evidence  and  also  for 
their  attendance  in  Court ;  the  amount  to  be 
fixed  by  the  Taxing  Officer  in  his  discretion. 
Under  s.  35  of  the  Patents  and  Designs  Act 
I  fix  the  remuneration  of  the  Assessor  at 
Rs.  100  per  diem.  This  item  will  not  be 
chargeable  to  the  parties. 
R.  L,  Patent  revoked. 


SINGH  RAM  V.  KALA. 


1012 

LAHORE  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1460  OF  1925. 

December  21,  1925. 

Present : — Mr.  Justice  Addison. 

SINGH  RAM— PLAINTIFF— APPELLANT 

versus 

KALA  AND  OTHERS— DEFENDANTS — 
RESPONDENTS. 

Custom— Kurhi  kamini  cess,  nature  of— Liability  of 
non-proprietary  owners  of  houses— Burden  of  proof— 
Suit  for  declaration  that  cess  not  payable — Jurisdiction 
of  Civil  Courts — Wajib-ul-arz  entnes,  value  of, 

Kurhi  kamini  is  a  ce&s  of  the  nature  of  a  house  or 
ground  rent  and  not  in  the  nature  of  a  hearth  cess. 
lp,  1012,  col.  2] 

Dewak  Ram  v,  Kour  Pirthi  Singh,  74  P  R  1£79, 
Natha  v.  Jai  Ram,  21  P.  R  1888,  Fazul  v.  Samandar 
Khan,  49  P.  R  1S91  and  Raj  Sarup  v  Hardawan,  95 
P.  R.  1907;  120  P.  L.  R.  1908;  141  P.  W.  R.  1907,  referred 
to. 

The  burden  of  proving  that  kurhi  kamini  dues  are 
leviable  from  such  non-proprietary  lesidents  of  the 
village  as  are  owners  of  the  houses  and  the  sites  hes 
on  the  person  seeking  to  recover  them  [p  1013,  col.  1  ] 

A  suit  for  a  declaration  by  a  person  that  he  is  not 
liable  to  pay  kurhi  kamini  dues  is  cognizable  by  a 
Civil  Court,  [ibid.] 

Sheikh  Muhammad  v.  Ilabib  Khan,  G7  P  R.  1C05; 
113  P.  L.  R.  iy05,  94  P.  W  R  1905,  followed. 

Entries  in  wajib-ul-arz  as  to  the  liability  for  village 
lues  do  not  bind  any  one  except  the  proprietors  who 
are  parties  to  them  [p  1013,  col  2  ] 

Arur  Singh  v.  Dal  Singh,  40  P  R.  1870  and  Azmut 
Ah  Khan  v  7/arnam,  61  P.  R.  1875,  referred  to 

Second  appeal  from  a  decree  of  the  (Senior 
Sub- Judge,  Rohtak,  dated  the  15th  July 
1924,  reversing  that  of  the  Fourth  Class,  Sub- 
Judge,  Rohtak,  dated  the  llth  June  1924. 

Mr.  Shamair  Chand,  for  the  Appellant. 

Mr.  G.  S.  Salariya,  for  the  Respondent. 

JUDGMENT.— The  defendants  who 
are  jat  lambardars  of  village  Bidhlan  in 
the  Rohtak  Tahsil  sued  four  mahajans  of 
the  same  village  in  the  Revenue  Courts  for 
recovery  of  kurhi  kamini  cesses  and 
obtained  decrees.  Each  of  these  mahajans 
then  filed  a  suit  for  declaration  that  he  was 
not  liable  to  pay  kurhi  kamini  as  he  had 
actually  purchased  his  houses  and  the  sites 
thereunder  and  was  not  merely  a  culti- 
vator or  kamin  to  whom  the  sites  have  been 
given  for  residence.  It  was  found  by  the 
Trial  Court  that  such  suits  were  cogniz- 
able by  the  Civil  Courts  and  that  the 
plaintiffs  were  the  purchasers  of  their 
houses  and  were  not  holding  the  sites  as 
kamins  or  cultivators.  It  then  went  on  to 
find  that  the  burden  of  proof  was  upon  the 
proprietors  of  the  village  to  establish  that 
those  who  purchased  houses  were  liable  to 
pay  this  cess  which  was  in  the  nature  of  a 
ground  rent  and  which  would  thus  be 
ordinarily  recoverable  from  those  who  were 


[92  L  0. 19261 


given  permission  to  occupy  sites  as  kamina 
or  cultivators.  The  lower  Appellate  Court 
also  held  that  the  suits  were  cognisable  by 
the  Civil  Courts  and  that  the  plaintiffs  were 
out-and-out  purchasers  of  their  houses  and 
sites,  but  it  held  that  as  there  was  a  custom 
of  payment  of  kurhi  kamini  cesses  in  the 
village,  it  was  incumbent  upon  the  plaintiffs 
to  establish  that  they  were  not  liable.  It 
accordingly  remanded  the  suit  for  a  re- trial 
on  this  issue  after  it  changed  the  burden  of 
issue.  The  Tiial  Court  then  held  again 
that  this  cess  was  in  the  nature  of  a  ground 
rent  and  that  the  defendants  had  failed  to 
prove  that  they  had  ever  realised  it  from 
the  plaintiffs.  It,  therefore,  again  decreed 
the  suite.  The  lover  Appellate  Court  then 
accepted  the  appeals  and  dismissed  the 
suits  holding  that  the  cess  in  question  was 
in  the  nature  of  a  hearth  cess  and  not  of 
ground  rent  and  that  it  applied  to  all 
persons  who  were  not  proprietors  of  the 
village  estate,  that  is,  village  agricultural 
land.  It  brushed  aside  the  fact  that  the 
defendants  had  failed  to  prove  its  collection 
from  the  plaintiffs  by  noting  that  the 
defendants  said  that  the  accounts  were 
kept  by  the  village  mahajans  who  did  not 
produce  them.  Certificates  were  obtained 
from  1  he  lower  Appellate  Court  in  order  to 
allow  second  appeals  to  be  preferred  to  this 
Court  and  they  are  now  before  me. 

In  para.  248  (/)  of  Rattigan's  Digest  of 
Customary  Law  kurhi  kamini  is  defined  as 
a  house  or  ground  rent  levied  from  non- 
proprietor  residents.  It  was  held  in  Dewak 
Ham  v.  Kour  Pirthi  Singh  (1)  that  kurhi 
kamini  dues  were  of  the  same  nature  as 
house  or  ground  rent.  In  that  case  there 
was  a  finding  that  such  rent  had  been  paid 
in  the  past  by  the  persons  who  were  sued. 
Again  in  Natha  v.  Jai  Ram  (2)  it  was  held 
that  this  cess  must  be  regarded  as  ground 
rent.  The  question  had  to  be  decided  in 
order  to  hold  as  to  which  Court  should 
hear  the  appeal.  In  Fallows  Dictionary 
kurhi  is  defined  as  a  household  or  family 
or  house  tax  while  'kamin'  is  described -as 
a  menial  servant.  The  meaning  of  the 
phrase,  therefore,  is  a  house  tax  or  rent  on 
menial  servants  according  to  the  Dictionary, 
It  was  held  in  Fazul  v,  Samundar  Khan 
(3)  that  the  cess  called  kamiana  was  a  due 
customarily  leviable  from  the  kamins  of  the 
village  and  a  suit  for  its  recovery  wan 

(1)  71  P.  R,  1870. 

(2)  21  P.  R,  1888. 
(3  49  J',  R,  1881, 


[92  L  0*   1926]  BAOH0BTR  SINGH  r. 

cognizable  by  the  Revenue  Court.  In  R*] 
Samp  v,  Hardawari  (4)  kurhi  kamini  was 
held  to  be  in  the  nature  of  a  hearth  cess 
and  to  be  the  equivalent  of  the  door  cess  or 
haqqbuha  of  the  Western  Districts,  It  was 
further  held  that  a  suit  for  its  recovery  lay 
in  the  Revenue  Courts  as  was  done  in  the 
cesses  now  before  me.  This  ruling,  how- 
ever, makes  no  allusion  to  the  earlier  rulings 
discussed  by  me  where  it  was  laid  down 
that  this  cess  was  in  the  nature  of  a  house 
or  ground  rent.  The  Dictionary  also  was 
not  consulted,  In  any  case  this  ruling 
is  an  authority  for  the  view  that  the  suits 
for  the  recovery  of  this  cess  were  properly 
brought  in  the  Revenue  Courts. 

In  Sheikh  Muhammad  v.  Habib  Khan  (5), 
however,  it  was  held  that  a  suit  for  a  declara- 
tion that  kamiana  dues  were  not  recoverable 
from  such  residents  of  a  village  as  were 
owners  of  their  houses  did  not  come  under 
cl.  0)  of  s.  77  of  the  Tenancy  Act  and  was 
cognizable  by  the  Civil  Courts.  This  ruling 
has  never  been  dissented  from  and  must  be 
followed.  Though,  therefore,  the  lambardars 
can  sue  in  the  Revenue  Courts  for  the 
recovery  of  this  cess  the  person  proceeded 
against  can  bring  a  suit  for  declaration  in 
the  Civil  Courts  whatever  the  value  of  such 
declaration  may  be  to  him 

Following  the  earlier  rulings,  therefore, 
and  the  Dictionary  meaning  of  the  words  I 
hold  that  kurhi  kamini  is  a  cess  of  the 
nature  of  a  house  or  ground  rent.  This 
view  was  also  accepted  by  Mr.  Joseph, 
the  Settlement  Officer  of  that  District,  in 
1910.  He  held  that  a  proprietor  who 
became  an  owner  of  a  house  by  virtue  of 
purchase  was  exempt  from  its  payment.  A 
different  view  was,  however,  taken  by  the 
Financial  Commissioner  who,  following 
certain  revenue  decisions,  held  that  it  was 
a  hearth  tax.  There  seems  to  me  to  be  no 
foundation  oniwhich  this  view  can  be  based. 
In  these  circumstances  I  hold  that  the 
burden  of  proving  that  the  plaintiffs  are 
liable  to  pay  this  cess  lay  upon  the  defend- 
ants, seeing  that  it  is  admitted  that  the 
plaintiffs  are  out-and-out  purchasers  of 
their  houses  and  sites  inside  the  village.  The 
words  ^kurhi  kamini^  cannot  be  taken  to 
paean  a  tax  designed  to  show  the  over- 
lordship  of  the  proprietors  of  the  agricul- 
tural land  as  against  all  other  residents  in 

'A)  95  P.  R.  1907,  120  JP   L   R  1908;  141  P.  W  R 


(5)  67  P.  R,  1905;    113  P.  Lr,  R.    1905,  91  P,    W.  R, 
JW, 


NATHU  MAL.  1013 

'  t  > 

the  village  but  only  a  kind  of  ground  fent 
recoverable  from  kamins  and  cultivators  to 
whom  sites  have  been  given  for  as  long  as 
they  remain  in  the  village,  ' 

It  is  true  that  the  names  of  the  plaintiff^ 
ancestors  who  purchased  the  sites  and  houses 
before  i860  are  recorded  in  the  list  of  kurhi 
kamini  payers  in  the  wajib-ul-araiz  of  1880 
and  1909  It  was  held,  however,  in  Arur 
Singh  v  Dal  Singh  (6)  that  such  entries  do 
not  bind  any  one  except  the  proprietors 
who  are  parties  to  them.  Similarly  an 
entry  in  the  wajib-ul-arz  was  held  not  to  be 
sufficient  to  base  a  claim  for  grazing  dues 
in  Azmut  Ah  Khan  v.  Harnam  (7).  It  is 
also  admitted  that  there  is  no  proof  in  the 
present  case  that  the  plaintiffs  ever  paid  the 
dues  m  question.  That  is  very  good 
evidence  against  the  custom  that  they  are  : 
liable  to  pay  it.  It  was  not  sufficient  for 
the  defendants  merely  to  say  that  the 
accounts  were  kept  by  the  mahajans  who 
did  not  produce  them.  Even  if  the 
accounts  were  written  up  by  the  mahajans 
which  also  has  not  been  established,  the 
book  in  which  the  entries  were  made  would 
be  kept  by  the  lambardars.  Besides,  the 
usual  person  to  keep  such  accounts  would 
be  the  patwari.  The  burden,  therefore, 
being  upon  the  defendants  to  prove  that 
the  plaintiffs  were  liable  to  pay  this  cess,  it 
is  clear  that  they  have  failed  to  prove  it  and 
it  was  scarcely  disputed  that  this  would  be 
so  if  the  burden  of  proof  was  upon  the 
defendants  I  hold  that  no  custom  has 
been  established  to  the  effect  that  the 
plaintiffs  are  liable  to  pay  the  cess  in 
question  and  accepting  the  appeals  I  decree 
the  plaintiffs'  suits  with  costs  in  this  Court. 

R.  L.  Appeal  accepted, 

(6)  40  P  R  1879. 

(7)  61  P  R.  1875, 


ALLAHABAD  HIGH  COURT. 

SPaivY  COUNCIL  APPEAL  No.  35  OP  1925. 

January  7,  1926. 

P  Present. — Sir  Grimwood  Hears,  KT., 
Chief  Justice,  and  Mr.  Justice  Lindsay, 
RAGHUBIR  SINGH  AND  OTHERS 
— APPLICANTS 

versus 

NATHU  MAL— OPPOSITE  PART*. 
Civil   Procedure   Code  (Act    V   of    1908),   a     109, 
O.XLVII.r.  1 —Substantial  question  of  law— Certifi- 
cate /or  appeal  to  Pnvy  Counwl— Review— "Any  othir 


1014 


BAGHUBIft  SINGH  1>,  NATHU  UAL, 


I.  0. 1926) 


tujjicient  reason",  me&nino  of— Fraud  and  undue  in* 
/fttence. 

'  Order  XL VII,  r.  1  of  the  G  P.  0.  must  be  read  as 
in  itself  definitive  of  the  limits  within  which  review 
of  a  decree  or  order  18  permitted  and  the  words  "any 
other  sufficient  reason"  mean  grounds  at  least 
analogous  to  those  specified  in  the  rule.  Fraud  and 
undue  influence  do  not  constitute  grounds  analogous 
to  those  specih'ed  in  O.  XLV1I,  r  1. 

Chhanu  Ram  v.  Neki,  72  Ind.  Cas.  566;  49  I  A.  144; 
30  M  L.  T.  295,  26  0.  W.  N.  697,  41  P.  L  K.  (P.  G  ) 
1922;  3  P  L.  T,  435;  A.  I.  R.  1922  P  C  112;  16  L  W. 
37, 17  P.  W.  R.  1922;  3  L.  127,  43  M.  L.  J.  332,  24  Bom 
L.  R  1238;  4  U.  P.  L.  R.  (P,  0.)  99,  36  G.  L.  J  459 
<T.  C.),  followed. 

Where  there  is  a  decision  of  the  Privy  Council  itself 
which  seems  to  settle  the  law  on  a  point,  the  case  can- 
3iot  be  certified  as  a  fit  one  for  appeal  to  the  Pi  ivy 
Council  as  involving  a  substantial  qiiestion  of  law 

Application  for  leave  to  appeal  to  His 
Majesty  in  Council. 

Mr.  S.  C.  Goyle,  for  the  Applicants. 

Mr.  Mushtaq  Ahmad,  for  the  Opposite 
Party. 

JUDGMENT. — This  is  an  application 
for  leave  to  appeal  to  His  Majesty  in  Coun- 
cil against  an  order  of  a  Bench  of  this 
Court  passed  in  its  revisional  jurisdiction. 
It  appears  that  in  the  Court  of  first  instance 
a  suit  was  brought  against  one  Manohar 
Singh,  The  17th  of  November  1923  was 
fixed  for  the  settlement  of  issues.  Before 
that  date  Manohar  Singh  came  into  Court 
and  filed  a  written  statement  in  which  he 
stated  that  he  was  willing  to  confess  judg- 
ment and  prayed  that  he  might  be  relieved 
from  the  costs.  The  plaintiff  consented  to 
this  arrangement  and  on  the  13th  of  No- 
vember 1923  a  judgment  was  given  as  on 
a  compromise. 

On  January  26,  Ifc24,  the  defendant 
Manohar  Singh  filed  an  application  for  re- 
view before  the  Subordinate  Judge.  The 
Subordinate  Judge  went  into  the  matter 
and  after  having  recorded  certain  evidence 
he  gave  effect  to  the  application  and 
re-called  his  first  decree.  Against  this 
order  of  the  Subordinate  Judge,  an  appeal 
was  brought  to  this  Court  which  was  filed 
as  a  first  appeal  from  order. 

It  is  true  that  under  the  provisions  of 
O.  XLIII,  r.  (1)  cl.  (w)  an  appeal  lies  against 
an  order  under  r.  4,  O.  XLVII  granting  an 
application  for  review.  A  reference  to  r.  7 
of  0.  XLVII,  however,  shows  that  an  appeal 
does  not  lie  in  all  cases  in  which  the 
application  for  review  has  been  granted, 
An  appeal  is  only  entertainable  when  the 
grounds  specified  in  O.  XLVII,  r.  7  (1)  had 
been  established. 

The  learned  Judges  of  this  Court   were 


of  opinion  that  the  appellant  had  not  shown 
that  he  was  entitled  to  appeal  against  the 
order  of  the  Court  of  first  instance,  inas- 
much as  he  was  not  able  to  show  that  the 
grounds  specified  in  O.  XLVII,  r.  7  were 
present  in  the  case.  The  learned  Judges, 
however,  proceeded  to  treat  the  petition  of 
appeal  as  a  petition  for  revision,  and  came 
to  the  conclusion  that  the  Subordinate 
Judge  had  entertained  the  application  for 
review  without  jurisdiction.  They  set  aside 
his  order  by  their  judgment  dated  the  7th 
of  July  li*25.  It  is  against  this  order  of  the^ 
Court  passed  in  revisional  jurisdiction  that 
the  present  application  for  leave  to  appeal 
has  been  filed. 

It  is  clear  that  the  applicant  for  leave  to 
appeal  to  His  Majesty  in  Council  has  not  got 
an  absolute  right  of  appeal  under  the  pro- 
visions of  the  Code.  The  case  is  one  which 
falls  within  s.  109  (c)  of  the  0.  R  C.,  and 
it,  therefore,  lies  upon  the  applicant  to  es- 
tablish that  the  case  is  a  fit  one  for  appeal 
to  His  Majesty  in  Council.  It  may  be  men- 
tioned moreover  that  the  valuation  of  the 
suit  and  the  valuation  taken  in  this  Court 
was  Us.  8,000  only. 

We  are  asked  to  certify  that  this  is  a 
case  which  is  fit  for  appeal,  on  the  ground 
that  it  raises  a  substantial  question  of  law 
of  general  importance.  In  our  opinion  it 
does  not  do  anything  of  the  sort.  The 
Judges  of  this  Court  had  before  them  the 
question  as  to  whether  the  Subordinate 
Judge  had  authority  and  jurisdiction  to 
entertain  the  application  for  review  011  the 
grounds  of  fraud  and  undue  influence.  On 
their  interpretation  of  the  law  as  laid  down 
in  O.  XLVII,  r.  1  they  were  of  opinion 
that  these  were  no  grounds  on  which  it 
was  competent  to  the  Subordinate  Judge 
to  entertain  the  application  for  review. 
They  have  followed  a  decision  of  this  Court 
and  also  a  decision  of  their  Lordships  of 
the  Privy  Council  in  Chhajju  Ham  v.  Neki 
(1).  In  that  case  it  was  held  that  O.  XLVII, 
r.  1  of  the  C.  P.  C.  must  be  read  as  in 
itself  definitive  of  the  limits  within  which 
review  of  a  decree  or  order  is  now  permitted 
and  the  words  "any  other  sufficient  reason" 
mean  grounds  at  least  analogous  to  those 
specified  ia  the  rule.  The  Judges  of  this 
Court  were  of  opinion  that  fraud  or  undue 

(1)  72  Ind.  Cas  566;  49  I  A.  144;  30  M.  L  T,  295: 
26  C.  W,  N.  697;  41  P  L  R,  (P.  C  )  1922;  3  P.  L  T. 
435,  A.  I  R  1922  P.  C  112;  16  L.  W.  37;  17  P  W  R. 
1922;  3  L  127;  43  M.  L.  J.  332;  24  Bom.  L.  R.  1238:  4 
U.  P.  L.  R.  (P.  C.)  99;  36  C.  L.  J.  459  (P,  0,). 


(92 1.  0. 1926] 


FIRM  BttDHD  MAL  PARMA  NAN'D  f,  QOKAL  OHAND, 


1015 


influence  did  not  constitute  grounds  an- 
alogous to  those  specified  in  O.  XLVII,  r.  1, 
Being  of  opinion,  therefore,  that  the  Sub- 
ordinate Judge  acted  without  jurisdiction 
they  set  aside  his  order. 

It  seems  to  us  no  question  of  law  is  in- 
volved at  all  for  the  law  has  already  been 
settled  in  the  sense  adopted  by  the  learn- 
ed Judges  of  this  Court.  We  have  just 
mentioned  the  decision  of  their  Lordships 
of  the  Privy  Council  which  seems  to  us  to 
settle  the  law  on  the  point.  No  case  has, 
therefore,  been  made  out  for  appeal  to  His 
Majesty  in  Council  and  we,  therefore,  dismiss 
this  application  with  costs  including  fees 
on  the  higher  scale. 

N.  H.  Application  dismissed. 


LAHORE  HIGH  COURT* 

FIRST  CIVIL  APPEAL  No.  1504  OF  1924. 

January  7,  1926. 
Present: — Mr.  Justice  Campbell  and 

Mr.  Justice  Zafar  Ali. 

FIRM  BUDHU  MAL  PARMA  NAND— 

PLAINTIFFS — APPELLANTS 

versus 
QOKAL  CHAND  AND  OTHEKS—  DEFENDANTS 

— RESPONDENTS. 

Negotiable  Instruments  Act  (XXVI  of  1881),  s  76 
(d) — Hundi-  —  Presentation — Hunch  in  lieu  of  previous 
debts  inadmissible — Original  cause  of  action  an  basis 
of  claim 

When  one  and  the  snme  person  is  the  drawer  and 
the  drawee  of  a  hundi  no  presentation  of  hundi  on 
due  date  is  legally  neeessai  y  [{)  1015,  col  2  ] 

Pachkaun  Lai  v.  Mul  Chand,  Go  Ind  Gas  503,  44 
A  554,  20  A.  L.  J.  437,  A  I  K.  1922  AIL  279,  fol- 
lowed. 

Where  a  hundi  is  executed  in  lieu  of  previous  debts 
and  tha  hundi  is  inadmissible  in  evidence  foi  want  of 
proper  stamp  the  plaintiff  can  fall  back  upon  the 
original  cause  of  action  [p  1016,  col  1  ] 

Firm  Rahmat  Ah-Muhammad  Faizi  v  Firm  Dewa, 
Singh-Man  Singh,  75  Ind.  Cas  827,  4  L  151,  A  I  B. 
1923  Lah.  396,  5  L.  L  J  361,  referred  to 

First  appeal,  under  s  39  of  Act  VI  of 
1918,  from  an  order  of  the  Sub- Judge,  First 
Class,  Ambala,  dated  the  30th  May  192 1. 

Pandit  Sheo  Narain,  R  B,%  and  Messrs. 
Shamair  Chand  and  Sagar  Chand,  for  the 
Appellant. 

JUDGMENT.— The  parties  to  this  suit 
are  the  Firm  Budhu  Mai  Parma  Nand  plaint- 
iffs and  (1)  Gokal  Chand,  (2)  Hari  Chand, 
(3)  Puran  Chand  and  (4,  5  and  6)  the  three 
minor  sons  of  Gokal  Chand,  defendants. 
The  suit  was  based  on  three  hundis  ail 
dated  the  4th  June  1922,  (1)  for  Rs.  2,500 
due  after  245  days,  (2)  forRs.  2,500 


after  355  days  and  (3)  for  R*.  250  payable 
after  300  days.  The  suit  was  instituted  on 
the  29th  May  1923. 

The  lower  Court  dismissed  the  suit  on 
the  grounds  that  there  was  no  proper  pre- 
sentation of  the  first  two  hundis  on  the 
dates  of  maturity,  that  the  third  hundi  was 
not  properly  stamped  and  so  was  inadmis- 
sible in  evidence  and  that  the  plaintiffs 
could  not  fail  back  upon  the  original  con- 
sideration for  it,  because  the  plaintiffs  in- 
tended the  hundi  to  be  an  absolute  pay- 
ment of  the  previous  debt 

In  appeal  it  is  argued  in  respect  of  the 
first  two  hundis  that  the  presentation  was 
not  necessary  because  the  drawers  were 
themselves  the  drawees.  These  hundis 
were  signed  by  Hari  Ohand  for  himself 
and  Gokal  Chand  and  by  Puran  Chand 
and  they  were  drawn  upon  Janki  Das- 
Baishambar  Das.  The  defendants  Gokal 
Chand  and  Hari  Chand  pleaded  that  they 
themselves  were  the  sole  owners  of  the 
Firm  Janki  Das-Bishambar  Das.  Puran 
Chand's  plea  was  that  he  signed  the  hundis 
merely  as  a  witness,  a  point  which,  as 
judgment  will  show,  is  yet  to  be  decided. 

We  agree  with  the  findings  of  the  lower 
Court  that  the  hundis  were  not  presented 
but  it  was  held  in  Pachkauri  Lai  v.  Mul 
Chand  (I)  that  when  the  drawer  and  the 
drawee  of  a  hundi  are  the  same  person  no 
presentation  on  due  date  is  necessary  as 
from  the  nature  of  the  case  the  drawer 
cannot  suffer  damage  from  the  want  of 
such  presentation  and  thus]  s.  76,  cl.  (d) 
of  the  Negotiable  Instruments  Act  applies. 

The  learned  Sub-Judge  has  observed  in 
his  judgment  that  the  plaintiffs  did  not 
rely  on  s.  76  (d)  and  did  not  show  that  the 
defendants  could  not  suffer  any  damage 
owing  to  non-presentation  ,  but  it  seems 
to  us  that  the  inability  of  the  drawer  to 
suffer  damage  is  obvious  and  that  it  was 
not  necessary  for  the  plaintiffs  to  make  a 
specific  reference  in  their  pleas  to  s.  76  (d). 
We  hold  on  the  first  issue  that  no  presenta- 
tion of  the  hundis  was  necessary. 

As  regards  the  third  hundi  for  Rs.  250 
we  again  disagree  with  the  learned  Senior 
Subordinate  Judge  who  correctly  stated 
that  it  is  a  question  of  fact  to  be  decided 
in  each  particular  case  whether  the  parties 
intended  the  subsequent  hundi  to  be  an 
absolute  or  a  conditional  payment  of  the 
original  debt,  and  that  the  presumption 

(1)  66  IndJCas.  503,  44  A,  554,  2Q  A,  L   J.  437;  A  I 
All.  279,  *   * 


1016 


In  re  LALCHAND  DEOOMAL. 


[92  L  0. 1926] 


was  that  the  effect  of  giving  or  taking  of 
a  bill  or  note  was  that  the  debt  was  condi- 
tionally paid.  The  learned  Subordinate 
Judge  considered  that  this  presumption 
was  rebutted  in  the  present  case  by  the 
fact  that  previous  promissory  notes  for  the 
original  debt  were  returned  to  the  defend- 
ants. According  to  the  plaintiffs'  state- 
ment in  the  lower  Court  which,  was  ad- 
mitted by  the  defendants  matters  commenc- 
ed by  two  loans  by  the  plaintiffs  to  the 
defendants  as  proprietors  of  the  Firm  Janki 
Das-Bishambar  Das  the  first  of  Rs.  4,000 
and  the  second  of  Rs.  6,000.  Promissory 
notes  were  taken  and  the  defendants  made 
certain  payments  both  of  interest  and  of 
principal.  On  the  4th  June  1922  Rs.  5,250 
remained  due  from  the  defendants  and 
they  received  back  the  promissory  notes 
and  executed  the  hundis  in  suit  according 
to  which  they  were  to  pay  up  the  amount 
within  the  period  fixed  in  ths  hundis.  In 
our  opinion  the  principles  of  law  applicable 
are  laid  down  in  Firm  Rahmat  Ali-Muham- 
Tnad  Faizi  v.  Firm  Dewa  Singh-Man  Singh 
(2)  and  we  think  that  the  learned  Subor- 
dinate Judge  has  overlooked  the  impro- 
bability of  the  plaintiffs  agreeing  to  take  a 
mere  piece  of  waste  paper  as  an  absolu  te  pay- 
ment of  a  portion  of  theirdebt.  The  intention 
of  the  parties  seems  to  us  to  have  been  to 
grant  time  to  the  defendants  in  lieu  of  mak- 
ing them  liable  on  promissory  notes  payable 
on  demand.  We  hold,  therefore,  on  issue 
No.  11  that  the  plaintiffs  can  revert  to  the 
original  loan  and  make  it  the  basis  of 
their  claim  in  respect  of  Rs.  250  of  the 
third  hundl. 

The  suit  has  been  determined  by  the 
lower  Court  on  these  who  preliminary 
points.  We  accept  the  appeal  and  setting 
aside  the  judgment  of  the  lovier  Court  we 
remand  the  suit  for  a  fresh  decision  on  the 
other  issues  under  0.  XLI,  r.  23,  C.  P.  C. 
The  stamp  on  appeal  will  be  refunded  and 
costs  will  be  costs  in  the  cause. 

The  question  whether  the  suit  was  pre- 
mature or  unduly  precipitate  in  regard  to 
the  second  hundi  payable  after  355  days 
and  the  effect  of  such  being  the  case  re- 
mains open.  The  above  order  applies  only 
to  the  three  defendants  Gokal  Chand,  Hari 
Chand,  and  Puran  Chand,  since  before  us 
the  plaintiffs  have  withdrawn  their  appeal 
against  the  three  minors  Miwan  Mai,  Brij 

(2)  75  Ind.  Oaa,  827;  4  L,  151;  A,  I,  R.  1923  Lah,  396- 


Lai,  and  Bihari  Lai,  and  PO  far  as  they  are 
concerned  the  dismissal  of  the  suit  by  the 
Trial  Court  will  stand. 

Appeal  accepted. 


R.  L. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS  CIVIL  APPEALS  Nos.   18  AND 

291  OP  1924. 

February  3,  1925. 

Present: — Mr.  Kennedy,  J.   0. 

In  re  LALCHAND  DEOOMAL— 

INSOLVENT. 

Trusts  Act  (II  of  ]882),  ss.  J,  6— Trust  funds  lent  to 
merchant —Merchant,  whether  trustee — Insolvency  of 
merchant- -Trust)  pomtion  of. 

Whcie  a  tiustoe  of  a  charitable  fund  lends  the 
trust  funds  to  a  mei chant,  the  latter  does  not  hold 
the  funds  as  a  trustee  and  if  lie  happens  to  become  an 
insolvent  the  trust  must  rank  as  an  oidinary  ci editor 
of  the  insolvent  in  the  insolvency  proceedings 

Mr.  Shrikishindas  Lulla,  for  the  Official 
Receiver. 

Mr.  Hassumal  M.  Gurbaxam,  for  the  Op* 
ponent. 

JUDGMENT.— If  the  facts  are  truly 
stated  it  is  a  sad  case.  That  seems  to  be 
quite  clear.  The  facts  slated  are  that  Mohan- 
das wished  to  create  a  charity  in  favour 
of  cows.  For  that  purpose  Mohandas  set 
aside  Rs.  2,000  He  invested  this  Rs.  2,000 
with  the  insolvent  and  interest  on  it  was 
to  be  paid  every  month  and  applied  by 
the  father  or  the  eon  Hassanand  for  feed- 
ing cows,  that  is  to  say,  to  charity.  Shortly 
before  his  insolvency  the  insolvent  paid  off 
this  Rs.  2,000  in  the  following  way. 

He  sold  a  certain  property  to  the  mort- 
gagee. That  property  was  sold  for  a  sum 
of  about  Rs.  1,500  beyond  the  amount  due 
on  the  mortgage  and  that  sum  of  money  was 
allowed  to  remain  in  the  hands  of  the  mort- 
gagee Lalchand  in  that  the  interest  on  that 
amount  should  be  paid  to  Hassanand  with 
the  consent  of  Hassanand  and  Rs.  500  was 
paid  by  the  insolvent  bj  way  of  a  transfer  of 
certain  plot  to  Hassanand.  Thus  was  made 
by  the  sum  of  Rs.  2,000  out  of  which  cows 
were  to  be  sustained  as  originally  intended 
by  Mohandas.  These  are  the  facts  which 
were  stated  and  may  be  taken  for  the  pre- 
sent purposes  to  be  correct  facts.  As  a  matter 
pf  fact  Hassanapd  ie  a  fifef  coy  sin  of 


JAI  NARAIN  V,  JAFAR  BEG. 


[92  L  0. 1926] 

insolvent  and  he  also  claims  to  be  con- 
siderable creditor  in  respect  of  other  trans- 
actions. 

Now  no  doubt  if  this  sum  of  Its.  2,000 
has  been  paid  by  the  insolvent  to  Hassa- 
nand  on  account  of  ordinary  debt,  it 
would  be  a  clear  preference,  however  clear- 
ly that  debt  was  due,  however  sacred  the 
obligation  on  Deoomal  from  a  moral  point 
of  view  to  re-pay  this  money  may  have 
been.  Ifc  is  particularly  in  the  case  of  hard- 
ship that  preference  is  likely  to  take  place 
and  all  such  transactions  must  be  set  aside 
according  to  the  strict  letter  of  the  law 
whether  the  transfer  is  actuated  by  re- 
prehensible or  honest  motives.  But  it  ia 
pleaded  that  this  transaction  is  not  liable 
to  be  set  aside  because  it  was  a  trust 
transaction.  After  examining  Deoomal  and 
looking  into  the  accounts  I  find  that  there 
is  no  evidence  that  Deoomal  was  a  trustee 
for  the  charity,  that  is  to  say,  he  was  not 
a  trustee  in  respect  of  Rs.  2,000  if  this 
Ks,  2, 000  was  earmarked  for  the  purpose  of 
forming  a  charitable  fund.  The  persons 
who  possessed  that  fund  were  Mohandas 
and  Hassanand.  If  Mohandas  and  Hassa- 
nand  chose  to  utilise  the  trust  funds  by 
lending  them  to  merchants  instead  of  de- 
positing those  trust  funds  in  trust  securi- 
ties hoping  thus  to  earn  a  high  rate  o£ 
interest,  that  does  not  convert  the  debt 
due  by  the  merchant  to  the  lenders  into 
a  trust  transaction.  The  matter  is  one  sim- 
ply of  a  debt  in  respect  of  money  lent  by 
the  trustee  and  due  by  the  merchant  It 
is  not  the  merchant  who  holds  as  a  trustee 
and  to  whom  the  beneficiary  is  to  look 
for  the  payment  and  for  the  benefits  secured 
to  them  by  the  trust.  I  cannot  say  that 
this  sum  of  Rs.  2,000  was  in  the  hands  of 
Deoomal  as  a  trustee.  It  seems  to  me, 
therefore,  he  was  not  authorized  to  re-pay 
the  amount  to  Hassanand  at  the  time  he 
did  and  that  payment  should  be  held  pre- 
ferential and*null. 

Call  up  again  for  exact  form  orders  on 
Thursday  next. 

z.  K.  Order  accordingly. 


1017 


ALLAHABAD  HIGH  COURT. 

LETTERS  PATENT  APPEAL  No.  90  OF  1924, 

January  4,  1926. 

Present:— Sir  Gnmwood  Hears,  KT  , 
Chief  Justice,  and  Mr.  Justice  Lindsay. 
Lala  JAI  NARAIN— DEFENDANT— 
APPELLANT 

versus 
JAFAR  BEG  AND  ANOTHER — PLAINTIFFS — 

RESPONDENTS. 

Estoppel,  equitable — Fraudulent  acquiescence. 
Merc  acquiescence  cannot  deprive  a  person  of  his 
legal  rights,  unless  he  has  acted  in  such  a  way  as 
\vould  make  it  fiaudulent  for  lain  to  set  up  those 
right  3  The  elements  necessary  to  constitute  such 
fraudulent  acquiescence  are  — 

(1)  that  the  trespasser  must  have  made  a   mistake 
as  to  his  legal  i  ights, 

(2)  that  he    must    have  expended    sonic  money    or 
must  have  done    some  act  (not     necessanly  upon  the 
land  of  the  owner    of  the  legal  light)  on    the  faith  of 
his  mistaken  belief, 

(3)  that  the  possessor    of  the  legal  light  must  know 
of  the  existence  of  his  own  right  which  is  inconsistent 
with  the  riftht  claimed  by  the  tiespasser, 

(4)  that  the  possessor  of  the  legcd  right  must  know 
of  the  trespasser's  mistaken  belief  of  his  rights, 

(5)  that  the  possessor    of  the  legal  right  must  have 
encomagod  the  trespasser  in  his  expenditure  of  money 
or  in  the  other  acts  which  he  has  done,  eithei  directly 
01    by  abstaining  from    asserting  his    legal   rights 
[p   1018,  col  21 

Wheieall  these  elements  exist  theie  is  fraud  of 
such  a  nature  as  will  entitle  the  Court  toresfcram  the 
possessor  of  the  legal  right  fiom  exercising  it,  but 
nothing  shoit  of  all  these  will  do  [ibid  ] 

Wilmott  v  Barber,  (1880)  15  Ch  D,  [)6,  43  L  T  95 
28  W  R.  Ull,  followed. 

Letters  Patent  Appeal  against  a  judg- 
ment of  Mr.  Justice  Daniels,  dated  the 
25th  February  1924. 

Mr.  L.  M.  Banerji,  for  the  Appellant. 

Messis  Sailanath  Mukerji  and  Baleshwari 
Prasad,  for  the  Respondents. 

JUDGMENT.—This  case  has  been 
argued  at  length  before  us  and  we  are  asked 
to  interfere  with  the  judgment  of  the 
Judge  of  this  Court  on  the  ground  that  he 
ought  not  to  have  decreed  demolition  of  a 
certain  structure  in  favour  of  the  plaint- 
iffs. 

The  suit  was  a  suit  in  ejectment,  the 
plaintiffs  alleging  that  the  defendant  had 
trespassed  on  a  small  portion  of  land 
belonging  to  them  and  had  erected  a  build- 
ing The  suit  was  filed  in  the  month  of 
November  1918  and  the  allegation  in  the 
plaint  was  that  the  defendant  had  begun 
to  erect  the  building  during  the  Civil 
Court  vacation  which  in  the  year  1918  lasted 
from  the  20th  of  September  to  the  J9th  of 
October  1918, 


1018 


JAI  NARAIN  V.  JAPE  ft  BEG, 


The  plaintiffs  prayed  for  the  ejectment 
of  the  defendant  and  also  for  the  demoli- 
tion of  the  construction  just  mentioned. 

The  defence  was  that  the  land  in  suit 
was  the  property  of  the  defendant  and  not 
of  the  plaintiffs,  and  a  further  plea  was 
taken  in  para.  12  of  the  written  statement 
to  the  effect  that  the  claim  of  the  plaintiffs 
was  barred  on  the  principle  of  "  tacit  ac- 
quiescence and  waiver.11 

The  Court  of  first  instance  found  that 
the  title  to  this  land  was  clearly  with  the 
plaintiffs  and  that  the  defendant  had  no 
title  at  all.  On  the  other  hand,  when  it 
came  to  deal  with  the  question  of  the  right 
of  the  plaintiffs  to  have  the  construction 
demolished  the  Court  of  first  instance  re- 
fused to  order  demolition  on  the  ground 
that  the  construction  was  already  complete. 
In  dealing  with  this  part  of  the  case  the 
Munsif  observed  as  follows  : — 

"As  to  the  waiver  the  plaintiffs  say  that 
the  wall,  that  is,  the  eastern  portion  of  the 
southern  wall  of  the  defendant's  house  was 
built  during  the  long  vacation  of  the  Civil 
Court  in  1918  in  spite  of  the  plaintiffs1 
protest.  This  point  is  not  definitely  proved 
by  the  plaintiffs  and  the  wall  is  already 
built  and  the  roof  put  upon  it.  Therefore, 
in  these  circumstances,  1  do  not  think  it 
right  to  order  the  demolition  of  the  build- 
ing itself  but  instead  I  award  the  plaintiffs 
Rs,  100  damages  for  that  portion  of  the 
land/1 

This  judgment  was  maintained  in  appeal 
by  the  Subordinate  Judge.  He  also  refus- 
ed to  order  demolition  and  gives  his  reasons 
as  follows:  — 

"  The  appellant  has  built  a  costly  struc- 
ture on  the  land  and  I  am  not  satisfied 
that  the  respondents  could  not  have  pre- 
vented the  construction  if  they  had  taken 
action  in  time.  They  must,  therefore, 
suffer  the  consequences  of  their  laches  and 
must  be  content  with  the  damages  awarded 
to  them,11 

The  learned  Judge  of  this  Court  who 
had  the  second  appeal  before  him  was  of 
opinion,  that  the  lower  Courts  had  not 
given  any  sufficient  reasons  for  refusing 
an  order  for  demolition,  and  after  hearing 
the  argument  of  Counsel  we  think  the 
learned  Judge  of  this  Court  was  quite 
right.  The  law  on  the  subject  of  equitable 
estoppel  has  been  expended  in  the  case  of 
Wilmott  v.  Barber  (1),  In  dealing  with 
the  subject  of  acquiescence  Fry,  Jt|  ob- 
(1)  (I860)  15  Oh.  D.  96;  43  L.  T.  93,  23  W.  I*.  911. 


[92 1.  0. 1826] 

served  as  follows  at  page  105*  of  the  re- 
port : — 

"It  has  been  said  that  the  acquiescence 
which  will  deprive  a  man  of  his  legal  rights 
must  amount  to  fraud,  and  in  my  view  that 
is  an  abbreviated  statement  of  a  very  true 
proposition.  A  man  is  not  to  be  deprived 
of  his  legal  rights  unless  he  has  acted  in 
such  a  way  as  would  make  it  fraudulent 
for  him  to  set  up  those  rights.  What, 
then,  are  the  elements  or  requisities  neces- 
sary to  constitute  fraud  of  that  descrip- 
tion ?  In  the  first  place  the  plaintiff  must 
have  made  a  mistake  as  to  his  legal  rights, 
Secondly,  the  plaintiff  must  have  expend- 
ed some  money  or  must  have  done 
some  act  (not  necessarily  upon  the  defend- 
ant's land)  ,on  the  faith  of  his  mistaken 
belief.  Thirdly,  the  defendant,  the  posses- 
sor of  the  legal  right,  must  know  of  the 
existence  of  his  own  right  which  is  incon- 
sistent with  the  right  claimed  by  the 
plaintiff.  If  he  does  not  know  of  it  he  is 
in  the  same  position  as  the  plaintiff,  and 
the  doctrine  of  acquiescence  is  founded 
upon  conduct  with  a  knowledge  of  your 
legal  rights.  Fourthly,  the  defendant,  the 
possessor  of  the  legal  right,  must  know  of 
the  plaintiff's  mistaken  belief  of  his  rights. 
If  he  does  not,  there  is  nothing  which  calls 
upon  him  to  assert  his  own  rights. T  - ''  ' 
defendant,  the  possessor  of  thr  J  ,, 

must  have  encouraged  the  pr  .is 

expenditure  of  money  or  in  '  tcts 

which  he  has  done,  either  cu^  or 
by  abstaining  from  asserting  his  legal 
right  Where  all  these  elements  exist,  there 
is  fraud  of  such  a  nature  as  will  entitle  the 
Court  to  restrain  the  possessor  of  the  legal 
right  from  exercising  it,  but,  in  my  judg- 
ment, nothing  short  of  this  will  do.1' 

Applying  these   principles    to    the   case 
now  before  us  it  seems  to  us  that  the  judg- 
ment of  the  learned  Judge  of  this   Court 
was  right  in  finding  that  no  case  had  been 
made  out  by  either  of  the  Courts  below  for 
refusing  the  plaintiffs'  demolition  of    the 
construction.    It  has  been  argued  before  us 
that  the  defendant- appellant  was  under  a 
mistaken  belief  that  the  land   in  dispute 
belonged  to  him.    Even  assuming  that  to 
be    proved  the  defendant  would  still    not 
be  entitled    to  succeed  in  this  appeal  for 
it    would    necessary    for    him    to    estab- 
lish the   other  matters  referred  to  in  the 
judgment  of   Fry,  J.    From  the  judgment 
of    the    Courts    below,    however,    it  does 
*?ago  of  (1880)~15  Ch,  D,— [BWTj  * 


H  0,1926] 


MUNICIPALITY  OF  TANDO  ADAM  V.  KHAIB  MAHOMED. 


101ft 


not  appear  to  us  tkat  the  defendant-appel- 
lant could  have  entertained  any  bona,  fide 
belief  that  he  was  the  owner  of  the  land  in 
question. 

We  are  of  opinion  that  the  appeal  fails 
and  we  dismiss  it  accordingly  with  costs 
including  in  this  Court  fees  on  the  higher 
scale. 

We  order  the  defendant  to  clear  the 
ground  mentioned  in  para.  10  (a)  of  the 
plaint  of  the  building  now  upon  it  and  this 
he  is  to  do  by  the  4th  of  April  1926.  If 
by  that  date  this  order  has  not  been  com- 
pletely obeyed  the  plaintiffs  should  move 
this  Court,  and  no  other,  on  a  motion  for 
contempt. 

s.  B.  Appeal  dismissed. 

N,  H. 


SIND  JUDICIAL  COMMIS- 
SIONER'S COURT* 

REVISION  APPLICATION  No.  87  OF  1924, 

March  26,  1925. 
Present:— Mr.  Kennedy,  J.  C.,  and 

Mr.  DeSouza,  A.  J.  0. 
MUNICIPALITY  OP  TANDO 
ADAM — APPELLANTS 

versus 

KHAIR  MAHOMED  AND  OTHERS- 
RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  ss  105,  115, 
0.  VI,  r,  17 ',  0  XXXIX,  r  2  -Amendment  of  plaint, 
when  to  be  allowed  -  Refusal  to  allow  amendment — 
Revision— Interfei  ence  by  High  Court — Defendant  in 
possession—Temporary  injunction  restraining  defend- 
ant's user,  when  can  be  granted. 

The  High  Court  has  power  to  interfere  with  the 
proceedings  of  a  lower  Court  even  in  the  case  of  an 
interlocutory  order  where  the  effect   of  that  interlocu- 
tory order  la    not  meiely   to  prescribe  a  paiticular 
procedure,  to  admit  or  to  shut  out  a  particular  piece 
of  evidence  or  to  admit  or  exclude  paiticular  parties 
Where  the   Court  against  whose  orders  there  is  an 
application  for  revision  has  so  used  its  jurisdiction 
that  the  result  of  allowing  its  order  to  stand  will  be 
definitely  to  decide  the  case  pending  before  it  so  that 
all  the  proceedings  thereafter  taken  would  be  merely 
infructuous  and  would  result  in  a  waste  of  tune,  then 
the  High  Court  will  look  into  the  order  and  if  ]ustic3 
requires  it  will  set  it  aside   [p  1020,  cols  1  &  2  J 
-   In  a  proper  case  the  Court  should  freely  allow  an 
amendment  of  the  plaint  so  as  to  ensure  that  justice 
is  done  to  the  parties  and  that  the  time  and  the  money 
of  the  parties  13  not  wasted  [p  1020,  col  2  J 

Where  a  Court  refuses  to  allow  an  amendment  of 
the  plaint  in  a  case  m  which  such  amendment  is  ne- 
cessary for  the  purpose  of  doing  justice  between  the 
parties,  it  fails  to  fljcercise  a  jurisdiction  vested  m  it 
by  law  and  its  order  is  open  to  revision  under  s.  115 
f  the  C..P.  C,  [p.  1021,  col.  1.] 


Courts,  as  a  general  rule,  refuse  to  interfere  by  way 

of  injunction  to  restrain  a  defendant  from  making 

such  use  as  he  may  think  fit  of  the  property  of  which  he 

is  in  possession     But  in  certain  cases  the  Court  would 

interfere  with  the  rights  of  the  defendant,  for  instance 

•vvheie  the  defendant  contemplates  the  destruction,  or 

a  change  in  the  nature,  of  the  corpus,  [p  1020,  col  2  ] 

Mr.  C.  C.  Lewis,  for  the  Appellants. 

Messrs.    C.    M.  Lobo  and  Shrikishandas 

Lulla,  for  the  Respondents. 

JUDGMENT.— In  this  case  the  plaint- 
iffs who  are  the  Municipality  of  Tando 
Adam  brought  an  action  against  the  Muham- 
madan  community  of  Tando  Adam  putting 
down  16  persons  as  representing  that  com- 
munity under  0. 1,  r.  8,  averring  that  the 
Muhammadan  community  had  trespassed 
without  any  right  or  title  on  certain  piece 
of  property  which  belonged  to  the  Muni- 
cipality and  were  erecting  a  Masjid  on 
that  property  and  accordingly  they  asked 
for  a  declaration  that  the  plaint  property 
was  the  exclusive  property  of  the  plaintiffs 
and  that  the  defendants  had  no  right  to 
build  thereon  without  the  permission  of 
the  plaintiffs  and  asked  for  a  perpetual 
injunction  against  the  defendants  restrain- 
ing them  from  building  on  the  property 
or  committing  any  trespass  thereon.  The 
defendants  raised  their  defence  that  the 
property  was  in  their  possession  and  the 
suit  in  its  form  was  then  not  maintain- 
able The  issues  were  framed  both  on 
that  plea  and  on  the  question  of  the  title, 
ownership  and  possession.  Thereon  the 
plaintiffs  made  an  application  asking  to 
be  allowed  to  amend  their  plaint  by  asking 
for  an  alternative  relief  that  if  the  Court 
held  that  the  defendants  were  in  posses- 
sion of  the  property  then  in  that  case,  the 
Court  should  decree  that  the  plaintiffs  were 
entitled  to  recover  possession  of  the  pro- 
perty in  dispute  with  all  the  rights  arid  in- 
terests pertaining  thereto  from  the  defend- 
ants. They  showed  their  willingness  to 
stamp  on  Rs.  600  and  they  asked  further 
for  a  decree  directing  the  defendants  to 
make  over  vacant  possession  to  them. 

The  learned  Subordinate  Judge  of 
Shahdadpur-Nawabshah  rejected  that  appli- 
cation to  amend  the  plaint  on  the  ground 
that  there  had  been  a  lack  of  good  faith  on 
the  part  of  the  plaintiffs.  The  learned  Sub- 
ordinate Judge  was  of  the  opinion  that  the 
plaintiffs  were  well  aware  at  the  time  they 
filed  their  plaint  that  they  should  have 
asked  for  possession  and  that  the  reason 
why  they  failed  to  ask  for  possession  and 
asked  for  a  declaration  was  that  they  antici** 


1020 


MUNICIPALITY  OP  TANDO  ADAM  fl.  KHAIR  MAHOMKD,  [92  I,  0.  1926] 


pated  that  if  they  admitted  that  the  def  end- 
atis  were  in  ^possession  they  twould  be  un- 
able to  obtain  an  injunction  restraining  the 
defendants  from  dealing  with  the  property 
in  their  possession.  The  learned  Subordi- 
nate Judge  thought  that  the  plaintiffs  hav- 
ing filed  the  suit  in  a  form  which  enabled 
them  to  ask  for  an  injunction  and  also  to 
obtain  an  injunction,  could  not  be  per- 
mitted to  re-cast  their  suit  so  as  to  change 
it  to  the  form  in  which  they  should  origin- 
ally have  brought  it  and  in  which  they 
would  not  have  been  able  to  obtain  the  in- 
junction and  he,  therefore,  refused  per- 
mission to  amend.  And  ifc  is  against  that 
order  the  present  revision  application  is 
brought. 

The  first  objection  taken  to  the  applica- 
tion is  on  the  ground  that  no  power  exists 
in  this  Court  to  revise  interlocutory  orders 
under  s.  115  and  we  are  referred  to  the  case 
given  in  Firm  of  Yusifally  Alibhoy  Karimji 
and  Co.  v.  Firm  of  Ilaji  Mahomed-Haji 
Abdullah  (1).  We  have  no  desire  to  elude  or 
evade  in  any  way  the  effect  of  that  decision. 
If  we  may  say  so  it  covers  the  whole  ground 
and  apparently  accurately  ascertains  the 
power  of  this  Court  in  such  matters  This- 
Court  has  set  its  face  against  applications 
to  revise  interlocutory  orders  as  part  of  the 
ordinary  routine  of  litigation  and  where  the 
interlocutory  order  sought  to  be  revised  is 
interlocutory  order  of  the  type  referred  to 
in  Firm  of  Yusifally  Alibhoy  Karimji  and 
Co.  v.  Firm  Ilaji  Mahomed-Haji  Abdullah 
(1)  this  Court  will  refuse  to  interfere  and 
will  not  order  the  lower  Court  to  adopt  a 
particular  kind  of  procedure.  But,  on  the 
other  hand,  this  Court  has  always  retained 
in  its  hands  and  has  never  denied  its  right 
to  interfere  with  the  proceedings  of  the 
lower  Court  even  in  the  case  of  an  inter- 
locutory order  where  the  effect  of  the  in- 
terlocutory order  is  not  merely  to  prescribe 
a  particular  procedure,  to  admit  or  to  shut 
out  particular  piece  of  evidence,  or  to  admit 
or  exclude  particular  parties  or  the  like 
provided  that  such  orders  are  such  as  can- 
not bo  made  a  ground  of  appaal  against 
the  decree  when  finally  passed  and  do  not 
go  to  the  very  root  of  the  case.  Where, 
however,  the  Judge  against  whose  order 
there  is  an  application  for  revision  has  so 
used  his  jurisdiction  that  the  result  of 
allowing  his  order  to  stand  will  ba  definite- 
ly to  decide  the  case  pending]  before  him, 

(1)  58  Iitf,  Oas,  721;  U  8,  L,  fy  28, 


so  that  all  the  proceedings  thereafter  taken 
would  be  merely  iufructuous  and  waste  of 
time  and  where  as  here  the  interlocutory 
order  could  not  be  made  the  ground  of  an 
appeal  against  the  final  decree,  then  we 
have  always  held  ourselves  at  liberty  (con- 
sidering that  his  order  has  practically 
been  a  decision  of  the  case)  to  look  into 
his  order  and  if  justice  requires  it  to  set 
that  order  aside.  That  is  also  in  accordance 
with  the  way  in  which  the  High  Court  of 
Bombay  deals  with  questions  of  interlocu- 
tory orders  when  such  are  made  subject  of 
application  in  revision. 

No\v,  it  would  appear,  if  the  order  is  a 
wrong  order,  it  is  more  than  an  errone- 
ous decision  on  a  mere  ancillary  or  sub- 
sidary  point.  The  effect  of  this  order,  if 
it  is  wrong,  is  to  deny  definitely  and  finally 
to  the  plaintiffs  the  remedy  to  which  they 
conceive  themselves  to  be  entitled.  And 
if  it  is  a  wrong  order,  therefore,  under  the 
principles  laid  down  above  it  seems  we 
can  and  should  modify  it.  We  think  the 
present  case  is  clearly  to  be  distinguished 
from  the  case  of  Firm  of  Yusifally 
Alibhoy  Karimji  &  Co.  v.  Firm  of  Haji 
Mahomed-Ha]i  Abdulla  (I)  and  we  have 
no  doubt  that  if  this  order  is  a  wrong  order, 
we  ought  to  modify  it. 

Now,  looking  into  this  case,  it  would 
appear  that  the  learned  Subordinate  Judge 
had  certainly  jurisdiction  to  allow  the 
amendment  of  the  plaint  and  the  whole 
course  of  decisions  is  as  he  has  himself 
said  that  in  proper  cases  the  Courts  should 
freely  allow  amendments  of  plaints  so  as 
to  ensure  that  justice  is  done  to  the  parties 
and  the  time  and  the  expense  of  the  parties 
is  not  wasted.  But  the  reason  why  he  failed 
to  exercise  this  salutary  jurisdiction  was 
due  to  a  misconception  on  his  part.  He 
was  of  the  opinion  that  if  the  suit  had  been 
brought  in  the  form  of  which  he  approved, 
namely,  in  the  form  of  the  action  tD  recover 
poasession,  the  plaintiffs  could  not  have  got 
an  injunction  prohibiting  the  building  of 
the  mosque.  Now  in  that  view  he  seems  to 
be  in  error.  It  is  true  that  Courts,  as  a  general 
rule,  refuse  to  interfere  by  way  of  injunction 
to  restrain  a  defendant  from  making  such 
use  as  he  may  think  fit  of  the  property  of 
which  he  is  in  possession.  But  in  certain 
cases  the  Court  would  interfere  with  the 
rights  of  the  defendant.  It  would  certainly 
interfere  when  the  defendant  contemplates 
4estructio4  of  t^e  corpus,  Efo^r  tbo  ayer- 


I.  0.  1926] 


merit  here  is  that  the  intention  of  the 
defendant  was  to  erect  a  mosque  and  throw 
it  open  to  the  public  for  prayer.  That  is 
to  say  assuming  the  possession  to  have  been 
with  defendants  they  intended  to  transfer 
that  possession  to  Almighty  God  and  thus 
to  render  it  impossible  for  the  plaintiffs  to 
recover  possession  of  the  property  even  in 
case  they  were  entitled  to  it.  There  is  no 
doubt  to  my  mind  that  had  the  plaintiffs 
brought  the  suit  in  the  form  which  the 
learned  Subordinate  Judge  thinks,  they 
should-have,  and  had  the  plaintiffs  frankly 
admitted  that  the  defendants  had  improper- 
ly withheld  possession  and  were  intending 
to  use  their  precarious  and  forcible  posses- 
sion for  the  purpose  of  wresting  finally 
and  definitely  from  the  hands  of  the  ploint- 
iffs  this  plot  of  land  in  that  case  the  Court 
could  and  would  have  property  prohibited 
the  defendants  from  proceeding  with  the 
erection  of  the  structure  of  the  mosque. 
It  was  not,  therefore,  through  any  sinister  act 
of  ill-faith  that  the  Municipality  failed  to 
bring  the  suit  in  the  form  they  should  have 
selected  It  was  not  until  the  written  state- 
ments of  the  defendants  were  filed,  that 
they  found  that  possession  was  set  up  by 
the  defendants  Finding  that  to  be  so  they 
reasonably  enough  wished  to  change  the 
form  of  suit  and  made  an  application  for 
that  purpose.  And,  in  our  opinion,  the 
learned  Subordinate  Judge  did  fail  to 
exercise  a  jurisdiction  which  was  vested 
in  him,  namely,  the  jurisdiction  to  allow 
the  alteration  of  the  plaint  in  a  case  in 
which  he  should  have  exercised  that  juris- 
diction. 

Therefore,  we  think  that  we  are  entitled 
to  revise  this  order.  A  further  point  is 
raised,  that  is,  there  is  some  defect  in  the 
parties  owing  to  the  fact  that  one  of  the 
defendants  had  died  and  his  legal  repre- 
sentatives have  not  been  put  on  the  record. 
We  are  not  able  to  say  anything  definitely 
because  we  have  not  got  before  us  the 
necessary  order  of  the  Court  and  we  do  not 
know  precisely  in  what  capacity  the  defend- 
ant was  impleaded.  And,  as  a  matter  of 
fact,  the  same  objection  can  be  taken  and 
decided  during  the  proceeding  at  the  trial. 
We  think  we  ought  not  to  decide  that 
point  one  way  or  the  other  or  express  any 
opinion  as  to  what  would  be  the  effect  of 
the  failure  to  join  the  legal  representatives 
of  a  defendant  who  has  been  impleaded 
under  0.  1,  r.  8, 

On  the  whole,  therefore,  we  set  aside  the 


A1AGTRISAMI  PlLLAI  V,  LAKSMANAN  OHBTTY.  10&1 

oider  of  the  learned  Subordinate  Judge  of 
Shahdadpur  Nawabshah,  direct  him  to 
amend  the  plaint  as  prayed  and  to  decide 
the  case  according  to  law. 

Costs  to  be  costs  in  the  cause. 

z,  K.  Order  set  aside. 


MADRAS  HIGH  COURT. 

APPEAL  AGAINST  APPELLATE  ORDER  No.  108 

OF  1923. 

July  30,  1925. 

Present :— Mr.  Justice  Venkatasubba  Rao 

and  Mr.  Justice  Reilly. 

ALAGIRISAMI  PI LLAI— PETITIONER 

— APPELLANT 

versus 

LAKSMANAN  CHETTY  alias  SAMUEL 
CHETTY  AND  ANOTHER— DECREE-HOLDER  4 
AND  JUDGMENT-DEBTOR— RESPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  ss  60t  1L6 
151,0  XXI,  rr  tf,  53,  0  XXXVIII,  r  6— Debt 
attachment  of —Debt  ripening  into  decree— Attaching 
ci editor,  tight  of,  to  execute  decree,  without  attaching 
decree  itself- -Decree-holder,  payment  tc,ly  judgmejit- 
debtor,  whether  binding  on  attaching  creditor— Money 
payable  on  particular  event— Interest,  provision  for 
payment  of—  Right,  whether  vested  or  contingent 

Under  the  terms  of  a  deed  of  partition  between  two 
biotheis  L  and  A1,  a  sum  of  money  fell  to  L's  share 
but  was  ictamcd  with  R  A  creditor  of  L  attached 
before  judgment  the  debt  so  due  and  ultimately  ob- 
tained a  decree  L  thereupon  sued  R  on  the  debt, 
obtained  a  decree  and  within  a  month  thereafter 
leported  satisfaction  of  the  decree  In  an  applica- 
tion for  execution  by  the  attaching  creditor 

Held,  (1)  that  the  attaching  creditoi  was  not  bound 
either  by  the  alleged  payment  by  R  or  by  the  record- 
ing of  satisfaction  by  L  and  was  entitled  to  execute 
the  decree,  [p  1024,  col  2] 

(2)  that  the  attaching  creditor  should  be  permitted  to 
amend  his  petition  by  adding  a  prayer  thereto  for  the 
attachment  of  the  decree  obtained  by  L  against  R 
[ibid] 

Per  Venkatasubba  Rao,  J  (Reilly,  J  dissenting)  — 
The  attachment  placed  on  a  debt  fastens  itself  on  a 
decree  obtained  on  that  debt  without  any  further  act 
on  tho  part  of  the  attaching  creditor  The  debt 
matuies  into  and  merges  in  the  decree  and  the 
attachment  gets  naturally  transferred  from  the  debt  to 
tho  decree  [p  1022,  col  2  ] 

The  creditor  who  has  attached  the  debt  but  who 
has  failed  to  attach  the  decree  is  nevertheless  entitled 
to  execute  it  as  if  he  had  attached  the  decree  also 
To  such  a  case  the  provisions  of  a.  146,  0  P  0  ,  will 
clearly  apply.  |p  1024,  col  1.] 

Per  Reilly,  J.— What  an  attaching  creditor  gets 
when  a  debt  is  attached  at  his  instance  is  an  order 
prohibiting  the  creditor  from  recovering  it  and  the 
debtor  paying  it.  He  acquires  by  that  order  no  right 
to  sue  on  the  debt  or  to  collect  it  or  to  give  a  valid 
discharge  of  it.  Tho  prohibitory  order  which  ho 
obtains  cannot  grow  or  ripen  into  or  be  converted 


1022 


4LAQJSJSAMI  P1LLAI 


into  something  quite  different,  namely,  the  right  to 
execute  a  decree  obtained  on  the  debt.  It  is,  there- 
fore, necessary  for  the  creditor  to  attach  the  decree 
before  proceeding  to  execution,  [p.  1026,  col.  2,  p.  1027, 
col.  1.] 

Per  Venkatasubba  Rao  and  Reilly,  JJ  — Where  a 
partition  deed  between  L  and  R  provided  that  the 
money  which  fell  to  Z/s  share  was  to  be  retained  by 
R  who  was  to  pay  it  to  L  at  his  marriage  with  interest 
at  a  fixed  rate: 

II eld,  that  Z/s  interest  was  a  vested  interest  and  not 
a  contingent  one  and  it  was  attachable  under  s.  60  and 
r.  6  of  O.  XXXVIII,  C.  P.  0.,  as  a  debt  due  to  him, 
though  on  that  date  he  could  not  cnfoice  payment  of  it. 
[p.  1024,  cols.  1  &  2;  p.  1027,  col  1.] 

Per  Venkatasubba  Rao,  J. — If  a  gift  and  direction 
as  to  payment  are  distinct,  the  direction  as  to  the 
time  of  payment  does  not  postpone  the  vesting,  [p. 
1024,  col.  2.J 

Appeal  against  a  decree  of  the  Court 
of  the  Subordinate  Judge,  Dindigul,  in 
A.  S,  No.  33  of  1922,  preferred  against  an 
order  of  the  Court  of  the  District  Munsif, 
Dindigul,  in  E.  P.  No.  673  of  1922,  in  O.  S. 
No.  772  of  1920. 

Messrs.  B.  Sitarama  Rao  and  L.  V.  Kri- 
shnaswami  Iyer,  for  the  Appellant. 

Mr,  K.  Rajah  Iyer,  for  the  Respondents. 
JUDGMENT. 

Venkatasubba  Rao,  J.— Before 
dealing  with  the  questions  of  law  raised,  1 
shall  briefly  set  forth  the  facts. 

Lakshmana  Ohetty  entered  into  a  parti- 
tion with  his  co-parceners,  under  the  deed 
of  division  dated  9th  February  1918.  A 
sum  of  money  fell  to  his  share  and  this  sum 
was  retained  under  the  terms  of  that  deed 
with  his  brother  Ramalinga  Chetty.  The 
appellant  filed  a  suit  for  money  (O.  S. 
No.  495  of  1919)  against  Lakshmana  and 
attached  before  judgment  the  debt  due  to 
him  under  the  partition  deed.  The  appel- 
lant on  3rd  July  1919  obtained  a  decree  in 
his  suit.  Lakshmana  sometime  after  this 
filed  a  suit  against  Ramalinga  Chetty  (O.  8. 
No.  772  of  1920)  for  recovery  of  the  money 
due  to  him  under  the  partition  deed  and 
obtained  a  decree.  Lakshmana  and  Rama- 
linga within  a  month  of  this  decree  entered 
into  a  settlement  and  Lakshmana  reported 
satisfaction  which  was  recorded. 

The  decree  was  obtained  by  Lakshmana 
in  O.  S.  No.  772  of  1920,  on  2nd  February 
1921.  Satisfaction  was  entered  on  2nd 
March  1921  and  the  appellant  on  27th  July 
1921  applied  to  execute  the  decree  in  0.  8. 
No.  772  of  1920.  . 

Th'e  first  question  that  has  to  be  deter- 
mined is,  can  the  appellant  who  has  attach- 
ed the  debt  but  who  has  failed  to  attach 
this  decree,  execute  it  as  if  he  has  attached 
the  decree  also, 


CHBTTY.          [92  L  0. 1926J 

The  attachment  of  a  debt  is  effected 
under  O.  XXI,  r.  46,  C.  P,  C.  It  is  made 
by  a  written  order  prohibiting  the  creditor 
from  recovering  the  debt  and  the  debtor 
from  paying  it.  It  is  conceded  that  the 
attachment  was  in  force  on  the  date  Rama- 
linga alleges  he  satisfied  the  decree  by 
payment  to  Lakshmana.  Ramalinga  ^  in 
making  the  payment  acted  in  contravention 
of  the  prohibitory  order  and  Lakshmana  in 
receiving  the  debt  was  equally  guilty  of 
disobedience  of  that  order. 

Under  s.  64,  C.  P.  C.,  any  payment  to  the 
judgment-debtor  contrary  to  the  attachment 
is  void  as  against  all  claims  enforceable 
under  the  attachment.  For  the  appellant 
Mr.  B.  Sitarama  Rao,  his  learned  Vakil,  con- 
tends that  if  it  was  incumbent  upon  him  to 
follow  up  the  attachment  of  the  debt  by 
attaching  the  decree,  Ramalinga  could 
successfully  plead  that  his  payment  was 
not  void  against  the  attachment  of  the 
decree.  In  other  words,  if  the  appellant 
could  trace  his  rights  to  the  attachment  of 
the  debt,  the  payment  relied  on  by  Rama- 
linga subsequent  to  that  attchment  would 
be  void  against  it;  but  if  the  source  of  the 
appellant's  title  should  be  held  to  be  attach- 
ment of  the  decree,  Ramalinga  could  suc- 
cessfully rely  upon  the  payment  made  prior 
to  that  attachment.  To  bring  out  the 
point  of  Mr.  Sitarama  Rao's  contention  I 
shall  take  an  illustration.  A  attaches  a 
debt  due  from  C  to  J3.  Then  B  sues  C  and 
obtains  a  decree.  On  the  same  day  as 
judgment  is  obtained,  C  pays  up  the 
amount  to  B.  If  the  right  rule  is  that  the 
decree  must  be  attached,  A  may  be  easily 
defeated;  for,  even  more  than  ordinary 
diligence  on  his  part  will  not  prevent  B 
from  receiving  and  C  from  paying  the  sum 
decreed. 

The  C.  P.  C.  does  not  contain  a  provi- 
sion to  the  effect  that  the  payment  shall 
be  void  not  only  as  against  the  later  attach- 
ment of  the  decree  but  also  as  against  the 
prior  attachment  of  the  debt.  To  this 
extent  there  is  a  lacuna  in  the  Code.  But 
by  a  distinct  provision  the  creditor  is  pro- 
hibited from  paying  the  debt  attached.  In 
the  circumstances,  what  is  the  reasonable 
view  to  take  ?  I  am  prepared  to  hold  that 
the  attachment  placed  on  the  debt  fastens 
itself  on  the  decree  without  any  further  act 
on  the  part  of  the  attaching  creditor  The 
debt  matures  into  and  merges  in  the 
decree  and  the  attachment  gets  naturally 
transferred  from  the  debt  to  the  decree 


[92 1.  0. 1926] 


ALIOIRISAMI  PILLAI  V.  LAKSUANAK  CHBTTT. 


1023 


Consistent  with  the  policy  and  the  provi- 
sions of  the  Code  this,  in  my  opinion,  is 
the  only  reasonable  view  to  take.  It  has 
been  held  by  the  Judicial  Committee  in 
Beti  Maharani  v.  Collector  of  Etawah  (1) 
that  when  a  debt  is  attached  a  suit  for  its 
recovery  is  not  stayed.  The  order  of  at- 
tachment is  infringed  only  if  the  restrain- 
ed debtor  pays  the  debt  to  the  restrained 
creditor  and  it  is  pointed  out  that  very  often 
it  may  be  desirable  to  institute  a  suit.  Can 
the  attaching  creditor's  rights  be  then 
defeated  by  the  debtor  converting  the 
simple  debts  into  a  decree  debt  and  receiv- 
ing payment  ?  The  common  sense  of  the 
thing  demands  that  this  cannot  be  coun- 
tenanced. 

The  appellant's  learned  Vakil  relies  upon 
s.  146  of  the  0.  P.  C.,  which  runs  thus  . — 

"Save  as  otherwise  provided  by  this  Code 
or  by  any  law  for  the  time  being  in  force, 
where  any  proceeding  may  be  taken  or 
application  made  by  or  against  any  person, 
then  the  proceeding  may  be  taken  or  appli- 
cation may  be  made  by  or  against  any 
person  claiming  under  him."j 

Lakshmana  could  apply  to  execute  the 
decree.  The  appellant  as  one  claiming 
under  him  could  likewise  execute  it.  This 
contention  seems  to  me  to  be  perfectly  sound. 
The  respondent's  learned  Vakil  urges  that 
O.  XXI,  r.  16  governs  the  case  of  a  trans- 
ferred decree-holder,  that  the  provision  is 
complete  and  self-contained  and  s.  146  can- 
not be  invoked.  I  cannot  accept  this  argu- 
ment. Is  there  anything  in  0.  XXI,  r.  16 
prohibiting  persons  other  than  those  men- 
tioned in  it  from  being  treated  as  trans- 
feree decree-holders?  It  is  only  in  that  case 
that  s.  146  will  not  apply  by  reason  of  the 
words  "save  as  otherwise  provided  by  this 
Code."  To  place  a  narrow  construction  on 
s.  146  will  be  to  defeat  the  very  object  of 
that  section.  In  the  very  nature  of  things,  it 
is  impossible  to  provide  by  express  provision 
for  every  conceivable  set  of  facts  that  may 
arise.  It  is  just  to  meet  this  contingency 
that  ss.  146  and  151  have  been  enacted,  I 
am  against  whittlin  g  down  the  scope  of  s.  146 
by  placing  a  too  limited  and  narrow  con- 
struction upon  it.  It  must  receive  its  full 
effect  and  I  think  the  appellant  can  invoke 
it  in  the  present  instance. 

The  view  I  have  taken  receives  strong 
support    from    Muthiah  Chettiar  v.  Lodd 

(1)  17  A.  398  at  p,  210,  22 1   A,  33;   6  Sar.  P.  0.  J. 
551;  8  Jad,  Dec,  <»,  0.)  452  (P.  0.), 


Govinda  Doss  Krishna  Doss  (2).  The 
point  that  had  to  be  decided  was,  could 
a  transferee  of  a  part  of  the  decree 
execute  it?  It  was  contended  that  he  could 
not  and  for  th^t  position  reliance  was 
placed  on  0.  XXI,  rr.  15  and  16.  The  conten- 
tion advanced  may  be  put  thus.  Rule  15 
refers  to  a  case  of  a  decree  passed  jointly 
in  favour  of  two  or  more  persons.  In  that 
case,  application  for  execution  of  the  whole 
decree  may  be  made  by  one  or  more  of  the 
joint  decree-holders.  Next  r.  16  provides 
for  the  transfer  (1)  of  an  entire  decree  and 
(2)  of  the  interest  of  a  decree-holder  in  a 
decree  passed  jointly  in  favour  of  two  or 
more  persons.  It  was  argued  that  the 
transfer  by  a  decree-holder  of  a  part  of  a 
decree  does  not  fall  either  under  r,  15  or 
r.  16  and  the  transferee  in  that  case  could 
not,  therefore,  execute  the  decree.  It  need 
hardly  be  observed  that  this  was  a  most 
unjust  contention,  the  Full  Bench  holding 
that  s.  146  was  applicable  rejected  the 
argument.  Wallis,  C.  J ,  observes  that 
the  section  should  receive  a  beneficial 
interpretation  and  as  execution  by  a  trans- 
feree of  a  part  of  a  decree  is  not  pro- 
hibited by  0.  XXI,  r.  16,  there  is  nothing  to 
prevent  s.  146  from  receiving  its  full  effect. 
With  the  observation  of  Kumaraswami 
Sastri,  J  ,  that  the  Courts  ought  not  to  refuse 
relief  on  the  ground  that  the  Legislature 
has  not  made  provision  for  a  particular 
case,  I  entirely  agree. 

I  do  not  think  it  necessary  to  refer  in 
detail  to  the  cases  cited  for  the  respondent 
where  the  scope  of  s.  146  was  restricted. 
Muthurapore  Zemindary  Co.  v.  Bhasaram 
Mondul  (3)  may  be  taken  as  representing 
a  class  of  cases.  But  this  may  be  easily 
distinguished  as  what  was  assigned  was 
property  in  the  suit  previous  to  the  decree. 
In  Shib  Charan  Das  v.  Ram  Chandra  (4), 
which  may  also  serve  as  a  type,  there  was 
a  transfer  of  the  property  subsequent  to  the 
decree  and  it  was  held  that  the  transferee 
could  not  invoke  s.  146.  This  case  also  is 
distinguishable  from  the  present.  But  I 
must  dissent  very  respectfully  from  the 
observations  made  in  it  in  regard  to  the 
effect  to  be  given  to  s.  146,  It  will  be  more- 
over apparent  that  in  the  various  cases 
relied  on  by  the  respondent  (of  which  these 

(2)  69  Ind.  Cae,  337;  44  M  919,  41  M,  Lt  J.  316;  14 
L  W  287;  (1921)  M.  W.  N.  649. 

(3)  80  Ind.  Gas.  881,  51  0.  703,  28  0.  W.  N  626;  39 
C,  L.  J.  373;  A.  I.  R  1924  Cal,  661, 

(4)  66  Ind,  Gas,  876;  A,  I.  It.  1922  All,  98, 


1024 


ALAQIR1SAMI  PILLAI  V.  tAKSMANAN  CHETTY.  [92  I.  0.  1926] 


two  are  typical)  the  transferee  could  have 
safeguarded  his  position  by  taking  ap- 
propriate proceedings  under  the  provisions 
of  the  Code.  But  in  the  present  instance 
this  element  is  wanting  and,  in  my  opinion, 
this  makes  a  very  great  difference. 

I,  therefore,  hold  that  the  appellant  can 
rely  upon  s.  146.  Two  minor  contentions 
I  may  now  dispose  of.  First,  it  is  argued 
that  as  Lakshamana  who  certified  that  the 
decree  was  satisfied  could  not  execute  it, 
the  appellant  could  have  no  higher  rights 
under  s.  146.  This  argument  is  based  upon 
a  misappiehension.  The  appellant  claims 
under  Lakshamana  in  the  sense  that  he 
acquired  Lakshmana's  rights  as  on  the 
date  of  the  decree.  As  I  have  remarked 
the  simple  debt  became  merged  in  the 
decree  debt  and  the  moment  the  decree  was 
passed  the  attachment  of  the  debt  became 
automatically  converted  into  attachment  of 
the  decree,  and  any  dealing  by  Lakshmana 
will  not  in  consequence  be  of  any  avail. 

The  other  contention  has  reference  to 
certain  facts  which  I  have  not  so  far  men- 
tioned, Lakshmana  previous  to  filing  the 
suit  (No.  772  of  1920)  against  Ramalinga  for 
the  recovery  of  the  corpus  has  instituted 
against  him  a  suit  for  the  interest  on  the 
debt.  This  suit  was  O.  8.  No.  231  of  1919 
and  was  decreed  on  16th  December  1919, 
The  appellant  attached  this  decree  and 
realised  on  27th  July  1920  about  a  tenth  of 
the  amount  due  to  him.  It  is  urged  that 
the  rights  under  the  original  attachment 
of  the  debt  became  thus  exhausted  and  the 
appellant  rendered  himself  incapable  to 
pursue  further  remedies.  This  argument 
is  untenable  as  what  was  attached  was  the 
entire  debt  and  the  recovery  of  a  portion 
cannot  bar  the  recovery  of  the  balance. 

Then  remains  one  of  the  main  conten- 
tions raised,  namely,  that  the  attachment 
is  void  as  Lakshmana  had  only  a  contingent 
interest  in  the  sum  attached  and  s.  60,  sub- 
el,  (m),  G,  P.  C.,  declares  such  an  interest  not 
liable  to  attachment.  Whether  Laksmana 
took  a  vested  or  a  contingent  interest  is  a 
question  of  intention  and  on  a  construction 
of  the  partition  deed  I  find  no  difficulty  in 
holding  that  his  interest  was  vested.  It  re- 
cites that  the  sum  fell  to  Laksmana's  share 
but  is  to  be  retained  by  Ramalinga  who  is 
bound  to  pay  it  over  to  the  former  at  his 
marriage.  Ramalinga  cannot  in  the  mean- 
time alienate  his  property  and  is  enjoined 
to  pay  Lakshmana's  interest  at  a  rate  fixed. 

It  is  a  well-known  rule  of  construction 


that  if  the  gift  and  direction  as  to  pay- 
ment are  distinct,  the  direction  as  to  the 
time  of  payment  does  not  postpone  the 
vesting.  The  question  is,  are  there  words 
constituting  a  gift  independent  of  the 
direction  to  pay  ?  If  there  are,  the  inter- 
est is  a  vested  interest.  In  the  deed  in 
question,  there  is  a  present  gift  with  a 
postponed  payment  and  a  vested  interest 
is  thus  created  in  In  re  Bartholomew  (5),  [In 
re  Hart's  Trusts  (6),  Hawkins1  Wills,  2nd 
Edition  1912,  pages  270  to  272.]  A  stipu- 
lation that  interest  shall  be  given  in  the 
meantime,  shows  that  a  present  gift  was 
intended.  A  bequest  to  A  to  be  paid  on 
his  marriage  with  a  clause  that  interest 
shall  be  paid  till  then  is  vested.  [Vize  v. 
Stoney  (7).]  The  result  is  that  the  last  con- 
tention also  fails. 

My  learned  brother  thinks  that  the  at- 
tachment of  the  debt  cannot  become  auto- 
matically transferred  into  an  attachment 
of  the  decree.  Although  we  take  different 
views  on  this  point  our  conclusions  do  not 
materially  differ.  According  to  my  view, 
attachment  of  the  decree  in  the  circum- 
stances is  not  essential;  according  to  my 
learned  brother's  view,  this  attachment 
cannot  be  dispensed  with,  but  neither  the 
alleged  payment  by  Ramalinga  nor  the 
order  of  the  Court  recording  satisfaction  is 
an  obstacle  in  the  way  of  the  appellant  exe- 
cuting the  decree.  On,  the  point,  namely, 
whether  the  appellant,  if  he  relies  as  a 
source  of  his  title  upon  the  attachment  of 
the  decree,  can  ignore  a  payment  made 
prior  to  that  attachment,  I  would  prefer  to 
express  no  opinion  at  present.  Although 
we  give  different  reasons  for  our  conclu- 
sions, we  are  agreed  that  the  appellant  has 
not  lost  his  remedy  and  that  he  is  not 
bound  by  the  alleged  payment  or  the  record- 
ing of  satisfaction.  I  have,  therefore,  no 
objection  to  the  appellant  being  directed 
to  amend  his  execution  petition  by  asking 
for  attachment  of  the  decree  and  I  accord- 
ingly agree  to  the  order  being  in  the  terms 
suggested  in  my  learned  brother's  judg- 
ment, 

Rellly,  JV—  I  agree  that  Lakshmana 
Chetti's  interest  in  the  Rs.  1,233,  to  which 
he  was  entitled  under  the  partition  deed, 

(5)  (1840)  1  Mac.  &  G.  354;  1  H.  &  IV,  565;  19  L.  J 
Oh,  237;  14  Jur,  181;  41  E.  R.  1302;  84  R.  R.  95. 

(6)  (1858)  3  De  G.  A  J.  195  at  p.  202;  28  L,  J.  Oh.  7;  4 
Jur.  (N.B.)  1264;  7  W.  R.  28;  44  E.  R.  1243;  121  R.  R  70 

(7)  (1841)  1  Dr,  &  War.  337;  4  Ir.  Esq.  R,  64;  68  #/R, 


[92  I.  0.  1926]  ALASURISIUI  P1LLU  V> 

Ex.  Ill,  was  a  vested  interest  and  not  a 
contingent  interest    and  it  was  attachable 
under  a.  60,  0.  P.  0.  and  r.  6  of  0.  XXXVILI, 
0.  P.  0.  on  17th  June  1919  as  a  debt  due  to 
him,    though    on    that   date  he  could  not 
enforce  payment  of  it.    But  with  great  res- 
pect I  find    myself  unable   to   agree  that 
the  appellant  was  entitled  on  the  strength 
of    his    attachment    before    judgment    to 
execute  the  decree  for  that  amount  which 
Lakshmana     Ohetti    afterwards    obtained 
in   0.  S.   No.  772  of  1920  on   the  District 
Munsif's  file  without  attaching  that  decie3. 
My  view  of  the  position  in  this  case  is  as 
follows.     The    appellant  instituted    O     H. 
No.  495  of  1919    on    the  District    Munsifs 
file  a  suit  for  money,  against  Lakshmana 
Ohetty    (respondent  No.   1)  and    on  17fch 
June  1919  obtained  in  that  suit  an  attach- 
ment   before  judgment  of  the  debt  due  to 
Lakshmana      Chetty    from    his    brother, 
Ramalinga  Chetty  (respondent  No.  2)  undei 
Ex.     III.    The    attachment  order  is    not 
before  us;  but  it  is  admitted   that  it  was  in 
the  usual  form,     prohibiting    Lakshmana 
Chetty  from  recovering  the  Rs.  1,233  or  the 
interest  on  it  and  Ramalinga    Chetty  from 
paying  that  amount  or  the  interest  on  it 
until  the  further  order  of    the  Court.     On 
3rd  January  1920  the    appellant  obtained 
a  decree  in  his  suit  against  Lakshmana 
Chetty  for    Rs.   624.    It    is    not  disputed 
that    the    attachment     order    prohibiting 
Lakshmana  Chetty  and  Ramalinga  Chetty 
from  recovering  and   paying  the  debt  res- 
pectively was  not  affected  by  that  decree 
but  remained  in  full  force  after  the  making 
of  that    decree.     Meanwhile    Lakshmana 
Chetty,  who  had  filed  0.  S.  No.  231  of  1919 
against    Ramalinga   Chetty  for  the  whole 
debt  due   to  him    under  Ex.  Ill,  had    on 
16th  December  1919  obtained  a  decree  in 
that    suit  only    for    the  interest    on    the 
principal  amount,  his  claim  for  the  prin- 
cipal amount  being  dismissed  as  premature 
on  the  ground  that  he  had  not  then  been 
married  and,  therefore,  had   not  fulfilled 
the  condition  on  which    the  principal  was 
to  become  payable.    The  appellant's  attach- 
ment before   judgment    did   not  prevent 
Lakshmana   Chetty  from  prosecuting  that 
suit  to  a  decree;   but  it  did  prohibit  him 
from    recovering  any  amount    under  his 
decree.    The   appellant   then  attached  in 
execution  of   his  own    decree  the  decree 
for  interest  which  Lakshmana  Chetty  had 
obtained  iaO,  8,  No.  231  of  1919,  executed 
the  Utter  decree  under  r,  53  of  0.  XXI, 

6$ 


LUMMANAN 


1025 


C.  P.  C  and  realised  the  amount  due  under 
it,  Rs.  634-0  from  Ramalinga  Chetty.  It 
hag  been  suggested  before  us  for  Ramalinga 
Chetty  that  the  execution  of  this  decree  of 
Lakshmana  Chetty  against  him  for  the 
interest  so  far  due  on  the  Rs.  1,233  somehow 
extinguished  the  appellant's  attachment 
before  judgment  of  the  whole  debt.  I  agree 
that  that  could  not  be  so  and  that  the  order 
prohibiting  Lakshmana  Chetty  from  re- 
covering and  Ramalinga  Chetty  from  paying 
the  debt  persisted  after  the  execution  by 
the  appellant  of  Lakshmana  Chetty's 
decree  in  O.  8  No  231  of  1919.  Later  on 
Lakshmana  Chefcfcy  fulfilled  the  condition 
of  marriage  and  instituted  another  suit, 
O  S.  No.  772  of  1920  on  the  District  Munsifs 
file,  against  Ramalinga  Chetty  for  the  prin- 
cipal amount  of  Rs.  1,233  and  the  interest 
on  it  not  so  far  recovered.  That  he  was 
entitled  to  do  in  spite  of  the  appellant's 
attachment  before  judgment  ;  and  he 
obtained  a  decree  for  the  whole  amount 
claimed  and  costs  on  2nd  February  1921. 
That  decree  the  appellant  could  have 
attached  and  executed  under  r.  53  of  O.  XXI 
as  he  had  already  attached  and  executed 
the  decree  in  Lakshmana  Chetty's  previous 
suit,  O  S  No  231  of  1919.  But  be- 
fore he  bestirred  himself  to  do  so,  Laksh- 
mana Chetty  on  22nd  February  1921  took 
out  an  arrest  wairant  against  Ramalinga 
Chetty,  who  appears  to  have  been  arrested 
under  it ,  on  2nd  March,  1921  Lakshmanan 
Chetty  reported  to  the  Court  Ramalinga 
Chetty  had  paid  the  full  amount  of  the 
decree  to  him,  and  the  District  Munsif  re- 
corded full  satisfaction.  On  27th  July 
1921,  the  appellant  applied  for  permission  to 
execute  under  r.  16  of  O.  XXf,  C.  P.  C. 
Lakshmana  Chetty's  decree  against  Rama- 
linga  Chetty  in  O.  S.  No.  772  of  1920. 
That  is  the  petition  against  the  dismissal 
of  which,  after  confirmation  of  the  dismissal 
by  the  Subordinate  Judge  the  present 
appeal  is  preferred. 

The  appellant  claimed  to  execute  the 
decree  under  r.  16  of  O.  XXI.  He  did  not 
attach  Lakshmana  Chetty's  decree  under 
r.  53  of  0.  XXI,  and  in  explanation  of  his 
failure  to  do  so  it  is  suggested  that  lie  could 
not  do  so  because  the  recording  of  satisfac- 
tion on  2nd  March  1921  stood  in  his  way. 
I  may  remark  that,  if  the  recording  of 
satisfaction  stood  in  the  way  of  this  attach- 
ing the  decree  in  July  1921  it  equally  stood 
in  the  way  of  the  appellant  executing  the 
decree  as  a  transferee  under  r,  16  of  0.  XXI, 


AUGIRISAlfl  FILIAI  0.  LAKSMANAN  OflfiTTY. 


1024 

But  I    cannot  see  that  the   recording  of 
satisfaction  was  a  bar  to  execution  of  the 
decree  by  the  appellant*    There  is  nothing 
sacrosanct  about  the  recording  of  satisf ac- 
tion.   As  between  Lakshmana  Chetty  and 
Ramalinga  Chetty  the  admission  of  Laksh- 
mana Chetty  that  he  has  received  the  full 
airiount  of  the  decree  may  be  conclusive.  So 
faras  the  purposes  of  the  Court  are  concern- 
ed, the  recording  of  satisfaction  is    a  mere 
matter  of  office  business,  a  note  that  these 
proceedings  are  closed.    In  my  opinion,  it 
cannot  be  supposed  for  a  moment  that  by 
settling  the  decree  between  themselves  and 
getting  the  Court  to  record  satisfaction  as 
between     them,    Lakshmana  Chetty    and 
Ramalinga  Chetty  were  able  to  defeat  the 
rights  of  third  parties,  still  less  that  they 
were  able  by  so  doing  to  evade  the  pro- 
hibitory order  against  them,  which  was  still 
in  force.    To  allow  them  so  to  defeat  the 
order  obtained  by  the  appellant  would  be  to 
allow  a  clear  abuse  of  the  process  of  the  Court 
and  a  clear  fraud  upon  the  Court,    It  is  not 
disputed  that  the  District  Munsif  recorded 
satisfaction  in  ignorance  of  the  appellant's 
attachment  before  judgment,  which  was  not 
brought  to  his  notice.    Even  between  the 
parties  to  a  decree  an  order  recording  satis- 
faction which  has  been  obtained  by  fraud 
may  be  vacated  see  Paranjpe  v.  Kanade  (8) 
and  Vilakathala  Raman  v.   Vayalil  Pachu 
(9),  As  stated  in  Syud  Twffuzzool  Hussein 
Khan  v.  Rughoonath  Pershad(lfy  which  was 
quoted  before  us  for  another  purpose,  "to 
proceed  so  far  as  the  practice  of  his  Court 
will   allow    him  to  re-call  and  cancel    an 
invalid  order  is  not  simply  permitted  to, 
but  is  the  duty  of  a    Judge,  who  should 
always  be  vigilant  not  to  allow  the  act  of 
the  Court  itself  to  do  wrong  to  the  suitor1'. 
That  principle  is  now  clearly  recognised  in 
B.  151,  C.  P.  0.    In  my  opinion,  had  the 
appellant  in  July    1921,   applied  for  the 
attachment  of  Lakshmana  Chetty 's  decree 
in  0.8.  No.  772  of  1920  and  had  Ramalinga 
Chetty  then  objected  that  he  had  already 
satisfied  the  decree  by  payment  to  Laksh- 
mana Chetty,  the  answer  would  have  been 
that  that  payment  made  in  defiance  of  the 
prohibitory  order  obtained  by  the  appellant 
and  still  in  force,  could  affect  the  appellant 
in  no  way;and,if  it  had  been  furiherobjected 
that  the  formal  order  of  the  District  Munsif 

(8)  6  B.  148;  3  Ind.  Dec.  (N.  s.)  557. 
(I)  25  Ind.  Cas.  213:  27  M.  L.  J.  172, 
(10)  U  M,  1  A.  40;  7  B,  L,  R.  186;  2  8utb.  P,  0,  J, 
434;  I  ftp  P.CU,  956;  20  E,  R.  701, 


[92  I.  0. 1928] 


made  on  2nd  March  1921  recording  satis- 
faction of  the  decree,  stood  in  the  appellant's 
way— and  objection  which  personally  1  see 
very  little  force— it  would  obviously  have 
been  within  the  District  Munsifs  power 
under  s,  151,  0.  P.  0.  to  cancel  that  order.  In 
my  view  the  proper  course  for  the  appellant 
in  July  1921  was  to  attach  the  decree  in 
O.  8.  No.  772  of  1920  under  r.  53  of  O.  XXI 
and  proceed  to  execute  it  against  Rama- 
linga Chetty,  who  could  have  raised  no 
effective  bar  to  his  doing  so.  Section  61, 
0.  P.  0.,  would  not  perhaps  have  been 
applicable,  as  the  appellant  would  not  have 
been  enforcing  his  decree  under  his  origi- 
nal attachment  before  judgment  but  under 
his  attachment  of  the  decree  itself.  But, 
as  the  satisfaction  of  the  decree  by  Rama- 
linga Chetty  could  not  have  been  pleaded 
successfully  against  the  appellant,  the  road 
to  the  execution  of  the  decree  by  the 
ordinary  procedure  of  attaching  it  would 
have  been  open  to  him. 

It  has    been    contended  before  us  that 
it    was   unnecessary  for    the  appellant  to 
attach    Lakshmana  Chety's  decree  on  the 
debt  in  O.  8.   No.  772  of    1920  because  on 
the  making  of  that  decree  the  appellant's 
original    attachment  of  the  debt  is  some 
way  developed  into  an  attachment  of  the 
decree.     With  respect  I  am  unable  to  accept 
the  contention.    Attachments  in.  execution 
or  before  judgment   are    in    their  nature 
merely  means  of  getting  the  property  con- 
cerned into  the  control  of  the  Court  and  of 
restraining  the  party  against  whom  they 
are  directed  from  transferring,  delivering, 
changing  or  destroying  the  property.    By 
special  provisions  in  r.   53  of  0.  XXI  an 
attachment     in     execution      of     any    of 
certain  special  classes  of  decrees — not  all 
decrees  carries  with  it  a  special  privilege, 
namely,  the  right  to  execute  the    decree 
attached,    This  is  a  peculiar  privilege  in 
itself  quite  foreign  to  the  idea  of  attach- 
ment and  given  only  by  special  provisions. 
Unless  those  special    provisions  are  com- 
plied with,    I  do  not  understand  how  that 
special  privilege  can  be   acquired.    In  the 
present  case  what  the  appellant  got   when 
the  debt  was  attached  at  his  instance  wad 
an  order    prohibiting    Lakshmana  Chatty 
from  recovering  it  and  Ramalinga  Chetty 
from  paying  it.    He  acquired  by  that  order 
no  right  to  sue  on  the  debt  or  to  collect  it 
or  to  give  a  valid  discharge    of  it.    How 
can  the  prohibitory;  order  which  he  obtain- 
ed grow  or  ripen  into  or  converted  into 


BflAOWAf  I  lUYAt  V.  DHAN  KtftftfAft, 


[921.0.1928] 

something  quite  different,  namely,  tlie 
right  to  execute  a  decree  obtained  on  the 
debt?  It  appears  to  me  that  that  is  impos- 
sible without  some  provision  of  law  to  that 
effect.  The  special  privilege  of  executing 
Lakshmana  Ohetty's  decree,  it  is  some- 
thing quite  different  in  nature  and  effect 
from  the  prohibitory  order  was  in  my  view 
open  to  the  appellant  only  if  he  took,  as 
he  could  have  taken,  the  special  step  neces- 
sary for  obtaining  that  privilege,  namely, 
the  attachment  of  the  decree,  Incidental- 
ly I  may  point  out  as  a  minor  difficulty  in 
the  theory  that  the  attachment  of  the  debt 
automatically  develops  into  the  attachment 
of  any  decree  on  that  debt  that  the  decree 
will  in  most  cases  include  an  amount  for 
costs,  to  which  the  attachment  of  the  debt 
itself  cannot  apply.  In  the  piesent  case 
the  costs  awarded  to  Lakshmana  Chetty 
by  the  decree  in  0.  8.  No.  772  of  1920  were 
considerable. 

I  dp  not  think  it  necessary  to  consider 
in  this  case  the  question  whether  the  ap- 
pellant should  be  regarded  "as  claiming 
under"  Lakshmana  Chetty  in  any  sense 
within  the  meaning  of  s  146,  C.  P.  C.  As 
the  case  appears  to  me,  the  appellant  might 
have  proceeded  under  the  definite  provi- 
sions of  r.  53  of  0,  XXI,  and  it,  therefore, 
is  unnecessary  and  indeed  impossible — for 
him  to  call  in  aid  for  his  present  purpose 
the  provisions  of  s.  146.  Similarly  the 
appellant  is  in  my  view  mistaken  in  attempt- 
ing to  represent  that  he  is  in  any  sense  a 
transferee  of  Lakshmana  Chetty's  decree 
under  r.  16  of  O.  XXI,  instead  of  claiming 
his  right  to  attach  that  decree  and  then 
execute  it.  If  I  may  say  so,  the  appellant, 
in  attempting  to  make  use  of  s.  I4t5  and 
r.  16  of  0.  XXI  in  this  case  appears  to 
be  taking  a  very  circuitous  route  to  get 
round  an  obstacle  which  does  not  really 
lie  in  his  path  or  which  at  the  worst 
would  crumble  at  a  touch,  namely,  the 
District  Munsif  s  order  recording  satisfac- 
tion. 

I  do  not  think  that  the  appellant's  peti- 
tion under  appeal  should  have  been  dis- 
missed* The  proper  course  would  have 
been  to  allow  him  to  amend  it  by  adding 
a  prayer  for  the.attachment  of  the  decree 
in  0.  S.  No.  772  of  1920.  I  agree  that  the 
present  appeal  should  be  allowed  with 
costs  that  the  dismissal  of  the  appellant's 
execution  petition  should  be  set  aside  and 
that  the  petition  should  be  remanded  to 
the  District  Muneif  for  fresh  disposal; 


1027 


I  would  add  a  direction  that  "the  District 
Munsif  should  allow  the  appellant  to 
add  a  prayer  for  the  attachment,  of  Lak- 
shmana Chetty's  decree  in  O.  8.  No.  772  of 
1920, 

v.  N.  v.  Order  set  aside. 

N.  H. 


ALLAHABAD  HIGH  COURT. 

PKIVY  COUNCIL  APPEAL  No.  37  OF  1925. 

December  18,  1925. 
Present:— Sir  Grimwood  Mears,  KT., 
Chief  Justice  and  Mr.  Justice  Lindsay. 
BHAGWATI  DAYAL-APPLICANT 

versus 

Musammat  DHAN  KUNWAR  AND 
ANOTHER— OPPOSITE  PARTIES. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  109— 
14 Final  order",  meaning  of — Interlocutory  order- 
Appeal  to  Privy  Council 

Tlio  words  "final  order"  in  s  109,  C.  P  G  ,  are  used 
in  their  ordinary  &ensj  They  mean  an  order  which 
puts  to  an  end  a  litigation  between  parties,  or  at  all 
events  disposes  so  substantially  of  the  matters  in 
issue  between  them  as  to  leave  only  subordinate  or 
ancillary  matters  for  decision  [p.  1028,  col  2  ] 

The  order  by  which  a  Court  sets  aside  a  compromise 
of  a  suit  is  an  interlocutory  and  not  a  final  order,  [p. 
1028,  col  1  ] 

Appeals  on  matters  interlocutory  in  their  nature 
sliauld  bo  allowed  to  be  preferred  to  His  Majesty  m 
Council  only  when  their  decision  will  piacticaily  put 
an  end  to  tli3  litigation,  and  finally  decide  the  rights 
of  the  paraes  [p  1028,  col  2 1 

Shankar  Bharati  v  Narasmha  Bharati,  69  Ind  Gas. 
80,  47  B  106,  21  Bom  L  R  925,  AIR  1922  Bom. 
38  \  and  Muhammad  Sajjad  Ah  Khan  v  Muhammad 
JshaqKhan^ol  Ind  Oas  501,  42  A  174,  1  U.P.L  R. 
(A )  168,  18  A  L  J  83,  followed. 

Application  for  leave  to  appeal  to  Hia 
Majesty  in  Council, 

Messrs.  Iqbal  Ahmad  and  Baleshwari 
Prasad,  for  the  Appellant. 

Mr.  Sailanath  Mukerji,  for  the  Respond- 
ents. 

JUDGMENT.— This  is  an  application 
by  B  hag  watiDayal  for  leave  to  appeal  to 
His  Majesty  in  Council  in  consequence  of  the 
reversal  by  this  Court  of  the  decision  of  the 
Subordinate  Judge,  who  allowed  a  com- 
promise between  the  parties, 

The  plaintiff  brought  a  suit  on  the  allega- 
tion that  he  had  been  adopted  in  1916  by 
Musammat  Dhan  Kunwar,  a  defendant, 
under  a  verbal  authority  given' 'by  her  de- 
ceased husband,  Salig  Ram,  Another  de- 
fendant who  was  im pleaded  was  Ajudhi* 
Prasadj  he  having  obtained  a  mortgage  ou 


1028 


RAMU  CHfiTtr  V.  iUNCHAMMAL. 


some  of  Salig  Ram's  property.  After  botli 
the  defendants  had  filed  separate  written 
statement^  denying  the  alleged  adoption 
the  parties  were  said  to  have  come  to  a 
compromise,  which  was  evidenced  by  a 
document,  dated  tlie  6th  of  August  1923,  re- 
gistered onlheiiihof  August.  In  the  ordi- 
nary course  tlr'Siiboidmate  J'jdge  issued  a 
commission  for  verification  of  the  deed  by 
the  pardanabt^n  lady,  Musimtnat  Dhan 
Kunvvar,  and  she  denied  any  knowledge  of 
the  compromise  or  having  put  her  thumb- 
impression  upon  any  document  evidencing 
an  agreement  by  which  the  suit  was  to  be 
brought  to  a  close.  She  set  up  that  if  it 
were  in  fact  her  thumb-impression  on  the 
document,  that  it  might  have  been  obtain- 
ed from  her  during  a  period  of  illness.  The 
learned  Subordinate  Judge  thereupon  in- 
quired into  the  question,  took  evidence  on 
both  sides,  and  came  to  the  opinion  that  in 
point  of  fact  the  lady  had  entered  into  the 
compromise  well  knowing  it  to  be  the  com- 
promise of  the  suit  arid  having  adequate  and 
proper  advice  and  protection  from  people 
who  surrounded  her  The  learned  Subordi- 
nate Judge,  therefore,  passed  a  decree  in  the 
terms  of  the  compromise. 

From  that  older  by  which  the  compro- 
mise was  to  be  lecorded  the  lady  appealed, 
and  a  Bench  of  this  Court  came  to  the  con- 
clusion that  although  in  fact  the  thumb-im- 
pression was  that  of  the  lady,  the  docu- 
ment was  not  fully  explained  to  her,  that 
she  did  not  understand  its  nature,  nor  had 
she  independent  advice,  and  thereupon  they 
eet  aside  the  order  of  the  learned  Subordi- 
nate Judge. 

The  value  of  the  subject-matter  of  the  suit 
and  the  value  for  the  purposes  of  the  pro- 
posed appeal  to  His  Majesty  in  Council  is 
in  excess  of  Rs.  10,000;  and  the  contention 
of  Mr,  Iqbal  Ahmad,  who  appears  for  the 
alleged  adopted  son,  Bhagwati  Dayal,  is  that 
thjS  order  of  this  High  Court  is  appealable 
to  .{he  Privy  Council.  It  happens  that  there 
is  a  decision  reported  as  Shankar  Bharati 
v.  Narasinha  Bharati  (1)  where  in  fact  the 
exact  question  arose.  Shah,  A.  C.  J.,  and 
Crump,  J.,  came  to  the  conclusion,  on  slight- 
ly different  reasoning,  that  the  order  by 
which  a  Court  set  aside  a  compromise  was 
an  interlocutory  and  not  a  final  order.  Mr. 
Justice  Crump  said  in  the  course  of  his 
judgment  "All  that  this  order  does  is  to 
decide  that  the  manner  in  which  the  lower 
(1)  69  Ind.  Gas.  80;  47  B,  103;  ?4  Bom,  L,  R,  925 

383, 


[02  1.  0.  1926] 

Court  disposed  of  this  suit  was  incorrect, 
and  that  the  suit  must  be  disposed  of  on 
the  merits,  and  not  upon  a  certain  compro- 
mise. I  cannot  see  myself  that  this  is  in 
anv  sense  a  final  order.  I  take  the  word 
'Una!'  to  be  used  in  its  ordinary  sense  and, 
therefore,  to  mean  an  order  which  puts  an  end 
to  the  litigation  between  the  parties  or,  at 
all  events  disposes  so  substantially  of  the  mat- 
tens  in  issue  between  them  as  to  leave  merely 
subordinate  or  ancillary  matters  for  deci- 
sion". 

There  is  also  a  decision  of  this  Court  in 
Muhammad  Sajjad  Ah  Khan  v.  Muhammad 
Ishaq  Khan  (2)  in  which  a  Bench  having 
considered  all  the  authorities,  and  specially 
having  had  regard  to  a  decision  of  the 
Patna  High  Court  in  the  case  of  Danby  v. 
Tufazul  Ilussain  (3)  concluded  the  judg- 
ment as  follows:  "All  of  these  cases  are 
conveniently  grouped  up  in  the  Patna  deci- 
sion and  there  is  thus  an  uniform  consensus 
of  opinion  that  appeals  on  matters  interlo- 
cutory in  their  nature  should  be  allowed  to 
be  pieferred  to  His  Majesty  in  Council  only 
when  their  decision  will  practically  put  an 
end  to  the  litigation  and  finally  decide  the 
rights  of  the  parties11.  We  think  that  is 
the  test  which  ought  to  be  applied  and  in 
this  case  it  is  obvious  that  the  decision  of 
their  Lordships  of  the  Privy  Council  would 
inone  event  only  finally  decide  the  rights  of 
one  party,  and  in  the  other  it  would  throw 
the  whole  matter  open  for  the  trial  which  has 
never  yet  been  held  upon  the  merits  of  the 
action.  We  are  therefore  of  opinion  that 
this  matter  is  not  appealable  to  His  Majesty 
in  Council  and  this  application  must  be 
dismissed  with  costs  including  fees  on  the 
higher  scale. 


8.  S. 


Application  dismissed. 


(3)  45    Ind.  Cas     290;    (1918)    Pat.    1,  4  P.   L.  W. 


MADRAS  HIGH  COURT, 

APPKAL  SUIT  No.  189  OF  1923. 

November  3, 1925. 
Present:— Mr.  Justice  Kumaraswami  Saatri 

and  Mr.  Justine  Venkatasubba  Kaa 
RAMU  OHETTYAND  OTHERS-PLAINTIFFS 
— APPELLANTS 

versus 
PANCHAMMAL  AND  ANOTBBE- 

t          DEFENDANTS— RESPONDENTS. 

Evidence  Act  (I  of  l$72)t  ,,  9l 


[92 1.  0. 1926] 


RAMU  CHETTr  0,  PANCHAMMAL. 


1029 


tion  deed— Terms  of  partition  find  division  of  status, 
p)  oof  of—  Conduct  of  parties 

That  there  was  a  division  of  status  can  be  proved 
even  if  the  deed  of  partition,  is  inadmissible  m  evi- 
dence for  want  of  registration  [P  1Q2J),  co1  2 1 

Ramngam  Ayy&r  v  llajangam  Ayyar,  (>9  ind  Caa. 
123;  46  M  87,1,  .U  ML  T  TO,  4  U  PL  R  (P  0) 
85;  16  L.  W  615;  AIR  1022  P  0  206,  27  0  W  N 
561,  4t  M  L  J  715,  ,37  C  L  J  435,  21  A  L  J  460, 
50  I  A  13t(P  C  ),  rched  upon 

An  unregistered  document  may  be  used  to  deter- 
mine the  nature  of  the  possession  held  by  a  party 
[itnd.] 

Where  a  deed  of  partition  is  inadmissible  in  evi- 
dence for  want  of  registration,  the  terms  of  the  parti- 
tion cannot  be  proved  except  by  the  document  itself 
But  if  it  is  unnecessary  to  decide  the  terms  of  parti- 
tion, it  is  open  to  a  Court  to  infer  from  the  conduct 
and  dealings  of  the  parties  that  there  was  a  division 
of  status  [p,  1030,  col  1  ] 

Appeal  against  a  decree  of  the  Court 
of  the  Subordinate  Judge,  Vellore,  in 
Original  Suit  No  88  of  1921. 

Mr.  T.  M,  Krishnaswamy  Aiyar,  for  the 
Appellants. 

Messrs  K.  Ramanatha  Shenai  and  K.  San- 
jivi  Kamath,  for  the  Respondents. 

JUDGMENT. 

Kumaraswami     Sastri,     J,— The 

plaintiff  is  the  appellant.  His  case  is  that 
the  first  defendant  and  some  others  were 
members  of  a  joint  Hindu  family,  that  on 
the  death  of  the  first  defendant's  husband 
he  became  solely  entitled  to  the  property, 
that  the  first  defendant  is  in  wrongful  pos- 
session of  the  items  mentioned  in  the 
plaint.  His  claim  is  foi  a  declaration  of 
the  plaintiff's  right  to  the  items  mentioned 
in  schedules  A,  B,  0,  of  the  plaint,  for  de- 
livery of  possession  and  for  injunction  and 
other  reliefs. 

The  case  of  the  defendant  is  that  ^  her 
husband  was  not  a  member  of  the  joint 
family  with  the  plaintiff  on  the  date  of  his 
death,  but  that  he  was  a  divided  member  of 
the  family  and  he  was  enjoying  certain  pro- 
perties in  his  own  right  and  on  his  death 
she  was  in  possession  of  them  in  her  own 
right. 

TThe  Subordinate  Judge  has  found  on  the 
evidence  adduced  that  the  defendant's  hus- 
band was  divided  in  status  and  that  she  was 
in  enjoyment  of  the  property  and  dismissed 
the  suit. 

The  appellant's  Vakil  frankly  admits 
that  he  cannot  dispute  the  correctness  of 
the  -finding  but  his  contention  is,  having 
regard  to  s,  tJ2  of  the  Evidence  Act,  the 
finding  IB  not  admissible  because  there  was 
ftg  unregistered  partition  deed  between  the 


members  of  the  family  in  1914.  And  there 
being  an  unregistered  deed  all  the  evidence 
of  the  conduct  of  the  parties  and  the  rights 
of  the  vanous  member*  is  inadmissible.  I 
am  unable  lo  agree  uilh  him  in  his  contort- 
tion.  So  far  a->  the  division  of  eta* 'in  is 
concerned,  a  lecent  deci-ion  of  thft  Privy 
Council  in  hnymujn'm  Ayvrtr  v.  Knjtmqfnn 
Ayijar  (1)  is  clear  to  t lie  effect  that  a  divi- 
sion of  status  oan  be  proved  even  though 
the  document  has  not  been  registered  It 
has  also  been  held  by  their  Lordships  of 
the  Privy  Council  that  an  unregistered 
document  may  be  used  to  determine  the 
nature  of  the  possession  held  by  a  party. 
The  Subordinate  Judge  has  not  relied  upon 
any  unregistered  partition  deed.  For  the 
purpose  of  coming  to  the  conclusion  he  has 
arrived  at,  he  takes  the  conduct  of  the 
parties  into  consideration  and  comes  to  the 
conclusion  that  not  only  has  the  division 
of  status  been  proved  but  all  the  properties 
claimed  have  been  enjoyed  by  the  defend- 
ant's husband  in  his  own  right  I  do  not 
see  why  the  evidence  as  regards  the  conduct 
of  the  parties  in  their  dealings  with  each 
other  and  with  regard  to  specific  items  of 
property  should  not,  coupled  with  the  find- 
ing of  a  division  of  status,  be  used  and 
relied  upon  to  show  that  certain  properties 
which  the  plaintiff  claims  are  not  in  wrong- 
ful possession  of  the  defendant  but  belong- 
ed to  the  defendant's  husband  I  do  n6t 
think  that  on  the  facts  of  the  case,  s  92  of 
the  Evidence  Act  is  necessary  to  be  invoked 
by  any  of  the  parties  The  plaintiff  com£s 
into  Court  and  says  that  he  is  the  absolute 
owner  of  the  property,  because  he  is  'a 
member  of  an  undivided  family.  The  de- 
fendant says  that  her  husband  was  not  a 
member  of  an  undivided  family,  that  he 
was  divided  in  status,  and  that  he  enjoyed 
certain  properties  separately,  as  a  divided 
member  of  the  family.  This  is  not  a  case 
when  a  claim  is  made  by  the  defendant  to 
any  property  on  the  allegation  that  it  came 
to  her  by  virtue  of  a  deed  of  partition  which 
is  unregistered  and  so  inoperative.  The 
plaintiff's  claim  as  a  member  of  the  joint 
family  could  not  be  sustained.  I  think  the 
decisioa  of  the  Subordinate  Judge  on  the 
facts  of  the  case  is  correct  and  would  dis- 
miss the  appeal  with  costs. 


(1)  CO  Ind  Cas  123,  48  M  373,  31  M  L  T  136,  4  U. 
P  L  R  (P  G )  85,  1C  L  W.  615,  A  I  R  1922  P  0. 
266,  27  0,  W  N  501,  44  M  L  J  745,  37  0,  I*  J.  435: 
21  A,  L.  J,  $60,  5Q  I  A.  134  (P,  0.),  '  r 


1030 


RAM  BADAN  UPADH1Y1  V.  SANRATHA  MISIU. 


[9210.1926) 


Venkatasubba  Rao,  J,— I  agree. 
According  to  the  plaintiff  he  and  the  de- 
fendant's husband  were  undivided.  On 
that  footing  he  claimed  possession.  The 
defendant  pleaded  that  there  was  a  divi- 
sion. The  lower  Court  has  dismissed  the 
plaintiffs  suit.  In  the  course  of  the  trial  it 
appeared  that  there  was  a  writing  evidenc- 
ing the  partition  but  it  was  not  registered 
and  no  attempt  was  made  to  file  it.  The 
learned  Judge  has  found  that  there  was  a 
partition  relying  mainly  upon  circumstances. 
He  has  inferred  partition  from  cireiim- 
stances  such  as  these.  The  defendant's  hus- 
band lent  monies  and  realised  them  in  his 
own  name.  He  dealt  with  the  property  as 
if  he  was  the  absolute  owner  of  it.  He 
carried  on  a  separate  business  and  was 
assessed  to  income-tax  individually.  Prom 
these  and  similar  circumstances  the  Judge 
has  inferred  a  partition.  It  is  now  contend- 
ed for  the  appellants  that  under  s.  92  of  the 
Evidence  Act  evidence  of  partition  ought  not 
to  have  been  received.  Section  92  has  clearly 
no  application.  The  appellant's  learned 
Vakil  probably  intends  to  rely  upon  s.  91. 
As  ^he  terms  of  the  partition  have  been 
reduced  to  the  form  of  a  document,  no  evi- 
dence'can  be  given  under  that  section  to 
prove  the  terms  of  that  partition  except  the 
document  itself.  This  section  does  not 
equally  apply  as  the  defendant  has  not 
attempted  to  give  evidence  in  proof  of  the 
terms  of  the  document.  The  evidence  was 
directed  to  prove  that  the  parties  lived  as 
members  of  a  divided  family.  From  their 
conduct  the  Judge  as  I  have  said  inferred 
a  partition.  It  was  not  necessary  to  decide 
what  the  terms  were  on  which  the  partition 
was  made,  nor  does  the  Judge  purport  to 
decide  those  terms.  He  merely  finds  that 
the  parties  became  divided  and  I  do  not 
think  that  there  is  anything  in  the  Evidence 
Act  to  prevent  him  from  doing  it,  He,  in 
effect,  says  "the  plaintiff  says  the  family  was 
undivided.  I  find  they  were  divided  in 
interest".  The  Judge  says  nothing  more. 
The  plaintiff  having  come  to  Court  with 
the  case  that  the  family  wa&  undivided  and 
his  case  having  been  found  to  be  false,  his 
suit  was  liable  to  be  dismissed.  The  plaint- 
iff does  not  ask  in  his  plaint  that  if  there 
was  a  division  in  status,  the  Court  should 
determine  what  the  properties  are  to  which 
he  is  entitled.  On  the  finding  the  plaint- 
iff's case  was  untrue  it  was  open  to  the 
Judge  to  dismiss  the  suit.  Section  91  is 
not  m  the  defendant's  way  and  the  decision 


of  the  Judge  is  perfectly  correct.  I  agree 
that  the  appeal  should  be  dismissed  with 
costs. 

v.  N.  v.  Appeal  dismissed. 

B.  D. 


ALLAHABAD  HIGH  COURT. 

CIVIL  REVISION  No.  128  OF  1925. 

December  22,  1925. 

Present :— Mr.  Justice  Daniels. 

RAM  BADAN  UPADHIVA  AND 

ANOTHER— DEFENDANTS — APPLICANTS 

versus 

SANKATHA  MI8RA  AND  OTHERS- 
PLAINTIFFS— OPPOSITE  PARTIES. 

Civil  Procedure  Code  (Act  V  of  1908),  s.  H5t 
0  XX11I,  T.  I— Application  for  withdrawal  of  appeal 
—  Order  passed  for  withdrawal  of  suit— Revision 

On  an  application  not  to  withdraw  the  appeal  but 
to  withdraw  the  suit  the  Appellate  Court  paised  the 
f  olio  wing  order--- 

"This  appeal  is  withdrawn,  hence  it  is  dismissed 
The  appellant  may  bring  a  fresh  suit  if  neces- 
sary" 

Held,  that  the  order  was  open  to  revision  inasmuch 
as  (f)  it  was  not  warranted  at  all  by  the  terms  of  the 
application  and  (ii)  it  was  passed  without  any  reasons 
and  without  the  Court  applying  its  mind  to  the 
question  whether  there  were  sufficient  grounds  to 
allow  a  withdrawal  with  permission  to  file  afresh  suit. 

Ganga  Prasad  v.  Kishm,  87  Ind.  Cas.  175;  47  A, 
319;  L.  it.  G  A.  155  Civ  ;  A.  I,  R.  1925  All.  466,  refer- 
red to. 

Civil  revision  against  an  order  of  the 
Subordinate  Judge,  Jaunpur,  dated  the 
29th  of  April  1925. 

Mr.  N.  Upadhiya,  for  the  Applicants. 

Mr.  Surendra  Nath  Verma,  for  the  Oppo- 
site Parties. 

JUDGMENT.— This  is  an  application 
in  revision  of  an  order  passed  under  (X 
XXIII,  r.  1,  (1  P.  C.,  giving  the  plaintiff 
permission  to  file  a  fresh  suit.  The  order 
is  an  extraordinary  one,  It  was  passed  by 
the  Appellate  Court  and  runs  thus : — 

"This  appeal  is  withdrawn;  hence  it  is 

dismissed The  appellant  may   bring  a 

fresh  suit  if  necessary."  The  effect  of  the 
dismissal  of  the  appeal  is  to  leave  the  judg- 
ment of  the  original  Court  standing,  and 
though  the  learned  Subordinate  Judge  says 
that  the  appellant  may  brirjg  a  fresh  suit 
he  has  passed  no  order  for  withdrawing 
the  original  suit.  No  reasons  are  given  for 
his  order.  It  is  contended  that  these 
reasons  are  supplied  by  an  application  pre- 
sented on  the  same  date.  The  application 
ip  not  of  a  jiature  to  support  any  order 


[921,0.1926] 


allowing  the  suit  to  be  withdrawn  with  per- 
mission to  bring  a  fresh  one.  It  is  abso- 
lutely vague.  It  gives  no  particulars  what- 
ever. It  states  that  some  matters  unspecified 
are  not  mentioned  in  the  plaint  and  that 
Borne  other  matters  are  not  fully  mentioned, 
and  that  there  is  some  legal  flaw  the  nature 
of  which  is  not  even  indicated.  A  prelimi- 
nary objection  is  raised  that  no  revision 
lies,  but  it  has  been  held  in  numerous  cases 
the  most  recent  case  being  Ganga  Prasad 
v.  Kiskni  (1)  that  where  an  order  of  this 
kind  is  passed  without  any  reasons  and 
with'out  the  Court  applying  its  mind  in  the 
least  to  the  question  whether  there  were 
sufficient  grounds  to  allow  a  withdrawal 
with  permission  to  file  a  fresh  suit  a  revi- 
sion application  can  be  entertained.  I  find 
further  that  the  application  on  which  the 
order  was  passed  was  not  an  application  to 
withdraw  the  appeal  but  an  application  to 
withdraw  the  suit.  The  learned  Counsel  for 
the  applicant  contends  that  as  he  only  com- 
plains about  the  portion  of  the  order  which 
gave  permission  to  file  a  fresh  suit  only  that 
portion  of  the  order  can  be  set  aside.  It 
appears  to  me,  however,  that  I  must  look 
at  the  order  as  a  whole.  The  Court  below 
professing  to  allow  the  application  passed 
an  order  which  was  not  at  all  warranted  by 
the  terms  of  the  application  The  appel- 
lant had  in  fact  never  applied  to  withdraw 
his  appeal.  I  must,  therefore,  set  aside  the 
whole  of  the  order  passed  by  the  Court 
below  and  direct  that  Court  to  re-hear  the 
appeal  on  the  merits. 

The  applicant  will  have  his  costs  of  this 
revision  in  any  event. 

s.  D.  Order  set  aside. 

(1)  87  Ind.  Cas.  175,  47  A.  319,  L,  B.  6  A.  153  Civ., 
A,  L  R.  1925  All.  466. 


&AMDHANI  MUCHI  V.  KHAKSfcARDAS  TAIL 

Bona  fide  review  proceeding* — Issue 


1031 


on 


CALCUTTA  HIGH  COURT. 

APPBAL  FROM  APPELLATE  DECREE  No.  802 

OP  1923. 
July  29,  1925. 

Present: — Mr.  Justice  Ohakravarli. 

RAMDHANI  MUCHI— PLAINTIFF 

— APPELLANT 

versus 
KHAK8HARDA8  TATI  AND  ANOTHER 

—DEFENDANTS-— RESPONDENTS. 
Limitation  Act  (IX   of    1008),  s.  5— Appeal 

tim~-$xten9ion  of  time— Discretion  of  Court 


of    notice 
application,  if  sufficient — Prospect  of  success 

Discretion  of  Court  must  not  be  exercised  arbitrarily 
but  upon  sound  legal  principles,  [p  1032,  col  1  ] 

Bnj  Indar  Singh  v  Kanshi  Ram,  42  Ind  Cas  43, 
45  0  i)l  at  p  106,  33  M  L  J  486,  22  M  L  T.  362,  6 
L  W  592,  126  P  W  R  1917,  15  A  L.  J  777,  19  Bom, 
L  K  866,  3  P  L  W  313,  26  0  L  J,  572,  104  P.  R. 
1917,  (1917)  M  W  N  811,  220  W.  N.  169,  127  P  L. 
R  1917,411  A  218  (P  C),  relied  on 

In  an  application  for  extension  of  time  by  an  appel- 
lant who  has  been  prosecuting  review  proceedings,  the 
applicant  must  show  that  the  application  for  review 
was  prossciited  with  due  diligence  and  that  there  were 
reasonable  grounds  for  filing  such  an  application  [p. 
1033,  col.  1,] 

When  the  applicant  fulfils  the  above  conditions  and 
the  Court  either  ignores  them  or  decides  the  applica- 
tion upon  othei  grounds  there  would  be  no  exercise  of 
judicial  discretion  [ibid  \ 

The  test  of  a  bona  fide  application  for  review  is  not 
the  prospect  of  success  of  the  applicant  Issue  of 
notice  on  the  opposite  party  is  sufficient,  {ibid  ] 

Sharpe  v.  Wake  field,  (1891)  A   C.  173,  60  L.  J   M.  0 
" R    551   55J    p  197  aQd  In  r* 

B,  L,  R.  Sup    Vol.  728,  7  W 


73,  64  L  T  180,  39  W 
tirojender  Coomar  Royt 
R   529,  followed. 


Appeal  against  a  decree  of  the  District 
Judge,  Mymensingh,  dated  the  18th  of 
August  1922,  affirming  that  of  the  Munsif, 
Third  Court,  at  Mymensingh,  dated  the  3rd 
of  March  1922. 

Babu  Birendra  Kumar  De,  for  the  Ap» 
pellant. 

Babu  Phanindra  Lai  Moitra,  for  the  Re- 
spondents. 

JUDGMENT.-The  plaintiff  is  the 
appellant  before  me  The  suit  out  of  which 
this  appeal  arises  was  brought  for  a  decla- 
ration of  a  right  of  way  and  for  a  perpetual 
injunction  restraining  the  defendants  from 
causing  any  obstruction  to  the  plaintiff's 
use  of  the  pathway.  The  defendants  denied 
the  plaintiff's  right  as  claimed. 

The  Court  of  first  instance  dismissed  the 
suit.  The  plaintiff  then  applied  for  a  re- 
view of  the  judgment  of  the  learned  Munsif. 
Notice  was  issued  upon  the  defendants  to 
show  cause  why  the  review  should  not  be 
admitted.  On  the  application  of  the  de- 
fendant the  application  for  review  was 
taken  up  before  the  date  fixed  for  the  hear- 
ing in  the  notice,  and  was  ultimately  dis- 
missed. I  ought  to  have  stated  that  the 
application  for  review  was  based  upon  the 
ground  of  discovery  of  fresh  evidence. 
After  the  application  for  review  was  dis- 
missed the  plaintiff  filed  an  appeal  to  the 
District  Judge  against  the  original  judg- 
ment of  the  Munsif  dismissing  the  suit. 
The  learned  Judge  has  dismissed  the  appeal 
on  the  ground  that  it  was  barred  by 


1032 


RAMDHANI  MUCHI  V,  KHAKSHARDAS  TATI. 


[92 1,  0. 1928) 


tation.  The  appeal,  undoubtedly,  was  filed 
long  after  the  time  allowed  by  law  for  an 
appeal  to  be  filed  befoie  a  District  Court. 
But  the  plaintiff  prayed  that  the  time  occu- 
pied by  the  application  for  review  should 
be  deducted  in  calculating  the  period  of 
limitation. 

The  learned  District  Judge  confines  him- 
self only  to  the  question  of  limitation  in 
filingthe  appeal;  and  although  his  judgment 
contains  some  observations  on  questions  as 
to  the  merits  of  the  case  discussed  by  the 
Munsif,  the  observations  of  the  learned 
District  Judge  were  only  in  reference  to 
the  question  as  to  limitation  on  account  of 
the  delay  in  filing  the  appeal  and  not  for 
the  purpose  of  deciding  the  case  on  the 
merits.  The  learned  District  Judge  says  in 
his  judgment:  "He  was  in  fact  prosecut- 
ing review  application  with  what  appears  to 
have  been  quite  adequate  diligence  for  a 
time  which  if  credited  to  him  would  render 
his  appeal  timely."  The  learned  Judge, 
therefore,  finds  that  the  application  for  re- 
view was  filed  and  prosecuted  with  due 
diligence.  He  then  says:  "What  is  urged 
against  him  is  that  the  review  petition  was 
not  a  proper  one,  being  one,  which  had  no 
reasonable  prospect  of  success."  Later  on 
the  learned  Judge  says:  "The  question  for 
decision,  therefore,  is  whether  there  were 
reasonable  and  proper  grounds  of  review  in 
this  case/1  And  after  discussing  the  merits 
of  the  application  for  review  the  learned 
Judge  says:  "Regarding  this  part  of  the 
case,  therefore,  the  review  petition  never 
had  any  prospect  of  success  whatsoever.11 
Then  he  concludes  his  judgment  by  observ- 
ing "I  accordingly  decide  that  there  were 
no  reasonable  or  proper  grounds  of  review 
and  that  the  appeal  must  be  rejected  as 
time-barred." 

The  question  no  doubt  primarily  is  a 
question  of  fact*  The  contention  of  the 
plaintiff  was  that  in  the  circumstances  of 
this  case  the  Court  should,  in  the  exercise 
of  its  discretion,  have  held  that  the  appel- 
lant had  sufficient  cause  for  not  preferring 
the  appeal  within  such  period.  The  ques- 
tion as  to  the  exercise  of  discretion  is  no 
doubt  also  a  question  which  is  ordinarily 
a  question  of  fact.  But  such  discretion  must 
not  be  exercised  arbitrarily  but  upon 
sound  legal  principles  which  govern 
the  exercise  of  such  discretion.  Their 
Lordships  of  the  Judicial  Committee  laid 
down  t£e  following  rule  in  the  cage  of 


Brij  Indar  Singh  v.  Kanshi  Ram  (1):  "It 
was  strenuously  urged  by  the  learned 
Counsel  for  the  respondents  that  inasmuch 
as  the  power  in  s.  5  is  admittedly  a  discre- 
tionary power,  this  Board  ought  not  to 
interfere  with  the  discretion  exercised  by 
Mr.  Justice  Johnston e,  and  he  cited  cases 
of  which  Sharpe  v.  Wake  field  (2)  may  be 
taken  as  a  type.  In  reality,  however,  that 
case  is  against  him.  For  it  laid  down  that 
discretion  there  as  here  must  be  a  judicial 
and  not  an  arbitrary  discretion.  Now  if 
the  Judge  who  purports  to  exercise  the 
discretion  does  so  under  the  view  that  there 
is  no  general  rule,  when  in  fact  there  is 
one,  if  he  has,  to  use  an  expression  often 
used  in  another  class  of  cases,  misdirected 
himself  as  to  the  law  to  be  applied  to  the 
case  he  cannot  exercise  a  judicial  discretion, 
and  the  Superior  Court  in  this  case  this 
Board-^must  either  remit  the  case  or  exer- 
cise the  diacietion  themselves."  Now  the 
learned  Vakil  for  the  appellant  has  con- 
tended before  me  that  in  exercising  his 
discretion  the  learned  Judge  has  apparently 
recognized  no  principle  or  general  rule  that 
exists  as  regards  the  exercise  of  discretion. 
Their  Lordships  of  the  Judicial  Committee 
referred  with  approval  to  the  rule  which 
was  laid  down  by  the  Full  Bench  of  this 
Court  in  the  case  of  In  re  Brojender  Coomar 
Roy  (3).  The  rule  so  approved  by  their 
Lordships  of  the  Judicial  Committee  runs 
thus:  "If  a  party  presents  an  application 
for  review  of  judgment  within  the  ordinary 
period  limited  for  appealing,  the  time  occu- 
pied by  the  Court  in  disposing  of  such 
application  will  not  be  reckoned  among  the 
days  limited  for  appealing,  but  will  be 
added  thereto  and  a  memorandum  of  appeal 
presented  within  such  extended  period  will 
be  received  as  presented  within  time."  It 
is  not  disputed  in  the  present  case  that  if 
the  time  occupied  by  the  application  for 
review  is  deducted  the  appeal  would  be  in 
time.  The  only  question  is  as  to  whether 
the  application  for  review  fulfilled  the  con- 
ditions laid  down  by  their  Lordships  of  t,he 
Judicial  Committee.  The  question  was  also 
discussed  at  considerable  length  by  Mr. 
Justice  Mukerji  in  the  case  of  Gobindq  Lai 

(1)  42  led.  ("as  43;  45  C    94  at  p  1C6;  33  M.  L.  J. 
4£6;  22  M.  L.  T  362,  C  L.  W.  £92;   326  P.  W.  R.  1917; 
]5  A.  L    J  7?7, 19  Bern    L  K.  6C6.  3  P  L.  W.  313;  26 
0  L  J  572;J04P  R  1917;  (1917)  M    W.  K  «1,*20. 
W.  N.  169,  127  P.  L.  K  1917;  44  T  A  218  (P,  C.) 

(2)  (Ufll)  A  0.  173,  (0  L.  J.  M.  G.  73;  C4  L,  T.  160; 
3D  W.  E.  551 ;  55  J.  P.  197, 

(3)  13,  L.  ».  Sup.  VpJ,  W\  7  AV.  K.  519, 


[92  L  0.  1928] 


RAMDHANI  MUOfll  V.  KHAK9HARDAS  TATl, 


1031 


Shiba  Das  Chatterjee  (4).  After  dis- 
cussing the  Full  Bench  case  referred  to  by 
their  Lordships  of  the  Judicial  Committee 
and  exhaustively  discussing  all  the  cases 
on  the  point  he  laid  down  the  rule  as  fol- 
lows (at  page  1329*)  "where,  on  the  other 
hand,  a  party  has  bona  fide  presented  an 
application  for  review  of  judgment  and 
upon  such  application  notice  has  been 
issued  to  the  opposite  party,  the  applicant 
ought  not  to  be  deprived  of  the  benefit  of 
the  principle  laid  down  in  the  Full  Bench 
cases,  because  after  hearing  both  sides,  the 
Court  comes  to  the  conclusion  that  there 
are  no  good  grounds  for  a  review."  Later 
on  the  learned  Judge  says  (at  page  1330*). 
"Taking  all  the  cases  together,  the  rule, 
which  may  be  fairly  deduced  therefrom, 
appears  to  be  that  a  bona  fide  application 
for  review  of  judgment  presented  and  pro- 
secuted with  due  diligence  should,  except 
in  special  cases,  be  regarded  as  a  sufficient 
cause  for  not  presenting  the  appeal  within 
the  prescribed  period  "  It  appears,  there- 
fore, all  that  the  appellant  has  to  show  is 
that  he  prosecuted  the  review  application 
with  due  diligence  and  that  there  were 
reasonable  grounds  for  filing  such  an  app- 
lication for  review.  If  these  conditions  are 
fulfilled  and  the  Com  t  either  ignores  this 
rale  and  decides  the  questions  upon  the 
grounds  which  are  in  disregard  of  or  are 
inconsistent  with  the  rule  so  laid  down  then, 
in  the  words  of  the  Judicial  Committee  in 
the  case  which  1  have  already  cited,  the 
learned  Judge  has  misdirected  himself  as 
to  the  law  to  be  applied  to  the  case  And 
although  the  question  to  be  decided  was  a 
question  as  to  the  discretion  to  be  exercised 
under  s.  5  of  the  Limitation  Act,  that  dis- 
cretion must  be  a  discretion  exercised  not 
arbitrarily  but  on  principles  which  govern 
the  exercise  of  ,  judicial  discretion.  The 
learned  Judge,  as  I  have  pointed  out,  does 
not  exercise  his  discretion,  because  he  was 
unable  to  find  that  there  were  reasonable  or 
proper  grounds  of  review.  As  I  read  his 
judgment  what  he  really  means  to  say  is 
that  in  his  opinion  the  application  for  re- 
view had  no  prospect  of  success.  But  that 
is  not  the  criterion  for  the  decision  of  the 
question.  If  the  petitioner  exercised  due 
diligence  in  filing  and  prosecuting  his  ap- 
plication and  if  it  is  shown  that  his  appli- 
cation was  bona  fide  and  is  based  on  rea- 

(4)  33  0  1323;  10  0  W  N  986.  3  0  L  J.  515 
33 


sonable  ground  then^  according  to  the 
authority  I  have  cited,  he  ought  to  have 
been  allowed  a  deduction  of  the  time  occupi- 
ed in  prosecuting  the  review.  In  the  pre- 
sent case,  as  I  have  already  stated,  after 
the  application  was  filed  notice  was  issued 
upon  the  opposite  party,  the  time  occupied 
from  the  date  of  the  notice  until  the  final 
disposal  of  the  matter  by  the  learned 
Munsif  was  entirely  beyond  the  control  of 
the  appellant.  So  far  as  I  know  the  practice 
of  this  Court,  it  has  been  always  consider- 
ed that  the  issue  of  notice  by  the  Court 
upon  the  opposite  party  was  sufficient  evi- 
dence of  the  reasonableness  of  filing  the 
application  for  review,  and  in  such  cases 
the  time  occupied  in  piosecuting  the  re- 
view has  been  deducted  from  the  time 
which  had  elapsed  between  the  date  of  the 
deciee  and  the  date  of  filing  the  appeal. 
This  is  also  the  rule  which  Mr.  Justice 
Mukerji  deduced  from  the  cases  It  is  not 
necessary  for  the  applicant  for  review  to 
show  as  the  learned  Judge  seems  to  me  to 
demand  that  his  application  for  review 
had  a  prospect  of  success  as  demanded  by 
him.  In  fact  the  whole  judgment  of  the 
learned  Judge  is  devoted  to  a  discussion  of 
the  merits  of  the  review  application.  All 
that  is  needed  is  to  find  whether  the  ap- 
plication was  bona  fide  and  that  applicant 
for  levievv  had  reasonable  grounds  for  filing 
the  application  for  review,  and  that  is  all 
that  the  rule  demands.  It  should  be 
observed  that  an  application  for  review  of 
judgment  on  discovery  of  fresh  evidence 
stands  on  a  different  footing  than  an  appli- 
cation for  review  on  the  same  materials. 
In  a  case  like  that  the  matter  cannot  be 
disposed  of  without  hearing  both  parties. 
I  think,  therefore,  that  the  judgment  of  the 
learned  District  Judge  is  erroneous,  and  he 
has  failed  to  exercise  his  discretion  on 
sound  principles  which  govern  the  exercise 
of  such  discretion. 

The  learned  Judge  has  found  that  uhe 
(the  appellant)  was  in  fact  prosecuting  re- 
view application  will  what  appears  to  have 
been  quite  adequate  diligence  for  a  time 
which  if  credited  to  him  would  render  his 
appeal  timely."  Then  notice  was  issued 
upon  the  opposite  party  and  after  hearing 
both  parties  the  application  was  refused. 
Applying  the  principles  above  referred  to, 
the  appeal  should  have  been  held  not  barred 
and  the  learned  Judge  ought  to  have  heard 
the  appeal  on  the  merits  I  set  aside,  the 
decree  of  the  learned  District  Judge  remit  the 


1034 


JASODA  KOBE  0,  JANAK  MIS8IR, 


appeal  to  him  to  be  heard  according  to  law, 
I  think  the  appellant  is  entitled  to  the 

costs  of  this  appeal.    The  other  costs  will 

abide  the  result. 

M.  B.  Appeal  allowed. 

N.  H. 


PATNA  HIGH  COURT. 

APPEAL  FROM  ORIGINAL  DECREE  No,  58 

OF  1921. 

December  23,  1921 
Present;— Justice  Sir  JwalaPrasad,  KT., 

and  Mr.  Justice  Adami. 
Musammat  JASODA  KUER— PLAINTIFF 
— APPELLANT 

versus 

JANAK  MISS1R  AND  OTHERS -DEFENDANTS 
— KESPONDENTS. 

Registration  Act  (XVI  of  W08)t  s  28— Place  of 
registration —Property  included  bona  fide  in  sale-deed 
to  give  jurisdiction  to  particular  Sub-Registrar — Fraud, 
absence  of —Registration,  validity  of 

In  a  proceeding  for  registration  of  a  document  the 
question  of  title  to  the  property  purporting  to  be  con- 
veyed by  the  document  cannot  be  gone  into  Section 
28  of  the  Registration  Act  does  not  require  anything 
more  than  the  existence  of  a  property  within  the 
jurisdiction  of  a  particular  Sub-Kegistrar  in  order  to 
entitle  him  to  register  a  document  transferring  that 
property,  [p  1013,  col.  2;  p.  1044,  col  1.] 

AVhore  a  vendor  in  order  to  enable  himself  to 
register  a  sale-deed  relating  to  certain  property  in 
the  office  of  a  particular  Sub-Registrar  obtains  a  con- 
veyance 111  his  own  name  of  certain  property  situated 
within  the  jurisdiction  of  that  Sub-Registrar  and 
then  includes  it  in  the  sale-deed  executed  by  him,  the 
registration  of  the  sale-deed  by  that  particular  Sub- 
Registrar,  in  the  absence  of  any  intention  to  defraud, 
is  perfectly  valid,  [p.  1043,  col.  1 .] 

Appeal  from  a  decision  of  the  Special 
Subordinate  Judge,  Palamau,  dated  the  6th 
December  1920. 

Messrs.  Syed  Hasan  Imam,  Khurshaid 
Husnain  and  Syed  All  Khan,  for  the  Appel- 
lant. 

Messrs.  P.  C.  Roy  and  N.  N.  Sen,  for  the 
Respondents. 

JUDGMENT. 

Jwala  Prasad,  J.— This  appeal  arises 
out  of  a  suit  in  ejectment.  Shorn  of  the 
details,  the  plaintiff's  case  is  that  village 
Keri  asli  and  dakhli  including  its  Tola 
Bhagiya  was  the  ancestral  khairat  property 
of  three  brothers,  tn>.f  Kinu  Misra,  Gopal 
Misra  and  Rupan  Misra.  Tola  Bhagiya  is 


[92  L  0. 1926J 

one  of  the  dajchli  or  dependent  villages  of 
Mouza  Keri.  It  was  let  out  in  mokarrari 
by  Rupan  Misra  Jtnd  his  co-sharers  to  dne 
Prabhu  Narayan  Singh  and  others  who 
granted  a  zarpeshgi  lease,  dated  7th  April 
1887,  of  their  mokarrari  right  in  favour  of 
Bhawan  Sahu  and  others.  Defendant  No.  6 
is  in  possession  of  Tola  Bhagiya  of  zarpeshgi- 
dar  under  sale-deed,  dated  the  18th  March 
1909  (Ex.  13).  The  three  brothers  Kinu 
Misra,  Gopal  Misra  and  Rupan  Misra  are 
dead.  Defendant  No.  1  is  the  son  of  Kinu 
Misra,  and  defendants  Nos.  2  to  5  are  the 
sons  of  Gopal  Misra. 

On  the  22nd  May  1895,  corresponding  to 
Jeth  14th,  1952  Sambat,  defendant  No.  1 
Janak  Misra,  son  of  Kinu  Misra,  Gopal 
Misra  father  of  defendants  Nos.  2  to  5  and 
Rupan  Misra  conveyed  to  plaintiff  by  a 
deed  of  sale  (Ex.  3- A)  the  whole  of  village 
Keri  including  Tola  Bhagiya  and  other 
appurtenant  Tolas  for  a  consideration  of 
Rs.  8,900,  and  in  pursuance  of  the  said 
kabala  delivered  possession  of  the  same  to 
her.  The  plaintiff  continued  to  be  in  peace- 
ful possession  of  the  disputed  property  and 
has  been  paying  cesses  to  the  Kumar  of 
Tori,  proprietor  of  the  village.  The  plaint- 
iff's husband  Bahadur  Sahu  died  in  1909, 
and  she  being  a  pardahnashin  lady  there 
was  nobody  to  look  after  her  interest  pro- 
perly. The  defendants  taking  advantage  of 
this  began  to  instigate  the  tenants  of  Keri 
to  stop  paying  rent  to  the  plaintiff,  and 
managed  to  have  Tola  Bhagiya  mapped  and 
recorded  as  an  independent  village  and  to 
have  some  five  hamlets  or  Tolas  which  really 
appertain  to  Keri  proper  included  in  Tola 
Bhagiya.  They  wrongfully  and  fraudulent- 
ly got  their  names  recorded  in  the  settle- 
ment papers.  The  plaintiff  coming  to  know 
of  this,  preferred  an  objection  under  s.  83 
of  the  Chota  Nagpur  Tenancy  Act,  which 
was,  however,  rejected.  The  Record  of 
Rights  was  finally  published  in  Keri  on  the 
14th  January  and  in  Bhagiya  on  the  21st 
January  1916,  After  this  publication  the 
defendants  dispossessed  the  plaintiff  from 
the  whole  property  ^in  1916.  Upon  these 
allegations  the  plaintiff  claims  her  title 
under  the  registered  kubala,  dated  the  22nd 
May  1895,  and  also  by  adverse  possession  to 
the  whole  of  village  Keri  asli  mai  dakhli 
including  its  hamlets.  She  further  seeks 
a  declaration  to  the  effect  that  Bhagiya 
is  a  mere  Tola  (hamlet)  whictt  appertains  to 
village  Keri,  and  is  not  an  independent 
\  that  the  real  boundaries  of  Bhagiya 


[92  L  0. 1928J 


JASODA  KUER  t>.  JANAK  MISSIR, 


1035 


are  those  contained  in  the  kabala  of  defend- 
ant No.  6  (Ex.  13),  dated  the  18th  March 
1809  and  that  the  said  defendant  only  is 
entitled  to  hold  the  area  of  Bhagiya  which 
is  covered  by  bis  kabala  and  that  the  re- 
maining portion,  which  has  been ,  mapped 
as  part  of  Bhagiya  by  the  Revenue  Author- 
ities in  courseof  the  recent  Cadastral  Survey 
appertains  to  JCeri  proper.  The  plaintiff, 
therefore,  prays  for  recovery  of  possession, 
of  Keri  and  its  hamlets  as  detailed  in  the 
plaint,  with  the  exception  of  the  trees  men- 
tioned in  Sch.  A,  together  with  mesne 
profits  of  the  value  of  Rs.  2,400,  from  Sambat 
1973  to  1975  and  future  mesne  piofits 
pendente  lite. 

Three  sets    of   written  statements  were 
filed  in  the  case:  (1)  by  defendant  No.    1 
Janak  Misra,  (2)  by  defendants  Nos.  2  to  5 
and  (3)  by  defendant  No.  G  the  zarpeshgidar 
The  allegations  in  the  first  two   pleadings 
are    substantially    the  same.    They   plead 
amongst  other  things  that  the  suit  is    not 
maintainable  by  plaintiff,  impugning  the 
kabala  of  1895  (Ex.  3- A)  set  up  by  the  plaint- 
iff as  a  forged  and  fraudulent    transaction, 
that  it  is  bad  for  defect   of  parties  and    is 
barred    by  limitation.    They  had  no  pro- 
perty   at  Ranch  i  and  as    such  there  was 
fraud    in   legistration.    Defendant    No.   1 
was  gained   over  by    plaintiff's    husband 
Bahadur  Sahu,  who  was  a  famous  litigant, 
They  had  incurred  no  debts  and  the  so- 
called  creditors  were  creatures  of  Bahadur 
Sahu.    Bhagiya  has  correctly  been  surveyed 
and  mapped.    Plaintiff  never  held   posses- 
sion of  the  property  nor  collected  any  rents 
from  the  tenants.    Defendant  No.  1  further 
contends  that  Bahadur  Sahu  was  his  agent 
(mukhtear-am\  that  he  was  entirely  under 
his  influence  and  executed  a  document  in 
favour   of  Bahadur  Sahu  and  his  brother 
Binda  Sahu  on  the  representation  that  he 
would  not  have  to  part   with  possession  of 
the  property  and  that  it  would  protect  his 
interest   in  the   same.    Defendant  No.     6 
alleges  that  the  mokarraridars  Sham  Karan 
Bharathi  and  others  should  have  been  made 
party  to  the  suit,  that  Bhagiya  has  correctly 
been  measured  by  the  Revenue  Authorities 
as  an  independent  moma>  that  the  khairat- 
dar  of  Keri  is  only  entitled  to  get  an  annual 
rent  of  Rs.    5   from  the    mokarraridar  of 
Bhagiya  and  that  defendants  Nos.   1  to  5 
have  all  along  been  in  possession  of  Keri 
and  the  plaintiff  had  no  manner  of  title  in 
or  possession  of  the   property.    He   pleads 
limitation  and  contends  that  the  plaintiff 


cleverly  managed  to  get  her  name  recorded 
in  course  of  the  settlement  proceeding  in 
the  district  without  being  in  possession  of 
the  property,  He,  however,  does  not  appear 
to  have  taken  any  keen  interest  in  the 
Court  below  and  has  not  entered  appear- 
ance in  this  Court.  The  real  disputants 
are  defendants  Nos.  1  to  5,  and  the  two 
written  statements  filed  by  them  are  mutatis 
mutandis  the  same,  The  following  issues 
were  framed  in  the  Court  below: — 

(1)  "Has    the     plaintiff    any    cause    of 
action?" 

(2)  'Is  the  Court-fee  paid  insufficient?" 

(3)  "Is  the  suit  barred  by  limitation?" 

(4)  "IsBhagiya  a  Tola  of  village  Keri  with 
boundaries  as  stated  in  the  kabala,   dated 
the  22nd  May  1895,  or  is  it  an  independent 
village  as  stated  by  defendant  No    G  ?" 

(5)  "Has  the  plaintiff  acquired  any  right, 
title  or  interest  in  village  Keri  and  Tola 
Bhagiya  and  other  Tolas  with  the  exception 
of  the  trees  mentioned  in  the  plaint  by  her 
alleged  purchase?" 

(6)  "Is  the  plaintiff  entitled  to  get  pos- 
session of  the  disputed  property?" 

(7)  "Is  defendant  No.  G  a  mere  zarpeshgi- 
dar  of  Bhagiya  only?" 

(8)  "Is  the  plaintiff  entitled  to  get  mesne 
profits'-'    If  so,  how  much?" 

(9)  "To  what  relief,  if  any,  is  the  plaintiff 
entitled?" 

(10)  "19     the   suit    bad    for    defect    of 
parties?" 

(11)  "Is  the  suit  maintainable  by  plaint- 
iff?" 

(12)  "Whether  the  kabala  set  up  by  the 
plaintiff  is  illegal?    Does  ifc  affect  the  pro- 
perty conveyed  thereby?" 

(13)  "Was  plaintiff's  husband  a  mukhtear- 
am  of  the  defendant?    Did  he  commit  any 
breach  of  faith  in  taking  the  above  kabala? 
Is  it  binding  on  the  defendants?" 

Issue  No.  2  is  stated  by  the  learned  Sub- 
ordinate Judge  not  to  have  been  pressed  by 
the  defendants.  Issue  No.  10  has  been  decid- 
ed in  favour  of  the  plaintiff.  The  remaining 
issues  were  decided  against  the  plaintiff. 
In  the  result  the  Subordinate  Judge  dis- 
missed the  plaintiffs  suit. 

The  learned  Subordinate  Judge  has  con- 
sidered issues  Nos.  3,  5,  6,  and  13  together. 
The  plaintiff's  title  is  based  upon  the  kabala 
of  the  22nd  May  1895  (Ex.  3- A),  and  the  first 
question  is  whether  this  kabala  was  execut- 
ed by  Rupan  Misra  and  Janak  Misra  and 
Gopa  Misra  the  predecessor-in- interest  o! 


1036 


JASODA  KUER  V.  JANAK  MIS3IR. 


defendants  Nos.  2  to  5.  The  learned  Sub- 
ordinate Judge  says  that  "as  regards  the 
genuineness  of  the  kabala  (Ex.3-A)  noexpress 
issue  was  laid  down1'.  He  says  that  defend- 
ants Nos.  2  to  5,  the  sons  of  Qopal  Misra, 
emphatically  deny  the  genuineness  of  the 
deed  and  that  the  pleadings  of  defendant 
No.  1  Janak  Misra  as  set  forth  in  his 
written  statement  are  "sufficiently  vague," 
but,  says  the  learned  Subordinate  Judge, 
taking  together  his  pleadings  and  deposi- 
tion he  also  challenges  the  execution  of 
the  deed.  Thus,  although  no  definite  issue 
was  framed  as  to  the  genuineness  of  the 
kabala,  the  learned  Subordinate  Judge 
has  tried  to  deal  with  the  question.  He 
disposes  of  the  witnesses  called  by  the 
plaintiff  to  prove  the  execution  of  the  deed 
by  Rupan,  Janak  and  Gopal  with  the 
remark  that  these  witnesses  are  more  or 
less  creatures  of  the  plaintiff's  husband 
Bahadur  Salm  and  that  most  of  them, 
though  they  say  that  the  execution  took 
place  in  their  presence,  did  not  subscribe 
themselves  as  witnesses  to  the  deed.  As 
regards  the  signatures  of  the  executants 
upon  the  deed  in  question,  he  observes: 
"Though  each  of  them  purported  to  have 
signed  baqalam  khas  (by  his  own  pen) 
the  three  signatures  were  affixed  evidently 
by  the  same  pen  and  hand.  It  is  beyond 
dispute  that  whoever  he  might  have  been, 
it  was  the  one  and  the  same  person  who 
signed  the  names  of  the  three  executants 
on  the  deed.  Again,  though  similarity  of 
handwriting  is  no  criterion  for  testing  the 
genuineness  of  a  deed,  my  attention  has 
been  drawn  by  the  plaintiff's  Pleader  to 
the  signatures  of  those  alleged  executants 
appearing  on  certain  registered  mortgage- 
deeds  (Exs.  4  to  4  0).  But  I  must  say  that 
the  signature  of  Rupan  as  affixed  to  the 
kalala  does  not  resemble  the  one  appearing 
on  the  mortgage-deed  (Ex.  4)." 

There  is,  however,  no  such  observation 
as  regards  the  signatures  of  the  other  two 
executants  Gopal  and  Janak  whose  signatu- 
res also  appear  on  the  mortgage  bonds  (Exs. 
4  to  4-C).  The  learned  Subordinate  Judge 
does  definitely  record  a  finding  that  Janak 
and  Gopal  or  for  the  matter  of  that  Rupan 
did  not  actually  sign  the  deed  in  question. 

He  then  refers  to  another  circumstance 
throwing  suspicion  upon  the  transaction 
which  ia  said  to  have  resulted  in  the  kabala 
in  question  and  that  is  that  Anwar  Khan, 
who  is  said  to  have  identified  the  e^ecutanta 


[92  I.  0. 1926] 

and  was  before  the  Registrar  both  when 
this  kabala  and  the  mortgage-deed  (Ex.  4) 
were  admitted  to  registration,  was  Bahadur 
Sahu's  gomashta. 

In  short,  the  learned  Subordinate  Judge 
has  thrown  out  certain  criticisms  as  re- 
gards the  evidence  adduced  by  the  plaintiff 
to  prove  the  execution  of  the  kabala  in 
question,  but  has  not  come  to  a  definite 
finding  that  the  kabala  was  not  executed 
by  Rupan,  Gopal  and  Janak.  That  this  is 
so  will  eminently  appear  from  the  finding 
of  the  learned  Subordinate  Judge  upon  the 
question  of  the  execution  of  the  kabala, 
He  concludes  his  judgment  upon  this  point 
in  the  following  words  :— 

"  In  fact,  the  circumstances  attending  the 
execution  of  the  kabala  are  extremely 
suspicious  and  the  evidence  regarding 
execution  offered  on  behalf  of  the  plaintiff 
should,  therefore,  be  received  with  caution/1 
True,  but  the  learned  Subordinate  Judge 
stops  here  and  does  not  give  us  his  definite 
finding  upon  the  point  after  examining  the 
evidence  in  the  case  in  the  light  of  the 
above  caution.  A  careful  analysis  of  the 
evidence  will  show  that  there  is  no  room 
for  any  suspicion  as  to  the  due  execution 
of  the  deed  in  question  by  Rupan,  Gopal 
and  Janak.  Two  of  the  executants  Rupan 
and  Gopal  are  dead.  Their  heirs  defend- 
ants Nos.  2  to  5  deny  the  execution  of  the 
kabala  by  them.  Ramtahal  Misra  defendant 
No.  2,  son  of  Gopai  Misra,  has  examined 
himself  to  prove  the  negative  and  denies 
the  signatures  upon  the  kabala  in  question 
as  being  of  his  father  and  Gopal  and  his 
uncle  Rupan.  But  is  he  competent  to 
prove  or  disprove  the  signatures  of  Gopal 
and  Rupan?  He  was  20  to  30  years  of  age 
on  the  8th  day  of  December  1920  when  he 
was  examined  as  a  witness  in  the  case. 
Therefore  in  1895  he  was  a  lad  of  nine 
years,  He  says  in  his  evidence  that  he  got 
discretion  about  IS  years  agof  that  is,  in 
the  year  1902.  He  nowhere  makes  himself 
competent  to  prove  or  disprove  the  signa- 
tures of  Gopal  and  Rupan.  In  order  to  prove 
the  handwriting  or  signature^  of  another 
person  one  must  show  that  he  is  acquainted 
with  the  handwriting  or  signature  of  that 
person.  Ramtahal  does  not  say  a  word  about 
it  in  his  evidence- in* chief.  In  cross- 
examination  he  give&  up  the  show  altoge- 
ther, where  he  says. — 

"  I  have  no  paper  written  by  my  father  or 
uncle.  I  have  no  recollection  of  their 


[92  I.  0.  1926] 

writing.  Their  writing  was  of  different 
style.  I  know  how  to  read  and  write  a 
little.'1 

Janak    Misra  defendant  No  1  has  also 
examined   himself  in  the  case.    He  is  59 
years  of  age  and  certainly  he  was  associated 
with  his  brothers  Rupan  and  Gopal  in  the 
management  of  his  family  affairs.      He  is 
supposed  to  be  one  of  the  executants  of 
the  bond.    If  there  was  anybody  who  was 
competent  to  speak  about  the  signatures 
of  Gopal  and  Rupan,  it  was  Janak  Misra. 
Ha,  however,  does  not  take  the  responsibili- 
ty of   denying  their  signatures  upon    the 
kabala  in    question.      There  is,   therefore, 
though  a  denial  in  the  written  statement 
filed  by  defendants  Nos.  2  to  5,  no  evidence 
in   the  case    disproving  or   denying    the 
signatures  of  Gopal  and  Rupan    upon  the 
kabala  in  question.    Therefore  the  denial 
in  the  written  statement  is  not  substantiat- 
ed and  Janak's  omission    in  the   written 
statement  to  expressly  deny  the  signatures 
is  a  proof  positive  that  the  signatures  on 
the  kabala  in  question,  which  purport  to  be 
of  Gopal  and  Rupan,  are  theirs.    Janak  has 
not  the  hardihood  of  expressly  denying  in 
his  written  statement  Ins    own    signature 
upon  the  kabala  in    question.     His  written 
statement,  if  carefully  scrutinized  is  a  tacit 
admission    of  the  execution  of  the  bond 
under  tjie   influence  of  Bahadur  Sahu  by 
means  of  inducements  for  the  future  benefit 
of  Janak.    No  doubt,  in  paras.  7  and  10  he 
denies  the  genuineness  and  the  correctness 
of  the  deed.    In  para.  16  he  says  that  the 
plaintiff's  husband  Bahadur  Sahu   and  his 
brother  Binda   Sahu    exercised    complete 
influence  and  control  over  him  (Janak)  and 
under  their    advice  and    instructions    he 
signed  on  plain  papers,   and  perhaps  the 
kabala     in    question     is     one     of    such 
papers.    In  para.  21  he  says  "so   far  as  the 
defendant  No.  1  recollects   it  is  this  that 
the  said  Bahadur  Sahu  once  proposed  to  him 
that  it  was  proper  for  him  to  execute  such 
a  bond  as  would  prevent  (him)  from  con- 
tracting debts  and  if   any   debt  came  to 
light,  the  same  could  be  used  against  it : 
that  there  would  be  no  change  in  his  posses- 
sion and  occupation  and  that  it  would  be 
within  his  power  to  get  the  same  set  aside 
if  he  had  any  objection.    If  the  bond   in 
suit  is  in  reality  that    very    (instrument) 
which  was  executed  under  the  advice  and 
instruction  of  the  said  Bhadur  and   Binda 
Shah,  the  defendant  No.  1  was  duped  to 
execute  it  under  fraud,  but  the  contents  of 


JASODA  KUBR  0,  JANAK  MISSIR. 


1037 


the  bond  in  suit  are  certainly  not  those  of 
the  bond  whose  execution  was  (once  con- 
templated).1' 

Therefore,  whereas  he  starts  with  the 
denial  as  to  the  execution  of  the  bond  he 
tacitly  admits  that  he  executed  the  instru- 
ment in  question  under  the  advice  and 
instruction  of  Bahadur  Sahu  and  Binda 
Sahu  for  the  purposes  mentioned  in  para. 
21  of  his  written  statement.  According  to 
him,  he  did  execute  such  an  instrument. 
No  other  instrument  has  been  filed  in  the 
case  or  shown  in  evidence  to  have  been 
executed  by  him  as  suggested  in  para.  21. 
Theiefore,  conclusively  the  kabala  in  ques- 
tion is  the  instrument  referred  to  in  para  21 
and,  therefore,  the  execution  of  the  kabala 
is  admitted,  though  it  is  said  to  have  been 
executed  under  fraud  and  circumstances 
that  effect  should  not  be  given  to  it.  This 
has  been  his  substantial  plea  as  disclosed 
in  his  evidence  He  says  in  his  evidence 
that  he  had  imposed  great  confidence  in 
Bahadur  Sahu  who  had  a  power  of-attorney 
in  his  favour  (Ex.  F),  dated  the  14th  Decem- 
ber 1680,  and  that  he  used  to  manage  his 
Keii  property,  which  is  the  subject-matter 
of  dispute  in  this  case.  Considering  all  the 
circumstances  the  learned  Subordinate 
Judge  stigmatizes  the  defence  of  Janak 
Misra  as  set  forth  in  his  written  statement 
as  being  vague. 

Now,  as  regards  his  signature  upon  the 
bond,  the  attitude  of  Janak  Misra  in  the  box 
has  been  to  deny  all  his  signatures  on  any 
paper  whatsoever.  He  went  so  far  as  to  deny 
his  verification  and  signature  on  his  written 
statement  filed  in  this  case.  Upon  this  the 
Court  remarked.  "The  man  appears  to 
be  a  fool.11  This  pulled  him  up  and  he 
immediately  admitted  his  signature  upon, 
the  verification  on  the  written  state- 
ment. The  Court  records  his  deposition 
thus— "  (Then  says)  I  signed  it  myself.11 
He  says  u  Bahadur  Sahu  was  my  karpardaz. 
He  might  have  had  the  kabala  fraudulently 
signed  by  me.  I  used  to  sign  blank  paper 
occasionally.  Exhibit  3- A  does  not  contain  our 
signatures/1  The  signature  of  Janak  Misra 
upon  the  verification  on  his  written  statement 
filed  in  this  case  which  is  now  his  admitted 
signature  and  that  upon  the  kabala  in 
question  are  manifestly  similar.  We  have 
carefully  compared  the  signatures  of  Rupant 
Gopal  and  Janak  on  the  kabala  in  question 
and  on  the  previous  documents  (Exs.  4  to 
4-E)  from  18*8  to  1891.  The  signatures,  not 


1038 


JASODA  KPBB  *,  JANAK  II I  SSI  R, 


only  appearing  as  executants  of  the  docu- 
ment in  question  but  also  those  made 
before  the  Sub-Registrar  in  all  those  docu- 
ments, appear  to  be  similar  ;  that  is,  Rupan's 
signatures  on  all  these  documents  are  similar, 
so  are  of  Gopal  and  Janak  Misra  respective- 
ly. They  have  got  peculiar  ways  of  writing, 
particularly  Janak.  His  letters  are  of  a 
peculiar  style  and  even  a  superficial 
look  at  them  would  not  fail  to  impress 
one  with  their  similarity,  These  signatures 
were  examined  by  the  learned  Vakil  Mr. 
P.  0.  Roy  on  behalf  of  the  respondents  and 
he  conceded  that  the  signatures  are  similar. 
The  learned  Subordinate  Judge  is  entirely 
wrong  when  he  says  that  the  signatures  of 
the  three  executants  were  written  by  the 
same  pen  and  hand.  The  signatures  of  the 
three  executants  Rupan,  Qopal  and  Janak 
are  in  different  style  altogether.  The 
learned  Subordinate  Judge  has  overlooked 
the  signatures  of  these  executants  before 
the  Registrar.  These  signatures  could  not 
be  by  one  and  the  same  person,  but  must 
have  been  by  three  different  persons.  The 
documents  bear  their  thumb-impressions. 
The  thumb'impregsions  are  not  of  one  and 
the  same  person.  They  are  evidently  of 
three  different  persons.  The  suspicion 
lurking  in  the  mind  of  the  learned  Subor- 
dinate Judge  was  that  one  and  the  same 
person  signed  the  documents  for  all  thethree 
brothers.  This  is  obviously  wrong.  There 
is  direct  evidence  in  the  case  of  a  number 
of  witnesses  on  behalf  of  the  plaintiff,  who 
swore  to  the  execution  of  the  kabala  by 
the  three  brothers.  The  learned  Subordi- 
nate Judge  brushes  them  aside  upon  the 
ground  that  they  are  servants  or  rela- 
tions of  Bahadur  Sahu,  husband  of  the 
plaintiff  but  it  is  common  knowledge  that 
a  vendee  always  wants  to  have  his  own 
men  as  witnesses  to  the  sale-deed.  All  the 
marginal  witnesses  of  the  kabala,  except 
Piru  Khan,  are  dead,  and  the  plaintiff  has 
examined  him,  No  reason  has  been  given 
by  the  Court  below  why  his  evidence 
should  not  be  accepted.  Upon  a  careful 
consideration  of  the  evidence  and  giving 
our  best  consideration  to  the  criticisms  of 
the  learned  Subordinate  Judge  we  have 
unhesitatingly  come  to  the  conclusion  that 
the  document  in  question  was  executed  by 
Rupan,  Gopal  and  Janak, 

The  learned  Subordinate  Judge  then  ad- 
dresses himself  as  to  the  consideration  for 
the  kabala.  The  consideration  for  the 
/cabala  is  Re.  8,900,  and  the  necessity  is 


[921.0.1926] 

recited  in  it  to  be  as  follows; — 

Rs.    a.  p. 

(1)  In  order  to  pay  Anwar 

Khan  decree  holder  of 
Ranchi  against  the  exe- 
cutants in  respect  of  a 
Civil  Court  decree, 
principal  and  interest  1,804  3  10 

(2)  The  amount  due  under 

a  mortgage-bond  dated 
the  2nd  February  1891, 
with  principal  and  in- 
terest executed  by 
Rupan,  Gopal  and 
Janak,  in  favour  of 
Birinda  Sahu,  which 
on  account  of  the  par- 
tition has  fallen  to  the 
share  of  the  purchaser's 
husband  Bahadur 
Sahu  ...  4,915  12  2 

(3)  The    amount    due    to 

Dasrath  Chowbey  from 

the  executants          ...        100    0    0 

(4)  The     amount    due    to 

DudhGojhuand      ...        280    0    0 

(5)  The  amount  to  be  paid 

in  cash  to  the  execu- 
tants .  ...  1,800  0  0 


Total  ...  8,100  0  0 
The  plaintiff  has  produced  the  earlier 
bonds  said  to  have  been  paid  off  out- of  the 
consideration  money  by  her.  She  has  also 
given  documentary  evidence  to  prove  the 
satisfaction  of  the  Civil  Court  decree  of 
Anwar  Khan  against  the  executants  through 
her.  Exhibit  4-C  is  a  mortgage  bond  exe- 
cuted by  Janak  Misra  in  favour  of  Dwarka 
Sahu.  The  endorsement  on  the  back  of  it 
shows  that  the  money  was  paid  and  the 
bond  was  -returned  to  the  plaintiff.  It  was 
also  torn  in  token  of  satisfaction.  This 
bond  recites  of  a  decree  obtained  by  Dwarka 
Sahu  in  1887  against  Janak  Misra  with 
respect  to  certain  zarpeshgi  lease  of  4-anuas 
of  Mouza  Keri.  In  order  to  satisfy  that 
decree  the  mortgage-bond  (Ex.  4-C)  was 
executed  by  Janak  Misra. 

Exhibit  4-D  is  a  mortgage-bond  mortgag- 
ing 8-annas  out  of  16-annas  of  Mouza  Keri 
executed  by  Janak  Misra  in  favour  of 
Girdhari  Ram  Pandey,  dated  the  8th  May 
1890.  This  also  bears  the  similar  endorse- 
ment of  payment  through  the  plaintiff  as 
"purchaser  of  Mouza  Keri," 

Exhibit  7  is  a  compromise  decree,  dated 
the  5th  January  1888,  obtained  by  Dwark* 


[92  L  0. 1926]  JASODA  tttmfc  v. 

Sahu  against  Janak    Misra  and  his  bro- 
thers. 

Exhibit  4  (B)  is  a  mortgage-bond  exe- 
cuted by  Rupan  Misra,  Gopal  Misra  and 
Janak  Misra  in  favour  of  Dukhan  Gojhu, 
dated  the  9th  January  1891.  This  also 
bears  the  endorsement  of  Rs.  200  having 
been  paid  by  the  plaintiff  as  purchaser  of 
Mouza  Keri. 

Exhibit  4  is  the  mortgage-bond  executed 
by  Rupan,  Gopal  and  Janak  in  favour  of 
Birinda  Sahu,  dated  the  2nd  January  1891. 
In  this  bond  the  entire  Mouza  Keri  asli 
and  dakhli  with  the  Tolas  known  as  Sarham 
Tola,  Masur  Tola,  Dudhmatia  Tola,  Kandra 
Tola,  Koota  Tola,  Salichanwa  Tola  and 
Barwa  Tola  lying  in  Mouza  Keri,  were 
mortgaged  to  Birinda  Sahu,  brother  of 
Bahadur  Sahu  husband  of  the  plaintiff. 
This  bond  by  partition  had  fallen  to  the 
share  of  Bahadur  Sahu,  and  was  satisfied 
put  of  the  consideration  money  of  the  kabala 
in  question.  The  bond  is  dated  the  2nd 
February  1891. 

Now  only  three  months  after  the  kabala 
on  the  16th  August  1895,  a  petition  (Ex. 
15-A)  was  filed  showing  satisfaction  of  the 
money  due  under  the  decree  held  by  Anwar 
Khan. 

These  payments  are  further  shown  in 
the  jamakharch  book  (Ex.  9-B)  filed  on  be- 
half of  the  plaintiff  for  the  years  1895-96. 
The  criticisms  of  the  learned  Subordinate 
Judge  as  regards  seaha  ^amakhdrch  (Ex. 
9-H)  seem  to  be  hypocritical.  The  learned 
Subordinate  Judge  has  lost  sight  of  the 
stubborn  fact  that  Rupan,  Gopal  and  Janak 
had  debts  outstanding  against  them  Jrom 
1887,  if  not  earlier,  and  the  connection  of 
Janak  Misra  with  Bahadur  Sahu  has  not 
been  traced  prior  to  1880  as  evidenced  by 
the  power-of- attorney  (Ex.  F).  That  power- 
of-attorney  only  empowered  Bahadur  Sahu, 
husband  of  the  plaintiff  as  an  agent  to 
register  jointly  or  singly  on  behalf  of  Janak 
Misra  deeds  before  the  Sub-Registrar  at 
Lohardagga  and  to  receive  them  back  after 
registration.  The  learned  Subordinate 
Judge  evolved  out  of  this  simple  power-of- 
attorney  a  complete  control  exercised  by 
Bahadur  Sahu  over  Janak  Misra.  But  what 
has  he  to  say  about  Rupan  and  Gopal  be- 
ween  whom  and  Bahadur  Sahu  no  sort  of 
connection  has  been  established,  even  of 
principal  and  agent  as  in  the  case  of  Janak? 
They  were  owners  of  2/3rds  of  Mouza  Keri 
and  they  joined  with  Janak  in  the  execu- 
tion of  the  kabala  ia  question,  A  single 


1039 

incident,  such  as  the  holding  of  power- of; 
attorney  from  Janak  Misra  to  register  his 
deeds  before  the  Sub  Registrar  of  Lohar- 
dagga, would  not  invalidate  or  cast  any 
suspicion  upon  transactions  of  such  a  grave 
nature  as  the  kabala  in  question,  the  neces- 
sity whereof  is  supported  by  the  undoubted 
testimony  of  prior  mortgage  bonds  and 
debts  which  the  family  had  to  satisfy.  The 
learned  Subordinate  Judge  has  launched 
into  imagination  in  order  to  throw  suspi- 
cion upon  the  kabala  in  question.  As  in 
the  case  of  execution,  so  in  the  case  of  the 
consideration  of  the  kabala  the  learned 
Subordinate  Judge  does  not  come  to  a  defi- 
nite finding.  Transactions  if  questioned 
after  a  number  of  years  may  give  rise  to 
various  criticisms,  such  as  those  the  learned 
Subordinate  Judge  has  levelled  against  the 
kabala  in  question.  No  evidence  has  been 
given— oral  or  documentary— to  show  that 
Bahadur  Sahu  played  fowl  with  Janak 
Misra  or  with  Rupan  and  Gopal.  Why 
should  we  not  then  accept  that  there  existed 
cordial  relationship  between  Janak  Misra 
and  Bahadur  Sahu,  and  that  Bahadur  Sahu 
was  always  willing  to  render  service  to  the 
family  so  much  so  that  his  brother  Birinda 
Sahu  advanced  large  sums  of  money  in 
1888  in  order  to  pay  off  the  debts  of  the 
family  and  to  save  them  $  from  pecuniary 
stringencies.  We  have  it  in  evidence,  not- 
ably Exs.  4  to  4  (D)  and  the  Court  pro- 
ceedings in  connection  with  the  execution 
of  decrees,  that  the  family  had  reached  a 
financial  crisis  and  either  the  family  was  to 
bo  ruined  on  account  of  the  decrees  and  exe- 
cution proceedings  then  pending  against  it 
or  it  had  to  be  saved.  Who  came  to  the 
rescue  at  such  a  critical  moment?  The 
learned  Subordinate  Judge  has  not  address- 
ed himself  to  this  point.  It  was  Bahadur 
Sahu  who  managed  to  advance  money  either 
himself  or  through  his  wife,  either  his  own 
money  or  that  of  his  wife,  which  point  will 
be  considered  later  on  and  he  did  take  an 
active  part  in  saving  the  family  from  ruin. 
He  advanced  money,  paid  off  all  the  debts 
for  we  do  not  hear  of  any  debt  now  out- 
standing against  the  family.  His  connec- 
tion throughout  seems  to  be  fair.  If  lie 
was  an  agent  he  was  a  faithful  agent.  It 
is  needless  to  puisue  this  question  further 
and  to  reply  seriatim  the  imaginative  ar- 
guments of  the  learned  Subordinate  Judge. 
Suffice  it  to  say  that  our  careful  examina- 
tion of  tbe  evidence,  the  facts  and  cir- 
cumstances iu  the  case  have  led  to  the 


1010 


JASODA  KUER  t>,  JANAK 


conclusion  that  the  bond  was  executed  for 
consideration  and  that  the  entire  consider- 
ation money  was  paid  off,  Rs.  1,800  was  paid 
in  cash  at  the  time  of  registration  as  is 
noted  on  the  document  itself.  The  docu- 
ment cannot  be  impugned  as  being  without 
consideration.  It  was  duly  executed  by 
R 11  pan,  Gopal  and  Janak  for  good  consider- 
ation. Therefore,  the  document  created  a 
valid  title  in  favour  of  the  vendee  with 
respect  to  the  property  purported  to  have 
been  conveyed  by  it. 

Now,  did  possession  follow  title  in  the 
present  case?  The  document  was  executed 
in  1895,  and  the  evidence  of  possession  from 
1895  up  to  1909  or  1910  appears  to  be  one- 
sided. The  defendants  do  not  seem  to 
have  any  possession  over  the  property 
after  the  execution  of  the  sale-deed  in  ques- 
tion until  they  succeeded  in  dispossessing 
the  plaintiff.  If  neither  title  nor  posses- 
sion passed,  we  would  expect  evidence  of 
actual  possession  by  the  vendors  and  their 
family  over  the  property  in  question  not 
after  1909  or  1910  or  after  the  survey  in 
1916  but  right  through  from  1895  uninter- 
rupted up  to  the  present  moment.  This 
break  in  the  possession  of  the  vendors  just 
after  the  execution  of  the  kabala  in  1895 
for  a  considerable  number  of  years  sup- 
ports the  plaintiff's  case  of  the  possession 
having  passed  to  her  in  pursuance  of  the 
kabala  in  question.  Add  to  it  the  posi- 
tive evidence  of  possession,  documentary 
and  oral,  given  on  behalf  of  the  plaintiff 
from  1895  up  to  her  dispossession.  Exhibit 
9  series  are  jamakharch  book  and  seaha 
bahis  which  show  income  from  the  village 
in  question  and  expenditure.  These  are 
from  1895  to  1909-18 10.  There  are  kabuliyats 
(Bxs.  12  and  12-A)  executed  by  some  tenants 
in  favour  of  the  plaintiff  in  1895-1896. 
Then  we  come  to  the  Court  proceedings. 
The  plaintiff  Jasoda  Kuer  had  been  realiz- 
ing rents  through  Courts ;  vide  plaints 
21,  fcl-A,  judgment  Ex  18  and  decree  Ex. 
19-B.  Now,  Janak  Misra  himself  admitted 
the  possession  of  the  plaintiff  Jasoda  Kuer 
in  the  plaint  (Ex.  21),  dated  the  1st  No- 
vember 1900,  wherein  he  claimed  to  re- 
cover the  cess  paid  by  him  to  the  superior 
landlord.  The  plaint  recites  that  the  vend- 
ors had  khairat  or  kushbrit  lakhiraj 
interest  in  the  village  granted  Bunder  a 
«anftci  by  the  ancestor  of  the  Todi  Raj  Sri 
Mahataj  Udai  Nath  Sahi  Deo  through  their 
ancestors.  The  village  was  a  sort  of  jagir 
91  maintenance  grant  granted  to  the  junior 


[9210.1926] 

member  of  the  family  of  the  Maharaja. 
The  khairat  lakhirajdar  had  to  pay  cesses 
to  the  landlord,  Janak  Misra  and  the  other 
defendants  sons  of  Gopal  and  Rupan, 
claimed  these  cesses  which  were  paid  by 
them  to  the  superior  landlord  from  Musam- 
mat  Jasoda  Kuer  the  plaintiff,  upon  the 
ground  stated  in  para.  1  of  the  plaint  that 
under  the  registered  sale-deed,  dated  the 
22nd  May  1895,  executed  by  Rupan,  Gopal 
and 'Janak  the  khairat  lakhiraj  interest 
in  tho  village  was  transferred  to  Musam- 
mat  Jasoda-  Kuer.  Exhibit  22  is  the  order- 
sheet  in  that  case.  In  September  of  1901 
Janak  Misra  filed  a  petition  before  the 
Manager,  Encumbered  Estate,  Palamau,  in 
answer  to  a  notice  issued  upon  him  and 
his  uncles  Rupan  and  Gopal,  to  pay  cesses. 
In  that  petition  (Ex.  2-F;  he  admitted  that 
the  village  was  sold  by  him  and  his  bro- 
thers to  the  plaintiff  by  the  sale-deed, 
dated  the  22nd  May  1895.  On  the  7th  No- 
vember 1901  he  put  in  a  petition  before  the 
Manager  that  no  rent  is  payable,  the  village 
being  lakhiraj,  but  only  cesses  were  pay- 
able (Ex.  1).  The  order  of  the  Mana- 
ger (Ex.  1-1),  dated  the  2nd  February  1902 
upheld  the  contention  of  Bahadur  Sahu 
that  the  village  was  lakhiraj  and  that  cesses 
only  were  paid  and  that  Janak  Misra  had 
paid  up  to  195G,  that  is  before  the  kabala 
and  since  then  Bahadur  Sahu  had  paid. 
That  cess  -is  payable  to  the  superior  land- 
lord is  also  stated  in  the  kabala  (Ex.  3  A). 
It  is  said  that  Rs.  12-2-8  is  payable  to 
Kumar  Saheb,  the  proprietor  of  pargana 
Todi.  It  appears  that  after  the  sale  the 
payment  of  the  cess  was  made  on  behalf 
of  the  plaintiff.  Exhibit  5,  order  of  the 
Manager,  dated  the  3rd  May  1904,  referred 
to  Ajodhya  Misra,  the  ancestor  of  Rupan, 
Gopal  and  Janak,  being  the  original  khai- 
ratdar,  who  transferred  the  plaintiff  Mu- 
sammat  Jasoda  Kuer,  wife  of  Bahadur 
Sihu,  the  property  by  sale- deed,  dated  the 
22nd  May  1895,  and  the  Musammat  was 
ordered  to  be  recorded  under  s.  31  (2)  of 
Act  VI  of  1879  as  being  in  possession  of 
the  property.  The  order  further  reserved 
the  right  of  the  zemindar  to  resumption  as 
enjoined  by  sub-s.  (6)  (II)  of  the  Act. 

Exhibit  6  series,  receipts  for  cess  grant- 
ed by  the  Manager,  show  the  rents  paid 
by  Bahadur  Sahu  and  the  names  of  Janak 
Misra  and  Musammat  Jasoda  Kuer  as  ten* 
ants.  Janak  Misra's  name  was  retained  as 
he  was  the  original  khairatdar  and  M uaam,* 
mat  Jasoda.  Kuer'snacne  wag  added  as  she 


J.  U,  imj  JASQDA  KCER  V, 

purchaser;  These  receipts  are  from  > 
1962  to  1965  (1906  to  1909).  The  counterfoil 
receipts  (Exs.  8  to  8  H)  from  1905  to  1909 
shqw  the  name  of  Musammat  Jasoda  Kuer, 
wife  of  Bahadur  Sahu,  as  ilaqadar  or  zcmm-  • 
dart  of  the  mouza  and  that  rent  was  f£- 
ceivecl  from  the  tenants.  Exhibits  8  H,  8-D, 
8-E  and  8-F  counterfoil  rent  receipts  have 
been  signed  by  Janak  Misra  as  a  tenant.  These 
documents  clearly  show  that  Musammat 
Jasoda  Kuer  was  recognized  as  purchaser 
of  tne  mouza  and  had  been  in  possession 
of  it  from  1895  to  1909  or  19lO,  and  that 
Janak  Misra  recognized  her  possession,  took' 
part  in  having  her  name  mutated  in  the 
superior  landlord's  serishta  and  also  signed 
som/e  of  the  counterfoils. 

Bahadur  Sahu,  husband  of  the  plaintiff, 
died  in  1909,  and  then  the  trouble  seems  to 
have  arisen  in  the  possession  of  the  lady. 
Janak  Misra  seems  now  to  have  disturbed 
the  possession  of  the  Musammat.  The  first 
move  was  to  dissuade  the  tenants  from  pay- 
ing l(>aiinas  rent  to  the  lady  and  when  the 
lady  .refused,  the  tenants  applied  in  the 
Court  of  the  Deputy  Commissioner  of 
Palaraau  to  deposit  8-annas  share  of  rent 
thereby  implying  that  she  was  entitled  only 
to  8  a,imas  of  the  properly  vide  Ex  2-A. 

In  1910  there  was  a  proceeding  under 
8  107  of  the  Cr.  P.  C.  The  first  party  were 
the^ervants  of  one  T}lr.  Pickard  who  held 
a  lease  of  village  Keri  and  the  second  party 
were  the  servants  of  Musammat  Jasoda 
Kuer  plaintiff  who  purchased  the  village 
under  the  kabala  executed  in  the  year  1895. 
In  1912  Musammut  Jasoda  Kuer  brought  a 
suit  against  Janak  Misra  for  realization  of 
renta  as  Janak  was  also  a  tenant  of  the 
village  He  pleaded  that  he  was  a  tenant 
of  Ramtahal  who  was  8-annas  proprietor  of 
Uouza  Keri  and  that  he  never  paid  rent  to 
th©  plaintiff. 

Soon  after  this,  settlement  operations  be- 
gan* and  the  whole  dispute  has  been  detailed 
in  Ex.  Hi  report  *>f  the  Assistant  Settlement 
Officer,  dated  the  I2bh  February  1915.  Be- 
fore'him  were  filed  most  of  the  documents 
filed  in  this  ease  to  prove  the  title  and  pos- 
session of  the  Musammat  ever  since  she  pur*- 
'ch9$ed  the  property  up  to  date,  The  Assist- 
ant Settlement  Officer  m  the  dispute  list  (Ex, 
17X>  dated  the  llth  April  1915,  says  th&fefrom 
th$  documents  filed  before  Uim,  namely,  'the 
oqilecjtipn,  papers,  it  was  clearly  proved  that 
th6j  kofyala  of  22nd  May  1895  was  not  a  6e- 
ncuni  transaction  as  alleged  by  Janak  Misia 
andotnersj  but  that  it  was  a  bonafide  sale 

ee 


JANlK  'MlSSfri.  1041 

and  that  'possession  passed  to  Musammat 
Jasoda  Kuer  by  viitue  of  that  kabala,  and 
that  she  remained  in  undisturbed  ,  posses* 
sion  of  the  village  and  was  in  receipt  of 
rent  from  tHe  raiyats  and  that  the  dispute 
about  possession  arose  in  1966  Sam&af  (1909) 
"In  that  year'1,  continues  the  Assistant, 
Settlement  Officer,  rent  wag  collected  khas 
from  certain  raiyats  by  the  Musammat  and 
nine  of  the  raiyats  deposited  very  small 
portions  of  their  rents  in  the  treasury  in 
favour  of  the  Musammat.  In  1967  (1910) 
the  Musammat  was  unable  to  make  any  khqs 
collection  in  the  village.  Twelve  of  the 
raiyats  deposited  very  small  portions  erf 
their  rents  in  the  treasury  in  favour  of  the 
Musammat  and  the  rest  of  the  raiy&ts 
presumably  paid  their  rents  to  ,the 
Misias.  In  1968  (1911)  also  the  Musammat 
was  unable  to  make  any  khas  collectipn, 
Two  of  the  raiyats  deposited  very  small  por,- 
tions  of  their  rents  in  Jilie  treasury  in  her 
favour.  In  1969  (19i2)  an4  subsequent 
years  there  was  neither  any  khas  collection 
by  the  Musammat  nor  any  deposit  of  rent  iu 
her  favour." 

Thus,  the  learned    Assistant    Settlement 
Officer  came  to  the  conclusion  that  the  Mu+ 
$ammat  was  practically  dispossessed  by  the 
Misras  in  1910,  although  the  dispossession 
was  illegal,  inasmuch  as  the  Musammat  WQS 
the   rightful  owner  or  proprietress  of  thq 
village  by  virtue  of  the  kabala  of  22nd  Jday 
1895.    Upon  this  finding  the  present   entyy 
in  the  settlement  Record  of  Rights  was  made, 
that  is,  the  Musammat  was   held  to  be  the 
rightful  owner  of  the  village  in  question 
and  the  Misras,  the  defendants,  as  trespassers 
and  in  wrongful  possession  for  five  or  six  years 
after  1910.     What  was  before  the  Assistant 
Settlement  Officer  is  before  us,  ajid  the  As- 
'sistant  Settlement    Officer  seems  to  hav$ 
fully  appreciated  the    situation.    The  evi- 
dence before  us  had  confirmed  us  inourcoij- 
viction  that  the  Musammat  is  the,  rightful 
owner  of  the^ property  in  dispute  and  ,ha» 
been  in  possession  up  t'o  19lO  when  djst^rb-, 
ance  began1  on  behalf  of  the  Misras,  .the 
'defendants,    and"  she  was  completely:  dis- 
possessed about  that  time.  Janal^Misntu  ha^ 
not  produced  any  collection  papers  D$£O^& 
th0  Assistant  Settlement  pfficer,  nor  haa  4w 
been  abte  to  produce  any  befqre 

19 10. 

The  conclusion  to  which  w 
at  in  disagreement  with  the  view  of  the 
Subordinate  Judge  is  'that  the  ^kabala  in 
question  is  a  genuine  document  and  was 


1042 


JASODA  K0EB  V,  JAKAK  illSSIR. 


JL  u. 


duly  executed  by  Rupan,  Gopal  and  Janak, 
It  waa  given  effect  to  and  the  title  passed  to 
the  plaintiff  and  that  she  obtained  posses- 
sion thereunder  in  1895  just  after  the  deed 
was  executed  and  slie  continued  to  be  in 
possession  until  she  was  dispossessed  as 
stated  above.  The  suit  was  instituted  on 
the  16th  May  1919  well  within  time  for  re- 
covery of  possession.  This  disposes  of  Issue 
No.  3,  which  relates  to  limitation. 

Incidentally  I  may  say  a  few  words  as  re- 
gards [ssue  No.  13.   This  issue  does  not 
seem  to  have  been  drawn  up  artistically. 
The  plaintiff's  husband  held  a  power-  of-at- 
torney  from  Janak  Misra  (Ex.  F),  dated  the 
14th  December  1880,  and,  as  already  observ- 
ed, this  power-  of-attorney  was  with  a  view 
to  save  the  trouble  of  the  principal  going  to 
the  Registration  Office  for  registering  her 
document.    The  evidence  is  not  convincing 
as  to  Bahadur  Sahubeinga  general  mukh- 
tear  am  having  a  general  power-of-attorney 
for  all  kinds  of  business  to  be  transacted  on 
behalf  of  the  defendants.   He  had  no  special 
power-of-attorney  of  any  sort  from  defend- 
ants Nos.  2  to  4  or  their  ancestors  Rupan 
and  Gopal.    No  evidence  has  been  given  in 
this  case  of  any  breach  of  faith  having  been 
committed  by  Bahadur  Sahu  with  respect 
to  the  kabala  in  question.  If  Bahadur  Sahu 
was  a  shrewd  man,  as  the  Subordinate  Judge 
calls  him,  Janak  Misra  appears  to  be  equal- 
ly shrewd  for  just  after  the  death  of  Baha- 
dur Sahu  he  began  to  manipulate  all  kinds 
of  measures,  proper  or  improper,  in  order 
to  disturb  the  possession  of  the  lady.    Pie 
set  up  some  of  the  tenants  to  say  that  the 
plaintiff  had  only  8  annas  share  in  the  vill- 
4tge  and  that  the  remaining  8-annas  was  held 
by  Ramtahal  Misra.   He  himself  in  the  suit 
brought  for  rent  by  the  Musammat  said  that 
he  was  holding  under  Ramtahal  Misra,  pro- 
prietor of  8-  annas  share.  He  did  not  deny  in 
that  case  that  the  Musammat  had  no  title  to 
the  village  under  the  kabala  in  question.  He 
took  advantage  of  the  plaintiff  being  a  par- 
dahnashin  woman  and  wholly  dispossessed 
her  by  the  time  the  Assistant  Settlement 
Officer  dealt  with  the  village  in  1915,  and 
he  succeeded  in  maintaining  his,  what  the 
Assistant  Settlement  Officer  calls,  illegal 
possession  asa  trespasser  in  the  village  and 
had  his  name  recorded  as  such.  If  we  are 
right  in  our  view  that  he  solemnly  executed 
the  deed  of  sale  and  received  consideration 
and  gave  possession  of  it  to  the  vendee,  he 
was  re-paying  the  faithful  eeivkes  cf  Baha- 
dur £*hu,  ty#*pipx>]*Upff  deceitful  Kcatu- 


res  against  her.  No  case  of  fraud  and  undue 
influence  has  been  made  out  and  no  factd 
and  circumstances  sufficient  to  raise  such  a 
plea  been  definitely  averred  in  the  written 
statement  or  proved.  The  last  portion  of 
this  issue  "Is  it  binding  on  the  defendants11 
has  already  been  answered.  The  defendant 
No.  1  and  the  predecessor-in-interest  of  de- 
fendants, Nos.  2  to  5  executed  the  sale-deed 
in  question  and  the  kabala  is,  therefore, 


binding  upon  the  defendants. 

The  next  question  would  then  naturally 
arise  as  is  set  forth  in  Issue  No.  6 — "Is  the 
plaintiff  entitled   to  get  possession  of  the 
disputed  property?"    The  answer  to    this 
would  have  been  a  very  simple  one  after 
what  has  been  said  above  had  it  not  been 
for  Issue  No.  12  "Whether  the  kabala  which 
has  been  set  up  by  the  plaintiff  is  illegal? 
Does  it  affect  the  property  conveyed  there- 
by?"   Therefore  before  Issue  No.  6  is  an- 
swered, Issue  No.  12  must  be  disposed  of. 
Under  this  issue  the  learned    Subordinate 
Judge  has  decided  that  the  Sub-Registrar 
of  Ranchi,  who  registered  the  document, 
acted  without  jurisdiction,  inasmuch  as  the 
vendors  Rupan,  Gopal  and  Janak  had  DO 
property  within   the   jurisdiction  of    the 
Ranchi,  Sub-Registry.    Now,  the  properties 
conveyed  by  the  sale-deed  are  the  properties 
in  dispute  Mouza  Keri  and   its  Tolas  (de- 
pendent hamlets   and  a  portion  of  a  hoftse 
situate  in  Ranchi.    Mouza  Keri   appertains 
to  Palamau  District  and  is  outside  the  Ranchi 
District.    According  to  the  finding  of  the 
Subordinate  Judge  village  Keri  is  85  miles 
from  Daltonganj  and  40  miles  from  Ranchi, 
The  executants  of  the   bonds  are  residents 
of  Mouza   Keri.    The   vendee    Musammat 
Jasoda  Kuer  and  her  husband    Bahadur 
Sahu  were  residents  of  Mouza  Harhanj  in 
the  District  of  Palamu,  about  48  miles  off. 
The  house  in  question  stood  in  the  name  of 
Liladhar  Misra,  am-mukhtear  of   Bahadur 
Sahu,  and  Ganpat   Sahu  brother  in-law  of 
Bahadur  Sahu.    The  house  originally  be- 
longed to  a  Kumhar,  who  conveyed  the  same 
to  Liladhar  and  Ganpat  on  the  25th  of  June 
1883.    Deocharan,  brother  of  Liladhar,  exe- 
cuted a  kabala  (Ex.  3)  claiming  half  the 
share  jointly  with  Liladhar  in  the   house  in 
question  on  the  22nd  May  1895,  wherein  he 
claimed  that  he  alongwith  his  brother  Lila- 
dhar had  half  share  in  the  house  which  was 
purchased  in  the    name  of  Liladhar  end 
Ganpat,  and  he  sold  one  of  the  rooms  of  that 
houee  xcofed  with   tiles  caid  to  be  in  bis 
j cim eita  for  a  euzn  cf  F*.  10  to  Jesek  Mif  rt 


L  0. 


JA66DA  KTJER  V.  JANAtC  HISSlfe. 


1043 


one  of  the  executants  of  the  sale-  deed  in 
question  (Ex.  3  A).  The  two  sale-deeds  (Exs. 
3  and  3-  A)  were  presented  W  the  Sub-Regis- 
trar of  Ranchifor  registration  almost  simul- 
taneously between  2  and  3  p.  M.    and  they 
were  registered.    The  sale-deed  (Ex.  3)  relat- 
ing to  the  house  bears  No.  2,630  for  1895 
entered  in  Book  I,  Vol.  19,  at  pages  87-88.  The 
sale-deed  (Ex.  3-A)  relating  to  Mouza  Keri 
in  dispute  bears  No.  2632  for  1895  entered 
in  Book  I,  Vol.  13,  at  pages  275-279.  Janak 
Misra  in  whose  favour  a  portion  of  the  house 
in  Ranchi  was  sold  by  Ex.  3  did  not  intend 
to  keep  the  house  to  himself,  for  immediate- 
ly he  conveyed  the  same  by  means  of  the  sale- 
deed  (Ex.  3-A)  to  Musammat  Jasoda  Kuer. 
Therefore  the  sale-deed  (Ex.  3)  was    execut- 
ed with  a  view  to  give  him  title  to  the  house 
situate  in  Ranchi  in  order  that  the  sale-deed 
(Ex.  3-A)   with  respect  to  Mouza  Keri  be 
presented  for  registration  and  rpgistered  in 
Ranchi.    Neither  of  the  parties  lived  either 
at  Ranchi  or  at  Daitonganj,  and  the  distance 
from  their  respective  residences  to  Dalton- 
ganj was    almost   double.    Obviously  they 
thought  it  convenient  to  have  the  document 
registered  at  Ranchi  instead   of  at  Dalton- 
ganj, as  45  miles  in  that  part  of  the  country 
is  an   inconvenient  distance  to  tfavel  for 
ordinary  people  not  having   good    convey- 
ance at  their  disposal,  the  country  being  co- 
vered by    hills  and  jungle.    This  in  itself 
is  not  a    dishonest  motive  and   might   in 
the  circumstances  be  a    good  motive    to 
avoid  going  to  Daitonganj.    In  the  present 
case  nothing  has  been  shown  why  the  par- 
ties would  avoid  having  the  document  re- 
gistered   at  Daitonganj,    except     the  one 
ground  referred  to  above.  No  circumstance 
has  been  shown  to  indicate  that  the  parties 
wanted  to  avoid  the  publicity  of  the  regis- 
tration of  the    sale-deed   (Ex.  3-A)  in  the 
Daltongani  District.    There  is  nothing  to 
show  that  they  wanted  to  defeat  or  defraud 
any  creditor  or  that  they    had  any   other 
sinister    motive.    Therefore  the  fact  that 
Janak  got  the  sale-deed  executed    in   his 
favour  by  Deocharan  with  respect  to  the 
house  in  Ranchi  would  not  in  itself  affect 
the  registration  of  the  document  provided  it 
was  a  bona  fide  deed  with  a  view  to  carry  out 
the  intentions  of  the  parties  in  executing 
and  registering  the  sale-deed  (Ex.  3-A)  in 
Ranchi  with  respect  to  Mouza  Keri.    It  is 
said  that  Deocharan  had  no  interest  in  the 
house  and    that  the   house   belonged   to 
Bahadur  Sahu  and  that  he  was  the  real 
purchaser  under  a  wie-deed,  dated  the  25th 


June  1883  from  a  Kumhar  in  the  /am  name 
of  his  am-mukhtear  Liladhar  Misra  and  his 
brother-in-law  Ganpat  Sahu.    In  support 
of  this  reference  is  made  to  Ex.-A,  sale-deed 
executed  by   Bahadur  Sahu  in  favour  of 
Akhouri  Sundar  Behari4Lal,  dated  the  19th 
March  1902,  several  years  after  the  kabala 
in    question  (Ex.  3-A).    In  that  sale-deed 
Bahadur   Sahu  recites  that  he  had  pur- 
chased the  house  in  question  under  a  re- 
gistered sale-deed,  dated    the  25th  June 
1883,  with  his  own  funds  farzi  in  the  name 
of  his  mukhtear-am   Liladhar  Misra   and 
his  brother-in  law  Ganpat  Sahu,  and  that 
he  disposed  of  it  to  Akhouri  Sundar  Behari 
Lai  for  Rs.  125.    Deocharan  Misra,  brother 
of  Liladhar  Misra,  on  the  other  hand,  in 
the  sale-deed  (Ex.  3)  stated  that    he  was  a 
co-sharer  with  Liladhar  in    the  house  in 
question  and  that  he  owned  and  possessed 
one  of  the  rooms  of  that  house  and  that  he 
sold  that  off  to  Janak  Misra  per  sale-deed 
(Ex.  3)  on  the  22nd    May   1895.    Bahadur 
Sahu  took  part  in  the  execution  of  the  sale- 
deed  (Ex.  3-A)  in  favour  of  hia  wife,  the 
plaintiff  in  the  case.    The  deed  confirmed 
the  sale  of  the  house  by  Deocharan  to  Janak 
by  Ex.  3.  Bahadur  Sahu,  therefore,  allowed 
the    property    to    be  sold    by  Deocharan 
Misra  in  favour  of  Janak  Misra.    The  sale- 
deed  of  the  25th  June  1883  in   favour  of 
Liladhar  Misra  and  Gopal  Sahu  on  the  fac6 
of  it  shows  that  Liladhar  Misra  had  interest, 
and     Deocharan    is  brother  of    Liladhar* 
Therefore  upon  the  document  as  it  stands 
it  cannot  be  said  that  Liladhar  or  Deocharan 
had  no  title  to  the  house  in  question.    Ac- 
cording to  the  tenor  of  the  document  and 
the    relationship    that     existed     between 
Deocharan  and  Liladhar,  the  former  would 
appear  to  have  title  to    the  house  in  ques- 
tion which  he  purported  to  convey  by  the 
sale  deed  (Ex.  3)  to  Janak.    In  a   proceed- 
ing for  registration  of  a  document  title  to 
property  cannot  be  gone  into.    There  was 
a  property,  namely,  the  house  situate  within 
the  Ranchi  District  and  the  Sub-Registrar 
of  Ranchi  had  jurisdiction  to   register  the 
document  relating  to  the  house  in  question. 
Deocharan  Misra  purported  by  kabala  (Ex. 
3)  to  sell  a  portion  of  that  house   to  Janak 
Misra,  and  Janak  Misra,  therefore,  under 
that  sale-deed  acquired  an  ostensible  title 
which  he  forthwith  conveyed  by  Ex.  3-A  to 
the     plaintiff.    Section    28    of  the  Indian 
Registration  Act  does  not  require  anything 
more  than  the  existence  of  a  property  -with- 
in the   juried  let  ion  of  a  particular 


Registrar  in  order  to  entitle  him  to"  regis- 
ter* the  eamfc:'  'Ram  Dai^v.   Ramf  Chan- 
drawli    J)ebi  •(!).    The   cases    cited    are 
distinguishable,    Jn-    the    case  *of    Har-t 
endra    Lai    Hoy    v.  Hari  Dasi    Debi    (2) 
the  property  mentioned  in   the  mortgage 
bond  in  question  was  a  -fictitious  property. 
It  had  no  existence  in  Calcutta,  and,  there- 
fore,  under  s.  28  the    registration  of  the 
document   was    invalid.    In    the    case  of 
Matkura  Prawd  v.  Chandra  Narain  Chow- 
dhury-(3)   the  sale-deed  with  respect  to  2 
bighas,  1  katha  in  Kalhua  in  the  District 
of  Muzaffarpur,  which   purported  to  give 
title  to  a  party  to  a  mortgage  in  order  to 
entitle  the.registration  thereof  in    the  Dis- 
trict of  Muzaffarpur  was  not  produced  nor 
was  it  shown  that  there  was  delivery  of  pos- 
session by  virtue  of  the  sale-deed.    In  that 
case  it  was  fouud  that  to  the  knowledge  of 
both  parties  the  mortgagor  had  no  title  to 
that  property  and  that   he  never  intended 
to  part  with  thg-t  property.  Ill  those  circum- 
stances the  registration  of  the   document 
in  ths  District  of  Muzaffarpur  was  held  to  be 
inoperative  having  been  registered  outside 
the  Registration  Law.    The  circumstances 
of  thifif  case  aa:e  quite  different  from  any  of 
those  cases.    The  first  case  obviously  does 
not  apply,  inasmuch  as  the  house  in   the 
District  of  Ranchiis  not  a  fictitious  proper- 
ty.   The  secon,d  case  does  not  apply,  inas- 
much as  on  the  face  of  the  previous  sale- 
deed  of  the  25th  June  1S83,  Liladhar  Misra 
brother  of  Deocharan  Misra  had  title  to  the 
property,  and  Bahadur  Sahu  who  took  part 
in  the  execution    of    both   the  sale-deeds 
(Exs.-S  and  3- A)  led  Janak  Misra  to  believe 
that  Peocharan  had  title  to  the  house  and 
did  not  disclose  his  own  title  if  any,    There- 
fore, these  decisions  of  their  Lordships  of 
the  Judicial  Committee  do  not    apply    to 
the  present  ease.    The  vendees  themselves 
took  part  in  the  transaction  regarding  the 
registration  of  the  docuniente  (Exs.    3  and 
3-A)  and  cannot  be  permitted  to  take  this 
plea. 

We,  therefore,  hold  in  disagreement  with 
the  yiew  taken  by  the  learned  Subordinate 
Judge  that  the  document  in  question  is  not 


52  IncL  Cas.  446,  4  Pat  L.  J.  433, 

2.1  Ind:  Cas.  fc37,  41  0.972;  411  A  110,  27  M, 
L  V.  80;  (1914)  3VT.  W.  N.  462;  16  M.  L  T.  6;  18  C.  W. 
».  817;  19  Q.  1*  J.  484;  16  JJom.  L.  K.  400,  12  A,  L/.  J, 
774;  1  L.  W.  1050  (P.  0,). 

(3)  CO  Ind.  Cas.  833;  25  6.  W.  N  985,  40  M,  L.  J. 
189;  19  A,  L.  J.  385;  33  0.  L,  J.  440;  23  Bom.  L  R,  62.9; 
1921)  M.  W,  N.  370;  U  L.  W;  1;  29  M,  L,  T.  413;  2  P, 
U  T,  807  (P,  0,}, 


JASOJDA  KCEft  t>.  JANAK  34ISSIR,  [92  I.  0.  1926J 

illegal  on  Account  of  its  having^  #eenj  re- 
gistered by  the  Sub*Registrar  of  R&nchi. 
The  lesue  $o.  .12  having  been  thus  answer- 
ed, the  answer  to  Issue  No.  6  is  obvious; 
and  that  answer  is  in  the  affirmative. 

The  plaintiff  is  entitled  to  get  possession 
of  the  disputed  property.    The  plaintiffs 
title  is  fortified  in  this  ease   by   the   fact 
that  she    had  been    in    possession  of  the 
property  for  over  12    years  from  1895  to 
1909.    Her  possession  was  to  the  knowledge 
of  Janak  Misra  who  had  taken  part  in  the 
exercise  of  right  of  possession  by  the  plaint- 
iff, some  of  the  counterfoils  having  been 
signed  by  himself.  She,  therefore,  acquired 
an  absolute  title  to  the  property  by  adverse 
possession  for  over    12  years,  having  exer- 
cised it  openly  and  adversely  to  the  know- 
ledge of  the  defendants.    Therefore,  even  if 
the  registration  of  the  document  was  illegal, 
the  title  acquired  by  her  by  adverse-  pos- 
session remains  intact,  and  the  defendants 
have    no  right  to  dispossess    her    in  the 
manner  in  which  they  did  in  the  year   1910 
or  thereafter. 

The  obvious  result  of  these  findings  is 
that  the  plaintiff  is  entitled  to  succeed  in 
the  suit,  and  the  suit  must  be  decreed. 

The  next  question  is  the  extent  of-  the 
decree  to  be  given  in  favour  of  the  plaintiff . 
Her  case  in  short  is  that  she  is  entitled  to 
get  possession  of  all  the  properties  in 
Mouza  Keri  with  Tola  Bha^iya  and  the 
other  Tolas  appertaining  thereto  and  that 
the  survey  entry  recording  some  of  the 
Tolas  as  appertaining  to  Bhagiya  as  distinct 
from  Mouza  Keri  is  wrong.  This  issue haflh 
not  much  concern  with  defendants  Nos.  2 
to  5,  but  only  defendant  No.  6.  Defendant 
No.  6,  as  alieady  observed  in  the  earlier 
part  of  the  judgment,  has  not  taken  keen 
interest  in  the  litigation  and  did  not  con- 
test the  plaintiff's  claim  either  here  or  in 
the  Court  below  though  he  filed  a  written 
statement,  and  in  this  appeal  he  has  not 
entered  appearance.  It  appears  that  the 
sale- deed  of  1909  (Ex.  13)  filed  in  this  case 
describes  the  extent  of  the  property  to 
which  the  defendant  No.  6  i».  entitled  as 
zarpeshgidar  of  the  mokarrari  interest  in, 
that  village.  He  is  not  entitled  to  hold 
possession  of  more  than  what  that  docu* 
rnent  gives  him.  Therefore  the  plaintiff  is 
entitled  to  take  khas  possession  of  alL  the 
properties,  exceptTolaBbagiya,  as  described 
and  detailed  in  the  deed  of  1909  (Ex,  13). 
This  again  was  a  clever  move  on  the  part 
of  Janak  Misra  to  have  a  large  quantity  of 


g* 

lands  excluded 'from  Uoicza  Keri  and  to 
have  Tola  Bhagiya  recorded  in  the  Record 
of  Rights  in  his  name  as  owner  thereof 

The  result  is  that  the  judgment  of  the 
Court  below  is  reversed  and  the  decree  is 
set  aside,  and  the  plaintiff's  suit  is  decreed 
with  costs  throughout  The  plaintiff  will 
alsd  be  entitled  to,  get  mesiie  profits  prior 
to  the  suit  from  defendants  Nos.  1  to  5. 
The  amount  will  be  determined  in  a  subse- 
quent proceeding.  She  will  get  mesne  pro- 
fits also  pehdente  lite  as  also  for  the  subse- 
quent period  up  to  the  date  of  delivery  of 
possession  or  thiee  years  from  the  dabe  of 
the  decree  of  this  Court,  whichever  event 
occurs  first. 

Adami,  J.— I  agree. 

2.  K.  Decree  s&t  aside 


V.  SUN'DARAM  AHAR. 


1015 


MADRAS  HIGH  COURT. 

CIVIL  MISCELLANEOUS  APPEAL  No.  432  OF 
1924 

AND 

CIVIL  REVISION  PETITION  No.  175  OF  1925 

October  22,  1925 
Present:—  Mr.  Justice  Wallace  and 

Mr.  Justice  Madhavan  Nair. 

V.  VENKATARAMA  AIYAR— 

APPELLANT 


T.  V.  8UNDARAM  AIYAR  AND  OTHERS  - 
RBSPONDENTS. 

Civil  Procedure  Code  (Act  V  of  1908),  0  XLI,  r  23 
—  Trial  Court,  findings  of,  on  all  issues  —  Order  of 
remand  for  further  evidence  on  some  issues  only- 
Jurisdiction. 

An  older  of  remand  by  a  Court  of  Appeal  m  a 
case  where  the  Trial  Couit  has  disposed  itself  of  all 
the  issues  find  given  a  decree  on  tlios  *  findings  cannot 
come  within  the  scope  o£  0  XLI,  i,  23,  0  P.  V  ,  and 
is,  therefore,  not  appealable 

Muppauaraju  Venkata  Radhakrishna  Rao  v 
Venthurumilli  Venkatarao.  81  Ind  Gas  9G5,  (1921) 
M.  W  N  922,  47  M  L  J  55  >,  20  L.  \V  711,  33  M, 
L  T  135,  A  I  R  1923  Mad  220,  48  M  L  J  713, 
followed 

A  Court  of  Appeil  acts  without  jurisdiction  if  it 
remands  "the  whole  case"  while  it  wants  f  urthei  evi- 
dence only  on  two  issuas  The  proper  course  in  such 
circumstances  is  to  direct  the  Trial  Court  to  take  the 
requisite  further  evidence  and  submit  it  to  the  Appel- 
late Court  for  recording  its  own  findings 

Appeal  against,  and  petition  under  s  115 
of  Act  V  of  1903  and  s.  107  of  the  Govern- 
ment of  India  Act  in  the  alternative  to  re- 
vise an  order  of  the  Court  of  the  Second 
Additional  Subordinate  Judge,  Tinnevel- 
ly,  dateft  the  30th  October  1924,  in  A*  S,  No. 


199  of  1924,  preferred  against  a  decree  pi 
the  Ojurt  of  the  Principal  District  Munsif, 
Tinnevelly,  in  0.  S,  No.  17  of  1923. 

Mr.    M.  S.   Vaithinatha    Aiyar,  for  the 
Appellant. 

Messrs  K.  S.  Champakesa  Aiyangar   and 
V.  G.  Gopalaratnam,  for  the  Respondents. 

JUDGMENT.™ It  has  been  argued  be- 
fore us  that  no  appeal  lies  in  this  case.  We  djre 
clear  that  an  order  of  remand  in  case  whfcre 
the  Trial  Court  has  disposed  itself  of  all  "the 
issues  and  given  a  decree  on  those   findings 
cannot  come  within  the  scope  of  O.  XLI,  r, 
23,  and  that,  therefore,  no  appeal  lies.  Certa- 
in decisions  of  this  Court  have  been  cited 
before  us  to  the  effect  that  the  order  of  re- 
mand must  be  deemed  to  have  b§en  passed, 
though  improperly  passed,  under  p.  XLI, 
r  23  and  that,  therefore,  an  appeal  lies,   but 
no  decision  quoted  has  the  effect  of  over- 
ruling the  view  we  took  in  a  similar  case, 
Muppavaraju   Venkata  Radhakrishna  Rao 
v.  VentiLitrurnilli  Venkatarao  (1)  which  we 
326  no  reason  at  present    to  abandon.    We 
hold,  therefore,  that    no  appeal    lies     The 
appsal  against  order  is  dismissed.    In  the 
civil  revision  petition  we  are  confined   to 
the  question  whether  the  Subordinate  Judge 
exceeded  or  improperly  exercised  his  juris- 
diction in  the  order  under  revision.    That 
order  displays  several  inconsistencies  and 
is  obscure  in  its  purport.    The  Subordinate 
Judge  holds  at  one  stage,  e.  g  ,  that  3rd  de- 
fendant is  not  a  necessary  party  and  yet  re- 
mands the  caseretaininghimon  the  record. 
Again  at  another  stage  he  remands  "the 
whole  case'1  while  he  lays  down  that  only 
issues  Nos  5  and  6  are  to  be  re-tried.  He  does 
not  say  wherefrom  he  gets  a  jurisdiction  to 
remand  the  whole  case   for  re-trial  merely 
because  he  wishes  further  evidence  on  those 
issues,  particularly    when  the  Trial  Court 
has  considered  those  issues  on  the  evidence 
which  wai  put  in  before  it  and  recorded  its 
findings  thereon.    It  appears  to  us  that  the 
Subordinate  Judge's  order  was  made  with- 
out jurisdiction  and  that  the  proper  course 
in  the  circumstances  was  for  him  to  direct 
the  principal  District  Munsif  to  take  the 
further  evilencB  he  wished  and  submit  it 
to  his  C3urt,  whereon  he  wjuld  record  his 
o,vn  finding.     We  set  aside    the    order  of 
remand  and  direct  that  the  decision  of  the 
principal  District  Munsif  stand,  and  that 
the  District  Judge  do  call  for  auy  further 
(L)  Slltid   Ou  935,   (1921;  M  W    &  9*2;  47  M  L. 


1043 


KHBM  XAtUN  DAS  *.  BALBEO 


evidence  lie  requires  and  on  its  receipt 
decide  the  appeal  de  novo  for  himself.  We 
would  make  it  clear  that  the  lower  Appel- 
late Court's  decision  that  the  3id  defend- 
ant is  not  a  necessary  party  falls  to  the 
ground  along  with  the  reversal  of  its  order 
and  is,  therefore,  still  open  for  decision  at 
the  re-hearing  of  the  appeal  The  civil  re- 
vision petition  is  allowed  to  this  extent. 
There  will  be  no  order  as  to  costs  either  in 
the  civil  revision  petition  or  the  appeal 
against  order. 

v.  N.  v.  Appeal  dismissed. 

8.  D.  Petition  allowed. 


MADRAS  HIGH  COURT. 

CIVIL  REVISION  PETITION  No.  341  OP  1924. 

November  20,  1925. 
Present ;— Mr.  Justice  Wallace. 
RAMASWAMI  AIYANGAR— PLAINTIFF 
— PETITIONER 

versus 

T.  RAGHAVA  AIYANGAR-DEFENDANT- 
RESPONDENT. 

Stamp  Act  (II  of  1890),  s.  85,  Sch.  7,  Art  1—Un- 
ttamped  document—* Acknowledgment,  whether  evidence 
of  debt — Oral  evidence. 

Whether  an  acknowledgment  of  a  debt  was  execut- 
ed in  order  to  supply  evidence  of  such  debt  or  was 
a  mere  note  or  extract  of  accounts  cannot  be  decided 
on  the  terms  of  document  alone.  Therefore,  if  such 
document  is  unstamped  it  cannot  be  held  to  be  in- 
admissible in  evidence  without  taking  oral  evidence 
as  to  the  purpose  for  which  it  was  executed. 

Surjumull  Uurhdhar  Chandick  v.  Ananta  Lai 
Damani,  74  Ind.  Gas.  1029,  46  M.  948,  45  M  L  J 
399;  18  L.  W.  485;  (1923)  M.  W.  N.  743,  A.  Fk  1924 
Mad.  352,  relied  upon. 

Petition,  under  s.  25  of  Act  IX  of  1887, 
praying  the  High  Court  to  revise  a  decree 
of  the  Court  of  Small  Causes  at  Tanjore 
dated  the  10th  October  1923,  in  S.  C  g' 
No.  542  of  1922.  '  ' 

Mr,  R.  Sethurama  Sastri,  for  the  Peti- 
tioner. 

Mr.  A.  V.  Viswanatha  Sastri,  for  the  Re- 
Bpondent. 

JUDGMENT,— The  point  at  issue  in 
this  petition  is  whether  the  lower  Court 
was  right  in  ruling  that  a  "rokha"  which 
plaintiff  wanted  to  file  was  inadmissible  in 
•vidence  because  unstamped.  The  'rokha,' 
in  my  view,  is  certainly  an  acknowledg- 
ment of  a  debt  of  Rs.  250  due  to  plaintiff 
by  defendant  and  is  signed  by  him,  and 
was  left  in  plaintiff's  possession.  It  con- 
tains no  promise  to  pay  the  debt  or  any 
atipulatioa  to  pay  interest  or  to  deliver  pro- 


[051,0.1926] 

perty.  The  only  factor  remaining,  by  which 
it  may  be  brought  within  Art.  1  oi  the 
First  Schedule  of  the  Stamp  Act  is  whether 
it  was  obtained  in  order  to  supply  evidence 
of  such  debt.  Plaintiff  argues  that  it  was 
not  obtained  for  that  purpose  because  it  is 
a  mere  note  or  extract  of  defendant's  ac- 
counts, which  plaintiff  summoned  for  but 
defendant  suppressed.  Such  a  point  is 
not  one  which  can  be  decided  on  the  terms 
of  the  document  alone.  The  surrounding 
circumstances  have  also  to  be  considered. 
Now  the  lower  Court  rejected  the  document 
in  limine  before  any  evidence  as  to  these 
circumstances  had  been  led  and  owing  to 
his  action,  it  is  probable,  as  is  urged  before 
me,  that  all  the  evidence  available  re- 
garding these  circumstances  was  not  put 
forward.  Even  as  it  is,  there  is  evidence 
in  Exs,  A,  B  and  D  practically  unanswered 
so  far  by  defendants,  which  assert  definite- 
ly that  the  "rokha"  is  only  a  copy  of  de- 
fendant's own  accounts,  in  which  the  actual 
acknowledgment  was  entered. 

In  the  view  he  took  of  the  case  the  Sub- 
ordinate Judge  held  that  it  had  to  be  de- 
cided purely  on  the  oral  evidence.  It  is 
plain  that  he  rejected  the  "rofefea"  without 
allowing  oral  evidence  as  to  the  surround- 
ing circumstances  to  be  led,  on  which  evi- 
dence it  was  his  duty  to  record  a  finding 
whether  or  not  the  dominant  idea  in  obtain- 
ing the  document  was  to  obtain  evidence 
of  the  debt.  [See  the  caee  quoted  by  the 
Subordinate  Judge  in  Surjumull  Murlidhar 
Chandick  v.  AnanlaLal  Damani  (1).] 

The  case  must,  therefore,  go  back.  I  re- 
verse the  decree  of  the  lower  Court  and 
direct  that  this  case  be  re- heard  in  the  light 
of  the  above  remarks.  Costs  up  to  date 
will  abide  the  result. 

v.  N.  v.  Case  remanded, 

8.   D. 

(1)  7Und.  Cas  1029;  40  M  048,  45  M.  L.  J.  399; 
18  L.  W.  485;  (1023)  M.  W  N.  743;  A.  I.  K.  1922  Mad. 
352, 


ALLAHABAD  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  1951  OP  1925, 

January  15,  1926. 
Present: — Mr.  Justice  Walsh. 
KHEM  KARAN  DAS— PLAINTIFF— 
APPELLANT 

versus 
BALDEO  SINQH  AND  AM<  THB.z— 

DEFENDANTS — RESPONDENT*. 
Agra  Tenancy  4#  (II  of  1901),  *. 


I.  0. 1928] 

tuitfor,  against  co-sharer— Claim  for  rent,  whether 
can  oe  joined —Precedents*- Revenue  cases 

A  osliarer,  in  a  suit  for  an  account  brought  undor 
8.  165  of  the  Agra-  Tenancy  Act  against  another  co- 
sharerv  cannot  join  a  claim  in  respect  of  a  separate 
matter  altogether,  namely,  for  rent 

Kalyan  Singh  v  Raja,  3  Uureported  Decisions,  p.  313, 
followed. 

The  High  Court  ought  to  follow,  especially  ^  in 
matters  of  procedure,  as  far  as  it  can  do,  the  policy 
or  line  of  decisions  adopted  by  the  Revenue  Side  in 
oases  which  strictly  belong  to  the  revenue  jurisdiction. 

Second  appeal  from  a  decree  of  the  Dis- 
trict Judge,  Budaun,  dated  the  31st  of 
August  1925. 

Mr.  S.  A.  Haidar,  for  the  Appellant. 


JUDGMENT.— I  agree  entirely  with 
Mr,  Haidar  that  this  is  a  nice  question  and 
an  important  question,  but  having  made  up 
my  mind  quite  clearly,  and  being  prepared 
to  give  my  reasons,  I  propose  to  dismiss  the 
appeal  so  that  he  can  appeal  without  fur- 
ther delay  to  the  Letters  Patent  Bench.  The 
question  of  law  is  whether  a  co-sharer  hav- 
ing claim  against  another  co-sharer,  in  res- 
pect of  a  separate  matter  altogether,  namely 
for  rent,  can  join  that  claim  to  a  suit  under 
0.  105  of  the  Tenancy  Act  brought  for  an 
account.  It  is  a  mere  question  of  procedure, 
but  sometimes  questions  of  procedure  go  to 
the  root  of  a  matter,  and  I  can  understand 
that  the  Revenue  Side  may  have  reasons  for 
refusing  to  allow  two  such  suits  to  be  join- 
ed. A  suit  for  accounts  involves  totally 
different  considerations,  and  inasmuch  as 
Assistant  Collectors  are  not  trained  lawyers, 
it  is  quite  likely  that  it  is  considered  im- 
portant to  keep  these  matters  distinct.  The 
revenue  procedure  is  strict  and  technical,  and 
I  find  on  referring  to  the  Fourth  Schedule, 
that  the  suits  on  the  Revenue  Side  aie  group- 
ed and  that  a  suit  under  s.  95  or  s.  102 
for  arrears  of  rent  is  grouped  in  group 
A,  whereas  a  suit  under  s  165  is  grouped 
under  group  B*  I  find  also  that  in  the 
case  of  Kalyan  Singh  v.  Raja  (I)  which 
I  am  told  refers  to  the  Board  of  Revenue 
— the  authority  which  the  learned  Judge 
has  relied  upon  in  his  judgment — the 
Revenue  Side  have  held  that  rent  pay  able  by 
a  co  sharer  for  his  tenancy  cannot  be  taken 
into  account  under  this  section.  I  have 
not  seen  the  report  and  I  do  not  know  what 
reasons  are  given,  but  I  assume  that  the  Re- 
venue Court  have  good  reasons.  Mr.  Agar- 
wala  in  his  well-known  book  on  this  subject 
upon  which  he  is  an  authority  cites  this  case 
without  comment,  presumably  because  there 

(1)  3  Ujjreported  Decisions,  p  S43. 


BHUNJAKOA  1U0  V,  PBfclYAtfHAUBI  GOHNlilN.  1047 

was  no  special  reason  for  criticising  it.  I  think 
the  High  Court  ought  to  follow,  especially  in 
matters  of  procedure,  as  far  as  it  can  do  6o> 
the  policy  or  line  of  decisions  adopted  by 
the  Revenue  Side  in  cases  which  strictly 
belong  to  the  revenue  jurisdiction,  and  I, 
therefore,  hold  that  the  %  learned  District 
Judge  was  right  in  the  view  which  he  took. 
Holdingthe  clear  view  that  I  do,  and  having 
given  my  reasons  for  agreeing  with  the 
lower  Appellate  Court,  I  dismiss  the  appeal 
summarily  so  as  to  enable  the  appellant,  if 
so  advised,  to  appeal  under  theLetters  Patent 
without  delay. 

s.  s.  Appeal  dismissed. 

N.  H. 


MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEALS  Nos.  84  TO  96  AND 

474  OP  1924. 

July  22,  1925, 

Present:— Mr.  Justice  Ramesam. 
R,  BHUNJANGA  RAO-DEFENDANT 
— APPELLANT 

versus 

PERIYATHAMBI  GOUNDAN  AND 
OTHEKS— PLAINTIFFS— RESPONDENTS. 

Madras  Estates  Land  Act  (I  of  1908),  s  2  (3)-* 
Post  settlement  Inam,  whether  estaU — Inaoidar,  whe- 
ther land-holder — Second  appeal — New  case. 

The  consideration  that  a  person  is  the  owner  of  both 
the  varams  is  material  m  determining  the  applicabil- 
ity of  the  Madras  Kstates  Land  Act,  only  wheie  the  land 
is  a  whole  mam  village  and  an  enfranchised  mam.  [p, 
104J),  coi  1] 

WJioro  a  post  settlement  inam  is  a  whole  village 
held  on  a  permanent  under-tenure,  the  case  falls 
under  s  2  (3)  (c)  of  the  Madras  Kstates  Land  Act  [p. 
1050,  col  1] 

Where  in  a  suit  by  a  tenant  claiming  to  be  a  ryot. 
under  the  Madras  Estates  Land  Act  to  set  aside  an  alleg- 
ed sale  of  his  holding  against  an  inamdar^  the  plaintiff 
and  the  defendant  both  in  the  Trial  Court  and  in 
the  Court  of  Appeal  proceed  on  the  footing  that 
the  plaintiff  was  a  ryot  and  the  defendant  a  land- 
holder, it  is  not  open  to  the  defendant  in  second 
appeal  to  contend  that  he  (the  defendant)  was  a  ryot 
and  that  the  plaintiff  was  an  under-tenant  under  him 
and  that  the  Madias  Estates  Land  Act  was  not  applic- 
able as  between  them.  [p  J  04 9,  col  2] 

Second  appeals  against  a  decree  of  the 
District  Court,  North  Arcot  at  Vellore 
in  A.  S.  Nos.  122  to  134  and  121  of 


>referred  against-  that  of  the  Court  of  the 
tu'ti&  Ciyisional  Officer  fit  Vellore,  in 

nmaVy'  Suits  Nos.  4  to  8,  14  to  21  and  '3 

of  1921  respectively. 

the  Advocate-General     and  Mr,  M.  S. 
Ydidyanatiia  Iyer,  for  the  Appellant. 
'"Mr,  SttbrAhmanya  Iyer,  f  or  the  Respond- 
ents. 

1  JUDGMENT.— The  first  point  argued 
by  the  learned  Advocate  General  Tjefqre 
me  in  this  batch  of  second  appeals  is  that 
the  'Estates ,  Land  Act  does  not  apply  to 
tlje  case.  To  understand  ,  this  poinMt  is 
nefcessary  to  set  forth  the  history  of  the 
suit  village.  Exhibit  D  is  a  statement 
dated  the  15th  day  of  January  1873  initial- 
led by  Mr.  Whiteside  the  then  Collector 
of  North  Arcot.  It  is  headed  'statement 
showing  the  particulars  of  shrotriem  mok- 
asa  sarvamaniam  villagers  in  the  minor 
estate  of  Ami  jaghir.  North  Arcot  Dis- 
trict.11 It  shows  that  the  suit  village  of 
Rajammarpuram  was  granted  by  the  then 
jaghirdar  Thirumala  Rao  Saheb  in  Fasli 
1211  to  the  ancestor  of  the  defendant's 
vendor  K.  Krishna  Rao.  The  grantee  seems 
to  have  applied  that  certain  lands  may 
be  given  t6*  him  t>n  cowU  tetture  for  con- 
structing a  tank  and  building  a  village. 
The  suit  village  was  granted  to  him  and 
for  the  first  two  years  after  the  grant,  no 
assessment  was  fixed.  It  was  said  that  the 
assessment  will  be  fixed  after  two  years.  In 
Fasli  1215  he  submitted  accounts  and  re- 
quested that  50  pagodas  may  be  fixed  on 
it  as  mutka  (rent)  and  it  was  accordingly 
fixed.  Afterwards  a  document  was  issued 
to  his  son  Madhava  Rao  in  Fasli  1233 
which  states  that  the  bcriz  was  reduced 
to  10  pagodas.  So  far  the  statements  in 
column  19  of  Ex.  D  suggest  that  the  vill- 
age was  granted  to  a  ryot  for  rent.  The 
document  then  proceeds  to  say  "The 
inam  appears  to  have  been  granted  sub- 
sequent to  paimas'h.  In  1223  the  grantee 
represented  that  the  ryots  were  very  poor 
and  the  rent  should  be  reduced.  Accord- 
ingly 40  pagodas  were  permanently  remit- 
ted. It  will  be  safe  to  continue  the  giant 
which  evidently  falls  within  the  scope  of 
s.  15  of  Regulation  XXX  of  1802".  From 
the  reference  to  s.  15  of  Regulation  XXX 
of  1802,  the  Advocate- General  argues  that 
the  whole  transaction  was  one  of  leasing 
to  a  ryot,  thai  the  so-called  grantee  Krish- 
na Rao  and  his  son  Madhava  Rao  were 
inerely  ryots  tinder  the  Ami  jaghirdar  and 
the,  defendant  who  is  the  descendant  of 


the  original  grantee  is  a  ryot  under  the 
Ami  jaghirdar  and  the  plaintiffs  are  under- 
tenants to  whom  the  Estates  Land  Act 
does  not  apply.  If  the  defendant  is  not 
a  ryot  under  the  jaghirdar  of  Arni  but  is 
himself  regarded  as  a  land-holder,  his  posi- 
tion would  then  be  that  of  one  who  is 
generally  and  loosely  described  as  a  sub- 
sequent inamdar.  If  he  is  a  subsequent 
inamdar,  the  matter  is  not  open  to  me 
for  discussion  though  I  confess  I  am  inclin- 
ed to  agree  with  the  view  of  Wallis,  d.  J. 
in  Gadadhara  Das  v.  Suryanarayan  Pt>t- 
naik  (1)  and  of  Schawbe,  0.  J.,  and'  De- 
vadoss,  J./ in  Brahmayya  v.  Achiraju  (2). 
So  far  ay  this  High  Court  is  gonp^rnedi 
the  matter  is  now  settled  by,  the 
majority  of  the  Full  Bench  against^  an 
inamdar  and  I  am  bound  by  it.  Where  a 
grantee  pays  some  kind  of  rent  to  the 
zemindar  whether  he  should  be  regarded 
as  a  subsequent  inamdar  and,  therefore,  a 
land  holder  to  whom  the  Estates  Land  Act 
should  apply  as  between  him  and  his  tenant 
or  whether  he  should  be  regarded  as  a  ryot 
under  the  zemindar  paying  rent  to  him, 
the  Estates  Land  Act  applying  to  his  re- 
laticns.with  the  zemindar  but  not  as  be- 
tween him  and  his  under-tenants  (s.  19  of 
the  Act)  must  always  be  a  difficult  ques- 
tion to  decide  in  the  application  of  the  Full 
Bench  decision.  In  this  state  of  the  author- 
ities, if  there  is  nothing  else  in  the  cgse, 
the  matter  would  no  doubt  be  a  somewhat 
difficult  point  to  decide  but  the  pleadings 
in  the  case  make  my  task  lighter  and  the 
position  of  the  appellant  more  difficult. 
The  suit  was  brought  under  s.  112  of  the 
Estates  Land  Act.  The  defendant  \\as 
described  as  a  shrotriemdar.  Even  mokaea, 
Ex.  D  pui ports  to  be  a  list  of  shrolri&m 
sarvamaniam  villagers  and  a  mere  cultivftt- 
ing  ryot  cannot  get  into  such  a  document. 
Paragraph  4  of  the  plaint  says  : — l<  The 
plain  tills  and  otheis  have  been  paying  to 
the  defendant's  predecessors1  ki$t>  at  the 
said  xate  fiom  time  out  of  memory  and  the 
lands  compiised  in  pattah  No.  34  .as  ryoti 
lands".  Ihis  is  not  denied  in  the  written 
statement;  on  the  other  hand  para.  5  of 
the  written  statement  lefers  to  the  plaint- 
iff and  other  ryots  of  the  village.  So  also 
paia,  7.  In  para.  10  of  his  written  state- 
CD  64  Jnd.  Cas.  317;  44  M.  677;  41  M.  L.  J1.  97; 
(1921)  M  W.  N.413;  14  L  W.  453.  '  ' 

(2)  70  Jnd.  Cas.  615;  45  M.  716;  (1922)  M.  W.  N.  280; 
31  M.L.  T.91;  43  M.  L,  J.  229;  A.  I,  B,  1922  Mad, 
373  F.  B. 


(82  L  0.192ft] 

ment  defendant  pleads  that  he  is  entitled  to 
levy  the  premium  under  the  Estates  Land 
Act.    Paragraph  11  refers  to  plaintiffs  and 
other  ryots  of  the  village.    Paragraph  12 
says  that  the-suit  is  barred  by   limitation 
under  Schedule  A  serial  No.  5  under  s.  55 
of  the  Madras  Estates  Land  Act.    No  plea 
is  taken  in  the  written  statement;  no  issue 
raised  as    to  the    maintainability   of  the 
suits.    Ill  the  course  of  the  arguments  be- 
fore the  Deputy    Collector,  the  defendant 
Seems  to  have  argued  that  he  possessed  oc- 
cupancy right  over  the  lands  of  the   shro- 
tnem.   The    Deputy    Collector    meets  his 
argument  toy  referring  to  the  judgment  in 
Summary  Suits  NOB.  53  to  97    of  1915  on 
the  file  ^of  the    Divisional  Officer,  Vellore, 
(Kx.  I)  which  held  that  the  ryois  of  the 
village  held  occupancy  rights   and  which 
also  shows  that  the  District  Munsif  befoie 
whom    the  suits  were    originally  filed  re- 
turned  them  for  presentation  before    the 
Revenue  Divisional  Officer  on  the  ground 
that  the  shrotnem  was  an  estate  under  the 
Estates  Land  Act.    Those  suits  were  by  a 
mortgagee  of  the  defendant,  the  defendant 
himself  not  being  a  party  to  them.    It  may 
be  that  the  Deputy  Collector  was  not  quite 
correct  in  regarding  Ex.  I    as  conclusive 
between  the  parties.    The  Deputy  Collector 
then  says    "When  this  position  is  arrived 
at,  there  is  no  more  argument  necessary  to 
show  that  the  defendant  was    not  acting 
under  s.  53  of  the  Estates  Land  Act  and 
that  he  was  not  allowed  by  the  provisions 
of  s.  46  of  the  Act  to  collect  premium  from 
the  plaintiffs.11    Up  to  this  stage   no  ques- 
tion   about  the  applicability   of  the  Act 
seems  to  have  been  raised  by  the  defendant 
and  even  then  the  point  raised  by  him   was 
that  he  was  th&  owner  of  both  tho  varams 
and  that  the    plaintiff  had  no  occupancy 
right.      There    seems    to     have   been    a 
confusion  of    thought  on    the  part  of  the 
defendant  and  of  his  legal  advisers.    The 
consideration  that  a  person  is  the  owner  of 
both  the  varams  is  material  in  determining 
the  applicability  of  the  Estates  Land  Act, 
only  where  the  land  is  a  whole  village  and 
an  enfranchised  inam:  mde  s.  2,  cl  (3)  (d) 
of  the  Act.    We  have  nothing  to  do  with 
an  enfranchised  inam  in  this  case.    The 
suit  land  is  part  of  the  Ami  estate.    The 
only  question  is  whether  the  defendant  is 
himself  a  land-holder  or  whether  he  is  a 
ryot  under  the  jaghirdar    and    it  is   im- 
material whether  he  was  the  owner  of  both 
welvaram  apd  jmdwarwn,  prior  to  the  suit. 


GOUNBAN. 


1049 


If  he  is  a  subsequent  tinamdart  even  if  he 
was  at  oije  time    owner  of  both  melwaram 
and  kudivaram,  that  fact   does  not  make 
the  act  inapplicable  as  in  the  case  of  an 
enfranchised   inam.     But    the    defendant 
seems  to  ha,ve  thought  up   to  the  arrange- 
ment in  1919  under  Ex.  C  he  was  the  owper 
of  bothvarams  and,  therefore,  he  had  a  rigbt 
to  take  premium  or  charge  enhanced  repts 
though  he  is  a  Subsequent  inamdar  and 
that    somehow    some     provisions    of  Hie 
Estates  Land    Act    will    not  touch  lum. 
Still  he  seems  fo  have  thought  that  he  was 
a  land-holder  under  the  Estates  Land  Act. 
in  appeal  also  no  question  as  to  the  appli- 
cability of  the  Estates  Land  Act  seems  to 
Lave  been    raised.    In  second  appeal    the 
point    was,  no  doubt,   expressly  raised  in 
grounds  Nos  2  to  8    The  Advocate  General 
suggests  that  the  defendant  never  meant 
admit  that  the  act  ^as  applicable  to 
up  to  the  execution    of  Ex  0  in  1919 
that  the  arrangement  under  Ex.  C  itself  ^as 
effected  in  consideration  of  the   defendant 
admitting  plaintiff's  occupancy  rights  a$d 
it  may  be  that  the  defendant  thought  that 
after  the  conferring  of  the  occupancy  rights 
on  the  tenants  under    Ex.  C,   the  village 
became  an  estate,  but  the  District    Judge 
points  out  in  para  3  of  his  judgment  that 
the  suggestion  put  forward  by  the  defend- 
ant, namely,   that  Ex.   0  was  executed  in 
consideration    of  defendant    admitting  oc- 
cupancy   rights    of    the    tenant    differed 
materially  from  the   plea   in  the  written 
statement.    Anyhow  the    written  statement 
does  not  deny  the    allegation  in  para  4;<rf 
the  plaint  that  the  plaintiffs  and  others  u  e^e 
enjoying  the  lands  as  ryoti  lands  and  were 
paying  kist  to  the  defendant's  predecessors 
from   time  out  of  memoiy.    It  is  impossible 
to  make  out  from  defendant's  written  state- 
ment that  they  ever  meant  to  deny  that  tfye 
suit  land  was  an  estate  prior  to  1919  and  to 
allege  that  it  became  an  estate  only    after 
1919.    Thus  with    reference  to  the  plead- 
ings, I   must  hold  it    is  not    open  to  tbe 
defendant  now  to   contend  that  the  Estates 
Land  Act  is  not  applicable  as  between  him 
and  the  plaintiffs,    I  think  there  is  also 
another  giound  on  which  this  point    must 
be  decided    against  the  appellant  though 
this  was  not  suggested  by  the  respondent's 
Vakil  at  the  time  of  argument  and   there 
was  no  discussion  on  it   at  the  Bar.    The 
view  taken  by  Wallis,  C.  J ,  in  Gadadhafa 
Das  v.    Suryanarayana    Patnaik  (1)  -  arf 
by  Schawabe,  0,  J.,  and 


1050 


BHtWJJWOA  RAO  V.  Mat  f  ATtfitftl 


Brahmayyav.  Achiraju  (2)  can  only  apply 
to  minor  subsequent  inams,  that  is,  the  so- 
called  subsequent  inams  which  are  not 
whole  villages.  Where  the  subsequent 
inam  is  a  whole  village  held  on  a  perma- 
nent under- tenure,  the  case  must  really 
fall  under  s.  2  (3)  (e)  and  there  is  no  scope 
for  a  difference  of  opinion.  In  the  present 
case  though  the  suit  village  was  carved  out 
of  another  larger  village,  ever  since  1801 
it  was  regarded  as  a  distinct  and  separate 
village.  That  being  so,  cl.  (e)  of  s.  2  (3) 
will  apply.  The  first  contention  of  the 
appellant  must,  therefore,  be  disallowed  and 
the  conclusion  of  the  Courts  below  that  the 
higher  rent  sought  to  be  charged  on  the 
plaintiffs  and  other  tenants  under  Ex.  0  is 
not  binding  on  the  ryots  must  stand. 

The  second  point  argued  by  th^Advocate- 
Geneial  may  now  be  stated.  In  1919  the 
defendant  and  his  ryots  entered  into  an 
arrangement  described  in  Ex.  C  by  which 
from  Fasli  1329  onwards,  a  rate  of  rent 
higher  than  the  rate  prevailing  up  to  then 
was  to  be  paid  for  the  land?  in  the  village 
and  a  lump  sum  of  one  year's  rent  accord- 
ing to  the  old  rate  was  to  be  paid  to  the 
defendant.  The  sum  was  accordingly  paid. 
In  para.  6  of  the  plaint  it  was  suggested 
that  the  payment  was  towards  the  rent  for 
Fasli  1329.  This  was  denied  by  the  defend- 
ant who  alleged  it  was  in  pursuance  of 
Ex.  C.  The  plaintiff  took  no  issue  on  the 
point.  The  whole  oral  evidence  set  forth 
by  the  Divisional  Officer  shows  it  was  in 
pursuance  of  Ex,  O  and  his  contention  was 
that  it  was  paid  as  a  premium.  Nor  was 
any  suggestion  made  before  the  District 
Judge  that  the  payment  was  for  rent  for 
Fasli  1329.  This  payment  was,  therefore, 
obviously  a  premium  and  was  so  regarded 
by  the  Divisional  Officer,  though  its  pur- 
pose seems  to  have  been  to  enable  the  de- 
fendant to  make  certain  improvements  to 
the  village  tank.  Whatever  the  purpose 
might  have  been,  the  defendant  was  not 
entitled  to  collect  it  under  8.  46  of  the  Act. 
The  plaintiff  and  the  other  ryots  were  entitl- 
ed to  recover  it  from  him  if  they  filed  a 
euit  within  six  months  from  the  date  of  the 
collection.  (Schedule,  A  part  II,  item  No. 
15).  In  this  suit,  there  is  no  prayer  for  the 
recovery  of  that  amount.  Even  if  there  is 
a  prayer,  it  would  have  been  barred. 
But  the  plaintiff  alleged  in  para.  7  of  the 
~  tint  that  the  defendant  is  liable  to  have 
k  amount  credited  from  the  rent  for  Fasli 
there  is  no  prayer  asking  for  such 


a  credit  in  para.  11  of  the  plaint.  In  the 
view  1  take,  the  absence  of  a  prayer  i? 
immaterial.  If  the  suit  had  been  filed  with* 
in  six  months  after  payment,  the  plaintiff^ 
might  be  granted  a  declaration  that  th£ 
amount  paid  by  the  ryots  might  be  ere* 
dited  towards  the  rent  for  Fasli  1329.  Bu ; 
the  suit?  were  not  filed  within  six  months 
afterpayment.  To  compel  the  defendant 
to  credit  it  towards  the  rent  of  Fasli  132{ 
is  the  same  as  taking  back  the  amoun 
from  him  on  the  ground  of  an  illegal  col- 
lection and  then  re-paying  it  to  him  under 
the  heading  of  rent.  This  process  is  no$ 
permissible  as  it  cannot  be  recovered  from 
him  on  account  of  the  bar  of  six  months* 
The  Deputy  Collector  did  not  discuss  the 
point.  It  is  a  point  which  arose  only  on  the 
fourth  issue  after  his  findings  on  the  first 
and  second  issues  are  known.  Accepting 
his  finding  on  the  fiist  and  second  issues 
that  the  patlahs  for  enhanced  rents  are 
not  valid,  the  question  arises  whether  the 
pattahs  should  not  be  held  to  be  valid  for 
the  rents  properly  payable  according  to 
plaintiff's  contentions,  and,  if  so,  whether 
the  sale  notices  should  be  held  valid  tq 
that  extent.  [Vide  s.  53,  cl.  (2)].  The  point 
was  raised  before  the  District  Judge  by  th$ 
defendant  and  the  District  Judge  dis- 
allowed it  on  grounds  which  are  not  intel- 
ligible  to  me.  The  Judge  says  "The  pay- 
ments cannot  be  regarded  as  illegal  exac* 
tions  in  addition  to  the  rents  lawfully 
payable.  They  were  made  by  plaintiffs  in 
ignorance  of  their  legal  rights/1  I  am  not 
able  to  understand  how,  because  the  plaint- 
iffs made  the  payments  in  ignorance  of 
their  legal  rights  and  the  defendant  ob- 
tained the  payment  taking  advantage  of 
the  ignorance,  the  payment  is  other  thai* 
an  illegal  payment  falling  under  s.  144  of 
the  Act.  It  was  not  paid  as  rent.  It  was 
paid  as  something  else.  Defendant  was  not 
entitled  to  it;  it  was,  therefore,  an  illegal 
exaction  The  plaintiffs  ought  to  have  sued 
for  it  within  six  months.  Their  right  to 
recover  it  is  barred.  They  are,  therefore, 
bound  to  pay  the  rents  for  Fasli  1329  and 
the  sale  notices  to  set  aside  which  'the  suits 
are  filed  under  s  112  of  the  Act  are  partly 
valid  and  partly  invalid,  See  s.  52  (3)  of  the 
Estates  Land  Act. 

I,  therefore,  modify  the  decrees  of  the 
Courts  below  by  declaring  that  the  sale 
notices  issued  by  the  defendant  are  invalid 
in  so  far  as  the  excess  rent  charged  under 
Ex.  X  is  concerned,  but  are  valid  in  so  far 


C92 1,  0. 1926J 

as  they  cover  the  rent  previously  payable 
by  the  ryots. 

The  parties  will  bear  their    own  costs 
throughout, 

v.  N  v.  Decree  modified. 

s.  ix 


RiTflAK  SINGH  fc  COMMISSIONER  09  WOOUS-TAX, 


1051 


MADRAS  HIGH  COURT, 

ORIGINAL  SIDE  APPEAL  No.  15  OF  1925. 

September  8, 1925. 

Present; — Sir  Victor  Murray  Coutts  Trotter, 

KTM  Chief  Justice,  and  Mr,  Justice  Beasley, 

L.  RATHATtf  SINGH— PETITIONER— 

APPELLANT 

versus 

THE  COMMISSIONER  OP  INCOME-TAX 
TO  THE  GOVERNMENT  OP  MADRAS- 
DEFENDANT — RESPONDENT. 
§  Income  Tax  Act  (XI  of  1922),  s.  10  (2),  (vi),  (vh), 
(ix) — Obsolete    machinery — Motor-car  rendered  useless 
by  accident — Reliefs  under  sub-sections,  whether  alter- 
native or  cumulative-  -Motor-car,    purchase  of,  solely 
for  use    of  parts  in  existing  cars — Expenditure  whe- 
ther of  capital  nature    or  incurred  for  purposes  of 
business — Deductions,  right  of  assessee  to. 

'Obsolete  machinery'  under  the  Income  Tax  Act 
means  machinery  which  though  it  is  able  to  perform 
ita  function  has  become  in  common  parlance  out  of 
date  and  performs  its  function  so  indifferently  or  at 
such  a  cost  that  a  prudent  man  instead  of  continuing 
to  use  such  machinery  would  discard  it  and  instal 
more  labour-saving  machines.  A  new  car  which  is 
wholly  useless  for  its  purposes  because  it  has  broken 
to  pieces  in  an  accident  is  not  "  obsolete  machine  " 
under  the  Act  and  the  owner  is  not  entitled  to  claim 
a  deduction,  therefore,  under  s.  10,  (2)  (vn)  of  the  Act, 
[p.  1051,  col.  2.] 

The  various  reliefs  by  way  of  deductions  specified  in 
B.  10  of  the  Income  Tax  Act  are  not  alternative  and  ex- 
clusive, but  must  be  treated  as  disjunctive  and  cumula- 
tive and  if  any  deduction  claimed  falls  within  the  ox- 
press  words  of  any  one  of  the  sub-sectiona,  it  is  not  open 
to  Government  to  say  that  it  is  really  covered  by 
the  general  provision  of  sub-s  (in),  i  e  ,  the  omnibus 
cl.  (vi)  cannot  be  construed  as  extinguishing  the 
right  to  deductions  which  are  specifically  outlined 
and  defined  in  other  sub-sections  of  the  Act.  Ip.  1052, 
col.  2;  p  1053,  col.  1  ] 

Appeal  from  an  order  of  Mr.  Justice 
Kumaraswami  Sastri,  dated  the  13th  August 
,1^24,  passed  in  the  exercise  of  the  Ordinary 
Civil  Jurisdiction  of  this  Court  in  the 
matter  of  s.  45  of  the  Specific  Relief  Act, 
s.  66  of  the  Income  Tax  Act  and  of  Rathan 
Motor  Service, 

Mr,  K.  V.  Sesha  lyengar,  for  the  Appel- 
lant. 

Mr.  M.  Patanjali  Sa$tri>  for  the  Respond- 
ept. 


JUDGMENT,— This  Reference  raiaea 
two  points.  The  assessee's  business  is  that 
of  an  owner  of  motor-cars  plying  for  hire. 
Only  two  points  were  raised  before  the 
learned  Judge,  though  the  first  was  raised 
under  two  heads.  We  propose  first  to  dis- 
pose of  the  second  contention. 

The  assessee  was  the  owner  of  a  new  car 
which  very  shortly  after  it  was  purchased 
met  with  an  accident  and  had  to  be  sold  as 
scrap  iron  and  the  learned  Judge  has  held 
that  this  entitles  him  to  claim  a  deduction 
under  s.  lQ(2)(vii)  of  the  Indian  Income  Tax 
Act  of  1922  on  the  footing  that  this  may  be 
treated  as  having  become  in  the  words  of 
the  Act  'obsolete.5  It  seems  to  us  that  this 
is  contrary  to  the  plain  meaning  of  the 
language  used.  'Obsolete  machinery'  means 
machinery  which  though  it  is  able  to  per- 
form its  function  has  become  in  common 
parlance  out  of  date  and  performs  its  func- 
tion so  indifferently  or  at  such  a  cost  that 
a  prudent  man  instead  of  continuing  to  use 
such  machinery  would  discard  it  and  instal 
more  labour-saving  machines.  In  our 
opinion,  the  woid  'obsolete'  is  quite  in- 
applicable to  a  new  car  which  is  wholly 
useless  for  its  purposes  because  it  has 
broken  to  pieces  in  an  accident  and,  in  our 
opinion,  this  cannot  be  allowed  as  a  deduc- 
tion and  we  disagree  with  the  learned 
Judge. 

A  much  more  difficult  point  is  raised  with 
regard  to  the  second  matter  which  relates 
to  certain  items  which  were  disallowed 
by  the  Income  Tax  Authorities  as  being 
of  the  nature  of  capital  expendituie  which 
is  excluded  from  deduction  by  e.  10  (2) 
(ix).  That  sub-section  allows  any  ex- 
penditure (not  being  in  the  nature  of 
capital  expenditure)  incurred  solely  for  the 
purpose  of  earning  the  profits  or  gains  of 
the  business.  The  latter  comes  to  a  total 
of  Rs.  3,296-2-2  and  it  seems  reasonably  clear 
that  the  first  three  items  were  additions  to 
the  machinery  and  plant  used  by  the  firm, 
which  -can  clearly  be  classed  under  the  head 
of  capital  expenditure.  The  largest  item  is 
one  of  Rs.  J,9z5  which  is  described  as  the 
costs  of  the  old  car  purchased  from  Tirali 
Srinivasa  lyengar.  The  evidence  of  the 
assessee  about  that  which  seems  to  have 
been  accepted,  is  that  he  bought  the  car 
not  to  use  it  as  car  but  to  resolve  it  into  its 
component  elements  and  use  the  parts  for 
casual  repairs  to  his  existing  fleet  of  caw. 
The  remaining  items  are  for  the  renewal 


J052 


RATflAN  8INQ&  VtCOMMJ?8IONER  Op  INCOME- TAX  ,  [&2  L  d  1928] 


of  various  parts  of  the  cars  actually  engaged 
in  the  business  of  the  assessee. 

-  -  The  Income  Tax  Authorities  rely  upon  a 
decision  in  Scotland  under  the  Statute  in 
vogue  at  the  time,  -viz^  s  XII  of  the  Customs 
and  Inland  Revenue  Act'  of  1878,  41  Vic. 
Ch.  XV.  That  section  directs  the  Com- 
missioners in  assessing  the  profits  and  gains 
of  a  trade  to  allow  such  deductions  as  they 
may  think  just  and  reasonable  to  represent 
the  diminished  value  by  reason  of  wear  and 
tear  during  the  year  of  any  machinery  or 
appliances  used  for  the  purpose  of  the  con- 
cern and  belonging  to  the  person  or  com- 
pany by  whom  the  concern  is  carried  oh. 
Upon  that  it  was  held  in  the  case  of  Cale- 
donia Railway  Co  v.  Banks  (1)  decided  in 
the  Court  of  Exchequer  in  Scotland  that  the 
assessee  could  not  deduct  the  actual  ex- 
penses of  occasional  repairs  arid  renewals 
and  then  proceed  to  claim  an  additional 
deduction  under  the  general  section  of  the 
Statute  for  the  same  thing  under  the  guise 
of  wear  atfd  tear.  With  that  decision  no 
body  wishes  to  quarrel,  but  it  is  argued  for 
the  assessee  that  the  position  under  the 
Indian  Statute  is  quite  different  because 
the  sections  relating  to  deductions  and  the 
sub-sections  allowing  deductions  must  be 
taken  to  be  disjunctive,  and  it  is  not  an 
answer  to  a  claim  which  clearly  falls  within 
the  words  of  any  one  of  the  sub-sections  to 
say  to  the  assessee  that  he  must  be  deemed 
to  have  obtained  that  deduction  under  some 
other  sub-section.  Deductions  are  allowed, 
euchare  material  forthe  decision  of  this  case 
— under  s.  10(2)  (v)t  (vi)  and(?x).  01.  (0)  allows 
a  deduction  in  respect  of  current  repairs  to 
buildings,  machinery,  plant  or  furniture, 
the  deduction  permitted  being  the  amount 
paid  on  account  thereof.  It  is  said  in  this 
case  that  the  renewal  of  parts  of  a  machine 
cannot  be  treated  as  a  current  repair  but 
must  be  treated  as  a  new  addition  of  capital 
to  enable  the  machine  to  be  kept  in  proper 
running  order.  It  is  pointed  out  that  by 
cl.  (vi)  of  sub*s.  (2)  a  deduction  is  allowed 
in  respect  of  depreciation  which  has  been 
assessed  by  Government  at  the  not  ungener- 
ous figure  of  20  per  cent,  and  it  is  said  that 
the  assessee  having  had  the  benefit  of  this 
large  deduction  under  cl.  (in)  cannot  get  the 
same  deduction  over  again  in  another  form 
by  having  recourse  to  cl  (v).  In  our  opinion, 
if  the  Legislature  meant  the  various  reliefs 
by  way  of  deductions  specified  in  s.  10  of 

(1)  1  Tax  Gas,  487. 


the  Act  to  be  alternative  and  exclusive, 
they  could  very  easily  have  said  so  and,  in 
our  opinion,  if  any  deduction  claimed  false 
within  the  express  words  of  any  one  of 
the  sub- sections  it  is  not  open  to  Govern- 
ment to  say  that  it  is  really  covered  by  the 
general  provision  "  of  sub-s.  (vi),  It  is 
obviously  arguable  that  most  of  the  repairs 
in  this  case  can  be  described  as  current 
repairs  though  of,  course,  the  matter  is  one 
of  degree  If  pioajrhurette*  .o| -a-  motorcar 
ceases  to"  function,  we  should^ incline ,to  the 
view  that  the  renewal  of  the  carburetter 
in  order  to  enable  the  car  to  keep  the  road 
is  properly  described  as  running  repair.  On 
the  other  hand,  if  a  car  as  a  result  of  an 
accident  had  nothing  left  but  a  wheel  and 
everything  else  had  to  be  renewed,  clearly 
the  sensible  view  would  be  that  the  renewal 
of  the  car  could  only  be  described  as  an 
increase  o'f  capital.  But  apart  from  that  we 
have  the  provision  of  sub-s.  (2)  (ix)  which 
speaks  in  general  terms  of  any^  expenditure 
(not  being  in  the  nature  of  capital  expendi- 
ture) incurred  solely  for  the  purpose  of 
earning  such  profits  or  gains,  Without 
committing  ourselves  to  ^  a  view  as  to  what 
are  current  repairs  within  the  meaning  of 
cl.  (v),  we  think  it  reasonably  clear  that  the 
cost  of  repair  set  forth  in  the  list  that  was 
handed  up  to  us  must  be  treated  as  an  ex- 
penditure incurred  for  the  purpose  of  earn- 
ing the  profits  or  gains  of  the  business  and 
we  do  not  think  that  it  can  properly  be 
treated  as  capital  expenditure  which  is  ex- 
cluded from  the  operation  of  cl.  (ix)  If  this 
view  be  correct,  the  cost  of  an  old  car  for 
the  sole  purpose  of  using  bits  and  parts  of 
it  for  carrying  out  repairs  to  cars  on  the 
road  which  is  the  main  item  in  the  assessee's 
claim  for  deductions  beingnearly  two-thirds 
of  the  whole,  stands  on  the  same  footing  as 
if  he  had  obtained  and  used  new  parts  fur 
repairing  his  fleet  of  motor-cars  from  time 
to  time.  In  this  case  we  feel  that  the  Legis- 
lature has  done  that  which  is  so  often  done 
in  Indian  Acts  ani  that  by  enumerating  too 
much  and  trying  to  cover  every  possible 
case,  they  have  per  incur iam  given  more 
than  one  remedy  in  respect  of  what  is  clear- 
ly one  ground  of  deduction.  But  until  and 
unless  the  Act  is  amended,  we  think  that 
separate  heads  of  reliefs  must  be  treated  as 
disjunctive  and  cumulative  and  hold  that 
the  deductions  claimed  except  as  regards 
the  first  three  items  fall  within  the  express 
words  of  s.  10  (2)  (ix)  and  that  the  Scottish 
case  is  inapplicable  in  India,  because  the 


(92  S.  Of  19^6]  KB3AVAI.U  NAIOKER  V,  CORPORATION  OF  MADRAS. 


1053 


Act  wKicli  the  Scottish  case  Interpreted  was 
an  Actjwhich  only  coBtamed  deductions  for 
depreciation  and  did  not  like  the  Indian 
Aot  specify  under  separate  heads  other 
deductions  differently  described.  We  do 
not  think  it  would  be  right  to  hold  that 
what  I  may < call  the  omnibus  cl.  (m)  can  be 
construed  as  extinguishing  the  right  to 
deductions  which  are  specifically  outlined 
and  defined  in  other  sub-sections  of  the 
Act.  We  feel  the  result  to  be  unsatisfactory 
and  to  be  one  which  gives  more  to  the 
assessee  than  ^as  intended  or  indeed  is 
just;  but  the  fault  is  that  of  the  draftsman 
of  the  Indian  Act  who  threw  into  the 
section  the  omnibus  clause  modelled  on 
B.  X[I  of  41  Vic  Ch.  XV  without  reflect- 
ing that  such  a  clause  was  not  wanted  in  an 
Act  which  contained  the  specific  deductions 
taken  from  the  later  English  Finance  Acts 
The  result  will  be  that  the  appeal  is  allowed 
with  costs.  On  the  reference  there  will  be 
judgment  for  the  Commissioner  with  costs 
to  be  fixed  at  Rs  150. 
v.  N  v.  <  Appeal  allowed. 

MADRAS  HIGH  COURT. 

CITY  CIVIL  COURT  APPEAL  No,  22  OF  1924. 

Octobers,  1925. 

Present:— Urt  Justice  Phillips. 

P.  8  KESAVALU  NAICKER— 

DEFENDANT— APPELLANT 

versus,  #>•' 

THE  CORPORATION  OF  MADRAS— 
PLAINTW — RESPONDENT 

Madras  City  Tenants'  Protection  Act  (III  of  W22), 
ss.  2,  cl  (/,),  $~  "Lessee  of  right  ft  mn  Corporation  to 
put  up  bulling  <m  roadside  '^Construction  of  puoca 
buildjwtf  -Long  possession— Issue  of  permits,  effect 
QJ*K-Person  in  possession,  whether  tenant— Compensa- 
tion on  ejectment-  Interpretation  of  Statutes 

Where  the  defendant's  predefessoi-in-title  was 
allowed  by  the  Corporation  of  Madias  to  put  up  a 
building  on  tho  roadside  in,  the  City  of  Madias  for 
the  purpose  of  selling  yeiated  water  and  ice  and 
leases  for>  terms  had  been  granted  aiid  renewed  from 
time  to  time  to  defendant's  predecebSor  and  then  to 
defendant,  and  two  years  before  suit,  yearly  permits 
had  been  issued  under  the  Municipal  Act  to  the  de- 
fendant to  keep  the  ice  depot 

Held,  thafc  the  defendant  was  a  tenant  within  the 
meaning  of  a.  2,  cl  (4)  of  the  Madras  City  Tenants' 
Protection  Act  and  was  entitled  under  B  3,  on  eject- 
ment, to  be  paid  compensation  for  his  buildinc,  I  p, 
1054,  col  2;  p  1055,  col  I.]  L* 

When  a  man  has  spent  a  considerable  gum  of  money 
m  erecting  a  pueca  masonry  building  on  another  s 
land,  there  is  a  legitimate  inference  to  be  drawn 
that  he  did  90  in  the  hope  that  he  would  not  be 
evicted,  although  it  is  an  inference  which  may  be 
rebutted  by  other  circumstances,  v>  Inch  show  that  he' 
could  not  have  had  scoh  a  hope.  [p.  1055,  col  1.] 

When  (he  Legislature  passes  an  enactment,  its 


provisions  must  be  looked  to  rather  than  the  inten- 
tion of  ths  Legislature,  as  '  revealed  m  the  discus- 
sion which  pioc^ded  the  passing  of  the  Act  [ibid] 

Tho  preamble  of  an  Aot  may  be  releircd  to  only 
m.  a  case  ot  ambiguity  or  where  it  is  necessary  to 
interpret  the  Act  itself  so  as  to  give  ellect  to  its 
purpyit  [p  1055,  ml  1  ] 

Appeal  from  a  decree  of  the  City  Civil 
Court,  Madras,  in  O.  8.  No.  68  of  1^23. 

Mr  ,K.  Duraisami  lyengar,  for  the  Appel- 
lant 

Mtn  S.  Itangasami  lyengar,  for  the  Re* 
spondent. 

JUDGMENT.— In  this  case  the  facts 
are   as    follows,     The     defendant's    uncle, 
Muthuswami  Naicker,  put  up  the  building 
in  suit  48  years  ago,  on  the  roadside  land  in 
4he   Pantheon  Road,  for  the  purpose  of  sell- 
ing aerated  waters  and  ice,    l*he   building 
is  a    pueca  masonry  one  and   the  plaintiff, 
Corporation  of  Madras,  now  wishes  to  eject 
the  defendant,  to  whom   the  pioperty  was 
given  by  his  uncle  about  1^08    The  defend- 
ant obtained  lease  deeds  for  this  property 
in  3908,  1911  and  1914  for  a  period  of  three 
years  each.    At  the  end    of  the  lasfc   lease, 
the  Corporation  proposed  to   sell  the  right 
to   occupy  the  building  and  site  at  auction 
and  notice  was  issued  on  18th  April  1917; 
(Ex.  IV).    The  defendant  protested  against 
this  by  a  Lawyer's  notice  (Ex,  II)  and  put 
in  a  petition  (Ex,  III)  on  3Uth  April  1917. 
As  a  result  of  this,  a  fresh  lease  for  one 
year  was  granted  to  the  defendant  and  this 
was  renewed  for  a  second  year  in  19 18  for 
the  year  1918  1919.    When  the  new  Muni- 
cipal Act  was  passed,  the  Corporation  seems 
to  have  thought  that  it  could  not   grant  a 
lease  of  the  suit  property  and  they   propos- 
ed to  auction  the    propeity    and  grant  a 
license.    On  21st  February   1919,  the  date 
of  the  auction,  no  bidders  turned  up.     On 
24th  February  1919  the  defendant  went  to 
the  Revenue  Officer  and  agreed  to  pay  a 
rent  of  Rs  3-8  0  per  mensem  in  respect  of 
the  suit  land,  and  on  14fch  July  1919    the 
Corporation  granted  him  the  lease  Ex.  Etl. 
On  17th  March  1920,  a  notice  was  issued  by 
the  Corporation,  that  the   right  of  putting 
up  a  bunk  on  the  suit  site  would  be  sold  by 
auction.    But,  as  a  matter  of  fact,  no  auction 
appears  to  have  taken  place,  and  on  9th 
October  1920  the  Corporation  issued  Ex,  F, 
which  purports  to  be  a  permit  under  s,  526 
(I),  Act  IV  of  1919.    Under  this  the  defend- 
ant  was  permitted  >to  occupy  the  suit  site 
-for  'the  purpose  of  keeping  ar*  ice  depot  fo? 
one  year,    A  similar  permit  was  issued  on 
4th  Angus 1 1921  for  the  year  ending  31st 


1054 


KttSAVALU  NAIdKBR  V.  CORPORATION  0? 


[92 1.  0.  in 6J 


March  1922.  On  2nd  March  1922,  the  Cor- 
poration again  proposed  to  auction  the 
site  and  then  finally  on  llth  November 
1922  the  Corporation  gave  a  notice  to  the 
defendant  to  quit.  The  defendant  replied 
stating  that  he  had  held  the  land  for  a  very 
long  period  and  that  he  was  entitled  to 
compensation  under  the  City  Tenants1  Pro- 
tection Act, 

The  main  question  for  consideration  here 
is,  whether  the  defendant  is  a  tenant  within 
the  meaning  of  the  Madras  City  Tenants1 
Protection  Act.  The  learned  City  Civil 
Judge  has  found  that  he  was  not  a  tenant 
but  merely  a  licensee.  We  see  that  upto 
31st  March  1920,  the  defendant  had  been 
obtaining  leases  from  the  Corporation  for 
the  use  of  the  site  and  was  undoubtedly 
up  to  that  time  a  tenant.  It  is  suggested 
that  for  the  year  1920  the  Corporation  haH  no 
power  to  grant  a  lease  of  the  suit  land  as  it 
comes  within  the  definition  of  public  street 
contained  in  the  Act.  Such  public  streets 
are  vested  in  the  Corporation  and  although 
the  Corporation  has  not  the  full  ownership 
in  them,  yet  they  have  a  certain  proprietary 
right  in  the  soil,  and  this  has  been  recog- 
nised in  Sundaram  Aiyar  v.  Municipal 
Council  of  Madura  and  the  Secretary  of 
State  for  India  in  Couucil  (1)  in  which  it 
was  held  that  the  Corporation  had  a  cer- 
tain proprietary  right  in  the  soil  of  public 
streets.  Under  the  new  Municipal  Act  of 
1919,  the  Corporation  is  authorised  to  lease 
any  Corporation  immoveable  property  and 
if  the  Corporation  has  a  proprietary  right 
in  public  streets  to  the  extent  of  that  right 
it  can  grant  a  lease,  and  even,  if  it  had  no 
right  to  grant  a  lease  I  do  not  think  the 
Corporation  can  now  contend  that  the  lease 
actually  granted  by  them  in  1919  was  void 
as  being  prohibited  by  law.  Uptil  March 
1920  therefore,  the  defendant  was  a  tenant. 
But  it  is  contended  for  the  respondents  that 
by  the  mere  fact  of  his  accepting  Exs.  F 
and  Q  the  permits  under  s.  226  (1)  he  be- 
came a  mere  licensee.  When  we  turn  to  s. 
226  (1)  we  find  that  it  deals  with  persons 
making  holes  and  causing  obstruction  in 
the  street,  and  provides  that  persons  are 
forbidden  to  make  holes  or  cause  any 
obstruction  in  any  street  unless  the  consent 
of  the  Commissioner  is  obtained.  Clause  (2) 
prescribes  that,  when  such  permission  is 
granted,  such  persons  shall  cause  such 
jbofea  or  obstruction  to  be  sufficiently  bar- 
red and  enclosed  and  shall  cause  such  hole 


or  obstruction  to  be  sufficiently  lighted  dur- 
ing the  light.  It  is  not  suggested  that  the 
plaintiff's  building  was  in  any  sense  an 
obstruction  to  the  street  and  the  idea  of 
allowing  him  to  occupy  it  for  the  purpose 
of  keeping  an  ice  depot  from  year  to  year 
has  no  connection  with  the  provisions  of 
s.  226.  Section  226  deals  with  the  tempor- 
ary obstructions,  which  would  be  an  offence 
unless  permission  is  granted  for  making 
them.  It  has  nothing  whatever  to  do  with 
giving  licenses  for  keeping  an  ice  depot. 
The  defendant  never  even  expressed  his 
consent  to  be  a  licensee.  He  and  his  pre- 
decessor had  been  tenants  of  the  Corpora- 
tion for  over  40  years  and  the  mere  fact 
that  these  extraordinary  permits  were  issu- 
ed to  him  and  were  not  refused,  cannot 
convert  that  tenancy  into  a  holding  by  mere 
license.  In  the  absence  of  evidence  tLat 
the  defendant  agreed  to  be  a  mere  licensee, 
I  think  that  the  mere  issue  of  licenses 
would  not  be  sufficient  material  to  raise  a 
presumption  of  a  change  in  the  nature  of 
his  possession,  which  had  for  many  years 
been  that  oi  a  tenant.  The  present  case, 
where  the  license  is  obviously  a  license 
which  the  Corporation  has  no  pawer  to  issue 
in  such  form  and  in  the  circumstances  that 
existed,  is  much  stronger  and  the  defendant 
must  be  deemed  to  have  been  holding  on 
as  a  tenant  after  expiry  of  his  last  lease. 
Even  on  10th  April  1920  he  was  treated  by 
the  Tahsildar  as  a  tenant  of  the  Corpora- 
tion. No  attempt  was  made  to  disturb  his 
possession  and  his  possession  has  all  along 
been  of  the  same  nature.  Whenever  any 
change  was  proposed  to  be  made,  the  de- 
fendant has  protested  and  no  change  has 
actually  been  made  in  the  nature  of  his  pos- 
session. The  question  then  arises  whether 
the  defendant  is  a  tenant  within  the  mean- 
ing of  s.  2,  cl.  (4)  of  Act  III  of  1922.  That 
clause  reads  as  follows: — 

14  'Tenant'  means  tenant  of  land  liable  to 
pay  rent  on  it,  every  other  person  deriving 
title  from  him,  and  includes  persons  who 
continue  in  possession  after  the  termination 
of  the  tenancy".  The  defendant  certainly 
would  seem  to  come  within  the  definition. 
It  is,  however,  argued  that  in  order  to  under- 
stand this  definition,  which  is  not  in  itself 
ambiguous,  one  must  refer  to  the  preamble 
of  the  Act  which  says:  "Whereas  it  is  neces- 
sary to  give  protection  to  tenants  who... have 
constructed  buildings  on  others1  lands  in 
the  hope  that  they  would  not  be  evicted  so 
lorg  PB  1fcey  py  a  fair  rent'1,  Tbo  xult  of 


POORANALTNQAM  8ERVAI  t>.  VEEftAVI. 


[92 1.  0. 1926J 

construction  is  that  the  preamble  of  the 
Act  may  be  referred  to  in  a  case  of  am- 
biguity or  where  it  is  necessary  to  interpret 
the  Act  itself  so  as  to  give  effect  to  its  pur- 
port, but  it  is  doubtful  whether  the  mean- 
ing of  definite  and  unambiguous  words  can 
be  strained  because  their  natural  interpreta- 
tion would  eeem  to  extend  the~alleged  scope 
of  the  Act.  In  any  case  I  do  not  think, 
that  in  the  present  instance  it  can  be  said 
that  the  Act  does  not  refer  to  persons  in  the 

Sosition  of  the  defendant    Nor  am  I  eatis- 
ed  that  the    defendant's  position  is  not 
that  contemplated  by  the  preamble.    It  is 
difficult  now  to  adduce  evidence  that  the 
person  who  constructed  the  suit   building 
48  years  ago  did  so    in    the  hope  that  he 
would  not  be  evicted.    The  oral  evidence 
of  the  actual  builder  to    that  effect    would 
not  be  or  much  value  when  given  for  the 
purposes  of  such  a  suit  as  this,  but  I    think, 
that,  when  a  man  has  spent  a   considerable 
ftum  of  money  in  erecting   a  pucca  masonry 
building  on  another's  land  there  is  a  legiti- 
mate inference  to  be  drawn,  that  he  did  so 
in  the  hope  that  he  would  not  be  evicted,  an 
inference,    which  may  be  rebutted  by  other 
circumstances,  which  show  that  he   could 
not  have  had  such  a  hope.    In  the  present 
case  there  is  something  rather  more  than  a 
mere  inference,  for,  as  the   learned  Judge 
points  out,  "the  defendant's  predecessor-in- 
title  apparently  ventured  upon  a  brick-built 
structure,  in  view  of  the  favour  that  he  then 
enjoyed  from   very  high  officials  who  got 
ice  from  him".    If  he  enjoyed    the  favour 
of  high  officials  (possibly  officials    in  the 
employ  of  the   plaintiff  Corporation)  it  is 
difficult  to  suppose,  that     he   spent     his 
money  without  hoping  that  he  would  be 
allowed  to  reap  the  benefit  of  the  expendi- 
ture.   In  that  view    the    defendant  would 
come  within  the  meaning  of  the  Act.    It 
is  argued  that  if  the  provisions  of  the  Act 
are  applied  literally,  the  scope  of  the  Act 
would  be  very  materially  widened  beyond 
that  expressed  in  the  preamble.    This  may 
be  so,  but  when  the  Legislature    passes  an 
enactment,  its  provisions  must  be  looked  to 
rather  than  the  intention  of  the  Legislature, 
as  revealed  in  the  discussion  which  preced- 
ed the  passing  of  the  Act.    Construing  the 
Act  as  it  stands,  I  must  hold  that  the  de- 
fendant is  a  tenant  within  the  meaning  of 
the  Act  and  consequently  under  s.  3,  is  en- 
titled on  ejectment  to  be  paid  compensa- 
tion for  his  building.    He  did  make  an 
application  under  s,  6  but  that  is  not  prees- 


1055 


ed.  This  is  intelligible  when  we  remember 
that  the  plaintiff  Corporation  is  not  the 
absolute  owner  of  the  plaint  site  and  con- 
sequently what  the  defendant  could  pur- 
chase under  s.  9  is  only  the  limited  interest 
of  his  landlord.  The  suit  will  have  to  be  re- 
mitted to  the  lower  Court  for  investigation 
as  to  the  value  of  defendant's  superstructure 
and  when,  that  has  been  determined,  the 
decree  will  have  to  be  modified  by  award- 
ing that  amount  to  the  defendant  as  com- 
pensation. A  finding  as  to  the  amount  of 
compensation  payable  to  be  submitted  with- 
in three  weeks.  Objections  seven  days.  The 
defendant  will  have  his  costs  of  this  appeal 
and  the  costs  of  the  lower  Court  will  be 
provided  for  in  the  revised  decree. 

In  compliance  of  the  above  order  the  City 
Civil  Judge,  Madras, submitted  the  following 

FINDING:— 

*  *  *  * 

I  submit  a  report  to  the  effect  that  the 
structure  put  by  the  defendant  on  public 
Municipal  land  is  worth  Rs.  468-15-0  and 
that  he  is  entitled  to  compensation  at  that 

rate  before  is  evicted  by  the  plaintiff. 
******** 

JUDGMENT.— The  petitioner  is  not 
entitled  to  rental  value  but  only  to  the 
value  of  the  building.  The  finding  that  it 
is  worth  Rs.  465-15-0  is,  therefore,  accepted 
and  plaintiff  will  have  a  decree  for  posses- 
sion  of  the  land  and  superstructure  on  pay- 
ment of  this  amount  less  the  annual  rental 
due  by  defendant  uptp  date  of  delivering 
possession.  Each  side  will  bear  his  own 
costs  in  the  lower  Court.  The  time  for  de- 
livery ia  one  month. 

v.  N.  v.  Plaintiff's  claim  decreed. 

N.  H. 

MADRAS  HIGH  COURT. 

SECOND  CIVIL  APPEAL  No.  265  OP  1923. 

August  17,  1925. 

Present:— Mr.  Justice  Phillips 

POORANALINGAM   SERVAI— PLAINTIFF 

— APPELLANT 

versus 

VEEEAYI  AND  OTHERS— DEFENDANTS  — 

RESPONDENTS. 

Co-purchasers— Excess  price  paid  by  one— Possession 
suit  for ,by  ol her— Decree  conditional  on  payment  of 
balance  due—Court,  jurisdiction  of.  * 

If  one  of  two  co-purchasers  of  a  property  has  paid 
more  than  his  portion  of  the  purchase-money  the' 
Court,  in  a  suit  for  possession  of  his  share  by  tne 
other  purchaser,  can  order  that  he  must  pay  hi. 
portion  of  the  purchase-money  in  default 
recovering  powesslon, 


1056 

f 


o/  Visnanagram  v,  Rajah  Setrucherla 
2$  M.  686*  13  if.'L.  J.  83,  followed. 

appeal  against  a  decree  of  the 
Court  of  the  Subordinate  Judge,  Siva- 
gajiga,  In  A.  8.  No.  60  of  1921,  (A,  8  No.  987 
on  the  file  of  the  'District  Court, 
presented  against  that  of  the 
Court  of  the  Principal  District  Munsif, 
Manamadura,  in  O  8.  No.  367  of  1919. 

•Mr.  A.  V.  Narayanaswami  lyer^  for  the 
Appellant. 

41n  K.   V.  Sesha  lyengar,    for  the    Re- 
spondents. 


JUDGMENT.—  In  this  case  the  first 
defendant  and  second  defendant  jointly 
purchased  the  suit  property,  the  first 
defendant  paying  Rs.,  34.  U,  and  the  second 
defendant  Rs.  60,  the  understanding  being 
that  each  was  to  have  half  the  property 
and  the  excess  money  paid  by  the  first 
defendant  was  on  benalf  o£  the  second 
defendant  and  re-payable  by  him.  The 
first;  defendant  subsequently  redeemed  a 
usufructuary  mortgage  on  the  land  and  paid 
th^  whole  of  the  mortgage-money  and  took 
possession.  Just  prior  to  this  redemption, 
thet^laintiff  bougfit  the  second  defendant's 
share  in  the  property  and  now  brings  this 
suit  for  redemption  of  his  share  o£  th'e 
usufructuary  mortgage  and  •  for  partition, 
antl  for  delivery  of  possession  of  his  sepa- 
rate share, 

The  second  appeal  has  beea  argued  at 
very  great  length  on  the  assumption  that 
thp  is  a  pure  redemption  suit,  but  this 
overlooks  the  fact  that  i,t  is  in  effect  and 
iri-ftame  a  partition  suit,  for  the  plaintiff 
seeks  to  recover  a  demarcated  half  share 
of  ^the  suit  property.  The  t  lower  Courts 
have  ordered  the  ^plaintiff  before  getting 
possession  of  his  half  share  to  pay  to  the 
first  defendant  Rs.  140  the  purchase-money 
paid  by  her  ,on  behalf  of  the  second 
defendant.  There  can  be  no  doubt  that  in 
a  partition  suit  all  equities  between  the 
members  of  the  co-parcenary  should  be 
worked  out  allotting  to  each  member  the 
share  to  which  he  is  equitably  entitled.  It 
is  argued  for  the  appellant  that  this  princi- 
ple is  only  applicable  to  the  Hindu  Law  of 
partitions  and  that  under  any  other  laF 
these  equities  cannot  be  enforced  but  no 
reasons  are  assigned  for  drawing  such  #. 
distinction.  We  certainly  have  the  authori- 
ty of  an  American  Writer  (Freeman  on  Co- 
tetiancy  and  Partition)  that  such  equities 
should  be  adjusted.  This  seems  to  be  only 
reasonable  and  in  accordance  with  what  is 


FOORANALf N0AM  6E&VAI  V.  VBBRA7I  [92  I,  € 

right  and  proper.  Fr66ihaii  ait  'psige  675 
mentions  the  very  same  equity  as  is  in'  di^- 
pute  here.  The  passage  runs  : — • 

"If  one  of  the  co4etfants   has  advanced 

more  than  Ms  ptoportlon  of  the  purchase- 
money,  the  Court  may  decree1  that  'payment 
of  the  excess  be  made1-  to  him,  and  in 
default  of  such  payment,  that -the  xnoiety  of 
the  tenant  in  default  may  be  sold  to  satisfy 
the  amount  equitably  due  from  it."  '  * 
No  English  cases  on  the  poirit  liafe  Tbeeii 
cited,  but  I  may  refer  to  the  case  in  Rajah 
of  Vizianagram  v.  Rajah  Setrucherla  Stnnd- 
sekhararaz  (1).  There  it  was  held  that 
where  a  tenant  paid  the  public  revenue 
oa  the  land,  he  was  entitled  to  a  charge 
for  that  amount  against  his  co-owner.  At 
page  703*,  there  is  the  following  passage  :— 
"  But  when  once  the  right  of  contribution 
is  established,  as  in  tha  present  case,  it 
certainly  cannot  be  an  inequitable  or  violent 
stretch  of  such  right  to  make  it  a  Charge 
against  the  co-owner's  share* '.  Even  if  there 
is  no  legal  charge  in  the  present  case,  y'eto'n 
equitable  principles  such  a  charge  can 
bet  enforced  and  wheft  it  comes  to'  partition- 
ing the  property  between:  two  co-tenafits 
this  >equity  should,  in  my  opinion,  tie  en- 
forced. On  this  ground  alone,  I  think  the 
.  second  appeal  must  fail  and,  therefbre,  I 
do  -not  propose  to  discuss  the  various 
arguments  put  forward  on  the  footing  that 
this  is  a  mere  suit  for  redemption. 

Another  point  has  been  raised,  namely, 
that  the  first  defendant  is  not  entitled 
to  interest  on  the  Rs.  140,  The  lower 
Courts  have  awarded  interest  from  the  date 
of  payment  until  the  date  of  the  decree. 
This,  I  think,  is  wrong.  The  plaintiff  ha& 
not  been  allowed  mesne  profits,  because  the 
first  defendant  had  paid  the  whole  of  the' 
money  due  on  the  usufructuary  mortgage, 
but  from  the  date  the  first  defendant  got 
into  possession,  the  purchase-moftey  ot 
Rs.  140  cannot  bear  interest;  for'  she  has,  in 
lieu  of  interest,  had  possession  of  the  lancjl. 
Until  that  date  the  fir^t  defendant  "has 
certainly  suffered  damages  in  having  had 
to  pay  the  excess  amount  of  the  purchase- 
money  and  on  that  ground,  I  think,  She  is 
entitled  to  interest.  The  interest  from  22nd 
July  1918  to  16th  June' 1920  is,  therefore, 
disallowed,  Subject  to  this  modification^ 
the  second  appeal  is  dismissed  with  costs, 

V.  K7,  V,  '  '          ' 

<   N,  >H.  .  Appeal  dismissed. 

(1)  26  M.  686;  13  M.  L,  Jr83,  ' 


END  OF  VOLUME  92, 


GENERAL  INDEX. 

VOLUME  92-1926. 


Abatement  of  appeals  and  suits.  See  0,  P,  0,, 

1908,  0  XXII, 

Abkarl   license— Prohibition  to    transfer    and    to 
sub-let    See  CONTRACT  ACT,  1872,  s,  23  112 

Acknowledgment  ^LIMITATION  ACT,  1908,  s  19 

626 

• ,  mateml  alteration  in,    See  DOCUMENT    305 

Acquiescence,  fraudulent    See  Etromi         1017 
Acts— General. 

Act  mO-XXXII.    See  IN  MUST  ACT 

1856— IX     See  BILLS  OF  LADINU  ACT 

1860-XLV    See  PENAL  CODL 

1861— V    See  POLICK  ACT 

—  1863— XX.    See  RELIGIOUS  ENDOWMENTS  ACT 
— -  1865 -X    See  SUCCESSION  ACT 

1870-VII    See  COURT  FEES  ACT 

1871—1    See  CATTLK  TRESPASS  ACT 

1871— IX    See  LIMITATION  ACT. 

1872—1    See  EVIDENCE  ACT, 

1872— IX.   See  CONTRACT  ACT, 

1873— X.    See  OATHS  ACT, 

1877— I.   See  SPECIFIC  RELIEF  ACT> 

1878— XL    See  ARMS  ACT, 

1*79-  XVIIL   See  LEGAL  PRACTITIONERS  ACT, 

1881— XXVI.   See  NEGOTIABLE  INSTRUMENTS  ACT* 

1882-11    See  TRUSTS  ACT, 

1882— IV.   See  TRANSFER  OF  PROPERTY  ACT, 

1882— V.   See  KASEMBNTS  ACT, 

1886  -II.    See  INCOME  TAX  Acr 

1887— VII.   See  Sum  VALUATION  ACT, 

— —  1887— IX.   See  PROVINCIAL  SMALL  CAUSE  COURTS 
ACT. 

—  1889— VII,    See  SUCCESSION  CERTIFICATE  ACT, 

1890— VIII,    See  GUARDIANS  AND  WARDS  ACT, 

— -  1890— IX.    See  RAILWAYS  ACT. 

"*--  1894—1.    See  LAND  ACQUISITION  ACT, 

1897— IX    See  PROVIDENT  FUNDS  ACT. 

— -  1897— X.   See  GENERAL  CLAUSES  Aor. 
— -  1898— V.   See  CRIMINAL  PROCEDURE  CODB, 
- — 1899-11,   See  STAMP  ACT 

—  1908-V,   See  CIVIL  PROCEDURE  CODB. 
-* —  1908— IX.   See  LIMITATION  ACT. 
1908— XVI.   See  REGISTRATION  ACT, 

— —  1909— III.   See  PRESIDENCY  TOWNS  INSOLYINCY 

ACT 

- —  1910— II,  See  PAPER  CURRENCY  ACT. 
1910— XV.  See  CANTONMENTS  ACT. 

—  1911—11.   See  PATENT  DESIGNS  ACT, 
*~  1913- VII.   See  COMPANIES  ACT, 
—-  191 9- X.   See  USURIOUS  LOANS  ACT. 

— —  1920— V.   See  PROVINCIAL  INSOLVENCY  ACT. 
— -  1920— XXVL   See  LIMITATION  AND  CODE  OF  CIVIL. 
PROCEDURE  (AMENDMENT)  ACT. 

—  1922-XI.   See  IKCOMB  TAX  Act, 

*~—  1983— XI,  See  RBWUIING  AN»  Atttftix*  ACT, 


Acts— Bengal, 

Act  1880-IX,    See  CESS  ACT. 

1885—1    See  BENGAL  FERRIES  ACT. 

1885— VIII.    See  BENGAL  TENANCY  ACT. 

1887— XII.    See  BENGAL,  N  W   P.  AND  ASSAM 

CIVIL  COURTS  ACT, 

1910— IV.    See  BENGAL  CESS  (AMENDMENT)  ACT. 

1920-I1L    See  CALCUTTA  RENT  ACT 

Acts— Bombay. 

- — •  1874—111    See  BOMBAY  HEREDITARY  OmcEs  ACT. 
1876— X,    See    BOMBAY    KEVENUB    JURISDICTION 

ACT 

]878— V    See  BOMBAY  ABKARI  ACT 

1879— XVII,       See   DEKKHAN    AGRICULTURIST*' 

RELIEF  ACT 

1880—1    See  BOMBAY  KHOTI  SETTLEMENT  ACT, 

1901— III    See  BOMBAY  DISTRICT  MUNICIPAL  ACT. 

—  1924— VI    See  KARACHI  PORT  TRUST  (AMENDMENT) 

ACT. 

Acts—Burma. 

1907— VI.    See  BURMA  VILLAGE  ACT. 

1920-11    See  RANGOON  RENT  ACT. 

1922— VI,    See  CITY  OF  RANGOON  MUNICIPAL  ACT*, 

Acts-C,  P. 

1898-XI    See  C  P.  TENANCY  ACT, 

1903-XVI    See  C.  P  MUNICIPAL  ACT. 

1917— IL   See  C  P.  L\ND  REVE\UB  ACT. 

1920—1.    See  C.  P  TENANCY  ACT. 

Acts— Madras. 

—  1881— V.   See  MADRAS  DISTRICT  MUNICIPALITIES 

ACT. 

—  1889—1    See  MADRAS  VILLAGE  COURTS  ACT, 

1897— IV.   See  MADRAS  SURVEY  AND  BOUNDARIES 

ACT, 

1908— I.    See  MADRAS  ESTATES  LAND  ACT. 

1919— IV,    See  MADRAS  CITY  MUNICIPAL  ACT. 

—  1920— V.  See  MADRAS  DISTRICT  MUNICIPALITTBI 

ACT* 
1920-  XIV,    See  MADRAS  LOCAL  BOARDS  ACT. 

—  1922— III,   See  MADRAS  CITY  TENANTS'  PROTECTION 

ACT. 

Acts— Punjab. 

—  1887— XVI.   See  PUNJAB  TENANCY  ACT. 

1887— XVII.    See  PUN  JAB  LAND  REVENUE  ACT* 

— -  1911— III.   See  PUNJAB  MUNICIPAL  ACT. 

1912— V.     See    COLONIZATION   OF    QovfiRNMBKt 

LANDS  (PUNJAB)  ACT. 

« —  1913—1.   See  PUNJAB  PRE-EMPTION  ACT. 
^ —  1918— VI.   See  PUNJAB  COURTS  ACT. 
> —  1920-1,  See  PUNJAB  LIMITATION  (GusiOMj  Act; 


1658 


N  CASES, 


Acts-U.  P. 

Act  1876— XVIII.    See  OUDH  LAWS  ACT. 
1901—11.    See  AGRA  TENANCY  ACT. 

1901— III.    See  U.  P  LAND  REVENUE  ACT. 

1934—1     See  U  P.  GENERAL  GLAUSES  ACT. 

1910— IV.    See  U.  P.  EXCISE  ACT. 

• 1916—11.    See  U.  P.  MUNICIPALITIES  ACT. 

1920— VI     tfeeU  P.  VILLAGE  PANCHAYAT  ACT 

• 1922- XI     See  AGRA  PRE-EMPTION  ACT 

. 1925— IV,    See  OUDH  COURTS  ACT. 

Regulations. 

Reg,  1793— XX VU.    See  BENGAL  REGULATION 

1806— XVII,  See  BENGAL  LAMB   REDEMPTION  AND 

FORECLOSURE  REGULATION' 

~~  1819— VIII.    See  BENGAL  PATNI  TALUKS  REGULA- 
TION. 

Statute. 

1915-(5  &  6  Gm  V,  c.  01).    See  GOVERNMENT  OF  INDIA 

Aden,  orders  of  Resident  at.    See  C.  P.  0.,  1908, 8  115 

367 
Adverse  possession.    See  ALSO   LIMITATION   ACT, 

1908,  Sen  I.ART.  144. 
_____ —  during  tenure  of  life-tenant    Sec  LIMITATION 

ACT,  1908,  SCH  I,  ART  134  63 
Co-sharers—  Ouster 

In  the  case  of  co-owners  the  possession  of  one  fo 
owner  is  m  law  the  possession  of  the  other  co-owners 
as  well,  and  it  is  not  possible  for  one  co-owner  to 
put  an  end  to  that  possession  by  any  secret  intention 
in  his  mmd  Nothing  suoit  ot  ouster  or  something 
equivalent  to  ouster  can  bring  about  that  redult 

1? n«  fact  that  a  eo-shaier  has  been  m  exclusive 
possession  of  the  joint  house  and  has  been  making 
repairs  to  it,  is  not  enough  to  constitute  ouster. 

A  co-sharer  has  a  right  to  repair  the  whole  of  the 
house,  and,  if  he  does  so,  his  act  cannot  be  considered 
to  be  an  act  of  such  an  hostile  character  that  it  may 
be  considered  as  equivalent  to  a  denial  on  his  part  of 
the  title  of  the  other  co-owner  or  co-owners  0 
MAHADEO  PRASHAD  v  RAM  PHAL,  3  0.  W.  N,  1H6,  13  0. 
L.  J.  55;  A  1.  K.  1926  Oudh  258  685 
Mortgage,  redemption  of —Widow  of  mortgagee 

retaining    po>tt3non — Lawful      origin — Nature    of 

widow*s  possession. 

M%ere  after  the  redemption  of  a  mortgage  the  mort- 
gagee retains  possession  of  the  mortgaged  property 
and,  after  his  death,  his  widow  comes  to  occupy  the 
said  property  to  the  exclusion  of  the  rightful  heirs  of 
her  husband  as  well  as  the  mortgagor,  the  possession 
of  the  widow  cannot  be  referred  to  a  lawful  origin 
and  is  adverse  to  the  mortgagor  and,  m  case  it  ex- 
tends beyond  twelve  years,  will  ripen  into  ownership. 
A  RAM  KUBR  v.  GOVIND  RAM,  A.  I  R.  1926  All.  62;  48 
A.  145  414 
•  Mortgagor  and  mortgagee— Acquiescence. 

As  between  the  mortgagor  and  the  mortgagee 
neither  exclusive  possession  by  the  mortgagee  for  any 
length  of  time  short  of  the  statutory  period  of  sixty 
years,  nor  any  acquiescence  by  the  mortgagor  not 
amounting  to  a  release  of  the  equity  of  redemption, 
will  be  a  bar  or  defence  to  a  suit  for  redemption  if  the 
parties  are  otherwise  entitled  to  redeem.  O  BAJRANO 
BALI  v.  MAHRAJIA  832 

»  -   ••'  Occupancy  rights. 

Occupancy  rights  can  be  the  subject  of  adverse  pos- 
session. OjSHEONANDAN  V,  HlBA  LAL,  IS  0.  L.  J.  6; 

A,  1  &  m6  Oudh  2*6  247 

•*«•"  "  Possession  undtr  invalid   title— Co*9harer$— 
Realization  of  rent  by  one  co~9harer. 


Adverse  possession- conoid. 

If  possession  is  acquired  by  a  person  under  an  in- 
valid title  and  he  continues  to  remain  in  possession 
for  more  than  12  years,  although  the  document  relating 
to  his  title  may  bo  invalid  for  want  of  legistration 
or  any  other  ground,  yet  the  possession  having  lasted 
for  more  than  12  years  the  title  becomes  an  unassail- 
able one 

Therefore,  where  a  party  originally  enters  into 
possession  under  an  unregistered  sale-deed,  the  defect 
in  his  title  is  cuied  by  his  having  been  in  possession 
for  over  12  years. 

If  a  co-sharer  has  been  in  possession  of  a  particular 
land,  his  possession  cannot  be  considered  adverse 
against  the  other  co-sharers,  and  his  possession  must 
be  deemed  to  be  on  behalf  of  them  all  In  older  to 
establish  adverse  possession  in  such  a  case  a  co-shtrer 
has  to  establish  that  he  expressly  denied  the  title  of 
the  other  co-sharers  and  remained  in  possession  after 
such  denial  for  over  12  years 

Therefore,  the  mere  fact  that  a  co-sharer  has  been 
realizing  rents  of  certain  plots  of  land  in  which  he  is 
a  co-sharer,  would  not  establish  that  he  has  been  in 
adverse  possession  eo  as  to  extinguish  the  title  of  the 
other  co-shaiers  O  MATUPAL  SINUH  v.  I^AKJOO  PKASAD, 
3  O  W  N  10  ),  A  I  R  1020  Oudh  141  99 
Sweeping  land}  effect  of. 

The  act  of  sweeping  a  piece  of  land  occasionally 
docs  not  amount  to  adverse  possession  againbt  the 
truo  ouncr.  M  MUNICIPAL  COUNCIL,  COCHINS  PRATATH 
BA\  UPE\  uost,  22  L  W  671,  A  I  R.  1926  Mad  235  18 
Advocate,  position  and  duties  of,  See  PENAL  CODE, 

1860,8  4J»9,  KXCEP.  9  737 

Agra  I  re  emption  Act  (XI  of  1922),  s,  12  (3)~ 

Persoti  '  claiming  pre-emption"  meaning  of — Vendee, 

or  intended  vendee,  whether  included 

The  vendee,  or  proposed  vendee,  or  contemplated 
vendee,  or  intended  vendee,  is  a  person  "claiming  pre- 
emption" within  the  meaning  of  the  clause  "more 
pei  sons  than  one  of  the  same  class  claiming  pre- 
emption"*in  s  12  (3)  of  the  Agra  Pie-emption  Act. 

The  ordinary  meaning  of  "to  pie-empt"  is  to  pur- 
chase in  pi  eference  toothers,  that  is  to  say,  even  of 
the  whole  world,  and  pre-emption  is  the  effect  of  the 
purchase  The  vendee,  if  he  is  successful  in  the  end 
over  other  competitors,  does  in  fact  pre-empt  and  is, 
therefore,  properly  spoken  of  as  a  person  claiming 
pre-emption.  A  JAQRUP  SINGH  v.  INDBASAN  PANDE,  24 
A.  L.  J.  325;  A.  I  R.  1926  All.  216  1 

Agra  Tenancy  Act  (II  of  1901),  88.4  (5),  167, 

SCh.   IV,  Item  29— Suit  to  eject  lessee  of  grove— 

Jurisdiction  of  Civil  and  Revenue  Courts. 

A  suit  to  eject  the  lessee    of  a  giove    who  has  been 

paying  a  portion  of  the  produce  of  the  grove-   as  rent, 

is  a  suit    to  eject   a  tenant    and    is  cognizable    by  a 

Revenue  and  not  by  a  Civil  Court.    A  Itf  AHABAJ  DIN  vt 

BHAIRON,  A.  1.  R,  1926  AIL  220  .  473 

88.  150,  167,    See  LANDLORD  AND  TENANT 

-  134 

. 8. 1 6  5  -  A  ccount ,  suit  /or,  against  co-shar  er 

—Claim  for  rent,  whether  can  be  joined. 
A  co-sharer,  m  a  suit  for  an  account  brought,under 
8, 165  of  the  Agra  Tenancy  Act  ,against  another  co- 
sharer,  cannot  join  a  claim  in  respect  of  a  separate 
matter  altogether,  namely,  for  rent.  A  KHBM  KAJUN 
DAS  v.  BALDEO  SINQH,  A,  L  R,  1926  All.  282  1046 

. 88.  175, 177  -Letters  Patent  (All),  cL  11— 

Civil  Procedure  Code  (Act  V  of  1908),  e,  116— Revenu* 
apptal— District  Judge,  order  of— Appeal— 


Vol.  92] 


GENERAL  INDEX. 


1050 


Agra  Tenancy  Act— concld. 

No  appeal  lies  to  the  High  Court  from  au  order,  as 
apart  from  a  decree,  of  the  District  Judge  passed  on 
appeal  from  a  Revenue  Couit  under  a  177  of  the  Agra 
Tenancy  Act 

Nor  is  an  appeal  competent  in  such  a  case  as  the 
above  under  cl  11  of  the  Letters  Patent  of  the 
Allahabad  High  Court 

Obiter. — The  High  Court  has  po^er  to  enteitaina 
revision  of  an  older  passed  by  a  District  Judge  under 
s,  177  of  the  Agra  Tenancy    Act     A   KEHRI  SINOII  v. 
THIRPAL,  L  R  6  A.  213  Rev  ,  23  A    L   J    IG5,  A  I  R 
1926  All  113,  48  A  104  282 

88.  175,  182— District  Judge,    otder  of  — 

Appeal,  third)  to  High  Court>  whethei  lies 
Section  182  of  the  Agra  Tenancy  Act  only  allots  a 
second    appeal  to    the  High  Couit    and  nut    a    thud 
appeal 

Therefore,  no  appeal  lies  to  the  High  Court  fiom  an 
ordei  pasted  by  the  District  Judge  on  nil  appeal  fiom 
an  appellate  order  of  a  Collector  A  KALKA  PRASAD  v 
PANNA,  A.  I  R  1926  All.  233  3 

3,  198— Tenant  and   sab-tenant    Ejectment 

suit— 8  ub-tL  riant  claiming  to  b?  tenant  lumsdf —Pro- 
prietary title,  question  of,  whether  involved— Appeal, 
forum  of 

In  a  suit  by  an  occupancy  tenant  to  eject  a  sub- 
tenant, where  the  lattei  alleges  that  he  is  lum&elf  the 
tenant-m-chief  and  is  holding  dnectly  under  the  pio- 
prietor,  110  question  of  propnetaiy  title  is  involved 
within  s.  li)8  of  the  A#id  Tenancy  Act,  and  mi  appeal 
against  the  decision  of  the  Assistant  Collector  lies  to 
the  Revenue  Court  and  not  to  the  Civil  Court 

Thewoids  "land-holder"  and  "tenant"  do  not  in 
8.  198  (Dot  the  Agra  Tenancy  Act  embrace  "tenant" 
and  his  "sub-tenant " 

Per  Boys,  J  —There  is  nothing  m  the  heading  pre- 
ceding s  198  of  the  Agra  Tenancy  Act  or  in  s  198 
(1)  to  indicate  that  in  a  case  coming  within  s  198  (1) 
a  question  of  proprietary  title  is  necessarily  in  issue. 
Rather  are  all  the  indications  to  the  contrary,  The 
answer  to  the  question  whether  a  matter  of  proprietary 
title  is  in  issue  cannot  be  based  on  any  conclusion 
that  the  case  is  or  is  not  within  s  198  but  must  be 
answered  independently  of  s  198  A  BALDEO  KURMI  v. 
KASHI  CHAMAR,  24  A,  L.  J.  337,  A.  1.  R  1926  All  312 

995 

Amendment  of  plaint.   Set  0  P,  0,1908,  0  vi, 
R  17  599 

Appeal  (Civil)- 
See,  (i)  C,  P.  C,,  1908,  ss  96  TO  112,  0  XLI,  0  XL1II, 

0.  XLV. 
(ii)  LETTERS  PATENT  OF  THE  Hicm  COVKTB  -SUCTIONS 

BBLATINO  TO  APPEALS 

•    '          Decree  \n  favour  of  appellant,  when 

can  be  set  aside. 

Where  a  suit  is  partially  decreed,  and  the  plaintiff 
flies  an  appeal  against  that  portion  of  the  decree  by 
which  his  suit  has  been  dismissed,  the  Appellate 
Court  has  no  power  to  set  aside  the  decree  granted  in 
favour  of  the  plaintiff  in  the  absence  of  an  appeal  or 
cross-objection  by  the  defendant  N  MAROTRAO  v. 
MUNICIPAL  COMMITTEE,  NAGPUR,  A.  L  R.  1926  Kag.  281 

796 
Deficiency  in  Court-fee  not  made  good 

— Negligence — Limitation,  effect  on. 

Where  a  memorandum  of  appeal  does  not  bear  the 
fall  Court-fee  and  the  deficiency  is  not  made  good  in 
time  owing  to  the  gross  negligence  of  the  appellant  or 
ki«  Counsel  the  appeal  becomes  time-barred,  L  PURAM 
CHANDV,  EHPEROR  991 


Appeal  (Civil)— concld. 


•  Dismissal  for 


default— Decree,    See 
496 


C  P  C ,  1908,  0  IX,  R,  8 
(Second), 

SeeC  P  C  ,  1908,  0,  XLI,  R.  27  661 

See  JURISDICTION  760 
Discretion  of  lower  Court— Inter- 

ference. 

No  intei ference  is  justified  in  second  appeal  with  a 
disci etion  exercised  by  the  lowei  Courts,  unless  it  is 
shown  that  the  discretion  was  exeicised  in  an  tm- 
leabunable  mannei.  O  KIPAR  NAIII  v  BHIKHAM  SINGH 

679 
— , Finding  of  fact — Question  for  trial 

not  understood,  effect  of 

A  finding  of  fact  camiut  be  disturbed  in  second 
appeal,  provided  the  facts  found  by  the  lower  Appel- 
l<tlo  Court  aie  relevant  and  the  finding  is  based  on 
evidence  pi opoi  for  C'onsideiahon 

It  is  not  necessary  that  the  whole  of  the  evidence 
given  in  the  case  should  Live  been  considered  in  the 
1cm  or  Appellate  Court  and  still  less  that  e\ei>  part 
of  it  should  have  been  mentioned  m  tho  judgment  ; 
inter feifiiee  is  not  justified.  b\  «.m  apparent  omission 
to  conoid ei  some/  material  part  01  c\enthc  main  part 
of  it  Where,  however,  tho  lower  Appellate  Court  has 
entirely  misunderstood  the  question  it  had  to  try,  its 
lindmg  cannot  be  upheld  in  second  appeal  N  TUKA- 
RVMI  CiiiMARAM,  20  N  L  11  17,  A  1  R  1924  Nag. 
91  327 
Mala  fides,  whether  que&twn  of  fact— 

Interference  by  Hiyh  Court 

A  finding  that  a  ceitain  action  of  a  Municipality 
was  prompted  by  mala  /ic/es  is  a  lindmg  of  faU,  and 
cannot  be  questioned  in  second  appeal  L  MUNICIPAL 
COMMUTED  v  MILKHI  RAM,  7  L  L  J  J5S,  A  1  R  1925 
Lah  5 '5  602 
Mortgage  or  sale—Quetiwn,  of  fact 

The  question  whether  a  certain  tiansaction  is  a 
moitgageor  a  sale  is  a  question  of  fact  and  cannot 
be  agitated  in  second  appeal  L  PAL  SINGH  v.  GAKGA 
SINGH,  2  L  C  194  42 


-  New  case,  See  MADRAS  ESTATES  LAND 
Acr,  1908,  s  2(3)  1047 

Pti  manent  tenancy,    finding  a$  to  — 

Ih'jh  Court,  interference  by 

Wheie  a  lower  Appellate  Couit  refuses  to  diaw  an 
inference  of  the  permanency  of  a  tenancy  fiom  tho 
facts  that  the  tenancy  is  an  old  one,  that  the  rent  has 
not  been  varied  and  that  the  land  was  let  out  for  the 
purpose  not  of  building  any  permanent  structure  but 
of  raising  huts,  there  is  no  error  of  law  which  would 
justify  the  interference  of  the  High  Court  in  second 
appeal  C  BAIKUNATHA  NATH  DE  v  SHAIK  HARI,  A.  I  R. 
1926  Cal  592  899 

Value  of  documentary  evidence   whe- 
ther can  be  considered 

A  Court  of  second  appeal  will  deal  with  the  ques- 
tion  of  tho  admissibility  in  evidence  of  a  document 
but  not  with  its  evidentiary  value,  C  RAM  KUMAR 
DAS  v.  HARNARAIN  DAS  1 04 

Appellate  Court,  power  of— Discretion  not  exercised 
by  Trial  Court, 

It  a  Court  does  not  exercise  a  discretion  which  it 
might  have  exercised,  it  is  open  to  the  Appellate  Court 
to  exeicise  that  disci  etion  L  ALLAH  BAKHSH  v.  MUNIO 
PAL  COMMITTEE,  A  I,  K  l»2<i  I  ah.  223  966 

Arbitration— Award,  suit  to  enforce— Contract 
taining  arbitration  clause,  validity  o/,  whether 


1060 


INt>IA&  OASfcS. 


[1W6 


Arbitration— concld. 

In  answer  to  a  suit  to  enforce  an  award,  made  on 
a  reference  in  pursuance  of  an  arbitration  clause  con- 
tained in  a  contract  alleged  to  have  been  entered  into 
between  the  parties,  it  is  open  to  the  defendant  to 
plead  that  tkero  xvas  no  completed  contract  between 
the  parties  and  that  con  equently  the  arbitration 
clause  could  not  come  into  operation.  This  objection 
goes  to  the  root  of  the  whole  matter  and  must  be 
determined  along  with  any  other  issues  in  the  suit. 
L  RAGHUNATH  DAS-RAM  SARUP  v  SULZBR  BRUDEHER  & 
Co,  7  L.  L.  J.  611,  7  L  42,  A.  I.  R.  1926  Lah.  125  712 

Arms  Act  (XI  Of  1878),  8. 19  (f)~- Illegal  possession 
of  arms— Arms  found  in  room  attached  to  office  fre- 
quented by  many  people— Lessee,  whether  in  posses- 
sion. 

The  upper  storey  of  a  house  used  as  the  office  of 
a  certain  Society,  which  was  rented  in  the  name 
of  the  accused,  was  raided  by  the  Police  and  a  pistol 
and  a  certain  number  of  cartridges  were  found  at  the 
bottom  of  a  gram  bin  in  a  room  at  the  back  of  the 
kitchen  which  had  no  doors.  The  accused  was  not 
present  at  the  time  of  the  search,  but  three  other 
members  of  the  Variety,  to  one  of  whom  the  key  of 
the  house  had  been  made  over  by  the  accused,  were 
present. 

Held,  that  it  could  not  be  said  that  it  had  been 
proicd  beyond  reasonable  doubt  that  the  pistol  and 
cartridges  were  in  the  possession  of  the  accused  A 
KRISHNA  COPAL  v,  EMPFROR,  27  Cr  L  J  301  589 


l  tenancy.    See  LANDLORD  AND  TENANT 
transaction— Proo*, nature  of. 


80 


In  view  of  the  extraoidmary  prevalence  of  benami 
transactions  in  India,  even  a 'slight  quantity  of  c\i- 
dence  may  suffice  to  pixne  it.  N  AHMAD  BAIG  v  MODEL 
MILL,  NAQPtm,  LP,,  A.  I  R.  1026  Kag  262  25 

Bengal  Cess  (Amendment)  Act  (IV  of  1910),  ss. 
52,  52A~A/ottce  that  tenure  has  been     included 
within  zemindari,  publication  of,  proof  of— Notice 
published  before  passing  of  Amending  Act  of  WW, 
whether  can  be  proved  oy  certificate  granted  subse- 
quently—Cess, liability  to  pay, 
The  publication  of  the  notice  mentioned  in  s  52  of 
the  Bengal  Cess   (Amendment;  Act  must  be  strictly 
proved  before  the  liability  of  the  holder  of  a  tenuie 
in  respect  of  a  cess  can  arise. 

A  certificate  given  by  the  Collector  m  accordance 
with  the  provisions  oi  &  i^A  oi  the  Bengal  Cess 
(Amendment;  Act  that  a  notice  under  s.  02  of  the 
Act  has  been  duly  published,  is  conclusive  proui  of 
the  fact  that  the  publication  \\as  made,  it  is  im- 
material that  the  certincate  refers  to  a  publication 
which  took  place  before  the  passing  of  the  Bengal 
Cess  (Amendment)  Act  IV  of  1D10  which  added  s.  52A 
to  the  Bengal  Cess  (Amendment;  Act.  The  Amending 
Act  only  provides  the  method  of  proving  the  publi- 
cation of  the  notice.  It  creates  no  new  right  nor 
does  it  affect  any  existing  right.  A  notice  published 
before  the  passing  ol  the  Amending  Act,  may,  there- 
fore, be  proved  by  the  production  of  a  certiticate 
from  the  Collector  given  after  the  pasting  of  the 
Amending  Act  that  the  publication  Jiad  been  duly 
xnade.  C  KISHI  KBSH  LAW  v.  SOKSAISD  HEIRS  oFSiuu- 
6HER  KKAN  43 

Bengal  Ferries  Act  (I  B.a  of  1885),  ss.  16,28 

Criminal  Procedure  Code  (Act  V  of  ibm  *.  &a~ 
tFerryt  unauthorised,  maintenance.  of—Carriage,  of 
pawngersor  property-Offence- Several 
tnal  De 


Bengal  Ferries  Act  -concld. 

Section  16  of  the  Bengal  Ferries  Act  only  makes 
the  maintenance  of  a  ferry  within  the  prohibited  area 
au  unauthorized  act  but  does  not  make  such  an  act 
penal.  Section  28  of  the  Act  is,  however,  a  penal 
provision  which  makes  the  maintenance  of  an  un- 
authorized feiry  under  s  16  of  the  Act  an  offence 
when  the  ferry  is  used  for  conveying  a  passenger, 
animal,  vehicle  or  other  thing  for  hire  * 

In  order  to  constitute  a  feny  such  as  contemplated 
by  the  Bengal  Ferries  Act  it  is  necessary  that  there 
should  be  two  points  on  both  sides  of  the  river  so  that 
passengeis  and  property  may  be  conveyed  from  one 
side  of  the  river  to  the  other.  It  must  be  connected  on 
both  sides  with  land  on  the  banks  of  the  river. 

The  maintenance  of  a  private  ferry  is  m  contraven- 
tion of  s  16  of  the  Bengal  Ferries  Act  for  \\hich  the 
person  who  maintains  the  ferry  may  be  liable  for 
damages  and  an  injunction  may  also  be  issued  against 
him.  If,  however,  in  addition  to  maintaining  such  a 
prohibited  private  ferry,  he  carries  pasbengeis  or 
property  he  is  liable  criminally  under  s.  28  of  the 
Act  and  each  time  he  conveys  passengers  or  property 
for  hire  ho  commits  an  otfence.  Each  tup  is  a 
separate  tiausaction  and  can  be  tried  separately. 
"Where  several  tiips  aie  made  within  the  course  of  a 
few  days  the  propel  procedi  re  is  for  the  Magistrate  to 
try  the  accused  at  one  time  only  in  respect  of  three  of 
these  tiansacticns  and  to  ute  the  leintiming  transac- 
tions as  e\  idence  in  the  case  fur  the  purpose  of  deter, 
mining  the  amount  of  the  damages  payable  under  the 
Act.  Jf  a  conviction  is  obtained  m  lespect  of  tiansac- 
tions  selected  for  trial,  the  Court  should  stay  the 
enquny  into  or  trial  of  the  other  charges  "which  will 
have  the  effect  of  the  acquittal  of  the  accused  en 
those  charges  subject  to  the  event  of  the  conviction 
being  feet  aside  on  appeal  or  revision.  If  the  convic- 
tion is  set  aside  ths  Magistrate  may  pioceed  with 
the  trial  of  or  enquiry  into  other  charges.  Pat 
JEOBARAN  SINGH  v  RAMKISHUN  LAL,  4  Pat.  £03;  A.  1.  R, 
1925  Pat  623,  27  Oi  L  J  359  871 

Bengal    Land  Redemption    and   Foreclosure 

Regulation  (XVII  Of  1806).    See  MORTGAGE  531 

Bengal,  N.  W.  P.  and  Assam  civil  Courts  Act 

(XII  Of  1887),  S.  20,  scope  of. 

Section  20  of  the  Bengal,  N.  \V .  P.  and  Assam   Civil 

Courts  Act  does  not  confer  a  right    of  appeal   from 

every  older  of  the  District  Judge  to  the  High  Court; 

it  only  determines  the  forum  to  which   an  appeal,  if 

any,  shall  he  from  decrees  or  ordeis  of  the  District 

Judge.    Pat  WABHIUAN  v.  MIR  NAWAB  ALI,  3  Pat,  1018; 

A  I  R.  1925  Pat.  L'8;  7  P.  L.  T.  424  133 

Bengal  Patnl  Taluks  Regulation  (VIII  of  1819), 

SS.  8)  10 — Patni  vale — Notice,   service  of — Failure 

to    comply  with  requirements    of      sections — Safe, 

validity  of. 

Failure  to  comply  strictly  with  the  requirements 
of  ss.  8  and  10  of  the  Bengal  Patni  Taluks  Regula- 
tion is  fatal  to  the  validity  of  a  patni  sale.  P.  C, 
RAJA  BHUPBNDEA  NABAYAN  SIKOH  BAHADUR  v.  BAPAB 
BAKHSH  SHEIKH,  A.  1.  R,  1925  P,  C  297;  23  L.  W.  9; 
521.  A  430;  53  C.I  681 

Bengal  Regulation  (XXV 1 1    Of  1793)— Permanent 
Settlement—  Income  from  jalkar,  hat  and   ghatlaggi, 
whether  taken  into  account— Income,  t  whether  liable  to 
assessment  to  income-tax — Darbhanga  Ray. 
The  Permanent  Settlement  left  to  the  zemindar  the 
ground  rents  of  land,  shops,  etc.,  in  all  the  then  ex- 
isting hats  except  such,  if  any,  as  were  specifically 
excluded  and  if  more  hats  are  now  shown  to  exist 
than  appear  in  the  Settlement  paper*  it  must  be  pre* 


fot  92] 


OBKBRAL  INDEX, 


Bengal  Re«uiatlon-conold, 

sumed,  in  the  absence  of  evidence  to  the  contrary,  that 
they  have  sprung  up  since  the  Settlement.  If  they 
existed  at  the  time  of  Settlement  they  were  left  under 
the  general  regulations  to  the  zemindar  in  the  absance 
of  any  specific  exclusion  The  onus  is  not  on  the 
assessee  to  prove  inclusion  but  upon  the  Crown  to 
prove  exclusion. 

The  Permanent  Settlement  Regulations  apply  as 
much  to  subsequently  settled  lands  as  to  lands  settled 
in  1793. 

Where  a  ghat  has  been  settled  with  a  zemindar,  the 
latter  has  the  right  to  collect  mooring  dues  as  well 
as  tolls  or  ferry  dues 

The  income  derived  from  ]alkar,  hat  and  ghatlaggi 
was  included  m  the  assets  of  the  Darbhanga  Raj 
when  the  jama  was  assessed  at  the  time  of  the 
Permanent  Settlement,  and  such  income  is,  therefore, 
not  liable  to  be  assessed  to  income-tax  Pat  MAHARAJ 
DHI RAJ  OF  DARBHANGA  i'  COMMISBIONFR  OP  INCOME  TAX,  \ 
2  Pat.  L  R  2i*  Cr  ,  (1925)  Pat  49,  A  I  R.  19*5  Pat 
313,  6  P.  L.  T  355  338 

Bengal  Tenancy  Act  (VI 1 1  of  1885),  ss,  29,49- 

Ejectment— f/nder-raiyat  -Occupancy  rtghts—Heut- 

ability  of  imder-raiyati  holding 

An  under-ra.ii/at  may  acquire  right  of  occupancy  by 
custom  or  usage  and  is  not  then  liable  to  be  ejected. 

Ordinarily  the  holding  of  an  under-rcm/at  whether 
with  or  without  rights  of  occupancy  is  not  heritable. 

Tho  descendant  of  an  under-raiyat  with  lights  of 
occupancy,  who  fails  to  prove  that  his  ptedecessors 
interest  was  heritable  is  a  trespasser  and,  therefore 
liable  to  ejectment  C  ISWOR  SANT  v  TORENDRA  NATH 
KUILA,  42  0  L  J  560,  AIR  1026  Cal  16,'i  981 
3.46,  SCh.  Ill,  Art.  2  (b)  —  Limitation  Act 

(IX  of   lyOS),  s  ;/,—  Proceedings  under  6  46,  nature 

of—  "Ayreeme nt"  in  $   JtO  (7),    meaning  of— Suit   to 

recouer     tent  accruing    due,    dwing      pendency  of 

proceedings — Limitation 

Proceedings  under  s  4ti  of  the  Bengal  Tenancy  Act 
are  proceedings  not  merely  for  ejectment,  but  to' have 
a  fair  and  equitable  rent  assessed  by  the  Coiut  If 
the  tenant  retuses  to  accept  the  agreement  filed  under 
tho  provisions  of  the  section,  it  is  then  that  a  suit 
for  ejectment  under  the  section  can  be  commenced 

The  word  "agreement"  m  sub-s  (7)  of  s  46  of  the 
Bengal  Tena.ioy  Act  refers  not  to  the  agreement 
mentioned  in  the  previous  sub-sections  but  to  the 
agreement  arrived  at  between  the  laiidloi  d  and  the 
tenant  when  the  Court  has  fixed  the  fair  and  equitable 
lent  and  the  tenant  has  elected  to  pay  that  rent  and 
not  to  be  ejected  from  the  holding 

The  rent  accruing  due  during  the  pendency  of 
proceedings  under  s  46  of  the  Bengal  Tenancy  Act 
ia  not  suspended  by  virtue  of  the  proceedings,  and  a 
suit  after  the  termination  of  such  pioceedmgs  to 
recover  such  rent  is  governed  by  Art.  2  (6)  of  Sch.  Ill 
to  the  Bengal  Tenancy  Act  and  the  period  of  limita- 
tion provided  in  that  Ai  tide  is  not  extended  by  the 
operation  of  s.  H  of  the  Limitation  Act.  C  PORT 

OANNIN'G  AND  LAND  IMPROVEMENT  Co   V.  HEIRS    OF  BAHIR 

MOLLA,  43  0,  U  J.  45,  A.  1  K.  1926  Cal  693  37 
• —  S.  49  (b) — Ejectment,  suit  for — Lease  for 

indefinite  term— Landlord   and    tenant— Ejectment 

suit—  Permanent  tenancy — Onus. 

Where,  in  a  suit  for  ejectment  of  a  tenant  tho 
defendant  sets  up  a  permanent  right  the  onus  lies  on 
him  to  substantiate  hia  claim. 

A  landlord  is  entitled  to  evict  a  tenant  holding 
under  &  lease  for  indefinite  period  by  a  notice  under 


Bengal  Tenancy  Aet—ooatd, 

»  49  (6),  Bengal  Tenancy  Act,  0  BANGSHI  BADA* 
HAIDAK  v.  KATAN  961 
5.  50— Old  tenancy  ^-Additional  area  on 

additional    rent— Presumption     of  fixity  of    r«nt, 

whether  applicable — Burden  of  proof. 

Where  a  tenant  adds  new  area  to  his  old  tenancy 
on  additional  rent,  he  is  not  deprived  of  the  presump- 
tion arising  under  s  50  of  the  Bengal  Tenancy  Act  so 
far  as  the  old  tenancy  is  concerned  The  onus  of  prov- 
ing what  the  old  area  was  is  upon  the  tenant. 

A  tenant  cannot,  however,  by  adding  new  area  to 
the  old  tenancy,  claim  the  benefit  of  the  presumption 
so  far  as  the  added  area  is  concerned,  C  HBM  CHANDRA 
8«M  v.  GIRISH  CHANDRA  SAHA  1 07 

8.  105— Civil    Procedure  Code  (Act  V  of 

1903),  0  XLI,  r    27— Landlord  and  tenant— Assess- 
ment of  additional  rent  for  additional  area— Memo- 
randum of  measurement,  admissibdity  of — Appeal  — 
Additional  evidence,  admission  of— Procedure 
In  a  proceeding  under  s    105  of  the  Bengal  Ten- 
ancy   Act    for    assessment    of   additional   rent    for 
additional  art  a,  a  document  purporting  to  be  a    me- 
morandum of  measuiement,  which  bears  no  date  and 
about  which  it  is  not  shown  under  what  circumstances 
it  was  prepared,  cannot  be  admitted  in  evidence 

An  application  was  put  m  before  an  Appellate 
Court  asking  that  a  document  attached  to  the  appli- 
cation should  bs  admitted  in  evidence  The  only 
order  passed  on  the  application  was,  "file  with  the 
recoid" 

Held,  that  the  document  was  not  properly  admitted 
in  evidence  C  ADAM  SAUDAR  v  BISWESWAR  DAS,  A  J. 
R.  192l>  Cal  684  601 

8. 105— Settlement  of    rent— Suit  to  recover 

rent    at  rate   settled— Plea   of  denial    of  settlement 

proceedings  -Fraud,    plea     of,  absence  of—Notice, 

service  of,  whether  can  be  enquned  into 

In  answer   to  a  suit  to  lecover  rent    at    the    rate 

settled    in  proceedings   under    s    JOS  of  the   Bengal 

Tenancy  Act,  defendant  denied    that  theie  was  any 

such  proceedings  and  stated   that  if  any  order  under 

s  103  had   been  obtained    it  was    not   binding  upon 

him      There 'was  no  pita    of  fraud  and  no  issue  was 

raised  m  the  suit   as  to  the  validity  or  otherwise  of 

tho  pioceedings  under  s  105 

Held,  (1)  that  in  the  absence  of  a  plea  of  fraud  it 
was  not  open  to  the  Court  to  try  the  question  as  to 
whetber  there  was  any  service  of  notice  on  the 
defendan'  <»r  not  in  the  proceedings  under  s  105  of  the 
Bengal  Tenancy  Act ; 

(_)  that  if  the  defendant  wished  to  challenge  the 
proceedings  under  s  105  on  the  ground  of  non-service 
of  notice,  he  ought  to  have  questioned  the  proceedings 
before  the  Settlement  Officer,  or  by  way  of  proceedings 
appropriate  for  such  relief  or  by  appeal,  and  that  it 
was  not  open  to  him  to  do  so  in  answer  to  the  present 
suit.  C  TAIUMONEE  OHOUDHURANI  v.  SHEIKH  ELIM,  A  I. 
R  1926  Cal.  582  714 


—  3.  182 — Ejectment- 
part    of   homestead 


•Culturable  lands  form- 
of    raiyat-  Liability  to 


ing 

ejectment. 

Where  culturabie  lands  form  part  of  and  are  ap- 
purtenant to  the  homestead  lands  of  a  raiyat  he  ia 
protected  from  eviction  therefrom  under  the  provi- 
sions of  s.  1^2  of  the  Bengal  tenancy  Act  C  ASWAP 
ALI  BLPARI  r.  LULA  MU,  A.  1  K.  19*6  Cal  580  843 
Sch.  ill,  Art.  2  (to).  See  BENGAL  TENANCY 

ACT,  1883,  s.  46  37 
Art.  3—  Landlord  and  tenant — 


1002 


INDIAN  OASES, 


[1926 


Bengal  Tenancy  Act-concid, 

Dispossession  of  tenant  by  purchaser—Possess  ion>  suit 

'to  recover — Limitation. 

Where  an  agent  of  the  landlord  purchases  a  portion 
of  a  tenant's  jote  and  as  such  purchaser  dispossesses 
the  tenant  from  the  portion  purchased,  a  suit  by  the 
tenant  to  recover  possession  of  the  portion  of  the  jote 
from  which  he  has  been  dispossessed  is  not  governed 
by  Art  3  of  Sch  III  to  the  Be ngal  Tenancy  Act  C 

PURGA  PROSAD  L.AHIIU    CHOtTDKmU  r.  RATAN  MAHOMMKT) 

SARKAR  897 

Berar  Land  Revenue  Code,  1896,  s.  210-  tfale  to 

en-occupant  and  stranger — Pre-emption 
Where  a  co-occupant  in  a  survey  number  sells  his 
share  in  the  survey  number  to  a  co-occupant  and  a 
stranger,  the  sale  cannot  be  described  as  being  one  in 
favour  of  a  co-occupant  and  s  210  of  the  Berar  Land 
Revenue  Code  lias  no  application  to  such  a  case  N 
SAKHAUAS!  v.  SIIEOEAM,  21  N  L.  R  189,  A  I,  R.  1926 
Nag  220  334 

Bihar  and  Orlssa  Government  Notification 
No.  2576.  See  COURT  FEES  ACT,  1870,  Sen,  II.  ART. 
11  474 

Bills  of  Lading  Act  (IX  of  1856),  s.  3 -Bill  of 
Lading,  description  of  goods  in,  whether  conclusive 
• — Exemptions  clause  in  BiJl  of  Lading,  effect  of — 
Port  Trust,  whether  entitled  to  benefit  of  exemption. 
The  general  rule  based  on  the  provisions  of  s  3  of 
the  Bills  of  Lading  Act,  to  the  effect  that  in  the 
absence  of  any  proof  that  the  Bills  of  Lading  were 
granted  under  a  misrepresentation  without  any  default 
on  the  part  of  the  person  signing  them  and  wholly 
due  to  the  fault  of  the  shipper  or  the  holder  of  such 
Bills  of  Lading,  the  Bills  of  Lading  are  conclusive  evi- 
dence that  the  goods  bearing  particular  marks  as 
shown  in  the  respective  Bills  of  Lading  wen*  put  on 
board,  has  no  application  when  the  Shipping  Company 
has  protected  itself  by  insertion  of  a  clause  in  the 
Bill  of  Lading  that  the  maiks  and  numbers  though 
shown  in  the  Bill  of  Lading  are  unknown  to  them  and 
that  they  do  not  admit  that  the  marks  or  numbers 
shown  in  the  Bill  of  Lading  are  correct  and  when  they 
have  exempted  themselves  from  liability  against 
obliteration  or  difference  of  marks 

Section  3  of  the  Bills  of  Lading  Act  applies  only  m 
the  case  of  the  master  or  peison  signing  the  Bill  and 
does  not  apply  to  the  Port  Trust 

Even  if  the" Port  Trust  be  considered  to  be  the  agent 
uf  the  Shipping  Company,  they  would  be  equally 
entitled  to  the  benefit  of  an  exemption  clause,  as  a 
whai finger  is  instilled  or  excused  by  the  same  thing 
as  would  justify  or  excuse  the  master  and  can,  conse- 
quently, claim  benefit  of  exemptions  provided  in  a 
Bill  of  Lading  S  POHOMAL  v  KARACHI  PORT  TRLST.  A 
I.  R  1925  Sind  221;  18  S  L  R  106  206 

Bombay  Abkarl  Act  (V  of  1878),  s.43  (1)  (a)— 
Importation  of  foreign  liquor— Punishment,  appro- 
priate. 

On  conviction  under  s  43  (1)  (a)  of  the  Bombay  Ab- 
kari  Act  the  more  appropriate  form  of  punishment  is 
imprisonment  and  not  fine.  8  EMPEROR  v.  GULAB,  27 
Or.  L.  J.  300  588 

Bombay  Hereditary  Offices  Act  (ill  of  1874), 
88.15,  73—  Bombay  Revenue  Jurisdiction  Act  (X 
of  1876),  9.  k  (&-~Widow,  whether  holder  of  watan— 
Commutation  order,  passed  ac  instance  of  widow, 
validity  of—  Order  passed  without  recording  in* 
vestigation  or  notice  to  other  members,  talidity  of  - 
Suit  for  declaration  of  invalidity  of  commutation 
order,  maintainability  of. 


Bombay  Hereditary  Offices  Act- conoid. 

The  interest  of  a  widow  in  a  watan  is  to  be  compared 
to  the  interest  of  a  Hindu  widow  in  her  husband's 
estate, 

A  widow  holding  an  interest  in  watan  property  for 
the  term  of  her  life  or  until  her  marriage  is  not  a 
"holder"  within  the  meaning  of  that  term  in  s  15  of 
the  Bombay  Hereditary  Offices  Act,  and  the  Collector 
negotiating  with  such  a  widow  is  not  authorized  to 
pass  a  commutation  order  tinder  s.  15 

A  commutation  order  passed  under  s.  15  of  the 
Bombay  Hereditary  Offices  Act,  without  making  a 
record  of  any  investigation  or  giving  any  opportunity 
to  the  other  members  of  the  watan  family  of  being 
heard  and  without  recording  reasons  is  invalid. 

A  suit  for  a  declaration  that  a  commutation  order 
passed  under  s  15  of  the  Bombay  Hereditary  Offices 
Act  is  invalid  on  the  ground  that  it  was  passed  at  the 
instance  of  a  person  who  was  not  a  "holder"  within 
the  meaning  of  s.  15  and  that  the  provisions  of  s  73 
of  the  Act  had  not  been  complied  with  is  not  barred 
by  the  provisions  of  s  4  (a)  of  the  Bombay  Revenue 
Jurisdiction  Act  B  LAXMAN  BHIKA.TI  v  SECRETARY  OP 
STATE  FOR  IKDIA,  27  Bom.  L.  R,  463,  A  I,  R  1925  Bom. 
365,  49  B.  551  110 

Bombay  Khotl  Settlement  Act  (I  of  1880),  s. 
33,  r.  II  (1)  (b)~- Landlord  and  tenant-  -Rent  pay- 
able— Botkhat,  entry  in,  value  of —Arrangement, 
unauthorised,  between  khot  and  tenant,  whether  can 
be  enforced 

The  whole  scheme  of  s  33  of  the  Bombay  Khoti 
Settlement  Act  is  to  prevent  arrangements  being  made 
in  an  unauthorised  wa}^  by  the  khots  with  the  tenants 
contrary  to  the  terms  of  the  bot-khat  Rule  II  (1)  (6) 
under  the  section  provides  that  if  there  is  any  agree- 
ment between  tho  parties  after  the  amount  of  rent 
has  bocn  iixed  in  the  bot-khat,  then  the  parties  should 
appear  in  person  or  by  duly  authorised  agent  before 
the  Recording  Officer  and  consent  to  the  entry  beirg 
made  altering  the  terms  under  which  the  tenant  holds 
the  hinds  Where  the  agreement  is  not  given  efiect 
to  in  this  manner,  the  rights  and  obligations  of  Ihe 
parties  continue  to  be  regulated  by  the  terms  of  the 
entries  contain sd  in  the  bot-khat  and  the  agreement 
cannot  be  given  effect  to.  B  BALSHET  MAHADSHKT 
YEKAWDBV  IIuu  BABUKAO  RANK,  27  Bom.  L,  R.  1487; 
A  I.  R.  1926  Bom  119  542 

Bombay  Revenue  Jurisdiction  Act  (X  of  1876), 

s,  4  (a).  See    BOMBAY  HEREDITARY  OFFICES   ACT, 
1874,  s  115  110 

Buddhist  Law,  Burmese.  See  C.  P.  C.,  1908,  O.  VI, 
R  17  253 

Adoption— Minor,  whether  can  adopt. 

Adoption  is  a  contract  under  which  a  person  takes 
another  with  certain  objects  and  confers  certain 
rights.  Hence,  to  be  able  to  adopt  a  person  must  be 
of  age  and  able  to  contract  A  minor  is  not,  therefore, 
legally  empowered  to  adopt  any  person  R  MA  UNO 
MYA  DIN  v.  MAUNG  YE  GYI,  A.  I.  R.  1025  Rang.  3.K0;  4 
Bur.L.  J.  136  719 
Inheritance — Suit  to  recover  share  of 

— Necessary  parties. 

In  a  suit  by  an  adoptive  daughter  of  a  deceased 
Burmess  Buddhist  couple  to  recover  her  share  in  the 
jointly  acquired  estate  of  her  adoptive  parents,  all 
persons  who  are  co-heirs  of  the  deceased  must  be 
implcadofl  ns  parties  R  MA  MK  MYA  v.  MA  MIN  ZAN, 
A.  L  R,  1925  Rang  .320;  3  R,  490;  4  Bur.  L.  J.  159 

368 


92] 


GENERAL  INDEX. 


1065 


Burden  of  proof.  See  0.  P,  0..  1008,  s.  us        46 
Burma  Village  Act  (VI  of  1907),  s.  21  (a)-pwe, 

meaning  of  — Dramatic  performance  held  by  amateurs 
for  public,  entertainment— Notice,)  absence  of — 
Robbery  — Offence. 

For  the  purposes  of  the  Burma  Village  Act  a 
pwe  ordinarily  includes  a  theatrical  or  dramatic  per- 
formance held  for  public  entertainment  whether  on 
public  or  private  property 

The  object  of  requiring  a  permit  for  such  a  per- 
formance is  to  ensure  that  the  authorities  should  get 
timely  notice  to  arrange  for  piecautionary  measures. 
Accused  gave  a  dramatic  performance  at  his  house 
for  public  entertainment  without  obtaining  a  permit 
for  the  same  The  troupe  was  composed  of  local 
amateurs  During  the  performance  a  robbery  took 
place  in  the  neighbourhood 

Held,  that  the  accused    was  guilty  of  an  offence 

under  s  21  (a)  of  the  Burma  A^illage  Act    R  EMPEROR 

v  MUJMGTHAN  GYAUNG,  A    I     R  1^5    Rang    375,4 

Bur   L  J  145,  1  R   514,  27  Or  L  J  342  854 

Calcutta  High  Court   Rules,  Ch.  XVI,  r.  27.  See 

LIMITATION  ACT,  1908,  s  5  563 

Calcutta  Rent  Act  (II!  of  1920),  ss.  2    (f)  (I),  11 

(5),  15 — Standard  tent,  what  is— Benefit  of  Act. 

In  the  absence  of  any  application  by  the  landlord  to 

fix  a  higher  rate  undei  &  15,   Calcutta  Rent  Art,  the 

standard  rent  should  be  taken  to  be  the  rent  at  which 

the  premises  were  let  on  the  1st  of  November  1918 

with  the  addition  of  ten  per  cent 

A  tenant  is  entitled  to  the  benefit  of  s  11,  Cal- 
cutta Rent  Act,  if  he  complies  with  two  conditions, 
(1)  he  must  have  paid  any  arrears  of  rent  which  might 
be  due  at  the  time  of  the  passing  of  the  Act  within 
thres  months  of  the  passing  of  the  Act,  and  ("2)  ho 
must  pay  the  lent  to  the  full  extent  allowable  by  Hie 
Act  within  tho  timo  iix^d  by  the  contract  with  his 
landlord  and,  in  the  absence  of  any  such  contract,  by 
the  loth  day  of  the  month  nsxt  following  that  for 
\\hich  the  rent  is  payable 

When  a  person  coases  to  be  a  tenant,  he  cannot 
take  advantage  of  tho  provisions  of  the  OaloutU  Rent 
Act  C  W  &  T  AVKRY  Ln  r  KFSSOKAM  FODDER,  10  0 
W  N  152,  A  I  R  1926  Cal  481  1001 

8, 15  —Decree  for  ejectment  -  Standai  Jizalwn 

of    rent-  Rent    Controller,  jurisdiction  of 
Aftei  a  landloid    has  obtained    a    deciee  for  eject- 
ment of  the  tenant,    the  Rent  Controller  has  no  juris- 
diction to  fix  a  standard  rent  of  the  piemises,  as  there 
is  no  tenancy  in  existence     C  8ukHi>n,oi>Afl  RAM  Piumu 
v  JAINTILAL  JAMUNADAS,  AIR  1926  Cal,  697       392 
Cantonments  Act  (XV  of  1910),  s.  15  (1)—  Water 
chargest  whether  tax— Modification  of  charges  ~  Pre- 
vious sanction  of  Governor-Genet  al,  whether  necessary 
— Cantonment  Committee,   whether  can  sell  water- 
Cantonment  Code  of  1<JL2,  r  157 
The    water  charges    sanctioned   by    the  Governor- 
deneral  in  Council   as    requnedby's  15  (1)  of    the 
Cantonments  Act    and  levied  by  a  "Cantonment  Com- 
mittee   under    Notifications    issued  under    the   said 
section  are  in  the  nature  of  a  tax  and  cannot  be  in- 
creased or  varied  by  the  Committee  without  the  previ 
ous  like  sanction  of  the  Governor-General  in  Council 
Rule  157  of  the  Cantonment  Code  of  1912  does  not 
empower    a    Cantonment     Committee    to    limit    the 
quantity   of    water   supplied    in    proportion  to    the 
buying    value   of  the  tax  levied     This   rule   is   not 
intended   by   implication  to   vest   a  non -commercial 
body  like  a  Cantonment  Committee  with  the  right  to 
vend  water   as   a    commodity     S  JOTSING   HARISING 
ADVANCE  SECRETARY  OF  STATE  FOR  INDIA,  A,  I,  R.  1P26 
SindlSO  361 


Cantonment  Code,  1912,  6,  157. 

ACT,  1910,  s.  15  (1) 


361 


Carriage  Of  goods—  Railway  Company—  Freight 
charged  at  maund-rates,  whether  can  be  subsequently 
calculated  at  wagon-rates 

Where  a  Railway  Company  at  the  time  of  consign- 

ment agrees  to  charge  freight  on  the-  basis  of  calculation 

at  maund-  rates  and  grants  a  Railwfty  receipt  on  that 

"basis,  it  cannot  subsequently  demand  freight  on  the 

basis  of  a  calculation  at  wagon-rates  and  vice  versa    A 

BOMUAY  BARODA  &  CENTRAL   INDIA  RY    v  GULABBHAI 

BHAGWANPAS,  A  I  R  1926  All  296  532 

—   -  Railway  Company-—  Risk    Note  B  —  "Robbery 

from  running  tram/1  whether  includes  theft  —  "  Wilful 

neglect"  meaning  of—  -"Running  tram"  meaning  of: 

The  expression  "robbery  from  a  running  tram"    in 

Risk  Note  B  used  m  the  transmission  of  packages  on 

the  Railway  does  not  include  theft    or  taking  without 

force     It  has  its  technical  meaning  assigned  to  it  by 

the  Penal  Code. 

'Wilful  neglect'  as  used  in  the  Risk  Note  B  may  be 
taken  to  be  the  failure  of  a  person  to  take  any  reasonr 
able  measures  that  he  was  aware  or  should  have  been 
aware  were  likely  to  lessen  the  risk  of  loss  of  a 
consignment  or  a  portion  of  it 

The  term  'running  tram'  in  Risk  Note  B  does  not 
signify  that  the  tram  must  actually  be  in  motion  If 
the  tuun  is  on  its  journey  from  one  destination  to 
another,  thftis,  from  junction  to  junction  it  iwnnot 
be  said  that  the  tram  is  not  a  running  tram  simply 
becau5^  it  stops  either  on  the  road-side  station  or  at 
miy  place  between  the  road-hide  stations  O  BENGAL 

NORIH-WKITERVRY    V    BAN'BI  DlfAR,  3  0.  W    N    145,    A 

1    R   l'J2G  Cudh  218  603 

--  Railway    Company—  Risk      Notf    Form    H, 
halititv  under—  Lost  of  goods  not  uiged—Pwlcctwn 
under  Risk  Note—Onus  of  low 
The  only  lo^s  for  which  a  Railway  Company  can  bo 
held  accountable  under  Risk  Note  Fo,  in  H,  even  in  caso 
of  wilful  negligence,  must   be  loss  of  a  complete  con- 
signment or  of  a  complete  package  or  packages  form- 
ing part  of  such  consignment. 

But  where  a  plaintiff  does  not  come  into  Court  on 
HIP  ground  of  lobs,  destiuclion  or  deterioration,  the 
Railway  Company  must  prove  that  the  goods  ha\e 
1/ecn  lost  or  destroyed  01  have  deterorated  before 
thev  can  claim  the  piotection  of  the  Risk  Note  A  G  I 
P  RAILWAY  v  KUNJ  BEHARI  LAL,  A  I  R.  1926  All  228 

993 

-  Railway  Company—Risk  Note—Sealing  wagon 
with     faper  —  Lous    of    goods     in     transit—Wilful 
negligence—  Contract  Act    (IX    of    1872),     s  SSI- 
Railway  receipt  grant?  din  name  of  agent—  Loss  of 
goods—  Owner  of  (joods,  whether  can  sue 
Where  a  Railway    receipt  for  goods  consigned  is 
granted  in  the  name  of  a  servant  or  agent,  the  real 
owner  of  the  goods  is  entitled  to  sue  directly  the  Rail- 
way Company  for  their  value  if  the  goods  are  lost  ^ 

Sealing  a  wagon  with  paper  only  constitutes  wilful 
negligence,  and  tho  Railway  Company  can  be  success- 
fully sued  for  damages  if  the  goods  are  lost  in  transit, 
A  EAST  INDIAN  RAILWAY  v  FIRM  BALDEO  GUTAIN  1OO7 

Cattle    Trespass  Act  (I  of  1871),  s.    24-  Cattle 

pound—  Illegal  seizure  of  cattle—  Rescue—  Offence 

Before   a   conviction   under   s    24  of    the    Cattle 

Trespass  Act   can  be  sustained    it    is   necessary  to 

prove  that  the  cattle  which  has  been  rescued  for  tha 

cattle  pound  was  liable  to  bo  seized  under  the  Act.   A 

BABU  v   EMPEROR,  24  A.  L.  J.  280;  27   Cr,  L.  J.  313;  A. 

I,R,192«A1L276  -  697 


1004 


INDIAN  OA8ES, 


[1926 


Q*U8ft  Of  *Qtlon~*"C0m2>ift*ecT    and  ^'continuous" 

causes  of  action— Prospective  damages—  Damages  as 

mem  profits,  when  recoverable. 

There  is  a  distinction  between  a  completed  cause 
t>t  action  which  may  yet  produce  damage  in  future 
and  a  continuous  cause  of  action  from  which  con- 
tinuous damage  steadily  flows. 

The  term  "prospective  damages"  is  applied  to  the 
damages  which  are  awarded  to  a  plaintiff  not  as  a 
compensation  for  the  ascertained  loss  which  he  has 
sustained  at  the  time  of  commencing  his  action  but 
in  respect  of  loss  which,  it  may  reasonably  be 
anticipated,  he  will  suffer  thereafter  in  conflequence 
of  the  defendant's  act  or  omission. 

A  plaintiff  is  entitled  to  have  prospective  damages 
assessed  only  when  the  cause  of  action  is  complete 
In  the  case  of  a  continuous  cause  of  action  a  suit 
for  damages  will  lie  every  time  damages  accrue 
from  the  act,  but  prospective  damages  are  not  re- 
coverable, for  the  cause  of  action  is  not  the  act  but 
the  damage  arising  therefrom. 

A  suit,  therefore,  for  mesne  profits  as  damages 
against  a  trespasser  in  respect  of  agricultural  land 
is  premature  if  it  is  brought  before  the  end  of  the 
agricultural  year  when  the  crops  are  gathered.  N 
YADO  v.  AMBASHANKAR,  A.  I  R.  1926  Nag.  260  75 

C.  P.  Land  Revenue  Act  (II  of  1917),  s.  220  (p)— 

Sadar    lambardar — Remuneration,  claim  to,    when 

maintainable. 

A  sadar  lambardar  is  not  entitled  to  any  re- 
muneration unless  and  until  he  gets  it  fixed  by  the 
Revenue  Authorities  under  s  220  (p)  of  the  C  P.  Land 
Revenue  Act.  N  ANNANDRAO  v  DAULAT,  22  N.  L,  R.  37; 
A.I.  R.  1926  Nag.  274  909 

C.  P.  Municipal  Act  (XVI  Of   1903),  ss,  24,  66, 

53 — Cow-shed,  whether  building— Application  for 
permission  to  build— Procedure — Meeting  of  members 
to  deal  with  application  for  permission,  whether 
essential— Defect,  whether  curable—Lease  of  nazul 
plot  by  Municipal  Committee  for  purpose  of  build- 
ing— Committee,  whether  can  refuse  to  sanction  con- 
struction 

A  cow- shed  erected  on  posts  and  having  no  founda- 
tions is  a  'building'  within  the  meaning  of  the  word 
as  used  in  the  0  P.  Municipal  Act  of  J903. 

Section  68  of  the  C.  P.  Municipal  Act  of  1903 
refers  to  land  and  houses  which  are  the  property  of 
the  Government  and  can  have  no  application  in  the 
case  of  a  nazul  plot  leased  out  for  a  term  of  years  for 
building  thereon  by  a  private  individual. 

Under  s.  66  of  the  C.  P.  Municipal  Act  of  1903 
a  person  whose  application  to  a  Municipal  Committee 
for  permission  to  build  has  not  been  sanctioned  within 
a  month  of  its  being  made  has  to  remind  the  Com- 
mittee of  this  fact  and  if  after  a  further  period  of  15 
days  no  reply  is  received,  the  Committee  is  to  be 
deemed  to  have  sanctioned  the  proposed  building. 
This  will  not,  however,  entitle  such  person  to  erect 
another  structure  of  an  entirely  different  nature  from 
that  adumbrated  in  his  application  for  permission  to 
build. 

Section  66  of  the  C.  P.  Municipal  Act  of  1903 
contemplates  a  sanction  given  by  the  Committee  or 
Building  Sub-Committee  in  its  corporate  capacity  and 
it  is  not  legal  to  dispense  with  a  meeting  of  the  body 
for  obtaining  a  sanction  by  the  expedient  of  obtaining 
the  opinions  of  individual  members  by  circulating  the 
papers  The  omission  to  call  a  meeting  is  not  curable 
by  s.  24  of  the  Act 

The  lease  of  a  nazul  plot  by  a  Municipal  Committee 
ior  the  purpoae  of  building  thereon  cannot;  supersede 


0.  P.  Municipal  Act  -conoid 

the  statutory  provisions  contained  in  a.  66  of  the  0« 
P.  Municipal  Act  of  1903  relating  to  the  grant  of 
permission  to  build,  and  can  in  no  way  estop  the 
Municipal  Committee  from  refusing  to  allow  any 
building  to  be  erected  on  the  plot  or  insisting  on 
keeping  it  vacant,  on  grounds  relevant  under  Ch.  VI 
of  the  Act.  N  MABOTRAO  v.  MUNICIPAL  COMMITTEE, 
NAGPUR,  A  I.  R.  1926  Nag.  281  796 

C.  P,  Tenancy  Act  (XI    of  1898),  8.  47— "£feW 
land  continuously",  meaning  of— Forcible  disposses- 
sion of  tenant  by  landlord—No  acquiescence  by  tenant 
— Tenancy,  whether  determined. 
The  words  "held   land  continuously"  as  used  in 
s.  47  of  the  C.  P.  Tenancy  Act  of  1898  imply  "held  as  a 
tenant,"  but  not  necessarily  "occupied  or  cultivated." 
The  requirement   of  s  47  is  not   actual  continuous 
possession  as  a  matter  of  fact  but  continuously  hold- 
ing as  a  tenant. 

If  a  tenant  is  ejected  under  a  decree  of  a  Court, 
there  is  a  lawful  ejectment  and  clear  break  in  the 
tenancy,  but  the  mere  fact  of  a  forcible  or  unlawful 
ejectment  does  not  necessarilv  break  the  tenancy 
although  the  tenant  may  have  been  temporarily  out 
of  possession. 

The  mere  ejectment  of  a  tenant  does  not  necessarily 
determine  his  tenancy  which  can  only  be  ended  in 
certain  express  ways,  such  as  those  enunciated  in 
s.  Ill  of  the  Transfer  of  Property  Act. 

A  forcible  ejectment  of  a  tenant  by  the  landlord 
cannot  determine  the  tenancy  unless  there  has  been 
a  subsequent  acquiescence  in  the  ejectment  on  the 
part  of  the  tenant.  N  VITHOIU  z.  SADASHEO,  A.  I.  R. 
1926  Nag  253  58 

C.  P.  Tenancy  Act  (I  of  1920),  ss  2  (11),  4,  Sch. 

II,    Art    1—  Absolute   occupancy    tenant—Suit   for 

possession — Limi  tat  ion. 

Obiter.— Section  2(11)  ands.  4  of  the  C  P.  Tenancy 
Act  of  1920  make  it  clear  that  the  word  "tenant"  in 
Art.  1  of  Sch  II  does  include  an  absolute  occupancy 
tenant  and  the  limitation  for  a  suit  by  such  a  tenant 
for  possession  of  his  holding  is  two  years  and  not 
twelve  years  from  the  date  of  such  dispossession  or 
exclusion  from  possession.  N  SHEOSAHAI  v.  RAMKRISHNA. 
A.  I.  R.  1926  Nag  61  62 
8.  11 — Tenant,  death  of — Distant  heir  of 

deceased  tenant  in    occupation — Malguzar,  whether 

can  eject 

Under  the  C.  P.  Tenancy  Act  a  malguzar  being  in  the 
position  of  the  very  last  reversioner  is  not  entitled  to 
eject  a  distant  heir  of  a  deceased  tenant  on  the  ground 
that  he  has  no  right  to  succeed  to  the  holding  as  there 
are  nearer  heirs  of  the  tenant  in  existence.  N  GAURA 
TELIN  v  SHRIRAM  BHOYHR,  A.  L  R.  1926  Nag.  265  926 
8.11  (2) — Occupancy  holding — Joint  Hindu 

family— Inheritance — Survivorship. 

The  word  "inheritance"  in  s.  11  of  the  C.  P.  Tenancy 
Act  of  1920  does  not  exclude  succession  by  survivor- 
ship. 

An  occupancy  holding  held  by  the  manager  of  * 
joint  Hindu  family  on  behalf  of  the  family  belongs  to 
the  family  and  passes  by  survivorship  and  not  by 


inheritance.   N  BABATI  v.  SUBIT,  A.  I,  R.  1926  Nag. 


916 


8.  104,  Sch.  II,  Artl,  scope  o/— Disposses- 
sion of  tenant   ly  other  than  landlord~"Tenant" 
whether    includes  holder    of  Swvey    Number    in 
Sambalpur  Territory. 
Section  101  and  Art.  1  of  the  Second  Schedule  of  the 

C.  P.^Tenancy  Act  apply  to  all  suits  for  possession  by  * 


GENERAL  INDEX. 


VoL  92] 
0,  P,  Tenancy  Act -1920—contd, 

person  claiming  to  be  a  tenant,  irrespective  of  the  fact 
as  to  whether  the  person  keeping  him  out  of  posses- 
sion is  the  landlord  of  the  village  or  any  other  person, 

The  holder  of  a  Survey  Number  in  the  Sambalpur 
Territory  is  a  "tenant"  within  the  meaning  of  Art.  1 
of  Sch.  II  to  the  C  P  Tenancy  Act  N  MANSARAM  v. 
BUDHU,A  1  R  1926  Nag  289  708- 
Sch.  II,  Art.  1—  "Holding"  whether  includes 

part~-Suit  for  possession  of  part  of  holding— Limi- 
tation. 

The  word  "holding"  in  Art  1  of  Sch  II  to  the  C  P. 
Tenancy  Act,  includes  a  part  of  a  holding  and  a  suit 
for  possession  of  a  part  of  a  holding  must,  theiefore, 
be  brought  within  two  years  of  the  date  of  disposses- 
sion or  exclusion  from  possession  N  THAKUR  SINGH 
v.  SONKUAR  824 

C633  Act  (IX  B.  C.  Of  1880),  8.  95— Road  cess 

return,  admmibility  of,  in  favour  of  party    filing 

return 

Section  95  of  the  Cess  Act  is  absolute  in  its  terms 
in  declaring  that  a  road  cess  return  shall  not  be 
admissible  in  evidence  in  favour  of  the  person  on 
whose  behalf  it  was  filed,  it  is  immaterial  whether  it 
is  sought  to  be  put  in.  evidence  directly  to  prove  an 
admission  or  indirectly  for  some  other  purpose 
C  RAM  KUMAR  DAS  v  H\RANARAIN  DAS  104 

Charge,  creation  of  See  EXECUTION  OF  DECREE  504 

City  of  Rangoon  Municipal  Act  (VI  or  1922), 

83.12,  14— Civil  Procedure  Code  (Act    V  of  1908), 
s  115— Reference  to  Small  Cause  C  out  t — Revision  — 
Agreement     by    Municipal    Councillor    to     supply 
materials  to  Municipal  contractor,  effect  of 
The  High  Court  has  jurisdiction  to  revise  a  deci- 
sion of  the  Chief  Judge  of  th<*  Rangoon  Small  Cause 
Court  given  on  a  reference  under  .s  It  of  the  City  of 
Rangoon  Municipal  Act 

A  Municipal  Councillor  who  was  a  brick  manufac- 
turer contracted  to  supply  blinks  to  a  contractor  to 
whom  the  Municipal  Corporation  had  given  a  contract 
to  build  a  market  There  was  nothing  to  show  that 
when  the  Corporation  gave  th»  building  contract  to 
the  contractor  the  Councillor  knew  that  the  contiact 
for  the  supply  of  bricks  would  fall  to  his  sharp 

Held,  that  the  Municipal  Councillor  was  not  dis- 
qualified by  reason  of  the  contract  for  the  supply 
of  bricks  from  sitting  and  acting  as  a  Councillor. 
R  SHAKUE,  M  A  v  MUNICIPAL  CORPORATION,  A  I  K 
192>  Kang.  367,  4  Bur.  L  J.  161  780 

Civil  liability,  whether  absolves  one  from  Criminal 
liability.    See  PENAL  CODE,  I860,  s  403  585 

Civil  procedure.    See  MALICIOUS  PROSECUTION     366 
— •"--•  Duty  of  Court— Civil  Procedure  Code  (Act  V 
of  1908),  0.  VI,  r  2- -Pleadings,   contents  of —Pleas 
of  law,  whether  can  be  raised 
It  is  the  duty  of  a  Court,  whether  with  or  without 
tho  help  of  the  parties  and  their  Pleaders,  to  discover 
for  itself  and  to  apply  the  law  applicable  to  the  facts 
pleaded  and  proved.    In  a  pleading,   therefore,  facts 
alone  must  be  stated    and  pleas    of  law  must  be  ex- 
cluded 

A  point  of  law,  provided  it  is  a  point  that  can  be 
applied  to  the  facts  proved,  although  it  directly  con- 
tradicts anything  that  may  have  been  said  during  the 
whole  case  about  the  law  applicable  to  those  facts, 
can  be  urged  by  the  parties  at  any  time  before  judg- 
JK  ent  is  pronounced  and  it  can  form  the  basis  of  the 
decision  of  the  case  even  if  it  occurs  only  to  the 
Judge  himself  when  he  is  writing  his  judgment. 
N  GAURA  TBLIN  v.  SKRIRAM  BHOYHR,  A.  I.  R,  1920  Nag 
265  926 


1065 


Civil  procedure  Code  (Act  V  of  1908),  8.2  (H)-~. 

Trustee,  whether  legal   representative  of    preceding 

trustee 

A  trustee  of  an  institution  is  not  a  legal  re- 
presentative of  his  predecessor-m-office  within  thg 
meaning  of  s  2  (11),  C.  P  C  M  THIROMALAI  PILLAI  v 
ARUNACHELLA  PADAYACHI,  A  I  R  1926  Mad  540  52O 

•  -  8.  2  (12)—  Realizations  made  by   person  in 

wrongful  possession—  Decree  for  future  mesne  profits 

from  date  of   suit—  Arrears  of  rent  collected  during 

pendency  oi  suit,  whether  must  be  paid  over—  Profits 

meaning  of  ' 

With  regard  to  collections  in  villages  the    word 

"proiits1'  includes  realisations  of  arrears  of  past  years 

as  well  as  for  current  years 

Defendant  was  in  wrongful  possession  of  plaintiff's 
village  propei  ties  and    made    realisations     Plaintiff 
obtained  a  decree  against  the  defendant   "for  future 
inesne  pioiits  from  the  date  of  the  suit  "    During  the 
period  subsequent   to  the  institution  of  the  suit,  de- 
fendant had  made  collections  of  arrears  of  rent'  for 
past  yeais  and  also  rents  for  the  current  year 

Held,  that   under  the  decree  the  plaintiff  was  en- 
titled to  recovei  whatever  lents  had  been  realised  by 
the  judgment-debtor  in  the  years  m  question  n  res- 
pective of  the  fact  whether  those  were  arrears  of  rent 
for  pi  evious  yeais  or  whether  they  weie  on  account 
of  the  current  year     A  LALLU  SINGH  v  GTJRNARAIN 

768 
------  3.  9—  Jurisdiction  of  Civil  Courts—  Question 

relating  to  caste  property—Division  of  opinion 
among  members  of  caste,  effect  of 
Where  in  a  suit  between  the  members  of  a  caste 
the  question  at  issue  is  not  a  matter  i  elating  to  the 
internal  administration  and  affairs  of  the  caste,  but 
to  the  pioperty  of  the  caste,  a  Civil  Court  has  juris- 
diction to  entertain  the  suit,  and  thm  juiibdietioii  is 
not  excluded  merely  because  there  has  been  a  division 
of  opinion  m  the  caste  B  FULCHAND  MOHANLAL  v 
HARILAL  NANSA,  27  Bom  L  R  1503,  A  J  K  1026  Bom 
69,  50  13  124  549 

------  8,10  (C)  -Place  ofsumfj-Suit  torecorerloan 

—Duly   of  debtor  to  find  and  pay  creditor,  limits  of. 

The  duty  of  a  debtor  to  tind  and  pay  Ins  creditor- 
is  duly  imposed  upon  him  when  the  creditor  is  within 
the  lealm 

Plaintiff,  a  money-lendei  ,  carrying  on  business  m 
British  India,  advanced  a  lean  'to  the  defendant,  a 
resident  of  a  Native  State,  which  was  made  re-payable 
by  instalments  m  the  Native  State  Plaintiff  institut- 
ed n  suit  in  a  British  Court  to  recover  the  loan 

Held,  that  as  no  pait  of  the  obligation  was  assumed 
or  was  to  be  discharged  by  the  defendant  in  British 
India,  the  British  Com  t  had  no  jurisdiction  to  enter- 
tain the  suit  P.  C.  FIRM  OF  R  B  BANSILAL-ABIRCHAND 
v  GutLAM  MAHBUH  KHAM,  AIR  1925  P  0  290  4fl 
M.  L  J.  SCf),  43  C  L  J  1,  23  L  W  3,  24  A  L  J*  48 
(1920)  M  W  N.  10«,  28  Bora.  L  R  211/53  C  88-  20  C 
W  N  577  ' 


-  S3.  10,  11—  Cross-suits  between  principal  and 
agent  —  Stay  of  one  suit  —  Decision  of  other  suit  — 
Res  judicata. 

A  principal  filed  a  suit  against  his  agent  for  the 
recovery  of  a  certain  sum  of  money  alleged  to  be 
due  to  the  former  on  ceitain  tiansactions  entered  into 
bv  the  agent  on  behalf  of  the  principal.  The  agent 
also  instituted  a  suit  against  the  principal  for  a 
certain  sum  of  money  on  similar  grounds  The  latter 
suit  was  stayed  pending  the  decision  of  the  former 
suit.  The  trial  of  the  principal's  suit  was  proceeded 


INDIAN  OASES, 


1066 
Civil  Procedure  Code— 1908— oontd. 

with  and  the  suit  was  dismissed,  the  dismissal  being 
confirmed  on  appeal 

Held,  that  the  decision  of  the  Trial  Court  in  the 
principal's  suit  operated  as  res  judicata  in  the  agent's 
suit  with  regard  to  all  matters  which  were  in  dispute 
inthefoimer  suit  L  SAQHRU  MAL-HAR  CHARAN  DASS 
v.  DIIANPAT  RAI-DIWAN  CHANP,  7  L  L,  J,  420,  A,  I.  R, 
1025  Lah.  596  198 

See  ALSO  RES  JUDICATA. 

See  C  P.  C  ,  1908,  0.  XXIII  385 

8.   11,  co-defendants— Res  judicata  between, 

conditions  of. 

In  order  that  a  decision  should  operate  as  res 
judicata  between  co-defendants  there  must  have  been 
a  conflict  of  interest  between  the  co-defendants,  and 
it  should  have  been  necessary  to  decide  on  that  con- 
flict in  order  to  give  the  plaintiff  relief  appropriate 
to  his  suit  and  the  judgment  must  contain  a 
decision  of  the  question  raised  as  between  the  co- 
defendants  defining  the  rights  and  obligations  of  the 
defendants  inter  se-  R  MA  TOK  v  MA  YIN,  3  R  77,  A. 
L  R  1925  Uang  223  489 

„ _  S.  11  —Decrees  in    connected    suits- -Appeal 

aqainst  only  one  decree-  Decree  nnt   appealed  from, 

whether  res  judicata—  Appeal,  maintainability  of 

Where  two  connected   suits  are    tried  «ind    decided 

together  on    the  same  facts,   but  an    appeal    is  filed 

against  one  decree  only,  the  decree  not  appealed  iiom 

does  not  operate  as  res  judicata  so  as  to  bar  the  hoar- 

ina  the  appeal     M   SINNAJCNA  KONK  v.   MUTHUPALAM 

OHFTTI,  A  I  R  1920  Mad  378  352 

S.11   -Execution  of  decree -Attachment —Ob- 
jection -Question  of  title,  decision  o/— Res  judicata 
A  plot  of  land  was  attached  in  execution  of  a  decree 

Plaintiff  and  defendant  both  tiled  objections  to  the 
attachment  each  alleging  that  he  was  th?  ownei  of 
the  plot.  The  Court  held  that  the  plot  had  been 
purchased  by  the  defendant  fiom  the  Municipality  and 
balonged  to  the  defendant  Plaint ilY  subsequently 
purchased  the  plot  from  the  Municipality  and  Miod 
the  defendant  to  recover  possession  of  the  plot 

Held,  that  although  the  Municipality  was  not  a  party 
to  the  execution  proceedings,  the  question  of  title  to 
the  plot  was  res  judicata  between  the  parties  by 
virtue  of  the  decision  of  the  Executing  Court  L 
MUKUND  LAL  v.  LORINDI  BAT,  7  L  L  J  198  131 

—3,  11—  Mixed  question  of  taw  and  fact—lies 

judicata— Custom,  question  of 

A  decision  on  a  mixed  question  of  law  and  fact 
cannot  be  re-agitated  m  a  subsequent  suit 

The  question  whethei  by  custom  the  right  to  receive 
the  offerings  at  a  shrine  is  alienable  or  not  is  a  mixed 
question  of  law  and  fact.  L  ABDUL  QADIK  v  ILAHI 
BAKHSH.A.I  R  1926  Lah  251  769 

-S.11  — Res  judicata- Decree    confirmed     in 

appeal  on  other  ground. 

Where  in  a  suit  in  ejectment  the  Trial  Court 
holds  that  the  defendants  have  no  right  of  occu- 
pancy but  dismisses  the  suit  on  the  ground  of 
Us  being  instituted  before  the  expiry  of  the  agri- 
cultural year  m  which  the  defendants'  predeces- 
sor died  and  on  appeal  the  decree  of  dismissal  is 
affirmed  on  the  second  ground  but  the  Appellate  Oourt 
gives  no  finding  on  the  question  whether  the  defend- 
ants have  a  right  of  occupancy,  the  decision  of  the 
Trial  Court  that  the  defendants  had  no  occupancy 
rights  cannot  operate  as  res  judicata  in  a  subsequent 


[1926 


Ctvll  Procedure  code— 1908— could, 

suit  for  ejectment.    C  ISWOR  SANT  v.  TORENDBA    NATH 
KUILA,  42  0  L.  J.  560,  A  I  R.  1926  Cal.  163         981 


SS.   11,  Expl.    IV,    39,  42— Execution   of 

decree— Transfer  of  decree— Death  of  decree-holder 
— Legal  representatives  brought  on  record — Order 
confirmed  on  appeal — Objection  by  judgment-debtor 
at  subsequent  stage  to  jurisdiction  of  Court  to  make 
ordey— Res  judicata. 

A  decree  was  transferred  for  execution  to  a  Court 
other  than  the  Court  which  had  passed  it  The  decree- 
holder  thereafter  died  and  the  Court  to  which  the 
decree  had  been  transferred  made  an  order  adding  the 
legal  representatives  of  the  deceased  decree-holder  as 
parties  and  directing  that  execution  should  proceed. 
The  judgment-debtor  appealed  against  the  order,  but 
his  appeal  was  dismissed  He  then  took  the  objection, 
which  he  had  not  taken  in  his  appeal,  that  the  Court 
to  which  the  decree  had  been  transferred  for  execution 
had  no  jurisdiction  to  add  the  legal  representatives  of 
the  deceased  decree-holder  as  parties  to  the  execution 
proceeding  • 

Held,  that  the  objection  must  be  deemed  to  have 
been  decided  adversely  to  the  judgment-debtor  m  the 
appeal  pi ef erred  bv  him  against  the  order,  by  viitue 
of  ths  piovisions  of  Kxpl  IV  to  a  11,  C  P  C  ,  and  was, 
therefore,  res  judicata  M  SEKKHU  MUSTAHU  v  NANI, 
A  I  R  1926  Mad  53*  377 

s.11,  O.    VI,  r.  17—Res  judicata-  Suit  for 

possession  of  whole  property,  dismissal  of— Subsequent 
suit  for  possession   of  share    on   same,  title    whether 
barred  —Partition,  suit  for — Amendment  of  plaint 
Where  a  suit  for  recovery  of  posces.sion  of  the  whole 
of  a  certain  property    bat>ed  on  a  claim  of  sole  ownei- 
ship  is  dismissed,  a  subsequent  suit  based  on  the  stune 
claim  of  sole  ownership  but   to  recover  only  a  portion 
thereof  will  be  barred  by  ies  jvduaia, 

Where,  however,  the  plaintiff  has  a  cause  of  action 
for  asking  for  partition  of  his  admitted  thai e  on  the 
giound  of  oo-ownerblup,  the  plaint  may,  in  a  proper 
case,  he  allowed  to  be  amended  so  as  to  convert  the 
suit  into  une  for  partition  M  SULTAN  ABDUL  KAIMR  v 
MOHAMMAD  l<:sLF>2.J  L  W.  408  396 

3.11,   O.  XXXIV,    r.    Q~Redemp1inn    suit— 

Decree  batted  on  compromise — Default  in  payment 
--tiecondtuit  for  redemption,  whether  maintainable. 
A  decree  pac<?eJ  111  a  redemption  suit  on  the  basis 
of  a  compromise  provided  that  on  payment  of  a 
certain,  sum  to  the  defendant  within  one  month  of 
the  date  of  the  compromise  the  plaintiff  would  be 
entitled  to  get  the  property  redeemed  and  to  bo  put 
in  possession  and  that  after  the  expiry  of  the  fixed 
period  he  would  bo  entitled  to  execute  the  decree  on 
payment  of  the  sum  mentioned  in  the  decree  Plaint- 
iff failed  to  pay  the  amount  within  the  time  mentioned 
in  the  decree  and  failed  to  apply  for  execution  of  the 
decree  within  three  years  of  its  date  He  subsequent- 
ly brought  a  second  suit  for  redemption  of  the  same 
property . 

Held,  that  inasmuch  as  the  first  decree  did  not 
provide  that  the  plaintiff's  right  to  redeem  was  to  be 
extinguished  absolutely  in  case  of  default  of  payment 
he  was  not  prevented  from  bringing  a  second  suit  for 
redemption  and  that  the  defendant  was  still  a  mort- 
gagee and  had  not  become  absolute  proprietor  of  the 
property  A  MOHAUDI  BEOAM  v.  TUPAIL  HASAN,  23  A. 
L.  J  888;  AIR  1926  All  20;  48  A  17  260 

—  3,    13— Foreign     judgment- Submission  *to 

jurisdiction  of  foreign    Court — Power-of-attorney  to 
appear ,  whether  amounts  fa  submission — Person  in- 


GENERAL  INDEX. 


VoL92] 
Civil  Procedure  Code— 1908-  contd. 


yoking  jurisdiction  of  Foreign  Court  as  plaintiff— 
Subsequent    denial    of    jurisdiction— E8toppd~~"&x 
parte  foreign  decree,  whether  decision  on  merits 
The  execution  by  a  person  of   a  power-of-attorney 
authorising  his  agent  to  appear  and  conduct  for  him 
litigation  in  a  Foreign  Court  amounts  to   submission 
to  the  jurisdiction  of  such  Court 

A  person  who  as  plaintiff  invokes  the  juiisdiction 
of  a  Foreign  Court  cannot  afterwards  be  allowed  to 
deny  the  jurisdiction  of  such  Court  as  a  defendant 
An  ex  parte  decree  obtained  in  Foreign  Court  must 
be  deemed  to  be  a  decree  passed  upon  the  merits  when 
there  has  been  no  appearance  by  the  defendant  M 
ASANALLI  NAGOOR  v  MAHADU  MEER\,  22  L  W  820,  A  T 
R  1026  Mad  259  491 

81  20 — Suit  by  commission  ayent -Juris- 
diction 

A  suit  by  a  commission  agent  against  his  principal 
for  balance  due  on  accounts  can  be  entertained  by  a 
Court  having  jurisdiction  at  the  place  where,  in  com- 
pliance with  the  principal's  ordeis,  the  commission 
is  executed  L  HAZUBA  HAL  LAL  CHAND  v  RANG  ILAHI 

273 

S.  20  (C) — Place  of  su ing—  Suit  for  dissolu- 
tion of  partnership— Business  carried  on  at  several 
places 

Where  a  partnership  business  is  carried  on  at  two 
places,  the  cause  of  action  for  a  suit  for  dissolution  of 
the  partnership  arises  in  both  the  places  and  the 
(Courts  in  either  of  them  have  innsdiction  to  enter- 
tain the  suit  M  GUIHTTHUIUT  THIMMAPPA  v.  BALA- 
KRISHNA  MUDALTAR,  23  L  W.  361,  50  M  L  J  298,  A  T 
R  1926  Mad  427  915 

—  _ — mgt    20    (C)— Stnt   to  leaver    loan    Place  of 

suing 

In  the  absence  of  a  contract  to  the  contraiv  it  is 
the  duty  of  the  borrower  to  seek  out  the  lendei  for 
payment  In  such  a  c^ise  the  monev  is  payable  at  the 
place  where  the  lender  resides  or  can  les  on  business 
and  a  suit  for  the  ieco\ery  of  the  monov  mny,  thniefoie, 
be  brought  at  such  place  A  C»O\IL  DAS  v  NATHV  24 
A  L  J  291  492 
S.  36  See  C  P  0  , 1908,  0  XII,  n  6  562 

8.  37  (d)  -Decree  passed  by  Court  of  Addi- 
tional Subordinate  Judqe — Court  abolished  tempo- 
ranly  and  re-cstabliithed— Juiisdiction  to  execute 
decree. 

A  d^ciee  was  passed  by  the  Couit  of  the  Additional 
Subordinate  Judge  and  shortly  afterwaids  the  Court 
was  abolished  and  the  woik  of  that  Couit  was  trans- 
ferred to  another  Court  After  a  biief  interval,  how- 
ever, the  Court  of  the  Additional  Subordinate  Judge 
was  re-established  and  an  application  to  execute  the 
decree  was  made  to  that  Court 

Held,  that  by  virtue  of  the  provision  contained  in 
aub-a  (6)  of  s  37  of  the  C  P  C  the  Court  of  the 
Additional  Subordinate  Judge  had  jurisdiction  to 
execute  the  decree  Pat  BIBI  KHODAIJATUL  KUBRA  v 
HARTHAB  MISSIR,  4  Pat  688,  7  P.  L  T.  333,  A,  I  R.  199^ 
Pat.  209  90~o 

88,   39,42,    46— Transfer  of    decree  for 

execution— Court  to  which  decree    transferred)  whe- 
ther can  issue  precept. 

A  Court  ^to  which  a  decree  haa  been  transferred  for 
execution  is  not  competent  to  issue  a  precept  under 
s.  46  of  the  0  P  C  8.  LANGLEY  BILLTMORIA  v,  FIRM  OF 
LAKHMICHANE-GOPALDAB  621 


1067 


Civil  Procedure  Code— 1908— contd, 


s.  47. 

See  0.  P.  0  ,  1908,  0,  XXI,  R.  86  644 

See  C  P  C  ,  1908,  O.  XXI,  R.  98  544 

See  C  P.  C  ,  1908,  0  XXXII,  R,  3  241 

8.  47  —  Execution  of  decree — Death  of  decree- 
holder — Legal    representative,     determination    of — 
Procedure — Hindu  Law — Separated  brother,  whether 
legal  tepresentative  in  presence  of  widow 
When  a  decree-holder  has  died  and  some  person 
appears  asking  to  be  allowed  to  execute  the  decree  as 
the  legal  repiesentative  of  the  deceased  decree-holder, 
the  Executing  Court  itself  should  under  s  47   of  the 
C  P    C    decide  who   the  legal  representative  of  the 
deceased  decree-holder  is  and  should   not  refer  the 
applicant  to  separate  proceedings 

If  the  person  who  claims  to  be  the  legal  represen- 
tative of  the  deceased  decree-holder  pioduces  a  Pio- 
bate  or  Letters  of  Admimstiation  01  any  such  geneml 
conclusive  pi  oof  of  his  status,  the  Couit  need  not  go 
further  and  should  accept  that  as  conclusive,  but  if 
there  is  no  such  evidence,  the  Executing  Court  itself 
should  make  an  inquiry  and  come  to  a  decision 

Wheie  a  separated  Hindu  dies  lea\mg  a  widow  hia 
brother  cannot  be  regarded  as  his  legal  repiesenta- 
tive and  cannot  be  allowed  to  execute  a  deciee  ob- 
tained by  the  deceased  S  PARUMAL  THAWERDAS  v 
MVKHAX,  A  LR  1926  Sind  113  575 

8.  47,  O.  XXI,  rr.  57,  64,  90 --Execution  nf 

decree-— Sale  without  attachment,  lalidittj  of — 
Application  to  stay  sale  &?/  reason  of  want  of 
existing  attachment,  dismissal  of— Appeal,  whether 
lies 

Per  Sptiicir,  J  —An  order  of  an  Executing  Court 
dismissing  an  application  by  a  judgment-debtoi  to 
stay  an  auction  «aie  m  execution  of  a  money-decree  on 
the" ground  that  there  is  no  subsisting  attachment  on 
the.  pioperty,  is  of  an  interlocutory  nature  and  is  not 
appealable 

\Vheie  the   sale    has    taken  place,    the    judgment- 
debtor's  lemedv  lies  in  applying  to    the  Couit  under 
i     <x()  of  (3    XXI,  C  P  C  ,  to  have  the  sale  set  abidt, 
MSrBRAMAN'uAnxRv  KRISHNA  hLR,  (1025)  M  W.N 
887,  A  I  R  1926  Mad  ill  833 

S.  48,    O    IX,    r.  13  -Moitgaqc-decrec    both 

affainrt  pet  90??  avd  p,  operty  of  morttjctfjor — Execution 
of  dcc.cc  against  person-  limitation-  Execution  of 
decree— Ite  paito  order— Application  to  set  aside 
order --Limitation 

A  Court  is  not  justified  m  setting  aside  an  ex  paite 
order  passed  m  an  execution  proceeding  on  an  appli- 
cation made  more  than  30  days  after  the  judgment- 
debtor  became  aware  of  such  order  against  him 

Wheie  a  combined  mortgage-decree  gives  relief 
against  the  pioperty  as  well  as  tho  person  of  the 
rnoi  t£?agoi ,  the  time  for  execution  against  the  person 
should  be  calculated  from  the  date  of  the  decree  and 
not  fiom  the  date  of  the  mortgagee  failing  to  get  relief 
by  sale  of  the  property  M  SWAMINATHA  ODAYAR  v 
THIAGARAJASWAMI  ODAYAB,  23  L  W  26,  (1926)  M  W  N 
HO  846 

—  S*  60.   See  PROVINCIAL  INSOLVENCY  ACT,  1920 

s  28  673 

8.  GO— "Agriculturist",  who  is  -  Kxemption  of 

house,  from  sale 

Koi  deciding  the  question  of  the  exemption  of  the 
liabihtv  of  the  housa  of  an  insolvent  to  be  sold  for 
debts,  the  Coin  t  must  decide  whether  the  insolvent's 
chief  means  of  livelihood  is  aguculture.  It  13  not 
enough  that  he  be  an  agriculturist,  or  that  he  l?e  a 


INDIAN  OASBS, 


IOCS 
Olvll  Procedure  Code— 1908-contd. 

trader.    The  point  is,  which  profession  forms  his  chief 

means  of    livelihood.    M   PEYYETY  GOPALAM  QABU  v, 

ADUSUMILLYGOPALAKRISHNAYYA  416 

Q.  60  (C) — House    of  agriculturist  in  city — 

Exemption   from  attachment— Occupation,  meaning 

A  house  of  an  agriculturist  in  a  city  in  which  he 
spends  his  nights  and  to  which  he  brings  his  cattle 
every  night  from  the  lands  cultivated  by  him,  is 
exempt  from  attachment,  notwithstanding  the  fact 
that  he  owns  two  other  houses  on  his  lands  expressly 
meant  to  be  used  for  agricultural  purposes. 

The  woids  "occupied  by"  in  s  (50  (c),  C  P  C.,  mean 
"lived  in  by"  or  "used  for  agricultuial  purposes  by." 
L  Noon  DIN  v.  SULAKHAN  MAL  A,  1  H.  i&>6  Lah.  230 

759 
S,  60  (C)— Provincial  Insolvency  Act  (V  of 

3920),  8.    2S   (5) —Agriculturist,     who    is— 'House 

occupied  by  agriculturist;   meaning  of. 

The  word  'agriculturist'  in  s  60  (C),  C  P  0  ,  is  not 
used  in  its  etymological  sense,  it  is  used  to  denote  a 
person  making  his  living  by  tilling  the  soil,  in  other 
words,  one  whose  sole  means  of  livelihood  is  gained 
by  cultivating  land  and  does  not  necessarily  mean  only 
a  person  who  works  with  his  hands.  The  protection 
from  attachment  under  the  clause  is  given  only  to 
small  owners  of  land  as  well  aa  actual  tillers  of  the 

soil  ,        -,    , 

A  large  landed  proprietor,  even  though  his  sole 
income  is  from  land,  is  not  an  "agriculturist"  \vithm 
the  meaning  of  s  60  (c),  C  P  C  ,  and  is  not  entitled  to 
protection  thereunder  TV, 

The  exemption  from  attachment  under  ol  (c)  of 
B  60,  C  P  C  ,  is  given  in  respect  of  a  house  or  build- 
ing occupied  by  an  agriculturist,  i  e  ,  a  house  d  \velt  in 
by  the  agriculturist  as  such,  and  necessary  foi  his 
elfec'tively  pursuing  his  occupation  as  an  agiK*ulturist. 

A  mansion  in  a  large  village  m  which  the  owner 
lives,  even  though  he  has  no  other  souice  of  income 
except  that  from  laud,  is  not  «uch  a  house  as  is  con- 
templated by  cl  (c)  of  s  C>(),  C  P  G  ,  nor  is  the  house 
of  an  ordinary  agncnltuiibt  situated  at  a  consider- 
able distance  from  the  land  which  he  cultivates  and 
which  is  not.  neee3s«try  for  effective  or  convenient 
cultivation  of  the  land.  IYI  MUTHUVB\KATARAMAH»I>DUK 
J  OFFICIAL  RECEIVE,  50  M  L  J.  90,  49  M.2J7,  A  1  K. 
1926  Mad.  350  398 
8.  60,  0.  XXXVIII,  r.  6~Money  payable  on 

particular  event  -  Interest,  provision  for  payment  of 

—Right,  whether  vested  or  contingent. 

Per  Venkatasubba  Rao  and  Reilly,  JJ,— Where  a 
partition  deed  between  Land  R  piovided  that  the 
money  which  fell  to  1/8  share  wab  to  be  retained  by 
R  who  was  to  pay  it  to  L  at  his  marriage  with  interest 
at  a  fixed  rate 

Held,  that  /./s  interest  was  a  vested  mtereet  and  not, 
a  contingent  one  and  it  was  attachable  under  s.  60  and 
r  6  of  O.  XXX^^I1I,   C.   P   C.,  aa  a  debt    due    to  him, 
though  on  that  date  he  could  not  enforce  payment  of  it. 

Per  Venkatasubba  Rao,  J.— If  a  gift  and  direction 
as  to  payment  are  distinct,  the  direction  a&  to  the 
time  of  payment  does  not  postpone  the  vesting.  M 
ALAGIRISAMI  PILLAI  v  LAKSMANAN  CHETTY,  50  M.  L.  J. 
79,  A.  IK.  1926  Mad.  371  1021 
S.  64  —Attachment— Property  sold  by 

mdgment-debtor      before      attachment — Conveyance 

executed  during  attachment,  effect  of, 

What  is  aimed  at  in  s.  64,  C  P.  C  ,  is  the  transfer 
of  a  beneficial  interest,  delivery  of  property  or  any 
payment. 


Civil  Procedure  Oode-1908-contd. 

Where  a  judgment-debtor  sells  certain  property, 
receives  the  purchase-money  and  hands  over  posses- 
sion of  the  property  to  the  purchaser  before  the  pro- 
party  is  attached,  but  the  sale-deed  is  executed  after 
the  attachment  is  made,  the  transaction  is  not  brought 
within  the  purview  of  s.  64,  C.  P.  0  ,  inasmuch  as  at 
the  date  of  attachment  there  was  no  benencidl  inteiest 
in  the  propei  ty  left  in  the  judgment-debtor,  he  being 
at  most  possessed  of  the  bare  legal  title  which  he  v  aa 
bound  to  convey  on  demand  to  the  purchaser.  R 
MAUNG  SAN  PWE  v.  HAMADANEE,  A.  1  R.  1^25  Rang.  382; 
4  Bur.  L.  J.  166  777 
3.  66 — Benami  auction-purchase — Declara- 
tion, suit  for,  whether  maintainable. 

A  suit  for  a  declaration  equally  with  a  suit  for 
possession  is  within  the  ambit  of  s  615,  C,  P.  0.  Theie- 
fore,  a  suit  for  declaration  that  a  cei  tilled  purchaser  at 
a  Couit  sale  is  only  an  ostensible  puichaser  and  that 
the  purchase  was  effected  as  plamtiil's  ag«  nt  is  barred 
by  the  provisions  of  the  section  C  I  MASASI  DEBI  v. 
AKRUR  CHANDRA  MAZITMDAR,  30  0.  W.  N.  Itfu,  A  1.  R. 
1926  Cal  542,  53  C  297  984 
Si  68 — Sample  money  decree,  whether  can  be 

transferred  for  execution  to  Collector. 

Where  no  immoveable  property  has  been  directed 
to  be  sold  in  execution  of  a  simple  money  decree,  the 
deciee  cannot  be  transferred  lor  execution  to  the 
Collector  under  s.  68,  O  P  C.  0  JANG  BAHADUR  v. 
JAP, AT  NARAIN,  A.  I  R.  192G  Oudh  318  906 
SS.  68,  70—  Execution  of  decree — Dtcree 

transferred    to  Collector   for    execution— Order    of 

Collector— Appeal— Revision. 

Under  the  rules  flamed  by  the  V  P.  Local  Go\ern- 
ment  under  s  70(1),  0.  P  0,  no  appeal  lies  to  the 
Chief  Court  against  an  order  pateed  by  a  Collector  in 
dischaige  of  his  powers  m  the  execution  of  a  decree 
tmnsf  cried  to  him  for  execution  under  s.  68  cf  the 
Code  Under  s  70  (2)  of  the  Code,  therefoie,  the  Chief 
Couit,  can  exercise  neither  appellate  nor  revinonal 
jurisdiction  m  respect  of  such  an  order  O  BASANT  RAI 
BHANDAUI  v  SALIK  RAM,  A.  I  R  1926  Oudh  ^8  549 
— S.  91  Building  over  puUic  street— Nuisance 

—  Suit  for  remnial-  procedure 

Building  over  any  part  of  a  public  street  or  space 
constitutes  a  nuisance 

In  ordei  to  file  a  suit  on  behalf  of  the  public  for 
the  removal  of  a  building  over  a  public  bpace,  the 
preliminary  steps  under  s  J)l  of  the  C  P.  C  must  be 
taken,  before  the  suit  can  be  maintained.  N  BARKOO 
v  AT \IARAM  818 
S,  92—  Muhammadan  mosque — Scheme  suit 

-  -Woi xkippers, right  of — "Interest  in  trual'\  meaning 

of — Residence    in    neighbourhood    without  habitual 

worship,  whether  sufficient. 

The  interest  in  a  public  trust  for  the  purposes  of  a 
suit  under  s  92,  O.  P.  0.,  must  be  clear,  present  and 
substantial  and  not  remote  and  fictitious  or  purely 
illusory  or  a  mere  contingency.  Beyond  that,  the 
question  is  one  of  fact,  and  must  be  left  to  the  Court 
to  be  decided  on  a  consideration  of  the  particular 
circumstances  of  each  case. 

Persons  who  reside  m  the  neighbourhood  of  a 
mosque  without  being  habitual  worshippers  in  it  or 
in  any  manner  specially  interested  in  it,  although  aa 
Muhammadans  they  may  have  a  right  to  offer  prayers 
therein,  do  not  possess  sufficient  "interest  in  the 
trust"  within  the  meaning  of  s,  92,  0.  P.  0.,  to  entitle 
them  to  institute  a  suit  under  the  section.  M  DOST 
MUHAMMAD  v.  KADAR  BATCHA,  23  L.  W.  240;  A.  L  R* 
1026  Mad.  466  950 


Vol.  &2] 


GENERAL  INDEX, 


1060 


Civil  P rocedure  Code— 1908— contci, 

8,  92— Religious  endowment— Alienation  of 

trust  properties  by  trustee — Suit  to  recover  propel  ties 

—  Procedure 

The  founder  of  a  religious  trust  appointed  himself 
astiujfcoe  thereof  during  his  lifetime  and  his  heirs 
af  er  his  death,  and  his  widow,  who  succeeded  him. 
in  th  trusteeship  after  his  death,  alienated  piopeities 
telj  ±gmg  to  the  trust  In  a  suit  by  tho  next  rever- 
sions to  set  aside  the  alienation  and  to  recover  the 
property 

Held,  that  the  suit  was  not  maintainable  and  that 
the  proper  course  was  for  the  plaintiff,  together  with 
one  or  more  interested  persons,  after  obtaining  the 
required  sanction  under  s  92,  C  P  0 ,  to  sue  for  the 
widow's  removal  from  the  trusteeship,  and  for  appoint- 
ment of  himself  or  some  other  fit  person  to  be  trustee 
in  her  place,  and  that  the  person  \\ho  so  became 
trustee  might  then  sue  on  behalf  of  the  trust  foi  the 
recovery  of  the.  pioperty  improperly  diverted  from 
trust  purposes  M  KAMASAMI  GOUNDAN  v  ALAGIA. 

SlNGAPERUMAL  KADAVUL,  22  L    W     701,  U^)  M    W    N 

117,  50  M  L.  J  42,  A  1,  K  1926  Mad  280  823 

3.92,    sail  under—  Damaye?  for  misconduct 

of  trustee 

Although  in  a  suit  under  s  92,  C  P  C  ,  a  decree 
may  be  passed  against  a  trustee  in  ofiice  to  account 
for  tho  income  ot  the  property  in  his  possession,  d, 
claim  foi  a  specific  sum  111  damages  on  account  of 
loss  to  the  tiusfc  by  the  misconduct  of  the  trustee 
is  not  one  of  the  reliefs  falling  within  the  scope  of 
the  section  M  PERIA  NAMJU  SRINIVA^A  CIIARIAH  v 
KUNARAMASAMY  NAicKhR,  A  I  R  11)26  Mad  509  526 

83.     92,  47— Scheme   framed   by    Coutt  - 

Order  in  pursuance  of  scheme — Appeal,  whether  Iwtt 
— Trustee,  removal  of,  not  provided  for  in  scheme — 
Procedure 

An  order  made  by  a  Court  m  the  exercise  of  a  power 
giveu  to  it  by  a  provision  in  a  scheme  framed  m  a 
suit  under  s  1)2,  C  P  0  ,  is  not  an  order  made  m  exe- 
cution and  is  not  appealable  under  s,  47  of  the  Code 
lii  the  absence  of  any  piovision  in  a  scheme  for  the 
removal  of  a  trustee,  a  separate  suit  must  be  brought 
for  the  purpose,  M  Si  VAX  PILLAI  v  VKNKATESWABA 
IYBK,  22  L.  W,  796,  A  I,  K  1926  Mad.  130  556 

SS.  94, 151,  0.  XXXIX,  rr.  1,  2— Injunction, 

restraining   execution   of  decree,     whether   can  be 

granted — Inherent  power  of  Court 

On  an  application  in  a  pending  suit  by  the  plaint- 
iff for  an  injunction  restraining  the  execution  of  a 
decree  obtained  by  the  defendant  against  the  plaintiffs 
father: 

Held,  that  the  Court  had  no  jurisdiction  to  grant 
the  injunction  either  under  O  XXXIX,  or  under  s.  94 
ors  131,  0.  P  C, 

When  the  0.  P.  0.  makes  provision  for  a  certain 
procedure  it  must  be  deemed  to  be  exhaustive  in  that 
respect  and  the  provisions  of  s.  151  of  the  Code  can- 
not be  invoked  in  opposition  to  those  provisions. 

Under  s.  94,  C.  P  C  ,  tho  Court  is  given  power  to 
issue  injunctions  provided  the  rules  make  provision 
for  the  exercise  of  that  power  The  rules  are  contained 
in  0.  XXXIX  of  the  Code  and  s,  94  must,  therefore,  bo 
read  subject  to  the  rules  contained  in  that  Order.  M 
VADAPALLI  VARADAOHARYULU  v  KHANDAVILLI  NARASIMHA- 
OHARYULU,  (1925;  M,  W.  N.  886;  23  L.  W.  85,  A,  L  K. 
1926  Mad.  258  615 

»*  ••••••  97— Preli minqry  decree— Appeal— Final 

Decree  pwed"  during  pendency  of  appeal— Procedure. 


Civil  Procedure  Code— 1908— contd. 

When  an  appeal  ia  filed  against  a  preliminary  dec- 
ree, but  no  stay  of  proceedings  is  asked  for,  and  a 
iinal  decree  is  passed  by  the  Trial  Court  during  the 
pendency  of  the  appeal  against  the  prelimmaiy  dec- 
ice,  the  proper  course  for  the  appellant  m  such  a 
case  is  to  put  an  appeal  on  the  file  against  the  nnal 
decree,  or  at  least  to  infoim  the  Appellate  Court, 
when  the  appeal  against  the  pielunmary  decree  comes 
on  for  heaiiug,  that  a  nnal  deciee  has  been  passed. 
B  CHANDULAL  MAGANLAL  v  MOTILAL  HARILAL,  27  Bom. 
L  K  1492,  A  I  R  lM6Bom  43  545 

3,104  (f),0  XXIII,  r.  3,0.  XLIII.r.l  (m), 

Sch,  II,    paras.    20,     2\-Arbitiation-  Award— 

Decree     on         awaid— Appeal — Remand  — Appeal, 

second,  whether  lies 

During  the  pendency  of  a  suit  the  plaintiff  made 
what  purported  to  be  an  application  under  para  20 
of  Sch  II,  C  P  0  ,  stating  that  the  matter  m  suit 
had  been  lefened  to  arbitration  and  that  an  award 
had  been  made  and  requesting  that  the  awaid  may  be 
filed  and  a  decree  passed  m  accordance  with  it 
Defendant  filed  objections  denying  any  valid  refer- 
ence to  arbitiation  or  the  making  of  any  valid  avvaid 
The  Court  took  evidence  and  decided  that  a  valid 
refeience  and  a  valid  awaid  had  been  made  and 
passed  a  decree  in  terms  of  the  a\vraid  On  appeal 
the  lowei  Appellate  Court  held  that  no  award  had 
been  made  and  remanded  the  case  to  the  iiist  Court 
for  trial  according  to  law  On  second  appeal  by 
the  plaintiff 

Held,  (1)  that  the  order  of  the  Tiial  Co  art  although 
inform  a  deciee,  must  be  tieated  as  an  order  direct- 
ing that  the  award  be  filed,  and  that  as  such  it  was 
open  to  appeal, 

(2)  that  even  if  it  was  regarded  as  an  order  record- 
ing a  compromise  it  was  still  an  order  open  to 
appeal, 

(.fy  that  the  appeal  preferred  by  the  defendant  to 
the  lower  Appellate  Court  must,  therefoie,  be  treated 
as  an  appeal  from  an  order,  with  the  result  that  no 
second  appeal  was  competent  A  MUMTA^  ALI  v.  ALLAH 
BANDA  600 

3.  109  —"Final  order",  meaning    of— Inter- 
locutory older — Appeal  to  Privy  Council  " 
The  words  "final  oider"in  a  109,  C  P,  C ,  are  used 
m  their  ordinary  sensa     They  mean   an  order  which 
puts  to  an  end  a  litigation  between  paities,  or  at  all 
events   disposes   so  substantially  of   the   matters  in 
issue  between  them  as   to  leave  only  suboidmate  or 
ancillary  matters  for  decision. 

The  order  by  which  a  Court  sets  aside  a  compromise 
of  a  suit  is  an  interlocutory  and  not  a  final  order. 

Appeals  on  matters  interlocutory  in  their  nature 
should  be  allowed  to  be  preferred  to  His  Majesty  m 
Council  only  when  their  decision  will  pi  actically  put 
an  end  to  the  litigation  and  finally  decide  the  rights 
of  the  pai  ties,  ABHAQWATI  DAYALV.  DHAN  KUNWAK, 
24  A.  L  J,  Sett;  A.  L  B.  192G  All.  311  1027 

-8.109 — Substantial  question  of  law—Certifa 

cate  for  appeal  to  Privy  CounciL 
Where  there  is  a  decision  of  the  Privy  Council  itself 
which  seema  to  settle  the  law  on  a  point,  the  case  can- 
not be  certified  as  a  fit  one  for  appeal  to  the  Pi  ivy 
Council  as  involving  a  substantial  question  of  law.  A 
KAGHUBIR  SINGH  v  NATHU  MAL  1013 

•  S.  110— Appeal  to  Privy  Council— High  Court 

maintaining  decree  of  lower  Court—Leave,  when  can 
be  granttd~Sub*tantial  question  of  law-rHindu  Law , 


1070 


INDIAN  OASES. 


[1926 


Civil  Procedure  Code— 1908— contd, 

— Compromise     entered  into    by    father ,    whether 

binding  on  son. 

When  the  High  Court  maintains  the  decree  of  a  lower 
Court  it  affirms  the  decision  of  the  lower  Coui  t  within 
the  meaning  of  s  110  of  the  C.  P.  0  ,  even  though  the 
two  Courts  differ  in  their  findings  on  certain  issues 
Leave  to  appeal  to  the  Privy  Council  in  such  a  case 
can  be  granted  only  if  there  is  a  substantial  question 
of  law  involved  in  the  case. 

A  substantial  question  of  law  within  the  meaning 
of  s,  110  of  the  C.  P.  C  means  a  question  of  law 
in  respect  of  which  there  may  be  u  difference  of 
opinion 

The  general  principle  that  a  Hindu  bon  is  bound  by 
a  bonafide  compromise  entered  into  by  his  father  for 
the  benefit  of  the  family  is  well-settled  and  is  not  a 
substantial  question  of  law  within  the  meaning  of 
s.  110  of  the  O.  P.  C.  LDHAXPATltAi  v.  KAHAN  SINGH, 
2  L.  C.  107  479 

S.115. 

See  AGRA  TENANCY  ACT,  1901,  ss  175, 177  282 

tiee  CITY  OF  RANGOON  MUNICIPAL  ACT,  1922,  FS  12,  14 

780 

See  0.  P.  C  ,  1908,  0.  IX,  u.  13  776 

See  C  P.  C  ,  1908,  O.  XXI,  KR  13,  17  109 

See  C  P.  C  ,  1908,  O.  XXI,  B  UO  567 

See  C  P  C  ,  1908,  O  XXIII,  R  1  1030 

See  C  P.  C  ,  1908,  O  XXX11I,  R  1  41 5 

Sec  C  P  C  ,  1908,  O  XLI,  R.  25  555 

S&e  (J*  P  C.,  1898,  s  476  B  454 

See  SPECIFIC  BELIEF  ACT,  1877,  s.  9  20 

8,    115— Election  rules,  misconstruction  of. 

See  MADRAS  DISTRICT  MUNICIPALITIES  Acr,  1920    119 

3. 1 1 5 — Ei  ror  of  law. 

An  error  of  law  does  not  affect  the  jurisdiction  of 
the  Court  and  does  not  furnish  a  ground  for  inter- 
ference in  revision  Pat  BALARAM  A/ANJUI  v.  JAGAN- 
NATH  MANJHI,  A  I.  R.  1925  Pat.  760  684 

.  — 8.  115 — Execution  of  decree — Stay  pro* 
ceedings,  failure  of— Decree-holder  ordered  to  take 
out  execution  at  once— Talbana,  deposit  of— Reason- 
able time  for  filing  processes— Execution  case,  dis* 
missal  of,  for  default— Illegal  exercise  of  juris- 
diction— Revision. 

Stay  of  execution  of  a  decree  was  directed  by  the 
Court  on  the  judgment-debtor  furnishing  security  by 
a  specified  date.  The  judgment -debtor  failed  to  furnish 
security  on  that  date,  aad  the  Court  directed  the 
decree-holder  to  take  steps  for  execution  at  onco.  Tho 
decree-holder  deposited  talbana  for  service  of  sale 
proclamation  on  the  same  day  but  did  not  file  the 
processes,  and  the  Court  dismissed  the  execution  case 
for  default  there  and  then.  On  revision  : 

Held,  that  the  Court  exercised  its  jurisdiction 
illegally  in  not  allowing  the  decree-holder  reasonable 
time  for  filing  processes,  as  he  could  not  have  been 
expected  to  be  ready  with  the  processes  on  the  ex- 
pectation that  the  judgment-cfebtor  would  fail  to 
furnish  security,  and  that,  therefore,  the  dismibsal  of 
the  execution  case  for  default  must  be  set  aside. 
C  FIRM  OF  RAM  PROSAD-RAM  KISSBN  v.  HARO  KUMAR 
BABAK  298 

•— • 8, 11 5 — Interference  by  High  Court. 

The  High  Court  has  power  to  interfere  with  the 
proceedings  of  a  lower  Court  even  in  the  case  of  an 
interlocutory  order  where  the  effect  of  that  interlocu- 
tory order  is  not  meiely  to  prescribe  a  particular 
procedure,  to  admit  or  to  shut  out  a  particular  piece 
9!  evidence  or  to  admit  or  exclude  particular  partiea, 


Civil  Procedure  Code— 1908— contd. 

Where  the  Court  against  whose  orders  there  is  an 
application  for  revision  has  so  used  its  jurisdiction 
that  the  result  of  allowing  its  order  to  stand  will  be 
definitely  to  decide  the  case  pending  before  it,  so  that 
all  the  proceedings  thereafter  taken  would  be  merely 
infructuons  and  would  result  in  a  waste  of  time,  then 
the  High  Court  will  look  into  the  order  and  if  justice 
lequires  it  will  set  it  aside  8  MUNICIPALITY  OF  TANDO 
ADAM  v.  KHAIR  MAHOMED,  A,  I.  R.  1925  Smd.  260  1019 


8.115 — Letters  of  Administration,  grant   of, 

by    Resident    at    Aden — Revision  —Jurisdiction     of 

Bombay  High  Court. 

The  Bombay  High  Court  has  no  jurisdiction  to 
interfere  in  revision  with  an  appealable  order  of  the 
Resident's  Court  at  Aden. 

An  order  granting  Letters  of  Administration  passed 
by  the  Resident's  Court  at  Aden,  is  a  linal  judgment 
against  which  an  appeal  would  lie  to  the  Privy  Council. 
It  is  not,  therefore,  open  to  the  Boidbay  High  Court 
to  entertain  an  application  in  icvision  against  such  an 
order  B  LEO\T  MOSKS  v,  SOLOMON  JUUAU  MEYER,  27 
Bom  L  K  1460,  A  I  R  1925  Bom  139,  SOB  32  367 
• —  S.  115—  Limitation  Act  (IX  of  WOS),  s  6 

—  Application  dismissed  as  barred  by    time— Benefit 

of  nnnoJ  ity  ignored— Revision 

Petitioner's  application  for  leave  to  sue  in  forma 
pauper  is  was  i  ejected  on  the  giound  that  the  suit 
was  barred  by  tune,  but  in  arriving  at  this  conclusion 
that  Court  overlooked  the  provisions  of  s  G  of  the 
Limitation  Act  to  the  benefit  of  which  the  petitioner 
was  entitled' 

Held,  that  the  order  rejecting  the  petitioner's  appli- 
cation was  liable  to  be  set  aside  in  revision  R  MA 
SHEWK  U  v  MA  SHIN,  A.  I  R.  1925  Rang  381,  4  Bur.  L. 
J.  146  775 


-  8. 115 — Revision — Delay  in  filing  petition. 


A  delay  of  nearly  seven  months  in  filing  a  revision 
application  is  in  itself  a  sufficient  ground  for  declining 
to  accept  it,  A  G.  I.  P,  RY,  v.  KUNJ  BBHARI  LAL,  A.  1. 
R.  1926  All  228  993 

— 8. 11 5— Retiswn,  ground  for— Error  of  law — 

Burden  of  proof,  wrong  decision  on  question  of. 

The  giving  of  tin  erroneous  decision  on  a  point  of 
law  is  not  an  irregularity  or  an  illegality  in  the 
exeicise  of  jurisdiction  and  does  not  justify  inteifer- 
ence  in  revision. 

A  decision  on  a  question  of  onus  cannot  be  attacked 
in  revision.  L  ABDUL  Aziz  v.  ABDUL  KARIM,  2  L.  C, 
186  46 
—  8. 1 1 5,  0.  XXI,  r.  5  8  -Eironeous  view  of  law 

~  Objection  proceedings,  order  in—Revision. 

If  a  Court,  upon  an  erroneous  view  of  the  scope  of 
a  section  of  the  C.  P.  C  ,  applies  it  to  a  case  to  which 
it  has  no  application,  the  Court  acts  without  jurisdic- 
tion and  the  High  Court  would  interfere  with  its 
decision  in  revision. 

The  mere  fact  that  the  unsuccessful  party  in  objec- 
tion proceedings  under  0.  XXI,  r  58  of  the  C.  P.  0 
has  to  file  a  separate  suit  under  r.  63  of  the  Older  and 
the  onus  of  proof  will  be  on  him,  does  not  afford 
sufficient  ground  as  to  why  the  High  Court  should 
revise  the  order  in  those  proceedings.  N  PANDUBANO 
GOVIND  FATB  v.  MAIFUZBHAI,  A.  I.  R.  1026  Nag.  257  40 
8.115,  0.  XXIII.  r.  1- -Suit  dismissed  ..on 

question   of    technicality — Appeal—Withdrawal   of 

suit  —Revision, 

Where  a  suit  is  dismissed  on  a  question  of  techni- 
cality and  on  appeal  the  Appellate  Court  allow*  the. 
0uit  to  be  withdrawn  with  liberty  to  bring  a  freth 


Vol.  92] 


GENERAL  INDEX. 


Civil  Procedure  Code— 1908- contd, 

suit,  the  High  Court  will  not  interfere  with  the  order 
in  revision. 

An  error  of  judgment  is  not  ft  ground  for  inter- 
ference in  revision  A  PANCHAM  LAL  v  MUHADMAD 
YAQUH,  24  A  L,  J.  313,  A  [  K  192G  All,  291  558 

• 8.141.  See  MESNE  PROFITS  792 

__  8.144. 

See  COURT  FEI-S  ACT,  1870,  Sen,  II,  ART  11         474 

See  LIMITATION  ACT,  1908,  s  6  23 

See  LIMITATION  ACT,  1908,  Sen  I,  ART.  187  960 
S.  145 — Execution  of  decree — Application 

against  surety — Fraud,    plea   of,    whether    can    be 

taken 

Where  an  application  is  made  to  execute  a  deciec 
against  a  surety,  the  surety  is  apaity  within  the 
meaning  of  s  47  of  the  C  P  0  ,  aud  it  is  open  to  the 
surety  to  raise  a  plea  of  fraud  before  the  Executing 
Court  L  K.AN8HI  RAM  v  PRABH  DI\AL  An  JAN  DAS  & 
Co  ,  7  L  L  J  457,  A  I  R  1925  Lah  G18  259 

S.  145,  O.XXV,    r.  1  (3)— Security  for   costs 

— Bond     hypothecating    property — Enforcement    of 

security—  Pi  ocedurc — Execution 

Piamtitt  was  lequued  to  give  seciuity  foi  costs 
and  appellant  who  offered  himself  as  surety  executed 
a  bond  that  if  the  plamtift  failed  to  obey  the  oidei 
of  the  Oouit  with  regaid  to  the  payment  of  cobts, 
cerUim  property  of  the  buiety  speciiied  in  the  bond 
would  bo  liable  f 01  the  sati&iudion  of  the  ordei  and 
that  if  the  property  pioved  insufficient  foi  tho  pui- 
pose  the  suiety  would  himself  be  liable  IMamtift's 
suit  was  dismissed  and  plaintiff  was  ordeied  to  pay 
the  costs  of  the  suit  Defendant  took  out  execution 
for  costs  and  applied  foi  sale  of  the  piopcrty  hypo- 
thecated by  the  suiety, 

Held,  (1)  that  on  the  language  of  the  bond  executed 
by  the  surety  the  defendant  wa&  not  bound  to  pio- 
ceed  first  in  execution  against  the  plaintiff  and  only 
on  his  failure  to  obtain  satisfaction  from  the  plaint- 
iff to  proceed  against  the  surety, 

(2)  that  there  was  110  moitgage  of  hid  piopeity  by 
,the  surety  and  that  the  proper  procedure  to  enforce 
the  liability  of  the  surety  under  the  bond  was  to 
proceed  in  execution  by  sale  of  the  hypothecated  pro- 
perty. A  ATA  HUSAIN  v  MUSTAFA  HUSAIN  546 

8. 146,  O.  IX,  r.13 — Charge,  suit  for  enforce- 

tnent  of — Ex  par te  decree — Puisne  mortgagee,   if  can 
have  deciee  set  aside, 

A  puisne  mortgagee  who  is  not  a  party   to  a  suit 
for  enforcement  of   a    charge  against  the  mortgaged 
property  is  not  entitled  under  s  UG,  C,  P  C ,  to  main- 
tain   an  application    for    setting  aside  the    ex  patte 
decree  m  the  suit  under  O  IX,  r.  13  of  the  Code.      C 
SUSIL  CHANDKA  GUHA  v  GOURI  SDNDARI  DEVI         946 
• s.  148 — Mortgage — Foreclosure    suit — Com- 
promise decree — Time  fixed  for  payment,  whether  can 
oe  extended — Power  of  Court 

A  Court  has  no  power  to  extend  the  time  fixed  in 
&  compromise  decree  in  a  suit  for  foreclosure  for 
the  payment  of  the  decretal  amount.  N  DAWLAT  v 
KASHIRAO,  A.  L  R.  1926  Nag.  280  822 

•• s.  149— Court- fee,    deficient,  payment    of— 

Limitation,  question  of. 

Where  a  Court  dismisses  a  suit  and  simultaneously 
with  the  dismissal,  orders  making  up  the  deficiency  in 
Court-fee,  the  order  should  be  considered  to  have  been 
made  under  s,  149,  C  P.  C ,  as  the  Court  is  entitled 
to  pass  such  an  order  at  any  stage  of  the  case.  In 
fcuoii  a  case  the  effect  for  purposes  of  limitation  is  the 
«amc  ae  if  the  Court-fee  demanded  bad  been,  paid  m 


Civil  Procedure  Code— 1908-contd. 

the  first  instance  L  ARSHAD  An  v  ZORAWAR  SINGH,  8 
L  L  J  60  .  986 
S.  149— Limitation  Act  f IX  of  190$),  s  5— 

Insutficient  Court-fee  on  appeal — Bona  fide   mistake 

— Extension  of  time 

An  appellant  who  is  misled  by  an  error  of  the 
Court  and  the  insufficiency  of  the  Court-fee  onginal- 
ly  paid  by  him  is  due  to  a  bona  fide  mistake  on  his 
pait,  is  entitled  to  the  benefit  of  s  149  of  the  C  P  C. 
and  s  5  of  the  Limitation  Act  L  RANZOR  SI.NGH  v, 
SECRETARY  OF  STAIE  LOR  INDIA  319 
3.151. 

SeeG  P  C  ,  1908,  s  94  615 

tfec  EXECUTION  OF  DECKEL  571 
8. 1 51  —Inherent  power  of  Couit,  when  to  be 

exercised 

Where  a  party  does  not  take  advantage  of  the  light 
of  appeal  granted  to  him  by  the  C  P  C  ,  he  cannot 
be  allowed  to  come  to  the  Com  I  and  ask  the  (Joint  to 
exeicise  its  po\\ers  under  s  151  of  the  Code  B  VIRAPPA 

(JOWNDAPPA   KONRADDI     V    BAPAPPA     VlRBHADRAPPA,     27 

Bom  L  R  loll,  A  I  R  1926  Bom  139  354 

S.  152   -Amendment  of  dewc    Appeal    filed 

but     not  decided— Jurisdiction    of    Tnal  CouU  to 
amend  deciw 

It  Jb  only  \\lienau  appeal  has  been  decided  and  a 
deoiee  has  been  passed  in  appeal  continuing,  amend- 
ing or  rev  ei  sing  the  deciee  ot  the  Tnal  Couit  that  the 
appellate  decree  operates  to  supersede  the  Trial 
Couit'a  decree,  t  n/1  it  is  only  then  that  the  junsdiction 
of  the  Tnal  Comt  to  interfere  with  the  deciee  so 
superseded  ceases  Till  the  Appellate  Court  hears  the 
appeal  and  decides  it,  the  deciee  of  the  Tnal  Court 
remains  in  force  and  it  ran  be  rectified  or  amended  by 
the  Couit  which  passed  it  A  BACIUN  e  RAGHUNAUH, 
21 A  L.  J  149,  48  A  224,  AIR  1926  All  304  264 

O.  l,r,  10,  O.XLV— Remand  by  High  Court 

— Appeal  to  Pi  ivy   Council— Addition  of  parties- 
Power  of  Couit 

A  suit  was  dismissed  by  the  Distuct  Couit  but  was 
remanded  by  the  High  Com  t  on  appeal  Defendants 
applied  for  and  obtained  leave  to  appeal  to  the  Privy 
Council  Petitioner  then  applied  to  the  High  Court 
to  be  added  as  a  defendant  in  the  suit 

Held,  (I)  that  the  High  Court  having  passed  a  final 
older  m  the  case  remanding  the  case  to  the  District 
Court,  was  functus  oflicw  and  could  not,  therefore 
make  any  order  adding  parties  to  the  case, 

(2)  that  as  regards  the  appeal  to    the  Pi  ivy  Council 
the  High  Couit  had  no  powers  beyond  those  given 
m  O    XLV  of    the  C    P    C ,  and  that    there  was,  m 
that  order,  no  powei  to  add  parties, 

(3)  that  the   District  Couit  had  seizin   of  the  case 
as  a  result  of  the  lemand  by  the  High  Court  and  had, 
therefore,  power  to  add  parties      R  KALEKTHER  AMMAL 
v.  MA  Mi,  3  R  474,  AIR.  1926  Rang  9  125 
O.  Ill,  rr,  1,  4 — Advocate,  authority  of,  to  act 

onbehalf  of  client — Vakalatnama,  whether  necessary . 

By  virtue  of  the  provisions  of  cl  (3)  of  i  4  of 
O  111,  C.  P.  0  ,  an  Advocate,  unlike  a  Pleader,  can  be 
verbally  appointed  to  act  on  behalf  of  hie  client,  and 
when  so  appointed,  under  r  1  of  0  III,  he  can  appear, 
plead  and  act  There  is,  theiefore,  nothing  to  prevent 
an  Advocate,  either  in  the  High  Couit  or  m  the  sub- 
ordinate Courts,  from  presenting  an  application  on 
behalf  of  his  client  without  anv  power  of  appoint- 
ment or  vakalatnama  given  to  him  in  writing.  Pat 
LAUBENTIUS  EKKA  v.  DHUKI  KOBRI,  4  Pat.  766;  A,  I.  R. 
1926  Pat.  73;  7  P.  L' T,  368  17$ 


1072  INDIAN  OASES,  [1928 

Civil  Procedure  Code— 1908— contd.  civil  Procedure  Code— 1908-contd. 


-0.  Ill,    r.  4.   Set  MADKAS  CIVIL    RULES  OP 

PRACTICE,  a,  277  300 

_<X   in,  IT.    16,  17— Pleadings— Amendment, 

when  should  be  allowed—New  plea  contradictory  to 
old,  whether  sufficient  ground  for  rejection. 
Order  VJ,  r.  16,  0.  P.   C  ,  does  not  limit    the  period 
when  a  plea  must  be  taken,  it  bars  only  pleas  that  are 
irrelevant  or  scandalous  or  may  tend  to  prevent  a  fair 
trial  of  the   case. 

A  Court  is  bound  to  allow  an  amendment  under 
O.  VI,  r  17,  C  P,  0.,  if  it  is  necessary  for  the  purpose 
of  determining  the  real  question  in  controversy  be- 
tween the  parties. 

A  Court  has  no  power  to  refuse  to  allow  an  amend- 
ment of  pleadings  for  any  reason  except  those  men- 
tioned in  r  16  of  O  VI,  C.  P  0  ,  which  do  not  include 
a  contradiction  between  the  new  pleading  and  the  old, 
N  <j AURA  TELIN  v.  SHRIRAM  BHOVER,  A.  I.  K  1926  Nag, 
265  926 
0,  VI,  r,17.  SeeC.P  0,1908,  all  396 

O.  VI,  r.  17 — Amendment  of  plaint— Causes 

of  action,     different — Buddhist  Law,      Burmese — 
Adoption—  Kittima     and  jiyppalhitta  forma —Claim 
based  on  kittima  adoption,  failure    of — Appatlutta 
adoption,  whether    can  be  allowed  to  be  net  up 
A  plaintiff  must  be  confined   to  the  case  that  he  sets 
up  in  his  pleadings,  or  to  a  case  which  is   consistent 
with  those  pleadings 

Amendment  of  pleadings  is  a  matter  for  the  dis- 
cretion of  the  Court  and  that  discretion  must  be  exei- 
cised  with  regard  to  all  the  facts  and  circumstances 
of  the  case. 

The  causes  of  action  on  which  a  person  can  claim 
to  be  a  kittima  or  ari  appathitta  son  are  widely 
different,  and  different  considerations  govern  the 
question  of  these  two  distinct  forms  of  adoption. 

Where  a  plaintiff  comes  into  a  Court  on  the  basis 
of  a  kittima  adoption  and  fails  to  prove  the  case  set 
up  by  him,  lie  cannot  be  allowed  to  amend  his  plaint 
so  as  to  base  his  claim  on  an  appathitta  adoption,  R 
MAUNO  BA  THEIN  v  MA  THAN  MYINT,  3  R.  483;  A  I.  K. 
1926  Rang.  49  253 

. 0.  VI,  r.  17—  Amendment  of  plaint,  when  to 

be  allowed — Refusal  to  allow  amendment. 
In  a  proper  case  the  Court  should  freely  allow  an 
amendment  of  the  plaint  so  as  to  ensure  that  justice 
is  done  to  the  parties  and  that  the  time  and  the  money 
of  the  parties  la  not  wasted. 

Where  a  Court  refuses  to  allow  an  amendment  of 
the  plaint  in  a  case  in  which  such  amendment  is  ne- 
cessary for  the  purpose  of  doing  justice  between  the 
parties,  it  fails  to  ftxe'rcise  a  jurisdiction  vested  in  it 
by  law  and  its  order  is  open  to  revision  under  s  115 
of  the  0.  P.  C.  3  MUNICIPALITY  OP  TANDO  AI>AM  v.  KHAN 
MOHAMMAD,  A.  I.  R.  1925  Sind  260  1 01 9 

. — — ~-  0,  VI,  r.  17— Plaint,  amendment  of— Came  of 

action,  date  o/,  change  of. 

No  plaint  should  be  allowed  to  be  amended  so  as 
to  change  the  cause  of  action;  but  an  amendment  to 
change  the  date  when  the  cause  of  action  was  stated 
in  tile  plaint  to  have  arisen  ought  to  be  allowed,  even 
though  the  effect  of  so  doing  would  be  to  deprive  the 
defendant  of  a  plea  of  limitation  M  ALAPATI  KAMA- 
SWAMI  V.DASARI  VENKATARANAYANA,  (1925)  M.  W.  N.  781; 
A.  I.  &  1926  Mad.  128  330 

. O,  VI  i  r,  1 7— Suit  for  specific  performance  of 

agreement  to  wlt^-Amendment  of  plaint  to  include 
for  powewion,  whetfor  ptrmwibk. 


In  a  suit  for  specific  performance  of  anagreemen 
to  execute  a  simple  mortgage,  it  is  not  competent  to 
the  Court  to  appoint  a  Receiver  pending  suit  to  take 
charge  of  the  property  in  suit  and  thus  do  by  way  of 
receivership  what  it  would  not  be  entitled  to  do  even 
by  way  of  decree.  M  CHOOKALJNGAM  PILLAI  v.  P.  K.  P. 
S  PICHAPPA  CHETTIAR,  22  L.  W.  579;  (1925)  M.  W.  N. 
802;  A,  1  R.  1926  Mad.  155  599 

• 0,  VII,  r.  1.    See  COURT  FKBS  ACT,  1870,  s.  7 

W  W  730 

0.    Vlf,  r.  10— Order  returning   plaint  for 

presentation  to  pi  oper  Court  for  want  of  jurisdiction 
---Application  to  withdraw  portions  of  claim,  so    as 
bring   it    within    Court's  pecuniary    jurisdiction- 
Amendment — Power  of  Court  to  re-admit  plaint 
Where    a  plaint    was    ordered  to  be    returtfed  for 
presentation  to  the  proper  Court  on  the  ground  that 
the  value  of  the  subject-matter  of   the  suit  exceeded 
the  pecuniaiy  limits  of  the  jurisdiction  of  tho  Court 
to    which  it  had    been    presented  and  the    plaintiff 
thereupon   applied  to    be    allowed  to    withdraw  his 
claim  to  certain  portions    of  the  property  mentioned 
m  the  plaint    which  had    the   effect  of  biinging   the 
plaint  withm  the  pecuniary  jurisdiction  of  the  latter 
Court , 

Held,  that  the    Court  had   the  po\ver    to  allow    the 
plaintiff  to  amend  the  plaint  and  re-admit  it  as  amend* 

Cd.    M  KOMMAKEDDI    RAMCHANDIiAlYA    V     Vl.M'RY    VEN- 

KATARATNAM,  22  L  W,  582;  (1925)  M.  W,  N.  804;    A.  I 
R.  1926  Mad.  133  '   800 


O,  IX,  8,  141—  Suit,  application  to  restore, 


,      ,    ,        —        ,  o         esore,     s* 

musal  of,  for  default—  Petition  to  set  aside  dismissal 
maintainability  of. 

Proceedings  under  0.  IX,  C.  P.  C.,  relate  to  ques- 
tions independent  of  the  suit,  to  be  determined  on 
evidence  aa  to  matters  quite  irrelevant  to  the  suit  and 
are,  therefore,  covered  by  s  141,  C.  P.  C.  Order  IX, 
therefore,  applies  to  applications  made  under  0  IX 
itself,  so  that  where  an  application  to  icstore  n  suit  is 
dismissed  for  default,  a  petition  lies  under  0,  IX  to 
set  aside  the  dismissal.  M  VBNKATA  NARASIMHA  RAO 

V  HBMADUSURYANARAYANA,  50  M.  L.  J.  75;  23  L.  W.  409* 

A  I.  R.  1926  Mad.  325  802 

—  -  -  ~O,  IX,  r.  7—  Proceedings,  ex  parte,  against 
defendant—Application  to  appear  in  suit,  whether 
necessary—  Procedure. 

Under  the  provisions  of  0  IX,  0.  P.  0.,  if  a  defend- 
ant does  not  appear  and  so  long  as  he  is  absent,  the 
proceedings  must  necessarily  be  ex  parte  and  under 
r.  6  of  that  Order,  the  Court  is  empowered  to  proceed 
notwithstanding  that  the  defendant  may  be  absent. 
Should,  however,  the  defendant  appear  in  the  middle 
of  the  proceedings,  by  the  very  fact  that  he  is  present, 
the  proceedings  cease  thenceforth  to  be  ex  parte  ana 
no  application  by  him  is  necessary  for  being  per* 
mitted  to  appear,  but  if  on  a  late  appearance  he 
wishes  to  be  placed  in  the  same  position  as  if  he  had 
appeared  at  the  proper  time,  he  should  under  r.  7 
of  the  Order  apply  for  permission  to  that  effect. 
8  KALA  GELLA  D,  SHIVJI  493 

--  0.  IX,   rr.    8,  9—  Dismissal  for    default— 
Restoration,  application  for  rejection   of—Appeal-* 
Appellate  Court,  power  of,  to  decree  suit  to  extent  of 
admission—Decree  on  admission  of  claim,  effect  of! 
On  an  appeal  from  an    order  refusing  to  restore 
ft  suit  dismissed  in    default,  the  Appellate    Court 
cannot  make  an  order  which  the  original  Court  could 
not  legally  have  made.  If  the  Appellate  Court  agree* 
with  the  Trial  Court  it  mu«*  dUmiw  the  apptal   If  $ 


Vol.  92] 


GENERAL 


10TS 


Civil  Procedure  Code-I908~~contd. 

differs  from  the  Trial  Court  it  should  order  the  case  to 
be  restored  either  on  terms  or  unconditionally.  It  has 
no  jurisdiction  to  pass  a  decree  in  favour  of  the 
plaintiff. 

For  the  purpose  of  0  IX,  r.  8,  C  P  0  ,  it  ia  the  net 
amouiit  for  which  the  defendant  admits  liability  after 
deducting  all  payments  alleged  by  him  which  has  to 
be  taken  into  account.  A  ABDUL  MAJID  v.  WAHID  ULLAH. 
A.  I  R.  1926  All.  281  496 

•  -  O.  IX,  r.  13. 

See  C,  P  0  ,  1908,  a  48  846 

See  C  P.  0  ,  1908,  s  146  946 

See  LIMITATION  ACT,  1908,  Son  I,  ART  164          272 

•  --  0.  IX,  r.  1  3—  Ex  parte  decree,    setting  aside 

of  —Knowledge  of  decree. 

A  proof  of  knowledge  of  the  decree  with  all  its  con- 
tents and  the  general  effect  thereof  is  necessary  in 
order  to  support  a  plea  of  limitation  in  bar  of  an 
application  to  set  aside  an  ex  parte  decree  N  ISRAM  v 
GANXHA  295 

--  O.  IX,  r.  13,  8.  115—  Ex  parte  decree, 
application  to  set  aside—  Engagement  of  Pleader  in 
other  Court,  whether  sufficient  cause—  Discretion  of 
Court—  Revision—Decree  against  several  defendants 
having  separate  interests—  Application  by  some  to  set 
aside  decree-  -  Procedure 

It  ia  not  an  invariable  rule  that  the  absence  of  a, 
Pleader  owing  to  his  engagement  elsewhere  is  a 
sufficient  cause  for  setting  aside  an  ex  parte  decree, 
but  the  High  Court  will  not  in  revision  interfere  with 
the  discretion  of  the  Court  of  first  instance  in  setting 
aside  an  ex  parte  decree  on  that  ground. 

Where  a  plaintiff  impleaded  several  persons  as 
parties  to  a  suit  on  the  ground  that  they  were  several- 
ly in  possession  of  the  assets  of  a  deceased  person 
and  an  ex  parte  decree  was  passed  against  all  of  them, 
on  an  Application  by  some  only  of  the  defendants  to 
set  aside  the  ex  parte  decree 

Held,  that  it  was  not  open  to  the  Court  to  set 
aside  the  decree  as  against  the  defendants  who  had 
not  applied  to  set  aside  the  decree  M  THIRUMALA- 
CHARIAR  v.  ATHIMOOLA  KARAYALOR,  22  L  W.  695  (1926) 
M  W.  N  112,  A  I  R  1926  Mad  256  776 

1   *    0.  X,  r.  1  —  Examination  of  parties—Replica- 
tion covering  all   facts  in    written  statement—  Wit- 
nesses, order  in  which  to  lead—  Court,  duty  of. 
The  Court   is  bound    to  examine    the   parties  only 
when  there  is  no  clear  express  or  implied  denial  of  any 
statement  of  fact  m  the  pleadings   But  where  a'  plaint- 
iff puts  in  a  written  replication  which  covers  all  state- 
ments of  fact   referred  to  in  the   written   statement 
there  is  no   occasion  for   the  Court   to  examine   the 
parties  or  their  Pleaders. 

It  is  no  duty  of  the  Court  to  direct  a  party  as  to 
the  order  in  which  lie  is  to  lead  his  witnesses  L 
LAKSHMI  CHAND  v.  MUKTA  PARSHAD,  8  L.  L.  J.  67  1006 


Civil  Procedure  Code~1908~eontd. 

in  execution  proceedings  under  s  36,  0  P.  C.  8 
TAHILRAM  TARACHAND  v.  VASSUMAL  DEUMAL,  A.  I.  R. 
1926  Smd  119  562 


rT~  ?'  Xl1'  £  6|  8'  ?  6  rmisnt  judgment  on 
—  froceddre—  Decree,  whether  must  be  drawn  up 
In  order  to  enable  a  plaintiff  to  apply  for  mdff- 
ment  under  the  provisions  of  0  XII,  r.  6t  C  P  C 
it  is  not  necessary  that  he  should  relinquish  that 
part  of  the  claim  or  relief  which  is  not  admitted  by 
the  defendant.  He  is  entitled  to  judgment  to  the  extent 
Of  the  admission  made  by  the  defendant.  Cilcut> 
^QPr-?  Judgment  being  passed  under  6.  XII  r  6 
0.?.  C,  it  is  not  ;  ne<fcssary  to  have  a  decree  drawn* 
tq>.  Tlw  plaintiff  can  ia  auch  a  case  enforce  payment 


—  O.  XVIII,  r,  1.   See  MESNB  PROFITS 


792 


0.  XX,  r.  11,  cl.  <£),  O.   xxxiv,  r,   14- 

Security  bond   by     judgment -debtor- -Security,     en- 

forceabrtity  of,   in   execution— Hindu  father,  decree 

against—Sons  of    judgment-debtor  also    joining    as 

parties  to  security  bond,  effect  of. 

Immoveabie  properties  given  by  a  judgment-debtor 
as  security  pursuant  to  an  order  made  under  O  XX,  r. 
11,  cl  (2),  C.  P  0  ,  can  be  realised  by  the  decree-holder 
in  execution,  unless  there  is  anything  in  the  security 
bond  or  the  order  of  Court  which  precludes  the 
security  from  being  enforced  in  execution 

Where  the  parties  intended  that  the  properties 
covered  by  the  security  bond  x  should  be  realised 
m  execution,  the  decree-holder  is  not  bound  to 
resort  to  a  separate  suit  for  the  purpose 

The  provisions  of  0.  XXXIV,  r  14,  C  P  C  ,  are 
inapplicable  to  such  a  case  and  do  not  operate  as  a 
bar  to  the  enforcement  of  the  security  bond  in  execu- 
tion. 

It  would  make  no  difference  in  the  above  case  if  a 
Hindu  father  aiouc  is  the  judgment-debtor  but  the 
security  bond  is  executed  by  the  father  and  his  un- 
divided sons,  as  the  latter  could  question  the  debt  only 
if  it  were  tainted  with  illegality  or  immorality. 

The  words  "claim  arising  under  the  mortgage"  have 
been  substituted  m  0  XXXIV,  r  14,  C  P.  C,,  for  the 
words  "any  claim  whether  arising  under  the  mortgage 
or  not1*  in  the  repealed  s.  99  of  the  Transfer  of  Pro- 
perty Act  The  effect  of  the  alteration  is  to  confine 
the  prohibition  against  bringing  the  mortgaged  pro- 
perty for  sale,  except  by  bringing  a  suit,  to  case* 
where  a  mortgagee  has  obtained  a  peisonal  decree 
against  the  mortgagor  on  the  mortgage-debt.  The 
mortgage  or  charge  mentioned  in  0.  XXXIV,  r.  14 
must  be  a  mortgage  or  charge  existing  prior  to  the 
decree  and  not  created  by  the  decree  or  one  created 
J>y  the  act  of  parties  subsequent  to  the  decree  M, 
OFFICIAL  RECEIVER  v.  NAGARATNA  MUDALIAK,  4$  M-  £•  J- 
643,  (1925)  M  W.  N.907,  A.  L  R  1926  Mad  194  '497 

O.XXI,  r.  2-— Agreement  not  to  execute  decree 

—Adjustment   of    decree— Certification,  absence.  oft 

An  agreement  by  a  decree-holder  not  to  execute  the 
decree  amounts  to  an  adjustment  or  satisfaction  of  the 
decree  and  unless  it  is  certified  m   accordance  with 
the  provisions  of  r  2  of  0  XXI,  G.  P  C.,  it  cannot  be 
recognised  by  the  Executing  Court  as  a  bar  to  execu- 
tion RM  S  S  OHBTTYAR  FIRM*    MA  TIN  TIM,  A  I. 
R  1925  Rang  349,  4  Bur  L.  J.  179  677 
O  XXI,  fT.  13, 17,  8. 11 5- -Execution  appli- 
cation,   defects    in    Court,   whether  bound   to   give 
time  for  correction-Dismissal  of  petition-Revision. 
TTwwint.  n  XXT    r  17    OP.  0.,   when  an   execution 
apttuonSLeutLdwh^  does  not  fulfil  there- 
augments  of  rr.  11  to  14,  the  Court  has  an  option  either 
?o  reject  the  application  or  to   allow  the  defect  to  b« 
remedied  within  a  time  to  be  fixed  by  it. 

Where  it  declines  to  adopt  the  latter  course,  it  oaa- 
not  be  held  to  have  refused  jurisdiction  «>aa  to  war- 
interference in  revision  under  s.  115, 0.  P.  C.     M 

tltPABKAMKALAPATHOOfcV.     UBBCTOTIt.    AMB0, 

j.MSHAM.W.  N.  917;  A.  I  fc,  1926 
Mad.  260  10* 


1074 


INDIAN  CASES, 


[1926 


Civil  Procedure  Code— 1908-contd. 

0.  XXI,  rr.  1 5,  2,  0.  XXX,  r.  1-Suit  in  name 

of  firm— Payment  to  one    partner — Satisfaction    of 
decree. 

Where  a  suit  is  brought  in  the  name  of  a  firm  under 
the  provisions  of  0.  XXX,  r.  1,  C.  P  0.,  one  partner 
of  the  firm  is  competent  to  receive  payment  in  respect 
of  the  decree  m  favour  of  the  fiim  and  to  notify 
satisfaction  of  the  said  decree  to  the  Court.  8  YUSIF 
MAHBUB  <fc  Co.  v.  SALLOH  MAHOMOD  387 

O,  XXI,  rr.  46,  53,  8.  146—  Debt  attachment 

of — Debt  ripening  into  decree — Attaching?  creditor, 
right  of,  to  execute  decree,  without  attaching  decree 
itself  —  Decree-holder,     payment   to,     by    judgment- 
debtor,  whether  binding  on  attaching  creditor. 
Under  the  terms  of  a  deed  of  partition  between  two 
brothers  L  and  R,  a  sum  of  money  fell  to  L's  share 
but  was  retained  with    R.    A  creditor   of  L  attached 
before  judgment  the    debt  so  due    and  ultimately  ob- 
tained a  decree.    L  thereupon    sued  R  on    the  debt, 
obtained  a   decree    and  within  a    month    thereafter 
reported    satisfaction  of    the  decree.    In  an  applica- 
tion for  execution  by  the  attaching  creditor  • 

Held,  (1)  that  the  attaching  creditor  was  not  bound 
either  by  the  alleged  payment  by  R  or  by  the  iccord- 
ing  of  satisfaction  by  L  and  was  entitled  to  execute 
the  decree ; 

(2;  that  the  attaching  creditor  should  be  permitted  to 
amend  his  petition  by  adding  a  prayer  thereto  for  the 
attachment  of  the  decree  obtained  by  L  against  R. 
Per  Venkatasubba  Rao,  J.  (Reilly,  J.  dissenting)  -  - 
The  attachment  placed  on  a  debt  faRtens  itself  on  a 
decree  obtained  on  that  debt  without  any  further  act 
on  the  part  of  the  attaching  creditor.  The  debt 
matures  into  and  merges  in  the  decree  and  the 
attachment  gets  naturally  transferred  from  the  debt  to 
the  decree. 

The  creditor  who  has  attached  the  debt  but  who 
has  failed  to  attach  the  decree  is  nevertheless  entitled 
to  execute  it  as  if  he  had  attached  the  decree  also. 
To  such  a  case  the  provisions  of  s.  146,  C  P.  C.,  will 
clearly  apply. 

Per  heilly,  J.— What  an  attaching  creditor  gets 
is  attached  at  his  instance  is  an  order 
the  creditor  from  recovering  it  and  the 
paying  it.  He  acquires  by  that  order  no  right 
to  sue  on  the  debt  or  to  collect  it  or  to  give  a  valid 
discharge  of  it.  The  prohibitory  order  which  he 
obtains  cannot  grow  or  ripen  into  or  be  converted 
into  something  quite  diflerent,  namely,  the  right  to 
execute  a  decree  obtained  on  the  debt.  It  is,  there- 
fore, necessary  for  the  creditor  to  attach  the  decree 
before  proceeding  to  execution.  M  ALAGIRISAMI  PILLAI 
i>.  LAKSMANAN  CHETTY,  50  M.  L.  J.  79,  A.  I.  K.  1926  Mad. 
371  1021 

— — 0.  XXI,  r.  60 — Execution  of  decree — Decree 

against  property  of  firm — Liability  of     individual 
members* 

The  mere  circumstance  that  a  decree  passed  against 
a  firm  as  it  stands  can  be  executed  only  against  the 
property  of  the  firm  does  not  preclude  its  eventual 
execution  against  the  individual  partners  of  the  arm 
as  soon  as  any  or  all  of  the  conditions  set  forth  in 
0.  XXI,  r.  50,  C.  P.  C.,  are  fulfilled.  L  BHAGWANDAS 
PARAS  BAM  in.  JADONATH,  A.  L  R  1926  Lah.  236  898 

0,  XXI,  r.  58.    See  C.  P.  C.,  1908,  s.  115  40 

O,  XXI,  r.  58— Money-decree— Attachment  of 
by  transferee  /ram  judgment- 


Civil  Procedure  Code- 1908— contd. 

debtor — Decision,  finality  of — Appeal,  whether     lies 
—Property     attached    being    decree  in   favour    of 
judgment-debtor,  effect  o/ — Execution  of      decree — 
Insolvent  judgment-debtor — Question  of  title  between 
scheduled  creditors,  decisionof — Revision  —  Provincial 
Insolvency  Act  (^of  1920),  s.  50 
Where  an  objection  is  raised  by  a  transferee  from 
the  judgment-debtor  to  attachment  of  the  property  in 
execution  of  a  money-decree,  and  the  question  arises 
whether  the  transfer  in  favour  of  the  objector  is  good 
or  not,  the  question  relates  to  the  title  to  the  property 
sought  to  be  attached,  and  comes  within   the  purview 
of  O  XXI,  r.  58,  C   P   C ,  and  the  decision    is  final, 
subject  to   the  result  of  any    suit  that  might  be   in- 
stituted, and  is  not  open  to  appeal.    The  fact  that  the 
property  attached  is  a  decree  makes  no  difference 

Ihere  is  nothing  m  s,  ,50  of  the  Provincial  In- 
solvency Act  which  says  that  any  question  of  title 
raised  between  two  scheduled  creditors  will  be  decided 
by  the  Insolvency  Court,  and  a  decision  of  such  ques- 
tion by  the  Execution  Court  is  not  open  to  revision. 
A  PEAREY  LAL  v.  ALLAHABAD  BANK  LTD.,  24  A.  L  J.  334; 
A  I  R.  1926  All.  244  14 

O.   XXI,    r.  63— Attachment,     objection  tot 

dismissal    of — Title     suit — Fraudulent     transfer — 

Consideration— Possession—Good    faith— Burden   of 

pi  oof — Intention   to  defeat  creditors — Transferee  net 

party  to  fraud,  effect  of 

Where  an  objection  to  an  attachment  of  certain 
property  in  execution  of  a  decree,  by  a  person  claim- 
ing to  be  a  transferee  of  the  picperty  from  the  judg- 
ment-debtor, is  dismissed  on  the  ground  that  the 
transfer  was  intended  to  defeat  the  cieditoisof  the 
judgment-debtor  and  was  fraudulent,  and  the  un- 
successful objector  brings  a  suit  to  establish  his  title 
to  the  property,  the  burden  lies  upon  him  of  proving 
not  merely  the  passing  of  adequate  considei  ation  and 
his  possession  over  the  property  but  also  his  own  good 
faith. 

Where,  however,  consideration  and  possession  are 
established  a  much  lighter  burden  lies  on  the  plaintiff 
with  regard  to  the  establishment  of  good  faith. 

In  such  a  case,  however,  the  all  essential  point  is 
whether  the  plamtift  was  a  party  to  the  fraud  on  the 
creditors.  An  intention  to  defeat  the  creditors  may 
well  exist  on  the  part  ot  the  transfeior,  and  yet  the 
transfer  will  be  valid  unless  the  transferee  was  also  a 
party  to  the  fraud.  N  VANAYAK  v.  KANIRAM,  A.  I.  R. 
1920  Nag.  293  810 
O,  XXI,  r,  66,  See  C.  P.  C.,  1908,  0  XXI, 

R.  100  326 

. 0.  XXI,  r.  66, 88,   2  (2),  47,  115~#zecu- 

twn  of  decree — Sale  proclamation — Notification     of 

incumbrancc — Appeal,  whether  lies — Revision. 

Under  0.  XXI,  r.  66,  C  P.  0.,  an  Executing  Court 
is  bound  to  notify  m  the  sale  proclamation  all  incum- 
brances  which  prima  facie  exist  on  the  property  which 
is  ordered  to  be  sold.  Where  a  person  claiming  to  be 
a  mortgagee  of  such  property  intimates  his  claim  to 
the  Court  and  the  Court  directs  that  the  claim  should 
be  notified  in  the  sale  proclamation,  the  order  is  not 
open  to  appeal  and  cannot  be  challenged  in  revision. 

An  order  passed  by  an  Execution  Court  under  O. 
XXI,  r.  b6,  C.  P.  C.,  prescribing  the  manner  in  which  a 
proclamation  of  sale  should  be  drawn  up  on  appli- 
cation made,  is  not  open  to  appeal  under  the  provisions 
of  0.  XJL111  of  the  Code, 

Section  47,  C,  P.  O.,  must  be  read  with  s,  2  of  the 
Code  and  the  effect  of  reacting  both  the  sections 


Vol.  92 


GENERAL  INDEX, 


1075 


Civil  Procedure  Code— 1908— contd. 

together  is  not  to  make  every  order  passed  by  the 
Execution  Couit  appealable  but  only  such  orders 
appealable  as  determine  the  rights  of  the  parties  to 
the  execution  with  logard  to  all  or  any  of  the  matters 
in  controversy  in  suit  A  MUHAMMAD  ZAKAUIA  v. 
KISHUM  NARAIN,  A  I  R  1926  All  268  644 

• 0.  XXI,  rr.  66,  72—  Execution  of  dectee— 

Sale— Decree-holder,  whether  bound  to  bid  up  to  any 

fixed  sum 

There  is  no  legal  necessity  foi  a  bidder  at  an 
auction-sale,  whether  he  be  the  decree-holder  01  an 
outsider,  to  purchase  the  propeityat  tho  f  ull  priee  at 
whu'h  it  may  have  been  valued  in  the  sale  proclama- 
tion On  the  contrary,  the  value  of  the  propeitv  is 
really  only  that  which  it  will  actually  fetch,  assuming 
t hat  there  i a  no  fraud  or  malpractice  with  regard  to 
the  bidders  and  that  the  sale  has  been  reasonably  and 
properly  made  public  Pat  SHKO  CHARAN  SINGH  v 
IVISHNO  Kubit,  6  P  L  T  800,  AIR  19215  Put  140  2 

O.  XXI,  rr.  66,  72—Eiecntion     of    decree  - 

Sale    proclamation  t     valuation      in  —  Deeicc-'iolder, 

whethei    bound  to  bid  up  to  valuation 

There  is  no  provision  oi  law  compelling  the  deciee- 
holder  to  bid  at  an  auction-sale  up  to  »iny  sum  that 
may  be  hxed  by  the  Court  The  valuation,  in  the  sale 
proclamation  is  intended  pi imanly  for  the  protection 
of  the  judgment-debtor  and  for  giving  mfoi ma tion  to 
tho  biddeis  at  the  a uc lion-sole  It  is  in  no  sense  in-  ' 
tended  to  be  an  exact  estimate  of  the  value  of  tho  pio- 
perty  and  if  in  a  sale  propeily  published  ana  conduct- 
ed the  highest  bid,  wh^thei  oi  thedeeaee-holdei  01  any 
other  peison,  is  some  iiguie  bt'low  the  iicjure  given  in 
the  sale  proclamation,  it  is  not  competent  to  the  (Joint 
to  compel  the  deciee-holder  to  bid  highei  than  that 
highest  bid  PatBADUi  S-uiu  v  PtAKh  LAL  MISKA,  6 
P.  L  T  859,  AIR  1926  Pat  140,  (1926;  Pat  137 

350 
0,  XXI,  rr.  89,  90  —Execution  proceedings— 

Estoppel — (Jom-prowise 

A  judgment-debtor  hied  an  application  undei  0 
XXI,  r  90»  0  P  0  for  withholding  continuation  of 
the  sale  m  execution  owing  to  certain  niegulaiities 
Subsequently  he  applied  under  i  89  for  leave  to 
avoid  the  sale  by  deposit  of  5  per  cent ,  oi  tho  pui- 
ch$ss-money  Both  applications  came  for  hearing  on 
the  same  day,  and  the  Pleader  for  the  pui  chaser  re- 
presented that  the  judgment-debtoi  could  not  main- 
tain his  second  application  unless  he  withdrew  his 
first  one  The  judgineiit-debtoi,  thereupon,  withdrew 
his  application  under  r  90  and  his  application  under 
r  89  was  granted  by  the  Oourt 

It  was  urged  by  the  purchaser  in  appeal  that  the 
application  under  r  89,  made  in  the  presence  of  the 
application  under  r  90,  being  void  ab  imtio,  tho 
withdrawal  of  the  application  under  r  90  would 
only  leave  it  open  to  the  judgment-debtor  to  make  a 
new  application  under  r  89  He  could  not  by  with- 
drawal of  his  application  under  r  90  give  retros- 
pective validity  to  his  application  under  r  89 

Held,  that  the  appellant  was  not  entitled  to  call  in 
question  the  order  of  the  lower  Oourt  allowing  the 
respondents'  application  under  r  89  m  the  light  of 
the  statement  of  his  Pleader  which  statement  either 
amounted  to  a  compromise  in  the  proceedings  or  to 
an  admission  which  would  estop  the  applicant  from 
questioning  the  validity  of  the  Court's  order  O  CHAN-- 
DOO  v.  MUBLIDHAR,  13  0.  L  J.  138,  A.  I  R.  192&  Oudh 
311  732 


Civil  procedure  Code— 1908— cent  i. 


0,  XXI,  r,  QQ—KieciittonofdectsL- 


sold  a?  belonging  to   judijincr.f-  Icbtor  —  Ptct, 
by  judgment-debtor—  Application  by    judgmeut-dLbtor 
to  set  aside  auction-silt,  in<iint.annibility  of 
Wheie,  in  execution  ot  a  d^civ-v,  ceitam  piopeuy  ifi 
bold  as  belonging  to  tho  jud^im-nt-debtor,  the  1-ittci  is 
entitled  to  maintain    .in    applK  riiiuu  to  .sot     aside  the 
sale  on  the  ground   of    mdUiial    laegulaiity  in    the 
publication  and    conduct  of  thus  tit,    and   the  appli- 
(  ritioii  cannot  be    thiownout    on    the  giound  that    tho 
judgment-debtor  hid  pnoi   to  the   date  ot  the  auction 
sold    the   piopeity    to    a  tliml  prison  and  had  thus 
ceased  to  luivo  an  interest  in  tho  propeiiy     M  MUHAM- 

MAD JVIOHUJEhN  MAKAf'VUK    l\  KAMANAD  1A\    Clll  HIAIi,  22 

L  W  872,  A  I  R  192d  Mad  217  597 

0.  XXI,  r.  90,  S.  WS—Limitattnn   Act   (IX 


of  1908),  Sch  2,A)t  Wo'—  Execution  of  decree—  S 
application  to  t.ct  a  nde—  Particular*,  additional 
supplied  after  cipit  y  of  limitation  —  Appellate  Ooiut> 
refusal  of,  tocoiisidet  paiticitlatb-  ~lfavu>iun 

Within  thuty  dajs  from  the  date  of  an  nuetiun-sale, 
the  judgment-debtor  applied  to  set  aside  the  tale  on  the 
ground  of  manual  uie^uhuity  m  the  j)ubhv,atiou  and 
conduct  of  the  sal°  which  had  rc3iilted  in  thepioperty 
being  sold  for  a  veiv  siiall  sum  Aitei  the  expiry  of 
thirty  days  the  judgnient-dcbtoi  mide  auotliei  appli- 
cation pointing  out  that  two  heavy  eucambiaiiccs  had 
been  ahown  m  the  sile  pioclainatiori  wheicas  no  snch, 
eneumbiances  existed  on  tho  datoofthr  pzoelamation 
The  f  list  CouU  fouii'l  that  this  u*as  a  fact  and  on  that 
giound  bet  aside  i\i<*  bale  On  appeal,  the  lower 
Appellate  Court  holding  that  the  First  CouH  was  not 
autliorised  to  look  into  th^  matters  ejntamcd  in  the 
later  application  inasmuch  as  that  application  had 
been  made  moie  than  thuty  days  aftei  the  sale,  set 
aside  tho  oidei  made  by  the  Fust  C\nut 

Held,  (I)  that  the  latei  application  meiely  supplied 
additional  paiticulars  of  the  material  inegulanty 
alleged  in  the  iiist  application  and  that  the  lower 
Appellate  Court,  therefoie,  had  jurisdiction  to  consider 
the  allegations  made  in  the  latei  application, 

(2)  that  the  leCiibal  ot  the  lowei  Appellate  Court  to 
consider  the  later  application  amounted  to  material 
irregularity  in  the  exercise  of  jurisdiction  and  that  tha 
Older  of  the  lowei  Appellate  Couit  must,  therefore,  be 
bet  aside  in  revision  A  RAM  SARVN  DAS  w  UIRDHAR* 
LAL,  24  A  L  J  266,  A  I  R.  1926  All  305  567 

-  O.  XXI,  r.  92—  Execution  of  decree—Sate    in 

favour    of  person  oth^r    than  decree-holder  —  Decree* 

bdtistjied,  effect  of 

A  decree  beco  lies  dead  as  soon  as  it  u>  satisfied  aa 
between  the  p  titles  to  it,  but  that  cannot  affect  tho 
vested  rights  of  otheia 

An  auction-sale  to  a  persiu  otlvu  than  the  deciee* 
holder  is  not  affected  by  the  fact  that  the  decree  ia 
subsequently  set  asido  on  appeal  oi  is  satisfied  after 
the  date  of  the  sale  N  RAMCHANORA  v  LAKSHMAX,  9 
N  L  J.3,  A  1  R.  1926  Nag  J98  803 

--  ~  O.  XXI,  r,  97—  Execution  of  decree—  Pzsses* 

$ion,  delivery  of  —  Investigation  in    anticipation    of 

obstruction^   legality  of 

Rule  97  of  0  XXI,  UPC,  contemplates  the  Court 
ordering  investigation  after  the  Baihll  has  been  ob-» 
structed  m  giving  possession  m  tenns  of  the  decree* 
Where,  however,  a  person  from  ^whom  obstruction  ut 
apprehended  puts  in  an  application  to  the  Court 
claiming  that  the  property,  whose  possession  has  been 


-0.XXIir.90i   Sec  0,  P,  OM  1908,  a,  47  633     ordered  to  be  delivered  to  the   decree-holder, 


Civil  Procedure  Code— 1908— contd. 

property  and  that  he  is  not  bound  by  the  decree, 
there  is  nothing  wrong  in  the  Court  anticipating  the 
obstruction  and  ordering  an  investigation  under  r 
07  of  O.  XXI.  R  MAUNO  Po  SEIK  vt  V.  NANDIYA  A* 
I  R.  1925  Rang.  374;  4  Bur,  L.  J.  178  667 

-"-  -O.XXI,rr.97to   101.    Sec  C.  P.  C.,  1908 
O.IX  533 


'    97  t0     101-tfxectttion      pro- 
cecdings—0  /A,  application  o/—  0.    XXI    r     97 
proceedingsunder    whether  execution  proceeding 
uraer  ix,  u.  F.  U  ,  has  no  application  to  execution 
proceedings 

Proceedings  under-  0.  XXI,  rr.  97  to  101    0  P  0 
are  proceedings  in   execution  and  O,    IX  is  inapplic- 
able to  them,  ** 

A  Court,  therefore,  has  no  jurisdiction  to  set  aside 
under  O.  IX,  r.  13,  C.  P.  C,,  an  ex  parte  order  direct- 
ing, free  from  obstruction,  delivery  of  property  to  an 
auction-purchaser  m  execution  of  a  decree  M 
KALLIAKKAL  v  PALANI  KOUNDAN,  23  L  W  227  50  M 
L.  J.  200,  (1926)  M.  W  N.  245,  A.  I.  K.  '  1^6  Mad  412 


n  * 

,  Decree  for  possession    Execution  c/ 

decree—  Obstruction—  Older    removing    obstruction- 

Suit   to   set   aside  order—  Limitation 

There  is  nothing  in  r  97  of  O  XXI  of  the  0  P  C 
which  pi  events  its  being  applicable  to  a  decree  for 
possession  passed  under  s.  u  of  the  Specific  Relief 
Act,  buch  a  decree  does  not  purport  to  decide  any 
question  of  title  but  it  declares  the  plaintiiT  a  posses- 
scr>  right  and  is  a  conclusive  determination  of  that 
right  Where,  therefore,  obstruction  is  offered  to  the 
delivery  of  possession  m  execution  of  such  a  decree 
an  order  removing  the  obstruction  falls  within  the 
purview  of  r.  98  of  0  XXI,  and  is  conclusive  unless 
eet  aside  m  a  suit  brought  in  accordance  with  the 
provisions  of  r.  103  of  O.  XXL 

Obittr  dictum.—  For  the  application  of  r.  97  of  O 
xgg  .  pf  the  C.  P,  0.  it  is  not  necessary  that  the  person 
niafcing  the  obstruction  should  be  physically  present 
at  the  spot.  M  BAKJOISI  NARASAMMA  v.  BANJOISI 

M-  w-  N-  i63  A 


~~ZTr  ?•'  ?XI'Jr<  98'  ••  47-  Auction-sale— 
Obstruction  by  judgment-debtor-Proceedings  by  mir- 
chater-Decree-holder,  whether  party-Order  d?»d- 
vng  questions  between  decree-holder  and  judgment- 
debtor—  Appeal,  whether  lieg.  y 

An  order  passed  under  0.  XXI,  r.  98,  C.  P.  0  on 
proceedings  initiated  by  the  auction-purchaaer  again™ 
the  judgment-debtor  is  not  appealable.  Such  an 
order  does  not  become  appealable  even  though  the 
Court  decides  any  que8tion  as  between  the  decree! 
holder  and  the  judgment-debtor  which  would  really 
t>e  quite  foreign  to  the  proceedings  y 

In  proceedings  under  O.  XXI,  r.  '98,  0.  P  G  taken 
by  an  auction-purchaser  against  the  judgment-debtor 
thedecree-holder  guathe  decree-holder  is  really  Tot 
aptrtA»The  -IT11011  tamwely  between  the  mdg- 
meut-debtorandthe  auction-purchaser,  andanyquel 
toonB  that  might  arise  between  the  ju'dgmeWbtor 
•ad  the  decree-holder  cannot  be  raised,  and  anv 
decision  passed  relating  to  them  is  not 

' 


CASES.  [1926 

Civil  Procedure  Code— 1908— contd. 

party,   rejection    of— Sale— Application  for    order 

declaring  non-liability  to  eviction,  maintainability  of 

— Res  judicata. 

In  execution  of  a  mortgage  decree,  a  pusine  mort- 
gagee, who  had  been  made  a  pro  /orma  defendant  in 
the  suit,  applied  to  be  made  a  party  to  the  execution 
proceedings  and  to  have  a  notice  under  r  66  of 
O.  XXI,  C.  P.  0 ,  issued  to  him.  This  application 
was  rejected  and  the  applicant  did  not  appeal  against 
the  order  of  rejection.  After  the  sale  had  taken  place, 
he  made  an  application  for  an  order  declaring  that  he 
was  not  liable  to  eviction  inasmuch  as  no  notice  under 
O  XXI,  r  66  had  been  issued  to  him  • 

Held,  (1)  that  the  second  application  was  not  main- 
tainable , 

(2)  that,  in  any  case,  the  question  raised  in  the 
second  application  was  res  judicata  by  virtue  of  the 
order  i  ejecting  the  first  application  Pat  BAIJNATH 
HINGH  v.  HARI  PRASAD  BAL,  (192*;  Pat  209,  AIR. 
1U24  Pat. 628,  7  P.  L.  T.  353  326 

0.  XXII,  r.  4 — Abatement  of   suit — Rent  suit 

— Joint  tenants — Non-joinder  in  appeal — Inconsist- 
ent decrees. 

Although  a  plaintiff  landlord  can  sue  any  one  of  his 
joint  tenants  ior  the  rent,  where  he  does  not  do  so,  but 
makes  all  of  them  parties  to  the  suit,  lie  cannot,  m  case 
'  of  his  failure  to  join  any  of  the  defendants  or  his 
repiesentatives  as  respondents  to  the  appeal,  contend 
that  as  he  had  the  option  to  sue  any  of  the  joint 
tenants  or  his  representatives,  his  appeal  v\  ould  not 
abate 

When  the  effect  of  not  joining  some  of  the  defend- 
ants to  a  suit  as  respondents  to  the  appeal  would, 
in  catso  of  the  success  of  the  appeal,  bo  the  passing 
of  two  inconsistent  decrees,  the  appeal  would  abate. 
C  CHANDUA  KUMAR  GUHA  v.  ELAHI  BUKSHA,  A,  1  R 
1916  Cal.  667  616 

— O.  XXII,  r.  4— Death  o/pro  forma  respondent 

— Legal  representatives    not    brought  on  record — • 
Abatement,  extent  of. 

Where  a  pro  forma  respondent  dies  and  his  legal 
representatives  are  not  brought  upon  the  record 
within  the  prescribed  period,  the  abatement  of  the 
appeal  as  against  the  deceased  respondent  does  not 
result  in  the  abatement  of  the  appeal  as  a  whole. 
L  RAM  LABHAYA  v.  KARTAB  SINGH,  7  L.  L.  J.  466;  A.  L 
R.  1925  Lah.  651  261 

• O.  XXI  I, r.  4— Mortgage  suit—  Joint  mortgagors 

—Death  of  one    mortgagor— Legal     representatives 
not  brought  on  record — Abatement,  extent  of. 
The  failure  in  a  mortgage  suit  to  bring  on  record 
the  heirs  of  one  of  the  joint  executants  of  the  mort- 
gage-deed, who  has  died  during  the  pendency  of  the 
suit,  does  not  result  in  the  abatement  of  the  suit  as 
a  whole,  but  only  as  regards  the  share  of  the  deceased 
whose  heirs  would  not  be  bound  by  the  decree  passed 
in  the  suit.    N  NARAYAN  v.  DHUDABAI,  21  N.  L.  R.  38; 
A.  I.  R.  1925  Nag.  299  663 

0.   XXI I ,r.  4— Suit  for    possession    against 

several   defendants   as  trespassers,  dismissal    of — 

Appeal,  second—  Death  of  respondent — Legal    repre* 

sentatives  not  brought  on  record — Abatement,  extent  of. 

Plaintiff  sued  for  possession  of  certain  property  on 

the  allegation  that  the  defendants  were  in  possession 

of  it  as  trespassers.    The  defendants  claimed  to  be  in 

possession  of  the  property  as  the  reyersioners  of  the 

last    male-holder.    The   suit  was  dismissed  by  the 

Trial  Court  and  the  dismissal  was  upheld   by  thi 


,  92] 


Civil  Procedure  Code-~1908-contd. 


GENERAL  INDEX. 


iorf 


civil  Procedure  Code— 190 8— contd. 


lower  Appellate  Court  During  the  pendency  of  & 
second  appeal  by  the  plaintiff  in  the  High  Court  one 
of  the  defendants-respondents  died  and  his  legal 
representatives  were  not  brought  upon  the  record 
within  the  prescribed  period 

Held,  that  inasmuch  as  the  relief  sought  against 
the  defendants  in  the  plaint  was  joint  and  indivisible, 
the  appeal  must  be  held  to  have  abated  in  toto  and 
that  it  was  not  open  to  the  plaintiff  to  urge  that  as 
the  defendants  claimed  to  be  in  possession  as  the 
reversionary  heirs  of  the  last  male-holder  the  appeal 
should  be  held  to  have  abated  only  with  regard  to 
the  deceased  respondents'  share  in  the  estate  of  the 
last  male-holder  according  to  the  pedigree- table  set 
UP  by  the  defendants.  L  CHET  RAM  v  ILAICHO,  2  L  0 
178  38 

0  XXII,  r.  9  (2)— Abatement,  application  to 

set  aside — Delay— Sufficient  cause— Appellate  Court, 
interference 

Where  on  an  application  to  set  aside  an  abatement, 
the  Court  after  a  consideration  of  all  the  circum- 
stances holds  that  the  delay  in  making  the  applica- 
tion has  not  been  satisfactorily  accounted  for  and 
dismisses  the  application,  the  Appellate  Court  will  not 
interfere  with  the  order  of  dismissal  M  KOMARASAMI 
CHETTIV  SUNDAR  MUDALIAR,  23  L.  W  212  724 

0.    XXII,    r.    10— Death  or   retirement     of 

trustee — Addition  of  succeeding    trustee  as  party  to 

suit — Devolution  of  interest — Limitation 

Where  a  trustee   who  is  a  party  to    a  suit  either 

retires  or  dies  and  is    succeeded  in   office  by  another 

by  election  or   otherwise,    there    is   a  devolution  of 

interest  pending  suit  under  O  XXII,  r  10,  C   P    C , 

and  such  succeeding  trustee  can  be  added  as  party  to 

the   suit    under    the  said  provision  apart  from  any 

question    of   limitation     M    THIRUMALAT  PILLAI     v. 

AKUXACHALLA  PADAYACHI,  A  I  R  1926  h'ad  540     520 

•  0.    XXII,    r.  10 — Decree  against   widow  of 

deceased  debtor—Birth  of  posthumous  son— Legal 
jcpresrntatiie,  who  is—Execution,  whether  can 
proceed  against  son 

A  creditor  brought  a  suit  against  the  widow  of  a 
deceased  debtor  to  recover  the  debt  and  obtained  a 
decree  Subsequent  to  the  date  of  the  decree  the 
widow  gave  birth  to  a  son  The  decree-holder 
sought  to  execute  the  decree  against  the  son  as  the 
legal  representative  of  the  deceased  debtor  . 

Held,  that  on  the  analogy  of  the  provisions  of  O 
XXII,  r  10,  C  P  C  ,  the  son  who  really  represented 
the  estate  of  the  deceased  debtor  must  now  be  treated 
as  his  legal  representative  and  that  execution  could, 
therefore,  proceed  against  the  son  A  BATUK  NATH  v 
JUQAL  KISHORE,  24  A.  L  J  281,  A  I  R  1926  All  2*5 

551 

0.  XXIII,  r.11— Withdrawal  of  suit— Second 

suit  when  barred— Two  suits  involving  same  relief— 
Withdrawal  of  one — Other,  maintainability  of 
Under   0   XXIII,  0  P.  C ,  when  a  plaintiff  with- 
draws a  suit  without  the  permission  of  the  Court,  he 
is  precluded  from  instituting  fresh  suit,  but  this  does 
not  prevent  the  trial  of  a  subject-matter,  so  long  as 
such  trial    is  not  affected    by    the    principle    of   res 
judicata, 

A  filed  a  suit  and  attached  certain  property  before 
judgment  B  filed  a  claim  petition,  which  was  dis- 
missed, and  then  filed  a  suit  for  getting  the  summary 
grder  set  aside.  Subsequently  B  filed  another  suU 


for  declaration  of  his  right  to  the  property  and  for 
delivery  of  possession.  Both  these  suits  were  fifed 
within  a  year  of  the  date  of  the  order  on  the  claim 
petition.  B  withdrew  the  first  suit  as  being  unneces- 
sary with  the  permission  of  the  Court,  the  order  allow- 
ing withdrawal  not  mentioning  whether  it  was  with 
or  without  liberty  to  bring  a  fresh  suit  A  now  took 
the  objection  that  the  second  suit  was  not  maintain- 
able as  B  was  precluded  from  agitating  the  question 
of  setting  aside  the  claim  petition  therein  by  the  with- 
drawal of  the  first  suit  • 

Held,  that  a  declaration  of  his  title  claimed  by  B 
in  the  second  suit  involved  a  setting  aside  of  the 
older  on  the  claim  petition,  and  there  being  no  final 
adjudication  of  the  matter  in  the  first  suit,  and  the 
second  suit  being  filed  within  a  year  of  the  order  on 
the  claim  petition,  the  suit  was  maintainable  M 
RUDRAPPA  v  MARIAPPA,  A  I  R  1926  Mad  490  385 

0.  XXIII,  r.  1,    See  C  P.  C  ,  1908,  s  115  558 

• O.  XXIII,  r.  1,  8. 115—  Application  for  with' 

drawal  of  appeal—  Order  passed  for   withdrawal  of 

suit —Revision 

On  an  application  not  to  withdraw  the  appeal  but 
to  withdraw  the  suit  the  Appellate  Court  passed  the 
following  order  — 

"This  appeal  is  withdrawn,  hence  it  is  dismissed  , 
The  appellant  may  bring  a  fresh  suit  if  neces- 
sary'1 

He Id,  that  the  order  was  open  to  revision  inasmuch 
as  (t)  it  was  not  warranted  at  all  by  the  terms  of  th« 
application  and  (11)  it  was  passed  without  any  reasons 
and  without  the  Court  applying  its  mind  to  the 
question  whether  there  were  sufficient  grounds  to 
allow  a  withdrawal  with  permission  to  file  a  fresh  suit. 
A  RAM  BADAN  UPADHIVA  v  SANKATHA  MISRA  1030 

0.  XXIII,  r,  3.  See  C.  P.  C  ,  1908,  s.  104  If) 

600 

O.  XXIII,  r.  3— Compromise  between  parties  to 

suit— Application  to  pass  decree  in  tetms  thereof,  pen- 
dency of— Addition  of   third  person    as  party  with 
out  decidwg  validity    of  compromise,  legality   of — 
Remedy  of  party  affected- Madras  Local  Boaids  Act 
(XIV    of  1920),  ss  86,  38— Local  Goiernment,  poutr 
of,  to  rescind    contract    embodied    in    resolution  of 
Board-  Rights  of  third  parties 
Under  0  XX11I,  r  3,  C  P   C ,  where  the  terms  of 
a  compromise  are  legal  and  valid,  the  Court  is  bound 
to  pass  a  decree  in  teims  thereof     Where  the  original 
parties  to  the  suit  thus  terminate  it  by  a  la\\  f  ul  com- 
promise, it  is  not  competent   to  the  Court    to  add  a 
third  person  as   party   to  the  proceedings  to  agitate 
his  rights  therein     Ihe  remedy  of  such  person  *ho 
has    any  right    or  interest   in   the  subject-matter  of 
the  suit" is  to  file  a  separate  suit. 

A  suit  by  the  plaintiff  against  a  Union  Board  in 
respect  of  the  ownership  of  certain  streets  in  the  town 
was  settled  by  a  compromise  under  which  the  plaint- 
iffs title  to  the  streets  was  recognised  but  the  public 
were  to  be  given  access  during  specified  hours  m  a 
day  The  said  compromise  was  embodied  in  a  resolu- 
tion of  the  Board  and  an  application  was  made  by 
both  parties  to  the  Court  to  pass  a  decree  in  terms 
thereof.  Pending  the  disposal  of  the  petition,  the 
Government  acting  under  s  36  of  the  Madras  Local 
Boards  Act  rescinded  the  said  resolution  and  applied 
to  be  mac!e  a  parly  to  the  suit,  and  without  deciding 
the  question  whether  the  compromise  between  th* 


1078 

Civil  Procedure  Code— 1908— contd. 


INDIAN  OASES. 


[19S6 


Civil  Procedure  Code—  1908-contd. 


parties  to  the  suit  was  lawful  or  not,  the  Court  added 
the  Government  ns  party  to  the  euit.  On  revision 
against  thp  said  order  • 

Held,  that  the  order  adding  the  Secretary  of 
State  ns  partv,  without  determining  whether  the  com- 
promise was  legal  and  put  an  end  to  the  suit  01  not, 
was  irregular  and  must  bo  set  aside  and  the  case 
reman de d  to  the  Court  for  deciding  whether  the  com- 
promise was  legal  or  not, 

Qiurre  •-  Whether  it  is  competent  to  the  Govern- 
ment, under  s  38  of  the  Madias  Local  Boards  Act,  to 
cancel  a  resolution  of  a  Board  embodying  a  valid 
contract  with  a  third  person,  where  such  person  has 
acquired  valid  rights  thereunder  M  RAJPSWARI 

MtJTHTTRAMAlLlNOA   V     SffRBTARV   OF  I^TATE  FOR    INDIA    50 

M  L  J  59;  A  I  R  1926  Mad  341  311 
*—  —  O,  XXIV,  r.  5 —Mortgage  suit — Preliminary 

decree—Appeal--  Final  decree ,  when  can  be  passed 

Where  an  appeal  has  been  preferred  against  a 
prchmmnjv  decree  passed  in  a  mortgage  suit,  a  final 
decree  can  be  passed  only  aftei  the  piebminary  decree 
has  been  confirmed  or  vaned  by  the  Appellate  Court 
and  has  become  conclusive  between  the  parties  A 
LALMANV  SHUM  SINGH,  21  A.  L  J  288,  A  I  R.  1926 
AH  201  608 

0.  XXV,  r.  1  (3).  See  C  P.  0  ,  1908,  s  145 

546 
O.  XXVI,  r.  11  --Commissioner—  Omission  to 

record  evidence,  effect  of 

A  Commissioner  appointed  under  O  XXVI,  r.  11, 
C  P.  C  ,  is  bound  to  record  in  wilting  the  e\idence 
taken  by  him  Information  given  to  the  Commis- 
sioner bv  persons  who  aie  not  called  as  witnesses  and 
in  the  absence  of  parties  to  the  suit  and  ^hose  state- 
ments aie  not  i  educed  to  willing  is  not  legal  evi- 
dence upon  whieh  the  Commissioner  can  act  M 
"RAMAKKA  r  NRG\SAM  47  M.  800,  48  M.  L  J.  89,  A  T  T?, 
1925  Mad  145  792 

0.  XXX,  r.  1.  See  C  P  C  ,  1908,  O  XXI,  R  15 

387 
-"•— O.  XXX,  r,  1 — Suit  by  one  partner  to  recover 

debt  due  to  ibm — Paitnew,  others,  whether  necessary 

parties — Refusal   of     other    partners   to    join— Pro- 

cedure 

In  a  suit  by  one  partner  in  a  iirm  to  recover  a 
debt  due  to  the  Iirm,  the  other  partners  aie  necessary 
parties 

Wherein  such  a  suit  tbe  other  pnrtneis  refuse  to 
]om  as  plaintiffs,  the  correct  proceduie  is  to  join 
them  as  defendants  L  BULLI  MAL  v  JHAEBA,  7L  L 
J  280,  A.  I  R  1925  Lah  504  569 

- - —  O.  XXXII,  r.  3,  8.  47—  Execution  proceeding 
~  Guardian  ad  litem— JVo  formal  ordtr  of  appoint- 
ment—Failure  to  support  minors  case— Omission  to 
appear- Gross    negligence— Application     to   release 
minor's   property     from  attachment,  dismissal  of— 
Declaratory  suit  by  minor,  whether  maintainable 
The  mere  absence  of  a  foi  ma  I  oider  of  the  appoint- 
ment of  a  person  as  the  guaidian   ad  /item  of  a  minor- 
is  no   ground  for    holding   that  the  minor    was    not 
represented  at  all  in  the  suit. 

The  negligence  of  a  guardian  to  support  the  case  of 
a  minor,  in  the  alienee  of  anything  to  show  that  he 
did  qo  deliberately,  will  not  entitle  the  minor  to  avoid 
the  operation  of  tho  decree  parsed  therein 

The  mere  omission  of  a  guardian  to  appear  in  a  suit 
or  execution  proceedings  docs  not  neeepparily  amount 
to  gioss  negligence  on  the  part  of  the  'guardian. 


A  suit  by  a  person  for  a  declaration  that  an  order 
dismissing  an  application  filed  by  hie  guardian  to 
release  his  share  of  the  property  attached  in  execution 
as  he  was  discharged  by  the  decree  is  null  and  void, 
because  his  guardian  was  grossly  negliientin  protect- 
ing his  interests  in  execution  proceedings,  is  in  reality 
a  suit  to  eet  aside  the  auction-sale  held  subsequent  to 
the  dismissal  of  the  application  and  is  barred  under 
s  47  of  the  0.  P.  0.  N  SADASHEO  v.  KAKIM,  A.  I  R. 
1926  Nag  267  241 

O  XXXIII,  r.  1-  "Other  than  his    necessary 

wearing  apparel  and  the  subject-matter  of  the  suit" 
scope  of — Pauperism — Burden  of  proof. 
The   words    "other  than    his   necessary    wearing 
apparel   and    the  subject-matter  of  the  suit"  in  the 
Explanation  to  r    1  of  0    XXXIII,   C    P.   0 ,  only 
apply  in  a  case    where  no   specific  Court-fee    is  pre- 
scribed,   and    do   not  qualify  the    lirst   part    of  the 
Explanation  as  well 

The  onus  to  prove  pauperism  rests  on  the  person 
who  applies  for  leave  to  sue  as  a  pauper  N 
SHEIKH  BADAL  v.  ABDUL  RAHIM,  AIR.  1926  Nag  273 

785 

—  O.  XXX 1 1 1,  r.  1,  S.  11 5— Government  of  India 

Act,  1015,  (5  &  6  Geo  V,  c    07;,  s    107— Application 
for  leave  to  suein  forma  pauperis — Complicated  ques- 
tions, whether  can  be  gone  into  -Revision. 
On  an  application    for    leave  to  sue    to    in    forma 
pauperis,  it  is  not  desirable  for  a  Court  to    go  into    a 
complicated   question    of  limitation,  and    its  order  is 
liable  to  bf,  set  aside  in  revision    M  THAMAYA  " 


, 

SWAMI  v  THIRUVATHAHUNDRA  Doss,  (1925^  M  W  N  779- 
AIR  1926  Mad  135,  23  L,  W,  406  415 

-  O.  XXXIV  —  Suit  for  redemption  —  Decree  for 
possession—  Mesne  pro  fits  left  unascertained  —  Decree, 
whether  preliminary  or  final  —  Subsequent  application 
for  ascertainment  of  mesne  profits,  maintainability 

°f* 

In  an  appeal  from  a  decree  in  a  suit  for  redemption, 

the  Appellate  Court,  in  remanding  the  suit,  directed 
accounts  to  be  taken  up  to  the  date  fixed  for  redemp- 
tion The  Trial  Court  after  inquiry  found  that  the 
mortgage  amount  dcj  oaited  was  in  excess  of  the 
amount  due  to  the  mortgagee  Accordingly  a  decree 
was  given  to  the  plaintiff  for  possession  of  the  suit 
land  The  question  of  mesne  profits  was  left  un- 
decided 

Held,  (1)  that  the  decree  was  partly  final  and  partly 
preliminary,  final  as  to  possession  and  preliminary  m 
so  far  as  the  question  of  mesne  profits  was  left  un- 
decided , 

(2)  that  an  application,  therefore,  properly  lay  under 
O  XXXIV,  C  P  C  ,  for  the  ascertainment  of  mesne 
profits  M  MATTAPALLT  VENKATARATNAM  v.  VEPPU 
SITARAMAYYA,  A  I.  R.  1926  Mad.  305  314 

-  —O.  XXXIV,   rr.  4,    5—  Composite    decree  for 
sale  of  mortgaged  property  and  realisation  of  decree 
from  person    and    property    of     judgment-debtor— 
Absolute  decree,     whether    necessary—  Execution-* 
Objection  not  taken,  effect  of—  Application  for    salet 

A  prelnninnry  decree  under  r.  4  of  0  XXXIV  of 
the  C  P  C  for  the  sale  of  mortgaged  property  cannot 
be  executed  unless  made  absolute  under  r  5  of  the 
Older  Rule  5,  however,  does  not  apply  to  a  decree 
which  does  not  conform  tp  the  provisions  of  r,  4  Q( 
0,  XXXIV, 


Voi,  92] 


OBNBRAL  INDEX, 


1078 


Civil  Procedure  Code— 1908— contd. 

A  decree  directing  that  if  the  decretal  amount  ie 
not  paid  within  a  certain  period,  the  decree  shall  be 
realised  by  the  sale  of  the  hypothecated  property  and 
in  case  that  is  not  sufficient,  from  the  person  and 
property  of  the  debtor,  is  not  a  preliminary  decree  for 
sale  under  r  4  of  O  XXXIV,  C  P,  O  ,  and  is  capable 
of  execution 

Even  though  a  relief  may  not  have  been  granted 
by  the  decree,  yet  if  in  execution  proceedings  a  Court 
holds  that  a  party  is  entitled  to  such  relief  under  the 
decree,  it  is  not  open  to  the  parties  afterwards  to 
contend  that  no  such  relief  has  been  awarded  and  the 
matter  is  res  judicata 

After  a  preliminary  decree  for  sale  has  been  pass- 
ed, an  application  by  the  decree-holder  for  sale  of  the 
property  may  be  taken  to  be  an  application  for  an 
order  absolute  for  sale  L  BANU  MAL  v.  PARAS  RAM.  7 
L.  L.  J  397,  AIR  1925  Lah.  640  254 

O.  XXXIV,  r.  8.   See  0  P.  C  ,  1908,  s,  11  260 


0,  XXXIX,  rr,  1,  2. 


See  C  P  G ,  1908,  s   94 
615 


O.  XXXIX,  rr.  1,  2—  Specific  Relief  Art  (I  of 

1877),  88  4,  ^ — Injunction  restraining  Court  from 
executing  decree,  whether  can  be  granted— Subor- 
dinate Courts,  power  of 

A  subordinate  Court  has  no  power  under  the  C  P 
C  or  any  other  statutory  enactment  to  restrain 
another  Court  by  an  injunction  from  executing  a 
decree  L  KANSHI  RAM  v  PRABH  DIAL  ARJAN  DASS  & 
Co  ,  7  L  L  J  457,  AIR  1925  Lah  618  259 

* O.  XXXIX,  r.   2 — Defendant  in  possession — 

Temporary  injunction  restraining  defendant's  user, 
when  can  be  granted 

Courts,  as  a  general  rule,  refuse  to  interfere  by  way 
of  injunction  to  restrain  a  defendant  from  making 
such  use  as  he  may  think  fit  of  the  property  of  which  he 
is  in  possession  But  in  ceitam  cases  the  Court  would 
interfere  with  the  rights  of  the  defendant,  for  instance 
where  the  defendant  contemplates  tha  destruction,  or 
a  change  in  the  nature,  of  the  corpus  S  MUNICIPALITY 
OFTANDO  ADAMV  KHAIR  MAHOMKD,  A.  I  R  1925  Smd 
260  1019 

O.   XL,  r.    1 — Suit    to  enforce  agreement  to 

execute  simple  mortgage— Receiver,  whether  can  be 
appointed. 

It  is  open  to  the  Court  in  a  suit-  for  specific  per- 
formance of  an  agreement  to  sell  immoveable  property 
also  to  give  a  decree  for  possession,  In  such  a  suit  it 
is  not  an  improper  exercise  of  discretion  for  the  Court 
to  allow  the  plaint  to  be  amended  so  as  to  include  an 
express  prayer  for  possession  M  CHOCKALINQAM  PILLAI 
v  PICHAPPA  CHBTTIAH,  22  L  W  579;  (1925)  M  W  N 
802,  A  I,  R  1926  Mad.  155  599 

0.  XL,  rr.  1,  4,  0.  XLIII,  r.  1   (*)~~General 

Clauses  Act   (X  of  1897),    s.   16— Order    removing 
Receiver —Appeal,  if  lies — 'Any  person\  meaning  of 
— Receiver,  when  can  be  removed— Judicial  discretion 
— Party,  when  can  be  appointed—Consent  of  parties. 
An  appeal  lies  against  an  order  removing  a  Receiver. 
The  order  is  final  and  appealable  even  though  selec- 
tion of   the*  aucceasor   has  not  been  made. 

The  words  'any  person1  in  0,  XL,  r    1    (6),  C.  P  C\. 

refer  to  persons   interested  in   the  property  and   in 

possession  or  custody  of  it  prior  to  the  passing  of  u 

order  appointing  a  Receiver, 

The  selection  and  appointment  of  a  particular  person 


Civil  Procedure  Code— 1908—  contd, 

as  a  Receiver  is  a  matter  of  judicial  discretion  to  be 
datermined  by  the  Oourt  according  to  the  circum* 
stances  of  the  casa. 

It  is  a  settled  rule  that  one  of  the  parties  to  a  cause 
should  not  be  appointed  Receiver  without  the  consent 
of  the  other  parties  unless  a  very  special  case  is  made 
out 

On  an  application  for  the  removal  of  a  Receiver, 
the  Court  should  properly  consider  his  past 
relations  to  the  parties  as  well  as  his  present 
svmp^thies  If  by  reason  of  interest  shown  bv  the 
Receiver  as  an  officer  of  the  Court  his  efficiency  is  im- 
paired the  Court  will  be  justified  in  removing  him. 
C  SRIPATT  DUTTA  v  BIBHUTI  BHUSAN  UUTTA,  53  C  319, 
A  L  R  1926  Cal.  593  940 

O.XL,  r.  4,    0,  XLIH,  r.  1  (S)— Receiver— 

Order  determining  liability  of  Receiver   on  accounts 
and  directing  payment — Appeal,  whether  lies. 
An  app3al  is  a  creature  of  Statute  and  unless  the 
right  of  appeal  is  specially  conferred  by  some  law, 
no  one  has  a  right  to  appeal. 

The  operative  part  of  r  4  of  O  XL,  C  P  0  ,  is  the 
part  which  enables  the  Court  to  attach  and  sell  the 
Receiver's  property,  els  (a\  (b)  and  (c)  of  the  rule  give 
only  the  grounds  on  which  such  an  cider  can  be 
made  Unless,  therefore,  an  order  is  mado  under  the 
operative  part  of  the  rule,  no  appeal  would  he  under 
r  1  (9)  of.  O  XLIII  of  the  Code 

An  order  determining  the  liability  of  the  Receiver 
and  directing  him  to  pay  a  csrtam  sum  of  money  into 
Court  is  not  open  to  appeal  either  at  the  Jnstance  of 
the  Receiver  or  at  the  instance  of  any  other  partv 
R  ARUNCHELL\M  CEIR-THAR  v  U  Po  Lu,  AIR.  1^25 
Rang  256,  3  R  31*.  4  Bur  L  J  91  631 

O.  XLI,  r.  1 9— Appeal— Dismissal  -for  default 

— Laches  of  Advocate — Mistake  of  clerk — Restoration 

Ths  laches  of  an  Advocate  or    the  careless  mistake 

of  hm  clerk  is  not  sufficient  cause  for  restoration  of  an 

appeal   dismissed    for  default      R    MAU>fa    THAN   v 

ZAINAT  BIBI,  3  R  488,  AIR  1925  Rang  50        208 

„ —  o.  XLI,  r,  23 —Trial  Court,  findings  of    on 

all    issues — Order  of  remand  for  further  evidence 

on  some  issuer  only — Jurisdiction 

An  order  of  remand  by  a  Court  of  Appeal  in  a 
case  where  the  Trial  Court  has  disposed  itself  of  all 
the  issues  and  given  a  decree  on  those  findings  cannot 
come  within  the  scope  of  O  XLI,  r  23,  C  P  C ,  and 
is,  therefore,  not  appealable 

A  Court  of  Appeal  acts  without  jurisdiction  if  it 
remands  "the  whole  case1'  while  it  wants  further  evi- 
dence only  on  two  issues  The  proper  course  in  such 
circumstances  is  to  direct  the  Trial  Court  to  take  the 
requisite  further  evidence  and  submit  it  to  the  Appel- 
late Court  for  recording  its  own  findings  M  VENKATA- 

RAMA  AlYAR  V.  SlJNDARAM  AlTAR,  (1026,*  M.  W    N   48 

1045 
0.  XLI,  r.  23,8,  151—  Remand,  order  of, 

affecting  decision  of  whole  suit-^Appeal,  whether 

lies, 

An  order  of  remand  which  is  not  confined  to  a 
preliminary  point  but  affects  the  decision  of  the 
whole  suit,  must  be  deemed  to  have  been  made  in  th* 
exercise  of  the  inherent  powers  of  the  Court  and  ia 
not  open  to  appeal  Pat  B  ALAR  AM  MANJHI  v.  JAG  AN- 
NATHMANJHI,  A.  I  R  192S  Pat  760  684 
O,  XLI,  r.  23,  0.  XLIM,  r.  1  (u)— Suit  decided 

on  merits-* Appeal-— Remand  for  re-decision   after 

adding   necwary  party— Appeal^    whether  Ziea. 


10*0 

Civil  Procedure  Code-1908-  contd, 

Where  an  Appellate  Court  sets  aside  a  judgment  of 
the  Trial  Court  which  has  been  given  on  the  merits 
and  remands  the  case  for  a  fresh  trial  on  the  ground 
that  a  necessary  party  has  not  been  impleaded  as  a 
defendant  to  the  suit,  the  order  of  remand  dors  not 
fall  within  the  purview  of  r.  23,  0.  XLl  of  the  C  P.  C. 
and  is  not,  therefore,  appealable  under  r.  1  (u)  of 
0.  XLIII  R  MA  MB  MYA  v  MA  MIN  ZAN,  A.  I  R. 
1925  Rang.  320;  3  R  490;  4  Bur.  L.  J.  159  368 

ta Oi  XLl,  T,  25 — Remand,  what  amounts  to — 

Case  returned  for  finding,  whether  remanded. 

A  case  can  be  remanded  only  when  it  is  returned  for 
a  fresh  decision.  The  word  remand  is  not  applicable 
to  an  order  returning  a  case  for  a  finding  on  a  par- 
ticular issue.  R  NACHIAPPA  CHETTIAR  v.  MAHOMED 
SABIR  KHAN,  A.  I.  R  1925  Rang.  303;  4  Bur.  L  J.  135 

370 

O.  XLl,    r,    25,5.    115— Appeal— Finding 

misread— Revision. 

Where  a  lower  Appellate  Court  completely  misreads 
the  findings  of  the  Trial  Court,  it  acts  with  material 
irregularity  in  the  exercise  of  its  jurisdiction,  and  its 
order  is  open  to  revision.  A  GHISBU  v.  AMIR  A  LI  KHAN 

555 

0,  XLl,  r,  27.    See  BENGAL  TENANCY   ACT, 

1885,  s   105  601 

O.  XLl,  r.  27— Appellate  Court— Additional 

evidence,  admission  of—Finding  of  fact— Appeal, 
second — Interference  by  High  Court. 
Where  an  Appellate  Court  has  relied  for  its  decision 
upon  a  document  which  is  inadmissible  in  evidence, 
a  Court  of  second  appeal  would  be  justified  in  remand- 
ing the  case  for  decision  to  the  Appellate  Court 
with  a  direction  to  exclude  that  document  from  its 
consideration.  But  where  an  Appellate  Court  although 
it  admitted  as  additional  evidence  certain  documents 
in  appeal  did  not  base  its  finding  upon  them,  a 
finding  of  fact  arrived  at  by  that  Court  will  not  be 
interfered  with  by  the  High  Court  in  second  appeal. 
M  KOYYALAMUDI  CHINNAYYA  v  KOTYALAMUDI  MANGAMMA 

661 

O.  XLIII,  r.1  (d).  See  GUARDIANS  AND  WARDS 

ACT,  1890,  SB  25,47  36 


—  O.XLIII,r.1  (8). 


See  C.  P.  C  ,  1908,  0.  XL,  R.  1 
See  C.  P.  CM  1908,  0.  XL,  R.  4 


940 
631 


0.  XLV— Addition  of  parties— Power  of  High 

Court.    See  0  P.  C  ,  1908,  O.  I,  R.  10  125 

0.  XLVM,  r.  1— -Review— • "Any  other  sufficient 

reason"  meaning  of— Fraud  and  undue  influence. 
Order  XLVII,  r,  1  of  the  C.  P.  C  must  be  read  as 
in  itself  definitive  of  the  limits  within  which  review 
of  a  decree  or  order  is  permitted  and  the  words  "any 
other  sufficient  ,  reason"  mean  grounds  at  least 
analogous  to  those  specified  in  the  rule.  Fraud  and 
undue  influence,  do  not  constitute  grounds  analogous 
to  those  specified  in  0.  XLVII,  r.  1.  A  RAQHUBIR 
BINQH  v.  NATHU.MAL  1 01 3 

0,  XLvil,  r.   4— Review— Notice   to    party 

affected,  neces$ity  o/. 

Where  a  plaint  is  ordered  to  be  returned  for  pre- 
sentation to  the  proper  Court  within  a  specified  time, 
it  U  not  open  to  the  Court  without  notice  to  the 
defendant  to  rt?iiw  ita  order  and? ire  additional  time 


,OA8Bfl,  [1926 

Civil  Procedure  Code— 1908;- ceatd, 

to  the  plaintiff  for  payment  of  additional  Cour>feefl,' 
M  'KOMMARBDDI  RAMACHANPRAYYA  v.  VODURY  VENKATA- 
RATNAM,  22  L.  W.  582;  (1925)  M.  W.  N.  804;  AIR. 
1926  Mad.  133  800 

Sch,  M,  para.1— Arbitration  through  Court 

— Arbitrator  requested  to  decide  extraneous  matter 
— Award,  whether  can  be  enforced. 
Where  a  matter  in  dispute  in  a  suit  is  referred  to 
arbitration 'through  the  Court  and  the  parties  private- 
ly request  the  arbitrator  to  decide  a  matter  which  is 
extraneous  to  the  suit,  his  decision  on  the  latter 
cannot  be  embodied  in  the  decree  to  be  passed  in 
the  suit,  but  there  is  nothing  to  prevent  the  parties 
from  enforcing  the  award  relating  to  the  extraneous 
matter  in  a  separate  suit  M  NARATANASWAMI  IYENQAB 
v  THIPPAYYA,  (1936)  M.  W.  N  1;  23  L  W.  382;  A  I.  R. 
1926  Mad.  366  847 

8Ch.  II,  paras.  1,  2,  15- Reference  to  arbi- 
tration  in  pending  suit— Matters  outside   scope  of 
suit,  whether  can  be  referred — Award  in  excess   of 
matters  referred,  validity  of— Conclusions  influenc- 
ed by  extraneous  matters,  effect  of, 
In  a  pending  suit  a  Court  has  no  power  to  refer  to 
arbitration  any  questions  between  the  parties  to  the 
suit  other  than  those  in  question  in  the  suit,  or  any 
questions  in  which  any  one  not  a  party  to  the  suit  is 
concerned. 

It  is  incumbent  upon  arbitrators  acting  under  an 
order  of  reference  made  under  paras.  1  and  2  of  Sch. 
II,  C  P  C.,  to  comply  strictly  with  its  terms.  The 
Court  does  not  by  making  the  order  of  reference,  part 
wftli  its  duty  to  supervise  the  proceedings  of  the 
arbitrators  acting  under  the  order. 

An  award  made  under  such  an  order  otherwise 
than  in  accordance  with  the  authority  conferred  upon 
the  arbitrators  by  the  order,  is  "otherwise  invalid" 
and  may  be  set  aside  by  the  Court  under  para.  1 5  of 
Sch.  II,  C.  P  C. 

An  award  made  in  pursuance  of  an  order  of 
reference  made  in  a  pending  suit,  the  conclusions  of 
which  art  dictated  or  coloured  by  the  view  taken  by 
the  arbitrators  of  other  questions  between  the  partie'a 
or  some  of  them  to  which  the  suit  had  no  reference 
cannot  be  upheld.  P.  C.  RAM  PROTAP  CHAMRIA  v. 
DURGA  PROSAD  CHAMRIA,  3  0.  W.  N.  127,  A.  1.  R, 
1925  P.  C.  293;  49  M.  L.  J  812,  43  C.  L.  J  14;  24  A. 
L  J.  13;  (1926)  M  W.  N.  96;  3  Pat.  L  R.  330;  28  Bom. 
L.R.  217;  53  C.  258  633 

Soh.  II,  paras,  20,  21—  Arbitration— Award 

— Reference  and  existence  of  dispute,  whether  can 
be  enquired  into. 

On  an  application  being  made  under  para.  20  of 
Sch.  II,  C  P  C.,  it  is  open  to  the  Court  to  enquire 
whether  there  was  any  matter  in  dispute  between  the 
parties  to  be  referred  to  arbitration  and  whether 
there  was,  as  a  matter  of  fact,  any  reference  to  arbitra- 
tion by  the  parties.  L  RADHA  KISHKN-CHCNI  LAL  v. 
AHSA  MAL-ISHAE  DAS,  7  L.  L.  J.  603;  A.  1.  R.  1926  Lah. 
91  70S 
Sch.  Ill,  para,  11— Decree  transferred  to 

Collector  for    execution — Collectort    jurisdiction  cf 

— Civil  Court,  powers  of. 

No  sooner  is  an  order  for  transfer  of  a  decree  for 
execution  to  the  Collector  made  than  he  is  seiied  of 
the  case  and  not  on  the  date  such  order  reaches  him. 
Any  tiansfer  of  the  attached  property  subsequent  to 
the  date  o!  the  order  of  transfer  during  the  pendency 
of  the  proceedings  before  Jiim  is  void 


Vol.  92] 


GENERAL  INDEX, 


1061 


Civil  Procedure  Code-  1908-eoncld, 

During  the  period  the  Collector  has  jurisdiction 
the  Civil  Qourt  ceases  to  have  any  power  to  act  in 
execution  of  the  decree  transferred.  N  TIKARAM  v. 
NARAYAN,  A.  I.  R.  1926  Nag.  246  44 
Sch.  Ill,  para,  11—  Execution  of  decree— 

Property  held  by  Collector —Attachment,  validity  of. 

Where  the  Collector  holds  certain  property  belong- 
ing to  a  •judgment-debtor  in  execution  of  a  decree 
under  para.  11  of  Sch.  Ill,  C.  P.  C  ,  a  Civil  Court  has 
no  jurisdiction  to  direct  the  attachment  and  sale  of 
such  property  in  execution  of  another  decree  against 
the  same  judgment-debtor.  O  JANG  BAHADUR  v.  JAGAT 
NARAIN,  A.  I.  R.  1920  Oudh  318  906 

Colonization  of  Government  Lands   (Punjab) 
Act  (V  Of  1912),  «.    1 9— Agreement   by    tenant  to 
hold  land  jointly  -with  another,  validity  of. 
A  Government  tenant  of  a  horse-breeding  tenancy 
jexecuted  an  agreement  in  favour  of  his  brother  recit- 
ing that  he  and  his  brother  had  jointly  purchased  the 
mare  required  for  the  grant  of  land  and  paid  for  the 
grant  out  of  ]oint  funds  and  that   the  land  would  be 
considered  their  joint  property  in  future 

Held,  that  in  the  absence  of  the  consent  of  the  Com- 
missioner or  other  officer  specified  in  s.  19  of  the 
Colonization  of  Government  Lands  (Punjab)  Act, 
the  agreement  was  void  under  the  provisions  of 
that  section  and  could  not  be  enforced  in  a  Civil  Court. 
L  HUSSAIN  BAKHSH  v.  SARBULAND,  7  L.  L.  J.  548,  6  L 
536,  A.I.  R  1926Lah.l4  268 

Companies   Act    (VII  of  1913),  ss.  207,  215— 

Voluntary    liquidation — Decree     obtained      against 
Company  in  liquidation— Execution,  whether  can  be 
allowed  to  proceed — High  Court,  duty  of 
Section  215  of  the  Companies  Act  lays  a  duty  upon 
the  High  Court  to  see  that  justice  is  done    in  cases  of 
voluntary  liquidation 

Under  a  207  (1)  of  the  Companies  Act  the  assets  of 
a  Company  which  is  being  voluntarily  wound  up  must 
be  applied  in  satisfaction  of  its  liabilities  pan  passu. 
A  person  who  has  obtained  a  decree  against  such  a 
Company,  therefore,  cannot  be  allowed  to  realise  his 
decree  by  way  of  execution  inasmuch  as  to  permit  him 
to  do  so  would  give  him  more  than  his  share  of  the 
assets  of  the  ComDany.  O  NATIONAL  BANK  OF  INDIA 
v.  LAKHPAT  RAI,  2  0  W.  N.  508;  A  I  R  1925  Oudh  483 

144 

8,  235 — Directors  of  Company,  decitwn  of 

— Imprudent  act — Personal  liability   of    Directors, 
when  arises—Personal    gam   acquired  by  Director — 
Refund — Managing  Director,  duties  of — Act  inspir- 
ed by  personal  motives—Liability. 
Directors  of  a  Company  acting  within  their  powers 
and  with  reasonable  care,  and  honestly  in  the  interests 
of  the  Company,  are  not  personally  liable  for  losses 
which  the  Company  may  suffer  by  reason  of  their 
mistakes  or  errors  of  judgment. 

Facts  which  show  imprudence  in  the  exercise  of 
powers  conferred  upon  the  Directors  of  a  Company 
will  not  subject  them  to  personal  responsibility,  the 
imprudence  must  be  so  great  and  manifest  as  to 
amount  to  gross  negligence,  as  for  example  where  the 
Directors  are  cognizant  of  circumstances  of  such  a 
character,  so  plain,  so  manifest,  and  so  simple  in 
operation,  that  no  man  with  any  ordinary  degree  of 
prudence  acting  on  his  own  behalf  would  have  entered 
into  such  a  transaction  as  the  Directors  have  entered 
into.  But  if  the  Directors  are  authorized  to  do  an 
act  in  itself  imprudent,  they  are  not  to  be  held  res- 
ponsible ior  the  consequences  of  doing  it, 


Companies  Act-concld. 

In  respect  of  duties  which,  having  regard  to  the 
exigencies  of  business  and  the  Articles  of  Association, 
may  properly  be  left  to  some  other  official,  the  Direc- 
tors are,  in  the  absence  of  grounds  for  suspicion, 
justified  in  trusting  that  official  to  perform  such 
duties  honestly. 

The  Directors  must,  however,  observe  good  faith 
towards  their  share-holders  and  towards  those  who 
take  shares  from  the  Company  and  become  co-adven- 
turers with  themselves  and  others  who  may  join  them. 
The  maxim  caveat  emptor  has  no  application  to  such 
cases,  and  Directors  Vho  so  use  their  powers  as  to 
obtain  benefits  for  themselves  at  the  expense  of  the 
share-holders,  without  informing  them  of  the  fact, 
cannot  retain  those  benefits  and  must  account  for 
them  to  the  Company  so  that  all  the  share-holders 
may  participate  in  them 

The  mere  fact  that  the  Directors  of  a  Company 
carrying  on  a  banking  business  allow  advances  to  be 
made  on  the  strength  of  a  promise  by  the  debtor  to 
execute  a  mortgage  instead  of  the  mortgage  itself, 
does  not  amount  to  an  act  of  misfeasance  on  the  part 
of  the  Directors  so  as  to  make  them  personally  liable 
to  the  extent  of  the  amount  of  the  advances. 

Where  the  Directors  of  a  Bank  permit  a  depositor 
to  make  an  over-draft  and  one  of  the  Directors  who 
is  a  creditor  of  such  depositor  receives  a  portion  of 
the  amount  represented  by  the  over-draft  in  payment 
of  the  debt  due  to  him  by  the  depositor,  such  Director 
cannot  be  allowed  to  retain  the  amount  to  the  detri- 
ment of  the  share-holders  and  the  creditors  of  the 
Bank  and  is  liable  to  refund  it  to  the  Bank. 

The  duties  of  a  Managing  Director  are  of  a  higher 
standard  than  of  an  ordinary  Director,  and  where  bv 
any  act  of  the  Managing  Director  which  is  inspired 
by  motives  of  personal  gain  the  Bank  suffers  loss, 
the  Managing  Director  is  liable  to  make'  good  such 
loss  O  S  C  MITRA  v  NAWAB  ALI  KHAV.  2  OWN 
920;  A.I.  R  10'26 Oudh  153  50 

Compromise  consented  to  by  Pleader,  when  can  be 

set  aside — Fraud — Collusion 

A  compromise  consented  to  by  a  Pleader  dulyauthor- 
ised  in  that  behalf  will  not  be  set  aside,  unless 
fraud  or  collusion  ia  imputed  to  the  Pleader  .  Pat 
LATIRENTIUS  EKKAV  DmTKiKoERi,4  Pat.  766*  AIR 
1926  Pat  73,  7  P  L.  T.  362  '  179 

Compromise  decree  -Time    lixed    for    payment, 
whether  can  be  extended.    See  C.  P.  C  ,  1908,  s  148 

822 

Confession. 

See  (i)  CR.  P  C  ,  Ifc98,  s.  164. 

(li)  EVIDENCE  ACT,  1872,  ss.  24  TO  30 
Consideration,  inadequacy  of.    See  MORTGAGE  SUIT 

346 
Construction  Of  decree — Executing  Court,  duty  of 

— Reference  to  pleadings  and  judgment 

Though  an  Executing  Court  cannot  go  behind  the 
decree,  it  ought  to  interpret  the  decree  when  an 
application  for  its  execution  is  presented  before  it,  and 
for  that  purpose,  it  ought  to  refer  to  the  pleadings  in 
the  case  and  to  the  judgment  passed  by  the  Court, 
Pat  SAHAI  MISTRI  v.  SATILI  DARJI  *  133 

Construction  of  deed. 

The  primary  object  of  all  interpretation  is  to  deter- 
mine what  intention  is  conveyed  by  the  deed  and  the 
primary  source  of  determining  such  an  intention  is 
the  language  used  in  the  deed  O  BASHIR  AHMAD  v. 
ZOBAIDAKHATUH,  3  0,  W.  1?.  105;  A,  I,  R,  1926  Oudh 
186  265 


1081 


INDIAN  GASES, 


(19*0 


Construction    Of  document— Grant  of  income  of 
property,  whether  grant  of  property  itself. 
A  grant  of  the  income  of  certain    property  without 

any  limitation  is  a   grant  of  the  property   itself.    M 

VBNCATACHARUR    V.  BQNTHAM    PACHAYAPPA    CHBTTY,     22 

L,  W.  698,  (1926;  M.  W.  N.  106;  A.  I.  E.  J926  Mad.  250 


Construction  of  document— ooncW, 


— Hire-purchase  agreement — Agreement  to  sell — 

Property i  when  passes— Contract  Act  (IX  of  187  2)^ 
s  78. 

Under  a  hire-purchase  agreement,  in  the  sense  in 
which  it  is  understood  in  England,  there  is  no 
absolute  sale  of  the  chattel  but  only  a  hiring  of  it  by  a 
parson  who  has  the  option  of  returning  it  at  any  time 
before  the  various  instalments  are  paid.  Under  such 
an  agreement  the  property  in  the  chattel  does  not  pass 
to  the  purchaser  until  the  whole  price  has  been  paid. 

An  agreement  entered  into  between  tho  parties  pro* 
vided  that  the  plaintiff  had  agreed  to  sell  to  the 
defendant  on  the  hire-purchase  system,  for  a  certain 
sum  of  money,  a  certain  number  of  motor-lorries  in 
consideration  of  payment  of  the  price  by  certain 
instalments  settled  between  the  parties  It  was  also 
provided  that  in  case  of  failure  to  pay  any  of  the 
instalments  on  the  due  date,  the  previous  payments 
would  be  considered  null  and  void  The  lorries 
were  not  to  be  considered  as  sold  until  the  final  pay- 
ment was  made.  The  defendant  was  prohibited  from 
mortgaging  or  disposing  of  the  lorries  until  the  final 
instalment  was  paid  and  the  plaintiff  had  the  right  to 
seize  the  lorries  wherever  they  may  be.  A  portion 
of  the  price  was  paid  at  the  time  of  the  execution 
of  the  agreement  and  delivery  of  the  lorries  was  given 
to  the  defendant  and  they  were  transferred  to  his  name 
in  the  registers  kept  by  the  Commissioner  of  Police. 
Defendant  paid  some  of  the  instalments  and  then 
made  default.  Plaintiff  thereupon  brought  a  suit  to 
recover  from  the  defendant  the  balance  of  the  unpaid 
instalments  together  with  damages  alleging  that  the 
defendant  was  merely  a  hirer  of  the  lorries  and  in 
the  alternative  to  recover  the  balance  of  the  price  if 
it  was  held  that  the  agreement  was  one  of  sale 

Held,  (1)  that  the  agreement  was  one  of  sale  pro- 
viding for  the  price  to  be  paid  by  instalments  and  that 
the  property  in  the  lorries  had  passed  to  the  defend- 
ant on  the  execution  of  the  document, 

(2)  that  the  plaintiff  was,  therefore,  entitled  only  to 
claim  the  balance  of  the  purchase-money  which  had 
not  been  paid  by  the  defendant.  B  CECIL  COLE  v 
NANALIL  MORAJI  DAVE,  26  Bom.  L.  R.  880;  AIR. 
1925  Bom  18;  49  B.  172  191 
Lease,  whether  agricultural  or  residential — 

Heritable  lease— Ejectment 

A  plot  of  land  upon  which  there  were  a  certain 
number  of  f nut-trees  was  leased  to  the  defendants 
who  were  to  enjoy  the  land  by  erecting  houses  on  it 
and  planting,  if  they  so  liked,  other  fruit-trees  It 
was  provided  that  the  lease  should  continue  to  the 
defendants'  heirs,  but  that  if  at  any  time  the  lessor 
should  require  the  land  he  would  give  notice  to  the 
lessees  who  would  give  up  the  land  on  receipt  of  the 
value  of  fruit-treep,  etc* : 

Held,  (I)  that  the  lease  was  one  for  residential  and 
not  for  horticultural  or  agricultural  purposes  and  was, 
therefore,  governed  by  the  Transfer  of  Property  Act 
and  not  by  the  Bengal  Tenancy  Act  ; 

(2)  that  the  rights  of  the  parties  must  be  governed 
on  a   construction  of   the  lease   itself  and    that  the 
conduct  of  the  parties  after  the  lease  had  been  enter- 
ed into  could  not  be  taken  into  consideration; 

(3)  that  the  land  was  to  be  enjoyed  by  the  defend- 
ants from  generation  to  generation  so  long  as  the 


landlord  did  not  require  it  for  his  own  purposes,  but 
that  if  he  so  re  quired  it,  he  had  the  right  to  re-enter 
after  giving  notire  and  paying  compensation  in 
accordance  with  the  terms  of  the  lease.  C  GOPAL 
CHANDRA  BANERJEE  v.  BHUTNATH  SASMAL,  42  C.  L.  J.  520; 
A.  LR.  1926  Cal.  312  411 

Mortgaye^deed—  Compound  interest,  when  can 

be  charged. 

A  mortgage-deed  stated  that  the  mortgage  was  for 
a  period  of  four  years  and  that  interest  would  be 
calculated  every  two  years: 

Held,  that  in  the  absence  of  an  express  stipulation 
in  the  deed  for  payment  of  compound  interest,  the 
deed  could  not  be  construed  as  meaning  that  com- 
pound interest  was  to  be  charged  after  every  two 
years  L  PABBODH  SINGH  v.  BODH  RAJ,  7  L.  L  J.  414; 
A.  I.  R.  1925  Lah.  603  195 

Construction  Of  Statute— Principles  applicable 

It  is  an  elementary  principle  of  interpretation  that 
the  plain  intention  of  the  Legislature  as  expressed 
by  the  language  employed  is  to  be  accepted  and 
given  effect  to, 

If  the  language  admits  of  more  than  one  construc- 
tion, the  meaning  is  to  be  sought  not  in  the  wide 
sea  of  speculation  nnd  surmise  but  from  such  con- 
jectures as  are  drawn  from  the  words  alone  or  some- 
thing contained  in  them  N  VITHOBA  v  SADASHEO,  A. 
I  R  1926  Nag  253  58 

Contract— Repudiation  by  one  party—Remedies  of 

other  party— Long  delay— Implied  abandonment  of 

contract 

If  one  party  to  a  contract  repudiates  it,  the  other 
party  may  treat  the  repudiation  as  inoperative,  and 
at  the  end  of  the  period  of  the  contract,  treat  the 
other  party  as  responsible  for  all  the  consequences  of 
non-performance,  thereby  keeping  the  contract  alive, 
or,  on  the  other  hand,  he  may  treat  the  repudiation 
as  a  wrongful  putting  an  end  to  the  contract,  and 
may  at  once  bring  his  action  as  on  a  breach  of  it.  A 
promisee  cannot,  however,  both  sue  upon  the  breach 
and  also  keep  the  contract  open. 

Where  one  party  to  a  contract  by  acts  and  conduct 
evinces  an  intention  no  longer  to  be  bound  by  it,  the 
other  party  will  be  justified  in  regarding  himself  as 
having  been  emancipated 

A  party  cannot  repudiate  a  contract,  wait  a  long 
time  and  thru  suddenly  insist  upon  its  performance, 
long  delay  coupled  with  repudiation  will  amount  to 
conduct  giving  rise  to  an  implication  of  abandonment 
of  the  contract  M  NARASIMHA  MUDALI  v.  Pom  NARA- 
YANASAMI  CHKTTY,  22  L.  W.  637;  49  M,  L.  J  720;  A.  L 
R.  1926  Mad  118  333 

Contract  Act  (IX  Of  1872),  88.  16,  74— Landlord 

and    tenant—  Kabuliy at—Interest,    high   rate   of — 

Undue  influence — Penalty. 

In  the  absence  of  any  evidence  that  at  the  time  when 
a  kabuliyat  was  executed,  the  landlord  exercised  undue 
influence  over  the  tenant  and  that  the  latter  was  not  a 
free  agent,  the  landlord  is  entitled  to  recover  interest  on 
arrears  of  rent  at  the  rate  stipulated  in  the  kabuliyat,  C 
BABHIRULLAH  BHUYA  v  MKAJAN,  A.  I.  R.  1926  Cal  690 

593 
8. 2  3  —  A  bkari  license — Prohibition  to  transfer 

and  to    sub-let— Partnership  by     licensee,    whether 

forbidden— Foreign     law — Law   of  Mysore  State**- 

Question  of  fact 

What  a  foreign  law  is  on  a  particular  point,  is  a 
question  of  fact  and  has  to  be  proved  by  the  party 
setting  it  up. 

Where  by  the  terms  of  auAbkari  license,  the  sale 


tol,  92] 


GENERAL  INDEX, 


10831 


Contract  Act— contd, 

transfer  or  sub-lease  of  the  right  is  forbidden,  the 
mere  fact  that  the  licensee  enters  into  partnership 
with  others  in  respect  of  profits  or  losses  of  the  busi- 
ness for  the  carrying  on  of  which  he  had  obtained  the 
license  does  not  necessarily  involve  a  transfer  of  the 
license  right  and  is  not  illegal  or  forbidden  by  law. 
Under  the  Law  of  Mysore  such  a  partnership  as  the 
above  is  not  unlawful 

When  the  terms  of  a  contract  are  reduced  to  wilting 
and  the  question  is  whether  the  contract  is  illegal  by 
reason  of  its  seeking  to  do  what  is  forbidden  by  law 
and  the  contention  is  that  the  agreement  operates  as  a 
tiansfer,  such  a  transfer  should  not  merely  be  pre- 
sumed b\it  must  appear  m  the  document  if  not  in 
terms  at  least  as  necessanly  involved  M  KHODAY 
GANGADHAR  SAH  v.  SWAMINADHA  MUDALIAR,  22  L  W. 
679,  A,  J  R.  1926  Mad,  218  112 

8.  2  3 —Agreement  not  to  bid  at  excise  auction, 

legality  of—  Public  policy — Money  paid  under  agree- 
ment not  to  bid,  whether  can  be  recovered— Fraud, 
plea  of — Burden  of  proof 

An  agreement  not  to  bid  at  an  excise  auction  is  not 
per  se  illegal  or  opposed  to  public  policy 

Where  a  plaintiff  alleging  that  he  had  paid  certain 
money  to  the  defendant  on  the  latter  agreeing  not  to 
bid  against  the  plaintiff  at  an  excise  auction  sues  to 
recovei  the  amount  paid  by  him  and  the  defendant 
pleads  that  the  agreement  between  him  and  the 
plaintiff  was  illegal  under  s  23  of  the  Contract  Act, 
the  burden  lies  on  him  to  show  that  it  was  intended 
by  the  agreement  to  effect  the  purpose  of  the  agree- 
ment by  illegal  means  It  is  not  sufficient  for  him  to 
have  used  indeiinite  expressions  when  demanding  the 
money  from  the  plaintiff  and  then  to  ask  the  Court 
to  presume  that  he  had  intended  to  act  fraudulently 
or  otherwise  m  contravention  of  any  law  If  ho  avoids 
pleading  his  own  fraud  hfe  cannot  ask  the  Court  to 
presume  that  he  had  fraudulent  intentions  of  an 
unspecified  or  an  indefinite  kind  without  his  advanc- 
ing evidence  that  such  was  the  case  To  refuse  relief 
to  the  plamtil?  under  such  circumstances  would  be  to 
encouiage  fraud  and  trickery  of  a  different  kind  by 
a  person  who  had  done  nothing  illegal  except  possibly 
to  defraud  the  plaintiff  with  whom  he  entered  into 
an  agieement  of  an  indefinite  kind,  with  no  intention 
of  doing  anything  except  to  fraudulently  keep  the 
money  m  any  event  R  MAUNG  SKIN  HTIN  v  CHKE 
PAN  NGAW,  3  R  275,  AIR  H)25  Rang  241  270 
8.  23 — Company  prohibited  by  law — Dissolu- 
tion, suit  for,  whether  maintainable— Void  contract 
A  Company  whose  formation  is  piohibited  without 
registration  under  the  Companies  Art,  cannot,  if  un- 
registered, be  lecogmsed  by  the  Couita  as  having  any 
legal  existence,  and  no  suit  is  maintainable  for  its 
dissolution  at  the  instance  of  any  partner  entering 
into  the  same  with  his  eyes  open  N  GOPILAL  BHA- 
WANIRAMV  PANDURANG,A  I  R  1926  Nag  241  640 

8.     23 — Pro-note  for    withdrawal     of  non- 

compoundable  case,  suit  on,    whether  maintainable — 
Public  policy 

It  is  against  public  policy  to  receive  money  or  a 
promise  to  receive  money  in  consideration  of  an  agree- 
ment to  stifle  a  criminal  prosecution  for  a  non-com- 
poundable  offence 

Plaintiff  was  prosecuting  one  K  for  a  non-compound- 
able  offence,  and  in  consideration  of  the  defend- 
ant executing  a  pro-note  in  his  favour  for  a  certain 
sum  of  money  withdrew  the  complaint  with  the  per- 
mission of  the  Court  In  a  suit  to  recover  the  amount 
of  the  pro-note; 


Contract  Act-contd, 

Held,  that  the  suit  was  not  maintainable  inasmuch 
as  the  consideration  for  the  pro-note  being  opposed  to 
public  policy  was  illegal.  A  MUHAMMAD  ISMAIL  v. 
VAHiDUDDiN,24  A  L.J.311,A  I  R  1926  AIL  270  503 

SS.    3O,  65 — Chit  fund  transaction,  whether 

lottery— Suit  by  non- prize-winner  against  stakeholder 
for  return  of  subscription,  whether  maintainable — 
Contract,  whether  void  from  inception 
A  chit  fund  consisted  of  500  subscribers,  eaoh  sub- 
scribing Rs  2  per  mensem  At  the  end  of  each 
month  a  chit  was  drawn  by  lot  and  the  winner  was 
paid  Rs  100  Thereafter  his  connection  with  the  chit 
fund  ceased  altogether  and  he  was  not  under  any 
obligation  to  continue  his  subscriptions  According  to 
the  rules  of  the  fund,  the  drawing  would  thus  go  on 
for  50  months  when  the  chit  fund  would  be  wound  up, 
the  stakeholder  paying  back  to  the  remaining  sub- 
scribers the  total  amount  subscribed  by  each  of  them. 
In  a  suit  by  a  non-prize-winner  after  subscribing  for 
48  instalments  for  return  of  amount  of  subscription 
with  interest 

Held,  that  the  chit  fund  transaction  was  a  lottery 
and  the  plaintiff  was  not  emtitlod  to  recover  the 
amount  either  by  virtue  of  tha  contract  or  by  reason 
of  any  obligation  under  s  65  of  the  Contract  Act  as  if 
the  contraot  had  become  void  M  VEERANAN  AMBALAM 
v  AYYACHI  AMBALAM,  22  L  W  772,  (1925)  M  W  N 
857,  49  M  L  J  791,  AIR  1926  Mad  168  968 

— SS.  59,  60 — Appropriation    of  payments  to 

particular    debts --Creditor    and     debtor,    respective 
rights  of 

Primarily  it  is  the  direction  of  the  debtor  either  ex- 
press or  implied  which  determines  to  which  particular 
debt  a  payment  is  to  be  appropriated  But  the 
intimation  by  the  debtor  must  synchronise  with  the 
payment  Where,  however,  a  debtor  does  not  avail  of 
this  privilege,  the  creditor  has  plenaiy  discretion  to 
apply  any  payment  at  any  time,  even  up  to  the  time 
of  trial,  to  any  debt  he  choqses  L  RELU  MAL  v 
AHMAD,  7  L  17,  A  I,  R  1926  Lah  183  947 

3.  65.    See  CONTRACT  ACT,  1872,  s  30       968 

• — 8.  65 — Consideration,    recovery    of,  suit  for 

—  Limitation,  operation  of 

The  time  at  which  an  agreement  is  discovered  to 
be  void,  so  that  the  cause  of  action  to  recover  the 
consideration  may  arise  under  s  65  of  the  Contract 
Act,  m  the  absence  of  spacial  circumstances,  is  the 
date  of  the  agreement  N  GOPILAL  BUAWANIRAM  v 
PANDURANG,  AIR  1926  Nag  241  640 
8.  7 'O  — Contribution — Common  channel,  re- 
pair of —Party  benefited,  liability  of,  to  contribute 
A  common  channel  which  irrigated  the  lands  of  the 
plaintiff  and  the  defendant  was  repaired  by  the  plaint- 
iff after  giving  notice  to  the  defendant  and  the  latter 
was  benelited  by  the  repairs,  it  waa  also  found  that 
the  plaintiff  did  not  intend  to  bear  all  the  expenses  of 
the  repairs  himself 

Held,  that  the  plaintiff  was,  under  s  70  of  the 
Contiact  Act,  entitled  to  obtain  contribution  from  the 
defendant  in  respect  of  the  cost  of  repairs  M  MKENA- 

KSHI8UNDARA  NACHIAR  V    VfiERAPPA    CHKTTIAR,  (1926)    M 

W  N  4  838 

3^  73— Breach  of  contract— Damages,  when 

can  be  recovered—  Measure  of  damages — Surrounding 
circumstances,  relevancy  of 

Section  73  of  the  Contract  Act  does  not  necessarily 
exclude  the  application  of  the  rule  laid  down  in 
Bain  v  Fothergillt  (1874)  7  H.  L  158.  43  L.  J.  Ex.  243- 
31  L  T,  387;  23  W  R  201  that  normally  apart  from  de- 
liberate carelessness  or  known  want  of  title  by  * 


1064 


INDIAN  OASES, 


[192$ 


Contract  Act— con td, 

vendor,  a  purchaser  cannot  recover  damages  for  loss 
of  his  bargain  under  a  contract  for  the  sale  of  real 
estate,  apart  from  costs  of  investigating  the  title. 
The  question  must  be  answered  on  the  facts  and 
circumstances  of  each  case  whether  that  rule  would 
apply  to  that  particular  case. 

In  an  ordinary  contract  for  the  purchase  and  sale  of 
land  in  which  the  vendor  contracts  to  make  out  a 
marketable  title,  the  usual  result  would  be,  if  without 
any  default  on  the  part  of  the  vendor  he  was  unable 
to  make  out  a  marketable  title,  that  the  bargain  would 
be  off  and  the  vendor  would  have  to  pay  the  pur- 
chaser's costs  of  the  agreement  and  of  the  inspection 
of  the  title-deeds.  But  if  the  cenduct  of  the  vendor 
in  committing  the  breach  shows  that  he  has  been 
guilty  of  any  default  of  a  wilful  nature,  then  the 
damages  would  be  calculated  on  a  higher  scale,  and 
the  measure  of  damages  would  be  the  difference 
between  the  contract  price  and  the  market  price  of  the 
property  at  the  date  of  the  breach 

Per  Fawcett,  J,—  It  is  not  the  profit  which  would  have 
arisen  to  the  plaintiffs,  which  is  to  be  taken  into 
account,  but  the  market  price  of  the  property  on  the 
date  of  the  breach 

The  discretion  which  a  Court  has  under  s.  73,  Con- 
tract Act,  cannot  properly  be  restricted  by  any  Judge- 
made  rule  that  every  case  of  a  particular  kind  must 
be  dealt  with  in  a  particular  manner. 

The  circumstances  of  each  case  have  to  be  considered 
in.  deciding  what  is  reasonable  and  proper  com- 
pensation for  the  damage,  caused  by  a  breach  of 
contract  under  s.  73  of  the  Contract  Act  and  the 
Court  is  not  bound  m  every  case  to  award  damages 
on  the  basis  of  a  difference  between  the  price  at  the 
date  of  thf  contract  and  the  market  price  at  the  date 
of  the  breach, 

In  a  case  where  the  plaintiff  has  no  very  outstanding 
circumstances  to  support  his  claim  to  damages  on  a 
higher  scale,  the  fact  of  the  contract  being  made  under 
conditions,  similar  to  those  obtaining  in  England  is  a 
factor  which  can  reasonably  bs  taken  into  account 
B  DHANRAJGIRJI  NARASI\'GGIRJI  v  TATA  (SONS  LID  ,  26 
Bom  L  R  858;  AIR  1924  Bom  47'*,  49  B  I  225 

3,    74  —  penalty,  when    arises — Ejectment 

suit — Compromise  decree  —  Stipulation  to  pay  en- 
hanced rent  after  expiry  of  term,  whrther  penal- 
Doctrine  of  penalty,  whether  applicable  to  stipula- 
tion contained  in  decree. 

A  penalty  under  s  74  of  the  Contract  Act  can 
only  follow  some  breach  of  contract  or  obligation. 
The  doctrine  of  penalties  is  not  applicable  to  stipu- 
lations contained  in  decrees.  Those  who,  with  their 
eyes  open,  have  made  alternative  engagements  and 
invited  alternative  orders  of  the  Court,  must,  if  they 
fail  to  perform  the  one,  perform  the  other,  however 
greatly  severe  its  terms  may  be. 

An  ejectment  suit  was  compiomised  and  the  com- 
promise decree  provided  that  the  defendants  would 
be  entitled  to  occupy  the  premises  in  suit  for  a 
period  of  eleven  years  on  payment  of  a  yearly  rent 
of  Rs.  400  and  that  if  they  wanted  to  occupy  the 
premises  after  the  expiry  of  the  term,  without  taking 
a  fresh  settlement,  they  shall  pay  rent  at  Rs.  100  per 
month  ; 

Held,  that  the  intention  of  the  parties  was  that  if 
the  defendants  wanted  to  occupy  the  premises  after 
the  expiry  of  the  term,  they  could  either  take  a 
fresh  settlement  or  remain  in  occupation  without  a 
fresh  settlement  on  a  rent  of  Rs.  100  per  month  which 
the  parties  at  that  time  thought  would  be  a  fair  rent 


Contract  Act— eontd 

after  the  lapse  of  11  years  and  that,  therefore,  no 
question  of  any  penalty  arose.  Pat  JITBNDBA  NATH 
CHATTERJEE  v.  JASODA  SAHUN,  (1925)  Pat.  353;  A.  I.  R. 
1926  Pat.  122;  7  P.  L  T  299  617 
S.  125.  See  INDEMNITY  715 

8. 132 -Evidence  Act  (I  of  1872),  a.   9t~ 

Co-executants  of  negotiable  instrument—Par  ol  evi- 
dence to  prove  that  one  of  them  was  surety  t  admw- 
sibihty  of 

Where  two  persons  join  together  in  executing  a 
bill  or  a  promissory  note  making  themselves  jointly 
and  severally  liable  therefoi,  there  is  nothing  to 
prevent  one  of  them  from  proving  by  parol  evidence 
that  he  is  the  surety  and  the  other  the  principal 
debtor,  provided  that  he  does  not  thereby  intend  to 
affect  the  right  of  the  creditor  to  demand  immediate 
payment  from  either  or  both  of  the  co-obligors  or  joint 
promisors.  8  MOOLJI  MURAKJI  SUNDERJI  v  PINTO  667 

3.171 — Factor,  meaning  of —Factor's  lien 

The  word  "factor"  in  India  as  in  filngland  means  an 
agent  entrusted  with  the  possession  of  goods  for  the 
purpose  of  selling  them  for  hia  principal 

A  factor  is  entitled  under  e  171  of  the  Contract 
Act  to  retain  as  security  for  a  general  balance  of 
account,  any  goods  bailed  to  him  O  PARAKH  v  EM- 
PEROR, 3  0.  W.  N.  160,  A.  I.  B.  1926  Oudh  202,  27  Cr. 
L.J.  328  744 

—8.  178— Shares  handed  over  for  purpose    of 

raising  money — Pledge  of  shares — Misrepresentation, 
shares  obtained  by— Pledgee,  rights  of — Fraud,  mean- 
ing of —"Goods,"  whether  includes  share  certificates, 
A  person  who  without  enquiry  takes  from  another 
an  instrument  signed  in  blank  bya  third  partyand  fills 
up  the  blanks   cannot,  even  in    a  case  of  a  negotiable 
instrument,  claim  the  benefit  of  being  a  purchaser  for 
value  without  notice  so  as  to  acquire    a  greater  right 
than  the  person  from  whom  he  himself   received  the 
instrument 

The  obtaining  of  goods  or  documents  by  fraud  of 
which  the  proviso  to  s  178  of  the  Contract  Act  speaks 
must  mean  obtaining  possession  by  such  a  trick  or 
fraud  as  excludes  real  consent  and,  therefore,  cannot  be 
the  foundation  of  any  other  contract 

Defendant  No  1  who  was  a  partner  in  a  firm  which 
had  b^en  dissolved  represented  to  defendant  No.  2 
that  his  liabilities  in  respect  of  his  partnership  in  the 
dissolved  firm  did  not  exceed  a  certain  sum  and  in- 
duced defendant  No  2  to  enter  into  a  partnership 
with  him  for  the  purpose  of  starting  a  new  business. 
Defendant  No  2  handed  over  shares  in  certain  com- 
panies to  defendant  No  1,  together  with  transfer 
forms  with  blank  transfers  duly  signed  by  him,  and 
authorized  the  first  defendant  to  borrow  money  on  the 
shares  for  the  purpose  of  the  new  business  to  be 
started  by  them  The  first  defendant  pledged  the 
shares  with  the  plaintiff  and  utilized  the  proceeds  to 
discharge  his  liabilities  as  a  partner  in  the  dissolved 
firm  In  a  suit  by  the  plaintiff  to  enforce  the  pledge 
of  the  shares 

Held,(l}  that  the  first  defendant  having  been  author- 
ized by  the  second  defendant  to  pledge  the  share* 
it  could  not  be  said  that  he  had  obtained  possession 
of  the  shares  by  means  of  an  offence  or  fraud ; 

(2)  that  at  the  most  it  could  only  be  said  that  the 
first  defendant  induced  the  second  defendant  to 
negotiate  with  him  with  regard  to  starting  a  new 
business  by  misrepresenting  the  amount  of  his  liabili- 
ties  in  his  old  business  and  that  such  a  misrepre- 
sentation would  enable  the  second  defendant  to  avoid 


Vol.  92] 


GENERAL 


1085 


Contract  Act— concld. 


Co-sharer-  concld 


the  agreement  to  start  a  new  business  and  to  iccover 
the  shares  entrusted  to  the  first  defendant  for  the 
purpose  of  raising  money  for  that  business  , 

(3)  that  the  nusiepresentation,  however,  had  not  the 
effect  of  rendering  the  pledge  of  the  shares  with  the 
plaintiff  before  the  rescission  of  the  contract  invalid 
and  that  the  plaintiff  was,  therefore,  entitled  to  enforce 
his  pledge 

Per  Coyajee,  J  —The  term  "goods"  used  in  s  178 
of  the  Contract  Act  is  wide  enough  to  include  share 
certificates  B  JAMSHEDJI  NAOROJI  GAHADIA  v  MAGAN- 
LAL  BANKEY  LAL&  Co,  27  Bom  L  R  514,  AIR 
1925  Bom  314  9 

• 8.    230 — Principal  and   agent — Auctioneer, 

whether  can  maintain  suit  for  value  of  goods  auc- 
tioned 

An  auctioneer  is  not  a  bare  agent,  but  an  agent  who 
has  an  interest  m  the  goods  which  are  enti  usted  to 
him  for  sale  and  as  such  can  maintain  a  suit  for  the 
recovery  of  the  value  of  the  goods  auctioned  by  him 

5  KHARAS,  R  P.  v    BIUWAXJI  NARSI,  AIR.  1926  Smd 

6  394 

8.  231.    See  CARRIAGE  OF  GOODS  1O07 

S.  251 — Partnership— Partner,  whether    can 

make  reference—  Receiver,  appointment  of,  effect  of 
One  partner  in  a  firm  has  no  authority  to  enter  into 
an  agreement  to  refer  a  dispute,  to  which  the  iirm  is 
a  paity,  to  arbitiation 

Wheie  a  Receiver  has  been  appointed  to  wind  up  the 
affairs  of  a  partnership,  to  collect  all  outstanding,  to 
pay  debts  and  to  distribute  the  BUI  plus,  a  partner  of 
the  firm  has  no  authority  to  refer  to  arbitration  a 
question  relating  to  the  liability  of  the  film  to  pay  a 
sum  of  money  to  a  third  person  L  RADHA  KISHE\ 
OHUNI  LAL  v  AHSA  MAL-!SHAR  DAS,  7  L  L  J  603,  A 
I  R  1926  Lah  91  705 

ss.  2G3,  264— Limitation  Act  (IX  of  1908), 

s  20— Partnership,  dissolution  of— Authority  of  one 
partner  to  pay  debts — Notice  of  dissolution  to 
strangers,  want  of,  effect  of 

So  long  as  a  partnership  continues,  it  is  a  pait  of 
the  ordinary  course  of  partnership  business  to  pay 
partnership  debts,  and,  therefore,  it  would  ordinarily 
be  sufficient  to  prove  that  a  debt  paid  was  a  partner- 
ship debt  and  that  the  person  who  paid  the  inteiest 
on  it  or  part  of  the  principal  was  a  partner,  m  order 
to  give  an  extended  period  of  limitation  under  s.  20 
of  the  Limitation  Act 

But  even  after  a  partnership  has  become  dissolved, 
eo  far  as  strangers  are  concerned  a  partnership  dis- 
solved is  a  partnership  m  being,  unless  and  until 
they  receive  notice  of  dissolution,  and,  m  the  case  of 
old  customers  with  the  partnership,  express  notice  of 
the  same  is  necessary  and  in  the  absence  of  it  an 
acknowledgment  by  one  paitner  is  binding  on  the 
other  partners.  M  MAHADEVA  IYER  v  RAMKRISHNA 
KBDDIAR,  23  L,  W  199,  50  M.  L.  J.  67,  A.  I.  R.  1926 
Mad.  114,  (1925)  M  W  N.  707  653 

Co-Sharer— Exclusive  possession— Erection  of  build- 
ing— -Injunction,  suit  for—Demolition  of  building- 
Special  injury. 

A  co-sharer  whose  rights  have  been  invaded  by  the 
exclusive  possession  of  another  co-sharer  can  maintain 
a  auit  without  proving  material  and  substantial  injury. 
A  co-sharer  who  knowing  perfectly  that  he  has 
no  right  to  take  exclusive  possession  of  any  portion  of 
the  common  land,  commences  and  completes  a  build- 
ing thereon  with  his  eyes  open,  is  not  entitled  to 
any  consideration  at  the  hands  of  the  Court,  and  the 
Jitter  should  grant  a  mandatory  injunction  against 


him  for  demolition  of  the  building,     L  ATTAR  SINGH 
v  KIRPA  SINGH,  A  I  R   1926  Lah    175  297 

Nature    of  right  in  joint   property — Sale,  of 

definite  pot  tion  by  one—Rights  of  others 
So  long  as  paitition  has  not  taken  place,  each  co- 
sharer  has  a  shaie  in  every  fragment  and  portion  of 
the  joint  holding  and  if  his  lights  are  infringed  by 
his  co-sharer  alienating  a  definite  portion  of  the  joint 
holding,  he  is  entitled  to  a  decree  for  a  declaration 
that  he  is  joint  owner  of  the  portion  alienated  L 
THAKAR  SINGH  v  INDAR  SINGH  721 

Partition,  suit  for— Possession,  allegation  of , 

disproof  of — Presumption 

Where  a  plaintiff  m  a  suit  for  possession  by  partition 
of  alleged  joint  property  makes  a  positive  case  that  he 
is  in  possession  of  thepioperty,  and  that  case  fails  and 
the  Court  hnds  that  the  plamtift  has  had  nothing  to 
do  with  the  property  in  dispute  for  over  twelve  years, 
there  is  no  room  for  the  application  of  the  presump- 
tion that  the  defendant  is  in  possession  of  the  pro- 
perty on  behalf  of  the  plaintiff  and  the  plaintiff's  suit 
must  fail  C  SITES  WAR  Ro\  i  TKPUA  BARMAN,  AIR 
1926  Cal  589  9O8 

—  Realization  of  rent  by  one  co-shaier,  effect  of 

See  AD\  ERSE  POSSESSION  99 

Rent    due  fiom    one  co-shaier  to    another — 

Set-off,    arrangement    an    to — Suit  to    recover    rent, 
maintainability  of 

An  arrangement  between  co-sharers  wheieunder 
rent  due  to  one  of  them  fiom  the  others  is  set-off 
against  the  rent  due  from  him  to  the  others,  the 
balance  alone  being  payable  in  cash,  does  not  prevent 
the  rent  from  falling  due  and  does  not  operate  as  a 
bar  to  the  maintainability  of  a  suit  by  one  co-shaier 
to  lecover  rent  due  to  him  from  the  other  co* sharers 
It  is,  however,  open  to  the  defendants  in  such  a  suit 
to  show  that  the  rent  has  already  been  paid  off  by 
set-off  C  ABDUL  WAHBD  KHAN  v  TAMIJANNESSA 
BIBI,  A  L  R  1926  Cal  679  905 

Court  Fees  Act    (VII  Of  1870),  principle  of     See 
COURT  FEBS  ACT,  1870,  SCH  I,  ART  1  624 

S3.  5, 12 — Court-fee  pay  able  on  memorandum 

of  appeal— Taxing  Officer,  order  of —High  Coutt, 
interference  by — Refund  of  excess  fee  levied 
The  High  Oourt  has  no  power  or  jurisdiction  to 
interfere  with  an  order  passed  by  the  Taxing  Officer 
settling  the  amount  of  Court-fee  payable  on  a  memo- 
randum of  appeal,  which  order  is  final  and  against 
which  there  is  no  power  of  appeal,  review  or  revision, 
Even  if  the  Court  is  of  opinion  that  the  Couit-fee 
levied  is  m  excess  of  that  payable  under  the  law,  it 
has  no  power  to  order  a  refund  of  the  excess  amount 
levied  Pat  HITENDRA  SINGH  v  MAHARAJADHIRAJ  CP 
DARBHANCU,  (1925)  Pat  359,  A.  I.  R  1926  Pat.  147,  7  P 
L.  T.  392  626 

8.  7  (IV)  (C)— Suits  Valuation  Act  (VII  of 

1887),  s  8— Civil  Procedure  Code  (Act  V  of  1VOS), 
0.  VII,  r  I—Suit  for  injunction  and  appointment  of 
Receiver — Valuation  for  purposes  of  jurisdiction  and 
Court-fee — Court-fee  payable 

Order  VII,  r.  1,  C  P  CM  requires  that  a  plaint  shall 
contain  a  statement  of  the  value  of  the  subject-matter 
of  tht  suit  for  the  purposes  of  jurisdiction  and  of 
Court-fees  It  is  not  contemplated  that  the  subject- 
matter  shall  be  given  two  values,  one  purely  arbi- 
trary and  fanciful  for  the  purposes  of  jurisdiction 
and  one  m  strict  conformity  to  the  real  value  for  the 
purposes  of  Court-fees. 

In  either  case  the  valuation  should  conform  to 
reality.  Therefore  when  a  plaint  contains  a  valuation 


INDIAN  OASES. 


[1928 


Court  Fees  Act~contd. 

ior  purposes  of  jurisdiction  it  is  a  natural  assumption 
that  the  same  valuation  would  apply,  if  it  were  neces- 
sary to  have  a  valuation  for  an  ad  valorem  Court-fee. 
A  suit  for  an  injunction  and  the  appointment  of  a 
Receiver  falls  within  the  purview  of  s  7  (it)  (c)  of 
the  Court  Fees  Act,  and  under  s  8  of  the  Suits 
v  aluation  Act,  the  value  of  siich  a  suit  for  purposes 
of  Court-fees  and  jurisdiction  must  be  the  same 
Where  in  such  a  suit  the  plaint  does  not  state 
the  valuation  put  by  the  plaintiff  upon  the  relief 
sought,  and  there  is  no  valuation  for  the  purpose  of 
computing  ad  valorem  Court-fees,  the  value  for  the 
purposes  of  jurisdiction  must  also  be  taken  to  be  the 
value  for  purposes  of  Court-fees  M  POTHI  ANNA- 
PURNAYY  v.  POTHI  NAGARATNAMMA,  A.  I.  R  1926  Mad.  591 

73O 
• 8.7(lx).    See  COURT  FEES  ACT,  1870,  Scn.l, 

ART.  1  624 

• 3.  8,  Sch,  II,  Art  17  (IV)—  Appeal  from  award 

under   Land  Acquisition  Act — Court-fee  payable 

An  appeal  from  an  award  under  the  Land  Acquisi- 
tion Act  is  governed  for  purposes  of  Court-fee  by  s  8 
and  not  by  Art  17  (iv)  of  fcJch  IE  to  the  Court  Fees  Act, 
as  the  former,  being  a  special  provision  relating  to  the 
awards  of  compensation  under  the  Land  Acquisition 
Act  overrides  the  general  provisions  of  the  latter 

Where  no  compensation  has  been  allowed  by  an 
award  under  the  Land  Acquisition  Act,  Court-fee 
payable  on  the  memorandum  of  appeal  is  the  ad 
valorem  Court-fee  on  the  amount  claimed  L  PURAN 
CHAND  v.  EMPEROR  991 
Sch,  I)  Art.  1,  8,  7  (Ix) — Suit  for  redemption 

of  kanom — Decree    for  possession    on    payment  of 

mortgage  amount  and  value  of  improvements — Appeal 

re  value  of  improvements — Court-fee  payable. 

The  principle  of  the  Court  Fees  Act  is  that  the 
plaintift  should  pay  a  Court-fee  in  proportion  to  the 
value  of  the  relief  he  seeks  That  value  if  possible, 
is  determined  in  money  but  where  there  is  no  money 
value  or  the  money  value  is  uncertain,  the  Act  pro- 
vides rules  according  to  which  the  valuation  shall  be 
made, 

The  value  of  an  appeal  is  not  in  all  cases  the  value 
of  the  suit  as  originally  filed,  but  may  be  the  value 
of  the  relief  granted  by  the  decree  which  the  appellant 
wishes  to  get  rid  of. 

Where  in  a  suit  for  redemption  of  a  kanom,  a 
decree  for  possession  was  passed  on  payment  of  the 
amount  of  mortgage  and  the  value  of  improvements 
and  an  appeal  was  filed  which  related  only  to  the 
value  of  improvements  payable* 

Held,  that  s.  7,  (ixj  of  the  Court  Fees  Act  was 
inapplicable  and  that  Court-fee  was  payable  on  the 
memorandum  of  appeal  not  on  the  mortgage  amount 
but  ad  valorem  on  the  amount  in  dispute  in  appeal 
under  Art,  1  of  Sen.  I  to  the  Court  Fees  Act.  M 

TlRUVANGALATIi  NfiLLYOTON     PAIDAL    NAYAR,    In    re,    22 

L.  W.  691;  (1926)  M.  W.N.  169,  A.  I.  R.  1926  Mad.  225 

624 

*— ; Sch.  If  Art,  12 — Succession  Certificate— Pro- 
vident fund,  whether  exempt  from  Court-fees. 
Money  standing  to  the  credit  of  a  deceased  person 
in  a  Railway  Provident  Fund  passes  to  his  nominee 
and  does  not  form  what  can  properly  be  called  an 
asset  of  the   estate  of  the  deceased.    It  ia,  therefore, 
exempt  from  the  Court-fees  payable  for  a  Succession 
Certificate  under  Art.  12,  Sch.  I,  of  the  Court  Fees  Act. 
N  DiGAMDlB,  Jure;  A.  L  B.  1M6  Nag.  306  525 

8fch.ll,  Art  11,  8.  35— BI/NW    and  Orwa 

Government  Notification  No,  t&76~Gwil 


Court  Fees  Act— concld. 


Code  (Act  V  of  1908),  ss.  tf>  IM—Restitution,  order 
relating  to— Appeal— Court-fee  payable 
An  order  under  s  144  of  the  C.  P.   C.  comes  within 
the  purview    of  cl     (1)  of  s.  47  of  the  Code  and  a 
memorandum  of  appeal  against  such  an  order  must, 
therefore,  in  accordance  with  the  direction  contained  in 
the   Notification   No.   2576-L-A -25  of  the  Bihar  and 
Orissa  Government  dated  the  5th  December  1921,  be 
charged  with  the  fee  provided  for  in  Art.  11  of  Sch.  II 
to  the  Court  Fees  Act     Pat    SITAL    PRASAD  SINGH  v. 
JAGDEO  SINGH,  4  Pat.  294,  A.  L  R.  1925  Pat  577,  7  P.  L. 
T.  415  474 
Criminal  procedure— Conspiracy,  charge  of— Proof. 
See  PENAL  CODE,  I860,  es  120  B,  420  41 9 
First  Information,    delay  in    making— "Con- 
flicting    statements    as  to  number       of   accused — 
Suspicion 

Where  a  complainant  has  made  conflicting  state- 
ments with  regard  to  the  number  of  accused  m  the 
First  Information  Report  and  his  complaint,  his  evi- 
dence with  regard  to  the  identification  of  the  accused 
peisons  should  be  looked  upon  with  suspicion  The 
tact  that  the  First  Infoimation  Report  was  made  after 
conaideiable  delay  and  that  there  is  no  satisfactory 
explanation  of  the  delay  would  add  to  the  suspicion. 
L  HASHMAT  HUSSAIN  v  EMPKEOR,  7  L.  L.  J.  06,  27  Cr.  L. 
J  22i>  209 

Jury  trial—  Admiss ibihty  of  evidence— Duty 

of  Judge. 

In  intioducing  evidence  in  a  tiial  by  Jury  the 
Judge  must  be  very  careful  m  order  to  avoid  mis- 
carriage o£  justice  C  KEEAMAT  MANDAL  v  EMPEROR, 
42C.L,  J  528,  27  Cr.  L  J.277,  A.  I.  R.  1926  Cal  147 

453 

Practice— Convict  ion,  whether  can  be  based  on 

interested  and  contradictory  evidence, 

It  is  not  safe  to  base  the  conviction  of  an  accused 
person  on  the  evidence  of  interested  witnesses  who 
were  not  mentioned  in  the  First  Information  Report  as 
eye-witnesses  of  the  occurrence  and  whose  evident  e  is 
contradicted  by  other  witnesses  produced  on  behalf  of 
the  prosecution.  L  PALI  v.  EMPEROR,  7  L  L,  J.  25G,  27 
Cr.L.  J.  223  175 
Witness,  conflicting  statement  of,  value  of, 

SeeCR.  P.  C,  1898,e  162  577 
Witnesses,  unreliable—Conviction,  whether 

j  ustified— Murder— Motive. 

In  this  country  and  among  Jats  murders  are  some- 
times committed  from  motives  of  pride  to  avenge 
comparatively  harmless  insults. 

The  mere  presence  of  motive,  however,  will  not 
justify  a  conviction  for  murder  when  the  testimony  of 
alleged  eye-witnesses  of  the  occurrence  cannot  be 
relied  upon.  L  POHLA  v  EMPEROR,  7  L.  L.  J.  442;  27 
Cr.L  J.  241  417 
Witnesses  summoned  at  late  stage  on  accused's 

responsibility — Failure  of  witnesses  to  appear,  effect 

of. 

Where  an  application  for  summoning  witnesses  has 
been  put  later,  and  the  summons  have  been  issued  on 
the  responsibility  of  the  accused  on  the  full  under- 
standing that  the  Court  will  not  grant  any  adjourn- 
ment if  the  witnesses  do  not  appear,  the  accused 
cannot  say  that  he  had  no  opportunity  of  producing 
his  evidence,  if  the  witnesses  do  not  turn  up.  A 
PUEAN  t>.  EMPBROB,  27  Cr,  L.  J.  383;  A,  I.  R.  1926  AIL 
398  895 

Criminal  Procedure  Code  (Act  V  of  1898), 

9.  35— Illwtration—Ptnal  Code  ( Act  XLV  of  1860)^ 


Vol.  921 


GENERAL  INDEX. 


1087 


Criminal  Procedure  Code— contd, 

88.  368, '87 6— -Abduction  with,  intent  to  commit    rape 

— Commission  of  rape— Sentence. 

If  a  person   abducts  a  woman  with  intent  to  rape 

her  and  does  rape  her,  he  cannot  be  awarded  separate 

sentences  under  ss   366  and  376,  Penal  Code,    L  IMAM 

ALI  v.  EMPEROR,  27  Or.  L  J,  338,  A.  L  R.  1926  Lah   212 

850 

S.  103.    SeeU.  P.  EXCISE  ACT,  1910        441 

88,107,  112—  Security  to  keep    the  peace- 
Initial  order — Substance  of  information  received  not 
recorded,  effect  of — Jurisdiction  of  Magistrate  to  take 
proceedings— Surety,  rejection  of,  ground   for — Time 
for  furnishing  security — Duty  of  Magistrate 
A  Magistrate  acting  under  s.  107,  Cr    P  G ,  must, 
under  s.  112  of  the  Code,  make  an  order  in  writing 
setting  forth,  inter  aZ?a,  the  substance  of  the  informa- 
tion received     A  failure  to  comply  with  thia  provision 
would  deprive    a  Magistrate  of   jurisdiction   to  take 
proceeding's  under  s  107. 

A  person  against  whom  an  order  is  passed  under 
s  107,  Or  P  0 ,  must  be  given  sufficient  time  to 
furnish  security 

As  long  as  the  security  offered  by  a  surety  is  ample, 
the  Court  is  bound  to  accept  the  same,  without  enquir- 
ing into  the  politics  of  the  person  standing  surety 
If  the  Magistrate  is  not  satisfied  with  the  sureties 
tendered,  he  should  reject  them  within  a  icasonable 
time,  so  as  to  give  the  accused  an  opportunity  of 
offering  fresh  sureties  R  MAUNG  TUN  U  v  EMPEROR, 
AIR.  1925  Rang  353;  4  Bur  L  J  172,  27  Cr  L  J. 
318  702 

SS.    109,    110—  Bond  under    both  sections, 

whether  void 

A  security  bond  given  in  pursuance  of  an  order 
binding  over  a  person  both  under  ss  109  and  110, 
Cr  P  C  ,  is  not  void  S  JBOMAL  v  EMPEROR,  27  Cr  L 
J.  326  742 
—  8. 1 1 0 — Security  for  good  behaviour — Pro- 
cedure— Inquiry  -Duty  of  Magistrate 
In  a  case  under  s  110,  Cr  P  C  ,  it  is  the  duty  of 
the  Magistrate  to  hold  an  independent  enquiry  and 
not  to  bind  over  an  accused  person  merely  because  he 
agrees  to  furnish  security  A  RAM  CHARAN  v  EMPEROR, 
24  A  L.  J,  317,  27  Cr  L*  J  370  882 

8. 123.  See  CR.P  C.,  1898, s.  514  889 

88.  133  to  143,  202— U  P    Village  Pan- 

chayat  Act  (VI  of  1920),  s  72— Power  to  make 
local  enquiry — Obstruction  case — Procedure 
A  Magistrate  is  competent  under  s  72  of  the 
U.  P.  Village  Panchayat  Act  to  make  a  local  en- 
quiry into  an  offence  or  charge  covered  by  s  202, 
Or  P  C.  But  in  a  case  where  the  question  to  be 
determined  is  whether  any  unlawful  obstruction  has 
or  has  not  been  made  over  a  public  pathway  or  other 
public  place,  he  should  follow  the  procedure  laid 
down  by  ss,  133  to  143,  Cr.  P  C.,  and  base  his  decision 
on  the  evidence  adduced  and  not  act  outside  such 
evidence  solely  on  the  report  of  the  panches  or  on 
their  local  investigation.  A  KADHORI  v.  EMPEROR,  L. 
R  6  A  216  Cr.,  24  A.  L.  J.  152,  27  Cr.  L.  J.  276,  A  I. 
1929  All.  193  452 

— 8.  145 — Dispute  concerning  vmmoveable  pro- 
perty— Arbitration^  reference  to,  validity  of — Award 
concerning  future  possession,  whether  can  be  taken 
intu  consideration — Order    relating  to  property  not 
referred  to  in  preliminary  order,  validity  of. 
Under  s.  145  of  the  Or,  P.  C.  it  is  for  the  Court  to 
consider  which  of  the  parties  was  in  possession  of  the 
property  in  dispute  at  the  date  of  the  proceedings  or, 
in  some  oases,  within  two  months  previous  to  the  date 


Criminal  Procedure  Code— contd. 

of  the  proceedings  The  scheme  of  the  enquiry  is 
retrospective  and  not  prospective  There  might  be 
certain  circumstances  in  which  the  parties  may  agree 
that  the  Court  should  refer  the  matter  in  dispute  to 
arbitration  for  the  purpose  of  deciding  the  question 
as  to  who  was  in  actual  possession  at  the  time  of  the 
proceedings,  but  the  question  as  to  future  possession 
in  such  a  proceeding  cannot  be  referred  to  arbitra- 
tion The  law  does  not  allow  delegation  of  the 
jurisdiction  of  the  Court  under  s  145  to  arbitrators 
The  utmost  that  the  Code  allows  m  a  proceeding 
under  s  145  is  that  the  Court  may  direct  a  local 
enquiry  and  bring  the  enquiry  report  on  the  record 
as  evidence 

If,  however,  the  Magistrate  has  before  him  clear 
and  undeniable  evidence  that  there  is  no  further 
likelihood  of  the  breach  of  peace  and  that  the  parties 
have  come  to  a  settlement  of  their  dispute,  the  Magis- 
trate must  drop  the  proceedings  In  such  a  case  a 
compromise  between  the  parties  may  be  taken  by  the 
Magistrate  as  evidence  for  an  or}der  to  be  passed 
under  cl  (5)  of  s  145  of  the  Cr  P  CM  but  the  com- 
promise cannot  possibly  be  made  the  basis  of  an 
order  under  cl  6  of  the  section 

A  Magistrate  has  no  jurisdiction  to    pass    an  order 
under  s  145  of  the  Cr  P.    C    m  respect  of    pioperty 
which  was  not  referred  to  m  the  initiatory  proceedings 
Pat  UTTIM  SINGH  v  JODHAN  RAI,  3  Pat  2h8,  A  L  R  1924 
Pat  589,  27  Or   L  J  220;  7  P  L   T.  288  172 
8.145-  Possession  of  agent  or   servant,  whe- 
ther can  be  pleaded  against  principal  or  master 
The  possession    of  an    agent  or  a  servant    which  is 
permissive  cannot  give  a  party  to  a  proceeding  under 
s  145  a  locus  standi  against    his  principal    01  master. 
The  possession  that  can  be  pleaded  in  such  a  proceed- 
ing must  be  possession    based  on  a    claim  of  right  to 
rssession    N  BAJIRAOU.  DADIBAI,  27  Cr.  L.  J  212,  A 
R  1926  Nag  286  164 

8. 145,  scope  of—Dispute  regarding  offerings 

of  idol,  nature  of 

The  right  to  perform  the  puja  of  an  idol  or  to  have 
a  share  of  the  offerings  made  to  the  idol  cannot  be 
said  to  be  a  right  of  user  of  land,  as  provided  in 
s  145,  Cr.  P.  C  Therefore  a  dispute  relating  to  such 
a  right  does  not  come  within  that  section  C  SURENDRA 
NATH  BANBRJEE  v  SHASHI  BHUSHAN  SARKAR,  42  C  L  J, 
127,  52  C.  959,  27  Cr.  L.  J  239,  A.  I.  R.  1926  Cal  437 

223 

8,  160.    See  PENAL  CODE,  1860,  s,  173     460 

3.  162— Evidence  Act   (I  of  187$),  s    165— 

Statement  made  to  Police,  admissibihty  of — Judget 
power  of,  to  question  Investigating  Officer' 
The  power  conferred  upon  a  Judge  under  s  165  of 
the  Evidence  Act  cannot  be  exercised    for  the  purpose 
of  introducing  evidence  in  contravention  of  the  law. 
Under  s.  162,  Cr  P.  C  ,  statements  made  to  a  Police 
Officer  are  prohibited  from  being  used   for  any    pur- 
pose save  as  provided  in  the  section  ,  and  there  is  no 
provision  for   allowing  the    Judge  to  use  such  state* 
ments  for  confronting  the  witnesses  with  them.    To 
use  the  statements  for  this   purpose  is   to  contravene 
the  provisions   of    s.  162    of  the    Code.    C  KBRAMAT 
MAKDAL  v  EMPEROR,  42  C  L.  J.    528;  27  Cr.  L.  J  277* 
A.  I.  R  1926  Cal  147  453 

8.  162—Statement  made  to  Police   during 

investigation,  admissibility  of. 

Under  s.  162,  Cr.  P.  0 ,  no  statement  or  any  record 

thereof  whether  in  a  Police  diary  or  otherwise  or  any 

part  of  such  statement  made  by  any  person  to  a  Police 

Officer  w  the  course  of  an  myestigation  under  Oh 


1068 


OASES. 


[1926 


Criminal  Procedure  code— contd. 

XIV  of  the  Cr,  P.  C,,  is  admissible  as  evidence  except 
as  provided  in  the  second   para   of   that  section 

Evidence  of  incriminating  statements  made  by  an 
accused  person  while  in  the  custody  of  the  Poiice 
and  of  his  having  pointed  out  the  places  where  he 
had  taken  the  abducted  woman  during  the  course 
of  the  night  in  which  the  offence  of  abduction  is  alleg- 
ed to  have  been  committed  are  not  admissible  in  evi- 
dence. C  KERAMAT  MANDAL  i>.  EMPEROR,  42  0,  L.  J  524, 
27  Or  L.  J.  263;  A,  I  R.  1926  Cal,  320  439 

. 8,162 — Statement  made    to  Police,    whether 

admissible—Map  containing)  hearsay  matter,  whether 
admissible. 

In  the  course  of  a  Sessions  trial  the  Investigating 
Sub-Inspector  of  Police,  when  examined  as  a  prose- 
cution witness,  was  asked  whether  he  had  during  the 
investigation  examined  any  witnesses  on  behalf  of  the 
accused  He  stated  that  he  had  examined  certain 
witnesses  but  that  they  had  denied  their  presence  at 
the  occurrence.  One  of  the  persons  named  by  the  Sub- 
Inspector  had  been  summoned  by  the  accused  as  a 
defence  witness 

Heid,  that  the  statement  of  the  Sub-Inspector  was 
not  admissible  in  evidence  having  regard  to  the 
provisions  of  s,  162  of  the  Cr.  P  C 

A  person  who  makes  a  map  in  a  criminal  case  ought 
not  to  put  upon  it  anything  more  than  what  he  sees 
himself.  Particulars  derived  from  witnesses  examined 
on  the  spot  should  not  be  noted  on  the  body  of  the 
map  but  on  a  separate  sheet  of  paper  annexed  to  the 
map  as  an  index  thereto 

Such  particulars  are  hearsay  evidence  and  are  not 
admissible.  Where  the  map  is  prepared  by  a  Police 
Officer,  such  particulars  are  also  inadmissible  under 
s.  162  of  the  Or.  P.  C,  C  BHAOIRATHI  v  EMPKROR,  30 
0.  W  N.  142;  27  Or  L.  J.  222,  A.  I  R  1926  Cal  550 

174 

$8.  162,  172 — Statement  made  to  Police, 
whether  can  be  used  at  trial — Procedure 
A  statement  made  by  a  witness  during  Police  in- 
vestigation can  only  be  used  to  assist  the  accused  by 
showing  that  the  witness  who  in  Court  deposes  to 
certain  facts  has  in  his  statement  before  the  Police 
given  an  account  or  made  statements  which  are  con- 
tradictory to  the  testimony  which  he  gives  m  Oourt. 
The  statement  made  to  the  Police  cannot  be  used  at 
large  for  the  purpose  of  showing  that  the  statement 
does  not  corroborate  or  assist  the  story  as  put 
forward  in  the  First  Information  Report. 

The  limitations  under  which  such  a  statement  can 
be  used  are  very  strict.  The  statement  of  a  prosecu- 
tion witness  alone  can  be  used  at  the  trial  and  only  if 
it  has  been  reduced  to  writing  and  only  that  part  of 
it  can  be  used  which  is  in  contradiction  of  the  evi- 
denes  of  the  witness  given  in  Court  provided  it  is 
duly  proved  and  the  attention  of  the  witness  has  been 
drawn  to  it.  A  statement  made  to  the  Police  which 
does  not  contradict  the  testimony  of  the  witness  given 
in  Court  cannot  be  proved  in  any  circumstances,  and 
it  is  not  permissible  to  use  the  recorded  statement 
KB  a  whole  to  show  that  the  witness  did  not  say 
something  to  the  investigating  officer.  Pat  BADBI 
OHOUDHBY  v.  EMPEROB,  6  P.  L.  T.  620;  A.  I,  R.  1926  Pat. 
Jb;  27  Cr.  L.  J.  362  874 

— —  89.  162,  2BB— Statement  made  by  witness  to 
Poiice,    how  far  relevant — Statement  made  before 
Magistrate— Conflicting  statements—Evidence,  value 
of. 
£  itatememt  made  by  a  witness    to    the  Polico 


Criminal  Procedure  Code-contd. 

during  the  course  of  investigation  is  relevant  only 
for  the  purpose  of  contradicting  the  testimony  of  the 
witness  given  at  the  trial,  and  any  statement  pre- 
viously made  by  a  witness  before  a- Magistrate, 
including  a  statement  made  before  the  Committing 
Magistrate  which  has  not  been  transferred  to  the 
Sessions  record  under  the  provisions  of  s.  2t>8,  Cr, 
P.  0.,  is  relevant  only  for  the  purpose  of  contradicting 
or  corroborating  the  statement  made  by  the  witness  at 
the  trial 

No  reliance  can  be  placed  on  the  statement  of  a 
witness  made  at  the  trial  when  it  is  in  hopeless 
conflict  with  the  previous  statements  of  the  witness. 
L  HAM  KARAN  v  EMPEROB,  A.  L  R.  1925  Lah,  483;  3  L. 
C.  197,  7  L.  L.  J  371,  27  Or.  L.  J.  289  577 

— ~ 8. 1 88— Offence  committed  in  Native  S$dte  by 

tintish  Indian  subject — Trial  in    British    India — 
Certificate  of  Political  Agent,  necessity  of. 
Where  the  offence    of    kidnapping  has  been  com- 
mitted by  British  Indiau  subjects  m  a  Native  State,  it 
is  not   triable  in  British  India  without  a  certificate 
of  the  Political  Agent. 

The  defect  of  the  absence  of  a  certificate  is  not 
curable  by  the  sul sequent  production  of  the  certificate. 
LRAM  CHARANV  EMPEROR,  5  L.  416,  A,  I,  R.  1925  Lah. 
185,  27  Cr.  L  J.  218  170 

SS,  190  (C),  181,  557-  -Cognizance  taken  by 

Magistrate  on  his    own      knowledge  or  suspicion— 
Procedure— Failure  to  inform  accused  of  right  to  be 
tried  by  another  Magistrate—Illegality. 
Where  a  Magistrate  takes   cognizance   of    a   case 
otherwise  than    on  a  complaint  or  the  report  of  a 
Police  Officer,  he  must  be  deemed  to  have  taken  cog- 
nizance of  it  upon  his  own  knowledge  or  suspicion 
under  cl  (c)  of  s.  190,  Cr,  P.  0  ,  and  in  such  a  case  it 
is  his  duty  under  s.  191  of  the  Code  to  inform  the 
accused  that  he  can,  if  he  wishes,  be  tried  by  another 
Magistrate. 

Section  191,  Cr.  P.  C,,  is  imperative  and  a  failure  to 
comply  with  its  provisions  is  an  illegality  which 
vitiates  the  trial  and  not  a  mere  irregularity  which  is 
cured  by  s.  537  of  the  Code.  A  NARAIN  DAB  v.  EMPEROR, 
27  Cr.  L  J.325  741 

—  SS.  1 9 3,  339,532  —A p^rover,    prosecution 

of— Commitment   to  Sessions — Certificate   of  Public 
Prosecutor,  absence  of— Certificate  supplied  at    trial 
— Irregularity — Approver  failing  to  adhere  to  con- 
fession,  whether  proof  of  guilt. 
Accused  and  two  others  were  arrested  on  charges  of 
kidnapping  and    murder.    Accused  was    tendered  a 
pardon  which  he  accepted  and  he  was  examined  as  a 
witness  at  the   trial  of  the    other  two  accused.    On 
the  conclusion  of  that  trial  the   Magistrate   ordered 
the  Police   to  prosecute   the  accused  of   the   original 
off ence  and  the  accused  was  sent  before  a  Magistrate 
who  committed  him  to  the  Sessions  Court  on  charges 
of  kidnapping  and  murder.    On  the  case  coming  up 
for  trial,  the  Sessions  Judge  noticed  the  absence  of  the 
certificate  from   the  Public   Prosecutor  required  by 
s.  339  of  the  Cr.  P.  C.    The  trial  was  adjourned  and 
on  the  adjourned   date  a  certificate  was  filed  by  the 
Public  Prosecutor  and  was  accepted  by  the  Sessions 
Judge  and  the  trial  proceeded  and  the  accused  was 
eventually  convicted: 

Held,  that  the  proceedings  before  the  Magistrate 
who  made  the  commitment  were  merely  an  enquiry 
and  were  not  a  trial  .within  the  meaning  of  s.  339  of, 
the  Or.  P.  0,,  and  that  it  was  open  to  the  Sessions 
Judge  to  Accept  the  commitment  made  by  tine  Magig* 


Vol  921 


INDEX. 


Criminal  Procedure  Code-contd, 

trate  even  if  it  was  irregular  and  that  the  provisions 
of  5.  339  having  been  complied  with  before  the  trial 
commenced  the  trial  was  in  order, 

Where  an  approver  is  put  on  trial  for  the  original 
offence,  -the  mere  fact  that  he  has  not  adhered  to  his 
confession  should  not  lead  to  the  conclusion  that  he 
has  failed  to  comply  with  the  condition  on  which  the 
pardon  was  granted  to  him.  False  confessions,  wrong- 
fully extorted  01  induced  are  not  unknown  and  no 
man  must  be  led  to  adhere  to  a  false  confession  for 
fear  of  his  pardon  being  forfeited.  R  NGA  WA  GYI  v 
EMPEROR,  A  I  R  1925  Eang  219,  4  Bur  L  J.  23,  3 
R.  55,  27  Or.  L  J.254  430 

8, 195.    See  PENAL  CODE,  I860,  s.  193     746 

— -  8. 1 9  5  (O)  —Document  handed  up    to    Judge 

but  not  placed  on  file>  whether  "produced" — Pro- 
secution in  respect  of  document— Complaint,  whether 
necessary. 

A  decree-holder  filed  an  application  for  execution 
of  his  decree  In  answer  to  that  application  the  de- 
fendant produced  what  purported  to  be  a  receipt  in 
respect  of  a  certain  payment  which  lio  alleged  he  had 
made  to  the  decree-holder  and  handed  up  the  docu- 
ment to  the  Judge.  The  Judge  did  not  place  the 
document  on  the  file  on  the  ground  that  the  date  it 
bore  showed  that  it  was  out  of  time  for  the  purpose 
of  evidencing  any  compromise  or  payment  of  the 
decree,  and  returned  the  document  to  the  judgment- 
debtor  The  judgment-debtor  was  subsequently  pro- 
secuted for  an  offence  under  s  467  of  the  Penal  Code 
in  respect  of  the  document 

Held,  that  the  document  had  been  "produced"  in 
Court  within  the  meaning  of  s,  195  (c)  of  the  Cr  P  C 
and  that  a  complaint  by  the  Judge  was,  therefore, 
necessary  in  order  to  give  jurisdiction  to  the  Couit 
to  try  the  accused  for  an  offence  under  s  467  of  the 
Penal  Code  B  GULABCHANP  RUPJI  v.  EMPEROR,  27 
Bom  L.  R,  1039,  A.  I.  R,  1925  Bom.  467,  49  B  799,  27 
Cr.  L.  J  251  427 

8. 196A.    See  PENAL  CODE,  I860,  s.  141    145 

-8.197    (1)— U.  P  Excise  Act  (IV   of  1010), 

6  10  (2)  (f )  — Excise  Inspector ,  whether  removable 
from  office  by  Excise  Commissioner — Sanction  for 
prosecution^  whether  necessary. 

^An  Excise  Inspector  in  the  U.  P  is  removable  from 
his  office  by  the  Excise  Commissioner  and  the  sanc- 
tion of  the  Local  Government  is  not,  therefoie,  neces- 
sary under  s  197  (1),  Cr,  P  C  ,  for  the  prosecution  of 
such  Inspector  A  JALAL  UDDIK  v  EMPEROR,  24  A,  L. 
J  230,  27  Cr  L.  J  345,  AIR  1 926  All  271  857 

• — -  8.  202.  See  CR  P.  C  ,  1898,  SB  133  to  143 

452 

— • — ——88.  202,  439 — Refusal   to  issue    process — 

Revition— -Notice  to  accused^  whether  necessary 

It  is  not  obligatory  on  a  Superior  Court  to  give  any 

notice  to  a  person  against  whom  a  Magistrate  has 

refused  to  issue  process  under  s  202  of  the  Cr.  P    C , 

When  proceedings  are  being  taken  to  revise  that  order 

S  L.  A.  MORRISON  v.  H.  M.  OROWDBR,  27  Cr.  L.  J.  302 

590 
-  8. 203— Order  dismissing   complaint  not  aet 

complaint,  whether  bamd> 
An  order  of  dismissal  passed  on  a  complaint,  which 
has  not  been  set  aside,  is  no  bar  to  a  fresh  complaint 
upon  the  same  facts  to  another  Magistrate.    A  PURAN 
v.  EMPEROR,  27  Cr.  L,  J.  383;  A,  I.  K.  1926  All.  298 

895 

8,  206— Case,  triable  by  Court  of  Session  and 

Magistrate — Commitment,  when  justified. 

Where  *  Magistrate  is  inquiring  into  *  case  which 


Criminal  Procedure  Cotta— contd. 

is  triable  both  by  the  Court  of  Session  and  by  himself, 
he  has  a  discretion  to  commit  the  case  to  the  Court 
of  Session  or  to  try  it  himself 

If  the  maximum  sentence  provided  for  the  oflcnce 
is  within  the  powers  of  the  Magistrate,  a  commitment 
would  only  be  justifiable  on  very  special  grounds     P  at 
BENGAL  NAGPUR  RAILWAY  Co  iT  MAKBUL,  A  I  R    1925 
Pat    755,   (1926)  Pat    74,   27   Cr  L  J  313,  7  P,  L  T. 
313  697 
—  8.   209 — Inquiry    before   commitment — Dis- 
charge of  accused — Subsidiary  witnesses  not  examin- 
ed, effect  of. 

When  a  Committing  Magistrate  finds  that  the 
prosecution  eridence  is  totally  unwoithy  of  ciedit  it 
is  his  duty  to  discharge  the  accused 

Where  all  the  material  evidence  has  been  heard  and 
disbelieved,  an  order  of  discharge  passed  by  a  Com- 
mitting Magistrate  should  not  be  set  aside  merely 
because  there  were  one  or  two  subsidiary  witnesses 
who  might  have  been  called  but  whose  evidence  was 
not  recorded  A  RATAN  MANX  v  HANS  RAM,  27  Cr  L. 
J  274  450 

S3.  233,  234— PcnaZ  Code  (Act   XLV  of 

1860),  ss  408,  $77 A— Criminal  breach  of  trust— Fal- 
sification of  accounts --Separate  transactions 
Where  a  person  is  charged  with  committing  one 
act  of  criminal  bieach  of  tiust  and  also  with  falsify- 
ing accounts  with  a  view  to  conceal  that  paiticular 
defalcation,  the  two  may  be  said  to  form  part  of  the 
same  transaction  Where,  howevei,  an  accused  per- 
son is  charged  with  three  separate  acts  of  breach  of 
trust  and  three  separate  acts  of  falsification  of  accounts, 
one  in  respect  of  each  act  of  breach  of  trust,  the 
charges  cannot  be  tued  together  in  0210  trial,  aa 
there  are  tluee  separate  transactions  in  lespect  of 
each  act  of  breach  of  trust  coupled  with  the  corre- 
sponding falsifying  of  accounts,  and  the  two  offences 
are  not  offences  of  the  same  kind  B  EMPEROR  i\ 
,MANANTK  MEHTA,  27  Bom  L  R  1343,4913  892,  A. 
I  R  1926  Bom  110,  27  Cr  L  J  305  689 

s.    234      See  BENGAL  FERRIES   ACT,  1885, 

88.16,28  87V 

8.  235 — 'Same  transaction',  meaning  of.   See 

PENAL  CODE,  i860,  s  304-A  433 

9.  239     See  PENAL  CODE,  1860,  s  141      145 

8,   239 — Abduction  and  rape  on    different 

occasions— Joint  charge,  legality  of 
K  and  B    abducted  a    woman  and  committed    rape 
upon  her  at  a  place  called  D      The  woman   was  sub* 
aequently  taken  by  B  to  different  places  where  he  alone 
committed  rape  upon  her     On  these  facts 

Held,  (1)  that  a  joint  charge  under  s  366  of  the 
Penal  Code  against  both  K  and  B  was  justified; 

(2)  that    a  joint   charge    under  s  376  of    the  Penal 
Code  against  both  of  them    in  respect    of  the    occur-* 
rence  which  took  place  at  D  was  also  justified, 

(3)  that    a  joint   charge  against   both  of   them   of 
having  committed  rape  upon  the  woman  at  D  and  ja 
other  places  was  both  improper  and  embarrassing  ; 

(4)  that  if  it  was  intended  to   prosecute  B  with  re- 
gard to  the  offences   that  he  was   accused   of  having 
committed  elsewhere  there  should  be  separate  charges 
with  regard  to  those  offences     C  KERAMAT  MANDAL  v. 
EMPEROR,  420   L.  J.  524;  27  Cr.  L    J  213, -A,  I.  R. 
1926  Cal  320  439 
8,  250 — Frivolous  or  vexatious  complaint—* 

Compensation,  award  of. 

Under  the  Cr.  P.  C.  of  1898  aa  amended  in  1923, 
compensation  can  be  awarded  to  the  accused  when  thq 
complaint  ie  shown  to  be  false  and  either  frivolous  of 


1090 


OASES. 


[1928 


Criminal  Procedure  Code— contd. 

vexatious  and  it  is  not  necessary  to  show  that  it  is 
both  frivolous  and  vexatious.  A  KASHI  PRASAD  v. 
EMPEROR  THROUGH  HAM  SUNDER,  24  A.  L,  J.  101,  A.  I. 
R.  1926  All.  141,  27  Or.  L.  J.  300  588 

8.  250—Order  for  compensation—Appeal— 

Notice  to  accused,  whether  necessary . 
Though  not   legally  necessary,   it  is  desirable   in. 
general  that    an  aocused   person  should  have  notice 
of  an   intended   interference   with  an  order  of  com- 
pensation made  in  his  favour  under  s.  250  of  the  Cr. 
P.  0     8  Mouoo  v.  IBRAHIM,  27  Cr.  L.  J.  2*8;  A.  L  R. 
1926  Sind  143  424 
88.  257,  439  -Opportunity  given  to  accus- 
ed  to   cross-examine  prosecution  witness— Witness, 
re-call  of,  at  request  of  accused — Refusal  of  Magis- 
trate to  re-call  witness— -Discretion — Revision — High 
Court,  interference  by. 

While  a  Magistrate  is  bound  under  s.  257  (1)  of  the 
Cr.  P.  C.  to  issue  process  on  the  application  of  an 
accused  person  who  has  entered  on  his  defence  for 
compelling  the  attendance  of  a  witness  for  the  purpose 
of  examination  or  cross-examination  (save  in  certain 
stated  circumstances  which  the  Magistrate  must  find 
and  must  set  forth  in  writing),  the  proviso  to  that 
section  on  the  other  hand  deiinitely  prohibits  the 
Magifetrate  from  issuing  such  process,  if  the  accused 
lias  cross-examined  or  had  the  opportunity  of  cross- 
exam  ming  the  witness  after  the  charge  was  framed, 
unless  the  Magistrate  is  satisfied  that  such  attendance 
is  necessary  for  the  purposes  of  justice,  that  is  to  say, 
unless  he  is  convinced  of  the  existence  of  the  strongest 
possible  grounds  for  disregarding  the  prohibition. 
The  exception  to  the  prohibition  must  not  be  read  as 
swallowing  up  the  prohibition  or  the  whole  proviso  as 
enjoining  that  the  Magistrate  shall  issue  process  if  he 
is  not  satisfied  that  the  attendance  of  the  witness,  is 
unnecessary  for  the  ends  of  justice,  or  if  he  is  not 
latistied  that  (as  in  the  case  of  the  witnesses  not 
covered  by  the  proviso;  the  application  is  made  for 
the  purpose  of  vexation  or  delay  or  for  defeating  the 
ends  of  justice.  On  the  contrary  the  prohibition  may 
not>  §tye  disregarded  unless  in  the  opinion  of  the  Magis- 
tAtfeHhe  purposes  of  justice  not  merely  warrant  but 
demand  such  disregard  It  is  not  incumbent  upon 
the  Magistrate  to  record  in  wilting  his  reasons  for 
not  b6mg  satisfied  that  the  attendance  of  a  witness 
is  necessary  for  the  purposes  of  justice. 

If  a  good  case  is  made  out  that  the  Magistrate's 
refusal  to  summon  the  witness  was  outside  the  limits 
of  a  reasonable  discretion  the  High  Court  would  inter- 
fere with  the  exercise  of  such  discretion,  but  the  posi- 
tion must  be  most  clearly  established  that  the  Magis- 
trate's decision  was  unreasonable  and  improper  belore 
the  interference  of  the  High  Court  could  properly  be 
invoked  or  expected.  Pat  AJO  MIAN  v.  EMPEROR,  tt  P. 
L.  T.  626;  A.I  R.  1925  Pat.  696,  27  Cr.  L.  J.  353  865 

8.  288.    See  OR.  P.  C.,  1898,  s.  162       577 

— — —  8.  297— J ury  trial- -Charge—Omission  to 
nod  material  evidence—Omission  to  explain  accut- 
ed'*  right  to  bentjit  of  doubt— Trial,  whether  vitiat- 
ed. 

An  objection  that  in  delivering  his  charge  to  the 
Jury  the  Sessions  Judge  did  not  read  material  por- 
tions of  the  evidence  is  not  in  itself  eumcient  for  the 
reversal  of  the  verdict  of  the  Jury.  In  each  case  it 
must  be  a  question  whether  the  omission  to  read  the 
material  portion  of  the  evidence  was  such  as  to 
mislead  the  Jury  and  the  Court  of  Appeal  will  not 
interfere  if  it  has  not  prejudiced  the  accused, 

to  tell  the  Jury  that  the  accused  i« 


Criminal  Procedure  Code— ~ contd. 

entitled  to  the-  benefit  of  any  reasonable  doubt  is  not 
a  misdirection  vitiating  the  trial,  though  as  a  matter 
of  practice  it  is  as  well  to  always  end  the  charge  with 
these  words,  N  RAHIMBEO  v.  EJUPKROR,  7  N.  L.  J.  208; 
A.  I.  R.  1925  Nag  *  154,  27  Cr.  L.  J.  217  169 

S.    297 — Sessions   trial — Judges    charge  to 

Jury — Heads  of  charge,  contents  of — Several  accused 

— Duty  of  Judge— Defence   evidence,  part    of,  not 

placed  before   Jury,  effect   of— Earliest  vetsion  of 

prosecution  case,  importance  of. 

The  object  of  a  summing  up  under  s.  297,  Cr  P.  0  , 
is  to  enable  the  Judge  to  place  before  the  Jury  the 
facts  and  circumstances  of  the  case  both  for  and 
against  the  prosecution  so  as  to  help  them  in  arriving 
at  a  right  decision  upon  the  points  which  arise  for 
their  consideration. 

It  is  not  the  province  of  the  Judge  to  find  the  facts 
ior  the  Jury  and  then  make  an  attempt  to  persuade 
them  to  accept  his  conclusions  as  conect 

A  Judge's  charge  to  the  Jury  must  be  recorded  in 
such  a  way  as  would  enable  the  High  Court  sitting  as 
a  Court  of  Appeal  to  judge  whether  the  facts  and 
circumstances  of  the  case  had  been  properly  placed 
before  the  Jury  and  also  whether  the  law  had  been 
correctly  explained  to  them. 

A  mere  statement  in  the  heads  of  charge  that  the 
Judge  explained  certain  sections  of  the  Penal  Code  to 
the  Jury  does  not  satisfy  the  above  requirement. 

Where  several  accused  persons  are  being  jointly 
tried  and  the  case  as  against  all  of  them  does  not 
stand  on  the  same  footing  and  their  defences  are  also 
different,  the  Judge  must  ask  the  Jury  to  consider  the 
case  as  against  each  of  the  accused  individually.  The 
Judge's  failure  to  do  so  is  a  very  serious  omission  and 
is  likely  to  prejudice  the  accused  persons. 

A  verdict  obtained  from  the  Jury  without  placing 
before  them  an  important  piece  of  evidence  in  favour 
of  the  defence,  whatever  may  have  been  its  real  worth, 
cannot  be  sustained. 

The  earliest  version  of  an  occurrence  as  given  by  an 
informant  or  prosecutor  who  is  the  principal  witness 
to  the  occurrence,  and  on  whose  testimony  practically 
the  whole  case  depends*,  must  always  be  placed  before 
the  Jury  in  order  to  enable  them  to  judge  of  the 
truth  or  falsity  of  the  prosecution  case  C  KHIJIR- 
UDDIN  -v.  KMPBROR,  42  C.  L.  J.  504;  27  Cr.  L.  J.  266; 
A.  1.  R.  1926  Cal.  139;  53  C.  372  442 

S.  342— Examination  of  accused,  object  o/— 

Practice — Warning  to  accused,  desirability  of. 
Ihe  object  of  s.  342  (1),  Cr  P.  0.,  is  to  give  an 
opportunity  to  the  accused,  if  he  so  desires,  to  tender 
any  explanation  he  hkea  of  his  part  in  the  case  that 
is  presented  against  him.  It  is  extremely  desirable 
that  Magistrates  should  follow  the  practice  of  English 
Courts  of  warning  an  accused  person  when  they 
invite  his  explanation  under  s  342  of  the  Code  that 
he  is  not  obliged  to  say  anything  unless  he  desires  to 
do  so.  M  In  re  KANNAMMAL,  23  L.  W.  384;  27  Cr.  L. 
J.  311;  A.  1  R.  192o  Mad.  570  695 

— , if  342  (2),    See  PBHAL  CODE,  1860,  s.  499 

429 

• —  88.  342,  256,  537— Examination  of  ao 

cused— further    cross-examination  of    prosecution 

witnesses— Omission  to  examine  accuseds-Illegality* 

The  examination  of  a  witness  cannot   be  regarded 

as  completed  until  the  last   stage  at   which  the  law 

authorizes  its  continuance  has  been  passed,  that  is  to 

jay,  until  any  supplementary  cross-examination  which 

the  Court  may  allow  is  over,    @?  that  und«r  r  &* 


tfoLM] 


GENERAL  INDEX. 


1091 


Criminal  Procedure  Code— eontd, 

Cr  P.  CM  an  accused  person  has  a  right  to  be  examined 
and  to  state  his  case  after  the  further  cross-examina- 
tion of  prosecution  witnesses,  even  though  he  has 
already  been  examined  before  the  charge  was  framed 
and  he  was  called  on  for  his  defence  This  right  is 
fundamental  and  an  omission  to  so  examine  the 
accused  is  an  illegality  which  vitiates  the  trial  and 
not  a  mere  error  or  irregularity  which  can  be  cuied 
by  s  537  of  the  Code  R  AH  KHAUNG  v  EMPEROR,  A. 
I.  R.  1925  Rang.  363,  4  Bur  L  J  143,  27  Cr  L  J 
336  752 
8.  350— Transfer  of  case-  De  novo  trial, 

what  is— Procedure 

"Where  a  case  m  which  a  charge  has  been  framed 
is  transferred  to  the  Court  of  another  Magistrate  and 
under  the  proviso  to  s  330  (1)  of  the  Or  P  C  the 
accused  claims  a  de  novo  trial  tho  Magistrate  must 
re-commence  the  trial  and  not  merely  allow  further 
cross-examination  of  the  complainant  and  othei  pro- 
secution witnesses  and  generally  proceed  with  the 
case  from  the  stage  where  the  charge  v»  as  framed  S 
SIDIK  v  EMPEROR,  27  Cr.  L  J  332  748 

S.  360— Depositions  of  witnesses,  proper  time 

for  reading 

Section  360,  Cr  P,  C ,  is  mandatory  and  its  provi- 
sions must  be  strictly  complied  with  Reading  over 
the  depositions  of  all  the  witnesses  examined  on  one 
day  at  the  end  of  the  day  is  not  in  strict  confoimity 
with  the  requirements  of  the  law  The  evidence  of 
each  witness  should  be  read  over  to  him  after  it  is 
completed  before  that  of  another  witness  commences. 
C  ABDUL  BARI  MALLICK  v.  EMPEROR,  42  C  L  J  585, 
A.  I  R.  1926  Cal  157,  27  Cr.  L  J  375,  30  C  W  N 
644  887 


Criminal  Procedure  Code— contdj 

was  manifestly  wrong  or  if  in  fact  no  discretion  has 
been  exercised. 

The  principle  which  should  guide  the  High  Couit 
in  dealing  with  such  an  application,  is  whether 
there  are  reasonable  grounds  for  believing  that  the 
applicant  has  committed  the  offence  in  question 

Although  the  High  Court  has  unfettered  povreis  to 
giant  bail,  yet  in  exercising  these  powers  tlfe  High 
Court  ought  to  have  regard  to  the  limitations  im- 
posed on  lower  Courts  in  this  connection 

The  mere  previous  respectability  of  a  man.  is 
per  se  no  sufficient  reason  for  granting  bail  after  he 
has  been  convicted  of  a  criminal  oftence 

The  question  of  grant  of  bail  is  not  only  to  be 
dealt  with  from  the  point  of  view  of  there  being  likeli- 
hood or  not  of  the  accused  person  absconding 

In  the  absence  of  very  special  cause,  no  older  for  a 
suspension  of  sentence  should  be  passed,  as  the  result 
of  such  an  order  is  that  if  the  appeal  fails  finally 
the  convicted  person  only  serves  the  original  period 
of  his  sentence  less  the  period  of  suspension  N 
iSHAiKH  KARIM  v,  EMPEROK,  2?7  Cr  L  J.  319,  AIR 
1926  Nag  279  703 

S3, 43 5,43  8 — Sessions   Judge,    order  of — 

District  Magistrate,   power  of,  to  make  reference  to 
High  Court 

Section  435,  Cr  P  C.,  does  not  authorise  a  District 
Magistrate  to  make  a  refeience  to  the  High  Cuuit 
questioning  the  propriety  of  an  ordei  parsed  by  a 
besbioiis  Judge  His  propei  course  when  he  considers 
that  action  is  necessary  m  such  a  case  is  to  move 
the  Government  to  file  an  application  in  revision  A 
EMPEROR  v  DAULAT  SINGH,  2±  A,  L  J  224,  27  Cr  L. 
J  327  743 


— -  88.   367,   424  — Judgment    of    Appellate     — 

Court,  contents  of. 

A  judgment  of  an  Appellate  Court  other  than  a  High 
Court,  must  comply  with  the  provisions  of  s.  367  of 
the  Cr.  P.  C  ,  that  is  to  say,  it  must  contain  the  point 
or  points  for  determination  and  the  decision  thereon 
and  the  reasons  for  the  decision  8  DWARKA  v  EMPE- 
ROR, 27  Cr  L.  J  343  853 
S,  374— Reference  for  confirmation  of  death 

sentence— Duty  of  High    Court— Identification  test 

during  trial,  value  of. 

In  a  reference  for  confirmation  of  death  sentence, 
the  High  Court  must  satisfy  itself  that  the  finding  of 
fact  arrived  at  is  justiiied  by  the  evidence  ou  iecord 

Value  of  identification  test  held  during  trial  com- 
mented upon  C  ARSHED  ALI  v  EMPEROR,  30  0  W 
N.  166;  27  Or.  L.  J.  378  890 

*    '•  ••  8.  421— Appeal — Record  gent  for — Summary 

dismissal. 

A  Criminal  Appellate  Court  should  hear  the 
Pleader  and  ought  not  to  dismiss  an  appeal  summarily 
after  the  record  has  been  sent  for  and  received  C  LALIT 
KUMAR  SEN  v.  EMPEROR,  42  0.  L.  J.  551,  A  I  K.  1926 
Gal  174,  27  Cr.  L.  J  382  894 

—  88.426,  497 — Bail  application  rejectedby 

Sessions  Judge — Powers  of  High,  Court  to  grant — 

Respectability  of  accused  and  sufficiency  of  security , 

whether   ground   for  granting  bail — Suspension  of 

sentence,  when  to  be  granted. 

The  High  Court  has  power  to  grant  bail  under 
B.  426  (2)  of  the  Or,  P.  C.,  after  an  application  for  the 
same  made  after  a  conviction  by  a  Magistrate  has 
been  rejected  by  the  Sessions  Judge  But  the  Court 
Will  only  interfere  with  the  discretion  exercised  by 
}bf  Sewions  Judge  in  refusing  bail  it  that  discretion 


88.  435  to  439—  Revision— Judicial  Com- 
missioner's Court,  power  of — Interference  with  con- 
viction  by  Single  Judge — Conviction,  alteration  int 
by  Judge — Enhancement  of  sentence  at  instance  of 
Government — Procedure 

It  is  not  open  to  the  Judicial  Commissioner's  Court 
under  s  439  of  the  Cr  P.  C  to  alter  or  interfere 
with  a  conviction  which  has  been  arrived  at  by  a 
Judge  of  the  Court,  as  as  435  to  439  of  the  Code 
clearly  contemplate  interference  only  with  the  findings! 
sentences  or  ordeis  of  any  inferior  Court 

Where,  however,  a  Judge  of  the  Judicial  Commis- 
sioner's Court  hearing  an  appeal  against  a  conviction^ 
alters  the  conviction  to  one  for  a  graver  offence,  but 
does  not  himself  enhance  the  sentence,  but  suggests 
an  action  in  that  behalf  by  the  Local  Government, 
his  judgment  is  not  final  from  that  point  of  view 
and  the  Judicial  Commissioner's  Court  does  not 
become  a  functus  officio  and  is  competent  to  hear 
application  on  behalf  of  the  Local  Government  for 
enhancement  of  the  sentence. 

If  a  >findmg  of  a  Sessions  Judge  for  culpable- 
homicide  has  been  altered  by  the  Appellate  Court 
to  one  for  murder,  it  is  open  to  the  Judicial  Commis- 
sioner's Court  sitting  as  a  Court  of  Revision  to  pass 
a  legal  sentence  for  the  offence  of  murdor. 

The  proper  construction  to  be  put  on  s  439  (4),  Cr. 
P,  C ,  is  that  it  refers  to  cases  where  there  has  been 
a  complete  acquittal  and  not  to  cases  where  there  hag 
been  only  an  alteration  of  findings  by  the  Appellate 
Court,  the  conviction  by  the  Sessions  Court  being 
kept  in  tact 

It  is  open  to  a  Judge  of  the  Judicial  Commissioner** 
Court,  who  hears  an  appeal  againa*  a  conviction  and 
who  comes  to  the  fpxutawn  that  a  graver  offeaco  ha 


Ittt* 


OASES. 


U928 


Criminal  Procedure  Code— eontd, 

been  committed,  not  only  to  alter  the  conviction  but 
to  proceed  on  the  revisional  side  to  issue  notice  to  the 
accused  to  show  cause  why  the  sentence  should  not  be 
enhanced,  and,  if  no  sufficient  cause  is  shown,  to  en- 
hance the  sentence  accordingly.  N  LOCAL  GOVERNMENT 
v.  DOMA  K.UNBT,  27  Or.  L.  J.  339  851 

«   439 

See  CR  P.  C ,  1808,  s  202  590 

See  CR  P.  0  , 1898,  B.  257  865 

See  CR.  P.  0  ,  1898,  s.  476-B  454 

See  CR  P  C.,  1898,  s  494  75O 

s.  439— Acquittals-Revision  -—  Interference 

by  High  Court, 

Per  Mullick,  J. — The  power  of  interference  in 
revision  with  orders  of  acquittal  should  be  most 
sparingly  exercised  and  only  in  cases  where  it  is 
urgently  demanded  in  the  interests  of  public  justice, 
for  instance,  where  an  order  of  acquittal  has  been 
made  without  trial  and  under  an  error  of  law,  The 
High  Court  will  not  in  any  case  interfere  in  revision 
with  an  order  of  acquittal  on  the  ground  that  the 
inferences  drawn  by  the  lower  Court  from  evidence 
are  erroneous. 

The  Legislature  does  not  intend  that  a  private  party 
shall  secure  by  an  application  lu  revision  a  right 
whitth  is  leserved  for  the  Crown  only  Thfi  High 
Court  has  the  right  to  interfere  in  revision  with 
orders  of  acquittal,  but  will  only  do  so  in  very 
exceptional  cases,  for  instance,  where  there  has  been 
a  denial  of  the  right  of  fair  trial 

Per  Macpherson,  J  —The  High  Court  will,  in 
exercising  its  power  of  revision  against  an  order  of 
acquittal  under  s.  439  of  the  Cr  P  C  ,  observe  the 
limitations  which  established  practice  has  imposed 
upon  appeals  under  s.  417  of  the  Code  But  though 
in  practice  the  broad  rule  of  guidance  that  the  Court 
will  only  interfere  in  revision  with  an  acquittal,  at 
least  in  a  case  where  there  has  been  a  trial,  sparingly 
and  only  where  interference  is  urgently  demanded 
in  the  interests  of  public  justice,  may  be  accepted, 
no  general  rule  can  be  laid  down  beyond  this  that  the 
Coujrt  will  interfere  where  the  circumstances  require 
it:  *S*at  SIBAN  RAI  v.  BHAOWAT  DASS,  6  P.  L.  T.  833; 
27  Cr.  L  J.  235;  5  Pat.  25;  A,  J.  R.  1926  Pat.  176  219 

—  S.  439 — Revision — Re-trial,  whether  can  be 

ordered. 

Where  the  High  Court  sets  aside  a  conviction  in 
revision  on  the  ground  that  the  trial  was  illegal,  it 
has  power  to  direct  a  re-trial.  B  EMPEROR  v.  MANANT 
K  MEHTA,  27  Bom  L.  R  1343;  49  B  892;  A.  I.  R 
1926  Bom.  110:  27  Cr.  L  J,  305  689 
S.  439— tf  P.  Village  Panchayat  Act  (VI  of 

1920),  as.  31  ,SS— Criminal  trial— Acquittal— Revision 

— Interference  by  High  Court. 

Section  32  of  the  U.  P  Village  Panchayat  Act 
applies  only  to  suits;  the  corresponding  provision 
applicable  to  criminal  cases  is  contained  in  e.  31  of 
the  Act. 

Where  an  Appellate  Court  sets  aside  a  conviction 
on  the  ground  that  the  proceedings  in  the  Trial  Court 
were  without  jurisdiction,  the  finding  being  based  on 
a  misreading  of  a  statutory  provision,  the  High  Court 
is  entitled  to  set  aside  the  order  of  acquittal  in  revi- 
sion. A  MASALA  v,  EMPEROR,  27  Cr.  L.  J  358  870 

8,  439   (6)   atamtnded  by  Act  XVIII  of 

JOW),  effect  of.  J 

The  effect  of  the  addition  of  sub-s.  (8)  to  s.  430. 
Cr.  P.  C,  bv  Act  XVIII  of  1923,  IB  that  the 
Hi|fh  Court,  when  adjudicating  upon  an  application 


Criminal  Procedure  Code— contd, 

for  enhancement  of  sentence,  is  converted  into  a  Court 
of  Appeal  against  conviction  and  the  accused  is 
entitled  to  show  that  his  conviction  is  unjustified. 
L  EMPEROR  v  TEJ  RAJ,  27  Cr.  L.  J.  380  892 

88.    439,>  235—  Revision- Misjoinder    of 

charges— Notice  to  enhance  sentence — Objection  as  to 
legality  of  trial,  ivhether  can  be  taken — Revision. 
The  language  of  sub-s.  (6)  of  s   439,  Cr  P  C.,  ifl 
very  wide  and  it  is  open  to  an  accused  person  who 
has  been  called  upon  to  show  cause  against  an  en- 
hancement of  sentence  to  raise  any  point  that  might 
be  urged  against  his  conviction  either  to  a  Court  of 
Appeal  or  to  a  Revisional  Court.  It  is,  therefore,  com- 
petent to  an  accused  person  in  such  a  case  to  urge 
that  his  trial  was  illegal    owing    to    misjoinder  of 
charges.     B  EMPEROR  v  MANANT  K  MEHTA,  27  Bom.  L. 
R  1343,496.892;   A.  L  R  1926  Bom.  110,  27  Cr  L  J. 
305  689 
S.  476— Offence  committed  in,  course  of  judi- 
cial proceeding-  Complaint  by  Court  after  termina- 
tion of  proceedings,  legality  of— Delay,  effect  of — 
Complaint,  when  to  be  made 

The  power  conferred  upon  a  Court  under  s.  476  of 
the  Cr  P  C,  to  make  a  complaint  to  a  Magistrate  when 
any  of  the  offences  referied  to  ins  195,  els  (6"  and 
(c),  appears  to  have  been  committed  m  or  in  relation 
to  a  judicial  proceeding  before  it,  is  excrcisable  even 
after  the  termination  of  the  proceeding  in  which  the 
offence  complained  of  is  said  to  h^ve  been,  committed. 
No  hard  and  fast  rule  can  be  laid  down  as  to 
within  what  time  a  complaint  should  be  made  under 
s  476.  If  a  Court  after  the  lapse  of  a  considerable 
time  makes  a  complaint  under  s.  476  such  com- 
plaint is  open  to  the  objection  that  it  was  made  after 
an  undue  delay.  Each  case  would  depend  upon  its 
own  circumstances 

The  effect  of  the  changes  made  in  the  Cr.  P, 
C  by  the  introduction  of  SB.  476-A  and  476-B  is  no 
longer  to  make  it  necessary  that  a  proceeding  under 
s  476  should  be  a  part  of,  or  so  soon  after  the  termi- 
nation of  the  judicial  proceeding  as  to  make  it  a  part 
of,  the  judicial  proceeding  M  THOKALA  SESHAMMA.  v. 
YELLATURI  VENKAMMA,  22  L.  W.  863;  27  Cr.  L.  J.  280,  A. 
L  R.  1926  Mad.  238  456 

88.   476,    47 GB— Complaint   of   offence — 

Preliminary  enquiry,  extent  of— Appellate  Court,  in* 

terference  by 

The  grant  of  a  right  of  appeal  against  an  order 
making  a  complaint  under  8.  476  of  the  Cr  P.  C.  has 
not  conferred  any  new  right  upon  the  person  against 
whom  a  complaint  is  made  and  the  extent  of  the  pre- 
liminary enquiry  to  be  made  under  s.  476  is  still  left 
to  the  discretion  of  the  Court.  If  a  prnna  facie  case 
has  been  made  out  the  Appellate  Court  ought  not  to 
interfere  with  the  order  of  a  lower  Court  making  a 
complaint.  Pat.  CHAMARI  SINGH  v  PUBLIC  PROSECUTOR, 
4  Pat.  484;  A.  L  K.  1925  Pat.  677;  27  Cr.  L.  J.  371,  7  P, 
L.  T.  372  883 
88.  476,  4768,439— Civil  Procedure  Code 

(Act  V  of  1908),  8.  115~0rder  by  Civil  Court  making 

or  refusing  to  make  complaint— Appeal— Revmon^ 

nature  of. 

A  petition  for  revision  of  an  order  passed  by  a  su- 
perior Court  under  s.  476-B,  Cr.  P.  C.,  on  appeal 
from  an  order  of  a  Civil  Court  making  or  refusing  to 
make  a  complaint,  must  be  dealt  with  under  s.  1)5,  C. 
P.  G.,  and  not  tinder  e,  439,  Cr.  P.  0.  A  BANWARI  Lit 
i\  JHUNKA,  17  Or,  L,  J,  278;  24  A,  L,  J.  217;  A.  I  B, 
1996  AIL  920  4814 


Tol.  92] 


OBNHRAL  IKDEX, 


1093 


Criminal  Procedure  Code-contd, 

8.480.    5ee  PENAL  CODE,  I860,  a  179     428 
— 8.  488— "Means",  what  are— Husband,  un- 
employed and  without  property,  liability  of,  to  main- 
tain wife — Remedy,  nature  of 
The  word  'means'   m  s  488  of   the  Cr  P.  C     does 
not  signify  only  visible  means  such  as  real  property 
or  definite    employment     If  a   man  is  healthy   and 
able-bodied,  he  must  be  taken  to  have   the  "means'*  to 
support  his  wife 

Section  488  of  the  Cr  P  C  provides  a  speedy 
remedy  and  safeguards  a  deserted  wife  or  child  from 
starvation,  but  when  other  issues  are  raised,  they 
ought  to  be  settled  in  the  Civil  Courts  to  which  persons 
aggrieved  by  orders  under  the  section  ought  to  take 
their  case  M  In  re  KANDASAMI  CHETTY,  50  M  L  J  44 
(1926;  M  W  N.  146,  27  Cr  L  J  350,  A  1  R.  1926  Mad' 
346  862 

777  !*•  I93'  495— Railway  s  Act    (IX  of   1890), 

a    145  (S)— Criminal  trial—Public  Prosecutor,  right 
of  precedence  of— Pleader  authorised  by  Agent  of 
Railway  to  conduct  prosecution,  position  of 
Section  145  (2)  of  the    Railways  Act  only  entitles  a 
person  authorized    by  the  Agent  of  a  Railway  to  con- 
duct prosecution  on  behalf  of  the  Railway  Administra- 
tion, to  do  so  without  the  permission  of  the  Magistrate 
which  would,  except  for  the   provision,  be  required 
under    s  495    of  the   Cr  P  C      Pnma  facie,  neither 
s  145  (2)  of  the  Rail  ways  Act    noi   s  495  of  the  Cr  P 
C    affocts  s  493  of  the  latter  enactment   which  deals 
with  the  right  of  appearance  and    precedence  of  the 
Public   Prosecutor   before   any  Court  in   which  any 
case  of  which  he  has  chaige  is  under  trial 

Where  the  Public  Prosecutor  has  charge  of  a  pro- 
secution, a  Pleader  instructed  by  a  private  pei  son, 
including  ths  Ag3nt  of  a  Railway  Administration, 
must  act  under  the  directions  of  ths  Public  Prosecutor 
Action  Ho  (2)  of  the  Railways  Act  contemplates 
mainly,  if  not  exclusively,  prosecutions  for  offences 
undsr  that  enactment,  that  is  to  say,  private  prosecu- 
tions  undertaken  by  the  Railway  Administration  m 
whic*i  the  Public  Prosecutor  does  not  appear  as  dis- 
tinguished fiom  public  prosecutions  undertaken  or 
takan  over  by  the  State  and  in  particular  prosecu- 
tions under  the  Penal  Code  Pat.  BENGAL  NAGPUK 

ipat  75 


SS,  494, 439— Withdrawal  of  case,  applica- 
tion, /or,  rejection  of -Discretion  of  Court -Revi- 
sion 

Where  a  Sessions  Judge  in  rejecting  an  applica- 
tion by  the  Public  Prosecutor,  under  s  494,  Cr  P  C  , 
to  withdraw  a  ca.se,  exercises  a  judicial  discretion  in 
a  proper  way,  the  High  Court  will  not  interfere  with 

r^tS'lm  iri  re/ision-     M  KALIAPPA  OOUNDAN,  In  re,  23 
L  W.  101,  A.  I  R  1926  Mad  296,  27  Cr  L  J  334  750 

8,  497.  See  CR  P  C  ,  1898,  s  426  703 

— 8«.  4  9  7, 49  8— Bail-Policy  of  law 

The  policy  of  the  law  is  to  allow  bail  m  case  cf 
under-trial  prisoners  rather  than  to  refuse  it. 

It  is  no  ground   for  refusing  bail    that   to  grant  it 

would  prejudice    the    case     L    EMPEROR   v    GHULIM 

MUHAMMAD   A  I  R.  1925  Lah   510;  7  L,  L   J.  331    27 

Cr.  L  J  302  |590 

9'5l?—Absconder— Evidence  recorded  in  ab- 

sencc—t  indmg  as  to  absconding,  whether  necessary 

Section  512  of  the  Cr.  P.  C  requires  only  that 
before  the  Court  records  the  depositions  of  the  wit- 
nesses for  the  prosecution  it  should  be  proved  that 


Criminal  Procedure  Code—contd 

the  accused  person  has  absconded  and  that  there  10 
no  immediate  prospect  of  arresting  him,  and  not  that 
a  finding  should  be  recorded  to  that  effect. 

A  Magistrate  before  recording  evidence  under  s  512, 
Cr.  P.  C  ,  took  the  statements  of  two  constables  who 
had  searched  for  the  accused  and  had  not  been  able 
to  find  him,  and  also  issued  a  proclamation  against 
the  accused  under  B  87  of  the  Code 

Held,  that  the  requirements  of  s  512,  Cr  P  C  ,  had 
been  fulfilled   and  that  evidence   had  been   properly 
recorded  under  that  §3ction.  L  DAYA  KBM  v   EMPBROB, 
6  L  489,  27  Cr  L,  J  247,  AIR.  1926  Lah.  83       423 
— -83.    514,  109,  11O— Security  for  good  be- 
haviour—Conviction—Order  of  forfeiture,  whether 
can  be  made  subsequently. 

Where  a  person  who  has  been  put  on  security  for 
good  behaviour  is  convicted  of  an  offence  involving  a 
forfeiture  of  the  surety  bond,  it  is  not  incumbent  upon 
the  Magistrate  who  convicts  him  to  pass  an  order  of 
forfeiture  of  the  bond  there  and  then.  Such  an  order 
maybe  passed  at  any  subsequent  time  8  JEOMAL  v. 
EMPEROR,  27  Cr  L  J  326  742 

83.  514,  123,  Sch.  V,  Form  NO.  42— Bail- 

lond  filed  in  Court  since  abolished — Successor,  powers 

of,  to  enforce  bond — Security  for  keeping  peace  or 

good  behaviour — Order  directing  accused  to  furnish 

security  within  fixed  time— Absconding  of  accused — 

Sureties  for  attendance  of  accused,  liability  of 

A  security  bond  given  m  form    No  42  of  the  Fifth 

Schedule  to  the  Cr  P  C    originally  hied    m  a  Court 

which  haa  since  ceased  to  exist,  can  also  be  enforced 

by  its  successor  to  which  the  other  functions    of  the 

defunct  Court  have  been  transferred. 

Where  a  Magistrate  passes  an  order  under  s  123, 
Cr.  P  C ,  directing  an  accused  to  give  security  for 
keeping  the  peace  or  for  good  behaviour  for  more  than 
one  year  and  allows  him  time  to  tile  a  security  by  a  fixed 
date,  but  the  accused  absconds  on  that  date,  the  liabil- 
ity of  the  sureties  who  held  themselves  responsible 
for  the  accused's  attendance  m  Court  cannot  be  held 
to  be  terminated,  becauss  until  it  is  known  whether 
thft  accused  can  give  the  security  or  an  ordei  is  .passed 
referring  the  case  for  the  final  orders  of  the  Sessions 
Judge  it  cannot  be  said  that  the  proceedings  m  the 
Magistrate's  Court  have  been  terminated  A  MUSTAQIM- 
UDDIV  v  EMPEROR,  21 A  L.  J  327,  27  Cr  L  J.  377,  A  J. 
R  1926  All  297  889 

S,   526—  Application    for    postponement   to 

enable  to  apply  for  transfer — Magistrate  enquiring 
into  allegations—Propriety— Transfer 
An  enquiry  by  the  Magistrate,  on  a  party's  apply- 
ing to  him  for  postponement  of  the  case  to  enable  him 
to  apply  for  transfei ,  into  the  grounds  of  transfer  him- 
self is  highly  improper  and  would    naturally    cause 
apprehension  in  the  mind    of  the  petitioner  that  the 
Tribunal  trying  the  case  is  not  likely  to  give  him  an 
impartial  and  unbiased  hearing     L  MUGHEKSUDDIN   v 
EMPEROR,  27  Cr  L  J  382:  A  I  H  1926  Lah  236    894 
S.  526 — Transfer    of  case— District  Magis- 
trate witness  for  prosecution — Examination   of  com- 
plainant at  his  house. 

The  fact  that  the  District  Magistrate  is  cited  as  a 
witness  for  the  prosecution  in  a  trial  before  another 
Magistrate  in  the  District  is  no  ground  for  supposing 
that  the  accused  will  be  prejudiced  in  his  trial,  so  as 
to  justify  a  transfer  of  the  case 

The  fact  that  a  Magistrate  trying  a  case  proposes  to 
conduct  that  portion  of  the  proceedings  in  which  the 
complainant,  who  is  a  very  old  man  and  for  many 
yews  hag  uot  left  the  precincts  of  hU  residence,  is  a 


1094 
Criminal  Preo«dur«0ode— cencld. 


INDIAN  CASES. 


[1920 


witness,  at  the  latterfs  residence,  giving  the  accused 
every  opportunity  of  beinsf  represented  and  conduct- 
ing his  case  there,  does  not  call  for  a  transfer  of  the 
case,  as  the  circumstance  would  in  no  way  prejudice 
the  trial  O  ISHWAR  DAB  v.  EMPEROR,  27  Or  L  J  344- 
A.  I  R  1928  Oudh  290  856 

— 8,  526— Transfer  of  criminal  case—Expres- 
sion of  opinion  by  Magistrate  in  another  case  about 
guilt  of  accused 

The  fact  that  a  Magistrate  has  expressed  in  another 
criminal  case  a  distinct  opinion  about  the  guilt  of 
the  accused  is  a  reasonable  ground  for  the  apprehen- 
sion that  he  may  not  have  a  fair  and  impartial  trial 
before  the  Magistrate  and  is,  therefore,  a  good  ground 
for  transferring  the  case  from  his  file  N  VISHWA- 
NATH  PRASAD  v.  EMPEROR,  27  Or  L  J.  210;  A.  I  R.  1926 
Nag,  98  162 

8.537. 

See  CR  P.  C.,  1898,  s   190  741 

See  OR.  P  G  ,  1898,  B  342  752 
8. 539— Affidavit  sworn  before  Presidency 

Magistrate,  Calcutta,  whether  admissible  in   Patna 

High  Court. 

Affidavits  sworn  before  a  Presidency  Magistrate  of 
Calcutta  are  not  admissible  in  the  Patna  High  Court 
Pat.  BENGAL  NAGPUR  RAILWAY  Oo  v.  MAKBUL  A.  I  R 
19*5  Pat.  755,  (1926)  Pat.  74;  27  Cr.  L  J  313  7  P  L  T 
343  '  697 
8,  562,  object  of— Discretion,  exercise  of, 

principles  relating  to, 

The  sole  intention  of  s  562  of  the  Or.  P  C  is  that 
an  accused  person  who  is  convicted  of  a  crime  should 
be  given  a  chance  of  reformation  which  he  would  lose 
by  being  incarcerated  in  prison  The  powers  con- 
ferred by  this  section  should  not  be  used  for  the 
purpose  of  showing  favour  to  any  particular  class  of 
persons  and  in  the  exercise  of  these  powers  a  Magis- 
trate should  see  that  the  crime  that  the  accused 
person  has  committed  does  not  indicate  that  he  is 
rather  a  fortunate  habitual  than  a  true  fiist  offender. 
S  EMPEROR  v,  MATHRO,  27  Cr.  L  J.  309:  AIR.  19?ft 
Sind  101  693 

• S,  562—  Release  on  security  —  Revision- 
Order,  whether  can  be  set  aside. 

Section  562  (3),  Or.  P.  O  ,  empowers  the  High  Court 
in  the  exercise  of  its  powers  of  revision  to  set  aside 
an  order  under  s  562  and  substitute  a  sentence  of 
imprisonment.  A  EMPRROR  v  KESAR,  27  Cr.  L  J  303 
24  A,  L.  J  228,  A.  I.  R  1926  All.  226  *  591 
Sch,  V,  Form  No.  42.  See  Cr.  P.  0.,  1898, 

s.  514  839 


Cr088-8Ult8.    See  C  P  C.,  1908,  ss   10, 11 


198 


Custom— Alienation— Necessity— Marriage  of  child- 
ren -Enquiry,  scope  of 

Where  the  necessity  stated  for  an  alienation  of 
ancestral  land  by  a  village  proprietor  is  the  marriage 
of  children,  and  this  is  also  spoken  to  by  the  lambar- 
dar  who  attests  the  sale-deed,  and  there  are,  as  a 
matter  of  fact,  several  young  children,  one  of  whom 
is  approaching  marriageable  age,  the  vendee  is  not 
bound  to  make  any  further  enquiry  as  to  whether 
any  actual  steps  to  make  arrangements  for  marriages 
Jiave  been  taken  or  not.  L  IBRAHIM  v  SHAH  MAHOMED 

263 

,  essentials    of— Family    custom— Modern    in- 
stances— Inference  of  custom. 
Per  Raea   J  --If  a  party  relies  upon  the   special 
cuetomofafamilytotake  the  succession  out  of  the 


Custom— contd. 

ordinary  law,  such  custom  must  be  proved  to"  be 
ancient,  continuous,  certain  and  reasonable  and, 
being  in  derogation  of  the  general  rule  of  law,  must 
bp  construed  strictly  A  custom  must  be  satis- 
factorily proved  by  evidence  of  particular  inntances 
so  numerous  as  to  justify  the  Court  in  finding  in 
ftrwir  of  the  custom 

When  the  custom  is  proved  to  exist  it  supersedes  the 
general  law  which,  however,  still  regulates  all  outside 
the  custom. 

Per  Ashworth,  J  — A  custom  must  be  unequivocally 
stated  and  proved  but  it  does  not  follow  that  it 
cannot  be  proved  by  inference.  Inference  is  one  of 
the  methods  of  proof  and  in  the  case  of  custom  there 
is  no  reason  to  reject  a  clearly  logical  inference 
against  which  no  consideration  prevails. 

Per  Raza,  J.  (Ashworth,  J.,  dissenting)  —One  instance 
or  even  four  modern  instances  are  not  sufficient  to 
prove  a  family  custom. 

The  existence  of  a  custom  of  the  brothers  and 
nephews  of  a  deceased  Hindu  succeeding  together 
would  not  lead  to  a  necessary  inference  that  a  custom 
existed  to  this  effect  also  on  the  death  of  a  childless 
widow.  O  RAMPAL  SINGH  v.  RAJRANG  SINGH,  3  O.  W  N. 
73,  A.  I  R  1926  Oudh  211  126 
Inheritance  —  Daughters  v  Collaterals — 

Muttazai  Pathans  of  Basti  Mithu  Sahib  in  Jullundur 

District. 

Among  Muttazai  Pathans  of  Basti  Mithu  Sahib,  a 
suburb  of  Jullundur  Citv,  a  daughter  does  not  in- 
herit in  the  presence  of  brothers  or  near  collaterals 
of  the  last  male  owner 

The  Muttazai  Pathans  of  Basti  Mithu  Sahib  are 
presumably  governed  by  agricultural  custom,  and  the 
onus  to  prove  that  a  daughter  inherits  in  th •>  presence 
of  brothers  or  near  collaterals  lies  on  the  daughter. 
L  MURAD  BIBI  v  AMIR  HAMZA  278 

Kurhi  kamini  cess,  nature  of — Liability  of 

non-propnetary  owners  of  houses — Burden  of  proof 
— Suit  for  declaration  that  cess  not  payable— Juris- 
diction of  Civil  Courts. 
Kurhi  kamini  is  a  cess  of  the  nature  of  a  house  or 

ground  rent  and  not  in  the  nature    of  a  hearth   cess. 
The  burden  of  proving  that   kurhi  kamini  dues  are 

leviable  from  such  non-proprietary   residents  of  the 

village  as  are  owners  of  the  houses  and  the    sites  lies 

on  the  person  seeking  to  recover  them. 
A  suit  for  a  declaration  by  a  person  that   he  is  not 

liable  to  pay  kurhi  kamini    dues  is   cognizable  by  a 

Civil  Court.    L  SINGH  RAM  v.  KALA,  8  L  L.  J.  39;  A.  I. 

R.  1926  Lah.  244;  7  L.  173  1012 

Pre-emption— Village        Badnauli,       Tahail 

Hapur,  Meerut  District 

A  custom  of  pre-emption  exists  in  village  Badnauli, 

Tahsil  Hapur,  Meerut  THstrict.    AKHAZAN  SINGH  v. 

UMRAO  SINGH,  A.  I.  R.  1925  All.  44;  L  R.  5  A.  609  Civ. 

335 

Pre-emption- -Wajib-ul-arz,  entry     in,    con- 
struction of— Preferential  right  of  pre-emption^ 
A  wajib-ul-arz  classified  the  different   categories  of 

pre-emptors  as  follows  * — 
(1")  Own  brothers  * 

(2)  Co-sharers  in  the  same  patti ; 

(3)  Co-sharers  in  other  pattis. 

A  later  wajib-ul-arz  gave  only  one  classification  of 
pre-emptors,  namely  -—"Own  brothers  and  co-sharers 
of  the  village";  and  it  was  provided  that  if  none  of 
these  people  wished  to  pre-empt,  a  sale  may  be  made 
to  Btrangeri :  - 


Vol  92] 
Ouitom~-eoatd. 


&BMB1UL  INDEX, 


IMf 


Customs-conoid, 


,  (1)  that  the  two  wAJibitt-araiz  must  be  read 
together  inasmuch  as  the  right  of  pre-emption  record- 
ed therein  was  m  fact  the  same,  the  later  record  having 
been  prepared  in  a  less  careful  manner  than  the  one 
which  preceded  it  , 

(2)  that  under  the  terms  of  the  wajib-ul-arz  an 
own  brother  of  the  vendor  had  a  better  right  of  pre- 
emption than  a  co-sharer  in  the  village  A  MAQSUD 
Au  v.  ABDULLAH,  L.  R  6  A.  112  Civ  ,  A  I  R  1925  All 
342  468 

-  —  •  -  ,  question  of,  whether  of  fact  or  law.    See  0. 

P.  0.,  1908,  s.  11  769 

~-  ------  *••*  Shamilat—  Grazing  rights—  Proprietors,  right 

of,  to  cultivate-  Pasturage—Sufficient   Area  to    be 

set  apart 

Plaintiffs,  mahkan-i-qabza,  sued  defendants,  proprie- 
tors, for  a  declaration  that  they  were  entitled  to 
graze  their  cattle  in  and  to  take  away  wood  from 
the  shamilat  deh>  and  f  or  an  injunction  restraining 
the  defendants  from  cultivating  their  land  It  ap- 
peared that  the  plaintiffs'  right  to  graze  their  cattle, 
to  take  away  fuel  and  to  cut  grass  from  the  area  in 
dispute  had  been  established  in  previous  litigation 
between  the  parties 

Held,  that  though  the  defendants  were  entitled  to 
cultivate  the  land,  the  plaintiffs  were  entitled  to  have 
sufficient  pasturage  for  their  cattle  and  that,  therefore, 
the  defendants'  right  of  cultivation  should  extend  only 
to  so  much  of  the  land  as  will  leave  plaintiffs  a 
sufficient  amount  of  area  for  grazing  purposes  L 
KANSHI  RAM  v  MUHAMMAD  ABDUL  RAHMAN,  6  L.  L  J 
336;  AIR  1925  Lah  216  403 

-  Succession  —Diversion    of  ancestral  property  — 
Extinction  of  lineal  descendants—  Reversion 

On  the  lineal  descendants  of  the  person,  in  whose 
favour  a  diversion  of  ancestral  land  had  been  made, 
dying  out,  the  land  reverts  to  the  male  heirs  of  the 
last  owner  before  the  diversion,  and  not  to  those  of 
the  person  who  received  the  land  from  him  L  DIN 
MOHAMMAD  v  MATAB  BIHI,  AIR  1926  Lah  201  252 

-  —  Succession—  "Malik",    meaning  of—  Widow, 
estate   taken     by—  Kayasthas    of   village    Khanpur 
Khabw  a,  District  Rai  Bareli 

Where    a    devisee    or  a    donee   la    described  as  a 

malik,    he  has  a  full  right  of  alienation  unless  there 

is  something  m    the  context    or   in    the  surrounding 

circumstances  to  indicate  that  such  full  proprietary 

rights  were  not  intended  to  be  conferred, 

A  clause  m  a  wajib-ul-arz  relating  to  the  succes- 
sion to  the  estate  of  a  deceased  proprietor  ran  as 
follows  —"If  included  amongst  the  wives  one  wife 
has  sons  and  the  others  have  none  then  such  wives  aa 
have  no  sons  shall  take  shares  for  the  period  of  their 
lives,  and  after  the  deaths  of  such  wives  the  sons  of 
the  other  wives  shall  be  mahk  of  such  shares  and  if 
there  be  no  wife  with  sons,  then  the  wives  of  the 
deceased  shall  become  malik  over  the  inheritance  of 
the  deceased  in  equal  shares" 

Held,  that  the  meaning  of  the  concluding  portion  of 
the  clause  was  that  where  a  proprietor  had  left  only  one 
wife  without  a  son,  that  wife  would  become  absolute 
owner  with  right  of  transfer  over  the  whole  of  his 
property. 

Amons  Kayasthas  of  village  Khanpur  Khabura,  m 
the  Rae  Bareli  District,  a  widow,  in  the  absence  of 
sons,  succeeds  to  the  estate  of  her  deceased  husband  a* 
an  absolute  owner  with  full  powers  of  alienation. 
O  SABTAJ  Koaa  »,  MAHAWSO  Bux,  A.  I.  R,  1926  Oudh  332 

657 

•  '  '»""  Wajib-uJhirs,  entry  in,  vafut  o/. 


A  Settlement  Officer  in  recording  custom  in  a 
wajib-ul-arz  has  to  perform  duties  which  the  Govern- 
ment orders  him  to  perform  One  of  these  dutiei  is 
to  record  customs  as  the  Settlement  Officer  finds  them 
and  not  as  he  might  think  they  ought  to  be.  When, 
therefore,  it  is  not  shown  by  reliable  evidence  that 
the  Settlement  Officer  neglected  to  perform  his  duty 
or  was  misled  in  recording  a  custom,  and  it  does  not 
appear  that  the  statement  of  the  custom  is  ambiguous, 
the  record  in  a  wajib-ul-arz  of  a  custom  is  most 
valuable  evidence  of  the  custom,  much  more  reliable 
evidence  than  subsequent  oral  evidence  given  after 
a  dispute  as  to  the  custom  has  arisen  O  SARTAJ  KOBR 
v.  MAHADEO  Bux.  A,  I.  R  1226  Oudh  332  657 
Wajib-ul-an  tntnes,  value  of 

Entries  m  wajib-ul-arz  as  to  the  Lability  for  village 
dues  do  not  bind  any  one  except  the  proprietors  who 
are  parties  to  them  L  SINGH  RAM  v.  KALA.  8  L  L,  J. 
3ft,  A  I  R  1926  Lah  244,  7  L  173  1012 
Widow — Alienation  —  Exchange  —  Suit  for 

declaration  challenging  exchange — Second  appeal— 

Certificate,  whether  necessary  —  Punjab  Courts  Act 

(VI  of  1918),  s  tf 

In  a  suit  for  a  declaration  that  an  alienation  effected 
by  a  widow  is  without  necessity  and  will  not  affect 
the  reversionary  rights  of  the  plaintiffs,  a  second 
appeal  is  competent  without  a  certificate,  as  no  ques- 
tion of  existence  or  validity  of  a  custom  is  involved 
therein,  because  admittedly  a  widow  cannot  elect  an 
alienation  except  for  necessity 

Customary  prohibition  against  alienations  by  a 
widow  is  not  confined  to  cases  of  sales  and  mortgages 
but  applies  to  those  of  exchanges  as  well  L  BUTA  v, 
GHULAM  MUHAMMAD,  A  I.  R  1926  Lah  247  725 

Damages,  prospective     See  CAUSE  OP  ACTION        75 
Debtor  and  creditor — Duty  to  find  and  pay  creditor. 

See  O  P  C  ,  1908,  s    10  (c)  76O 

Declaratory  suit— Necessary  findings.    See  PUNJAB 

MUNICIPAL  ACT,  1911,  s  193  966 
Temporary  injunction,  grant  of 

A  temporary  in)unction  can  be  granted  in  a  suit  for 
declaration  L  BANTU  v  I  EHNA  DAS  723 
Decree,  construction  of  See  EXECUTION  OF  DECREE  504 
, joint—  Decree  against  several  defendant* — 

Some  ?  ehefs  common  against  all  and  some  separate 

— Decree,  whether  joint 

A  decree  is  a  joint  decree  if  any  one  of  the  relief  a 
granted  under  the  decree  is  against  the  defendant* 
jointly,  even  though  some  other  reliefs  may  be  given 
against  each  defendant  separately,  BO  that  an  applica- 
tion to  execute  the  decree  against  one  defendant  as  to 
one  relief  saves  limitation  against  all  defendants  in 
respect  of  all  reliefs  M  PATTAMAYYA  v  PATTAYYA,  SO 
M  L.  J  215;  (1916)  M  W  N.  26* ,  A.  I  R.  1926  Mad 
453  782 
,  setting  aside  of,  on  ground  of  fraud,  See 

FRAUD  317, 322 

Defamation,  civil  and   criminal— Distinction.   See 

PENAL  CODE,  1860,  s.  499  429 

Dekkhan  Agriculturists'  Relief  Act  (XVII  of 
1879) — Execution  of  decree— Death  of  judgment- 
debtor—  Legal  representative,  whether  can  prove 
status  as  agriculturist 

Where  a  judgment-debtor  dies  after  decree  but 
before  execution  proceedings  are  completed,  it  is  open 
to  his  legal  representative  to  prove  that  he  was  an 
agriculturist  and  thus  claim  tne  benefit  of  the  pro- 
visions of  the  Dekkhan  Agriculturists'  Relief  Act  B 
SHIBRAJ  BHOJRAJ  DRSAI  v  EBNAKI  KONDA]  MAHAE, 
87  Bom.  L,  B,  1490;  A,  I,  B,  1916  Bom,  HO  664 


1096 


INDIAN  CASES, 


[1926 


t^kkhan  Agriculturists'  Relief  Aot-concld, 

*• 81  3— Suit  to  see  aside  iale—Relieft  whether 

can  be  granted 

The  Dekkhan  Agriculturists1  Relief  Act  gives  extra- 
ordinary reliefs  in  certain  cases  which  are  specified  in 
the  Act  These  include  a  suit  for  redemption  but  not 
a  suit  to  set  aside  a  sale-deed  In  a  suit  of  the  latter 
kind,  therefore,  the  plaintiff  is  not  entitled  to  take 
advantage  of  the  provisions  of  the  Act  B  VISHVA- 

NATHBHAT  ANNABHAT  PUJAKI    V  MALLAPPA    NlNGAPPA,    27 

Bom.  L.  R.  1103;    49  B.  821,  A.  I.  R,  1925  Bom.  514 

628 

Deposit— loss,  liability  for.    See  LEASE  520 

Document,  material    alteration    in— Suit  to  recover 

money — Acknowledgment     produced    in    evidence — 

Material  alteration  in  acknowledgment,  effect  of — 

Suit,  whether  can  be  decreed. 

The  rule  that  no  decree  can  be  passed  in  a  suit 
brought  on  a  document  which  has  been  materially 
altered  after  execution  without  the  privity  of  the 
party  to  be  affected  by  it,  has  no  application  where 
the  obligation  to  be  enforced  does  not  arise  under  the 
altered  instrument  and  the  instrument  is  produced 
merely  as  a  piece  of  evidence  in  proof  of  the  obliga- 
tion 

Where  a  cause  of  action  for  recovery  of  money  lent 
to  the  defendant  exists  independently  of  any  docu- 
ment which  may  have  been  obtained  from  the  defend- 
ant in  support  of  the  advance,  the  fact  that  the 
document  has  been  materially  altered  is  no  ground  for 
"dismissing  plaintiff's  claim  for  the  advance. 

An  acknowledgment  which  merely  evidences  the 
receipt  of  a  loan  does  not  amount  to  a  contract  and 
does  not  furnish  a  cause  of  action,  and  a  claim  in 
proof  of  which  such  an  acknowledgment  is  produced 
can  be  decreed  despite  the  fact  that  the  acknowledg- 
ment has  been  materially  altered  without  the  consent 
of  the  debtor  affected  by  it 

«'  'A  material  alteration  in  a  written  acknowledgment  of 
debt  does  not  render  it  inoperative  as  the  acknowledg- 
ment is  merely  an  evidence  of  pre-existing  liability  N 
TAPIRAM  v  JUGALKISHORE,  21  N.  L  R  169;  AIR 
1926  Nag  209  305 

Easement — Customa-^  right — Public  nuisance 

No  right  to  the  user  of  a  public  property  can  be 
acquired  by  custom,  where  the  user  amounts  to  a 
public  nuisance  Such  a  custom  is  unreasonable  M 
PAKKIR  MAHAMUD  v,  PICHAI  THEVAN  465 
,  grant  of,  whether  transfer  of  ownership  See 

TRANSFER  OF  PROPERTY  ACT,  1882,  s  118  672 

Easements  Act    (V   Of  1882),  8,   4  —  Easement, 

essentials  of— Property,   ownership    in,  claim    of — 

Easements,    whether  can  be  claimed— Long  user. 

To  create  an  easement  there  must  be  a  dominant 
and  a  servient  heritage — and  the  right  acquired  must 
be  for  the  beneficial  enjoyment  of  the  dominant  herit- 
age 

User  under  a  claim  of  ownership  of  the  property,  in 
and  over  which  such  user  is  had,  and  which  is  nega- 
tived, cannot  operate  to  found  a  right  of  easement 
over  the  property. 

In  the  absence  of  a  finding  that  the  property  is 
either  private  property  or  the  property  of  the  Govern- 
ment, a  right  of  easement  by  prescription  cannot  be 
established  over  the  property. 

The  acquisition  of  an  easement  by  prescription 
must  be  by  a  definite  person  or  persons  either  natural 
or  juristic  and  a  fluctuating  and  uncertain  body  of 
inhabitants  like  a  particular  community  of  a  village, 
cannot  acquire  such  right,  M  PAKKIR  MAHAMUD  v 
PICHAI  THEVAN  465 


Easements  Act— conoid. 

0.52.   See  PROVINCIAL  SMALL  OACBB  CouBta 

ACT,  1887,  SOH.  II,  CL.  (8)  683 

Ejectment—Jus  tertii,  plea  of,  whether  can  be  taken. 

Jn  an  action  of  ejectment  the  defendant  is  entitled 
to  plead  in  defence  the  right  of  some  one  having  a 
superior  or  equal  title  with  the  plaintiff  to  the  pro- 
perty in  dispute,  but  if  he  fails  to  prove  satisfactorily 
that  the  parties  whom  he  has  put  forward  ar6  entitled 
to  the  property  in  preference  to  the  plaintiff  the 
plaintiff  would  be  entitled  to  a  decree.  P.  C.  MAHABIR 
PRASAD  TBWARI  v.  JAMUNA  SINGH,  A.  I,  R.  1925  P.  0, 
234;  (1925)  M  W.  N.  738;  23  L.  W.  75  31 
ft U It— Nonjoinder  of  party,  effect  of. 

The  mere'  non- joinder  of  a  party  in  an  ejectment 
suit  is  not  fatal  to  the  trial  of  the  suit.  The  only 
result  of  such  non-joinder  would  be  that  the  party  not 
impleaded  will  not  be  bound  by  any  decree  passed  in 
the  suit  C  BAIKUNTHA  NATH  DE  v.  SHAIK  HARI,  A.  I. 
R.  1926  Gal.  592  899 

Election  petition — Amendment— After  period  fixed, 

See  MADRAS  LOCAL  BOARDS  ACT,  1920,  ss.  35,  56  1OO 
English  Law,  principles  of,  whether  to  be  followed. 

See  LANDI^ORD  AND  TENANT  537 
Estoppel,  See  C.  P  0.,  1908,  0.  XXI,  R.  89  732 
1  equitable— Fraudulent  acquiescence, 

Mere  acquiescence  cannot  deprive  a  person  of  his 
legal  rights,  unless  he  has  acted  in  such  a  way  aa 
would  make,  it  fraudulent  for  him  to  set  up  those 
rights  The  elements  necessary  to  constitute  such 
fraudulent  acquiescence  are  :— 

(1)  that  the  trespasser  must  have  made  a  mistake 
as  to  his  legal  rights, 

(2)  that  he   must   have  expended   some  money   or 
must  have  dfcne   some  act  (not    necessarily'' upon  the 
land  of  the  owner   of  the  legal  right)  on  the  faith  of 
his  mistaken  belief, 

(3)  that  the  possessor   of  the  legal  right  must  know 
of  the  existence  of  his  own  right  which  is  inconsistent 
with  the  right  claimed  by  the  trespasser, 

(4)  that  the  possessor  of  the  legal  right  «mst  know 
of  the  trespasser's  mistaken  belief  of  his  rights, 

(5)  that  the  possessor   of  the  legal  right  must  have 
encouraged  the  trespasser  in  his  expenditure  of  money 
or  in  the  other  acts  which  he  has  done,  either  directly 
or  by  abstaining  from    asserting  his    legal  rights. 

Where  all  these  elements  exist  there  is  fraud  of 
such  a  nature  as  will  entitle  the  Court  to  restrain  the 
possessor  of  the  legal  right  from  exercising  it,  but 
nothing  short  of  all  these  will  do.  A  JAI  NARAIN  v. 
JAPAR  BEG,  24  A.  L.  J.  355  1 01 7 

Evidence— Inadmissible  evidence,  whether  can  be 

admitted  by   consent  of    parties— Proof,  mode  of— 

Waiver. 

The  consent  of  Parties  cannot  make  a  piece  of 
evidence  relevant  and  admissible,  which  is  not  rele- 
vant and  admissible  under  the  provisions  of  the 
Evidence  Act. 

It  is  open,  however,  to  the  parties  to  waive  the 
benefit  of  those  provisions  of  the  Evidence  Act  which 
lay  down  the  mode  of  proof  of  a  document  or  state- 
ment, which,  if  proved,  would  be  relevant.  M  GOK- 

NABATHTTLA  THAMMATYA  V.  GONNABATHULA    OHINNATA,    22 

L.  W  752;  (1926)  M  W  N.  38;  A.  I.  R.  1926  Mad.  282 

594 

Practice— One  party   calling  opposite  party 

as  witness — Procedure,  whether  regular. 

It  is  an  objectionable  practice  for  one  party    to  call 

the  opposite  party  as  his  own  witness.    There  is  no 

objection  whatever  to  an  Advocate  seeking  to  prove 

his  case  out  of  the  mouth  of  the  opposite  party;  but 


Tol,  92] 


109? 


Evidence- conoid. 

if  he  puts  the  opposite  party  into  the  witness-box,  he 
takes  the  risk  of  making  statements  made  by  that 
witness  part  of  his  own  evidence. 

Although  in  a  proper  case  the  Court  may  be  satisfi- 
ed from  the  witness's  demeanour  that  he  is  hostile 
and  may  in  such  circumstances  even  allow  the  Ad- 
vocate to  cross-examine,  it  is  irregular  for  a  Court 
to  allow  one  party  to  call  the  other  aa  his  witness  on 
the  ground  that  it  is  desirable  to  elicit  some  facts 
from  the  said  witness  before  the  Court  hears  any  other 
evidence  in  the  suit  M  KOMMINENI  APPALASWAMY  v. 
KOMMINBNI  SIMHADRI  APPADU,  23  L  W  29,  A  I  R 
1926  Mad  384  844 

— —  Statements  of  persona  not  examined  a»  witness 

as  to  whereabouts  of  accused  at  time  of  occurrence, 
admissibihty  of. 

A  statement  made  by  a  person  who  is  not  examined 
AS  a  witness  that  the  accused  was  not  in  his  house  on 
the  night  on  which  the  offence  is  alleged  to  have 
been  committed  is  not  admissible  in  evidence  C 
KERMAT  MANDAL  v  EMPEROR,  42  C.  L.  J.  524,  27  Cr  L 
J  263,  A  I  R  1926  Gal  320  439 

Evidence  Act  (I  Of  1872),  S.  6— Res  gestse,  what 
is. 

What  a  person  states  at  the  time  of  an  occurrence 
in  respect  of  the  occurrence  itself  is  res  gestce,  under 
B.  6  of  the  Evidence  Act  A  statement,  however,  made 
at  the  time  of  an  occurrence  relating  to  a  previous 
occurrence  which  took  place  a  year  earlier  is  not  part 
of  the  ret  gestce  and  is  not  admissible  m  evidence. 
CKHIJIRUDDINV  EMPEROR,  42  C  L  J  504,  27  Cr.  L 
J.  266,  AIR  1926  Cal  139,  73  C.  372  442 
8.  8 — Statement  influencing  conduct  of  wit- 
ness, admistibility  of. 

A  statement  made  by  a  person,  who  is  not  examined 
as  a  witness,  is  not  admissible  under  s,  8  of  the  Evi- 
dence Act  as  having  affected  the  conduct  of  a  witness 
assuming  that  such  conduct  is  relevant.  C  KHIJIRUD- 
JUN  v  EMPEROR,  42  0  L  J  504,  27  Cr  L  J  266,  A  I 
R.  1926  Cal  139,  53  C  372  442 

S.  1 3,  scope  of — Assertion  of  right  made  in 

previous  suit,  admissibihty   of. 
The  language  of  s.  13  of  the  Evidence  Act  is   very 
wide  and  covers  the  assertion  of  a  right  in  a  previous 
suit  in  which  that  right  was  in    dispute     It  is  not 
necessary  that  the  right  should  have  been  successfully 
asserted,  the  mere  assertion  of  the  right  is    sufficient. 
C  RAM  KUMAR  DAS  v.  HARNARAINDAS  104 
8.  23—  Appeal   against     award  -Land    ac- 
quisition   proceedings— Price    of   acquired  property, 
determination     of— Private     offer  by    Government, 
whether  admissible 

Where  after  a  notification  has  been  issued  for 
acquisition  of  a  particular  property,  negotiations  are 
started  by  the  Government  with  the  owner  of  the 
property  on  the  question  of  price,  and  an  offer  pur- 
porting to  be  without  prejudice  is  made  to  him,  the 
evidence  of  the  offer  for  purposes  of  determining 
value  in  Court,  m  an  appeal  by  the  owner  against 
the  award  of  the  District  Judge,  is  not  admissible  as 
it  must  be  inferred  that  the  parties  agreed  together 
that  the  evidence  of  the  offer  should  not  be  given  m 
Court  LRANZOR  SINGH  v  SECRETARY  OP  STATE  FOR 
INDIA  319 

....  .  -,«••  88.  47,  45,  7 3 —Handwriting,  proof  of 
— Comparison  with  admitted  handwriting,  whether 
to  be  made  by  Jury. 

A  party  wishing  to  prove  that  a  document  is  m  the 
handwriting  of  a  particular  person  can  rely  upon 
•Xpert  evidence  under  s.  45  of  the  Evidence  Act,  or 


Evidence  Act-oontd. 

the  opinion  of  a  competent  witness  under  s.  47  of  the 
Act,  or  direct  comparison  of  the  document  with  proved 
or  admitted  documents  under  s.  73  of  the  Act. 

When  an  accused  person  puts  forward  in  his 
defence  a  letter  alleged  to  have  been  written  by  the 
prosecutor  and  the  latter  denies  the  fact,  and  the 
accused  requests  the  Court  to  compare  the  handwrit- 
ing of  the  letter  with  the  handwriting  of  documents 
admittedly  written  by  the  prosecutor,  the  Judge  must 
place  the  documents  before  the  Jury  and  ask  them  to 
make  the  comparison  and  decide  whether  the  hand- 
writings do  or  do  not  tally  C  KHIJIRUDDIN  v  EM- 
PEROR, 42  C  L  J  504,  27  Cr,  L.  J.  266,  AIR  1926 
Cal.  139,  53  C.  372  442 

3.  73.    See  EVIDENCE  ACT,  1872,  s  47     442 

• 8.  74 — Plaint,    whether  public    document-  - 

Certified  copy,  whether  admissible 

Neither  a  plaint  nor  a  written  statement  is  a  public 
document,  and  a  certified  copy  of  either  is  not  ad- 
missible m  evidence  PatTARKESHWAR  PRASAD  TEWARI 
v.  DEVENDRA  PRASAD  TEWARI,  3  Pat  L  R.  270,  7  P  L. 
T  267,  A.  I  R  1926  Pat  180  184 
8.  7 S— Proof  of  Act —Publication  in  Gazette 

of  India — Publication  by  Superintendent  of  Govern- 
ment Printing — Preference 

Under  s  78  of  the  Evidence  Act  the  publication  in 
the  Gazette  of  India  is  the  proper  method  of  proving 
an  Act  and  if  there  is  a  conflict  between  such  a 
publication  and  a  publication  by  the  Superintendent, 
Government  Printing,  Calcutta,  preference  must  be 
given  to  thatm  the  Gazette  o/  India  M  SUBRAMANIA 
IYER  v  SHUNMUQAM  CHETTIAR,  49  M  L  J  363,  22  L. 
W.538,  AIR  1926  Mad  65  566 
S,  86 — Statements  recorded  in  Native  State 

— Copies  forwarded  by  Resident— Certificate,  whether 

necessary 

The  meie  fact  that  copies  of  depositions  of  witnesses 
recorded  in  a  Court  in  a  Native  State  are  forwarded 
to  a  British  Court  by  the  Resident  m  due  course  is 
not  equivalent  to  the  certificate  referred  to  in  s  86  of 
the  Evidence  Act 

When  a  certificate  is  required  by  law  it  cannot  be 
dispensed  with  merely  because  it  can  be  obtained  at 
any  time  L  MDRLI  DAS  v  ACHUT  DAS,  5  L  105,  A  I 
R  1924  Lah  493  138 
S.  91  —  Unregistered  partition  deed—Terms  of 

partition  and  division  of  status,  proof  of—  Conduct 

of  parties 

That  there  was  a  division  of  status  can  be  proved 
even  if  the  deed  of  partition  is  inadmissible  in  evi- 
dence for  want  of  registration 

An  unregistered  document  may  be  used  to  deter- 
mine the  nature  of  the  possession  held  by  a  party 

Wheie  a  deed  of  partition  is  inadmissible  in  evi- 
dence for  want  of  registration,  the  terms  of  the  parti- 
tion cannot  be  proved  except  by  the  document  itself 
But  if  it  is  unnecessary  to  decide  the  terms  of  parti- 
tion, it  is  open  to  a  Court  to  infer  from  the  conduct 
and  dealings  of  the  parties  that  there  was  a  division 
of  status  M  RAMU  CHHTTY  v  PANCHAMMAL,  (1926)  M 
W  N  45,  A.I  R  1926  Mad  402  1028 

8.92.    See  CONTRACT  ACT,  1872,  s    132    667- 

-S.  92 — Contract  in  writing — Oral  evidence  if 

admissible 

Oral  proof  cannot  be  substituted  for  written  evidence 
of  any  contiact  which  the  parties  have  put  into  writ- 
ing C  DHANA  MOHAMMED  v  NASTULLA  MOLA,  A,  I.  R. 
1926  Cal  637  948 
8.  92— Suit  on  pro-note— Discharge,  proof  o/. 

Whera  in  answer  to  a  suit  on  a  pro-note,  the.  defend- 


ION 


INDIAN  CASES, 


£10*6 


Ivldtno*  A0t~conti 

ant  admits  execution  of  the  note  and  receipt  of  the 
money  but  pleads  that  the  amount  was  agreed  to  be 
treated  as  an  advance  towards  the  pay  and  bonus  of 
the  defendant  while  in  plaintiff's  service  and  that  as 
the  pay  and  bonus  had  fallen  due  before  date  of  suit, 
the  note  had  been  discharged,  proof  of  the  agree- 
ment is  not  excluded  by  s.  92  of  the  Evidence  Act, 
inasmuch  as,  in  the  circumstances,  it  is  merely  a 
method  of  payment  or  discharge  proveable  and  en- 
forceable as  such.  M  SATHEPPA  CHETTIAR  v.  McrxHUSAMr 
PILLAI,  A.  I.  R.  1926  Mad.  537  393 

8.  102  III,  (b).    See  MORTGAGE  SUIT       346 

8. 112.  See  MAHAUMADAN  LAW— MARRIAGE  82 

S.  114— Limitation    Act  (IX  of  1908),  s.  20 

— Payment  towards  decree— Payment  towards  inter- 
est—Denial of  payment— Presumption— Extension 
of  limitation. 

Ordinarily  one  does  not  split  up  the  principal  and  in- 
terest in  a  decree,  and,  where  a  judgment-debtor  makes 
a  payment  towards  the  decree  it  is  a  fair  presump- 
tion to  make  that  the  payment  was  made  towards 
both  principal  and  interest  for  purposes  of  s  20  of 
the  Limitation  Act  Each  case,  however,  must  be 
decided  on  its  own  facts. 

Where  a  judgment-debtor,  who  has  made  a  pay- 
ment towards  the  decree,  denies  the  fact  of  the  pay- 
ment it  may  be  presumed,  that  it  was  his  knowledge 
that  he  paid  off  principal  and  interest  which  drove 
him  to  falsehood.  M  HUGGUSETTY  SUBBAYYA  v.  IRUGULA- 
PATI  GANGAYYA,  22  L.  W.  827;  A.  I  R.  1926  Mad  183 

687 
—  8. 115,    See  HINDU  LAW— REVERSIONER      19 

— — • — —8.133 — Approver,  9tatement  of,  value  of — 
Confession  brought  about  by  pressure  of  relatives. 
It  is  not  safe  to  place  any  reliance  upon  the  testi- 
mony of  an  approver  who  was  prevailed  upon  by  his 
relatives,  who  were  members  of  a  faction  hostile  to 
the  accused,  to  make  a  confession  and  turn  King's 
evidence.  L  TEJA  SINGH  v  EMPEROR,  7  L  L.  J  631, 
27  Or  L  J.  283  461 
ft.  "\4S--Witness,  whether  can  be  cross-ex- 
amined with  referenci  to  previous  deposition. 
Under  s,  145  of  the  Evidence  Act  a  witness  may  be 
cross-examined  a$  to  previous  statement  made  by 
him  in  writing  without  such  writing  being  shown 
to  him  or  being  proved  Only  if  it  is  intended  to 
contradict  him  by  the  writing  his  attention  must, 
before  the  writing  can  be  proved,  be  called  to  those 
parts  of  it  which  are  to  be  used  for  the  purpose  of 
contradicting  him  M  RAMAKKA  v.  NEGASAM  47  M  800, 
48  M  L  J  89;  A,  I  R  1925  Mad  145  792 
8.  154 — Cross-examination  of  party's  own 
witness,  effect  of — Permission,  when  to  be  granted. 
When  a  witness  who  has  been  called  by  the  pro- 
secution is  permitted  to  be  cross-examined  on  behalf 
of  the  prosecution  under  the  provisions  of  s  154  of 
the  Evidence  Act,  the  result  of  that  course  being  per- 
mitted is  to  discredit  that  witness  altogether  and  not 
merely  to  get  rid  of  a  part  of  his  testimony,  so  that 
the  accused  is  deprived  of  the  benefit  of  any  statement 
which  the  witness  may  have  made  in  his  favour. 
For  this  reason  the  law  has  enacted  that  a  party 
desiring  to  cross-examine  its  own  witness  has  to  take 
the  permission  of  the  Court,  implying  thereby  that 
there  is  a  discretion  in  the  Court  whether  it  would 
permit  the  witness  to  be  cross-examined  or  not.  That 
discretion  must  always  be  exercised  with  caution  by 
the  Court  before  which  the  matter  comes  up  for  con- 
sideration. 0  KHIJIRU&DIN  v,  EMPBROB,  42  0,  L,  J. 


Evidence  Act— conoid. 

504;  27  0.  L,  J.  266;  A.  I.  R,  1«0  Cal.  159;  53  0-  5TZ 

442 
8.155  (4)— Character  of  proa«ctttriie,  viht~ 

ther  relevant. 

In  a  case  of  rape  evidence  as  regards  the  general 
immoral  character  of  the  woman  is  relevant  under 
s  155  (4)  of  the  Evidence  Act  C  KERAMAT  MANDAL  v. 
EMPHHOR,  42  0.  L  J  524,  27  Or.  L,  J.  263;  A.  L  R.  1926 
Cal  320  439 
88. 159, 160— Dying  declaration,  proof  of. 

A  dying  declaration,  if  certified  in  Court,  as  having- 
been  recorded  correctly,  is  admissible  in  proof  of 
its  own  contents  and  it  is  unnecessary  that  the  person 
recording  it  should  repeat  exactly  in  his  own  words 
what  the  deceased  had  said.  L  PARTAP  SINGH  v. 
EMPEROR,  27  Cr.  L  J.  215,  7  L.  01  167 

8,165.    See  OR  P  0.,  1898,  s,  162  453 

S.    1 67 — Improper   admission   of   evidence, 

effect  of. 

Under  s  167  of  the  Evidence  Act  the  improper 
admission  of  evidence  is  not  of  itself  a  ground  for  a 
new  trial  or  reversal  of  a  decision  in  a  case,  if  it 
appears  to  the  Court  that  independently  of  that  evi- 
dence there  was  sufficient  evidence  to  justify  the 
decision  Pat  BADRI  CHOUDHRY  v.  EMPEROR,  6  P  L. 
T  620,  AIR  1926  Pat.  20;  27  Cr  L.  J.  362  874 

Execution  of  decree. 

See  ALSO  (i)  0.  P  C ,  1908,   SB.  36  TO  74,  O.t  XXI, 

SCH  in. 

(ii)  LIMITATION  ACT,  1908,  SCH.  1+  ARTS.  181, 

182. 

See  C.  P.  C  ,  1908,  s  11,  EXPL.  IV  377 

SeeC  P.  0,1908,  8  115  298 

See  C.  P  C  ,  1908,  0  XXI,  R  100  326 

See  LIMITATION  ACT,  1908,  SCH.  I,  ART.  182  (5)     770 

Agreement  not  to   execute   decree,  effect  of. 

See  C  P.  C  ,  1908,  0.  XXI,  R  2  677 

Assignment  of  decree—Application  6t/  assignee 

for  execution  of  decree,  dismissal  of — Re-assignment 
in  favour  of  decree- holder,  effect  of — Assignment 
by  decree-holder  in  favour  of  third  person — Second 
assignee,  whether  entitled  to  execute  decree— Res 
judioata 

An  assignee  of  a  decree  made  an  application  for 
being  substituted  in  place  of  the  decree-holder  and 
for  execution  of  the  decree.  The  application  was 
dismissed  as  the  assignee  produced  no  evidence  to 
prove  the  assignment  A  subsequent  application  for 
execution  made  by  the  assignee  was  dismissed  on  the 
ground  of  res  judicata  Thereafter  the  assignee  trans- 
ferred his  rights  under  the  assignment  back  to  the 
decree-holder,  who  then  assigned  the  decree  to  a1  third 
person  and  the  latter  made  an  application  for 
execution  of  the  decree: 

Held,  that  b}y  the  re-assignment  of  the  decree  in 
favour  of  the  decree-holder,  the  latter  obtained  no 
better  right  to  execute  the  decree  than  the  assignee 
himself  possessed  and  that  consequently  the  second 
assignee  was  in  no  better  position  than  the  original 
assignee  or  the  decree-holder  and  was  not  entitled  to 
execute  the  decree.  N  PANDUBANG  v.  SAMBHASHBO,  21 
N  L.  R  159;  A.  I  R.  1926  Nag.  200  47 

Attachment— Omission  of,  effect  of. 

An  attachment  is  a  measure  resorted  to  for  the 
protection  of  the  decree  holder  and  the  purchaser 
against  intermediate  alienation  and  is  only  a  step  to 
be  taken  by  the  Executing  Court  in  bringing  to  sale 
the  properties  of  a  judgment-debtor.  If  this  «tep 
is  omitted,  the  omission  amounts  only  to  an  irregula- 
rity and  the  eak  can  bt  set  aside  only  if.  it  has 


Tol,  92] 
Execution  of  door*d~<o*ufcd, 


GENERAL  INDEX, 


1099 


resulted  in  substantial  load,  The  absence  of  attach- 
ment does  not  affect  the  jurisdiction  of  the  Executing 
Court  to  sell  the  property  M  SIJBKAMANIA  AIYAR  v. 
KRISHNA  IYER,  (1925)  M.  W.  N.  887,  A  I,  R,  1926  Mad. 
211  833 

— •— —  Death  of  judgment-debtor  before  sale— Legal 
representatives  not  impleaded — Sale,  whetkir  nullity. 
Where   subsequent  to   an   order  lor    sale   of   the 
judgment-debtor's  property  in  execution  of  a  decree, 
the  judgment-debtor  dies,  an  execution,  sale  conducted 
without  nis  legal  representatives   being  brought    on 
record  as  parties  is  a  nullity     M  KARIPINENI  RAJAYYA 
v.  KALPATAPU  ANNAPURNAMMA,  22  L.  W.    828,    AIR 
1926  Mad,  138  308 

-— Decree,  whether  can  be  questioned. 

Parties  in  an  execution  case  cannot  call  in  question 
the  validity  of  a  decree  as  actually  framed  or  impugn 
the  jurisdiction  of  the  Court  that  framed  it  Nor  is  it 
open  to  a  party  in  an  execution  case  to  go  behind 
the  plain  and  obvious  meaning  of  a  decree  O  SHANKAB 
BAKSH  v.  TALUQDJEI,  3  0  W  N  375  722 

Execution  petition,  recording  of  —  Application 

to  revive — Limitation  Act  (IX  of  1908),  Sch.  I,  Arts 
281,  182. 

There  is  no  provision  of  law  by  which  an  Executing 
Court  can  lodge  an  execution  petition  or  record  it,  or 
strike  it  off  for  what  is  called  the  statistical  purposes, 
and  it  cannot  dismiss  the  application  for  the  reason 
that    it   is   long  pending     The  Executing  Court   is 
bound  to  follow  the  procedure  laid   down  in  the  Code 
and  an  execution  petition  which  is  ordered  to  be  re- 
corded must  be  considered  as  pending  and  the  right  to 
apply   for  its  continuance  accrues  from  day  to  day 
M  PATTAMAYYA  v   PATTAYYA,  50  M  L    J.  215,  (1926)  M, 
W.  N  262;  A  I  R  1926  Mad  453  782 
Hindu    joint     family — Attachment   of     co- 
parcener's  interest    before    judgment — Death  after 
decree  and  before  execution — Right  of  survivorship  if 
defeated — Decree,  construction  of — Charge,  creation 

of 

An  attachment  before  judgment  of  the  interest  of  a 
co-parcener  in  a  Hindu  joint  family  property,  followed 
by  a  decree,  will,  m  the  event  of  his  death  subsequent 
to  the  decree  and  before  execution,  have  the  effect  of 
precluding  the  accrual  of  title  by  survivorship  as 
against  the  attaching  creditor,  m  the  same  way  as 
an  attachment  after  decree,  so  that  the  surviving  co- 
parceners can  take  the  property  only  subject  to  the 
claims  of  the  attaching  creditor 

Where  a  compromise  decree  stated  that  the  plaint- 
iffs  would  recover  the  amount  "from  the  defendants 
and  also  by  the  sale  of  the  properties  now  under  attach- 
ment before    judgment  by  the  Court  without  having 
any  necessity  for  re-attachment,  and  from  the  defend- 
ants'   other  properties,  and  that  the  attachment  before 
judgment  would  continue  in  force  until  the  whole 
amount  was  paid  according  to  the  compromise  decree. 
Held,  that  the  decree  did  not  constitute  a  charge  on 
the  properties  and  did  not  confer  on  the  decree-holders 
any  higher  rights  than  those  of  money-decree-holders 
who  had  effected  attachment  of  those  properties  for 
executing  their  decrees     M  SANKARALINGA    MUDALIAR 
v.  OFFICIAL  REOEIVRR,  49  M.  L  J  610,   (1925)  M.  W  N 
832;  A  I.  R.  1926  Mad  72  504 
Mortgage-decree — Salt   held      without     com- 
pliance  with     condition  precedent,    validity    of— 
Auction-purchaser,    position   of — Sale  set   aside— 
Purchase-money,  whether  can  be  directed  to  be  re-paid 
—Inherent  power  o*  Court~~Civil    Procedure  Code 


Execution  of  decree-wntd, 

Where  an  auction-sale  takes  place  in  the  exercise 
of  a  jurisdiction  vested  in  a  Court,  a  third  party 
purchaser  cannot  be  bound  by  the  result  of  any 
further  litigation  relating  to  the  decree.  Where, 
however,  the  terms  of  a  decree  itself  do  not  justify 
a  sale  of  the  property,  the  sale  cannot  hold  good 
merely  because  the  Court  had  pecuniary  and  terri- 
torial jurisdiction  over  the  property,  even  if  the 
auction-purchaser  is  a  lona  fide  purchaser,  in  the 
sense  that  he  is  a  third  party  purchaser  who  had  no 
notice  of  the  facts  of  the  case 

Where  a  mortgage-decree  lays  down  a  condition 
precedent  which  must  be  complied  with  before  the 
mortgaged  property  can  be  sold,  and  the  property  is 
sold  without  such  compliance,  the  sale  cannot  be 
allowed  to  stand 

Where  certain  property  which  has  been  sold  in 
execution  of  a  decree  obtained  on  a  prior  mortgage 
is  subsequently  sold  in  execution  of  a  decree  obtained 
on  a  puisne  mortgage  and  the  subsequent  sale  is  set 
aside  at  the  instance  of  the  purchaser  at  the  pre- 
vious sale  in  a  proceeding  to  which  the  judgment- 
debtor,  the  decree-holder,  the  previous  purchaser 
and  the  subsequent  purchaser  are  all  parties,  the 
Court  has  inherent  power  to  direct  the  decree-holder 
to  pay  back  to  the  auction-purchaser  the  amount  paid 
by  the  latter  as  the  Drice  of  the  property.  A  ATMA 
RAMV.  NANAK  CHAND,  A.  I  R,  1926  All.  274  571 

Mortgage-decree— Sale  of  properties,  order  of 

— Mortgagee,  right  of 

A  mortgagee  decree-holder  is  entitled  to  bring  the 
mortgaged  properties  to  sale  m  execution  of  his  decree 
m  any  order  he  chooses  whatever  his  motives  may  be. 
It  is  immaterial  to  his  rights  that  the  mortgagor  had 
since  the  mortgage  sold  one  of  the  mortgaged  pro- 
perties to  some  third  person  M  TADEPALLI  SUBBA  RAO 
v  MOTAMURI  LAKSHMINARAYANA,  22  L  W.  389,  A.  I  R. 
1925  Mad  1214  593 

Partition    decree— Partition  not  directed  by 

decree,  whether  can  be  carried     out— Jurisdiction— 
Consent  of  parties 

In  executing  a  decree  for  partition,  the  Executing 
Court  has  no  power  to  effect  a  partition  which  has  not 
been  ordered  by  the  decree  and  for  which  there  is  no 
properly  framed  application  before  the  Court     In  such 
a  matter  no  consent    of    parties    can  give    the  Court 
jurisdiction   M  SUBBIAH  GOUNDAN  v  SONNIMALIA  GOUN- 
DAN,  23  L  W.  87  400 
Proclamation  of  sale — Application  of  decree- 
holder   relating    to  property  to  be  proclaimed  for 
sale,  decision    of — Appeal,    absence  of — Judgment- 
debtor •,  whether  bound. 

An  application  by  a  decree-holder  in  respect  of  the 
property  which  should  be  proclaimed  for  sale  in 
execution  of  the  decree  must  be  decided  by  the  Exe- 
cution Court,  and  the  order  of  the  Execution  Court 
deciding  such  an  application,  if  not  objected  to  by 
way  of  appeal,  must  be  held  to  be  binding  on  the 
judgment-debtor  during  the  subsequent  stages  of  the 
execution  proceeding  0  SITAPAT  RAM  v.  MOHAMMAD 
ASOHAR,  A.  I.  R,  1926  Oudh  193  29 
_  Property  misdescnbed  in  warrant  of  attach- 
ment—Auction-sale,  validity  of—Knowledge  of 
parties 

A  mere  misdescription  in  a  warrant  of  attachment 
of  property  does  not  invalidate  the  auction  sale  and 
is  merely  an  irregularity  if  the  parties  knew  what 
had  been  attached  and  had  been  actually  sold.  N 
TIKABAM  v,  NABAYAN,  A.  L  K.  192(1  Nag*  246  44 


1100 


IKDUK  CASES. 


[1920 


Execution  of  decree-conoid, 

— ' - — —  Step-in-aid  of  execution — Limitation  Act 
(IX  of  1908),  Sch,  J,  An.  182  (5)  •  Decree  against 
trust— Appointment  of  fresh  trustee— Execution 
application  against  trustee  on  record — Bona  fide 
petition—Burden  of  proof, 

The  removal  under  a  decree  of  a  trustee  from  office 
comes  anto  operation  not  from  the  date  of  the  decree 
but  from  the  date  on  which  the  trustee  is  removed 
from  actual  possession.  So  long  as  he  is  not  removed 
and  remains  in  possession  of  the  property,  he  is  the 
proper  judgment-debtor  to  be  on  record  for  purposes 
of  execution  of  a  decree  against  the  trust. 

A  bona  fide  application  to  execute  a  decree  against 
the  judgment-debtor  on  record  is  in  accordance  with 
law  even  though  it  is  subsequently  discovered  that 
at  the  time  of  the  application  he  had  ceased  to  be 
the  proper  person  to  be  pi  oceeded  against. 

The  burden  of  proving  that  the  judgment-debtor 
named  in  the  decree  has  ceased  to  be  the  real  judg- 
ment-debtor for  purposes  of  execution  and  that  the 
application  impleading  the  person  on  record  is  not 
bona  fide  is  on  the  person  who  sets  up  that  such 
application  is  not  m  accordance  with  law.  M  TRUSTEES, 

PARAKKAT  DfiVASWOM  V     VfiNKATACHALAM     VADHAYAR,    23 

L.  W.  22,  50  M.  L.  J.  153;  A.  I  R.  1926  Mad.  321    709 
Surety.    See  0.  P   0.,  1908,  s  145  259 

EX  parte  decree,  suit  to  set  aside—  Fraud— Failure 

to  file  affidavit  of  documents  —Decree  against  party 

not  in  default,  legality  of 

In  a  suit  filed  by  M  against  T,  the  latter  filed  a 
written  statement  and  a  counter-claim  not  only 
against  M  but  also  against  three  other  persons  in- 
cluding D.  M  failed  to  obey  an  order  made  in  the  suit 
to  file  his 'affidavit  of  documents,  whereupon  T  applied 
for  and  obtained  an  order  dismissing  Si's  suit  and 
decreeing  Ts  counter-claim  ex  parte  not  only  against 
M  but  also  against  the  other  parties  including  D  wh& 
were  not  in  default.  D  brought  a  suit  to  set  aside  the 
ex  parte  decree  as  against  him 

Held,  (1)  that  T  was  guilty  of  fraud  on  the  Court  in 
applying  for  and  obtaining  an  tx  parte  decree  against 
D  and  the  other  persons  who  were  not  m  default, 

(2)  that  so  far  as  these  persons  were  concerned  the 
ex  parte   decree  was  a  nullity, 

(3)  that  it    was    open  to  D  to  sue  to  set  aside  the 
ex  parte  decree  and  his  suit  must  succeed    B  DEVJI 
PADAMSBY  v.  THOMMADRA  ERIKALAPPA,   27    Bom.  L  R. 
149i;  A.  LR.  1926  Bom.  63  555 

^ -  order  without  jurisdiction.  See  Rus  JUDICATA 

845 
Foreign  Law  —Question  of  fact  See  CONTRACT  ACT, 

1872,8  23  112 

Fraud* 

See  0.  P.  0.,  1903,  O.  XXI,  n.  63  81 0 

See  Ex  PARTB  DECREE  t  555 
Fraud  and  mistake — Decree,  setting  aside  oi — 

Fraud,  nature  of —Mature  of  error, 

In  a  suit  to  obtain  the  reversal,  on  the  ground  of 
fraud,  of  a  judgment  given  in  a  former  case,  it  is  not 
sufficient  for  the  plaintiff  to  prove  constructive  fraud 
but  he  must  prove  actual  positive  fraud,  a  meditated 
and  intentional  contrivance  to  keep  the  parties  and 
the  Court  in  ignorance  of  the  real  facts  of  the  case  and 
the  obtaining  of  that  decree  by  that  contrivance. 

A-  suit  to  rectify  the  error  or  mistake  upon  which 
a  decree  is  founded  lies  when  the  error  or  mistake  lias 
been  made  in  drawing  up  of  the  decree,  but  not 
when  the  mistake  is  not  in  the  judgment  or  decree 
but  in  a  document  forming  part  of  the  evidence  on 


Fraud— conoid. 

which  the  judgment  is  based,  L  BIBHBN  SINGH  y, 
WASAWA  SINGH,  A.  1.  R.  1926  Lah  177  317 
_ —  Particulars —Ex  parte  decree,  suit  to  set 

aside — Fraud,  proof  of. 

When  fraud  is  charged  against  a  party,  the  person 
pleading  the  fraud  must  set  forth  the  particulars  of 
the  fraud  which  he  alleges, 

An  ex  parte  decree  cannot  be  re-opened  except  on 
the  ground  of  fraud  as  an  extrinsic  collateral  fact 
vitiating  the  proceedings  in  which  the  decree  was 
obtained.  It  is  not  sufficient  to  allege  that  it  was  ob- 
tained on  a  false  claim. 

Before  an  ex  parte  decree  can  be  vacated  on  the 
ground  of  fraud,  it  must  be  established  that  the  decree 
was  the  result  of  fraud  directed  against  the  person  who 
seeks  to  set  it  aside.  L  PUNJAB  COMMERCIAL  SYNDICATE 
v  PUNJAB  CO-OPERATIVH  BAN'K  LTD  ,  6  L  512,  A.  I  R. 
1026  Lah  96  322 

General  Clauses  Act  (Xof  1897),  s,  16,  See 

C,  P.  C  ,  1908,  O  XL,  R.  1  940 

Gift  and  direction  .as  to  payment,  distinct— Vesting 

whether  postponed.    See  C.  P   C  ,  190*,  a  60      1 021 

Government  of  India  Act,  1915  (5  &  6  Geo.  V, 
C,  61),  8.  49.  See  MADRAS  DISTRICT  MUNICIPALITIES 
ACT,  1920,s  13  ETC  918 

Guardians  and    Wards  Act     (VII!   of  1890), 

SS,  25,  47—Civil  Procedure  Code  (Act  V  of  1908\ 
0  XLIII,  r.  1  (d)— Ex  parte  order  under  s.  25— 
Application   to  cancel    order,    refusal    of —Appeal 
against  refusal  order,  maintainability  of 
The  appellant  was  ordered  under   s  25,   Guardians 
and  Wards  Act,   to  produce  a   minor  child    m   Court 
with  a  view  to  its  being  restored  to  the  custody  of  its 
guardian     The  order  was  passed  ex  parte,  the  appel- 
lant being  absent.   On  the  next  date  of  the  hearing  of 
the  case,  the  minor  was  not    produced,  but  the  Court 
was  asked  to    cancel  its  previous  order     The  Court 
refused  to  do  so,  and  the    appellant  appealed  against 
this  later  order. 

Held,  that  no  attempt  having  been  made  to  set  aside 
the  previous  ordei  as  an  ex  parte  order,  no  appeal  lay 
from  the  later  order  as  it  was  m  reality  a  consequential 
order  following  on  the  earlier  order.  N  AKABAI  v 
NAHAYAN,  A.  I  R  1926  Nag  201  36 

SS.  31  (3)  (d),  48— -Order  fixing  sum  to  be 

spent  on  marriage — Discretion  of  Court— Appeal — 
Revision — Interference  by  High  Court. 
The  question  as  to  what  sum  the  guardian  of  a 
minor  should  be  allowed  to  spend  on  the  marriage  of 
the  minor  ia  primarily  a  matter  for  the  discretion  of 
the  District  Judge  An  order  fixing  such  sum  is  made 
under  s  31  (3)  (d)  of  the  Guardians  and  Wards  Act 
and  is  not  open  to  appeal.  The  High  Court  will  not, 
in  such  a  case,  interfere  in  revision  under  s.  48  of  the 
Act  A  In  the.  matter  of  DURGA  BAI,  24  A.  L.  J.  310; 
A  I  R  1926  All.  301  482 

SS.  40,    41   (3)— Guardian,    discharge    of, 

application  for— Investigation  into  accounts— Court t 
power  of. 

On  an  application  by  a  person  to  be  discharged  from 
guardianship  under  s.  40  of  the  Guardians  and  Wards 
Act,  the  Court  has  not  only  to  order  under  s.  41  (3) 
delivery  of  acomnts  and  property  in  his  possession, 
but  has  power  to  direct  an  investigation  into  accounts 
before  ordering  discharge  M  RAMA  RAO  v.  RANGASWAMT 
RAO,  A.  I.  R.  1926  Mad.  419  98 

8.   41 — Minor,     death      of—Application  by 

person  claiming  as  heir  for  delivery,  of    property, 
maintainability    of —Dispute  as  to  succession. 
Where   a    minor  in  respect  of  whose  property  a 


Vol.  92]  GENERAL  INDEX. 

Guardians  and  Wards  Act— concld.  Hindu  Law-contd, 


1101 


guardian  had  been  appointed  under  the  Guardians  and 
Wards  Act  dies  and  there  is  a  dispute  or  even  the 
likelihood  of  a  dispute  relating  to  the  succession  to 
his  estate  the  Court  has  no  powers  undei  s.  41  of  the 
Guardians  and  Wards  Act  to  determine  the  succession 
and  thereupon  make  a  ay  orders  for  granting  delivery 
of  possession  of  the  minor's  property  or  for  rendering 
of  accounts  by  the  guardian 

A  Court  acting  under  the  Guardians  and  Wards 
Act  la  functus  officio  when  the  minor  dies.  Any 
disputes  or  rights  with  regard  to  the  propeity  of  the 
minor  should  thereafter  be  litigated  in  the  ordinal  y 
Tribunals,  though  in  simple  cases  where  no  contest  can 
arise,  the  Court  may  have  the  power  under  s  41  of 
the  Act  to  make  simple  orders  for  delivery  of 
property  M  TULSIDASS  GOVTNJFE  v  MADHAVADASS 
LALAJEB,  22  L  W  642,  (1926)  M  W  N.  68,  A  I  fe 
1926  Mad  148  570 
SS.  41,  45— Death  of  minor — Guardian, 

whether  cease's—  Court's  power  to  call  for  accounts 

—Refusal  to  give  accounts— Fine—Progressive   fine, 

levy  of 

On  the  death  of  a  ward  the  powers  of  the  guardian 
as  such  do  cease,  f>nd  the  Court  may  propeily  require 
him  to  deliver  in  any  accounts  in  his  possession  or 
control 

Yv'hen  a  ward  dies,  the  Court  should  generally  diicct 
the  guai  dian  to  deliver  the  property  into  Court  or  to 
deliver  property  to  some  person  producing  an  heir- 
ship  certiiicate  In  very  rare  cases  the  latter  precaution 
might  be  dispensed  with,  but  in  that  case  the  Court 
would  otherwise  guarantee  the  interests  of  possible 
claimants.  The  possible  dangers,  therefore,  from  the 
misuse  of  the  Court's  powers  under  &  41  (3)  of  the 
Guardians  and  Wards  Act  in  the  case  of  a  deceased 
minor  do  not  seem  to  bo  very  serious  and  from 
their  existence  it  should  not  be  deduced  that  the  Legis- 
lature intended  that  on  the  ward  dying,  the  guardian 
should  be  completely  beyond  control  of  the  Court  in 
his  dealings  with  the  estate  of  the  deceased  into 
possession  of  which  he  has  come  under  the  order  of  the 
Court. 

Where  the  guardian  refuses  to  give  full  accounts  a 
fine  of  Rs  25  inflicted  on  him  under  s.  45,  Guardians 
and  Wards  Act,  is  not  inappropriate 

An  order  for  accumulative  and  progressive  fine  can, 
however,  be  levied  under  s.  45,  Guardians  and  Wards 
Act,  only  in  the  case  of  recusancy,  which  is  something 
more  than  mere  disobedience,  and  if  it  is  intended  to  use 
those  powers,  as  a  general  rule,  it  is  better  to  fix  some 
date  on  which  the  guardian  is  to  comply  with  the  order 
of  the  Court  or  demonstrate  why  he  is  unable  to  do  so 
and  that  order  may  properly  contain  the  penalty  that 
if  the  Court's  order  is  not  complied  with,  fine  will  be 
inflicted  on  the  principle  of  progression  as  laid  down 
in  the  section.  3  FATBHCHAND  v  PARPATI  BAT,  18  8  L. 
R  86;  A  I  R.  1925  Bind  269  196 
s,  48.  See  GUARLIAN'S  AND  WARDS  ACT,  1890, 

8.  31  (3)  (d)  482 

Hindu         Law— Adoption  —Agreement    between 

adoptive  and   natural    fathers   reserving  right    of 

making  Will  to  adoptive  father,  legality  of 
An  agreement  between  the  adoptive  father  and  the 
natural  father  of  the  minor  about  to  be  adopted,  made 
at  the  time  of  adoption,  whereby  full  powers  are 
reserved  to  the  adoptive  father  to  dispose  of  the  family 
properties  by  Will,  is  not  valid  according  to  the  Hindu 
Law  and  is  not  binding  on  the  adopted  son.  B 
PARVATIBAI  TRIMBAKRAO  v,  VISHVANATH  KHANDBBAO 
PAST*,  27  Bom,  L,  R,  1509;  A,  L  R.  1996  Bom,  90  4 


Aliyasantana      family—Maintenance-.- 

Junior  members,  right  of,  to  separate  maintenance — 

Disputes  between  members,  whether  sufficient  ground 

for  award  of  separate  maintenance 

The  junior  members  of  an  Ahyasantana  family 
are  not  entitled  to  separate  maintenance  on  the 
ground  of  mere  inconvenience  caused  by  want  of 
harmony  between  the  ejman  and  the  junior  members. 

In  the  absence  of  any  evidence  that  the  disputes 
between  the  members  are  of  such  a  nature  as  to  make 
it  impossible  or  dangerous  for  the  members  to  con- 
tinue to  live  together  in  the  same  house  and  take 
meals  together,  a  Court  should  not  award  separate 
maintenance  to  junior  members  on  the  ground  that 
the  members  are  not  moving  well  together  and  that 
a  joint  mess  would  be  extremely  inconvenient 

It  is  not  incumbent  on  the  ejman  of  an  Aliya- 
santana family  to  distribute  any  spare  money  he  has 
in  his  pocket  amongst  all  the  members  of  the  family 
or  among  some  of  them 

When  some  junior  members  of 'the  family  reside 
away  from  the  family  for  a  portion  of  the  year  with 
their  husbands  or  wives,  as  the  case  might  be,  they 
aic  not  entitled  to  claim  from  the  ejman  a  sum  equiva- 
lent to  their  maintenance  during  the  period  of 
absence  M  CIIANDAYYA  HEDGE  v  KAVERI  HEGADTHI  49 
M  L  J  727,  A  I  R  1926  Mad  189  390 
Debt,  antecedent — Mortgage-debt  of  father*** 

Personal  liability  barred — Sons,  whether  bound 

Any  prior  mortgage-debt  due  by  a  Hindu  father  is 
valid  and  binding  on  the  sons  as  an  antecedent  debt 
whether  the  personal  liability  of  the  father  is  or  is  not 
barred  M  IMANI  SATYANARAYANA  v  DBVARAKOMU 
HATYANARAYANAMIBFE,  50  M  L  J  144,  (1926)  M  W 
N  7,  A  IK  1926  Mad  428  86 
Commercial  debts  of  father — Pious 

obligation  of  son — Text  of  Gautama,  whether  obsolete, 

A  debt  incurred  by  a  father  in  the  course  of  a 
hai  dware  trade  earned  on  by  him,  is  a  commercial 
debt  and  under  the  Hindu  Law  the  son  is  under  a 
pious  obligation  to  discharge  the  same 

Per  Coutts  Ti  otter,  C  J —The  text  of  Gautama 
which  describes  a  commercial  debt  as  vyavaharika 
must  now  be  held  to  have  been  declared  as  obsolete. 

The  particular  instances  of  vyavahanka  debts 
given  in  the  Smrittes  must  be  treated  as  a  mere 
expression  of  opinion  on  the  part  of  the  authors  as  to 
what  classes  of  debts  would  fall  under  the  general 
words.  A  modern  Court  is,  therefore,  free  in  inter* 
preting  the  general  term  "vyavahanka"  to  consider 
the  particular  instances  given  as  obsolete  under  tha 
conditions  of  the  present  day  M  NIDAVOLU  ATCHUTAW 
t\  RATNAJI,  23  L  W  193,  50  M  L  J  20b,  (1926)  M  W4 
N  258;  49  M.  211,  A  I  R  1926  Mad  323  977 
. Females—  Nature  of  estate  taken, 

There  is  no  distinction  as  to  the  nature  of  the  estate 
taken  between  property  inherited  by  a  woman  from  a 
male  and  property  inherited  from  a  female.  In  both 
the  cases  she  takes  not  an  absolute  estate  but  only  * 
qualified  one.  M  AYISWARYANANDAJI  SAHEB  v.  SIWAJ! 
RAJA  SAHEB,  49  M.  L.  J.  568,  A.  I,  R.  1926  Mad.  84,  40 
M  116  928 

Guardianship  and    minority— Be  facto 

guardian,   alienation   by,  validity     of —Burden  of 

proof — Adequacy  of  price — Court,  duty  o/» 

Under  the  Hindu  Law  an  alienation  of  a  minor** 

property  by  a  de  facto  guardian  may  be  valid,  if  it  ia 

otherwise    justified.    Where,    however,   a    de  factQ 

guardian  alienates  the  minor's  property  in   the  pre* 

cetice  of  a  legal  guardian,  the  Court  must  be 


lM)IAN  OASfeS. 


[1926 


Hindu  Law— contd. 


that  the  legal  guardian  refused  to  act  for  the  minor 
and  to  protect  his  interest,  and  that  unless  the  de  facto 
guardian  acted  for  the  minor  irreparable  loss  to  the 
minor  would  have  been  the  result  of  the  inaction  of 
the  legal  guardian. 

It  is  not  for  the  person  who  challenges  a  sale  on 
behalf  of  a  minor  to  show  that  the  price  was  in- 
adequate, it  is  for  the  guardian  to  show  that  he  made 
all  possible  endeavours  to  sell  the  property  at  a 
proper  price  and  that  the  price  which  he  obtained 
was  the  best  possible  procurable  one 

In  a  case  where  the  interest  of  the  minor  is  con- 
cerned, the  case  ought  not  to  be  decided  simply  on 
the  questions  raised  by  the  parties,  but  the  Court  has 
to  satisfy  itself,  in  the  interest  of  the  minor,  that  the 
sale  was  a  proper  sale  and  the  Court  must  insist  upon 
the  purchaser  to  satisfy  it  that  circumstances  justify- 
ing a  sale  of  the  minor 's  property  did  leally  exist. 
C  BAIKUNTHA  NATH  KAR  v.  ADHAR  CHANDRA  PAIN,  A  I. 
R.  1926  Cal.  653  727 
Guardianship  and  minority  -De  facto 

guardian,    alienation    by>    validity   of — Necessity — 

Benefit  to  estate— Ratification  by  minor  on  attaining 

majority,  effect  of. 

Under  the  Hindu  Law,  the  powers  of  a  de  facto 
guardian  of  a  minor  are  the  same  as  those  of  a  de 
jure  guardian  and  an  alienation  of  the  minor's  pro- 
perty by  ft  de  facto  guardian  is  equally  binding  oft  the 
minor  u  it  is  supported  by  necessity  or  benefit  to  the 
estate. 

An  alienation  by  a  de  facto  guardian  not  for  a 
binding  purpose  is  not  per  se  void  but  only  voidable 
and  becomes  Valid  where  it  is  ratified  by  the  minor  on 
attaining  majority 

Per  Viswanatha  Sastri,  J".-- There  is  nothing  in  the 
Hindu  Law  which  limits  the  guardianship  of  a  minor 
to  the  father,  mother  and  failing  them  the  King.  A 
maternal  uncle  in  Hindu  society  in  Southern  India  is 
a  fit  and  proper  person  to  act  as  guardian  of  a  minor. 
M  VBMULAPALLI  SEETHARAMAMMA  v  MAGANTI  APPIAH,  23 
L  W.  285;  (1926)  M,  W.  N.  238,  A.  I.  K.  1926  Mad.  457 

827 
. Impartible  estate.  See  HINDD  LAW— 

RELIGIOUS  ENDOWMENT  928 

*- •  Inheritance- -Illegitimate  son  of  sudra, 

right  of,  to  inherit  to  father's  collaterals 

Under  the  Hindu  Law  an  illegitimate  son  of  a  sudra 
is  not  an  heir  to  his  putative  father's  collateral  rela- 
tions and  can  have  no  right  to  succeed  to  the  *tn- 
dhanam  of  his  father's  widows  who  were  married  in 
an  approved  form.  M  AYISWARYANANDAJI  SAHEB  v. 
SIWAJI  RAJA  SAHBB,  49  M.  L.  J  568;  A.  I  R.  1926  Mad. 
84,  49  M.  116  928 

' Joint  family.  See  PROVINCIAL  INSOLVENCY 

ACT,  1920,  s,  2  (d)  309 

— . _ *.  Alienation  by  father  to  pay  of 

encumbrance  on  property  acquired    by    pre-emption, 

validity  of 

A  mortgage  of  family  property  executed  by  a  Hindu 
lather  in  order  to  pay  on  an  encumbrance  on  property 
acquired  by  him  under  a  pre-emption  decree,  is  not 
binding  on  the  sons  unless  it  is  shown  that  it  was  for 
the  benefit  of  the  family  that  the  encumbrance  should 
be  paid  off  by  hypothecation  of  the  family  property.  A, 
BHAGWATI  SINGH  v.  OUROHABAN  DUBE,  L.  K.  5  A.  647 
QiT.;A.LR.  1925  All.  96  332 

^^ ..>  Alienation  by  manager**- Failure  to 

describe  himself  as   auch— Interest  conveyed,  < 

Where  a  person  purchases  property  from  a  de 
otto  manager  of  a  joint  Hindu  family  and  there  fe 


Hindu  Law— contd. 

nothing  in  the  document  to  show  that  the  manager 
conveyed  only  his  share  or  that  he  reserved  the  share 
of  anybody  from  being  conveyed,  both  the  parties  to 
the  conveyance  must  be  presumed  to  have  intended 
that  the  interest  of  the  whole  family  should  be  con- 
veyed by  it 

The  mere  fact  that  the  vendor  did  not  describe 
himself  as  managing  member  is  not  a  circumstance 
which  should  be  taken  as  militating  against  such 
presumption  M  MULUGU  OHENGAYYA  v,  ARDVELU 
DEVASANAMBAGARU,  50  M.  L.  J  145:  23  L.  W  390,  (1926) 
M  W  N  289;  A.  I.  R  1926  Mad.  406  720 
Joint  family — Alienation  by  manager — 

Necessity— Benefit  to  family. 

The  manager  of  a  joint  Hindu  family  has  power  to 
sell  or  mortgage  "on  reasonable  commercial  terms" 
joint  family  property,  so  as  to  bind  the  interests  of 
adult  as  well  as  minor  co-parceners  in  the  property, 
provided  that  in  the  case  of  minor  members  the  sale 
or  mortgage  is  made  for  legal  necessity  including 
debts  incurred  for  family  business  or  for  benefit  of  the 
family, 

The  term  "necessity"  must  not  be  strictly  construed. 
Benefit  to  the  family  may  under  certain  circumstances 
mean  a  necessity  for  the  transaction  S  KATILAL  v. 
RUGHUNATH  MULJI  378 
Alienation  by  managing  member  for 

proper  purposes— Recital  that    properties   were  self- 

acquired,  effect  of 

The  managing  member  of  a  joint  Hindu  family 
executed  a  mortgage  of  certain  family  properties  for 
purposes  binding  on  the  family  but  recited  in  the 
mortgage-deed  that  the  mortgaged  properties  were 
his  absolute  properties.  In  a  suit  on  the  mortgage 

Held,  that  since  the  mortgage  purported  to  be  of 
the  entire  interest  in  the  properties  and  the  mort- 
gagor had  the  legal  capacity  to  execute  a  mortgage  of 
the  entire  interest  binding  on  the  family,  the  interest 
mortgaged  was  of  the  entirety  which  the  executant 
was  capable  of  conveying  and  not  merely  of  his  share 
in  the  properties  and  the  recital  that  the  executant 
was  the  owner  must  be  treated  as  surplusage.  M 
UNNAMALAI  AMMAL  v.  ABBOY  CHETTY.  23  L.  W,  16$-  50 
M.  L.J,  172  524 

— — — Alienation — Manager's  powers— 

Benefit  of  estate — Necessity. 

The  manager  of  a  joint  Hindu  family  has  an 
implied  authority  to  do  whatever  is  best  for  all 
concerned,  the  test  being  whether  the  transaction  is 
one  into  which  a  prudent  owner  will  enter  in  order 
to  benefit  the  estate. 

The  term  necessity  not  only  covers  a  case  of  actual 
pressure  on  an  estate  or  a  danger  to  be  averted  by 
piompt  discharge  of  liabilities  but  an  act  benefiting 
the  estate  as  well.  L  EOSHAN  LAL  v.  BUSTOMJI.  A.  I.  R. 
1926  Lah.  249  669 
Alienation — Mortgage — High  rate  of 

interest—Legal  necessity— Burden  of  proof. 

The  burden  of  proving  that  the  rate  of  interest 
provided  for  in  a  mortgage-deed  executed  by  * 
member  of  a  joint  Hindu  family  is  justified  by  legal 
necessity  lies  on  the  mortgagee.  O  KIDAR  NATH  v. 
BHIKHAM  SINGH  579 
— Alienation—Mortgage  by  co-parcener 

—Foreclosure     decree— Birth    of  son  to  mortgagor. 

effect  of,  *  *    ' 

Where  a  Hindu  co-parcener  has  mortgaged  his 
share  in  the  family  property  the  birth  of  a  son  to  him 
after  a  final  foreclosure  decree  has  been  passed 
tgftinst  Urn  at  the  suit  of  the  mortgagee  does  not 


GENERAL  INDEX. 


1103 


Hindu  Law—contd. 

operate  retrospectively  and  cannot  reduce  the  share 

of  the  co-parcener,  the  whole  of  winch  would  pass  to 

the  mortgagee-decree-holder    N  NARAYAN  v.  DHUDABAI. 

21  N.  L  K  38,  A  I.  R.  1U25  Nag.  299  663 

—  Joint    family-  Alienation  —  Mortgage     by 

manager— Execution  sale— Suit  to  set  aside  sale— 

Legal  necessity. 

The  proposition  that  where  the  property  of  a  Hindu 
joint  family  has  passed  out  of  the  family  in  execution 
of  a  decree  and  rights  of  a  third  party  have  come  in, 
the  sale  cannot  be  set  aside  unless  it  is  established  that 
the  debt  was  tainted  with  illegality  or  immorality, 
applies  only  to  cases  where  the  persons  who  challenge 
the  transaction  are  sons  or  grandsons  of  the  transferor 
It  is  only  when  the  transfer  has  been  made  by  a 
father  or  grandfather  that  the  question  of  the  debt 
having  been  tainted  with  immorality  or  illegality  can 
arise  No  such  consideration  arises  when  the  transfer 
haa  been  made  by  an  uncle  and  a  mere  manager  ot  a 
joint  Hindu  family  In  such  cases  the  transfer,  unless 
it  is  supported  by  legal  necessity,  cannot  be  upheld 
A  NANAK  CHAND  v  KAM  PBASAD,  A  I  K  1926  All,  250 

316 

Attachment      before     judgment- 
Decree,    See  EXECUTION  OF  DHCREE  504 

• — • Chajge,  deed  of— Excessive  interest-  - 

Admission  of  propriety  of  interest 
A  co-parcener  of  a  Hindu  joint  family  cannot  be 
allowed  to  impugn  the  rate  of  mteie&t  m  any  deed  to 
which  he  himself  is  a  party,  or  where  by  his  state- 
ments or  conduct,  he  must  be  deemed  to  have  ad- 
mitted the  propriety  of  the  rate 

Where  a  co-parcener  executes  a  deed  of  further 
charge,  in  which  he  recites  earlier  deeds  of  fuither 
charge  executed  by  other  co-parceners,  he  should  be 
inferred  to  have  admitted  their  validity  m  every 
respect,  and  cannot  be  allowed  subsequently  to  set  up 
that  the  earlier  deeds  were  for  an  excessive  rate  of 
interest.  O  CHANDRIKA  FRASAD  v  NAZIR  HUSAIN,  A  I 
R.  1926  Oudh  306  681 

Compromise   by  father     See  C    P. 

0,1908,8.110  479 
Widow   and  step-son — Widow   man- 
aging estate — Alienation  by  widow — Benefit  of  estate 
—^Alienation,  whether  binding  on  step-son— Female 
member ,  whether  can  be  manager 
Per  Curiam  —A    sale  by   a  Hindu  widow  who    was 
managing  the  estate  of  her  minor  son  and  step-son  of 
a  part  of  the   immoveable   property  belonging   to  the 
estate  for  necessary  purposes  is  valid  and  binding  on 
the  step- son. 

Per  Halhfax,  A.  J.  C  —Any  adult  member  of  a 
joint  Hindu  family  whether  male  or  female  is  entitled 
to  be  a  manager  ot  such  family.  N  KESHEO  v  JAGAN- 
NATH,  A,  I.  R.  1926  Nag.  81,  22  N  L  K.  5  121 
Maintenance.  See  HINDU  LAW— ALITASAN- 

TANA  FAMILY  390 

Partition  SUlt~Me$n«   profits,  when  can  be 

claimed. 

There  is  no  absolute  rule  that  m  a  partition  suit, 
ft  claim  for  mosne  profits  is  necessarily  unsustainable. 
Where  the  plaintiff  proves  that  he  was  excluded  from 
the  property  he  is  entitled  to  claim  mesne  profits  for 
the  period  during  which  he  has  been  excluded.  N 
NILKANTHV.  GAJAJUN,  A.  I  R.  1926  Nag.  248  364 
i by  purchaser  -Procedure 

The  purchaser  of  an  unascertained  share  of  joint 
family  property  must  bring  a  suit  for  partition  in 
which  the  whole  of  the  joint  family  property  should 
be  included  and  allj  necessary  parties  joined*  In 


Hindu  Law—contd. 

suit  of  that  nature,  the  Court  in  making  the  partition 
would  endeavour  to  give  effect  to  the  alienation  and 
so  to  marshal  the  family  property  among  the  co- 
parceners as  to  allot  that  portion  of  the  family  pro- 
perty or  so  much  of  it  as  may  be  just  to  the  purchaser. 
N  NARAYAN  v  DHUDABAI,  21  N  L  R  38,  A  I.  R.  1925 
Nag  299  663 
RellglOUS  endowment— Succession—  Pro- 
perty held  by  yati — Disciples ;  rights  of. 
A  bairagi  faqir,  or  a  yati,  may  hold  private  pro- 
perty. 

On  the  death  of  a  yati  his  preceptor,  and  in  the 
absence  of  the  preceptor,  the  disciples  of  the  yati 
would  succeed  to  any  private  property  left  by  him. 

OPRABHUDAYAL  V   LALTADAS,A    I.  R    1926  Oudll  293 

764 

Succession    to    trusteeship  -Usage — 

Management  by  single  individual — Confiscation  by 
State  and  re-grant,  effect  of,  on  i  ule  of  succession 
The  Rajahs  of  Tanjore  had  time  after  tune  endow- 
ed and  founded  certain  devasthanams  and  other 
chanties  These  had  continued  in  the  possession  and 
management  of  the  Rajah  for  the  time  being  and  till 
the  death  of  the  last  ruler,  the  office  was  always  held 
by  a  single  individual  After  the  death  of  the  last 
ruler  in  1853,  when  the  Raj  itself  was  seized  by  the 
P<ast  India  Company  as  an  act  of  State,  the  Pagodas 
and  the  dcvasthanams  were  also  taken  possession  of 
and  managed  by  the  Government  In  1863,  K,  the 
senior  widow  of  the  late  Rajah,  applied  for  and  got 
possession  of  the  devasthanams  and  other  trust  pro- 
perties as  the  head  of  the  family,  but  the  course  of 
succession  was  not  indicated  m  the  Government's 
older  of  restoration  On  her  death,  the  trust  estate 
was  managed  by  the  widow  who  in  turn  became  the 
senior  Ram  and  so  on  until  the  last  of  the  Ranis 
died  in  1912  Disputes  then  arose  between  the 
illegitimate  sons  of  the  late  Rajah  and  the  sons  of  an 
adopted  son  as  to  succession  both  as  to  the  private 
estate  of  the  Rajah  and  as  to  the  management  of  the 
trust.  The  piivate  estate  was  directed  to  be  parti- 
tioned On  the  question  of  the  rule  of  succession  to 
the  trust  estate 

Held,  that  since  the  founders  of  the  institutions 
intended  that  their  successors  who  occupied  the  Raj 
should  continue  to  have  the  sole  management  of  the 
temples  and  pagodas  and  the  endowments  attached  to 
them  and  since  the  Government  by  restoring  the  pro-* 
perties  to  the  Rani  as  "head  of  the  family  for  the  time 
being'1  indicated  their  intention  that  they  should  con- 
tinue to  be  managed  by  a  sole  trustee,  the  trusteeship 
was  not  liable  to  be  divided  and  the  elder  grandson 
was  solely  entitled  to  the  trusteeship  of  the  dtvas* 
thanams  and  the  charities. 

Per  Kumaraswami  Sastri,  J  — In  cases  of  succession 
to  religious  institutions,  the  main  question  to  be  con- 
sidered is  what  is  the  usage  of  the  institutions,  and 
where  from  the  date  of  the  foundation  of  the  charities 
up  to  the  date  of  the  suit,  the  trust  was  managed  by 
a  single  individual  who  was  the  head  of  the  family 
not  in  possession  of  any  partible  property,  the  office 
must  be  treated  as  impartible  and  not  liable  to  be 
held  by  more  than  one  person  at  a  time 

In  cases  of  confiscation  and  re-grant  of  property 
which  is  impartible,  the  law  is  that  in  the  absence  of 
anything  in  the  re-grant,  the  property  which  is  re- 
granted  is  subject  to  the  old  incident  of  impartibility. 
M  AYISWARYANANDAJI  SAHEB  v.  SIWAJI  RAJA  SAHEB,  49 
M.  L.  J.  568;  A  I.  R.  1996  Mad.  84;  49  M.  116  928 
ROYOfilonor,  trantftr  ty,  during  Ji/«time  e 


1104 
Hindu  Law— contd, 


INDIAN  CASES, 


[1096 


Hindu  Law— «onld. 


wid<?w>  validity* of— -Reveraioner  accepting  transfer 
from  other  reversioner— Estoppel— Evidence  Act  (I  of 
1872),  8.  115. 

A  transfer  made  by  a  next  reversioner  during  the 
lifetime  of  a  Hindu  widow  who  is  in  possession  of 
her  deceased  husband's  estate  is  inoperative  under 
the  Hindu  Law,  as  during  the  widow's  lifetime  a 
reversioner  has  no  interest  in  the  estate  capable  of 
transfer  but  merely  an  expectancy. 

Where,  therefore,  a  reversioner  of  a  deceased  Hindu 
accepts  a  mortgage  of  certain  property  forming  part 
of  the  estate  of  the  deceased  from  some  other  rever- 
sioners, he  is  not  estopped  from  subsequently  con- 
tending that  he  has  a  share  in  the  property  which 
was  mortgaged  to  him,  inasmuch  as  the  mortgage  is  a 
void  transaction  and  no  estoppel  can  arise  out  of 
such  a  transaction.  O  DEO  KALI  v  KANCHOOR  Bux,  A. 
I.  R.  1926  Oudh  253;  13  O  L.  J.  208  1 9 

Strldhan.    See  HINDU  LAW—WIDOW     928 

,  inheritance  to.    See  HINDU  LAW — 

INHERITANCE  928 

.  .  .  WidOW— AccreJions—  Limited  title  of  husband 
—Acquisition  of  fuller  title  -Admission  by  widow— 
Reversioner 8  y  whether  bound — Decree  on  admission^ 
effect  of. 

Accretions  made  by  a  Hindu  widow  to  her  husband's 
estate  partake  of  the  nature  of  that  estate.  It  is  of 
little  moment  whether  this  rule  of  law  is  one  of  Hindu 
Law  or  is  based  on  s  90  of  the  Trusts  Act  The  rule 
has  been  ascribed  to  the  doctrine  of  graft. 

Where  a  Hindu  widow  in  possession  of  her  husband's 
property,  in  which  the  latter  had  an  estate  of  a 
limited  nature,  obtains  a  fuller  estate  in  the  property, 
the  fuller  title  is  an  accretion  to  her  estate  as  a  widow 
and  cannot  be  regarded  as  her  stndhan. 

There  is  a  presumption  in  law  that  a  person  takes 
possession  under  title  rather  than  as  a  trespasser  and, 
on  the  death  of  her  husband,  a  Hindu  widow  taking 
possession  of  her  husband's  property  must  be  held  to 
do  so  as  a  Hindu  widow. 

A  Hindu  widow  cannot  make  an  admission  in 
derogation  of  the  rights  of  the  re  versioners  which  has 
or  may  have  the  effect  of  destroying  the  estate  of  the 
reversioners.  This  is  governed  by  the  same  rule  as 
applies  to  wrongful  alienation.  A  decree  of  a  Court 
based  (without  contest)  on  such  an  admission  ia  as 
Toid  or  voidable  as  the  admission.  0  RAM  SHANKAB 
SitfaH  v.  LAL  BAHADUR  SINGH,  3  O.  W.  N.  267,  A.  I  R 
1926  Oudh  277;  13  0.  L.  J.  216  637 

Acquired     property,    whether    stri- 

dhanam  or  accretion  to  estate. 
A  Hi  du  widow  has  an  absolute  right  of  disposal 
over  the  income  of  the  property  which  she  inherits 
from,  her  husband.  She  can  either  spend  the  same  or 
accumulate  it  for  her  own  benefit.  In  cases  where 
she  purchases  properties  or  invests  her  savings  and 
indicates  by  her  conduct  an  intention  that  the  pro- 
perties purchased  out  of  her  savings  should  form  part 
of  her  husband's  estate,  such  savings  should  follow 
the  same  rules  as  regards  devolution  to  her  husband's 
estate,  and  should  be  treated  as  accretions  to  the 
estate.  Where  she  does  not  dcMw^ahe  has  absolute 
powers  of  disposal  over  auch  property  and  can  sell  or 
give  the  same  to  anybody  she  pleases  without  any 
fight  of  the  reveraionera  to  question  her  alienations. 
Where  the  question  is  one  of  intention  to  be  deduced 
or  inferred  from  her  conduct,  the  presumption  is  that 
she  intends  to  keep  the  property  for  her  own  absolute 
benefit  and  to  have  absolute  powers  of  disposal  over 
jt,  Where,  however,  a  widow  ia  act  ia  poiaewioa  of 


her  husband's  estate,  there  is  no  presumption  that  any 
of  the  properties  which  she  gets  are  to  be  treated  as 
accretions  to  her  husband's  estate.  On  her  death  such 
properties  would  follow  the  same  course  of  succession 
as  her  stridhanam  properties. 

Per  Spencer,  J  — It  is  a  question  of  fact  in  each  case 
whether  a  widow  has  dealt  with  the  income  of  her 
husband's  property  in  such  a  manner  as  to  make  it 
an  accretion  to  the  corpus.  M  AYISWARYANANDAJI  SAHBB 
v.  SIWAJI  RAJA  SAHKB,  49  M,  L.  J,  568,  A.  I.  R.  1926 
Mad.  84;  49  M.  116  928 
Widow — Alie nation — Suit  to  challenge' aliena- 
tion brought  after  lapse  of  many  years,  effect  of — 

Necessity— Bom  fide  enquiry  « 

In  a  suit  by  the  reversioners  of  a  deceased  Hindu 
to  challenge  an  alienation  made  by  the  widow^oFthe 
deceased,  brought  after  the  lapse  of  many  years  from 
the  date  of  the  alienation,  it  is  incumbent  on  the 
Court,  in  weighing  the  evidence  on  either  side,  to 
remember  the  difficulty  under  which  the  respective 
parties  labour,  particularly  as  regards  the  ascertain- 
ment and  production  of  evidence  on  the  matters  dealt 
with  in  the  case. 

If  an  alienee  from  a  Hindu  widow  before  embarking 
on  the  transaction  has  made  reasonable  and  bona  fide 
enquiry  and  has  satisfied  himself  to  the  best  of  his 
knowledge  and  belief  that  legal  necessity  exists,  the 
real  existence  of  such  legal  necessity  in  point  of  fact 
is  not  a  condition  precedent  to  his  success  in  a  suit 
brought  by  the  reversioners  of  the  widow's  deceased 
husband  to  challenge  the  alienation.  N  SHANKAR  v. 
PANDURANG,  9  N.  L.  J.  22  646 
Maintenance — Sale  of  property  ~~ 

Future  maintenance. 

A  Hindu  widow  is  entitled  to  maintain  herself  by 
selling  the  property  inherited  from  her  husband  if 
there  is  no  other  means  available  for  her  maintenance. 
She  is  not  bound  to  starve  herself  in  order  to  benefit 
the  reversioners. 

Under  the  Hindu  Law  a  widow  can  alienate  her 
husband's  property  for  paying  of!  the  debts  incurred 
for  her  own  maintenance.  There  is  no  hard  and  fast 
rule  that  she  cannot  do  it  for  future  maintenance. 
Each  case  would  depend  upon  its  circumstances. 

In  a  case  where  there  was  no  other  property' But  a 
house  inherited  by  a  widow-and  not  capable  of  yielding 
any  appreciable  income,  and  the  widow  sold  it  for 
Rs  600  half  of  which  went  towards  liquidating  a  debt 
incurred  for  maintenance  and  the  other  half  was  kept 
by  her  for  maintaining  herself  with : 

Held,  that  the  sale  was  binding  in  its  entirety  upon 
the  reversioner.  M  KUTHALINQA  MUDALIAR  v.  SHAN- 
MUOA  MUDALUR,  50  M.  L.  J.  234;  21  L.  W.  373;  (1926^ 
M.  W.  N  274  989 
Manager  of  joint  family.  See  HINDU 

LAW— JOINT  FAMILY  121 

— _M—  Of  divided  memier — Funeral  expenses* 

Under  the  Hindu  Law,  where  a  widow  of  a  divided 
member  of  a  Hindu  family  dies,  without  having  any 
self-acquired  property  of  her  husband,  the  relations 
responsible  for  her  maintenance,  and  not  necessarily 
those  who  perform  the  ceremony,  are  liable  to  pay  for 
her  funeral  expenses,  in  like  proportion  as  the  main- 
tenance itself,  M  SHIVA  AITHALA  v.  KANGAPPAYA  ArnutA4 
49  M.  L.  J.  719;  A.  I.  R.  1926  Mad.  333  523 

1  •• Partition-"  Relinquishment  of 

turviwrskip— Intention. 

There  is  no  legal  obstacle  to  prevent  one  of  two 
Hindu  co-widows  from  so  far  releasing  her  right  o( 
survivorship  as  to  preclude  her  from  recovering 


Vol.  8ft] 


INDEX, 


1105 


Hindu  Law—contd, 

an  alienee,  after  the  other  co-widow's  death,  property 
given  by  way  of  partition  to  the  latter  and  alienated 
by  her.  The  partition  may  be  by  document  or  oral 
It  is  a  question  of  intention  in  each  case,  to  be 
gathered  from  the  deed  of  partition,  if  any,-  and  the 
surrounding  circumstances,  whether  the  widows 
retained  or  renounced  their  rights  of  survivorship 

It  has  to  be  proved  by  clear  evidence  that  the 
widows  were  conscious  of  the  right  of  survivorship 
possessed  by  them,  and  that  they  intended  to  give  up 
such  right.  M  KALIAN i  ANNI  v.  THIRUMALAYAPPA 
MUDALIAR  355 

WldOW,  position  of —Decree  obtained  against 

widow,  whether  binding  on  reversioners— Adverse 
possession  against  widow,  whether  adverse  to  rever- 
sioners. 

A  Hindu  widow  in  possession  of  the  estate  of  her 
deceased  husband  represents  the  estate  in  suits 
brought  by  her  or  against  her  for  possession  of  the 
estate  or  any  part  of  it,  and  she  and  the  reversioners 
are  equally  bound  by  any  final  decree  which  a  Court 
makes  in  such  a  suit,  provided  thai  the  suit  was  fought 
out  according  to  law  and  was  not  collusive  01  fiaudu- 
Icnt 

Semble  — A  Hindu  widow  fully  represents  the  estate 
of  her  deceased  husband  and  adveise  possession  which 
"bars  her,  bars  the  heirs  after  her  P  C  VAITHIALINGA 
MUDALIAR  v  SRIEAKOATH  A\vi,  A  I  U  1925  P  0  240, 
L  R  6  A  (P  C  )  1G9,  49  M  L  J  769,  42  C  L  J  563, 
48  M  8S3,  300  W  N  313,  28  Bom  L  R  173,  (1926) 
M  W  N  11,  52  I  A  322  85 

v     brothei — Legal    representative 

SeeC.  P,  0,1908,8  47  575 

Will,  construction    of — Devise     of    estate  to 

daughters  and  thereafter  to  their  children — Per- 
petuities, rule  of 

A  Hindu  testator  gave  the  following  direction  in  his 
Will  with  regard  to  the  disposal  of  his  propeity  — "I 
give,  devise  and  bequeath  all  my  estate  and  effects 
immoveable  and  moveable  unto  my  Trustees  upon 
Trust  that  my  Trustees  shall  sell,  call  in  and  convert 
into  money  the  same  or  such  part  thereof  as  shall  not 
consist  of  money  and  shall  with  and  out  of  the  pro- 
ceeds of  such  sale,  calling  in  and  conversion  and  with 
and  out  of  my  ready  money  pay  my  funeral  and  testa- 
mentary expenses  and  debtb  and  shall  stand  possessed 
of  the  residue  of  such  proceeds  upon  Trust  to  set 
apart  thereout  and  invest  in  promissory  notes  of  the 
Government  of  India  such  a  sum  or  sums  of  money 
as  when  so  invested  as  afoiesaid  will  produce  by  the 
income  thereof  a  monthly  sum  of  rupees  one  hundred 
and  to  pay  such  income  monthly  to  my  wife  C.  Andal- 
ammal  during  her  life  and  from  and  after  her  decease 
to  stand  possessed  of  the  said  sum  and  the  invest- 
ments for  the  time  being  representing  the  same  upon 
the  Trusts  hereinafter  declared  concerning  the  residue 
of  my  estate  And  as  to  the  residue  of  my  estate,  I 
direct  that  my  trustees  shall  at  their  discretion  invest 
the  same  in  any  of  the  modes  of  investment  in  which 
trustees  are  by  law  authorised  to  invest  trust  funds  and 
shall  stand  possessed  of  the  said  residuary  trust  monies 
and  the  investments  for  the  time  being  representing 
same  (hereinafter  called  "the  residuary  trust  funds"), 
in  Trust  to  apportion  the  residuary  trust  funds  into 
AS  many  equal  parts  or  shares  as  there  may  be 
daughters  of  mine  living  at  the  time  of  my  decease  or 
Who  having  pre-deceaaed  me  shall  have  left  issue,  her 
or  them  and  me  surviving  and  to  pay  the  income  of 
each  of  such  equal  parts  of  shards  to  my  said 
daughter*  respectively  during  their  respective  Uvei, 


Hindu  Law— conoid, 

And  from  and  after  the  decease  o£  each  of  my  said 
daughters  to  stand  possessed  of  the  share  of  the 
residuary  trust  funds  so  appropriated  as  aforesaid  to 
such  daughter  upon  Trust  for  all  the  childien  of  such 
daughter  who  shall  attain  the  age  of  twenty-one  years 
in  equal  shares  and  if  there  shall  be  only  one  such 
child  the  whole  to  be  in  trust  for  that  one  child  and 
in  the  event  of  any  of  my  said  daughters  dying  with- 
out leaving  lawful  issue  her  or  them  surviving,  I 
direct  that  my  trustees  shall  stand  possessed  of  th* 
share  or  shares  so  appropriated  to  her  or  them  as 
aforesaid  upon  Trust  for  all  the  children  of  the  other 
or  others  of  my  said  daughteis  who  shall  attain  the 
age  of  twenty-one  years  as  tenants-m-common  in 
equal  shares  per  stirpes  Provided  always  and  I 
hereby  declare  that  if  any  daughter  of  mine  shall  die 
in  my  lifetime  leaving  lawful  issue  at  the  time  of  my 
death  such  issue  as  shall  attain  the  age  of  twenty-one 
years  shall  take  and  if  more  than  one,  as  tenants-m- 
common  in  equal  ahaies  per  stirpes  the  share  which 
would  have  been  so  appropriated  as  aforeasid  to  such 
daughter  of  mine  and  her  issue  if  she  had  survived  me" 
Held,  (1)  that  on  a  proper  construction  of  the  Will 
the  three  daughters  took  only  for  their  lives  , 

(2)  that  inasmuch  as  the    bequest  in  favour  of  the 
daughters'  children,  tested  as  at  the  testatoi  's  death 
made  delay  in  vesting  the  estate  beyond  the  lifetime 
of  the  daughters    and  the  minority   of  some  of  their 
children  possible,  the  bequest  in  fa\our  of  the  children 
was    inoperative  having   regard  to  the   provisions  of 
g   101  read  with  s  102  of  the  Succession  Act , 

(3)  that,  therefore,  at    the  termination  of  the  life- 
estate  cf  the  daughters  of  the  testator,  the  estate  would 
devolve  upon  the  next  heirs  as  upon  an  intestacy    P.  C, 

SOUNDARA  lUjANV    NATARAJAN,  A    1    R     1 925  P     C    244' 

L  R  6  A  (P  0  )  180,  23  A  L  J  1010;  48  M  906,  49  M, 
L  J  836,430  L  J  70.  28  Bom  L  R  204,  (1926;  M. 
W  N  22,  30  C  W  N  434,  52  I  A  310  289 

Hire-purchase  agreement.    See  CONSTRUCTION  OF 

DOCUMENT  191 

Identification.  See  Cn  P,  0 , 189^,  a  374  890 
Evidence  of  officer  who  held  parade  for 

identification,  admissibility  of 

If  the  witnesses  themselves  do  not  repeat  in  Court, 
that  they  had  picked  out  certain  men  at  an  identifica- 
tion paiade,  the  evidence  of  officers  who  had  conduct- 
ed the  parade,  that  the  witnesses  had  picked  out  the 
men,  is  admissible 

Where  ifc  is  shown  that  at  an  identification  parade, 
witnesses  picked  out  certain  men  as  having  taken  part 
m  a  not,  but  did  not  state  to  the  officer  who  conducted 
the  parade  what  part  each  man  had  taken  in  the  riot* 
the  officer's  evidence  that  he  had  told  the  witnesses  to 
pick  out  the  persons  present  in  the  riot,  i  *  quite 
sufficient  and  it  n  not  necessary  that  he  should  have 
examined  the  witnesses  aa  to  the  part  played  by  each 
individual  L  PARTAP  SINGH  v  EMPEROR,  27  Cr  L  J. 
215,  7  L  91,  A  I  K  1926  Lah  310  167 

Inam,  grant— Grant  "to  representatives  and  assign*" 

— Death   of    grantee  before    date  of  grant — Grant, 

whether  enures  to  heirs  of  grantee — hoard's  Standing 

Order  52  (2). 

An  mam  title-deed  issued  by  Government  ran  aa 
follows* — "The  mam  is  now  confirmed  to  you,  your 
representatives  and  assigns,  to  hold  or  dispose  of  aa 
you  or  they  think  proper"  'J  he  grantee  was  dead  on 
the  date  of  grant,  and  the  question  was  whether  the 
grant  enured  for  the  benefit  of  the  heirs  of  the 
grantee : 

,  tbat  having  regard  to  the  Board's   Standnj 


1106 


INDIAN  CASES. 


[1926 


Inanv-eoncld, 

Order  52  (2),  the  words  "representatives  and  assigns" 
should  not  be  interpreted  as  meie  words  of  limitation 
but  as  effective  to  secure  the  grant  to  the  lieiia  of 
the  deceased  grantee  M  NARASIMHAM  v  CHENDRAMMA, 
49  M.  L.  J.  5i7,  '22  L.  W.  6u9,  A.  I.  K.  1926  Mad.  1M 

321 
—  -  ---  ,  service—  Enfranchisement—  Grant  to  member 

of  joint  family-  Grant    to  Hindu  widow  and  other 

persons—  Estate    conferred  on  widow  —  Absolute    or 

limited  estate, 

The  enfranchisement  of  a  service  inam  does  not 
enure  to  the  benefit  of  the  joint  family  of  the  holder 
but  only  of  the  holder  himself 

When  Government  makes  a  grant  to  persons  com- 
prising a  widow  and  her  relations,  there  is  no  pre- 
sumption that  only  a  widow's  estate  is  intended  m 
case  of  the  former 

Where  a  service  mam  is  enfranchised  in  the  name 
of  a  Hindu  widow  and  a  number  of  other  persona  as 
an  '  estate  m  frce-holdMt  and  as  "absolute  property11, 
the  widow  takes  the  property  absolutely  and  not 
merely  with  the  limited  powers  of  a  Hindu  widow 
M  VENK^TASUBBA  RAO  v.  AUINAKAYANA  KAO,  22  L  W. 
631.80M  L  J  4C,  A,  I  K  1^26  Mad  227  472 

Income  tax  —  Income  from  permanently  settled 

jalkar.  See  BENGAL  REG  ULATIOV,  1793  338 

Resident  of  Native  State,  whether  habit  to 
on  pro  jits  made  outside  British  India 


The  profits  of  a  bubiness  are  earned  where  the  actual 
excess  over  the  expenditure  incurred  is  earned 

A  resident  of  a  Native  State  cannot  be  assessed  to 
income-tax  m  British  India  on  profits  made  in  anothei 
Native  State,  unless  it  can  be  proved  that  those  profits 
arose  or  were  received  m  British  India  B  HAJI 
KAHMATULLA  v  SECRETARY  OF  STATE  FOR  INDIA,  27  bom. 
L  R.  1507,  A.  I.  R.  1926  Bom.  50  351 

Income  TEX  Act  (II  Of  1886),  S.  39—  Declaration 
that  assessment  is  ultra  vires,  suit  for,  maintain- 
ability of. 

The  provisions  of  s  39  of  the  Income  Tax  Act  of 
1886  do  not  operate  to  bar  a  suit  m  which  it  is 
claimed  that  an  assessment  IB  ultra  -vires  B  HAJI 

RAttMATULLAH  v.  SECRETARY  OF  STATE  FOR  INDIA,  27  Bom. 

L.  K-  I5U7;  A.  L  K.  1U26  Bom.  50  351 

Income     Tax  Act    (XI     Of  1922),  S,    3—  Selling 

association  of  several    firms—Association,    whether 

separate  firm  liable    to  assessment. 

Where  certain  ice-manufacturmg  firms  by  means  of 
an  agreement  formed  a  Selling  Association  to  prevent 
underselling  by  the  constituent  firms  and  fixed  a 
certain  rate  to  b&  paid  by  the  Association  for  ice 
manufactured  by  the  constituent  firms 

Held,  that  the  Association  was  clearly  a  separate 
firm  within  the  meaning  of  s  3  of  the  Income  Tax  Act 
and  was  liable  to  assessment  of  income  tax  O  COM- 
MISSIONER OF  INCOME  TAX  v.  L.UCKNOW  ICE  ASSOCIATION, 
A.  L  K.  1926  Oudh  191  257 

—  •  -  S.  9—  Loss  incurred  by  standing  surety—  Loss 

in  business. 

A  loss  incurred  by  a  firm  on  account  of  standing 
surety  for  another  firm,  is  not  loss  incurred  in  con* 
nection  with  their  business,  and  cannot  be  deducted 
in  assessing  the  Income-tax.  L  In  the  matter  of  IBHAB 
DASDHARAM  CHAND,A.I  K,  1926  Lah  168  249 

-  8.  10  (2),  (VI),  (vll),  <lx)-~  Obsolete  machwery 

—  Motor-car  rendered    useless  by    accident  —  tfelief* 
under  sub-section*,  whether  alternative  w  cumulative 

—  -Motor-car,   purchase  of,  solely  for  use  of  parts  in 
fritting    cars-expenditure    whether    of    capital 


Income  Tax  Act— 1922— eontd, 

nature    or    incurred  for    purposes  of    business— 

Deductions,  right  of  assessee  to. 

'Obsolete  machinery'  under  the  Income  Tax  Act 
means  machinery  which  though  it  is  able  to  peiform 
its  function,  has  become  in  common  parlance  out  of 
date  and  performs  its  function  so  indifferently  or  at 
euch  a  cost  that  a  prudent  man  instead  of  continuing 
to  use  such  machinery  would  discard  it  and  mstal 
more  labour-saving  machines.  A  new  car  which  is 
wholly  useless  for  its  purposes  because  it  was  broken 
to  pieces  m  an  accident  is  not  "  obsolete  machine  " 
under  the  Act  and  the  owner  is  not  entitled  to  claim 
a  deduction,  therefore,  under  s  10,  (2)  (vn)  of  the  Act. 

The  various  reliefs  by  way  of  deductions  specified  in 
s  10  of  the  Income  Tax  Act  arc  not  alternative  and  ex- 
clusive, but  must  be  ticated  as  disjunctive  and  cumula- 
tive and  if  any  deduction  claimed  falls  within  the  ex- 
pi  ess  words  of  any  one  of  the  sub-sections,  it  is  not  open 
to  Government  to  sa)'  that  it  is  really  covered  by 
the  general  provision  of  sub-e  (vi),  /.  e  ,  the  omnibus 
cl  (vi)  cannot  be  constiued  as  extinguishing  the 
right  to  deductions  which  are  specifically  outlined 
and  defined  m  other  sub-sections  of  the  Act  M 
KAHIAN  SI'XOH  v  COMMISSIONER  OF  INCOME  TAX,  50  M.  L, 
J.  157,  23  L  W  267,  A  I  R  1926  Mad  462  1051 
S.  11  -Madras  City  Municipal  Act  (IV  of 

1010),  s    111— Profession  tax  levied  by  Municipality 

— Deduction  from  income-tax 

Profession  tax  levied  under  s,  111,  Madras  City 
Municipal  Act,  is  a  contribution  from  the  income  of 
the  assessee  to  the  Municipality,  and  cannot,  therefore, 
be  allowed  as  a  deduction  from  the  taxable  income,  as 
an  expenditure  incurred  solely  for  the  pui  poses  of  the 
prof eBsion  of  the  assessee,  within  the  meaning  of  s  11 
of  the  Income  Tax  Act  M  COMMISSIONER  OF  INCOME 
TAX,  MADRAS  v  MESSRS  KING  &  PARTKIDGK,  oO  M  L.  J. 
176,  49  M.  296,  A  1.  K  11)26  Mad.  068  943 
S.  25  (3)—  Business  transferred  from  one 

proprietor  *to  another,  whether  discontinued — Refund 

of  tax. 

Income  tax  is  chargeable  on  the  profits  of  a  business 
and  it  is  immaterial  if  there  is  any  change  in  the  per- 
son who  carries  on  a  business,  eo  long  as  the  business 
is  continued. 

Section  25  (3)  of  the  Income  Tax  Act  is  applicable 
only  to  cases  in  which  a  business  is  discontinued 
entirely  and  not  to  cases  in  which  it  is  transferred 
from  one  set  of  proprietors  to  another.  The  question 
to  be  decided  under  the  section  is  whether  the  business 
is  discontinued  and  not  whether  it  is  discontinued  by 
a  particular  person 

Where  a  Company  carrying  on  a  business  sellfl  the 
business,  including  the  good  will  and  the  benefit  of  all 
running  contracts,  to  another  Company,  the  ownership 
and  management  of  the  business  is  changed,  but  the 
business  is  not  discontinued,  the  purchaser  Company 
succeeds  to  the  business  and  continues  it.  Section 
25  (3)  of  the  Income  Tax  Act  has,  therefore,  no  applica- 
tion to  such  a  case.  6  COMMISSIONER  OF  INOOME  TAX  v, 
M.  H.  SAN j ANA  &  Co.,  27  Bom.  L.  R.  1471,  A.  1.  R.  1926 
Bom  129,  50  B.  87  517 
8.  66 — Application  to  Income  Tax  Commis- 
sioner— Application  to  High  Court — Reference  by 

Commissioner — All  points  in  case,  whether  to  be  stated, 

The  application  under  B.  66  (2),  Income  Tax  Act,  to 
the  Commissioner  of  Income  Tax  should  state  the 
questions  of  law  which  the  petitioner  desires  to  be 
referred  to  the  High  Court.  In  the  same  way  the 
application  under  s.  66  (3)  to  the  High  Court  ahoulti 
al0c  specify  the  question  or  questions  of  law  wk&h, 


Vol.  9*  J 


QENERAL  INDEX. 


1107 


Income  Tax  Act~1922-coucid, 

the  applicant  considers  ought  to  have  been  referred 
to  the  High  Couit  by  the  Commissioner  If  only  one 
of  seyeial  questions  raised  befoie  the  Commissioner 
is  raised  in  the  application  to  the  High  Court  under 
s  66  (3y,  no  objection  can  be  taken  to  the  coiiise,  if 
the  Commissioner  contines  his  reference  to  that  point 
alone  Hn  the  matter  of  ISHAR  DA&.-DHARAM  CHAM), 
A  I  R  1926  Lah.  168  249 
S.  66—Chief  Court  of  Oudh,  whether  liiyh 

Court  Jor  purposes  of  s  (JO — Oudh  Courts  Act  (IV  of 

19^5),  s  8—U  P  General  Clauses  Act  (1  of  lMh),s   '* 

Per  Hasan,  J  —The  Chief  Court  of  Oudh  is  a  High 
Oouit  within  the  meaning  of  s  66  of  the  Income 
Tax  Act  0  COMMISSIONER  OF  I\roMK  TAX  v  LUCKNOW 
ICK  ASSOCIATION,  A  I.  K  1926  Oudh  m  257 

Indemnity  bond,  suit  on — Actual    damage,   whether 

necessary 

In  01  dei  to  enable  a  person  to  sue  on  an  indemnity 
clause,  it  is  not  necessary  that  actual  damage  should 
be  caused  befoie  the  paity  allected  can  act  M 
MAYAPPA  CHETTIAR  v  KOLANDAIVELC  CHETTIAR,  (19.26;  M 
W  N  459,  AIR  1926  Mad  5JJ7  71 5 

Injunction. 

See  (i)  C  P  C  ,  1908,  O  XXXIX 

(n)  SPECIFIC  RELIEF  ACT,  1877,  as    52,  57 

,  tempoiary     See  DECLARATORY  bUiT  723 

Insolvency — Mortgage  of  insolvent's  px^eili/ 

The  Couit  hab  junsdiction  to  moitgage  an  insol- 
vent's piopeity  but  ordinal ily  such  a  course  bhould 
not  be  adopted  LLACHHMAV  SINGH  v  RAM  DAS  949 
^Ul*  by  insolvent  continued  by  Official  Assignee 

— Dismissal   of  suit—Costs,     whether  payable   pet- 

sonally  by  Official  Assignee 

Wheie  during  the  pendency  of  a  suit  the  plaintiff 
becomes  an  insolvent  and  tne  Ofhciai  Assignee  con- 
tinues the  action  knowing  that  it  is  wholly  unsus- 
tainable, or  where  in  the  conduct  of  the  action  he  is 
guilty  of  any  conduct,  which  a  piudent  man  would 
not  be  a  party  to,  it  would  be  open  to  the  Couit  to 
direct  the  Oincial  Assignee,  to  pay  the  costs  of  the 
action  personally  But  wheie  there  is  a  buna  fide 
dispute  and  the  facts  are  such  that  it  would  not  be 
easy  to  decide,  whether  the  bankrupt  has  a  good  case 
or  not,  the  Official  Assignee  should  not  be  made  to 
pay  the  costs  personally  out  of  hia  pocket  M 
ABDUL  RAHIMAN  {SAHIB  &  Co  v  SHAW  WALLACE  <fc  Co , 
21  L  W  516,  A  I.  R.  1926  Mad  736  620 

Interest. 

See  MORTGAGE  665 

See,  TRANSFER  OP  PROPERTY  ACT,  1882,  s,  65  (e)  17 
—  —  *  '*•' ,  compound,  when  can  be  charged  See.  CON- 

STRUCriOM   OP  DOCUMENT  195 

Interest  Act    (XXXil  Of   1839),   S.   1- Interest-- 
Absence of  demand— General  principles. 
In  the  absence  of  demand  for   interest,  a  plaintiff  is 
not  entitled  to  interest  under  the  Interest  Act* 

On  general  principles  of  law,  interest  is  not  due  on 
money,  unless  it  was  intended  to  be  paid  or  unless 
such  intention  could  be  implied  from  the  usage  of 
trade,  as  in  the  case  of  mercantile  instruments  M 
K.  VBNKAT  REDDIAR  &  Co.  v  DbsiKACHAKiAB,  22  L  VV, 
490,  A.  L  R  192J  Mad  127;*  354 

Interpretation  of  statutes. 

When  the  Legislature  passes  aa  enactment,  ita 
provisions  must  be  looked  to  rather  than  the  inten- 
tion of  the  Legislature,  as  revealed  in  the  discus- 
sion which  preceded  the  passing  of  the  Act 

The  preamble  of  an  Act  may  be  referred  to  only 
in  a  case  of  ambiguity  or  where  it  is  necessary  to 
interpret  the  Act  itself  so  as  to  give  eflteet  to  its 


Insolvency— concld 

purpoit  M  KESAVALU  NAlrKER  v  CORPOUATTQN  OF" 
MADRAS,  23  L  W  SM3,  50  Ai  L  J  301,  A  IK  ]02G 
Mad  361  1053 

Jurisdiction,  pleaof  ,  not  raised  before  Comt  of  first 
appeal,   whether  can  be  taken   in  second  appeal 
A  plea,  of  want   of  jurisdiction  of  the  Tiial  Court, 
raised  in  that   Couit   but  not   taken  in   the   Court  of 
in  ,st  appeal,   may    neveitheloss  b^    laised  in  second 
appeal      P.  C.  FIRM    OF  R    1-J    BANSILAL-ABIKCHAND  r 
OHULAM  MAHBUB  KHAN,  A  I   K  19J5  P  O    290,   49  M 
L  J    806,  43  C    L    J     1,23  L     VV   .i,  24  A  L     J  48, 
(11)26)  M  W  N  108,  28  Bom   L    li.  211,  53   C    88,30 
C  \V  N  577  760 

Jurisdiction  of  Civil  Courts, 
See  CUSTOM  1012 

See  MADRAS  VILLAUK  COLITIS  ACT,  1889,  &  78        790 

Jurisdiction  of  Civil  and  Revenue  Courts     See 
AGRA  TENANCY  ACT,  1901,  s  4  (3)  473 

Jury  trial. 

See  (i)  CRIMINAL  PUOCLDIJRR 

(n)  CR  P  C  ,  1898,  &  297  hrc 
Karachi   Port  Trust   (Amendment)    Act  (VI  of 

1924),  S.  4  (2) --"Becoming  ie(/istcied"  meaning  of 

—Right  of  election,  when  accrues 

The  word  "becoming"  hab  been  deliberately  used 
in  contradistinction  to  the  word  "being"  in  s  4  (2)  of 
the  Kaiaohi  Port  Tiiibt  (Amendment)  Act  of  1024,  nnd 
ia  intended  to  connote  something  diffeit-nt  tu  tint  \vhich 
would  be  conveyed  by  the  woid  *  being1'  Tlnj  e^pi  ession 
"becoming  registered"  in  the  section  means  in.  the 
piocess  ot  registration  as  contrasted  with  "being  regis- 
tered," which  refeis  to  an  act  pievious  to  tne  election 
Theiefoie,  an  association  mentioned  m  the  section 
exen  though  unregistered  at  the  date  of  election, 
would  be  entitled  to  elect  representatn  es  to  the- 
Karachi  Port  Trust  Board,  provided  it  was  in  the  pro- 
cess of  bv^mg  registered,  that  is  to  bay,  was  making 
bona  fide  eflorts  to  become  registered  8  RUSTOM  K* 
t?iDHvrA  v  INDIAN  MERCHANTS  ASSOCIATION,  AIR  1926 
bind  109  374 

Land    Acquisition  Act  (I  of  1894),   38.  9,11— 

Adjudication  btj  Collector  before  awafd, effect  of 

Under  s  1)  of  the  Land  Acquisition  Act  an  enquiry 
by  the  Collector  into  the  lespective  interebts  of  the 
various*  pei  sons  interested  m  the  land  must  be  made 
befoie  giving  the  final  award  and  any  such  adjudica- 
tion made  after  the  award  is  without  jurisdiction. 
L  BAGO  v  KOSHAN  BEG  484 
S.  18 — Reference,  application,  /or,  before. 

award,  ejfect  of 

An  application  mada  before  the  awaid  is  given  by 
the  Collector  cannot  be  treated  as  one  for  rcfeience 
to  Court  under  a  16  of  the  Land  Acquisition  Act  L 
BAGOIJ  KOSHAN  BHG  484 
as.  30,  31,  See  LVND  ACQUISITION  PRO* 

CEISDINQS  484 

Land  acquisition  proceedings— Dispute  t    as    to 

apportionment  of   compensation-* Civil    euit,  main" 

tainability  of. 

A  civil  suu  between  mal  claimants  about 
apportionment  ul  compensation  awarded  under  the 
Laud  Acquisition  Act  is  maintainable  where  there 
has  been  no  adjudication  of  the  dispute  by  the 
Collector,  nor  a  reference  to  the  District  Court  U 
BAGO  v  KOSHAN  BEG  484 

Landlord  and  tenant. 

See  (i)  LBASE. 

(it)  TENANCY  ACTS, 
Lands,  classification  of,  according  to  ptrma* 

ntnt  or  ihiftvng  character   of  cultivations-Pott  taq 


1106 
Landlord  and  tenant-oontd. 

and   plough  tax,  whether  rent—Right  of    cultivator 

to  minor  produce 

Prima  facie  a  tenant,  whatever  his  status  as  a 
tenant  may  be,  i.e  ,  whether  he  is  an  occupancy  tenant 
or  a  tenant  from  year  to  year  or  a  tenaut-at-will,  is 
entitled  to  the  produce  of  the  land  included  in  the 
tenancy  so  long  as  the  tenancy  subsists 

The  lands  in  a  jaghir  in  certain  hilly  tracts  in  the 
South  Arcot  District  were  classified  according  as  the 
cultivation  was  permanent  or  shifting.  The  revenue 
of  the  jaghirdar  was  not  derived  on  any  system  of 
land  assessment  The  land  which  each  cultivator 
cultivated  from  time  to  time  was  not  measured  and 
assessed  to  rent.  The  cultivators  paid  a  plough  tax, 
an  impost  of  a  fixed  amount  per  plough  being  collect- 
ed on  the  number  of  ploughs  a  man  used.  They  also 
paid  a  poll  tax  levied  on  the  individuals  of  the  male 
sex  Each  man  cultivated  where  he  liked  and  as 
much  as  he  liked  reclaiming  the  land  by  clearing  the 
jungle  and  leaving  it  for  a  new  plot  when  the  fertility 
of  the  soil  was  exhausted  . 

Held,  (1)  that  the  revenue  described  as  poll  tax  and 
plough  tax  must  be  regarded  as  rent  and  the  relation- 
ship of  landlord  and  tenant  subsisted  between  the 
jayhirdar  and  the  cultivators  , 

(2/  that  in  the  absence  of  a  custom  to  the  contrary, 
the  cultivators  were  entitled  to  the  minor  pioduce 
from  the  lands  brought  under  actual  cultivation  and 
the  fact  that  before  cultivating  new  lands  formal  per- 
mission was  taken  from  the  jagkirdar  made  no  differ- 
ence. M  THANAPPA  CEBITY  v.  ESUP  KHAN  SAHIB,  23  L. 
W.  36  753 
—  Muafi,  grant  of  —  Transfer,  prohibition 

against,  effect  of — Grove — Transfer,  unauthorised-  - 

Forfeiture— Agra  Tenancy  Act  (II  of  1901),  ss  160, 

IM-  -Suit  for  resumption  of  grove— Jurisdiction  of 

Civil  and  Revenue  Courts 

Where  land  is  granted  for  planting  a  grove  the 
person  who  plants  the  grove  acquires,  according  to 
the  general  law,  a  transferable  interest  in  the  land 
and  in  the  absence  of  a  custom  to  the  contrary,  the 
trees  become  his  property.  The  person  who  plants 
aucjijgreve  possesses  all  rights  in  respect  of  his  grove, 
w&wirfcre  not  excluded  by  custom  or  the  incidents  of 
the  tenure. 

Where  the  grant  of  a  muafi  tenure  contains  a  con* 
dition  restraining  the  tenure-holder  from  transferring 
his  right  but  there  is  no  covenant  for  re-entry  or 
forfeiture  on  such  transfer,  and  the  muafidar  plants 
a  grove,  constructs  a  well  and  builds  other 
structures  of  a  permanent  character  upon  the  land, 
the  landlord  cannot  claim  to  re-enter  upon  the  land 
or  forfeit  the  tenure  upon  a  transfer  of  the  tenure  by 
the  grantee. 

Per  Ashworth,  J  — A  local  custom  supersedes  the 
Statute  or  general  law.  A  local  usage  does  not 
flupersede  it  but  is  to  be  read  into  the  contracts  or 
implied  contracts  of  persons  living  in  the  locality  to 
which  the  usage  applies.  While  a  custom  depends  for 
its  validity  on  its  antiquity,  a  usage  depends  for  its 
raiidity  on  its  notoriety. 

A  provision  in  a  grant  against  transfer  would  be 
meaningless  unless  one  were  to  read  into  it  also  a 
provision  that  it  will  involve  forfeiture  The  terms  of 
a  grant  forbidding  transfer  must,  therefore,  entail 
that  the  right  of  reversion  operates  from  the  date  when 
possession  is  given  to  a  third  party  under  an  un- 
authorized transfer. 

Sections  150  and  167  of  the  Agra  Tenancy  Act  only 
-1"  J->  the  jurisdiction  of  Civil  Court*  &  caeca  of 


CASES. 

Landlord  and  tenant— conoid. 


[1926 


the  resumption  of  "land"  which  means  land  let  or 
held  for  agricultural  purposes  and  a  grove  is  not 
such  land.  Therefore,  a  suit  relating  to  the  resump- 
tion of  a  grove  does  not  fall  within  the  purview  of 
those  sections.  A  GOPAL  v.  COLLECTOR  OF  ALIGARH  134 
Mulgeni ,  tenure— Liability  of  land  to 

inundation — Abatement  of  rent — Equity,  justice  and 

good  conscience— English  Law,  principles  of,  whether 

to  be  followed 

The  holder  of  a  mulgeni  tenure  in  the  Bombay  Presi- 
dency cannot  claim  abatement  of  rent  in  respect  of 
lands  comprised  in  the  tenure,  which  have  not  been 
entirely  washed  away  or  covered  by  sea-water  or 
rendered  entirely  useless  for  cultivation  by  their 
liability  to  inundation  by  sea-water,  but  whose 
productive  powers  have  deteriorated  from  such 
liability  to  inundation. 

Per  Fawcettt  J. — In  determining  a  suit  according  to 
"equity,  justice  and  good  conscience"  the  principles  of 
English  Law,  applicable  to  a  similar  state  of  circum- 
stances, unless  shown  to  be  inapplicable  to  Indian 
society  and  circumstances,  should  be  taken  as  a  guide. 

B  VlSHVANATH  SHAMBA    NA1K   V,       RAMKRIBHNA    MARTOBA 

KASBEKAR,  27  Bom.  L  R  1478,  A  1.  fi  1026  Bom  86; 
SOB  94  537 
.Rent,  when  falls  due. 

Ordinarily  rent  for  agricultural  land  becomes  due 
on  the  last  day  of  the  year.  M  MINNA  KARUPPAN  v. 
MUTHIAH  CHETTIAR,  22  L  W  816;  AIR.  1926  Mad. 
178  373 
Tenancy,  benami,  whether  legal— Holding 

cultivated  by  real  tenant  -Benamidar,  disappearance 

of— Abandonment— Landlord,    whether  can   forfeit 

tenancy. 

Though  a  contract  of  tenancy  is  a  personal  one,  a 
recorded  tenant  may  hold  land  benami  for  some  other 
person,  and  if  there  are  circumstances  to  show  the 
landlord  knew  that  the  recorded  tenant  was  merely 
a  benamidar,  he  cannot  treat  the  holding  as  abandon- 
ed if  the  benamidar  disappears  and  the  land  is  culti- 
vated by  the  person  for  whom  he  was  a  benamidar.  N 
KANKAI  v  TIKARAM,  A  I.  R.  1926  Nag.  239  8<tO 
Tenancy  rights,  mortgage  of,  whether  void 

ab  initio 

A  mortgage  of  his  tenancy  lands  by  a  tenant-at- 
will  is  not  void  ab  initio  O  SHUNKAR  v,  MAHADI,  13 
O.  L  J  211  46 

Lease, 

See  ALSO  (?)  LANDLORD  AND  TENANT. 

(ii)  TRANSFER  OF  PROPERTY  ACT,  1882,  ss.  106, 
117. 

See  CONSTRUCTION  OF  DOCUMENT  411 
Lessor  and  lessee— Lease  for  term  of  years — 

Deposit  of  cash  with    lessor    to  be  appropriated  to 

last  year  s  rent— Subsequent  conversion  of  cash  into 

Government  pro-notes    by    consent      of     parties — 

Depreciation  in  value  of  notes — Loss,  liability  for. 

A  lessee  for  a  term  of  5  years  deposited  a  sum  of 
money  equivalent  to  one  year's  rent  with  the  lessor  on 
the  understanding  that  the  amount  would  be  applied 
inpayment  of  the  last  year's  rent  Soon  after,  by 
consent  of  both  parties,  Government  promissory  notes 
were  purchased  for  the  cash  deposit.  But  by  the  time 
the  lease  terminated,  the  notes  had  considerably 
depreciated  in  value  On  a  question  arising  as  to 
who  was  to  bear  the  loss  arising  from  the  said 
depreciation  in  value: 

Held,  that  the  cash  deposit  belonged  to  the  lessee 
and  the  conversion  of  cash  into  Government  pro-note* 
bad  apt,  in  the  absence  of  any  special  agreement,  &$ 


?ol,  92] 

Uaie-oonold, 


QEKBRAL INDEX 


1109 


•fleet  of  transferring  thi  property  in  them  from  the 
lessee  to  the  lessor.  The  property  in.  the  notes  being 
the  lessee's,  when  they  depreciated  in  value,  he  ought 
to  bear  the  loss  M  THIRUMALAI  PILLAI  v  ARUNCHRLLA 
PADAYAOHI,  AIR.  192  \  Mad  510  520 

Permanent  residential  tenancy— Presumption, 

when  arises— Fresh     lease— Old     tenancy,  whether 
continued — Adverse  possession  by  lessee 
Where  the   origin  of  a  tenancy  for   residential  pur- 
poses is   known,  no   presumption  of  permanency  can 
arise. 

A  fresh  lease  executed  after  the  expiration  of  the 
term  of  the  previous  lease,  creates  a  new  tenancy  and 
is  not  a  confirmation  of  the  previous  tenancy 

A  person  who  has  lawfully  come  into  possession  as 
tenant  from  year  to  year  or  a  term  of  years  cannot  by 
setting  up,  however  notoriously,  during  the  continu- 
ance of  such  relation,  any  title  adverse  to  that  of  the 
landlord  inconsistent  with  the  legal  relation  between 
them,  acquire,  by  limitation,  title  as  owner  or  any  other 
title  inconsistent  with  that  under  which  he  was  let 
into  possession  C  GOPAL  CHANDRA  DAB  v  SATYA 
BHAN-DGH  OSHAL,  AIR  1926  Gal  634  963 

Legal  Practitioners  Act  (XVIII   of  1879),  8,  4— 

"Practise,"  meaning  of. 

The  word  "practise"  in  a  4  of  the  Legal  Practitioners 
Act,  includes  the  right  to  appear,  plead  and  act  Pat 
LcRENTiue  EKKA  v  DHUKI  KOERI,  4  Pat,  766,  AIR. 
1926  Pat  73,  7P  L  T  3f>2  179 
39. 1 3,  7 —Legal  practitioner— Civil  dis- 
obedience— Sanad,  renewal  of 
While  the  High  Court  will  not  interfere  with  or 
have  regard  to  any  man's  political  opinions  or  opinions 
on  public  questions,  it  is  impossible  to  allow  a  person, 
who  proclaims  or  practices  what  is  called  the  doctrine 
of  "civil  disobedience11,  to  ask  to  be  part  of  the 
machinery  of  tbfi  Courts  which  exists  for  the  very 
purpose  of  the  thwarting  of  civil  disobedience  and  the 
enforcement  of  civil  obedience  He  may  be  a  perfect- 
ly honourable  man ,  he  may  act  from  conscientious 
motives  ,  he  may  in  conceivable  circumstances  be  a 
patriot  It  may  be  imagined  that  he  should  not  be 
punished  or  even  prosecuted  for  holding  or  expressing 
these  opinions  but,  however,  admnable  a  person  he  may 
ba,  he  cannot  consistently  with  his  professions,  ask: 
to  be  considered  and  to  be  adopted  as  a  legal  practi- 
tioner, that  is,  as  part  of  the  machinery  of  the  High 
Court  for  enforcement  of  law  and  order  M  Jn  the 
matter  of  K  M  FIRST  GRADR  PLEADER,  AIR  1924 
Mad.  47ft,  (1924)  M  W  N  5,  27  Or.  L  J  230  214 
— —  s.  1 0r— Legal  practitioner,  misconduct  o/ — 
— Jurisdiction  to  inquire  into,  whether  confined  to 
Court  in  which  misconduct  committed — Transfer  of 
proceedings,  competency  of. 

Section  14  of  the  Legal  Practitioners  Act  does  not 
limit  the  consideration  of  a  charge  of  misconduct 
against  a  legal  piactitioner  to  the  Court  in  which  the 
misconduct  is  alleged  to  have  been  committed  Any 
Court  in  which  the  Pleader  practises  is  empowered  to 
entertain  a  petition  under  the  section 

A  Magistrate  who  has  been  moved  under  s  14  of 
the  Legal  Practitioners  Act  to  institute  proceedings 
against  a  legal  practitioner  for  misconduct  has  no 
jurisdiction  to  transfer  the  proceedings  to  a  subordi- 
nate Magistrate  for  action  or  to  direct  him  to  hold  a 
preliminary  inquiry.  M  In  re  VANUGOPAL  NAYUDCT,  27 
Cr.  L.  J.  384  896 

—  8,  36,  action  under~-Neces8ity  for  caution — 

Defence  evidence. 

36  oi  the  Legal  Practitioaers   Act  being 


Legal  practitioners  Act— conckL 

drastic -and  somewhat  exceptional,  a  great  deal  of 
oare  and  caution  is  necessary  before  taking  action 
under  it  and  the  person  affected  must  be  given  full 
opportunity  of  producing  defence  evidence  L  DIWAN 
CHAND  v  EMPEROR,  27  Cr.  L  J.  333,  AIR  1926  Lah. 
227  749 

Letters  Patent  (AH.)»Cl.  11,  See  AGRA  TENANCY  ACT, 
1901,88,  175,177  282 

Letters  Patent  (Som.)i  Cl.  15— Finding  that  suit 
is  maintainable,  whether  "judgment"— Appeal,  whe- 
ther lies. 

A  finding  that  a  suit  is  maintainable  and  should 
proceed,  even  though  embodied  in  a  formal  decree,  is 
not  a  "judgment"  within  the  meaning  of  cl  15  of  the 
Letters  Patent  of  the  Bombay  High  Court,  and  is  not, 
therefore,  open  to  appeal. 

Per  Coyajee,  J  —The  word  ''judgment"  in  cl  15  of 
the  Letters  Patent  of  the  Bombay  High  Court  means 
a  judgment  or  decree  which  decides  the  case  one 
way  or  the  other  in  its  entirety,  and  does  not  mean 
a  decision  or  order  of  an  interlocutory  character, 
which  merely  decides  some  isolated  point,  not  affect- 
ing the  merits  or  result  of  the  entire  suit  B  SHRI 

GOVERDHANLALJI  MAHARAJ  V   SHRI     CHAKDRAPRABHAVATI, 

27  Bom  L  R  14%,  AIR  1926 Bom  136  552 

Limitation  -Claim  by  way  of  defence— Limitation, 

whether  can  be  pleaded, 

It  is  a  settled  rule  of  law  that  no  limitation  can  be 
pleaded  against  a  claim  made  by  wav  of  defence  0 

JUlSUNNIBAt)    ZORAWARflAH,   3O    W    N    121,    13     0    L 

J.  10,  A  I.  R.  1926  Oudh  228  675 

~t  commencement  of,    during  lifetime  of    full 

owner — Death  of  full  owner — Succession  by  limited 
owner — Suspension  of  limitation 
Once  limitation  has  commenced  to  run  in  the  life- 
time of  a  full  owner,  it  is  not  suspended  by  reason  of 
the  fact  that  the  full  owner  dies  and  is  succeeded  by 
a  limited  owner     Pat  BATISA  KUWR  v  RAJA  RAM  PADT, 
(1925)  Pat  343,  A  I  R  1926  Pat  193.  7  P  L.T  393177 
Limitation  Act  (IX  of  1871),  8ch.  fl,  Art  129, 
application  of 

Article  129  of  Sch  II  to  the  Limitation  Act  of  18T1 
applied  to  all  suits  in  which  the  plaintiff  could  not 
succeed  without  displacing  an  apparent  adoption  by 
virtue  of  which  the  defendant  was  in  possession  and 
where,  before  the  repeal  of  that  Act,  the  defendant's 
title  had,  owing  to  the  afflux  of  time,  become  unassail- 
able, the  repeal  of  that  Act  would  not  revive  the  right 
of  any  reversioner  to  the  estate  to  question  the  validity 
of  the  adoption  under  which  the  defendant  claimed. 
P  C  VAITHTALI^GA  MCTDALTAR  v  SRTRANQATH  ANNI,  A. 
I  R  1925  P.  C  219,  L  R  6  A  P  C  169  49  M  L  J 
769  42  C  L  J  56*$,  48  M  8*3,  30  0  VV  N,  313,  28 
Bom  L  R  173;  (1926)  M  W  N  11,  52  I.  A.  322  85 
Limitation  Act  (IX of  1908),  s.  5. 
See  r  P  0  ,1908,  s  149  319 

See  VAKALATNAMA  966 

— —  s,  5— Appeal  filed  beyond  time  —Extension  of 
time— Discretion  of  Court— Bona  fide  revitw  pro- 
ceedings—Issue of  notice  on  application,  if  suffi- 
cient—Prospect of  success 

Discretion  of  Court  must  not  be  exercised  arbitrarily 
but  upon  sound  legal  principles 

In  an  application  for  extension  of  time  by  an  appel- 
lant who  has  been  prosecuting  review  proceedings,  the 
.  applicant  must  show  that  the  application  for  review 
was  prosecuted  with  due  diligence  and  that  there  were 
reasonable  grounds  for  nlinfif  such  an  application. 

When  the  applicant  fulfils  the  above  conditions  and 
the  Court  either  ignores  them  or  deoidea  the  applic* 


1110 


INDIAN  OASES, 


[1920 


Limitation  Act -contd, 

tioii  upon  other  grounds  there  would  be  no  exercise  of 
judicial  discretion. 

The  test  of  a  bona  fide  application  for  review  is  not 
the  prospect  of  success  of  the  applicant  Issue  of 
notice  on  the  opposite  party  is  sufficient  C  RAMPHANI 
MUCHI  v.  KHAKSHARDAB  TATI,  A.  I.  R  1926  Cal  677 

1031 

— > S.   5—  Application,   delay  in      filing— Time, 

spent  in   obtaining  copy   not    required  to  le  filrd — 

Krtension  of  time— Sufficient  cause 

Delay  in  filing  an  appeal  cannot  be  excused  on  the 

ground  that  it  was  due  to  time  spent  in.  obtaining  a 

ropy  which  was  not  required  to   be  filed  along  with 

the  memorandum    of  appeal     R   CHAN  ELLIAM  v  NEO 

THKIN  THEONG,  A.I.   R     1925  Rang.  361,  4  Bur.  L  J 

138  786 

S.  5 —Petition  presented  out  of  time— Delay, 

explanation  of—Extension  of  time,  prayer  for 
A  petition  filed  out  of  time  must  show  on  the  face 
of  it  the  reason  for  the  delay,  and  there  must  he  an 
express  prayer  for  condonation  of  the  delay  under  s  5 
of  the  Limitation  Act  Pat  LAURKNTIUS  EKKA  v  DIIUKI 
KOBBI,  4  Pat  7C6;  A.  I  R  1926  Pat  73;  7  P  L  T  362 

179 

—  8.  5,   scope  of  —  Extension  of  time  for  appeal 

—  Counsel's  wrong  advice,  effect  of 
A  party  in  whose  favour  a  decree  or  order  is  passed 
should  not  be  deprived  of  the  advantage  of  his  vested 
right  in  the  same  unless  there  has  been  on  his  part 
some  conduct  raising  an  equity  against  him  or  there 
has  been  some  inevitable  accident 

It  is  not  each  and  every  mistake  of  a  Counsel 
which  perse  13  to  be  considered  a  sufficient  ground 
for  giving  his  client  the  benefit  of  s  5  of  the  Limita- 
tion Act, 

A  mistaken  advice  of  a  Counsel  that  an  appeal  lay 
from  au  order  dismissing  an  application  for  the 
amendment  of  a  decree,  causing  a  bona  fide  wrong  im- 
pression on  the  client  and  a  delay  in  the  filing  of  an 
appeal  from  another  appealable  order  in  execution 
proceeding,  cannot  furnish  a  sufficient  ground  for 
condoning  the  delay  under  s  5  of  the  Limitation  Aft 
N  SADASHEO  v  lUru,  AIR  1926  Nag.  162  33 

~ ~ — S8- 5,  12-- Calcutta  High    Court  Rules,    Ch. 

A I  Jt  r  27—  Appeal  filed  beyond  time— Extension  of 

time— Delay  in  getting  decree  drawn  up  -  Application 

/or  office  copy   of  decree,  effect  of 

Before  an  appeal  can  be  filed,  the  decree  or  order 
nlust  be  drawn  up  and  the  would-be  applicant  must 
obtain  a  copy  of  the  decree  or  order,  which  it  is  his 
duty  to  file  with  the  memoiandum  of  appeal 

By  reason  of  r  27,  Chap  XVI  of  the  Calcutta  High 
Court  Rules,  if  the  party  in  whose  favour  a  decree 
has  been  made  does  not  apply  to  have  the  decree 
drawn  up  within  four  days  from  the  date  of  the  decree 
any  party  to  the  suit  may  apply  to  have  the  decree 
drawn  up, 

It  is  not  sufficient  for  a  person  desiring  to  appeal 
to  put  in  a  requisition  for  an  office  copy  without 
taking  any  steps  to  have  the  decree  dra\\nup  This 
does  not  afford  ground  for  extension  of  time  under 
s  5,  Limitation  Act,  m  the  ease  of  an  appeal  filed 
beyond  time  on  account  of  delay  in  obtaining  copy  of 
the  decree 

Time  which  need  not  have  elapsed,  if  the  appellant 
had  taken  reasonable  and  proper  steps  to  obtain  a 
copy  of  the  decree  or  order,  could  not  be  regarded  aa 
requisite'  time  within  bub-e,  (2)  of  a,  12  of  the  Limit* 


Limitation  Act— cantd, 

tion  Act.    C  GOBIND  LAL  Bnrr  v.  OFFICIAL 

290  W   N  163,  A  I  R  1925  Cal  291  563 

8,6.    SeeC  R0,1908,s  115  775 

8.   6 — Mortgage — Redemption    suit — Decretal 

amount  determined  by  Trial  Court  enhanced  by 
Appellate  Court— Civil  Procedure.  Code  (Act  V  of 
1908),  8.  l^Jf. — Restitution  -Application  by  mortgage* 
for  recovery  of  mesne  profits,  whether  application 
for  execution— Minority  of  applicant — Limitation, 
extension  of. 

Where  in  pursuance  of  a  decree  for  redemption 
passed  by  a  Trial  Court,  the  plaintiff  pays  the  amount 
mentioned  in  the  decree  and  obtains  possession  of  the 
mortgaged  property,  but  the  amount  payable  under 
the  decree  is  subsequently  enhanced  by  the  Appellate 
Court,  an  application  by  the  mortgagee  to  recover 
mesne  profits  from  the  mortgagor  by  way  of  restitution 
for  the  period  between  the  date  on  which  possession 
of  the  mortgaged  property  was  taken  by  the  mort- 
gagor and  the  date  on  which  he  paid  the  difference 
between  the  decretal  amount  payable  under  the 
decree  of  the  Trial  Court  and  that  payable  under  the 
decree  of  the  Appellate  Court,  is  an  application  for 
execution  within  the  meaning  of  s  6  of  the  Limitation 
Act  and  the  mortgagee  is  entitled  to  the  benefit  ol 
the  provisions  of  that  section  O  SANT  SAHAI  v. 
CHHUTAI  KUBMI,  SO  W  N  65,  A  T  R,  1926  Oudh 
109  23 

88.  6,  8,    See  PUNJAB  LIMITATION    (CUSTOM) 

ACT,  1920,  88.  5,  6  294 

-s.  12.  See  LIMITATION  ACT,  1QOR,  R  5  563 

8.12  (3).  See  LIMITATION  ACT,  1908,  Sen  T, 

ART  179  897 
8. 12— Time  allowed  for  copies,  calculation 

of 

Time  allowed  for  copies  in  filing  an  appeal  should 
be  calculated  from  the  date  of  application  up  to  the 
date  when  the  copies  are  despatched,  and  not  merely 
up  to  the  date  when  they  are  ready  L  ALLAH  BAKHSH 
v.  MUNICIPAL  COMMITTEE,  A.  I  R  1926  Lah.  223  966 

8.14,   See    BENGAL   TENANCY  ACT,  1885,  a  46 

37 

8. 14 — Application  not  lying  in  any  Court — 

Extension  of  time 

An  application  which  does  not  lie  in  any  Court 
cannot  be  taken  into  account  for  the  sake  of  extend- 
ing time  under  s  14,  Limitation  Act  L  MOHAN  STNGH 
v  NATHU  MAL  299 

— 8. 14  -  Ciml  Procedure  Code  (Act  V  of  1908), 

O.VII,  r    W — Plaint   presented  in  wrong  Court — 
Order  directing  return  of  plaint  for  presentation  to 
proper  Court — Time  between  date  of  order  directing 
return  and  date  of  actual  return,  exclusion  of. 
Where  a  plaint  is  presented   in  a  wrong  Court,  and 
the  Court  after  inquiry  ultimately  directs  the  plaint  to 
be  returned  for  presentation  to  the  proper  Court,  the 
plaintiff  is  entitled,  under  s  14  of  the  Limitation  Act, 
to  exclude  the   whole   period    from  the  date   of  the 
filing  of  the  plaint  in  tHfe  wrong  Court    to  the  date  on 
which  the  plaint  is  actually  returned  for   re-presenta- 
tion. ; 

In  such  a  case  the  proceedings  terminate  not  on  the 
date  of  the  order  directing  the  .plaint  to  be  returned 
•but  on  the  date  of  the  actual  return  with  the  endorse- 
ments on  the  plaint  in  accordance  with  the  provisions 
of  O.  VU,  r  10,  O  P  C  M  SINWA  KARUPPAN  v. 
MUTHIAH  CHETTIAB,  23  L,  W.  818;  A,  I,  R,  1926 Mad.  178 

373 


GENERAL  INDEX. 


mi 


Limitation  Act-coatd. 

• — -  »•  1 8.    See  PCNJAB  TBNANOT  ACT,  1887,  s.  50 

597 

"          —  S.  19 — Pro-note,  invalid,  whether  can  fee  used 

as  acknowledgment 

When  a  person  borrows  a  certain  sum  of  money  and 
executes  a  promissory  note,  he  executes  at  for  the  con- 
sideration received  by  him  and  when  it  is  executed  in 
respect  of  a  consideration  already  passed  it  is  an 
acknowledgment  of  the  liability  to  pay  the  amount 
mentioned  m  the  note 

Though  a  promissory  note  made  payable  to  bearer 
cannot  be  enforced  as  being  invalid,  it  can  neverthe- 
less be  used  as  evidence  of  an  acknowledgment  of 
liability  under  s.  19  of  the  Limitation  Act  so  as  to 
save  the  bar  of  limitation.  M  ALELLA  KESAVARAMAYYA 
v  VISAMSBTTI  VRNKATANARASIMHA,  (19,76)  M  W  N  141, 
50  M  L  J  36,  23  L  W  678,  A  I.  R  1926  Mad  452 

626 

-S.  20,    See  EVIDENCE  ACT,  1872,  s  114    687 

8.  20 — Pro-note,  execution  o/,  for  another — 

Payment  of  interest    by   real  debtor—Extension  of 

time 

Where  a  promissory  note  is  executed  in  pursuance 
of  an  agreement  between  the  executant  and  a  third 
party  that  the  former  would  execute  the  promissory 
note,  but  that  the  latter  would  pay  the  interest  on  it 
and  also  the  principal,  this  19  sufficient  evidence  of  an 
implied  condition  that  that  third  party  should  pay 
the  interest  falling  due  on  the  promissory  note  as 
the  duly  appointed  agent  of  the  executant  and  the 
payment  by  him  of  interest  saves  limitation,  but  not 
so,  where  payment  of  interest  is  made  not  m  conse- 
quence of  any  such  agreement  between  the  third 
party  and  the  executant  but  m  consequence  of  an 
understanding  between  the  executant  and  the  pro- 
misee O  NATIONAL  BANK  OF  UPPER  INDIA  v  BANKI 
DHAR,  3O  \V  N  83,  A  I  R  1926  Oudh  248  94 
8.  23.  See  LIMITATION  ACT,  1903,  SCH  1,  ART 

36  994 

• Sch.  I,  Art.  36,  8.  23— Suit  for  compensation 

for^lamage  caused  by  defendant*  action—Limitation 
-Continuing  wiong —Date  of  malfeasance 

Limitation  for  a  suit  to  recover  compensation 
for  damage  caused  to  the  plaintiffs1  building  by 
the  action  of  the  defendants  m  closing  up  ceitam 
drains  which  emitted  w<itei  from  the  plaintiffs1  build- 
ing on  to  the  detendants'  premises  ib  two  years  from 
the  date  of  the  damage 

The  action  of  the  defendants  m  closing  up  the  drains 
and  thereby  causing  damage  to  plaintiffs*  building  is 
a  continuing  wrong  as  contemplated  by  s  23,  Limita- 
tion Act 

In  cases  of  continuing  wrongs  the  date  of  the 
damage  is  the  date  of  the  malfeasance  within  the 
meaning  of  Art  36  of  Sch  I  to  the  Limitation  Act  L 
CHIRANMI  LAL  T>  SHIB  LAL,  A  I  R  1926  Lah  242994 
~ Art.  62.  See  PROVINCIAL  SMALL 

CAUSE  COURTS.ACT,  1887,  SCH  11,  ART  18  731 
Ark  75 — Instalment  bond — Whole 

amount  becoming    due  on  default— Limitation,  com- 
mencement of 

Where  an  instalment  bond  provides  that  on  default 
in  the  payment  of  two  instalments  the  whole  amount 
due  under  the  bond  shall  become  payable,  and  default 
is  made  in  the  payment  of  two  instalments,  a  suit  to 
recover  the  amount  of  the  bond  is  governed  by  Art  75 
of  Sch  I  to  the  Limitation  Act,  and  limitation  begins 
to  run  from  the  date  on  which  the  second  instalment 
in  respect  of  which  default  was  made  became  due  N 
KISAK  v.  JABOPXBAI,  A,  I,  Ji.  1925  Nag,  298  £30 


Limitation  Act— contd, 

• SCh.  I,  Art.  83— Principal  and  agent—Suit 

by  agent  for  re-imbursement — Limitation 
A  suit  by  a  commission  agent  for  re-imbursement 
of  losses  paid  on  behalf  of  his  principal  is  governed 
by  Art  83  of  Sch  I  to  the  Limitation  Act,  and  limita- 
tion in  respect  of  each  item  begins  to  run  from  the 
date  of  damnification  LMuKSHiRAMv  BHAOWAN  DAS, 
7  L  L  J  596,  AIR  1926  1  ah  152  595 

Art.  85 — Mutual   open   and  current 

account— Shifting  balance,  effect  of 
In  order  that  an  acco  nt  maybe  mutual  open#nd 
current  within  the  meai  m^  of  Art  85  of  Sch  I  to  the 
Limitation  Act,  there  must  be  transactions  on  each 
side  creating  independent  obligations  on  the  other 
and  not  merely  transactions  which  create  obligations 
on  the  one  side,  those  on  the  other  being  merely  com- 
plete or  partial  discharges  of  such  obligations 

Where  an  account  between  two  persons  resembled 
a  Bank  pass-book  where  deposits  of  monies  were  made 
and  withdrawals  of  monies  took  place  from  time  to 
time  the  balance  being  in  favour  either  of  one  or  other 
as  the  case  might  be 

Held,  that  the  mere  shifting  of  account  from  one 
side  to  th^  other  did  not  constitute  mutual  and  inde- 
pendent obi  gations  M  QOVINDA  NADAN  v  RAMASAMI 
CHHTTIAR,  (1925)  M  W  N  927,  AIR  1926  Mad  224, 
23  L  W  573  106 

Art.  35 — principal  and  commission 

agent — Account,  mutual,  open  and  current 
A  suit  on  an  account  by  a  commission  agent,  who 
received  goods  from  the  defendant  and  also  discount- 
ed his  hundis,  showing  a  shifting  balance  sometimes 
in  favour  of  ore  ^nd  sometimes  in  favour  of  the  other 
is  a  suit  on  a  n  utu'l,  open  and  current  account,  and 
is  governed  bv  Art.  flo  of  Sch  I  to  the  Limitation 
Act  L  FIRM  BIHMU  LAL-JAI  NARAYAN  v  UAR  NARAIK 
DAS,  A  I  K  192«Lah  283  674 

Art.  115.    See  TRANSFER  OF  PROPFRTY 

ACT,  1882,  s  95  559 

Art,  1 20.   See  TRANSFFR  OF  PROPFRTY 

ACT,  1882,  s  53  405 

_  Art.  120— Suit  for  specific  per- 
formance, dismissal  of^Suit  to  recover  loan — 
Limitation 

Defendant  handed  over  a  piece  of  land  to  the  plaint- 
iff as  security  for  a  loan,  the  agreement  between  the 
parties  being  that  if  the  defendant  failed  to  re-pay  the 
loan  within  three  vears,  the  land  would  be  conveyed 
to  the  plaintiff  Plaintiff  continued  m  possession*  of 
the  land  and  after  the  expiry  of  the  three  years  filed 
a  suit  for  specific  perform  vice  of  the  agreement  to 
convev,  which  was  dismissed  He  then  brought  a  suit 
to  recover  the  amount  of  the  loan 

Held,  that  the  suit  was  governed  by  Art  120  of 
Sch  I  to  the  Limitation  Act,  and  that  the  cause  of 
action  arose  when  the  suit  for  specific  performance 
was  dismissed  R  Mo  Po  KIN  v  Mo  Po  OH,  AIR 
1925  Rang  373,  4 Bur  L  J  160  736 

Art.   123—  Suit     by  heir  to  recover 

share  of  estate  of  deceased  from  co-heirs — Limitation 
applicable 

There  is  no  reason  why  a  different  aspect  should 
be  given  to  a  claim  for  a  distributive  share  of  the 
estate  of  a  deceased  person  against  an  administrator, 
who  should  have  distributed  the  estate  and  given  a 
share  totho  plaintiff  but  failpd  to  do  so,  from  the 
aspect  of  a  similar  claim  against  one  or  more  heirs 
of  a  deceased  person  who  should  have  amicably 
agreed  to  a  partition  of  the  estate  and  given  a  share 


nil 

Limitation  Aot-coatd. 


IHDIA*  CAflEH, 


(1H0 


to  the  plaintiff  but  have  failed  to  do  so.  Such  a  suit 
is  governed  by  Art.  123  of  Sch.  I  to  the  Limitation 
Act  R  MA  TOK  v,  MA  YIN,  A  I.  R,  1925  Rang  228;  3 
K.  77  489 

Sch.  lf  Art.  1 32.    See  TRANSFER  OF  PROPERTY 

ACT,  1882,  s.95  559 

-•  Art.  1 32 — Mortgage-deed— Mortgagor 

at   liberty    to  pay  at  any  time— Commencement  of 

limitation  for  mortgagee. 

Where  according  to  the  terms  of  the  mortgage-deed 
the  mortgagor  is  at  liberty  to  pay  at  any  time,  the 
mortgagee  is  equally  at  liberty  to  foreclose  and  his 
limitation  under  Art  132  of  Sch  I  to  the  Limitation 
Act  begins  to  run  at  once.  L  ZIADA  v  GURDAS  .RAM, 
A,  I.  R.  1226  Lah.  225  656 
Art  1 32— Transfer  of  Property  Act 

(IV   of   1882),  s   7Jf— -Mortgages,  prior  and   subse- 

rnt — Decree  obtained  by  prior  mortgagee  paid  off 
puisne    mortgagee — Suit  by  puisne  mortgagee  to 
recover  money  paid  by  him — Limitation,    commence- 
ment o/. 

Under  s,  74  of  the  Transfer  of  Property  Act  a  puisne 
mortgagee  on  paying  off  a  decree  obtained  by  a  prior 
mortgagee  acquires  all  the  rights  and  powers  of  the 
prior  mortgagee  as  such  as  determined  by  the  decree 
and  the  rights  so  acquired  by  the  puisne  mortgagee 
can  be  enforced  by  him  by  a  separate  suit  Article 
132  of  Sch.  I  to  the  Limitation  Act  would  apply  to 
such  a  suit,  the  period  of  limitation  being  twelve  years 
from  the  date  on  which  the  money  became  due  to  the 
puisne  mortgagee,  that  is  to  say,  from  the  date  on 
which  the  puisne  mortgagee  paid  off  the  prior  mort- 
gagee's decree  and  became  entitled  under  the  pro- 
visions of  s  74  of  the  Transfer  of  Property  Act  to 
the  rights  created  by  the  decree  N  SURYABHAN  v. 
RENUKA.8N.  L.  J.  232,  A  I  R  1926  Nag.SA  118 


-Art.  134,   scope    of— Transfer 


mortgagee — Suit  for  redemption— Honest  belief   of 

transferee — Limitation 

In  every  case  where  Art  134  of  Sch  I  to  the  Limita- 
tion Act  is  set  up  as  a  defence  by  a  transferee  from  a 
mortgagee,  it  is  mateiial  to  see  what  interest  the 
mortgagee  purported  to  transfer,  and  where  both  the 
seller  and  purchaser  honestly  believed  that  the  entire 
interest  of  an  owner  was  being  transferred,  the  Article 


is  clearly  applicable 
Obiter  —The 


be  omission  in  Art  134  of  Sch  I  to  the 
Limitation  Acts  of  1877  and  1908  of  the  words  'in  good 
faith'  which  appeared  in  the  corresponding  article  of 
the  Limitation  Acts  of  1859  and  1871  now  render  it 
unnecessary  for  a  transferee  from  the  mortgagee  to 
prove  that  he  acted  in  good  faith  before  he  can  plead 
limitation. 

Per  Ramesam,  J.— The  possible  cases  that  may 
arise  in  the  case  of  a  transfer  by  a  mortgagee  are 
four : — 

(1)  Where  the  transfer  on  its  face  purports  to  be  an 
assignment  of  the  mortgagee's  interest  only,  to  such 
a  case    Art.  134    of  Sch.  I  to  the    Limitation  Act  can 
never  apply. 

(2)  Where  the  transfer  purported  to  be  a  sale-deed 
but  as  a  matter   of   fact  only  an  assignment   of   the 
mortgagee's  interest  was  all  that  was  bargained-for,  to 
such  a  case  also  Art  134  does  not  apply. 

(3)  Where  the  deed  of  transfer  is  a  sale-deed   and 
what  was  bargained     by  the    transferee    is    also  an 
absolute  sale,  though  he  knew  that  the  transferor  had 
only  a  mortgagee's  interest,   in  such   a   case  though 
under  the  Limitation  Acts  of  1859  and  1871,  Art,  134 


Limitation  Act— coatd, 

may  not  apply,  under  the  Acts  of  1877  and  1008  it  doei 
apply. 

(4)  Where  the  transfer  is  in  the  form  of  a  sale-deed 
and  the  transferee  bargained  for  an  absolute  interest 
and  acted  bona  fide  throughout,  to  such  a  case  there 
is  no  doubt  that  Art.  134  will  always  apply.  M  VENKU 
SHETTITHI  v  RAMACHANDRAYYA,  49  M.  L,  J.  §34;  (1925) 
M.  W.  N  86*;  22  L,  W.  885;  A.  I.  R  192«  Mad.  81;  49 
M.  29  342 

Sch.  I,  Arts.  134, 140, 148— Adverse  pot- 
session  during  tenure  of  life-tenant—  Remainderman, 
whether  affected— Mortgage— Transfer  by  mortgagee 
— Redemption  suit  by  remainderman—Limitation. 
Article  134  of  Seh.  I  to  the  Limitation  Act  deal* 
with  transfers  of  property  which  has  been  mortgaged. 
The  Article  does  not  specifically  require  that  the 
property  should  have  been  mortgaged  with  posses- 
sion. The  suits  referred  to  in  the  Article  being, 
however,  suits  for  possession,  it  must  be  assumed  that 
when  such  a  suit  is  brought  the  defendant  transferee 
is  in  possession.  Therefore,  the  transfer  which  he 
has  taken  must  have  been  one  which  placed  him  in 
possession  and  consequently  where  the  transferor  ia 
a  mortgagee  he  must  have  been  in  possession  of  the 
mortgaged  property  at  the  time  he  made  the  transfer. 
It  is  not,  however,  necessary  that  the  possession, 
which  the  transferor  had  at  the  time  of  the  transfer 
must  have  been  acquired  under  the  mortgage  origin- 
ally made  in  his  favour.  Even  if  the  mortgage  was 
a  simple  mortgage  and  the  mortgagee  subsequently 
gets  possession  of  the  mortgaged  property  otherwise, 
as  for  example,  by  purchase  in  execution  of  a  simple 
money-decree  obtained  against  the  mortgagor  by 
another  creditor,  the  Article  will  still  apply  if  it  ia 
established  that  at  the  time  the  transfer  is  made  the 
mortgagee  was  in  possession,  no  matter  under  what 
title.  The  Article  is  designed  for  the  protection  of  a 
transferee  who  has  been  led  by  a  mortgagee  to  believe 
that  he  is  acquiring  not  merely  mortgagee  rights  but 
a  full  proprietary  title 

No  act  of  a  life-tenant  can  be  binding  upon  the 
remainderman  who  does  not  claim  under  the  life- 
tenant  but  under  an  independent  title 

Per  Kanhaiya  Lai,  J.— Under  Art  140  of  Sch  If 
to  the  Limitation  Act,  a  remainderman  or  devisee  can 
sue  for  possession  of  immoveable  property  devised  to 
him  within  twelve  years  from  the  date  when  his  estate 
falls  into  possession 

Once  a  person  enters  into  possession  of  property  as 
a  tenant  for  life  he  cannot  hold  adversely  to  the  re- 
mainderman Similarly  adverse  possession  for  any 
length  of  time  against  a  tenant  for  life  is  ineffectual 
against  the  reversioner  or  remainderman  whose  right 
to  possession  only  accrues  on  the  death  of  the  tenant 
for  life 

Article  134  of  Sch.  I  to  the  Limitation  Act  allows 
only  a  period  of  12  years  for  a  suit  to  recover  posses- 
sion of  immoveable  property  mortgaged  and  sub- 
sequently transferred  by  the  mortgagee  for  a  valuable 
consideration,  to  be  computed  from  the  date  of  such 
transfer.  It  applies  to  cases  where  the  mortgaged 
purports  to  transfer  what  he  is  not  competent  to 
alienate,  that  is  an  interest  greater  than  that  of  a 
mortgagee,  and  it  presupposes  a  mortgage  with  pos- 
session  or  followed  by  possession  as  a  necessary  in- 
cident or  ingredient  of  it  because  a  mortgagee  who 
is  not  in  possession  cannot  transfer  possession  to 
another  or  give  what  he  does  not  possess.  If  tht 
mortgagee  acquires  possession  in  some  other  capacity, 


Vol.  92] 


GENERAL  INDEX. 


Limitation  Act— contd, 

the  transfer  of  possession  will  be  deemed  to  hare  been 
made  in  J;he  capacity  in  which  it  was  (rightly  or 
wrongly)  acquired  and  such  acquisition  cannot  be 
attributed  to  the  mortgage,  where  the  mortgage  itself 
is  a  simple  mortgage  or  a  mortgage  not  entitling  the 
mortgagee  to  possession  by  virtue  of  its  incidents  or 
terms. 

The  object  of  Art  134  is  to  protect  transferees  for 
value  who  have  purchased  an  interest  larger  than  that 
possessed  by  the  transferor  and  have  been  allowed  to 
remain  in  possession  and  enjoyment  of  such  larger 
interest  for  a  period  of  more  than  12  years  In  the 
matter  of  mortgaged  properties  so  transfeired,  it  con- 
trols Art.  148  in  the  same  way  as  it  controls  Art  140 
If  the  mortgaged  property  is  m  the  possession,  not  of 
the  mortgagee,  but  m  that  of  a  transferee  from  him 
who  claims  to  have  purchased  a  larger  interest  therein 
for  consideration,  then  neither  Art  148  nor  Art  140 
of  Sch  I  to  the  Limitation  Act  will  enable  the  mort- 
gagor or  a  reversioner  or  a  remainderman  to  redeem 
the  property  after  the  possession  of  the  transferee  has 
lasted  for  more  than  12  years  A  remainderman  who 
sues  for  the  redemption  of  a  mortgage  cannot  escape 
the  consequences  which  Art  134  prescribes  A 
NAUNIHAL  SINGH  v  ALICE  GEOROINA  SKINNER,  23  A  L 
J.  691,  AIR  1925  All  707,  47  A  803  63 

Sch.  I,  Art,  135—  Mortgage    with  possession 

—  Suit  by  mortgagee  to  recover  possession — Limita- 
tion, commencement  of— Submersion  of  land,  effect  of. 
In  the  case  of  a  mortgage  with  possession,  the  mort- 
gagor is  liable  to  deliver  possession  of  the  mortgaged 
property  to  the  mortgagee  ou  the  date  of  the  mort- 
gage, but  is  not  bound  to  do  so  until  the  mortgagee 
asks  for  or  seeks  to  enforce  his  right  to  possession  If 
the  latter  fails  to  do  so,  the  mortgagor's  possession 
cannot  be  said  to  be  that  of  a  trespasser  or  wrong-doer 
The  mortgagor's  right  to  possession,  however,  deter- 
mines on  the  date  of  the  mortgage,  and  under  Art  135 
of  Sch  I  to  the  Limitation  Act,  a  suit  by  the  moitgagee 
to  recover  possession  of  the  mortgaged  pioperty  must 
be  brought  within  twelve  years  of  such  date  Wheie, 
after  such  date  the  land  mortgaged  becomes  sub- 
merged and  is  taken  possession  of  by  the  mortgagor 
on  its  re-appearance,  the  mortgagor  will  be  deemed 
to  have  remained  m  constructive  possession  thereof 
during  the  period  of  submeision  and  time  will  be 
deemed  to  have  continued  to  run  against  the  mort- 
gagee during  the  period  of  submersion  In  any  case, 
time  having  begun  to  rim  ngamst  the  mortgagee  fiom 
the  date  of  the  mortgage,  the  subsequent  submersion 
of  the  land  would  not  have  the  effect  of  stopping  it 
L  BARKAT  v  RELU  MAL,  7  L  L  J  509,  A  I  K.  1925 
Lah.627  178 

Arts.  142, 143, 144— Assignment  of 

lease — Forfeiture     of   lease— Suit    for  possession- 
Limitation— Civil  Procedure  Code  (Act  V  of  1908) , 
$     11,     Expl     IV— Suit  by  lessee  for     renewal- 
Subsequent    suit  for   possession  by   lessor-  Adverse 
possession,  whether  can  be  pleaded 
Article  143    of  Sch    I  to   the  Limitation  Act   only 
applies  to  suits  to  enforce  reliefs  claimable  by  reason 
of  forfeiture  or  of  breach  of  condition  under  a  contract 
and  can  only  apply  to  suits  brought  against    parties 
who  have   incurred    that  forfeiture  or  committed  the 
breach 

Where,  however,  a  person  holding  under  a  lease 
containing  conditions  of  forfeiture  has  assigned  his 
right  to  another  person,  a  suit  by  the  lessor  against 
lie  assignee  for  recovery  of  property  by  reason  of 


Limitation  Act -contd. 

forfeiture  or  breach  of  conditions  in  the  lease  is  not 
governed  by  Art.  143  The  proper  Article  applic- 
able is  144  or  142,  as  the  case  may  be 

Where  an  assignee  from  a  lessee  sues  the  lessor  for 
renewal  of  the  lease  and  fails,  it  is  not  open  to  him 
in  a  subsequent  suit  by  the  lessor  to  plead  title  by 
adverse  possession  Such  a  plea  ought  to  have  been 
set  up  m  the  prior  suit  IVI  MANAVIKRAMA,  ZAMORIK 
RAJA  OP  OALICLT  v  VBMKATAGIRI  PATTAR,  23  L.  W.  58 

245 

Sch.   I,  Art.    144— Suit      based    on  title- 
Adverse    possession,    plea     of —Burden    of   proof — 
Trespassers,  independent,  whether  can  tack  possession. 
One  trespasser  cannot  add  to  his  own  possession  the 
previous  independent  possession  of  another  trespasser 
When  possession  passes  from  one  trespasser  to  another 
there  is  a  constructive  restoration,  even  if  a  momentary 
restoration,  of  the  true  owner  to    possession 

In  a  suit  falling  within  Art.  144  of  Sch  I  to  the 
Limitation  Act  the  initial  onus  is  on  the  plaintiff  to 
establish  his  title  and  he  is  not  under  an  obligation 
to  prove  his  possession  within  12  years  of  the  suit 
On  the  contrary  when  the  plaintiff  s  title  has  been 
proved  or  is  admitted,  the  burden  is  on  defendant  to 
establish  that  he  or  the  person  through  whom  he 
claims  has  or  have  been  in  possession  adverse  to  the 
plaintiff  for  over  12  years  before  the  suit  The  defend- 
ant must  also  prove  when  his  possession  became  ad- 
verse O  SUKHDEO  v  RAM  DULARI,  AIR  1926  Oudh 
313  825 

Art.  144— Suit  against  co-mortgagor 

redeeming  entire  property— Denial  of  right  to  pos- 
session unless  charge  paid — Adverse  possession — 
Limitation 

A  suit  by  a  co-mortgagor  against  another  co-mort- 
gagor who  has  ledeemed  the  entire  property  is 
governed  by  Art  144  of  Sch  I  to  the  Limitation  Act 
and  where  the  latter  denies  the  right  of  the  former 
to  enter  into  joint  possession  until  he  has  paid  his 
shaie  of  the  charge  which  the  latter  has  defrayed,  the 
possession  of  the  latter  is  adverse  and  if  it  has  con- 
tinued for  12  yeais  the  suit  is  barred  bv  limitation  L 
NARAIN  DAS  v  SARAJ  DIN,  A  I  R  1926  Lah.  238  98O 

Art.  164- CmJ  Procedure  Code  (Act 

V  of  1008),   0    V,  r   20,   0    IX,  r     13— Ex  parte 
decree,  application  to  set  aside—  Service  of  summons 
—  Substitv ted  service— Limitation— Burden  of  proof. 
Aiticle  164    of  Sch  I  to  the    Limitation    Act  pre- 
scribes a  peuod   of  thirty    days  for  an  application  to 
set  aside  an  ex  parte  decree,  and    the    terminus  a  quo 
is  the  date  of  the  decree,  or,  where  the  summons  was 
not  duly  served,   the  date  on  which  the  applicant  has 
knowledge  of  the  decree 

In  the  case  of  substituted  service  effected  by  order 
of  the  Couit,  the  summons  must  be  deemed  to  be 
duly  served  for  the  purpose  of  Art  164  of  Sch  I  to 
the 'Limitation  Act,  even  though  it  does  not  m  fact 
come  to  the  defendant's  knowledge 

Where  the  summons  is  not  duly  served  on  the 
defendant,  the  terminus  a  quo  for  an  application  to  set 
aside  an  ex  parte  decree  is  the  date  on  which  the 
defendant  hcs  knowledge  of  the  decree,  and  the 
burden  lies  upon  him  to  show  that  his  application  is 
within  time  L  DITTU  RAM  v.  NAWAB,  7  L  L  J  448; 
AIR  1925  Lah  639  272 

Art  166,    See  C.  P.    C.,  1908,  O. 

XXI,  R.  90  S67 

Art.  166,  8.  5— Civil  Procedure  Code 

(Act  Vof  1908),  0.  XXI  >  r.  W— Execution  of 


1114 


INDIAN  OASES, 


[lltt 


Limitation  Act— contd, 

— Sale,  application  to  set  asidi— Limitation*  exten- 
sion of, 

The  period  prescribed  under  Art,  166  of  Sch.  I  to 
the  Limitation  Act  for  an  application  to  set  aside  a 
sale  held  in  execution  of  a  decree  cannot  bo  enlarged 
under  the  provisions  of  s  5  of  the  Limitation  Act  L 
UMRAO  SINGH t;.  BENI  PRASHAD-MEHR  CHIND  839 

Sch.  I,  Art  177 — Appeal— Death  of  res- 
pondent— Appheaiton  to  bring  legal  representatives 
on  record — Limitation. 

Article  177  of  Sch  I  to  the  Limitation  Act,  which 
prescribes  the  period  of  limitation  for  an  application 
to  bring  on  the  record  the  legal  representatives  of  a 
deceased  respondent,  was  not  in  any  manner  affected 
by  the  passing  of  the  Amending  Act  XXVI  of  1920 
It  was  not  till  the  Amending  Act  XI  of  1923  was 
passed  that  the  period  of  limitation  prescribed  by 
Art  177  was  reduced  from  six  months  to  ninety  days 
A  ALICE  OKORGTVA  SKINNER  v  MUKARRAM  ALI  KHAN,  L 
K.  5A.C07  Civ,  A.  L  R.  1935  All  77  330 

Art,  177,  as  amended  by  Act  XXVI 

of  1020 —Limitation,    period  of—"Ditto"    meaning 

of 

The  period  of  limitation  under  Art  177  of  Limita- 
tion Act  IX  of  1908  remained  at  six  months  oven 
after  the  amending  Act  XXVI  of  1920. 

The  word  "Ditto"  opposite  to  Art  177  in  the 
Limitation  Act  of  1908  was  equivalent  to  the  woids 
"six  months'1  and  when  the  word  "Ditto"  was  allowed 
to  stand  without  alteration  after  the  amendment  of 
1920,  the  meaning  of  the  word  could  not  be  held  to 
have  been  changed.  M  SUBRAMANIA  IYER  v  SHUNMUQAM 
CRETTUR,  49  M.  L.  J  363,  22  L  W.  538,  A  1,  R  1926 
Mad  65  566 

Art.  179,8. 12  (3)- Civil  Procedure 

Code  (Act  V  of  1908],  s  109— Leave  to  appeal  to 
Privy  Council,  application  for— Limitation— Time 
spent  in  obtaining  copy  of  judgment,  whether  can  be 
excluded 

Sub-section  (3)  of  s  12  of  the  Limitation  Act  does  not 
apply  to  an  application  for  leave  to  appeal  to  His 
Majesty  in  Council  The  time  spent  in  obtaining  a  copy 
of  the  judgment  appealed  from  cannot,  therefore,  be 
excluded  in  computing  the  period  of  limitation  pre- 
scribed for  such  application  A  WILA\AII  BKCUM  v 
jHANDuMAL-MmiuLAL,  24  A  L  J  319,  A  1  K  1926 
Ail  286  897 

__, — ..—_  Art.  181  -  Civil  Procedure  Code  (Art 

V  of  1908),  s  7^-4 — Restitution  application — Limit- 
ation, operation  of 

Where  a  decree  is  set  aside  in  appeal,  and  the  order 
is  confirmed  in  second  appeal,  limitation  for  an 
application  for  restitution  runs  from  the  date  of  the 
order  in  second  appeal  and  not  from  that  in  the  first 
appeal. 

Limitation  for  a  restoration  application  is  three  years 
under  Art  181  of  Bch  I  to  the  Limitation  Act.  C 
FAZLAR  RAHMAN  v  ABDUL  SAMAD  960 

•  Art  182.    See  EXECUTION  OF  DECKER 

782 

Art.  182   (5),    See   EXECUTION    OP 

DECREE  7O9 

Art.  182  (5J— Step-in-aid  of  execu- 


tion—Assignee decree-holder — Recognition  of  assign- 

•m^nt,  application  for. 

An  assignee  decree-holder  can  apply  only  to  the 
Court  which  passed  the  decree  for  being  recognised 
M  the  assignee  of  the  decree  and  he  cannot  make  an 


Limitation  Act— concld, 

application  only  for  the  purpose  of  being  recognised 
as  an  assignee  decree-holder  His  application  must  be 
one  for  execution  and,  therefore,  if  he  does  not  t apply 
for  execution,  his  application  would  not  be  considered 
to  be  a  proper  application 

An  application  by  an  assignee  decree-holder  to  the 
Court  executing  the  decree,  stating  that  the  decree 
had  been  transferred  to  him,  and  requesting  it  to  send 
back  the  records  of  the  case  to  the  Court  which 
passed  the  decree  "for  the  purpose  of  further  conduct- 
ing the  suit"  is  a  step-m-aid  of  execution  within  the 
meaning  of  cl  (5)  Art  182  of  Sch  I  to  the  Limitation 
Act  M  AYYAVU  PTLLAI  v  VARADARAJA  PILLAI,  50  M  L. 
J  116,  A  1  R.  1926  Mad  431  77O 

Limitation  and  Code  of  Civil  Procedure 
(Amendment)  Act  (XXVI  Of  1920).  See  LIMI- 
TATION ACT,  1908,  SCH.  1,  ART.  177  330 

Madras  City  Tenants'  Protection  Act  (III  of 
1922),  SS.  2,  Cl.  (4),  3-  Lessee  of  right  -from 
Corporation  to  put  up  building  on  road  side  — 
Construction  of  pucca  building—  Long  possession — 
Issue  of  permits,  effect  of — Person  in  possession, 
whether  tenant — Compensation  on  ejectment. 

Where  the  defendant's  predecessor-in-title  was 
allowed  by  the  Corporation  of  Madras  to  put  up  a 
building  on  the  roadside  in  the  City  of  Madras  for 
the  purpose  of  selling  aerated  water  and  ice  and 
leases  for  terms  had  been  granted  and  renewed  from 
time  to  time  to  defendant's  predecessor  and  tliMi  to 
defendant,  and  two  years  before  suit,  yearly  permits 
had  been  issued  under  the  Municipal  Act  to  the  de- 
fendant to  keep  the  ice  depot  • 

Held,  that  the  defendant  was  a  tenant  within  the 
meaning  of  s  2,  rl  (4)  of  the  Madras  City  Tenants' 
Protection  Act  and  was  entitled  under  s  3,  on  eject- 
ment, to  be  paid  compensation  for  his  building 

When  a  man  has  spent  a  considerable  sum  of  money 
in  erecting  a  pucca  masonry  building  on  another's 
land,  there  is  a  legitimate  inference  to  be,  drawn 
that  he  did  so  in  the  hope  that  he  would  not  be 
evicted,  although  it  is  an  inference  which  may  be 
rebutted  by  other  circumstances,  which  show  that  he 
could  not  have  had  such  a  hope  M  KFSA\ALU  NAICKER 
v  CORPORATION  OF  MADRAS,  23  L  W  233;  50  M  L  J. 
301,  A  I  R  1926  Mad  381  1053 

Madras  Civil  Rules  of  Practice,  r.  277,  object  of 

— Pleader  application  of,  to  appear  against  former 
client— "Matter  connected  therewith"  meaning  of — 
Wrong  order  by  misinterpretation  of  rule — Revision. 
Order  III,  r  4,  C  P  C  ,  does  not  give  an  absolute 
right  to  a  Pleader  to  appear  in  a  Court  till  the  termi- 
nation of  the  proceedings,  but  only  provides  in  what 
manner  a  Pleader  competent  to  appear,  plead  and  act 
should  bo  appointed  and  till  what  time    the  appoint- 
ment   will  be    in   force.    If  he    is  not    competent    to 
appear,  plead    and  act    in    any  Court  under  the  rules 
governing    the  procedure    in  that    Court,  he    cannot 
claim  right  of  audience  by  virtue  of  0.  1IT,  r.  4. 

A  Pleader  can  appear  for  a  party  whose  interest  is 
opposed  to  that  of  the  party  for  whom  he  had  acted, 
drawn  up  pleadings  or  appeared  in  the  same  pro- 
ceedings, only  with  the  latter 's  consent  or  when 
specially  authorised  by  the  Court. 

Rule  277  of  the  Madras  Civil  Rules  of  Practice  is 
intended  to  regulate  the  proceedings  in  Courts  and  a 
practitioner  of  the  Court  has  to  eonionn  to  the  rules 
governing  its  procedure. 


Vol  08] 


GENERAL  INDEX. 


1115 


Madras  Civil  Rutes  of  Practtoe-oonold, 

The  object  of  r.  277  is  not  to  save  the  Pleader  from 
fi  suit  for  damages  by  the  party  for  whom  he  acted 
and  against  whom  he  subsequently  acted,  but  to  pre- 
vent an  unreasonable  conduct  on  the  part  of  both  the 
Pleader  and  the  client 

A  Pleader  who  has  acted  for  a  party  to  a  suit  and 
has  discharged  himself  cannot  afterwards  act  for  the 
opposite  arty  and  the  Court  has  power  to  restrain 
him  from  doing  so  on  an  application  made  for  that 
purpose. 

The  words  "in  any  matter  connected  therewith"  in 
r.  277  mean  connected  with  the  suit  or  appeal  or  other 
proceeding  in  which  the  Pleader  gave  the  advice  and 
does  not  refer  to  a  subsequent  suit,  or  appeal  or  pro- 
ceeding after  the  termination  of  the  former  suit, 
appeal  or  pi  oceed mg,  where  the  causes  of  action  in 
the  two  are  different 

The  subsequent  suit  or  proceeding  or  matter  can  be 
said  to  be  connected  with  the  previous  suit  or  proceed- 
ing or  matter  only  if  the  foimer  flows  from,  or  in 
consequence  of,  the  previous  suit  or  proceeding. 
Otherwise  there  is  no  connection  at  all 

It  is  not  the  identity  of  the  subject-matter  that 
establishes  the  connection  between  the  two  suits  or  the 
identity  of  the  parties  but  the  identity  of  the  right  or 
title  that  is  asserted  or  denied  and  the  relief  claimed 

Where  a  Court  by  a  wrong  interpretation  of  r  277 
refuses  to  allow  a  practitioner  to  appear  against  a 
client  for  whom  he  is  alleged  to  have  acted  on  a 
former  occasion,  it  exercises  a  jurisdiction  not  vested 
in  it  by  law  and  the  order  is  revisable  by  the  High 
Court  M  VEERAPPA  CHETTIAR  v  SUNDARESA  KASTRIGAL, 
49  M  L  J,  366,  48  M  676,  22  L  W  606,  AIR  1925 
Mad  1201  300 

Madras  District  Municipalities  Act  (V  of  1884), 
S,  261— Suit  against  Municipal  Council  for 
declaration  of  title  to  land—  Notice,  whether  neces- 
sary 

Defendant  Municipality  sent  a  notice  to  the  plaintiff 
informing  him  that  he  had  no  right  to  a  certain  piece 
of  land  and  that  he  should  establish  his  right  bv  suit 
The  plaintiff  thereupon  instituted  a  suit  against  the 
Municipality  for  a  declaration  of  his  title  to  the 
land 

Held,  that  the  suit  was  not  one  on  account  of  any 
act  done  by  the  Municipality  within  the  meaning  of 
s  261  of  the  Madras  District  Municipalities  Act  and 
that  no  notice  was,  therefore,  necessary  to  be  served 
on  the  defendant  under  that  section  M  Mi  NICIPAL 
COUNCIL,  KOCHINTV  PRATATH  BAVUDEVUSSI,  22  L  W 
671,  A  I  R  1926  Mad  235  18 

Madras  District  Municipalities  Act  (V  of  1920) 

— Rules  for  conduct  of  Elections,  r  2  (2)  —Nomination 
paper — Signature  by  agent  of  candidate ,  validity    of 
— Acceptance    of  nomination    paper    by   Returning 
Officer— Misconstruction    of     ndes  -Revision — Civil 
Procedure  Code  (Act  V  of  1908),  s  lit 
Under  r     2  (2)  of  the  Rules    for  the  conduct  of 
Elections    under  the  Madras  District  Municipalities 
Act,  it  is  the  candidate  himself  who  must  sign  the 
nomination  paper     A  nomination  papei  signed  by  an 
agent  of  the  candidate  with  his  authority  is  invalid 
The  validity  of    a    nomination  paper,  even  after  it 
had  bsen  accepted  by  the   Returning  Officer,  may  be 
questioned  after  the  election    The  Court  has,  there- 
fore, jurisdiction    to  enquire  into  the  matter  and  if 
necessary  declare  the  election  void. 

A  mera  error  in  the  construction  of  rules  by  a 
Court  sitting  to  dispose  of  em  election  petition  is  not 


Madras  District  Municipalities    Aot-1920- 

contd, 

a  ground  for  interference  in  revision  under  s.  115,  0 
P  C,bv  the  High  Court  M  DORASWAMI  NADAR  v. 
JOSEPH  L  MOTHFR,  A.  I  R  1926  Mad  319  119 

88. 1 3,  22,  Sch.  IV,  rr.  37,  60,  62— Munici- 
pal funds— Government,  power  of,  to  control  Munici- 
pal expenditure— Surcharge— Chairman,  whether 
bound  to  carry  out  illegal  orders  of  Council— Chair- 
man,  liability  of,  to  be  surcharged— Writ  of 
certiorari,  whether  available  in  respect  of  wrong 
orders  of  surcharge— Government  of  India  Act,  1915 
(5  &  6  Geo.  V,  c  61),  s  1+9— Government  order  signed 
by  Secretary,  Ministry  of  Local  Self 'Government, 
validity  of 

Under  r  37,  Sch  IV  to  the  Madras  District  Munici- 
palities Act,  the  Government  has  the  power  to  control 
the  expenditure  of  Municipal  funds  by  passing  special 
orders  prohibiting  certain  expenditure  and  expendi- 
ture incurred  contrary  to  such  orders  is  contrary  to 
law  and  illegal,  and  a  Local  Fund  Auditor  is,  there- 
forp,  entitled  to  surcharge  the  same  on  the  person 
making,  or  authorising  the  making  of,  such  expendi- 
ture under  r  60  (1)  of  Part  II,  Sch  IV  to  the  Art 

A  Municipal  Council  decided  to  introduce  the 
national  system  of  education  in.  all  institutions  under 
its  management  but  the  Government  at  the  same  time 
by  ordei  prohibited  the  use  of  Municipal  funds  for 
the  maintenance  of  any  school  not  recognised  by 
Government  The  Municipal  Council  thereupon 
resolved  not  to  apply  for  fresh  recognition  as  to 
schools  controlled  by  them 

Held,  that  cheques  issued  by  the  Chairman  of  the 
Council  upon  Municipal  funds  for  the  purpose  of 
maintaining  such  schools  amounted  to  the  illegal 
expenditure  of  Municipal  funds,  and  that  the  Chair- 
man was,  therefore,  liable  to  be  surcharged  m  respect 
of  the  amount  of  cheques  so  issued  by  him 

An  order  of  the  Government  signed  bv  the  Secretary 
to  Government,  Ministry  of  Local  Self-Government,  is 
none-the-less  an  order  of  the  Governor-m- Council 
under  r  37  of  Sch  IV  to  the  Madras  District  Munici- 
palities Act  and  in  any  case  by  virtue  of  s  49  of  the 
Government  of  India  Act,  an  objection  to  the  legality 
of  Government  orders  on  the  ground  of  informality 
cannot  be  entertained  by  Civil  Courts 

Sections  22  and  13  of  the  Madras  District  Munici- 
palities Act  should  be  read  together  and  subject  to  the 
limitation  imposed  by  r  37,  Sch  IV  to  the  Act,  and  a 
Municipal  Chairman  is,  thei  ef ore,  not  bound  to  carry 
out  illegal  resolutions  of  the  Council 

The  remedy  by  issue  of  writ  of  certiorari  is  not 
available  m  lespect  of  wrong  or  illegal  order  of 
sui charge  made  under  tbe  Madras  District  Munici- 
palities Act,  since  a  substituted  remedy  therefor  has 
been  provided  by  r  62  of  Sch  IV  to  the  Act. 

Tei  Madhavan  Nair,  J  —Writs  of  certiorari  are  not 
ganerally  granted  when  othei  equally  efficacious  re- 
medies exist  under  the  law  for  the  satisfactory  redress 
of  the  grievances  complained  of  M  MAHAMMAD  RAZA 
SAHEBBKLGAMI  v  SADASIVA  RAO,  49 M  49,  A.  L  R.  1926 
Mad  297  918 

8,249,  Sch.  V,  cl.    (0)- "Grain"    whether 

includes  rice  and  broken  rice 

The  word  "grain"  in  cl  (o)  of  Sch.  V  to  the  Madras 
District  Municipalities  Act  does  not  include  rice  and 
broken,  rice  M  MUNICIPAL  COUNCIL  v  SHUNMUGHA 
MOOPANAR,  (1925)  M  W  N  880;  23  L,  W,  31;  A.  I  R. 
1926  Mad.  251;  49  M,  219  610 


1116 


INDIAN  CASES, 


[192fl 


Madra*  District  Municipalities   Act  -1920- 

concld, 


-  8,  249,    SOU.  V,    ol. 

meaning    of—Collection  of     handlooms,    whether 

machinery. 

The  "machinery1*  contemplated  by  Sch.  V,  cl.  (g) 
of  the  Madras  District  Municipalities  Act  is  machinery 
worked  by  power  such  as  steam,  water,  or  electrical 
power,  and  the  word  must  be  confined  to  such  forms 
of  machinery  as  may  reasonably  be  held  to  be  in  the 
game  category  as  combustibles,  and  unwholesome  or 
dangerous  trades. 

Machinery  worked  by  hand  such  as  handlooms  or 
sewing  machines  is  excluded  from  the  scope  of  s.  249 
of  the  Act. 

A  collection  of  maggoms  is  not  "machinery"  within 
the  meaning  of  Sch.  V,  cl.  (g)  of  the  Act  and  no 
license  is,  therefore,  required  to  be  taken  under  s.  249 
of  the  Act  for  using  the  same.  M  A  LAM  PATH  KRISHNAN 
-v.  MUNICIPAL  PROSECUTOR,  23  L.  W.  413;  27  Or  L  J. 
361,  A.  I.  R.  1926  Mad  430;  (1926)  M.  W.  N.  463  873 

Madras  Estates  Land  Act  (I  of  1908),  s.  2  (3) 

—  Post    settlement   inarn,   whether  estate  —  Inamdar, 
whether  land-holder—  Second  appeal—  New  case. 
The  consideration  that  a  person  is  the  owner  of  both 

the  varams  ia  material  in  determining  the  applicabil- 
ity of  the  Madras  Estates  Land  Act,  only  where  the  land 
is  a  whole  inam  village  and  an  enfranchised  inam 

Where  a  post  settlement  inam  is  a  whole  village 
held  on  a  permanent  under-tenure,  the  case  falls 
under  s.  2  (3)  (e)  of  the  Madras  Estates  Land  Act 

Where  in  a  suit  by  a  tenant  claiming  to  be  a  ryot 
under  the  Madras  Estates  Land  Act  to  set  aside  an  alleg- 
ed sale  of  his  holding  against  an  inamdar,  the  plaintiff 
and  the  defendant  both  in  the  Trial  Court  and  in 
the  Court  of  Appeal  proceed  on  the  footing  that 
the  plaintiff  was  a  ryot  and  the  defendant  a  land- 
holder, it  is  not  open  to  the  defendant  in  second 
appeal  to  contend  that  he  (the  defendant)  was  a  ryot 
and  that  the  plaintiff  was  an  under-tenant  under  him 
and  that  the  Madras  Estates  Land  Act  was  not  applic- 
able as  between  them  M  BHUNJANGA  RAO  v.  FFRIYA- 
THAMBI  GOUNDAN,  A.  I  R,  1926  Mad,  635  1047 

----  8.  3  (2)  (d)  —  Villages  in  hilly  tracts,  grant- 

ed in  inam  whether  estate 

Where  a  number  of  villages  in-  hilly  tracts  were 
granted  in  inam  and  there  was  no  evidence  to  show 
either  that  only  the  revenue  of  the  hills  was  granted 
or  that  the  grantee  did  not  own  the  kudivaram* 

Held,  per  Ramesam,  J  ,  that  the  villages  did  not 
constitute  an  "estate"  within  the  meaning  of  s  3  (2)  (d) 
of  the  Madras  Estates  Land  Act.  M  THANAPPA  CHETTY 
v.  EsupKiiAN  SAHIB,  23  L.  W.  36  753 

--  S.  3  (5)  —  Land-holder  —  Post-settlement  inam 

—  Grant    of   both  varams  —  Grantee,   whether   land- 
holder—Occupancy rights  -,    acquisition    of  —Grant  in 
inam    and    perpetual     lease   on    favourable     rent, 
distinction  between  —  Wastelands  —  Inam  grant,  whe- 
ther can  be  made. 

Although  the  grant  of  a  post-settlement  inam  com* 
prises  both  the  varams,  the  grantee  is  a  land-holder 
and  a  ryot  under  him  can,  therefore,  claim  occupancy 
rights,  out  where  the  grant  is  of  the  kudivaram  alone, 
the  grantee  is  merely  a  ryot  and  his  under-tenant 
cannot  claim  rights  of  occupancy. 

The  distinction  between  a  grant  in  inam  and  a 
perpetual  lease  on  £  favourable  rent  is  a  real  though  a 
nxxe  one, 


Madras  Estates  Land  Act-6oncld, 

Per  Venkatatubba  Rao,  J.— It  cannot  be  laid  down 
that  an  inam  grant  of  waste  land  is  in  law  im  possible 
M  CHINTALAPATI  BUTCHI  SEBTAYYA  GAKU  v,  GOLLAVILLI 
APPADU,  A.  I,  R.  1926  Mad.  526  814 

83,  1 1 2, 1 89-  -Ryotwari  holding—Rent  sale-~ 

Suit  by  real  owner,  maintainability  of. 

The  real  owner  of  a  ryotwari  holding  can  sue  in  a 
Civil  Court  for  a  declaration  that  certain  lands  belong 
to  him  and  that  a  sale  thereof  held  under  the  provi- 
sions of  the  Madras  Estates  Land  Act  is  fraudulent, 
invalid  and  not  binding  on  him.  Such  a  suit  is  not 
barred  by  the  provisions  of  s.  189  of  the  Madras  Estates 
Land  Act  M  SEETHARAMA  NAIDU  v.  GOVINDASAMI 
OHETTIAR^S  L.W  149,  (1926)  M  W.  N.  162;  A.I  R. 
1926  Mad  352  976 

88.131,189,  192,  Ch.  VI— Civil  Procedure 

Code  (Act  V  of  1908),  0.  XXL  rr.  89,  92— Sale  of 
holding — Application  to  set  aside  sale,  rejection  of 
—  Suit  to  set  aside  sale,  maintainability  of— Juris- 
diction of  Civil  Courts. 

Civil  Courts  have  jurisdiction  in  all  cases  in  which 
they  would  have  had  jurisdiction  prior  to  the  passing 
of  the  Madras  Estates  Land  Act,  except  in  so  far  as 
jurisdiction  is  expressly  or  by  necessary  implication 
taken  away  by  the  provisions  of  s.  189  of  the  Act. 
A  Civil  Court  has  jurisdiction  to  entertain  a  suit 
by  a  ryot  to  set  aside  a  sale  of  his  holding  held  under 
the  provisions  of  Ch.  VI  of  the  Madras  Estates  1  ^and 
Act.  The  fact  that  an  unsuccessful  application  had 
been  made  by  the  ryot  under  s.  131  of  the  Act  to  set 
aside  the  sale  makes  no  difference  M  MAHALINGA 
NAICKBR  v  VELAYA  NAICKER,  22  L.  W  794;  (1925)  M  W. 
N  881;  A  I.  R.  1926  Mad.  190;  48  M.  490  412 

s.  1 51  — Ejectment — Agricultural    land— Sale 

by  ryot  for  building  purposes — Actual  building  only 

on     small     portion—Value^  as agricidtural     land, 

whether  impaired — Landlord's  right  to  e}ect 

Where  a  ryot  sells  the  major  portion    of  an  agricul- 

tuial  holding  for  building  purposes  he  in    effect  oon- 

veits  the  agricultural    land  into  a  building  site,  and 

thereby  materially  impairs  the  value    of  the  holding 

for  agricultural  purposes  and  the  landlord   is  entitled 

to  a  decree  in  ejectment  under  s  151  of   the  Madras 

Estates  Land  Act     It  is  immaterial  that  on  the  date 

of  the  suit  only  a  small  portion  of  the  land  has  been 

built    upon      M   CHAXDRA   MOULESWARA   PRASAD     v. 

YADAVALLI  KAMBSWABA.  "(1925)  M.  W    N.  776;  22   L  W. 

833;  50  M  L  J.  97,  A.  I  R.  1926  Mad.  157  402 

Madras  Local  Boards  Act  (XIV  of  1920),  ss.  35, 

56  (4)— Failure  of  member  to  attend  three  con- 
secutive meetings  of  District  Board—Restoration, 
effect  of—Fresh  oath  of  allegiance,  whether  neces- 
sary— Taluk  Board  member,  election  of,  to  District 
Board— Loss  of  and  restoration  to  membership  of 
Taluk  Board,  effect  of — Election  petition — Amend- 
ment application  after  expiry  of  period  fixed,  whe- 
ther permissible. 

Where  a  member  of  a  District  Board  fails  to  attend 
at  the  meetings  of  the  Board  for  three  consecutive 
months  and  is  restored  to  office  under  a  56  (4)  of 
the  Local  Boards  Act  by  a  resolution  of  the  Board, 
he  does  not  become  a  new  member  but  is  merely 
restored  to  the  office  of  membership  for  the  balance 
of  the  period  for  which  he  was  originally  elected  and 
a  fresh  oath  of  allegiance  is,  therefore,  unnecessary. 
Where  a  member  of  a  Taluk  Board  who  has  been 
elected  to  the  District  Board  loses  his  membership 


Vol.  92J 


OENEKAJb  IJNDtiA, 


1117 


Madras  Local  Boards  Aot— 1920-concld. 

of  the  former  by  absence  for  three  consecutive 
months  and  thereby  loses  his  membership  of  the 
District  Board  also  and  is  then  restored  under  s  56 
(4)  of  the  Local  Boards  Act  to  the  membership  of  the 
Taluk  Board  by  a  resolution  of  the  said  Board,  such 
resolution  cannot  have  the  effect  of  restoring  him  to 
the  membership  of  the  District  Board  as  well. 

An  application  for  an  amendment  of  an  election 
petition  tiled  after  the  expiry  of  the  days  allowed  for 
an  objection  petition  is  not  unsustainable  and  may  in 
the  discretion  of  the  Judge  be  allowed 

Section  35  of  the  Madras  Loral  Boards  Act  is 
inapplicable  to  an  election  petition  and  cannot  cure 
defects  in  an  election  M  KANDASAMI  CHETTIAR  v.  G  F 
F.  FOULKES,  AIR  1926  Mad  396  100 


ss.  36,38,   SeeC.  P  C 


1908,  O  XXI1J,  R  ^3 
311 


Madras  Survey  and  Boundaries  Act  (IV  of 
1897),  S.  13,  applicability  of— Dispute  as  to 
boundaries,  absence  of 

In  order  to  apply  the  provisions  of  s,  13  of  the 
Madras  Survey  and  Boundaries  Act,  it  is  necessary  to 
show  that  there  was  a  dispute  before  the  boundaiy 
was  settled,  or  an  appeal  was  preferred  fiom  the 
settlement  of  the  boundary  The  meaning  of  the 
section  is  that  when  there -has  been  a  dispute  between 
parties  as  to  a  certain  boundary  line  and  that  dispute 
has  been  settled  by  a  competent  officer,  that  decision 
is  binding  and  can  only  be  set  aside  by  taking 
appropriate  steps  for  that  purpose  within  a  certain 
time  M  MUNICIPAL  COUNCIL,  COCHIN  v  PRATATH  BAVU 
DEVUSSI,  22  L,  W  671,  A  I  R  1926  Mad  235  18 

Madras  Village  Courts  Act  (I  of  1889),s.  78 

as  amended  by  Act  II  of  1920— Rules  framed  by 
Madras  Government,  rr,  18,  6!*-—  Forum,  creation  of :, 
for  deciding  disputes  as  to  election  to  panchayat— 
Suit  in  Civil  Courts  challenging  validity  of  election, 
whether  maintainable — Power  to  make  rules  to 
regulate  appointments  and  elections,  whether  includes 
power  to  appoint  Tribunal  to  decide  objections  to 
elections  —  Defect  in  qualification  of  members— 
Panchayat  Court,  working  o/. 

Where  a  public  body  has  been  created  by  Statute 
and  that  Statute  empowers  Government  to  frame  rules 
for  its  working,  it  is  open  to  the  Government  to 
create  a  forum  for  the  purpose  of  deciding  disputes 
as  to  elections  directed  to  be  carried  out  under  the 
Statute  and  thereby  to  exclude  the  jurisdiction  of  the 
Ordinary  Civil  Courts 

Under  s.  78  of  the  Madras  Village  Courts  Act,  which 
empowers  the  Governor-in-Council  to  make  rules  to 
regulate  the  appointments  or  elections  of  Presidents 
and  other  members  of  the  Panchayat  Courts,  it  is  a 
necessary  part  of  this  power  of  regulation  that 
Government  should  appoint  a  Tribunal  to  enquire 
into  and  decide  objections  to  such  elections. 

Under  r  18  of  the  rules  framed  by  the  Madras  Govern- 
ment under  s.  78  of  the  Act  objections  to  an  election  to 
a  village  panchayat  have  to  be  made  within  a  prescrib- 
ed time  to  the  Revenue  Divisional  Officer,  whose 
order,  or  that  of  the  Collector,  thereon  is  final  and  not 
liable  to  be  contested  by  suit  or  otherwise, 

A  Civil  Court  has,  therefore,  no  junsdiction  to 
entertain  a  suit  challenging  the  validity  of  such  elec- 
tions. 

Itule  64  ol  the  rules  framed  by  the  Madras  Govern- 
ment under  s.  78  of  the  Madras  Village  Courts  Act 
cowpeteacy  of  &»  proceedings 


Madras  village  Courts  Act— concld. 

of  Panchayat  Courts  despite  defects  m  their  con- 
stitution or  in  the  qualifications  of  their  members  M 
KANNURI  VENKATA  SIVA  RAO  v.  CHITTOOUI  RAMA 
KEISHNAYTA,  (1925)  M  W  N.  874,  23  L  W  103,  50  M 
L  J  148,  A  I  R  1926  Mad.  246  79O 

MallClOUS  prosecution—Damage*,  suit  to    recoier 

— Reasonable    and    probable    cause,  absence     of — 

Malice,  proof  of 

In  order  to  succeed  in  a  suit  to  recover  damages 
for  malicious  prosecution  the  plaintiff  must  prove 
malice  as  well  as  absence  of  reasonable  and  probable 
cause 

Where  a  prosecution  is  obviously  false  and  not 
instituted  in  good  faith  the  Court  will  infer  malice, 
but  where  a  prosecution  has  been  instituted  under  a 
bona  fide  belief  that  the  accused  has  committed  an 
oftence  even  though  that  belief  is  mistaken,  the  plaint- 
iff cannot  obtain  a  decree  unless  the  prosecution  was 
malicious  as  well,  even  if  enquiry  had  shown  that  no 
offence  was  committed  R  MAUNG'SET  KHAINO  v  MAUNU 
TUNNYEIN,  A  I  R  1925  Rang  221,4  Bur  L.  J  69,3 
R.82  512 

,  suit    for  damages  for— Death  of  plaintiff- 
Legal  representative,  whether  can  continue  suit 
A  suit  for  damages  for  malicious  prosecution  cannot, 
after  the  death  of  the  plaintiff,  be  permitted  to  be 
carried  on  by  his  executor  or  legal  representative  M 
PALANIAPPA  CHETTIAR  v.  RAJARAJKSWARA  SETHUPATHI,  22 
L  W  858,  50  M  L  J  34,  A  I    R   1926  Mad    243,  49 
M  208  366 

Marwat  grant,  nature  of 

A  marwat  giant  m  Oudh  is  heritable,  but  not 
transferable.  O  RAM  SHANKAR  SINGH  v  LAL  BAHADUR 
SINGH,  3  0.  W  N.  267,  A  I.  R.  1926  Oudh  277,  13  O. 
L  J.216  637 

Mesne  profits  See  C  P  G ,  1908,  s  2  (12),  0  XX, 

*  12  768 
See  C  P  0  , 1908,  0.  XXXIV  314 

— — ,  decree  for — Ascertainment  of  mesne    poflts, 

application  for,  nature  of— Dismissal  of  application, 

legality  of— Limitation 

An  application  for  the  ascertainment  of  mesne  profits 
is  an  application  m  the  suit  itself  and  the  law  of 
limitation  has  no  application  to  it,  so  long  as  the  suit 
is  a  pending  suit. 

Wnere  a  claim  for  mesne  prohts  has  been  decreed, 
an  application  for  ascertainment  of  mesne  profits 
cannot  be  dismissed,  inasmuch  as  the  dismissal  of 
the  application  would  amount  to  a  dismissal  of  the 
suit  which  has  already  been  decreed  Pat  BHATU  RAM 
MODI  v.  FOOAL  RAM,  (1925)  Pat.  357,  5  Pat.  223,  A.  I  R 
1926  Pat  141,  7  P  L  T.  340  629 

,  inquiry  as  to—Burden   of  proof — Right   to 

begin— Civil  Procedure  Code    (Act  V  of  1908],  ss  t 
(12),  111,0  XV 111,  r  L  '         h 

In  a  proceeding  for  ascertainment  of  mesne  profits, 
the  amount  of  the  profits  which  the  person  in  occupa- 
tion has  actually  received  is  a  matter  within  the 
peculiar  knowledge  of  that  person  and,  under  s.  106 
of  the  Evidence  Act  the  burden  of  proving  the 
amounts  actually  received  will  lie  on  the  person  who 
received  them,  but  the  burden  of  proving  the  profits 
that  the  person  in  occupation  might  have  received 
will  he  on  the  person  who  claims  them 

Order  XV11I,  p.  1,  0  P.  C  ,  is  applicable  to  such  a 
proceeding  by  virtue  of  s.  141  of  the  Code  and  the 
claiming  the  profits  must  udduoo  his  ' ' 


1118 


INDIAN  OASES. 


Mesne  profits— concid, 

first,  If  the  person  claiming  the  profits  adduces  no 
evidence,  no  mesne  profits  can  be  awarded  to  him  at 
all.  M  RAMAKKA  v.  NBGASAM,  47  M.  *00,  48  M.  L  J.  89, 
A.  I.  R.  1925  Mad.  145  792 

•  ••  —  • ,  suit  for — Calculation  of  profits — Burden  of 

proof — Mesne   profits,  nature  of — Civil    Procedme 

Code  (Act  V  of  1908),  s.  2 

The  onus  of  proving  what  profits  might,  with  due 
diligence,  have  been  received  in  any  year  lies  upon 
the  party  claiming  mesne  profits,  but  the  onus  of  prov- 
ing what  profits  the  person  in  wrongful  possession 
actually  received  lies  upon  the  person  in  possession 

The  best  evidence  of  the  piofits  deiivable  fiom  the 
cultivation  of  a  particular  held  in  any  given  year  is 
the  evidence  as  to  the  actual  yield  m  that  year  minus 
the  cost  of  cultivation  But  such  evidence,  m  order  to 
be  useful,  must  be  exact,  and  it  is  always  open  to  the 
party  out  of  possession  to  falsify  the  accounts  as  to 
the  number  of  measures  of  grain  gathered  at  the  har- 
vest or  the  price  prevailing  when  they  were  sold  or 
the  cost  of  cultivation,  He  may  also  adduce  evidence 
to  piove  that  the  occupant  wab  not  diligont  and  might 
have  got  greater  pruiits  by  proper  diligence 

In  the  absence  of  evidence  as  to  actual  profits,  the 
next  best  evidence  is  evidence  as  to  possible  profits,  of 
which  evidence  as  to  yield  of  similar  adjoining  lands 
in  the  year  in  dispute  is  an  example 

The  yield  of:  the  suit  lands  m  other  years  is  not 
such  a  good  guide  as  evidence  as  the  yield  of  neigh- 
bouring lands  of  similar  quality  m  the  year  in  dispute 
would  be. 

Mesne  profits  are  in  the  nature  of  damages  which 
the  Court  may  mould  according  to  the  justice  of  the 
case. 

Where  in  a  suit  for  mesne  profits,  the  story  of  the 
defendant  that  he  suffered  a  net  loss  is  incredible  or 
the  loss  is  due  to  lack  of  proper  diligence,  but  the 
plaintiff  fails  to  produce  any  evidence  himself  as  to 
the  actual  piofits,  or  the  piofits  which  might  have  been 
received  by  the  defendant  with  due  diligence,  the 
suit  must  be  dismissed.  M  MUHAMMAD  ABL/UL  GAFFUR 
V.  MUHAMMAD  SAMSUDDIN*,  47  M.  L.,  J,  730,  A,  I.  R.  1925 
Mad  297  139 

Minor— Alienation  by  de  facto  guardian— Case  in 

which  interest  of  minor  involved— Court,  duty  of. 

See  HINDU  LAW — GUARDIANSHIP  AND  MINORITY     727 

Mistake  Of  fact — Money  paid,  when  can  be  recover- 
ed—Mistake between  payer  and  third  person,  effect  of 
Where  money  is  paid  under  a  mistake  of  fact 
intentionally,  without  reference  to  the  truth  or  false- 
hood of  the  fact,  the  plaintiff  meaning  to  waive  all 
enquiry  into  it,  and  that  the  person  receiving  shall 
have  the  money  at  all  events,  whether  the  fact  be  true 
or  false,  the  latter  is  entitled  to  retain  it,  but  if  it  is 
paid  under  the  impression  of  the  truth  of  a  fact  which 
is  untrue,  it  may  ordinarily  be  recovered  back, 
however  careless  the  party  paying  may  have  been  in 
omitting  to  use  due  diligence  to  enquire  into  the  fact. 
The  mistake  must,  however,  be  one  as  between  the 
person  paying  and  the  person  receiving  the  money  and 
as  to  some  fact  affecting  the  right  of  the  payee  to 
receive  the  money.  R  CHINA  v.  TB  THOE  SBNG,  3  R.  477, 
A.  I,  R.  19*6  Rang,  14  233 

Mortgage. 
See  ALSO  ft)  0.  P.  0.,  1908,  0.  XXXIV. 

(it)  TRANSFER  OF  PROPERTY  ACT,  1882,  as.  58 
TO  104 

~ *  Comortgagors— Suit  Against  one  redeeming. 

See  LIMITATION'  ACT,  190$,  SCK,  I,  ART,  144         980 


Mortgage— contd, 

Deed,  simple,  executed  by  mortgagor  in  favour 

of  mortgagee — Mortgagor,  heirs  of,  whether  bound. 
A  simple  deed  executed  by  the  mortgagor  in  favour 
of  the  mortgagee  and  containing  the  stipulation  that 
the  money  taken  under  it  shall  be  paid  at  the  time  of 
the  redemption  of  the  mortgage  can  be  enforced 
against  the  heirs  of  the  mortgagor.  0  RAISUNNISA  v. 
ZORAWAR  SAH,  3  O.  W.  N  J21,  13  0.  L  J.  10;  A  I.  K 
1926  Oudh  228  675 

Foreclosure —Bengal  Land  Redemption    and 

Foreclosure  Regulation  (XVII  of  1806)  -  Punjab 
Land  Revenue  Act  (XVII  of  1887),  s.  M— Revenue 
Records,  entry  in — Presumption  —Redemption  suit — 
Burden  of  proof 

Where  in  the  case  of  a  mortgage  comprising  a 
stipulation  by  way  of  conditional  sale,  the  mortgagee 
purports  to  take  foreclosure  proceedings  and  .1  muta- 
tion is  thereafter  recorded  in  the  Revenue  Kecords 
showing  that  the  mortgagee's  rights  have  been  con- 
verted into  full  proprietary  rights,  the  buiden  is 
nevertheless  upon  the  mortgagee,  in  a  suit  for  redemp- 
tion brought  by  the  mortgagor,  to  prove  that  his 
mortgage  right  has  been  converted  by  foreclosure  pro- 
ceedings in  accordance  with  law  into  a  full  proprie- 
tary right.  The  only  onus  thrown  upon  the  plaintiff 
in  such  a  case  is  to  show  that  there  was  a  mortgage 
and  that  it  was  granted  within  bixty  yeais  of  suit.  Once 
this  is  established,  it  would  rebut  the  prima  facie 
presumption  of  coriectness  of  the  Revenue  Record 
entry,  and  the  onus  would  then  be  on  the  defendant 
to  show  that  the  revenue  entry  is  in  fact  correct  and 
that  there  was  a  proper  and  legal  foieclosure,  L 
RULDU  RAM  v.  SURATN  SINGH,  7  L,  L.  J.  618,  A.  I.  R. 
19-'6Lah  120  531 
Grove  planted  by  mortgagee— Accession-- 
Right of  mortgagor  to  grove. 

Where  a  mortgagee  in  possession,  without  the 
consent  of  the  mortgagor,  plants  a  grove  which  is  not 
necessary  for  the  preseryat ion  of  the  piopeity  and  of 
which  separate  possession  is  not  possible,  the  mort- 
gagor is  entitled  to  possession  of  the  grove  un- 
conditionally. O  JAHANGIR  v.  RAM  HARAKH,  13  0.  L  J 
243  262 

Interest  charge 

A  mortgagee  is  entitled  to  treat  interest  due  under 
a  mortgage  as  a  charge  upon  the  property  in  the 
absence  of  a  contract  to  the  contrary  and  to  refuse  re- 
demption unless  it  is  included  in  redemption  price* 
L  LADHA  UINGH  v.  SUNDAR  SINGH  762 

Of  moveable   property— Sale  of  property  in 

execution  of  decree  against  mortgagor— Mortgagee^ 
whether  entitled  to  follow  property  in  hands  of 
purchaser. 

A  mortgagee  of  moveable  property  is  not  entitled  to 
follow  the  mortgaged  property  into  the  hands  of  a 
purchaser  who  has  purchased  tne  property  at  a  sale  in 
execution  of  a  decree  against  the  mortgagor.  R 
NACHIAPPA  CHBTTIAR  v.  MAHOMED  HABIR  KHAN,  A.  I.  R* 
1925  Rang  303;  4  Bur.  L.  J.  135  370 

Prior  and  subsequent  mortgages— Redemption 

— Interest,  whether  must  be  paid  along  with  principal 
— "Girwi,"  whether  means  usufructuary  mortgage. 
The  meaning  of  the  word  "girwi"  is  not  restricted 
to  a  usufructuary  mortgage. 

A  deed  of  second  mortgage  recited  the  first  mort- 
gage and  declared  that  the  mortgagor  should  not  be 
entitled  to  redeem  the  first  mortgage  without  dis- 
charging the  second  loan  also: 

Held,  that  the  aecond  mortgage  was  in  the  nature 
ai  »a  additional  mortgage,  hypothecating  &*  .pro- 


Vol. 


GENERAL  INDEX. 


1119 


Mortgage  -coneld. 

perty  and  that  the  mortgagor  was  not  entitled  to 
redeem  the  first  mortgage  without  at  the  same  time 
discharging  the  second. 

A  deed  of  second  mortgage  recited  the  amount 
borrowed  and  the  rate  of  interest  and  then  stated  that 
"this  money"  shall  be  paid  when  the  amount  due  on 
the  prior  mortgage  is  paid  and  the  prior  mortgage  is 
redeemed  There  was  no  stipulation  that  the  interest 
was  to  be  added  to  the  principal,  and  permission 
was  granted  to  the  mortgagee  to  sue  for  interest 
separately 

Held,  (1)  that  the  expression  "this  money11  in  the 
deed  included  the  principal  money  togethei  with 
interest, 

(2)  that  the  permission  granted  to  the  mortgagee 
to  sue  for  interest  sepaiately  was  an  additional  pri- 
vilege granted  to  the  mortgagee  and  that  he  was  not 
bound  to  sue  separately  foi  interest , 

(3;  that  the  mortgagor  was,  therefoie,  bound  to  pay 
the  entire  amount  of  mteiest  to  the  mortgagee  at  the 
time  of  redemption  A  SHIB  NARAIN  v  GAJADHAK,  24 
A  L  J  260  772 

Redemption—  Amount  in  dispute— Absence  of 

tender-  Dismissal  of  suit,  -whethei  justified --Interest 
— Contract  rate  excessive  —  Court,  whether  can  reduce 
interest 

Wheie  the  amount  to  be  tendered  foi  ledempticn  is 
in  dispute  the  moitgagor's  suit  for  redemption  cannot 
be  dismissed  on  the  giouiid  that  no  teudci  A\as  made 

A  Court  has  no  power  to  reduce  the  contractual 
rate  of  interest  solely  on  the  ground  that  it  is 
excessive  O  SARDA  13ux  biNGH  v  KANDHIA  Br\  665 
Redemption  by  une  of  several  mortgagers 

One  of  several  mortgagois  is  entitled  to  redeem  the 
entire  moitgage  and  by  doing  bo  lie  steps  into  the 
shoes  of  the  moitgagee  in  respect  of  the  shares  of  the 
other  mortgagoi  s  L  RAM  LABHAYA  v  KARTAR  SINGH, 
7  L  L  J  46b,  A  I  K  1925  Uh  651  261 

suit  —Consideration,    receipt  of — Burden     of 

proof —Evidence  Act  (1  of  1872),  s    102,  Illus    (b)— 
Consideration,  inadequacy  of,  ejfect  of 

Wheie  a  mortgagor  admits  the  execution  of  the 
mortgage-deed,  it  lies  upon  him  to  prove  that  the  con- 
sideration mentioned  in  the  deed  had  not  been  received 
by  him  in  full  The  mere  fact  that  he  had  been 
recklessly  borrowing  money  would  not  absolve  him 
from  discharging  the  burden  that  lies  upon  him 

An  equity  can  be  founded  upon  gross  inadequacy  of 
consideration  only  when  the  inadequacy  is  such  as  to 
involve  the  conclusion  that  the  party  either  did  not 
understand  what  he  was  about  or  was  the  victim  of 
some  imposition.  L  JIWA  RAM  v  JHANDA  SINGII.  1  L.  C 
43  346 

Muhammadan  Law—Dower,  whether  property 

The  word  "property"  as  understood  in  Muhammadan 
Law  does  not  include  res  incorporates  which  a  claim 
for  dower  is. 

The  word  "pi  ice11  in  the  definition  of  sale  in  s  54 
Transfer  of  Property  Act,  means  umoney " 

A  Muhammadan  transferring  property  in  hen  of 
dower  to  his  wife  does  not  receive  any  "pi  ice"  within 
the  meaning  of  that  word  in  s.  54,  Transfer  of  Property 
Act 

There  is  no  difference  in  principle  whether  the  pro- 
perty is  transferred  'as  dower'  or  'in  lieu  of  dower'. 
O  BASHIR  AHMAD  v.  ZOBIDA  KHATDN.  3  O.  W.  N.  105, 
A.I  R.  1926 Oudh  186  265 

• ——Gift  by  father  to  minor  son— Transfer  of 

pommon  —  Registration, 


Muhammadan  Law— contd. 

A  gift  by  a  Muhammadan  father  to  his  minor  son  is 
complete  when  the  deed  of  gift  is  completed  and 
neither  transfer  of  possession  nor  registration  of  the 
deed  is  necessaiy  to  complete  it  L  FATEH  MAHOMKI> 
v  MITHA,  A  I  K  1926  Lah  286  479 

. Gift — Hiba-bil-ewaz,  nature  of — Conveyance 

of  landed  property  for  dower —Transaction,  whether 

sale — Pre-emption^  right  of — Oudh  Laws  Act  (XVIII 

of  1876),  s  9 

A  conveyance  of  landed  property  by  a  husband  to 
his  wife  in  consideration  of  an  extinction  of  herjiowei- 
debt  is  a  gift  of  the  form  known  as  hiba-bil-ewaz  in 
Muhammadan  Law,  and  as  such  is  not  liable  to  pre- 
emption It  cannot  be  regarded  as  a  sale  attracting 
the  provisions  of  s  9  of  the  Oudh  Laws  Act 

A  hiba-bil-ewaz  is  a  \vell  recognised  mode  of  trans- 
fer of  property  in  Muhammadan  Law  A  sale  is 
equally  a  well-understood  form  of  contract  in  the 
same  law,  yet  according  to  that  law  the  legal  in- 
cidents of  each  case  differ  in  many  respects 

A  hiba-bil-ewaz  is  a  combination  of  two  recipi ocal 
gifts 

The  consideration  for  a  transaction  of  hiba-bil-ewaz 
in  Muhammadan  Law  does  not,  therefoie,  rest  meiely 
111  the  pecuniaiy  value  of  the  subject-matter  of  the 
gift  and  of  the  return  but  there  is  always  a  personal 
element  whou  the  gift  is  made  m  favour  of  one's  wife 
01  other  near  relations 

It  is  wholly  unsafe  to  deduce  a  rule  of  law  that  a 
claim  for  pie-em ption  can  he  in  respect  of  a  tian&ao 
tion  of  hiba-bil-cwaz  if  in  effect  it  amounts  to  a  sale, 
when  no  suchiule  "was  promulgated  by  the  Muham- 
madan juiists  O  BASHIR  AHMAD  v  ZUEIDA  KHATDN, 
SOWN  105,  A  I  R  1026  Oudh  186  265 

. — . _ 1  revocability  of 

When  once  a  delivery  of  possession  has  been  made 
a  gift  under  Muhammadan  Law  is  not  levocable  if 
the  conditions  of  the  gift  have  not  been  bioken  L 
HAKIM  DIN  v  QUTABDIM,  A  I  R  1926  Lah  211  264 

,  Interpretation     ,of  -Jurists,      difference 

among — Rule  applicable 

When  Muslim  Jun&ts  of  authority  express  dissent- 
ing opinions  upon  some  question,  the  Courts  are  at 
liberty  to  adopt  that  view  which  in  their  opinion  is 
most  in  accordance  with  justice  in  the  particular  cir- 
cumstances of  the  case  A  MOHAMAD  AFZAL  v  MOHAM- 
MAD MAHMUD,  24  A  L.  J  307,  A  I  R  1926  All  327 

840 

Marriage  with  wife's  sister— Issue,  whether 

legitimate — Child  bom  six  months  after  fasid  marri- 
age—Presumption of  legitimacy —Evidence  Act  (I  of 
187 t)i  s  111,  application  of 

Muhammadan  Law  does  not  place  unions,  as  English 
Law  does,  in  two  categories,  valid  and  invalid,  but 
in  three  catagones  of  void  ab  initio  (batil)  forbidden 
but  not  entirely  void  if  consummated  (asid),  and 
lastly  valid. 

Under  the  Muhammadan  Law,  the  marriage  of  a 
man  to  a  sister  of  his  existing  wife,  is  asid  but  not 
batil  Such  a  marriage,  though  invalid  for  certain 
purposes,  is  valid  for  the  purpose  of  legitimatizing 
the  issue 

Under  the  presumption  of  Muhammadan  Law,  in 
the  case  of  a  fasid  marriage,  a  child  born  on  the 
•xpiry  of  six  months  of  copula  is  to  be  regarded  aa 
legitimate. 

Section  112  of  the  Evidence  Act  cannot  be  held 
applicable  to  marriages  under  the  Muhammadaa  Law. 
A  any  rate  the  lection  cannot  hare  any 


1120 


INDIAN  OASES. 


[1926 


Muhammadan  Law— conoid. 

to  a  fasid  marriage  under  that  law.  0  KANIZA  v.  HASAN 
AHMAD  KHAN,  3  0.  W.  N.  114,  A,  I.  R.  1926  Oudh  231  82 
Restitution  of  conjugal  rights,  suit  for— 

Relief,    whether     discretionary—Restitution,     pre- 
judicial to    health  and  happiness  of  wife— Relief, 

whether  can  be  refused. 

In  the  case  of  Muhamraadans  a  suit  for  restitution 
of  conjugal  rights  is  m  the  nature  of  a  suit  for  specific 
performance  being  founded  on  a  contract  of  marriage 
which  the  Muhammadan  Law  regards  as  a  civil  one, 
The  relief  claimed  by  the  plaintiff  in  such  a  suit  is  a 
discretionary  one  and  it  is  open  to  the  Court  to  refuse 
to  grant  it  even  though  the  validity  of  the  marriage 
was  established  on  the  ground  that  its  enforcement 
would  bs  prejudicial  or  dangerous  to  the  health, 
happiness  or  life  of  the  wife.  N  KHURSHEID  BEGAM  v. 
ABDUL  RASHID,  9  N  L.  J.  11;  A.  I.  R.  1926  Nag  234  913 
"Waqf,"  meamng  of— Grant  in  perpetuity— 

"Waqf,1'  use  of,  in  deed,  effect  of 

Waqf  in  its  primitive  sense  means  detention;  but  it 
implies  detention  of  a  thing  in  the  implied  ownership 
of  the  Almighty  God  in  such  a  mannei  that  its  profits 
may  revert  to  or  b3  applied  for  the  benefit  of  man- 
kind, and  the  appropriation  is  obhgatoiy  so  that  the 
thing  appropriated  or  set  apart  can  neither  be  sold 
nor  given  nor  inherited  The  essential  condition  is 
that  it  should  be  a  settlement  in  peipetuity  or  in 
other  words,  the  ultimate  end  must  be  one  that  can- 
not fall  The  object  of  a  waqf  must  be  charitable,  or 
if  the  waqf  is  made  for  the  support  of  one's  descend- 
ants, it  must  include  an  ultimate  dedication  for 
religious,  pious  or  charitable  purposes. 

The  mere  use  of  the  word  "waqf"  m  an  instrument 
cannot  be  separated  from  the  context  so  as  to  convert 
a  personal  grant  to  a  specified  set  of  individuals  into 
a  public  disposition. 

A  deed  of  grant  provided  that  the  grantees  and 
their  grand-children,  generation  after  generation, 
should  for  ever  enjoy  the  property  except  in  so  far 
that  they  would  have  no  power  to  transfer  or 
hypothecate  the  property  or  to  grant  leases  thereof  for 
a  period  exceeding  five'years 

Held,  that  the  deed  provided  for  a  succession  of 
life-estates  without  any  ultimate  dedication  either  to 
the  poor  or  to  any  other  charitable  object  recognised 
by  the  Muhammadan  Law  and  that,  therefore,  it  did 
not  operate  to  create  a  valid  waqf  A  MUHAMMAD 
APZAL  v.  MUHAMAD  MAHMUD,  24  A.  L.  J.  307,  A.  I  R 
1926  All.  327  840 

.  —  Muttawalliship — Succession. 

Under  the  Muhammadan  Law  in  the  absence  of  any 
rules  laid  down  by  the  founder  of  the  mosque,  the 
muttawalli  for  the  time  being  may  vahdly  appoint 
a  successor  to  himself.  M  DOST  MUHAMMAD  v.  KADAR 
BATCHA,  23  L.  W.  240,  A  I  R.  1926  Mad  466  950 
Nagpur  Judicial  Commissioner's  Court,  powers 

of  revision  See  OR.  P,  O  ,  1898,  ss  435-439  851 
Negotiable  Instruments  Act  (XXVI  of  1881), 

9.  28 — Pro-note,  execution  of,  for  another — Personal 

liability  not   intended— Inducement  by   promisee- 

^Inducement  by  real  borrower. 

If  a  negotiable  instrument  does  not  set  out  clearly 
that  the  maker  is  not  personally  liable  the  fact  of  the 
knowledge  of  the  payee  that  the  executant  did  not 
intend  to  incur  personal  liability  is  irrelevant. 

Where,  however,  the  promisee  induces  the  execu- 
tant of  a  pro-note  to  sign  the  pro-note  upon  the  belief 
that  a  third  party  only,  and  not  he,  would  be  liable 
thereunder,  the"  executant  cannot  be  held  to  be 
liable, 


Negotiable  Instruments  Act— contd, 

Where  the  belief  is  induced  by  the  third  party  and 
not  the  promisee,  the  executant  cannot  escape  liabili- 
ty O  NATIONAL  BANK  OF  UPPER  INDIA  v.  BANSI  DHAR, 
3  0.  W.  N.  83,  A.  L  K  1926  Oudh  248  94 

83.  28,  29— Pro-note  executed  by  guardian 

of  minor —Personal    liability,    whether    excluded— 

Pro-note  executed  as  executor — Liability,  extent  of-  - 

Sections  28  and  29,  difference  between 

On  a  negotiable  instrument  only  the  executent  is 
liable.  The  question  that  has  in  each  case  to  be 
determined  is,  on  a  fair  construction,  who  is  the  exe- 
cutant of  the  document?  Is  the  executant  in  truth  the 
principal  although  the  agent's  signature  appears  on 
the  bill  or  is  the  executant  the  agent  although  the 
principal  is  named?  The  intention  may  be  inferred 
from  the  whole  of  the  instrument. 

Under  s.  28,  Negotiable  Instruments  Act,  an  agent 
signing  a,  pro-note  is  p?  ima  acie  liable  on  the  note 
b\it  he  may  exclude  his  liability  by  indicating  on  the 
note  that  he  signs  as  agent  or  that  he  does  not  intend 
to  incur  personal  liability  In  each  case  the  question 
is,  are  the  woids  sufficiently  unequivocal  to  indicate 
that  the  agent  has  not  made  himselt  personally  liable  v 

Section  28  of  the  Negotiable  Instruments  Act  in 
terms  applies  only  to  the  single  case  of  piincipals 
and  agents,  but  the  principle  of  the  section  is  appli- 
cable to  the  cases  of  guardians  and  wards 

Where  the  guardians  of  a  minor  who  executed  a 
pro-note  on  behalf  of  the  minor  recited  in  the  body 
of  the  note  that  the  debt  was  due  by  the  minor's 
fathor  and  that  they  were  appointed  guardians  by  him 
but  in  the  operative  part  they  made  themselves  per- 
sonally liable 

Held,  that  their  personal  liability  was  not  clearly 
and  unequivocally  excluded  and  the  executants  were 
personally  liable 

The  language  of  s  29,  Negotiable  Instruments  Act, 
is  widely  different  from  that  of  s.  28  of  the  Act. 
Firstly,  under  s  28  it  is  sufficient  to  indicate  that 
personal  liability  is  excluded,  but  under  s.  29  there 
must  be  express  words  limiting  the  liability  and 
secondly,  under  s  28  the  agent's  liability  may  be 
altogether  excluded  whereas  under  s.  29  the  execu- 
tor's liability  can  only  be  limited  to  the  extent  of  the 
assets. 

The  applicability  of  s.  29,  Negotiable  Instruments 
Act,  does  not  depend  on  the  question  whether  the 
executant  is  in  fact  the  legal  representative  of  a 
deceased  person.  It  is  enough  if  the  note  purports  to 
have  been  executed  by  the  executant  in  his  capacity 
as  legal  representative,  such  as  that  of  an  executor  of 
the  estate  of  a  deceased  person. 

A  person  who  executes  a  pro-note  as  executor  ap- 
pointed under  a  Will,  is  personally  liable  thereunder, 
unless  he  expressly  limits  his  liability  to  the  extent 
of  the  assets  received  by  him  as  such,  M  KOYYALA-* 

MUD  I    SUBBANNA  V.  KODURI     SuBBARAYUDU,   50    M,  L.    J. 

125,  A.  I.  R.  1926  Mad.  390  80S 

~  8,  76  (d)— Hundi — Presentation— -Hundi    in 

lieu  of  previous  debts  inidmissible— Original  causa 

of  action  as  basis  of  claim. 

When  one  and  the  same  person  is  the  drawer  and 
the  drawee  of  a  hundi  no  presentation  of  hundi  on 
due  date  is  legally  necessary. 

Where  a  hundi  is  executed  in  lieu  of  previous  debt* 
and  the  hundi  is  inadmissible  in  evidence  for  want  of 
proper  stamp  the  plaintiff  can  fall  back  upon  the 
original  cause  of  action.  L  FIRM  BUDHU  MA&  PASMA 
NAND  v.  GOKAU  CHANP,  8  L,  L,  J.  3;  7  L,  US  101 9 


to!.  92J 


GENERAL  INDEX. 


1121 


Notice  to  husband,  whether  notice  to  wife. 

In  India,  the  knowledge  of  a  husband  cannot  be 
treated  as  tantamount  to  the  knowledge  of  the  wife 
wh'o  is  a  pardanashin  lady  O  QAMAR  JAHAN  BEGAM  v 
MUNNEY  MIRZA,  12  0.  L  J.  313,  20.  W.  N  413,  A  I 
R  1925  Oudh  613  559 

N  U  IsanCQ— Latrine—  Test 

The  question  as  to  whether  a  latrine  constitutes  a 
•  nuisance  from  the  legal  point  of  view,  must  be  judged 
by  general  standards  on  the  principle  enunciated  in 
the  legal  maxim  lex  non  favet  votis  dehcatotum,  and 
a  particular  latrine  cannot  be  such  a  nuisance  if 
latrines  of  the  sort  are  common  all  over  the  city  N 
GOPAL  v.  KRISHNAEAO  678 

Oaths  Act  (X  Of    1873),  8.  9— Parties  agreeing  to 

abide  by  statement  of  referee  -Examination  of  referee 

— Omission — Referee,  whether  can  be  re-examined. 

There  is  nothing  in  the  Oaths  Act   which  declares 

that  once  a    referee,   by   whose  statement  the  paittea 

have  agreed  to  abide,  has  been  put  upon  his  oath  and 

has  been  examined,  he  cannot  be  re-called  and  ic-ex- 

ammed,  if  all  the   points    which   are    necessary  to  be 

established  for  the  decision  of  the  case  have  not  been 

put  to  him   A  RADHA  KISHUN  v,  KASHI  NATH,  24  A  L 

J  241,  A  1.  R  1926  All   266,  48  A  276  510 

-88.    9,   10,    11—  Revocation    of    offei    to  be 

bound  by  oath— Discretion  of  Court 

There  is  nothing  m  ss  9,  10  and  11  of  the  Oaths 
Act  which  allows  a  party  who  has  agreed  to  the  ad- 
mmistiation  of  an  oath  by  his  opponent  to  revoke  his 
offer  after  it  has  been  accepted  by  the  latter  but  the 
Court  has  discretion  to  allow  retraction  if  good 
grounds  are  shown  therefor 

When  an  oath  has  been  administered,  it  is  too  late 
for  the  Court  to  pass  an  older  allowing  its  retraction 
L  RAM  BHAJ  v  DUNI  CHAND,  A  I.  R  1926  Lah  240  813 


Official  reports.    See  PRECEDENTS 


121 


Oudh  Courts  Act  (IV  Of  1925),  S.  8,    See  INCOME 
TAX  ACT,  1922,  s  66  257 

Oudh  Laws  Act  (XVIII  Of  1876),  S.  9,    See  MUHAM- 
MAD AN  LAW— G  IFT  265 

Paper  Currency  Act  (II  of  1910),  s.  26.    See 
PRINCIPAL  AND  AGENT  81 9 

Pardanashln  lady.  See  WILL  237 

Parties— Suit  for  specific  performance     See  SPECIFIC 
BELIEF  ACT,  1877,  s  27  (c)  715 

Partltfrbn—  Reference    to  arbitration— Parties,  jomt 

possession    of- -Prayer  for    leaving  out    portion  of 

property,  effect  of 

A  reference  to  arbitration  for  partition  of  property 
amounts  to  letting  in  of  all  parties  to  joint  posses- 
sion of  the  property  to  be  partitioned 

A  pleading  m  a  reference  to  arbitration  for  parti- 
tion that  a  certain  part  of  the  property  must, 
beca\ise  of  a  pievious  decision  or  for  any  other  reason, 
bfe  allotted  to  one  share  or  the  other,  or  must  be  left 
out  of  consideration  ift  the  division,  can  scarcely  be 
celled  a  withdrawal  of  that  part  of  the  property  fiom 
the  scope  of  the  arbitration  At  the  most,  it  is  an 
attempt  to  withdraw  that  pi  ope'rty  f rom  the  scope  of 
tne  arbitration,  that  is  to  bay,  an  admission  that  it 
id  included  in  it  N  SHEOSAHAI  v.  RAMKRISHNA,  A.  I  K 
1326  Nag,  61  62 
— -  Temporary  or  permanent — Presumption — 

Burden  of  proof. 

A  division  of  property,  an  arrangement  whereby 
property  is  divided,  a  distribution,  of  property  are  all 


Partition -concld. 

exactly  the  same  as  a  partition  of  property  But  a 
partition  may  be  either  partial  or  complete  and  it  may 
be  either  temporary  or  peimaaent  In  the  great 
majority  of  partitions  of  common  property,  the  partition 
is  meant  to  be  permanent  Theiefore,  if  nothing  more 
is  known  about  a  partition  except  that  it  has  been 
mads,  it  must  be  taken  to  be  a  permanent  partition 
unless  theie  is  evidence  to  show  that  it  was  temporary. 
The  length  of  time  foi  which  a  partition  has  been 
allowed  to  stand  undisturbed  or  without  re-adjustment 
is  a  factor  which  may  be  taken  into  consideration  in 
deciding  whether  a  partition  \\as  tempo raiy  or  per- 
manent N  KESHEORAO  v  MAROTI  UAO,  8  N  L  R  227, 
A  I  k  1926  Nag  139  102 

decree     See  P]\FCUTION  OF  DECREE  400 

suit—  Practice- -^kaies  of  all  parties,  deter- 
mination of,  whether  necessary 

Ordiiidrily  in  partition  suits  it  is  the  practice  to 
declare  the  shares  of  ail  the  parties  to  the  suit  and 
to  £i\e  a  decree  accoidmgly  This  is  to  avoid  multi- 
plicity of  litigation,  and  that  is  the  reason  why  all 
the  sharers  have  to  be  made  parties  in  such  suits  It 
is  not,  however,  incumbent  upon  the  (Jouit  in.  all 
cucumstances  to  give  a  decree  in  favour  of  all  the 
co-sharers  in  a  paitition  suit 

Where  in  a  partition  suit,  the  plaintiff's  claim  to  a 
specific  bhare  in  the  property  in  dispute  is  negatived, 
and  there  is  no  issue  £01  determination  of  the  shares 
of  the  defendants  inter  sc,  the  shaies  of  the  defend- 
ants inter  w  should  not  be  deteimmid  in  the  suit. 
M  BANJOISI  NARASAMMA  />  BAVJOISI  SARASAMMA,  23  L 
W  137,  (1926)  M  W  N  163.  A  I  R  1926  Mad  353  61 
suit — Propei  ty  omitted  by  oversight — Proce- 
dure 

Whcie  in  a  partition  suit  one  of  the  properties 
which  ought  to  be  partitioned  is,  by  oversight  or  for 
any  other  reason,  left  unpartitioiied,  it  is  open  to  the 
paities  to  draw  the  attention  of  the  Couit  to  the  omis- 
sion and  to  get  a  direction  fiom  it  in  the  matter  Pat 
BALVRAM  MANJHT  v  JAUANNATU,  A  I  K  1925  Pat  760 

684 
Partnership.    See  ALSO  CONTRACT  ACT,  1872,  ss.  239 

TO  266 

t  dissolution  of — Accounts,  mode  of — Partner- 
ship moneys  appropriated  by  one  partner— Procedure* 
Wheie  a  partner  takes  moneys  of  the  parntership 
out  of  the  part nei ship  business  and  appropriates  them 
to  his  own  use,    he    must,  on    accounts    being  taken> 
bo  charged  with  the  bums  withdrawn  by  him  as  being 
paitneiship  assets  in  Ins  hands  with  mercantile  in- 
terest thereon  from  the  dates  of    withdrawal 

In  such  a  case  where  it  is  found  that  the  balance- 
of  the  cash  capital  of  the  partnership  is  not  sufficient 
to  s \tisfy  the  claims  of  the  remaining  partners  with 
regard  to  the  contributions  made  by  them  towards 
capital,  the  proper  pioceduie  is  to  appoint  a  Receiver 
of  partnership  assets,  to  direct  him  to  proceed  with 
the  collections  of  the  outstanding  debts  of  the  partner- 
ship and  to  declare  that  such  receipts  should  be  em* 
ployed  first  towards  the  discharge  of  all  outside 
liabilities,  costs  and  expenses  and  then  towards  tha 
satisfaction  of  the  respective  claims  on  capital  account 
of  the  partners  It  is  not  proper  in  such  a  case  to 
credit  the  partner  who  has  appropriated  the  partner- 
ship moneys  with  the  receipt  of  such  moneys  and  to 
requne  other  partners  to  accept  book-debts  due  to  the 
partnership  in  lieu  of  their  claims  on  the  capital 
account  P  C  NAG  Ku£«  i>.  SHAM  LAL  SAHU,  A.  I.  R, 
1925  P.  0.257;  2&  A,  L  J.  1045;  (1926;  M,  AV.  N,  10J 
P,  L.  T,  275;  23  L.  W.  628 


1122 


INDIAN  OASES, 


[1926 


Part  performance,  'doctrine    of,    applicability  of — 
bpectfic  performance,  agreement  not  capable  of,  effect 

The  doctrine  of  part  performance  has  no  applicabil- 
ity mine  case  of  an  agreement,  specific  performance 
of  which  cannot  be  had  under  law,  N  CHIMASHANI  v. 
VENKATRAO,  8  N.  L.  J.  135;  A.  L  R.  1926  Nag,  79  841 

Patents  and  Designs  Act  (II  ofl9H),  s,   26— 

Utility  and  novelty  .meaning  of— Patent  for  making 

in  one  piece. 

In  Patent  Law,  the  term  'utility'  is  not  used  in  the 
abstract  but  in  a  very  special  sense.  It  may  be  de- 
scribed as  an  invention  better  than  the  preceding 
knowledge  of  the  trade  as  to  a  particular  article. 
Mere  usefulness  is  not  sufficient  to  support  a  patent. 

for  purposes  of  novelty  in  Patent  Law.it  is  not 
enough  that^  the  purpose  is  new  or  that  there  is  novelty 
in  the  application  BO  that  the  article  pioduced  is  in 
that  sense  new,  but  there  must  be  some  novelty  in 
the  mode  of  application.  In  adopting  the  old  contriv- 
ance to  the  new  purpose,  there  must  be  difficulties  to 
overcome  requiring  what  is  called  invention  or  there 
must  be  some  ingenuity  in  the  mode  of  making  the 
adoption  To  be  new  the  novelty  must  show  inven- 
tion 

Patents  for  making  in  one  piece,  articles  previously 
made  in  two  or  more  pieces  have  generally  been  held 
invalid.  C  INDIAN  VACUUM  BRAKE  Co.  LTD  v  K  S. 
LUAED,  42  C.  L.  J,  543,  A.  I,  R.  1926  Cal  J52,  53  C. 
306  1008 

PatnaHigh  Court  Rules,  Ch.   IX,  rr.  1,  4,30— 

Paper-look,     printing    of —Registrar,  whether   can 

grant  exemption. 

Rule  30  of  Ch.  IX  of  the  Patna  High  Court  Rules 
must  be  construed  as  subject  to  rr  1  and  4  of  the 
Chapter,  and  the  Registrar  has  no  authority  to  exempt 
a  party  from  having  a  printed  paper-book  prepared  in 
a  case  Pat  TARKESHWAR  PRASAD  TEWARI  v  DEVENDHA 
PRASAD  TEWARI,  3  Pat.  L.  R.  270;  7  P.  L,  T.  267:  A.  I. 
R.  1926  Pat.  180  184 

Penal  Code  (Act  XLV  of  1860),  ss.  71, 147,  149, 

342 — Rioting  and  wrongful  confinement—  Separate, 

sentences,  legality  of 

Members  of  an  unlawful  assembly  who  attack  a 
person  and  then  take  him  and  confine  him  in  a  house 
cannot  be  given  separate  sentences  under  s.  147,  and 
a.  342  read  with  s.  149,  Penal  Code,  by  virtue  of  s.  71 
of  the  Code  C  AMIHUDDIN  v  EMPEROR,  40  0.  L  J. 
306,  A.  I.  R,  1925  Cal.  217;  27  Cr.  L.  J.  232  216 

S.  97.  See  PENAL  CODE,  1860,  s.  3U2  459 

S.  120B.  See  PBNAL  CODE,  I860, 8. 141  143 

• 8. 12 OB— Conspiracy,  ingredients  of —Overt 

act,  value  of. 

The  ingredients  of  the  offence  of  conspiracy  are;— 

(1)  That  there  should  be  an  agreement  between  the 
persons  who  are  alleged  to  conspire;  and 

(2)  that  the  agreement  should  be;  — 
(i)  for  doing  of  an  illegal  act,  or 

(ii)  for  doing  by  illegal  means  an  act  which    may 

not  itself  be  illegal. 

Conspiracy  is  a  substantive  offence  and  has  nothing 
to  do  with  abetment.  Although  an  overt  act  may  be 
specified  in  the  charge  yet  this  is  not  (except  when 
the  end  of  the  conspiracy  is  not  to  commit  an  offence) 
necessary.  The  overt  act  or  acts  is  or  are  introduced 
not  as  partially  constituting  an  offence  but  as  giving 
information  and  example  as  to  what  the  conspiracy 
was.  The  offence  is  conspiracy.  Nor  is  there  any 
limit  to  the  number  of  overt  acts  which  can  be  given 
p,  the  charge, 


Penal  Code— contd. 

It  is  not  necessary  that  each  conspirator  should  be 
aware  of  all  the  acts  done  by  each  of  the  conspirator* 
in  the  course  of  the  conspiracy. 

It  is,  however,  necessary  that  there  should  be  one 
conspiracy  and  not  a  series  of  conspiracies  and  crimi- 
nal acts  unconnected  by  unity  of  intention  S  OHANBI- 
RAM  v.  EMPEROR,  27  Cr,  L.  J  *S6,  A.  I  R.  1926  Sind  174 

83.1203,    420— Conspiracy,    charge    of, 

essential  requisites  of -Nature  of  proof—'1  Where  an 
express  provision  hat  been  made  in  the  Code  for  iht 
punishment  of  such  conspiracy  "  meaning  of , 
A  charge   of  conspiracy  in  respect  of  but  one  agree- 
ment between  several   accused  persons  to   cheat  such 
members    of  the   public  as  fhey    could    defraud    by 
deceitful  means  is  not  a  bad  charge. 

It  is  immaterial  if  all  the  accused  had  concocted  the 
scheme  of  the  conspiracy  or  that  all  of  them  should 
have  originated  it.  It  is  sufficient  if  it  originated  with 
some  of  them  and  the  others  had  subsequently  joined 
the  original  conspirators. 

The  conspiracy  may  be  proved  either  by  direct  evi- 
dence or  by  proof  of  circumstances  from  which  the 
Court  may  presume  the  conspiracy. 

The  words  "where  an  express  provision  has  been 
made  in  the  Code  for  the  punishment  of  such  a  con- 
spiracy" appearing  in  s.  120-B  of  the  Penal  Code  do 
not  mean  that  where  there  is  proof  of  an  abetment 
of  an  offence,  the  charge  should  be  for  such  abetment. 
It  is  optional  for  the  Crown  to  proceed  for  abetment 
of  an  offence  committed  in  pursuance  of  the  con- 
spiracy or  of  the  offence  of  conspiracy. 

The  inclusion  in  a  charge  of  conspiracy  to  cheat  of 
certain  specific  offences  relied  on  by  the  prosecution 
in  proof  of  the  substantive  offence  of  cheating  does  not 
render  the  charge  illegal  as  being  in  respect  of  differ- 
ent offences  specified  therein.  8  KISHANCHAND  v. 
EMPEROR,  27  Cr  L  J.  243;  A.  I.  R.  1926  Bind  171  419 

ss.  141,  120B,    149,  152,    3O2,    506— 

Criminal  Procedure  Code  (Act  V  of  1898),  ss.   196-A. 
239—Conspiracy  to  obstruct  Police  and  stop  sale  of 
certain  goods — Unlawful  assembly — Rioting — Murder 
committed    in  course  of  noting — Responsibility    of 
members    of   unlawful     assembly — Sentence—  Samt 
transaction — Joint  trial,  liability  of. 
A  large  crowd  of  men  assembled  at  a   village  and 
agreed  among  themselves  to  proceed    in  a  body  to  a 
certain  Police  Station,  there  to  threaten  and  to  obstruct 
the  Sub-Inspector  of    Police  and    the  Policemen  with 
him  in  the  discharge  of  their  duty  and  then  to  proceed 
to  a  certain  bazaar  and    stop  the  sale  of  intoxicants, 
meat,  fish,  etc.    It  was  also  agreed  that    if  the  Sub- 
Inspector  of  Police  did  not  act  in  a  certain  manner  and 
offered  resistance,  he  and   the  Policemen   with  him 
would    be    assaulted      The    crowd    then    proceeded 
towards  the  Police  Station  and  on  arrival  there  started 
an    altercation    with    the    Sub-Inspector    of    Police. 
Their  behaviour   and  attitude  was  such  that    if  they 
had  been  called  upon,  to  disperse  they  would  not  have 
done  so.    D\\ring    the    course  of  the  altercation  the 
members  of  the  crowd  began  to  throw  stones  at  the 
Police.    The  Police  then  fired,  killing   two  men  and 
wounding  several  others.    The  mob  inflamed  to  fury 
then  murdered  the  Police  Inspector  and  several  other 
Police  and  chaukidzrs.    Some  of  the  members  of  the 
crowd  were  charged  with  offences  under  ss.  120-B  and 
302  read  with  s.  149   of  the    Penal  Code  and  were 
convicted  of  the  latter  offence  at  one  trial : 

Held,  (1)  that  the  immediate  object  of  the  crowd  as 
it  reached  the  Police  Station  being  to  threaten  and  to 


GENERAL  INDEX. 


1123 


penal  Code— co&td. 

obstruct  the  Police  in  the  discharge  of  their  duty,  it 
was  an  object  to  commit  an  offence  punishable  under 
§^152  of  the  Penal  Code  which  was  in  itself  sufficient 
to  bring  the  matter  within  the  purview  of  the  third 
clause  of  s.  141  of  the  Code  and  that  consequently  the 
crowd  formed  an  unlawful  assembly  when  they  started 
from  the  village ; 

(2)  that  the  agreement  arrived  at  between  the  mem- 
bers of  the  crowd  to  stop  the  sale  of  intoxicants,  meat, 
fish,  etc  i  in  the  bazaar,  under  the  circumstances,  was 
an  agreement  to  commit  an  offence  under  s   506  of  the 
Penal  Code  and  that  for  this  reason  also  the  crowd  wna 
an  unlawful  assembly  within  the  meaning  of  s  141  of 
the  Code ; 

(3)  that  as  soon  as  stones  began  to  be  thrown  at  the 
Police  by  the  members  of   the   crowd  at    the  Police 
Station,  the  members  of  the  unlawful  assembly  became 
guilty  of  rioting  and  that  in  view  of  what    happened 
subsequently  the  charge  under  s  302  read  with  s  149 
of  the  Penal  Code  was   fully   established  as    against 
every  one  of  the  accused  persons  who  was  proved  by 
evidence  to  have  continued    an  active  participant  in 
the  ripting  after  the  moment  when  stones  began  to  be 
thrown,  unless  it  could  be   inferred  from  credible  evi- 
dence that  a  particular  accused  person  had  separated 
himself  from  the  rest  before  the  offence  of  murder  had 
been  committed  by  any  of  them  , 

(4)  that  having  regard  to  the  fact  that  the  majority 
of  the  accused  were  ignorant  peasants  who  had  been 
drawn  into  the  affair  by  misrepresentation  of  facts  and 
preposterous  promises  concerning  the  millennium  of 
Swaro,),  the  arrival  of  which  was  to  be  forwarded  by 
courage  and  resolution  on  their  part,  those  of  them 
against  whom  specific  acts  such  as  would  have 
resulted  in  their  conviction  on  a  charge  of  murder 
apart  from  the  special  provisions  of  s  149  of  the  Penal 
Code,  were  not  proved,  did  not  deserve  the  exti  erne 
penalty  of  death  and  should  be  sentenced  to  trans- 
portation for  life  only, 

(*)  that  the  charge  against  the  accused  being  that 
the  events  which  occurred  at  the  Police  Station  follow- 
ed upon  the  alleged  criminal  conspiracy  arrived  at 
between  the  accused  at  the  village  and  were  so  con- 
nected therewith,  not  merely  by  sequence  of  time  but 
by  the  link  of  causation,  as  to  make  the  conspiracy 
at  the  village  and  the  subsequent  assault  on  the  Police- 
men at  the  Polics  Station  parts  of  the  same  transac- 
tion, within  the  meaning  of  that  expression  in  s  239 
of  the  Or  P.  O ,  the  joint  trial  of  the  accused  was 
perfectly  justified , 

'  (6)  that  in  order  to  decide  whether  the  joint  trial  of 
the  accused  was  or  was  not  legal  the  Judge  had  to 
look  to  tha  case  for  the  prosecution  as  set  forth  in  the 
charges  themselves  and  that  it  was  not  necessary  for 
him  to  consider  what  the  position  would  be  if  he 
eventually  came  to  the  conclusion  either  that  no 
offence  punishable  under  s  120-B  was  committad  by 
any  of  the  accused  or  that  if  any  offencs  was  so  com- 
mitted it  was  one  excluded  from  his  cognizance  by 
s.  196-A  of  the  Gr  P  C 

Whatever  may  be/said  m  defenca  of  peaceful  picket- 
ting  when  undertaken  in  the  market  of  a  large  town 
by  individuals  or  by  small  groups  of  earnest  and 
enthusiastic  men  or  women,  has  no  application  what- 
ever to  the  flooding  of  a  small  bazaar  by  a  body  of 
men  whbse  mere  presence  there  would  put  a  stop  to 
all  business  which  could  only  be  carried  on  with  their 
consent  and  with  their  active  assistance. 

In  every  case  of  a  conviction  on  a  charge  of  murder 
{fee  law  ragards  the  sentence  of  death  as  the  normal 


Penal  Code— contd. 

and  the  appropriate  sentence  Where  the  Court 
sees  fit  to  pass  the  lesser  sentence  of  transportation 
for  life  it  must  record  its  reasons  for  so  doing  A. 
ABDULLMIV  EMPEROR,  A  1  11  W24  All  233,  57  Or  L. 
J  193  145 
S3, 141, 143 — Unlawful  assembly,  what  as — 

Common  object— Meeting  for  deliberation 

An  assembly  cannot  be  <m  unlawful  assembly  within 
the  meaning  of  s  141  of  tlie  Penal  Code  unless  the 
common  object  of  the  persons  composing  the  assembly 
falls  within  one  of  the  live  classes  described  in  that 
section 

For  the  purposes  of  s  141  of  tho  Penal  Code  the 
"common  object"  must  denote  a  common  object  then 
and  there  as  an  assembly  to  take  action,  and  it  canaofc 
be  held  that  there  was  such  a  common  object  because 
tho  members  of  the  assembly  agreed  at  some  uncertain 
futuie  date  to  take  individual  action 

Wheiathe  membeisofan  assembly  merely  agree 
a«i  to  what  they  should  individually  do,  when,  in  the 
casa  of  each  person  sepaiately,  a  demand  is  made  for 
the  payment  of  a  oartam  tax,  tho  assenibly  does  not 
come  within  the  definition  of  an  unlawful  assembly 
as  laid  down  in  s  141  of  the  Penal  Code  R  EMPEROR  v. 
NoATuNfMAaNO,  A  I  R  1925  Rang  3G2,  4  Bur  L  J. 
169,  27  Cr  L  J  337  849 

SS.  147,    149,  323— Unlawful   assembly — 

Injuries  inflicted     by      members  -Rioting— Hurt — 

Convictions  for  separate    offences,  legality  of 

Section  149  of  the  Penal  Code  creates  no  substan- 
tive offonce  in  itself  It  is  mcieiy  deolaiatory  of  the 
law  and  makes  a  poison  who  has  been  a  member  of 
an  unlawful  assembly  liable  for  the  offences  com- 
mitted by  any  other  member  of  it  But  s  147  of  the 
Tods  creates  a  substantive  ofTence  in  itself  and  makes 
a  person  guilty  of  the  offence  of  rioting  as  distinct 
from  actually  causing  anymjuiyoi  hint  Similarly 
s  323  of  tho  Code  creates  a  distinct  offenco  in  itself 
Where,  therefore,  more  injiuies  than  one  are  caused 
by  ths  members  of  an  unlawful  assembly  they  can  be 
convicted  of  offences  both  under  s  147  and  under 
s  323,  read  with  s  149  of  the  Penal  Code  In  such  a 
case,  as  soon  as  tho  in  st  injury  is  caused  to  any 
person,  fore 3  is  usocl  and  the  offence  of  noting  is 
complete  Subsequent  injuries  though  inflicted  m 
pursuance  of  the  same  common  object  would  be  dis- 
tinct injuries  justifying  a  conviction  under  s.  323. 
A  CHHIDDA  v  EMPBROR,  24  A  L  J.  178,  27  Cr  L  J. 
237,  AIR  1926  All  225  463 
-  SS.  147,  149,  332—  Constable  interfering 

with  wrestling  match— Assault  on  members  of  Police 

force—Rioting— Sentence 

One  of  the  Constables  doputed  to  keep  order  at  a 
wrestling  match  interfered  with  the  wrestling,  where- 
upon S3veral  mambsrs  of  the  audience  set  upon  the 
members  of  tha  Police  fores  pressnt,  hustled  them  and 
tore  thoir  uniforms 

Held,  (1)  that  th<3  assulaats  of  the  Constables  were 
guilty  of  offends  under  ss.  147  and  332/149,  Penal 
Cods, 

(2)  that,  in  tto  cuu  i  n stands  of  the  case,  severe 
sentences  wors  not  called  for  A  MIRAN  v  EMPBROB. 
23  A  L  J,  1027;  A  I  R  1D2J  All  168,  27  Cr  L  J  240 

224 
— _^l$. 148,  302 Rioting—  Deadly  weapons— 

Death  caused  by  bio  M  3— Offence. 

Acou33d,  fivo  in  numb 3i\  assembled  at  a  canal  water- 
h<*ad  to  divert  water  by  force  and  armed  themselves 
with  deadly  weap^aa  tostnis  and  vanquish  anybody 


1124 


INDIAN  CASES. 


Penal  Code— contd. 

who  should  stand  in  their  way  and  prevent  them  from 
accomplishing  their  purpose.  The  party  of  the  deceased 
remonstrated  with  the  accused  whereupon  the  accused 
assaulted  them  with  their  weapons  and  caused  the 
death  of  the  deceased. 

Held,  (1)  that  the  accused  constituted  an  unlawful 
assembly  and  became  guilty  of  rioting  when  they 
used  their  weapons  in  pursuance  of  their  common 
object, 

(2)  that  as  every  one  of  the  accused  knew  that  the 
weapons  were  likely  to  be  used  with  deadly  effect, 
they  were  all  responsible  for  the  fatal  injury  inflicted 
on  the  deceased  L  HARI  SINGH  v  KMPKROB,  7  L  L, 
J.  576;  A.  L  R.  1926  Lah  4,  27  Cr.  L.  J  233  217 

SS.  149, 152.    See  PENAL  Com:,  1860,  s.  1U 

145 

S,  173— Criminal  Procedure    Code  (Act    V 

of  1898),  s    160~~Noticeto  attend  enquiry,  refusal 

to  accept — Intentionally  preventing  service — Offence. 

Kef  usal  to  accept  a  notice  issued  by  a  Police   Officer 

under  s.   160,   Cr    P    C  ,  requiring  attendance  at  an 

enquiry  does  not  amount  to  an  offence    under  s.    173 

of  the  Penal  Code.    A  BAHADUR  v  EMPEROR,  24  A.  L  J 

315,  27  Cr.  L.  J.  284;  AIR  1926  All.  301  460 

S3.  179,   193— Criminal     Procedure    Code 

( Act  V  of  1898),  s    1+80 -Witness,    prosecution  of— 

False  answer  to  question—Refusal  to  answer  question 

Where  a  witness  on  being  asked  the  name  of  his 
paternal  grandfather,  replies  that  he  does  not  remem- 
ber it,  it  is  not  a  refusal  to  answer  the  question,  and  the 
witness  cannot  be  proceeded  against  under  s  170,  Penal 
Code,  read  with  a  480,  Cr.  P.  0 ,  although  if  the 
answer  is  false,  the  witness  cjuld  be  prosecuted  under 
B  193,  Penal  Code.  L  KALLU  v.  EMPEROR.  27  Cr,  L  J. 
252;  A.  I.  R.  1926  Lah  240  428 
88.  190,  44— Threat  to  institute  civil  suit, 

whether  threat  of  "injury" 

A  threat  to  institute  a  civil  suit  for  a  declaration 
of  right  against  any  person  who  is  objecting  to  such 
right  does  not  amount  to  a  threat  of  "injury"  within 
the  meaning  of  s.  190  of  the  Penal  Code  A  MULAI 
RAI  v.  EMPEROR,  24  A.  L.  J.  314;  27  Cr.  L  J.  351;  A.  L 
R  1926  All  277  863 
8. 193— Criminal  Procedure  Code  (Act  V  of 

1898),  s$  195,  tf 6—Pei  jury— Statement  literally  trut 

—Complaint,  whether  should  be  made. 

A  Court  is  not  justified  in  making  a  complaint  of 
perjury  against  a  person  in  respect  of  a  statement 
which  is  literally  and  strictly  speaking  true.  L 
OHIRAQH  DIN  v.  EMPEROR,  7  L.  L.  J.  621;  27  Cr.  L  J, 
330  743 
8.  211—  False  charge  made  before  Police--* 

Offence, 

Where  a  person  makes  a  report  to  the  Police  de- 
liberately but  falsely  charging  another  with  having 
committed  an  offence  with  the  intention  that  the  Polici 
should  put  that  person  on  his  trial,  he  is  guilty  or 
an  offence  under  8.  211  of  the  Penal  Code. 

A  charge  laid  before  the  Police  amounts  to  the- 
institution  of  a  criminal  proceeding  within  the  mean- 
ing of  the  latter  part  of  a  211  of  the  Penal  Code. 
Pat  PARMBSHAR  LALL  v.  EMPEROR,  4  Pat,  472:  A.  L  R, 
19*5  Pat.  678,  27  Cr  L,  J.  373  885 

8.  3O2.  See  PBNAL  CODES,  I860,  fe<  141  145 

8.  3 O2 — Death  caused  by  attack  with  sharp* 

edged  weapon — Offence,  „  ,  ; 

In  the  course  of  an  altercation,  accused  suddenly 
struck  the  deceased  with  a  sharp-edged  weapon  causing 
two  wounds  of  a  penetrating  nature,  one  of  which  corn- 


Penal  Code— contd. 

pletely  perforated  the  heart  and  the  other  penetratm* 
the  abdomen  divided  the  intestines,  from  the  efi&cVox 
which  the  deceased  died  at  once; 

Held,  that  having  regard  to  the  nature  of  the 
wounds  inflicted,  the  accused  must  be  deemed  to  hare 
intended  to  cause  death  or  at  least  suclu  bodily  injury 
as  was  likely  to  cause  death  and  wasv  therefore,  guilty 
of  murder.  L  LACHHMAN  SINGH  v,  KMPBROR,  7  L.  L  J. 
582,  27  Cr  L  J.  238.  A  I  R.  1926  Lah,  143  222 

88.  3 02,  97 — Death  caused  in  pre+arraitffed 

fight— Uurdty— Private  defence^  right  of, 
Where  members  of  two  rival  factions  armed 'with 
deadly  weapons  take  part  in  a  pre-arranged  light,  and1 
deaths  are  caused  on  either  side,  no  question:  of  the 
exercise  of  the  right  of  private  defence  arises,  and' 
all  those  who  take  part  in  the  fight  are  guilty  of  the 
offence  of  murder.  LMADAT  KHAN  v.  EMPBROR,  7  L*  L. 
J.  628;  27  Or.  L.  J.  283;  A.  I.  R.  1926  Lah.  221  '  "  " 


88.   302,   304,    323—  Blow  struck    with 

heavy    weapon —Disappearance   of  person  ttruck**- 

Offence. 

Accused  struck  his  brother's  widow  with  a  heavy 
moosal,  felled  her  to  the  ground,  and  then  dragged, 
her  into  the  house  after  which  no  trace  of  her  could' 
be  discovered, 

Held,  that  in  the  absence  of  definite  evidence  that 
the  woman  had  died  and  that  her  death  was  due  to 
the  blow  which  the  accused  dealt  her,  the  accused1 
could  not  be  convicted  of  an  offence  either  under 
s  302  or  under  s  301  of  the  Penal  Code  and  that  at  the 
most  he  was  guilty  of  an  offence  under  s.  323  of  the 
Penal  Code.  L  BHOLAV.  EMPEROR,  27  Cr  L.  J.  275  451 

SS.  304A,  337,338,  465,  471-CnmwiaZ 

Procedure  Code  (Act  V  of  1898),  8.  235— Accident 
causing  loss  of  life  and  injury  to  person— Neglect  of 
duty—Forgery  committed  by  accused  to  screen  him- 
self  from  criminal  liability  and  to  continue  in 
employment— Joinder  of  charges— "Same  transaction, 
meaning  of— Contributory  negligence,  plea  o/,  whether 
relevant 

In  a  prosecution  under  es.  304*A,  337  and  338  of  the 
Penal  Code  the  accused  cannot  claim  the  benefit  of  an 
error  of  judgment  when  he  has  exercised  no  judgment 
at  all. 

The  expression  "gross  neglect"  finds  noplace  in  the 
Criminal  Law  of  India.  That  law  does  not  render 
a  mere  casual  inadvertence  of  duty  criminal,  but  such' 
neglect  of  duty  as  either  directly  results  hi  loss  of 
life  or  injury  to  person  or  such  neglect  as  endangers 
life  or  property 

Where  a  person  is  charged  with  the  offence  of  caus- 
ing loss  of  life  by  a  negligent  omission,  it  is  nqtf  open 
to  him  to  rely  on  the  plea  of  contributory  negligence 
which  is  distinctly  recognized  in  the  Law  of  Torta  but 
finds  no  place  in  an  indictment  for  criminal  negli- 
gence In  such  a  case  the  question  is  what  w«a  the 
proximate  cause  of  the  accident. 

The  arena  of  facts  covered  by  the  expression  "same 
transaction11  used  in  s.  235  of  the  Or.  P.  C-  varies 
with  the  circumstances  of  each  case.  The  real  and: 
substantial  test  for  determining  whether  &ev«r*ij 
offences  are  so  connected  together  as  to  form  one  icaaoa* 
action  depends  upon  whether  they  are  so  related*  toga* 
ther  in  point  of  purpose  or  as  cause  and  efieat  oivat 
principal  or  subsidiary  acts  as  to  constitute  one  oott* 
tinuous  action. 

It  was  the  duty  of  the  accused  to  make  *  periodical 
inspection  of  certain  boilers  in  order  to  see  tfcittlte 
boilers  were  in  a  fit  condition  to  be  woriwi  One  of 


821 


GENERAL  INDEX, 


1135 


Penal  Code—contd. 

the  boilers  exploded  and  caused  loss  of  life  and  injury 
to  person,  the  accident  being  due  to  the  fact  that 
the  crown  stays  of  the  boiler  were  badly  corroded, 
some  of  them  haying  disappeared  altogether  If  the 
accused  had  carried  out  his  duty  of  inspecting  the 
boiler  from  time  to  time,  all  possibility  of  the  accident 
-would  have  bee^i  avoided.  During  a  departmental 
enquiry  into  the  cause  of  the  .accident,  the  accused 
produced  a  Dak  Despatch  Book  in  order  to  prove  that 
he  had  submitted  periodical  reports  of  his  inspection 
of  the  boiler  to  his  superior  officer  He  also  relied  on 
certain  entries  made  by  him  in  a  private  book  to  show 
that  lie  had  reported  on  the  condition  of  the  crown 
stays.  The  entries  in  the  Dak  Despatch  Book  and  the 
private  book  produced  by  the  accused  were  suspected 
'to  be  forged  and  the  accused  was  put  on  his  trial  on 
three  different  charges,  (1)  under  ss  304-A,  337  and 
338  for  neglect  of  duty  resulting  in  the  bursting  of  the 
boiler  and  causing  loss  of  life  and  injury  to  person, 
(2)  under  ss  465,  471  or  in  the  alternative  under 
it  193  of  the  Penal  Cod6  for  having  forged  entries  in 
his  private  book  with  the  object  of  inducing  the  officer 
who  was  hoi  ding  an  enquiry  to  form  an  erroneous 
opinion  and  (3)  under  s  4  7  7-  A  of  the  Penal  Code  for 
falsifying  Dak  Despatch  Book  He  was  convicted 
under  the  first  and  second  heads  but  was  acquitted  on 
the  third  , 

Held,  (1)  that  the  neglect  of  the  accused  resulting  in 
the  bursting  of  the  boiler  and  the  subsequent  forgeries 
with  the  object  of  screening  himself  from  criminal 
liability  and  in  order  that  he  might  be  retained  in  his 
employment  were  part  of  the  same  tiansaction  within 
tUe  meaning  of  a  235  of  the  Or  P  C  ,  and  that  there 
was  consequently  no  misjomder  of  charges  , 

(2)  that  the  bursting  of  the  boiler  being  due  to  the 
neglect  of  duty  of  the  accused  and  that  the  accused 
naving  forged  the  entries  m  the  private  book  with  the 
object  of  being  retained  in  employment,  his  conviction 
on  the  first  and  second  charges  was  justified  8 
WOODWARD  v.  EMPEROB,  18  S.  L  R  199;  A.  I  R  1925 
3;  27  Or.  L.  J.  257  433 

t.  309—  Attempt  to  commit  suicide 
An  attempt  to  commit  suicide  should  not  be  treated 
lightly   A  EMPBROR  v  KESAR,  27  Cr   L  J    303,  24  A 
-U  J.  228,  A  I  R.  1926  All  226  591 


-  8,  323,    See  PEKAL  CODE,  1860,  s  147     463 

-  8,  332.    See  PENAL  CODE,  1860,  s  147      224 

-  8.  332—  Police     Act    (V  of   1861),  i    31*— 
Playing    cards    in    street—  Offence—  Prohibition  by 
con&able—  Discharge  of  duty 

'Playing  cards  in  the  street  is  no  offence  under  s  34 
of  the  Police  Act  and,  therefore,  a  constable  prohibit- 
ing people  frotia  doing  so  cannot  be  said  to  be  acting 
in  discharge  of  his  duty  L  MUL  CIIAND  v  EMPEROR, 
Jf7  Or.  L,  J.  377,  A.  I  R.  1926  Lah.  250  889 

"  •  •"   '  •    •«.  337,  338.  See  PENAL  CODE,  I860,  s  304A 

433 

-  —  —  ^88.  342,     865—  Wrongful    confinement— 

Ppfcereotout*  o/   person  confined   not    concealed— 
Offence. 

The  intent  to  cause  the  jjerson  abducted  to  be  secretly 
i$&  ^wrongfully  confined  is  an  essential  element  of  an 
dfleae^under  s.  365  of  the  Penal  Code. 
1  ^Aceuaed  wrongfully  confined  their  sister  but  her 
Whereabouts  were  not  concealed  from  her  other  re- 
and  persons  interested  in  her, 
,  that  the  aocTWd  were  guilty  of  an  offence 
0.342  of  ttoe  Penal  Code  but  not  of  an  offence 


Penal  Code— contd. 

under  s  365  of  the  Oode    L  AKBAR  A  LI  v  EMPEROR,  7 
L,  L.  J  520,  A,  I.  R.  1925  Lah.  614,  27  Cr  L  J  229 

213 

8.  365.    See  PENAL  CODE,  1860,  s  342       213 

^  g.  366— Abduction,  what  constitutes 

In  order  to  sustain  a  charge  under  &  366  of  the 
Penal  Code,  it  is  not  necessary  for  the  prosecution  to 
establish  that  after  the  woman  had  heen  by  force 
compelled  to  leave  her  house,  she  was  by  force  com- 
pelled to  go  to  various  places  C  KERMAT  MANUAL  v 
EMPBROR,  42  C  L  J  524.  27  Cr,  L  J,  263,  A  I  R 
1926  Cal  320  439 

— — S.  379—  Theft— Catching  fish  in  poromboke 

tank  in  assertion  of  bona  fide  right — Offence 

Catching  fish  in  a  poromboke  tank  in  the  assertion 

of  a  bona  fide  right  does  not  amount  to  the  offence  of 

theft    M  VAITHI  MATHARAN  v   NAIUYANASWAMI  JYBR,  22 

L  W  673,  A.I.  R  1926  Mad  210,  27  Cr  L  J  343  855 

8.  397 — "Uses"  meaning  of —Use  of  handle 

of  axe,  whether  use  of  deadly  weapon 

The  word  "uses"  in  s  397  of  the  Penal  (''ode  should 
be  construed  in  a  wide  sense  so  as  to  include  not 
merely  cutting,  stabbing  or  shooting  (as  the  case  may 
be)  but  also  carrying  the  weapon  for  the  purpose  of 
overawing  the  person  robbed 

A  hatchet  being  a  deadly  weapon,  it  will  be  deemed 
to  have  been  used  as  a  deadly  weapon  whether  it  is. 
its  head  or  handle  that  is  used  S  NAZAR  SHAH  v 
EMPBROR,  27  Cr  L  J  334,  A  I.  R  1926  Sind  150  750 

8.      403— Criminal         misappropriation — 

Repudiation  of  trust—  Sapurddar    of   attached  pro- 
perty— Failure  to    deliver   property — Covenant   for 
delivery  of  price — Civil  liability 
Section  403,  Penal  Code,  is  m  no  way  restricted  to 
appropriating  property  to  one's  own  use     If  a  trustee 
repudiates  the  trust  and  asserts  that  he  now  holds  the 
property  on  behalf  of  a  peison  othei    than  the  one 
who  entrusted  him  with  it,  he  has  misappropriated 
the  property  just  as  much  he  would  havo   been  said 
to  misappropriate  it  if  he  had  been  putting  forward 
his  own  claim  to  it 

When  a  Receiver  attaches  property  and  entrusts  it 
to  some  person,  he  does  not  purport  to  sell  it  to 
him  or  dispose  it  of  at  that  tune  The  Receiver 
may  not  even  be  m  a  position  to  know  its  true 
value  The  intention  of  the  parties  is  that  the 
articles  should  be  returned  in  specie  or  pioduced  at 
the  time  when  the  auction  sale  is  to  take  place.  The 
covenant  m  the  sapurdnama,  that  the  person  entrusted 
with  the  property  would  be  liable  to  pay  a  certain 
amount  m  case  he  fails  to  deliver  the  property,  is 
more  by  way  of  security  than  because  the  property 
is  transferred  to  him  with  libeity  to  dispose  it  of  or 
withhold  it,  In  such  cases  it  is  the  true  intention 
of  the  parties  which  must  be  taken  into  account. 
Therefore,  if  the  property  is  not  produced  the  sapurd- 
dar  is  guilty  of  criminal  misappropriation  It  is  not 
a  case  of  mere  civil  liability 

The  mere  fact  that  there  is  a  civil  liability  does 
not  necessarily  absolve  one  from  criminal  liability 
A  INDAR  SINGH  i?  EMPPROR,  27  Cr  L  J  297;  24  A  L 
J  270,  A.  I  R,  1026  All  3JS,  43  A  283  585 

— —  8.  405 — Criminal  breach  of  tiust — Nomi- 
nal sale  of  engine  by  person  entrusted,  whether 
amounts  to  offence, 

Accused  who  was  entrusted  with  an  engine  exe- 
cuted a  nominal  sale-deed  therefor  to  a  third  person 
but  the  engine  was  not  removed  from  its  place 


1126 

Penal  Code— contd. 


INDIAN  OASES. 


[1926 


Penal  Code  -contd. 


and  was  still  available  to  the  true  owner  who  suffered 
no  loss  by  the  sale 

Held,  that  on  those  facts  a  conviction  of  the  accused 
for  ci  iminal  breach  of  trust  was  not  sustainable  M 
RUKMANI  AMMAL  v.  MUTHUSWAMI  REI»DI,  50  M  L  J. 
94;  27  Or  L  J  331  747 
8.  406  -Money  advanced  to  accused  under 

lawful  agreement  -Agreement    becoming    incapable 

of  execution—Retention  of  money  in    lieu  of  debt 

due  to  accused — Offence. 

Where  a  sum  of  money  is  placed  in  the  hands  of  a 
person  under  a  lawful  agreement  which,  however, 
becomes  subsequently  incapable  of  execution,  and  is 
retained  by  him  afterwards  against  a  debt  due  to  him 
he  cannot  be  held  guilty  of  criminal  In  each  of  trust 
under  s,  406,  Penal  Code  A  PURAN  u.  EMPEROR,  27  Cr. 
L.  J.  383,  A.  I.  R.  1926  All.  298  895 


88. 411, 457— -Stolen  proprety  found  in  house 

occupied  by  several  persons — Exclusive   possession — 

Offence. 

Certain  stolen  property  was  found  concealed  in  a 
dung  heap  in  the  courtyard  of  a  house  which  was 
owned  and  occupied  by  four  persons 

Held,  that  the  property  could  not  be  said  to  be  in 
the  exclusive  possession  of  any  of  the  occupants  of  the 
house  and  that  none  of  them  could,  therefore,  be 
convicted  of  any  offence  under  s  457  or  411  of  the 
Penal  Code.  L  QAIM  DIN  v  EMPEROR,  7  L  L.  J.  223, 
37  Cr  L.  J  249  425 
8.  457.  See  PENAL  CODE,  I860,  s.  411  425 

8,  457 — Burglary  —Conviction  based  on  pro- 
duction of  non-identifiable  articles,  legality  of. 
Complainant's  shop  was  broken  into  and  a  quantity 
of  cotton  and  some  pieces  of  cloth  were  stolen,  but 
complainant  did  not  furnish  the  Police  with  a  list  of 
the  articles  which  had  been  stolen.  Accused  was  seen 
next  morning  in  the  village  carrying  bundles  of  cloth 
He  was  subsequently  arrested  and  produced  a  bag  of 
cotton  and  certain  pieces  of  cloth  of  an  ordinary 
character  which  any  cloth  merchant  might  be  expect- 
ed to  stock  and  sell,  but  which  ^7ere  claimed  by  the 
complainant  as  belonging  to  him 

Held>  that  the  evidence  against  the  accused  was  of 
an  inconclusive  character  and  was  not  sufficient  to 
support  a  conviction  under  s.  457  of  the  Pemil  Code. 
L  WASALV.  EMPEROR,  A.  L  It  1925  Lah  405,  7  L  L  J 
277;  27  Cr.  L.  J.  299  587 

88.   471,    47 7 A.      See  PENAL  CODE,    I860, 

8. 304A  •      433 

• 8.499 — Defamation— Good  faith  —Principles 

applicable — Criminal  Procedure  Code  (Act  V  of 
1898),  s.  81$  (2)— Written  statement  by  accused- 
Privilege. 

There  is  a  distinction  between  criminal  and  civil 
liability  for  defamation  Civil  liability  is  to  be  deter- 
mined by  the  principles  of  English  Law,  but  criminal 
liability  is  governed  by  the  provisions  of  the  Penal 
Code  and  those  provisions  alone. 

A  finding  that  a  defamatory  statement  was  made  in 
good  faith  within  8.  499,  Penal  Code,  cannot  be  read 
into  a  general  statement  by  the  Sessions  Judge,  that 
the  statement  was  covered  by  privilege,  and  that  it 
was  made  not  with  the  intention  of  doing  harm  to  the 
person  defamed  but  with  the  object  of  saving  the 
person  making  it. 

The  immunity  conferred  by  s  342  (2),  Cr  P.  C.,  does 

not  extend  to  a  written  statement  by  the  accused.      A 

CHAMPVDEVI  v  PIRBHU  LAL,  27  Cr,  L,  J,  253;  24  A.  L. 

J.  S2S;  A,  1.  R,  1926  All  287  429 


83,  499,  Excep.    9,    50O— Defamation— 

Statement   made  by  Advocate,  whether  privile,ged~«- 
Absolute  privilege,  doctrine  of,  whether  applicable — 
Malice,  proof  of — Advocate,  position  and  duties  of, 
Section  499   of   the  Penal    Code  is  meant  to    be 
universal  and  the  English  Law  of  absolute  privilege 
does  not  apply  in  this  country  to  statements  of  Ad- 
vocates in  judicial  proceedings. 

It  is,  however,  for  the  public  good  that  a  person 
charged  with  the  responsibility  of  an  Advocate  shoul^, 
so  far  as  may  be,  feel  unfettered  by  any  control  other 
than  that  of  the  Presiding  Judge,  in  the  use  of  every 
weapon  placed  at  his  disposal  by  the  law  for  the 
defence  of  the  liberty  of  his  client. 

Exception  9  to  s.  499  of  the  Penal  Code  must, 
therefore,  be  interpreted  accordingly,  and  it  is  the 
duty  of  a  Court  when  a  complaint  is  made  against  an 
Advocate  or  Legal  Practitioner  for  defamation  that  it 
should  presume  that  the  remark  was  made  on  instruc- 
tions and  in  good  faith ;  and  unless  circumstances 
clearly  show  that  it  was  made  wantonly,  or  from 
malicious  or  private  motives,  the  complaint  should  not 
be  entertained. 

Even  if  the  circumstances  suggest  recklessness  or 
malice,  further  enquiry  should  be  made  and  an 
opportunity,  if  possible,  should  be  given  to  a  Legal 
Practitioner  to  offer  an  explanation  before  summons  is 
issued  against  him. 

Per  Brown,  J  —A  definite  pronouncement  of  the 
Indian  Legislature  is  not  liable  to  be  overridden  by 
the  provisions  of  tho  Common  Law  of  England. 

The  law  as  to  absolute  privilege  is  not  applicable 
to  the  Criminal  Law  of  defamation  in  India.  The 
Indian  Penal  Code  is  a  complete  Code  in  itself.  It 
is  to  a  large  extent  founded  on  the  Common  Law  of 
England,  but  the  ordinary  criminal  offences  in  this 
country  are  punishable,  not  because  they  would  be 
offences  under  the  English  Common  Law,  but  because 
they  have  been  declared  to  be  offences  punishable 
under  the  Penal  Code.  Section  499  defines  the 
criminal  offence  of  defamation  The  section  is 
quite  clearly  wide  enough  in  certain  circumstances  to 
make  statements  made  by  Advocates  in  the  exercise 
of  their  profession  amounting  to  criminal  defamation 
punishable  under  s  500  Thers  are  a  number  of 
exceptions  set  forth  in  s.  499,  and  any  statement  fall- 
ing within  those  exceptions  does  not  amount  to 
criminal  defamation  But  any  statement  which  does 
not  fall  within  any  of  these  exceptions,  and  which 
otherwise  satisfies  the  terms  of  the  general  definition 
in  tho  section  is  quite  clearly  declared  by  s  499  read 
with  s  500  to  be  punishable. 

If  an  Advocate  is  to  carry  out  his  duties  to  hi«  client, 
he  must  frequently  have  to  make  imputations  or 
statements,  the  correctness  of  which  he  has  not  had 
the  time  or  opportunity  to  verify,  and  it  is  a  very 
fair  presumption  in  ordinary  cases  that  a  statement  or 
imputation  so  made  by  an  Advocate  in  the  course  of 
judicial  proceedings  is  made,  not  for  the  purposes  of 
defamation,  but  in  good  faith,  for  the  protection  of 
the  interests  of  hie  client.  In  such  a  case,  therefore, 
to  establish  an  offence  of  criminal  defamation  it  is 
necessary  not  only  to  show  that  a  defamatory  statement 
has  been  made,  but  that  it  has  been  made  maliciously, 
wantonly,  or  with  some  improper  motive.  A  Magistrate 
should  refuse  to  take  cognizance  of  a  complaint  in 
such  a  case  unleas  there  ia  some  allegation  of  malice; 
wantonness  or  improper  motive.  ft  MCDONNBL  v. 
EMPEROR,  A.  L  R.  19»B*ng.M5;  4  Bur.  L  J.  147*3  R. 
SH\  27  Cr,  L,  J,  321  '  737 


VoL  92] 


GENERAL  INDEX. 


112? 


Penal  Code— conoid. 


8.  &QQ—Defamation— Challenged  statement 

A  person  who  maliciously  makes  a  defamatory  state- 
ment in  respect  of  another,  in  the  presence  of  several 
persons,  is  guilty  of  defamation,  notwithstanding  that 
he  makes  the  statement  on  being  challenged  to  do  so 
by  the  person  defamed.  A  BENI  RAM  v.  EMPEROR,  27 
Or.  L.  J.  310;  A  I  R.  1926  All.  237  694 


Practice. 

See  ALSO  (i)  CIVIL  PROCEDURE, 

(n)  CRIMINAL  PROCEDURE. 
(Hi)  EVIDENCE 

— — —  Court  allowing  one  party  to  call    opposite 
party  as  witness     See  EVIDENCE  844 

-  Dispute  of    civil    nature — Criminal  proceed- 


8.  500 — Defamation-  Degradation  in  caste- 

Privilege 

A  statement  by  the  accused  to  certain  members  of 
the  caste  that  the  complainant  had  become  a  sweeper 
by  reason  of  his  having  shaken  hands  and  associated 
with  sweepers,  is  defamatory  and  is  not  privileged 
where  it  does  not  represent  the  decision  formally 
arrived  at  by  a  panchayat  held  to  consider  the  matter. 
A  KHAMANI  v  EMPEROR,  L  R  6  A  207  Cr.,  24  A  L  J. 
171;  27  Cr.  L.  J  296,  AIR  1926  All  306  584 
8506.  See  PENAL  CODE,  1860,  s  141  145 


Permanent  Settlement. 
1793 


See  BENGAL  REGULATION, 
338 


Pleader,    appearance   against   former  client       See 
MADRAS  CIVIL  RULES  OF  PRACTICE,  R  277  300 

Consent  to  compromise      See    COMPROMISE 

179 

Pleadings.   See  ALSO  C  P  C,,  1908,0  VI,  O  VII 
—  Adverse    possession,   plea  of — Appeal—  Plea, 

whether  can  be  taken 

Ordinarily  a  plea  of  adverse  possession  should  be 
distinctly  raised  in  the  pleadings  and  should  also 
form  the  subject-matter  of  an  issue,  but  a  party  may 
be  allowed  to  succeed  on  a  title  by  adverse  posses- 
sion pleaded  for  the  lirst  time  in  the  Court  of  Appeal, 
if  such  a  case  arises  on  facts  stated  m  the  pleadings 
and  the  opposite  paity  is  not  taken  by  surprise  Pat 
BATISA  KUBRV  RAJA  RAM  PANDEY.  (1925)  Pat  343,  A  I. 
R  1926  Pat  192,  7  P  L.  T  393  177 

and  proof— Injunction,  suit  for— Property 

alleged  to  belong  to  plaintiff —Finding  as  to  public 

nature  of  property,  effect  of 

Plaintiff  alleging  that  a  chabutra  m  an  open  space 
belonged  exclusively  to  him,  instituted  a  suit  for  an 
injunction  restraining  the  defendant  from  interfering 
with  the  plaintiff's  user  of  the  chabutra  Defendant 
pleaded  that  the  chabutra  belonged  to  him  It  was 
found  that  the  chabutra  was  public  property  and 
belonged  neither  to  the  plaintiff  nbr  to  the  defendant 

Held,  that  having  regard  to  the  frame  of  the  plaint- 
iff's suit,  the  suit  must  be  dismissed  on  the  finding  that 
the  chabutra  did  not  belong  to  the  plaintiff.  N 
BABKOO  v  ATM  A  RAM  818 

Police  Act  (V  of  1861),  8.  34.      See  PENAL  CODE, 
I860,  s,  332  389 

a.  34  (4)— -Supplying  water  to  public  and 

receiving  tins—Water ,  whether  "exposed  for  sale" 
A  person  who  sets  up  a  chauki  (wooden  board)  with 
an  earthen  jar  filled  with  water  on  a  public  place  and 
supplies  water  to  all  those  who  want  it,  cannot  be 
said  to  expose  the  water  for  sale  within  s.  34  (4;  of 
the  Police  Act,  merely  because  sometime  a  some  of 
the  persons  who  take  water  do  voluntarily  give  tips 
to  him. 

The  expression  "exposes  for  sale"  in  s.  34  (4),  Police 
Act,  implies  that  every  person  who  takes  any  quantity 
of  the  thing  exposed  has  to  pay  for  it  A  KALAP  NATH 
v.  BMPBROR,  27  Cr.  L,  J  303,  24  A.  L.  J,  292;  A.  I.  R. 
m0  AIL  288  591 


ingt 

Parties  should  not  be  encouraged  to  resort  to  the 
Criminal  Courts  in  cases  in  which  the  point  at  issue 
between  them  is  one  which  can  more  properly  be 
decided  by  a  Civil  Court  In  each  case,  however,  it 
must  be  seen  whether  the  issue  as  to  title  is  raised 
bona  fide  or  mala  fide  L  ABDUL  QADIR  v  EMPBROR,  27 
Or  L  J.  211  163 
—Dispute  of  civil  nature—Procedure 

The  complainant  had  raoitgaged  some  land  to  the 
accused  The  accused  claimed  that  the  mortgage  wag 
with  possession  while  the  complainant  said  it  was 
not  One  day  the  complainant  found  the  accused 
ploughing  the  land,  remonstiated  with  him,  and  was 
assaulted  The  Magistrate  convicted  the  accused  and 
sentenced  him  to  a  fine  under  a  323,  Penal  Code 

Held,  that  the  dispute  between  the  parties  being  of 
a  civil  nature,  the  Magistrate  would  have  exercised  a 
better  discretion  had  he  directed  the  complainant  to 
seek  his  remedy  from  a  Civil  Court  L  TUISI  v. 
EMPEROR,  7  L  L  J  389,  A.  I  R  1925  Lah  599,  27  Or. 
L  J.  231  215 
•  Evidence  produced  at  late  stage,  whether 

should  be  admitted 

It  is  the  duty  of  a  Court  to  welcome  any  evidence 
that  may  be  offered  and  indeed  to  search  for  it,  and  it 
is  wrong  to  exclude  any  evidence  that  is  relevant  If 
evidence  which  is  relevant  is  tendered  at  a  late  stage 
such  suspicion  or  disbelief  of  it  as  may  be  due  to  its 
production  at  a  late  stage  will  attach  to  it  automatical- 
ly and  if  the  other  party  has  had  no  opportunity 
because  of  the  lateness  of  the  stage  at  which  the  evi- 
dence is  produced,  of  producing  any  rebutting  evi- 
dence that  they  might  have  had,  the  disbelief  is  great- 
ly increased  N  KRSHEORAO  v  MAKOTIRAO,  8  N  L  J. 
227,  AIR  1926  Nag  139  102 
Execution  petitions 

Practice  of  striking  off  or  lodging  execution  peti- 
tions for  statistical  purposes  condemned  M  PATTA- 
MAYYA  v  PATTAYYA,  50  M  L  J  215,  (1926)  M  W  N. 
262,  AIR  1926  Mad  453  782 
„  Piecemeal  trial  of  suit,  undesirabihty  of 

The  practice  of  trying  an  impoitant  case  piecemeal 
tends  to  lead  to  protracted  litigation  and  serious  in- 
convenience and  to  involve  the  parties  m  heavy  costs 
if  the  case  is  taken  repeatedly  on  appeal  to  a  superior 
tribunal  L  RAGHCNATH  DAS-RAM  SAB  UP  v  SULZBR 
BRUDIRBR  &  Co  ,  7  L  L  J.  611,  7  L.  42,  AIR.  1926 
Lah  125  712 

_____ and  pleadings.    See  PUNJAB  PRE-EMPTION 

ACT,  1913,  s.  16  241 

precedents— Official  reports 

Every  Court  subordinate  to  the  Judicial  Commis- 
sioner's Court  m  Central  Provinces  and  Berar  is 
bound  to  follow  a  ruling  published  in  Central  Pro- 
vinces Law  Reports  or  Kagpur  Law  Keports  until 
it  has  been  overruled  by  another  ruling  similarly 
published  Even  in  tHe  Judicial  Commissioner's 
Court  according  to  an  old  standing  rule  of  prac- 
tic3  a  Judge  sitting  alone  always  follows  an 
officially  published  ruling  If  he  doubts  the  correct- 
ness of  such  ruling,  ths  only  coursD  properly  open  to 
him  is  to  r«fer  the  matter  for  the  decision  of  a  Bench 
N  KBSHBO  v.  JAQANNATU,  A.  I.  R,  1926  Nag.  318  1 21 


1128 


INDIAN  OASES, 


Precedents— concld. 

._ Reported  and  unrepaired  decisions. 

In  the  case  of  a  conflict  between  a  reported  and  an 
unreported  decision,  the  proper  course  is  to  follow  the 
reported  decision.  M.  TRUSTEES  PAUAKKAT  DF^ASWOM 

V.  VENKATACIJALAM  VADHAYAB,  23  L.  W.  22,  50   M     L    J. 

153;  A.  I,  K.  1926  Mad  321  709 


-  Revenue  cases. 


The  High  Court  ought  to  follow,  especially  in 
matters  of  procedure,  as  far  as  it  can  do,  the  policy 
or  line  of  decisions  adopted  by  the  Revenue  Side  in 
cases  which  strictly  belong  to  the  levenue  jurisdiction. 
A  KHBM  KARAN  DAS  i>.  BALDEO  SINGH,  A.  I.  K.  1926  All. 
382  1O46 
Subordinate  Courts,  duty  of. 

A  Subordinate  Court  is  bound  by  the  ruling  of  a 
superior  Court,  however  unsound  it  may  appear  to  it 
unless  it  is  expressly  contrary  to  any  statutory  pro- 
vision of  law  which  was  not  brought  to  the  notice  of 
the  superior  Court,  or  unless  it  has  been  overruled. 
ABKNi  RAM  v.  EMPEROR,  27  Cr.  L  J  310,  AIR  1926 
AIL  237  694 

Pre-pmptlon.    See  MUHAMMADAN  LAW— GIFT      265 

Custom—  Instances  in  neighbouring  mohallas, 

value  of — Mohalla  Serai  Mangal  Sain,  Jhelum  City. 
Instances  of  the  exercise  of  the  right  of  pre-emption 
in  neighbouring  mohallas  are  not  sufficient  to  prove 
that  the  custom  of  pre-emption  exists  in  the  locality 
in  which  the  property  in  suit  is  situate, 

The  custom  of  pre-emption  does  not  exist  generally 
throughout  the  town  of  Jhelum,  nor  does  it  exist  in 
the  block  known  as  Mohalla  Serai  Mangal  Sain  which 
is  a  part  of  the  old  Chakla  Mohalla.  L  LAL  CHAND  v 
HUN!  KUMAR,  7  L  L  J.  590,  A.  I.  R,  1926  Lah,  108,  7 
L.55  651 

Market-value,    determination    of — Evidence, 

absence  of — Waiver — Refusal  to  purchase  at  certain 
sum- Sale  for  lesser  sum—  Right,  whether  can  be 
asserted. 

In  a  pre-emption  rase,  in  the  absence  of  satisfactory 
evidence  of  the  market  value  of  the  land  in  dispute, 
the  sum  actually  paid  may  be  taken  to  bo  the  proper 
market  value 

Where  a  pre-emptor  refuses  to  purchase  the  pio- 
perty  offered  for  sale  at  a  certain  pi  ice,  he  is  not, 
estopped  from  asserting  his  right  of  pre-emption  if 
the  property  is  subsequently  sold  for  a  lesser  sum 
L  NATHA  SINGH  v.  SUNDER  SIIV&H,  7  L  L  J.  559,  A.  L  R 
1926  Lah.  10  258 

Previous  refusal—  Waiver 

A  previous  refusal  by  the  pre-emptor  to  buy  the 
property  on  the  ground  of  his  inability  to  buy  ope- 
rates as  a  waiver  of  his  right  to  pre-empt  L  MUKAM- 
MAD  v.  MUHAMMAD  Au,  A.  I  R.  1926  Lah  243  289 

— Price  fixed  in  good  faith— -Finding  of  fact 

— Appeal,  second — Finding,  whether  can  be  challeng- 
ed. 

Where   a    Court   of   first    appeal   disbelieves   the 
witnesses   produced  by  a  pre-emptor  in  support  of 
his  allegation  that  the  price  mentioned  in  the   sale- 
deed  was  not  fixed  in  good  faith,  its   finding  that  the 
price  was  fixed  in  good  faith  cannot  be  challenged  in 
second  appeal.    O  INDARPAL  SINQH  v,  KALLOO         670 
— —  /Stilt  for  possession  of  definite  plot  out  of  estate 
assessed  to  revenue— Jurisdictional  value— Improve- 
ments by  vendee — Compensation. 
In  the  Punjab  the  value  of  a  pre-emption  suit  for 
purpose^  of  jurisdiction  is  30  times  the  proportionate 


Pre-emptlon—coacid, 

amount  of  revenue  recorded  as  payable  for  the  holding 
in  which  the  land  in  suit  is  comprised  even  though  it 
be  a  specified  plot  by  metes  and  bounds  and  no,t  a 
definite  share  of  the  holding. 

A  vendee,  in  a  pre-emption  suit,  is  in  equity  entitled 
to  compensation,  for  improvements  effected  after  the 
institution  of  the  suit  when  he  had  no  notice  of  the 
institution  of  the  suit  and  the  improvements  had  been 
effected  after  the  expiry  of  the  period  of  limitation  for 
the  suit.  L  AKBHAD  An  r.  ZOUAWAB  tSixoH,  8  L.  L.  J. 
60  986 

Vendor,  title  of,  assertion  of — Vendor  not  in 

possession  at  time  of  sale — Sale,  what  amounts  to — 
Conveyance  in  consideration  of  price  and  promise  to 
do  certain  things,  whether  sale— Transfer  of  Pro- 
perty Act  (IV  of  1882),  s  aU 
In  order  to  succeed  in  a  suit  for  pre-emption,  the 
pre-emptor  must  assert  title  in  the  vendor,  and  the 
fact  that  there  was  a  conveyance  by  the  vendor  to  the 
vendee  which  amounted  to  a  sale.    The  vendee  qua 
vendee  and  as  against  the   pre-emptor    is    estopped 
from  denying  the  title  of  his  vendor,  and  so,  for  the 
purposes  of   a  pre-emption  suit,   the    title    must  be 
assumed  to  exist  in  the  vendor,  if  it  is  alleged  by 
the  pre-emptor  to  exist 

The  deed  of  conveyance,  however,  must  clearly 
profess  to  sell  the  property,  and  not  merely  be  a  pro- 
mise to  aeil  the  property  in  the  future.  It  makes  no 
difference  whether  the  vendor  was  out  of  possession 
or  in  possession  at  the  date  of  the  sale,  nor  does  it 
make  any  difference  whether  there  was  a  small  or 
large  chance  of  his  getting  his  title  acknowledged 
in  Court 

In  order,  however,  that  a  transaction  should  amount 
to  a  sale  it  is  necessary  that  there  should  be  a  price 
paid  or  promised  or  part  paid  and  part  promised, 
which  means  that  the  price  must  be  stated  in  or 
ascertainable  at  the  time  of  the  deed. 

A  conveyance  in  consideration  of  a  price  and  also 
a  promise  to  do  certain  things,  the  doing  of  which 
-will  cost  an  indefinite  sum  of  money,  is  not  a  sale. 
O  RAM  PHKR  SINGH  v  SHEO  SARAN  SINGH,  SO  W.  N. 
138;  A,  I.  R.  1926  Oudh  196  757 

Wajib-ul-arz  embodying  custom — Partition  of 

village — Agreement  to  observe  custom  irrespective  of 
partition—  Agreement,  whether  binding — Fresh  wajib- 
ul-arz,  whether  necessary. 

Ordinarily  where  a  partition  of  a  village  has  taken 
place,  the  joint  ownership  is  destroyed,  and  each 
mahal  becomes  a  separate  unit  for  the  purpose  of 
regulating  the  lights  of  the  co-sharers  forming  the 
proprietary  body  of  that  mahal  inter  se. 

Where,  however,  the  wajib-ul-arz  relating  to  the 
village  recognises  the  existence  of  a  custom  of  pre- 
emption amongst  the  co-sharers  of  the  village,  and 
when  the  village  is  divided  by  partition  into  different 
mahals,  the  co-sharers  agree  to  the  partition  subject 
to  the  reservation  that  the  custom  will  continue  in 
force  irrespective  of  that  partition,  and  that  a  co- 
sharer  of  one  mahal  would  be  entitled  to  pre-empt  in 
respect  of  property  situated  in  another  mahcdt  tho 
reservation,  operates  as  a  condition  precedent  to,  the 
partition  and  is  as  much  binding  on  the  coraharere, 
who  ar*  parties  to  the  partition  proceeding,  a*  the 
partition  itself.  It  is  not  necessary  that  a  fresh  u>ajib- 
ul-arz  should  be  prepared  ,at  the  tim*  of  partition  in 
respect  of  each  mahal  embodying  such  a  custom. 
A  SKI  KISHKN  t>,  CHANDRA  SEKIUU  DAKSU  SINGH  ,  9153 


Vol,  92J 


GENERAL  INDEX, 


1129 


Presidency  Towns  insolvency  Act  (411  of  1909), 

9$.  30(1),  32 — Composition  scheme,  acceptance  of 

— Annulment  of  adjudication,  effect  of— Debts  not 

proved,  whether  discharged, 

By  the  combined  operation  of  ss.  30  (1)  and  32  of 
the  Presidency  Towns  Insolvency  Act,  the  acceptance 
by  the  Court  of  a  scheme  of  composition  and  the 
consequent  annulment  of  adjudication  operates  as  a 
discharge  of  the  insolvent  from  all  debts  which  were 
provable  in  insolvency  but  winch  have  not  been 
brought  before  the  Insoiv  ency  Court  A  GANPAT  RAI  v 
KANI  RAM  MUNNA  LAL,  21  A.  L.  J  283,  A  I.  R  1926 
All  293  535 

Principal  and  agent.    See    ALSO  CONTRACT   ACT, 

1872,83  182  TO  238 

Agent  guilty  of  fraud— Action  of  agent  whe- 
ther binding  on  principal — Fraudulent  statement  of 
agent  of  decree-holder  that  decree  has  been  satisfied— 
Judgment-debtor  pmy  to  fraud-  Decree-holder,  whe- 
ther bound 

A  principal  is  bound  only  by  acts  done  ^by  his  agent 
on  his  behalf  in  good  faith  and  not  by  his  fraudulent 
actions  when  a  thud  person  who  relies  upon  such  ac- 
tions is  himself  a  party  to  the  fraud 

If  no  payment  of   a  decree  is  actually  made  by  the 
judgment-debtor  and  if  as  a  result  of  collusion  between 
the  agent  of    the    decree-holder    and  the   judgment- 
debtor,  a  fraudulent  application  containing  wrong  facts 
is    put  in    by    the  agent,    the    decree-holder  cannot 
be  deemed  in  law  to  be  bound  by  such  an  application 
O  GANGA  BAKHSH  SINGH  r  MAULA  Bux  SINGH,  13  O    L 
J  132;  A.I  R  192t>  Oudh  337  612 
Misconduct  of  agent—  Promissory  note  obtain- 
ed by  agent  from  debtor—Suit  on  note  by   principal, 
dismissal  of,   on  ground  of  foryeiy— Otiginal  claim 
barred—Suit  for  damages  caused  by  agent  forging  note 
— Note  void  as  contravening  s   26  of  Paper  Currency 
Act  (II  of  1910),  effect  of -Suit  against  agent,  main- 
tainability of 

An  agent  who  was  carrying  on  money-lending 
business  on  behalf  of  his  principal  was  charged  by 
the  latter  with  breach  of  trust  in  obtaining  an  inade- 
quate security  from  a  third  person  in  discharge  of  a 
pro-note  that  had  been  executed  by  a  solvent  debtor 
The  agent  then  produced  a  fresh  pro-note  alleged  to 
have  been  since  executed  by  the  said  debtor  A  suit 
by  the  principal  on  this  pro-note  was  dismissed  on 
the  ground  that  the  note  was  forged  The  cause  of 
action  on  the  original  claim  had  by  then  become 
barred  by  time  In  a  suit  by  the  principal  against 
the  agent  for  damages  caused  by  his  misconduct  in 
forging  the  note  and  misleading  the  plaintiff  into 
giving  up  the  claim  on  the  original  note,  it  was  found 
that  the  note  was  illegal  and  void  being  in,  contra- 
vention of  s  26  of  the  Paper  Currency  Act 

Held,  that  the  plaintiff  had  no  cause  of  action  on 

which  to  maintain  the  suit,  since  even  if  the  note  had 

been  genuine,  a  suit  on   that  document  must  have 

failed  and  it  could  not  be  said  that  the  loss  of  the 

litigation  was  due  to    the   action   of   the  agent  in 

forging  the  note,  the  IOBS,  if  any,  being  due  to  the 

plaintiff's  own  neglect  m  not  seeing  what  his  rights 

were  under  the  document     M  VKERASWAMI  PILLAI  v. 

CHIDAMBARAM  CIIBTTUR  81 9 

Privy  Council— Practice— Criminal  appeal— Refusal 

by  Governor-General  to  transfer  ease— Sufficiency  of 

evidence— Adequacy  of  Judged   charge  jto    Jury— 

Interference,  when  permissible. 

Their  Lordships  of  the  Judicial  Committee  of  the 

Privy  Council  m  dealing  with  petitions  for  special 

leave  to  appeal  against  sentences  pronounced  in  the 


Privy  Council—  eoacld. 

Criminal  Courts  of  the  various  dominions  of  Hie 
Majesty  will  not  act  as  a  Court  of  Criminal  Appeal 
and  will  not  review  or  interfere  with  the  course,  of 
criminal  proceedings  unless  it  is  shown  that  by  a 
disregard  of  the  forms  of  legal  process  or  by  some 
violation  of  the  principles  of  natural  justice,  or  other- 
wise, substantial  and  grave  injustice  has  been  done 

It  is  in  the  power  of  the  Governor  General  of  India, 
if  he  thinks  that  m  the  state  of  public  feeling  a  lair 
trial  cannot  be  obtained  in  the  place  where  an  offence 
would  ordinarily  be  tried,  to  order  that  the  -trial  be 
held  elsewhere 

Wheie,  however,  the  Governor-General  refuses  to 
make  such  an  order,  the  refusal  cannot  be  held  to 
amount  to  a  violation  of  the  principles  of  natural 
justice  so  as  to  enable  their  Lordships  of  the  Privy 
Council  to  interfere  with  the  result  of  the  trial 

Questions  as  to  the  sufficiency  of  evidence  or  the 
adequacy  of  the  Judge's  charge  to  the  Jury  cannot 
come  within  the  ambit  of  the  rule  laid  down  as  to  the 
disregard  of  the  forms  of  legal  process  or  violation 
of  the  pnnciples  of  natural  justice  P.  C.  SKAFI  AHMAD 
NABI  AHMAD  v  KMPEROR,  AIR  1925  P  0  305,  49  M. 
L  J  831.  23  L  W  1,  (1926)  M  W  N  62,  43  C  L.  J 
67,  3  OWN  165,  28  Bom  L  R  158;  27  Cr  L  J  228. 
30  C.  W.  N.  557 


Promissory  note,  suit  on  —Consideration  alleged  by 
plaintiff,  disproof  oi,  effect  of  —  Procedure 
In  a  suit  on  a  promissory-note  plaintiff  stated  that 
cash  consideration  had  passed  at  the  time  of  the 
execution  of  the  promissory  note  The  defendant's 
plea  was  that  the  pro  note  was  executed  as  a  soit  of 
security  for  his  good  conduct  in  connection  with  a 
partnership  which  was  being  carried  on  between  him 
and  the  plaintiff's  brother  The  Trial  Court  found 
that  no  cash  consideration  had  passed  and  that  the 
utoiyof  the  defendant  was  true,  the  pro-note  having 
been  executed  as  security  for  accounting  for  sums 
drawn  by  the  defendant  aa  a  pai  tnei 

Held,  that  on  the  fanding  of  the  Trial  Court  the  suit 
was  bound  to  be  dismissed  and  that  that  finding  could 
not  be  construed  as  declaring  the  contingent  liability 
of  the  defendant  at  the  time  of  the  settlement  of 
accounts  M  APPAJEB  PILLAI  v.  MAMKA  MCDALI,  21  L 
W  652  30 

provident  Funds  Act   (IX  of  1897),  s.  2    (4). 
See  PROVINCIAL  INSOLVENCY  ACT,  1920,  s  28         673 

Provincial  Insolvency  Act  (V  of  1920).    See  ALSO 

INSOLVENCY 
--  —  __3t  2  (d)  —  Hindu  Law—  Joint  family  —  Father, 

insolvency   of  —  Family  property,  whether   vests    in 

Receiver. 

On  an  adjudication  of  a  Hindu  father  as  an 
insolvent  under  the  Provincial  Insolvency  Act,  1820, 
the  joint  property  of  the  family  does  not  at  once  vest 
in  the  Receiver  A  ALLAHABVD  BANK  LD.  v  BHAGWAN 
DAS  JOJURI,  24  A  L  J  323,  A.  I  R.  1916  All.  262 

309 

-  8.  4.    See  PROVINCIAL  INSOLVENCY  ACT,  19?0, 
s  56  573 

-  -  —  s.  4  —  Hindu  father  adjudicated  insolvent  — 
Objection  of  sons  to  sale  by  Hecvwer-^Ordtr  for  sale 
without  deciding  rights  o/  parties^  whether  proper. 
Where  a  Hindu  father  is  adjudicated  an  insolvent 

and  the  sons  apply  to  the  Court  objecting  to  t&e  sale 
of  the  entire  family  properties  advertised  hy  tie 
Receiver  on  the  ground  that  they  were  divided  and 
that  their  share  ought  not  to  be  sold,  the  Court  ought 
not  to  allow  the  insolvent's  interest  in  the  property 


U80 


INDIAN  OASES. 


[1926 


Provincial  Insolvency  Act-  1920—  contd. 


e  sold  leaving  it  to  future  litigation  to  determine 
the  rights  of  parties. 

The  Official  Receiver  has  the  power  under  the  Pro- 
vincial Insolvency  Act  to  sell  the  shares  of  the  sons 
to  a  Hindu  insolvent  unless  the  sons  make  out  that 
their  shares  are  not  bound  to  liquidate  the  debt  con- 
tracted by  their  father  The  Court,  therefore,  ought 
to  inquire  and  decide  on  the  rights  of  parties  M 
AKBLLA  RAMABOMAYYAGULA  v.  OFFICIAL  RECEIVER, 

GODAVARIRAJAHMUNDRY,   23   L.    W.  80,    (1926)  M    W.  N. 

109;  A.  I.  R.  1926  Mad  360  249 


88,    10,   24,   25—  Debtor's   petition      to   be 

adjudicated    insolvent— Prim  a     facie     evidence    of 

inability  to  pay  debts— Inquiry  as  to  reality  of  debts, 

whether  proper. 

When  a  person  presents  a  petition  to  be  adj  udicated 
an  insolvent,  the  petition  itself  is  treated  as  an  act 
of  bankruptcy  under  the  Insolvency  Law  And 
where  he  states  that  his  liabilities  are  more  than  his 
assets,  that  must  be  taken  as  prima  facie  evidence 
that  he  is  unable  to  meet  his  liabilities  which  13 
the  only  thing  the  Court  haa  to  consider  for  the  pur- 
pose of  adjudicating  the  debtor  an  insolvent. 

No  inquiry  ought  to  be  held  at  that  stage  as  to 
the  reality  of  the  debts.  Such  an  inquiry  into  tho 
bona  fide*  of  the  insolvent  is  proper  only  when  he 
applies  for  discharge  and  not  before,  M  RACUARLA 
NAEAYANAPPA  v.  KONDIGI  BHEEMAPPA,  AIR.  1926  Mad 
494  541 
8.  24 — Hindu  Law— Joint  family—Debt? 

incurred  by  father— Sons,  whether  can  be  adjudicated 

insolvents. 

In  the  case  of  a  joint  Hindu  family,  if  the  father 
incurs  debts  and  dies,  th^  other  members  of  the 
family  do  not  stand  towards  him  in  the  relation  of 
heirs;  they  only  succeed  to  him  and  the  debts  are 
binding  upon  them.  In  such  a  case  the  other  members 
are  liable  to  be  adjudicated  insolvents  in  respect  of 
the  debts  incurred  by  the  father.  M  M  A.  A.  R.  M. 
P.  MUTHU  VBERAPPA  OHETTIAR  v  U  K  SIVAGURUNATHA 
PILLAI,  22  L.  W.  617;  49  M  L.  J.  697,  (1926)  M.  W  N. 
63;  A.  I.  R.  1926  Mad.  133;  49  M.  217  603 

8.  28—  Civil    Procedure    Code    (Act  V    of 

1908),  s.  60—Provident  Funds  Act  (IX  of  1897),  s    2 

(h)— "Compulsory     deposit",    meaning    of — Deposit 

paid '  tut    to  insolvent — Attachment. 

A  "compulsory  deposit"  within  the  meaning  of  s.  2 
(4),  Provident  Funds  Act,  is  such  deposit  only  so  long 
as  it  remains  in  the  fund,  and  not  after  it  has  been 
paid  over  to  the  person  to  whose  credit  it  liad  hitherto 
stood. 

Therefore,  a  compulsory  deposit  under  the  Pro- 
vident Funds  Act,  after  it  has  been  paid  out  of  the 
funds  to  an  insolvent,  is  not  exempt  from  attachment. 
O  GAURI  HHANKAR  v  DECREE,  3  0.  W  N.  378  673 
88.35,61  (6)—  Annulment  of  adjudication 

— Payment  of  debts  in  full^-  Release  of  debt,  whether 

payment — Interest  subsequent  to  date  of  adjudication 

whether  must  be  paid. 

Even  an  unconditional  release  of  his  debt  by  a 
creditor  does  not  amount  to  a  payment  in  full  of  the 
debt  within  the  meaning  of  s.  35  of  the  Provincial  In- 
solvency Act. 

Before  the  provisions  of  s.  35  of  the  Provincial 
Insolvency  Act  can  be  availed  of,  all  the  debts  of  the 
insolvent  must  be  discharged  in  full.  Interest  subse- 
quent to  the  date  of  the  adjudication,  though  it  cannot 
be  taken  into  account  at  the  time  of  the  first  distribu- 
tion of  the  dividends,  has  to  be  paid  out  of  the  assets 


Provincial  Insolvency  Act— 1 920— contd. 

of  the  insolvent  if  they  are  sufficient  for  the  purpose, 
and  is,  therefore,  a  part  of  the  debt.  Such  interest 
must  be  paid  before  the  benefit  of  s.  35  can  be  claimed. 
A  MUHAMMAD  IIJRAHIM  v  RAM  CHANDRA,  24  A.  1-.  J.  244; 
A.  1  R.  1926  All.  289,  48  A.  272  514 


SS,  42,  28     (2)— -Discharge,   refusal  of- 


Execution    of     decree-  Leave    of    Court,    whether 

necessary. 

Where  an  Insolvency  Court  refuses  the  discharge 
of  an  insolvent  under  s.  42  of  the  Provincial  Insol- 
vency Act,  the  proceedings  are  terminated  as  far  as 
the  Inbolvency  Court  ie  concerned,  and  the  insolvent  is 
thereafter  liable  to  be  arrested  in  execution  of  any 
decree  without  the  leave  of  the  Court.  R  MAUNO  Po 
TOKE  r.  MAUNG  Po  GYI,  3  K  4'J2,  A.  I  K  1926  Kang.  2 

142 

S8.    43,      75— Adjudication—Period      for 

applying  for  discharge  not  specified— Subsequent 
addition  without  notice  to  paitics,  whether  operative 
— Failure  to  apply  for  discharge — Annulment  of 
adjudication — Appeal  by  creditors,  whether  main' 
tamable,—  Persons  aggrieied. 

Where  a  person  is  adjudicated  an  insolvent  at  the 
instance  of  his  creditors,  and  the  order  of  adjudication 
is  subsequent!)  annulled  under  s  43  of  the  Provincial 
Insolvency  Act,  the  creditors  aie  the  aggrieved  parties 
and  an  appeal  against  the  order  annulling  the 
adjudication  is  maintainable  at  the  instance  of  the 
creditor?. 

Where  an  order  of  adjudication  did  not  fix  a 
period  within  which  the  insolvent  was  to  apply  for  his 
discharge  but  an  addition  was  subsequently  made  to 
the  order  behind  the  back  of  the  parties  fixing  such 
period 

Held,  (1)  that  the  subsequent  addition  could  not  be 
treated  as  a  part  of  the  order  of  adjudication  and  was, 
therefore,  inoperative, 

(2)  that  no  time  having  been  fixed  in  the  order  of 
adjudication  within  which  the  insolvent  was  to  apply 
for  his  discharge,  s.  43  of  the  Provincial  Insolvency 
Act  had  no  application  to  the  case,  and  the  order  of 
adjudication  could  not,  therefore,  be  annulled  for 
failure  of  the  insolvent  to  apply  for  his  discharge 
\vithin  the  period  specified  in  the  subsequent  addition 
to  the  order  of  adjudication  ; 

A  wrong  order  becomes  final  unless  set  aside  in 
accordance  with  law  L  FIRM  JAI  SINGH-DIYAL  SINGH  v. 
NARMAL  DAS,  7  L.  L  J.  553,  A.  1  H.  1926  Lah.  24 

235 

8.  50.    See  C  P.  C  ,1908,  0  XXI,  R  58      14 

3.  52— Money-decree-holder  obtaining  security 

in  execution  proceedings,  whether  secured  creditor. 
The  exemption  from  the  operation  of  s.  52,  Provincial 
Insolvency  Act,  given  to  secured  creditors  must  be 
extended  to  money-decree-holders  who  have  obtained 
securities  in  the  course  of  execution  who  must  also 
be  treated  as  secured  creditors  for  purposes  of  the 
section.  M  OFFICIAL  RECEIVER  v.  NAGARATNA  MUDALIAB, 
49  M.  L.  J.  643;  (1925)  M.  W  N.  907;  A.  I.  R.  1926  Mad. 
191  497 

3.  53— Fraudulent  preference— Intention  of 

insolvent—Creditor's  motive,  whether  material, 
In  a  case  of  fraudulent  preference  it  is  not  neces- 
sary for  the  Official  Receiver  to  make  out  that  the 
property  alienated  was  undervalued.  The  gist  of 
fraudulent  preference  lies  in  preferring  one  creditor 
to  another  when  the  insolvent  is  unable  to  meet  bis 
liabilities  fully, 


Vel, 


GENERAL  INDEX. 


1131 


Provincial  Insolvency  Act— 1920— oontd. 

In  such  a  case  the  Official  Receiver  has  only  to 
make  out  the  intention  of  the  insolvent.  The  intention 
or  motive  of  the  creditor  is  immaterial.  Even  if  the 
creditor  takes  a  bona  fide  sale  from  the  insolvent  in 
discharge  of  a  debt  to  him,  that  does  not  make  the 
transaction  a  valid  transaction  if  the  intention  or  the 
view  of  the  insolvent  is  to  prefer  that  creditor  to 
other*.  M  BOHISETTI  MAMAYYA  v,  OFFICIAL  RECEIVER,  23 
L.  W.  10;  (1926)  M.  W.  N,  124;  A.  I.  R,  1926  Mad.  338 

726 
, SS.  53,  54,  difference  between— Encumbrance 

created   within    two  years    of    adjudication — Con- 

eider ation-~~Good  faith — Burden  of  proof. 

Where  an.  incumbrance  created  by  an  insolvent 
within  two  years  of  his  adjudication  is  challenged  in 
the  Insolvency  Court  the  onus  lies  on  the  incumbran- 
cer  to  prove  both  good  faith  and  valuable  considera- 
tion. 

There  is  a  radical  difference  between  s.  53  and  s.  54 
of  the  Provincial  Insolvency  Act.1  Under  s  54  the 
Court  is  not  concerned  with  the  motive  of  the  trans- 
feree but  only  with  that  of  the  debtor.  It  is  he  who  is 
said  to  have  given  the  preference  and  whether  the  trans- 
feree acted  in  good  faith  or  not  is  immaterial  Where, 
however,  the  three  months'  limitation  contemplated  by 
8  54  has  expired,  it  is  open  to  the  transferee  to  prove 
that  whatever  the  motive  of  the  transferor  may  have 
been,  he  on  his  part  acted  in  good  faith.  And  where 
the  consideration  of  the  transfer  fr  a  past  debt  the 
transferee  stands  in  a  better  position  than  otherwise. 
He  has  his  own  interests  to  serve  and  owes  no  duty 
to  the  other  creditors  to  protect  tReir  interests.  He  is 
in  the  absence  of  any  statutory  limitation  imposed  by 
the  Law  of  Bankruptcy,  as  much  at  liberty  to  secure 
the  payment  of  his  debt  by  superior  diligence  as  by 
accepting  a  voluntary  preference  provided  he  goes  no 
further  than  what  is  necessary  to  serve  his  own  pur- 
pose. 8  OFFICIAL  RECEIVER  v  LAC«MIUAI,  A  I.  R,  1Q26 
Sind  140  5 
S.  54— Preference  of  one  creditor  over  others 

— Mortgage  securing  old  and  new  loans. 

A  transfer  cannot  be  avoided  merely  because  its 
effect  is  to  give  one  creditor  preference  over  other 
creditors  unless  the  debtor  intends  to  do  so 

Where  a  debtor  who  is  unable  to  meet  his  liabili- 
ties and  stands  in  need  of  further  accommodation, 
approaches  one  of  his  creditors  for  a  further  loan,  and 
executes  a  mortgage  securing  both  the  fresh  and  the 
previous  loans,  it  cannot  be  said  that  he  intended  to 
prefer  that  creditor  over  others,  *but  merely  that  he 
wanted  to  benefit  himself.  L  MOTI  MAL-RAM  SARUP  v 
DAULAT  RAM,  A.  I.  R.  1926  Lah  231  296 

— 88.  56,    4 — Official    Receiver^    powers  of — 

Stranger  in    possession    of  property — Insolvent  not 

entitled  to  present  possession — Power    of  Court    to 

dispossess — Remedy — Question  of  titlet  decision  of — 

Procedure. 

The  position  of  the  Official  Receiver  under  the 
Provincial  Insolvency  Act  is  the  same  as  that  of  a 
Receiver  appointed  under  0.  XL,  0.  P.  0. 

The  Insolvency  Court,  therefore,  cannot,  acting 
under  a.  56  of  the  Provincial  Insolvency  Act,  direct 
any  person  to  deliver  up  property  in  his  possession 
to  the  Official  Receiver  unless  the  insolvent  is  en* 
titled  on  the  date  of  such  application  to  the  present 
possession  of  such  property.  If  a  title  is  set  up  by 
ibp '  person  in  possession,  it  is  open  to  the  Court  on 
*  proper  application  being  made  under  a.  4  of  the 
Act  to  try  the  issue  whether  the  insolvent  is  en* 
the  property  or  not. 


Provincial  insolvency  Act— 1920-concld, 

Where  an  order  is  passed  under  s.  56  (3)  of  th 
Provincial  Insolvency  Act  it  does  not  determine  the 
rights  of  the  parties  and  though  the  Judge  may 
incidentally  determine  the  question,  yet  it  cannot 
be  said  that  the  question  is  finally  determined 

No  body  other  than  the  Official  Receiver  can  move 
under  s  4  of  the  Provincial  Insolvency  Act  unlefA 
the  Official  Receiver  is  unwilling  to  act  and  the 
Court  authorises  a  creditor  or  any  other  person 
interested  in  preserving  the  insolvent's  estate,  to  act 
under  that  section  in  the  name  of  the  bfficial 
Receiver. 

The  power  given  to  an  Insolvency   Court  by  s.  4  of 
the  Provincial  Insolvency  Act  is  subject  to  the  pro- 
visions of  the  Act,  one  of  which  is  the  proviso   to  •. 
56  (3)  which  is  in    the  way  of  the  Court  removing 
^any  person  from  the  possession  of  property  whom  the 
^insolvent  has  no  present  right  to  remove.    M  CHITTAM- 

MAL  V.  PONNUSAMI  NAICKER,  23  L.  W.    D4;    (1926)    M.  W. 

N.  121  &  172,  50  M.  L.  J.  180,  A.  I.  R.  1926  Mad.  363 

573 
8.  61  (6).  See  PROVINCIAL  INSOLVENCY  ACT, 

1920,  s.  35  514 
8. 75,  See  PROVINCIAL  INSOLVENCY  ACT,  1920, 

s.43  235 

Provincial  Small  cause   Courts  Act   (IX    of 

18 87) ,8  17 — Ex  parte  decree,    application   to  set 

aside — Tender  of     decretal   amount— Deposit  made 

after  expiry  of  limitation — Substantial  compliance. 

An  application  to  set  aside  an  ex  parte  decree  was 

presented  on  the    last  day  of  limitation  at  about  3 

p.   M     It  was  accompanied  by  a  tender  of  the  amount 

payable   under   s  17  of  the  Provincial  Small  Cause 

Courts  Act,  but  as  no   payments  were  passed  by  the 

treasury  after  12  noon,  the  money  was   not  actually 

deposited  in  the  treasury  till  the  following  day 

Held,  that  there  was  a  substantial  compliance  with 
the  provisions  of  s  17  of  the  Provincial  Small  Cause 
Courts  Act.  A  GANGA  DHAR-BAIJ  NATH  v.  B.  B.  &  C 
L  Ry ,  24  A.  L.  J.  328  522 

™ —  s.  23 — Suit  involving  question  of  titlet  whether 

of  small  cause  nature. 

A  Small  Cause  Court  is  entitled  to  decide  a  question 
of  title  if  it  arises  incidentally,  but  where  the  plaint 
and  the  written  statement  show  that  the  issue  to  be 
fought  out  and  decided  is  one  of  title,  the  suit  cannot 
be  considered  to  be  one  of  small  cause  nature.  M 

PRAYAGA      DOSS    JfiEVARU     V.      PACHELLA      DORAISWAMI 

IYENGAR,  23  1 1.  W.  520;  A  I  R  1926  Mad.  656  899 
S.  25— -Order  returning  plaint— Title  to 

immpveable  property  involved — Erroneous    finding— 

Revision— Interference  by  High  Court. 

A  High  Court  is  entitled  to  interfere  in  revision 
under  s.  25  of  the  Provincial  Small  Cause  Courts  A't  t 
with  an  order  returning  a  plaint  for  presentation  to 
the  proper  Court. 

Under  this  section  the  duty  of  the  High  Court  is  to 
see  whether  the  particular  decree  or  order  complained 
of  is  according  to  law. 

A  Small  Cause  Court  fails  to  exercise  a  jurisdiction 
vested  in  it  in  returning  a  plaint  for  presentation  to 
the  proper  Court  on  the  ground  that  the  plaintiffs 
success  or  failure  in  the  suit  depended  upon  a  question 
of  proof  or  disproof  of  title  to  immoveable  property, 
where  the  question  of  title  does  not  really  arise*  N 
CHANDSABHAGA  BAI  v.  BAKARAM,  A.  1  R.  1920  Nag  $76 

73  S 
8.  28— Civil  Procedure  Code  (Act  V  of  1908), 

0,  VII,  r.  10—Diitrict  Murwi/  ea»rcwnf  mall  cause 


1132 


INDIAN  CASES. 


[   >J! 


Provincial  Small  Causa  Courts  Act— coucld.     ,       Punjab  courts  Act— conoid. 


whether  bound  by  judicial  order  of 
District  Judge  on  appeal  from  Revenue  Court — 
Order  of  District  Judge  holding  suit  as  cognisable 
by  Civil  Court,  effect  of. 

A  District  Munsif  acting  as  a  Small  Cause  Court 
Judge  ie  subject  to  the  administrative  control  of  the 
^District  Court  under  s  28  of  the  Provincial  Small 
Cause  .Courts  Act,  but  he  is  not  bound  by  an  order 
of  the  District  Judge  passed  in  his  judicial  capacity 
on  an  Appeal  from  a  Revenue  Court. 

Where,  therefore,  a  District  Judge  on  appeal  from 
a  Revenue  Court  holds  that  a  suit  is  cognisable  by 
the  Civil  Court,  and  in  pursuance  of  such  order  the 
plaint  is  presented  in  the  Court  of  a  District  Muneif 
oa  the  small  cause  side,  the  latter  is  not  bound  by 
Jthe  order  of  the  District  Judge,  and  is  at  liberty  to 
hold  that-  the  suit  is  not  cognisable  by  a  Civil  Court 
rW  KALTRA  SAHIB  v.  PUBBARAYA  AYYAR,  23  L.  W.  99; 
(1926)  M,  W.  N.  123  &  178,  A.  I.  R  1926  Mad.  365 

621 

— $Ch,    II,    Art.  8-  Transfer  of  Property  Act 

(IV  of  1S82),    s.  105  -Basements  Act   (V  of  1882), 
8.  52— Allowing    cattle    to    pass   through    field  on 
payment— License  or  lease — Suit  for    recovery    of 
amount—Small  Cause  Court,  jurisdiction  of. 
An  agreement  by  a  person  to  pay  a  ceitain  quantity 
of  grain  every  year   to  the   cultivator   of  a  field,  on 
account  of  the  damage  to  be  sustained  by  him  owing 
to  the  cattle  of  the  former  passing  over  a  strip  of  land 
in  his  field,  is  not  a  license  but  a  lease,  as  it  creates 
a  right  in  such  person,   which  could  be  exercised  by 
hi«  transferees  or  his  servants  and  could  not  be  revok- 
ed by  the  grantor. 

A  suit  for  recovery  of  value  of  such  grain  is,  there- 
for*, a  suit  for  the  rent  of  a  field  and  is  not  triable 
by «  Small  Cause  Court  N  INDAL  v  DEBT,  A.  I.  R 
1926  Nag.  174  683 

Aft,  1  S— Suit  for   cesses  improperly 

collected—Second  appeal. 

Article  IS  of  Sch.  II  to  the  Provincial  Insolvency 
Act  applies  only  when  the  claim  is  directly  against 
the  person  who  is  primarily  liable  to  pay  the  cesses 
or  dues  and  by  whom  they  are  originally  payable  and 
a  suit  against  a  person  who  has  improperly  collected 
the  dues  from  the  party  primarily  liable  is  beyond  its 
scope.  Therefore,  no  second  appeal  lies  in  such  a  suit, 
t  TAJ  MOHAMMAD  v.  FARID  KHAN,  A.  I  R  1926  Lah. 
276  779 

Arts.  18,  35  (II)— Suit  for  recovery 

of  offerings—Limitation  Act  (IX  of  ]90S)t  Sch.  /, 
4rt.  02—  Nature  of  suit—Second  appeal. 
A  euit  for  the  recovery  of  offerings  of  a  shrine  from 
a  person  who  has  wrongfully  appropriated  them   is 
governed  by  Art.  62  of  Rch  I  to  the  Limitation  Act. 

{Such  a  suit  as  the  above  falla  under  Art.  18  of  the 
Second  Schedule  to  the  Provincial  Small  Cause  Courts 
Act  as  it  relates  to  a  trust,  and  also  probably  under 
Art.  35  (ii),  so  that  it  is  an  UD classed  suit,  and  not  a 
small  cause,  and  a  second  appeal,  therefore,  lies       L 
NiBAL  SitfoH  v.  SECRETARY,  GURPWAKA  TEGII  BAHADUR, 
A.  I K,  1926  Lah.  228       .  731 
Punjao  Court*  Act  (VI  of  1913),  s.  41.    See 
Ouaroii— WIDOW                                              725 
-s,  41  (3)  —Appeal,  second  -Certificate  grant- 
ed on  mistaken  prown'o*.  validity  of. 
Where  a  District  Judge  grants  a  certificate  under 
g,  41  (3)  of  the  Punjab  Courts  Act  with  regard  to  a 
question  of  custom  for  the  reason  that  the  appellant 
is  anyhow  appealing  on  the  question  of  the  ancestral 
the  laud  and  that  it  ifi  advisable  that  ta 


should  be  given  a  certificate  in  order  that  he 
agitate  every  question  which  has  arisen  in  the  case 
and  it  is  not  stated  in  the  certificate  that  the  various 
requirements  of  the  section  have  been  fulfilled,  the 
certificate  is  bad  and  will  be  ignored  by  the  Hiih 
Court  L  MAHTAB  SHATI  v  ALI  HAIDER  SHAH,  <>  L.  Sflfe; 
A.  I.  K  1U25  Lah.  429;  7  L.  L.  J.  190  709 

Punjab  Land  Revenue  Act  (XVII  of  1887), «.  44. 

See  MORTGAGE  531 

— —  -s.  117— Suit  for  possession — Jurisdiction  of 

Revenue  Courts 

A  Kevenue  Officer  acting  as  a  Court  may  determine 
the  question  of  title  arising  in  the  partition  proceed- 
ings but  has  no  power  to  pass  a  decree  for  possession 
of  the  land  of  which  the  title  is  m  dispute.  L  NAIUIN 
DAS  v.  SIRAJ  DIN,  A.  1  K  1!)2J  Lah.  23tf  9&0 

Punjab  Limitation  (Custom)  Act  (I  of  -1920), 

SS.  5, 6,  scope  of —Limitation  Act  (IX  of  1908),  6, 
0,  8 -Declaratory  suit  by  reversioner  after  majority 
—Limitation. 

Section  6  of  the  Punjab  Limitation  (Custom)  Act  of 
1920  really  gives  an  additional  period  of  one  year  to 
those  who  were  at  the  time  of  the  enforcement  of  the 
Act  entitled  to  institute  euits,  but  could  be  success- 
fully met  by  a  plea  of  limitation  owing  to  the  repeal 
of  the  Punjab  Limitation  (Ancestral  Land  Aliena- 
tion) Act  of  190D,  and  the  consequent*  reduction  of  the 
limitation  by  the  new  Act  Thft  section,  however, 
does  not  control  the  operation  of  s.  5  of  the  Act. 
A  father  governed  by  Punjab  Custom,  having  a 
minor  sou,  sold  Certain  ancestral  propeity  on  1st 
April  1913,  The  son  attained  his  majority  on  I3rd 
July  1921.  In  a  suit  by  the  son  instituted  on  23rd  May 
1923,  for  a  declaration  that  the  sale  being  without 
necessity  would  not  affect  his  reversionary  rights 
it  was  objected  that  the  limitation  of  12  year«  pre- 
scribed for  the  suit  by  Punjab  Limitation  (Ancestral 
Land  Alienation)  Act  of  1900  having  been  reduced 
to  six  years  under  Punjab  Limitation  (Custom)  Act  of 
1920,  the  suit  was  governed  by  s.  6  of  the  Act,  and 
not  having  been  brought  within  one  year  of  the 
operation  of  the  said  Act  was  barred  by  limitation 

Held,  that  s  6  of  the  Act  did  not  apply  to  the  cage, 
and  the  suit  was  within  time  tinder  B  5  of  the  Act, 
read  with  s&.  6  and  8  of  the  Indian  Limitation  Act  of 
1908  L  MAHOMED  OHAUS  v.  MAHOMED  ALI  SHAH,  A,  I. 
R  1920  Lah,  188  294 

Punjab  Municipal  Act  (III  of  1911),  ss.  172, 193 
— Tacit  sanction —Erection  of  building 
The  tacit  sanction  provided  for  by  s  193,  Punjab 
Municipal  Act,    covers   only   erections  of  buildings 
entirely  within  the  bounds  of  a  person's  own  land 
but  does  not  cover  a  projection  or  structure  over- 
hanging   or    encroaching  upon  any  street    or  road. 
L  MUNICIPAL  COMMITTEE  v.  MCL  KAJ  765 

8.  193,  proviso— -Suit  for    declaration  of 

ownership  of  site — Municipal  Committee's  owntrthip, 
question  of. 

In  a  suit  for  a  declaration  that  the  plaintiffs  are 
owners  of  a  site,  which  arises  in  consequence  of 
Municipal  Committee's  refusal  to  permit  the  plaintiffs 
to  build  on  the  site,  on  the  ground  that  there  is  a  dis- 
pute about  the  ownership  of  the  site  between  tlje 
applicant  and  the  Municipal  Committee,  it  is  enough 
to  decide  whether  plaintifls  are  entitled  to  the  propeity 
or  not  and  it  is  not  necessary  to  give  a  finding  «s  $o 
whether  the  property  belongs  to  the  Committee  or  not. 
t  ALLAH  UAKHSH  v.  MVNICIPAI.  COMMITTED  A.  1. 
10?0  Lah.  US3  »« 


Vol.  92J 


GENERAL  INDEX. 


Punjab  Pre-emption  Act  (I  of  1913),  s.  16 
(fourtlvly)— Common  entrance  from  street— Permis- 
am*  iwer  of  compound,  whether  entrance-  -Practice 
a>nd  pleadings^—Appeal — Case,  whether  can  be  decided 
on  jjJea  not  raised  in  pleadings 
Plaintiff  sued  for  possession  of  a  house  by  rirfit  of 
pre-emption  on  the  giound   tbat  his   house  adjoined 
the  house  in  suit  and  had  a  common  entrance  with  it 
ftfom  the  street.    The  \endee    whose  house    was  also 
contiguous  to  the  house  in  suit,  denied  that  the  plaint- 
iff ha\l  a  superior  right    and  pleaded    that  he    had    a 
right  of  way  through  the  compound  of  the  house  in  suit 
It  was  found  that  the  vendee  was   not  a  joint  owner 
of  the  compound  in  which  the  plaintiff's  house  and  the 
house  in  suit  were  situated,  and  that  he  had  no  right 
of  way  over  the    compound  as    his  use  of  it   had  only 
been  permissive.    The  lower  Appellate  Court,  however, 
d&missed  the  plaintiff's  suit  on   the  ground   that  the 
defendant's  house  as  well  as  the  plaintiff's  had  a  com- 
mon entrance  with  the  house  in  suit  from   the  street 
and  that,    therefore,  they    had    equal    rights  of  pre- 
emption 

Held,  (1)  that  the  lower  Appellate  Court  was  wrong 
in  dismissing  the  plaintiff's  suit  on  a  ground  which 
had  not  been  raised  by  the  defendant  in  his  pleadings, 
£2)  that,  in  any  case,  on  the  findings  it  could  not  be 
ssid  that  the  defendant's  house  had  an  entrance 
through  the  compound  m  which  the  plaintiff's  house 
and  the  house  in  suit  were  situated  , 

(31  that,  therefore,  the  plaintiff's  suit  must  succeed 
L*  ASA  NAND -v  MAHMUD,  7L  L  J  542  241 

Punjab  Tenancy  Act  (XVI  of  18S7),  as.  50,77 
(3>  (g),  (I)— Limitation  Act  (IX  of  1008),  s  18— 
La/ndlord  and  tenant— Dispossession  of  tenant  by 
landlord— Suit  by  tenant  to  recover  possessw?i — 
Jurisdiction  of  Civil  and  Rcienue  Courts— Fraud 
--Extension  vf  limitation 

Sub*clauses  (g)  and  (i)  of  s  77  (3)  of  the  Punjab 
Tenancy  Act  cover  all' conceivable  causes  of  litigation 
between  a  landlord  and  his  tenant  qua  tenant,  and  an 
exytenant  in  that  capacity,  can  look  for  no  relief 
outside  the  Revenue  Courts* 

If  a  tenant,  who  has  been  wrongfully  dispossessed 
of  his  tenancy  in  the  circumstances  mentioned  in 
e.  50  of  the  Punjab  Tenancy  Act,  allows  the  period  of 
one  year  prescribed  by  that  section  to  expire  without 
bringing  a  suit  in  the  .Revenue  Court,  he  loses  his 
remedy  altogether,  and  by  the  combined  operation  of 
68.  50  and  77  (3)  (g)  is  debarred  from  bringing  a  suit 
for  recovery  of  possession  or  for  compensation  or  for 
both  in  a  Civil  Court, 

la  a  suit  by  a  tenant  to  recover  possession  of  his 
holding  from  which  he  has  been  dispossessed  by  the 
landlord,  it  is  not  any  alleged  fraud  by  which  dis- 
possession was  carried  out  by  the  landlord  which  is 
pertinent  for  the  purposes  of  s  13  of  the  Limitation 
,  but  the  fraud  by  which  the  plaintiff  lias  been  kept 
the  knowledge  of  his  right  to  institute  a  suit  L 
RAM  v.  JSHAR,  7  L.  L.  J  600,  A.  I  R  1925  Lah- 
128  597 

Railway  Company.    See  CARRIAGE  OF  GOODS      532 

RfcHVWaysAct(IXQf  1890),  S,  72— Ri*k  Note  B, 
,  g&ods  consigned  under — Loss,  damages  for,   suit  to 
r^over— Liability  of  Railway.  Company,  extent  of 
\  -^Burden  of  proof 

.Under  Risk  Note  Form  B,  all  that  is  required  is  that 
the  standard  of  the  carrier  should  not  fall  below  the 
cftnattoon  practice  of  the  Railway,  and- it  is  only  when 
the  loss  is  due  to*  some  act  of  dereliction  of  duty 
reduced  the  standard  to  somewhat  below 


Railways  Act— contd 

the  ordinary  standard  of  precaution  that  the  Railway 
Company   is  liable  under  the  Risk  Note 

In  a  suit  to  recover  damages  from  a  Railway  Com- 
pany for  the  loss  of  goods  consigned  to  the  Company 
for  carnage  under  Risk.  Note  Form  B,  it  is  necessary 
for  the  plaintiff  to  show  that  the  loss  was  due  tO' wilful 
neglect  or  other  contingency  which  renders  the  Com- 
pany liable  under  the  terms  of  the  Risk  Note.  8 
JBTHANAND  TEKCHAND  v.  SECRETARY  OF  STATE  FOB  INDIA 

371 

38.75)30 — Goods  requiring  to   bt  insured 

consigned  for  carriage  over  two  Railways — Non-de- 
livery --  Suit  for  compensation  against  Railway  other 
than  that  to  which  goods  consigned — Insurance, 
absence  of — Lew,  proof  of — Liability  of  Railway 
Company 

In  a  suit  to  lecover  compensation  from  a  Railway 
Company  for  the  non-delivery  of  articles  of  special 
value,  consigned  to  the  Company  for  carriage  the 
latter  can  claim  protection  under  s  75  of  the  Railways 
Act  only  if  it  is  proved  that  the  articles  have  been 
lost  If  the  articles  are  still  in  the  possession  of  the 
Railway  Administration  and  it  fails  to  deliver  the 
articles,  it  cannot  take  advantage  of  the  provisions  of 
s  75 

Where,  however,  the  suit  is  brought  not  against  the 
Railway  to  which  the  goods  were  delivered,  butagainst 
a  Railway  over  whose  system  they  had  subsequently 
to  be  earned,  the  snit  is  maintainable,  under  s  80 
of  the  Railways  Act,  only  on  the  assumption  that  the 
goods  have  been  lust  while  in  the  custody  of  such 
Railway,  and  the  latter  is,  therefore,  entitled  to  claim 
the  protection  of  s  75  of  the  Act,  without  any  further 
proof  of  the  loss  of  the  goods 

When  goods  delivered  to  a  Railway  Company  for 
carnage  aie  not  forthcoming  for  delivery  at  the  desti- 
nation and  their  whereabouts  are  not  known,  it 
must  be  assumed  that  they  have  been  lost  A  OHANDKA-- 

BHAN  PUAKASHNATH  V    E    I    RY    Co  ,  24  A    L   J    305,  A.  I. 

R  1926  AIL  290  622 

SS.  77, 140— Suit  against  Railway— Notice 

to  officer  other  than  Agent,  validity  of. 

The  mere  fact  that  the  Agent  of  a  Railway  Compatijr 
constitutes  a  department  for  the  registering  and 
investigation  of  claims,  and  that  a  claim  is  preferred 
to  that  department,  does  not  absolve  the"  person 
making  the  claim,  if  he  intends  to  sue  the  Railway 
Company,  from  giving  notice  to  the  Company  as  pre- 
scribed by  s  77  read  with  6  140  of  the  Railways  Act, 

When  a  person  claiming  against  a  Railway  Com-' 
pany  must  be  presumed  to  know  that  he  must  do  a 
certain  act  in  a  certain  way  within  a  fixed  time,  with* 
out  which  preparatory  step  a  suit  will  not  be  com- 
petent, ho  is  not  prevented  from  taking  that  step3 
because  he  has  been  told  that  his  claim  is  receivuig 
attention  and  no  further  answer  is  received1  before 
the  expiry  of  the  period  of  limitation  On  the  ooa* 
trary  the  fact  that  his  claim  is  not  being  attended  t& 
is  sufficient  to  warn  him  tliat  if  he  wants  to  prosecute 
his  claim  m  Court  he  must  do  what  the  law  requires; 
B  G  I  P  RY  Co  v  CHANDULAL  SHBOPARTAP,  27  Boin. 
L  R.  1500,  A  I  K.  1926  Bom  138,  50  B.  84  548 

S.  80— Good*  consigned  to  Railway  Company 

—Carriage  over  systems  of  more  Railways  than  one—* 
Liability  of  other  Railway  Companies-* Low,  proof 

of* 

Where  goods  are  delivered  to  one  Railway  Adminis- 
tration |or  carriage,  another  Railway  Administration 
over  whose  system  the  goods  had  to  be  carried  cao 


1134 


INDIAN  OASES. 


[1026 


Railways  Act— concld 

held  liable  for  the  loss  of  the  goods  only  if  it  is  proved 
that  the  loss  occurred  on  that  Railway.  L  DARBARI 
MAL-RAM  SAHAI  v.  SECRETARY  OP  STATB,  6  L  499;  A.  I.  K. 
1926  Lah.  116  332 

-: 8.  145  (2).    See  CR,  P.  C,(  1898,  s.  493  697 

Rangoon  Rent  Act  (II  Of  1920),  s.  13—  Enhance- 
ment of  rent— Consent  of  tenant,  effect  of— Illegal 
excess  recovered  by  landlord— Set-off,  tenant  whether 
entitled  to. 

^either  acquiescence  nor  consent  on  the  tenant's 
ptfft  can  entitle  the  landlord  to  make  an  enhancement 
of  rent  in  contravention  of  the  provisions  of  the 
Rangoon  Kent  Act. 

Where  a  landlord  has  recovered  rent  in  excess  of 
the  rent  legally  payable  under  the  Act,  the  tenant  is 
entitled  to  set  off  the  amount  so  recovered  by  the 
landlord  as  against  the  rent  which  accrues  due 
subsequently,  R  SAYARKSB  v  WAKF  ESTATE  OF  ISMAIL 
AHMAD  MADA,  A,  I,  R.  1925  Rang.  376,  4  Bur.  L.  J 
157  771 

Receiver.   See  ALSO  C  P.  0.,  1908,  0.  XL 

,  appointment  of,  effect  of.  See  CONTRACT  ACT, 

1872,  s.  251  705 

— ^ Sapurddar  of  attached  property— Failure  to 

deliver  property.  See  PENAL  CODE,  1860,  s  403  585 

Registration  Aot  (XVI  of  1908),  8.  2  (7)- Receipt 

given  by  lessor — Lease— -Registration. 

A  receipt  granted  by  a  lessor,  reciting  that  the 
lessee  had  paid  a  certain  earnest-money  and  taken  a 
lease  of  certain  property,  for  a  certain  term,  for  a 
certain  amount,  payable  in  specified  instalments,  con- 
taining a  recital  that  a  formal  lease-deed  would  be 
executed  next  day,  as  no  stamp  was  available  at  the 
time,  is  a  "lease"  within  s.  2  (7)  of  the  Registration 
Act  and  i«  inadmissible  in  evidence  without  regis- 
tration. N  MUHAMMAD  IBRAHIM  v,  YADO,  A,  I.  R.  1926 
Nag.  238  553 

— f.17f  construction  of -^Benefit  of  doult. 

Section  17  of  the  Registration  Act  must  be  strictly 
construed  and  if  there  is  any  doubt  whether  a  docu- 
ment is  clearly  brought  within  its  purview,  the  benefit 
of  the  doubt  must  be  given  to  the  person  who  wants 
the  Court  to  receive  it  in  evidence.  L  ABDUL  QADIR 
v.  IfcAHl  BAKHSH  791 
8. 17f  construction  of — Further  charge  for  less 

than  Rs,  100 — Registration 

Section  17  of  the  Registration  Act  must  be  strictly 
construed  and  unless  a  document  is  clearly  brought 
within  its  purview  non-registration  is  no  bar  to  the 
document  being  admitted  in  evidence.  In  cases  of 
doubt,  the  benefit  of  doubt  must  be  given  to  the 
person  who  wants  the  Court  to  receive  the  document 
m  evidence. 

A  deed  creating  a  further  charge  for  less  than 
Re.  100,  which  does  not  supersede  the  previous  mort- 
gage and  substitute  a  new  one  consolidating  the 
previous  one,  is  not  compulsorily  registralue.  L 
LADHA  SINGH  v.  SUNPAR  SINGH  762 

— ; 8.  17— Transfer  of  Property  Act  (IV  of 

188&),   s.  61r- Sale-deed — Agreement  to  re-convey — 

Registration,  whether  necessary. 

Where  a  registered  sale-deed  is  followed  by  an 
agreement  to  re-convey,  and  the  latter  can  be  treated 
as  an  altogether  separate  transaction  from  the  sale- 
deed  itself,  then  under  s.  54  of  the  Transfer  of  Pro- 
perty Act,  the  agreement  vests  no  interest  in  the 
property  in  favour  of  the  vendor  and  does  not  require 
to  be  registered,  But  if  the  agreement  to  re-convey 


Registration  Act— contd, 

is  really  a  part  and  parcel  of  the  transaction  of  sale, 
which  is  only  partly  evidenced  by  the  registered  deed 
of  sale,  then  the  agreement  to  re-convey  must  also 
ba  registered.  In  other  words,  when  a  transaction  is 
evidenced  by  a  document  which  is  in  effect  divided 
into  two  parts,  one  of  which  is  registered  and  the 
other  is  not,  then  the  law  looks  to  what  is  the  real 
transaction  between  the  parties,  and  demands  that 
the  whole  document  evidencing  that  transaction  must 
be  registered,  whether  it  consists  of  one  part  or  two. 
Per  Coyajee,  J,— The  question  whether  an  agree- 
ment to  re-convey  immoveable  property  exceeding 
Rs  99  in  value  does  or  does  not  require  to  be  regis- 
tered must,  in  each  case,  be  decided  on  a  consideration 
of  the  contents  of  the  document  itself  and  of  such 
facts  as  might  be  proved  for  the  purpose  of  showing 
in  what  manner  the  language  of  the  document  ia 
related  to  existing  facts.  Proximity  of  time,  or  even 
the  identity  of  the  dates  of  the  two  documents,  is 
not  the  decisive  circumstance  in  all  cases  B  QAJANAK 
NAKAYAN  PATKAR  v  JIVANQIRI  CHAMBIOIRI,  27  Bom. 
JL.  R.  1465;  A.  I.  R.  1926  Bom.  131  527 


•  3. 17  (1)  (d)—  Lease  reserving  yearly  rent. 


A  mere  recital  of  an  annual  rate  of  rent  in  a  lease 
does  not  constitute  it  a  lease  reserving  a  yearly  rent 
within  the  meaning  of  s  17  (1)  (d)  of  the  Registration 
Act.    L  AISHAN  v  MUNICIPAL  COMMITTEE  5SS6 
S.  28 — Place  of  registration—Portion  of  pro- 
perty included  in  deed  within  jurisdiction  of  Sub- 
Registrar — Intention  tore-convey  such  portion,  effect 
of — Registration,  validity  of. 

Where  a  portion  of  the  propeity  comprised  in  a 
deed  of  transfer  is  within  the  jurisdiction  of  a  sub- 
Registrar,  he  has  jurisdiction  to  register  the  deed,  and 
evidence  cannot  subsequently  be  led  to  show  that 
the  intention  of  the  parties  was  to  re-convey  such 
portion  to  the  transferor  after  registration  of  the 
deed  had  been  effected  Even  on  pi  oof  of  such  inten- 
tion the  registration  of  the  deed  would  not  be  rendered 
invalid.  B  VisHrANATHBHAT  ANNABHAT  v.  MALLAPPA 
NINQAPPA,  27  Bom.  L.  R  1103;  49  B.  821;  A.  I.  R.  1925 
Bom.  514  628 

S.  28— PJace  of  registration —Property  in- 
cluded bona  fide  in  sale-deed  to  give  jurisdiction  to 
particular  Sub-Registrar—Fraud,  absence  of— Re- 
gistration, validity  of. 

In  a  proceeding  for  registration  of  a  document  the 
question  of  title  to  the  pioperty  purporting  to  be  con- 
veyed by  the  document  cannot  be  gone  into.  Section 
28  of  the  Registration  Act  does  not  require  anything 
more  than  the  existence  of  a  property  within  the 
jurisdiction  of  a  particular  Sub-Kegistrar  in  order  to 
entitle  him  to  register  a  document  transferring  that 
property. 

Where  a  vendor  in  order  to  enable  himself  to 
register  a  sale-deed  relating  to  certain  property  in 
the  office  of  a  particular  Sub-Registrar  obtains  a  con- 
veyance in  his  own  name  of  certain  property  situated 
within  the  jurisdiction  of  that  Bub-Registrar  and 
then,  includes  it  in  the  sale-deed  executed  by  him,  the 
registration  of  the  sale-deed  by  that  particular  Sub* 
Registrar,  in  the  absence  of  any  intention  to  defraud, 
ia  perfectly  valid.  Pat  JASODA  KOBR  v.  JANAK  MISSEB, 
4  Pat.  394;  A.  I  R.  1925  Pat.  787  1 034 

— 88.  32,  33—  Presentation,     what     amounto 

to— Deed  executed  by  pardanashin  woman  handed 
over  to  Sub-Registrar  by  husband,  effect  of. 
The  presentation  of  a  document  for  registration  ia  ft 
question  of  fact  requiring  no  formality. 


Vol.  92] 


GENERAL  INDEX. 


1135 


Registration  Act— concld. 

The  husband  of  a  pzrdanashin  lady  went  to  a  Sub- 
Registrar  and  handing  over  to  the  latter  a  deed  exe- 
cuted by  his  wife  requested  him  to  go  to  his  house 
and  register  the  deed 

Held,  that  the  handing  over  of  the  deed  to  -  the  Sub- 
Registrar  by  the  husband  did  not  amount  to  "presenta- 
tion" and  did  not  preclude  a  subsequent  piesentation 
of  the  deed  by  the  executant  heiself  A  YASIN  BIBI 
v.  MUNWAU  HUSSAIN,  22  A  L  J  700,  A.  I  R  li)24  Ail 
799,  46  A.  743,  L  R.  5  A  524  Oiv  345 

— * 8*  49 — Unregistered,  deed  of  gift   admissibil- 

ity  of— Possession,    nature    of— Intention   to   make 

gift,  proof  of 

An  unregistered  deed  of  gift  affecting  an  interest 
in  immoveable  property  cannot,  by  virtue  of  the  pro- 
visions of  s  49  of  the  Registration  Act,  be  received  m 
evidence  either  to  prove  the  fact  of  the  gift  or  to 
prove  that  the  possession  of  the  donee  over  the  pro- 
perty purported  to  be  gifted  was  that  of  an  owner 
and  could  be  referred  to  the  gift  The  deed  can,  at 
the  most,  be  referred  to  as  evidence  of  an  intention 
to  make  a  gift  M  NKELAM  VENKATARATANAMMA  v. 
VINJAMOORIVARAHA,  49  M  L  J  756,  (1926)  M  W  N 
44,A.LR  1926  Mad  191  470 

R6l!giOU8    endowment— Person      not    entitled     to 

benefit   permitted     to   share  -  Trustees,    duty    of — 

Zoroastnan  Temple  at  Rangoon — Non-Pars  L  Zoroas- 

trian,  whether  entitled  to  benefit — Injunction 

The  Zoroastnan  religion  not  only  permits  but 
enjoins  the  conversion  to  that  religion  of  persons  born 
in  other  religions  and  of  non-Zoroastnan  parents 

In  spite  of  such  permission,  however,  the  Zoroas- 
trians,  ever  since  their  advent  into  India,  have  ne\er 
attempted  to  convert  anyone  into  their  religion 

The  benefits  of  the  Zoroastnan  Temple  at  Rangoon 
are  confined  to  persons  who  possess  the  double 
qualification  of  being  Zoroastiians  and  lacial  Parsis, 
and  Zoroastnans,  who  aie  not  racial  Parsis,  have 
no  right  of  entering  into  the  Temple  and  may,  there- 
fore, be  excluded  or  extruded  from  the  Temple  by  the 
Trustees 

But  it  does  not  follow  that  the  trustees  are  bound 
to  exclude  such  non-Parsi  Zoroastrians  from  the 
Temple  Still  less  does  it  follow  that  in  an  action  to 
which  the  trustees  are  not  paities,  and  in  winch,  there- 
fore, no  indirect  remedy  can  be  claimed,  a  direct  claim 
by  the  Paisi  Zoioastnans  can  be  supported  against  a 
non-Parsi  Zoroastuan  who  worships  m  the  temple,  as 
if  for  a  tort  committed  by  such  person 

Fora  trespass  upon  temple  land,  the  only  pei  son 
who  can  bring  an  action  for  injunction  is  the  peisoii 
in  possession  of  the  land,  that  is,  the  tiustee  It  may 
be  that  in  India  it  may  be  convenient  to  allow  such  a 
suit  by  certain  worshippers  against  others  But  if  so, 
it  must,  at  any  rate,  be  established  that  the  juxt- 
aposition of  the  two  sets  of  persons  is  so  repugnant 
to  their  habits  of  mind  that  the  entrance  of  one  set 
into  the  'Temple  entails  the  departure  of  the  othei ,  so 
that  it  is,  as  it  were,  trespass  to  the  person 

When  property  is  set  apart  for  public  or  charitable 
uses,  it  will  be  a  malversation  to  apply  any  of  the 
funds  foi  persons  who  are  not  objects  of  the  trust 
Those  who  are  objects  of  the  trust  must  have  all  the 
benefits  they  require  ;  and  if  there  is  a  surplus,  it 
must  be  left  to  the  Courts  to  make  a  cypres  applica- 
tion of  it  But  when  the  subject-matter  of  such  a 
trust  or  charity  is  the  rendering  of  some  convenience 
or  service  of  such  a  nature  that  it  will  not  hurt  the 
lawful  recipients  if  others  share  with  them,  the 
aot  bound  to  exclude  persons  who  have 


Religious  endowment— concld 

no  legal  title  to  share.  They  may  do  so  ,  they  may 
treat  all  such  persons  as  tiespassers  and  say  Sic 
volo  sic  jubeo,  ztet  pioiatione  voluntas  But  if  they 
choose  to  admit  to  the  benefit  of  t-ome  park  or  garden 
established  for  a  paiticular  district  some  persons  from 
over  the  border  or  to  admit  to  a  public  library 
destined  for  a  particular  Municipality  persons  from 
outside,  or  admit  to  the  hearing  of  a  lecture  by  a 
University  Pjofessoi  persons  not  members  of  the 
Uimersity,  this  of  itself  furnishes  no  ground  of  com- 
plaint If  the  numbers  admitted  are  too  large  or  the 
persons  are  disorderly  or  unpleasant  in  their  habits 
or  in  any  way  substantially  interfere  with  the  con- 
venience or  benefit  of  those  for  whom  the  endowment 
was  created,  the  ti  ustees  may  be  required  to  exclude 
them.  But  the  mere  claim  ol  A  that  B  shall  not  share 
in  such  a  benefit  because  B  is  not  within  the  terms 
of  the  foundation  is  not  one  that  Courts  would  en- 
courage PCD  R  K  SAKLAT  v  BELLA,  23  A  L.  J. 
1016,  A  I  R  1925  P  O  298,  49  M  L  J  821;  43  C  L. 
J  23,  30  C  W.  N  289,  28  Bom  L  R  161,  3  R.  582 

200 
Religious  Endowments  Act  (XX  of  1863),  s.  18 

— Order  refusing  leave  to  sue —Appeal,  whether  lies. 

No  appeal  lies  against  an  order  passed  under  s  18 
of  the  Religious  Endowments  Act  Pat  WASHIHAN  v, 
Mm  NAWABALI,  3  Pat.  1018,  A.  I  R  1025  Pat  138;  7  P 
L  T  421  133 
8. 1 9~-  Committee  of  management — Death  of 

member— Suit  to  compel  surviving  members    to  hold 

election— Decree—Election,  whether  can  be  set   aside 

by  Court. 

On  the  death  of  one  of  the  members  of  a  Committee 
of  management  appointed  under  the  provisions  of  the 
Religious  Endowments  Act,  some  of  the  persons  in- 
terested in  the  endowment  instituted  a  suit  against  the 
surviving  members  of  the  Committee  praying  that  the 
Court  should  direct  the  defendants  to  take  proper 
steps  for  the  holding  of  an  election  to  fill  the  vacancy 
caused  by  the  death  of  one  of  the  members  The  suit 
was  decreed  and  the  defendants  were  directed  to  hold 
an  election  after  issuing  proper  notices  An  election 
was  accordingly  held,  but  it  was  set  aside  on  the 
application  of  one  of  the  defendants  and  the  suit  was 
dismissed 

Held,  that  the  suit  having  been  once  decreed  the 
Court  was  not  competent  to  entertain  any  subsequent 
application  by  any  party  and  had  no  power  to  set  aside 
the  election  which  had  been  held  in  pursuance  of  iU 
own  order.  C  KHURSUED  MEERZA  v.  FAIZUDDIN  ALI 

902 
Remand,  what   amounts  to.    Set  C.  P.  C  ,  1908,  O. 

XLI,R  25  370 

Repealing  and  Amending  Act  (XI  of  1923), 

See  LIMITATION  ACT,  190/,  Sen  I,  ART.  177  330 

Res  Judlcata. 

See  C  P  C  ,  1908,  O  XXI,  R.  100  326 

See  EXECUTION  OF  DFCREK  47 
Execution  Court  granting  relief  not  given  by 

decree  See  C  P  C,  1908,  0.  XXXIV,  RR  4,5  254 
Ex  parte  order  without  jurisdiction, 

Any  ex  parte  order  in  a  proceeding  between  the 
parties  made  without  jurisdiction  does  not  operate  as 
res  judicata  in  a  subsequent  suit  between  the  parties. 
C  SASI  BHUSAN  MALLICK  v.  SADANANDA  MALLICK  845 
Revision. 

See  (i)  0  P.  0.,  1908,  s.  115. 
(it)  OB.  P.O.,  1898,8  439 
(tit)  PROVINCIAL  SMALL  OAUSB  COURTS  ACT  1887, 
9*  25, 


INDIAN  OASES. 


1186 

Second  appeal.    See  APPEAL  (SECOND). 

-off.    See  ALSO  0.  P.  C ,  190$,  0  VIII,  R.  6  AND 
0.  XXI,  B<  18  BTC. 

Contribution,  suit  for-  -Rent-decree  paid  off 

by  co-tenant —Suit  to  recover  share  of  other  co-tenant 
— Demands  arising  out  of  different  transactions, 
whether  can  be  set  off— Plaintiff  managing  tenancy 
lands  as  agent  subsequent  to  period  included  in  rent- 
,  ^4ecree,  effect  of. 

Plaintiff  and  defendant  were  co-tenants  of  certain 
occupancy  fields  The  landlord  sued  them  for  arrears 
of  rent  in  respect  of  certain  years  and  obtained 
a  deoree  which  the  plaintiff  paid  up,  Plaintiff 
then  sued  the  defendant  to  recover  the  latter's 
share  of  the  decretal  amount  The  defendant  ad- 
mitted liability  in  respect  of  the  amount  claimed  but 
resisted  the  claim  on  the  ground  that  the  plaintiff 
was  the  manager  of  the  tenancy  lands  and  was  liable 
to  account  for  the  profits  thereof  up  to  the  date  of 
the  institution  of  the  suit  and  could  not,  therefore, 
sue  to  recover  what  could  only  be  an  item  of  debt 
against  the  defendant  in  the  account  to  be  rendered 
by  the  plaintiff  It  was  found  that  if  the  plaintiff 
W«6  managing  the  tenancy  lands  as  the  defendant's 
agent  such  management  commenced  after  the  expiry 
of  the  years  in  respect  of  which  the  rent-decree 
satisfied  by  the  plaintiff  had  been  obtained  by  the 
landlord.  ,  t  .  .  _ 

geld,  that  the  defendant  could  not  insist  on  having 
a  demand  not  arising  out  of  the  agency  treated  as 
a  debit  item  in  any  account  that  the  plaintiff  might 
have  to  render  in  respect  of  his  agency,  nor  could 
the  defendant  claim  an  equitable  set-off  in  respect 
of  such  demand,  since  the  demands  of  the  plaintiff 
and  the  defendant  had  not  arisen  out  of  the  samo 
transaction.  N  ZUKOOBAI  v.  BHALSINQH,  8  N.  L  J.  205, 
A,  I.  R.  1926  Nag.  155  74 

Cross- claim,— Equitable     set-off— Hindu  Law 

—Illegal   act  of  father— Sons,  liability    of— Decree, 

A  executed  a  sale  of  certain  property  in  favour  of 
w,  ajx(j  pUt  him  in  possession  of  it.  He  further 
attrteed  to  indemnify  him  in  the  event  of  his  losing 
TDOssession.  The  vendee  lost  possession  upon  a  suit 
haVinjr  been  brought  by  the  relatives  ot  A  to  set 
aside  the  sale.  Subsequently  the  vendee  brought  a 
suit  to  recover  the  consideration-money  and  the 
cteMfdant-vendor  claimed  equitable  set-off  in  the 
itSape  of  deduction  on  account  of  the  profits  realised 
bv  tne  vendee  during  his  period  of  possession  . 

Held  (1)  that  the  suit  was  one  under  Art.  97  of 
Sch  I  of  the  Limitation  Act  for  money  paid  upon  an 
existing  consideration  which  afterwards  failed  ; 

(2V  that  the  claim  for  profits  was  not  a  cross-claim 
asking  out  of  the  same  transaction  such  as  could  be 
de«cribed  as  a  claim  to  an  equitable  set-off  and, 
*Vi»r»fore  could  not  be  allowed, 
^e^est  of  liability  of  a  Hindu  son  for  an  illegal 
eM  committed  by  his  father  would  rather  be  the 
T*tf#Doae  for  whicn  the  father  s  act  was  committed  than 
?Kft  lettaiity  of  the  act  itself. 

Where  a  sale  made  by  a  Hiridu  was  set  aside  as 
*>*££  without  family  necessity  and  the  vendee  being 
^t«Led  Of  possession  sued  to  recover  the  purchaee- 
muUr  by  proceeding  against  the  family  property  in 
JSShafcds  of  *  the  son  of  the  vendor  who  had  been 
brought  on  the  record  as  the  legal  representative  of 
hL  father  who  died  during  pendency  of  the  suit  : 

tMd  that  tae  proper  decree  to   pass  would   be  a 
unst  tfce  son  as  the  legal  representative  of 
and  capable  of  execution  against  him  so 


[1926 


Set-off— concld. 


far  as  he  held  property  which  was  liable  to  attachment 
under  the  Hindu  Law  for  his  father's  debts.  O  KxLtt 
MAL  v.  PARTAB  SINGH,  A.  I.  R  1926  Oudh  301  787 

Specific  performance— Optwn  to  obtain  property 
on  payment  of  certain  sum  within  period  mentioned, 
nature  of— Consideration,  absence  of— Offer,  whe- 
ther can  be  accepted  after  death  of  party  to  whom 
offer  is  made 

^Defendants'  predecessor  agreed  with  the  plaintiffs* 
predecessors  that  the  latter  could,  within  a  period  of 
ten  years  from  the  date  of  the  agreement,  tender  a 
certain  sum  of  money  and  demand  conveyance  of 
certain  property  from  the  former,  In  a  suit  for 
specific  perioi  mance  of  the  agreement  by  the  plaintiffs 
against  the  defendants' 

Held,  (I)  that  if  the  agreement  was  to  be  treated  as 
a  contract  it  was  unenforceble  as  being  without  con- 
sideration , 

(2)  that  if  the  agreement  amounted  to  a  mere  offer, 
not  having  been  accepted  by  the  persons  to  whom  it 
was  made  in  their  lifetime,  it  could  not  be  accepted, 
fey  their  successors-iii-interest  after  their  death,  and 
was  not,  therefore,  capable  of  being  sued  upon.  B 
DUMA  TOMA  RUMAV  v  NATHU  FARSHA  KUREL,  27  Bom. 
L.  R.  24U,  A.  I  R  1925  Bom.  431  1 6 

Specific  Relief  Act  (I  of  1877),  8.  9— Decree  for 

possession— Execution  of  decree— Obstruction.    See 
C  P  0  ,  1908,  0.  XXI,  R  97  61 

.__  S.  9 — Tenant,    dispossession     of — Summary 

suit  by  landlord  against  trespasser,  maintainability 
of -Reiision— Interference    by    High    Court—Civil 
Procedure  Code    (Act  V  of  WOS),  s  115. 
A  plaintiff  who  seeks  possession  summarily   under 
s  9  of  the  Specific  Relief  Act  must  show  that  at  the 
date  of  the  suit   he    is  entitled    to  such    relief,    A 
landlord,  therefore,    cannot  bring  a  suit  in  ejectment 
under    this  section  where    his  tenant  has  been    dis- 
possessed by  a  third  party 

The  High  Court  will  not  ordinarily  interfere  by  way 
of  revision  with    a  decree   under    s,  9  of  the  Specific 
Kehef  Act.    Where,  however,  the  remedy  under  the 
section  is    clear,  the  parties  will  not   necessarily  be 
driven  to  another    suit     M   VEERASWAMI  MUDALI    v. 
VBNKATACHALA  MUDALI,  22  L  W    448,  (1925)  M,  W,  N. 
763  A   I.  K.  1026  Mad  18.  50  M  L  J.  102  2O 
$S.  27  (C),   18   (b) —Suit    ror  specific   per- 
formance—Contract    to     sell— Vendor,  impeaching 
mortgage  by    predecessor-m-title— Mortgagee,  whether 
proper  party 

The  general  rule  is  that  in  a  suit  for  the  specific  per- 
formance of  a  contract  to  sell,  persons  who  do  not 
claim  under  the  parties  to  the  contract  and  are 
strangers  to  it  or  persons  claiming  adversely  to  both 
the  parties,  ought  not  to  be  made  parties 

A  person  setting  up  a  mortgage  in  his  favour 
executed  by  the  predecessor-m-title  of  a  vendor,  who 
impeaches  it  as  being  a  sham  transaction  and  with<- 
out  consideration,  is,  however,  a  person  whose  title 
could  be  displaced  by  the  vendor  and  against  whom, 
therefore,  the  contract  to  sell  could  under  s,  27  (c)  of 
the  Specific  Relief  Act  be  specifically  enforced.  In 
such  a  case  the  just  and  proper  course  would  be  to 
implead  also  as  party  to  the  suit  the  person  who  claims 
to  be  a  mortgagee  and  to  adjudicate  on  all  the  ques- 
tions in  the  suit  itself  so  as  to  enable  the  purchaser  to 
be  free  from  all  future  risk  and  liability.  M  MAYAP^A 
CHBTTIAR  v.  KOLANDAIVBLU  CHETTIAR,  (1926)  M.  \V,  Jfl". 
459;  A.  L  B.  1926  Mad.  597  7tff 

i  "-•  8,  42— Creation  of  evidence— Right  to  «ter 


Vol.  92] 


GENERAL  INDEX. 


113? 


Specific  Relief  Act  -concld 

Wherever  evidence  IB  being  created  which  might 
ultimately  result  in  disturbing  the  title  of  the  plaint- 
iff, he  has  a  cause  of  action  to  sue  under  aoction  42, 
Specific  Relief  Act  L  BHAGAT  SINGH  i\  MATHRA,  A  I 
R  1926  Lali.  275  982 
88,  54,  55.  See  C  P.  C  ,  190S<,  O  XXXIX, 

BR  1,2  259 

Stamp    Act    (Hot  1899),    8.2    (21)—  Lettet    em- 
powering to  sell  land—  Power-of -attorney 
A  letter  empowering    a  person  to  sell  the    laud  is 
not  a  power-of-attoi  ney  as   defined  in  the   Stamp  Act 
unless  it  empowers  him  to  sell  the    land  in  the  name 
of  the   writei   of  the  letter    L  KALA  KHAN  v  NATHT 
KHAN,  A  1  R  1926  Lah  229  990 

—  8.  35,Sch.  I,  Art.  1 — Unstamped  document  — 
Acknowledgment,  whether  evidence  of  debt—Oral 
evidence. 

Whether  an  acknowledgment  of  a  debt  was  execut- 
ed in  order  to  supply  evidence  of  such  debt  or  was 
a  mere  note  or  extract  of  accounts  cannot  be  decided 
on  the  terms  of  document  alone  Therefore,  if  such 
document  13  unstamped  it  cannot  be  held  to  be  in- 
admissible in  evidence  without  taking  oral  evidence 
as  to  the  purpose  foi  which  it  was  executed  M  RAMA- 

SWAMI  AlYANGARV    T    RAGHAVA  AllANOAR,    (1920)  M    W. 

N.  118  1046 

Succession  Act  (X  of   1865),  88.    101,103.    See 

HINDU  LAW— WILL  289 

Succession  Certificate  Act  (VII  of  1889),  8,25 

— Decision    under    Act,    whether    operates   as    res 

judicata 

A  decision  arnved  at  under  the  Succession  Certifi- 
cate Act  upon  a  question  of  right  between  the  parties 
does  not,  by  virtue  of  the  piovision  contained  in  s  25 
of  the  Act,  operate  to  bar  the  trial  of  the  same  quet- 
tion  in  any  suit  between  the  same  parties  L  MURLI 
DAS  v  AOHUT  DAS,  5  L.  105,  A.  I  R  1924  Lah  493 

138 
Suits  Valuation  Act  (VII  of   1887),  8.    3~  Local 

Rules     See  PRE-EMPTION  SUIT  986 

,^_, 8,  8.  See  COURT  FEES  ACT.  1870.  s.  7  (iv)  (c) 

730 
Surety,  release  of-r-Mi&onduct  of  party 

A  surety  to  the  Couit  for  a  party  to  the  suit  under- 
taking to  discharge  a  certain  obligation  m  the  event 
of  the  suit  being  decided  in  a  ceitam  mannei  is  not 
entitled  to  be  discharged  from  his  obligation  under 
the  surety  bond  on  account  of  any  alleged  misconduct 
of  such  party,  whatever  remedy  the  surety  may  have 
against  the  'party  him&elf  M  SEIMVASA  Ciihrn  v 
CHENNA  CHBTTI,  23  L.  W.  705  251 

Transfer  of  case,   See  CR.  P.  C ,  1898,  ser  526  to 

528 
Transfer  of  Property  Act  (IV  of  1882),  s,  6  (e)  ~ 

''Mere  right   to  sue"  what     is —School    Committee, 
transfer  by,  of  school  and  assets  to  another  Committee 
—Debt  due  to  first  Committee  on  account— Suit  to 
recover  by  second  Committee,    maintainability  of — 
Right  on  assignment,  whether  mere  right  to  sue. 
Where  a  certain  sum  of  money  is  due  from  a  peison, 
that  sum  is  recoverable  by  an  assignee  on  assignment, 
and  if  it  is  to  be  ascertained  only  on  taking  accounts, 
it  might  be  that  the  ngiit  to  take  the  account  mav  not 
be  assignable,  but  where    tho    allegation  is  th.it  the 
defendant  is    in  possession  of  funds  belonging    to   a 
person  or  that  the  defendant  is  accountable  for  a  defK 
mte  sum  of  money  to  a  person ,  such  a  claim  is  ti  ana- 
la  such  a  case  the  right  to  recover  the  money 


Transfer  of  Property  Act— contd, 

is  not  a  "mere  right  to  sue'1  within  the  meaning  of 
s  6  (e^  of  the  Transfer  of  Property  Act 

The  Committee  of  a  school  registered  under  the 
Societies  Registration  Act  transferred  to  another  Com- 
mittee the  institution  and  all  its  properties  moveable 
and  immoveable  and  deliveied  possession  thereof. 
In  a  suit  by  the  Secretary  of  the  second  Committee 
against  a  person  for  recovery  of  money  due  to  the 
first  Committee  of  the  school  in  the  matter  of  wrong- 
ful rendering  of  accounts  in  respect  of  certain  funds 
of  the  school 

Held,  (1)  that  the  right  of  the  first  Committee  to  sue 
for  and  recover  any  amount  due  to  that  Committee  did 
pass  to  the  second  Committee  and  the  plaintiff  was, 
therefore,  entitled  to  bring  a  suit  and  it  was  immate- 
rial that  the  specific  debt  was  not  mentioned  in  the 
schedule  to  the  deed  of  transfer, 

(2)  that  what  was  transferred  was  nob  a  mere 
right  to  sue  but  the  debt  that  was  due  by  the  defend- 
ant to  the  nrst  Committee  and,  therefore,  the  transfer 
did  not  oftend  against  s.  6  (e)  of  the  Transfer  of 
Property  Act  M  ADDEPALLI  VENKATA  GARUNADHA  v. 

AKELLAKESAVAllAMIAH,   50  M    L    J.    54,23   L.   W    314, 

(1926)  M.  W.  N.  149  &  450,  A.  I  R   1926  Mad,  417  973 

S.  14— Perpetuities,    rule  against — Transfer 

on  extinction  of  descendants 

A  transfer  of  property  in  favour  of  another,  to  take 
effect  on  the  extinction  of  the  transferor's  line  of  male 
descendants,  is  against  the  law  of  perpetuities  and 
cannot  be  given  effect  to  A  RAM  NEWAZ  v  NANKOO,  A. 
I  R  1926  All  283  401 
8.  40.  See  TRANSFER  OF  PROPERTY  ACT,  1882, 

s  100  348 

— §t  43 f  application  of — Transfer  by  rever* 

swner —Knowledge  of  transferee 

A  mortgagee  from  a  person  who  has,  on  the  date 
of  mortgage,  only  a  reversionary  interest  in  the  pro- 
perty moitgaged,  does  not,  if  he  is  aware  of  mortga- 
gor's true  interest  in  the  property,  acquire  any  right 
in  the  property  on  the  death  of  the  life-eatate-holder, 

It  is  only  when  a  transferee  is  led  into  the  belief  of 
absolute  title  on  the  part  of  the  transferor  and  acts 
on  the  representation  of  the  transferor,  that  he  is 
entitled  under  s  43,  Transfer  of  Property  Act,  to  take 
advantage  of  the  fact  that  the  transferor  later  on 
becomes  the  owner  of  the  property  If  that  were  not 
so  ss  6  and  43  of  the  Act  would  conflict.  A  MULRAJ 
v  LNDAR  SINGH,  A.  I.  R.  1926  All.  102,  48  A.  150  471 

S.  53— Limitation  Act  (IX  of  1908),   Sch.  I, 

Art  120 — Fraudulent   alienation — Suit  by  creditor* 

— Nature  of  suit — Individual    creditors,    right  of — 

Limitation — Starting  point 

A  suit  under  s  53,  Transfer  of  Property  Act,  to  set 
aside  a  fiaudulent  alienation  by  a  debtor  is  governed 
by  Art,  120  of  Sen  I  to  the  Limitation  Act 

The  right  of  suit  under  s  53,  Transfer  of  Property 
Act,  is  an  individual  right  which  each  creditor  has, 
although  if  one  creditor  obtains  a  decree  in  a  suit 
under  s  53  that  decree  accrues  to  the  benefit  of  the 
other  creditors  as  well 

Per  Venkatasubba  Rao,  J  — The  right  to  sue  under1 
s.  53,  Transfer  of  Property  Act,  accrues  when  a  creditor 
exeicises  his  option  of  avoiding  a  fraudulent  alienation 
and  the  starting  point  of  limitation  for  a  suit  by  him, 
therefore,  is  the  date  when  he  exercises  this  option. 

Per  Madhavan  Nair,  J  — The  starting  point  for 
limitation  for  a  suit  under  s  53,  Transfer  of  Property 
Act,  is  not  the  date  on  which  the  creditor  exercises  the 
option  to  avoid  the  transfer,  but  it  is  tno  date  oa 


1138 


INDIAN  OASES, 


Transfer  of  Property  Act-oontd, 

which  the  circumstances  entitling  the  creditor  to  have 
the  transfer  avoided,  first  become  known  to  him. 
M  GUNTUB  NARASIMHAM  v  NYAPAII  NARAYANARAO  OARU, 
22  L.  W,  592;  A.  I.  K.  1926  Mad  CO  405 

8.  54, 

See  MuiiAMMADAN7  LAW—  DowiiK  265 
See  PRE-EMPTION'                                                  757 
See  REGISTRATION  ACT,  1903,  s.  17  527 
8.  54__£aje_j '-Delivery     of    possession— Pro- 
perty already  in  possession  of  vendee 
In  the  case  of  an  unregistered  sale  of  property  of 
rupees  less  than  one  hundied  in  valu»    it  is  sufficient 
delivery    of  possession  under  s  51,    Transfer  of  Pro- 
perty Act,  that  the  property  is  already  in  the  posses- 
sion of  the  vendee    A  RAM  NATFI  SIMSH   v    GAJADIIAR 
LAL,A  I  R  1926  All  300                                       478 

— • 8.  55 — Vendor  and    purchaser  -Defect     in 

title,  whether  "material  defect" --Fraudulent  con- 
cealment of  defect-  Possession,  failtne  to  yive—Sale, 
whether  can  be  cancelled. 

A  defect  in  title  is  a  "material  defect"  within 
the  meaning  of  those  words  as  used  in  s  53  of  the 
Transfer  of  Property  Act 

Where  a  vendor  of  immoveable  property  fails  to 
disclose  to  the  purchaser  a  defect  m  the  title  which 
the  latter  could  not  have  himself  dibcovered,  or  fails 
to  deliver  possession  of  the  property  bold  to  the  pur- 
chaser, the  latter  is  entitled  to  cancel  the  sale  and 
to  sue  to  recover  the  purchase-money  paid  by  him 
together  with  the  incidental  expenses  mcuned  by 
him,  R  MAHOMED  SinDiqt?  LIKAN  SHOO,  A  J  R  1925 
Rang  372;  4  Bur  L.  J  15 1  766 

——8.      59 — -Mortgage—  Im  proper      attestation— 

Bond,   if  admissible    as  one  for  money 

A  mortgage-boid  for  a  sum  below    RH  100  is  not 

admissible  in  evidence  when  it  is  not  legally  attested 

A  mortgage-bond  which  cannot  be  proved   as  such 

can  be    admitted  m  evidence   as  a  simple   bond    for 

payment  of  money     C  DHANA  MOHAMMED  v    NABTULLA 

MOLLA,  A.  I  R.  1926  Cai  «37  948 

8.65  (G)— -Mortgage  -Mortgagee  empowered  to 

obtain  possession  of  portion  of  mortgaged  property  on 
payment  of  certain  amount  to  third  person-- 
Possession obtained  on  payment  of  larger  amount  - 
Mortgagor,  whether  liable  for  excess  amount  paid- 
Interest,  covenant  providing  for  payment  of,  up  to 
certain  date — Mortgagee,  whether  entitled  to  intciest 
after  date  fixed 

Where  a  mortgage-deed  empowers  the  mortgagee 
to  obtain  possession  of  a  portion  of  the  mortgaged 
propei  ly  from  a  third  person  on  payment  of  a  certain 
sum  of  money,  and  the  mortgagee,  in  order  to  obtain 
possession  of  the  property,  i^>  compelled  to  pay  a 
larger  amount  of  money  than  is  mentioned  in  the 
mortgage-deed,  the  mortgagor  IB  bound  to  bear  the 
whole  of  the  expenses  inquired  by  the  mortgagee  m 
obtaining  possession  of  such  property 

Where  a  mortgage-deed  expressly  provides  that 
interest  shall  not  be  payable  to  the  mortgagee  after  a 
certain,  date,  the  mortgagee  is  not  entitled  to  interest 
after  such  date  O  GAURI  SHANKAR  v  BtuiizoN'I'£K,sHAD, 
A.  I.  R  192GOudh207  17 

S.  74.  See  LIMITATION  ACT,  1908,  SCH  I,  ART. 

13->  118 

~ SS.  91,  %3-~  Contract  to  stll—  Vendee,  whether 

entitled  to  deposit  mortgage-money  in  Court 
A  person  who  has  merely  obtained    m  h«s  favour 
an  agreement  to  sell  property  carv>t  file  a  suit  for 
redemption  of  a  mortgage   on  it  and  is,  therefore,  not 


Transfer  of  Property  Act— contd, 

entitled  to  deposit  in  Court  the  mortgage-money  undetf 
s  83,  Transfer  of  Property  Act    M  MAVAPPA   CHETTIAK 

V.  KOLANDAIVELU   OHETT1AB,  (1926.)  M.  W     N    459;    A     I, 

R  l<)26Mad  597  71 S 

s.  95— Limitation  Act  (IX  of  1008),  Sch.  I, 

Aits  7/5,  120,  132— Decree  for  arrears  of  main-* 
Jenance  charged  on  immoveable  pro  petty— Decree 
paid  off  by  one  of  several  judgment- debtors— Charge, 
—Suit'  to  enforce  charge— Limitation,  commence- 
ment of — Interest,  whether  can  be  recovered— Charge, 
whether  can  be  enforced  against  bona  fide  purchaser 
for  value 

The  provisions  of  s  95  of  the  Transfer  of  Pioperty 
Act  are  not  confined  to  usuf  ructuai  y  mortgages  where 
the  mortgagee  obtains  possession,  but  the  words  as  to 
possession  are  to  be  read  as  applying  to  oases  where  it 
is  possible  from  the  natuie  of  the  mortgage  to  obtain 
posfaession 

Where  in  order  to  avoid  the  sale  of  certain  property 
charged  with  the  payment  of  a  maintenance  allow- 
ance, one  of  the  judgment-debtors  against  whom  the 
deciee  for  an  ears  of  maintenance  has  been  obtained 
pays  off  the  deciee,  he  obtains  a  charge  on  the  pro- 
perty m  rejspect  of  the  amount  of  the  shaiea  of 
the  other  judgment-debtors  which  they  were  liable  to 
pay  under  the  decree.  A  suit  to  enfoicc  such  a  charge 
is  governed  by  Ait  132  of  Sch  I  to  the  Limitation 
Act  and  the  peiiod  of  limitation  begins  to  run  from 
the  date  of  the  payment  by  the  plaintiff  ^o  far, 
however,  as  a  claim  to  interest  on  the  amount  paid 
by  the  plaintiff  on  behalf  of  the  defendants  is  c  on- 
cerned,  the  claim  would  be  governed  by  Art  115  of 
Sch  1  to  the  Limitation  Act  and  not  by  Art  120  and 
interest  would  be  iccoveiable  only  for  three  years 
Such  a  chaige  cannot,  however,  be  enforced  as 
against  an  auction-purchaser  who  has  purchased  the 
pioperty  in  good  faith  for  value  without  notice  0 
QAMAH  JAHAM  BKHAM  r.  MUNNI-Y  MIRZA,  12  O,  L  J  313- 
2  O  W  N.  413;  A  I  R.  1925  Oudh  613  559 

8.100 — Charge,  oral,  legality  of — Bona  iida 

purchaser  for  value,  whether  affected. 

A  charge  may  be  created  01  ally  in  India  If  it  is 
in  wilting  the  document  creating  it  must  be  registered. 

A  charge  cannot  be  enforced  ngamst  a  b^na  fide 
purchaser  for  value  and  the  absence  of  the  publicity 
which  is  secured  by  registration  cannot  in  the  case 
of  an  oral  charge  prejudice  the  light  of  third  paities 
dealing  with  the  pioperty  for  value  in  good  faith. 
N  AHMAD  BAIG  c  MODEL  WILL  NAGPUR,  LD  ,  A  I  R 
1026  Nag.  262  '  25 
S.  100-  -Landlord  and  tenant —Lien  for 

rent    over     produce- Mortgage  of  crops— Mortgagee 

taking  with  notice,  effect  of. 

A  person  \\lio  accepts  a  mortgage  over  standing 
ciops  from  a  tenant  with  notice  that  the  landlord  has 
a  hen  over  the  crops  for  the  payment  of  rent,  takes 
subject  to  such  hen 

It  is  the  usual  practice  in  Burma  for  landlords  to 
have  a  hen  ovei  the  paddy  reaped  by  the  tenants 
over  their  lands  R  MAUKG  HAN  v  Ko  OH,  AIR 
1925  Rang.  366,  4  Bur  L.  J.  180  688 
— S3, 100,  40— C/iar#e  created  by  decree- 
Enforcement  against  transferee  for  v^lue  without 

notice 

The  general  rule  is  that  where  the  owner  of  pro- 
perty creates  successive  rights  by  different  tranhactions 
entered  into  at  different  tmiee,  the  rights  will,  in  the 
absence  of  special  circumstances,  take  effect  in  order 
of  priority.  The  rule  laid  down  in  s.  40  of  the 


Vol.  92] 


GENERAL  INDEX, 


1139 


Transfer  of  Property  Act— conoid, 

fer  of  Property  Act  that  a  right  arising  out  of  contract 
and  not  amounting  to  an  interest  or  an  easement, 
cannot  be  enforced  against  a  transfeieo  for  value  with- 
out notice  has  no  application  to  an  obligation  creating 
a  charge  upon  property 

A  charge  created  by  a  deeiee  is  enfoioeable  against 
a  transferee  for  value  without  notice  A  MAHADLO 
PRASAU  jj  ANANIH  LAL,  22  A  L  J  887,  L  R  5  A  749 
CivtA  I  K  1925  All  60,  47  A  90  348 

*— -  S,  105,  See  PROVINCIAL  SMALL  CAUSL  Gonna 

ACT,  1887,  SCH  II,  CL  (8)  683 
_  g,  118—  Transf c i  of  piece  of  land  in  lieu 

of  grant    of    right  of    easement    Registeied    deed, 

whether  necessary, 

A  transaction  by  which  a  person  agrees  to  permit 
another  to  rest  the  beams  of  a  structmcon  his  wall 
and  to  open  cupboards  theiem  in  exchange  fur  a 
piece  of  land  of  the  value  of  less  than  fts  ICO  need 
not  be  m  writing  registered,  where  each  paity  has 
delivered  possession  to  the  other 

The  grant  of  an  casement  is  not  a  ttansfei  of 
ownership  of  immovoable  propeity  M  AODKPAI  u 
KQNDAY\AI>  YANDRU  VEKRANNA,  A.  I  R  1926  Mad  54,i 

672 
8,  123 

The  provision  of  the  Transfer  of  Pioperty  Act 
that  a  valid  gift  can  only  be  made  by  a  registered 
deed  does  not  apply  to  the  Punjab  L  FATEIJ  MUIHM- 
HADV  MITH\,A  I  R  1926  Lab  286  479 

Trust,  religious— Pro-note     by     trustees— Trust    pro- 
perty ,  liability  of 

Where  the  uralars  of  a  dfvasuom  execute  a  pro- 
missory note  in  their  capacity  as  uralais  lecitmg 
therein  that  the  amount  bonowed  is  due  to  the  payee 
from  the  devasuom,  the  payee  is  entitled  to  pioceed 
against  the  propeity  of  the*  deuaswum  on  pi  oof  of 
existence  of  necessity  for  the  loan  M  SHRRAMANIAM 
PATTER?'  VLLU  NAIR,  49  M  L  J  717,  22  L  W  749 
(1926)  M  W  N  36,  A  I  K  1926  Mad  249  481 

Trustee. 

See  C  P  0,  1S08,  s  2(11) 

See  C  P  C  ,  1908,  0  XXII,  R  10  520 

* — Debt,  incurring  of,    by    trustee— Suit    ajter 

ceasing  to  be  trustee—  Proper  decree 

Where,  a  trustee  incurs  a  debt  without  charging 
the  tiust  pioperties,  there  is  a  presumption  that  the 
creditor  lent  the  money  on  Ins  peisonal  credit 

In  a  suit  by  a  plaintiff  for  recovery  of  money  due 
for  fi reworks  supplied  to  the  defendant  as  trustee  of 
a  temple,  the  defendant  is  personally  liable,  even 
though  on  the  date  of  suit  ho  has  ce.ised  to  be  a, 
trustee  M  NARAYANASWAMI  PIILAL  v  GOPALAKRISHNA 
NAIDU,  (1925)M  W  N  780,  22  L  W.  618,  A  I  R 
1926 Mad  112,  50  M  L  J  48  483 

Trusts  Act  (II  Of  1882),  SS.  5,  6~~Trust   funds  lent 

to  merchant— Merchant,    whether  trustee—  lm>ohency 

of  merchant— Trust,  position  of 

Wheie  a  trustee  of  a  charitable    fund    lends   the 

trust  funds  to  a  mei chant,  tho  latter  does  not  hold 

the  funds  as  a  trustee  and  if  he  happen*,  to  become  an 

insolvent,  the  trust  must  rank  as  an  oidmaryeieditoi 

of  the  insolvent  m  the  insolvency  proceedings   S  In  re 

LALOHAND  DLOOMAL,  A.  I  R.  1925  Sind  259  1016 

8.   88 — Trust,    acceptance    of —Repudiation 

by  trustee 

A  person  who  accepts  a  trust  and  acts  upon  it  is 
stopped  from  afterwards  disputing  it  and  cannot 


Trusts  Act  --r-o 


bring  a  suit  in  his    personal  capacity  in  derogation  of 
the  trust 

Noi  ran  he  in  such  a  suit  claim  to  recoup  himself 
what  he  has  spent  fui  the  benefit  of  the  trust  M 
PA/HAVIY^  I»Y  TARAKAV  r  Alriii  KAPPA  TARAKAN,  23  L  W. 
1C,  50  M  I,  J  49,  A  1  K  1926  Mad  367  124 

U.  P.  Excise  Act  (IV  Of  1910),  s,  10  (2)  (f).  See  On 

P  0,  1898,  a  l()7  (1)  857 

_  —  ---  8.53  -Citmtiial  Piocrduie  Code  (Act  V  of 

1898  >,  8   nn     Search,    inegular     Conviction,  legality 

of 

An  nregulantv  in  the  search  does  not  render  illegal 
the  conviction  of  a  pcibon  who  is  found  in  possession 
of  an  excisable  aiticle  on  such  seaieh  A  ABDUA& 
HAM/  KHAN  v  KMI»J,UOR,  L  Ti  6  A  203  Or,  21  A  L  J. 
17,5,27(11  L  ,J  2G5.A  J  K  1926  All  188  441 

U.  P.  General  Clauses  Act  (I  of  1  904),  s,  4.    See 

IVCOMI  TAX  Arr,  192:?,  a  (6  257 

U.  P.  Land  Revenue  Act  (III  of  1901),  s.  39  (2)- 

•  Joint  hnldiiiq—Pai  tit  ion,  suit  /o?1,  whether  maintain- 

able 

Section  3()  (2)  of  the  TT  P  Land  Revenue  Act  does 
not  moan  that  no  di  vision  of  a  tenancy  holding  held 
by  two  or  more  tenants  should  be  effected  It  meiely 
«uys  that  jf  such  n  paitition  hns  been  ai  lived  at  and 
the  distribution  of  land  has  taken  place,  it  shall  not 
bo  lecorded  in  the  revenue  papeia  until  the  consent 
of  the  land-holder  has  been  obtained  The  section  is 
no  bar  to  a  claim  bv  one  of  seveial  joint  tenants  to 
get  Ins  flhpio  in  a  cnltivatoiy  holding  divided  by 
me<ms  of  a  paitition  suit  iiled  in  a  Civil  Court  0 

KARINflAN    J'     HARHIARDl.T,  30    \V     N    58,   130     L    J 

5,3  34 

-  _  —  8S.  110,  111,     113—  PflHffii'rt     proceeding-- 

Objection   iiled  a-flv   erpny  of  period  fixed,  whether 

can  be  entettaint'd 

Wheie  an  obieUiou  is  filed  m  a  partition  proceed- 
ing after  the  expny  of  th<*  time  fixed  for  filing  ob- 
jections m  a  pioclamation  made  undei  s  110  of  tl)e 
U  P  Land  Revenue  Act,  but  befoie  the  Court  has 
taken  anv  steps  undei  s  113  of  the  Act,  the  Coin  t  is 
not  precluded  1'iom  dealing  with  tho  objection,  and  if 
it  decides  it,  the  decision  vu  11  be  taken  to  be  under 
s  111  O  Rri)A\  SIMUI  v  KU.KA  SI\(,H,  A  1  K  1920 
OudhnOQ  903 

U,  P.  Municipalities  Act  (II  of  1916),  ss.  118,178, 

185,  186,307-  function  tooect  vhabulia—  Notice 

ptohibttmfj     stone  biackel?    t»     sitppoit     chabutra, 

r/?  >T€f](ird  nf  —  Offence 

Wheie  a  sanction  to  eicct  a  chabutia  docs  net 
limit  the  dmcietion  of  the  buildei  to  build  it  in  any 
paiticularfoim,  it  ih  o}^  41  to  him  to  eicct  stone  biackets 
foi  Huppoiting  the  new  <  habit  h  a  and  las  icf  .isal  to  stop 
the  election  ot  the  bidets  <r-n  a  notice  being  served 
on  him  undei  s  ISO  ot  the  U  I1  Municipalities  Act 
does  not  make  him  cunnnnllv  liable  A  R,\M  KARUP  i 
KMIMROH,  21  A  L  J  163,  A  J  K  11U5  All  122t  27  CY 
L  ^  250  48  A  230  420 

U.  P.  Village  PanchayatAct  ,'VI  of  1920),  ss,  31, 

32.    -SVeCii  P  C,18D8,s  139  870 

_____  S.  72.    Ac  Cu  P  0  ,  1898,  PS  133  to  143 

452 

Usurious  Loans  Act  (Xof  1918),  ss.  2  (3),   3- 

Suit  tn  redeem   pie  dyed  ornaments—-  lnteiestt    hiyh 

?af«  of-  Relief  whether  can  be  qmnted 

A  suit  by   a  debtoi    to  redeem    certain    oinaments 

plodded    by  him  with  the  defendant    doe3    not  fall 

within  the  purview  of  s.  2  (3)  of  the  Uiuuous  Loans 


1140 


INDIAN  OASES. 


[1056 


Usurious  Loans  Act- con  eld. 

Act,  and  s,  3  of  the  Act  has,  therefore,  no  application 
to  such  a  case.  B  CHUNILAL  MOKAMDAS  MAHWAUI  r. 
CHRISTOPHER,  27  Bom  L.  R.  H62;  A.  1.  R  1926  Bom 
65;  50  B.  107  368 

Vakalatnama,  defective,  appeal  filed  with— 
Subsequent  filing  of  valid  vakalatuaina,  effect  of 
— Secretary,  Municipal  Committee  signing  vakalat- 
nama— Ratification  by  President,  effect  oj  — 
Extension  of  time 

There  is  no  authority  for  the  proposition  that 
because  once  a  vakalatnana  has  not  been  objected  to, 
it  is  good  for  all  purposes  and  that  an  appeal  filed 
with  that  defective  vakalatnama  is  properly  liled 
Nor  does  a  new  power-of -attorney  validate  an  appeal 
BO  far  as  the  time  for  filing  an  appeal  is  concerned 
But  in  these  matters  a  Couit  should  not  be  too  meti- 
culous especially,  when  a  person  on  whose  bohalf 
the  appeal  was  filed  has  accepted  or  ratified  the  action 
of  the  person  who  filed  the  appeal  on  his  behalf. 

Therefore,  where  a  Municipal  Committee  or  its 
President  has  endorsed  the  action  of  the  Secietary  m 
signing  the  vakalatnama  for  iilmg  an  appeal  on  behalf 
of  the  Municipal  Committee,  and  the  opposite  party  has 
not  objected  to  the  vakalatnama  as  oiigmally  liled  in 
the  suit,  it  should  be  considered  that  the  Secretary 
was  empowered  by  the  Municipal  Committee  or  its 
President  to  instruct  the  Pleader  and  had  authority  to 
sign  the  vakalatnama  on  behalf  of  Municipal  Com- 
mittee. 

Under  the  above  mentioned  circumstances,  provisions 
of  s.  5  of  the  Limitation  Act  may  also  be  invoked,  if 
necessary,  for  extending  the  time  for  hhng  the  appeal 
L  ALLAH  BAKHSH  v.  MUNICIPAL  COMMITTEE,  AIR 
1926  Lah.  223  966 

Vendor    and     purchaser—  Co-purchasers— Excess 

price  paid  by  one — Possession,  suit  for,  by  other — 
Decree  conditional  on  payment  of  balance  due- 
Court,  jurisdiction  of 

If  one  of  two  co-purchasers  of  a  property  has  paid 
more  than  his  portion  of  the  purchase-money,  the 
Court,  in  a  suit  for  possession  of  his  Bhai  e  by  the 
other  purchaser,  can  order  that  he  must  pay  his 
portion  of  the  purchase-money  in  default,  befoie 
recovering  possession  M  POORANALINUAM  SEU\AI  v. 
VBERAYI,  22  L.  W,  782,  (1926)  M,  W.  N,  1H,  A  I  R. 
1926  Mad.  186  1O55 

Covenant  of  indemnity  against  lass—Pre- 
emption decree — Vendor's  liability 
A  vendor  who  by  virtue  of  a  clause  in  the  sale- 
deed  takes  upon  himself  to  recoup  any  loss  mcuired 
by  the  vendee  in  consequence  of  any  suit  ("kisi  gitm 
ka  dawa")  by  anybody  in  relation  to  the  pioperly 
Bold,  ie  bound  to  make  good  the  loss  on  the  vendee 
losing  his  land  on  a  pre-emption  decree  being  passed 
against  him.  L  SITA  RAM  v.  NANAK  CHAND.  A.  I  R 
1920  Lah.  182  313 

« Knowledge  of  defective  title-  Wilful  default — 

Breach  of  contract—Damages 

Where  a  vendor  contracts  to  sell  property  to  which 
he  knows  that  his  title  is  defective,  and  there  IB  a 
breach  of  the  contract  on  his  part,  the  conduct  of  the 
Vendor  is  equivalent  to  wilful  default,  and  he  is 
liable  to  pay  damages  according  to  tho  ordinary  rule, 
i  e.,  the  difference  between  the  contiact  puce  and  the 
market  price  of  the  property  at  the  date  of  the  breach, 
Although,  there  may  be  cases  in  which  it  may  be  found 
that  there  was  an  implied  contract  that  la  the  e\rent  of 
the  titl«  jproviag  to  be  defective  without  any  default  of 


Vendor  and  purchaser— concld. 

the  vendor,  he  should  not  be  liable  to  pay  damages 
according  to  the  ordinary  rule.  B  VALLABHDAS  TULSI- 
DAS  v  NAGARDAS  JUTHABHAI,  23  Bom.  L,  R.  1213  143 

Sale    of    goods- -Wrongful     repudiation   by 

buyer*  -Vendors  suit  for  damages— Vendor 8  ability 
to  deliver  goods,  question  of—Damages^  measure  of — 
Deposit  with  vendor,  whether  forfeited — Vendee, 
rights  of 

In  u  suit  for  damages  by  a  vendor  for  wrongful 
repudiation  of  goods,  he  cannot  be  defeated  merely 
by  its  being  shown  that  after  repudiation  by  the 
buyer,  he  had  not  the  goods  to  implement  the  contract 
actually  m  Ins  physical  possession  The  vendor  can 
show  that  ho  could  have  supplied  the  goods  contracted 
for  either  from  the  openmaiket  or  from  any  other 
source  and  in  cither  case  he  would  be  entitled  to  main- 
tain a  suit  for  damages  for  wrongful  repudiation. 

In  such  a  C.IJG  if  the  vendor  has  got  a  deposit  from 
the  vendee  towards  the  contract,  he  is  not  entitled  to 
keep  the  whole  amount  of  deposit  irrespective  of 
actual  damages  suft'ercd,  AVhere  the  actual  damage 
suffered  is  less  than  the  amount  of  deposit,  the  vendee 
is  entitled  to  refund  not  only,  of  the  amount  of  differ- 
ence between  the  two,  but  also  to  interest  thereon. 
M  MANLPALLI  SATANARAYANAMURTIII  v  THOMMANDRA 
ERIKALAPPA,  50  M  L.  J  150,  M  L  W.  396;  (1926)  M.  W. 
N.  282,  A  I.  R.  1926  Mad.  410  962 

Water  rights— Natural    stream  flowing  into  tank— 

Permanent  system  of  irrigation— Persons  irrigating 

lands  from  tank,  rights  of 

A  natural  stream  passing  through  a  jungle  area 
fell  into  a  tank  and  then  flowed  out  in  a  defined 
channel  into  a  second  tank,  the  water  of  which  had 
been  used  by  the  plaintiff  for  more  than  60  years 
for  the  iirigatiori  of  his  lands.  The  outlet  from  the 
lirst  tank  had  fallen  into  disrepair  several  years  ago 
and  the  Government  then  proposed  to  repair  the 
breach  in  such  a  manner  as  to  stop  the  flow  of  the 
water  from  tho  first  tank  into  the  channel  which 
conducted  the  water  into  the  second  tank  from  which 
tho  plaintiff  had  been  irrigating  his  lands  ; 

Held,  (1)  that  the  channel  sybtem  of  the  two  tanka 
having  formed  a  permanent  feature  of  the  irrigation 
system  of  the  country  and  not  being  intended  to  be 
temporary  and  the  plaintiff  having  utilized  water  for 
the  use  of  his  fields  for  more  than  60  years,  he  was 
entitled  to  the  continuance  of  that  flow  into  the  second 
tank; 

(2)  that   the  Government  were  entitled    to   repair 
the  breach  m  the  outlet  from  the  first  tank  inasmuch 
as  there  was  nothing  to  show    that    in  spite  of  the 
lapae  of  many  years  since  the  date  of  the  breach,  the 
Government  had  at  any  time  abandoned  the  idea  of 
restoring  the   breach  or  that  they  intended  the  state 
of  disrepair  to  be  permanent  , 

(3)  that  the  repairs  must,  however,  be  carried   out 
in  euch  a  manner  as  not  to  interfere  with  the  usual 
supply    of  water  necessary  to  irrigate  the  plaintiff's 
lands  from  the  second  tank     M   VEPURI  SUBBA*YA  v, 
SBCHBTARY  OF  STATE  FOB  INDIA  78 

Wilt,  execution  of —Undue  influence — Burden  of 
proof— Surrounding  circumstances — Pardanaehin 
lady  -Probabilities  of  the  case. 

If  a  person  impugns    a  Will  on  the  ground  that 
was  obtained    by  the    exercise  of    undue  infl 
excessive  persuasion  or  moral   coercion,  itj    lies 
him  to  establish  it» 


Vol.  98—1926] 


GENERAL  IND1SX—INDIAN  OASES. 


1141 


Will— contd. 

A  man  may  act  foolishly  and  even  heartlessly  if 
he  acts  with  full  comprehension  of  what  he  is  doing, 
the  Court  will  not  interfere  with  the  exercise  of 
his  volition  In  such  cases  the  decision  of  the  Court 
must  rest  not  upon  suspicion,  bub  upon  legal  grounds, 
established  by  legal  testimony. 

A  Will  executed  by  a  pardanashin  lady  in  plain 
language,  in  lieu  of  services  rendered  by  devisee,  and 
'otherwise  "natural  and  consistent  with  the  probabilities 
of  the  case,  must  be  upheld.  O  BALDEO  SINGH  v. 
GULAB  237 

Undue  influence, —Disposing  mind — Inference 

from  surrounding  circumstances. 

In  the  absence  of  direct  evidence  as  to  the  posses- 
sion of  a  disposing  mind  by  a  testator  at  the  time  of 
making  a  Will,  it  is  open  to  the  Court  to  infer  from 
the  surrounding  circumstances  of  the  case  the  exercise 
-of  undue  influence  over  the  testator. 


Will— concld. 

Where  the  Court  is  able  to  find  that  a  testator  at 
the  time  of  making  a  Will  was  in  a  very  weak  state 
of  health  and  was  under  the  influence  of  persons  who 
were  benefited  by  the  Will,  the  Will  must  be  rejected 
as  having  been  executed  by  the  testator  without  a 
disposing  mind.  L  PRAG  DEVI  v.  NATHUMAL,  7  L,  L  J 
230  183 

WORDS  AND  PHRASES:- 
Bon  a  fid  68,  meaning  of. 
A  bona  fide  act  is  one  done  with  due  care  and 

attention     L  PURAN  CBAND  v  EMPEROR  991 

Girwl,  meaning  of.    See  MORTGAGE  772 

Malik,  meaning  of     See  CUSTOM —SUCCESSION    657 
TO  pre-empt,  meaning  of.    See  AGRA  PRE-EMPTION" 

ACT,  1922,  s.  12  (3)  1 

Writ    Of      certiorarl.      See        MADRAS       DISTRICT 

MUNICIPALITIES  ACT,  1920,  s  13  ETC  818 

Zoroastrian  temple.       See  RELIGIOUS  ENDOWMENT 

2OO